Sodergren v. State

SODERGREN, Barry

(Defendant), Wyoming,

The STATE of (Plaintiff).

Appellee

No. 85-71.

Supreme Wyoming. Court of

Feb. Wyoming

stitution and the Constitution violated?

“V refusing “Did the District Court err give Appellant’s requested instructions on the lesser included offense of vehic- ular homicide? K. Nagel,

Susan Overeem Patricia Casper, appellant. for “VI Gen., McClintock, Atty. A.G. Gerald A. refusing “Did the District Court err Gen., Stack, Renneisen, Deputy Atty. John give Appellant’s requested instructions Gen., Atty. Blonigen, Michael A. Sr. Asst. P, K, and J? Hackl, Gen., Sylvia Attys. Chey- Asst. Lee Evans, County enne and J. Scott Natrona “VII Casper, appellee. Atty., Dist. Appellant “Should sentenced have been THOMAS, C.J., BROWN, penalty provision Before 31-5- CARDINE, (Retired), ROONEY W.S. 1979 6-2-106 W.S. 1983?” (Retired), GUTHRIE JJ. affirm. will 23, August In a collision between BROWN, Justice. by appellant Barry Sodergren truck driven Appellant by a was convicted Natrona and a Pinto automobile driven Mia Ol- County jury counts of two sen, passenger, Miss Olsen and a her moth- penitentiary. ap- and sentenced to the er, place were killed. collision took pealing judgment appel- and sentence Casper west of at the High- intersection of lant raises as issues: way Appellant 20-26 and Ten Mile Road. he testified that never saw the Olsen ve- “I stop stop hicle and he failed at the controlling sign “Is State v. Thomas still Ten entering on Mile Road before in denying thus the District Court erred highway. He also testified that he slowed Appellant’s per motion to dismiss for lack of down to 20-25 miles hour before enter- jurisdiction? intersection; ing however, other wit- traveling

nesses testified that he was 60 to per 75 miles hour and that he never slowed “II entering Ap- down before intersection. “Is 6-4-107 W.S. unconstitution- witness, pellant’s own a traffic accident al, therefore could not be analyst, appellant’s testified that minimum charged under that statute? speed upon entering the intersection was hour, per 32.5 miles and that it was “rea- “Ill sonably possible” that he could have been Appellant’s trial and conviction of “Does driving per as fast as 70 rtiiles hour. Ex manslaughter violate the Post Facto 10, 1982, September On a criminal com- and Due Process Clause the United plaint signed, charging appellant Wyoming States Constitution Consti- involuntary manslaughter. counts of two tution? preliminary hearing September After a on 19, 1982, appellant was bound over to Na- “iy Court; County trona District and on Octo- Appellant’s right speedy “Was to a trial ber an information was filed in At guaranteed by arraignment the United States Con- district court. on No- 9, 1982, appellant pled guilty. vember nial of motion to dismiss for day, the same the district court wrote a On lack of trial. expressing regard- to counsel letter doubts September 24, The trial commenced on jurisdiction ing the court’s over the case. 1984; 25, 1984, September an order was by appellant dismiss A motion to was filed denying appellant’s pending entered mo- 12, 1982, questioning juris- November 2, 1984, tions. On October this court en- diction of the district court. The district pro denying tered a nunc tunc appel- order letter, court issued a decision November petition lant’s for writ of certiorari and 1982, ruling jurisdic- that the court had no application stay of proceedings. On exceptions A tion over matter. bill of September 1984, a verdict was returned response to the district court decision finding Barry Sodergren guilty of two letter was entered the state on Novem- manslaughter. February 15, counts of On

ber 1982. An order of dismissal was 1985, appellant was sentenced ato term in signed and entered December 25, 1985, penitentiary. February On appeal by appellant. notice of was filed 8, 1983, entered an On June this court denying application the state’s to file order 10, 1983, exceptions; of bill and on June attorney general petition

