King v. State
| Decision Date | 20 September 1989 |
| Docket Number | No. 88-297,88-297 |
| Parties | Ike KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Steven E. Weerts, Sr. Asst. Public Defender, and Mike Cornia, Appellate Counsel, of Public Defender Program, for appellant.
Joseph B. Meyer, Atty. Gen., John Renneisen, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
Appellant Ike King was convicted by a jury of aggravated assault and battery as proscribed by Wyo.Stat. § 6-2-502(a)(ii) (1977). On appeal, he presents numerous contentions of error in the proceedings below relating to the conduct of the prosecutor and the jury, the introduction of certain evidence, the assessment of various costs upon him as part of his sentence, the propriety of a jury instruction, and the failure to grant a new trial.
We affirm but modify the judgment and sentence with respect to costs.
The specific issues raised by appellant, as rephrased in the form of questions for clarity, are as follows: 1
1. Was the trial court's denial of appellant's motion for a new trial error?
2. Was plain error committed when the trial court failed to grant a mistrial after prosecutorial misconduct took place which denied appellant a fair trial?
3. Was plain error committed during the closing argument when the prosecutor questioned why appellant had not called certain witnesses to testify?
4. Was it error to allow Patricia Koryn's preliminary hearing testimony to be used at trial when the State did not use reasonable means to subpoena her?
5. Did the trial court err in failing to regulate or stop note-taking by the jury?
6. Could the trial court legally and constitutionally require appellant to repay the costs of his representation by the public defender?
7. Is the statutory scheme allowing for the recoupment of the costs of prosecution unconstitutional, and was the assessment of certain costs reasonable?
8. Did the trial court err by failing to suppress evidence and by allowing the State to augment the record concerning the motion to suppress?
9. Did the trial court err in instructing the jury and in allowing testimony on intimidation of a witness?
The evidence produced at trial, with conflicts properly resolved in favor of the State, Griffin v. State, 749 P.2d 246 (Wyo.1988), revealed the following facts. At 10:30 p.m. on January 29, 1988, Officer Mark Abraham of the Riverton police department issued a traffic ticket to appellant for driving without an operable license plate light. In addition to the inoperable license plate light, Officer Abraham initially stopped appellant for exceeding the speed limit and changing lanes without signaling. At this time, appellant was driving a green 1968 GMC pickup. After being stopped, appellant got out of his pickup, walked back to Officer Abraham, and handed him his driver's license. As a safety precaution, Officer Abraham walked over to appellant's pickup and shined his flashlight through the window into the interior in order to determine whether other occupants were in the vehicle. He observed a club in the pickup which he described at trial as resembling an axe or pick handle wrapped in black tape. After ascertaining that no other occupants were in the vehicle, Officer Abraham issued the citation, and appellant left.
Later that evening, sixteen-year-old Guy Muggelberg, accompanied by his girl friend, Sheila Baldes, was driving his car east down West Main Street in Riverton when a car suddenly pulled out directly in front of him, causing him to brake sharply and swerve to avoid a collision. Muggelberg pulled along side the other vehicle, which he described as a "[b]rownish gold, midsized Oldsmobile." Both drivers rolled down their windows, and a verbal exchange occurred in which Muggelberg called the other driver "Jeff" and suggested that he should drive more carefully. Muggelberg testified that he referred to the other driver as Jeff "[b]ecause I knew that he was a King, but I didn't--I wasn't sure if it was Ike or Jeff." Muggelberg and Baldes testified that the other driver responded by stating that his name was Ike, not Jeff, and that, if Muggelberg had a problem or something to say, he should pull over.
Muggelberg pulled over to the side of the street, climbed out of his car, and started walking toward the Oldsmobile. As Muggelberg approached the Oldsmobile, the driver came out of the car and struck Muggelberg behind the right ear with a club, which Muggelberg described as being two to three feet long, tapered, and wrapped in black tape. Muggelberg stumbled back toward his car, and the assailant brandished the club in the air, threatening and shaking it at Baldes who had come out of Muggelberg's car to assist Muggelberg.
