Crozier v. State

Decision Date05 August 1986
Docket NumberNo. 86-3,86-3
Citation723 P.2d 42
PartiesDennis Wayne CROZIER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender, Martin J. McClain, Deputy State Public Defender, and Julie D. Naylor, Appellate Counsel, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Sylvia Lee Hackl, Senior Asst. Atty. Gen., for appellee (plaintiff).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

URBIGKIT, Justice.

Appellant Dennis Crozier, convicted by a jury of second-degree murder for the strangulation death of six-year-old Frederic Gilbert Touney, III (Freddie), was sentenced to the penitentiary for not less than 30 nor more than 50 years, and now appeals, claiming improper introduction of certain hearsay and bad-acts evidence, an unsatisfactory jury instruction on intoxication, and impermissible comment on his failure to testify. We find no adequately demonstrated basis for the asserted error, and affirm.

Crozier's four assignments of error are more completely stated as:

I. allowing a hearsay statement of the victim to be presented to the jury by testimony of a school counselor;

II. permitting testimony about marijuana when such testimony had no relevance to the crime charged;

III. instructing the jury that the defense of voluntary intoxication applied in connection with first-degree murder only and not second-degree murder or manslaughter; and

IV. violating the constitutional right to silence by the prosecutor's impermissible comment on appellant's failure to testify.

The State contrarily contends that:

I. "The victim's hearsay statements were properly admitted under Rule 804(b)(6) of the Wyoming Rules of Evidence."

II. "The trial court did not err in admitting into evidence statements of Bernadette Touney and Kathy McCord regarding appellant's attempts to obtain marijuana on the night of the murder."

III. "The trial court properly limited the applicability of Instruction 19, dealing with the effect of voluntary intoxication, to the charged offense of first degree murder, since second degree murder is not a specific intent crime."

IV. "The prosecutor's remarks during his closing argument were not comments on appellant's decision to not testify in his own behalf."

What Happened

The victim in this tragic affair was Freddie Touney, age six. His mother, Lorraine, worked for the Cheyenne newspapers as an inserter of fliers and advertisement sections, usually working split shifts, mostly at night. Crozier also had been employed as an inserter. In February, 1985, he came to work drunk, and Lorraine, who was supervising decided that he was risking becoming caught in the machines. She pulled his time card, clocked him out and reported him to the night supervisor at the newspaper, and he was fired.

The Touney family lived in a trailer court in south Cheyenne. Fred Touney is an unemployed social security recipient, totally disabled. He did, however, help his wife Lorraine at her newspaper job, which included delivery of newspapers from the dock to the post office for mailing. Since this work involved night shifts, the Touneys slept much of the day, frequently leaving their children unattended at night. Crozier lived in the same trailer court, and he occasionally came to the Touney house and would stay with the Touney children--Bernadette, age 13, Jeaninne, age 10, Freddie, age 6, Erica, age 5, and Scott, age 2 1/2.

This practice of visiting the Touney home continued even after Crozier was fired. One such evening was Sunday, March 3, 1985. Shortly after Crozier's arrival, an altercation occurred when Freddie called Crozier a faggot, and Crozier then "popped him in the mouth." Mrs. Touney scolded them, and then left the oldest child, Bernadette, with instructions to send Crozier home and Freddie to bed if there was further trouble. Mr. and Mrs. Touney left for work at about 9:30 p.m., and did not return home until approximately 2:30 a.m.

After the parents left, Crozier began watching television with the children. He had a cold, and he brought with him a pitcher of toddy which his roommate had mixed for him, containing a "whole bottle of brandy" (emphasis added) and a gallon of lemonade.

At about 10:00 p.m., Crozier asked Bernadette to go to a neighbor, Kathy McCord, to see if she would find him some marijuana. Bernadette complied, and Kathy and Bernadette returned together to the Touney home, where Kathy told Crozier that she would try to locate some marijuana for him. Kathy and Bernadette left together, stopped at two neighbors' trailers, but were unable to acquire any marijuana. On returning, Freddie and nine-year-old Jeaninne Touney were smoking cigarettes, causing Kathy and Crozier to start an argument over his letting these small children smoke. At some point, Kathy began playing with Freddie's dog. Freddie thought she was hurting the dog, and called her a bitch. Crozier said to Freddie, "Shut up right now before I hit you." Freddie responded, "You ain't going to hit me," to which appellant retorted, "You want to make a bet?" Bernadette intervened and the two stopped arguing. When Kathy McCord tried to leave, Crozier blocked the front door and chased her down the hall to the back door, dragging her back into the living room. More arguing ensued, after which Kathy got away and went home. The trial evidence was not pleasant, and the factual situation could hardly accord with the American dream.

