Heberling v. State
| Decision Date | 09 March 1973 |
| Docket Number | No. 4135,4135 |
| Citation | 507 P.2d 1 |
| Parties | Dale Lee HEBERLING, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Richard S. Dumbrill, Newcastle, for appellant.
Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Sp. Asst. Atty. Gen., Cheyenne, Thomas L. Whitley, County and Pros. Atty., Newcastle, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
The defendant was charged with the felonious crime of burglary in violation of § 6-129, W.S.1957. The jury returned its verdict in which it found him guilty as charged. The district court entered judgment and sentence in which the defendant was sentenced to the Wyoming State Penitentiary for a term of not less than one year and not more than two years, and, in addition, pay a fine of $250, which sentence to the penitentiary was suspended upon certain conditions and he was placed on probation. The defendant appealed from the judgment and sentence.
The burglary was alleged to have taken place in the early morning hours of February 5, 1972, and consisted of unlawfully, willfully and feloniously entering into a building belonging to Leonard Shuck, located one mile west of Newcastle in Weston County, Wyoming, without the consent of any person in lawful possession thereof, with intent to steal and commit a felony. The defendant was arrested and taken before a justice of the peace on March 13, 1972. He requested that an attorney be appointed to represent him, and Richard S. Dumbrill was so appointed. The preliminary hearing was had on March 20, 1972, and, as a result thereof, the defendant was bound over to the district court. Trial by jury was had on April 13, 1972, which resulted in the verdict and subsequent sentence. The defendant listed six points upon which he relied for reversal. Each of his points will be separately discussed, together with the detailed facts surrounding each contention.
On March 9, 197i, the State's principal witness, Stanley Wooten, pleaded guilty to the same crime of burglary as charged to the defendant. At the time of the crime Wooten was 30 years of age and had known the defendant for about four years. They were close acquaintances, spent a great deal of time together, and saw each other almost every day. As one of the witnesses put it, '* * * every time I saw one the other was with him.' Wooten picked the defendant up about 7 p. m. on the evening before the burglary, which occurred in the early hours of the following morning. They were together until at least 2:30 a. m. Around 9 p. m. they stopped at the Sioux Cafe and Service Station where Wooten borrowed a pair of pliers from the station attendant. Wooten testified that he and the defendant used the pliers to gain entrance to the building where the burglary occurred and to remove certain gauges from welding equipment. The defendant acknowledged he was with Wooten when he borrowed the pliers but testified that Wooten told him he needed the pliers to repair some plumbing. According to the defendant he did not go to the place of the burglary, and between 2 and 3 a. m. he and Wooten went to the defendant's wife's home where he went to bed and slept until 11:30 a. m. He testified that Wooten slept on the couch. It was apparently his contention that Wooten left the house without his knowledge, committed the burglary and returned to the house. Wooten testified the defendant accompanied him and participated in the burglary. In any event, about noon on February 5, Wooten and the defendant left in Wooten's car and eventually went to the home of Buzz Farnsworth. Wooten wanted to sell the stolen tools and equipment, which he had in his car. He asked Farnsworth to pay him $75 for the tools but Farnsworth would only pay $65. The defendant heard this conversation and testified that Wooten asked him what he thought about the price, but he said he did not respond. Wooten sold the tools to Farnsworth for $65, and, according to Wooten, he gave the defendant $30 of the proceeds of the sale. The defendant maintained that Wooten only gave him $10 which was repayment of a loan made by him to Wooten.
On the day Wooten pleaded guilty, and while awaiting a presentence investigation report, he gave a written statement to the undersheriff of Weston County in which he said the defendant had participated with him in the burglary. A copy of this written statement was introduced into evidence by the defendant at his trial. The defendant raised three points which centered about this witness. They were, (1) and (2) that the trial court placed erroneous limitations on the right to cross-examine the alleged accomplice Wooten as to his previous felony convictions and his motives for implicating the defendant, and (3) that the trial court erred in the instruction given to the jury regarding accomplice testimony.
Defendant argued that the court erred in not permitting him to question the witness Wooten as to the number and nature of his previous felony convictions and his motive for implicating the defendant. Wyoming has long adhered to the rule that it is proper to ask a witness whether or not he had been previously convicted of a felony or felonies for the purpose of testing his credibility. Kennedy v. State, Wyo., 470 P.2d 372, reh. den. 474 P.2d 127, cert. den. 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218; State v. Hines, 79 Wyo. 65, 331 P.2d 605, cert. den. 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261; State v. Velsir, 61 Wyo. 476, 159 P.2d 371, 161 A.L.R. 220; Eads v. State, 17 Wyo. 490, 101 P. 946. The defendant should have been permitted to question the witness as to the number and nature of his previous felony convictions, and the trial court erred in not allowing the defendant to so inquire. Wooten was asked by the prosecution if he had ever been convicted of a felony and he replied that he had and cited the burglary here in question. Upon cross-examination he was asked if he had been convicted of any other felonies and he replied 'Yes.' He was then asked when he was '* * * first convicted of a felony and what it was for?' to which question objection was made by the State and sustained by the court. The witness was then asked how many times he had been convicted of a felony, including the conviction for the burglary in question. Again objection was made and sustained. The trial court should have permitted the defendant to pursue this line of questioning. The defendant should have made an offer of proof because it is impossible for a reviewing court to determine whether the exclusion was prejudicial error since the significance of the excluded evidence is not apparent. Here there is no way to determine if the witness...
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