IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 14

OCTOBER TERM, A.D. 2016

February 9, 2017

JEREMIAH ETHAN SAMUEL SHULL,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-16-0046

Appeal from the District Court of Fremont County

The Honorable Norman E. Young, Judge 

Representing Appellant:

Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, Wyoming

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Christyne M. Martens, Senior Assistant Attorney General; 

Philip M. Donoho, Assistant Attorney General. Argument by Mr. Donoho.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

DAVIS, Justice.

[¶1] Appellant Jeremiah Shull used a knife to kill a man he found in bed with his wife, 

and a jury convicted him of first degree murder. We reverse and remand for a new trial 

due to instructional error. 

ISSUES

[¶2] Shull raises four issues, all of which relate to his position at trial that the killing 

was not premeditated murder, but rather the lesser included offense of voluntary 

manslaughter.1

 We rearrange and, for the sake of clarity, slightly reword those issues as 

follows:

I. Did the jury instructions create reversible error as to the lesser included offense of 

voluntary manslaughter because they instructed the jury that the State had to prove 

beyond a reasonable doubt that Shull acted in a sudden heat of passion, rather than that it 

had to prove that he did not act in a sudden heat of passion beyond a reasonable doubt? 

II. Did the prosecutor’s objection and the district court’s ruling on a portion of 

Shull’s closing argument, and the prosecutor’s subsequent rebuttal argument, improperly 

advise the jury that if it found Shull intended to kill, it could not find that he committed 

voluntary manslaughter?

III. Did an instruction defining the term “malice” for purposes of first-degree murder 

create reversible error by virtue of its failure to convey that a malicious act had to be one 

performed with “hatred, ill will, or hostility?”

IV. Did the district court err by allowing the introduction of a portion of a recorded 

telephone call to police in which the caller, Shull’s father, predicted Shull’s intentions 

based on a conversation the two had? 

FACTS

[¶3] This case presents facts from which both parties argued inferences as to whether 

Shull was guilty of first degree murder, second degree murder, or manslaughter. We will 

 1 Wyo. Stat. Ann. § 6-2-101(a) (LexisNexis 2015) provides in pertinent part that “[w]hoever purposely 

and with premeditated malice . . . kills any human being is guilty of murder in the first degree.” Wyo. 

Stat. Ann. § 6-2-104 (LexisNexis 2015) provides that “[e]xcept as provided in § 6-2-109 [dealing with 

homicide of a pregnant woman], whoever purposely and maliciously, but without premeditation, kills any 

human being is guilty of murder in the second degree . . . .” Wyo. Stat. Ann. § 6-2-105(a)(i)(LexisNexis 

2015) provides that a person is guilty of manslaughter if he “unlawfully kills any human being without 

malice, express or implied, . . . [v]oluntarily, upon a sudden heat of passion[.]”
2

therefore summarize the pertinent evidence to demonstrate the competing versions the 

jury had to sort out. 

[¶4] Shull and his wife, Julie Cordell-Shull (Cordell),

2 wed in February of 2014 after 

dating for approximately one month. They lived in Shull’s house in Riverton, Wyoming 

for about three tempestuous months, until he was arrested on a charge unrelated to their 

relationship. At that point, Cordell moved to Denver with an ex-boyfriend. In late July 

of 2014, she returned to Wyoming and began living with her friend Jennifer Gamble and 

Gamble’s children and boyfriend in a home located five to seven miles north of Riverton. 

[¶5] The two reunited when Shull attended a party at that home in early August and 

then moved in there with Cordell for a little more than two months, returning to his own 

house only to retrieve clothes and various other belongings. However, their relationship 

again became volatile and argumentative, and on October 15, 2014, Cordell and Gamble 

insisted that Shull move out of the home. Around this time, Cordell let Shull know that 

she was seeing another man. 

[¶6] Two days after Shull moved out, while Cordell was at Shull’s house to get 

cigarettes, she received a phone call or a text message from that other man, Jake 

Willenbrecht. Shull therefore took her cell phone and smashed it. They had another 

confrontation the next day, Saturday, October 18, at Gamble’s home. Cordell arrived 

with Willenbrecht in her vehicle shortly after Gamble took Shull to the house to pick up 

some belongings left behind when he moved.3

 Shull tried to make up with Cordell, but 

the couple soon began to argue loudly in the driveway. Cordell told Shull that she 

wanted a divorce and did not want to be with him.

[¶7] Finally, Gamble put an end to the altercation. But Shull wasn’t done, and he went 

to the vehicle where Willenbrecht was sitting and told him that he didn’t want to see him 

again. Shull also told Willenbrecht that the only reason he did not fight him on the spot 

was out of respect for their presence at the Gamble residence. Although all participants 

soon went their own ways, Shull was left visibly distraught almost to the point of 

physical illness by the encounter, according to Gamble. 

[¶8] Later that evening, Cordell and Willenbrecht went to a bar for a time, and then 

returned to Gamble’s house, stopping along the way at Shull’s home so she could take his 

iPad, without his permission, to serve as a substitute for her broken cell phone until she 

could replace it. The evidence indicated that Shull was quite attached to the iPad, and

used it to watch movies, etc. Cordell and Willenbrecht drank for a while longer after 

reaching Gamble’s place, and Willenbrecht, who was hesitant to drive home after 

 2 Cordell-Shull and the Appellant were still married at the time of trial, but she asked to be referred to as 

Cordell. We will honor that request. 

3 Shull’s vehicle, a Jeep, was inoperable at the time of the events described in this opinion. 
3

drinking, went to sleep in Cordell’s bed around midnight. She stayed up for another three 

hours and finally retired in the same bed between 3:30 and 4:00 a.m. on October 19, 

2014. 

[¶9] That same evening, Shull and Thomas Tynsky, an old friend who was living with 

Shull, planned to watch a movie at Shull’s house, but they eventually went drinking for 

several hours at another friend’s home instead. At one point, another friend overheard 

him talking with Tynsky about going on “his next mission,” and heard Tynsky try to 

discourage him from whatever he was suggesting. 

[¶10] After getting extremely drunk, Tynksky and Shull returned to Shull’s house to 

watch the movie, but decided to take a walk to take Shull’s mind off his earlier encounter 

with his wife and Willenbrecht. Tynsky lasted about a block and a half before he got 

cold and headed back to the house. Shull continued to walk north, toward the Gamble 

residence on State Highway 789 where Cordell was. There is no evidence that he knew 

Willenbrecht was with Cordell at the Gamble house, although he may have suspected as 

much. 

