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Smith wins appeal

Wyoming Supreme Court agrees the trial of Marty Smith was flawed


February 18, 2021

The Wyoming Supreme Court has overturned the jury’s guilty verdict in Marty Smith’s conviction as an accomplice to the death of local man Doug Haar. Smith was sentenced to up to 18 years in jail on felony counts of accessory before the fact to involuntary manslaughter and accessory to aggravated assault and battery.

Haar died from traumatic asphyxiation in the early hours of August 1, 2018 after an altercation with Smith and Jessie Johnson at a local travel center. Smith and Haar were said to have bickered and then begun pushing each other.

When Johnson became involved, he took Haar to the ground and placed him in a chokehold, which resulted in Haar’s death. Johnson and Smith were tried separately, with Smith charged as an accessory to the crimes of which Johnson was accused.

At an appeal hearing in September, Senior Assistant Appellate Counsel Desiree Wilson argued that Smith was not given a fair trial because jury members were not issued with a specific instruction before they retired to consider their verdict. She suggested the jury did not have all the relevant case law available to them and their conclusion was based on an incomplete understanding of the law.

The instruction Wilson referred to would have explained the concept of a person’s right to defend another person. Wyoming law acknowledges the right come to another’s defense if you have a reasonable belief that person is in imminent danger of harm or death.

Following the hearing, Supreme Court Justices retired to consider the arguments and issue a written opinion. This was made available on February 12.

The appeal was based on a new argument. The written opinion notes that the Supreme Court generally does not consider arguments made for the first time on appeal, except when the issue raises jurisdictional questions or is of a fundamental nature; in this case, the Supreme Court considered the argument to fall into the latter category.

The opinion considered Smith’s status as the “initial aggressor,” a term that requires some sort of physical aggression or the threat of imminent use of deadly force. It is not, however, necessarily the case that the first person to use physical force in a conflict is the initial aggressor – otherwise, as stated in the opinion, a person would have to wait until their assailant had struck the first blow before they were able to respond.

To determine whether Smith was the initial aggressor requires considering, “the character of her aggression, her intent and whether she knew or should have known that her use of physical force would produce the altercation that eventually ensued.” The Supreme Court concluded that this question should have been submitted to the jury.

When viewed in the light most favorable to Smith, according to the opinion, the video of what transpired at the travel center shows that Haar behaved in an “angry and physically aggressive manner” from the outset. This included gesturing and pointing angrily, yelling and striding aggressively towards both Smith and Johnson.

The video also shows “when likewise viewed in the proper light” that, each time Smith used physical force, it was either to push Haar toward the exit and away from Johnson or to intervene between the two men.

The Supreme Court determined that Smith’s testimony supports this view of the video. She testified that Haar was angry about her relationship with Johnson and that she knew from past experience that he could become physically violent when angry.

Smith is quoted as testifying that: “he was really angry, and I was trying to get him to leave. I kept telling him to go. I’d push him out of the store. And I thought he was going to hurt me or fight Jessie, and I didn’t want no fights, and I just tried to stop them.”

The convenience store clerk also testified that Smith “butted in” to the primary conflict between Haar and Johnson.

According to the opinion, this evidence created a disputed issue of fact concerning Smith’s intent and whether her use of physical force was as an aggressor or defender, and also as to whether she should have known that her use of physical force would result in the altercation that ultimately occurred.

The opinion notes that Smith testified that Haar laughed at her while she was hitting him and that, in the past when they had fought, he had had the same reaction.

“The video confirms this. At times Mr. Haar laughed at her and at other times he appears to goad or taunt her into hitting him,” according to the opinion.

“A reasonable inference from this evidence is that Ms. Smith had no reason to believe that her physical interference would cause a further altercation. Indeed, throughout the video, Mr. Haar does not appear particularly bothered by Ms. Smith’s use of physical force and even helped her up when she fell to the ground.”

It was not until just before the altercation that resulted in Haar’s death that he began to react violently to her. Each time he chest-bumped Johnson, says the opinion, Smith would intervene and Haar would drag her away or throw her to the floor.

“An inference could reasonably be drawn that Ms. Smith’s behavior prompted him to throw her to the ground, not in an effort to defend against her, but because she was interfering with his attack on Mr. Johnson,” according to the opinion.

A future jury might view the evidence differently, says Chief Justice Davis in the opinion, but the evidence is there to require that the question of her status as the aggressor be submitted to the jury.

The Supreme Court also considered the evidence that Smith was acting in defense of another. If she had reasonably believed Johnson was in immediate danger of unlawful bodily harm, this would have justified her in using reasonable and necessary force to defend him.

The opinion notes that Haar said to Johnson, “I’m going to kill you,” that Johnson twice asked the store clerk to call law enforcement, that Haar continued to yell threats at Johnson during the fight and that, during the fight, Haar kept trying to hit Johnson and Smith held his arm to prevent this and try to calm him.

“Accepting this evidence as true, as we must, we can only conclude that it was sufficient to support Ms. Smith’s reasonable belief that she had to act to defend Mr. Johnson,” according to the opinion.

The Supreme Court concluded that “defense of another” is supported by evidence and should have been given to the jury as an instruction. Smith had two defenses to the charges against her, says the opinion: the first is that no felony was committed because Johnson acted in self-defense, and the second is that she did not knowingly aid or abet a felony because “she acted not to assist Mr. Johnson in his chokehold but because she reasonably believed the force that she used was necessary to defend him.”

In other words, even if Johnson had been found guilty of the underlying felony by Smith’s jury, it could still acquit Smith if it found she did not knowingly aid or abet that felony. Her perceptions of what was happening and how much force she used are thus relevant to the jury’s decision and the Supreme Court ruled that the jury should have been instructed accordingly.

On this basis, the Supreme Court reversed the verdict and remanded the case back to District Court.


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