State v. Keffer

Decision Date29 September 1993
Docket NumberNo. 91-9,91-9
Citation860 P.2d 1118
PartiesThe STATE of Wyoming, Plaintiff, v. Lola Mae KEFFER, Defendant.
CourtWyoming Supreme Court

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Dennis C. Cook, Senior Asst. Atty. Gen., for plaintiff.

Wyoming Public Defender Program: Wyatt R. Skaggs, State Public Defender, for defendant.

Before MACY, C.J., and THOMAS, CARDINE, and GOLDEN, JJ., and URBIGKIT, J., Retired.

THOMAS, Justice.

In this case, brought to this court by a Bill of Exceptions, the State of Wyoming (State) seeks a determination that, in a prosecution for second degree murder, the State is entitled to have the jury instructed on the crime of manslaughter as a lesser included offense. The district court, upon objection by Lola Mae Keffer (Keffer), concluded the instructions requested by the State on the lesser included offense of manslaughter should not be given. The district court ruled that, by submitting a written "waiver of included offense instructions," Keffer had the right to prevent the giving of such instructions pursuant to Eckert v. State, 680 P.2d 478 (Wyo.1984). The district court also found the evidence in the case would not support the giving of the instructions on a lesser included offense. The major thrust of the State's concern is whether, by submitting such a waiver, a defendant in a criminal case can veto the giving of the lesser included offense instructions. We hold that the district court erred in refusing to give the lesser included offense instructions on the crime of manslaughter in this case.

The issues presented in this bill of exceptions proceeding are:

Whether the State of Wyoming is entitled to instructions on lesser included offenses where the Defendant waives said instructions in writing and objects to the giving of manslaughter instructions when the information charges second degree murder; and

Whether the District Court Judge usurped the jury's function to determine the facts by ruling that the evidence of self defense could not support a finding that no malice existed but the killing was not justifiable.

Keffer, as the defendant in this proceeding, states the issue in this way:

Whether in a second degree murder prosecution, an instruction on voluntary manslaughter must automatically be given where the evidence could not support a conviction for the lesser crime.

On August 3, 1990, Keffer shot and killed her nephew, Duane Jackson. Jackson went to Keffer's home in Laramie around 10:00 P.M. asking for money. On previous occasions, Keffer had complied with Jackson's demands, giving him money from a small inheritance and her tax refund. She also had paid Jackson to do some auto repair work. On this occasion, however, Keffer decided that she would refuse Jackson's request and would use an audio tape recording of his behavior to seek a restraining order. Soon after he arrived, Jackson discovered the tape recorder, stopped the tape, and shouted at Keffer, "I'm on to your little game." Keffer grabbed the recorder and ran into her bedroom to get it out of Jackson's reach. When Jackson followed her into the bedroom, Keffer directed her handicapped husband to call the police. Jackson then withdrew from the bedroom and blocked the husband from reaching the telephone.

Keffer removed a gun from her husband's dresser. She walked into the living room and cocked the single action revolver while telling Jackson to leave. At the trial, Keffer testified she shot Jackson with a .44 magnum hollow point bullet in self defense because Jackson menaced and threatened her. After the bullet struck Jackson, he exclaimed: "Dear God, I never would have hurt you." The next day, Jackson died from hypovolemic shock, the extreme loss of blood caused when the bullet lacerated a major abdominal blood vessel.

Keffer was charged with second degree murder for purposely and maliciously, but without premeditation, killing a human being in violation of WYO.STAT. § 6-2-104 (1988). 1 During the trial, the State introduced witnesses and evidence identifying Jackson as the victim and demonstrating he died as the result of a single gunshot wound from a gun fired at close range by Keffer. Jackson's widow testified he was preparing to take Keffer to court for failing to pay him for the auto repair work. A co-worker of Keffer's testified that, during lunch about nine hours prior to the shooting, Keffer appeared agitated and upset because she knew Jackson was coming to her home that night. The co-worker testified that Keffer said she was prepared for Jackson's visit and had a gun with "bullets that have this beebee thing on the end of it that separates when it gets in the body."

