*1
Cooper
ap-
authority
holding
14]
Mr. Mathewson cites no
tion.” Our
as stated
prohibits
City
utilizing the
from
equal
plies with
force
this case. “Under
§
explicitly
by
procedures
authorized
15-1-
circumstances,
only
we can
conclude
these
presented
court found he
801.
district
specific requirement that it act
that absent a
City
failed to follow the
no evidence
ordinance,
by
by
could act
resolu-
Town
procedures
outlined
15-1-801 and
Jultak,
Id.;
see also Thomas v.
tion.”
appeal,
§§
through
35-2-424
35-2-436. On
(1951).
clear his Mathewson that,
parently arguing proceeds because the part
from the 2002 bonds were to be used
defease,”
“advance,
repay,
refund and
or
outstanding,
the 1994 bonds which were still
ordinance is not He cites 6 McQuillan,
gene Municipal Corporations (3d ed.1998)
§ 21.09 at 260 for the definition repeal”
of “constructive which on its face apply
does not to the 2002 resolution. A repeal
constructive when the later occurs provisions contrary
ordinance “contains so
or irreconcilable with those of the earlier only one of the two can
ordinance stand force; repeal ... The of an ordinance is abolished,
accomplished destroyed, when it is cancelled, annulled, recalled,
abrogated, McQuil- Eugene
rescinded a later one.” 6
lan, Municipal Corporations § 21.09 at 260
(3d ed.1998). merely The 2002 resolution proceeds
authorized the use repay outstanding
later bond issue to they
1994 bonds before became due. It in no
way annulled or rescinded the earlier ordi- originally
nance which authorized the issu-
ance of the 1994bonds. *4 Koski, Defender,
Ken Public State and Domonkos, Counsel, Appellate Donna D. Representing Appellant. Argument by Mr. Koski. MacMillan, General; Attorney
Hoke M. Rehurek, General; Deputy Attorney Paul S. Pauling, D. Michael Senior Assistant Attor- General; Tibbetts, ney Georgia L. Senior Attorney General; Assistant and Robin Ses- General, Cooley, Attorney sions Assistant Representing Appellee. Argument by Ms. Cooley. HILL, C.J., GOLDEN,
Before LEHMAN,* KITE, VOIGT, JJ. HILL, Chief Justice. by Appellant,
[¶ 1] The issues raised (Johnson), Daniel J. Johnson in this case equal protection concern the cruel * argument. Chief Justice at time of oral declared the same acts to protections afforded two statutes punishment
and unusual crimes, charged and Constitution, appellant was well as the by Wyoming penalized statute that convicted under the Specifically, Constitution. United States severely? implications arise him more and their instant issues charged first de- a defendant is when right free appellant’s to be III. Whether maxi- murder, carries a gree felony punishment was cruel and unusual (though in this punishment mum of death by the use of child abuse as violated imposed), mandatory life case a sentence felony purposes of the felo- underlying felony charge is a underlying for that and the ny rule? murder statute, which the child abuse violation of it the trial court erred when IV. Whether years’ punishment of five a maximum carries appellant’s give instruction refused including in those circum- imprisonment, incorrectly it de- specific intent and when in the death results stances when abuse intentionally? fined urged, are includ- child.1 Other issues necessity disqualifying the entire the trial court erred when V. Whether attorney’s appointed staff when district jury presence without instructed accepts employment as an counsel defense waiving him his appellant and without attorney; error in instruct- district assistant *5 present? right to be ing jury; the failure to Johnson the prosecutor improperly the VI. Whether supplemental instruction was present when a in- right not to commented on Johnson’s response question from the in to a furnished by inferring invocation of criminate himself This jury; prosecutorial misconduct. and guilt? right evidence of this was felony the offenses of is satisfied that Court felony degree and child abuse first murder erroneously trial court Whether the VII. by distinguishable different elements are jury? the instructed violation arises from that no constitutional rephrases those issues2 as follows: The State felony child abuse stat- the invocation of the felony degree underlying for first ute as the court its discre- I. Did the district abuse that no felony are also satisfied murder. We refusing disqualify the Natrona tion to reversible error is to be found Johnson’s Attorney’s County District office from and, consequently, we will af- other issues prosecuting the case at bar? firm. felony appellant’s conviction for II. Was protection equal the murder violative of ISSUES punishment provi- and cruel and unusual briefs, supplemental In [¶ his brief and 2] Wyoming sions of the United States raises these issues: Johnson Constitutions? court its. dis- I. Whether the trial abused properly in- Did the district court III. Na- disqualifying the entire cretion not jury the elements of the struct the County Attorney’s District Office trona appel- felony upon murder crime appearance due to the from the case at bar lant was convicted? impropriety? respond- Did the district court err appellant’s equal protection IV. II. Whether jury questions affording ap- §§ 2 without rights and 34 of the under Article pellant opportunity present? to be Wyoming violated as the Constitution were and, equally divided point this The Court is not we out in more detail later in manee. 1. As shall hence, opinion, Legislature subsequently authority respect the has amend- to the the State’s with longer so that no ed the child abuse statute evenly apropos. an divided court is not result of death. includes instances of abuse that result in authority proposition the The State cites no for currently the Court as it is constituted 31, 2002, January supplemental In its brief of case, authority to and we without consider should not the State contends that this Court unnecessary formally address that as- find it Court as it is have resubmitted this case to the pect brief. of the State’s constituted, currently and that if the Court was divided, evenly affir- that should amount to an 24,1995, wife and prosecutor the Johnson called his told her made Statements V. baby breathing right the was not and to prop- constituted during closing arguments arrived, immediately. home When come she argument. er baby chair, in a and Johnson the was was on properly instructed The district court VI. phone personnel. emergency the with Short- jury. thereafter, personnel ly emergency arrived transport hospital. child to The INTRODUCTION response first to the call came from John- August By filed on 3] an Information landlord, neighbor Emergency an son’s 29, 1995,3 charged with first Johnson was (EMT) Casper with Medical Technician felony punishment for degree murder. The Department. Fire EMT The noticed the prison degree life or first murder is either baby breathing was not and that there was a sought in penalty The death was not death. drop of one of the small blood around child’s addition, charged was this case. ambulance, waiting While nostrils. inflicting injury on a child two counts of with began immediately administering EMT Ann. 6-2-503 violation of Stat. CPR, per- but other medical neither he nor (Michie Eventually, Supp.1994). 