               IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 123

                                                           APRIL TERM, A.D. 2015

                                                                     September 16, 2015

JASON CHRISTOPHER DURKEE,

Appellant
(Defendant),

v.                                                     S-14-0307

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Laramie County
                       The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D.
      Jackson, Faculty Director, Prosecution Assistance Program; A. Walker Steinhage,
      Student Director; Holli Welch, Student Intern. Argument by Ms. Welch.

Before BURKE, C.J., and KITE*, DAVIS, and FOX, JJ, and KAUTZ, D.J.**

*Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5
of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was
reassigned to act on this matter on August 4, 2015.

**Justice Kautz was a district judge at the time of oral argument. He was sworn in as a Justice
on August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KAUTZ, Justice.

[¶1] Jason Christopher Durkee was convicted after a jury trial of driving while under
the influence of methamphetamine and aggravated vehicular homicide based upon
recklessness. He claims his constitutional right to a speedy trial was violated because
637 days passed between the initial charges and his trial. Applying the test from Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), we conclude the delay
did not substantially impair his right to a fair trial. We, therefore, affirm Mr. Durkee’s
convictions.

                                           ISSUE

[¶2] Mr. Durkee presents the following issue on appeal, which we rephrase as a
question:

       Was Mr. Durkee’s constitutional right to a speedy trial violated in a case
       that took over 630 days between his initial arrest and the case going to trial?

The State’s issue is similar, although phrased in greater detail.

                                          FACTS

[¶3] On February 21, 2012, Mr. Durkee was delivering food for a Chinese restaurant in
Cheyenne, Wyoming. At approximately 2:30 p.m., he ran a red light and crashed his
pickup into Linda Gookin’s car. Mr. Durkee initially told law enforcement he ran the red
light because he had a sneezing fit. Ms. Gookin was declared dead shortly after the
collision, and Mr. Durkee provided a blood sample for toxicology testing. The Wyoming
Department of Health tested Mr. Durkee’s blood sample and found it was presumptively
positive for amphetamine. The sample was then sent to a Colorado lab for specific
methamphetamine testing, which was also positive.

[¶4] In May 2012, Detective John Pederson of the Cheyenne Police Department
informed Mr. Durkee of the blood test results. Mr. Durkee admitted he smoked
methamphetamine for two hours the night before the collision. He acknowledged he had
not slept much, if any, that night, and he was “coming down” or “crashing” from the
methamphetamine high at the time of the collision. During the interview, Mr. Durkee
confessed he had lied about the sneezing fit and stated he was actually using the GPS on
his cell phone to locate the delivery address when he ran the red light, although he later
stated he was only holding the phone.

[¶5] On July 9, 2012, the Laramie County District Attorney’s office charged Mr.
Durkee with one count of driving while under the influence of methamphetamine (DUI)
in violation of Wyo. Stat. Ann. § 31-5-233(b)(iii)(B) and (e) (LexisNexis 2015) and one

                                              1
count of aggravated homicide by vehicle—DUI, in violation of Wyo. Stat. Ann. § 6-2-
106(b)(i) (LexisNexis 2015) or, in the alternative, one count of aggravated homicide by
vehicle – recklessness, in violation of § 6-2-106(b)(ii). The district court arraigned him
on August 24, 2012, but due to a number of issues that will be discussed in detail below,
he was not brought to trial.

[¶6] On June 5, 2013, Mr. Durkee filed a motion to dismiss for violation of his right to
a trial within 180 days after arraignment under W.R.Cr.P. 48. He did not request the
charges be dismissed with prejudice or assert he had been prejudiced by the delay. The
State agreed the 180 day deadline under the rules of criminal procedure had expired on
April 25, 2013, but requested the case be dismissed without prejudice so charges could be
re-filed. The district court dismissed the case without prejudice on June 25, 2013. The
State re-filed identical charges that same day.

[¶7] The district court arraigned Mr. Durkee on the new charges on August 30, 2013,
and scheduled the trial to commence on November 12, 2013. Prior to that date, Mr.
Durkee filed a motion to dismiss for violation of his constitutional right to a speedy trial
and a motion to dismiss for “extreme prejudice.” Mr. Durkee claimed he was prejudiced
because his blood sample taken shortly after the collision had been destroyed by the lab
on March 27, 2013, and, therefore, was not available for independent testing by his
expert. The district court denied the motions, and Mr. Durkee immediately moved to
continue the trial.

