State v. Keffer

fore, to attach a written record the failure disputed disposition of

of the trial court’s report re presentence

information remand.

quires only a limited United (10th Gattas, 862 F.2d

States v.

Cir.1988). duty hold this ministerial We attaching by either be corrected hearing pages sentencing from the

relevant by appending the trial court’s written

findings regarding disputed informa report. presentence

tion to the Jackson, (10th 950 F.2d

States

Cir.1991); Kramer, F.2d at 1553. task,

Upon completion presen- of this report

tence and attachments are to be Department

forwarded to the of Correc compliance Wyo.Stat.

tions in 7-13- § (1987 Cum.Supp.1993). &

IV. CONCLUSION

The careful review of the substantive procedural contentions of error made made,

by Mehring reveals that he with the counsel, competent

assistance of two volun-

tary pleas to sexual assault in the degree. justice sys-

second The criminal Mehring every necessary pro-

tem accorded safeguard process.

cedural to insure due accepting plea bargain, Mehring avoid- strong possibility

ed the more of even se- crimes, penalties despite

vere for his

fact that his sentences those exceeded rec- plea bargain.

ommended .

We affirm and remand for the limited

purpose opinion. noted Plaintiff, Wyoming, STATE KEFFER,

Lola Mae Defendant.

No. 91-9. Wyoming. Court of

Sept.

1H9 Gen., Joseph Meyer, Atty. Sylvia Lee B. Gen., Hackl, Cook, Deputy Atty. Dennis C. Gen., Atty. plaintiff. Senior Asst. Wyoming Program: Public Defender Defender, Wyatt Skaggs, R. State Public for defendant. C.J., THOMAS, MACY,

Before and JJ„ CARDINE, GOLDEN, and and URBIGKIT, J., Retired.

THOMAS, Justice. case, brought

In this to this court Wyoming Bill Exceptions, State of (State) that, in a seeks determination murder, the prosecution degree for second instructed State entitled to have the manslaughter as a lesser crime of court, upon included offense. The district (Keffer), con- objection by Lola Mae Keffer by the requested cluded the instructions on the lesser included offense of State given. not manslaughter should submitting a ruled district court in- written “waiver of included structions,” prevent Keffer had the pursuant to giving of such instructions (Wyo.1984). Eckert court also the evidence district found support giving in the case would not included of- instructions on a lesser major the State’s fense. The thrust of whether, submitting such a concern is waiver, in a case can criminal a defendant included of- giving veto the of the lesser the dis- We hold that fense instructions. refusing give in trict court erred on the offense instructions case. manslaughter crime of this excep- drew from the bedroom and presented this bill blocked The issues reaching telephone. from husband proceeding are: tions Wyoming gun is enti- Keffer the State of removed from her hus- Whether living dresser. She walked into the lesser included band’s instructions on tled to single room and cocked the action revolver Defendant waives where the offenses telling trial, while Jackson to leave. At the writing objects instructions in said Keffer testified she shot Jackson with a .44 manslaughter instructions giving magnum point hollow bullet self defense charges the information second de- Jackson menaced and threatened murder; gree Jackson, her. After the bullet struck he Judge Whether the District Court God, exclaimed: “Dear I never would have usurped jury’s function to determine you.” day, hurt The next Jackson died by ruling facts that the evidence of shock, hypovolemic the extreme loss support finding self defense could not of blood caused when the bullet lacerated a killing that no malice existed but major vessel. abdominal blood justifiable. Keffer was with second Keffer, proceeding, in this as the defendant purposely maliciously, murder for way: states the issue premeditation, killing without a human be- pros- murder Whether a second Wyo.Stat. ing in violation of 6-2-104 § ecution, voluntary an instruction on man- trial, (1988).1 During the the State intro- slaughter automatically given must be identifying duced witnesses and evidence support the evidence could not where demonstrating Jackson as the victim and he conviction for the crime. lesser single gunshot died as the result of a gun range by wound from fired at close 3, 1990, August On Keffer shot and Keffer. Jackson’s widow testified he was nephew, killed her Duane Jackson. Jack- preparing to take Keffer to court for fail- went to Keffer’s home in Laramie son ing pay repair him for the A auto work. asking money. around 10:00 P.M. for On that, during co-worker of Keffer’s testified occasions, previous complied Keffer had prior lunch about nine hours to the shoot- demands, giving money him with Jackson’s ing, appeared agitated upset Keffer and a small inheritance and her tax re- from coming she knew Jackson was paid fund. also had Jackson to do She night. her home that The co-worker testi- occasion, repair some auto work. On this prepared fied that Keffer said she was for however, Keffer decided that she would gun Jackson’s visit and had a with “bullets request refuse Jackson’s and would use an thing that have this beebee on the end of it recording tape audio of his behavior to seek separates gets body.” it arrived, restraining order. Soon after he recorder, tape discovered the Jackson was instructed on the elements Keffer, stopped tape, and shouted at upon of second murder and the law your game.” “I’m on to little Keffer relating to self defense. The re- State grabbed the recorder and ran into her bed- quested instructions on the lesser included get manslaughter, they room to out of Jackson’s reach. offense of but were followed her into the objected When Jackson bed- refused the court after Keffer room, handicapped signed Keffer directed her hus- waiver of a lesser and submitted police. to call the then included offense instruction.2 After band Jackson with- delib- State, (1988) patterned Wyo.Stat. provides 6-2-104 as fol- 2. The waiver was after Eckert v. § (Wyo.1984), 680 P.2d 478 and read: lows: A. OF STATEMENT ATTORNEY purposely maliciously, Whoever and client, I, my Wyatt Skaggs R. have advised any being premeditation, without kills human Keffer, intelligent appears Lola who and of guilty degree, of murder in the second right request sound mind of her instruc- imprisoned penitentiary be shall jury concerning tions to the the lesser includ- (20) twenty years, term not less than manslaughter. have further ed offense of I during life. manslaughter poten- advised her that carries a explanation hours, jury re- or an of that factor called three erating less than charge mutuality. way And I read Eckert is of the turned a verdict properly Bill of Ex- that if a defendant if informed degree murder. This of second advised, brought fully to resolve the wishes to waive was ceptions then includeds, dispute then is enti- presented by the lesser defendant questions of law The [Sjtate on the to do so. did not choose right to the instruction tled over manslaughter manslaughter. charge so in that sense offense of included has the case been defended on the basis that, v. argued under State The State charge second murder (Wyo.1981), P.2d 786 both Selig, 635 [Sjtate charge, did so the court which op- equal an the defendant had State and waiver is effective concludes included offense portunity to compliance is otherwise with State waiv- argued Keffer that her instructions. given and should effect. Eckert Eckert, er, precluded the rule of under requesting premise, the lesser State the court also As an alternate response trial, that, instructions. The based the evidence at ruled was Jahnke any significant State has not been evi- “there subsequent to (Wyo.1984),decided manslaughter P.2d 911 to the directed form of dence Eckert, analysis validity Selig killing in the requested, namely that is mutuality respect component passion.” heat of reaffirmed. court erred We hold court, acknowledging while The district give the refusing to request instruc- right of sides to both ground on the that Eckert af- instructions offenses, ruled that on lesser included tions the defendant the to waive forded accompanied objection by such them and the State would be bound entitled by appropriate Eckert waiver Properly does applied, a waiver. Eckert included to veto the lesser the defendant to in a affording not extend a defendant Ruling in favor of instructions. right case the of veto of lesser criminal Keffer, that the the district court ordered Affording included offense instructions. vol- included offense instructions on effectively interpretation abro- Eckert that manslaughter given. untary would not be adopted in mutuality rule of Sel- gates the judge distinguished the rele- district justify the the evidence would ig. Whether way: in this cases vant instance is giving of the instructions this that, out, me, question, also hold post- to a a difficult but we carves seems Eckert record, instruc- of exception any reading Selig, to of under the evidence Selig my my up twenty years Wyo- have advised penalty submitted on behalf and of to in the tial ming Penitentiary. theory ad- attorney proceed Women’s I have that the State to under the likely manslaughter be a only her that would vised either there had facts established compromise verdict trial. taking of life purposeful and a malicious been FURTHER, should I have advised her that or was self-defense Jackson that it of Duane of second murder she be convicted penalty offense of therefore the lesser included likely penitentiary sen- would pur- manslaughter apply does in this case not years. twenty She has of tence of minimum State, v. the dictates of Eckert suant to me that she wishes no advised (Wyo.1984). further understand P.2d 478 I behalf on her offense instructions submitted jury compromise a man- that should defense, I by prosecution, the Court. or time, any, my penitentiary if slaughter verdict waiver is irrevoca- advised her that her have lower if I were convicted be much than could appeal as set Eckert v. ble on forth re- where I would of second murder (Wyo.1984). P.2d 478 twenty years I received ceive at least if December, day 1990. DATED this 3rd of penitentiary term. (s) Skaggs Wyatt R. Wyatt R. my decision here understand I further Skaggs Eckert, under Id. irrevocable Attorney for Defendant December, DATED, day this 3rd OF KEFFER B. STATEMENT LOLA (s) Keffer, M. Keffer I, intelligently Lola knowingly and Lola my Lola Keffer hereby right in- waive to have lesser do manslaughter Defendant cluded offense instruction included of vol- language tions on the lesser We are satisfied the Appli- giv- untary manslaughter should have cation this sufficiently parallels been instance language Exceptions en. of the Bill of make flaw in certification at most an consider the Bill We first whether prevent irregularity and does not this court Exceptions properly court. before this assuming jurisdiction. returned, After the verdict was followed primary question We address first acquittal, judgment prosecuting The trial waiver. court ruled attorney Exceptions a Bill of submitted Eckert, holding of our if properly in Wyo.Stat. pursuant the district court advised, fully formed and Keffer had the (1987). only 7-12-102 This method is the § to waive any instruction on State to seek available for the a determina offenses, doctrine mu similar, governing any pend tion of law in had, extent, tuality abrogated. been ing Heberling, or future case. State Wyoming, convictions for lesser of Wyo.Stat. (Wyo.1976); P.2d 1043 7-12- § are fenses authorized rule. “The defen The decision of this court dant be found of an offense pursuant review to a bill of does exceptions necessarily included in the offense charged not affect the in Kef- verdict attempt or of an to commit either the of Wyo.Stat. way. fer’s case in 7-12- § fense necessarily or an offense 104(b) (1987). attempt included therein if the is an of There requirement Wyo.R.Crim.P. 31(c) (codified fense.” exceptions present Wyo.R.Crim.P. that the bill of must be trial) time of 32(c) ed certify to the trial correct Wyoming 31(c) [hereinafter Rule Rule ness of its contents before it is filed with 31(c)]. language Our rule identical Wyo.Stat. this court. 7-12-102. § [hereinafter Fed.R.Crim.P. 31(c) Federal instance, imperfect the certification is be and, reason, for that federal Rule 31(c)] judge cause what the district certified was interpreting court decisions Federal Rule “Application for Permission to File Bill 31(c)represent highly persuasive authority. Exceptions,” Excep the “Bill of Jahnke, also, P.2d 911. See B & W tions” itself lan certified. The Glass, Inc., Inc. v. Mfg., Weather Shield guage of the document that was certified is 1992); (Wyo. Apodaca 829 P.2d 809 parallel language “Bill of State, (Wyo.1981). 627 P.2d 1023 The de Exceptions” so that the flaw in the certifi scription necessarily of an offense included is, most, cation an irregularity that does in set charged forth in Rule preclude in jurisdiction this court. Sel- 31(c)perhaps makes conventional reference ig. addition, In certified document to a “lesser included offense” somewhat incorporate Exceptions” does the “Bill of imprecise, but we shall use that familiar attachment, so, conceptu reference and reference for our discussion. ally, the would to certification reach both Wyoming standard in for deter- question documents. There is no that the lesser entitlement to a included of- deter of judge Excep district the “Bill to whom is drawn from the standard in the presented certify tions” was intended to Chap- federal courts. States v. United the “Bill Exceptions” because the same Cir.1980), Chap (10th 615 F.2d attorney represented who had Keffer at cert, cert. trial appointed argue was to the case (1980) 64 L.Ed.2d 827 (quoting United Wyo.Stat. against the State. 7-12-103 § (8th Cir.1977), King, 567 F.2d 785 States (1987). cert, cert. statutory jurisdiction (1978)), The conferred L.Ed.2d 542 United States upon respect Appeals this bill Tenth court with to a of Court for the Circuit ar- exceptions substantial, requires required than these elements in order rather ar strict, compliance. a lesser justify State ex rel. to instruction on Gibson Cornwell, Wyo. 85 P. offense: made; kert, (2) at 480. The trial

