Summary 2011 WY 169

Summary of Decision December 28, 2011


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Case Name: Burnett v. State

Citation: 2011 WY 169

Docket Number: S-11-0081

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464964

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General.

Date of Decision: December 28, 2011

Facts: Appellant was convicted on one count of attempted second degree murder and two counts of aggravated assault and battery. The trial court merged all three counts for purposes of sentencing, and sentenced Appellant to a prison term of twenty to thirty years. Appellant appeals his conviction, focusing mainly on jury instructions he claims were improper.

Issues: Whether the jury was properly instructed on the elements of attempted second degree murder. Whether the jury was properly instructed on the definition of “recklessly,” one of the elements of aggravated assault and battery. Whether the fact that the elements of attempted second degree murder and the elements of aggravated assault and battery are identical deny Appellant due process of law.

Holdings: Reading the language of Wyo. Stat. 6-2-104 and Wyo. Stat. 6-1-301(a) (2009) together, a person may be convicted of attempted second degree murder only if a jury makes two related findings: first, that he intentionally performed an act constituting a substantial step toward completing the underlying crime of second degree murder; and second, that he acted “purposely and maliciously” as required by the statute defining second degree murder. Thus, the instructions in the Appellant’s case needed to inform the jury that, to convict him, it had to find that the Appellant intentionally stabbed the victim, and that he did so purposely and maliciously. The Appellant points out that the instruction setting out the elements of the crime as charged did not include acting purposely and maliciously on the list. Accordingly, he claims that “the jury was not informed of the necessary elements of malice and purpose,” as set forth in Wyo. Stat. Ann. 6-2-104, and that his conviction was in error because the jury “never determined whether these had been proven beyond a reasonable doubt.”

The Appellant is correct that this one instruction did not include the words “purposely and maliciously.” However, this instruction is not evaluated by itself, but it is considered in context with the other instructions relating to attempted second degree murder. The instruction immediately prior to the instruction on which the Appellant focuses, informed the jury that a person must act “purposely and maliciously” to commit the crime of second degree murder. The instruction immediately following the instruction at issue, defined both purposely and maliciously. These instructions, as a whole, adequately informed the jury that it must find the Appellant had acted purposely and maliciously in order to convict him of attempted second degree murder. The Appellant has not demonstrated that these jury instructions were in clear and obvious violation of an established and unequivocal rule of law. Consequently, they were not plainly erroneous.

The Appellant contends that the district court inadequately instructed the jury on the definition of “recklessly” as related to the crime of aggravated assault and battery causing serious bodily injury. Wyo. Stat. 6-2-502(a)(i) provides that a person is guilty of aggravated assault and battery if he “Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Based on this statutory language, in an aggravated assault and battery trial, the jury should be given an instruction defining ‘reckless under circumstances manifesting extreme indifference to the value of human life’ rather than just ‘reckless.’

The Appellant points to the definition of the term recklessly, given by the district court and complains that this definition does not incorporate the concept of “recklessly under circumstances manifesting extreme indifference to the value of human life,” as required for aggravated assault and battery. His argument overlooks the other instructions relating to aggravated assault and battery that set forth precisely the language at issue. Again, the focus is not solely on a single instruction, but on the instructions as a whole. Considering all of the instructions, that the jury was adequately instructed on the element of “recklessly under circumstances manifesting extreme indifference to the value of human life” for purposes of the crime of aggravated assault and battery.

It should also be noted that Wyo. Stat. 6-2-502(a)(i) provides that a person is guilty of aggravated assault and battery if he “Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” (Emphasis added.) The legislature’s use of the word “or” indicates that any one of the three states of mind is sufficient to support a conviction. In a special verdict form in the Appellant’s case, the jury found that he had acted “intentionally,” and “knowingly,” and “recklessly under circumstances which showed extreme indifference to the value of human life.” Thus, even if the district court had not properly instructed the jury on the definition of reckless, the jury’s findings that he acted intentionally and knowingly would be sufficient to sustain the Appellant’s conviction. The jury instructions regarding aggravated assault and battery causing serious bodily injury were not in error and caused no prejudice to the Appellant.

In his third issue, The Appellant claims that the elements of attempted second degree murder are identical to the elements of aggravated assault and battery. He asserts that, because the two crimes are identical, it is left “to the whim of the prosecutor” to decide which crime to charge, and the prosecutor is free to make that decision on arbitrary and discriminatory bases.

The elements of the two crimes are not identical. The statutory provisions define the crime of aggravated assault and battery as being with a deadly weapon. Applying this definition, a person must use a deadly weapon to be convicted of this crime. A person need not use a deadly weapon in order to be convicted of attempted second degree murder. Plainly, these two crimes do not have identical elements.

The crime of aggravated assault and battery is defined as causing serious bodily injury. Applying this definition, a person must act “intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life” in order to be convicted. In contrast, to be convicted of attempted second degree murder a person must act “purposely and maliciously.” The Appellant asserts that the term “purposely,” an element of attempted second degree murder, is synonymous with “intentionally” and “knowingly,” elements of aggravated assault and battery. Section 21.01C of the Wyoming Criminal Pattern Jury Instructions states that “‘Purposely’ means intentionally,” providing support for the Appellant’s assertion. However, to be convicted of attempted second degree murder, a person must act both purposely and maliciously. The term maliciously conveys the meaning of hatred, ill will, or hostility toward another. Acting “maliciously” is an element of attempted second degree murder, but it is not an element of aggravated assault and battery causing serious bodily injury. Again, the elements of the two crimes are not identical.

The similarity between “maliciously” and “recklessly under circumstances manifesting extreme indifference to the value of human life” cannot be ignored. But even if these different elements of the two crimes were functionally equivalent, the overlap does not violate the Appellant’s constitutional rights. Although the statutes may create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied. With regard to equal protection rights, when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants.

The Appellant’s conviction is affirmed.

J. Burke delivered the opinion for the court.

J. Voigt specially concurred. The sentences need not have merged.