Patterson v. State

• Decision Date: 29 November 1984
• Docket Number: 84-13,Nos. 83-261,s. 83-261
• Citation: 691 P.2d 253
• Parties: Scott PATTERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Charles SPOON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 253

691 P.2d 253

Scott PATTERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Charles SPOON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 83-261, 84-13.

Supreme Court of Wyoming.

Nov. 29, 1984.

Rehearing and Motion for Stay Denied Jan. 8, 1985.

Sylvia Lee Hackl, Appellate Counsel, State Public Defender, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Barbara L. Lauer, Student Intern, Laramie, for appellants.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Patrick Day, Legal Intern, Cheyenne, for appellee.

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

ROONEY, Chief Justice.

Appellants appeal from judgments and sentences rendered on a jury verdict finding appellant Patterson guilty of possession of a controlled substance (marijuana) with intent to deliver the same, and finding appellant Spoon guilty of delivery of a controlled substance (marijuana), both in violation of §§ 35-7-1014(d)(x) and 35-7-1031(a)(ii), W.S.1977.

Appellants present three issues on appeal:

1. Did the court err in refusing to excuse a juror for cause on motions of the prosecution and of both appellants?

2. Did the court err in denying appellants' motions to suppress evidence?

3. Did the court err in denying appellant Patterson's motion for judgment of acquittal?

Inasmuch as we find error, under the particular facts of this case, in the trial court's refusal to excuse a juror for cause, we reverse and remand for a new trial. Although not dispositive of this case, we find no error with reference to the other two issues, and we address these issues only because they are bound to arise in connection with the new trial.

" * * * It is proper for the supreme court to decide incidental questions which are bound to arise again in the case. * * * " Rocky Mountain Oil and Gas Association v. State, Wyo., 645 P.2d 1163, 1167 (1982).

CHALLENGE FOR CAUSE

The simple deciding factor in this case is the existence of bias or prejudice on the part of juror Taylor as reflected in his answers to questions addressed to him on voir dire. Section 7-11-105, W.S.1977, provides in pertinent part:

"(a) The following shall be good cause for challenge to any person called as a juror on any indictment:

* * *

* * *

"(ii) That he * * * is biased or prejudiced for or against the accused."

Juror Taylor's answers in this respect were contradictory and ambiguous. To determine evidence of bias or prejudice, the answers must be examined as a whole without undo emphasis on any one portion of them. The following answers do indicate such bias or prejudice:

1. On inquiry by the State:

"I would like to state my views about use of marijuana. I don't think the laws are strict enough, I think the court system is far too lenient in their sentencing. I don't feel that I could be impartial in my verdict."

"No I don't think [I could be impartial] if it comes down to whether it was close to whether he was innocent or not guilty, I think I would lean to vote guilty."

" * * * if I feel it is clearly innocent, I would vote innocent, but if I think a slight shadow of doubt I think I would vote guilty."

"I don't think so." (That I ought to serve on this jury panel).

"I think so." (That it would be in the interests of justice that I be excused because of my strongly held feelings).

2. On inquiry by appellant Patterson:

" * * * a little bit of evidence that said innocent and a little more said guilty, I would vote guilty."

"I don't think so." (That I could be a fair and impartial juror).

"No." (I would not want a juror in my frame of mind sitting as a juror if I were the defendant).

3. On inquiry by appellant Spoon:

"I would have a tendency not to believe them." (If they used drugs).

"Yes, I would." (Intrinsically favor the non-drug users even if the judge would give me certain rules of law to apply to certain factual situations that will be presented).

"It might." (Such favoring of non-drug users might interfere with my ability to apply the law as given to me in this case and with my ability to be fair and impartial).

The following indicates the lack of such bias and prejudice:

1. After the State's inquiry and after challenge by the State, in which both appellants joined:

"THE COURT: Mr. Taylor, the critical issue is whether you could decide this case based upon the evidence and instructions upon the law here. Could you base your decision on that?

"MR. TAYLOR: I could listen to the evidence, and based on the evidence, but I think to where I vote not guilty or "THE COURT: I am not asking you that. I am asking you if you could follow the law as given to you in the instructions?

innocent or not guilty, I think if there was the slightest question in my mind, that he was guilty, I think I would vote guilty.