(1) court did proper requested give manslaugh are identi- not State’s of the lesser offense elements waiver, greater ter instruction because of Eckert’s of the part cal to elements object the State did not offense; (3) evidence that and Eckert there is some giving to waive the of the instruc of the lesser- of- elected justify would conviction manslaughter. strategy, Eckert’s fense; (4) or tion on proof on element however, successful, was not and he differentiating the two crimes was degree murder. jury in convicted second He sufficiently dispute so that the that, appealed, contending despite may consistently defendant inno- then his find the waiver, duty the trial court had a in guilty and to cent (5) offense, manslaughter. and on lesser-included there struct i.e., charge may mutuality, be demand- conflicting principles converge States or the ed either right were the defendant’s to in Eckert defense. present theory his of the case and the Chapman separately stressed The court in 31(c) preserved permitting principle Rule that, no if trial evidence demonstrates “necessarily the instruction on included” could rational which basis theory Eckert’s was he was offenses. guilty of the in- find the defendant murder he degree either of second n offense, the need not be cluded instruction defense, he had acted self contended in Chapman given. The elements outlined it was inconsistent offer instruction 635 P.2d 786. adopted Selig, were manslaughter, apparently fearing the on might encouraged compromise. permitted pursue the State to court issue defendant en- was whether the exceptions Selig proceeded a bill right to waive an instruction on a joyed if the court erred in to determine trial reviewing his lesser included offense. refusing give included offense conviction, court Eckert had reasoned for second murder and instructions judicial process no subvert manslaughter requested by the voluntary initially waiving an instruction Selig only prosecution. charged had been contending appeal despite then on counts of first murder. with three waiver, duty Spe- there to instruct. explained purpose The court cifically, the held “that a defendant prosecution if is both aid 31(c) Rule effectively an instruction on a can waive fails proof presented at trial to estab- he long as does charged all the elements of the lish impediment to knowingly and there is no so give offense and also to the defendant Eckert, P.2d at 481. In waiver.” such less alternative than a of a drastic benefit Eckert, arriving at the ratio decidendi acquittal conviction and choice between however, imperative recall that the Selig. We held that offense. requested had the in- although it requested have instruction should been struction, object Eckert not when elect- did given Chapman all five of the to waive. ed present satisfied. were and Sel- elements holding of is that neither ig. Selig Eckert, mentions only Selig In the court in a has a unilateral side criminal case noting parties agreed ab- in that the all-or-nothing ap- go

