                IN THE SUPREME COURT, STATE OF WYOMING

                                             2015 WY 97

                                                                     APRIL TERM, A.D. 2015

                                                                              July 31, 2015


KYLE JORDAN LAWRENCE,

Appellant
(Defendant),

v.                                                                      S-14-0133

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Sweetwater County
                          The Honorable Richard L. Lavery, Judge

Representing Appellant:
      W. Keith Goody, Attorney at Law, Cougar,Washington.

Representing Appellee:
      Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
      Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Director,
      A. Walker Steinhage, Student Director, and Laureen S. Rogers, Student Intern,
      Prosecution Assistance Program, University of Wyoming, College of Law.
      Argument by Ms. Rogers.


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] Appellant, Kyle Jordan Lawrence, challenges his conviction for voluntary
manslaughter. He contends the district court erred in excluding evidence indicating the
victim was under the influence of methamphetamine at the time of the events leading to
his death. We affirm.

                                         ISSUE

[¶2]   Appellant presents the following issue:

             Did the district court abuse its discretion when it granted the
             State’s motion in limine and excluded any reference to
             methamphetamine use by Klakken, the shooting victim?

The State phrases the issue in a similar manner.

                                         FACTS

[¶3] On the night of July 6, 2012, Appellant, Kyle Lawrence, and his fiancée were
drinking and socializing with a neighbor, Ta’Maira Michalides, in their apartment
complex in Rock Springs, Wyoming. At approximately 9:30 p.m., the victim, Andrew
Klakken, began shooting off fireworks in front of the apartment complex.
Ms. Michalides asked the victim to stop shooting fireworks because her son was sleeping.
The victim became belligerent and began shouting profanities and insults at
Ms. Michalides and Appellant’s fiancée. Appellant came out of his apartment on the
third story of the apartment building and began exchanging profanities with the victim.
After the verbal altercation escalated, Appellant retrieved a handgun from his apartment
and told the victim “Come on up here, I[’ve] got something for you.” At that point,
Appellant’s neighbor and friend, Michael Keeley, came to Appellant’s apartment and
urged him to put the gun away. Appellant removed the magazine from the gun and set
the magazine and the gun on a table in his apartment.

[¶4] Appellant then returned to the balcony in front of his apartment and shot a
firework in the direction of the victim. The firework struck the victim or landed near
him. The victim began running up the stairs of the apartment complex toward Appellant,
and Appellant told the victim not to continue because he had a loaded weapon. Appellant
retrieved the gun from his apartment, returned to the doorstep, and shot at the victim
three times, striking him once. The victim later died from the gunshot wound. A
toxicology report conducted in conjunction with the victim’s autopsy indicated that the
victim was under the influence of methamphetamine at the time of his death.

[¶5] The State charged Appellant with first-degree murder, aggravated assault and


                                            1
battery, and possession of a deadly weapon with unlawful intent. The district court
subsequently dismissed the charges of aggravated assault and battery and possession of a
deadly weapon at the request of the State. Prior to trial, the State filed a motion in limine
to exclude any evidence of the victim’s methamphetamine intoxication at the time of his
death, including the post-mortem toxicology report and photos of a pipe found next to the
victim’s body. After a hearing at the final pretrial conference, the district court granted
the motion, finding that evidence of the victim’s intoxication was not relevant under
W.R.E. 401 because there was no evidence to indicate Appellant knew the victim was
under the influence of methamphetamine.1 The court also found the evidence was
inadmissible under W.R.E. 403 because “being accused of having the characteristics of a
methamphetamine user is extremely prejudicial, particularly in a county like Sweetwater,
with a severe problem with methamphetamine trafficking and use.” 2

[¶6] At trial, Appellant claimed he was acting in self-defense when he shot the victim.
The jury rejected Appellant’s claim, finding him guilty of voluntary manslaughter, a
lesser included offense of first-degree murder. The district court sentenced Appellant to
14 to 20 years in prison.

[¶7] Following trial, Appellant submitted a “Motion for Judgment of Acquittal and a
New Trial.” He argued that he was entitled to a new trial, in part, because he had not
been permitted “to mention the fact that [m]ethamphetamine was found in the victim’s
system at autopsy or to discuss the significant amount of [m]ethamphetamine in his
system at the time he was shot by the Defendant.” The district court denied the motion,
stating that “The evidence presented at trial has not changed the Court’s evaluation of the
probative value [of the evidence] and the risk of unfair prejudice and confusion of the
issues.” Appellant subsequently initiated this appeal.



