Bigelow v. State

Citation768 P.2d 558
Decision Date27 January 1989
Docket NumberNo. 87-249,87-249
PartiesGary BIGELOW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Director, WDAP, Daniel M. Hesse and Michael K. Cornia, Student Interns, WDAP, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired. *

URBIGKIT, Justice.

This case involves burglary and conspiracy to commit burglary convictions in violation of W.S. 6-3-301 1 and W.S. 6-1-303. 2 Gary Bigelow (appellant) and other prisoners in the Natrona County Jail hatched and executed the generally unsuccessful effort with appellant's primary defense now being that the participants only conspired to rob other establishments and not burglarize the Wonder Bar which became the final target. Therefore, the "wrong" conspiracy was charged. After the jury found appellant guilty of both burglary and conspiracy to commit burglary, he was sentenced to consecutive terms of six to eight years.

Appellant phrases the issues as whether:

[T]here was sufficient evidence of a conspiracy to allow conviction.

[T]he letters from Studer and statements made by Bonner and Studer were inadmissible hearsay.

[A]dmission of the hearsay statements was harmless error.

We affirm.

I. FACTS

Appellant was incarcerated in the Natrona County Jail from November 6, 1986 to March 8, 1987. Starting with the second week in February 1987 until appellant's release, he was confined in a large cell with several individuals, including Russell Fleetwood, George Studer, and Herb Bonner. Christopher Dvorak also shared this confinement intermittently since he was only serving weekends. It was in this period from the second week in February 1987 until March 8, 1987 that the conspiracy between these people, Everett Gunnett, Gwendi Poledna and appellant, allegedly occurred. Fleetwood and Dvorak testified as to what occurred in the jail, although neither one was charged as a co-conspirator. Studer was the alleged hub of the conspiracy and had become acquainted with Gunnett from sharing correctional time at the State Boys' School in Worland. This friendship was renewed after a few years of divergence and Studer moved in with the Gunnett family. It was through Gunnett's sister, Evelyn, that Studer knew Poledna. As well, Studer was acquainted with Bonner because they both had a common acquaintance of Howard Hamlin, who was the manager of the Wonder Bar. Bonner, the only person named in the indictment as having conspired with appellant to burglarize the Wonder Bar, boasted of his employment as bartender of the Wonder Bar, where he had been working for a few years; however, he had been terminated prior to his incarceration. His "bragging" after recollecting after hour activities such as roof parties, progressed to explaining his knowledge of the building layout, security system, and even the safe combination.

As the activities proceeded, it became known around the jail that Bonner and appellant did not get along. Studer, the scribe among the parties, wrote two letters which played a part in the plot. The first letter postmarked February 20, 1987 was sent from Studer to Gunnett and encouraged Gunnett to help appellant ease into the transitional period after his release from incarceration. The second letter postmarked February 25, 1987 was sent by Studer to Poledna and asked that Poledna pick up appellant when he was released. Moreover, in this correspondence, Studer asked that Poledna get a ski cap, a jump suit, and a BB gun from Gunnett. Although Studer's motivations for this last request were not apparent at the time, he testified at appellant's trial that it was made at the urging of Bonner so he could set him up. On Sunday, March 2, 1987, Poledna and Evelyn Gunnett started comparing the two 3 letters; adding two and two and not coming up with four, they decided to share the contents of this correspondence with Al Gunnett, Evelyn Gunnett's stepfather.

