Smith v. State

• Decision Date: 01 June 1977
• Docket Number: No. 4702,4702
• Citation: 564 P.2d 1194
• Parties: Marlene Mary SMITH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1194

564 P.2d 1194

Marlene Mary SMITH, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4702.

Supreme Court of Wyoming.

June 1, 1977.

Rehearing Denied July 18, 1977.

Robert B. Denhardt, W. A. Smith & Associates, Lander, signed the brief and appeared in oral argument on behalf of appellant.

V. Frank Mendicino, Atty. Gen., and Arthur T. Hanscum, Asst. Atty. Gen., Cheyenne, signed the brief and Arthur T. Hanscum, Cheyenne, appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

Appellant-defendant was found guilty by a jury in the district court, of second degree murder in violation of § 6-55, W.S.1957, and sentenced to a penitentiary term of not less than 20 nor more than 40 years. On appeal, defendant raises seven separate issues which, for the purposes of disposition, can be consolidated into five questions:

1. Did the trial court err in refusing to remove case from consideration by the jury and direct a verdict of acquittal or manslaughter?

2. Did the trial court err in refusing to admit psychological testimony concerning defendant's state of mind at the time of commission of the crime as well as her propensity to tell the truth?

3. Did the trial court improperly reinstruct the jury after they reported a deadlock?

4. Did the trial court err in refusing to give defendant's proffered instruction dealing with inferences to be drawn from her testimony?

5. Was the sentence imposed harsh, oppressive, and an abuse of discretion?

We shall affirm.

For some time prior to the incident involved herein, defendant and her husband had been experiencing marital difficulties caused at least in part by Mr. Smith's less than clandestine relationship with the deceased, Dorothy Fancher. On the evening of November 13, 1975, Mr. Smith went bowling and when he had not returned by 3:30 a.m. of the morning of November 14, defendant went to see if his truck and the deceased's car were still parked in a bowling alley parking lot. Upon arrival, she observed that both vehicles were still parked as they were when she had first observed them at approximately 9:00 p.m. on the 13th while returning her daughter home from a girl scout meeting. Defendant then returned home, got her pistol, loaded it and returned to the parking lot. She parked beside her husband's pickup truck, facing the Silver Spur Motel, to wait for her husband and the deceased to emerge. At approximately 6:46 a.m. on November 14, the lights in the motel office came on. Defendant went to the office and asked what room her husband was in. The clerk told her, and she went to the door of that room. In response to her knocking, Mr. Smith answered. Defendant asked if the deceased, Dorothy Fancher, was inside; after first denying it, defendant's husband admitted she was there. Defendant asked to talk with both of them but her husband refused. He then closed the door to dress and upon reopening, became engaged with defendant in a rather heated confrontation outside the room. Defendant left the motel and, while returning to her car, saw the deceased drive from the parking lot and disappear down a street. While driving to her own home, defendant observed the deceased's car, turned and followed, catching her victim as she was walking from the car to her house. Defendant honked and motioned to the deceased to come over to the car where, after a brief verbal exchange, she fired one hollow point bullet into the upper thigh of the deceased at close range (an estimated four feet), the bullet exiting from the deceased's left lower back. After a few minutes, defendant knocked on the door of the deceased's house, was let in by the victim's mother and called the police. As a result of the gun shot wound, Dorothy Fancher died at approximately 12:00 noon on November 14, 1975.

At trial, defendant admitted having shot the deceased and that the death occurred as a result. Through counsel, she admitted her guilt to manslaughter. The sole argument asserted at trial by defendant was that she was guilty of manslaughter and not second degree murder, as charged.

Defendant alleges the trial court erred in refusing to remove the case from jury consideration and direct either a verdict of acquittal or manslaughter. At the close of the State's case in chief, defendant moved for a directed verdict of manslaughter, asserting that the State had failed to establish beyond a reasonable doubt the essential elements of second degree murder, i.e., purposely and maliciously. The trial judge denied this motion. Following the close of all the evidence, defendant again moved for a directed verdict of manslaughter, asserting there was no intent on her part to kill Ms. Fancher and that the killing occurred in a sudden heat of passion. That motion was also denied. Finally, following entry of the jury verdict, defendant moved for a judgment of manslaughter notwithstanding the verdict and, in the alternative, a new trial. That motion, as well, the trial court denied.

