Warren v. State, 90-235

CourtUnited States State Supreme Court of Wyoming
Citation835 P.2d 304
Docket NumberNo. 90-235,90-235
PartiesEarl WARREN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date05 June 1992

Page 304

835 P.2d 304
Earl WARREN, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
No. 90-235.
Supreme Court of Wyoming.
June 5, 1992.

Page 305

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, David Gosar, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Jennifer Gimbel, Senior Asst. Atty. Gen., Larry M. Donovan, Senior Asst. Atty. Gen., for appellee.


THOMAS, Justice.

The major issue that must be resolved in this case is whether the inclusion in the instruction on the elements of aggravated assault and battery of the phrase, "a deadly weapon, to wit: shoes ...," provided an opportunity for the jury to invoke an impermissible presumption. Other issues are urged with respect to the right to an instruction on the lesser included offense of simple battery, claimed to present Earl Warren's (Warren) theory of the case; error in not severing Warren's trial from joint trial with other defendants; and the contention that the evidence was not sufficient to sustain the verdict. We hold that no error occurred in connection with Warren's trial, and the judgment and sentence entered by the district court is affirmed.

In his Brief of Appellant, Warren states these issues:

I. Did the trial court err by refusing to give an instruction on "simple" battery?

II. Did jury instruction No. 9 create an impermissible irrebuttable presumption on the deadly weapon element of aggravated assault and battery?

III. Did failure to instruct the jury on "simple" battery deny appellant's right to have his theory of the case presented to the jury?

IV. Was plain error committed by not severing the appellant's trial from the trial of the other defendants?

V. Was there sufficient evidence to convict appellant of aggravated assault?

In its Brief of Appellee, the State of Wyoming (State) synthesizes the same issues into four, as follows:

I. Did the trial court err by consolidating the Appellant's trial with that of the three other defendants?

II. Did the trial court commit reversible error by failing to give an instruction on "simple" battery?

III. Did the Court err in giving jury instruction number nine defining the elements of aggravated assault and battery?

IV. Was there sufficient evidence to support a conviction of aggravated assault and battery?

The crime for which Warren was convicted was committed in the course of a brawl that occurred in the parking lot of the Holiday Inn at Riverton at about 1:30 A.M. on September 10, 1989. A complete narrative of the events surrounding Warren's crime is not necessary. The conflict in its several ramifications was one of those inexplicable, dipsomaniacal confrontations, and only certain aspects of what occurred have any pertinency in this appeal. Another chapter of the story may be found in the opinion of the court in Shongutsie v. State, 827 P.2d 361 (Wyo.1992). It is sufficient to note that, in the course of the conflict, Lindberg Shongutsie pounded the skull of the victim, Richard Ferris, Jr., with a baseball bat, a 4"' X 4"' chunk of wood and, perhaps, other bludgeon-like instruments. While Ferris lay sprawled on the pavement of the motel parking lot, apparently unconscious, witnesses observed Warren kick Ferris once or twice in the head. Warren was wearing shoes described as Hush Puppies TM. Although Ferris weighed approximately 200 pounds, and Warren weighed only 150 pounds, the kicks that were delivered were described as having been accomplished with sufficient force to move the victim's limp body by causing it to rotate some 90 degrees.

As a product of the night's events, Lindberg Shongutsie was convicted of second

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degree murder for killing Ferris. Warren was convicted of aggravated assault and battery with a deadly weapon because he was found guilty of kicking Ferris in the head. Russell Warren, Warren's brother, was convicted of aggravated assault and battery committed upon a different victim in the course of the fight. Rebecca Shongutsie, Lindberg Shongutsie's wife, was acquitted of a charge of aggravated assault and battery in which the alleged victim was Ferris. The four defendants were tried together in a single proceeding and in front of a single jury.

Critical testimony with respect to the offense of aggravated assault and battery 1 came from a pathologist. The pathologist conducted the autopsy on the body of Ferris on the evening of September 15, 1989, shortly after Ferris died from the injuries he had suffered in the brawl that occurred on September 10. The pathologist's conclusion with respect to the cause of death was: "brain death, secondary to the central nervous system lacerations and contusions and skull fractures, which was secondary to the blunt traumatic injury to the head." The pathologist also testified that some of the abrasions and bruises on Ferris' head could have been caused by the kicks delivered by Warren. His testimony then continued:

Q. [By defense counsel for Lindberg and Rebecca Shongutsie] And I think you already told us that the fractures that you observed were consistent as having been produced by a block of wood or a bat or any object that was capable of administering substantial force to that portion of the head.

