STATE v KUTNYAK
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No. 32-462 I N T E SUPREME COURT O THE STATE O MONTAPJA H F F 1984 STATE O MONTANA, F Plaintiff and R e s p o n d e n t , -vsJOSEPH KUTNYAR, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f R a v a l l i , The H o n o r a b l e A r t h u r B. M a r t i n , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: J e f f r e y H. Langton a r g u e d , H a m i l t o n , Montana F o r 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 Dorothy McCarter a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a R o b e r t B . Brown, County A t t o r n e y , H a m i l t o n , Montana M a r g a r e t Tonon a r u g e d , Deputy County A t t o r n e y , H a m i l t o n , Montana - Submitted: Decided: Filed: - $$i 3= Clerk March 1 5 , 1984 J u l y 3 1 1984 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. This Fourth an is appeal Judicial conviction of from District, the crime following a jury t r i a l . the District County of of mitigated Court Ravalli, of the from t h e d e l i b e r a t e homicide The a p p e l l a n t , J o s e p h K u t n y a k , was sentenced t o t h i r t y years i n the S t a t e Prison. We affirm. The February number facts appellant 19, of rather to complicated concerning s p r i n g of 1978. and Prior 1982. shot the killed this Charles killing incidents relationship of there and the Hayes C r e e k Drainage. R a v a l l i County, were a contradictory two men T h e d e c e d e n t , H a y e s , had p u r c h a s e d t h e West Fork a r e a of on in the land i n known a s t h e Hughes H e had moved t o t h e S t a t e o f Montana f r o m Nevada w h e r e h e had s p e n t some t i m e i n a Nevada j a i l on a n a s s a u l t conviction after shooting a man in Following h i s a r r i v a l i n Montana, he b u i l t isolated occupied himself area to be by a bar fight. a cabin i n an and his wife. D u r i n g t h i s b u i l d i n g p e r i o d , h i s w i f e S u s a n worked i n Nevada and v i s i t e d him p e r i o d i c a l l y t o a s s i s t i n t h e b u i l d i n g o f the cabin. She d i d n o t move t o Montana u n t i l F e b r u a r y o f 1979. A c c o r d i n g t o t h e r e c o r d , t h e f i r s t c o n t a c t t h a t Hayes and h i s w i f e had w i t h a n y member o f t h e Kutnyak f a m i l y was i n t h e l a t e s p r i n g o f 1 9 7 9 when t h e y m e t D e b b i e Kutnyak i n D a r b y , Montana. They f e l t s o r r y f o r h e r i n a s m u c h a s s h e was o u t o f work and i n n e e d , home u n t i l Susan Hayes' and i n v i t e d h e r t o s t a y i n t h e i r she could f i n d a place t o l i v e . According t o t e s t i m o n y D e b b i e Kutnyak a n d h e r c h i l d s t a y e d a t t h e c a b i n f o r some t i m e . child S u s a n a s s i s t e d D e b b i e and h e r i n making a r r a n g e m e n t s t o g e t h o u s i n g . Debbie t o l d t h e Hayes f a m i l y t h a t h e r h u s b a n d had b e e n k i l l e d i n a mine a c c i d e n t i n Colorado. T h i s proved t o be f a l s e , f o r a s h o r t t i m e l a t e r , a f t e r D e b b i e l o c a t e d a c a b i n i n t h e Hughes C r e e k area, her husband joined her, and the family took up residence. Sometime l a t e r other persons i n September 1979, terrorized the appellant Hayes and several f a m i l y by and h i s a r r i v i n g a f t e r d a r k one n i g h t , s h o u t i n g and s h o o t i n g a t t h e c a b i n t h a t housed t h e a p p e l l a n t ' s f a m i l y . appellant and his during the night. wife, this went on According t o t h e for several hours The n e x t morning h e a n d h i s w i f e w e n t t o town t o s e e t h e c o u n t y a t t o r n e y t o h a v e a g g r a v a t e d a s s a u l t c h a r g e s f i l e d a g a i n s t Hayes and h i s c o m p a n i o n s . of these charges companions, five-year filed deceased the being was against put on As a result Hayes and probation his for a p e r i o d , was o r d e r e d n o t t o h a v e a n y g u n s i n h i s h o u s e o r i n h i s p o s s e s s i o n and was d i r e c t e d n o t t o h a v e more than .05% blood alcohol count at any time during his probation period. Following his conviction and placement on parole, t h e r e w e r e numerous i n c i d e n t s t e s t i f i e d t o by t h e a p p e l l a n t , S u s a n Hayes and o t h e r w i t n e s s e s f o r t h e S t a t e , s h o w i n g t h a t Hayes violated the testimony produced conditions at trial of there his parole. From is l i t t l e dispute the that Hayes v i o l a t e ? t h e c o n d i t i o n s o f h i s p a r o l e w i t h i m p u n i t y . His parole officer, S a l l y McRae, testified that she felt t h a t s h e had an i m p r o v i n g r e l a t i o n s h i p w i t h him d u r i n g t h e p e r i o d of p a r o l e b u t a c k n o w l e d g e d t h a t h e was " v e r y a n g r y a n d h o s t i l e t o w a r d law e n f o r c e m e n t . " S h e had