Benjamin v. State

• Decision Date: 25 October 2011
• Docket Number: No. S–10–0204.,S–10–0204.
• Citation: 264 P.3d 1,2011 WY 147
• Parties: Leah D. BENJAMIN, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

264 P.3d 1

2011 WY 147

Leah D. BENJAMIN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–10–0204.

Supreme Court of Wyoming.

Oct. 25, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel. Argument by Ms. Olson.Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General; Stewart M. Young, Special Assistant Attorney General. Argument by Mr. Young.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] Leah D. Benjamin was convicted of second degree murder for the shooting death of her estranged husband. She appeals that conviction. We will affirm.

ISSUES

[¶ 2] Ms. Benjamin presents four issues:

1. Did the trial court err in not dismissing juror Blaney?

2. Did the trial court err in refusing Appellant's proposed jury instructions G and H?

3. Did the trial court err in denying Appellant's post-trial motion for judgment of acquittal?

4. Did reversible prosecutorial misconduct occur?

FACTS

[¶ 3] On Sunday, May 3, 2009, Ms. Benjamin shot and killed the victim, Donald Benjamin, at her home in Buffalo, Wyoming. The relevant events of that day began at 9:41 a.m., when Ms. Benjamin sent a text message to her husband, from whom she was separated and was soon to be divorced, asking whether he was coming to pick up their daughter, K.B., to take her fishing. Ms. Benjamin knew that K.B. was at a friend's house, but proceeded to leave numerous voicemails and text messages for Mr. Benjamin stating that K.B. was “sitting here waiting for you,” but telling him not to call K.B. because she did not have her phone. When Mr. Benjamin called to say he was on his way, Ms. Benjamin told him that K.B. no longer wanted to go fishing. Mr. Benjamin arrived a few minutes after this conversation, and died approximately an hour later.

[¶ 4] In their briefs, Ms. Benjamin and the State present starkly contrasting versions of the Benjamin relationship. Ms. Benjamin portrays herself as the victim of domestic abuse, while the State portrays her as more the aggressor than the victim. The long record of this eight-day trial includes evidence to support both versions. Most of the details are not relevant to this appeal, however, and will be presented here in summary fashion.

[¶ 5] Ms. Benjamin married Mr. Benjamin in 1999. She had four children from previous relationships, and he had three. They also had a daughter together. The family lived in Hulett, Wyoming, until 2005, when the couple separated and Mr. Benjamin moved to Buffalo, Wyoming. Ms. Benjamin moved to Buffalo in 2006, apparently hoping to reconcile with Mr. Benjamin, although the two continued to live separately. In February of 2009, Mr. Benjamin filed for divorce. Although Ms. Benjamin had signed the divorce settlement agreement, the divorce had not been finalized by the time of Mr. Benjamin's death. Several witnesses agreed that Ms. Benjamin was extremely upset about the pending divorce.

[¶ 6] On Saturday, May 2, 2009, the Benjamin's daughter arranged to spend the weekend with a friend in Buffalo. Although Ms. Benjamin knew their daughter would not be home, she began contacting Mr. Benjamin, telling him their daughter would be waiting at home on Sunday for him to take her fishing. During Saturday afternoon and Sunday morning, Ms. Benjamin made twenty-one telephone calls to Mr. Benjamin, sent ten text messages, and left five voicemail messages. At 10:17 a.m. on Sunday, Ms. Benjamin left the following message:

Don, [K.B. is] sitting here waiting for you. If you don't want to take her fishing at least let us know and I'll go take her to do something OK[?] I told her you were going to take her cause you guys needed time together too OK? I tried to tell you that last night to have you call me but you didn't ... I don't know whatever.

[¶ 7] At about 10:30 on Sunday morning, Mr. Benjamin telephoned Ms. Benjamin to confirm that he was on his way to her house to pick up their daughter. Ms. Benjamin responded that their daughter no longer wanted to go fishing, expecting that Mr. Benjamin would “turn around and leave.” However, Mr. Benjamin arrived at Ms. Benjamin's house a few minutes later. According to Ms. Benjamin, the two sat in the living room and talked. The conversation started calmly, but Mr. Benjamin became increasingly angry, and after about an hour, Ms. Benjamin went into the bathroom to get away from him.

[¶ 8] Ms. Benjamin's testimony was that as she left the bathroom, Mr. Benjamin was standing in the bedroom, near the bathroom door. He appeared angry, and approached her. After that, she explained, “[e]verything happened so fast” that she could not recall the exact sequence of events. She recalled that Mr. Benjamin shoved her into the shower door. She hit the shower door with her elbow and, she said, broke the glass door.

