Murray v. State, 83-62

• Decision Date: 02 November 1983
• Docket Number: No. 83-62,83-62
• Citation: 671 P.2d 320
• Parties: Peter Kole MURRAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 320

671 P.2d 320

Peter Kole MURRAY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-62.

Supreme Court of Wyoming.

Nov. 2, 1983.

Leonard D. Munker, State Public Defender and Sylvia Lee Hackl, Appellate Counsel, Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Dennis C. Cook, Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

Appellant was charged with attempted sexual assault felony murder under §§ 6-4-101 and 6-4-314, W.S.1977. ¹ After having been found guilty of that charge by a jury on January 18, 1983, he was, by judgment and sentence of the court, sentenced to life imprisonment. He appeals from the judgment and sentence.

We will affirm.

The issues raised on this appeal are, as stated by appellant:

1. "The trial court erred in denying appellant's motion for change of venue, which motion alleged that extensive pre-trial publicity made it impossible to select a fair and impartial jury."

2. "The trial court erred in denying appellant's motion for judgment of acquittal since there was insufficient evidence upon which the jury could base a verdict of guilty beyond a reasonable doubt."

FACTS

On July 18, 1982, during the late evening hours, Cleo Fuller was the victim of a sexual assault and beating that twelve days later resulted in her death. At the time, Mrs. Fuller was 82 years of age and lived alone in her home in Cokeville, a small community in western Wyoming. She had gone to bed and fallen asleep about 10:30 p.m. when she was awakened by a noise first at the front of her house and then at the back door. She opened the back door and a young, strong man grabbed her and dragged her through the kitchen to the living room where she was brutally beaten. She offered him money and her rings, but he said he was going to sexually assault and then kill her. It was dark, Mrs. Fuller was half asleep, in shock, did not have her glasses on, and could not identify her assailant. She scratched him hard on the back and then, at the first opportunity, kicked him hard in the groin. After being kicked, he gave up and left.

Mrs. Fuller struggled, crawled and dragged herself across the room to her telephone, and called a neighbor across the street. The neighbor received the call between 11:20 and 11:30 p.m. He dressed and came to her house. There were no lights. He went back across the street and roused another neighbor. The police were called, and the two neighbors then returned to Mrs. Fuller's house.

An ambulance arrived with three medical technicians. Gregg Goodman, an officer with the Cokeville Police Department arrived. They and the two neighbors were in the house when Mrs. Fuller described the assault and attempted rape and said the assailant "should have scratch marks on his back and * * * arms," because, "I dug him as hard as I could."

In a later tape-recorded interview before her death, she said she scratched her assailant with her right hand on his back, and then, after being asked how many times she had scratched her assailant, she stated as follows "CLEO: Yes, I think so, two or three times

"GREGG: Two or three times

"CLEO: That's right, you see I, he was here, I reached around there and I scratched like that, just as hard as I could"

Cleo Fuller suffered broken teeth, bruises about her face and arms, fractures of 3, 4, 5 and 6 ribs on the left and 1, 2, 3, 4, 5 and 6 ribs on the right. She died twelve days later as a result of the beating.

Appellant, at the time of the assault, was twenty-four years of age and had resided in western Wyoming in the Bridger Valley area most of his life. He had worked in law enforcement in several western communities over a period of about four years. He was employed by the Cokeville Police Department approximately three months before this homicide.

Appellant had rented the house in which he was living in Cokeville from Cleo Fuller. He had done yard work and other small jobs for her. His house was approximately a block and a half from Cleo Fuller's house and about two blocks from the house of Gregg Goodman. A young man, Ted Lamb, was living with appellant at the time of this incident. He had come to Cokeville a short time before to be involved in an undercover narcotics investigation.

On the evening of July 18, 1982, appellant had been invited to dinner at the home of Gregg Goodman. Appellant arrived around 7:00 p.m., too late for dinner, and he, Goodman, his wife and another young lady, sat around drinking alcoholic beverages. Appellant drank about one-half of a fifth of whiskey. About 10:30 p.m., the young lady at Goodman's home decided to leave. Appellant followed her to her car, had a short discussion with her, propositioned her, was refused, and returned to the Goodman house. Appellant left the Goodman house between 10:45 and 11:00 p.m.

