Cloman v. State
| Citation | 574 P.2d 410 |
| Decision Date | 31 January 1978 |
| Docket Number | No. 4489,4489 |
| Parties | Billy James CLOMAN, a/k/a Billy James Kloman, Julian Pernell Turner, a/k/a William Coleman, a/k/a Willie Joseph Spotman, Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Byron Hirst, James L. Applegate, Douglas G. Madison, Scott Lewis, Hirst & Applegate, Cheyenne, for appellants.
V. Frank Mendicino, Atty. Gen., David A. Kern and William M. Sutton, Senior Asst. Attys. Gen., Timothy J. Judson and Arthur T. Hanscum, Asst. Attys. Gen., Cheyenne, for appellee.
Before GUTHRIE, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and ARMSTRONG, District Judge, Retired.
Billy James Cloman and Julian Pernell Turner appeal from death sentences imposed by the district court of Albany County, Wyoming, after return of four separate guilty verdicts relating to the deaths of Lloyd Witt and Ray Davis, residents of Laramie County, Wyoming. Among other assignments of error the defendants attack the constitutionality of those provisions of the statute mandating the death penalty in first degree murder convictions.
On August 10, 1974, the date the verdicts were rendered the relevant parts of § 6-54, W.S.1957, 1975 Cum.Supp., read as follows:
The severability clause enacted in conjunction with § 6-54, found in Sec. 2, Ch. 136, S.L. Wyoming 1973, provides:
"If any provisions of this act or the application thereof to any person or circumstances, including any one or more of the above enumerated instances in which a mandatory sentence of death shall be imposed, is held unconstitutional or otherwise invalid, such unconstitutionality or invalidity shall not affect any other provisions or applications of this act, and to this end the provisions of this act are declared severable."
It was held by this court in Kennedy v. State, 559 P.2d 1014 (Wyo.1977), that the mandatory sentence prescribed in § 6-54(b) was unconstitutional, but by applying the severability clause to § 6-54(e) so that it read "Upon conviction of murder in the first degree, the person convicted shall be sentenced to imprisonment for life," the defendants there were to be resentenced to life imprisonment. We shall remand this case for similar sentencing. Anderson v. State, 267 So.2d 8 (Fla.1972).
The defendants also attack the verdicts as being so ambiguous, indefinite and prejudicial that their convictions must be reversed as plain error.
Each defendant was found guilty of murdering each victim by separate verdicts which read the same except for name changes. One reads:
person(s) in one series of related events as instructed in Instruction No. 12;
" * * * "
When the words of aggravating conduct are severed from the verdicts, they read: "(X) Guilty of the crime of Murder in the First Degree of Lloyd Witt (Ray Davis) as instructed in Instruction No. 12."
Instruction No. 12 reads in part:
"I. MURDER IN THE FIRST DEGREE WITH SPECIAL CIRCUMSTANCES.
A. MURDER IN THE FIRST DEGREE DURING THE COURSE OF A KIDNAPPING.
1. That the deceased, Lloyd Witt and Ray Davis came to their death on or about the 27th of December 1973;
2. That they were killed by the defendants charged;
3. That the killing was done purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate a robbery;
4. That the crime was committed in Laramie County, Wyoming;
5. That the killing was done during the course of a kidnapping;
6. That each defendant did aid and abet the other defendant in the murder with premeditated malice of Lloyd Witt and Ray Davis, or that each defendant did aid and abet the other defendant in the murder of Lloyd Witt and Ray Davis in the perpetration of, or attempt to perpetrate a robbery."
Paragraph B of the Instruction reads the same except it refers to murder in the first degree of two or more persons in a series of related events. Deleting the fifth paragraph of the Instruction, thus avoiding the unconstitutional aggravating circumstances, i. e. kidnapping and in a series of related events (§ 6-54(b)(vii) and (x)), it is observed that all of the essential elements of § 6-54(a) are retained. Included in the retention is paragraph 3, that the killing was done purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate a robbery.
After excising paragraph 5 in the Instruction, there still remains a disjunctive. Did the jury find evidence of premeditated murder or felony-murder in the commission of a robbery, or both?
The "proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1956).
