Ramos v. State, 89-216

CourtUnited States State Supreme Court of Wyoming
Citation806 P.2d 822
Docket NumberNo. 89-216,89-216
PartiesPetrolino RAMOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date15 February 1991

Page 822

806 P.2d 822
Petrolino RAMOS, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 89-216.
Supreme Court of Wyoming.
Feb. 15, 1991.
Rehearing Denied March 15, 1991.

Page 823

Mike Cornia, Appellate Counsel for the Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., John Renneisen, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.



MACY, Justice.

Appellant Petrolino Ramos appeals from his conviction for second-degree murder.

We affirm.

Appellant raises the following issues:

1. Whether the trial court erred in excluding evidence that the victim had stabbed his brother-in-law.

2. Whether the trial court's refusal to give defendant's requested self-defense instructions denied Appellant of his right to due process as guaranteed by the Wyoming and United States Constitutions.

3. Whether the trial court erred in excluding evidence of a felony conviction of state's witness Gallegos.

4. Whether the admission of Appellant's statement made to the police especially after an unequiv[ocal] request for counsel, violated Appellant's rights under the Fifth Amendment of the United States Constitution and Article 1, Section 11 of the Wyoming Constitution.

5. Whether the trial court erred in not ruling on the motion to suppress.

6. Whether giving instruction number 18 indicating that second degree murder does not require proof [of] intent denied Appellant of his right to Due Process.

7. Whether the admission of evidence concerning Appellant's involvement in a fight the night of the killing was prejudicial error.

8. Whether the various error[s] in this case resulted in "Cumulative Error."

During the evening of January 28, 1989, several people gathered at Appellant's residence to listen to music, play pool, and

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consume alcohol. Later in the evening, two individuals began to argue about the kind of music which should be played on the stereo. While the argument did not turn into a fisticuffs, it did lead to a quarrel between the victim and Appellant. After the two exchanged words, the victim decided to leave with three friends. Appellant attempted to follow the victim out of the house but was temporarily restrained at the doorway. When Appellant broke free and went outside, the victim, who was waiting to get into a car parked on the street in front of the house, removed and discarded his jacket. Appellant approached the victim and stabbed him in the chest with a knife. In the imbroglio which followed, Appellant stabbed the victim in the bicep and in the side of his chest below his armpit. Appellant fled the scene in a pickup with two friends and was apprehended by the police the next morning. The victim died from a stab wound to the heart.

Appellant was charged with aggravated assault and battery in violation of Wyo.Stat. § 6-2-502 (1977) and with first-degree murder in violation of Wyo.Stat. § 6-2-101(a) (1977), amended by 1989 Wyo.Sess.Laws ch. 171, § 1 (effective March 6, 1989). At the trial, the district court granted Appellant's motion for a judgment of acquittal on the aggravated assault and battery charge and on the premeditated portion of the first-degree murder charge. A jury found Appellant guilty of second-degree murder in violation of Wyo.Stat. § 6-2-104 (1977), 1 and the district court sentenced him to a term of not less than thirty-five years nor more than forty years in the Wyoming State Penitentiary.

Evidence of the Victim's Prior Conduct

Appellant contends that the district court erred when it refused to allow his attorney to question a witness about the victim allegedly stabbing his brother-in-law. At the trial, the following colloquy occurred:

Q. Well, Martin[ ] had talked to you of stabbing his brother-in-law in Mexico three times, hadn't he?

A. Brother or brother-in-law?

Q. Either.

A. Which brother?

Q. I don't know which brother. He talked about that incident to you?

A. No.

The State objected to the questioning as being irrelevant, and the district court sustained the objection. Appellant argues that the question was proper under W.R.E. 404 and 405 2 and that the district court

Page 825

abused its discretion by sustaining the State's objection.

The decision to admit evidence is generally

"within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed. It is also the general rule that the foundation, relevance, competency, materiality, and remoteness are within the sound discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion." (Footnotes omitted.)

The burden of establishing the clear abuse of discretion must be assumed by the party who attacks the ruling of the trial court. That party must establish that the ruling of the trial court was erroneous and that it did affect substantial rights of the party.

