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Shull v. State

Supreme Court of Wyoming

February 9, 2017

THE STATE OF WYOMING, Appellee (Plaintiff).

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

          Representing Appellant Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming

          Representing Appellee Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Philip M. Donoho, Assistant Attorney General. Argument by Mr. Donoho.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] Appellant Jeremiah Shull used a knife to kill a man he found in bed with his wife, and a jury convicted him of first degree murder. We reverse and remand for a new trial due to instructional error.


         [¶2] Shull raises four issues, all of which relate to his position at trial that the killing was not premeditated murder, but rather the lesser included offense of voluntary manslaughter.[1] We rearrange and, for the sake of clarity, slightly reword those issues as follows:

I. Did the jury instructions create reversible error as to the lesser included offense of voluntary manslaughter because they instructed the jury that the State had to prove beyond a reasonable doubt that Shull acted in a sudden heat of passion, rather than that it had to prove that he did not act in a sudden heat of passion beyond a reasonable doubt?
II. Did the prosecutor's objection and the district court's ruling on a portion of Shull's closing argument, and the prosecutor's subsequent rebuttal argument, improperly advise the jury that if it found Shull intended to kill, it could not find that he committed voluntary manslaughter?
III. Did an instruction defining the term "malice" for purposes of first-degree murder create reversible error by virtue of its failure to convey that a malicious act had to be one performed with "hatred, ill will, or hostility?"
IV. Did the district court err by allowing the introduction of a portion of a recorded telephone call to police in which the caller, Shull's father, predicted Shull's intentions based on a conversation the two had?


         [¶3] This case presents facts from which both parties argued inferences as to whether Shull was guilty of first degree murder, second degree murder, or manslaughter. We will therefore summarize the pertinent evidence to demonstrate the competing versions the jury had to sort out.

         [¶4] Shull and his wife, Julie Cordell-Shull (Cordell), [2] wed in February of 2014 after dating for approximately one month. They lived in Shull's house in Riverton, Wyoming for about three tempestuous months, until he was arrested on a charge unrelated to their relationship. At that point, Cordell moved to Denver with an ex-boyfriend. In late July of 2014, she returned to Wyoming and began living with her friend Jennifer Gamble and Gamble's children and boyfriend in a home located five to seven miles north of Riverton.

         [¶5] The two reunited when Shull attended a party at that home in early August and then moved in there with Cordell for a little more than two months, returning to his own house only to retrieve clothes and various other belongings. However, their relationship again became volatile and argumentative, and on October 15, 2014, Cordell and Gamble insisted that Shull move out of the home. Around this time, Cordell let Shull know that she was seeing another man.

         [¶6] Two days after Shull moved out, while Cordell was at Shull's house to get cigarettes, she received a phone call or a text message from that other man, Jake Willenbrecht. Shull therefore took her cell phone and smashed it. They had another confrontation the next day, Saturday, October 18, at Gamble's home. Cordell arrived with Willenbrecht in her vehicle shortly after Gamble took Shull to the house to pick up some belongings left behind when he moved.[3] Shull tried to make up with Cordell, but the couple soon began to argue loudly in the driveway. Cordell told Shull that she wanted a divorce and did not want to be with him.

         [¶7] Finally, Gamble put an end to the altercation. But Shull wasn't done, and he went to the vehicle where Willenbrecht was sitting and told him that he didn't want to see him again. Shull also told Willenbrecht that the only reason he did not fight him on the spot was out of respect for their presence at the Gamble residence. Although all participants soon went their own ways, Shull was left visibly distraught almost to the point of physical illness by the encounter, according to Gamble.

         [¶8] Later that evening, Cordell and Willenbrecht went to a bar for a time, and then returned to Gamble's house, stopping along the way at Shull's home so she could take his iPad, without his permission, to serve as a substitute for her broken cell phone until she could replace it. The evidence indicated that Shull was quite attached to the iPad, and used it to watch movies, etc. Cordell and Willenbrecht drank for a while longer after reaching Gamble's place, and Willenbrecht, who was hesitant to drive home after drinking, went to sleep in Cordell's bed around midnight. She stayed up for another three hours and finally retired in the same bed between 3:30 and 4:00 a.m. on October 19, 2014.

         [¶9] That same evening, Shull and Thomas Tynsky, an old friend who was living with Shull, planned to watch a movie at Shull's house, but they eventually went drinking for several hours at another friend's home instead. At one point, another friend overheard him talking with Tynsky about going on "his next mission, " and heard Tynsky try to discourage him from whatever he was suggesting.

         [¶10] After getting extremely drunk, Tynksky and Shull returned to Shull's house to watch the movie, but decided to take a walk to take Shull's mind off his earlier encounter with his wife and Willenbrecht. Tynsky lasted about a block and a half before he got cold and headed back to the house. Shull continued to walk north, toward the Gamble residence on State Highway 789 where Cordell was. There is no evidence that he knew Willenbrecht was with Cordell at the Gamble house, although he may have suspected as much.

         [¶11] As Shull[4] later explained to DCI agent Brady Patrick:

Every step I took, I got a little bit more angry; angry at the fact my wife cheated on me, angry at the fact she lied to me, angry at the fact that she'd been treating me like absolute shit. And the only thing that I ever did was tell her, "Hey, you know what? I want to work on things because I love you to death." And at there - out there, around 6:45, I walked the entire way out there, and it didn't help my anger at all.

         [¶12] On the other hand, Shull also told law enforcement that he planned to crawl into bed with his wife without waking her. He said he intended to try to talk with her in the morning to try to work things out.

         [¶13] Shull's use of alcohol violated a condition of probation on misdemeanor convictions, [5] and he claimed that he therefore hid when he saw headlights to avoid detection. Of course, this conduct could also suggest a stealthy approach to the Gamble home with the intent to do Cordell or someone else harm.

         [¶14] At approximately 3:16 a.m. Shull phoned his father, who was in Denver at the time. Because he initially missed the call, Shull's father returned it a minute later. Shull said his father could have his house and Jeep because he was probably going to jail for the rest of his life. At 3:33 a.m. his father telephoned the Fremont County emergency dispatcher to convey that information and his fear that Shull was alluding to committing a serious crime.

         [¶15] Sometime between 4:30 and 5:00 a.m., Shull arrived at Gamble's house and went to an exterior door that led directly into Cordell's room. He discovered that she had uncharacteristically locked that door, and so he went to a kitchen window which he knew did not have a functioning lock. He climbed through the window and walked directly to his wife's room. In doing so, he passed through the kitchen and past an assortment of kitchen knives without taking one, which is arguably somewhat supportive of his claim to have acted on a sudden heat of passion. He then entered Cordell's room, shutting and locking the door behind him. He claimed that he first learned that Willenbrecht was in the house and in bed with Cordell only after entering the room and closing the door. He told investigators that he "lost it" at that point, and that he was "blinded by rage."

         [¶16] Shull pulled out a folding, lock-back Gerber knife having approximately a three-inch blade and an overall length of seven and five-eighths inches, which he habitually carried. Shull grasped the open knife in his fist, with the blade pointed downward, and slipped his pinky finger into a ring built into the knife at the junction of the blade and handle to ensure a good, non-slip grip. It could be argued that this tended to show that he did not act on a sudden heat of passion, or on the other hand, that he simply had a habitual way of grasping a knife he used often.

         [¶17] Within two seconds of entering the dimly lit room, he began repeatedly stabbing the sleeping Willenbrecht. Cordell and Willenbrecht awoke and started struggling with him, and Cordell also received a significant stab wound. Finally, Shull slit Willenbrecht's throat, killing him, choked Cordell into unconsciousness, and then escaped out the exterior door to the room while Gamble and her boyfriend frantically pounded on the locked interior door. Despite his efforts to avoid being seen as he fled back to Riverton, authorities located and arrested Shull around 8:00 that morning. He had the knife in his possession, and his clothing had blood on it that was later linked to Willenbrecht.