the filed a for a assignment In his first appellant of error requesting of certiorari this court to writ invites us to reconsider Sodergren, State v. dismissing review the district court’s order (hereinafter supra, I). In that manslaughter charges. the On June manslaugh- case a divided court held that granting this court entered an order ter, 6-4-107, (Cum.Supp. under W.S.1977 § reviewing the purpose certiorari for the 1979), appropriate charge was the rather ruling district court’s could homicide, than vehicular under 31-5- § 6-4-107, prosecuted not be under W.S. 1117(a), (b), (Cum.Supp.1982). 26, 1984, (Cum.Supp.1979). June On majority expressed Because the two differ- this court rendered its decision in which a holding, ent reasons for counsel has majority Barry Sodergren held that could I as a plurality characterized be 6-4-107, under reversed the opinion. order, district court’s and remanded the case to the district court for trial. justices majority Two State v. determined Sodergren, Wyo., 686 P.2d 521 infirmity portion that there was an in a the vehicular homicide statute which ren- following For clarification the dates after portion inoperative. dered that Because of remand are set out: The trial date had infirmity appellant prose- this could not be August 27, 1984; August set for statute, cuted under the vehicular homicide 23,1984, the attorney district filed a motion proper prosecute and therefore it was for continuance of the trial date to October him manslaughter statute. One objection appellant, Over majority justice determined that the the trial date September was continued to vehicular homicide statute could be read September 1984, appellant 1984. On together manslaughter statute to filed a motion to dismiss for lack of the end that could stand. This case both trial; 13, 1984, September and on the dis- chapter history the latest in the torturous trict court denied motion to dis- relationship vehicular homi- 18, 1984, September miss. On manslaughter cide statute to the statute. filed a juris- motion to dismiss for lack of optimistic are that this case will be diction the district court and a motion to chapter. the final compel discovery. Appellant filed also State, Wyo., In P.2d Thomas v. application stay proceedings for a (1977),we held that the vehicular homicide district court him apply to enable for a “culpable neglect” statute and the Wyoming Supreme writ of certiorari to the portion the man- Court for review of the district court’s “criminal carelessness” de- slaughter proscribed existing same con- stated that an viable succinctly duct, provided penalties different for the vehicular homicide statute barred a man- conduct, repug- same and were therefore slaughter charge and conviction for vehic- State, Wyo., In nant. Bartlett v. 569 P.2d ular death. In the absence of a vehicular we held that vehicular statute, prosecution homicide for man- impliedly repealed homicide statute had slaughter proper. would have been In So- portion manslaughter “unlawful act” dergren I held that a vehicular homicide statute, at least to the extent that an act. statute did not bar a conviction for man- prohibita” “malum was involved. slaughter. Two different reasons were ex- State, Lopez 586 P.2d pressed by majority why as to (1978),in an effort to resolve the recur- vehicular homicide statute was not a bar to ring conflict between the vehicular homi- prosecution manslaughter. statutes, cide and the this holding We have reviewed our in Soder- court held: gren I persuaded and are not that we bring “In order to level out order to should reverse our determination. Under law, a chaotic state of the we hold that circumstances, manslaughter was the homicides, all vehicular short of murder proper charge.1 voluntary manslaughter, prose- exclusively

