Lofton v. State

• Decision Date: 28 October 1971
• Docket Number: No. 3965,3965
• Parties: William A. E. LOFTON, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1169

489 P.2d 1169

William A. E. LOFTON, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 3965.

Supreme Court of Wyoming.

Oct. 28, 1971.

Harry Leimback, Casper, for appellant.

Clarence A. Brimmer, Atty. Gen. and William L. Kallal, Asst. Atty. Gen., Cheyenne, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN, and GRAY, JJ.

Mr. Justice PARKER delivered the opinion of the court.

William A. E. Lofton was convicted by a jury of aggravated robbery under § 6-66, W.S.1957, sentenced five to eight years in the penitentiary, and has appealed, charging three errors:

1. Refusing of defendant's challenge of the jury array;

2. Failing to exclude a pistol and money from evidence;

3. Instructing that the presumption of innocence was not intended to aid anyone who was in fact guilty to escape.

The ultimate facts which led up to the conviction are not in dispute. On Saturday, July 5, 1969, shortly after 10:20 p. m., two black males entered the North Center Mini Mart in Casper. After briefly walking around inside the store they approached the check stand and cash register. One identified as 'the man with the beard' drew a pistol from his jacket pocket, passed it in front of the store manager at the register, put it in his other pocket, holding it through his jacket on the manager, took out a paper bag, and told the store manager to 'fill it up.' After the manager had complied, taking the one, five, and ten-dollar bills from the drawer, the other man, described as wearing a green sweat shirt and not having a beard, had the manager lift the drawer for the twenty-dollar denomination bills. (After counting the register the following day, the manager reported approximately five hundred dollars was taken.) As they left the store, the man in the green sweat shirt told the manager, 'Don't call the police for ten minutes or we will kill you.' The manager notified the police, and as a result, they issued an all-points bulletin over the state radio. As received by the Newcastle police department, this contained the following information:

'State Item No. 2587. July 5, 1969. Pick up and hold for armed robbery, two male negroes, No. 1, Male, Negro, American, 25, six foot, 155 pounds. Wearing full beard and brown checkered type waist jacket and brown slacks. No. 2 Male Negro American, five feet 11, 150 pounds, clean shaven, wearing green sweat shirt. No further descriptions. Subjects should have about $500.00 in 20 dollar bills. Driving black station wagon with white plates. State and number unknown. Use code 10-50. Authority Casper Police Department. July 6, 1969, added information. Subjects possibly driving black Oldsmobile two door, Nebraska license number unknown.' ¹

At approximately 2 a. m., Sunday, July 6, Officer Hopkins of the Newcastle police saw a dark Oldsmobile with two black occupants driving through Newcastle, noticed that it had Nebraska license plates, followed it, calling another policeman to assist him, and apprehended the occupants, Terry Lee Anders and the defendant, at the edge of Newcastle, taking them to the jail. A search resulted in discovery of $251 in one, five, ten, and twenty-dollar bills on Lofton and $293 in similar denominations on Anders. Lofton said he had a billfold in the car, which had been locked by the officers and towed to the police department by a wrecker. The billfold was found to contain $32. The Casper Police Department was advised; and about 3:30 a. m. the Mini Mart manager, accompanied by two Casper policemen, left for Newcastle. After they arrived there at approximately 7 a. m. the manager positively identified Anders as the man with the beard and said that the two men appeared to be the same ones who had robbed him. He and the officers went out to the car, which Anders said belonged to him, and saw a green sweat shirt on the rear seat like that worn by one of the robbers. They opened the car with the keys which had been taken from Anders and found a loaded .32 caliber Smith and Wesson pistol under the driver's seat on the floorboard. They took possession of both the pistol and the green sweat shirt. Thereafter the Casper officers returned with the prisoners to Natrona County.

