Sanders v. State, 99-48.

• Decision Date: 06 July 2000
• Docket Number: No. 99-48.,99-48.
• Citation: 7 P.3d 891
• Parties: Michael Anthony SANDERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

7 P.3d 891

Michael Anthony SANDERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-48.

Supreme Court of Wyoming.

July 6, 2000.

Rehearing Denied August 3, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; T. Alan Elrod, Assistant Appellate Counsel; Scott Mitchel Guthrie, Assistant Public Defender. Argument by Mr. Guthrie.

Representing Appellee: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Emily R. Rankin, Student Intern, and Patrick Moran, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Rankin and Mr. Moran.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

GOLDEN, Justice.

Michael Anthony Sanders (Sanders) appeals his conviction on one count of first degree murder in violation of Wyo.Stat.Ann. § 6-2-101(a) (Lexis 1999).¹ Sanders challenges the trial court's refusal to instruct the jury on the offense of voluntary manslaughter, and its admission of a statement given to police by his co-defendant. Finding no abuse of the trial court's discretion in either of those rulings, we affirm.

ISSUES

In his initial brief Sanders raises this issue:

Did the district court deprive Appellant of his due process right to a fair trial, and abuse its discretion by refusing to offer the jury the defense's theory of the case instruction and a manslaughter instruction, when the evidence clearly warranted such instruction, as a lesser-included offense?

Sanders offers this issue in a supplemental brief:

Whether the admission of Sharay Burnett's out of court statement to police officers was a violation of Michael Sanders' sixth amendment right to confrontation and not harmless beyond a reasonable doubt.

The State's brief contains this statement of the issues:

I. Did the district court properly refuse to instruct the jury on the offense of voluntary manslaughter?

II. Did the district court properly admit into evidence the out-of-court statements of Sharay Burnett under Wyoming Rule of Evidence 804(b)(3), which excepts statements against penal interest from the hearsay rule?

FACTS

The facts of this case are presented in our decision on the appeal of Sanders' co-defendant, Sharay Burnett. Burnett v. State, 997 P.2d 1023, 1025 (Wyo.2000).

In September 1997, Burnett and the victim moved in together and planned to be married. On October 8, 1997, Burnett's friend called her on the telephone. Sometime during their conversation, her friend had to use the restroom. He gave the telephone to Michael Sanders, and Sanders and Burnett conversed for several hours. Two evenings later, Sanders visited Burnett and the victim at their home. Sanders and the victim drank beer while Burnett cleaned another part of the home. The victim became intoxicated and despondent, and he told Sanders and Burnett he wanted to die. Sanders, obliging and resourceful, fashioned a weapon from a disposable razor, a plastic spoon, and a piece of electrical tape. Burnett filled the bathtub with water, kissed the victim goodbye, and went into the bedroom to chant and meditate. The victim got into the bathtub.

Within a few minutes, Burnett heard the victim scream repeatedly, "Please, I changed my mind. I don't want to do this. I changed my mind." When she went to the bathroom to investigate, she saw the victim was injured, but still alive. Sanders told Burnett he needed a sharper knife and specifically asked for a steak knife, which Burnett obtained for him from her kitchen. Burnett returned to the bedroom, where she heard the victim continue to plead with Sanders. She returned to the bathroom in time to see Sanders stab the victim in the neck with the steak knife. Burnett lit a cigarette for Sanders, and then she sat by the door while Sanders stabbed the victim several more times.

Burnett and Sanders agreed that, if anyone inquired about the victim, they would say he went to get beer and marijuana but never returned. They walked to a liquor store to purchase beer and snacks, and then they returned to the house where they talked until about five o'clock in the morning. Later that morning, Sanders told a co-worker about the killing, showed him the victim's body, and asked for help in disposing of it. The co-worker called the police, and the police proceeded to the house where they found Burnett and the body. After the police informed Burnett of her rights, she gave a detailed rendition of the previous night's events.

Sanders was arrested that same morning and charged with one count of first degree murder. His trial commenced on October 19, 1998. He was convicted and sentenced to life in prison. Sanders appeals his conviction to this Court.

