Hicklin v. State, 4399

CourtUnited States State Supreme Court of Wyoming
Citation535 P.2d 743,79 A.L.R.3d 1050
Docket NumberNo. 4399,4399
PartiesRichard HICKLIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
Decision Date06 May 1975

Page 743

535 P.2d 743
79 A.L.R.3d 1050
Richard HICKLIN, Appellant (Defendant below),
The STATE of Wyoming, Appellee (Plaintiff below).
No. 4399.
Supreme Court of Wyoming.
May 6, 1975.

Page 744

W. A. Smith, Lander, for appellant.

David B. Kennedy, Atty. Gen., and Thomas A. Jones, Sp. Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK and PAPER, JJ.

RAPER, Justice.

The court is asked in this appeal to review, set aside the sentence and terms of probation imposed upon the defendant-appellant and permit him to withdraw his plea of nolo contendere.

The defendant's immediate troubles began when, after earlier indulging in the consumption of intoxicating liquor, he went to the Valley View Lounge and purchased a drink at a time when the bar was not open to the public. He became insulting, belligerent and threatening with the lady bartender and complainant, pulled out a pocket knife and threatened to cut off her head. She became frightened, threw Purex in his face and was then able to momentarily escape by jumping over the bar. His uncle came in and talked him away.

Following that episode the defendant returned to his farm, broke up some things in the house, and killed the family Siamese cat by kicking or throwing it. Shortly thereafter, two sheriff's deputies showed up, apparently upon the complaint of Ellen Thompson that she had been assaulted with a knife.

Upon arriving, the deputies went to the door and knocked, where they were met by the defendant with a high-powered rifle. He pointed it at them and they were ordered off the property. They backed away with him waving the rifle first at one and then the other. They hustled into their vehicle and started to move out. While that was transpiring, a highway patrolman showed up on the scene. He was behind his patrol car with pistol drawn but afraid to shoot for fear the two deputies might get shot. The deputies once inside their automobile, radioed the highway patrolman to pull back; he did so and the defendant fired in front of the patrolman's vehicle, the bullet striking the ground a

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few feet away. There was another shot by defendant but where it went could not be ascertained.

The officers pulled away to a point a couple of hundred yards distant and watched the defendant. More help was called and during that time Mr. Hicklin obtained a horse, rode it around in the area, from time to time dismounting and pointing his rifle at the officers. As he moved closer, they would back up trying to stay out of rifle range. No more shots were fired during this extravaganza and apparently Hicklin, when completely surrounded by other arriving law enforcement personnel, put his rifle down and submitted himself to arrest.

As a result of all this conduct on the part of the defendant, as reconstructed from the record, and following necessary preliminary proceedings, two informations were filed in the district court, one charging him with the assault on the lady bartender and one of three counts arising out of the initial confrontation and shooting with the law enforcement officers, as violations of § 6-70(B), W.S.1957, 1973 Cum.Supp. 1

At the arraignment proceedings, with retained counsel present, after being fully advised of his constitutional rights, the defendant, through his attorney, entered a plea of not guilty, not guilty by reason of insanity at the time of the commission of the crime and not triable by reason of insanity since the commission of the crime. Pursuant to § 7-241, W.S.1957, 1973 Cum.Supp., as a result of the pleas entered at this time, the defendant was committed to the Wyoming State Hospital at Evanston for observation and report back to the court by the staff and by such doctors and psychiatrists as the State of Wyoming might employ or as the defendant himself might employ.

The staff of the Wyoming State Hospital responded that at the time of the offenses and on a previous occasion in 1971, the defendant, following the ingestion of alcohol, underwent an acute change in personality and behavior, characterized by paranoid thinking, irrationality, impaired control of aggressive impulses, suicidal and homicidal threats, loss of social judgment, partial amnesia, and fragmentation of normal behavior patterns. This condition is medically classified as pathologic intoxication. It was not the opinion of the staff of the Wyoming State Hospital that he was suffering from such a defective reason as to cause him to lack substantial capacity to understand the nature and quality of his actions or to differentiate between right and wrong; he was then presently capable of understanding the proceedings against him, his relation to them and had an ability to cooperate with his defense. The diagnosis was periodic excessive drinking, pathologic intoxication (acute brain syndrome manifested by psychosis), now recovered.

The recommendations were that:

'(1) The interests of society as well as this man and his family, would not seem to be served by his being incarcerated.

