Linn v. State
| Decision Date | 02 February 1973 |
| Docket Number | No. 4048,4048 |
| Citation | 505 P.2d 1270 |
| Parties | Ted LINN et al., Appellants (Defendants below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
John E. Ackerman, Casper, for appellants.
Clarence A. Brimmer, Atty. Gen., Frederick C. Reed, Asst. Atty. Gen., Cheyenne, J. F. Mahoney, Casper, for appellee.
Before McINTYRE, C. J., and PARKER, McEWAN and GUTHRIE, JJ.
Justice McINTYRE (Chief Justice at time of oral argument) delivered the opinion of the court.
The three appellants named in the title of this case were jointly charged in Teton County as accessories before the fact to the first degree murder of Larry Olinger. Upon demand of the defendants, a bill of particulars was furnished by the prosecution. It charged the defendants, in furtherance of a common design, encouraged, hired or otherwise procured the murder of Olinger in the State of Nevada. The common design was alleged to have been entered into at the home of defendant Ted Linn in Jackson, Wyoming, between August 1 and August 8, 1967.
Pursuant to the request of defendants, a change of venue was granted to Natrona County. Trial was had and all three defendants were found guilty by the jury. Sentence was imposed and defendants have appealed. Their court-appointed attorney, John E. Ackerman, alleges 17 trial errors and claims the conviction of each defendant should be reversed.
One of the admitted participants in the making of plans at the home of Linn and one of the actual murderers was Robert Leroy Lindblad. He was given immunity by the state and freely related on the witness stand all details of a plan to murder two persons, Robert Stucker and Larry Olinger. Lindblad was on the stand several days. During that time he described in horrible detail how Stucker and Olinger were gotten to Nevada; how they were there murdered; and how their bodies were buried in a shallow grave. According to him, Ted Linn and Glenn Lucas participated in the actual double murder.
It is clear and undisputed in the evidence that Goldsmith was out of the state and not present when plans were made at Linn's home at the time specified in the bill of particulars. According to Lindblad, it was Linn who suggested he had an idea where they might get some money and approached this idea: If Lindblad could knock a couple of Linn's friends out, he could receive a portion of approximately $20,000. Lindblad testified the $20,000 was to be split three ways-between Lindblad, Linn and Lucas.
There is no evidence that Goldsmith, who was out of the state, took part in the making of a deal at Linn's home at the time in question. In its brief the state says Linn was the master-mind of the operation. The testimony was that Linn supposedly called Goldsmith by long distance telephone and a recording was made of the conversation. Lindblad testified he afterwards listened to the recording but the name Goldsmith was not mentioned during the conversation.
The trial judge ruled the identification of Goldsmith was insufficient and the jury was instructed to consider the evidence of what happened at Linn's home only as evidence against Linn and Lucas and not as evidence against Goldsmith.
The state admits in its brief that the case against Goldsmith was fairly tenuous, except for the testimony of a witness, Keith Hanson. It is claimed there were casual and occasional references which tended to connect Goldsmith, but these 'were hardly enough to justify a prosecutor in proceeding against him as an accessory before the fact.' It is then claimed Hanson supplied the vital information.
Hanson was incarcerated in the county jail at Jackson at the same time Linn, Lucas and Goldsmith were. He testified to certain conversations with them. Concerning Goldsmith, he testified Goldsmith had stated he knew he could not collect life insurance (which was the prosecution's motive theory). According to Hanson, Goldsmith said his partners (Stucker and Olinger) had something on him, 'so he had to take care of them.'
With respect to the charge, as specified in the state's bill of particulars, Goldsmith is tied into it primarily by this question and answer in Hanson's testimony:
Hanson had been talking to Linn and Lucas. In the testimony set out above he failed to specify where his information about Linn being contacted came from. More importantly, the witness failed to connect the contact referred to by him to the Linn-home arrangement which the prosecution was standing on, according to its bill of particulars.
On the whole, the testimony against Goldsmith was somewhat tenuous and weak, as the attorney general seems to recognize. However, the weight to be given to Hanson's testimony and the inferences to be drawn therefrom were for the jury, providing nothing in the trial happened which might unduly influence the jury in its determination.
Before trial began, counsel for the defendants requested a separate trial for each defendant and insisted rather strenuously that defendants could not receive a fair trial if they were tried together. On appeal it is argued that, on at least 15 separate occasions, the jury had to be instructed to disregard, as to one or two defendants, statements made by another defendant. This became so frequent and common in the trial that the judge would caution the jury merely by saying: 'The same admonition.' Or, 'Please remember the admonition at all times.'
During the course of trial, when a witness was relating a conversation with Lucas following the homicides, defense counsel renewed his motion for a severance. It was denied. The court at that time instructed the jury that the testimony being offered would be admissible only as against Lucas.
In Sims v. United States, 132 U.S.App.D.C. 111, 405 F.2d 1381, 1382, it was held, under the rule relating to prejudicial joinder, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice appears. Rule 14, Fed. Rules Crim.Proc., was cited. See Rule 13, W.R.Cr.P.
We think sufficient reason for granting a severance as to Goldsmith did appear in the trial of this case. As previously indicated, he was not present when plans were made at the home of Linn in Jackson for the murder of Stucker and Olinger. Also, Goldsmith had no part in execution of the plan made in Linn's home during the first week in August, 1967. At least 11 times conversations with either Linn or Lucas were testified to, with the court instructing the jury to disregard as to Goldsmith.
The long and detailed testimony given by Lindblad with respect to the actual killings and carrying out of the plan made in Jackson was bound to have an effect on the jury; and with Goldsmith's name being frequently mentioned, it would be difficult for the jury to disregard testimony as to him in cases where it was supposed to do so.
On the other hand, Linn and Lucas were present and participated in making the plan for murder, according to Lindblad's testimony. They were also present and took part in carrying out the plan, if Lindblad's testimony was to be believed. These were the damaging and crucial facts in the prosecution's case against Linn and Lucas. Although witnesses often testified to conversations with Linn when Lucas was not present, or to conversations with Lucas when Linn was not present, statements made in these conversations were relatively unimportant insofar as proof of the crime charged is concerned.
Counsel for the defendants relies largely on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for his argument that each of the defendants should have had a separate trial. In that case, however, Evans and Bruton were jointly tried for armed postal robbery. Evans did not testify but confessed to a postal inspector. The inspector testified at the trial concerning Evans' confession. Since Evans did not testify, it was held the introduction of his confession denied Bruton the right of confrontation and cross-examination, which could not be cured by instruction to the jury.
It would appear the Evans confession was a major part of the evidence against Bruton, if not the principal evidence in that case. Such is not the situation in the joint trial we are dealing with, insofar as Linn and Lucas are concerned. Disregarding what was said at Linn's home, where both Linn and Lucas were present, the Linn conversations and Lucas conversations which where testified to did not, for the most part, pertain to the question of whether a plan for murder was made at Linn's home. Such conversations related primarily to subsequent matters. Linn and Lucas are not charged with murdering Olinger. They are charged with being accessories before the fact to his murder. The evidence indicates they were together on that.
As far as details of the actual murder are concerned, there is no substantial contradiction of the fact that Stucker and Olinger were murdered in Nevada and their bodies buried in a shallow grave-pretty much as described by Lindblad. We fail to see where either Linn or Lucas was prejudiced by a joint trial of the three defendants named.
Rule 11(b), W.R.Cr.P., permits the joinder of defendants with this language:
We clearly are dealing with a case where three defendants are alleged to have participated in the same act or transaction-a plan for murder made at the home of Linn in Jackson. And, as a general rule, defendants can be indicted or informed...
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