Summary 2007 WY 105

Summary of Decision issued July 11, 2007

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Case Name: Hernandez v. State

Citation: 2007 WY 105

Docket Number: 05-297

Appeal from the District Court of Washaki County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Ken M. Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Issues: Whether the district court committed reversible error when it instructed the jury with two mandatory presumptions. Whether prosecutorial misconduct occurred when the prosecutor misstated and misled the jury on the law. Whether cumulative error occurred in Appellant’s trial.

Facts/Discussion: A jury convicted Appellant of attempted second degree murder for cutting Johnson’s throat with a knife.
Jury Instructions: Appellant claimed plain error occurred when the district court gave jury Instruction 13 and 17 regarding presumption of intent to kill and presumption of malice. The plain error standard applied. Appellant must show the claimed error clearly appeared in the record; the error violated a clear and unequivocal rule of law in an obvious way and that Appellant was deprived of a substantial right resulting in material prejudice. The Court discussed Kruchek v. State. The instruction given in Krucheck did not tell the jury the presumption was permissive, and the Court held it violated the Fourteenth Amendment. Similarly, the instructions in the instant case did not tell the jury that the presumption was not mandatory and the jury could refuse to apply it. The Tenth Circuit Court of Appeals has said the error must be quantitatively assessed in the context of the evidence presented to determine whether it was harmless beyond a reasonable doubt. The U. S. Supreme Court decision in Yates v. Evatt elaborated on the test for determining error in the context of jury instructions containing mandatory presumptions. It involves two steps: first, the court asks what evidence the jury actually considered in reaching its verdict; second, the court weighs the probative force of that evidence against the probative force of the presumption standing alone. Applying the Yates test to Appellant’s case, the Court reviewed the evidence the jury considered in reaching its verdict. The Court then weighed the probative force of the evidence against the probative force of the presumption standing alone. The Court reviewed the jury instructions as a whole and concluded the force of the evidence presumably considered by the jury in accordance with the court’s instructions was not so overwhelming to leave it beyond a reasonable doubt that the verdict would have been the same without the presumptions. Appellant showed the error in giving the instructions deprived him of his right to due process resulting in material prejudice. The Court stated their conclusion was strongly influenced by another factor. Appellant’s defense focused on proving he was too intoxicated to form the intent to commit attempted second degree murder or attempted voluntary manslaughter. Despite competent evidence of intoxication, the Court stated, they did not know whether the jurors considered Appellant’s theory of defense in light of the instructions telling them they were required to find malice and intent if they found he used a deadly weapon. Thus the instructions potentially deprived Appellant of his defense.
Prosecutorial Misconduct: Whether or not the prosecutor’s remarks were stated in permissive language, the instructions themselves told the jurors that they were required to find the presumptions upon finding Appellant used a deadly weapon. Plain error occurred in giving the instructions and it was plain error for the prosecutor to argue them.
Cumulative Error: The Court’s holding that it was plain error to give the mandatory presumption instructions is determinative of the appeal. The Court addressed Appellant’s cumulative error claim because retrial is a possibility and the same questions may arise again. The Court reviewed the entire context of Sargeant Brase’s testimony and stated it was clear the prosecutor’s question was not improper. The knife which was the basis of Appellant’s claim of error was found by police during their search. It was found on an end table in the vicinity of where Appellant was sitting in the living room where the stabbing occurred. Presumably, the trial court found the location of the knife sufficient to make it relevant. The final claim of error was that the jury was not instructed on the elements of the lesser included offense of attempted voluntary manslaughter. As in Cutbirth, the jury was instructed on the statutes and elements of second degree murder. The trial court also instructed the jury that if it did not find Appellant guilty of second degree murder, it could find him guilty of the lesser offense of attempted voluntary manslaughter. Appellant did not show he was materially prejudiced by the instruction. In the event of a re-trial, the lesser included offense instruction should include the elements the jury must find in order to convict on the attempted voluntary manslaughter charge.

Holding: The trial court erred when it instructed the jury that use of a deadly weapon raises a presumption of malice and intent to kill without also instructing the jury it was not required to find the presumptions and that the State still had to prove intent and malice beyond a reasonable doubt. The Court was unable to conclude beyond a reasonable doubt that the jury would have convicted Appellant of attempted second degree murder in the absence of the erroneous instructions. The error affected Appellant’s substantial right and resulted in material prejudice. Therefore, the conviction was reversed and remanded.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yosrqg .