Muggelberg and Baldes drove away, located Officer Abraham's police patrol car, and reported the incident to Officer Abraham at about 11:40 p.m. Muggelberg and Baldes informed Officer Abraham that the assailant was either Jeff King or Ike King. Muggelberg was acquainted with appellant's son and, therefore, was somewhat familiar with the King family. Muggelberg was subsequently transported by ambulance to Riverton Memorial Hospital where he received eight stitches in his head. Officer Abraham ran a check on the license number of the Oldsmobile, as reported to him by Baldes, and discovered that the car was registered to appellant's sister, Patricia Koryn. The following day, Muggelberg saw appellant, recognized him as his assailant, and reported this information to Officer Abraham.
A criminal complaint charging appellant with aggravated assault and battery was filed on February 1, 1988. After a preliminary hearing, appellant was bound over to the district court, and an information containing the same charge was filed on March 2, 1988. After various pretrial proceedings, appellant's trial began on July 18, 1988.
Appellant's defense, as presented at trial, consisted in part of the alibi that he had been with Linda Kennah at her home at the time of the assault. Appellant also attempted to discredit the identification of himself as the assailant, asserting, at least obliquely, that his brother, Jeff, was the actual perpetrator of the assault. Kennah's testimony at trial supported appellant's alibi defense. She stated that appellant came to her house on January 29, 1988, around suppertime, that sometime before 10:00 p.m. he left to buy some snacks, and that he returned shortly after 10:30 p.m., staying until after midnight.
The preliminary hearing testimony of appellant's sister, Patricia Koryn, was admitted at trial. Koryn initially testified at the preliminary hearing that she had not allowed appellant or anyone else to drive her Oldsmobile on the evening of January 29, 1988. Upon cross-examination by the State, however, she admitted that she had in fact given the car keys to appellant on the night in question. Appellant's testimony regarding the Oldsmobile was that Jeff King wanted to use the car that evening and that appellant borrowed the car for Jeff because Koryn would never allow Jeff to drive the car. Appellant testified that, after going to his sister's house and borrowing the Oldsmobile, he immediately gave possession of the car to Jeff, and he (appellant) returned to Kennah's home. Appellant called Jeff as a witness. After answering some preliminary questions as to his name, residence, et cetera, Jeff invoked the fifth amendment 2 privilege against self-incrimination and refused to answer questions material to his brother's trial.
At the conclusion of the trial, the jury returned a verdict finding appellant guilty of aggravated assault and battery. Post-trial motions for a new trial and for a judgment of acquittal after jury verdict were denied after a hearing. On September 21, 1988, appellant was sentenced to a term of not less than one and one-half years and not more than six years at the Wyoming State Penitentiary. Additionally, appellant was ordered to pay $50 to the crime victims compensation fund, to make restitution to the victim in the amount of $198.88, to repay the State $2,750 for the services of the public defender, and to repay Fremont County $1,081.51 for the costs of prosecution. This appeal was perfected. Additional relevant facts will be discussed as they relate to the specific issues presented.
On August 1, 1988, counsel for appellant filed a W.R.Cr.P. 34 motion for a new trial premised upon several grounds, including newly discovered evidence. The motion was denied after a hearing, and the denial of that motion with respect to newly discovered evidence is urged as error upon appeal.
The alleged newly discovered evidence consisted of a post-trial statement made by Jeff King to appellant's trial counsel that he (Jeff), and not appellant, had committed the assault. In an affidavit submitted with the motion, and in testimony at the motion hearing, appellant's trial counsel related that, after the verdict had been returned, he was standing outside the courthouse when Jeff drove up. Counsel testified that he walked over to Jeff's car and informed him of the verdict. According to the affidavit, the two discussed sentencing and appeal possibilities for appellant, and then this exchange occurred:
8. I then said to Jeff King, "Did you do it?". Jeff King's response was, "Yeah, Ike's not guilty.". I then said to Jeff King, "Why don't you just tell the truth?". Jeff King said, "Then [the prosecuting attorney] will just want to put me in prison.". I then said, "Yes, but you did do it.". Jeff King said, I then said to Jeff King, "Why don't you just tell the truth?". He said, "I've done all I can do.". I then said to Jeff, . He then asked when he could see Ike and I said probably tomorrow and then Jeff King drove off.
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