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Sindelar v. State

Supreme Court of Wyoming

March 15, 2018

TODD M. SINDELAR, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.

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

         * An order granting Ms. Olson's Motion to Withdraw was entered on December 13, 2017.

          KAUTZ, JUSTICE.

         [¶1] A jury convicted Todd M. Sindelar of second-degree murder for shooting and killing Matthew Boyer. Mr. Sindelar asserts the district court committed several errors in instructing the jury. We conclude that, although some of the instructions were incorrect, Mr. Sindelar was not prejudiced by the errors and, accordingly, affirm.

         ISSUES

         [¶2] The issues on appeal are:

         I. Did the district court commit plain error when it failed to properly instruct the jury on self-defense and the duty to retreat?

         II. Did the district court commit plain error when it instructed the jury on second-degree murder?

a. Did the district court include an incorrect definition of "maliciously" in the jury instructions?
b. Did the district court err by failing to define "recklessly" or "recklessly under circumstances manifesting an extreme indifference to the value of human life" in the jury instructions?

         III. Did the district court commit plain error[1] by failing to instruct the jury that the State had to prove beyond a reasonable doubt that Mr. Sindelar did not act in a sudden heat of passion and by using a stepped verdict form that did not allow the jury to consider the defense of voluntary manslaughter?

         FACTS

         [¶3] Mr. Sindelar and Mr. Boyer had once been close friends but they had a falling out some time prior to the event in question. Mr. Boyer was also friends with Lyle Schmidt, who had rented a room from Mr. Sindelar for a time. On the night of November 27, 2013, Mr. Schmidt and Mr. Boyer were drinking together. They discussed that Mr. Schmidt had given Mr. Sindelar "400-some-dollars" for rent but subsequently discovered that a former tenant had also paid rent for the room for the same time period. Although Mr. Schmidt had since moved out, he was upset about the rent and decided to go to Mr. Sindelar's place and confront him about it.

         [¶4] Mr. Sindelar was not at home when Mr. Schmidt and Mr. Boyer arrived at his house, but another resident of the house, Jonathan Whelan, was. Mr. Whelan stated that the two visitors were "aggressively upset, " and Mr. Schmidt asked Mr. Whelan to call Mr. Sindelar. Mr. Whelan made the call and gave Mr. Schmidt the phone. Mr. Schmidt asked Mr. Sindelar where he was. Mr. Sindelar said he was at Mingles, even though he was actually at Boot Hill. Mr. Sindelar described Mr. Schmidt as "very angry, " but Mr. Schmidt did not threaten him or Mr. Whelan. Mr. Boyer did not speak at all.

         [¶5] Mr. Schmidt and Mr. Boyer went to Mingles looking for Mr. Sindelar. Mr. Schmidt stated that they intended to talk to Mr. Sindelar about the rent dispute. They did not locate Mr. Sindelar, so they went back to his house. No one answered the door at Mr. Sindelar's house, but Mr. Schmidt testified that he and Mr. Boyer went in to see if they could find anyone. He went up to the bedrooms on the second floor but did not locate anyone. He testified that, as they were leaving, he tripped over the coffee table and grabbed the entertainment center to catch himself, accidentally knocking it over. The entertainment center and the TV fell onto the coffee table, breaking the table. Mr. Schmidt denied breaking the door or a mirror downstairs.

         [¶6] Mr. Whelan testified that he had gone looking for Mr. Sindelar at Boot Hill after Mr. Schmidt and Mr. Boyer left the house the first time. The bar was already closed when he got there and he did not find Mr. Sindelar, so he returned to the house. According to Mr. Whelan, he found the door to the house broken, the entertainment center knocked over, and a mirror in a downstairs bedroom broken on the floor.

         [¶7] Mr. Whelan called Mr. Sindelar to report that the house had been broken into, the entertainment center was knocked over, and the coffee table and a mirror were broken. Mr. Sindelar and a friend had been to Mingles looking for Mr. Schmidt and Mr. Boyer and were headed back to the friend's house when Mr. Whelan called. Mr. Sindelar instructed Mr. Whelan not to call the police and said he would "take care of it." Mr. Sindelar tried to get his friend to take him to his car, which was parked at another friend's house, but she refused, fearing he would get into trouble. So, Mr. Sindelar called Mr. Whelan and asked him for a ride to his car. Mr. Whelan took Mr. Sindelar home to get the keys and then to his car. Mr. Sindelar gave him $20 for his trouble. Mr. Sindelar drove to McDonalds, bought a sandwich and ate it in his car. There is a dispute over the details; however, it is clear that after finishing his meal, Mr. Sindelar drove to Mr. Boyer's house around 3:30 a.m. and shot him.

         [¶8] Mr. Boyer's girlfriend, Jessica Hanten, testified that she and Mr. Boyer were asleep in their second-floor bedroom when she heard pounding on the door, which she described as louder than a knock. Mr. Boyer woke up and went downstairs, wearing only a pair of athletic shorts. Ms. Hanten heard him going down the stairs and heard the front door open with no gap between the two sounds. She heard Mr. Boyer say, "What the f***?", followed immediately by two gunshots. She did not hear any discussion between Mr. Boyer and Mr. Sindelar. Ms. Hanten ran downstairs and found Mr. Boyer on the floor with his whole body inside the house. There was no knife or other weapon anywhere near him. She shouted for help from a roommate who lived in the basement, Jacob Rogers, and called 911. The 911 operator asked her to look for weapons, and she told the operator she did not see any.

