State v. DanielsState v. Daniels
¶1 Defendant Larry B. Daniels (Daniels) appeals from the conviction and judgment for deliberate homicide entered following jury trial in the Twenty-Second Judicial District Court, Carbon County. In defense, Daniels asserted justifiable use of force. We affirm and restate the issues on appeal as follows:
¶2 1. Did the District Court err in its rulings regarding the
¶3 2. Did the District Court err by refusing Daniels’ proposed jury instructions on justifiable use of force in defense of an occupied structure and burglary as a forcible felony?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 In April 2009, the Daniels family rented a ten-acre property in Fromberg, Montana. Daniels, age 66, Buddy (Daniels’ adult son, age 43), Logan (Daniels’ son, age 14), and Hagen (Buddy‘s son, age 13), lived together on the property. Daniels and Logan had recently moved to Montana from California, and the property was rented by Daniels so that the Daniels family could live together. Two residential structures were on the property, including a north house consisting of an apartment and attached shop, and the main house located to the south. Buddy, Logan, and Hagen lived in the main house, while Daniels resided in the apartment in the north house.
¶5 Daniels and Buddy had plans to develop the property, and on the morning of May 21, 2009, they went to Billings to purchase lumber to build corrals. Daniels and Buddy drank beer while driving home, stopping to buy food and supplies for Logan and Hagen. They stopped at a bar and drank beer and liquor with friends until around 8:00 p.m. According to the bartender, everyone “seemed to be getting along great.”
¶6 Later, Daniels, Buddy, Logan and Hagen gathered at the main house for dinner. Logan testified that Daniels and Buddy were intoxicated. An argument ensued during dinner over Daniels incorrectly remembering Logan‘s birthday and not being “a good grandpa” to Hagen. The argument escalated, with Buddy asking Daniels to leave the main house, and Daniels refusing. Buddy broke two chairs and Daniels threw a beer at Buddy. Buddy then struck Daniels and wrestled him to the ground, pinning him there and telling him to leave. Buddy then rolled or drug Daniels down the stairs. Daniels testified he did not remember being struck, only that he ended up at the bottom of the stairs. The argument continued as Daniels and Buddy moved into the mud room. Hagen testified “it kind of toned down a little bit” and that neither person seemed to be hurt. Daniels headed to his house, with Buddy following. Hagen testified that he and Logan decided to “separate” Daniels and Buddy, and the boys started to go towards Daniels’ house. Daniels went into his house and was the
¶7 Daniels testified that he “went straight to the refrigerator and grabbed a beer,” and went upstairs. He said he was quite upset, took a .22 pistol out of a holster and sat on his bed “thinking about shooting myself.” Daniels testified he heard the front door open and Buddy‘s angry voice. Buddy came up the stairs and verbally challenged Daniels. Daniels testified that when Buddy came up the stairs, Daniels said, “No more. Go home. It‘s over. Go home. Get out of here.” Daniels told police “[b]y that time I‘m around on this side of my bed at my nightstand and my pistol lays right there. I picked up my pistol and I said Bud, just leave and leave me alone. He said fuck you and your pistol. I‘ll shove that mother fucker up your ass and he come toward me, pop, pop.” Daniels testified Buddy “straight-arm[ed] me in the chest,” and the pistol went in the air and he pulled the trigger “to protect myself.” Daniels told police that he fired three shots ten feet from Buddy. He told police his intent was to “[g]et away from him” and “to stop him,” and that “[a]ny time you pick up a gun and you pop a cap, your intent is to kill.”
