Tucker v. State, 5038

• Decision Date: 08 May 1979
• Docket Number: No. 5038,5038
• Citation: 594 P.2d 470
• Parties: Ivan Joe TUCKER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 470

594 P.2d 470

Ivan Joe TUCKER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5038.

Supreme Court of Wyoming.

May 8, 1979.

Rehearing Denied June 12, 1979.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Patrick J. Murphy, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Leonard D. Munker, Asst. Atty. Gen., Cheyenne, for appellee.

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

McCLINTOCK, Justice.

Ivan Joe Tucker was arrested, charged and convicted of two counts of aggravated assault with a dangerous or deadly weapon in violation of § 6-70B, W.S.1957, 1975 Cum.Supp., ¹ as a result of a shooting incident that occurred in an alleyway behind the Mint Bar in Sheridan on the evening of November 11, 1977. Tucker raises two issues by his appeal but we believe the substance of the two questions is whether there is sufficient evidence of eyewitness identification of Tucker as the person who committed the crime charged to sustain the conviction. We affirm.

On the evening of November 11 Tucker was playing pool in the Mint Bar in Sheridan. According to the testimony at trial he was bantering with others in attendance and, as one witness described his behavior, was rather obnoxious. He was playing pool with at least three other individuals. These individuals and other witnesses in the bar testified at trial and gave a general description of his physical characteristics and dress. In particular, the witnesses noted his cowboy hat, a low-crowned, or flat-topped, black hat that several people described as a cheap "dude hat." His facial features, including his beard and mustache, were also singled out for identification. He was described as a "flashy" dresser wearing shiny, red leather boots, brown pants and a light brown turtleneck with two chains or necklaces visible over the shirt. A distinctive belt buckle was also noted. Tucker was clearly identified by seven witnesses as being at the Mint Bar, and playing pool in the back portion of the building on the night in question, although Tucker denied having been present.

Sometime that evening, William George Benedict came into the bar apparently looking for a friend. Steven Cleo Kobold, an acquaintance, was already there and playing pool. Benedict noticed Tucker, but the two had no apparent conversations or disagreement. After a short time, at about 10:30 p. m., Tucker was seen leaving by the rear door of the bar. Within one or two minutes Benedict left by the same door.

Benedict testified at trial that he stepped into the alley, down the stairs, and was walking toward the east. At that moment someone said, "Hold it right there." He spun around and saw a man in a black cowboy hat extend his arms forward towards him and heard the report of what he described as a small caliber handgun. He did not, however, see the weapon. Instantly he ran for the doorway, about five or six steps away. He pushed the door open and there was met by Kobold who had stepped into the doorway. Kobold pulled Benedict into the bar. Benedict testified that he had a good view of the shooter for the light in the alley, although artificial, was good. Based upon his view of Tucker in the bar and his view in the alley, he testified that he was satisfied but not "positive" Tucker was the man who shot him. He clearly recognized the hat and the facial hair. Benedict apparently was hit in the abdomen by a single round from a small caliber weapon but the bullet was never recovered.

Kobold was at the bar that night playing pool. He recognized Tucker as being present and in fact played pool with or against him. He saw Tucker leave by the back door moments before Benedict also left. He heard one shot and moved toward the door in time to pull Benedict into the bar. At that time he had one foot outside the building, on the step of the exit, and one foot inside. He was then facing west and saw the man shoot at him with what he believed to be a small-caliber handgun. He testified the man fired twice, once at Benedict and once at him. He testified he recognized the man as Tucker because of his "scraggly little beard," mustache and distinctive cowboy hat. He believed a handgun was used because the man extended his arm before firing. The lighting was sufficient for the identification for there was a street lamp on the east end of the alley and the sign for the Mint Bar at the west end, both of which reflected light on the man. On cross-examination Kobold felt he could not be positive the man was Tucker but he believed it was. Both Kobold and Benedict had ample opportunity to see Tucker in the Mint Bar just minutes before the shooting. Kobold then reentered the bar where Benedict was being aided.

Based on information received by them, Sheridan police officers went to Tucker's home in Sheridan on January 13, 1978 and arrested Tucker. In addition, armed with a search warrant, the police recovered a .22 caliber handgun, a pair of boots, pants, turtleneck and belt buckle roughly matching the dress of Tucker as described in the bar by witnesses. On November 12 a black, low-crowned cowboy hat, matching the description of the one worn by Tucker the night before, was found near the loading dock of a local Sheridan business.

At trial, in addition to the testimony of the witnesses, several items of demonstrative evidence were...