Stamper v. State

• Decision Date: 08 April 1983
• Docket Number: No. 5713,5713
• Citation: 662 P.2d 82
• Parties: Pete STAMPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 82

662 P.2d 82

Pete STAMPER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5713.

Supreme Court of Wyoming.

April 8, 1983.

Terry W. Mackey, Cheyenne, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Sr. Asst. Atty. Gen., Sharon A. Lyman, Asst. Atty. Gen., Cheyenne, and Larry D. Sorrell, Deputy County Atty., Fremont County, for appellee.

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

ROSE, Justice.

Pete Stamper appeals his conviction for aggravated assault with a deadly weapon under § 6-4-506(b), W.S.1977. ¹ The jury acquitted appellant of involuntary manslaughter, the crime for which he was tried and found him guilty of aggravated assault with a deadly weapon as a lesser included offense of the crime charged. He now seeks reversal of his conviction and raises these issues for our consideration:

1. Did the trial court commit reversible error in admitting into evidence a pair of appellant's boots that were seized at the time of appellant's arrest?

2. Under the facts, as developed at trial, was the jury properly instructed that the crime of aggravated assault with a deadly weapon was a lesser included offense of the crime charged?

We will reverse.

FACTS

Appellant Pete Stamper's conviction arises from an altercation he had with the deceased outside of a drinking and eating establishment in Dubois on July 10, 1981. The victim, John Smith, died approximately one and a half days after the altercation whereupon the State filed a complaint charging appellant with second degree murder.

Mr. Stamper was arrested on July 11, 1981 and a preliminary hearing was held on August 13, 1981 which resulted in the appellant being bound over on the charge of manslaughter. An information was filed charging appellant as follows:

" * * * Pete Stamper on the 10th day of July 1981, in Fremont County, Wyoming, did unlawfully, involuntarily and without malice, kill a human being and did so in the commission of an unlawful act * * *." ²

Trial commenced on April 12, 1982 and the jury returned its verdict of guilty. Further facts will be developed in conjunction with our discussion of the issues.

ADMISSION OF THE BOOTS INTO EVIDENCE

Prior to trial, the appellant filed a motion to suppress evidence consisting of a pair of Mr. Stamper's boots that were seized at the time of his arrest. At the suppression hearing, Stamper contended that this evidence was obtained in violation of the rights guaranteed him by the Fourth and Fifth Amendments to the United States Constitution, ³ Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), and Art. 1, §§ 4 and 11 of the Wyoming Constitution. ⁴ It was the position of the prosecution that the boots had been seized by the officers only after appellant had freely and voluntarily consented and that under our opinion in Parkhurst v. State, Wyo., 628 P.2d 1369 (1981), they were therefore admissible. The trial judge held that the seizure did not violate the Fourth Amendment to the Federal Constitution and Art. 1, § 4 of the Wyoming Constitution and was therefore not subject to suppression. It was, however, further ordered that any statements elicited from appellant respecting the boots were not admissible since they were obtained in violation of appellant's rights as guaranteed under Miranda v. Arizona, supra.

At the trial, the State, over objection of appellant's counsel, was permitted to introduce the boots into evidence but the witness was not permitted to testify about the circumstances surrounding their acquisition. Counsel's objection went to the lack of foundation for the introduction of the evidence in light of the trial judge's previous ruling regarding statements made by appellant at the time the boots were obtained. The trial judge overruled the objection, stating:

"All right. Now, you know, the jury knows and I know and everybody knows that the chances are more than likely Mr. Stamper was not barefoot that night. And I think we also know pretty conclusively that he was probably wearing something. And if those boots come in and that's all that's said, I'm going to assume that the jury's going to assume those are the boots he was wearing that night. I don't know what other assumption they could be involved with. That's the reason for the objection to begin with; am I correct?" (Emphasis added.)

Our review of the record supports appellant's contentions that his rights, as guaranteed by Miranda v. Arizona, supra, were violated and the trial court properly excluded that testimony. Given this conclusion, we must also agree with appellant that the boots were improperly admitted into evidence because sufficient foundation had not been laid for their admission. We consider this error to be prejudicial, requiring reversal of appellant's conviction.

