Cullin v. State

• Decision Date: 26 May 1977
• Docket Number: No. 4674,4674
• Citation: 565 P.2d 445
• Parties: Diana Kaye CULLIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 445

565 P.2d 445

Diana Kaye CULLIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4674.

Supreme Court of Wyoming.

May 26, 1977.

Gerald M. Gallivan, Director, Wyoming Defender Aid, and Brian C. Bjorndahl, law student, Laramie, signed the brief and Brian C. Bjorndahl, appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Frank R. Chapman, Asst. Atty. Gen., Cheyenne, signed the brief and Frank R. Chapman, appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The defendant-appellant was found guilty of second degree murder by a jury and sentenced to a penitentiary term of not less than 25 nor more than 35 years for the shooting death of Ronald Wayne Palmer on July 12, 1975. She raises several issues, rearranged in the order we shall dispose of them:

1. Was the court's instruction on provocation proper in the light of the evidence?

2. Was the court's instruction on intent proper?

3. Was the trial judge in error in refusing offered defense instructions covering the so-called Eagan rule, conduct and demeanor of the defendant after the crime and that if conclusions of both guilt and innocence can be reasonably drawn from the evidence, the defendant should be acquitted.

4. Was it prejudicial error to admit testimony regarding a polygraph examination, even though by stipulation and without a special instruction?

5. Was the evidence sufficient to show beyond a reasonable doubt that the defendant did not act in self-defense and sustain a verdict of second-degree murder?

We will affirm.

The defendant and the decedent, Ronald Wayne Palmer, had been living together as man and wife, though not married, for about two years prior to the homicide for which defendant was convicted and sentenced. Their relationship had become somewhat strained and on the evening preceding the date defendant murdered him, the victim Palmer and she, according to her testimony, had engaged in a heated argument.

The testimony of the defendant is the only source of evidence to establish events immediately preceding what accelerated into critical facts during the evening of July 11 and the early morning hours of July 12, 1975, finally ending in Palmer's death. According to her, after arrival at their mobile home at Powell, Wyoming, following Palmer's day's work, he consumed a quantity of whiskey and announced he was going to a downtown bar. Defendant, an entertainer, offered to take him, saying she needed the car to attend a singing engagement at Lovell, Wyoming. Palmer refused the offer, took the car keys from her purse and went to the bathroom, carrying his handgun and holster. While he was there, defendant went and got a spare set of car keys she secretly kept and told her small children by a previous marriage, living with them, to slip down to the other end of the mobile home park lane. She picked up the youngsters and drove to the Powell police station to press an assault charge she was urging against Palmer, arising out of a "family" fight which arose between them a few days previous.

From that point on, other persons are drawn into the scenario of events that transpired. At that juncture, their testimony begins to conflict with the story told by the defendant in her defense. At such a point, we follow the appellate practice of accepting as true the evidence favorable to the prosecution, leaving out of consideration entirely evidence of the unsuccessful defendant in conflict therewith and giving evidence of the State every favorable inference which may be reasonably and fairly drawn. Dryden v. State, Wyo.1975, 535 P.2d 483; Shafsky v. State, Wyo.1974, 526 P.2d 60; Bentley v. State, Wyo.1972, 502 P.2d 203; Sims v. State, Wyo.1972, 496 P.2d 185; Harris v. State, Wyo.1971, 487 P.2d 800; 3 West's Wyoming Digest, Criminal Law, Key No. 1144.13(3). The evidence will be treated in that manner whenever mentioned in this opinion.

The radio dispatcher on duty at the police station when defendant arrived, testified that defendant, in an upset and nervous condition, told her that Palmer had a gun and was going drinking. The dispatcher also testified that defendant said she also had a gun and would shoot Palmer if he came after her, since she had been informed she had a right to defend herself.

After assuring herself that Palmer was not at home, she returned to pick up some clothes for the children, including their shoes, left in the hasty departure. She claimed $120.00 of her money was missing. She found an empty .357 handgun holster. The weapon was not on decedent at time of the shooting and was later recovered from where it had been hidden in the springs of a couch in the mobile home.

