 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Allen v. State4/2/2002
note throughout the trial you have been conferring with [defense counsel]. And I would urge you to continue to do so.
At the conclusion of the witnesses here today - I'm not going to delay this trial right now. I'll give you a chance to be heard on the record. Okay?
[APPELLANT]: Thank you, Your Honor.
The district court later allowed appellant to be heard outside the jury's presence, which we previously set forth in detail.
[ ] Appellant has not established how his comments actually (as opposed to hypothetically) prejudiced him to a degree that necessitated a mistrial or how the failure to make such a motion ultimately prejudiced his defense. Before making a motion, counsel must be aware of some basis in law or fact from which relief can be granted. Bloomquist, 914 P.2d at 821. Prejudice cannot result from counsel's failure to make such a motion when that relief is not available. Id. Appellant has not cited to anything in the record that suggests the jury was distracted from the evidence or that defense counsel's effectiveness was in any way diminished following the remarks. Absent sufficient actual prejudice to appellant, there was no basis in fact to support granting a mistrial. Ryan v. State, 988 P.2d 46, 62 (Wyo. 1999).
[ ] It is clear from what transpired when appellant later elaborated on his concerns to the district court that appellant essentially placed the issue of defense counsel's continued representation before the district court. In light of that discussion, the district court's ruling on the issue, and our finding that appellant did not thereby demonstrate good cause to justify substituting counsel, a formal motion to withdraw would have been superfluous.
E. Failure to Request Homicide by Vehicle Jury Instruction
[ ] Appellant argues that his defense counsel was ineffective for not requesting a jury instruction on the elements of homicide by vehicle pursuant to Wyo. Stat. Ann. § 6-2-106(a). According to appellant, homicide by vehicle is a lesser-included offense of aggravated homicide by vehicle, the evidence supported giving such an instruction, and the instruction would not have been contrary to the defense's theory of the case. In support of their respective arguments, appellant cites to Bloomquist, 914 P.2d 812, and the State cites to Balsley v. State, 668 P.2d 1324 (Wyo. 1983). Neither party thoroughly analyzes the application of these cases to the elements of the putative lesser/greater offenses.
[ ] Wyo. Stat. Ann. § 6-2-106 provides, in pertinent part:
(a) Except as provided in subsection (b) of this section, a person is guilty of homicide by vehicle and shall be fined not more than two thousand dollars ($2,000.00) or imprisoned in the county jail for not more than one (1) year, or both, if he operates or drives a vehicle in a criminally negligent manner, and his conduct is the proximate cause of the death of another person. Evidence of a violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except for evidence of a violation of W.S. 10-6-103, 31-5-233 and 41-13-206, is admissible in any prosecution under this section.
(b) A person is guilty of aggravated homicide by vehicle and shall be punished by imprisonment in the penitentiary for not more than twe nty (20) years, if:
(i) While operating or driving a vehicle in violation of W.S. 10-6-103, 31-5-233 or 41-13-206, he causes the death of another person and the violation is the proximate cause of the death; or
(ii) He operates or drives a vehicle in a reckless manner, and his conduct is the proximate cause of the death of another person.
Wyo. Stat. Ann.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Wyoming DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|