Jerskey v. State
Decision Date | 27 January 1976 |
Docket Number | No. 4465,4465 |
Citation | 546 P.2d 173 |
Parties | Paul Steven JERSKEY, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
Court | Wyoming Supreme Court |
Edward P. Moriarity of Urbigkit, Moriarity, Halle & Mackey, P. C., Cheyenne, for appellant.
David B. Kennedy, Atty. Gen., Timothy J. Judson, Sp. Asst. Atty. Gen., Cheyenne, and Robert Wilson, Sr. Law Student, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK and ROSE, JJ.
On June 11, 1974, a complaint was filed against the defendant, Jerskey, amending one formerly filed May 15, 1974. The later complaint contained two counts with which we are concerned here. The first alleged possession of a controlled substance with intent to deliver under § 35-347.31(a)(ii), of the Wyoming Controlled Substances Act of 1971; the second charged the appellant with attempting to possess a controlled substance with intent to deliver, in violation of § 35-347.42 of the Wyoming Controlled Substances Act of 1971. Both provisions of the statute are contained in W.S.1957, 1975 Cum.Supp.
The appellant was bound over and arraigned on both counts of the amended complaint. He pled not guilty to each, whereupon the trial was had commencing July 8, 1974, and Mr. Jerskey was found guilty and sentenced to prison on both charges. From this the appeal followed. Other facts will be discussed in the course of the opinion.
One of the issues to which our attention is directed is described in appellant's brief as follows:
The problem is of interest-not because it is new or unique-but because the general area with which it is concerned has been here so many times before. 1
The subject is considered in depth by the United States States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2 It pertains to some fundamental constitutional rights, both federal and state. Why the philsophy of the Fifth Amendment and the Miranda treatment of custodial interrogation present such a dilemma to the Bar and Bench is a guessing game in which there are as many guessers as there are lawyers and judges.
Escobedo wasn't that vague-Miranda was definitive enough-and yet the privilege against self-incrimination, in its testing, continues to be stretched until it snaps so that new, expensive trials are necessary because the officials who are concerned with the problem are reluctant to accept the United States Supreme Court's mandates in Escobedo and Miranda and to adopt the spirit and letter of the decisions of this court as we have interpreted these Fifth Amendment doctrines.
The theory of the privilege against self-incrimination is a good, high-principled concept aimed at the preservation of the very most basic of the individual's rights in a democratic society and one which should be readily embraced by all of us. Why is it so difficult to accept and love? 3
In Miranda, referring to Escobedo, the United States Supreme Court said:
.' (384 U.S. 443, 86 S.Ct. 1611)
Justice McClintock, writing for this court in Dryden v. State, Wyo., 535 P.2d 483, 490, when considering the privilege against self-incrimination, said:
'It is further pointed out, 58 P. at 420-421, that the 'constitutional privilege (against self-incrimination) is that the evidence shall not be extorted'; the privilege is that 'he shall not be compelled to testify'; the privilege is 'imbedded in the constitution, and embodies the wisdom of some centuries of experience upon the subject'; and the immunity is complete unless 'waived by the witness with knowledge of his rights.' This
'* * * is an ancient principle of the law of evidence that a witness shall not be compelled, in any proceeding, to make disclosures or to give testimony which will tend to criminate him, or subject him to fines, penalties, or forfeitures.'
citing Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110. Violation of the constitutional right results in a void, not merely erroneous, judgment.'
The right to refuse to testify against oneself, in a criminal proceeding, as this privilege is inscribed in our Federal Constitution 4, our State Constitution 5, and § 7-244, W.S.1957, 1975 Cum.Supp. 6, is the personification of the remedy for an evil which had its beginnings in inquisitional behavior and did some of its dirtiest work in the ecclesiastical courts of early England. 7 The protection was and still is imperative because it would appear that the inquisitions are not a thing of the past if the police manual directives for eliciting confessions, as reviewed in Miranda, are an accurate reflection of what has been going on. 8
It is because of these ancient tendencies by which men in possession of the powers of government seek, with the weaponry of government, to impose their will upon those whom they govern (or 'serve') that the protections embodied in the Federal Fifth Amendment and the Wyoming Constitution, Article 1, Section 11, were needed.
The evil is so often spawned in the name of the law and the pursuit of the public order as expressed by officials who are engaged in doing what is 'good,' 'right,' 'fair,' 'in the public interest,' or who are so often 'just doing their duty.' 9 However, when public officials adopt their own ideas about morality as standards for adjudicating the righteousness of others-absent the guidelines furnished by the common and statutory law pool of experience contributed to by all civilized people-the 'good,' the 'right,' and the 'fair' become the expedient. 10 The standard for the successful society is then judged according to the end result with precious little attention being paid to the manner by which it is achieved and to how many heads may have fallen into the basket in the process. Government becomes ultra powerful and the citizen is relegated to the least rather than the most important unit of the social order. The fragile cobwebs of human rights become misty visions which tend to blend with the ghosts of some public official's private opinion of what is 'good,' 'fair,' 'right,' and 'just' until they become imperceptible and-at last-are no rights at all.
These are the forces with which the law is concerned when it contemplates the privilege against self-incrimination.
The Miranda opinion observes (86 S.Ct. 1619) that
'On account of the Liburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation . . ..'
The Chief Justice, writing for the Court, says that these high principles emerging from the Lilburn Trial
We turn, then, to the precise issue raised by Jerskey's appeal and ask:
Were his constitutional rights violated as those rights are guaranteed by the Fifth Amendment to the Federal Constitution and the corollary Article 1, Section 11, of the Wyoming Constitution?
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