Stone v. State

• Decision Date: 25 November 1987
• Docket Number: No. 86-292,86-292
• Citation: 745 P.2d 1344
• Parties: Michael E. STONE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1344

745 P.2d 1344

Michael E. STONE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-292.

Supreme Court of Wyoming.

Nov. 25, 1987.

Wyoming Public Defender Program: Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant (defendant).

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., Cheyenne, for appellee (plaintiff).

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

On May 19, 1985, appellant Michael E. Stone shot and killed his mother. He was convicted of first degree murder and sentenced to life imprisonment.

On appeal appellant raises five issues:

I

"Was it error to refuse to suppress statements made by Appellant?

II

"Was it error to allow a tape recorded statement of the Appellant to be replayed by the jury during deliberation?

III

"Was it error to refuse to allow the defense's expert witness to remain in the courtroom during the testimony of the State's expert witness?

IV

"Was there sufficient evidence of malice to support the verdict of the first degree murder?

V

"Was it error to refuse to give two proposed jury instructions?"

We will affirm.

Appellant does not deny that he killed his mother, but rather contends that he is not guilty of a crime because of mental illness or deficiency.

Depravity abounded in the Stone home during appellant's childhood. He was sexually abused by both parents who were alcoholics. Appellant joined the Navy at age eighteen. During his military career, he developed a drinking problem that led to some disciplinary measures against him. After spending time in a Navy rehabilitation center, appellant became involved in helping other alcoholics. Ironically, he eventually became director of a program for alcoholics in the Navy. Appellant retired in 1984, returning to Lovell to live with his widowed mother, Marie Stone. Marie Stone still had a drinking problem, but up until the week of her death had been talked out of abusing alcohol by appellant.

At the time of the homicide, appellant was forty-one years old and had been living with his mother for a year and three months. Marie Stone began drinking again in mid-May. Appellant's drinking also escalated at that time.

At about 11:30 p.m., May 18, 1985, appellant went to the home of William Cameron about a block from his mother's house. Both appellant and Cameron had been drinking heavily during the evening of the 18th and the early hours of the 19th, and appellant was intoxicated when he arrived at Cameron's house. Cameron and appellant talked about Marie Stone with appellant saying of his mother, "She's drinking too much lately. She's becoming a pain in the butt" and a burden. The two men then talked about ways to kill people (no one in particular); and they talked about "piano wire around the neck, suffocation and self-induced drowning." Appellant said that these methods of killing were "too messy, too ugly," and then said, "Well, why can't you just shoot them? How about a bullet in the heart or something?" Appellant left the Cameron home about 1:30 the morning of May 19th saying he "had business to go take care of." He also said, "Well, I'm going to go waste her." Cameron replied, "God, Mike, don't you hurt that little old lady. Don't you do it."

Cameron watched appellant drive into his driveway and turn off his vehicle lights. Shortly after appellant arrived home, Cameron called him on the telephone. Cameron inquired, "Is everything okay?" Appellant said, "It is now."

About 2:00 a.m. appellant came back to the Cameron house, entered through the back door and fell against the wall crying. Cameron said, "What's the matter, Mike?" Appellant said, "I wasted her * * * I just killed my frigging mother." Appellant repeated this latter statement a few moments later and produced a gun. Conversation about the gun and the shooting lasted about thirty minutes, interrupted from time to time while Cameron and appellant took another drink. Cameron became greatly concerned when appellant handed him a pen knife and said, "Here, just in case she ain't dead, would you go check and maybe cut her throat or something and take her out of her misery."

Cameron hastened to the Stone house. His description of the living room scene was, "I seen Marie sprawled out on the couch, one arm hanging down here off to the side, and blood all over." Cameron immediately called the police.

At trial, appellant described the killing:

" * * * I remember getting the gun and I remember shooting her. I remember missing once, and I remember stepping into the kitchen, leaning back against the kitchen table with the gun in my right hand, and I put both my hands out like this on the table, and I knocked over a bottle--a half-pint of something. And I remember opening it and drinking it all. I remember stepping back into the living room, and I asked, 'Are you in any pain?' And I remember her saying, 'Don't worry about it, Mike. There is a God. They're coming for me.' And then I remember shooting her two or three more times. And then I left."

