Lopez v. State

• Decision Date: 24 March 2004
• Docket Number: No. 01-110.,01-110.
• Citation: 86 P.3d 851,2004 WY 28
• Parties: John K. LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

86 P.3d 851

2004 WY 28

John K. LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-110.

Supreme Court of Wyoming.

March 24, 2004.

Representing Appellant: Thomas Sedar,¹ Casper, Wyoming; Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender, Cheyenne, Wyoming. Argument by Ms. Yoder.

Representing Appellee: Hoke MacMillan, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Cheyenne, Wyoming. Argument by Mr. Pauling.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ. GOLDEN, Justice.

[¶ 1] In this case, we must primarily decide whether the State proved that Appellant John Kenneth Lopez (Lopez) committed second degree murder by a single, open hand slap to the side of the victim's head. The victim walked away after the slap, but, hours later, was found unconscious, and he subsequently died. Following a jury trial, Lopez was convicted of second degree murder and sentenced to twenty to forty years. On appeal, retained trial counsel submitted issues alleging various trial errors and constitutional violations, one of which alleges that his own performance regarding jury instructions had been ineffective and deprived Lopez of his constitutional right to effective assistance of counsel. Retained counsel later withdrew, and the Public Defender was appointed. That appellate counsel submitted a supplemental brief raising other ineffectiveness-of-counsel issues primarily concerning trial defense counsel's failure to secure a defense expert to challenge the coroner's opinion of the cause of death. This Court remanded for an evidentiary hearing on this issue. At that hearing, a defense expert testified that the coroner had incorrectly determined the cause of death; however, the trial court ruled that counsel had been effective, and a second supplemental brief was submitted on appeal to challenge this decision.

[¶ 2] As explained below, this Court holds that the State did not prove beyond a reasonable doubt that Lopez killed maliciously, his conviction for second degree murder is reversed, and retrial on that charge is barred. This Court also holds that defense counsel provided ineffective assistance of counsel to Lopez when defense counsel failed to have expert testimony on the issue of causation at trial. This case is therefore remanded to the district court for a new trial on voluntary manslaughter. Further, the State is ordered to provide all tissue slides if so requested by the defense or, alternatively, the defense may choose instead to rely upon the present version of its defense expert's report and testimony which shall be admissible at a new trial.

ISSUES

[¶ 3] From his three briefings, Lopez presents the following statement of the issues:

1. Did the court's refusal to give defendant's requested self defense jury instruction on actual danger WPJIC 8.11 (1978) constitute reversible error?

2. [Was it reversible error for the court] to give instruction # 14 on duty to retreat?

3. Did the court's failure to give a jury instruction defining the term "deadly force" under Wyoming law constitute reversible error?

4. Did the court's failure to give the standard self defense instruction create reversible error?

5. Was the counsel for the defendant ineffective?

6. Did the prosecutor misstate the law in closing [argument] when he argued that to convict the defendant the jury must only find that the defendant struck [the victim] in anger?

7. Did the prosecutor's statements during closing [argument] when considered in their entirety constitute plain error?

8. Was there sufficient evidence to convict the defendant?

9. Were the defendant's rights to due process and a fair trial prejudiced by the coroner's intentional destruction of [the victim's] body?

10. Whether appellant's uncounseled statements to police should have been suppressed?

11. Whether counsel's errors, and in particular his failure to present conflicting expert testimony, rendered his assistance ineffective?

12. Whether each element of the crime charged was properly established?

13. Whether trial counsel's assistance was rendered ineffective in light of inherent conflicts of interest obviating the need to prove prejudice or, in the alternative, whether counsel's errors produced a trial with an unreliable result and thus prejudiced his client?

The State rephrases the issues as:

I. Did the district court err in instructing the jury as it did, and was defense counsel ineffective in not requesting or failing to object to certain instructions?

