Vigil v. State

• Decision Date: 21 September 1993
• Docket Number: No. 92-247,92-247
• Parties: Keith VIGIL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 659

859 P.2d 659

Keith VIGIL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 92-247.

Supreme Court of Wyoming.

Sept. 21, 1993.

Leonard D. Munker, State Public Defender, Deborah Cornia, Asst. Public Defender, Gerald M. Gallivan, Director, Defender Aid Program, and John Fenn, Student Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, and D. Michael Pauling, Sr. Asst. Atty. Gen., for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

TAYLOR, Justice.

Keith Vigil (Vigil) appeals his conviction for involuntary manslaughter following the death of a nineteen-month-old infant in his care. Although Vigil raises a number of issues, our primary focus involves one obsolete jury instruction as derived from the Wyoming Pattern Jury Instructions-Criminal as published in 1978. We reverse and remand because the jury instruction misstated the essential elements of the crime of involuntary manslaughter as presently enacted by the Wyoming State Legislature.

Vigil raises these issues:

I. Whether the district court committed plain error by submitting jury instructions failing to define the essential elements of the crime of manslaughter?

II. Whether the jury instructions presented caused the jury's decision to be ambiguous and possibly precipitated the finding of guilty of criminal negligence instead of manslaughter?

III. Whether the state committed prosecutorial misconduct by bringing the highly prejudicial charge of sexual assault without sufficient cause?

IV. Whether the prosecution's use of a peremptory challenge to exclude a hispanic from the jury was improper and denied appellant his right to a fair and impartial jury in violation of the Sixth Amendment of the United States Constitution?

V. Whether the district court erred by denying a motion to suppress coerced statements made by appellant * * * during interrogations by the police on December 3, 1991, and December 18, 1991?

I. FACTS

Vigil shared a home in Cheyenne, Wyoming with the mother of nineteen-month-old Chaundel Kohute (Chaundel). When Chaundel's mother went to work on November 3, 1991, she left Chaundel in Vigil's care. After meeting the mother briefly around 10:30 a.m., Vigil and Chaundel spent the rest of the morning at the home of Chaundel's maternal grandparents. After watching television for a time, Vigil took Chaundel back to their home around noon.

Vigil and Chaundel were alone for approximately one-half hour before Vigil walked to a neighbor's home with an unconscious Chaundel in his arms. While Vigil telephoned emergency personnel, the neighbor attempted to resuscitate Chaundel. Unsuccessful efforts to save Chaundel's life continued at a Cheyenne hospital and at Children's Hospital in Denver, Colorado.

During the investigation, Vigil initially claimed that he heard Chaundel fall and returned from another room to find her choking. In later descriptions, Vigil maintained that Chaundel had slipped out of his arms as he removed her coat and had fallen backwards hitting a coffee table. Vigil was charged with murder in the second degree, Wyo.Stat. § 6-2-104 (1988), and sexual assault in the first degree, Wyo.Stat. § 6-2-302(a)(i) (1988). At a jury trial, Vigil was found not guilty of sexual assault and guilty of the lesser included offense of manslaughter.

II. DISCUSSION

A. Jury Instructions

Vigil asserts that the jury instruction, concerning the lesser included offense of manslaughter, was fundamentally defective and, therefore, plain error. Instruction No. 4 provided, in part:

The Jury may find the Defendant guilty of any lesser crime which is included in the principal crime charged whenever such a finding is consistent with the facts found by the Jury from the evidence in the case, and with the law as given in these instructions. If the Jury finds the Defendant not guilty of the crime of second degree murder, then the Jury must proceed to determine the guilt or innocence of the defendant as to any lesser crime included in second degree murder. If you find the Defendant not guilty of second degree murder, you will then determine whether he is or is not guilty of the included crime of manslaughter.

Section 6-4-107, Wyoming Statutes, 1977, ¹ defines manslaughter and reads, in part, as follows:

"Whoever unlawfully kills any human being without malice, expressed or implied, either voluntary upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter ..."

The essential elements of the charge of manslaughter which must be proven are:

1. That the Defendant committed acts on or about November 3, 1991, which killed Chaundel Kohute.

2. That the killing was either done voluntarily, upon a sudden heat of passion; or involuntarily by culpable neglect, or by criminal carelessness.

