Goodman v. State

178 in conflict with this acts parts of hereunder, adopted

or with rule GOODMAN, Appellant E. Charles * * * hereby repealed.’ Although we (Defendant), not, language will of have held that such itself, repeal by implication constitute a Wyoming, Appellee The STATE of omitted], the use of this lan- [citations (Plaintiff). guage legislature is clear evidence prior legislation of its intent that on the No. 5091. subject superseded same and is added ” Supreme Wyoming. Court of indicia of such effect. of Wyo. The enactment Ch. S.L. of Oct. 5-2-118, W.S.1977) (predecessor to § 9, 1979. Nov. Rehearing Denied bar, authorizing integrated coupled power with the inherent of the court law, practice

control the admissions to California,

Brydonjack v. State Bar (1929); Day,

Cal. 281 P. 1018 In Re (1899), impliedly repeal

Ill. 54 N.E. 646 33-5-105, portion W.S.1977 rela- requirement citizenship.

tive to the Rules Supreme

Rule 5 of the Court requirement

does not contain the of citizen-

ship qualification as a for examination and require

admission to the bar. It does application

statement for admission “showing

of facts that he is a citizen of the

United States.” Relator was allowed to

take the bar examination. has She stated born;

that she was Canadian that she mar-

ried August an American citizen in immediately began procedures she permanent status,

obtain pre- residence

requisite obtaining such citizenship;

she intends to become a citizen and will be

eligible for such in and that she has a

child who is a graduated citizen. from She

the University Wyoming. She was al-

lowed take the bar examination and suc-

cessfully passed.

For the aforesaid reasons she should be

permitted to take attorney the oath as an

the bar of this state. signed

Gary Shockey, Casper, L. the brief appeared in oral on behalf of appellant. Gen., Troughton, Atty. John D. Gerald A. Stack, Gen., K. Deputy Atty. and Sandra Clerk, Dunn, signed Law the brief on behalf Wolfe, appellee. senior law Lawrence J. intern, legal appeared in oral student argument on its behalf. RAPER, J., years shooting before the

Before C. and McCLIN- involved in this THOMAS, TOCK, ROONEY, ROSE and JJ. revealed that case. That cross-examination in June of 1967 had involved RAPER, Justice. Chief wounding girl friend at appellant-defendant challenges his police which time he took her to the station manslaughter conviction for under 6-4—§ in order to obtain medical assistance. 107, W.S.1977, claiming: (1) the trial court trial, appeal, At and in this the State admitting prior erred in evidence of a un- asserts that the incident admissible appel- incident which involved the 404(b), der Rule W.R.E.: lant; (2) appellant placed twice “(b) crimes, wrongs, or acts. Evi- Other jeopardy being punished because he is twice crimes, wrongs, dence of other or acts is act; (3) for the same the district court erred prove not admissible to the character of a refusing appellant’s instructions on the person in order to show that he acted in grades manslaughter and the relation- however, conformity may, therewith. It ship of that crime to the defenses of self-de- purposes, be admissible for other such as accident; (4) fense and the district * * * * * * intent, proof of court erred in granting a mistrial when knowledge, or absence of mis- prosecutor closing mentioned in his ar- take or accident." gument appellant residing had been presented The State the evidence on the penitentiary. theory appel- it tended to We will affirm. the circumstances of this lant’s intent under

