Cutbirth v. State

• Decision Date: 11 March 1988
• Docket Number: No. 86-53,86-53
• Citation: 751 P.2d 1257
• Parties: Rickey Don CUTBIRTH, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 1257

751 P.2d 1257

Rickey Don CUTBIRTH, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).

No. 86-53.

Supreme Court of Wyoming.

March 11, 1988.

Leonard D. Munker, State Public Defender, and Martin J. McClain, Deputy State Public Defender, Wyoming Public Defender Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Mary B. Guthrie, Sr. Asst. Attys. Gen., and Kaylin D. Kluge, Legal Intern, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

In this appeal, taken from the denial of his efforts to obtain post-conviction relief, Cutbirth raises two primary questions. Initially, he asserts that the trial court erred in denying his motion for a new trial which was premised upon a ground of newly discovered evidence. He also claims that the trial court erred in denying his motion for post-conviction relief in which he urged ineffective assistance of counsel in his direct appeal from his conviction. In support of this latter issue, he argues that the ineffective assistance is demonstrated by the failure to assert in the direct appeal two issues which he now contends established error in the trial proceedings: (1) the introduction into evidence at his trial of prior physical assaults which he committed upon his wife; and (2) the violation of his constitutional right not to be compelled to give evidence against himself. We conclude that there was no prejudicial error implicated in these proceedings, and we affirm the decision of the trial court.

In his brief, Cutbirth states the issues as:

"I. Whether the trial court erred in denying Appellant's Motion for a New Trial which was based upon newly discovered evidence.

"II. Whether Appellant received ineffective assistance of counsel in the course of his appeal.

"III. Whether this Court erred in permitting the State to introduce evidence pursuant to Rule 404(b), W.R.E., that Appellant had previously hit his wife.

"IV. Whether Appellant's conviction was obtained in violation of his constitutional right not to be compelled to give evidence against himself."

The State of Wyoming sets forth this statement of the issues to be decided in this case:

"I. Whether appellant's motion for new trial was properly denied because newly discovered evidence was presented?

"II. Whether appellant was afforded effective assistance of counsel?

"III. Whether the issue of the admissibility of defendant's prior treatment of the victim was properly brought to the attention of this court?

"IV. Whether appellant's conviction was obtained in violation of his constitutional right against self-incrimination?

"V. Whether this entire appeal should even be entertained?"

The proceedings which are the subject of this appeal were initiated in the district court following this court's affirmance of the judgment and sentence which formalized Cutbirth's conviction of second degree murder. Cutbirth v. State, Wyo., 663 P.2d 888 (1983). The opinion in that case succinctly describes the circumstances surrounding the shooting of Cutbirth's wife on April 4, 1982. The evidence which was submitted at the trial was held to be sufficient to justify the jury in concluding that, in the course of a quarrel, Cutbirth obtained his .357 Magnum pistol from a cabinet, removed it from its holster and shot his wife in the head with it. As soon as his conviction was affirmed, Cutbirth instituted collateral attacks upon that conviction. Those efforts resulted in a consideration of an appeal from a denial of photographs of all exhibits and a transcript of Cutbirth's recorded statement to law enforcement officials. Cutbirth v. State, Wyo., 695 P.2d 156 (1985). Some of Cutbirth's efforts to proceed with his collateral attacks are outlined in that opinion.

Cutbirth was successful in obtaining permission of the district court to have some of the evidence evaluated by an independent criminalist. That individual concluded in a report that the explanation of the irregular wound in the victim's head, furnished at trial by the pathologist, was erroneous, and " * * * [p]re-impact destabilization (e.g.--low angle ricochet) is, however, a possible cause of such an irregular entry wound." The report went on to say, however, that " * * * [t]his could neither be confirmed or excluded from an examination of the recovered bullet due to the extensive terminal ballistic damage and deformation it incurred from penetration of bone." The theory of ricochet was relied upon by Cutbirth in his Amended Petition for New Trial, and he claims that the new trial should have been granted on the ground of newly discovered evidence.