¶8 After the shooting, Daniels went downstairs. Logan and Hagen came through the doorway and Daniels told them to leave. Logan and Hagen testified that Daniels said that he had just shot and killed Buddy. Daniels called 911, telling the dispatcher: “He‘s wantin’ to beat me up all the time and he owes me a ton of money and arguin’ about this and one thing another. He ripped my shirt off of me and he shoved me down the stairs one thing another and I ... I come over to my little house and he followed me up here gonna kick my ass one thing another and I said leave me alone. I can‘t out .. I can‘t beat you. I‘m too old. I can‘t whip him anymore. I picked up my gun, he said oh fuck you. What ya gonna do with that gun you know and blah, blah and I said I ... I ain‘t gonna do it anymore. I‘m tired of it. Then I pulled the trigger. I‘m guilty 100%.” Daniels testified he remembered telling the 911 dispatcher he was “one hundred percent guilty,” and meant that “I had shot my son. I knew that I had done this. I was not looking for any kind of defense at the time. I was not looking for justification. I was just-yes, I did it.” A trooper who arrived at the scene testified that Daniels’ demeanor struck him as almost jovial and upbeat, and Daniels “asked if [the trooper] could get him a beer because it might be the last one that he would ever have.” Six hours after the shooting Daniels’ blood alcohol content was 0.08. Daniels was arrested at the scene.
¶9 Daniels had an abrasion on his left elbow, and no other injuries.
¶10 The State filed an Information charging Daniels with deliberate homicide in violation of
¶11 A district court has broad discretion when determining the relevance and admissibility of evidence. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. Generally, we review evidentiary rulings for an abuse of discretion. State v. Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT 263, ¶ 31, 358 Mont. 325, 246 P.3d 415. A district court abuses its discretion if it “acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Derbyshire, ¶ 19. “In exercising its discretion, however, the trial court is bound by the Rules of Evidence or applicable statutes. Thus, to the extent the court‘s ruling is based on an interpretation of an evidentiary rule or statute, our review is de novo.” Derbyshire, ¶ 19; see also Dist. Ct. of the Eighteenth Jud. Dist., ¶ 31. Our review is plenary for questions regarding constitutional law. State v. Jackson, 2009 MT 427, ¶ 50, 354 Mont. 63, 221 P.3d 1213.
DISCUSSION
¶12 1. Did the District Court err in its rulings regarding the admissibility of character evidence of the victim in violation of the Rules of Evidence and Daniels’ constitutional rights?
A. 2009 Legislative Changes
¶13 The central theme of Daniels’ arguments is that the District Court erred by making rulings in violation of legislation enacted by the 2009 Legislature. HB 228 proposed an act “preserving and clarifying laws relating to the right of self-defense and the right to bear arms.” Laws of Montana, 2009, ch. 332, at 2271 (emphasis omitted). Under prior law, the State bore the burden of proving the elements of the charged offense beyond a reasonable doubt, but it did not need to prove “the absence of justification.” State v. Henson, 2010 MT 136, ¶ 33, 356 Mont. 458, 235 P.3d 1274 (citing State v. Longstreth, 1999 MT 204, ¶ 22, 295 Mont. 457, 984 P.2d 157; additional citation omitted). In Longstreth, we explained that “as an affirmative defense, justifiable use of force requires the defendant to produce sufficient evidence on the issue to raise a reasonable doubt of his guilt and that the State‘s burden is to prove beyond a reasonable doubt the elements of the offense charged, which does not include the absence of justification.” Longstreth, ¶ 22 (emphasis added).
¶14 The sponsor of HB 228, Representative Kerns, indicated to the House Judiciary Committee that the bill “shifts the burden to the
Justifiable use of force-burden of proof. In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant‘s actions were not justified.
See also Laws of Montana, 2009, ch. 332, § 9, at 2275. The enactment of HB 228 effectively abrogated Longstreth, Henson and other cases to the extent they held that the burden of proof for the defense of justifiable use of force (JUOF) was on the defendant.2
¶15 Daniels further argues that the passage of HB 228 “reversed the long-held rule in Montana that justifiable use of force” is an affirmative defense, apparently because defendants have historically been required to prove affirmative defenses. See State v. Gratzer, 209 Mont. 308, 318, 682 P.2d 141, 146 (1984). However, this argument overstates the effect of the legislation.
