Bill CORSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 88-26.
Supreme Court of Wyoming.
Dec. 27, 1988.
766 P.2d 1155
CARDINE, Chief Justice.
Assuming arguendo that appellant‘s proposed testimony was relevant, there is no indication that the trial court abused its discretion in rejecting such testimony nor is there any explanation in the majority opinion why the court was not justified in excluding the testimony under
Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. [Citation.] Martin v. State, 720 P.2d 894, 897 (Wyo. 1986).
Under Rule 403 the court may exclude relevant evidence if such evidence tends to confuse the issues or mislead the jury. The testimony proposed by appellant is a classic example of evidence likely to confuse the issues and mislead the jury. If the court had allowed the alleged impeachment testimony proposed by appellant, then, to be consistent, the court should allow the state to produce witnesses to impeach the testimony of appellant‘s witnesses. All of this could result in two dozen mini-trials to determine who had impeached whom. The jury would likely be so confused that it would lose sight of the trial issue, that is, the guilt or innocence of the accused.
An ancient and very successful trial tactic in criminal cases is for the accused to put the victim on trial and thus divert the jury‘s attention. For example, in murder cases, the accused tries to produce evidence tending to show that the deceased was a bad man and society has suffered no great loss. In rape cases the accused tries to produce evidence designed to show that the victim was Jezebel reincarnated and deserved what she got. Here, there was no identifiable victim so appellant tried to divert attention to the state‘s witness.
The trial court did not abuse its discretion in excluding the impeachment testimony proposed by appellant. To allow such testimony would confuse the issue and mislead the jury. This court has held many times that:
Determinations of admissibility under Rule 403 are * * * committed to the discretion of the trial judge. His decision will not be reversed on appeal so long as a legitimate basis exists supporting it. Ortega v. State, 669 P.2d 935, 944 (1983). See also Hopkinson v. State, 632 P.2d 79, 126 (Wyo.1981); Buhrle v. State, 627 P.2d 1374, 1380 (Wyo.1981); Grabill v. State, 621 P.2d 802, 810 (Wyo.1980); Nimmo v. State, 603 P.2d 386, 392 (Wyo.1979); Elliott v. State, 600 P.2d 1044, 1049 (Wyo. 1979); Sanville v. State, 593 P.2d 1340, 1345 (Wyo.1979).
Rule 403 also permits the court to exclude cumulative evidence. In this case appellant produced testimony that the state‘s witness, Officer Lauck, used drugs. Therefore, the proposed testimony by the six witnesses was merely cumulative and not admissible.
I would affirm the conviction.
Joseph B. Meyer, Atty. Gen., John R. Renneisen, Deputy Atty. Gen. Karen A. Byrne, Asst. Atty. Gen., and Michele J. Neves (argued), Legal Intern, for appellee.
Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.*
CARDINE, Chief Justice.
This appeal is from appellant‘s burglary conviction by a seventh judicial district court jury. The only issue presented for our determination, as stated by appellant, is as follows:
“Did the prosecution fail to present sufficient evidence to find the defendant guilty beyond a reasonable doubt?”
We affirm.
On February 5, 1986, between 12:15 a.m. and approximately 7:00 a.m., the Hideaway Bar in Mills, Wyoming was burglarized. Taken in the burglary were 334 quarters from a video machine, 20 packages of Marlboro cigarettes, 20 packs of Marlboro Lights, 10 packs of Winstons, 10 packs of Merit cigarettes, money and a coin box from a cigarette machine. The employee who closed the bar testified that after locking the front door of the bar from the inside, he left through the back door. The employee stated that although it had been snowing heavily earlier, the snowfall had subsided as he was leaving the bar.
At approximately 7:00 a.m. that morning, the bar owner, Mr. Dale Sterner, entered the Hideaway Bar through the back door. He did not recall seeing any footprints near the back door. Once inside the bar he noticed that the front door was ajar. Upon further examination, he determined that there had been a break-in and notified the Mills police department.
