Raigosa v. State
562 P.2d 1009
Wyo.
1977
Check Treatment

*1 RAIGOSA, Appellant Eduardo below),

(Defendant Wyoming, Appellee

The STATE

(Plaintiff below).

No. Wyoming. Court of

Supreme 11, 1977.

April

10H *3 Tristani, King Asst. Public Defender for signed Cheyenne, County, Laramie argument on in oral appeared brief appellant. behalf Mendicino, V. Frank Atty. Gen., and Ar- Hanscum, T. Gen., thur Asst. Atty. Chey- enne, signed the brief and Arthur T. appeared Hanscum argument oral on . appellee. behalf of the GUTHRIE, J., Before C. and McCLIN- TOCK, RAPER, ROSE, THOMAS and JJ. RAPER, Justice. Defendant-appellant was guilty found degree second murder of a six- 6-55, old child under year W.S.1957, period to a sentenced not less than 25 nor years more than 35 in the Wyoming State Penitentiary. From the judgment and sen- prosecuted tence he has appeal, this assert- ing points (1) three of error: the district improperly court admitted statements made arrest; confessions him following improperly spanking admitted court deceased and lost his (2) temper. the district death; (3) trial, as to cause of evidence At it was through established opinion improperly denied submis- court testimony expert district of an pathologist jury instructions. requested of three sion deceased had died from a lacerated liver shock, and resultant internal bleeding with affirm. We will caused, by heavy blow. 10, 1975, Cheyenne police re- June On claim that it was Appellant’s improper Upon go to a local address. a call ceived for the district court to admit into evidence upstairs arrival, were directed the officers statements post-arrest and confessions is where two ambulance scene a revulsive (1) on three founded contentions: his arrest working on a small female were attendants subsequent detention were floor, without apparently dead. lying child cause; (2) probable (torso, statements and con- body badly bruised child’s involuntary arms), fessions and made cut and her head had been with- legs, *4 counsel; proper (3) were blood stains on the benefit of There the 42- shaved. fecal carpet delay and matter on between his “arraign- and hour arrest and walls response questioning by to offi- appearance In floor. ment” before commis- [initial cers, indicated that the child had defendant unnecessary was and thus a viola- sioner] period Denver for a of time and had been tion of Rule W.R.Cr.P. We shall in cars, injured between two but that no been that order deal with each contention. given had been nor attention medical concluded, The district court and authorities been notified. appropriate party challenges, neither that the actions of that the child’s head had been indicated He in escorting the officers defendant to the disciplinary aas measure about a shaved patrol car constituted person a detention of before; and that the fecal matter was week liberty time, from and al after that dog excrement. Defendant the de- argued resulted in an arrest. It is mother, girl’s Linda Onofrey, ceased warrantless arrest found was Cheyenne taken to the police then station probable cause. ed on Verbal evidence questioning. further for during custody obtained unlawful must be police station, arrival at the After de- illegal excluded as the fruits of a forbidden at first refused to make a state- fendant States, Wong 1963, v. United arrest. Sun then immediately He almost ment. 471, 486, 407, 416-417, 83 S.Ct. 371 U.S. 9 mind, stating changed his that if he did 441, Wong applicable 453. L.Ed.2d Sun them, they get story anyway tell Illinois, 1975, the states. Brown v. to 422 young lady, apparent an reference from 590, 2254, 95 45 U.S. S.Ct. L.Ed.2d 416. Nor mother. After signing the deceased’s a giving mere does the Miranda warn form indicating waiver that he standard illegal the taint of ing remove arrest. police, to furnish a statement to the wished Illinois, supra. v. Brown provide sign did his first Just what subsequent tape-recorded probable constitutes A statement. cause, equivalent or its functional was taken later that in Wyo afternoon statement law, ming (§ 7-12.3, grounds handwritten reasonable another statement taken W.S.1957, evening. Cum.Supp.) A that same fourth state- sufficient to autho later 1 arrest, is, was not admitted rize a warrantless many taken at trial. like other ment law, things three in the incapable his first statements indicated of of exact defini Each begun the accused had As was tion. observed in Bivens v. Six generally provides: “(ii) 7-12.3 grounds Section He 1. has reasonable to believe felony, that a as defined may section 6-2 of person “(a) peace arrest a A officer has been him until a statutes committed and he and detain has rea- warrant without grounds believing when: for can be obtained sonable legal warrant being it; “(i) Any offense is commit- criminal be arrested has committed or presence to be arrest- in his ted ed:

