STATE v LARSON
Annotate this Case
Download PDF
No. 13503 I N THE SUPREME COURT OF THE STATE OF M N A A O T N 1977 THE STATE O MONTANA, F P l a i n t i f f and Respondent, -vsMYRON LARSON , Defendant and Appellant. Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t , H o n o r a b l e James D. F r e e b o u r n , J u d g e p r e s i d i n g . Counsel o f Record: For Appellant: L e o n a r d J . Haxby a r g u e d , B u t t e , Montana For Respondent : Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana A l l e n B. C h r o n i s t e r a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a , Montana J o h n G. W i n s t o n , County A t t o r n e y , B u t t e , Montana Nadine S c o t t a r g u e d , Deputy County A t t o r n e y , B u t t e , Montana Submitted: Decided : Filed: J.Ab?18 September 3 0 , JAB 18 I978 -.& .-.. Clerk 1977 Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion o f t h e C o u r t . Defendant Myron Larson a p p e a l s from a c o n v i c t i o n e n t e r e d i n t h e D i s t r i c t C o u r t , S i l v e r Bow County, on c h a r g e s o f m i t i g a t e d d e l i b e r a t e homicide, i n v i o l a t i o n o f s e c t i o n 94-5-103, R.C.M. 1947, and a g g r a v a t e d a s s a u l t , i n v i o l a t i o n o f s e c t i o n 94-5-202, R.C.M. 1947. On March 1 3 , 1975, i n t h e D i s t r i c t C o u r t , S i l v e r Bow County, d e f e n d a n t was c h a r g e d by I n f o r m a t i o n w i t h two c o u n t s o f m i t i g a t e d d e l i b e r a t e homicide and one c o u n t o f a g g r a v a t e d a s s a u l t f o l l o w i n g a s h o o t i n g i n c i d e n t a t a r e s i d e n c e i n B u t t e , Montana, which r e s u l t e d i n t h e d e a t h s o f C u r t P h i l l i p s and Mike McDermott and t h e wounding o f Mike P h i l l i p s . D e f e n d a n t ' s f i r s t t r i a l on t h e s e c h a r g e s w a s d e c l a r e d a m i s t r i a l when t h e j u r y was u n a b l e t o r e t u r n a v e r d i c t . Follow- i n g t h e second t r i a l , d e f e n d a n t was found g u i l t y o f m i t i g a t e d d e l i b e r a t e homicide f o r t h e k i l l i n g o f C u r t P h i l l i p s and a g g r a v a t e d a s s a u l t f o r t h e wounding o f Mike P h i l l i p s . Defendant was found n o t g u i l t y o f m i t i g a t e d d e l i b e r a t e homicide i n t h e d e a t h o f Mike McDermott. Defendant was s e n t e n c e d t o p r i s o n t e r m s o f 30 and 1 5 years, t o run concurrently. On F e b r u a r y 1 6 , 1975, between t h e h o u r s o f 2:00 and 3:30 a.m., a d r i n k i n g p a r t y was i n p r o g r e s s a t t h e B u t t e a p a r t m e n t o f Gary L a r s o n , d e f e n d a n t ' s b r o t h e r . Approximately 1 5 t o 20 p e o p l e were t h e r e , i n c l u d i n g Myron and Gary L a r s o n , C u r t and Mike P h i l l i p s , and Mike McDermott. Defendant and C u r t P h i l l i p s g o t i n t o a n argument o v e r t h e opening o f a d o o r i n t h e k i t c h e n . P h i l l i p s wanted t h e d o o r t o remain c l o s e d and d e f e n d a n t wanted i t opened t o l e t f r e s h a i r i n t o t h e apartment. Defendant t e s t i f i e d P h i l l i p s swung f i r s t and he responded by s t r i k i n g P h i l l i p s w i t h a l e a t h e r s a p p h e was carrying. The two men w r e s t l e d t o t h e f l o o r . ~ e f e n d a n t ' sb r o t h e r Gary separated the two combatants and told Curt Phillips to leave the apartment. Phillips refused to leave. Gary Larson then went to his bedroom, retrieved a .38 caliber pistol, returned to the kitchen and fired a shot into the ceiling. Gary then placed the gun in the refrigerator and began fighting with Curt Phillips. Phillips managed to get on top of Larson and was beating him with his fists and the plaster cast he had on his arm, as the two men were on the floor. Defendant, whose face and jaw at the time were wired together as the result of an altercation in which he had been involved some five weeks earlier, attempted to enlist the aid of several persons in an effort to break up the fight. One person tried to pull Phillips off of Gary Larson but abandoned the task when he was struck or kicked by Phillips' brother Mike. As Curt Phillips was standing over and apparently kicking Gary Larson, defendant acted. He pulled a .357 caliber pistol from his back pocket holster and shot Phillips in the back. Mike Phillips then lunged at defendant and defendant shot him in the arm, knocking him down. Mike McDermott then grabbed defendant, the two men wrestled backwards into a bathroom and the gun discharged, killing McDermott. After the shootings someone called the Butte city police. The officers who arrived at the scene determined that Curt Phillips and Mike McDermott were dead. Defendant told the officers he had shot the two men, gave one of the officers the .357 and the leather sapp, and was taken into custody. Defendant presents five issues for review: 1) Whether the District Court should have either dis- missed the action or directed a verdict in defendant's favor on the grounds of insufficient evidence. 