Bilderback v. State, 99-231.

Citation13 P.3d 249
Decision Date08 November 2000
Docket NumberNo. 99-231.,99-231.
PartiesMichael Howard BILDERBACK II, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane E. Courselle, Director of the Defender Aid Program; and Gordon Ellis and Vaughn Neubauer, Student Interns, for the Defender Aid Program.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Jalie Meinecke, Student Intern, for the Prosecution Assistance Program.


KITE, Justice.

While on parole from various felony convictions, Appellant Michael Howard Bilderback II went on a criminal rampage which ended in the shooting of a Wyoming highway patrolman. A jury convicted him of attempted second-degree murder, use of a firearm while committing the felony of attempted second-degree murder, and concealing stolen property. The trial court sentenced him on each charge and ordered that the sentences be served consecutively. Mr. Bilderback appeals, raising various objections to the fairness of his trial including the claim that his convictions for attempted second-degree murder and use of a firearm in the commission of a felony should have merged for sentencing purposes. We affirm his convictions on all charges. However, we vacate the sentence for use of a firearm in the commission of a felony as constituting double jeopardy because, for the purpose of sentencing, that charge merged with the attempted second-degree murder charge.


Mr. Bilderback presents these issues for our review:

Was trial counsel ineffective and Mr. Bilderback deprived of a fair trial, when counsel failed to request lesser included charges, when there was substantial evidence presented by both prosecution and defense that Mr. Bilderback lacked malice and intent to kill, essential elements of the crime of conviction?
Did the trial court commit per se reversible error when it instructed the jury that it might infer the intent to kill from the use of a weapon, where an unsuccessful attempt was charged?
Did the prosecution commit prosecutorial misconduct when it elicited testimony regarding Mr. Bilderback's request for counsel to create an inference of guilt?


The trial court violated the prohibitions against double jeopardy found in the Fifth Amendment to the United States Constitution and Article One, Section Eleven of the Wyoming Constitution when it ordered that sentences for attempted second degree murder under Wyoming Statutes § § 6-1-301(a)(i) and 6-2-104 and use of a firearm while committing a felony under Wyoming Statute § 6-8-101(a) run consecutively when the use of a firearm and the murder attempt were the very same act[.]

Appellee State of Wyoming rephrases the issues as follows:

I. Was Appellant denied effective assistance of counsel?
II. Did the district court err in instructing the jury that it might infer the intent to kill from all the facts and circumstances of the case, including the use of a deadly weapon in a deadly or dangerous manner?
III. Was an impermissible comment made upon any invocation of Appellant's right to silence?
IV. Did the district court violate Appellant's double jeopardy right against multiple punishments for a single offense when it imposed cumulative sentences for attempted second degree murder and for the use of a firearm in the commission thereof?

After committing two armed robberies and stealing two automobiles in Nebraska, Mr. Bilderback fled, driving westward through Wyoming. Accompanied by a friend, he stopped for only food, gas, and restrooms, getting no sleep for several days. He intended to go to the state of Washington. At some point during the trip, he removed a .25 caliber semiautomatic pistol from his jacket and placed it beneath his leg on the driver's seat. At about eight o'clock in the morning on Monday, January 11, 1999, Wyoming Highway Patrolman Howard Parkin clocked Mr. Bilderback's car traveling ninety miles per hour as it approached Douglas. He turned on his emergency lights and siren and followed the car. Mr. Bilderback pulled off the interstate into the right emergency lane, stopped his vehicle, and rolled down the driver's window. Officer Parkin, who was wearing his uniform and badge, stopped behind Mr. Bilderback's car, got out of his car, walked to Mr. Bilderback's car, and leaned forward to speak to the driver. Mr. Bilderback turned toward the window, pointed the pistol at Officer Parkin, and shot the officer point blank in the face. Officer Parkin fell to the ground, drew his gun, and fired at Mr. Bilderback's car as it drove away. Mr. Bilderback left the interstate at the next exit and drove north on State Highway 59. He was later apprehended after being chased on State Highway 59, leaving the road, and driving across the prairie until his car got hung up on a railroad track. Mr. Bilderback threw his gun from the moving vehicle before the chase ended. At the trial, Mr. Bilderback denied that he shot Officer Parkin by accident or involuntarily.

