Johns v. State

• Decision Date: 09 February 2018
• Docket Number: S-17-0122
• Citation: 409 P.3d 1260
• Parties: Donald Wesley JOHNS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

409 P.3d 1260

Donald Wesley JOHNS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0122

Supreme Court of Wyoming.

February 9, 2018

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General, Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, Justice.

* An order granting Ms. Olson's Motion to Withdraw was entered on December 13, 2017.

[¶1] A jury convicted the appellant, Don Wesley Johns, of the first-degree murder of his roommate, Don Wickersham. Mr. Johns appeals his conviction, arguing that the district court erroneously instructed the jury in multiple ways and that the court utilized an improper stepped verdict form. We affirm.

ISSUES

[¶2] Mr. Johns' issue statement is a blanket question of whether the district court properly instructed the jury; therefore, we re-state the issues to give them more specificity:

1. Did the district court properly instruct the jury regarding the law of self-defense and the duty to retreat?

2. Did the district court properly instruct the jury regarding the State's burden of proof regarding a "sudden heat of passion" in voluntary manslaughter?

3. Did the district court utilize an improper stepped verdict which prohibited the jury from considering "sudden heat of passion" as a mitigating factor?

4. Did the district court err when it did not provide the jury a definition of "recklessly" or "enhanced recklessness" within the instruction defining malice in second-degree murder?

FACTS

[¶3] During the afternoon and evening of August 29, 2015, Mr. Johns and Mr. Wickersham hosted a few people at their apartment while Mr. Johns received a tattoo from Shane Erickson. Among the guests were Mr. Erickson's fiancé, Jamie Geesy, Damian Gaylord, and Carmen Dimas. Although both Mr. Johns and Mr. Wickersham had been drinking alcohol, the witnesses described Mr. Johns as "belligerent," "loud," and "up in people's faces," while Mr. Wickersham was "laid back, really mellow" and "level headed." However, Mr. Johns and Mr. Wickersham argued with one another about the music being played at the party and Mr. Johns' rent payment. Mr. Johns was yelling and "getting crazy" and Mr. Wickersham told Mr. Johns that if he did not calm down and stop arguing he would need to leave. At one point in time, Mr. Wickersham asked Mr. Gaylord to be a "referee" between he and Mr. Johns. Mr. Wickersham left the apartment with Mr. Erickson and Ms. Geesy to buy more alcohol as a means of temporarily getting away from Mr. Johns.

[¶4] Sometime during the party, Mr. Wickersham began showing the guests some of his knife and sword collection. Ms. Geesy explained that Mr. Wickersham was simply showing the knives and was not acting in a threatening manner. This sentiment was shared by Mr. Erickson. Mr. Gaylord observed Mr. Wickersham "posture" towards Mr. Johns while he was holding two of the knives, but there was twenty feet between the two men and Mr. Gaylord did not consider Mr. Wickersham a threat to anyone at the party. Ms. Geesy and Mr. Erickson, however, did not recall seeing Mr. Wickersham "posture" or act otherwise threatening towards Mr. Johns. Ms. Geesy and Mr. Erickson left the apartment at approximately 8:00 p.m. Mr. Gaylord left the apartment by 8:45 p.m. Ms. Geesy and Mr. Gaylord both conveyed that they did not witness any physical altercations between Mr. Wickersham and Mr. Johns at the apartment.

[¶5] Later that evening, Michael Izatt, a resident in the apartment complex, was on his deck when he was approached by Mr. Johns. Mr. Johns took Mr. Izatt to the apartment and Mr. Izatt observed Mr. Wickersham lying face down on an ottoman. The two left the apartment and Mr. Johns asked Mr. Izatt if he could keep his belongings in Mr. Izatt's apartment. Mr. Izatt told him he could not, and Mr. Johns left. Mr. Izatt later returned to his deck and found an 18-pack of beer and a knife covered in blood. Mr. Izatt placed the knife in the beer box and put them in the garbage can behind the apartment complex. He did not call the police to report the incident.

