Raigosa v. State

• Decision Date: 11 April 1977
• Docket Number: No. 4669,4669
• Citation: 562 P.2d 1009
• Parties: Eduardo RAIGOSA, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1009

562 P.2d 1009

Eduardo RAIGOSA, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4669.

Supreme Court of Wyoming.

April 11, 1977.

King Tristani, Asst. Public Defender for Laramie County, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.

V. Frank Mendicino, Atty. Gen., and Arthur T. Hanscum, Asst. Atty. Gen., Cheyenne, signed the brief and Arthur T. Hanscum appeared in oral argument on behalf of the appellee.

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

RAPER, Justice.

Defendant-appellant was found guilty of second degree murder by a jury of a six-year old child under § 6-55, W.S.1957, and sentenced to a period of not less than 25 nor more than 35 years in the Wyoming State Penitentiary. From the judgment and sentence he has prosecuted this appeal, asserting three points of error: (1) the district court improperly admitted statements and confessions made by him following arrest (2) the district court improperly admitted opinion evidence as to cause of death; (3) the district court improperly denied submission of three requested jury instructions.

We will affirm.

On June 10, 1975, Cheyenne police received a call to go to a local address. Upon arrival, the officers were directed upstairs to a revulsive scene where two ambulance attendants were working on a small female child lying on the floor, apparently dead. The child's body was badly bruised (torso, legs, arms), cut and her head had been shaved. There were blood stains on the walls and carpet and fecal matter on the floor. In response to questioning by officers, defendant indicated that the child had been in Denver for a period of time and had been injured between two cars, but that no medical attention had been given nor had the appropriate authorities been notified. He indicated that the child's head had been shaved as a disciplinary measure about a week before; and that the fecal matter was dog excrement. Defendant and the deceased girl's mother, Linda Onofrey, were then taken to the Cheyenne police station for further questioning.

After arrival at the police station, defendant at first refused to make a statement. He then almost immediately changed his mind, stating that if he did not tell them, they would get the story anyway from the young lady, an apparent reference to the deceased's mother. After signing a standard waiver form indicating that he wished to furnish a statement to the police, defendant did provide and sign his first statement. A subsequent tape-recorded statement was taken later that afternoon and another handwritten statement taken later that same evening. A fourth statement taken was not admitted at trial. Each of his first three statements indicated generally that the accused had begun spanking the deceased and lost his temper. At trial, it was established through the testimony of an expert pathologist that the deceased had died from a lacerated liver and resultant internal bleeding with shock, caused by a heavy blow.

Appellant's claim that it was improper for the district court to admit into evidence his post-arrest statements and confessions is founded on three contentions: (1) his arrest and subsequent detention were without probable cause; (2) the statements and confessions were involuntary and made without proper benefit of counsel; (3) the 42-hour delay between his arrest and 'arraingment' (initial appearance before commissioner) was unnecessary and thus a violation of Rule 5(a), W.R.Cr.P. We shall in that order deal with each contention.

The district court concluded, and neither party challenges, that the actions of the officers in escorting defendant to the patrol car constituted a detention of personal liberty from and after that time, and resulted in an arrest. It is argued that the warrantless arrest was not properly founded on probable cause. Verbal evidence obtained during unlawful custody must be excluded as the illegal fruits of a forbidden arrest. Wong Sun v. United States, 1963, 371 U.S. 471, 486, 83 S.Ct. 407, 416-417, 9 L.Ed.2d 441, 453. Wong Sun is applicable to the states. Brown v. Illinois, 1975,422 U.S 590, 95 S.Ct. 2254, 45 L.Ed.2d 416. Nor does the mere giving of the Miranda warning remove the taint of illegal arrest. Brown v. Illinois,supra.

Just what constitutes probable cause, or its functional equivalent in Wyoming law, reasonable grounds (§ 7-12.3, W.S.1957, Cum.Supp.) ¹, sufficient to authorize a warrantless arrest, is, like many other things in the law, incapable of exact definition. As was observed in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 2 Cir. 1972, 456 F.2d 1339, 1348, and as quoted in Rodarte v. City of Riverton, Wyo.1976, 552 P.2d 1245:

"The numerous dissents, concurrences and reversals, especially in the last decade, indicate that even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause, with or without a warrant. * * *"

Rodarte was a civil case but it correctly states the federal constitutional standard for establishing probable cause in criminal cases to be that which constitutes reasonableness. 552 P.2d at page 1251. Section 7-12.3 is couched in terms of reasonableness.

In Rodarte, Williams v. United States, 10 Cir. 1963, 323 F.2d 90, 93, cert. den. 376 U.S. 906, 84 S.Ct. 659, 11 L.Ed.2d 605, was cited, quoting from Brinegar v. United States, 1949, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879, 1890, reh. den. 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513:

"'The substance of all the definitions' of probable cause 'is a reasonable ground for belief of guilt.' * * * Probable cause exists where 'the facts and circumstances within their (the officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. * * *"

The standards applicable to an officer are equal to those applied to a commissioner before issuance of an arrest warrant. Lofton v. State, Wyo.1971, 489 P.2d 1169, cert. den. 406 U.S. 949, 92 S.Ct. 2049, 32 L.Ed.2d 337; Rules 3 and 4(a), W.R.Cr.P.

But the rule of probable cause must be applied with good sense with a view to practicality. As the Supreme Court of the United States has said in Brinegar v. United States, supra:

'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.'

The facts and circumstances considered need not amount to proof of guilt, or even to prima facie evidence of guilt but must be more than bare suspicion. Brinegar v. United States, supra, 338 U.S. at 175, 69 S.Ct. at 1310, 93 L.Ed. at 1889. The probable cause standard for warrantless arrests represents a balancing of interests. It is a practical, nontechnical concept affording compromise between two, many times opposing, interests. In Gerstein v. Pugh, 1975, 420 U.S. 103, 112, 95 S.Ct. 854, 862, 43 L.Ed.2d 54, 64, on remand 511 F.2d 528, 5 Cir., the Court quoted from Brinegar:

'* * * This standard (prudent man), like those for searches and seizures, represents a necessary accommodation between the individual's right to liberty and the State's duty to control crime.

'These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community's protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, non-technical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice." (338 U.S. at 176, 69 S.Ct. at 1311, 93 L.Ed. at 1890-1891.)

From the cited cases, it can be determined the federal protections have their roots in the Fourth and Fifth Amendments of the United States Constitution. Comparable provisions with the same intent are found in sections of Article I of the Wyoming Constitution as follows:

'4. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable, cause, supported by affidavit, particularly describing the place to be searched or the person or thing to be seized.'

'11. No person shall be compelled to testify against himself in any criminal case, * * *'

Since we meet all federal standards, our decision on the matter of probable cause will be based upon the above provisions of the Wyoming Constitution and not the Constitution of the United States. Richmond v. State, Wyo.1976, 554 P.2d 1217.

The basic question raised by the defendant's initial assertion is whether or not from the facts and circumstances known just prior to arrest, a reasonable (prudent) man would have been led to believe that defendant had committed the instant crime, not whether a crime had been committed. When asked why the child was injured to such an extent, defendant replied that she had spent some time in Denver and had been accidentally caught between two cars; but he also indicated no accident report had been made nor was any medical attention sought. He said the deceased's head had been shaved as a disciplinary measure, yet a...