Johnson v. State

• Decision Date: 04 March 1991
• Docket Number: No. 89-283,89-283
• Parties: Andrew J. JOHNSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1282

806 P.2d 1282

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

No. 89-283.

Supreme Court of Wyoming.

March 4, 1991.

Rehearing Denied March 27, 1991.

Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, and David Lindsey, Asst. Public Defender, Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen. and John W. Renneisen, Deputy Atty. Gen., for appellee.

Before URBIGKIT, C.J., MACY and GOLDEN, JJ., and RAPER and BROWN, Ret.JJ.

BROWN, Justice, Retired.

In a jury trial in the Laramie County District Court, appellant Andrew J. Johnson was convicted of aggravated burglary and first degree sexual assault. The jury also found him to be a habitual criminal.

Counsel for appellant raised five issues on appeal: ¹

I. Was the Appellant improperly denied his right to waive a trial by jury?

II. Was the suppression ruling of the trial judge proper?

III. Was it reversible error for the trial judge to exclude evidence of the victim's prior reports of sexual assault based on trial counsel's failure to comply with § 6-2-312 W.S.1977.

IV. Was it reversible error for the trial judge to allow the state to present witnesses which were not provided to the Defendant under the reciprocal discovery provision of Rule 16.1 W.R.Cr.P.?

V. Did the prosecutor impermissibly comment on the Defendant's right to be innocent until proven guilty?

The State of Wyoming states the issues to be:

I. Does the "Supplement Brief of Appellant" filed pro se raise any issues cognizable by this court?

II. Does a criminal defendant have an unqualified right to waive a trial by jury?

III. Was the trial court's denial of appellant's motion to suppress the identification of appellant's eyeglasses proper?

IV. Was the admission of appellant's identification of his eyeglasses harmful error, requiring reversal of appellant's convictions?

V. Did the trial judge properly exclude evidence of the victim's prior conversations of sexual assault?

VI. Did the trial judge properly allow the state to present witnesses previously noticed to the defendant, but not noticed to the defendant under the reciprocal discovery provision of Rule 16.1 W.R.Cr.P.?

VII. Did the prosecutor impermissibly comment on appellant's right to be silent until proven guilty?

We affirm.

In the evening of June 10, 1989, the victim was drinking in a bar with friends. Appellant Andrew J. Johnson, known as "A.J.," came into the bar. The victim had previously met A.J. through her boyfriend. The victim and A.J. talked about the latter's recent break-up with his girlfriend. They decided to check out a few well-known watering holes in Cheyenne.

The victim did not have identification to gain entrance into certain establishments, so she and A.J. drove to her house to look for her I.D. Upon arriving at her house, A.J. went to the living room, sat down in a chair and remained there while the victim looked for her I.D. She did not find it. Nevertheless, they went to the Cheyenne Club with assurances from A.J. that he could gain her admittance to the bar. From there they went to the Mayflower, where they were asked for identification. The victim remembers A.J. reaching into his back pocket and showing his identification card at the Mayflower. After leaving the Mayflower, the victim drove home, leaving A.J. at an unidentified building.

After reaching her house, the victim went to bed. She was awakened sometime later by a banging on her door, and a voice she recognized as A.J.'s. She heard the glass on the door break and footsteps move across the glass. The victim could see the intruder clearly and recognized him as appellant, Andrew J. Johnson. The victim jumped out of bed, pushed appellant and ran toward the bathroom. Appellant grabbed the victim's arms, twisted them behind her back, and threw her face down onto the floor and proceeded to ravish her. Appellant then turned the victim over onto her back and again raped her.

A downstairs neighbor heard the victim scream, dialed 911 and reported what she was hearing. Officer Alan W. Spencer responded to the 911 call. He noted the broken glass inside the apartment and supposed that someone standing outside the apartment must have broken the windows. Spencer heard crying, whimpering and muffled yells coming from the apartment. The victim was sobbing and in a hysterical emotional state. Through her cries, the victim said, "He hurt me, he hurt me." Officer Spencer asked, "Who hurt you?" The victim responded that it was "A.J." who had hurt her.

