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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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
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. We rearrange and,
for the sake of clarity, slightly reword those issues as
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
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
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?
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.
Shull and his wife, Julie Cordell-Shull (Cordell),
 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.
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.
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. 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.
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.
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.
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.
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.
As Shull later explained to DCI agent
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.
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.
Shull's use of alcohol violated a condition of probation
on misdemeanor convictions,  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.
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.
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."
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.
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.
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.
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. §
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.
Jury Instructions on Sudden Heat of Passion and Burden of
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 argued that the term
"malice" as it is used in Wyoming's first and
second degree murder 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.]
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
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.
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:
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.
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),
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.
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 ...