Dickey v. State

• Citation: 444 P.2d 373
• Decision Date: 20 August 1968
• Docket Number: No. 3613,3613
• Parties: B. J. DICKEY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: United States State Supreme Court of Wyoming

Page 373

444 P.2d 373

B. J. DICKEY, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 3613.

Supreme Court of Wyoming.

Aug. 20, 1968.

Thomas J. Fagan, James E. Sinon, of Fagan, Fagan & Sinon, Casper, for appellant.

James E. Barrett, Atty. Gen., Lynn r. Garrett, Deputy Atty. Gen., Cheyenne, for

Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

B. J. Dickey was charged, tried and convicted of first degree murder in connection with the death of Grace MacManus. The jury specified the penalty should be without capital punishment and Dickey was sentenced to life imprisonment. His appeal assigns nine alleged errors in his trial.

1. Sufficiency of Evidence

Appellant's argument that the jury's verdict was not sustained by sufficient evidence is based upon the jury's failure to accept all of Dickey's testimony as to how Mrs. MacManus met her death. The defendant was the only eyewitness to the killing. His defense was that he accidentally killed decedent. Counsel argues that since defendant's credibility was not impeached and his testimony was not improbable and not inconsistent with facts shown, the jury was bound to accept his testimony and find for him on his defense of accidental killing. Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 226, is cited as authority for this contention.

The defect in appellant's argument is twofold: (1) His credibility was impeached and put in doubt by the evidence; and (2) the testimony of defendant was contradicted by evidence on behalf of the State, which the jury had a right to believe.

During trial the defendant admitted the story offered by him at trial was not the story he had given to law enforcement officers while they were investigating the death of Grace MacManus and that he had 'lied' to the investigating officers. Also, there was considerable evidence establishing facts which Dickey had consistently denied during the investigation of decedent's death, until confronted with irrefutable proof that such facts were true. Additionally, defendant admitted on the witness stand he at one time fabricated a kidnap story at Williston, North Dakota, by telling the F. B. I. he had been kidnapped, when in fact he had not. Dickey also was compelled to admit he sometimes falsified company expense accounts by listing persons supposedly taken to lunch, when he had not taken such persons to lunch.

Dickey related in his testimony that he had taken Mrs. MacManus to a secluded spot and had made advances toward her after which she suggested she might tell Dickey's wife and might call the police. The situation became such, according to Dickey, that Mrs. MacManus left the car and started walking in a snowstorm, leaving her coat in Dickey's car. Defendant claims he started after her; that visibility was impaired by the snowstorm; and that he accidentally struck and killed her with his automobile.

Dickey's testimony was that he put the body in the trunk of his car and drove around not knowing what to do; that he stopped at a filling station and had his car and a three-gallon can filled with gas; and that thereafter the body was taken into the country and burned with the gasoline from the can. The station attendant testified a lady was lying in the back seat of Dickey's car and that he saw scratches on her face, from which blood was oozing, and saw her breathe.

Aside from the conflict as to whether Mrs. MacManus, while Dickey was at the filling station, was dead and in the trunk or breathing and on the back seat, there were other conflicts in the evidence. For example, the attendant said Dickey asked for used oil and Dickey denied that. The attendant and another witness testified Dickey came into the station from the west, while defendant insisted he came from the east. Also, hair found on the back seat of defendant's car was shown to match the hair of decedent, and this tended to contradict defendant's story which indicated decedent was never in the back seat.

Concerning the possibility of Dickey's wife hearing about his involvement, Dickey stated, 'this was the least thing that I wanted to happen.' He also described how he had taken his companion by the wrists and said, 'We'll set here all night until you tell me you're not going to involve my wife in this.' As we read defendant's testimony, we can understand the jury may have believed he was considerably disturbed by the possibility of Mrs. MacManus telling his wife.

When we consider this situation, along with his actions in not taking Mrs. MacManus for medical examination and attention; his actions in burning her body; the fact that he supposedly was driving after Mrs. MacManus in a blinding snowstorm with knowledge she was ahead of him; and the extent of injuries inflicted upon decedent, we are compelled to say we do not consider his story so probable and likely that the jury could not disbelieve the part about the killing being accidental.

