*1 248 Respondent, MONTANA,
STATE OF Plаintiff v. SIGLER, RUSSELL Defendant WILLIAM Appellant. No. 83-138. 16, April 1984. Submitted 4, 1984. Decided June
Rehearing 1984. Denied Oct. P.2d 749. *2 Opinion MR. delivered the JUSTICE SHEEHY Court. convic- judgment from Sigler appeals
William Russell *3 District, Mis- Court, in tion the District Fourth Judicial of old homicide 19-month County, soula of the deliberate Paul T. Wilkinson. (1) in the admissibil- opinion we this are: issues treat (2) acts; crimes, the ad-
ity wrongs evidence other (3) whether inflammatory photograph; of an and missibility in were error. defining homicide the instructions deliberate T. Wilkinson February 23, Paul On 19-month-old his occupied by in Missoula trailer was found dead the East friend, her male mother, Rachel Wilkinson and Kathleen Sigler. appellant the William Russell a latе after- responded had County Missoula authorities stopped had breath- a the residence noon call that child was found, and his stomach ing. When the child was naked pronounced The child was noticeably distended and hard. County deputy coroner. by dead Missoula examining An the child and the autopsy performed was on blunt force that the cause death pathologist found bowel perforated which small the abdomen trauma to abdomen, places, two causing acute inflammation peritonitis and pathologist eventual death. The character- severe, ized force as causing death and estimated injury the child which resulted the death oc- curred within hours his and most before likely the injury cause of was a blow fist or a foot. He rejected any fall a cause because force accidental would not be sufficient and because he found a number of injuries of varying ages body other on the of the child. The injuries other during autopsy found included hemor- rhage glands; around adrenal an fracture old untreated wrist; right testis; of the surrounding a contusion left abrasions, head; hematoma to the and numerous other con- tusions, head, face, аbdomen, hands, and scars on the back legs. and At least one of the be scars could attributed to a cigarette burn. Three additional medical doctors concurred opinion with the pathologist’s that the death could have accidentally. been caused
Evidence history was introduced at trial of past child’s care his Sigler. evening mother and On the before death, neighbors Larry Strange Donna Collins and had been the trailer were ill quite told the child was vomiting that Ms. evening. Collins advised that strongly child taken to the immediately. doctor Strange testified that he visited the every trailer аlmost day, that he usually sitting in observed the child to be highchair or his potty chair get and that the child would quite tense Sigler approached when Strange him. saw give the him pick child hard spankings, and once saw up by child the hand He being spanked. while stated spanked merely child had been for He had crying. cigarette seen burns on the child’s and had seen a hand bruise underneath eye days prior his left ten to two weeks *4 to the He Sigler death. saw once the child on the “whop” forehead he when would not eat. He heard the child vomit- ing every p.m. about 20 to minutes to a half hour from 6:00 p.m. 10:00 on the evening before the death. Collins testi- Keatron, 16-year-old
Tim the son of Donna four times a fied three to he was the trailer home about by his and pick up He the child arm Sigler week. had seen hit spank him the the child and testified that defendant death, days he had for the child’s before the hard size. Two on so hard that he caused Sigler slap seen the child the face nearly to come his head to touch his shoulder and blood discipline was the The that from his nose. reason for that had the also seen child would not eat cereal. Keatron during period. the same defendant kick сhild disci- surrendered the The mother testified that she had testi- pline to of the witnesses who Sigler. child None man- discipline the fied saw the child’s mother child ner Sigler. exhibited testify, he state- not but had made
The defendant did of the early investigation to during ments law officers that child statements, hypothesized incident. he large plastic by falling had hurt on a footlocker on been on the morn- He the officers that dump truck. further told better, death, feeling to ing appeared be child talk- fed, blabbering he and that he had was been found to ing up to ten minutes before to himself possi- The medical witnesses disсounted the breathing. bility testimony this last was correct. Wilkinson, mother, codefendant
The child’s Kathleen with the plea bargain into a original action had entered testimony. testified that in connection with her She State She the death. healthy day the child until before p.m., 3:30 had to trailer of Collins at about gone Donna her p.m. had and ordered Sigler appeared and at about 5:30 child by Sigler to home. She was told return child, found She had fallen out of bed. examined during the him The vomited acting sluggish and tired. child striking She ever evening and refused to eat. denied leave a bruise. enough hard child the abdоmen or face This homicide. guilty of deliberate found appeal ensued.