cutable violation of II We overrule all W.S.1977. contrary. decisions of this court Appellant contends in his second as ^{[*] [*]} * >t signment of error that the statute prosecuted, under which he was Perhaps Lopez the case would have final- 6-4-107, (Cum.Supp.1982), W.S.1977 is § ly settled the vehicular homicide statute- unconstitutional.2 This issue was raised manslaughter except problem statute the appeal. for the first time on In Jahnke v. statutes were amended. For more de- State, Wyo., (1984), 692 P.2d 928 we history problem tailed reconciling of the stated: manslaughter, vehicular homicide and see “ * * * Sodergren I. Our rule is that in the absence of affecting fundamental error a substan Thomas, significant It is in that Bartlett right involving tial of' the or Lopez, supra, this court determined court, jurisdiction the we do not manslaughter charge improper that a was questions sought consider to be raised existing because an viable vehicular homi- appeal. conduct, Hopkinson for the first time on proscribed cide statute the same State, (1983), provided Wyo., v. P.2d 43 penalties, but different and was cert. repugnant. therefore In those cases it is denied 464 U.S. 104 S.Ct. Wilson, Appellant suggests Sodergren Wyo. 1. that because In State v. 301 P.2d 1056 plurality opinion (1956), constitutionality was the vehicular homicide manslaughter effectively statute, 9-205, W.C.S.1945, statute effect at that time was not § was attacked. unconstitutional, although plurality declared There, appellant contended that the statute was disposed said it was. We are not process unconstitutional as a denial of due suggestion, discuss that which is now academic. act,” "culpable neglect” that the terms "unlawful The current vehicular homicide statute is 6-2- vague and “criminal carelessness” were so (Cum.Supp.1985). This W.S.1977 statute ambiguous provide as to no ascertainable stan- 31-5-1117(a), (b), (Cum. replaced § W.S.1977 guilt. dard of In Wilsonthe court its reaffirmed Supp.1982), having de- latter statute been prior determination and declined to declare the clared I. unconstitutional Here, manslaughter statute unconstitutional. manslaughter statute under which (So- (1984), Sodergren, In State v. P.2d 6-4-107, charged, (Cum.Supp. was W.S.1977 1), dergren specifically this court determined act,” 1982), also contains the terms “unlawful 6-4-107, (Cum.Supp.1979), that § W.S.1977 "culpable neglect” and "criminal carelessness.” proper prosecute statute under which to However, Wilson, supra, only slight State v. is or appellant. Appellant persuaded has not us that precedential manslaughter value because we should now reverse ourselves and declare statute has been amended since the Wilson case. this statute unconstitutional. (1983); L.Ed.2d 246 People, by Nickelson Thomas, this court in the Bartlett and (1980); Wyo., 607 P.2d 904 Nisonger Lopez cases. He complains that allow- State, Wyo., ing manslaughter 581 P.2d 1094 charge to stand Furthermore, plain expanded unless error is the criminal lia- bility exposed, to which he was present, questions concerning the consti- applying retroactively the decision tutionality we cre- of a statute are not con- post ated an ex facto law.4 Appellant’s appeal party presenting sidered on if the argument Columbia, is based on Bouie v. present them argue failed to the con- * * * ” 378 U.S. 84 S.Ct. 12 L.Ed.2d 894 tentions in the trial court. (1964). An examination of Bouie and later jurisdictional problem There is no here. cases, however, indicates that the Bouie Furthermore, appellant argued has not that preclude doctrine does not appellant from point, nor do we see a fundamental error being tried for manslaughter. trying appellant manslaughter Columbia, supra, Bouie v. two black given statute the circumstances of this college students entered a segregated appear plain case. It does not Columbia, lunch counter in South Carolina. doctrine, explained error as we in Hamp it When asked they so; to leave refused to do State, ton v. 558 P.2d 504 they arrested, were subsequently applicable significant ap here. It is violating a South Carolina pellant argue plain does not error. trespass criminal statute. After their ar- Discussing the constitutionality of the rest, Supreme South Carolina Court applicable here, 6-§ ruled remaining premise on the after a 4-107, (Cum.Supp.1982), W.S.1977 would request to leave constituted criminal tres- little, precedential have if any, value in that pass. time, Before that South Carolina statute has amend- decisions had indicated trespassory entry times, ed several and is now § necessary Merely to conviction. re- (Cum.Supp.1985).3 In urging maining on the premises request after a unconstitutional, appel- 6-4-107 is leave previously had not been deemed suf- lant, effect, again invites us to reexam- Although ficient to constitute a crime. ine our determination in Sodergren I. entry students’ lunch counter had Again, persuaded we are not we should do been made before the court’s decision and that; stated, and for the reasons decline to trespassory, had not the South Car- been constitutionality discuss the 6-4-107. Supreme olina Court sustained the convic- by application tion retroactive of its new

