Smith v. State, S-19-0226

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: DAVIS, Chief Justice.
• Citation: 480 P.3d 532
• Parties: Marty May SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Docket Number: S-19-0226
• Decision Date: 12 February 2021

480 P.3d 532

Marty May SMITH, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-19-0226

Supreme Court of Wyoming.

February 12, 2021

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General. Argument by Mr. Eames.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

480 P.3d 535

[¶1] A jury convicted Marty Smith as an accessory to both involuntary manslaughter and aggravated assault and battery, and she appeals the district court's refusal to instruct the jury on her theory of defense. We conclude that the evidence was sufficient to warrant the requested instruction on defense of another and reverse.

ISSUE

¶2] Ms. Smith presents a single issue on appeal, which we restate as:

Did the district court err when it refused to instruct the jury on defense of another?

FACTS

I. Events that Led to Charges

[¶3] The events that led to the charges against Ms. Smith are presented in the light most favorable to her, in accordance with our standard of review, which requires that we view the evidence in the light most favorable to a defendant who is refused a theory of defense instruction. Black v. State , 2020 WY 65, ¶ 22, 464 P.3d 574, 579 (Wyo. 2020) (quoting Garza v. State , 2020 WY 32, ¶ 18, 458 P.3d 1239, 1243 (Wyo. 2020) ).

[¶4] On the date these events transpired, Ms. Smith worked as a bartender at the Turf Bar in Sundance, Wyoming. On most evenings that she worked, her former boyfriend Douglas Haar would spend time in the bar and would help her close. The two had been in a romantic relationship for about three years until she broke up with him in May of 2018, but they remained close friends.

[¶5] On the evening of July 31, 2018, Ms. Smith arrived at around 5:30 p.m. for her 6:00 shift. Mr. Haar was already in the bar with a group of friends, drinking and celebrating a birthday. She served him five to six beers before he left to go to dinner with his friends, and when he returned at around 10:00 or 10:30, he told her that he drank more beer and smoked marijuana while he was gone. Before closing the bar at around 11:40, she served him five to six additional beers, followed by an eighteen-ounce double vodka and Pepsi while they cleaned the bar. She also had a vodka and Pepsi while they cleaned.

[¶6] After closing the Turf, Ms. Smith and Mr. Haar drove around the corner to the Dime Horseshoe, another bar referred to in the record simply as "the Dime." There they met Ms. Smith's current boyfriend, Jessie Johnson, and they continued to drink. Before they left the Dime at around 1:50 a.m., Ms. Smith and Mr. Haar each had about ten to twelve drinks. At some point, tension grew between Mr. Haar and Mr. Johnson, which Ms. Smith described as follows:

Q. Okay. So did anything – Did Jessie and Doug get along at the Dime?

A. Yeah, they got along. They seemed a little, like, irritated. I went outside and talked with Doug. Seemed to resolve it, though.

Q. What was the situation there?

A. Doug seemed like he was jealous. He was jealous of Jessie, but I told him there was no reason to be because, you know, it was – I told Doug that I loved him but wasn't in love with him; I couldn't be with him.

Q. In your opinion, do you believe that Doug was paranoid of your and Jessie's growing relationship?

A. I think so. I think he was jealous, maybe.

Q. And is that because Jessie began staying the nights at your house?

[480 P.3d 536

A. Yes.

Q. Did Doug ever drive by your house and see Jessie's truck there?

A. Yes.

¶7] When Ms. Smith was ready to leave the Dime, she told Mr. Johnson it was time to go, and the two left together. She got into the driver's seat of her vehicle, and Mr. Johnson got into the front passenger seat. Mr. Haar jumped uninvited into the back seat. They then drove to the Sundance Travel Center to buy snacks.

[¶8] The travel center had video cameras that showed the fuel pumps, the interior of the store near the front entrance, and the cash register. The cameras recorded video, but not audio. From the video, we know that the threesome pulled into the center's parking lot at 2:12 a.m., and Ms. Smith and Mr. Johnson entered the store about a minute later, touching hands. They then walked toward the back of the store arm in arm.

[¶9] Mr. Haar entered about thirty seconds later, after gesturing angrily from just outside the front entrance. He went into the restroom, and at 2:15 he emerged and went out the front entrance while gesturing toward the back of the store.

