Dallenbach v. State, 4567

CourtUnited States State Supreme Court of Wyoming
Citation562 P.2d 679
Docket NumberNo. 4567,4567
PartiesDennis Lee DAELLENBACH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
Decision Date01 April 1977

Page 679

562 P.2d 679
Dennis Lee DAELLENBACH, Appellant (Defendant below),
The STATE of Wyoming, Appellee (Plaintiff below).
No. 4567.
Supreme Court of Wyoming.
April 1, 1977.

Page 680

Cary R. Alburn III, Laramie, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Frank R. Chapman, Asst. Atty. Gen., and Steve D. Noecker, Legal Intern, Cheyenne, and Kennard Nelson, Deputy County and Prosecuting Atty., Albany County, for appellee.


ROSE, Justice.

Dennis Lee Daellenbach was convicted by an Albany County District Court jury of aggravated robbery under § 6-66, W.S.1957, and sentenced to a period of not less than six nor more than seven years in the Wyoming State Penitentiary. From that conviction and sentence he has prosecuted this appeal.

On February 21, 1975, Daellenbach and one Steven W. Franklin were arrested in connection with the armed robbery of a Mini-Mart grocery store in Laramie, Wyoming. At trial, Franklin, who had previously pleaded guilty to a charge of aggravated robbery and was awaiting sentence, testified that it was Daellenbach who originally armed himself and entered the store intending to rob it. After approximately ten minutes, Daellenbach returned saying he couldn't to it. Franklin related that he then entered the store, armed with a revolver, and demanded and received some money bags. A short time later, while driving east on Interstate 80, Daellenbach and Franklin were stopped and arrested by the Wyoming Highway Patrol. Two revolvers and a portion of the stolen moeny were recovered from Franklin's car.

On appeal, Daellenbach raises five points of error:

'I. The district court improperly instructed the jury to disregard the fact that the defendant, Daellenbach, did not testify.

II. The district court improperly prejudiced Daellenbach by admitting numerous items of evidence that were either unrelated to him or connected with him by only the most tenuous thread.

III. The district court improperly denied without a hearing Daellenbach's motion for new trial.

IV. The prosecution failed to prove beyond a reasonable doubt all the essential elements of aggravated battery.

V. The sentence imposed is excessive. We will affirm the judgment and sentence of the trial court.

Page 681


Daellenbach's initial point of error urges that the district court's instruction to the jury to disregard the fact that he did not testify constituted improper comment on an accused's constitutional right to remain silent. 1 Since the record indicates no objection was made to the instruction, our only avenue of review is within the doctrine of plain error. Rule 51, W.R.C.P., Rule 49(b), W.R.Cr.P., and Hays v. State, Wyo., 522 P.2d 1004, 1007.

In order for an alleged error to fall within this doctrine, specific minimum criteria must be met. It must be clear from the record, without resort to speculation or equivocal reference, exactly what occurred at trial. The proponent of the doctrine must demonstrate the existence of a clear and unequivocal rule of law; and the particular facts of the case must clearly and obviously, not just arguably, transgress that rule. Finally, once these criteria have been met, it must be shown that some substantial right of the accused has been adversely affected. These criteria apply even when constitutional error is alleged; and unless each one of them is satisfied, any claim for review under the plain-error doctrine must fail. Hampton v. State, Wyo., 558 P.2d 504, 507-508.

When measured by these criteria, it is clear Daellenbach's assertion of instructional error is doomed. There is no clear rule of law which states that the giving of a jury instruction to disregard and draw no inference from a defendant's failure to testify is error. Quite to the contrary, there is substantial authority for the proposition that even if unrequested, the giving of such a cautionary instruction is proper. Annot. 18 A.L.R.3d 1335; United States v. Epperson, States, 10 Cir., 388 F.2d 171, cert. den. 393 States, 10 Cir., 388 F.2d 171, cert. den. 393 U.S. 863, 89 S.Ct. 144, 21 L.Ed.2d 131, reh. den. 393 U.S. 947, 89 S.Ct. 304, 21 L.Ed.2d 287; People v. Smith, 68 Mich.App. 527, 243 N.W.2d 677; State v. Alston, 27 N.C.App. 11, 217 S.E.2d 207; Lloyd v. State, Fla.App., 218 So.2d 490; Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291; State v. White, Me., 285 A.2d 832; Commonwealth v. Sullivan, 354 Mass. 598, 239 N.E.2d 5, cert. den. 393 U.S. 1056, 89 S.Ct. 697, 21 L.Ed.2d 698; State v. Kennedy, 189 Neb. 423, 203 N.W.2d 106; State v. Garcia, 84 N.M. 519, 505 P.2d 862; and State v. Marmon, N.D., 154 N.W.2d 55. Such authority weighs even more heavily here where the instruction now objected to is the exact one proposed by defendant.

An appellant cannot complain of an error which he himself invites. It was said in State v. Shon, 47 Haw. 158, 178, 385 P.2d 830, 841:

'. . . A party may not complain on appeal of error in instructions to the jury which he has invited or agreed to. . . .'

It was said in Tamplin v. State, 235 Ga. 20, 25, 218 S.E.2d 779, 783:

'A defendant is not permitted to obtain reversal based upon an instruction...

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