The facts of this case are well set out in case and refuted his claim of accident be- State, Wyo.1977, Goodman v. cause, 573 P.2d 400. nearly when he was confronted opinion In that appel- this court reversed the same set of circumstances on the earlier degree occasion, assistance, lant’s conviction for police first murder he called and remanded the matter for a new trial. he whereas here did not. Appellant’s killing conviction for an unborn Appellant the evidence asserts that by child assault on the mother was af- 404(b), was not admissible under Rule beginning firmed. A new trial was held purpose W.R.E. because its sole was to dem September 18, 1978, 29, September and on appellant’s onstrate the character. Fur 1978, jury returned finding a verdict ther, appellant 403, asserts that under Rule the appellant guilty manslaughter. The prejudicial W.R.E.1 the nature of testi only new factor introduced in the second mony outweighed probative its value and trial which is significance here is that the therefore should not admitted State introduced evidence of a 1967 incident if even it was admissible as relevant under wherein girl also shot a friend. 404(b). one of Rule exceptions argument presented by appellant appears asserts that the trial court committed by allowing 404(b), reversible error the misapprehend scope of Rule He prosecution question appellant being concern- seems to view that rule as somehow ing an incident eight by which occurred some delimited W.R.E.2 The evi- 1. Rule W.R.E.: admitted if elicited from him or established by public during record cross-examination “Although relevant, evidence be exclud- (1) punishable by but if the crime probative substantially if ed its value is out- year imprisonment in death or excess of one weighed by danger prejudice, of unfair convicted, which he was issues, under the law under misleading confusion of the jury, and the court determines delay, considerations of undue - admitting outweighs time, this evidence value presentation waste of or needless defendant, (2) its effect to the cumulative evidence.” statement, dishonesty involved gardless or false re- pertinent portion 2. The of Rule W.R.E.: punishment. “(a) “(b) purpose General Time limit. Evidence of a conviction rule. For the of attack- ing witness, credibility period under this rule is not evidence that admissible if a (10) years elapsed he has been shall be more than ten convicted of a crime has since obviously previous dence was not of the sort contem- important incident. An plated by Rule 609 since it was3 not a of the trial court’s to admit decision such However, conviction at all. the matter evidence will spe- be based on whether the raised was evidence of cific issue to which the evidence is directed an “act.” A act of the accused need actually being contested. 2 Weinstein’s not be criminal in character in order to be Evidence, 404[08], (1978). ¶ p. 404-44 Here 404(b). purposes relevant for of Rule Unit- very the evidence was well focused Senak, ed States 7th Cir. 527 F.2d major placed issue that was before the 129, 143, cert. den. 425 U.S. S.Ct. jury. prior experience demonstrated 1500, 47 L.Ed.2d Louisell and Muel- knew what yet to do and he ler, Evidence, (1978). Federal p. 121 failed previously to do what he had done. To the extent the “act” involved here had As a matter of common sense and human undertones of criminality, those did not af- nature, does not leave an accident fect its relevancy but rather were to be injured making victim dead or without a determining considered in preju- whether report calling or for assistance.5 It follows dice outweighed probative Many value. person experi- that where a has first-hand shootings are not criminal. past ence with such a situation and We consider the to have been evidence qualities demonstrated those of common relevant4 the element of intent which sense, described, decency human nature and obliged prove State in order to report the failure to to authorities or other- establish murder. The claimed wise render aid or assistance carries with it shooting was an accident. Under the possible wrongdoing a inference of rather circumstances of this “accident” appel- along than innocence to be included with all gathered up dog lant his and the rifle which surrounding the facts and circumstances wound, inflicted the fatal drove around the occurrence. checks, Casper cashing large and made no probative appellant’s The evidence was report Indeed, whatever to authorities. it intent at the shooting place. time the took could be readily inferred from his behavior addition, appellant’s it served to rebut that he eight years intended flee. Yet claim of accident. Evidence such as that previous, when very confronted with a simi- presented commonly just here is used for shooting, lar appellant promptly reported Mueller, purposes. those In 2 Louisell and proper matter to the authorities and Evidence, pp. Federal it is 126— sought aid for the accident victim. We said: competent consider this to be evidence from “3. Intent. jury properly which a could infer that accident, ‘merely latter was not loosely an other- “Sometimes defined accident,’ reported wise he would have it he did intent in crimi- the absence guidance, go the date of the of the conviction or release of some but we would not so far