               IN THE SUPREME COURT, STATE OF WYOMING

                                   2017 WY 61

                                                      APRIL TERM, A.D. 2017

                                                            May 24, 2017

DARRIN LEE STARR,

Appellant
(Defendant),

v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).
                                              S-16-0018, S-16-0200
DARRIN LEE STARR,

Appellant
(Defendant),

v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                 Appeal from the District Court of Laramie County
                     The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender, and
      Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Joshua C. Eames, Assistant Attorney General; Darrell D.
      Jackson, Faculty Director, Prosecution Assistance Program; K. T. Farrelly,
      Student Director; and Morgan K. McIlrath, Student Intern. Argument by Mr.
      McIlrath.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.




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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] A jury convicted Darrin Lee Starr of aggravated assault and battery after he hit
Sam Trujillo with his vehicle. On appeal, Mr. Starr argues that his conviction should be
reversed due to the ineffective assistance of counsel he received at trial. We affirm.

                                         ISSUE

[¶2]   Mr. Starr presents one issue for our review:

              Trial counsel was ineffective in failing to request either an
              accident or defense of others jury instruction.

                              STANDARD OF REVIEW

[¶3] “Claims of ineffective assistance of counsel involve mixed questions of law and
fact and are reviewed de novo.” Mraz v. State, 2016 WY 85, ¶ 42, 378 P.3d 280, 290-291
(Wyo. 2016) (other citations omitted).

[¶4] Based on our adoption of the two-prong test set forth in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), the defendant must
prove both that counsel’s performance was deficient, and that the defendant was
prejudiced by the deficient performance. Mraz, ¶ 43, 378 P.3d at 291, quoting Galbreath
v. State, 2015 WY 49, ¶ 4, 346 P.3d 16, 18 (Wyo. 2015). As we have cautioned, the
defendant bears a heavy burden:

                     When reviewing a claim of ineffective assistance of
              counsel, the paramount determination is whether, in light of
              all the circumstances, trial counsel’s acts or omissions were
              outside the wide range of professionally competent
              assistance. We indulge a strong presumption that counsel
              rendered adequate assistance and made all significant
              decisions in the exercise of reasonable professional judgment.
              Under the two-prong standard articulated in Strickland, to
              warrant reversal on a claim of ineffective assistance of
              counsel, an appellant must demonstrate that his counsel failed
              to render such assistance as would have been offered by a
              reasonably competent attorney and that counsel’s deficiency
              prejudiced the defense of the case. “The benchmark for
              judging any claim of ineffectiveness must be whether
              counsel’s conduct so undermined the proper functioning of
              the adversarial process that the trial cannot be relied on as
              having produced a just result.”


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Luftig v. State, 2010 WY 43, ¶ 17, 228 P.3d 857, 864 (Wyo. 2010) (quoting Dettloff v.
State, 2007 WY 29, ¶ 18, 152 P.3d 376, 382 (Wyo. 2007) (internal citations omitted)).

[¶5]   Also,

               We do not evaluate counsel’s efforts in hindsight, but attempt
               to “reconstruct the circumstances surrounding the challenged
               conduct and evaluate the professional efforts from the
               perspective of counsel at the time.” Sincock v. State, 2003
               WY 115, ¶ 35, 76 P.3d 323, 336 (Wyo.2003). In evaluating
               counsel’s performance, we determine whether his actions
               could be considered sound trial strategy. Id.

Luftig, ¶ 18, 228 P.3d at 865.

                                         FACTS

[¶6] On July 4, 2014, Darrin Starr went with his girlfriend, Sidney Montoya, to her
family’s 4th of July party in Cheyenne. The party was hosted by Sidney’s sister and her
husband, Sam and Julie Trujillo, and attended by many other family members, including
another sister, Phyllis Carrera. Well into the party, the fireworks began when Sidney
began arguing with her sister Phyllis, and eventually, Mr. Starr and Sidney were ushered
to their car by their other sister, Julie. On their way to the car, Mr. Starr shoved Julie,
whereupon Ms. Trujillo’s sons jumped into the fray and one or both of them began hitting
Mr. Starr through his open car window. Sam Trujillo, Julie’s husband, walked over
toward the argument. At this time, Mr. Starr began driving erratically around,
accidentally hitting a fence, backing up suddenly, and hitting Sidney’s cousin with the
rearview mirror. Mr. Starr sped around the parking lot and on his second or third pass,
Mr. Starr hit Sam Trujillo with his car. Mr. Starr then drove to a King Soopers parking
lot where he left his car and called his nephew to pick him up.

[¶7] On December 10, 2014, the State charged Mr. Starr with aggravated assault and
battery, bodily injury with a weapon. Before trial, both parties proposed a variety of jury
instructions on self-defense and defense of others. Trial began, and on the second day,
Mr. Starr moved for a judgment of acquittal. Mr. Starr argued that the State had not
proven the “knowingly” or “intentional” element of the charge. The district court denied
Mr. Starr’s motion.