a n a r r a n g e m e n t w i t h h i m t h a t he would r e p o r t i n o n c e a month. During t h e w i n t e r m o n t h s when t h e a r e a i n w h i c h h e l i v e d was s n o w e d - i n , h e would s e n d a r e p o r t o u t by m a i l which t h e P o s t a l S e r v i c e c o v e r e d twice a w e e k . In addition hostility of to Hayes the and above his facts concerning violations of the the parole p r o v i s i o n s , t h e r e was t e s t i m o n y by t h e s h e r i f f ' s o f f i c e t h a t it had Hayes some p r o b l e m s pertaining to in the miners Hughes C r e e k who were area involving exercising mineral r i g h t s i n t h e a r e a ; problems with p r i v a t e c i t i z e n s o r law enforcement people in the area; e i t h e r fishing or cross-country problems involving people s k i i n g who w e r e made a w a r e of Hayes' p o s s e s s i v e t e n d e n c i e s c o n c e r n i n g t h e p r o p e r t y n e a r h i s c a b i n i n v o l v i n g t h e u s e o f h i s Doberman dog. Following the 1979 a g g r a v a t e d assault incident, the r e c o r d shows t h a t t h e Kutnyak a n d t h e Hayes f a m i l i e s d i d n o t h a v e a n y c o n t a c t w i t h e a c h o t h e r u n t i l t h e summer o f 1 9 8 0 , when they m e t a t a hot springs j u s t over t h e d i v i d e from t h e i r p r o p e r t y a n d d e c i d e d t o t r y and r e e s t a b l i s h a f r i e n d l y relationship. From t h a t t i m e u n t i l H a y e s ' d e a t h , t h e r e was c o n t r a d i c t o r y t e s t i m o n y a s t o t h e r e l a t i o n s h i p between t h e parties. between Hayes' w i f e t e s t i f i e d i n d e t a i l a s t o t h e c o n t a c t s the parties, including but not limited to the e x c h a n g e of p r e s e n t s on b i r t h d a y s and C h r i s t m a s , e x c h a n g e o f d i n n e r s , h u n t i n g t r i p s and t r a d e s made f o r s u p p l i e s and f o r marijuana. Hayes grew m a r i j u a n a on t h e i r p l o t s f o r p e r s o n a l u s e and f o r t r a d i n g p u r p o s e s i n the area. testimony hunted that the two men There is a l s o together. Also, Kutnyak f a m i l y would s t a y w i t h S u s a n Hayes w h i l e the t h e men were out hunting. There was also testimony from other State witnesses showing that the two men appeared to get along and did not exhibit hostile behavior in their presence. On February 1, 1982, Ken and Lisa Schultz, neighbors of the Kutnyaks, stopped at the Kutnyaks' residence after returning late from town and stayed there until approximately 4 : 0 0 a.m. listening to the appellant's stories about Chuck Hayes. The appellant related many stories which would be repeated to other persons over the next several weeks concerning Chuck Hayes' alleged threats to the appellant and to his family; his efforts at trying to get the appellant to commit crimes for him and similar stories. Ken Schultz became so concerned about the situation that he reported it to Detective Pete Clarkson of the Ravalli County Sheriff's office. Schultz told him that there might be problems brewing in the West Fork area. Clarkson traveled to the West Fork shortly thereafter to meet with Ken Schultz and another neighbor, John Houston, both of whom told the detective the stories they had been told by the appellant. Neither of the men had independent information which they could supply to the detective other than what had been told to them by the appellant. Later, at a subsequent meeting at the home of John Houston, Clarkson took statements from Houston and Ken Schultz. After hearing the tapes of that meeting, it was agreed that the sheriff's office and the probation office still lacked probable cause for a search warrant, and a meeting at the appellant's home was set up for February 19, the date of the homicide. The purpose of this meeting was to attempt to observe Hayes in violation of his parole. On the early morning of February 19, 1982, Detective Clarkson, Probation Officer Sally McRae and Undersheriff Ron Fisher left the sheriff's office and arrived at the appellant's home at approximately 9:00 a.m., at which time appellant and his wife and children were present. The appellant had been made aware of their coming and agreed to their plan, which was to observe Hayes to see whether or not he had any kind of a weapon on him. After arrival at the appellant's home, the three law enforcement officers donned bullet-proof vests and took various positions in the cabin. Shortly after their arrival the appellant had his wife and their two children go to a home of a neighbor so they would not be in any danger. During appellant their wait, talk the "non-stop:' three officers listened reiterating previously been told about Hayes. what they to had In addition, during this time, the appellant told McRae and Clarkson in detail how he would kill Chuck Hayes. In his various talks with John Houston, the appellant had previously told Houston how he would shoot Chuck Hayes and that when he saw him he was going to bad mouth him and provoke him into drawing his gun. As the morning grew later and Hayes did not appear, Sally McRae said that it would be necessary for her to go to town because she had an appointment. She testified that they had been told by the appellant that Hayes would arrive for his mail anytime between 9:30 a.m. and 11:OO a.m. At 12:15 p.m. the three finally left to return to town. According to the appellant, Hayes arrived at the mailbox in front of his house fifteen minutes after officers' departure. the three law enforcement One of the interesting factors testified to by all three officers was that, after they notified the appellant that they were returning to town, he began to ask questions about what constituted self-defense. Before the officers left, they suggested that if Hayes came that day, the appellant should not answer the door. According to the appellant's statement, Hayes drove up on his snowmobile, parked it near the mailboxes, came to the Kutnyak cabin and rapped on his door. He testified that he did not answer the door and waited awhile until Hayes went back to his snowmobile. Appellant then ruffled-up his hair, opened the door and told Hayes that he had been sleeping. Hayes entered the cabin, took off his pistol holster and put it on the table. The two men then spent sometime together smoking marijuana and drinking. Appellant testified that, as Hayes was about to leave, Hayes insulted him and told him that he would kill him. Hayes picked up his gun, put it back on and walked to his snowmobile. Appellant followed him outside, carrying his 12mm semi-automatic pistol in the back of his pants. The testimony concerning what happened, of course, is that of the appellant. He testified that after Hayes got next to the snowmobile, he pulled out his gun and shot Hayes five times. He then claimed, in a statement made to the sheriff, that he walked over to Hayes, tapped Hayes' gun back into his holster, walked back into the cabin, had a cup of coffee and then went to tell a neighbor what had happened. The neighbor notified the sheriff's office. The deputies arrived at the scene about an hour and a half to two hours later, just before dusk. They arrested the appellant at the scene and placed him in the Ravalli County jail. At the time of the arrest, Kutnyak was advised of his Miranda rights and he gave the officers statements as to what had happened. Approximately asked a month after his arrest, to see the Sheriff of Ravalli County. appellant When the sheriff arrived at his cell, the appellant began clarifying his statements made the day of the shooting. He asked the sheriff attempted to help reenact the shooting and demonstrate the transactions occurring at that event. to This was done without a Miranda warning or having any attorney present, even though he had previously been assigned counsel. In preparation for trial, the trial court ordered the State to make available all of its material in the case. Later, after the jury verdict and sentence, the sheriff's office discovered a file that included a letter from some cross-country skiers complaining that Hayes and his dogs had harrased them. That letter was not received by counsel prior to trial. An investigation revealed that one of the deputy sheriffs had, for investigative purposes, set up a file of people who lived in contributing to disturbances. the county who might be The deputy had permission from the sheriff to have such a file, and it was generally known in the sheriff Is office that the file was available. At the time the request was made for all material the county attorney had concerning the case, this file was overlooked and was not produced until after trial at which time counsel for the appellant moved for a new trial. Five issues are raised on appeal: (1) Was the jailhouse statement made by appellant to the sheriff admissible? (2) Did the court err by admitting the evidence of appellant's alleged prior threats against an unrelated third party? (3) Did the court err in denying appellant's motion for a new trial following the discovery of a file that was not turned over him? (4) Did the court violate appellant's constitutional rights by forcing him to testify in order to maintain his self-defense instructions? (5) Did the State present sufficient evidence to support a conviction of mitigated deliberate homicide? The first issue is whether there was a violation of appellant's right to presence of counsel during jailhouse statement to Sheriff Dye. his Due to the unusual facts of this case, the trial judge ordered counsel to brief the law on this point and held a hearing on the same before ruling that the statement to the sheriff was admissible. It is in the appellant's permitting contention Sheriff Dye to that the testify court about a erred jailhouse statement made by the appellant because there was no Miranda warning given, and because counsel was not present