The jury was instructed on the elements of second degree murder and upon the law relating to self defense. The State requested instructions on the lesser included offense of manslaughter, but they were refused by the court after Keffer objected and submitted a signed waiver of a lesser included offense instruction. 2 After deliberating less than three hours, the jury returned a verdict of not guilty of the charge of second degree murder. This Bill of Exceptions then was brought to resolve the questions of law presented by the dispute over the right to the instruction on the lesser included offense of manslaughter.

The State argued that, under State v. Selig, 635 P.2d 786 (Wyo.1981), both the State and the defendant had an equal opportunity to request lesser included offense instructions. Keffer argued that her waiver, under the rule of Eckert, precluded the State from requesting the lesser included offense instructions. The response of the State was that, in Jahnke v. State, 692 P.2d 911 (Wyo.1984), decided subsequent to Eckert, the validity of the Selig analysis with respect to the component of mutuality was reaffirmed.

The district court, while acknowledging the right of both sides to request instructions on lesser included offenses, ruled that an objection by the defendant accompanied by an appropriate Eckert waiver entitled the defendant to veto the lesser included offense instructions. Ruling in favor of Keffer, the district court ordered that the lesser included offense instructions on voluntary manslaughter would not be given. The district judge distinguished the relevant cases in this way:

Eckert carves out, it seems to me, a post-Selig exception to any reading of Selig, or an explanation of that factor called mutuality. And the way I read Eckert is that if a defendant if properly informed and fully advised, wishes to waive the lesser includeds, then defendant is entitled to do so. The [S]tate did not choose to charge manslaughter so in that sense the case has been defended on the basis of the second degree murder charge which the [S]tate did charge, so the court concludes that the waiver is effective and is otherwise in compliance with State v. Eckert and should be given effect.

As an alternate premise, the court also ruled that, based upon the evidence at trial, "there has not been any significant evidence directed to the form of manslaughter that is requested, namely a killing in the heat of passion."

We hold that the trial court erred in refusing to give the lesser included offense instructions on the ground that Eckert afforded the defendant the right to waive them and the State would be bound by such a waiver. Properly applied, Eckert does not extend to affording a defendant in a criminal case the right of veto of lesser included offense instructions. Affording Eckert that interpretation effectively abrogates the rule of mutuality adopted in Selig. Whether the evidence would justify the giving of the instructions in this instance is a difficult question, but we also hold that, under the evidence of record, the instructions on the lesser included offense of voluntary manslaughter should have been given.

We first consider whether the Bill of Exceptions is properly before this court. After the verdict was returned, followed by a judgment of acquittal, the prosecuting attorney submitted a Bill of Exceptions to the district court pursuant to WYO.STAT. § 7-12-102 (1987). This is the only method available for the State to seek a determination of governing law in any similar, pending or future case. State v. Heberling, 553 P.2d 1043 (Wyo.1976); WYO.STAT. § 7-12-104 (1987). The decision of this court upon review pursuant to a bill of exceptions does not affect the verdict of the jury in Keffer's case in any way. WYO.STAT. § 7-12-104(b) (1987).

There is a statutory requirement that the bill of exceptions must be presented to the trial court to certify the correctness of its contents before it is filed with this court. WYO.STAT. § 7-12-102. In this instance, the certification is imperfect because what the district judge certified was the "Application for Permission to File Bill of Exceptions," but the "Bill of Exceptions" itself was not certified. The language of the document that was certified is parallel to the language of the "Bill of Exceptions" so that the flaw in the certification is, at most, an irregularity that does not preclude jurisdiction in this court. Selig. In addition, the document certified does incorporate the "Bill of Exceptions" by reference and attachment, so, conceptually, the certification would reach to both documents. There is no question that the district judge to whom the "Bill of Exceptions" was presented intended to certify the "Bill of Exceptions" because the same attorney who had represented Keffer at trial was appointed to argue the case against the State. WYO.STAT. § 7-12-103 (1987).

The statutory jurisdiction conferred upon this court with respect to a bill of exceptions requires substantial, rather than strict, compliance. State ex rel. Gibson v. Cornwell, 14 Wyo. 526, 85 P. 977 (1906). We are satisfied the language of the Application in this instance sufficiently parallels the language of the Bill of Exceptions to make the flaw in certification at most an...

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