Prime v. State , 1989 Wyo. LEXIS 7 ( 1989 )

THOMAS, Justice.

In the context of its peculiar facts, leading to a conviction of aggravated robbery in violation of § 6-2-401(c)(ii), W.S.1977 (June 1983 Repl.),¹ this case presents questions previously addressed by this court. Error is asserted by Rick Prime because the other participant in the robbery was brought before the jury and, at that time, asserted his constitutional privilege not to testify by refusing to take the oath of a witness. Additional errors are asserted attributable to the failure to provide counsel in connection with voice exemplars and a photographic array by means of which identifications were made by some witnesses; the use of testimony from witnesses who arguably had been hypnotized for the purpose of attempting to enhance their recollections; and the failure to give certain proffered defense instructions. We conclude that these claims of error are controlled by prior cases decided by this court, and either no error was committed or, in the context of all the circumstances, any error was not prejudicial. The judgment and sentence entered in the district court is affirmed.

The appellant, Rick Prime (Prime), states the following issues in his brief:

“I. Whether it was error for the trial court, to allow the prosecution to call Darwin Haselhuhn as a witness knowing that he would exercise his Fifth Amendment right to refuse to testify.

“II. Whether it was error to allow evidence of unduly prejudicial voice and photographic identifications to go to the jury.

“III. Whether hypnotically enhanced testimony should be allowed in a criminal trial.

“IV. Whether the court erred in refusing two jury instructions and in refusing to allow trial counsel to present argument on those instructions.”

The State of Wyoming restates the same issues in this way:'

“I. Was there error in witness Hasel-huhn’s exercise of his Fifth Amendment right to refuse to testify?

“II. Was there error in the procedures for voice and photographic identification? “HI. Is hypnotically enhanced testimony permissible in a criminal trial?

“IV. Did the trial court err in refusing appellant’s proffered jury instructions?”

On the night of April 21,1984, the assistant manager and a clerk at the Safeway Store in Green River, Wyoming were the victims of an armed robbery. The store was closed and locked at approximately 10:00 P.M. that night, and the rest of the store employees had departed. The assistant manager and the clerk were counting the money from the several checkout counter tills when the assistant manager noticed two men approaching down one of the aisles. The men were wearing masks and were armed, one with a sawed-off shotgun and the other with a large knife. The first was attired in a dark coat or jacket and a ski-type mask, the other wore a green coat or jacket with a Halloween style mask that had long black hair and a face described as orange/yellow. These two men, after threatening the assistant manager and the clerk, entered a booth that served as an office and proceeded to empty the tills into a white bag. The man with the shotgun forced the assistant manager to open the bottom safe by prodding him with the shotgun.

The robbers made the assistant manager and the clerk accompany them into a back storeroom where they then tied their hands and feet and covered their eyes with duct tape. The robber wearing the Halloween mask removed it at this juncture, and the assistant manager, by tilting his head backward, was able to peer beneath the tape and see this individual. At trial, the assistant manager testified that he observed a man with long blondish-brown hair wearing a white tee shirt and gold-rim glasses.

The robbers then left the store and, after freeing himself, the assistant manager promptly reported the robbery to the police. Both the assistant manager and the clerk furnished statements to investigating officers that same evening at the scene of the crime. The assistant manager advised the officers that he recognized the man whom he had seen as a member of the crew who cleaned the floors in the store. He did not know the man’s name but, when shown a photographic array including a picture of Darwin Haselhuhn, he identified him as the man he had seen. Later, when he saw Haselhuhn in person at the preliminary examination, he positively identified him as the robber. Haselhuhn was convicted of this armed robbery, and that conviction was affirmed by this court in Haselhuhn v. State, 727 P.2d 280 (Wyo.1986), cert. denied 479 U.S. 1098, 107 S.Ct. 1321, 94 L.Ed.2d 174 (1987).

