Hovee v. State, 5044

• Court: United States State Supreme Court of Wyoming
• Citation: 596 P.2d 1127
• Docket Number: No. 5044,5044
• Parties: Lloyd N. HOVEE, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Decision Date: 29 June 1979

Page 1127

596 P.2d 1127 Lloyd N. HOVEE, Appellant (Defendant below),
v.
The STATE of Wyoming, Appellee (Plaintiff below). No. 5044. Supreme Court of Wyoming. June 29, 1979.

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James H. Barrett, Cheyenne, signed the brief and appeared in oral argument on behalf of appellant.

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John D. Troughton, Atty. Gen., and Leonard D. Munker, Senior Asst. Atty. Gen., signed the brief for appellee and Munker appeared in oral argument on its behalf.

Before McCLINTOCK, THOMAS, ROSE, JJ., GUTHRIE, J., Retired, and SAWYER, District Judge.

SAWYER, District Judge.

Defendant-appellant, Lloyd N. Hovee, was indicted in two (2) separate indictments which cumulatively contained five (5) counts of embezzlement of State money, funds, or other property and one (1) count of conspiracy to embezzle State funds, money, or other property. The two cases were consolidated for trial, and the appellant was convicted on all six (6) counts. We will affirm the conviction.

The five issues presented for review are:

1. Was appellant denied his constitutional right to a fair and speedy trial by virtue of pre-arrest and pre-indictment delay and were appellant's rights to a fair trial prejudiced as a result of such pre-arrest and pre-indictment delay?

2. Was there a failure of proof of the essential allegation of the complaint that the funds involved in each count of the indictment were funds, money, or property of the State of Wyoming?

3. Was there a failure on the part of the State of Wyoming and in the indictment to completely and specifically set forth the charges involved in § 6-7-305 of the Wyoming Statutes, 1977, or is § 6-7-305 unconstitutional and void for vagueness?

4. Was the evidence and testimony presented at trial sufficient to prove criminal intent and knowledge on the part of the appellant, either directly or circumstantially, that the funds used and items received were, in fact, purchased with State funds or were otherwise the property of the State of Wyoming?

5. Was appellant's testimony improperly ignored or discounted by the jury in arriving at a determination of appellant's guilt on the charges?

The appellant served as Secretary of the Board of Charities and Reform between 1963 and 1976. In this position he had power of expenditure of funds and supervision on behalf of the State institutions. One of the funds was the Keiffer-Orchard Funds which was started for the benefit of the guests of the Wyoming Pioneer Home at Thermopolis and was under the control of the State Board of Charities and Reform of the State of Wyoming. These funds were administered by the State through its authorized administrators, the appellant as Secretary of the State Board of Charities and Reform and Kenneth R. Brighton as Superintendent of the Wyoming Pioneer Home. Mr. Brighton died on February 19, 1977, before the appellant was indicted. The State examined the funds and completed the audit report of the Wyoming Pioneer Home on March 29, 1976. Mr. Brighton and Mr. Hovee resigned shortly thereafter, and criminal charges were filed against Mr. Brighton on the 2nd day of June, 1976. The appellant was first indicted by a State-wide grand jury on November 30, 1977, with one count of conspiracy involving the deceased Kenneth R. Brighton and three counts of embezzlement of public funds, money, or other property. On February 10, 1978, the grand jury handed down a second indictment against the appellant which corrected a problem of Count 4 of the original indictment and added two additional charges of embezzlement.

1. Was appellant denied his constitutional right to a fair and speedy trial by virtue of pre-arrest and pre-indictment delay and were appellant's rights to a fair trial prejudiced as a result of such pre-arrest and pre-indictment delay? We think not.

The United States Court of Appeals for the Ninth Circuit in United States v. Mays, 549 F.2d 670 (1977), where approximately four and one-half years elapsed prior to indictment and three witnesses died, held that the defendants must show not only what evidence was lost due to the delay, but also the way the evidence would have helped in their defense against the charges. In the instant case, there is no

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showing that the testimony of the deceased Kenneth R. Brighton would have assisted appellant.

In 1971, the Supreme Court of the United States in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971) stated:

"* * * In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an 'accused.' * * *"

In 92 S.Ct. at 463 of Marion, the Court continued:

"Invocation of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government's case."

More than five years later in considering pre-indictment delay, the Supreme Court stated in the case of United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 2049-2050, 52 L.Ed.2d 752 (1977):

"* * * From the perspective of potential defendants, requiring prosecutions to commence when probable cause is established is undesirable because it would increase the likelihood of unwarranted charges being filed, and would add to the time during which defendants stand accused but untried. These costs are by no means insubstantial since, as we recognized in Marion, a formal accusation may 'interfere with the defendant's liberty, * * * disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his...