[¶8] Mr. Durkee’s trial finally began on April 7, 2014. The trial proceedings took five
days and included the testimony of numerous witnesses. The police officers testified as
to the nature of the intersection, the crash, Ms. Gookin’s injuries, and their interactions
with Mr. Durkee. Detective Pederson recounted Mr. Durkee’s admissions during the
May 2012 interview. Eye witnesses stated that Mr. Durkee was speeding, ran the red
light and was using his telephone just prior to the collision. The Wyoming and Colorado
lab technicians testified his blood sample tested presumptively positive for amphetamine
and methamphetamine. The State’s expert toxicologist testified about the effects of
methamphetamine on individuals and the ability to drive safely. The State’s accident
reconstructionist estimated Mr. Durkee’s speed at the point of impact was 45 to 52 miles
per hour in the 40 mile per hour zone. The reconstructionist also explained that drivers
approaching the intersection had a clear view of the traffic light and Mr. Durkee had
plenty of time to stop after the light turned yellow and then red. The defense accident
reconstructionist estimated Mr. Durkee was traveling between 34 and 44 miles per hour.
The reconstructionists agreed there was no evidence Mr. Durkee braked prior to the
collision.

[¶9] The jury found Mr. Durkee guilty of DUI and aggravated homicide by vehicle
based upon recklessness but acquitted him of aggravated homicide by vehicle based upon
DUI. The district court sentenced him to serve nine to twelve years in prison on the

                                             2
homicide conviction and a concurrent term of 127 days on the DUI conviction. Mr.
Durkee filed a timely notice of appeal.

                                  STANDARD OF REVIEW

[¶10] We review a criminal defendant’s assertion that his constitutional right to a speedy
trial was violated de novo. Berry v. State, 2004 WY 81, ¶ 17, 93 P.3d 222, 227-28 (Wyo.
2004), citing Walters v. State, 2004 WY 37, ¶ 9, 87 P.3d 793, 795 (Wyo. 2004).

                                          DISCUSSION

[¶11] The Sixth Amendment to the United States Constitution states, in relevant part:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial[.]” Art. 1, § 10 of the Wyoming Constitution also guarantees a speedy trial on
criminal charges. 1 Claimed violations of the constitutional right to a speedy trial are
evaluated under the test announced by the United States Supreme Court in Barker, 407
U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Cosco v. State, 503 P.2d 1403, 1405
(Wyo. 1972). The Barker test includes four factors: “1) the length of the delay; 2) the
reason for the delay; 3) the defendant’s assertion of his right; and 4) the prejudice to the
defendant.” Berry, ¶ 31, 93 P.3d at 230-31, citing Harvey v. State, 774 P.2d 87, 92 (Wyo.
1989). See also Ortiz v. State, 2014 WY 60, ¶ 39, 326 P.3d 883, 893 (Wyo. 2014). “No
individual factor is dispositive;” rather, the factors are “considered together and balanced
in relation to all relevant circumstances.” Ortiz, ¶ 39, 326 P.3d at 893; Berry, ¶ 31, 93
P.3d at 231.

[¶12] The right to a timely inquiry into criminal charges is fundamental and the charging
authority is required to provide a prompt trial. It is self-evident a criminal defendant has
no duty to bring himself to trial. Harvey, 774 P.2d at 92, 96; Dickey v. Florida, 398 U.S.
30, 37–38, 90 S. Ct. 1564, 26 L. Ed. 2d 26 (1970). Thus, the burden is on the State to
prove delays in bringing a defendant to trial were reasonable and necessary. Harvey, 774
P.2d at 95. “The ultimate question is ‘whether the delay in bringing the accused to trial
was unreasonable, that is, whether it substantially impaired the right of the accused to a
fair trial.’” Berry, ¶ 31, 93 P.3d at 231, quoting Warner v. State, 2001 WY 67, ¶ 10, 28
P.3d 21, 26 (Wyo. 2001) (other citations omitted).

       1. Length of Delay



1
  Mr. Durkee does not argue his right to a speedy trial under W.R.Cr.P. 48 was violated. See Mascarenas
v. State, 2013 WY 163, 315 P.3d 656 (Wyo. 2013) and Walters v. State, 2004 WY 37, 87 P.3d 793 (Wyo.
2004) (considering constitutional speedy trial claims without Rule 48 analyses because the appellants
only asserted Sixth Amendment violations).


                                                  3
[¶13] “No precise length of delay automatically constitutes a violation of the right to a
speedy trial.” Berry, ¶ 32, 93 P.3d at 231. Instead, the length of the delay is a watershed
factor. If the delay is sufficiently lengthy, analysis of the other three factors is required.

                Some delays are so protracted that they must be considered
                presumptively prejudicial and weighed heavily in favor of the
                defendant in the balancing inquiry with the other factors.
                However, other delays are not so long as to be presumptively
                prejudicial, but still require further analysis of the remaining
                speedy trial factors.