Ill Supreme decision. The United States appellant’s In reversed, third issue he con holding judicial Court that a deci- tends that Sodergren effected an unfore applied sion retroactively could be if expansion precise seeable of narrow and interpreted the pre- decision a narrow and statutory language by judicial interpreta expansive cise statute manner which tion, departed position from the Specifically, taken could not be foreseen. the manslaughter ly, post prohibitions In 3. 1982 the statute was amend- ex facto in the United by legislature ed and renumbered an act of the Wyoming apply States Constitutions to ac 75, 1982), (Wyoming Criminal Code of Ch. S.L. by legislative government tions branch of 1, (§ 6-2-105), Wyoming, July 1982 effective apply judicial and do not decisions. Marks v. HoweVer, 1983. before the effective date of this States, 188, 990, United 430 U.S. 97 S.Ct. 51 manslaughter amended statute the statute was (1977); Mangum, L.Ed.2d 260 and Frank v. amended, 171, again Wyoming, Ch. S.L. of U.S. However, S.Ct. 59 L.Ed. 969 (§ 6-2-106), July with an effective date of as will be illustrated Bouie v. Co 1983; thus, the 1982 amendment never became lumbia, 378 U.S. 84 S.Ct. 12 L.Ed.2d amended, again the state law. The statute was apply similar considerations do (§ 6-2-106), Wyoming, Ch. S.L. of judicial through process decisions due May and became effective clause. initially appellant phrases 4. We note post issue in terms of ex facto laws. Technical imprisoned county jail for not deci- found that the South Carolina Court (1) (Em- sion had rendered the students’ conduct year, more than one or both.” added). criminal it had been noncriminal at phasis 31-5-1117(b), when The Court said incident. the time of the (Cum.Supp.1982). deprived warning fair defendants were plurality emphasized found the two criminal since it their actions were was contradictory, clauses to be and on that scope that the of the statute unforeseeable vague found the to be basis statute might expanded in a manner. be such ambiguous. reasons, plurali- For these holding, Despite this the Bouie case ty held statute was “unconstitu- prohibit cannot all retroactive be read inoperative.” Having tional and found the For exam application judicial decisions. vehicular homicide statute to be unconstitu- ple, clearly apply does not if a this doctrine tional, the plurality then determined that: merely interpreting a statute state court is only prosecution “The statute under which Furthermore, for the time. first where could be had was the statute derogation expansive there is no decision respondent charged.” under which was existing law there can be no foreseeabil I, Sodergren supra, at 527. ity succinctly, problem, or more a fair holding contends that this warning application problem. Retroactive Lopez an unforeseeable reversal of judicial improper of a is not if the decision State, supra. agree. We cannot The rea- already provided statute fair itself Lopez ruling son for the was because the warning Thompson to the defendant. proscribed two statutes the same conduct. (6th Cir.1976). Gaffney, 540 F.2d 251 subject It was unfair to some defendants to application now turn to an felony. misdemeanors and others to a This principles present case. Bouie principle recognized in Sodergren I. Because the decision Lopez. I did not overrule could with man be fact, recognized we in Lopez that conduct separate slaughter, was based on two theo such as fall did within the man- ries, plurality we will discuss both However, slaughter Lopez statute. specially concurring opinion light found that the statute had principles enunciated in Bouie. In the impliedly repealed by adoption plurality opinion, authored Chief Justice governing vehicular homicide statute Rooney, it was held that vehicular same conduct. The vehicular homicide in effect the time of homicide statute at Lopez at issue in was later re- appellant’s conduct was unconstitutional. pealed, replaced by and was the statute provided: This statute Thus, inoperative deemed in Sodergren I. “(b) Whoever, except when the violation declaring after the vehicular homicide stat- culpable neglect or law involves of criminal unconstitutional, only ute one valid statute carelessness, unlawfully conduct, proscribe appellant’s remained to unintentionally, but with a conscious manslaughter statute. others, disregard safety causes of person plurality opinion while en- The in Sodergren the death of another I was gaged prior in the state law or not inconsistent with case law. This violation operation interpreting the applying ordinance to the or court was vehicular homi- time, regulation of a cide statute for the first so there was use vehicle or traffic, prior interpretation upon rely. no except those laws or ordinances which to Barbour, (4th relating conduct set forth in subsec- Foster v. 613 F.2d 59 Cir. 1980); Ellsworth, (a) section, guilty Crosby tion of this is of homi- 431 F.2d (9th Cir.1970). Furthermore, is the 35 there was cide .vehicle when violation upon judicial expansion liability proximate cause of death and con- no of criminal thereof, manslaughter not more statute. viction shall be fined Conduct ($2,000.00) long recog- dollars or such as than two thousand “ falling nized as within the ambit of position, His reduced to its sim- plest terms, part statute. I is that he we indi- would be convicted kidnapping only, only cated rather than for kid- prosecution that the bar to napping for ransom. This kind of in re- Thomas, Bartlett and not, view, liance is interest our entitled Lopez existing, cases an viable vehic- great to a of weight. per- deal When a Here, ular homicide statute. there was no son does an act that he well knows to be existing, viable vehicular homicide statute. law, a violation of some and when a Finally, statutory is no there conflict here interpreted statute is later to cover his since the vehicular homicide statute was way conduct in a not do does vio- reason, inoperative. deemed For this ordinary lence to understanding is Bouie doctrine not fulfilled. There is no the English language, the Fourteenth judicial interprets decision which narrow not Amendment is offended.” Knutson precise language expansive in an man- Brewer, (8th 619 F.2d 750-751 Rather, interpreta- ner. there is an initial Cir.1980). also, Nix, See on v. Welt tion in 7 of Sodergren containing a statute (8th Cir.1983). F.2d vague imprecise language. above, For all of the reasons stated Nor is Bouie violated the rationale of persuaded by appellant’s not claim. specially concurring opinion Soder- There, gren although justice agreed I. one IV charged could be with man- Appellant’s assignment fourth of error slaughter, theory was different from problem. raises a trial speedy The United plurality. that of the He argued that the Supreme recognized that, States Court has two together pro- statutes could be read “[B]y virtue Fourteenth Amend- I, Sodergren scribe different conduct. su- ment, right the Sixth Amendment to a (Thomas, pra, J., specially concurring). against trial is enforceable Much of regarding what we have said rights states as ‘one of the most basic plurality opinion applicable the special- * * * ” preserved by our Constitution.’ ly opinion. concurring This was initial Hooey, Smith v. 89 S.Ct. U.S. interpretation of a new statute. The inter- 21 L.Ed.2d 607 pretation prior was consistent with the de- manslaugh- cisions of court. this 10, 1982; ter September he was ulti- Finally, warning prob- there was no fair mately charge September tried on this lem plurality specially under either the surface, period 1984. On the of about concurring opinion. Appellant had fair twenty-five complaint months between warning that his conduct was criminal. unusually long. and trial seem would opinion did consti- However, twenty-five most this months tute depar- a “radical and unforeseeable proceedings Wyoming involved Su- existing ture from law.” United States v. preme forepart opin- Court. In the of this Wilder, (9th Cir.1982). 680 F.2d Cer- history ion we detailed the circuitous tainly any claim that this settled was a area case, this reveals from which Decem- Wyoming light of the law in is untenable ber, June, eighteen until or about opinions activity of our and the of the months, charge against appel- the criminal legislature years. in recent lant Considering was before this court. complex problems legal Furthermore, this court’s So- together specially concurring opin- with a dergren legal I did not render conduct il- dissenting opinions, ion and two it is not legal, appellant argue. nor does so He Wy- this in the unreasonable that case was however, does, complain his that conduct oming Supreme eighteen Court for months. now falls a under different statute. The faith, Eighth neglect, observations the of Circuit seems In the of bad absence particularly purposeful delay, by appropriate appeal this case. an the state witness, weigh against justify

