Hamill v. State
| Citation | 602 P.2d 1212 |
| Decision Date | 16 November 1979 |
| Docket Number | No. 5135,5135 |
| Parties | Anthony Richard HAMILL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Richard H. Honaker, Wyoming Public Defender Program, Cheyenne, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Berry F. Laws, III, (argued) Legal Intern, for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Two questions are presented in this appeal. First, may a defendant, who in the course of a fairly continuous and protracted transaction during which he committed several clearly defined acts of sexual assault, be charged with, tried for, and convicted of multiple counts of sexual assault; or is the State required to elect one act of sexual assault in such a trial? The second issue, which is unrelated to the first, inquires whether a doctor-witness' unsolicited and unresponsive answer to a question asked by the prosecutor in which the doctor said the victim of the crime "* * * was the victim of a physical attack and probably even attempted murder," was so prejudicial as to require the granting of a motion for mistrial.
The district court judge instructed the jury that the defendant was charged with three counts of first degree sexual assault 1 and three special verdict forms permitted the jury to find the defendant either not guilty, guilty of attempted first degree sexual assault, or guilty of first degree sexual assault. The jury found the defendant guilty of first degree sexual assault in each instance. 2 The district court refused to grant defendant's motion for a mistrial because of the doctor's testimony.
We will affirm.
On December 11, 1977, the date the crimes here in question were committed, the defendant-appellant, Anthony Richard Hamill, was a paying guest at the Ramada Inn in Gillette, Campbell County. The victim of these crimes was the night clerk at the motel. She had first met the appellant on the preceding night when he registered as a guest. The victim talked with the appellant that first night and he told her quite a bit about himself. The victim testified that it was not uncommon for her to become acquainted and converse with the guests who populated the motel because many were workers who resided there for long periods of time. The victim began her workshift at 11:00 p. m. on December 10, 1977. About midnight, the appellant came to the registration desk and asked for change for a five dollar bill, which the victim provided to him. A little later, the appellant returned to the registration desk and asked for another key to his room because he had locked himself out. The victim provided him with a key. 3 The victim then testified that appellant again returned to the registration desk area at about 2:45 a. m. on December 11, 1977. She was sitting alone at her desk drinking a Coke and reading when she looked up and saw him. The appellant asked for yet another key to his room because he had again locked himself out. No other key was available and the victim could not locate the passkey. Appellant asked if people were ever permitted to sleep in the lobby and the victim indicated that it was all right if he wanted to sleep on the couch.
Because the appellant had a smell of liquor on him, the victim suggested perhaps he would like a cup of coffee. Appellant told her there wasn't much coffee left and would she mind making more. At first the victim was going to wait until the appellant left before making the coffee, but she decided she was being foolish, so she took the pot and walked to a small utility room behind the registration desk to get water. The appellant followed her. As the victim began drawing the water, she glanced over her shoulder and observed that the appellant was wrapping a white silky cloth 4 around his fist. The next thing she knew he had that cloth around her neck and was strangling her. She dropped the coffee pot and clutched at the cloth around her neck. There was a period of struggle and the next thing the victim remembered was that she was lying on the floor and the appellant had an orange-colored broom handle 5 pressed against her throat. The victim testified that throughout the period of time during which the attack took place, she was in fear for her life. She told the jury that when she came to on the floor she was in something of a fog and that it was hard for her to speak because of the pressure of the broom handle on her throat. She stated that she asked the appellant, "* * * Why are you doing this to me, I haven't done anything to you, * * *" and that the appellant responded, After a further exchange during which the victim apologized if she had done something to him and pleaded for him to stop, she testified:
"* * * he told me just to not to talk any more, that he had me in a position to kill me if I was going to give him any trouble."
The victim testified that she persuaded the appellant to desist from pressing the broom against her throat by telling him she would not scream or call for the police. When he did release the pressure on her throat, the victim noticed that her pants and underwear were pulled down around her ankles and that her turtleneck and bra were pushed up around her neck so that her body was totally exposed. The victim related that the appellant did not disrobe but rather had the coveralls he was wearing unzipped. He did not remove either the coveralls or his underwear 6 during the episode. Without going into unnecessary detail, the victim then related that the appellant committed upon her a series of sexual assaults: (1) He placed his fingers in her vagina and commanded her to recite names describing her genitalia; (2) He attempted to place his penis in her vagina but failed; (3) He succeeded in placing his penis in her rectum but stopped when she complained that it hurt; (4) He again attempted and succeeded in placing his penis in her vagina for a while. Because this did not seem to work, he commanded the victim to get down on her knees; and, when she refused, (5) he stuck his finger into her vagina, wiped it on his penis, and told her she had no choice and that he'd kill her if she did not do what he said. The victim then got down on her knees and the appellant (6) forcibly inserted his penis in the victim's mouth. Because this did not seem to work, the appellant laid down on the floor and commanded the victim to again (7) take his penis into her mouth, which she did. The appellant had ordered the victim to so situate herself so that at the same time he (8) inserted his tongue into her vagina.
When someone began pounding on the registration desk, the appellant allowed the victim to put on her clothes. The pounding ceased and shortly after the phone began to ring. The appellant allowed the victim to answer the phone although he accompanied her and held on to her arm while she talked on the phone. The appellant took the victim back into the utility room and asked her for her underwear which she took off and gave to him. 7 The appellant and the victim then returned to the registration desk area and he continued to converse with her for a period of time. An alarm went off during this conversation which told the victim she had to make a wake-up call. After the victim made the call, the appellant told her to put her hands up on the registration counter. The appellant then sat down on the floor, pulled down the victim's pants and again (9) inserted his tongue into her vagina. After this the appellant again sat down with the victim. She related their conversation:
"* * * he asked me what I was going to tell my husband about the way my neck looked. I didn't really know how my neck looked, ( 8 and I said, "Well, I don't know what I'm going to tell him,' I says, 'but when he finds out he's going to be after you.' And he said, 'I've seen your husband and he doesn't look too big and too tough, and if anybody comes to my door I've got a .357 and I'll just blow the door down.' * * *"
The phone rang again and the victim went to answer it. The appellant again followed her and again made her put her arms on the registration desk, again pulled down her pants and (10) inserted his tongue into her vagina. 9 The appellant desisted when someone walked into the registration desk area. The appellant stayed a while longer and talked with the victim. Somewhere in the neighborhood of 7:00 a. m. on December 11, 1977, the appellant left.
It is unnecessary for us to further recite the testimony and evidence that was made a part of the record in this case. The facts recited above are based upon the testimony of the victim given at the trial and we have footnoted some of the corroborating physical and circumstantial evidence. The appellant did not testify and he does not challenge his conviction except to raise two issues:
Appellant formulates his first argument, asserting that he was deprived of his liberty without due process of law and was subjected to double jeopardy because he was tried on four charges and convicted of three charges which arose from a single criminal transaction.
The appellant was charged under Wyoming's new sexual assault statute. Sexual assault in the first degree, in...
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