from the District Court of Fremont County The Honorable
Norman E. Young, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General.
Argument by Ms. Martens.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant, Terry L. Schmuck, appeals his conviction of
attempted second-degree murder. Mr. Schmuck claims that the
district court improperly instructed the jury regarding
sudden heat of passion, the definition of "malice"
in the context of first-degree murder, the definition of
"maliciously" in the context of second-degree
murder, an aggressor's right to use self-defense, and the
duty to retreat before asserting the right of self-defense.
Mr. Schmuck raises one issue: Did the district court's
failure to properly instruct the jury deprive Mr. Schmuck of
a fair trial? For clarity, we divide his issue into six
separate issues, restated as follows:
the district court err when it:
A. failed to instruct the jury that the State must prove
beyond a reasonable doubt the absence of a sudden heat of
passion in order for the jury to find Mr. Schmuck guilty of
first-degree or second-degree murder?
B. failed to instruct the jury that "malice" for
purposes of first-degree murder means the defendant acted
intentionally without legal justification or excuse and with
hatred, ill will, or hostility?
C. for the purposes of second-degree murder:
1. provided the jury with a definition of both
"malice" and "maliciously"?
2. failed to define "recklessly" or
"recklessly under circumstances manifesting an extreme
indifference to the value of human life"?
D. used the term "provokes" to instruct the jury on
an aggressor's right of self-defense?
E. instructed the jury that Mr. Schmuck had an absolute duty
to retreat before using deadly force?
the cumulative error of two or more improper jury
instructions deprive Mr. Schmuck of his right to a fair
Mr. Schmuck struck his wife, Cindy Schmuck, in the head with
a hatchet. The blow fractured her skull and caused an
underlying hemorrhage into the brain. The State charged Mr.
Schmuck with one count of attempted murder in the first
degree. The trial court also instructed the jury on the
lesser included offenses of attempted murder in the second
degree and attempted voluntary manslaughter.
In the months preceding the incident, Mr. and Mrs.
Schmuck's fourteen-year marriage had been deteriorating,
and they had already discussed the terms of a divorce. An
argument eleven days earlier in the parking lot of a horse
arena, however, was the first of several events that
culminated in Mr. Schmuck's assault. Mrs. Schmuck
testified that, in the front seat of their parked car, Mr.
Schmuck "drew back and almost punched me in the
face" and "told me he was going to kill
me." After this exchange, Mr. Schmuck exited
the car and walked away. Mrs. Schmuck called law enforcement
and eventually obtained an Ex Parte Order of Protection
which, among other things, prohibited Mr. Schmuck from
contacting Mrs. Schmuck or entering the family home. Mrs.
Schmuck also instructed their two children, JES and CAS, to
refrain from communicating with their father.
On the morning of May 28, 2015, Mr. and Mrs. Schmuck appeared
in circuit court for a hearing on the protection order. Mrs.
Schmuck's lawyer could not attend, however, and the court
continued the hearing for two weeks. Mr. and Mrs. Schmuck
could not agree upon a visitation arrangement at this time
and, thus, Mr. Schmuck would be unable to see his children
until the court revisited the matter at the rescheduled
hearing two weeks later.
After the hearing, Mrs. Schmuck returned with the children to
the family home, while Mr. Schmuck went to see his lawyer,
who gave him a copy of the divorce paperwork that Mrs.
Schmuck had recently filed. Upon reading Mrs. Schmuck's
requested divorce terms, Mr. Schmuck became upset. Mrs.
Schmuck was asking for sole custody of the children,
supervised visitation for Mr. Schmuck, spousal support, and,
according to Mr. Schmuck, "all the property." Mr.
Schmuck stated that these were not the terms to which they
had previously agreed.
That night, as Mr. Schmuck re-read the divorce paperwork, he
became increasingly agitated. Mr. Schmuck explained in a
police interview that Mrs. Schmuck "want[ed] pretty much
everything, and full custody and sole custody and everything,
and I lost it." Mr. Schmuck stated that Mrs. Shmuck was
"going for everything, " she would not text him
back to discuss it, and everything "built up." Mr.
Schmuck wanted "just an acknowledgement" from Mrs.
Schmuck that she had received his texts, but she
"wouldn't even give [him] that after fifteen years
Mr. Schmuck therefore decided to drive to the family home to
"confront" Mrs. Schmuck. As he walked out the door
to the car, he picked up a hatchet that he used for camping
and hunting. Mr. Schmuck testified that he grabbed the
hatchet because: "I was just pissed off. I -- I really
don't know. I was -- I just wasn't thinking." He
threw the hatchet on the floorboard on the passenger side of
the car and started driving to the family home approximately
twenty miles away. Mr. Schmuck testified that he calmed down
as he drove, but still continued to the house so he could
talk to Mrs. Schmuck about the divorce.
Once he arrived, Mr. Schmuck parked the car approximately
50-75 feet down the road from the home. Taking the hatchet
with him, Mr. Schmuck climbed over a wooden fence into the
yard. He proceeded to the phone box on the exterior wall of
the house and used the hatchet to cut the phone lines into
the home. Meanwhile, inside, the children were asleep. Mrs.
Schmuck was in her bedroom talking on the landline telephone
to a friend when she heard their dogs barking outside. When
Mr. Schmuck cut the lines, her telephone went dead. Mrs.
Schmuck noticed that the dogs were still barking, so she
locked all the doors and turned on the back porch light.
After checking on the children, Mrs. Schmuck retrieved her
.17 HMR handgun-a pistol they kept in the house for shooting
"coyotes or racoons or whatever vermin happen to be
floating around the house"-and retreated to her bedroom,
where she grabbed her tablet computer to send an online
message to her friend for help. Moments later, she heard a
crash. Mrs. Schmuck testified: "I knew right then that
something was horribly, horribly wrong. And I grabbed the
pistol. I went around the end of the bed as quickly as I
could and got to the [bedroom] doorway."
The crash that Mrs. Schmuck had heard was Mr. Schmuck-with
hatchet in hand- breaking in the front door. Once inside the
home, Mr. Schmuck yelled out at Mrs. Schmuck. Mr. Schmuck
proceeded through the kitchen and was nearing Mrs.
Schmuck's bedroom when Mrs. Schmuck, still in the
doorway, aimed her pistol at him and pulled the trigger three
times. But, to her surprise, the gun was not loaded. Mr.
Schmuck testified that once Mrs. Schmuck started
"shooting" at him, he pushed her away, and punched
her while still holding the hatchet "up by the head, on
the handle" in his punching hand. Mr. Schmuck testified
that Mrs. Schmuck then fell backwards and laid unconscious
for 10-15 seconds.
Mrs. Schmuck had no memory of Mr. Schmuck striking her. When
she regained consciousness, she was bleeding extensively and
in need of medical attention, and Mr. Schmuck agreed to take
her to the hospital. In the hectic minutes before leaving,
Mr. Schmuck threw the hatchet into the basement to hide it.
JES testified that Mr. Schmuck flipped on the light in her
bedroom and told her, "[t]his is what we
wanted." Mrs. Schmuck instructed JES to contact the
sheriff's department as soon as they left.
At the hospital, a CT scan revealed that Mrs. Schmuck had a
depressed skull fracture with an underlying hemorrhage into
the brain. Because of the severity of her injuries, the
hospital transported her by air to a trauma care facility.
There, a neurosurgeon performed surgery and inserted a cap on
her brain to protect it. Mrs. Schmuck testified at trial that
she continued to suffer mental, emotional, and physical
effects from the injury.
Soon after Mr. and Mrs. Schmuck arrived at the hospital,
sheriff's deputies arrested Mr. Schmuck. A few hours
later, Detective Granlund of the Fremont County Sheriff's
Office conducted an investigatory interview of Mr. Schmuck at
the Fremont County Detention Center, which was video-recorded
and played for the jury. After providing Miranda warnings and
obtaining biographical information, Detective Granlund asked
Mr. Schmuck what happened. Mr. Schmuck began by explaining
that he had received the divorce paperwork that indicated
Mrs. Schmuck "want[ed] pretty much everything, and full
custody and sole custody and everything, and I lost it, and I
went out there to confront her and she pulled a pistol."
