Bearpaw v. State
| Citation | 803 P.2d 70 |
| Decision Date | 07 December 1990 |
| Docket Number | No. 89-214,89-214 |
| Parties | Stan W. BEARPAW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
Leonard D. Munker, State Public Defender and Mike Cornia, Appellate Counsel, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne and Roger C. Fransen, Sr. Asst. Attys. Gen., for appellee.
Before CARDINE, C.J., * and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
This appeal from a second degree murder conviction presents basic questions of an inadequate record, ineffectiveness of trial counsel, and fundamental concerns about the fairness of the trial. We reverse and remand for retrial.
Appellant initially contends:
ISSUE 1
Whether the trial court erred in instructing the jury that they could infer malice from the use of a deadly weapon and that one of the elements of manslaughter was killing without malice, expressed or implied.
ISSUE 2
Whether the trial court's instructions concerning second degree murder and manslaughter impermissibly shifted the burden to the Appellant to prove that the killing was without malice and reckless.
ISSUE 3
Whether there was insufficient evidence for the jury to find the Appellant guilty of second degree murder.
Appellee's initial issues are:
I. Was the evidence sufficient to support the jury's verdict of guilt of second degree murder?
II. Did the trial court correctly respond to questions asked by the jury during their deliberations?
III. Did the trial court err in instructing the jury that malice may be inferred from the use of a deadly weapon?
IV. Did the trial court err in not instructing the jury on the appellant's defense of accident?
V. Was it reversible error to instruct the jury that absence of malice is an element of the lesser included offense of manslaughter?
An incomplete record of the trial was presented for appellate review and supplemental briefing was requested. Appellant's further issues then address:
I. Should the failure of counsel to designate the entire record have any effect on this appeal?
II. Whether the State's inability to provide the entire record is grounds for reversal.
III. Did the Appellant receive effective assistance of counsel?
Appellee then asks:
I. Does the failure of defense counsel to designate the entire transcript of the trial court proceedings for inclusion in the record on appeal and the subsequent unavailability of the transcript of voir dire, opening statements and closing arguments necessitate reversal of Appellant's conviction?
II. Did Appellant have effective assistance of counsel at trial?
We reverse the conviction and remand for retrial on the basis of the inadequate record presented for a determination by this court of whether a fair trial existed and whether effective assistance of counsel was provided.
On March 2, 1989, Stan W. Bearpaw (Bearpaw) shot and killed Rita Bownes (Bownes). The two lived together and Bownes was the mother of their two month old son. 1 Following a day of drinking alcohol, Bearpaw shot Bownes in the right eye with a .22 single action revolver from a distance of two to six feet. The shooting occurred just outside the Wind River Indian Reservation on non-Indian land.
On the day of the death, events followed a rather aimless visiting around and drinking pattern, including consumption of "purple passion" at an acquaintance's house, before returning to the rented residence in Hudson, Wyoming in the late afternoon, early evening period. After they arrived home, the two adults started arguing and the only evidence of what happened is found in the disorganized and confused statement given by Bearpaw at the sheriff's office later that night in Lander, Wyoming. That statement is somewhat in conflict with Bearpaw's version as provided to the parole officer for preparation of a presentence investigation report, but essentially the same general scenario develops.
Bownes was folding clothes and Bearpaw was apparently watching while they engaged in an argument. For whatever reason, Bearpaw got a .22 single action revolver out of the bureau and shot Bownes in the right eye with a single shot from a distance of two to six feet. Bearpaw then held Bownes for a time and then, leaving her on the floor, took the baby and walked out of the house. There were no other persons present at any time during the events.
Since no phone existed in the home, Bearpaw, after walking to an adjoining residence, called the sheriff's office and was thereafter taken to Lander where a late night interrogation commenced. 2 A rambling, inconsistent explanation followed during the early-morning-hour extended interview, which was recorded and transcribed. This interview was then introduced without objection into evidence as a trial exhibit.
Bearpaw was held in jail and a complaint of second degree murder (purposely and maliciously, but without premeditation), W.S. 6-2-104, was filed on March 6, 1989 in the Fremont County Court. An appearance bond of $10,000 was established but never posted. A public defender was appointed for representation. Following a preliminary hearing, Bearpaw was bound over for trial and the information was filed in the district court on April 20, 1989. Arraignment followed on May 3, 1989 when Bearpaw pled not guilty. A pre-trial date of June 21, 1989 and trial date for July 17, 1989 were set by the Fremont County resident district court judge.
In compliance with a pre-trial order, the State filed a comprehensive list of witnesses and exhibits. No filings or motions of any kind were made in behalf of Bearpaw to support or sustain his defense phased in avoidance of the intentional homicide criminal charge.
The pre-trial conference was conducted by the resident district court judge and the case assigned for trial to the other district court judge for the Ninth Judicial District, resident 160 miles away at Jackson, Wyoming in Teton County. The defense at the pre-trial conference, enunciated by defense counsel, was lack of purposefulness in commission. The district court judge inquired:
All right. We have a second degree murder charge. What is the nature of the defense here?
The county attorney responded when the district court asked:
What does the State contend happened here?
As to witnesses, the district court asked:
As the session concluded, the district court asked:
Mr. Bearpaw, do you have any questions?
The next entry in the record, except for an order of district court judge reassignment and Bearpaw's two proposed instructions, is a letter from Bearpaw addressed to the initial district court judge. The letter, dated July 6, 1989, fifteen days after the pre-trial conference and eleven days before trial, stated:
I Stan Bearpaw do not want to go to trial with [Defense Counsel] as my lawyer[.] I do not believe he will even try to prove my innocence. I've been in jail 126 days and maybe talked to him 20 min. in all that time. He either has a soccer game to go to or when he said he would come by he never would. I have nothing against this man but I don't believe he will with all his ability try to prove my innocence. You asked me in court at the arraignment if he was sati[s]factory I said yes cause [sic] I thought he might change but he still leaves me in the dark. I myself know what happened was a auful [sic] accident and I don't feel [Defense Counsel] will try his best in court. This is my life and my future at stake and I don't want to take any unnessary [sic] chances. I would like to have another laywer [sic]. I have met Donna Sears from Sear Law Offices and, would like to request her to take over my case.
/s/ Stan W. Bearpaw
Seven days later and four days before trial, a further letter to the district court judge was written: 3
Today is the first time my lawyer [Defense Counsel] has talked to me in...
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