Rands v. State , 1991 Wyo. LEXIS 150 ( 1991 )

MACY, Justice.

Appellant Steven Rands appeals from his convictions for conspiracy to commit first-degree murder in violation of Wyo.Stat. §§ 6-1-303 (1988) and 6-2-101 (Supp.1991) and for aggravated burglary in violation of Wyo.Stat. § 6-3-301 (1988).¹

We affirm.

Appellant presents the following issues for our review:

I. Whether the evidence was sufficient to sustain the conviction for conspiracy to commit murder in the first degree.

II. Whether the State violated W.R.Cr.P. 15(e)(6) by introducing statements made at a change of plea hearing at trial.

III. Whether the State violated Defendant’s sixth amendment right to confront witnesses, by introducing out of court statements made by a co-defendant at trial.

In the evening of November 22, 1989, Karen Head and Michael Head were driving their car to Lusk, Wyoming. As they proceeded north on highway 85, Appellant began following them in his car and drove within one or two feet of the rear bumper of their car. Appellant began to pull his vehicle up beside the Heads’ vehicle as if he were going to pass. Instead, Appellant kept his car in a position just short of being parallel with the Heads’ vehicle. All of a sudden, the passenger in Appellant’s car, Gerald Ellett, fired a shot from a pistol, striking Mr. Head in the back. Appellant’s vehicle passed the Heads’ vehicle and slowly drove away. Mr. Head was not seriously injured. One day later, the police arrested Appellant in Torrington, Wyoming, and searched his car. Among other things, the police found a .38 caliber pistol, a flashlight, and a number of coins. One of the cartridges in the gun had been fired. On November 25, 1989, Mr. and Mrs. James Gamble returned to their home in Torring-ton, Wyoming, and discovered that it had been burglarized. The Gambles reported that a gun, a flashlight, three twenty-dollar bills, and a number of coins were missing from their house.

Appellant was charged with conspiracy to commit first-degree murder and aggravated burglary. Appellant initially pleaded not guilty and later attempted to change his plea to guilty. The district court refused to accept Appellant’s change of plea, however, because Appellant failed to provide a sufficient factual basis for the plea. The matter continued, and Appellant’s case went to trial.

At trial, Appellant gave the following account of events. Appellant and Ellett were traveling north on highway 85 when Ellett saw a woman who looked like his ex-wife in the passenger seat of a car. Appellant followed the car while he and Ellett discussed Ellett’s past relationship and his bitter feelings for his ex-wife. Ellett asked Appellant to pull their vehicle up beside the Heads’ vehicle so he could see if the woman was his ex-wife. Ellett said that he wanted to scare the woman, and then Appellant heard the gunshot. Appellant denied having any prior knowledge of Ellett’s intent to shoot at the car. Appellant also testified that he and Ellett went to the Gambles’ house and that Ellett went into the house and took several items. Appellant claimed that he did not enter the house.

The jury found Appellant guilty of conspiracy to commit first-degree murder and aggravated burglary. The district court sentenced Appellant to imprisonment at the Wyoming State Penitentiary for the remainder of his life for his conviction of conspiracy to commit first-degree murder and for a minimum of seventeen years and a maximum of twenty years for his conviction of aggravated burglary. The sentences were to run consecutively.

Appellant’s first argument challenges the sufficiency of the evidence upon which the jury relied to convict him of conspiracy to commit first-degree murder. To determine if a conviction is supported by sufficient evidence, we examine all the evidence in the light most favorable to the State. Roose v. State, 759 P.2d 478 (Wyo.1988).

“[I]t is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State.

* * * * * *

“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.” Broom v. State, Wyo., 695 P.2d 640, 642 (1985) (citations omitted).

Id. at 487.

The elements of conspiracy are prescribed in § 6-l-303(a):

(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.

In Bigelow v. State, 768 P.2d 558, 561 (Wyo.1989) (quoting Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977)), we stated:

“A conspiracy is an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts performed to further the unlawful design.”

The elements of first-degree murder are set out in § 6-2-101(a):

(a) Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping, kills any human being is guilty of murder in the first degree.

To conclude that the evidence is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt, we must examine two questions. First, did Appellant and another person agree to “purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, arson, robbery, burglary, escape, resisting arrest or kidnapping,” kill a human being? Second, did Appellant or the other agreeing person do an overt act to effect the objective of their agreement?