as imposed weighed the witness from the confinement hold that Rule 609 must be con- conviction, for date, 404(b). whichever is the later junction with Rule 2 Weinstein’s Evi- determines, dence, unless the court in the in- 404[09], (1978). p. ¶ 404—48 justice, terests of value of supported specific the conviction facts 4. W.R.E.: substantially outweighs and circumstances “ having evidence ‘Relevant evidence’ means However, its effect. evidence of a any tendency to make the existence of (10) years conviction more than ten old as consequence is of to the determina- fact that herein, calculated is not unless the admissible prob- probable tion of the action more or less proponent gives party to the adverse suffi- than it would be able without the evidence.” cient advance written notice of intent to use provide party such evidence to the adverse inconsequential We view as opportunity with a fair to contest the use of dead, here while knew the accident victim was such evidence.” accident, was alive earlier the victim suggests 3.One commentator a court should sought help when he authorities. Normal from exercising consider Rule 609 when his discre- decency his attention. human demanded 404(b). may provide tion under Rule Rule 609 in connec- concept principally and distinct element of the often an nal cases involving dealings in sto- crimes crime, clearly encompasses tion which charged im- transportation or illegal particular property, len to achieve the desire both contraband, the ut- or knowledge portation that such an end of aliens end and act; forged instruments passing result of an terance is the almost-certain specific passing more of counterfeit many possession or doubt intent has also upon the context seems Prior crimes evidence meanings, depending notes. charged. again of the crime and the definition received time accused, including other cases. acts in narcotics ‘knowledge Other or intent’ crimes, prove intent knowledge received to may be been received on It has theory Like on the common-sense cases. variety in a of other issue particular in a often a acts intent, thought more to be knowledge is often result, particular mistake, way and achieves ac- negation, opposite, intended the likely it is that he more cident, innocent involvement or a claimed lumped together ‘Intent’ is often result. prior crimes in criminal acts. Sometimes usually intent ‘knowledge,’ although knowledge, evidence bears something more than knowl- signifies it veracity, and but defendant’s well as cases approving, as edge. Cases by contradiction impeach in to come receipt crimes disapproving, of lack assertion defendant’s testimonial are collected in to show intent evidence knowledge concerning elements probative, margin. truly To be Wigmore charged against him. crime to the prior must be similar crimes [acts] prior acts to relevance of up summed the (Emphasis charged.” and bracket- crime ‘The other act prove knowledge thus: omitted.) ed added and footnotes material in some sort have resulted probably will Evidence, warning also, 404[09], warning knowledge; ¶ this 2 Weinstein’s of See language paraphrase To have led to p. knowledge probably 404—50. must bring meaning its full to quoted question.’ above and There knowledge us, prior now before it would be bear in the case reversals where been occasional that, expe- often a has said the more to has been received crimes evidence and react- given type rienced a of situation Muel- knowledge.” 2 Louisell and manner, likely the more Practice, 140, ed in a reasonable ler, pp. 133-137 Federal § Evidence, reaction connotes it is that an unreasonable (1978); see 2 Weinstein’s knowledge. guilty some intent 404[09], pp. ¶ 404-51 to 404-53. for which such evidence purpose Another appellant had a here showed The evidence appropriate is is: circumstances of unique knowledge of the Knowledge. “5. “ failed to shootings. That he accidental his claim intent, knowledge belied knowl- make use of his distinguished ‘As from poses a Although this case Though of accident. edge signifies an awareness.’ circumstances to along intent set of factual frequently mentioned distinctive parallels, we has it is difficult draw where crimes evidence which in cases following to shed some received, cases knowledge connotes some- consider v. bar.6 Halliburton less, separate light on the case at thing important and is as a analyzing they analysis primarily the facts were of assistance 6. Our is one that focuses commentator, singular one upon this case. As stated bar. We of facts of the case at “ question parties of when point” evidence “in nor were cited case may particular criminal act be admitted is so did we find one in our own search. In most perplexing as previous sought that the cases sometimes seem cases examined the acts to be criminal, of the sea’ and often numerous ‘as the sands were whereas introduced evidence Evidence, demonstrating 2 previous be reconciled.” Weinstein’s cannot here the act was one (1978). ¶404[08], p. pattern We are likewise 404-40 crime. innocence and not within a of precise past but trust to verbalize a formula its unable Because of the innocence of the approach the admission admissibility questionable. a The cited common-sense less is 7, infra.) (See directly point, obviously of fn. but such evidence. cases are not