A. Ineffective Assistance of Counsel

First, Mr. Bilderback complains that he was denied his constitutional right to effective assistance of counsel because his attorney failed to request instructions on attempted voluntary manslaughter and aggravated assault and battery as lesser-included offenses. The standard of review we apply to claims of ineffective assistance of counsel is set forth in Sorensen v. State, 6 P.3d 657, 660 (Wyo.2000), where we recognized that appellate courts should be extremely reluctant to find an appellant's trial counsel ineffective.1 We do not evaluate the counsel's performance from a perspective of hindsight, and there is a strong presumption that the counsel made all decisions within the bounds of reasonable professional judgment. Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992); Gist v. State, 737 P.2d 336, 342 (Wyo.1987). Here, the effectiveness of Mr. Bilderback's counsel is evidenced by the fact that his client was charged with attempted first-degree murder, but was convicted of only the lesser offense of attempted second-degree murder.

Although we cannot determine from the record what instructions were offered or rejected,2 we can conclude that, even if it had been offered, the trial court was not required to give an attempted voluntary manslaughter instruction because the evidence did not support such an instruction. A lesser-included offense instruction must be given only when there is evidence which would justify the trier of fact in acquitting the accused of the greater offense and convicting him on the lesser offense. Carey v. State, 984 P.2d 1098, 1101 (Wyo.1999). An attempted voluntary manslaughter instruction would have been appropriate only if Mr. Bilderback had claimed some other reason for his actions other than the malicious action contained within the attempted second-degree murder elements. Certainly, his claim that he was frightened by unknown persons in Nebraska could not provide justification for shooting a law enforcement officer who stopped him for speeding. On the claim that the aggravated assault and battery instruction should have been given, we conclude it is not a lesser-included offense of attempted second-degree murder. If the lesser offense includes an element which the greater offense does not, it is not a lesser-included offense. State v. Keffer, 860 P.2d 1118, 1134 (Wyo.1993). Aggravated assault and battery can be charged under four separate paragraphs of Wyo. Stat. Ann. § 6-2-502(a) (LEXIS 1999). Paragraph (i) requires serious bodily injury, paragraphs (ii) and (iii) require use or threat of use of a deadly weapon, and paragraph (iv) requires bodily injury to a pregnant woman. Attempted second-degree murder does not have these elements. Wyo. Stat. Ann. §§ 6-1-301(a), 6-2-104 (LEXIS 1999). We conclude the trial court would not have been justified in giving either suggested instruction and the counsel's representation cannot be found ineffective under the applicable standards.

B. Inference Instruction Was Proper

The trial court gave the following instruction to which Mr. Bilderback now objects:

The jury may infer the existence of premeditation, malice, and the intent to kill from all the facts and circumstances of the case. Specifically, an inference of malice, or an inference of the intent to kill, though not an inference of premeditation, may arise from the use of a deadly weapon in a deadly or dangerous manner. Such inferences are permissive, rather than mandatory. In other words, the jury is not required to make such inferences.

This instruction was proper and met the standard set forth in Harley v. State, 737 P.2d 750, 754-56 (Wyo.1987), which followed the United States Supreme Court's decision in Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The instruction made it clear the inference was permissive only. The inference was a rational one based on common sense; e.g., malice can be inferred from the use of a deadly weapon in a deadly or dangerous manner. The facts of this case make that inference imminently reasonable. Mr. Bilderback was a fugitive who was driving a stolen car and had a pistol positioned under his leg. When stopped for a traffic violation, he shot the officer in the face without provocation or warning, and then he fled. Under these facts and circumstances, it was reasonable for the trial court to instruct the jury it could conclude the defendant acted with malice and intent to kill.

C. No Improper Comment on Mr. Bilderback's Exercise of His Right to Counsel

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