Pearson v. State
Annotate this Case
Pearson v. State
1991 WY 131
818 P.2d 1144
Case Number: 91-13
Decided: 10/21/1991
Supreme Court of Wyoming
IASSAC ORLANDO PEARSON, APPELLANT (DEFENDANT),
v.
THE STATE OF
WYOMING,
APPELLEE (PLAINTIFF).
Appeal from the District
Court, LaramieCounty, Nicholas G.
Kalokathis, J.
Leonard D. Munker, State
Public Defender, Gerald M. Gallivan, Defender Aid Program, and Darold S.
Melchior, Student Intern for the Defender Aid Program, for
appellant.
Joseph B. Meyer, Atty.
Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty.
Gen., Theodore E. Lauer, Director of the Prosecution Assistance Program, E.
Daniel Farrar, Student Intern for the Prosecution Assistance Program, and John
P. Labuda, Student Intern, for appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE, MACY and GOLDEN, JJ.
OPINION
MACY, Justice.
[¶1.] Appellant Iassac
Orlando Pearson challenges his conviction for aggravated vehicular homicide,
asserting the district court improperly admitted as evidence an involuntary
admission he made to a police officer while he was under arrest and hospitalized
with severe injuries. He also contests his conviction for felony wrongful taking
or disposing of property because the district court refused to instruct the jury
on the elements of the misdemeanor of that crime.
[¶2.] We affirm.
[¶3.] Pearson states these
issues:
I. Whether the
prosecutor violated the discovery requirements as set forth in Rule 18 of the
Wyoming Rules of Criminal Procedure by withholding from AppellantState's knowledge of a confession made by
Appellant, even after Appellant specifically requested production of such
information in his motion for discovery and inspection.
II. Whether the trial
court committed reversible error when it refused to instruct the jury on the
lesser included offense of wrongful taking or disposing of property as set forth
in Wyo. Stat. § 6-3-403(a)(iii) (1977).
[¶4.] Pearson and a cohort
stole a car in the early morning hours of June 10, 1990, which was parked in
front of a nightclub in Fort
Collins, Colorado.
Pearson drove the stolen car to Cheyenne later that morning. During the early
evening hours of June 10th, Pearson was seen in Cheyenne driving the stolen car at high rates
of speed, passing through red lights, and weaving through traffic. At
approximately 10:20 p.m., he was driving the stolen vehicle without its
headlights being turned on and at a high rate of speed westbound on 19th Street when he
drove through a red light and rammed the driver's side of an automobile which
was southbound on Logan
Avenue. An accident reconstruction expert testified
Pearson was traveling at a minimum speed of fifty-seven miles per hour at the
time of the collision and the other vehicle was traveling at nineteen miles per
hour. At the intersection of westbound 19th Street and Logan Avenue, a
driver proceeding westbound on 19th
Street does not have the option of continuing through
that intersection in a westbound direction because 19th Street becomes
an eastbound, one-way street.
[¶5.] The driver of the other
automobile died at the scene of the accident. Pearson was seriously injured and
was transported to Memorial Hospital of Laramie County for treatment. He was
carrying a Wyoming driver's license which identified him
as Thomas Sabado. Police Officer Greg Ball was assigned to guard Pearson while
he was in the hospital. Hospital personnel informed Officer Ball that the
injured person being treated by them had identified himself as Iassac Pearson,
rather than as Thomas Sabado. Sabado's mother was summoned to the hospital, and,
when she arrived, Officer Ball informed her the injured party was not her son.
Upon being informed the injured person was not Sabado, Officer Ball initiated a
brief conversation with Pearson:
Q (BY MR. TRISTANI)
Well, you thought you had Thomas Sabado, now you find it's Iassac
Pearson?
A Yes,
sir.
Q What did you do
then?
A I asked him again to
clarify that his name was Iassac Pearson and he repeated it again.
Q And so you were
somewhat surprised by that?
A Yes,
sir.
Q Did you ask any
other questions after that?
A No, sir. I asked - I
verified that that was not - was not him.
Q Okay. Did he then
make any statements or ask any questions?
A Not at that
particular point in time.
Q Okay. Did there come
a time that he did?
A He asked what
happened to the other people.
Q Okay. And then how
did you respond?
A I asked him
specifically what other people, and he said - and he hesitated, and then he said
in the other car. And I told him that the person in the other car was
dead.
