Farrow v. State

• Decision Date: 19 March 2019
• Docket Number: S-17-0084,S-18-0076
• Citation: 437 P.3d 809
• Parties: Wade Richard FARROW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

437 P.3d 809

Wade Richard FARROW, Appellant (Defendant),

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

S-17-0084

S-18-0076

Supreme Court of Wyoming.

March 19, 2019

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General. Argument by Ms. Harper.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Wade Richard Farrow appeals his second-degree murder conviction, asserting that the district court committed several reversible errors during the course of his trial, and further contending that he received ineffective assistance of trial counsel. We affirm.

ISSUES

[¶2] Mr. Farrow presents four issues:

I. Did the district court err when it instructed the jury?

II. Did the district court abuse its discretion when it prohibited testimony of specific instances of conduct relating to the victim’s character for violence under W.R.E. 404(a)(2) and 405(b) ?

III. Did the prosecutors commit misconduct when they asserted to the jury that it needed to consider the fact that Mr. Farrow did not flee or leave the apartment prior to the physical altercation against his claim of self-defense?

IV. Did the district court err in finding that counsel for Mr. Farrow was not ineffective and denying his Rule 21 motion?

FACTS

[¶3] On the evening of December 20, 2014, Mr. Farrow and the woman he was living with, Whitney Lowham, went to a bar in Afton, Wyoming to celebrate a friend’s birthday. After having a couple of drinks with friends, Ms. Lowham left the bar without Mr. Farrow and made her way to a party at Blake Jensen’s apartment. Once at the apartment, the intoxicated Ms. Lowham kept falling asleep. Tyler Lindsey took her to Mr. Jensen’s bedroom so that she could sleep.

[¶4] While still at the bar, Mr. Farrow confided in an acquaintance, Andy Johnson, that he was concerned that Ms. Lowham was with another man and worried that things would not work out between them. Mr. Farrow and Mr. Johnson stayed at the bar and talked until 2:00 a.m., then spent an additional twenty to thirty minutes talking in the parking lot. The pair then walked to Mr. Johnson’s house where they continued to talk for an additional hour and a half. Mr. Johnson felt that Farrow was in a "pretty good spot emotionally" and that "everything kind of settled down" by that time, and the two decided to go look for Ms. Lowham.

[¶5] Mr. Johnson drove them to Mr. Farrow’s apartment. Mr. Farrow went in to look for Ms. Lowham, but she was not there. Mr. Farrow returned to Mr. Johnson’s truck, at which time he removed a pistol from the back of his pants and set it on his lap. The two then went to Mr. Jensen’s apartment to look for Ms. Lowham.

[¶6] Before going to the apartment, Mr. Farrow tucked the pistol into the back of his pants. He and Mr. Johnson entered the apartment, where Farrow asked about Ms. Lowham. He was told that Mr. Lindsey had taken Ms. Lowham back to one of the bedrooms, where she was asleep. Tony Hansen, who had been on the couch, began talking to Farrow. During the conversation, Mr. Farrow made a comment that Mr. Hansen perceived as derogatory towards Mr. Lindsey. Mr. Hansen began "lipping off," calling Farrow names and suggesting that the two go outside to fight.

[¶7] Mr. Farrow went back to the bedroom to check on Ms. Lowham. He spent approximately ten minutes with her before he walked back into the living room and sought help to get her out of the apartment and home. Mr. Hansen resumed taunting Mr. Farrow, calling him more names and continuing to insist that they should go outside and fight. Another individual suggested that the two should play beer pong to settle their dispute, and when Mr. Farrow agreed, Mr. Hansen responded, "Why, cuz you’re a bitch?" In response, Mr. Farrow pulled out his pistol and either shoved it in Mr. Hansen’s face or hit him across the face with it. Witnesses disagree over whether Mr. Hansen froze or threw a punch at Mr. Farrow.

[¶8] Mr. Farrow then turned his back to Mr. Hansen, placed the pistol up under his arm, and fired directly into Mr. Hansen’s chest. Melanie Pumphrey attempted to separate the pair, and as a result was shot in the hip.

[¶9] After being shot the first time, Mr. Hansen fell on his back. Mr. Farrow positioned himself "straight over the top" of Mr. Hansen, steadied both hands on the pistol, and fired the remaining rounds into his body. Mr. Hansen sustained a total of seven gunshot wounds. Mr. Farrow fled the apartment and waited outside for law enforcement to arrive.

