Richmond v. State

• Decision Date: 08 October 1976
• Docket Number: No. 4544,4544
• Citation: 554 P.2d 1217
• Parties: Gary H. RICHMOND, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1217

554 P.2d 1217

Gary H. RICHMOND, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4544.

Supreme Court of Wyoming.

Oct. 8, 1976.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, signed the brief and appeared in oral argument for appellant.

V. Frank Mendicino, Atty. Gen., Timothy J. Judson, Asst. Atty. Gen., and William Bormuth, Legal Intern, Cheyenne, signed the brief and Timothy J. Judson, Cheyenne, appeared in oral argument for appellee.

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

RAPER, Justice.

In this appeal from a judgment and sentence following a jury verdict finding the defendant-appellant guilty of first-degree murder in killing a human being during an attempt to perpetrate a robbery in violation of § 6-54, W.S.1957, as amended, ¹ the defendant raises the following questions:

1. Could the defendant be prosecuted for the crime charged after the justice of the peace in the original preliminary hearing found no probable cause and dismissed the complaint?

2. Was a tape-recorded confession and the signed statement of the defendant admissible against him in the prosecution's case in chief over objection that they were not knowingly and voluntarily given and therefore not admissible under the Fifth Amendment and Rule 5 of the Wyoming Rules of Criminal Procedure?

3. Did the court err in refusing to instruct the jury on lesser included offenses, to-wit: manslaughter and assault and battery pursuant to defendant's written requests to charge?

4. Did the court err in refusing to instruct the jury that the defendant could be civilly committed after jury verdict of not guilty by reason of insanity, upon the defendant's written request to so charge, which request was renewed after the repeated suggestion in the prosecution's argument to the jury that the defendant would go free?

We will hold there was no error and affirm.

Briefly, the murder facts are that William Johnson, the operator of an automobile service station, was found shot to death by two different guns, causing three wounds, the one in his chest resulting in demise. Upon investigation, the defendant and another, Nathan Jones, were arrested on the date of the crime. The defendant was arrested at 4:00 p. m., and at about 5:00 p. m., he made a tape-recorded statement to the Carbon County undersheriff, in which he related the details of how he and Nathan Jones planned to and did rob the deceased, the defendant trying to tie him up with a T-shirt and an electric cord and Jones shooting the service station operator with both a .22 automatic and a .38 revolver.

Facts pertaining to the issues will be narrated as each question is considered.

Following the filing of a complaint in a justice of the peace court of Carbon County, located in Rawlins, the matter was set down for preliminary hearing before Justice of the Peace Young. At the preliminary hearing, that particular justice of the peace found that there was no probable cause and dismissed the complaint. The statement of the defendant was not used against him at that proceeding. The State filed a new complaint before another justice of the peace of Carbon County, located in Hanna. There, in addition to other evidence, the statement made by the defendant was used, probable cause was found and he was bound over to the district court.

The defendant relies upon a lone authority, Jones v. State, Okl.Cr.1971, 481 P.2d 169, wherein the court, as set out in its own syllabus, held:

'1. Dismissal at preliminary examination for lack of sufficient evidence to hold defendant for trial is a final and binding ruling and no subsequent refiling against the same defendant for the same offfense shall be entertained unless the State makes an offer of additional evidence or proves other good cause to justify another preliminary examination. Additional evidence means that which was not known to the State at the time of the first preliminary.' ²

That case stands almost as a judicial oddity, completely contrary to the vast majority. The same court has since softened in its position and now grants that when evidence is ruled insufficient, the same or another magistrate should not entertain a new filing for the same offense unless the State offers newly discovered evidence or shows other good cause to justify another examination and, in Harper v. District Court of Oklahoma County, Okl.Cr.1971, 484 P.2d 891, went on to say:

'It was not intended, nor is it expected, in order to show probable cause, that in all cases the prosecution must present its entire case before the exmaining magistrate. That is a decision to be reached by the district attorney, and in some cases such may happen; however, in the event the prosecutor miscalculates and fails to present sufficient evidence to show probable cause to bind over the accused, but possesses other witnesses whose testimony would strenthen his showing, it is clearly within the discretion of the examining magistrate to grant the state a continuance for that purpose. However, it is presumed that the additional witnesses, or other evidence, are reasonably available; and that a continuance will not be sought in order to conduct further investigation seeking that evidence, in a dilatory manner.'