183 appellant’s had to rebut claim State, Tex.Cr.App.1975, 528 S.W.2d State of acci- Vail, 1973, Mich.App. People v. peculiar 212 crack in the armor of dent and this (reversed grounds, on other N.W.2d his defense —was fair appellant’s past —and Vail, People v. 393 Mich. game for once Woods, United States 535); 4th Mueller, N.W.2d took the stand. 2 Louisell and generally, and see Cir. 484 F.2d Practice, The pp. 116-117. Federal Law, Key Digest System, Criminal West’s two occurrences are so similar and the for- 369.2(4), 369.3, 371(4). Numbers mer so inconsistent with his behavior relevance was clear. This latter that its of the evidence was probative The value value did suggest all to that And the need adequately demonstrated. of outweigh the obvious effect apparent. for evidence is also such evidence, previous since the particularly circumstantial rely solely had to State a purity of motive that degree prose- first murder act was of such evidence in this to indict. We are proof heavy grand jury was a refused cution. Their burden level of an it can rise to the theory defended on the convinced one. to have accident, judge’s were the trial discretion and he and the victim abuse of 2 Louisell present ones at the crime scene. admitted such evidence.7 problems proposed following approach: all of the will not solve 7. We commend the area, confronting but it indicate, an accused this foregoing should “As the discussion bring substantially virtually impossible precise him closer to Cardo- will it guidelines to draw concerning admissibility evi- before the bar zo’s ideal that the defendant anew; justice other crimes dence of Generalizations more [acts]. start life it will lend solidity appearance of presumption have an initial but meaning to the of innocence analysis. on close Details of other crumble cases, statistically something ap- now reduced though suggestive possible tech- cliche, proaching and it will render more a very helpful niques advocacy, are not currently unique lip but than service to precedents the same combination of since privilege policies undergirding significant unlikely to recur. In the final anal- factors is analytical [against ar- self-incrimination] admissibility ysis, depend individ- will on the latter, guments cast aside. As to cannot justification judge’s ual evaluation of plays part, well be true and it tradition protect appropriate the rule as an device step privilege expresses in sug- persons. Adoption of Rule accused English language that the toward civilization policy gests that the should be embraced preci- well-equipped not to describe with is by prosecutors judges; good and the faith sion. by showing prejudice of overbalanced onus recognize “Appellate trial that ‘The courts good prose- rest on the need and faith should judge to determine must have wide discretion connection, cutor. In this the conclusion of the evidence the value whether containing analysis a detailed recent article by prejudicial outweighed character.’ its is dealing is of cases with other crimes evidence prepared parties to con- must be Thus the considering: well-worth judge time the evidence vince the trial at the “First, practical as a matter there would probably be Since both sides will exceptions is offered. hope seem to be little that the possibility issue will exclusionary pre- the aware of the arise, rule will be either more the they cisely they adequately briefed before defined than are now or that it should be * * * Second, important judge it has than will be abandoned. More must rule. dynamite suggested kind this of a brief is the detailed lists of cases in such might scope well outside the normal broad why proof lie analysis of the facts to show proposed judicial discretion. What is here needed, may why be use of other crimes is its admittedly hopefully compromise, is but compromise and how some suggested It that such evi- workable one. Holding parties. protect both limitation be inadmissible unless it can dence ruled appeal dangerous arguments back for the by prosecution that it is essential shown Moreover, considering unsound. proof al- an element of the crime to the might Appellate Court well take matter and, legedly deed, in- committed the accused presented as it was account the situation into merely that its use in this sense not be judge, more fine rather than the the trial necessity has been cumulative. This rule of adopted (Em- presented appeal.” analysis spun or hinted at before the authorities. added.) 2 phasis material and bracketed judicial degree admittedly It discretion, involves some Evidence, 404[10], pp. 404-73 Weinstein’s II degree than but a much narrower to 404-74. heretofore, gener- employed has been The rule al rule will be one of exclusion. Indeed, ap- Evidence, quested by appellant’s counsel. Mueller, pp. 10-15. § Federal limiting instruction. want a jury, previous epi- pellant did not presented As to the this appellant could sensational, this was because shocking, emo- In sode was not give instruction to appropriate hostility, sympathy think of tional or evocative Mueller, not exacerbate the jury that would 2 Louisell and to the punitive impulses, general rule must be As a there Evidence, pp. 16-35. It was situation.8 Federal § given request- if it is limiting not indicted for a instruction clear State, ed, Wyo.1979, 592 P.2d following past incident. The Channel v. crime suggested by accepted W.R.E. It is Rule State’s cross-examination certain circum- authorities that under incident was an accident and there some earlier given should be contrary. stances such an instruction suggestion was no made to the Muel- arising requested. if not 2 Louisell and only suggestion from the cross- even Evidence, ler, p. 100. How- closing argument was that Federal examination and ever, presented circumstances appellant’s actions at the earlier inci- under open to of acci- where the trial court was dent were consistent a claim here they giving dent and that were not in the case at such an instruction prosecutor proffer request one and did bar. We cannot condemn a refused to blamelessness, instruction, we eliciting past acts of under not want such an decline question whether the the circumstances of this case. The “other further address the * * * give without a acts” were evidence admissible to failure to an instruction request absence of accident” would be reversible error under “an 404(b), language within the exact of Rule same or similar circumstances. W.R.E. coun- During oral defendant’s applicability of Kwallek sel entreated previous Appellant asserts that recently Wyo.1979, 596 P.2d shooting incident too remote. Under case dealt with by this court. That decided agree. we not the circumstances do past con- admissibility of evidence lesson to be learned from such an accidental 404(a), dealing Rule W.R.E. duct under shooting is one which common sense tells us per- us character traits. The case before easily forgotten certainly is not — 404(b), applicability tains to the of Rule Moreover, only eight years. questions con acts, dealing applicability of other with the cerning remoteness of evidence are left to 404(b) disprove accident. While was dis- the sound discretion of the trial court and Kwallek, applica- that case has no cussed in subject challenge and disturbance bility here. State, Wyo. for clear abuse. Peterson v. 144, 154. No time limit is set no error in summary, there was 404(b) preclude which would evi testimony about earlier admitting dence other act here admitted. For shooting incident under the distinctive cir the reasons outlined above we do not see of this case. cumstances any abuse of discretion. Appellant claims that he has been limiting the same act.9 placed jeopardy this case no instruction twice in for respect challenged testimony urges merger to the there is a of the of He that manslaughter10 killing an past given conduct was and none was re- offenses of and 6-4-107, apparent 8. The did not ask for 10.Section W.S.1977: reason judgment unlawfully any being an instruction is that in his cal reasons he for tacti- “Whoever kills human thought disadvantageous malice, implied, it expressed either without voluntarily, upon or testimony. draw additional attention to this passion, a sudden heat of involuntarily, or but in the commission act, by any culpable ne- some unlawful or Wyoming provisions are: 9. The constitutional carelessness, glect guilty is or criminal I; Constitution, Constitution, 11, 6 Art. United States §§ and imprisoned manslaughter, and shall be 14. Amendments 5 and (20) twenty penitentiary not more than years.”

