CHEYENNE – A motion filed last week in the Frank McHenry murder case is asking for an explanation for the prosecution’s claim of premeditation in its first-degree murder charge.
Cody Jerabek, defense attorney for McHenry, filed the motion for a “Bill of Particulars” on Friday. Jerabek recently took over the case from the public defender’s office.
A Bill of Particulars is an explanation of the charges brought against the defendant, according to USLegal.
Jerabek’s motion must be approved by a judge before a Bill of Particulars can be required from prosecutors.
“The current state of charging in this jurisdiction is exceptionally confusing, and I believe my client deserves the opportunity to be fully aware of the charges against him,” Jerabek said. “While a Bill of Particulars is not always appropriate in every case, and not always appropriate in every allegation of murder, the severity of the punishment and complexity of this case makes it necessary.”
According to the motion, a Bill of Particulars is “to make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial.”
Jerabek further clarified by saying the Bill of Particulars would go beyond the charging information usually filed by the Laramie County District Attorney’s Office. For this motion, Jerabek is only asking for a Bill of Particulars on the first-degree murder charge.
For example, if someone were charged with driving under the influence, and the charging information stated this person was pulled over at a traffic stop and was found to be intoxicated, a Bill of Particulars would go beyond this initial explanation. It would say the person was traveling a certain direction, on a certain street, in a specific car and breathalyzed at a certain time.
This explanation would be in the Bill of Particulars to further elaborate the charges.
For the first-degree murder charge, the prosecution must prove McHenry acted with premeditation in the murder of 61-year-old Joseph “Stevie” Torolito.
Wyoming law states “whoever purposely and with premeditated malice ... kills any human being is guilty of murder in the first degree.”
Premeditation is also defined as “thinking over, deliberating upon, weighing in the mind beforehand, resulting in a deliberate intention to kill, which constitutes the killing murder in the first degree,” according to case law and the motion.
McHenry asserted his right to an attorney from the moment he was interviewed by law enforcement, the motion said. Therefore, the state will have to use outside facts to prove premeditation and malice for the first-degree charge.
“Based on the evidence provided … the defendant is incapable of effectively formulating a defense or preparing against this essential element because it is unclear what the state asserts to be indicative of premeditation or malice,” the motion states.
The motion also uses the recent case of Andrew Weaver as an example. Weaver is accused of murdering two people and shooting two 14-year-old boys on Sept. 16. In Weaver’s probable cause affidavit, witnesses told officers Weaver had talked about how he wanted to know what it was like to kill someone before the shooting.
Yet Weaver is being charged with second-degree murder for the crimes, which alleges Weaver didn’t act with premeditation or malice.
“This further emphasizes the need for clarification of the charges, and what the state perceives to be facts and circumstances that prove or act as an essential element,” the motion said.
When asked if he would have filed the motion if Weaver hadn’t been charged with second-degree murder, Jerabek said he was considering it beforehand, but Weaver was the tipping point.
“(The) Weaver case kind of really set it over the top for me,” he said. “(It) further muddied the waters into what this element (premeditation) means to the prosecution.”
McHenry is accused of stealing a Smith and Wesson M&P15 rifle from his relative’s house last year before going outside and shooting Kristen Smith in the hip, and then fatally shooting Torolito.
McHenry pleaded not guilty due to mental illness to charges of first-degree murder, attempted first-degree murder, two counts of aggravated burglary-deadly weapon, four counts of interference with a peace officer-injury and misdemeanor property destruction.
But Jerabek said in open court that his client intends to change his plea to simply “not guilty.”
An evaluator with the Wyoming State Hospital determined he was mentally competent to stand trial and assist in his own defense.
He also is being charged with aggravated assault and battery for allegedly attacking another inmate while in jail.