Jaramillo v. State

• Decision Date: 03 January 1974
• Docket Number: No. 4238,4238
• Citation: 517 P.2d 490
• Parties: Joseph Ralph (Mike) JARAMILLO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 490

517 P.2d 490

Joseph Ralph (Mike) JARAMILLO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4238.

Supreme Court of Wyoming.

Jan. 3, 1974.

James E. Sinon, Casper, for appellant (defendant below).

Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., William M. Sutton, Sp. Asst. Atty. Gen., Cheyenne, for appellee (plaintiff below).

Before PARKER, C. J., McEWAN, GUTHRIE, and McCLINTOCK, JJ., and PEARSON, District Judge (Retired).

Mr. Chief Justice PARKER delivered the opinion of the court.

Defendant, Joseph Ralph Jaramillo, charged with the June 15, 1972, first degree murder of Charles Holloway, under § 6-54, W.S.1957, was convicted by a jury of and was sentenced to life imprisonment and was sentended to life imprisonment in the state penitentiary. He has appealed, contending that the trial court (1) erroneously failed to instruct the jury on the testimony of an accomplice and the value to be assigned to such testimony and (2) erred in refusing to fix a minimum and maximum term of imprisonment.

Holloway was found dead in his home. He had been shot five times, two of the bullet wounds being lethal; there were no witnesses to the shooting. Defendant had that day come from Riverton to Casper, riding first in a vehicle driven by Wayne DeLorme; and when that vehicle broke down, the two caught a ride in a truck to Casper where they took a cab to the residence of deceased. Jaramillo and Holloway talked for a while, then left in Holloway's vehicle, and later returned, with Jaramillo at that time handling Holloway's .38 caliber Smith and Wesson revolver. Throughout the afternoon, the three men had been drinking intoxicating liquor. DeLorme, who prior to the trial had been granted immunity, said that while he was outside the house having a cigarette he heard popping noises and Jaramillo later came out of the house with the revolver in his hand and said he had shot Holloway. DeLorme testified he struggled with Jaramillo, took the gun away from him, ran across to a service station where he handed the gun to an attendant, said a man had been shot, and asked the attendant to call the authorities. Jaramillo was found by the police some time later lying on the ground in a field back of the Holloway residence. Among the items in his pockets were Mobil and Standard Oil credit cards issued to the deceased. Defendant testified, saying that he did not kill Holloway but had been outside the deceased's house when he heard popping noises, went inside, and found deceased lying in a pool of blood.

As previously indicated, defendant complains of the court's failure to instruct the jury concerning the testimony of an accomplice and the value to be assigned to it, notwithstanding his failure to so request. We said in Bentley v. State, Wyo., 502 P.2d 203, 206, that Rule 31, W.R.Cr.P., makes Rule 51, W.R.C.P., applicable to criminal cases so that no party may assign as error the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict; and we enunciated the reason for the rule.

The basis for defendant's position was that DeLorme had been granted immunity by the State, that he had testified the defendant during the trip to Casper had said he would get some money if he had to use a gun, and that defendant had on one occasion made a statement to officers that he and DeLorme had planned to kill Holloway and talked about it-the truth of which statement he specifically and categorically denied under oath on the stand.

We know of no authority tending to hold that the granting of immunity to a person ipso facto makes him an accomplice of one charged with a crime, and defendant having under oath disavowed the truth of his previous statement of DeLorme's complicity, the record contains no believable evidence to support defendant's present contention. We should, perhaps, allude to other argument on the subject of accomplice instructions. Numerous cases are cited in an effort to establish the principle that whether or not a witness is an accomplice is a jury question; but without referring to them, it suffices to say that such a rule applies where there is some evidence that the person under discussion is an accomplice. It is contended that Smith v. State, 10 Wyo. 157, 67 P. 977, 979, is authority for saying that DeLorme was an accomplice, it being emphasized that there the court mentioned the witness Black having testified 'under a promise of immunity from prosecution.' In that case, however, the granting of immunity to the witness was only one of several factors which led the court to hold an accomplice instruction necessary. The case, therefore, is not persuasive. Other authorities cited on the point are similarly not germane or worthy of attention.

On the general subject of instructions concerning accomplices, we find some guidance in Judge Blume's analysis in State v. Grider, 74 Wyo. 88, 284 P.2d 400, 407, 74 Wyo. 111, 288 P.2d 766, when he noted that the court had discussed accomplice instructions in State v. Callaway, 72 Wyo. 509, 267 P.2d 970, holding that where the testimony necessary to convict is given by an accomplice without corroboration the trial court must advise and caution the jury as to the danger attendant upon their accepting uncorroborated testimony of an accomplice. While he pointed out a lack of any pronouncement by this court that...