September 9, 2019

11:52:23 AM
CASE NUMBER: S-19-0046

IN THE SUPREME COURT

STATE OF WYOMING

STATE OF WYOMING )
Petitioner, )
)
v. ) No. S-19-0046
)
JASON TSOSIE JOHN )
Respondent. )

_____________________________________________________________________

BRIEF OF RESPONDENT
_____________________________________________________________________

Diane Lozano, #6-2823

State Public Defender

Kirk A. Morgan, #6-3621

Chief Appellate Counsel

Desiree Wilson, #7-4764

Senior Assistant Appellate Counsel

Office of the State Public Defender

Rogers Bldg., 316 West 22nd Street
Cheyenne, WY 82002
(307) 777-3451

ATTORNEYS FOR RESPONDENT

 TABLE OF CONTENTS

Table of Authorities ............................................................................................................. ii

Statement of Jurisdiction ..................................................................................................... 1

Statement of the Issues ........................................................................................................ 2

Statement of the Case .......................................................................................................... 3

Argument I ......................................................................................................................... 13

WHETHER THE DISTRICT COURT’S PRE-TRIAL

HEARING AND SUBSEQUENT DISMISSAL OF THE CASE
AGAINST MR. JOHN CONSTITUTED A PROPER
EXERCISE OF THE DISTRICT COURT’S POWERS?

Argument II ....................................................................................................................... 37

WHETHER THE PROCEDURES EMPLOYED AND

STANDARDS APPLIED BY THE DISTRICT COURT IN THE
HEARING ON MR. JOHN’S MOTION TO DISMISS WERE
PROPER?

Argument III ...................................................................................................................... 57

WHETHER THE DISTRICT COURT PROPERLY DECIDED

THE CHARGE AGAINST MR. JOHN MUST BE DISMISSED
PURSUANT TO W.S. § 6-2-602(f)?

Conclusion ......................................................................................................................... 85

Certificate of Service ......................................................................................................... 86

Appendix A........................................................................................................................ 87

Order Dismissing Case Following W.S. 6-2-602 Hearing

i
 TABLE OF AUTHORITIES

Cases

Barnes v. State, 642 P.2d 1263 (Wyo. 1982) .................................................................... 35

Billis v. State, 800 P.2d 401 (Wyo. 1990) ............................................................. 19, 22, 34

Bi-Rite Package, Inc. v. District Court of Ninth Judicial Dist. Of Fremont County, et al.,
735 P.2d 709 (Wyo. 1987) ................................................................................. 19, 32, 33

Boyd v. Nation, 909 P.2d 323 (Wyo. 1996)....................................................................... 18

BP America Production Co. v. Department of Revenue, 2006 WY 27, 130 P.3d 438
(Wyo. 2006) ................................................................................................................... 16

Brown v. State, 2008 WY 9, 175 P.3d 1158 (Wyo. 2008) .......................................... 13, 37

Christiansen v. Christiansen, 2011 WY 90, 253 P.3d 153 (Wyo. 2011) .......................... 40

Coburn v. State, 2001 WY 30, 20 P.3d 518 (Wyo. 2001) ................................................. 66

Damato v. State, 64 P.3d 700 (Wyo. 2003) ....................................................................... 57

Dixon v. State, 2019 WY 37, 438 P.3d 216 (Wyo. 2019) ................................................. 57

Drennen v. State, 2013 WY 118, 311 P.3d 116 (Wyo. 2013) .................................... passim

DRW v. DLP (In re ARW), 2015 WY 25, 343 P.3d 407 (Wyo. 2015) .............................. 37

Eash v. Riggins Trucking, Inc., 757 F.2d 557, 77 A.L.R.Fed. 751 (3d Cir. 1985) ..... 32, 33

Estate of Fulmer v. First Wyoming Bank, Sheridan, 761 P.2d 658 (Wyo. 1988) ............. 14

Farrow v. State, 2019 WY 30, 437 P.3d 809 (Wyo. 2019) ............................................... 71

Garcia v. State, 667 P.2d 1148 (Wyo. 1983) .............................................................. 38, 75

Gordon v. State by & through Capitol Bldg. Rehab., 2018 WY 32, 413 P.3d 1093 (Wyo.
2018) .............................................................................................................................. 23

Haire v. State, 2017 WY 48, 393 P.3d 1304 (Wyo. 2017) .............................. 65, 69, 71, 76

Hall v. State, 851 P.2d 1262 (Wyo. 1993).................................................................. passim

Harber v. Jensen, 2004 WY 104, 97 P.3d 57 (Wyo. 2004) .............................................. 62

ii
Harris v. State, 137 P.3d 124 (Wyo. 2006) ....................................................................... 15

Hofstad v. Christie, 2010 WY 134, 240 P.3d 816 (Wyo. 2010) ....................................... 62

Illinois v. Gates, 462 U.S. 213 (1983) ............................................................................... 83

In re MN, 2007 WY 189, 171 P.3d 1077 (Wyo. 2007) ..................................................... 16

Johnson v. City of Laramie, 2008 WY 73, 187 P.3d 355 (Wyo. 2008) ............................ 57

Kite v. State, 2018 WY 94, 424 P.3d 255 (Wyo. 2018) .............................................. 54, 75

Lake v. State, 2013 WY 7, 292 P.3d 174 (Wyo. 2013) ..................................................... 46

Lee v. State, 2007 WY 81, 157 P.3d 947 (Wyo. 2007) ............................................... 14, 18

Leeper v. State, 589 P.2d 379 (Wyo. 1979)....................................................................... 66

Lovato v. State, 228 P.3d 55 (Wyo. 2010)......................................................................... 57

Lower Valley Power & Light, 608 P.2d 660 (Wyo. 1980) ................................................ 43

Madrid v. State, 910 P.2d 1340 (Wyo. 1996) .............................................................. 38, 39

Mut. of Omaha Ins. Co. v. Blury-Losolla, 952 P.2d 1117 (Wyo. 1998) ..................... 17, 18

O’Boyle v. State, 2005 WY 83, 117 P.3d 401 (Wyo. 2005) .............................................. 26

Palmer v. State, 9 Wyo. 40, 59 P. 793 (Wyo. 1900) ............................................. 69, 71, 76

Patterson v. State, 682 P.2d 1049 (Wyo. 1984) .................................................... 75, 79, 80

Pennant Serv. Co. v. True Oil Co., LLC, 2011 WY 40, 249 P.3d 698 (Wyo. 2011) ........ 62

Petersen v. State, 594 P.2d 978 (Wyo. 1979) .................................................................... 35

Pickle v. Bd. of Cty. Comm’rs of Cty. of Platte, 764 P.2d 262 (Wyo. 1988) ........ 14, 15, 17

Raigosa v. State, 562 P.2d 1009 (Wyo. 1977)............................................................. 28, 83

Ramirez v. State, 2016 WY 128, 386 P.3d 348 (Wyo. 2016) ............................................ 37

Rodgers v. Com., 285 S.W.3d 740 (Ky. 2009) ............................................................ 47, 48

Russell v. State, 851 P.2d 1274 (Wyo. 1993) .............................................................. 21, 50

iii
Seteren v. State, 167 P.3d 20 (Wyo. 2007) ........................................................................ 15

Sinclair Oil v. Wyoming Dep’t of Revenue, 2010 WY 122, 238 P.3d 568 (Wyo. 2010) .. 15

Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo. 2012) ........................................... 57

State ex rel. Frederick v. District Court, Wyo., 399 P.2d 583 (1965) .............................. 35

State ex rel. Wyo. Dep’t of Revenue v. Union Pacific R.R. Co., 2003 WY 54, 67 P.3d
1176 (Wyo. 2003) .......................................................................................................... 16

State v. Bristol, 53 Wyo. 304, 84 P.2d 757 (Wyo. 1938) ............................................ 74, 75

State v. Carter, 714 P.2d 1217 (Wyo. 1986) ..................................................................... 40

State v. Collins, 56 Kan. App. 2d 140 (Kan. 2018) .................................................... passim

State v. Flory, 40 Wyo. 184, 276 P. 458 (Wyo. 1929) ...................................................... 75

State v. Goettina, 61 Wyo. 420 (Wyo. 1945) .................................................................... 79

State v. Hardy, 305 Kan. 1001 (Kan. 2017) .................................................... 47, 48, 49, 63

State v. Naple, 2006 WY 125, 143 P.3d 358 (Wyo. 2006) ................................... 19, 32, 33

State v. Ultreras, 296 Kan. 828 (Kan. 2013) ......................................................... 47, 48, 49

Trujillo v. State, 880 P.2d 575 (Wyo. 1994) ............................................................... 25, 39

United Mine Workers of America Local 1972 v. Decker Coal Co., 774 P.2d 1274 (Wyo.
1989) .............................................................................................................................. 18

Vaughn v. State, 2017 WY 29, 391 P.3d 1086 (Wyo. 2017) ...................................... 54, 75

Wallop Canyon Ranch, LLC v. Goodwyn, 2015 WY 81, 351 P.3d 943 (Wyo. 2015) ..... 62

White v. Fisher, 689 P.2d 102 (Wyo. 1984) ...................................................................... 35

Widdison v. State, 2018 WY 18, 410 P.3d 1205 (Wyo. 2018) ................................... passim

Wilson v. State, 655 P.2d 1246 (Wyo. 1982)..................................................................... 25

Wright v. Com., 2017 WL 639386 (Ky. 2017) (unpublished) ......................... 47, 48, 63, 83

Wyoming Dep’t of Transportation v. Haglund, 982 P.2d 699 (Wyo. 1999) ..................... 16

iv
Statutes

K.R.S. § 503.085 ......................................................................................................... 47, 48

K.S.A. § 21-5231 ......................................................................................................... 48, 49

W.S. § 14-3-302(f)............................................................................................................. 46

W.S. § 5-9-129............................................................................................................. 38, 41

W.S. § 5-9-132............................................................................................................. 38, 41

W.S. § 6-2-101................................................................................................................... 29

W.S. § 6-2-308(a) .............................................................................................................. 46

W.S. § 6-2-602............................................................................................................ passim

W.S. § 6-2-602(f)........................................................................................................ passim

W.S. § 6-3-302(b) .............................................................................................................. 46

W.S. § 7-8-105................................................................................................................... 24

Other Authorities

Black’s Law Dictionary, 1220 (8th ed. 2004) ............................................................. 83, 84

Black’s Law Dictionary, 1258 (8th ed. 2004) ................................................................... 17

Wyo. Pattern Jury Instr. 21.01A ........................................................................................ 29

Rules

Wyo. R. App. P. 1.02 ......................................................................................................... 43

Wyo. R. App. P. 1.05 ......................................................................................................... 43

Wyo. R. App. P. 11.01 ....................................................................................................... 43

Wyo. R. App. P. 12.01 ....................................................................................................... 43

Wyo. R. App. P. 13.01 ....................................................................................................... 43

Wyo. R. App. P. 13.01(a) .................................................................................................... 1

v
Wyo. R. App. P. 13.03(a) .................................................................................................... 1

Wyo. R. Crim. P. 12 ................................................................................................... passim

Wyo. R. Crim. P. 16 .......................................................................................................... 29

Wyo. R. Crim. P. 5.1 ....................................................................................... 24, 28, 38, 83

Constitutional Provisions

Wyo. Const. art. V ............................................................................................................. 23

Wyo. Const. art. V, § 10 ........................................................................................ 38, 40, 41

Wyo. Const. art. V, § 2 ........................................................................................................ 1

vi
 STATEMENT OF JURISDICTION

This matter is before the Court on the State of Wyoming’s Petition for Writ of

Review/Certiorari. The State appeals from a district court order dismissing the criminal

case pursuant to Wyoming Statute § 6-2-602(f), arising in the Seventh Judicial District

Court before the Honorable Catherine E. Wilking. The Supreme Court shall have general

appellate jurisdiction, co-extensive with the state, in both civil and criminal causes, and

shall have a general superintending control over all inferior courts, under such rules and

regulations as may be prescribed by law. Wyo. Const. art. V, § 2. Applications for

extraordinary relief from orders of the district courts may be made by petitions for a writ

of review. Wyo. R. App. P. 13.01(a). The State timely filed a petition for writ of review

within fifteen (15) days of the district court’s order. Wyo. R. App. P. 13.03(a); (Petition

for Writ of Review). The “Order Dismissing Case Following W.S. § 6-2-602(f) Hearing”

was filed on March 1, 2019. (R.A., pp. 348-50). This Honorable Court granted the

Petition for Writ of Review to examine the issues raised in the Petition. Jurisdiction is

vested in this Court.

1
 STATEMENT OF THE ISSUES

I. WHETHER THE DISTRICT COURT’S PRE-TRIAL

HEARING AND SUBSEQUENT DISMISSAL OF THE
CASE AGAINST MR. JOHN CONSTITUTED A
PROPER EXERCISE OF THE DISTRICT COURT’S
POWERS?

II. WHETHER THE PROCEDURES EMPLOYED AND

STANDARDS APPLIED BY THE DISTRICT COURT
IN THE HEARING ON MR. JOHN’S MOTION TO
DISMISS WERE PROPER?

III. WHETHER THE DISTRICT COURT PROPERLY

DECIDED THE CHARGE AGAINST MR. JOHN MUST
BE DISMISSED PURSUANT TO W.S. § 6-2-602(f)?

2
 STATEMENT OF THE CASE

Mr. Jason John, the Respondent, was charged with Murder in the First Degree by

an information filed August 6, 2018. (R.A., pp. 15-18). The State alleged that on August

3, 2018, Mr. John, purposely and with premeditated malice, killed Wesley Willow, Jr., in

violation of W.S. § 6-2-101(a). (Id.). The affidavit supporting the information alleged

that on August 3, 2018, responding officers found Wesley Willow, Jr. on the floor of Mr.

John’s trailer. (R.A., p. 16). Multiple spent shell casings were found on the floor of the

central common room of the trailer, and an AR-15-style rifle was located in a bedroom.

(Id.). The affidavit alleged three witnesses were interviewed, in addition to Mr. John:

Nicolas Heims, Melissa Hayden, and Sarah George. (Id. at 16-17).

The State alleged generally that Ms. Hayden, who was Mr. Willow’s girlfriend at

the time, received text messages from Mr. John. (Id.). At least one message upset Ms.

Hayden. (Id.). Mr. Willow used Ms. Hayden’s cell phone to call Mr. John to confront

him about the text message. (Id.). After the telephone call, Ms. Hayden, Mr. Willow,

and Mr. Heims drove to confront Mr. John at Mr. John’s residence. (Id.). Mr. Willow

was reportedly going to Mr. John’s house for the purpose of fighting him. (Id.). The

three individuals parked their vehicle in “the area of John’s residence” or “near Johns’

trailer.” (Id.). As the trio approached Mr. John’s home, a flashlight was shone at them

from the porch area of Mr. John’s trailer. (Id.). The State specifically alleged in the

affidavit that “Heims did not see a gun or a person on the porch.” (Id. at 16).

Mr. Willow and Mr. John exchanged shouts, and the State alleged Mr. Heims did

3
not know precisely what was said. (Id. at 16). The State alleged Mr. Willow began

moving quickly up the steps to the porch of the trailer, and when Mr. Willow was on the

porch area of the trailer, shots came from within the trailer, striking Mr. Willow. (Id. at

16-17). The State alleged Mr. Heims said Mr. Willow “fell into the trailer” after being

shot. (Id.). The State also alleged Ms. Hayden said she witnessed Mr. Willow fall into

the open front door after he was shot. (Id. at 17). The affidavit further alleged Mr. John

provided a statement. (Id. at 17). He told officers he received a call from Mr. Willow

using Ms. Hayden’s cellular telephone. (Id.). Mr. Willow told Mr. John he was coming

to assault him. (Id.). Mr. John waited at home and eventually heard car doors shut. (Id.).

He went onto his porch and saw Mr. Willow, Ms. Hayden, and another male

approaching. (Id.). He shone the light mounted on his rifle at the three individuals and

told them to stay away. (Id.). Mr. John retreated into his home and shut the door. (Id.).

Mr. Willow opened the front door of Mr. John’s residence, coming at Mr. John. (Id.).

Mr. John shot Mr. Willow. (Id.).

A preliminary hearing was held on August 16, 2018. (R.A., p. 24). The State

presented the testimony of Detective Stedillie. He testified that on August 3, 2018,

officers responded to a 911 call and found a male lying on the floor of Mr. John’s trailer

home. (Tr. Preliminary H’rg., pp. 8-9). Three witnesses were identified: Melissa

Hayden, Nicolas Heims, and Sarah George, Mr. John’s mother. (Id.). Officers learned

that Ms. George and Mr. John’s 6-year-old son were home at the time of the incident.

(Id. at 11). Mr. John stated, “He rushed me. I shot him.” (Id.).

4
 Detective Stedillie testified that Mr. Heims reported the following. He was at the

Royal Inn with Ms. Hayden and Mr. Willow. (Id. at 12). Ms. Hayden received a text

message she found offensive, which she shared with Mr. Willow. (Id.). Mr. Willow used

Ms. Hayden’s phone to call Mr. John, trying to find out where Mr. John was. (Id.). Mr.

Willow repeated, “Space 75,” told Mr. Heims he was going to fight Mr. John, and Mr.

Willow, Mr. Heims, and Ms. Hayden got into Mr. Willow’s vehicle and drove toward

Mr. John’s home. (Id.). They parked “a little bit north of Space 75” (Mr. John’s trailer

was in Space 75), and walked toward Space 75. (Id.). Mr. Heims had a folding knife in

his hand. (Id. at 16-17). As they were walking towards Space 75, a flashlight shone on

them, and Mr. Heims could not see the individual standing on the porch and did not

realize the individual had a firearm. (Id. at 12-13). Mr. Willow and Mr. John exchanged

shouted words, but Mr. Heims did not know what they were. (Id. at 13, 20, 36).

Detective Stedillie testified Mr. Heims specifically said “No, nobody said anything about

a gun.” (Id.). Mr. Willow quickly ran up the front steps of the porch with an angry step,

and while Mr. Willow was standing on the porch, shots rang out from within the trailer.

(Id. at 13, 37). Mr. Willow was struck, causing him to fall into the trailer. (Id.). Heims

described the shots as being in “rapid succession.” (Id. at 16, 41-42, 56-57).

