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Brodey A. Burnett v. the State of Wyoming

December 28, 2011

BRODEY A. BURNETT, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge

The opinion of the court was delivered by: Burke, Justice.

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

BURKE, J., delivers the opinion of the Court; VOIGT, J., files a special concurrence.

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] Brodey A. Burnett was convicted on one count of attempted second degree murder and two counts of aggravated assault and battery. The trial court merged all three counts for purposes of sentencing, and sentenced Mr. Burnett to a prison term of twenty to thirty years. Mr. Burnett appeals his conviction, focusing mainly on jury instructions he claims were improper. We will affirm.

ISSUES

[¶2] Mr. Burnett presents three issues, which we have reworded slightly:

1. Was the jury properly instructed on the elements of attempted second degree murder?

2. Was the jury properly instructed on the definition of "recklessly," one of the elements of aggravated assault and battery?

3. Does the fact that the elements of attempted second degree murder and the elements of aggravated assault and battery are identical deny Mr. Burnett due process of law?

FACTS

[¶3] On December 25, 2009, Willie Wheeler and his younger brother, Beau, spent the day snowboarding. As they returned home to Lander that evening, Willie*fn1 received a phone call from Amber Mefferd, whom he described as a "good friend." She invited Willie and Beau to join her and Alyssa Jurado at a party at another friend's home in Riverton. They agreed, and met Ms. Mefferd and Ms. Jurado at the party at about 10 p.m. Because Willie had plans for the next day, the four decided to leave the party around midnight. They were going to leave Ms. Jurado's car at her mother's home in Riverton, then all of them would take Willie's SUV to his home in Lander.

[¶4] As they left the party, they saw Mr. Burnett standing near Ms. Jurado's car. Willie recognized Mr. Burnett from a previous encounter. According to Willie's testimony, Mr. Burnett "showed up" at a party at Willie's home a few months earlier, and "Problems did arise." Beau also testified to a previous "confrontation with Mr. Burnett." Nevertheless, Mr. Burnett asked them for a ride, saying that he wanted to "party out" with them at Willie's home in Lander. He was told there was not going to be a party at Willie's home because they were all going home to get some sleep. But Mr. Burnett was "insistent," and Beau eventually agreed to give him a ride as far as Ms. Jurado's mother's home. Mr. Burnett lived nearby, and Beau told him he could walk home from there. They left, with Willie and Ms. Mefferd in Willie's SUV, and Beau, Ms. Jurado, and Mr. Burnett in Ms. Jurado's car.

[¶5] Beau testified that, during the ride to Ms. Jurado's mother's home, Mr. Burnett "was saying stuff about my brother and wanting to fight him and all of that." According to Ms. Jurado, Mr. Burnett was "yelling around. He was just yelling." They arrived at Ms. Jurado's mother's house, and Beau parked Ms. Jurado's car at the curb. Willie stopped his SUV nearby. Mr. Burnett exited Ms. Jurado's car and approached Willie's vehicle, asking Willie again for a ride to Lander to party. Willie again told Mr. Burnett that they were not going to party, and refused to give him a ride. Mr. Burnett responded by yelling at Willie and "pounding" on the windows of the SUV. Apparently referring to their earlier encounter, Mr. Burnett asserted that "this stuff between us isn't over," and said it was time to finish it. Willie responded, "Okay, let's settle it right here," and stepped out of his SUV. Preparing to fight with Mr. Burnett, Willie took off his jacket and handed it to Beau, who was standing nearby. Willie provided this testimony about the incident that followed:

Q [by the Prosecutor] After you tossed your jacket to Beau, what did you do?

A I started approaching Mr. Burnett.

Q And what happened?

A He pulled a knife.

Q He pulled a knife from where?

A Out of his front right pocket. . . .

Q What did you do when you saw that?

A I put my hands up and told Mr. Burnett, "Hey, we don't need to do anything stupid tonight. You don't want to ruin your life, you don't want to ruin mine. Just call it good and we'll go from here." . ..

Q Did you have anything in your hands?

A No, ma'am.

Q Where was Beau at that point?

A He was still at the back of the truck by the back doors, still about four, five [feet] away from me.

Q What did you do at that point after you told him you didn't want any trouble? What happened next?

A I went to . . . get a flashlight out of the back of my truck.

Q Why were you looking for a flashlight at that point?

A To defend myself. . . .

Q As you were reaching into that vehicle or looking for the flashlight that you described, what happened next?

A One of the girls, I don't know which one it was, screamed, and I felt a large pound on my back. I didn't know what it ...


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