DISCUSSION

Standard of Review

Sanders' claims of error concern jury instructions and the admission of evidence. We review a trial court's rulings in both of those areas under our abuse of discretion standard. Duckett v. State, 966 P.2d 941, 943-44 (Wyo.1998); Humphrey v. State, 962 P.2d 866, 870 (Wyo.1998). We have described that standard as follows:

We perceive the core of our inquiry as reaching the question of reasonableness of the choice made by the trial court. Hence-forth, we will turn to a definition adopted in Martin v. State, 720 P.2d 894, 897 (Wyo. 1986), in which we said:

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria: it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985).

Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998).

Jury Instruction

In his first assignment of error, Sanders scores the trial court for refusing his proffered jury instruction on voluntary manslaughter.² We review a refusal of a proposed lesser-included offense instruction by applying the following test:

The trial judge must first determine if all the elements of the lesser offense are found within the greater; and, if so, is there some evidence that would rationally permit the jury to find the accused guilty of the lesser and not guilty of the greater offense. If such evidence is present, the instruction should be given.

State v. Keffer, 860 P.2d 1118, 1140 (Wyo. 1993) (Cardine, J., concurring). See also Paramo v. State, 896 P.2d 1342, 1344 (Wyo. 1995)

("A district court's failure to give a lesser included offense instruction when such an offense indeed exists, and the evidence presented would support conviction upon that offense, constitutes reversible error. Eatherton v. State, 761 P.2d 91, 95 (Wyo.1988).")

Sanders contends, and we agree, that voluntary manslaughter is a lesser-included offense of first degree murder. See Warren v. State, 835 P.2d 304, 322 (Wyo. 1992) (Urbikit, C.J., dissenting)

. The first part of the Keffer test is therefore satisfied. The second part of the Keffer test requires us to determine whether the evidence presented at trial would have rationally permitted the jury to find Sanders guilty of manslaughter but not guilty of first degree murder. Sanders contends that the evidence supports a conclusion that he killed the victim but did so without malice. That characterization of the evidence, if accurate, would support a manslaughter instruction. In support of his claim that he killed without malice, Sanders points to testimony that he bore no ill will toward the victim; the victim asked Sanders to kill him; the two men drank beer together as new friends; and Sanders felt sorry for the victim.

We have accepted a definition of malice as an "intentional killing without legal justification or excuse and under circumstances which are insufficient to reduce the crime to manslaughter." Braley v. State 741 P.2d 1061, 1069 (Wyo.1987). Thus, his claim is sustainable if the evidence at trial would allow the jury to reasonably conclude that he killed the victim with legal justification, or under circumstances that reduce the crime to manslaughter.

Sanders claims legal justification from the testimony that the victim wanted to die and asked Sanders to kill him. While there exists no Wyoming statutory or case law directly on point, an abundance of authority from other sources demonstrates the rule that a victim's consent to be killed is not a defense to a homicide charge. Gentry v. State, 625 N.E.2d 1268, 1273 (Ind.App.1993) ("First, consent is not a defense to conduct causing another human being's death."); State v. Couser, 567 N.W.2d 657, 660 (Iowa 1997) ("A substantial number of cases from other jurisdictions hold that one who actually performs or actively assists in performing an overt act resulting in the death of another person is guilty of homicide, irrespective of the victim's desire to die."); 40 Am.Jur.2d Homicide § 105 (1999) ("In application of the general principle that private persons cannot license crime, so that the criminal cannot be excused by anyone's consent thereto, it is the rule that, in a prosecution for homicide, consent of the deceased is no excuse. The right to life and to personal security is not only sacred in the estimation of the common law, but it is inalienable.") Sanders, therefore, cannot show that he was legally justified in killing the victim.

To convince this Court that he killed the victim under circumstances that reduce the crime to manslaughter, Sanders would need to show that he acted in the heat of passion. We have accepted the following definition of that term:

"Heat of passion" means such passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar circumstances as those in question which would cause him to act rashly, without reflection and deliberation, and from passion rather than from judgment.

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