Newell v. State

• Decision Date: 05 April 1976
• Docket Number: No. 4508,4508
• Citation: 548 P.2d 8
• Parties: Larry NEWELL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 8

548 P.2d 8

Larry NEWELL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4508.

Supreme Court of Wyoming.

April 5, 1976.

Rehearing Denied May 24, 1976.

Wyatt R. Skaggs, Asst. Public Defender, Natrona County, Casper, signed the brief and appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Donn J. McCall, Legal Intern, Cheyenne, signed the brief and Greald A. Stack, Deputy Atty. Gen., and William T. Sullins, Deputy County Atty., Casper, appeared in oral argument on behalf of appellee.

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

RAPER, Justice.

The appellant-defendant was charged with the burglary of Roy's Town and Country Pharmacy, located in Casper, Wyoming. The defendant and the county attorney, with approval of the district judge, waived trial by jury. After bench trial, the defendant was found guilty and sentenced to serve a term in the Wyoming State Penitentiary.

The owner of the drug store testified as to the circumstances of the break-in during the night of June 24-25 that he discovered Defendant chose to testify on his own behalf and Claimed that he arrived in Casper, Wyoming, early on the afternoon of June 24. He testified that he stopped in a Gulf station and asked the attendant where he could buy some speed. He was told that he could buy it at the Wonder Bar. He then went to the Wonder Bar to find some drug peddlers from whom he could purchase speed. He claimed he met a girl at the bar, left with her about 6:00 p. m., went to Casper Mountain for a while and then returned to the Wonder Bar about 7:30 p. m. He could not recall the girl's name, first or last. He said that he noticed some guys that looked like possible drug dealers enter the bar around 11:30 p. m. He went over to talk to them around 12:30 a. m. regarding the purchase of speed and was advised they had some to sell. The defendant further testified that he stayed until the bar closed about 1:00 a. m. and was very intoxicated when he left with the purported peddlers.

the following morning and identified a handgun and holster missing from the store, along with a number of drugs. An officer from the Jackson, Wyoming police department testified as to his interview of the defendant on the morning of June 26 and search of the motor vehicle which defendant claimed as his. The vehicle had dealer license plates of different numbers on front and rear. The items stolen from the pharmacy were discovered in a pillowcase in the car trunk, except for the pistol and holster which were under the front seat.

The defendant's testimony went on further to explain that when they reached a car in the parking lot three or four blocks away, one of the individuals opened the auto trunk and showed him the stolen items. The alleged dealers picked out five or six bottles which they supposedly thought contained benzedrine and dexedrine. The dealers, according to the defendant, had difficulty picking out what he wanted, so he offered to buy the entire lot. The asking price was $150.00 but the defendant ended up beating them down to $80.00 for the entire contents, including the pistol and holster. No names of the sellers were mentioned in the drug deal and defendant asserts he was unaware that the drugs were stolen. Only a fuzzy description of the three alleged peddlers was given by the defendant. He could recall no useful information that would lead to their identity. He also explained that he was primarily interested in purchasing the benzedrine and the dexedrine and he was not interested in the other drugs. He wanted the pistol included in the deal so that he could sell it to cover the cost of the drugs. He testified that he used the benzedrine and dexedrine before he was apprehended. The druggist testified that the benzedrine is commonly known as speed, a prescription drug used in the treatment of obesity and retarded children.

The defendant testified he returned to his motel, took the drugs into his room and slept until 3:30 or 4:00 a. m. the same morning. He then put the drugs in a pillowcase taken from his motel room, placed it in the trunk of what he called his car and drove to Cody, through Yellowstone Park and into Jackson. He spent the night of June 25-26 in Jackson and was planning to leave in the morning, when he was contacted by the officer of the Jackson police department.