Detective Stedillie testified Ms. Hayden reported the following. She was at the

Royal Inn with Mr. Willow and Mr. Heims. (Id. at 17). Mr. John sent her a text message

which upset her, and showed it to Mr. Willow. (Id. at 18). Mr. Willow called Mr. John

using her phone and told Mr. John he intended to fight him. (Id.). Ms. Hayden, Mr.

5
Willow, and Mr. Heims drove toward Mr. John’s trailer and parked near Space 75. (Id. at

19). As the trio walked toward Mr. John’s home, they were illuminated by a flashlight.

(Id. at 19). Mr. John and Mr. Willow were yelling at each other, but she was not able to

discern what they were saying. (Id. at 20). When shots rang out, she took cover with Mr.

Heims between the front of the trailer and the front door of the trailer. (Id.). After the

shots stopped, she entered the trailer and found Mr. Willow’s body inside the trailer, face

down. (Id. at 21). She hit Mr. John in the head with a liquor bottle she was carrying and

attempted to render aid to Mr. Willow. (Id. at 21).

A search of the home was conducted, and officers located the rifle, which had 20

rounds still in its magazine, and one round in the chamber. (Id. at 22-23). There were

nine (9) spent shell casings located in the living room. (Id. at 23). An autopsy was

conducted of Mr. Willow, which determined that nine (9) rounds struck Mr. Willow: two

(2) to the upper right chest area, one (1) laterally through Mr. Willow’s right thigh, and

six (6) to his back. (Id. at 25). The text messages and phone call between Mr. John’s

phone and Ms. Hayden’s phone were determined to be the following:

J (3:44 a.m.): BTW, happy birthday.

J (3:44 a.m.): Whatever that means anymore

H (3:46 a.m.): Stay up, homie. All good. I’m on my own shit.

J (3:54 a.m.): I’ll blow you away, just like Wesley and Will, to
protect Jacob and Josiah and Naveah. Fuck, yeah. Test me, bitch. Come at
me. My kids are my life.

J (3:55 a.m.): I don’t fuck around!!!

6
 Call from Ms. Hayden’s phone to Mr. John’s phone (3:56 a.m.)
(approximately one (1) minute)

J (4:02-4:06 a.m.): Where you at, bitch? I’m waiting, motherfucker!!!

J (4:02-4:06 a.m.): That’s what I thought, motherfucker. You a bitch.

Fuck you. Fuck Melissa, that hoe. Fuck all you all. I’m ready.

(Tr. Preliminary H’rg., pp. 29-30).

Mr. John’s attorney argued Mr. John used deadly force in self-defense, it was a

lawful killing, and the charge against him therefore had to be dismissed. (Id. at 62-67).

Mr. John’s attorney specifically mentioned the language of subsection (f) of W.S. § 6-2-

602. (Id. at 65). The court noted the statute was new, and noted the amount of

information the court did not know which would have bearing on its decision. (Id. at 68-

69). The circuit court found probable cause to support the charge against Mr. John and

bound the case over to the district court. (R.A., p. 14).

Mr. John pled not guilty. (Tr. Arraignment, p. 6). Mr. John filed a “Motion for

Dismissal Pursuant to Wyoming Statute § 6-2-602 Or In the Alternative Enforcement of

Wyoming Statute § 6-2-602(f).” (R.A., pp. 164-73). The motion argued that § 6-2-

602(f) precluded prosecution of Mr. John, and that the State was estopped from

prosecuting Mr. John by virtue of W.S. § 6-2-602(f) . (Id.). Mr. John requested that the

case against him be dismissed, or in the alternative, that an injunction be ordered against

the State of Wyoming prohibiting the prosecution against him, a writ of prohibition be

entered, or that the court order relief as it deemed appropriate. (Id. at 172).

The State filed a response challenging Mr. John’s motion to dismiss. (R.A., pp.

7
206-28). The State claimed that because W.S. § 6-2-602 does not provide for a separate

pre-trial hearing before the district court, no hearing was warranted. (Id.). The State

argued that if a hearing was warranted, the facts of the case merited denial of the motion.

(Id.). The State claimed there was no evidence Mr. Willow unlawfully or forcibly

entered Mr. John’s home. (Id. at 210). The State asserted that pursuant to Wyoming’s

self-defense law, Mr. John was required to pursue reasonable alternatives prior to using

deadly force, and did not. (Id. at 211-12). Further, the State argued that Mr. John’s use

of deadly force was not reasonable because he continued to use deadly force after Mr.

Willow was disabled. (Id. at 212-14).

Mr. John replied to the State’s response and contested the State’s position that Mr.

Willow did not or was not in the process of unlawfully or forcibly entering Mr. John’s

house. (Id. at 324). Mr. John pointed out that Mr. Willow was not invited into the home,

and Mr. John shouted at Mr. Willow to “get back” before deadly force was used. (Id. at

324-25). Mr. John also contested the State’s position that he was required to, but did not,

consider reasonable alternatives. (Id. at 235-26). Mr. John took exception to the State’s

position that Mr. John continued to use deadly force after Mr. Willow was disabled,

pointing to evidence that the shots Mr. John fired were fired in “rapid succession.” (Id. at

326).

In response to the State’s position that no hearing was warranted, Mr. John pointed

out that he did not have an opportunity to meaningfully address the § 6-2-602(f)

immunity at the time of the preliminary hearing due to having no information at that time

8
other than the charging document and its supporting affidavit. (Id. at 328). He argued

that the State had evidence in its possession at the time of the preliminary hearing which

supported Mr. John’s self-defense claim and entitlement to § 6-2-602(f) immunity, but

chose not to present that evidence at the preliminary hearing. (Id. at 328-29). Mr. John

argued he was not able to effectively cross examine Detective Stedillie at the preliminary

hearing due to not having discovery, which resulted in the circuit court being unaware of

critical details that had direct bearing on Mr. John’s entitlement to immunity. (Id.).

The district court held a hearing on Mr. John’s motion to dismiss. The district

court undertook a thorough review of W.S. § 6-2-602 and Wyoming’s law of self-

defense. (Tr. Motion to Dismiss H’rg., pp. 9-12). The court found the language of the

statute to be unambiguous and provided a detailed explanation of the case law it

considered from other jurisdictions which have immunity statutes similar to Wyoming’s.

(Id. at 13-15, 19-22). The court found that Wyoming’s statute provides “additional

protections for persons justified in the use of reasonable defensive force.” (Id. at 15).

The court explained the statute necessarily carries with it certain procedural requirements

because, absent those procedures, the substantive guarantees found within the statute

would be meaningless. (Id. at 15-16). The court found the statute made clear that the

issue of immunity was to be determined “as early in the process as possible in order to

fully vindicate the statutory presumption and the potential for immunity.” (Id. at 18).

The court found that immunity is a concept entirely distinct from self-defense;

immunity is a “far greater right than that which is encompassed by an affirmative

9
defense.” (Id. at 16). The court noted that immunity can “stop a trial altogether,” while

an affirmative defense cannot. (Id.). The court specifically found that W.S. § 6-2-602(f)

represented a legislative decision to create a true immunity, rather than just an affirmative

defense. (Id.). The court emphasized that the statute’s intended protections “are of

course lost if a case is erroneously permitted to go to trial. The statute then basically has

no meaning.” (Id. at 17).

The district court pointed out that without a pretrial immunity hearing, in cases

involving the use of force such as Mr. John’s case, the State could make a showing of

probable cause without even addressing the issue of self-defense. (Id.). The court

acknowledged that this is precisely what took place in Mr. John’s case. (Id.). The court

noted that if a specific hearing is held on the issue of immunity, the State is then required

to “deal directly with the issue of self-defense.” (Id. at 18). The district court stated that

at the preliminary hearings stage, a great deal of information necessary for a full vetting

of the issue of W.S. § 6-2-602(f) immunity is not available to the defense. (Id. at 19).

The court noted defense counsel’s assertions that at the time of the preliminary hearing,

the State had not provided exculpatory information to the defense which was, in fact,

within the State’s control at that time. (Id.). The district court applied a burden of

probable cause, with the burden on the State to show the defendant was not statutorily

justified in the exercised use of force. (Id. at 20-22).

At the hearing, Detective Stedillie’s testimony as to Mr. Heims’ and Ms. Hayden’s

statements differed from that provided at the preliminary hearing. Detective Stedillie

10
testified Mr. Heims said that after Mr. Willow saw the text message which upset Ms.

Hayden, “all hell broke loose.” (Id. at 68-70). Mr. Willow was mad. (Id. at 71). Mr.

Heims reported that when the trio parked, they parked at spot 69, rather than in front of

Mr. John’s trailer, because they did not want anyone seeing them, “not before, not after.”

(Id. at 73-74). They approached Mr. John’s trailer “with an angry step.” (Id. at 74). Mr.

Heims reported that when he heard shouting between Mr. John and Mr. Willow, Mr. John

said, “stay back” or “get back” or “get outta here.” (Id. at 26, 79). Mr. Heims did see

that Mr. John was holding a gun. (Id. at 83-85). Mr. Heims reported that Mr. John had

stepped back into the house before the first shot rang out. (Id. at 81).

Detective Stedillie testified Ms. Hayden made the following statements. When the

trio parked their vehicle, it was “a little ways away” from Mr. John’s trailer. (Id. at 29).

She knew where Mr. John lived because she dated him in the past. (Id. at 72). Ms.

Hayden provided directions to Mr. Willow on how to get to Mr. John’s home. (Id.).

When they parked, they parked at spot 69, which was quite a ways away from Mr. John’s

spot 75. (Id. at 73). Ms. Hayden carried an empty liquor bottle because she intended to

hit Mr. John with it, and then whatever else happened, happened. (Id. at 74-75). She

expected that Mr. John and Mr. Willow would fight after she hit Mr. John with the liquor

bottle. (Id. at 74-76). Ms. Hayden saw Mr. John had a gun, and thought Mr. Willow ran

to take the gun from Mr. John before shots rang out. (Id. at 85). She reported that Mr.

Willow “didn’t back down.” (Id. at 85-86). Ms. Hayden said Mr. Willow ran past her,

and up the steps to the house. (Id. at 90).

11
 Detective Stedillie testified Mr. John said he received a phone call from Mr.

Willow. (Id. at 31-32). Mr. Willow told Mr. John he was coming to assault or kill Mr.

John. (Id. at 32, 63). While on his porch, Mr. John saw Mr. Willow, Ms. Hayden, and a

male he did not know. (Id. at 32). He shone the light mounted on his rifle and told them

to stay away. (Id.). Mr. John told Mr. Willow to “back the fuck up, don’t you come

here” three (3) times. (Id. at 41). Mr. John retreated into his house and slammed the

door. (Id. at 32, 39). Mr. Willow came through the door, kicking it open, and came at

Mr. John. (Id. at 32, 40). Mr. John had just enough time to take the safety off the rifle

before shooting Mr. Willow. (Id. at 32, 39-40). Mr. Willow was in Mr. John’s house

when Mr. John shot him. (Id. at 90). Mr. John spoke of his knowledge that Mr. Willow

was a dangerous man and “[h]e’s not someone to fuck around with.” (Id. at 39).

Detective Stedillie admitted there was no evidence Mr. Willow was invited into

Mr. John’s home. (Id. at 64). He testified Ms. Hayden was intoxicated to an unknown

level, and Mr. Willow was intoxicated to a 0.20 BAC. (Id. at 65-66). Detective Stedillie

also testified that none of the text messages which were sent by Mr. John after the phone

call between Mr. John’s phone and Ms. Hayden’s phone were received or read by Ms.

Hayden, Mr. Willow, or Mr. Heims. (Id. at 67-68).

The district court found the State failed to establish by probable cause that Mr.

John’s use of force was not statutorily justified, and granted his motion to dismiss due to

Mr. John being immune from prosecution pursuant to W.S. § 6-2-602(f). (Id. at 119-20).

The district court entered its written order on March 1, 2019. (R.A., pp. 348-50).

12
 ARGUMENT

I. WHETHER THE DISTRICT COURT’S PRE-TRIAL

HEARING AND SUBSEQUENT DISMISSAL OF THE
CASE AGAINST MR. JOHN CONSTITUTED A
PROPER EXERCISE OF THE DISTRICT COURT’S
POWERS?

Standard of Review.

The State challenges the district court’s authority to hold the pre-trial immunity

hearing, as well as the court’s authority to dismiss the case against Mr. John. A challenge

to the court’s authority to act presents a question of subject matter jurisdiction. “The

subject matter jurisdiction of a court is a question of law that is reviewed de novo.”

Brown v. State, 2008 WY 9, ¶ 12, 175 P.3d 1158, 1162 (Wyo. 2008).

Argument.

The district court’s dismissal of the case against Mr. John was a proper exercise of

the judiciary’s obligation to satisfy itself of the right of the State to go forward with

prosecution pursuant to Wyoming Statute § 6-2-602(f). The district court maintains an

ongoing obligation to confirm it has jurisdiction to proceed in any matter pending before

it. Wyoming Statute § 6-2-602(f) is jurisdictional in nature, and the district court

properly held a hearing to determine whether, pursuant to the terms of W.S. § 6-2-602(f),

the case was properly before the court.

The district court’s decision to hold a hearing to make this determination did not

violate the separation of powers doctrine because the court has an obligation to assess

whether the State has a right to move forward with a prosecution, and to control legal

13
matters in cases pending before the court. Exercise of this power does not infringe upon

the executive branch’s exclusive authority to initiate, control, or choose to discontinue

prosecution.

Contrary to the State’s argument, the district court’s creation of a procedure to

effectuate the intent and directive of W.S. § 6-2-602(f) did not constitute an

overextension of the statute. The judiciary has inherent and Constitutionally-granted

authority to prescribe rules of procedure and to manage the cases pending before the

court. No statutory authority need exist to authorize the judiciary to exercise this power.

The Legislature’s decision not to spell out a procedure for handling claims under W.S. §

6-2-602(f) constitutes legislative acknowledgement of well-established law that the

judiciary is solely responsible for the creation of procedural rules.

A. The District Court’s Hearing Pursuant to Wyoming Statute § 6-2-602(f) and

Decision to Dismiss the Case Against Mr. John Constituted an Exercise of the
Court’s Obligation to Determine Whether It Had Jurisdiction Over the Matter

Courts have an ongoing obligation to ensure jurisdiction is proper in any matter

pending before the court. “Every court has the duty to ensure the proper exercise of its

jurisdiction. The court must raise this issue sua sponte if the parties do not.” Lee v.

State, 2007 WY 81, ¶ 5, 157 P.3d 947, 948–49 (Wyo. 2007) (citing Estate of Fulmer v.

First Wyoming Bank, Sheridan, 761 P.2d 658, 660 (Wyo. 1988)).

Statutory immunity can either be construed as an avoidance/affirmative defense,

or as jurisdictional in nature. Pickle v. Bd. of Cty. Comm’rs of Cty. of Platte, 764 P.2d

262, 263-64 (Wyo. 1988). Immunities which protect a party from the burden of

14
defending a lawsuit are jurisdictional in nature, and once the immunity is found to apply,

it creates a jurisdictional defect barring further prosecution of the case. Id. On the other

hand, immunities that are affirmative defenses do not bar prosecution of the case, and

merely create circumstances under which liabilities may be avoided. Id. An affirmative

defense is “a direct or implicit admission of plaintiff's claim and assertion of other facts

which would defeat a right to recovery.” Id. at 264 (quoting Texas Gulf Sulphur

Company v. Robles, 511 P.2d 963, 965 (1973)). Jurisdictional immunities may be raised

at any time, and cannot be waived. Pickle, 764 P.2d at 263-64. Jurisdictional immunities

constitute limitations on the power of the judiciary to entertain particular actions. Id.

(discussing legislative immunity as a limitation on the judiciary’s power to infringe on

the duties of the legislature).

The immunity created by W.S. § 6-2-602(f) is a jurisdictional immunity. The

statute reads:

(f) A person who uses reasonable defensive force as defined by

subsection (a) of this section shall not be criminally prosecuted for that use
of reasonable defensive force.

W.S. § 6-2-602. When a statute is clear and unambiguous, the Court need not engage in

the application of any of the rules of statutory interpretation. Seteren v. State, 167 P.3d

20, 22 (Wyo. 2007) (citing Harris v. State, 137 P.3d 124, 128-29 (Wyo. 2006)). “If a

statute is clear and unambiguous, we give effect to the plain language of the statute.”

Sinclair Oil v. Wyoming Dep’t of Revenue, 2010 WY 122, ¶ 7, 238 P.3d 568, 571 (Wyo.

2010) (citing Wyoming Dep’t of Transportation v. Haglund, 982 P.2d 699, 701 (Wyo.

15
1999); State ex rel. Wyo. Dep’t of Revenue v. Union Pacific R.R. Co., 2003 WY 54, ¶ 12,

67 P.3d 1176, 1182 (Wyo. 2003). “A statute is unambiguous if its wording is such that

reasonable persons are able to agree as to its meaning with consistency and predictability.

BP America Production Co. v. Department of Revenue, 2006 WY 27, ¶ 20, 130 P.3d 438,

464 (Wyo. 2006). The statute is not susceptible of a reading other than its clear and

obvious meaning: if a person uses the reasonable defensive force as defined in

subsection (a) of the statute, they shall not be prosecuted. The statute is clear and

unambiguous.

The statute makes use of the word “shall,” which directs, rather than permits, and

connotes an absence of discretion. “In particular, we have repeatedly found the word

“shall” in a statute to be mandatory. Stutzman v. Office of Wyo. State Eng’r, 2006 WY

30, ¶ 17, 130 P.3d 470, 475 (Wyo. 2006) (“Where the legislature uses the word ‘shall,’

this Court accepts the provision as mandatory and has no right to make the law contrary

to what the legislature prescribed.”); see also Merrill v. Jansma, 2004 WY 26, ¶ 42, 86

P.3d 270, 288 (Wyo. 2004); and In re DCP, 2001 WY 77, ¶ 16, 30 P.3d 29, 32 (Wyo.