'(2) It is imperative thta this defendant remain totally abstinent from alcohol as a condition of being a free agent.

'(3) There are drugs which are of value in prevention of alcohol use by virtue of their causing the subject to develop an acute, physically distressing illness (acetaldehyde syndrome) after ingestion of even small amounts of alcohol. The best known of these agents is disulfuram ('Antabuse'); another is citrated calcium carbamide (Temposil).'

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It was further recommended that the medication be administered for a period of at least one year under a physician's supervision and that the medication be given to him daily by his wife or other reliable person and that complete alcohol abstinence be conditions of suspended sentence or probation.

After the report of the staff of the state hospital was given, the defendant decided to change his plea to nolo contendere to the count of assaulting the lady bartender with a knife. The State decided that if he was willing to do that, it would dismiss the other information containing three additional counts of assault. At a proceeding held to consummate those decisions, the trial judge reviewed at length the defendant's right to a jury trial and all his other constitutional safeguards. It was explained that his plea of nolo contendere would be considered as a plea of guilty and, if made, the court would deal with the defendant in precisely the same way as if it were a plea of guilty. The court likewise made it clear that it had not been a party of any plea bargaining between the defendant's attorney, the prosecutor or the sheriff or anybody else regarding the disposition of the case. The defendant was in no way enticed to change his plea. A presentence investigation and report was thereupon ordered by the court and received; it recommended probation with complete abstinence from alcohol.

On the day set for sentencing, and upon the court being convened, the trial judge announced that in addition to having considered the presentence investigative report, he had talked with the undersheriff for Fremont County with respect to an incident that had occurred two or three years previously when the defendant had been drunk and gotten into a squabble with his wife. After Hicklin on an extension telephone heard the calling the undersheriff, he went outside, pulled a tractor across the road to barricade admittance and went back into the house where, after further bickering with his wife and threats, more or less required her to shoot him in self defense. The defendant recovered from that occurrence and lived with his wife ever since.

At the sentencing hearing, there were present the victim of the knife assault and all those officers involved in the shooting fracas that took place at the defendant's farm, resulting in the charges against the defendant for the additional three incidents of assault with a dangerous weapon; all testified. The defendant's counsel was permitted cross-examination and, after hearing all of that evidence, the defendant's counsel at the close of the evidence presented the testimony of defendant's wife to tell of family background and her willingness to forgive and assist her husband. She, on cross-examination by the state prosecutor, developed more details of defendant's behavior when she felt compelled to shoot him. On that occasion, he was drunk, rolled her out of bed and threatened to stomp her; she ran to the barn to call the sheriff and then returned to the house. The defendant pulled down a pole lamp, hit her across the legs, threatened to kill her, she panicked, ran out of the house again and it was then she got the .22 rifle. He moved to take it from her, saying, 'I guess I will take that gun away from you and use if on you.' She let him have a .22 slug in the belly. At the close of Mrs. Hicklin's testimony, defendant's counsel said they had nothing further by way of evidence to offer and declared, 'We have no way to contradict it,' and argued for leniency. The defendant was offered an opportunity to personally speak on his own behalf but he declined.

After a long, detailed discussion of why he was doing what he did, the trial judge fined the defendant $500.00, sentenced him to the Wyoming State Penitentiary for a term of not less than three years nor more than six years and, then, without suspending the $500.00 fine, did suspend the penitentiary sentence and place the defendant on probation on the following terms:

'1. That you will immediately be delivered to the custody of the Sheriff of Fremont County, Wyoming, and

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will serve a period of one month in the Fremont County jail, all in solitary confinement, to give the Court an opportunity to have further examinations conducted and for further consultations between you and psychiatrists.

'2. That you accept counseling from Fremont Counseling Service while you are in such confinement, and that you be examined by...

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    ...federal counterparts, authority interpreting the federal rules is relevant to our application of the Wyoming rules. Hicklin v. State, Wyo., 535 P.2d 743, 748 (1975).16 We need not address whether Dr. Klatt's testimony concerning SP's out-of-court statement was properly received into evidenc......
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    ...Rule 32(d), F.R.Cr.P. Federal case law will therefore have relevance in the interpretation of the Wyoming rule. Hicklin v. State, Wyo., 535 P.2d 743, 79 A.L.R.3d 1050 (1975). In Ecker v. State, Wyo., 545 P.2d 641, 642 (1976), this court had occasion to examine the rule and held: "Withdrawal......
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