II. Was the prosecutor guilty of misconduct in his closing argument?

III. Was the evidence sufficient to support appellant's conviction?

IV. Did the coroner's release of the victim's body deprive appellant of his right to a fair trial?

V. Did the district court properly deny appellant's motion to dismiss?

VI. Did trial counsel's failure to procure expert witness testimony constitute ineffective assistance?

FACTS

[¶ 4] After getting off work, Lopez began drinking heavily at the Albuquerque Apartments in Casper with a number of friends sometime after 3:00 a.m. on the morning of December 18, 1999. Lopez and the victim, Robert Herman, were good friends, and Lopez was aware that Herman suffered from chronic alcoholism. According to defense theory, Lopez became upset that Herman was drinking whiskey and told him to stop drinking before he killed himself. Herman pushed Lopez, and Lopez slapped Herman on his head with an open hand and pushed him back down onto a couch. Which hand Lopez used to strike Herman was hotly disputed at trial, and witnesses' testimony about which hand was used was conflicting.

[¶ 5] The slap was inflicted about 11:00 a.m. on December 18, 1999. After receiving the slap, Herman went to the post office with a friend, but complained of a headache and returned to his apartment at about 12:30 p.m. Herman's girlfriend and at least one friend entered the apartment through an open backdoor during the afternoon. Late that evening, Herman had locked all doors, and his friends tried to rouse him to answer either the telephone or the door but were unable to do so. By 9:00 p.m., the friends were sufficiently worried to break into the apartment. They found Herman, face down on the floor by his bed, unconscious, and bleeding from the nose and mouth.

[¶ 6] Herman was rushed to the hospital but died the next evening, December 19, at about 9:30 p.m., almost thirty-four hours after Lopez struck him. After emergency room medical staff observed trauma to the left side of Herman's head, the police were notified and began an investigation about midnight on the 19th. Police investigators learned of an altercation, and an eyewitness testified that Lopez had struck Herman once with his open left hand on the right side of Herman's head earlier that morning. Another witness testified that he heard a smacking sound and then saw Herman falling back onto the couch and Lopez had his left hand up. The witness assumed that Lopez had "open-handed" Herman to the "right side of the head." Police encountered Lopez at Herman's apartment complex, and Lopez admitted striking Herman during an argument. Police then asked Lopez to go to the police station for an interview. During a recorded portion of the police interview, Lopez admitted to delivering a stiff arm to Herman's face. Police officer Malone testified that, during an unrecorded portion of the police interview, Lopez admitted to hitting Herman once on the right side of his face; however, Lopez demonstrated how he hit Herman and, during that demonstration, Lopez indicated that he had struck Herman once with his right stiff arm to the left side of Herman's face. Lopez' motion to suppress his statements to police was denied.

[¶ 7] The same night that police were receiving statements from Lopez and witnesses that Lopez had struck Herman hours earlier, evidence technicians notified police investigators that Herman had marks on his body that appeared to be boot marks; however, police uncovered no evidence that Lopez had kicked Herman. Dr. Thorpen, the coroner, prepared an autopsy report stating that Herman died from "assaultive trauma to head" that was caused after "subject struck on head by hand of known assailant." The autopsy was conducted on December 21, 1999, two days after death and after police had interviewed Lopez. Dr. Thorpen testified that Lopez was the "known assailant" listed as the cause of death and also testified that his conclusions as to how the death had occurred were based on police reports. Lopez was charged with second degree murder on January 3, 2000, and arrested the next day.

[¶ 8] At trial, Dr. Thorpen testified as the State's last witness. He testified that the cause of death was a blood clot on the right side of the brain that resulted from a blow administered to the left temple.² Dr. Thorpen stated that Herman had numerous health problems that made him susceptible to death by the slap and had previously been treated for dilated veins caused by chronic alcoholism and a previous head injury. Dr. Thorpen conceded that Herman was found on the floor, had a blood alcohol content of.215, and had veins so fragile they could easily rupture from sudden movement. However, Dr. Thorpen would not concede that it was possible that a fall had caused Herman's fatal injury because Herman had been found on a padded carpeted surface.

[¶ 9] No evidence at trial indicated that Lopez was aware that Herman possessed these physical weaknesses. Lopez contended that he had pushed Herman in self-defense and the slap was not the fatal blow. Lopez also contended that, between the time that he struck Herman and the death hours later, the fatal blow was caused by an intruder/robber who kicked him with boots. Lopez contended that some of Herman's possessions were missing. In both opening statement and closing...