1988 and were the child while sonnel able revive dismissed because of those counts was one transporting hospital. him to the When he predicate alleged felo- crime was also a.m., room emergency arrived at 5:07 charge. jury ny felony for the murder arrest, unresponsive, child was full of the other count.4 Johnson innocent found pulse eyes respiration, no his were jury degree of first guilty found Johnson dilated, bluish-yel- tongue fixed and his felony murder. stiff, body temperature low and his Upon degrees. normal at 93.5 unsuc- below FACTS cessfully infant, trying to resuscitate *6 emergency physician pronounced room the 23, August on p.m., 4] At about 10:00 dead at infant 5:52 a.m. 1995, victim, Johnson, left in the Thomas was wife, Acting according proce- to standard [¶ 5] care who was the when his Johnson’s death, mother, treating the arrange- The after an infant’s went to work. dure victim’s In addition physician made the was that wife notified the coroner. ment Johnsons exam, worked, stayed performing physical treating the and home with the to Johnson job. sample of the physician because a better obtained a infant’s child she had When work, spinal left for wife fluid to culture. the doctor was she Johnson’s testified While injuries, any problems any to be unable to detect external he appear that there did not a.m., August hemorrhaging, the At 4:40 on indi- with child. about observed bilateral retinal 18, argument, sup- Court on After There are a number of that contributed March 1999. 3. factors 5, 20, lengthy delays that plemental April to the rather occurred in this filed on and briefs were herein, 26, more case. As we will set out in detail 1999. was unable to reach a The Court permitted attorney Johnson’s first was to with- case, of this as well consensus on its resolution appointed, attorney draw. A second was and she State, companion Case No. the case Johnson permitted repre- was too to withdraw her interim, 99-320. In Justices Thomas the both Finally, public sentation of the Johnson. defend- Macy and service with the from active retired 24, 1996, May appointed er was attorneys on and the briefing requested Court. The Court additional formally assigned to Johnson entered equal protection relating on the issues and 7, 1996, appearances their on June some ten punishment cruel and unusual and additional gave months after rise to the the events Court, argument presented to the as it is charges. place July criminal 22-24, 1996, trial took Johnson’s 17, constituted, April now on 2002. Judgment and Sentence and were 26, July appeal entered notice of on 1996. A because, abuse arose 4. The second count of child day. unusually large filed that same An number conducting autopsy, the in the course of it was granted reporter, to the of extensions were court recovering shortly complet- who retired this trial was noted that the victim was from anoth- after ed, completed transcript process and the and was not the er was in the of subdural hematoma that February itself,” case not Court until healing, alleged docketed in this "resolving and it was 19, Appellant’s Septem- Brief was filed on injury during an that Johnson had caused that 18, 1998, Appellee’s ber and Brief was filed on episode bouncing earlier of the child on his knee. 22, January argued 1999. The case was to this in the mouth injury. spinal The fluid was Johnson noticed blood child’s eating a brain in- “grossly”5 bloody, indicating midnight. Although also a brain and nose at about jury. autopsy disclosed intercranial previously An an friend told Johnson he was too hemorrhage and hemorrhage. The bilateral child, rough with the Johnson claimed that he the hemispheres the two of blood between past. had in the never seen blood John- findings brain indicated consistent with shak- police son used a doll to demonstrate injuries baby syndrome. The had oc- en morning he infant the of his how bounced the times. recent curred at various The most thirty-second period, death. the officers In a injuries of The older were the cause death. bounces, ninety-one with counted Johnson (one old) injuries in the to two weeks were providing support never for the head. doll’s process healing and would have resolved pertinent will set out other facts We over the course time. themselves conjunction particular issues with testify did not own [¶ 6] Johnson his our of those issues. discussion However, gave behalf. he several state- officers, police investigating includ- ments to DISCUSSION ing tape-recorded played that was and one statements, jury. for Those in their Disqualification Attorney’s District Office following totality, story, and are the told August [¶ 9] From until the end principal sources of the evidence demonstrat- rep- H. November of Steven Brown guilt. Initially, Johnson de- Johnson’s resented Brown went Johnson. to work any knowledge in- nied cause of the County Attorney’s the Natrona District Of- Later, injuries. police he told and fant’s 1,1995. fice on Brown not file December did treating physician infant awoke a motion to withdraw as Johnson’s counsel a.m., give and that he tried to him 4:00 16, 1996, January until and motion was bottle, infant sounded but the “weird.” granted January Brown’s feeding baby was unsuccessful soon withdraw, January 16, motion to eyes. baby shut his was in his stroller appearance by Virginia was entered Hazen try him him. shook to awaken as Johnson’s new counsel. point, baby breathing, At stopped slap to awaken him Johnson tried Only three activities are shown cheek, on the but this did not child revive the 29, 1995, the record between November *7 specifically with either. When confronted First, request Hazen’s a withdrawal. for the autopsy results that the infant died as a setting “COP,” by was filed for the State shaking, result of severe admitted to Johnson 8,1996, January on and it was served on Jim “bouncing” up-and-down the infant on his Raymond, partner. Brown’s former law It knee, faster, sometimes harder and in order appears change plea means a that “COP” get stop to the child and him soothe 11(e). hearing provided as for W.R.Cr.P. crying. pathologist performed who A was hearing on that motion scheduled for autopsy testified that cause of death was 19, However, January 1996. record does likely up-and-down shaking most of the hearing place. not that such a reflect took inju- baby, that some of the but intercranial Second, to compel Hazen filed a motion dis- side-to-side, ries of a were indicative rota- (because 27, covery on March the State turning infant’s tional head. responded September had to Brown’s never 18,1995 discovery). respect demand