*1 BRALEY, Appellant Donald
(Defendant), Wyoming,
The STATE of (Plaintiff).
Appellee
No. 86-56.
Supreme Wyoming. Court of
Aug. 1987. *2 into apartment procured
went his gun firing warning shot, and after Danny Gregorio. shot and killed A jury appellant second-degree convicted mur- der. appeal issues on appellant raised
are:
“I “Whether it was error to exclude Dr. testimony Merrell’s as to the state mind the Defendant.
“II “Whether it error to was limit extent investigation of defense alleged into the jury tampering.
“HI “Whether it was error to refuse pro-offered instructions the de- [sic] fense.
“IV “Whether it error to was exclude the history arrest of the victim. Program, Wyoming Defender Public Munker, Defender, Leonard D. Public State “V Naylor, Counsel, Chey- Julie D. Appellate “Whether there exists insufficient evi- enne, appellant. for support Appellant’s to dence conviction McClintock, Gen., Atty. A.G. John W. degree of second murder.” Renneisen, Gen., Atty. Sr. K. Asst. David affirm. We Gruver, Gen., Atty. Cheyenne, Asst. August 22, 1985, appellee. victim, Danny On Gregorio, driving Cadillac, while his wife’s BROWN, C.J., THOMAS, Before picked up Benny Pena and the twosome CARDINE, MACY, URBIGKIT and JJ. proceeded to the residence of Barnes. John purpose of the visit to the Barnes’ BROWN, Chief Justice. to painting house was talk to Barnes about case, resulting this Gregorio. Gregorio stopped homicide was a car for his dispute parking. culmination of a over in the near apartment car street Gregorio Danny parked wife, Pam, his appellant Braley vehicle at the Donald and his in apartment occupied by Gregorio curb front of an to order talk with Barnes. appellant Braley’s Braley Cadillac, Donald parked W. the driver’s seat wife, Pam, seat, or- appellant passenger’s his wife Pena and Barnes Gregorio dered through his car. There- move leaned the driver’s while window after, appellant and wife traded insults the trio conferred. While this conference with Gregorio ongoing ex- up and his friends and the Trans Am drove blue change pleasantries Gregorio into a escalated behind Cadillac and honked. shouting time, Cadillac, appellant match. did not move the Trans At that so the Am parked cording up backed and went around was to describe “De- juncture Barnes said fendant’s reaction to the vehicle. At events of the night question, Am and whether Gregorio the owners Trans such reac- tion perspective was reasonable neighbors they likely were his fear, of what causes and how Danny fear devel- police. Gregorio would call Also, ops.” according appellant, “The over to the thereupon pulled Cadillac *3 of testimony substance the was directed at Braley parked it in front of the curb and or whether not the Defendant’s actions apartment. were reasonable actions of self-defense un- A later Trans Am half hour the returned der the all circumstances.” pulled up parked and behind the Cadillac. However, the trial court disallowed the Appellant got his out of the and wife Pam testimony appellant and offer made an of Gregorio, and Pena Trans Am confronted proof. Dr. Merrell noted in offer the of Appellant the Barnes. demanded that proof eight (defense or nine factors counsel Braleys, Gregorio, Cadillac be moved. The “stressors”) characterized these factors as Pena Barnes all in the became involved present shooting at the scene the “that imbroglio As would ex- that followed. be trigger would or could or did fear.” pected, principals parking space all in the appellant’s doctor “judg- concluded that drinking fracas had been before the fact. might ment not as as it clear Dr. be.” Demands, insults threats ex- “ * * * Merrell further ap- stated does [I]t exchanges changed. escalated into Verbal pear (appellant’s) judgment that his was shoving hitting. Appellant said he saw * * *” fairly well his affected fear. Pena) passenger (apparently awith proof The offer of concluded: although knife no knife ever found. “Q. Now, Okay. let me you ask cou- house, Appellant into his went his loaded questions: ple of Would fear that'he rifle and returned to the scene of the con- impair function, you had his motor men- He fired air. frontation. a shot into the handling rifle? tioned Only good judg- Pena and Barnes exhibited Struggling rifle, yeah. “A. with upon hearing ment and the shot ran. “Q. impair it Okay. Could his blood tarried, Gregorio appellant, and said to pressure change? or cause a do, you going “What are shoot me with know, body “A. You fear can affect your gun?” Appellant Appellant did. then increasing well, by changing a lot of — to Gregorio, lying walked over who was bodily functions. said, ground, up, you’re “Get not “Q. Okay. Pulse? shot.” Yes, pulse up, go- rate going “A. heart shooting appellant After the called up, increasing, get- ing pressure blood police and said someone had hit head his vasodilatation, ting peripheral excite- and he Appellant needed ambulance. ment, increasing and forth. alertness so here, wife, “Pam, also said to his come “Q. judgment? How about got get together.” we’ve our stories certainly I think fear can im- “A. Appellant charged degree with first pair judgment.
murder. At trial he relied on two theories offer, my MUNKER: That’s Your “MR. ’ of defense: accident and defense Honor.” wife, Appellant Pam. sec- was convicted of proof rejected The trial court offer degree ond murder and sentenced to and held that fear and stress are emotions penitentiary years not less than 20 nor jury. The court stated: understood years. more than * “ * * (perception, is within ken [I]t knowledge vision) understanding, or or that is there either was was response
At trial called Dr. Arthur not an assault Merrell, N. psychiatrist justified jus- as a or not witness. defendant was either purpose believing ac- himself to immi- testimony Dr. Merrell’s tified danger,
nent
and that he either did or did
average layman [emphasis added]”;
(2)
not behave as a reasonable
sim-
“the witness must have sufficient
ilarly
skill,
situated. That's the
knowledge,
reason we
experience
in that
jurors. They
calling
have
set the standard of
field or
as to
appear
make it
regard
opinion
reasonableness with
to these
that his
kind
inference
prob-
will
issues,
surrendering
judgment
ably
aid the
trier in his search for
[emphasis
truth
expert.”
added]”;
(3)
of that to that of an
expert
testimony is
if
inadmissible
“the state
agree
judge.
