Barnes v. State
| Decision Date | 09 February 1982 |
| Docket Number | No. 5591,5591 |
| Citation | 642 P.2d 1263 |
| Parties | Bobby C. BARNES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Allen C. Johnson, Senior Asst. Atty. Gen., and Terry J. Harris, Legal Intern (argued), for appellee.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
Appellant was convicted of grand larceny as defined in § 6-7-301, W.S.1977. 1 He appeals from the judgment and sentence entered against him and makes three charges of error. First, he argues that the district court erred in denying his motion to suppress an identification of him made in court. His contention is that improper procedures were used to gain a pretrial identification and that, thus, the witness's in-court identification was tainted. Appellant's second challenge concerns several statements made during the prosecutor's closing argument. Here the argument is made that the prosecutor's references to appellant as a liar and a thief constituted plain error and denied appellant a fair trial. Finally, appellant attacks the district court's failure to dismiss the information filed against him in this case. He claims that in this state the prosecution of an offense by information is barred by the Wyoming Constitution.
We will affirm.
On April 23, 1981, the appellant, while in Brighton, Colorado, met an individual by the name of Ray Snyder. After appellant discovered that Snyder was going to Laramie, Wyoming, he offered to pay some of the driving expenses if Snyder would take him along. Snyder agreed to this arrangement. After arriving in Laramie, appellant purchased approximately fifty-five dollars worth of groceries which he took to Snyder's residence. At that location he, Snyder, and Snyder's roommate James Sparks, spent an evening eating and drinking.
Appellant returned to Snyder's residence on April 24, 1981. He and Snyder resumed drinking while they chatted for close to an hour. Appellant mentioned that he was planning to have a party at another residence in Laramie. On the witness stand he indicated that Snyder volunteered to let him use the stereo equipment located in Snyder's house; however, an objection that this was hearsay was sustained. Snyder was not available as a witness nor present at the trial.
On April 25, 1981, appellant returned to the Snyder residence and found no one home. He then sought the assistance of a neighbor, Joseph Fuhrman, in moving the stereo equipment to another location. After helping appellant, Fuhrman reported the occurrence to the police.
When James Sparks, Snyder's roommate, returned home that day, he discovered that certain items of his personal property were missing. Sparks then tracked down appellant in a local bar and found him in possession of some of the missing items. After appellant returned these items, Sparks flagged down a police officer and reported the incident. Shortly thereafter, appellant was arrested and transported to the police station.
Meanwhile, Fuhrman was contacted and asked to identify various items he had helped appellant move. He was also asked for a description of appellant, but before completing it the police officer indicated that he thought he knew who it was and began to suggest to Fuhrman further details of appellant's description. Fuhrman was taken to the police station and asked to view a video monitor of the booking room. At that time appellant and two police officers were the only three occupants of the room. Fuhrman was then asked if that was the guy; he indicated that it was.
An information was filed against appellant charging him with grand larceny. A motion to dismiss the information on the basis that it was unconstitutional to prosecute on an information was denied. A motion to suppress the pretrial identification was also denied by the trial judge following a hearing.
The case proceeded to trial on July 14, 1981. Over objection, Fuhrman was allowed to make an in-court identification of appellant. After the case was submitted to a jury on the morning of July 15, 1981, that afternoon a verdict of guilty was returned. Judgment and sentence was entered on July 27, 1981.
Appellant's first issue concerns Fuhrman's in-court identification. Appellant argues that the district court erred in denying his motion to suppress the identification on the ground that it was tainted by the police procedures used to get a pretrial identification. However, what, if any, error which occurred must be considered harmless beyond a reasonable doubt in this case. After Fuhrman's identification, appellant testified on direct examination as follows:
Appellant conceded that he was the person who Fuhrman had assisted in moving the items in question. In light of such an admission, we cannot see that appellant could have in any way been prejudiced by Fuhrman's identification. At that point he waived any objection he may have had to the identification procedure followed at the police station. Even if the evidence at the close of the State's case was insufficient because of a tainted identification when the defendant proceeded with his evidence, his guilt or innocence will be decided by the evidence, as a whole. Newell v. State, Wyo., 548 P.2d 8 (1976); Neel v. State, Wyo., 452 P.2d 203 (1969), reh. denied 454 P.2d 241 (1969). Thus we need not consider the police identification procedures used in this case.
Appellant's second issue involves the prosecutor's closing arguments to the jury. Appellant contends that, though he did not object at the time, the prosecutor's comments were so egregious as to constitute plain error. In particular, appellant points out the following comments during the prosecutor's closing:
Appellant also notes the following in the prosecutor's rebuttal closing:
We have recently discussed the limits placed upon prosecutors in making closing arguments in Browder v. State, Wyo., 639 P.2d 889 (1982). In particular it is improper for prosecutors to either vouch for their own credibility or to testify as to their own personal belief or opinion of a matter in controversy.
The Browder case also involved the situation where the defense counsel failed to object to the prosecutor's comments during the trial. As we said there, the prosecutor's misconduct must be plain error, that is, it must not only be clear on the record that an unequivocal rule of law was breached but also the violation must be serious enough to undermine the fairness of appellant's trial. As we pointed out in Browder, the occasional use of "I" in closing argument may not be objectionable. Here, the prosecutor's remarks were no more than comments on the state of the evidence. Mayer v. State, Wyo., 618 P.2d 127 (1980). While calling a defendant a thief and a liar may not be in good taste, the evidence discloses a reasonable inference that he was not truthful in his testimony and he was in fact a thief.
We hold the argument of counsel in this case was not as blatant, repetitious, or damaging to the fairness of appellant's trial as in Browder. It is really a question of degree, and after reviewing the record in this case we hold that the prosecutor's comments did not constitute error.
Appellant's final argument is that the district court erred in denying appellant's motion to dismiss the information on grounds that the prosecution of the offense by information was improper. He contends this is required by both the United States Constitution and the Wyoming Constitution.
He grounds his U. S. constitutional argument upon the language found in the Fifth Amendment to the effect that "(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *." However, the United States Supreme Court has consistently maintained that this does not apply to the states. Lem Woon v. Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1913); Bolln v. Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382 (1900); Hodgson v. Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461 (1897); McNulty v. California, 149 U.S. 645, 13 S.Ct. 959, 37 L.Ed. 882 (1893); Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 4 S.Ct. 292, 28 L.Ed. 232 (1884).
His Wyoming constitutional argument is premised upon Article 1, § 13, which provides: "Until otherwise provided by law, no person shall, for a felony, be proceeded against criminally, otherwise than by indictment * * *." However, the Wyoming legislature provided otherwise in Chapter 59, § 1 of the Session Laws of 1890-1891 which states:
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