During the course of its cross-examination, the State queried the defendant as to where he had obtained the automobile. Defendant's counsel objected. During argument to the court, the State indicated it was prepared to offer testimony that the car was stolen and registered to a Nebraska resident, not the defendant. The county attorney made it clear to the court that the purpose of offering this testimony at an appropriate time was to test the appellant's credibility, if the defendant on questioning claimed the vehicle as his own, which he had repeatedly stated to others and during his testimony. Defense counsel's objection to that line of interrogation was on the ground that it would involve an inquiry As presented by the defendant, the issues are claimed to be:

into irrelevant misconduct on the part of the appellant and violate his right to remain silent with respect to a collateral matter. However, after the objection was overruled on the ground it was asked only to test credibility, without hesitation, the defendant testified that, 'I stole it,' and proceeded to identify from whom and where it was stolen in Nebraska. The credibility testing therefore never came into play.

1. Whether the court erred by allowing the evidence of prior criminal misconduct of the defendant?

2. Whether the verdict is against the weight of the evidence?

3. Did the court err by not granting a judgment of acquittal at the close of the State's direct evidence?

The problem of the first issue was telegraphed early by the filing of a pretrial motion in limine by the defendant, asking for an order of the court to prevent any testimony relating to the fact that defendant allegedly had in his possession a stolen motor vehicle and cross-examination of the defendant by the State in that regard. The grounds with respect to cross-examination were that it 'would force defendant to incriminate himself' and 'would be inflammatory, prejudicial, irrelevant and distract the jury from its purpose.' The motion was never ruled on. This revealed to the trial court, in anticipating a jury trial, that the motor vehicle was probably stolen or in any event there were incriminating circumstances surrounding defendant's possession. We gather from remarks of the court that if the trial had taken the course of being before a jury, the trial judge, while himself possessed of knowledge amounting to an admission that the car was stolen or raising that suspicion, would have kept that information from the jury.

The same line was followed at the time the defendant objected to the county attorney's question, 'Where did you get this car?' During the argument, defendant's counsel stated that, 'This line of questioning * * * would necessarily, possibly force the Defendant to incriminate himself,' in a Nebraska trial involving the vehicle. Should it be any different that the case is court-tried? Can the trial judge disregard that information and be uninfluenced in the factfinding process which he, as the factfinder, must undertake?

The trial judge recognized the problem and dangers when, following argument, he made the observations following:

'Now, as far as the first objection of prior offenses and that sort of thing is concerned, I think I am quite familiar with not only the Garrison (Gabrielson) Case but with that whole principal (sic) and have honored it many times. I think it goes essentially to jury trials and their conduct and the concept that while such things may be rather highly relevant, never the less (sic) Courts have come to the conclusion that they cannot adequately trust a jury to separate that out and refrain from finding somebody guilty in the instant case because they were bad people in other cases. I think that is not a reason that is cogent in this non-jury case.' (Bracketed material added.)

Without trying to deal with all its exceptions, it can be said that, ordinarily, evidence of prior misconduct of the accused is inadmissible in criminal proceeding. Dorador v. State, Wyo.1974, 520 P.2d 230, and Gabrielson v. State, Wyo.1973, 510 P.2d 534. (The full title of this latter case reveals that Gabrielson was also known as Garrison and explains the trial court's frequent reference to the 'Garrison case.') We consider it a risky practice in a trial before a jury to permit the sort of inquiry that was here made and this was recognized by the trial court. As said in Rosencrance v. State, 1925, 33 Wyo. 360, 366, 239 P. 952, 953:

"It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those See the introduction to Jerskey v. State, Wyo.1976, 546 P.2d 173, for a general discussion of the right to silence, protected by the Fifth Amendment to the Constitution of the United States.

charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle that a party is not be convicted of one crime by proof that he is guilty of another."

The motive of the State in its desire to test the credibility of the defendant is questionable. Even though the court allowed it, impeachment was aborted by the defendant's admission that the car was stolen; the whole procedure was a practice in futility. The motion in limine and the objection made was an admission of or created a strong suspicion of guilt. These are made in the usual course of a criminal jury trial outside the hearing of the jury. It is impossible, however, to make objections of this sort outside the hearing...