Seeley v. State, 83-244

• Decision Date: 07 March 1986
• Docket Number: No. 83-244,83-244
• Citation: 715 P.2d 232
• Parties: Terry Kent SEELEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 232

715 P.2d 232

Terry Kent SEELEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-244.

Supreme Court of Wyoming.

March 7, 1986.

Robert A. Monteith, Boynton & Monteith, Casper, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., for appellee.

Before THOMAS, C.J., and ROSE, ^* ROONEY, ^** BROWN and CARDINE, JJ.

THOMAS, Chief Justice.

The primary issues which are to be resolved in this appeal, which is taken from a conviction of sexual assault in the first degree as defined in § 6-4-302, W.S.1977, relate to the necessity for severance of this case from trial with the case of a co-defendant after the cases were consolidated for trial; the sufficiency of the evidence to sustain the appellant's conviction; and the refusal of the trial court to give offered instructions on asserted lesser-included offenses. There are other issues which in some respects intertwine with the primary issues relating to the admissibility of evidence of prior bad acts on the part of the co-defendant; the failure of the court to limit the effect of testimony as to prior bad acts to the co-defendant's case by appropriate instruction; the denial of equal protection of the law because of the ineffective assistance of counsel at trial; and an abuse of discretion in sentencing the appellant. We conclude that there is no reversible error in this case. The judgment and sentence are affirmed.

The statement of issues in Seeley's brief lists the following:

"I. THE PRIOR BAD ACTS EVIDENCE ADMITTED AGAINST CO-DEFENDANT CAREY WAS IMPROPERLY ADMITTED AND WAS PREJUDICIAL TO APPELLANT SEELEY.

"II. THE CASES OF HERMAN CAREY AND TERRY KENT SEELEY WERE IMPERMISSIBLY JOINED FOR TRIAL.

"III. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT SEELEY A MISTRIAL AND/OR SEVERANCE.

"IV. THE COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY TO 'COMPARTMENTALIZE' THE BAD ACTS AND OTHER TESTIMONY CONCERNING CO-DEFENDANT CAREY IRREPARABLY PREJUDICED APPELLANT SEELEY.

"V. THE TRIAL COURT ERRED IN ITS REFUSAL TO OFFER INSTRUCTION AS TO LESSER INCLUDED OFFENSES.

"VI. THE SENTENCE IMPOSED UPON APPELLANT SEELEY WAS EXCESSIVE, CONSTITUTES AN ABUSE OF JUDICIAL DISCRETION AND IS CRUEL AND UNUSUAL PUNISHMENT UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

"VII. APPELLANT SEELEY WAS DENIED DUE PROCESS OF LAW BECAUSE

OF THE INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN THE MATTER.

"VIII. THE EVIDENCE WAS INSUFFICIENT FOR A REASONABLE JUROR TO FIND APPELLANT SEELEY GUILTY OF THE CRIME AS CHARGED BEYOND A REASONABLE DOUBT."

In response, the State of Wyoming restates and reorders the issues in this way:

"I. WAS THE EVIDENCE SUFFICIENT FOR CONVICTION?

"II. DOES APPELLANT HAVE STANDING TO RAISE A RULE 404(b), WYOMING RULES OF EVIDENCE ISSUE?

"III. DID MISJOINDER OCCUR?

"IV. IF MISJOINDER DID NOT OCCUR, IS ABUSE OF DISCRETION THE STANDARD OF REVIEW?

"V. DID TRIAL COURT ABUSE ITS DISCRETION IN DENYING MOTION FOR SEVERANCE AND/OR MISTRIAL?

"VI. DID TRIAL COURT ABUSE ITS DISCRETION IN NOT GIVING LESSER INCLUDED OFFENSE INSTRUCTIONS?

"VII. DID TRIAL COURT ABUSE ITS DISCRETION IN SENTENCING APPELLANT TO TEN (10) TO TWELVE (12) YEARS?

"VIII. WAS APPELLANT DENIED EFFECTIVE ASSISTANCE OF COUNSEL?"

The material facts begin with the victim and a friend of hers whom she met at her place of employment encountering Seeley and Herman Carey at a club in Casper. During the next several hours, these four people drank alcoholic beverages, danced, rode in Seeley's pickup to another similar nightclub where they did not go in, and returned to the club where the victim and her friend had first encountered the two men. During their travels they had stopped at a liquor store to buy whiskey and mix. When the club closed, they left in their separate vehicles with the victim and her friend first going to obtain gas for the friend's pickup. After buying the gas, they were unable to get the pickup started and Seeley then pushed it with his pickup to the parking lot of the friend's apartment. The friend went into her apartment, but in a short while came back outside after having a falling out with her boy friend.

