State v. Thomas

• Decision Date: 20 October 1971
• Docket Number: Nos. 10704,10705,s. 10704
• Citation: 489 P.2d 1310,94 Idaho 430
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Lawrence C. THOMAS and Larry Drapeau, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 1310

489 P.2d 1310

94 Idaho 430

STATE of Idaho, Plaintiff-Respondent, v. Lawrence C. THOMAS and Larry Drapeau, Defendants-Appellants.

Nos. 10704, 10705.

Supreme Court of Idaho.

Oct. 20, 1971.

Weeks & Davis, Nampa, for appellant, Lawrence C. Thomas.

Smith & McDonald, Nampa, for appellant, Larry Drapeau.

Robert M. Robson, Atty. Gen., and Martin R. Ward, Deputy Atty. Gen., Boise, C. Robert Yost, Prosecuting Atty., Caldwell, for appellee.

SHEPARD, Justice.

This is an appeal from a judgment of conviction of second degree murder following a jury trial and verdict of guilty. Defendants were charged with the crime of first degree murder resulting from the killing of one John C. Combs, a Parma city policeman, in the early morning hours of September 22, 1969. Combs and his companion, Wong, had received a radio report of an attempted robbery and discovered a parked car in a remote farm area of Canyon County. Combs left the police vehicle and approached the parked automobile on foot. When he reached the automobile he was immediately killed by a shotgun blast from the car. Two or more men got out of that car and approached the police vehicle at which time Wong attempted to hide on the floor boards. Serveral more shotgun blasts were fired into the interior of the police vehicle wounding Wong. The men then dragged him from the police car and drove it away, later wrecking it in a ditch. The only person that Wong could identify in the killing of Combs and wounding of himself was one Williams.

Shortly after the killing of Combs and the subsequent wrecking of the police car, that vehicle was discovered by other police officers who had no knowledge of the shooting incident nor of the theft of the police car. As the officers arrived at the scene of the wrecked vehicle, Williams was observed climbing up from a canal bank and shouting 'Frank, Frank, I want to give up.' The officers asked 'What happened to John Combs?', and Williams replied, 'We shot him and his partner too.'

The defendant Drapeau was apprehended at the scene of the wrecked police vehicle. Defendant Thomas was found in a car parked in a shed close to the accident scene. A search of that shed revealed three shotgun shells of the same gauge and shot size used in the murder of Combs and the wounding of Wong. Williams, Thomas and Drapeau were all charged with the murder of Combs, but Williams died of natural causes prior to trial. Other factual aspects of the case will be discussed infra as they are pertinent to appellants' assignments of error.

Defendants first allege that the court below erred by refusing to grant a defense motion for a change of venue. The ground cited for the motion was the adverse publicity which allegedly led to public prejudice against the defendants in Canyon County wherein the trial took place. A newspaper item on the day following the slaying which contained the headline, 'Shotgunner slays Parma policeman,' coupled with a picture of the defendants and a picture of the slain policeman is alleged to have been highly prejudicial toward the defendants. Defendants also allege that a public and successful fund drive for the widow of the slain policeman led to community prejudice against them. They contend that it was impossible for them to receive a fair trial in such an atmosphere and that a change of venue should have been granted.

It is clear that the granting of a change of venue lies within the discretion of the trial court and where it appears that the defendant actually received a fair trial and that there was no difficulty experienced in selecting a jury, refusal to grant a change of venue is not a ground for reversal. State v. Bitz, 93 Idaho 239, 460 P.2d 374 (1969); State v. Cypher, 92 Idaho 159, 438 P.2d 904 (1968). Our statutory requirement is that the jury not receive 'any evidence out of court other than that resulting from a view of the premises * * *.' I.C. § 19-2406. The record herein indicates that none of the sitting jurymen were challenged for cause. The defense exercised only nine of its preemptory challenges. As we stated in Bitz:

'If appellant were dissatisfied with the jury and believed that any juror was prejudiced against him, he should have raised the issue by challenging that juror for cause. His failure to do so indicates a satisfaction with the jury as finally constituted.'

