*1 BOUWKAMP, II, Jay Marvin (Defendant),

Appellant (Plaintiff). Appellee Wyoming,

STATE of 90-57.

No. Wyoming.

Supreme Court 2, 1992.

June *2 Program:

Public Defender Leonard D. Munker, Defender, Public E. Steven Weerts, Defender, Sr. Asst. Public David Gosar, Counsel, Appellate Cheyenne, for appellant. Gen.,

Joseph Meyer, Atty. B. John W. Gen., Renneisen, Deputy Atty. Karen A. Gen., Hugh Kenny, Byrne, Atty. Sr. Asst. Gen., Cheyenne, appel- Atty. Sr. Asst. lee. URBIGKIT, C.J., THOMAS, FACTS

Before CARDINE, GOLDEN, JJ. MACY and early morning May In the hours of Millox, 63-year-old Lucien Buffalo

GOLDEN, Justice. hand, savagely ranch battered area left north of to die at a location Buffa- *3 Bouwkamp appeals his Marvin J. interchange. lo known as the Rock Creek degree murder in the of first conviction beating place roadway, took on the and 25, 1989, May Lucien Millox on death of stripped partially Millox was then naked Buffalo, Wyoming. Bouwkamp re- near and thrown a concrete barrier and out over in prison. of life He was ceived a sentence road; sight of travellers on the he premeditation tried on both and died an hour or two later from brain swell- theories, returned a and ing by multiple caused blunt trauma. On guilty. affirm general verdict of We 26,1989, May large local farmer noticed a a pre- Bouwkamp’s The state's conviction. amount of dried blood on the road and a however, argument, meditation does leading apparently over blood trail to distinguish the elements of first adequately stopped investigate. the barrier and The court will and second Following the trail he discovered the blood provide guid- on this distinction to comment body, immediately reported to the which he ance in critical area of the law. this County Johnson sheriff’s office. Millox’s in his Bouwkamp presents three issues badly body face was so battered that the appeal: unrecognizable, fingerprints was were refusing give appellant’s theo- By I. identify needed to him. The Johnson Coun- jury, ry the case instruction to the ty investigated the homicide sheriff’s office his constitutional trial court violated Wyoming with assistance from the Division process. right to due Investigation Wyoming and the Criminal II. Instruction 15 should not have been State Crime Lab. ease, given longer and should no in this leaving Milloxwas last seen Buffalo with law, Wyoming rule of because: Bouwkamp Bouwkamp’s employee, supporting the rationale Lennick, early 1] D.J. after the bars closed on

murder doctrine is not served May Bouwkamp and Lennick 1989. instruction; in a first encountered Millox Buffalo bar evening May Bouwkamp, Len- application a of this rule led strict 2] Stagner, employee, nick and another had and incorrect verdict in this to a harsh come into Buffalo after work to drink beer case; and play pool; staying the three men were imposing effect of this rule has the 3] building pole in the area while barn punishment beyond the defendant’s Initially, distance outside of Buffalo. short culpability. Club; they was there they went to the it III. There is insufficient evidence Stagner left the 21 Club and met Millox. support and therefore the tri- the verdict Buffalo crossed the street Club entering judgment al court erred in not tending he knew was bar. where woman acquittal appellant. later, got Some time Lennick and Millox responds to these three asser- The state dispute which was resolved without into tions, rephrasing them as: Bouwkamp claimed that Millox violence. properly I. refused to The trial court pulled during Lennick this con- a knife on a crime jury regarding instruct the frontation, present did not see but others charged. appellant was Lennick Bouwkamp’s suggestion, At one. the Buffalo Club where he also went to proper II. 15 was a state- Instruction closed. remained until it supported ment of the law and the facts in this case. the 21 Club closed Some time before up Bouwkamp Millox struck a conver- evidence to III. There was sufficient bought each other sation at the bar and support the verdict. paid pile Bouwkamp drinks. Millox for drinks from a admitted that he decided to placed attempt up killing. to cover he had on the counter He and bills partially stripped Lennick Millox and took front of him. When the bar closed Millox knife, checkbook, his watch and belt Bouwkamp asked for a ride home. Bouw- buckle clothing, and some of Millox, planning his kamp, de- followed went to the Buf- stroy up these items to cover Lennick; victim’s get falo it there that Club identity and their involvement his death. Bouwkamp par- heard about an after-hours They dumped they then what believed was ty. Millox claimed he to find knew where body a dead over the barrier at the side of party guide Bouwkamp and offered to the road and tried to remove evidence of there. The three left Buffalo Bouw- presence their from the crime scene. kamp’s shop truck. Millox was killed trying recalled to hide next to shortly thereafter. *4 during his truck this time when a vehicle Bouwkamp present admitted he was by. Bouwkamp drove testified that he did killed, Millox was he when but claimed had shock, things these out of fear of what nothing killing. to do with the In Bouw- happen would to him because he was on events, kamp’s subsequent version of the theft, probation for a car and a Bouwkamp’s the three men left Buffalo in protect desire to Lennick. truck, Bouwkamp driving, with Millox rid- occurred, At about the time the murder front, ing him in lying and Lennick subsequently same farmer who discov- They on the back flatbed. looked for the body through ered the drove the crime party, Bouwkamp but could not find it. scene as he returned home from a bull sale slowly driving couple testified that after in South Dakota. He saw what was later searching of miles out of town while vehicle, Bouwkamp’s identified as a flatbed party, stopped he the truck at the Rock plates missing truck with Montana and a interchange request Creek at Millox’s so taillight, parked in the road under the inter- that Millox could relieve himself. Lennick interchange. at state He also observed climbed off the truck and Millox immediate- type a man in a hat Stetson crouched Lennick, knife, ly again pulling attacked alongside truck, apparently hiding his Bouwkamp which was forced to wrestle anyone face from He view. did not see from him. Lennick struck Millox several thought might else and at the time the man during struggle. Bouwkamp times relieving reported have himself. He been that, although testified words were still investigators this observation to after he being exchanged, he believed the incident body. discovered the was over and the other two were under control, up ramp he walked Bouwkamp placed Millox’s and Lennick interstate above to orient himself. How- clothing and some of the bloodstained ever, as he returned he the other two saw clothing wearing plastic they had been blows, exchange ground, Millox fall to the bags, they trailer hid in the travel stomp and Lennick on Millox’s face. they stayed jobsite. They finished at the following day, packed up and the barn the Bouwkamp pull testified he then tried to Billings, returned to their homes in Mon- Millox, grabbed off Lennick but when he personal tana. Lennick then took Millox’s behind, younger Lennick from had clothing items and all the the two off, stronger simply shrugged man him boots, Bouwkamp’s gathered, except for Lennick, flinging ground. him to the who clothing, from the trailer. He burned rage, intoxicated and in a then threat- knife, gave watch and belt but Millox’s well, finally ened as until father, after his apparently to his buckle recognizing calming him and down. After in order to turn father asked for them Lennick, calming Bouwkamp knelt and attorney. Lennick’s them over to checked Millox’s condition. He could see badly Investigators with a search warrant that Millox was battered and could pulse, leading Bouwkamp’s truck and travel trailer not find a him to believe that seized May Billings. Lennick was arrested on Millox was dead. charge. Like the defendant Bouwkamp turned himself Ellifritz (Wyo.1985), Bouw following day. Investi- to authorities prove kamp the evidence did knife from contends Millox’s gators also received charged. the crime Elli his watch and belt his attorney, and Lennick’s said, 1301, this court law enforcement 704 P.2d at fritz, another “[a] from buckle they than a comment theory them after of the case is more had recovered agency that appellant suggests Lennick’s father. the evidence. What stolen on had been boots were on proposed instructions is comment Bouwkamp’s bloodstained his samples effect, telling dried blood trailer and the evidence—in found * * * spatters found on from the collected to consider the evidence.” Elli were how from the The blood Bouwkamp’s approach, truck. This we fritz, 704 P.2d at 1301. victim, truck matched say, boots and does not state went on in the dried fragments found did hair at 1302. defense. Id. Bouwkamp’s boots. blood Theory instructions are of defense guilty to first pled Lennick Codefendant address criminal derived from and trial and received a degree murder before by statute or ac provided for defenses Bouwkamp’s He testified life sentence. knowledged by this court. “Common-law to recall

trial, was unable although he pro retained unless otherwise defenses are apparently be- the incident much about *5 6-1-102(b) by Wyo.Stat. this act.” vided § as an alcoholic what was described cause of (June 1988). Additionally, this court has on his own Bouwkamp testified blackout. defenses, acceptable notably in discussed general ver- returned a The behalf. State, (Wyo. Keser degree. in the first guilty murder dict of Robinson, 1985). 1 Paul H. Crim See also (1984); INSTRUCTION n. 1 THE CASE THEORY OF inal Law § Defenses Torcia, E. Criminal Charles Wharton’s correctly asserts (14th 1978). Bouwkamp’s Law 39 ed. § entitle criminal process considerations due “theory does not state a de of defense” theory affirmatively stated defendants Wyoming by statute or recognized fense two condi instructions when of the case judicial decision. State, 776 P.2d Murray v. tions are met. State, 736 (Wyo.1989); Best v. disputed instruction is We note the The instruction (Wyo.1987). Wyoming from apparently taken verbatim the court of the sufficiently inform must Criminal, Jury Pattern Instructions — supported theory and must be defendant’s 3.302, Accessory WPJIC Elements § However, Af Id. by competent evidence. reiterating ter the Fact. While fundamental condition there is another counsel, guide WPJIC serves not met the of precedent which was separate that it includes two we observe must in The instruction fered instruction. and Excused Ac parts labelled theory Defenses proper first instance be a not taken that this instruction was tion and defense, case, instruction. theory of either, simply states the but instead is, instruction must offered That an offense. elements of by statute or present recognized a defense jurisdiction. instruc case law in this rely a defense Bouwkamp did not improperly Bouwkamp contends tion or this recognized by Wyo.Stat. 6-1-102 § a defense. present did not such refused theory of the case court that would merit Instead, true defense was his instruction de instruction. Bouwkamp’s offered he most direct of all: accessory simplest after scribes the crime of charged. He ar- charge guilt of the crime alternative denied Suggestion fact. of an Millox, killing gued being prose he was to the crime is not a defense he willing to admit that although he was may a different cuted. It offer In other facts, up the murder. helped does not cover way interpret but claiming inno- words, to be he defended against the murder present a defense charged. cent of the crime argu- On this through both his counsel’s efforts and ment he adequate received instructions. through his own testimony as to the events of Millox’s death. chose not to Bouwkamp points out that this ap- believe him. As the rejected instruction parently considered an after the did present a theory of defense to the argument theory fact as a of defense in charge murder, the trial court did not (Wyo.1988). Miller v. err in refusing give it. gave The court reject interpretation. We However the following instruction: Miller instruction have been la- belled, adequately it covered that which on, Miller wished instruction while his of- INSTRUCTION 15 fered rejected instructions were because For purposes of establishing the they argumentative were confusing. crime felony murder, killing which Id. at opinion 865. The Miller does not perpetration occurred robbery, hold that an accessory argu- after the fact sequence of events is unimportant theory ment is a of defense to a murder killing and the may precede, coincide charge, opinion and the should not be so with or follow the robbery and still be

read. perpetration. committed in its Bouwkamp’s instruction, offered Bouwkamp argues that court, this instruction refused cannot be con- should not given have been sidered and should no the case instruction. longer be the Wyoming. rule of law in Without this He characterization it is seen as reasons it does essentially not further the attempt mur- to amend the rationale, der charges. However, it led to an asserts, as the state incorrect verdict against charging Bouwkamp, decision and its prosecu- lies with the effect is to impose punishment tor and disproportionate the defendant cannot alter or to a charges. amend the defendant’s culpability. disagree. The refused We *6 instruc- tion given listed the instruction as accurately elements of our states the law, after the fact provided Bouwkamp statute1 and for a has not demonstrated jury determination of consequences defendant’s for dire alleges that he that crime. It is a comment on the flowed from evi- its use. designed dence persuade jury Felony-murder is an unusual offense Bouwkamp

while guilty of another arising that the death robbery out of the crime, guilty he was not charged. as is purely an incident of the basic offense. The trial correctly reject chose to It makes no difference whether or not the instruction because it described a crime there was an intent to kill. The statu- not charged and one which was not a tory implies lesser law all of the malevolence included offense of murder in the first de- necessary found and in the crime of first gree. “It confusing would have been murder alone. jury to be instructed on a crime not State, Richmond v. 554 P.2d charged, and one on they could not (Wyo.1976). Consequently, a defendant Miller, convict.” 755 P.2d at 865. Addi- convicted language under this faces the

tionally, the trial obligation court had no penalties premedi- same as one convicted of give a “correct” version proposed of the tated, is, coolly calculated murder. apprise instruction as it did not jury of The element of deliberation is established recognized theory of defense that would by presumed the defendant’s consideration Bouwkamp entitle to an instruction. high degree causing of the of risk of death Bouwkamp permitted

While was not involved the commission of one of the instruction, he compromised was not in inherently dangerous expressly in- felonies arguing interpretation his alternative corporated into our first statute. jury. Richmond, the facts to the He vigorously, did so 554 P.2d at 1232. (June 1988). Wyo.Stat.

1. § 6-5-202 performance acknowledges there must occur felo- In its the state brief Bouwkamp’s claim that the felony may ny merit for conviction of murder under applied in rule should not be felony (June 1988). murder Wyo.Stat. 6-2-101 § felony arises as an the instance where that, requires Instruction 15 before subsequent is committed afterthought and felony could be found underlying The rationale murder, proved the murder must be purpose of the rule is this claim is that of, perpetration have occurred felonies, in the course of homicides deter of, robbery during transaction of Mil- negligence resulting from including those Consequently, ap- lox. it does dictate accident, holding perpetrators plication felony murder rule where Richmond, responsible. strictly felony both the intent to commit the logically does not purpose This at 1232. sepa- itself murder as a the act follow the felony where the reach the circumstance transaction, Bouwkamp contended rate killing after the of and executed conceived happened here. However, the state then ar- has occurred. misapplication of the gues issue of that the killing and the Whether rule does not arise from the part parcel were of one transaction is a giving of Instruction 15 in this trial court’s Annotation, jury question. What Consti contentions. agree case. We with both Felony Purpose tutes Termination of instruction, key phrase in the Rule, Felony 58 A.L.R.3d 851 Murder of,” perpetration “in the relied Without doubt it be diffi § state is found Cloman persuade such as cult to on facts (Wyo.1978). “Perpetration,” 418-21 separate that there two criminal these were here, process of is the act or com as used transactions. The is not bound to specified crime. Webster’s mission of a events, accept defendant’s version of Dictionary 1684 Third New International Grigsby, 260 Ark. at 542 S.W.2d perpetration To occur This chose not to believe Bouw- killing in the un felony the must occur story. kamp’s We note that evidence comprising the felo broken chain of events satisfy the one continuous and inferences Cloman, ny. 574 P.2d at 419-22. See imposed by test transaction directive concept framed the in this we Cloman perpetration that the murder occur “in the important way: sequence “the time is not felony. of” the *7 evidence, including long the the infer as ences, transaction.” point to one continuous expressly reject suggestion the We that, Cloman, for a 420. This means may permit a be read to Cloman murder, killing finding felony the must of felony murder where intent conviction for “things or part gestae occur as of the res felony to commit the cannot be inferred felony. felony If the done to the commit” murder and the chain of events before the of the victim’s was not conceived before apparently broken. When a reasonable murder, death but occurs after felony doubt remains as to whether broken, sepa is a chain is and the murder may afterthought “in as an have occurred have occurred rate act which cannot underlying felony. killing, killing perpetration of” the followed the cannot have 333, Mack, felony,” 466 F.2d perpetration See United States v. “in of the been (D.C.Cir.1972) cert. denied sub nom. may not be elevated to and the homicide 952, States, 409 Johnson v. United U.S. by application degree in the first murder 223; Grigsby 34 L.Ed.2d see also under felony murder rule. This is our State, 260 Ark. 542 S.W.2d Al standing legislature’s intent. of the may perhaps though proposition of law Instruction 15 plainly, more be stated sig- sequence While the of events is not law, presents a correct statement nificant, interrelationship spe- is. A their giving it. did not err murder and the trial court required: cific connection disrepair, requiring THE EVIDENCE into some SUFFICIENCY OF that we do pruning boundary. some to restore the Bouwkamp’s final contention is that the presented evidence at his trial was insuffi- Wyo.Stat. 6-2-101 defines mur § support his conviction of murder in degree killing cient der in the first as a commit degree premedita- “purposely premeditated ted the first under either the and with mal argued by occurring ice” one felony tion or murder theories course [or attempted felony], Wyo.Stat. Bouwkamp the state. directs most of his (June 1988) 6-2-104 defines murder in argument theory, murder § degree killing the second as a committed claiming that there was sufficient evi- “purposely maliciously, but without robbery light dence of of his alternative premeditation.” degree As second murder explanation body of how the victim’s came degree is a lesser included offense of first stripped possession to be and Lennick’s murder, Selig, State v. 635 P.2d personal some of Millox’s effects. (Wyo.1981), obviously a distinction exists body claimed that Millox’s charges, between the which is the element stripped clothing property after premeditation required finding for a only up identity. his death to cover his degree. appar murder the first Another However, reading our of the record reveals ent distinction is that first enough had evidence and rea- crime, specific requiring proof is a intent sonable inferences available to it on which intent, the element of second while to find that Milloxwas murdered after crime, general requiring murder is a intent robbery the intent to commit formed only proof of the element of voluntariness. purpose. and to effect that State, (Wyo. 723 P.2d Crozier v. To determine whether sufficient 1986). premeditation conclude We is the exists, evidence of a crime examine specific distinguishes “[w]e intent element which light all the evidence most favorable types the two of murder. State, to the State.” Mendicoa v. 771 P.2d Premeditation, premeditated (Wyo.1989). Broom See also v. malice, ordinary should be accorded its

State, (Wyo.1985). In so meaning, applied which has been in our doing, testimony we note the of Bouw- for some time. It is the “think decisions kamp’s drinking Millox while vic over, ing deliberating upon, weighing in the bar, placed tim his stack of bills on the beforehand, resulting mind in a deliberate location, travel of the trio to a remote kill the kill intention to which constitutes disappearance of the cash ultimate victim’s degree.” ing murder in the first Parker v. any explanation, without and Lennick’s re State, 491, 502, Wyo. 161 P. personal having tention of Millox’s items Premeditation inferred utility or value. standard of review is Our Murry from the facts and circumstances. not whether the evidence is sufficient State, (Wyo.1986); us, whether, favorably but when viewed (Wyo. Goodman state, enough it was 1977). *8 could form a reasonable inference of This court’s recent discussions of Mendicoa, beyond 771 a reasonable doubt. passage premeditation have focused on the at 1243. That test is satisfied this P.2d premeditation. required of time to establish case. Murry, 713 P.2d at 206-07. generally, See Likewise, pre- we find the evidence of specific it is true that no or substan While We are somewhat meditation sufficient. period required, is there must be tial time premeditation beyond troubled with the evidence of evidence of cool calculation deliberate, apparent is by opportunity offered the state. It mere to such as a Williams, motive, hedgerow separating the offenses demonstrated State v. 248, (Iowa 1979),2or leav- 285 N.W.2d 268 degree murder has fallen first and second 522, 475, State, 518, 34 L.Ed.2d also Buckles v. 500 P.2d 2. See 1026, denied, (Wyo.1972), 409 U.S. 93 cert.