[¶11] As Shull4 later explained to DCI agent Brady Patrick:

Every step I took, I got a little bit more angry; angry at the 

fact my wife cheated on me, angry at the fact she lied to me, 

angry at the fact that she’d been treating me like absolute shit. 

And the only thing that I ever did was tell her, “Hey, you 

know what? I want to work on things because I love you to 

death.” And at there – out there, around 6:45, I walked the 

entire way out there, and it didn’t help my anger at all. 

[¶12] On the other hand, Shull also told law enforcement that he planned to crawl into 

bed with his wife without waking her. He said he intended to try to talk with her in the 

morning to try to work things out. 

[¶13] Shull’s use of alcohol violated a condition of probation on misdemeanor 

convictions,

5 and he claimed that he therefore hid when he saw headlights to avoid 

 4 Shull elected not to testify, and so what is known about his actions and state of mind on the night and 

morning in question comes in large part from an interview by Agent Patrick. 

5 Shull was originally placed on probation for misdemeanor possession of marijuana. While on probation 

for that, he was convicted of driving under the influence, so he was actually on probation in two different 

cases for which, combined, he could have served a little less than a year if his probation was revoked. His 

probation agent spotted him in a bar on October 17, and his presence there violated a condition of 

probation. The agent told him to leave the bar and to come to his office the following Monday to discuss 

a sanction. Shull had a petition for revocation of probation pending for other violations at that time as 

well. 
4

detection. Of course, this conduct could also suggest a stealthy approach to the Gamble 

home with the intent to do Cordell or someone else harm. 

[¶14] At approximately 3:16 a.m. Shull phoned his father, who was in Denver at the 

time. Because he initially missed the call, Shull’s father returned it a minute later. Shull 

said his father could have his house and Jeep because he was probably going to jail for 

the rest of his life. At 3:33 a.m. his father telephoned the Fremont County emergency 

dispatcher to convey that information and his fear that Shull was alluding to committing a 

serious crime. 

[¶15] Sometime between 4:30 and 5:00 a.m., Shull arrived at Gamble’s house and went 

to an exterior door that led directly into Cordell’s room. He discovered that she had 

uncharacteristically locked that door, and so he went to a kitchen window which he knew 

did not have a functioning lock. He climbed through the window and walked directly to 

his wife’s room. In doing so, he passed through the kitchen and past an assortment of 

kitchen knives without taking one, which is arguably somewhat supportive of his claim to 

have acted on a sudden heat of passion. He then entered Cordell’s room, shutting and 

locking the door behind him. He claimed that he first learned that Willenbrecht was in 

the house and in bed with Cordell only after entering the room and closing the door. He 

told investigators that he “lost it” at that point, and that he was “blinded by rage.” 

[¶16] Shull pulled out a folding, lock-back Gerber knife having approximately a threeinch blade and an overall length of seven and five-eighths inches, which he habitually 

carried. Shull grasped the open knife in his fist, with the blade pointed downward, and 

slipped his pinky finger into a ring built into the knife at the junction of the blade and 

handle to ensure a good, non-slip grip. It could be argued that this tended to show that he 

did not act on a sudden heat of passion, or on the other hand, that he simply had a 

habitual way of grasping a knife he used often. 

[¶17] Within two seconds of entering the dimly lit room, he began repeatedly stabbing 

the sleeping Willenbrecht. Cordell and Willenbrecht awoke and started struggling with 

him, and Cordell also received a significant stab wound. Finally, Shull slit 

Willenbrecht’s throat, killing him, choked Cordell into unconsciousness, and then 

escaped out the exterior door to the room while Gamble and her boyfriend frantically 

pounded on the locked interior door. Despite his efforts to avoid being seen as he fled 

back to Riverton, authorities located and arrested Shull around 8:00 that morning. He 

had the knife in his possession, and his clothing had blood on it that was later linked to 

Willenbrecht. 

[¶18] The State ultimately filed an amended information charging Shull with the first 

degree murder of Willenbrecht, aggravated assault and battery of Cordell, and 

strangulation of a household member (Cordell). The case proceeded to trial. 
5

[¶19] As will be discussed below, Shull admitted killing Willenbrecht intentionally and 

without a privilege to do so, such as self-defense. The key issue was whether he did so 

after premeditation and with malice (first degree murder), with malice but without 

premeditation (second degree murder), or in a sudden heat of passion (voluntary 

manslaughter). The decision had significant consequences. A conviction of first degree 

murder in a case in which the death penalty is not sought is punishable by imprisonment 

for life as a matter of law or life without the possibility of parole. Wyo. Stat. Ann. § 6-2-

101(b). A conviction of second degree murder carries a minimum penalty of twenty

years imprisonment and a maximum penalty of life imprisonment as a matter of law. 

Wyo. Stat. Ann. § 6-2-104. A conviction of voluntary manslaughter carries no minimum 

penalty and a maximum penalty of twenty years imprisonment. Wyo. Stat. Ann. § 6-2-

105(b). 

[¶20] The jury found Shull guilty of first degree murder, aggravated assault and battery, 

and strangulation of a household member. The district court sentenced him to life as a 

matter of law for the murder, eight to ten years for aggravated assault and battery, and 

four to five years for strangulation of a household member. He only appealed the first 

degree murder conviction.

DISCUSSION

1. Jury Instructions on Sudden Heat of Passion and Burden of Proof

a. Instructions Given 

[¶21] We will begin our consideration of this issue by examining the instructions given 

and the proceedings relating to them. In a motion in limine filed before trial, defense 

counsel6 argued that the term “malice” as it is used in Wyoming’s first and second degree 

murder7 statutes should include the following language because of the interplay between 

those offenses and voluntary manslaughter, which he intended to present as a lesser 

included offense:

The term “ malice” means that the act constituting

the offense was done recklessly under circumstances 

manifesting an extreme indifference to the value of human 

life, that the act was done without legal justification or 

 6 Shull is represented by a different attorney on appeal. 

7 The word “malice” does not actually appear in the second degree murder statute, Wyo. Stat. Ann. § 6-2-

104. The word “maliciously” is contained in the second degree murder statute. The district court defined 

both “malice” and “maliciously” in Instruction 19. Appellant points out that the definitions are somewhat 

contradictory. In light of the outcome of this appeal, we will not address this point, and will trust the 

district court to give it such consideration as it merits on retrial.
6

excuse, and that the act was not done upon a sudden heat of

passion. [Emphasis added.] 

[¶22] The emphasized language does not appear in Wyoming Criminal Pattern Jury 

Instruction 21.01D2, on which the rest of the instruction appears to have been based. The 

motion was heard immediately before trial began. The State objected to the instruction 

because it believed it to be improper to put the defendant’s theory of defense into a

substantive instruction. The prosecutor remarked that “I do not have to prove that he did 

not act in a heat of passion. I have to prove that he acted with malice.” The Court held 

that sudden heat of passion was an element of voluntary manslaughter, and that the 

proposed language was therefore improper. 