We
with the trial
pertinent
art or scientific knowl-
702, Wyoming
Evidence,
Rules of
edge does
permit
a reasonable
provides:
opinion to be
asserted even
an ex-
scientific, technical,
“If
special-
or other
’
pert.”
Evidence, 13,
McCormick on
knowledge
ized
will assist the trier of
pp.
(2d Ed.1972).”
29-31
fact to understand the evidence or to
In Smith
supra,
*4
at
we
issue,
quali-
determine a fact
a witness
stated:
expert by knowledge, skill,
fied as an
“Expert testimony
appropriate
experience, training,
education, may
or
subject
the
inquiry
is one
jurors
testify
opinion
thereto
the form of an
experience
normal
qualifications
or otherwise.”
“ * * *
laymen
would not be able to decide
special
The
reliability
‘aura of
without the technical assistance of one
surrounding
trustworthiness’
scien-
having
knowledge
unusual
subject
of the
expert
tific
testimony,
or
particularly
*
skill,
reason of
experience or edu
calls for trial court discretion.
[Ci-
particular
cation
field. [Citations.] ***
State, Wyo.,
Buhrle v.
627
tation.]”
fense
State, Wyo.,
rely upon expert testimony
Buhrle
showing
reject expert testimony is a
court and will not be reversed without a
within the sound discretion of the trial
The trial court’s decision to admit or
P.2d
fact
“* * *
1374,
v.
of clear and
situation it is not
State,
motion for a alleging new trial newly dis- evidence, covered which was based on evi- II dence regarding discovered jury. The Appellant contends that it was error for evidence was that defense counsel had investigation alleged the court to limit talked jurors, to one of the and had been jury tampering. told that jury deliberate, when the went to trial, In the middle of the defense coun- Kardong, Ms. Giles and Ms. the two women Daniels, secretary, sel’s Ms. received an who had been anonymous mentioned anonymous phone The caller said call. that caller, had informed jurors other that they trial, attending he had been and wanted voting degree for first murder and defender, public Munker, to let the Leonard change would not their minds nor jurors Gregorio know that two knew consider a conviction on lesser offense. personally. jurors: The caller described the questioned by counsel also said one was a black woman and the other was jurors the remainder of the were torn woman, heavyset, maybe an older about manslaughter between degree and second sitting people two three from the left in Finally, murder. Kardong Ms. voted for the front row caller box. murder, degree second and after more dis- give phone number, would name cussion, agreed go Ms. along Giles to also *5 agree but did to call back later. The court Appellant argues with that verdict. Giles, allowed Ms. black woman on supported tip new evidence that Mike jury, questioned. to be Gregorio jurors pocket, had two in his granted. that a trial Appel- new should be recess, evening After the court met in says posi- lant that but for the adamant chambers with counsel and with Ms. Dan- Giles, Kardong tions of Ms. Ms. iels. ques- Ms. Daniels was sworn in and jurors might other have returned a verdict phone tioned repeated about call. She guilty manslaughter. what was said and stated that the caller had not called day. Although back that portion This court remanded this of the court said that it felt it knew who case back to the district court for the limit- was, Evans, individual a Mr. Mike a con- purpose considering ed the motion for felon, victed the court also said that the new trial. individual had not nor identified himself During hearing pursuant the first to the provided anything cogni- that it could take remand, Judge L. heard Edward Grant ar- zance day of. The next counsel defense (cid:127) gument, declined but to hear witnesses and telephone received a anony- call from the the matter was continued. The next hear- mous caller. This conversation was record- ing Judge Joseph was held before F. Maier. ed defense counsel and was thereafter time, jurors Kardong, At that Giles and time, played for the court. At that defense Nantz, Gregorio foreman and Mike counsel recalled John Barnes because the questions testify. posed were called to caller indicated Mr. Barnes had additional jurors to the were limited whether not information. The tape substance of the any approached by any of them had been recorded Greg- conversation was that Mike during outside source the course of the orio, victim, the father of the had two of trial, they and whether had been influenced jurors pocket. his The court con- by any Gregorio outside source. Mr. was cluded that the caller was indeed Mr. Ev- questioned toas whether or not he had had ans, and that should continue with the any any jurors. contact with Each trial developed and allow the matter to be any witness denied contact influence. later. permitted Defense counsel to in- was trial, appellant quire
After the was allowed to further into the deliberations approach 702, jurors subject jury- to Rule Uni- position during The state’s inquiry may questioned be about extraneous infor regarding alleged jury tampering was that mation or outside influence may not be making vague a broad and interrogated about impact its on him or allegation impugning jury system jurors. other Marshall, Brofford fishing that it expedition. was a pros- (6th Cir.1985). F.2d 845 also, See 3 Wein- ecution anony- also said that because the Evidence, stein’s 606[05], pp. 606-40, mous caller was identified as a convicted 606-41 (1985); and n. 4 and 3 Louisell &
felon,
“tip”
unworthy
his
of belief. Mueller,
Evidence,
Federal
286-287
§§
juror
The trial court ruled
If
permitted
that what had been
testify
presented
support appellant’s
did not
mo- about
juror said,
what another
it would
nothing
tion for a
trial and
impeached
new
result
in an unwarranted intrusion into
jury’s
Accordingly,
verdict.
the motion jury deliberations. United States v. Ai
for a new trial was denied.
mone,
(3rd
Cir.1983).