In view of the fact that defendant admitted having shot and killed the deceased, the only remaining issue at the close of the State's case was whether or not the evidence was sufficient to allow submission of the case to the jury with reference to the second degree murder elements of purpose and malice as opposed to manslaughter sudden heat of passion. ¹ As stated in State v. Spears, 1956, 76 Wyo. 82, 118-119, 300 P.2d 551, 566:

'* * * (W)hether a homicide is committed upon a sudden heat of passion or purposely and maliciously depends upon circumstances and conditions which the trier of fact is entitled to interpret. * * *' And if an 'uncontrollable passion' is found, it is again for the jury to decide whether that passion brought about the purpose to kill or the purpose to kill brought about the uncontrollable passion. Verdicts of acquittal are directed only when in the trial court's opinion there is no substantial evidence to sustain the material elements of the crime charged. Opie v. State, Wyo.1964, 389 P.2d 684. Reasonable doubt as to any disputed fact is for the jury, not within the province of the court, to draw.

The evidence in the case at bar, as recognized by even defense counsel on appeal, leans heavily toward malice and purpose, possibly even premeditation. Upon seeing that her husband's truck and deceased's car were both still parked in the proximity of a local motel at 3:30 a.m., defendant returned home, retrieved and loaded her gun, to then return to the motel to wait for her husband and the deceased to emerge. When they had not emerged by almost 7:00 a.m., the defendant went looking for them. When she found them, a heated argument ensued. After leaving the motel, defendant, purportedly headed for home, yet by chance or otherwise, she ended up following the deceased to her home. Following a brief verbal exchange, one shot was fired. The motive beyond that shot was a question for the jury at trial to decide. We cannot now say that there was a lack of credible evidence upon which to base a decision.

Purposely denotes intent. Use of a deadly weapon gives rise to a presumption of intent to kill. State v. Brierly, 1973, 109 Ariz. 310, 509 P.2d 203; Moser v. State, 1975, 91 Nev. 809, 544 P.2d 424. The court in State v. Greenwood, 1967, 197 Kan. 676, 421 P.2d 24, held evidence that defendant, after argument with fiance, purchased revolver, returned and shot her between the eyes, creates an inference of malice and intent. The design to kill is inferred from the act of killing. State v. Caryl, Mont. 1975, 543 P.2d 389; Grimes v. State, Okl.Cr. 1961, 365 P.2d 739. Intent to kill may be presumed from evidence that a person has assailed another violently with a dangerous weapon likely to kill, which presumption may be rebutted. State v. Anstine, 1966, 91 Idaho 169, 418 P.2d 210; see k145 and 146, Homicide, West's Digest System. Malice may be inferred from the use of a deadly weapon in a dangerous and deadly manner if the facts and circumstances so allow. Dodge v. State, Wyo.1977, 562 P.2d 303; State v. Bruner, 1958, 78 Wyo. 111, 319 P.2d 863; Eagan v. State, 1942, 58 Wyo. 167, 128 P.2d 215. The circumstances here were clearly sufficient to allow such an inference. The trial court's denial of defendant's motion for acquittal following presentation of the State's case in chief was not error.

Such reasoning also supports the trial court's denial of defendant's motion for a directed verdict of manslaughter following the close of all evidence, as well as its denial of her motion for a judgment notwithstanding verdict of manslaughter, or in the alternative, new trial, following return of the jury verdict. A trial judge does indeed have a duty to determine if there is sufficient 'credible and competent evidence' to support a jury's verdict. O'Neal v. State, Wyo.1972, 498 P.2d 1232; but that duty does not allow either this court nor any trial court to substitute its opinion for that of the jury. A jury's finding of fact or a judge's refusal to grant a new trial should not be interfered with if there is any substantial evidence to support it. Reilly v. State, Wyo.1972, 496 P.2d 899, reh. den. 498 P.2d 1236; Murdock v. State, Wyo.1960, 351 P.2d 674; State v. Spears, supra. The evidence presented here, viewed as it must be in the light most favorable to the State, more than adequately provides support for the trial court's denial of defendant's motion. Johnson v. State, Wyo.1977, 562 P.2d 1294. There was no error in the refusal of the court to take the case away from the jury.

At trial, defendant attempted to introduce, through the testimony of a psychologist, evidence concerning her state of mind at the time of the commission of the crime, as well as her propensity to tell the truth. In response to the State's objection based upon improper foundation and invasion of the province of the jury, the trial court rejected the testimony...