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Second-degree murder verdict reached in hatchet attack

Nov 22, 2015 By Eric Blom, Staff Writer

Twelve jurors found Terry L. Schmuck guilty of attempted second-degree murder on Friday after a week-long trial in Lander District Court.

Schmuck avoided the minimum life sentence that would have come with a conviction on the crime with which he was charged: attempted first-degree murder.

Arguments focused on the Riv-erton man's state of mind during the events in question, as both sides agreed Schmuck hit his estranged wife in the head with a hatchet on May 28.

Factors such as intent, forethought and malice distinguish attempted second-degree murder from the related crimes of attempted first-degree murder and a-ttempted voluntary manslaughter.

Jurors were instructed on the differences and told they could find Schmuck guilty of any of the three. Attempted first-degree and attempted second-degree murder are different in that the first requires the perpetrator act with premeditation.

Attorneys focused on the subtleties because a conviction of one or another would yield a difference of years, if not decades, in Schmuck's ultimate sentence.

Schmuck's attorney, Dan Caldwell, argued his client's mentality at the time of the alleged attack did not include the factors necessary for him to be guilty of any of the crimes the jury was considering.

Caldwell argued Schmuck's taking the hatchet to his wife Cindy Schmuck's home did not indicate he planned to kill her with it because Terry Schmuck knew his wife carried a pistol.

If Schmuck did have such a plan beforehand, that fact would support a first-degree murder conviction.

"Either my client was really, really, really, really pissed, or he's dumber than a box of rocks ... You don't take a hatchet to a gun fight," Caldwell said.

Schmuck struck his wife out of a "fight or flight" instinct, the lawyer said.

Schmuck broke through the front door of his wife's home hatchet in hand on May 28 and went to her bedroom, where he expected her to be sitting at her computer, Caldwell said. Instead, she was standing in a corner of her bedrooms, two hands on a revolver, and pulled the trigger two or three times as soon as he entered the room. The gun wasn't loaded, however.

"She had four more cylinders, and Mr. Schmuck had absolutely no idea what was in those cylinders," Caldwell said.

His client reacted by pushing the gun down with his left hand and punching his right hand forward. Schmuck's right hand was holding a hatchet, grasping it by the handle just below the head, and the weapon's blade struck his wife's head.

"Was it hitting her in the head? Yes, he did that," Caldwell said. "The question is was it with premeditated malice."

Fremont County Deputy Attorney Ember Oakley, in her closing statement, argued it was. Those factors make an act attempted first-degree murder and not a lesser crime, she said.

To make her point, she reminded jurors of the video they watched of an interview Schmuck gave to Fremont County Sheriff's Office Det. Eric Granlund.

"He said the words, 'I tried to kill her with the hatchet,'" Oakley said.

Schmuck also said he decided to use the hatchet when he left his house, located about 20 miles from his wife's, Oakley.

"So we know what his intent was from his own words," Oakley said.

She reminded jurors that Schmuck cut and tore at the phone lines outside his wife's home before breaking in and attacking the woman. Oakley cast a different light on the fact that Schmuck heard his wife's revolver click, indicating it was unloaded, before he struck her.

"Terry Schmuck knew she was defenseless," Oakley said.

Cindy Schmuck suffered a 3-inch-wide wound that night that appeared to start near the top of the right side of her head and travel down her skull several inches. Terry Schmuck must have held the hatchet by the bottom of the handle and swung it overhand to cause such a blow, Oakley said. He must not have thrust it forward as Schmuck contended, she said.

"The wound itself shows Mr. Schmuck's version of events cannot be true," Oakley said.

Ultimately, jurors showed they agreed somewhat with Caldwell as they convicted Schmuck of attempted second-degree murder. The crime is punishable by 20 years to life in prison.

Sentencing is to take place at a later hearing.

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