Bouwkamp v. State

Decision Date02 June 1992
Docket NumberNo. 90-57,90-57
PartiesMarvin Jay BOUWKAMP, II, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, David Gosar, Appellate Counsel, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Hugh Kenny, Sr. Asst. Atty. Gen., Cheyenne, for appellee.


GOLDEN, Justice.

Marvin J. Bouwkamp appeals from his conviction of first degree murder in the death of Lucien Millox on May 25, 1989, near Buffalo, Wyoming. Bouwkamp received a sentence of life in prison. He was tried on both premeditation and felony murder theories, and the jury returned a general verdict of guilty. We affirm Bouwkamp's conviction. The state's premeditation argument, however, does not adequately distinguish the elements of first and second degree murder. The court will comment on this distinction to provide guidance in this critical area of the law.

Bouwkamp presents three issues in his appeal:

I. By refusing to give appellant's theory of the case instruction to the jury, the trial court violated his constitutional right to due process.

II. Instruction 15 should not have been given in this case, and should no longer be the Wyoming rule of law, because:

1] the rationale supporting the felony murder doctrine is not served by this instruction;

2] a strict application of this rule led to a harsh and incorrect verdict in this case; and

3] this rule has the effect of imposing punishment beyond the defendant's culpability.

III. There is insufficient evidence to support the verdict and therefore the trial court erred in not entering a judgment of acquittal for the appellant.

The state responds to these three assertions, rephrasing them as:

I. The trial court properly refused to instruct the jury regarding a crime with which appellant was not charged.

II. Instruction 15 was a proper statement of the law and was supported by the facts in this case.

III. There was sufficient evidence to support the verdict.


In the early morning hours of May 25, 1989, Lucien Millox, a 63-year-old Buffalo area ranch hand, was savagely battered and left to die at a location north of Buffalo known as the Rock Creek interchange. The beating took place on the roadway, and Millox was then stripped partially naked and thrown over a concrete barrier and out of the sight of travellers on the road; he died an hour or two later from brain swelling caused by multiple blunt trauma. On May 26, 1989, a local farmer noticed a large amount of dried blood on the road and a blood trail leading to and apparently over the barrier and stopped to investigate. Following the blood trail he discovered the body, which he immediately reported to the Johnson County sheriff's office. Millox's face was so badly battered that the body was unrecognizable, and fingerprints were needed to identify him. The Johnson County sheriff's office investigated the homicide with assistance from the Wyoming Division of Criminal Investigation and the Wyoming State Crime Lab.

Millox was last seen leaving Buffalo with Bouwkamp and Bouwkamp's employee, D.J. Lennick, after the bars closed early on May 25, 1989. Bouwkamp and Lennick first encountered Millox in a Buffalo bar on the evening of May 24. Bouwkamp, Lennick and Stagner, another employee, had come into Buffalo after work to drink beer and play pool; the three men were staying in the area while building a pole barn a short distance outside of Buffalo. Initially, they went to the 21 Club; it was there they met Millox. Stagner left the 21 Club and crossed the street to the Buffalo Club where a woman he knew was tending bar. Some time later, Lennick and Millox got into a dispute which was resolved without violence. Bouwkamp claimed that Millox pulled a knife on Lennick during this confrontation, but others present did not see one. At Bouwkamp's suggestion, Lennick also went to the Buffalo Club where he remained until it closed.

Some time before the 21 Club closed Bouwkamp and Millox struck up a conversation at the bar and bought each other Bouwkamp admitted he was present when Millox was killed, but claimed he had nothing to do with the killing. In Bouwkamp's version of the subsequent events, the three men left Buffalo in Bouwkamp's truck, with Bouwkamp driving, Millox riding with him in front, and Lennick lying in back on the flatbed. They looked for the party, but could not find it. Bouwkamp testified that after slowly driving a couple of miles out of town while searching for the party, he stopped the truck at the Rock Creek interchange at Millox's request so that Millox could relieve himself. Lennick climbed off the truck and Millox immediately attacked Lennick, again pulling a knife, which Bouwkamp was forced to wrestle from him. Lennick struck Millox several times during this struggle. Bouwkamp testified that, although words were still being exchanged, he believed the incident was over and the other two were under control, and he walked up the ramp to the interstate above to orient himself. However, as he returned he saw the other two exchange blows, Millox fall to the ground, and Lennick stomp on Millox's face.