Al Gunnett delivered the letters to the police who instructed Poledna and Evelyn Gunnett to talk with appellant, Studer, and Bonner on the following Monday evening to acquire further information. Poledna complied with the visitation request and visited with Bonner, Studer and appellant, each in turn, to only learn from Studer that "they" were planning on robbing Kentucky Fried Chicken and Peaches and from Bonner that Studer could not be trusted. On the next Thursday, Bonner told Poledna to come by the jail about 8:30 p.m. that night. Bonner told her at that meeting "[t]hat Gary [appellant] was not going to trust Studer's judgment and that they were going to do another place, do a bar is what he said." When appellant was released from jail on that Thursday, Dvorak picked him up as arranged. Poledna was called twice the next evening by appellant; once he was told that Gunnett would be better for the job, and the second time, after apparently deciding to proceed with Gunnett's inclusion in the plot, appellant left a phone number where he could be reached. Gunnett, although not a present crony, was not unknown to the other cast of players since Studer and he had been old boys' school mates, and Fleetwood and Gunnett had socialized a lot and shared a common background. In a complex effort as initiated by the police, Gunnett contacted appellant for a meeting. Gunnett, wired, kept this appointment as was evidenced by the tapes which were produced of the resulting conversation. Appellant advised Gunnett of the layout and the combination to the safe of the Wonder Bar, which had been learned from Bonner.

On March 7, 1987, as following the developed plan, appellant had Gunnett drive him to a place close to the Wonder Bar where he subsequently paid his cover charge and had a few drinks, portraying the role of a normal patron. Appellant, as had been planned, left the main serving area acting as though he were going to the restroom, but continued on and instead went through the hatch door in the roof. Appellant, while hiding in the crawl space, indicated he had "a change of heart." 4 Delayed when the band and manager stayed until approximately 5:30 a.m. and then realizing how "bad" the situation looked, appellant waited to depart until after bar personnel had gone to be caught by the waiting police when he went out the bar's back door. The dollar bills from a shake-a-day jar were discovered missing as apparently picked up by him on attempted departure.

Convicted of conspiracy to commit burglary as well as the substantive offense of burglary, appeal is only taken from the conspiracy count. 5

II. SUFFICIENCY OF THE EVIDENCE

Our standard of evidentiary review has been examined numerous times.

" 'In reviewing the sufficiency of evidence in a criminal case, this court makes a painstaking review of the record to determine if the evidence is sufficient to permit the jury to reach the conclusion that it did. [Citation.] The court will not disturb the verdict if the jury, acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that a defendant was proved guilty of the offense charged. [Citation.] The court considers the evidence in the light most favorable to the verdict and will assume that the jury disbelieved any testimony in conflict with the result it reached. [Citation.]' State v. Richardson, Minn., 393 N.W.2d 657, 661-662 (1986)."

Scadden v. State, 732 P.2d 1036, 1052 (Wyo.1987) (quoting DeSersa v. State, 729 P.2d 662, 664 (Wyo.1986)). See also for the sufficiency rule, Roose v. State, 759 P.2d 478 (Wyo.1988); Righter v. State, 752 P.2d 416 (Wyo.1988); and Carson v. State, 751 P.2d 1315 (Wyo.1988). Appellant narrows the sufficiency inquiry by only contending that there was not enough evidence to support the conspiracy conviction.

This court in Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977) defined conspiracy as:

A conspiracy is an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts performed to further the unlawful design. Goldsmith v. Cheney, 10 Cir.1971, 447 F.2d 624.

The elements of the general conspiracy statute, W.S. 6-1-303, have been defined as: "(1) an agreement between one or more persons to commit a crime, and (2) an overt act to effect the objective of the agreement." 6 Burke v. State, 746 P.2d 852, 855 (Wyo.1987). The overt act is the manifestation of the conspiracy at work. Schultz v. State, 751 P.2d 367, 371 (1988); 2 W. LaFave and A. Scott, Substantive Criminal Law § 6.5 at 94 (1986).

The gravamen of appellant's attack is on the agreement 7 aspect of the conspiracy charge. Appellant argues that there is no substantial evidence of an agreement between appellant and Bonner; therefore, without a meeting of the minds, a conspiracy could not occur. Appellant's misconception is twofold. First, the meeting of the minds theory relates to a bilateral approach to conspiracy which this court has expressly rejected.

"One might suppose that the agreement necessary for conspiracy is essentially like the agreement or 'meeting of the minds' which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates agreement. * * *

"Because most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that ...

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