Small v. State, No. 84-26

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore ROONEY; BROWN
Citation689 P.2d 420
PartiesBenjamin SMALL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberNo. 84-26
Decision Date02 October 1984

Page 420

689 P.2d 420
Benjamin SMALL, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 84-26.
Supreme Court of Wyoming.
Oct. 2, 1984.
Rehearing Denied Oct. 30, 1984.

Page 421

Leonard D. Munker, State Public Defender, Wyoming Public Defender Program; and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., Michael A. Blonigen, Asst. Atty. Gen., Cheyenne, for appellee.

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

BROWN, Justice.

Appellant was convicted by a jury of involuntary manslaughter. Because his status was also determined by the jury to be that of an habitual criminal, his sentence was enhanced to life imprisonment.

According to appellant the issues are:

"I. Whether Appellant's constitutional right to due process of law was abridged by the trial court's refusal to instruct the jury regarding the burden of proof on the issue of self-defense.

"II. Whether the trial court erred in its instructions to the jury regarding the law on the issue of duty to retreat.

"III. Whether the enhanced penalty provisions of the habitual criminal statute violate constitutional guarantees of equal protection of the law when invoked against an accused charged with involuntary manslaughter.

"IV. Wyoming Statute § 6-10-201 (1983 Cum.Supp.) et seq. violates procedural due process at sentencing."

We will affirm.

Appellant Benjamin Small and his nephew William Hairston, after leaving a Cheyenne bar, became stuck in the mud along Crow Creek. Eddie Vigil, while driving by, stopped to give aid. The combined efforts of Small, Hairston and Vigil to extricate Hairston's car from the mud were unsuccessful. The three of them left the Hairston car and started in Vigil's car to the residence of Hairston's brother, Jerome Hairston.

Page 422

During the attempt to free Hairston's car from the mud and during the ride in Vigil's car, Small and Vigil exchanged racial slurs. Vigil stopped his vehicle near the 3000 block of Thomes in Cheyenne, having driven past Jerome Hairston's house. After stopping, Vigil and Hairston fought. Vigil was badly beaten. After Hairston left the scene of the conflict Vigil got up on his hands and knees and attempted to blow blood out of his nose and mouth. At this point appellant approached Vigil, and a fight between appellant and Vigil erupted. Appellant got on top of Vigil, and he kicked him on the face and head. The combatants briefly disengaged, but appellant remained, and talked and quarreled with Vigil. The affray resumed and appellant threw Vigil to the ground. Vigil hit his head on the pavement and did not move after that. Appellant then placed Vigil into the latter's vehicle and parked it around the corner.

Eddie Vigil died as a result of massive head trauma induced by a blunt object. He was a young chicano male about five foot two inches, weighing 130 pounds. Hairston and Small are black, the latter, six feet two inches tall. It was obvious to both Hairston and Small that Vigil was very drunk.

On December 14, 1983, appellant was convicted of involuntary manslaughter in violation of § 6-2-105(a)(ii)(B), W.S.1977. Appellant was also found to be an habitual criminal and because of this status he was sentenced to life imprisonment according to § 6-10-201, W.S.1977 (June 1983 Replacement).

I

Appellant assigns as error the court's refusal to specifically instruct the jury that the state must prove beyond a reasonable doubt that the defendant (appellant) did not act in self-defense. We recently addressed this problem in Scheikofsky v. State, Wyo., 636 P.2d 1107, 1112 (1981):

"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. * * * "

Under the facts as related by appellant it is very difficult to view this as a self-defense case. Appellant said, "I was scared." However, there was nothing of substance in the testimony indicating that self-defense was involved. Out of an abundance of caution the trial judge gave eight instructions on self-defense.

The trial court also instructed the jury that one of the necessary elements of involuntary manslaughter was that "the defendant acted recklessly." In another instruction the court defined "recklessly." The state proved to the satisfaction of the jury that appellant acted recklessly. The same evidence that proved appellant acted recklessly also proved that appellant did not act in self-defense since proof of recklessness under the facts of this case negates self-defense. A finding of recklessness is inconsistent with, and precludes a finding of, self-defense.