2) Whether the verdicts were consistent with the evidence presented relative to the defenses of self-defense and defense of another. 3) Whether the verdicts were consistent with given instructions on self-defense and defense of another. 4) Whether several given instructions were proper and whether offered but refused instructions should have been given. 5) Whether defendant was prejudiced by the state's attempts to have certain items admitted as evidence. Issues 1 and 2 challenge the sufficiency of the evidence to support defendant's convictions. Defendant contends the evidence shows his conduct was reasonable and the shootings were justifiable because he was acting in defense of himself and his brother. Section 94-3-102, R.C.M. 1947, deals with the justifiable use of force in defense of the actor or another and provides in part : "A person * * * is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another, or to prevent the commission of a forcible felony." This Court stated in State v. Brooks (19671, 150 Mont. 399, 410, " * * * to justify a homicide by self-defense, there must be evidence that the party killing acted under the influence of reasonable fear that someone was going to be murdered or seriously injured. * * *. " Evidence presented by defendant went to establishing the reasonableness of his fear for the safety of his brother as justification for the shooting of Curt Phillips and the reasonableness of his fear for his own safety as justification for the shooting of Mike Phillips. This evidence included testimony from a psychologist who evaluated defendant at Warm Springs State Hospital to the effect d e f e n d a n t w a s f e a r f u l f o r h i s b r o t h e r and h i m s e l f on t h e n i g h t o f t h e s h o o t i n g s and t h a t s u c h f e a r was r e a s o n a b l e . Defendant's own t e s t i m o n y i n t h i s r e g a r d i n c l u d e d t h i s exchange: "Q. A t t h a t p a r t i c u l a r p o i n t i n t i m e d i d you have any f e a r f o r t h e w e l l b e i n g o r t h e l i f e o f Gary? A. Y e s , I d i d . "Q. Why i s t h a t ? A. W e l l , I knew what I ' d gone t h r o u g h when somebody had worked m e o v e r , knocked m e o u t and worked m e o v e r . I woke up i n t h e hospital. I d i d n ' t e v e n know what happened u n t i l t h e d o c t o r e x p l a i n e d t o m e t h a t t h e s i d e o f my head w a s c a v e d i n . * * * I was -- I w a s r e a l l y a f r a i d f o r my b r o t h e r . I t w a s j u s t r e a l l y a p p a r e n t t o m e t h a t h e c o u l d s u f f e r t h e same k i n d o f damage, i f n o t more. ''a. Did you t h i n k a t t h a t p a r t i c u l a r t i m e t h a t C u r t P h i l l i p s was c a p a b l e and a b l e t o i n f l i c t t h a t y t y p e o f i n j u r y ? A. M God, y e s . C u r t was a h e f t y p e r s o n and h e was t h r o w i n g a l l o f h i s w e i g h t i n t o t h o s e k i c k s . The f i r s t t i m e h e k i c k e d m b r o t h e r , y my b r o t h e r was t r y i n g t o g e t up o f f t h e f l o o r l i k e t h i s (showing) and t h e f i r s t k i c k , h e g o t Gary i n t h e s i d e o f t h e f a c e and i t spun him c o m p l e t e l y around l i k e h e was o n a s p i t o r s o m e t h i n g , j u s t completely around. I c o u l d n ' t b e l i e v e it. I t h o u g h t , boy i f I g o t k i c k e d l i k e t h a t , my f a c e would f a l l a p a r t a g a i n . A t t h a t p a r t i c u l a r p o i n t i n t i m e d i d you "Q. make any e f f o r t t o t a k e t h e s a p p and go o v e r and h i t C u r t i n t h e back o f t h e head w i t h i t o r a n y t h i n g t o s t o p him from d o i n g any f u r t h e r damage? A. I a s k e d Mike t o p l e a s e s t o p i t , o r I s a i d t o him ' S t o p him.' And Mike had t h r e a t e n e d m e t h a t I ' d b e t t e r n o t do So a n y t h i n g t o s t o p them o r h e ' d do t h e same t o m e . I -- I was r e a l l y a f r a i d t h a t i f I t o o k a s t e p and t u r n e d m back t o Mike t h a t h e ' d l a n d b a s e m on t h e y e back o f t h e head o r something. -- J u s t p r i o r t o t h e t i m e t h a t you o r t h a t Curt "Q. w a s s h o t , what w a s h e d o i n g ? A. H e was b e n d i n g o v e r t o g i v e my b r o t h e r a t h i r d k i c k . "Q. What d i d you d o t h e n ? A. I s h o t . I had t o s t o p him. I had t o s t o p him from k i c k i n g . A kick l i k e t h a t c o u l d do some damage. Those s h o e s w e r e h e a v y . " The s t a t e c o n c e d e s d e f e n d a n t was n o t r e q u i r e d t o s i t i d l y by w h i l e h i s b r o t h e r was b e i n g b e a t e n , b u t a r g u e s d e f e n d a n t ' s u s e o f t h e p i s t o l was a n e x c e s s i v e u s e o f f o r c e and unr e a s o n a b l e under t h e circumstances. Evidence t h e s t a t e p r e s e n t e d tended to show Gary Larson was not badly beaten by Curt Phillips. To the officers who arrived at the scene shortly after the shootings, defendant's brother did not appear to be injured, and he made no complaint to them of having been beaten. Curt Phillips' brother Mike testified the fight was "fair". The only witness called who was at the scene and was unrelated to any of