*1
MONTANA,
Respondent,
OF
The STATE
v.
Plaintiff
Appellant.
GRAVES,
HENRY
CHARLES
Defendant
No. 80-59.
Submitted
1980.
June
Decided
Jan.
Jeffrey W. argued, William Leaphart argued, Helena, for defendant and appellant. Gen.,
Mike Greely, Charles Atty. Graveley argued, County Atty., Helena, for and plaintiff respondent.
MR. CHIEF HASWELL delivered the of the opinion JUSTICE Court.
Defendant Charles Graves was Henry information charged by with deliberate homicide and assault. He was con- aggravated victed of mitigated deliberate homicide in the Lewis and Clark District Court and sentenced County to in the Mon- twenty years tana State Prisión with ten yеars suspended. Graves,
Defendant Charles old black man with an 20-year education, 17, 1979, eleventh grade most of spent April drinking Helena, defendant That evening beer friends in Montana. with several more to 21” where he had friends went “Club several she told him that from Idaho who he met woman drinks. There left, she had Charles Graves to After “Mister going Lucky’s.” on 1:00 a.m. to Mister at Lucky’s approximately obtained ride woman, sat the Idaho defendant approached 1979. The April with her. The to at her table and began talking down next her left she not to be with him. Graves told him that did wish woman and the woman from Idaho joined the table and sat at bar Marlow, decedent, table. at another Craig to table A later the defendant Marlow’s short while approached to defendant could ask her ask woman to dance. Before the Idaho dance, and told defendant stop Marlow up Craig jumped then told defendant The Idaho woman woman. hassling bar. and he returned his seat she did not want to dance actions, to the Graves returned Marlow’s After contemplating was so Marlow belligerent. as to Marlow inquire tablе why about black men made some comments jumped up allegedly wasn’t the women and said there could all thinking they get said, blacks. this defendant point room in Helena for At enough outside, The bartender came over and I’ll bust your jaw.” “Come when walking and told them to “Cool it.” Graves then began away back, looked it The defendant “Take outside.” someone yelled F____r said, Mother come outside.” Marlow allegedly “Hey men, Defendant then followed Marlow outside. Two white one of earlier, had whom been with sitting Marlow Craig allegedly followed Grаves outside. When Marlow reached bottom of the stairs, and was still while defendant on he and hit steps, turned defendant twice on head. Charles Graves then stabbed Craig knife, twice with a once Marlow in the abdomen and in the once chest.
Graves that he testified was “kind of drunk” to “real as opposed drunk,” that he was all three afraid white men were going jump *4 him and that he had stabbed defendant before he knew what had happened. to assist others in
After the the defendant stabbing attempted a to the hospital. Marlow into vehicle to be trаnsported loading a to be in state One witness testified the defendant appeared shock, was calm while others testified that he and very completely to Graves into Mister his get in control of himself. went Lucky’s and down Road toward Helena. began then jacket walking Airport He was two who officers were to a stopped police responding Hartman, call from Pete an Hartman told airport security guard. that a had occurred at police stabbing Mister saloon Lucky’s and that he was the black down following suspect Rоad. Airport Officer Sturm and saw the proceeded intercept suspect defendant near the walking State Publishing Building. Sturm his in vehicle front of the pulled up defendant. Officer Melton and Pete Hartman their vehicles behind pulled up the defendant. Both uniformed, officers were and police armed marked driving police cars. Hartman was also armed and a wearing uniform. Of- security it,” ficer Melton called out to the defendant “hold and Officer Sturm asked defendant if he had been involved in an at altercation Mister Graves that he Lucky’s. respondеd had. When asked if knife involved, was said and Graves turned the over to “yes” knife At this the officer noticed blood on police. point defendant’s hands him under arrest placed him his gave Miranda warnings. station, En route to the police defendant made several remarks his in the concerning involvement incident. He booked into the The city jail. same at morning 4:25 aproximately a.m., the defendant confession signed written at the county jail after once informed of his again being after rights signing statement that he knew and understood his A urine rights. sample was also at this taken time.
A was held on The defend- suppression hearing August car, ant his oral sought confession the writ- suppress police used, ten at confession taken the knife and the urine county jail, did not the stand The defendant take in the sample. suppression but submit The hearing, he did an affidavit. court refused initially affidavit; however, counsel, of defense accept urging *5 86 counsel would if defense the affidavit to accept
the court agreed motion the denying In for its admittance. furnish some precedent not the affidavit whether or not reveal did court suppress, was considered. five addi- moved to endorse of the trial the prosecution
The day were con- witnesses information. These witnesses on the tional before occurred the night which an armed robbery nected with was involved that the defendant believed The trial. prosecution armed additional robbery would file the court that they and told court reserved rul- same The day. defendant the charges against filed, addi- nor were the were ever No charges on the motion. ing witnesses called. tional stabbing Craig and admitted at trial fully testified
Graves
was convicted
was self-defense. He
defense
Marlow. His only
in the
to twenty years
and sentenced
deliberate homicide
mitigated
was also
Graves
suspended.
with ten years
Montana State Prison
offender.
designated nondangerous
on appeal:
have been presented
issues
following
The
mo-
defendant’s
erred in denying
the District Court
1. Whether
and a lack
was based on
procedures
which
police
tion to suppress,
to arrest?
cause
probable
judg-
sufficient evidence
support
there was
2. Whether
homicide?
deliberate
of mitigated
ment of cоnviction
error in
reversible
committed
Whether the District Court
3.
instruction?
self-defense
defendant’s proposed
refusing
give
conduct prejudiced
pretrial
Whether the prosecution’s
reversal?
case and justifies
defendant’s
his mo-
erred
denying
that the District Court
Defendant asserts
to man-
(1)
failed to conform
because:
police
tion to suppress
(2)
were not given
warnings
Miranda
datory
procedures;
police
(3)
was not supported
prob-
the arrest
to any questioning;
prior
of the knife
cause; (4)
relinquishment
and the
the confessions
аble
and de-
of the coercive atmosphere
as a result
were involuntary
condition;
(5)
of the
the taking
and emotional
fendant’s mental
seizure.
warrantless
an unlawful
knife constituted
Defendant first contends that the
officers failed to
police
with
contained in Montana’s
comply
mandatory provisions
“stop
statutes,
46-5-402, MCA,
and frisk”
section
46-5-401
therefore,
These statutes and
suppression
required.
similar
statutes in other
were
jurisdictions
enacted to
the rule an
codify
nounced in the landmark
and frisk”
case
v. Ohio
“stop
Terry
U.S.
S.Ct.
In our case thеre was present no and frisk”. “stop Instead the defendant was the and asked in- merely stopped by police questions to him as a a vestigatory designed witness or identify frisked, in the suspect crime. The defendant was not nor reported were the officers for a police As a searching dangerous weapon. the and frisk” statutes based consequence, on the rule an- “stop nounced in do not to this Terry situation. apply issue, next to
Turning
Miranda
it
is well
defendant’s
established that Miranda does not
until a
is “in
apply
suspect
or
of his freedom in
custody”
“deprived
any
As
significant way.”
492,
was stated in
v. Mathiason
429 U.S.
Oregon
S.Ct.
711,
“Any of a crime a suspected officer by police it, will have coercive to of aspects virtue the fact that the simply by officer is police of a law part enforcement system which may cause the ultimately to be with a suspect crime. But charged police officers are not to required administer Miranda to warnings whom everyone Nor is they question. requirement warnings to be because the imposed simply takes in the sta- questioning place house, tion or because the questioned is one whom the person where there are warnings required only Miranda suspect.
police as to render him a on a freedom person’s has been such restriction which environment to It was that sort coercive ‘in custody.’ and to which it is was made its terms by applicable, Miranda at at at 50 L.Ed.2d limited.” 429 S.Ct. U.S. was not in definitely case the defendant In our present two asked him the Fur questionss. when Officer Sturm custody ther, was the result of the of freedom occurring any deprivation an between incidental conversation any “coercive aspect” result, armed, As a uniformed officer and suspect. police warnings were not Miranda required give prior police questions. investigatory that is required
The defendant next contends suppression to arrest. of a lack of cause because probable to the of- of events which contributed police The chain following the arrest. The officers occurred prior police ficers’ knowledge which from an security guard reported received call airport and that thе black Lucky’s had occurred Mister stabbing did was west on Road. The Airport security guard suspect heading When the officers ap- how he acquired knowledge. not indicate the defendant admitted that with the informant present, proached, and that a knife was involved. he was involved in an altercation officer. At this then handed the knife to police The defendant knife, on the on defendant’s time the observed blood policemen hands, this cor- fully and on his At clothing. point report knife, the blood on his roborated defendant’s production that he was involved in a and his admission hands clothing *7 Lucky’s. knife altercation Mister informant’s tip, a a corroborated In case involving partially stated: United States Court Supreme within facts and circumstances cause existswhere ‘the “Probable had and of which they knowledge arresting officers’] [the in themselves sufficient information reasonably trustworthy [are] that’ an of- in the belief to warrant a man of reasonable caution States, 267 v. United has or is committed. Carroll fense been being
89 280, 288, 132, 69 v. United S.Ct. L.Ed. Draper U.S. 543].” [45 333, 327, 307, 313, 329, (1959), 3 L.Ed.2d 358 U.S. S.Ct. States that the sufficient knowledge It is obvious offiсers possessed a that an offense had been committed and that it warrant belief was committed the defendant.
Defendant next contends that the confessions and the pro duction of the knife were as a result of the defendant’s involuntary lack of sophistication. Defendant relies on State v. White 226, 146 Mont. 405 P.2d for the that the proposition age defendant, education, his level of and his lack of experience with law enforcement procedures are factors to be considered in However, White, voluntariness. detеrmining confession of who had 16-year-old been without counsel interrogated for present three White, hours was held to be In voluntary. this stated: Court minor,
“The
of a defendant
age
his education and his lack of
with
law
previous experience
are also
factors to be
important
considered in
determining
voluntariness of a confession. The
old,
defendant here is 16
is in
years
the ninth
and had no
grade
However,
previous
record.
police
these facts alone do not necessari
require the trial
ly
court to find the confession inаdmissible.” 146
Mont. at
In contrast with was Graves old with an years eleventh education; however, grade there was also that he was testimony disturbed as a result of emotionally and had consumed stabbing of alcohol large quantity to the during day evening prior crime. Defendant had also been read his had himself read rights, them, to understand the appeared written rights signed waiver of his No evidence was rights. which indicates proffered that defendant was Graves incapable understanding rights. himself testified that at the time of the incident he “kind of drunk”, drunk” as to “real and the written confession was opposed three and one-half hours later. There also was no signed nearly evidence coercion other than the incidental indicating atmosphere addition, arrest. In Graves’ the knife in- any production *8 during responses statements were spontaneous
itial inculpatory circumstances, this these with the officers. Under first contact in merit. is also lacking argument that the knife should be sup Defendant also maintains con and seizure without as a result of a warrantless search pressed issue, no search was in of this we out that point sent. In disposing was in asked Gravеs if a knife volved. A officer police merely and in the altercation defendant said “yes” volved whereupon the knife to the handed police. that the District erred in refus
The defendant asserts
Court
at
under
ex
to
his affidavit
State
hearing
ing
accept
suppression
(1925),
Defendant next contends there insufficient evidence the conviction of deliberate homicide. “On support mitigated the verdict is we examine the evidence to determine whether appeal view the substantial evidence. In so we doing, supported evidence in the most favorable to the . . . Substantial State light as a mind evidence means such relevant evidence reasonable might as a conclusion.” v. Merseal State accept adequate support 415-416, 1366, 1367-68; and 167 Mont. 538 P.2d cases the evidence in this we find light, cited therein. Viewing of mitigated there was sufficient evidence to conviction support defendant confessed to the He stabbing. deliberate homicide. The Marlow], bust testified “I said come outside I’ll Craig also [to man witness testified that a black fitting Another your jaw.” ad shirt and white vest defendant’s red wearing descriptiоn cut him That’s “I came out I cutting. up. mitted after stabbing, not like me.” reveals that the Other defendant was the testimony black man at Mister and that he was a red only Lucky’s wearing shirt white vest. There also that the defendant testimony decedent, was under no and he ad- compulsion fight himself mitted that he could to his have returned seat the bar after Craig *9 short, Marlow’s invitation to outside. In go jury presented with sufficient evidence to conclude that the defendant was guilty deliberate and that mitigated homicide his use of force deadly was not justified.
Defendant next cоntends that the District refusal to Court’s give his offered instruction on self-defense violates the Due Process Clause.
The instructions were the District following Court: given by
“Instruction No. 6 homicide, “To sustain the of deliberate charge State must prove following propositions: defendant, Graves, That the
“FIRST: Charles caused the Henry Marlow; death of Alan Craig
“SECOND: That the defendant did so or purposely knowingly; “THIRD: That the defendant was not justified using force which he used.
“If find from you consideration of all the your evidence each of these doubt, has been propоsitions reasonable proved beyond then should find the you defendant guilty. hand, on the other
“If, you consideration all your find from the evidence that any these has not been propositions proved doubt, beyond a reasonable then you should not find defendant added.) guilty.” (Emphasis No. 7
“Instruction homicide is deliberate homicide when “Criminal mitigated homicide which would be deliberate homicide is com- otherwise stress mitted the influence of extreme mental or emotional under The for which there is reasonable or excuse. explanatiоn reasonableness of such or excuse shall be determined explanation from the aof reasonable in the actor’s situation.” viewpoint person
“Instruction No. 17 “A in the use of force or threat to person justified use force another when and to the extent against that he believes reasonably that such conduct is to defend himself or necessary another against However, such other’s imminent use of unlawful force. he is in the use of force to cause death or justified likely serious bodily harm if he only believes that such reаsonably force is necessary imminent prevent death or serious harm to bodily himself or another or to prevent commission of a forcible felony.” (in
“Instruction No. 1 pertinent part) “To this information the defendant has not pleaded guilty, under that he denies material plea of the informa- every allegation him, tion and in order to against convict him of the crime charged him against material fact every constitute such crime necessary evidence, must be the State proved by by competent beyond doubt; reasonable аnd if the entertains reasonable jury any doubt fact or upon element any constitute the crime necessary charged, *10 it is your the defendant the benefit of duty give such doubt and to acquit.”
Defendant contends that the District Court erred in the refusing instruction: following proposed
“Defendant’s Instruction No.3 Proposed “You are instructed that the must State prove beyond reasonable doubt that the defendant did not act in self-defense. If find that the has you State failed to a reasonable prove beyond self-defense, doubt that the defendant did not act in must find you words, the defendant not In other if have a reasonable guilty. you self-defense, doubt whether or not the defendant acted in ver- your dict must be not guilty.” has
This Court been faced with numerous cases challenging result, instructions in self-defense recent As Montana law years. 45-3-102, MCA, in this has become well-settled. Section regard “ force,” 45-3-115, MCA, defines use of and section justifiable pro-
93
vides that it is an
it is
affirmative defense. Since
an affirmative
defense,
an element
or
rather than
of deliberate homicide mitigated
homicide,
deliberate
therе is no constitutional prohibition against
the
of
placing
burden
the defendant.
v. New
proof upon
Patterson
197,
(1977),
2319,
York
432 U.S.
97 S.Ct.
Pursuant this Montana in the context of in jury case, structions in it is given present obvious that District Court erred. Instruction No. 6 includes of justifiable absence use homicide; of force as an element of of the crime deliberate this is a of misstatement the law. Absence an justification is affirma tive defense which requires the defendant to sufficient produce evidence before it in issue. placed we find Although 6, District Court committed error giving instruction No. our discussion not end here. We must may determine if this error was or prejudicial harmless and merely whether the District Court erred in to give defendant’s refusing proposed instruction No. 3.
In self-defense examining instructions this Court has stated several repeatedly which review of principles govern instructions. The instructions must viewed as a challenged be whole to determine if from fairly have limited the defense they not give District need defense. The Court presenting theory a theory nor on nuance of instructions instruct repetitious every P.2d defense. v. Mont. See State Bashor *11 (1980), Mont. 484, 1098, 1113; 185 37 Hamilton State v. St.Rep. 94 1129, 70, 79;
522, 1121, v. Freeman 37 State St.Rep. 605 P.2d 368, 373, 1622, 334, (1979), 36 599 P.2d St.Rep. 183 Mont. 1130, 1628-29; Azure, 36 at 591 P.2d Rt St.Rep. v. supra, State 239, 950, (1978), 519; P.2d Mont. 587 State v. Reiner 179 953-954, 35 1864. St.Rep. No. 17 is a verbatim recitation must be noted that instruction
It 45-3-102, statute, section use of force” of Montana’s “justifiable Freeman, Reiner, Bashor, the same instruction In Azure MCA. of the burden with omnibus instructions regarding was given along the in- of innocence. This Court approved and presumption proof could theory that the defendant fairly present structions stating on that instruction stated separate of defense. Azure specifically be would merely with to self-defense the burden of proof regard failure was stated that the District Court’s In it Reiner repetitive. doubt of of a reasonable defendant’s burden raising further explain 45-3-102, section and that merely reciting is not guilt prejudicial, we state in MCA, a new trial. As so as to justify is not misleading Reiner:
“. . . the test to be when error is on a in- predicated jury applied whether, struction is is as a of part when the instruction considered instructions, the whole is to the the instruction body prejudicial 414, 430, 543 State v. 168 Mont. appealing party. Caryl 389, 398, P.2d statеs the rule: applicable “ instructions, ‘In the effect of all instructions determining given whole, as a the case to must be considered if tender they fairly instruction, alone, not the fact one standing jury, as.full ” or accurate as it have been is not reversible error.’ might 953-954, P.2d at St.Rep. in No. 3 merely repeats instruction
Defendant’s proposed of instruction quoted portion struction No. 6 and the previously must an absence prove which that the State No. provides distinction be doubt. The only a reasonable justification beyond and instruction No. instruction tween the defendant’s proposed of the term “self-defense” is the use the burden proof regarding which he the force using as to the use of “justified opposed and in no No. 3 is purely repetitive used.” In this instruction light, *12 the way prevents defendant from his of fairly presenting theory defense. to the court’s misstatement law
Turning of in instruction 6,No. we find the was error harmless. No suffered the prejudice by defendant; in fact the instruction as was beneficial to his given defense. of Instead the that defendant has the instructing jury the burden of sufficient evidence to use of рroducing put justifiable issue, force in the District Court effect in instructed the that jury was in and self-defense issue must be the a proved by beyond State Thus, essence, reasonable doubt. the in District a find Judge made of fact beneficial the ing defendant which should have been made no jury. the Under this by may be considered theory reversi ble error. the defendant asserts that
Finally, miscon prosecutorial the duct his of case and denied a prejudiced him fair presentation trial. The factual this basis for contention is a motion the seeking endorsement fivе additional witnesses on the information. This motion was on made the the first of trial. In prosecution day motion, the the arguing county attorney belief expressed was defendant involved in a robbery knife-point evening before the and that the trial additional witnesses would be needed show a course of conduct. The continuing court reserved ruling on the motion that it stating presented question relevancy of the value of required the evidence weighing probative against its prejudicial impact.
Defendant’s contention is that motion was not made by in faith and that defense counsel was forced county attorney good valuable time and to spend investigating alleged robbery However, change defense tactics. if defense counsel did ex- spend tensive time to defend this action preparing against allegation The court took the matter under advise- entirely premature. witnesses were the information. ment never endorsed upon circumstances, there no basis for reversible finding Under these error in this context.
The conviction is affirmed. judgment concur. and HARRISON DALY MR. JUSTICES cоncurring: specially MR. SHEEHY JUSTICE no. 6 em- instruction because concur in the result foregoing, I in- of defendant’s proposed of the case denial bodied the law the instructions. in avoided repetition struction no. merely future, however, will not offer that in the prosecutors Assuming, for as an element no. which include such as court’s instructions using was not justified that the defendant the State to prove as used, is necessary that some comment he it force which appears case. a so-called self-defense instruction in proper was done in First, as instructing jury, believe that merely I statute, sec- of the no. in the language case in instruction this *13 MCA, an 45-3-102, the jury force gives respecting justified tion determinations. In of use in its which is little abstract statement defendant, claimed of force is by cases where the use justified it, an be given the evidence at least where supports the jury, should to be considered in which are that sets out the elements instruction (1) the are: These whether the force justified. determining (2) of harm to him the danger not be the aggressor; defendant must time, one, or at a future not threatened bе a merely must present threat; (3) the force of out ability carrying without present — tortious; (4) the or either criminal must be unlawful threatened is, exists, use that the danger believe must actually person that the kind to avert the danger, force is necessary belief, (5) in each he uses is necessary; of force which amount See, described, it is mistaken. even if is reasonable the aspects (M.C.C.1973), section Comment Law Commission Criminal be should 94-3-102, believe that jury I Secondly, R.C.M.1947. the defendant claims justification in a case where instructed he raises a defense if established his force that he has use of as to the by of the proof reasonable doubt in the minds juries of the elements of the crime charged. State that if the be instructed should further I believe the jury Thirdly, such raising defendant fails to meet burden persuasion doubt, event, of the State the duty reasonable it remains in any the elements of the crime prove reasonable charged beyond doubt. is a
There deal of good area in the instructions which cloudy we have been in homicide cases approving justified where force is claimed, not the least of which I out in dissent in pointed my State v. Bashor 188 Mont. 614 P.2d St.Rep.
MR. SHEA dissents and will file written dissent later. JUSTICE