Lauthern v. State

• Decision Date: 09 February 1989
• Docket Number: No. 87-144,87-144
• Citation: 769 P.2d 350
• Parties: Claude Frederick LAUTHERN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 350

769 P.2d 350

Claude Frederick LAUTHERN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-144.

Supreme Court of Wyoming.

Feb. 9, 1989.

Steven E. Weerts, Sr. Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., John W. 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.

MACY, Justice.

Appellant Claude Frederick Lauthern appeals from his convictions of aggravated burglary, aggravated assault and battery, and attempted second-degree murder.

We affirm.

Appellant presents the following issues:

Issue I

Whether or not the trial court abused its discretion by allowing Mr. Nix to testify, or to provide an alternative remedy, after Mr. Nix was in the courtroom in spite of the court's order sequestering witnesses.

Issue II

Whether or not the trial court erred by failing to merge Appellant's charges or convictions of aggravated burglary and aggravated assault.

Issue III

Whether or not the introduction of evidence, in violation of Rule 404(b), W.R.E., deprived Appellant of a fair trial.

Appellant and Katherine Gunderman were married in 1978, and they divorced in August 1985. After the divorce, Ms. Gunderman frequently lived with appellant in his house in Casper, Wyoming, even though she had her own house in Casper from a previous marriage. Ms. Gunderman spent the night of January 25, 1986, with appellant, but, according to her, he kicked her out of his house on Sunday, January 26, 1986. Appellant and Ms. Gunderman both spent all day January 26 working at a VFW club. Ms. Gunderman left that club in the early evening and went to another VFW club in Casper where she met Alvin Rone, a man with whom she had been previously involved. Ms. Gunderman and Mr. Rone spent that night at Ms. Gunderman's house.

The testimony as to what occurred the following morning was conflicting, but the State's evidence, as accepted by the jury, indicated the following sequence of events. At approximately 9:30 a.m., Ms. Gunderman heard pounding on the door and realized that someone was trying to break into her house. She called the police. Appellant broke a window on the door and was able to reach inside to turn the lock, gaining entrance into the house. He shouted at Ms. Gunderman, " 'I'm going to kill you. I'm going to kill you.' " Ms. Gunderman told appellant to leave, and she picked up the telephone to again call the police. Appellant grabbed the telephone away from her, and he hit her on the head several times with it. He then grabbed a knife and threatened Ms. Gunderman with it, apparently striking at her but not connecting. Appellant also threatened to kill Mr. Rone.

Aroused from sleep by the commotion, Mr. Rone proceeded to the kitchen where appellant jumped at him. At this point, Ms. Gunderman ran out of the house and went to a friend's house to call the police. In describing the ensuing melee, Mr. Rone testified that he saw something in appellant's hand but that he remembered very little after that because he was knocked unconscious and did not regain consciousness until after he had arrived at the hospital.

Appellant fled before the police arrived at Ms. Gunderman's house. The police found the door kicked in, Mr. Rone lying unconscious in a pool of blood, and a brick and telephone on the floor near Mr. Rone's body. Mr. Rone was taken to the hospital. Pieces of Mr. Rone's hair were found on the brick and telephone during laboratory tests. Medical testimony at trial indicated that Mr. Rone had been seriously injured, incurring multiple traumas and fractures, including a skull fracture. The medical testimony indicated that many of Mr. Rone's injuries appeared to be the result of blows with a blunt object.

On February 3, 1986, a criminal complaint was filed in Natrona County court charging appellant with aggravated burglary and aggravated assault and battery, alleging the criminal entry and beating of Ms. Gunderman as a basis for the first charge and the threats to Ms. Gunderman with a deadly weapon as the basis for the second charge. A second complaint was filed on March 3, 1986, charging appellant with attempted second-degree murder of Mr. Rone. Appellant was bound over to district court, and an information was filed containing all three charges. At the conclusion of a five-day trial held October 20 through 24, 1986, the jury returned a verdict of guilty on all three counts. Judgment and sentence were entered on February 9, 1987. Appellant was sentenced to not less than five years nor more than seven years, suspended, on the aggravated burglary charge; not less than three years nor more than five years on the aggravated assault and battery charge, with credit for fourteen days served off the minimum and maximum terms; and not less than twenty years nor more than twenty-one years, suspended, on the attempted second-degree murder charge.