Jahnke v. State, 682 P.2d 991, 1005 (Wyo.1984) (quoting Taylor v. State, 642 P.2d 1294, 1295 (Wyo.1982)) (citations omitted). See also Braley v. State, 741 P.2d 1061 (Wyo.1987). Judicial discretion "means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Martin v. State, 720 P.2d 894, 897 (Wyo.1986).

The district court's ruling sustaining the State's objection was not error. W.R.E. 602 provides that a witness may not testify about a matter unless the witness has personal knowledge of the matter. 3 After the witness stated that he had no knowledge of the stabbing incident, there was nothing further to ask him which was relevant to the incident.

Appellant's Requested Self-Defense Instructions

Appellant's second contention challenges the district court's refusal to give Appellant's requested self-defense instructions. We recently discussed the standard of review we use when a defendant contends that the district court erroneously refused to give a proposed jury instruction. Oien v. State, 797 P.2d 544 (Wyo.1990); Thom v. State, 792 P.2d 192 (Wyo.1990).

[A] defendant has the right to have instructions on his theory of the case or his theory of defense presented to the jury if the instructions sufficiently inform the jury of the theory or defense and if competent evidence exists which supports the law expressed in the instructions.

Thom, 792 P.2d at 195. The proposed instruction must articulate Wyoming law. Oien, 797 P.2d 544.

This Court has delineated the defense of self-defense in homicide cases:

In composite, they hold that to excuse a homicide on the grounds of self-defense, one must establish the following: (1) that the slayer was not at fault in bringing on the difficulty; (2) that he believed, at the time of the killing, that he was in such immediate danger of losing his own life, or of receiving serious bodily injury, as made it necessary to take the life of his assailant; (3) that the circumstances were such to warrant reasonable grounds for such belief in the mind of a reasonable man; (4) that there was no other reasonable method of escaping or otherwise resolving the conflict. The right to kill in self-defense exists only in extremity; there must be no other practicable means to avoid the threatened harm. To successfully assert self-defense, the defendant must have no other reasonable means of avoiding death or injury.

Patterson v. State, 682 P.2d 1049, 1053 (Wyo.1984) (citation omitted). In that first-degree murder case, the appellant and four other individuals, including the victim, were traveling in a van near Rawlins, Wyoming, when the victim placed a choke hold on the driver. The appellant pulled the victim off the driver and hit the victim's head on the console, knocking him unconscious. The driver eventually stopped the van, and the victim was stabbed. At the appellant's trial, the appellant claimed he was entitled to a self-defense instruction because he hit the victim's head on the console to prevent him from causing a serious automobile

Page 826

wreck. The district court refused to instruct the jury on the theory of self-defense, and the appellant was convicted of first-degree murder. This Court affirmed the conviction and stated that, even if the victim had not been stabbed, "the evidence surrounding the head-hitting incident [did] not give rise to the defense of self-defense." Id. at 1052.

The only evidence which appears to support Appellant's self-defense theory is his own testimony. Appellant testified that, as he began to follow the victim outside through the front door of the house, two individuals attempted to hold him back. Appellant stated that he struggled and broke free and that, when he went out through the front door, the victim charged him and reached out in an effort to grab his neck. Appellant further testified that he had always been afraid of the victim because the victim had tried to pick fights with him and that he feared the victim would beat him up and seriously hurt him. He also said that he had previously seen the victim with a knife, but Appellant admitted he had not seen the victim with a knife on the night of the stabbing.

In light of the standards enunciated in Patterson, and assuming Appellant's testimony is entirely true--which we must do under our standard of review, Oien, 797 P.2d 544--we hold that the victim's actions did not give rise to the defense of self-defense. The evidence simply does not indicate that Appellant could reasonably believe that he was in immediate danger of losing his life or of suffering serious bodily injury.

Evidence of Prior Convictions

Appellant asserts that the district court erred by not allowing his counsel to question a witness for the State about a prior conviction. 4 During cross-examination of the witness, the following dialogue occurred:

Q. Have you ever been convicted of any felonies?

MR. CRANK: I will object, and ask Mr. Raymond for an offer of proof.


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