Moss v. State, 3991
| Decision Date | 26 January 1972 |
| Docket Number | No. 3991,3991 |
| Citation | 492 P.2d 1329 |
| Parties | John Pius MOSS, Appellant, v. The STATE of Wyoming, Appellee. |
| Court | Wyoming Supreme Court |
D. P. Svilar, of Boyer & Svilar, Lander, for appellant.
Clarence A. Brimmer, Atty. Gen., Frederic C. Reed, Asst. Atty. Gen., Cheyenne, for appellee.
Before McINTYRE, C. J., and PARKER and McEWAN, JJ.
The defendant, John Pius Moss, is appealing from convictions in Fremont County of second degree murder; and assault and battery with intent to commit rape.
By way of the case's history, we should explain that Moss was first charged with killing Mrs. Eva Clara Holmes in an attempt to perpetrate rape. The defendant moved to dismiss the information on the grounds that he was an enrolled member of the Northern Arapahoe Indian tribe; that the offense charged was first degree murder and the alleged act was committed in Indian country, thereby providing exclusive jurisdiction in the United States District Court. The state district court granted defendant's motion and dismissed the information.
Thereafter, the county attorney of Fremont County filed a bill of exceptions in this court to the ruling of the district judge. As indicated in our opinion in State v. Moss, Wyo., 471 P.2d 333, we sustained the exceptions and held the trial court's finding that the offense was committed in Indian country erroneous.
Although counsel for the defendant argues the state district court did not have jurisdiction to try defendant after our court had sustained the bill of exceptions, he concedes Moss was never in jeopardy when charges were at first dismissed by the district court. A jury had not been impaneled or sworn to try the case when the motion to dismiss the information was granted.
On appeal, the defendant makes 20 assignments of error. On oral argument, however, his attorney chose to argue only those assignments designated as points 2, 3, 7, 9 and 13. We cannot assume there was any intent to waive the other assignments. However, it does appear counsel for defendant considers the assignments argued most important. We likewise consider them the assignments most deserving of special treatment by us.
After we sustained the exceptions previously brought to us by the county attorney, two indictments were returned against defendant by a grand jury. One indictment charged Moss with the murder of Mrs. Holmes; the other charged him with assault and battery on Eva Marie Holmes (the decedent's minor daughter) with intent to commit a felony, i. e., murder and rape. The assignment of error made on behalf of defendant under point 2 is that the trial court erred when it did not dismiss the indictments against Moss.
Sections 7-288 to 7-291, W.S.1957, have to do with the right of a prosecuting attorney to take bills of exception to the supreme court in criminal cases. Appellant seeks to find comfort in § 7-291 because it states the judgment of the court in the case in which the bill was taken 'shall not be reversed nor in any manner affected.'
Even if we assume the order of the district court which dismissed the state's original information was a judgment, it is still apparent from our opinion in State v. Moss, Wyo., 471 P.2d 333, that nothing was reversed. The exceptions were sustained because the trial court had erroneously found the offense to have been committed in Indian Country. Appellant shows us no reason or authority for barring the proceedings by grand jury indictment, where it is made clear and conceded by defendant that he was never in jeopardy when the state's information was dismissed. 1
Appellant claims prejudicial error because the trial court denied a change of venue to another county. A change was sought by defendant prior to trial on the grounds that bias and prejudice existed against Indians and the appellant in Fremont County; and that there had been a vast amount of publicity about the case which was unfavorable to the defendant.
A separate hearing was held on defendant's motion for a change of venue. After the hearing, the court reserved ruling on the motion until after the voir dire examination of the jurors. It then denied the motion.
It is pointed out in 1 Devitt & Blackmar Fed. Jury Inst., 2d Ed., § 5.03, pp.98-99, that normally a motion for a change of venue on account of claimed prejudicial publicity cannot be passed upon logically until the extent of the prejudice, if any, is determined upon the voir dire examination.
Unfortunately, the voir dire examination of jurors in this case is not a part of the record on appeal. We therefore have no way of knowing whether the existence of prejudice was or was not reflected in the voir dire examination. We can only assume the trial judge made a correct appraisal of the situation and that he did not abuse his discretion in denying the motion for a change of venue after the voir dire examination of the jury had been completed.
In State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 666, it was held not sufficient merely to show prejudice against the accused. The court said it must appear the prejudice was so great or general as to prevent him from receiving a fair and impartial trial. The court also said, whether a change of venue should be granted is ordinarily within the sound discretion of the trial court. 2
This court stated in State v. Vines, 49 Wyo. 212, 54 P.2d 826, 829, when affidavits of opinions or conclusions are alone relied on, they furnish no basis for granting a change of venue. It was pointed out that interest and indignation of the people are the natural result of shocking crimes and do not of themselves require a change of venue.
Defendant has failed to show an abuse of discretion when the trial court denied his motion for change of venue.
The assignment made by appellant under point 7 is that the trial court erred by not permitting the testimony of a psychiatrist concerning the administration to defendant of tests of truth by use of sodium pentothal, sodium amytal or a 'truth serum.'
The only authority cited in support of this assignment is People v. Jones, 42 Cal.2d 219, 266 P.2d 38, 43. There is nothing in that case, however, which is helpful to appellant. It merely held testimony of a psychiatrist could be offered to show the psychiatrist's opinion that the accused was not a sexual deviate and was not capable of having the necessary intent to be lustive with a child. The court expressly held statements made by the accused while subject to truth drugs are inadmissible to prove the truth of the matter asserted.
We find nothing in the record before us or in the proceedings on appeal to indicate the defendant made an offer of proof or in any other why justified use of the testimony of a psychiatrist pertaining to tests made upon the accused with a truth serum. In the absence of a showing to the contrary, we can only assume the purpose would have been to present to the jury statements suppesedly made by the accused while subject to truth drugs. Such statements would have been self-serving and inadmissible. 3
Appellant's point 9 on appeal is that the trial court erred when it admitted a tape recording which contained statements of the defendant. The statements were made during the course of an interrogation by the county and prosecuting attorney the morning following the murder of Mrs. Holmes.
It is the contention of appellant that the statements were obtained in violation of the constitutional rights of the accused; the defendant was not adequately warned of his rights; that he did not have an attorney present during the interrogation; also that he did not understand the questions which were asked him and did not knowingly, intelligently and voluntarily waive his rights.
Courts have not ruled out the right and duty of law officers to investigate crimes such as murder and rape. In Dickey v. State, Wyo., 444 P.2d 373, 381, we took cognizance of the general standards imposed by decisions of the United States Supreme Court in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 1765, 12 L.Ed.2d 977; and in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. As stated in Dickey, we realize there can be no 'custodial interrogation' of the accused until he has been warned of his constitutional rights.
The interrogation of Moss was admittedly a custodial interrogation and we therefore look to see whether the warnings given him, prior to the statements made by him, meet the standards prescribed in Escobedo and Miranda. As set out in the Miranda opinion, at 384 U.S. 479, 86 S.Ct. 1630, 16 L.Ed.2d 694, an accused must be warned as follows:
1. That he has the right to remain silent, that anything he says can be used against him in a court of law.
2. That he has the right to the presence of an attorney, and if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.
Before any statements were made by Moss in the interrogation we are now concerned with, the county attorney warned him as follows:
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