Mayer v. State , 1980 Wyo. LEXIS 312 ( 1980 )

ROONEY, Justice.

After a jury trial, appellant-defendant was convicted of first-degree murder. He appeals from the judgment and life sentence resulting therefrom, contending that: (1) statements made by defendant were improperly admitted into evidence, (2) a post-death photograph of the victim was improperly admitted into evidence, and (3) the trial court improperly refused to instruct the jury to disregard a remark made by the prosecutor in the rebuttal portion of the closing arguments.

We affirm.

ADMISSION OF STATEMENTS INTO EVIDENCE

At about 3:00 a. m. on March 25, 1979, appellant was interviewed at the Natrona County Sheriff’s Office. He related the incidents of that night as they pertained to the death of Wesley Stone, the homicide victim, and he signed a written statement concerning the same. Additionally, the interview was recorded on tape; and, after it was transcribed the next morning, appellant made corrections on it and signed it. Appellant was advised of his constitutional rights as required by Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but he contends that his statement was not given “voluntarily, knowingly, and intelligently” because he “was seventeen years of age, intoxicated, was suffering from physical injuries incurred from a severe beating, was emotionally overwrought and had been deprived of the counsel of his mother.”

In the statements, appellant related that he had been on a double date during the evening hours of March 24,1979. At about 12:15 a. m. on March 25, 1979, he drove to the Safeway parking lot on CY Avenue in Casper where his date had parked her automobile. Milton Brummett then opened appellant’s car door and began to attack him. The two fought, and appellant was beaten. He then went to the Hall of Justice to make a complaint. He was given a form to fill out and bring back the following Monday. Feeling that his complaint was not properly received by the police, he drove to his home and obtained his 12-gauge shotgun and a box of shells. When he returned to his automobile with the gun and shells, his mother followed him and got in the automobile with him. Another automobile came along side of his automobile and stopped. Appellant thought that Brummett was driving it. He loaded the gun and shot and killed Stone, the driver of the automobile.

The test of admissibility of a confession is whether or not under the totality of the circumstances the waiver of constitutional rights and subsequent statements were given voluntarily, knowingly and intelligently. Jarrett v. State, Wyo., 500 P.2d 1027 (1972). The trial court here conducted a hearing on appellant’s motion to suppress the statements to determine their admissibility. Thereafter, the court ruled that the statements were admissible inasmuch as they were made “* * * voluntarily, after thorough advice of constitutional rights, and that the defendant knowingly, intelligently, and voluntarily waived his rights * * Thus, the trial court ruled that the prosecution had carried its burden of proving the same by a preponderance of the evidence. Raigosa v. State, Wyo., 562 P.2d 1009 (1977); Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

A review of the record supports the ruling of the trial court. The interviewing officers testified that at the time of arrest, before and during the questioning, appellant was coherent, cooperative, able to understand, and willing to answer all questions. He did not appear to them to be intoxicated. The Miranda warnings were given to him by the officer who transported him to the Hall of Justice, and again by the officer taking the statement before doing so. Appellant expressed understanding each time. Prior to questioning, he was asked if he wanted his mother present and he answered “no.” (Appellant’s mother had been brought to the Hall of Justice by a deputy sheriff immediately after appellant was taken into custody.) The evidence does not reflect that the injuries to appellant were so severe as to deprive him of his capacity to comprehend and appreciate the nature and consequences of the statements. Kennedy v. State, Wyo., 422 P.2d 88 (1967); Lonquest v. State, Wyo., 495 P.2d 575 (1972). The same can be said of his degree of intoxication-.09% on the blood alcohol test administered about one hour and fifteen minutes after the interview began. Appellant had a scrape on his chest, a split lip and a lump by his right eye “approximately a quarter or half-inch high, about the size of a 50 cent piece” and a black eye. He was very angry. As he said in his statement, “I got madder and madder and I grabbed my shotgun and a box of shells.” The excessive speed used by him in driving to the Hall of Justice for the purpose of making a complaint, his impatience at having to fill out a complaint form and at having to return on Monday to sign it before a police magistrate, the act of mistaking Wesley Stone for Brummett and shooting Stone as a result of the mistake reflect his anger. His occasional sobs while being booked and during the interview and the very words of the statement, i. e., “Right after I shot, Man I rolled the window up and just freaked ... because I realized what I had done” (punctuation not supplied), reflect the emotion of remorse. These emotions, in themselves, however, do not reflect the inability to comprehend or appreciate the nature and consequences of his actions.

Appellant also recognized the pertinency of the testimony of Stone’s companion and its potential as adverse to appellant. Immediately after the homicide, appellant offered him “a thousand dollars to testify for him.” After the taped statement was transcribed, appellant took 45 minutes to review it for accuracy.¹ He made nine changes in it. One of the changes was to correct the information originally given to the effect that he had consumed two “very light screw drivers” during the evening. In making the correction he wrote, “I had a lot more to drink than I advised Mr. Benton.” Mr. Benton was the officer who conducted the interview. Appellant’s companion did not consider appellant as “drunk.”