F.2d 822
See
also, United
Crosby,
States v.
justified occur to until after all evi- person being cumstances that defended produced. dence had pro- been He did not Furthermore, use could force. cannot support duce a shred of evidence greater person being use force than the theory aggressor abandoning of an defended could use. fight. fact, In appellant and his wife con- sistently Leeper any aggression denied part on the P.2d of Braley. Testimony produced Mrs. we said: Braleys Pena, Gregorio, was that and asserting justification “One de- of aggressors Barnes were the be- fense steps position of another into the ginning doing hitting person Defense an- defended. shoving. its other takes form and content from defense self. defender is given by The six self-defense instructions
justified using force unless he or she appellants adequately the court covered reasonably believes the defended theory testimony pro- self-defense danger is in immediate of unlawful bodi- Appellant duced at trial appellant. does ly harm, and that the force reasonable Arguably, not contend otherwise. necessary prevent threat. may record trial there a modicum of degree defender can use aggres- Braley that Mrs. was the evidence necessary force relieve the risk However, sor. there not a scintilla of *” harm. [Citations.] aggres- that she evidence abandoned her
Appellant further contended that wonders how she could abandon sion. One aggressor something his wife have been that she claims she was not brawl, therefore, necessarily he was doing. entitled It that she follows ag on the an instruction withdrawal could not communicate abandonment when *7 gressor. proffered in following He the she did abandon. designated “C,” struction re agressor-abandonment find in- We the
fused: totally struction would have confused “Generally, right use self-defense if jury anything would tend cast aggres- not available to one is the who theory appellant’s entire of self- doubt on However, if provokes sor or the conflict. Further, competent defense. there was no provokes one who a conflict thereafter appellant’s proffered support evidence to in- good withdraws from it in faith and instruction nor a rational view of would forms adversary by words or actions giving any justify such instruc- evidence conflict, that he desires to end the and he properly tion. The trial court refused to pursued, is thereafter he then has give appellant’s proposed C. instruction right same of any self-defense as other person.” IV aggressor’s right law of an issue con to self- the fourth Garcia post defense is stated in “it to exclude the tends that was error (1983): history of the victim.” arrest
In this issue we are concerned principally (t * [*] [*] 401-404, with Rules W.R.E. “(b) crimes, Other wrongs, or acts.—Ev- 401. “Rule Definition of ‘relevant evi- crimes, idence of other wrongs, or acts is dence.’ prove admissible to the character of “ person in order to show that he acted ‘Relevant means evidence’ evidence in conformity may, therewith. It how- having any tendency to make the exist- ever, be for purposes, admissible other consequence ence of fact that is of proof motive, such as of opportunity, in- the determination of the action more tent, preparation, plan, knowledge, iden- probable probable or less than it would tify, or absence of mistake or accident.” be without evidence. We frequently find it necessary to consider “Rule 402. Relevant generally evidence the interrelationship of these four rules of admissible; irrelevant evidence inadmis- evidence. sible. 404(b), Under W.R.E., Rule prosecutors admissible, “All relevant evidence is ex- oft seek to introduce concerning evidence cept provided by statute, by otherwise defendant's They misconduct. con- rules, these prescribed or other rules tend that this evidence is admissible to Supreme Court. Evidence which motive, show opportunity, intent, prepara- is not relevant is not admissible. tion, plan, knowledge, identity, of absence “Rule 403. Exclusion of relevant evi- mistake, accident, pattern, complete story grounds confusion, dence prejudice, of or course of conduct. After this evidence waste time. has been admitted for a purpose limited set 404(b), out in prosecutors Rule “Although relevant, have been evidence ex- to subtly known use such per- evidence to probative cluded if its value is substan- suade the trier of particular fact that on a tially outweighed by danger of unfair occasion the conformity accused acted in prejudice, issues, confusion of the or mis- with character trait described leading jury, or by considerations This, course, testimony. is a subversion delay, time, undue waste of or needless of Rule 404. presentation of cumulative evidence. Similarly, one of the most ancient and “Rule 404. Character evidence not ad- successful defenses in homicide cases is to conduct; prove exceptions; missible try say, the victim. That is to show the other crimes. that the deceased was a bad “(a) generally. Character evidence —Ev- got and deserved society what and that person’s idence of a character or a trait is none the worse it. The trial court of his character is not admissible for the “giveth” must provision balance purpose proving that he acted in con- 404(b),against away” pro- the “taketh formity particular therewith on a occa- balancing vision of Rule 403. That delicate sion, except: problem presented to the trial court in “(1) Character of Accused.—Evidence the case us. before pertinent of a trait of his character appellant attempted At trial to introduce accused, offered prose- sheet) into (rap evidence arrest record same; cution to rebut the victim, Danny Gregorio. This record “(2) Character of Victim.—Evidence of arrests, showed fourteen none for felonies. *8 pertinent trait of character of the This history shoplifting age included by victim of the crime offered an ac- thirteen and the numerous other arrests cused, by prosecution the to rebut taking tires, involved a traffic citation war- same, the or evidence of a character rant, drinking more than a driving few and peacefulness trait of of the victim of- charges, public and one in disturbance by fered prosecution the in a homicide yelling. which he was In one of the case to rebut evidence that the victim any by arrests was violence the victim not- aggressor; ed, arrest, the first and in physical that the violence arrest; give not the reason for the it rather We considerable deference to the place booking took at the desk. evidentiary rulings trial court’s and will not disturb them unless the clearly court has Appellant the characterizes victim’s be- abused its discretion. The trial court was history as “uncivilized or civil dis- havioral justified refusing in to admit into evidence disagree. do not obedience.” We How- the arrest record of the victim. The arrest ever, nothing “rap in there was the sheet” history slight had relevance. We do not guns, suggesting the use of or other knives danger doubt that the prejudice weapons likely bodily to result in death or outweighed probative confusion value any harm. Nor was conduct described of the arrest record. history suggesting threatening life be- might havior or result behavior bodily
serious harm. V Arguably, pieces the bits and of the In argument his final appellant claims might support appellant’s theory record that there was insufficient evidence to con- aggressor. victim was How- degree vict him of second murder. ever, go beyond this character trait did not Appellant was convicted under 6-2- involving shoving, pushing, incidents 104, W.S.1977, (1983 Replacement), which yelling. The trial court was faced with the provides: proscribed possible prejudice and confusion purposely maliciously, “Whoever State, Taylor by W.R.E. premeditation, without kills human Wyo., 642 P.2d we said: being guilty of murder in the second generally “It has been held that the ad- degree mission of evidence is within the sound prove He contends that the state failed to discretion of the trial court and absent a malice.