to to the on an desires, on an instruction sent Eckert’s proach. appropri- manslaughter been would.have were not distinguishable. Chapman Eckert was ate. five Eckert murder, Mutuality was applied and in the Eckert case. charged with second impediment of the an there because requested a lesser included of not the State object when the trial manslaughter. Eckert failure of the State fense instruction the in- instruction, permitted Eckert to waive contending the objected to that rule limited “either Eckert that there had struction. facts established can holding defendant waive that the taking of the life of purposeful been lesser included offense. on a self-defense.” Ec an instruction deceased or that was language It does not hold that such Chapman, waiver forecloses is consistent with however, requesting obtaining “part” may the State from and an if the word mean Jahnke, appropriate in an case. Balsley instruction Neither some. 692 P.2d theory does hold that of the Chapman Eckert case and element two of the formula presented by applied, were voluntary simulta- and we determined neously prevent presentation appar- manslaughter is a lesser included offense ently request- Jahnke, inconsistent instructions first murder. we prosecution. ed The trial also dealt court’s with third element of the application element, of Eckert in case Chapman this reflects test. The stated respect Chapman quoted erroneous conclusion Selig, with and is that holdings in Eckert. We are satisfied that there be “some justify evidence that would not justify give Eckert does the failure to conviction of lesser offense.” Selig, the lesser included offense instruction in 635 In Jahnke, limiting P.2d at 790. explanation this case. pre third element was “ resorting prior sented law: case ‘the acknowledge We that confusion over the only give court should such instruc proper in evaluating standards to invoke tions as from the arise evidence and that mutuality which and offenses are ‘‘neces when the evidence shows that the defen sarily charge included” within a is under guilty dant guilty is either or not of the Wyoming prece standable. and federal higher grade offense, the court is dent share a diverse collection often- required not to instruct on the lesser of rules, analyses, criticized and results. The ” Jahnke, fense.’ (quoting 692 P.2d at 920 Supreme Court of Iowa said that the lesser State, (Wyo. Oldham v. 534 P.2d “fraught included offense doctrine is 1975)). confusion because of the doctrine’s elusive application. ness in State, (1985), its definition and In Amin v. ” Jeffries, State v. 430 N.W.2d 730 the Balsley approach was Amin invoked. (Iowa 1988). A applicable prece review of aggravated was robbery convicted dent discloses failure to achieve a clari kidnapping, appealed and she the denial of approach fied adjust and the need lesser included offense instructions for the failure. simple assault, battery, offenses of reck- endangering, larceny, simply less rob- consistency There is not a clear in this bery. comparing After ele- applying court in Chapman elements. ments, assault, simple the court held that In Balsley v. 1324 (Wyo. 668 P.2d battery, endangering and reckless were not 1983), which the first case to follow aggravated included offenses of rob- referred Selig, we to the elements articu bery kidnapping. Amin. In consider- Chapman analyzing lated whether ing question whether there was evi- by vehicle homicide was a lesser included justify dence that would conviction for aggravated offense of homicide vehicle. offenses, of the claimed lesser this court Specifically, the court on the focused sec required stated the view of the evidence in Chapman requires ond element which this way: “A defendant is entitled “the elements of the lesser offense are included offense instructions ra- part identical to of the elements of the tional permit view of the evidence would greater Chapman, offense.” 615 F.2d at finding guilt of the lesser offense and appeared 1299. We make standard Amin, offense.” more strict when we said a crime is not 694 P.2d Using at 123-24. this standard as necessarily included within another statuto stated, we held that no evidence trial ry offense “unless all of the elements with justified any instruction for lesser included in the claimed lesser offense are to be State, offenses. Amin. See also v. Amin greater, found in great and unless the (Wyo.1985). 695 P.2d 1021 er cannot offense be committed without committing putative State, also lesser of 232 Seeley (Wyo. v. 715 P.2d Balsley, 1986), fense.” 668 P.2d 1329. This three different formulations were in because, lesser of error standard had to be followed to deal with a included voked requested trial judge rule was restated after the denied the Balsley fense. instruction, “every objection the lesser offense element of no had been read defense greater, held, however, is one included in the that preserved. must be We the instruc greater offense without commit the in request cannot could reviewed tion without necessarily committing the lesser of also voking plain error Keller. standard. That rule Seeley, P.2d at 238. fense.” reasoned that a lesser included offense We degree second applied determine was justified by if required instruction degree sexual assault were and third request and the counsel record defense degree of first sex included offenses lesser sufficiently ex for the instruction had they incorporated ele because ual assault justified plained it and it without more ar degree in first sexual not included ments applied gument. Keller. The court then Furthermore, Seeley. invoked we assault. Chapman elements deter the five at Chapman to hold that requested lesser of mined included a lesser sexual assault was not tempted trespass instruction on criminal was fense degree sexual as offense of first included supported the evidence at trial. Keller. Seeley. Finally, the for evidence sault. later, eight v. months in Muniz Some applied found in Amin was mulation State, (Wyo.1989), the court 783 P.2d theory of the under the defense hold object that the failure to at trial to the held sup case, were not instructions on assault included of a lesser denial ported. Seeley. unless precluded instruction review offense was This seems plain present. error result cases, first in this For the time line diametrically opposed to Keller. appellate standard the court defined a State, in 755 P.2d 855 review Miller v. ahead, Moving the court alluded to The standard was abuse (Wyo.1988). in- Wyoming’s nature of lesser unsettled determining in of the trial court discretion Craney v. jurisprudence cluded offense deny included offense a lesser whether State, (Wyo.1990). Without 798 P.2d 1202 court referred to the instruction. The instruction, noting origin elements as “established Chapman applied Craney Seeley formulation was instructing jury” lesser standard for on sexual assault to hold third Miller, 755 P.2d at 865. included offenses. first not a included offense of was however, there, analysis focused was sexual court ruled assault. supporting on lack of instruc- evidence third de- giving trial instruction on aiding abetting manslaughter. tions plain error. gree sexual constituted assault Miller. proper was the stan- Craney. Plain error State, Later, in P.2d 91 v. Eatherton review the instruction was dard of er- (Wyo.1988),we held it be reversible made, was as dis- objection and no allowed deny requested trial for the ror in which tinguished from the earlier cases included instruction when all offense was lesser included offense instruction Chapman elements were satisfied. five State, v. offered denied. Pearson State, (Wyo.1988), P.2d 980 Driskill v. Chapman 1144 (Wyo.1991), P.2d Chapman invoked the five elements. also ruled and the court applied, elements were however, year, The next Loomer simply sup- did not that the evidence State, (Wyo.1989), P.2d the test requested port applied in Balsley was to deter- articulated State, Then, in Derksen v. instruction. portion kidnapping mine if a statute (Wyo.1993), plain stan- error a lesser created included offense. applied to determine dard review on the crime (Wyo. given instruction In Keller 771 P.2d 379 immoral, effect, immodest, lib- 1989), court, indecent taking a de utilized as a lesser with a child proper appellate review the stan erties novo second assault lesser included of of sexual dard for review for argued plain degree improper. The there fenses. State 1128 four Fitzgerald is that the federal courts reinstated

Our witness elements. also, Rafaelito, See repeatedly peered murky United States v. have into waters 946 analyzing “necessarily (10th Cir.1991); what offenses are United States v. F.2d 107 Court of Dennison, (10th included.” In the United Cir.1991), States 937 F.2d 559 — Circuit, a denied, Appeals U.S. —, the Tenth formula cert. 112 S.Ct. adopted tion was that has become known (1992); 116 789 United States v. L.Ed.2d relationship as the test.” (10th “inherent Leopard, Cir.1991); F.2d 936 1138 Pino, (10th United v. F.2d States 606 908 Haar, United v. (10th States F.2d 931 1368 Cir.1979), Unit Cir.1991); adopted test was from v. Young, United States 862 Whitaker, 447 ed States v. F.2d 314 (10th Cir.1988). F.2d 815 (D.C.Cir.1971). evolving The doctrine uncertainty The evolving from various Whitaker requires consideration of the in precedents application and variable sug- relationship herent between crime gests necessity for a restatement of the proven lesser offense rule. emerges This demand from a need permitted trial. That doctrine defense for a rule consistently clarified that can be greater requesting freedom in applied (1) determining: courts what cluded given offense instructions than was offense; (2) is a lesser included when prosecution, dispensing thus it; (3) should a court instruct on Chapman Whitaker. mutuality. then challenged, what proper appellate is the Pino, year one was decided after and it Jeffries, standard of review. See 430 departed relationship from the inherent N.W.2d 728. standard to favor the five-element test. completed analyses Tenth had not Circuit its From similar the foregoing, efforts, however, and, in United States v. have ap- commentators identified three Zang, (10th Cir.1982), cert. 703 F.2d 1186 proaches singularly which are used or in nom., States, denied sub Porter v. United various combinations to determine whether 78 L.Ed.2d 107 a lesser included offense instruction will be (1983), it returned to the inherent relation given. approaches three Those are: ship test. statutory interpreta- common law strict method; tion the cognate theory; and the later, adopted Still Tenth Circuit penal approach. model code Christen R. formulation, again third without stated Blair, Constitutional Limitations on the Fitzgerald mutuality component, Doctrine, Lesser Included 21 Am. States, United (10th Offense 719 F.2d 1069 Cir. (1984). Crim.L.Rev. 445 1983). Fitzgerald The four-element test requires only: statutory interpretation strict meth (1) A proper instruction], [for od generally Balsley follows the standard (2) The lesser included offense consists requiring all of the elements some, all, but of the elements of offense must found charged. the offense greater. Balsley, ap 668 1324. This (3) differentiating proach statutory element the two looks elements of dispute.

