Porth v. State

• Decision Date: 03 February 1994
• Docket Number: No. 92-263,92-263
• Citation: 868 P.2d 236
• Parties: Kevin Charles PORTH, a/k/a Steven Joseph Eger, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 236

868 P.2d 236

Kevin Charles PORTH, a/k/a Steven Joseph Eger, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 92-263.

Supreme Court of Wyoming.

Feb. 3, 1994.

Public Defender Program, Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Mary Beth Wolff, Asst. Atty. Gen., Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

Appellant Kevin Porth was convicted by a jury for conspiracy to commit aggravated robbery pursuant to WYO.STAT. §§ 6-2-401(c)(ii) and 6-1-303(a)(1988). He was sentenced to no less than seventeen years and no longer than twenty-five years at the state penitentiary. His appeal raises issues concerning co-conspirator testimony, warrantless arrest and sufficiency of evidence.

We affirm.

ISSUES

Appellant presents the following issues on appeal:

I. Did the trial court err when it required a witness whom the trial court and prosecution knew would exercise his fifth amendment right to remain silent to take the stand and have the jury observe that invocation?

II. Did the prosecution's disclosure during trial that the co-conspirator had been adjudicated guilty for the same offense as appellant, constitute reversible error?

III. Did the trial court err when it ruled that the proposed testimony of the private investigator was inadmissible hearsay?

IV. Did the trial court err by refusing to grant witness immunity to a material defense witness?

V. Did the trial court err when it denied appellant's motion to suppress all evidence obtained after the warrantless arrest of the appellant when the arrest was made without probable cause?

VI. Was sufficient evidence produced at trial by the prosecutor to prove beyond a reasonable doubt all the elements of the crime of conspiracy to commit aggravated robbery?

The state rephrases the issues as:

I. Whether the trial court properly allowed the testimony of the co-conspirator, Troy Marker, and properly found Mr. Marker available as a witness?

II. Whether appellant's arrest was based on sufficient probable cause?

III. Whether sufficient evidence was presented to sustain appellant's conviction?

FACTS

At about nine o'clock on the evening of May 26, 1992, two men wearing ski masks entered the Village Inn Restaurant in Laramie, Wyoming. One man carried a shotgun and the other carried a knife. Only two employees were in the restaurant at the time. Later, each described one of the men as large, muscular, with long dark hair which hung below the bottom of a dark ski mask, and wearing a dark t-shirt. Each described the other man as shorter, stout, also with long hair, wearing a yellow or orange ski mask and a reddish t-shirt.

The cashier was ordered by the larger robber to show him a safe located in the office. She was unable to open the safe and no money was taken. While the larger robber was in the office, the other robber warned the other employee not to go out the back door because she would be shot by another individual at the back door. The two men then took money from the cash register drawer and fled.

The police were called and a description was issued over the radio to officers in the area. Within minutes of the robbery, police were searching the area for two young-sounding, long-haired suspects armed with a sawed-off shotgun and a knife. The cashier reported that although it was raining heavily at the time, both robbers were dry. Neither employee heard nor saw a car either before the robbery or after the robbers fled.

The Travel Inn, a motel, is located next to the restaurant. There is a sidewalk from the motel to the front door of the restaurant which is protected by an awning. Since the robbers were dry and a car was not observed, the police contacted the manager of the motel and asked if anyone matching the robbers' general description was staying there. The manager confirmed that two young men matching the description had checked in at about 2:00 p.m. that day. Their registration card was signed Jim and Jesse James. It had an incomplete address and an incorrect car license number. The manager had corrected the license number and police confirmed it was registered to a Steven Eger, not to a James. Mr. Eger is also known as Kevin Porth.

The police went to the James' motel room and knocked. They observed someone look at them from the front window, but there was no answer. The police continued knocking for over fifteen minutes before two men emerged. The two were arrested immediately. One was not wearing a shirt and was permitted to reenter the room and put on a shirt. At that time police observed several knives. The men refused to permit a search, and officers closed the door to the room. A search warrant was obtained and executed.

