Dryden v. State, 4438

• Decision Date: 09 May 1975
• Docket Number: No. 4438,4438
• Citation: 535 P.2d 483
• Parties: Gerald Dale DRYDEN, a/k/a Gerald Dryden, a/k/a Jerry Dryden, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 483

535 P.2d 483

Gerald Dale DRYDEN, a/k/a Gerald Dryden, a/k/a Jerry Dryden, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4438.

Supreme Court of Wyoming.

May 9, 1975.

Richard D. Gist, Meier & Gist, Lander, for appellant.

David B. Kennedy, Atty. Gen., and Timothy J. Judson, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK and THOMAS, JJ.

McCLINTOCK, Justice.

Gerald Dale Dryden ¹ appeals his conviction of second degree murder in the district court of Fremont County, Wyoming, complaining of the admission in evidence of certain statements made by him after his arrest without proper advice as to his right to an attorney and, furthermore, after he had requested counsel. Under the disposition we make of the case other errors assigned need not be discussed. The following facts may be said to have been established without contradiction and without resort to any statements or testimony of the defendant:

At approximately 5:45 p. m., January 17, 1974 the defendant, in a drunken condition and carrying a can of beer in his hand, entered unit number 6 of a motel in Jeffrey City, Wyoming and told the occupants thereof, Kenneth Hitshew and Gloria Bills, either that 'Audrey is dead,' or, 'Audrey is laying in the bathroom dead.' ² Investigation was made by these persons and a representative of the motel owner, and the nude and badly beaten body of Audrey Wolfe, who for some two weeks had been occupying unit number 2 of the motel with defendant, was discovered. The room was then locked and the county authorities notified. Defendant was taken into custody by the deputy sheriff at about 8:30 or 9:00 p. m., and his prosecution for second degree murder followed, leading to the conviction now appealed.

As established by evidence as to which there is no dispute, defendant and Audrey were seen in bars and other places in Jeffrey City during the day of January 17, consuming substantial amounts of beer and whiskey. Some time during the day they became separated and defendant was driven to the motel room by a lady who testified that she had one drink with him and then left. At about 3:00 in the afternoon Steven Lamason, a member of the drilling crew to which defendant had been attached until the 15th of January-on which day defendant had been fired by the driller, Hitshew-went to defendant's room, unit 2 of the motel. At that time defendant had apparently been in bed, with no clothing on, and after admitting Lamason he returned to bed. Lamason testified that he was in the room for some 20 minutes, Fixing the time of his visit by reference to a television show then in progress on defendant's set. During this time defendant appeared quite drunken, and Lamason cautioned him about a cigarette which he had lit after Lamason came into the room. After drinking at least part of a beer, Lamason left the room shortly before 3:30 p. m. At this time defendant appeared to be either asleep or 'passed out.'

In the meantime Audrey had been seen at various places, including the Split Rock Bar, and she was described as being fairly intoxicated. The bartender enlisted the aid of one Marvin Eidem to take her to her motel, which he did in a matter of minutes, let her out of the car, saw her enter a unit, the number of which he did not know at the time but later checked on and determined was unit 2, and returned to the bar. This witness did not look at her closely but noticed no injuries. There is no evidence as to where she was from that time until her body was found in the bathroom of motel unit 2 occupied by her and the defendant, shortly after 5:45 p. m.

There is no evidence fixing the time of the death even approximately, but a qualified pathologist, after testifying concerning extensive injuries, expressed the opinion that her death resulted 'from intercranial hemorrhage as a result of the beating of the head and neck.' He was clearly of the opinion that the beating was the result of an attack rather than of a fall.

Clothing of Mrs. Wolfe was found in the living portion of the room in such position as to indicate that she had proceeded from that room into the bathroom taking off clothing as she proceeded, and her position in the bathroom was such as to indicate to the pathologist that she had collapsed after entering the bathroom.

