Scheikofsky v. State

Decision Date24 November 1981
Docket NumberNo. 5511,5511
PartiesSharron SCHEIKOFSKY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael H. Schilling, Appellate Counsel, Wyoming Public Defender Program, Laramie, and Steven R. Helling, Legal Intern, Wyoming Public Defender Program, signed the brief on behalf of appellant. Steven R. Helling appeared in oral argument.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Senior Asst. Atty. Gen. and Mark P. Higgins, Legal Intern, Cheyenne, signed the brief on behalf of appellee. Gerald A. Stack and Mark P. Higgins appeared in oral argument on behalf of appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

The State brought appellant Sharron Scheikofsky to trial on the charge of second-degree murder of Lowell Scheikofsky, her husband. A jury convicted appellant of voluntary manslaughter, and the trial court sentenced her to ten to fifteen years in prison. Appellant appeals her conviction and sentence. She asserts that the trial court erred in the instructions it gave concerning her theory of the case-self-defense-and concerning the State's burden of proof on the self-defense claim. She also asserts that the trial court abused its discretion by imposing an excessive sentence on her.

We affirm.

The trial court gave two of its own instructions at trial, one concerning self-defense and one concerning burden of proof. Appellant did not object to the instructions.

Rule 51, W.R.C.P., applicable to criminal appeals via Rule 31, W.R.Cr.P., provides:

" * * * No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * * "

The purpose of Rule 31, W.R.Cr.P., is to offer the trial judge an opportunity to correct erroneous proposed instructions, or at least to clarify them. Downs v. State, Wyo., 581 P.2d 610 (1978); Bentley v. State, Wyo., 502 P.2d 203 (1972). Since no objection was made to the instructions, appellant is precluded from seeking review of them unless she can show plain error as provided in Rule 49(b), W.R.Cr.P. 1 Downs v. State, supra; Daellenbach v. State, Wyo., 562 P.2d 679 (1977). The plain error rule is applied cautiously and only in exceptional circumstances. Hays v. State, Wyo., 522 P.2d 1004 (1974).

I

Appellant contends that Instruction No. 13 did not present her theory of the case to the jury, which is prejudicial error requiring reversal. A defendant does have the right to have his theory of the case affirmatively presented to the jury, provided that the offered instruction is sufficient to inform the court of the defendant's theory and provided that there is competent evidence in the record to support it. Failure to do so is prejudicial error. Goodman v. State, Wyo., 573 P.2d 400 (1977); Benson v. State, Wyo., 571 P.2d 595 (1977); State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119 (1947).

The question here is different from that in Goodman v. State, supra. There, no instruction at all was given on the defendant's theory of the case. Here an instruction on appellant's theory of the case was given, so that the question now before us is the sufficiency and correctness of the instruction. The appellant proposed three instructions which we assume were meant to present her theory of the case to the jury. They dealt with burden of proof, relative sizes and ages of the appellant and the victim, and the fact that the defendant fired several shots. 2 The trial court rejected the proposed instructions and supplied Instruction No. 13 instead:

"A person is justified in the use of force to defend oneself against an aggressor's imminent use of unlawful force to the extent it appears reasonable to that person under the circumstances then existing."

The court may choose to present its own instruction covering the defendant's theory of the case. We said in State v. Hickenbottom, supra, 178 P.2d at 131, that the defendant had a right to have his main defense in the case affirmatively presented to the jury, and that "the defendant's requested instruction, * * * or one similar to it should have been given by the District Court * * *." (Emphasis added.)

We think that the court's Instruction Number 13 affirmatively presented appellant's theory of the case, and that Mrs. Scheikofsky may have even received a benefit from Instruction Number 13. To claim self-defense, a defendant's belief about the necessity of defending himself must be based on reasonable grounds. A subjective belief of danger will not alone suffice; the defendant's belief of danger must also be reasonable. Leeper v. State, Wyo., 589 P.2d 379, 382 (1979); State v. Sorrentino, 31 Wyo. 129, 138-139, 224 P. 420, 34 A.L.R. 1477 (1924); Loy v. State, 26 Wyo. 381, 390, 185 P. 796 (1919). It is quite possible that the jury could have construed the words "reasonable to that person under the circumstances then existing * * * " (emphasis added) to mean that only appellant had to see the danger as imminent, not that a reasonable person similarly situated would have had to believe danger was imminent. Even assuming this were an erroneous instruction, it is certainly not cause for reversal, since it seems to favor appellant in its statement of the law of self-defense. Mainville v. State, Wyo., 607 P.2d 339 (1980). 3