"MR. TAYLOR: Yes, could do that.

"THE COURT: And you would base your decision based upon that and the evidence here in the case?

"MR. TAYLOR: Yes."

2. During inquiry by appellant Patterson:

Answered "no" to question as to whether or not he had any problem with the "premise of law" requiring the burden "upon the prosecution to prove the defendant guilty beyond a reasonable doubt."

3. After challenge by appellant Patterson:

"THE COURT: Mr. Taylor, you earlier indicated you would decide the case based solely upon the law and the evidence here in court, what would be unfair or lacking in impartiality in that case?

"MR. TAYLOR: Well, I already have strong feelings about marijuana, and I think that has to, you know, have something to do with the way I think, make decisions.

"THE COURT: Well, it is still your position though you would decide the case based solely upon the evidence?

"MR. TAYLOR: Upon the facts, yes, sir."

The contradictions are obvious. The juror will decide the case on a preponderance of the evidence rather than on the lack of reasonable doubt, but he will decide the case under the instructions which will direct to the contrary. The last quotation, supra, reflects a change by the juror in the court's question relative to reliance solely on the evidence. His answer expanded "evidence" to "facts." Perhaps he meant facts presented in the case, but perhaps he meant more. The juror steadfastly maintained his prejudice against those involved in marijuana, even to the extent of asserting that such would make him partial and a juror whom he would not want to decide a case in which he was a defendant. Yet he agreed to act only on the evidence and according to the instructions.

Ordinarily, we defer to the action of the trial court in connection with jury selection. Parks v. State, Wyo., 600 P.2d 1053 (1979); Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); Reynolds v. United States, 98 U.S. 145, 8 Otto 145, 25 L.Ed. 244 (1879). In this instance, however, the bias or prejudice of juror Taylor was definitely evidenced. There is no indication that he realized that the instructions would require proof beyond a reasonable doubt by the prosecution for conviction instead of his avowed intention to apply the standard of preponderance of the evidence. His stated position left nothing to speculation. It established the fact that he would use a preponderance of the evidence standard, and the court's questions relative to following instructions were not sufficiently specific to establish a disposition on the part of the juror to do other than his stated intention. The error is manifest. Although it is not controlling, it is of note that all parties, including the prosecution, challenged juror Taylor for cause.

Nor in this instance was the denial of the challenge for cause a harmless error. Appellants objected to the ruling, did not accept the jury because of it, exhausted their peremptory challenges, and designated the juror against whom they would have exercised the peremptory challenge necessarily used against juror Taylor. Parks v. State, supra.

The court's refusal to grant the challenge of juror Taylor for cause in effect reduced the allowable peremptory challenges of the parties. Rule 25(b), W.R.Cr.P., provides in pertinent part:

"(b) Peremptory challenges.--In every case, * * * the state shall be entitled to the aggregate number of peremptory challenges to which the defendant or defendants are entitled. * * * If the offense Appellants were "entitled to" sixteen peremptory challenges over and above their unlimited number of challenges for cause. They were improperly forced to use a peremptory challenge in lieu of a challenge for cause.

charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges. * * * "

MOTION TO SUPPRESS EVIDENCE

Appellants' motions to suppress certain physical evidence seized at the time of their arrest were denied, and their objections at the trial to the introduction of such evidence were overruled. The record reflects the following:

On May 6, 1983, officers of the Casper Police Department initiated an undercover drug operation. Officer Lee Strope was wired with a hidden transmitter, and he proceeded to the Wonder Bar in Casper, where an informant had indicated he could meet some men who would sell him marijuana. Officer Burgen followed Strope in one car, while Officers Bachert and Anderson followed in another, listening to broadcasts over the transmitter which was wired to Strope.

Officer Strope contacted John Eshelman and Ken Brooks at the Wonder Bar. They were unable to sell him any marijuana, but they knew a dealer who might have some. They called the dealer, but he was unavailable. Anxious to help Officer Strope, Brooks and Eshelman accompanied him in his car to the home of Fred Daniels, a man whom they believed would have some marijuana. Daniels did not have any marijuana either, but he knew a dealer he felt could supply them with marijuana, so Daniels joined Eshelman, Brooks and Strope in Strope's car.

Followed by Officers...