Deeter v. State
| Decision Date | 14 August 1972 |
| Docket Number | No. 4072,4072 |
| Citation | 500 P.2d 68 |
| Parties | Michael Wayne DEETER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Terry W. Mackey, Jackson, for appellant.
Clarence A. Brimmer, Atty. Gen., Cheyenne, Robert B. Ranck, County and Pros. Atty., Jackson, Bert T. Ahlstrom, Jr., Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
Michael Wayne Deeter, defendant, was charged with a violation of § 35-347.31(c), W.S.1957 (1971 Cum.Supp.) for knowingly or intentionally possessing controlled substances, namely marihuana and LSD. On trial by jury he was convicted and sentenced to a five-month term in the county jail and assessed a fine of $800. From the judgment and sentence he has appealed, contending error in the court's refusal to suppress evidence, prejudicial remarks of the court during the trial, improper remarks of the prosecuting attorney regarding defendant's failure to testify, the improper admission of certain exhibits, and the denial of his motion for acquittal at the close of the State's case.
The facts which led up to the arrest and prosecution were that John Blohm and Jeanne Anderson, shortly after 2 a. m., April 30, 1971, informed personnel in the sheriff's office that defendant had made certain threats against Mr. Blohm and a Mrs. McCormick. Officers went to the latter's apartment to investigate. When told of the threat against her, she conversed with the officers, and, inter alia, said that two days earlier Deeter had suggested to her that she give 'acid' to her three-year-old, and when she said 'no' put it down on the table in front of her child. At approximately 3 a. m. Deeter was arrested for breach of the peace, while standing outside of his 1970 International Scout at a public intersection in downtown Jackson. The arresting officer observed him to be under the influence of narcotics or dangerous drugs and searched his person but found no narcotics. 1 Deeter's vehicle was taken to a service station, and thereafter the sheriff's office obtained a search warrant for the vehicle, executed the same, and discovered suspect marihuana and LSD in the glove compartment, which substances were the subject of the prosecution.
Defendant criticizes the court for overruling his motion to suppress evidence, saying that the affidavit for the search warrant was insufficient to show probable cause, asserting that it was based on hearsay and failed to meet the test required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, which has two aspects: (1) whether the third party question. Defendant further complains that circumstances as to how the third party came by his information demonstrates sufficient probability or credibility to allow the search of the premises in 707, 78 A.L.R.2d 233, hearsay evidence is the affidavit contained conclusions. We think the criticisms are unwarranted. It is conceded that under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 707, 78 A.L.R.2d 233, hearsay evidence is sufficient if the informant's statement is reasonably corroborated by other matters within the officer's knowledge. In Aguilar v. Texas, supra, 378 U.S. at 114, 84 S.Ct. at 1514, 12 L.Ed.2d at 729, the court said:
'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, * * * was 'credible' or his information 'reliable.' * * *'
Reviewing the affidavit here we find a recitation of the circumstances, exclusive of conclusions, that the defendant had threatened to place 'acid' (LSD) in the soup of Mrs. McCormick's young children and that Stephanie Forgue who had met Deeter at Alta, Wyoming, had told of defendant's having thought it 'fun' to go around dropping 'acid' (LSD) in drinks and watching people 'freak out.' The affidavit also set out the fact that the defendant, when arrested for breach of the peace, appeared to be under the influence of narcotics or dangerous drugs, was searched without finding them, and accordingly it was believed that the narcotics or dangerous drugs were concealed in his vehicle, which reportedly Deeter was using as the place of his abode while in Jackson.
Bearing in mind that affidavits of probable cause for search are to be tested by much less rigorous standards than those governing admissibility of evidence at the trial and issuing magistrates are not to be confined by niggardly limitations, Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637, we consider the affidavit to be within the requirements of Aguilar. 2
Defendant charges that the court during the course of the proceedings made numerous remarks which denied him a fair trial. We have reviewed the record carefully and find nothing which can be said to have interfered in any way with the proper administration of justice. Instead, all statements made by the court seem to reflect a complete lack of bias or prejudice and a sincere attempt to have the jury resolve the cause without undue interference. Defendant himself concedes that some of the remarks by the judge were harmless but argues that when taken as a whole 'the substantial time given to remarks by the Court * * * can only cause the jury to believe that the Court has an * * * interest in a successful prosecution to the prejudice of the Defendant.' Notwithstanding our view that there was no impropriety in this regard it must be admitted that the trial court in this case at different points did not limit its remarks to the bare essentials of rulings but instead made gratuitous comments which, as experience shows, often opens the door to complaints and criticism both justified and unjustified. Even so, the mere fact that the court may have been unwise in commenting overgenerously cannot be taken as error.
Notwithstanding his failure to object during the closing remarks of the prosecutor, defendant now urges that this court should, under the provisions of Rule 49(b), W.R.Cr.P., denominate the prosecutor's remarks as error because they affected substantial rights. The nub of the challenge is an accusation of the prosecutor's having surreptitiously called the jury's attention to the fact that defendant had failed to testify. We think any such claimed encroachment on the permissible...
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Hennigan v. State
...is not distinguishable, and we may assume that such authority does not exist. Taylor v. State, Wyo., 658 P.2d 1297 (1983); Deeter v. State, Wyo., 500 P.2d 68 (1972). Given the essentially philosophic, rather than legal, debate still we shall address in detail Hennigan's claims of In doing s......
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Stuebgen v. State, 4325
...of defendant and his wife, there can be no presumption of law on intent. State v. Parmely, supra.' (Emphasis added) In Deeter v. State, 500 P.2d 68, 71 (Wyo.1972) this court recognized that intent may be inferred from the conduct of a defendant and from circumstantial evidence upon which re......
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Goettl v. State, 90-284
...had never accepted the "technical and rigid requirements * * * " of the Aguilar- Spinelli test. Id. at 1293. But see Deeter v. State, 500 P.2d 68, 69 (Wyo.1972). The consistent view by this court of Wyo. Const. art. 1, § 4 is that the section requires a judicial finding supported by a writt......
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McCutcheon v. State
...Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (a holding that we recognized and adopted in Deeter v. State, Wyo., 500 P.2d 68 (1972)). He argues that, in this case, there was no such credibility showing. The argument ". . . This (credibility) basis can be establis......