¶16 We also disagree with Daniels’ implication that by providing pre-trial notice of his intention to rely on JUOF as a defense, he satisfied his burden under
B. The District Court‘s evidentiary rulings
¶17 The thrust of Daniels’ overlapping arguments is that the District Court erred in its rulings regarding the foundation required for the introduction of character evidence about Buddy. Before trial, the State filed a motion in limine requesting the court to “issue an order prohibiting the Defendant at trial from referencing or soliciting testimony regarding the victim‘s alleged character for violence, including specific acts of violence, until a proper foundation is laid by the Defendant ....” At hearing, the court noted the statement in State v. Montgomery, 2005 MT 120, ¶ 20, 327 Mont. 138, 112 P.3d 1014, that
¶18 Relying on Montgomery, the court made an initial ruling on the State‘s motion:
[F]or evidence of the victim‘s character and propensity for violence to be admissible the evidence first must be related to the issue of the reasonableness of force used by the defendant. And at this point, the Court‘s assuming that based on the defendant‘s obvious indications that justifiable use of force is a defense in this case.
Secondly, the defendant must establish his knowledge of the violent nature of the alleged victim in order for that evidence to be admissible.
I will reserve how that must be established, but just for general guidance, it would seem that without the defendant‘s testimony in that regard, relative to what his understanding was, it may be difficult to show that. But I‘m keeping an open mind.
And then finally, the defendant must show that this knowledge motivated his own level of force....
So if the defendant fails to make that showing, the evidence is irrelevant and inadmissible.
During trial, prior to the State calling Hagen as a witness, Daniels indicated Hagen had knowledge of a previous act of violence by Buddy that Daniels wanted to inquire into on cross-examination. The court said it would disallow cross “until there‘s some foundation laid for that pursuant to Montgomery and other cases. I thought about this previously, but I think the defendant is going to have to testify.” Citing State v. Cartwright, 200 Mont. 91, 650 P.2d 758 (1982) and Logan, the court concluded “I‘m not going to allow it until that foundation is laid.” However, during defense cross-examination, Hagen testified that Buddy had “[a] little bit” of a reputation for fighting, without objection
¶19 During Logan‘s testimony, the court sustained the State‘s objection to a defense question asking about Buddy‘s reputation “for being a fighter.” In the chambers conference which followed, defense counsel indicated “I did not interpret your previous ruling to go to reputation,” and the State argued “I believe that reputation for violence only comes in ... once the defendant testifies and he says that he relied upon the defendant‘s reputation for violence and he acted upon that.” The court responded “it seems to me to be the appropriate way to go.” Thereafter, questioning resumed, but no reference was made to Buddy‘s reputation for violence.4
¶20 Thereafter, Daniels took the stand, and defense counsel asked: “Do you know of any other instances in the past of Bud being violent to you?” The State objected and, at the ensuing chambers conference, the court stated that the State‘s objection would be sustained because the level of testimony so far was “insufficient foundation that what was going on in his mind was that he was recalling other specific instances of violence committed by this victim.” Daniels’ counsel then made an offer of proof of six instances of Buddy‘s past behavior he wished to admit. The court ruled that four of the six instances were more prejudicial than probative and would be excluded under
¶21 However, when Daniels resumed testifying, he did not offer this foundation. Instead, counsel asked: “[I]n your decision to shoot Bud, did you take into consideration his propensity for violence?” Daniels answered “[y]es, I did.” Defense counsel then asked if Buddy had a reputation for “being violent,” “fighting,” “a short fuse,” and “holding grudges,” to which Daniels answered “[y]es, he does.” Defense counsel then asked:
Now when you decided to shoot, you had just come from the main house; is that correct?
[Daniels]: Correct.
[Defense counsel]: And so that was really what was on your mind, is that fair to say?
[Daniels]: The events of that evening, yes.
[Defense counsel]: So you had just gotten beat up; is that correct?
[Daniels]: Yes.
...
[Defense counsel]: Is it fair to say your main motivating force that night was what happened that night?
[Daniels]: Correct.
Immediately thereafter, the parties met with the court in chambers and the State argued that, after this testimony, the specific instances of Buddy‘s character for violence had no probative value and would only be prejudicial. Daniels agreed and indicated “we chose to go away from specific acts and go through that. We went through general reputation. That‘s what we did.” The court confirmed that reputation evidence had been received “obviously without objection, as to propensity.”
C. Analysis
i.) Rules of Evidence
¶22 Daniels challenges the District Court‘s ruling that he needed to testify in order to lay the foundation necessary for admission of Buddy‘s character evidence. He also contends the District Court abused its discretion by disallowing cross-examination of the State‘s witnesses on Buddy‘s reputation and acts of violence, asserting the rulings were premised on case law which has been overruled by HB 228.6
¶23 While HB 228 provides for shifting of the burden of proof of JUOF, the Montana Rules of Evidence still apply and “govern all proceedings in all courts in the state of Montana ...,”
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or where the character of the victim relates to the reasonableness of force used by the accused in self defense, proof may also be made of specific instances of that person‘s conduct.
¶24 Daniels first argues the court erred in disallowing defense cross-examination concerning specific instances of Buddy‘s violent conduct under
¶25 Daniels next argues that “[t]he court abused its discretion by disallowing [him] the ability, on cross-examination, to present evidence of specific acts of Buddy‘s violent past and reputation for violence” until proper foundation had been laid by Daniels’ testimony. (Emphasis omitted.) He argues the District Court erroneously relied on pre-HB 228 cases such as Logan, Cartwright, and Montgomery.
¶26 In Logan, the defendant was charged with first degree murder and had given notice of his intention to claim self-defense. Logan, 156 Mont. at 52, 473 P.2d at 835. We held that evidence of the victim‘s reputation was admissible only after the issues of self-defense and the identity of the aggressor had been raised. Logan, 156 Mont. at 64, 473 P.2d at 842. Concluding the defendant had not yet joined these issues when making his offers of proof, “no foundation then existed for the admission of this testimony” and the district court properly excluded the evidence. Logan, 156 Mont. at 65, 473 P.2d at 842. In Cartwright, the defendant challenged the district court‘s refusal of evidence of threats made by the victims and their family. Cartwright, 200 Mont. at 103, 650 P.2d at 764. The defendant did not admit to the killing, stating only that he did “not remember firing any shots.” Cartwright, 200 Mont. at 104, 650 P.2d at 765. Affirming, we held that “the accused must first lay a foundation that he acted in self defense before
¶27 In contrast to Daniels’ assertion that pre-HB 228 cases on foundation and relevance have been overruled, the discussions in Montgomery, reiterated in Deschon and Henson, as to the foundation required for admission of character evidence of the victim, remain good law. “Evidence which is not relevant is not admissible.”
¶28 The District Court did not err in requiring Daniels to lay a proper foundation, here, by testifying. Given the circumstances here, the court properly determined that Daniels’ testimony was necessary89
ii.) Constitutional arguments
¶29 Daniels argues, “[b]y requiring Larry‘s testimony to provide foundation for Buddy‘s character and reputation, the court shifted the burden of proof to Larry,” thereby violating his constitutional right to due process. Daniels argues sufficient objections exist for the review of this issue on direct appeal, but alternatively requests we apply plain error review.
¶30 Daniels filed a pre-trial motion in limine requesting the court to exclude “any argument by the prosecution that would tend to shift the burden of proof pursuant to the U.S. and Montana Constitutions and § 46-16-204, M.C.A.” (Emphasis omitted.) Prior to opening statements at trial, the District Court granted Daniels’ motion, stating: “Then there‘s some question about shifting the burden of proof. I‘m going to believe that the State isn‘t going to attempt to do so. And if you think that the State is treading on thin ice in that regard, you need to let me know. But that request is granted.” Daniels offered no objection during the trial.