The assistant manager and the clerk both explained to the investigating officers that only one of the robbers spoke during the course of the robbery. The investigating officers then obtained a tape with several voice exemplars, the last of which was Prime’s voice. The voice exemplars were then played to these witnesses, and the assistant manager identified Prime’s voice as the voice of the other robber. The store clerk selected the third exemplar and the Prime exemplar as being similar to the voice that she had heard at the robbery.

During the course of the investigation, the police officers arranged hypnotic sessions for the assistant manager and the store clerk. At trial, the assistant manager testified that he did not think he ever had been under hypnosis, and he said that his identification was not assisted by anything that occurred during the hypnotic session. The clerk, who had testified at Haselhuhn’s trial, did not testify in Prime’s case, but a statement that she had made to the police officers was received into evidence. Prime called an expert witness in his defense who explained the difficulties and problems with hypnosis and the possible results in terms of effect upon the recollection of a witness.

The evidence against Prime, in addition to that of the two victims of the robbery, encompassed in-court identification of Ha-selhuhn by the assistant manager and other witnesses; Prime’s association with Ha-selhuhn; his claim that he had spent the entire evening of April 21,1984 with Hasel-huhn; and incriminating allusions to the robbery which Prime and Haselhuhn had made to other witnesses who testified. In addition, Prime was identified as having entered the Safeway Store between 9:30 and 10:00 P.M. on the night of the robbery. That witness, and others, had seen Hasel-huhn enter the store also, but no one had seen either of them leave.

During the course of the trial, the record reflects that when Darwin Haselhuhn was presented in the courtroom, the following occurred:

“[COUNTY ATTORNEY]: State calls Darwin Haselhuhn as an adverse witness.

“THE COURT: Have you been sworn? “MR. HASELHUHN: No, I haven’t, Your Honor. I decline to be sworn in and I decline to answer any questions. “THE COURT: You’ll be sworn in, mister. Now raise your right hand.

“MR. HASELHUHN: (No response). “THE COURT: Raise your right hand. “MR. HASELHUHN: I decline to be sworn in, Your Honor.

“THE COURT: All right. I find you in direct contempt of Court. I remand you to the custody of the Sheriff to be held there until you answer and/or sworn or sentenced otherwise; is that clear? “MR. HASELHUHN: That’s clear, Your Honor.

“THE COURT: All right. Take him out.”

Following this colloquy, a motion for a mistrial was made on behalf of Prime claiming that the circumstances were prejudicial. That motion was denied, and the court then gave the following advice to the jury:

“THE COURT: Ladies and gentlemen, the fact that I found Mr. Haselhuhn in contempt of Court and remanded him to the custody of the Sheriff, has no bearing on the innocenee or guilt of Mr. Prime. You will not consider it. You may continue.”

The appearance in the courtroom had been preceded by a conference in chambers in which the court granted immunity to Ha-selhuhn from the use of his testimony against him, and Haselhuhn affirmed his position that he would not testify because of possible prejudice relating to federal charges and other charges against him. At that conference, Prime’s counsel also complained about the loss of any opportunity to cross-examine.

We address, first, the claim of error arising out of the circumstances in which Haselhuhn was presented before the jury and exercised his right not to testify by refusing to be sworn as a witness. In substance, the inverse of this situation occurred at Haselhuhn’s trial when Prime, upon being presented for the administration of the oath, advised the court in front of the jury that he would refuse to testify. The court there addressed the claim that Haselhuhn had been deprived of his right of confrontation because he was not permitted to cross-examine Prime with respect to conduct which was perceived by Hasel-huhn as being equivalent to testimony. We there explained that there was no violation of the right of confrontation under those circumstances.

