Goodman v. State

Citation573 P.2d 400
Decision Date07 December 1977
Docket NumberNo. 4706,4706
PartiesCharles E. GOODMAN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtUnited States State Supreme Court of Wyoming

Dallas J. Laird and Gary L. Shockey, Casper, for appellant.

V. Frank Mendicino, Atty. Gen., Marilyn S. Kite, Senior Asst. Atty. Gen., Cheyenne, and Daniel M. Burke, County and Pros. Atty., Natrona County, Casper, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

ROSE, Justice.

Charles E. Goodman appeals from judgments and sentences flowing from jury verdicts finding him guilty of murder in the first degree and killing an unborn child by assault on the mother. We will reverse the verdict and judgment of first-degree murder of Donna Poole. The verdict and judgment entered herein finding the appellant guilty of killing an unborn child will stand affirmed. The questions Goodman brings here are:

(1) whether the failure to give certain requested instructions and the giving of certain erroneous instructions constituted a denial of due process of law and effective assistance of counsel;

(2) whether appellant was denied due process of law by the court's restriction of expert testimony and by the admission into evidence for substantive purposes of a letter discrediting the expert;

(3) whether appellant was denied due process of law in that items not received in evidence were present in the jury room during deliberation;

(4) whether the admission into evidence of a Federal Bureau of Investigation report violated appellant's right to be confronted with the witnesses against him;

(5) whether sentences on both convictions put the defendant in jeopardy twice for the same offense;

(6) whether the admission into evidence of an enlarged color photograph of a dead fetus was without proper foundation and without probative value and was extremely prejudicial;

(7) whether a weapon and the results of tests performed on it should have been suppressed; and

(8) whether the guilty verdicts were supported by sufficient evidence and were in conformity to law.

We will, in this opinion, find reversible error in the court's refusal to give an intoxication instruction to the jury in the first-degree murder case. We will find no error in any of the other assignments called up by the appellant.

FACTS

Background facts, excepting only those which concern themselves with the appellant's alleged intoxication, are these:

On June 12, 1975, Dale Fitzsimmons heard arguing, shouting and a rifle shot apparently emanating from a house on Coulter Street in Casper, Wyoming, from which Charles Goodman soon emerged carrying a rifle, which he placed in a car. After once re-entering the house, he returned to the automobile and drove away. Fitzsimmons called the police and, upon arrival, they discovered the body of a young, pregnant woman who, it was later learned, was Donna Poole.

Later that day, Goodman was arrested at the Townsend Hotel Bar in Casper, at which time and place he was searched and handcuffed. Upon departing with Sergeant Ernest L. Johnson of the Casper Police Department from the hotel, which was one block from where Goodman's car was parked across the street from the police station, the officer advised the defendant of his constitutional rights. As they were walking down the street, Goodman pointed out his car to Johnson and expressed concern for his dog which was in the vehicle. The defendant asked Johnson to roll the window down so the dog would have some fresh air and, while complying with Goodman's request, Johnson inquired where the rifle was, whereupon the defendant informed the officer that it was just behind the seat. Johnson, without further ado, thereupon took possession of the rifle and carried it across the street to the police station while, at the same time, accompanying Goodman there.

Upon their arrival at police headquarters some two hours after the shooting, Johnson directed the defendant to an interview room, again advised him of his rights, and, together with the County Attorney, undertook to interrogate him concerning the death of Donna Poole. With certain deletions, tape recordings and a transcript of this interview were received in evidence.

During the interrogation, Goodman stated that, after a brief argument, he shot Donna, the girl with whom he was living and who was pregnant by him. He told the police that Donna screamed that she was going to "fix" him and they both reached for and took hold of a gun, which both of them knew to be loaded. Defendant related that the weapon was located in a corner of the room behind a door and he said it At trial, various witnesses testified that a bullet entered the wall of a room at 2644 Coulter Drive at a distance of five feet, eight and five-eighths inches from the floor.

was kept loaded in response to threats by individuals with whom he had previously had an altercation. To the best of Goodman's recollection, the gun discharged in the struggle for its possession, the bullet striking Donna in the right temporal portion of the head killing her, with the resulting death of her unborn child.

