Smith v. State

Decision Date24 April 1989
Docket NumberNo. 88-116,88-116
Citation773 P.2d 139
PartiesCharles Carlos SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

David Serelson, Asst. Public Defender, Public Defender Program, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen., for appellee.

Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ., and LANGDON, District Judge.

LANGDON, District Judge.

Appellant Charles Carlos Smith was convicted of murder in the second degree in the killing of William J. Duplantis, Jr., in Appellant presents the following issues:

Sublette County. The killing occurred on May 6, 1987. On March 9, 1988, he was sentenced to the Wyoming State Penitentiary for a term of twenty to twenty-five years, with a maximum/minimum credit of 302 days already served in the local jails. It is from this sentence that appellant appeals.

Issue I

Did the trial court err in denying Appellant's motion for a mistrial when Appellant was seen in handcuffs by jurors?

Issue II

Did the trial court err in refusing to instruct the jury on self-defense or defense of others?

Issue III

Did the trial court improperly limit voir dire or err in failing to excuse a juror for cause?

Issue IV

Was Appellant denied his right to a trial by jury?

Issue V

Was it an abuse of discretion to allow notetaking by the jury or error [not] to instruct the jury on notetaking at the close of the case?

We affirm the trial court on all of these issues.

The principals in this sad escapade are appellant, the decedent, and Matthew Wilder (the nineteen-year-old son of Teddy Dabney, the woman with whom appellant had been living in Pinedale, Wyoming). Dabney and appellant had a domestic argument, resulting in a request by Dabney that appellant leave her quarters. He agreed and suggested that he be allowed to take Wilder with him to Oklahoma to work on a farm owned by appellant's mother. Dabney agreed, as did Wilder. Appellant had formerly been employed on a nearby ranch in Sublette County, and he and Wilder proceeded to said ranch in order to pick up appellant's belongings. There they encountered the decedent, who had been employed at the ranch after appellant had terminated his own employment. The decedent invited appellant and Wilder to his cabin, where drinking commenced in earnest by appellant and the decedent and which matured into a fight, leading to a nonfatal slashing and stabbing of the decedent by appellant. Angered, the decedent attempted to reach a gun. In order to prevent this, appellant kicked the decedent in various and sundry parts of his body, rendering him immobile. Appellant then gave Wilder the subject gun to "hold on" the decedent while appellant tied the decedent's hands and feet. They placed the decedent in appellant's car and drove to the place where the killing occurred. There they removed the decedent from the car. Appellant took off the rope bindings and told Wilder to remain with the car. This occurred during the late hours of May 5 or the early hours of May 6, 1987. Shots were fired, after which appellant alone returned to the car. Wilder and appellant went to Pinedale, Wyoming, where they cleaned the blood out of the car and burned the soiled clothing. They thereafter left, heading for the Sunlight Basin north of Powell. It was in Powell, about a week later, where they turned themselves in.

Late in the morning of May 6, 1987, while on his way to Daniel, on U.S. Highway 189 near the Faler Creek bridge, one Jerry Lopez saw the decedent lying face down in Faler Creek. Subsequent investigation by law officers and state investigators disclosed that, in addition to the injuries previously mentioned, the decedent had suffered two gunshot wounds in the back of his head and that he was very much dead.

HANDCUFFS

The evidence discloses that the courthouse in Sublette County is somewhat cramped and that a criminal jury trial presents special space problems. The back porch of the courthouse was one of the designated smoking areas, and three jurors, taking advantage of same and in order to enjoy their smoking, observed appellant being transferred from the jail to the courtroom before an afternoon session. Appellant was wearing handcuffs. (There were no restraints upon the person of appellant The general law applicable in situations where jurors see a handcuffed defendant is that, absent a showing of prejudice, their observations do not constitute grounds for a mistrial because of fundamental constitutional error. Gates v. Zant, 863 F.2d 1492 (11th Cir.1989); Hamrick v. People, 624 P.2d 1320 (Colo.1981); State v. Moreno, 128 Ariz. 33, 623 P.2d 822 (Ct.App.1980); State v. Williams, 48 Or.App. 319, 617 P.2d 629 (1980); State v. Pendergrass, 189 Mont. 127, 615 P.2d 201 (1980).