In that case, like this case, Haselhuhn moved for a mistrial, but he did not request that a cautionary instruction be given to the jury. In this case, Prime moved for a mistrial, but he made no complaint with respect to the advice which the district court gave the jury. We reiterate our statement in Haselhuhn, 727 P.2d at 286, that “such incidents should be avoided in the trial of a case,” and we remind counsel and the trial bench that the record can be made outside of the presence of the jury which avoids any claim of prejudice. In this instance, like Haselhuhn, 727 P.2d at 280, we conclude that what occurred is not a ground for reversal because, in the context of the trial, this event did not prejudice Prime. The trial court did give a cautionary instruction which, in effect, advised the jury that it should not consider the appearance of Haselhuhn as relating to the guilt or innocence of Prime. Furthermore, Ha-selhuhn had been presented in court several times prior to this event and identified by various witnesses. The jury had no way of knowing that Haselhuhn already had been found guilty of the crime, and what occurred was what would be expected of an individual who had been identified by witnesses at the trial as the other robber. In somewhat similar circumstances, federal appellate courts have concluded that prejudice was avoided by cautionary instructions to the jury. Labbe v. Berman, 621 F.2d 26 (1st Cir.1980); United States v. Watson, 591 F.2d 1058 (5th Cir.1979), cert. denied 441 U.S. 965, 99 S.Ct. 2414, 60 L.Ed.2d 1070 (1979). We conclude that no error occurred with respect to Haselhuhn's presentation as a witness.

Prime argues in his next claim of error that he was entitled to the assistance of counsel in connection with the photographic array and the voice exemplars which were utilized to assist in the identification of the perpetrators of the robbery. Prime invites the court to extend the right to counsel to preindictment stages which would include the preparation of the photographic array and the voice exemplars. Counsel is not required, in such instances, by the United States Constitution, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), because that right attaches only upon the commencement of adversary judicial proceedings. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932). This same rule has been espoused by this court and applied to claims arising under the Wyoming Constitution. Charpentier v. State, 736 P.2d 724 (Wyo.1987); State v. Heiner, 683 P.2d 629 (Wyo.1984); Brown v. State, 661 P.2d 1024 (Wyo.1983); Auclair v. State, 660 P.2d 1156 (Wyo.1983). We are not persuaded to overrule these authorities, and we find no error with respect to the claim of right to counsel in connection with the pre-indictment identification proceedings.

Prime argues, in addition, that these identification procedures did not meet the requirements of due process articulated in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed.2d 183, 25 A.L.R.2d 1396 (1952). We conclude that there was no abuse of discretion by the trial court in permitting the introduction of the photographic array. The photographic array was substantially similar to the one which was utilized in McDaniel v. State, 632 P.2d 534 (Wyo.1981), as to which we concluded:

« * * * |ijrj0 reasonaj)]e person it is just a photograph presented to support the testimony. Admission of evidence is within the sound discretion of the trial court, and absent a clear abuse of discretion will not be disturbed.” McDaniel, 632 P.2d at 536.

We have examined the record to determine if the totality of the circumstances was suggestive, and we conclude that it was not. Both the assistant manager and the clerk fulfilled the criteria articulated in Reinholt v. State, 601 P.2d 1311 (Wyo. 1979), as adopted in Alberts v. State, 642 P.2d 447 (Wyo.1982), and also Sears v. State, 632 P.2d 946 (Wyo.1981). Both witnesses had ample opportunity to view and listen to the robbers. Their attention definitely was focused upon these individuals. They gave accurate descriptions of the robbers prior to the presentation of the photographic array. They both were father certain of the identification at the time of personal confrontation, and the time between the personal confrontation and the crime was not unduly enlarged. With respect to the voice exemplars, only one of the robbers spoke during the robbery, and the witnesses were both clear on their identification of that exemplar. We hold that no error occurred in the admission of the photographic array or the voice exemplars at trial. Prime’s claim of error with respect to the testimony of witnesses who had been hypnotized is substantially the same as that presented by Haselhuhn in his appeal. The only difference is that Prime had ample opportunity to be aware of the hypnotic session and, in fact, did produce expert testimony addressed to the vagaries and problems of hypnosis. The major development in the law since the case of Haselhuhn v. State, supra, was decided is the decision of the Supreme Court of the United States in Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), which refused to approve a per se rule prohibiting testimony by a defendant who had been hypnotized. The Supreme Court held that such a rule infringed upon the Sixth Amendment right of an accused to make his defense by presenting his version of the events in his own words. In the course of its opinion, the Supreme Court reviewed the status of state law generally with respect to witnesses who have been hypnotized, and the decision seems compatible with the position which has been espoused by this court in prior cases. Consequently, we adhere to the rule adopted in Haselhuhn, 727 P.2d at 280; Pote v. State, 695 P.2d 617 (Wyo.1985); Gee v. State, 662 P.2d 103 (Wyo.1983); and Chapman v. State, 638 P.2d 1280 (Wyo.1982). A witness who has been hypnotized is not incompetent and may testify. The circumstances surrounding the hypnosis can be presented to the jury, and the question is one of credibility.

