Keller v. State
| Citation | 771 P.2d 379 |
| Decision Date | 31 March 1989 |
| Docket Number | No. 87-16,87-16 |
| Parties | Thomas Ray KELLER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Martin J. McClain, Deputy State Public Defender, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Sylvia L. Hackl, Sr. Asst. Atty. Gen., Bret Berger Strand, Legal Intern, for appellee.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.
The main question in this appeal is whether the court erred in refusing to give to the jury a requested lesser included offense instruction on the offense of criminal entry in a trial in which Thomas Ray Keller (Keller) was convicted of three counts of burglary. Other issues are presented relating to Keller's sentence. These include challenges to the authority of the court to order Keller to attend therapeutic programs at the penitentiary, to order Keller to pay restitution in an amount to be determined at a later time, and to order Keller to repay the office of the public defender for legal services. We conclude that the trial court did err in refusing to give a lesser included offense instruction as to one of the counts of burglary, and we reverse the judgment on Count III for that reason. We also are persuaded that the judgment and sentence did exceed the authority of the trial court, and we declare the judgment and sentence void with respect to the aspects attacked by Keller.
In his Brief of Appellant, Keller sets forth these issues:
In the Brief of Appellee, the State identifies the issues in this way:
Keller initially was charged with four counts of burglary in violation of § 6-3-301(a), W.S.1977 (June 1983 Repl.). That statute provides:
"(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein."
Those charges were:
COUNT PLACE DATE
I Super Wash Car Wash June 6, 1985
II Ford Store June 7, 1985
III Broadway Cleaners June 12, 1985
IV White Eagle Motors Dec. 28, 1985
All of these business establishments were located in Rock Springs.
After originally entering a plea of not guilty to each of these counts, Keller made an arrangement pursuant to which he entered a plea of guilty to the lesser charge of criminal entry as to the alleged burglary of the Broadway Cleaners. That count was dismissed from the case, and an amended information was filed incorporating the three remaining counts. Keller then went to trial on those charges of burglary. After trading a plea of guilty to criminal entry for the charge of burglary at the Broadway Cleaners, Keller was interested in obtaining the same opportunity in front of the jury. His initial claim of error is premised upon the refusal of the district court to instruct the jury on the lesser included offense of criminal entry.
An evaluation of this contention requires a summary of the evidence. The only evidence presented at the trial was offered by the prosecution. Testimony of the witnesses established that, on June 7, 1985, the Rock Springs Police Department was advised of two burglaries which occurred during the late night of June 6 and early morning of June 7, 1985. The first was reported by the manager of the Super Wash Car Wash who had discovered, when he arrived at the premises, that the door jamb and lock on the door to the office building had been broken. The doors to a cabinet inside the building were open, and the manager discovered upon discussion with an employee that $62, which had been left in the cabinet the evening before, was missing.
The report of the second burglary was from the Ford Store. At about 6:30 A.M., an employee discovered that a plexiglass window on the upper portion of a garage door had been shattered. An examination of the interior of the building disclosed that one of their cars had been moved to a location near a garage door and that the keys to the car were still in the ignition. Further investigation disclosed that the keys to a cash register and a soda machine dispenser were missing from where they normally were kept. An employee at a store next door advised the police that he had found a set of keys in the flower garden of that business, and a later inspection of the flower garden revealed still another set of keys. The two sets of keys found were the missing cash register and soda dispensing machine keys. Pieces of the broken plexiglass window were examined for fingerprints, and Keller's fingerprints were found on the pieces of plexiglass.
More than six months later, a silent alarm was activated at White Eagle Motors at 4:10 A.M. on December 28, 1985. Officers who responded to the alarm discovered a broken window, and one officer was stationed under the window to prevent any person who might still be in the premises from escaping. The officers then notified the owner of the business and asked him to come to White Eagle Motors. When he arrived, the owner observed the broken window and saw a hydraulic jack, which normally was kept inside the building, outside the building. The owner then unlocked the door and, once he had deactivated the alarm, he and the officers began an examination of the premises. One officer observed a person, identified as Keller, lying underneath a pickup truck near the back part of the building. When the officers ordered Keller to come out from underneath the truck, Keller did not respond and had to be physically removed from beneath the truck. The police then arrested Keller and took him to the police station. Further investigation resulted in a determination that nothing had been stolen although the doors to a file cabinet were found open, and papers which had been in the cabinet had been moved.
One officer testified that, as Keller was being physically pulled from under the truck, Keller stated, "All right, all right, I'll get up." The officer testified that Keller appeared to have been "passed out" with no movement observable, but that he did not detect any odor of alcohol. When the police attempted to interview Keller, not long after he was taken to the police station, at approximately 4:40 A.M., they were unable to question him because Keller was unresponsive and apparently unconscious. A later attempt to interview him was made at about 2:15 P.M., and Keller then agreed to talk to the police. A cassette recorder was used but, due to a malfunction of the recorder, only Keller's waiver of his Miranda rights was recorded. When the investigator discovered that he had no record of the interview, he asked Keller to repeat the statement, but Keller refused.
The investigator's testimony about the interview included Keller's statement that he remembered being caught sleeping in a building but that he did not remember "much else" because he had been "pretty drunk" at the time. The officer also testified that Keller told him that a friend of Keller's had broken the window at White Eagle Motors; both he and the friend then entered the building; after they went inside, Keller did not know what happened to his friend; and Keller "simply laid down underneath the truck and went to sleep." When asked about Keller's statements concerning the burglaries of the Super Wash Car Wash and the Ford Store, the officer explained that Keller told him he had entered both buildings "looking for money," but he had left without taking anything because he didn't find anything. In the course of the investigation, a wallet was discovered that contained identification which indicated it belonged to the friend Keller had named, but efforts to locate that person were not successful.
At the instruction conference, the court received requested instructions and heard objections to proposed instructions. Counsel for Keller offered an instruction on the lesser included offense of criminal entry, to which the State objected. The argument of the defense was that if the conclusion of intoxication, either by drugs or alcohol, were reached, then the specific intent to commit burglary might not be found, in which event the jury should be permitted to consider the lesser included offense of criminal entry. The State argued in response that there simply was no evidence to justify the position taken by the defendant. The prosecution contended that, in his statement, Keller essentially had admitted the burglaries of the Super Wash Car Wash and the Ford Store, and that there was no reason to distinguish the situation at White Eagle Motors. The State's position was that the request for the instruction on a lesser included offense simply was not...
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