clear
abuse
discretion will not be dis-
“* * *
general
turbed.
It is also the
rule that
duty of this
is to
[T]he
foundation, relevance,
competency,
light
examine
all
evidence
most
materiality, and remoteness are within
if
favorable to the state to determine
the sound discretion of the trial court
uphold
there is sufficient evidence to
upheld
appeal
and will be
absent
State, Wyo.,
verdict.” Cheatham v.
clear abuse of discretion.”
(1986).
P.2d
quoting Taylor,
Jahnke
After
State, Wyo.,
also,
we said
Cutbirth v.
663 P.2d
See
State, supra,
at 1005:
(1983).
“The
establishing
burden of
the clear
Malice has been defined as in
abuse of discretion must be assumed
killing
legal justification
tentional
without
party
ruling
who attacks the
or excuse and under circumstances which
State,
court. Buhrle v.
trial
supra;
are insufficient to reduce the crime to man
State, Wyo.,
Nimmo v.
pull consciously court would not and no malfunction. After develop one shooting appellant standard used to convict gun out- threw singularly acquit, side.” Id. another different at 890. “ * * * respectfully emerging address the double malice of which the crime [T]he standard. speaks may inferred from the use of a deadly weapon manner, in deadly if the permit. facts and circumstances will ISSUE II: ERROR TO LIMIT THE EX- may Malice be inferred all of the TENT OF DEFENSE INVESTIGA- * * ” * other facts and circumstances. TION INTO THE ALLEGED JURY State, Leitel v. P.2d TAMPERING jury After a claim of a fixed arose at Smith v. supra, we trial, attempted probe jury defendant said: disprove allega- status to establish or those “Purposely denotes intent. Use of a tions. The trial court confined defense deadly weapon gives presump- rise occurring counsel’s examination to events * * * tion of design intent to kill. during trial and before commencement kill killing. is inferred from the act of deliberations, denying inquiry which * * * Malice be inferred from the could reach the substance of the corrobo- deadly weapon dangerous use of a in a rating information furnished interview deadly manner if the facts and cir- by jury foreman. The trial court deci- * * * ” cumstances so allow. supported sion now this court is based
Therefore, misconception 606(b), on a we hold that there was suffi- that Rule W.R.E., cient evidence complete from which the could exists as a to all barrier beyond find appel- inquiries open reasonable doubt that jury prejudice to view lant killed Danny Gregorio purposely beyond specifi- session deliberation *10 I cally from examination. dis- restriction excluded The actual was circumscribed 606(b) excep- agree in Rule by allows court at the the trial commencement of inquiry proceeds hearing: tion—where the motion the new-trial allegation juror that a lied dur- substantial Very say you “THE COURT: well. You stating: ing voir After dire. guidelines. my understand the It’s “ * * * the comments indicate Where understanding all so we have the —and preconceived juror that the had notions understanding all same we’re con- —that personal knowledge liability guilt or jurors about is to cerned ask whether or issue, the statements about facts not, they after were chosen selected they are may admissible not because be case, they any in this whether had out- 606(b), prohibited not Rule but prior anyone side contact with to reach- lied tending prove juror that the on ing verdict, their and not about their * * Weinstein, , the voir dire ' thought they deliberations or what of or 606[04], 606-33 p. during talked about or felt their delibera- states: Weinstein further tions.” “Wigmore prohibit would all disclosure— premise confinement examina- proof in con- except where is offered jurors occurring tion of events dur- showing had juror nection that the with a ing is not trial established this record. in failing lied on the dire to indicate voir Obviously if family, par- decedent’s * * bias Id. at 606-34. father, ticularly had “influence” with dur- problem considered here arose jurors, predate the two the basis would ing the the trial course of when a trial commencement and would have exist- as Mi- anonymously, later identified ed the initial voir-dire examination Evans, chael the office of Public called occurred, questioning as evidenced in Juror prejudicial of de- Defender about influence K as one the two the infor- named including family jurors, cedent’s with two mant: grandmother. one his who was [Prosecuting Attorney]: CARROLL “MR. My examination of the record does K, you anything do about this Mrs. know accord with the conclusion of this except you what heard here in case have that: courtroom? placed “The restriction on I heard in the K: Just what have “MS. questioning his at the witnesses *. courtroom. hearing on motion for new trial anything CARROLL: there “MR. And is for in specifically provided strictures any you to tell of us that want 606(b), Otherwise, Rule he was W.R.E. bearing your ability to have a would given wide latitude.” impartial juror a fair serve as 606(b)only justifies de- examination case? deliberations, during nial of occurrence “MS. K: No. clearly retesting affords no restriction on accuracy of initial voir-dire answers. under F.R.E. voir cate may prove used to guilt, verdict in nullity.” (Emphasis Smith, qualified “ * * * Moreover, prejudice dire. statements show F.Supp. that a ** that a 606(b) * preconceived prejudice juror Such evidence where comments 1287,1290 (W.D.N.Y. participated added.) but because be admissible lied should be dis and that during the notions Tobias can indi brother who him? one. someone “MS. “MR. CARROLL: You “MS. cial or “MR. CARROLL: Have [******] he is K: K: business sitting No, Yeah, as an through I just recognize over there. acquaintance, just relationship a friend. know say you you recognize him I had with him? just a casual through victim’s know so- No, is,” 1979). I just K: know who he “MS. inquiry and similar grand- informant’s Additionally, I see little justification for mother, Juror G: denying the court’s consideration of the *11 * * * testimony of the foreman jury And, about G, “MR. CARROLL: Mrs. do the substance of the information