Mascarenas, ¶ 12, 315 P.3d at 661, citing Berry, ¶¶ 32–34, 93 P.3d at 231–32. See also
Rhodes v. State, 2015 WY 60, ¶ 18, 348 P.3d 404, 411 (Wyo. 2015).2

[¶14] Under the constitutional analysis, the speedy trial clock begins at the time of arrest
or filing of an information or indictment, whichever occurs first. Ortiz, ¶ 40, 326 P.3d at
893; Berry, ¶ 32, 93 P.3d at 231. In cases where the prosecution dismisses charges and
subsequently re-files, the period when a defendant is neither under arrest nor subject to
formal charges is not counted in the speedy trial calculation. However, the periods of
formal charges are tacked together in calculating the length of delay. Ortiz, ¶ 40, 326
P.3d at 893, citing Boucher v. State, 2011 WY 2, ¶ 10, 245 P.3d 342, 349 (Wyo. 2011).
See also Rhodes, ¶ 17, 348 P.3d at 411.

[¶15] The parties’ computations of the length of delay in this case are almost identical.
The State calculates 637 days between the charging date and trial; Mr. Durkee’s
calculation of the delay is just one day less, i.e., 636 days. Under our precedent, a delay
of this length is considered presumptively prejudicial. For example, in Harvey, Berry and
Ortiz, supra, we found the delays of 562, 720 and 887 days, respectively, were
presumptively prejudicial. This speedy trial factor, therefore, weighs against the State
and triggers analysis of the other three Barker factors.

        2. Reasons for Delay


2
  The Tenth Circuit Court of Appeals uses one year as a touchstone for distinguishing between “ordinary”
and “presumptively prejudicial” delays in bringing a criminal defendant to trial. See United States v.
Seltzer, 595 F.3d 1170, 1176 (10th Cir. 2010). Like this Court, the Tenth Circuit states a finding of
presumptive prejudice does not automatically mean a defendant’s speedy trial right has been violated, it
simply means that the other Barker factors must be analyzed. Id. See also Doggett v. United States, 505
U.S. 647, 652, n.1, 112 S. Ct. 2686, 2691, n.1, 120 L. Ed. 2d 520 (1992) (“Depending on the nature of the
charges, the lower courts have generally found post accusation delay ‘presumptively prejudicial’ at least
as it approaches one year. We note that, as the term is used in this threshold context, ‘presumptive
prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at
which courts deem the delay unreasonable enough to trigger the Barker enquiry.” (citations omitted)).
                                                     4
[¶16] The second speedy trial factor examines the reasons for the delays in bringing a
criminal defendant to trial and which party was responsible for the each period of delay.
We weigh the delays caused by the State against those caused by the defendant, keeping
in mind it is the State’s burden to bring a defendant to trial in a timely manner and it must
show that the delays were reasonable and necessary. Harvey, 774 P.2d at 95. Certain
delays are assigned to the defendant and “may disentitle him to speedy trial safeguards.”
Berry, ¶ 35, 93 P.3d at 232. These include, “delays attributable to changes in defense
counsel, to the defendant’s requests for continuances, and to the defendant’s pretrial
motions.’” Ortiz, ¶ 42, 326 P.3d at 893, quoting Miller v. State, 2009 WY 125, ¶ 40, 217
P.3d 793, 805 (Wyo. 2009). With regard to delays allocated to the prosecution, we apply
the following analysis:

              A deliberate attempt to delay the trial in order to hamper the
              defense should be weighted heavily against the government.
              A more neutral reason such as negligence or overcrowded
              courts should be weighted less heavily but nevertheless
              should be considered since the ultimate responsibility for
              such circumstances must rest with the government rather than
              with the defendant. Finally, a valid reason, such as a missing
              witnesses, should serve to justify appropriate delay. Wehr v.
              State, 841 P.2d 104, 112–113 (Wyo.1992), quoting Barker.

Berry, ¶ 36, 93 P.3d at 232.

[¶17] The State filed its initial charges against Mr. Durkee on July 9, 2012. The circuit
court scheduled his preliminary hearing for July 17, 2012, but he requested a continuance
before eventually deciding to waive his preliminary hearing on August 7, 2012. Mr.
Durkee is responsible for the twenty-one day delay between the original preliminary
hearing date and his waiver of the preliminary hearing. The district court arraigned Mr.
Durkee on August 24, 2012, and set his trial to begin November 13, 2012. At the
October 19, 2012, scheduling conference, the district court granted defense counsel’s
request that the trial be continued so he could retain an expert in accident reconstruction,
and rescheduled the trial to begin December 10, 2012. Mr. Durkee is responsible for the
twenty-seven day delay between the original trial date and the rescheduled date.

[¶18] On November 30, 2012, defense counsel notified the district court Mr. Durkee was
missing. He had cut off his monitoring device and returned it with a note saying he was
disappearing. The district court vacated the December trial setting. Mr. Durkee was
eventually located in Washington and returned to Wyoming on January 23, 2013. The
forty-four day delay between the December 10, 2012, trial setting and when he was
returned to Cheyenne is assigned to Mr. Durkee.