for At the same to the events of Au- 7] With time, 24th, requested hearing that a gust he in- she be set for said bounced the minutes, motion, fant well as for motions previously for about five to seven as (the November, by was of time heat filed hear- about the amount it took to Brown vomited, baby’s baby ing April was formula. and scheduled for but the Ed., identified). Although “grossly,” Bennington, 5. the word as used in this James L. Saunders context, explained jury Dictionary Encyclopedia Laboratory and Med- was not further to the witness, (1984); beyond by physician Technology icine its use its mean- and Webster's 1002(lc) eye ing by Dictionary Third is that blood is observable the naked New International (does (1986). microscopic require to be not examination hearing supervised probation record does not reflect that such for the minimum sev- Third, 18, 1996, place). April on Hazen years took en on the condition he success- continuance, and that fully filed a motion mo- complete years three at the CAC by granted April tion was order entered on program. 23, 1996, April 1996. On Hazen filed a Additionally, your client would suc- withdraw motion to as counsel for Johnson cessfully complete any counseling, and all public requested appointment of a de- alcohol, treatment, child abuse or other fender. Hazen’s motion to withdraw was probation. usual conditions of April denied order entered on premised 5. This offer is on the as- her Hazen renewed motion to withdraw on sumption your prior client has no 6, 1996, May and filed bare-bones motions to felony offenses. If previously he has been Judge disqualify disqualify Sullins and to felony, convicted of a then the offer is County Attorney’s entire Natrona District withdrawn. The second motion to withdraw Office. was physical case, Given the evidence in this 24, 1996, granted by May order entered on the fact that the death of Thomas did public appointed and the defender appear to come about criminal reckless- represent Johnson. anger-driven assault, ness rather than an necessary digress It is momen- any prior and the lack of criminal offenses tarily. withdrawing Before as Johnson’s at- client, by your I disposition believe this torney, negotiated plea agreement Brown fair appropriate. attorney’s with district office. The terms you your If agree client with this agreement, of that as set out in a letter dated proposed disposition, please sign in the 29, 1995, November from the district attor- portions indicated below. I understand ney to Brown were these: lawyer your that another firm will be You I [Brown] [Kevin Meenan] present with Mr. change Johnson at the discussed a settlement of this matter sev- plea which we will schedule later in the willing eral times. I am at this time to month of December. following extend the offer to resolve this agreement signed by
matter short of trial: That John- Attorney son and Brown “APPROVED currently charged 1. Your client is However, AND ACCEPTED.” the record degree felony one count of first murder change plea pro- does not reflect that a abuse; felony and two counts child materialized, and, ceeding course, ever Wyoming 2. The State of would move began Brown left his defense of Johnson and (the murder) felony I to amend Count ato working attorney days for the district two involuntary manslaughter count of charg- signed. Although after the letter was there your unlawfully client kill did corresponding transcript, by is no order en- Johnson, being, human to wit: Thomas 23, 1996, January tered the district court malice, expressed implied, without invol- *8 indicated that ap- Johnson his counsel untarily recklessly, but in violation of W.S. peared him, before and it was the trial exchange 6-2-105. In plea for a presentence court’s determination that a in- guilty count, to that amended the State vestigation completed, though should be even would also move to dismiss Counts II and plea no trig- had been entered which would III. ger request. such a ordering Other than join 3. The State would with the Defen- presentence investigation, proce- none of the dant a recommended sentence to the governing plea agreements dures were fol- Court that Mr. Johnson be sentenced to 11(e). lowed. W.R.Cr.P. Wyoming Penitentiary State for a term of not less than presentence seven nor more than ten A investigation [¶ 13] was years. prison That completed term would be sus- and filed with the district court on pended, your 27, placed period February client By on a 1996.6 letter dated Febru- investigation 6. The became an issue use presentence statements made Johnson to the any pre- against trial because the district wanted to of that as evidence Johnson attorney parer report County Natrona disqualify the entire court court informed ary the district attor- Attorney’s because the Office parties of this: District counsel for initially represented Johnson ney had who my current review of upon Based in order to as his counsel withdrawn had provided was Letter that Agreement Plea attorney. the district accept employment with referenced with the to in connection me attorney’s office and Brown reject the Both the district case, that I would I would advise that Brown will- to ensure agreement. precautions I would be plea took some proposed proposed amendment with accept any further contact to not have would charge of to a charges in the case Brown informed Johnson case. Johnson’s involuntary manslaughter, under change of office. about his November 6-2-106, amended, Stat.1977, as Section verbally attorney informed The district joint reject proposed I feel must but file, that if to the to have “no access Brown sentencing. recommendation anything, any meetings or standard there’s plea [was] that no else to raise Exactly happened procedures, to then one what [¶ 14] record. the room.” agreement is not reflected I’m there. I have to leave while what get to some sense of we attempted The closest the case with Nobody discuss exchange during an might happened is him, approach anyone in the office nor did he and Johnson the trial court between the case. divulge information about permitted to with- Hazen was occurred when case was the courtroom when the Brown left public attorney and the draw as Johnson’s call. He further ex- during docket called like this: appointed. It went defender was any about Johnson plained that discussion that obvi- You understand THE COURT: Friday morning placed at the end of case for ously is a most difficult this meeting agenda and when Johnson’s staff good may attorney. part, called, he left the room. name to, you a new attor- to allow reason Further, that he Brown testified ney, have a fresh start? matters to the never revealed confidential DEFENDANT: Yes. THE negotiating for attorney, even while district your part think- THE COURT: Is attorney’s office. position at the district his wanting a your reasoning in ing and position, new he he learned of his When switch? withdrew, appointed another attor- the court start, No, a new THE DEFENDANT: not original ney, provided her all the and he way way get I just fairness. some copied. The new which he never records would be fair— feel it Johnson, privately wth attorney then met (Discussion off the record between held that he although Brown did indicate Defendant.) Miss Hazen and Saturday meeting between have attended my desire to THE DEFENDANT: It is joining Hazen after the district guilty plead go trial rather than Although did not attorney’s Brown staff. charges that— immediately case from Johnson’s withdraw you right And have that THE COURT: starting employment at the district when his under the law. office, plea agreement had attorney’s previously, and he was wait- worked out 19, been backdrop, on Against June judge to hearing in front of the ing for a attorneys filed a com- new Johnson’s it.7 asking finalize prehensive district motion *9 court had counsel that the trial and defense The trial court allowed in its case in chief. attorney copy report, enough but to have a of the to decide the issue. From district information going attorney was not to allow perspective, it was clear that he district had the this Court's report in evidence. itself to be admitted testimony actual testify, available to such made himself concerns might to ease the residual have served attorney going testify at this district 7. The attorney to whether the district Court has as also, when hearing he was unavailable but questions this aware of the rather serious testimony. telephonic There finished his Brown precipitated. matter agreement by prosecutor general both the was a personal that maintains direct and that his efforts to [¶ 17] Johnson ensure refusing in prejudice court abused its discretion that no would result to district his former County disqualify the entire Natrona Dis any client lack outbalance of attention to this Attorney’s As an issue of first case, R.B., trict Office. vital issue. From the Matter of Wyoming, impression in we turn to other (S.D.1998), 583 N.W.2d 841-42 we have jurisdictions guidance. following guidelines, distilled the additional which must in be followed future cases: proceedings outlined
[¶ 18] The above 1. are, indeed, Oral and written quite directions must be unusual and understand- given to all staff ably questions han- members that the attor- raise serious about the ney participate any will not in dling stage case at a crucial of matter in Johnson’s However, proceedings. attorney participated we which the public hasten to add as a only regard attorney. issue with defender or criminal raised defense A circumstances, screening policy these is whether or not the written put must be denying court discretion in place requirement trial abused its to ensure this is met. disqualify Johnson’s motion to the entire Na- every 2. A letter should be directed to County Attorney’s trona District Office. attorney announcing former client of the appearance contention Johnson’s employment relationship. the new This impropriety great per is so that it is error client, may letter sent to be care of the se, and reversal of Johnson’s conviction is attorney. Ideally, client’s current this let- mandated. He also contends that even un- appear ter should in the court of an record case-by-case approach, der a evaluation affected criminal case. appearance impropriety demonstrated prosecuting attorney’s 3. screening great require here is so as to reversal. policy judge every should be sent to in the district, circuit, county affected. step provid 19] As the first and/or ing guidance handling trial courts such copy screening policy 4. A question, adopt we will the standard that a placed every should be active case file deciding trial court has substantial latitude attorney participated. which the disqualified. if counsel must be See United. employees 5. All office should ad- be (9th Frega, States v. 179 F.3d Cir. orally writing vised both and in 1999) Stites, (citing United States 56 F.3d screening process violation of the must be (9th Cir.1995)). 1020, 1024 decline to We reported immediately and that inattention adopt “appearance impropriety” stan screening policy to the will result in disci- adopt ap dard and instead “function pline. proach,” preserving which focuses on confi prominent In location near case dentiality avoiding positions adverse to files, post a list of all cases from which the Dimaplas, the client. See State v. 267 Kan. attorney tois be screened. (1999). 978 P.2d 893-94 areWe These, comparable procedures, persuaded that much more needs to be done place should remain in until the need for in future cases where such a conflict as that passed.8 them has arises, identified above but we will set down addition, prosecuting attorneys bright-line Utilizing [¶21] no rules. the standards familiar, above, necessary should be or as adopted we become hold Johnson was not familiar, substantially prejudiced by applicable ABA the Natrona standards re- County function, attorney’s handling adding lating prosecution district to the as well as staff, law, pertinent required Brown to his however ill-considered it with case might appear on the surface. are satis circumstances such as those which arose We testimony fied that Ignorance Brown’s was frank and here. of the law is less a no Obviously, "improvise” larger persons. there be a will need to than two or three Two universal (1) procedure guidelines goal apply: based on local A conditions. such as should The essential conflicts, large appear- that set out above should suffice in most to avoid actual as well as the (2) prosecuting attorneys’ impropriety; offices. We are aware ance of the record should *10 prosecutorial clearly precautions that there are offices where there is reflect what were used to only single prosecutor many may goal. be no attain that attorney it prosecuting than for a defense a criminal defendant. (ii) respect a disabled with to “Abuse” defined under W.S. 35-20- adult means as Felony Murder
Equal Protection — 102(a)(ii). respect a child with to “Abuse” Abuse Child or inflicting causing physical means or danger to injury, harm or imminent mental charged first de- [¶ 22] Johnson mental health or welfare of physical or Wyo. felony murder in violation of Stat. gree means, (Michie 1994)9. by child other than accidental That § statute Ann. 6-2-101 abandonment, un- including excessive or provided: corporal punishment, malnutri- reasonable (a) pre- purposely and with Whoever by thereof reason tion or substantial risk of, malice, perpetration meditated or neglect, and unintentional of intentional or any as- attempt perpetrate, sexual or allowing the commission the commission or sault, arson, burglary, escape, re- robbery, against a child as de- offense of a sexual arrest, of a sisting kidnapping or abuse fined law: (16) years, age of sixteen child under being guilty murder any human of kills degree.
