Jones v. State
| Decision Date | 26 July 1977 |
| Docket Number | No. 4604,4604 |
| Citation | 568 P.2d 837 |
| Parties | Nathan Earl JONES, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald K. Russell, Rawlins, signed the brief and appeared in oral argument on behalf of appellant.
V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Frank R. Chapman, Asst. Atty. Gen. Cheyenne, signed the brief and appeared in oral argument on behalf of appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
Appellant-defendant was found guilty by a jury in district court of first degree murder in killing a human being during an attempt to perpetrate a robbery in violation of § 6-54, W.S.1957, as amended, 1 and sentenced
for the term of life in the Wyoming State Penitentiary. In this appeal, the defendant raises the following issues:
1. Was the circumstantial evidence adduced at trial sufficient to sustain his conviction?
2. Did the prosecution engage in massive suppression of exculpatory evidence?
3. Did the trial court err in denying defendant's motion for a new trial based upon newly discovered evidence?
We shall affirm.
On July 30, 1974, William Johnson, the operator of an automobile service station, was found shot to death by two different guns, one a .22 caliber weapon and the other a .38 caliber weapon. The shots caused three wounds, the one in the left chest proving mortal. After investigation, the defendant and two others, Paula Jean Cason and Gary Richmond, were arrested on the same day. Cason was found at 4:00 p. m. in Richmond's car, which was parked perpendicular to old U.S. Highway 30 about a mile east of the service station toward Sinclair, Wyoming. Richmond was arrested a few minutes later in Sinclair. The defendant was apprehended sometime after 5:00 that evening. In a separate trial, Richmond was convicted of killing a human being during an attempt to perpetrate a robbery; affirmed, Richmond v. State, Wyo.1976, 554 P.2d 1217.
The scene of the crime was a service station located just off old Highway 30, three miles east of Rawlins and three miles west of Sinclair. There are no other buildings in the area except for a drive-in theater which is located about a mile to the west. The Union Pacific Railroad tracks are located approximately 150 yards south of the station. Interstate Highway 80 is located about one-half mile to the north.
The defendant was seen sitting in the front seat of Richmond's car with the latter and his girlfriend, Paula Cason, at about 10:00 a. m. on the day of Johnson's murder. The car was parked near Cason's residence at the Pioneer Apartments in Rawlins. Richmond and the defendant returned at 2:00 p. m. to pick up Mrs. Cason, who left her apartment with a packed suitcase, apparently intent on going to Houston, Texas. While she did not possess the funds necessary to make the trip, Cason was relying on Richmond and defendant to get her the money through the robbery. Cason got into the front seat of Richmond's automobile and occupied a position between the driver, Richmond, and the defendant. The defendant, a black man, was wearing a maroon-colored short-sleeved knit shirt, jeans and a necklace.
The first stop was at a Gas-O-Mat in Rawlins where the defendant purchased a pack of cigarettes. They proceeded to old Highway 30 and went past the service station to the outskirts of Sinclair where Richmond was seen walking around his car while Cason and the defendant remained in the interior. They apparently doubled back and passed the station again while heading west toward Rawlins. Richmond stopped the car in the vicinity of the drive-in and asked Cason to drive. Richmond got out of the car and occupied the seat previously used by the defendant while the latter moved to the back seat. As the defendant was leaving the car, Cason noticed a brown holster strapped on his left hip, which was holding a black-barreled gun with a brown handle. Cason, following Richmond's instructions, maneuvered the car east toward the service station until she stopped it west of the building and let the defendant and Richmond out of the car. She last saw them run across the highway and start walking toward the service station. As directed, Cason drove into the service station and had the attendant check the oil and water. She then proceeded about a mile down the highway toward Sinclair whereupon she parked the car out of view of the service station.