[¶ 9] Ms. Benjamin testified that she ran from the bathroom into her bedroom and grabbed her pistol from under her bed. Holding the pistol, she told Mr. Benjamin to leave, and he cursed at her. Then he “lunged” at her and grabbed at the pistol. She shot. Although she could remember shooting only once, she acknowledged that Mr. Benjamin was shot three times. The next thing she recalled was lying on the floor near the bed with Mr. Benjamin on top of her. She threw the pistol behind the nightstand, pushed Mr. Benjamin off of her, and got up from the floor.

[¶ 10] Unknown to Ms. Benjamin, her eighteen-year-old son was also in the house, and he came into the bedroom as Ms. Benjamin was getting up from the floor. Her son helped her up and into the kitchen, then checked on Mr. Benjamin and determined that he was dead. Ms. Benjamin gave her son several thousand dollars she had been saving, and told him to pick up his sister in Buffalo and take her to a relative's home in Gillette “to be safe.” After he left, Ms. Benjamin talked on the telephone with some of her children and other people. She sent text messages to her children.¹ She cleaned up glass from the broken shower door. A text message from Ms. Benjamin to her son indicates that, at 5:00 p.m. that evening, she went to a movie in town. Eventually, at the urging of her sons, she drove herself into town and went to the police station.

[¶ 11] She turned herself in at about 4:30 in the morning on Monday, May 4, approximately sixteen hours after shooting Mr. Benjamin. The police officer recorded the interview. In the recording, Ms. Benjamin sounded very emotional and, occasionally, nearly incoherent. She eventually told the police officer that Mr. Benjamin was dead at her home, and that she had shot him around noon the previous day. Because Ms. Benjamin lived outside the town limits, the policeman dispatched officers from the Johnson County Sheriff's department to her home. They found Mr. Benjamin on the floor of Ms. Benjamin's bedroom between the bed and the wall, and confirmed that he was dead.

[¶ 12] The officers found a relatively small amount of blood at the scene given the gravity of Mr. Benjamin's wounds. There was a small amount of blood on a floor heating vent, on some boxes against the wall, and on a mirror. Upon further inspection, the officers found that the boxes had been deliberately moved and stacked to cover up a small amount of blood on the wall. The officers also found a bloody towel on the bed and later found fifteen damp, freshly washed towels in the washing machine. They also found fourteen dry towels in the dryer.

[¶ 13] Ms. Benjamin was charged with first degree murder. Based on the evidence summarized above, the State argued at trial that Ms. Benjamin had purposely lured Mr. Benjamin to her home under the false pretense that their daughter was waiting for him. It argued that this was a premeditated, purposeful, and malicious effort to harm Mr. Benjamin.

[¶ 14] The State also presented evidence that contradicted Ms. Benjamin's version of the shooting. There was, for example, forensic evidence that there was no gun powder residue on Mr. Benjamin's hands or clothing, indicating that he had been shot at a distance of several feet, not while grabbing the pistol and trying to turn it on her as she had testified. There was also forensic evidence that the shower door was shattered by a bullet, contrary to Ms. Benjamin's testimony that it was broken by her elbow.

[¶ 15] Anticipating Ms. Benjamin's claim that she was a victim of domestic abuse, the State offered testimony indicating that Ms. Benjamin was actually the aggressor in the relationship. Witnesses had observed her initiating confrontations with Mr. Benjamin, and slapping or punching him. One witness testified that Ms. Benjamin “was never afraid to confront him on anything. She was never afraid to be around him.” Other witnesses testified that Ms. Benjamin had, on at least two occasions, initiated physical confrontations with a woman Mr. Benjamin had been dating.

[¶ 16] Several witnesses also testified that Ms. Benjamin telephoned Mr. Benjamin with unusual frequency. One acquaintance testified that Ms. Benjamin “called him and called him and called him all of the time,” and a former roommate of Mr. Benjamin estimated that she sometimes called up to thirty times per day. Evidence also showed that Ms. Benjamin had been recording many of her telephone conversations with Mr. Benjamin, although her recording device recorded only his side of the conversation, not hers. Based on these arguments and this evidence, the State asked the jury to convict Ms. Benjamin of first degree murder.

[¶ 17] Ms. Benjamin never denied that she had shot Mr. Benjamin, but asserted that she had done so in self-defense. She admitted that she misled Mr. Benjamin about their daughter waiting at home to go fishing with him. She explained that she never expected him to show up, however, and was calling only to “make...