Price v. State

• Decision Date: 12 March 1991
• Docket Number: No. 89-135,89-135
• Citation: 807 P.2d 909
• Parties: Arlen Joe PRICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 909

807 P.2d 909

Arlen Joe PRICE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-135.

Supreme Court of Wyoming.

March 12, 1991.

Leonard Munker, State Public Defender, Gerald M. Gallivan, Director of the Wyoming Defender Aid Program, Robert T. Butler and Douglas J. Gardner, Student Interns for Wyoming Defender Aid Program, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Kaylin D. Kluge, Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

OPINION

MACY, Justice.

Appellant Arlen Joe Price appeals from his conviction for first-degree murder.

We affirm.

Appellant presents the following issues for our review:

I. Because the jury instructions and the form of the verdict gave the jury the choice between two theories of the first degree murder--premeditated or felony murder--and it is impossible to determine upon which theory the jury based its verdict, and because the court determined at the end of the defense's case that there was insufficient evidence of aggravated robbery as a matter of law, Appellant is entitled to a new trial.

II. Because as a matter of law there was insufficient evidence of intent to commit larceny, the Appellant is entitled to a reversal and a remand for the purposes of retrial on the premeditated theory, without the possibility of felony murder.

III. The trial court erred when it conditioned the admiss[i]bility of the testimony of defendant's expert upon the laying of a proper foundation i.e. when the court required the testimony of the defendant before permitting testimony of the expert.

IV. Expert testimony from Dr. Brian Miracle should have been allowed as to (a) whether he thought the Appellant did the actual stabbing of the victim and (b) why the defendant would come into court and say that he had committed the murder he had been accused of, when he had not.

During the evening of February 25, 1989, Appellant and a man referred to as "Chief" went to the home of Appellant's uncle, Lewis "Sonny" Price, Jr., near Jackson, Wyoming. Appellant was carrying a handgun, and Chief was carrying a knife. After Sonny invited Appellant and Chief into his trailer, Appellant brandished the gun and told Sonny that he was going to "make him pay." Sonny and Appellant began to wrestle, and the gun discharged a bullet which did not hit anyone. Chief went to Appellant's aid, jumped on Sonny, and stabbed him in the side. Appellant got up off the floor, checked to see if anyone in the neighborhood was aware of what was taking place, grabbed the knife, and stabbed Sonny to death.

The two men left the trailer and went to Appellant's mother's house to change out of their bloody clothes. Appellant told his mother that he killed Sonny, and then he and Chief departed for Salt Lake City, Utah. After they spent time in Salt Lake City trying to borrow money, Appellant and Chief went to Nevada. They eventually arrived in Las Vegas and began to gamble. On March 4, 1989, Chief took Appellant's car without Appellant's knowledge and drove to Lake Mead National Recreation Area where park rangers shot and killed him when he threatened them with a gun. The police apprehended and arrested Appellant in a casino after they received a telephone call from an individual whom Appellant told about the killing.

After he was taken into custody, Appellant told police officers that he went to Sonny's place to kill him, but he stated that he did not attempt to rob Sonny. He said that he killed Sonny to pay him back for the pain he had caused Appellant's family, especially his younger brother, Timmy. Appellant and Timmy claimed that Sonny had raped them, and Timmy claimed that Sonny forced him to perform bestialities.

Appellant was charged with first-degree murder in violation of Wyo.Stat. § 6-2-101 (1988), amended by 1989 Wyo.Sess.Laws ch. 171, § 1 (effective March 6, 1989), ¹ and aggravated robbery in violation of Wyo.Stat. § 6-2-401 (1988). ² On May 9, 1989, a jury found Appellant guilty of first-degree murder, and the trial court subsequently sentenced him to serve a life term in the Wyoming State Penitentiary.

Although Appellant raises four issues for our consideration, we consolidate them into the following two questions which encompass Appellant's arguments: (1) Is Appellant's conviction for first-degree murder supported by sufficient evidence of felony murder; and (2) did the trial court err by limiting the scope of testimony given by a psychologist who testified on behalf of Appellant?