1013 Federal Bu erations of Agents everyday life on which Named reason- Unknown 1972, 456 1339, Narcotics, men, 2 Cir. F.2d prudent able and not legal reau techni- City 1348, quoted cians, in Rodarte and as act. The proof standard of is ac- Riverton, 552 P.2d 1245: cordingly correlative to must be what “ proved.” dissents, concurrences numerous ‘The reversals, especially in the last dec- The facts and circumstances considered ade, expe- that even learned and indicate proof not amount to guilt, need or even difficulty have had jurists rienced prima guilt facie evidence of but must be govern a determi- defining the rules that suspicion. than bare Brinegar more cause, with or without probable nation States, supra, United 338 U.S. at 69 * * * a warrant. 93 L.Ed. proba S.Ct. at 1889. The correctly civil case but it standard Rodarte ble cause for warrantless arrests constitutional standard balancing the federal represents states of interests. It is a establishing probable cause in criminal nontechnical practical, concept affording for which reasona- two, to be that constitutes cases between compromise many op times page P.2d at 552 Section bleness. interests. In posing, Gerstein v. Pugh, is couched terms of reasonable- 103, 112, 7-12.3 854, 862, U.S. S.Ct. 54, 64, ness. L.Ed.2d on remand 511 F.2d Cir., quoted Brinegar: Court from Rodarte, States, Williams v. In United “ * * * [prudent man], 323 F.2d cert. den. 376 This standard Cir. 659, 11 cited, seizures, L.Ed.2d rep- 84 S.Ct. like those for searches and *5 States, Brinegar v. United necessary from quoting resents accommodation be- 160, 175-176, 69 S.Ct. right 338 U.S. tween the individual’s to liberty and 1879, 1890, 1310-1311, L.Ed. reh. den. 338 duty to control crime. State’s “ 513: 94 L.Ed. S.Ct. U.S. long-prevailing ‘These standards seek to ‘“ all the definitions” “The substance of safeguard citizens from rash and unrea- probable ground cause “is a reasonable privacy interferences with sonable and * * * Probable guilt.” for belief of charges unfounded of crime. They from cause exists where “the facts and circum- give leeway also seek to fair for enforc- within their knowl- stances community’s law in the ing protec- [the officers’] they edge reasonably and of which many situations which tion. Because trustworthy information sufficient [are] in the course of execu- confront officers themselves to warrant a man of rea- ambigu- are more or less ting their duties sonable caution in the belief that” an offense [*] [*] [*] has t)1 been or is being committed. ous, takes on must be room those of reasonable their must be allowed for some mis- part. But men, mistakes acting leading sensibly to their facts conclu- applicable standards to an officer are probable The rule of equal applied probability. to those to sions of a commissioner non-technical practical, concep- issuance of an arrest is a before warrant. Lof cause State, Wyo.1971, affording compromise the best ton v. cert. tion accommodating 406 U.S. S.Ct. 32 L.Ed.2d has found for these den. been and opposing Requiring Rules 3 W.R.Cr.P. interests. more often hamper unduly law enforcement. probable But the rule of cause less would be to leave To allow law-abid- good applied with sense with a must be mercy citizens at the of the officers’ ing practicality. Supreme to As the Court view ” at caprice.’ whim or [338 Brinegar has said in of the United States 93 L.Ed. at S.Ct. 1890-1891.] States, supra: United cases, cause, however, From the cited it can be deter dealing probable “In with protections mined the federal have their very name we deal with implies, as the technical; Fourth Fifth roots in the Amendments probabilities. These are practical Compa- consid- the United Constitution. they are the factual States officer, are the fecal matter on the with the same intent floor result- provisions rabie Wyo- Article I of the dog. in sections of ed from the child’s fear and not a found questionable as follows: With such circumstances ming Constitution information, as well physi- as the deceased’s to right people of the be secure “4. The background, drawing cal condition as a houses, papers and ef- persons, their of a conclusion accused had com- unreasonable searches and against fects mitted a crime not unreasonable. With violated, no war- shall not be seizures cause, probable such a foundation as cause, upon probable issue but shall rant improper. arrest was not warrantless To affidavit, by particularly de- supported the defendant under not arrest those cir- scribing place to be searched or would, indeed, have been a cumstances der- thing be seized.” to duty. eliction of compelled shall be “11. No testify against any support himself in criminal Defendant’s second contention in ” * * * case, suppression only asserts that not his confessions statements made invol- standards, meet all federal our we Since untarily, but that he was provided also not probable the matter of cause decision on making with counsel before them as re- upon provisions will be based above 7-9.3, W.S.1957, Cum.Supp.2 quired Constitution and not the Wyoming Con- beyond He claims it was not shown a rea- of the United States. Richmond v. stitution that his sonable doubt confessions were vol- 554 P.2d 1217. this, untary separate and that either from question The basic raised conjunction counsel, or