in the first (B) that enhanced Johnson’s The circumstance injury” death or “Physical means felony child abuse of a murder was including crime any harm a child but not age is a under the of 16. Child abuse child disfigurement, impairment of limited to Wyo. § Ann. 6- crime that is defined Stat. bruising, bleeding, any bodily organ, skin (Michie That Supp.1995). 2-503 burns, any bone, of subdural he- fracture provided: statute substantial malnutrition[.] matoma or (a) consti- Except under circumstances brief, supplemental In his [¶24] 6-2-50210, per- tuting a violation W.S. to a 2002 amendment to calls our attention abuse, felony pun- guilty child son is 14-3-202(a)(ii)(B). § now That statute than by imprisonment for not more ishable reads: (5) years, five if: (B) “Physical injury” any means harm (i) at least six The actor is an adult or is including a child but not limited to (6) victim; years than the older bodily impairment any disfigurement, (ii) intentionally recklessly actor greater magni- if organ, bruising skin age upon a child under the of six- inflicts bruising tude than minor associated with (16) years: teen corporal punishment, bleeding, reasonable burns, bone, he- fracture of subdural (A) Physical injury defined in W.S. malnutrition; matoma or substantial
14-3-202(a)(ii)(B); or
(B)
injury
Although
§
Mental
as defined W.S.
1.
Wyo.
Laws Ch.
Sess.
14-3-202(a)(ii)(A).
added]
changes
[Footnote
other
were made to
several
definition,
may
also create some
some
instance,
alleged
circumstances,12
special impor-
troubling
injury,
physical
as defined
Johnson inflicted
Legislature
deleted
tance to this decision
14-3-202(a)(ii)(B) (Mi-
Ann.
Stat.
the word “death.”
Supp.1995) (emphasis add-
chie 1994 and
ed):
per
that a
Johnson contends
(a)
a criminal act such as he
through
son who commits
As used
14-3-201
W.S.
did,
these
punished under either of
could be
14-3-215:
may pose
corporal punishment,"
subsequently amended.
reasonable
9. This statute has been
prosecution
significant
in the
difficulties
some
Aggravated
battery.
assault and
legislature
arising
statute. The
crimes
under this
take a closer look at its work in this
wish to
subsequently amended.
11. This statute has been
regard.
bruising
greater
language,
"skin
if
magnitude
bruising
than minor
associated with
*11
1245
i.e.,
statutes,
virtually
they punish
implicated important
questions.
identi-
constitutional
two
ways.
very disparate
in
Reversing
cal conduct
two
utilizing canons
right
inherent
prevail
provides: “In their
should
tution
that a later statute
such as
happiness, all
life, liberty
pursuit
it would
and the
one with which
over the earlier
equal.” Ar
specif-
human race are
overlap, or that the more
members of the
otherwise
general
more
“All
of a
prevail
provides:
over the
laws
ic statute should
ticle
operation.”
it
otherwise
which would
have a uniform
We
general one with
nature shall
overlap.
latter section is most
have held that
equal
the federal constitution’s
similar to
98-99;
LaFave,
King,
supra,
Israel &
our
provisions,
though because
protection
Tish,
Comment,
Duplica-
Martin H.
and see
oper
speaks in
uniform
terms of
constitution
Discretion,
Statutes,
Prosecutorial
tive
“adaptable,”
we have found more
ation
Statute, 71 Jour-
Armed Violence
the Illinois
*14
phrase “equal protection.” See
than the
(1980);
Criminology 226
Law &
nal of Crim.
1 v.
County
District No.
(Alaska
School
Washakie
State,
661,
702 P.2d
669-63
Hart v.
Herschler,
310,
(Wyo.
n. 10
606 P.2d
320
205,
Cissell, 127 Wis.2d
App.1985); State v.
Russell,
67,
1980);
Nehring v.
582 P.2d
693-98,
691,
(dissenting
701-4
378 N.W.2d
Likewise,
recog
(Wyo.1978).
we have
77
(Wis.1985);
Pickering,
v.
462
opinion)
State
holdings
that the
of the United States
1157-63,
(concurring
nized
1151,
1163-66
A.2d
merely
(Me.1983).
many
instances
Supreme Court are
opinions)
dissenting
beneath,
go
and our
that we cannot
floors
spite of what we said
32]
[¶
may, in
cir
at least some
state constitution
Small,
specifically recognized that
have
we
cumstances, provide greater rights than does
pro
overlapping statutes do not violate due
the federal constitution.
holding,
have em
principles.
In so
we
cess
Supreme Court’s
the United States
braced
Although
argu
Johnson’s
State,
in Batchelder. Worcester v.
decision
cogent, he has not
able to
ment
is
been
¶
¶
82, 26,
47,
2001
30 P.3d
WY
26
authority
support
provide
direct
it.
us with
State,
821,
(Wyo.2001);Duffy v.
789 P.2d
826
research,
prece
have found no
In our
we
State,
561,
(Wyo.1990);
774 P.2d
Nowack v.
regard our
convince us we should
dents that
(Wyo.1989);
v.
