Prime v. State
| Decision Date | 06 January 1989 |
| Docket Number | No. 86-203,86-203 |
| Citation | 767 P.2d 149 |
| Parties | Rick PRIME, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.
In the context of its peculiar facts, leading to a conviction of aggravated robbery in violation of § 6-2-401(c)(ii), W.S.1977 (June 1983 Repl.), 1 this case presents questions previously addressed by this court. Error is asserted by Rick Prime because the other participant in the robbery was brought before the jury and, at that time, asserted his constitutional privilege not to testify by refusing to take the oath of a witness. Additional errors are asserted attributable to the failure to provide counsel in connection with voice exemplars and a photographic array by means of which identifications were made by some witnesses; the use of testimony from witnesses who arguably had been hypnotized for the purpose of attempting to enhance their recollections; and the failure to give certain proffered defense instructions. We conclude that these claims of error are controlled by prior cases decided by this court, and either no error was committed or, in the context of all the circumstances, any error was not prejudicial. The judgment and sentence entered in the district court is affirmed.
The appellant, Rick Prime (Prime), states the following issues in his brief:
The State of Wyoming restates the same issues in this way:
On the night of April 21, 1984, the assistant manager and a clerk at the Safeway Store in Green River, Wyoming were the victims of an armed robbery. The store was closed and locked at approximately 10:00 P.M. that night, and the rest of the store employees had departed. The assistant manager and the clerk were counting the money from the several checkout counter tills when the assistant manager noticed two men approaching down one of the aisles. The men were wearing masks and were armed, one with a sawed-off shotgun and the other with a large knife. The first was attired in a dark coat or jacket and a ski-type mask, the other wore a green coat or jacket with a Halloween style mask that had long black hair and a face described as orange/yellow. These two men, after threatening the assistant manager and the clerk, entered a booth that served as an office and proceeded to empty the tills into a white bag. The man with the shotgun forced the assistant manager to open the bottom safe by prodding him with the shotgun.
The robbers made the assistant manager and the clerk accompany them into a back storeroom where they then tied their hands and feet and covered their eyes with duct tape. The robber wearing the Halloween mask removed it at this juncture, and the assistant manager, by tilting his head backward, was able to peer beneath the tape and see this individual. At trial, the assistant manager testified that he observed a man with long blondish-brown hair wearing a white tee shirt and gold-rim glasses.
The robbers then left the store and, after freeing himself, the assistant manager promptly reported the robbery to the police. Both the assistant manager and the clerk furnished statements to investigating officers that same evening at the scene of the crime. The assistant manager advised the officers that he recognized the man whom he had seen as a member of the crew who cleaned the floors in the store. He did not know the man's name but, when shown a photographic array including a picture of Darwin Haselhuhn, he identified him as the man he had seen. Later, when he saw Haselhuhn in person at the preliminary examination, he positively identified him as the robber. Haselhuhn was convicted of this armed robbery, and that conviction was affirmed by this court in Haselhuhn v. State, 727 P.2d 280 (Wyo.1986), cert. denied 479 U.S. 1098, 107 S.Ct. 1321, 94 L.Ed.2d 174 (1987).
The assistant manager and the clerk both explained to the investigating officers that only one of the robbers spoke during the course of the robbery. The investigating officers then obtained a tape with several voice exemplars, the last of which was Prime's voice. The voice exemplars were then played to these witnesses, and the assistant manager identified Prime's voice as the voice of the other robber. The store clerk selected the third exemplar and the Prime exemplar as being similar to the voice that she had heard at the robbery.
During the course of the investigation, the police officers arranged hypnotic sessions for the assistant manager and the store clerk. At trial, the assistant manager testified that he did not think he ever had been under hypnosis, and he said that his identification was not assisted by anything that occurred during the hypnotic session. The clerk, who had testified at Haselhuhn's trial, did not testify in Prime's case, but a statement that she had made to the police officers was received into evidence. Prime called an expert witness in his defense who explained the difficulties and problems with hypnosis and the possible results in terms of effect upon the recollection of a witness.
The evidence against Prime, in addition to that of the two victims of the robbery, encompassed in-court identification of Haselhuhn by the assistant manager and other witnesses; Prime's association with Haselhuhn; his claim that he had spent the entire evening of April 21, 1984 with Haselhuhn; and incriminating allusions to the robbery which Prime and Haselhuhn had made to other witnesses who testified. In addition, Prime was identified as having entered the Safeway Store between 9:30 and 10:00 P.M. on the night of the robbery. That witness, and others, had seen Haselhuhn enter the store also, but no one had seen either of them leave.
During the course of the trial, the record reflects that when Darwin Haselhuhn was presented in the courtroom, the following occurred:
Following this colloquy, a motion for a mistrial was made on behalf of Prime claiming that the circumstances were prejudicial. That motion was denied, and the court then gave the following advice to the jury:
The appearance in the courtroom had been preceded by a conference in chambers in which the court granted immunity to Haselhuhn from the use of his testimony against him, and Haselhuhn affirmed his position that he would not testify because of possible prejudice relating to federal charges and other charges against him. At that conference, Prime's counsel also complained about the loss of any opportunity to cross-examine.
We address, first, the claim of error arising out of the circumstances in which Haselhuhn was presented before the jury and exercised his right not to testify by refusing to be sworn as a witness. In substance, the inverse of this situation occurred at Haselhuhn's trial when Prime, upon being presented for the administration of the oath, advised the court in front of the jury that he would refuse to testify. The court there addressed the claim that Haselhuhn had been deprived of his right of confrontation because he was not permitted to cross-examine Prime with respect to conduct which was perceived by Haselhuhn as being equivalent to testimony. We there explained that there was no violation of the right of confrontation under those circumstances.
In that case, like this case, Haselhuhn moved for a mistrial, but he did not request that a cautionary instruction be given to the jury. In this case, Prime moved for a mistrial, but he made no complaint with respect to the advice which the district court gave the jury. We reiterate our statement in Haselhuhn, 727 P.2d at 286, that "such incidents should be avoided in the trial of a case," and we remind counsel and the trial bench that the record can be made outside of the presence of the jury which avoids any claim of prejudice. In this instance, like Haselhuhn, 727 P.2d at 280, we conclude that what...
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