Jasch v. State

• Citation: 563 P.2d 1327
• Decision Date: 14 April 1977
• Docket Number: No. 4663,4663
• Parties: Ronald Lee JASCH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1327

563 P.2d 1327

Ronald Lee JASCH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4663.

Supreme Court of Wyoming.

April 14, 1977.

Christopher A. Crofts, Riverton, signed the brief and appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Jerry M. Murray, Senior Asst. Atty. Gen., Cheyenne, signed the brief and Frank R. Chapman, Asst. Atty. Gen., Cheyenne, appeared in oral argument on behalf of appellee.

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

RAPER, Justice.

The defendant-appellant was found guilty by a jury of a controlled substance (marijuana) delivery in violation of § 35-347.31(a)(ii), W.S.1957, Cum.Supp., and sentenced. ¹ His appeal raises two issues: (1) He was prejudicially joined for trial with a codefendant Jevne, and (2) A statement made by codefendant implicating defendant was constitutionally inadmissible. We will affirm.

Codefendant Jevne was joined over the timely objection of defendant. At the trial, the evidence disclosed that Ted Moore, a volunteer deputy sheriff, while working part-time evenings as an undercover agent, asked a bartender to introduce him to someone who would peddle him some marijuana. Defendant Jasch and the agent were introduced and a deal was made in the bar restroom for the sale of a lid of marijuana for $15.00, delivery to be made at a different bar. Before leaving, the agent paid Jasch for the lid. Delivery was later made to the agent by codefendant Jevne at the different bar. Over objection of the defendant on hearsay grounds and following an instruction from the trial judge that the jury was to ignore the statement was to defendant, the agent was permitted to testify that the codefendant told him, 'I have the lid of grass from Jasch.' Codefendant elected not to testify but the defendant did. Codefendant was therefore not available for cross-examination concerning the statement testified to. Other facts will be set out as required.

We will first discuss the second issue because in this manner its interaction with the first will develop more coherently. The defendant relies on Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, appeal after remand 8 Cir., 416 F.2d 310, cert. den. 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428. In that case a joint trial of the defendant and one Evans was held, both charged with armed robbery. There, the postal inspector had received a post-arrest confession from Evans, the codefendant, expressly implicating the defendant. The court gave an instruction to the jury limiting its receipt in evidence only as to the defendant Bruton. It was held that:

'* * * (B)ecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. * * *' ²

At first blush, one might be deluded into believing that Bruton is applicable but, in the first place, the codefendant's utterance here was not a confession as in Bruton and, secondly, as will be developed, it is well settled law in massive dimensions that in the trial of defendants tried at the same time, jointly or separately charged as coactors in the commission of a crime, the statements of a coconspirator or actor made during and in furtherance of the commission of a crime are admissible as an exception to the hearsay rule and survive coexistent with the Confrontation Clause.

The Sixth Amendment to the United States Constitution provides in pertinent part that, 'In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *.' Since 1965, that provision has been fully applicable to the states under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, mandate conf. to Tex.Cr.App., 391 S.W.2d 62; Douglas v. State of Alabama, 1965, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Moreover, § 10, Article I, Wyoming Constitution, provides that 'In all criminal prosecutions the accused shall have the right * * * to be confronted with the witnesses against him, * * *.' The Bruton doctrine is applicable to the states. Dutton v. Evans, infra.

We will first clear away any suggestion that Bruton has application to the case before us. Within the context of Bruton itself, consideration of the concept of hearsay exceptions (the declaration by codefendant here) was specifically excluded from its application, when the court said in footnote 3:

'* * * There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. * * *' (391 U.S. 128, 88 S.Ct. 1623, 20 L.Ed.2d 481)

The Court then cited several cases and texts which have particular pertinence. There is a world of difference between a defendant's post-conspiracy statement implicating another and a statement implicating another made during the progress of a crime jointly committed.

As far as we are concerned in this case, the Supreme Court answered the question reserved in Bruton in Dutton v. Evans, 1970, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, on remand 5 Cir., 441 F.2d 657, where at issue was a Georgia statute which provided, "After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all." A statement of an accomplice implicating Evans was received in evidence. ³ The court stated:

'* * * (W)e do not question the validity of the coconspirator exception applied in the federal courts.

'* * * It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U.S. 604, 97 L.Ed. 593, 73 S.Ct. 481; Krulewitch v. United States, 336 U.S. 440, 93 L.Ed. 790, 69 S.Ct. 716. * * *'

The point we make is easier to reach in that the court in Dutton went further and allowed the state formula permitting the rule to protrude into the concealment phase of the conspiracy and in citing its case of the previous term, California v. Green, 1970, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, on remand, 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998, reaffirmed its position that the exceptions to the hearsay rule and the rule itself are not in congruence with and there is no automatic conclusion that confrontation rights have been denied if there is violation of a hearsay rule or application of its exceptions. The facts of the case before us are within the federal rule and we cannot and do not make any ruling as to what our decision would be with respect to a declaration made in the concealment phase of a conspiracy. In Dutton, the court noted that the defendant had, as here, his right of confrontation fulfilled by cross-examination of the witness as to whether the statement was actually made, unreliable or unreal.

The court in Dutton closed its opinion, quoting Justice Cardozo in Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575, a statement well worth repeating:

"There is danger that the criminal law will be brought into contempt-that discredit will even touch the great immunities assured by the Fourteenth Amendment-if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.' 291 U.S. (at) 122 (54 S.Ct. at 338), 78 L.Ed. at 687.'

There is nothing in Bruton or Dutton giving any hint that it would upset a doctrine that has prevailed for years. See also Wong Sun v. United States, 1963, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441, 457, for a further statement of the rule that a coconspirator's hearsay statements may be admitted for no purpose unless made during and in furtherance of the conspiracy. ⁴

We have been discussing a rule applicable to conspiracy. No conspiracy was charged here, so why do we discuss it? While the crime of conspiracy is one of popular application in the federal courts and in many states as well, it did not become one of statutory origin in Wyoming until 1969 and 1971, when the legislature by § 1, Ch. 164, S.L.Wyo. 1969, and § 1, Ch. 121, S.L.Wyo. 1971, adopted what is now § 6-16.1, W.S.1957, Cum.Supp., as follows:

'If two or more persons conspire to (a) commit a felony in the State of Wyoming or to commit an act beyond the State of Wyoming which if done in this state would be a felony, and (b) one or more of such persons do any act, within or without the State of Wyoming, to effect the object of the conspiracy, each, upon conviction, shall be fined not more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years or both. A conspiracy may be prosecuted in the county where the conspiratorial agreement or combination was entered into, or in any county where any act or acts evidencing the conspiracy or in any county wherein the furtherance of its purpose took place.'

Hence, Wyoming therefore recognized the crime of conspiracy before the case before us ever arose. Because of the recentness of the conspiracy enactment, there is no useful Wyoming state jurisprudence. However, conspiracy was known when this...