*1 required in a preliminary examination case HERNANDEZ, Appellant court or until
to be district five tried Robert days required a case not (Defendant), trial for before court. The be tried district .court or citation to be permit an information Wyoming, The STATE of amended: (Plaintiff). Appellee (1) consent, at the defendant’s With No. 98-37. any sentencing. time before (2) or not the con- defendant Whether Supreme Wyoming. Court of sents: April (A) any At time before trial if sub- rights stantial defendant are not
prejudiced.
(B) before At time verdict or find- ing if additional or different offense is no rights if
charged and substantial prejudiced. are not defendant No or different additional offense
charged by virtue of the amendment. It also acknowledged is clear counsel that Britton’s prejudiced by not be Britton would object his counsel did amendment and it. clarity record demonstrates any independent the trial not make court did of the Information amendment of its own Instead, motion. the record shows that the suggested by prosecut- amendment ing court, attorney, approved the trial prosecuting attorney
and both the and Brit- attorney ton’s in the concurred amendment. We hold the amendment of the Informa- accomplished
tion was not the trial court motion, occurred, on its and no own plain or otherwise. Jury Verdict, Judgment Upon
Sentence, the Nunc Pro Tunc Sentence
are affirmed. *2 Hackl, Defender;
Sylvia L. State Public Domonkos, Counsel, Appellate and Donna D. Appellant. for Hill, General; Attorney Paul S. William U. General; Rehurek, Attorney Deputy D. Mi- Attorney Pauling, Assistant chael Senior Baker-Musiek, General; Kimberly A. and General, Attorney Appellee. Assistant C.J., LEHMAN, THOMAS, Before TAYLOR,* MACY, GOLDEN JJ. MACY, Justice. appeals from
Appellant Robert Hernandez judgment sentence which was en- guilty found that he was tered after a aggravated assault. affirm.
We
ISSUES four issues for our re-
Hernandez submits view: I
ISSUE plain ... error for the trial court Was it fully fail to instruct on component “justification act” of self- and to not instruct the on defense portion of self-defense? “amount of force” II ISSUE commit Did the trial court im- permitted the introduction of when it testimony? proper victim III ISSUE plain error the trial court commit Did of evi- permitted the introduction when dealer Appellant dence that gang member? and a former * November Retired to, Hernandez demanded tended IV ISSUE complied, Domson his knife be returned. effective assis- Appellant denied Was An am- parking left the lot. and Hernandez of counsel?
tance summoned, bulance was FACTS hospital where he was treated taken to the *3 lung and for a cut punctured for a left 12, 1997, to February Hernandez went On heart. sack around his Springs bar with William a concert at a Rock Morgan decided Morgan and Dean Domson. night that and Hernandez was arrested asked Hernandez that he wanted and charged aggravated with assault accor gave Hernandez his get them for him. He to 2—502(a)(ii) § Wyo. Ann. dance with Stat. 6 — wallet, procure left the bar to and Hernandez 1997). (Michie juryA convicted Hernandez cocaine. some assault, aggravated and the trial court of Wyo him a term in the sentenced to serve p.m., though approximately 11:00 even At Penitentiary not less than sev returned, ming of Morgan State yet Hernandez had not years credit years nor more than ten en to leave the bar because and Domson decided already given the time that he had for was over. As the men were the concert appeals to this Court. lot, served. Hernandez parking they saw driving of the Her- out They parking lot. nandez drive into the over, Morgan got of their pulled and out DISCUSSION
