Lopez v. State

139 P.3d 445

2006 WY 97

John Kenneth LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 05-106.

Supreme Court of Wyoming.

August 4, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellant, John Kenneth Lopez (Lopez), was convicted of voluntary manslaughter and of being an habitual criminal. He was sentenced to a term of 10 to 15 years of imprisonment, with credit for all time served. Lopez contends that there was insufficient proof of each element of the offense of voluntary manslaughter, that the jury was not properly instructed on the elements of voluntary manslaughter, and that the State's introduction of an habitual criminal charge, in this retrial after reversal of Lopez's original conviction, was improper and vindictive and that the State failed to satisfactorily prove the habitual criminal charge beyond a reasonable doubt in any event. We will affirm.

ISSUES

[¶ 2] Lopez raises these issues:

I. Whether each element of the offense charged was properly established.

II. Whether the jury was properly instructed on the elements of voluntary manslaughter.

III. Whether the State properly sought and proved the habitual criminal allegation.

The State rephrases the issues only slightly:

I. Did sufficient evidence exist to convict [Lopez] of voluntary manslaughter?

II. Did the district court properly instruct the jury on the elements of voluntary manslaughter?

III. Was [Lopez] subjected to vindictive prosecution, and was the habitual criminal allegation properly proven?

FACTS AND PROCEEDINGS

[¶ 3] The event which led to the criminal charges against Lopez occurred on December 18, 1999. A jury found him guilty of second degree murder on November 15, 2000. A sentence of 20 to 40 years of imprisonment was imposed on February 8, 2001. A notice of appeal was filed on March 2, 2001.

[¶ 4] In an opinion issued by this Court on March 24, 2004, we concluded, inter alia, that there was insufficient evidence that Lopez acted maliciously in striking the victim of his crime, Robert Herman (victim), and that Lopez's trial counsel was ineffective in defending his client. Lopez v. State, 2004 WY 28, 86 P.3d 851 (Wyo.2004). Although we will, of course, focus solely on the facts proved at his second trial in resolving the issues raised in the instant appeal, we set out below the facts from Lopez's first appeal to provide background for what follows. As we analyze the issues in this appeal, we will focus our attention on any variations on the evidence adduced at the first trial with the evidence adduced at the second trial. We take note at this juncture that the principal difference between the evidence at the first trial, and that of the second, is that three expert witnesses testified as to the cause(s) of the victim's death, whereas at the first trial, Lopez did not have the benefit of expert testimony on that issue.

After getting off work, Lopez began drinking heavily at the Albuquerque Apartments in Casper with a number of friends sometime after 3:00 a.m. on the morning of December 18, 1999. Lopez and the victim, Robert Herman, were good friends, and Lopez was aware that Herman suffered from chronic alcoholism. According to defense theory, Lopez became upset that Herman was drinking whiskey and told him to stop drinking before he killed himself. Herman pushed Lopez, and Lopez slapped Herman on his head with an open hand and pushed him back down onto a couch. Which hand Lopez used to strike Herman was hotly disputed at trial, and witnesses' testimony about which hand was used was conflicting.

The slap was inflicted about 11:00 a.m. on December 18, 1999. After receiving the slap, Herman went to the post office with a friend, but complained of a headache and returned to his apartment at about 12:30 p.m. Herman's girlfriend and at least one friend entered the apartment through an open backdoor during the afternoon. Late that evening, Herman had locked all doors, and his friends tried to rouse him to answer either the telephone or the door but were unable to do so. By 9:00 p.m., the friends were sufficiently worried to break into the apartment. They found Herman, face down on the floor by his bed, unconscious, and bleeding from the nose and mouth.

