Patterson v. State, 83-190

Citation682 P.2d 1049
Decision Date13 June 1984
Docket NumberNo. 83-190,83-190
PartiesFrank James William PATTERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, and Martin J. McClain, Asst. Appellate Counsel, Cheyenne, Wyoming Public Defender Program, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Timothy Judson, County and Prosecuting Atty., Fremont County, for appellee.


ROONEY, Chief Justice.

Appellant was convicted of first-degree murder by a jury on June 4, 1983. He was sentenced to life imprisonment in the Wyoming State Penitentiary. On appeal from that judgment and sentence, appellant states the single issue raised on appeal as follows:

"Whether the trial court's refusal to instruct the jury upon the defense's theory of self-defense was prejudicial error."

We affirm.

An appellant is entitled to instructions which cover his theory of the case if the offered instructions are sufficient to inform the court of such theory and only if there is competent evidence in the record to support them. Scheikofsky v. State, Wyo., 636 P.2d 1107, 1109 (1981); Jackson v. State, Wyo., 624 P.2d 751, 757, cert. denied 451 U.S. 989, 101 S.Ct. 2327, 68 L.Ed.2d 848 (1981); Goodman v. State, Wyo., 573 P.2d 400, 408 (1977).

An instruction should not be given if it is not reasonably supported by the evidence, or if it is not based on some theory logically derived from some part of the evidence. Therefore, an instruction should not be given based on evidence which at best raises a possibility or conjecture, or which is inconsistent with the physical facts. When viewing the evidence to determine whether an instruction should be given, we view the evidence in a light as favorable to the defendant as is justifiable, and the defendant's testimony must be taken as entirely true. Goodman v. State, supra, 573 P.2d at 409.

A review of the evidence in this case and in this fashion does not support a theory of self-defense. Appellant, with Bonnie Whaley, Charles Thorpen and Robert Willis met Jerry Riddle at a video arcade in Riverton, Wyoming. They were taken by Riddle to "party" at Griffy Hill. They then approached Riddle to drive the group to California, and he agreed to do so. They gathered their belongings into Riddle's van, and began their journey. They headed for Rock Springs, with Riddle driving. As they reached the Rawlins turn off, Willis took over driving. The road conditions were less than optimum; blowing snow hindered visibility somewhat.

At this point, Willis was in the driver's seat, appellant was in the passenger's seat, and Riddle, Thorpen and Whaley were in the back on the floor. Riddle, who was quite drunk, began playing with a dagger, which he gave to Willis when requested. Riddle then began handling a butter knife and a potato peeler, saying that he could make a weapon out of anything. Appellant then invited Whaley to move up to the passenger seat with him, for safety sake. As she was moving, Willis asked Riddle, "if it would be all right if he incapacitated him." Riddle answered, "If you don't trust me, tie me up." Appellant proceeded to tie Riddle's hands and feet. Shortly thereafter, when Riddle complained that his circulation was being cut off, appellant loosened the bindings on his hands. When appellant returned to his seat, Riddle got loose and put a choke hold on Willis, the driver of the van. Appellant grabbed Riddle, pulled him off Willis, and then hit his head against the console of the van several times, rendering Riddle unconscious.

Willis told appellant to retie Riddle, and to try to wake him, to make sure he was not dead. Riddle never fully regained consciousness, but he did at one point say "yes, sir" several times in response to being told to wake up. Willis, in the meantime was angry at Thorpen for letting Riddle get hold of Willis, and told Thorpen, "You dumb son of a bitch, you let him try to kill me. Now you're going to kill him or I'm going to kill you." Willis also told appellant that he, Willis, owed him one, for pulling Riddle off him. Willis also at this time stabbed Riddle in the leg with a knife to see if Riddle were alive. There was no response from Riddle.

Willis soon found a place to pull off the road, and he did so, and stopped the van. Appellant carried Riddle, who was still bound hand and foot, outside to the front of the van. At this time, Riddle said, "It's cold. Why is it so cold." It was still snowing. Willis gave a knife to Thorpen and said, "Here, you do it." Thorpen stabbed Riddle in the neck. Thorpen testified at trial that then appellant took the knife away from him and also stabbed Riddle in the neck, saying, "That's not how you do it. It's like this." Appellant testified that he did not stab Riddle in the throat, but that Thorpen had stabbed him twice. Appellant and Thorpen then dragged Riddle's body away from the road. They returned to the van, shut the doors and turned off the lights until an approaching car passed them, then they drove away.