185 by ally, battery upon Digest System, Law, unborn child assault and a West’s Criminal woman,11 may and pregnant Key 195(1). that he not be Number punished for twice the same offense. His We hold that 6-4-107 and § position is because sentence had al 6-4-507, W.S.1977, are statutes which are imposed ready killing for the separate and distinct and are intended to child, punishment may unborn another not suppress evils. different The elements of imposed manslaughter. now be for If the the former considerably are different from charged separate offenses and distinct elements of latter. A defendant respect statutory definition, either with may prosecuted be both for act of kill they grow or because out of different trans ing an during unborn child an assault and actions and different evidence needed to battery on pregnant a woman for the and each, the constitutional inhibition battery assault on pregnant and woman against jeopardy applicable double is not (or, here, killing) violating her without and, so long charged offenses are not against the rule jeopardy. double It is not inconsistent, factually may a defendant impermissible to have serve sen found guilty judgment and sentence tences both the killing for of the unborn entered may thereon be had as to each of killing child and the of Donna Poole. The charged. State, offenses v. Jackson killing of the unborn a child was crime 1359; Wyo.1974, 1356, P.2d 522 Goldsmith against killing that unborn child and the Wyo.1970, 813, v. Cheney, 468 P.2d 815. against Donna Poole a crime her. Peo Two or more distinct offenses emanate 1978, Apodaca, 479, ple v. 76 Cal.App.3d 142 from the same transaction or and the 840; 830, Shaw, Cal.Rptr. Fla.App. State v. put rule person that a cannot be twice in 1969, 49, general 219 50-51. a So.2d As jeopardy for the same has appli offense proposition, few exceptions, crimes separate cation two where and distinct against many there are as of crimes are committed one and the same though fenses as individuals affected aris Hairston, 1970, act. People 348, v. 46 Ill.2d ing Vigil out of one act. v. 840, 847, 263 N.E.2d cert. den. 402 U.S. Wyo.1977, 1344. Appellant 563 P.2d S.Ct. L.Ed.2d Where two placed not jeopardy twice same statutes are suppress intended to different offense. evils, acquittal conviction one will prosecution not prevent protests that the district court other. State, 1971, Decker v. erred in refusing 251 Ark. collection of six instruc- Ahuna, 1970, S.W.2d respect State 52 tions with to the crime of man- Haw. see gener- slaughter.12 (This pro- statute was revised in 1979 after the R “INSTRUCTION ceedings close.) in this case to a had come you may ARE “YOU INSTRUCTED voluntary convict slaughter, the Defendant of man- and until unless 6-4-507, 11. Section W.S.1977: proves beyond a reasonable doubt child, unlawfully “Whoever kills an unborn death of the deceased was the result of the prema- miscarriage, causes a abortion acting (1) voluntarily, (2) Defendant upon fetus, expulsion ture of a assault or passion. a sudden heat of battery willfully assault and committed “In order to find that the Defendant acted woman, condition, pregnant knowing her voluntarily, you must find that the Defendant guilty felony imprisoned and shall be purposely, design, through acted with a penitentiary (14) not more fourteen than is, you free will. exercise of That must find years.” intentionally the Defendant acted and design. “ only passion’, used in 12. Of ‘Heat of as the term is our these refused instructions refus law, “R”, “T”, naturally objected passion als would of and “AA” were to so means such ordinarily only rea- those be aroused in the mind of an are the ones included this foot average disposition in the note which we will The others were sonable of consider. preserved as those in not Wyo.1977, for v. same or similar circumstances question, review. Montez Bruner, 1958, him cause to act State v. and such as would deliberation, rashly, Wyo. reflection and 319 P.2d 863. without doubt, yond a Defendant reasonable juris our criminal an axiom of

