Bradley v. State, 5509

CourtUnited States State Supreme Court of Wyoming
Citation635 P.2d 1161
Docket NumberNo. 5509,5509
PartiesDavid Neal BRADLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date10 November 1981

Page 1161

635 P.2d 1161
David Neal BRADLEY, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 5509.
Supreme Court of Wyoming.
Nov. 10, 1981.

Page 1162

Michael H. Schilling, App. Counsel, Wyoming Public Defender Program, Laramie, and Sylvia Lee Hackl, Asst. Public Defender, Wyoming Public Defender Program, Cheyenne, signed the brief on behalf of appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Allen C. Johnson, Senior Asst. Atty. Gen., and Dennis C. Cook, Legal Intern, signed the brief on behalf of appellee.

Submitted on briefs.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

RAPER, Justice.

The appeal in this case is from appellant's conviction of willfully injuring or destroying property of another which is valued in excess of $1,000.00 1 and the court's judgment and sentence. The issue raised on appeal concerns the admissibility of evidence of appellant's prior conviction of assault on a police officer. Appellant concedes that no objection was made at trial and thus on appeal the error must have been plain error in order to warrant a reversal.

We will affirm.

The incident, from which the complaint in this case ensued, occurred on September 23, 1980. At approximately four o'clock that afternoon Ms. Lois Alvarez, owner of the Arrow Head Motel in Baggs, Wyoming, was disturbed upon hearing a considerable amount of noise emanating from two units in her motel. She proceeded to one of the units to ask for quiet. In the room she found two individuals whom she identified as appellant and his companion, Dale Schultz. Ms. Alvarez advised these individuals that they were being too noisy. She also expressed surprise at their presence in the room since neither was the person to whom the room was rented.

After this discussion Ms. Alvarez contacted the police. A police officer responded to the call at approximately 5:00 p. m. He advised Ms. Alvarez of the proper procedure for evicting unwanted tenants. He also looked through the window into the room appellant was occupying and could see nothing wrong.

After the police officer left, Ms. Alvarez wrote out eviction papers and took them to

Page 1163

the police department at approximately 6:00 p. m. so that they could be served upon her unwelcome tenants, including appellant. The papers were delivered to the room in which appellant resided shortly thereafter. The room was in an undamaged condition at the time the papers were served.

Sometime after seven o'clock that same evening the police responded to a disturbance call from Ms. Alvarez. She expressed concern that the room was being torn up. The police went to the room and found it "in utter disarray." 2 They arrested both appellant and his companion who were found inside the room. Charges were filed and the case proceeded to trial on December 11, 1980.

Appellant testified in his own behalf. On cross-examination the following transpired:

"Q. Mr. Bradley, you told me that you weren't mad after talking with (the police) the first time and being told that you had to leave.

"A. Right.

"Q. Have you ever had an instance of getting mad at police?

"A. Once.

"Q. And when was that?

"A. When I was drunk.

"Q. And where was that?

"A. In Texas.

"Q. And what did you do?

"A. I assaulted him.

"Q. And what happened as a result of that assault?

"A. I was put on probation.

"Q. For how long?

"A. For three and a half years.

"Q. What kind of charge was there that you were put on probation for?

"A. For assaulting two police officers.

"Q. Are you on probation for that now?

"A. Yes, sir.

"Q. Was that one of those days you lost your temper?

"A. No.

"Q. When you did that to the police officers?

"A. Yeah.

"Q. You didn't lose it this time on September 23rd?

"A. No." 3

As appellant concedes, no objection was made to the prosecutor's questions. Appellant was subsequently convicted by the jury. He now appeals challenging the admissibility of his prior conviction, basing his entire argument on an interpretation of Rule 609, W.R.E., infra.

In his brief appellant acknowledges that, since there was no objection at trial to the introduction of the evidence, in order to warrant a reversal, it must have been plain error to allow the evidence admitted. Rules 49(b), W.R.Cr.P., 7.05, W.R.A.P. and 103 W.R.E. 4 A failure to object

Page 1164

constitutes a waiver of whatever error occurred, unless the error rises to the level of plain error. Leeper v. State, Wyo., 589 P.2d 379 (1979). A three-part test has been established for determining whether an error may achieve the status of plain error. First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. Hopkinson v. State, Wyo., 632 P.2d 79, 104 (1981); Madrid v. State, Wyo., 592 P.2d 709 (1979); Hampton v. State, Wyo., 558 P.2d 504 (1977). Appellant claims that these three criteria are met in this case; however, we do not agree. We hold that the second requirement has not been satisfied since no clear and unequivocal rule of law was violated.

The clear and unequivocal rule of law appellant argues was violated is found in Rule 609(a), W.R.E.:

"(a) General rule.-For...

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