Garcia v. State

• Decision Date: 11 August 1983
• Docket Number: No. 83-21,83-21
• Parties: Steve R. GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1148

667 P.2d 1148

Steve R. GARCIA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-21.

Supreme Court of Wyoming.

Aug. 11, 1983.

Sylvia Lee Hackl, State Public Defender; Gerald M. Gallivan, Director, Wyoming Defender Aid Program; David A. Hampton, Student Intern, Wyoming Defender Aid Program, and Michael A. Blonigen, Student Intern, Wyoming Defender Aid Program, for appellant.

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

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

THOMAS, Justice.

The primary question presented by this appeal is the proper form of an instruction with respect to self-defense when it is given to a jury in a second degree murder trial. The contentions of the appellant particularly emphasize the language of the instruction with respect to the obligation of the defendant to retreat. A second issue is presented with respect to the refusal of the county court judge to receive testimony from witnesses subpoenaed by the defendant for the preliminary examination. We discern no error in the proceedings before the county court judge nor in the instructions with respect to self-defense. We will affirm the judgment of the district court.

The appellant in his brief sets forth the following statement of the issues before this court:

"I. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT APPELLANT HAD A DUTY TO RETREAT IF HE COULD POSSIBLY HAVE DONE SO; AND WHETHER THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS REQUESTED BY APPELLANT THAT HE HAD NO DUTY TO RETREAT UNDER THE FACTS AND LAW OF THE CASE.

"II. WHETHER THE COUNTY COURT'S REFUSAL TO HEAR ANY OF THE WITNESSES SUBPOENAED BY THE DEFENDANT FOR HIS PRELIMINARY HEARING RESULTED IN A DENIAL OF DEFENDANT'S RIGHTS TO A MEANINGFUL PRELIMINARY HEARING UNDER RULES 7 AND 20 W.R.Cr.P."

The State of Wyoming makes a counter-statement of the issues in its brief, which suggests three matters to be determined as follows:

"I. WAS THE INSTRUCTION CHARGING A DUTY TO RETREAT IN ERROR IN THIS PARTICULAR CASE?

"II. DID THE MAGISTRATE COMMIT ONLY HARMLESS ERROR IN DENYING THE DEFENDANT THE OPPORTUNITY TO CALL THREE WITNESSES AT THE PRELIMINARY HEARING?

"III. WAS THE DENIAL BY THE MAGISTRATE EVEN ERROR UNDER WYOMING CASELAW?"

This appeal is taken from a conviction of murder in the second degree charged in violation of § 6-2-104, W.S.1977. ¹ After the return of a guilty verdict by the jury, the appellant was sentenced to a term of not less than 20 years nor more than 27 years in the Wyoming State Penitentiary.

There is no question raised in this case about the fact that the victim, Cary Connelly, was killed by a stab wound and the fact that the stab wound was inflicted by the appellant. At least from the time of the first contact by law enforcement officers the appellant took the position that the homicide had been committed in self-defense by him while he was acting under a belief that his life was in danger. The appellant so testified at the trial of this case, and consequently the only question really presented in the entire case was whether the homicide was justified.

The underlying facts may be briefly stated. On the night that Cary Connelly was killed a party was being held in a house in the southern part of the City of Cheyenne, Wyoming. The imbibing of beer at this party was extensive, as is probably true at most "keggers," which is the term used to describe a party in which the refreshments consist primarily of a keg of beer. During the course of the evening the appellant and Connelly quarreled; this quarrel apparently evolved from Connelly's assertion that the appellant had taken his cigarettes. The testimony of the witnesses describes several confrontations between the two and sets forth assaults and simple batteries involving these two. These consisted of such events as the swinging of a dog chain by the appellant at Connelly; the pushing of the appellant by Connelly, even down to the ground; and one witness saw a black pot being swung by the appellant. At one point during the evening the appellant went to his own home. It appears that he wanted to get his baseball bat to defend himself. Connelly and another person apparently prevented him from entering his own home, and he returned to the party. During the course of the evening one witness saw the appellant with a knife in his hand, and at that time the appellant indicated he was going to inflict revenge upon a person he believed had called him a derogatory name while he was using the bathroom.

