Murry v. State, 5458

Citation713 P.2d 202
Decision Date23 January 1986
Docket NumberNo. 5458,5458
PartiesCharles William MURRY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, Cheyenne, and H. Clay Whitlow, Denver, Colo., for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John

Renneisen, Sr. Asst. Atty. Gen., Michael A. Blonigen, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, C.J., and BROWN, CARDINE, ROONEY (Ret.), and RAPER (Ret.), JJ.

BROWN, Justice.

Appellant Charles Murry was convicted of first degree murder by a Campbell County jury. On appeal he raises seven issues as follows:

"Whether the defendant's attorney at trail was so incompetent as to deny him the effective assistance of counsel guaranteed by the United States Constitution and the Constitution of the State of Wyoming.

"Whether there is sufficient evidence of premeditation by the defendant for the trial judge to submit to the jury the charge of first degree murder.

"Whether the evidence of premeditation was so lacking and the evidence of provocation and heat of passion so strong as to require this Court to reduce the conviction to manslaughter or, at least, second degree murder.

"Whether the trial court committed reversible error in denying defendant's motion for change of venue.

"Whether the comments of the prosecuting attorney in closing argument, in violation of the express instructions of the Court, warranted a mistrial.

"Whether the trial judge committed reversible error by permitting the prosecutor to inquire of defendant on cross examination concerning a prior felony conviction."

The state consolidated and rephrased the issues thusly:

"I

"Did the jury act properly in convicting the appellant of first-degree murder rather than manslaughter?

"II

"Did the trial judge err in refusing appellant's motion for a change in venue?

"III

"Did the prosecutor's comments during closing argument mandate reversal?

"IV

"Did the trial court err in allowing appellant to be cross-examined on his previous conviction for possession of a forged instrument?

"V

"Was appellant provided with reasonably effective counsel during this trial?"

We will affirm.

In the early evening of August 11, 1980, appellant Charles Murry and his wife Shirley went into the Watering Hole # 3 Bar near Gillette, Wyoming, to await a telephone call and visit a friend, Craig Bernatchy, who was bartending. They waited about an hour, then left, returning around 8:30 p.m. They joined Floyd "Fats" Carter and others at the bar and began drinking. "Fats" apparently took a liking to the feather in appellant's hat and began to harass him about it, first asking if he could buy the feather and then saying he might just take it. As the evening wore on and the consumption of alcohol increased, the conversation focused primarily on the fact that appellant, who is black, was married to a white woman. "Fats" Carter and others joined in casting racial slurs and obscenities at appellant. Appellant did not stand mute.

About midnight, having failed to receive the expected telephone call, Murry decided to go home. As he and his wife were leaving he stopped at the end of the bar near the place where John Carter (brother of "Fats" Carter) was sitting. The two men exchanged a few words but the conversation ended when John Carter struck appellant on the nose and appellant fell to the floor. After being hit, appellant immediately Following the shooting Leroy Hibbs approached appellant and told him he could not leave because he had just shot Craig Bernatchy. Appellant replied: "No, I didn't shoot Craig." The fatal weapon was surrendered to Leroy Hibbs who restrained Murry until the police arrived. At trial appellant testified that he did not remember firing the gun; he told the police after the shooting that Bernatchy had grabbed the gun and it had gone off accidentally.

left the bar, followed by his wife. Appellant went to his van parked in the vicinity of the bar, obtained a shotgun, and went back to the bar where he stuck his head inside the door and said to John Carter, Come on out, cowboy, I'll take care of you (or words to that effect). Mrs. Murry then asked Craig Bernatchy to go outside and try to calm her husband down before anything serious happened. Craig Bernatchy and Leroy Hibbs went outside. Within two to three minutes Craig Bernatchy lay dead from a shot fired by appellant.