Four section men of the Union Pacific Railroad were spotting ties on the railroad tracks in the vicinity of the service station. The crew was working about 1,000 yards east of the station at about 3:00 p. m. when two of them heard three gun shots fired in rapid succession, lasting about three to five seconds. Within two to three minutes thereafter, all members of the crew saw two men running in an easterly direction from the service station. One of the men was described as a black male about six feet tall, 145-160 pounds, and wearing a wine-colored shirt. The other man was a white male with a beard and shoulder-length hair and wearing an orange shirt. They went through a fence north of the highway and disappeared momentarily behind a large brush-covered mound of dirt about 400 to 500 feet east of the station. A few minutes later, they reappeared from the brush area and split up, the black man running north toward Interstate Highway 80, the white man heading east. As the black man was moving away from the brushy area, one of the workers noticed an object fly into the air in the vicinity of the path taken by the former. The black man disappeared over a cut or bank to the highway about one-half mile away.
Robert Treick was commuting from his home in Rawlins to his job in Hanna on the afternoon of the murder. He had left the house at about 2:50 p. m., filled his pickup with gas and entered Interstate 80 heading east. About halfway between Rawlins and Sinclair, he picked up a hitchhiker whom he described as a black man wearing a wine or purple-colored tank top shirt, Levi's and necklace. The hitchhiker was perspiring heavily and spitting out the window. At the black man's request, Treick drove him into the outskirts of Sinclair, whereupon he got out and took off running. Treick identified the hitchhiker as the defendant.
Ron Davis was driving in Sinclair on the way to Rawlins when he was waved down by the defendant sometime between 3:30 p. m. and 4:00 p. m. The defendant was sweaty and quite subdued. At defendant's request, Davis drove to Rawlins and dropped him off at his residence.
Richmond, subsequent to his arrest, made a tape-recorded statement to the Carbon County undersheriff, Floyd Rodabaugh. The statement was made at about 5:15 p. m. Thereafter Rodabaugh, accompanied by the manager, went out to the service station to collect evidence. He found a white T-shirt with a string tied around the center to form a hood and a black electrical cord near the floor safe a few feet away from the place where Johnson's body was found. He later searched an area about a block west of the station and on the north side of Highway 30, whereupon he observed two sets of footprints which headed in a northerly direction toward the station. The tracks led to the back or west side of the building and proceeded around to the north end where they then disappeared into a packed patch of ground about 20 to 25 feet from the entrance to the office (on the east side of the building).
At about 6:00 p. m., sheriff Ogburn and deputies Tierney and Glidden were accompanied by two of the railroad section men to the general area where the two fleeing men were seen hiding behind a brush-covered sand dune. Tierney observed two sets of tracks which led to a large sand dune about 50 feet to the east. Tierney started digging a disturbed area of ground in the brush wherein he found a .22 caliber revolver, a green ski mask with holes for eyes and mouth, a brown jersey glove with red lining and a gray leather glove. A few feet away Glidden found a .38 caliber revolver. After Tierney recovered the evidence, he followed two sets of tracks east of the brush-covered area until they split up, whereupon he traced the tracks which headed in a northerly direction toward Interstate 80. After walking about 100 feet, Tierney encountered a small wash where he found a brown-leather holster which he described as fitting a short-barreled revolver. 2 Tierney The .38 caliber bullet removed from victim's body was ballistically matched to the .38 caliber revolver retrieved from the brush-covered sand dune. The two .22 caliber bullets taken from the victim's body could not be matched with any weapon because they were mutilated. 4
then continued to follow the tracks which ultimately led to the interstate highway. 3
The defendant contends that inasmuch as his conviction was based upon circumstantial evidence, a different standard should be applied by this court in determining whether such evidence was sufficient to sustain his conviction. He emphasizes the lack of direct proof of his knowledge of either a plan to commit the robbery or its attempted commission and the failure of the prosecution to place him inside the service station which in his view is insufficient to support the guilty verdict because the evidence does not exclude every reasonable hypothesis other than that of guilt. 5 We will state once again that the standard of review which this court must follow in these cases is set forth in Blakely v. State, Wyo.1975, 542 P.2d 857, 863:
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