494 ing Murry, to arm oneself. malice in the savagely an altercation form of adminis Otherwise, having premeditation by at 207. said an tered wounds into 713 P.2d charac sufficient, inadvertently terizing attending we have it as instant circumstances any principled State, killing. Heiney eliminated distinction be- v. 447 See So.2d 210 requirements evidentiary (Fla.1984); State, for the Tooley tween the v. Tenn.Cr. 652, degrees (1969). two of homicide. See State v. App. S.W.2d This is 984, Ollens, 107 Wash.2d 733 P.2d 987 inappropriate, align Wyo and we decline to (1987). question only, “The is not did the ming jurisdictions. with these A sure haz think, time to but did he accused have devolving difficulty ard from the of estab Williams, think?” 285 N.W.2d at 268 premeditation lishing when confronted with Wilson, 60, 94, (quoting State v. 234 Iowa factually heinous crime is that malice (1943)).3 11 N.W.2d significance, tends to assume excessive requirement preex while the of evidence of compel The state does not make a isting reflection becomes indistinct. We ling premeditation. simply case for areWe premeditation affirm that remains de delivered, reminded of number of blows fining crux and the distinction which this weapon the inference that a of some sort require uphold court will to a first used, that it informed would be murder conviction. anyone obvious that such a brutal attack inevitably directed at the head would cause opportunity have taken this We Repeated weapon death. blows with evi carefully premeditation juris review our malice, purpose dence and demonstrate but prudence. find that We heretofore we “repeated blows” evidence does estab have not identified and articulated a meth premeditation. lish evaluating premedita od for evidence of erroneously argues The state clarify required appeal tion. To what is premeditation can be inferred from the use to sustain a conviction of first mur earlier, weapon. of a As we said this court analyze presented der and to the evidence premeditation may has held that in instance, adopt three-part we surrounding ferred from the circumstances framework articulated the California killing. Murry, 713 P.2d at 206. This Court, Supreme applied in California and court has never said that the circumstance jurisdictions. Bloom, People other See v. deadly weapon enough itself 698, 705-07, 48 Cal.3d 774 P.2d premeditation. infer What have we said (1989); Williams, Cal.Rptr. 676-78 may that “malice be inferred the use of 268; State, Longoria N.W.2d at v. 99 Nev. deadly weapon.” Braley (1983). also, See (Wyo.1987). Scott, 7.7(a) supra, LaFave & at 239. § We offer the framework verbatim: brutality Neither can the of a fatal attack, itself, support finding Evidence sufficient to inference of sustain premeditation. Lacquey, premeditation 117 Ariz. “falls deliberation 231, 234, (1977); (1) categories: Peo into three basic facts * * * ple Hoffmeister, prior 394 Mich. did about what defendant Wayne killing N.W.2d which that the See R. the actual show Scott, Jr., engaged activity LaFave & direct- Austin W. Substan defendant was 7.7(a) toward, explicable tive at 240 intended to Criminal Law ed as § in, killing We have examined decisions from other result be char- —what jurisdictions appear bootstrap ‘planning’ activity; facts acterized *9 pre- suggest 3. We do not mean to these comments murder convictions based on required that this court has not evidence of meditation demonstrates that additional evi- premeditation beyond opportunity mere to re- specific dence of a intent to kill has been re- flect it before has affirmed convictions of mur- Wyoming quired to sustain convictions. The degree argued premedita- der in the first on a throughout provide opinion decisions cited this theory. opinions concerning tion Review of our representative examples. challenges sufficiency of the evidence in prior relationship premeditation from which can be defendant’s inferred. about the However, substantially is a with the victim from this different and/or conduct First, weapon reasonably only infer a case. the use of a is which the could victim, inferred, weapon kill the which infer- as no was discovered or ‘motive’ to motive, together specifically being with facts of even described. We are ence of * * * (1) (3) support upon to endorse an inference an in type or would asked Second, suggestion killing was the result ference. state’s inference that weapon proba reflection’ and ‘careful that the used on Millox was pre-existing of ‘a bly a tool or taken from the thought weighing of considerations’ stake back of shop weapon ‘mere unconsidered or rash truck. Use of a of this rather than stretch, executed’; (3) not, any impulse hastily facts about nature is reasonable killing planning. evidence of Such an instrument the nature of the which jury could infer that the manner normally kill- found on a vehicle used in construction, exacting weapon if such a ing particular were was so used, intentionally suggestive sponta must have it is at least as the defendant ‘preconceived neity planning. Consequently, de- as of according killed to a infer, sign’ partic- asking life in a state is not this court to but to take victim’s [the] Rowland, speculate. People way ular for a ‘reason’ which 134 Cal. type 1, 8, (1982). reasonably Cal.Rptr. infer from facts of App.3d can (2).” (1) distinctly weapon or from the This is different Cloman, apparently a knife concealed on Crandell, People v. Cal.3d 760 P.2d person of one of the defendants before (1988) 423, 441, Cal.Rptr. (quoting victims, encountering and then used to Anderson, 15, 447 P.2d People v. 70 Cal.2d murders. We find no evidence commit the (1968)) (cita- Cal.Rptr. planning activity. omitted). tions typical- of first [VJerdicts category The second of evidence is ly there is evidence when [are sustained] prior relationship of the that related to the require types of all three and otherwise suggests and the victim that accused (1) extremely strong evidence of at least to murder the victim. motive or motives (2) conjunction with evidence significance court has discussed the This either in several earlier first de motive evidence State, Jones gree murder cases. Anderson, People v. 70 Cal.2d State, Buckles v. (Wyo.1977); Cal.Rptr. at 557. (Wyo.1972); Keffer foregoing reference to the three With 49, 69-70, 73 P. Wyo. categories, type of evidence the first basic plan- is that characterized as we consider activity. questionable suggests animosity ning The evidence little that There is towards, regarding “activity Bouwkamp directed and Millox. The two between in, evening kill- explicable intended to result time the interacted for the first Bouwkamp only ing.” Initially, They spoke did initiate to each other the murder. Instead, time, trip. closing fatal Millox left and that was briefly, Millox’s near conversation, Bouwkamp he had in the course of friendly because town At Bouwkamp bought for a ride home. Subse- each other drinks. they asked unpopulated stretch of Millox quent travel to an of that conversation the conclusion home, explicable Bouwkamp as intended to for a ride evidence rural road asked location as Lennick did killing, but comfort level. result their mutual Bouwkamp’s knowl- altercation with readily explained by sort of brief have some for, of, evening, the after-hours but edge and search Millox earlier that party. peripherally involved. However, of motive there is evidence points to the inferred use

The state robbery, avoiding detection for robbery, or Cloman on to make weapon and relies at the Bouwkamp’s observation is a circumstance based argument *10 Robbery ny theory, gener- roll of bills. murder we will sustain a of Millox’s bar justify guilt. to an inference of al of sufficient motive verdict 561; Keffer, 73 P. at premeditation. arguments Bouwkamp’s per- are not (Iowa Gordon, N.W.2d suasive, and his conviction is affirmed. Ollens, 1984); P.2d at 987. category final is evidence of URBIGKIT, Justice, dissenting. Chief killing from which the the “nature of the killing manner of jury could infer that the I. exacting that particular was so and intentionally killed ac defendant must have FALLA- ISSUES PRESENTED—BASIC ” design.’ cording ‘preconceived Here CY OF THE MAJORITY OPINION argument re there is merit the state’s presents This case broad and basic issues garding administered to Millox. the blows (a) Wyoming availability of law: theo- exacting application repeated, of se ry of defense instruction for a criminal sup the face is evidence vere blows across defendant; (b) application and basic nature intent porting the inference of a deliberate murder; (c) felony of of nature the crime to kill. fact; (d) accessory require- of after the and Returning analytical frame jury unanimity determining ment for its work, killing nature of the evidence of the verdict. support finding premeditation of must II, Jay Bouwkamp, serving Marvin now reasonably in supported by reasons murder, life sentence for first (2) (1) category category ferred from for commission of the motive, convicted offense robbery is sufficient facts. As fact, accessory after the which he admitted of the nature support here for the evidence (2) prosecuted, and for which he was not and category killing exists from evi proper opportunity present was denied dence, motive. charge his defense of innocence to the overwhelming, While the evidence is aiding abetting and in commission of a again employ our standard of review we homicide, emphatically he denied. sufficiency of the evidence a criminal completely totally Whether innocent or adequately sup find the verdict case and responsibility of criminal for the ported. only whether the We consider murder, was de- did, it and not whether we could find as right adequately nied the constitutional the same result. Men would have reached claimed innocence of homicide defend his dicoa, Doing so, P.2d at 1243. we find participation. premeditation sufficient to evidence support guilt beyond inference of a rea an conception misapplication Errors in and analysis does not re sonable doubt. Our firmly principles properly based criminal categories from all three veal evidence trial, Bouwkamp during presented by his identify plan evidence of since we do (1) appeal, and now considered on include: However, ning activity. the motive of rob denial of a of defense instruction may properly bery present be cou participation cover-up his admission of exacting of the fatal pled with the nature activities after the homicide with denial infer support skull to blows Millox’s death; any participation in the actual premeditation. ence of misapplication of his after testimony pre- fact admission and to create considered

We hold that the evidence proof guilt premeditated sumptive sustain Bouw- was sufficient to murder; (3) felony theory develop- trial kamp’s conviction on both ment, application in- procedural premeditation theories. As this court requirement eliminated the struction which recently held in Price v. result from commission (Wyo.1991), that the homicide where the evidence is suffi- consequently justified felo- support of of a jury’s cient to determination crime ny murder conviction when premeditation under either a or a felo- *11 homicide; accessory by being present conduct an after the fact but that thereafter, following admittedly participated committed and admit- he a homicide in a (4) usage by employee; up ted his and cover which established his criminal ac- single jury tivity form for the alter- accessory crime verdict to be an after the fact. Wyo.Stat. of either murder or majority native crimes 6-5-202 The § eliminating premeditated Bouwkamp’s murder the re- takes admitted conduct of be- quirement ing and, reach unanimous jury accessory by that after the fact use prov- agreement on the essential elements of the transference of time instruction Cloman, ing happened “what when does matter,” proves guilt of an offense by II. which was denied the accused. At the time, Bouwkamp permitted same is not INTRODUCTION jury define his of defense in instruc- Bouwkamp’s involvement in a terrible Wyoming tion. Supreme The Court comes tragedy totally unnecessary absolutely and prosecutorial preeminence to this status of unjustified appeal. in is not at issue by interesting three observations. presented right What is his constitutional first is admission within the course of litigative opportunity properly de- participation only post-murder evénts to in in fend order that a homicide another wrongdoing, it is not a defense to the crime “ not, person through presumption does from prosecuted. The second is would ‘[i]t instruction, in his result incarceration confusing jury have been for the to be my analysis, for life for that crime. In charged, instructed on a crime not and one ” adequate oppor- was denied an they Maj. on which could not convict.’ tunity against at trial to defend the first State, Miller v. op. (quoting at 491 charge. murder (Wyo.1988)). P.2d And then final- ly, sequence unimportant of events is Consequently, I dissent. killing precedes, whether the coincides with issue, Bouwkamp In first asked for a robbery or follows the to demonstrate re- theory of defense instruction which defined quired necessarily in perpetration involved responsibility accessory his admitted as an guilt. after the fact. He denied that instruc By sequential analysis, it is obvious represented by tion on the basis now reasoning Wyo. that course of reconstructs majority that he was not entitled to such a 6-5-202, fact, Stat. after the admitting post-death § after defense involve preemptive co-participant stature in into contributory responsibility ment denied though the homicide even the actual facts companion pled when his admitted to and determinably in particular case my opinion, to the homicide. in contrary. Wyoming applied law is applying claimed instructional error legislative contrary fashion intent presumption participation in the homi Wyo.Stat. in enactment of 6- determined § post-death cide the occurrence of mis easily understood explicit 5-202 in its improperly presumption conduct contains Allied-Signal, See applied provisions. guilt as a I contin basis conviction. Equaliza- Wyoming Inc. Bd. disagreement ue in further to be disen tion, (Wyo.1991). State, chanted with the Cloman v. (Wyo.1978) justify dictum to alter components A of this hard look at guilty jury conceptualiza native decision it, majority’s syllogism demonstrates tions, longer which elements no need una text, lacking logic shaky to be State, decision. Price v. nimity majority an- precedent. foundational C.J., (Wyo.1991), Urbigkit, P.2d 909 dissent jury could have convicted nounces that the ing; Prime v. (Wyo. aiding abetting pre- Bouwkamp of J., 1989), Urbigkit, dissenting. simple meditated murder. The answer separate Bouwkamp’s defense that is the did not make The entire basis of likely It is more was in denial that he caused or assisted decision. *12 upon accessory sufficiency

decided the case based tion. This is not a of the evi- establishing complicity in appeal; after the fact dence structured for consideration robbery, questions instruction, which then related back to the pre- are the basic murder, creating felony prior and sumption homicide and form. verdict provided required proof of first then Absolutely nothing preclu- in this record yet simple The second degree murder. an- sively Bouwkamp demonstrates that de- actually no one can determine swer is that sired, agreed, supported assisted or jury record that the did not from this travel or, conversely, homicide that he did not pathway exact decisional down that all; except intend to do each and his testi- degree appeal murder verdict. This mony, which was the definitive evi- presents anything jury decision be- but Belle, subject. dence on People v. La yond unanimously de- a reasonable doubt N.Y.2d 276 N.Y.S.2d 222 termining Bouwkamp’s guilt of first (1966). Realistically, absolutely N.E.2d 727 murder. establishes, nothing in this record as the characterization, In this is case where jury case was instructed and the verdict Bouwkamp is told there is a constitution submitted, that the conviction was based on in right process providing and a to due anything except the obvious and admitted defense, jury theory of the not in his but following after the fact conduct regularly his case. We recite that for a unexpected and undesired alcoholic-in- trial, jury litigant provided right precipitated duced blackout homicide com- stating to have instructions mitted Donald Lennick without reason case,1 told, Bouwkamp of his but “not in case, pre-planning. perhaps In this your A fundamental rule of crimi- case.” Bouwkamp deserves a life confinement nal in this state is that the ac- conviction participation sentence for in his these cused is entitled to a unanimous verdict as tragedy dysfunc- events of and alcoholic principle of constitutional law under the I seriously question tional behavior. Wyoming Constitution before the accused comprehensively justification dissent from (formerly is convicted. W.R.Cr.P. 31 imposition retributory pun- of that 32) identifies verdict shall W.R.Cr.P. “[t]he ishment conviction of first mur- Const, unanimous,” Wyo. art. § may expected der for an event he not have provides guarantee, in but not and, fact, its commission he case. was convicted without participated.2 have requirement render a unani- mous on either his or involve- verdict III. premeditated of- ment as one A THEORY OF DEFENSE fense, murder effectuated in- robbery Finally, the tended as another. order to address this and the follow- issues, majority Bouwkamp ing appellate has not followed for three a factual under- Montana, standing required. Sandstrom v. U.S. the case is Bouw- (1979)require- kamp, regularly employed 99 S.Ct. 61 L.Ed.2d 39 Montana con- area, working ment that a conviction cannot re- tractor criminal who came Buffalo, usage mandatory presump- Wyoming sult en- town State, State, (Wyo.1991), (Wyo.1984); Scheikofsky v. 808 P.2d 190 v. 636 P.2d 1107 McInturff C.J., part dissenting Urbigkit, concurring State, (Wyo.1981); Goodman v. 601 P.2d 178 State, (Wyo. part; Ramos v. 806 P.2d 822 State, (Wyo.1979); Goodman v. P.2d 400 1991); State, (Wyo.1990); Oien v. P.2d 544 State, (Wyo.1977); Benson v. P.2d State, (Wyo.1990); Thom v. 792 P.2d 192 Thom Hickenbottom, (Wyo.1977); Wyo. State v. State, (Wyo.1989); v. 784 P.2d 237 Smith v. 178 P.2d 119 State, State, (Wyo.1989); P.2d Keller v. 149; Prime, (Wyo.1989); 767 P.2d thoughtful cogent analysis, see Nel- 2. For State, (Wyo.1988); Simonds v. 762 P.2d 1189 Sundby, Felony- E. Roth & Scott E. son Miller, State, 855; Best v. 736 P.2d 739 Cross- Murder Rule: A Doctrine Constitutional State, (Wyo.1987); Noetzelmann roads, L.Rev. 446 70 Cornell State, (Wyo.1986); 704 P.2d 1300 Ellifritz (Wyo.1985); Stapleman Lennick, employee, question Donald is no about both gaged his defendants’ re- evening barroom drink- sponsibility an afternoon and for criminal conduct. What is during they met ranch ing episode Bouwkamp’s right at issue is to have a hand, Lucien Millox. The three continued properly instructed and directed deter- drinking through evening and when the mination whether post-homi- he committed closed, argument, despite an earlier bar concealment, murder, cide or actual- leaving try to find a found themselves ly participated premeditated *13 night driving away In party. late States, A.2d Clark United by their Bouwkamp’s pickup, complicated (D.C.App.1991). state, the three men con- drunken became strange phenomenon There is a that has highway inter- stopped fused and at a developed jurisdic in recent cases in this parked change they outside of town where tion where this court has been asked to highway underneath interstate for Mil- requested theory examine of defense in Bouwkamp lox to answer nature’s call and Apparently, majority structions. try they to determine where were. argument seems inclined to substitute oral parked, then For whatever reason while long pro for constitutional and defined got fight Lennick and Millox into result- right Wyoming cedural under law to have being stomped ing in Millox to death. litigant/defendant’s an instruction as to the There actual who sur- were two witnesses theory I categorically reject ease. Bouwkamp, he vived: who testified that concept expressed Bouwk- “[w]hile left the immediate scene before the fatal amp permitted was not this instruction fight erupted top high- to check on of the [theory defense], compro he was not location, way exchange to determine their arguing Lennick, interpreta mised his alternative testified that he had an who jury.” Maj. op. alcoholic blackout and did not know what tion of the facts to this happened. Bouwkamp Appended concep had testified that 491. to this error is the stop killing he tried to he when came tion derived discussion about Ellifritz vehicle, to the shoved back but was aside State, (Wyo.1985). The dis by Lennick. ignore simply cussion seems to or fails to understand what was meant Bouwkamp then testified about his fur- Ellifritz theory the difference between of defense participation in an ther effort to hide evi- Bouwkamp pro limiting and a instruction. might implicate dence that him. There was posed limiting His instruc no instruction. absolutely predisposition no evidence of a committing tion was that he admitted an of either defendant to have committed a offense, homicide, way in no intended that admis robbery except in advance of the but subsequent Mil- prove events where Lennick took sion to another offense which had Bouwkamp property lox’s for his use and just pragmatically occurred earlier. It is presence took items to conceal his own theory suggest untrue to that the entire participation. anything in this case was other defense recognition responsibility of criminal than It is within this factual scenario that the fact, categori accessory after the but theory of defense instruction issue cre- fact, accessory aid cal denial of before process utilized ated. With decisional abetting principal participation in ing or by court and factual admissions of the trial Consequently, the af fact, Bouwkamp’s after the mur- clearly dem conviction, message of may firmative der whatever have been his Ellifritz why requested instruction guilt, realistically guaranteed.3 There onstrates may suggest have been committed curred. The offenses I do not review of the evidence perspective favorably culpability con- viewed in a most act or the co-defendant without realistically provide factual may viction would not by Bouwkamp, not have and those offenses appropriate separately decision issues fight an alcoholic-induced occurred at all where perhaps premeditat- murder or on either senseless loser lost his life in the started and the partic- offenses with ed murder. One ipation both brutality progression of human conduct. of the of both co-defendants have oc- given. Bouwkamp should have been instruction foreclosed from his right constitutional 704 P.2d at we said: to defend. It Ellifritz, belies belief this court can assert that a duty court has a to instruct The trial right defendant justifying has a to defend principles applicable general * * * theory of defense pre- instruction and then A defendant has the to the case. clusively deny constitutional access to due theory right have his of the case af * * 4 process by rejection theory of that of de- firmatively presented jury. unjustifiable fense instruction. The duty properly court has a trial unsupported right assertion that a to a theory instruct the on defendant’s theory of defense instruction can re- though of the case even instructions of placed argument oral at the close of the correct,” entirely him are “not fered in any case cannot be authenticated other course, provided, they are sufficient to of our nation’s courts. Here the constitu- apprise the court of the denied, right tional but even worse it is defense. *14 by inappropriate illogical jus- denied principles The that we have set out argument tification for the oral substitu- course, only applicable, of if are [above] large body tion. Within the of national law competent there is evidence in the record involving litigants’ instructions for the the- support theory defendant’s of the ory case, Wyoming goes alone down by appel- offered case. instructions argument pathway. the oral theory lant are not of the case instruc- I suggest proposed do not that the in trial, appellant tions. At did not offer process pursued by Bouwkamp, struction “theory of these instructions as court, adopted by the trial or authenticated instructions; rather, they case” were of- by majority this adequately considers an limiting fered and refused as instruc- appropriately theory worded of de appeal appellant tions. cannot ele- On Overtly, phrased fense instruction. one as: vate these offered instructions into “the- theory “It is the of the defense that the by ory simply of the case” instructions defendant, Bouwkamp, guilty Marvin was calling them such. of conduct which is defined as the crime of Factually contrary Ellifritz, this is a fact, accessory after the which crime is not theory case where a of defense instruction here, charged but claims innocence of ei requested majority and this now turns felony premeditated ther murder or mur request something by into else name der, charges prosecuted,” which are the redesignation. The instruction did not sin- presented could have been and should have evidence, gle certain but instead de- out Clark, 186; given. been 593 A.2d concept body fined to the entire relative Gelormino, Conn.App. 590 A.2d is, all, presented. of evidence That after denied, cert. 219 Conn. 593 A.2d theory what a of defense instruction is comparable usage intended to do. The of a My objection most strenuous to the ma- theory prose- instruction for benefit jority opinion significantly would have been State, cution in Keser v. if ameliorated the decision had been based (Wyo.1985) comparable and illustrative. argument right any theory on the It is not often when an affirmative defense of defense instruction was waived fail- as it was in that case instruction is utilized properly phrased ure of counsel to tender a discipline prosecution. benefit Parental instruction for considera- the trial court’s justification structurally in Keser is no dif- State, Delaney Wyo. tion. 81 P. ferent as an accesso- than sole involvement generic Surprisingly, no de- ry argued by Bouwkamp. after the fact (except theory fendant’s of defense doubt, majori- indirection) Without in the face of the any guilty by kind was murder, ty’s approach temporal actually given to aid and relationship theory and one verdict form either their That instruct deliberation. however, was, premeditated or both murder or defined of defendant murder, relating to the defense theory the denial of a of defense tendered instruction Bouwkamp only consequent justification involved as an tiation and why accessory Bouwkamp the fact. The concealment was not after entitled to an instruc- instructions, flight given theory Goldson, tion on his of his were case. 55; successively, Lybarger, 954 F.2d then converted contended P.2d at 579. simple in instructional accessory status of after the fact into statement Bouwkamp’s theory of defense evidentiary proof structed of homicide was that he participate did not the homicide and guilt. flight Concealment and instructions became involved as an prosecution given; after the as theories of were fact, separate crime, which is a would have countervailing theory of defense of acces clearly appropriate been a instruction as a sory after the fact was denied. Laud Cf. (or theory proper of defense. A improper) (Ala.Cr.App. 555 So.2d erdale proposed instruction nothing has to do with 1989). this court’s comments: clearly apparent It is that lack of under- rely did not on a defense standing portrayed in majori- exists as recognized by Wyo.Stat. either 6-1-102 § ty the difference about between substan- theory court that would merit a defining legal tive instruction constitu- Instead, the case instruction. his true ency particular defense, e.g., self- simplest defense was the and most direct homicide, compared defense in to a state- of all: he denied of the crime ment instruction of the of' de- charged. argued He he was not fense, e.g., non-presence and alibi. The killing Millox,although willing he was legal pro- former defines the criteria of a *15 helped up to admit that he cover defense; posed the latter advances reason words, by In other he defended for defense and cause consider non-con- claiming to be innocent of the crime guilt viction as a matter of determination. charged. argument this he On received State, (Wyo.1992); 825 P.2d 379 Dice v. adequate instructions. Felix-Gutierrez, v. 940 F.2d United States Maj. op. at 490-491. (9th Cir.1991). 1200 Theory of defense instructions are to theory The of defendant’s case in con be derived from and address criminal de- concept People structional was stated v. provided by fenses statute or ac- Sears, 180, 711, 717, Cal.Rptr. 2 Cal.3d 84 knowledged by this court. 847, defendant, 853 as “a op. Maj. at 490. therefor, upon proper request right has a Bouwkamp’s offered instruction de- to an instruction that directs attention to the crime of after the scribes evidence from a consideration of Suggestion of an alternative fact. guilt reasonable doubt of his could be en charge is not a crime defense Goldson, gendered.” v. See United States being prosecuted. (2d Cir.1992) 954 F.2d and Lybarger (Colo.1991). Id. People, P.2d 570 v. See People Mickey, also 54 Cal.3d properly simply These comments do not (1991). Cal.Rptr. This is right a theo- address the of a defendant to pinpointing

the difference between and de ry apparently instruction since of defense State, legal application. fining Best v. 736 suggesting only formal “defenses” (Wyo.1987). P.2d 739 Goodman v. theory instruc- by can communicated be Cf. (Wyo.1977). sepa P.2d 400 The contrary, it is the reason for tion. To the distinguishable subject rate and of fact- non-guilt properly that is included argumentative which, directed instructions is not in this theory of defense instruction presented appeal. People in this proceeding, Whar is a denial of and concur- ton, Cal.Rptr. hap- explanation admittedly Cal.3d of what rent — denied, U.S. -, pened accessory P.2d 290 cert. after the fact. — 116 L.Ed.2d of dif- conjunctive confusion lack

