Jansen v. State, 93-108

• Decision Date: 04 April 1995
• Docket Number: No. 93-108,93-108
• Citation: 892 P.2d 1131
• Parties: Curtiss JANSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1131

892 P.2d 1131

Curtiss JANSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-108.

Supreme Court of Wyoming.

April 4, 1995.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Cheyenne, and Lee E. Christian, P.C., Fort Collins, CO, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Mary Beth Wolff, Asst. Atty. Gen., for appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY and TAYLOR, JJ.

THOMAS, Justice.

The primary issue that must be addressed in this case is whether the evidence presented at trial justifies the conviction of Curtiss Jansen (Jansen) of first degree murder under the felony murder doctrine. The jury found Jansen guilty of first degree murder, and his main argument to this court is that the evidence does not suffice to implicate him in any felony associated with the death of the victim. Jansen also incorporates other claims of error including prejudicial jury instructions; the introduction of an involuntary confession; the denial of his motion for a bill of particulars; error in preventing counsel from participating in the voir dire examination of jurors so as to uncover bias; prejudicial conduct on the part of the trial judge; and denial of effective assistance of counsel. We have scrutinized the evidence in the light of our prior felony murder cases, particularly Bouwkamp v. State, 833 P.2d 486 (Wyo.1992). We are satisfied the evidence is sufficient, and there was no other reversible error. The judgment and sentence of the trial court is affirmed.

In the Brief of Appellant, the following issues are asserted:

I. Was there sufficient evidence to convict Jansen?

II. Did numerous fundamental errors in instructing the jury prejudice Jansen?

III. Was Jansen's confession involuntarily given?

IV. Was the trial court's denial of Jansen's motion for bill of particulars error?

V. Did the trial court err in preventing defense counsel an opportunity during voir dire to uncover potential juror bias?

VI. Did the trial judge's prejudicial conduct deny Jansen a fair trial?

VII. Was Jansen denied effective assistance of counsel?

In its Brief of Appellee, the State of Wyoming states the issues to be:

I. Did sufficient evidence exist to convict appellant?

II. Was appellant's confession voluntary?

III. Did appellant receive a fair trial?

The doctrine of felony murder is not novel in this jurisdiction. Bouwkamp; Roderick v. State, 858 P.2d 538 (Wyo.1993); Cook v. State, 841 P.2d 1345 (Wyo.1992); Garcia v. State, 774 P.2d 623 (Wyo.1989); Engberg v. State, 686 P.2d 541 (Wyo.1984), cert. denied, 469 U.S. 1077, 105 S.Ct. 577, 83 L.Ed.2d 516 (1984); Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984); Murray v. State, 671 P.2d 320 (Wyo.1983); Cloman v State, 574 P.2d 410 (Wyo.1978); Jones v. State, 568 P.2d 837 (Wyo.1977); Richmond v. State, 554 P.2d 1217 (Wyo.1976) reh'g denied, 558 P.2d 509 (1977); State v. Lindsay, 77 Wyo. 410, 317 P.2d 506 (1957); State v. Best, 44 Wyo. 383, 12 P.2d 1110 (1932); Clay v. State, 15 Wyo. 42, 86 P. 17 (1906). Of these several cases, a number of them, like this case, involved the offense of robbery as the underlying offense. Bouwkamp; Cook; Engberg; Osborn; Cloman; Jones; Richmond; Best; Clay. There exists a relative wealth of precedent against which this case may be weighed.

From this series of cases, these applicable principles may be garnered. First, the sequence of events is not important so long as the homicide occurs in what can be identified as one continuous transaction. Bouwkamp; Cloman. Second, in Jones, 568 P.2d at 846, we said:

If two or more persons are jointly engaged in the perpetration of or an attempt to perpetrate a robbery, and a human being is killed during its commission by any one of the persons so jointly engaged, then each of the offenders are equally guilty of the homicide.

Third, in Lindsay, 317 P.2d at 510, we said there are:

[T]hree sets of circumstances under which a person may properly be convicted of the crime of murder in the first degree: First, if he commits the act purposely and with premeditated malice; second, if he commits the act in the perpetration of certain specified other crimes; and third, if he commits the act in the attempt to perpetrate these specified crimes.

Summarized, the applicable rule here is, if Jansen and his cohorts were jointly engaged in the perpetration of a robbery and the victim was killed in the course of a continuous transaction encompassing the robbery, Jansen is subject to conviction and punishment for first degree murder.

