Johnson v. State, 4645

• Decision Date: 22 April 1977
• Docket Number: No. 4645,4645
• Citation: 562 P.2d 1294
• Parties: Andrew J. JOHNSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1294

562 P.2d 1294

Andrew J. JOHNSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4645.

Supreme Court of Wyoming.

April 22, 1977.

Philip P. Whynott, of DeHerrera & Whynott, Cheyenne, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Jerry M. Murray, Senior Asst. Atty. Gen., and Frank R. Chapman, Asst. Atty. Gen., Cheyenne, for appellee.

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

GUTHRIE, Chief Justice.

Appellant was tried and convicted of the crime of aggravated robbery under § 6-66, W.S.1957, and pursues this appeal from the conviction and sentence levied thereunder. We affirm.

On July 21, 1975, at approximately 2:45 p. m., while employees Linda M. Eastin and Celia Fresquez were upon the premises of One-Hour Cleaners in Cheyenne, a young man entered the back door with a gun in his hand and demanded that he be given the money in the establishment. Mrs. Eastin, the assistant manager, took approximately $80 from the cash register and gave it to him. While this was happening, Mrs. Fresquez came in and she was ordered to lie down, which she did. Both of the women saw the person who perpetrated this robbery. His face was covered by a coffee-colored nylon stocking. They did observe that he was black and was wearing black tennis shoes with white stripes; that he was of medium build-over 5 feet 6 inches; that he was wearing a turquoise t-shirt and faded levis; and they did observe his arms. Neither of the women saw the man as he was leaving, nor did they hear any car motor or car driving away. The police were immediately notified; and Deputy Sheriff Grady, who was in the area-having received a description of the suspect via radio as being a male Negro about 5 feet 8 inches to 5 feet 10 inches, of slender build, wearing a blue t-shirt, faded levis and black and white tennis shoes-made general inquiries in the neighborhood. Among those to whom he talked were two fifteen or sixteen-year-old girls whose names he does not recall. They indicated to him they had seen a man of that description enter a house at 2623 Bent. He immediately called other officers, who came to the house. Detectives Backus and Wilkinson arrived shortly. Wilkinson knocked on the door, and Henry Rudolph, an owner of renter of the premises, answered the door and let the officers in. Rudolph and a Johnny Martinez were in the front room, and while Rudolph was placed in Wilkinson's charge, Backus went to the rear of the house to see if there was an exit. While going there he saw in the stool in the bathroom a stocking, which he retrieved. He observed the toilet had been recently flushed and the water was still moving through.

At that time Rudolph indicated the closet in the bedroom, and the officers approached the closet with drawn guns and ordered the occupant to come out. Defendant replied, 'I'm coming out, don't shoot.' He was turned over to a policeman and taken to a car. At the time of his arrest defendant was wearing black and white tennis shoes, faded jeans, and a white t-shirt. When Backus returned to the bedroom he saw a blue t-shirt on a pile of dirty clothes in the corner. When Wilkinson entered the bedroom, having received indications that defendant was in the closet, he noticed a closet off the living room with the door open and saw a gun lying on the floor of this closet.

Sheriff Flynn, having heard of the robbery and investigation, arrived at the premises shortly and along with Detectives Backus and Wilkinson searched the kitchen area. He found $79 in currency underneath a toaster in the kitchen.

The witnesses Eastin and Fresquez identified the stocking as being the one worn by defendant and identified the blue t-shirt as the one worn by defendant. Eastin testified that the gun found on the premises where appellant was arrested was the same color and shape, and had the same size muzzle or 'hole in the end,' and that it was a revolver. Fresquez said the barrel and sight on the end of the gun were similar to the one used in the robbery. On cross-examination she related she 'has been around

guns' and that the front sight was different from the guns she had observed. Both expressed the view that it was the gun which had been pointed at them; also, that the color of the robber's skin was the same shade, and that his height and build were similar to the man who entered the premises. They could observe no difference between the defendant and the person they had observed at the time of the robbery.

INSUFFICIENCY OF EVIDENCE

Appellant contends that the trial court was in error when it denied his motion for acquittal at the close of the State's case, arguing that there was insufficient evidence to sustain his conviction.

Appellant implies that because his conviction is based upon circumstantial evidence, this court should apply a different test in determining the sufficiency of the evidence and emphasizes the lack of what he terms direct proof. The standard of review which this court must follow in such cases is as set out in Blakely v. State, Wyo., 542 P.2d 857, 863:

'* * * It does not in anywise change the standard of review in a criminal case by this court which remains as stated in Harris v. State, Wyo.1971, 487 P.2d 800, 801. This court will 'view the evidence in a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.'"'