does itself the state in reason and will a not of is a valid problem. delay. supra. a speedy Wingo, trial United States v. v. Barker (9th Cir.1984). Guerrero, 756 F.2d In trial, ap before About three weeks case, appeal, this than traditional rather pellant a motion to dismiss for lack of filed by petitions the delay was occasioned for a speedy trial. This motion was We denied. exceptions, petition bill and a of a writ have held has an that affirmative effect, certiorari, interlocutory ap- of duty speedy to make certain a trial viola State, Wyo., peal. held Grable State, tion does not occur. Cook v. filing that the of the P.2d 663 (1981). 631 P.2d Failure to fulfill that court mandate of reversal district duty operates within a reasonable time as a appellant’s right was on which to a the date appellant’s waiver. In to this case failure No speedy commenced. mandate was trial right speedy assert his trial to a until the but the and issued weighs heavily against “eleventh hour” journal 26, 1984, issued on June order were him. to the returned the district record any prejudice We cannot see to period July court 1984. A of less than delay of in trial. In because the Barker v. transpired filing two months between the Wingo, supra, possible objectives three original information commencement of obtaining “(i) speedy trials were indicated: process filing the with the of a appellate prevent pretrial oppressive incarcera- [T]o is, 1, 1982, bill exceptions, of October (ii) tion; anxiety to minimize and concern of It to is not contended November accused; (iii) possibility the to limit the delay was unreasonable. This this * * * ” the impaired. defense will be originally before the district matter was no months, applica- first two concerns have court for and before this court two here. Appellant tion was not eighteen ignore incarcerated While we will not months. trial, before there is no indication that originally the the time the case before anxiety his more concern and severe the time district court and before this court usually experienced by than an accused. appeal, principally will consider we State, supra. Grable time record was after the returned following the opinion district court in So- concern, appellant As to the third con- trial, dergren the date of the I and actual prejudiced his delay tends defense period days. sixty-eight years many because two after accident physical marks left at the scene determining right whether disappeared, had thus collision hinder- guid- to a trial was violated speedy ing ability his to have an accident recon- forth four-part ed test set in Barker v. expert testify struction on his behalf. The Wingo, 407 U.S. S.Ct. expert need for a reconstruction involves, 1) existed This test L.Ed.2d 101 regardless 2) beginning, from length delay; reason for the de- charge against physical him. The filed evi- lay; 3) right assertion a defendant’s of his 4) expert dence would need to reconstruct trial; speedy prejudice and whether in a accident would vanish matter of delay. from to the defendant resulted days, Any prejudice appel- not months. earlier, delay indicated As resulting physical lant from the lack criminal twenty-five months between the evidence at the scene is due to his failure to complaint beyond actual trial was preserve Prejudice, any, this evidence. if control, mainly of this state’s because directly can be linked to factors other than complex disposition of a case and a court’s delay by prosecution. dem- proliferation opinions. The state con support prejudice onstrates no sixty-eight days period of that only trolled claim, any. nor do we see trial time, having asked for a con four-week Barker, four-part As test in to find all of its witness tinuance in order delay, missing single es. A such as a no factor is determinative. The four reason offense, must be factors balanced a determina- er-included not a lesser-included speedy made as to instruction; tion whether trial offense it sets out the ele- Here, right been violated. involuntary ments of manslaughter and First, argument fails for reasons. several more.