                                             5
[¶19] For unknown reasons, neither Mr. Durkee nor the State requested a trial setting
after his return to the jurisdiction, and the district court did not set a new trial date. The
court did, however, commence bond revocation proceedings. Mr. Durkee was arraigned
for bond revocation on February 8, 2013, and a forfeiture hearing was set for March 1,
2013. The district court continued the bond forfeiture hearing two times, once to
accommodate a deposition in a civil case pertaining to the collision and again on the
request of defense counsel because of a conflict in his schedule. The district court heard
the matter on April 5, 2013, and ordered a portion of Mr. Durkee’s cash bond forfeited.
Also during this time, Mr. Durkee was sentenced to ninety days in jail for a separate
controlled substance conviction.

[¶20] Only later, did the parties consider the speedy trial clock. The State and Mr.
Durkee agreed the 180 day deadline under Rule 48 expired in late April 2013, and on
June 5, 2013, Mr. Durkee filed a motion to dismiss for violation of his right to a speedy
trial under Rule 48. The district court dismissed the first case without prejudice on June
25, 2013.

[¶21] It is difficult to assign responsibility for the 133 days between Mr. Durkee’s return
to Wyoming and his filing of the motion to dismiss. On one hand, the State always has a
responsibility to bring a defendant to trial, Berry, ¶ 31, 93 P.3d at 231, and we know of
no reason a trial on the original charges could not have been scheduled while other
proceedings were pending. On the other hand, defense counsel’s schedule and additional
proceedings involving Mr. Durkee also contributed to the delay. See generally W.R.Cr.P.
48(b)(3)(B) (proceedings on other charges against the defendant are not counted in
computing the time for trial under the rules of criminal procedure). Under these
circumstances, we conclude the 133 day delay must be attributed equally to the State and
the defense.

[¶22] The State re-filed identical charges against Mr. Durkee the same day as the
dismissal, June 25, 2013. The district court scheduled an arraignment in the second case
for July 19, 2013, but vacated the setting after Mr. Durkee moved to recuse the judge.
The district judge referred the recusal motion to another judge but its resolution was
delayed because Mr. Durkee initially failed to include the affidavit demonstrating judicial
bias or prejudice mandated by W.R.Cr.P. 21.1(b). The alternate judge denied the motion
to recuse after a hearing on August 13, 2013. The original district judge arraigned Mr.
Durkee on August 30, 2013. Mr. Durkee was responsible for the forty-two day delay
resulting from his motion to recuse. See Ortiz, ¶ 42, 326 P.3d at 893 (defense pretrial
motions are counted against the defendant).

[¶23] The district court scheduled the trial for November 12, 2013. Mr. Durkee filed a
demand for a speedy trial on September 4, 2013, and two weeks later he moved to
dismiss the case for violation of his constitutional right to a speedy trial. On October 28,
2013, Mr. Durkee filed a second motion to dismiss on the grounds of “extreme prejudice”
because his blood sample had been destroyed and he could not, therefore, have it tested
                                              6
by his experts. After the district court denied his motions to dismiss, Mr. Durkee
requested a continuance of the November 12, 2013 trial. The State objected, but the
district court rescheduled the trial to begin April 7, 2014. This last delay amounted to
146 days (or almost five months).

[¶24] Although a defendant is generally responsible for delays associated with
continuances he requests, Ortiz, ¶ 42, 326 P.3d at 893, the five month delay gives us
pause. Mr. Durkee maintains that not all of the delay was his fault. He asserts a crowded
docket was part of the reason for delay, pointing to the district court’s statement about the
difficulty of scheduling the trial because of its length. As we stated above, responsibility
for delays caused by an overcrowded court docket must rest with the government rather
than with the defendant, although it is not weighted heavily. Berry, ¶ 36, 93 P.3d at 232;
Rhodes, ¶ 19, 348 P.3d at 411. The record in this case does not, however, demonstrate
that the district court’s crowded docket was the cause of the lengthy delay between trial
settings. In fact, the district judge clearly wanted to prioritize Mr. Durkee’s trial and
mentioned the option of moving a civil trial in order to accommodate it.

[¶25] Instead, it appears Mr. Durkee needed time for trial preparation and pre-trial
matters. He filed several motions prior to the April 2014 trial, including a motion for an
order directing the public defender to pay the costs of his expert witnesses, which
required a response from the public defender; a motion in limine to exclude the blood
draw evidence and any evidence that he was under the influence of methamphetamine;
and a motion for additional funding from the public defender for expert witness fees.