                during the course of the court proceedings themselves.)   Appellant claims this to be a violation of his Sixth Amendment and Fourteenth Amendment rights to a fair trial because it prejudiced the jurors who saw him.  Prior to the commencement of said afternoon session, appellant moved for a mistrial because of the incident.  There was nothing in the record which identifies the three jurors, nor is there any evidence presented to show that appellant was prejudiced thereby.  As a practical matter, in the case at bar the jury had already been selected and had heard one-half day of testimony, with appellant being present in the courtroom.  Also, prior to that, the jury had listened to a day of jury voir dire examination touching on aspects of the case, including certainty of a murder, the identity of appellant, and the reasons for both the jurors and appellant being at the courthouse.  The encounter was simply a brief and incidental one of no particular significance
                

As stated in Gates, 863 F.2d at 1501:

[A] defendant is not necessarily prejudiced by a brief or incidental viewing by the jury of the defendant in handcuffs. * * * [T]he courts generally have held that the defendant must make some showing of actual prejudice before a retrial is required.

INSTRUCTION ON SELF-DEFENSE OR DEFENSE OF ANOTHER

It is not quite clear from the record whether appellant complied with the requirements of W.R.Cr.P. 31 and W.R.C.P. 51 in dealing with the trial court's refusal to give an instruction on the issues of self-defense and defense of another. W.R.Cr.P. 31 requires that objections to instructions shall be made in the manner set forth in W.R.C.P. 51. W.R.C.P. 51 requires that objections be made before the jury retires to consider its verdict and that the objections must distinctly state the matter to which they are made and the grounds therefor.

Appellant did offer an instruction on self-defense and defense of another, instruction number 13, and submitted a brief in support thereof. This instruction was refused by the court. Neither the record nor the transcript reveals compliance by appellant with W.R.Cr.P. 31 and W.R.C.P. 51, and the State urges that the objection is waived.

Appellant raises the Sixth Amendment and Fourteenth Amendment violations, arising from the trial court's refusal to give an instruction on self-defense and defense of another, as were raised in the handcuff issue. We reach the same constitutional conclusion. Without question, an accused has a right to instructions upon his or her theories of the case and his or her defenses thereto if: (1) the instructions are sufficient to inform what these theories consist of, and (2) there is competent evidence to support the law expressed in said proposed instructions. Sanchez v. State, 694 P.2d 726 (Wyo.1985).

That appellant proffered a legally sufficient instruction is not the issue; the issue is the development at trial of the supporting competent evidence. Appellant urges, as support for the need for the instruction, that decedent had previously been arrested for attempted homicide, had owned a handgun, and had previously shot two people, as based upon a newspaper clipping. When considered in the light of the events transpiring immediately prior to the killing, these facts, even if true, are irrelevant.

The events occurring prior the killing of the decedent--i.e., the slashing and stabbing of the decedent, the attempt by the decedent to retrieve his gun, the beating of the decedent by appellant and the "Self-defense" has been defined as a justifiable homicide

recovery by appellant of the decedent's gun, the binding of the decedent's hands and feet at gunpoint and the subsequent transportation of the decedent by appellant and Wilder to the scene of the killing, the removal of the decedent by appellant from the vehicle and the taking of the decedent to the creek beside the highway, and the unequivocal testimony of appellant that he did not shoot the decedent but that Wilder did so accidentally--collectively do not constitute evidence to support self-defense or defense of another.

where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.

Foley v. State, 11 Wyo. 464, 480, 72 P. 627 (1903) (emphasis in original). This definition is as valid today as it was eighty-six years ago. See Best v. State, 769 P.2d 385 (Wyo.1989); Jahnke v. State, 682 P.2d 991 (Wyo.1984); Leeper v. State, 589 P.2d 379 (Wyo.1979); and Nunez v. State, 383 P.2d 726 (Wyo.1963). In the alternate situation wherein there are an assailant, a defendant, and a defender--i.e., defense of another--the standards are not changed. The defender is justified in using force if he or she reasonably believes that the person defended is in immediate danger of unlawfully inflicted bodily harm and that the force is reasonable and...

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