The events that led to the death of the victim in this case are aptly captured in Osborn, 672 P.2d at 794 (emphasis added):

Each felony murder involves not one but two crimes of violence. Its victims are the innocent. It is a crime of wanton and loathsome predators on a law-abiding society and recognized by the legislature as such.

Mark Thompson (Thompson), one of the participants in the crime, cooperated with the State and testified at trial. His testimony establishes the background of the charges against Jansen.

The record discloses Jansen, Thompson, and David Hightower (Hightower) became acquainted in March of 1992. They met at two facilities in Denver that catered to transient and homeless people, the Blake Street Mission and the St. Francis Shelter. About the middle of March of that year, they arrived in Casper on their way to Seattle, Washington, where they hoped to get work on a fishing boat. Two of them received food stamps in Casper which they sold for cash, at half their value, using the proceeds to buy liquor.

By March 26, 1992, the three had become acquainted with the victim, another homeless person. The four men spent that day drinking, eating, and sharing drugs at a site on the bank of the North Platte River known as Hobo Jungle. Their drinking was extensive and included two quarts of beer, a fifth of vodka, and two pints of vodka. Thompson testified each of them had injected vodka intravenously that day. The victim was under treatment for psychotic illness, and he shared prescription drugs with the others, including Librium (a tranquilizer), Imipramine (an anti-anxiety, muscle-relaxant tranquilizer), and Lithium Carbonate (used for the treatment of manic depressive psychoses or bipolar affective disorders). ¹

At the inception of the events leading to the victim's death, Hightower began to encourage Thompson to kick the victim, while at the same time encouraging the victim to kick Thompson. An affray followed during which Hightower and Thompson kicked the victim in the head several times. Thompson testified Jansen sat on a rock, watching the beating of the victim while "laughing, pretty much enjoying himself." The victim apologized to his assailants and asked them to stop. They did stop, but later, when the victim apologized to Hightower again, Hightower flew into a rage. Hightower and Thompson resumed kicking and stomping on the victim's head until he was unconscious. Jansen remained in his vantage point on the rock watching.

After eight or ten kicks, Thompson stopped Hightower. Thompson then took the cigarette he was smoking and put it in the victim's pant pocket, "[j]ust to give him a hot seat." Thompson testified, at that point, the victim became semiconscious, and Hightower told the victim to give him his Arizona State University jacket or Hightower would beat him again. The victim removed the jacket and handed it to Hightower who in turn handed it to Jansen. Jansen then took the victim's backpack, emptied out its contents, and put his belongings into it. At the same time, Hightower went through the victim's wallet.

At that point, the victim again lapsed into unconsciousness. Thompson testified Hightower then stuffed some of the papers removed from the backpack up the victim's pant leg, and one of them lit the papers on fire. Thompson and Jansen each took hold of one of the victim's legs and dragged him on his back over the rocks so they could throw him in the river. This doused the fire and revived the victim. Hightower then threw a rock at the victim submerging him in the water. Thompson and Jansen joined in throwing rocks at the victim who was trying to reach the shore. When the victim did reach the shore, Hightower hit him squarely in the back with a rock and declared, "[w]e are going to kill you * * *." Thompson then placed part of a wheel from a railroad car weighing fifty-four and one-half pounds of solid steel around the victim's neck as he lay partially submerged, but with his head out of the water. All three then proceeded to cover the victim with forty to fifty rocks which were estimated to weigh some 400 pounds. They went back to their camp and continued to drink for about fifteen minutes. When they got up to leave, they could hear the "gargling" sound of the victim's breathing as they left.

Jansen's version of these events is gleaned from a statement given to investigating officers, together with his testimony at trial. From the witness stand, Jansen admitted he had watched the violence of the first beating by Thompson and even helped wipe the blood from the victim's head. He testified he had seen the victim being thrown into the river, and Hightower had asked him if he wanted the victim's jacket. He described the violence surrounding the second beating, and he did offer conflicting testimony with respect to the victim's Arizona State University jacket, testifying Hightower had traded a pint of vodka for the jacket. In his testimony, he claimed his recollection was primarily based upon what Thompson had told him about these events because he had been in an alcoholic blackout when they occurred.

From his statement, the following information is summarized. Jansen accepted the Arizona State University jacket, after Hightower asked him if he wanted it,...