Blakely v. State, 4501
| Decision Date | 21 November 1975 |
| Docket Number | No. 4501,4501 |
| Parties | Howard BLAKELY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John W. Davis, Worland, signed the brief and appeared in oral argument on behalf of appellant.
V. Frank Mendicino, Atty. Gen., Timothy J. Judson, Special Asst. Atty. Gen., Frank R. Chapman, Legal Intern, Cheyenne, and Stanley F. Freedman, Law Student, Prosecution Assistance Program, University of Wyoming, Laramie, signed the brief.
Timothy J. Judson, Cheyenne, and Frank R. Chapman, Law Student, appeared in oral argument on behalf of appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
The defendant-appellant was charged, tried, found guilty by a jury and sentenced for misbranding livestock, a felony. 1 He charges three errors of the trial court in this appeal: (1) the trial court erred in ruling that defendant's motions to dismiss and suppress were untimely and further erred in repeating this ruling upon the defendant's objections to the introduction of evidence gained in two searches preceding his arrest; (2) the trial court erred in refusing to give defendant's instruction 'A' which cautioned the jury not to employ evidence giving rise to mere suspicion or conjecture of guilt; and (3) the trial court erred in refusing to include with the 'circumstantial evidence' instruction the words 'to the exclusion of all others.'
The defendant was charged originally on the count of which he was convicted and another of cattle stealing. He first entered a plea of not guilty to the charges on May 3, 1974; on the same date the case was set for trial to begin May 22, 1974. On May 22, 1974, the defendant changed his mind and entered a plea of guilty to the charge of stealing cattle and the county attorney dismissed the charge of misbranding. On July 31, 1974, the defendant had another change of heart and, by leave of court, withdrew the plea of guilty and entered a plea of not guilty. The charge of misbranding was reinstated, to which a plea of not guilty was entered. On the same latter date the case was set for trial on August 14, 1974.
On August 8, 1974, the defendant filed a motion to suppress evidence of the seizure of the cattle which had been overbranded, because of an allegedly invalid search warrant, which had been executed on April 17, 1974. The motion was noticed by mail on the same date for hearing on August 13 1974, at 3:00 p.m. August 8, 1974 fell on Thursday. August 13, 1974 came on Tuesday of the following week. The trial judge heard evidence and argument on the date at the hour set. He did not rule on the merits of the motion but held it untimely. The motion was reasserted on and off during the trial which started the following day.
The first issue involves no more than the simple construction of rules, an ability to read a calendar and the application of elementary arithmetic to the formula provided by the Wyoming Rules of Criminal Procedure. How and when? It has long been recognized even before the rules that a court is not required to halt the progress of a trial and consider the incidental question of search and seizure, which is independent of the real question of guilt or innocence. A claim of illegal search must be presented to the court seasonably before trial. Weeks v. United States, 1914, 232 U.S. 383, 396, 34 S.Ct. 341, 345-346, 58 L.Ed. 652, 657, L.R.A. 1915B, 834, 843, Ann.Cas.1915C 1177, 1181; Nardone v. United States, 1939, 308 U.S. 338, 341-342, 60 S.Ct. 266, 268, 84 L.Ed. 307, 312.
Rule 40(e), W.R.Cr.P., in pertinent part, is as follows:
2
W.R.Cr.P. 43(a) sets out the formula for computation of time:
W.R.Cr.P. 43(c), in pertinent part, is as follows:
'A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing unless a different period is fixed by rule or order of the court. * * *' 3
W.R.Cr.P. 43(d) adds time when service is by mail:
'Whenever a party has a right or is required to do an act within a prescribed period after the service of a notice or other paper upon him and the notice or other paper is served upon him by mail, three days shall be added to the prescribed period.'
Counsel for defendant certified in writing on the motion that it was deposited in the United States mail on the 8th day of August, 1974, addressed to the county attorney; defendant claims, however, that it was personally served. The county and prosecuting attorney raised no objection to the hearing scheduled for the day before trial. In any event, minimum notice, even if personal service was made, under these rules, would fall on August 16, 1974, two days after the trial was set to start.
The rules with respect to time must be read along with Rule 40(e), all of which are in mandatory language, with the total result under the facts of this case being that a motion to suppress 'shall' be made before trial and 'shall' be served not later than five days before the time specified for the hearing, excluding the intervening Saturday and Sunday. The motion was thus not timely filed. The rules direct what is timely and seasonable and thus conform to Weeks and Nardone, supra.
An identical interpretation of these rules is found in Morgan v. People, 1968, 166 Colo. 451, 444 P.2d 386, where it was said that reading the two rules together adequately preserves the defendant's right to raise his Fourth Amendment issue without commingling it with the guilt issue. According to Jones v. United States, 1960, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697, 704, 78 A.L.R.2d 233, 241, 4 the purpose of Federal Rule 41(e) requiring the motion to suppress before trial, is to eliminate disputes over police conduct not relevant to the question of guilt.
The defendant had over three months in which to file his motion to suppress. There is no showing made by the defendant that the motion was not earlier filed because opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The trial court did not abuse his discretion when he ruled the motion untimely nor did he abuse it during the trial in refusing to further entertain the motion. Any delay is attributable to no one but the defendant himself. This case had been previously set for trial and on that trial date the defendant changed his plea and within about a month changed his plea back to not guilty. One wishing to preclude the use of evidence obtained through a violation of his constitutional rights must protect himself by timely action. If he has had an opportunity to suppress the evidence before trial and has failed to take advantage of his remedy, objection to the evidence upon the trial will not avail him. A defendant has the duty to protect himself and he should not be allowed to make his own rules of procedure.
We can see no merit in any argument that since the court heard the motion, he was obliged to rule on it. It was well-ordered procedure for him to do so, and an act of grace as well. It at least allowed the trial judge to be aware of the circumstances of the search before some interruption should occur during the trial and catch him flatfooted with a serious question in discretion. A court is entitled to some fair notice as well, particularly in the murky complexities of search and seizure. Judges are not always prepared to hand down a decision instanter. Now, the defendant must abide the consequences of his tardiness. 'Viewing' a motion does not 'sacrifice' the right of the trial judge to declare it untimely. United States v. Maloney, 1 Cir. 1968, 402 F.2d 448, 449, cert. den. 394 U.S. 947, 89 S.Ct. 1283, 22 L.Ed.2d 481.
The defendant complains that the court should have given an offered particular instruction warning the jury against evidence creating only a probability of guilt as mere suspicion or conjecture of guilt. 5 The offered instruction was not an erroneous statement of principle, having been taken from State v. Rideout, Wyo.1969, 450 P.2d 452, 454-455. By the court's opening instruction, the jury was instructed as to its function and manner of performance and it was stated: 'This duty you shall perform with sincere judgment and sound discretion, uninfluenced by sentiment, conjecture, or by passion or prejudice against any of the litigants in this case, or by public opinion or public feeling. * * *'
As said in Mares v. State, Wyo.1972, 500 P.2d 530, 539:
'* * * It is of course not error for the trial court to refuse a requested instruction, even if it states a correct principle applicable to the case, when the subject has been covered properly and sufficiently by other instructions. * * *'
Other instructions were generous to the defendant in clothing him with a presumption...
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