drinks. Millox paid for drinks from a pile of bills he had placed on the counter in front of him. When the bar closed Millox asked Bouwkamp for a ride home. Bouwkamp, followed by Millox, went to the Buffalo Club to get Lennick; it was there that Bouwkamp heard about an after-hours party. Millox claimed he knew where to find the party and offered to guide Bouwkamp there. The three left Buffalo in Bouwkamp's shop truck. Millox was killed shortly thereafter.

Bouwkamp testified he then tried to pull Lennick off Millox, but when he grabbed Lennick from behind, the younger and stronger man simply shrugged him off, flinging him to the ground. Lennick, who was intoxicated and in a rage, then threatened Bouwkamp as well, until finally recognizing him and calming down. After calming Lennick, Bouwkamp knelt and checked Millox's condition. He could see that Millox was badly battered and could not find a pulse, leading him to believe that Millox was dead.

Bouwkamp admitted that he decided to attempt to cover up the killing. He and Lennick partially stripped Millox and took his knife, checkbook, watch and belt buckle and some of his clothing, planning to destroy these items to cover up the victim's identity and their involvement in his death. They then dumped what they believed was a dead body over the barrier at the side of the road and tried to remove evidence of their presence from the crime scene. Bouwkamp recalled trying to hide next to his truck during this time when a vehicle drove by. Bouwkamp testified that he did these things out of shock, fear of what would happen to him because he was on probation for a felony car theft, and a desire to protect Lennick.

At about the time the murder occurred, the same farmer who subsequently discovered the body drove through the crime scene as he returned home from a bull sale in South Dakota. He saw what was later identified as Bouwkamp's vehicle, a flatbed truck with Montana plates and a missing taillight, parked in the road under the interstate at the interchange. He also observed a man in a Stetson type hat crouched alongside the truck, apparently hiding his face from view. He did not see anyone else and thought at the time the man might have been relieving himself. He reported this observation to investigators after he discovered the body.

Bouwkamp and Lennick placed Millox's clothing and some of the bloodstained clothing they had been wearing in plastic bags, which they hid in the travel trailer they stayed in at the jobsite. They finished the barn the following day, packed up and returned to their homes in Billings, Montana. Lennick then took Millox's personal items and all the clothing the two had gathered, except for Bouwkamp's boots, from the trailer. He burned the clothing, but gave Millox's knife, watch and belt buckle to his father, apparently after his father asked for them in order to turn them over to Lennick's attorney.

Investigators with a search warrant seized Bouwkamp's truck and travel trailer in Billings. Lennick was arrested on May Codefendant Lennick pled guilty to first degree murder before trial and received a life sentence. He testified at Bouwkamp's trial, although he was unable to recall much about the incident apparently because of what was described as an alcoholic blackout. Bouwkamp testified on his own behalf. The jury returned a general verdict of guilty of murder in the first degree.

29, 1989, and Bouwkamp turned himself in to authorities the following day. Investigators also received Millox's knife from Lennick's attorney, and his watch and belt buckle from another law enforcement agency that had recovered them after they had been stolen from Lennick's father. Bouwkamp's bloodstained boots were found in the trailer and dried blood samples were collected from the spatters found on Bouwkamp's truck. The blood from the boots and truck matched that of the victim, as did hair fragments found in the dried blood on Bouwkamp's boots.


Bouwkamp correctly asserts that due process considerations entitle criminal defendants to affirmatively stated theory of the case instructions when two conditions are met. Murray v. State, 776 P.2d 206, 209 (Wyo.1989); Best v. State, 736 P.2d 739, 744 (Wyo.1987). The instruction must sufficiently inform the court of the defendant's theory and must be supported by competent evidence. Id. However, there is another fundamental condition precedent which was not met by the offered instruction. The instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That...

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