Reeder v. State, 4210

• Decision Date: 14 November 1973
• Docket Number: No. 4210,4210
• Citation: 515 P.2d 969
• Parties: Richard Brian REEDER, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 969

515 P.2d 969

Richard Brian REEDER, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4210.

Supreme Court of Wyoming.

Nov. 14, 1973.

Thomas E. Lubnau, Gillette, for appellant (defendant below).

Clarence A. Brimmer, Atty. Gen., George S. Andrews, Sp. Asst. Atty., Gen., Cheyenne, Daniel P. Morgan, County Atty., Wade Brorby, Deputy County and Pros. Atty., Gillette, and Michael L. Wass, Senior Law Student Laramie, for appellee (plaintiff below).

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE and McCLINTOCK, JJ.

Mr. Justice McEWAN delivered the opinion of the court.

The defendant was charged with the crime of first degree murder and the jury returned a verdict in which it found him guilty of murder in the second degree, whereupon he was sentenced to a term of 22 to 28 years in the State Penitentiary. The defendant appealed from the judgment and argued that the evidence was insufficient to sustain the verdict and that the court erred in failing to give a requested instruction and in allowing a photograph into evidence.

The defendant, the decedent, John Batinovich, and Mel Gunderson, spent some time together in a bar in Gillette, Wyoming, and about 9 p. m. they went to the home of defendant's mother. The decedent was apparently trying to find someone to physically assault a certain 'preacher.' The defendant went into his bedroom and brought a gun to the living room. Gunderson, who left for work at 9:30 p. m., was in the kitchen packing his lunch. The defendant and decedent began to argue and the defendant fired a shot over the head of the decedent, which he testified was in jest. After Gunderson left for work the defendant and decedent remained in the living room where the argument continuted, and according to the defendant, 'Well, I realized that he was no longer funning and that he was going to hit me with that beer bottle, so I just shot him.' The defendant further testified that after the first shot the decedent fell back against the couch, stood up and kept coming toward him, and he shot the decedent three more times. According to the defendant he ran out the side door, which faced the alley and the decedent ran out the front door, around the corner of the house and up the alley toward him, and 'I just figured that the only way I guess I'm going to get to stop him is defend myself more, by hitting him over the head with my pistol, and I raised my pistol and started to walk towards him, but slipped on some shale and he ran right on by me.' The defendant then drove away in his father's car, contacted his mother, and some attempt was made to provide him with an alibi. He and his mother disposed of the gun and a bloody shirt which were later recovered through his help and that of his attorney. The defendant claimed he shot the decedent in self-defense.

The decedent collapsed after running approximately two blocks from the house. The police were notified and an ambulance took him to the hospital where he died 36 hours later as a result of the multiple gunshot wounds.

The testimony of the defendant was in certain respects in conflict with that of three boys 16, 14, and 11 years of age, who heard the shots and witnessed certain events. The boys, who were some distance away, heard what they thought was a firecracker, which was apparently the first shot fired over the head of decedent by the defendant. They proceeded to the area from which they thought the noise came, and, while there, heard two shots and saw twe men run out the front door, the first man appearing to be chased by the second. They then heard what sounded like two more shots in the alley, after which the second man, who had chased the first, returned up the alley, got in a car and drove away. The description of the car given by the boys fit the car driven by the defendant. The boys then walked down the street and observed the decedent being taken away in an ambulance and advised the police of what they had seen.

The defendant was 20 years of age and had been staying with his mother in whose home the shooting occurred. He was home on leave from the Marine Corps where he had served two years and had reenlisted for four more years. His classification was that of Machine Gunner, and he was familiar with firearms and had some training in various self-defense techniques. He shot the decedent with a single action revolver which he had recently purchased and which was loaded with five .38 special shells.

According to the defendant, 'The State failed to prove a punishable crime, and the evidence in any event was insufficient to sustain a verdict of second degree murder' because the record clearly showed that he was defending himself, and the State failed to prove malice. He maintained he shot the decedent in self-defense because the decedent was threatening him with a beer bottle. Even if the jury agreed with defendant's version, i. e., that he shot the decedent four times while they were in the house, it would still have to consider the self-defense question. Here, where there was evidence of such a character that different inferences might reasonably be drawn, a question of fact was presented for the jury to determine. State v. Helton, 73 Wyo. 92, 276 P.2d 434, 441. It was the jury's duty to resolve the conflicting evidence, and, as here where there was substantial evidence to support its finding, the verdict must be sustained. Harris v. State, Wyo., 487 P.2d 800, 801.

Our statute, § 6-55, W.S.1957, provides:

'Whoever purposely and maliciously, but without premeditation, kills any human being, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty years, or during life.'

It is therefore necessary in order that the defendant be found guilty that the State prove beyond a reasonable doubt the defendant acted maliciously. State v. Bruner, 78 Wyo. 111, 319 P.2d 863; Nunez v. State, Wyo., 383 P.2d 726. We have previously held that use of a deadly weapon in a deadly and dangerous manner raises a presumption of malice. Ballinger v. State, Wyo., 437 P.2d 305, 309. There were, in addition to the use of a deadly weapon, facts and circumstances shown to raise an inference of malice.

In his argument that there was not sufficient evidence to sustain the conviction, the defendant cited evidence most favorable to his position. He ignored our often cited rule that evidence must be viewed by an appellate court in the light most favorable to the State upon an appeal from conviction. Bentley v. State, Wyo., 502 P.2d 203 at 208. While we believe the verdict supportable even under the defendant's view of the evidence, the correctness of the verdict becomes evident when considered in the light of all the evidence. The jury could well have believed the testimony of the three boys and not that of the defendant. If the jury believed their testimony, that is, that the defendant shot the decedent two times while they were in the house and then chased him down the alley and shot him two more times, the claim of self-defense would disappear. Also, the inference of malice would be so great as to logically defy any finding escept malice by the jury.

The defendant argued that the district court erred in failing to give his offered instruction concerning the defense of habitation, and referred to 41 C.J.S. Homicide § 386, p. 191 as authority that such an instruction should have been given. An examination of the citation shows that such an admonition is proper where the evidence warrants it, but should be refused when it is not supported by the issues and evidence. As we understand the issue as raised by him in the trial of this case, he was defending himself and not his house from invasion. The court instructed the jury on self-defense and the defendant made no objection that the instruction was insufficient but insists that the additional instruction should have been given. The C.J.S. citation referred to the Wyoming case of State v. Berger, 72 Wyo. 422, 265 P.2d 1061, wherein we said that where the defendant was invited upon the property and there was no trespass an instruction concerning the protection of property was not proper. The facts in this case warranted at most only a self-defense instruction. There was no basis for a defense-of-home instruction. The defendant's instruction claim would fail for the other basic reason that his objection to the court's refusal to give the instruction did not distinctly state the grounds of his objection as required by W.R.C.P. 51. The objection was that '* * * the failure of the Court to give said instruction to the jury is not in conformity with the laws of the State of Wyoming.' The objection must be specific so that the trial court is offered an opportunity on second thought to correct any failure to instruct. Bentley, supra, 502 P.2d at 206. To hold otherwise would negate that portion of the rule calling for specificity of objection which is based upon common sense necessity.

Over the defendant's objection the trial court admitted into evidence a colored photograph of the decedent which he argued was error. The photo was apparently taken after extensive surgery had been performed upon the decedent and after his death, but before the autopsy, showing two long incisions and stitches as the result of extensive abdominal surgery. The...