[¶23] The issue arose again at the formal instruction conference, and defense counsel 

objected to the State’s proposed Instruction 15, which defined premeditated malice for 

the first degree murder charge. He requested that the definition of malice reflect that a 

killing under a sudden heat of passion was not done with malice. The Court noted that 

the proposed malice instruction was the criminal pattern, and declined to add the 

language. 

[¶24] The State objected to instructing the jury on the lesser-included offense of 

voluntary manslaughter, but the Court did so over that objection. The instructions on 

voluntary manslaughter therefore read as follows:

Instruction No. 20

Pertinent portions of the Wyoming statutes provide as 

follows:

§ 6-2-105. Manslaughter;

(a) A person is guilty of manslaughter if he unlawfully kills 

any human being without malice, expressed or implied . . .

. . . Voluntarily, upon a sudden heat of passion.

Instruction No. 21

The elements of the lesser included offense of Voluntary 

Manslaughter in this case are:

1. On or about October 19, 2014,

2. in Fremont County, Wyoming, 
7

3. the Defendant, Jeremiah Ethan Samuel Shull (Y.O.B. 

1992), 

4. voluntarily, 

5. upon a sudden heat of passion, 

6. killed Jacob Nash Willenbrecht.

If you find from your consideration of all the evidence 

that each of these elements has been proved beyond a 

reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration 

of all the evidence that any of these elements has not been 

proved beyond a reasonable doubt, then you should find the 

defendant not guilty.

Instruction No. 22

As used in Instruction No. 21 “Voluntarily” means that 

the act which caused death was done intentionally. It does 

not require that the act was done with the intention of killing.

Instruction No. 23

As used in Instruction No. 21, “sudden heat of 

passion” means such passion as naturally would be aroused in 

the mind of an ordinarily reasonable person in the same or 

similar circumstances as those in question which would cause 

him to act rashly, without reflection or deliberation, and from 

passion rather than from judgment. The heat of passion must 

be aroused suddenly, and the act resulting in death must occur 

while the defendant was acting under the direct and 

immediate influence of such heat of passion, and before 

sufficient time has elapsed to permit the heat of passion to 

cool.

[¶25] All of the above instructions are Wyoming criminal patterns. The instructions 

then moved on to the offense of aggravated assault and battery, the lesser included 

offense of battery, and the charge of strangulation of a household member. Immediately 

before general instructions not specific to any charge, this instruction was given:

Instruction No. 35
8

The Defendant admits that he killed Jacob Nash 

Willenbrecht, but asserts that he is not guilty of First Degree 

Murder or Second Degree Murder, because the killing was 

done during a sudden heat of passion.

A finding of sudden heat of passion negates malice.

[¶26] The district court used a stepped verdict form which instructed the jury to consider 

the first degree murder charge first, and to decide if Shull was guilty or not guilty of that 

crime. If it answered that he was guilty, it was to skip questions relating to second degree 

murder and manslaughter and to consider the charges of aggravated assault and battery 

and strangulation of a household member. Because the jury found Shull guilty of first 

degree murder, it did not answer the questions concerning second degree murder or 

manslaughter. 

b. Propriety of the Instructions Regarding Allocation of Burden of Proof 

[¶27] Appellant raises two issues with regard to the instructions relating to voluntary 

manslaughter and the interplay of “malice” with “sudden heat of passion.” He contends 

that the instructions erroneously placed the burden of proving that he acted in a sudden 

heat of passion on the State when the State should have been required to prove beyond a 

reasonable doubt that he did not act in a sudden heat of passion. He also contends that 

the structure of the instructions and verdict form are such that the jury did not have to 

consider whether he acted in a sudden heat of passion, because the stepped verdict form 

and instructions relating to it directed the jury not to consider the offense of voluntary 

manslaughter if it convicted of first degree murder.

[¶28] We note at the outset that it is difficult to imagine a circumstance in which a 

prosecutor would charge voluntary manslaughter. That would involve proving something 

about the defendant’s state of mind that negated malice. A review of our cases 

addressing convictions of voluntary manslaughter reveals that virtually all involved 

conviction as a lesser included offense after being charged with murder, or a guilty plea 

to voluntary manslaughter after murder charges were filed.8 It is thus not at all surprising 

that the State charged only first degree murder and pointed out that its burden was to 

prove malice. 

 8 An interesting exception began in Lopez v. State, 2004 WY 28, 86 P.3d 851 (Wyo. 2004). In that case, 

we found the evidence on which Lopez’s conviction of second degree murder was based to be 

insufficient, and remanded for trial on the lesser included offense of voluntary manslaughter. Id. ¶ 42, 86 

P.3d at 862-63. The State retried Lopez for voluntary manslaughter and obtained a conviction. Lopez v. 

State, 2006 WY 97, 139 P.3d 445 (Wyo. 2006). Lopez unsuccessfully claimed on appeal that he should 

have been convicted of criminally negligent homicide under Wyo. Stat. Ann. § 6-2-107. This may be an 

example of when sudden heat of passion is an element rather than a mitigating factor. See below.
9

[¶29] The role of sudden heat of passion as a mitigating factor is explained in wellrespected general authorities:

The usual view of voluntary manslaughter thus presupposes

an intent to kill . . . , holding that in spite of the existence

of this bad intent the circumstances may reduce the 

homicide to manslaughter. . . .

The usual type of voluntary manslaughter involves the 

intentional killing of another while under the influence of a

reasonably-induced emotional disturbance (. . . “heat of 

passion”) causing a temporary loss of normal self-control. 

Except for this reasonable emotional condition, the 

intentional killing would be murder.

2 Wayne R. LaFave, Substantive Criminal Law § 15.2(a) (2d ed., Oct. 2016 update).

Voluntary manslaughter is an intentional killing in the heat

of passion as a result of severe provocation. As a

concession to human frailty, a killing, which would 

otherwise constitute murder, is mitigated to voluntary

manslaughter.

* * *

[A]t common law and by statute in most states, since the 

homicide must be committed under circumstances which 

would otherwise be murder, defendant may act with the

intent to kill or with any mental state which amounts to

“malice”; the malice is negated by the provocation and the

offense is mitigated from murder to voluntary manslaughter.

