Clegg v. State
Decision Date | 23 December 1982 |
Docket Number | No. 5699,5699 |
Parties | Robert L. CLEGG, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Sandra G. Siel, Student Director, Wyoming Defender Aid Program, and Karen A. Byrne, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., and Marion Yoder, Asst. Atty. Gen., for appellee.
Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
Appellant appeals from a judgment and sentence rendered on a jury verdict which found him guilty of three counts of an information charging him with six separate sexual assaults, each in violation of § 6-4-302(a)(ii), W.S.1977. 1 He was found not guilty of the other three counts of the information.
Appellant contends that there is reversible error in that (1) the verdict was inconsistent "as to the key element of consent" inasmuch as the evidence on the issue of consent "is identical as to every count," and (2) his motion for mistrial was not granted, the motion being predicated on the victim calling the appellant a "goddanm [sic] liar" while appellant was testifying.
We affirm.
We need not detail the facts of this case. In brief summary, victim testified to having been forced by appellant to accompany him in his automobile to a spot near Boysen Reservoir where he inflicted six acts of sexual penetration 2 on her. Appellant acknowledged three of these acts and denied the other three. He contended that he did not force her to accompany him and that she consented to the three acts which he acknowledged to have occurred. Victim's torn blouse and bra were introduced into evidence. Jewelry and other personal effects belonging to her and found by the police at the site of the occurrence were also introduced into evidence. When appellant testified that one of the acts was initiated by victim, she called out "[y]ou goddanm [sic] liar." The court called an immediate recess. Appellant moved for a mistrial. The judge denied the motion and admonished the jury as follows
Implicit in appellant's contention of error based on verdict inconsistency (because the evidence of consent was identical with reference to all six counts of the information) is the assumption that the jury found him not guilty on three counts for the reason that consent was found to exist for the acts involved in those three counts and that it was found not to exist for the acts involved in the other three counts. We cannot make such assumption. The jury could have found that the victim did not consent to any sexual assault, and that only three assaults or acts actually occurred. The finding of only three assaults or acts is consistent with appellant's testimony. He acknowledged the three assaults or acts and denied the other three as alleged by the victim. The jury may have believed him in this respect. He contended that the victim consented to the three instances or acts. She denied consent to any instance or act and testified to six of them. The jury may have believed the victim rather than the appellant with reference to the fact of consent. The jury verdict then would be entirely consistent, i.e., only three acts occurred and they were not consented to by the victim. See Padilla v. State, Wyo., 601 P.2d 189 (1979).
Appellant would have us hold that if the jury did not believe a witness on one item it must not believe the witness on any other item. The determination of the credibility of witnesses is the province of the jury. Montez v. State, Wyo., 527 P.2d 1330 (1974); Brown v. State, Wyo., 581 P.2d 189 (1978).
" * * * '[I]n the trial of a conventional criminal case, it is the province of the jury to observe the witnesses, to appraise their credibility, to weigh their testimony, to draw reasonable inferences from established facts, to resolve conflicts, and to determine the ultimate question whether the guilt of the accused has been established beyond a reasonable doubt.' * * * " Ditrich v. United States, 243 F.2d 729, 730 (10th Cir.1957).
A jury may accept all of the testimony of a witness, it may accept none of it, or it may accept only a portion of it. Hopkinson v. State, Wyo., 632 P.2d 79 (1981); People v. Garner, 187 Colo. 294, 530 P.2d 496 (1975). Considering this option, the result here reached by the jury was not necessarily inconsistent. 3
Additionally, the record reflects a failure on the part of the appellant to object to the substance of the verdict when it was returned.
Rule 32, W.R.Cr.P., provides in part:
The foregoing is identical to Rule 31(d), F.R.Cr.P., wherefore cases decided by the federal courts are persuasive.
" * * * failure to preserve any objection to the jury verdict below results in a waiver of appellant's right to claim an impermissibly ambiguous verdict * * *." United States v. Previte, 648 F.2d 73, 80 (1st Cir.1981). See Williams v. United States, 238 F.2d 215 (5th Cir.1956), cert. denied 352 U.S. 1024, 77 S.Ct. 589, 1 L.Ed.2d 596 (1957).
In DeWitty v. Decker, Wyo., 383 P.2d 734, 738 (1963), we held that "[f]ailure of a litigant to exhaust the remedy so afforded has its consequences," and that failure to object to the form or substance of a verdict within time whereby corrective action could be obtained amounted to a waiver of any irregularity, informality, ambiguity or other error in the verdict. See Energy Transportation Systems, Inc. v. Mackey, Wyo., 650 P.2d 1152 (1982), in which verdict error was preserved by timely objection.
In any event, we have specified under what conditions we will consider any error not presented to the trial court, and they are applicable to error in the verdict:
" * * * A contention for error first raised on appeal will not be considered unless it qualifies as plain error. Hampton v. State, Wyo., 558 P.2d 504 (1977). The plain-error doctrine is to be applied cautiously and in exceptional circumstances. Hampton v. State, supra; Downs v. State, Wyo., 581 P.2d 610 (1978).
" Ketcham v. State, Wyo., 618 P.2d 1356, 1359 (1980).
Certainly, a violation of a clear and unequivocal rule of law is not here demonstrated. Inconsistency does not exist and inconsistency may not be fatal if it does exist (see fn. 3).
"In general, all matters which relate to the orderly conduct of a trial, or are necessary to the proper administration of justice in a court, and which are not regulated by precise statute or rule, are within the discretion of the presiding judge." 88 C.J.S. Trial, § 36.
Because the trial judge is in an advantageous position from which to gauge the effect on the jury or a witness of a violation of courtroom decorum, he will be allowed considerable latitude in the exercise of his discretion in ruling on a motion for a mistrial for such violation. His ruling thereon will constitute reversible error only in the event of a clear abuse of such discretion resulting in prejudice to the defendant. Gallup v. State, Wyo., 559 P.2d 1024 (1977); State v. Spears, 76 Wyo. 82, 300 P.2d 551 (1956); State v. Hill, 49 Or.App. 297, 619 P.2d 671 (1980).
The court in this instance maintained complete control of the situation. A recess was called and the jury was adequately instructed to disregard the incident. Prejudice to the appellant has not been evidenced. The burden to evidence prejudice is on appellant. Morris v. Commonwealth, Ky., 459 S.W.2d 589 (1970); Cooper v. State, Okl.Cr.App., 524 P.2d 793 (1974).
* * * " (Emphasis added.) Christian v. United States, D.C.App., 394 A.2d 1, 23 (1978), cert. denied 442 U.S. 944, 99 S.Ct. 2889, 61 L.Ed.2d 315 (1979).
It could well be that the outburst could redound against the victim and have the effect of discrediting her in the eyes of the jury. ...
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