To show plain error, appellant has to show a violation of a clear and unequivocal rule of law and has to show that she has been materially prejudiced by that violation. Settle v. State, Wyo., 619 P.2d 387, 389, citing Madrid v. State, Wyo., 592 P.2d 709, 710 (1979). She has failed to show any harm here, let alone that harm required by the plain error rule.

II

Appellant also objected on appeal to jury Instruction No. 12 on the ground that it failed to adequately and clearly set out the State's burden of proof on her claim of self-defense and was therefore plainly erroneous. 4 The court long ago made its pronouncement on the burden of proof in homicide cases. Trumble v. Territory, 3 Wyo. 280, 21 P. 1081, 6 L.R.A. 384 (1889). In a prosecution for first-degree murder, the trial court gave an instruction that, if the prosecutor had failed to prove premeditation and deliberation beyond a reasonable doubt, the law would presume the killing to be murder in the second degree in the absence of further evidence. The burden, said the instruction, would fall on the defendant to show that the killing was justifiable or excusable. The instruction was erroneous, and the court so held:

" * * * But if the defendant is presumed to be innocent until his guilt is established, and if the prosecutor must prove every material allegation of the indictment-every element of guilt-beyond reasonable doubt, before he can ask for a conviction, how can the burden of proof upon any question ever fall upon the defendant? * * * " Trumble v. Territory, supra, 21 P. 1081, at 1083.

Because the instruction in the case before us failed to specifically allocate the burden of disproving self-defense to the State, appellant argues that the instruction could have permitted the jury to believe that the defendant, having raised the issue of justification, was obligated to prove it. However, appellant has to do more than conjecture about what the jury could have believed. A mere allegation of prejudice will not suffice to invoke the plain error rule.

This court examines instructions in their entirety when it is called upon to decide whether instructions are erroneous. Snyder v. State, Wyo., 599 P.2d 1338 (1979); and Cullin v. State, Wyo., 565 P.2d 445 (1977). They must be considered as a whole and not according to isolated phrases and paragraphs. Hoskins v. State, Wyo., 552 P.2d 342 (1976), reh. denied 553 P.2d 1390 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977); and Loy v. State, supra. Here, the instructions taken as a whole stated the law correctly. The State claimed that the murder was accomplished with malice. Malice is an essential element in the prosecution of a murder case; it must be shown beyond a reasonable doubt. State v. Bruner, 78 Wyo. 111, 319 P.2d 863 (1958); and Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942). This court and other courts define the term malice as the intentional killing of a human being by another, without legal justification or excuse and under circumstances which are insufficient to reduce the crime to manslaughter. Nunez v. State, Wyo., 383 P.2d 726, 729 (1963); and State v. Sorrentino, supra 31 Wyo. at 140, 224 P. 420. See also State v. Dunnan, 223 Kan. 428, 573 P.2d 1068, 1071 (1978); and State v. McIntyre, 106 Ariz. 439, 477 P.2d 529, 532 (1970). Instruction No. 2 told the jury that malice had to be proved beyond a reasonable doubt. Instruction No. 4 defined malice as the commission of a wrongful act done intentionally without legal justification or excuse. 5 Instruction No. 12 told the jury that it was to find the defendant not guilty if it had any reasonable doubt as to the truth of any claim made by the State. The State claimed the existence of malice; therefore, the State also claimed lack of justification, albeit indirectly.

The inclusion of a specific statement of the burden of proof would have been preferable, but failure to include it is not reversible error per se. The test should be whether the instructions, taken as a whole, adequately informed the jury that the prosecution's burden of proof beyond a reasonable doubt included negating appellant's assertion of self-defense. We hold that the instructions, taken as a whole, did adequately inform the jury of the State's burden of proof in this case.

III

Appellant proposed several instructions of her own (See fn. 5.) concerning burden of proof and self-defense. She presented argument in favor of her proposed instructions after the...

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