Creecy v. State

• Decision Date: 10 July 2009
• Docket Number: No. S-08-0211.,S-08-0211.
• Citation: 210 P.3d 1089,2009 WY 89
• Parties: George CREECY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

210 P.3d 1089

2009 WY 89

George CREECY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0211.

Supreme Court of Wyoming.

July 10, 2009.

Representing Appellant: Diane M. Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

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

KITE, Justice.

[¶ 1] A jury convicted George Creecy of aggravated assault for intentionally and knowingly causing bodily injury to Dale Chavez with a knife. Mr. Creecy appealed, claiming the district court erred when it instructed the jury that he had a duty to retreat before using deadly force in self defense. We affirm.

ISSUE

[¶ 2] Mr. Creecy presents the issue for our determination as:

Did the district court err when it instructed the jury on a defendant's duty to retreat before the use of deadly force is justified, when such instruction is not applicable in the case and only serves to confuse or mislead the jury?

The State rephrases the issue as:

Is Instruction No. 18 a proper statement of Wyoming law and, if it is not objected to at trial, did it become the law of the case and a question of fact for the jury?

FACTS

[¶ 3] In March of 2008, the Uinta County Attorney's office filed an information charging Mr. Creecy with one count of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and (b) (LexisNexis 2007). In her affidavit supporting the information, police officer Kathryn M. Adams stated that she was dispatched to John's Bar in Lyman, Wyoming on February 20, 2008, at approximately 2:00 a.m. in response to a reported stabbing. She found Dale Chavez sitting in a vehicle parked in front of the bar with a woman who was applying pressure to his chest with her hands. The woman told Officer Adams that Mr. Chavez was bleeding profusely from his chest. Another woman standing next to the vehicle said that Mr. Creecy had stabbed Mr. Chavez and was inside the bar.

[¶ 4] Officer Adams found Mr. Creecy seated on a stool next to the bar. His left eye was swollen and black and blue and he had blood around his mouth. Witnesses informed the officer that Mr. Creecy and Mr. Chavez had gotten into a fight earlier in the evening. At approximately 1:30 a.m. they got into another fight during which Mr. Chavez punched Mr. Creecy in the face with his fist a couple of times. One witness said Mr. Creecy pulled a knife and she grabbed it from him. Mr. Chavez left the bar but returned and the two men began fighting again. Mr. Creecy had another knife and stabbed Mr. Chavez.

[¶ 5] An ambulance crew called to the scene advised Officer Adams that Mr. Chavez had three stab wounds, one in the upper right chest and two in the left upper abdomen. Officers found two 4 1/2" folding pocket knives in Mr. Creecy's pockets. One of the knives had what appeared to be blood on it.

[¶ 6] Officer Adams arrested Mr. Creecy for aggravated assault. Because of the significant injuries to his face, she directed that he be taken to the hospital for treatment before being transported to jail. At the hospital, it was determined that he had a broken nose and his left orbit was fractured. Cuts inside his lip and underneath his eye required stitches and he had multiple lumps and abrasions on his forehead and face.

[¶ 7] Mr. Creecy pleaded not guilty to the aggravated assault charge and the district court convened a trial. The witnesses who had been present at the bar on the night of the fight gave differing accounts of what happened. Mr. Chavez testified that he confronted Mr. Creecy shortly after he arrived at the bar because he had been told Mr. Creecy had been making derogatory racial comments. Mr. Chavez grabbed Mr. Creecy by the shirt collar and told him he did not want to hear any more such comments. The bartender intervened, separated them and later persuaded Mr. Chavez to apologize to Mr. Creecy.

[¶ 8] Mr. Chavez testified that later in the evening the bartender left and he went behind the bar to get another beer. He said Mr. Creecy grabbed him and told him that he was in charge while the bartender was gone. Mr. Chavez testified the next thing he remembered was the woman he was with breaking him and Mr. Creecy apart after a fight. He said a man he was with at the bar persuaded him to go home. He testified that he was leaving the bar when Mr. Creecy lunged at him and another fight broke out. Someone broke up the fight and Mr. Chavez left the bar. He realized he was bleeding as he was walking down the road.

[¶ 9] Mr. Creecy testified that soon after he arrived at the bar that night Mr. Chavez asked if he could talk with him. They went into a separate room and Mr. Chavez asked Mr. Creecy if he had a problem with Mexicans. Mr. Creecy tried to explain that he did not, but Mr. Chavez grabbed him by the collar and told him he did not appreciate his comments. The bartender came into the room and broke up the confrontation. Later, the bartender brought Mr. Chavez over to Mr. Creecy to apologize.

