644 P.2d 172 (Wyo. 1982), 5553, Daniel v. State

Docket Nº:5553.
Citation:644 P.2d 172
Party Name:Alvah R. DANIEL, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Case Date:April 28, 1982
Court:Supreme Court of Wyoming

Page 172

644 P.2d 172 (Wyo. 1982)

Alvah R. DANIEL, Jr., Appellant (Defendant),


The STATE of Wyoming, Appellee (Plaintiff).

No. 5553.

Supreme Court of Wyoming.

April 28, 1982

Page 173

Richard D. Honaker, Cheyenne, and W. Keith Goody, Asst. Public Defender, Jackson, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr., Asst. Atty. Gen., Michael L. Hubbard, Asst. Atty. Gen., Cheyenne, Jere Ryckman, County Atty., and Robert J. Reese, Deputy County Atty., Green River, for appellee.


BROWN, Justice.

A jury found appellant guilty of involuntary manslaughter. 1 The district judge sentenced appellant to a term in the penitentiary of not less than 19 years and not more than 20 years.

The issues urged on appeal are:

"1. Under the facts of this case, did police officers violate the Appellant's federal and state constitutional rights to counsel, against self-incrimination, and to due process of law by obtaining statements from him after he made several inquiries about his right to counsel and the police ignored those inquiries?

  1. Under the facts of this case, did the trial court abuse its discretion by sentencing Appellant to 19-20 years for the offense of involuntary manslaughter, and does such a severe sentence, under the facts of this case violate federal and state

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bans on cruel and unusual punishment and Art. 1, § 15 of the Wyoming Constitution?"

We will affirm.

Helen Bunning, an instructor at Western Wyoming College, died from a stab wound received at the college during the early afternoon of September 17, 1980. On September 19, 1980, appellant presented himself at the office of the Rock Springs Chief of Police, Russell G. Hawk. Appellant told Chief Hawk's secretary the purpose of his visit to the police department, and the secretary then told the Chief that there was an individual who said he was an eyewitness to the stabbing at the college. Chief Hawk agreed to talk to the individual, and asked the secretary to have some investigators come into the office. The appellant then went into the Chief's office with his wife and children and said that he was responsible for the accident at the college. The Chief asked the appellant if he was talking about the lady who was stabbed, and appellant responded by saying that he was totally responsible for the accident.

Before any questioning by police, appellant had already confessed to killing Helen Bunning accidentally, the crime of which he was convicted. The Chief then advised appellant of his Miranda rights and asked for a recorder. There was no further conversation until Officers Ellis and Grymes came into the Chief's office with the recorder. Conversations, questions and answers thereafter were recorded. The Chief asked appellant some preliminary questions, such as correct name and complete address, then reviewed with appellant and the other officers what appellant had previously told him. Appellant did not disagree with the Chief's narration, but emphasized that the stabbing was an accident.

Near the beginning of the interview Chief Hawk told appellant that based on what he had initially said, appellant would be taken into custody and charged with homicide. The Chief said that appellant would be arrested whether or not he made a statement. Early in the interview appellant said he would "probably like to have an attorney present." Appellant never said unequivocally that he wanted an attorney present. There was considerable discussion about appellant's right to an attorney. Appellant said, "If it's necessary, that's because I just don't want to be taken advantage of or anything like that." Chief Hawk told appellant that he would not talk to him further unless he was willing to waive his rights. The appellant said: "Well, I'd just as soon get it taken care of. I waive the right to-" (Chief Hawk interrupted appellant in mid-sentence). At this juncture a waiver form was provided. Chief Hawk prefaced the reading of the waiver saying, "And I'd rather not have the information if it means violating your rights." Appellant was furnished a copy of the waiver form and Officer Grymes proceeded to read the waiver as follows:

"POLICE OFFICER: Okay, sir. These are your rights guaranteed under the Constitution. Before we ask you any questions, you have to understand your rights, okay?

"MR. DANIEL: Okay.

"POLICE OFFICER: You have the right to remain silent. Understand that?

"MR. DANIEL: Yes, sir.

"CHIEF HAWK: And, it's 2:22 in the afternoon on September 19, 1980.