2001). “The choice of the word ‘shall’ intimates an absence of discretion.” In re LePage,

2001 WY 26, ¶ 12, 18 P.3d 1177, 1180 (Wyo. 2001).” In re MN, 2007 WY 189, ¶ 5, 171

P.3d 1077, 1080 (Wyo. 2007). The legislature’s use of the word “shall” in § 6-2-602(f)

therefore expresses the legislature’s intent to offer defendants mandatory protection from

criminal prosecution.

16
 The statute directs that if a defendant uses reasonable force, he shall not be

prosecuted. W.S. § 6-2-602(f). “Prosecution” means, “A criminal proceeding in which

an accused person is tried.” Black’s Law Dictionary, 1258 (8th ed. 2004). The plain

language of the statute therefore dictates that if a defendant uses reasonable force,

criminal proceedings are barred altogether. By barring “criminal prosecution,” the statute

protects a defendant from the process of being “tried.” The plain language of the statute

makes clear that the determination as to whether W.S. § 6-2-602(f) provides a defendant

with immunity should be made before a defendant is “tried” – the determination is a pre-

trial determination.

The plain language of the statute makes clear it is intended to operate as a bar to

prosecution; it is a true immunity, and it protects a party from the burdens of defending a

lawsuit. The State does not dispute that the statute is intended to operate as a complete

bar to prosecution. (Brief of Petitioner, pp. 23-24, 29). Because the statute is meant to

protect a party from the burdens of defending a lawsuit, it is a jurisdictional immunity.

Pickle, 764 P.2d at 263-64. Therefore, if the statute is found to apply to a particular

defendant, it creates a jurisdictional defect barring further prosecution of the case. Id.

Because jurisdictional immunities, when they apply, create jurisdictional defects,

jurisdictional immunities are matters to be determined by the district court as a matter of

law.

It is fundamental, if not axiomatic, that, before a court can render any

decision or order having any effect in any case or matter, it must have
subject matter jurisdiction. Jurisdiction is essential to the exercise of
judicial power. Unless the court has jurisdiction, it lacks any authority to

17
 proceed, and any decision, judgment, or other order is, as a matter of law,
utterly void and of no effect for any purpose. Subject matter jurisdiction,
like jurisdiction over the person, is not a subject of judicial discretion.
There is a difference, however, because the lack of jurisdiction over the
person can be waived, but lack of subject matter jurisdiction cannot be.
Subject matter jurisdiction either exists or it does not and, before
proceeding to a disposition on the merits, a court should be satisfied that it
does have the requisite jurisdiction.

Mut. of Omaha Ins. Co. v. Blury-Losolla, 952 P.2d 1117, 1119–20 (Wyo. 1998) (citing

Boyd v. Nation, 909 P.2d 323, 325 (Wyo. 1996) (quoting United Mine Workers of

America Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1283–84 (Wyo. 1989))).

The State takes the position that simply because the immunity established in W.S.

§ 6-2-602(f) bars prosecution, the determination of whether the immunity applies is

within the exclusive purview of the executive department. (Brief of Petitioner, pp. 20-

25). This perspective ignores the district court’s obligation to ensure, at every stage, that

it has jurisdiction over the matter pending before it. Lee, 2007 WY at ¶ 5, 157 P.3d at

948 (“Every court has the duty to ensure the proper exercise of its jurisdiction.”).

Because jurisdictional immunities, when they apply, deprive the court of jurisdiction

altogether, the district court has not only the authority, but the obligation to evaluate

whether W.S. § 6-2-602(f) applies when an issue as to immunity is raised.

In Mr. John’s case, the district court properly determined that an issue existed as to

whether Mr. John might be jurisdictionally immune from prosecution when Mr. John

filed his motion to dismiss. (R.A., pp. 164-73). Having made the determination that the

issue existed, the court held a hearing to vet the issue. (Tr. Motion to Dismiss H’rg., pp.

4-121). Having been presented with the information necessary to make its determination,

18
the district court then made its determination, as a matter of law, that Mr. John was

entitled to immunity. (Id. at 119-20). The district court’s holding in this regard was,

fundamentally, a determination that because a jurisdictional immunity applied, the court

no longer had jurisdiction to entertain the action. The court then undertook the only

action available to it in such a circumstance: it ordered dismissal. (Tr. Motion to

Dismiss H’rg., p. 120; R.A. 348-50). The district court did not err in doing so.

B. The District Court’s Hearing Did Not Improperly Violate the Doctrine of
Separation of Powers

The district court’s decision to hold a hearing to determine whether the case

against Mr. John had to be dismissed pursuant to W.S. § 6-2-602(f) did not improperly

infringe on those powers and authorities exclusively granted to the executive branch.

While the executive branch does have the exclusive authority to decide whether to charge

an individual with a crime, and once that prosecution has been initiated, to determine

whether to continue or discontinue with the prosecution, the judiciary has the power to

determine legal matters presented by virtue of the case being pending before the court.

Billis v. State, 800 P.2d 401, 417-19, 423 (Wyo. 1990); Bi-Rite Package, Inc. v. District

Court of Ninth Judicial Dist. Of Fremont County, et al., 735 P.2d 709, 714 (Wyo. 1987).

The judiciary also has inherent powers that relate to the management of cases brought

before it. Bi-Rite Package, 735 P.2d at 714; State v. Naple, 2006 WY 125, ¶ 23, 143 P.3d

358, 365 (Wyo. 2006).

The State argues the district court infringed on the executive branch’s exclusive

authority to make charging decisions and to determine whether to proceed with criminal

19
charges. (Brief of Petitioner, pp. 20-21). The State argues that the only power the

judiciary has over the prosecutor’s charging decision is to determine whether probable

cause supports the charge or not. (Id. at 22). The State argues that because W.S. § 6-2-

602(f) did not include a procedural mechanism within the statute, any judicial action on

the statute constituted an impermissible infringement on the executive branch’s authority

to decide whether to initiate prosecution or not. (Id. at 23).

In the exercise of their power to determine legal issues in matters pending before

them, courts have the authority to create procedures. The legislature’s choice not to

legislate a procedure for handling immunity claims under W.S. § 6-2-602(f) represents an

acknowledgement of the judiciary’s power to manage the matters pending before it, as

well as the judiciary’s constitutional power to establish rules of procedure.

In Hall v. State, 851 P.2d 1262 (Wyo. 1993), a question of immunity from

prosecution was raised by motion of the defendant. Hall v. State, 851 P.2d 1262, 1265

(Wyo. 1993). The court held a hearing to determine whether the prosecutor granted

immunity to the defendant. Id. The district court established the burdens which would

apply to each party and established the procedure by which it would determine whether

the parties met those burdens or not. Id. The matter was appealed to the Wyoming

Supreme Court through a petition for writ of certiorari. Id. at 1265-66. After

determining the prosecuting attorney had no authority to grant immunity to a witness

(such authority resting with the district court), the Wyoming Supreme Court

acknowledged that no statute applied to the situation presented. Id. at 1266-68.

20
Acknowledging there was no statutory procedure prescribed to handle the issue

presented, the Court created a procedure and established the burdens each party must

meet when an issue of transactional immunity is raised. Id. at 1268. The procedure and

burdens established in Hall were reiterated and applied in Russell v. State, 851 P.2d 1274

(Wyo. 1993).

Both of these cases explicitly refute the State’s contentions that the only power the

judiciary has over a charge once the executive branch makes the decision to initiate

prosecution is to determine whether probable cause supports the charge or not. (Brief of

Petitioner, pp. 18-30). These cases also directly refute the State’s position that the

absence of a statutory procedure for determination of an immunity compels the

conclusion that any judiciary action in that regard constitutes an improper usurpation of

the powers exclusively given to the executive department to determine whether to initiate

criminal charges or not.

The State presumes the executive branch has unfettered, exclusive authority to

make its own determination as to whether immunity exists in any given case or not, and

improperly presumes no check exists anywhere on that authority. The State assumes the

executive branch is end-all, be-all when it comes to the determination of whether a

statutory immunity applies or not. That is, if the State determines immunity pursuant to §

6-2-602(f) applies, it does. If the State determines immunity does not apply, it does not,

and the judiciary has absolutely no power over a determination of immunity once the

State has made its decision. (Brief of Petitioner, pp. 20-25, 27-28).

21
 These presumptions completely ignore the requirement, discussed in Argument

I(A), supra, that the judiciary always satisfy itself that it has jurisdiction to entertain a

matter pending before it. They also ignore the judiciary’s obligation to determine legal

matters presented to it in the course of cases brought before the court. Billis, 800 P.2d at

423.

In the course of deciding whether Mr. John was entitled to the immunity spelled

out in W.S. § 6-2-602(f), the district court did not improperly infringe on powers reserved

to the executive branch. The district court did not arbitrarily prevent an otherwise-legally

supported charge from being prosecuted. The district court made a legal determination

on an issue presented to it which existed by virtue of the case brought before it by the

executive branch.

That decision was not only supported by specific statutory authority – it was

dictated by statute. The legislature created a jurisdictional immunity in W.S. § 6-2-

602(f), and the district court was bound to make a determination (once it was aware of

the potential jurisdictional defect) of whether it had jurisdiction to continue to entertain

the matter before it or not. The district court was exercising its independent authority –

and indeed, obligation – to determine whether it had the power to act on a matter pending

before it.

The State’s position that the executive department is vested with exclusive

authority to determine whether W.S. § 6-2-602(f) immunity exists or not would result in a

violation of the doctrine of separation of powers. The State would give exclusive

22
authority over the determination of jurisdictional immunity to the executive branch. Such

a reading would result in an infringement by the executive branch onto the judiciary’s

exclusive authority to determine jurisdiction. The jurisdiction of the courts is established

in the Wyoming Constitution. Wyo. Const. art. V. Whether a particular court has

jurisdiction over a matter ultimately boils down to an issue of constitutional

interpretation. The judiciary is the final authority on issues of constitutional

interpretation. Gordon v. State by & through Capitol Bldg. Rehab., 2018 WY 32, ¶ 55,

413 P.3d 1093, 1109 (Wyo. 2018).

Under the State’s reading of each branch’s powers as they relate to W.S. § 6-2-

602(f), the judiciary’s exclusive power to determine jurisdiction would be entirely

usurped by the executive branch’s determination that jurisdictional immunity under § 6-

2-602(f) does not apply. This Honorable Court should decline the State’s offer to permit

the executive branch to completely usurp the judiciary’s independent obligation and

power to determine jurisdiction. Section 6-2-602(f) creates a jurisdictional immunity that

must be ultimately determined by the judiciary. At the trial level, that determination rests

with the district court, and the district court in Mr. John’s case did not improperly

overstep its powers in holding a hearing to make that determination.

C. The District Court was Not Required to Assess the Applicability of Wyoming
Statute § 6-2-602(f) Solely Through the Preliminary Hearing

The district court was not required to assess the applicability of W.S. § 6-2-602(f)

to Mr. John’s case solely through the preliminary hearing procedures and solely based

upon the evidence presented at the preliminary hearing. The issue of W.S. § 6-2-602(f)

23
immunity and the issue of probable cause to support a charge are two distinct matters,

both of which require judicial determination.

The State argues that the judiciary’s only involvement with a charge following the

executive branch’s decision to initiate a prosecution is the probable cause determination

made at the preliminary hearing. (Brief of Petitioner, p. 26). The State also argues that

once the probable cause determination has been made, the judiciary has no further role in

determining questions of contested facts. (Id. at 27). The State posits that the absence of

a procedural mechanism in W.S. § 6-2-602(f) constitutes acknowledgement from the

legislature of the preliminary hearing as the pre-existing check to the executive branch’s

discretion to charge crimes. (Id.). The State claims that once a probable cause

determination is made at the preliminary hearing, the issue of W.S. § 6-2-602(f)

immunity should become a question of fact for the jury. (Id. at 29-30).

Pursuant to Rule 5.1 of the Wyoming Rules of Criminal Procedure, the circuit

court makes a determination as to whether the charge against a defendant is supported by

probable cause. If it is, the case is bound over to the district court. If it is not, the charge

shall be dismissed. W.S. § 7-8-105; Wyo. R. Crim. P. 5.1. Neither the applicable Rule

nor the statute providing for a probable cause determination at the preliminary hearing

mention a requirement that the circuit court make an immunity determination. Id.

The constitutional purpose of a preliminary hearing is to obtain a determination by

a neutral, detached fact finder that there is probable cause to believe a crime has been

committed and that the defendant committed it. The only purpose of a preliminary

24
hearing is to make a determination as to whether the charge against the defendant is

supported by probable cause or not. Wilson v. State, 655 P.2d 1246, 1250 (Wyo. 1982).

Issues which fall outside of this very limited determination are not addressed at the

preliminary hearing. Trujillo v. State, 880 P.2d 575, 581-83 (Wyo. 1994). An immunity

determination pursuant to W.S. § 6-2-602(f) would fall entirely outside the scope of a

preliminary hearing.

Contrary to the State’s assertions that the judiciary’s only involvement with a

charge following the executive branch’s decision to initiate a prosecution is the probable

cause determination made at the preliminary hearing, there are numerous circumstances

under which the judiciary has a role in the progress of a case following the preliminary

hearing. Pursuant to Rule 12 of the Wyoming Rules of Criminal Procedure, a

prosecution may be challenged by motion based upon defects in its institution. Wyo. R.

Crim. P. 12(b)(1). This determination is a judicial determination and directly affects the

prosecution of the case. A party may also challenge the charging document based upon a

defect in it, and this is also a judicial determination. Wyo. R. Crim. P. 12(b)(2).

Proceedings may be suspended entirely on the basis of mental illness or deficiency

pursuant to Wyoming Rule of Criminal Procedure 12(c). Wyo. R. Crim. P. 12(c).

Whether the proceedings should be suspended on this basis is, again, a judicial

determination. The idea that the district court would make a determination as to the

immunity provided by W.S. § 6-2-602(f) – and do so outside of the preliminary hearing –

25
would be in line with the other determinations district courts regularly make in the course

of criminal proceedings.

Also contrary to the State’s contentions, the judiciary, in fact, regularly makes

factual findings on pre-trial matters. The most obvious example is in proceedings related

to motions to suppress. Wyoming Rule of Criminal Procedure 12(b)(3) permits the

filling of a motion to suppress. Wyo. R. Crim. P. 12(b)(3). Motions to suppress are

included among those defenses, objections, or requests which are capable of

determination without trial. Id. Motions to suppress are fact-intensive inquiries.

O’Boyle v. State, 2005 WY 83, ¶ 46, 117 P.3d 401, 414 (Wyo. 2005).

To allow its determination on a motion to suppress, the district court hears

evidence, makes determinations on sometimes contested facts, and makes a legal decision

based upon those factual findings. Id.; Wyo. R. Crim. P. 12(f), (j). Rule 12 explicitly

recognizes the fact that the district court will be called upon to make factual

determinations. Rule 12(f) states, in pertinent part, “Where factual issues are involved in

determining a motion, the court shall state its essential findings on the record.” The

State’s contention that the only time during a prosecution that the judiciary is permitted to

make factual determinations is completely without basis in law, and is directly

contradicted by Rule 12 of the Wyoming Rules of Criminal Procedure.

Most directly on point, when an issue arose as to whether the prosecutor gave a

defendant transactional immunity (and whether the prosecutor had the authority to do so)

in Hall v. State, 851 P.2d 1262 (Wyo. 1993), the Wyoming Supreme Court explicitly held

26
the trial court should hold a hearing at which the prosecution was burdened with

establishing by a preponderance of the evidence that no immunity was extended to the

defendant (or forfeiture or limitation thereof). Hall, 851 P.2d at 1268-69. The same

procedure was sanctioned in Russell v. State, 851 P.2d 1274 (Wyo. 1993). Contrary to

the State’s assertions that the judiciary may not make factual determinations aside from a

probable cause determination at the preliminary hearing, district courts were directly

tasked in Hall and Russell with making determinations very similar to the determination

made by the district court in Mr. John’s case.

Requiring the circuit court to make the determination as to transactional immunity

at the preliminary hearing stage in Hall and Russell was not even considered in the

Wyoming Supreme Court’s opinion, and for good reason. Preliminary hearings have the

very limited purpose of allowing the circuit court to make probable cause determinations.

Issues outside of probable cause, such as motions to dismiss and motions to suppress, are

properly permitted to be raised and handled at later stages of the proceedings when

discovery has been produced and both parties have sufficient information to raise and

litigate the issues.

The State implies that the preliminary hearing is the proper forum for

determination of the jurisdictional immunity provided in W.S. § 6-2-602(f) because

implicit in the probable cause determination is a finding that the defendant is not immune

from prosecution under W.S. § 6-2-602(f). (Brief of Petitioner, pp. 26-30). The State

implies that a finding of probable cause to support a criminal charge includes within it a

27
finding that the defendant did not use the reasonable defensive force protected by W.S. §

6-2-602(f). (Id.). The State uses the circular logic that if a defendant was entitled to

W.S. § 6-2-602(f) immunity, the State would not have charged them in the first place, or

alternatively, the circuit court would not have been able to find probable cause that the

defendant committed the charged crime. (Id.). This reasoning is flawed because it

presumes the existence of probable cause and the existence of a jurisdictional immunity

are mutually exclusive concepts. However, simply because probable cause supports a

charge does not mean the charge cannot be independently barred by virtue of a

jurisdictional immunity.

A probable cause determination involves a judicial determination that “‘the facts

and circumstances . . . (are) sufficient in themselves to warrant a man of reasonable

caution in the belief that’ an offense has been or is being committed” and that the

defendant committed it. Raigosa v. State, 562 P.2d 1009, 1013 (Wyo. 1977); Wyo. R.

Crim. P. 5.1(b). In Mr. John’s case, that determination involved the circuit court deciding

whether there was probable cause to believe:

(1) On or about August 3, 2018;

(2) In Natrona County, Wyoming;

(3) Mr. John;

(4) Purposely;

(5) And with premeditated malice;

(6) Killed Wesley Willow.

28
W.S. § 6-2-101; Wyo. Pattern Jury Instr. 21.01A. Statutory presumptions aside,

determining whether Mr. John was entitled to the immunity provided in W.S. § 6-2-

602(f) involved determining whether:

(1)Mr. John;

(2)Used defensive force against Wesley Willow;

(3)That Mr. John and a reasonable person in like circumstances would

judge necessary to prevent imminent death or serious bodily injury ;

(4) To Mr. John or another person.