offenses is matter in regarded crime and is as the most clearly apply. (4) stated easiest Janis A jury rationally could convict the Ap Reasoned Ettinger, L. Search the lesser offense and proach Offense, to the Lesser Included 50 acquit of the offense. United BROok.L.Rev. 191 readWe Fitzgerald, 719 F.2d at 1071. — Dixon, States v. —-, U.S. S.Ct. Cooper, United States F.2d (1993), 125 L.Ed.2d manifest (10th Cir.1987) marked a brief return to the ing approach statutory standard, relationship inherent one the Court Fitzgerald proven elements have the most States upon. has settled Joe, durable. United States v. 831 F.2d denied, (10th Cir.1987), cert. perceived rigidity Criticism the (1988) led, however, L.Ed.2d elements method defend, or, explain, in cognate uttered to either development of a more liberal way, protection Under this formula- mutate the accorded some approach. Jeffries. alleged in tion, facts court looks in against jeopardy. double The words (cognate-pleading accusatory pleading are It Wyoming’s pro constitution fewer. actually proven at facts or approach) person put in shall be twice vides: “nor along approach), (cognate-evidence Wyo. jeopardy for same offense.” making this in statutory elements with the Const, 1, It art. 11. assures same § a lesser includ- to whether determination the federal protection as constitution. Blair, present. supra. ed offense (Wyo.1983), v. 664 P.2d 43 Hopkinson theory encompass cognate-evidence would denied, 908, 464 U.S. rt. S.Ct. ce adopted Chapman elements as the five 262, (1983). 78 L.Ed.2d 246 Wyoming. and, subsequently, used Selig sep- often iterated that three It has been Penal the Model approach, The third protections encompassed are within arate most liberal. approach, is indeed the Code jeopardy provision. protects “It the double the lesser It the instruction allows prosecution a against second for same proof of included offense is established acquittal. protects against It offense after re- or than all of facts the same less prosecution second for same offense a offense; or when quired greater for the protects against And it after conviction. attempt or offense consists of an the lesser multiple punishments for the same of- solicitation; or difference be- when the Pearce, only respect Carolina fense.” North v. tween offenses injury 2072, 2089, or a injury or risk of less serious 89 S.Ct. S.Ct. of- culpability establishes a lesser (footnotes omitted). (1969) 23 L.Ed.2d 1.07(4) (1985). Code Model Penal fense. concurring opinion § Douglas, in his Justice adopted, widely This test has not been Pearce, U.S. at in the “inherent partially incorporated it is theory of that “the double summarized Whitaker, 447 relationship” standard. See run person that a need jeopardy is F.2d 314. gantlet only once.” making for selection of standard in- identify a lesser analysis a determination as whether to be used for given cluded offense instruction should must accom ing a included offense of these more than a choice of one demands scope jeopar to the initial double modate overlooked constraints approaches. Often granted a criminal dy protection defen analysis the federal each method of are on for a criminal violation classi dant “once principles constitutional double and state another, offense of fied as lesser included process, Rather jeopardy, due and notice. traditionally treated as two have been arbitrary selection, an the choice of than an purposes for of double the same offense a lesser approach as what constitutes supra, Ettinger, 219. jeopardy.” offense must accommodate be, sequence may the Fifth “Whatever these constitutional mandates. prosecution forbids successive Amendment punishment and cumulative establishing the to a After offense.” Brown indictment, the Fifth presentment S.Ct; 2221, 161, 169, Ohio, 432 U.S. to the Constitution the Unit Amendment Under 53 L.Ed.2d 187 any person be directs: “nor shall ed States voluntary if jeopardy, doctrine of double to be twice subject for same offense manslaughter is a lesser included life or Ben put jeopardy of limb.” See murder, acquittal of second 784, Maryland, ton prevents a degree murder charge of second (1969)(making double 23 L.Ed.2d 707 voluntary man charge later trial on the Fifth Amendment provision of jeopardy incident. involving the same slaughter through Four applicable to the states long in the favored has been Amendment). This result brief words teenth These Jahnke, See many more that have been law. spawned have 359, 366, uncertainty 673, 459 judicial some was man U.S. 103 L.Ed.2d After S.Ct. 74 Corbin, 508, in Grady (1983). 495 U.S. punishment ifested 535 The cumulative (1990), 2084, 548 110 109 L.Ed.2d analysis S.Ct. must be in light made the —Dixon, overruled United States v. dichotomy approach Supreme of the U.S. —, 2849, L.Ed.2d 113 125 556 S.Ct. Court of the United States. Historical re- —Felix, (1993),and States v. U.S. origin view of the of the test Blockburger —, (1992), 112 118 L.Ed.2d 25 S.Ct. multiple prosecu- discloses that its use for of the United States Court tion punishment and cumulative is consis- role of the lesser in has established the tent. It was derived from Morey v. Com- assuring double cluded doctrine monwealth, (1871). 108 433 Mass. Block- —Dixon, U.S. —, jeopardy protection. Blair, burger; supra. Morey, the court upon 2849. The court has settled 113 S.Ct. had to determine if a adul- conviction for the familiar application Blockburger tery should be reversed because States, 299, 304, v. United U.S. 52 prior for conviction lewd and lascivious co- 180, 182, (1932), S.Ct. 76 L.Ed. 306 statuto upon habitation based the same incident. ry elements test directs: which The jeopardy court considered whether for applicable rule is where The the same offense was involved and an- act or transaction a same constitutes vio- single nounced this test: “A act be an statutory provi- lation of two distinct statutes; against offence two and if each sions, applied test to to determine proof requires statute of an fact additional there two or only whether are offenses not, which the other an acquittal does n one, provision requires each whether conviction under either statute does not proof of an additional which fact exempt prosecution from does other not. punishment Morey, under the other.” Mass, State, See, e.g., Cook v. 434. The court found then test). (Wyo.1992) (citing Blockburger separate offenses were and upheld the It did convictions. not review the cumula- Blockburger is the chosen test one imposed tive sentences in that case because determine if have offenses identical statu- it said that was a matter for the trial tory if the elements or elements of an jurisdiction. Morey. court’s are identical to some the ele- of a reaching ments offense in In Blockburger, separate offenses were conclusion as to whether it is lesser in- drug found for individual sales. court cluded offense. Dixon. approved specifically imposition of cu- analysis It clear that Blockburger punishments mulative for each violation of parallels statutory test elements for the Federal Narcotic Act con- upon based application offenses. The gressional intent. out It is of this back- nothing test Blockburger has to do ground punishment the cumulative presented trial. with the evidence Cor- analysis using Blockburger was conceived. Blockburger through As bin. traced Corbin, Felix, Dixon, clear it is is a applica There difference subsequent is to prosecution its role bar a tion of the test Blockburger the Su if one two offenses is a lesser includ- Court, however, preme upon based its role ed offense of the other. That determina- determining intent, congressional Alber upon comparison made solely tion is States, naz v. United U.S. statutory elements. (1981), L.Ed.2d protection jeopardy. constitutional test of double Fe Logically, the accorded —lix, —, jeopardy respect 112 S.Ct. This the double clause with multiple punishments dichotomy jurisdic occurs should be based Cook, same tion of jeopardy test. double the court. See P.2d 1345. prevents “sentencing reviewing clause It is from barred state court’s prescribing greater punishment interpretation than the of a state statute. Whalen Hunter, States, legislature intended.” Missouri v. v. United ming punishment issues means for cumulative This 63 L.Ed.2d 715 (Wyo.1988). 762 P.2d 28 challenged Howard v. statutes are when state multiple pun prosecutions or multiple for We are satisfied using ishments, conducted the review analysis should be used as the foundation test, only determina and the Blockburger protection in jeopardy connec- double the same if statutes involve tion is the two prosecutions multiple both tion with 359, Hunter, 103 S.Ct. 459 U.S. offense. punishments. multiple or cumulative Once 673; Brown, 97 2221. S.Ct. is as a the classed lesser included however, involved, If a federal statute prosecution offense, multiple a or a then separa only by the the court is constrained multiple punishment is foreclosed. A more initially powers Its of doctrine. review tion the broadly-stated statutory test than ele- interpretation the of the federal on focuses arriving analysis for at lesser includ- ments intent. congressional determine statute to as offenses such the inherent relation- ed interpreting the Only after Whalen. See simply frequent ques- ship standard invites legislative intent light in the of statute violations, concerning jeopardy double tions jeopardy the court consider the double does punishment. cumulative especially Therefore, in ques protection. Albernaz. should be This result avoided. law, involving federal the Blockbur- tions has re- Debate arisen over whether the a rule of ger test also has been used as of a included offense instruc- fusal part as a statutory construction due implicates process tion a congressional intent. to determine means Supreme of two decisions Court Albernaz; a federal stat Whalen. When process guaran- the United States. Due involved, three-step process be ute is teed the Fourteenth Amendment requirement the initial anal gins with Arti- of the United States and Constitution separate ysis legislative intent to create cle 6 of the Constitution of the State § provisions; separate penalty offenses with Alabama, 447 U.S. Wyoming. In Beck v. ambiguous, if that intent is then court 2382, 2392, 625, 643, L.Ed.2d S.Ct. proceeds apply Blockburger test (1980), Supreme that Court ruled “to rule of construction deter a capital case give failure to a Congress given situ mine whether has a convicting a lesser includ- option of on provided statutory offenses that two ation na- coupled mandatory ed offense with Whalen, cumulatively.” punished n penalty in the statute ture of the death at 1437. If 445 U.S. at S.Ct. uncertainty “a level of involved introduced punishment legislatively au cumulative pro- unreliability factfinding into thorized, the double then the court reaches Beck had been cess.” whether jeopardy provision determine robbery when the victim capital offense of is a violation actions of courts there Felony intentionally murder was killed. prosecutors. Hunter. robbery- a offense of was lesser included killing, specifi- law but Alabama This is consistent with the intentional test instructing prohibited judge from long-standing cally the dou- policy that Court's capi- offenses in on lesser included jeopardy provision part basic ble Supreme Court noted the power, including tal “legislative cases. principle import criminal offenses and power define have never instruction: “While we prescribe punishments imposed to be them, to lesser is entitled held that a defendant found resides upon those a matter of instruction as [legislative included offense wholly with the branch].” accep- nearly process, at universal Whalen, at 1436. due 445 U.S. S.Ct. and federal the rule both state authority its own tance of The court exceeds the defen- the value to punishments legisla- courts establishes imposing multiple Beck, procedural safeguard.” guarantee dant of this tively authorized violates the at jeopardy. This 447 U.S. S.Ct. against double Whalen. unavailability Wyo- that the analysis accepted court then found method of offense, en- offense instruction cluded it is nevertheless clear hanced the risk of an unwarranted convic- construction of the Major Crimes held tion and that Alabama was constitu- preclude Act such an instruction withdrawing tionally prohibited from would raise ques- difficult constitutional jury’s option to convict the lesser includ- tions. charge. opinion, ed Beck. In that Keeble, 212-13, 412 U.S. at 93 S.Ct. at court refused to extend decision to non- (emphasis original) in, 1997-98 (quoted capital cases. Beck, 634-35,100 2388). atU.S. Groundwork for was laid in Beck Keeble Keeble, the court reversed the conviction States, for assault great with intent to inflict bodi- 1.993, 36 L.Ed.2d 844 ly injury because the trial court erred in there said: denying protection “the afforded an in- Moreover, petition- it is no answer to struction on a lesser included offense” of jury er’s for a on a demand instruction simple assault which was warranted argue lesser offense to a defendant Keeble, evidence. 412 U.S. at may better in- be off without such an at 1998. True, prosecution struction. if the has beyond not established a reasonable Beck and emphasize Keeble the es every of doubt element the offense role sential of the lesser included offense charged, and if no lesser offense instruc- doctrine in Following criminal trials. offered, must, jury tion is theo- as a teachings cases, of these we conclude that matter, a acquit- retical return verdict of give failure a lesser included offense tal. But a is defendant entitled to a supported instruction which was the evi lesser offense instruction—in con- this dence must implicating constitute error due precisely text or he other — process guarantees. Eatherton, See not exposed should be to the substantial purposes, P.2d 91. For our this means the jury’s practice diverge risk that the will lesser included offense test we invoke theory. Where one of the elements may should be one uniformly ap be doubt, of the offense remains plied complex confusing without analy plainly guilty the defendant is sis. offense, likely some is jury to resolve its doubts favor of conviction. In the The final constitutional limit us, example, case before for an intent respect with to our selection of the lesser bodily injury commit serious is a neces- included offense requirement test sary element of crime with which An notice. accused must be furnished no petitioner charged, was but not of the charges tice of the criminal for which he simple crime of assault. Since the na- must make a defense. This is a fundamen petitioner’s ture of very intent was much component tal pro of constitutional due trial, at dispute jury could rational- See, Alabama, cess. Powell v. ly simple have convicted him of if assault (1932); Selig, L.Ed. 158 option presented. had been But declared, Selig, P.2d 786. This

