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Farrow v. State

Supreme Court of Wyoming

March 19, 2019

WADE RICHARD FARROW, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Lincoln County The Honorable Joseph B. Bluemel, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General. Argument by Ms. Harper.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.

          DAVIS, CHIEF JUSTICE.

         [¶1] Wade Richard Farrow appeals his second-degree murder conviction, asserting that the district court committed several reversible errors during the course of his trial, and further contending that he received ineffective assistance of trial counsel. We affirm.

         ISSUES

         [¶2] Mr. Farrow presents four issues:

I. Did the district court err when it instructed the jury?
II. Did the district court abuse its discretion when it prohibited testimony of specific instances of conduct relating to the victim's character for violence under W.R.E. 404(a)(2) and 405(b)?
III. Did the prosecutors commit misconduct when they asserted to the jury that it needed to consider the fact that Mr. Farrow did not flee or leave the apartment prior to the physical altercation against his claim of self-defense?
IV. Did the district court err in finding that counsel for Mr. Farrow was not ineffective and denying his Rule 21 motion?

         FACTS

         [¶3] On the evening of December 20, 2014, Mr. Farrow and the woman he was living with, Whitney Lowham, went to a bar in Afton, Wyoming to celebrate a friend's birthday. After having a couple of drinks with friends, Ms. Lowham left the bar without Mr. Farrow and made her way to a party at Blake Jensen's apartment. Once at the apartment, the intoxicated Ms. Lowham kept falling asleep. Tyler Lindsey took her to Mr. Jensen's bedroom so that she could sleep.

         [¶4] While still at the bar, Mr. Farrow confided in an acquaintance, Andy Johnson, that he was concerned that Ms. Lowham was with another man and worried that things would not work out between them. Mr. Farrow and Mr. Johnson stayed at the bar and talked until 2:00 a.m., then spent an additional twenty to thirty minutes talking in the parking lot. The pair then walked to Mr. Johnson's house where they continued to talk for an additional hour and a half. Mr. Johnson felt that Farrow was in a "pretty good spot emotionally" and that "everything kind of settled down" by that time, and the two decided to go look for Ms. Lowham.

         [¶5] Mr. Johnson drove them to Mr. Farrow's apartment. Mr. Farrow went in to look for Ms. Lowham, but she was not there. Mr. Farrow returned to Mr. Johnson's truck, at which time he removed a pistol from the back of his pants and set it on his lap. The two then went to Mr. Jensen's apartment to look for Ms. Lowham.

         [¶6] Before going to the apartment, Mr. Farrow tucked the pistol into the back of his pants. He and Mr. Johnson entered the apartment, where Farrow asked about Ms. Lowham. He was told that Mr. Lindsey had taken Ms. Lowham back to one of the bedrooms, where she was asleep. Tony Hansen, who had been on the couch, began talking to Farrow. During the conversation, Mr. Farrow made a comment that Mr. Hansen perceived as derogatory towards Mr. Lindsey. Mr. Hansen began "lipping off," calling Farrow names and suggesting that the two go outside to fight.

         [¶7] Mr. Farrow went back to the bedroom to check on Ms. Lowham. He spent approximately ten minutes with her before he walked back into the living room and sought help to get her out of the apartment and home. Mr. Hansen resumed taunting Mr. Farrow, calling him more names and continuing to insist that they should go outside and fight. Another individual suggested that the two should play beer pong to settle their dispute, and when Mr. Farrow agreed, Mr. Hansen responded, "Why, cuz you're a bitch?" In response, Mr. Farrow pulled out his pistol and either shoved it in Mr. Hansen's face or hit him across the face with it. Witnesses disagree over whether Mr. Hansen froze or threw a punch at Mr. Farrow.

         [¶8] Mr. Farrow then turned his back to Mr. Hansen, placed the pistol up under his arm, and fired directly into Mr. Hansen's chest. Melanie Pumphrey attempted to separate the pair, and as a result was shot in the hip.

         [¶9] After being shot the first time, Mr. Hansen fell on his back. Mr. Farrow positioned himself "straight over the top" of Mr. Hansen, steadied both hands on the pistol, and fired the remaining rounds into his body. Mr. Hansen sustained a total of seven gunshot wounds. Mr. Farrow fled the apartment and waited outside for law enforcement to arrive.

         [¶10] Mr. Farrow testified to a different version of events. He told the jury that he did not want to leave without Ms. Lowham, and so he decided to ask Mr. Johnson to help him carry her out of the apartment. As soon as he returned to the living room after checking on Ms. Lowham, Mr. Hansen again suggested that they go outside to fight. Mr. Farrow turned his back to Mr. Hansen, and Mr. Hansen struck him in the back "really hard." Mr. Farrow testified that, in pain and in fear, he pulled out the pistol and stuck it in Mr. Hansen's face, though he was not planning to shoot him. Mr. Farrow slumped over, was getting hit repeatedly, and two other individuals had their hands on the pistol when his vision started to go black and the pistol fired. Mr. Farrow regained control of the pistol, saw Mr. Hansen standing, and shot him again several times. Mr. Hansen then fell back, and Mr. Farrow ran from the apartment.