vehicle, ap- Hernandez a name as he called Jury A. Instructions him, proached and for his wallet. asked equally responded with an harsh Hernandez the trial court Hernandez contends that Morgan given name and told he had not fully plain error it failed to committed when enough money buy the Her- him to cocaine. jury on the law of self-defense. instruct slapped got out of his vehicle and nandez that,the full instruction ad- He maintains Morgan across the face with the wallet. “justification dressing the to act” self- Morgan punched and him shoved Hernandez which is defense and the “amount of force” forehead, knocking Hernandez to the to the allowed should have been submitted off, Morgan jacket ground. took his and jury. the instruc- The state counters finally began fighting. two men Domson adequately sufficiently explained and tions pulled Morgan off Hernandez because it the law of self-defense. seriously Morgan hurting looked like The district court has “wide lati Morgan argued and Hernandez. Domson instructing jury; and as as tude time about whether Domson should short correctly the law and the instructions state business, Morgan’s interfered in and have charge adequately to the cov the entire Morgan leaving Domson told that he was issues, reversible error will not be ers get he did not want to into trouble because 756 found.” Baier v. police. with the the instructions in We read Domson, they According Morgan and entirety they their to determine whether cor leave, and, they when started to decided to rectly adequately state the law and cover vehicle, get Domson’s into duty of the trial court is to issues. Id. “The Morgan in stabbed the chest with a knife. the law present the instructions to testify, police did not but he told applicable actually raised to the issues that, testify Morgan officers who did while right to evidence.” Id. A defendant has the arguing, opened were he his and Domson theory given of the have instructions on pocket knife. Hernandez told the officers on his defense if the instructions case or Morgan that a knife that he warned he had sufficiently theory inform the anyway him but rushed at and was supports competent and if defense Regardless stabbed. of which version is expressed in the instructions. the law true, Morgan apparently grabbed Hernan- stabbed, following gave court instruc- dez’s wrist after he had been and The trial regarding self-defense: knife. tions the law on Domson took the While immediate, danger impending NO. 10 INSTRUCTION long as the defendant had reasonable so Aggravated of the crime of The elements and did believe these facts. cause believe Battery, charged in this Assault case, are: INSTRUCTION NO. day Febru-
1. or about the 12th On ary, 1997 that, Wyoming requires prior law to re- Sweetwater, County 2. In the force, deadly sorting person has a Wyoming State of duty pursue reasonable alternatives un- Defendant, HER- 3. The ROBERT circumstances, among der NANDEZ those reasonable alternatives be duty to retreat. Knowingly caused *4 Bodily injury 5. to William Hernandez claims that Instruction No. 16 deadly weapon a 6. With should have included a sentence which stat- acting ed: 7. And was not in self-defense. you your If of all find from consideration met, requirements acting “If those two are
the evidence that each of these elements justified though in self-defense is even proved beyond a reasonable has been part there is no intention on the doubt, you then should find the Defendant harm, person other to do the defendant guilty. any impending danger, nor and immediate If, hand, you your on the other find from necessity acting nor the actual for in self- that consideration of all of the evidence defense.” proved of these elements has not been He maintains that this information was vital doubt, you
beyond a then reasonable because, it, jury to his defense without the guilty. not should find the Defendant was not aware it could find that he acted in though self-defense even 14
INSTRUCTION NO.
that
not intend to harm
showed
did
him,
impending
dan-
that no
and immediate
grounds to be-
One who has reasonable
existed,
him,
ger actually
or that no actual neces-
another
attack
and that
lieve that
will
sity
acting
for
in self-defense existed.
