Mueller v. State, 00-211.

• Decision Date: 27 December 2001
• Docket Number: No. 00-211.,00-211.
• Citation: 36 P.3d 1151,2001 WY 134
• Parties: Detlev Bill MUELLER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

36 P.3d 1151

2001 WY 134

Detlev Bill MUELLER, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-211.

Supreme Court of Wyoming.

December 27, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General. Argument by Mr. Elrod.

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

HILL, Justice.

[¶ 1] Appellant, Detlev Bill Mueller (Mueller), was found guilty by a jury of two counts of felony interference with a police officer.¹ The district court entered judgment and sentence on that verdict imposing two consecutive sentences of 42-60 months of imprisonment. Mueller appeals from the district court's judgment and sentence contending that the district court erred in refusing to give lesser-included offense instructions offered by him, that there was insufficient evidence of the crimes charged, and that the prosecutor engaged in misconduct during closing argument.

[¶ 2] We will reverse and remand to the district court for further proceedings consistent with this opinion.

ISSUES

[¶ 3] Mueller raises these issues:

I. Did the trial court error [sic] in refusing to instruct on one or both lesser included offenses?

II. Was there sufficient evidence of Appellant's violation of each element of W.S. § 6-5-204(b)?

III. Was it proper for the prosecutor to misstate some of the evidence and the law on probable cause and unfairly comment upon the credibility of witnesses to the jury?

The State rephrases the issues thus:

I. Did the district court properly refuse Appellant's request for lesser-included offense jury instructions?

II. Are Appellant's convictions supported by sufficient evidence?

III. Has Appellant suffered any prejudice where the State's comments in closing argument were within the bounds of permissible argument and posed no substantial risk of a miscarriage of justice?

FACTS

[¶ 4] The issues to be decided in this case are best understood if we begin our recitation of the operative facts with an acknowledgment that Mueller was, in some ways, a victim of mistaken identity. In addition, many facts are included here that relate primarily to our review of Mueller's claim that the evidence was insufficient to support his convictions and, hence, are presented in a light most favorable to the State (that standard does not apply to the issue of whether lesser-included offense instructions should have been given). At about 4:00 p.m. on September 10, 1999, Mueller was standing in the parking lot of the Yellowstone Motel in Casper when two police officers, clad in t-shirts and jeans and operating undercover so as to more readily fit into the drug culture, drove up, jumped out of their unmarked car, pointed their guns at Mueller and his companion, identified themselves as police officers, and told Mueller to get on the ground. Mueller's response was to say "f— you" and attempt to get away from the two men. After a struggle, the policemen eventually subdued Mueller. All of this occurred in about a minute or two.

[¶ 5] Now, we must reverse field to explain how Mueller ended up where he did. At the time of their encounter with Mueller, the policemen were looking for a man named Steve Spurlin (Spurlin). As part of an undercover drug operation, the police had identified Spurlin as a potential drug dealer. On September 2, 1999, a confidential informant had purchased methamphetamine from Spurlin and a woman named Altina Crenshaw (Crenshaw). On September 3, 1999, the police searched Spurlin's trailer (where the drug buy was made) and, amongst other things, seized methamphetamine. Crenshaw "cooperated" with the police in several unsuccessful drug buys, and also told police that Spurlin was involved with a woman named Allyson Burkey (Burkey). Another informant told the police that Spurlin might have a gun, and the police considered him to be dangerous.

[¶ 6] The policemen had never really seen Spurlin up close, and they did not know what he looked like. On the date of Mueller's interaction with the policemen, they had decided to seek out Spurlin by trying to find Burkey. They also did not know what Burkey looked like, but they knew that she drove a blue Buell motorcycle and that Spurlin had received a call from the Yellowstone Motel, as the call was listed on his caller ID during the search of his trailer. With this information in hand, they drove by the Yellowstone Motel and spotted a blue Buell motorcycle parked outside one of the rooms.² Initially, they knocked on the door of the room, in front of which the motorcycle appeared to be parked, but there was no answer to their knock and, indeed, that was not the room that Burkey was in. The policemen then went to the motel office and attempted to find out what room Burkey was in, but the clerk would not give out that information (and Burkey was registered under an alias so the clerk did not recognize the name Burkey).³ However, as they were leaving the motel office, a woman came out of a room near where the motorcycle was parked and got onto it. Mueller followed close behind and kissed⁴ Burkey. The policemen were "pretty sure" Mueller was Spurlin.⁵ The policemen did not plan on arresting Spurlin but rather were "checking it out." The policemen drove up at a high rate of speed in their car, so as to block Burkey's motorcycle, jumped out of their car, and "yelled rather loudly, so there's no mistake, police, get down on the ground." According to the policemen, one officer was showing his badge and the other was not. The policemen repeated the command to get down on the ground several times, but Mueller did not comply: "Mr. Mueller just, he kind of scowled, he frowned like he was angry, and he started backing up and I remember him saying, why." One of the policemen testified that he determined that Mueller was not armed, that he did not fear that they were going to be seriously injured by Mueller, and so he did not use his firearm. As noted earlier, in the attempt to have "contact" or "check out" the situation with Spurlin, the policemen ordered Mueller to the ground. When Mueller did not obey, they attempted to subdue him, and in that attempt Mueller first struck one policeman and then the other. Mueller was charged with two counts of felony level resisting arrest. One policeman was struck on the head, and it caused him pain, a "headache," and the other was struck in the jaw, and he also testified that the blow caused his jaw to be sore for that evening and the next day.

[¶ 7] There were no direct eyewitnesses to the events described above other than the two policemen, and Mueller and Burkey. Mueller did not testify, and Burkey's testimony was equivocal about whether the policemen had identified themselves as policemen. The clerk at the motel witnessed portions of the episode. She missed a portion of what happened because she called 911 to report what she thought was an attempt by the policemen (whom she did not know were policemen) to rob Burkey and Mueller. Indeed, police and firemen responded to the call and arrived very shortly after Mueller was subdued. The motel clerk did not see the policemen show badges, did not hear them identify themselves as policemen, and did not see Mueller strike either policeman, though she conceded that she might not have been able to hear or see all that went on from her vantage point.

DISCUSSION

Lesser-Included Offense of Resisting Arrest (Misdemeanor)

[¶ 8] The pivotal issue in this case is whether the district court erred in refusing to give a lesser-included offense instruction with respect to misdemeanor resisting arrest. We include the pertinent statute for the sake of convenience:

§ 6-5-204. Interference with peace officer; disarming peace officer; penalties

(a) A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties.

(b) A person who intentionally and knowingly causes or attempts to cause bodily injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than ten (10) years.

Wyo. Stat. Ann. § 6-5-204(a) and (b) (Lexis-Nexis 2001).

[¶ 9] The applicable standard of review is well-established: Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. Schmidt v. State, 2001 WY 73, ¶ 23, 29 P.3d 76, ¶ 23 (2001); Metzger v. State, 4 P.3d 901, 908 (Wyo.2000). With specific regard to lesser-included offense instructions, we recently held that a trial court must first determine if all the elements of the lesser offense are included within the greater. If that is the case and there is some evidence that would rationally permit the jury to find the accused guilty of the lesser and not the greater offense, the instruction should be given. Sanders v. State, 7 P.3d 891, 894 (Wyo.2000) (ci...