Herman was rushed to the hospital but died the next evening, December 19, at about 9:30 p.m., almost thirty-four hours after Lopez struck him. After emergency room medical staff observed trauma to the left side of Herman's head, the police were notified and began an investigation about midnight on the 19th. Police investigators learned of an altercation, and an eyewitness testified that Lopez had struck Herman once with his open left hand on the right side of Herman's head earlier that morning. Another witness testified that he heard a smacking sound and then saw Herman falling back onto the couch and Lopez had his left hand up. The witness assumed that Lopez had "open-handed" Herman to the "right side of the head." Police encountered Lopez at Herman's apartment complex, and Lopez admitted striking Herman during an argument. Police then asked Lopez to go to the police station for an interview. During a recorded portion of the police interview, Lopez admitted to delivering a stiff arm to Herman's face. Police officer Malone testified that, during an unrecorded portion of the police interview, Lopez admitted to hitting Herman once on the right side of his face; however, Lopez demonstrated how he hit Herman and, during that demonstration, Lopez indicated that he had struck Herman once with his right stiff arm to the left side of Herman's face. Lopez' motion to suppress his statements to police was denied.

The same night that police were receiving statements from Lopez and witnesses that Lopez had struck Herman hours earlier, evidence technicians notified police investigators that Herman had marks on his body that appeared to be boot marks; however, police uncovered no evidence that Lopez had kicked Herman. Dr. Thorpen, the coroner, prepared an autopsy report stating that Herman died from "assaultive trauma to head" that was caused after "subject struck on head by hand of known assailant." The autopsy was conducted on December 21, 1999, two days after death and after police had interviewed Lopez. Dr. Thorpen testified that Lopez was the "known assailant" listed as the cause of death and also testified that his conclusions as to how the death had occurred were based on police reports. Lopez was charged with second degree murder on January 3, 2000, and arrested the next day.

At trial, Dr. Thorpen testified as the State's last witness. He testified that the cause of death was a blood clot on the right side of the brain that resulted from a blow administered to the left temple [FN. 1: According to testimony at the evidentiary hearing by defense expert Dr. Larkin, this injury is known as a countercoup blow.]. Dr. Thorpen stated that Herman had numerous health problems that made him susceptible to death by the slap and had previously been treated for dilated veins caused by chronic alcoholism and a previous head injury. Dr. Thorpen conceded that Herman was found on the floor, had a blood alcohol content of .215, and had veins so fragile they could easily rupture from sudden movement. However, Dr. Thorpen would not concede that it was possible that a fall had caused Herman's fatal injury because Herman had been found on a padded carpeted surface.

No evidence at trial indicated that Lopez was aware that Herman possessed these physical weaknesses. Lopez contended that he had pushed Herman in self-defense and the slap was not the fatal blow. Lopez also contended that, between the time that he struck Herman and the death hours later, the fatal blow was caused by an intruder/robber who kicked him with boots. Lopez contended that some of Herman's possessions were missing. In both opening statement and closing argument, the State conceded that Lopez had no intent to kill Herman by slapping him but, by striking the single blow in anger, had committed second degree murder. The verdict form included a charge of voluntary manslaughter.

Defense counsel had requested that the public defender pay for an expert but, before trial, had withdrawn the motion to further research the law, did not renew the motion, and, ultimately, no defense expert testified. Lopez was convicted of second degree murder, his motion for new trial was denied, and his appeal followed. After the public defender was substituted for retained counsel on appeal, it was contended that trial defense counsel had been ineffective for failing to present expert testimony on the issue of causation. This Court granted a partial remand for an evidentiary hearing on the issue of ineffective assistance of trial counsel.

At that hearing, Lopez presented an expert witness, Dr. Larkin, a forensic pathologist from North Carolina. Dr. Larkin testified that because Lopez' slap had not caused immediate bruising and swelling, it was not the fatal blow. Those injuries were apparent later that evening, and it was Dr. Larkin's opinion that the injuries that Dr. Thorpen concluded were caused by a slap were actually caused by a fall.

Before the evidentiary hearing, the State had objected to Dr. Larkin's testimony primarily because he had not reviewed the microscopic tissue slides from the autopsy. Because of time and financial constraints of the public defender and the poor health of Dr. Larkin, the defense had arranged for Dr. Larkin...