Schmunk v. State, 84-176
| Decision Date | 13 February 1986 |
| Docket Number | No. 84-176,84-176 |
| Citation | 714 P.2d 724 |
| Parties | Robert F. SCHMUNK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Terry W. Mackey and Robert W. Tiedeken of Terry W. Mackey, P.C., Cheyenne, and James M. Shellow (argued), Stephen M. Glynn, and Janice A. Rhodes of Shellow, Shellow & Glynn, S.C., Milwaukee, Wis., for appellant (defendant).
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen. (argued), Sylvia Lee Hackl, Asst. Atty. Gen. (argued), and
Frank D. Peasley, Converse County and Pros. Atty., for appellee (plaintiff).
Before THOMAS, C.J., and ROSE, * ROONEY, ** BROWN and CARDINE, JJ.
Appellant was charged with violation of § 6-2-101, W.S.1977 1 and under this statute found guilty of first degree murder in the drug overdose death of his wife Kay Marie Schmunk. He appeals from the judgment entered upon the jury's verdict and his sentence of life imprisonment.
The critical question presented for our determination is whether several errors occurring during the course of trial, when considered together, created sufficient prejudice to deprive appellant of a fair trial. Without question cumulative error may assemble in such proportion that reversal is required. Browder v. State, Wyo., 639 P.2d 889 (1982); State v. Allies, 186 Mont. 99, 606 P.2d 1043 (1979).
We reverse.
Appellant Robert Schmunk, and Kay Schmunk were married in 1972 while residents of the State of Michigan. It was the second marriage for each of them. Kay Schmunk's two children from her prior marriage, Theresa Duncan and Bill Duncan, lived with appellant and Kay Schmunk during the time they resided in the State of Michigan. During 1979, appellant, his wife Kay Schmunk, and her son Bill Duncan, moved to Douglas, Wyoming where appellant commenced a general practice of medicine.
Kay Schmunk had suffered severe migraine headaches for many years prior to her death. Appellant prescribed oral medication and administered intramuscular injections of medication for these headaches on numerous occasions. Kay Schmunk was also examined by several physicians with respect to her headaches and other medical problems. On May 6, 1981, she was seen by a neurologist in Casper, Wyoming, who stated in a written report:
Robert Schmunk, Kay Schmunk, and her son, Bill Duncan, played a card game the evening of July 14, 1983. Kay Schmunk complained of a headache and, about midnight, appellant administered by intramuscular injection methadone, a narcotic, to relieve her pain. The card game continued for perhaps another thirty minutes before Kay Schmunk and appellant retired for the evening. About 2:00 a.m., appellant was aware that his wife was still in pain and, after some discussion with her, administered another narcotic injection, demoral. Appellant then fell asleep. He was awakened again about 4:30 a.m. with Kay Schmunk advising him that her headache was more severe, the worst she had ever had. Appellant then injected her with a third narcotic drug, morphine. About 6:30 a.m., he awakened and observed that his wife was not breathing. Appellant attempted resuscitation but was unsuccessful.
Mrs. Schmunk was taken to the emergency room at the Converse County Memorial Hospital where further efforts to resuscitate her failed, and she was pronounced dead.
An autopsy was performed July 16, 1983. The autopsy disclosed no apparent cause of death. The results of toxicology testing revealed that two of the narcotic drugs injected by appellant were three times the amount that would be consistent with the dosages reported by appellant. Appellant said he could not account for the quantity of drugs found by toxicology and insisted he had injected only the lesser amount he had reported. The cause of death was determined to be acute narcotic overdose resulting in respiratory depression and acute pulmonary edema.
The State began the trial in this case by telling the jury that it was not required to prove motive; that nevertheless it would produce evidence that would establish for the jury the motive, the reason why Dr. Robert Schmunk killed his wife, Kay Marie Schmunk. It was the theory of the State that Dr. Schmunk had "two diametrically opposed personalities." There was one Dr. Schmunk who was a devout person, worked selflessly for his church, and who appeared to have a normal loving relationship with his wife and a happy marriage. The other Dr. Schmunk, the State claimed, was a man unhappily married, whose wife was imperfect, and who was permanently leaving him to obtain a divorce. The imperfection in Kay Marie Schmunk was an apparent reference to her severe migraine headaches and dependency on drugs. With respect to the second Dr. Schmunk, the prosecutor told the jury, there is "a dark side to this man, to his mind."
The State of Wyoming staked its entire case of first degree murder upon the proposition that there was a dark, mysterious side to Dr. Schmunk, a man with a split personality who could not accept imperfection in Kay Schmunk and who, with premeditated malice, put her to sleep with drugs. In final argument to the jury, the prosecutor, summarizing the State's case, said:
Thus, the State of Wyoming conceded that Dr. Schmunk had no girlfriend and that the killing was not for profit or revenge or because of jealousy, but because of a mysterious side of Dr. Schmunk that caused The issues for our determination, as framed by appellant, are:
him to kill what was imperfect. Appellant claims that there was no evidence from which the jury could find that he possessed a "dark side," a "mysterious side," a "split personality" that caused him to kill what was imperfect. He claims that the State's effort to prove that dark, mysterious side, the split personality, rested upon speculation, conjecture and innuendo resulting from the erroneous admission of a videotape interview, hearsay and other evidence and testimony, the cumulative effect being to deny him a fair trial.
We will not address other issues raised by appellant because they are unnecessary to our decision in this case.
On September 13, 1983, at the request of the investigator in this case, appellant went voluntarily to the sheriff's office to be interviewed concerning the death of Kay Schmunk. The interview was recorded on videotape secretly, without his knowledge. The video camera photographed appellant seated at a table and mostly showed the side and back of his head. Appellant cooperated fully with the investigator in giving the interview. There is no question but that the interview was given voluntarily and with full knowledge and waiver of Miranda rights. The day following the interview, appellant was indicted by the grand jury and charged with first degree murder.
At the end of the interview, the following questions were asked and answered:
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