Warren v. State
| Citation | 809 P.2d 788 |
| Decision Date | 18 April 1991 |
| Docket Number | No. 90-141,90-141 |
| Parties | Richard WARREN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
James H. Barrett, Cheyenne, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Hackl, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Prosecution Assistance Program. Theodore E. Lauer, Director, and Cynthia L. Harnett, Student Intern, Cheyenne, for appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
I. The evidence is insufficient to sustain a conviction of attempted manslaughter.
II. The court erred in denying defendant's motion for a new trial.
We affirm.
On July 14, 1989, Richard Warren was napping in his trailer home at 1418 Plum, near Cheyenne. About 7:00 p.m. John Johnson arrived at Warren's home and knocked on the door. Johnson was buying a truck from Warren and Warren's wife and still owed them $150. When Warren answered the door, Johnson told him that he would be late with the $50 payment then due on the truck because he had quit his job. The two men then became engaged in conversation on the partially enclosed porch and steps outside the door to the trailer. Their discussion became "heated," as Warren expressed doubt that Johnson would pay him, and Johnson replied by asking Warren "what his problem was."
As tempers flared Johnson also warned Warren to leave Johnson's brother-in-law Twigg alone, a reference to an earlier altercation between Twigg and Warren, and Warren yelled at Johnson to "get out." Johnson left the porch, climbed into the truck, and began to back it down Warren's driveway. Warren went into his home and emerged with a semi-automatic .22 cal. rifle. He fired one shot that struck the ground in front of the truck. He also shouted at Johnson. Johnson was trying to leave because he was afraid that Warren might shoot him, but the truck stalled and rolled to a halt in the road at the foot of the driveway and perpendicular to it.
Johnson and the two witnesses to the shooting--Bowen and Twigg--who were working in a garage on Warren's property, testified that Warren ordered Johnson out of the truck and Johnson complied. Warren then drew the rifle to his shoulder, took aim and fired, the bullet striking Johnson in the left leg above the knee. Johnson dove back into the cab of the truck, ducked down to avoid being shot again, and tried to get the truck started.
Warren then aimed and rapidly fired a third shot. Eyewitness Twigg testified that he saw "[Warren] take another bead again for [Johnson's] head" before pulling the trigger. This was just after Johnson ducked down. Twigg said that Johnson "laid down when the shot went off, I thought he was dead." This bullet went through the cab of the truck above the prostrate Johnson, entering the open driver side window and exiting through the open passenger side window. It then passed through the passenger side mirror of the pickup and through a mailbox on the far side of the road.
After firing the three shots Warren turned away and walked back into his house. There, he called his wife at work, and she told him to call the police. She then called the police to report the shooting. Johnson remained in Warren's driveway, where he received assistance and first aid from the two witnesses and one of Warren's neighbors. He was later placed in an ambulance and transported to a hospital. Subsequently, after a period of negotiation, Warren surrendered to law enforcement authorities.
Our standard of review for a sufficiency of the evidence claim provides that we consider the evidence in the light most favorable to the state and draw all reasonable inferences therefrom. Longfellow v. State, 803 P.2d 848, 854 (Wyo.1990). We are concerned only that the evidence, viewed in this light, supports a reasonable inference of guilt beyond a reasonable doubt and not with whether that evidence convinces this court beyond a reasonable doubt of the appellant's guilt. Griffin v. State, 749 P.2d 246, 248 (Wyo.1988).
The offense of attempted voluntary manslaughter was defined in jury instruction 12, which set out the following elements:
1. The crime occurred within the county of Laramie, on or about the date of July 14, 1989; and
2. The defendant attempted to kill a human being; and
3. The defendant acted without malice, express or implied; and
4. The defendant acted voluntarily, upon a sudden heat of passion.
5. The defendant did not act in self-defense.
The date and location of the shooting are not in dispute. Warren argues only that there is no evidence of an intent, or attempt, to kill. He does not contest the finding that he acted without malice, on a sudden heat of passion, and without the defense of self-defense. Therefore, we need only review the evidence supporting the second element, although we will briefly address the remaining elements to "cover the bases."
Regarding whether Warren attempted to kill a human being, the evidence is that he fired three shots as Johnson retreated, at least two of which were aimed at Johnson, with the third aimed directly at Johnson's head. The second of those shots struck Johnson in the upper leg, seriously wounding him.
Both of the state's eyewitnesses testified the second and third shots were aimed at Johnson. Bowen testified that Warren had the rifle up to his shoulder, aiming it at Johnson and then firing as Johnson sat in the truck after being struck by the second shot. Twigg stated that he saw Warren "take another bead" for Johnson's head before pulling the trigger for the third time. That bullet passed through the passenger compartment of the truck an instant after Johnson threw himself down on the seat in an effort to avoid being shot again.
In Smith v. State, 564 P.2d 1194, 1198 (Wyo.1977), this court noted that "[i]ntent to kill may be presumed from the evidence that a person has assailed another violently with a dangerous weapon likely...
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