         [¶9] Mr. Rogers testified that in the early morning hours of November 28, 2013, he heard loud banging on the front door. He heard "someone running down the stairs, and then opening the door, and then I heard two bangs, " which he said sounded like bricks being clapped together. He described the timing of the sounds as follows:

Q. Now, when you hear the banging on the door to the coming down the stairs to the door opening, was there any break in time between you hearing the coming down the stairs and the opening of the door?
A. Like two seconds, maybe split seconds; not long at all.
Q. So it wasn't as though you hear someone coming down the stairs, then there's a pause for ten minutes, and then all of a sudden you hear the door open?
A. No, it was all in one concurring motion, like it all happened all at once.
Q. So in succession?
A. In succession, yes. It happened someone going down the stairs, opening the door, and then two gunshots, and it all happened all altogether.

         [¶10] Mr. Rogers testified that, because of all the noise, he had already started up the stairs from the basement when Ms. Hanten screamed for him. He saw Mr. Boyer lying on his back on the floor with his feet pointed toward the door. No portion of Mr. Boyer's body was outside of the residence. He saw "little bits" of blood on Mr. Boyer's chest and stomach and picked him up and saw two exit wounds in his back, with blood pooling on the floor beneath him. He overheard Ms. Hanten talking to the 911 operator and she mentioned CPR, so he tried to perform CPR "for a minute, " but stopped because he did not know how to do it. He denied seeing any weapons or "knives of any sort" by Mr. Boyer and denied removing any knives or other weapons from Mr. Boyer's presence.

         [¶11] Mr. Sindelar told a different story. He claimed that he drove to Mr. Boyer's house at around 3:30 a.m. to "talk" to him. He parked across the street from the house, tucked the gun that he kept under his car seat into the waistband of his pants, walked to the house and up onto the front porch, opened the storm door and knocked. He said that no one responded to his first knock, so he knocked louder. Mr. Sindelar stated that he saw someone look out through the blinds on the window to the side of the door and a period of time went by before Mr. Boyer opened the door. Mr. Sindelar testified that Mr. Boyer said, "What the f*** are you doing here?" According to Mr. Sindelar, he responded, "Why did you break into my house?" He said he then noticed a knife in Mr. Boyer's hand.[2] Mr. Sindelar stated there was about three feet between him and Mr. Boyer at that time - Mr. Boyer was less than one foot inside the door and he was two feet outside the door. Mr. Sindelar said that he pulled the gun out of his waistband, held it at his side and said, "Don't come at me with a knife. I have a gun." Mr. Sindelar said that Mr. Boyer lunged at him with the knife, he pulled the gun up and shot once, took a step back and then shot Mr. Boyer a second time. He stated that Mr. Boyer said something like, "Aw f*** call the, " and the door shut. He heard the knife hit the floor when Mr. Boyer fell.

         [¶12] After the shooting, Mr. Sindelar drove east on I-90. He called his ex-girlfriend and, about ten to fifteen miles outside of Gillette, threw the phone out the window so he could not be tracked. He stopped in the Black Hills near Sundance, Wyoming, to sleep. In the morning, he drove into Rapid City, South Dakota, and purchased gas.

         [¶13] Near Rapid City, a South Dakota highway patrolman recognized Mr. Sindelar's car from a BOLO (Be On the Look Out) notice. After requesting assistance from other troopers, he attempted to stop Mr. Sindelar. Mr. Sindelar led South Dakota authorities on a high-speed chase. He eventually was taken into custody when a set of spikes punctured his tire. Mr. Sindelar stated that he planned to go to a large city, steal a car, and drive to Florida.

         [¶14] The State charged Mr. Sindelar with first-degree murder. He was tried in 2015, and the jury acquitted him of first-degree murder but convicted him of the lesser charge, second-degree murder. He appealed his conviction, and the State conceded error because the district court had improperly given the jury a "flight" instruction, in contravention of Hadden v. State, 2002 WY 41, 42 P.3d 495 (Wyo. 2002). We entered an order reversing and remanding the case for further proceedings. Sindelar v. State, 2016 WY 88, 378 P.3d 309 (Wyo. 2016).

         [¶15] The State filed an amended information, charging Mr. Sindelar with second-degree murder.[3] The matter was tried before a jury in January 2017. Mr. Sindelar admitted that he shot and killed Mr. Boyer, but claimed that he was acting in self-defense. The jury convicted him of second-degree murder, and he filed a timely notice of appeal.

         STANDARD OF REVIEW

         [¶16] Mr. Sindelar claims the district court gave several erroneous instructions to the jury. He did not object to any of the instructions; consequently, our review is limited to a search for plain error. In order to establish the district court committed plain error, Mr. Sindelar is required to show: 1) the record is clear about the incident alleged as error; 2) the district court transgressed a clear and unequivocal rule of law; and 3) he was denied a substantial right resulting in material prejudice. Johns v. State, 2018 WY 16, ¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) (citing Schmuck v. State, 2017 WY 140');">2017 WY 140, ¶ 32, 406 P.3d 286, 297 (Wyo. 2017) and Collins v. State, 2015 WY 92, ¶ 10, 354 P.3d 55, 57 (Wyo. 2015)).

         DISCUSSION

         I. Self-Defense

         [¶17] Mr. Sindelar claims the district court committed plain error when it instructed the jury that he had an absolute duty to retreat before using deadly force. The district court gave the following instructions regarding self-defense and the duty to retreat:

INSTRUCTION NO. 21
If the Defendant had reasonable grounds to believe and did believe that he was in imminent danger of death or serious bodily harm from which the Defendant could save himself only by using deadly force against an assailant, the Defendant had the right to use deadly force in order to defend himself. "Deadly force" means force which is likely to cause death or serious bodily harm.
The circumstances under which the Defendant acted must have been such as to produce in the mind of a reasonably prudent person, similarly situated, the reasonable belief that the assailant was about to kill the Defendant or do serious bodily harm to the Defendant. The danger must have been apparent, ...

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