he has counted time the ease was in this The jury, following court instructed court, chargeable which is not to the state. Wyoming Jury Pattern Instructions Crimi- Second, appellant right failed to assert his nal, 7.503, p. thusly: speedy trial to a until three weeks before “Instruction No. 6 Finally, prejudice alleged trial. has not “The necessary of involuntary elements linked to delay. been manslaughter are: right addition to the constitutional to a “1. The crime within occurred the Coun- trial, speedy appellant statutory claims a ty of Natrona or about the date of 45(b), Rule right. Wyoming Rules of Crim- August 23, 1982; and Procedure, provides: inal “2. The killed Defendant a human be- “By the is unnecessary Court—If there ing; and

delay charge in presenting grand to a or in “3. The jury filing against an information Defendant acted involuntarily; the defendant but who has held to an- court, to swer the district or if there is “4. culpable neglect With or criminal unnecessary delay bringing a defend- carelessness. trial, may to ant the court dismiss the “If you your find from consideration of indictment, complaint.” information or any all the evidence that of these ele- 204, Uniform Rule Rules the District proved ments beyond has not been Wyoming, provides the State of Courts doubt, you reasonable then should find part: guilty. the Defendant not “(a) It is responsibility of court and “If, hand, you on the other find from person to counsel insure to each your consideration of all the evidence speedy with crime a trial. that each of these elements has been “(b) A charge brought criminal shall be proved doubt, beyond a reasonable then days trial within following you should Defendant guilty.” find the filing of information or indictment.” Appellant’s proposed instruction B con- These rules cited tained the first four elements that were applicable only record in after the Soder- 6; instruction contained the court’s No. court, I was

