Cutbirth v. State, 5838

• Decision Date: 31 May 1983
• Docket Number: No. 5838,5838
• Citation: 663 P.2d 888
• Parties: Ricky Don CUTBIRTH, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 888

663 P.2d 888

Ricky Don CUTBIRTH, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 5838.

Supreme Court of Wyoming.

May 31, 1983.

Sylvia Lee Hackl, Wyoming Public Defender Program, Gerald M. Gallivan, Wyoming Defender Aid Program, and Michael A. Blonigen, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Cr. Div., John W. Renneisen, Sr. Asst. Atty. Gen., Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE, and BROWN, JJ.

BROWN, Justice.

Appellant was convicted by a Lincoln County jury of second degree murder in violation of § 6-4-104, W.S.1977. ¹ He raises three issues:

"1. Whether the evidence is sufficient to prove, beyond a reasonable doubt, that appellant killed his wife 'maliciously and purposely.'

"2. Whether the evidence indicates the appellant's conduct was, at most, negligent.

"3. Whether the jury instructions on involuntary manslaughter misdefined the elements of offense and were so confusing and misleading that they deprived the appellant of a lesser included offense instruction and constitute plain error."

We affirm.

Appellant did not testify at trial; however, police officers related statements he made to them shortly after the shooting. There is no issue raised regarding the voluntariness of such statements. Appellant maintained while being questioned by police officers that the shooting was accidental.

I

We will discuss the first and second issues together because they both address the question of sufficiency of the evidence. We have stated the basic appellate rule innumerable times:

" 'The oft-repeated rule by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and we give to the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Stated another way--it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State. * * * ' " Harries v. State, Wyo., 650 P.2d 273, 274 (1982).

On the evening of April 4, 1982, appellant and his wife had a few drinks in their home. They argued. Appellant's wife tore from his neck a religious medal which had some sentimental value to him. Appellant got his gun from a cabinet and removed it from its holster. The gun discharged; the bullet struck his wife in the head and killed her.

There were significant facts from which the jury could find that appellant maliciously intended to use the revolver against his wife. Appellant pointed the gun toward his wife before its discharge. The gun was discharged within two feet of the victim's forehead, and the bullet entered the victim's skull almost between the eyes. The death weapon was a .357 magnum revolver with normal trigger pull and no malfunction. After the shooting appellant threw the gun outside.

Appellant's landlady testified that in 1981 she saw him hit the victim three times in the face after a heated discussion and that he continued toward her with clinched fists while the victim backed away. On other occasions the landlady saw appellant run after the victim who was trying to escape. Another witness testified that appellant told him that he had given the victim a black eye because she was "acting like a bitch." The mother of the victim testified that she took her daughter to a medical clinic twice for black eyes, broken lip and bites on her arm and breast caused by appellant. The mother of the victim talked to appellant about the injuries; appellant told his mother-in-law that he was sorry and would never do it again.

With respect to some of the circumstances surrounding the shooting, appellant told conflicting stories. Appellant stated that he could have shot his wife without realizing it, but that he didn't remember doing so. He also stated the opposite: "Yes, I was the one that shot my wife." He stated further that he had never been that mad and in that type of condition before. He also said that he had a bad temper.

Appellant maintained that the State failed to prove beyond a reasonable doubt that the killing was done purposely and maliciously. Appellant relies almost entirely on Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942), to persuade us that second degree murder was not proved beyond a reasonable doubt, or that if anything, he is guilty only of involuntary manslaughter. It is from that case the so-called Eagan rule was announced:

" * * * Where an accused is the sole witness of a transaction charged as a crime, as in the case at bar, his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted. * * * " Eagan v. State, supra, 128 P.2d at 226.

The Eagan rule was invoked in Doe v. State, Wyo., 569 P.2d 1276, 1277 (1977):

" * * * In these cases, our duty is neither to substitute our opinion for that of the jury, nor to blindly accept the jury's determination as correct. We are required, in order to sustain the conviction, to find that there is sufficient probative evidence, direct or circumstantial, to prove intent and malice beyond a reasonable doubt. In doing so, we cannot--and will not--retry the facts of a case, but will only apply the rules set forth herein to the particular facts and circumstances which are presented."

The Eagan rule has limitations; it does not help appellant under the facts of this case. The rule applies to testimony by an accused; here, appellant did not testify. Even if we look upon the testimony as his because the police were relating his statements, its application is doubtful if the witness' credibility is questionable, his testimony inconsistent, or his account of the incident improbable.

The Eagan rule is helpful to a defendant only in those circumstances where his explanation remains uncontradicted, either directly or by fair inference from testimony and evidence. Doe v. State, supra. The jury is at liberty to accept portions of appellant's testimony that it deems to be reasonable, and reject the other portions. Considering appellant's various and conflicting accounts of the circumstances surrounding the shooting, the jury could reasonably conclude that appellant's credibility had been impeached, that his stories were inconsistent and that the exculpatory portions were improbable.

We therefore cannot say as a matter of law that appellant's assertion that the shooting was accidental was unimpeached, nor can we say that his various accounts were consistent or probable. These determinations are conditions precedent to a reversal under Eagan. Leitel v. State, Wyo., 579 P.2d 421 (1978).

In State v. Bruner, 78 Wyo. 111, 319 P.2d 863 (1958), it was pointed out that the defendant was quiet and peaceable, always treated the deceased courteously, and was always good to...