“[Circumstantial evidence can be relied on to prove the conspiracy because of the covert nature of the crime itself.” Bigelow, 768 P.2d at 563. Likewise, the premeditation and deliberation elements of first-degree murder may be inferred from the circumstances. Murry v. State, 713 P.2d 202 (Wyo.1986). Malice may be inferred from the use of a deadly weapon. Id.; Leitel v. State, 579 P.2d 421 (Wyo.1978). Viewed in a light most favorable to the State, the record shows that Appellant drove his car up behind the Heads’ car as it was traveling down the highway at a relatively high rate of speed. Appellant followed the Heads within two feet of their vehicle and then slowly pulled his vehicle up beside their vehicle. As Appellant maintained that position, Ellett fired a shot from a .38 caliber pistol at the Heads’ car. The bullet went into the passenger compartment of the car and struck Mr. Head. In addition, a police officer who interviewed Appellant testified that Appellant said Ellett had possession of the pistol at the Gambles’ residence and that Appellant said he may have told Ellett, preceding the shooting, to “ ‘[b]low that motherfucker’s head off.’ ” That evidence is sufficient to support the jury’s conclusions that Appellant and another person agreed to “purposely and with premeditated malice” kill a human being and that Appellant or the other agreeing person did an overt act to effect the objective of their agreement.

Appellant also contends that the district court erred when it allowed the prosecution to read statements in the presence of the jury which were made by Appellant during his attempt to establish a factual basis for a guilty plea. During trial, the following colloquy occurred:

Q Mr. Rands, do you recall testifying under oath at a previous Court appearance that you did in fact enter the residence of Mr. Gamble[]?

A I take the Fifth Amendment on that.

Q I would ask the Court to instruct the witness to answer the question.

THE COURT: Mr. Rands, this is not a charge of a crime. I don’t know what it is. What do you have first of all? Go ahead.

MR. FITCH: I have Mr. Rands under oath stating, “I left my house, went to that house, and I took three $20 bills from the house.” And I also have Mr. Rands stating, in response to Mr. Kissinger’s questions, question, “Mr. [Ellett] entered the home with you at the same time you did?” And Mr, Rands stating, “Mr. [Ellett] entered the house and I came in.”

THE COURT: Has Mr. Kissinger seen that?

MR: FITCH: He has a copy of the transcript.

THE COURT: Would you show it to Mr. Rands, please? Mr. Kissinger, you have a copy of this. Show it to Mr. Rands.

Q (by Mr. Fitch) What’s the date on that?

A The date on this is February 1, 1990. I don’t need to see it, Mr. Fitch. Yes, I said that.

Q You said that under oath?

A Yes.

Q Is that true?

A I believe I stated that due to the fact that I was going to get four 2 hour contact visits if I pled guilty.

Q You lied under oath thinking you could get contact visits?

A Yes.

At the change of plea hearing, the district court found that Appellant failed to establish a factual basis for a guilty plea and refused to accept Appellant’s plea.

W.R.Cr.P. 15(e)(6) states:

Except as otherwise provided in this paragraph, evidence of a plea of guilty, later withdrawn, or a plea of nolo conten-dere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

Because Appellant failed to object to the admissibility of his prior statements, we must analyze his alleged error under our plain error doctrine. W.R.Cr.P. 49(b); W.R.A.P. 7.05; W.R.E. 103(d); Bland v. State, 803 P.2d 856 (Wyo.1990); Bradley v. State, 635 P.2d 1161 (Wyo.1981); Leeper v. State, 589 P.2d 379 (Wyo.1979). The determination of whether plain error exists depends upon the following three-part test:

“First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced.”

Ramos v. State, 806 P.2d 822, 827 (Wyo.1991) (quoting Bradley, 635 P.2d at 1164).

Our analysis of Appellant’s assertion begins and ends with the third prong of the plain error test. We hold that Appellant was not materially prejudiced by the admission of the testimony from the change of plea hearing. The quoted excerpt from the trial transcript indicates that Appellant went into the Gambles’ house and took $60 and that Appellant lied under oath. Both of those facts were supported by testimony which was not related to the change of plea hearing. An officer who interviewed Appellant testified that Appellant said he went into the house and took items which belonged to the Gambles. The officer also stated that Appellant described where items were located inside the Gambles’ house. That testimony, in addition to the testimony from the officers who searched Appellant’s car and found some of the Gambles’ possessions, including a gun, was sufficient to support Appellant’s conviction for aggravated burglary.² See Britt v. State, 734 P.2d 980 (Wyo.1987) (holding that a gun taken during a burglary satisfies the deadly weapon requirement of § 6-3-301(c)(i)), and Downs v. State, 581 P.2d 610 (Wyo.1978) (holding that possession of stolen property is strong evidence of guilt).