My overwhelming highlighted by the further concern this case is ferentiation is majority opinion: by majority’s language failure in used in the caused differen- legal a defense in character. One terms of However, is another fundamental there strategy, approach not met the overall which was involves precedent condition 379; Sears, Dice, Cal.Rptr. instruc- instruction. The by the offered prop- 711, instance be a in the first and the second addresses must tion case, theory of de- application of rules of legal aspects er is, fense, That the offered instruction. law to define conduct. Stevenson Unit- recog- a defense present must States, instruction 162 U.S. 16 S.Ct. ed juris- in this or case law nized statute example of the L.Ed. 980 As Bouwkamp con- instruction diction. The that he was not explanation defendant improperly refused did tends was defense, de- would but not a there be a defense. present such defined, created or matured stat- fense rules of law. By language, which ute or op. this Maj. subjects, entirely different intermixed actuality defense to a criminal constitutional denied his was encompasses possi- charge three different advised about right to have First, concept, simple is a denial bilities. his defense upon which strategical basis prosecution to guilt, e.g., failure of the presented.4 organized essential elements of the crime prove the exception stronger I take even offense modifica- charged. The second is majority opinion justification stated justification, the third is excuses tion and adequate proper is a argument oral non-exculpatory Within the defenses. providing a for an instruction substitute totality categories, these there theory of defense: A to conviction. footnote multitude bars permitted Bouwkamp was not While text of 1 in the well-established definitive instruction, compromised he Robinson, Law Defenses Paul H. Criminal interpretation alternative arguing his (1984 Supp.) & 1988 lists at 70 n. § vigor- jury. He did so the facts to the fifty. further outlines more than That text through his counsel’s efforts ously, both categories of “de- appropriately the three *16 testimony as to the through his own in criminal cases: fenses” involved Millox’s death. events of nothing proof are Failure of defenses Maj. op. at 491. where, than instances because more support this no cases cited to There are “defense,” prosecution the is unable regarding adequacy exceptional proposition required elements of the prove all the proper argument of oral as a substitute conduct, offense, circum- objective can be found nation-

instruction and none stance, their cor- and result elements and prior Wyoming except possibly in one wide culpability requirements. Of- responding problem in this case is that case. The real in that fense modifications are similar admission, the fact as accessory after modify or refine the they essentially instructed, preclusively deter- the case was in the criminalization decision embodied though jury might guilt, even mined The re- particular offense definition. everything that nearly have believed justi- maining groups of three defenses— testimony. in his said fications, excuses, nonexculpatory defenses; they general terms, defenses—are presented are linguistic In we offenses, theoretically apply to all even instruction between monumental difference required elements of an of- presented by when theory defense on the represent prin- They fense are satisfied. presentation of Bouwkamp or the Dice, theory provided. 825 P.2d 379. is on acces- in the section 4. As I hereafter discuss fact, majority in the is endless in consist sory applying comment law the rule after the Case since, course, 73; partic- wrong substantively application. Stapleman, is ipation only ent accessory after the fact would Torcia, as an Criminal Proce E. Wharton’s Charles defense; segment, the proper but in this be a (12th 1976). Sellers v. at 11 ed. § dure Cf. wrong procedurally since the ac- — is comment denied, State, (Okl.Cr.), cert. P.2d 676 always of his entitled to an instruction cused is theory U.S. -, 116 L.Ed.2d 252 112 S.Ct. support if viable evidence to of defense guilt. op- proposition that because he denied That exculpation or defense ciples of Wyoming the criminalization independently totally insupportable is either erate particular in the of- just plain wrong. reflected general decision law. It is is justified of a actor fense. The conduct conceptualization Equally invalid is the out- culpable its benefits not because required offense a lesser included weigh harm or evil of offense justify instruction instead of the itself; the harm excused actor admits an against after the fact to defend first de- an nonetheless claims absence or evil but majority opine gree murder. The seems to culpability; and an actor ex- personal Bouwkamp’s if defense raised second nonexculpatory defense ad- empt under a homicide, negligent murder or culpability and his mits the harm or evil ap- theory of defense instruction became public policy upon important but relies propriate; since he denied homicide but blamelessness, interest, apart from guilt completely only recognized after the defendant’s by foregoing furthered responsibility, occurrence criminal conviction. appropriately in- was not entitled be omitted). (footnote Id. 70-71 Contrary logic to the of the ma- structed. decision, jority guilty always an “ac- terms, Dictionary Black’s Law simpler my opinion. A ceptable defense” (5th 1979) states a defense is a ed. theory should accom- of defense be party, response claims of the other jury proper- panied by right to have the why claims setting forth reasons regarding the nature of ly instructed The defense granted. should not be the defense is claimed. events from which denial of the other simple as a flat allegations may involve party’s factual court, through confined construction This allegations. In the entirely factual new misunderstanding appropriate situation, an affirm- latter the defense is instruction, theory of defense function of a ative defense. recognized the rule continuously has defenses to criminal As an itemization of simultaneously justified non-applicat its samples charges, only lists as that resource gone This court has backwards ion.5 subjects. fifteen different about continuing to state and long way while argu- fallacy majority The intrinsic right de apply the constitutional then not theory that a of defense ment is contention permit the defen obligation fined if only it relates to instruction is available by statement adequately dant to defend defense, properly acceptable affirmative of defense. Sta instructions general if denial defense is but not (Wyo. pleman *17 presented: 1984). rely a defense Bouwkamp did not on Staple- subject well defined was Wyo.Stat. 6-1-102 or recognized by § comprehensively and this court man when theory merit a of this court that would Wyo- prior law of correctly summarized Instead, his true the case instruction. gener- concepts ming the constitutional simplest and most di- was the defense jurisdictions American ally applied by all the crime guilt he denied rect all: of of law: for criminal argued he was not He charged. Millox, willing killing although he was has offered of instruction been When an helped up the theory that he cover of de- to admit presenting the defendant’s words, by he murder. In other in- fense, or a similar instruction defended innocent the crime claiming to be if presented to the must be struction of he received argument this charged. On competent evidence. by supported it is * * * adequate instructions. to duty of the It is the theory added). present (emphasis Maj. op. at 490-491 request- when in his instructions defense stating is that Bouw- majority is What the * * * Therefore, by ed the defendant. unavailable kamp’s theory of was defense 1, supra. in n. 5. See cases cited presumed to see if must look the record there fense was since the admitted

we competent requiring robbery an af- had subsequently evidence occurred. was presentation of firmative defendant’s reject approach deny I majority’s * * case, specific theory *. in- [In Bouwkamp theory the discussion of his of necessary to steal tent conviction.] responsibility defense related to admitted fact, accessory after is the as an which Cardine, writing Id. at 75. Justice subject to left next be addressed. We are Stapleman, consistently opinion in fol- explanation any why theory without commanding criteria earlier set lowed defense instruction in terms similar to what Goodman, 400 and Blake- forth in 573 P.2d Miller, given in P.2d 855 would was State, (Wyo.1970). ly v. P.2d Dice, appropriate not have been here. time, ap In more recent the occasion 379; Oien, 544; Goodman, P.2d 797 P.2d process principle anchored in ply this due Hickenbottom, 400; v. accept find American law does not seem to Wyo. 178 P.2d 119 State, in this court. ance McInturff v. position it was the Since C.J., (Wyo.1991), Urbigkit, concur defendant’s P.2d 190 accessory that he was Ramos ring part dissenting part; after fact, an that character or instruction State, v. See (Wyo.1991). P.2d 822 providing message the same should have State, (Wyo. contra Oien P.2d 544 given part proper been instruc- State, 1990); Thom v. (Wyo. P.2d 192 process, suitably tional whether or not State, Stuebgen 1990); 548 P.2d 870 requested by Bouwkamp, in order State, (Wyo.1976) and Murdock v. for they to understand were the decision (Wyo.1960). In with this accord court’s result, Bouwkamp chosen to make. In Price, decision, immediate see . any upon denied which his Prime, P.2d 149 guilt could be based. The one defense crime, Bouwkamp Following denial of his admitted, predeter- which he then instruction, theory of defense the second presumptive another mined step presumptive in- in his conviction crime, which he denied. application struction was the court’s trial objection of Instruction No. 15 to which IV. was taken. That instruction stated: purposes establishing THE FACT For the ACCESSORY AFTER murder, killing crime authority Case on after robbery, perpetration occurred in the fact, 6-5-202, Wyo.Stat. only one reveals § unimportant sequence of events is appeal direct- actual where the statute was killing my precede, and the coincide with Stephens ly involved. robbery or follow the and still be commit- (Wyo.1987), conviction was reversed perpetration. in its ted insufficiency of the evidence of basis criminal conduct the defendant. argued Since the defense participants classification of differentiated non-complicity in homicide which was *18 carefully de- responsibility in criminal was by his involvement as an followed admitted State, v. Jahnke 920- fined fact, the non-involve- accessory after the pros- (Wyo.1984), although the case was upside ment was down defense turned abetting case aiding as an and ecuted preclusive for become a factor conviction. category enumeration which is a two result, No. 15 took the acces- Instruction opinion: provided in the sory and defined after fact admission relationship Wyoming abrogated has the common- that since a time was relative principal, aider unimportant, guilt murder was estab- law distinctions between abettor, accessory factually true or and before lished whether or not law, into felonies. given turned fact At common false. instruction felony into four Sandstrom parties for to a were divided presumption (1) in the first de- categories: principals That of- degree offense of first actor, perpetrator, adequately en gree explained or actual the defendant’s —the offense; (2) “theory principals proposal the second the case.” A defense present, aiding paragraph for an additional defining who are —those accessory elements of abetting the commission of the of- after the fact was rejected fense; (3) being only “argument for the fact— on the accessories before [charged wisdom of the present Id. at those who are not at the commis- crime].” crime, given 865. The instruction in Miller was sion of the but who have coun- essentially Bouwkamp requested what seled, procured or commanded another to was denied this case. Our it; decision commit after accessories support Miller legitimacy would who, knowing fact—those has Bouwkamp’s request opportuni- to have an committed, receive, relieve, been com- * * * ty to define the of defense as an fort, or assist felon. Our stat- instruction the case. The differentiated respect catego- ute with to the first three accessory involvement of the after the fact indicted, provides “may ries that each Vialpando issue in against, informed tried and convicted (Wyo.1972), grant as a cause for the of a princi- the same manner as if he were a * * trial, new validates the Miller instructional 6-1-114, pal.” *. 'Section W.S.1977 process. The result is that differences in the man- participation parties ner of A precedent pro- review of the national of a commission do not affect no rejection request vides basis for culpability their individual for the crime. advise the partic- of the nature of this Each, question ular defense. No principal, whether he is the an existed about abettor, criminal conduct after the accessory aider and or an homicide had before occurred; fact, question participation by principal is treated as a perpetrator, as an actual an purposes punishment. Section 6-1- aider and accessory abettor or an before 114, W.S.1977. provide the fact which would criminal recognized Jahnke further in footnote that responsibility principal. identical with the classification, the fourth common-law ac- Conversely, accessory an after the fact fact, cessory separate after the was a of- Wyoming within law faces a far less severe fense under the state statute. n. Id. at 921 punitive responsibility. First mur- Burdick, See also William L. Law of mandatory der carries a life sentence while Crime at 301 § penalty accessory for violation of the Miller, similarly 755 P.2d at 864-65 was statute, principal after the fact if the of- prosecuted accessory as an before the fact felony, presents maximum of fense was a given by and the instruction the trial court $3,000 fine, years imprisonment, three stated: 6-5-202(b)(i). Wyo.Stat. both. § position “It is the Defendant’s that he majority correctly assesses that ac accessory an after the fact. completely cessory after the fact is a inde The defendant maintains that he did not crime, 855; Miller, pendent counsel, hire, knowingly encourage, com- Jahnke, 3; Vialpando, P.2d at 921 n. procure killing mand or of D. Law- 939; Zierlion, Ill.2d People rence Leland Duane DeGroff [sic] also is not a 157 N.E.2d 72 However, killing once the had Brown. principal for the lesser included offense occurred, the Defendant concedes that he perpetrator’s Key, crime. accessory became an after the fact. However, (Mo.1967). the ma S.W.2d charged be- “The Defendant is not recognize generally in its jority does not ing you If after the fact. question it is a of fact discussion that *19 find that the Defendant not aid and did charged participation of the whether the fact, you abet the homicide before the culpability exposed individual him to the guilty.” must find the Defendant not principal only or punishment level of as a case, accessory In the this as an after the fact. State v. decision Miller Sullivan, N.J.Super. 185 A.2d 410 giv- court determined that the instructions ques- factual which was would raise serious constitutional (1962). It was that issue into defenses the Due intrinsically woven tions under at least Process deny guilt to presented by Clause in federal document its premeditated or mur felony murder counterpart either in our state constitution. as der, co-participant principal, as a either course, accessory after the is a Of fact or for accessory before the fact being an completely sequentially different and dis- abetting status. Id. aiding and See an conspiracy, aiding tinct offense from Nordahl, 208 Mont. also State abetting, accessory par- or before fact Lauderdale, 555 So.2d Cf. ticipation principal crime. Key, Here, 100; Nordahl, 679 P.2d 241. S.W.2d subject Lacking instruction on the felony were initiating offenses approved used and similar to what was Further, premeditated murder. it is way Miller, no could there was accessory clear after the fact would Bouwkamp’s the nature of de- understand not be a lesser included offense of either Furthermore, lacking the instruc- fense. felony premeditated murder or murder. to tion, proposed support Bouwk- evidence Law Am.Jur.2d Criminal § first murder be- amp’s acquittal on to convict prosecutorial came ammunition accessory after the fact is one theory A him for who, knowledge guilt, the other’s absolutely was critical defense instruction assistance to a felon the effort renders of his achieve consideration even detection, arrest, his trial or hinder defense, accepted then be whether punishment. requisites: There are four jury’s a matter for the rejected, which is (1) A have been felony must committed A factual issue finding providence. fact another, must have and it been com- in effect defense was foreclosed his pleted prior aecessoryship, to the act of from denied instruction directed verdict necessary not that a formal although it is error, preemptive both constitutional charge against shall have been filed Sandstrom, 442 U.S. the nature of time; (2) principal before this felon of due 2450. Both were violative himself must not be process, any right to and denial of realistic (3) felony principal; he must do state Guarantee of both defend resulted. personally some assist the felon act to unrecogniz- were and federal constitutions consequences his effort to avoid Although derived from ed and unafforded. crime; assistance his must be situation, factual different somewhat guilty knowledge rendered with well addressed in principle basic was felony. Thomas, 325 N.C. S.E.2d N. Boyce, Ronald Rollin M. Perkins & (1989): (3d 1982) Criminal Law ch. at 748-49 ed. always by the A show defendant (footnotes omitted). only his innocence under the evidence accessory after the is Although an fact chosen theory prosecution present when ordinarily not possible guilt of some also his State but committed, is re- his absence offense is If this lesser lesser offense. Thus, quired. person present who was charged in the in- in the crime included committed, in no when but sup- if there evidence to dictment and way abetted its commission— aided or have it, entitled to port the defendant qualify principal as a and hence did not jury. These different it submitted degree may become an second abrogated cannot — theories of defense by rendering aid accessory after the fact prosecute nor by the decision State’s in order thereafter to facili- felon to submit the the trial court’s decision escape. tate his prosecutorial case on one person become an accesso- A does not the evi- under the indictment and when merely by knowing and ry after fact another more favorable dence adduced person failing that another to disclose To hold otherwise to the defendant. *20 507 1991); felony; has committed a nor does he United Longoria, States v. 569 F.2d (5th Cir.1978); accessory by State, an after the fact become Gordon v. (Alaska 1975); Sims, P.2d 25 failing apprehend by ap- the felon or State v. 302, 306-08, 17, Ariz. shown, (1965), 409 P.2d proving felony. It must be denied, 980, 1880, cert. 384 U.S. addition, that he rendered aid to the (1966), L.Ed.2d 691 “[unquestionably, felon. preconcert, absence of pres mere accessory after the fact ren- Since person ence of a place at the time and underlying ders aid to a felon after the aider, crime does not make an abettor or a completed, has he cannot been be principal;” State, and James v. 144 Tex. regarded having caused the 126, (1942), Crim. 161 S.W.2d 285 be committed. recognized possibility of the innocence in Torcía, 1 Charles E. Wharton’s Criminal principal offense and sequentially sub 33, (14th 1978) (foot- Law at 170-71 ed. § sequent involvement another crime. See omitted). *21 508 It majority’s confirmatory decision. arises subsequent to the commission

taken entering necessarily breaking do Cloman, and concept liability to that of an a defendant’s limit unimportant temporal relationship that after-the-fact, as accessory consideration by regarding instruction the causal rela the intent the actors. taken of must be tionship between the and the homi particu- fact whether a question of It is a that, fact, in practical cide. The mistake is fairly crime committed was act or lar constituting connection more than causal scope of the common the intended within required coincidence and accident or enterprise or concerned criminal temporal relationship factor is a relevant of the offense. commission with the the causal determination. To state other being convicted of cannot be The-accused ignore wise the fundamental basis of if fact actions con- accessory after the an recently murder addressed accessory accom- acting an or as sisted Supreme United States Court Schad v. Williams, v. plice to the offense. State — 2491, Arizona, U.S. -, 111 S.Ct. 115 348, (1948); People 49 617 229 N.C. S.E.2d recently more L.Ed.2d 555 and even Cal.Rptr. 282 53 Cooper, Cal.3d v. (1991). Supreme Mexico P.2d 742 the New Court State 112 N.M. 817 P.2d Ortega, ac- majority ignores misapplies and This (1991). Calvin & Paul B. See John Jeffries and law a cessory after the fact op- Stephan, which denies his Defenses, Presumptions, distillation and portunity to defend the Law, Burden in the Criminal of Proof Belle, 222 La charge which he faced. (1979) Yale and Herbert L.J. be 727. The standard should N.E.2d Michael, A Wechsler & Jerome Rationale recently stated Davis followed was I, 37 the Law Homicide: Co (Miss.1991): State, 586 So.2d (1937). lum.L.Rev. evidence equally It matters not legal regard- The case law and literature overwhelmingly establish the defen- ing felony murder is near endless. See We dant is of other offenses. (Wyo.1991), Meyer, 820 P.2d 70 Engberg v. adequate- the evidence not affirm unless C.J., undergirds particular Urbigkit, part ly dissenting conviction con- the accused has been offense part. Perhaps many as curring as indicted tried. journals more law could hundred or Jewell, N.C.App. State v. listed cases number See also individual (which determined 409 S.E.2d thought- most the thousands.6 One of the charge the fact that an after ful comes from New Mexico Orte- cases prosecution as a joined in criminal could be ga, at 1201: offense, charge principal separate legal have been as “Few doctrines not be the defendant could convicted but yet great maligned and shown as have time); Com. v. McFad at the same both resiliency felony-murder as the rule. (1972); den, Pa. A.2d constitutes a lexi Criticism rule Com., 157 S.E.2d 907 208 Va. Jones everything con of that scholars and Perlmuter, Note, E. Ex Gary Cf. jurists wrong legal can find with a Accessory the Fact cluding an After Conviction, 37 as Felony-Firearm it has been described ‘as From doctrine: Wayne L.Rev. ‘monstrous,’ insup tonishing’ and portable ‘legal [citing fiction’ State v.