Police recovered five knives, a sawed-off shotgun, shotgun shells, a green and black t-shirt, a purple shirt, a torn dark blue ski mask and a torn yellowish-orange ski mask, three gloves, a box of sunglasses, a driver's license and a birth certificate issued to a Mr. Porth, and a driver's license and a birth certificate issued to a Mr. Eger. Pieces of the ski masks were found in the toilet. A fingerprint was lifted from the chamber of the shotgun and later matched to Porth's fingerprints.

The two men were identified as Troy Marker and Kevin Porth a/k/a Steve Eger. Both men were charged with aggravated robbery.

This charge was later amended to conspiracy to commit aggravated robbery. Marker pleaded nolo contendere to the charge. Appellant proceeded to a jury trial and called Marker to testify that appellant had not been involved in the robbery.

Appellant's first four issues arise from the circumstances surrounding the testimony of his co-conspirator, Troy Marker. The day before trial appellant was informed that Marker would assert his Fifth Amendment privilege against self-incrimination if called as a witness because he had been advised his testimony could result in prosecution for the underlying aggravated robbery charge. Appellant requested that Marker's testimony be taken in court chambers out of the jury's presence. The prosecution objected, and the request was denied.

At trial, after the prosecution had presented its case, appellant then called Marker to the witness stand and although Marker asserted his Fifth Amendment privilege to almost all questions, he did answer four questions by appellant's defense counsel, his testimony being that appellant had not been involved in the robbery. Marker, however, did not relate all exculpatory testimony which he had previously told to a defense investigator. When cross-examined by the prosecution, Marker invoked his Fifth Amendment privilege.

Appellant requested that Marker be declared "unavailable" and the investigator's testimony be admitted under the hearsay exception of Wyo.R.Evid. 804(a)(5). The court found that Marker could not be declared unavailable since he had answered questions. Appellant had requested that the court grant Marker witness immunity. Observing that the court did not have this power, the court denied this request. Appellant was convicted and this appeal followed.

DISCUSSION

CO-CONSPIRATOR TESTIMONY

Appellant argues reversible error occurred when the trial court permitted Troy Marker to take the stand knowing the jury would observe Marker invoke his right to remain silent. Although it was appellant who called Mr. Marker, appellant now claims the prosecutor's cross-examination questions improperly prejudiced him by inviting the jury to draw adverse inferences from Marker's refusal to testify.

In support of this argument, appellant relies upon two United States Supreme Court opinions ¹ and three opinions of this court. ² These opinions are not particularly applicable to the issue at hand because they address a situation in which the prosecutor calls as a witness in his case-in-chief one who was involved with the accused in the criminal activity in question and who, the prosecutor knows, will invoke his right to remain silent. The evil of such prosecutorial conduct is that the jury will draw from the witness's refusal to testify adverse inferences that the witness and the accused are guilty. The issue at hand with which we are concerned, however, is not the same. Rather, here it was the accused's counsel, not the prosecutor, who knowingly called to the stand in the accused's case-in-chief the accused's associate to elicit favorable testimony that the accused was not involved in the criminal activity for which the associate had already been adjudged guilty.

Appellant claims that the application of the four criteria ³ identified in Jones requires a reversal of his conviction. We disagree.

The first criterion is whether the prosecutor called the witness so that the jury would draw the adverse inference of guilt from the witness's refusal to testify. Appellant ignores the essential feature of this factor, viz., the prosecutor must call the witness. Here, appellant, not the prosecutor, called the witness. Since this essential feature is missing, the four-criteria analysis set forth in Jones need not be made here.

Although Wyoming has only addressed this issue when the prosecutor has called the witness, neither the state nor appellant discussed case law from other jurisdictions when the issue involved a defense witness who refused to testify. Our own research indicates some jurisdictions prohibit the defense from calling a witness the counsel knows will invoke the privilege. People v. Dikeman, 192 Colo. 1, 555 P.2d 519, 520 (1976); People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297, 310-11 (1966), cert. denied, 385 U.S. 1019, 87 S.Ct. 752, 17 L.Ed.2d 557 (1967); State v. Nunez, 209 N.J.Super. 127, 506 A.2d 1295, 1298 (A.D.1986); Commonwealth v. Greene, 445 Pa. 228, 285 A.2d 865, 867 (1971); Horner v. State, 508 S.W.2d 371,...