Johns v. State, 409 P.3d 1260

Background

Defendant Don Wesley Johns was convicted by a jury of first‑degree murder for stabbing his roommate Don Wickersham to death; sentence: life without parole. Trial evidence included the victim’s 29 sharp‑force wounds, blood in the apartment, a sword in the bathtub, and defendant’s post‑event statements admitting the killing.
Several guests described Johns as belligerent and intoxicated earlier that evening; witnesses did not observe a physical altercation immediately before the killing.
A jailhouse witness (Fady Osseiran) testified Johns described stabbing Wickersham repeatedly and finishing him off after he appeared incapacitated.
The district court instructed the jury on self‑defense (including both ‘‘no duty to retreat’’ in one’s home and retreat obligations), voluntary manslaughter (sudden heat of passion) using the Wyoming pattern instruction, and malice for second‑degree murder (recklessness language).
The jury used a stepped verdict form (first consider first‑degree murder, then second‑degree, then voluntary manslaughter) and found Johns guilty of first‑degree murder. Johns appealed challenging the instructions and the stepped verdict form.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Johns)	Held
1. Self‑defense instructions (including duty to retreat/no‑duty)	Instructions were appropriate only if prima facie showing made; State had objected to giving self‑defense instructions.	Court erred by giving conflicting self‑defense and retreat instructions, confusing the jury.	Court held Johns failed to make prima facie showing of self‑defense; any instruction error caused no prejudice, so no plain error.
2. Burden re: sudden heat of passion (voluntary manslaughter instruction)	Pattern instruction was proper at trial; State did not object to giving it.	Instruction failed to tell jury State must disprove sudden heat; thus improper.	After Schmuck clarified law, court reviewed for plain error and found no prejudice because Johns did not present evidence or argue sudden heat.
3. Stepped verdict form	Stepped form was permissible; State did not argue otherwise at trial.	Stepped form prevented jury from considering sudden heat as mitigating and foreclosed manslaughter finding.	No plain error: because no evidence or argument supported sudden heat, a different form would not have changed the verdict.
4. Definition of ‘‘recklessly’’ in malice (2d‑degree murder)	Instruction on malice was proper per Wilkerson; State did not object to its wording.	Court should have further defined “recklessly”/“enhanced recklessness.”	No plain error: jury convicted of first‑degree murder and never reached second‑degree instructions under the stepped form, so no prejudice.

Key Cases Cited

Schmuck v. State, 406 P.3d 286 (clarified plain‑error review for jury instruction errors)
Brown v. State, 332 P.3d 1168 (defendant must make a prima facie showing to trigger State’s burden to disprove self‑defense)
Drennen v. State, 311 P.3d 116 (self‑defense burden and retreat principles)
Shull v. State, 388 P.3d 763 (pattern voluntary manslaughter instruction and burden language)
Wilkerson v. State, 336 P.3d 1188 (definition of malice for second‑degree murder)
Hawes v. State, 335 P.3d 1073 (trial court has broad latitude in instructing jury; instructions evaluated as a whole)
Ramos v. State, 806 P.2d 822 (elements required to establish self‑defense prima facie)
Dean v. State, 77 P.3d 692 (lesser‑included instruction requires some minimal evidentiary support)
Bruce v. State, 346 P.3d 909 (refusal to give self‑defense instruction proper where it would invite speculation)
Toth v. State, 353 P.3d 696 (invited‑error doctrine bars appeals based on errors induced by party’s own actions)