[¶8] During his testimony at trial, Mr. Starr said he did not hit the victim “on purpose.”
His attorney reiterated that testimony in closing:




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              This is a man who is terrified. This is a man who is afraid.
              This is not a man who was driving around with awareness,
              intention, or deliberateness to hit anybody. He’s trying to get
              away. They wouldn’t let him. They kept harassing him.

After closing argument, counsel met with Judge Sharpe in an off-the-record jury
instructions conference. During that conference, defense counsel “indicated that he
would not be requesting that the court provide jury instructions for either defense of
others or self-defense … but rather his client’s position was that this was an accident.”
True to his word, defense counsel did not object to the court’s proposed jury instructions
at the formal conference. Those instructions did not include a defense of others
instruction, nor any instructions regarding accident. What the court’s proposed
instructions did include were the elements of aggravated assault and battery and a
definition of “knowingly.”

[¶9] The jury found Mr. Starr guilty of one count of aggravated assault, and the court
sentenced him to two to four years in prison. This appeal followed. Before briefing on
this appeal, Mr. Starr filed a motion for a new trial on the grounds that his trial counsel
was ineffective, as permitted by Rule 21 of the Wyoming Rules of Appellate Procedure.
The district court held a hearing and subsequently denied Mr. Starr’s motion. His appeal
to this Court followed.

                                      DISCUSSION

[¶10] Mr. Starr contends that his trial attorney was ineffective because he failed to
request either an accident instruction or a defense of others instruction. We disagree and
explain below.

Defense of Others

[¶11] Mr. Starr argues that his trial counsel should have proposed a defense of others
jury instruction. A criminal defendant is entitled to have the jury instructed on a defense
theory if a timely submission is made of an instruction that correctly states the law and is
supported by the evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo. 1992). We
recognized the common-law defense of “defense of others” decades ago in Leeper v.
State, 589 P.2d 379, 383 (Wyo. 1979):

                     One asserting the justification of defense of another
              steps into the position of the person defended. Defense of
              another takes its form and content from defense of self. The
              defender is not justified in using force unless he or she
              reasonably believes the person defended is in immediate



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              danger of unlawful bodily harm, and that the force is
              reasonable and necessary to prevent that threat.

[¶12] We can easily dispose of Starr’s claim regarding counsel’s failure to seek a
defense of others instruction. First, there was no evidence to show that any “immediate
danger of unlawful bodily harm” existed, nor was there any evidence to show that the
victim, Sam Trujillo, was hit by Mr. Starr’s vehicle to prevent any threat to Sidney
Montoya. Second, defense of others was not trial counsel’s strategy at trial. Rather, trial
counsel’s strategy at trial was that Mr. Starr’s actions were an accident. Trial counsel
argued in closing: “[t]his is not a man who was driving around with awareness, intention,
or deliberateness to hit anybody.” Even the district court in its order denying Mr. Starr’s
Motion Claiming Ineffective Assistance of Trial Counsel, recognized the “inherent
conflict or tension” between the “accident” defense chosen by counsel, and the “defense
of others” theory advance by Mr. Starr’s appellate counsel. At the hearing on that
motion, trial counsel testified that he purposefully chose the accident defense because it
was consistent with Starr’s testimony – whereas the “defense of others” instruction was
not.

[¶13] Similarly, this Court has held before that trial counsel was not ineffective in failing
to submit a lesser included instruction, when such an instruction would have been
inconsistent with his theory of defense. See Snow v. State, 2012 WY 18, ¶¶ 15-16, 270
P.3d 656, 661 (Wyo. 2012). Indeed, a defense attorney’s “tactical decision to forego an
instruction which is inconsistent with the theory of his defense does not constitute
ineffective assistance of counsel.” Bloomquist v. State, 914 P.2d 812, 822 (Wyo. 1996).

Accident Instruction

[¶14] Regarding the lack of an accident instruction, we can also dispose of Mr. Starr’s
argument here. Mr. Starr argues here that because his trial counsel’s theory of defense at
trial was “accident,” that trial counsel should have requested an instruction that discussed
“accident” as a defense. Though Mr. Starr’s appellate counsel did not include this
argument in her written Rule 21 motion, she orally argued in its support at the Rule 21
motion hearing. Under Rule 21, “[a]ny claims of ineffectiveness not made in the motion
shall not be considered by the trial court unless the trial court determines that the interests
of justice or judicial efficiency require the consideration of issues not specifically
indicated in the motion.” W.R.A.P. 21(a) (emphasis added). The district court concluded
that appellate counsel’s decision not to include this argument in her written motion was
fatal, despite having access to the entire trial record at hand, precluded it from
considering this argument for the first time at hearing. Accordingly, this Court is also
precluded from considering this argument on appeal.




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                                  CONCLUSION

[¶15] We conclude that Mr. Starr’s defense counsel was not ineffective. The district
court is affirmed.




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