I. Sigler testimony relating attacks the of witnesses to other crimes, him wrongs by or acts toward the child on v. in State Just (1979), grounds required that the elements State v. Jensen 262, (1969), 957, 184 Mont. 602 P.2d and 233, met; 153 Mont. 455 P.2d were not that 631 acts Sigler only testified to the witnesses indicated that Sigler spanked child, hands, slapped flipped his or child’s head with his of which would finger, none have death, caused his and so are dissimilar to the acts which brought child; about the and that the acts were no more disciplinary procedures than normal and were not “unusual and distinсtive” qualify wrongful so as to for acts crimes under State v. Hansen (Mont. 1980), 608 P.2d 1083, St.Rep. 37 657.
The
replies
State
that
the evidence meets the guidelines
Just,
imposed in
supra;
prior
the evidence of
acts of
corpus
discipline
part
are
delicti of the
of the entire
(Mont.
Riley
State v.
charged offense,
1982),
citing
[199
413,]
1273,
Mont.
1491;
649 P.2d
Rep.
39 St.
and that when
victim,
battered
pattern
child is the
of conduct exhib-
ited
the defendant-caretaker
toward the child victim is
State
within the scope of
v.
the issues before the court.
Tanner
(Utah
1983),
The contention that the acts discipline reported by neighbor witnesses by Sigler used on the child are dissimi- lar to the kind of required force to bring about the child’s death is not supportable. The mother testified that evidence, was the disciplinarian sole of the child. Under the response any perceived disciplining need for the child always intemperate, slipped gear slight- and into on the provocation. est His treatment of a 19-month-old infant brutal, heedless unfeeling. agree We cannot his treatment discipline. constituted “normal” Just, we set out a four-element test to determine admissibility evidence of other crimes or acts criminal prosecutiоns. (1) (2) They acts; similarity are of crimes or (3) a common time; tendency to establish nearness (4) scheme, and, probative value plan system; by the substantially outweighed evidence must not be prejudice to the defendant. Just ele- here meets testimony of the witnesses addition, state- meets our particular,
ments each 294, 307, (1979), in State v. Brubaker 184 Mont. ment 981, crimes or acts: evidence of other relating P.2d admissible, as an to be of unrelated crimes “For evidence rule, the evi- appear must exception general to the it a common to establish dence of the other crimеs tends similar to of conduct scheme, or course plan, system, design *6 re- and not too charged the one closely or connected with re- crimes so mote; to establish must tend and evidence other. Within proof one tends to establish lated that of ad- for the paste and cover those must be found the words . . .” missibility acts of the unrelated only cir where had a situation District Court here The against the case bring could out cumstantial evidence to distrust for a many were reasons defendant. There stated incident. We the defendant’s statement Brubaker, acts should crimes or that еvidence of other the defend to surmise that admitted if it leads the be when evidence But probably guilty of the offense. ant was de the conclusion acts tends toward unrelated certainty moral charged with is of the crime guilty fendant doubt, certainly admissible. it is beyond a reasonable Tanner, pointed Brubaker, court supra, the Utah supra. nature specific link only available between out that the evi may be the caretaker injuries of the child’s caretaker. by prior abusive conduct dence excep crimes, is an wrongs or acts other Evidence of person’s charac of a rule that evidence general tion to the ac that he proving purpose ter is not admissible for the Rule occasion. particular conformity on a ted therewith distinguished be 404, is to A trait of character M.R.Evid. re- to a response regular person’s “A habit is a from habit. peated specific 406, situation.” Rule M.R.Evid. Habit or practice routine may proved by testimony be in the form of an opinion by specific instances of conduct sufficient number to a finding warrant the habit existed or that practice was routine.
“Character thought of as the sum of one’s habits though doubtless it is more unquestionably than this. But the uniformity of one’s response to greater habit is far than the consistency with which one’s conduct conforms to char- acter disposition. Even though only character comes exceptionally act, as evidence of an surely any sensible man in investigating X whether particular did a act would be greatly helped in his inquiry by evidence as to whether he was in the habit of doing it.” McCormick on Evidence Sec. 162, at 341.