jury presented only op- with two notice important limiting doctrine’s role in convicting tions: as- defendant of scope possible lesser of included great bodily sault with intent to commit If fenses. has injury, or him no notice acquitting outright. We say against need to defend a lesser included availability cannot that the third of a offense, an on option convicting sim- instruction such an offense the defendant of — ple improper. Selig. proper would be A assault —could not have resulted infor Indeed, verdict. different while have mation “sufficient notice to the defen we explicitly may never held that the Pro- dant that he called Due be to defend the cess Clause of the Fifth included charge.” Amendment United Walker v. guarantees States, (D.C.Cir.1969); of a defendant to 418 F.2d have the in- Wyo.R.Crim.P. 32(c). instructed a lesser (1989) Under impos- doctrine Schmuck the notice [hereinafter II]. The limitation 31(c): if an Rule be used to determine Federal on the test to es of some included offense offense is ‘may guilty’ found A defendant pos- to the breadth of other offense relates offense, without distin- offenses. Theories such as sible lesser in- guishing between a for the “inherent re- cognate-evidence test and by the structions made Government range lationship” standard allow broad by the defendant. In other one made offenses, depen- possible lesser words, sug- language of the Rule trial, making what occurs at the dent a lesser included offense in- gests that if no- much more difficult to determine in equal is available measure to struction Blair, supra. tice been satisfied. has the prosecution. the defense and to Appeals States Court United II, 489 109 S.Ct. at Schmuck “If the determi- Circuit concluded: Seventh sufficiently are nation whether crimes agree approach, and we hold We related is not made until all the evidence Wyoming language that the 31(c), Rule trial, developed the defendant which identical 31(c), FEDERAL Rule constitutionally notice sufficient have had prosecution requires that both implies and prosecu- support an instruction at the equal right and defense have to a lesser request.” tion’s States included offense instruction. Cir.1988) 384, (7th Schmuck, 389 840 F.2d The strict statu- Schmuck II, Supreme /]. the Court of the Schmuck [hereinafter greater tory provides elements test much United States invoked the traditional statu prosecution for and the certainty both the tory elements test for the federal court’s considering appropriate whether defense approach to included offenses. The lesser given that a lesser included notice was statutory court there noted that the ele the offense. charged relates to offense directly corresponds the approach ments I. Schmuck “necessarily offense included language charged” of Rule and 31(c), right prosecution of both the upheld compar common law tradition a lesser included and the defense obtain ing statutory elements. II. Schmuck by the doc instruction is defined offense Dixon, pronouncement in The most recent mutuality. The doctrine of Selig. trine of — U.S. —, 2849, is 113 S.Ct. consistent require mutuality brings balance test statutory this rule. The elements fur notice. The notice that is ment of certainty predictability, which leads request prosecution restricts the nished adoption. favoring its was a third factor only for lesser ing an instruction those approach a involves “Because the elements offenses that flow comparison of criminal statutes and textual crime, ele charged using statutory depend on inferences that does Mutuality that the ac ments. then directs trial, introduced at drawn from evidence prose greater than the cused has no permits approach the elements both sides a includ to obtain to inhibit cution jury what instructions know advance Selig; instruction. See ed offense plan their trial will be available and I; Blair, Mutuality, how supra. Schmuck II, strategies accordingly.” 489 Schmuck ever, by those courts that is not invoked 720, at 1453. U.S. S.Ct. “inherent to follow the continue Whitaker relationship” Fitzgerald standard or re comprehensive Based this four-part test. state, relevant of the cases in our view precedent, and the mandates of States federal Court United Wyo implicit in of the United States mutuality is constitutions has found impact of ming, persuasive as the as well language of Federal Rule Schmuck 31(c). Supreme Court of the States, 705, position of the 109 S.Ct. U.S. v. United States, denied, we are convinced reh’g 103 L.Ed.2d is to invoke test the one statutory 104 L.Ed.2d 654 elements of- theory to determine whether a lesser included lesser offense. court function Wyoming prevents giving fense instruction under lesser included Rule 31(c) test, appropriate. one question “Under offense instruction unless fact ‘necessarily an- regarding offense is not included’ in present one of the differentiat other unless the elements the lesser ing greater elements between the offense are a subset of the elements of requires and the lesser offense and offense. Where the court to evaluate the evidence. See Jef requires required element not for Beach, fries, People 430 N.W.2d 728. offense, giv- no instruction to be (1988); Mich. N.W.2d 861 Do en under [Wyoming 31(c) Koenig, rean The Many-Headed Hydra of Rule ].” II, Schmuck 489 U.S. at Lesser A Included Herculean Offenses: Courts, Michigan Task 1 Det. for (1975). Michigan, sys C.L.Rev. both Having this stan established presently tems are used. The function identifying dard for of theory respect is used with in to those fenses, process we address to deter structions that are “necessarily included” mine in lesser included offense test, under given. struction should be We consider theory court function is used for lesser first the initiation of the instruction. Un presented included offense instructions un Wyo.R.CRim.P. Wyo. (codified der cognate-evidence der the standard. Beach. Wyo. incorporating 31 R.CRiM.P. reference at the time of The critical factor in R.Civ.P. 51 both theories trial), parties are to file re “written court’s role in evaluating charge, quests that the court instruct the on determination of the lesser included of- A requirement the law.” the parties fenses, and the evidence. The third and initiate instructions is consis Chapman fourth elements of the test es- system sup tent with our adversarial and tablished the court theory Wyo- function in ports the of mutuality rationale the doc ming by requiring: is “there some evidence Further, trine. is it consistent with the justify that would conviction of the lesser prior court, practice under Selig. proof offense” and “the on the element or motion, may give its own an instruction on differentiating elements the two crimes is a request lesser included offense a without sufficiently dispute in jury may so that the party. from either Roose v. consistently find the defendant of innocent of the defen greater (1988). guilty the and of the lesser-includ- knowing dant to make a and informed Chapman, ed offense.” 615 F.2d 1299. at potential waiver of a of theory certainly While this court function remains, fense also but limited mu the consistent with the Chapman cognate ap- tuality principles previously addressed. proach, inap- we believe its continued use is Eckert, 680 P.2d 478. The defendant can propriate. adoption statutory Our of the not a avoid lesser included offense instruc identifying elements test for lesser includ- simply by tion veto. ed offenses that logically directs the consis- jury replace tent theory function the evi- Whether the trial in court should formerly dence we required evaluation struct on a lesser included offense is not judges. simply by resolved the fact that a See, Davis, Comment, view, was made. John W. In our several benefits flow adjustment. First, Lesser Included jury Instructions— the function Offense Use, Problems with theory compatible Its with premise most the 3 Land & Water primary Two a guilty plea theories that denies all of the L.Rev. emerged have in jury offense, therefore, this area. The elements func theory recognizes tion if the placing upon proof the beyond State its a necessarily another, included within reasonable of each doubt element. Math- jury ought States, to free to weigh be evidence ews v. United 485 U.S. 108 S.Ct. guilt greater (1988); determine or 99 L.Ed.2d 54 Jeffries, Wyo.R.Crim.P. son, saying 728; 'practically it “reflects uni- Converse- N.W.2d practice” in theory, by demanding applying versal’ court function ly, the II, weighing approach. and a Schmuck review of record a evidence, prob- at 1452. causes “considerable cases where a for trial courts those lems identify The third benefit we testified, cul- has not has denied theory it invoking jury function is that de- pability, has asserted inconsistent permits jury credibility test the at 738. Jeffries, 430 N.W.2d fenses.” possibly reject testimony witnesses flows from the The second benefit that might prove elevating tend to ele removing theory is the often- jury function ment of the offense that was problem of whether a defense confusing charged. It follows that even defen prevents giv- theory of the case instruction presents dant who no witnesses his own ing conflicting a lesser included offense logically to a behalf still be entitled v. United instruction. Stevenson lesser included offense instruction. Jef- States, 40 L.Ed. U.S. fries. (1896), the United States confronted jury A fourth from the function benefit problems setting that would come both approach supports it the time-hon- western lore. Stevenson was from classic practice allowing jury weigh ored gun- he charged with murder after won long “So as there is some evidence. deputy States marshal fight with a subject, proper evidence had country. Indian The marshal en- given is' weight jury be it drawn, saloon, gun to arrest tered If there were evidence determine. claimed the marshal Stevenson Stevenson. facts which tended to show such a state of shot, acted in simply the first and he fired might bring grade the crime within the requested also self defense. Stevenson proper manslaughter, it then became manslaughter instruction which was de- question jury say for the whether the found Stevenson nied. true, it showed evidence were whether murder, and he was sentenced manslaughter the crime was instead conviction, Upon hanged. reviewing Stevenson, 162 murder.” United States Court S.Ct. at 839. for the to decide whether said was murder, manslaughter, or killing was neces quantum of evidence defense, requested instruction self and the included offense sary support given. been should have alluded, instruction, has been as Stevenson to the court might appear The evidence ought perceived as to be discussed and overwhelming that simply show to be 1895, years ago, in minimal. Almost 100 murder, and not killing the was in fact States Supreme the Court of the United performed in manslaughter, an act or statutory of predecessor interpreted the self-defense, long yet, as there and so 31(c) jury, the Federal Rule permitting to the issue was some evidence relevant the guilty is not of the defendant credibility manslaughter, and the of crime, guilty to find the defendant must for the such evidence be force of “necessarily included” lesser of a matter of law for and cannot jury, be [a] permitted.” Sparf “if the evidence of the court. the decision 64, 51, S.Ct. States, 156 U.S. United Stevenson, 315, at at 16 S.Ct. (1895) 278, (emphasis 273, 39 L.Ed. 343 Mathews, added). this restraint justification Steven- the court noted that In from criminal cases prevent juries of self defense affirmative defense son’s and evidence arbitrarily disregarding the claim .that he inconsistent with the was Sparf. law. applicable principles the of passion, but it reaf- the heat of killed by Sparf the refusal defens- The issue was use of such inconsistent firmed the man jury on court to instruct Schmuck, reaf- trial Supreme In Court es. supported evidence slaughter because the continuing viability of Steven- firmed tion, acquittal. statutory only a of murder or when the elements of conviction test Sparf In applied, 156 U.S. S.Ct. lesser included offenses is re- pointed the court out includ- affirmed in Schmuck II. not used as a ed offense doctrine should be Jeffries, simple In 430 N.W.2d at jury pun- vehicle for the to “commute illustration is recited serves to demon- committed, actually ishment for an strate the circumstance in which a impose punishment different and thus rationally could not convict a defendant of prescribed law.” The from that land- the lesser included offense. If the defen- opinion Spar† mark authored Justice stipulated had dant to the element or ele- Harlen, judge’s ruling noted that the trial ments, which elevate the lesser offense to law, prevented which giving on the greater, obviously, no conviction was unsup- offense instruction lesser included possible for the In lesser offense. such a evidence, ported by the avoided “confusion case, rare the evidence would be conclusive uncertainty in the administration of the no lesser included offense was commit- criminal and was not an law” invasion appropriate ted and no instruction would be jury’s being role the factfinder. for it. Sparf, 156 U.S. at at 293. S.Ct. permitting This evidence standard was application The Court affirmed the this part Wyoming’s cognate former stan- standard under Federal Rule in Ber- 31(c) Selig, dard. In indicated that States, ra v. United 351 U.S. Chapman the five provided elements 100 L.Ed. 1013 It is consistent “guidelines from which a can determination our rule that instruction must be made as to whether not the evidence supported by the evidence. permit would rationally find States, Sansone guilty of the lesser offense but 343, 349-50, 1004, 1009-10, * * guilty greater *.” Selig, (1965), L.Ed.2d 882 Court Although 635 P.2d at 790. no we shall explained evidentiary the United States longer Chapman use the five elements connoting evaluation as that a lesser in- specifically disavow the former role of cluded offense instruction would not be evidence, judge weighing we “where, proper presented, on the evidence giving adhere the view that the of a factual issues to be resolved appro- offense instruction

