Peterson v. State

Decision Date13 October 1978
Docket NumberNo. 4862,4862
PartiesJames PETERSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtWyoming Supreme Court

Harry E. Leimback and David B. Park, Casper, signed the briefs and appeared in oral argument on behalf of the appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., signed the briefs. Allen C. Johnson, Cheyenne, appeared in oral argument on behalf of the appellee. William Tom Sullins, II, Deputy County and Pros. Atty., Natrona County, was present during oral argument.


RAPER, Justice.

Appellant-defendant is before this court convicted by a district court jury of murder in the second degree 1 and under sentence

to the Wyoming State Penitentiary for a term of not less than twenty nor more than twenty-one years. Defendant alleges trial court errors urged as sufficient to mandate reversal in each of the following areas: 1. double jeopardy; 2. diminished capacity; 3. exclusion of evidence; 4. fair trial; and, 5. sentencing. Except for remand for reconsideration of the sentence imposed, we shall affirm.


On July 16, 1975, the day of the homicide in question, defendant was employed as a construction superintendent with the Pullman-Kellogg Company of Pennsylvania. On or about the 12th of July, 1975, he had come to the Casper, Wyoming area to do preliminary work in preparation for construction of a 500-foot smoke stack to be constructed at a power plant near Glenrock, Wyoming. On July 16, following a morning spent with his superiors surveying the construction site, defendant and the others proceeded to a bar in Glenrock where defendant consumed approximately eight drinks. Thereafter defendant and two other employees proceeded to a Casper motel so that the two fellow employees could retrieve their luggage and proceed to the airport. At the motel, defendant took on two more drinks.

After his friends had departed, as then recalled and related by defendant, he proceeded to downtown Casper where he entered the Reef Lounge, mingled with the customers and eventually struck up an acquaintance with two or three patrons. Defendant ordered drinks for himself as well as the other eight or ten customers at the bar, and from time to time thereafter bought drinks for all persons within the establishment. Defendant estimated that during this time he consumed six additional drinks. Sometime during that time period, the deceased victim of the homicide, Ray Mora, entered the establishment. After decedent's arrival, defendant noted that his bar tab for a round of drinks for the house had increased sufficiently to cause him to believe he was being overcharged. He complained to Max Cisneros, one of the owners; an argument ensued resulting in a return to defendant of $5.00 and a direction to leave the bar. Defendant and the two acquaintances he had met in the bar then left and eventually ended up at the Townsend Bar where defendant had one or two more drinks.

According to defendant's testimony, it was at this point he decided he should go back to the Reef Lounge and make amends, if any were necessary, since he disliked the thought of possibly having made a bad impression with a business establishment in Casper. At approximately 7:40 p. m. defendant reentered the Reef Lounge. He walked a few feet past the front door to the nearest point of the bar and started to ask for the owner, he thought to be Max Cisneros. The decedent, then tending bar, grabbed a can of animal repellent known as "Halt", a product containing capsicum (cayenne, a red, hot substance taken from a pepper plant) which when applied to body parts creates a painful, burning sensation, and sprayed defendant directly in the face. Defendant, in confusion and great pain, ran from the bar to the outside where he stopped to get his bearings. The decedent followed and, when defendant stopped, sprayed him again in the face. As defendant attempted to escape down the street, the decedent continued after him, spraying him at various times with the repellent and kicking him when he tripped and fell into the gutter. Eventually the defendant found himself at the Branding Iron Cafe where he requested a taxi be summoned and then returned to the street.

When the taxi arrived, defendant directed the driver to his motel where he picked up a revolver and then returned to the Reef Lounge, telling the driver to wait and not to worry because he wasn't going to hurt anyone; he was just going to scare him. As he reentered the lounge, defendant stopped a few feet beyond the front door, waving his gun in the air and asking for the

man who had sprayed him. He then heard a rustling from a bead-curtained alcove immediately to his left where the decedent, Mora, had concealed himself. Defendant took a step toward the curtained nook, reached over the jukebox to part the beads and at that point saw and heard the decedent spraying him again with the animal repellent. Defendant's gun discharged and Mora fell forward into the room, mortally wounded. Defendant then left the bar and entered the now driverless cab. When it became clear to defendant that the driver was absent, he abandoned the cab and proceeded to his truck which he drove to a point within a block of his motel before being stopped and arrested by Casper police. He was then taken to the police station and, approximately two hours later at 9:50 p. m., was taken to a hospital where a blood test was taken. The results of the State's test indicated that the defendant had a .19 blood alcohol content as of 9:50 p. m., which trial testimony disclosed would have been a blood alcohol level of .23 at 8:00 p. m., the approximate time of the shooting and defendant's arrest. Additional factual information will be narrated as necessary to our discussion.


Defendant's conviction and sentence are the results of a second trial, defendant's first having ended when the jury was unable to agree on a verdict. In support of the claim that his retrial was conducted in violation of constitutional guarantees against double jeopardy, defendant raises two points which he alleges constitute reversible error: 1. no "manifest necessity" was shown of record for discharge of the first jury; and, 2. no written order was entered of record by the district court specifying the reasons for discharge as mandated by § 7-11-211, W.S.1977. 2 With neither assertion will we agree.

A defendant's right not to be placed in jeopardy a second time for the same offense is specifically guaranteed by the constitutions of both Wyoming and the United States. 3 The reasoning behind such a prohibition is fundamental to our constitutional system, United States v. Jorn, 1971, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543:

"The Fifth Amendment's prohibition against placing a defendant 'twice in jeopardy' represents a constitutional policy of finality for the defendant's benefit in * * * criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws. Both of these considerations are expressed in Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957), where the Court noted that the policy underlying this provision 'is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling Yet not in every situation is the government limited to one turn at bat. If, for whatever reason, a defendant so requests and a mistrial is granted, he is deemed, absent prosecutorial bad faith or overreaching, to have waived any argument of former jeopardy to prevent a retrial, United States v. Weaver, 8th Cir. 1977, 565 F.2d 129, 133:

him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.' * * * "

"As * * * stated * * * the double jeopardy clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Only in limited circumstances, where the judicial or prosecutorial error that prompts the defendant's motion is intended to provoke the motion or is otherwise motivated by bad faith or undertaken to harass or prejudice the defendant, does the double jeopardy clause bar retrial."

See as well, People v. Miller, 1978, App.Div., 403 N.Y.S.2d 298; State v. Small, Me.1978, 381 A.2d 1130; Cook v. State, 1978, 281 Md. 665, 381 A.2d 671; State v. Henderson, 1977, 116 Ariz.App. 310, 569 P.2d 252. And even in those situations in which a defendant neither requests or acquiesces nor even specifically objects to the granting of a mistrial, a plea of former jeopardy is ineffective if incomplete termination of the trial was dictated by "manifest necessity" or to meet "the ends of public justice," United States v. Perez, 1824, 22 U.S. 579, (9 Wheat.), 6 L.Ed. 165:

" * * * We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper...

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