Under Rule Evid., M.R. the acts habitually performed by Sigler in response to perceived discipline need for the child were admissible. habit, As a matter of his disci- pline of the child was excessively harsh.
We find no error in the admission of the disciplinary acts administered Sigler to the child.
II. principal second assignment of error the District Court abused its discretion in receiving the photograph identified as State’s exhibit 18FF into evidence.
The pathologist, on autopsy, discovered a subdural hema- toma beneath the scalp. child's The pathologist pho- took a tograph, only the photograph taken of in- particular that jury. The scalp was reflected or drawn back in order to show the injury because of the lоng victim’s hair. Before al- lowing evidence, it into as the District required, Court the pathologist portions blocked pictures of the slide so that only the injury was shown.
Sigler contends that the highly prejudicial exhibit was inflammatory and did depict how the ap- child would pear to another person. effect, In he is claiming that the 256 proba-
prejudicial photograph outweighed effect of the its value. tive autopsy
Many photographs the discoveries were without The subdural hematoma objection. admitted received, the the had injuries was another of the that child caretаker, unexplained principal source of was which Sigler. purpose photographic We that where the hold case, the it is understanding exhibit is the jury to assist in admissible, though prejudicial even its effect its probative outweighs prejudicial flammatory, its value v. (1981), 268, 272, 639 effect. See State Mont. 196 Hoffman 245, Buckley State v. 507, (1976), 238, 510; 171 Mont. P.2d (1972), State v. O’Donnell 286-287; 283, 159 Mont. 557 P.2d 138, 142, 299, we that 496 P.2d 301-302. this case hold in admitting its the did not abuse discretion District Court evidence; probative the into that its value photograph inflammatory effect important any more than prejudicial nature extent because to know the jury the entitled methоd injuries and no other suffered the child well. This Court would have shown it or as graphically respect similarly with holding has been consistent 82, v. Austad (1982), 70, 641 photographs. State 197 Mont. 481, (1980), State v. McKenzie 1380; 186 Mont. 1373, P.2d 505-506, 443-444, 1050 428, P.2d cert. den. U.S. 228-229, (1973, Fitzpatrick v. 220, State (1980); 163 Mont. 516 P.2d 610-611.
III. failed District Court argument final is that Sigler’s definition properly jury considering instruct statu He that “purposely.” state contends mental statutory def coupled tory purposely, definition of as jury. Sigler inition of confused the deliberate homicide if it instructions, could convict serts that under striking conduct of purposely engaged found find under did not need to the child and that death, result, he intеnded instructions *8 result, purposely sup- or that he death. He caused ports by jurors this contention several signed with affidavits after trial and filed with his motion for a new trial before the District Court. issue, this resolving we no attention to the affida- pay
vits of jurors signed post-trial. They may not be consid- they provided ered since do exceptions not fit within the 606(b), Evid., Rule within purview M.R. nor of Section 25-11-102(2), MCA.
The no objection defendant made to the instructions they when during were offered the trial. He would ordina rily be from raising objections barred his now before this If, however, Court. the District Court had erred the vital definition “purpоsely” case, in this we would have re to verse, even without objection trial, raised on counsel at grounds Therefore, of plain error. giving Sigler the ben doubt, efit of every proceed we consider issue raised by him respect with to these instructions.
The charged Court to the elements crime in its instruction No. 15:
“To sustain homicide, the charge of deliberate the State prove must the following propositions: “First, performed defendant the acts causing death of Wilkinson, Paul T. Jr.
“Second, so, that when pur- the defendant did acted posely or knowingly ...” gave Court also defining these instructions “Pur-
posely,” “knowingly,” and “deliberate homicide:”
“Instruction No. 12. A person acts purposely respect with to a result or to conduct an defining described statute offense it is his object conscious engage conduct or to cause that result.
“Instruction No. 13. A. person knowingly respect acts with to conduct he is when aware his conduct. person
“A knowingly respect acts result of con- to the duct by a defining described statute an offense when he aware highly it is probable that such result will by caused conduct.
