Smith v. State

• Decision Date: 23 February 1978
• Docket Number: No. 4785,4785
• Citation: 574 P.2d 1227
• Parties: Arlene K. SMITH, also known as Arlene Johnson, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1227

574 P.2d 1227

Arlene K. SMITH, also known as Arlene Johnson, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4785.

Supreme Court of Wyoming.

Feb. 23, 1978.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and John R. Green, Senior Law Student and Student Director, Wyoming Defender Aid Program, Laramie, for appellant (defendant below).

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, for appellee (plaintiff below).

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

ROSE, Justice.

The defendant was convicted, following a jury trial, of first-degree murder in violation of § 6-54(a), W.S.1957, 1975 Cum.Supp., and was sentenced to life imprisonment. On appeal, essentially two issues are raised: (1) whether the trial court properly denied defendant's motion to strike certain pretrial and in-court identifications of the murder victim and the defendant; and (2) whether there was sufficient evidence that the crime was committed in Sweetwater County, Wyoming. We answer both questions in the affirmative and will affirm the conviction.

Early in the morning of May 23, 1976, the body of a man was found near Point of Rocks, in Sweetwater County, Wyoming. He had died of bullet wounds, having been shot five times, and a check of fingerprints disclosed that the body was that of one Thomas Burgett from Des Moines, Iowa. Inquiry revealed that Burgett had left Iowa, in the company of the defendant, on May 10, and that they had traveled to California to visit Burgett's aunt and to seek employment. While in California, Burgett's relatives observed a .38 caliber Smith and Wesson revolver in the defendant's possession. The couple left California on May 20, and the defendant arrived in Des Moines alone on May 23.

At trial, the prosecution called Linda Pedri and Berry Malone to testify concerning their observations on the night of May 22, 1976. Pedri was the cocktail waitress and Malone the bartender for Giuseppo's Bar in Rock Springs. Both witnesses testified without objection that the defendant and Burgett had been in Giuseppo's between the hours of 9 p. m. and 1 a. m. on the evening of May 22. Their attention had been drawn to Burgett because of tatoos on each of his fingers. Pedri testified again without objection that she had attended the defendant's preliminary hearing out of curiosity, and had thereafter identified photographs of the deceased as resembling the man who had been in Giuseppo's the night of May 22. Malone also testified without objection that he had identified photographs of the deceased prior to trial and that they were of the man he had seen in the bar.

During cross-examination of Malone, Malone testified that he had identified the defendant, during a one-person showup prior to trial, as being the woman who had accompanied the deceased into the bar. Further cross-examination of Malone also disclosed that he had been shown pictures only of the deceased. These witnesses were extensively cross-examined relative to their observations on May 22 and during the police investigation. After another witness had testified, and just prior to commencement of the second day of trial, defendant moved to strike all of the above-mentioned identification testimony and requested an instruction to the jury to disregard all such testimony. The motion was taken under advisement. After the prosecution rested, the trial court granted the defendant's motion as it related to Malone's testimony about his showup-identification of the defendant and the jury was instructed to disregard this testimony. The defendant's motion was denied as to all other identification testimony.

Defendant contends that this identification procedure and testimony including procedures used by law-enforcement officers, such as a display of photographs of only the deceased, use of a one-person showup, and the voluntary attendance of a witness at defendant's preliminary hearing combined to be so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. The state contends that defendant's motion was untimely and that, in any event, the identification testimony was proper.

Where a defendant wishes to preclude the use of evidence obtained through an alleged violation of his constitutional rights, he must protect himself by timely action. Blakely v. State, Wyo., 542 P.2d 857, 860. In the absence of circumstances that preclude the lodging of timely objection, a motion to strike identification testimony is not subject to review when such testimony is given without objection and is subjected to vigorous cross-examination. Emerson v. State, 261 Ind. 436, 305 N.E.2d 435; Johnson v. State, 257 Ind. 682, 278 N.E.2d 577; State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572; State v. Canada, Iowa, 212 N.W.2d 430; and State v. Gering, 108 Ariz. 377, 498 P.2d 465. The court said, in Johnson v. State, supra:

" . . . Better practice dictates that the questions be presented and determined at a pre-trial hearing upon a motion to suppress. Absent prior knowledge of an out-of-court identification, the matter could be gone into by preliminary questioning, out of the presence of the jury, at the time the in-court identification testimony is tendered. The question not having arisen by either of the foregoing methods, the defendant, at best, runs the risk of having the trier of the facts subjected to questionable testimony unnecessarily and a subsequent determination of whether it was error or prejudicial. The disadvantages...