406 P.3d 286 (Wyo. 2017), S-16-0175, Schmuck v. State

Docket Nº:S-16-0175, S-17-0037
Citation:406 P.3d 286, 2017 WY 140
Opinion Judge:FOX, Justice.
Party Name:Terry Laverne SCHMUCK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney:Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden. Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delica...
Judge Panel:Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Case Date:November 30, 2017
Court:Supreme Court of Wyoming
 
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Page 286

406 P.3d 286 (Wyo. 2017)

2017 WY 140

Terry Laverne SCHMUCK, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

Nos. S-16-0175, S-17-0037

Supreme Court of Wyoming

November 30, 2017

Page 287

[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Appeal from the District Court of Fremont County, The Honorable Norman E. Young, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

OPINION

FOX, Justice.

[¶1] Appellant, Terry L. Schmuck, appeals his conviction of attempted second-degree murder. Mr. Schmuck claims that the district court improperly instructed the jury regarding sudden heat of passion, the definition of " malice" in the context of first-degree murder, the definition of " maliciously" in the context of second-degree murder, an aggressor's right to use self-defense, and the duty to retreat before asserting the right of self-defense. We affirm.

ISSUES

[¶2] Mr. Schmuck raises one issue: Did the district court's failure to properly instruct the jury deprive Mr. Schmuck of a fair trial? For clarity, we divide his issue into six separate issues, restated as follows: I. Did the district court err when it:

A. failed to instruct the jury that the State must prove beyond a reasonable doubt the absence of a sudden heat of passion in order for the jury to find Mr. Schmuck guilty of first-degree or second-degree murder?

B. failed to instruct the jury that " malice" for purposes of first-degree murder means the defendant acted intentionally without legal justification or excuse and with hatred, ill will, or hostility?

C. for the purposes of second-degree murder:

1. provided the jury with a definition of both " malice" and " maliciously" ?

2. failed to define " recklessly" or " recklessly under circumstances manifesting an extreme indifference to the value of human life" ?

D. used the term " provokes" to instruct the jury on an aggressor's right of self-defense?

E. instructed the jury that Mr. Schmuck had an absolute duty to retreat before using deadly force?

II. Did the cumulative error of two or more improper jury instructions deprive Mr. Schmuck of his right to a fair trial?

FACTS

[¶3] Mr. Schmuck struck his wife, Cindy Schmuck, in the head with a hatchet. The blow fractured her skull and caused an underlying hemorrhage into the brain. The State charged Mr. Schmuck with one count of attempted murder in the first degree. The trial court also instructed the jury on the lesser included offenses of attempted murder in the second degree and attempted voluntary manslaughter.

[¶4] In the months preceding the incident, Mr. and Mrs. Schmuck's fourteen-year marriage had been deteriorating, and they had already discussed the terms of a divorce. An argument eleven days earlier in the parking lot of a horse arena, however, was the first of several events that culminated in Mr. Schmuck's assault. Mrs. Schmuck testified that, in the front seat of their parked car, Mr. Schmuck " drew back and almost punched me in the face" and " told me he was going to kill me." 1 After this exchange, Mr. Schmuck exited the car and walked away. Mrs. Schmuck called law enforcement and

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eventually obtained an Ex Parte Order of Protection which, among other things, prohibited Mr. Schmuck from contacting Mrs. Schmuck or entering the family home. Mrs. Schmuck also instructed their two children, JES and CAS, to refrain from communicating with their father.

[¶5] On the morning of May 28, 2015, Mr. and Mrs. Schmuck appeared in circuit court for a hearing on the protection order. Mrs. Schmuck's lawyer could not attend, however, and the court continued the hearing for two weeks. Mr. and Mrs. Schmuck could not agree upon a visitation arrangement at this time and, thus, Mr. Schmuck would be unable to see his children until the court revisited the matter at the rescheduled hearing two weeks later.

