Justice v. State
| Decision Date | 12 June 1989 |
| Docket Number | No. 88-189,88-189 |
| Citation | 775 P.2d 1002 |
| Parties | Mark JUSTICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Michael Cornia, Appellate Counsel, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for appellee.
Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and GRANT, District Judge.
The primary problem the court must address in this case, an appeal by Mark Justice from his conviction for the crime of aggravated robbery, is his claim of lack of relevancy of evidence of collateral misconduct which he contends was admitted improperly, preventing him from having a fair trial. The several matters of accused evidence (which include testimony about events other than collateral misconduct) related to evidence of his theft of fishing tackle prior to the charged armed robbery; the prior forgery of a check of the robbery victims; testimony concerning his desire to kill the victims to assure that they could not later testify that they had recognized him at the crime scene; testimony of an accomplice about the reactions of robbery victims; and testimony from the victims about the impact of crime on them. In addition, questions are raised concerning the propriety of the limiting instruction that the court gave to the jury; the chilling of presentation by Justice of evidence that he had no prior felony convictions; whether there was any possibility that the admission of the accused evidence constituted harmless error; and whether the doctrine of cumulative error should be invoked to reverse the conviction. The court is satisfied from an analysis of this record, in light of the pertinent law, that no reversible error was committed, and the judgment and sentence is affirmed.
Mark Justice was tried by the jury on a single count of aggravated robbery in violation of §§ 6-2-401(a)(ii) and (c)(ii) and 6-3-402, W.S.1977. 1 After the jury found him guilty, Justice was sentenced to a term of not less than seven and one-half nor more than twelve and one-half years in the state penitentiary, with credit given for pre-trial incarceration. It is from that judgment and sentence that Justice has taken this appeal.
In his Brief of Appellant, Justice lists these issues:
The State of Wyoming sets forth the following issues:
In his Reply Brief, Justice then offers this statement of an additional issue:
"Whether the admission of the evidence of the alleged theft, forgery and desire of the defendant to kill the victims was harmless."
On June 21, 1987, at approximately 9:45 P.M., a man, his wife, and the wife's teen-age sister were the victims of an armed robbery occurring in their home at the Lake Stop, located about one-quarter mile from Lake DeSmet and some seven miles north of Buffalo. The Lake Stop is a convenience store, tackle and bait shop, and a small gas station which offers merchandise and services to fishermen and others who frequent Lake DeSmet as a recreational area. The circumstances of the robbery were captured succinctly by defense counsel in closing argument when he said that the man, woman, and girl "are three good, decent, nice folks who are the victims of a brutal, savage robbery, * * *." Three men burst into their living quarters at the Lake Stop, and two of them, brandishing pistols, directed the man and the teen-age girl, who were watching television in the living room, to lay face down on the floor. In a few minutes, the wife, who had gone to bed in the bedroom, was brought into the living room by one of the robbers and directed to lay down next to her husband. The three victims were bound, and their faces were covered with a blanket so that they could not observe the robbers. The cash from their business operations, two shotguns, and a rifle were taken by the robbers who then made their escape in the wife's Buick automobile.
Mark Justice, who was charged in January, 1988 with being one of the perpetrators of the aggravated robbery, first was associated with the Lake Stop and the victims during the construction phase of the Lake Stop in April of 1987. He had been hired by a foreman for the construction to assist in building fences, decks, and similar things. After working for some twenty-eight days, Justice left the Lake Stop when the construction phase had been finished but, some four days later, after the store had been opened, he appeared and camped out at Lake DeSmet. A day or so later, he asked about a job with the victims, and they advised him that they had no money with which to hire an employee. Justice then suggested that he was completely at loose ends and that he would work for a while if they would give him a place to stay, board, and whatever they might be able to pay him. The ultimate arrangement was that he could work for approximately thirty days during which time he would be furnished board and room and, at the end of that time, the husband would give him a 1978 Yamaha motorcycle.
Justice worked for the victims for about two weeks. He built some small toolsheds, helped put boats in and out of the water, and even helped with running the store on some occasions. Then, one day, he was sent to Buffalo to pick up an auger that had been left there for repairs. Justice did not return as promptly as expected, and the husband, later in the afternoon, went looking for him and found him drinking with some friends. He asked Justice if he was coming home. Justice said that he would be along soon, and the husband asked him to take the car home promptly. Justice then drove the car in an abusive manner and smashed the stereo system with his foot or his hand. There followed a period of literal uproar during which Justice was driving his motorcycle in a reckless and dangerous manner, and the husband and he had a quarrel which was precipitated by an inquiry about checks missing from the checkbook. Justice decided to go look for the checks when the husband decided he would call the sheriff, and he did return in about an hour and a half. He was even more intoxicated. He produced one check, but he said that the other was lost. What followed was a very angry discussion between Justice and the husband during the course of which Justice offered to fight the husband several times. The wife and her sister became quite upset and frightened about his conduct.
Ultimately, Justice went to sleep and, the next morning, the husband told him he would have to leave. He filled the motorcycle with gas and sent Justice on his way. The husband then went to the IGA store to inquire about the missing check because Justice had admitted cashing the check there to pay for film for the business. The wife had given him $20 for that purpose, but he had used the cash to purchase beer for himself and his friends. When the husband was leaving the IGA store, Justice came up on his motorcycle and asked for some money. The husband furnished some $6 or $7 worth of change that he had in his vehicle, and Justice then left. The armed robbery at the Lake Stop occurred on the evening of the following day.
At the trial in this case, the only element of the offense that was in issue was the identity of Mark Justice as one of the perpetrators. There clearly was no dispute whatsoever about any of the other elements of the crime. Because of the circumstances of the robbery and the requirement that they keep their heads covered, none of the victims could identify Justice. The direct evidence connecting Justice with the crime came from an accomplice whose testimony clearly established the element of identity so far as Justice was concerned. The accomplice, however, had a lengthy prior criminal history, and the prosecuting attorney had agreed not to prosecute him for this crime in exchange for testimony against Justice. The accomplice had been connected with the crime because the rifle that was stolen was discovered in a search of the home of a relative of the accomplice, and the relative promptly explained the source of the rifle. Due to the concern that arose over the credibility of the accomplice, the prosecutor chose to inject other evidence concerning identity into the case. The other evidence was designed to corroborate the testimony of the accomplice, but it led to the contentions of error made by Justice in this appeal.
The claims of error in the admission of evidence relate to the theft of fishing tackle from the Lake Stop which the...
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