Medical testimony indicated decedent's body showed both collar bones were broken; the left arm bone was completely fractured below the shoulder joint; at least 13 ribs were severely fractured, with pieces broken off; both lungs were collapsed; and a femur bone was broken into a number of pieces, indicating it had been broken by a great deal of force. One of the doctors also explained that it would have taken a great deal of force to have broken the ribs as they were broken.

Dickey himself claims when his car was brought to a stop, decedent was lying behind the car. Even if the jury accepted defendant's story that Mrs. MacManus was run down by Dickey's automobile, there was ample evidence for it to believe the running down was deliberate and intentional.

2. Conduct of Counsel

Appellant claims certain conduct on the part of counsel for the State was improper and prejudicial. One such claim is that terms were used in the prosecution's opening statement which were not supported or justified by evidence in the case. The terms mentioned are 'inflicted serious injuries,' 'disgusting beyond belief,' 'inflicted more injuries either with a club or with a car,' 'for the purpose of putting her to death by flame,' and 'burning to conceal something more horrible than the fire.'

Inasmuch as defendant did not object at the time of trial to the prosecution's use of these terms, or ask the trial judge to instruct the jury concerning them, we need not consider the objection which is made for the first time on appeal. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 562; Valerio v. State, Wyo., 429 P.2d 317, 319.

We will add the comment, however, that we have carefully reviewed each expression complained of in the light of the actual evidence in the case, and it is our opinion such expressions were sufficiently supported by evidence and were not prejudicial. In any event, appellant has failed to show any of the terms questioned were used in bad faith, and prejudicial error in the area claimed will not be assumed in the absence of a showing of bad faith on the part of the prosecuting attorney. Johnson v. State, 29 Wyo. 121, 211 P. 484, 487; State v. Farley, 48 Wash.2d 11, 290 P.2d 987, 990, certiorari denied 352 U.S. 858, 77 S.Ct. 79, 1 L.ed.2d 65. As stated in the Farley case, the burden of showing bad faith is upon the appellant.

Another claim of misconduct is that the State, in its summation, argued on a Wyoming statute regarding the duty of a motorist to render aid, when no instruction had been given on the statute. Without referring to any particular law or statute, attorney for the State argued all of us know the driver of a vehicle involved in an accident resulting in injury to any person 'is required' to render that person aid.

The record reveals counsel for defendant afterwards objected to this statement on the part of the prosecution. Whereupon the judge, speaking of the statement, told the jury it had been instructed as to the applicable law in the case be the court; that any reference by counsel to any other law had no bearing upon the issues to be decided; and that the jury would, therefore, disregard entirely the prosecuting attorney's reference to driver's responsibility. Defendant's attorney then remarked, 'Thank you, Your Honor.'

Thus, it is apparent from the record that counsel at the time of trial was satisfied with the correction made. He indicated no further objection and asked for no further correction. He apparently was willing for the matter to go to the jury with the correction which the court made; and he cannot be heard to complain afterwards, if and when the verdict turns out not to be to his liking. Webber v. Farmer, Wyo., 410 P.2d 807, 809-810.

The next question raised concerning conduct of counsel is that the State's attorney referred to a knife which was not introduced in evidence and commented upon testimony suggesting knife wounds, which the court had ruled inadmissible.

Articles found with decedent's body, including a knife which defendant admitted was his, were shown to the jury, and testimony concerning the knife was given. Where there is testimony concerning an article such as a knife, we know of no rule which would prohibit an attorney from referring to such article, whether it is actually offered in evidence or not. No argument or citation on behalf of appellant supports the proposition that a mere reference to the knife by the State's attorney was improper. We will not say it was.

As to whether counsel for the prosecution commented upon testimony suggesting knife wounds, which the court had ruled inadmissible, the record does not support appellant's contention. The State sought to have a police officer give an expert opinion as to what he saw in a photograph. He referred to a mark on decedent's body and said it 'appears and has all the characteristics of a knife cut.' On objection of the defense, the answer was stricken, and the jury was instructed to disregard it.

The...