Appellant acknowledges that “any one of the factors of youth, deprivation of parent counsel, emotional turmoil, intoxication, and pain as a result of physical injury, standing alone would not per se render the statements involuntary.” In this he was correct. Mullin v. State, Wyo., 505 P.2d 305 (1973); People v. Hocking, 15 N.Y.2d 973, 259 N.Y.S.2d 859 (1965); People v. Taylor, 16 N.Y.2d 1038, 265 N.Y.S.2d 913 (1965); Hernandez v. State, Wyo., 587 P.2d 1094 (1978); Lonquest v. State, supra; Morti-more v. State, 24 Wyo. 452, 161 P. 766 (1916). But, we cannot agree with appellant’s contention that the several factors taken together are sufficient in this case to mandate a reversal of the trial court’s determination that the appellant gave his waiver and the statement voluntarily, knowingly and intelligently.

There may be instances in which any one or more of the factors of age, intoxication, physical injuries, lack of parental contact, or mental trauma would be sufficient to evidence a waiver of constitutional rights or a confession as involuntary. An examination of the cases cited by appellant in support of his argument reflects the circumstances in each are far more aggravated and severe than those in this case. The trial court relied upon the factual situation as presented to it by the evidence, and it considered the totality of the circumstances surrounding the transaction. Such evidence as gauged against such standard supports the findings of the trial court. Lon-quest v. State, supra; Jarrett v. State, supra.²

ADMISSION OF PHOTOGRAPH INTO EVIDENCE

Appellant contends that a photograph of victim’s head and shoulders taken at the coroner’s office, and depicting the marks made by the shots was unduly prejudicial and without probative value. It was admitted into evidence over appellant’s objection. The objection was argued out of the presence of the jury. The court said:

“* * * Well, since the issue of self defense has been raised, at least through the opening arguments,[³]it seems to be one thing the Jury will have to assess in evaluating a self defense claim, as to whether or not the magnitude of the forces in defense was comparable to the magnitude of the threat, and it seems to me the photo does have some bearing on that question, and considering that it is the only photo of this type, which the Prosecutinon [sic] intends to introduce, I think it does have some probative value on that issue, which would outweigh its prejudicial effect. Therefore, I will overrule the objection and allow the exhibit in.”

Appellant then requested the court to instruct the jury that the photograph was admitted for a limited purpose, and that emotion, passion and sympathy are not to come into play in deliberating in this case. The court did so in the words requested by appellant.

The general law relative to admission of photographs into evidence is summarized in Reeder v. State, Wyo., 515 P.2d 969, 972 (1973) as follows:

“Generally the question of admission of photographs is left to the reasonable discretion of the trial court. Linn v. State, Wyo., 505 P.2d 1270 at 1276, and cases cited; Dickey v. State, Wyo., 444 P.2d 373 at 377.[⁴] However, in any case of which we are aware in which a photograph was deemed properly admitted it had some probative value. This principle would seem to be applicable to the admission of any exhibit, for if that which is offered has no probative value there would appear to be no reason for its admission. The term ‘probative’ as it applies to evidence means that it furnishes, establishes or contributes towards proof. Akin v. Estate of Hill, 201 Kan. 306, 440 P.2d 585 at 590. * * * Photographs are properly received into evidence to enable the jury as the trier of facts to better understand that which the photo represents. Alcala v. State, Wyo., 487 P.2d 448 at 456, reh. den. 487 P.2d 467, cert, denied 405 U.S. 997, 92 S.Ct. 1259, 31 L.Ed.2d 466, reh. den. 406 U.S. 911, 92 S.Ct. 1613, 31 L.Ed.2d 823, and Dickey, supra, 444 P.2d at 378. * * * ”

The case was defended on the theory of self defense. Considerable attention was given to evidence concerning the victim’s position at the time of the shotgun blast, i. e., whether or not he was turned toward appellant, as claimed by appellant or whether or not he was leaning forward, head slightly turned and hands on the steering wheel as recited by victim’s companion. A pathologist and a firearms expert testified relative to the pattern and distribution of the lead pellets in giving opinions as to the probable distance between the victim and the gun and as to the position of the victim at the time. The trial court determined that the photograph would serve to better understand such testimony and contribute toward the proof of the “magnitude of the forces in defense” compared to the “magnitude of the threat.” The discretion thus exercised was not abused.

“A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * ” Martinez v. State, Wyo., 611 P.2d 831, 838 (1980).

CLOSING ARGUMENT OF PROSECUTING ATTORNEY

Appellant contends that he was denied a fair trial because the prosecuting attorney said in the rebuttal portion of his closing argument:

“* * * Let’s, I submit that the defendant Randy Mayer had a license to kill anybody who could have driven by at that time that night, it could have been you, could have been me, could have been our children, could have been anybody. Think about it.”