3. That the killing occurred in Laramie County, Wyoming.

(Emphasis added.) Vigil argues that the jury instruction does not accurately reflect the applicable elements of the crime of manslaughter. The manslaughter statute, which applies to Vigil and exists today, provides:

(a) A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:

(i) Voluntarily, upon a sudden heat of passion; or

(ii) Involuntarily, but recklessly except under circumstances constituting a violation of W.S. 6-2-106(b).

Wyo.Stat. § 6-2-105 (1988) (emphasis added). The jury instruction was based on the previous version of the manslaughter statute which used the terms culpable neglect and criminal carelessness instead of recklessly.

Both parties agree that because Vigil failed to properly object to Instruction No. 4, we may only review the jury instruction for plain error. See Gore v. State, 627 P.2d 1384, 1388-89 (Wyo.1981). To establish plain error, the following must be demonstrated:

"It must be clear from the record, without resort to speculation or equivocal reference, exactly what occurred at trial. The proponent of the doctrine [plain error] must demonstrate the existence of a clear and unequivocal rule of law; and the particular facts of the case must clearly and obviously, not just arguably, transgress that rule. Finally, once these criteria have been met, it must be shown that some substantial right of the accused has been adversely affected. These criteria apply even when constitutional error is alleged; and unless each one of them is satisfied, any claim for review under the plain-error doctrine must fail."

Russell v. State, 851 P.2d 1274, 1278 (Wyo.1993) (quoting Gresham v. State, 708 P.2d 49, 55 (Wyo.1985)).

There is no question as to what occurred at trial. The trial judge instructed the jury on the elements of the crime of involuntary manslaughter, but substituted the terms culpable neglect and criminal carelessness for recklessness. This amounts to an obvious transgression of the requirement that the trial judge must instruct the jury on the necessary elements of the crime charged. Sanchez v. State, 751 P.2d 1300, 1307 (Wyo.1988); Horn v. State, 554 P.2d 1141, 1143 (Wyo.1976).

In addition, this instructional error adversely affected one of Vigil's substantial rights. Vigil, as the accused in a criminal prosecution, can only be convicted upon proof beyond a reasonable doubt of each element of the crime charged. Stuebgen v. State, 548 P.2d 870, 879 (Wyo.1976); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Clearly, the jury did not find that the State had proven that Vigil acted recklessly beyond a reasonable doubt because the jury was not instructed that recklessly was an element of involuntary manslaughter. Hence, Vigil's right, to only be convicted based on a finding of proof beyond a reasonable doubt of each element of the crime charged, was denied.

Therefore, because the manslaughter instruction neglected to include an essential element of the crime for which Vigil was convicted, we hold that the trial court committed plain error. This court is certainly not alone in declaring the existence of plain error under these circumstances. The United States Court of Appeals for the Seventh Circuit indicated that "[s]tate and federal courts alike have long recognized that the failure to give any instruction on an essential element of a criminal offense is fundamental error, requiring reversal of the defendant's conviction." Cole v. Young, 817 F.2d 412, 423 (7th Cir.1987). See also 2 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 487, at 723 (1982).

Instruction No. 4 was derived from the Wyoming Pattern Jury Instructions-Criminal §§ 7.501, 7.502 and 7.503 (1978). The current Criminal Pattern Jury Instructions were published by the Wyoming State Bar in 1978. To put the date of publication in some perspective, Justice Cardine, then practicing in Casper, Wyoming, was a prominent member of the committee responsible for formulating the pattern instructions. During the ensuing years, criminal law and procedure in Wyoming have changed in many areas, both as a result of legislative action and as a result of decisions of this court and the Supreme Court of the United States.

The Wyoming State Bar has, in place, a standing committee whose purpose "is to periodically review the criminal pattern jury instructions to ensure that they accurately reflect Wyoming law." Wyoming State Bar Directory 130 (1993). It appears that the Criminal Pattern Jury Instructions have not been reviewed or updated since their publication in 1978. To avoid the unfortunate circumstance which occurred here, the Wyoming State Bar committee is urged to undertake the revision of the Criminal Pattern Jury Instructions and, upon completion, meet regularly thereafter to ensure that updated legal authority is incorporated in its work. Until such revisions have been accomplished, the trial bench and bar should view the...