¶31 Generally, “[a] defendant must make a timely objection to properly preserve an issue for appeal.” State v. Paoni, 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1040; see also
¶32 We invoke the plain error doctrine sparingly, on a case-by-case basis. State v. Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252. For plain error review of an unpreserved issue, “the appealing party must (1) show that the claimed error implicates a fundamental right and (2) ‘firmly convince’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process.” State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737 (citations omitted).
¶33 A fundamental principle of our criminal justice system is that the State prove every element of a charged offense beyond a reasonable doubt, State v. Price, 2002 MT 284, ¶ 33, 312 Mont. 458, 59 P.3d 1122 (citing In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 1072-73 (1970), and we have previously stated “[i]f the burden of proof was shifted as [the defendant] claims, there is no doubt his fundamental constitutional rights have been violated.” Price, ¶ 33. Evidentiary foundation is a related, but separate issue from determining which party bears the burden of proof. As we have discussed herein, by requiring Daniels to comply with evidentiary requirements, the District Court did not impermissibly shift the burden of proof on an element of the offense. Further, the District Court was clear at trial that the State bore the burden of proof to prove the elements of deliberate homicide as well as the absence of JUOF, and so instructed the jury. Thus, we are not “‘firmly convince[d]‘” that failure to review Daniels’ claim would result in “a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial ... or compromise the integrity of the judicial process,” and we decline to invoke the plain error doctrine. Norman, ¶ 17 (citations omitted).
¶34 Daniels raises a second constitutional argument. He asserts “[b]y compelling Larry to testify in order to lay the foundation for his justification evidence, the court violated his Fifth Amendment right to remain silent” under the
¶35 Daniels is correct that there are references to the Fifth Amendment in the record; however, they do not encompass the argument he is asserting on appeal. When the State filed its motion in limine, it requested that Daniels testify during a pre-trial hearing to lay a proper foundation for his evidence. In response, Daniels’ counsel vigorously opposed that suggestion, arguing “the most important reason that we object to this, Your Honor, is that what they‘re asking for is some look into Mr. Daniels’ mind.... Well, he has a Fifth Amendment right to keep that to himself. Whether he testifies or not at trial, is also up to him.... If he wants to give it up at trial, he can do that.” (Emphases added.) The District Court ruled:
I think the Fifth Amendment, and then the Montana constitution protections, as well, preclude the Court from requiring the defendant to take the stand at this time and make such a showing. And if he fails to make such a showing at any time, that evidence is irrelevant and inadmissible.
(Emphases added.) Thus, Daniels raised his Fifth Amendment right to remain silent during the pre-trial hearing, and prevailed there on his argument. However, he also indicated the likelihood he would testify at trial, which he did. During trial, Daniels’ counsel stated repeatedly that Daniels would testify and offered no objection to his doing so based upon the Fifth Amendment. Daniels has not asserted, either in the District Court or on appeal, that he would have declined to testify had the court not made its ruling. See State v. Kutnyak, 211 Mont. 155, 172, 685 P.2d 901, 910 (1984) (“defense counsel neither objected to the ruling[s] of the trial judge nor asserted that his client could not be compelled to testify to establish self-defense. In addition, he never stated during trial or on appeal that he would not have had his client testify if the trial judge had not made that ruling.“).
¶36 “‘It has long been the rule of this Court that on appeal we will not put a District Court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which appellant made no objection. Acquiescence in error takes away the right of objecting to it. This Court will not hold a district court in error when it has not been given an opportunity to correct itself.‘” State v. English, 2006 MT 177, ¶ 71, 333 Mont. 23, 140 P.3d 454 (citation omitted). We hold that Daniels’ constitutional argument has not been properly preserved for appeal.
