Today the Wyoming Supreme Court upheld a a conviction for Converse County man who appealed his sentence, saying the prosecutor committed misconduct by commenting on his decision not to testify.

Donald A. Whitmore was earlier convicted of vehicular homicide and four misdemeanors.

Court documents show that at 6:00 a.m. on October 6, 2022, Whitmore and his coworkers Josh Voytoski and Antonio Jurado completed an overnight shift on an oil rig in Converse County.

About one hour later they drove to Douglas to buy smome groceries, then returned to the rig site for two hours before deciding to go back to town in Whitmore's wife's car.

Around 11:00 a.m. they were headed south on Walker Creek Road going over 80 miles per hour on a winding S-curve when the car struck two delineator posts and rolled down an embankment.

Voytoski was in the front passenger seat when the accident occured. He lost consciousness and woke up face down on the driver's side window. He suffered a glass shard injury to his left eye, bleeding from the top of his head, a fat lip, and a bloddy nose.

Jurado was ejected from the vehicle and suffered injuries consistent with the vehicle rolling over him. Records say his death was immediate.

Passing motorists reported the accident. When law enforcement arrived, both Voytoski and Whitmore said that Jurado had been driving at the time of the accident. Later Voytoski testified in court that he had lied, and that Whitmore had been driving the vehicle when it crashed, saying Whitmore had told him to lie and blame Jurado because "he wouldn't go down for this."

The prosecution also provided evidence of Whitmore's scalp injuries from the wreck and the presence of hair-like fibers in the cracked windshield in front of the driver's seat, and forensic evidence of Whitmore's blood in that portion of the windshield.

During the accident’s investigation, an investigator interviewing Whitmore observed signs of alcohol impairment and smelled alcohol.

Subsequent testing of blood drawn from Whitmore after the accident showed a blood alcohol concentration of 0.151—which is considered drunk and can cause blurred vision, loss of balance and coordination.

At Whitmore’s three-day jury trial, the central issue was whether the State could establish that Mr. Whitmore was driving when the vehicle crashed.

The State charged Whitmore with felony vehicular homicide, and with five misdemeanors: driving while under the influence; driving without an interlock device; interference with a peace officer; consumption, transportation, or possession of an alcoholic beverage in a motor vehicle; and failing to provide insurance.

The evidence against Whitmore was, according to the court, compelling. DNA testing showed the shattered windshield in front of the vehicle's steering wheel belonged to Whitmore, and in describing the accident to an investigator Whitmore said "I remember I was trying to overcorrect."

Given the evidence, the Wyoming Supreme Court ruled that Whitmore has failed to show a reasonable probability that the jury verdict would have been more favorable without the statements by the prosecutor.

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