Appellant asserts that two statements made during the trial and one question asked by the prosecutor during the direct examination of a witness violated his rights under the confrontation clause of the sixth amendment to the United States Constitution. The first statement which Appellant complains about was made by an officer in response to a question by Appellant’s attorney. Appellant’s attorney asked the officer how he found a metal box which had been taken from the Gambles’ house. The officer said, “Through an admission of the other defendant, Gerald [El-lett], who told me that he had thrown the box out along Mile Square Road.”

The statement made in response to a question asked by Appellant’s attorney is not reversible error. While the statement may be hearsay, any error attributable to the district court’s failure to exclude it or to strike it from the record was invited by Appellant’s attorney. “Invited errors will not normally be grounds for reversal unless they go beyond a pertinent reply or are necessarily prejudicial.” Sanville v. State, 593 P.2d 1340, 1345 (Wyo.1979). The officer’s statement was a direct response to the query and, therefore, was no more than a pertinent reply. In addition, the statement was not necessarily prejudicial because other evidence existed which was sufficient to support Appellant’s conviction for aggravated burglary.

The second statement which Appellant complains about occurred during the following dialogue:

Q Now, in this particular ease, you have expressed a belief that [Ellett’s] fingerprints were not lifted off of anything that you were able to lift?

A That’s correct.

Q And that you had an explanation for that?

A I do.

Q And what was that explanation?

A Well, in subsequent interviews that Undersheriff Murphy and I had with Gerald Jones Ellett.

Appellant’s attorney objected to the statement referring to interviews with Ellett because he believed that the prosecutor was asking the witness to repeat Ellett’s statements. The district court sustained Appellant’s objection and instructed the witness not to testify about what Ellett said. As a result, Appellant claims that the district court committed reversible error. Appellant has failed, however, to support his position with cogent argument or cogent authority. We will not address issues which are not supported by cogent argument or cogent authority. Bland, 803 P.2d 856.

Appellant also contends that his right to confront witnesses against him was violated when the prosecutor asked questions of an undersheriff about a pretrial conference the prosecutor had with the undersheriff, Appellant, and Appellant’s attorney. During the direct examination, the prosecutor asked the following question:

Q And when we were all there talking, there was information out on the table that is not here today, including what [Ellett] said, activities that are not within the evidence presented at this trial?

Appellant’s attorney did not object to the question, and the witness did not reveal the content of Ellett’s statements. Once again, we apply the plain error doctrine and hold that Appellant is not entitled to a reversal because he has failed to show that he was materially prejudiced by the question. See Bradley, 635 P.2d 1161.

Appellant also contends that his right to a fair trial was violated when the prosecutor asked the following question during voir dire:

[W]hat if * * * the guy [a hypothetical co-defendant] with the bat, we can’t call for him [to] testify, and we can’t, if he made a statement of any kind, you can’t bring that statement in because it is hearsay, would you feel that case was woefully inadequate solely because any interview process or statement made by the guy with the bat was not brought to your attention during the course of the trial?

Appellant argues that the question was prejudicial because the prospective jurors were alerted that a co-defendant existed who made statements about Appellant which would not be admissible during his trial. Appellant’s attorney did not object to the question..

We hold that the question does not give rise to plain error. Except for the statement which a witness made in response to a question asked by Appellant’s attorney, the co-defendant’s statements were not revealed to the jury, and Appellant has failed to cite an unequivocal rule of law which was violated when the prosecutor asked the hypothetical question.

Finally, Appellant claims that the prosecutor made comments during voir dire and during trial which constitute plain error. Other than statements previously discussed, Appellant has failed to provide record citations for additional comments which serve as the basis for this argument. Since the record is not “clear as to the incident which is alleged as error,” there cannot be plain error. Bradley, 635 P.2d at 1164.

Affirmed.

URBIGKIT, C.J., files a dissenting opinion.

1 . Appellant was also convicted of escaping by violence in violation of Wyo.Stat. § 6-5-207 (1988), but he has not appealed from that conviction.

2 . Section 6-3-301 provides:

(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein.

(b) Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

(c) Aggravated burglary is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years, a fine of not more than fifty thousand dollars ($50,000.00), or both, if, in the course of committing the crime of burglary, the person:

(i) Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;

(ii) Knowingly or recklessly inflicts bodily injury on anyone; or

(iii) Attempts to inflict bodily injury on anyone.

(d)As used in this section "in the course of committing the crime” includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred.