Gabriel R. DRENNEN, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
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Representing Appellant: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
KITE, Chief Justice.
[¶ 1] After Gabriel R. Drennen appealed his convictions for first-degree murder and aggravated assault and battery, we remanded for a hearing on his assertion that defense counsel was ineffective. The district court found his trial counsels' performance was deficient because they failed to present expert testimony in support of his self-defense claims. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance.
[¶ 2] Mr. Drennen argues on appeal that his convictions should be reversed because his trial was riddled with instances of prosecutorial misconduct, the district court improperly instructed the jury and he was prejudiced by his trial counsels' deficient performance. We conclude the prosecutors committed misconduct and Mr. Drennen is entitled to reversal of his convictions. Because we are reversing for a new trial, we address Mr. Drennen's claims regarding the jury instructions and find they are wanting in certain respects. We will not analyze the ineffective assistance of counsel arguments with any degree of specificity because we assume any deficiencies will be corrected on remand.
[¶ 3] The issues in this case are:
1. Did the prosecutor engage in misconduct requiring the reversal of Mr. Drennen's convictions?
2. Did the district court erroneously instruct the jury on self-defense with respect to the homicide charges?
3. Did the district court erroneously instruct the jury on self-defense with respect to the aggravated assault and battery charge?
4. Did the district court erroneously instruct the jury on the elements of first-degree murder, second-degree murder, and manslaughter?
5. Did the district court err in ruling on Mr. Drennen's claim of ineffective assistance of counsel?
[¶ 4] On May 2, 2010, Leroy Hoster was moving out of a mobile home owned by Mr. Drennen. Mr. Hoster had a Bronco parked near the mobile home and he needed to repair a tire before he could move it. His tools were in a storage unit also provided by Mr. Drennen, so Mr. Hoster's friend, Michael Adams, drove him to Mr. Drennen's home seeking access to the storage unit. After a short conversation with Mr. Drennen, and apparently without gaining access to the storage unit, Mr. Hoster returned to Mr. Adams' car. As Mr. Hoster was leaving, Mr. Drennen told him to move the Bronco, to which Mr. Hoster replied, " That's what I'm trying to do."
[¶ 5] Mr. Adams and Mr. Hoster drove back to the mobile home and parked in front of it. Mr. Hoster was upset about not being able to get his tools, and Mr. Adams tried to calm him down. Mr. Drennen followed them
to the mobile home in his truck, parked down the road and began walking toward Mr. Hoster and Mr. Adams. He was carrying " No Trespassing" signs and packing tape. Mr. Drennen also had a gun in a holster on his hip and an activated audio recorder in his pocket.
[¶ 6] As Mr. Drennen walked toward the mobile home, he said to the other two men, " You push me around, I push you around." Mr. Hoster threw his jacket to the ground and walked toward Mr. Drennen, insulting him. Mr. Drennen responded, " No trespassing." Mr. Hoster then told Mr. Drennen to " get the f* * k out of here," grabbed him, and threw him from the porch and over a three to four foot high fence into the yard. According to Mr. Drennen, Mr. Hoster also said, " I'll kill you, you son-of-a-b* *ch!" Mr. Drennen landed on his back and tried to scoot backward when Mr. Hoster started coming over the fence. Mr. Drennen yelled " hey, hey, hey!" but Mr. Hoster kept coming towards him and said, " Shoot me!" Mr. Drennen fired five shots, hitting Mr. Hoster multiple times.
[¶ 7] After Mr. Drennen stopped shooting, he pointed the gun toward Mr. Adams, who moved behind the Bronco. Mr. Drennen put down his gun and called 911. Mr. Adams also called 911, and both men attempted to render emergency aid to Mr. Hoster. When the police and emergency responders arrived, Mr. Drennen was arrested and Mr. Hoster was taken to the hospital where he died from his wounds.
[¶ 8] The State charged Mr. Drennen with first-degree murder, second-degree murder and aggravated assault and battery. At the trial, Mr. Drennen argued that he shot Mr. Hoster and pointed the gun at Mr. Adams in self-defense. The jury found Mr. Drennen guilty of first-degree murder and aggravated assault and battery. The district court entered judgment on the jury's verdict and sentenced Mr. Drennen to a term of life in prison for the murder conviction and eight to ten years in prison for the aggravated assault and battery.
[¶ 9] Mr. Drennen appealed both convictions and, pursuant to W.R.A.P. 21, requested remand for a hearing on his claim that his trial counsel was ineffective. We granted his request, and the district court concluded his trial counsel performed deficiently because they failed to call expert witnesses to substantiate his claim of self-defense. The court concluded, however, that Mr. Drennen was not prejudiced by the deficient performance. We now consider his claims on appeal.