W.S. § 6-2-602(f). The difference between these two determinations is plain. Obviously,

a determination about whether probable cause supported the charged crime and whether

Mr. John might be entitled to W.S. § 6-2-602(f) immunity involve two entirely different

inquiries with entirely different elements. The State’s presumption that a finding of

probable cause to support a first degree murder charge necessarily involves a finding that

immunity does not apply is belied by the very elements involved in each of the

determinations.

Additionally, it is often the case that the information necessary for the defendant to

meaningfully litigate his entitlement to W.S. § 6-2-602(f) is not available to the defense

until after district court arraignment. Rule 12(d) of the Wyoming Rules of Criminal

Procedure permits the district court, “at the time of arraignment or as soon thereafter as

practicable,” set a time for the making of requests. Wyo. R. Crim. P. 12(d). The

referenced “requests” include the defendant’s standard discovery requests made pursuant

to Rule 16 of the Wyoming Rules of Criminal Procedure. Wyo. R. Crim. P. 16.

29
 It is customary for the defendant to have available to him only the charging

document and its supporting affidavit at the time of the preliminary hearing. Usually, it

is not until after district court arraignment that a defendant begins to receive discovery

from the State. In fact, that is what took place in Mr. John’s case:

Defense Counsel: Now, they had a prelim but, as I pointed out there, if we
don’t have any discovery, it wasn’t a meaningful 6-2-602 hearing.

***

Defense Counsel: . . . [B]ecause, at that time, as I pointed out in my reply,

there were so many things that the State did not bring up and I was unaware
of because I – all I had was that information. So there’s no way I could
meaningfully cross on whether or not, you know, what happened that night
versus just take on face value what the State said, which turned out later to
be totally different when you look at all the interviews.

***

Court: There is no requirement that discovery be provided prior to

preliminary hearing. And, as Mr. Cotton has mentioned, almost routinely,
defense attorneys merely have a charging document and a supporting
affidavit from law enforcement. So much is unknown at the preliminary
hearing stage.

(Tr. Motion to Dismiss H’rg., pp. 5, 7, 18). Mr. John’s case is a perfect example of a

situation in which a circuit court may find probable cause to support a charge while the

immunity provided for in W.S. § 6-2-602(f) simultaneously co-exists. The district court

noted:

Without a pretrial immunity hearing, in cases that involve the use of force
such as this one, the State could make an evidentiary showing of probable
cause without ever addressing the issue of self-defense. And that is what,
in the pleadings, the defense alleges happened at the preliminary hearing
stage in this case. That the State made their probable cause showing to

30
 support their charge and never addressed or the defense wasn’t allowed to
address the issue of self-defense.

(Tr. Motion to Dismiss H’rg., p. 17).

In Mr. John’s case, the circuit court determined probable cause supported the

charge. (Tr. Preliminary H’rg. (Unredacted), p. 69). The circuit court specifically

declined to decide the issue of whether W.S. § 6-2-602(f) immunity applied because it

did not have sufficient information available to make that determination. (Id. at 68-69).

The distinct issue of statutory immunity also existed, and it existed entirely independent

of the issue of whether probable cause supported the charge or not. Acting under its

power to determine legal matters which are presented in a case pending before it, the

district court in Mr. John’s case made the determination that notwithstanding the

existence of probable cause to support the charge, the immunity created by W.S. § 6-2-

602(f) applied to Mr. John. (Tr. Motion to Dismiss H’rg., p. 120; R.A., pp. 348-50). The

existence of this immunity was a legal issue which had to be judicially determined, much

like judicially-determined immunity presented in Hall v. State, 851 P.2d 1262 (Wyo.

1993) and Russell v. State, 851 P.2d 1274 (Wyo. 1993).

To require that statutory immunity pursuant to W.S. § 6-2-602(f) be raised and

determined at the preliminary hearing stage runs contrary to existing case law in which

other immunities have been addressed, and runs afoul of existing criminal procedure

rules which permit for pre-trial, post-preliminary-hearing disposition of issues involving

fact by the district court. The district court did not err in entertaining Mr. John’s motion

to dismiss on the basis of W.S. § 6-2-602(f) immunity, and properly held a hearing where

31
evidence was considered so that the court could make a pre-trial determination as to

whether Mr. John was entitled to immunity or not. The district court’s decision to do so

gave full effect to the plain language of W.S. § 6-2-602(f), comported with the Wyoming

Rules of Criminal Procedure (Rule 12, in particular), and was in line with the concept of

a district court pre-trial hearing contemplated for another type of immunity in Hall and

Russell. Mr. John was not legally required to raise and fully litigate his W.S. § 6-2-602(f)

motion exclusively through preliminary hearing procedures, and the district court was not

required to evaluate his motion exclusively through the lens of the preliminary hearing

and the evidence presented therein.

D. The District Court Had the Authority to Create a Procedure to Effectuate the
Dictates of Wyoming Statute § 6-2-602(f)

The district court properly exercised its power to manage the case before it when it

held a hearing and created a procedure with which to analyze the applicability of W.S. §

6-2-602(f) to Mr. John’s case. The judiciary has the inherent power to manage the cases

that are brought before it. Bi-Rite Package, 735 P.2d at 714. This power involves

“activity so fundamental to the essence of a court as a constitutional tribunal that to divest

the court of absolute command within this sphere is really to render practically

meaningless the terms ‘court’ and ‘judicial power.’” Id. (citing Eash v. Riggins Trucking,

Inc., 757 F.2d 557, 562, 77 A.L.R.Fed. 751 (3d Cir. 1985)). In other words, inherent

powers “include those powers, although not explicitly granted to the court by law, are

necessary to the exercise of the court’s other powers.” Naple, 2006 WY at ¶ 14, 143 P.3d

at 363.

32
 The judiciary has an additional inherent power “described as necessary to the

efficient functioning and prompt and just disposition of litigation and business of the

court.” Id. Also, the judiciary has the inherent power “to take such action as is useful to

the efficient functioning of the court.” Id. The concept of inherent power has been

described as “nebulous, and its bounds as ‘shadowy,’” and “not possible to locate with

exactitude . . . .” Bi-Rite Package, 735 P.2d at 714 (citing Eash v. Riggins Trucking, Inc.,

757 F.2d 557, 561-62 (3d Cir. 1985)).

The power at issue in Mr. John’s case, and the power challenged by the State, is

the power of the district court to hold a hearing and consider evidence to make a

determination about whether a statute directly bearing on the district court’s jurisdiction

applies or not. The power of the judiciary to hold a hearing so that the necessary

evidence may be presented by the parties for the court to make its determination is basic

and fundamental. If district courts are divested of the power to hold hearings to

determine whether jurisdiction is proper or not, the term “court” would be rendered

practically meaningless.

The concept pressed by the State that once the State determines W.S. § 6-2-602(f)

immunity does not apply and chooses to initiate a criminal prosecution, the judiciary has

no power beyond a probable cause determination on the underlying crime, would render

meaningless the concept of judicial process in terms of the immunity created by W.S. §

6-2-602(f). It would divest the judiciary entirely of the ability to make the statutorily-

required determination under W.S. § 6-2-602(f) as to whether the matter is even properly

33
before the court or not. It would render any judicial action on the case essentially

meaningless because the court would be stripped of the one way it has to make a

meaningful determination of its jurisdiction when an issue of W.S. § 6-2-602(f) immunity

is raised – a pre-trial hearing.

Providing a procedural mechanism for the determination of motions made

pursuant to W.S. § 6-2-602(f) is necessary in order to preserve the efficient functioning

and prompt disposition of the business of criminal cases before the court. The power to

hold a hearing and consider evidence on the issue of jurisdiction is necessary and

fundamental to the court’s ability to exercise its other powers: the court’s power to make

decisions about the legal propriety of a charge proceeding to a jury trial; the court’s

power to entertain the case at all; the court’s power to empanel a jury; and ultimately, the

court’s power to pass judgment and sentence upon conviction. None of these powers can

be exercised unless a meaningful determination is made as to the court’s jurisdiction.

And a meaningful determination as to the court’s jurisdiction in terms of jurisdictional

immunity cannot be made absent a hearing and the consideration of evidence.

The district court also had the authority to enact procedures within the hearing in

order to determine immunity. After a prosecution is initiated, the judiciary has the power

“to adjudicate legal issues concerning the criminal procedures that necessarily attend to

the criminal proceeding, and to adjudicate substantive legal issues raised by the litigants.”

Billis, 800 P.2d at 423. The creation of a procedure within which to make the

determination of W.S. § 6-2-602(f) immunity constitutes a proper exercise of this judicial

34
power. It was the district court’s duty to prescribe the procedure to be followed in

making the W.S. § 6-2-602(f) determination so that the court could adjudicate the legal

issue pending before it: whether Mr. John was entitled to immunity from prosecution.

The Wyoming Supreme Court has acknowledged the inherent judicial power to

prescribe rules of practice and procedure. White v. Fisher, 689 P.2d 102, 106–07 (Wyo.

1984); Barnes v. State, 642 P.2d 1263, 1266 (Wyo. 1982); Petersen v. State, 594 P.2d

978, 982 (Wyo. 1979) (citing State ex rel. Frederick v. District Court, Wyo., 399 P.2d

583, 584 (1965)) (“It is well recognized that in this jurisdiction the courts have inherent

rights to prescribe rules, being limited only by their reasonableness and conformity to

constitutional and legislative enactments.”). When the district court held a hearing on

Mr. John’s motion to dismiss pursuant to W.S. § 6-2-602(f), the court did so pursuant to

its authority to prescribe rules of practice and procedure; as an issue of first impression,

the court was obligated to prescribe the procedure under which the immunity

determination would be made. While ultimate authority to declare those procedures

proper or improper falls upon this Court, the district court did not err in creating a

procedure and holding a hearing to handle the issue. Petersen v. State, 594 P.2d at 982

(“Matters dealing with procedure, particularly in the minor courts, are entirely within the

province of this court.”).

Similar to manner in which the immunity issues addressed in Hall were handled,

the district court in Mr. John’s case properly held a hearing pursuant to the Wyoming

Rules of Criminal Procedure in order to determine whether Mr. John was entitled to

35
immunity. Hall, 851 P.2d at 1268. Whether the procedure was the proper procedure to

be followed in the future or not will be addressed in Argument II, below, but the fact of

the matter is that it was a proper exercise of the district court’s powers to hold a hearing

and to establish the procedures under which that hearing would be held, and to establish

the standards under which the judicial determination would be made. The district court

in Mr. John’s case did not err in doing so, and it did not exceed its powers in holding the

hearing and making the determination it did.

36
 II. WHETHER THE PROCEDURES EMPLOYED AND
STANDARDS APPLIED BY THE DISTRICT COURT
IN THE HEARING ON MR. JOHN’S MOTION TO
DISMISS WERE PROPER?

Standard of Review.

The determination of whether the district court erred procedurally in holding the

immunity hearing, as well as the standards it applied and the procedures it employed

during that hearing involve questions of the district court’s jurisdiction, as well as

questions of statutory interpretation. Both are subject to de novo review.

“The subject matter jurisdiction of a court is a question of law that is reviewed de

novo.” Brown, 2008 WY at ¶ 12, 175 P.3d at 1162. “We apply a de novo standard of

review to issues of statutory interpretation.” Ramirez v. State, 2016 WY 128, ¶ 7, 386

P.3d 348, 349 (Wyo. 2016) (citing DRW v. DLP (In re ARW), 2015 WY 25, ¶ 11, 343

P.3d 407, 410 (Wyo. 2015)).

Argument.

A. The District Court Properly Held an Immunity Hearing Which was Entirely
Independent of the Preliminary Hearing

The State argues the district court’s only procedural authority to consider whether

Mr. John was entitled to W.S. § 6-2-602(f) immunity was through review of the circuit

court’s preliminary hearing probable cause findings. (Brief of Petitioner, pp. 36-38).

The State asserts that the only time W.S. § 6-2-602(f) immunity may be addressed is at

the initiation of court proceedings – at the preliminary hearing. (Id. at 37). The district

court’s immunity hearing was not conducted as a review of the circuit court’s preliminary

37
hearing. The hearing was entirely independent of the preliminary hearing, and the court

accepted evidence which was never presented at the preliminary hearing. The district

court did not err, procedurally, in holding the immunity hearing as a hearing separate and

distinct from the preliminary hearing.

Circuit courts have original jurisdiction in misdemeanor cases, and are tasked with

setting bail and conducting preliminary hearings in felony cases. W.S. §§ 5-9-129, 5-9-

132. District courts, on the other hand, have original jurisdiction in all criminal cases.

Wyo. Const. art. V, § 10. District courts also have original jurisdiction “of all

proceedings in which jurisdiction shall not have been by law vested exclusively in some

other court . . . .” Id. Finally, district courts have original jurisdiction “of such special

cases and proceedings as are not otherwise provided for.” Id. Circuit courts are courts of

limited jurisdiction in felony cases. District courts, on the other hand, are courts of

general jurisdiction in felony cases, and are provided with wide latitude to handle matters

in felony cases which are not specifically enumerated in the Wyoming Constitution or

statute.

Preliminary hearings are hearings with one limited purpose: to allow the circuit

court judge to determine whether there is “probable cause to believe the charged offense

or lesser included offense has been committed and that the defendant committed it . . . .”

Wyo. R. Crim. P. 5.1(b); Madrid v. State, 910 P.2d 1340, 1343 (Wyo. 1996) (citing

Garcia v. State, 667 P.2d 1148, 1154 (Wyo. 1983)). Probable cause determinations focus

solely upon whether sufficient evidence is presented to support every element of the

38
charged crime. The evidence that may be introduced at a preliminary hearing is

necessarily limited by the limited scope and purpose of a preliminary hearing. Circuit

courts must use their discretion in preliminary hearings to determine whether defendant-

introduced-testimony from a witness fits within the bounds of the proper scope of a

preliminary hearing. Madrid, 910 P.2d at 1343. Circuit courts must also limit the scope

of preliminary hearings to ensure they are not utilized as tools of discovery but are

instead constrained to their limited purpose of determining probable cause. Trujillo, 880

P.2d at 581-83.

In contrast to the preliminary hearing probable cause determination, a

determination of whether the statutory immunity provided in W.S. § 6-2-602(f) applies

involves a determination of factors beyond whether probable cause supports every

element of the crime charged. While the State equates probable cause determinations

with the immunity determination involved in § 6-2-602(f), the two determinations are

distinct. They involve entirely different elements. Argument I(C), supra. Therefore, the

probable cause determination made by the circuit court at the preliminary hearing stage

will not necessarily address the elements of the immunity provided in § 6-2-602(f). The

district court in Mr. John’s case properly recognized this to be the case. (Tr. Motion to

Dismiss H’rg., p. 17).

Circuit courts have limited jurisdiction in felony cases, and the matters they are

statutorily-permitted to handle in felony cases are limited. No statute expressly grants

authority to the circuit courts to make immunity determinations. Additionally:

39
 [A]t the preliminary hearing the judicial officer should not attempt or be
called upon to decide difficult legal questions. It simply is not
contemplated that the committing magistrate should ask for and receive
briefs on disputed legal points. The development of these principles is due
in part to the summary nature of the preliminary hearing. It is held
promptly after arrest. Neither side has much time to prepare. The
prosecution presents only so much of its case as is necessary to establish
probable cause, reserving the remainder for trial. The accused may very
well offer no evidence unless he can demonstrate the absence of probable
cause. Just as the preliminary hearing is an inappropriate forum for
deciding the important issues involved in a motion to suppress, so too is it
an inappropriate forum for deciding other complicated legal questions. The
preliminary hearing is designed to be a quick, efficient means of
determining whether the accused should be detained and of ensuring the
effective administration of justice.

State v. Carter, 714 P.2d 1217, 1219-20 (Wyo. 1986). The determination of immunity

most naturally falls within the purview of the district courts, since these courts have

original jurisdiction in felony cases. District courts are also granted broad authority by

the Wyoming Constitution to handle all proceedings pertaining to felony criminal cases

which are not otherwise provided for, as well as authority to handle proceedings for

which jurisdiction is not exclusively granted to other courts. Wyo. Const. art. V, § 10;

Christiansen v. Christiansen, 2011 WY 90, ¶¶ 5, 253 P.3d 153, 155 (Wyo. 2011).

Because no statute, Constitutional provision, or other law grants authority to any

other court to handle proceedings related to immunity determinations under W.S. § 6-2-

602(f), pursuant to the Wyoming Constitution, this authority is granted to the district

courts. When the district court held a hearing in Mr. John’s case to make the W.S. § 6-2-

602(f) immunity determination, it did so with authority granted to it by the Wyoming

Constitution. The district court was not required to merely review the circuit court’s

40
probable cause finding. Not only was the proceeding properly handled by the district

court in the first instance as a proceeding in a felony case not otherwise provided for and

as a proceeding in which jurisdiction is not exclusively granted to another court, but the

circuit court did not even make the immunity determination in the first instance in this

case. Wyo. Const. art. V, § 10; (Tr. Preliminary H’rg. (unredacted), pp. 68-69).

The circuit court’s choice not to reach a determination on the immunity issue was

not in error. The circuit court’s authority to make probable cause determinations at

preliminary hearings is limited. W.S. §§ 5-9-129, 5-9-132. The statute providing

jurisdiction to the circuit courts to handle preliminary hearings in felony criminal cases

contains no language addressing immunity determinations generally, or W.S. § 6-2-

602(f) specifically. Unlike the district courts, the laws providing circuit courts with

jurisdiction in felony criminal matters do not contain general or “catch-all” language

which would require them to handle matters not specifically provided for at law. The

circuit court in Mr. John’s case did not err in deferring to the district court to make the

immunity determination, and the district court did not err in ordering a proceeding which

allowed the immunity issue to be addressed directly, thoroughly, and meaningfully by the

district court in the first instance.