[¶26] Under our case law, the defendant is generally charged with delay resulting from
defense motions. See Ortiz, supra. Nevertheless, Mr. Durkee attempts to place
responsibility for the delays associated with his expert witnesses on the State. He claims
the State’s belated notice of its expert accident reconstructionist forced him to find
another expert and, since he did not have sufficient funds to pay the expert, he had to go
to the public defender’s office to obtain funding. In advancing this argument, Mr.
Durkee does not claim the State’s expert witness notice was late under the court rules or
scheduling orders, nor did he move to have the State’s expert witnesses excluded from
the trial because of a late designation.

[¶27] Arguing for the continuance of the trial at the November 1, 2013 hearing, defense
counsel stated:

                     [Defense Counsel]: And, Your Honor, I do move to
              continue at this time, and mainly based on the issue of
              whether or not the State will provide funds for my client to
              hire these experts. These experts have been contacted
              previously. It has just come to my attention that he had run
              out of funds, or his family had run out of funds, so that’s why
              we filed that motion. The Public Defender’s Office was
                                             7
             served and notified, and . . . I’ve contacted them, and asked
             them if they would be here, but they’re not. . . . So that is,
             obviously, an outstanding issue.

                     I’d just put on the record that there [are] now two
             accident reconstruction reports. Initially, there was one. I
             believe the responding officer at the scene. And then, just
             recently, as of, I believe, this week on Wednesday, I think is
             the day that I received the State’s expert opinion on accident
             reconstruction. It’s a total different analysis, and that was
             received Wednesday. So I just want the record to be clear
             that I did not receive any information that the State was going
             outside of what they had already provided [for] hiring a new
             accident reconstructionist.

                    THE COURT:             They were supplying notices sort
             of because of my pre-trial order and deadlines, and a new
             expert, or accident reconstruction specialist was noticed at
             about that time, just this last week or so?

                     [Defense Counsel]: Yes. This last week. . . .
             Concerning the toxicologist they intend to provide, or call,
             Ms. Stockham, I’ve never received a report from this person. .
             . . I’ve only been notified, I think, in the last day or two, that
             – I received a pre-trial memo that this person may be a
             witness, but no report, so I still have no idea what this person
             is going to say.

                    So based on that, I do believe that Mr. Durkee does
             need to respond with experts to these situations, and he needs
             funds to do so. . . .

[¶28] The State responded as follows:

                   [Prosecutor]: We would oppose taking [the trial] off
             the November 12th docket, Your Honor.

                    Whether or not we noticed the Defendant this week,
             which again, was in a timely manner, of an additional
             accident reconstructionist, an additional or alternate
             toxicologist, in the very first case, Your Honor, the prior
             docket, again, we have an accident reconstruction. [Defense
             counsel] was supplied with all that information regarding . . .
             Officer Trammell’s reconstruction early on, I’m sure even

                                             8
                  before he got our discovery in September, September 11th of
                  this year in the second docket.

                          Additionally, he was notified about . . . I guess the
                  toxicology report at the same time from the prior case, and
                  then again in discovery September 11th, and the fact that we
                  were going to have a toxicologist. [Mr. Durkee] was
                  objecting to the lab results. He was objecting to [the
                  supervisor of the Colorado lab] weeks ago. So to come in
                  here now and say I didn’t know there was a need for a
                  reconstruction expert, or a toxicologist expert for my case
                  until just this week, I just feel is not appropriate, Your Honor,
                  and any request in that regard, I guess, should just be met
                  with a denial. I think we should have the trial on the
                  scheduled date.

[¶29] This exchange puts Mr. Durkee’s request for a continuance into context. He
apparently was not prepared to go to trial on November 12, 2013. Perhaps he was
counting on his motions to dismiss being granted. In any event, Mr. Durkee was
certainly aware that the nature of the accident and his use of methamphetamine were
going to be important issues at trial. In fact, he requested a continuance of the trial in the
first case so he could look into retaining an accident reconstruction expert. Under these
circumstances, we will not relieve the defendant of responsibility for the delay associated
with the continuance on the grounds that the State did not give him adequate notice of its
expert witnesses.

[¶30] Mr. Durkee also asserts the delay associated with obtaining funding for his experts
from the public defender’s office should be counted against the State. He cites Justice
Sotomayor’s opinion in Boyer v. Louisiana, 133 S. Ct. 1702, 185 L. Ed. 2d 774 (2013)
(per curiam), opposing the United States Supreme Court’s dismissal of a writ of certoriari
as improvidently granted. The issue in that case was “[w]hether a state’s failure to fund
counsel for an indigent defendant for five years, particularly where failure was the direct
result of the prosecution’s choice to seek the death penalty, should be weighed against the
state for speedy trial purposes.” Id. at 1702.

