Vigil v. State

• Decision Date: 26 April 1977
• Docket Number: No. 4659,4659
• Citation: 563 P.2d 1344
• Parties: Merle Charles VIGIL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1344

563 P.2d 1344

Merle Charles VIGIL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4659.

Supreme Court of Wyoming.

April 26, 1977.

Robert A. Magee, Public Defender for Laramie County, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and John P. Faure, Legal Intern, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellee.

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

RAPER, Justice.

Appellant-defendant was found guilty by jury verdicts of five counts of assault with a deadly weapon and sentenced by the trial judge on only one count to a penitentiary term. The issues as raised by the defendant are: 1. Whether bond was excessive and, if so, denied defendant a fair trial; 2. Whether permitting the jury to return verdicts on all five counts constitutes double jeopardy and, additionally, denied a fair trial to defendant; 3. Whether Instruction No. 9, on intent, was proper. We will affirm.

Immediately following arrest in early March, 1975, defendant's appearance bond was initially set at $25,000.00. Ten days later, it was reduced to $15,000.00 with 10 percent cash to be deposited as collateral and defendant was released when posted. A few days later, defendant was arrested on another charge alleged to have accrued following release; bond on that charge was fixed at $10,000.00 with a 10 percent deposit. Because of the additional charge, on motion of the State, defendant's bond on the instant charge was modified to withdraw the 10 percent provision, resulting in bond being fixed at a full $15,000.00 cash, which defendant was unable to arrange, resulting in incarceration.

In May, 1975, defendant's bond was modified to permit release by deposit of 15 percent of $15,000.00, which he could not make. A few days later, it was again modified to permit deposit of 10 percent of the principal amount. In June, 1975, it was further altered to $10,000.00, 10 percent deposit. There was another reduction to $7,500.00, 10 percent deposit. On September 5, 1975, a final reduction to $5,000.00, 10 percent cash, and proviso that defendant not leave the state was ordered. Defendant posted bond and was released. Concurrently, trial was set for October 27, 1975. It is noted from the record defendant requested a continuance of his trial first set for May, 1975, and the court specifically found that the State was ready for trial at that time.

Defendant's claim is that because of his confinement, he was unable to adequately assist in the preparation of his defense. Because of this, he asserts that there could not be a fair trial because in the five months of jail time, he lost track of his witnesses and had less than two months to locate them, before trial.

After conviction, bail questions are usually mooted and cannot be raised on appeal. ¹ 8B Moore's Federal Practice-Criminal Rules, § 46.02, p. 46-11. The question of bail does not directly touch the merits of the charge against the defendant. Moore, § 46.04, p. 46-17.

Rule 8(h), W.R.Cr.P., provides the remedy for complaints related to bail and is interlocutory in nature:

'Any accused person aggrieved by the application of this rule may apply for a writ of habeas corpus.'

This tracks Federal Rule 46, F.R.Cr.P., and the Bail Reform Act of 1966, 18 U.S.C., § 3141, et seq., incorporated by reference in Rule 46, F.R.Cr.P., 18 U.S.C. Section 3147(b), in particular, grants an interlocutory right of appeal to the court having appellate jurisdiction over the court denying bail as moved by the defendant. Instead of providing interlocutory relief by way of appeal in this jurisdiction, it is furnished by rule through the device of habeas corpus. Habeas corpus is the appropriate remedy in the ordinary situation to test the excessiveness of bail. ² The proper procedure to challenge bail is to move for reduction and seek habeas corpus upon denial.

Ordinarily, also, determination of the amount of bail is committed to the sound discretion of the trial judge, and his decision will not be disturbed except in case of a clear abuse of discretion. He is in the best position to have a hold on the entire situation. Miller v. State, Wyo.1977, 560 P.2d 739; State ex rel. Powell v. Ilsley, Wyo.1963, 387 P.2d 676, 678.

