Jahnke v. State

682 P.2d 991, 1984 Wyo. LEXIS 292

• Court: Wyoming Supreme Court
• Decided: June 6, 1984
• Docket: 83-70
• Status: Published

Opinions

THOMAS, Justice.

The essential questions presented in this case arise out of a notion that a victim of abuse has some special justification for patricide. The specific questions posed relate to limitations imposed by the trial judge upon voir dire examination of members of the selected panel of jurors and the admissibility of testimony from a forensic psychiatrist intended to support the theory of self-defense espoused by the appellant, Richard John Jahnke. In addition there is a claim that the district judge abused his discretion in imposing sentence upon a conviction of voluntary manslaughter which was the result of the jury’s deliberations. The district judge refused to permit counsel for the defendant to inquire of members of the panel of jurors about their attitudes with respect to specific conduct of the deceased father in disciplining his children both physically and psychologically or to inquire whether any member of the jury panel felt that there was no justification ever for the taking of a human life. The district court also ruled that the forensic psychiatrist could not testify about statements made to him by the appellant. After the jury’s verdict was returned, and an appropriate presentence investigation was completed and reviewed the district judge sentenced the appellant to a term of not less than five years nor more than fifteen years in the Wyoming State Penitentiary. This sentence was imposed even though the appellant was sixteen years of age at the time the offense was committed. We have concluded that there was no error with respect to the respective rulings made by the district court in connection with this case, and that the court did not abuse its discretion in the imposition of sentence. We shall affirm the conviction and the judgment and sentence entered thereon.

The case is not remarkable so far as the procedural steps are concerned. The appellant’s father, Richard Chester Jahnke, died on November 16, 1982, as a result of gunshot wounds. Those gunshot wounds were inflicted by the appellant, and that fact has never been an issue in this case. On November 18, 1982, a criminal complaint was filed in the County Court for Laramie County charging the appellant with first degree murder¹ and with conspiring with his sister, Deborah Ann Jahnke, to commit first degree murder.² On the same date that the complaint was filed the appellant was arrested; he was given appropriate advice with respect to his constitutional rights; and he was informed of the charges against him. On November 22, 1982, an appearance bond was set in the amount of $50,000, and the appellant was released the following day. He waived his right to a preliminary hearing which earlier had been set for November 29, 1982, and an Information which encompassed the same charges as the criminal complaint was filed in the District Court of the First Judicial District in and for Laramie County on December 1, 1982.

Arraignment was set for December 3, 1982, but on December 2, 1982, a number of motions were filed on behalf of the appellant, including a Motion to Transfer to Juvenile Court System and a motion to continue the arraignment until after the court had ruled upon the transfer motion. The appellant was arraigned on December 3, 1982, as scheduled, and he entered a plea of not guilty to both charges in the Information. At that time the State of Wyoming advised the court that it would not seek the death penalty in the case, and a hearing on the transfer motion filed by the appellant was set for January 10, 1983. After the appellant peremptorily challenged the district judge to whom the case had been assigned, the hearing on his pending motions was reset for January 17, 1983. Ultimately the hearing on the motions was continued until January 21, 1983, at the behest of the appellant.

A two-day hearing was conducted with respect to the appellant’s motions, and at that hearing he presented evidence and psychiatric testimony demonstrating that he had suffered from mental and physical abuse at the hands of his father over a long period of his life. Following the hearing, however, the court denied the appellant’s motion to transfer the case to juvenile court, and it was set for trial on February 14, 1983. The trial began as scheduled on February 14, 1983, and the case was submitted to the jury on February 19,1983. The jury, by its verdict, found the appellant not guilty of the charge of conspiracy to commit first degree murder, and found him guilty on the first degree murder count of the lesser included offense of voluntary manslaughter. The appellant then filed a Motion for Judgment of Acquittal and New Trial together with a Motion and Application for Bail Pending Sentence, and both of these motions were denied. The presen-tence investigation was ordered, and sentencing was set for March 18, 1983. The trial judge imposed the sentence of a term of not less than five years nor more than fifteen years in the state penitentiary, and the written Judgment and Sentence of the court was entered on March 21, 1983. It is from this judgment and sentence that the appellant has taken this appeal.

In his brief in this appeal the appellant articulates three issues which he asks the court to resolve. These are stated in that brief as follows:

“I. DID THE COURT ERR IN RESTRICTING DEFENDANT’S VOIR DIRE, THEREBY DENYING DEFENDANT THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, DUE PROCESS, A FAIR AND IMPARTIAL JURY AND A FAIR TRIAL?

“II. DID THE COURT ERR IN DENYING DEFENDANT THE RIGHT TO PRESENT EXPERT PSYCHIATRIC TESTIMONY IN HIS DEFENSE?

“HI. DID THE COURT ERR AND ABUSE ITS DISCRETION IN SENTENCING?”

The State of Wyoming, as appellee, substantially agrees with the appellant as to the issues, but it attaches a different emphasis to them in stating the issues in its brief as follows:

“I. DID THE TRIAL COURT ACT WITHIN THE SCOPE OF ITS DISCRETION WHEN IT REFUSED TO ALLOW APPELLANT TO ASK CERTAIN QUESTIONS DURING VOIR DIRE?

“II. DID THE TRIAL COURT ACT WITHIN THE SCOPE OF ITS DISCRETION WHEN IT REFUSED TO ALLOW DR. MCDONALD’S PSYCHIATRIC TESTIMONY?

“III. WAS THE SENTENCE APPELLANT RECEIVED FOR KILLING HIS FATHER EXCESSIVE?”

The material facts relating to the death of the appellant’s father can be briefly stated. On the night of his death the father took the mother out to dinner, apparently to celebrate the anniversary of their meeting. Earlier the appellant had been involved in a violent altercation with his father, and he had been warned not to be at the home when the father and mother returned. During the absence of his parents the appellant made elaborate preparation for the final confrontation with his father. He changed into dark clothing and prepared a number of weapons which he positioned at various places throughout the family home that he selected to serve as “backup” positions in case he was not successful in his first effort to kill his father. These weapons included two shotguns, three rifles, a .38 caliber pistol and a Marine knife. In addition, he armed his sister, Deborah, with a .30 caliber M-l carbine which he taught her how to operate so that she could protect herself in the event that he failed in his efforts. The appellant removed the family pets from the garage to the basement to protect them from injury in a potential exchange of gunfire between him and his father, and he closed the garage door. He then waited inside the darkened garage in a position where he could not be seen but which permitted him to view the lighted driveway on the other side of the garage door. Shortly before 6:30 p.m. the parents returned, and the appellant’s father got out of the vehicle and came to the garage door. The appellant was armed with a 12-gauge shotgun loaded with slugs, and when he could see the head and shoulders of his father through the spacing of the slats of the shade covering the windows of the garage door, he blew his R.O.T.C. command-sergeant-major’s whistle for courage, and he opened fire. All six cartridges in the shotgun were expended, and four of them in one way or another struck the father. The most serious wound was caused by a slug which entered the father on the right chest just above and to the inside of the right nipple, followed a trajectory which took it through the right rib cage and the right lobe of the liver, bruising the right lung and tearing the diaphragm along the way, into the middle of the chest cavity where it passed behind the heart nearly severing the aorta, inferior vena cava and the esophagus, then through the lower lobe of the left lung, finally lodging just under the skin in the mid-part of the victim’s back. About one hour after the shooting incident the father was pronounced dead from the wounds inflicted by the appellant.