"POLICE OFFICER: Okay. Let's see. I'll go over that again. You have the right to remain silent. Anything you say can be used against you in Court. Do you understand, that, sir?

"MR. DANIEL: Yes, sir.

"POLICE OFFICER: You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. Do you understand that, sir?

"MR. DANIEL: Yes, sir.

"POLICE OFFICER: If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand that, sir?

"MR. DANIEL: Yes, sir.

"POLICE OFFICER: If you decide to answer questions now, without a lawyer present, you will still have your right to

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stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer. Do you understand that, sir?

"MR. DANIEL: Yes, sir.

"CHIEF HAWK: Now, you have answered 'Yes, sir,' to all of these questions. Okay, would you ask-

"POLICE OFFICER: Okay, what I would like to do now is ask for a waiver.

"CHIEF HAWK: In other words, the waiver being that you have read this statement. So, would you read it again now that you have answered all the questions with Mr. Grymes reading it?

"POLICE OFFICER: If you would just read that waiver and if you have any questions about it.

"MR. DANIEL: May I still-if I can't afford a lawyer-may I still be appointed a lawyer?

"CHIEF HAWK: Well, we wouldn't talk to you at the point that you want to have an attorney. We would discuss it with you now. You do have the right to have representation now, not only at this time, but later on in the thing. That's just if you want an attorney, we're not going to talk to you right now. We are just going to put you in the bucket and shut things down.

"MR. DANIEL: Okay.

"CHIEF HAWK: And, that's whether you make a statement or not.

"POLICE OFFICER: Okay, that-you don't, by signing this waiver, you don't waive your rights.

"MR. DANIEL: I just waive the right.

"POLICE OFFICER: While we are talking now, if you agree to it, okay? But, if at any point, you want to get an attorney; if you want to stop talking-whatever you want-you are the man who makes the decisions, not us. That's what it comes down to.

"MR. DANIEL: Well, I'd like to talk. I'd like to explain my side of the story right now.


"POLICE OFFICER: Okay, if you would-

"CHIEF HAWK: I've got this one filled out a little bit for you, and while I am filling this one out, would you read me that waiver of rights down here?

"MR. DANIEL: I have read this statement of rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me or coercion (mispronounced)-

"CHIEF HAWK: Coercion.

"MR. DANIEL: -coercion has been used against me.

"CHIEF HAWK: That's like a threat or something along that line. Okay, with that in mind, would you sign your full name right here?

"Okay, without any interruptions or anything else from us, would you go back and start with about the time and date that this incident started, and go right on through, and we will not even ask you any questions until you get finished. Then, we will ask you what questions we've got concerning it."

There is no question that appellant's initial confession that he was totally responsible for the stabbing death of Helen Bunning was admissible. Appellant was not in custody. Before his volunteered statement, the only thing Chief Hawk knew was that Alvah Daniel claimed to be an eyewitness to the incident. He did not know that Mr. Daniel had killed Mrs. Bunning, and any suggestion that Chief Hawk tricked the appellant into confessing is not supported by the record. Furthermore, Chief Hawk had no obligation to stop the confession and advise the appellant of his constitutional rights. Out of an abundance of caution, Chief Hawk took it upon himself to terminate the first volunteered confession of the appellant, thereby choosing to protect the appellant from further incrimination. Under any view of the facts here, the initial confession of the appellant was admissible. Lung v. State, Okla., 420 P.2d 158 (1966).

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After appellant made his initial confession, the police conducted no express questioning regarding the incident until after appellant had been advised of his rights twice and until after he had read and signed a waiver form. Appellant, however, had been taken into custody, and although he had not been formally placed under arrest, he was told he would be arrested for homicide. He therefore knew that he was not free to leave the police station.


The genesis of the large body of law developed in the last fifteen years with regard to custodial interrogation is Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), cert. denied 396 U.S. 868, 90 S.Ct. 140, 24 L.Ed.2d 122 (1969). Miranda set forth proscriptions and limitations mandated by the Fifth and Sixth Amendments to the United States Constitution regarding custodial interrogation. The Supreme Court in Miranda held that the Constitution mandates that, "no person * * * shall be compelled in any criminal case to be a witness against himself," and that "the accused * * * have the assistance of counsel." The Supreme...

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