anticipated
attack will be of such a
limb,
endanger
character
to
his life or
as
argument is similar to the one
Hernandez’s
harm,
bodily
or to cause him serious
has a
Baier,
asserted in
The law cases, always if it necessity. right relevant concept “[e]vidence is of tion oneself, type disprove one of the ele prove and the amount or tends to defend used, v. charged.” to what is reason- Grabill is relative ments of the crime of force 802, State, (Wyo.1980). the circumstances. ably necessary under 809 See 621 P.2d 665, State, (Wyo. determine whether a is for the P.2d 667 Geiger It also v. reasonably perceived 1993). a threat of defendant injury bodily under the circum- immediate excluded, may be Relevant evidence defend- and whether the defendant stances however, probative value is substantial if “its Thus, in a reasonable manner. ed himself danger preju unfair ly outweighed of totality evaluate the must dice.” W.R.E. 403. Victim all the de- and evaluate circumstances permitted “unless there is must not be protecting himself options fendant’s justification of relevance.” Justice clear harm. perceived threat of from such 1002, For (citations omitted). to conclude that the trial court this Court bar, instructions, at In the case unduly prejudicial evidence viola admitted sufficiently together, informed the when read Hernandez must demon tion W.R.E. Wyoming jury that the law of self-defense or no “that the evidence had strate little necessity which is evaluated is a defense of *5 extremely that it was probative value and totality and in the of the circumstances under inflammatory purpose introduced for the or appropriate. and light of is reasonable what State, inflaming jury.” Apodaca of the jurors one has were instructed that who The 1023, 1027(Wyo.1981). Geiger, also See grounds to believe another will reasonable P.2d at 668. right to arm himself for the attack has the the issue of the ad- This Court addressed attack; resisting the that the purpose of missibility testimony in of victim right exists so as the real ease, Geiger. In that we held that the testi- exist; apparent danger continues to or injuries mony which described the victim’s justified if the defendant self-defense was clearly justified proof and of was relevant reasonably danger was real or believed the kill” the crime the “intent element of not; if it and that the impending even injuries nature of the demon- because the to the level amount of force allowed rise Geiger’s proximity to strated aim and close force, deadly depending the of on what four pistol the victim when she fired the reasonable under the circum deems was that, at concluded times. 859 P.2d 668. We any that there was not stances. We conclude although questions and some of the isolated error, otherwise, in plain or the instructions irrelevant, may have taken as a answers been gave jury. to the
which the trial court whole, any testimony relevant and Testimony Impact B. Victim which occurred with the admission of testimony irrelevant was harmless. claims that the trial court com- Hernandez testimony plain error when it allowed mitted testimony at issue from injuries he sustained from about pain problems in this case described the the knife wound and when it as a result of stabbing after the occurred. Be he suffered a comment from Domson that allowed of the elements of the crime of cause one nightmares. him incident had caused to have aggravated that the defendant in assault is by responds arguing that the testi- The state bodily injury deadly weapon, with a flicted mony was relevant. that, here, Geiger, in we conclude as we did admissible, although questions the individual can be it some of Before evidence irrelevant, might answers have been tak must be relevant. 402. Evidence is W.R.E. whole, testimony “any tendency to en as a was relevant as if it has make the relevant hold, any consequence proof that is of of this element of the crime. We existence of fact error, therefore, not prob the action that there was to the determination of more probable than it would be with- or otherwise. able or less following prior acts offer the bad evidence: statement Regarding Domson’s incident, in 1992 of that Hernandez was convicted having nightmares about he was 1980; battery; a opened the door to that he killed man counsel the defense pleaded guilty attempted in 1996 to 957 P.2d that he testimony. Gayler v. See possession dangerous weapon asked a a re- The defense counsel 859 (Wyo.1998). and, holding person exchange plea, Hernandez was stricted Domson how charges possession “He had both arms of a controlled He answered: two knife. out, right, hopping up and knife in the substance were dismissed. ob- face, down, joker’s jected on his admitted. acting like smile to this a— want, you Billy[,’]and it stating, ‘Is this what prosecution and Hernandez entered redirect, pros frightening.” On was flat stipulation prose- a into written wherein the experience inquired about how this ecutor use, case-in-chief, agreed cution not to its Domson. The defense counsel had affected charged evidence that Hernandez had been argued that he objected, prosecutor but man; killing in 1980 with a evidence that explore Domson’s state should be able pleaded guilty attempt- in 1996 to frightening.” “flat ment