Fitzgerald v. State ( 1979 )

ROSE, Justice.

Appellant, William John Fitzgerald, appeals his second-degree murder conviction on three grounds: (1) Inculpatory statements made to the police (in which appellant admitted attacking the victim) were the fruit of an illegal arrest; (2) the appellant was denied a fair trial when the prosecutor made indirect use of a knife which the trial judge ordered suppressed on Fourth Amendment grounds; and (3) the State unfairly surprised the defense with a major prosecution witness. We will affirm.

We will discuss the two Fourth Amendment issues first. The victim’s body was found by hunters on the morning of September 22, 1977, in the Lake DeSmet region north of Buffalo, Wyoming. The victim had been cut on the legs, chest and throat. In the course of their investigation, police learned that the victim had last been seen leaving the 21 Club in Buffalo with two young men who were not residents of Buffalo. Composite drawings were made from which police were able to identify the appellant. On September 27, police approached appellant in a restaurant. The State concedes that the police suspicions at that time did not rise to the level of probable cause.

The police asked Fitzgerald if he would talk with them at the Buffalo police station, whereupon he agreed to do this and proceeded with the police to their cars. At the police car, the police asked for permission to search him before allowing him to enter. Appellant volunteered that he had a pocket knife in his pants pocket, whereupon the police confiscated the knife. The group then proceeded to the Buffalo police station. Fitzgerald was there given adequate Miranda warnings, after which he made incriminating statements which the police videotaped. In essence, Fitzgerald told the police that the victim had invited him for a car ride; that they then stopped and appellant began to urinate; that the victim grabbed Fitzgerald’s penis, taking Fitzgerald by surprise; and that Fitzgerald, in panic, beat on the victim and then returned to town alone.

Before trial, Fitzgerald’s attorney moved to suppress both the knife and the videotaped statements. The trial judge granted the motion to suppress the knife. In his written motion to suppress the statements, and in his oral arguments, Fitzgerald’s counsel offered at least three grounds for suppressing the statements: (1) The statements were given involuntarily; (2) the statements were the result of an illegal search; and (3) the statements were the result of an illegal arrest. The trial judge denied the motion to suppress the statements; and, on appeal, Fitzgerald asserts only that the statements were the fruit of an illegal arrest.

Fitzgerald briefed his appeal before publication of the United States Supreme Court decision in Dunaway v. New York,-U.S. -, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in which it was held that a person may not be detained for custodial interrogation without probable cause. However, despite the reservation of that question by the United States Supreme Court in Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969), we are of the opinion that the Dunaway holding was completely foreshadowed by Wyoming law. In Rodarte v. City of Riverton, Wyo., 552 P.2d 1245 (1976), we adopted a definition of arrest which unambiguously includes the situation in which a person is involuntarily taken into custody for questioning. Under both Rodarte (as supplemented by general Fourth Amendment case law, e. g., Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)) and Dunaway, the law is clear: If Fitzgerald was taken involuntarily to the Buffalo police station then he had a right, under the facts of this case, to have the statements suppressed despite adequate Miranda warnings. The issue which we must consider in this appeal is whether the record supports a finding that Fitzgerald went voluntarily to the police station because, in order for the court to have refused to suppress the questioned evidence, it must be presumed that it found that, according to the facts of record, the defendant left the restaurant with the police of his own free will.

In considering the record, several observations are in order: (1) Fitzgerald chose not to testify at the suppression hearing; accordingly, the only evidence we have of the transaction is police testimony. (2) The issue of whether or not Fitzgerald went voluntarily to the police station may be resolved by a preponderance-of-the-evidence standard. Lego v. Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 625, 30 L.Ed.2d 618 (1972). See, also, Lonquest v. State, Wyo., 495 P.2d 575 (1972). (3) Under our rules of appellate procedure, we view the evidence most favorably to the party who prevailed below. As we said in Repkie v. State, Wyo., 583 P.2d 1272, 1273-1274 (1978):

“An appellate court, in assessing evidence as to its sufficiency, is bound by the following rule:

“ ‘In passing upon the sufficiency of the evidence to support a verdict of guilty, an appellate court will not weigh conflicting evidence nor consider the credibility of witnesses; and it must view the evidence in a light most favorable to the prosecution and determine questions of law as to whether there is substantial evidence, direct or circumstantial, or both, which, with the reasonable inferences that may be drawn therefrom, will sustain the verdict.’ Harris v. State, Wyo., 487 P.2d 800, 801, citing United States v. Weiss, 10 Cir., 431 F.2d 1402, 1407; and Stock v. Roebling, Wyo., 459 P.2d 780, 784.”