After the shooting, and while the mother still was screaming in the driveway, the appellant and his sister exited the family home through a window in the mother’s bedroom, which was at the far end of the house from the garage. The appellant and his sister then went separate ways, and the appellant was arrested at the home of his girl friend. Prior to the arrival of authorities the appellant told his girl friend’s father that he had shot his dad for revenge. Subsequently, after being advised of his constitutional rights, the appellant made a statement in which he explained he had shot his father “for past things.”

Prior to dealing with the specific issues raised by the appellant his theory of defense should be put in perspective. Appellant has cited to us the case of Buhrle v. State, Wyo., 627 P.2d 1374 (1981), which involved a homicide by a wife who claimed to be a victim of abuse. The cases which are cited in Buhrle v. State, supra, lead into a series of cases involving homicides committed by women who were perceived as being victims of the “battered-wife syndrome.” While those cases deal with wives as victims of abuse, conceptually there is no reason to distinguish a child who is a victim of abuse. A perusal of those cases leads to a conclusion that the effort which is made on behalf of the defendants is to secure the recognition of a special defense in a homicide case for victims of family abuse. Succinctly stated, the attempt that is made is to establish the concept that one who is a victim of family abuse is justified in killing the abuser.

The departure of this theory from the usual requirements of self-defense is patent. In Garcia v. State, Wyo., 667 P.2d 1148 (1983), the prior decisions of this court with respect to the defense of self-defense were collected. There we said:

“We can identify several articulations of the rule of self-defense, and it may be that they are not definitive.

“ ‘ * * * Self-defense will justify a homicide when a reasonable person deems it necessary in order to avoid infliction of death or great bodily harm upon his or her person. To justify a homicide on this ground, it must appear that the defendant was in great peril of death or serious bodily harm, or had reasonable grounds for so believing. It must appear that the killing was a necessary and reasonable means of avoiding the threatened harm, and the facts and circumstances surrounding the event must be such as to afford such grounds for that belief.’ Leeper v. State, supra [Wyo., 589 P.2d 379 (1979) ], 589 P.2d at 382.

“ ‘It has been said several times in this jurisdiction that to justify a homicide on the ground of self-defense, it must appear the defendant was in great peril of death or serious bodily harm, or had reasonable ground for believing and did believe he was in such peril, and the killing was necessary to avert such peril, and no other reasonable means of avoiding it was open to him. * * * ’ Nunez v. State, supra [Wyo., 383 P.2d 726 (1963) ], 383 P.2d at 727.

“ ‘The law of self defense is founded upon necessity. To justify a homicide, it must appear that the slayer was in great peril of death or serious bodily harm, or had reasonable ground for believing and did believe, that he was in such peril and that the killing was necessary to avert such peril, and that no other reasonable means of avoiding it was open to him. * s * ’ Durham v. State, supra [29 Wyo. 85, 210 P. 934 (1922) ], 29 Wyo. at 96, 210 P. at 938.

“ ‘ * * ⅜ That to justify the taking of human life in self-defense, it must appear from the evidence that the defendant not only really, and in good faith, endeavored to decline any conflict with the deceased, and to escape from his assailant, if he had the opportunity so to do, if he was assailed, before he fired the shot in question, but it must also appear that the circumstances were such as to excite the fears of a reasonable person that the deceased intended to take his life, or to inflict upon him great bodily harm, and that the defendant really acted under the influence of such fears, and not in a spirit of revenge. * * ⅜ ’ Ross v. State, supra [8 Wyo. 351, 57 P. 924 (1899) ], 8 Wyo. at 383, 57 P. at 931.”

It is clear that self-defense is circumscribed by circumstances involving a confrontation, usually encompassing some overt act or acts by the deceased, which would induce a reasonable person to fear that his life was in danger or that at least he was threatened with great bodily harm.

This same circumstantial circumscription is discernible in the line of cases involving abused or battered wives. See Ibn-Tamas v. United States, D.C.App., 407 A.2d 626 (1979); Smith v. State, 247 Ga. 612, 277 S.E.2d 678, 18 A.L.R.4th 1144 (1981); State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980); People v. Adams, 102 Ill.App.3d 1129, 58 Ill.Dec. 325, 430 N.E.2d 267 (1981); People v. White, 90 Ill.App.3d 1067, 46 Ill.Dec. 474, 414 N.E.2d 196 (1980); and State v. Thomas, 66 Ohio St.2d 518, 20 Ohio Op.3d 424, 423 N.E.2d 137 (1981). The circumstances surrounding the killing are not set forth in either opinion of the Florida Appellate Court in Hawthorne v. State, Fla.App., 377 So.2d 780 (1979) or in Hawthorne v. State, Fla.App., 408 So.2d 801 (1982). Although many people, and the public media, seem to be prepared to espouse the notion that a victim of abuse is entitled to kill the abuser that special justification defense is antethetical to the mores of modern civilized society. It is difficult enough to justify capital punishment as an appropriate response of society to criminal acts even after the circumstances have been carefully evaluated by a number of people. To permit capital punishment to be imposed upon the subjective conclusion of the individual that prior acts and conduct of the deceased justified the killing would amount to a leap into the abyss of anarchy.

In People v. White, supra, and State v. Thomas, supra, the courts suggest that the true role of any evidence with respect to family abuse is to assist the jury to determine whether the defendant’s belief that he was in danger of his life or serious bodily injury was reasonable under the circumstances. In those cases the courts indicate that expert testimony with respect to such an issue is neither necessary nor relevant and for that reason is best eschewed. It is clear that if such evidence has any role at all it is in assisting the jury to evaluate the reasonableness of the defendant’s fear in a case involving the recognized circumstances of self-defense which include a confrontation or conflict with the deceased not of the defendant’s instigation.