Also see Bentley v. State, Wyo., 502 P.2d 203, 208. We find little help from appellant's brief and argument on this point, which seem directly aimed not at the sufficiency, but the weight, to be given the evidence, and apparently would deny the jury the right to draw inferences from these facts. Appellant only concludes that because of the failure to 'directly link the appellant to any of the instrumentalities or facts of the robbery,' the State has not proven a prima facie case.

Even though none of the circumstances standing alone might be sufficient to support a conviction, it has been said:

'* * * The nature of circumstantial evidence implies the weaving of a fabric of known facts, which may be inconsequential alone, but become important when they are tied to other facts which lead to inevitable conclusions as to facts in issue. * * *' Mathis v. People, 167 Colo. 504, 448 P.2d 633, 637.

Identification of an accused, therefore, need not be positive in order to obtain a conviction. The witness need only testify that it is his belief, opinion or judgment that the accused committed the crime. The lack of positiveness goes only to the weight of his testimony, State v. Williamson, 78 N.M. 751, 438 P.2d 161, 164, certiorari denied 393 U.S. 891, 89 S.Ct. 212, 21 L.Ed.2d 170; cf, Boyd v. State, Wyo., 528 P.2d 287, certiorari denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102.

The general rule with regard to establishing an accused's identity is stated in 77 C.J.S. Robbery § 47, p. 508:

'* * * Where the sum total of circumstantial evidence is sufficient, accused may be identified by his voice, or particular manner of talking, or by tracks, or footprints, or by any distinctive features of his person or apparel, or by any other evidence of a purely circumstantial character. * * *' (Emphasis supplied.)

In particular, a defendant may be properly identified by a witness's recognition of his height and weight, size, movements, features, mannerisms and the clothing he was wearing at the scene of the crime, State v. Williamson, supra, 438 P.2d at 163; Mathis v. People, supra; People v. Susanec, 398 Ill. 507, 76 N.E.2d 33, 36; State v. Scobee, 331 Mo. 217, 53 S.W.2d 245, 251; Bennett v. State, Okl.Crim., 546 P.2d 659, 663; State v. Carcerano, 238 Or. 208, 390 P.2d 923, 927, certiorari denied 380 U.S. 923, 85 S.Ct. 921, 13 L.Ed.2d 807; Comer v. Commonwealth, 211 Va. 246, 176 S.E.2d 432, 434. See also, 1 Wharton's Criminal Evidence, § 188, p. 372 (C.E. Torcia 13th Ed.).

It is also appropriate to note that a weapon identified as similar to or bearing a sufficient resemblance to the one used by the defendant in the commission of the criminal act is admissible in evidence, Davidson v. State, Okl.Cr., 550 P.2d 974, 977; Cokley v. People, 168 Colo. 52, 449 P.2d 824, 827; Stalley v. State, 91 Nev. 671, 541 P.2d 658, 661. This evidence is relevant to show availability to the defendant of the means to commit the crime in conformity with the charges filed against him, Davidson v. State, supra; Stalley v. State, supra; 22A C.J.S. Criminal Law § 712, p. 956.

We conclude from a consideration of the evidence in this record that it was proper to allow the case to go to the jury and we will not substitute our judgment for that of the jury as fact finders, Lewallen v. State, Wyo., 536 P.2d 148, 150; State v. Koch, 64 Wyo. 175, 189 P.2d 162, 169-170.

ILLEGAL SEARCH AND SEIZURE

Although in this case no motion to suppress any of these exhibits was made prior to trial, under Rule 40(e)(1), W.R.Cr.P., nor was any objection made upon this basis to the admission of this evidence at the trial, appellant now contends that the court upon its own motion should have inquired of the witnesses and then suppressed Exhibits 1, 3, and 4; ¹ and that the failure to do so constituted plain error as contemplated by Rule 49(b), W.R.Cr.P. No explanation is tendered by appellant for the failure to raise this.

The general rule is as follows:

'* * * It ordinarily cannot be claimed on appeal that a search and seizure were illegal if there was neither a motion to suppress nor an objection to introduciton of the evidence at the trial. * * *' 3 Wright, Federal Practice and Procedure, § 678, pp. 141-142.

In this connection see Sykes v. United States, 5 Cir., 373 F.2d 607, 612, certiorari denied 386 U.S. 977, 87 S.Ct. 1172, 18 L.Ed.2d 138; United States v. Meadows,...