Braley v. State

Decision Date05 August 1987
Docket NumberNo. 86-56,86-56
PartiesDonald BRALEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., David K. Gruver, Asst. Atty. Gen., Cheyenne, for appellee.


BROWN, Chief Justice.

In this case, the resulting homicide was the culmination of a dispute over parking. Danny Gregorio parked his vehicle at the curb in front of an apartment occupied by appellant Donald W. Braley and Braley's wife, Pam, and appellant or his wife ordered Gregorio to move his car. Thereafter, appellant and his wife traded insults with Gregorio and his friends and the exchange of pleasantries escalated into a shouting match. At that time, appellant went into his apartment and procured a gun and after firing a warning shot, he shot and killed Danny Gregorio. A jury convicted appellant of second-degree murder.

The issues on appeal raised by appellant are:


"Whether it was error to exclude Dr. Merrell's testimony as to the state of mind of the Defendant.


"Whether it was error to limit the extent of defense investigation into the alleged jury tampering.


"Whether it was error to refuse jury instructions pro-offered [sic] by the defense.


"Whether it was error to exclude the past arrest history of the victim.


"Whether there exists insufficient evidence to support Appellant's conviction of second degree murder."

We affirm.

On August 22, 1985, the victim, Danny Gregorio, while driving his wife's Cadillac, picked up Benny Pena and the twosome proceeded to the residence of John Barnes. The purpose of the visit to the Barnes' house was to talk to Barnes about painting a car for Gregorio. Gregorio stopped his car in the street near the apartment of appellant Donald Braley and his wife, Pam, in order to talk with Barnes. Gregorio was in the driver's seat of the parked Cadillac, Pena in the passenger's seat, and Barnes leaned through the driver's window while the trio conferred. While this conference was ongoing a blue Trans Am drove up behind the Cadillac and honked. Gregorio did not move the Cadillac, so the Trans Am backed up and went around the parked vehicle. At this juncture Barnes said to Gregorio that the owners of the Trans Am were his neighbors and that they likely would call the police. Danny Gregorio thereupon pulled the Cadillac over to the curb and parked it in front of the Braley apartment.

A half hour later the Trans Am returned and pulled up behind the parked Cadillac. Appellant and his wife Pam got out of the Trans Am and confronted Gregorio, Pena and Barnes. Appellant demanded that the Cadillac be moved. The Braleys, Gregorio, Pena and Barnes all became involved in the imbroglio that followed. As would be expected, all principals in the parking space fracas had been drinking before the fact.

Demands, insults and threats were exchanged. Verbal exchanges escalated into shoving and hitting. Appellant said he saw the passenger (apparently Pena) with a knife although no knife was ever found. Appellant went into his house, loaded his rifle and returned to the scene of the confrontation. He fired a shot into the air. Only Pena and Barnes exhibited good judgment and upon hearing the shot they ran.

Gregorio tarried, and said to appellant, "What are you going to do, shoot me with your gun?" Appellant did. Appellant then walked over to Gregorio, who was lying on the ground, and said, "Get up, you're not shot."

After the shooting appellant called the police and said someone had hit his head and he needed an ambulance. Appellant also said to his wife, "Pam, come here, we've got to get our stories together."

Appellant was charged with first degree murder. At trial he relied on two theories of defense: accident and defense of his wife, Pam. Appellant was convicted of second degree murder and sentenced to the penitentiary for not less than 20 years nor more than 25 years.


At trial appellant called Dr. Arthur N. Merrell, a psychiatrist as a witness. The purpose of Dr. Merrell's testimony according to appellant was to describe "Defendant's reaction to the events of the night in question, and whether such reaction was reasonable from the perspective of what causes fear, and how fear develops." Also, according to appellant, "The substance of the testimony was directed at whether or not the Defendant's actions were reasonable actions of self-defense under all the circumstances."