2 Charles E. Torcia, Wharton’s Criminal Law § 155 (15th ed., Sept. 2016 update).

[¶30] This Court has said much the same thing:

Our laws recognize an intermediate crime lying 

someplace between the excusable, justifiable or privileged

killing of a human being, and the unlawful taking of a life 

with malice. This is an unlawful type of voluntary homicide

which is not legally excused, privileged or justified, but

wherein there is an absence of express legal, implied or 
10

constructive malice. So we find in our law, that the

intentional (i.e. voluntary) doing of the wrongful act [i.e., 

killing], “upon a sudden heat of passion,” although 

completely free of express, implied, constructive or legal

malice, but committed without legal excuse, privilege or 

justification, is a punishable crime which we call voluntary 

manslaughter. This simply recognizes that there may be

circumstances surrounding a killing which cannot be

justified under the law of self-defense, and while not 

producing that degree of mental disturbance or aberration of

the mind which is necessary in law to excuse the

homicide, still leaves the mind devoid of that wicked, evil and 

unlawful purpose, or of that wilful disregard of the rights of 

others which is implied in the term “malice.” Such 

circumstances mitigate or extenuate the act and make the

homicide a crime of lesser degree. The “sudden heat of 

passion” contemplated by our voluntary manslaughter statute

is descriptive of just such a state of mind, and it may 

occur from any emotional excitement of such intensity that it

temporarily obscures reason, or leaves the mind bereft of

reason.

State v. Keffer, 860 P.2d 1118, 1138-39 (Wyo. 1993) (quoting State v. Helton, 73 Wyo. 

92, 115, 276 P.2d 434, 442 (1954)).

[¶31] These authorities make it clear that sudden heat of passion is a mitigator and not 

an element when a defendant is charged with murder. The question then arises as to 

which party should have the burden of proving or disproving this factor. The district 

court referred to sudden heat of passion as an element, based on our case law. However, 

although we have said otherwise at times, the question has been settled for many years as

a matter of due process. 2 LaFave, supra, § 1.8(b) (question of whether State bears the 

burden of disproving a mitigator “was settled by Mullaney v. Wilbur”). 

[¶32] In Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct 1881, 44 L.Ed.2d 508 (1975), 

Mullaney killed a man who made a homosexual advance to him. Id. at 685, 95 S.Ct. at

1883. Maine law at the time required him to prove that he acted in the heat of passion on 

sudden provocation by a preponderance of the evidence. Id. The United States Supreme 

Court reversed, holding as follows:

Maine law requires a defendant to establish by a 

preponderance of the evidence that he acted in the heat of 

passion on sudden provocation in order to reduce murder to

manslaughter. Under this burden of proof a defendant can 
11

be given a life sentence when the evidence indicates that it is 

as likely as not that he deserves a significantly lesser

sentence. This is an intolerable result in a society where, to 

paraphrase Mr. Justice Harlan, it is far worse to sentence one

guilty only of manslaughter as a murderer than to sentence

a murderer for the lesser crime of manslaughter. In re

Winship, 397 U.S. [358], 372[, 92 S.Ct. 1068, 1076, 25 

L.Ed.2d (concurring opinion). We therefore hold that the 

Due Process Clause requires the prosecution to prove 

beyond a reasonable doubt the absence of the heat of 

passion on sudden provocation when the issue is properly

presented in a homicide case.

Mullaney, 421 U.S. at 703-04, 95 S.Ct. at 1892 (emphasis added). 

[¶33] The effect of the pattern instruction given here is perhaps more pernicious than 

that in Mullaney. The jury was told that the State had to prove sudden heat of passion. 

The State, quite understandably, argued that the killing was with malice. The effect of 

this instruction was to tell the jury that the party with the burden of proof could “opt out” 

of consideration of sudden heat of passion, thereby depriving Shull of a potential 

mitigator. 

[¶34] If Shull presented some evidence that he acted in a sudden heat of passion, as the 

district court must have found he did, the jury should have been told that the State had the 

burden of proving the absence of a sudden heat of passion, much as it would have been if 

there had been a complete defense of self-defense. Drennen v. State, 2013 WY 118, ¶ 22, 

311 P.3d 116, 124 (Wyo. 2013) 

[¶35] The State points out that this Court has held just the opposite in the past – we have 

held that sudden heat of passion is an element the State must prove. We have also held 

that the State did not have to prove the absence of sudden heat of passion, in part because 

proof of malice necessarily rules out sudden heat of passion. See, e.g., Yung v. State, 906 

P.2d 1028, 1035-36 (Wyo. 1995); Janpol v. State, 2008 WY 21, ¶¶ 9, 10, 178 P.3d 396, 

400 (Wyo. 2008). But cf. Lane v. State, 12 P.3d 1057, 1062 (Wyo. 2000) (Court 

suggested it had gone too far in describing sudden heat of passion as an element after the 

district court failed to define the term).

[¶36] These holdings are untenable in light of Mullaney. Mullaney did not equivocate. 

The district court decided that the jury should be allowed to consider the mitigator of 

sudden heat of passion, and the jury should have been entitled to a correct set of 

instructions regarding it. Other authorities take Mullaney at face value, including the 

authors of a leading compilation of federal jury instructions:
12

The Supreme Court held that in order to obtain a murder 

conviction, the prosecution must “prove beyond a reasonable 

doubt the absence of the heat of passion on sudden 

provocation when the issue is properly presented in a 

homicide case.” Mullaney v. Wilbur, 421 U.S. 684, 697-98, 

704, 95 S.Ct. 1881, 1888-89, 1892, 44 L.Ed.2d 508 (1975). 

Failure to impose this requirement exempts the government 

from its obligation to prove the defendant guilty of murder 

beyond a reasonable doubt. See Mullaney, 421 U.S. at 697-

98, 95 S.Ct. at 1888-89, 1892.

2A Kevin F. O’Malley et al., Federal Jury Practice and Instructions, note to § 45.09 (6th

ed., Aug. 2015 update).

 

[¶37] The voluntary manslaughter statute does not tell us whether sudden heat of passion

is an element or a mitigator, and, as we have already said, it is nearly impossible to 

imagine a case in which a prosecutor would charge voluntary manslaughter and assume 

the burden of proving sudden heat of passion.

9

 The statutory scheme creates a situation 

in which an absence of premeditation reduces an offense to second degree murder if there 

is malice, and to voluntary manslaughter if the State cannot disprove sudden heat of 

passion if there is some evidence to support the mitigator.

[¶38] As Mullaney observed while discussing an argument that proving the absence of

sudden heat of passion could be difficult:

Indeed, the Maine Supreme Judicial Court itself 

acknowledged that most States require the prosecution to 

prove the absence of passion beyond a reasonable doubt. 