jury are the both same as to the lesser and priate dispute if are in there factual issues greater evidence.” The court elaborat- permit jury rationally that would to find ed, saying: the defendant of the lesser offense given If on the facts of a case there are acquit greater. the defendant of the disputed of fact issues which would en- Keeble; Sansone. jury rationally able to find that al- light elements stan- though all the [the dard, change Chapman, we con- proved, have not all been the offense] appropriate appellate sider the standard of one more of lesser offenses doing, review. In so we note is first what been, it have is clear that the defendant necessary in preserve order to the error for is to a entitled lesser-included offense style consideration. We the then consider charge toas such lesser offenses. of review be to conducted. Sansone, 380 U.S. at 85 at 1010. S.Ct. begins Later, Keeble, procedure Our with the Court sum- Wyo.R.Crim.P. Wyo. (codified as 30 marized the rule that a defendant would be at R.Crim.P. 31 the time of trial and incor entitled to a lesser included offense instruc- Wyo.R.Civ.P. reference): porating 51 by tion “if permit jury the evidence would a rationally to find him the of At the close of the evidence or at such acquit greater.” him during of the the as earlier time before or Keeble, 412 directs, reasonably any party the court use The of this minimum of requests level evalua- file written that the court necessity saying object” the “I after law as set forth of jury instruct copies ruling, any requests. uncertainty At the same time court’s is avoid- to requests simply voicing objection. shall furnished all be ed such instructing jury parties. Before is preserved, When error conduct a formal instruction court shall appellate the standard for review with re presence of the conference out spect grant or denial the trial shall inform .jury at which court court of a lesser included offense instruc upon action their proposed of the counsel ques tion the nature of the is directed oppor- them an shall afford requests and tion. We hold that the determination of legal tunity specific, objection to offer “necessarily included in what offenses are give the court intends to any instruction charged” primarily ques is instructions. No and to offer alternate Wyo.R.Crim.P. tion law. There 31(c). any portion party may assign error fore, appropriate appellate standard for charge therefrom unless or omission review is novo. de United States v. jury party objects thereto before (9th Cir.1990); Spencer, F.2d 1260 instructed, stating distinctly the mat- Komisaruk, v. 885 F.2d 490 United States party objects and the ter to which the (9th Cir.1989); Brown, States grounds objection. judge of the (9th Cir.1985). 761 F.2d 1272 in argu- before the shall instruct stance, specifically preserved the State its and, necessary, if it becomes after ments objection requested the denial arguments. instruction, question before us meaning of plain both former and whether the was entitled to that re State objection rule is that an must present quested manslaughter instruction for de give op- the trial imposed be “to spite proceed We Keffer’s waiver. re possible in in- portunity correct error view de novo. Muniz, structions before the retires.” 143; State, 783 P.2d at Morris v. 644 P.2d whether, initially We must determine un- (Wyo.1982); 2 CháRles Weight, A. FED- elements, voluntary der the man- (2d ed. § ERALPractice and Procedure slaughter remains lesser included offense 1982). objection In the of an absence degree The elements of second murder. error, will limited preserve the review (1) voluntary manslaughter killing are: an- plain Derksen, noticing error. (2) being; voluntarily, other human 1383; 1202; 798 P.2d Craney, 845 P.2d Wyo.Stat. 6-2- passion. heat sudden § Wyo.R.Crim.P. 141; 52(b). Muniz, 783 P.2d 105(a)(i) (1988).3 The second elements of objection by party request (1) require: killing another murder instruction, ing lesser included offense (2) (3) being; with mal- purposely; human however, preserved the instruction Wyo.Stat. (1988). We must ice. 6-2-104 § refused, presented writing but was the elements of then determine whether argument appropriate to inform the are the ele- the lesser offense a subset of grounds trial court of the nature offense. Schmuck ments on the lesser included of instruction II, 705, 109 S.Ct. 1443. Keller, Wyo. fense. 379; Wyo. Eagan Wyo.R.Crim.P. (formerly 48); R.Crim.P. (1942), identified the dis 128 P.2d we Muniz, (citing 783 P.2d at rule accord second murder and tinction between refusal an instruction is that: “When manslaughter being error, voluntary created claimed to be record must or of malice dur presence to in absence a clear statement sufficient contain ing of commission of the crime. stat form trial court of the basis error.”). defining degree murder re- rule ute second asserted This obviate suggest (1988). might case only voluntary manslaughter The facts of this treat We argument suggesting killing though no was made that the in- conduct even reckless might appropriate involuntary struction be involuntary. victim 2—105(a)(ii) manslaughter Wyo.Stat. § under 6— 1138 “maliciously, act

