Murder in Wyoming

“Murder in the House” by Jakub Schikaneder (1890), Public domain, via Wikimedia Commons

Murder has its own gravity. Murder is a crime, sure, but its mythos and feel is more visceral and more real to most people than its statutory or legal content.

Murder inspires a unique mixture of fear and attraction in people. Murder is the chief of all crimes; yet, murder is also understandable and alluring. We “get” murder in ways we do not “get” other more shameful crimes.

Nevertheless, the legal topography of murder is widely ignored. We just want the bloody details.

Well, today, we are going to examine the legal ins and outs of this singularly American crime. What is murder anyway? And what do we Wyomingites do about it?

I. Murder is a Thought Crime

“Murder” must involve a person killing another human being. But that’s not all it requires.

The killing–the homicide–is really just the most basic part of “murder.” Murder itself requires something more than the act of killing. It requires the killer to act with certain intentions, thoughts, feelings, or motives. In legal parlance, it requires the killer to have acted with a particular “mens rea,” a Latin phrase co-opted by Anglo-American law that is fraught with complexity and nuance.

Justice Oliver Wendell Holmes once noted that “most of the difficulty as to the mens rea was due to having no precise understanding what the mens rea is.” Professor Francis Bowes Sayre, Sr. eloquently described mens rea as being “chameleon-like, [because it] takes on different colors in different surroundings.”

Mens rea has, effectively, two meanings. As Professor Joshua Dressler observed in his extraordinarily accessible treatise Understanding Criminal Law:

Broadly speaking, “mens rea” is defined as “a general immorality of motive,” “vicious will,” or an “evil-meaning mind.” Although each of these phrases has a slightly different connotation, “mens rea” as used here suggests a general notion of moral blameworthiness, i.e., that the defendant committed [the crime] with a morally blameworthy state of mind.

Mens rea” may also be defined, simply, as “the particular mental state provided for in the definition of an offense.” This is the “elemental” meaning of “mens rea.” A person may possess “mens rea” in the culpability sense of the term, and yet lack the requisite elementalmens rea.”

Joshua Dressler, Understanding Criminal Law, 118-119 (6th ed. 2012).

In Wyoming, there are two degrees of murder: first-degree murder and second-degree murder. First-degree murder is a more serious offense than second-degree murder. First-degree murder carries with it three possible sentences: death, life without parole, and life with the possibility of parole. Second-degree murder is punishable by a minimum of twenty (20) years in prison up to life in prison.

The differences between these two offenses could not be more subtle. And those differences all come down to the mens rea.

First-degree murder generally requires a person to “purposely and with premeditated malice” kill another human being. See Wyo. Stat. Ann. § 6-2-101(a).

Second-degree murder generally requires a person to “purposely and maliciously, but without premeditation,” kill another human being. See Wyo. Stat. Ann. § 6-2-104.

Accordingly, murder in Wyoming is not focused on whether or not a person killed someone; rather, murder requires that the person did the killing act purposely and with malice. Put another way, murder is not about the killingit is about why and how the killing occurred.

Murder is not about the killing—it is about why and how the killing occurred.

II. First-Degree Murder

First-degree murder is the most serious offense chargeable under Wyoming law. It is the only offense that carries with it the possibility of the death penalty.

The essential characteristics of first-degree murder are (1) a purposeful killing where death of the victim was the specific goal of the actor and (2) the actor killed “with premeditated malice.”

On the first element, first-degree murder requires that the actor’s specific purpose was to cause the death of the victim. See Johnson v. State, 356 P.3d 767, 772 (Wyo. 2015).

The second element requires the actor to have killed the victim with a very specific state of mind. The actor must have acted with “premeditated malice,” which “requires proof of an intentional [killing] done without legal justification or excuse and hatred, ill will or hostility.” See Johnson, 356 P.3d at 772.

The second element also requires the actor to have killed with “premeditation.” Premeditation is the “thinking over, deliberating upon, weighing in the mind beforehand, resulting in a deliberate intention to kill which constitutes the killing murder in the first degree.” Parker v. State, 161 P. 552, 555 (Wyo. 1916). “Premeditation need not have existed for any given length of time before the act, it being sufficient that it existed at the time of the act; and the intent and the act may be as instantaneous as successive thoughts.” Mattern v. State, 151 P.3d 1116, 1129-1130 (Wyo. 2007).