Bueno-Hernandez
563-65
greater rights
providing
state constitution as
State,
1132,
(Wyo.1986); Kal
724 P.2d
1140
by
identified
the United States
than those
State,
693,
(Wyo.1985);
las v.
704 P.2d
694-95
Although
Supreme
in Batchelder.
Court
State,
1148,1153
Capwell v.
P.2d
also see
686
little,
any,
there is
if
concrete evidence
specif
(Wyo.1984).
decisions have not
These
intent,
persuaded that the
legislative
we are
equal protection analysis,
ically employed an
exactly
legislature
do
it did.
intended to
what
acceptance
our
of the Batchelder reason
but
that the 1994 amend
are also convinced
We
range
ing appears to
to the entire
extend
gave
degree
statute
ment to the first
murder
holdings.
its
warning
fair
to all citizens that if a child died
abuse,
poten
prudent
it
at this
the result of
then one of the
33] We deem
as
penalties
prison
or execution.
juncture
tial
is life
to concede that the issues Johnson
passed in 2002
regard
been decided The amendment
that was
raises
this
have
clarity in
area
Supreme
helps achieve additional
against
him
States
United
law,
not serve to remove an
constitution
but
did
on the basis of his federal
Court
jurisdictions
ambiguity
required to re
that we would be
Many
al
of our sister
claims.
so,
See,
of a criminal
When
e.g.,
v.
solve
favor
defendant.
well.
State
have done
¶¶
life,
sentence for a crime that is also defined in felony carrying only statutes as a five- Errors in Instructions year maximum sentence. [¶ The standard for 38] assess accept 36] We are unable to Johnson’s such claim of error is well-established. reasoning regard. per in this While not all Jury jury instructions should inform the con sons whose homicide victims are children cerning applicable they law so that can sentences, cursory life receive our review of apply that findings respect law to their with case law revealed range sentences that facts; to the material instructions should be See, probation. e.g., death to State v. God particular legal written with facts and (Tenn.2001) (col sey, 60 S.W.3d 787-93 theories of case in each mind and often differ cases). lecting We hold that life sentence any from ease to case since one of several causing the death of a child is not an correct; options may legally instructional unusual sentence. give a failure to an an instruction on essential
[¶ 37] Johnson does not cite to element of a criminal offense is fundamental pertinent error, authority support confusing misleading us his conten as is a or instruc punishment imposed tion; tion that jury prop in this the test whether a has been case, sentence, erly a life necessary is cruel and unusual on the instructed elements of must have awareness criminal conduct leave no is whether the instructions
a crime wrongdoing. or consciousness circumstances under as to the doubt commit to have been the crime can be found liability is that premise of criminal Basic State, P.2d 939-10 Compton v. guilty ted. unless not make one act alone does State, 904 P.2d (Wyo.1997) (citing Miller guilty. mind is also his (Wyo.1995)). the nec- ARE YOU INSTRUCTED degree crime of 1st essary elements of the VII, arguments IV murder, your you must find from consider- in the instruc asserts several errors following ele- ation of all the evidence jury by trial court. The given the tions ments: arguments is the failure of focus of Johnson’s day the 24th 1. That on or about give adequate instructions the trial court to [August], within Natrona April while context respect specific intent County, Wyoming; State give did case. The trial court of this Defendant, did Daniel Johnson 2. The following instructions: of, attempt perpe- perpetration in the that as ARE INSTRUCTED YOU age of a child under the trate the abuse Nos. 8 and 9 the in Instruction used (16) years; sixteen “intentionally” prohibit- means the term physical intent to inflict 3. With the voluntarily, undertaken ed conduct was child; injury on a justification legal or excuse. without being; Kill a human ARE INSTRUCTED YOU de- guilty of murder the first Is following “recklessly” defined as the gree. recklessly person A acts when conduct: consciously disregards a
he substantial you your consideration of all If find from unjustifiable that the harm he is risk of these elements the evidence *16 occur, causing and the will accused proven beyond a reasonable has not been shall be of such harm results. The risk doubt, you then should find the defendant degree disregarding that it nature and guilty. not gross a deviation from the constitutes hand, If, you your the other find from on a of conduct that reasonable standard that each of all the evidence consideration person observe in the situation. would beyond proven elements has been of these doubt, ARE you YOU INSTRUCTED should find a reasonable then case, charged in it prove guilty. the crimes this the Defendant necessary to establish a deliberate is not to con- [that] ARE INSTRUCTED YOU any specific intent to kill or other intent charged there must be a stitute the crime part on the of the Defendant. elements, an act union of two essential charged general in are crimes this case specific by and a intent. forbidden law it is suffi- intent offenses whereunder more than the Specific intent means cient to demonstrate that the defendant general intent to commit the act. To prohibited undertook the conduct volun- specific in- prove a crime which involves tarily, purpose pursuing and his tent, prove beyond a prosecution must of the crimes. conduct is not element reasonable doubt: offered, presented (1) ar- [¶ 40] Johnson That the defendant did the act of, following gument support instruc- charged, and by place given the trial tions of those (2) specific it intent That he did with court: charged. in the crime described per- a ARE YOU INSTRUCTED charged, specific intent in the crime his con- son acts with intent when is murder, commit felony is the intent objective engage in scious or desire to beyond abuse, proved and must be child or to cause the result. conduct any other fact doubt as reasonable State, case; v. 892 P.2d necessary ingredient as cited Jansen intent Criminal 1131,1138 (Wyo.1995). liability, charged with of criminal and one ease, charged felony only