V. 439, 442, Harrison, 90 N.M. (1977) ], unsightly AND TEMPORAL RELATION- ‘an wart CAUSAL THE FELONY law,’ BETWEEN SHIPS skin of the criminal AND RESULTING HOMICIDE remnant’ that has an ‘anachronistic ‘ practical for exist logical “no basis infirmity in- There is a further ’ ” case ence in modern law.” process of this and this structional 9,188 by a 6. Westlaw counts cases term search. Sundby,

Roth Felony-Murder & support Cloman the cases cited in do A *22 Rule: Doctrine at Constitutional provide foundationally legal firm Crossroads, 446, 70 Cornell L.Rev. 446 principle to applied be without relevancy * * (1985)(footnotes omitted) *. As indi- legitimacy and every in case where there passage, cated in this dissatisfaction with was a felony and' there was a homicide and felony-murder the doctrine has been nothing more. The felony mens rea of the widely expressed by both courts and has to relate to the event of homicide in a commentators!7! Sachs, Note, relational fashion. Leslie G. Due Process Concerns totality law, Require- and the Within the of the whether ment a Strict Causal writing Relationship derived from Justice Souter for the in of Schad, plurality Felony in Murder writing Justice Scalia Cases: Conner v. Director concurrence, special Corrections, or Justice White in Division Adult 23 of dissent, anywhere Creighton in (1990). else the ocean of L.Rev. 629 words, there is a felony ratio decidendi for any The viciousness of arbitrary and il- murder defined as transferred intent. Sim- logical rule clearly is demonstrable here. plistically, felony pro- commission of the assume, should, If we we for a vides the mens rea to substitute for perspective defense that —and premeditation required otherwise for first activity sole—criminal of Bouwkamp was degree that, murder. This is the reason fact, committed accessory as an after the dependent upon jurisdiction, the kind of approve then to conviction degree of first felony in some states the kind of felo- —or murder, we have to reconstruct what the ny murder —determines the mens rea accessory offense of really after the fact felony factor whether the commission is in order separation, to utilize its both in felony sufficient to make the murder into a time and arbitrarily conduct to create a capital degree or first murder offense. See guilt potential mens rea for capital Michael, Wechsler Herbert & Jerome su- offense first pra, 37 Colum.L.Rev. 701 and Rollin M. Perkins, Rea, A Rationale Mens sequence unimportant, If the time then (1939). Harv.L.Rev. 905 People See also v. unwitting activity of the innocent doc- Lee, 1214, Cal.App.3d Cal.Rptr. assisting tor in John Wilkes Booth after (1991) People and Phillips, v. proper- the President Lincoln assassination Cal.Rptr. Cal.2d 414 P.2d 353 ly penalty created responsibility. a death harborer, assistor, family pro- and the tector, statute, if covered mens rea—intent—state of the mind felony though in commission of the serves to trans- even the conduct occurs some sub- fer years— murder from the stantial time later —weeks or even felo- ny any resulting logical homicide. This then felony becomes of the murder progression why demonstrates consequently, academically, the dicta least recognizing applied vengeance predisposed willingness Felony In and the tent or to kill. prescriptive Mexico, simply character of the statute for New in most cases serves to be a appended upon presump- proof, that court mechanism to reduce the burden of but requirement change tive malice a of intent to kill. not to the circumstance of intentional C.J., Ortega, Contrarily, killing. Engberg, (Urbigkit, 817 P.2d at 1211. the di- 820 P.2d 70 recently major change dissenting part concurring part). rection membership taken with the Supreme in the California Court Most homicides have an associated provided opposite People present truly has direction. few accidental murders Anderson, Cal.Rptr. killing. wrong provide 43 Cal.3d It is the cases (1987), overruling Superior Engberg, exceptions. P.2d 1306 Carlos v. See 820 P.2d at 157-59 nn. C.J., Angeles County, (Urbigkit, dissenting part Court Los 35 Cal.3d 42 & 43 Lee, Cal.Rptr. concurring part). People 672 P.2d 862 I would con- See also fidently expect Cal.App.3d Cal.Rptr. that New now leads the Mexico 574, 582, way constitutionally (quoting People Phillips, for mature and consecrat- 64 Cal.2d (1966)) jurisdiction legal Cal.Rptr. recognizing ed scape. within the American land- “ thoughtfully recognized variety ‘[ojnly It is in a minority that "inherently dangerous such felonies as are in themselves that, scholarly except sup- articles life" can in a to human cases, felony port application felony-murder murder defines a determined in- rule.’" felonies, any punishment prin- as the other of enumerated it same

subject regress by cipal, prove We for which could death. essential the state deliberate, totalitarian illogical willful, rationale premeditat- it * * * application of instant death as- societal ed. place proof the otherwise law. Sandstrom from the should ever initiated ly against comes directed verdict the same unimportant sically related as sistance I be have never believed mislead the theory applied. Consequently, the single Cloman, the evidence demonstrated a Obviously, Bouwkamp. robbery and same escape. of unit constitutionally of intent to rob. presumption instruction proof fact recognition Bouwkamp’s jury, of behavior cannot single Sandstrom as of cause homicides were We have although here it a thesis of criminal that on factual issue in Cloman could cause of conduct by disregarding that the short- a *23 Herein, be used to presumptions requirement. defense, developed temporal, effect similar- within intrin- the be- re- a that further after form Differing from the matters and having circumstances actual facts of the transaction and the as well as acts tory sense. perpetration of that crime in the statu- gestae of the initial emanation The res When his the so ^[******] explained: participation a direct causal fact, closely reality immediately the homicide is gestae thereof, it is committed in the * * * surrounding connected with immediately following Nevada part embraces not theory was as antecedent to and connection of crime, Supreme the within of an it, occurrence. and is an it but the res Court as to the the it, it case, presumption proof the clearly cut can obviate In this the murder was required pre- of the offense fits robbery, element of gestae within the res of the dissenting objection in cisely my into this it was so connected and associat- because to a statement used to override case broad robbery virtually as ed with to proper jury inquiry requirement for a effectively part it. become a of Under consequent factual decision.8 it possible properly no can be said that the murder was committed as an jurisdictions, has Within some this status independent act disassociated from the gestae been detailed within a res structure certain, therefore, robbery. It is that the description. the excellent One perpetra- murder was committed Fouquette, sources of discussion is robbery, tion of the within the true intent 404, (1950), 67 Nev. 416-17 * * * meaning fair statute[.] denied, U.S. 71 S.Ct. cert. (1951), denied, L.Ed. cert. U.S. no in this case It makes difference (1952): 72 S.Ct. 96 L.Ed. 691 unintentionally appellant killed whether deceased, claims, or whether killing perpetra- he When is done by appellant attempt robbery, killing to or of deceased perpetrate tion or also, Sandstrom, misleading speak pre- Long of it as a this in a somewhat before sumption all. the instruction murder case which reversed conviction based The effect of instruction, part: bearing presumptive part on a stated is to select evidence "Every person possessed is upon sound mind question, inform presumed contemplate the to intend and neces- proof beyond it alone reasonable doubt is probable, consequences deceased, sary, his and even defendant's intention kill the act," Wyo. deliberate Johnson v. upon bearing and that all other evidence which, by categori- P. 764-65 from subject be their considera- is to excluded from rejection, cal the court established: hold that a militiaman a sham tion. To battle, deliberately points and his who fires be sustained. This statement of the law cannot part body gun at a of his friend in vital presumption arise in A conclusive cannot line, him, opposing and kills cannot question upon any such a case material until considered, say cartridge found its upon heard the ball bearing all the it is evidence misadventure, way gun by beyond his fraud or proof into and the found to be reasonable then, merely it would be barbarous. would be as absurd as doubt. the intent is And evidence, and is Id. 58 P. at 765. inference the facts in it intentional, jury might because, as the hearsay, well have from the nature of found, things, because one who kills another in it is the act that creates the perpetration attempt perpetrate hearsay, and not the hearsay the act. arson, any rape, robbery, burglary, is Kuether City v. Kansas Light & Power degree by of murder in the first Co., 220 Mo.App. 276 S.W. * * *, regardless force of the statute “of (1925) (emphasis added). any question killing whether the was in- invalidity of the characterization as a tentional or unintentional. term murder- rules as derived Wooten, Id. See also State v. 295 N.C. from an evidentiary concept certainly is 245 S.E.2d 699 highly exacerbated when the term ap- Unfortunately, rule, plied Cloman when to define the relationship of discreet case, applied in essentially occurring advertised events within a continuum of it unimportant the felony whether time complexity of causes and from within the causing interrelated events differentiated Judge intents. Hand best homicide. Use of the characterization explained res in a involving case the accused’s *24 gestae may play either create a theory on words of defense where intent was an is- present or concept without reality in defi- sue: depends nition. It all ges- on how the res prosecution The seeks to defend the

tae in whichever characterization is to be exclusion on the that the testimo- defined, defined, defined. Is it time cause ny would have “self-serving,” been place or even anything defined? Or is it part that it was gestae.” of the “res just happened? that What else but “self-serving” the testimo- ny an person accused on his direct recognized Torcía, As in 2 Charles E. be, examination likely we find it Wharton’s Criminal Evidence at 233 § understand; difficult to and as for (14th “res 1986): clear, then, ed. “It gestae,” phrase it is a which has been way there whereby scope is no accountable for so much confusion that it gestae may res rule be preci- defined with any place had best be denied whatever in sion.” legal terminology; it anything means Although vagaries in the use of the if unwillingness all, but an to think at gestae” term frequently “res have been put what it covers cannot be in less criticized, as in United States v. Matot intelligible terms. (1944, Vt) CA2 146 F.2d there seems meaning be little indication Matot, its United States v. 146 F.2d future, (2nd will be in Cir.1944) added). clarified no (emphasis doubt because of the academic character of the Imwinkelried, Edward J. Paul C. Giannel- problem, weight and also because of the li, Gilligan Lederer, Francis A. & Fredric I. prior and influence of decisions. Courtroom Criminal Evidence § at 234 n. 38. As the Id. footnote further gestae states: “Res is such a recognizes, vagueness this imprecision vague expression that it would if be better in the term has caused its removal from attorneys neither nor courts used the ex- modern pression.” rules of evidence as a recognition, definitional Consistent in this terms, evidentiary term. In quoting rule has the Maine court after Wig- from 6 more, (Chadbourn been stated: Evidence 1767 at 255 § 1976) in Hafford, rev. 410 A.2d gestae res has been defined as those (Me.1980),recognized: 220-21 circumstances are undesigned which peculiar litigated Although many incidents of a act and pre-Rules of our cases which are admissible when gestae illustrative of have terms discussed the “res * * * separat- such act. The incidents exception,” although Rule 803(2) ed lapse from the act itself of time rule of was in- [Maine’s evidence] appreciable. However, more they codify or less tended to the decisional law as * * * cases, developed must stand immediate causal relation in that line of admissible, They though to the act. are spe- drafters of our Rules of Evidences using ges- patently term It is obvious that an res cifically avoided phrase activity from expunge after the fact criminal cannot be fit in order tae * * * descriptions. Kump, of evidence. Con- our Maine law into these State v. Wyo. use of that label bench tinued and mis- to confuse quoted Chicago City Ry.

bar would serve Co. Uhter, (1904): lead. 212 Ill. 72 N.E. “ ‘That occurs before or after the act analysis in this case The real issue for part gestae, not a the res is done is theory of defense and the accord with the although separation interval testimony the defendant is how does ” case, very Kump In the brief.’ bad fall into inclusion accessory after the fact attitude toward the victim advance gestae? The softness exclusion of res or homicide, repeated prior as from state- and its indefi- conceptional definition ments, contemporaneous. “They was not recognized application, niteness did not illustrate that act of homicide. above, generally caused abandonment of acts, transactions, sepa- entirely were speci- use in criminal law as a the term for erroneously rate and distinct and were ad- ficity determinant. The term means what- Kump, 301 P.2d at mitted evidence.” ever, nothing really determin- perhaps principle per- I still find the same Judge emphatically cor- able. Hand was abjure usage of a suasive which serves to Matot, rect in 146 F.2d at 198. dissection temporal principle gestae materiality res technically, gestae Res as converted relationship espoused here. is abso- Causal done,” English, “things means Latin to lutely required temporal has and the status Collegiate Dictionary Webster’s Ninth New *25 specific factually deter- connection (1986), variably 1003 is used to describe but relationship. mined causal that form the environment of a the facts of the transac- litigated issue to the whole If the status of involvement is that of an investigation. Law Dic- tion under Black’s definition, accessory the fact after tionary, supra, at 1173. also See Case separate conduct is and distinct. Other 579, N.W.2d 670 Vearrindy, 339 Mich. 64 wise, principal the conduct was either as a Inc., (1954) Bros., Knapik v. Edison aiding abetting responsi or in with the (Tex.Civ.App.1958). 313 S.W.2d 335 See bility principal. Wyo.Stat. as a 6-1-201 § Comment, Kathryn King, Annette The Res (1988) accessory is defined as before the in the Gestae Doctrine: Manifestations Jewell, looking fact.9 757. In S.E.2d Law Alabama and Its Role Common required relationship causal between Evidence, 42 Rules Under the Federal felony, are not in a homicide and a we Ala.L.Rev. volved in with the consideration description cover-up in of a homicide to conceal commis Perhaps the most rational felony. terms when considered for sion of a That character of crime understandable evidentiary admissibility purposes is that illustrated v. Director Div. Conner Corrections, Iowa, part gestae, within the res a statement is Adult State (8th Cir.), denied, the trans- F.2d 1384 cert. 493 U.S. of the transaction and about (1989); Although gestae res is not now 110 S.Ct. 107 L.Ed.2d 350 action. (Iowa State, included as a term within W.R.E. Conner v. N.W.2d 1985); Conner, 241 predecessor authority of the court in and State v. N.W.2d John- cases, State, (Iowa 1976). P. 761 In the the contrib Wyo. son v. having sprung utory relationship recognized in out as homicide found the delineation conjunction the direct committed in with the commis principal fact and under 1387; Conner, felony, sion of a 870 F.2d at and immediate influence of the transaction. accessory in itself. The between before the fact which constitutes the offense 9. differentiation general accessory is included in the sec- the fact and after the fact is demon- The first statute tion, significant Chapter in a section of strated not difference and the second relating punishment provided, Wyoming offenses in but also from location statutes category accessory against public the fact is administration as a in the code where liability before crimes, compared Chapter after discreet statute as homicide, aiding abetting robbery in the and to surmised that he was about to be Conner, robbery, rape conceal the note, invited to his own assassination. The 447; murder text, N.W.2d committed gestae, was not admissible as res felony kill- perpetration of the so that the though, fact, even apparently accurate ing part the felony, was a material Con- about the eventual result of his invitation ner, 362 N.W.2d 449. nighttime to a visit to the home of his about-to-be-divorced and soon-to-be-wid- majority principle This turns the il- now owed wife. upside lustrated the Conner down cases restating felony a later committed to Pennsylvania recognized gestae relationship have a res with the Lark, Com. v. 518 Pa. 543 A.2d 491 original completed. homicide earlier With- State, as defined in Scadden v. of defendant’s case and testi- (Wyo.1987), P.2d 1036 gestae res mony, part where he had no in commission complete sometimes accorded story ra all, subsequent of the homicide at ac- by proving tionale its immediate context of cessory simply after the fact does not cre- happening place near the and time. See connexity required ate the structure or the Williams, 454 So.2d felony (La.App.1984) Haarala, (quoting State v. (La.1981)), 398 So.2d “‘close support felony for the basic * * connexity in time and location *.’” principle results from the transference of The Oklahoma court likewise Sevier felony that mens rea from the to the result- (Okl.Cr.1960), ing ap- homicide and the thesis cannot be recognized: “Though gestae’ the term ‘res plied felony to a circumstance where a is almost pre indefinable there are certain preplanning committed without after the requisites necessary identifying terms, testimo killing completed. simplistic ny part gestae.” of the res The rela inquiry is whether the homicide result- tionship felony between the and the homi ed from a commission of the and not precipitated cide which it similarly rec whether a occurred after the homi- ognized in completed. The definition and discussion in Wyoming cide was stat- *26 ute, itself, State, (1983), in would seem to Smith v. 447 So.2d 1327 be self-defined (Ala.1984). aff'd, in clear terms: 447 So.2d 1334 In State * * * 920, Sherry, v. 233 Kan. (a) perpetration in the Whoever (1983), principal the occurrence an in of, perpetrate, attempt any or to sexual drug partici tended sale which the about assault, arson, robbery, burglary, escape, pant’s ges- comments constituted the res resisting kidnapping, any arrest or kills tae. being human is of murder degree. recognition temporal The of the relation- (1991

Wyo.Stat. Supp.). 6-2-101 ship is demonstrated in the 1923 Illinois § 611, Jarvis, People case of v. 306 Ill. 138 upon This statute cannot be overlaid the (1923), 102 N.E. where later events which accessory after the fact statute: * * * may have constituted further criminal con- (a) hinder, delay with intent to duct which had no causal connection with detection, prevent discovery, ap- or the shooting the initial of the deceased were detention, prehension, prosecution, con- part gestae. not of the admissible as res punishment viction or of another for the inquiry causal The entire is directed to the crime, commission of a he renders assist- relationship between the subordinate event person. ance to the connexity and the offense to which the is Wyo.Stat. 6-5-202. The actual test is § being attached. The test not the closeness perpetration felony. in of homicide the acts to the of time of such declarations or Cir.1985), (8th Wyrick, Moore v. 766 F.2d 1253 charged, act but their causal relation there- denied, 1032, t. 475 U.S. 106 S.Ct. cer 1242, with. Id. 138 N.E. at 103. (1986). Spi 89 L.Ed.2d 350 See also 267, gestae applicabil- connexity 114 Ark. or res or vey v. 169 S.W. 949 (1914) note, pre- felony to relate the ity where the victim’s written test for murder resulting recognized quote from 2 E. felony to homicide Charles

underlying the Torcía, 149, “time, of dis- Wharton’s Criminal Law frequently stated in terms is § * * 1978): (14th tance, relationship *.” ed. and the causal Hearron, State v. 228 Kan. felony- not of purpose “It is the the authorship rule to foist of felon; distance, upon the is purpose the causal relation- homicide Time, felony merely killing underlying to clothe the felon’s act of ship the between to be considered with malice.” killing the are factors killing part is a determining whether the quoted Com- Montana court then therefore, and, to felony subject Redline, monwealth Pa. the un- felony-murder rule. Whether the (1958): A.2d derlying felony had been abandoned adjudging felony-murder, “In it is to be killing to so as to completed prior the thing remembered at all times that the felony- of from the ambit remove it imputed killing is to a felon for a ordinarily question of is murder rule and malice felony to incidental his decide. fact for the to killing. the act The mere coincidence of Rider, Id. also 625 P.2d 425. It See felony enough of homicide and connection, time, place causal stated satisfy felony- requirements Corneau, State v. 109 N.M. necessary murder doctrine. ‘It is ... (1989), gestae res addressing causing that the death was show conduct felony stated as felony and further design to com- done furtherance of regard escape progress continued felony. mit the Death must a conse- Wayne, 169 W.Va. time, State merely quence of ... and not Lee, also State v. See (Em- S.E.2d 480 (Citing authority.)” coincidence.’ Wash.App. phasis original.) con causal connection was where the Weinberger, applica- 671 P.2d at 569. In sidered: rule, tion of the the Montana court found has re- connection been This causal proof, plan design inadequacy gestae res to as within the ferred insufficiency of evidence establish commenting on the intended crime. underlying chargeable to to be felony-mur- background of historical application incident homicide. The Suit, doctrine, the der Weinberger rule causal relation N.J.Super. A.2d applies clearly of defense (1974), noted: participation that his occurred premised and is “The doctrine arose If that as an after fact. *27 intent, upon transferred of true, have of was he could not been is, at- perpetrating that one or felony murder. inherently an tempting perpetrate to felony principal as the occurrence The felony possesses malevo- dangerous by the recognized again Kansas calls of mind which law lent state Peterson, 821, in State Kan. malice.... 387, (1985): P.2d transfers into “It is this intent which gestae concept than Res is a broader necessary of malice that element hearsay It ac- exception to the rule. charge first-degree mur- of sustain tually admissibility deals of evi- person imputed who der and before, acts or dur- dence of declarations Thus, during felony. when kills principal of ing happenings or after in of a killing occurs the commission or Those acts done declarations event. in the de- robbery, it is murder before, happen- during or after the made gree, in- though even death was not may be principal occurrence ing of tended.” gestae part res where of the admitted closely or are so in State v. Wein those acts declarations The Montana court berger, 567, principal with the occurrence connected 206 Mont. reality part felony of the occur- not as to form create a murder basis for convic- Com., rence. tion. 12 Va.App. Davis v. (1991) directly contrary S.E.2d 377 frequently A case refer- foundational factual status where the defendant was Diebold, 152 Wash.

