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Stone v. State11/25/1987
regarding mental illness or deficiency.
Appellant also alleges error because his proposed instruction on heat of passion was refused. Instruction Y reads as follows:
"The sudden heat of passion contemplated by the voluntary manslaughter statute is descriptive of just such a state of mind, and it may occur from any emotional excitement of such intensity that it temporarily obscures reason, or leaves the mind bereft of reason."
This proposed instruction was extracted from language in State v. Helton, 73 Wyo. 92, 276 P.2d 434, 442 (1954). The court determined that the language from Helton contained in appellant's proposed instruction was not appropriate under the circumstances of this case; and in any event, the definition of heat of passion was essentially covered in the court's instruction No. 9:
"`Heat of passion' means such passion as naturally would be aroused in the mind of an ordinarily reasonable person in the same or similar circumstances as those in question, which would cause him to act rashly, without reflection and deliberation, and from passion rather than from judgment."
Appellant did not object to the court's refusal to give his proposed instruction "Y" unless it may be said that offering an instruction amounts to an objection if the instruction is not given. That is not the law.
"* * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection * * *." Rule 51, Wyoming Rules of Civil Procedure.
Since there was not an objection to the refusal to give the requested instruction, any error must be considered under the plain error doctrine. It is obvious in this case that appellant has not shown a violation of a clear and unequivocal rule of law nor that he has been materially prejudiced. Brown v. State, supra, at 1115. "Heat of Passion" was adequately covered by the instructions given. The court did not abuse its discretion in refusing to give appellant's proposed Instruction Y.
We have carefully considered the five issues raised on appeal and find no reversible error.
Affirmed.
URBIGKIT, Justice, dissenting.
I dissent.
This case in the horror of its facts of heritage calls for us to "walk along a dark way." Not only was tragedy portrayed in social depravity and unadjusted criminality experienced by appellant in his youth, but now is reinforced by the life sentence at public cost, and his infinite loss. Unquestionably, the Furies will have their vengeance. Since horror and tragedy are not rules, principles, or standards in our criminal -justice system, this case, as should each criminal appeal, must be reviewed within other more specified criteria. I find fault with the multiple utilization of the tape-recorded investigatory confessions as constituting trial error justifying reversal, and consequently dissent.
Initially, both on a procedural basis and lack of rational differentiation where jury-deliberation availability of exhibits should apply alike to civil as well as criminal proceedings, a protective approach available for uniform application should exist. The multiplied involvement of video and audio tape evidence in the jury-trial process, raising questions of the reemphasized showing by introduction to the jury-room deliberations, is measured by the increased number of such cases now to be found. See Annot., 37 A.L.R.3d 238. In Wyoming, address of the general question specifically relating to audio tapes includes Taylor v. State,
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