“Instruction No. 14. A commits the offense de- purposely liberate if he causes the knowingly homicide death of another human being.” Montana, always
We need to remind ourselves that *9 In against by crimes State are statutes. those the defined frame the provisions statutes we will find the that generally and rights prosecute of the State to its defined crimes that preserve only rights the to be convicted of the defendant statutorily-defined upon beyond a reasonable proof crimes doubt. if Montana,
In he a a criminal homicide person commits pur- voluntarily being, human causes the death of another and 45-5-101 45- posely, knowingly negligently. or Sections replaced 2-202, “knowingly” have “Purposely” MCA. known to our former law. concepts the of malice and intent 45-2-101(33) short, In (58), the volun- Sections MCA. (Title 45, Ch. tary person, of a if not justifiable act MCA), is criminal knowingly, purposely, negligently or done if it causes the being. of another human homicide death Section 45-5-101. therefore, the prosecution,
In a criminal homicide State beyond prove find a reasonable jury must and the must voluntary and of the defend- unjustified doubt that the act ant, or the death purposely, knowingly negligently caused State, duty of the primary the victim. Proof of cause is a by for a jury to found necessary and a element proper in a homicide case. conviction criminаl a relation-
Montana law what constitutes causal defines 45-2-201, MCA. ship between and result. Section conduct case, if result, applicable is the to this Conduct cause of as occurred; (a) have without the result would not conduct the result was not within and, (b) contemplation offender, or in- kind of harm purpose of the but the same harm or though precise him contemplated was way. Section or occurred in a different injury different 45-2-201, MCA. case, beyond
Applying proof Section 45-2-201 to this any perfo- doubt brought conduct which about child, rations to child’s of the bowels caused сonduct, and that such without the death would not have addition, occurred. In the result involves the same kind of harm or even injury contemplated though the conduct precise harm, death, occurred in different or words, way. voluntarily, different other if Sigler as the jury found, punched with fist or foot kicked with his not have in- child, stomach of though even he tended act, that death from the contemplated result “the kind injury” child, is, same of harm or to the harm or injury to the abdominal area of the child.
Moreover, ways there are two which a can act “purposely” respect to a result or cоnduct described by the 45-2-101(58), statute offense. defining an Section MCA. (1) He purposely acts if it is object his conscious engage conduct, (2) in that cause that result. Either proposition finding will sustain the de- *10 45-2-101(58), fendant purposely. acted Section MCA. In case, by this there justifica- is no claim the of defendant tion, mitigation or In his he excuse. statements did not ad- mit that he performed any brought act or acts which about the death the of child.
In way, statutory the same our of “knowingly” definition here, cuts ways. Applied two knowingly acted with respect to his conduct if he aware of his conduct. He to the result аcted knowingly respect with his conduct if of probable was aware that it highly that such a result would 45-2-101(33), be caused his conduct. Section MCA.
It is therefore true given that under the instructions case, this crimes, under defining and the statutes the State is specific intent of required not prove defendant to cause the death of child. We have said: Starr, agree however,
“We do on contention specific duty it was Starr’s prove of the State to at intent to transfer dangerous substance then or a subse- its statutes quent revamped time. Since criminal Montana Code, spe- Model Penal by adоpting essence the concept, cific is unless statute intent not an elemental spe- thereof a requires as an element defining offense Starr State v. original.) . .” purpose (Emphasis cific . (Mont. 893, 897, 40 1983), 210,] Mont. 664 P.2d [204 St.Rep. 796, 801. intent examples specific
A of of few of effect deletion point: statutory from will demonstrate our scheme con- proof beyond doubt defendant a reasonable of gun with a where no circumstances sciously shot another appear, and the other mitigation, justification excuse or defendant convict the gunshot, died from the will suffice to in- homicide, was the proof of without that death deliberate defendant; proof beyond a reasonable result tended his au- to drive consciously doubt that a defendant decided where no cir- pedestrian of a against tomobile justification appear, mitigation, cumstances of excuse or person, will with his pedestrian died of the collision homicide, of deliberate suffice to convict defendant in- was the pedestrian proof without the death of tended result the defendant. an act which proscribes purposely doing
Our criminal law another; doing an aсt proscribes death it causes the also of another. object causing with the the death conscious result, former, but In the not be the intended death deliberate purposely, is done the act which causes death latter, is the intended In the homicide committed. in- result, to that any defendant which leads act tended result is deliberate homicide. said, mitiga- no case, are issues this as we have there
tion, evidence justification or The circumstantial excuse. *11 jury that finding by the strong to enough here is sustain resulted in conduct which purposely engaged the defendant jury to given in of child. The instructions the death to prosecution prove required no less for the no more and Therefore, re- given properly this case. the instructions flected error in applicable law. We find no the instruc- given. tions
IV. The judgment of Russell for conviction William deliberate homicide affirmed.
MR. CHIEF JUSTICE MR. JUSTICES HASWELL and HARRISON, WEBER and GULBRANDSON concur.
MR. JUSTICES SHEA and MORRISON dissent and will file written dissents later. MORRISON,
MR. JUSTICE dissenting: Instruction 14No. stated the elements deliberate homi- cide. The trial court said:
“A commits offense of if he deliberate homicide causes purposely or knowingly another human being.”
The instruction is an accurate paraphrase еlements of deliberate homicide found in 45-5-101 Section and 45-5- 102, MCA. An essential element of offense is caused the death defendant purposely of knowingly another.
Trial court’s clearly instruction No. 15 was erroneous. That instruction said:
“First, performed causing defendant the acts “Second, Wilkinson, death of Paul T. Jr. that when the de- so, fendant purposely did knowingly.” acted or they court failed instruct must find jury causing purpose defendant acted with knowledge 45-5-102, the death required Section 45-5-101 and MCA. The trial court told the convict defendant purpose found that or knowl- defendant acted with death, irre- edge acts which performing resulted spective purposely knowingly of whether defendant *12 caused the death. Under the court’s instruction No. 15 the required to convict of deliberate defendant though they homicide even might find the victim’s death was accidental.
The majority was unable to reconcile instruction No. so, with the statutory definition of deliberate homicide and result, simply achieve the desire amended the statute. majority states: proscribes purposely doing “Our criminal law an act which another; proscribes doing causes the death of it also an act with the object causing conscious the death of another. former, result, In if may death not intended but purposely, act which caused the is deliberate death done homicide is . . .” committed. fiat,
By judicial the law Montana is that a defendant who acts with purpose accidentally causes the death of anther, words, is In guilty of deliberate homicide. other fist, one strikes another on the one jaw with his and the ground striking upon struck falls to the his head the curb- ensues, ing, and death the offense is deliberate homicide. perfectly This case illustrates inherent in result- evil may making. Sigler’s oriented deсision Defendant conduct If well have resulted in the death of an infant child. be- lieved, for sympathy case leaves little room for State’s Sigler. inflammatory provide gen- These settings factual principles. esis for legal irrational and unworkable I reason would reverse and remand for a new trial for the essential that court’s instruction No. 15 failed to include an element of the crime of deliberate homicide.
ORDER AND ON PETITION FOR OPINION
REHEARING In his issue with this petition rehearing Sigler for takes language opinion: our proscribes purposely doing
“Our an act which criminal law another; doing an act prosсribes causes the death of it also object a conscious causing death another. former, result, not be the intended but if the act purposely, which causes the death is done deliberate homicide is committed.”
Sigler language contends the above “broadens crime,” definition of the most serious and eliminates crime of negligent agrees homicide. The State with this as- Attorney sessment. The General has thus conceded the ma- jor premise of the minority opinion original filed with the this A case. concession of such broad dimensions does wring from Attorney Sigler General an аdmission that entitled to a new trial however. Instead State continues to contend “adequately case was *13 instructed.” Yet if case, under the in original opinion this Sigler could have been convicted of deliberate homicide for an child, would, accidental killing indeed, of the he as the minority contended, be entitled to a new trial.