Officer Dan Schirlinger of the Mills police department responded to the burglary call. He noted two sets of footprints in the heavy wet snow near the front door. One set of footprints appeared to be made by a soft-soled shoe, and the other set by a cowboy boot with pointed toes. While the footprints led away from the bar, there was apparently no evidence of prints leading to the front door. The officer followed the footprints from the Hideaway Bar to the front door of appellant‘s trailer. There were no footprints coming away from the front door of the trailer, and there were no footprints at the trailer‘s back door.
A back-up officer from the Natrona County sheriff‘s department was summoned, and the two officers made contact with appellant, who invited the officers inside. Appellant, his wife and children appeared to have just gotten out of bed.
Approximately five hours later, the Mills police department conducted a search at appellant‘s residence. As a result of this search, officers seized a rusty tire iron, a pry bar, a screwdriver wrapped in a pair of gloves and a flashlight. None of the stolen items were recovered in the search, although appellant, Tageant, and Mrs. Corson all had freshly opened packs of Marlboro cigarettes. Appellant and Tageant were arrested for burglary on February 6, 1986. On March 3, 1986, a criminal complaint was filed charging appellant with one count of burglary in violation of
Appellant contends that the prosecution failed to present sufficient evidence to support a conviction and that the trial court erred in refusing to grant appellant‘s motion for a judgment of acquittal. In addressing a challenge to the sufficiency of the evidence, a reviewing court must examine all the evidence in a light most favorable to the State to determine if there is sufficient evidence to uphold the verdict. Dangel v. State, Wyo., 724 P.2d 1145, 1148 (1986), citing Broom v. State, Wyo., 695 P.2d 640 (1985). This court does not act as a jury for purposes of deciding criminal guilt or innocence, but will review the record to determine whether it contains sufficient evidence to support the jury‘s verdict. Wells v. State, Wyo., 613 P.2d 201, 202 (1980). In Capshaw v. State, Wyo., 737 P.2d 740, 744-45 (1987), we explained:
“It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence.” (Quoting Broom v. State, 695 P.2d at 642.)
In the present case, drawing all inferences and resolving all evidentiary conflicts in favor of the State, we must affirm appellant‘s conviction.
Appellant‘s attack focuses on the evidence of bootprints and burglary tools, which provided the most damaging links between appellant and the crime. The undisputed weaknesses in the bootprint evidence were: (1) no measurements were taken of the prints; (2) the prints appeared to be made from pointed-toe boots rather than the square-toe boots which appellant owned; (3) the investigating officers did not notice any wetness on appellant‘s boots, although they noticed that Tageant‘s shoes showed signs of wetness; and (4) the investigating officers did not recognize any prints leading toward the burglary site, but only away from it. In light of this evidence, the jury could have drawn inferences which created reasonable doubt that the bootprints were left by appellant. Other evidence, however, provided a reasonable basis for the jury to conclude that the bootprints were indeed those of appellant. (1) Although no measurements were taken, the investigating officer who viewed the comparative sizes of the boots and the prints testified that the prints were consistent with appellant‘s boots. (2) Even though the bootprints were pointed-toed and appellant‘s boots were square-toed, the investigating officer testified that a person‘s gait could explain the disparity. The defense did not discredit this theory, and
With respect to the burglary tools, an expert from the State crime lab testified that paint found on the pry bar was physically and chemically consistent with the paint on the doorjamb at the burglary site, and metallic flakes on the tire iron were physically similar to the metal of the door‘s locking mechanism. Thus, the jury could have reasonably concluded that the tools were used in the break-in. Although no fingerprints were identified on the tools, they were found in a cabinet under appellant‘s kitchen sink, easily within his access. This evidence clearly added strength to the State‘s case against appellant.
In our opinion affirming the conviction of appellant‘s codefendant, we made the following assessment of the sufficiency of the evidence:
“The jury had evidence before it of two sets of footprints leading from the bar to the trailer—one of flat-soled shoes and one of cowboy boots. There were no other footprints. On the morning after the burglary, [Tageant‘s] soggy, flat-soled shoes were discovered in the trailer. Corson owned only a pair of cowboy boots. Both Corson and [Tageant] were present in the trailer the morning after the burglary * * *. Tools suitable for use in such a burglary were found in the trailer in a place accessible to both of the men. The paint chips on the tools were chemically similar to the paint chips taken from the bar.
“On the basis of this evidence, the jury could have found that the tools were used in the burglary, that the footprints were those of [Tageant] and Corson, that Corson attempted to cover up the burglary, that [Tageant] was concealed in the trailer, and that both [Tageant] and Corson had access to the burglary tools. Applying the applicable standard of appellate review, this court finds that there was sufficient evidence for the jury to find [Tageant] guilty beyond a reasonable doubt.” Tageant v. State, Wyo., 737 P.2d 764, 767 (1987).
These observations apply to this case as well.
In his brief, appellant implies that prosecutorial misconduct occurred during the State‘s closing argument. Appellant did not structure this issue as an independent ground for reversal but made reference to it as part of his sufficiency of the evidence argument. We have already concluded that the evidence was sufficient to support appellant‘s conviction; and consequently, we need not address the prosecutorial misconduct argument.
AFFIRMED.
URBIGKIT, J., files a dissenting opinion.
URBIGKIT, Justice, dissenting.
There comes a time for some criminal proceedings when, if proof beyond a reasonable doubt means anything, insufficient evidence exists for submission of a criminal case to the jury or to sustain the conviction if rendered. The Constitution of the United States prohibits the criminal conviction of any person, except upon proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), reh‘g denied 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 1074-1075, 25 L.Ed.2d 368, 377-78 (1970).
Even after applying our oft-stated appellate rules for criminal case sufficiency of evidence to sustain the burden of guilt beyond a reasonable doubt by resolution of conflicts or inferences favorable to the State, Corson was not convicted by persuasive evidence. Goodwine v. State, 764 P.2d 680 (Wyo.1988). As contemplated by the majority, a number of things could have been the cause for the unavailability of persuasive evidence, but supposition is not evidence of guilt. Smith v. State, 40 Wyo. 128, 274 P. 1074 (1929).
Corson was not in the bar early in the evening. Mulligan v. State, 513 P.2d 180 (1973), overruled on other grounds sub nom. Blakely v. State, 542 P.2d 857 (Wyo. 1975). Tracks found did not match his boots as obtained upon search of his residence. King v. State, 718 P.2d 452 (Wyo. 1986). The stolen merchandise was not recovered from him. Cf. Downs v. State, 581 P.2d 610 (Wyo.1978). Definitive connection of the tire iron or screwdriver physically to the building entry incident was not made, except as a possibility. State v. Anderson, 229 Neb. 436, 427 N.W.2d 770 (1988); Watson v. State, 752 S.W.2d 217 (Tex.App.1988). Connection of these normal household tools separately to either the host or the guest was not made, except by availability. See also the thoughtful and persuasive dissent of Armstrong, D.J., Retired, which more nearly attunes to criteria required by the United States Supreme Court in Jackson, 443 U.S. 307 and In re Winship, 397 U.S. 358 for adequacy of evidence to sustain a conviction for a criminal offense. Downs, 581 P.2d at 618. To be repetitive, if Corson had been given a separate trial from his house guest, the viability of the prosecution‘s case would have been de minimis. Prosecutorial misconduct on final argument singularly relates to the insufficiency of proper evidence. A stated supposition of the prosecutor which lacked total evidentiary support offers justification to me that conjecture rather than evidence contributed to the verdict of guilt.1 State v. George, 40 Wyo. 95, 275 P. 112 (1929); Gardner v. State, 27 Wyo. 316, 196 P. 750 (1921); State v. Bay, 529 So.2d 845 (La. 1988); State v. Bearden, 748 S.W.2d 753 (Mo.App.1988). Prosecutorial misstatement achieves a higher level of concern when evidence of guilt is seriously in question. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988); State v. Beuke, 38 Ohio St.3d 29, 526 N.E.2d 274 (1988). As Justice Jerome Frank said in his powerful dissent:
“A keen observer has said that ‘next to perjury, prejudice is the main cause of miscarriages of justice.’ If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that thirteenth juror, prejudice.” Beuke, 526 N.E.2d at 293 (quoting from United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2nd Cir.), cert. denied 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946)).
In recent past, this court has maintained its historical responsibility in constitutional diligence to provide fairness and due process and to protect the innocent. Frias v. State, 722 P.2d 135 (Wyo.1986); Schmunk v. State, 714 P.2d 724 (Wyo.1986). Wildly sprung assumptions and possibilities aside, this decision fails to find a level of reliable evidence which should suffice to sustain conviction. United States v. Samuels, 801 F.2d 1052 (1986), reh‘g denied 808 F.2d 1298 (8th Cir.1987); Pearson v. State, 523 N.E.2d 747 (Ind.1988).
Reliability as the test is comprehensively synthesized in State v. Mussall, 523 So.2d 1305, 1309-10 (La.1988) (quoting from Jackson, 443 U.S. at 319) in application of the Jackson conclusion:
The Jackson v. Virginia doctrine involves more than simply applying a fixed standard to measure the simple quantum of the evidence produced in a case. Careful study must be given to both the majority and concurring opinions to fully understand the precise methodology which must be followed to determine objectively whether any rational trier of fact would have had a subjective doubt about the defendant‘s guilt. First, a review of a criminal conviction record for sufficiency of evidence does not require a court to ““ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt[.]‘” Second, a reviewing court must consider the record through the eyes of a hypothetical rational trier of fact who interprets all of the evidence as favorably to the prosecution as any rational fact finder can. Third, the inquiry requires the reviewing court to ask whether such a hypothetical rational trier of fact interpreting all of the evidence in this manner could have found the essential elements of the crime beyond a reasonable doubt.
The principal criterion of a Jackson v. Virginia review is rationality. This is because under Winship and Jackson Fourteenth Amendment due process demands that in state trials, as has been demanded traditionally in federal trials, a criminal conviction cannot constitutionally stand if it is based on a record from which no rational trier of fact could find guilt beyond a reasonable doubt. Accordingly, under the Jackson methodology a reviewing court is required to view the evidence from the perspective of a hypothetical rational trier of fact in determining whether such an unconstitutional conviction has occurred. In reviewing the evidence, the whole record must be considered because a rational trier of fact would consider all of the evidence, and the actual trier of fact is presumed to have acted rationally until it appears otherwise. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier‘s view of all of the evidence most favorable to the prosecution must be adopted. Thus, irrational decisions to convict will be overturned, rational decisions to convict will be upheld, and the actual fact finder‘s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. [Emphasis in original and footnotes omitted.]
In giving meaning to the Jackson standard, the evidence must be “both substantial and sufficient” to support the determination of guilt beyond a reasonable doubt, Reilly v. State, 496 P.2d 899 (Wyo.1972), reh‘g denied 498 P.2d 1236 (Wyo.1972); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973), and may not be based on guessing, speculation or conjecture. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Urso, 129 Colo. 292, 269 P.2d 709 (1954). A conviction cannot be based on evidence which is consistent with both innocence and guilt. United States v. Ortiz, 445 F.2d 1100 (10th Cir.), cert. denied 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971). Furthermore, opportunity alone cannot suffice to provide a basis for a guilt determination. In State v. Morris, 41 Wyo. 128, 155, 283 P. 406, 414 (1929)
“Admitting it proved to have existed, it does not necessarily follow that it was actually taken advantage of by the party shown to have possessed it; or that it was not taken advantage of by another person. In order to give it this effect, where it is solely or chiefly relied on, the circumstances tending to show its existence must be exclusive in their operation, by demonstrating that no other person had, or could have had the opportunity possessed by the accused, and that, therefore, by a necessary consequence, none but he could have committed the crime.”
Supposition and conjecture aside, this court reaches the stature of lacking viable evidence considered by the Indiana court required in Cobbs v. State, 528 N.E.2d 62, 64 (Ind.1988) (quoting from Baker v. State, 236 Ind. 55, 62, 138 N.E.2d 641, 645 (1956)), where evidence was lacking “so that no reasonable man could say that this issue had been proved beyond a reasonable doubt.” See Fredericks, 857 F.2d 733, where no witness could actually connect the defendant by real evidence as likewise comparable in insufficiency of evidence to convict. If the evidence supports an inference rather than guilt, a finding of guilt beyond a reasonable doubt is not a rational finding. Watson v. State, 752 S.W.2d 217, 223 (Tex.App.1988); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983).
As here presented, the reconstruction of something that might have been proved and the inference of untoward participation lacks sufficiency to meet constitutional criteria. King, 718 P.2d 452. This is only conjecture. State v. Rideout, 450 P.2d 452 (Wyo.1969); State v. Paulas, 74 Wyo. 269, 286 P.2d 1041 (1955); Gardner, 196 P. 750. A rational and reasoned examiner could not realistically find substantial, credible evidence here sufficient to avoid the jury “arbitrarily convicting of crime.” Reilly, 496 P.2d at 905.
In reality, Corson was convicted in this case on unproven conjecture by the prosecutor in final argument, the circumstance that Corson exercised a constitutional right not to testify, and by wet boots and footprints of a visitor at his mobile home residence. Cf. Gardner, 196 P. 750.2 This court in past times in the greater perspective of Wyoming law has not been unwilling to discard guess and conjecture and require more. As initiated in the early case of Palmerston v. Territory, 3 Wyo. 333, 23 P. 73 (1890) and more recently quoted in dissent by Justice Rose, one of the more informed and thoughtful past jurists of this court, in Wells v. State, 613 P.2d 201, 205 (Wyo.1980):
This court had occasion to define the reasonable-doubt standard early in its history. In Palmerston v. Territory, 3 Wyo. 333, 23 P. 73, 73 (1890), we took issue with a jury instruction which stated in part that
““... The proof is to be deemed sufficient when the evidence is sufficient to impress the judgment of ordinarily prudent men with a conviction on which they would act in an important affair of their own.’ ...”
“... [T]he jury must be so convinced by the evidence * * * of the defendant‘s guilt that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests, under circumstances where there was no compulsion resting upon him to act at all.’ ...” Id. at 23 P. 74. [Footnote omitted.]
In this case, conjecture is substituted for certitude about the facts in issue. State v. Osmus, 73 Wyo. 183, 276 P.2d 469 (1954); Morris, 283 P. 406; George, 275 P. 112; Smith, 274 P. 1074; Gardner, 196 P. 750; In re Winship, 397 U.S. 358, 90 S.Ct. 1068. As Chief Justice Blume considered:
“‘[I]t is not enough that the evidence in the case goes to show his guilt, but such evidence must be entirely inconsistent with a reasonable supposition of innocence. Suspicions, however strong, or probabilities, however great, will not be sufficient to justify a conviction, but the evidence, to justify a conviction must be positive, convincing, establishing the defendant guilty of the charge contained in the indictment beyond a reasonable doubt, * * * .‘”
Osmus, 73 Wyo. at 220, 276 P.2d at 483-84 (quoting from State v. Walser, 318 Mo. 833, 1 S.W.2d 147, 151 (1927)).
This conviction lacking that practical, rational and constitutional level of proof should be reversed.
RICHARD V. THOMAS
JUSTICE