However, in determining the precise issue before us, we cannot summarily apply the rules of mootness and trial judge discretion. We must deal with the defendant's exact point that failure to release him on bail he could meet, until a late date, deprived him of a fair trial. That is not one of the criteria mentioned in Rule 8(c)(2), W.R.Cr.P. The guidelines there set out are as follows:

'In determining which conditions of release will reasonably assure appearance, the judicial officer shall, on the basis of available information, take into account the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused's family ties, employment, financial resources, character and mental condition, the length of his residence in the community, his record of convictions and his record of appearance at court proceedings or of flight to avoid prosecution or failure to appear at court proceedings.'

The considerations listed in Rule 8 go only to measures related to the risk of flight involved and are to be applied only to the extent they tie in with the likelihood of defendant's appearance.

It has long been settled that the sole function of bail is to exact assurance from the accused that he will stand trial and submit to sentence if found guilty. Stack v. Boyle, 1951, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. The court there said: 'Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is 'excessive' under the Eighth Amendment.' ³

The defendant's argument probably has its inception in Stack because the court there in a few almost buried words said that: 'This traditional right to freedom before conviction permits the unhampered preparation of a defense, * * *.' 342 U.S. at 4, 72 S.Ct. at 3, 96 L.Ed. at 6. Those words, however, must be reckoned with and, of course, are subordinate to the primary consideration of guaranteeing presence for trial and sentence, if found guilty. A desire to be free in order to prepare a defense is only one of several criteria to be considered. United States v. Radford, 4 Cir. 1966, 361 F.2d 777, cert. den. 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105. It is the totality of circumstances that govern.

There were here a mulititude of bail reduction hearings. Collectively, they indicate that the defendant was an appearance risk. His juvenile and adult record discloses a continuing conflict with the law of both Wyoming and Colorado, though with a remarkable record of acquittals. He was twice found not guilty of murder, once in Wyoming and subsequently in Colorado. He was acquitted several times or released because of a hung jury from Colorado charges of robbery. He had convictions for minor offenses; his military background was unfavorable in that he was court-martialed, resulting in a bad conduct discharge. In the year previous to the current offenses, he had been convicted of assault at the misdemeanor level and served out his sentence. His record of court appearances, while free on bond, has been free of any bail-jumping. His employment record was practically nil, partly because of his being in and out of jail awaiting trial. While the defendant has family in Cheyenne, their association with him was not close.

The nature and circumstances of the offense charged, matters for consideration under Rule 8(c)(2), W.R.Cr.P., were serious, the defendant being charged with five counts of assault with a dangerous weapon, all felonies with up to 14 years on each as a possibility. The inference is that the more serious the offense, the greater the appearance risk. The weight of the evidence against the accused was not adequately presented to the court, at least for our consideration, only the claims of the prosecutor being made. The trial judge would be better acquainted with the reliance he places upon the representations of the county attorney. The evidence did turn out to be strongly against the defendant but we must look back to the time of fixing bail.

We cannot see where the defendant was prejudiced in the preparation for his trial. During the entire time, while awaiting trial, he had the benefit of counsel, to whom he could have furnished the names of witnesses. He claimed, however, that he only knew them by sight but knew how to find them if he were free to do so. Apparently, he also failed to give any leads to his attorneys and appeared to be less than frank with the court. His claim in that connection, however, was so vague and uncertain that it would be difficult to place much stock in this representations. In United States v. Pomeroy, 9 Cir. 1973, 485 F.2d 272, cert. den. 415 U.S. 981, 94 S.Ct. 1571, 39 L.Ed.2d 877, a case where counsel was having difficulty locating witnesses and needing the assistance of defendant, denial of bail was held not improper where defendant's counsel had several weeks to locate them but defendant had not furnished names. In that case, defendant was finally released, without bail, at the close of the government's case to locate them.

In this case, when the defendant did finally make bail, he had almost two months to locate his witnesses and produce them. Defendant's alibi witness at trial was his 17-year old wife whom he had married four days previous. She testified she and defendant were in Denver on the day and at the time of the offenses charged. She testified that they were at her sister's house at a known address in Denver. Her sister, husband and two kids were there. She called her mother in Cheyenne long-distance. In her sister's home she stated she a...