Wilson v. State

• Decision Date: 30 December 1982
• Docket Number: No. 5732,5732
• Citation: 655 P.2d 1246
• Parties: Lonnie Eugene WILSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1246

655 P.2d 1246

Lonnie Eugene WILSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5732.

Supreme Court of Wyoming.

Dec. 30, 1982.

Sylvia Lee Hackl, Appellate Counsel, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, and Michael A. Blonigen, student intern (argued), for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Sr. Asst. Atty. Gen., and Michael L. Hubbard, Asst. Atty. Gen. (argued), for appellee.

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

RAPER, Justice.

This is the last of the appeals taken by the defendants charged with sexual assault and associated crimes upon a somewhat deaf and retarded victim in a Cheyenne park. ¹ Appellant in this appeal was found guilty by a jury of sexual assault in the second degree in violation of § 6-4-303, W.S.1977, aiding and abetting first degree forcible sexual assault in violation of §§ 6-1-114 and 6-4-302(a)(i), W.S.1977, and aiding and abetting an attempted first degree forcible sexual assault in violation of § 6-1-201, W.S.1977, Cum.Supp.1982, and §§ 6-1-114, and 6-4-302(a)(i), W.S.1977. He was remanded to the state penitentiary to serve concurrent sentences on each of the counts for which he was found guilty; as an ultimate result, he received not less than five nor more than eight years.

In this appeal he raises as issues:

1. "Whether the use of solely hearsay information to support a finding of probable cause at the preliminary hearing resulted in substantial prejudice to appellant's right to effective counsel."

2. "Whether the instruction on consent allowed the jury to convict the appellant of a crime he had not been charged with and of which he had no notice."

We will affirm.

The victim of the sexual assaults by her three assailants was not present to testify at the preliminary hearing held following the filing of criminal complaints arising out of the multiple attacks made upon her. The assaults took place on October 21, 1981, the criminal complaints were filed on October 23, 1981, and the preliminary hearing was held on October 29, 1981.

The preliminary hearing was conducted as to all three defendants, including appellant. The defendants, including appellant, objected to the preliminary hearing going ahead without the presence and testimony of the victim and moved for a continuance so that she could be subpoenaed for their cross-examination. The prosecuting attorney explained her absence in response to the motion:

"In any event, Your Honor, the victim in this case is a woman who has a learning disability, who has impaired speech, who wears a hearing aid and has seriously impaired hearing acuity. As a result of this incident, where she was slapped on the ears, her hearing aid in her right ear, as I recall, injured the inner ear where at this time she is in pain to where she can't wear her hearing aid. She would be available if this court insisted that she appear, but the rules do not contemplate nor require that she appear. It's not in the best interest of this victim. And we are also here to protect the victim and her interests, as well as to protect the interest of these accused, and to protect the interests of the people of this state.

"So, what I am saying is, Your Honor, we really should go forward at this time, as the state contemplates, and that will be, as we represent to the court, on the hearsay testimony, within the rules of evidence of this court."

The objection was overruled and the motion denied.

The State produced two witnesses to establish probable cause. A deputy sheriff, who had participated in the investigation of the sexual assaults and who was present at the time the victim was first interviewed by a female officer of the sheriff's department, testified as to the product of his investigation. The female officer--communications supervisor--of the sheriff's department testified as to the results of her interview of the victim.

The sheriff's deputy, at the interview, obtained from the victim a description of the vehicle in which she was placed when abducted. It was a green, two door automobile with a cracked windshield, the radio removed from the dash, crumpled newspapers and a blue jacket on the floor, seat belt on the driver's side missing, a red baby seat in the rear, a half-gallon size bottle on the floor, and other identifying features. She described two of her three attackers as black, named Willie and Mike, and the other as white with a pony tail.

The testimony disclosed that one of the attackers had removed a ring which she had made from her finger and had taken off her hearing aids. A ring, answering the description given by the victim, was recovered by search warrant from the appellant's room. The deputy observed red welts and a bruise on the victim's neck and that she was upset and appeared frightened while being interviewed. When the witness saw her later, her bruises were "starting to raise real good." Armed with the descriptions given, a vehicle and occupants answering the description were picked up. It was, upon examination by the witness, found to be a green, two door automobile with cracked windshield, the radio removed from the dash, crumpled newspapers and blue jacket on the floor, seat belt on the driver's side missing, a red baby seat in the rear seat, a half gallon liquor bottle on the floor, and had the other features described by the victim. ² The officer further testified that the occupants of the described vehicle when apprehended were one black and one white, named Michael Evans and Mark Haight, respectively. The officer witness testified that the victim was reluctant to discuss the sexual acts with males in the room, so he left and the interview continued in the presence of the female officers.

The victim later, in the presence of the witness, identified the appellant in a six man photo lineup, as the one referred to as Willie. His photo had been selected because it matched the description of one of her attackers which the victim had given the witness. His wallet was also found in the siezed vehicle.

The second witness, Linda Selby, of the Sheriff's office, interviewed the victim. She described her appearance as very tired, her eyes puffy from crying, and withdrawn but "jumpy." There was a mark on her neck. The victim's statement to this witness was that upon returning to her home from a Safeway store, ³ she noticed a green car with two black males in it following her. As she went around to the back of the house, and as she was chaining up her dog, the two black males got out of the car in the alley near her. One of them grabbed her by the hair and threw her into the back seat of the car and they drove off. They used the names Willie and Mike. Willie picked up from his sister a key to her apartment in Sun Valley, a subdivision of Cheyenne, drove there and went in, where Mike took off her clothes and on the bedroom floor he sexually assaulted her by inserting "his penis into her uterus [sic]." After that, appellant's sister returned to the apartment, whereupon appellant, Evans, and the victim left. They then picked up a white friend, Haight, the one with the pony tail, and drove to Lions Park in northwest Cheyenne where they parked. While there a police car drove by. The victim was pushed down in the back seat out of sight when she tried to yell for help.

The witness went on to testify that the victim related that after that appellant got into the back seat and took his turn at sexually assaulting the victim, as had Evans, by inserting "his penis into her uterus [sic]." It was then that appellant took off her hearing aids and threw one outside the car. The victim was yelling at the time, and appellant threatened to hit her if she did not shut up. After an unsuccessful attempt by Haight to compel oral sex with her by pushing her face down on his penis, she was let off at a local Mini Mart, where the Cheyenne police department was called.

The foregoing witness also pointed out the appellant in the county courtroom as the same person whom the victim identified as Willie at the photo lineup. At the same time the witness identified, in a similar manner, the other defendants. Officer Selby also testified she was with the victim when they followed the route which the victim described as the one taken during the course of the evening of sexual episodes.

After hearing the testimony just summarized, the county judge found probable cause and the appellant, along with the other defendants, was bound over to the district court.

I

The use of hearsay testimony to establish probable cause at a preliminary hearing is practically a universally approved practice. In Wyoming the basic authorization appears in Rule 7(b), W.R.Cr.P.:

"If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the commissioner shall forthwith hold him to answer in district court. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 16 and Rule 40(e)." (Emphasis added.)

This court has had little occasion to, in disposition of an issue raised on appeal, approve the use of hearsay evidence for the purpose of establishing probable cause at a preliminary hearing. It has apparently more or less been taken for granted, particularly in light of the explicit language of Rule 7(b), supra. In dealing with another question, this court in Weddle v. State, Wyo., 621 P.2d 231 (1980), said in passing that "[t]he value of cross-examination at a preliminary hearing is questionable inasmuch...