Mayer v. State

• Citation: 618 P.2d 127
• Decision Date: 20 October 1980
• Docket Number: No. 5273,5273
• Parties: Randy MAYER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 127

618 P.2d 127

Randy MAYER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5273.

Supreme Court of Wyoming.

Oct. 20, 1980.

Michael Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, and Neil J. Short, Casper, signed the brief and appeared in oral argument on behalf of appellant (defendant).

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division and John W. Renneisen, Law Clerk, Criminal Division, Cheyenne, signed the brief and Vicci Colgan, Legal Intern, appeared in oral argument on behalf of appellee (plaintiff).

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

After a jury trial, appellant-defendant was convicted of first-degree murder. He appeals from the judgment and life sentence resulting therefrom, contending that: (1) statements made by defendant were improperly admitted into evidence, (2) a post-death photograph of the victim was improperly admitted into evidence, and (3) the trial court improperly refused to instruct the jury to disregard a remark made by the prosecutor in the rebuttal portion of the closing arguments.

We affirm.

ADMISSION OF STATEMENTS INTO EVIDENCE

At about 3:00 a. m. on March 25, 1979, appellant was interviewed at the Natrona County Sheriff's Office. He related the incidents of that night as they pertained to the death of Wesley Stone, the homicide victim, and he signed a written statement concerning the same. Additionally, the interview was recorded on tape; and, after it was transcribed the next morning, appellant made corrections on it and signed it. Appellant was advised of his constitutional rights as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but he contends that his statement was not given "voluntarily, knowingly, and intelligently" because he "was seventeen years of age, intoxicated, was suffering from physical injuries incurred from a severe beating, was emotionally overwrought and had been deprived of the counsel of his mother."

In the statements, appellant related that he had been on a double date during the evening hours of March 24, 1979. At about 12:15 a. m. on March 25, 1979, he drove to the Safeway parking lot on CY Avenue in Casper where his date had parked her automobile. Milton Brummett then opened appellant's car door and began to attack him. The two fought, and appellant was beaten. He then went to the Hall of Justice to make a complaint. He was given a form to fill out and bring back the following Monday. Feeling that his complaint was not properly received by the police, he drove to his home and obtained his 12-gauge shotgun and a box of shells. When he returned to his automobile with the gun and shells, his mother followed him and got in the automobile with him. Another automobile came along side of his automobile and stopped. Appellant thought that Brummett was driving it. He loaded the gun and shot and killed Stone, the driver of the automobile.

The test of admissibility of a confession is whether or not under the totality of the circumstances the waiver of constitutional rights and subsequent statements were given voluntarily, knowingly and intelligently. Jarrett v. State, Wyo., 500 P.2d 1027 (1972). The trial court here conducted a hearing on appellant's motion to suppress the statements to determine their admissibility. Thereafter, the court ruled that the statements were admissible inasmuch as they were made "* * * voluntarily, after thorough advice of constitutional rights, and that the defendant knowingly, intelligently, and voluntarily waived his rights * * *." Thus, the trial court ruled that the prosecution had carried its burden of proving the same by a preponderance of the evidence. Raigosa v. State, Wyo., 562 P.2d 1009 (1977); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

A review of the record supports the ruling of the trial court. The interviewing officers testified that at the time of arrest, before and during the questioning, appellant was coherent, cooperative, able to understand, and willing to answer all questions. He did not appear to them to be intoxicated. The Miranda warnings were given by him by the officer who transported him to the Hall of Justice, and again by the officer taking the statement before doing so. Appellant expressed understanding each time. Prior to questioning, he was asked if he wanted his mother present and he answered "no." (Appellant's mother had been brought to the Hall of Justice by a deputy sheriff immediately after appellant was taken into custody.) The evidence does not reflect that the injuries to appellant were so severe as to deprive him of his capacity to comprehend and appreciate the nature and consequences of the statements. Kennedy v. State, Wyo., 422 P.2d 88 (1967); Lonquest v. State, Wyo., 495 P.2d 575 (1972). The same can be said of his degree of intoxication-.09% on the blood alcohol test administered about one hour and fifteen minutes after the interview began. Appellant had a scrape on his chest, a split lip and a lump by his right eye "approximately a quarter or half-inch high, about the size of a 50 cent piece" and a black eye. He was very angry. As he said in his statement, "I got madder and madder and I grabbed my shotgun and a box of shells." The excessive speed used by him in driving to the Hall of Justice for the purpose of making a complaint, his impatience at having to fill out a complaint form and at having to return on Monday to sign it before a police magistrate, the act of mistaking Wesley Stone for Brummett and shooting Stone as a result of the mistake reflect his anger. His occasional sobs while being booked and during the interview and the very words of the statement, i. e., "Right after I shot, Man I rolled the window up and just freaked ... because I realized what I had done" (punctuation not supplied), reflect the emotion of remorse. These emotions, in themselves, however, do not reflect the inability to comprehend or appreciate the nature and consequences of his actions.