It is in the context of the defendant’s theory of self-defense as it should be contrasted with the self-defense theory which is supported by precedent that we examine the specific claims of error made with respect to the voir dire examination of the jury panel and the admissibility of the expert testimony.

THE VOIR DIRE EXAMINATION OF THE JURY PANEL

A brief review of the law in Wyoming with respect to voir dire examinations of members of a jury panel is appropriate here. The substantive grounds for challenging a juror for cause in a criminal case are encompassed in § 7-11-105, W.S.1977:

“(a) The following shall be good cause for challenge to any person called as a juror on any indictment:

“(i) That he was a member of the grand jury which found the indictment;

“(ii) That he has formed or expressed an opinion as to the guilt or innocence of the accused, or is biased or prejudiced for or against the accused;

“(iii) In indictments for an offense, the punishment whereof is capital, that his opinions are such as to preclude him from finding the accused guilty of an offense punishable with death;

“(iv) That he is a relation within the fifth degree to the person alleged to be injured, or attempted to be injured, by the offense charged or to the person on whose complaint the prosecution was instituted, or to the defendant;

“(v) That he has served on a petit jury which was sworn in the same cause against the same defendant, and which jury either rendered a verdict which was set aside, or was discharged after hearing the evidence;

“(vi) That he has served as a juror in a civil case brought against the defendant for the same act;

“(vii) That he has been subpoenaed as a witness in the case.

“(b) The same challenges for cause shall be allowed in criminal prosecutions that are allowed to parties in civil cases.”

The challenges for cause in a civil case adopted by reference are found in § 1 — 11— 203, W.S.1977, which provides:

“(a) Challenges for cause may be taken on one (1) or more of the following grounds:

“(i) A lack of any of the qualifications prescribed by statute which render a person competent as a juror;

“(ii) Relationship by consanguinity or affinity within the third degree to either party;

“(iii) Standing in the relation of debtor or creditor, guardian or ward, master or servant, or principal or agent to either party, or being a partner united in business with either party, or being security on any bond or obligation for either party;

“(iv) Having served as a juror or a witness in a previous trial between the same parties for the same cause of action, or being then a witness therein;

“(v) Interest on the part of the juror in the event or question involved in the action, but not an interest of the juror as a member or citizen of a municipal corporation;

“(vi) Having formed or expressed an unqualified opinion or belief as to the merits or the question of the action. The reading of newspaper accounts of the subject matter before the court shall not disqualify the juror either for bias or opinion;

“(vii) The existence of a state of mind in the juror evincing enmity or bias for either party.”

The procedure with respect to jury selection now is found in Rule 25, W.R.Cr.P., which provides in pertinent part as follows:

“(a) Examination of jurors. — The parties, or their attorneys, may conduct the examination of prospective jurors, but such examination shall be under the supervision and control of the court, and the court may itself conduct such further examination as it deems proper. (See Rule 17, D.Ct.)

“(b) Peremptory challenges. — In every case, including the selection of alternate jurors, the state shall be entitled to the aggregate number of peremptory challenges to which the defendant or defendants are entitled. If the offense charged is punishable by death, each defendant shall be entitled to 12 peremptory challenges. If the offense charged is punishable by imprisonment for more than one (1) year, each defendant shall be entitled to 8 peremptory challenges. If the offense charged is a misdemeanor, each defendant shall be entitled to 4 peremptory challenges.”

This rule is supplemented by Rule 17 of the Uniform Rules for the District Courts of the State of Wyoming, which was invoked by the trial judge in this case, and provides as follows:

“The only proper purpose of voir dire of jurors is to select a panel of six (6) jurors in a civil case, twelve (12) jurors if specific demand is made, and twelve (12) jurors in a criminal case, who will fairly and impartially hear the evidence presented and render a just verdict and to determine the ground for any challenge for cause prescribed by §§ 1-121 (civil) or 7-224 (criminal), W.S.1957 [§ 1-11-203 (civil) or § 7-11-105 (criminal) ], as modified by judicial decision. Counsel will not:

“1. Ask questions of an individual juror that are susceptible of being asked collectively;

“2. Ask questions covered by and answered in juror questionnaire except to explore some questionnaire answer in greater depth;

“3. Repeat question asked and answered, though asked by opposing counsel; “4. Use voir dire for the purpose of attempting to instruct the jury on the law; that is the court’s function;

“5. Use voir dire for the purpose of arguing the case;

“6. Ask a juror what his verdict might be under any hypothetical situation based upon any expected evidence or otherwise.

“Upon failure of counsel to abide by this rule, the court may assume voir dire of the jury. The court may in such case require counsel to submit in writing, specific questions to be asked by the court.”

The object of voir dire examination of members of the jury panel is to explore the possibility that a prospective juror is subject to a challenge for cause under our statutes quoted above. Lopez v. State, Wyo., 544 P.2d 855 (1976). Voir dire examination is designed to insure the right to a fair and impartial jury by affording the parties the opportunity to discover potential prejudices and biases which would interfere with the ability of potential jurors to fairly decide the case, and the preservation of that right to prove actual bias is an integral portion of the right of a defendant to an impartial jury. Dennis v. United States, 339 U.S. 162, 164, 70 S.Ct. 519, 521, 94 L.Ed. 734, 737 (1950), reh. denied 339 U.S. 950, 70 S.Ct. 799, 94 L.Ed. 1364 (1950); Lopez v. State, supra. Of the statutory grounds for challenge for cause with respect to prospective jurors in a criminal case the most significant well may be “bias or prejudice for or against the accused.” Section 7—11—105(a)(ii), W.S.1977. The entitlement is to a fair and impartial jury, not one sympathetic to the defendant. “ ‘Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.’ ” Dennis v. United States, supra, 339 U.S. at 172, 70 S.Ct. at 523, quoting from United States v. Wood, 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 87 (1936).