The four people then rode around for a short period of time in Seeley's pickup, and returned to the friend's apartment. Both the victim and the friend went inside, and Seeley and Carey waiting in Seeley's pickup in the parking lot. The victim testified that she intended to stay overnight with her friend, but she did not feel comfortable there because of the situation between her friend and the friend's boy friend. Seeing Seeley and Carey in the parking lot, she decided to ask them to give her a ride to her sister's house where she was living.

Seeley and Carey agreed to give her a ride home, but during the journey, Seeley did not follow her instructions as to the route. Instead, they drove to a trailer park where Seeley had a mobile home. The victim testified that, although she was reluctant to do so, she voluntarily accompanied the two men inside the mobile home, and after they had gone inside, she observed Carey locking the door. When she asked him what he was doing, he replied that they were going to have some fun. The victim testified that subsequently through the exercise of violence and force Carey perpetrated a sexual assault upon her. Those facts are detailed in the companion case of Carey v. State, Wyo., 715 P.2d 244 (1986). The victim testified that after being sexually assaulted by Carey, Seeley came into the room in the mobile home, lowered his trousers, and inquired if he could have some fun too. She said that Seeley then had sexual intercourse with her with some assistance from Carey. Seeley testified that he did not have any sexual contact with the victim, claiming that he had a personal aversion to having sexual intercourse with a white female who had been involved in sexual intercourse with a black man. According to the victim, Carey then had sexual intercourse with her a second time. After that the two men did take her to her sister's home.

Additional facts will be discussed as necessary in disposing of the several issues raised in this appeal. At trial, both Seeley and Carey were convicted of sexual assault in the first degree in violation of § 6-4-302(a)(i), W.S.1977 (superseded by § 6-2-302, W.S.1977 (June 1983 Replacement)). ¹ They had been charged in separate informations, but the cases were consolidated for trial. Seeley's appeal is taken from a judgment and sentence committing him to the Wyoming State Penitentiary for not less than ten nor more than twelve years.

Seeley's first four claims of error are all related to the evidence of prior bad acts on the part of his co-defendant, Carey. Addressing those in the chronological context of the proceedings, we first hold that the initial joinder of Seeley's case with Carey's case for trial was not improper. Rule 12, W.R.Cr.P., provides that:

"The court may order * * * informations * * * to be tried together if the offenses, and the defendants * * * could have been joined in a single information. * * * "

Joinder is provided for under Rule 11(b), W.R.Cr.P., in the following language:

"Two * * * defendants may be charged in the same * * * information if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. * * * "

Joinder, pursuant to Rule 11(b), W.R.Cr.P., and therefore consolidation pursuant to Rule 12, W.R.Cr.P., is proper in those instances in which the two defendants participated in the same act or transaction, or in the same series of acts or transactions. Lee v. State, Wyo., 653 P.2d 1388 (1982). A series of acts has been defined as those having a close connection in time, place, or occasion. Dycus v. State, Wyo., 529 P.2d 979 (1974); Dobbins v. State, Wyo., 483 P.2d 255 (1971). Rule 11(b) justifies the joinder of offenses which are of similar character, such as narcotic sales closely related in time, place and manner. Dobbins v. State, supra, 483 P.2d at 258, quoting United States v. Rivera, 348 F.2d 148, 150 (2nd Cir.1965). The record in this case discloses no objection by Seeley to the consolidation of his case for trial with Carey's, but even if he had objected, the initial joinder was proper pursuant to Rules 11(b) and 12, W.R.Cr.P. The fact that Seeley and Carey were charged with and convicted of two separate crimes does not foreclose consolidation in an instance such as this in which the crimes essentially constitute a single transaction or involve a related series of acts.

Seeley insists, however, that even if consolidation was proper, there did occur prejudicial error in refusing to grant him a mistrial or a severance of his case for trial when the evidence of the prior bad acts on the part of Carey was offered at the trial. In this instance, Seeley did not request a severance when the evidence of Carey's prior bad acts was offered, but he did ask for a mistrial. Precedent in Wyoming in which prejudicial joinder is discussed consists of cases which have involved motions on the part of the defendant to sever. Ostrowski v. State, Wyo., 665 P.2d 471, 484 (1983); Lee v. State, supra; Tabor v. State, Wyo., 616 P.2d 1282 (1980); Linn v. State, Wyo., 505 P.2d 1270, 1273, cert. denied 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959, reh. denied 412 U.S. 944, 93 S.Ct. 2780, 37 L.Ed.2d 405 (1973); Dobbins v. State, supra, 483 P.2d at 259. Other courts have held that if a defendant does not make a motion to sever, he waives his right to severance. See, e.g., State v. Longoria, 123 Ariz.App. 7, 596 P.2d 1179 (1979). The United States Court of Appeals for the Eighth Circuit has held that a waiver of a demand for separate trials may be found if the defendant did not renew a pretrial motion to sever at the close of the prosecution's case or at the close of all evidence. United...