you anything know about this case ex- had furnished to counsel for cept you have defendant in what heard here in the post-trial interview in order courtroom? to determine “MS. G: “MS. G: No. [*] [*] No, I have seen the father # [*] # [*] difference between an initial determinative the initial fairness and reliability of the two swers women given jurors on initial voir dire. accuracy of the an- I find a but—I him don’t know personally. posture and positions later and discussion adopted during “MR. deliberative you CARROLL: Do session.1 know Mr. Gregorio, you have seen him? Furthermore, a curious dichotomy is for- “MS. IG: have seen him but I don’t mulated by opinion. this The court would personally. know him describe Evans unworthy as of belief as “a that would bear as a “MS. G: I “MR. CARROLL: And is should have asked # fair and No, # I don’t think so.” impartial [*] your you [*] juror? that I have not ability there [*] anything to serve [*] that the state’s witnesses are convicted fel- ons,” in ten embrace convicted felons as reliable witnesses, convicted felon.” Evans State v. (1986), being “the Ross, jury find Because grandson 104 N.M. is entitled to know greater prosecutors of one of the significance of- Again, we are age-old subject faced with the two jurors logical support as for being ignorant dilemma of judges possible knowledge. (1) what persons: we know as juror’s Necessary to the court’s thinking is the grandson anonymously called the Public conception person’s that a past criminal Defender twice with contention of a fixed always status predict serves to the value of (2) jury; trial, after counsel for defendant person’s continuing Oddly actions. interviewed the foreman of the jury, ob- enough, this notion is then abandoned com- taining conjecturally corroborating infor- pletely in Issue ap- IV where this court mation; (3) pure coincidence without proves the exclusion of the decedent’s causative rationale is an anathema to the arrest record when offered the defend- laws of nature. prove pertinent ant to traits of the victim. I would inquiry not confine of the de- If being the status of a convicted felon merely fense scope permitted to the by the deters believability, the officers of Wy- court, trial particularly so since limitation oming Bar Association must be hard- justified is not 606(b), the test of Rule pressed explain successfully report- W.R.E. Exclusion of the substance de- $5,000 price tag ed inviting in the ex-con- liberations jury after the started verbal vict, Liddy, speak G. Gordon at its annu- consideration is considerably more confined al convention.
than was preclusion the examination actu- ally concern, effected. Particularly Recognizing intruding al- that we are not though not clearly record, within 606(b), defined this the strictures of Rule the afforded opportunity general for further exami- area of the exercise of post-trial, nation discretion, “guidelines” were, determine whether ini- in my tial voir dire intentionally interest-of-justice or uninten- analysis, far too con- tionally false. fined. perceive
1. I do not
the current United States
because I find the dissent to
state more ration
Supreme
opinion
second,
Court
position,
Tanner v. United
al and well-reasoned
what
—States,
U.S. —,
107 S.Ct.
97 L.Ed.2d
is tested is not deliberative activities but inconti
decision,
inappo-
a five-to-four
deliberately
response
to be
if
nent
false
to voir-
Wyoming
inquiry,
site for
Constitutional
first
dire examination.
and remand
Because I would reverse
circumstances are insufficient
to reduce
remaining
manslaughter.
retrial on the basis of
issues
crime to
Under
6-2-
anticipate
particular
105(a)(i),
so
,
W.S.1977,
and would
guilty
again
jury,
problem to arise
with a fresh
voluntary manslaughter if he or she unlaw-
expand
my
fully
dissent on this issue will not be
being
kills
human
malice,
without
ed,
except
tampering
express
to note that
implied,
voluntarily, upon a sud-
cases,
inquiry,
allegations
where the
passion.
den heat of
To infer malice then
there,
true,
prove to be
“does not end
how
is to assert that there are no circumstances
ever,
every
because not
incident of
which would allow an inference of volun-
requires
tary
i.e.,
misconduct or bias
a new trial.”
manslaughter,
no sudden heat of
*12
Hendrix,
1225, passion.
United
549 F.2d
States
1229,
818,
58,
434
98
cert. denied
U.S.
S.Ct.
The majority say,
case,
“In
appellant
74,
960,
54 L.Ed.2d
reh. denied 434
98
U.S.
walked
apartment
into his
and loaded his
493,
right
impartial panel.”
to an
Id. at 1227.
screams, loaded his rifle.” While heat of
passion
brought
is often
to mind
ISSUE IV: INSUFFICIENCY OF EVI-
might
kind of emotion a
experi-
husband
DENCE FOR SECOND-DEGREE
in suddenly finding
ence
that his wife has
MURDER CONVICTION
lover,
Saxon,
an additional
State v.