briefly. on them The crime ment Johnson was not murder, requires present a serious crime which when the Court and counsel consid- specific question jury. intent ered a proof ques- before defen- That intent, tion was: Specific equal dant can be convicted. as “Does death child abuse implies, degree does, than why the term means more 1st murder? If it then is it if general guilty intent to commit the act. To es- that we decide of child abuse it does intent, prove automatically specific equal degree tablish the state must not first murder knowingly perpetrated that the Defendant or should the be considered a murder/death (Can it?).” attempted perpetrate upon charge? many abuse lesser circum- child, specifically intending requirement to violate the stances it is a that a criminal present jury question law. Such intent be determined from defendant be proce- all the facts and circumstances surround- dures such as that which occurred here. are, course, exceptions, the case. There but there is line, bright no and doubt should be resolved “knowingly” An act or a failure to act in favor of presence.13 the defendant’s See done, voluntarily intentionally, if done (LEXIS 1999); Stat. Ann. 7-11-202 and not because of mistake or accident or State, Seeley 959 P.2d 177-79 other innocent reason. (Wyo.1998). The trial court stated on the comparison given A instructions record, jury, and before the that Johnson requested by with those Johnson convinces present not presence was because his us that of the offered refusal instructions was requested question not and because the to be error. The not instructions offered John- purely legal/procedural answered mat- incorrect; indeed, necessarily are not son ter. interpose any Defense counsel did not they may improvement have been an objection to Johnson’s absence. Under these However, given. given, those as the instruc- circumstances, we conclude that Johnson’s tions did not run afoul of the standard of Moreover, absence was not reversible error. apply review that we in such circumstances might conjured to the extent up error as these. circumstances, from the certainly we most [¶ 42] Johnson also contends perceive it to Seeley, be harmless. 959 P.2d instructions, given, offered the at 177-79. jury separate upon two theories which the also 44] Johnson claims that the guilt Defendant’s could be based—intention *17 prosecutor improperly commented on his ally recklessly. recognized and We have right to remain silent. That comment was: general verdict be must reversed when the supportable ground verdict is on one not but obviously Now Mr. Johnson didn’t want to impossible on the other and when to police anything. tell the much of That is ground jury ascertain which upon the relied another indication that we have that he verdict, reaching its but reversal is not wrong. knew what he did If was he didn’t required when supports sufficient evidence wrong, probably know what he did was he ground. Bloomquist each alternative See v. wouldn’t have had no reservation and those State, 812, (Wyo.1996). 914 P.2d 819 We disclosing police fears about to the what produced conclude that the State sufficient Officer Jones talked about. support allegations evidence to both the The [¶ 45] State contends that comment Johnson’s acts were intentional and reckless. argument light fair in the of Johnson’s police decision to talk with the and then
Other Issues telling conflicting several stories. Johnson [¶43] There are excerpt two additional exhorts us to review this from the Johnson, issues raised argument and we will com- variety under a of standards of required object suggests Since a defendant is may play to to that a defendant no role in given jury preserve instruction to the Though in order to defense of his criminal case. that likeli- error, always cases, permitted may the defendant should be hood be insubstantial in some there present. Any to be W.R.Cr.P. 30. presumption always waiver should should be no that it is insub- clearly appear Any in the record. other course stantial. 1252
review,
prosecu-
Wyoming
pro-
The
49]
to the
Constitution
applied
[¶
be
life,
right
liberty
“In their
to
right
vides:
inherent
comment on the
to remain silent.
tion’s
However,
pursuit
happiness,
all
readily
and the
members of
are
to
conclude
we
able
1, § 2.
comment,
equal.”
human race are
Art.
the record that the
con-
from
Wyoming
provides
further
Constitution
that:
text,
comment on statements
general
“All laws of a
nature shall
(¿a,
right
his
make
to
did
exercise
1, §
These
operation.”
uniform
Art.
two
chose),
freely
voluntarily if he
speak
and
so
equal
afford citizens
provisions combine to
conclude
discussion of
as-
and we
“Equal protection
protection under
law.
error in
of a violation of
serted
the context
guarantees
people
similar
will
dealt
necessary.
right
remain
is not
silent
similarly
people in
with
and that
different
Judgment
46] The
and Sentence
[¶
though
will
as
circumstances
not be treated
respects.
all
trial court is affirmed in
State,
they
v.
693 P.2d
were similar.” Bell
Nowak,
769,
(Wyo.1985) (citing
771
Rotunda
HILL, C.J.,
opinion of the
delivered the
(2nd
Young,
Law
Constitutional
LEHMAN,
Court;
J.,
dissenting
filed a
587).
ed.1983), p.
“Equal
We have declared:
GOLDEN, J., joins.
opinion which
protection Wyoming requires
a law to
LEHMAN, Justice, dissenting,
upon
persons
property
alike
operate
whom
all
Justice,
GOLDEN,
joins.
under
same circumstances
condi-
Enterprises,
City
Inc. v.
tions.” WW
majority
holds that
statu-
(cit-
353,
Cheyenne,
(Wyo.1998)
956 P.2d
356
presents
tory
at
in this case
no
scheme
issue
Harston,
Ludwig
65
197
agree
problems.
I
constitutional
cannot
(1948)).
P.2d
I
respectfully
therefore
dissent. would
must
ability
charge
person
hold that the
We have stated on numerous occa
Wyoming
under two
“the
offers
the exact same conduct
different
sions
Constitution
more
punish-
vastly
protection against legal
with two
different
statutes
robust
discrimination
Allhusen,
equal protection
ments violates
as afforded
than the federal constitution.”
(citing
ex
Wyoming
both the
Constitution
P.2d
v. State
rel.
Wilson
Examiner,
Hearing
United States Constitution.
1253
majority
upon by
distinguishable
is
from sixteen.