Lastly, Prime complains of the failure to give two instructions which he contends set forth his theory of the case. Those requested instructions read:

“DEFENDANT’S PROPOSED INSTRUCTION # B

“A witness who has been hypnotized does not automatically become incompetent as a witness because of the hypnosis. His testimony, if believed by the jury, may be sufficiently convincing to persuade the decision; even though not corroborated or supported by other evidence.

“However, the jury should keep in mind that such testimony is always to be received with caution and weighed with great care. You should subject such testimony to careful examination in the light of all the other evidence in the case. You ought not to convict upon such testimony alone, unless after a careful examination of such testimony, you are satisfied beyond a reasonable doubt of its reliability.

“Careful consideration must be given to the manner of the hypnosis in order to ascertain the testimony's reliability. You must assure yourselves that hypnotically enhanced testimony does not reflect suggested pseudo memories or fantasies that are accepted as real by the witness and hypnotist alike.”

“DEFENDANT’S PROPOSED INSTRUCTION #H

“One of the most important issues in this case is the identification of the Defendant as the perpetrator of the crime. The State has the burden of proving identity, beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the Defendant before you convict him. If you are not convinced beyond a reasonable doubt that the Defendant was the person who committed the crime, you must find the Defendant not guilty. “Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.”

The court adequately advised the jury with respect to its prerogatives as to credibility and the burden of proof in other instructions. The proposed instructions by Prime are a skillful effort to induce the trial court to argue the case for the defense through its instructions.

Our rule is that a court may refuse a requested instruction if it has been covered by other instructions, Benson v. State, 571 P.2d 595 (Wyo.1977). The court also properly may refuse instructions which are argumentative or unduly emphasize one aspect of the case. Evans v. State, 655 P.2d 1214 (Wyo.1982). We hold that these criteria were satisfied in this instance.

So far as Prime’s argument is concerned that these instructions set forth his theory of the case, we do not accept that invitation. Not every matter of trial strategy or tactics constitutes the theory of the defendant’s cáse. We recognize that Prime’s theory was that the testimony of the hypnotized witnesses was suspect and was not entitled to any moment in the deliberations of the jury. Nevertheless, that is simply Prime’s theory with respect to this aspect of the evidence; we do not perceive that it was his theory of the case. His theory of the case was that someone else, not Prime, committed this robbery. We eschew a rule that every instruction offered by a defendant must be given if he characterizes it as incorporating his theory of the case.

We hold that there was no prejudicial error with respect to any of the matters complained of by Prime. The judgment and sentence of the district court is affirmed.

URBIGKIT, J., files a dissenting opinion.

1 . Section 6-2-401, W.S.1977 (June 1983 Repl.), provides, in pertinent part:

"(a) A person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 he:

"(i) Inflicts bodily injury upon another; or "(ii) Threatens another with or intentionally puts him in fear of immediate bodily injury. ******

"(c) Aggravated robbery is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of robbery the person:

"(i) Intentionally inflicts or attempts to inflict serious bodily injury; or "(ii) Uses or exhibits a deadly weapon or a simulated deadly weapon.”

Section 6-3-402, W.S.1977 (June 1983 Repl.), provides, in pertinent part:

"(a) A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny."