*1
MONTANA,
Respondent,
STATE OF
Plaintiff
v.
Appellant.
GRATZER, Defendant
KARL ERIC
No. 83-157.
Dec.
1983.
Submitted
April
Decided
1984.
Michael J. Sherwood Mis- (argued) Englund, and Karl soula, for appellant. defendant and Greely, Atty. Gen., Helena,
Mike McCarthy, Robert County Atty., Richardson, Fleming Dep- Patrick and Ross uty County Attys. Butte, (argued), plaintiff for respondent.
MR. Opinion JUSTICE SHEEHY delivered the Court.
Karl Eric appeals Gratzer from his conviction of deliberate homicide in Court, District, the District Second Judicial Silver Bow County. He charged shooting death of Tim April 14, 1982, Hull on parking which occurred in a lot a dormitory College near Sci- the Montana of Mineral (Montana Tech). ence and Technology Gratzer, Butte, children, lived born the last of eight with his stepfather. mother For of the time be- most shooting, engaged tween 1979 and the date of the he was an intense woman we personal relationship young *4 identify as P.L. P.L. appears It that he and were almost inseparable years from until 1981- high their school late 1982, when P.L. Montana was enrolled as a student at January Tech. Gratzer in enrolled there 1982. however, the rela- аppears From December of it at deteriorating, or least that tionship the two was between suspected Tim Hull. Gratzer P.L. was also attracted to he Tim Hull than was more was on between P.L. and going on P.L., confirmed being suspicions his were told and at her house together occasions when he discovered the two inor other locations. P.L.’s vehicle 14, 1982, found night April
On he the (she in her own home resided parking lot near the dorm Butte). letting air of two tires out He was observed to find out whom she was purpose on her vehicle. His was who persons visiting dorm. He was chased two hasty He made letting saw him the air out of tires. escape. good retreat to his car and made his Gratzer, however, lot in another parking back to the came pistol. From car, magnum him a taking this time .357 car, his he observed point parked he vantage where had of her dormitory, P.L. brush some snow off come out of into the went back vehicle and discover the flat tires. She way spot dormitory. his made his got He out of car and of thе the west end pine between some trees located at oc- hiding place by in his parking lot. He was observed P.L. Tim and cupants nearby. of a A short time later house dormitory hand-in- Hull came out of the Montana Tech they ap- They walked toward P.L.’s car. When hand. lot, parking proached pine trees at the west end confrontation stepped hiding place Gratzer out his and a hand, struggled Hull in his gun ensued. Gratzer had his While attempting with him to flee. breaking before free at the retreating, pistol Hull fired his twice was Gratzer in the back of man. two shots struck Hull fleeing One he inca- his so that leg, shattering the left femur bone lying Hull over where pacitated. Gratzer then walked point blank pistol at and fired two more shots from his of his left side range. Tim Hull These bullets struck causing head his instantaneous death. to his his and went
Gratzer then walked back to vehicle thought he There his mother home. he informed *5 Following police had shot someone. he that drove to gun, keys himself, station where he turned his his car police. over to the charged aggravated
Gratzer was in District Court with as- sault and deliberate The homicide. District Court ordered Springs Hospital that be examined at Warm State for an evaluation in whether he fit order to determine for the proceedings. attorney purpose criminal His filed a notice rely to also, on mental disease or The defect. District Court request required at State, of the that the Defendant be by personnel Springs Hospital examined at Warm as night to the mental state of the defendant on the question. psychiatrists prosecution
The for the defense and the tes- tified at the trial. Each testified Gratzer was under during night shooting. mental stress Dr. Xantho- poulos felt that the mental stress was so to not extreme as statutory language mitigated invoke the homi- deliberate Dr. cide. Stratford felt the stress was extreme. guilty aggravated returned a verdict on guilty
assault and of deliberate homicide. He sentenced by imprisonment, the District Court life dan- to labeled a gerous purposes parole, оffender for and declared to be ineligible parole, years for and further to for sentenced ten the use of a firearm in the commission of the offense. His appeal is now before us.
I. principle The first and issue raised Gratzer that the respect District Court committed instructional to error with mitigated give refusing deliberate in- homicide to two structions offered Gratzer. Gratzer contends respect improperly District Court instructed proof relating mitigated to burden of deliberate homi- duty prove beyond argues cide. He that the State has a mitigated reasonable as deliberate doubt an element of acting homicide Gratzer was not under the influence extreme mental emotional stress. any not entitled
The State contends that Gratzer was on homicide under instructions any event, In- that, under court’s facts this case but 10A, No. error occurred. struction no instructional adoption new Code With the Montana Criminal legislature into homicide 1973, our divided criminal state negligent. types, deliberаte, deliberate, and three 45-5-101, Section MCA. pur- if it is committed
Criminal homicide is deliberate *6 mitigated posely knowingly. 45-5-102, It or Section MCA. is be if would otherwise deliberate deliberate homicide what influence of extreme homicide is “committed under the ex- for which there is reasonable mental or emotional stress planation 45-5-103, or Section MCA. excuse.” upon by parties in this case to deter-
We are called proof of mine who has the burden and what is burden or emotional to establish the influence of extreme mental stress in a deliberate homicide case. not fix the
The District determined burden Court party, on either and instead instructed respect mitigated as follows: deliberate homicide Guilty lesser of-
“In order to find the Defendant of the homicide, must the State fense prove following propositions: causing performed
“First, defendant the acts that the Hull, of Tim death pur- so,
“Second, he acted when the Defendant did posely knowingly; or you
“Additionally, the Defend- must find that at the time Timothy acting Hull, influence under the ant killed he was there for which of extreme or emotional stress mental explanation excuse. The reasonableness reasonable or explanation from the or excuse shall be determined such person viewpoint Defendant’s of a reasonable situation. you your of all the evidence
“If from find consideration propositions proved that each of the first two has been be- yond a reasonable doubt Defend- State and Timothy acting ant, Hull, at the time he killed under the influence of extreme mental or stress for emotional you explanation which excuse, there is reasonable or then Guilty should find the Defendant the lesser offense Mitigated Deliberate Homicide. you acting
“However, if find that the Defendant under the influence of extreme mental or emotional stress explanation for excuse, which there is a reasonable then you Guilty should find the Defendant of Deliberate Homicide. you your
“If find from all consideration of the evidence propositions proven that either of the first two has not been beyond you doubt, the State then must find reasonable Guilty the Defendant Not of Deliberate Homicide.” considering propriety foregoing Before instruc- tion, we must first treat the contention the State that court should not have instructed the this case on mitigated deliberate homicide. It is the contention State’s nothing that the facts of this case indicate but deliberate mitigation. showing homicide and there was no Mitigated deliberate homicide is a lesser-included (Mont. offense of deliberate State v. Bashor homicide. *7 1980), St.Rep. 470, 487, 1098, 1118; 614 P.2d 37 State v. (1977), Baugh 459-60, 456, 779, 174 Mont. 571 P.2d 781. duty jury The District Court therefore had a to instruct the mitigated on deliberate homicide if there was evidence to justify the In submission of the lesser this crime. case testimony of Dr. Stratford to the effect was that Gratzer acting under extreme mental or emotional stress created a require fact issue which was to sufficient the District Court to submit the lesser crime to the for its consideration. The State also contends that Stratfоrd’s evidence weight incredible, but of is for course evidence jury. duty prosecution It is the in a criminal the State 316 every element of prove beyond a reasonable doubt
to
the influence
mean therefore that
charged.
crime
Does this
the State
element
that
of mental or emotional stress
an
de-
must
to sustain a conviction
prove
order
hold not.
crime? We
liberate
as a lesser-included
homicide
in the Mon-
statutory
defining homicide
Under the
scheme
1973,
knowingly
and
purposely
all
tana Criminal Code
unless
committed
are deliberate
committed
homicides
or emotional stress.
under the influence of extreme mental
homicide, the
In
the offense of
defining
an
for
legislature did not
additional
element
create
stress.
It
or emotional
prove relating
State to
to mental
mitigation that would reduce
simply stated
kind of
deliberate homicide.
a mitigated
deliberate homicide to
defin-
true under the statutes
opposite situation was
the 1973
preceded
ing
degree
first and sеcond
murder
94-2503,
law, Section
R.C.M.
Criminal
Under former
Code.
willful,
1947,
de-
any kind
degree
defined first
murder as
commit-
liberate,
which was
premeditated killing,
or one
provided
The same section
perpetration
ted in
crime.
In
degree.
of the second
that all other kinds of murder were
statute,
decided that
the former
this Court
interpreting
had
made
by a
been
proof
when
of the homicide
defendant
“the
State,
presumed
be murder
by the
the crime was
544,
(1929),
281
State v. Chavez
85 Mont.
degree.”
second
436,
288;
(1919),
178 P.
v. Kuum
Mont.
State
352;
P.
(1900),
But
v.
The effect of the for concepts radically legal our change Montana was of a on Formerly, presumption proof of homicide. committed, crime had been the lesser killing the evidence duty going forward had the the State
317 beyond had been com- greater a reasonable doubt killing mitted. Now the effect of is that legal proof committed, greater crime has been homi- of deliberate cide, unless the or mitigation, justifi- evidence shows excuse cation. are by We fortified this Section 45-5- conclusion 112, MCA, which provides: mental state. homicide, In a deliberate
“Inference of or knowledge purpose may be inferred the fact from the accused committed homicide no circumstances mitigation, excuse, justification appear.” or construe, 45-5-112, Gratzer,
We do not as does Section supra, require State in a deliberate homicide case to negate mitigation beyond a reasonable before the doubt 45-5-112, may infer purpose knowledge. or Section MCA, imposes upon no greater burdens the State than which upon 45-5-102, MCA, fall it under Section the statute defining the elements of deliberate regard homicide. We Section 45-5-112 simply as providing a statute for a legal by inference in a deliberate case no hоmicide when circumstances mitigation, justification appear. excuse or That plain is the language engraft the statute and we upon no case, it burden for either party a homicide since itself statute is silent.
This leads us to the we im- consideration whether should pose upon the defendant a deliberate homicide charge, specific statute, absent a by proving direction the burden of mitigation so charge as to reduce the deliber- ate homicide. The attorney generаl county state and the at- torney are point, understandably divided on this so. mitigation answer revolves around re- whether quired to reduce deliberate homicide to deliber- ate homicide is an affirmative defense.
If defense, mitigation such is an affirmative then it power within the State to allocate the burden evidence, to the preponderance defendant Patterson v. New York perhaps a lesser burden. v. (1977), 2319, 281; U.S. 432 97 S.Ct. 53 L.Ed.2d (Mont. Sorenson 1980), St.Rep. P.2d 1834. *9 required prove is the nonexistence “not to exculpatory every it as an willing recognize fact which to culpabil- affecting degree or mitigating circumstance Sorenson, 619 P.2d ity severity punishment.” 1189, St.Rep. at 37 at 1838. proceedings in criminal
Particular affirmative defenses in Section 46-15- recognized our statutes are contained (2)(a) (formerly self- including use of force “justifiable defense), entrapment, compulsion, or the defense alibi of mind that particular did have a state defendant not A charged.” is an element of the offense defendant еssential defenses must intending to raise one of those enumerated prevent surprise Sec give prosecutor to to under notice any as an tion is not listed statute Mitigation 46-15-301. affirmative defense. sufficient to reduce deliberate mitigation
We hold that not of itself an homicide to homicide is mitigated deliberate defense, require affirmative which would burden prin placed There are two proof upon to be the defendant. First, defenses affirmative ciple reasons to so hold. 46-15-301, MCA, complete constitute de listed in Section an af proves If charged. fenses to the crimes the defendant acquittal. This is not to firmative defense is entitled an homi reducing deliberate mitigation true in the case of Mitigation homicide. charge mitigated cide to a charge to simply reducing the deliberate homicide involves crime. lesser-included or emotional Second, mental the influence of extreme excuse, explanation or stress for there is reasonable which deliber- which reduces a deliberate homicide affirmative defense as an may ate homicide not be classified 46-15-301(2)(a), MCA, “a under the definition Section element is an essential particular state of mind that the of- If an essential element charged.” offense it were prove duty of the State be the charged, fense it would 364, Winship (1970), In Re 397 U.S. mitigation. such already 1068, 1073, 90 S.Ct. have 375. We L.Ed.2d mitigating stated that are an element circumstances prove. which the State has mental or Therefore extreme mitigation emоtional stress which does not fall constitutes 46-15-301(2)(a),setting within the definition out of Section affirmative defenses. mitigating therefore circum
We hold that since the stances which de reduce deliberate homicide to liberate homicide are not an element of the reduced crime prove, which the nor State must an affirmative defense prove, party which the defendant must neither has the bur mitigating although circumstances, den of toas such party may either assume such burden. undoubtedly
This was the view the District Court promulgated 10A, when it its Instruction No. which we *10 reading have set forth in full above. A in careful of the placed struction will disclose that the no bur District Court party proof mitigating den on either circumstances, for of leaving jury to and, it the to examine the if miti evidence gating appeared killing purposely circumstances in a knowingly jury defendant, committed the the could then guilty find the defendant of deliberate homicide. jury properly We therefore determine the in that was structed as crime, to the еlements of the lesser-included contrary homicide, to Gratzer’s conten tions here. argues connection,
In this the Gratzer that District jury Court should have instructed the with two of Gratzer’s proposed instructions, instructions. One of the No. prove would have instructed the that the must State beyond charge of reasonable doubt that to the de sustain acting homicide, liberate the defendant was under the of influence extreme State mental or emotional stress. The duty, negate said, is under no as have influence of we to prove extreme or mental emotional in order delib stress to prove beyond erate homicide. The State need a reasonable only required doubt, Sec- the elements of the crime under 45-5-102, MCA, homicide. tion which defines deliberate instruction, following The second contained No. language:
"... is
“Additionally, you find there evidence must that presented by the a reasonable doubt as Defendant raise acting has that he was not proved whether the State stress or emotionаl under influence extreme mental The explanation for is or excuse. which there reasonable deter- explanation or excuse shall be reasonableness of such in the de- viewpoint person mined from a reasonable fendant’s situation.
" ..." dubious, clarity and was The instruction offered was re- really only way of the State saying another or quired to mental emotional negate the absence severe the two offered The properly stress. District Court refused instructions. entitled to Instruction
Gratzer also contends v. Crean holding Court No. 18 of this under Crean, jury was in (1911), 47, 114 In 43 Mont. P. 603. had the burden structed the court that the defendant upon charge or excuse proving mitigation, justification, Crean further instructed murder. de by the necessary to be introduced amount evidence must support mitigation, justification excuse fendant upon jury, minds of the be least sufficient to create at case, a reasonable consideration all evidence *11 Crean, however, For application to this case. has no doubt. 9282, 1947, repealed, placed the now mer Section R.C.M. upon the. de mitigation of proving burden of circumstances Crean, justifi of defendant was In the defense the fendant. quantum the of This held that killing. cation for the Court justification support proof imposed upon the defendant raise a made would as whole case only upon “was such the Crean, 55, 114 43 at Mont. guilt.” of his reasonable doubt if a in Crean was that holding P. 606. The effect of the at
321 proof justification doubt defendant’s raised a rеasonable guilt charge murder, in his to the he entitled to an was acquittal. 18 did not com- Gratzer’s offered Instruction No. prehend holding Crean, in and would have misdirected jury. justification if Crean, In the defendant’s guilt, raised a reasonable doubt to his he was entitled to as acquittal; committing case, an this if Gratzer’s actions killing were the of his extreme mental or emo- result excuse, tional stress for which he there was reasonable acquittal, be would not entitled to but on an to a conviction charge mitigated Crean, reduced deliberate homicide. support therefore, does not Gratzer’s contention that proffered. entitled the instructions
II. photographs Another issue raised Gratzer is that two improperly were introduced and received evidence court and that bullets were into evidence introduced improperly. photographs, depicted
Gratzer contends that the which bloody pool splashed upon parked and blood automobile prejudicial only prosеcu- him, were and that one passing tion’s witnesses made a reference to the photographs.
Photographs fairly they if are admissible ac curately represent relevant State v. Austad evidence. (Mont. 1982), [197 70,] 1373, 1380, Mont. 641 P.2d St.Rep. 356, 362. admissible, Pictures the crime are scene they in if court, determination of the its aid (Mont. fact-finding process. 1983), [203 State v. Woods St.Rep. 401,] Mont. 662 P.2d 533.
Gratzer also contends that the chain of control of the bul- comply lets established in this case so as to with (Mont. 1981), the rule v. Close 623 P.2d St.Rep. identify particular 177, that the ex- State must charge hibit as relevant to the criminal and must show prima tampering facie that no alteration exhibit *12 has occurred. 1983) (Mont. [202 Mont. held in State v. Wells
We only St.Rep. the State need 337,] 658 P.2d that prima showing no substan a there has been make facie that showing change evidence, tial and that after such the why the the to defendant to show burden shifts the Here, evidence indi evidence should not be admitted. crime lab cates that bullets were forwarded to state oratоry container, were received the state a sealed and laboratory sealed. The chain crime with the container still possible complete, of control is is no evidence there tampering here. photographs bullets were
We therefore hold that the properly admitted.
III. improper for the it was Gratzer further contends psychiatrist county attorney, who on examination by they appointed bring testified, had been out that counsel made Gratzer’s court to examine the defendant. timely objection questions. to the may provides MCA, 46-14-213,
Section designated psychiatrist informed was be that the county attorney’s The court to examine the defendant. directly objections questions statute, and the violated that have been sustained. of the defense counsel should psy appear, however, defense that when the It does produced being its examined before the State chiatrist was inadvertently, psychiatrist, perhaps in two or he, mentioned acting order. under court three instances that purpose 46-14-213, of Sеction now since the contends court-appointed impression MCA, is to avoid the “badge psychiatrist truth,” it has been clothed with proper answers to allow the Court for the District positions equalize psychiatrist in order to the State’s jury. psychiatrists mind in the questions propounding in viola- We do not condone the especially statutes, tion of when beforehand the District purpose, Court had not been to the but in this case alerted questions we hold the be allowance of answers such harmless error.
IV. *13 Our conclusion is that the conviction of the defendant of deliberate homicide be should affirmed. respectfully
MR. JUSTICE dissents as MORRISON follows: single regarding charge against
The issue at Karl trial the Gratzer was whether he should be convicted of deliberate mitigated or homicide deliberate homicide. Deliberate causing acting is homicide the death of another while purpose knowledge or unless the defendant so acts while under the influence of extreme mental or emotional stress. рurposefully knowingly, If defendant acted or but while under severe stress, mental or emotional then defendant is guilty mitigated of deliberate homicide rather than deliber- ate homicide. proving purposely
The burden that defendant acted knowingly prove and is on the State and the State must beyond question this mental state a reasonable doubt. The proving here is who has the burden the existence or ab- sence of severe mental or emotional stress. opinion majority party
The bur- finds that neither hаs the jury just den of but the makes a determination with legal jury impossible. no This, course, standards. If the presented by prosecution by finds the evidence evenly prevail? balanced, defense be then who would The law in Montana is clear has since the Su- been preme Crean, Court of State v. Montana decided Mont. (1911). 47, 114 P. case, In in- the Crean the trial court jury structed the as follows: necessary
“As to the amount of evidence
to be introduced
mitigate,
justify
excuse,
the defendant
in
so as
law to
homicide,
it must
аt least suffi-
you
are instructed
be
jury, upon
in
a considera-
cient
create
the minds
case,
tion
in
a reasonable doubt.”
of all
the evidence
Supreme Court.
The
affirmed
above instruction was
Under the the defendant mental or emotional stress forward with evidence severe Thereafter, the State sufficient to raise a reasonable doubt. beyond reasonable doubt proving has burden of or emotional stress. defendant acted absent severe mental If mental or exclude sеvere the State fails its burden to stress, or knowl- proving purpose emotional but succeeds death, jury convict of edge causing then the must homicide. rather than deliberate deliberate homicide properly instruct The failed to trial court this case statutory defini- jury. set forth simply The trial court instructing without tion of homicide was left proof. about the burden case, Defendant, psychiatric speculate. introduced this position that defendant testimony supporting the defense weigh- In operаted stress. under severe mental or emotional *14 in- had an necessarily have this evidence the must ing evidence, The as respect proof. struction with burden doubt law, to raise reasonable matter of was sufficient beyond a reasona- mitigation and the State had to exclude ble doubt. bur- the State its majority opinion
The which relieves den, effect, legal no standard leaves whatever, process rights. defendant’s due violates the will court federal apparent error so that a review surely result reversal. SHEA, dissenting:
MR. JUSTICE Morrison. of Mr. Justice foregoing I concur dissent