gren returned to the district additionally, proposed such instruction add- before, as and mentioned trial in the dis two ed elements as follows: began days court sixty-eight trict after this culpable negligence “5. That or time. indicated in our constitutional proximate criminal carelessness speedy problem discussion trial accident; cause days sixty-eight from the return of the “6. The defendant’s conduct does not unreasonable, to trial record was not exception provided come within the period any this of time did not violate rule W.S. 31-5-1117.” regarding trial. which statute under 6-4-107, charged, (Cum.Supp. V 1982), reads: Appellant next contends that the district unlawfully “Whoever kills give human refusing request- erred in court malice, expressed B, being without or im- Q. Appellant says E ed instructions plied, voluntarily, upon a brief either sudden in his that “these three instructions passion, involuntarily, heat of pertain the lesser-included offense of or but act, Appellant’s proposed homicide.” commission of some vehicular unlawful B, except provided in instruction while characterized as a less- W.S. consequences; and the any culpable neglect or criminal indifference neglect something carelessness, culpable term means guilty is * * negligence. more than mere It means added.) (Emphasis *.” disregard the con- wantonness and a reading It is obvious from the man sequences may and indiffer- which ensue proximate slaughter cause is rights equiv- ence to the of others that is proposed by the crime not an element of alent to a criminal intent. proposed 5 of his in element driving “And carelessness reason of holding struction B. view of our speed that is or is such at unreasonable I, Sodergren reference to § likely endanger as is life or limb is not ruling in that improper. The effect of our necessarily criminal carelessness within case was the elimination of the 31-5- meaning providing of our statute Appellant’s proposed in exception. (Em- punishment manslaughter.” B not a lesser-included of struction added.) phasis instruction, in and was an incorrect fense voluntary instruction. “Instruction No. K proposed E and In his instructions “YOU ARE INSTRUCTED THAT Q, appellant requested the court to instruct the misconduct of the defendant whether jury vehicular homicide is a lesser- ‘culpable neglect’ amounted to or ‘crimi- charge of man included offense nal carelessness’ is to be determined instruction E makes slaughter. Offered from the nature of the act and not from statute, reference to a vehicular homicide consequences. its 31-5-1117(a), (b), (Cum.Supp. W.S.1977 only “Not must the misconduct be of 1979), superseded by that was the statute statute, character, grave but under the it I, 31—5— we considered By must also be willful miscon- willful. (b), 1117(a), (Cum.Supp.1982). W.S.1977 is meant either intentional miscon- duct authority sugges no for the We know of is, purposely, duct—that such as is done longer tion that a statute no in force can knowledge of such misconduct —or serve as the basis for an instruction. Fur character as to evince a wantonness thermore, did not rein disregard consequences which 31-5-1117(a), (§ (b), the 1979 statute state ensue, may rights indifference (Cum.Supp.1979)). In Sodergren equivalent of others that is to a criminal of the infirmities of vehic because added.) (Emphasis intent. statute, we determined that ular homicide “Ordinary negligence never could be of a criminal statute could not be basis misconduct, even much less will- serious case, being charge. That ful misconduct. No misconduct which is be convicted of vehicular homi could not heedless, inadvertent, thoughtless, cide; therefore, not be it could a lesser-in moment, and none which arise from an generally, Amin v. cluded offense. See willful, culpa- judgment error of can be State, Wyo., 694 P.2d 119 ble, or criminal carelessness. every “Nor will violation of a statute or a VI rule, public regulation, regulation, or a Appellant argues that the court’s refusal employer, or instruction of an con- order J, K P give proposed instructions care- stitute willful conduct or criminal They fol- reversible error. read as lessness.” lows: “Instruction No. P