87
majority
affirm that
the evidence
5,
590,
(1913),
Conn. 86 A.
I
594
submit that
justified
second-degree
murder convic-
passion
grip any
sudden heat of
would
man
allowing
tion. After
for the fact that the
suddenly
or woman who
hears a blood-chill-
jury
knowledge
was denied
of the victim’s
ing
one, knowing
scream from a loved
he
(Issue
IV),
arrest record
and that
dangerous
potentially very
she is
expert
denied
the defendant’s
wit-
trouble-provoking
confrontation with a
testimony
might
ness’
of the effect fear
antagonistic individual.
(Issue I),
in impairing judgment
have
legal
passion
definition of heat of
“[T]he
agree
could
testimony
based
on the
incorporate
passions
should
the reactive
given. But the
permitted
information
to be
fully
of fear and terror as
as it includes
specifics
introduced
not all the
aggressive
rage in
passion
order
should
jury. My
have been available to the
recognize
relationship
a close
between
dissent unfolds from the assertion that the
heat-of-passion manslaughter
imper-
proper
evidence was insufficient because
Comment,
fect self-defense.”
Provoked
excluded,
evidence was
not that the infor-
Reason in Men and Women: Heat-of-
mation as it was before the
was insuf-
Manslaughter
Imperfect
Passion
second-degree
ficient for a
murder convic-
Self-Defense, 33 U.C.L.A. L.Rev.
tion.
(1986)!
present
In the
opinion
says:
this court
court,
properly disapproving
This
while
“Malice has been defined as intentional
concept
capacity
of diminished
as an
killing
legal justification
without
or ex-
infringement
legislature,
on the
Dean v.
cuse and under circumstances which are State,
(1983),
Wyo., 668 P.2d
has
insufficient to reduce the crime to man-
authoritatively2
never
discussed the de-
slaughter.”
imperfect
fense of
self-defense when linked
Necessarily, a full
heat-of-passion manslaughter.
examination
the trial
How-
always
fairly
ever,
discussing
court should
be made which
this court came close in
psychological
long-
allows a determination
whether
factors faced
See, however,
State, Wyo.,
dispositive
principles
2.
Best
battered who his father. 33 U.C.L.A. su- State, pra Wyo., 682 P.2d Jahnke v. 1700. says: Since this court “ ‘ * * * may parameters Malice be inferred all legislature set from ” circumstances,’ the other facts or deficiency for mental illness defense State, Leitel v. quoting from Wyo., 7-11-304, W.S.1977. To allow de § P.2d argue capacity
fendant to diminished out limits of conceptual side the 7-11-304 strange § it would seem if malice necessitate a violation of the would consti inferred circumstances, from all the separation powers. tutional demand for passion Yet, heat of cannot. 2, 1, Wyoming Constitution. This
Art. defendant is the opportunity denied de velop fully obtain in allowing not the case which would all the circumstances from development imperfect passion which heat of arising of an self-de from terror inferred, or fear fense, could be legislature since the has not is denied the codified opportunity preclude self-defense, inference and this allows self-de malice. given Where he has not been legislature’s upon fense as unobtrusive opportunity, story kept the whole Mewesv. province. *13 jury and, sense, in that the whole evi 487, (1973). imperfect 488 An self-defense might dence be insufficient to convict self-defense, lies within the of radius as in degree. murder in the second not am this case where the defendant came to the unaware of the posture restrictive de as help wife, “asserting justifica of his fensively applied in enunciation another,” stepped tion of defense of into State, court in Buhrle v. Wyo., P.2d 627 position defended. Leep person (1981), 1374 least peripherally con State, Wyo., v. er 379, (1979). 589 P.2d 383 State, Wyo., tinued in Krucheck v. 702 Perfect self-defense is defined Illinois (1985). P.2d 1267 Unless this is People Brown, 1110, in Ill.App.3d 104 60 adopting a standard that what is not admis 843, 847, 1081, Ill.Dec. 433 N.E.2d 1085 sible for prosecu defense is admissible for (1982), as follows: tion, these two cases in restrictive struc “A justified in is the use of force ture cannot be accommodated to much of against another when and to the extent cases, the current in comparable literature that he reasonably believes that such but more specifically, ignoring even after conduct necessary is to defend vouching-for-the-truthfulness aspect, to 38, Ill.Ann.Stat.1977, 7-1. Ch. what this court now stated in Brown State, supra. today Buhrle is in the obvi imperfect self-defense: Trend, Note, Emerg A minority. ous See “A person intentionally knowing- who or A Survey es: Admissibility State on the ly kills an individual commits voluntary Expert Testimony Concerning the Bat of manslaughter if time killing at the tered Syndrome, Woman 25 373 J.Fam.L. he believes the circumstances to be such (1986). writing, At the time the author that, existed, if they justify would found only three other in states concur * * * exonerate killing but his belief rence, Louisiana, Texas, Ohio and com is 38, unreasonable.” Ill.Ann.Stat. Ch. pared to unconditionally seven where ad 2(b). § 9— missible, conditionally and six where admis State, See also Lambert v. Md.App. 83, 70 L.Rev., Rosen, supra; sible. 33 U.C.L.A. 1340, 1346, A.2d 519 cert. denied 309 Md. Correcting The Excuse of Self-Defense: 605,. (1987). 525 A.2d 1075 The notion of Historical On Accident Bat Behalf of imperfect an self-defense that the actor Kill, tered Women Who 36 Am.U.L.Rev. honestly but unreasonably took the steps 11 Dyas To noted is that the he took. test, Dyas States, D.C.App., v. United 376 “The concept of reasonableness is as A.2d cert. denied U.S. 98 S.Ct. firmly (1977), entrenched in the law self-de- adopted L.Ed.2d fense as it is in of heat-of-passion the law Buhrle is more restrictive than the liberal motivation, our availability test of Rule 702 in Rules Evi particularly ized by ingestion Compare as on another infected dence. considered alcohol.