Between 11:20 and 11:30 p.m., appellant's roommate, Ted Lamb, and another young lady, returned to appellant's house. They found the front door broken open, entered the house and searched but could not find appellant. Bathwater had been drawn, was still in the tub, and there were indications that someone may have bathed. Lamb searched outside the house and still could not find appellant. On reentering the house, the young lady advised Lamb she had heard a noise in the woodbox. They opened the woodbox and found appellant lying on his back staring up, his eyes glassy, completely nude. He motioned them to close the lid on the woodbox, and they did so. A short time later they reopened the cover of the woodbox and appellant was still gazing straight ahead, apparently in some distress. He was helped out of the woodbox onto his bed. He was unsteady, his eyes were glassy, he was uncommunicative, and Lamb and the girl were concerned that he had overdosed on drugs. They, therefore, called for an ambulance to come to the house.

A highway patrolman heard the call for an ambulance for appellant and, at about the same time, 12:03 a.m., he had received a call advising him that Cleo Fuller had been assaulted in her home. The highway patrolman went first to appellant's home. Appellant ordered the patrolman and others out of his house. They left and the ambulance was dispatched to Cleo Fuller's home.

The two homes were not far apart in the small community of Cokeville. By this time there were a large number of persons involved who at one time or another were in both the Cleo Fuller home and appellant's home. There were two neighbors, three medical technicians, an officer from the Cokeville Police Department, appellant, his roommate, his girlfriend, her mother, and others. All of them were called as witnesses and testified at the trial. In essence, they testified that appellant had said he had been stuck with a needle at Goodman's home. He pointed to a place under his arm that was sore. He appeared to have overdosed on drugs. He appeared also to be intoxicated. Fresh blood and scratches were observed on his back, his left shoulder, his arm, and his lower back. These were photographed, and the photographs were received in evidence. When asked about the scratches, he became very angry and had no explanation for how they had occurred. He could not account for his whereabouts from about 10:45 p.m. until approximately 11:30. At one point he told an officer who interviewed him that he "could have done it." During one conversation, one of the officers stated that Mrs. Fuller had offered her assailant money and appellant responded, "Yeah." At another point, the highway patrolman said that appellant had accused another person of raping the seventy-year-old woman (referring to the eighty-two-year-old Mrs. Fuller). This was disputed by other testimony. There was bathwater in the tub and indications that someone had bathed. A towel taken from appellant's residence contained a hair that matched Cleo Fuller's hair. The T-shirt appellant had worn the night of the assault was freshly laundered, but blood stains on the left shoulder were confirmed in a laboratory examination.

DENIAL OF MOTION FOR CHANGE OF VENUE

The trial of this cause was held at the county seat of Lincoln County, Kemmerer, Wyoming, which is about forty miles south of Cokeville. The trial commenced on January 10, 1983, with jury selection. Appellant's counsel had moved for a change of venue because of extensive publicity given the case which appellant claimed would prevent the selection of an unbiased, fair, and impartial jury. The motion for change of venue was taken under advisement by the court and denied following completion of the selection of the jury. Appellant claims this was error.

Rule 21, W.R.Cr.P., provides that the prosecution of a crime shall be had in the county where the offense is committed. ² Rule 23(a), W.R.Cr.P., provides that venue may be changed if there exists prejudice against the defendant so great that he cannot obtain a fair and impartial trial in the county where the offense occurred. ³

The defendant (appellant in this case) carries the burden of proof and must demonstrate that there exists within the county prejudice so great that the defendant cannot obtain a fair and impartial trial in that county. Collins v. State, Wyo., 589 P.2d 1283 (1979). In determining whether such prejudice exists, consideration should be given, before jury selection, to:

a. The nature and extent of the publicity.

If the court finds from the motion, the materials and exhibits filed with it, and any testimony received before commencement of the trial, that the degree of prejudice necessary exists, then venue should be changed at that stage in the proceedings in accordance with the further provisions in Rule 23(b) and (c), W.R.Cr.P. ⁴ If not satisfied that there was a showing of prejudice so great as to preclude a fair trial, the court may deny the motion or take it under...