"* * * When recklessness is an element of the crime charged, and the court properly instructs the jury on the elements of recklessness, the jury must determine, before it may convict, that the accused knew of and disregarded a substantial risk that a wrongful act would occur and that such disregard was a gross deviation from the conduct of a reasonable person in the same situation. Such a finding is totally inconsistent with self-defense. A person acting in self-defense cannot be acting recklessly. Thus, if the jury is able to find that a defendant acted recklessly, it has already precluded a finding of self-defense. * * *" State v. Hanton, 94 Wash.2d 129, 614 P.2d 1280, 1282 (1980).

We hold that the instructions, taken as a whole, adequately informed the jury of the state's burden of proof, including the

Page 423

negation of appellant's assertion of self-defense.

In the State of Washington appellate courts have long held that the trial court was not necessarily required to instruct the jury that a burden to prove absence of self-defense rested on the prosecution. State v. Hanton, supra. The rationale of the Washington cases was similar to the reasoning we employed in Scheikofsky v. State, supra. That is a totality of the instructions test. Recently, however, in State v. McCullum, 98 Wash.2d 484, 656 P.2d 1064, 1073-1074 (1983), in a plurality decision, the Washington Supreme Court modified their previous decision by stating:

"* * * While we continue to believe specific burden of proof instructions technically are not necessary, it may be preferable to do so for the sake of clarity. Simply setting forth the elements of the crime without explanation of how self-defense relates to those elements may, itself, cause a jury some confusion as to where the burden of proof lies. Without a clear instruction on the subject, the potential for misinterpretation is simply too great.

"We think the best policy regarding such specific jury instructions is summarized in Notaro v. United States, 363 F.2d 169, 175 (9th Cir.1966):

" 'The desire of a careful judge to avoid language which to him may seem unnecessarily repetitive should yield to the paramount requirement that the jury in a criminal case be guided by instructions framed in language which is unmistakably clear. * * *'

"* * * [W]e feel this is the better approach to handling burden of proof issues regarding self-defense, at least when a specific instruction is requested by the defendant. A specific instruction on the burden of proof as to self-defense should serve three desirable ends: (1) clarify burden of proof questions and reduce the chances for jury confusion; (2) make appellate review of such issues easier, especially as to sufficiency of the evidence challenges; and (3) reduce the likelihood that future convictions would have to be reversed for errors similar to the one presented here." See also United States v. Corrigan, 548 F.2d 879 (10th Cir.1977).

We agree with the McCullum, Notaro and Corrigan cases; henceforth, when self-defense is properly raised the jury should be specifically instructed that the state has the burden to prove absence of self-defense beyond a reasonable doubt. Such an instruction would eliminate any possible confusion for a jury. However, in this case, as in McCullum, failure to specifically instruct that the state has the burden to prove absence of self-defense beyond a reasonable doubt is not reversible error.

II

The trial court gave the following instruction:

"Even if the defendant has reasonable ground to believe and actually did believe that he was in imminent danger of death or serious bodily harm, he was justified in using deadly force to repel the danger only if he retreated as far as he safely could before doing so. The law requires a person to retreat rather than to take the life of his adversary if there was a convenient mode of retreat without increasing his peril or apparent peril. To excuse a failure to retreat, it is necessary the defendant's peril would be increased, or that it reasonably appeared that it would be increased by retreat. If you find that the defendant could have safely retreated but failed to do so, the defendant cannot rely on the justification of self-defense."

The instruction on self-defense given by the court was taken from the Wyoming Pattern Jury Instructions Criminal, No. 5.207. This identical instruction was given and approved by this court in Garcia v. State, Wyo., 667 P.2d 1148 (1983). Appellant objected to this instruction and offered the following substitute instruction, which the court refused.