that the incident was weapon by possession dangerous ed of a and, objection, court The trial overruled relating person, including evidence restricted response question about whether the which were in Hernandez’s vehicle scary, he had been Domson said had incident arrested; when he was or evidence of Her- having nightmares about it. Hernan been battery nandez’s 1992 conviction. has not shown that the did dez value, extremely trial, probative that was During have some of the testimo inflammatory, or that its introduction was ny revealed other bad acts which were not jury. The trial court stipulation. intended to inflame the covered Hernandez com deciding prosecu portions did not err to allow plains particular about three explore testimo testimony. tor to this area of Domson’s the trial The first section of the *6 opened. ny once the door had been testimony which Hernandez takes issue with during the examination of occurred direct Evidence C. Other Bad Acts Morgan. Morgan testified that he met Her camping family. nandez while he was with his in- Hernandez contends that the evidence explained his sister introduced him He a dicating he was a dealer and former to Hernandez Hernandez sold because Angeles gang in Los was irrelevant member thought Morgan might want to know and she unduly prejudicial, intro- that it was not that he and him for that reason. He stated it pursuant duced to W.R.E. and.that friends, good that Her Hernandez became pretrial stipula- a was admitted violation of drugs, good supplier nandez was testimony tion. The state claims that always prices low. This testi that his were necessary relationship was to describe supported mony relevant because it was and to between the victim and Hernandez ongoing Morgan’s statement that he had an improper inference the defense rebut an relationship with Hernandez. counsel. issue, In discussion of the last we set our testimony The second area of the to out the of review we use deter- standard challenges during the Hernandez occurred mine whether was relevant. Morgan. examination of On cross- redirect applies standard to this issue because same examination, explain Morgan asked to was complains specified that the testi- Hernandez why that he knew he would he had testified mony unduly prejudicial was irrelevant and fight with Hernandez. He have to finish the stipulation pretrial on and that it violated “Well, that Rob responded: I —I had known prior acts. the use of bad ex-gang L.A. I ert an member from him, trial, any requested that knew that if I had trouble Before the me, back on or all which he would either come prosecution disclose During there.” the redi 404. The should be finished might be admissible under W.R.E. examination, prosecutor examined to rect prosecution responded that it intended trial, we rule that Hernandez’s assistance regarding this statement. Morgan further not deficient. had of counsel was that he and Hernandez Morgan stated pasts and that Hernandez their talked about at Regarding the assertion that his being gang member bragged about had subjective torney argued the should have agree with the state Angeles. We Los opening component in the membership was ini- gang the reference closing argument, Hernan statement and his that further tially by the defense and elicited attorney in that his should have dez claims justified. prosecution was development necessary formed the that it was not danger be the threat to be real or for the testimony that Her piece of The last impending and immediate before self-defense have been admitted claims should not nandez During closing argu appropriate. his Morgan’s state sister’s into evidence ment, explained that the defense counsel quarter traded a that Hernandez had ment badly Hernandez knew had beaten pur pound marihuana for a horse. people past. in the The defense counsel clarify impli was to an pose of this statement required suggested that was not in the by the defense counsel earlier cation allow to do the same or worse to given a Hernandez had been horse trial that right him him before he to defend had exchange he had done. for work which Additionally, in the self. as we discussed error, was not hold that there We issue, was instructed that the first otherwise, by allowing that tes or committed right of exists whether self-defense timony evidence. into danger apparent threatened is real or necessary danger that it is not for the to be of Counsel D. Ineffective Assistance impending real or and immediate before self- was not af- Hernandez contends that he justified defense is as as the defendant effective assistance of counsel. He forded reasonably it is. believes that his counsel committed four maintains that Hernandez has not shown We hold deprived him his serious errors which performance that his counsel’s was deficient. right to have constitutional effective assis- Although hindsight attorney Hernandez’s counsel: failure to submit the cor- tance of differently, things have done some pertaining to self-de- rect instruction performance did not rise to the level of object fense or to to the instructions unconstitutionally defective. object given; improper failure to victim Affirmed. to, testimony; object failure to *7 eliciting, testimony that Hernandez in fact LEHMAN, Justice, concurring, with