Appellant also recognized the pertinency of the testimony of Stone's companion and its potential as adverse to appellant. Immediately after the homicide, appellant offered him "a thousand dollars to testify for him." After the taped statement was transcribed, appellant took 45 minutes to review it for accuracy. ¹ He made nine changes in it. One of the changes was to correct the information originally given to the effect that he had consumed two "very light screw drivers" during the evening. In making the correction he wrote, "I had a lot more to drink than I advised Mr. Benton." Mr. Benton was the officer who conducted the interview. Appellant's companion did not consider appellant as "drunk."

Appellant acknowledges that "any one of the factors of youth, deprivation of parent counsel, emotional turmoil, intoxication, and pain as a result of physical injury, standing alone would not per se render the statements involuntary." In this he was correct. Mullin v. State, Wyo., 505 P.2d 305 (1973); People v. Hocking, 15 N.Y.2d 973, 259 N.Y.S.2d 859 (1965); People v. Taylor, 16 N.Y.2d 1038, 265 N.Y.S.2d 913 (1965); Hernandez v. State, Wyo., 587 P.2d 1094 (1978); Lonquest v. State, supra; Mortimore v. State, 24 Wyo. 452, 161 P. 766 (1916). But, we cannot agree with appellant's contention that the several factors taken together are sufficient in this case to mandate a reversal of the trial court's determination that the appellant gave his waiver and the statement voluntarily, knowingly and intelligently.

There may be instances in which any one or more of the factors of age, intoxication, physical injuries, lack of parental contact, or mental trauma would be sufficient to evidence a waiver of constitutional rights or a confession as involuntary. An examination of the cases cited by appellant in support of his argument reflects the circumstances in each are far more aggravated and severe than those in this case. The trial court relied upon the factual situation as presented to it by the evidence, and it considered the totality of the circumstances surrounding the transaction. Such evidence is gauged against such standard supports the findings of the trial court. Lonquest v. State, supra; Jarrett v. State, supra. ²

ADMISSION OF PHOTOGRAPH INTO EVIDENCE

Appellant contends that a photograph of victim's head and shoulders taken at the coroner's office, and depicting the marks made by the shots was unduly prejudicial and without probative value. It was admitted into evidence over appellant's objection. The objection was argued out of the presence of the jury. The court said:

"* * * Well, since the issue of self defense has been raised, at least through the opening arguments, ³ it seems to be one thing the Jury will have to assess in evaluating a self defense claim, as to whether or not the magnitude of the forces in defense was comparable to the magnitude of the threat, and it seems to me the photo does have some bearing on that question, and considering that it is the only photo of this type, which the Prosecutinon (sic) intends to introduce, I think it does have some probative value on that issue, which would outweigh its prejudicial effect. Therefore, I will overrule the objection and allow the exhibit in."

Appellant then requested the court to instruct the jury that the photograph was admitted for a limited purpose, and that emotion, passion and sympathy are not to come into play in deliberating in this case. The court did so in the words requested by appellant.

The general law relative to admission of photographs into evidence is summarized in Reeder v. State, Wyo., 515 P.2d 969, 972 (1973) as follows:

"Generally the question of admission of photographs is left to the reasonable discretion of the trial court. Linn v. State, Wyo., 505 P.2d 1270 and 1276, and cases cited; DICKEY V. STATE, WYO., 444 P.2D 373 AT...