Appeal from the District Court of Niobrara County The Honorable Keith G. Kautz, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Ripp Causey challenges his conviction on one count of aggravated assault and battery. We will affirm his conviction.
[¶2] Mr. Causey presents these issues:
1. Did the district court properly instruct the jury regarding Mr. Causey's right of self-defense?
2. Did the prosecutor improperly comment on Mr. Causey's right to silence?
[¶3] On the afternoon of November 5, 2006, Officer James Frye, of the Lusk Police Department, was dispatched to the home of Sandra Serres. Ms. Serres had called 911 and reported a fight. Upon arriving, Officer Frye observed Mr. Causey standing outside the home. He was bleeding from his head and "was holding a machete." Officer Frye then saw David Howard exit the home. Mr. Howard's hands were bleeding profusely. Around this time, Niobrara Sheriff Deputy Randy Stensaas also arrived at the scene. Deputy Stensaas drew his weapon and ordered Mr. Causey to put the machete on the ground. Mr. Causey complied. Officer Frye and Deputy Stensaas interviewed Mr. Causey, Ms. Serres, and Mr. Howard. After the interviews, Mr. Causey was arrested. An information was subsequently filed charging Mr. Causey with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2005)*fn1 and attempted second-degree murder in violation of Wyo. Stat. Ann. §§ 6-2-104 and 6-1-301.
[¶4] The trial testimony revealed a contentious history between Mr. Causey and Mr. Howard. Ms. Serres testified that she previously dated and lived with Mr. Causey. In approximately June 2006, she began dating Mr. Howard. She moved out of the home she shared with Mr. Causey and, soon after, began living with Mr. Howard. She continued to maintain a friendship with Mr. Causey, which added strain to the relationship between Mr. Causey and Mr. Howard. A number of verbal confrontations occurred between Mr. Causey and Mr. Howard after her break up with Mr. Causey. On one previous occasion, a police officer had been called to serve as a "civil standby" to deter a physical confrontation between the two men. Mr. Howard eventually moved out of the home he shared with Ms. Serres, but continued his relationship with Ms. Serres. They were still in an exclusive dating relationship on November 5, 2006.
[¶5] On that morning, according to Ms. Serres, she and Mr. Howard helped a friend move. Mr. Howard left after arguing with the friend, and later, Ms. Serres called Mr. Causey to take her home. While Ms. Serres and Mr. Causey were at her home, she received several calls from Mr. Howard. According to the testimony of both Ms. Serres and Mr. Howard, Mr. Causey made several loud comments and threats while Mr. Howard was on the telephone with Ms. Serres, and Mr. Howard could hear Mr. Causey's remarks. Specifically, Mr. Howard testified that Mr. Causey said that "I had no balls, called me a punk." According to Ms. Serres, Mr. Causey stated "[t]hat he would just kill the punk and to bring it on." Mr. Causey offered a different version of the comments. He testified that he and Ms. Serres were having a normal conversation, and that Mr. Howard happened to hear the conclusion of one of Mr. Causey's statements as Ms. Serres answered the telephone.
[¶6] In any event, despite Ms. Serres's expressed desire that he not do so, Mr. Howard traveled to her home. When Mr. Causey learned that Mr. Howard was on his way, he went to his vehicle, retrieved the machete, and returned inside. Ms. Serres called the police. Before the police arrived, Mr. Howard and Mr. Causey engaged in a physical altercation. At trial, conflicting evidence was presented regarding details of the fight. For example, Ms. Serres and Mr. Howard testified that Mr. Howard pulled the screen door open and walked past Ms. Serres without touching her. Mr. Causey, in contrast, testified that Mr. Howard "jerked the door out of her hand and shoved her against the wall and never even slowed down."
[¶7] Mr. Howard testified that when he entered the residence, he saw "something coming at me, and I threw up my hand, and there was a scuffle after that." Mr. Howard later discovered that the "something" coming at him was Mr. Causey's machete. During the "scuffle," according to Mr. Howard, he grabbed Mr. Causey, shoved him, and eventually ran him out the door and flung him to the ground. Mr. Howard said that Mr. Causey's head injury occurred when he pounded Mr. Causey's head on the ground. Mr. Howard sustained severe cuts to his hands, which required surgery, and he testified that he had not recovered full function of his hands.
[¶8] Mr. Causey's trial testimony about the conflict differed from Mr. Howard's version, and also varied in several respects from what he told law enforcement officers soon after the incident. Mr. Causey testified that he turned to leave after Ms. Serres left, but Mr. Howard grabbed me by the left arm and the shoulder. He spun me and slammed me into the corner of the wall, the kitchen and the hallway, and cut my head open. He slammed me into the sofa. He slammed me into the desk. He threw me on the floor, started stomping on me.
Mr. Causey described batting ineffectually at Mr. Howard while being struck and kicked, and while Mr. Howard slammed his head down on the floor. Mr. Causey testified that Mr. Howard received his injuries as follows:
So then I was still bent over looking at the floor, and he was slamming me, and I was trying to get my arm up so I could take another swing at him to get him away from me; and he evidently saw the machete and grabbed it. I didn't realize all these things until later. I was outside what happened. It happened so fast, I didn't realize it at that time; but he grabbed the machete; and I felt him pull on it; and he didn't pull it out of my hand. I don't know how, but I still had a hold of it; and he kind of stepped back a little bit; and he had his hand like this; and I was still bent over; and I was taking a swing and raised up and just made a wild swing at him to back him up; and he raised his arms up a little, and I hit him on this forearm.
Mr. Causey then left. Officer Frye arrived and found him outside.
[¶9] Mr. Causey was acquitted of attempted second-degree murder, but found guilty of aggravated assault and battery. The district court sentenced Mr. Causey to 7-10 years imprisonment with credit for time served. He appealed.
[¶10] Mr. Causey defended the charges against him by contending that he acted in self-defense. His position on appeal is that the district court did not properly instruct the jury on the law regarding self-defense. His challenge is directed only at Instruction 19, but that instruction is better understood when put in context with all of the self-defense instructions given to the jury:
Before the defendant may be convicted of Aggravated
Assault and Battery or Attempted Second Degree Murder, the State must prove beyond a reasonable doubt that the defendant did not act in self-defense.
A person being assaulted may defend himself if he has reasonable grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so he may use all force which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.
The Defendant was permitted to act in self-defense if he had reasonable cause to believe and did believe that the danger was real and impending and immediate.
It is not necessary that the danger actually was real, or that the danger actually was impending and immediate, so long as the Defendant had reasonable cause to believe and did believe these facts. If the Defendant reasonably believed that danger was real and impending and immediate, he was permitted to act in self-defense even though the other person did not actually intend to harm the Defendant.
One may arm himself in self-defense only if he has reasonable ...