The appellant and the appellee acknowledge that the trial court is vested with broad discretion concerning the questioning of potential jurors during voir dire. Rule 25(a), W.R.Cr.P.; Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Lopez v. State, supra; and Gerard v. State, Wyo., 511 P.2d 99 (1973), cert. denied 414 U.S. 1072, 94 S.Ct. 585, 38 L.Ed.2d 478 (1973). The only inhibition regarding the discretion of the trial court is that it must be exercised subject to the essential demands of fairness. Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). In deference to the discretion of the trial court, appellate courts have not been inclined to prescribe rigid rules with respect to the conduct of voir dire examinations. Rosales-Lopez v. United States, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981); Gerard v. State, supra. It is the trial court which assumes primary responsibility for the selection of jurors who will be able to follow its instructions on the law and evaluate the evidence without bias or prejudice to either side, and it is necessary as a pragmatic proposition to rely upon discretion of the trial court in performing that task. As the Supreme Court said in Rosales-Lopez v. United States, supra, 451 U.S. at 188, 101 S.Ct. at 1634:

“Despite its importance, the adequacy of voir dire isl not easily subject to appellate review. The trial judge’s function at this point in the trial is not unlike that- of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. See Ristaino v. Ross, 424 U.S. 589, 595, 96 S.Ct. 1017, , 47 L.Ed.2d 258 (1976), quoting Rideau v. Louisiana, 373 U.S. 723, 733, 83 S.Ct. 1417, 1422, 10 L.Ed.2d 663 (1963) (Clark, J., dissenting). In neither instance can an appellate court easily second-guess the conclusions of the decision-maker who heard and observed the witnesses.”

The impartiality of the jurors is a question of fact to be decided by the trial court upon the basis of proper questioning.

Further, the party contesting the rulings of the trial court with respect to the scope and content of voir dire examination of jurors is obligated to establish not only an abuse of the trial court’s proper discretion, but he must demonstrate substantial prejudice to his rights as a result of that abuse of discretion. United States v. Robinson, 154 U.S.App.D.C. 265, 475 F.2d 376 (1973). See also Hopkinson v. State, supra; Collins v. State, Wyo., 589 P.2d 1283 (1979); Lopez v. State, supra; Loy v. State, 26 Wyo. 381, 185 P. 796 (1919); and Keffer v. State, 12 Wyo. 49, 73 P. 556 (1903). While in this case we can perceive no prejudice to the rights of the appellant with respect to the court’s rulings in connection with voir dire examination of the jurors, we do not reach that question in light of our conclusion that in this instance no abuse of discretion was demonstrated.

The appellant contends that the trial court abused its discretion in two areas: (1) that the district judge improperly limited areas of questioning relating to discipline of children which could be perceived as abusive; and (2) that the district court improperly refused to permit him to question jurors about their attitudes with respect to justification for the taking of a human life. There is also presented a corollary argument by the appellant to the effect that the restrictions upon his questioning inhibited the exercise of his peremptory challenges of members of the jury panel.

With respect to his first claim relating to voir dire examination, counsel for the appellant informed the court prior to the beginning of jury selection that he wanted to ask jurors how they disciplined their children if they had children. He was permitted to ask that question, but he also indicated that he wanted to inquire of the jurors whether they thought it would be proper discipline to strike a child of the age of two; whether it would be proper discipline or proper parental conduct to lie on top of your daughter when she is eleven years old and put your hands in her pants; whether it would be proper to strike your children with a closed fist on the back; and, in the area of mental or psychological abuse, whether it would be proper to put down children who are very young, swear at them and cuss at them. The trial court, as noted, permitted the question with respect to the manner of discipline of their children, but refused to permit counsel to ask the other questions, stating that it constituted indirectly asking them for their reaction to expected evidence which the district judge perceived to be contrary to the provisions of Rule 17 of the Uniform Rules of the District Courts quoted above. In connection with the request to inquire about mental or psychological abuse, the court ruled that in its judgment that amounted to attempting to try the appellant’s case during the voir dire examination.

In the context of this case there was no abuse of discretion in the refusal of the trial court to permit the specific questions that appellant desired to raise with the members of the. jury panel. Gerard v. State, supra. The trial court is not required to permit improper questioning of the jury panel simply because a party requests permission to ask such questions, and no specific method of questioning is prescribed for voir dire examinations. Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973); Aldridge v. United States, supra.- The questions which appellant sought to ask were not designed to reveal any hidden bias or prejudice on the part of members of the jury panel. They were patent requests to obtain the reaction of potential jurors to the appellant’s theory of defense in the case and to anticipated evidence. The trial court was well within the limits of its discretion in refusing to permit such questions to be asked.

With respect to the request to inquire of the panel whether any of them felt that there is no justification ever for the taking of a human life, counsel for the appellant advised the district court that the reason he wanted to ask that question was to ascertain whether the members of the panel would be able to follow the court’s instruction concerning self-defense if such an instruction were given. At that particular time there was pending before the court a motion in limine filed by the State which sought a ruling that an instruction on self-defense would be improper under the circumstances of this case. The trial court, however, did not rely upon the position of the State, but ruled that it would be improper to permit a question on potential instructions and that such questioning defeated the purpose of the uniform rule of the District Courts. Appellant relies upon State v. Brown, Mo., 547 S.W.2d 797 (1977), but with all due respect to our brothers on the Supreme Court of Missouri we decline to follow that rule. Prior to the voir dire examination by counsel the district judge in this case had inquired of the jury if any of them could not accept the law in the case as given to them by the court, even though they might disagree with the law as they were instructed, and no one indicated any difficulty in following the instructions of the court. Consequently the approach taken by the court with respect to limiting questions about legal theories which might later be incorporated in instructions was a proper exercise of the court’s discretion in this case.

The appellant, however, also seeks to structure an analogy to cases in which capital punishment is sought and the right othe State to inquire during voir dire whether any of the prospective jurors could not impose a death penalty under any circumstances. We note that that is a statutory subject of challenge for cause in Wyoming. Section 7 — 11—105(a)(iii), W.S.1977. The inquiry has been specifically approved in the jurisprudence of this state and the United States. Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968); Hopkinson v. State, supra; Pixley v. State, Wyo., 406 P.2d 662 (1965); and State v. Aragon, 41 Wyo. 308, 285 P. 803 (1930). It is appellant’s position that like the capital punishment question he should have been allowed to determine, by asking potential jurors during voir dire, what their attitudes might be toward self-defense in order to discover whether they had closed minds with respect to a particular outcome. In this regard we find the following language from Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262, 264-265 (1972), to be instructive and apt:

“Appellant’s first contention is that it was an abuse of discretion for the trial court to deny him the opportunity to examine prospective jurors as to their ability to apply the law of self-defense. He attempts to create an analogy between the Commonwealth’s right to ask prospective jurors whether under certain circumstances they could impose the death penalty and this defendant’s claimed right to ascertain whether a jur- or could apply the law of self-defense. Cf. Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). “The trial court specifically inquired of every prospective juror whether if selected as a juror that individual could abide by the court’s instructions as to the law on every aspect of the case. Appellant’s asserted symmetry between the permitted voir dire examination involving the death penalty and his requested voir dire on the subject of self-defense has no legal or factual basis. There has been no showing of a widespread public concern with a juror’s ability to impartially and fairly apply the law of self-defense similar to that involving the imposition of the death penalty. Cf. Witherspoon v. Illinois, 391 U.S. at 519, 88 S.Ct. at 1775-1776. Absent such a showing or any reasonable basis for the requested extension of the present permissible limits of voir dire we cannot say that the trial court abused its discretion in refusing to allow defense counsel to probe into this area. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); ABA Project on Minimum Standards for Criminal' Justice, Standards Relating to Trial by Jury, § 2.4 (Approved Draft, 1968) (‘The judge should then [on voir dire] put to the prospective jurors any questions which he thinks necessary....’)”