B. The District Court was Not Required to Apply Appellate Standards and
Procedures in Making the Immunity Determination

Because the district court properly held a hearing on the immunity issue, and

because the immunity issue was not required to be raised in or disposed of by the circuit

court, the district court also did not err in failing to apply appellate procedures and

41
standards. The State argues that the district court should have only considered the

immunity issue in the context of a petition for writ of review from the circuit court’s

preliminary hearing determination. (Brief of Petitioner, pp. 38-39). This argument

improperly presumes the preliminary hearing is the proper forum at which to determine

the immunity issue. For the reasons stated above, the circuit court was not required to

make the immunity determination, and in fact refused to make that determination in Mr.

John’s case. (Tr. Preliminary H’rg. (unredacted), pp. 68-69).

The district court acted well within its authority pursuant to the Wyoming

Constitution and pursuant to the Wyoming Rules of Criminal Procedure when it held

proceedings to determine the immunity issue in this felony criminal case. Wyoming Rule

of Criminal Procedure 12(b) permits “any defense, objection, or request which is capable

of determination without the trial of the general issue” to be raised before trial by motion.

Wyo. R. Crim. P. 12(b). Mr. John’s motion was timely filed prior to trial, and the district

court did not err in holding a hearing on the motion. (R.A., pp. 164-73).

Because the district court properly held the hearing in the first instance (and was

not merely reviewing a finding made by the circuit court), the district court was not

confined to applying appellate standards and procedures. The State’s entire argument

regarding the appellate standards it claims the district court should have applied presumes

the preliminary hearing is the same as an immunity hearing. (Brief of Petitioner, pp. 38-

39). The argument is premised on the assumption that the probable cause determination

will necessarily reach the merits of an immunity determination.

42
 For reasons set forth above related to the distinct elements of each determination,

the State’s presumptions are flawed. The preliminary hearing is a very focused and

limited hearing that will not necessarily reach the merits of a claim of immunity under §

6-2-602(f). Because the immunity issue is not required by law to be raised before the

circuit court, and is by law permitted to be raised in the district court, the application of

appellate standards and procedures would be inappropriate.

The Wyoming Rules of Appellate Procedure provide district courts with the

authority to review actions of the circuit court. Wyo. R. App. P. 1.02. Review is limited

to review of appealable orders, certified questions of law from the lower court, review of

administrative decisions, and petitions for writ of review for interlocutory or

extraordinary relief. Wyo. R. App. P. 1.02, 1.05, 11.01, 12.01, 13.01.

An order of a circuit court binding a felony criminal case over to the district court

upon a finding of probable cause does not meet the criteria for appeals district courts

must consider from circuit courts. The bind-over order from the circuit court is not a

final, appealable order, is not a certified question of law, and is not an administrative

decision. Lower Valley Power & Light, 608 P.2d 660, 661 (Wyo. 1980). The only

avenue through which a district court could consider the circuit court’s preliminary

hearing ruling under the Wyoming Rules of Appellate Procedure would be through the

discretionary petition for writ of review. Wyo. R. App. P. 13.01(a), (b).

Since the preliminary hearing probable cause determination will not necessarily

include the necessary record for the district court to determine the issue of immunity (and

43
the issue of immunity may not be addressed at all at the preliminary hearing stage), the

district court will in most instances not have the information necessary to make a

meaningful determination as to the immunity if it is considered through the appellate

process. In many cases, the information the defense attorney needs to meaningfully raise

the immunity issue is not available until after the case has been bound over from the

circuit court to the district court – when discovery is produced. Argument I(C), supra.

Therefore, even if the immunity claim is permitted to be raised before the circuit court, as

a practical matter, the defense attorney will most often not have the information

necessary to fully vet the issue until the case has been bound over to the district court. Id.

There will be nothing for the district court to review as to the circuit court’s rulings on

the immunity issue because the issue will not be ripe for disposition until after the

preliminary hearing takes place.

Since district courts are constitutionally permitted to handle proceedings such as

immunity hearings under W.S. § 6-2-602(f), circuit courts are not granted express

authority to handle immunity hearings, and because as a practical matter the information

necessary to fully vet an immunity claim is not available until the case has been bound

over to the district court, this Court should hold that the district court had the authority to

hold the immunity hearing, and was not bound to merely review the circuit court’s

probable cause determination made at the preliminary hearing under appellate standards

and procedures.

C. Proper Procedures and Standards for the District Court to Apply to W.S. § 6-2-
602(f) Immunity Proceedings

44
 The district court correctly found that W.S. § 6-2-602(f) created a true immunity

and did not merely represent an affirmative defense. (Tr. Motion to Dismiss H’rg., pp.

16-17). Upon making that finding, the court noted that because a true immunity is

involved, there must be a procedural gate-keeping function. (Id.). The court noted

similar laws existing in other states and discussed how those states handled immunity

claims, procedurally. (Id. at 19-21). The court properly held the burden should be on the

State to demonstrate the defendant was not statutorily justified in the use of force. (Id. at

20). Ultimately, the court decided that once the issue of W.S. § 6-2-602(f) immunity is

raised, the State must meet the burden of establishing by probable cause that the

defendant was not statutorily justified in the exercised use of force. (Id. at 20-22). In

reaching this determination, the district court relied upon the approaches utilized by

Kansas and Kentucky courts to handle similar immunity claims. (Id. at 20).

The district court did not err in concluding that a procedural gate-keeping function

must exist, or the statutory immunity created by W.S. § 6-2-602(f) would be rendered

virtually meaningless. The court also did not err in concluding that once the issue of

statutory immunity under W.S. § 6-2-602(f) is raised, the burden should be placed on the

State to demonstrate that the defendant should not be entitled to immunity.

As the district court noted, the Wyoming legislature created a mandatory bar to

prosecution in W.S. § 6-2-602(f). (Tr. Motion to Dismiss H’rg., p. 21). The district

court’s finding that W.S. § 6-2-602(f) operates as a mandatory bar to prosecution was a

correct interpretation of the plain meaning of the statute. In construing statutes:

45
 [O]ur primary consideration is to determine the legislature’s intent. All
statutes must be construed in pari materia and, in ascertaining the meaning
of a given law, all statutes relating to the same subject or having the same
general purpose must be considered and construed in harmony. . . . We
begin by making an inquiry respecting the ordinary and obvious meaning of
the words employed according to their arrangement and connection. We
construe the statute as a whole, giving effect to every word, clause, and
sentence, and we construe all parts of the statute in pari materia. When a
statute is sufficiently clear and unambiguous, we give effect to the plain
and ordinary meaning of the words and do not resort to the rules of
statutory construction. Moreover, we must not give a statute a meaning that
will nullify its operation if it is susceptible of another interpretation.

Lake v. State, 2013 WY 7, ¶ 15, 292 P.3d 174, 178 (Wyo. 2013). Section 6-2-602(f)

seeks to protect the defendant from the burdens of prosecution by creating an actual

immunity; it does not merely create an affirmative defense to be used at trial. (Tr.

Motion to Dismiss H’rg., p. 21). If the legislature intended § 6-2-602(f) to operate

merely as an affirmative defense, it would have used the word “affirmative defense.” See

W.S. § 6-2-308(a) (“. . . [I]t is an affirmative defense that the actor reasonably believed

that the victim was sixteen (16) years of age or older.”); W.S. § 6-3-302(b) (“It is an

affirmative defense to prosecution under this section that . . . .”); W.S. § 14-3-302(f) (“It

is an affirmative defense to a prosecution . . . .”). The plain language of W.S. § 6-2-

602(f) makes clear that it is meant to operate as a full shield to prosecution, not merely a

defense to prosecution. W.S. § 6-2-602(f) (“. . . shall not be criminally prosecuted for

that use of reasonable defensive force.”). The statute is also mandatory in nature, and

dictates a determination be made prior to trial. Argument I(A), supra (discussion of plain

language of statute).

Given the very protective and mandatory language used in W.S. § 6-2-602(f), and

46
the clarity with which it seeks to protect a defendant from prosecution, it makes sense to

place the burden of overcoming the immunity on the State when the defendant asserts he

is entitled to W.S. § 6-2-602(f) immunity. The district court in Mr. John’s case was

correct in allocating the burden to the State to overcome the immunity asserted by Mr.

John.

Placing the burden on the State also has support in the law of other states which

have statutes similar to Wyoming’s Statute § 6-2-602(f). Rodgers v. Com., 285 S.W.3d

740 (Ky. 2009); Wright v. Com., 2017 WL 639386 (Ky. 2017) (unpublished); State v.

Ultreras, 296 Kan. 828 (Kan. 2013); State v. Hardy, 305 Kan. 1001 (Kan. 2017); State v.

Collins, 56 Kan. App. 2d 140 (Kan. 2018).

i. Kentucky

Although it is structured somewhat differently, Kentucky’s immunity statute is

similar to Wyoming’s. Kentucky’s statute states, in relevant part:

(1) A person who uses force as permitted in KRS 503.050, 503.055,

503.070, and 503.080 is justified in using such force and is immune from
criminal prosecution and civil action for the use of such force, unless the
person against whom the force was used is a peace officer, as defined in
KRS 446.010, who was acting in the performance of his or her official
duties and the officer identified himself or herself in accordance with any
applicable law, or the person using force knew or reasonably should have
known that the person was a peace officer. As used in this subsection, the
term “criminal prosecution” includes arresting, detaining in custody, and
charging or prosecuting the defendant.

K.R.S. § 503.085. The Kentucky Supreme Court discussed the standard that should be

applied in pre-trial hearings on immunity. The Kentucky Supreme Court ultimately

decided the prosecution should bear the burden to establish by probable cause that the

47
immunity does not apply to the defendant. Rodgers, 285 S.W.3d at 755. The Court

noted the use of the probable cause standard in another subsection of the same statute,

and found a legislative intent that the probable cause standard be applied on that basis.

Id. at 754-55. The Court rejected the defendant’s suggestion to apply a preponderance of

the evidence standard, concluding there was no support in the statute for such a standard.

Id. at 755.

In the unpublished decision of Wright v. Com., 2017 WL 639386 (Ky. 2017)

(unpublished), the Kentucky Supreme Court confirmed the standard to be applied in self-

defense immunity proceedings, and confirmed the burden should be placed on the

prosecution. Id. at *3. Kentucky’s statute does differ from Wyoming’s statute, in that its

subsection (2) specifies a probable cause standard. K.R.S. § 503.085(2). Wyoming’s

statute does not specify any standard to be applied in immunity determinations.

ii. Kansas

Kansas courts also apply a probable cause standard in self-defense immunity

hearings, requiring the prosecution to establish by probable cause that the defendant is

not entitled to statutory immunity. State v. Ultreras, 296 Kan. 828 (Kan. 2013); State v.

Hardy, 305 Kan. 1001 (Kan. 2017); State v. Collins, 56 Kan. App. 2d 140 (Kan. 2018).

The relevant Kansas statute reads, in pertinent part:

(a) A person who uses force which, subject to the provisions of K.S.A. 21-
5226, and amendments thereto, is justified pursuant to K.S.A. 21-5222, 21-
5223 or 21-5225, and amendments thereto, is immune from criminal
prosecution and civil action for the use of such force, unless the person
against whom force was used is a law enforcement officer who was acting
in the performance of such officer’s official duties and the officer identified

48
 the officer's self in accordance with any applicable law or the person using
force knew or reasonably should have known that the person was a law
enforcement officer. As used in this subsection, “criminal prosecution”
includes arrest, detention in custody and charging or prosecution of the
defendant.

K.S.A. § 21-5231 (referenced in State v. Ultreras, 296 Kan. 828 (Kan. 2013) as K.S.A. §

21-3219; recodified to current statute section). Notably, Kansas’ statute is nearly

identical to Kentucky’s statute. Kansas’ statute also has a provision nearly identical to

Kentucky’s, noting a probable cause standard. Ultreras, 296 Kan. at 834. Like the

Kentucky Court, the Kansas Supreme Court noted the presence of statutory language

setting a probable cause standard on the prosecution, and found that the proper standard

to be applied in immunity hearings is probable cause. Id. at 843.

In State v. Hardy, 305 Kan. 1001 (Kan. 2017), the Kansas Supreme Court

confirmed the prosecution bears the burden of establishing by probable cause that the

defendant is not entitled to statutory immunity. Hardy, 305 Kan. at 1011. The Court

held that in immunity hearings, the district court must consider the totality of the

circumstances without deference to the State, resolve conflicts in the evidence, and make

its probable cause determination based upon all of the evidence before it. Id. at 1011-12.

In State v. Collins, 56 Kan. App. 2d 140 (Kan. 2018), the Kansas Supreme Court

again reiterated that the proper standard to be applied to self-defense immunity hearings

is a probable cause standard, with the burden falling on the State. Collins, 56 Kan. App.

2d at 152. The Court clarified that the trial court was not required to determine whether

the defendant was justified in the use of deadly force in self-defense, but whether the

49
prosecution established by probable cause that the use of force in self-defense was not

justified. Id.

iii. Wyoming

The district court in Mr. John’s case chose to adopt the Kansas and Kentucky

approach to determining whether self-defense immunity applies. (Tr. Motion to Dismiss

H’rg., 14-22). That is, the court placed the burden on the State to produce evidence

sufficient to establish by probable cause that Mr. John was not entitled to W.S. § 6-2-

602(f) immunity. The district court was correct in placing the burden on the State, since

the statute is designed to protect the defendant. (Tr. Motion to Dismiss H’rg., p. 21).

Since this is an issue of first impression and because no procedures presently exist to

guide district courts in the determination of this statutory immunity, the standards

adopted by Kansas and Kentucky do supply helpful guidance. However, Mr. John asserts

that existing Wyoming case law may provide more appropriate direction in terms of the

standards and burdens to be applied in immunity determinations.

In Hall v. State, 851 P.2d 1262 (Wyo. 1993) and in Russell v. State, 851 P.2d 1274

(Wyo. 1993), the Wyoming Supreme Court considered transactional immunity. Like the

self-defense immunity here at issue, the transactional immunity at issue in Hall and

Russell did not have a statutory procedure spelled out for handling the claims. “We

recognize there is no statute to apply here, other than referring to the statute in Utah.”

Hall, 851 P.2d at 1268. There is a statute in existence related to the immunity at issue in

Mr. John’s case, but the statute does not include a procedure with it. W.S. § 6-2-602(f).

50
Like the Court in Hall, this Court should establish the proper procedure to be followed

when W.S. § 6-2-602(f) immunity is raised.

In Hall, the defendant and the State disputed whether the defendant was entitled to

transactional immunity, so a factual dispute existed as to whether the defendant should be

able to avail himself of the immunity, and as to the scope of that immunity. Hall, 851

P.2d at 1268-69. The Wyoming Supreme Court found that once raised by the defendant,

the issue of transactional immunity should be addressed prior to trial in accordance with

the former Wyoming Rule of Criminal Procedure 16. Id. at 1268.1 Like the immunity at

issue in Mr. John’s case, the transactional immunity at issue in Hall was an issue that

involved the right of the State to proceed with prosecution. Id. “As we earlier indicated,

the trial court should satisfy itself as to the right of the State to go forward with any

prosecution.” Id.

The Court established the following standards and procedures for determining

issues related to transactional immunity:

(1) The defendant files a pre-trial motion pursuant to former Wyoming

Rule of Criminal Procedure 16 (now Wyoming Rule of Criminal Procedure
12), raising the issue of immunity;

(2) A hearing is held pursuant to that Rule;

(3) The defendant must make a prima facie case demonstrating his

1
Former Wyoming Rule of Criminal Procedure 16 is now Wyoming Rule of Criminal

Procedure 12, relating to the procedures for raising defenses and motions in criminal

cases. Hall, 851 P.2d at 1267; Wyo. R. Crim. P. 12.

51
 entitlement to immunity;

(4) The State must establish, by a preponderance of the evidence, that

the defendant is not entitled to immunity (or, in the case of Hall, the
limitation on that immunity or a forfeiture of the immunity).

Hall, 851 P.2d at 1268-69. The Wyoming Supreme Court noted in Hall that if the district

court found the defendant was not entitled to immunity following the hearing, the

defendant would still be entitled to assert immunity as an affirmative defense at trial. Id.

at 1269. The Court noted that this is “consistent with the presentation of any self-

incriminating matter which arises in the context of a confession or a grant of immunity.”

Id. If the matter were asserted as an affirmative defense at trial, the jury would determine

the facts with respect to the immunity, with a special verdict form incorporating the

relevant particular questions on the immunity issue. Id. The Court went further to

establish the standards and procedures related to raising the affirmative defense at trial as:

(1) The defendant must make a prima facie case as to the entitlement to
immunity;

(2) If a prima facie case is made, the State assumes the burden of
proving beyond a reasonable doubt that the defendant is not entitled to
immunity.

Hall, 851 P.2d at 1269. These standards and procedures were affirmed in Russell v.

State, 851 P.2d 1274 (Wyo. 1993).

The standards and procedures established in Hall and in Russell should be adopted

by this Court as the standards and procedures to be followed in cases of asserted

immunity under W.S. § 6-2-602(f). Like the immunity at issue in Hall and Russell, W.S.

§ 6-2-602(f) immunity is a true immunity, and not merely an affirmative defense. Like

52
the immunity at issue in Hall and Russell, W.S. § 6-2-602(f) immunity directly affects the

right of the State to move forward with a prosecution. The plain language of W.S. § 6-2-

602(f) alone makes clear that it protects a defendant from being “criminally prosecuted.”

W.S. § 6-2-602(f).

Both types of immunities may involve disputed issues of fact. Both types of

immunities require judicial determination prior to trial for the immunities to have

meaning. While W.S. § 6-2-602(f) immunity is spelled out in statute (and the

transactional immunity at issue in Hall and Russell did not exist in a statute), neither type

of immunity carried with it a statutory description (or even any guidance) of the proper

standards and procedures to be followed by the court in determining the immunity. Both

types of immunities also constitute affirmative defenses, in addition to being immunities.

W.S. § 6-2-602; Hall, 851 P.2d at 1269.

The similarities between the transactional immunity described in Hall and Russell

and the immunity at issue in Mr. John’s case are many. This Court should adopt the

procedures and standards established in Hall and Russell for disposition of self-defense

immunity claims made pursuant to W.S. § 6-2-602(f). While the Kansas and Kentucky

cases are helpful in that they, like Mr. John’s case, involve self-defense immunity, the

Kansas and Kentucky statutes are not identical to Wyoming’s statute.

