Hernandez v. State, 98-37
| Decision Date | 06 April 1999 |
| Docket Number | No. 98-37,98-37 |
| Citation | 976 P.2d 672 |
| Parties | Robert HERNANDEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia L. Hackl, State Public Defender; and Donna D. Domonkos, Appellate Counsel, for Appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker-Musick, Assistant Attorney General, for Appellee.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR, * JJ.
Appellant Robert Hernandez appeals from the judgment and sentence which was entered after a jury found that he was guilty of aggravated assault.
We affirm.
Hernandez submits four issues for our review:
ISSUE I
Was it ... plain error for the trial court to fail to fully instruct the jury on the "justification to act" component of self-defense and to not instruct the jury on the "amount of force" portion of self-defense?
ISSUE II
Did the trial court commit plain error when it permitted the introduction of improper victim impact testimony?
ISSUE III
Did the trial court commit plain error when it permitted the introduction of evidence that Appellant was a drug dealer and a former gang member?
ISSUE IV
Was Appellant denied effective assistance of counsel?
On February 12, 1997, Hernandez went to a concert at a Rock Springs bar with William Morgan and Dean Domson. Morgan decided that he wanted drugs and asked Hernandez to get them for him. He gave Hernandez his wallet, and Hernandez left the bar to procure some cocaine.
At approximately 11:00 p.m., even though Hernandez had not yet returned, Morgan and Domson decided to leave the bar because the concert was over. As the men were driving out of the parking lot, they saw Hernandez drive into the parking lot. They pulled over, and Morgan got out of their vehicle, called Hernandez a name as he approached him, and asked for his wallet. Hernandez responded with an equally harsh name and told Morgan that he had not given him enough money to buy the cocaine. Hernandez got out of his vehicle and slapped Morgan across the face with the wallet. Morgan shoved Hernandez and punched him in the forehead, knocking Hernandez to the ground. Morgan took his jacket off, and the two men began fighting. Domson finally pulled Morgan off Hernandez because it looked like Morgan was seriously hurting Hernandez. Morgan and Domson argued for a short time about whether Domson should have interfered in Morgan's business, and Domson told Morgan that he was leaving because he did not want to get into trouble with the police.
According to Morgan and Domson, they decided to leave, and, when they started to get into Domson's vehicle, Hernandez stabbed Morgan in the chest with a knife. Hernandez did not testify, but he told police officers who did testify that, while Morgan and Domson were arguing, he opened his pocket knife. Hernandez told the officers that he warned Morgan that he had a knife but Morgan rushed at him anyway and was stabbed. Regardless of which version is true, Morgan apparently grabbed Hernandez's wrist after he had been stabbed, and Domson took the knife. While Morgan was being tended to, Hernandez demanded that his knife be returned. Domson complied, and Hernandez left the parking lot. An ambulance was summoned, and Morgan was taken to the hospital where he was treated for a punctured left lung and for a cut in the sack around his heart.
Hernandez was arrested that night and charged with aggravated assault in accordance with Wyo. Stat. Ann. § 6-2-502(a)(ii) (Michie 1997). A jury convicted Hernandez of aggravated assault, and the trial court sentenced him to serve a term in the Wyoming State Penitentiary of not less than seven years nor more than ten years with credit being given for the time that he had already served. Hernandez appeals to this Court.
Hernandez contends that the trial court committed plain error when it failed to fully instruct the jury on the law of self-defense. He maintains that the full instruction addressing the "justification to act" in self-defense and the "amount of force" which is allowed should have been submitted to the jury. The state counters that the instructions adequately and sufficiently explained the law of self-defense.
The district court has "wide latitude in instructing the jury; and as long as the instructions correctly state the law and the entire charge to the jury adequately covers the issues, reversible error will not be found." Baier v. State, 891 P.2d 754, 756 (Wyo.1995). We read the instructions in their entirety to determine whether they correctly state the law and adequately cover the issues. Id. "The duty of the trial court is to present in the instructions to the jury the law applicable to the issues actually raised by the evidence." Id. A defendant has the right to have instructions given on his theory of the case or on his defense if the instructions sufficiently inform the jury of the theory of defense and if competent evidence supports the law expressed in the instructions. Id.
The trial court gave the following instructions regarding the law on self-defense:
The elements of the crime of Aggravated Assault and Battery, as charged in this case, are:
1. On or about the 12th day of February, 1997
2. In the County of Sweetwater, and State of Wyoming
3. The Defendant, ROBERT HERNANDEZ
4. Knowingly caused
5. Bodily injury to William Morgan
6. With a deadly weapon
7. And was not acting in self-defense.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the Defendant guilty.
If, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.
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 right of self-defense exists only as long as the real or apparent threatened danger continues to exist. When the danger ceases to appear to exist, the right to use force in self-defense ends.
To justify acting in self-defense, it is not necessary that the danger was real, or that the danger was impending and immediate, so long as the defendant had reasonable cause to believe and did believe these facts.
Wyoming law requires that, prior to resorting to deadly force, a person has a duty to pursue reasonable alternatives under the circumstances, and that among those reasonable alternatives may be the duty to retreat.
Hernandez claims that Instruction No. 16 should have included a sentence which stated:
"If those two requirements are met, acting in self-defense is justified even though there is no intention on the part of the other person to do the defendant harm, nor any impending and immediate danger, nor the actual necessity for acting in self-defense."
He maintains that this information was vital to his defense because, without it, the jury was not aware it could find that he acted in self-defense even though the evidence showed that Morgan did not intend to harm him, that no impending and immediate danger actually existed, or that no actual necessity for acting in self-defense existed.
891 P.2d at 757. Baier argued that the trial court did not adequately instruct the jury on the law of self-defense because it did not explain that actual danger was not required to justify a person acting in self-defense. 891 P.2d at 758. We held that the instructions, taken as a whole, informed the jury of the law of self-defense. Id. We also stated:
The law of self-defense finds its foundation in the concept of necessity. The right to defend oneself, and the amount and type of force used, is relative to what is reasonably necessary under the circumstances. It is for the jury to determine whether a defendant reasonably perceived a threat of immediate bodily injury under the circumstances and whether the defendant defended himself in a reasonable manner. Thus, the jury must evaluate the totality of the circumstances and evaluate all of the defendant's options in protecting himself from such a perceived threat of harm.
Id. (citations omitted).
In the case at bar, the instructions, when read together, sufficiently informed the jury that the law of self-defense in Wyoming is a defense of necessity which is evaluated under the totality of the circumstances and in light of what is reasonable and appropriate. The jurors were instructed that one who has reasonable grounds to believe another will attack has the right to arm himself for the purpose of resisting the attack; that the right of self-defense exists so long as the real or apparent danger continues to exist; that self-defense was justified if the defendant reasonably believed the danger was real or impending even if it was not; and that the amount of force allowed may rise to the level of...
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