enced is State v. trying escape pur- from motor vehicular P. where it was 395-96 suit since he awas habitual offender. The stated: illegal driving attempt escape may As to when a homicide be said to resulting person death of an innocent add- course of the have been committed Likewise, up felony ed the act crime, perpetration of another the rule is driving of when forbidden to do inso order laid down 13 R.C.L. as follows: felony avoid detection accrued generally “It be stated that a homi- liability police where the automobile chase perpetration cide in the is committed burglary followed of a car State in crime, accused, another when the intend- J.R., N.J.Super. Interest ing to commit some crime other than the A.2d 1279 homicide, engaged performance in the part requires for its full pear the intended relation between the killing can be said to have occurred as a phraseology, death must have been the thereof, in furtherance of an to commit it. probable consequence of the unlawful act so crime committed or ^{[*] [*]} any engaged, ^[*] 1) one of the acts which such intent there was such actual perpetration and within the res killing crime, In the usual terse results. execution, and, attempted, attempt killing of the consequence It must or purpose gestae crime, and the that the while legal legal ap- the intent not the intent to commit the though from the thought ny. Although ous intent murder. The committed in the incide or follow the can application Asportation Lassen, be utilized to find the res principle does not constitute body to commit the 679 S.W.2d 363 factually to a gravamen addressed in the of one killed as an after- required. Differentiating perpetration, robbery killing may precede, continuing found, robbery underlying felony, of the offense is homicide (Mo.App.1984). is that killing. a capital initial feloni- and still be transaction gestae case, larceny State felo- co- al- authorities, proximate cause from some Diebold, appellant was a taxi driver “ ‘Akilling rule is also stated: is committed illegally who borrowed a vehicle and there- felony-murder purview ... within the after, upon becoming extremely intoxicat- in the statute “when there is no break ed, into the decedent. ran vehicle Felo- leading the initial chain of events ny origi- asserted on the murder was based death, causing to the act so that the vehicle, taking nal unlawful even part homicide is linked to or of the series though process defendant was forming incidents one continual transac- vehicle return when the death resulted. ’ ” Covington, tion.” N.C. Washington court determined fel- (1976)(quoting 639-40 226 S.E.2d ony applied murder could not from the Thompson, 280 N.C. State v. taking nothing in initial vehicle where (1972)). S.E.2d flight pursuit nature of was involved. *28 See, however, Leech, Wash.App. State v. if intent to com- The issue is factual (1989), firefight- 775 P.2d 463 where a felony initiating of the mit the as the event fighting er died in the defendant’s arson- Wooten, 245 transaction is denied. S.E.2d started fire. impeach if Obviously, the facts Com., Va.App. testimony, presentation of the King

Likewise in v. denial resulting jury (1988),following approval of the 368 S.E.2d 704 the earlier issue and Com., appropriately results. The court case of v. Va. 284 verdict Wooden (1981), proof intent to recognized S.E.2d 811 the death the co-felon Wooten the homicide was re- airplane crash while the duo steal at the time of an were first mur- transporting marijuana quired could for conviction of involved trary clearly uniformly almost con- felony murder doctrine. Id. is and der under the is within the the homicide trary at 706. When to the established state of the law. an gestae the initial crime and is res unimportant relationship The instruction thereof, it is committed in the emanation given under these which was circumstances statutory that crime in the perpetration of pre- reversible error. It should constitute Milentz, 547 v. S.W.2d sense. State sumptively significantly misled the Adams, (Mo.App.1977); 339 Mo. State v. relationship jury about between similarly It was 98 S.W.2d charged crime and controverted conduct. “It is sufficient that stated California: consigned instruction is best That felony be related to the homicide logical- file again to used” and a “never probable as a natural and have resulted ly in re- given valid alternative should be ** People *.” v. consequence thereof circumstance, placement. In a Cloman 348, 358, Cal.App.3d 169 Cal. Taylor, 112 nonsense; usage is instruction harmless added). (1980) (emphasis Rptr. this, it in a case like it where matters Chavez, 37 Cal.2d People also See inaccuracy conceptual- becomes factual 234 P.2d 632 legal presumption. ized into The of the rela- appropriate resolution tionship is under the required fact sensitive VI. presented which means circumstances may sequence significant is but of events controlling temporal SINGLE OR SEPARATE VERDICTS FOR

not be on a basis proper alone. The examination whether ENTRY OF THE JURY DETERMI- a result commis- a homicide occurred as OF THE DIF- NATION GUILT FOR felony in order that transfer- sion OF FERENTIATED CHARACTER red the commission the felo- intent from MURDER, PRE- FIRST DEGREE required ny mens rea where creates the MEDITATED KILLING FELONY OR de- premeditation should exist to otherwise MURDER The fine a murder offense. appeal, patchwork For this verdict specificity in juxtaposition and the lack of special in unanimous decision and not majority decision is language used However, presented. the is struction plain wrong. dogma just Cloman essentially the same.10 This is sues are supposed graduated to the rule of the complex aspect and difficult most factually inappro- inapplicable Price is case. are here trilogy issues in this We application to priate for this case. further presented unitary verdict unanimous singular logical fallacy resulted from by applied un determination char- instruction decidendi which has created court’s use facts to litigative frequently acterizations rather than limited review with In philoso- logical reason to a conclusion. jus differentiated results inconclusive least, presumption phy, at a Sandstrom non- possible used to affirm tifications was created. Schad, 111 jury decisions. unanimous See Lowe, 2491, compared People S.Ct. temporal relation- apparent It is (Colo. 1983) v. Al and State ship meaningless, that the is not homicide ford, 407 S.E.2d 519 329 N.C. required of the intended to be result O’Neill, P.2d by People v. followed commission of (Colo.1990); Freeman, 668 P.2d People v. after the create fact does not Boots, (Colo.1983); 308 Or. responsibility for an earlier homi- and, (1989); particular, cide that have occurred without the Wilbur, 421 Mullaney v. U.S. participation or assistance defen- and In re Win- conception to the con- L.Ed.2d 508 majority’s dant. The *29 Lauer, Comment, Trubitt, Verdicts, (1983); Jury Agree- Hayden Barbara L. J. Patchwork Dif- Cases, Verdicts, Jury American Theo- in and the General Verdict Criminal ment ferent-Jurors ry: Juror Whether Verdicts Are Invalidated & L.Rev. 207 XIX Land Water Issues, Disagreement on Okla.L.Rev. 473 358, ship, tary 90 S.Ct. verdict U.S. dialectic use was then followed (1970).11 L.Ed.2d 368 in where presented Price the real conflict participation was of the in defendant in The issue is not new recent date to felony justify felony compo- Wyoming presented in in since first dictum nent of the first murder conviction. Cloman, recently and more Price, C.J., Urbigkit, dissent- Price, applied Cloman, in In 807 P.2d 909. ing. co-participant brutally defendant and good murdered three Samaritan benefac- Wyoming The historical standard for tors, robbed the bodies and took the vehicle unanimity early started in case law and Chicago where ap- the malefactors were expressly by quotation stated from an prehended. premeditated Neither homicide even earlier Missouri case: felony nor murder involvement was real- “The defendant was entitled to a unan- istically question. originally what imous verdict jury upon of the the issues case, penalty a death that result was of his particular innocence of the only unconstitutionality altered offense for which he was on trial. Un- Wyoming Kennedy statute. der general this instruction and the ver- (Wyo.1977); Gregg v. Geor- returned, dict jurors may some of the gia, U.S. 96 S.Ct. 49 L.Ed.2d testimony have believed the in support of (1976); Georgia, Furman v. 408 U.S. charge gaming as to one of the de- 92 S.Ct. 33 L.Ed.2d 346 vices and testimony disbelieved the as to The sum and substance of the Cloman other, remaining while the members opinion evidentiary finding was the for the jury may have found and believed jury multiple decision that homicides conversely.” perpetration occurred in robbery Tobin, 355, 371, Wyo. State v. 226 P. premeditated were and willful malice kill- (1924) (quoting Washing- ings. disjunctive unitary A verdict had ton, 401, 409, 242 Mo. 146 S.W. applied been used and this court the fact- (1912)). might It be conceded now that finding substitutional evidence rule to af- justice permanently has been truncated Unfortunately, opinion firm. hypothe- adaptation non-unanimous verdict in consti- jury sized an unknown about what Wyoming, except tutional law in the United found, could have not what the evidence Supreme States Court has been called to would have sustained. The substantiated recently subject more examine the evidence rule to be hereafter discussed Schad, 111 S.Ct. where that court justified possible detail for the court non- decided, plurality, on a four one concur- composite unanimous decision and a vote, rence and a four dissent whether the verdict result. Cloman was not remarka- unitary produced identical verdict issue evidentiary clarity ble in of murder misappropriation process. constitutional including where both murder and Conversely, legal the national trend all premeditated Overtly, problems opposite clearly state courts is di- adjudication would been avoided for have recapture una- rection where now aimed to in Cloman if a standard had been estab- nimity a function of as decisions usage lished for of the bilateral verdict for undoubtedly unnecessary appeals to avoid premeditated ap- murder so the and divisive doubt as to what pellate required court does not become really determined. conceptional act as the fact finder. Clo- came to the States Su- problem man also created the alternative Schad United penalty temporal relationship irrelevancy, again preme Court from the death affir- unnecessary Supreme dictum. The uni- mation of the Arizona Court Cloman gen- Supreme 11. The even more recent United States under the Fifth Amendment in review of a — States, "multi-object conspiracy" Court case of v. United U.S. convic- eral verdict on Griffin -, L.Ed.2d 371 Consequently, issue is not re- tion. the Schad unanimity avoids issues under the Sixth Amend- viewed. process questions ment and considers due *30 518 Schad, 411, following preme plurality 788 Court decision v. 163 Ariz. P.2d

State — -, granted, cert. (1989), appeal. component, U.S. In further first 1162 243, (1990). See 112 202 L.Ed.2d concurrence is sim- special 111 S.Ct. of Justice Scalia Schad, v. Ariz. 633 129 P.2d also State plistic Unfortunately, and exact. it tends denied, cert. (1981), 455 U.S. 102 366 put in issue an entire universe of differ- to (1982) State 71 L.Ed.2d 693 unitary offense verdict cases entiated Schad, v. Ariz. murder/premeditated not felony which are (1984). a hitchhiker kill Schad addressed degree in nature. murder/first murder Schad, In host. ing of his automobile ride See, example, for case on the the basic quick consideration gave Arizona court Gipson, 553 F.2d United States v. subject, comment, unitary verdict issue to Cir.1977), (5th conceptu- which also was citations, Arizona cases of including plurality alized in statement: Encinas, 493, 647 v. 132 Ariz. P.2d State Gipson persuaded are not that the We Axley, v. State Ariz. approach really question, answers (1982), quoted and then 646 P.2d Although however. the classification Encinas: conceptual into alternatives “distinct Encinas, 132 Ariz. v. State judg- is a groupings” way express to a (1982), we stated: P.2d permissible al- ment about limits of Arizona, degree murder “In first ternatives, too indeter- notion is regardless whether only one crime it provide guidance minate to concrete premeditated murder or as a occurs specificity ques- courts faced with verdict Axley, murder. See State tions. Al- 132 Ariz. Schad, 111 S.Ct. at 2498.12 though a defendant is entitled unanimous verdict on whether the special Scalia concurrence of Justice commit- charged act has been criminal uni- justification a historical for the defined Counterman, Ariz.App. ted, State tary verdict for offenses differentiated (1968), the defendant specific crimes, felony murder and of these unanimous verdict is not entitled to a only the premeditated murder. He finds precise manner in which act on single degree offense first murder which committed.” alternatively by the en- be committed 496, 647 Id. at at 627. felony murder tirely different activities Smith, killing. premeditated 160 or To differentiate Our decision degree did first permissible Ariz. P.2d 811 treatment of offense, it change single rule that was substantive murder as whether entirely form of verdict for activi- not error have one different offense reached though offenses, both murder even he exam- ties from “umbrella” felony murder were premeditation justification pro- historical to extract ined Smith jury. being process. submitted does not due Justice Scalia vided however, does, urge that alter- strongly unanimity, except requirements address submitted to a nate forms verdict be says: rejection requirement, he on alterna- jury when a case is submitted observes, long plurality it has As premeditated theories of tive single general been the rule that when Id. P.2d at 811. ways, crime can be committed various Schad, 788 P.2d at 1168. upon need not the mode jurors agree ** * That rule is not litigative difficult to histo- commission. It is relate the constitutional, indispens- probably it is ry unitary for differentiated verdict system requires a unani- in Arizona able offense first Su- mous verdict to convict. the treatment the United States Comment, Unanimity Jury 12. See Right Harv.L.Rev. Gipson, Material Fact Issues: United States v. *31 epitome

Id. 2506. This becomes the participating robbery, in a only six pragmatic constitutionalism. For Schad believed he intended to kill. Perhaps and to define federal constitutional bases equivalence moral is a necessary condi as the decisive history route for to create allowing tion for stand, such a verdict to process, due Justice Scalia said: surely plurality but pretend does not (We that it is precisely per It is would not practices historical that sufficient. mit, example, for an charging what is “due.” indictment “Fundamental define that the analysis may fairness” defendant appropriately be assaulted either X on Tuesday applied departures or Y on Wednesday, despite from traditional American “moral conceptions process; equivalence” acts.) due of those two Thus, judges but when the plurality approves test their individual no- the Arizona practice tions of against “fairness” in the present American case because it deep tradition that is and broad and con- meets one of the conditions for constitu tinuing, it not validity. tradition is on tional say It does not what the trial, judges. but the are, other conditions or why the Arizona practice respect, meets them.

And that is the case With I do Submitting here. not think killing in the course delivers the robbery “critical exami * * * nation,” premeditated killing which the plurality prom to the under a single charge is ises as a compos- not some novel substitute for upon reliance ite that can historical subjected practice. fact, indignity I think its analysis “fundamental ultimately upon fairness” review. It relies nothing (whence was the norm but country practice when this historical was does it founded, was the norm when the Four- derive even equivalence” the “moral re teenth Amendment adopted quirement?) acknowledge —but today. remains the norm Unless reality we would acknowledge be to a ration are here to invent a Constitution rather al upon power, limitation our which bob- one, than impossible enforce it is that a tailed “critical obviously examination” practice as old as the common law and not. requirement of process] “Th[e] [due still in existence in the majority vast is met if according the trial is had provide States does not process judicial settled proceedings. course of which is “due.” process Due process of law is due accord land.”[13] that,

If I ing did not I might believe well the law of the be with the dissenters in this case. Id. at (emphasis original quot- Id. at (emphasis original). ing Sauvinet, Walker v. 2 Otto 92 U.S. 90, 93, (1875)). 23 L.Ed. 678

His further discussion is informative: Any analysis of Certainly Schad fails to make plurality provides no satis much sense factory explanation unless first attention to the why (apart position Justice Scalia understands his rec- history) permis endorsement of it is ognition of the killing sible to combine in one obvious. We deal with two count totally the course different societal robbery killing by pre offenses necessar- ily only point having meditation. The resulting it makes is common homi- depravity that the cide. required process of mind Due is the for concern which he morally equiv two be considered finds to be unitary served verdict— * * * alent. petitioner But the justifi- here does non-unanimous status historical complain equiva about lack of Strangely enough moral cation of continued use. that, complains lence: he Wyoming, far as we for perspective that historical know, only jurors six believed he was adjudicated total void in case law from Categorical general ly, community adaptation applied reliance on some histori- instant perspective provides dangers justice by lynching significantly great- cal analysis intrinsic when reached a application of intendment and of a con- er number of "final decisions.” Since it did then, twenty legal stitution is considered. necessarily Less than occur ly justify lynching it will not constitutional- history society’s executions have occurred in the now as an answer to territory Wyoming. and the state of Converse- disturbance about individuals’ misconduct. the defen- committed until 1978 when Cloman of statehood

date Conceptually, of de- by this court. dant. was authored *32 defendant, latter is what fense for this the plurality then the decision To address actually Bouwkamp argues and testified Schad, dis- that after first it is found occurred. its whole universe of regarding Gipson and determinations, au- the and state federal opinion writing, Justice In his Schad dissent, thor states: White, appro- the four Justice with course, not, suggest jury that nei- priately recognized that the decision of doWe special increased verdict nor the concur- requiring plurality ther the instructions desirable, and in fact process man- specificity are rence accommodated the due has itself Supreme of Arizona Winship, Court In re 397 U.S. dates of separate verdict forms recognized provided that a fundamental S.Ct. which jury to a on in cases submitted are useful criminal law. tenant for this nation’s premeditated and theories of actuality alternative declining hide the either Smith, felony murder. State practice equivalency, or moral historical 507, 513, 774 P.2d Ariz. Justice White stated: only did hold Constitution We generally give great It is true that we practice such a facts not command defining deference to the States of this case. see, I crimes. fail to how- elements of Schad, ever, plu- at 2504. how that truism advances the rality’s no failure to defer case. There is re- right is but not Having said what recognizing premedi- the obvious: itself to the quired, plurality directs felony murder and murder are al- tated inquiry conceptualization similar to by ternative courses of conduct which dancing angels on the about the number first-degree may murder be the crime of addressing equiva- pin by moral head of a established. lency: agree Schad, everyone would Whether or not 111 S.Ct. at 2508. within conduct equivalency is that fense and leaves ment for Id. at 2503-04. immediately applied. forms nimity individual ed characters of criminal “useful ty clear that such single offense. means out the death ably moral prosecutors have declined to bars for these two problem finding be the mental approach" involved in the course of equivalent argument case, found, satisfy treating provided by death constituting a criminal of- with equivalence could reason- an ad hoc rule to be state that that this it unanimously find factually them ignores mental element of a premeditation, Obviously, concept of conduct. separate enough robbery is the as alternative in a moral the result of differentiat- precipitates adopt the require- dispari- verdict In the courts moral una- it rule is established: has murder and cape and categories of conduct which constitute first statute here at zona statute thus sets forth petitioner of Within that conviction while these two murder elements in ther of do so He Unlike Here, appropriately ^[******] murder by divergent two two * premeditated felony murder. for different prosecution felony murder/robbery. Yet common * concept, issue, first-degree murder components premeditated * (premeditated, first-degree murder). recognized that the Ari- paths routes Wyo.Stat. except paths, premeditated Justice set murder, both — possessing no three murder, out to convict the fact of a White during es- § lead to Wyoming 6-2-101, general they then ei- require that the defen- {Cloman), {Price), murder does not or even on both or one killing even intend to commit the neither, killing was dant where the occasion kill, long the defendant involved precipitative so as else and a done someone der, underlying felony. except other the fact killing, On has been hand, felony premedi- majority murder —but not jury, found let alone requires proof that tated unanimously by found as re- murder — requisite had the intent defendant quired by Arizona law. A defendant underlying commit and did commit the charged first-degree felony. 139 Ariz. McLoughlin, State v. least to a entitled something pe- verdict— Pre- get titioner did not long this ease as murder, however, meditated demands possibility exists that no more than to kill premeditation, intent as well as jurors any six voted one element *33 prove of to required neither which is murder, first-degree except the fact of a Thus, contrary to the killing. * * * assertion, plurality’s the difference (footnote omitted). Id. at 2508-09 paths the merely between two is not one Similarly recognized by well Justice of a substitution of one rea for mens White’s is that problem dissent the with the Rather, separate another. each contains statute elements of conduct of mind and state single heading, under a criminalizes sev- which cannot be mixed and matched at patterns eral alternative of conduct. It particularly equate will. to fanciful While a is free to construct a stat- an intent to do no more than rob with a way, ute in it this violates process due premeditated intent to murder. for a State to invoke more than one Consequently, simply a verdict that alternative, statutory each with different pronounces a of “guilty defendant first- elements, specified requiring without provides murder” no clues as to jury that indicate on which of the jury agrees whether the that three it has alternatives based the defendant’s premeditated elements of or the murder guilt. two elements of murder have been * * * Allowing jury a return proven beyond a In- reasonable doubt. generic following prosecution verdict stead, entirely it is possible half of that on separate specified two theories with jury believed the defendant elements has the same jury effect as a premeditated of guilty “guilty verdict of of crime” based on felony murder/robbery, while alternative theories of or embezzlement exactly put half believed To reverse. driving. reckless way, plurality the matter another Id. at 2509-10.14 knowing affirms this conviction without single that even a either I totally justification element of fail to find rational ways proving first-degree for mur- plurality special Schad concur- contemporaneous anomaly upon Plainly 14. A be extract- can line. bottom there is no comparing majority, general jury ed requirement agree concurrence and that the reach McKoy from preliminary dissent olina, Schad with Car- North ment on the factual issues which 494 U.S. 110 S.Ct. 108 L.Ed.2d verdict.5 underlie the 5- (1990), significant where exception Justice Scalia in dissent ar- one There is to this gues jury mitigating unanimity principle, support for cir- each does not but it the dissent’s penalty position. prosecutions, cumstance in a death Justice case and federal criminal In Blackmun, in text and concur- required, footnote in his where a unanimous verdict ring opinion, analogy: stated general agreement for Appeals are in Courts of conclusory "[u]nanimity means suggests ... more than a dissent the rule an agreement Maryland, defendant has violated the in Mills U.S. [v. nounced (1988) question; requirement of statute in there is a 108 S.Ct. 100 L.Ed.2d is an ] aberration, quirk Eighth agreement principal of our substantial factual Amendment fact, however, underlying jurisprudence. specified it elements offense.” is the Unit Ferris, (CA9 unanimity requirement Carolina ed North which States v. 719 F.2d 1983). represents extraordinary departure way (footnote omitted). juries customarily operate. in which Id. 110 1236-37 Cit- S.Ct. at cases, typically upon ing are Juries called render five Justice Blackmun other contin- stating: unanimous verdicts on the ultimate issues of ued in the footnote given require case. But it is differ understood that This rule does not that each bit entirely jurors persuaded by unanimously ent different evidence be credited or evidence, discarded, pieces they agree require even when it does but unanimous law. No authorities are need- deny a unanimous verdict common