Page 424

"You are instructed that a person who provokes or brings about an incident in which he kills his assailant cannot invoke the right of self-defense, unless he, in good faith, retreats as far as he safely can, and making that fact manifest to his adversary.

"However, an individual who is without fault in bringing about the incident in which he kills his assailant need not restrict...

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30 practice notes
  • Greenwalt v. Ram Restaurant Corp., No. 01-103.
    • United States
    • United States State Supreme Court of Wyoming
    • June 26, 2003
    ...of a statute beyond a reasonable doubt. F.C.C. v. Beach Communications, Inc., 508 U.S. at 315, 113 S.Ct. at 2102; Small v. State, 689 P.2d 420, 426 (Wyo.1984) Nehring, 582 P.2d at 74. 4. Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choi......
  • Sam v. State, S-16-0168.
    • United States
    • United States State Supreme Court of Wyoming
    • August 24, 2017
    ...did not act in self-defense, and the jury must be instructed accordingly." Id. at ¶ 22, 311 P.3d at 124-25 (citing Small v. State , 689 P.2d 420, 423 (Wyo. 1984) ; Olsen v. State , 2003 WY 46, ¶ 144 n.12, 67 P.3d 536, 589, n.12 (Wyo. 2003) ). [¶46] We assume that the district court fou......
  • ALJ, Matter of, No. C-90-9
    • United States
    • United States State Supreme Court of Wyoming
    • June 30, 1992
    ...similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed.' " Small v. State, 689 P.2d 420, 425 (Wyo.1984), cert. denied, 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 (1985) (quoting State v. Freitas, 61 Haw. 262, 602 P.2d 914, 922 (197......
  • Nowack v. State, No. 87-74
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1989
    ...have noted the legislative purpose to reduce the carnage on the highways. Felske v. State, 706 P.2d 257, 261 (Wyo.1985); Small v. State, 689 P.2d 420, 426 (Wyo.1984), cert. denied 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 12 While Blockburger involved multiple convictions in a single tr......
  • Request a trial to view additional results
30 cases
  • Greenwalt v. Ram Restaurant Corp., No. 01-103.
    • United States
    • United States State Supreme Court of Wyoming
    • June 26, 2003
    ...of a statute beyond a reasonable doubt. F.C.C. v. Beach Communications, Inc., 508 U.S. at 315, 113 S.Ct. at 2102; Small v. State, 689 P.2d 420, 426 (Wyo.1984) Nehring, 582 P.2d at 74. 4. Equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choi......
  • Sam v. State, S-16-0168.
    • United States
    • United States State Supreme Court of Wyoming
    • August 24, 2017
    ...did not act in self-defense, and the jury must be instructed accordingly." Id. at ¶ 22, 311 P.3d at 124-25 (citing Small v. State , 689 P.2d 420, 423 (Wyo. 1984) ; Olsen v. State , 2003 WY 46, ¶ 144 n.12, 67 P.3d 536, 589, n.12 (Wyo. 2003) ). [¶46] We assume that the district court fou......
  • ALJ, Matter of, No. C-90-9
    • United States
    • United States State Supreme Court of Wyoming
    • June 30, 1992
    ...similarly situated shall be treated alike, both in the privileges conferred and in the liabilities imposed.' " Small v. State, 689 P.2d 420, 425 (Wyo.1984), cert. denied, 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 (1985) (quoting State v. Freitas, 61 Haw. 262, 602 P.2d 914, 922 (197......
  • Nowack v. State, No. 87-74
    • United States
    • United States State Supreme Court of Wyoming
    • May 9, 1989
    ...have noted the legislative purpose to reduce the carnage on the highways. Felske v. State, 706 P.2d 257, 261 (Wyo.1985); Small v. State, 689 P.2d 420, 426 (Wyo.1984), cert. denied 469 U.S. 1224, 105 S.Ct. 1215, 84 L.Ed.2d 356 12 While Blockburger involved multiple convictions in a single tr......
  • Request a trial to view additional results

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