Eckert v. State, 83-227

Decision Date27 April 1984
Docket NumberNo. 83-227,83-227
Citation680 P.2d 478
PartiesWilliam Walter ECKERT, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender; Sylvia Lee Hackl, Appellate Counsel; Martin J. McClain, Asst. Appellate Counsel; Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Div.; John W. Renneisen, Senior Asst. Atty. Gen.; Thomas C. Wilson, Sheridan County Atty.; Patrick Day, Legal Intern, Cheyenne, for appellee.


BROWN, Justice.

Appellant William Eckert was convicted by a jury of second-degree murder, defined in § 6-2-104, W.S.1977 (June 1983 replacement). 1 In the five issues raised he contends:

"I. The trial court erred in failing to instruct the jury on the lesser included offense of manslaughter.

"II. The trial court abused its discretion and impinged upon appellant's right to meaningful review when it refused to allow the instruction conference to be recorded.

"III. The trial court abused its discretion when it denied appellant's request for a jury view.

"IV. The trial court abused its discretion when it refused to allow appellant to present surrebuttal.

"V. The course of appellant's trial failed to comport with the requirements of Krucheck v. State."

We will affirm.

Robert "Crash" Corcoran and William "Josh" Eckert, met at an AA (alcoholics anonymous) meeting in 1979. Crash and Josh had an association that might loosely be characterized as a friendship which mainly revolved around their lifestyle as alcoholics. They spent a considerable amount of time trying to get "on the wagon," only to fall therefrom. Crash is now dead, and Josh stands convicted of second-degree murder.

Evidence produced at trial indicated that Crash threatened to kill Josh, mentioning knives and guns. There is testimony that Crash frequently offered to "whup" appellant. Crash was also known to Paula Amende, girlfriend of appellant Josh. Crash had worked on Ms. Amende's car and had some tools stored in her garage behind her residence. Crash harassed Josh and his girlfriend several times by calling them in the middle of the night. According to defense witnesses, Crash had an obsession about "whupping" Josh. He expressed his desire or intent more than a few times.

Early in the morning of April 12, 1983, appellant and his girlfriend were awakened by the sound of a vehicle near Ms. Amende's apartment. Both appellant and Amende got up, but the latter went back to bed. Appellant recognized Crash as the driver of a van parked in front of the apartment. Crash drove the van around the block and into an alley behind the apartment. He then parked the van in the alley and entered a shed next to the garage where he had previously stored some of his tools. Appellant heard loud noises coming from the shed so he dressed and went outside, carrying a baseball bat. Appellant confronted Crash in the shed; Crash left the shed in considerable haste and headed for his van. The final confrontation took place as Crash was entering the van. Appellant smashed a hole in the windshield with the baseball bat and battered the driver's side window. He then administered several blows with the bat to the body of Crash. Medical testimony indicated that Crash suffered a shattered skull, crushed larynx, broken jaw, severely bruised abdomen and injuries to his arms and hands. Sometime before, during or after this rain of blows, appellant grabbed Crash by the shirt and pulled him out of the van. Robert "Crash" Corcoran died thirteen days later from the injuries inflicted by appellant.

At trial appellant admitted the killing but claimed self-defense. Sufficiency of the evidence is not an issue here, nor does appellant claim that he was restricted in presenting his defense.


During the instruction conference the state tendered a lesser included offense instruction on manslaughter. Appellant, however, strongly objected to this instruction. The court was advised that

" * * * the defendant had signed a memo acknowledging that he understood the difference in the penalties between Second Degree Murder and Manslaughter and had advised his defense attorneys to proceed under the theory that the facts established only that there had either been a purposeful taking of the life of the deceased or that it was self-defense and therefore the lessor [sic] offense of Manslaughter did not apply in this case." (defense counsel affidavit)

The trial court did not give the state's proposed instruction on the lesser included offense of manslaughter because appellant opposed the instruction. There was no objection to the trial court's determination. It is agreed by the parties that absent appellant's desires, an instruction on manslaughter would have been appropriate under our ruling in State v. Selig, Wyo., 635 P.2d 786 (1981).