We conclude that there was no error in refusing permission to the appellant to inquire about the jurors’ attitudes with respect to his theory of self-defense. There is ample authority for the proposition that it is not an abuse of discretion to refuse questioning on propositions of law or instructions that might be given at the conclusion of the trial. United States v. Gillette, 383 F.2d 843 (2nd Cir.1967); Stone v. United States, 324 F.2d 804 (5th Cir.1963), cert. denied 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 649 (1964); United States v. Crawford, 444 F.2d 1404 (10th Cir.1971), cert. denied 404 U.S. 855, 92 S.Ct. 98, 30 L.Ed.2d 95 (1971); Hart v. State, 137 Ga.App. 644, 224 S.E.2d 755 (1976); State v. Clark, La., 325 So.2d 802 (1976); Carder v. State, 5 Md.App. 531, 248 A.2d 495 (1968); Oliver v. State, 85 Nev. 418, 456 P.2d 431 (1969); and Commonwealth v. Fisher, supra. Here there was no showing made of any special circumstances which required that questions be asked with respect to the issue of self-defense, i.e., that such questioning was reasonably calculated to discover an actual and likely source of prejudice. See Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); United States v. Robinson, supra; and Commonwealth v. Fisher, supra. Subsections (4) and (6) of Rule 17, Uniform Rules for the District Courts of the State of Wyoming, for the guidance of counsel and the courts in this jurisdiction, specifically prohibit attempts to use voir dire for the purpose of instructing the jury with respect to applicable law or determining what a juror’s verdict might be under a hypothetical situation.

In this instance we also ascribe significance to the fact that at the time the appellant sought to inquire with respect to the issue of self-defense, the court did not know whether the evidence would justify an instruction on that issue. By virtue of its motion in limine and otherwise the State was contending that it would not. The trial court also had the benefit of testimony taken at the hearing directed at the issue of transfer of the case to the juvenile court. We have held that the trial court need only instruct on a defendant’s theory of the case where there is evidence which supports that theory. Grable v. State, Wyo., 649 P.2d 663 (1982); and Goodman v. State, Wyo., 573 P.2d 400 (1977). Here the trial court did give an instruction on the defense of self-defense at the conclusion of the trial. As we noted in Garcia v. State, supra, our reading of the record leaves us skeptical with respect to the validity of the defense of self-defense under these circumstances, but the testimony of the appellant that he acted in self-defense is sufficient to justify the instruction. We have been afforded, however, no reason to speculate that the jurors violated their oaths and in some way refused to follow the court’s instruction on the theory of self-defense. In this instance the contrary appears. If anything the verdict of the jurors demonstrates sympathy with respect to the appellant’s claim of justification. We perceive no prejudice to the appellant arising out of the inhibition of voir dire examination.

In a corollary argument, however, the appellant argues that his right to make intelligent use of his peremptory challenges was inhibited. Although the Supreme Court of the United States has recognized that there is no constitutional right of an accused to peremptory challenges with respect to potential jurors in criminal cases, Stilson v. United States, 250 U.S. 583, 40 S.Ct. 28, 63 L.Ed. 1154 (1919), if peremptory challenges are made available they become “one of the most important of the rights secured to the accused.” Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894). Accord, Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). As the Court said in Swain v. State of Alabama, supra, 380 U.S. at 219-220, 85 S.Ct. at 835, “[The availability of peremptory challenges] allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause.” The Court also noted in Swain v. State of Alabama, supra, that the peremptory challenge is by its very nature one which is exercised without a stated reason, without inquiry and without being subject to the control of the court. Even though the availability of a peremptory challenge facilitates the process of the selection of an impartial jury by encouraging full, free, and comprehensive voir dire examination of prospective jurors with regard to bias, prejudice or any other grounds for challenge for cause while at the same time affording the party protection from antagonism that may be developed by such voir dire, still the purpose of the voir dire is not to explore for a reason for the exercise of the peremptory challenge. The Supreme Court of the United States quite recently has held that the failure of a juror to answer a question on voir dire would justify a new trial only if a correct answer would have furnished a basis for a challenge for cause. McDonough Power Equipment, Inc. v. Greenwood, — U.S. -, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). If no prejudicial error can be found in such an instance surely there could be no prejudicial error attaching to a ruling by the trial court that a question which does not pertain to a ground for a challenge for cause cannot be asked.

Furthermore, the appellant has not made any showing by brief or argument with respect to prejudice arising out of any inhibition of his exercise of peremptory challenges. The record is silent as to whether or in what manner the appellant exercised his peremptory challenges. His argument is not that he was denied his right with respect to the use of the peremptory challenges, but simply that he could in some way have better utilized his challenges if the trial court had not exercised its discretion with respect to the conduct of voir dire in the manner in which it did. There is no error to be found in this claim. The appellant was entitled to a fair and impartial jury, not one which he perceived to be sympathetic. In this regard we note that the following matter does appear in the record on appeal:

“THE COURT: Are the parties satisfied that a jury of twelve, plus two alternates, has been drawn and qualified in this matter? Mr. Carroll?

“MR. CARROLL: The State is satisfied, Your Honor.

“THE COURT: And, Mr. Barrett?

“MR. BARRETT: Defense is satisfied, Your Honor.” ³

In summary, there does not appear any abuse of discretion by the trial court with respect to the conduct of the voir dire examination of the jury panel in this instance. We appreciate the desire of counsel to try their case at the time of voir dire examination, but if the trial court, in the exercise of its discretion, does not permit that the parties have no legal basis for complaint. We might note in passing the dismay sometimes expressed with respect to the lengthy process of jury selection in some courts around this country. See People v. Crowe, 8 Cal.3d 815, 106 Cal.Rptr. 369, 506 P.2d 193 (1973). Obviously that is what occurs if counsel are given free rein to present imaginative theories, contentions, and potential evidence in the course of the examination of the jurors for challenge for cause. We conclude that the policy represented by Rule 17, Uniform Rules for the District Courts, and the practice in our trial courts, as exemplified here, is sound. The parties are furnished the opportunity to make proper inquiry, but they are foreclosed from trying their cases at the time of voir dire.