It is manslaughter. of standing that when the cannot convicted long be prudence of instruction, even if principles requested aof

correct, properly sufficiently and instructions, is its refusal by

covered other 9NO. “INSTRUCTION State, Wyo.1977, not error. Cullin “YOU ARE that criminal INSTRUCTED given by instructions P.2d 453. The attach to all kill- responsibility does not the exact same court covered district being. instanc- ings of some a human slightly only ground different and es, killings are excusable. One such such manner: slightly abbreviated of the death a human instance is where “INSTRUCTION u * ^{[*] [*]} NO. 8 “An being understood, ‘accident’, is the result is an occurrence which as the term of accident. is commonly is not accidental, killing is then guilty of intended. If a you “If the Defendant not find nec- of intention is degree, in the second essential element the crime of murder the essential ele- your duty essarily further If it then be excluded. would excluded, determine, is ment to kill of intention consider guilty be found of mur- defendant cannot guilty “3. the Defendant is or Whether of degree, or murder der the first manslaughter. not of the crime of guilty degree, voluntary or of man- second is defined as the unlawful Manslaughter slaughter. being, it killing of a human unless not, however, malice, “An does excuse excusable, volun- accident without either responsibility for man- heat defendant of tarily, upon passion, a sudden of or slaughter from if the accident resulted involuntarily, by any culpable neglect or act of some unlawful every one commission criminal carelessness. Unless defendant, voluntary that the accident result- manslaugh- of or the elements culpable neglect or involuntary manslaughter ter ed from his criminal or present proved in the evidence and be- carelessness.” one, judgment. “In a as this where the de- passion case such rather than from and from standard, reason- you fense that the Defendant had asserts apply proper ask should

To grounds ordinarily that another will un- able lawfully to believe or not whether answer him, anticipated placed and that person, attack if in a same reaosnable [sic] attack be of such character as to endan- position him- will the Defendant found in which limb, ger self, knowing to cause then his life or or him serious what the Defendant if harm, bodily you knew, instructed the De- thrown a heat of have been into would guilty culpable negli- passion.” of fendant would not gence, above, you if he T find that “INSTRUCTION as defined you attempted that involuntary had to disarm his assailant for ARE INSTRUCTED “YOU purpose resisting of man- Defendant It is for convict the such attack. slaughter, prosecution you unless and until the whether had determine the Defendant proves beyond grounds.” a reasonable doubt that the such reasonable the deceased was the result of the death of AA “INSTRUCTION unlawful or rea- commission of some accident “YOU ARE INSTRUCTED an culpable neglect or son of the Defendant’s liability for also the accused from excuses ‘culpable The terms criminal carelessness. prose- manslaughter involuntary unless the having neglect’ carelessness’ and ‘Criminal doubt, beyond proves, a reasonable cution eyes meaning in the the law. the same from the commis- that the accident resulted require These terms by the act Defendant sion of some unlawful ordinary negligence. The more than much prosecution culpa- or resulted from the that the accident beyond prove, a reasonable must neglect ble carelessness of the or criminal doubt, were of the Defendant that the actions find, beyond you a reasona- accused. Unless character, flagrant gross such recklessness, or doubt, ble acted unlawful- that the defendant would show wantonness ly culpable neglect care- or criminal disregard human a reckless would evince lessness, you him not should also find then others, safety life of indifference or the manslaughter.” guilty involuntary equivalent consequences, crimi- that is nal intent. “INSTRUCTION NO. 10 “INSTRUCTION NO. 17 “YOU ARE that the tak- INSTRUCTED “YOU ARE INSTRUCTED that the de- accident, ing of a human life misad- fendant, although obligation under no to venture, misfortune, per- while in the so, present do right theory has the to his act, exercising formance of a lawful jury. of the case to the care, intent, without harmful due theory “The of this defendant’s involves excusable, but all such facts must concur accident and lack of intention on the any one of and the absence them will relating of the defendant. The law guilt. The homicide must involve this theory fully is set forth more in other been committed while the accused was instructions.” engaged doing in a lawful means, ordinary lawful and reasona- care, any