the participants testified she did not see Curt Phillips kicking Gary Larson; she did see Phillips hitting Larson with his cast; and, that she had not seen all of the fight. Defendant testified he was not intoxicated and was thinking clearly at the time of the incident. He also testified he had been around guns since an early age and that although he had not meant to kill Curt Phillips, he "probably could have" wounded him. Testimony indicated only defendant and his brother were armed with any kind of weapon at the time of the incident. As to the wounding of Mike Phillips, the testimony was similarly conflicting. Defendant asserted he was protecting himself from Phillips' attack when he shot the other man in the arm. Phillips testified he was moving away from defendant when he was shot. Defendant argued the jury improperly rejected his claim the shootings were justified under the circumstances. Whether the circumstances were such as to justify defendant's actions is clearly a question of fact for the jury. State v. Fine (1931), 90 Mont. 311, 315, 2 P.2d 1016; State v. Harkins (1929), 85 Mont. 585, 601, 281 P. 551. The jury may have believed defendant feared for his own life or for the life of his brother, and still found the force defendant used to have been excessive. As this Court stated in State v. Fuger (1976), Mont . I 554 P.2d 1338, 1341, 33 St.Rep. 887, 890, citing the annotator's note to section 94-3-102, R.C.M. 1947: " ' * * * the proper amount of force which may be used and remain justified -- [is] a question to be determined by the jury.'" There was sufficient evidence for the jury to determine defendant's fatal shooting of Curt Phillips and his wounding of Mike Phillips were not justified. Defendant's Issues 3 and 4 challenge the trial court's giving of certain instructions and refusal of others. Defen- dant contends two of his proposed instructions relative to the defenses of self-defense and defense of another should have been given. Four instructions directly concerning these matters, two offered by defendant and given over the state's objections and two offered by the state and given without objection, were given. The given instructions accurately and completely set out the law concerning self-defense and defense of another, and are not challenged by defendant. The refused instructions were merely repititious. Defendant contends the district court erred in refusing two of his proposed instructions on presumption of innocence and reasonable doubt. Seven instructions on these matters were given, and defendant does not argue they were insufficient or incorrect statements of the law. He argues that he was entitled to a "very short and brief statement" as to these requirements. Since the legal theories of these proposed instructions were covered by given instructions, it was not error for the trial court to refuse them. State v. Lukus (1967), 149 Mont. 45, 53, 423 P.2d 49. Defendant also challenges given Instruction No. 20, arguing his proposed Instruction No. 14 should have been given in its place. Defendant's proposed instruction No. 14 states: "A person acts knowingly with respect to his conduct or to an element of the offense when he is aware of his conduct or when he is aware of the existence of circumstances described by the statute defining the offense." As given, given Instruction No. 20 includes the above, and adds: "(When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of a high probability of its existence.)" Defendant argues the additional language further defining "knowledge" was prejudicial as having no relation to self-defense and defense of another. The crimes charged, mitigated deliberate homicide and aggravated assault, require "knowledge" or "purpose" on the part of the accused. The jury therefore was entitled to a complete definition of "knowledge" and the given instruction, taken almost verbatim from section 94-2-101,(27), R.C.M. 1947, was such a definition. Defendant's Issue 5 contends he was prejudiced by the state's attempts to have certain items admitted into evidence. The state sought to have a . 3 5 7 pistol, a holster, a leather sapp, and some bullet fragments, among other items, received during its case-in-chief. Defendant objected to their admission on the grounds of insufficient foundation, with the trial court reserving its ruling. During cross-examination of defendant the leather sapp was admitted; the other exhibits were ultimately refused. There was a connection between these items and the crimes charged. All were recovered at the scene of the shootings by the officers called to investigate. It was during the testimony of these officers that the state tried to lay a foundation for the admission of these items. The refusal of the items reflects the inability of the state to lay a proper foundation for the admission of evidence, not a bad faith attempt to prejudice the jury. None of the items was irrelevant, imma- terial, or otherwise inadmissible in an essential way, and defendant's conviction cannot be reversed on the grounds their admission was attempted. The judgment is affirmed. Chief Justice /I n
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