As we have noted, the appellant admitted the stabbing. The eye-witness who observed the most about the killing stated that Connelly was standing by the television in the living room and that the appellant went into the kitchen. He was not followed into the kitchen by Connelly. In the kitchen the appellant opened a drawer and got out a knife. He twirled it and then went back into the living room. He there went toward Connelly and stabbed him in the chest. After Connelly fell to the ground he stabbed him again in the buttocks. The same witness had described an earlier event during the course of which the appellant said to the victim, "you're dead."

While the record is somewhat incomplete with respect to the physical layout of the premises where the killing occurred, it does appear that from a porch there were entrances into the kitchen and into the living room. The living room, where the killing occurred, and the kitchen were connected by a doorway. The clear inference from the record is that the appellant was not under attack by the victim when he went into the kitchen to obtain the knife, and he could have exited the house by means of the door from the kitchen onto the porch. The record also establishes that the appellant stood only about 5 feet 3 inches and weighed about 90 pounds, while Connelly weighed about 190 pounds, which were distributed over a 6 foot 3 inch frame. The disparity in physical size was impressive to all.

It is in the context of this background that the appellant insists that he committed the homicide in self-defense. While our reading of the record leaves us skeptical as to the validity of the defense under these circumstances, we recognize that it was the duty of the district court to give an instruction on self-defense because that was the appellant's theory of the case. We previously have held that a defendant in a criminal case is entitled to an instruction as to his theory of the case if there is evidence to support it. Grable v. State, Wyo., 649 P.2d 663 (1982); Goodman v. State, Wyo., 573 P.2d 400 (1977); Benson v. State, Wyo., 571 P.2d 595 (1977); Thomas v. State, Wyo., 562 P.2d 1287 (1977); Blakely v. State, Wyo., 474 P.2d 127 (1970); and State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947).

While the only real evidence in the record of any circumstances that would suggest self-defense comes from the testimony of the appellant, that is sufficient to raise the issue of self-defense consistent with his theory.

The instruction on self-defense which was given by the district court was taken from the Wyoming Pattern Jury Instructions Criminal, No. 5.207, and it reads as follows:

"Even if the defendant had reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, he was justified in using deadly force to repel the danger only if he retreated as far as he safely could before doing so. The law requires a person to retreat rather than to take the life of his adversary if there was a convenient mode of retreat without increasing his peril or apparent peril. To excuse a failure to retreat, it is necessary the defendant's peril would be increased, or that it reasonably appeared that it would be increased by retreat. If you find that the defendant could have safely retreated but failed to do so, the defendant cannot rely on the justification of self defense."

This instruction was objected to by the appellant, and he proposed Instruction No. D, which reads as follows:

"The defendant has a right to go where he will. If the defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of serious bodily harm, and that deadly force was necessary to repel such danger, he was not required to retreat from a place where he is legally entitled to be. He was entitled to stand his ground and use such force as was reasonably necessary under the circumstances to save his life or protect himself from serious bodily harm.

"The defendant had no duty to retreat if he had even the slightest doubt that he could retreat in complete safety. Even the slightest doubt, if reasonable, was enough to justify his standing his ground. In determining whether the defendant's doubt was reasonable you may make every allowance for the situation in which Steve Garcia was placed by Cary Connelly."

Appellant contends that his proffered instruction represents what he urges to be a majority view in other jurisdictions in the United States. He relies on such cases as State of Arizona v. Jackson, 94 Ariz. 117, 382 P.2d 229 (1963); People v. Clark, 130 Cal.App.3d 371, 181 Cal.Rptr. 682 (1982); Boykin v. People, 22 Colo. 496, 45 P. 419 (1896); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919); State v. Hatch, 57 Kan. 420, 46 P. 708 (1896); State v. Gardner, 96 Minn. 318, 104 N.W. 971 (1905); State v. Bartlett, 170 Mo. 658, 71 S.W. 148 (1902); State v. Sunday, Mont., 609 P.2d 1188 (1980); State v. Grimmett, 33 Nev. 531, 112 P. 273 (1910); State v. Abbott, 36 N.J. 63, 174 A.2d 881 (1961); Foster v. State, 8 Okl.Cr. 139, 126 P. 835 (1912); and Fowler v. State, 8 Okl.Cr. 130, 126 P. 831 (1912). In his brief the appellant quotes from Mischke, Criminal Law--Homicide--Self-Defense--Duty to Retreat, 48 Tenn.L.Rev. 1000 (1981). We are impressed with...