Haselhuhn v. State

• Decision Date: 31 October 1986
• Docket Number: No. 85-268,85-268
• Citation: 727 P.2d 280
• Parties: Darwin HASELHUHN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 280

727 P.2d 280

Darwin HASELHUHN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-268.

Supreme Court of Wyoming.

Oct. 31, 1986.

Leonard D. Munker, State Public Defender, Martin J. McClain, Deputy State Public Defender, and Julie Naylor, Appellate Counsel, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., and John W. Renneisen, Sr. Asst. Atty. Gen., for appellee (plaintiff).

Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Chief Justice.

In this appeal, which is taken from a conviction of aggravated robbery, in violation of § 6-2-401(c)(ii), W.S.1977 (June 1983 Replacement), Darwin Haselhuhn asserts a series of errors relating to his trial. The issues to be addressed include a claim that a witness should not have been permitted to testify because he had been hypnotized; error for failing to grant a continuance in order to obtain expert testimony relating to hypnosis; the failure of the prosecution to make available evidence perceived to be of assistance to the defendant; error in introducing the results of a polygraph examination relating to a third person; improper argument in the form of testimony by the prosecutor; and a claim of a denial of the right of confrontation because a codefendant, at the time the oath was administered to witnesses, asserted that he would rely upon his Fifth Amendment right and refuse to testify. It is our conclusion that no reversible error is found in any of the matters asserted by Haselhuhn, and the judgment and sentence entered in the district court is affirmed.

On April 21, 1984, the Safeway Store in Green River, Wyoming was robbed by two male individuals, one armed with what appeared to be a sawed-off shotgun and the other armed with a knife. Thereafter a criminal complaint was filed in the county court charging the appellant with armed robbery. After a preliminary hearing, the appellant was bound over to the district court for further proceedings. An information charging the identical offense as that charged in the complaint subsequently was filed in the district court, and appellant pleaded not guilty when arraigned upon that information. The case was tried to a jury, and it returned a verdict finding Haselhuhn guilty of aggravated robbery. Haselhuhn was sentenced to a term of not less than eight years nor more than twelve years in the Wyoming State Penitentiary. It is from this judgment and sentence that Haselhuhn appeals.

In his brief in this court Haselhuhn presents a statement of the issues by listing six arguments as follows:

"I. Whether Appellant was denied his due process rights to notice and the opportunity to be heard because the trial court denied his motion for a continuance.

"II. Whether hypnotically enhanced recollections should be admissible and whether it is the State's burden to establish at a hearing out of the jury's presence that any hypnosis done by the State did not alter the witness' recall in any fashion.

"III. Whether the prosecution failed to abide by its constitutional obligation 'to assist the defense in making its case' and whether a reversal is mandated because the evidence the prosecution did not disclose was material to a just resolution of the facts.

"IV. Whether the prosecutor improperly used closing argument to testify to the jury that neither he nor Officer Jaramillo had hidden anything from the defense.

"V. Whether it was plain error for the prosecution to introduce the results of a polygraph exam.

"VI. Whether Appellant was denied his right to due process by the presentation to the jury of his co-defendant's invocation of the Fifth Amendment."

The statement of the issues by the State of Wyoming is:

"I. The denial of Appellant's motion for a continuance was proper and did not result in abridgement of his due process rights.

"II. The State did not offer hypnotically-enhanced testimony. Appellant had adequate notice and opportunity to impeach the testimony of the witnesses who were hypnotized.

"III. The Prosecution did not withhold from Appellant any material that can be considered Brady material.

"IV. The Prosecutor's rebuttal argument was a fair response to the Appellant's assertions that he was denied access to exculpatory information, and was in any event harmless.

"V. No reversible error resulted from the mention of a polygraph exam.

"VI. There was no reversible error committed when the Appellant's accomplice said he would take the Fifth Amendment if called to testify."