[¶31] The majority in Boyer ruled the writ was improvidently granted, and Justice Alito
noted in his concurring opinion that, although the defendant had waited more than seven
years in Louisiana to be tried on second degree murder and armed robbery charges, “the
single largest share of the delay in this case was the direct result of defense requests for
continuances, that other defense motions caused substantial additional delay, and that
much of the rest of the delay was caused by events beyond anyone’s control.”3 Id. at
1703 (footnote added). Justice Sotomayor insisted delay caused by a state’s failure to

3
    Some of the delay occurred because Hurricane Rita forced closure of the courthouse.
                                                     9
adequately fund an indigent’s defense should be weighed against the state and asserted
the Court should have addressed that narrow issue instead of dismissing the writ. Id. at
1704.

[¶32] Setting aside the question of whether an opinion dissenting to a dismissal of a writ
of certoriari has any precedential value, we conclude Justice Sotomayor’s opinion is not
relevant to our analysis in the case at bar. The State did not cause any significant delay in
this case by withholding funds for Mr. Durkee’s expert witnesses. He did not file his
request for expert witness funding until October 28, 2013, and defense counsel
represented to the district court at the November 1, 2013, hearing that he had been in
contact with the experts. The public defender stipulated to providing funding, and the
district court entered an order granting the request on November 8, 2013. Mr. Durkee
filed a motion for additional funding on April 8, 2014, and the motion was granted the
very next day. By that time, trial had already commenced. Under these circumstances
where the defense requested the continuance of the trial date over the State’s objection,
filed several pre-trial motions and obviously had a significant amount of preparation to
do after the vacated November 12, 2013 trial date, we conclude Mr. Durkee was
responsible for the 146 day delay.

[¶33] In total, Mr. Durkee was directly responsible for 280 days of the 637 day delay.
Additionally, the 133 day delay preceding his motion to dismiss the first case is partially
attributable to him. The delays wholly and partially attributable to Mr. Durkee amount to
413 of the 637 day total. With regard to the delays caused by the State, there is no
indication the prosecution acted with ill will or with intent to hinder the defense. See
Ortiz & Berry, supra. Under these circumstances, we conclude both the State and the
defense should bear responsibility for the delay. The second Barker factor is neutral.

       3. Defendant’s Assertion of Right to Speedy Trial

[¶34] The third factor in a constitutional speedy trial analysis is the defendant’s assertion
of his right to a speedy trial. Although a defendant is not required to assert his right to a
speedy trial, his assertion or failure to assert is a factor for consideration in evaluating a
speedy trial claim. Berry, ¶ 45, 93 P.3d at 236, citing Harvey, 774 P.2d at 95. We also
consider the vigor with which the defendant claimed his right to a speedy trial in
determining the reasonableness of any delay. Wehr, 841 P.2d at 113.

[¶35] Mr. Durkee did not file a written demand for a speedy trial in the first case, and he
made no effort to secure a trial setting during the months following his return from
Washington. In fact, he did not assert his right to a speedy trial until he moved to dismiss
the first case pursuant to Rule 48 on June 5, 2013. That was nearly eleven months after
the initial charges were filed against him.




                                             10
[¶36] The State filed the charges in the second action in June 2013, and Mr. Durkee
presented a demand for speedy trial in September 2013. Soon after, he also filed a
motion to dismiss for violation of his right to a speedy trial. Contrary to these overt
attempts to obtain a prompt trial date, he requested a continuance and acquiesced in the
district court’s decision to postpone the trial by an additional five months after his
motions to dismiss were denied. In fact, the record indicates he needed that time for
various pre-trial motions and to secure expert witness testimony. Under these
circumstances, we cannot conclude Mr. Durkee vigorously asserted his speedy trial right.
This factor weighs in favor of the State.

       4. Prejudice to Defendant

[¶37] The final factor in the Barker analysis measures the prejudice suffered by a
criminal defendant from the delay in bringing him to trial. “Although an affirmative
demonstration of prejudice is not a prerequisite to establishing a constitutional violation
of the right to speedy trial, the question whether the defendant was prejudiced should be
considered.” Berry, ¶ 46, 93 P.3d at 236-27, citing Harvey, 774 P.2d at 96 and Moore v.
Arizona, 414 U.S. 25, 26, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973). Prejudice to a
defendant as a result of pretrial delay may consist of: “1) lengthy pretrial incarceration; 2)
pretrial anxiety; and, 3) impairment of the defense.” Berry, ¶ 46, 93 P.3d at 237, quoting
Harvey, 774 P.2d at 96. The impairment of defense factor is the most serious because it
impacts the defendant’s ability to prepare his case and skews the fairness of the entire
system. Ortiz, ¶ 62, 326 P.3d at 896; Rhodes, ¶ 20, 348 P.3d at 411.

