Mares v. State, 4041

• Decision Date: 25 August 1972
• Docket Number: No. 4041,4041
• Citation: 500 P.2d 530
• Parties: Harold MARES, Appellant, v. STATE of Wyoming, Appellee.
• Court: Wyoming Supreme Court

Page 530

500 P.2d 530

Harold MARES, Appellant, v. STATE of Wyoming, Appellee.

No. 4041.

Supreme Court of Wyoming.

Aug. 25, 1972.

Paul B. Godfrey, Cheyenne, for appellant.

Clarence A. Brimmer, Atty. Gen., Richard A. Stacy and Bert T. Ahlstrom, Asst. Attys. Gen., Cheyenne, for appellee.

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

McINTYRE, Chief Justice.

Harold Mares has appealed from a conviction of first degree murder in connection with the deaths of two men, John Marshall and James Bonson.

It is undisputed that three men perpetrated an armed robbery of Spirits Lounge in Cheyenne, Wyoming, shortly after midnight on February 10, 1970. Many customers were in the place of business. The holdup resulted in Marshall and Bonson being killed by the robbers. Also, the bartender, Harry Laughlin, and a customer, Steve Meares, were wounded by being shot. Each of the robbers wore a ski mask and dark clothing. Each was armed with one or more guns.

There was evidence tending to show that one man, identified at the time of trial as Mares, went behind the bar while the other two were positioned in the vicinity of either end of the bar. According to such evidence, the man behind the bar had a pistol in each hand; the second man had a pistol; and the third man had a sawed-off shotgun. The masks worn were described as having large open areas about the mouth and eyes; and the gunman behind the bar, who shot the bartender and Marshall, was described by some of the witnesses as having a 'light' or 'tender-looking' mouth which was distinctive.

Two attorneys were appointed by the trial court to defend Mares. The record indicates they did an exceedingly thorough and efficient job, advancing every possible defense. Also, it is admitted counsel for defendant received a great deal of aid from the Legal Aid Office in Denver, under the 'Reciprocal Act.' As stated in appellant's appeal brief, an investigator was made available by the Legal Aid Office in Denver and he was able to provide enormous help in locating witnesses and the like.

Appellant's court-appointed attorney on appeal, who was one of the attorneys who defended at his trial, has presented appellant's appeal in an exceptionally capable manner. It is our opinion that Mares would not have had better representation either at the trial level or on appeal had he had unlimited funds. The mere fact that defendant was found by a jury to be guilty of the charge against him must not be construed as any indication that he had inadequate representation at his trial. Likewise, our finding (as will be more fully explained) that the trial was free from reversible error cannot be construed as an indication of inadequate representation on appeal.

Counsel for appellant suggests there was a great deal of confusion and inconsistency in the testimony of eyewitnesses. In fact, he expresses the belief that the only point upon which all witnesses agreed was that the bar was held up on the night in question. Of course, it is to be expected that eyewitnesses who were present at the time of the crime would have differing versions of what happened and which robber did what. That is not at all unusual.

The undisputed facts are such that every person who participated in the holdup is guilty of first degree murder, regardless of which robber or robbers actually did the killing. Therefore, we will not try to reconcile all the testimony of all the witnesses and we will not attempt to decide whether Mares in fact fired the particular bullets which killed Marshall and Bonson. It is quite clear from the evidence that all three men did a considerable amount of shooting, some of it aimed at particular persons and some of it being merely random shooting. The question which the jury had to decide was whether Mares was one of the three holdup men.

Without delineating at the outset the various points on appeal which are argued on behalf of the appellant, we will take them one at a time and indicate why we say defendant's trial was free from reversible error.

Suppression of Evidence

It is undisputed in the evidence that Mares, who had been sentenced to a term in the Colorado State Penitentiary, escaped from the custody of Colorado officials and became a suspect in a series of armed robberies in Denver and in the Spirits Lounge robbery in Cheyenne on February 10, 1970. On February 12, 1970 Denver police officers received information he was at the home of Carol Ortega in Denver. They went to the Carol Ortega home with a warrant for Mares' arrest.

