Barnes: ‘It’s an evening I wish to God I could take back;’ Judge denies acquittal
By Joshua Scheer, reporter, county10.com
(Lander, Wyo.) – Ninth District Court Judge Norman E. Young denied late Thursday afternoon the defense’s motion for acquittal.
Around 11:30 a.m., William Dean Barnes’s Attorney Devon Petersen argued for the felony charge of aggravated vehicular homicide to be acquitted by the court.
Peterson said the State must argue Barnes, 53, acted recklessly, meaning he knew the way he acted on that fateful December 2011 evening could probably result in his killing someone. He’d have to have been thinking, “I’m probably going to kill somebody, but I’m going to do it anyway,” Petersen said. He argued the prosecution had not come up with evidence to support the claim. Additionally, he detailed the only two cases of convicted aggravated vehicular homicide he could find that did not include controlled substances. He said the two did not fit the same profile as Barnes’s.
Deputy County Attorney Kathy Kavanagh said the fact that Barnes’s passed a stopped school bus and apparently had not slowed or touched the brakes shows reckless behavior. “The evidence is overwhelming,” she said. Kavanagh also argued Barnes was in a hurry to get home to Lander that evening.
Following testimony from a number of individuals, the defense rested its case and the prosecution had no rebuttal witnesses. Young dismissed the jury and addressed the motion of acquittal. The state had rested its case earlier in the morning.
“I’m not inclined to grant it,” Young said, denying the motion. “There’s evidence from which the jury could find reckless conduct.”
Barnes is charged with felony aggravated vehicular homicide and four misdemeanors: homicide by vehicle, maximum speed too fast for conditions, passing a stopped school bus with flashing red lights and exercise of due care by driver. On Dec. 20, 2011, Barnes was driving on U.S. Highway 26 toward Lander when he allegedly ignored school bus warning lights, striking and killing Makayla Marie Strahle. The felony charge carries with it a punishment of up to 20 years in prison.
When the trial will resume tomorrow and when the jury will begin deliberation was not set as of recess at 4:40 p.m.
Barnes began under questioning from Peterson. He started by telling the jury a bit about himself and his history in the construction business. He told the jury that on the evening of Dec. 20, 2011, he was returning from Jackson where he had a doctor’s appointment that started hours late. Barnes said he left Jackson around 4:45 p.m. and the weather was clear, but dark until 10 to 20 miles past Dubois. It was then he said he encountered patchy fog that was dense at times.
The speed limit on Highway 26 is 65 mph, and he said he slowed down when he came upon the fog, “just to where I felt comfortable.” He guessed he averaged about 55 mph. He said he did not closely monitor his speedometer, choosing instead to drive by feeling. “I was very focused on the road,” he said.
At about the Crowheart store, he said he came upon drifting snow that blew over his vehicle. During cross examination he said it did impair his vision. From there on he said the fog was steady.
“I could see a vehicle coming toward me,” Barnes said about what happened just prior to the wreck. “I could tell it was a larger vehicle than average. It was slowing down.”
Barnes estimated between a quarter and half a mile he could see headlights of an oncoming vehicle. He thought it was a “livestock-hauling-type vehicle” and when he noticed it stopped, he thought it was waiting to turn across the highway. At that point, he said he diverted his eyes to the white fog line on the right side of his lane. He explained that about 27 years ago he had eye surgery, retinal keratotomy, that causes a starring effect when he looks at bright lights.
He later told Kavanagh that the vehicle stopped when he was about 100 to 150 yards away.
As he passed the vehicle, he saw “one tiny speck of red light” out his peripheral and then he said “Makayla jumped” in front of his vehicle. He said she was airborne when the vehicle struck her. Barnes said he had no time to react.
He said she “came out of the light of the vehicle” and was “jumping across the light” from the “shadow of the headlights.”
“You’re telling this jury, you didn’t see a five foot three person in front of lights?” Kavanagh asked. He later said she probably jumped from the center line about six feet to the right side of his vehicle when they collided.