Appellant was tried by a jury in district court on November 17 and 18, 1980, and convicted of first degree murder. He appeals the judgment and sentence dated December 5, 1980. 1

I

In the first issue appellant argues that there was insufficient evidence of premeditation and malice; that the evidence demonstrated instead that he acted because of provocation, and therefore manslaughter was the only proper verdict. The state prosecuted appellant on the theory of transferred intent. As applied to homicide, transferred intent exists when an actor intends to kill one person but kills another instead. The actor is held to the same degree of culpability as if he had killed the intended victim. "The intent is transferred to the person whose death has been caused, or as sometimes expressed, the malice or intent follows the bullet." Gladden v. State, 20 Md.App. 492, 316 A.2d 319, aff'd 273 Md. 383, 330 A.2d 176 (1974); Brown v. Commonwealth, 223 Va. 601, 292 S.E.2d 319 (1982). See also, 40 Am.Jur.2d Homicide § 11, pp. 302-303 (1968); 21 Am.Jur.2d Criminal Law § 131, p. 265 (1981); 22 C.J.S. Criminal Law § 36, p. 124 (1961). The theory of transferred intent allows malice, premeditation, and intent to be demonstrated even though someone other than the intended victim is killed. State v. Hamilton, 89 N.M. 746, 557 P.2d 1095 (1976).

The doctrine of transferred intent is not of recent origin. The Queen v. Saunders & Archer, 2 Plowden 473, 75 Eng.Rep. 706 (K.B.1576). It applies to all degrees of homicide, Henderson v. State, 264 Ind. 334, 343 N.E.2d 776 (1976), and is applicable even though the actual death is accidental or unintentional. State v. Hall, W.Va., 328 S.E.2d 206 (1985). The circumstances in this case illustrate a classic example of transferred intent. Here appellant killed Craig Bernatchy when he intended to kill John Carter.

The statute in effect at the time of the offense and under which appellant was charged reads in pertinent part:

"Whoever purposely and with premeditated malice * * * kills any human being * * * is guilty of murder in the first degree." (Emphasis added.) § 6-4-101(a), W.S.1977. 2

The necessary elements of the crime of murder in the first degree are:

1. The crime occurred within the county of _______ on or about the date of ______; and 2. The defendant killed a human being; and

3. The defendant acted purposely; and

4. With premeditation; and

5. With malice.

WPJIC, § 7.102.

At the time appellant was charged, second degree murder was defined in § 6-4-104, W.S.1977, as:

"Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree * * *." 3

The necessary elements of the crime of murder in the second degree are:

1. The crime occurred within the county of _______ on or about the date of ______; and

2. The defendant killed a human being; and

3. The defendant acted purposely; and

4. With malice.

WPJIC, § 7.402.

At the time appellant was charged, voluntary manslaughter was defined in § 6-4-107, W.S.1977 as:

"Whoever unlawfully kills any human being without malice, expressed or implied, * * * voluntarily, upon a sudden heat of passion, * * * is guilty of manslaughter * * *." 4

The necessary elements of the crime of voluntary manslaughter are:

1. The crime occurred within the county of _______ on or about the date of ______; and

2. The defendant killed a human being; and

3. The defendant acted voluntarily

4. Upon a sudden heat of passion.

WPJIC, § 7.502.

The difference between first and second degree murder is that first degree murder requires proof of premeditation; second degree murder does not. The critical difference between second degree murder and voluntary manslaughter is that in second degree murder it must be proved that the accused acted purposely with malice, while in a manslaughter charge it must be proved that the accused acted voluntarily, and upon a sudden heat of passion.

Appellant contends that there was insufficient evidence of premeditation and malice and that the crime he committed was manslaughter rather than either first or second degree murder. The standard to test the sufficiency of the evidence is not unique, and we recently reiterated it in Simmons v. State, Wyo., 687 P.2d 255, 257 (1984):

" * * * We test the sufficiency of the evidence on appeal by examining and accepting as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith; we give every favorable inference which may reasonably and fairly be drawn to the evidence of the prosecution. In other words, it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in a light most favorable to the state. [Citations.]"

Premeditation and deliberation may be inferred from the circumstances surrounding the killing. Goodman v. State, Wyo., 573 P.2d 400 (1977), (rev'd on other grounds). All evidence, direct and circumstantial, must be considered. It is for the jury to decide if the evidence presented establishes malice and premeditation. Goodman v. State, supra; and Buckles v. State, Wyo., 500 P.2d 518, cert. denied 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed.2d 320 (1972). "The word 'premeditated' when used in reference to first-degree murder, implies an...

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