Frias v. State

• Decision Date: 26 June 1986
• Docket Number: No. 85-66,85-66
• Parties: Martin FRIAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 135

722 P.2d 135

Martin FRIAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 85-66.

Supreme Court of Wyoming.

June 26, 1986.

Leonard D. Munker, State Public Defender, and Martin J. McClain, Appellate Counsel, Public Defender Program, Cheyenne, and Robert T. Moxley, Wheatland, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Mary B. Guthrie, and John W. Renneisen, Senior Asst. Attys. Gen., for appellee (plaintiff).

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

MACY, Justice.

Appellant Martin Frias was convicted, after trial to a jury, of second-degree murder in the shooting death of his girl friend, Ernestine Perea.

We reverse.

Appellant raises the following issues:

"1. Whether the failure of a juror to answer voir dire questions truthfully deprived appellant of his constitutional right to an impartial jury and his statutory right to peremptory challenges.

"2. Whether the trial court erred in ruling that the physician-patient privilege does not exist in criminal cases.

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

"4. Whether the evidence in this case was sufficient to support appellant's conviction of second degree murder.

"5. Whether the trial court erred in denying appellant's motion for a new trial which was based upon newly discovered evidence.

"6. Whether appellant received effective assistance of counsel at his trial such that his conviction was constitutionally obtained."

FACTS

In the summer of 1984, appellant, an illegal alien from Mexico, was living with Ernestine Perea in a trailer house southwest of Wheatland, Wyoming. Also living there were their two small children and Ernestine's four-year-old daughter from a former marriage.

On July 5, 1984, appellant and Ernestine spent the day apart. Ernestine took the children to a park in Wheatland where she spent the afternoon and evening drinking with friends. The party broke up around 9:30 or 10:00 p.m., and Ernestine and the children went home. Approximately three hours later, Ernestine was found dead in the bedroom of the trailer with a gunshot wound in her stomach and a high-powered rifle lying on the floor next to her.

At trial appellant testified that he arrived home shortly before Ernestine and the children on the night of the shooting. He helped put the children to bed and then prepared his own bed on the couch in the living room. He and Ernestine had gotten into an argument several days before, and, because Ernestine was still angry, appellant had slept on the couch since then. Shortly after Ernestine disappeared into the bedroom, appellant fell asleep. Moments later, he was awakened by a noise. He got up, looked outside, and checked the children's rooms. Finding nothing, he then went back to bed.

At approximately 1:00 a.m., appellant was again awakened by the sound of a child crying. He followed the cries to the door of Ernestine's bedroom. Inside he saw Ernestine lying on the floor. Her daughter was by her side trying to lift up her mother's head and sobbing uncontrollably. Appellant reached into the room and turned on the light. Ernestine was lying on her back with her head toward the door. She had a gunshot wound in her stomach, and appellant's .300 magnum Weatherby rifle lay next to her. Appellant grabbed the child and ran to the kitchen to call the police. According to appellant and a police officer, appellant was unable to give directions to the trailer in English. He therefore arranged to meet the police at a cafe in Wheatland. Clad only in jeans and accompanied by the child, appellant drove to the cafe, met the police officer, a sheriff's deputy, and the county coroner and led them back to the trailer. While the officers investigated the scene, appellant sat in the kitchen. Upon being informed that Ernestine was dead, appellant attempted to contact someone to take care of the children. He failed to reach anyone, and, therefore, the sheriff's office contacted DPASS, which immediately sent an agent out to get the children. When the initial investigation of the scene was concluded, appellant asked to go with the deputy to the sheriff's office. He voluntarily spent the night there, although he was not under arrest. On July 10, 1984, appellant was arrested and charged with first-degree murder following a two-to three-hour interview with agents of the division of criminal investigation (DCI).