A. That's correct, yes, sir.

Q. Okay. Whether we've mentioned them or not?

A. Whether we've mentioned them or not.

Q. You indicated earlier that you didn't think that a person wearing Hush Puppies[TM] was likely to inflict the type of fractures you observed if he kicked a person.

A. Yes, I did.

Q. Okay, Did you make any assumption about the force with which that kick was applied?

A. No, I really didn't. I was assuming probably all force of kicks by an average individual.

Q. Okay. Would an average kick--well, let me ask you first. Did you make a determination as to the size of Mr. Ferris?

A. Yes, I did.

Q. How big was he?

A. Mr. Ferris had a measured length of, on the autopsy table, of six feet, one inch, we estimated his weight at about 200 pounds.

Q. Okay. Would the average kick that you are talking about be sufficient to reorient the body of a person that size by 90 degrees?

A. I'm not sure what you mean by reorient. You mean move the body 90 degrees? Is that what you mean?

Q. Right.

A. Is Mr. Ferris lying down at this point or standing?

Q. Lying down.

A. That would be a strong kick.

Q. Okay. Now, factoring that into your opinion, could that type of kick have either caused or created additional damage?

A. Well, a kick will cause damage. I have not said that a kick will not cause damage.

Q. Sure.

A. So I'm not really sure I understand your question.

Q. I mean on a kick of that type, if you had a small skull fracture, could it enlarge the fracture?

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A. If a kick were applied to an area that was previously injured, yes, it would cause more severe damage to that area or more extensive damage than if there were no injury there in the first place. Especially if there were a skull fracture in that area, if--and at that point the skull is already fractured and the brain may already be damaged, a kick to that area would accelerate or accentuate or aggravate the brain damage.

Q. Okay. And so we're clear, this young person didn't die because he had a skull fracture, did he?

A. He died because his--well, his brain died because he had injury to the brain.

Q. That's right. It was the injury that occurred inside the skull. Isn't that what really caused the death?

A. The injury occurred inside the skull. The brain was damaged.

Q. Okay. And so any force that would apply with such consequence to cause injury inside the brain, whether it be--result in a fracture or not, could cause death; isn't that true?

A. In this particular case, if other injuries were already present in the brain and the skull fractures were present, any additional injury would exacerbate or add to brain injury.

Q. The real problem, as I understand it, is the bleeding and the pressure and the damage to the brain inside the skull. It's not the fact that the skull is cracked.

A. That's correct. You can have brain injury without having a skull fracture.

Q. Right. And in fact, it's not unusual for death to result from brain injury without skull fracture; isn't that true?

A. It occurs not uncommonly, yes.

In his testimony, the pathologist agreed the injuries to the right side of the victim's head were not as serious as the injuries to the back of his head. He testified that the injuries to the right side could have been caused by soft shoes. He also agreed the abrasions and bruises to Ferris' head could have been caused by his falling to the pavement in the parking lot, and that it would be difficult for a man of 150 pounds to cause the body of a 200 pound man to rotate 90 degrees by kicking him in the head. He stated, however, that this could be accomplished. The pathologist further agreed with the proposition that the injuries to the right side of the head would probably not have been life-threatening. That was tempered, however, by his previous testimony that, given a victim in Mr. Ferris' circumstances, the situation was different from that of a person who had not suffered any injury at all prior to any kicking.

It is in the context of this factual background that Warren complains about an impermissible instruction incorporating a presumption. His specific contention is that Instruction No. 9 led the jury to presume that his shoes were deadly weapons and, since no objection was made to the instruction, he urges that the giving of the instruction constitutes plain error. The instruction read:


Earl Warren is charged with aggravated assault and battery in violation of Section 6-2-502(a)(ii), W.S., 1977, as amended. Pertinent portions of that statute provide as follows:

"a person is guilty of aggravated assault and battery if he ... intentionally or knowingly causes ... bodily...

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