Chief gang dealer and former mem- was GOLDEN, Justice, joins. whom ber; subjective argue and failure to the component opening of self-defense his agree I Hernandez’s conviction While closing argument. statement and affirmed, should be I follow a different trail by majority opinion. than the one blazed the prevail In order to on his claim ineffec Therefore, following exceptions, I with the counsel, tive assistance of Hernandez must majority opinion. concur in the showings make the dual that his counsel’s majority My disagreement opin- the performance was deficient and that the defi with performance prejudiced his defense. of Hernandez’s claims of cient ion surrounds two State, 1193, First, (Wyo. evidentiary agree I Smith v. 959 1198 error. do not P.2d 1998). testimony exception opened counsel the door to With the of Hernandez’s defense attorney argued night- claim that his should have from state witness Domson about his stated, “Succinctly subjective component the the mares from incident. party closing argument, ‘opening the rule is that a opening his statement and the door’ areas, way permits judge the trial we the in our discussion of who in some addressed above, inquiry gates claims the to a field of that is the issues where Hernandez let down complain Having competent not but relevant cannot his counsel was ineffective. conclud him- adversary if is allowed to avail ed that no error occurred those areas of also 679 “really testimony All of scope.” low.” this was ad-’ opening the within its San self of State, 1340, 1344 objection. (Wyo.1979). mitted without Defense 593 P.2d counsel ville v. however, object, prosecutor had occasion to the this court has not did when' While responsive sup- an importance the of a asked what kinds discuss sustained, opening plied. objection despite the door in the context of the swer doctrine, problem prosecutor’s protests that “I’m have addressed the un establish- we ing relationship doctrine. “A he the related invited error had Mr. Hernan- der where dez.” this the state of the rec- error is considered invited With testimonial ord, objectionable testimony responsive plain to a is is confronted with posed by objecting party’s coun question error standard. 740, State, P.2d 751 sel.” McCone v. 866 standard, plain Under this court’s error State, also, (Wyo.1993); Pack v. 571 P.2d see appeal a “the accused raise on claim of
241, (Wyo.1977). The reason for such 246-47 plain error the admission of evidence of simple, expressed this a limitation is acts, upon prior bad but it will be incumbent “Nevertheless, does not court: above authority specifical- the accused to offer case representa give to law enforcement license ly foreclosing of the evidence un- admission seemingly volunteer tives to bad faith Vigil der the circumstances of the case.” v. McCone, P.2d prejudicial information.” State, 351, (Wyo.1996). 926 P.2d Be- at 751. presented cause Hernandez has not case au- majority, thority I do not believe Dom- specifically foreclosing Unlike the admission of evidence, manner in which satisfy son’s assertion that he has failed frighten- making knife was “flat Hernandez held the error standard for a claim under 404(b). ing” responsive the cross-examination W.R.E. question defense counsel of “how was he assuming Even that the introduction of the that, holding the knife?” I am afraid 404(b), testimony I do not violates W.R.E. future, difficulty repair- this court will have prej- believe that Hernandez has established easily ing majority’s opened doors. reversal, especial- udice sufficient to warrant Therefore, rely I would not on either the ly protest when he does not other opening the door or invited error doctrine to relating drugs. Spe- to his involvement with inquiry. sanction this field of See Fortner v. cifically, complain Hernandez does not about
State, 1139, 843 P.2d 1148-49 Morgan’s testimony supplied that Hernandez Nevertheless, I hold the harm- would marijuana cigarette the two shared be- less under the circumstances of this case. addition, In fore dinner. Hernandez does trial, four-day simple During the Domson’s protest not the relevance of his unsuccessful nightmares that “I have about it” statement attempt to obtain cocaine sufficiently prejudicial that a reason- night stabbing. Perhaps impor- most that, error, probability able exists but for the tantly, the district court sustained defense favorable the verdict would have been more objection challenged counsel’s before the line to Hernandez. Kerns questioning got too far out of hand. Un- *8 circumstances, rather than at- der these My majority disagreement second with the tempting justify the admission of the opinion of Hernandez’s dealing testimony, simply concerns I would hold drug dealing pertains “ongoing as it to the Hernandez has not established error. relationship” between and Hernan- foregoing exceptions, I concur in With the First, majority neglects dez. to mention majority opinion. objection testimony.
that there was no to this Morgan testified that his sister introduced
him to Hernandez because Hernandez sold [Morgan] might
drugs and she “felt be inter- knowing ested in him because of that.” Mor- testify gan went on to that Hernandez was a prices good supplier drugs, and the were