The dilemma in Yates is not present in this case. As the court said in United States v. Natelli, 527 F.2d 311, 325 (2d Cir. 1975), cert. den. 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 829:
" * * * Inasmuch as the evidence was sufficient to support Natelli's conviction on either specification, the charge given presents no problem to affirmance as to him."
In other words, this court is convinced that the facts in evidence and the reasonable inferences therefrom amply justified the holding that the jury found both premeditated murder and felony-murder in the commission of a robbery. To substantiate that, and the Natelli statement, a review of some of the facts in this record is necessary.
The partially frozen bodies of Witt and Davis were discovered at about 9:30 a. m. on the morning of December 28, 1973, some 33 hours after they had left the Witt residence accompanied by two men clearly identified as the two defendants. The four men left the Witt residence between 1:00 and 1:15 a. m. in the early morning of December 27, 1973, in a truck owned by Witt, the purpose of the trip being to take the two defendants to a motel in Cheyenne According to Mrs. Witt the two defendants entered the Witt home, in separate intervals, and as she recalled without knocking, at about 11:30 p. m. on the evening of December 26. Both complained that it was bitterly cold outside, that their car had broken down and that they had walked a good many miles. In an in-court identification of the two defendants Mrs. Witt described both men as wet and cold and particularly the one she identified as Cloman as The two men told the Witts that the automobile in which they had been proceeding westerly to Oregon had broken down some distance to the east of the Witt house and that they wanted to find a motel where they could spend the night. To a question by Witt whether they should not call a wrecker, the men replied that that could wait until morning. Actually, and as well established by independent evidence, defendants had left Portland, Oregon, about a week and a half before Christmas, in a 1964 Pontiac, with a fourteen-year-old female companion who testified at the trial. According to her testimony, the three had left Portland intending to go only to Salem, some 50 miles distant, but they kept going until their car broke down at a point near Heber City, Utah, where they either abandoned it or it was removed from the highway in their absence. In any event they had no car on the night in question. At this stage of their travel they were befriended by a passing truck driver who lived in the vicinity and who furnished them with food, a couple of nights' lodging and assisted them in finding a ride into Vail, Colorado, from which point they hitchhiked on in to Denver, Colorado, where they visited a girl known to one of the defendants. The witness' connection with the trip ended in Denver when she was taken into custody by juvenile authorities. Defendants then continued to Cheyenne, Wyoming, in part by bus, but hitchhiking the rest of the way when the bus broke down. In Cheyenne they ate, played a little pool and tried to hitch a ride on to the east but without success. They then walked the some twelve miles to the Witt residence, entered and succeeded in getting Mr. Witt and his friend Davis to commence the ill-fated journey.
Wyoming. At this time Witt told his wife that "I will be back as soon as I possibly can." So far as the record discloses no one except the defendants ever saw Witt and Davis alive after that moment. Their bodies were found after an extensive search at a point some two and one-half miles west of the Witt home, which home is some 12 miles east of Cheyenne, not far from U.S. Highway...
To continue reading
Request your trial
-
Engberg v. State
...Wyo., 672 P.2d 777, 801-803 (1983). The cases considered in that context were Hopkinson v. State, Wyo., 664 P.2d 43 (1983); Cloman v. State, Wyo., 574 P.2d 410 (1978); Kennedy v. State, Wyo., 559 P.2d 1014 (1977); Pixley v. State, Wyo., 406 P.2d 662 (1965); and State v. Brown, 60 Wyo. 379, ......
-
Cook v. State
...a "significant prospect of violence." In Wyoming, robbery may be summarized as a larceny aggravated by force or fear. Cloman v. State, 574 P.2d 410, 419 (Wyo.1978). Larceny is defined by The purpose of the robbery statute is evident by the form of the cascade in which it exists. As the thre......
-
Birr v. State
...case.8 The felony murder statute requires that the killing occur in a continuous transaction with the underlying felony. Cloman v. State, Wyo., 574 P.2d 410 (1978). Further, for aggravated robbery, the use of a deadly weapon must be "in the course of committing the crime of robbery." Sectio......
-
Bouwkamp v. State
...with both contentions. The key phrase in the instruction, "in the perpetration of," relied on by the state is found in Cloman v. State, 574 P.2d 410, 418-21 (Wyo.1978). "Perpetration," as used here, is the act or process of commission of a specified crime. Webster's Third New International ......