Summary 2007 WY 59

Summary of Decision issued April 11, 2007

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Case Name: Rawle v. State

Citation: 2007 WY 59

Docket Number: 05-164

Appeal from the District Court of Lincoln County, Honorable Jere Ryckman, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director DAP; Meghan Reed and Cherie Trine, Student Interns DAP.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robert A. Nicholas, Senior Assistant Attorney General.

Date of Decision: April 11, 2007

Issues: Whether there was a fatal variance between the pleadings and either the jury instructions or the facts proved at trial. Whether the jury instructions accurately set out the law of felony murder, and did the instructions prejudice Appellant. Whether there was sufficient evidence to convict Appellant.

Facts/Discussion: An information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. A variance arises when the evidence presented at trial establishes facts that are different from those alleged in the indictment. Similarly, a shift in the government's theory from the one set out in the indictment to that presented at trial may also constitute a prejudicial variance. However, an action will not be reversed unless the variance affects the defendant's substantial rights. Even in cases where an appellate court determines the existence of a variance, such a variance is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution. Appellant in the present action contends that he was convicted of felony murder as an aider and abettor, but the information charging him with felony murder and the elements provided in the jury instructions required that the state to prove that he actually killed the victim.

Wyo. Stat. 6-1-201 provides that an aider and abettor is to be informed against, tried, and convicted in the same manner as if he were a principal, no distinction is made between an aider and abettor and principal. Hence, an aider and abettor is guilty of the principal crime. Proof of participation in either capacity is sufficient to convict a defendant as a principal, and it is not necessary that the information refer to the aiding and abetting statute. While reference to Wyo. Stat. 6-1-201 in the charging document may be the better practice, the failure to specify that Appellant was an aider and abettor to felony murder did not render the information insufficient or restrict the State to proving that he had been the principal in the murder. Accomplice liability for felony murder is unique in character. Felony-murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. A killing occurring in a continuous transaction involving a robbery is a classic example of felony murder.

Contrary to Appellant's assertion that he had no idea that he was being prosecuted as an aider and abettor, other information in the record revealed that defense counsel had received notice that the State viewed the crimes charged as joint endeavors. The affidavit of probable cause identified all three perpetrators, described the eyewitness testimony, and detailed the incriminating statements one of the other participants gave to the police. Defense counsel obtained ample discovery from the State, including witness statements. If any doubt remained concerning the nature of the State's case, it was resolved several weeks before trial when the State submitted its proposed jury instructions, including an aiding and abetting instruction. Appellant never requested a bill of particulars and, even after receiving the State's proposed jury instructions, did not request a continuance or any clarification from the court or the prosecution.
Based upon the record, it was difficult to believe that Appellant could not have anticipated the State's case against him.
A trial court is given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found. Instructions must be considered as a whole, and individual instructions, or parts of them, should not be singled out and considered in isolation. Prejudice will be determined to exist only where an appellant demonstrates that the instruction given confused or misled the jury with respect to the proper principles of law. When reading the instructions given to the jury in this action as a whole, the jury was properly and adequately instructed regarding felony murder. If any confusion arose, it likely stemmed from an instruction supplied by the defense which did not state a cognizable defense under Wyoming law. It is similar to one which has been rejected because it is designed to insulate the defendant from culpability by arguing that his cohort actually killed the victim. A defendant is not entitled to such an instruction because that approach has no place in the felony murder doctrine. Accordingly, the district court could have properly rejected that instruction, but having given it, the error was more prejudicial to the State than to Appellant. Pursuant to the doctrine of invited error, this instruction requested by the defense cannot provide grounds for reversal unless it was "necessarily prejudicial," which had not been demonstrated.

Holdings: The State presented testimony from two eyewitnesses. Both of these witnesses discussed the conduct of Appellant and his co-conspirators before, during, and after the robbery and murder. Although a defendant's presence at the time and place of the crime does not conclusively establish guilt as an aider, abettor, or principal, an intent to engage in the criminal venture may be shown by the relationship of the parties and by their conduct before and after the offense. From eyewitness testimony, the jury in this case heard how the conspirators, including the Appellant, freely talked about and carried out their drug related activities. The robbery was also planned and discussed in front of the witnesses. They carried out their plan, and the victim was stabbed to death. One of the witnesses saw the body, the murder weapons, and blood on Appellant, and watched him help dispose of evidence afterward. There was testimony concerning Appellant's active role in driving the victim's vehicle to a remote location and burning it with the dead body inside. Affording every favorable inference to the State, the witness' testimony was sufficient to establish the conspiracy, especially when considered with the other evidence of the behavior of the co-conspirators immediately before and following the robbery and murder. Furthermore, Appellant admitted that he was well aware of the intentions of his companions to rob the victim using steak knives. It was undisputed that armed with this knowledge, he contacted the victim and arranged the meeting anyway. Although Appellant wants to characterize his actions as innocent, the jury could easily infer that he was fulfilling his role in the criminal scheme. Although he claims to have acted under threat, the testimony from the eye-witnesses did not support reluctance or duress. The fact that Appellant provided an alternative explanation for his behavior is irrelevant. The jury was allowed to weigh all the evidence and could have easily concluded that Appellant's undisputed participation in destroying evidence was corroborative of his involvement in the crime. Viewed in a light most favorable to the State, the evidence supported the jury's finding of guilt.

Affirmed.

J. Burke delivered the opinion for the court.

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