Burnett v. State

• Decision Date: 28 December 2011
• Docket Number: No. S–11–0081.,S–11–0081.
• Citation: 267 P.3d 1083,2011 WY 169
• Parties: Brodey A. BURNETT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2011 WY 169

267 P.3d 1083

Brodey A. BURNETT, Appellant (Defendant),

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

No. S–11–0081.

Supreme Court of Wyoming.

Dec. 28, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Brodey A. Burnett was convicted on one count of attempted second degree murder and two counts of aggravated assault and battery. The trial court merged all three counts for purposes of sentencing, and sentenced Mr. Burnett to a prison term of twenty to thirty years. Mr. Burnett appeals his conviction, focusing mainly on jury instructions he claims were improper. We will affirm.

ISSUES

[¶ 2] Mr. Burnett presents three issues, which we have reworded slightly:

1. Was the jury properly instructed on the elements of attempted second degree murder?

2. Was the jury properly instructed on the definition of “recklessly,” one of the elements of aggravated assault and battery?

3. Does the fact that the elements of attempted second degree murder and the elements of aggravated assault and battery are identical deny Mr. Burnett due process of law?

FACTS

[¶ 3] On December 25, 2009, Willie Wheeler and his younger brother, Beau, spent the day snowboarding. As they returned home to Lander that evening, Willie ¹ received a phone call from Amber Mefferd, whom he described as a “good friend.” She invited Willie and Beau to join her and Alyssa Jurado at a party at another friend's home in Riverton. They agreed, and met Ms. Mefferd and Ms. Jurado at the party at about 10 p.m. Because Willie had plans for the next day, the four decided to leave the party around midnight. They were going to leave Ms. Jurado's car at her mother's home in Riverton, then all of them would take Willie's SUV to his home in Lander.

[¶ 4] As they left the party, they saw Mr. Burnett standing near Ms. Jurado's car. Willie recognized Mr. Burnett from a previous encounter. According to Willie's testimony, Mr. Burnett “showed up” at a party at Willie's home a few months earlier, and “Problems did arise.” Beau also testified to a previous “confrontation with Mr. Burnett.” Nevertheless, Mr. Burnett asked them for a ride, saying that he wanted to “party out” with them at Willie's home in Lander. He was told there was not going to be a party at Willie's home because they were all going home to get some sleep. But Mr. Burnett was “insistent,” and Beau eventually agreed to give him a ride as far as Ms. Jurado's mother's home. Mr. Burnett lived nearby, and Beau told him he could walk home from there. They left, with Willie and Ms. Mefferd in Willie's SUV, and Beau, Ms. Jurado, and Mr. Burnett in Ms. Jurado's car.

[¶ 5] Beau testified that, during the ride to Ms. Jurado's mother's home, Mr. Burnett “was saying stuff about my brother and wanting to fight him and all of that.” According to Ms. Jurado, Mr. Burnett was “yelling around. He was just yelling.” They arrived at Ms. Jurado's mother's house, and Beau parked Ms. Jurado's car at the curb. Willie stopped his SUV nearby. Mr. Burnett exited Ms. Jurado's car and approached Willie's vehicle, asking Willie again for a ride to Lander to party. Willie again told Mr. Burnett that they were not going to party, and refused to give him a ride. Mr. Burnett responded by yelling at Willie and “pounding” on the windows of the SUV. Apparently referring to their earlier encounter, Mr. Burnett asserted that “this stuff between us isn't over,” and said it was time to finish it. Willie responded, “Okay, let's settle it right here,” and stepped out of his SUV. Preparing to fight with Mr. Burnett, Willie took off his jacket and handed it to Beau, who was standing nearby. Willie provided this testimony about the incident that followed:

Q [by the Prosecutor] After you tossed your jacket to Beau, what did you do?

A I started approaching Mr. Burnett.

Q And what happened?

A He pulled a knife.

Q He pulled a knife from where?

A Out of his front right pocket....

Q What did you do when you saw that?

A I put my hands up and told Mr. Burnett, “Hey, we don't need to do anything stupid tonight. You don't want to ruin your life, you don't want to ruin mine. Just call it good and we'll go from here.” ...

Q Did you have anything in your hands?

A No, ma'am.

Q Where was Beau at that point?

A He was still at the back of the truck by the back doors, still about four, five [feet] away from me.

Q What did you do at that point after you told him you didn't want any trouble? What happened next?

