Miller v. State, 4638
| Decision Date | 04 March 1977 |
| Docket Number | No. 4638,4638 |
| Parties | Leo Clifford MILLER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director, and David C. Marion, Senior Law Student, Defender Aid Program, Laramie, for appellant.
V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Frederick J. Harrison, Legal Intern, Cheyenne, for appellee.
Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.
This is an appeal from a guilty verdict and sentence imposed upon appellant for the crime of burglary. We find no merit in the appeal.
Appellant asserts that the failure of the trial judge to instruct on the effect of voluntary drunkenness upon specific intent as a necessary element of burglary abridged his right to a fair trial. We cannot reach this question because no objection was made to the instruction given, nor was one submitted, Moore v. State, Wyo., 542 P.2d 109, ,112; Sims v. State, Wyo., 530 P.2d 1176, 1181-1182; Rule 51, W.R.C.P. Additionally, there is no evidence in the record of defendant's intoxication. This claim appears only in defendant's summation, although the owners of the home who caught him in the process of the burglary were witnesses and could have been cross-examined upon this question. Absent any such evidence, an instruction upon this point would have been improper, Shoemaker v. State, Wyo., 444 P.2d 309, 310; Brown v. State, 80 Wyo. 12, 336 P.2d 794, 801; 4 Wharton's Criminal Procedure, § 538, p. 9 (C. Torcia Ed. 1976); 23A C.J.S. Criminal Law § 1312, pp. 762-764.
The second asserted error is the claim that the trial court should have appointed another attorney in whom he had confidence. Two attorneys were appointed for appellant. The first was Robert Koester, appointed August 22, 1975, the date the complaint was filed. Upon that date Koester conferred with appellant, proceeded with certain preliminary activities, and secured a setting for a preliminary hearing on September 11. On September 8, Koester was called to the jail where appellant demanded return of the complaint and advised Koester his services had been terminated. Based thereon the court allowed his withdrawal and appointed David F. Palmerlee as his attorney. Palmerlee appeared at the arraignment in the district court on September 29, when defendant acknowledged that he had received a copy of the information and that he knew the nature of the charges. The judge made a complete explanation of the charges and the consequences of a guilty plea or conviction. At that time appellant made no suggestion to the court of any dissatisfaction with his attorney and entered a plea of not guilty. The attorney at that time requested a reduction of the bond to $1000 and after argument the judge reduced the bond from $5000 to $2500, requiring corporate security.
On November 4, the court had a hearing, apparently at the behest of appellant. He indicated to the court that he was dissatisfied with his then counsel, and the judge advised appellant he would not appoint another lawyer and that he could represent himself. Appellant was advised that the Palmerlee appointment was still effective and that he would be at appellant's talbe for his use or advice. The court also ordered the county attorney to open his file and to make a copy of everything in the file for appellant, along with a resume of the testimony of the witnesses as he knew it.
On November 7 defendant executed a stipulation, admitting that he had received such copies, along with the names of the witnesses and summaries of their testimonies, and had been allowed to examine the photographs which the State intended to offer. The stipulation also included defendant's agreement that he had, both in open court and at the time of the execution of the stipulation, 'expressed his desire to represent himself,' although the court had appointed counsel to aid and assist him. The court had another hearing on November 12, when certain general instructions which the county attorney had drawn and advised he would offer were discussed, and the court at that time ordered the county attorney to deliver to defendant copies of any additional instructions he would offer at least seven days prior to...
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