rence proposition.” ed to this sustain Wyoming under the Constitu- requirement statutes, procedure of criminal tion, rules Fortunately, to address the kind of dilem- Tobin, 226 P. case law. even historical Schad, ma that has created there been 681; Springs, Rock Nat. Bank First another recent case is available for review Foster, Wyo. 61 P. 466 Wyo. v. justifies special evaluation. In the which and deci- certain bland It seems Boots, prosecution in homicide can evaluate logic that however we Murray, sive 308 Or. accord State law for the to now precedent trial instruct- historical of histori- equivalency instead ed the in a fashion which accords with reach moral plurality unitary fact. review of the verdict experience just not the real cal issue in dan- Schad: long recognized the American law has non-unanimous it is potentially regard charge, ger “With jurors im- alternatively necessary agree all on the on an or verdict verdict Aggravated manner in Murder People Stromberg proper basis. *34 is, jurors That was committed. some 283 51 S.Ct. California, U.S. State of during find it may that was committed philo- The 75 L.Ed. 1117 of the course of and in furtherance Rob- underpinnings American law sophical of may bery Degree, in the First and others by in provided Reed Andres were Justice it was committed to conceal a crime find States, 68 S.Ct. U.S. 333 United perpetrator. Any or of its combination (1948), he 1055 where 92 L.Ed. jurors agreeing or the twelve that one “Unanimity clearly succinctly stated: other or both occurs is sufficient to es- Sixth required where the in verdicts this tablish offense.” apply.” and Seventh Amendments Cf. Boots, 780 P.2d at 727. Oregon, 406 92 S.Ct. Apodaca v. U.S. (1972),non-unanimity 1628, 32 L.Ed.2d 184 comparison interesting provided by An criminal cases. in murder non-first in which di- Oregon court the decision in Reed provided the Justice The footnote rectly what oc- relates to effect of Andres, 333 U.S. at n. composition of in case. In curred to n. an Boots, at 884 13 contributed S.Ct. court was based trial instruction recognition of thoughtful Oregon earlier precedent even on the of the earlier case Fisher, Hazelett, Or.App. 44, U.S. American Pub. Co. of State 618, 619, (1897): frequently found L.Ed. 1079 which with- S.Ct. string jurisdic- in unanimity peculiar citations used other "Now was one system justify unitary tions verdict for of trial to and essential features judges for different defen- agreement of the defendant's vised different as to the nature violation, Clause nor simply the that a violation dants. Neither Due Process not fact any language any vests other constitutional has occurred. judge power. with Our Constitution was such Id. at n. 5. Furthermore, away by equiv- considering written in the sands to be washed the moral in judges alency wave of new blown in each historical tradition each and characterized brings Schad, po- political new provided would be well to successive wind it standard power. temporary said dissent litical administrations into Rather, Justice Black look back at what States, 398, 426, per- our Constitution was fashioned to U.S. in Turner v. United clear, marking 642, 657, justice by response petuate liberty and L.Ed.2d lasting explicit, boundaries au- constitutional opinion Justice White had to no than the for trials. One need look language further thored: sacred document itself to be Bill of of that The Framers our Constitution and of wise, charged with crime Rights pragmatic, and too assured that defendants too too were process safeguard of law—that tyranny attempt to to be accorded due to are is, familiar with broad, they liberty are to be tried as the Constitution personal flexible words with trial,” passed pursuant prescribe it de- to phrases the laws and cency," like "fair "fundamental arbitrary procedures particu- stretchy, not under and "reasonableness.” Such may majority sitting judges see judges fit left con- lar terms would have rubberlike stitutionally a mor- try charged [or as assure people "decent[ ]” label “fair” free to equivalency]. impro- will-o'-the-wisp al crime standards under Gipson the first murder conviction where The opinion comes closer to the premeditation present are not do case than cases like Holland separately charged or determined ver- defining under statutes who besides the dict.15 primary principal. actor is a Nothing ORS 163.095 or in requires ORS 136.450 Oregon The court said: supports that, an instruction Gip- challenged explicitly The instruction tells notes, son creates serious constitutional

jurors aggravated return a verdict doubts. if them murder even some of doubt that What participant the defendant was a led the Hazelett astray robbery but believe that he was the simple meant error of counting and it adding conceal and others believe that jurors defen- those who are convinced was a dant robber not that any but conceal- statutory one distinct element rather ing played the crime killing. a role than focusing, element, for each on the jurors implications go

The who further. anoth- convinced of that case, element, er there several charges though they could be separately might own, under different subsections ORS 163.- convict on equally their nonunani- robbery mous, 095 in addition to a and an intent view the decisive facts. Under conceal, instance, that the defen- the proper possible focus—the dissent paid murder, dant was commit jurors any some one factual find- officer, victim police was a and that ing principle decision is evident. —the death resulted from defendant’s in- the jury instruction that need not tent to maim the victim. instruction unanimously agree charge either on the *35 jurors tell would return verdict of [premeditated under or on the murder] aggravated murder, although some do charge under to conceal identi- [homicide that present believe the officer was ty] was error. capacity in an official and others do not Boots, 780 P.2d at 731. paid, believe that defendant or in- adequately To Wyoming address law re- maim, tended or that there was a garding (formerly W.R.Cr.P. 31 W.R.Cr.P. robbery or an conceal it. In intent 32), provides requirement of una- short, the instruction relieves jury nimity, Wyoming and attendant constitu- seriously confronting question from Const, rights Wyo. 1, tional 9 under art. § they agree any whether that factual re- present recognition for of the national quirement aggravated murder has Schad, constitution as in defined there is proved beyond doubt, been a reasonable requirement to the separate related two long juror willing so as each pick clearly but character of intertwined cases. one or another. Many appeal by came forward denied Boots, 780 P.2d at 727-28. special others, instruction and like this recognizing differentiating a Wis case, upon unitary rest verdict form case, consin Holland v. 91 Wis.2d used. 134, denied, (1979), 280 N.W.2d 288 cert. 931, 100 1320, usage The lead case in citation for in- 445 63 U.S. L.Ed.2d 764 (see, (1980), the 553 F.2d Oregon quoted Gipson, also struction was 453 court however, then Gip- considered the substance the recent case of United States (5th Cir.1991)) son rule: Holley, v. 942 F.2d 916 15. The ing analysis 547 A.2d which, Some are decisions 7- those states but issue.7 when the state’s comment E.g., Oregon State v. applicable course, may in Supreme app. Boots, Anderson, may prove highest den. cases: of intermediate Court 780 P.2d control court addresses the 16 made an to be erroneous Conn. Conn.App. practice 729 in the interest- courts L.Ed.2d 209 cert. den. A.2d S.W.2d 917 App. 873, State v. 1987), 433 121 Ill.Dec. rev. den. Begbie, 300 N.W.2d 742 (1988); ^[489] (Mo.Ct.App. (1989); U.S. 415 (1988); People 830, People [1024], N.W.2d 103 525 N.E.2d 1137 v. 1986). State v. Travis, v. 109 S.Ct. Ewing, lv. den. (Minn.Ct.App. Brigham, 170 102 Mich. Ill.App.3d (1988), (1982); 709 103 Tillman, verdicts was natives exist. State v. resource on the informational (Utah 1987). Sullivan, 173 N.Y. 546 by People v. initiated signif- are There 65 N.E. 989 4. appellate court assumes that self-standing rules or char- icant number jury must have been unanimous because been enunciated that have acterizations were subsumed the alternative facts non-requirement justify the cases to Jones, as v. theories well. State Conn. However, jury. unanimous decision (1984); Tyler 475 A.2d 1087 v. United cases, the totality current within States, (D.C.App.1985). 495 A.2d 1180 concept of resting on the plurality Sekad general unanimity 5. A instruction suf equivalency is indeed novel.16 moral they fices jury to instruct the must be justification historical predetermined specifically unanimous on forms whatever Scalia, although utilized Justice analysis verdict, proper except jury basis for the adaptation in relevancy found with genuine possibility where there is a phrased due Sullivan, presently confusion and conviction result Winship re unanim- process rather than In jurors concluding different explain- completely new ity, is also now committed defendant different acts. Unit charged separately ing different acts how (9th Payseno, v. 782 F.2d 832 ed States unitary justify the instruction do not either Cir.1986); v. Echeverry, United States Con- require differentiated verdict. (9th Cir.1983). F.2d 974 See also Jeffries justification argumen- cepts for asserted (W.D.Wash. F.Supp. Blodgett, preclusive determina- phraseology or tative 1991). tion are: no 6. factual details have Alternative justified to dual 1. Lack of verdict separate legal importance. Gray v. United reasonably if the affirm the conviction States, (D.C.App.1988); 544 A.2d 1255 alternatives. on both could have convicted Souhrada, 122 Mont. 204 P.2d State v. Cloman, Price, 909; (1949); Flathers, 57 S.D. State appellate fact-finding This is the (1930); Giwosky, N.W. unanimity re- substitution Wis.2d N.W.2d *36 quirement to create the on what occurred concept premeditated the The initial for crime. degree unitary first felony verdict murder are and murder 2. Premeditation Sullivan, came from In that 65 N.E. 989. the ways establish mental alternative to case, the New York court authored required for first murder state a verdict, claim, single sufficiency of the dual Wilson, 220 Kan. conviction. State v. If, to the on each claim rule. as evidence may How the crime claim, either the evidence was insufficient necessarily not be occurred need have justify question submission by jury for unanimously determined jury, the conviction must be reversed appli- state and the assessment of mental ground on which since it cannot be known responsibili- conviction See, however, of the murder cation jury its based verdict. respon- ty. jury The can assess alternative although phrased not on Sixth Amendment unanimous determination terms, non-unanimity sibilities without in discussion — pre- concept, U.S. -, any e.g., States, one malice—either v. United Griffin alternatively presumed intent or list meditative 116 L.Ed.2d 371 by felony participation. may have become differentiated between disjunctive charging; conjunctive and can 3. Premeditation however, result, any is one or all. to create aggravating be circumstance However, in court then said capital Sulli- crime of van, (quoting Murray Thus, separately and 65 N.E. does Co., 96 N.Y. alter- New York Insurance unanimously need to determine what Life judges judges in either their definition 16. The trouble with a societal behavior standard Murphy usage? can either be equivalency A Brown their symbol list like moral is who determines symptom. or a equivalent who is and what moral what “ (1884)): Am.Rep. speaking peoples; ‘It is not and for that reason no necessary jury, that a in order to find American constitution has ever assumed verdict, single should concur in a view it. define We relegated are therefore by the transaction disclosed the evidence. history to the of the common law to may justified If the upon conclusion be meaning. ascertain its The essential and interpretations either of two the evi- substantive attributes or elements of dence, impeached by the verdict cannot be are, been, trial always have showing part jury proceeded that a number, impartiality, unanimity. upon interpretation part upon one must consist of They twelve. ” other.’ Thus came to the one crime— impartial must be and indifferent be- non-unanimity sufficiency of the evidence — parties; tween the and their verdict must adaptation unitary for the verdict which be unanimous.” Lommen Gaslight was in diligently that case attacked in dis- Co., 65 Minn. 68 N.W. 33 L.R.A. sent and singularly has remained chal- * * * unquestioned, also, It is that lenged for further authentication ever adoption at the of the constitution the Although since. in is cited Sullivan right existed in Wyoming as at common Schad, apparent it is that the rule of Sulli- law; is, that in felonies and in all com- van is singularly plurali- different mon-law cases in the district court—our ty equivalency, moral Justice Scalia’s his- general court of jurisdic- common-law non-justification torical non-unanimity right tion—the impartial jury was to an and, course, rejection Justice White’s of 12 men and a unanimous verdict. generic dissent. The Sullivan rule con- * * * As right in criminal cases cept sufficiency evidence there is no room for construction. The justify, although the nature the evidence language express that it shall remain differentiated, be somewhat was the inviolate; is, person charged Cloman, rule first extracted for dictum in right, heretofore, with crime has the as Price, used in now authenticated men, to demand a 12 impartial trial majority. ease That adaptation whose verdict must be unanimous or- support has no Schad the Oregon, nor support der judgment. Colorado, and, or North Carolina cases fur- thermore, prior is not within the federal Tobin, See also 226 P. where Foster originally law in Gipson. delineated identically restated. Frankly, ap- I cannot find the Sullivan my It is conviction a basic constitu- proach long to fit within the term historical recognition tional what this court Wyoming precedent ninety-one either. For to the legislature is now forbid *37 years state, in this the constitutional re- tautology phraseology by and inserted quirement a jury of unanimous verdict in a this system successor court into our of criminal has unquestioned. case remained justice permit to ver- non-unanimous Const, By Wyo. 1, 9, analysis of art. § dict. Foster, 466-67, court in yet P. at what Any supposition premeditated mur doubt, today should be established felony der and murder are or the same jury that the unanimous verdict was consti- similar criminal offenses is absurd non tutionally established: reality. Lee, sense in this world’s 286 Cal. uniformly The courts have held also that 117; Rptr. Ortega, P.2d 1196. Funda “jury” word as used our constitu- mentally factually, felony and murder tions, modified, when not otherwise occur premedi when none of the factors of means a jury composed common law of present except tated murder are death men, shall whose verdict be unani- being. of a human The real fact and re by supreme mous. As stated recognized sulting problem by by of as Justice expression Minnesota: “The ‘trial is, Charta, jury’ Magna is White in Schad like Arizona there and as old and has meaning Wyoming obtained now here under a definite historical statute which, by English- emphasis, which is all justifies well understood for restatement: ** * However, charge. alterna- there was in- criminalizes several statute] [The of to While a State sufficient evidence as a matter law patterns of conduct. tive way, support in this the intent to assault element. free a statute is to construct uphold jury process general for a State to We cannot verdict it due violates statutory upon alterna- one of the alternate theories one when invoke more than specified jury have tive, ele- which the could relied is with different each ments, requiring jury error. without it of the alternatives

indicate on which was Fife, 676 at 568. It further said guilt. has the defendant’s based that: Schad, 2509. Accord Com. v. 111 S.Ct. at If one submitted alternate theories Mass.App.Ct. 583 N.E.2d Kickery, 31 unsupported by is jury to substantial 327 N.C. Lynch, evidence, general verdict must be set 210, 393 S.E.2d 811 can aside unless the court ascertain that upon the verdict founded case, the of this Within the facts supported by substantial evidence. affirmed with- degree murder conviction single fact knowing whether a out Submitting jury by majority claims to which

unanimously determined unanimously al- have no foundation evidence jury, let alone activity Bouwkamp engage conjecture lows the to or except admitted speculate guilt. after the to as to the defendant’s accessary his as an conduct * * * proper in this de- Parties are entitled to in- Anything else determined fact. covering respective actually demonstrated to structions their theo- cision cannot This ries “jury regarding decision.” the evidence submitted. have been the conjecture inele- supposition, inference original (emphasis Id. at 568-69 and cit- Here, we re- gantly to be fact. coronated ing Savings Barber Trust & Sheridan accept a Wyoming write Constitution Bank, (1938)). Wyo. degree for first jury verdict non-unanimous logic If has a one modest attraction affirming a justify most murder in order to applied rationality, invalidity of the precise questionable conviction. Clear parallelism premeditated attribution reconstituted language should not be to reach first murder and murder equivalency, of moral applied attributions apparent. immediately murder is “it or must have practice, historical even carefully defined re basic nature finding appellate fact decision been true” mur quirements proof premeditated rendition. proof are different from the of an quite der case result, Our 1984 intended some Fife completely inappo- (Wyo.1984) accident, happenstance pragmatic di presented an amended infor- site. The case intent, a death results. rection of willful involving forms of intent which mation two Furthermore, law intrinsic in constitutional provided have ways the could offenses, three there within character aggravated found the defendant potentially lesser included offenses to are steal, burglary, e.g., intent com- intent premeditated of second *38 aggravated a combination of mit assault or response manslaughter and affirmative count, defendant the two. In a second Conversely, is in there not of self-defense. aggravated assault and was convicted of jurisdictions any lesser included of most dangerous weapon. Al- battery awith felony charge and murder fense for though emplaced in reversal the case was deny guilt. is self-defense not available sufficiency any concept on on a of evidence State, (Wyo. P.2d 1217 v. 554 Richmond premise, it was concluded: 1976). See, however, Thomas, 386 S.E.2d Hester, George Survey, David

If theories of intent submitted 555 both v. The North Carolina Su sufficiently supported Thomas: were State Are evidence, gener- preme That There uphold the Determines we could Court Felony Mur- burglary aggravated on the Lesser Included al verdict of Offenses

527 der, shaw, (1990). See also 68 1127 N.C.L.Rev. 593 S.W.2d (Mo.App.1979) 562 Bills, rev’d on 101, other State v. 220 N.W.2d Handley, (Mo. 585 S.W.2d 458 grounds Dancer, People sub nom. v. 1979) (where 396 reversed, the conviction was 802, (1976), Mich. 238 N.W.2d 29 follow- when degree entered for second murder Carter, People ing 434, v. Mich. charge 395 236 and the which had been submitted (1975). felony N.W.2d 500 murder, was on the basis sec degree ond was a not lesser included of curiosity Bouwkamp, The and, accusation, fense without formal a illogically provided verdict sustained). conviction could be not murder, degree degree mur- second der, manslaughter, guilty or not differentiating without Another factor arises special unanimity sepa- instruction or the some cases from responsibili the vicarious rate premeditated or felony ty murder verdict co-participant where the decedent non-separately decision. The may defined felo- not be an intended victim. State v. Blackmon, ny crime could not permit murder 587 292 (Mo.App.1979), S.W.2d degree verdict of murder killed; Moore, second or man- co-actor Willie Cordell State, slaughter, McFarland v. 747, 579 N.E.2d 580 bystander S.W.2d fired the fatal State, (Ind.1991), 610 shot; and the admitted Miers v. 572, 157 Tex.Crim. after (1952). See, the fact conduct of the however, defendant 251 404 S.W.2d which a presumptive felony Redline, persuasion created murder converse 137 A.2d Com., conception 472 and Evans v. given 766, within the instructions 222 Va. 284 — could not have informatively justified any (1981), cert. denied S.E.2d 816 U.S. guilty application -, 309, verdict. In realistic (1990). 111 S.Ct. 112 L.Ed.2d 295 of the cover-up facts with the conceded Canola The cases additionally are informa status, activities felony and non-relational progression tive to demonstrate New Canola, received a directed verdict State v. Jersey. 73 N.J. 374 Canola, v. (1977); A.2d 20 State 135 of first denied, N.J.Super. cert. 343 A.2d The basic difference in function of 69 351 10 N.J. A.2d The inter when compared premedi murder esting facet of the vicarious victim cases as tated murder structure homicide recognition noted above is the innate criminal prag law demonstrated in the implied jus malice transferrable unavailability matic by a definition of premeditation tification for for the first terms of the lesser included offense17 killing where the itself be real Marks, self-defense, State v. affirmative istically accidental. en See confusion (1979); 226 Kan. Bell Till, in People v. gendered Mich.App. 16, State, court v. (Minn.1986), N.W.2d part, rev’d in (1977), N.W.2d 586 frequently analyzed more lesser Mich. N.W.2d based Smith v. included offense instruction. inadequate request for record to show in State, (1976); 259 Ark. 536 S.W.2d 289 struction. McFarland, 579 N.E.2d 610; v. Newman (Ind.1985); State 485 N.E.2d 58 The of transferred malice which is Chism, (1988); 243 Kan. centerpost got lost in Moore, (Mo.1979); logical explanation why separate S.W.2d verdict Dudrey, Wash.App. 447, State v. required.18 635 forms some- should A See also State v. P.2d 750 Brad- expansive through what walk the forest is, however, Wyo. Phillips Territory, (Wyo. my just See opinion, 17. It constitution- Const, 1872). ally unjustified. Wyo. art. 9 and §§ protection 10. constitutional to the accused fact, stated, simple seldom is that the designed signif- is diminished from the shift of unitary approach permits verdict a non-unani- proof responsibility away icant trial from the *39 jury consequent mous decision and substantial interesting analysis, J. state. see James prosecutorial benefit in trial reduced burden. McGuire, Note, Diminishing v. Schad Arizona: Otherwise, using pre- courts be most would the Specificity, the Need Verdict 70 N.C. L.Rev. for separate immediately ferred verdict form (1992). 936 uniformly. Actually, prosecutor may advantage given the morally inappropriate. not be 528 right jury a to a unanimous education that he has a considerable provides

cases the in with reference to criminal act unanimity the verdict constitutional why about * * * he for which was tried. conception of some courts does erroneous finding require however, a unanimous fact reso- apply, not The rule does not Thomas, Tim by jury. part See A. of lution the a series of acts form one “where Annotation, Jury transaction, Una- Requirement and as a whole and the same of Committing the nimity to Mode Crime constitute but one and same of- as of Setting Forth the Various fense.” Statute Under May Be Commit- by Modes Which (quoting People Offense 448 P.2d 101 Id. Jef- ted, Erwin S. 75 A.L.R.4th 91 219, P.2d ferson, Cal.App.2d Cf 564 Annotation, Barbre, Ter- What Constitutes (1954)). Purpose Felony Felo- mination of for of 268, case, Axley, 646 P.2d re The next Rule, 58 A.L.R.3d ny-Murder granted the a sulted when trial court had resting in ultimately premeditated cases directed on murder Arizona verdict case on vesting in the United States and submitted the instruction of law Schad, only felony Consequently, at in 111 S.Ct. Supreme decision Court on came on the indictment and not panorama. In tack interesting an provide unanimity a subject verdict. The of of Schad, no consideration was verdict was not considered. The relevant unitary submission. given to the verdict in Arizona rule then Enci was established reappeared in Arizona case When the nas, 647 P.2d 624 where first Schad, in 691 P.2d Supreme Court applied rejecting rule one-crime was improper instruc- issue considered was for of requirement a unanimous decision felony felony in the on murder. Error tion premeditation on either the and the was found instruction felony This a murder constituents. was court said: manner, precise offense allocation to one given only jurors one Since the were requirement unanimity for in deci adjure degree murder, form verdict for first of for sion on the basic facts submitted of they determine whether we cannot now require The non-election fense conviction. degree murder based voted for first again premedi ment was addressed felony murder. The premeditation or on Walton, 159 Ariz. tation case possibility they convicted Schad granted, cert. 493 U.S. on the murder based defi- (1989), 107 L.Ed.2d S.Ct. constitutes fundamental cient instruction S.Ct. aff''d, 497 U.S. error. with no issue raised L.Ed.2d then re- defendant was Id. at 712. The These unanimity presented. verdict case, Schad, resulting tried disruptive process cases again unitary jury P.2d 1162 tells that as go away then last illustrated would employed. verdict had been Smith, 160 Ariz. State v. cited in recent time for The case first (1989), raised where the issue was Counterman, 8 Arizona law was State verdicts after alternative inconsistent Ariz.App. P.2d 96 where had been used. forms verdicts deadly with a charge murder, had assault been guilty defendant found case weapon. issue The actual premeditated murder and the in- presented requested a election with subsequent recognition court said Schad, testimony providing indica- quotation formation and ly reappeared as a deadly separate with a tion of assaults two 2491: weapon. The revealed that evidence Thus, as a matter sound administra- during weapon discharged twice efficiency process- justice tion of court, denying offense. future, assaultive urge ing we murder cases elect, requirement stated: courts, is submitted to trial when case premedi- right theories of person on alternate has a constitutional [A] murder, offense, give alter- tated and put single on trial for