The Kansas and Kentucky cases are instructive, though, because their statutes, like

Wyoming’s, do not spell out a particular procedure to be followed. Unlike Wyoming’s

statute, though, both Kansas and Kentucky’s statutes involve use of the particular

53
language “probable cause.” Wyoming’s statute has no language which could be used to

interpret the legislature’s intent as to the proper burden to be applied. W.S. § 6-2-602.

Kansas and Kentucky’s approaches were also helpful in that they properly placed the

burden on the State, explaining that the statutes were meant to serve a protective function

for the defendant, shielding him from prosecution. So, too, does Wyoming’s statute

serve a protective function for the defendant, shielding him from prosecution when

reasonable defensive force is used.

While the Kansas and Kentucky cases are helpful in many regards, even more

persuasive is Wyoming’s own case law. Because the Wyoming Supreme Court already

addressed immunity in Hall and Russell, this Court should adopt similar reasoning and

apply the same standards and procedures when immunity pursuant to W.S. § 6-2-602(f) is

raised. Adopting the reasoning of Hall and Russell would also acknowledge the

presumption that the “legislature acts in a thoughtful and rational manner with full

knowledge of existing law and intends new statutory provisions to be read in harmony

with existing law . . . .” Kite v. State, 2018 WY 94, ¶ 29, 424 P.3d 255, 264 (Wyo.

2018); Vaughn v. State, 2017 WY 29, ¶ 10, 391 P.3d 1086, 1091 (Wyo. 2017).

The Hall and Russell approaches would effectuate the legislative intent of

providing early, pre-trial disposition of immunity issues to effectively protect the

defendant from the burdens of prosecution. It would also preserve the claim as an

affirmative defense to be used at trial if the defendant is not entitled to pre-trial immunity.

This reading gives meaning to the legislature’s choice to include W.S. § 6-2-602(f)

54
immunity within the self-defense statute, the subsections of which are also used as

affirmative defenses. The Hall and Russell approaches also make use of existing

Wyoming Rules of Criminal Procedure, providing an existing mechanism through which

the defendant may raise the issue of immunity.

Adding further support for the Hall and Russell approach is the fact that current

Wyoming self-defense law prescribes a similar procedure to that spelled out in Hall when

the immunity is denied pre-trial, but asserted as an affirmative defense at trial. Drennen

v. State, 2013 WY 118, 311 P.3d 116 (Wyo. 2013) is instructive because the immunity at

issue in Mr. John’s case directly involves the same presumptions and the same main

statute as the affirmative defense of self-defense. Drennen, 2013 WY at ¶ 22, 311 P.3d at

124-25. If Mr. John’s approach is adopted by this Court, in cases involving W.S. § 6-2-

602(f) immunity, if the district court finds (after a pre-trial immunity hearing), that the

prosecution has met its burden of establishing by a preponderance of the evidence that the

defendant is not immune from prosecution, the jury must still determine whether the State

has proven beyond a reasonable doubt that the defendant did not use reasonable force in

self-defense. In Drennen, the standards and procedures to be used when self-defense is

raised as an affirmative defense at trial were discussed. The Court explained that the

proper standards and procedures at trial were:

(1) The defendant must make a prima facie case establishing all of the
elements of the affirmative defense;

(2) If a prima facie case is established, the burden shifts to the State to
prove beyond a reasonable doubt that the defendant did not act in self-
defense.

55
Drennen, 2013 WY at ¶ 22, 311 P.3d at 124-25. These standards and procedures are

identical to the standards and procedures established for determining transactional

immunity in Hall, when pre-trial immunity is denied and transactional immunity is raised

as an affirmative defense at trial. Hall, 851 P.2d at 1269. The fact that the burdens and

standards are identical lends further weight to Mr. John’s position that W.S. § 6-2-602(f)

immunity should be determined using the same standards and procedures established in

Hall and Russell. That is, self-defense law which developed after Hall and Russell were

decided utilizes identical standards and procedures to those set forth in Hall and Russell

when immunity is asserted as an affirmative defense at trial.

In sum, because there is existing Wyoming precedent related to the standards and

procedures that are to be employed in determining immunity issues, because W.S. § 6-2-

602(f) is amenable of these existing standards and procedures, and because adoption of

these existing standards and procedures fall perfectly in line with existing Wyoming law

on the procedures to be applied at trial when self-defense is raised, the Hall and Russell

approaches should be adopted by this Court as the standards and procedures to be utilized

by circuit or district courts in the determination of W.S. § 6-2-602(f) immunity claims.

56
 III. WHETHER THE DISTRICT COURT PROPERLY
DECIDED THE CHARGE AGAINST MR. JOHN MUST
BE DISMISSED PURSUANT TO W.S. § 6-2-602(f)?

Standard of Review.

This Court should limit its decision to an opinion on whether district courts have

the authority to hold a § 6-2-602(f) hearing, as well as the standards and procedures that

should be utilized and employed in future cases. This Court should not disturb the

district court’s findings of fact, legal conclusions, or ultimate decision in Mr. John’s case.

In the event this Court does opt to review the district court’s decisions and conclusions in

Mr. John’s case, it should apply the following standards of review.

This Court reviews the district court’s factual findings under a clearly erroneous

standard of review. Damato v. State, 64 P.3d 700, 704 (Wyo. 2003). “A finding is

clearly erroneous when, even though substantial evidence supports it, the reviewing court

is left with the definite and firm conviction that a mistake was made.” Lovato v. State,

228 P.3d 55, 59 (Wyo. 2010) (citing reference omitted). Evidence is viewed in the light

most favorable to the district court’s decision because the district court held the hearing

and had the opportunity to assess witness credibility, weigh the evidence, and make the

necessary inferences, deductions, and conclusions. Dixon v. State, 2019 WY 37, ¶ 17,

438 P.3d 216, 226 (Wyo. 2019). Whether the district court properly applied W.S. § 6-2-

602(f) to the facts of the case is a question of law, which is reviewed de novo. Starrett v.

State, 2012 WY 133, ¶ 9-19, 286 P.3d 1033, 1036-1040 (Wyo. 2012); Johnson v. City of

Laramie, 2008 WY 73, ¶ 7, 187 P.3d 355, 357 (Wyo. 2008).

57
Argument.

A. The District Court’s Factual Findings Were Not Clearly Erroneous

The district court’s factual findings were not clearly erroneous. They were

supported by substantial evidence, and when the court’s factual findings are reviewed in

light of the evidence available to it, there cannot be a “definite and firm conviction that a

mistake was made.” The district court made the following factual findings. For the sake

of clarity and brevity, specific citations to the record for each finding of fact are provided

in support of Mr. John’s position that all of the district court’s factual findings were

supported by substantial evidence in the record and were not clearly erroneous:

(1) Ms. Hayden was previously in a dating relationship with Mr. John,
which ended in July of 2018. A the time of the offense, Ms. Hayden was
seeing Mr. Willow, and Ms. Hayden and Mr. Willow were celebrating Ms.
Hayden’s birthday (Tr. Preliminary H’rg, pp. 12, 13-14, 17; Tr. Motion to
Dismiss H’rg., pp. 25, 27, 38, 51, 66);

(2) On the date of the offense, Ms. Hayden and the defendant had a
dispute via text message (Tr. Preliminary H’rg, pp. 12, 18, 29-30; Tr.
Motion to Dismiss H’rg., pp. 25, 27, 32, 41, 49, 51, 52; Motion to Dismiss
H’rg, State’s Exh. 2);

(3) Ms. Hayden showed one particular text message to Mr. Willow, and
then “all hell broke loose” (Tr. Preliminary H’rg, pp. 12, 18; Tr. Motion to
Dismiss H’rg., pp. 28, 68-70);

(4) Mr. Willow placed a call to Mr. John using Ms. Hayden’s phone at
3:56 a.m., which lasted one (1) minute (Tr. Preliminary H’rg, pp. 12, 30,
50; Tr. Motion to Dismiss H’rg., pp. 25-29, 32-33, 41, 49);

(5) After that call, Mr. Willow decided to go to Mr. John’s home to fight
him, so Ms. Hayden, Mr. Willow, and Mr. Heims traveled to Mr. John’s
home by vehicle (Tr. Preliminary H’rg, pp. 12, 18, 43, 49, 51; Tr. Motion to
Dismiss H’rg., pp. 25, 29, 32);

58
(6) Mr. Willow had threatened to beat Mr. John up (Tr. Preliminary
H’rg, pp. 12, 18, 49; Tr. Motion to Dismiss H’rg., pp. 32, 42, 53, 60, 63, 70,
95);

(7) While Ms. Hayden, Mr. Willow, and Mr. Heims were traveling to
Mr. John’s house, Mr. John sent text messages to Ms. Hayden’s phone;
those messages were never read by Ms. Hayden, Mr. Willow, or Mr. Heims
prior to the shooting (Tr. Motion to Dismiss H’rg., pp. 53-55, 67-68, 96-
97);

(8) Ms. Hayden gave directions to Mr. Willow on how to get to Mr.
John’s home (Tr. Preliminary H’rg., p. 49; Tr. Motion to Dismiss H’rg., p.
72);

(9) Mr. Willow was intoxicated and had a blood alcohol concentration
of 0.20; Ms. Hayden was intoxicated to an unknown extent (Tr. Preliminary
H’rg., pp. 34-35; Tr. Motion to Dismiss H’rg., pp. 64, 66);

(10) Ms. Hayden, Mr. Willow, and Mr. Heims parked at Lot Number 69
and traveled by foot to Mr. John’s home at Lot Number 75; they parked at
Lot Number 69 because Mr. Willow did not want the vehicle to be seen
before or after (Tr. Preliminary H’rg, pp. 12, 19, 35; Tr. Motion to Dismiss
H’rg., pp. 25, 29, 71, 73-74);

(11) Ms. Hayden carried an empty vodka bottle with her as she
approached Mr. John’s home which she intended to use against Mr. John;
after the shooting, she did hit Mr. John with the empty vodka bottle (Tr.
Preliminary H’rg, pp. 21, 51; Tr. Motion to Dismiss H’rg., pp. 30, 40, 59,
74-76, 87, 97-98);

(12) Ms. Hayden believed a physical confrontation would occur outside

Mr. John’s house, and she thought she would meet him outside the home,
hit him in the head with the vodka bottle, and then “whatever else
happened, happened”; she believed Mr. John and Mr. Willow would fight
after she hit Mr. John in the head with the empty vodka bottle (Tr. Motion
to Dismiss H’rg., pp. 74-76);

(13) Mr. Heims was armed with a closed knife as they approached Mr.
John’s home (Tr. Preliminary H’rg, pp. 16-17, 42; Tr. Motion to Dismiss
H’rg., pp. 76-77, 79-80);

(14) Mr. John had an AR-15-style rifle with a flashlight mounted on it

59
(Tr. Preliminary H’rg, pp. 11, 14; Tr. Motion to Dismiss H’rg., pp. 39, 82-
85);

(15) Mr. Heims and Ms. Hayden both saw the gun and indicated the light
was shining on them as they approached Mr. John’s home; Mr. Heims was
an unknown male to Mr. John as he approached the home (Tr. Preliminary
H’rg, pp. 12, 14-15; Tr. Motion to Dismiss H’rg., pp. 25-26, 29, 32, 39);

(16) Mr. John was standing on his porch or at the threshold of his home
as the three individuals approached his home (Tr. Motion to Dismiss H’rg.,
pp. 32, 39, 78-80, 85);

(17) Mr. John yelled back and forth with the three individuals as they
approached his home; before shots were fired, Mr. John yelled, “get back”
or “get out of here”; before he fired, he said, “back the F up” approximately
three (3) times before any shots were fired (Tr. Preliminary H’rg, pp. 13,
20, 36; Tr. Motion to Dismiss H’rg., pp. 26, 32, 41, 78-79);

(18) Mr. John stepped back into his home as Mr. Willow charged up the
steps to the home and sprinted straight for Mr. John (Tr. Preliminary H’rg,
pp. 13, 37, 54; Tr. Motion to Dismiss H’rg., pp. 31-32, 39-41, 79-80, 86,
90);

(19) Ms. Hayden said Mr. Willow had a reputation of not backing down
(Tr. Preliminary H’rg., pp. 47-49; Tr. Motion to Dismiss H’rg., pp. 63-64,
85-86);

(20) Mr. Willow went past Ms. Hayden, since she was originally in the
front as they made their approach (Tr. Preliminary H’rg, pp. 19-20, 36; Tr.
Motion to Dismiss H’rg., pp. 77-79, 86);

(21) Mr. Willow was moving quickly, he was angry, and was moving
towards the home with “an angry step” (Tr. Preliminary H’rg, pp. 13, 37,
54; Tr. Motion to Dismiss H’rg., pp. 31, 74, 79-81, 86, 90);

(22) Mr. John fired nine (9) of the thirty (30) shots which were in the
magazine (Tr. Preliminary H’rg, pp. 10, 23, 25, 38; Tr. Motion to Dismiss
H’rg., pp. 48, 81-82);

(23) Two (2) shots struck Mr. Willow in the chest and six (6) shots struck
Mr. Willow in the backside of his body (Tr. Preliminary H’rg, pp. 25-28;
Tr. Motion to Dismiss H’rg., pp. 44-45; Motion to Dismiss H’rg, State’s

60
 Exh. 1);

(24) The shots were fired in rapid succession with no break in the shots
which were fired (Tr. Preliminary H’rg, pp. 16, 41-42, 56-57; Tr. Motion to
Dismiss H’rg., pp. 29, 86, 93);

(25) Mr. Willow’s body was inside the home (Tr. Preliminary H’rg, pp.
9, 15, 54-56; Tr. Motion to Dismiss H’rg., pp. 31, 87, 90; Motion to
Dismiss H’rg, Defendant’s Exh. A);

(26) Mr. John had a lock on his door which was operational, and he told
officers that he closed the door and Mr. Willow opened it and entered his
home (Tr. Motion to Dismiss H’rg., pp. 39-42);

(27) Mr. Willow was not armed when he approached Mr. John’s home
(Tr. Preliminary H’rg, pp. 16, 42; Tr. Motion to Dismiss H’rg., p. 57);

(28) Mr. John made eight calls between the time of the phone call with
Mr. Willow at 3:56 a.m. and the time of the shooting, with the last call
taking place at 4:07 a.m. (Tr. Motion to Dismiss H’rg., pp. 34-36);

(29) When this occurred, Mr. John’s mother and his young son were in
his home (Tr. Preliminary H’rg, pp. 11, 22; Tr. Motion to Dismiss H’rg.,
pp. 30, 40);

(30) Mr. John did not invite Mr. Willow into his home (Tr. Preliminary
H’rg., p. 51, 53; Tr. Motion to Dismiss H’rg., pp. 40, 64, 91);

(31) Mr. John’s mother called 911 at 4:12 a.m. (Tr. Preliminary H’rg, p.
9; Tr. Motion to Dismiss H’rg., pp. 31, 36-37);

(32) Mr. John told officers that Mr. Willow rushed him, and he shot Mr.
Willow (Tr. Preliminary H’rg, pp. 11, 40; Tr. Motion to Dismiss H’rg., pp.
39-41).

(Tr. Motion to Dismiss H’rg., pp. 111-18). The State argues that some of the district

court’s factual findings were contradicted by other facts presented. (Brief of Petitioner,

pp. 50-59). In making its argument, the State re-iterated its position that the district court

should not have held a hearing and received evidence and instead should have relied upon

61
the evidence presented at the preliminary hearing. (Id. at 47, 50-59). The State then

argued that pieces of the evidence supported the State’s position, and claimed the district

court therefore erred because some evidence supported factual findings which

contradicted those made by the district court. (Id. at 49-59). In essence, the State chose

some evidence which did not support the district court’s factual findings and then argued

that because the district court should have made factual findings contrary to some of

those it did make, its legal conclusions were in error. The State asks this Court to

reweigh the evidence in a manner more favorable to the State so that the legal

conclusions might also be more favorable to the State.

When reviewing a district court’s factual findings to determine if they are clearly

erroneous, this Court does not set aside factual findings merely because this Court may

have reached a different result. Wallop Canyon Ranch, LLC v. Goodwyn, 2015 WY 81, ¶

21, 351 P.3d 943, 950 (Wyo. 2015) (citing Harber v. Jensen, 2004 WY 104, ¶ 7, 97 P.3d

57, 60 (Wyo. 2004)). Under the clearly erroneous standard of review for facts:

we assume that the evidence of the prevailing party below is true and give
that party every reasonable inference that can fairly and reasonably be
drawn from it. We do not substitute ourselves for the trial court as a finder
of facts; instead, we defer to those findings unless they are unsupported by
the record or erroneous as a matter of law.

Id. (quotation marks omitted) (some citations omitted) (citing Pennant Serv. Co. v. True

Oil Co., LLC, 2011 WY 40, ¶ 7, 249 P.3d 698, 703 (Wyo. 2011) (quoting Hofstad v.

Christie, 2010 WY 134, ¶ 7, 240 P.3d 816, 818 (Wyo. 2010))).

The district court’s findings were supported by the record and were not clearly

62
erroneous as a matter of law. When the evidence is viewed in the light most favorable to

the district court’s determination, the factual findings were well supported by the

evidence presented both at the preliminary hearing and at the hearing on Mr. John’s

motion to dismiss.2 They therefore should not be disturbed.

B. The District Court’s Legal Conclusions Were Correct, and the District Court
Properly Concluded that W.S. § 6-2-602(f) Mandated the Case Against Mr.
John be Dismissed

2
For the reasons set forth in previous sections, the district court did not err in holding a

hearing on Mr. John’s motion to dismiss, and the district court properly considered

evidence of record (from the preliminary hearing) and accepted additional evidence at the

hearing on the motion to dismiss. That evidence was viewed by the district court in its

totality, and the district court properly weighed the evidence and reached factual

conclusions based upon all of the evidence available to it. See Collins, 56 Kan. App. 2d

at 149-50 (when determining immunity, the district court must consider the totality of the

circumstances, and the determination must be based upon evidence presented at the

hearing, stipulated to by the parties, or both); Hall, 851 P.2d at 1268-69 (establishing the

district court’s role of weighing the facts); Hardy, 305 Kan. at 1011-12 (clarifying that

the district court must “hear and resolve conflicts in the evidence” and that district courts

must construe the evidence against one party or the other as part of its gatekeeping role in

determining immunity); Wright, 2017 WL at *2 (unpublished) (stating that judges “must

consider the totality of the circumstances then known” to determine whether immunity

applies).

