Leitel v. State

• Decision Date: 25 May 1978
• Docket Number: No. 4868,4868
• Citation: 579 P.2d 421
• Parties: Edward James LEITEL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 421

579 P.2d 421

Edward James LEITEL, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4868.

Supreme Court of Wyoming.

May 25, 1978.

John V. Lake, Powell, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Richard H. Honaker, Asst. Atty. Gen., Cheyenne, for appellee.

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

ROSE, Justice.

For seven years prior to the incident with which we are here concerned, the appellant, Edward James Leitel, lived with Susan Lloyd in a relationship in which Susan described herself as Mr. Leitel's "common-law wife." They began having trouble in the last three years of this association because Leitel fell to keeping company with other women, and, on January 16, 1977, they commenced living in separate residences at Powell, Wyoming.

On January 22, 1977, Susan met and began dating John Stearns, which caused Leitel and Susan to have a serious argument on January 26, 1977 one week before the appellant shot and killed Stearns. Leitel, in his confrontation with Susan on the 26th, threw and shattered a glass against a window in Susan's home and slapped her around in a fit of temper. He also took some of his guns from the house, telling Susan that he was going to sell them. The next day he attempted to find her to apologize for his misbehavior.

The testimony of record reveals that, before the January 26 incident Susan had expressed fear that if appellant were to find her and John Stearns together he would kill them. However, there is no indication that the appellant threatened Stearns prior to the shooting on February 2, 1977. In fact, the record indicates that Leitel and Stearns were casual friends and had not had any prior confrontations because of Susan or for any other reason. Leitel did testify that he was aware of the fact that Stearns was never very far from a gun.

On February 2, 1977, appellant arrived at Susan Lloyd's home at 5:30 a. m. ostensibly to talk to her 9-year-old daughter. He offered to give Susan a ride to work and became irritated when she informed him John Stearns was going to pick her up. He still appeared upset when he called Susan that evening to tell her that he was driving to Byron, Wyoming, with another woman one Shirlea Hand.

Appellant, with Shirlea, Wayne Leitel (appellant's brother) and Susie Williams, arrived at the Byron Bar at 9 p. m. The evidence shows that he was in a "funny little mood"; and he testified that he felt like leaving the bar and being alone. The bartender heard him say to his brother, "I got something on my mind." Wayne Leitel testified that he discussed appellant's relationship with Susan but Stearns' name was not mentioned. Appellant said to his brother:

"I want to get out of here for a while. I want to think. I want to be by myself. I don't want to party tonight."

Wayne cautioned appellant not to do anything he would be sorry for, whereupon Edward Leitel left Byron for Powell. After arriving at Powell, appellant bought some sausage, placed it in the freezer and changed his clothes before going to see Susan. He did not, at this time, know Stearns was with her. Throughout the evening, appellant had done some drinking, but there was no evidence to the effect that he was drunk nor does he claim he was drunk.

Some time after 9 p. m. that evening, John Stearns and Susan were sitting in the living room of Susan's house when they were surprised by a fast-moving vehicle turning into the driveway. As he entered the driveway, appellant observed Stearns and Susan walk through the kitchen, and was upset because he did not expect to see Stearns there, and because Susan was dressed only in her nightgown. He grabbed his rifle and ran to the door. Appellant testified that it was then his intention to order Stearns out of the house, although the record is unclear with respect to whether he ever actually asked him to leave. He said he took the rifle because he felt Stearns was aggressive, even though he had never known him to act aggressively.

Susan testified Leitel was "angry" and "wild" when he entered the house, whereupon she grabbed the rifle, struggling with him three or four minutes, during which she received a badly cut hand. Appellant ordered Susan and Stearns to stand by a table in the kitchen; and while Stearns was attempting to calm the appellant, he asked, "What are you going to do? Kill me?" Appellant responded by threatening to kill all three of them, and, as Susan turned to go to the bathroom, appellant pulled the trigger, fatally wounding Stearns.

Appellant testified that he did not intend to kill John Stearns. He said:

"And Sue was standing by the bathroom door and I just thought, well, I will get the hell out of here. I want out. I backed up and John was coming toward me. He wasn't rushing but he was coming toward me. I backed over in this thing and sometime in here the gun went off."

Appellant had lived in the house for several years and in fact replaced the floor in the room in which John Stearns was shot. He testified at trial that, as he was backing out of the kitchen, he stumbled over a small ledge on the floor, slammed against the wall, and accidentally discharged the gun. Susan rushed in from the bathroom and saw Stearns lying on the kitchen floor. When she walked into the bedroom to telephone for help, appellant told her to stay away from the phone. She insisted, and was then permitted to use the telephone. After she made the call, Susan asked appellant why he had shot Stearns. She testified, "He said he didn't know. He just couldn't stand losing me." After the shooting, the appellant drove to the police station in Powell to turn himself in, arriving at the station sometime between 10:30 and 10:45 p. m. that night.

The evidence of record established that appellant was familiar with guns and knew how to use them. It was also shown that it was appellant's custom to put his rifle in a safety position when it was loaded and he did not intend to fire it. It was further established that the bolt was pulled back; the safety was off; and that the trigger had been pulled in the kitchen of Susan Lloyd's home on the night of February 2, 1977. An empty cartridge was found on the back porch of the house. Appellant stated that it was not necessary, for any of the purposes for which he intended to use the gun, for him to have had his finger on the trigger to have had the safety off or to have had a bullet in the gun.

THE ISSUES ON APPEAL

The jury returned a verdict of guilty of second-degree murder upon which judgment was entered, and the court denied the motions for new trial and judgment of acquittal.

The questions assigned for our consideration are:

"A. Was the appellant's testimony arbitrarily rejected by the jury contrary to instruction number 17 and should appellant's motion for judgment of acquittal have been granted?

"B. Was there sufficient evidence of intent and malice to sustain a verdict of second-degree murder?

"C. Did the trial court err in refusing to give a certain instruction requested by appellant?" (From appellant's brief)

The trial court's judgment, as well as its order denying the appellant's motions, are contrary to the position of the defendant-appellant on all of the above issues. We will affirm the trial court.

ISSUE "A"

It is the contention of the defendant that the district court's judgment should be reversed since there is insufficient independent evidence of malice and intent to sustain the verdict under the dictate of the "Eagan Rule." ¹ The Eagan Rule was embodied in Instruction No. 17 given by the court, as follows:

"You are instructed that where an accused is the sole witness of a transaction charged as a crime, as in this case, his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted. The defendant has a right to testify in his own behalf and you must not arbitrarily reject his testimony simply because of the fact that his testimony was given in his own behalf."

The question is Did the jury, in rendering its verdict, and the court, in entering judgment and overruling appellant's motions for acquittal and new trial, "arbitrarily reject" the defendant's testimony?

We said in Doe v. State, Wyo., 569 P.2d 1276, 1279, a second-degree murder conviction where the Eagan Rule was also contended for:

". . . In these cases, our duty is neither to substitute our opinion for that of the jury, nor to blindly accept the jury's determination as correct. We are required, in order to sustain the conviction, to find that there is sufficient probative evidence, direct or circumstantial, to prove intent and malice ² beyond a reasonable doubt. In doing so, we cannot and will not retry the facts of a case, but will only apply the rules set forth herein to the particular facts and circumstances which are presented." (Our footnote)

The Eagan Rule is, of course, helpful to a defendant only in those circumstances where his explanation remains uncontradicted either directly or by fair inferences from the testimony and evidence. Cullin v. State, Wyo., 565 P.2d 445, 448; and Doe, supra. Under the facts of this case, we cannot...