[¶6] After the hearing, Mrs. Schmuck returned with the children to the family home, while Mr. Schmuck went to see his lawyer, who gave him a copy of the divorce paperwork that Mrs. Schmuck had recently filed. Upon reading Mrs. Schmuck's requested divorce terms, Mr. Schmuck became upset. Mrs. Schmuck was asking for sole custody of the children, supervised visitation for Mr. Schmuck, spousal support, and, according to Mr. Schmuck, " all the property." Mr. Schmuck stated that these were not the terms to which they had previously agreed.

[¶7] That night, as Mr. Schmuck re-read the divorce paperwork, he became increasingly agitated. Mr. Schmuck explained in a police interview that Mrs. Schmuck " want[ed] pretty much everything, and full custody and sole custody and everything, and I lost it." Mr. Schmuck stated that Mrs. Shmuck was " going for everything," she would not text him back to discuss it, and everything " built up." Mr. Schmuck wanted " just an acknowledgement" from Mrs. Schmuck that she had received his texts, but she " wouldn't even give [him] that after fifteen years [of marriage]."

[¶8] Mr. Schmuck therefore decided to drive to the family home to " confront" Mrs. Schmuck. As he walked out the door to the car, he picked up a hatchet that he used for camping and hunting. Mr. Schmuck testified that he grabbed the hatchet because: " I was just pissed off. I— I really don't know. I was— I just wasn't thinking." He threw the hatchet on the floorboard on the passenger side of the car and started driving to the family home approximately twenty miles away. Mr. Schmuck testified that he calmed down as he drove, but still continued to the house so he could talk to Mrs. Schmuck about the divorce.

[¶9] Once he arrived, Mr. Schmuck parked the car approximately 50-75 feet down the road from the home. Taking the hatchet with him, Mr. Schmuck climbed over a wooden fence into the yard. He proceeded to the phone box on the exterior wall of the house and used the hatchet to cut the phone lines into the home. Meanwhile, inside, the children were asleep. Mrs. Schmuck was in her bedroom talking on the landline telephone to a friend when she heard their dogs barking outside. When Mr. Schmuck cut the lines, her telephone went dead. Mrs. Schmuck noticed that the dogs were still barking, so she locked all the doors and turned on the back porch light. After checking on the children, Mrs. Schmuck retrieved her .17 HMR handgun— a pistol they kept in the house for shooting " coyotes or racoons or whatever vermin happen to be floating around the house" — and retreated to her bedroom, where she grabbed her tablet computer to send an online message to her friend for help. Moments later, she heard a crash. Mrs. Schmuck testified: " I knew right then that something was horribly, horribly wrong. And I grabbed the pistol. I went around the end of the bed as quickly as I could and got to the [bedroom] doorway."

[¶10] The crash that Mrs. Schmuck had heard was Mr. Schmuck— with hatchet in hand— breaking in the front door. Once inside the home, Mr. Schmuck yelled out at Mrs. Schmuck.2 Mr. Schmuck proceeded through the kitchen and was nearing Mrs.

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Schmuck's bedroom when Mrs. Schmuck, still in the doorway, aimed her pistol at him and pulled the trigger three times. But, to her surprise, the gun was not loaded. Mr. Schmuck testified that once Mrs. Schmuck started " shooting" at him, he pushed her away, and punched her while still holding the hatchet " up by the head, on the handle" in his punching hand. Mr. Schmuck testified that Mrs. Schmuck then fell backwards and laid unconscious for 10-15 seconds.

[¶11] Mrs. Schmuck had no memory of Mr. Schmuck striking her. When she regained consciousness, she was bleeding extensively and in need of medical attention, and Mr. Schmuck agreed to take her to the hospital. In the hectic minutes before leaving, Mr. Schmuck threw the hatchet into the basement to hide it. JES testified that Mr. Schmuck flipped on the light in her bedroom and told her, " [t]his is what we wanted." 3 Mrs. Schmuck instructed JES to contact the sheriff's department as soon as they left.

[¶12] At the hospital, a CT scan revealed that Mrs. Schmuck had a depressed skull fracture with an underlying hemorrhage into the brain. Because of the severity of her injuries, the hospital transported her by air to a trauma care facility. There, a neurosurgeon performed surgery and...

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