Officer Spencer found appellant's identification on the floor of the victim's apartment. The identification packet was properly received into evidence as state's exhibit 13. State's exhibit 13 consisted, in part, of a Wyoming identification card and a Wyoming driver's license. Both items of identification show appellant wearing glasses, and the glasses worn in the identification appear identical to the glasses found at the victim's apartment. Spencer showed the identification to the victim and asked, "Is this the A.J. you're talking about?" The victim, upon looking at the picture, went into hysterics, but eventually responded, "Yes, that's A.J."

About two days after the rape, the victim found a pair of glasses in her bedroom. She thought the glasses must have belonged to appellant, so she called Detective Stanford of the Cheyenne Police Department. Appellant subsequently identified the glasses as his. The victim remembered appellant wearing his glasses at the bar after they had looked for her identification, and she testified at trial that she had never seen appellant without his glasses.

Appellant appeals from his jury conviction.

I

At his arraignment and again before trial, appellant requested that his case be tried before the court without a jury. The state did not consent to a nonjury trial. Because of the state's refusal to waive a jury trial, the court directed that the case be heard by a jury.

The waiver of right to a jury trial is controlled by W.R.Cr.P. 24(a). This rule provides:

Trial by jury.--Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the state.

This rule confers upon the defendant a "qualified" right to waive a jury trial. The right is qualified because waiver requires approval of the court and consent of the state. In Taylor v. State, 612 P.2d 851, 854 (Wyo.1980), 37 A.L.R.4th 304, 315 (1985), this court stated:

In other words, the rules implicitly acknowledge that the right to trial by jury is a constitutional right of the defendant, the waiver of which is qualified in the context that it may not be exercised without the approval of the court and the consent of the State.

An accused does not have a right to a trial to the court. In Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), the Court pointed out that:

We find no constitutional impediment to conditioning a waiver of this right [the right to trial by jury] on the consent of the prosecuting attorney and the trial judge when, if either refuses to consent, the result is simply that the defendant is subject to an impartial trial by jury--the very thing that the Constitution guarantees him.

Appellant contends that there is an exception to the general rule that the state must consent to a nonjury trial. In support of this contention he refers to Singer:

We need not determine in this case whether there might be some circumstances where a defendant's reasons for wanting to be tried by a judge alone are so compelling that the Government's insistence on trial by jury would result in the denial to a defendant of an impartial trial. Petitioner argues that there might arise situations where "passion, prejudice ... public feeling" or some other factor may render impossible or unlikely an impartial trial by jury.

Singer, 380 U.S. at 37-38, 85 S.Ct. at 791 (footnote omitted).

Referring to the quotation from Singer, appellant states in his brief to the court:

This passage creates an exception to the generally accepted proposition that there is no constitutional impediment to conditioning the Defendant's right to waive a jury trial upon the approval of the court and the consent of the state. The court points out that in certain cases trial to a jury would violate the Defendant's right to an impartial trial. This is exactly such a case.

This case involves an accused who is a black and an alleged sexual assault victim who is white. The crime is alleged to have occurred in Cheyenne, Wyoming, a community with a limited number of black persons. The number of blacks is so limited that not one black was impanelled on the jury venire, and obviously no blacks sat on the Appellant's jury. This situation is sufficient to implicate the Appellant's ability to receive a fair jury trial. However, additionally is the fact that the crime appellant was accused of is one of the type which tends to arouse the passions, prejudice and public feelings of any community. * * * Appellant had no chance of receiving an impartial jury trial.

While appellant phrases this issue as a denial of a right to a nonjury trial, his argument is that he was denied the right to an impartial jury. If the right to a fair and impartial jury is questioned, a motion for a change of venue is the proper recourse under W.R.Cr.P. 23(a). Appellant has presented no evidence, to either the trial court or this court, that would tend to show prejudice so great as to deprive him of an impartial jury. An accused is guaranteed the right to a trial by jury; he is not guaranteed the right to a nonjury trial. Trial by jury was not error. This conclusion is supported, almost without exception, by other jurisdictions which have a rule the same or very similar to Wyoming's. Annotation, Right of Accused, in State Criminal Trial, to Insist, Over Prosecutor's or C...