1
    W.R.E. 401 provides as follows:

                          “Relevant evidence” means evidence having any tendency to
                  make the existence of any fact that is of consequence to the
                  determination of the action more probable or less probable than it would
                  be without the evidence.
2
    W.R.E. 403 provides that:

                          Although relevant, evidence may be excluded if its probative
                  value is substantially outweighed by the danger of unfair prejudice,
                  confusion of the issues, or misleading the jury, or by considerations of
                  undue delay, waste of time, or needless presentation of cumulative
                  evidence.




                                                     2
[¶8] While his appeal was pending, Appellant filed a motion with this Court seeking a
limited remand to develop his claim that his counsel was ineffective for failing to hire an
expert witness to interpret the post-mortem toxicology report of the victim, provide a
report to the district court, and produce the expert to testify at the hearing on the State’s
motion in limine. We granted the motion, and the district court held an evidentiary
hearing. At the hearing, Dr. David Benjamin offered expert testimony relating to the
effects of methamphetamine. Dr. Benjamin testified that the victim had an “extremely
high” level of methamphetamine in his blood at the time of his death, and he opined that
“the methamphetamine significantly contributed to [the victim’s] agitation and violent
behavior and aggressive nature.” However, on cross-examination, when Dr. Benjamin
was asked whether the victim would have acted differently if he had not been under the
influence of methamphetamine, Dr. Benjamin stated that he “would not be able to
respond to that without speculating.”

[¶9] Following the hearing, the district court concluded that counsel’s failure to call an
expert witness did not constitute deficient performance. The district court found as
follows:

              Dr. Benjamin acknowledged that he was not able, without
              speculating, to testify whether Mr. Klakken had developed a
              tolerance to methamphetamine or how that level of
              methamphetamine affected his behavior, if it affected his
              behavior at all. More importantly, [Appellant] has still not
              made any connection between Dr. Benjamin’s testimony
              about how dangerous a person who is using
              methamphetamine has the potential to be and the nature of the
              threat that was perceived by [Appellant] at the time he
              decided to use deadly force against Mr. Klakken.

(Emphasis in original.) The district court also noted that “Dr. Benjamin did not have any
evidence that the Defendant had direct knowledge on July 6, 2012 that Mr. Klakken had
been using methamphetamine.” Appellant does not challenge the district court’s ruling
that his counsel was not ineffective.

                                STANDARD OF REVIEW

[¶10] We review a trial court’s evidentiary rulings for an abuse of discretion.

                     Evidentiary rulings are within the sound discretion of
                     the trial court and include determinations of the
                     adequacy of foundation and relevancy, competency,
                     materiality, and remoteness of the evidence. This
                     Court will generally accede to the trial court’s


                                             3
                    determination of the admissibility of evidence unless
                    that court clearly abused its discretion.

Brock v. State, 2012 WY 13, ¶ 23, 272 P.3d 933, 939-40 (Wyo. 2012) (quoting Edwards
v. State, 2007 WY 146, ¶ 7, 167 P.3d 636, 637 (Wyo. 2007)). “The ultimate issue that we
decide in determining whether there has been an abuse of discretion is whether or not the
court could have reasonably concluded as it did.” Edwards v. State, 973 P.2d 41, 45
(Wyo. 1999) (quoting State v. McDermott, 962 P.2d 136, 138 (Wyo. 1998)).

                                     DISCUSSION

[¶11] As noted above, Appellant claimed that he was acting in self-defense when he shot
and killed Mr. Klakken. The basic rule relating to self-defense was set forth in Jury
Instruction 23:

             Instruction No. 23

                     It is lawful for a person who is being assaulted to
             defend himself from attack if he has reasonable grounds for
             believing and does believe that bodily injury is about to be
             inflicted upon him. In doing so he may use all force which
             would appear to a reasonable person, in the same or similar
             circumstances, to be necessary to prevent the injury which
             appears to be imminent.

The jury was also instructed, consistent with Wyoming law, that a self-defense claim is
not available to an aggressor who provokes the conflict:

             Instruction No. 28

                     Generally, the right to use self-defense is not available
             to an aggressor who provokes the conflict. However, if one
             provokes a conflict but thereafter withdraws in good faith and
             informs the adversary by words or actions of the desire to end
             the conflict and is thereafter pursued, that person then has the
             same right of self-defense as any other person. The person is
             justified in using force to the same extent that any other
             person would be who was acting in self-defense.

[¶12] Appellant contends that evidence relating to the victim’s methamphetamine
intoxication at the time of his death was admissible under W.R.E. 401 because it was
relevant to Appellant’s claim of self-defense. According to Appellant, the victim’s
methamphetamine intoxication was relevant because it “casts significant light on the


                                            4
specific nature of the threat to [Appellant].” Appellant claims that the exclusion of
evidence relating to the victim’s methamphetamine intoxication deprived the jury of a
critical fact necessary to place Appellant’s behavior in proper context. Appellant further
contends that the district court’s ruling deprived him of his constitutional right to present
a defense.

[¶13] The State claims that evidence relating to the victim’s methamphetamine
intoxication was not relevant because there is no evidence in the record indicating that
Appellant knew the victim was under the influence of methamphetamine. The State also
contends the district court correctly determined that the risks of unfair prejudice and
confusion of the issues outweighed the probative value of the evidence under W.R.E.
403. The State notes that Dr. Benjamin could not give an opinion as to whether the
victim would have acted differently if the victim had not been under the influence of
methamphetamine. Finally, the State contends that, even if the district court erroneously
excluded the evidence relating to the victim’s methamphetamine intoxication, Appellant
was not prejudiced by the error. According to the State, even if Appellant knew the
victim was under the influence of methamphetamine, the evidence introduced at trial
clearly showed that Appellant provoked the victim’s conduct. The State asserts that
Appellant invited the conflict by challenging the victim to come up to the third floor of
the apartment complex and threatening him with “I’ve got something for you.” The State
also contends that Appellant provoked the conflict by shooting a firework in the direction
of the victim. As a result of these actions, the State asserts that a self-defense claim was
not available to Appellant.

[¶14] This Court has never addressed the issue of whether evidence of a homicide
victim’s intoxication at the time of his death is admissible when a defendant claims he
acted in self-defense. We note, however, that other jurisdictions have found such
evidence to be admissible when there is evidence indicating the defendant is aware of the
victim’s intoxication. For example, in State v. Plew, 745 P.2d 102, 105 (Ariz. 1987), the
Arizona Supreme Court reversed a trial court’s decision to exclude evidence of the
victim’s cocaine intoxication where the defendant believed the victim to be on a cocaine
high at the time of the altercation. The victim was the defendant’s cocaine supplier and
the defendant was familiar with the impact of cocaine on the victim because he had been
present on many occasions when the victim used cocaine. Id. Considering these facts,
the court found that the evidence was admissible:

              It is our opinion as well that the effect of cocaine intoxication
              on mental and physical behavior is a proper subject for expert
              testimony in an appropriate case. We believe this is such a
              case. An addict is accused of attempting to murder his
              supplier, also an addict. The defendant claims self-defense --
              alleging he was trying to protect himself from the attack of an
              angry, intoxicated “pusher” acting under a cocaine-induced


                                             5
              frenzy.

Id., 745 P.2d at 106. In Sipe v. State, 404 S.W.3d 164 (Ark. App. 2012), the court
applied the same principle in determining that evidence of the victim’s intoxication was
not admissible where the defendant was not aware of the victim’s intoxication. The court
explained as follows:

              In the context of self-defense, the victim’s alleged propensity
              toward violence, his criminal background, and his
              intoxication at the time of death could only possibly be
              relevant if appellant both knew about those factors and knew
              who he was defending himself against when he fired his
              weapon. Britt v. State, 7 Ark. App. 156, 161, 645 S.W.2d
              699, 702 (1983) (holding that testimony of specific acts
              unknown to a defendant are not directly probative of his
              belief that he is about to encounter unlawful deadly force).
              Here, appellant admitted that he fired his gun without
              knowing who was riding toward him. Therefore, because
              appellant did not know upon whom he was shooting, he could
              not have considered the victim’s background and state of
              mind before firing his weapon. Accordingly, such evidence
              would only have served to prejudice the victim.

Id., 404 S.W.3d at 172. See also 41 C.J.S. Homicide § 447, and cases cited therein.

[¶15] Appellant cites Bromley v. State, 2009 WY 133, 219 P.3d 110 (Wyo. 2009) as
support for his claim that the evidence of the victim’s intoxication was admissible. In
Bromley, the defendant shot and killed a friend while target shooting. He was charged
with the crime of second-degree murder and was ultimately convicted of the lesser
included offense of manslaughter.