After the shooting, appellant was tested for alcohol. His blood alcohol level was 0.15 and the urine test was 0.20. There was also evidence that appellant had ingested some Librium at some time before the shooting, and that Librium, when taken with alcohol, has the effect of increasing the effect of intoxication. According to the Chief of Police, David Wilcock, the blood test for drugs was negative.

After a preliminary hearing appellant pled not guilty and not guilty by reason of mental deficiency. Before trial, appellant was given a forensic evaluation at the Wyoming State Hospital. He was found to be "competent to proceed to trial." He was also found to be "sane under Wyoming Statute 7-11-303." A designated examiner of appellant's choosing also found:

"The defendant, Michael Stone, is not mentally ill or deficient under the Wyoming's statutes. He was not mentally ill or deficient at the time of the alleged criminal conduct. He is presently able to cooperate with defense as to any available defense and maybe interposed on his behalf. The defendant does not need to be held in a designated facility."

The district court allowed appellant to obtain a third forensic evaluation. In a report, this examining doctor stated:

"In my opinion, at the time of the alleged crime, the defendant, as a result of mental illness and deficiency, lacked substantial capacity to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of law."

At trial, the doctors making the pretrial mental evaluation testified. A special verdict was submitted to the jury and the jury did not find the appellant "not guilty by reason of mental illness or deficiency," but found him guilty of murder in the first degree.

I

In his first assignment of error, appellant complains that the district court improperly refused to suppress certain statements made by him during post-arrest questioning. Before trial, appellant filed a motion to suppress evidence. The motion dealt with statements made by him to various law enforcement officers and alleged violations of his rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution. The motion also was grounded on the absence of a truly informed and voluntary waiver of constitutional rights. The motion was granted in part and denied in part. It was granted as to statements made during booking procedures at the Big Horn County Jail, but was denied as to taped statements made to Chief Wilcock and investigating Officer James Moan. It, too, was denied subject to further clarification as to statements made by appellant to Officer Craig Moore while being transported to Lander, Wyoming.

Appellant argues that he did not voluntarily waive his right to silence, or his right to consult with an attorney before questioning, because he was too intoxicated to do so. The two statements which appellant argues were not voluntary were taped statements given to Chief Wilcock at 7:04 a.m. on the day of the shooting and the statement given to Officer Moan at 4:20 p.m. that same day. It is not disputed that appellant was read his constitutional rights before making these statements, but rather whether or not he voluntarily and intelligently waived those rights. The state does not deny that appellant ingested alcohol before, at the time of and after the shooting.

The rather lengthy suppression hearing, which resulted in admission of the challenged statements, involved six state witnesses and two witnesses for appellant. Those witnesses were aware that at the time of appellant's arrest, he experienced a certain degree of intoxication. As described above, appellant's blood alcohol level at about 7:50 the morning of the shooting was at or between 0.15 and 0.20. Appellant was not questioned before 7:04 a.m. on the 19th of May because Chief Wilcock believed him to be too intoxicated. At the time of appellant's questioning, a slight odor of alcohol was detected. According to the Chief appellant answered questions intelligently and his speech was not slurred. He did not appear to be intoxicated. Appellant did not stagger, stumble or fall and walked without assistance. The Chief said he would not have questioned appellant if he had been significantly intoxicated.

The tape recording of appellant's statements was played to the court during the hearing, and the Chief explained that the alleged slurred speech was the result of a cigarette in appellant's mouth, a dry mouth, and being very emotional.

Officer Moan interviewed appellant between 4:00 p.m. and 4:30 p.m. the afternoon of the shooting. According to Moan, appellant was coherent, seemed very normal and did not appear to be intoxicated and his speech was not slurred. Other testimony produced at the suppression hearing provided only minimal support for appellant's contention that he did not voluntarily waive...