Widdison v. State, S-17-0138

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Fox, Justice.
• Citation: 410 P.3d 1205
• Parties: Misty Lynn WIDDISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Docket Number: S-17-0138
• Decision Date: 16 February 2018

410 P.3d 1205

Misty Lynn WIDDISON, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-17-0138

Supreme Court of Wyoming.

February 16, 2018

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Harper, Assistant Attorney General. Argument by Ms. Harper.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

Fox, Justice.

¶1] A jury convicted Misty Lynn Widdison of aggravated assault and attempted second-degree murder after she stabbed her uncle. Ms. Widdison argues that the jury instructions contained numerous errors and that evidence of specific instances of conduct relevant to her uncle's violent character was erroneously excluded. Because the trial court improperly resolved the disputed factual question of whether Ms. Widdison resided in her uncle's home and accordingly declined to give the defense's proposed instruction regarding the duty to retreat in one's residence, we reverse and remand.

ISSUES

[¶2] We reorder, rephrase and clarify the issues as follows:

I. Did the district court err when it:

A. Rejected the defense's proposed instruction regarding the duty to retreat in one's own residence based on the court's determination of fact?

B. Provided the jury with two separate standards for assessing the claim of self-defense without indicating which standard applied to which charge?

C. Gave an instruction on the right to arm oneself in anticipation of an attack which was limited to situations of extreme danger?

D. Gave instructions regarding the first aggressor and the duty to retreat that did not clearly allocate the burden of proof and that have been held to constitute plain error?

E. Gave an incorrect malice definition?

F. Failed to provide definitions of "recklessly" and "recklessly under circumstances manifesting an extreme indifference to the value of human life"?

II. Did the district court abuse its discretion when it prohibited testimony of specific instances of conduct relating to the victim's character for violence under W.R.E. 404(a)(2) and 405(b) ?

[¶3] The district court's resolution of the factual question whether Ms. Widdison resided in David Jones' home requires us to reverse and remand. Accordingly, we address the remaining issues only to the extent our resolution will be helpful to the district court on remand.

FACTS

[¶4] Ms. Widdison resided with her uncle, Mr. Jones, off and on, usually six or more months at a time, for five years. Beginning February 22, 2016, Ms. Widdison again began staying with Mr. Jones. On Sunday, February 28, Mr. Jones brought home a case of beer and a bottle of rum and shared it with Ms. Widdison. They drank and watched television for most of the afternoon and into the evening. At around 4:30 that afternoon, Mike Nygard, a friend of Mr. Jones, stopped by. He testified that both Ms. Widdison and Mr. Jones were very drunk and were arguing. He stayed for several hours, and at one point took Ms. Widdison to his home. He took her

[410 P.3d 1209

back at approximately 7:30 p.m., but did not go inside.

¶5] About a half hour later, Mr. Nygard received the first in a series of voicemails from Ms. Widdison. Mr. Nygard did not listen to the voicemails until later that evening when Ms. Widdison's mother telephoned him. Ms. Widdison's mother and stepfather had received a voicemail from Ms. Widdison in which she said, "I've got a bleeder" and indicated she needed help. In response, they contacted Mr. Nygard and asked him to check on Widdison and Jones. Mr. Nygard listened to his voicemails. In the final voicemail, Ms. Widdison repeated the statement, "cleanup on aisle nine" several times. Mr. Nygard called 911.

[¶6] When the sheriff's officers arrived, Ms. Widdison came outside, said something they did not understand, and went back into the home. They entered and found Mr. Jones lying on the floor, covered with blood, and stating something about molesting little girls. Ms. Widdison made statements indicating that Mr. Jones had "tried touching" her. Bloody footprints matching Ms. Widdison's boots surrounded Mr. Jones, and the blood on the carpet had dried by the time the officers arrived. Two bloody knives were found in the kitchen sink. EMTs arrived shortly after the sheriff's officers and began to administer first aid. Mr. Jones was hospitalized and treated for a cut on his hand and three stab wounds, one in his thigh and two in his neck.