Defendants rely on the cases of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). We note that the carnival atmosphere present in those cases is nonexistent in the case at bar. As was stated in Sheppard, the most important of the constitutional requirements in the area of protection against pre-trial publicity is that the 'jury's verdict be based on evidence received in open court, not from outside sources.' Where such circumstances do not exist as would show inherent probability of prejudice, the accused has the burden of showing essential unfairness as a demonstrable reality. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). There has been no showing by the defendants of any essential unfairness as a demonstrable reality or that the jury's verdict was probably based on evidence received from outside sources and not received in open court. While the newspaper article may have been inflammatory, there is no showing that the publicity engendered by the murder and the alleged community outrage was so widespread and finely directed at the defendants that it was impossible or even improbable to obtain a fair trial. As the court has said:

'* * * it is not sufficient merely to show that prejudice exists against the accused; it must appear that the prejudice against him is of such magnitude as to prevent him from receiving a fair and impartial trial; and where the evidence before the court is conflicting, its decision will not be reversed upon appeal.' State v. Cypher, supra, 92 Idaho at 166, 438 P.2d at 911.

See also State v. Polson, 92 Idaho 615, 448 P.2d 229 (1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765.

Defendant Thomas assigns as error the ruling of the trial court admitting in evidence those shotgun shells found in the shed where he was apprehended. The shells were shown to have been the same gauge, shot size and brand name as those used in the homicide and identical to the type purchased earlier in the same evening by the defendants. It is alleged that these shells should not have been allowed in evidence since they were not found on Thomas' person or in the car in which he was found. The finding of the shells in the shed where Thomas was apprehended was of sufficient probative value to circumstantially implicate Thomas in the perpetration of the murder. There is no requirement that weapons or bullets offered in evidence be positively identified as those used in the perpetration of a crime. The admission of such evidence is within the sound discretion of the trial court and any objection to the lack of positive identification goes to the weight of the evidence rather than to the admissibility of the article. State v. Rodriguez, 93 Idaho 286, 460 P.2d 711 (1969). There is no showing as contended by the defendant Thomas that the evidence was so inflammatory that the emotional impact outweighed the possible evidentiary value of the exhibits.

Defendant Drapeau assigns as error the ruling of the trial court admitting into evidence a shoe which Drapeau was wearing at the time of his arrest and a matching shoe which was found in the wrecked police vehicle. There was ample testimony from an expert witness that the shoes had common wear characteristics and his opinion was that the two shoes could have been a pair. Any objection thereto went to the weight of the evidence, not to the admissibility of the exhibits.

Both defendants assign as error on the part of the trial court its ruling admitting testimony containing reference to other crimes or possible crimes committed by the defendants during the course of the evening prior to the homicide, during the homicide, or shortly thereafter. That testimony concerned the fact that the automobile from which the fatal shotgun blast was fired was stolen earlier in the evening from a used car lot and that the shotgun was stolen from the office of the used car lot. Additional testimony related to the possible attempted theft of a pickup from a motel and the identification of the defendants as participants therein. Objection was also made to testimony surrounding the shots fired at Wong in the police car and the theft of the police car. We note that no objection was made at trial to the testimony now assigned as error. All of such evidence was probative of the participation in the events of that evening leading up to and culminating with the killing of Combs and the wounding of Wong and the theft of the police car. All such testimony was probative of the guilt of the defendants of the ultimate crime charged. Defendants did not assert at trial nor do they assert here that the relation of the events in question by the witnesses who testified are untrue. We know of no rule of law that requires the State to so restrict its proof when the evidence which is so highly probative of the crime charged also reveals the commission of other crimes. If the evidence has no real bearing on the guilt or innocence of the accused and would be highly prejudicial, then such of course should be excluded. Such is not the case herein. State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969); State v. Cypher, supra.

Defendant Drapeau assigns error to an instruction of the trial court on the standards for justified or excusable homicide in the event that the prosecution had proven the commission of a homicide by the defendants beyond a reasonable doubt. Drapeau contends that such instruction shifted to him the burden of proof as to his innocence which of course would be...