In Opie v. State, Wyo., 422 P.2d 84, 85 (1967), this court set forth those factors as to which a party seeking a new trial must satisfy the court:

" * * * (1) That the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that it did not come sooner; (3) that it is so material that it would probably produce a different verdict, if the new trial were granted; and (4) that it is not cumulative, viz, speaking to facts in relation to which there was evidence at the trial." (Citations omitted.)

The issues in Opie v. State, supra, were similar to those presented in this case. Recently, we have reiterated the necessity for demonstrating to the satisfaction of the district court that each of these factors is present. Gist v. State, Wyo., 737 P.2d 336 (1987); Frias v. State, Wyo., 722 P.2d 135 (1986). Whether these factors are manifested sufficiently to justify the granting of a new trial is a matter within the discretion of the trial court, and we do not reverse the decision of the trial court unless an abuse of discretion is shown as a matter of law. Gist v. State, supra. This conclusion can only be justified on the basis of a determination that the trial court's decision was unreasonable.

In this case, the trial judge, in his Order Denying New Trial, specifically addressed the issues in this way:

"Now, Petitioner attacks his conviction from the opposite direction. Specifically, Petitioner asserts that he has discovered new evidence which establishes the killing to be accidental. Petitioner offers the conclusions of Lucien C. Haag, a ballistics expert, who theorizes: 'Pre-impact destabilization (e.g.--low angle ricochet) is, however, a possible cause of such an irregular entry wound.'

"Petitioner's argument that the killing was accidental is not a new theory. Although the Court does not rely on the statement for its decision in this case, it is interesting to note that in a statement to police which was suppressed by the Court at the insistence of Petitioner, Mr. Cutbirth reported that he thought the gun was empty; that he wanted his wife to leave him alone; that he wanted her to know that he meant business; that he pointed the gun in her direction; and

'I thought it would click, just snap. It went off. I heard a loud roar, and I jumped. It scared me and I looked back her way and I looked at the wall because I figured it (hit) the wall; and I seen a little trickle of blood coming down her forehead right here.'

"The theory of an accidental killing was submitted to the jury. The jury found the Defendant guilty.

"While the theories of Lucien Haag may have come to the attention of Petitioner since the trial, in the exercise of due diligence, there was, or is, no valid reason why these theories were not sooner discovered.

"Furthermore, the evidence from Lucien Haag is not so material that it would probably produce a different result. The premise of the evidence is an irregular entry wound. Petitioner, and Mr. Haag, theorize that because the gun 'fully and properly stabilizes fired bullets' an irregular entrance wound could have been caused only by a bullet destabilized by ricochet. However, at trial the pathologist testified that there was extensive fracturing of the skull by the bullet; that it is fairly normal for such bullets to be 'incredibly flat'; that high velocity bullets may or may not exit; and that there are two possibilities for irregular entrance wounds: unstable bullets or as the bone fractured, it widened the wound. The testing of Mr. Haag would, at best, be contradictory or cumulative to the testimony elicited at trial. However, it would not conclusively establish that the killing was accidental; more importantly it would not make an accidental killing more probable than an intentional killing. A jury would still be left with the same conflict to resolve: was the killing intentional as claimed by the State or was it an accident as claimed by Defendant?"

In its order, the trial court applied the Opie criteria and found that due diligence would have disclosed the views of the criminalist prior to trial; that the testimony of the criminalist would be only contradictory or cumulative, i.e., addressing facts as to which there was evidence at the trial; and that it was not so material that it probably would produce a different verdict at another trial. In addition, to those matters discussed by the trial judge, it perhaps is worthwhile to note that in one of his reports the criminalist also said:

"No evidence of ricochet was present on this bullet [the bullet removed from the victim's head]; the substantial flattening and partial breakup of the bullet was due to terminal ballistic damage."

Even if the subsequent report is read as an opinion of ricochet instead of a suggestion of another possibility, the opinions of the criminalist are conflicting.

Cutbirth urges the court to abandon the Opie test, but we are satisfied that the Opie case establishes an appropriate approach for analyzing claims such as Cutbirth's. We affirm the denial of the motion for new trial which was based on the ground of newly discovered evidence. There is less justification for granting a new trial on this ground in this case than was present in Frias v. State, supra,...