Jeaninne went to bed, Freddie went to his parents' bed as was his usual practice, and Bernadette and Crozier continued to watch television, although he repeatedly distracted Bernadette from watching television, and she repeatedly told him to "shut up." He picked her up, and she said, "Put me down right now." Crozier said, "Why, do you think I'm going to hurt you?" Bernadette responded, "I don't know," after which appellant said, "I wouldn't hurt your family. The only one I might hurt was Freddie."

Bernadette went to bed, stopping first to check on Freddie, who was resting in his parents' bed. The boy was awake, and complained of a stomachache and a headache. Bernadette listened to her radio for a time after she went to bed, until about 11:30 p.m., when she saw Freddie walk down the hall past her room toward the living room. She heard him say hoarsely, "Dennis, I don't feel well." She fell asleep, and was awakened later, when Crozier came into her room to say that he was leaving. Bernadette heard the front door shut, went to the living room to assure herself that the door was shut, checked on two-and-a-half-year-old Scotty in her parents' room, and then called to Freddie in the darkness of her parents' bedroom. He did not respond, and she went back to bed.

She was awakened when her parents returned home, and Mrs. Touney found Freddie's limp body in his sister Erica's bottom bunk bed. They carried Freddie to the living room, laid him on the floor, and began performing mouth-to-mouth resuscitation, while the father went to a neighbor's house for a telephone to call an ambulance. Bernadette then went to the mobile home of Crozier and his roommate. Crozier followed Bernadette home and began helping Mrs. Touney with cardio-pulmonary resuscitation until a sheriff's deputy arrived to check Freddie for a pulse, and there was none. Crozier continued mouth-to-mouth resuscitation, and hollered at Freddie, "You can't do this to me. No one dies around me."

When the ambulance arrived, one of the attendants inquired about the marks on Freddie's neck, to which no one responded. A neighbor who arrived on the scene also asked about the marks on Freddie's neck, to which Crozier responded, "Those? Don't worry about them."

One deputy testified that Crozier kept repeating to Mr. Touney that he was sorry, that it was his fault. All efforts to revive the boy were unsuccessful, and he was pronounced dead at 3:23 a.m. Crozier was questioned, allowed to return home, and then was arrested that morning for murder.

The autopsy pathologist testified at trial that Freddie had a contusion on his left eyelid, abrasions on the nose and face, extensive neck abrasions, some in a criss-cross pattern, scrape wounds on the thigh, and an injury to the back of the head. The liver was also lacerated due to a blunt-force injury; there was bleeding around the pancreas; and the brain showed signs of cerebral edema, indicating a significant degree of trauma to the brain. The neck abrasions indicated that something had been wrapped around his neck and twisted. The pathologist concluded that Freddie was strangled, his best estimate being that the injuries occurred between 10:30 p.m. and 12:30 a.m., minutes before his death.

A statement of Crozier about the evening's events was suppressed by appropriate motion after hearing and comprehensive court ruling premised on constitutional questions.

Crozier was tried by a jury for first-degree murder. The defense rested, without presenting any witnesses, and the jury convicted Crozier of the lesser included offense of second-degree murder.

Hearsay Evidence--Testimony of the School Counselor

One of the four issues raised in this appeal involves the admissibility of testimony of Vicky Anderson, a counselor at Freddie's elementary school who had been working with Freddie on his learning disability and behavior problems for a year. This witness testified that during the year the child had made academic progress and improvements in his social and behavior problems, except that about two weeks before his death Freddie had displayed "some extremely deviant behavior." On February 27, 1985, Ms. Anderson began his annual evaluation, consisting of a series of assessment tests, one of which involved Ms. Anderson beginning a sentence which the child was to complete. When Ms. Anderson said, "If I could do anything I wanted to do," Freddie completed...

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