63
 Based upon the district court’s factual findings, it made the following findings

regarding the law of self-defense:

(1) Mr. John was lawfully present in his home, he was not the initial
aggressor, and was not engaged in illegal activity;

(2) Mr. Willow instigated the violence;

(3) Mr. Willow’s violence was contemporaneous with the shooting, and
the risk of serious bodily injury or death to Mr. John or others within the
home was considered imminent by Mr. John;

(4) The encounter was very dangerous and escalated in mere seconds;

(5) Mr. Willow was warned to stay back by Mr. John, but instead of
staying back, he made an unlawful and highly provocative and violent entry
into Mr. John’s home;

(6) A statutory presumption applies that Mr. Willow intended to commit

an unlawful act involving force or violence;

(7) There is no evidence of an act of disengagement on the part of Mr.

Willow once he started running towards Mr. John;

(8) Mr. John held a reasonable and honest belief that deadly force was
necessary to prevent imminent death or serious bodily injury to himself or
another;

(9) A statutory presumption of reasonableness is implicated because Mr.

Willow unlawfully and forcefully entered Mr. John’s home, and the force
used by Mr. John was necessary.

(Tr. Motion to Dismiss H’rg., pp. 118-119). The State argues the district court should

have found the State presented probable cause to believe Mr. John was not entitled to

immunity under W.S. § 6-2-602(f). (Brief of Petitioner, pp. 42, 48-49, 50-51). The State

presents four (4) primary arguments in support of its claim that the district court

64
improperly applied Wyoming’s law of self-defense to the determination of whether Mr.

John was entitled to immunity under W.S. § 6-2-602(f):

(1) Mr. John and Mr. Willow were mutual combatants, making a claim
of self-defense unavailable to Mr. John (and therefore negating his
entitlement to immunity under W.S. § 6-2-602(f));

(2) Mr. John had an obligation to, but failed to pursue reasonable
alternatives before using deadly force (meaning his use of force was not
reasonable defensive force pursuant to W.S. § 6-2-602(f));

(3) Mr. John had a duty to withdraw or retreat, and did not, before using
deadly force (meaning his use of force was not reasonable defensive force
pursuant to W.S. § 6-2-602(f));

(4) Mr. John had a duty to stop firing once the threat ceased, but did not
(meaning his use of force was not reasonable defensive force pursuant to
W.S. § 6-2-602(f)).

(Brief of Petitioner, pp. 50-59).

i. The District Court Properly Concluded Mr. John and Mr. Willow
Were Not Mutual Combatants

The State argues the district court improperly failed to consider whether Mr. John

and Mr. Willow were mutual aggressors, and claims the facts dictated the conclusion they

were. (Brief of Petitioner, pp. 51-52). The State also concedes the district court properly

concluded Mr. John was not the initial aggressor. (Id. at 56). If Mr. John and Mr.

Willow were mutual aggressors, Mr. John would not be entitled to immunity pursuant to

W.S. § 6-2-602(f) because an aggressor is not entitled to a claim of self-defense unless he

first withdraws and makes evident to his adversary his desire to end the conflict.

Widdison v. State, 2018 WY 18, ¶ 14, 410 P.3d 1205, 1211 (Wyo. 2018); Haire v. State,

2017 WY 48, ¶ 36, 393 P.3d 1304, 1314 (Wyo. 2017). Because W.S. § 6-2-602(f)

65
provides immunity on the basis of the use of reasonable defensive force, if the force used

was not reasonable defensive force by virtue of not being considered “defensive” force

(because force used by an aggressor is not “defensive” force), W.S. § 6-2-602(f)

immunity is not available to an aggressor in a conflict.

The State fails to acknowledge that under Wyoming law, a finding that two

individuals are mutual combatants is a conclusion that both parties were aggressors.

“Our case law also provides that two individuals who mutually agree to fight are both

considered aggressors, making a self-defense theory unavailable to either of them.”

Coburn v. State, 2001 WY 30, ¶ 13, 20 P.3d 518, 521 (Wyo. 2001) (citing Leeper v.

State, 589 P.2d 379, 383 (Wyo. 1979)). An explicit finding that one party was not the

aggressor before deadly force was used precludes a finding that both individuals were

aggressors; which also precludes the finding that the individuals were mutual combatants.

The district court did consider the possibility, and concluded the parties were not

mutual aggressors. The district court found Mr. Willow instigated the violence (was the

aggressor), and explicitly concluded Mr. John was not the initial aggressor. (Tr. Motion

to Dismiss H’rg., pp. 118-19). Both findings were supported by substantial evidence and

both findings logically precluded a finding that Mr. Willow and Mr. John were mutual

aggressors. The district court did not err in its finding.

The district court had available to it evidence that Mr. Willow stated he was going

to beat Mr. John up. (Tr. Preliminary H’rg, pp. 12, 18, 49; Tr. Motion to Dismiss H’rg.,

pp. 32, 42, 53, 60, 63, 70, 95). The evidence also showed Mr. Willow drove to Mr.

66
John’s house after he made up his mind to beat Mr. John up. (Tr. Preliminary H’rg, pp.

12, 18, 43, 49, 51; Tr. Motion to Dismiss H’rg., pp. 25, 29, 32). Mr. John, while standing

at the threshold of his home or on his porch, saw Mr. Willow, Ms. Hayden, and Mr.

Heims approaching his home on foot, after parking several spaces away so they would

not be seen “before or after.” (Tr. Preliminary H’rg, pp. 12, 19, 35; Tr. Motion to

Dismiss H’rg., pp. 25, 29, 32, 39, 71, 73-74, 78-80, 85). Before shots were fired, Mr.

John yelled, “get back” or “get out of here”; before he fired, he said, “back the F up”

approximately three (3) times before any shots were fired. (Tr. Preliminary H’rg, pp. 13,

20, 36; Tr. Motion to Dismiss H’rg., pp. 26, 32, 41, 78-79). Mr. Willow charged up Mr.

John’s steps, toward Mr. John, in an angry manner. (Tr. Preliminary H’rg, pp. 13, 37, 54;

Tr. Motion to Dismiss H’rg., pp. 31-32, 39-41, 74, 79, 80-81, 86, 90).

None of these facts indicate a mutual combat situation. The district court’s factual

findings, which will not be disturbed unless they are clearly erroneous, support the

district court’s conclusion that Mr. Willow was the aggressor. Mr. Willow’s acts of

physical aggression in charging towards Mr. John’s house, sprinting up the steps in an

angry manner, and moving quickly toward Mr. John and Mr. John’s home all constituted

evidence sufficient to support the district court’s conclusion that Mr. Willow was the

aggressor. Drennen, 2013 WY at ¶ 34, 311 P.3d at 128 (some sort of physical aggression

or threat of the imminent use of deadly force is required before a person is considered an

aggressor).

The State argues Mr. John’s text messages and phone conversation with Mr.

67
Willow prior to Mr. Willow arriving at Mr. John’s house mandated the conclusion that

Mr. John was a mutual combatant with Mr. Willow. However, words alone are

insufficient to render someone an aggressor. Drennen, 2013 WY at ¶ 38, 311 P.3d at

129. Additionally, arming oneself in anticipation of an attack is not sufficient to render

one an aggressor. Widdison, 2018 WY at ¶ 33, 410 P.3d at 1216. Prior to Mr. Willow

charging towards Mr. John, Mr. John had employed mere words. The first person to

show any outward sign of physical aggression was Mr. Willow, when he charged toward

Mr. John. Even at that point, Mr. John took steps to avoid the confrontation. He backed

up into his home, and he gave warning words asking Mr. Willow to back off. (Tr.

Preliminary H’rg, pp. 13, 20, 36-37, 54; Tr. Motion to Dismiss H’rg., pp. 26, 31-32, 39-

41, 78-79, 80, 86, 90).

The district court’s conclusion that Mr. Willow was the initial aggressor was not in

error. The finding that Mr. Willow was the initial aggressor foreclosed a finding that Mr.

John and Mr. Willow were mutual combatants, because the district court concluded (and

the State conceded the finding was proper) that Mr. John was not an aggressor. (Tr.

Motion to Dismiss H’rg., pp. 118-19; Brief of Petitioner, p. 56). The State’s argument

that the district court erred in concluding Mr. John was entitled to immunity under W.S. §

6-2-602(f) because Mr. John was a mutual combatant with Mr. Willow is without merit.

ii. The District Court Did Not Err in Failing to Find Mr. John Was
Required To, But Did Not, Pursue Reasonable Alternatives Prior to
Using Deadly Force

The State argues Mr. John had a duty to consider reasonable alternatives, but did

68
not, prior to using deadly force. (Brief of Petitioner, pp. 52-59). Wyoming’s law on self-

defense provides that before using deadly force, an individual must consider reasonable

alternatives, one of which may be retreat. Drennen, 2013 WY at ¶¶ 23-38, 311 P.3d at

127-29; Haire, 2017 WY at ¶ 36, 393 P.3d at 1313. The idea of reasonable alternatives,

one of which may be retreat, reflects the concept that before deadly force may be

employed, the force must be both necessary and reasonable in scope. That is, there is no

need to use deadly force if there is a reasonable way to steer clear of it. Haire, 2017 WY

at ¶ 36, 393 P.3d at 1313.

The castle doctrine, though, alters these requirements somewhat because once a

person is in their home, they are considered to be “at their wall.” Palmer v. State, 9 Wyo.

40, 59 P. 793, 795 (Wyo. 1900); Widdison, 2018 WY at ¶ 13, 410 P.3d at 1211. The duty

to consider reasonable alternatives outside the home exists because the law presumes

there is somewhere safer to go – home. Widdison, 2018 WY at ¶ 12, 410 P.3d at 1210.

The home is a place “critical for the protection of family” and requiring retreat would

require one to leave what is presumed to be the safest place. Id. Under Wyoming law, an

individual “assailed [in the home], may stand his ground and resist the attack. He is

under no duty to take to the fields and the highways, a fugitive from his own home.

Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home.” Id.

(citing reference omitted).

The castle doctrine is codified at W.S. § 6-2-602(b), (c), and (d). The statute

creates presumptions which are applicable when the home is the site of the use of deadly

69
force. Specifically, there is a presumption of the reasonable fear of imminent death or

serious bodily injury if an intruder is in the process of unlawfully and forcefully entering

another’s home and if the person using deadly force had reason to believe that unlawful

and forceful entering was occurring. W.S. § 6-2-602(b)(i), (ii). This presumption was

correctly applied in Mr. John’s case because he was in his home and Mr. Willow was in

the process of unlawfully and forcefully entering Mr. John’s house when deadly force

was used. (Tr. Preliminary H’rg., pp. 11, 13, 37, 40, 51, 53-54; Tr. Motion to Dismiss

H’rg., pp. 31-32, 39-42, 64, 79-80, 86, 90, 91). Mr. John obviously knew this was

occurring – he warned Mr. Willow to back off and retreated into his home before using

the deadly force. (Tr. Preliminary H’rg, pp. 13, 20, 36-37, 54; Tr. Motion to Dismiss

H’rg., pp. 26, 31-32, 39-41, 78-79, 80, 86, 90).

Because Mr. John was in his home when deadly force was used, he had no duty to

retreat. The State argues Mr. John should have called 911 prior to Mr. Willow arriving at

his house, as this would have been a reasonable alternative to the use of deadly force.

(Brief of Petitioner, p. 53). The State overlooks the fact that the need to use deadly force

did not arise until Mr. Willow stormed Mr. John’s home. Mr. John did not have the

opportunity to consider any alternatives at that time because the situation escalated to

such a dangerous level so quickly. The district court properly so found. (Tr. Motion to

Dismiss H’rg., pp. 118-19).

Additionally, the Wyoming Supreme Court has never explicitly held there is a

duty to consider reasonable alternatives before using deadly force in one’s home. The

70
requirement of considering reasonable alternatives no doubt applies outside the home, but

since a man is presumed to already be “at his wall” in the home, there may not be a duty

to consider reasonable alternatives prior to using deadly force. See Widdison, 2018 WY

at ¶ 13, 410 P.3d 1205 (Wyo. 2018); Haire, 2017 WY 48, 393 P.3d 1304 (Wyo. 2017);

Drennen, 311 P.3d 116 (Wyo. 2013); Palmer, 9 Wyo. 40, 59 P. 793 (Wyo. 1900). One

reasonable alternative to retreat is withdrawal. Since withdrawal necessarily

encompasses more activity than does retreat, if there is no duty to retreat within the

home, there certainly cannot be a duty to withdraw.

We acknowledge our statement in Best that “retreat is not the same as

withdrawal.” 736 P.2d at 746. We explained that a “‘withdrawal’ is an
abandonment of the struggle and such abandonment must be perceived or
made known to the adversary.” Id. (quoting State v. Nunn, 697 S.W.2d 244,
247 (Mo. App. 1985)). Retreat, on the other hand, is abandonment alone
and does not require making that abandonment known to the other party.
See State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725, 727 (Mo. 1950)
(“There is a difference between ‘withdrawal in good faith’ from combat,
and a mere ‘retreat’ which may be and often is a continuance of
hostilities.”).

Farrow v. State, 2019 WY 30, ¶ 29, 437 P.3d 809, 819 (Wyo. 2019). Other than

withdrawal or retreat, it is difficult to imagine what other reasonable alternative Mr. John

should have considered at the very moment Mr. Willow charged at him while in his

home.

The concept of reasonable alternatives draws from the prong of necessity under

the law of self-defense. That is, before force (or in this case, deadly force) may be used,

it must be necessary. Outside the home, deadly force is only necessary if the individual

employing deadly force has no reasonable alternative – if there is no safer place to go or

71
safer way to respond. Inside the home, though, an individual is already “at their wall.”

There is no safer place to go, and the person unlawfully and forcefully entering is

presumed to pose a threat of the imminent peril of death or serious bodily injury to the

home’s inhabitants. W.S. § 6-2-602(b)(i); Widdison, 2018 WY at ¶ 13, 410 P.3d at 1210.

That is, there is no reasonable alternative to deadly force when someone is unlawfully

and forcefully entering one’s home, posing the imminent peril of death or serious bodily

injury to the inhabitants. There is no reasonable alternative because there is no safer

place to go than the home.

Mr. John faced a very real imminent threat of serious bodily injury or death when

Mr. Willow aggressively and quickly charged into his home. Mr. John was entitled to

use deadly force to repel that danger. In fact, Mr. John did more than he was required to

do before using deadly force: he warned Mr. Willow to get back (or to cease the

aggression), and he closed the door. (Tr. Preliminary H’rg, pp. 13, 20, 36; Tr. Motion to

Dismiss H’rg., pp. 26, 32, 39-42, 78-79). The district court did not err in failing to

conclude that Mr. John failed to consider reasonable alternatives prior to using deadly

force. In the moments immediately prior to Mr. John using deadly force, the situation

had become deadly very quickly, Mr. John had no duty to consider reasonable

alternatives because he was in his home, Mr. Willow was in the process of unlawfully

and forcefully entering the home, and Mr. John held a reasonable belief he and the other

inhabitants of the home were in imminent peril of death or serious bodily injury.

Mr. John used reasonable defensive force pursuant to W.S. § 6-2-602(f). The

72
district court’s conclusion in this regard was well supported factually and legally and

should not be disturbed.

iii. The District Court Did Not Err in Failing to Conclude Mr.
John had a Duty to Withdraw or Retreat, and Did Not, Before
Using Deadly Force

The State argues the district court erred in failing to conclude Mr. John had a duty

to withdraw or retreat before using deadly force. (Brief of Petitioner, pp. 50-59). The

State claims Mr. John was engaged in illegal activity before he used deadly force, and

because he was engaged in illegal activity, Mr. John’s right to stand his ground did not

exist; he had a duty to retreat before using deadly force. (Brief of Petitioner, pp. 53-54).

The State claims Mr. John’s text messages to Mr. Willow prior to Mr. Willow arriving at

Mr. John’s house constitute evidence that Mr. John provoked the fight, agreed to fight,

and encouraged crime in a manner that created a clear and present danger that a crime

would be committed, all in violation of various Wyoming statutes and the Casper City

Code. (Id.).

The castle doctrine and its presumptions apply to a person in their own home who

is acting “without fault.” Widdison, 2018 WY at ¶ 13, 410 P.3d at 1211. The law of self-

defense as it considers “fault” revolves around the concept of aggressors. That is, if a

person is an initial aggressor, they are not “without fault,” and therefore have a duty to

withdraw before using deadly force. Id. at ¶ 14, 1211. The State’s argument that Mr.

John violated the law in various ways by sending text messages to Mr. Willow, and

therefore was not “without fault,” overlooks the fact that words alone are not sufficient to

73
render a person an aggressor. Drennen, 2013 WY at ¶ 38, 311 P.3d at 129. Nor is

arming oneself. Widdison, 2018 WY at ¶ 33, 410 P.3d at 1216.

The district court did not err in failing to conclude that Mr. John was “at fault” by

using mere words in text messages before Mr. Willow even arrived at his home. Mr.

John’s text messages and Mr. John’s choice to arm himself in anticipation of Mr.

Willow’s violence did not create a situation where Mr. John was legally “at fault,” and

did not create a duty on Mr. John’s part to retreat. None of Mr. John’s actions taken prior

to Mr. Willow’s arrival created “fault” on Mr. John’s part, and the district court did not

err in failing to so conclude.

The State relies upon W.S. § 6-2-602(e) in arguing that Mr. John had a duty to

retreat before using deadly force because he was “engaged in illegal activity.” W.S. § 6-

2-602(f); (Brief of Petitioner, pp. 53-54). Even if, arguendo, it is presumed that Mr. John

violated a Wyoming criminal statute or Casper City Code in sending the text messages he

sent prior to Mr. Willow’s arrival at his house, this “illegal activity” did not create a duty

for Mr. John to retreat from his own home.

