Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1]The appellant killed Jason Voss with a shotgun on April 25, 2007. He was charged with second-degree murder, but convicted by a jury of the lesser-included offense of manslaughter. He now challenges that conviction on evidentiary, procedural, and constitutional grounds. Finding no error, we affirm.
[¶2]1. Whether the district court's sua sponte revision of the trial transcript violated W.R.A.P. 3.02 and 3.04, violated the constitutional separation of powers, and violated the appellant's constitutional right to the due process of law?
2. Whether the district court abused its discretion by admitting evidence of the appellant's alleged use of methamphetamine?
3. Whether Wyoming's second-degree murder statute is facially unconstitutional?
[¶3] On April 25, 2007, the appellant and his friend Jason Voss decided to go out and ―do some shooting.‖ After finishing some chores at Voss's grandmother's house, the two men went to their residences, where they picked up several guns, including the appellant's 12-gauge Model 870 Remington shotgun. They then drove to another friend's house, where they smoked marijuana. At about 4:00 p.m., they drove to a local restaurant and liquor store where they purchased cheeseburgers, french fries, and an 18-pack of beer. Eventually, they drove out of Encampment toward Saratoga, and turned onto a county dirt road, eating food, drinking beer, and shooting prairie dogs along the way.
[¶4] Around 6:00 p.m., the appellant called Luke Munson, who was the appellant's friend and Voss's cousin, and asked Munson to join them. When Munson arrived, he obtained a beer, and then took an old oil container out and set it up as a target. As Munson was walking back, the appellant shot at the target while Munson was still ―down range,‖ which scared Munson.
[¶5] The three men began to throw rocks into the air and shoot at them, and then shot at a sage chicken, which they followed over a ridge, believing they had hit it. When they could not find the sage chicken, the appellant began shooting at a nearby rock with his shotgun. What happened next is the focus of this case. Munson testified that the appellant ―[c]hambered a round and turned to his right, shouldered the gun and aimed at my cousin and shot him.‖ The appellant, to the contrary, testified that he shot at the rock three times, then reloaded three shells, and shot twice more at the rock. Thinking he had shot all three rounds, he turned and, ―[w]hen I was turned before I could really bring my eyes around to [Voss], the gun discharged and hit [Voss].‖ The shotgun blast hit Voss in the chin and neck, and he died within minutes.
[¶6] The appellant was charged with second-degree murder, in violation of Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2009). After a preliminary hearing in circuit court, he was bound over to district court for trial on the charged crime. The State's theory of the case was that the appellant was a heavy user of methamphetamine who became volatile and violent when under the influence of the drug. Consequently, the State pursued evidence both of the appellant's historic use of methamphetamine, and his alleged use of the drug on the day of the killing.
[¶7] It was not contested that the appellant used marijuana during the afternoon of the shooting. In addition to eye-witness testimony, preliminary tests of the appellant's blood and urine yielded ―presumptive positive‖ results for the presence of marijuana. The blood test was also presumptive positive for the presence of amphetamine, but the urine test was negative in that regard.*fn1 Confirmation testing of both blood and urine by AIT Laboratories in Indiana produced negative results for amphetamine in both the blood and urine.
[¶8] The appellant's pretrial attempt to prevent introduction of his alleged methamphetamine use took the form of a demand for notice of the State's intent to introduce uncharged misconduct evidence under W.R.E. 404(b), which motion was heard on October 9 and 11, 2007. After the hearing, the district court issued a decision letter and an order allowing the State to introduce the marijuana testimony and the marijuana test results, but denying admission of the presumptive positive blood test results for amphetamine.
[¶9] At a subsequent pretrial hearing on March 24, 2008, defense counsel informed the district court that he had just learned from the State that two new witnesses-Joseph Cheek and Theodore Sauls-would be called by the State to testify that the appellant had admitted to them that he was using methamphetamine on the day of the killing. After repeating the intent of the decision letter and order governing the methamphetamine evidence mentioned above (see supra ¶ 8), the district court told defense counsel to ―bring it up just as quickly as you can‖ if a hearing was necessary regarding the new witnesses.
[¶10] On April 10, 2008, the State filed an amended pretrial memorandum adding Theodore Sauls to its witness list. Eighteen days later, a similar document added Michael Evans, ―CEO of Toxicology‖ for AIT Laboratories. The appellant responded with three motions in limine, filed on the first day of trial, seeking to preclude the testimony of Cheek, Sauls, and Evans. Noting that Cheek and Sauls would testify about the appellant's supposed admission to using methamphetamine, and that Evans would testify, among other things, that the State's delay in sending the blood sample to AIT may have caused the negative test results to be invalid, the appellant's primary complaint was that, based upon the district court's decision letter and order, the appellant had prepared for trial under the assumption that the issue of alleged methamphetamine use would not be raised, and need not be defended.
[¶11] The trial began without any resolution of the defense motions. During the State's opening statement, the prosecutor said the following:
[The appellant] also gave a statement to his cellmate when he was incarcerated in Carbon County Jail. And his cellmate, who is in jail for a reason -- and we've gone over that a little bit in voir dire -- will testify that the [appellant] indicated that he had indeed killed Mr. Voss, and the reason for it was he was coming down from drugs. That is the testimony he will give you. . . .
Defense counsel immediately moved for a mistrial. The motion was heard at the beginning of the second day of trial. Defense counsel argued first that, as a result of the district court's earlier rulings, he had prepared for trial under the belief that no methamphetamine evidence would be admitted. Second, he argued that he had prepared for trial under the belief that, even if Sauls' and Cheek's allegations somehow got into evidence, he could impeach their testimony with the negative AIT test results. Now, at the eleventh hour, the State intended to call Evans to undermine his own laboratory's reports, thereby destroying those reports' impeachment value. The State countered with the contention that its proposed evidence was not the ―old‖ blood and urine test results that the court had earlier disallowed, but was ―new‖ evidence provided directly by the appellant as a statement against interest.*fn2
[¶12] Without giving any reason for its ruling, the district court denied the mistrial motion, allowed the admission of Sauls' and Cheek's testimony, disallowed any evidence of the presumptive positive blood test for amphetamine, and allowed defense counsel to impeach Sauls and Cheek with Evans' testimony. The appellant characterizes this ruling as the reversal of W.R.E. 404(b) rulings that had been in effect for six months.
[¶13] Cheek did not testify at trial, but Sauls was called as a witness in the State's case-in-chief. Sauls testified that he had been convicted of reckless endangerment for brandishing a knife during a fight with his brother, that he had been incarcerated in the Carbon County jail, part of the time with the appellant as his cellmate, and that the appellant had told him about shooting Voss. The gravamen of Sauls' testimony, as that testimony was originally set forth in the official court reporter's transcript, was as follows:
He told me, and he said that he had shot his friend, and that he didn't mean to do it. He don't know why he did it, but he was all drugged up at the time, and those were his exact words that came out of it his mouth so -- I mean, those came from his mouth.
[¶14] As its final witness, the State called Dr. Evans, AIT Laboratories' ―CEO of Toxicology.‖ Evans testified as to the effect of methamphetamine on the human body and mind, both during use and during withdrawal from use, and testified as to the detectability of methamphetamine in the human body through chemical analysis. The appellant twice moved for a mistrial during Evans' testimony, on the ground that the ...