Rands v. State
| Decision Date | 25 September 1991 |
| Docket Number | 90-90,Nos. 90-89,s. 90-89 |
| Parties | Steven DeWayne RANDS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). (Two Cases) |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Defender Aid Program, and Donald F. Carey, Student Intern, for the Defender Aid Program, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Milo M. Vukelich, Asst. Atty. Gen., for appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
Appellant Steven Rands appeals from his convictions for conspiracy to commit first-degree murder in violation of Wyo.Stat. §§ 6-1-303 (1988) and 6-2-101 (Supp.1991) and for aggravated burglary in violation of Wyo.Stat. § 6-3-301 (1988). 1
We affirm.
Appellant presents the following issues for our review:
I. Whether the evidence was sufficient to sustain the conviction for conspiracy to commit murder in the first degree.
II. Whether the State violated W.R.Cr.P. 15(e)(6) by introducing statements made at a change of plea hearing at trial.
III. Whether the State violated Defendant's sixth amendment right to confront witnesses, by introducing out of court statements made by a co-defendant at trial.
In the evening of November 22, 1989, Karen Head and Michael Head were driving their car to Lusk, Wyoming. As they proceeded north on highway 85, Appellant began following them in his car and drove within one or two feet of the rear bumper of their car. Appellant began to pull his vehicle up beside the Heads' vehicle as if he were going to pass. Instead, Appellant kept his car in a position just short of being parallel with the Heads' vehicle. All of a sudden, the passenger in Appellant's car, Gerald Ellett, fired a shot from a pistol, striking Mr. Head in the back. Appellant's vehicle passed the Heads' vehicle and slowly drove away. Mr. Head was not seriously injured. One day later, the police arrested Appellant in Torrington, Wyoming, and searched his car. Among other things, the police found a .38 caliber pistol, a flashlight, and a number of coins. One of the cartridges in the gun had been fired. On November 25, 1989, Mr. and Mrs. James Gamble returned to their home in Torrington, Wyoming, and discovered that it had been burglarized. The Gambles reported that a gun, a flashlight, three twenty-dollar bills, and a number of coins were missing from their house.
Appellant was charged with conspiracy to commit first-degree murder and aggravated burglary. Appellant initially pleaded not guilty and later attempted to change his plea to guilty. The district court refused to accept Appellant's change of plea, however, because Appellant failed to provide a sufficient factual basis for the plea. The matter continued, and Appellant's case went to trial.
At trial, Appellant gave the following account of events. Appellant and Ellett were traveling north on highway 85 when Ellett saw a woman who looked like his ex-wife in the passenger seat of a car. Appellant followed the car while he and Ellett discussed Ellett's past relationship and his bitter feelings for his ex-wife. Ellett asked Appellant to pull their vehicle up beside the Heads' vehicle so he could see if the woman was his ex-wife. Ellett said that he wanted to scare the woman, and then Appellant heard the gunshot. Appellant denied having any prior knowledge of Ellett's intent to shoot at the car. Appellant also testified that he and Ellett went to the Gambles' house and that Ellett went into the house and took several items. Appellant claimed that he did not enter the house.
The jury found Appellant guilty of conspiracy to commit first-degree murder and aggravated burglary. The district court sentenced Appellant to imprisonment at the Wyoming State Penitentiary for the remainder of his life for his conviction of conspiracy to commit first-degree murder and for a minimum of seventeen years and a maximum of twenty years for his conviction of aggravated burglary. The sentences were to run consecutively.
Appellant's first argument challenges the sufficiency of the evidence upon which the jury relied to convict him of conspiracy to commit first-degree murder. To determine if a conviction is supported by sufficient evidence, we examine all the evidence in the light most favorable to the State. Roose v. State, 759 P.2d 478 (Wyo.1988).
"[I]t is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State.
* * * * * *
Broom v. State, Wyo., 695 P.2d 640, 642 (1985) (citations omitted).
The elements of conspiracy are prescribed in § 6-1-303(a):
(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
In Bigelow v. State, 768 P.2d 558, 561 (Wyo.1989) (quoting Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977)), we stated:
The elements of first-degree murder are set out in § 6-2-101(a):
(a) Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping, kills any human being is guilty of murder in the first degree.
To conclude that the evidence is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt, we must examine two questions. First, did Appellant and another person agree to "purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping," kill a human being? Second, did Appellant or the other agreeing person do an overt act to effect the objective of their agreement?
"[C]ircumstantial evidence can be relied on to prove the conspiracy because of the covert nature of the crime itself." Bigelow, 768 P.2d at 563. Likewise, the premeditation and deliberation elements of first-degree murder may be inferred from the circumstances. Murry v. State, 713 P.2d 202 (Wyo.1986). Malice may be inferred from the use of a deadly weapon. Id.; Leitel v. State, 579 P.2d 421 (Wyo.1978). Viewed in a light most favorable to the State, the record shows that Appellant drove his car up behind the Heads' car as it was traveling down the highway at a relatively high rate of speed. Appellant followed the Heads within two feet of their vehicle and then slowly pulled his vehicle up beside their vehicle. As Appellant maintained that position, Ellett fired a shot from a .38 caliber pistol at the Heads' car. The bullet went into the passenger compartment of the car and struck Mr. Head. In addition, a police officer who interviewed Appellant testified that Appellant said Ellett had possession of the pistol at the Gambles' residence and that Appellant said he may have told Ellett, preceding the shooting, to " '[b]low that motherfucker's head off.' " That evidence is sufficient to support the jury's conclusions that Appellant and another person agreed to "purposely and with premeditated malice" kill a human being and that Appellant or the other agreeing person did an overt act to effect the objective of their agreement.
Appellant also contends that the district court erred when it allowed the prosecution to read statements in the presence of the jury which were made by Appellant during his attempt to establish a factual basis for a guilty plea. During trial, the following colloquy occurred:
Q Mr. Rands, do you recall testifying under oath at a previous Court appearance that you did in fact enter the residence of Mr. Gamble[ ]?
A I take the Fifth Amendment on that.
Q I would ask the Court to instruct the witness to answer the question.
Q (by Mr. Fitch) What's the date on that?
A The date on this is February 1, 1990. I don't need to see it, Mr. Fitch. Yes, I said that.
Q You said that under oath?
A Yes.
Q Is that true?
A I believe I stated that due to the fact that I was going to get four 2 hour contact visits if I pled guilty.
Q You lied under oath thinking you could get contact visits?
A Yes.
At the change of plea hearing, the district court found that Appellant failed to establish a factual basis for a guilty plea and refused to accept Appellant's plea.
W.R.Cr.P. 15(e)(6) states:
Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of...
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