in with his lack of initial assertion is whether or defendant’s requires suppression. from the facts and circumstances arrest, just prior to a reasonable argument known Neither carries much have been judge, man would led to be The trial (prudent) required merit. as he was do, that defendant had committed the in approved procedure lieve followed by con crime, not whether a crime ducting separate hearing, had been pres stant why asked jury, When child was ence of the legality committed. determine the *6 extent, replied to such an defendant injured and voluntariness of defendant’s statements spent State, some time in Denver Dodge Wyo. she had and confessions. v. that and 303; accidentally caught 1977, State, been between two Lonquest had 562 P.2d cars; 575, also indicated no accident but he re 495 P.2d cert. den. 409 1006, any had been made nor was medical port S.Ct. 34 L.Ed.2d U.S. sought. He said the Lego Twomey, deceased’s attention shaved as a disciplinary head had been 30 L.Ed.2d 618. From the evi S.Ct. measure, yet bleeding a cut was visible on at this presented hearing, dence the trial skull, object. from a apparently blunt concluded that the statements judge the and initially when he the stated entered confessions were taken and volun He that stairs, lying the child was on the apartment tarily suppression accordingly made and was was found there. To the con yet Although by no blood the which denied. standard marking was found the walls trary, blood evidence of voluntariness was measured was indicting struggle announced, a had occurred. To the a review of the exhibits not 7-9.3(a), pertinent part, provides: court, upon charge, in 2. Section as the formal case be, may clearly right shall inform him of the being by “If a who is detained a represented needy person by of to be officer, a an or who law-enforcement is under for- attorney public expense, committed, at and if the charge having being of or is mal charged of, or does not detained have an attor- detained under a conviction serious ney, notify public crime, by defender or represented attorney trial court an un- is not concerned, be, may person having as case that he is his der conditions in which ” * * * represented. repre- so would be entitled to be so own counsel sented, right appoint- officers con- Defendant was advised of his the law-enforcement detention, cerned, upon commencement of or ed counsel. clearly that testimony presented arrest, shows hour of the the delay has not been prepon- announced standard of recently our prejudicial. shown pointed As out in Rich- demonstrating evidence3 derance mond, requirements Miranda have de- voluntariness, been met. As concerns importance creased the and softened the counsel, request of no for lack defendant’s 5(a). Rule impact of Though we put no Quite made. to the con- was ever counsel approval stamp of any on improper delay fact, evidence at the trary, in adduced place, which takes it did not here affect the hearing trial that suppression indicated validity of defendant’s statements and con- of his writing defendant was notified fessions which were not by extracted reason rights, right including the constitutional prolonged detention, of his nor was there counsel, otherwise, least indigent if showing any that the detention was for the times; each time knowingly were four purpose squeezing of out a confession. waived, one waiver being at least made of admission defendant’s statements and right having thus writing. The counsel confessions was not error. waived, argument based been defendant’s viable; and 7-9.3 is not admission Commonwealth ex rel Czako v. not er- his statements and confessions was Maroney, Pa. 194 A.2d ror. case only by cited defendant in support of his claim that a jury coroner’s should third for Defendant’s contention have been called to determine cause of on an suppression centers assertion and, therefore, death the testimony of an' two-day delay between arrest less than expert improper, support any does not appearance and initial commissioner fact, reason to reverse. In it is to the and thus a of Rule unnecessary violation It contrary. was there that held the find pointed by As W.R.Cr.P.4 our ing coroner’s jury binding of a is on no one in Richmond v. there supra, decision judgment, as a the court going on to say: rule is no hard and fast as to what consti “ * ** “unnecessary delay”; inquest if tutes and even such is for the purpose [A]n found, delay protecting public is it itself does interest. It is protection make admissions confessions inadmissi not for of an offender and Each stand definitely ble. case must on its own facts. not a necessary ingredient is A process. due a murder Here, Richmond, as in the bulk complain case has no cause to that an incriminating defendant’s statements ” * * * was not inquest conducted. arrest, e., shortly after i. given very agree Pennsylvania We with the hours, court. four and were mo apparently within requirement no inquest There is an be assumption tivated an on defendant’s prosecution held before for murder. Walk police get story part People, er v. 126 Colo. mother, anyway. the deceased child’s from 287. The verdict of a coroner’s prove The burden is on defendant to *7 advisory W.R.Cr.P.; merely probative and has 5(a), no ef violation of Rule and that Am.Jur.2d, fect. 18 or admission