Sufficiency of the Evidence

Appellant's first two issues challenge the sufficiency of the evidence which supports Appellant's first-degree murder conviction. At the trial, the State sought Appellant's conviction for first-degree murder on the basis of premeditation or, alternatively, for felony murder with robbery as the underlying felony and for aggravated robbery. Appellant moved for a judgment of acquittal on both charges pursuant to W.R.Cr.P. 30. The trial court refused to send the issue of aggravated robbery to the jury but determined that the jury should decide whether Appellant committed or attempted to commit robbery. The jury found Appellant guilty of first-degree murder, but the verdict form did not state whether the basis for the conviction was premeditation or felony murder with robbery as the underlying felony. ³ Appellant now asserts that the record does not contain sufficient evidence to support a conviction for robbery or attempted robbery and that:

When a count is brought on two separate theories, and there is insufficient evidence on one of the theories, if it is impossible to determine upon which theory the conviction rests, the verdict is to be set aside, and a new trial granted. Yates v. U.S., 354 U.S. 298, 77, S.Ct. 1064, 1 L.Ed.2d 1356 (U.S.Cal. June 17, 1957); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (U.S.Cal., May 18, 1931); Cloman v. State, 574 P.2d 410 (Wyo., 1978).

This Court previously dealt with a similar fact situation in Cloman v. State, 574 P.2d 410 (Wyo.1978). In that case, the appellant was convicted of first-degree murder, but the ambiguous verdict form and jury instructions produced the following question: "Did the jury find evidence of premeditated murder or felony-murder in the commission of a robbery, or both?" Id. at 412. We upheld the conviction for first-degree murder because the evidence "justified the holding that the jury found both premeditated murder and felony-murder in the commission of a robbery." Id. See United States v. Natelli, 527 F.2d 311 (2d Cir.1975), cert. denied 425 U.S. 934, 96 S.Ct. 1663, 48 L.Ed.2d 175 (1976). ⁴ If each alternative ground for a defendant's first-degree murder conviction is supported by substantial evidence, we will not set aside the conviction solely because we are unable to determine which ground served as the basis for the jury's decision.

Appellant does not dispute the sufficiency of the evidence demonstrating that he committed a premeditated murder, so we must determine if the record reveals sufficient evidence which indicates that he killed Sonny in the perpetration of a robbery or an attempted robbery. Section 6-2-401(a) provides:

(a) A person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 he:

(i) Inflicts bodily injury upon another; or

(ii) Threatens another with or intentionally puts him in fear of immediate bodily injury.

Wyo.Stat. § 6-3-402(a) (1988) is a subsection of our larceny statute, and it states: "A person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny." Wyoming's attempt statute provides in pertinent part:

(a) A person is guilty of an attempt to commit a crime if:

(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime * * *[.]

Wyo.Stat. § 6-1-301(a)(i) (1988). To ascertain if sufficient evidence of robbery or attempted robbery exists,

[w]e examine all the evidence in the light most favorable to the State * * *.

"[I]t is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather 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 the light most favorable to the State.

* * * * * *

"It is not our function to weigh the evidence for a determination as to whether or not it is sufficient to establish guilt beyond a reasonable doubt. We have consistently held that even though it is possible to draw other inferences from the evidence presented, it is the responsibility of the jury to resolve conflicts in the evidence."

Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989) (quoting Broom v. State, 695 P.2d 640, 642 (Wyo.1985) (citations omitted)). ⁵

At the trial, Appellant's mother testified about the conversation she had with Appellant on the night of the killing. According to her, Appellant told her that he pulled out his gun and that

he asked for Sonny to open the safe to give him some money, and Sonny told him he couldn't open the safe for him. And then he got down on his knees and grabbed ahold of Arlen and told him, begged him not to do this to him. Told him to just go away; that he would forget about it. And then they got to wrestling and the gun went off, but he said he didn't know if he hit Sonny or not.

That testimony, in addition to Appellant's statements that he stabbed Sonny at least four times and the fact that Sonny died from knife wounds, viewed in the light most favorable to the State, is sufficient evidence to uphold Appellant's conviction for killing a human...