¶38 “[District courts are accorded broad discretion in formulating jury instructions.” State v. Archambault, 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698. We review decisions regarding jury instructions for an abuse of discretion. State v. Cybulski, 2009 MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7. When considering if the district court has erred in its jury instructions, “we determine whether the instructions, taken as a whole, fully and fairly instruct the jury regarding the applicable law.” Archambault, ¶ 14; see also State v. DaSilva, 2011 MT 183, ¶ 15, 361 Mont. 288, 258 P.3d 419. A mistake in rendering the instructions “must prejudicially affect the defendant‘s substantial rights” to constitute reversible error. Cybulski, ¶ 34.
¶39 Daniels argues the court erred in refusing his proffered jury instruction concerning the defense of an occupied structure under
¶40
(1) A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other person‘s unlawful entry into or attack upon an occupied structure.
(2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if:
(a) the entry is made or attempted and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or
(b) the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.
¶41 We have previously explained that “an unlawful entry is a prerequisite to asserting the defense of justifiable use of force in defense of an occupied structure.” State v. Hagen, 273 Mont. 432, 440, 903 P.2d 1381, 1386 (1995); see also State v. Sorenson, 190 Mont. 155, 170, 619 P.2d 1185, 1194 (1980) (emphasis in original) (“By its terms, this section [
¶42 “A district court must only instruct the jury on those theories and issues which are supported by evidence presented at trial.” Hagen, 273 Mont. at 438, 903 P.2d at 1385. The evidence at trial indicated the following: Daniels signed the Residential Lease-Rental Agreement, but Buddy was listed on the lease under the section entitled “Additional Occupants,” denoting that he was to “occupy the premises” along with Hagen and Logan. The realtor who had facilitated the lease testified that each person was to have free use of the property, and that the lease agreement was intended to cover both homes. Hagen testified the property was considered to be a “whole family estate” and a “family home,” and he felt free to move about the whole property, often going between the two houses. Logan testified that people “[p]retty much” went where they wanted on the property, and that Buddy also went to Daniels’ house. Logan also testified that he went to Daniels’ house every day and slept there “[a] few times.” Logan testified that Daniels never knocked when entering the main house, and that he, Hagen and Buddy never knocked when entering Daniels’ house. While Daniels testified that he always locked his house when he left, he also testified that Logan had a key and the family knew that they could “jimmy the door [open] from the shop.” While Daniels argues on appeal that10
¶43 We conclude that the evidence clearly established that Buddy was not a trespasser into Daniels’ house, that he was a co-occupant, and that his entry into Daniels’ house was lawful. Because “an unlawful entry is a prerequisite to asserting the defense of justifiable use of force in defense of an occupied structure,” Hagen, 273 Mont. at 440, 903 P.2d at 1386, the District Court correctly denied Daniels’ proffered jury instruction.
¶44 Daniels also argues the District Court erred by refusing to include the definition of burglary as a forcible felony for consideration with his defense of JUOF in defense of a person. When instructing the jury on JUOF to defend a person, the District Court instructed the jury that a “forcible felony” means “any felony which involves the use or threat of physical force or violence against any individual.” See
¶45 An individual commits burglary if “he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.”
¶46 Daniels argues enough evidence existed to support the theory that Buddy unlawfully entered Daniels’ house to support including burglary in the forcible felony instruction. However, as indicated by the above discussion, the evidence established that Buddy‘s entrance into Daniels’ house was lawful for purposes of the jury instruction on JUOF in defense of an occupied structure, and we also hold that Buddy‘s entry was not unlawful for purposes of the burglary statute. “To constitute a burglary the nature of the entry must itself be a trespass.” State v. Feldt, 239 Mont. 398, 400, 781 P.2d 255, 256 (1989). Daniels concedes that “Buddy was on the lease,” and the evidence indicated that the family members had leave to be in both houses. While Buddy may have committed unlawful acts that night, he did not commit burglary. His entry was not contingent upon Daniels’ permission, and by his words, Daniels could not transform Buddy‘s lawful presence into a trespass. The District Court correctly denied Daniels’ proffered instruction on burglary as a forcible felony.
¶47 Affirmed.
CHIEF JUSTICE McGRATH, JUSTICES COTTER, WHEAT and MORRIS concur.