quires “purposely” distinguishes that the defendant follows that Wyo.Stat. premeditation.” without but act from one “carelessly, committed inad manslaughter Conversely, the 6-2-104. vertently, accidentally, negligently, § heed emphasizes specific statute distinction lessly thoughtlessly.” State, or Dean v. using language: person this “A of 639, (Wyo.1983) 668 P.2d 642 Mat (quoting manslaughter unlawfully any if he kills 73, Adoption CCT, ter 640 P.2d 76 of being human malice, expressed without or (Wyo.1982)). * * Wyo.Stat. 6-2-105 § implied (1988) added). manslaugh- (emphasis manslaughter statute, In the however, language, ter statute’s does not phrase, upon “voluntarily, a sudden an make absence of malice element of passion,” single heat of states a element of Jahnke, crime. that 692 P.2d 911. “While “Upon crime. pas a sudden heat of the absence malice is fundamental prepositional is a phrase sion” within the manslaughter general in a definitional begun by “voluntarily.” adverbial clause sense, it an is not actual element clause, unit, The adverbial as a states State, crime itself.” P.2d Cheatham v. 719 required person conduct when a “kills 612, (Wyo.1986) (quoting 622 People v. being Wyo.Stat. human without malice.” Doss, 9, 406 Mich. 276 N.W.2d 12 6-2-105; Wayne 2see R. LaFave & Aus § (1979)). theory Since our of criminal law is tin W. Scott, Jr., Substantive Criminal wrongful punished, conduct is it is (1986). 7.10 “Voluntarily” does Law, § inappropriate to demand that the State es- Helton, intentionally. mean v. 73 State beyond tablish absence malice a rea- Wyo. (1954). P.2d It denotes question sonable doubt. whether vol- the condition of mind at the time of untary manslaughter is a distinguishes homicide “voluntary” degree offense of second murder not from act one which occurs accident. decided determining malice to be State, v. Ivey Wyo. 154 P. 589 elevating A question' element. further re- respect, phrase function concerning mains killing whether a commit- to “purposely” similar in the de second “voluntarily, ted a sudden heat of gree Manslaughter murder statute. also is passion” killing differs committed general require intent crime does not “purposely” in such a manner that there State, a deliberate intent to kill. Dodge v. a different element in voluntary man- (Wyo.1977). 562 P.2d “Voluntarily, slaughter statute. upon a passion” sudden heat of then sets “pur We first examine what extenuating forth the circumstance that posely” State, means. Nunez v. 383 mitigates offense, an which would other (Wyo.1963), P.2d we determined murder, degree wise be second to man degree when used as an element of second slaughter. murder, “purposely” intentionally means or recognize Our an laws intermediate deliberately. State, also v. See Cullin lying someplace crime between the ex- 445 (Wyo.1977). P.2d so used As cusable, justifiable privileged killing or statute, “purposely” second murder being, aof human tak- the unlawful general-intent is a element that “describes ing of a life malice. This is an the act to committed an inten unlawful type voluntary homicide produce desired, specific tion result.” excused, State, legally privileged which is not (Wyo. Crozier 723 P.2d justified, 1986). crime, or there is ab- general-intent Because it is a but wherein express legal, implied sence of con- support the evidence to a conviction law, structive second murder must malice. So we find in our demonstrate deliberation, (i.e. voluntary) doing “the defendant acted with but that the intentional act, require it does not of the wrongful “upon evidence he deliber a sudden heat State, ately passion,” killed.” although completely Ramos v. free (Wyo.1991). Young express, legal also implied, See constructive or malice, (Wyo.1993). 849 P.2d It legal 761-62 ex- committed without respect question, first cuse, pun- With privilege justification, is voluntary dispute call the central factual at Keffer’s which we ishable crime recognizes firing the simply her intent. She admitted manslaughter. This was jury sur- him. If may gun killing circumstances at Jackson and the that there evidence, killing justi- rounding accepted which cannot be all the State’s the of self-defense, and killing the law of was If the fied under committed with malice. evidence, degree of men- producing accepted Keffer’s she acted jury while defense, of the mind justi or aberration and the homicide was tal disturbance in self however, the necessary easily to excuse ground, in law A is which fiable. middle homicide, credibility mind devoid of jury questioned still leaves the If the seen. wicked, purpose, testimony, evil unlawful co-employee’s which was . of rights of disregard during wilful strongly or of that attacked the defense cross-examination, implied term presence others which then or ab of mitigate open circumstances question. “malice.” Such of malice became an sence Furthermore, jury testify the act and make the homi- Keffer or extenuate heard degree. The “sud- a crime of lesser “scared” she cide that she was as withdrew passion” contemplated gun den heat of from a bedroom dresser. Keffer’s manslaughter husband, voluntary statute our also testified that Keffer was mind, descriptive just a state of weigh of such afraid. The was entitled to occur emotional fear if it was of “such a such to determine intensity such that it tem- degree excitement of to render the ac character or reason, incapable or leaves re porarily obscures of cool reflection” thus cused degree mind bereft of reason. to man ducing a second homicide 1276, slaughter. v. 569 P.2d Doe (em- 115, Helton, P.2d 434 Wyo. 73 276 (Wyo.1977); Guyon, 1279 United States added). phasis 1536, Cir.1983), (6th cert. F.2d analysis, Under denied, 465 U.S. 104 S.Ct. do of manslaughter represent subset of (1984) (holding pas “heat of L.Ed.2d murder. the elements second fear). passion include the sion” could hold, therefore, crime volun that the We manslaughter is lesser included of tary right As Keffer’s waiver of her mur crime of second fense instructions, we lesser included offense long-standing der. force defen already established that have law Wyoming and common precedent request instruction on an right to dant’s See, e.g., favor our decision. Ste tradition in the “necessarily included” Jahnke, venson, 839; by the charged offense is limited doctrine 726; 911; Nunez, P.2d Ea mutuality mutuality. It follows that 215; Sorrentino, 31 128 P.2d gan, State Wyoming 31(c) implicit doctrine Rule denied, Wyo. reh’g 224 P. the defendant to limit the serves (1924); P. Wyo. Ivey. Eckert, the such an instruction. waive for a lesser State’s waiver, object failed to prosecution voluntary man- offense instruction impediment “no to such waiver” thus a matter of law. slaughter was correct as Eckert, now 680 P.2d at 481. We created. First, Only questions two remain. however, by the hold, objection whether, theory, function under by Kef- waiver offered to the Eckert State which disputed issues fact there were specific legal impediment fer created permit jury rationally to find would to sus necessary require the trial court lesser offense objection and instruct the State’s tain greater. The acquit the defendant of included of requested lesser jury on the re- question is whether State’s second fense. in- lesser included offense quest for the precedent as set adjustments to our prevented the Eckert struction was opinion protect the fundamen- in this by Keffer. forth signed waiver tal role of the lesser included offense doc- thus, Wyoming, ensuring fair trine MFB, In the Interest of a Minor. change peri- Although brings