The Fourth and Fifth Amendments seizure issue raised by appellant stems from the events that occurred at the time Mr. Stamper was arrested. The testimony of the arresting officer introduced at the suppression hearing developed the following sequence of events. On July 11, 1981, the day of the victim's death, Sergeant Jack Coppock of the Fremont County Sheriff's office went to Dubois to interview witnesses to the fight that occurred between Smith and Stamper during the early hours of July 10, 1981. As these interviews were being concluded, another member of the sheriff's office and a game warden went to the appellant's residence to inquire about various threats that were presumed to have been made against appellant. Approximately 15 to 30 minutes later, Officer Coppock arrived at the Stamper residence. Appellant then informed Coppock that he had talked to his attorney who advised him to remain silent. At this point, according to Sergeant Coppock's testimony, appellant was placed under arrest but he was not advised of his Miranda rights. ⁵ Appellant then requested permission to lock some of the outbuildings on his property. The transcript from the suppression hearing then details the following sequence of events:

"A. Then Jack walked up to me about that time and said, 'Would you pick up Pete's boots?' So I immediately turned to Pete and I asked him if we could have his boots.

"Q. What exactly did you say?

"A. I said, 'Could we have your boots that was [sic] used on the night of the death of Jack Smith?' He said, 'They're in the house. We will have to go in the house and get them.'

"Q. Did you do that?

"A. Yes. We followed Pete in the house there. Kay Boles and I.

"Q. Did you have a search warrant to search Mr. Stamper's house?

"A. No, sir.

"Q. Did you search Mr. Stamper's house?

"A. Pardon?

"Q. Did you search Mr. Stamper's house?

"A. We followed Pete and Pete went into a back room and looked and said he couldn't find them. Then he went into another room and we followed Pete in. He picked the shoes up and handed them to me and I brought them back out and gave them to Mr. Coppock.

"Q. Was there anything else said by either you or Mr. Stamper except what you related to us with regard to the boots being seized?

"A. No.

"Q. Did you say anything to him in the nature of, 'You have to give them to me' or "We'll get them anyway. We will get a warrant'?

"A. No."

Soon after this sequence, the appellant was transported to the local police station.

Having heard this testimony, the trial judge decided that under the totality of the circumstances the appellant had consented to the entry of his house by the officers and to the seizure of his boots. Appellant contests this finding and urges that a consent to search cannot be lawfully found to have occurred because he was under arrest at the time, had not been warned of his rights under Miranda v. Arizona, supra, and was never informed of his right to refuse the search and seizure as this right is contemplated by our decision in Parkhurst v. State, supra. The State, on the other hand, argues that first of all no search occurred and, secondly, if a search did occur, it was conducted pursuant to appellant's consent. The main focus of the State's position is that the fact of appellant's arrest, together with the attendant lack of Miranda warnings, did not render appellant's consent invalid.

The basic underpinning of any search and seizure question, ⁶ is that warrantless searches are assumed to be unreasonable per se, Tobin v. State, 36 Wyo. 368, 255 P. 788 (1927); State v. George, 32 Wyo. 223, 231 P. 683 (1924), and the burden is on the State to justify any search conducted in the absence of a warrant by convincing this court that one of the well-delineated exceptions to the rule is applicable. One exception to the unreasonable per-se assumption is that an individual can consent to a warrantless search of an area. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598, reh. denied 424 U.S. 979, 96 S.Ct. 1488, 47 L.Ed.2d 750 (1976).

We dealt extensively with the consent exception to the warrant requirement in Parkhurst v. State, supra:

"The issue of the voluntariness of the consent may be properly resolved by a preponderance of the evidence standard. Fitzgerald v. State, Wyo.1979, 601 P.2d 1015. On appellate review 'we view the evidence most favorably to the party who prevailed below.' Fitzgerald, supra, 601 P.2d at 1018. Here the evidence was (1) the police officer asked Dennis if he could search the car; (2) Dennis replied he was not a lawyer; (3) Dennis was urged by his brother, Derrick, to go ahead and let the police officer make the search; (4) the officer indicated to Dennis that he did not have to be an attorney, he could consent to the search by himself if he wanted to; and (5) Dennis agreed to permit the search. Based on this evidence the trial court could reasonably have concluded that the...