Section 6-2-602(e) is a codification of Wyoming’s “stand your ground” law. This

law applies when an individual is in a place they have a right to be (other than in their

home). Drennen, 2013 WY at ¶ 24, 311 P.3d at 126; State v. Bristol, 53 Wyo. 304, 84

P.2d 757, 761-67 (Wyo. 1938). The concept of “stand your ground” holds that an

individual who has a right to be in a particular place need not retreat before using

reasonable defensive force so long as they are not the initial aggressor and so long as they

74
are not engaged in illegal activity. Drennen, 2013 WY at ¶ 23, 311 P.3d at 125; Garcia,

667 P.2d at 1153; State v. Flory, 40 Wyo. 184, 276 P. 458, 462-63 (Wyo. 1929). The

“illegal activity” component refers to the requirement that before “stand your ground”

may apply by virtue of a person being in a place they have a right to be, they must

actually have a right to be there. A person cannot trespass or break into someone’s home

and then claim the right to stand their ground because they are engaged in illegal activity;

they do not have a right to be in these particular places. The “stand your ground”

doctrine would not provide them a right to use reasonable defensive force.

The legislature is presumed to enact its statutes with a full understanding of the

law. Kite, 2018 WY at ¶ 29, 424 P.3d at 264; Vaughn, 2017 WY at ¶ 10, 391 P.3d at

1091. The case law underpinning W.S. § 6-2-602(e) applies the “stand your ground”

concept to places other than the defendant’s home. See State v. Bristol, 53 Wyo. 304, 84

P.2d 1148 (Wyo. 1983); Garcia, 667 P.2d at 1153; Patterson v. State, 682 P.2d 1049,

1052-53 (Wyo. 1984); Drennen, 2013 WY at ¶¶ 22-31, 311 P.3d at 124-131. Section 6-

2-602(e) therefore presumably only applies to situations outside the home. The castle

doctrine applies to self-defense situations inside the home, and is more defensive of the

use of force than the “stand your ground” law. W.S. § 6-2-602.

While the law as it applies to aggressors is the same outside or inside the home (an

aggressor, even if inside the home, has, in a general sense, a duty to withdraw from the

attack and inform their adversary of their intention to end the conflict before they may

regain the right of self-defense), the law regarding “illegal activity” seems to have no

75
place in the home. Widdison, 2018 WY at ¶ 14, 410 P.3d at 1211. The statute makes no

mention of an “illegal activity” exception to the castle doctrine presumptions, and none

can be found in the case law (aside from discussion of aggressor status, which does apply

in the home). W.S. § 6-2-602; Widdison, 2018 WY 18, 410 P.3d 1205 (Wyo. 2018);

Haire, 2017 WY 48, 393 P.3d 1304 (Wyo. 2017) (although the castle doctrine did not

apply, the Court discussed the castle doctrine); Palmer v. State, 9 Wyo. 40, 59 P. 793

(Wyo. 1900).

Even if such an exception were found to exist, and this Court were to find that

being engaged in illegal activity inside the home creates a duty to retreat before using

deadly force, no such duty to retreat would apply to Mr. John. The “illegal activity” in

which the State claims Mr. John was engaged took place before Mr. Willow even arrived

at Mr. John’s home. (Tr. Motion to Dismiss H’rg., pp. 50-55). Even if, arguendo, the

activity is presumed to be illegal, this activity did not create a duty for Mr. John to retreat

before using deadly force because the two events were too far separated in time to affect

the statutory self-defense presumptions. Indeed, the district court specifically found Mr.

John was not engaged in illegal activity at the time he employed the use of deadly force.

(Tr. Motion to Dismiss H’rg., pp. 118-19).

The facts support the district court’s conclusion Mr. John was not engaged in

illegal activity. Around the time Mr. John used deadly force, Mr. John was standing

either inside his house or on his porch, warning Mr. Willow, Ms. Hayden, and Mr. Heims

to get back. (Tr. Preliminary H’rg, pp. 13, 20, 36; Tr. Motion to Dismiss H’rg., pp. 26,

76
32, 39, 41, 78-80, 85). At that very moment, Mr. John was not encouraging a crime or

inciting a crime. To the contrary, Mr. John was trying to keep a crime from occurring.

He was asking Mr. Willow to stop approaching. At the time Mr. John used deadly force,

and in the moments immediately preceding that use of deadly force, Mr. John was not

engaged in any illegal activity that would trigger a duty to retreat. Therefore, even if this

Court were to create an exception to the “no duty to retreat” rule inside the home, and

hold that an individual who is engaged in illegal activity inside the home has a duty to

retreat before using reasonable defensive force, such a duty would not apply to Mr. John

given the facts of this case.

Moreover, the district court’s findings of fact supported a finding that Mr. John

did, in fact, retreat before using deadly force. At the time Mr. John was shining his

flashlight on Mr. Willow and the other members of his group, and while he was yelling at

Mr. Willow to get back, the district court’s findings of fact implied Mr. Willow was not

yet all the way inside his house. (Tr. Preliminary H’rg, pp. 13, 20, 36; Tr. Motion to

Dismiss H’rg., pp. 26, 32, 39, 41, 78-80, 85). The district court found Mr. John stepped

“back into his home” as Mr. Willow sprinted up the steps. (Tr. Preliminary H’rg, pp. 13,

37, 54; Tr. Motion to Dismiss H’rg., pp. 31-32, 39-41, 79, 80, 86, 90). There was also

evidence that Mr. John closed his door as Mr. Willow was sprinting toward him; Mr.

Willow burst through the door and it was only then that Mr. John began using deadly

force. (Tr. Motion to Dismiss H’rg., pp. 39-42). Therefore, even if this Court were to

create an exception to the “no duty to retreat” rule inside the home if the person

77
employing the use of force were engaged in illegal activity, and if it is presumed,

arguendo, that Mr. John was engaged in illegal activity contemporaneous with his use of

deadly force, the district court’s findings of fact support the conclusion that Mr. John did,

in fact, retreat before using deadly force.

There is no evidence Mr. John was engaged in illegal activity immediately prior to

using deadly force or at the time he used deadly force. Even if he were, it would not

create a duty to retreat inside the home. And even if such a duty were to exist, the district

court’s findings of fact support the conclusion that Mr. John did, in fact, retreat before

using deadly force. The district court did not err in failing to conclude that Mr. John had

a duty to retreat, and did not, before using deadly force on the basis that he was engaged

in illegal activity.

iv. The District Court Did Not Err in Failing to Conclude that Mr.
John’s Use of Force was Not Reasonable Because Mr. John
Continued to Use Deadly Force After the Threat Ceased to Exist

The State claims the district court erred in finding Mr. John’s use of force was

reasonable because Mr. John continued to use deadly force after the threat posed by Mr.

Willow ceased to exist. (Brief of Petitioner, p. 59). The State argues that because

evidence existed that some of the shots Mr. John fired hit Mr. Willow in the front and

some were fired after Mr. Willow was on the ground, the district court was compelled to

conclude Mr. John’s use of force was not reasonable. (Id.).

The State overlooks the district court’s finding of fact (and uncontroverted

evidence) that the shots Mr. John fired were in “rapid succession.” After Mr. John started

78
firing, there was no break in the nine (9) shots until they ceased. (Tr. Preliminary H’rg,

pp. 10, 16, 23, 25, 38, 41-42, 56-57; Tr. Motion to Dismiss H’rg., pp. 29, 48, 81-82, 86,

93). It is true that if the danger ceases before a fatal shot is fired, the person using deadly

force is no longer entitled to use that deadly force if they know the peril no longer exists.

State v. Goettina, 61 Wyo. 420, 456-57, 461 (Wyo. 1945). If the person upon whom

deadly force is used no longer poses a threat, the use of deadly force is no longer

justified. Id.

The source of this component of self-defense law draws from the concept of

“necessity”; there must be no alternative. Patterson, 682 P.2d at 1053. If the use of

deadly force so neutralizes the threat that the peril which originally justified the use of

deadly force no longer exists, the use of deadly force is no longer necessary. Id. Implicit

in this concept is the presumption that before the right to use deadly force ceases on the

basis of the neutralization of the threat, there must be an opportunity for the person

employing the use of deadly force (or a reasonable person in their shoes) to realize the

threat has been neutralized. Goettina, 61 Wyo. at 456-57. If the threat has been

neutralized and the person employing the use of deadly force realized it, but nonetheless

proceeded to use deadly force, an inference arises that the deceased was voluntarily killed

instead of justifiably killed in self-defense. Id. at 459.

In Patterson, the defendant hit the victim’s head against a console in a van.

Patterson, 682 P.2d at 1050-51. After some time, the van was stopped and the victim

was taken out of the van (unconscious or semi-conscious). Id. Evidence indicated Mr.

79
Patterson stabbed the victim in the neck and the victim subsequently died. Id. Mr.

Patterson claimed he was entitled to a claim of self-defense, and claimed he did not stab

the victim, and when he hit the victim’s head against the console in the van, he did so in

self-defense. The Wyoming Supreme Court concluded Mr. Patterson was not entitled to

a claim of self-defense because for self-defense to apply, the use of deadly force must be

necessary. Id. at 1053. “The defense of self-defense can only be used when there are no

other alternatives but to kill the assailant.” Id. The Court concluded that no reading of

the evidence would justify the conclusion that Mr. Patterson had to either hit the victim’s

head against the console or had to stab the victim in the neck. The Court focused upon

the times during the events at which the danger had ceased – and no matter which factual

theory was examined, found that at the time Mr. Patterson used deadly force, the use of

deadly force was not necessary because there were alternatives to using deadly force.

These circumstances do not exist in Mr. John’s case. No evidence was presented

which would support the conclusion that Mr. John began firing, and once he (or a

reasonable person in his position) realized Mr. Willow was incapacitated, he had the

opportunity to realize the threat no longer existed and stop firing, but failed to stop firing.

To the contrary, the evidence indicated Mr. John began using deadly force and stopped

once the threat was neutralized. Mr. John did not use all 30 rounds which were in the

magazine. He used nine (9). (Tr. Preliminary H’rg, pp. 10, 23, 25, 38; Tr. Motion to

Dismiss H’rg., pp. 48, 81-82). Mr. John fired the shots in rapid succession, with no pause

which would indicate an opportunity to realize the threat was neutralized. (Tr.

80
Preliminary H’rg, pp. 16, 41-42, 56-57; Tr. Motion to Dismiss H’rg., pp. 29, 86, 93).

There was no evidence presented which would support a finding that there was

such a pause in events that Mr. John’s subsequent use of deadly force could be

considered unreasonable or unnecessary. The district court did not err in failing to

conclude that Mr. John’s use of force was unreasonable on the basis that some of the

shots which were fired hit Mr. Willow in the back. The district court’s findings of fact

supported the conclusion that Mr. John fired the shots in rapid succession, using only that

force which was reasonably necessary under the circumstances to neutralize the threat he

faced. Mr. John stopped firing once the threat ceased, using nine (9) of the 30 rounds in

the magazine. The district court’s failure to conclude that Mr. John’s use of force was

not reasonable on the basis of continuing to use deadly force after the threat was

neutralized was not in error.

v. The District Court Properly Concluded Mr. John Was Entitled to

Immunity Pursuant to W.S. § 6-2-602(f)

Based upon its factual findings, which were not clearly erroneous, the district

court properly concluded Mr. John was entitled to immunity pursuant to W.S. § 6-2-

602(f). Section 6-2-602(f) directs that if a person uses reasonable defensive force as

defined in subsection (a) of the same statute, that person shall not be prosecuted. W.S. §

6-2-602(f). Subsection (a) directs that defensive force is reasonable when it is:

the defensive force that a reasonable person in like circumstances would

judge necessary to prevent an injury or loss, and no more, including deadly
force if necessary to prevent imminent death or serious bodily injury to the
person employing the deadly force or to another person. As used in this
subsection, “necessary to prevent” includes a necessity that arises from an

81
 honest belief that the danger exists whether the danger is real or apparent.

W.S. § 6-2-602(a). Of course, statutory presumptions apply when the deadly force is

used in one’s home. W.S. § 6-2-602(b), (c), and (d). The district court properly followed

the dictates of the statute.

The district court determined Mr. John’s use of deadly force was reasonable. The

use of deadly force was reasonable because Mr. John was in his own home when the

situation arose. (Tr. Motion to Dismiss H’rg., pp. 118-19). Mr. John was not the

aggressor. (Id.). Mr. John was presumed to hold a reasonable fear of the imminent peril

of death or serious bodily injury because Mr. Willow was in the process of unlawfully

and forcefully entering Mr. John’s home. W.S. § 6-2-602(b)(i); (Tr. Motion to Dismiss

H’rg., pp. 118-19). Mr. John knew of this fact. W.S. § 6-2-602(b)(ii); (Tr. Motion to

Dismiss H’rg., pp. 118-19). The district court applied the presumption that Mr. John held

a reasonable fear of the imminent peril of death or serious bodily injury, rendering Mr.

John’s actions reasonable. (Tr. Motion to Dismiss H’rg., pp. 118-19). None of the

statutory exceptions to the presumption applied. W.S. § 6-2-602(c). The district court

also properly presumed Mr. Willow entered Mr. John’s home with the intent to commit

an unlawful act involving force or violence, rendering Mr. John’s actions necessary.

W.S. § 6-2-602(d); (Tr. Motion to Dismiss H’rg., pp. 118-19).

The district court’s ultimate conclusion that Mr. John was entitled to immunity

pursuant to W.S. § 6-2-602(f) followed the statute precisely. The district court’s legal

findings were supported by the court’s factual findings, which were, in turn, supported by

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substantial evidence and were not clearly erroneous. As the court applied the statutory

presumptions and analyzed whether Mr. John’s use of defensive force was reasonable,

the court precisely followed the dictates of the statute and Wyoming’s self-defense law.

While the district court did apply a standard different than that advocated for by

Mr. John, the district court’s conclusions need not be upset even if this Court agrees with

Mr. John and adopts a different standard than that applied by the district court. The

district court applied a burden of probable cause, and placed the burden on the State. Mr.

John advocates for a burden of a preponderance of the evidence, with the burden on the

State.

Because the burden of probable cause is less than prima facie proof, probable

cause is most certainly less of a burden than is a preponderance of the evidence. Wright

v. Com., 2017 WL 639386 (Ky. 2017) (unpublished). Probable cause is “a fluid concept

– turning on the assessment of probabilities in particular factual contexts – not readily, or

even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232

(1983). It has been described as, “’the facts and circumstances . . . sufficient . . . to

warrant a man of reasonable caution in the belief that’ an offense has been or is being

committed” and that the defendant committed it. Raigosa v. State, 562 P.2d at 1013;

Wyo. R. Crim. P. 5.1(b).

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the

greater number of witnesses testifying to a fact but by evidence that has the
most convincing force; superior evidentiary weight that, though not
sufficient to free the mind wholly from all reasonable doubt, is still

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 sufficient to incline a fair and impartial mind to one side of the issue rather
than the other.

Black’s Law Dictionary, 1220 (8th ed. 2004). The district court applied the lowest

possible burden to the State, and still found the State could not meet even that lowest

burden. Therefore, if this Court were to agree with Mr. John that the proper burden that

should apply in W.S. § 6-2-602(f) immunity hearings (after the defendant makes a prima

facie showing of the availability of the defense) is a preponderance of the evidence

standard with the State bearing the burden, the outcome of Mr. John’s case would be the

same: he would be entitled to immunity pursuant to W.S. § 6-2-602(f). If the State could

not even establish by probable cause that Mr. John was not entitled to W.S. § 6-2-602(f)

immunity, the State certainly would not meet the burden of establishing by a

preponderance of the evidence that Mr. John was not entitled to W.S. § 6-2-602(f)

immunity.

Therefore, whether this Court finds the district court applied the correct standard

or whether this Court finds the district court should have applied a preponderance of the

evidence standard with the burden on the State, the district court’s factual findings, legal

conclusions, and ultimate decision to grant Mr. John immunity pursuant to W.S. 6-2-

602(f) need not, and should not be disturbed. The factual findings were not clearly

erroneous, and the legal conclusions tracked the statute and Wyoming’s self-defense law

precisely. The district court did not err in reaching the conclusion that Mr. John was

entitled to immunity pursuant to § 6-2-602(f), and properly concluded the case against

him must be dismissed.

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 CONCLUSION.

Mr. John respectfully requests this Honorable Court hold the district court’s pre-

trial hearing and dismissal of the charge against him were a proper exercise of the district

court’s powers. He requests this Court find the correct standards and procedures to be

applied in cases involving W.S. § 6-2-602(f) immunity are as set forth in Argument II(C),

supra. Mr. John requests this Court decline to revisit the district court’s factual findings

and legal conclusions. If the Court does revisit the district court’s findings and legal

conclusions, he submits the factual findings were not clearly erroneous, and the legal

conclusions were correct. The district court’s conclusion that Mr. John was entitled to

immunity should not be disturbed.

Respectfully submitted this 9th day of September, 2019.

s/Kirk A. Morgan
Kirk A. Morgan

s/Desiree Wilson
Desiree Wilson
Wyoming State Bar No: 7-4764
Attorney for Respondent
Senior Assistant Appellate Counsel
Appellate Division
Office of the State Public Defender
Rogers Bldg., 316 West 22nd Street
Cheyenne, Wyoming 82002
Telephone (307) 777-3451
desiree.wilson@wyo.gov

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 CERTIFICATE OF SERVICE

The undersigned hereby certifies that on September 9, 2019, a true and correct

copy of the foregoing was served electronically via the Wyoming Supreme Court C-

Track Electronic Filing System, addressed as follows:

Joshua Eames
Senior Assistant Attorney General
2320 Capitol Avenue
Cheyenne, WY 82002

Kevin Taheri
Special Assistant Attorney General
2320 Capitol Avenue
Cheyenne, WY 82002

Samuel Williams
Assistant Attorney General
2320 Capitol Avenue
Cheyenne, WY 82002

The undersigned also certifies that all required privacy redactions have been made and,

with the exception of any required redactions, this document is an exact copy of the

written document filed with the Clerk. Furthermore, this document has been scanned for

viruses and is free of viruses.

s/Kirk A. Morgan
Kirk A. Morgan

s/Desiree Wilson
Desiree Wilson

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 APPENDIX A

Order Dismissing Case Following W.S. 6-2-602 Hearing

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