[¶10] Mr. Farrow testified to a different version of events. He told the jury that he did not want to leave without Ms. Lowham, and so he decided to ask Mr. Johnson to help him carry her out of the apartment. As soon as he returned to the living room after checking on Ms. Lowham, Mr. Hansen again suggested that they go outside to fight. Mr. Farrow turned his back to Mr. Hansen, and Mr. Hansen struck him in the back "really hard." Mr. Farrow testified that, in pain and in fear, he pulled out the pistol and stuck it in Mr. Hansen’s face, though he was not planning to shoot him. Mr. Farrow slumped over, was getting hit repeatedly, and two other individuals had their hands on the pistol when his vision started to go black and the pistol fired. Mr. Farrow regained control of the pistol, saw Mr. Hansen standing, and shot him again several times. Mr. Hansen then fell back, and Mr. Farrow ran from the apartment.

[¶11] Mr. Farrow was charged with first-degree murder for the shooting death of Mr. Hansen and with aggravated assault and battery for the injury to Ms. Pumphrey. The jury acquitted him of first-degree murder, but found him guilty of the lesser included offense of second-degree murder. It also acquitted him of the aggravated assault and battery charge. The district court sentenced Mr. Farrow to serve thirty-five to sixty-five years imprisonment. Mr. Farrow appealed his conviction and sentence. He also filed a motion for a new trial pursuant to W.R.A.P. 21, asserting ineffective assistance of trial counsel. After holding an evidentiary hearing on the motion, the district court denied it. Mr. Farrow appealed that decision as well, and we consolidated his two appeals.

DISCUSSION

A. Jury Instructions

[¶12] Mr. Farrow asserts that the district court committed five reversible errors in instructing the jury. The district court "has extensive discretion in tailoring jury instructions, so long as they correctly state the law and fairly and adequately cover the issues presented." Merit Energy Co., LLC v. Horr , 2016 WY 3, ¶ 23, 366 P.3d 489, 497 (Wyo. 2016). "Accordingly, our review of a district court’s decision to give or refuse a particular jury instruction is for an abuse of discretion." Id . When there is no objection to a jury instruction, however, we must review for plain error. Schmuck v. State , 2017 WY 140, ¶ 32, 406 P.3d 286, 297 (Wyo. 2017). We apply the appropriate standard of review to each of Mr. Farrow’s claims. We begin with his three claims of improper instructions relating to the issue of self-defense, then turn to his remaining two claims.

1. Right to Arm

[¶13] Mr. Farrow’s first claim is that the district court improperly refused to give his proposed instruction explaining his right to arm himself. Because the question was presented to the district court, we review for abuse of discretion. Mr. Farrow proposed a jury instruction based on Wyoming Criminal Pattern Jury Instruction 8.05, which reads as follows:

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.

The district court declined to give this instruction.

[¶14] On appeal, Mr. Farrow asserts that long-standing precedent supports his claim that the district court abused its discretion when it refused to give this jury instruction. He relies on several cases, including Brown v. State , 80 Wyo. 12, 336 P.2d 794 (1959), for the proposition that, when the evidence conflicts as to who the initial aggressor was, the jury should be instructed "as to [the] accused’s right to arm himself in anticipation of danger, and, where such an instruction is warranted by the evidence, a refusal to give it constitutes error." Id. at 30, 336 P.2d at 801. Similarly, in Baier v. State , 891 P.2d 754 (Wyo. 1995), we quoted with approval from 41 C.J.S. Homicide § 350c, which said:

Where the court restricts the issue of self-defense by submitting the issue of provoking the difficulty, it should also instruct the jury as to accused’s right to arm himself in anticipation of danger. Such an instruction is not required where the court instructs as to self-defense without any limitation as to provoking the difficulty.

Baier , 891 P.2d at 759. Mr. Farrow contends that the identity of the first aggressor was not merely at issue in his case, but "likely ... one of the most crucial issues for the jury to decide." The record supports this contention, with evidence including testimony from Mr. Johnson that "Mr. Hansen was definitely the one, you know, kind of – kind of initiating it."

[¶15] However, the prosecution argued to the district court that this instruction was inappropriate because Mr. Farrow did not testify that he armed himself in anticipation of an attack. His testimony, to the contrary, was that he picked up the firearm "just out of habit," and that it was his habit to carry the pistol with him. The district court agreed...