Nov 15, 2012 - By Christina George, Staff WriterDefense attorneys representing William Dean Barnes are requesting the Lander resident be acquitted.
Devon Petersen submitted the motion to Lander 9th District Court Judge Norman E. Young late Thursday morning after prosecutors rested their case.
Petersen said the state did not prove Barnes, who is on trial for aggravated vehicular homicide, was driving recklessly Dec. 20 when he allegedly struck 11-year-old Makayla Marie Strahle as she crossed Highway 26 near Crowheart after exiting a school bus.
"I submit to the court that the state has not proven or shown any evidence that Mr. Barnes drove recklessly that evening," Petersen said.
Petersen said he would not ask for an acquittal for the misdemeanors Barnes faces, which are homicide by vehicle, maximum speed/too fast for conditions, passing a stopped school bus with flashing red lights and exercise of due care by drivers.
Petersen argued Barnes was "well under" the 65 mph speed limit, adding that Barnes was traveling at 57 mph.
He said the state did not show evidence Barnes knew it was a school bus, which is important in proving recklessness.
Petersen also said the state didn't indicate a motive or reason why Barnes would have ignored the bus.
Petersen told the court Barnes was sober, never left his lane of travel, wasn't on the phone, was not in a hurry or tired at the time of the crash.
Fremont County deputy attorney Kathy Kavanagh said Petersen's motion doesn't address that Barnes passed a stopped school bus, which she called the "heart" of the case.
"It's a screaming yellow bus," Kavanagh said, noting the bus's lights were flashing. "It doesn't get any more apparent than that."
Kavanagh said Barnes changed his statement several times about seeing the lights.
"Those red lights were on the entire time," she continued.
Kavanagh said speed wasn't the only issue, and that Barnes didn't reduce his speed when he saw the bus and that he never applied his brakes.
"He should have seen her in his headlights," she said about the victim.
Kavanagh said Barnes "consciously disregarded the risk," and although there wasn't evidence he was in a hurry, there is reasonable inference that he wanted to get home.
"A little girl laid dead in a ditch so he could get home faster," Kavanagh said.
Petersen said a witness who testified she didn't know it was a school bus until she was 60 feet away.
Young decided to reserve making a decision about acquittal until the defense rests its case. The defense was expected to begin calling witnesses Thursday afternoon, with the first being Barnes.
Petersen's motion Thursday came after the state called its last witnesses, which included an emergency medical service technician and coroners.
Jurors on Wednesday heard from several witnesses including a motorist who came across the crash shortly after Barnes allegedly struck and killed Makayla.
Crowheart rancher Kayleene LeClair spent roughly 20 minutes on the witness stand recalling details about what happened after the deadly collision.
LeClair said she left the church in Crowheart at about 6:45 p.m. to take a handful of children home after a rehearsal for an upcoming holiday program.
"It was very foggy," she said about the night. "It was real hard to see, and I wasn't going very fast because I was looking for the turnout."
LeClair said she maintained her speed at 40 to 50 mph on Highway 26 while she drove the roughly four miles that separates the church and the Sperry residence where Makayla lived.
LeClair said she remembered seeing flashing lights ahead of her, describing the distance to be that of the length of the courtroom. She later clarified it was about 60 feet. Driving closer, she said she soon realized it was a bus.
"I was sure by then that it was a bus," LeClair said, adding that she slowed down to 25 mph or lower.
She described seeing the stopped bus, another passenger car ahead of her and people running across the road. She could also see Barnes's pickup truck down the road.
LeClair said she saw Makayla's stepfather Dan Sperry come out of the house, run to the barrow ditch and kneel over something she couldn't see.
"But I knew," LeClair added.
More testimony came Wednesday from three Wyoming State Highway Patrol troopers who responded to the crash.
Troopers Dan Wyrick and Erik Shoden said in separate testimonies that the two were working the same shift that evening.
Wyrick was near Hudson and Shoden was making a traffic stop by the Wyoming Life Resource Center in Lander when dispatch notified them of the crash at 6:53 p.m.
Wyrick said it took him 37 minutes to respond, noting clear skies from Lander to Diversion Dam. He said as he got closer to the scene, the fog became "intermittent."
Shoden, who arrived moments later, said the visibility was clear and roads were dry in the Lander area. He said he encountered fog while en route, which he described as being dense in some areas where visibility was "greatly reduced."
Wyrick and Shoden testified to being able to see emergency vehicle lights flashing from the scene about a mile away. Wyrick said the fog at the scene wasn't heavy.
Wyrick remembered seeing Sperry in the barrow ditch on his knees with his hands under a blanket where the girl was laying.
"He just basically shook his head 'no,''" Wyrick said about Sperry.
Wyrick and Shoden described work conducted at the scene, including assessing the damage on Barnes's three-quarter ton GMC pickup truck, taking photographs and conducting interviews.
Wyrick said he made contact with and collected the appropriate documents from Barnes, who was sitting behind the wheel of his truck.
Wyrick said Barnes told him he had encountered fog, did not see the bus lights and believed the vehicle was making a turn.
Wyrick testified Barnes said his visibility was one delineator post, or 200 feet. Wyrick noted the space between delineator posts is about 300 feet.
Wyrick said Barnes believed he was traveling between 40 and 45 mph when he struck the girl.
Jurors were shown several photographs taken at the scene, including those of Barnes's truck.
Wyrick said the damage on the back driver side of the vehicle and front driver corner was from an unrelated crash. He pointed out damage to the front passenger corner fender and headlight happened when Barnes struck the girl.
Wyrick said he conducted field sobriety testing on Barnes to check for alcohol or drug use. Wyrick said Barnes passed every test. There wasn't blood drawn, Wyrick explained, because there wasn't probable cause or reasonable suspicion Barnes was under the influence.
In earlier testimony, the jury learned Barnes was returning home from a doctor's appointment in Jackson because of a recent knee surgery. Wyrick said Barnes was only taking Advil for his pain.
Wyrick said there wasn't evidence indicating Barnes was swerving, in a rush to get home or falling asleep at the wheel.
"He was pretty solemn, soft spoken," Wyrick said about Barnes's demeanor.
Wyrick and Shoden both testified phone records showed no text messages or phone calls were completed from Barnes's cell phone at the time of the crash.
Trooper Brian Bragonier also responded to the crash.
Bragonier testified he used a GPS system to diagram the scene, including articles of clothing, the child's body, point of impact, Barnes's truck and the Sperry house.
The diagram showed the girl's body was thrown 128 feet forward after being struck and Barnes's truck stopped 315 feet after impact.
Wyrick and Shoden said Barnes agreed for Bragonier to download data from the truck's airbag control module, which records information about events where airbags were deployed or nearly deployed.
The airbags were not deployed in this case.
Bragonier testified he is trained to retrieve such records and analyze the results, adding he is one of five troopers statewide who hold such training.
"It's extremely reliable," Bragonier said about the system's accuracy.
Bragonier testified Barnes maintained a speed of 57 mph up to five seconds before impact and that he didn't apply his brakes for at least eight seconds before impact.
Troopers testified they didn't arrest Barnes that night and allowed him to go home.
Wyrick and Shoden said they met with Barnes on Jan. 4 for a follow-up interview.
Wyrick said Barnes again said he didn't see the bus lights. They said Barnes later stated he did not see the yellow lights flashing but remembered a quick red flash as he passed the bus.
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