The police testimony is that four police officers approached Fitzgerald in the dining area of the restaurant and explained that they were investigating a local homicide and wished to asked Fitzgerald and his companion a few questions. Fitzgerald said that he had ordered dinner and asked if it would be all right if they ate dinner first. One of the officers replied that he [the policeman] preferred that he [Fitzgerald] come with him down to the police station and that the police would buy his dinner for him later if he wished. The police would not have forced Fitzgerald to accompany them had he refused.¹ Both Fitzgerald and his companion were very cooperative and agreed to accompany the police to the police station. In response to Fitzgerald’s questions, he was told that he was not under arrest.²

The trial court could reasonably conclude from the above testimony and surrounding evidentiary circumstances that the defendant left the restaurant voluntarily. When Fitzgerald was approached by the police, he learned that he was under some suspicion. It is, for this court, and we believe was for the trial court, reasonable to infer that a paramount concern of Fitzgerald at that time was to persuade the police of his innocence. True, Fitzgerald could have asserted his rights and told the police not to bother him unless they were prepared to legally arrest him, and such insistence upon his rights could not have been used in evidence against him at trial. E. g., Irvin v. State, Wyo., 560 P.2d 372, 372-373 (1977). In hindsight, this might well have been the better legal strategy. It is even possible to speculate that Fitzgerald may not have known that he had a choice. These possibilities notwithstanding, it is also reasonable to assume that Fitzgerald was aware of his choice and deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.

We find no reason in the record to disturb the trial judge’s ruling on the motion to suppress the statements. In other words, we find that the record on the issue of whether or not Fitzgerald left the restaurant voluntarily supports the trial court’s suppression ruling, which had the effect of holding that he did go voluntarily. Nor do we read the majority opinion in Dunaway, supra, to hold that under the facts of this case a finding of involuntariness is required as a matter of law.

We find support for our conclusion here in a recent post-Dunaway decision of the Supreme Court of Tennessee, Childs v. State, Tenn., 584 S.W.2d 783 (1979).

In Childs, the police were investigating a homicide and telephoned the defendant and requested that he visit the police station for questioning. Childs did so but found when he arrived that the investigating officers were not there. Subsequently, the police approached Childs at one of his friend’s apartment and asked him to talk to them in their car. Childs agreed. In talking to the police, Childs admitted using a different name. The evidence was that he willingly accompanied officers to his apartment where he produced a driver’s license issued in that name. The record goes on to show that Childs then agreed to and did accompany the police to the station house. When the police confronted Childs at the residence of his friend, Childs was merely a potential homicide suspect. Probable cause to arrest Childs did not develop until he was in the station house, at which time he was formally arrested. Childs, like Fitzgerald, did not testify as to the voluntariness of his trip to the police station. In Childs the involved police officers testified that the defendant had talked with them voluntarily prior to his arrest and had gone voluntarily with them to the police station. The Tennessee Supreme Court said:

“. . . [Tjhese are factual issues to be determined from all the circumstances. In the absence of any countervailing evidence whatever, and in view of the fact that both the trial and intermediate appellate courts have accredited the testimony of the police officers, we are unable to sustain the contention of petitioner that his initial questioning, either at the apartment or at the police station, amounted to anything more than general inquiry or investigation or that it constituted an unlawful arrest or illegal detention.” 584 S.W.2d at 787.

Appellant’s second Fourth Amendment claim is that the prosecutor made indirect use of the knife in his case, despite the fact that the trial judge had ordered the knife suppressed as the result of an illegal search.

During the video-taped interrogation shown at trial, one of the policemen asked the defendant if the knife — which was later suppressed — belonged to the defendant. The defendant replied that it was the knife taken from him. At trial, the description of the victim’s body — given by a policeman and a pathologist, and as revealed by photographs — indicated that the victim had sustained knife wounds. We attach no significance to the description of the condition of the victim’s body per se. The body was discovered by hunters who informed the police. There is no claim that knowledge of the body wounds was obtained by the police in a manner which violated Fitzgerald’s rights.

Before trial, the judge met with the two attorneys in chambers to discuss the matter of the references to the knife in the two video-taped interrogations. (Two videotaped interrogations had been made, although only the first was ultimately introduced at trial.) The prosecutor agreed to cut from the second video-taped interrogation all mention of the knife.

