by Anthony Accurso

The Supreme Court of Wyoming clarified how the changes from common-law crimes to statutory only crimes in 2008, including modifications in 2018, affect the common-law rules for self-defense as an immunity claim. This announcement affects defendants who claim immunity from prosecution in connection to a death where the person acted in defense of another.

On the evening of July 31, 2018, after spending an evening with her boyfriend and ex-boyfriend at two different bars, Marty Smith rode with them to the Sundance Travel Center to buy snacks. Douglas Haar (the ex-boyfriend) had been drinking all night and began to act aggressively toward Smith and her current boyfriend, Jessie Johnson.

Cameras at the store captured video, but not audio, of the confrontation lasting from 2:12 a.m. to 2:36 a.m., which included the parties trading blows but eventually ending in Johnson applying a choke hold to Haar until he lost consciousness. Smith aided Johnson by restraining Haar’s hand, so he couldn’t strike Johnson further. Believing Haar was merely passed out, Smith and Johnson left the travel center.

During the fight, the store clerk called the police. Officers discovered Haar was not breathing and had no pulse. They performed CPR until medics arrived and declared Haar dead, which led to the arrests of Smith and Johnson.

At trial, Smith’s defense counsel offered two theories of defense: (1) Johnson acted in self-defense (and thus Smith could not be convicted as an accessory to Johnson’s killing of Haar) and (2) Smith acted in defense of Johnson. The latter theory was offered under the “alter ego rule” from common law.

However, the trial court disallowed the defense of Johnson’s theory because Smith had technically landed the first physical blow to Haar and, as an aggressor, was not entitled to a defense of another instruction. This was because common law dictated an aggressor could not start a fight and then subsequently use deadly force, even if justified as defense of another.

Smith was convicted at trial of accessory to involuntary manslaughter and accessory to assault and battery because the jury determined Johnson did not act in self-defense.

On appeal, the Wyoming Supreme Court considered defense counsel’s arguments regarding the alter ego rule and how this rule had changed after statutory modifications. If Smith was denied a jury instruction because of “[a]n erroneous refusal of a theory of defense instruction,” this is a “reversible error per se.” Black v. State, 464 P.3d 574 (Wyo. 2020).

Self-defense and defense of another were purely common law defenses in Wyoming until they were codified into statute in 2008 and modified in 2018. Wyo. Stat. Ann. § 6-2-602.

Prior to this change, defense of another included the “alter ego rule,” which can be described as a defendant “asserting the justification of defense of another steps into the position of the person defended.” Starr v. State, 395 P.3d 180 (Wyo. 2017). This was problematic because “[t]he alter ego rule worked a considerable hardship upon defendants who unknowingly intervened to aid third parties who were not privileged to use self-defense” unbeknownst to the defender. “In such situations, the intervenor was criminally liable for any injury or death he or she caused.” State v. Cook, 515 S.E.2d 127 (W.Va. 1999).

Because of the problems associated with this rule, and because the Legislature enacted statutory self-defense and defense-of-another defenses, the Court held that the alter ego rule no longer applies, announcing: “We now join those jurisdictions that have abandoned the alter ego rule.” While the Court acknowledged that it agrees with the policy-based rationales put forth for its abandonment in other jurisdictions, it explained that the primary reason for its abandonment is “that the rule is incompatible with the Wyoming Criminal Code.”

The Court stated that the applicable statute provides for a “reasonable belief” standard. The Court noted that none “of our code’s crimes against persons purports to criminalize conduct based on imputed knowledge, but the alter ego rule is a common law rule that effective does just that.” Under the statute, the Court explained that the analysis is “what a reasonable person in like circumstance would judge necessary to prevent injury or loss, and to ‘an honest belief that the danger exists whether the danger is real or apparent.’” § 6-2-602(a). That is, under the reasonable person standard, a defender may still be eligible to assert a defense-of-another defense even if the person being defended was the initial aggressor or otherwise precluded from invoking self-defense, according to the Court.

Applying the statutory reasonable person standard to the present case, the Court determined that Smith may be eligible to assert a defense-of-another claim if she used “defensive force that a reasonable person in like circumstances would judge necessary to prevent an injury or loss....” § 6-2-602(a).

In reviewing the evidence as to whether Smith was an initial aggressor, the Court determined a factual dispute existed “concerning Ms. Smith’s intent and whether her use of physical force was the act of an aggressor or the act of defender.” In order to be an aggressor, “[t]he accused must willingly and knowingly have used some language or have done some act after meeting [her] antagonist, reasonably calculated to lead to an affray or deadly conflict.” State v. Bristol, 84 P.2d 757 (Wyo. 1938). Regarding Smith’s intent, the Court said “the video of Ms. Smith ... shows that each time she used physical force, she was either pushing Mr. Haar toward the exit and away from Mr. Johnson, or intervening between Mr. Haar and Mr. Johnson, as Mr. Haar came at Mr. Johnson.”

This evidence, said the Court, leads to a reasonable inference that Smith was not an aggressor, and she could have thus acted in defense of Johnson. “In cases where the determination of which party was the aggressor is in dispute, the jury should be specifically instructed as to the definition of ‘aggressor’ so it can resolve the factual issue.” Widdison v. State, 410 P.3d 1205 (Wyo. 2018).

Thus, the Court held that the district court erred in failing to instruct the jury to determine whether Smith was an aggressor and whether she was innocent under the new, statutorily created defense-of-another claim.

Accordingly, the Court vacated her convictions and remanded for retrial. See Smith v. State, 480 P.3d 532 (Wyo. 2021). 

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