According to the testimony of one of the Denver officers, the Ortega home was under surveillance when Mrs. Ortega started to leave in her automobile. She was stopped and was told the officers were looking for Mares. At first she denied he was there. In the meantime, however, other surveillant officers saw Mares walk out the back door, then turn around and go back inside. Mrs. Ortega then agreed to return to her home and to allow the officers to enter and see if Mares was there. The officers found Mares sitting on a bed in a bedroom and arrested him. He was turned over to two officers who were remaining outside.

Knowing others were involved in the robberies which Mares was suspected of, officer Brannan of the Denver police then talked further to Mrs. Ortega. At Mares' trial Brannan testified:

'I told her I would like to search the house. I was looking for not only other men but for guns and shot gun and she said there was no one else in the house and there was no guns in the house as far as she knew. None that she knew of. I told her I was ready to go down and get a warrant for this search and, however, she stated that she would rather I did it right then and there and not have to come back. She didn't want us coming back. She wanted it done then.'

Before searching further, Brannan claims he advised Carol Ortega of her right to refuse the search. He testified, however, that she did not want the police returning and wanted it over.

According to Brannan's testimony, he then returned to the bedroom where Mares had been arrested, being covered by another detective. He said he was looking for other men and in so doing looked in the closet by the bed where Mares had been sitting. The closet door was open; he parted clothing in the closet and immediately saw a gun lying in plain view on top of a bag of clothing. The gun was three to five feet from where Mares was sitting when arrested.

Counsel for appellant admits the gun was shown ballistically to have been the gun which fired the slugs subsequently removed from Harry Laughlin and from the body of John Marshall. Thus, there is no dispute about it being at least one of the murder weapons.

Defense counsel made a timely motion for suppression of the evidence obtained in the Carol Ortega home, including the gun. On appeal it is claimed the trial court erred by not suppressing such evidence. We disagree. The testimony of officer Brannan was sufficient for the court to believe Carol Ortega, owned of the home and the person concerned, voluntarily consented and gave her permission for the search. ¹

Aside from that, however, Mares has no standing to object to the search nor to the seizure of the gun. The case is not controlled, as counsel for appellant seems to think, by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 695. We are not here concerned with the limits of a search which is merely incident to a lawful arrest. The important consideration is that Mares had no ownership in the home that was searched nor in the gun that was seized.

As recently as June 26, 1972 the United States Supreme Court gave recognition to the principle that an objector must have an interest in connection with the searched premises sufficient to give rise to a reasonable expectation of freedom from governmental intrusion. In Combs v. United States, 408 U.S. 224, 92 S.Ct. 2284, 33 L.Ed.2d 308, the record was found to be barren of the facts necessary to determine whether petitioner had such an interest. The court therefore remanded that case for further proceedings to determine whether petitioner had an interest in the searched premises sufficient to be protectible.

The record in connection with Mares' trial is complete and shows very clearly that Mares had no ownership or interest in the searched premises. There was no reasonable expectation on his part of freedom from governmental intrusion. In other words, there has been no showing of any rights or interest in Mares which would prevent the consent and permission of Mrs. Ortega from being wholly effective.

The suppression of the product of a Fourth Amendment violation can be successfully urged only by one whose rights are violated by the search-not by one who is aggrieved solely by the production of damaging evidence. Northern v. United States, 9 Cir. (1972), 455 F.2d 427, 430; State v. Nickerson, 13 N.C.App. 125, 185 S.E.2d 326, 327; People v. Hill, 22 Mich.App. 91, 177 N.W.2d 220, 222.

The rule seems well established that a mere guest on the premises of another has no standing under the Fourth Amendment to object to the unlawfulness of a warrantless search where the owner has given his consent thereto. State v. Cromeans, 106 Ariz. 173, 472 P.2d 42, 43; Spencer v. People, 163 Colo. 182, 429 P.2d 266, 269.

It has been held that one who lacks legitimate presence on premises has no standing to object to a search. Palmer v. State, 14 Md.App. 159, 286 A.2d 572, 578 (1972). Mares of course, by reason of his status as an escapee, was not legitimately on the premises of Carol Ortega. Instead of having a reasonable expectation of freedom from governmental intrusion, he had every right to expect that.

Regarding the gun (admitted murder weapon) which was found in the room where Mares was arrested, counsel for Mares has repeated many times in his brief and in oral argument that the gun belonged to Bugsie DeHerrera.

The defendant did not testify at his trial....