[¶6] At approximately 9:00 p.m., Mr. Johns arrived at the home of Kelly Stanley, who lived four or five blocks from Mr. Johns' apartment. Mr. Johns was drunk, sweating profusely, and had a cut on his finger which was wrapped in a washcloth. He told Ms. Stanley that he needed help, he had gone too far, and that he had killed Mr. Wickersham. Ms. Stanley arranged a ride for Mr. Johns and then contacted her friend, Suzanne Thornton, and asked her to check on Mr. Wickersham. She did not call the police to report the situation.

[¶7] Ms. Thornton and Matt Epperson went to the apartment and found Mr. Wickersham's body. Mr. Epperson made an anonymous 911 call but emergency personnel were unable to find the location. In the meantime, Mr. Johns arrived at the home of his friend, Chris Keck. Mr. Johns told Mr. Keck that he had cut his finger with a box cutter, and the two spent most of the night trying to get the finger to stop bleeding.

[¶8] The next morning, another resident of the apartment complex went to Mr. Johns' apartment because water was leaking through the ceiling into the apartment below. Upon arrival, the resident found Mr. Wickersham's body with multiple puncture wounds

and immediately called 911. When the police arrived, they found blood throughout the apartment, a large sword in the bathtub, and the knife in the garbage can behind the house. Mr. Johns was arrested later that day after contacting the police. An autopsy showed Mr. Wickersham had suffered twenty-nine sharp force injuries of which twenty-four were stab wounds. He suffered seven injuries to his head and neck, fifteen to the torso and back, and seven to his extremities. Some of the injuries were consistent with wounds indicating that Mr. Wickersham had been trying to defend himself.

[¶9] The State charged Mr. Johns with one count of first-degree murder. The case proceeded to a jury trial where Mr. Johns' attorney asserted that, although Mr. Johns did kill Mr. Wickersham, he was acting in self-defense. The district court instructed the jury on the law of self-defense and included second-degree murder and voluntary manslaughter as lesser offenses on the verdict form in the event the jury did not find sufficient evidence of first-degree murder. The jury convicted Mr. Johns of first-degree murder and the district court sentenced him to life in prison without the possibility of parole. Mr. Johns filed a timely notice of appeal.

DISCUSSION

Self-Defense Instructions

[¶10] Mr. Johns argues that the jury instructions regarding self-defense were contradictory and confusing making it impossible for the jury to decipher the appropriate law regarding self-defense. He specifically takes issue with the following instructions:

Instruction No. 35

YOU ARE INSTRUCTED that if the Defendant, at his place of residence, had reasonable ground to believe, and actually did believe, that he was in imminent danger of death or serious bodily harm and that the use of deadly force was necessary to repel such danger, he was not required to retreat or to consider whether he could safely retreat. The Defendant 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.

Instruction No. 37

YOU ARE INSTRUCTED that in considering the claim of self-defense in this case, you must first determine whether the Defendant was the aggressor in this case or whether Mr. Wickersham was the aggressor in this case. Some sort of physical aggression or a threat of imminent use of deadly force is required before a person will be considered an aggressor. Verbal provocation without more is generally insufficient to justify an initial aggressor. If you find that the Defendant was the aggressor in this case, you should consider his duty under Instruction 38. If you find that Mr. Wickersham was the aggressor, you should review the Defendant's actions under Instruction 39.

Instruction No. 38

YOU ARE INSTRUCTED that even if the Defendant had reasonable grounds to believe and actually did believe that he was in imminent danger of death or serious bodily harm, the Defendant was justified in using deadly force to repel the danger only if he retreated as far as he safely could do before using deadly force. The law requires a person to retreat rather than to take the life of an adversary if there was a convenient mode of retreat without increasing his actual or apparent peril. To excuse a failure to retreat, it is necessary that 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.

Instruction No. 39

YOU ARE INSTRUCTED that prior to resorting to deadly force, a defendant has a duty to pursue reasonable alternatives under the circumstances. The Defendant may use deadly force only if necessary and must consider reasonable alternatives including retreating prior to using deadly force.

[¶11] With the exception of Instruction No. 35, each of these instructions was proposed in the State's pre-trial jury instruction packet, and none of the instructions were proposed by Mr. Johns. However, at the formal jury instruction conference the prosecutor specifically objected to the district court giving any self-defense instructions because Mr. Johns had not made a prima facie showing of self-defense:

[PROSECUTOR:] We object to self-defense instructions, as they have not met their prima facie case, in our view.

We object to the instruction that I think

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