basis,
Wyo.,
Zespy,
requires only expert’s that the should “aid trier in his search for truth.” specialized knowledge technical or other This would allow defendant fact; opportunity develop imperfect the trier of there is no an assist re- honestly he expert self-defense—that quirement testimony be be- believed necessary actions took were understanding of even yond jury.” though hindsight assessable as unrea- J.Fam.L., supra at 374. psychological
sonable. the nature of reaction, might threat wife or children I: ERROR ISSUE TO EXCLUDE DR. frequently cause more reaction than would MERRELL’S TESTIMONY AS TO threat to one’s self. Protective love THE STATE OF MIND OF THE DE- many pervasive is a more stimulus than FENDANT personal safety. ignore To that mental is a It “well-settled rule law that the quality reject history deny human expert testify witness to the truth- well-established fact. fulness of the victim.” Brown v. judges, ignore As we should what we Urbigkit, lawyers as people, know both and as
J., dissenting, citing United States v. denying expert analysis of the effect of
Azure,
(8th Cir.1986). Equal-
A Focus on Dick.L.Rev. velop imperfect self-defense when that Morawetz, (1986); Reconstructing 1 testimony help acquit, points is used to Significance Criminal an inconsistent treatment this court Defenses: of Justification, 77 J.Crim.Law and Criminol- constitutionally (due which is process) and (1986); Wildman, ogy 277 Donovan and Is logically (fairness) unacceptable. Reasonable Man obsolete? A Critical Perspective on and Provoca- Self-Defense IV: ISSUE ERROR TO EXCLUDE THE tion, Loy.L.A.L.Rev. (1981); 14 Per- PAST ARREST HISTORY OF kins, Re-Examined, 1 U.C.L. Self-Defense THE VICTIM (1953); Dressier, A.L.Rev. 133 Rethinking sought This defendant pursue Heat Passion: A in Search Defense of 404(a)(2), W.R.E., Rationale, Rule Criminality exception perti- 73 J.Crim.Law and — Kelman, (1982); Interpretive nent trait of the introducing Con- decedent— struction in the history place perspec- Substantive Criminal arrest Law, (1981); Note, Stan.L.Rev. tive on defendant’s reaction the context Manslaughter Adequacy and the Prov- perception of his of a threat to his wife. ocation: The Reasonableness the Rea- 404(a)(2) specifically As Rule allows evi- Man, (1958); sonable 106 U.Pa.L.Rev. 1021 pertinent victim, dence of a trait of the Dressier, Thoughts New About the Con- question arises whether evidence of other cept in the Criminal Law: crimes, wrongs, or acts be used to of Justification A Critique Thinking Fletcher’s for establish in this case that (1984); Rethinking, 32 U.C.L.A.L.Rev. 61 pertinent plain language trait. The in Rule Fletcher, The Individualization Excus- 404(b), apply- W.R.E. reveals no barrier in Conditions, ing 47 S.Cal.L.Rev. 1269 ing 404(b) to the decedent as well as (1974); Note, Partially Determined Im- arguing the defendant pertinent trait. perfect The Battered Self-Defense: Wife approach. Several courts take this Why, Kills and Tells 34 Stan.L.Rev. 615 Greschner, States v. United F.2d (7th Cir.1981), the Seventh Circuit engine of this dissent is driven Appeals Court reversed a lower court given expert’s testimony treatment excluding proof of the victim’s “violent given *15 when contrasted to the treatment by application 404, character” of Rule complaining expert witness Brown v. F.R.E., specific exception which creates a State, Brown, supra. expert testimony In pertinent to offer evidence of a character Here, help expert was allowed to convict. trait. As in approved, that case it is in this testimony challenge acquittal to is de- precisely case attempt- what the defendant nied. articulating reasoning, ed. In that State, supra, expert Brown v. court said: testimony complaining was that wit- “ * * * prior The reason that convictions psychological ness took a “test” which disfavored, however, are is not that sexually “showed” she had been abused irrelevant, they may are but that be ex- struggles truthful. cap- One to tremely case, prejudicial. In the instant logic necessary ture the to reveal how this prejudice there was no issue of since [the expert is testimony vouching for the was neither a defendant nor a victim] witness, complaining truthfulness of the 742, 1, witness.” 647 F.2d at n. except that the court said that Smith v. Virginia agree: with which the courts State, supra, 564 P.2d at stood for the Virginia “It expert testify notion that an is well settled in that where “cannot as to the truthfulness of an accused adduces the defendant’s version evidence that he act- self-defense, principle specific and that ed in evidence [of incident]” expert testimony violated. To is allow acts admissible to show the character infringes province violence, on the of the victim for turbulence and
even if the accused is unaware of such the victim is admitted help convict, to Commonwealth, Jordan character.” Brown v. supra, despite the enor- 852, 323, 219 Va. 252 S.E.2d presence mous prejudice, but evidence of an arrest record of the deceased is exclud- Basque, State also See Hawaii possible ed on the prejudice. basis (1983): One 666 P.2d “ * * * help cannot but be strange confronted a general treated character [W]e attempt vacuum when an is made to artic- specific prior (including evidence and acts logic necessary ulate the to accommodate those reflected in the victim’s criminal such different results. record) purposes the same for of corrobo- rating a defendant’s self-defense claim as The court makes note that the victim’s aggressor.” to was the who began age arrest record 13. Presum- reasoning The concludes: ably, such tangential an alert is to the issue “ ‘ * * * of the deceased’s violent of pertinent [P]roof remoteness. A trait not ex- and turbulent character in this situation through tended time reliably cannot is circumstantial evidence the likeli- question called a trait. The then for this ” being aggressor.’ hood of his Id. is, point pertinent at what does the 602, quoting from State v. 666 P.2d at trait acknowledged pertinent become