At trial, the prosecution attempted to show that appellant planned and carried out the shooting of Ernestine Perea out of anger and jealousy. In support of its theory, the State called an officer from the Wheatland police department who testified that he was called to appellant's home on two occasions in 1982 to investigate domestic disputes. He testified further that on both occasions Ernestine asked him to remove appellant's rifle from the home. Ernestine's mother testified that her daughter was planning to leave appellant and move back to Cheyenne. A friend of Ernestine, who had been with her at the park on the day of the shooting, testified that appellant drove by the park and saw Ernestine and him "wrestling" in the grass.

The State's case with respect to the actual shooting was entirely circumstantial. The police officer, sheriff's deputy, and coroner who arrived first on the scene testified that, from the position of the body, the location of the rifle, and the blood spatters and bullet fragments in the wall behind her, their initial impression was that the victim had killed herself. However, upon turning the body over and discovering that the wound in the back was smaller than the stomach wound, they concluded that the bullet entered from the back and that the victim could not have fired the gun herself. Further testimony indicated no signs of a struggle in the room, but the victim's pants were ripped along the zipper, and she was bruised around the chest. Her blood alcohol level was .26%. Testimony by the pathologist who performed the autopsy and by members of the state crime lab indicated that the bullet entered the victim's back, passed horizontally through her body, and lodged in the wall. The path of the bullet was parallel to the floor. Members of the state crime lab also testified that the holes in the wall caused by the bullet fragments were about 17 1/2 and 19 1/2 inches from the floor. Given the parallel path of the bullet and the distance of the bullet holes from the floor, state crime lab witnesses concluded that the victim may have been on her knees or squatting and that the gun was approximately 18 to 20 inches off the floor when fired. Other witnesses from the state crime lab testified that although appellant's fingerprints were found on the rifle stock and ammunition box and the victim's prints were found on the rifle scope and barrel no identifiable prints were found on the trigger or bolt, or elsewhere on the gun. Vegetable oil and graphite particles were found on the victim's left hand and on the rifle barrel.

In contrast to the State's theory of the case, the defense attempted to show that there was reasonable doubt, in the first instance, as to whether appellant shot Ernestine at all and, in the second instance, as to whether he did it on purpose with premeditated malice.

Testimony demonstrated that appellant cooperated fully with the police. He called them and arranged to meet them to bring them back to the scene. He waited while they investigated. He voluntarily went to the sheriff's office and spent the night there, although not under arrest. Also, prior to his arrest, he agreed to two interviews with agents from DCI, throughout which he steadfastly asserted his innocence. Appellant denied having seen Ernestine wrestling in the park with another man. He thought that the death had been suicide, although he could not explain not having heard the gunshot. He said that he loved Ernestine despite their sometimes stormy relationship.

Three witnesses testified that appellant's right arm was practically useless due to an injury he had incurred a month before. They testified that he could not get dressed by himself or write normally, much less load and fire a rifle.

A therapist from the Southeast Wyoming Mental Health Center testified that at the request of a DCI agent, she met with the four-year-old child who first discovered the victim. During that session, the child indicated at first that appellant shot her mother. Then, suddenly, she exclaimed, " 'I shot her in the back. I shot her in the back. I shot her in the back.' " The child also told the therapist that she knew how to work a safety on a gun. Finally, the therapist described the following conversation with the child:

" * * * I asked [her], 'Did you talk to your grandma about what we talked about?' And she said, 'Un-huh.' And I said, 'What did grandma say about that?' And she said, 'Sh-sh-sh-sh-sh.' And we went out and got a pop out of the machine and she chanted the whole way, 'I can't tell you, I can't tell you, I can't tell you, I can't tell you, I can't tell you.' * * * "

A psychiatrist who also examined the child described her as very aggressive with symptoms of deprivation. At one point during the examination, the child took a note pad and ran it across the psychiatrist's neck saying, " 'I cut your neck off.' " She repeated this game several times.

Ernestine's best friend testified that Ernestine had tried to commit suicide on five occasions prior to her death. The first four times she attempted to cut her wrists with a knife. The last time she attempted to drive her car off the highway in an effort to have an accident.

The former director of the state crime lab testified that, based on his evaluation of the State's forensic evidence, no substantial inculpatory or exculpatory evidence had been found. He found in the items of physical evidence nothing...