Evidence sufficient to sustain a finding of premeditation and deliberation falls into three basic categories:

(1) facts about what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as ‘planning’ activity;

(2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3) would support an inference that the killing was the result of a pre-existing reflection and careful thought and weighing of considerations rather than mere unconsidered or rash impulse hastily executed;

(3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take the victim’s life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2).

Verdicts of first degree murder typically [are sustained] when there is evidence of all three types and otherwise require at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).

Bouwkamp v. State, 833 P.2d 486, 494-495 (Wyo. 1992)

A jury may infer “malice” and “premeditation” from the facts and circumstances surrounding and leading up to the actor’s killing the victim. In other words, “[a]ll evidence, direct and circumstantial, must be considered. It is for the jury to decide if the evidence presented establishes malice and premeditation.” Murray v. State, 713 P.2d 202, 206 (Wyo. 1986).

“Premeditated malice” is effectively presumed to exist where a defendant kills another person “in the perpetration of, or attempt to perpetrate, any sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping, or abuse of a child under the age of sixteen (16).” See Wyo. Stat. Ann. § 6-2-101(a).

Because the actor’s mental state and the existence of premeditated malice during or preceding the killing act is the defining trait of first-degree murder, juries may even be instructed that the actor’s “self-induced intoxication”caused by alcohol or other substancesmay be a complete defense to first-degree murder if the actor was “intoxicated to such a degree that he was unable to formulate the intention to commit” first-degree murder at the time the killing supposedly occurred. See Wyo. Stat. Ann. § 6-1-202; WCPJI 8.18.

In short, first-degree murder demands some proof of a very particular and calculated kind of killing. Killing alone will not be enough. What is required is proof that the actor killed the victim, specifically desired to cause the end of the victim’s life, harbored hatred, ill will, or hostility towards the victim, and thought about and weighed the decision to kill the victim before or at the time time the actor killed the victim.

III. Second-Degree Murder

Source: Jan Luyken, CC0, via Wikimedia Commons

Second-degree murder is a “lesser-included offense” of first-degree murder. And it’s an amorphous blob of an offense.

Where first-degree murder has sharp contours and specific features, second-degree murder is blurry half-hearted duplicate. It requires a person to kill another human being “purposely and maliciously, but without premeditation.”

Yet, Wyoming caselaw has established that “purposely” does not require the actor to have “an intent to kill”; instead, “purposely” just requires that the actor consciously or intentionally taken the action that caused the killing, such as purposely rather than accidentally pulling the trigger of a gun or throwing a punch. The Wyoming Supreme Court put it this way: “purposely” requires only that the State prove the defendant “acted purposely, not that he killed purposely.” Butcher v. State, 123 P.3d 543, 550 (Wyo. 2005).

Moreover, Wyoming caselaw has defined “maliciously” in dense legal jargon rather than understandable or useful plain terms. According to the current pattern jury instructions, “maliciously” for purposes of second-degree murder means “the act constituting the offense was done without premeditation, was reasonably likely to result in death, was done recklessly under circumstances manifesting an extreme indifference to the value of human life and was done without legal justification or excuse.” See WCPJI 21.04B.

In 1998, following the Wyoming Supreme Court’s decision eliminating “intent to kill” from second-degree murder, Professor Thomas E. Lauer wrote an article describing the effects of that decision. He described this decision as effectively enlarging the crime of second-degree murder to include lesser homicide crimes that were previously classified as manslaughter: “[Wyoming’s new caselaw] requires rethinking of Wyoming’s law of homicide. By doing away with the intent to kill in second degree murder, the Wyoming Supreme Court may have in fact enlarged the reach of second degree murder, transferring some killings from the category of manslaughter to that of second degree murder.” Theodore E. Lauer, The Wyoming Criminal Code Revisited: Reflections After Fifteen Years, 33 Land & Water L. Rev. 523, 552 (1998).

In 2007, Professor Eric A. Johnson wrote a separate article criticizing Wyoming’s second-degree murder statute as “elusive” and indistinguishable from lesser forms of homicide. In his reading of the statute and the Wyoming Supreme Court’s interpretation of that statute, Professor Johnson deduced that the single most important distinguishing trait between second-degree murder and lesser homicide crimes is the malice requirement. See Eric A. Johnson, The Crime That Wasn’t There: Wyoming’s Elusive Second-Degree Murder Statute, 7 Wyo. L. Rev. 1, 23 (2007). The trouble was that the Wyoming Supreme Court had not furnished a clear or workable definition of the malice required for second-degree murder. Or, as Professor Johnson wrote, the Court adopted a “vague, insubstantial definition of ‘malice.'” Id. at 33. Professor Johnson recommended the Court adopt a malice standard for second-degree murder that requires proof of either “intent to kill or of ‘extreme indifference to the value of human life.'”

In a decision issued on Halloween 2014, the Wyoming Supreme Court acknowledged that Wyoming’s second-degree murder statute and related caselaw have turned the statute into effectively a pure question of whether the killer acted with sufficient malice. The Court agreed with Professor Johnson’s criticism that its current law did not adequately define the contours of “malice” for purposes of second-degree murder. Accordingly, the Court came up with the following formulation of “malice” for second-degree murder:

As our discussion indicates, Wyoming precedent defining the malice element of second-degree murder since Crozier, which eliminated the requirement of an intent to kill — a requirement that we do not resurrect by this decision — greatly expanded the scope of second-degree murder. Ultimately, we are forced to conclude that the definition of malice set forth in Crozier and its progeny does not provide a meaningful distinction between the mental states necessary for a conviction of second-degree murder and manslaughter. Indeed, as indicated by Professor Johnson’s analysis, the elements of second-degree murder as set forth in our precedent and instructed in this case would encompass nearly every form of criminal homicide. Accordingly, we are unable to conclude that jury instructions allowing the State to prove malice merely by showing that the defendant acted with “hatred, ill will, or hostility,” or “without legal justification or excuse” leave no doubt as to the circumstances under which second-degree murder can be found to have been committed. In order to ensure proper application of Wyoming’s second-degree murder statute, we must interpret the term “malice” as used in Wyo. Stat. Ann. § 6-2-104 to require something more than mere “hatred, ill will, or hostility” or the mere absence of “legal justification or excuse.” In searching for an adequate definition of “malice,” we need look no further than our existing precedent.

 Our decisions in Lopez and O’Brien implicitly approve of the definition of malice applied in the context of second-degree murder in Utah and Colorado, and under the Model Penal Code. Again, that formulation requires that, in order to demonstrate malicious intent, the State must show a heightened form of recklessness as compared to that required for manslaughter; i.e., the State must show that the defendant acted recklessly under circumstances manifesting an extreme indifference to the value of human life. We conclude that this standard is more closely equivalent to the moral culpability of the intent-to-kill mental requirement abandoned in Crozier, and that this formulation adequately distinguishes second-degree murder from manslaughter. Accordingly, we expressly adopt this definition of malice.

Wilkerson v. State, 336 P.3d 1188, 1199-1200 (Wyo. 2014)

Good luck figuring out what “extreme indifference to the value of human life” actually means. But here are some examples from various cases:

  • the firing of a loaded gun, without provocation, into a moving train and the resultant death of an innocent bystander
  • the discharge of a firearm into a crowd of people
  • operating a vehicle at high speed
  • placing obstructions on a railroad track
  • throwing a heavy piece of timber from a roof onto a crowded street
  • pointing a revolver loaded with a single cartridge and firing it on the third pull of the trigger during a game of Russian Roulette
  • firing several shots into a home known to be occupied
  • intending to shoot over a victim’s head in order to scare him, but hitting him by “mistake”
  • throwing a heavy beer glass at a woman carrying a lighted oil lamp.

See People v. Jefferson, 748 P.2d 1223, 1226-1227 (Colo. 1988) (citing examples).

Lastly, one notable distinction between first-degree and second-degree murder: intoxication is no defense. Courts consider second-degree murder a “general intent” crime, which only requires proof that the person voluntary took some action, not that he had a specific intent, plan, or goal for his action. Accordingly, a person’s intoxication, which may undermine his ability to form an intent, plan, or goal, has no bearing on a “general intent” crime requiring only the voluntariness of his actions.

IV. Conclusion: All About the How and Why

Murder in Wyoming is about much more than homicide. It peels back the killing and asks the questions: how and why. That does not mean the means of killing or the facts leading up to the killing have no role. It means their role is to help a jury understand why the killer chose to strike the particular killing blow.

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