Nisonger v. State
Nisonger v. State
Opinion of the Court
Defendant-appellant was found guilty of murder in the second degree by the district court jury, as a violation of § 6-4-104, W.S.1977, and sentenced by the trial judge to life imprisonment in the Wyoming State Penitentiary. In seeking reversal of his conviction, defendant presents two issues for determination on appeal:
“1. The defendant’s constitutional rights to be free from invasions of privacy and unreasonable searches and seizures, to be accorded due process of law and to be provided equal protection under the law were blatantly abridged and the Wyoming Code of Civil Procedure [sic] was emasculated when the trial court admitted into evidence a letter written by the defendant to his wife during his pretrial detention in the Sweetwater county jail.
“2. The verdict and judgment of conviction is contrary to law and should be set aside inasmuch as reasonable minds would find that the relevant evidence is insubstantial to prove that the defendant-*1095 appellant committed the crime of second degree murder.”
We shall affirm.
On November 18, 1976, the badly decomposed body of a human being, later identified by the Federal Bureau of Investigation as that of John Anthony Boggs, was found in the desert west of Green River, Wyoming. After local authorities had released the information concerning the identity of the body, the police in Salt Lake City, Utah, received an anonymous phone call implicating both the defendant as well as one John Scott Beverleigh in Boggs’ death. Subsequently, in a statement given to the Salt Lake City police, Beverleigh identified the defendant as the one who had actually killed the deceased.
On the basis of Beverleigh’s statement, the defendant was arrested and charged with murder in the first degree. Section 6-4-101, W.S.1977. At trial, Beverleigh testified that a day or so prior to Boggs’ death, the defendant had told him, “We ought to take him [Boggs] out in the desert antelope hunting. There’s a lot of money for us. Nobody will ever miss him,” and that even prior to that conversation, the defendant had related to Beverleigh how he had always wanted to kill somebody, somebody nobody would miss. Beverleigh stated that on the day of the shooting all three men, the defendant, Beverleigh, and Boggs, the deceased, had gone into the desert to poach an antelope but when none could be found, their attention turned to hunting jackrabbits. It was, according to Bever-leigh, while all three men were walking along a gully, that the defendant shot the deceased, first with a black powder cap and ball pistol, and then with a 9 mm. automatic pistol.
In addition to the testimony related by Beverleigh at trial, the State also established through expert testimony that the deceased had died as a result of either of two bullet wounds, one caused by a .38 caliber bullet fired from a 9 mm. automatic pistol; the other resulting from a bullet of unknown size or specification, identification being impossible because of the bullet’s fragmented condition. In conjunction with this evidence, the State also introduced by photocopy a portion of a letter written and sent by defendant to his wife during his pretrial incarceration. It is upon the alleged improper admission of this letter that defendant raises his first assertion of error on appeal.
During the booking procedure at the Sweetwater county jail, wherein he was incarcerated pending trial, defendant signed a standardized consent form authorizing censorship of his incoming as well as outgoing mail.
Turning then to the specific objections presented to the trial court, we find that neither are sufficient grounds to support a finding of reversible error. As for any coercion or duress, although one federal court has expressed its opinion that any consent given in exchange for “mail privileges” is inherently coercive,
Defendant asserts in that connection that the use against him of the incriminating contents of the censored letter constitutes an unlawful seizure and is inadmissible in evidence. The law is overwhelming against his position. Where the prisoner has himself composed a letter and released it, knowing that it would be read during routine censorship, he cannot complain that it is unfair. The State has lawfully come into possession of a voluntary statement. Stroud v. United States, 1919, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, reh. den. 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317; People v. Oliver, 1975, 63 Mich.App. 509, 234 N.W.2d 679; State v. McCoy, 1974, 270 Or. 340, 527 P.2d 725; State v. Johnson, Mo.1970, 456 S.W.2d 1. Generally, see Annotation, 52 A.L.R.3d 548, entitled “Censorship and Evi-dentiary Use of Unconvicted Prisoners’ Mail.”
As for defendant’s assertion that the introduction of the letter was in contravention of the marital privilege as encoded in § 1-12-104, W.S.1977,
Finally, by his second allegation of error, defendant has asserted that the evidence as presented in the trial court is insufficient on the whole to support his conviction. In considering such contention, we must keep in mind the specific question before us. It is not whether the evidence establishes guilt beyond a reasonable doubt for the members of this court, but rather whether the evidence of record 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. Kahler v. Martin, Wyo.1977, 570 P.2d 720; State v. Clanton, 1976, 219 Kan. 531, 548 P.2d 768; Hendrix v. McKee, 1978, 281 Or. 123, 575 P.2d 134; Oberhansly v.
Affirmed.
ROSE, J., filed a specially concurring opinion in which McCLINTOCK, J., joined.
.
“I do hereby consent to the Sheriff and the Deputies of Sweetwater County to censor all mail and packages sent or received by me while in the custody of said Sheriff.
“/s/ Brent Nisonger”
. Excerpt from State’s Exhibit No. 6:
“ * * * The police told blab [Beverleigh] that they need the 9 mm. It would be a miracle if they ever found all the pieces and put them back together, ha ha. * * * ”
. See Palmigiano v. Travisono, D.R.I.1970, 317 F.Supp. 776, 792:
“I feel compelled to comment on the Fourth Amendment waiver signed by prisoners at the time of commitment. In exchange for mail ‘privileges’ ACI [Adult Correctional Institutions] officials require from each inmate his signature to a written statement authorizing them to censor his mail. It is this Court’s view that such ‘authorization’ under the inherently coercive circumstances under which it is given is without effect and cannot operate as a waiver or consent under the Fourth Amendment to the opening and reading of all of his mail.” (Bracketed material added.)
. Section 1-12-104, W.S.1977, provides:
“No husband or wife shall be a witness against the other except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one against the other. They may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.”
While not relevant in the case before us, as a matter of "related interest, Rule 501, W.R.E., provides:
“Except as otherwise required by constitution or statute or by these or other rules promulgated by the Supreme Court of Wyoming, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the State of Wyoming in the light of reason and experience.”
Concurring Opinion
specially concurring, with whom McCLINTOCK, Justice, joins.
I concur in the result herein, but I disagree with the court’s conclusion with respect to the voluntariness of the appellant’s consent, authorizing censorship of his mail. Such an “authorization” is inherently coercive — since it evolves from a no-consent, no-mail situation — and, therefore, should not be considered as a waiver under the Fourth Amendment. Palmigiano v. Travisono, D.R.I., 317 F.Supp. 776.
This does not avoid the fact, however, that the defendant, nevertheless, voluntarily issued the letter — with knowledge of the mail-censorship probability. This would be sufficient, for me, to support admissibility of the letter in the absence of other coercive circumstances under United States v. Baumgarten, 8 Cir., 517 F.2d 1020. In other words, I would hold, as did the court in Baumgarten, supra, that the scanning of the defendant’s letter was a valid “entry” (in the search and seizure context). The “plain-view” doctrine then comes into play to justify the admission of the part of the letter which was read to the jury.
Reference
- Full Case Name
- Brent NISONGER, Appellant (Defendant Below), v. the STATE of Wyoming, Appellee (Plaintiff Below)
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- 29 cases
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- Published