ble and without unlawful or “INSTRUCTION NO. intent, harmful for taking order “YOU ARE that it is law- INSTRUCTED a human life to be excused as an acci- person being ful for a who is assaulted to dent.” he defend himself from attack if has rea- grounds believing sonable and does “INSTRUCTION NO. 11 bodily injury believe that is about to be doing inflicted so he him. “YOU ARE INSTRUCTED that which he believes use all force and means culpable neglect terms and criminal care- appear would necessary to be and which synonymous lessness are and mean the care, person, to a reasonable in the same or any failure to exercise or the exer- circumstances, justified necessary cise to be you of so little care that similar appears believing person prevent injury whose which to be con- wholly duct is involved was indifferent imminent.” consequences of his conduct and to complete These instructions are correct and the welfare of others.” pertinent in their law. statement them,

Nothing is omitted from con- whatever, sequence “INSTRUCTION NO. that is contained in the instructions, the appellant’s proposed refus- passion “The heat of will which reduce objected by appellant als of which were manslaughter the homicide to must be manner so as to raise issues acceptable in an passion naturally such a would respect their refusal. aroused in ordinarily the mind of an rea- person sonable in the same circumstances. the district Appellant asserts permitted up granting A defendant is not to set his in not a mistrial when court erred justify prosecution, closing own standard of conduct and to made passions excuse himself his were comment to the effect because “ * * * residing penitentiary: af- aroused unless the circumstances which in the now, placed years sitting peniten- he and the facts that con- ter three tiary sitting waiting fronted him were for this trial such also would have * * passion ordinarily objection aroused the made no at rea- Instead, sonable man with the time was made. faced same situa- the statement not, inquiry tion. The basic is whether or he a mistrial in chambers follow- moved for killing, ing argument. at the time of the the reason of the close of the Ob- State’s by jection the accused was obscured or disturbed be made at the time of al- should passion legedly prejudicial to such an extent as would cause comments so that ordinarily opportunity court will have an to take reasonable of aver- trial State, Wyo. age disposition rashly to act and without corrective action. Oldham v. reflection, Wyo. deliberation and and from such 534 P.2d Bennett v. passion judgment.” Digest System, rather than from West’s 188 himself on direct examination defendant 728(3). Law, In Key Number