THE EXPERT PSYCHIATRIC WITNESS

The appellant’s second issue involves his attempt to elicit testimony from a forensic psychiatrist by whom the appellant had been examined at the request of defense counsel. Two aspects of the ruling of the court are complained of by the appellant. The first is the ruling by the district court which sustained an objection by the State to a question of the forensic psychiatrist about what the appellant had told the psychiatrist about his family home life and his experiences in growing up. The second aspect involves questions upon which the district court did not rule which deal with the pertinency of expert testimony as it might assist the jury in assessing the reasonableness of the appellant’s conclusion that his life was threatened or that he was in danger of serious bodily injury in connection with the killing of his father.

As to the first aspect of this contention by the appellant the question asked was:

“Q What did he tell you about his family home life and his growing up experiences?”

The appellant’s position is that such testimony is admissible under the exception to the hearsay rule contained in Rule 803(4), W.R.E., which provides:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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“(4) Statements for purposes of medical diagnosis or treatment. — Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”

We recently have dealt with this particular exception to the hearsay rule in Goldade v. State, Wyo., 674 P.2d 721 (1983). We there held that a physician who was examining a child victim of abuse could testify with respect to statements made by the child victim. We held that this was permissible because the doctor was engaged in making a diagnosis of the “battered-child syndrome.” We had no occasion to consider the testimony of the physician as it might apply to a case of self-defense.

The record discloses that the State’s objection was that the information sought to be elicited by this question was not relevant. There followed lengthy argument between counsel for the appellant and counsel for the State which encompassed matters reaching the second aspect of the appellant’s position with respect to the testimony of the forensic psychiatrist. Ultimately the trial court articulated, its ruling in this way:

“Well, the court isn’t convinced that what was stated to Dr. McDonald by the defendant here clearly falls into the hearsay exception.

“And I state that for the reasons that I have previously expressed to counsel. “It would appear that the primary reason that the defendant consulted Dr. McDonald was to later provide Dr. McDonald’s testimony in court, as being presented here today.

“I haven’t been presented any evidence of any court’s acceptance of the science of the battered child, what can be predicted from the battered child. I don’t believe that Dr. McDonald’s testimony is being offered as an admission against interest, although there may be an admission against interest contained in some of the things told to him or alleged to have been told to him by the defendant.

“And Mr. Carroll can’t cross-examine the defendant as to what he has told the doctor, so I don’t see where cross-examination is the great protector in this instance.

“I believe that the testimony and the opinions and conclusions of Dr. McDonald, as suggested by counsel, would invade the province of the jury.

“The jury, I believe, is to determine the reasonableness of any fears, and they should determine that by evidence of a person who testifies as to the facts, the situation, and draw their conclusions. “The court is sustaining the objections of the state to this testimony.”

These comments sufficiently distinguish Goldade v. State, supra.

The rule which this court has applied with respect to rulings as to admissibility of evidence is articulated in Taylor v. State, Wyo., 642 P.2d 1294, 1295 (1982), as follows:

“It has been held generally that the admission of evidence is within the sound discretion of the trial court and absent a clear abuse of discretion will not be disturbed. It is also the general rule that the foundation, relevance, competency, materiality, and remoteness are within the sound discretion of the trial court and will be upheld on appeal absent a clear abuse of discretion.” (Footnotes omitted.)

The burden of establishing the clear abuse of discretion must be assumed by the party who attacks the ruling of the trial court. Buhrle v. State, supra; Nimmo v. State, Wyo., 603 P.2d 386 (1979). That party must establish that the ruling of the trial court was erroneous and that it did affect substantial rights of the party. The trial court in the exercise of its discretion can exclude even relevant evidence when there are countervailing considerations such as “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Rule 403, W.R.E.

The definition that this court has espoused of an abuse of discretion is found in Martinez v. State, Wyo., 611 P.2d 831, 838 (1980), where it is stated as follows:

“* * * An abuse of discretion has been said to mean an error of law committed by the court under the circumstances. * * * )>

When an abuse of discretion is relied upon we should examine the ruling in light of the situation before the trial court at the time it ruled. We have said:

“In the context of evidentiary rulings at trial, this court has long adhered to the doctrine that a sufficient offer of proof is necessary so that this court may be adequately apprised of the nature of the excluded testimony. Padilla v. Stale, Wyo., 601 P.2d 189 (1979); Elliott v. State, Wyo., 600 P.2d 1044 (1979); Montez v. State, Wyo., 573 P.2d 34 (1977); Pack v. State, Wyo., 571 P.2d 241 (1977); State v. Goettina, supra [61 Wyo. 420, 158 P.2d 865 (1945)]; State v. Rouse, [58] Wyo. 468, 134 P.2d 1116 (1943); Jenkins v. State, 22 Wyo. 34, 134 P. 260, reh. denied [22 Wyo. 34], 135 P. 749 (1913); and McGinness v. State, 4 Wyo. 115, 31 P. 978, reh. denied [4 Wyo. 115], 53 P. 492 (1893). The dual purpose of this requirement is to enable the trial court to be fully advised in the exercise of its discretion regarding the admission of evidence, and to enable the reviewing court to determine if prejudicial error resulted from the exclusion of the proffered testimony.” Garcia v. State, Wyo., 667 P.2d 1148, 1155 (1983).

In the course of the argument with respect to this objection various statements were made on behalf of the appellant which can be considered as at least in the nature of an offer of proof. We will say more about those comments later, but at this point it is sufficient to recognize that the suggestion made to the court was that the testimony of the forensic psychiatrist was leading up to a showing of the reasonableness of the appellant’s conduct and actions on the night of his father’s death. The appellant, however, did not demonstrate in the offer of proof how this information would relate to a claim of self-defense.