The purpose of the rulings, as explained in Harper, was to curtail 'magistrate shopping.' We do not visualize justice of the peace shopping in the case before us but rather a miscalculation of the amount of evidence necessary to satisfy the first justice of the peace. The statement of the defendant was available and could have been used at the first preliminary hearing. We have no inclination to on an ad hoc basis establish any such rules as those made by the Oklahoma court, particularly in a case of murder. No such rules currently appear in the Wyoming Rules of Criminal Procedure or the Monor Court Rules, adopted by this court.

With candor, the defendant admits that his research does not reveal any authority for the proposition that a second preliminary hearing violates the protection against double jeopardy but apparently thinks there ought to be. He decries the action of the first justice of the peace in dismissing and asserts that the defendant should have been bound over on a lesser charge of manslaughter, in that the evidence presented at the first preliminary hearing would support no more than that. We probably should not even discuss the first issue because there is a complete absence from the record of any transcript of proceedings before the first justice of the peace. The State, however, apparently acknowledges such to be the case and we consider that to be a stipulation of facts on appeal under Rule 75(d), W.R.C.P.

The rule has long been that one preliminary hearing, unproductive for the State, does not prohibit another. As set out in United States ex rel. Rutz v. Levy, 1925, 268 U.S. 390, 393, 45 S.Ct. 516, 517, 69 L.Ed. 1010, 1011:

'Under state law it has uniformly been held that the discharge of an accused person upon a preliminary examination for want of probable cause constitutes no bar to a subsequent preliminary examination before another magistrate. Such an examination is not a trial in any sense and does not operate to put the defendant in jeopardy. * * *'

Since that 1925 decision, there has been no change in the law. ³

Rule 7, W.R.Cr.P., ⁴ is basically old Rule 5(b) and (c), F.R.Cr.P. In 1972, the federal rule was amended to add Rule 5.1, dealing exclusively with the preliminary examination. The following clause was added as Rule 5.1(b): '* * * The discharge of the defendant shall not preclude the government from instituting a subsequent prosecution for the same offense.' As noted in 1 Wright Federal Practice & Procedure: Criminal § 83, p. 36 (pocketpart), the new Rule 5.1, F.R.Cr.P., is for the most part only a clarification of old federal Rule 5(c). ⁵ Wyoming has not amended Rule 7, W.R.Cr.P., to incorporate Rule 5.1(b), F.R.Cr.P., but since the federal amendment was only clarification, it is not necessary.

It is well settled that double jeopardy does not attach in the case of a jury trial until a jury is empaneled and sworn. Serfass v. United States, 1975, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274. This court has recently recognized, though the case did not require a holding, that the finding of no probable cause does not constitute an acquittal and there will be no bar to another proceeding before another justice of the peace or for a proceeding by indictment. Thomas v. Justice Court of Washakie County, Wyo. 1975, 538 P.2d 42, 48. We do now so hold. The State and the society it represents cannot be deprived of the right to an information for murder in the first degree on the frail and unfounded basis advanced by the defendant. ⁶

After examination of the record, we have great difficulty understanding the defendant's position that it was not established by the State during the trial that a tape-recorded confession and a transcript of the recording, signed by the defendant, were knowingly and voluntarily given under the Fifth Amendment to the Constitution of the United States. Any holding we make in this regard will be made under a like provision of the Constitution of the State of Wyoming. Section 11, Article I, Wyoming Constitution, provides that: 'No person shall be compelled to testify against himself in any criminal case, * * *.' ⁷ We cite federal cases as authority for any principle we set out; we do so because of the identical purpose of the constitutional provisions, both state and federal. We realize that the Fifth Amendment is made applicable to states by the Fourteenth Amendment. Malloy v. Hogan, 1964, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653, 659.

The State of Wyoming accords the same protection to its citizens and those within its jurisdiction and there is no reason why we should not apply Wyoming constitutional provisions in...