Lui, 61 Hawaii yet not remote? Remoteness have argument little force on an concern- ing pertinent trait. it Where does have majority’s analysis The orbit fails force, analysis necessary give some to encompass argument. the defendant’s place argument that force some introduce, during The defendant wished rigorous pertinent trial, must be more than this trait evidence of a court has introducing provided. past victim the victim’s ar- history. majority rest discusses how majority also ascribe that one 404(b) quite Rule subversively often used violence, arrest concerned which occurred prosecutors both and defendants desk, police booking defining at a before against victims to establish that the the exclusion of the arrest record to conformity acted in with his or her charac- proper. have been Occasioned a set of agree fully ter. I of an absence case, circumstances not dissimilar to this a prove pertinent trait, offer to it is indeed a arguing sought defendant self-defense 404(a) subversion of Rule to use adverse prior introduce conviction of victim character evidence for substantive-fact evi- battery upon police for assault and offi- dence. This subversion seen most clear- Court, Pennsylvania Supreme cer. The ly 404(b) exception when a Rule is allowed dismissing argument prosecu- 404(a). eclipse precisely It is tion, said: argued against subversion where motive prosecution argues punching “The State, supra, eclipsed propensity, Brown v. police police presents officer in a station pertinent when no mention of trait was entirely a ‘less serious’ and sit- different yet made and willingly this court allowed *16 uation than the one at issue here. When evidence, propensity thinly mo- veiled as prior conviction is for assault and tive, where that evidence con- was used to battery, compare there is no need to vict. attempted This defendant to demon- Any is A facts. difference irrelevant. pertinent strate inappropri- trait and was battery conviction for and neces- assault ately opportunity denied that on the basis sarily involving implies ag- a character prevent 404(b) of a need to Rule abuse. gressive propensities.” Commonwealth 404(a)(2) subject While Rule is to a Rule Beck, 475, v. 1371, 485 Pa. 402 A.2d 403, prejudice balancing, W.R.E. Rule 404(b) fairly cannot stand a barrier 404(a)(2). Our court concedes:
Apprehended alleged “Arguably, pieces that evidence of the bits and of the past might support sexual appellant’s theory abuse with someone other than record aggressor.” get fight,” gives
that the victim was the into a some substance added.) (Emphasis conjecture parking place that chosen deliberately after first incident was ar- Yes, they might. point That is the issue. Nothing disproves a Braley story ranged provoca- in the an fair likelihood with aggressive characterization of decedent. tion. Greschner, supra, In United States While admission of “the evidence is with- 741, F.2d at the court said: in the sound discretion of the court trial * * * “ line of ‘violent character’ [T]he and a clear absent abuse of will discretion proof is relevant to the defendant’s theo- State, disturbed,” Taylor of self-defense that it makes his ry 1294, par- and “[t]hat the victim attacked him version ty ruling must establish that ” probable.’ ‘more trial erroneous and it did defendant, the and For this offered refused rights party,” affect substantial evidence of the decedent was character State, supra, Jahnke v. 1005, 682 P.2d at equally relevant. facing problem, the same the federal predictive granted to Mi- value Given Greschner, court in United States v. su- during Evans’ status as a criminal chael pra, has said issue, appellant’s jury-tampering why then “ * * * The trial improper court’s exclu- criminal record of of 13 decedent sion of the character and motive evidence offenses, whether or not act or matured seriously prejudicial theory. to that felony, singu- accident to the level of Therefore, improper evidentiary rul- significant? larly Specifically, we would ings require reversal of the defendant’s 1976, shoplifting; find included in assault conviction and a new trial.” 647 removing of property, disturbance tires F.2d at 743. car; 1977, appear from failure to citation; 1977, disturbance, yelling
traffic I conclude process cannot that due and cussing, property and refused to leave constitutionally procedural- fairness as owner; request by 1978, drinking and driv- ly required unapprovable to avoid prej- trial ing, “extremely belligerent and threaten- udice to defendant will be found or does ing,” language, obscene made threats exist from denial to the com- against arresting officer; family plete story victim’s arrest prop- disturbance and destruction rejection record and evidence of of defend- officer, erty, against attempt- made threats expert-witness testimony. Viewing ant’s physical ed booking, assault on officer at improvident this trial-evidence denial as an including kicking and use of obscene lan- discretion, abuse of would reverse guage; 1979, drinking driving; 1980, conviction and remand for retrial. prowl; 1980, open car in automo- container bile; 1981, driving; 1983, drinking and
drinking driving; drinking driving, Then, uncooperative.
this event occurred drink- which involved
ing, driving, parking and the disturbance.
Unfortunately, it was final.4 scene,
The course of events at the de- hour, nearly gives
tailed have lasted pause
no for the characterization hero- by any participants. recog-
ism
nition of the friend of the decedent that the Braleys going to we’re
“[when return] “victim," wives, families, and, opinion speaks 4. The including insig- court’s society, Unfortunately, this dissent of "decedent." nificantly, Wyoming taxpayer. fatality many, victims in these are assault cases