However, the trial court disallowed the testimony and appellant made an offer of proof. Dr. Merrell noted in the offer of proof eight or nine factors (defense counsel characterized these factors as "stressors") present at the scene of the shooting "that would or could or did trigger fear." The doctor concluded that appellant's "judgment is not as clear as it might be." Dr. Merrell further stated " * * * [I]t does appear that his (appellant's) judgment was fairly well affected by his fear. * * * " The offer of proof concluded:

"Q. Okay. Now, let me ask you a couple of questions: Would the fear that he had impair his motor function, you mentioned handling the rifle?

"A. Struggling with the rifle, yeah.

"Q. Okay. Could it impair his blood pressure or cause a change?

"A. You know, fear can affect the body by increasing--well, by changing a lot of bodily functions.

"Q. Okay. Pulse?

"A. Yes, pulse going up, heart rate going up, blood pressure increasing, getting peripheral vasodilatation, excitement, alertness increasing and so forth.

"Q. How about judgment?

"A. I think that fear can certainly impair judgment.

"MR. MUNKER: That's my offer, Your Honor."

The trial court rejected the offer of proof and held that fear and stress are emotions understood by the jury. The court stated:

" * * * [I]t is within the ken (perception, understanding, knowledge or vision) of the juror that is there either was or was not an assault in response to which the defendant was either justified or not justified in believing himself to be in imminent danger, and that he either did or did not behave as a reasonable person similarly situated. That's the reason we have jurors. They set the standard of reasonableness with regard to these kind of issues, not surrendering this judgment of that to that of an expert."

We agree with the trial judge.

Rule 702, Wyoming Rules of Evidence, provides:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

" * * * The 'aura of special reliability and trustworthiness' surrounding scientific or expert testimony, particularly calls for trial court discretion. * * * [Citation.]" Buhrle v. State, Wyo., 627 P.2d 1374, 1377 (1981).

The trial court's decision to admit or reject expert testimony is a decision solely within the sound discretion of the trial court and will not be reversed without a showing of clear and prejudicial abuse. Buhrle v. State, supra; and Smith v. State, Wyo., 564 P.2d 1194 (1977).

" * * * [I]n the ordinary self-defense fact situation it is not necessary to rely upon expert testimony to explain the perception of the accused at the moment of crisis when he or she resorts to the use of deadly force. * * * " Jahnke v. State, Wyo., 682 P.2d 991, 1013 (1984).

In Buhrle v. State, supra, at 1376, we said:

"The criteria to be used in determining the admissibility of an expert witness' testimony are set out in Dyas v. United States, 376 A.2d 827, 832 (D.C.C.A.1977), cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). As stated by the court:

" '(1) * * * the subject matter "must be so distinctively related to some science, profession, business, or occupation as to be beyond the ken of the average layman [emphasis added]"; (2) "the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth [emphasis added]"; (3) expert testimony is inadmissible if "the state of the pertinent art or scientific knowledge does not permit a reasonable opinion to be asserted even by an expert." ' McCormick on Evidence, § 13, pp. 29-31 (2d Ed.1972)."

In Smith v. State, supra, at 1199, we stated:

"Expert testimony is appropriate when the subject of inquiry is one which jurors of normal experience and qualifications as laymen would not be able to decide without the technical assistance of one having unusual knowledge of the subject by reason of skill, experience or education in the particular field. [Citations.] * * *

"The ultimate fact needed for a determination of the degree of the crime was the state of mind of the accused at the time of the shooting. Such a subjective conclusion must be found by the jury. The doctor could give jury members no more help than they already had from the facts. Under such circumstances, his conclusion was one which the jurors could draw for themselves. [Citation.] * * * "

Also, in Krucheck v. State, Wyo., 702 P.2d 1267, 1271 (1985), we stated:

" * * * Reaction to stress and excitement is something experienced by all of mankind. It is a matter of common knowledge within the experience of lay persons and hardly a subject for expert testimony. We have said, to be admissible, the subject matter must be so distinctively related to some science, profession, business, or occupation as to be beyond the ken of the average layman. [Citations.] * * * "

We hold that fear and stress are emotions experienced by all mankind and are not distinctively related to some science, technical or specialized knowledge. We...

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