[¶ 10] Mr. Creecy testified that the bartender left later in the evening to take someone home and asked him to watch the bar. As soon as the bartender left, Mr. Chavez went behind the bar toward the beer cooler. Mr. Creecy asked him where he was going and Mr. Chavez punched him. Mr. Creecy testified that Mr. Chavez "pummeled" him until someone pulled Mr. Chavez off of him. As Mr. Chavez was being pulled away, he kicked Mr. Creecy in the chin.

[¶ 11] Mr. Creecy testified that after the fight was broken up, he took two knives out of his jacket pocket because he "knew [Mr. Chavez] was coming back." Two women were trying to persuade him to put the knives away when suddenly Mr. Chavez was "on him." The knives were still in his hands, he moved his arms to defend himself and then Mr. Chavez was gone.

[¶ 12] Rosalie Mansir testified that she was at the bar with a friend on the night of the fight. She testified Mr. Chavez was being very loud, banging his fists on the bar and swearing a lot. She said Mr. Chavez came across the bar behind her and jumped on Mr. Creecy. Mr. Creecy was down on the ground, both men were hitting each other and other bar patrons tried to separate them. Someone escorted Mr. Chavez out of the bar. She testified that Mr. Creecy was "a bloody mess" and she got him a wet towel for his face. Mr. Creecy showed her two knives and she told him to put them away. A few minutes later Mr. Chavez rushed through the door and headed for Mr. Creecy. The two men lunged at each other and began to fight again. Other patrons managed to separate them and Mr. Chavez left.

[¶ 13] Adriana Castle testified that she went to the bar with Mr. Chavez that night. She was in the back room playing pool when the fight broke out. She saw the men pushing each other and arguing and ran to stop them. When she got to them, Mr. Creecy was on the floor on his back and Mr. Chavez was over the top of him. They were punching each other. She pulled Mr. Chavez off Mr. Creecy and pushed him away. She told Mr. Creecy to stop and tried to calm him down. As she was talking to him he pulled out a knife and held it up. She grabbed it from him and tossed it on the bar. She turned to check on Mr. Chavez and Mr. Creecy pulled another knife from his coat pocket. Mr. Chavez was already moving toward them, he pushed her out of the way and the two men began fighting again. She grabbed Mr. Chavez and pushed him toward the door. Outside, she told him to go home.

[¶ 14] Colby Gertsch testified that he went to the bar to meet friends, including Mr. Chavez. He did not see the fight break out but heard the commotion and turned to see Mr. Chavez standing over Mr. Creecy, hitting him. He testified that Mr. Chavez was getting in some pretty good blows and Mr. Creecy was not really fighting but in more of a defensive position. Ms. Castle broke up the fight and Mr. Chavez came and sat next to him. Mr. Gertsch tried to calm him down and convince him to go home. He and Mr. Chavez started to leave but when they reached the end of the bar Mr. Creecy came after Mr. Chavez. Another fight broke out with Mr. Creecy ending up back on the floor. Mr. Chavez grabbed a bar stool, went to swing it at Mr. Creecy, but hit Mr. Gertsch with it instead. Mr. Gertsch put his arms around Mr. Chavez and got him outside.

[¶ 15] Mr. Creecy's defense at the trial was that his actions were necessary and reasonable to defend himself. Defense counsel submitted four jury instructions related to his self defense claim:

INSTRUCTION NO. O

One who has reasonable grounds to believe that another will attack him, and that the anticipated attack will be of such a character as to endanger his life or limb, or to cause him serious bodily harm, has a right to arm himself for the purpose of resisting such attack.

If the defendant armed himself in reasonable anticipation of such an attack, that fact alone does not make the defendant the aggressor or deprive the defendant of the right of self-defense.

INSTRUCTION NO. P

It is lawful for a person who is being assaulted to defend himself from attack if he has reasonable grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so he may use all force which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.

INSTRUCTION NO. Q

To justify acting in self-defense, it is not necessary that the danger was real, or that the danger was impending and immediate, so long as the defendant had reasonable cause to believe and did believe these facts. If these two requirements are met, acting in self-defense is justified even though there is no intention on the part of...