Valerio v. State
| Decision Date | 23 June 1967 |
| Docket Number | No. 3507,3507 |
| Citation | 429 P.2d 317 |
| Parties | Ruben Eliu VALERIO, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Vincent A. Ross, Cheyenne, for appellant.
Dean W. Borthwick, Atty. Gen., Jack Speight, Asst. Atty. Gen., Cheyenne, William D. Norman, Sp. Asst. Atty. Gen., for appellee.
Before GRAY, McINTYRE, and PARKER, JJ.
Ruben Eliu Valerio was convicted by a jury of armed robbery and sentenced to a term in the Wyoming Penitentiary. He comes to us on appeal claiming error in his trial (1) because the prosecution made it appear defendant had previously stolen a bicycle; (2) because the prosecution allowed a witness to refer to having been threatened on a previous occasion, with an inference that defendant was involved in the threatening; and (3) because the prosecuting witness, who had changed his original story to the police, was allowed to testify the change in his story was made on account of the possibility of a lie detector test.
Pete Junior Bonney, the person who had been robbed, was asked at the trial if he had ever had any trouble with defendant. He answered, 'No trouble.' Afterwards he was asked when he first had any conversation or dealings with the defendant. The witness answered: 'Well, one time when I went to the little store and I left my bike parked there he took it.'
Counsel for defendant objected to the answer as not being the proper method to impeach defendant and moved for a mistrial. The judge denied the motion, stating he thought the matter irrelevant. The prosecutor stated the testimony was offered not to prove the defendant took the bicycle but for the purpose of showing the defendant was known to the witness.
In the absence of the matter being pursued further, we doubt that the answer of the prosecuting witness materially prejudiced defendant. However, of more importance is the fact that it was material for the state to show the defendant was known to the witness from past connections, and the testimony given was admissible for that purpose.
As a general rule, it can be said proper evidence to identify accused as the person who committed a crime is not to be excluded because it tends to prove he was guilty of another and independent crime. 22A C.J.S. Criminal Law § 684, pp. 756-758. See also McCormick on Evidence § 157, pp. 327-330, where it is stated evidence of an accused having committed a crime other than that for which he is charged is admissible to prove identity. 'This is accepted,' the author states, 'as one of the ultimate purposes for which evidence of other criminal conduct will be received.'
Our court, in State v. Lindsay, 77 Wyo. 410, 317 P.2d 506, 510, recognized that evidence is not to be excluded because it tends to show the commission of other offenses 'where it tends to prove facts material in the trial'. And the following cases have held testimony about one's previous criminal activity can be introduced in the current trial if the purpose of such introduction is to establish identity, guilty knowledge, intent or motive: Stewart v. United States, 9 Cir., 311 F.2d 109, 112; United States v. Frascone, 2 Cir., 299 F.2d 824, 828-829, certiorari denied 370 U.S. 910, 82 S.Ct. 1257, 8 L.Ed.2d 404; Hughes v. United States, 10 Cir., 320 F.2d 459, 461-462, certiorari denied 375 U.S. 966, 84 S.Ct. 483, 11 L.Ed.2d 415.
With respect to appellant's second assignment, the prosecuting witness, Bonney, admitted he first told the police the person who took the money from him was a colored boy, instead of telling them it was defendant. Asked why he told them that he answered:
'Well, because of-There was a mix up in Laramie about a month before that I had some trouble because somebody thought I had told on them about them robbing up in Laramie.'
The record indicates counsel for defendant objected at this point on the ground that the testimony was irrelevant. The court sustained the objection. Although defendant's attorney has filed an affidavit stating he made a motion for mistrial on account of this testimony and that the court reporter failed to correctly record what transpired, the record fails to support him, and we cannot go outside the record.
Thus, the court having sustained defendant's only objection to the answer pertaining to the witness' reason for not telling the police the truth at first, we cannot afford further relief where further relief was not requested of the trial...
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Crozier v. State
...because it tends to show the commission of other offenses 'where it tends to prove facts material in the trial.' " Valerio v. State, Wyo., 429 P.2d 317, 318 (1967). Another recognized exception to the Rule 404(b) exclusionary rule is that evidence of other criminal activity is admissible if......
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Hopkinson v. State
...material which is not part of the record. Burns v. State, Wyo., 574 P.2d 422 (1978). We cannot go outside the record. Valerio v. State, Wyo., 429 P.2d 317, 319 (1967). With respect to plain error, this court has recently reiterated the test to determine whether it exists: " * * * First, the......
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...to decide whether such conduct rose to the level of prosecutorial misconduct and, if so, the appropriate cure. See Valerio v. State , 429 P.2d 317, 319 (Wyo. 1967) (" ‘It is incumbent upon the complaining party to point out with definiteness and particularity the error of which he complains......
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