trial. often DB, Appellant (Respondent), transition, od of the reaffirmation statutory support elements test finds under principles jeopardy, constitutional of double Wyoming, STATE DEPART process, Additionally, due and notice. MENT FAMILY OF SERVIC Wyoming 31(c) application uniform Rule (Petitioner). ES, Appellee counterpart provides with its federal useful guidance. re- elements test No. C-93-1. solves conflict between lesser included Wyoming. Court of de- instructions and inconsistent fense theories of case instructions Oct. allowing supported by both re- their spective analyses. mutuality Finally, the ability prose-

doctrine states the of both the

cution defense to lesser includ-

ed offense instructions. The defendant’s pre- to waive such instruction is

served, ability is limited object

State to to such a- waiver if justifies

evidence the instruction. standards, applying

We hold these denying

the trial court erred in the State’s

request for a lesser in- included offense voluntary manslaughter.

struction on

CARDINE, Justice, concurring. put-

I concur with observation that

ting particu- labels rules has never been

larly helpful understanding them.

Therefore, I submit brief statement

my understanding. trial judge must first if all determine elements of are so, greater; and,

found within the if

there some rationally evidence that would

permit guilty to find the accused If present,

offense. such evidence is given.

instruction should

Case Details

Case Name: State v. Keffer

Court Name: Wyoming Supreme Court

Date Published: Sep 29, 1993

Citation: 860 P.2d 1118

Docket Number: 91-9

Court Abbreviation: Wyo.