A. Prosecutorial Misconduct
[¶ 10] Mr. Drennen asserts the prosecutors misled the jury regarding Wyoming's law of self-defense and their actions amounted to prosecutorial misconduct. Our standard of review for a claim of prosecutorial misconduct requires us to refer to the entire trial record. We determine whether the prosecutors' conduct prejudiced the defendant's case to the degree he was deprived of a fair trial. Likewise, the propriety of any comments made by the prosecutors during closing argument is measured in the context of the entire argument. Strange v. State, 2008 WY 132, ¶ 4, 195 P.3d 1041, 1043 (Wyo.2008).
[¶ 11] Mr. Drennen did not object to any of the prosecutors' statements at the time of trial; therefore, we review for plain error. Id.
To demonstrate plain error, [the appellant] " must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715,  (Wyo.2001). Reversal of a conviction on the basis of prosecutorial misconduct, which was not challenged in the trial court, is appropriate only when there is a " substantial risk of a miscarriage of justice."
Capshaw [ v. State ], 10 P.3d , 567 [ (Wyo.2000) ] (quoting Dice v. State, 825 P.2d 379, 384 (Wyo.1992)).
Id., quoting Burton v. State, 2002 WY 71, ¶ 13, 46 P.3d 309, 313-14 (Wyo.2002).
[¶ 12] The prosecutors' statements are found in the trial transcripts, satisfying the first part of the plain error analysis. The prosecution began its opening statement with the following:
Ladies and gentlemen of the jury, over the next few days, all of the evidence you will hear will revolve around the events that you just heard on this recording as we introduce our case to you.
I submit to you that no matter what the scenario, it really doesn't matter whether you're a fan of old western movies or modern police officer movies or perhaps even sci-fi, there's one general rule that shines through no matter what the scenario is: you do not shoot the unarmed man. You don't do it.
The prosecutor went on to describe the facts he anticipated would be presented during the trial and completed his opening statement by saying:
And we believe that you'll be able to find that on May 2nd, 2010, in Fremont County, Wyoming, the defendant, Gabriel Drennen, purposely shot Leroy Hoster with his .9 millimeter Baretta four times, killing him with premeditation and malice; and that, further, he had no legal justification to do so. None. You see, the victim wasn't armed. He never was armed. And you just do not shoot the unarmed man. Thank you.
The prosecutor followed suit in his closing argument, ending with: " We respectfully request that you go to deliberations and that you return with a verdict of guilty, because you see: in the state of Wyoming, there is a law against shooting an unarmed man." The other prosecutor focused on that point one more time in rebuttal:
Counsel said why, if he wanted to kill someone, why would he do it in broad daylight and, you know, why would he do it under these circumstances? Because he didn't know the law. That's why he did it. Two reasons. He didn't know the law. He thinks he's justified. He thinks he can shoot and kill someone even though they are unarmed.
[¶ 13] In general, the right to defend oneself in Wyoming, together with the amount and type of force used, depends upon what is reasonably necessary under the circumstances. " It is for the jury to determine whether a defendant reasonably perceived a threat of immediate bodily injury under the circumstances and whether the defendant defended himself in a reasonable manner. Thus, the jury must evaluate the totality of the circumstances and evaluate all of the defendant's options in protecting himself from such a perceived threat of harm." Baier v. State, 891 P.2d 754, 758 (Wyo.1995); see also Evenson v. State, 2008 WY 24, ¶ 14, 177 P.3d 819, 825 (Wyo.2008). " Under this formulation, the presence or absence of a weapon is relevant as part of the totality of the circumstances, but it is not determinative." Evenson, ¶ 14, 177 P.3d at 825. The prosecutors' assertions that Wyoming law prohibits shooting an unarmed man were inaccurate, and the record leaves no doubt that the prosecutors misinformed the jury in that regard.
[¶ 14] The third prong of the plain error standard was also satisfied in this case— the prosecutors' violation of the clear and unequivocal rule of law affected Mr. Drennen's substantial rights. Strange, ¶ 4, 195 P.3d at 1043. " The right with which we are concerned is the fundamental right to a fair trial, free from tainted argument." Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978). In many instances, the prejudice from incorrect statements of law made by prosecutors may be diluted by correct statements of the law in jury instructions, subsequent arguments by the prosecution, or by arguments made by defense counsel. SeeEvenson, ¶ 16, 177 P.3d at 825. However, " [w]here a prosecutor repeatedly misstates ...