Appeal from the District Court of Johnson County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Leah D. Benjamin was convicted of second degree murder for the shooting death of her estranged husband. She appeals that conviction. We will affirm.
[¶2] Ms. Benjamin presents four issues:
1. Did the trial court err in not dismissing juror Blaney?
2. Did the trial court err in refusing Appellant's proposed jury instructions G and H?
3. Did the trial court err in denying Appellant's post-trial motion for judgment of acquittal?
4. Did reversible prosecutorial misconduct occur?
[¶3] On Sunday, May 3, 2009, Ms. Benjamin shot and killed the victim, Donald Benjamin, at her home in Buffalo, Wyoming. The relevant events of that day began at 9:41 a.m., when Ms. Benjamin sent a text message to her husband, from whom she was separated and was soon to be divorced, asking whether he was coming to pick up their daughter, K.B., to take her fishing. Ms. Benjamin knew that K.B. was at a friend's house, but proceeded to leave numerous voicemails and text messages for Mr. Benjamin stating that K.B. was "sitting here waiting for you," but telling him not to call K.B. because she did not have her phone. When Mr. Benjamin called to say he was on his way, Ms. Benjamin told him that K.B. no longer wanted to go fishing. Mr. Benjamin arrived a few minutes after this conversation, and died approximately an hour later.
[¶4] In their briefs, Ms. Benjamin and the State present starkly contrasting versions of the Benjamin relationship. Ms. Benjamin portrays herself as the victim of domestic abuse, while the State portrays her as more the aggressor than the victim. The long record of this eight-day trial includes evidence to support both versions. Most of the details are not relevant to this appeal, however, and will be presented here in summary fashion.
[¶5] Ms. Benjamin married Mr. Benjamin in 1999. She had four children from previous relationships, and he had three. They also had a daughter together. The family lived in Hulett, Wyoming, until 2005, when the couple separated and Mr. Benjamin moved to Buffalo, Wyoming. Ms. Benjamin moved to Buffalo in 2006, apparently hoping to reconcile with Mr. Benjamin, although the two continued to live separately. In February of 2009, Mr. Benjamin filed for divorce. Although Ms. Benjamin had signed the divorce settlement agreement, the divorce had not been finalized by the time of Mr. Benjamin's death. Several witnesses agreed that Ms. Benjamin was extremely upset about the pending divorce.
[¶6] On Saturday, May 2, 2009, the Benjamin's daughter arranged to spend the weekend with a friend in Buffalo. Although Ms. Benjamin knew their daughter would not be home, she began contacting Mr. Benjamin, telling him their daughter would be waiting at home on Sunday for him to take her fishing. During Saturday afternoon and Sunday morning, Ms. Benjamin made twenty-one telephone calls to Mr. Benjamin, sent ten text messages, and left five voicemail messages. At 10:17 a.m. on Sunday, Ms. Benjamin left the following message:
Don, [K.B. is] sitting here waiting for you. If you don't want to take her fishing at least let us know and I'll go take her to do something OK[?] I told her you were going to take her cause you guys needed time together too OK? I tried to tell you that last night to have you call me but you didn't . . . I don't know whatever.
[¶7] At about 10:30 on Sunday morning, Mr. Benjamin telephoned Ms. Benjamin to confirm that he was on his way to her house to pick up their daughter. Ms. Benjamin responded that their daughter no longer wanted to go fishing, expecting that Mr. Benjamin would "turn around and leave." However, Mr. Benjamin arrived at Ms. Benjamin's house a few minutes later. According to Ms. Benjamin, the two sat in the living room and talked. The conversation started calmly, but Mr. Benjamin became increasingly angry, and after about an hour, Ms. Benjamin went into the bathroom to get away from him.
[¶8] Ms. Benjamin's testimony was that as she left the bathroom, Mr. Benjamin was standing in the bedroom, near the bathroom door. He appeared angry, and approached her. After that, she explained, "[e]verything happened so fast" that she could not recall the exact sequence of events. She recalled that Mr. Benjamin shoved her into the shower door. She hit the shower door with her elbow and, she said, broke the glass door.
[¶9] Ms. Benjamin testified that she ran from the bathroom into her bedroom and grabbed her pistol from under her bed. Holding the pistol, she told Mr. Benjamin to leave, and he cursed at her. Then he "lunged" at her and grabbed at the pistol. She shot. Although she could remember shooting only once, she acknowledged that Mr. Benjamin was shot three times. The next thing she recalled was lying on the floor near the bed with Mr. Benjamin on top of her. She threw the pistol behind the nightstand, pushed Mr. Benjamin off of her, and got up from the floor.
[¶10] Unknown to Ms. Benjamin, her eighteen-year-old son was also in the house, and he came into the bedroom as Ms. Benjamin was getting up from the floor. Her son helped her up and into the kitchen, then checked on Mr. Benjamin and determined that he was dead. Ms. Benjamin gave her son several thousand dollars she had been saving, and told him to pick up his sister in Buffalo and take her to a relative's home in Gillette "to be safe." After he left, Ms. Benjamin talked on the telephone with some of her children and other people. She sent text messages to her children.*fn1 She cleaned up glass from the broken shower door. A text message from Ms. Benjamin to her son indicates that, at 5:00 p.m. that evening, she went to a movie in town. Eventually, at the urging of her sons, she drove herself into town and went to the police station.
[¶11] She turned herself in at about 4:30 in the morning on Monday, May 4, approximately sixteen hours after shooting Mr. Benjamin. The police officer recorded the interview. In the recording, Ms. Benjamin sounded very emotional and, occasionally, nearly incoherent. She eventually told the police officer that Mr. Benjamin was dead at her home, and that she had shot him around noon the previous day. Because Ms. Benjamin lived outside the town limits, the policeman dispatched officers from the Johnson County Sheriff's department to her home. They found Mr. Benjamin on the floor of Ms. Benjamin's bedroom between the bed and the wall, and confirmed that he was dead.
[¶12] The officers found a relatively small amount of blood at the scene given the gravity of Mr. Benjamin's wounds. There was a small amount of blood on a floor heating vent, on some boxes against the wall, and on a mirror. Upon further inspection, the officers found that the boxes had been deliberately moved and stacked to cover up a small amount of blood on the wall. The officers also found a bloody towel on the bed and later found fifteen damp, freshly washed towels in the washing machine. They also found fourteen dry towels in the dryer.
[¶13] Ms. Benjamin was charged with first degree murder. Based on the evidence summarized above, the State argued at trial that Ms. Benjamin had purposely lured Mr. Benjamin to her home under the false pretense that their daughter was waiting for him. It argued that this was a premeditated, purposeful, and malicious effort to harm Mr. Benjamin.
[¶14] The State also presented evidence that contradicted Ms. Benjamin's version of the shooting. There was, for example, forensic evidence that there was no gun powder residue on Mr. Benjamin's hands or clothing, indicating that he had been shot at a distance of several feet, not while grabbing the pistol and trying to turn it on her as she had testified. There was also forensic evidence that the shower door was shattered by a bullet, contrary to Ms. Benjamin's testimony that it was broken by her elbow.
[¶15] Anticipating Ms. Benjamin's claim that she was a victim of domestic abuse, the State offered testimony indicating that Ms. Benjamin was actually the aggressor in the relationship. Witnesses had observed her initiating confrontations with Mr. Benjamin, and slapping or punching him. One witness testified that Ms. Benjamin "was never afraid to confront him on anything. She was never afraid to be around him." Other witnesses testified that Ms. Benjamin had, on at least two occasions, initiated physical confrontations with a woman Mr. Benjamin had been dating.
[¶16] Several witnesses also testified that Ms. Benjamin telephoned Mr. Benjamin with unusual frequency. One acquaintance testified that Ms. Benjamin "called him and called him and called him all of the time," and a former roommate of Mr. Benjamin estimated that she sometimes called up to thirty times per day. Evidence also showed that Ms. Benjamin had been recording many of her telephone conversations with Mr. Benjamin, although her recording device recorded only his side of the conversation, not hers. Based on these arguments and this evidence, the State asked the jury to convict Ms. Benjamin of first degree murder.
[¶17] Ms. Benjamin never denied that she had shot Mr. Benjamin, but asserted that she had done so in self-defense. She admitted that she misled Mr. Benjamin about their daughter waiting at home to go fishing with him. She explained that she never expected him to show up, however, and was calling only to "make him feel guilty." According to her testimony, she got the pistol to convince Mr. Benjamin to leave, and shot only after he grabbed the pistol and tried to turn it on her.
[¶18] In further support of her self-defense claim, a psychologist testified that Ms. Benjamin was diagnosed as suffering from post-traumatic stress disorder, particularly from a subset of that disorder known as Battered Woman's Syndrome.*fn2
Ms. Benjamin testified that Mr. Benjamin had hit her on several occasions and frequently verbally abused her. Witnesses for both the defense and the prosecution bolstered her testimony with observations of many arguments, fights, and confrontations between the Benjamins. Several witnesses had seen Ms. Benjamin at various times with black eyes and bruises. There was also testimony that Mr. Benjamin drank heavily and frequently, and that he could become loud, mean, and violent when he was drinking.
[¶19] The jury acquitted Ms. Benjamin on the charge of first degree murder, but also rejected her claim of self-defense, finding her guilty of the lesser included offense of second degree murder. The district court sentenced her to twenty to thirty years in prison. Ms. Benjamin challenges her conviction in this appeal.
Did the trial court err in not dismissing juror Blaney?
[¶20] During voir dire, a potential juror introduced herself as Karen Blaney. A Dr. Blaney was listed by the State as a possible witness to rebut the defense's expert witnesses. The district court pointed this out, and asked Ms. Blaney if they were related. Ms. Blaney said she was married to Dr. Blaney. She explained that he was a psychologist who had consulted with the prosecution, but said that he had never discussed the case with her. Asked by the prosecutor if she could still "be fair to both sides" despite her husband's involvement in the case, Ms. Blaney answered, "I don't often agree with Dr. Blaney, but no. I am a very independent person." Her answer may seem ambiguous when read from the transcript, but it is apparent in the context of the record that everyone understood Ms. Blaney to mean that she could be fair to both sides. No one asked her any more questions. Neither the defense nor the State moved to excuse Ms. Blaney from the jury for cause. Neither side exercised a peremptory challenge against Ms. Blaney, and she was seated on the jury.
[¶21] At the end of the day, and outside of the presence of the jury, the district court again raised the issue of Ms. Blaney's relationship to a listed witness.*fn3 Apparently the judge expressed some surprise that Ms. Benjamin had not moved to excuse Ms. Blaney from the jury. Defense counsel confirmed the decision not to challenge Ms. Blaney for cause, explaining to the district court that "we [the defense] kind of like her" as a juror.
[¶22] Dr. Blaney did not testify during the trial, but he was present when the prosecution cross-examined Dr. Finney, a psychologist who diagnosed Ms. Benjamin as suffering post traumatic stress disorder. Later, when the jury was not present, defense counsel ...