Bus driver Fred Peterson had testified the day before that Makayla was walking normally and had almost reached the white fog line when she was hit.
His testimony of what happened next matched fairly closely with those of the Wyoming Highway Patrol troopers and others who testified before him. He stopped his vehicle, tried to call 911 with his cell phone (which he later said was in his pocket), told the bus driver he didn’t see his lights. After Makayla’s stepfather Dan Sperry exited the home he offered to help and assured him he wouldn’t leave.
The troopers had testified that at the scene Barnes said he hadn’t seen the lights. But that during a follow-up interview in January, he told them he saw the yellow lights and a flash of red. Barnes denied, while under oath, that he never said he saw the yellow lights.
“I do not know what they’re talking about,” he said. “My story’s always been the same.”
He said he had been looking for a blinker and believed he would have been able to see one. He could see the red lights after the incident when he was behind the bus.
He said he was not using his phone at the time of the wreck, nor was he in a hurry.
“It’s an evening I wish to God I could take back,” Barnes said, adding if he could trade places with Makayla to stop her family’s suffering he would. “I can only pray for their forgiveness.”
To Kavanagh, Barnes admitted to hitting Makayla and to not slowing down just before impact. He did say he had let off the gas prior when he thought the vehicle might turn.
In the morning, the State called Fremont County Chief Deputy Coroner Mark Stratmoen to the stand. He testified to the condition of Makayla’s body after the wreck. He noted a disorientation of the legs, fractured pelvis, dislocated right arm, dislocation of the spinal column from the head, abrasions and other indications of severe head trauma. Photos of the victim were shown to jury on a projector screen so Stratmoen could point out different areas of interest. Peterson objected to the publishing of the images and again to the placement of them on the screen, but Young overruled him both times. Deputy County Coroner Vernon LaJeunnesse gave brief testimony about his response.
The first witness of the morning was Trooper Brian Bragonier to be cross examined about the crash data information he retrieved. Attorney David Hooper, also part of the defense team, performed the questioning. He emphasized the reliability of the data. The data retrieved from the vehicle showed the truck was slowed by 0.45 mph at impact with Makayla. Later, during direct questioning by the defense, Bragonier calculated that Makayla was likely propelled forward between 23 and 30 mph. He said that did not mean that was how fast the vehicle was traveling.
Hooper pointed out that for certain engines the manufacturer of the crash data monitoring equipment reports a doubling of numbers in data. Bragonier said he believed Barnes’s truck didn’t qualify. Later, Barnes testified that he did have one of the engines in question. The report showed his truck was traveling at 57 mph at the time of the incident. Hooper appeared to infer that due to reporting errors, the speed could actually be half that.
Hooper also emphasized that the Fremont County Attorney’s Office hadn’t ordered a crash investigation. Bragonier said those were usually ordered when the sequence of events are in question, which he said they weren’t in this case.
Fremont County Sheriff’s Deputy Phillip Holder testified about his response to the scene, which was in an unofficial chaplain capacity and as a friend of Dan Sperry’s. He said he spoke briefly with Barnes at the scene and that he appeared to be a man who was hurting and in shock.
Fremont County School District 1 Superintendent Diana Clapp and district Transportation Supervisor Kevin Schieffer were called by the defense to talk about school bus rules and regulations. Clapp read from rules that a strobe light, which wasn’t in use that evening, is an “approved option.” She said it was her understanding that they aren’t mandatory. She also she knew of no rules or policies about kids being dropped off where they have to cross a highway or about pulling onto a shoulder. She knew of no violations by the bus driver that night.
Schieffer confirmed that the bus that evening did not have a video camera on board. He too said there was no rule about pulling onto the shoulder, because often there isn’t one and they don’t want to let out children in ditches. Schieffer said the yellow and red lights of the bus are “much brighter than the headlights,” and that they are actually a type of strobe light. He said with all the lights on and in fog, the yellow color of the bus would likely not be able to be seen, but the lettering is reflective. He inspected the bus the following morning and found nothing wrong with it.