“Instruction No. J THAT to “You are instructed that the defendant is ARE INSTRUCTED “YOU any charged with the violation of performed result- carelessly make an act one, ordinance, statute or vio- a criminal the careless- traffic ing in death not, of gross, implying lation of a traffic ordinance will must have been ness itself, culpable constitute criminal neg- told jury how to view the evidence ligence.” indicating appellant speeding had been that he stop sign. pro- had run the These We are not convinced that posed unduly emphasized instructions one objection give to the court’s refusal to aspect of the evidence and were otherwise proposed these instructions was sufficient- improper. cases by appellant The cited ly specific 31, comply to with Rule W.R. only minimally support position, 51, Cr.P. and Rule Wyoming Rules of Civil therefore will not be considered. spirit policy Procedure. The of these “apprise rules is to and inform the trial properly give The court refused to court of purpose of the offered instruc- appellant’s J, proposed instructions K and objections tions and of proposed to instruc- P. portions instructions, The of these may tions so opportunity that-he have an to law, which were correct statements of the amplify correct and them before submis- were given embodied in other instructions sion jury.” State, to the Wyo., Alberts v. by the court. 447, (1982). 642 P.2d 453 than Rather ana- lyze appellant’s however, objections, we YII will address the issue propriety of assignment In final of appellant’s proposed instructions. error he contends he should have been jury was as instructed 31-5-1117, sentenced under W.S.1979or “§ necessary involuntary elements of man 6-2-106, W.S.1983.” Section 31-5-1117 § slaughter, and the of definitions “involun was the vehicular homicide in statute effect tarily,” “culpable neglect” and “criminal appellant when was in charged first 1982. carelessness.” These instructions Section was the in 6-2-106 effect at W.P.J.I.C., 7.508, 7.503, found in 7.510 §§ sentenced, time February (1978), and were based the cases cited contended Having therein. jury instructed the on the throughout appeal his trial and that he general principles of applicable law in this charged should have been with vehicular case, discharged the trial court duty. its logically homicide. Before could rule State, Wyo., (1977). Benson v. 571 P.2d 595 should have been sentenced An instruction does not to be have worded under Sodergren I should be exactly requested by party long as as again say compelling overruled. We no given correct statement of to law why reason has been shown we should do jury. State, supra; Alberts v. this. State, Scheikofksy Wyo., v. P.2d 1107 636 Appellant’s argument he should (1981). have been under sentenced 6-2-106 is A trial properly court refuses 6-l-101(c), (June based on 1983 unduly emphasize instructions which one Replacement), provides: which aspect State, of the evidence. v. Ellifritz pending “In a on or case after effec- Wyo., (1985); 704 P.2d 1300 and Evans v. date, involving tive a crime committed State, (1982). Wyo., 655 P.2d 1214 “The date, prior penalty to the effective if the weight given any particular portion to be for under this act the crime is different argue evidence is a matter for to counsel law, penalty prior from under jury and for the to decide.” v. Hum State impose court shall the lesser sentence.” bolt, Kan.App.2d 562 P.2d State, Wyo., Attletweedt P.2d (1977). An instruction not tell should (1984), this court said: jury weigh particular piece how to “ * * * evidence, Lee, legislative State v. 221 Kan. We conclude prior P.2d 1096 nor how decide an intent is to the law in effect have July aspects ultimate factual issue in a Britton case. 1983 control all State, (1982). Wyo., Appel prosecution 643 P.2d 935 a crime in which instructions, proposed essence, date, prior lant’s its elements to that occurred charge respect to the finding guilt with single exception any original with a — manslaughter, and under those circum- July imposed after 1983 must sentence prejudicial error I do not discern stances provided of that for the be the lesser give these instructions the failure to and the where the new code old crime light prior decision of the court diverge.” code supra. Sodergren, State v. 6-l-101(c) apply in this does not Section with, Appellant was case. Justice, CARDINE, dissenting. of, involuntary manslaughter. convicted my the current statutes for the reasons stated previous dissent Both provide dissenting found State v. Soder proscribing twenty years in the state 686 P.2d 521 at 539 up gren, sentence 6-4-107, W.S.1977 penitentiary. Section 6-2-105(b), (Retired),

(Cum.Supp.1979) GUTHRIE, specially W.S. Justice Thus, (June Replacement). concurring. diverge, the old code do not new code and reluctantly I concur. 6-l-101(c) entirely inapplicable. making § strong disagreement I with the have application Appellant’s interpretation disposal preceding case 6-l-101(c) inappropriate; he was Wyo., Sodergren, 686 P.2d 521 of State v. of vehic- charged with or convicted never participant in its and had Appellant properly sen- ular homicide. joined the dissents of disposal, would have statute. tenced my It is view Justices Rose and Cardine. ingenious, Appellant presented seven disposition accept I must as the arguments, none of which well-reasoned applicable to this case. law insofar as it is thrust of the principal are irrational. proper judi- a fair and I do this because III, I, II, V and VII is arguments in issues recognize the force and system cial must I. We should overrule that we application of the doctrine of stare decisis. persuaded that we should. are not improper indulge my- Thus it would be carefully examined We have my explanation personal in an views self appeal, and find no seven issues raised on as contrasted to that case. error. reversible Affirmed. C.J.,

THOMAS, specially concur- files

ring opinion.

GUTHRIE, (Retired), specially files a J.

concurring opinion.

CARDINE, J., dissents. DeJULIO, Representa as Personal Rick DeJulio, of Eric J. tive of the Estate THOMAS, Justice, specially con- Chief (Plaintiff), curring. Be- in this ease. I concur in the result I articulated position (Defendant).

cause FOSTER, Appellee Joe W. Sodergren, separate opinion in my State No. 85-164. (1984), I believe that it P.2d 521 Wyoming. give Supreme Court appropriate to have been would on the lesser includ- requested instructions March I have homicide. ed offense of vehicular position. from that not receded satisfied, however, evi-

I am jury’s is sufficient to sustain

dence

Case Details

Case Name: Sodergren v. State

Court Name: Wyoming Supreme Court

Date Published: Feb 26, 1986

Citation: 715 P.2d 170

Docket Number: 85-71

Court Abbreviation: Wyo.