437 P.3d 809
Wyo.2019Background
- On Dec. 20–21, 2014, Wade Farrow shot and killed Tony Hansen at a party after an escalating verbal and physical confrontation; Farrow fired seven rounds and fled. He testified he acted in self-defense after being struck and having the gun seized briefly; witnesses described Farrow shooting while Hansen fell and then firing additional rounds while over him.
- Charged with first-degree murder and aggravated assault; acquitted of first-degree murder but convicted of the lesser included offense of second-degree murder; sentenced to 35–65 years. Posttrial Rule 21 motion alleging ineffective assistance was denied; appeals consolidated.
- Farrow raised instructional errors (self-defense instructions, retreat/withdrawal, sudden heat of passion, definition of “maliciously”), exclusion of a witness’s testimony about the victim’s statements, prosecutorial misconduct during closing, and ineffective assistance of counsel.
- The district court excluded testimony of a witness who would have relayed Hansen’s statement that he wanted to fight, allowing only reputation testimony; defense did not call that witness.
- The jury was given an incorrect definition of “maliciously” (joining alternative definitions with “or”); court and parties agreed the wording was improper but the appellate court found no prejudice given the evidence and jury rejection of self-defense.
Issues
| Issue | Farrow's Argument | State's Argument | Held |
|---|---|---|---|
| Jury instruction — right to arm | Court should have instructed jury that one may arm in reasonable anticipation of attack | Farrow didn’t testify he armed in anticipation; evidence showed habit, so instruction unwarranted | No abuse of discretion in refusing instruction |
| Jury instruction — aggressor determination | Instruction improperly forced jury to choose that if Hansen wasn’t aggressor then Farrow must be; jury should only decide if defendant was aggressor | Instruction mirrors precedent; practical alternatives (both or neither) don’t affect self-defense law | No plain error; instruction consistent with precedent |
| Jury instruction — retreat vs. withdrawal | Instruction required retreat but omitted withdrawal, which is different and required for initial aggressor | Retreat instruction imposes lower standard (benefits defendant); if any error, it’s favorable to Farrow | No plain error; no prejudice and retreat text is not more onerous |
| Jury instruction — sudden heat of passion | Court should have instructed State must disprove sudden heat of passion beyond a reasonable doubt | Farrow presented no evidence of sudden heat of passion such that instruction was required | No plain error; defendant didn’t present requisite evidence |
| Jury instruction — definition of “maliciously” | Instruction erroneous by offering alternative definitions joined by “or” | State conceded wording improper but argued no prejudice given record | Instruction was legally incorrect but not prejudicial; verdict stands |
| Exclusion of specific-instance testimony (W.R.E. 404/405) | Excluding witness’s statement that Hansen wanted a fight violated rules and Farrow’s right to present a defense | Testimony was hearsay and cumulative of other witnesses; reputation evidence allowed | No abuse of discretion or constitutional violation — exclusion not prejudicial |
| Prosecutorial misconduct (closing) — burden of proof | Prosecutors improperly told jury Farrow bore burdens on self-defense (e.g., prove fear/no alternatives) | Misstatements were isolated; jury was correctly instructed and defense highlighted misstatements | Misstatements were plain legal error but not materially prejudicial |
| Prosecutorial misconduct — failure to leave | Prosecutor improperly argued Farrow should have left the apartment (implicating Bristol) | Argued prosecutor properly urged jury to consider reasonable alternatives including retreat; State had burden to disprove self-defense | No clear legal error; argument was permissible to show alternatives existed |
| Ineffective assistance of counsel | Trial counsel failed to review discovery, call/obtain experts on stress shooting, and inadequately cross-examined key witnesses | Counsel reviewed discovery, made tactical choices (limited cross; did not call limited expert), and record shows strategic decisions | District court’s denial affirmed; Farrow failed to show deficient performance or prejudice |
Key Cases Cited
- Merit Energy Co., LLC v. Horr, 366 P.3d 489 (Wyo. 2016) (standard for reviewing jury instructions)
- Schmuck v. State, 406 P.3d 286 (Wyo. 2017) (plain error review for unobjected instructions)
- Brown v. State, 336 P.2d 794 (Wyo. 1959) (right to arm instruction not required if weapon carried by habit)
- Baier v. State, 891 P.2d 754 (Wyo. 1995) (instruction on right to arm when self-defense limited by provoking difficulty)
- Drennen v. State, 311 P.3d 116 (Wyo. 2013) (State bears burden to disprove self-defense; retreat/alternatives considered)
- Knospler v. State, 366 P.3d 479 (Wyo. 2016) (approved similar aggressor instruction)
- Widdison v. State, 410 P.3d 1205 (Wyo. 2018) (rejected identical faulty definition of "maliciously")
- Wilkerson v. State, 336 P.3d 1188 (Wyo. 2014) (malice requires reckless indifference to value of human life)
- Johnson v. State, 356 P.3d 767 (Wyo. 2015) (instructional error not prejudicial where evidence overwhelmingly supported conviction)
- Bush v. State, 193 P.3d 203 (Wyo. 2008) (constitutional right to present a complete defense)