[¶38] Mr. Durkee quotes Caton v. State, 709 P.2d 1260 (Wyo. 1985) and Berry, supra,
about the prejudicial effects of pretrial anxiety and lengthy incarceration; however, he
does not explain how pretrial anxiety and incarceration actually affected him. His bare
assertions are insufficient to warrant our consideration of those factors. Ortiz, ¶¶ 60-61,
326 P.3d at 896. We note that other factors may have contributed to any anxiety and
incarceration Mr. Durkee may have experienced, including his sentence for a different
controlled substance violation and his abscondence from bond.

[¶39] Mr. Durkee focuses his argument on the most important prejudice factor, the
impairment of his defense as a result of the delay in bringing him to trial. See Ortiz, ¶ 62,
326 P.3d at 896. He claims he was prejudiced because his blood sample was destroyed
prior to trial and he was unable to have it independently tested. To evaluate this factor,
we will provide a synopsis of the facts and course of proceedings pertaining to the blood
sample.

[¶40] Ms. Gookin died shortly after the collision on February 21, 2012, and Mr. Durkee
provided a blood sample at law enforcement’s request. The sample was initially sent to
the State of Wyoming’s Department of Health where it tested presumptively positive for
amphetamine. On March 27, 2012, Mr. Durkee’s blood sample was sent to the Colorado

                                             11
Department of Public Health and Environmental Laboratory Services Division to be
analyzed specifically for methamphetamine. Two tests were conducted at that facility.
One was an initial screening which was positive for methamphetamine and the other was
a confirmatory test that measured the level of methamphetamine in Mr. Durkee’s blood.
The report generated by the Colorado laboratory stated the blood sample would be stored
for one year, after which it would be destroyed unless other arrangements were made.

[¶41] Mr. Durkee received the Wyoming and Colorado lab reports from the State on
October 30, 2012. The State’s certificate of discovery specifically informed Mr. Durkee:

              Notice of any physical evidence collected in the case is
              included in the discovery reports provided to defense. . . . If
              defense counsel wishes to examine any items of physical
              evidence at any time prior to trial, such arrangements must be
              made with the custodian of the evidence as noted in the
              reports.

The Colorado lab destroyed the blood sample on March 27, 2013, in accordance with its
policy of storing samples for one year unless other arrangements were made. There is no
indication in the record that Mr. Durkee made any effort, prior to the sample’s
destruction, to have it tested or notified the Colorado lab (or anyone else) that it should be
preserved.

[¶42] In the fall of 2013, Mr. Durkee filed a motion to dismiss for violation of his right
to a speedy trial and a motion to dismiss for “extreme prejudice.” He claimed
independent testing of the blood sample was crucial to his defense because the Colorado
laboratory that performed the positive methamphetamine tests had closed after being
criticized for failing to follow proper procedures and its director having a bias in favor of
prosecutors. After hearing the parties’ arguments at a hearing held November 1, 2013,
the district court denied both motions.

[¶43] Shortly after the district court denied Mr. Durkee’s motions to dismiss, he filed a
motion in limine to exclude all evidence relating to the blood draw or showing that Mr.
Durkee was under the influence of methamphetamine at the time of the collision. As
with the earlier motions to dismiss, Mr. Durkee’s argument that the evidence should be
excluded was based largely on the unavailability of the blood sample for independent
testing and the problems with the Colorado laboratory. The district court denied the
motion in limine.

[¶44] The trial began as scheduled on April 7, 2014. The State’s evidence included Mr.
Durkee’s admissions about using methamphetamine, not sleeping the night before, and
“crashing” or “coming down” from his methamphetamine high at the time of the
collision. The presumptive positive blood test results were admitted into evidence,

                                             12
although the conclusive test which measured the amount of methamphetamine in his
blood was not.4 The State’s toxicology expert testified methamphetamine is a stimulant
which makes a person very alert and euphoric when first ingested but, when the levels in
the bloodstream drop, the user goes into a “crash” phase and becomes extremely fatigued.
The toxicologist also stated a user may still be impaired as a result of the drug while in
the crash phase.

[¶45] Under these circumstances, we cannot conclude the delay hindered Mr. Durkee’s
defense. Mr. Durkee was notified the sample was not in the State’s custody and the lab
would destroy it one year after receipt. He could have arranged for independent testing
prior to its destruction or he could have asked that the blood sample be preserved, but he
did not. Any prejudice associated with his inability to test the sample was diminished by
his admission that he used methamphetamine the night before the collision and the fact
that the State did not introduce evidence of the quantity of methamphetamine in his blood
at trial.

[¶46] We addressed somewhat similar circumstances in Strandlien v. State, 2007 WY
66, 156 P.3d 986 (Wyo. 2007). The defendant was convicted of aggravated vehicular
homicide for killing someone while driving intoxicated. Id., ¶ 4, 156 P.3d at 989. We
held the defendant was not prejudiced by the delay in bringing him to trial even though
his blood sample was destroyed prior to his arrest because he failed to establish additional
tests might yield a different result. Id., ¶¶ 17-18, 156 P.3d at 992. As we noted above,
Mr. Durkee’s prejudice argument is even less convincing because he admitted to using
methamphetamine.