Appellant argues that his theory of the case was that Riddle's death was due to injuries resulting from his head being hit against the console of the van; that such was necessary to prevent an automobile collision and to save their lives; and that appellant had not participated in the throat-slashing incident. Appellant therefore requested various instructions, including instructions on self-defense and lesser included offenses, based on the premise that appellant acted in self-defense in hitting Riddle's head against the console, and either he died from those blows, in which case the defense would be self-defense, or he did not die, in which case the lesser included offense of assault and battery would apply.

However, the judge observed that appellant was charged with murder not assault, and that the murder charges arose out of the injury to the throat, not the blows to the head. The trial judge said in this regard:

" * * * It's uncontroverted to me as the judge that the decedent, Jerry Riddle, died of loss of blood from having his throat cut. * * * If the defendant did not participate in slitting his throat * * *, he should be acquitted. Just that simple. That's the basis of the instructions."

The jury decided the factual question as to who had slit Riddle's throat against appellant. There was adequate evidence for such finding.

Appellant testified that Willis stopped the van to bring Riddle out of his unconscious state. He testified,

"A. It was to get him out, to get Mr. Riddle out and get him walking around and what have you so that we could bring him out of it, you know, maybe get him out in the cold and he would respond.

* * *

* * *

"Q. Was he still--what was his condition then?

"A. He was semi-conscious.

"Q. Why do you say 'semi?'

"A. Because he was mumbling, 'It's cold out here. Why is it so cold?' "

Appellant testified that Mr. Riddle was moved to the front of the van, and appellant took his arm to "start taking his pulse," and looked at his eyes and saw no response. He did, however, get a "faint" pulse. "I might have, I don't know. It felt like I had a pulse but--." Then he reached into his pocket for a watch to count Riddle's pulse, but before he could do that:

"A. I looked up and I saw Thorpen bending down and he thrust a knife into his throat, withdrew it, and in a slashing motion slit his throat again."

There is testimony in evidence that the group was concerned with Riddle dying after appellant had hit his head against the van's console. However, even appellant testified that Riddle was talking as they took him out of the van, and that he thought he found a pulse seconds before Thorpen stabbed him. 1

A pathologist, who qualified as an expert witness, testified on direct examination that the cause of death was a severed carotid artery.

"A. As a result of this cutting or transection of the carotid artery, as I mentioned, a great deal of bleeding or hemorrhage would occur. This is a lethal type of injury because it's a high pressure vessel and the blood does leave the vascular system relatively rapidly. This individual bled to death from this injury.

"Q. From what injury?

"A. The cutting of the carotid artery by the wound on the left side of the neck."

When asked about a bruise on the victim's head, the pathologist testified:

"A. As I mentioned, part of the internal examination was removing the skull cap, examining the brain, the vascular structures, soft tissue of the head. The wound to the left periatal [sic] area, the left side of the head again was very superficial. It was just a bruise in the soft tissue. There were no fractures of the skull, there was no significant degree of injury to the brain or any other structures. It was not a lethal injury in any way, shape or form."

Bonnie Whaley, on direct examination testified that Riddle was alive before he was removed from the van. Thorpen had testified on cross-examination that he thought Riddle was already dead before he stabbed him, but based only on the fact that Riddle had been fading in and out of consciousness since the blows to the head, and because he looked "lifeless" while lying in front of the van.

This falls short of competent evidence to warrant instructions on self-defense. The pathologist's testimony, coupled with the evidence that Riddle was talking moments before his throat was slashed, in addition to appellant's own testimony that he thought he found a pulse seconds before the knife wounds were inflicted dispels any notion that the victim was dead before he was stabbed.

The trial court summarized the effect of the evidence at the instruction conference:

"THE COURT: Well, you know, Riddle's hands were tied, his feet were tied, ...

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