Moreover, the difficulty of meeting such an exacting burden 

is mitigated in Maine where the fact at issue is largely an 

“objective, rather than a subjective, behavioral criterion.”

State v. Rollins, 295 A.2d [914], at 920 [(Me 1972)]. In this 

respect, proving that the defendant did not act in the heat of 

passion on sudden provocation is similar to proving any other 

element of intent; it may be established by adducing evidence 

of the factual circumstances surrounding the commission of 

the homicide. And although intent is typically considered a 

fact peculiarly within the knowledge of the defendant, this 

does not, as the Court has long recognized, justify shifting the 

burden to him. See Tot v. United States, 319 U.S. 463, 469, 

63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943); Leary v. United 

 9 See the discussion of Lopez v. State, supra, note 8. 
13

States, 395 U.S. 6, 45, 89 S.Ct. 1532, 1552, 23 L.Ed.2d 57 

(1969).

Nor is the requirement of proving a negative unique in 

our system of criminal jurisprudence. Maine itself requires 

the prosecution to prove the absence of self-defense beyond a 

reasonable doubt. See State v. Millett, 273 A.2d 504 (1971).30

Satisfying this burden imposes an obligation that, in all 

practical effect, is identical to the burden involved in negating 

the heat of passion on sudden provocation. Thus, we discern 

no unique hardship on the prosecution that would justify 

requiring the defendant to carry the burden of proving a fact 

so critical to criminal culpability.

Mullaney, 421 U.S. at 701-02, 95 S.Ct. at 1891 (footnotes and some citations omitted).

[¶39] The jury should have been given instructions which properly allocated the burden 

to disprove sudden heat of passion. (See discussion of Wilkerson v. State below). 

O’Malley suggests the following means of allocating the burden of proof in an instruction 

for second degree murder in a note to their pattern instruction:

If there is evidence that the defendant acted upon a sudden 

quarrel or heat of passion, a fourth element, as well as some 

additional defining language, should be added. For example,

“Four: The defendant did not act upon a sudden quarrel or in 

the heat of passion caused by adequate provocation.”

2A O’Malley, supra, note to § 45.04. Colorado similarly suggests an instruction that 

directs the jury to consider heat of passion if it finds guilt of second degree murder and to 

answer a special interrogatory on this issue. Colorado Criminal Pattern Jury Instruction 

3-1:08 (2015). 

[¶40] Shull also contends that the stepped nature of the verdict form and the instructions 

concerning its completion and the placement of Instruction 35 effectively divorced the 

question of sudden heat of passion from the question of malice, while the two are 

intertwined. The State contends that Instruction 35 effectively cures that particular 

problem. We will address this in connection with our inquiry as to whether there is error 

requiring reversal. 

c. Standard of Review and Significance of Errors 

[¶41] We have said the following concerning jury instructions:
14

As we have previously noted, the United States 

Supreme Court has said that a penal statute must “define the 

criminal offense with sufficient definiteness that ordinary 

people can understand what conduct is prohibited and in a 

manner that does not encourage arbitrary and discriminatory 

enforcement.” Griego v. State, 761 P.2d 973, 975 (Wyo.

1988) (quoting Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 

1855, 1858, 75 L.Ed.2d 903 (1983)). The same principle 

applies to jury instructions. The purpose of jury instructions 

is to “provide the jury with a foundational legal understanding 

to enable a reasoned application of the facts to the law.” 

Walker v. State, 2013 WY 58, ¶ 31, 302 P.3d 182, 191 (Wyo.

2013). In order to support a reliable verdict, it is crucial that 

the trial court correctly state the law and adequately cover the 

relevant issues. Id. Ultimately, the test of adequate jury 

instructions is “whether the instructions leave no doubt as to 

the circumstances under which the crime can be found to 

have been committed.” Id. (quoting Burnett v. State, 2011 

WY 169, ¶ 14, 267 P.3d 1083, 1087 (Wyo. 2011)).

Wilkerson v. State, 2014 WY 136, ¶ 25, 336 P.3d 1188, 1199 (Wyo. 2014). On the other 

hand, we have also recognized that as long as jury instructions correctly state the law and 

leave no doubt as to the circumstances in which a crime can be found to have been 

committed, the trial court has considerable discretion in the assembly of instructions it 

gives and in the wording used. 

A trial court does not abuse its discretion by referring the jury 

to instructions that, when viewed as a whole and in the 

context of the entire trial, fairly and adequately cover the 

issues. Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 

577 (Wyo. 2010). 

Cecil v. State, 2015 WY 158, ¶ 14, 364 P.3d 1086, 1090 (Wyo. 2015). 

[¶42] With regard to the allocation of the burden of proving the absence of sudden heat 

of passion, trial defense counsel did not object to Instruction 21, which allocated the 

burden of proving what we have found to be a mitigator to the State. The State contends 

that we should review for plain error. Plain error exists when: (1) the alleged error is of 

record; (2) the error violates a clear and unequivocal rule of law in a clear and obvious,

not merely arguable, way, and; (3) the error adversely affected a substantial right to the

appellant’s material prejudice. Jealous v. State, 2011 WY 171, ¶ 11, 267 P.3d 1101, 

1104 (Wyo. 2011). 
15

[¶43] Shull contends, on the other hand, that the error was structural, and that reversal is 

required. A structural error, as distinguished from a trial error, is a defect affecting the

framework within which the trial proceeds, rather than simply an error in the trial

process itself. See Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 1833-34, 

144 L.Ed.2d 35 (1999). In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 

L.Ed.2d 182 (1993), the United States Supreme Court ruled that the failure to properly 

allocate the burden of proof is a structural error:

[T]he essential connection to a “beyond a reasonable

doubt” factual finding cannot be made where the

instructional error consists of a misdescription of the

burden of proof, which vitiates all the jury’s findings. A

reviewing court can only engage in pure speculation—its

view of what a reasonable jury would have done. And when 

it does that, “the wrong entity judge[s] the defendant guilty.”

Id. at 281, 113 S.Ct. at 2082. See also Granzer v. State, 2008 WY 118, ¶ 16, 193 P.3d 

266, 271 (Wyo. 2008) (acknowledging the rule generally). The distinction between 

structural error and harmless (or plain) error is critical – if an error is structural, the 

conviction must be reversed. 7 LaFave, Criminal Procedure § 27.6(d) (4th ed., Dec. 2016 

update).