Appellant left and, in passing Clyde's Bar, saw the truck belonging to a friend of Palmer's, so stopped to see if Palmer was there, as well, purportedly to recover her $120.00. He was there playing pool with a friend. She asked for the money; according to her, he advised he would give her the money if she would give him the car. Her planned trip to Lovell never materialized because defendant remained at Clyde's, where she sang a 45-minute set with the band. Janis Fritz, Marilyn Montz, with her husband, and Jennie Anderson came in about 11:30 p.m. Palmer started to talk with Janis. Defendant told Janis, "(t) hat's my husband, stay away from him!" Palmer asked Janis to dance which she refused because of the warning. Defendant then returned and said, "I told you to stay away from my husband." Palmer turned and said, "I'm not your husband, you fat son-of-a-bitch. Get away and leave me alone." They argued, a blow was struck by one or the other; Palmer's drink was spilled; defendant kicked at Palmer, called him a son-of-a-bitch and asked someone to "call the cops, Wayne just hit me in the stomach, I am pregnant." She was, in fact, not pregnant. After Palmer told her to go ahead and call the cops and to others present said, "she is just jealous," defendant blurted, "I will kill him, I will kill them both."

Decedent left the bar about midnight. Defendant told a customer with whom she was dancing, "That's the last time he will ever lay a hand on me." Defendant then went looking for Palmer, in and out of various bars. At the Pioneer, she learned that he and Janis had been there but had left together. Defendant returned to Clyde's, angrily grabbed Jennie Anderson, who had been with Janis, dragged her into the ladies' restroom and wanted to know about Janis.

Defendant went back to the mobile home, picked up a .22 revolver which she either placed on or under the car seat and drove off, claiming she was looking for a gas station. As she was driving slowly past King's Inn, she saw Palmer registering and Janis in a waiting vehicle.

The motel manager testified that at about 1:45 a.m. on July 12, he was awakened by Palmer wanting to register for a room for two. Palmer, with money in hand, suddenly turned and went out and the manager in a matter of seconds heard two shots in rapid succession almost simultaneously; he at once went out and approached a car only about 12 feet away, where he observed a man with his legs hanging out and upper torso in the car under the steering wheel. Defendant was sitting in the right-hand seat, door closed. The manager asked her, "Did you shoot that guy." She replied, "I didn't mean it. I didn't mean it." The car with Janis had been driven off when defendant drove up.

The police arrived shortly thereafter. Palmer, not yet dead, was taken to the Powell hospital and from there to a Billings, Montana hospital, where he died of a .22 bullet entering his head, directly between the eyes, glancing off the inside of his cranium and spending itself in the back of the brain, from which, during an autopsy, it was recovered. Defendant told police at the scene, "I shot him, but I didn't want him to die." Other facts will be related as they appropriately rise for discussion during the course of this opinion.

The defendant challenges the court's instruction on provocation as erroneous and prejudicial, in the light of the evidence, the defendant asserting that there was no evidence produced by the State by which the jury could find that defendant was the aggressor. The questioned instruction is as follows:

"You are instructed that the law does not permit a person to voluntarily seek or invite a combat in order that he may have a pretext to take the life of his assailant. The right of self-defense does not imply the right to attack, and it will not avail in any case where the accused voluntarily and of his own free will enters into and continues it. In this case if you believe from the evidence beyond a reasonable doubt that the Defendant voluntarily and of her own free will entered into and continued the encounter in question, until she fatally shot the deceased, then you would have no right to acquit the Defendant on the grounds of self-defense."

Defendant's testimony was that when she saw Palmer in the motel, she stopped, got out of the car, went into the motel office and said, "This is my husband. Why are you renting a room with another woman?" She said she added as she went out, "(h)ave fun." It is her version that when she got into the car, got the keys in the ignition, Palmer was coming after her, she tried to roll up the window, he said, "I am going to kill you, you bitch. You will never embarrass me again," he came into the car, with his body pressed her into the corner on the passenger side and started choking her until her tongue was hanging out, her breath was almost gone and her eyes hurting. It was then she related she was barely able to grope for the gun, pull it up and shoot him without aiming.

The difficulty with her story is that the motel manager testified she never came into the motel nor said what she claimed to have said and...