While some additional detail will be alluded to in connection with the disposition of the several issues in this case, the significant facts begin in the evening hours of April 21, 1984. Prior to closing time for the Safeway Store, three employees saw Haselhuhn enter the store. He was known to the store employees because he was a member of the crew employed by the contractor who maintained the floors in the store. None of the employees saw Haselhuhn leave. Haselhuhn admitted that he was present in the store the night of the robbery but asserted that he was there in connection with his work on the maintenance crew. Haselhuhn's co-defendant also was observed in the store prior to closing time, and, as with Haselhuhn, no one saw him leave. Haselhuhn admitted that he spent the evening with his co-defendant, but, of course, denied participation in the robbery. Not long after the store was closed at 10:00 P.M., the assistant store manager and a store clerk were balancing the books and working on the cash accounting in a cage which was locked most of the time. They observed two men, one wearing a ski mask and the other a Halloween mask, approaching the cage from the rear of the store. One of the men was armed with what appeared to be a sawed-off shotgun and the other with a knife. When the men reached the cage, they demanded the store money from the assistant store manager and the clerk.

Then they took the two victims to the rear of the store, bound them with duct tape, and left through a delivery door which could be opened only from the inside. It was necessary for them to take a key from the clerk in order to open the delivery door. Soon after the robbers left, the store employees managed to free themselves and summoned the police. When the police arrived, the assistant store manager and the clerk gave statements as to what had occurred. The assistant store manager advised the police officers that he was able to peek under the duct tape which the robbers had placed over his eyes and see one of them who had removed his ski mask. The store manager was able to furnish a physical description of the robber, describe the robber's clothing, and advise the officers that he recognized the robber as one of the cleaning men but that he could not remember the man's name. Later when the assistant store manager was shown a xeroxed array of photographs, he indicated that the photograph of the appellant might be the robber but pointed out that the hair was styled differently. The store clerk who had been a victim identified the photograph in the array as that of Haselhuhn, but she had not seen the robber without his mask. The store clerk, however, did furnish a description of the clothes, masks and weapons. Both the assistant manager and the clerk identified the voice of the co-defendant from a taped voice array.

Some time later, both the assistant manager and the clerk were interviewed under hypnosis by a non-professional with meager training in hypnotic techniques. This interview occurred prior to the preliminary hearing. At the preliminary hearing, the assistant store manager positively identified Haselhuhn as the robber he had seen. He even explained that he had removed his glasses to make the circumstances as similar as possible to the situation in the store at the time of the robbery, and he testified that he knew for sure that Haselhuhn was the robber. In his testimony at the trial the assistant manager again identified Haselhuhn as the robber.

Other testimony at the trial was introduced from three witnesses who testified that Haselhuhn had made statements to them which connected him with the robbery. A different witness testified that Haselhuhn and the co-defendant had visited him at his home on the night of the robbery. He stated that he did not know precisely what time they were at his home and conceded that they may have been there during the time that the robbery occurred or they may not have been there at that time.

As part of his trial strategy, Haselhuhn endeavored to focus suspicion upon a third party who was connected to a sawed-off shotgun that had been retrieved from the Black's Fork River. In the course of examination concerning this shotgun, counsel for Haselhuhn asked one of the police officers what follow up had been accomplished with respect to the ownership of that shotgun and the reason for its presence in the river. The police officer testified that another detective had interviewed the third person and secured a polygraph examination of the third person. Thereafter the prosecution pinpointed the result of the polygraph examination which was exculpatory with respect to the robbery so far as the third person was concerned.

In his rebuttal argument the prosecuting attorney felt compelled to deny closing argument by counsel for Haselhuhn that evidence had not been made available to Haselhuhn. When objection was made the district judge permitted the prosecutor to proceed with his argument.

The co-defendant was subpoenaed as a witness at Haselhuhn's trial although he never was called to testify. In accordance with the practice of the court, all witnesses were sworn at once prior to the trial. At that time, it was observed that the co-defendant had not been sworn, and the district judge directed that the oath be administered to him. The co-defendant, however, then advised the court that he would rely upon his...