We have carefully reviewed defendant's argument that the trial court erred in refusing a challenge of the jury array. His initial premise, based on Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074, is that if he can demonstrate, (a) the existence of a substantial number of blacks in the community, and (b) their total or virtual exclusion from jury service, he has made out a prima facie case of discrimination and the burden then shifts to the State to prove the exclusion did not flow from discrimination. We think he misreads the Norris case, which on its face discloses that the reason for the decision was not the mentioned two criteria alone but rather that the court's review of the evidence showed a systematic exclusion of blacks from jury service solely because of their race and color. Likewise careful perusal of all other cases cited by defendant as authority ² indicates that each such opinion stems from evidence of systematic and intentional exclusion of some group and not merely from the fact that there are numbers of the group in the community and there is a lack of their members on the jury array. Mr. Justice Jackson stated the principle very well in Fay v New York, 332 U.S. 261, 284, 67 S.Ct. 1613, 1626, 91 L.Ed. 2043, when he said, 'It is fundamental in questioning the composition of a jury that a mere showing that a class was not represented in a particular jury is not enough; there must be a clear showing that its absence was caused by discrimination * * *.' ³ Thus, defendant's premise is faulty and the charge without merit. Even so, the matter should not be passed without noting the unfortunate method by which the attack on the jury array was launched, without any information as to the number of persons eligible for jury service and solely on a request for the court to take judicial notice of the census population together with affidavits based on surmise and recollection as to number of jurors on the panel during the past years, the places where residents lived, and their occupations. Although criticism of the administration of justice when bottomed on facts is salutary, it becomes detrimental if as here the only basis is suspicion and opinion.

As to the defendant's allegation that the jury array was contrary to various statutory requirements, he argues-noting the provisions of § 18-105, W.S.1957, which prescribes as a duty of the county assessor that he ascertain jury qualifications of each person assessed and from all private persons within the county whom he believes possess the legal qualifications of jurors, and of § 18-107, W.S.1957 (1971 Cum.Supp.), requiring the assessor to make up a jury list-that if these statutes were followed the jury list would include people owning real property, people owning only personal property, and people not on the assessment rolls at all. We cannot agree with his assumption concerning a listing of persons not on the assessment rolls since it overlooks the provisions of § 1-77, W.S.1957 (1971 Cum.Supp.), containing as one qualification of a juror that he be 'Assessed on the last assessment roll of the county.' All of the statutes relating to jurors must be considered in pari materia.

During the trial the court overruled objections which defendant interposed to the introduction in evidence of the .32 caliber pistol found by the officers on the floor of Anders' car and to the money which was taken from Lofton. These rulings are attacked as reversible error on three asserted grounds: (1) since the arresting officer did not have probable cause to make an arrest, the evidence was 'the fruit of the poisonous tree'; ⁴ (2) the determination that the defendant did not have standing to contest the unlawful search under the Fourth and Fourteenth Amendments to the United States Constitution was improper; and (3) the pistol was introduced without proper foundation.

We question the correctness of defendant's assertion that the arresting officers did not have probable cause to make an arrest. We recognize that an arresting officer must be shown to have been acting on facts constituting probable cause ⁵ and that the standards applicable to the factual basis supporting an arresting officer's probable cause assessment at the time of an arrest are as stringent as the standards applied with respect to a magistrate'sassessment, ⁶ but we cannot see any valid basis for defendant's claim that here probable cause was found only after an illegal arrest and search. Although defendant contends that the information possessed by the Newcastle police at the time of the arrest was even less than the information possessed by the Laramie police at the time of arrest and search in Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306, we view his position as without merit. In Whiteley the initial impetus for the arrest was an 'informer's tip,' and the court said, 91 S.Ct. at 1036:

'* * * the record is devoid of any information at any stage of the proceeding from the time of the robbery to the event of the arrest and search that would support either the reliability of the informant or the informant's conclusion that these men were connected with the crime. * * *'

Here the description of the men came from the store manager who was robbed and his description of Anders fit that of one of two black males earlier observed by a Casper policeman in an Oldsmobile with Nebraska plates. It is axiomatic that information from various sources can be considered in the aggregate when determining whether or not probable cause exists.

Defendant also insists, relying upon Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777, that as to the gun taken from the car the search was illegal because...