Summary
The Wyoming Supreme Court held that the evidence was insufficient to establish malice for second-degree murder based on a single open-hand slap, reversed the conviction, and barred retrial on that charge. The court also held that trial counsel provided ineffective assistance by failing to present expert testimony concerning causation and remanded for a new trial on voluntary manslaughter. The court further addressed jury instructions, prosecutorial argument, causation, and access to autopsy tissue slides.
Topics
Practice areas
Questions Presented
- Whether the evidence was sufficient to prove beyond a reasonable doubt that Lopez acted maliciously, an element of second-degree murder.
- Whether the evidence was sufficient to prove that Lopez's slap caused Herman's death.
- Whether trial counsel rendered ineffective assistance by failing to obtain and present expert testimony on causation.
- Whether Lopez's statements to police were obtained in violation of Miranda or after an unequivocal request for counsel.
- Whether the release and cremation of Herman's body deprived Lopez of due process or required dismissal of the charges.
- Whether the State's jury instructions and closing argument constituted reversible error.
Holdings
- The State failed to prove beyond a reasonable doubt that Lopez acted maliciously. Evidence of a single open-hand slap, without more, was legally insufficient to support an inference of malice under the circumstances presented.
- Because the evidence was insufficient as a matter of law to establish malice, the second-degree-murder conviction had to be set aside and retrial on that charge was barred.
- Trial counsel provided ineffective assistance by failing to obtain a proper forensic-pathology review and expert testimony challenging the State's evidence that Lopez's slap caused Herman's death.
- The district court properly denied suppression of Lopez's statements because the statements were voluntary, Lopez waived Miranda rights, and questioning ceased when he asked about obtaining a named lawyer.
- The release and cremation of Herman's body did not require dismissal because the State preserved comparable evidence through coroner's reports, tests, photographs, and tissue slides, and the court found no trial-court error.
Key quotations
“We observe then that, generally, evidence that death caused by an open hand slap without more is insufficient evidence of malice and, therefore, is not murder.” (86 P.3d at 858)
“We hold that the evidence is insufficient as a matter of law that Lopez acted maliciously.” (86 P.3d at 859)
“The requisite showing that expert testimony was available and necessary having been made, we conclude that defense counsel's failure to obtain a proper review of the autopsy report and all associated evidence by a forensic pathologist was deficient performance.” (86 P.3d at 860-61)
Factual background
Lopez and Robert Herman were drinking when Herman pushed Lopez and Lopez responded with a single open-hand slap and a shove onto a couch. Herman later became unconscious and died approximately thirty-four hours after the slap from a head injury that the State's coroner attributed to Lopez's blow. The defense contended that the fatal injury was caused by a fall or an intervening assault and that Herman's chronic alcoholism and fragile veins made him unusually susceptible. Trial counsel did not present a forensic-pathology expert to challenge the State's causation evidence, although a later defense expert testified that the slap likely was not the fatal blow.
Procedural history
A jury convicted Lopez of second-degree murder and the district court sentenced him to twenty to forty years. The district court denied his motion for a new trial, motion to suppress statements, and motion to dismiss based on the cremation of the victim's body. On appeal, the Supreme Court ordered an evidentiary hearing concerning counsel's failure to obtain expert testimony on causation. After that hearing, the district court found counsel effective, but the Supreme Court reversed the murder conviction, barred retrial on that charge, and remanded for a new trial on voluntary manslaughter.
Remand instructions
The second-degree-murder conviction is reversed and retrial on that charge is barred. The case is remanded to the district court for a new trial on voluntary manslaughter. If requested by the defense, the State must provide all tissue slides; alternatively, the defense may rely on the existing version of Dr. Larkin's report and testimony, which must be admitted at the new trial without a Daubert challenge.