Schmuck v. State
406 P.3d 286
Wyo.2017Background
- Defendant Terry L. Sehmuek attacked his wife with a hatchet, causing a depressed skull fracture and intracranial hemorrhage; charged with attempted first-degree murder; jury convicted of attempted second-degree murder.
- Trial court instructed on first- and second-degree murder and voluntary manslaughter (sudden heat of passion as manslaughter element); gave self-defense instructions over State objection.
- Defense argued he acted in a fight-or-flight reaction and had cooled during drive; prosecution relied on post-arrest admissions that he intended to kill.
- Key contested jury instructions: (1) failure to instruct that State must disprove sudden heat of passion beyond a reasonable doubt; (2) definitions of “malice” for first-degree murder and both “malice” and “maliciously” for second-degree murder; (3) omission of statutory definition of “recklessly”; (4) use of term “provokes” in aggressor instruction; and (5) instruction imposing an absolute duty to retreat before deadly force.
- Trial court used a stepped verdict form; defendant acquitted of first-degree murder, convicted of attempted second-degree murder and sentenced to 30 years to life. Defendant did not object to many instructions at trial; appeal reviewed under plain-error or abuse-of-discretion standards where appropriate.
Issues
| Issue | Sehmuek's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Failure to instruct that State must disprove sudden heat of passion beyond reasonable doubt | Shull requires the jury be told State must prove absence of sudden heat of passion when defendant presents some evidence | Shull should be reconsidered; burden can be satisfied by existing instructions | Court declined to treat this as structural error; applied plain-error review and found no material prejudice because defense consistently denied heat-of-passion theory; no reversal |
| 2. Definition of "malice" for first-degree murder | Instruction omitted requirement of hatred, ill will, or hostility (Johnson) | Definition was adequate; any error harmless because jury acquitted first-degree murder | Error existed per Johnson but caused no prejudice (acquittal); no reversal |
| 3. Defining both "malice" and "maliciously" for second-degree murder; failure to define "recklessly" | Defining both could confuse jury; omission of statutory recklessness definition lowered culpability standard | Instruction tracked Wilkerson and pattern jury instruction; Wilkerson did not require giving statutory recklessness definition | Court found using both forms permissible and consistent with Wilkerson; omission of statutory definition not plain error |
| 4. Use of term "provokes" in aggressor/self-defense instruction | "Provokes" is a term of art implying intent; should be defined or removed | "Provokes" has ordinary meaning sufficient for jury; specialized 1968 dictionary definition not controlling | No plain error: term was appropriate in ordinary sense and no evidence of manufactured pretext for violence |
| 5. Duty to retreat instruction imposing absolute duty to retreat | Instruction imposed absolute duty to retreat regardless of aggressor finding | Retreat requirement appropriate where defendant is aggressor; jury should decide aggressor first | Instruction conflicted with Drennen (absolute duty only after aggressor finding), but defendant was clearly aggressor on facts, so error harmless |
Key Cases Cited
- Shull v. State, 388 P.3d 763 (Wyo. 2017) (trial court must instruct jury that State bears burden to disprove sudden heat of passion when defendant adduces some evidence)
- Mullaney v. Wilbur, 421 U.S. 684 (U.S. 1975) (due process requires prosecution to prove absence of heat of passion when it negates an element of murder)
- Patterson v. New York, 432 U.S. 197 (U.S. 1977) (distinguishing Mullaney where affirmative defense did not negate an element of the offense)
- Wilkerson v. State, 336 P.3d 1188 (Wyo. 2014) ("malice" for second-degree murder means recklessness manifesting extreme indifference to human life)
- Johnson v. State, 356 P.3d 767 (Wyo. 2015) (for first-degree murder juries must be instructed that malice includes hatred, ill will, or hostility)
- Drennen v. State, 311 P.3d 116 (Wyo. 2013) (defendant bears slight prima facie burden for self-defense; aggressor must withdraw before regaining right to self-defense)
- Neder v. United States, 527 U.S. 1 (U.S. 1999) (instructional errors are generally subject to harmless-error analysis rather than automatic reversal)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (failure to instruct on prosecution's burden to prove every element held structural error)