Delma R. Winkelvoss, an employee of the Federal Bureau of Investigation, testified that she was a fingerprint specialist and that she did not find any prints on the rifle. Neither did she observe any smudges on it.

Richard E. Schmidt, another Federal Bureau of Investigation employee, testified that he worked in the firearms identification branch. He examined the rifle and found that it operated normally. No gunshot residue was found on the victim's clothing, which, he opined, would be present if the rifle had been fired at a distance of approximately one foot from the victim's head assuming the weapon was pointed in that direction.

Dr. Charles E. Wood, an obstetric gynecologist, testified that Donna Poole had been his patient. It was the doctor's opinion that her baby was alive in her womb when she was killed.

Sergeant Johnson, who had arrested Goodman, testified that he had participated in further investigation of the incident and that in his judgment the door behind which the rifle had been kept would have had to be completely open when the rifle discharged. He testified further that his investigation revealed that only one shot was fired in the incident resulting in Donna Poole's death.

Patty Jo Bellamy testified that she saw Goodman hit a woman with whom he was arguing on June 10, 1975, at a house on Coulter Drive. Mary Hutsell testified that on June 10, 1975, Goodman grabbed a woman by the hair and propelled her toward the same house.

Dr. Gregory Brondos, a pathologist, performed an autopsy on Donna Poole and her unborn child. He found bruises on her left arm and at her knees. Those on her arm were consistent with fingermarks. From finding hamburger in her esophagus and stomach, he concluded that she had been eating a hamburger within minutes of her death. He also stated that he found chewing gum in her esophagus.

FACTS CONCERNING THE ISSUE OF INTOXICATION

In addition to the fact that defendant's alleged intoxication was mentioned on voir dire and, according to the briefs of the parties, also in closing argument, relevant facts and evidence which bear upon defendant's ingestion of alcohol and his actions before, during and after the shooting of Donna Poole are these:

In his statement given to the police two hours after the shooting, which occurred at about 3 p. m., the defendant testified concerning his intake of alcoholic beverage since 10 a. m.:

"Q. Okay, let's go back to today after you got through drinking at the Townsend. How much did you have to drink?

"A. I drank a lot.

"Q. How much?

"A. Ten-twelve drinks of Millers, plus eight or nine drinks of Walkers and Coke. I drink that all the time."

He had at least two more drinks after the shooting and before he was arrested immediately after which he gave his statement to the police.

The defendant's own appraisal of his state of intoxication varied. At one point he said, when referring to how much alcohol he had consumed and whether or not he was aware of his actions on the day in question:

"A. Well that's mellow.

"Q. Mellow? You mean slobbering drunk?

"A. No.

"Q. Do you know what you're doing?

"A. At times.

"Q. Now, what do you mean by that?

"A. Well, I mean if I set there long enough, I'd be drunk.

"Q. But you didn't drink enough to get drunk today did you?

"A. Well here wait a minute. I'm drunker now than than I was this morning. I knew what I was doing. An argument started. She grabs the gun, and it goes off. I don't know how, but it goes off. Solo." (Emphasis supplied)

At about this point in the interrogation, the defendant said:

"Look, I'm not drunk and I'm tryin' to be honest. I wasn't doing a thing to her, I do know that. I do know cause the girl just tiptoes through the door."

When asked about his quarrels with Donna, he responded:

"I leave and I come back to town and I drink. I can drink a lot. In fact, I've drank a lot today. I can see nothing wrong with drinking as long as I control myself. And I do, most usually. And I did today. I thought I done good. It's just like when he walked in, I knew who he was. I didn't try to offer no resistance. I don't wanna cause no trouble."

When asked about the circumstances surrounding the shooting, the defendant testified with apparent clear recollection in response to some questions gave various conflicting interpretations concerning other facts about which he was asked and testified that after he and the victim started arguing he did not know what happened until she was lying on the floor. He said:

"She come in, we started arguing. I stood up and I cain't (sic) remember if I got my cup of coffee when I got there or anything. I know I got a cup of coffee. We started arguing back and forth when she got there. I don't know, things just got out of hand. I don't after that I really don't know what happened 'til she was laying on the floor."

When the interrogation...

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