[¶44] The State correctly points out that after Sullivan, the United States Supreme Court 

has held that various instructional errors, including failure to instruct on an element, are 

subject to harmless error analysis if there has been an objection, rather than treatment as 

structural error. See, e.g., Hedgpeth v. Pulido, 555 U.S. 57, 61, 129 S.Ct. 530, 532, 172 

L.Ed.2d 388 (2008) (per curiam); Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 

L.Ed.2d 35 (1999) (omission of an element of an offense); California v. Roy, 519 U.S. 2, 

117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (erroneous aider and abettor 

instruction); Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)

(misstatement of an element of an offense); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 

92 L.Ed.2d 460 (1986) (instruction that malice was presumed analyzed under a harmless 

error standard). 

[¶45] We have applied this principle in the past, see Granzer, ¶ 18, 193 P.3d at 271-72

(failure to instruct on an element of a crime), and we generally have no quarrel with it 

now. It would require plain error analysis in the absence of an objection to the 

instruction placing the burden of proving sudden heat of passion on the State. However, 

the instruction in this case goes farther. As we have already noted, it allocates the burden 

of proving a sudden heat of passion to the State, which understandably had no inclination 

or motivation to prove it, and every reason to disprove it. This effectively allowed the 

State to control the jury’s consideration of the mitigator that Shull relied upon. This was 
16

more than a simple instructional error – it created one of those rare cases in which an 

instructional error is structural. It is closer to the error found to be structural in Sullivan

than errors held not to be. 7 LaFave, supra, § 27.6(d) (listing cases in which errors were 

held structural and those subject to harmless error review). It requires reversal. This 

error was compounded by the manner in which the jury was instructed to consider sudden 

heat of passion.

[¶46] Trial defense counsel did preserve the claim that the element of sudden heat of 

passion should be tied to the definition of malice early in the instructions by objecting to 

the definition of malice and suggesting language which would have connected the 

definition of malice to a sudden heat of passion. He also asked that the verdict form 

contain a special interrogatory as to whether the jury found a sudden heat of passion or 

not. The trial judge declined to submit that question. This record would require us to 

determine whether this was in fact error, and if so, whether it was harmless. Morris v. 

State, 2009 WY 88, ¶ 15, 210 P.3d 1101, 1105 (Wyo. 2009). The State argues this point 

is adequately covered in Instruction 35, which is quoted above. That instruction does say 

that “[a] finding of sudden heat of passion negates malice.” 

[¶47] However, because it comes so late in the instructions, Shull contends that the jury 

would not have had occasion to consider it in connection with the stepped verdict form 

which required the jury to consider first degree murder under a definition of malice 

unconnected to the mitigator of sudden heat of passion. After that, it was directed to skip 

the questions which might have directed it back to the question of sudden heat of passion. 

[¶48] We noted above that the federal pattern instructions and the Colorado patterns are 

structured so as to direct the jury to the issue of whether a killing was done under a 

sudden heat of passion while it is considering murder charges. To do so is therefore 

hardly unprecedented. 

[¶49] In State v. Hinrichsen, 877 N.W.2d 211 (Neb. 2016), the Nebraska Supreme Court 

upheld a conviction for first degree murder despite a contention that the stepped 

instructions used prevented the jury from considering a “sudden quarrel” theory10 until it 

had found the defendant guilty of first degree murder, thereby shifting the burden of 

proof from the state to the defendant. Id. at 226-27. In a special concurrence, Justice 

Wright pointed out the problem with the stepped verdict form in a case involving these 

kinds of issues, as had a dissenting justice:

Premeditation or provocation are fact issues that 

should be considered simultaneously when there is proper

evidence of a provocation. The logic of this rule is that 

since provocation negates premeditation and premeditation

 10 “Sudden quarrel” is similar to Wyoming’s “sudden heat of passion.” 
17

negates provocation, the jury should consider and decide

this question at the same time. When the defendant has

presented proper evidence that the defendant was acting

under a provocation, that issue should be addressed at the

same time that the jury considers whether the act causing the 

death was premeditated.

In a first degree murder case, the State presents its 

evidence that the murder was premeditated. If the defendant 

offers evidence that the killing was the result of provocation, 

the State’s evidence must establish beyond a reasonable doubt 

that the murder was not the result of a provocation. In that

manner, the burden remains upon the State to prove the

elements of the crime and thus, the burden of proof never 

shifts to the defendant. The State disproves the defense of 

provocation by its evidence of premeditation. The question

is whether the State’s evidence negates beyond a reasonable 

doubt the claim of provocation. The State negates the

defendant’s claim of provocation by presenting evidence that 

proves beyond a reasonable doubt that the defendant killed 

the victim with premeditation and malice aforethought.

An acquittal first step instruction precludes the jury 

from effectively considering the factual issue of

provocation in its determination of a defendant’s guilt. . . .

And under a step instruction on the three degrees of

homicide, the jury must acquit the defendant of first and 

second degree murder before it considers the issue of

provocation. This has the effect of prioritizing the evidence

by requiring the jury to consider first and second degree

murder before it can consider the evidence of provocation. 

I agree with the dissent’s position that the court is required to

instruct the jury in a manner that explains the jury’s options

. . . of whether to convict the defendant of first degree 

murder, second degree murder, or manslaughter.

Id. at 230-31 (Wright, J., concurring in the result).11

[¶50] We have in the past generally approved of stepped verdict forms, and we continue 

to do so. Evanson v. State, 546 P.2d 412, 415 (Wyo. 1976).

12 It is normally entirely 

 11 Justice Wright concurred despite the quoted reservations because he did not believe the evidence 

justified giving an instruction on sudden quarrel. 
18

reasonable to proceed from the most serious offense to lesser included offenses. 

However, those justices disagreeing with the majority’s decision in Hinrichsen make a 

valid point – the stepped form used in this case does not work well in murder cases in 

which the mitigating factor of sudden heat of passion is properly raised. It would 

certainly be appropriate to use the stepped form on retrial, and it could easily be modified

to assure that the mitigating factor is considered. We will leave it to the trial judge to 

find the best means of assuring that the jury considers the sudden heat of passion 

mitigator in connection with the definition of malice, but in our view that would not be 

the manner in which the instructions given in this case were structured. 

[¶51] Shull’s first degree murder conviction must be reversed due to structural error, and 

the case must be remanded for a new trial.

2. Intentional Killing and Voluntary Manslaughter 

[¶52] Because we reverse and remand this case for a new trial, it is not strictly necessary 

for us to address this issue. However, we do so in the interest of judicial economy, and to 

offer guidance for the new trial. See, e.g., Phillips v. State, 597 P.2d 456, 463 (Wyo. 

1979). 

