Carrillo v. State

• Decision Date: 09 September 1970
• Docket Number: No. 3826,3826
• Citation: 474 P.2d 123
• Parties: Danny J. CARRILLO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 123

474 P.2d 123

Danny J. CARRILLO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3826.

Supreme Court of Wyoming.

Sept. 9, 1970.

Raymond B. Whitaker, Casper, for appellant.

James E. Barrett, Atty. Gen., Donald L. Painter, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before GRAY, C. J., and McINTYRE, PARKER, and McEWAN, JJ.

Mr. Chief Justice GRAY delivered the opinion of the Court.

The defendant, Danny J. Carrillo, was found guilty by a jury of the crime of assault with a deadly weapon and sentenced to a term in the penitentiary of from four to six years. He appeals. In his brief he assigns as error four separate incidents occurring in the conduct of the trial, but in oral argument to the court two of the points relied upon were waived and there is now before us the claim that the court erred (1) in giving Instruction No. 8 pertaining to the presumption of innocence, and (2) in refusing to grant plaintiff's motion for mistrial when a State's witness testified concerning prejudicial previous acts of the defendant against different people which had no relation to the crime charged.

By way of background, the record discloses that defendant's conviction grew out of an altercation on the evening of February 21, 1969, between the defendant, who was then 15 years of age, and Mike Genoff, of the same age, at the time Genoff accompanied by three young ladies was out of a theater. The defendant admits that he was the perpetrator and aggressor of the first encounter between the two when a few blows were struck; but as might be anticipated from the defendant's claim of self-defense, the testimony with respect to what happened shortly thereafter in an alley when defendant stabbed Genoff in the abdomen with a knife is most conflicting. There was, however, an abundance of substantial evidence to support the verdict of the jury.

Turning to the contention that the trial judge erred in giving Instruction No. 8, and keeping in mind our oft-repeated pronouncement that the instructions must be considered as a whole, it will be helpful to set out first Instruction No. 7, which also dealt with the presumption of innocence and was as follows:

'YOU ARE INSTRUCTED that the defendant is presumed to be innocent of the crime charged against him until he is proven guilty beyond a reasonable doubt. This presumption of the defendant's innocence accompanies him throughout the trial and goes with the jury in their retirement and deliberation in the jury room, and the evidence must be examined in the light of such presumption, and it entitles the defendant to an acquittal unless it is overcome by such evidence as to satisfy the jury of the defendant's guilt beyond a reasonable doubt.'

This was then immediately followed by Instruction No. 8, to which defendant excepted, reading as follows:

'YOU ARE INSTRUCTED that the rule which clothes every person accused of crime with the presumption of innocence and imposes upon the State the burden of establishing his guilt beyond a reasonable doubt is not intended to aid anyone who is in fact guilty to escape, but is a humane provision of the law, intended tended insofar as human agencies can, to guard against the danger of any innocent person being unjustly punished. To establish the guilt of a defendant beyond a reasonable doubt is not meant that such guilt shall be established to an absolute certainty. Absolute certainty in the establishment of any fact is rarely attainable, and never required in courts of justice.' (Emphasis supplied.)

It is the above-emphasized phrase upon which defendant levels his attack.

In this connection it should be noted that subsequent to the time that defendant's brief was filed in this case and prior to argument we had occasion, in the case of Kennedy v. State, Wyo., 470 P.2d 372, 373, 375, to review an identical instruction and although recognizing that it would be improper 'to add a self-defeating qualification' to an instruction on the presumption of innocence, we nevertheless held that this instruction when considered together with an instruction identical to Instruction No. 7 above was not subject to criticism in that respect and was not erroneous. In view of that decision, counsel for the defendant was in somewhat of a dilemma as to whether or not argument on the contention here was foreclosed.

In the discussion that ensued, however, it was pointed out that the mandate in Kennedy had not yet gone down and counsel was informed that we were not averse to giving further consideration to the question, particularly in view of a recent decision of the Colorado Supreme Court in Martinez v. People, Colo., 470 P.2d 26, wherein that court condemned-with one minor exception-the use of an identical phrase in an instruction. Thereupon the point was fully argued, is again before us, and we have given it full and careful consideration.

In Kennedy, which is still before us on a petition for rehearing, as well as here, the defendant relies heavily on the case of Reynolds v. United States, 9 Cir., 238 F.2d 460, and in addition of course upon the Colorado decision which was not available at the time of argument. Perhaps the first thing that needs to be done in this case is to reconsider the discussion in the Kennedy opinion, at page 376, wherein it was indicated that use of the phrase 'for the purpose of aiding the guilty to escape punishment' as a part of an instruction on the presumption of innocence was approved in the Reynolds case. As therein reflected, the conclusion was drawn for the reason that the Reynolds opinion, at page 463, did contain a general discussion relating to the development of the rule on the presumption of innocence and therein it was agreed that the rule was not developed for the purpose of aiding the guilty to escape punishment. However, what seems to have been overlooked was the more precise discussion that followed concerning the implication that could be drawn by a jury from the inclusion of that language in an instruction. In addition, it appears that any obscurity as to what the court in Reynolds intended to reach as an improper qualification of the rule was removed in the later case of Shaw v. United States, 9 Cir., 244 F.2d 930, 938. In that case the court again had before it the identical instruction given in Reynolds that ended with the clause 'but it is not intended to prevent the conviction of any person who is in fact guilty or to aid the guilty to escape punishment' (emphasis supplied), and of this it was said, 'This Court has heretofore disapproved the last clause of this identical instruction here attacked,' citing the Reynolds case. Consequently, confessing our shortcomings, we now retract any indication that the Kennedy instruction 'followed what was approved in Reynolds' and recognize Reynolds as authority to the contrary.

That is not to say, however, that we now go into full retreat from our holding that the Kennedy instruction was factually and legally correct. There are two sides to this question. The view that the phrase under discussion is misleading and erroneously qualifies the presumption, which defendant's counsel describes as an 'enlightened' view, recognizing that 'the law is changing as times, customs and people change,' of course finds support in the Ninth Circuit cases, supra; in the Fifth Circuit in the case of Gomila v. United States, 5 Cir., 146 F.2d 372; in the State of Mississippi as reflected in Chinn v. State, Miss., 210 So.2d 666; and in the Martinez case, supra. In...