529 jury may nate forms of verdict so the 121, State v. Golladay, 78 Wash.2d one, 191, neither, clearly (1970), indicate whether or 470 P.2d involving felony premeditated murder, apply. both theories the court had in reversing said the conviction and Smith, at 774 P.2d 817. One real- could remanding for retrial: istically anticipate by that now word Thus, a defendant may charged be gone has forth and that state of committing single a crime in or two Arizona, again Schad and Encinas will not ways more proof uphold of one will Unfortunately, longer reoccur.' what is no the indictment or information. But be- status Arizona reoc- becomes what fore jury can be instructed on and Wyoming. By curs in misunderstanding allowed to consider the ways various of law, progression the current of the committing alleged, the crime there must provide thoughtful court not will now a be sufficient support evidence to the in- analysis development for logical for our Moreover, structions. the instructions own law. must clearly distinguish the alternative case, Washington The cited v. State require theories and necessity for a Whitney, Wash.2d 739 P.2d 1150 unanimous verdict on either the alter- (1987),holds, rape, that at least for unanim- case, natives. When such is the pros- ity necessary charged was not if each alter- ecutor need elect, not be forced supported by native is fear jury “substantial evi- that half of the will find dence”; deadly weapon whether use of defendant on one half on another kidnapping. theory. recognized that deadly threatened use of a weapon and Golladay Arndt, lasted until v. State crimes, kidnapping were different but not (1976) Wash.2d P.2d where necessarily different offenses. The court the “Golladay dictum” was overruled then said: larceny by receipt public fraudulent as- sistance case awith new rule of mutual Petitioner concedes that substantial evi repugnancy being then created. This rule supports kidnapping dence both the was, dissent, as described on built deadly use threatened use of a ]”, “faulty to-wit: the title of foundation[ weapon. Because suffi constitutionally Arndt, the act. 553 P.2d at supports charged cient evidence al both Brachtenbach, A.J., dissenting. dis- That ternatives, lack jury unanimity prior sent found the state law have been: danger present does not entail the II “An any jury

Green that accused is entitled to the concur- members [State v.] may II, an 94 Wash.2d invalid have based their P.2d Ellison, Wash.App. ground. ^[216] 531. We See at finding [State v.] agree ^[564] Green, 628;" rence of twelve beyond that charge of they must reasonable doubt crime.” should have jurors upon unanimous in * * * been one instructed definite finding de- unanimity instruction on fendant committed one or more of the prefer the alternative method charged. acts found potential able because it eliminates Oswald, (quoting Id. at 1339 State v. problems which arise when one (Mo.1957)). S.W.2d See also State supported by alternatives not Wixon, Wash.App. evidence; however, substantial con we repug- also followed clude that such an instruction was nancy rule. required in this case. split With the Arndt court decision added). (emphasis Id. 739 P.2d at 1153 place, the Green cases followed. Green,

Washington appears, now at least for this 91 Wash.2d case, Green, type adopt (1979) (Green I) “sufficiency and State (Green evidence that the could have found” Wash.2d II), always involving rule. way. capital penalty It murder con- *41 530 Washington contention court followed Jackson Vir- for an error Assessed

viction. 443 99 61 U.S. S.Ct. aggravated ginia, I conviction of in Green Winship, and In 397 re- L.Ed.2d re means without by alternative applied 1068. The court alterna- U.S. S.Ct. verdict. The a unanimous quiring concept: a rule rape and kid- as aggravating offenses tive pro- The decision presented. were napping agree Green’s contention We with evidence requirement of substantial separate vided unanimous verdict absent killing in- single ag- crimes when of both critical each the two elements felony murder and of both degree, theories it is gravated volved murder in the first jury premeditated impossible whether the to determine unanimously that ei- found he committed sub- that there exists are satisfied We rape kidnapping ther or both. jury the or from which evidence stantial appellant infer killed while could the statu- of or in furtherance of course case, jury In the the instruc- instant kidnapping. torily defined offense require the tions and verdict form did not suffi- challenge the

Appellant does com- jury unanimously appellant find rape. regarding ciency of the evidence attempted or either mitted commit Thus, evidence since is substantial there degree kidnapping rape or both. Arndt, circumstances, it applying of both instructed, possible for the it was As jury the to instruct the was not error six jury to have convicted Green with alternative. upon jurors resting their belief of I, 1377. 588 P.2d at resting Green kidnapping the other six Thus, rape. impos- upon belief it is their However, I evi- substantial the Green the unani- sible to know whether II discarded Green rule was then dence rape mously decided that element doubt a reasonable permit adoption of beyond a reason- had been established rule. doubt. able test for Accordingly, appropriate II, (emphasis the evi- P.2d at sufficiency of determining the Green re- applied original). Consequently, case was is not that kidnapping dence of I, whether, viewing the for. This of the i.e., after versed retrial. review Green State, Washington provide much cases does not favorable to evidence most support justify or structure to either is evidence stature there substantial issue, equivalency plurality framed moral Schad kidnapping. The justification process due U.S. the historical Virginia, Jackson [443 concurrence). (1979)], (Justice special Scalia’s L.Ed.2d 560 in- whether, viewing complexity most law evidence created after rules becomes any congruities rational tri- of differentiated favorable to the essential have found self-evident.19 er could of fact beyond reason- kidnapping elements of is the case which law of California able doubt. among jurisdictions most extended In where II, pathway confused. (emphasis at 632 also most Green nearly every direction can be found making progression, original). discretion, Loehner, See, may, its example, tected.... The State as a further Wash.App. rely upon it for convic- P.2d 377 the act which will elect subject of differentiated Alternatively, addressed the similar if the is instructed tion. charge and defen- criminal underly- incidents within the jurors agree that the same all 12 must prosecu- requested dant’s denial election for proved beyond ing a rea- has been criminal act by quotation from State tion. The court stated doubt, on one a unanimous verdict sonable Petrich, v. (1984): 101 Wash.2d the State act be assured. When criminal will elect, must not to instruction chooses dis- "When the indicates that several evidence understanding jury's given to ensure be committed, but acts have been tinct criminal defendant unanimity requirement." charged count of one Loehner, 711 P.2d at 378. conduct, pro- jury unanimity criminal must Castro, ra, People v. 133 Cal. 65 P. 13 Cal.Rptr. 374, Cal.3d *42 (1901); 632; Chavez, 234 People P.2d v. (1985); Schultz, P.2d 1252 see People v. 166, 328, Cal.Rptr. Nye, 63 Cal.2d 45 403 535, Cal.App.3d 192 Cal.Rptr. 513, 237 516 denied, 1026, (1965), P.2d 736 cert. 384 U.S. (1987), progression with that led to People 1960, (1966); 86 L.Ed.2d 16 1033 Sanders, 471, v. 51 Cal.3d 273 Cal.Rptr. Milan, 185, then 9 People v. Cal.3d 107 537, 558, 561, (1990), 797 P.2d 582 cert. (1973) Cal.Rptr. 68, P.2d 956 from — denied, U.S. -, 2249, 111 S.Ct. Chavez, unanimity as a distillation of L.Ed.2d where the court es concept as a constitutional for conviction of caped requiring from with reversal the con presented. a criminal offense This cept of harmless error jury that “the non-unanimity in criteria California case degree reached its verdict of first murder fairly resulting law ran rapidly into trouble legally under proper theory.” one Before in People Alva, reversal in both v. 90 Cal. reaching concept that startling of unanimi 418, App.3d Cal.Rptr. (1979) ty in jury constitutionality decision and re Diedrich, 263, then People v. 31 Cal.3d unproven garding guilt, the court had relat Cal.Rptr. 643 P.2d 971 ed: People immediate watershed case came in Dillon, Cal.Rptr. 34 Cal.3d People presented jury with six (1983) which touched the potential degree first murder theories. consistency

tender nerve of when the basic being addition instructed that it felony examination of murder in constitu return a degree should verdict of first tional concepts presented. issue if premeditat- murder it found defendant resolution, For purpose that the Cali killing, ed and deliberated the or killed Supreme fornia Court said: during robbery, was also in- analysis It from the foregoing follows that structed it could return a verdict of that degree the two kinds of first murder degree first murder if it found the mur- this state differ a fundamental re- der during burglary was committed spect: pre- case of deliberate and which defendant Boender’s entered home meditated with malice afore- (1) steal, (2) intent with the commit an thought, the defendant’s state mind assault, (3) victims, falsely imprison the respect all-impor- homicide is tant proved beyond (4) and must be a rea- testify- or dissuade the victims doubt; degree sonable ease of first ing. entirely murder it is irrelevant contends, correctly Defendant proved and need not be at all. From this concede, People now it that was error to profound legal equal- difference flows an might instruct it convict ly distinction, wit, significant factual killing murder if it found degree felony that first murder encom- during burglary in which occurred de passes range wider a far of individual intent was to commit an as fendant’s culpability premedi- than deliberate and Ireland, [People “In sault. [70 v.] It tated murder. includes not 522, Cal.Rptr. Cal.2d latter, variety but also of unintended rejected bootstrap (1969)], we rea resulting from homicides reckless behav- soning taking involved an element of a ior, negligence, ordinary pure or or acci- dent; using underlying it homicide it both calculated con- embraces panic rage, degree felony-murder duct and acts in a second committed illness, or under the dominion mental that the same instruction. We conclude alcohol; drugs, or and it condemns alike bootstrapping instructing is involved in consequences highly probable, that are the intent to assault makes the conceivably possible, wholly unfore- burglary entry burglary and that seeable. resulting from the raises the homicide (footnote Dillon, omitted). at 719 to first murder without assault aforethought pre proof malice The two offense delineation of Dillon (1969) then easily disappeared People (People Guer- meditation.” Wilson Cal.Rptr. one correct rule 462 “can determine” Cal.3d 22.) applied. “a was thus concluded that We P.2d intent to assault ... burglary based on pathway through Reconstruction this felony-murder support a instruction.” cannot (Ib sample many California cases is id.; People also v. Smith see logical lack of not taken illustrate con- Cal.Rptr. 35 Cal.3d sistency. Rather, it is to demonstrate done 886.) taking pre- the different offenses *43 felony meditated murder and murder and Although instruction was errone- is, factually stating they that are the same ous, agree People that the with we actuality, regardless in true not prejudice defendant. The error did not frequently authority source of cited legally per- five presented with was in contrary. majority The decision this legally one theories of and missible honoring by case is not made reliable either theory. In such circum- impermissible Wyoming adaptation of Constitution or stances, appeal rule on is applicable Schad, 111 2491. S.Ct. only required if the reversal is clear: reviewing cannot determine from court crimes, premeditat that say To these two re- murder, on which the record felony are the same ed murder asserting lied. no different that offense is than fifty-four capital pro the some offenses 557-58, Cal.Rptr. at at 797 P.2d Id. posed to be created crime control federal 581-82. Congress legislation pending now are law then came progression The case If one crime because one crime. it is Johnson, recently 233 Cal. People penalty only that identi one can result and (1991) Cal.Rptr. 579 where App.3d present Wyoming ty, then to assert under plead appellate court determined aggravated many combinations of law suffices for con ing premeditated murder capital are crimes which are offenses by murder a most interest felony viction of crime which as a matter of likewise one ing logical conceptualization: manslaughter, aggrava include fact would interpreting errs Dillon Defendant vehicle, homicide sexual assault ted holding pre murder as degree, aggravated robbery, ag the second are murder two distinct meditated arson, blackmail, degree gravated first (1991) 229 (People v. Cal. crimes. Scott aggravated burglary, while another crime 274.) 707, 713, Cal.Rptr. Dil App.3d aggravated kidnapping and sec would be premeditat felony murder and lon treats degree incongrui ond It was kinds of first ed murder as “two to create ty required Justice Souter requiring different elements murder” Schad, equivalency. the test of moral Dillon, supra, proof. (People logically our Rationally S.Ct. 476-477, Cal.Rptr. pp. Cal.3d at creation of more this result-oriented 697.) language defendant imaginary structure where factual under (“the quotes opinion two kinds from the pinning lacking really makes no sense. crimes”) ‘same’ of murder are not the at It be far if we would look would better (id. Cal.Rptr. 476, fn. p. finding, cases a dual verdict as with 697) merely employed to was Sides, example, 944 F.2d United States v. equal protection “narrow refute Dillon’s (10th Cir.), de n. 3 cert. 1557-58 — charged argument” with that defendants nied, -, U.S. murder, charged unlike those original), (emphasis in L.Ed.2d 627 murder, are allowed to premeditated Brorby by Judge opinion offered where guilt by degree of evidence reduce their spe- advantage of recognized the definitive (Ibid.) of malice. negating element the differenti- a case where cific decision established ated conclusions were See, Johnson, Cal.Rptr. at 595. how verdict: ever, Kelly, 1 Cal.4th Cal. People thoroughness, (1992), which is Due to commendable Rptr.2d confirms Interrogatory also Special appellate even more recent where * * * finding of ger fragmented that each first aof verdict. I supported jury’s differ, however, conclusion that application with the * * * “the Defendant of murder that rule this case. degree, including malice Parker, 592 A.2d at 235. aforethought....” dissent, extended discussion as In a providing case “a ‘conscientious’ well in the majority, and the common sophisticated jury” pastiche and a of dis- recognition that depriva- the effort was a unanimity creet acts where instruction tion of the defendant’s right fundamental considered, Supreme was Jersey the New proof to be convicted based adopted request Court the instruction on acts, specific illegal plain came within a criteria danger frag- where there error review since an instruction had not mented verdict: Furthermore, requested. been no Schad general

Ordinarily, presented on the issue instruction verdict at all. Con- requirement unanimity versely, perhaps to in- even compatibly, suffices *44 majority struct defined in jury the that it must be the issue terms of unanimous the politics specifications writing on to enfolded decision in whatever it finds be the predicate the North case: guilty There verdict.

may appears be circumstances which it The celebrated case of Oliver North genuine possibility that a confu- jury of highlights this issue. United States v. sion a North, (D.C.Cir.)(North exists or that conviction occur I), 910 F.2d 843 jurors concluding as a result part of different part vacated in rev’d on that a conceptually rehearing, (D.C.Cir.1990) defendant committed 920 F.2d 940 — (North II), denied, U.S. -, distinct hold acts. We that when there is cert. verdict, such of danger fragmented a a 111 114 S.Ct. L.Ed.2d 477 — denied, U.S. -, the on jury, court must instruct a re- cert. 111 S.Ct. quest, returned, (1991). guilty that if 114 L.Ed.2d 477 North a verdict is had specific unanimity jury requested the must on un- instructions be unanimous the objected from the trial court and had derlying Such charge facts. a was give court’s requested trial refusal such in here. We are that in satisfied structions. case, of circumstances this was there genuine no possibility jury of confusion Parker, 592 A.2d at 232. responsibility unanimously about its Furthermore, not a this was non-unani- guilty find defendant of official miscon- mous instruction case: specifications duct on charged. not a This is case in which a court incor- Parker, State v. N.J. 592 A.2d general rectly principles. stated 228, 234, “jury instructions cannot be read as sanctioning a nonunanimous verdict.” thought required regarding Some 647, 663, Conn. Pollock, Jennings, State v. comments dissent Justice The court cor- 583 A.2d who recognized also the ultimate to be test rectly jury instructed the that it must be genuine confusion, a potential jury ques- unanimous its verdict. The core conceptual ap- then followed the distinct is, light allegations tion made proach Gipson of as well as the Schad tion test: analytical with dant’s mous verdict of consensus strikes “fundamental,” Because the must right limitations majority give to a rule guilt doubt about the fair a at the that generally specific unanimity of trial. requiring in criminal conceptual heart of a defen- * * * a the trial trials I distinc- unani- jury’s agree in- nied, Id. 592 A.2d at 233-34. chaine, North risk that F.2d structions and the United States v. — ^[1104] II, 572 A.2d 130 statute U.S. supra, “as a whole -, 1114) [(6th Cir.1988)]. charged, 920 F.2d [would Duncan, supra, [posed] (Me.), Cf. be] whether the in- at State v. De confused.’ ‘a cert. de (quoting genuine ” (1990); Walsh, struction when confronted with the dan- L.Ed.2d State Allard, Duncan, (Me.1989); requirement. and State A.2d (Me.1989), (Iowa 1981). where alternative 557 A.2d 960 N.W.2d used a one-crime were verdict forms question second is whether subsequently affirmed. conviction had on to be unanimous Connecticut, which has been The law respect respect to boat or with attention, also given considers substantial marina, find whether the could given to sanc- whether an instruction burglary a combi- defendant verdict, not, and if tion non-unanimous a respecting nation votes marina apparently if matter is at end then the boat. A unanimous verdict is of general unanimous instruction some required this kind of case. course given. specific This is kind had been rule found in the of the Parker converse principle inter point At another Jersey case. New necessary jury, “It is not that a venes. merits, required we have On verdict, in order find should concur given in unanimity charge to be specific single in a view of the transaction dis liability may every case in which criminal by the If the conclusion closed evidence. premised the violation one of be justified upon may be either of inter two subsections a stat- several alternative evidence, pretations verdict instead invoked a multi- ute. We have impeached by showing cannot partite test review trial court’s omis- part jury proceeded upon in one of such an instruction. We first sion *45 part upon terpretation and another.” given to the instruction that was review Sullivan, 122, 127, 65 People v. 173 N.Y. court has whether the trial determine (1903). differently, N.E. 989 Stated If sanctioned a nonunanimous verdict. presented substantial evidence is “[I]f given, has not been such an instruction support method com each alternative of if in- ends the matter. Even that crime, mitting single a alterna trial can be reasoned to structions at other, repugnant tives are not to each sanctioned such a nonunanimous have unanimity as to the then however, verdict, we remand for will mode of the crime is not commission of (1) conceptual if there is a trial new Arndt, required.” v. 12 State Wash. distinction between the alternative acts 248, 252, (1974). App. 889 has defendant been with which the presented charged, and the state has prob- (emphasis original). Id. at 523 The support each act evidence to alternative specific concept lem in is that state- has which the defendant been with regarding Washington prece- made ment charged. longer jurisdic- dent is no law 605, 595 Famiglietti, v. 219 Conn. State tion. 313 A.2d Michigan The court in the second of two non-unanimity require Iowa has built its Embree, cases, People Mich. Embree 70 non-repug- ment on a thesis of structure (1976),affirmed App. 246 N.W.2d 8 premeditation, murder and nancy of finding on the instructional issue (Iowa State, App. 673 Gavin v. 425 N.W.2d premedita overwhelming evidence of both 1988), murder is and that murder, then added: tion separate requiring con unitary offense not bring if we did not We would be remiss by premedita sideration achieved whether the attention of the bench and bar felony partic augmentation tion or the practice require good fact that would Fuhrmann, ipation. 257 State v. N.W.2d its judge to instruct the trial Nowlin, (Iowa 1977); unanimous as to wheth- decision must be (Iowa 1976). also inef N.W.2d 596 See or premeditated the murder was er Gavin, inquiry fectiveness counsel as an incident whether it occurred adopted 425 N.W.2d The Iowa participation one of defendant’s repugnancy-substantial test evidence felonies. avoid the unanimous content of the verdict enumerated Michigan apparently Abrahamson, judiciary The now rec- Justice in the thoughtful and given. ognizes the admonition earlier scholarly special concurrence, See recognized Zeitler, Mich.App. 68, People v. 454 the advantage unanimity instruction (1990), the conviction N.W.2d where committing on the mode of the offense. degree premeditated of first Baumgarth, Note, See also John R. Appli degree felony and also first murder with Gipson’s cation Unanimous Verdict imposed. one sentence Rationale to Party The Wisconsin ato case, In another instruction which is fre- Crime Statute — Holland v. cited, Holland, quently N.W.2d Wis.2d N.W.2d issue related to direct commission or (1980); Wellman, Wis.L.Rev. Sally aiding conspiracy and abetting or and re- Note, Constitutional Law—Criminal guilt sulted of second Jury Instructions and the Procedure — Although some broad discussion authori- Verdict, Jury Unanimous 1978 Wis. ties, including Winship, 397 In re U.S. (1978); Gibbs, L.Rev. 339 and Gary N. Gipson, 1068 and 553 F.2d is Note, Gipson: United Duplicity States included, Sullivan, N.E. which is Right Verdict, Denies to Unanimous converse, equal approv- was also with cited Det. C.L.Rev. 319 unanimity al. Holland court then said Generally, presented the issue is either required only respect to with the ulti- to consider the unanimous decision mate issue of the defendant’s inno- regarding unitary instruction or the dual or charged unanimity cence the crime verdict form may present where case required respect to the alterna- concepts distinguishable of either methods ways means or tive crime can be of crime commission diverse events in committed. course of the It apparent occurrence. statute, party to the crime as Hol- the discussions intermix without re land, cannot compared proven gard concept for which is considered. For presumed malice and intent differentiation example, Supreme recog Ohio Court present involved the issues of concern. “ *46 nized danger ‘patchwork’ the Wisconsin, by The law of examination * * * ” less than verdict unanimous State, 413, Wis.2d Manson v. 101 304 Johnson, 96, Ohio State v. 46 St.3d 545 729, (1981),applied Gipson N.W.2d 737 636, denied, N.E.2d 645 cert. 494 concept: 1504, 1039, U.S. 110 108 S.Ct. L.Ed.2d 639 right The to a constitutional unani- (1990). The robbery involvement mous verdict exists under both the felony sufficiently was murder death de United States and Wisconsin Constitu- any potential fined to avoid confus Baldwin, tions. See 101 State v. Wis.2d ion.20 (1981). 446 n. 304 N.W.2d 742 The scope right, The nature and that converse law is illustrated Okla- of how- ever, are candy robbery not well defined and have homa been store case of receiving State, (Okl.Cr.1981), increased attention v. 637 P.2d 862 James years. and in recent courts commentators produced felony a and malice discussing leading question The case aforethought killing resulting with a uni- jury unanimity is United States v. tary degree verdict of first murder and a (5th Gipson, Cir.1977). 553 F.2d 453 life sentence. Oklahoma court fol- authority lowed the ostensible of a Colora- footnote, By Gip- the court stated that the case, do People Taggart, v. analysis adopted had for deter- son been (Colo.1981), Oregon mining and the since-reversed right whether the to defendant’s Hazelett, Manson, uphold case P.2d to 492 unanimous verdict was violated. requirement only “the 101 Wis.2d 304 at 737 n. 6. that verdict N.W.2d State, unitary The trouble first 386 S.E.2d See v. that the mur- 555. also 543 20. Huffman — questions denied, concept (Ind.1989), makes der when lesser N.E.2d 360 cert. U.S. applied -, included offense are singularly murder is 111 L.Ed.2d 110 S.Ct. 767 Thomas, the case of demonstrated in 536 guilt or innocence is instructed on the alternative meth but

