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Johnson v. State3/4/1991
Rehearing Denied March 27, 1991.
In a jury trial in the Laramie County District Court, appellant Andrew J. Johnson was convicted of aggravated burglary and first degree sexual assault. The jury also found him to be a habitual criminal .
Counsel for appellant raised five issues on appeal:
I. Was the Appellant improperly denied his right to waive a trial by jury?
II. Was the suppression ruling of the trial judge proper?
III. Was it reversible error for the trial judge to exclude evidence of the victim's prior reports of sexual assault based on trial counsel's failure to comply with § 6-2-312 W.S. 1977.
IV. Was it reversible error for the trial judge to allow the state to present witnesses which were not provided to the Defendant under the reciprocal discovery provision of Rule 16.1 W.R.Cr.P.?
V. Did the prosecutor impermissibly comment on the Defendant's right to be innocent until proven guilty?
The State of Wyoming states the issues to be:
I. Does the "Supplement Brief of Appellant" filed pro se raise any issues cognizable by this court?
II. Does a criminal defendant have an unqualified right to waive a trial by jury?
III. Was the trial court's denial of appellant's motion to suppress the identification of appellant's eyeglasses proper?
IV. Was the admission of appellant's identification of his eyeglasses harmful error, requiring reversal of appellant's convictions?
V. Did the trial judge properly exclude evidence of the victim's prior conversations of sexual assault?
VI. Did the trial judge properly allow the state to present witnesses previously noticed to the defendant, but not noticed to the defendant under the reciprocal discovery provision of Rule 16.1 W.R.Cr.P.?
VII. Did the prosecutor impermissibly comment on appellant's right to be silent until proven guilty?
We affirm.
In the evening of June 10, 1989, the victim was drinking in a bar with friends. Appellant Andrew J. Johnson, known as "A.J.," came into the bar. The victim had previously met A.J. through her boyfriend. The victim and A.J. talked about the latter's recent break-up with his girlfriend. They decided to check out a few well-known watering holes in Cheyenne.
The victim did not have identification to gain entrance into certain establishments, so she and A.J. drove to her house to look for her I.D. Upon arriving at her house, A.J. went to the living room, sat down in a chair and remained there while the victim looked for her I.D. She did not find it. Nevertheless, they went to the Cheyenne Club with assurances from A.J. that he could gain her admittance to the bar. From there they went to the Mayflower, where they were asked for identification. The victim remembers A.J. reaching into his back pocket and showing his identification card at the Mayflower. After leaving the Mayflower, the victim drove home, leaving A.J. at an unidentified building.
After reaching her house, the victim went to bed. She was awakened sometime later by a banging on her door, and a voice she recognized as A.J.'s. She heard the glass on the door break and footsteps move across the glass. The victim could see the intruder clearly and recognized him as appellant, Andrew J. Johnson. The victim jumped out of bed, pushed appellant and ran toward the bathroom. Appellant grabbed the victim's arms, twisted them behind her back, and threw her face down onto the floor and proceeded to ravish her. Appellant then turned the victim over onto her back and again raped her.
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