Mr. Schmuck maintained that he pushed Mrs. Schmuck to defend
himself, which caused her to fall.
Detective Granlund did not believe Mr. Schmuck's story
and told him so: "Here's the deal, OK? That's
not how she got hurt. I know that . . . the doctors know
that. OK? So I need to know what happened. . . . Lying's
not going to help anybody here." Mr. Schmuck immediately
A. I tried to kill her with a hatchet.
Q. Where's the hatchet now?
A. In the basement.
. . ..
Q. Tried to kill her with it - - so you brought it from the
Q. With the intent?
Q. What'd you bring it for?
A. I don't know.
Detective Granlund continued to explore Mr. Schmuck's
state of mind:
Q. So -- just [you were] upset.
Q. Mad -- because you were getting screwed over with these
A. For years she accused me of killing her -- or wanting to
kill her -- so, you want to accuse me? -- I just lost it.
A few minutes later, Detective Granlund returned to the line
Q. Why did you have the hatchet with you?
Q. Because you were going to hit her with it? When did you
decide you were going to hit her with that hatchet?
A. I knew when I took off from the house.
Q. When you took off from the house you knew you'd go out
there and hit her with the hatchet. OK.
Detective Granlund later summarized:
Q. So when you left the house -- when you left . . . to go
out there -- I mean, you were upset, you were mad.
Q. And you took the hatchet because you were going to kill
The State charged Mr. Schmuck with one count of attempted
murder in the first degree. The district court also
instructed the jury on the lesser included crimes of
attempted murder in the second degree, offered by both the
State and Mr. Schmuck, and attempted voluntary manslaughter,
offered by Mr. Schmuck only. At the formal jury instruction
conference, the State objected to the self-defense
instructions offered by Mr. Schmuck, arguing that he had not
established a prima facie case of self-defense sufficient to
warrant the instructions. The court gave the instructions
over the State's objection. Mr. Schmuck objected to the
court instructing the jury on both the definitions of
"malice" and "maliciously" in the context
of second-degree murder. Because the actual term used in the
element instruction was "maliciously, " Mr. Schmuck
argued that "malice" should not be defined. The
court overruled the objection. Mr. Schmuck did not object to
any other instructions. However, Mr. Schmuck argued that,
when instructing the jury that an aggressor "who
provokes the conflict" loses the right of self-defense
until he withdraws, the term "provokes" is a term
of art and, therefore, should be defined for the jury. The
court declined to define "provokes" for the jury.
The district court gave the jury the following instructions
relevant to the issues on appeal:
INSTRUCTION NO. 13
The pertinent elements of the crime of Murder in the First
3. a person,
5. with premeditated malice,
6. killed another human being,
INSTRUCTION NO. 14
As used in Instruction No. 13:
"Purposely" means intentionally.
"Premeditated malice" means that the Defendant
thought about and considered the idea of killing before the
act which caused death was committed, and that the act which
caused death was done with intent to kill and without legal
justification or excuse.
"Premeditated" requires an interval sufficient to
form the intent to kill before the commission of the act
intended to result in death.
INSTRUCTION NO. 15
If you are not satisfied beyond a reasonable doubt that the
defendant is guilty of the offense of Attempted Murder in the
First Degree as charged in Count 1 of the Information, he
may, however, be found guilty of any lesser offense, the
commission of which is necessarily included in the offense
charged, if the evidence is sufficient to establish his guilt
of such lesser offense beyond a reasonable doubt.
The offense of Attempted Murder in the First Degree, with
which the defendant is charged, also includes the lesser
offense of Attempted Murder in the Second Degree and
Attempted Voluntary Manslaughter.
INSTRUCTION NO. 17
The pertinent elements of Second Degree Murder are:
3. a ...