must be unanimous they committing first but that a crime and on the of murder in the ods decision on its not a unanimous requirement need reach of a unanimous verdict. pre murder or Pavloski, in either foundation 574 F.2d States v. 933 United James, 637 at P.2d meditated murder.” (7th Cir.1978); Bolts, United States v. cases, cited two other also Cir.1977), denied, James (5th 316 F.2d cert. 558 Com., Wilson, 931 and Wells v. 262, L.Ed.2d 439 U.S. 99 S.Ct. However, (Ky.1978). S.W.2d 85 consistently State courts have finding made adjudicatory fact was “[h]av- unanimity required held that with decisions, having ing these examined respect to the ultimate issue of de prove pre found that the State did both guilt or innocence of the crime fendant’s murder, felony-based meditation and charged respect not with alterna the jury Court finds that failure was com tive means which crime finding indicate the basis their mitted. James, P.2d at 866. error.” at 1387 n. 5. Taggart, P.2d v. P.2d See also Newsted authority does The other Colorado (Okl.Cr.), denied, 479 U.S. cert. compel- provide more well documented and (1986),which was L.Ed.2d 599 authority. special ling concurrence of involving shooting penalty a death case Justice Lohr in the four-three decision of of his head of a taxicab driver the back People Marquez, v. 1104-05 robbery. conjunction with an admitted (Colo.1984)(footnote emphasis omitted and princi- court relied Since the Oklahoma added), Gipson rejecting in following cases, Oregon case since pally on two Sullivan, per- subject addressed the Taggart from Colo- reversed case suasion: rado, required. to Colorado law reference Ledman, P.2d People In regard Taggart, a close examination (Colo.1981) People Taggart, 621 application the broad assert- cannot sustain (Colo.1981),we P.2d 1375 addressed this death of a child ed. The involved the case “ cases, however, In both we noted issue. ‘evidence of and the court said object had failed to defendant ways that crime any of alternative during proceedings to an instruction support general will can be committed ” verdict, general inviting a and under (quot- Taggart, 621 P.2d verdict.' general held those circumstances 23, 30, People, 156 ing Colo. Hernandez unanimity necessity instruction on the (1964)). The Taggart Implicit sufficient. in those deci- court then stated: *47 the principle that a defendant sions indicates that the defendant record right request a a verdict form that has to object did not to the elemental instruc- method of commission of identifies the abuse, request failed to a tion on child crime, at least where the alternative verdict, and his special did assert encompass conceptually distinct methods challenge general to present verdict of material and different combinations in his new trial. Under motion In culpable mental states. acts are not inclined such “we circumstances us, now the defendant made case before general instruction on to hold that the timely trial request, and the unanimity such necessity was insuffi- grant refusing in it. erred cient.” charged with com- The defendant was (quoting at Taggart, United in (7th robbery alter- Pavloski, aggravated mission F.2d States which, Cir.1978)). ways although not neces- Incidentally, the court in foot- native Gipson, sarily mutually 453 as exclusive under the facts distinguished note 553 F.2d case, “inapposite” stating: in combinations of con- this involve culpability elements that and mental duct Subsequent have found federal cases different conceptually distinct and are Gipson inapplicable jury is not where First, he could have non-unanimity from each other. specifically instructed guilty jury been found based on a deter- could if agreed convict all that the defen- mination that he was armed with a dead- dant guilty of the offense charged intended, ly weapon resisted, if disagreement even if in as to the acts of kill, maim or person. wound another upon defendant which their conclu- 18-4-302(a), (1978). Second, 8 C.R.S. guilt § sion predicated. As the the defendant could have been found to Fifth Circuit Appeals Court of there stat- aggravated have committed robbery be- ed: cause he knowingly wounded or struck “Like the standard, ‘reasonable doubt’ person deadly weapon. another with a which was found to be an indispens- 18-4-302(b), Finally, C.R.S. § able element all criminal trials in In the defendant’s could have been Winship, re 397 U.S. bottomed on a determination that he 25 L.Ed.2d the unani- knowingly put person in reasonable jury requirement mous ‘impresses on bodily injury by fear of death or the use the trier of fact the necessity of reach- force, threats, or intimidation with a ing subjective state of certitude on ” deadly weapon. 18-4-302(b), 8 C.R.S. § the facts in issue.’ (1978). The second and third methods of Furthermore, the broad statement elevation robbery of the crime of in Taggart footnote was then re-examined more aggravated serious offense of rob- by a further footnote the more current bery involve acts additional to the mere case of People, James v. 727 P.2d possession of a deadly weapon required (Colo.1986), 4n. wherein it was stated: under the first method. The first meth- general We have made a statement requires specific intent, od culpa- a more involving several cases alternative theo ble mental state than knowing con- culpability ries of criminal that evidence required support duct conviction under establishing any one sup alternative will the second and third. port general People verdict. v. Mar implicit It is and Taggart Ledman quez, 1100; People 692 P.2d at v. Led that the defendant was entitled to sub- man, 541; People Tag special mission of verdict forms to the gart, 1387; 621 P.2d at Hernandez v. jury upon timely request. Under the cir- People, 23, 30, 156 Colo. case, that, cumstances of this I believe Those cases addressed the order to have found the defendant question unanimous verdict and were not aggravated robbery, should require focused on the constitutional required agree have been unanimously proof beyond ment a reasonable upon the essential acts and mental state necessary doubt is to sustain a convic upon which By their verdict was based. tion. imply We did not mean to in those otherwise, holding majority greatly cases that an alternative could be right dilutes the unanimous verdict to a adequate submitted without guaranteed to the defendant section support evidence to it. To the extent 16-10-108, C.R.S. Crim.P. implication that such an is to be found 23(a)(8) 31(a)(3). language, reject contrary it we reaching conclusion, I am requirements process of due of law. *48 aware that there are decisions from oth- See, e.g., Winship; People In re ex rel. permit er states that would the sort of Juhan v. District Court Colo. [165 patchwork imper- I verdicts would find (1968) ]. See, e.g., People Sullivan, missible. text, Continuing in the court stat- James 173 N.Y. 65 N.E. 989 I be- ed: lieve, however, that the better reasoned approach agree We that unless the evidence on Judge is to be found in Wisdom’s each of the alternative methods of caus- opinion United States v. (5th Gipson, Cir.1977), ing 553 F.2d 453 re- the victim’s submission is sufficient versing a support by proof beyond conviction because of a trial a verdict doubt, jury they instruction to the that there can be no assur- reasonable general premeditation verdict is based of while others arrive at a the

anee that guilt man- by constitutional standard reason of the killer’s upon that verdict process purpose. due clauses of both malignant the In such case dated As and state constitutions. the federal verdict is unanimous and of murder Lowe, People we stated satisfactorily in the first has been ^[1271] (Colo.1983), “[i]f jury is established. If a verdict of first degree general only for verdict asked [when justified can be on either of murder two is alternative prosecution based on evidence, premedi- interpretations of the crime], then on committing methods murder, the verdict tation can- upon way no decide appeal there is impeached showing that part not be its verdict. jury reached proceeded jury upon interpre- one relating an to either In such a case error part tation evidence anoth- verdict.” count would void the entire er. at 853. general Id. holding The above meets with acceptance jurisdictions other require- as progression a defined requires absence statute which for as separate for verdicts Colorado ment agree mode in jury to the which a Lowe, re- 660 P.2d 1261 was initiated in committed. Freeman, then P.2d 1371 and stated O’Neill, recognized in recently most however, recently, More Kansas Freeman, P.2d at 164. In court, in addressing the same structural said: the court unanimity, involved in law of concern although We conclude therefore stated: motion to of the defendant’s the denial believe, however, it is appro- We error, con- election dual compel an priate to matter as it address the could may not be en- and sentences victions again in arise a retrial herein. The de- after deliberation tered on the murder dealing fense cites with a cases trial respect to felony murder counts with duty to all lesser in- court’s instruct on to be killing. proper procedure each pursuant cluded offenses to K.S.A.1987 remand as we stated followed on 21-3107(3). Involuntary Supp. man- Lowe: crime, slaughter charged not a “If there is sufficient evidence Likewise, included herein. lesser offense record, charged should be all theories amendment of this does involve an special ver- to the submitted Rather, information the State. jury should be informed dict. The part effect was trial court deleted crime, charged one the defendant is charge on motion. its own special first-degree jury’s murder. The involuntary Inasmuch man- theories of verdict should indicate which charge slaughter in the information was murder, first-degree any, if have been alleging different one count two means P.2d at proved by the evidence.” 660 commission, presumably the instruc- would tion and verdict form have charge requires comparison presented whole Kansas law likewise Hence, more real- the court’s intervention. rule and the without between the older Wilson, istic, had defendant been convicted involun- present understanding. See impossi- 935-36, manslaughter, tary said: it would where the court 552 P.2d at means of commis- to determine which ble that the being the it follows This case occurred. A sion the had found necessary to question proof one of sufficiency of the challenge to the evi- support a verdict supporting conviction would dence count charged an accused is one When *49 problem. reveal premeditated anof information with both proper method to believe that the murder and murder it matters We charge the employed ar- be to two jury some be would whether members of alleged means of commission as proof on different rived at a verdict of based involuntary Separate counts of man- special alternative verdicts or interrogato- slaughter. separate This the ele- would ries should not constitute an unreasonable instructions and the verdict forms requirement ments in the interest certainty reviewing enable a to court deter- specificity trial with and clarity conse- precisely jury mine what found. quently provided appellate for review. Further, prevent jury it would from Sides, appellate 944 F.2d 1554. The hybridizing the two into some means deciding has no business for itself if or how specified means commission not there is sufficient evidence to convict if the defining involuntary manslaugh- statute process may actually instructional have ter. jury. confused the Nye See v. & Nissen States, 613, 629, United 336 U.S. 69 S.Ct. Prouse, v. Kan. P.2d 766, 774-75, (1949), 93 L.Ed. Murphy, (1989). 1308, 1314 J., dissenting. Patchwork verdicts should ap- The current more awareness of the place accepted find no in Wyoming law. process propriate in the demonstrable 1089; Marquez, Johnson, P.2d Mexico, case Ortega, recent from New 645; Trubitt, Hayden N.E.2d at J. Patch- presented where Verdicts, Verdicts, work Different-Jurors special the issues form dual verdict Jury Theory: American Whether pre- and found defendant not Invalidated by Jury Verdicts Are Dis- murder, case guilty meditated but in each Issues, agreement Okla.L.Rev. 473 Barbara See also L. (1983). Lauer, Comment, Jury Agreement and the Cases, (or XIX requiring General Verdict in Criminal permitting) Verdict forms & Land Water L.Rev. 207 unanimity in decision should be required. and Price Cloman made bad appellate responsibility, do little we recognized, law. The this is sooner to provide credit ourselves or moral sub Wyoming better the substance of criminal responsibility government stance our for done, justice proceedings will be. It will be process simple of recognizing solu I do it but would now. preferable tion which would be and then nothing to doing require compli achieve or Surely, it much

ance. should not be too VII. challenge specific Wyoming for to adopt progressive determinative CONCLUSION Mexico, process followed New North serving Bouwkamp, now a life sentence Carolina, Kansas, Oregon Colorado. murder, for under the circum- 916, where Holley, also 942 F.2d See trial, effectively stances of his convict- in a was re conviction non-homicide case accessory ed of an offense after the give unanimity for failure to in versed fact, admitted he which he and for which struction; Johnson, People 197 Ill. charged, proper oppor- and denied was not App.3d 143 Ill.Dec. N.E.2d 696 tunity present his defense of innocence separate where were verdicts used aiding betting accessory cases; very recent Huffman a homicide which commission of he abso- — denied, (Ind.1989), N.E.2d 360 cert. lutely completely Whether inno- denied. U.S. -, 110 S.Ct. 111 L.Ed.2d 767 totally guilty responsi- criminal cent or 130; (1990); Dechaine, 572 A.2d Al killing, bility was denied lard, neglect 557 A.2d 960. Waiver right adequately de- the constitutional request singularly separate find valuable fend. compe ings in verdict no matter how legal equal majority representation proved process, In this makes mon- tent the ju- adversely umentally Wyoming law for future ly and efficacious in United bad Cir.1991), (2nd Garcia, justification risprudence in finite of a man- 938 F.2d 12 States — denied, U.S. -, to convert the admitted datory presumption rt. ce 868, the fact criminal conduct 116 L.Ed.2d 774 after *50 adjudicative curiosity A of invoking offense a life business guilt of an into Wyoming journal publication law a for first sentence area thoughtful discourse examined this misapplications mis- These decisive and, reason, Wyoming law no of some deep-seated legal princi- of constructions or one seems to have researched at least finding ples, fact each combined Lauer, L. publication. Barbara cited the by this court in assid- pursued now exercise Comment, supra, XIX Land & Water jury might have uously guessing what comprehensive 224 provided L.Rev. at a presented, evidence offend done within the including analysis subject, signifi- of the justice where: law Gipson, like cant cases Sullivan and theory of Bouwkamp was denied cases, 1. outlined variant solutions Green falling defense principal on the with the burden instruction — of defense. courts, finally review concluded: admitted majority misapplies 2. requirement jury A criminal basic fact misun- accessory after the jury agree- is that the must reach trials derstanding temporal rela- its nature submitting practice of ment. The alter- tionship separate as criminal offense— they jury to a not instructed natives accessory crime. nature fact after agreement one must reach on least presumption majority 3. The creates alternative, jury allows return interrelationship and by transactional special guilty nec- verdict of without the proof, an mutuality of causative lack of agreement. essary Broad reforms are respon- accessory equally the fact is after jury agreement available insure co-partici- with the sible in criminal conduct these reforms are ac- such cases. Until pant tem- or —instruction complished, better use of the available poral relationship is immaterial. go assuring jury tools far toward will agreement. currently available Jury engendered with confusion was 4. prosecutor’s charging tools include the or either murder one verdict for discretion, acquittal, jury in- judgment resulting premeditated in admis- murder structions, and, situations, spe- in limited fact accessory after the conduct sion of should uti- cial verdicts. These tools be pre- or prove either or both murder jury lized to mould verdicts based uniformity of murder without meditated agreement, in with the basic re- accord required jury decision —unanimous quirements trials. criminal verdict issue. ignored. message That continues to be have been fact I respectfully dissent. testimony contrary despite his based either fragmentary evidence of on the most participation abetting or aiding both felony murder premeditated murder or casually ac-

by stealing the boots participant. Alter-

quainted party drunken

natively, may completely he innocent crime and the first JONES, Petitioner, Burton Dale action an ac- reprehensible involved cessory fact. The did not after the proper within instructions determine Wyoming, Respondent. STATE of and there is abso- may have been case 92-62. No. añy member lutely nothing this court Wyoming. Supreme Court reliably make that factual deci- can do to jury might done if sion as to what the have June required. The struc- decision had been wrong goes ture of the law we build

direction. notes Truesdell, (Okl. also State v. 620 P.2d 427 identically incorporated This ease law is Cr.1980). Adequate seemingly unani Wyoming accessory into the after the fact support mous validity for the of Bouwk- 6-5-202(a) Wyo.Stat. statute. states: § amp’s theory of defense is established in if, person A anis after the fact Zierlion, the relevant cases. N.E.2d hinder, delay prevent with intent to detection, discovery, apprehension, People Karst, 34, Mich.App. v. detention, prosecution, pun- conviction or 526, (1982)provides N.W.2d the factual ishment of another for the commission of resolution content addressed crime, he renders assistance to the component as a which the should person. have been directed to consider his defense: proposed instruction which had been by Bouwkamp accurately abettor, submitted re To be convicted as an aider and statute, Wyoming possess flected the state of the defendant must either himself law, required specific theory intent to commit the his of defense re sub- participate stantive offense or while lating to his contention admission of knowing co-participant possessed that his what he did and defense that he did not requisite People Triplett, intent. v. participate by assistance or conduct in ei Mich.App. 306 N.W.2d 442 premeditated ther the crime of murder or (1981). Either a defendant’s intent or his felony murder. The case law demonstrates knowledge co-participant that his had the may that an aider or abettor be tried and necessary intent be inferred from principal, convicted Tompkins as a v. Id., circumstantial evidence. [at] State, (Wyo.1985), 705 P.2d 836 cert. de However, 306 N.W.2d 442. a defen- nied, 475 U.S. 106 S.Ct. presence dant’s mere at the scene of a (1986); Lisenby L.Ed.2d 585 v. itself, enough, crime is not and of (1976); Ark. 543 S.W.2d 30 State v. make him an aider and abettor[.] Lashley, 233 Kan. (1983); Bills, People 53 Mich.App. hand, it On other is clear that an (1974), 220 N.W.2d 101 rev’d on other bas accessory after-the-fact is not an aider or es, 396 Mich. 238 N.W.2d 29 abettor ***[.] conversely, any accessory after the

Notes

[******] entirely fact commits an different crime. Bouwkamp’s proposed defense should have Further, it is error to instruct a recognized been and submitted instruc might that a defendant as a tion on that basis for decision. principal See of an offense if he was an ac- * * * Rider, cessory 229 Kan. after-the-fact. (1981); Nordahl, 241; . The distinction between aiders Sullivan, See, however, 185 A.2d 410. abettors and accessories after-the-fact is presence clear, and, facts, always given mere rule United States Zimmerman, (10th 943 F.2d 1204 even less so in this case. Acts under- Cir.