On appeal appellant now argues that the trial court had a duty to instruct on manslaughter even in the face of his spirited objection to such an instruction at trial. We cannot agree. Appellant cites authority to the effect that a trial court has the obligation to raise " * * * on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial. * * * " Taylor v. Commonwealth of Kentucky, 436 U.S. 478, 489, 98 S.Ct. 1930, 1937, 56 L.Ed.2d 468, 477 (1978).

Appellant cites cases holding that the trial court must give lesser included offense instructions if requested, and further, must give such instructions on its own initiative in either situation if the evidence warrants such instruction. No cases are cited, however, for a holding that a trial court must force upon a defendant an instruction that he objects to.

In support of his argument on this issue appellant relies principally on Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). In Beck, an Alabama statute prohibited the use of lesser included offense instructions in capital cases. The United States Supreme Court held that the death penalty could not be imposed under those circumstances. The narrow ruling in that case was specifically limited to capital cases. Furthermore, the question there was not whether a trial court must force an instruction on a defendant who objects to it as is the question here. We do not disagree with Beck, but merely determine that the rule is not applicable to this case.

Appellant cites State v. Case, 228 Kan. 733, 620 P.2d 821 (1980); State v. Heitman, Mo.App. 613 S.W.2d 902 (1981); State v. Brown, 300 N.C. 41, 265 S.E.2d 191 (1980), for a rule that requires a trial court to instruct on lesser included offenses even though no specific request is made. We declined to address that question in State v. Selig, supra, nor are we concerned with it here. The cases cited by appellant are not authority for the question we need to answer.

Appellant argued at trial that the case was either self-defense or second-degree murder as charged, and that a lesser included offense instruction was inappropriate. He reasoned that if he was acting in self-defense he was not guilty of any crime. Apparently appellant's theory of defense was that an instruction on manslaughter might encourage the jury to compromise. Appellant's strategy was not successful at trial. Neither can we permit appellant to subvert the judicial process. Ordinarily, courts will not prohibit a defendant from choosing his own trial tactics and substitute the court's idea of how a defendant should defend himself.

We hold that a defendant can effectively waive an instruction on a lesser included offense as long as he does so knowingly and there is no impediment to such waiver. Appellant does not contend that he suffered any impediment that would detract from knowingly waiving an instruction on manslaughter. His only contention is that the judge was obligated to force the instruction on him for his own good.

The rule on waiver of fundamental rights is not novel. Frequently defendants waive a jury trial, waive their right against self-incrimination and waive their right to counsel. We hold that it was not error for the trial judge to honor appellant's request and not instruct on the lesser included offense of manslaughter.


Appellant requested that the instruction conference be recorded; however, the trial court refused to permit the recording of those proceedings. Appellant assigns this refusal as error. He was not restricted from making a record of his objections to the instructions given or to the instructions offered but not given. He does not complain that he was restricted in this manner. Appellant appears to be arguing that he was prejudiced because error may have occurred in the instruction conference. However, he did not bring to our attention any errors or untoward contact that took place at the conference.

We must assume that if anything inappropriate took place at the instruction conference appellant would tell us about it. Appellant was aware of his right to supplement the record under Rules 4.03 and 4.04, Wyoming Rules of Appellate Procedure. He in fact did supplement the record under these rules, but did not advise us of any prejudicial thing that occurred at the conference. The better practice would be to record the instruction conference. We hold, however, that under the circumstances it was not reversible error to prohibit the recording of the conference.


Appellant maintains that he understood that the trial court would permit a view of the premises where the deceased was beaten to death, and further, that he did not prepare detailed diagrams of the premises because of that understanding. 2

Despite appellant's understanding, the trial court stated:

"Well, Mr. Wolfe, the Court never said to you or anybody else, 'Sure, we'll go down and view the premises.' I asked the sheriff...

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