A I went to ... get a flashlight out of the back of my truck.

Q Why were you looking for a flashlight at that point?

A To defend myself....

Q As you were reaching into that vehicle or looking for the flashlight that you described, what happened next?

A One of the girls, I don't know which one it was, screamed, and I felt a large pound on my back. I didn't know what it was. Thought it was just a punch.

[¶ 6] Ms. Mefferd and Ms. Jurado also thought Mr. Burnett had punched Willie in the back. Beau, however, had seen the knife in Mr. Burnett's hand, and yelled to Willie that he had been stabbed. Beau tried to get Willie into the SUV and away from Mr. Burnett, but Mr. Burnett came at them again, cursing and lunging at them with the knife. After chasing them around the vehicle, Mr. Burnett “took off to the east.” Willie and Beau jumped into the SUV, with Willie in the driver's seat and Beau in the back seat. Willie drove away.

[¶ 7] Willie drove only a short distance before he began coughing up blood. He stopped the vehicle and started to get out so that Beau could drive. He collapsed to the ground. Beau helped him into the back seat, then got in behind the wheel. As Beau started driving toward the hospital, Ms. Jurado called 911. When they arrived at the hospital, Willie was taken into the emergency room and received immediate medical attention.

[¶ 8] One of the doctors who treated Willie in the emergency room testified that Willie had suffered a stab wound near the middle of his back just to the left of his spine. The doctors inserted a tube into Willie's chest. Willie continued to bleed through that tube, and his pulse rate stayed high, indicating that he was losing blood. Willie eventually lost about three and a half liters of blood, the doctor testified, which was significant for a person whose normal blood volume would be about five liters. The doctor termed such substantial blood loss as “dangerous” and “life-threatening.” In addition, Willie's lung remained collapsed—a condition the doctor termed “urgent”—and the doctors determined that he needed chest surgery. Because that surgery was generally not performed in the Riverton hospital, arrangements were made to send Willie on a Life Flight to Casper. The surgery performed there revealed a laceration of the intercostal artery, a large artery “that runs along the rib, supplying the rib and the muscles around there.” Willie was hospitalized for five days, and was released on January 1, 2010.

[¶ 9] Based on his observations, the doctor described Willie's condition as critical due to his injuries. He estimated that Willie's odds of surviving the stabbing had been “no more than 50/50, based on the amount of blood loss, the continuing blood loss.”

[¶ 10] Before Willie was flown from the hospital in Riverton, he gave a statement to a police officer. According to the officer, Willie said that he had been stabbed by Mr. Burnett, and also reported a “previous incident with Mr. Burnett where they had been in a physical altercation.” Ms. Mefferd and Ms. Jurado also spoke to the police officer, reporting that Willie had been stabbed by Mr. Burnett. An investigation at the scene revealed footprints in the fresh snow around where the vehicles were parked, and “a small spot that appeared to be blood on the ground in the snow.” The police officer followed one set of prints, made by athletic shoes, going away toward the east, eventually leading to a house the officer recognized as belonging to Mr. Burnett's mother and step-father. After a back-up officer arrived, the investigating officer knocked at the door, and the step-father answered. He said he did not think Mr. Burnett was there, but gave the officers permission to look inside.

[¶ 11] The officers found Mr. Burnett asleep on a couch in the basement. They found a pair of black basketball shoes on the floor next to the couch, the soles of which were consistent with the prints the investigating officer had followed from the scene of the incident. They found two knives on a table located near Mr. Burnett. The knife with a black blade had a substance on it that appeared to be blood. The officers collected the shoes and the knives as evidence. They also took the blue jeans that Mr. Burnett had been wearing, and upon inspection, they found what appeared to be blood spots inside the front right pocket and outside the back right pocket.

[¶ 12] Mr. Burnett was arrested and charged with attempted second degree murder. He was also charged with one count of aggravated assault and battery inflicting serious bodily injury, and one count of aggravated assault and battery with a deadly weapon. After hearing the evidence summarized above, the jury convicted him on all three counts. Because all three counts arose from the same incident, the district court ordered the counts merged for purposes of sentencing, and sentenced Mr. Burnett to a term of twenty to thirty years in prison. Mr. Burnett asks this Court to review and reverse his conviction.

DISCUSSION

Jury Instructions—Standard of Review

[¶ 13] In his first two issues, Mr. Burnett challenges the jury instructions given by the...