[¶53] The record reflects confusion as to whether voluntary manslaughter includes a 

killing in which the defendant has the subjective intent to kill. This was a critical issue, 

as Shull did not deny killing Willenbrecht intentionally, and the evidence of multiple 

stabbings and slashing his throat certainly support a conclusion that he did so. As noted 

above, trial defense counsel filed a motion in limine seeking to link the mitigator of 

sudden heat of passion to the definition of malice, which we have already discussed. In a 

hearing immediately before trial began, defense counsel made this comment:

[The State] want[s] to say that all you need . . . for malice is 

to consciously decide to kill and to kill. People under

sudden heat of passion are consciously deciding to kill, but 

they are under a sudden heat of passion which removes their

mind from reason without the sufficient cool-off time. 

In response, the prosecutorstated:

I have never read a case that says that a person who kills 

under heat of passion has consciously decided to kill. If I see

that case, I’ll eat my shoe.[13] But I have never seen it, and I 

have read a lot of cases in my day.

 12 We recognize that Janpol, supra, dealt with issues similar to this case and reached a different result. 

13 As the following discussion indicates, the day has come to make good on that promise. 
19

[¶54] No ruling was required on this precise issue at that point, and the trial proceeded 

with defense counsel acknowledging that Shull killed Willenbrecht intentionally but 

arguing that he did so under a sudden heat of passion. This then occurred in closing 

argument:

[Defense Counsel]: The heat of passion must be aroused

suddenly. You know, we’ve got him turning around, seeing 

him in bed, and he pulls out his knife, and he attacks him. 

And the act resulting in death. So you know, the act 

resulting in death is these nine stab wounds and seven

cutting wounds. You know, the act resulting in death, I

mean, these are acts of a -- of a person who is under a

sudden heat of passion, who has just lost it. 

And does he intend to kill? Yes, obviously, the people

who kill somebody under sudden heat of passion, that’s

what they mean to do. 

[Prosecutor]: Objection, Your Honor. That, I believe, is a 

misstatement of the law.

THE COURT: Sustained.

[¶55] The prosecutor then made these statements in rebuttal closing argument:

Certainly, the defendant has an explanation of his own for

all the precursor activities that we talked about before the 

killing in this case. But except for the -- in the end, he stabbed 

a guy 17 times. So if we -- or 16 times. So if we take a look

at the facts, it all adds up to murder.

* * *

The defendant coins this as just losing it. And I

believe [defense counsel] said, “And he started stabbing and 

slashing.” You don’t have to take that explanation. Sixteen

wounds can be taken by you as evidence of intent and 

continued intent.

* * *
20

Nowhere in your instructions will you see any 

requirement that there be any planning at all. All you have to 

do is make a conscious decision to kill and then kill.

[¶56] After the jury rendered its verdict, defense counsel filed a motion for a new trial 

under Wyoming Rule of Criminal Procedure 33, in which he argued that the ruling and 

argument told the jury that an intentional killing cannot be manslaughter. The motion 

was denied. 

[¶57] Shull argues that this ruling effectively told the jury that he could not avail himself 

of the lesser included offense of voluntary manslaughter if he killed Willenbrecht on 

purpose. The State contends that the ruling and ensuing argument did not amount to an 

instruction.14 It also contends that the argument was an overly broad generalization, 

which led to the objection being sustained, and that the prosecutor did not actually say 

that killing in the heat of passion could not be intentional.15

[¶58] It is unnecessary to address the standard of review since this case will be 

remanded for a new trial. Suffice it to say that there is ample authority that a sudden heat 

of passion killing not only can be, but often is, intentional. 

[¶59] As already noted, Wyo. Stat. Ann. § 6-2-105 provides as follows:

(a) A person is guilty of manslaughter if he unlawfully kills 

any human being without malice, expressed or implied . . . .

(i) Voluntarily, upon a sudden heat of passion[.]

[¶60] This statute “adopted the common law definition of the crime of voluntary

manslaughter.” Jahnke v. State, 692 P.2d 911, 919 (Wyo. 1984), overruled on other

grounds by Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). Accordingly, where

the defense to murder is voluntary manslaughter, the killing is voluntarily committed, 

i.e., the killing is intentionally done.

 14 It also claims that Shull’s counsel did not preserve the claimed error. We disagree. Defense counsel’s 

statement, the objection, and the ruling are in the record. Wyoming Rule of Criminal Procedure 51 and 

Rule of Civil Procedure 46 both provide that exceptions to rulings are unnecessary to obtain review. 

These provisions save trial judges considerable annoyance at having counsel revisit issues on which they 

have ruled, if they accomplish nothing else. We consider the claimed error to have been preserved for 

appellate review. 15 We have difficulty believing that the State or the trial judge was concerned about correcting a 

generalization which might be overly broad. This jury was tasked with deciding Shull’s degree of guilt, 

not analyzing the veracity of a syllogism. 
21

“Voluntarily” does mean intentionally. State v. Helton, 73

Wyo. 92, 276 P.2d 434 (1954). It denotes the condition of

the mind at the time of the homicide and distinguishes a 

“voluntary” act from one which occurs by accident. Ivey v.

State, 24 Wyo. 1, 154 P. 589 (1916). In this respect, the

function of the phrase is similar to “purposely” in the second 

degree murder statute. . . . “Voluntarily, upon a sudden heat 

of passion” then sets forth the extenuating circumstance that

mitigates an offense, which would otherwise be second 

degree murder, to manslaughter.

Keffer, 860 P.2d at 1138.

Voluntary manslaughter in most jurisdictions consists of an

intentional homicide committed under extenuating 

circumstances which mitigate, though they do not justify or 

excuse, the killing. The principal extenuating circumstance is

the fact that the defendant, when he killed the victim, was in a 

state of passion engendered in him by an adequate

provocation (i.e., a provocation which would cause a 

reasonable man to lose his normal self-control).

2 LaFave, supra, § 15.2. “Most killings which constitute voluntary manslaughter are of 

the intent-to-kill sort—so much so that voluntary manslaughter is often defined in the 

cases (and sometimes, by statute) as if intent to kill were a required ingredient.” Id. § 

15.2(a). See also 2 Wharton’s Criminal Law, supra, § 155. 

[¶61] As noted above, the pattern instruction the district court gave provides that 

“voluntarily” means that the act causing death must be intentional, although the actor 

may not have intended to kill the victim. See Instruction 22, drawn directly from 

Wyoming Criminal Pattern Jury Instruction 21.05B. This is a true statement, but it does 

not mean, as the above authorities indicate, that a voluntary killing cannot occur with the 

intent to kill. In other words, a killing with intent to kill is voluntary, although a 

subjective intent to kill is not required. On retrial, it would be improper to instruct or 

suggest that a killing under a sudden heat of passion cannot include a case in which the 

defendant has the subjective intent to kill.