         [¶18] The State ultimately filed an amended information charging Shull with the first degree murder of Willenbrecht, aggravated assault and battery of Cordell, and strangulation of a household member (Cordell). The case proceeded to trial.

         [¶19] As will be discussed below, Shull admitted killing Willenbrecht intentionally and without a privilege to do so, such as self-defense. The key issue was whether he did so after premeditation and with malice (first degree murder), with malice but without premeditation (second degree murder), or in a sudden heat of passion (voluntary manslaughter). The decision had significant consequences. A conviction of first degree murder in a case in which the death penalty is not sought is punishable by imprisonment for life as a matter of law or life without the possibility of parole. Wyo. Stat. Ann. § 6-2-101(b). A conviction of second degree murder carries a minimum penalty of twenty years imprisonment and a maximum penalty of life imprisonment as a matter of law. Wyo. Stat. Ann. § 6-2-104. A conviction of voluntary manslaughter carries no minimum penalty and a maximum penalty of twenty years imprisonment. Wyo. Stat. Ann. § 6-2-105(b).

         [¶20] The jury found Shull guilty of first degree murder, aggravated assault and battery, and strangulation of a household member. The district court sentenced him to life as a matter of law for the murder, eight to ten years for aggravated assault and battery, and four to five years for strangulation of a household member. He only appealed the first degree murder conviction.


         1. Jury Instructions on Sudden Heat of Passion and Burden of Proof

         a. Instructions Given

         [¶21] We will begin our consideration of this issue by examining the instructions given and the proceedings relating to them. In a motion in limine filed before trial, defense counsel[6] argued that the term "malice" as it is used in Wyoming's first and second degree murder[7] statutes should include the following language because of the interplay between those offenses and voluntary manslaughter, which he intended to present as a lesser included offense:

The term " malice" means that the act constituting the offense was done recklessly under circumstances manifesting an extreme indifference to the value of human life, that the act was done without legal justification or excuse, and that the act was not done upon a sudden heat of passion. [Emphasis added.]

         [¶22] The emphasized language does not appear in Wyoming Criminal Pattern Jury Instruction 21.01D2, on which the rest of the instruction appears to have been based. The motion was heard immediately before trial began. The State objected to the instruction because it believed it to be improper to put the defendant's theory of defense into a substantive instruction. The prosecutor remarked that "I do not have to prove that he did not act in a heat of passion. I have to prove that he acted with malice." The Court held that sudden heat of passion was an element of voluntary manslaughter, and that the proposed language was therefore improper.

         [¶23] The issue arose again at the formal instruction conference, and defense counsel objected to the State's proposed Instruction 15, which defined premeditated malice for the first degree murder charge. He requested that the definition of malice reflect that a killing under a sudden heat of passion was not done with malice. The Court noted that the proposed malice instruction was the criminal pattern, and declined to add the language.

         [¶24] The State objected to instructing the jury on the lesser-included offense of voluntary manslaughter, but the Court did so over that objection. The instructions on voluntary manslaughter therefore read as follows:

         Instruction No. 20

         Pertinent portions of the Wyoming statutes provide as follows:

§ 6-2-105. Manslaughter;
(a) A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied . . .
. . . Voluntarily, upon a sudden heat of passion.

         Instruction No. 21

The elements of the lesser included offense of Voluntary Manslaughter in this case are:
1. On or about October 19, 2014,
2. in Fremont County, Wyoming,
3. the Defendant, Jeremiah Ethan Samuel Shull (Y.O.B. 1992),
4. voluntarily,
5. upon a sudden heat of passion,
6. killed Jacob Nash Willenbrecht.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

         Instruction No. 22

As used in Instruction No. 21 "Voluntarily" means that the act which caused death was done intentionally. It does not require that the act was done with ...

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