We reject the contention original opinion that our in this case has eliminated the of negligent crime homicide or broadened the crime of why, deliberate homicide. To show we must again discuss the effect adoption of the Modеl Penal in Code our criminal statutes in 1973. with,
To begin specific concept intent is not an elemental of a crime under the present criminal code unless the stat- ute defining requires the offense as an element thereof a State v. Starr specific (Mont. purpose. 1983), Mont. [204 210,] 893, 897, 664 796, P.2d Rep. 40 St. 801. The state this case was required prove specific to a intent on the part of Sigler to kill the child when he kicked his stomach. State v. Gratzer (Mont. 1984), 308,] Mont. 682 [209 141, 145, P.2d 41 Rep. 727, 731, St. we said: “The effect of the adoption of the 1973 Criminal Code Montana was to change radically our legal concepts for proof of homicide. Formerly, presumption proof of of a killing committed, was that the lesser crime had been duty Sate had the going forward with the evidence beyond a reasonable greater doubt that had been com- Now, is that legal proof killing mitted. effect of of a committed, homi- greater crime has been that of deliberate cide, excuse, justi- unless the mitigation, evidence shows fication. . . .” 682 145. P.2d at case,
In this the homi- Sigler jury was instructed being cide was if a human was caused deliberate a death of was also instructed that purposely knowingly. The conduct person purposely respect acts to a result or to with crime, engage constituting object it is his conscious 45-2-101(58), the conduct or result. Section to cause on the Sigler jury MCA. The also instructed court important is here. meaning “knowingly” which respect with to con- knowingly was told that a acts conduct, he acts when his and that duct he is aware of when respect the result of his conduct knowingly is aware then it is result will be highly probable that such a 45-2-101(33). In con- caused MCA. conduct. Section statutory definition of “know- sidering the effect of the Coleman (Mont. 1979), in State v. 605 P.2d ingly” we said (Opinion Rehearing): on far knowledge “The statute considers two elements (1) conduct knowledge as this as to the case is concerned. (2) It and, result of that conduct. knowledge itself as to the result of the conduct hangs proof on the only result probable that such highly his awareness that ‘it is ” (Emphasis original.) be caused his conduct.’ [would] 45-2-101(33), there- definition, MCA. By statutory Section *14 State which the “knowingly” fore a second element of awareness prove to convict of a crime is the defendant’s result will be caused highly probable that it is that Sigler jury that his conduct. Here the verdict shows the time of awareness at Sigler possessed found that such be- Particularly is this true in the child. kicking conduct negligent instructed although cause was negligent case, in not convicted homicide this was homicide, of deliberate homicide. but rather and we emphasized, opinion, we original Sigler must be there here, law that under Montana re-emphasize result. Sec- and the the conduct relationship causal between result, as 45-2-102, cause of the is the tion MCA. Conduct (a) the result case, the conduct applicable without to this result (b) occurred; if the would not have offender, but purpose of the contemplatiоn within the or by him contemplated injury the same kind of harm or occurred was different or though precise injury harm or way. a different crime not abolish the opinion The therefore does majority statutory emphasizes Rather is negligent homicide. It in this which the found case. elements of the crime opinion, clear, original Sigler following should be our person purposely deliberate homicide is committed when being; human knowingly causes the death of another statutory of delib- the word “causes” in the definition with Section conjunction erate homicide must be read 45-2-201, MCA, a causal what constitutes which describes origi- The relationship between the and the result. conduct Coleman, opinion again nal states what had been stated proof is be- supra, person knowingly that a acts when there high yond is aware of the a reasonable doubt that he there is probability Finally, conduct. the result of his within the con- relationship though causal the result is not defendant, where the same templation purpose of or him contemplated by though injury kind of harm or precise or occurred a different injury harm or is different way. does not include
Negligent homicide under our statutе Section 45-5- “purposely” “knowingly.” mental states of when the negligently A MCA. homicide is committed or con- respect to a result negligently acts occur, or when result will sciously disregards a risk that should be aware disregards a risk of which he 45-2-101(37), person’s MCA. result will occur. Section risk involves disregard must be such that negligence that a rea- of conduct gross deviation from the standard *15 sonable would observe the actor’s situation. Sec- 45-2-101(37). tion presence purposeful knowing
It is the action, as de- distinguishes statutes, fined our deliberate or miti- gated negligent homicide from homicide.
IT IS ORDERED:
Accordingly, deny petition rehearing we for modify paragraph exception to which was taken “knowingly” defendant and the State to insert follows: proscribes purposely doing
“Our criminal law an act which proscribes doing another; causes the death of it also an act object causing with the conscious a death of another. former, result, not be the intended if the but purposely knowingly act which causes the death is done deliberate latter, homicide is committed. In the death is the any intended result and act of the defendant which leads to the intended result deliberate homicide.”
MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur. grant
MR. JUSTICES SHEA and MORRISON would rehearing.