         [¶11] Mr. Farrow was charged with first-degree murder for the shooting death of Mr. Hansen and with aggravated assault and battery for the injury to Ms. Pumphrey. The jury acquitted him of first-degree murder, but found him guilty of the lesser included offense of second-degree murder. It also acquitted him of the aggravated assault and battery charge. The district court sentenced Mr. Farrow to serve thirty-five to sixty-five years imprisonment. Mr. Farrow appealed his conviction and sentence. He also filed a motion for a new trial pursuant to W.R.A.P. 21, asserting ineffective assistance of trial counsel. After holding an evidentiary hearing on the motion, the district court denied it. Mr. Farrow appealed that decision as well, and we consolidated his two appeals.

         DISCUSSION

         A. Jury Instructions

         [¶12] Mr. Farrow asserts that the district court committed five reversible errors in instructing the jury. The district court "has extensive discretion in tailoring jury instructions, so long as they correctly state the law and fairly and adequately cover the issues presented." Merit Energy Co., LLC v. Horr, 2016 WY 3, ¶ 23, 366 P.3d 489, 497 (Wyo. 2016). "Accordingly, our review of a district court's decision to give or refuse a particular jury instruction is for an abuse of discretion." Id. When there is no objection to a jury instruction, however, we must review for plain error. Schmuck v. State, 2017 WY 140');">2017 WY 140, ¶ 32, 406 P.3d 286, 297 (Wyo. 2017). We apply the appropriate standard of review to each of Mr. Farrow's claims. We begin with his three claims of improper instructions relating to the issue of self-defense, then turn to his remaining two claims.

         1. Right to Arm

         [¶13] Mr. Farrow's first claim is that the district court improperly refused to give his proposed instruction explaining his right to arm himself. Because the question was presented to the district court, we review for abuse of discretion. Mr. Farrow proposed a jury instruction based on Wyoming Criminal Pattern Jury Instruction 8.05, which reads as follows:

One who has reasonable grounds to believe that another will attack him, and that the anticipated attack will be of such a character as to endanger his life or limb, or to cause him serious bodily harm, has a right to arm himself for the purpose of resisting such attack.
If the defendant armed himself in reasonable anticipation of such an attack, that fact alone does not make the defendant the aggressor or deprive the defendant of the right of self-defense.

         The district court declined to give this instruction.

         [¶14] On appeal, Mr. Farrow asserts that long-standing precedent supports his claim that the district court abused its discretion when it refused to give this jury instruction. He relies on several cases, including Brown v. State, 80 Wyo. 12, 336 P.2d 794 (1959), for the proposition that, when the evidence conflicts as to who the initial aggressor was, the jury should be instructed "as to [the] accused's right to arm himself in anticipation of danger, and, where such an instruction is warranted by the evidence, a refusal to give it constitutes error." Id. at 30, 336 P.2d at 801. Similarly, in Baier v. State, 891 P.2d 754 (Wyo. 1995), we quoted with approval from 41 C.J.S. Homicide § 350c, which said:

Where the court restricts the issue of self-defense by submitting the issue of provoking the difficulty, it should also instruct the jury as to accused's right to arm himself in anticipation of danger. Such an instruction is not required where the court instructs as to self-defense without any limitation as to provoking the difficulty.

Baier, 891 P.2d at 759. Mr. Farrow contends that the identity of the first aggressor was not merely at issue in his case, but "likely . . . one of the most crucial issues for the jury to decide." The record supports this contention, with evidence including testimony from Mr. Johnson that "Mr. Hansen was definitely the one, you know, kind of - kind of initiating it."

         [¶15] However, the prosecution argued to the district court that this instruction was inappropriate because Mr. Farrow did not testify that he armed himself in anticipation of an attack. His testimony, to the contrary, was that he picked up the firearm "just out of habit," and that it was his habit to carry the pistol with him. The district court agreed with the prosecution, and it declined to give the proposed jury instruction.

         [¶16] In Brown, we quoted 41 C.J.S. Homicide § 378 c (4) to the effect that an instruction on the right of the defendant to arm himself in anticipation of attack

is neither necessary nor proper where such an issue is not raised by the evidence in the case, as where the evidence shows that, although accused was carrying a weapon at the time, he was doing so merely as was his usual custom, and not in anticipation of danger from deceased.

Brown, 80 Wyo. at 30, 336 P.2d at 800-01.

         [¶17] The record includes some evidence that Mr. Farrow had anticipated an attack. For example, Mr. Johnson testified that when he asked about the pistol, Mr. Farrow said he "needed it in case he was attacked." This evidence conflicts with Mr. Farrow's own testimony that he carried the pistol as a matter of habit. In reviewing for abuse of discretion, we view the record "in the light most favorable to that decision and to the prevailing party." Nicodemus v. Lampert, 2014 WY 135, ¶ 11, 336 P.3d 671, 674 (Wyo. 2014). The district court gave greater credit to Mr. Farrow's testimony that he carried the pistol as a matter of habit and discounted evidence to the contrary. Viewing the evidence in a light favorable to that decision, we cannot conclude that the district court abused its discretion when it declined to instruct the jury on Mr. Farrow's claimed right to arm himself in anticipation of an attack.

         2. Determination of Aggressor

         [¶18] Mr. Farrow's second claim of error on the issue of self-defense involves the instruction informing the jury that it must determine whether Mr. Farrow or Mr. Hansen was the aggressor. Instruction No. 22 read in relevant part:

In considering the claim of self-defense in this case, you must first determine whether the defendant was the aggressor in this case or whether Mr. Hans[e]n was the aggressor in this case. Some sort of physical aggression or a threat of imminent use of deadly force is required before a person will be considered an aggressor. Verbal provocation without more is generally insufficient to justify an initial aggressor.

         The jury was further instructed that if it found that Mr. Farrow was the initial aggressor, he was "justified in using deadly force to repel the danger only if he retreated as far as he safely could do before using deadly force." In the alternative, the jury was informed that if it found that Mr. Hansen was the initial aggressor, then Mr. Farrow could "use deadly force only if necessary, and must consider reasonable alternatives under the circumstances."

         [¶19] Mr. Farrow contends that the disputed jury instruction improperly required the jury to choose whether Mr. Farrow or Mr. Hansen was the aggressor. In other words, he claims that it was improper to force the jury to conclude that if Mr. Hansen was not the aggressor, then Mr. Farrow had to be. He asserts that the law requires the jury to decide only if the defendant was or was not the aggressor, but that it does not require the jury to decide whether the victim was the aggressor. "The victim is not on trial," Mr. Farrow maintains, "and a defendant is not required to vilify the victim at trial in order to establish that the defendant was not the aggressor."

         [¶20] Mr. Farrow further asserts that because the instruction indicated that either Mr. Farrow or Mr. Hansen had to be the aggressor, the jury was not allowed to consider other possibilities. He posits that both could have been aggressors, or that neither one might have been. Mr. Farrow contends that the jury was misled about the law of self-defense because it was forced to make an artificial choice.

         [¶21] As a preliminary matter, we must resolve the parties' disagreement over the standard of review. Mr. Farrow asserts that he objected to this instruction at trial, which would cause us to review for abuse of discretion. The State counters that we should review for plain error because Mr. Farrow's objection at trial was different from his issue on appeal. The record reflects that Mr. Farrow made this objection at trial:

We do object to this, your Honor. I think this is adequately covered in other instructions. Particularly, I'm concerned with the language . . . . The verbal provocation without more is generally insufficient to justify an initial aggressor. I'm not quite sure exactly what that means but I think it's confusing and unduly emphasizes one aspect of the evidence over the others. We would object to giving this one.

[¶22] We agree with the State that Mr. Farrow's issue on appeal is different from the objection made at trial. "Where the objection was not originally made on the ground now urged, the argument is without force. . . . The objector should lay his finger on the particular point intended to be raised so that the trial court will have notice and an opportunity to cure the alleged error." Buszkiewic v. State, 2018 WY 100, ¶ 33, 424 P.3d 1272, 1282 (Wyo. 2018) (quoting Sanderson v. State, 2007 WY 127, ¶ 13, 165 P.3d 83, 88 (Wyo. 2007). See also Ortega v. State, 966 P.2d 961, 966 (Wyo. 1998) ("The spirit and policy of our rules with reference to jury instructions is to apprise and inform the district court of the purpose of offered jury instructions and of objections to proposed jury instructions so that the court may have an opportunity to correct and amplify them before submission to the jury."). Accordingly, we will review for plain error. As often stated, plain error exists when: "(1) the record clearly reflects the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves that the violation adversely affected a substantial right resulting in material prejudice." Garriott v. State, 2018 WY 4, ¶ 21, 408 P.3d 771, 780-81 (quoting Hathaway v. State, 2017 WY 92, ¶ 29, 399 P.3d 625, 634 (Wyo. 2017) (quoting Griggs v. State, 2016 WY 16');">2016 WY 16, ¶ 81, 367 P.3d 1108, 1132-33 (Wyo. 2016))).

         [¶23] The instruction challenged by Mr. Farrow appears in the record, satisfying the first requirement of plain error. We ask next if the instruction violated a clear and unequivocal rule of law. In Knospler v. State, 2016 WY 1, 366 P.3d 479 (Wyo. 2016), we reviewed an instruction nearly identical to the one Mr. Farrow challenges:

In considering the claim of self-defense in this case, you must first determine whether the Defendant was the aggressor in this case or whether Mr. Baldwin was the aggressor in this case. Some sort of physical aggression or a threat of imminent use of deadly force is required before a person will be considered an aggressor. Verbal ...

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