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Shull ruling could upend second high-profile case; court hears arguments

Aug 23, 2017 By Daniel Bendtsen, Staff Writer

If convicted attempted murderer Terry Schmuck has his 30-year prison sentence overturned, he'll have convicted murderer and fellow Fremont County resident Jeremiah Shull to thank.

Appellate attorneys argued before the Wyoming Supreme Court last week that Schmuck, who was convicted of attempted murder in 2015 after attacking his estranged wife with a hatchet, should receive a new trial.

Earlier decision

The Supreme Court overturned Shull's first-degree murder conviction in February, determining that Fremont County district judge Norman Young gave erroneous jury instructions that prejudiced Shull's case.

Shull stabbed his estranged wife's lover to death in 2014 after walking seven miles to her house north of Riverton.

Similar jury instructions were given in Schmuck's trial, and the Supreme Court will now have to determine if those instructions also prejudiced his defense.

1995 ruling

After overturning 22 years of its own legal precedent, the Supreme Court decision in Shull's case now requires prosecutors to explicitly disprove a claim that the killing occurred in a "sudden heat of passion," as Shull had argued.

The court had ruled in 1995 that when prosecutors prove "premeditated malice" -- as they did in Shull's case -- they also inherently disprove the defense of sudden heat of passion.

Since 1995, Wyoming case law has considered the sudden heat of passion argument to only to be relevant when securing a conviction for voluntary manslaughter -- meaning that prosecutors actually need to prove that defense in order convict a defendant of that crime.

Convictions tougher

The February decision has made it harder for prosecutors to secure murder convictions -- and attempted murder convictions -- because a sudden heat of passion defense has now become a mitigating factor needing to be disproven in the same way a self-defense argument is.

It's also a precedent that can be retroactively applied to give Schmuck a new trial.

Christyne Martens, Wyoming's senior assistant attorney general, argued last week that Shull shouldn't be applied to Schmuck's case because the "sudden heat of passion" argument wasn't one used as a defense.

Instead, the Kinnear man argued he had acted in self-defense when he struck his wife with a hatchet after he broke into his wife's home and cut the phone lines, violating a protection order.

Schmuck then found his wife in her bedroom brandishing a pistol.

'Heat of passsion'

Schmuck had been angered by the terms of their divorce papers, but Martens argued the "sudden heat of passion" argument was not relevant because the defendant had testified that he temporarily pulled off during the 20 mile drive to his wife's house after having "cooled off."

Despite that, the "sudden heat of passion" was an aspect of jury instructions, and appellate attorney Eric Alden said "we have to consider the possibility that judge Young knew what he was doing."

"Heat of passion may be cooled off and then be reignited," he said. "Maybe the emotional heat of passion is the response to his wife's (gun)."

Martens said that an application of the Shull precedent to Schmuck's case would be a slippery slope.

"It simply isn't a sudden heat of passion case ... he never said he was overwhelmed and enraged in response to the gun," Martens said.

"We need case-by-case analysis so that we're not reversing decisions that otherwise resulted in a fair trial."

Even if the Supreme Court determines that "sudden heat of passion" is not a relevant defense, Alden still seemed confident the conviction will be overturned.

"This case is going to have to get retried anyhow," he said. "There were wrong instructions throughout this case."

Correction: This story "Shull ruling could upend other high-profile case; court hears arguments" should have identified the attempted murder convict as Terry Schmuck, not Timothy Schmuck. The correction was made Aug. 24, 2017.

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2017-09-24