The defense attorney declined a similar offer with respect to the first video-taped interrogation which was introduced. He also declined to have a transcript of the interrogation read, from which would be omitted all reference to the knife. The following conversation was had in chambers among the judge, defense attorney Kirven and prosecutor Goddard:

“MR. KIRVEN: I would rather have the first tape in its entirety as opposed to any editing or that sort of thing or having a transcript of it read. I hope I’m not waiving anything — as between the tape and the prosecutor reading the transcript, I’ll go for the tape, and I’m speaking of the first tape.

“THE COURT: Okay, I’ll let the first tape in, assuming that a proper foundation is laid for it.

“MR. GODDARD: I don’t want to be in a position — I’m willing to erase those portions that have reference to the knife or go with the transcript, so I don’t want it to sound like I’m trying to—

“MR. KIRVEN: Well, the fact of the matter is, as far as that transcript goes, the portion that you want to take out of there, if anything is beneficial, they say, ‘Did you cut him with your knife,’ an obvious reference to the knife, and his answer is, ‘No.’ That’s what they want to cut out.

“MR. GODDARD: Well, I wanted to cut out the references to the knife, but that’s fine—

“MR. KIRVEN: I am in no way waiving any additional comment—

“MR. GODDARD: I understand; that’s fine.

“THE COURT: Now, as to the second tape, . . . .”

In his brief, appellant claims that at trial an objection was made to the playing of the videotape in its entirety on the grounds that the tape was prejudicial to the defendant. The objection cited to us by appellant was:

“MR. KIRVEN: Your Honor, I would just like to note my objection previously stated to the Court.”

Two pages earlier in the transcript, appellant’s counsel had made the following objection:

“MR. KIRVEN: We would object, your Honor, to its admission on the grounds previously stated to the Court regarding the voluntaryness [sic] of it and the violation of the defendant’s constitutional rights.”

The court overruled both objections.

The record clearly shows that defense counsel, for tactical reasons, declined an opportunity to have reference to the knife deleted from the video-taped statement and that when the video-taped statement was introduced at trial, the defense counsel objected to its admission on other grounds. The law is clear that the right to challenge the admissibility of physical evidence — actually in this case we are dealing with the admissibility of a reference to the physical evidence — may be waived as a tactical choice. E. g., People v. Esajerre, 35 N.Y.2d 463, 363 N.Y.S.2d 931, 323 N.E.2d 175 (1974).

Appellant also presses a Sixth Amendment argument on appeal. In the State’s case in chief, the defense was “surprised” by the testimony of a former roommate of appellant, Roscoe Lansdown, who testified to four homosexual encounters with appellant, initiated and apparently enjoyed by the latter. Appellant had based his defense on a theory of homosexual panic, which was undermined by Lansdown’s testimony. Appellant asserts that the Lansdown testimony was a surprise in violation of an understanding between the two attorneys made before the court at a pretrial discovery hearing. Appellant claims that this unfair surprise deprived him of the right to effectively cross-examine Lansdown.

Before examining in detail the claim of a violated understanding, it is useful to clarify several items:

1. Appellant does not argue on appeal that Lansdown’s testimony, introduced during the State’s case-in-chief, is substantively offensive under our rules of evidence. (Appellant’s trial counsel did not timely object during trial and unsuccessfully raised the issue of plain error in this regard to the trial judge in a post-verdict motion. Appellant’s appellate counsel has apparently abandoned the issue.)

2. As will be explained later, we conclude that the defense was advised that Lansdown was a potential witness. Thus, we see the issue as being whether or not the prosecutor had a duty to advise the defense of the nature of Lansdown’s testimony — not as whether the prosecutor had a duty to advise the defense that Lansdown would testify.

3. Appellant does not claim on appeal that the Lansdown testimony was exculpatory to the defendant and thus discoverable under Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or Jones v. State, Wyo., 568 P.2d 837 (1977). Nor does appellant claim that under the Wyoming Rules of Criminal Procedure he was entitled to be advised of Lansdown’s testimony prior to trial. In fact, statements by prosecution witnesses are discoverable only after the witness has testified at trial. Rule 18(c)(1), W.R.Cr.P.