The elements of child abuse here
agree
hand.
I therefore cannot
the case at
require proof
would
that Johnson intentional
majority’s
“the
with the
statement
issues
ly
recklessly
or
upon
inflicted
a child under
regard
raises
this
have been de-
years
age physical injury,
of
in this case
by
against him the
cided
United States Su-
death. The
are
statutes
identical
in the
preme
on the
con-
Court
basis
his federal
they punish
sense that
the exact same con
¶33.
by
stitutional claims.”
As noted
duct with
differing
no
proof.
elements of
LaFave, Israel,
King quot-
discussion of
Obviously, the statutes include other instanc
majority,
groups
duplica-
ed
three
but,
es of
prohibited;
conduct that are
¶
tive statutes exist. 30. This case is akin to
applied
death,
to child abuse that results in
group,
the third
where the statutes
iden-
are
they are identical. At least one commentator
nothing
tical.
is
As such “there
all ration-
opined
has
that the
Supreme
United States
scheme,
statutory
al about this kind of
as it
statutory
Court would declare a
scheme un
provides
penalties
any
for different
without
constitutional
if confronted with identical
explain
effort
whatsoever
basis for the
differing
See,
punishments.
statutes but
Wayne
LaFave,
difference.” 4
R.
Jerold H.
Tish, Comment,
Martin H.
Duplicative Stat
Israel,
Nancy King,
J.
Criminal Proce-
utes,
Discretion,
Prosecutorial
and the Illi
(1999
13.7(a),
Supp.2002).
dure
Statute,
nois Armed Violence
71 J.Crim. L.
degree felony
The elements of
first
(1980).
226,
Criminology
&
Other Juris
underlying felony
murder based
See,
dictions have drawn such distinctions.
felony
child abuse and the elements of
child People Marcy,
(Colo.1981);
v.
1254
is,
longer
pros-
That
the
pears
prosecutor’s charging
prison
decision
sentence.”
that the
arbitrary.
example, two
completely
For
is
choice of the statute which allowed
ecutor’s
identically,
persons, conducting themselves
years”
imprisonment
more than
“not
five
resulting
baby
in the death of
each shake a
providing
impris-
rather than the one
for
person
child. The statutes authorize one
the
years”
than
had
onment “not more
two
possible
of death
exposed to
sentence
to be
judge’s sentencing dis-
simply added to the
a sentence of n
exposed
the other to be
if,
example,
cretion. But what
for
one
un-
.years.
obvious
more than five
Such
no
imprisonment up
permitted
to ten
statute
identically
persons
situat-
equal treatment
years
years
made ten
the
and the other
guarantee
equal
clearly
the
ed
violates
mandatory minimum? It has been force-
protection.
case,
fully argued that in such a
where the
scheme,
prosecutor
this
the
[¶ 55] Under
actually
sentencing
prosecutor
“makes
randomly
against persons
discriminate
could
decision,
sentencing infor-
without either
to,
group they belong
simply
of the
because
sentencing,”
expertise in
or
mation
them,
he is
he dislikes
or because
because
prosecutor’s
of the
“sentencing aspect
day.
statutory
having a bad
simply
prior
distinguishes the
cases and is
choice
“furnishes
convenient
tool
scheme
equal
strongest support
protec-
the
for the
discriminatory
by lo-
‘harsh and
enforcement
argument.”
tion
officials,
prosecuting
against particular
cal
”
(footnote omitted).
LaFave,
displeasure.’
merit their
97-98
This
groups deemed to
Lawson,
352, 360,
461
103
presents
problem
pro-
v.
U.S.
the
precisely
Kolender
case
the
(1983)
903,
1855, 1860,
911
75 L.Ed.2d
S.Ct.
statutory
fessors
envision.- Under
the
Jacksonville,
City
(citing Papachristou v.
Batchelder,
possibility
scheme in
the
existed
of
839,
156, 170,
847-48,
92 S.Ct.
31
U.S.
405
very
punishments
same or
similar
the
(1972)).
prosecutor pur-
If the
L.Ed.2d 110
regardless
charging
would
levied
against
persons
penalty
a harsher
those
sues
Here,
statute.
the enormous difference be-
like,
brings
his action
about
he does not
punishments
possibility
no
tween
leaves
arbitrary
based
selective enforcement
on
punishment.
the same or even similar
Dis-
dislike).
(i.e.
prosecutor’s
the
classification
parity
equal pro-
of an
such as this smacks
arbitrary
long
prohibit-
action has
Such
been
tection violation.
See,
by the federal
Tish at
ed
constitution.
lastly
I would
mention
one other
Boles,
448,
232; Oyler v.
368
S.Ct.
U.S.
82
(1962);
distinguishable.
area in
which Batchelder
Hop-
der
distinguishable on several levels. Consider- significant differences indicated
above, majority’s I find the reliance on Bat- misplaced.
chelder
POLO RANCH and John Morris,
N. Morris and Norma B.
Appellants (Plaintiffs), CHEYENNE,
CITY OF Board of Public (Defendant).
Utilities, Appellee
No. 01-92.
Supreme Wyoming. Court of
Jan. providing vastly penal- legislative agree, Because two different carelessness. LaFave 96. I sense, ties for the exact same conduct makes no I "and even if it is not such scheme serves no only duplication can conclude that the at issue in legitimate purpose. nothing There is at all ra Surely, legislature this case is error. given if the had scheme, statutory tional about this kind of itas thought any overlap, to the it would have provides penalties for different without effort duplication. drafted the statutes to avoid La- explain whatsoever to the basis for the differ Fave, ” Id. Israel, King suggest duplicative ence consequence statutes such as these are the