[¶7] Mr. Jones did not have a clear recollection of the events leading up to the incident. He did testify that when their argument began to escalate, he told Ms. Widdison that she had to leave his home. Ms. Widdison testified that the conflict arose because Mr. Jones insisted that she give him oral sex in exchange for staying at his home. She stated that he threatened her with a knife and pinned her to the ground, and that she wrestled the knife away from him. She recalled nothing about the stabbing or a second knife. Ms. Widdison also testified that she was afraid Mr. Jones was going to kill her and that he had threatened her with weapons before. The defense presented two additional witnesses. Darcey Fulmer, another of Mr. Jones' nieces, testified that Mr. Jones had a propensity for violence and inappropriate sexual solicitation and touching, especially when he was drunk. The second witness, Mr. Jones' nephew, Yancey Norton, also testified regarding Mr. Jones' reputation for violence and for making unwanted sexual advances. Mr. Norton recounted an incident in which Mr. Jones had locked him and Ms. Widdison in the basement and threatened to kill them with a gun he was holding. The district court interrupted the testimony and prohibited the defense from presenting that or other testimony regarding specific instances of Mr. Jones' conduct. The defense rested without calling two additional family members who had been listed as witnesses to testify regarding Mr. Jones' reputation and propensity for violence.

[¶8] The district court instructed the jury regarding both aggravated assault and attempted second-degree murder. The instructions included instructions on self-defense, the right to arm, and the definition of "maliciously" as applied to attempted second-degree murder. The court refused Ms. Widdison's proposed instruction on the "castle doctrine."¹ These instructions are discussed in detail below. The jury returned guilty verdicts on both counts, and the district court sentenced Ms. Widdison to concurrent sentences of twenty-five years on the attempted second-degree murder charge and eight to ten years on the aggravated assault charge. This appeal follows.

DISCUSSION

I. Did the jury instructions result in prejudicial error?

A. Did the district court err when it rejected the defense's proposed instruction regarding the duty to retreat in one's own residence based on the court's determination of fact?

[¶9] Ms. Widdison argues that the district court erred when it refused to give her proposed

[410 P.3d 1210

castle doctrine instruction. The question of whether a cohabitant may assert the castle doctrine against another cohabitant is a question of first impression in Wyoming. Accordingly, we first consider this issue. Because we conclude that the castle doctrine applies between cohabitants, we will also consider whether the district court's refusal to give the castle doctrine instruction was erroneous.

1. Cohabitants and the use of the castle doctrine

[¶10] The majority of jurisdictions that have considered the issue conclude that a cohabitant does not have a duty to retreat in his own home when, through no fault of his own, he is assailed by another cohabitant.² Linda A. Sharp, Homicide: duty to retreat where assailant and assailed share the same living quarters , 67 A.L.R.5th 637, § 2(a) (1999 & 2017 Supp.) (fourteen jurisdictions hold cohabitant has no duty to retreat; seven jurisdictions require cohabitant to retreat, one of which (Florida) has since abandoned that rule); see also State v. Shaw , 185 Conn. 372, 441 A.2d 561, 565 (1981) (noting that most jurisdictions have adopted the rule that there is no duty of retreat with cohabitants and unlawful intruders). These courts reason that it would be illogical to require retreat when one is attacked in one's own home by a cohabitant, but not when attacked by a stranger. "The danger posed and the sanctuary of the dwelling is the same regardless of the status of the attacker." State v. White , 20 Neb.App. 116, 819 N.W.2d 473, 479 (2012) (citation omitted). In State v. Glowacki , 630 N.W.2d 392, 401-02 (Minn. 2001), the Minnesota Supreme Court adopted the majority rule, explaining:

We require reasonable retreat in self-defense outside the home because the law presumes that there is somewhere safer to go-home. See [ State v. Carothers , 594 N.W.2d 897, 900 (Minn. 1999) ]. But self-defense in the home is based on the premise that the home is "a place critical for the protection of the family." Id. at 901. Requiring retreat from the home before acting in self-defense would require one to leave one's safest place. As Justice Cardozo explained in People v. Tomlins , 213 N.Y. 240, 107 N.E.

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