Q How did he respond
to that?
A He began half
sobbing and said, quote, unquote, "I fucked up."
Q And about how many
times did he say that or words similar to that?
A Approximately three
times, two times to me and one * * * when his mom and dad w[ere]
present.
[¶6.] Cross-examination
revealed that Officer Ball did not record in his report the fact Pearson had
made these statements. Officer Ball testified he may not have recognized the
significance of the statements at the time but, when he realized the case was
going to trial, he thought more about the details of what happened the night of
the accident.
[¶7.] Although no objection
was made at the time this testimony came to the attention of the jury, Pearson
moved for a mistrial. At a hearing held before the court, without the presence
of the jury, Officer Ball was again called to testify. He repeated the testimony
in virtually the same manner as he had done earlier before the jury, adding
that, in addition to asking Pearson his name, he also asked for his address.
Pearson asked Officer Ball about the others:
Q And then he
said?
A Then I answered,
"What others?" And he said - he wouldn't answer - "You mean the others in the
other vehicle?" He said yes, and I said, "Well, he's dead." And he half sobbing
said, "I really fucked up." And also something I didn't mention yesterday. He
did say this to me, "What does this mean? Does this mean I am going to jail?" He
asked me that.
Q What did you
say?
A I said that's
entirely up to the Judge. I have no way of knowing. I don't know.
[¶8.] Officer Ball
acknowledged that Pearson was under arrest at the time Pearson made the
statements and that he had not read the Miranda rights to Pearson. Officer Ball
related that, although Pearson was injured, he was coherent, and Officer Ball
was able to understand him. Officer Ball testified he told the district attorney
about these events approximately one week before Pearson's trial
began.
The
Confession
[¶9.] Pearson alleged at
trial, and he iterates that argument here, that the admissions he made were the
result of a custodial interrogation which was not preceded by a voluntary and
knowing waiver of his Miranda rights. Pearson claims the statements he made to
Officer Ball were not disclosed to counsel for the defense even though such
statements were requested by the defense in a motion for discovery and
inspection. The State contended the statements were not in the nature of a
confession and it had no duty to disclose the statements. If defense counsel
wanted to inquire further of the State's witnesses, it was at liberty to do
so.
[¶10.] The district court essentially agreed
with the State and denied the motion for mistrial.
[¶11.] Pearson's argument appears to go only to
whether the State complied with the defense's discovery request as prescribed in
W.R.Cr.P. 18. Our decision in Osborne v. State, 806 P.2d 272 (Wyo. 1991), is
dispositive. No order for discovery and inspection was ever issued by the
district court. Absent such an order, we cannot hold the State's failure to
disclose its knowledge of Pearson's statements was improper. Pearson filed a
motion for such an order, but none was issued because the State agreed to permit
free inspection of its file and to provide the defense with an exhaustive list
of proposed and potential witnesses. The statements at issue were not in the
file and would have been discoverable only upon colloquy with Officer Ball.
Pearson also claims the State had an obligation under W.R.Cr.P. 18(h) to inform
the defense of the statements once the State was aware of their
existence.
[¶12.] In his brief, Pearson characterizes the
disputed statements as a "confession." The statements are not a confession
because they do not contain an acknowledgment of guilt of committing a crime,
nor do they establish a fact from which commission of the crime might be
inferred. State v. Osmus, 73 Wyo. 183, 276 P.2d 469 (1954); 23 C.J.S.,
Criminal Law § 878 (1989); Black's Law Dictionary 269 (5th ed. 1979). In the
case at bar, Officer Ball did not initiate a conversation with Pearson. He
merely sought his name and address in order to confirm his identity as being
someone other than Thomas Sabado. Officer Ball did not treat the questions asked
by Pearson as an opportunity to open up a generalized discussion of the crimes
for which Pearson was ultimately convicted.
[¶13.] Admission of the statements was, at
worst, harmless error. W.R.A.P. 7.04; Price v. State, 807 P.2d 909 (Wyo. 1991). The evidence
against Pearson was overwhelming. A number of people witnessed all or part of
the accident, as well as Pearson's conduct on the streets of Cheyenne immediately prior
to the accident.
[¶14.] The district court did not err in denying
Pearson's motion for a mistrial. The disputed statements were not a confession
or an admission, nor was the State's failure to apprise Pearson prior to trial
of the statements' existence an act of misconduct under the governing
authorities.