[¶10] Mr. Haar stayed outside for about thirty seconds, during which he looked into the store. He then reentered, pointed toward the back of the store, and began pacing angrily back and forth from the front toward the back, all the while appearing to yell something.

[¶11] At about 2:16 a.m., Ms. Smith began pushing Mr. Haar toward the front entrance. He left briefly and gestured angrily from outside. Ms. Smith then opened the door and spoke to him, after which he gestured some more, opened the door, and then appeared to yell something toward her and Mr. Johnson. He then drove away in Ms. Smith's vehicle with the keys she had given him, but he returned less than a minute later.¹

[¶12] Shortly after 2:18 a.m., Mr. Haar reentered the store once again and headed toward Ms. Smith. They argued for about two minutes while he angrily pointed toward Mr. Johnson. He then went to the register to pay for a couple of items, but within seconds turned back to the store and yelled again, after which he walked toward the back of the store yelling and gesturing. At about 2:21, Ms. Smith walked with him back to the register and twice pushed him in the chest with her hand in an apparent effort to keep him at the register. She then stumbled onto him.

[¶13] At 2:22 a.m., Mr. Haar again left the register, walked aggressively toward Mr. Johnson, and chest-bumped him. Ms. Smith grabbed him and pulled him away from Mr. Johnson, and he then dragged her by her shirt collar to the register. This back and forth happened a couple more times, with Ms. Smith staying between the two men and pushing Mr. Haar back toward the register. At 2:23, Mr. Haar left the store and then tried to reenter, but Ms. Smith shoved him out the door and went outside herself. For the next few minutes, the two stayed outside arguing, and he continued to point and gesture toward Mr. Johnson inside the store. Ms. Smith shoved him, slapped him, and hit him while they were outside. At about 2:25, she fell down, and he helped her up. He then walked toward her repeatedly, and she repeatedly pushed him away.

[¶14] At 2:26 a.m., Ms. Smith reentered the store while trying to keep Mr. Haar out by shoving and kicking at him. About thirty seconds later, he came in and immediately moved aggressively toward Mr. Johnson. Ms. Smith stepped between the two men and slapped and punched Mr. Haar, and he threw her to the floor. She got back up and continued to come between them, and Mr. Haar again threw her to the floor. At 2:27, Mr. Haar chest-bumped Mr. Johnson again, and when Ms. Smith again tried to intervene, he threw her more violently to the floor. At that point, Mr. Johnson set down his cell phone and drink and pushed Mr. Haar away from Ms. Smith.

[¶15] While Ms. Smith remained on the floor, Mr. Haar came at Mr. Johnson and

[480 P.3d 537

threw a punch, and Mr. Johnson returned the punch. The two men then fell to the floor, where Mr. Johnson held Mr. Haar down. At some point after they began fighting, Mr. Haar told Mr. Johnson, "I'm going to kill you, you mother fucker." At 2:29 a.m., Mr. Haar broke free and ended up on top of Ms. Smith, with Mr. Johnson on top of him. About thirty seconds later, Mr. Johnson got Mr. Haar into a chokehold, and when Mr. Haar tried to use his free arm to hit Mr. Johnson, Ms. Smith held onto it. They stayed in that position until 2:36, when Mr. Johnson released Mr. Haar from the chokehold, stood, and helped Ms. Smith up. Mr. Haar remained on the floor, and Ms. Smith and Mr. Johnson left the store, believing that Mr. Haar had passed out. Based on the video, the State's forensic pathologist later estimated that Mr. Haar lost consciousness around 2:30.

¶16] During the fight, the store clerk called law enforcement for assistance. Officer Chris Tomford of the Sundance Police Department arrived just after Ms. Smith and Mr. Johnson left, and he found that Mr. Haar was not breathing and had no pulse. He performed CPR until an ambulance arrived and EMTs took over. The EMTs were unable to revive Mr. Haar and declared his death.

[¶17] Ms. Smith and Mr. Johnson returned to the travel center at around 3:30 or 4:00 that morning to retrieve her purse, which she had left behind after the fight. Office Tomford and another officer approached their vehicle, informed them of Mr. Haar's death, and arrested both of them.

II. Charges and Trial

[¶18] On August 2, 2018, the State charged Ms. Smith with four felonies: Count I, accessory before the fact of murder in the second degree; Count II, accessory before the fact of voluntary manslaughter; Count III, accessory before...