It also is significant that at the time the testimony of the forensic psychiatrist was offered there had been no showing made in the record that the appellant was acting in self-defense. See State v. Velsir, 61 Wyo. 476, 159 P.2d 371, 161 A.L.R. 220 (1945); and Mortimore v. State, 24 Wyo. 452, 161 P. 766 (1916). The point is made by comparing the factual circumstances in this case with those in Mortimore v. State, supra. In Mortimore v. State, supra, the defendant was convicted of manslaughter for the shooting death of his father. The justification which served as a defense was that the defendant had acted in defense of a brother who was being violently assaulted by the father. The point raised on appeal was the exclusion by the trial court of proffered evidence relating to specific acts of violence by the deceased upon the defendant and other members of the family and threats made by the deceased in the presence of the defendant at the time of the shooting. In that case this court said:

"We are convinced that the better reasoning sustained the rule that such evidence is admissible, under a claim of self-defense, where there is evidence tending to support it, when the facts might have affected defendant’s apprehensions. There was in this case, not merely an impending assault by the deceased upon the defendant’s brother, but an actual and violent assault by one of greater strength and with the advantage of position, immediately following a threat, seemingly made in anger, which, if carried out, might result, not only in great bodily harm to the one assailed, but the taking of his life. That he was in danger of some bodily harm was apparent. The question then was the probability of the assault continuing and the extent of the danger; and we think it clear that the defendant’s apprehension as to that matter might reasonably have been affected by his knowledge of the previous assaults upon himself, his mother, and sister. We are of the opinion, therefore, that the evidence to show such acts was admissible, and that its exclusion was error and prejudicial; and the prejudice was enhanced by the conflict in the evidence respecting the general reputation of the deceased. ⅜ ⅜ J;: ” 161 P. at 774.

Analytically, based upon what was said by this court in Mortimore v. State, it might be said that a history of child abuse comes within the usual rule permitting evidence of prior acts of violence on the part of the deceased. The Supreme Court of Ohio put the matter in perspective in State v. Thomas, supra, when it said at 66 Ohio St.2d 520, 423 N.E.2d 137:

“In a trial such as this one, where the evidence raises an issue of self-defense, the only admissible evidence pertaining to that defense is evidence which establishes that defendant had a bona-fide belief she was in imminent danger of death or great bodily harm, and that the only means of escape from such danger was through the use of deadly force. * * * ” (Footnote omitted.)

If this purpose is recognized with respect to the testimony sought to be elicited from the forensic psychiatrist the propriety of the trial court’s refusal to invoke the hearsay exception relied upon must be recognized.

At the time of the trial court’s rulings the facts manifested by the record in this case contrast significantly with those in Mortimore v. State, supra. This record contained no evidence that the appellant was under either actual or threatened assault by his father at the time of the shooting. Reliance upon the justification of self-defense requires a showing of an actual or threatened imminent attack by the deceased. See Garcia v. State, supra; State v. Velsir, supra; and the cases cited therein. In a case involving a defense of self-defense by an abused wife the Supreme Court of Illinois, in addressing facts similar to these, said:

“ * * * It is true that, under the law of self-defense, one who is deliberately assaulted in a manner to make him reasonably apprehensive of death or great bodily harm has the right to kill his assailant, if it reasonably appears to him that such action is necessary to save himself from death or great bodily harm. (People v. Motuzas, 352 Ill. 340, 185 N.E. 614; see People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126.) However, the right of self-defense does not imply the right of attack in the first instance or permit action done in retaliation or revenge. (People v. Gibbs, 349 Ill. 83, 181 N.E. 628; People v. Andrews, 327 Ill. 162, 158 N.E. 462.) While there is much testimony indicating that defendant had frequently been physically mistreated by her husband, that is not the question here. The question is, rather, whether the evidence shows that, at this particular instant, her husband had made an unprovoked assault upon her which put her in reasonable fear of imminent death or great bodily harm which could be avoided only by stabbing him. ⅜ i: * ” People v. Dillon, 24 Ill.2d 122, 180 N.E.2d 503, 504 (1962).

Absent a showing of the circumstances involving an actual or threatened assault by the deceased upon the appellant, the reasonableness of appellant’s conduct at the time was not an issue in the case, and the trial court, at the time it made its ruling, properly excluded the hearsay testimony sought to be elicited from the forensic psychiatrist.

The second aspect of the appellant’s position is far broader than the record will support. As noted in connection with the argument surrounding the objection of the State with respect to the specific question quoted above, counsel for the appellant touched upon the overall purpose of the testimony of the forensic psychiatrist. It is clear that the psychiatrist had interviewed the appellant on seven separate occasions for a total of twelve hours in preparation for the trial. He also had visited with other people about the appellant. At the trial appellant’s counsel advised the court that the psychiatrist would express an opinion as to the appellant’s mental or emotional condition, and the assertion was made that the appellant had a right to establish the facts which formed the basis for that opinion. The counter-argument of the State was premised upon Smith v. State, Wyo., 564 P.2d 1194 (1977), and was to the effect that such an opinion was not admissible in the absence of a plea of not guilty by reason of mental illness or deficiency. See § 7-11-304(a), W.S.1977. Reference was made to the psychiatrist’s testimony at the time of the hearing on the appellant’s motion to transfer the case to the juvenile court. On that occasion the psychiatrist had testified that in his opinion the appellant was a battered youth suffering from a mental disorder which was not defined or recognized under the accepted standards of diagnosis of mental and personality disorders in his field of expertise. At that hearing he related the history of the appellant’s abuse at the hands of his father as the appellant had given it to him. He said that the appellant was very much afraid of his father.

In further support of the admissibility of testimony from the forensic psychiatrist counsel advised the court:

“We would submit that Dr. McDonald’s testimony would go to the fact that the defendant Richard Jahnke was brutalized by his father in May of 1982, that he was brutalized by his father on November 16th of 1982, that he had been brutalized by his father for many years in the past.

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“We would also submit to the court that if the court feels that it is necessary that Dr. McDonald should not be allowed to render any opinion of or diagnosis, the defense could abide by that statement. “However, we would make an offer of proof that, if allowed to testify, he would testify that he believes that Richie Jahnke is emotionally impaired, that he believes that Richie Jahnke is a battered child.

“We believe that those issues, as to his diagnosis and opinions, are separate and distinct as to his testimony and statements concerning the other factors that Richie Jahnke told him.”

In response to a concern of the trial court with respect to the sufficiency of the state of scientific knowledge regarding the “battered-child syndrome,” counsel for the appellant asked the trial judge if they might correct some of the problems connected with the psychiatrist’s testimony if they provided evidence or testimony with regard to the state of scientific knowledge as it pertained to the effect of the battered-child syndrome. The following dialogue then occurred:

“THE COURT: If you want to make — If you want to attempt that, the court will always listen to you and hear you.

“MR. BARRETT: Is the court, then, ruling that it is acceptable for us to present evidence out of order first on the matter of the battering and the effect of that type of battering upon Mr. Jahnke prior to submitting evidence of state of mind and fear on November 16th of 1982?

