Lopez v. State

• Decision Date: 16 January 1976
• Docket Number: Nos. 4375,4395,s. 4375
• Citation: 544 P.2d 855
• Parties: John Kenneth LOPEZ, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). David L. POMROY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 855

544 P.2d 855

John Kenneth LOPEZ, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

David L. POMROY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

Nos. 4375, 4395.

Supreme Court of Wyoming.

Jan. 16, 1976.

John E. Ackerman, Ronald L. Brown, and Phil N. Nash, Casper, for appellants.

David B. Kennedy, Atty. Gen., Cheyenne, Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, and David G. Lewis, Deputy County and Pros. Atty., Casper, for appellee.

Before McCLINTOCK, RAPER and THOMAS, JJ.

THOMAS, Justice.

The appellants-defendants were found guilty by a jury, convicted of and sentenced for the crime of rape, that is, having carnal knowledge of a woman, forcibly and against her will, in violation of § 6-63(A), W.S.1957, 1975 Cum.Supp. ¹

The individual informations which were filed against the defendants were consolidated for trial, and the cases have been consolidated for purposes of this appeal. Two questions are presented by the appellants, which are:

1. Whether they were tried by an impartial jury. This question is premised upon information to the effect that a female member of the jury had herself been a victim of rape some six years before the trial. This information was developed after the trial had been concluded and the jury verdict returned, and it was made the basis for a motion for a new trial by both defendants.

2. Whether the trial court erred in failing to give to the jury a cautionary instruction, tendered by the defendants, relating to the testimony of the victim.

In considering these two questions background information as disclosed by the evidence submitted at trial is helpful. This factual statement is a product of an examination of the evidence in accordance with the standard which must be applied by this Court in reviewing evidence:

'* * * (I)n a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.' ²

The case presented by the State of Wyoming consisted primarily of the testimony of the victim, which was corroborated in many material respects.

The victim was 16 years old at the time of the events leading to this prosecution. One evening at about 9:45 p.m. she finished her duties at the concession counter of a movie theater in Casper, Wyoming. She left the theater, got into her car, and proceeded to drive to her home. After driving about a block, she stopped for a red light at an intersection, and she then noticed the defendants, both of whom were strangers to her, standing by her car. Without her permission, both of them got into the car with Lopez sitting next to her and Pomroy seated by the door. During the course of the events that followed Pomroy engaged in very little dialogue with the victim. Lopez advised her that she would not be harmed if she furnished transportation to where they wanted to go. The victim was frightened and confused about what to do. Lopez furnished her with instructions as to where to drive, and his directions resulted in a rambling journey around the City of Casper. Once during the course of this journey at a point near a local high school, she told the defendants to get out of her car and that she wasn't taking them any further. Lopez then started choking her, saying, 'Look, bitch, just drive.' She then drove on, and, as before, Lopez directed her where to go, while at the same time keeping his hands on her neck. While they were driving, Lopez hit the victim an undetermined number of times, accusing her of trying to look at him.

Finally, Lopez directed her to drive to a secluded area near an afterhours club, close to the North Platte River. He told her then that they intended to rape her. She pleaded with them not to do this, but Lopez told her to shut up, and threatened to kill her. He then shoved her over the back of the front seat into the back seat, forcibly disrobing her and in the process ripping off her blouse, bra and pants. Lopez then had sexual intercourse with her after which he urinated all over her. Pomroy then got into the back seat of the vehicle and had intercourse with the victim.

At about this time Lopez unsuccessfully attempted to drive the car. He was unable to get the car into gear, so he ordered the victim to get up in front and drive. The victim was clad only in a sweater at this time, and upon Lopez' direction, she drove to a nearby gas station because she had informed the defendants that she was low on gas. At the gas station a coat was thrown over her naked lap and legs. While there she observed a man that she knew because she had been employed by the man and his wife as a baby sitter, and she called him over to the car to talk to him. She tried, by moving her lips so that the defendants would not notice, to give him a message to call the police, but this effort was unsuccessful. During this time Lopez kept pressure on her right shoulder with his hand.

After they left the gas station, Lopez directed her to drive to the city dog pound, and during that drive, he warned her that if she 'went to the cops or told anybody' that he would kill her. At the site near the dog pound Lopez again made her get into the back seat of the car where he first, and Pomroy second, again had sexual intercourse with her. After she had warned them that since the hour was late her family would have called the police to look for her, the defendants permitted her to get dressed, and then directed her to drive to an alley where she let them out of the car. Before leaving her, Pomroy demanded to see her driver's license; Lopez then threatened her by advising that he had plenty of friends and that if she did anything about this and did not meet them at a designated place the next day, he would blow her in half with a double-barrel shotgun. During this entire ordeal, the defendants concealed their names, and the victim did not learn the identity of either of them until she was shown a police photo of Lopez. Later Pomroy was connected, by name, as the other of her assailants.

Promptly after her release by the defendants the victim located her sister; called the Casper Police Department on the telephone; went to the police department to report the rape; and was sent from there to the hospital for examination. The account of the events given by the victim to the people she saw immediately after the crime was consistent in every respect with her testimony at the trial. At the trial her sister testified that when the victim came to her she was crying and screaming that two 'guys' had raped her; her clothing was disheveled and torn; and she had no shoes on. Another friend testified that the victim was 'kind of hysterical' and was crying; that her hair was all messed up; and she was barefooted. A police officer described her as very upset at the time she came to the police station. The police detective who conducted the investigation took the victim's descriptions of her attackers, and drove her to the scenes of the rapes. At the site of the first rape he found one shoe which she had lost in the struggle. The physician who examined her shortly after the rapes, by his testimony, established the presence of motile spermatozoa in her vaginal fluid. He also testified that he had observed bruises across the base of her neck and an abrasion over the left cheekbone. Her torn garments were received in evidence.

Both of the defendants testified at the trial, and they admitted the fact of intercourse, but both claim she had given her consent and willingly participated in and enjoyed the experience. As supporting their version of these events the defendants also relied upon the victim's admission to a previous sexual experience which did not involve either of the defendants.

On the day following the trial, which culminated in the return of separate verdicts by the jury finding both Pomroy and Lopez guilty, one of the female jurors telephoned another of the female jurors and advised her that some six years previously she herself had been the victim of a rape by two men under similar circumstances. This telephone conversation had been arranged after the jury's verdict was reached when the first juror asked the second for her phone number, telling her that she would call her the next day and tell her something that would make her feel more comfortable about the result of the jury's deliberations. The information furnished by the first juror was reported to counsel for the defendants by the second juror and counsel then obtained an affidavit from her. This affidavit was attached to the motions for a new trial on behalf of the defendants. The county attorney then obtained an affidavit from the juror who had been the victim of the prior rape. The hearing on the motion for a new trial was conducted upon the factual information contained in those affidavits, ³ no other evidence being taken.

With respect to their contention that they were denied the right to trial by an impartial jury, the thrust of the defendants' position, which is not subject to development from the record because the voir dire examination of the jurors either was not reported or was not included in the transcript, is that the victim of the prior rape should have disclosed that information in response to a general question as to whether any members of the jury panel knew of any reason why they could not sit as fair and impartial jurors in the case. The record before us does not even disclose that question being asked, but apparently all counsel and the trial judge agreed that a question similar to that was asked of the jurors, and the female juror who had been the victim of the prior rape made no response to the question. We conclude from the record and the briefs that none of the jurors were asked about being the victim of any crime in general or rape in...