Jackson v. State, 4354

• Decision Date: 21 March 1975
• Docket Number: No. 4354,4354
• Citation: 533 P.2d 1
• Parties: J. Van JACKSON, Jr., Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1

533 P.2d 1

J. Van JACKSON, Jr., Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4354.

Supreme Court of Wyoming.

March 21, 1975.

Rehearing Denied April 28, 1975.

Dean W. Borthwick and Michael W. McCall, Borthwick & McCall, Cheyenne, for appellant.

David B. Kennedy, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., and Stuart S. Healy, Legal Intern, Cheyenne, for appellee.

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

GUTHRIE, Chief Justice.

This is an appeal from a conviction and sentence after defendant's conviction of two charges, being delivery of a controlled substance ¹ and for the unlawful possession of a controlled substance with intent to deliver, all in violation of § 35-347.14(d)(1) and § 35-347.31(a)(ii), W.S.1957, 1973 Cum.Supp. Defendant was sentenced to a term of two to three years' imprisonment on the charge of delivery of a controlled substance but no sentence was passed on the conviction of possession with intent to deliver the controlled substance.

Appellant asserts three propositions as the basis for reversal:

The trial court erred in permitting the State to produce testimony and evidence of crimes or evidence tending to show criminal conduct other than the charges for which the defendant was indicted and tried, and permitting such testimony was clearly prejudicial to the defendant. Defendant was denied the right to a fair and impartial trial for the reason that he was tried on two separate indictments, one charging possession with intent to deliver a controlled substance and the other charging delivery of a controlled substance, which arose out of the same facts and circumstances, and which constituted one offense, and which resulted in prejudice to the defendant.

Defendant was prejudiced and was denied the right to a fair and impartial trial for the reason that the witnesses used by the prosecution at defendant's trial were similar or identical to the witnesses used by the State in previous trials before juries drawn from the same panel from which the defendant's jury was drawn, and for the further reason that the defendant's brother and another individual named Jackson, as well as several other individuals, had been tried by juries drawn from the same jury panel.

THE EVIDENCE RECEIVED

This assignment of error is based upon certain questions asked the witness Quarberg, a State agent, on direct examination and the cross-examination of Cynthia Jackson, defendant's wife, which cross-examination he insists was prejudicial because it tended to show other criminal conduct; and defendant's character not having been placed in issue, this was prejudicial.

The appellant, stating the relies on this only illustratively, sets out the following part of Quarberg's examination in his brief as follows:

'Q Why were you going to J. Van Jackson's residence? A To purchase a controlled substance.

'Q What, if anything, caused you to believe you could? A We had received information J. Van was a dealer in controlled substances.'

These two question were asked and answered before objection was made 'to a witness testifying why he went to the house' and 'on the ground of hearsay information.' The judge thereupon cautioned the witness to confine his testimony to areas of his own knowledge and he thereafter testified these statements were based upon his own knowledge. The court carefully prevented Quarberg from repeating any conversations. There was no objection or suggestion by counsel at that time of any objections other than that of hearsay, and particularly no objection was made that the evidence tended to show other crimes. This court long ago and by way of observation recognized the governing rule that when evidence of such character is offered in explanation of an officer's actions he could state he did so on information if he did not state what the information was, State v. Rotolo, 39 Wyo. 181, 270 P. 665, 667-668. A clear and understandable statement of this rule appears in the case of State v. Sarkis, Mo., 313 S.W.2d 723, 726, where this statement is made:

'* * * The details of the information received may be hearsay but that they were informed is a fact and explanatory of their subsequent action. * * *'

See Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565, 569; State v. Lopez, 182 Kan. 46, 318 P.2d 662, 666; McCormick on Evidence, § 248, p. 587 (2d Ed.); 22A C.J.S.Criminal Law § 718, p. 999.

No objection was made to this testimony or the testimony of Cynthia Jackson on the basis which is now asserted as error. The effect of such failure to object will be discussed hereafter.

The cross-examination of Cynthia Jackson of which appellant complains is the cross-examination of the prosecuting attorney as to certain items found when the house was searched on May 4, 1973. An inquiry was made as to certain pipes, a water pipe, and certain other smoking devices, which appellant now contends attempted to portray him as a notorious drug peddler or user. There was mention of a roach clip, and after objection was sustained this was pursued no further at that time, although later when the question was repeated the court prevented any answer thereto.

Upon her direct examination Cynthia Jackson had denied that Agent Elliott was in the house on April 2, 1973, and recited she did not come to the home until May 4, 1973. She thereby placed her credibility directly in issue and upon her cross-examination stated her memory was excellent. This was certainly proper cross-examination, unless proper objection was made, to test her memory and the accuracy of her observations, Wright v. State, Wyo., 466 P.2d 1014, 1016.

It may be noted with reference to appellant's assertion of error in connection with the cross-examination of Cynthia Jackson that the only objections made to the questions propounded to her were on the grounds that the same were not relevant anc competent. When counsel even suggested another ground that this line of questioning was trying to suggest something which had not been received in evidence, the trial judge immediately ordered cessation of that line of questioning, although it is apparent that even this objection was not sufficient to raise the question now asserted.

This court has repeatedly held it is error, unless within certain recognized exceptions, to introduce evidence of different crimes other than the crime for which the prosecution is had. ² It is not intended herein to in any way modify this rule. However, in absence of objection, as we have heretofore mentioned, we cannot reach this question in connection with the testimony of either Agent Quarberg or Jackson. We have heretofore held in Murdock v. State, Wyo., 351 P.2d 674, 679, that:

'* * * The objection of incompetency, irrelevancy, and immateriality is not sufficiently specific to raise any question for decision; (citations). The objector should lay his finger on the particular point intended to be raised so that the trial court will have notice and an opportunity to cure the alleged error. It follows that there was no error in the trial court's overruling of defendant's objection.'

Insofar as the testimony of both of these witnesses is concerned, defendant cannot now assert another ground of error, Murdock v. State, supra; Valerio v. State, Wyo., 429 P.2d 317, 319; Elmer v. State, Wyo., 463 P.2d 14, 19, rehearing denied 466 P.2d 375, certiorari denied 400 U.S. 845, 91 S.Ct. 90, 27 L.Ed.2d 82; Martinez v. State, Wyo., 511 P.2d 105, 109.

This court has recognized an exception to the requirement that...