[¶47] Furthermore, the jury did not convict Mr. Durkee of aggravated homicide by
vehicle based upon the DUI, but rather of aggravated homicide by vehicle based upon his
reckless conduct. The jury instruction on that charge stated, in relevant part:

                      The elements of the crime of Aggravated Homicide
               by Vehicle – Reckless, as charged in Alternative Count 1 of
               this case are:

               1.   On or about the 21st day of February, 2012;
               2.   In Laramie County, Wyoming;
               3.   The Defendant, Jason C. Durkee;
               4.   Drove a vehicle;
               5.   In a reckless manner;
4
  The prosecutors informed the district court they had been unable to serve a subpoena on the lab
technician who performed the test measuring a conclusive level of methamphetamine in Mr. Durkee’s
blood. They conceded that, without the technician’s testimony, they would be unable to establish
foundation for admission of the conclusive test result. Consequently, only the presumptive tests were
admitted into evidence.
                                                 13
                6. And his conduct is the proximate cause of [the] death of
                   Linda Gookin.

(emphasis in original).

[¶48] The district court also instructed the jury on the definitions of recklessly and
proximate cause:

                       “Recklessly” is defined as the following conduct: A
                person acts recklessly when he consciously disregards a
                substantial and unjustifiable risk that the harm he is accused
                of causing will occur, and the harm results. The risk shall be
                of such nature and degree that disregarding it constitutes a
                gross deviation from the standard of conduct that a reasonable
                person would observe in the situation.

                        The “proximate cause” of an injury is that cause which
                in natural and continuous sequence, unbroken by an
                independent and intervening cause, produces injury, and
                without which the injury would not have occurred, the injury
                being the natural and probable consequence or result of the
                wrongful act. The proximate cause must be a substantial
                factor in bringing about the injuries or death.

[¶49] The jury could have considered numerous circumstances as evidence of Mr.
Durkee’s recklessness, including: his admitted ingestion of methamphetamine; his fatigue
from having not slept the night before and “coming down” or “crashing” from the
methamphetamine high; speeding; researching an address on his cell phone while driving
rather than watching the road; and failing to stop or even brake for the red light. In light
of the abundant evidence of recklessness, any harm associated with the unavailability of
the blood sample was not significant.5 Given there is no showing that Mr. Durkee was
prejudiced by the delay, this factor weighs in favor of the State.

        5. Balancing the Factors


5
 Although Mr. Durkee’s argument seems to focus primarily on his right to a speedy trial on the homicide
charge, we note he was also convicted of driving while under the influence of methamphetamine to a
degree that rendered him incapable of safely driving. Section 31-5-233(b)(iii)(B). For that conviction,
the State did not need to prove there was a certain amount of methamphetamine in his system, but only
needed to show he was under the influence of the drug to a degree that made him incapable of safely
driving. His admission that he used methamphetamine, together with the toxicologist’s explanation of
how the drug affects a user and the other evidence of his recklessness, satisfied the requirements of the
DUI statute. The loss of the blood sample, therefore, did not prejudice his defense on the DUI charge.
                                                  14
[¶50] Mr. Durkee relies heavily on Harvey, 774 P.2d 87, in arguing that his
constitutional right to a speedy trial was violated. We ruled in Harvey that a delay of
eighteen months in bringing the defendant to trial amounted to a violation of his right to
a speedy trial. That is a shorter period of delay than Mr. Durkee experienced. However,
we also found that Mr. Harvey was not responsible for any of the delay in that case. Id.
at 95. That stands in stark contrast to the many delays caused by Mr. Durkee in this case,
including his abscondence, requests for continuances of the preliminary hearing and trial,
and his many pre-trial motions. Given these differences, we do not find Harvey to be
particularly helpful in balancing the speedy trial factors here.

[¶51] In this case, the 637 day delay is substantial; consequently, the first factor weighs
against the State and in favor of Mr. Durkee. The second factor, the reasons for the
delay, is neutral. Mr. Durkee and the State were both responsible for significant portions
of the delay. Mr. Durkee did not vigorously or consistently assert his right to a speedy
trial, so the third factor weighs in favor of the State. The fourth factor tips the scale in the
State’s favor. Mr. Durkee’s defense simply was not prejudiced by the delay. Under
Barker, the delay was not unreasonable, i.e., it did not substantially impair Mr. Durkee’s
right to a fair trial. Mr. Durkee’s constitutional right to a speedy trial was not violated.

[¶52] Affirmed.




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