Appellant argues that the comment is improper “in that it appeals to the jurors’ fears, is calculated to inflame the passions and prejudices of the jury, and injects issues broader than the guilt or innocence of the Defendant thus diverting the jury from its duty to decide the case on the evidence.”

Appellant objected at the time the comment was made and moved for a mistrial. After the motion was denied, appellant asked for an instruction to the jury to disregard the comment. The request was denied.

The comment standing alone and out of context could be an improper appeal to passion and to the jurors’ fears. However, appellant’s closing argument was directed to his theory of self defense. In it, he spoke of the right to use deadly force against an assailant when he had reasonable grounds to believe and actually did believe he was in imminent danger of death or serious bodily harm. He emphasized the position of Brummett in the case, detailing the evidence that Brummett had threatened appellant and that Brummett had beaten him. Appellant argued that his reaction in obtaining the gun and leaving the house “to face Brummett” was a result of the conflict with Brummett. Finally, he contended that the gun was loaded, aimed at the victim and fired by appellant in the belief that the victim was Brummett. The incidents pertaining to Brummett were emphasized as that which justified the use of deadly force against the victim. The only mention of incidents relating to the victim which could give rise to a use of deadly force in resistance was appellant’s belief that victim raised his hand and appellant thought there was a pistol in it.

In rebuttal argument, the prosecuting attorney argued that Brummett was not the one shot and that appellant had shot and killed the wrong person. He argued that the evidence reflected a disregard by appellant for human life. And then he said:

“Also there is an instruction on the issue of retreat. You heard all about the ten seconds, heard the defendant was in his car, had been around the block, direct testimony, nothing in front of him, nothing behind him, only 31 feet away from his own house even. The opportunity for retreat was more than clearly there. Do count that ten seconds out, Ladies and Gentlemen, it was ten seconds before the defendant, before he shot Wesley Stone in the head, not ten seconds before something else happened, not ten seconds before some kind of external act or external force, consider it, Ladies and Gentlemen, self-defense? Look at the evidence. This is a case of self-defense? Let’s, I submit that the defendant Randy Mayer had a license to kill anybody who could have driven by at that time that night, it could have been you, could have been me, could have been our children, could have been anybody. Think about it.”

The prosecuting attorney was speaking to appellant’s contention that appellant’s anger against, and fear of, Brummett was a defense for his shooting of victim or of any other person. In the contention and in the argument against the contention, both parties were relating the same to the evidence produced at the trial.

The scope of permissible argument by counsel to the jury is within the discretion of the trial court and will not be disturbed unless there is a clear or patent abuse of the discretion. Oldham v. State, Wyo., 534 P.2d 107 (1975); Boyd v. State, Wyo., 528 P.2d 287 (1974); State v. Spears, 76 Wyo. 82, 300 P.2d 551 (1956). In closing arguments, counsel may comment on the state of the evidence as a help to the jury in understanding it and in applying the law to it. Boyd v. State, supra; Ross v. State, 8 Wyo. 351, 57 P. 924 (1899).

The questioned comment was not repeated or given other emphasis. Six Feathers v. State, Wyo., 611 P.2d 857 (1980); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). In its instruction to the jury, the court directed the jury to disregard as evidence any statement made by counsel concerning the facts of the case.

In this instance, we do not find that the trial court acted in a manner exceeding the bounds of reason under the circumstances in not sustaining the objection to the questioned comment and in not giving an instruction to disregard it. See Martinez v. State, supra.

Affirmed.

1 . The typed statement consisted of 96 questions and answers. Most questions and answers were of a length to be typed on one line-the answers consisting of one or a few words. Several answers were of a length to be typed on three or four lines and up to twelve lines.

2 .Appellant did not testify. The facts contained in the statement concerning the fight with Brummett, the effort to make a complaint at the police department, and the shooting itself were also placed in evidence through testimony of appellant’s companion, his mother, and the victim’s companion. Appellant recited in his statement that he believed the victim to have been Brummett and that he saw him raise his right hand and “it looked like he was pointing a pistol at me, or something.” Thus, the statement was the primary means of placing the theory of self defense before the jury.

3 . Appellant had previously said, in making an objection, “It is not probative of whether Randy Mayer acted in self defense or any other reason, nobody suggested Wesley Stone hadn’t died, suggested that Randy Mayer didn’t shoot the gun, we stipulate to that fact.”

4 . Also see State v. Lindsay, 77 Wyo. 410, 317 P.2d 506 (1957); State v. Alexander, 78 Wyo. 324, 324 P.2d 831 (1958), cert. den. 363 U.S. 850, 80 S.Ct. 1630, 4 L.Ed.2d 1733 (1960).