3. Definition of Malice for First Degree Murder

[¶62] The definition of premeditated malice in Instruction 15 was as follows:

“Premeditated malice” means that the Defendant thought 

about and considered the idea of killing before the act which 
22

caused the death was committed, and that the act which 

caused death was done with intent to kill and without legal 

justification and excuse. 

[¶63] Shull argues that this instruction is incorrect and prejudicial because this Court has 

held as follows:

In the context of first degree murder, this Court 

recently approved a jury instruction defining “malice” to 

mean “that the act(s) constituting the offense charged

was/were done intentionally, without legal justification or

excuse or that the act(s) was/were done in such a manner as 

to indicate hatred, ill-will, or hostility towards another.”

Rolle v. State, 2010 WY 100, ¶ 32, 236 P.3d 259, 273

(Wyo. 2010). Earlier, however, in Keats v. State, 2003

WY 19, ¶ 16, 64 P.3d 104, 106 (Wyo. 2003), the Court

made it clear that . . . malice requires proof of an intentional

act done without legal justification or excuse and hatred, ill 

will or hostility. We think the latter approach finds better

support in the law in the context of first degree murder. . 

. . We hold that juries must be instructed in first degree 

murder cases that “malice” means the defendant acted

intentionally without legal justification or excuse and with 

hatred, ill will or hostility. Because the jury instruction in

Mr. Johnson’s case stated that malice means the acts

constituting the offense charged were done intentionally,

without legal justification or excuse or were done in a

manner indicating hatred, ill will, or hostility towards another, 

it was not a correct statement of the law.

Johnson v. State, 2015 WY 118, ¶ 19, 356 P.3d 767, 772-73 (Wyo. 2015) (most 

emphasis added).

[¶64] The premeditated malice instruction given does not, of course, contain the 

language Johnson requires. The jury in this case was instructed on July 20, 2015, and 

Johnson was not decided until September 3, 2015, and so the trial judge could not have 

known of its holding. We are confident the district court will apply Johnson when the 

case is retried.

4. The Dispatcher’s Recording

[¶65] We address this issue for the same reasons we addressed the last two questions 

raised by this appeal – to promote judicial economy and to provide guidance for a retrial. 
23

As noted above, Shull’s father contacted the Fremont County emergency dispatcher in an 

attempt to get law enforcement to intervene with his son because he was in Denver and 

could not do so. The recording of that phone call conveyed his identification of Shull and 

the following comments:

Well, unfortunately, he’s my son. He is dumber than a rock. 

And he’s, uh, right now it sounds like he’s drunk. He calls 

me up and says that I can have his house and his jeep and he’s 

probably going to jail for the rest of his life. So I’m 

assuming that he’s alluding to committing a crime that is 

fairly serious.

* * *

It sounded like he’s headed over there to do absolutely no 

good. Him and his wife have been fighting it looks like 

they may be divorcing. It just sounds like a bad place . . . 

right now if you could get an officer out there as fast as 

possible and pick him up for public intoxication then we 

might avoid something considerably more serious.

[¶66] The recording was played for the jury over Shull’s objection to the bolded portion. 

He now claims, as he did at trial, that this part of the statement was an improper lay 

witness opinion, and that its admission constitutes reversible error.16 

[¶67] This Court reviews the admission of evidence under the deferential abuse of 

discretion standard, and it will not disturb a district court’s decision in that regard unless 

an appellant carries the burden of showing that there was no legitimate basis for that 

decision. Even if the district court erred, we will not reverse if the error was harmless. 

Toth v. State, 2015 WY 86A, ¶ 35, 353 P.3d 696, 707 (Wyo. 2015).

[¶68] Opinions or inferences voiced by a lay person are admissible only if they “are (a) 

rationally based on the perception of the witness and (b) helpful to a clear understanding 

of his testimony or the determination of a fact in issue.” W.R.E. 701. We have held that 

the first of those requirements incorporates the “personal knowledge” mandate of W.R.E. 

602, which states in pertinent part: “A witness may not testify to a matter unless 

evidence is introduced sufficient to support a finding that he has personal knowledge of 

the matter. Evidence to prove personal knowledge may, but need not, consist of the 

testimony of the witness himself.”

 16 Shull does not contest the admission of that portion of the recording which contains his father’s report 

of statements made by Shull during their earlier phone conversation, which is the unbolded part of the 

quote above.
24

[¶69] Thus, both rules bar the admission of evidence of a person’s opinions, suspicions, 

or beliefs regarding a particular matter unless they are rationally grounded in his personal 

perception of that matter through his own senses. They may not be grounded in pure 

speculation or in knowledge obtained only from the descriptions of others. Schmunk v. 

State, 714 P.2d 724, 733-35 (Wyo. 1986). As a leading commentator explains:

Mental state of another. It is very hard to say how far a lay 

witness should be allowed to go in interpreting the mental 

state of another—her knowledge, intent, understanding, or 

feelings, or what she meant by what she said. On the one 

hand, such testimony is necessarily highly interpretive, often 

subjective and very much affected by extraneous relational 

factors, and in common experience people are often seriously 

mistaken on such points. It is easy to get too much 

interpretive gloss and not enough specific underpinning, and 

to wind up with speculation and guesswork. Here obviously 

the testimony is not helpful and not rationally based either, 

and it should be excluded.

3 Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 7:5 (4th ed., May 

2016 update).

[¶70] The contested portion of the recorded phone call to the dispatcher is speculation. 

It goes beyond predicting Shull’s state of mind – it is a prediction of what Shull will do in 

the future extrapolated from statements he made. Based on his perception that Shull 

sounded drunk when he offered up his home and his Jeep, and on Shull’s statement about 

going to jail for the rest of his life, his father “assumed” Shull was “alluding” to 

committing a fairly serious crime against his wife. 

[¶71] Shull’s father would have to have been clairvoyant to know what Shull was 

planning unless Shull told him or engaged in behavior that evidenced the intent. The fact 

that this speculation ultimately turned out to be accurate does not make it admissible. It 

violated Rules 602 and 701. The portion of the statements that Shull actually made to his 

father are admissible and of course very damaging to his sudden heat of passion theory. 

We do not need to analyze whether the improper portion of the statement was sufficiently 

prejudicial to require retrial in light of the damning nature of the admissible portions 

because the case will be retried. 

CONCLUSION

[¶72] The instruction allocating the burden of proving the mitigating factor of sudden 

heat of passion to the State, when the burden should have been to disprove that factor, 
25

was a structural error requiring reversal. We reverse and remand for a new trial of the 

first degree murder charge. The convictions for aggravated assault and battery and 

strangulation of a household member were not challenged on appeal, and they are not 

affected by this decision.