Criminal residing in the Natrona was to ad- chambers, judge offered the district Thus, the confinement of the Jail. County disregard the statement. jury monish jury at already before was defendant want such an counsel did Appellant’s prosecu- instance. The own the defendant’s given. Obvi- so none was admonition and confer- the in-chambers pointed out at tor did not want appellant’s counsel ously immediately matter that he ence on this the statement. more attention to to attract and made away from the comment backed remarks State’s at Whether Prejudicial error other mention of it. improper torney in criminal matters prosecutor will argument by the because of discretion of the in the sound largely rests of bad faith in the absence not be assumed State, Wyo.1974, 528 v. Boyd trial court. State, Dickey supra. v. Under part. on his 871, 287, 423 96 S.Ct. P.2d cert. den. U.S. here, was no circumstances there all the 102; State, 137, Wyo. v. Dickey L.Ed.2d 46 comment. error in the prejudicial 1968, no au 444 cites P.2d Affirmed. passing that such a thority to the effect be, might comment, as it is so ill-advised Justice, whom ROSE, dissenting, with be cured short of prejudicial that it cannot Justice, McCLINTOCK, joins. or a reversal for mistrial in the trial court a admissibility pri- of the discussing the In Driver, 1978, See, People v. trial here. new appellant, shooting incident 657, 381, 17 376 N.E.2d Ill.App.3d Ill.Dec. 60 admissibility under majority analyzes the 803, (where prosecutor referred to 806-807 404(b), W.R.E. 403 and both Rules so “jailbird,” as not considered defendant 404(b) reversal). require majority More first addresses as to prior a and over, argues remand for a new trial the evidence of reversal and to show shooting misconduct will not was admissible prosecutorial unrelated because shooting lack of mistake in the punishment prosecutor’s for a intent and be ordered as subject appeal. of this misdeeds which is the misdeeds but because such State, experience of the Wyo.1978, deny a fair trial Jones v. killed, incident, gave a was We also note that in which 580 P.2d 1150.13 thorough knowledge of prosecutor above-board fair accidental- tongue obviously supposed one is to do after throughout this trial. His what majori- shooting someone. From this the up ly tried to cover it as best he slipped and he flight appellant’s after ty from the record. He reasons that could as can be seen expertise shooting, despite his convincingly that the second argued strenuously and do after an accidental shoot- and that he about what to the comment was inadvertent respect of accident with ing, it off belies his claim perceive prejudice did not slid causes the the second and thus tongue, it was established his since 1128, 1978, telle, State, Wyo.1978, 1131. See 5th Cir. 568 F.2d v. 586 P.2d 13. In Peterson Colbert, 1977, 144, 155-156, also, Wash.App. 17 State v. this court said: “ 658, 1182, Guffey, * * * State v. 564 P.2d general proposition, As ‘ * 1970, 9, 254, 268; * * Opie 205 Kan. 468 P.2d v. trial, fair we understand [a] 647, Meacham, D.Wyo.1968, F.Supp. just; 293 expression, simply means a trial that is 465, 927, 419 F.2d cert. denied 399 U.S. given aff'd. accused is a trial which the addition, safeguards provided by 26 L.Ed.2d 793. S.Ct. benefit of all the alleged misconduct on and one in which even- Constitution and laws ’ * * * justice dispensed. constitute re herein would not handed State Jones, 1967, v. 251 La. 204 So.2d unless it were shown to have versible error ‘ * * * However, prejudice 778-779. Consti- in substantial to the ac [t]he resulted ** * guarantee every White, 1977, Ill.App.3d People tution does not cused. 517, v. perfect rights defendant a trial. The vouch- 10 Ill.Dec. 367 N.E.2d practical, rights safed are rather Hays Wyo.1974, reasonable communication, concepts than ideal has not fulfilled situation which defendant pragmatic rights not be exer- even these proving.” his burden of ’ v. Es- cised without limit. Ferrell testimony patently improper to be excep- admissible under the to admit the evi- 404(b). Rule I tions outlined in am unable thereby dence and submit the defendant to agree analysis. with this danger prejudice. above-discussed argued While it danger that the agree flight I the defendant’s had prejudice may have speculative, this value, probative flight but evidence of that danger, my judgment, outweighed the bringing up was admissible without the ear- probative nonexistent prior value of the shooting. majority lier The states: “ shooting. . . . As a matter of common nature, sense and human does possible this, too, It is specu- is only —but not leave an accident victim dead or in- trial, appeal lation—that the or at jured making report without calling developed argu- could have a more viable ” for assistance. . . . prior ment that the shooting probative had Assuming, arguendo, this observation to be proving value in intent or absence of mis- sound, it has the undercutting effect of However, take. presented by rationale of the majority allowing evi- persuade the State fails to me that there shooting. dence of the urge earlier I would any probative value in the fact of the that if it is a knowledge matter of common prior shooting. Accordingly, I would supposed that one is to summon medical or reversed. police personnel upon an accidental shoot- ing, contends, majority as the then it is argue prior

fatuous to shooting that a

should be admissible to show that the de- supposed

fendant knew what one was to do

when shooting an accidental occurred. addition, shooting the two incidents

were dissimilar. The victim of the first died, shooting, although ultimately she sur- PADILLA, Appellant (Defendant), Mike long enough vived to make manifest the urgent help. need for medical In the shoot- bar, ing appellant at testified that the Wyoming, Appellee STATE victim immediately died and thus there was (Plaintiff). help. need obtain medical No. 5079. I am accept majori- Since unable to ty’s rationale prior shooting Supreme Wyoming. had Court of probative proving value in intent or lack of Oct. mistake, prior I fail to shooting see how the 404(b). was admissible under Rule In addi-

tion, persuaded since I am prior that the

shooting value, probative had I have no

difficulty concluding judge the trial determining,

abused his discretion in under value of the prior shooting

fact of the was not out-

weighed by danger prejudice. of unfair danger prejudice was that

jury punish would for the

prior shooting even if it had doubts about guilt respect standing crime for which he was trial.

Since I am unconvinced that value, any probative had I think it

Case Details

Case Name: Goodman v. State

Court Name: Wyoming Supreme Court

Date Published: Oct 18, 1979

Citation: 601 P.2d 178

Docket Number: 5091

Court Abbreviation: Wyo.