The Lesser-Included
Offense Instruction
[¶15.] Pearson contends the district court erred
in not giving the following offered instruction:
Pertinent portions of
the Wyoming
statutes provide as follows:
"(a) A person who
buys, receives, conceals or disposes of property which he knows, believes or has
reasonable cause to believe was obtained in violation of law is guilty of a
misdemeanor . . . if the value of the property is less than
$500.00."
[¶16.] The owner of the automobile stolen by
Pearson testified she would not accept an offer of less than $1,500 for the
automobile. She based her testimony upon her knowledge of the amount she had
paid for the car and the condition the car was in prior to the time it was
stolen, as well as upon her experience with preparing and reading classified
advertisements in the Laramie, Wyoming, newspaper. This information enabled her
to discern that the selling price for a car of the make, model, and year of her
car would be not less than $1,500.
[¶17.] Pearson testified he would not pay more
than $200 to $300 for the car he stole. At the close of all the evidence, the
jury was directed not to consider that testimony given by Pearson concerning the
value of the stolen car in arriving at its verdict. Various witnesses, mostly
the police officers who investigated the case, testified the car was not in very
good condition and not very well maintained. Of course, only one of those
officers saw the car before it was wrecked, and he saw it only fleetingly, at
night, in Fort Collins,
Colorado.
[¶18.] In Eatherton v. State, 761 P.2d 91, 94-95
(Wyo. 1988), after remand 810 P.2d 93
(Wyo. 1991) (quoting Miller v. State, 755 P.2d 855, 865 (Wyo.
1988)), we reiterated our five-part test as to when a lesser-included offense
instruction is required:
"(1) a proper request
[for the instruction] is made; (2) the elements of the lesser-included offense
are identical to part of the elements of the greater offense; (3) there is some
evidence that would justify conviction of the lesser-included offense; (4) the
proof on the element or elements differentiating the two crimes is sufficiently
in dispute so that the jury may consistently find the defendant innocent of the
greater and guilty of the lesser-included offense; and (5) mutuality exists such
that the lesser-included charge can be demanded by either the prosecution or the
defense."
[¶19.] Our focus is on elements (3) and (4). The
owner of the stolen vehicle testified to the vehicle's value at the time of the
theft, and she gave a rational basis for her opinion. The preferred method of
establishing value in a case such as this is to determine the market value.
Reposa v. Buhler, 770 P.2d 235 (Wyo. 1989); O's
Gold Seed Company v. United Agri-Products Financial Services, Inc., 761 P.2d 673
(Wyo. 1988).
However, where an owner has sufficient knowledge to establish the value of his
own property, he may properly serve as a witness. Roose v. State, 759 P.2d 478
(Wyo. 1988); Blessing v. Pittman, 70 Wyo. 416, 251 P.2d 243
(1952); Annotation, Admissibility of Opinion of Nonexpert Owner as to Value of
Chattel, 37 A.L.R.2d 967 at § 28 (1954). See also W.R.E. 602 and 701.1 In this case, adequate foundation
existed to sustain admission of the owner's opinion as to the value of the
stolen car, as well as to sustain the jury's verdict that the value of the car
exceeded $500.
[¶20.] The opposite is true of Pearson's
testimony. The district court properly instructed the jury to disregard his
opinion since no basis for his opinion was elicited from him. Pearson's
"opinion" was simply pulled out of the air and was self-serving only. Pearson
had no personal knowledge. He did not base his opinion upon a rational
perception. In the final equation, the only competent evidence of the value of
the stolen car was that given by the owner. The district court did not err in
refusing to give the lesser-included offense instruction.
[¶21.] Affirmed.
FOOTNOTES
1 W.R.E. 602
provides:
A witness may not
testify to a matter unless evidence is introduced sufficient to support a
finding that he has personal knowledge of the matter. Evidence to prove personal
knowledge may, but need not, consist of the testimony of the witness himself.
This rule is subject to the provisions of Rule 703, relating to opinion
testimony by expert witnesses.
W.R.E. 701
provides:
If the witness is not
testifying as an expert, his testimony in the form of opinions or inferences is
limited to those opinions or inferences which are (a) rationally based on the
perception of the witness and (b) helpful to a clear understanding of his
testimony or the determination of a fact in issue.
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