There is no evidence as to defendant's whereabouts between the time that Lamason left the room and the time that defendant entered the Hitshew room, at about 5:45 p. m., other than statements he made to the sheriff of Fremont County and later to the Fremont County attorney in the presence of this same sheriff and testified to by the sheriff. Defendant's person at the time he came into the Hitshew room and thereafter was described as very clean, particularly his hands, even though he had for some time been working as roughneck on a drilling crew. There is no evidence indicating that he had taken a bath prior to coming to the Hitshew room and the condition of the bathtub and lavatory, when examined by the investigating officers, tends to exclude such possibility. Examination of fingernail and cuticle cuttings from the defendant disclosed nothing of evidentiary value.

The materiality and importance of defendant's statements to the authorities appear to be conceded by the State in its brief, where the following reference is made to an interrogation of defendant by the county attorney, in the presence of the county sheriff, held on January 22, 1974, prior to the first appearance of the defendant before a commissioner:

'At this time, the Appellant acknowledged that he never left unit 2 of the Coates Motel from the time Steven Lamason dropped by, until the dead body of Audrey Wolfe was discovered. * * * This statement placed him in the room from the time Mr. Eidem saw Audrey Wolfe enter it, until the time she was discovered dead. In other words, the Appellant was in the room when the murder took place at the time the murder took place.'

Defendant's first point on this appeal relates to custodial interrogation of the defendant by county authorities prior to delayed presentation of his case to a justice of the peace. Defendant contens that he was not properly advised of his rights to consult or have an attorney with him prior to and during the period of interrogation; that he did not waive his rights to an attorney but instead, on numerous occasions, indicated he desired an attorney which the State failed to procure, and that statements improperly procured were permitted in evidence in violation of his rights under § 10 and 11 of Art. 1 of the Wyoming Constitution and the fourth, fifth, sixth, and fourteenth amendments to the Constitution of the United States and in violation of the principles announced by the Supreme Court of the United States in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

A motion to suppress these statements was filed in the district court and a hearing thereon was held March 21, 1974 before a judge who did not preside at the trial, following which hearing the motion was denied. ³ Accepting that order as the final action of the court, there was no retrial of the suppression issue upon the trial of the case, all parties by their conduct indicating that the objection to admissibility of the statements had been properly saved. ⁴ The sheriff was permitted to testify both as to the conversation between him and the defendant on January 19 and a conversation between defendant and the county attorney, witnessed by the sheriff on January 22. Shortly after completion of this conversation the defendant was taken before a justice of the peace and formal charges filed. At this time defendant was judicially advised of his right to counsel and an attorney was thereafter appointed for him who continued to represent him throughout the preliminary hearing, the trial, and this appeal.

The folowing re sume of events following defendant's arrest is essentially as contained in appellant's brief, is not disputed by the State, and our own independent examination of the record convinces us it is substantially correct. These facts were developed at the hearing on motion to suppress. Following his arrest and while being put in the sheriff's vehicle, Deputy Sheriff Earl Osborn 'advised defendant of his rights' ⁵ but took no action to determine if he understood the rights or wanted to exercise the rights. Later, while traveling from Jeffrey City to Lander, Deputy Sheriff Osborn again started to 'advise appellant of his rights,' at which time appellant stated, 'I know my rights, I will get a lawyer when I get into town.' Upon his return to the jail the deputy informed his superior of this conversation.

Notwithstanding this information, the first interrogation of appellant occurred at approximately 11:00 p. m., January 17, 1974, in the Fremont County sheriff's office in Lander. At the suppression hearing C. A. McDougall, Fremont County sheriff, testified that he informed appellant that 'You don't have to talk,' or 'You don't have to tell me anything.' Anything that you say can and will be used against you in a court of law.' 'If you wish an attorney, you can have one. If you can't afford one, the court will appoint one for you.' Sheriff McDougall then testified, 'I asked him if he was willing, if he wanted to tell me what happened out there.'

The sheriff did not advise defendant that he could have an attorney present before being questioned or during the questioning. Although defendant was said to have stated he understood his rights, the sheriff did not ask him if he wanted an attorney. Neither did he tell him of his right to stop the statement at any time and that the sheriff would desist if this were suggested. Following this conversation the sheriff proceeded to question the defendant. The record of the hearing on the motion to suppress does not set forth what statement was made by the defendant on the night of the...