“THE COURT: Well, the court is saying that it will rule on the objections as they are presented.”

As noted, the appellant invokes the theory discussed in Buhrle v. State, supra, and the other cases involving the “battered-wife syndrome.” We do not perceive how the offer of proof presented by the appellant was sufficient to satisfy the criteria for admissibility of expert testimony quoted in Buhrle v. State, supra, 627 P.2d 1376, from Dyas v. United States, 376 A.2d 827, 832 (D.C.C.A.1977), cert. denied 434 U.S. 973, 98 S.Ct. 529, 54 L.Ed.2d 464 (1977). We particularly note that there was no offer to prove that the state of the pertinent art or scientific knowledge permitted a reasonable opinion to be asserted by the expert, and the suggestion of his earlier testimony on the occasion of the motion hearing is to the contrary.

Be that as it may, the effort to produce testimony from the forensic psychiatrist was abandoned by the appellant. The argument concerning the objection occurred at the close of trial on one day. Despite the court’s statement that it would be willing to listen to further matter in this area, the psychiatrist never was recalled to the stand. We cannot speculate as to what may have led to that decision by the appellant. We do know that the following day the appellant initially agreed to plead guilty to a charge of voluntary manslaughter in exchange for a reduction of the charge of first degree murder to manslaughter and dismissal of the conspiracy charge. Later in the day his counsel advised the court that the appellant did not wish to do that, and a further recess was granted by the court. Ultimately counsel for the appellant informed the court that the appellant desired to continue with the trial. The forensic psychiatrist was not released by the court, and the record discloses that he was in Cheyenne during the morning of this day of the trial. When the trial resumed in the afternoon, however, a new witness was called. Under these circumstances the record does not support any claim of error with respect to the alleged refusal of the trial court to permit expert testimony designed to justify the reasonableness of the actions of the appellant assuming that a self-defense context were developed.

ABUSE OF DISCRETION IN SENTENCING

The only other issue raised by the appellant is his contention that the trial court impermissibly abused its discretion in imposing a sentence of not less than five nor more than fifteen years in the state penitentiary. The rule of law which this court has articulated in a number of earlier holdings is that if a sentence is within the statutory limits it will not be disturbed upon appeal absent a clear abuse of discretion. Eaton v. State, Wyo., 660 P.2d 803 (1983); Taylor v. State, Wyo., 658 P.2d 1297 (1983); Daniel v. State, Wyo., 644 P.2d 172 (1982); Cyrus v. State, Wyo., 639 P.2d 900 (1982); Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); Jones v. State, Wyo., 602 P.2d 378 (1979); Smith v. State, Wyo., 564 P.2d 1194 (1977); Daellenbach v. State, Wyo., 562 P.2d 679 (1977); Cavanagh v. State, Wyo., 505 P.2d 311 (1973); Bird v. State, 36 Wyo. 532, 257 P. 2 (1927); and State v. Sorrentino, 36 Wyo. 111, 253 P. 14 (1927).

In his argument the appellant recognizes the historic rule of this court pursuant to which sentencing is left to the sound exercise of discretion by the trial court. He urges, however, that in the absence of standards under which the fairness of a sentence can be measured there is no possibility of demonstrating either an abuse of discretion, or circumstances which manifest unfairness and injustice, or conduct which offends the public sense of fair play. Scheikofsky v. State, supra. The appellant urges that there be adopted for the State of Wyoming the objectives and standards for review set forth by the Supreme Court of Alaska in State v. Chaney, Alaska, 477 P.2d 441 (1970)⁴ and applied in Ripley v. State, Alaska, 590 P.2d 48 (1979). The position of the appellant is that the application of these standards and objectives in this case must lead to a conclusion that there was an abuse of the trial court’s discretion in sentencing.

At the time that sentence was imposed the record discloses that the trial judge had read and considered a presentence report prepared by the Department of Probation and Parole as well as a report prepared by the National Center on Institutions and Alternatives. He had considered the options available to him in sentencing and, in addition, he had reviewed communications he had received from members of the public concerning the sentence. The trial court was fully aware of all the circumstances surrounding this crime and the character of the appellant at the time sentence was imposed. The trial court found that the verdict entered by the jury properly reflected their compassion for the appellant and also their rejection of his theory of self-defense. The court expounded on the various factors it had considered in reaching its sentence and concluded that “for the purposes of recognizing and supporting society’s law, for its protection, for discouraging other persons from committing acts similar to yours, and to satisfy the need to trust in public justice as opposed to private justice, the court has decided against probation.” The court then entered its sentence.

This sentence is within the statutory limits, and in light of the record of the sentencing proceedings we are unable to conclude that the sentence imposed by the trial court amounted to an error of law under the circumstances. We perceive no abuse of discretion and agree with and affirm the sentence imposed by the trial court. We believe that the same result would be reached if this case were before the Supreme Court of Alaska.

Since there is no error in these proceedings such as that claimed by the appellant, the Judgment and Sentence of the district court is affirmed.

1 . Section 6-1-101, W.S.1977, in effect at the time this offense was committed, provided:

"(a) Whoever purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate any rape, sexual assault, arson, robbery or burglary, or by administering poison or causing the same to be done, kills any human being, or whoever purposely and with premeditated malice kills any peace officer, corrections employee or fireman acting in the line of duty, is guilty of murder in the first degree.

"(b) A person convicted of murder in the first degree shall be punished by death or life imprisonment according to law."

2 . Section 6-l-203(a), W.S.1977 (1982 Cum. Supp.), in effect at the time this offense was committed, provided:

"A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons to commit a crime and he or another person does an overt act to effect the object of the agreement."

3 . There is precedent for the proposition that any errors such as those claimed by the appellant relating to voir dire examination are waived by his acceptance of the jury. State v. Cross, 72 Conn. 722, 46 A. 148 (1900); People v. Rose, 268 Mich. 529, 256 N.W. 536 (1934).

4 . In State v. Chaney, supra, 477 P.2d at 443, the Alaska court articulated the following objectives of sentencing review:

"(i) To correct the sentence which is excessive in length, having regard to the nature of the offense, the character of the offender, and the protection of the public interest;

"(ii) To facilitate the rehabilitation of the offender by affording him an opportunity to 682 P.2d — 23 assert grievances he may have regarding his sentence;

"(iii) To promote respect for law by correcting abuses of the sentencing power and by increasing the fairness of the sentencing process; and

"(iv) To promote the development and application of criteria for sentencing which are both rational and just.”