I

In his first issue, appellant argues that the district court abused its discretion by allowing Vernon Nix to testify for the State or by not providing another remedy, because Mr. Nix was in the courtroom during voir dire in violation of the court's sequestration order. We disagree.

Exclusion of witnesses is provided for by W.R.E. 615, which provides in relevant part:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may [issue] the order of its own motion.

(Emphasis added.) From its plain language, it is apparent that the rule contemplates sequestration only during the testimony of other witnesses. The rule is designed to "prevent the tailoring of evidence to conform to prior testimony and to assist the parties in detecting falsehoods and testimony which is less than candid." Towner v. State, 685 P.2d 45, 47 (Wyo.1984). See also Pixley v. State, 406 P.2d 662 (Wyo.1965).

In this case, Mr. Nix was in the courtroom inadvertently and without the knowledge of either party. We agree with the trial court's assessment of the situation when, in denying appellant's motion to prohibit Mr. Nix's testimony, it stated:

[I]n any event, I listened to the voir dire and I didn't hear anything that would give him even a hint of what the trial was going to be about. I thought both counsel conducted the voir dire in a very open ma[nn]er without regard to the facts of the case. I really don't see how he could have prejudiced himself by being present.

Even if we were to consider Mr. Nix's presence during voir dire a violation of the spirit of the rule, and it apparently was in violation of the court's order, we have previously stated that permitting witnesses to testify who have been in the courtroom in violation of a sequestration order is a matter addressed to the sound discretion of the court and that we would reverse only for an abuse of that discretion. Towner, 685 P.2d at 48; Whiteley v. State, 418 P.2d 164 (Wyo.1966). Here, there was no abuse of discretion, and the trial court properly allowed Mr. Nix to testify.

II

Appellant's second issue requires us to examine the question of double jeopardy/merger within the context of multiple punishments in a single trial. Courts, including this Court, have struggled with this often troublesome area of the criminal law. ¹ Recent decisions by the United States Supreme Court, however, and their adoption and application by this Court have resolved much of the confusion surrounding this issue.

The prohibition against double jeopardy is found in both the United States ² and Wyoming ³ Constitutions. In Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), the Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment applies to the states through the Fourteenth Amendment. In Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977), we stated that, although the respective double jeopardy provisions of the Wyoming and United States Constitutions are dissimilar in language, "they have the same meaning and are coextensive in application." See also Birr v. State, 744 P.2d 1117 (Wyo.1987). The double jeopardy prohibition affords three distinct protections to the accused. It prohibits a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense in a single trial. Schultz v. State, 751 P.2d 367, 369 (Wyo.1988); Birr, 744 P.2d 1117; Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). The third, or multiple punishment protection, is our concern in this case.

Appellant's contentions are essentially twofold. First, appellant argues that the State, in charging him with burglary, used the intent to commit an aggravated assault to elevate a criminal entry charge to burglary and, therefore, aggravated assault was an underlying felony to the burglary charge and conviction and the district court erred in not merging aggravated burglary and aggravated assault and battery. Second, although not as clearly presented, appellant seems to contend that the battery of Ms. Gunderman, employed by the State to elevate the charge of burglary to aggravated burglary, was part of the same transaction or same offense as the threatening of Ms. Gunderman with a knife, which formed the basis for the aggravated assault and battery charge, and, therefore, again the charges should have merged. We disagree as to both contentions.

Compounding the difficulty in this case is the fact that Wyo.Stat. §§ 6-3-301(c) (aggravated burglary) and 6-2-502(a) (aggravated assault and battery) (1977) are each single offenses that can be violated in several different ways, with a substantial overlap in the manner in which the two statutes can be offended. A concern which we perceive as inherent in appellant's argument is that the State simply segmented two methods of violating either of the statutes and charged them separately under the two...