4. Appellant argues that United States v. Wade, 388 U.S. 218, 227, 229-232, 235, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), supports the proposition that uninformed cross-examination is worse than a denial of cross-examination. Indeed, two members of this court in a recent dissent made a somewhat similar observation. Hayes v. State, Wyo., 599 P.2d 558 (1979). However, neither constitutional considerations nor the Wyoming Rules of Criminal Procedure require that the prosecution inform the defense in advance of trial of all of the testimony that the prosecution will present. As the United States Supreme Court has said:

“ . . . There is no general constitutional right to discovery in a criminal case, and Brady [Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] did not create one; Brady is not implicated here where the only claim is that the State should have revealed that a government informer would present the eyewitness testimony of a particular agent against the defendant at trial.” Weatherford v. Bursey, 429 U.S. 545, 559-560, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977).

We conclude that the Sixth Amendment right to cross-examination is not violated merely because a counsel is surprised by the testimony of an adverse witness. Weatherford, supra. In Hayes, supra, the dissent was concerned that the surprise was the result of the defense counsel unwittingly being misled by a court limine order.

With this in mind, let us now examine the pretrial hearing held by the court on the defense’s discovery motions.

At the hearing, the two counsel and the judge discussed a defense request for statements from prosecution witnesses. The prosecutor resisted that discovery, stating that he was not withholding any exculpatory material. Both the defense counsel and the judge raised the possibility that material not deemed to be exculpatory by the prosecutor could turn out to be, in fact, exculpatory and thus provide the basis for a mistrial or reversal of the trial court’s judgment. At this point the prosecutor responded:

“Well, your Honor, I think at some point — I have tried to be fair about it. I will provide him with a list of all witnesses we intend to call, I have advised him that he can look at any evidence involved in the case, I have advised him that to my knowledge, there is no exonerating material. I’m not sure that the State is required to go beyond what the rules provide.”

At this point, the judge asked the prosecutor if he had an open-file policy, to which the prosecutor responded that he did not in all respects have an open-file policy. The judge indicated disapproval. The judge then said he would deny the defense motion for further discovery, with the understanding that if the prosecutor had withheld any exculpatory material a new trial would be granted. The above occurred on October 25, 1977.

After the testimony of Lansdown, the defense counsel moved the trial court for a mistrial on the grounds of unfair surprise. In argument on the motion, the defense attorney makes the claim that he was provided with a list of prosecution witnesses on March 13, which list did not include the name of Lansdown. The prosecutor emphatically denied this and stated that the March 13 list of possible witnesses which he provided the defense did contain the name of Lansdown. The prosecutor further stated that he was not able to contact Lans-down until the 20th of March and did not know until that time what Lansdown’s testimony would be. In response to comments by the trial judge and the defense counsel, the prosecutor stated that he was not legally obligated to inform the defense of his new discovery.

Appellant has not produced the March 13 list or in any other way substantiated the claim that the prosecutor excluded Lans-down from the list of witnesses he gave the defense on March 13. The trial judge was confronted by two attorneys giving opposite versions of an agreement between them. In denying the motion for a mistrial, we must assume that he decided the factual issue in favor of the prosecutor. On appeal, we will assume the facts favorable to the party who has prevailed below and not consider conflicting evidence, Repkie, supra.

Thus, there remains only the issue of whether the prosecutor was obligated to go beyond the statutory and constitutional requirements and reveal to the defense in advance of trial the substance of Lans-down’s testimony. Appellant points to no court order requiring disclosure of the testimony of the prosecution witnesses.

Appellant does, however, rely on the quote of the prosecutor reproduced above. Viewed in the context portrayed above, we do not interpret the prosecutor’s statement as a binding promise to inform the defense of all future developments in the prosecutor’s preparation of the case. If the defense counsel was surprised by the testimony of Lansdown, we cannot say on the record before us that the surprise was due to unfair activity on the part of the prosecutor or that the defendant did not receive a fair trial.

Affirmed.

1 . We do not consider that what the police would have done had Fitzgerald refused to accompany them has a great deal of probative value on the issue of whether or not Fitzgerald voluntarily agreed to go. As we analyze the evidence to determine whether it is sufficient to support the court’s judgment of voluntariness, it is Fitzgerald’s head that we must look into— not the heads of the policemen. We make the observation because in Dunaway, the United States Supreme Court considered it worth mentioning that the police had decided to “pick up” Dunaway (99 S.Ct. at 2251) and that Dunaway was not free to do anything but accompany the police (99 S.Ct. at 2256).

2 . Of course, the courts and not the police must define when an arrest occurs.