of Coroners product his confession or was a Medical Examiners, 15, p. has been 529. also § his detention. There no evidence See Annota tion A.L.R.2d police here that the the de 78 entitled presented “Reviewing, used aside, any setting of the Al or lay quashing to extract confessions. of verdict at coro hours, of though length delay, inquest.” the the 42 is ner’s There is Wyoming in no slightly light requirement in of the proximi statutory inquest troublesome for an to be ty justice peace a the daytime precedent of of and the condition prosecution. held as a to Dodge Wyoming, supra. of unnecessary 3. v. State delay arrested without the before nearest available commissioner. W.R.Cr.P., as 4. Rule is follows: a arrested without a When warrant is making “An an arrest a warrant commissioner, officer under brought complaint before a a complaint upon any person issued a or mak- be filed forthwith.” shall ing an arrest without a warrant shall take the 7-91, to through jury. as amended tions the Our 7-81 discussion See shall be §§ provisions are statutory The to two of superseded. only limited the three refused a was only an aid to assure death clearly as the objec- instructions record reflects no contrary or the unlawfully caused to having not at all tion been made to the denial of law enforcement. concerning aid instruction of the diminished ca- 31, W.R.Cr.P.; Rule pacity. State, Sims v. expert settled that an It is well 530 P.2d Wyo.1975, Hays v. of opinion as to cause death may state 522 P.2d 1004. 3 Wharton’s Criminal Evi case. homicide Ed., dence, p. also 13th See Defendant asserts the refusal Annotation, 1087, supple A.L.R.2d by the trial court of his offered instruction menting 136 A.L.R. entitled “Admissi State, 1942, Eagan on Wyo. based opinion of evidence as to cause of bility P.2d was error. The refused in disease, death, injury.” particularly is or It jury’s the struction concerned acceptance of patent in a case such as this where essential testimony of an accused the when he is the not may entirely of death cause be evidence sole witness of charged transaction as a conclusive, e., by damage i. liver external Eagan upon states crime. the fulfill Annotation, resulting in death.5 See force ment of certain jury conditions the is limit 283, entitled “Necessity 65 A.L.R.3d its judge ed in role as sole of a witness’s Prosecution, Effect, Expert in Homicide credibility and the accused's testimony must Testimony as to Cause of Death.” Medical accepted. bar, be In the ease only not court, baby-killing case this the In a before some required Eagan were of the conditions of a expert testimony physician proper was fulfilled,6 but jury adequately ly received establish infant was informed as to its role on witness credibility alive in order to the death born establish by and limitations thereof numerous other criminal resulted from the conduct of instructions. When the principles aof re State, Wyo.1963, Bennett v. defendant. instruction, correct, even fused if have been heavy has a P.2d 634. The burden State sufficiently by covered other establishing guilt of a defendant instructions, refusal its is not error. Mares is jury’s quest function for truth. State, Wyo.1972, 539. The jury deprived not be The should evidence testify elected not to expect defendant but important finding assist in its fact that will accept ed the statements favorable prefer That defendant would function. him, question, without excerpted from have evidence of cause of death not to given he had police. the statements We it, prejudice. before does not cause say that the instruction would dam point third final age Defendant’s the defendant explanations because his error the trial court de improperly improbable asserts so and so inconsistent with requested nied submission of three facts instruc- and circumstances that it would medical 5. On initial examination (heavy blow) tion was the external trauma child, the exact cause of death could be by kicking stomping caused the defendant’s any certainty. determined with None of the opinion child. Medical cause of death is signs outward could be considered conclusive. proper. thus being A cut the head caused child against heating suspect. thrown radiator Eagan upon 6. The rule of relied as the basis bruises, girl’s body was covered with little an instruction is as follows: new, abrasions, well as old and as some “ * * * an Where accused the sole wit- *8 evidencing bleeding, over and others scabbed crime, charged ness of a transaction as a as vicinity bleeding vagina. as as the the well bar, testimony the his case at cannot be Autopsy quart over revealed blood in the arbitrarily rejected, credibility and if his has cavity and the bladder abdominal lacerated. impeached, testimony not been and his is not bruised, kidneys slight hemorrhage improbable, not inconsistent with evident, the bladder there was blood in in the shown, lungs facts and circumstances but is rea- ribs and some broken. None of therewith, sonably except consistent the torn lacerated liver then his testi- conditions ” * * * mony accepted. would have caused death. The causal connec- be should jury attention of additional only draw position. implausibility The AMERICAN NATIONAL BANK OF DENVER, Trustee, Appellant urges error in Finally, (Plaintiff below), to the effect his instruction

the refusal State, it uses an accused’s con if v. exculpatory state fessions, is bound AUTHORITY, HOUSING CHEYENNE them to jury finds therein unless ments (Defendant below). Appellee of a similar instruc The refusal be false. State, v. Wyo. in Alcala upheld tion No. 4643. 997, 448, 1971, cert. den. 405 U.S. 487 P.2d Supreme Wyoming. Court of 466, 1259, reh. den. 406 31 L.Ed.2d 92 S.Ct. 823, 31 L.Ed.2d both 92 S.Ct. April exculpatory state falsity because by circumstantial evi was shown ments requiring the cited rule and because

dence general accept lacked

the instruction 462; elsewhere, P.2d at State

ance

Casaus, N.M. 386 P.2d Parker, 1960, 33 N.J. State reasoning is equally 575. Such

A.2d Additionally, here. the defend

applicable argue to the point could

ant favorable to him. We can find no

anything give of the court to in refusal

error

instruction. a fair trial. Af-

The defendant received

firmed. Justice,

ROSE, concurring, in specially Justice, McCLINTOCK, joins.

which majority opinion, with the

I can concur exception: following

with court, hand, again the out of dis-

Once Federal constitutional the defendant’s

cards though respects even in all

right appeal, preserved. I only say again violently am

I can what I consider to be this arbi-

opposed to appellate practice of

trary and unauthorized Justice court. See McCLINTOCK’S

this in Richmond v.

concurring opinion joined which I with

Wyo., separate concurring opinion on detailed my special concur- subject. also See State, Wyo., 562 P.2d 303 Dodge v.

rence in 24, 1977).

(decided March