State v. Wolfe

• Citation: 107 Idaho 676,691 P.2d 1291
• Decision Date: 30 November 1984
• Docket Number: No. 14755,14755
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William WOLFE, Defendant-Appellant.
• Court: Court of Appeals of Idaho

Page 1291

691 P.2d 1291

107 Idaho 676

STATE of Idaho, Plaintiff-Respondent, v. William WOLFE, Defendant-Appellant.

No. 14755.

Court of Appeals of Idaho.

Nov. 30, 1984.

Gregory FitzMaurice, Grangeville, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

SWANSTROM, Justice.

William Wolfe was found guilty by a jury of first degree murder, I.C. § 18-4001, § 18-4003, and was given a fixed life sentence of imprisonment under I.C. § 19-2513A. Wolfe contends there was insufficient evidence to establish that the killing was premeditated and to show the requisite intent of malice aforethought, which are necessary elements of the crime of first degree murder. Wolfe further contends that the sentence imposed is excessive. We reject both of these contentions and affirm.

I

Wolfe first asserts that the evidence was insufficient to support a conviction of first degree murder. It is well established that a jury verdict supported by substantial, competent evidence will not be disturbed on appeal. State v. Gerdau, 96 Idaho 516, 531 P.2d 1161 (1975). The standard of review on appeal requires a review of the record to determine if sufficient evidence exists and we are precluded from substituting our judgment for that of the jury as to the credibility of witnesses, the weight of the testimony and the reasonable inferences to be drawn from the evidence. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App.1983). Furthermore, on appeal, where a defendant stands convicted, we view the evidence most favorably to the prosecution. State v. Fenley, 103 Idaho 199, 646 P.2d 441 (Ct.App.1982). Viewed in that light, the evidence shows the following events.

In the evening hours of February 20, 1982, Wolfe arrived at the Silver Dollar Bar, in Stites, Idaho County, Idaho. In the bar were numerous friends and acquaintances of Wolfe, including the victim, Scott Gold. Wolfe had been drinking that evening and he continued to do so. He also played pool, moved about, recognizing people he knew and carried on conversations with various persons. However, during the evening Wolfe got into an argument with his friend, Scott Gold, and became increasingly belligerent. Several persons noticed that Wolfe was carrying a pistol tucked into his belt. He appeared intoxicated to some degree, but according to witnesses, he did not slur his words nor stumble about. He appeared steady. Gold tried to calm Wolfe who was heard to say, "Don't make me do what you're going to make me do." Apparently at Gold's suggestion, the two went outside. A witness who followed the two outside said he heard Gold ask Wolfe, "What are you going to do? Are you going to hit me, man? Are you going to shoot me? I am your friend, what is the matter with you?" Wolfe then reached behind his back. The witness heard a click and saw Wolfe take the gun and place it against Gold's chest and pull the trigger.

Wolfe lists several factors in support of his argument that he was incapable of forming the requisite malice or intent to commit murder. These factors are his previous history of alcohol abuse, his purported state of intoxication at the time of the crime, the provocation of an argument he had with the victim before the shooting, and finally the short period of time between the argument and the crime within which he could have formed the requisite intent or malice. I.C. § 18-4002 states that:

Such malice may be expressed or implied. It is expressed when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.

Our Supreme Court has held on several occasions that where a defendant uses a deadly weapon against the person of another in a deadly and dangerous manner, the element of malice may be presumed. State v. Warden, 100 Idaho 21, 592 P.2d 836 (1979); State v. Gomez, 94 Idaho 323, 487 P.2d 686 (1971); see also, State v. Rodriquez, 106 Idaho 30, 674 P.2d 1029 (Ct.App.1983). Therefore, the jury could properly have found malice from the evidence showing Wolfe's unlawful use of a deadly weapon in a dangerous way. It is the province of the jury to determine whether the evidence in the record only supports a conviction of voluntary manslaughter or whether there is sufficient proof of malice to justify a conviction for first degree murder. State v. Gomez, supra.

For first degree murder to be proven, it must be shown that the killing was "wilful, deliberate and premeditated." I.C. § 18-4003(a). However, it has been established that direct evidence of a deliberate and premeditated purpose to kill is not required, such a purpose may be inferred from the facts and circumstances of the killing. State v. Foley, 95 Idaho 222, 506 P.2d 119 (1973). Further, premeditation does not require an appreciable space of time between the intention to kill and the killing--they may be instantaneous as two successive thoughts of the mind. Carey v. State, 91 Idaho 706, 429 P.2d 836 (1967).

Wolfe contends that the murder could not have been premeditated, largely due to his intoxicated state. Here, the jurors were instructed that they could "take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act." I.C. § 18-116. They were told to determine "whether the accused was so intoxicated as to create a reasonable doubt of his deliberate premeditated intent to kill." We can only presume that the jurors considered the evidence with these instructions in mind.

The jurors heard testimony that Wolfe was capable of playing pool that night, and of recognizing people and speaking to them in a coherent manner. One witness stated that Wolfe did not slur his words, stumble about or weave back and forth while talking. The state also points to Wolfe's telling the victim, "Don't make me do what you're going to make me do." Further, according to the eye witness, Wolfe calmly and deliberately raised the gun to the victim's body and fired. In addition, immediately following the crime, he spoke to several people indicating an awareness of the nature and wrongfulness of his act. Finally, Wolfe showed significant presence of mind in his attempts to evade capture by the police shortly after the crime.

From such evidence it reasonably could be inferred that Wolfe did not act upon provocation or in the heat of passion. The jury was entitled to reject the defense counsel's contention that Wolfe was too intoxicated to form the intent to kill or to premeditate the killing. Wolfe has cited State v. Sprouse, 63 Idaho 166, 118 P.2d 378 (1941), as support for his argument. Upon somewhat similar facts in that case, the evidence was held on appeal to be insufficient for murder and the conviction was reduced to voluntary manslaughter. The intoxication of the defendant was considered in determining the existence of malice aforethought. The court gave no explanation other than it was acting on its power "to mete out fundamental justice." Therefore, Sprouse provides limited precedential value and we are not persuaded by it. We conclude that the evidence in this case was sufficient to support a finding of malice and premeditation, and the matter was therefore properly within the exclusive province of the jury. State v. Olin, 103 Idaho 391, 648 P.2d 203 (1982).

II

Wolfe next contends that the trial judge abused his sentencing discretion by imposing an unduly harsh sentence. The judge perceived that he had only three choices: A sentence to death, a fixed sentence of life, or an indeterminate life sentence. I.C. §§ 18-4004, 19-2513 and 19-2513A. He chose the second alternative. At oral argument on appeal, Wolfe's counsel suggested--in light of this court's majority decision in State v. Wilson, 105 Idaho 669, 672 P.2d 237 (Ct.App.1983), decided after Wolfe was sentenced--that the judge was unaware he also had the option to impose a fixed sentence for ten or more years. However, after reviewing Wilson, our Supreme Court has now held that if a sentence of imprisonment is imposed for murder in the first degree it must be for life, although it may be either an indeterminate life sentence or a fixed life sentence....