[¶16] In Bromley, the State’s theory of the case was that the defendant was a heavy user
of methamphetamine who became volatile and violent when under the influence of the
drug. In accordance with this theory, the State sought to introduce evidence of the
defendant’s historic use of methamphetamine and his alleged use of the drug on the day
of the killing. Id., ¶ 6, 219 P.3d at 113. The district court initially ruled that the evidence
was inadmissible under Rule 404(b). Id., ¶ 8, 219 P.3d at 113. Prior to trial, however,
the defendant’s cellmate came forward to say that the defendant admitted that he used
methamphetamine on the day of the killing and that he committed the crime because he
was “coming down from drugs” and he was “all methed out” at the time of the shooting.
Id., ¶¶ 9-11, 36, 219 P.3d at 113, 120. That evidence was ruled admissible under Rule
801(d)(2), providing that admissions by a party-opponent are not hearsay. Id., ¶ 35, 219
P.3d at 119. The court also admitted expert testimony relating to “the effect of


                                              6
methamphetamine on the human body and mind, both during use and during withdrawal
from use” and to “the detectability of methamphetamine in the human body through
chemical analysis.” Id., ¶ 14, 219 P.3d at 114. The defendant appealed, and we found no
abuse of discretion in the trial court’s decision to admit evidence of the appellant’s use of
methamphetamine. With respect to the appellant’s statements to the jailhouse informant,
we concluded that “they were relevant to prove the appellant’s state of mind at the time
of the shooting, they were more probative of his state of mind than any other available
evidence, and they were not unduly prejudicial.” Id., ¶ 41, 219 P.3d at 121. We further
concluded that “Once [the jailhouse informant] testified about the appellant’s admission
that he was ‘methed out’ at the time of the shooting, the foundation was laid for [the
expert witness’s] testimony about the effects of methamphetamine use.” Id., ¶ 42, 219
P.3d at 121.

[¶17] Appellant claims that because testimony relating to methamphetamine use was
introduced in Bromley, it should have been allowed here. We disagree. Bromley is
distinguishable from the present case. In Bromley, the defendant’s state of mind was at
issue and evidence of that state of mind was relevant to the elements of the crimes
charged. In Bromley, the shooting occurred without provocation and the defendant
claimed it was accidental. We determined that the testimony indicating he was under the
influence of methamphetamine was “more probative of his state of mind than any other
available evidence.” The defendant did not claim he was acting in self-defense and, in
light of that fact, there was no issue as to whether the victim’s state of mind influenced
the reasonableness of the defendant’s actions. Bromley provides no support for the
proposition that a victim’s methamphetamine intoxication is relevant to the
reasonableness of the defendant’s actions absent evidence indicating the defendant is
aware of the intoxication.

[¶18] In the present case, the State’s motion in limine to exclude evidence of the
victim’s methamphetamine intoxication asserted that “there is absolutely no evidence the
State is aware of that the defendant in this case knew the [victim] was using
methamphetamine beyond bald assertions the victim was a ‘Crack head.’” Indeed, in
taped interviews with law enforcement, Appellant repeatedly referred to the victim as a
“crack head,” but indicated that he did not know whether the victim was intoxicated at
the time of his death. Appellant stated “I mean, I could fight [the victim] and beat the
shit out of him and his friend, but I don’t know what he was going to do, man. You don’t
– I don’t know what drug he was on. Even if he wasn’t on a drug, I don’t care.” At the
hearing on the State’s motion in limine, defense counsel stated that “The Defendant did
not know that this [victim] was on meth, but his statements to law enforcement have been
consistent . . . that he believed that he was on something.” Defense counsel, however, did
not identify any specific statements made by Appellant. Following the hearing, the
district court determined that “There’s no evidence, or suggestion that there’s evidence,
that the Defendant knew that the victim was under the influence of methamphetamine.”



                                             7
[¶19] The issue was revisited at trial before Appellant took the stand to testify in his
defense. Defense counsel indicated that Appellant would testify that the victim appeared
to be under the influence of alcohol and drugs but acknowledged that “[Appellant] has no
way to say that it was methamphetamine.” At no point during trial did Appellant’s
counsel offer any evidence, in an offer of proof or otherwise, suggesting that Appellant
knew the victim was under the influence of methamphetamine at the time of his death.
Appellant also presented no offer of proof indicating that the victim was a regular user of
methamphetamine or that he had a reputation for violence or aggression when under the
influence of methamphetamine. Finally, we note that during Appellant’s testimony, he
stated that he had never met the victim, indicating that he did not know whether the
victim was a regular user of methamphetamine. Under these facts, where there is no
evidence to indicate Appellant was aware of the victim’s intoxication, we cannot
conclude that evidence of the victim’s methamphetamine intoxication had “any tendency
to make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Because
Appellant presented no evidence to indicate that he was aware of the victim’s
methamphetamine intoxication, the evidence demonstrating that the victim was under the
influence of methamphetamine was not relevant to Appellant’s self-defense claim.
Accordingly, we find no basis to conclude that the district court abused its discretion in
refusing to admit the evidence.

[¶20] Affirmed.




                                            8
