Dobbins v. State

• Decision Date: 19 March 1971
• Docket Number: No. 3836,3836
• Citation: 483 P.2d 255
• Parties: Frank DOBBINS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 255

483 P.2d 255

Frank DOBBINS, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 3836.

Supreme Court of Wyoming.

March 19, 1971.

Thomas J. Fagan, of Fagan & Fagan, Casper, for appellant.

James E. Barrett, Atty. Gen., Hugh B. McFadden, Jr., William L. Kallal, Asst. Attys. Gen., Cheyenne, for appellee.

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

Mr. Justice GRAY delivered the opinion of the court.

The defendant, Frank Dobbins, in two informations was charged with the possession and sale of marijuana to a minor contrary to the provisions of §§ 35-350 and 35-369, W.S.1957. The overt act charged in the first information occurred on May 9, 1969, and on February 11, 1969 in the second information, and two different purchases were involved. On motion by the State the trial court, pursuant to Rule 12, W.R.Cr.P., and over the objections of the defendant, consolidated the informations for trial which resulted in a verdict by a jury finding defendant guilty as charged on the first information and not guilty on the second. Judgment was entered accordingly and defendant was sentenced to a term in the penitentiary of not less than two and not more than three years.

On this appeal the defendant contends that the court erred in entering its order of consolidation; in permitting testimony introduced by the State and received over defendant's objection of a claimed privileged communication between the defendant and his attorney; in refusing to grant a continuance or a mistrial because of prejudicial newspaper publicity; in overruling defendant's objections to evidence offered by the State tending to show defendant guilty of offenses not charged in the informations; in overruling objections to certain instructions by the court to the jury and refusing to grant certain instructions offered by defendant; and contends that the verdict of the jury was not sustained by sufficient evidence.

CONSOLIDATION

The defendant in support of his objections to the State's motion for consolidation asserted among other things that the overt acts charged in the informations were separate and distinct transactions with no related circumstances; that the principal witnesses of the State in the two cases would not be the same; that a confusing situation would be created whereby the jury might cumulate the evidence relating to both transactions; and that an unfair burden would be placed on defendant for counsel to prepare for and defend two separate cases at the same time. Following entry of the order defendant filed a motion seeking reconsideration, and in addition to the foregoing asserted that the order placed defendant in a position whereby he would be unable to testify on his own behalf concerning one of the offenses without waiver of his right not to do so with respect to the other offense.

The Rules of Criminal Procedure or portions thereof pertinent are as follows:

Rule 12

'The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information.'

Rule 11(a)

'Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting part of a common scheme or plan.'

Rule 13

'If it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. * * *'

In considering the points raised here perhaps it should first be noted that the foregoing rules were taken from Rules 8(a), 13, and 14, Fed.Rules Cr.Proc. Consequently precedent emanating from the Federal courts on such matters must be given great weight on the question before us.

Keeping in mind that the defendant's objections here were not renewed at the trial, our initial concern is whether or not the offenses charged in the two informations are of the 'same or similar character,' as Rule 11(a) provides, and 'grew out of a common plan of operation.' Roth v. United States, 10 Cir., 339 F.2d 863, 865. While it is true that the two overt acts charged occurred at different times, it is clear that the charges fell into this category. In United States v. Rivera, 2 Cir., 348 F.2d 148, the defendant there was charged with the sale of narcotics on different dates in three different indictments. In ruling upon the contention of the defendant that the trial court erred in an order consolidating the indictments for trial and thus abused its discretion, the court stated, 348 F.2d at 150:

'* * * The offenses charged are of the same or similar character, narcotic transactions closely related in time, place and manner of execution, so that they properly could have been joined in one indictment in separate counts. * * *'

In our view the rationale there is applicable here. Other Federal authorities to the same effect are Smith v. United States, 5 Cir., 357 F.2d 486, 489; Williamson v. United States, 9 Cir., 310 F.2d 192; and Brandenburg v. Steele, 8 Cir., 177 F.2d 279.

In passing upon this question we recognize, as other courts have recognized, as a general proposition that there is always a possibility of prejudice resulting Our next concern is whether or not the defendant, as asserted, was prejudiced as a result of the joint trial. As a general proposition it is well established that the grant or denial of severance is a matter of discretion with the trial court and will not be reversed except for clear abuse of such discretion. Gornick v. United States, 10 Cir., 320 F.2d 325, 326; Walton v. United States, 10 Cir., 334 F.2d 343, 347, certiorari denied Comley v. United States, 379 U.S. 991, 85 S.Ct. 706, 13 L.Ed.2d 612, and Chow v. United States, 379 U.S. 991, 85 S.Ct. 707, 13 L.Ed.2d 612; Sullins v. United States, 10 Cir., 389 F.2d 985, 989. The same rule has been applied where separate indictments or informations have been consolidated for trial. United States v. Rivera, supra. It is also the rule that on a motion for severance the burden is on the movant to present facts demonstrating that prejudice will result from a joint trial, which in effect would be a denial of a fair trial. United States v. Wolfson, S.D.N.Y., 289 F.Supp. 903, 908; United States v. Steel, S.D.N.Y., 38 F.R.D. 421, 423. While the attack of the defendant here was by way of resistance to the pretrial motion of the State for consolidation rather than a motion for severance, and while no authority has come to our attention holding directly on the point, it would appear by analogy that once the State on its motion makes a prima facie case warranting consolidation of the separate informations it is incumbent upon the defendant to come forward with facts and circumstances establishing wherein he will be prejudiced by a joint trial. We hold that the defendant has not met that burden.

from a joinder of similar offenses and care must be taken at the initial stage of the proceedings to guard against such a possibility. In doing so one of the prime considerations is whether or not evidence relating to the similar offenses charged would be admissible in the separate trial of each offense. Smith v. United States, supra. Undoubtedly, the trial court had this in mind at the time of his ruling and on the basis of what was said in State v. Lindsay, 77 Wyo. 410, 317 P.2d 506, 510, concerning the admissibility of evidence relating to other crimes when such evidence 'tends to show a plan, scheme, system, or course of conduct,' the trial court was warranted in concluding that prejudice would not result.

In the first instance the issues and the proof on each charge were relatively simple and not complex. Although defendant lays much stress upon the fact that the principal witnesses of the State in proof of the charges were not the same, we fail to see where that was of great significance under the rule. Such testimony was clear and explicit as to each offense and the trial court very carefully instructed the jury that it should deliberate upon and decide each of the State's charges separately and independently from the other and under no circumstances was it to consider the facts and evidence relating to one of the charges in determining the guilt or innocence of the defendant on the other. It is presumed, of course, that the jury followed these instructions, and as we view it that presumption is strengthened by the jury's action in acquitting defendant of the charges contained in the second information. As pointed out in Tillman v. United States, 5 Cir., 406 F.2d 930, 936, vacated in part and remanded for further proceedings on other grounds 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742, a reviewing court will invariably draw an inference from such circumstance that the jury did not cumulate the evidence pertaining to each charge. In addition it is the rule in the Circuit Court of Appeals, Tenth Circuit, at least, that ordinarily an acquittal on a misjoined count cures the misjoinder. Gornick v. United States, supra.

Likewise we find no merit in defendant's contention with respect to deprivation of his right to testify concerning one of the charges without waiving his right not to do so with respect to the other charge. This, of course, presents a rather serious question but we are of the view Concerning defendant's claim that the consolidation of the informations would place an unfair burden upon the defendant and counsel in preparation for trial, it appears here again that the apprehensions of counsel did not materialize. Our review of the record...