at the time of the statement and therefore there was a violation of the appellant's Sixth Amendment right to counsel. The District Court properly denied appellant's motion to suppress. We hold that, when the appellant asked to talk to Sheriff Dye, he volunteered the information about his participation coercion. in the crime in an atmosphere free from He had been previously given a Miranda warning at the time of his first confession. Therefore, it was not error to admit the evidence of his admissions at trial. Rhode Island v. Innis (1980), 446 U.S. 64 L.Ed.2d 297; Brewer v. Williams (1977), 430 U.S. S.Ct. 1232, 51 L.Ed.2d U.S. 291, 100 S.Ct. 433, 94 S.Ct. 1682, 387, 97 424; Michigan v. Tucker (1974), 417 2357, 41 L.Ed.2d 182; Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d Spano v. United States (1959), 360 U.S. 3 L.Ed.2d 387 N.E.2d 1265; Commonwealth v. 527; 29 Am.Jur.2d 246; 315, 79 S.Ct. 1202, 377 Mass. 552, -J&hat Evidence, section 622. We also hold that the testimony cannot be excluded as the fruit of a suppressed statement. Absent a direct infringement on Fifth Amendment rights, a violation of the rules of Miranda will not support the exclusion of evidence derived from the statement, Tucker, supra. If appellant's statement had been induced by police threats or promises of leniency, the statement would evidence derived inadmissible. be involuntary See Muham, supra. and the However, here the trial court determined, after a hearing, that the statement made was voluntary, and we will not disturb the court's findings. Since the statement cannot be traced back to either a Fourth or Fifth Amendment violation, we hold that its admission was proper. Last but not least the State counters the argument of the appellant that Rule 701, Mont.R.Evid. required denial of the admission of the sheriff's statement. appellant argued that the sheriff's the The statement was a self-serving declaration and was not admissible as proof of the facts asserted, regardless of whether they were implied by acts or conduct, were made orally or whether reduced in writing, citing 29 Am.Jur.2d Evidence, section 622. Rule 701 of the Montana Rules of Evidence states: "If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clearer understanding of his testimony or the determination of the fact and issue." We hold that the evidence was offered to provide the jury with a complete accounting of the conversation between the appellant and Sheriff Dye. when error is alleged. must be demonstrated. Prejudice is not presumed If error occurred, then prejudice Here no error occurred. If there was error, it was harmless and not grounds for reversal. State v. Lapp (Mont. 1983), 658 P.2d 400, 40 St.Rep. See 120; State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343. The second issue is whether the District Court erred in allowing testimony, contrary to prior court ruling and over objection, concerning alleged prior threats by appellant against an unrelated third party. Prior to trial, counsel for the appellant submitted a motion to exclude prejudicial evidence. He requested, in relevant part, that the court instruct the prosecutor and her witnesses not to directly or refer to, or question, " . . . indirectly mention, any matters or things pertaining to Defendant's prior prosecutions, convictions, arrests, and any uncharged criminal acts of Defendant or any defense witnesses on the basis of Rule 404 Montana Rules of Evidence and cases thereunder." Rule 404(b), Mont.R.Evid., provides as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Prior to the opening of the State's case, the court granted the motion in limine as to prior bad acts of the appellant. asking a During cross-examination, the State, after series of questions concerning the appellant's relationship with his neighbors, asked these questions: "Q. [counsel for the State] Specifically, did you ever threaten any of your neighbors? "A. [appellant] I don't believe I did. "Q. Never? "A. Never." At that time, counsel for the State asked the trial judge whether she could approach the bench, saying that she intended to get into an area where a preliminary ruling might be needed. Subsequently, respective counsel met in chambers, and the following dialogue took place: "MS. TONON: [counsel for the State] At the commencement there was a motion granted by the court to prevent the prosecution from discussing any prior crimes of the defendant. Before getting in it, so I don't get jumped on until I get into it, I intend to ask Mr. Kutnyak if he had any reason to dislike the Gosses or any reason to dislike the Houstons. Should he answer no, I then intend to indicate that he's telling a falsehood and he obviously did have a reason to dislike the Gosses because of the cow shooting. "MR. LANGTON : [counsel for appellant] Why is it relevant? "MS. TONON: Why is it relevant? The ultimate goal is that every single feeling or comment he has expressed about Chuck Hayes is what he, himself, was feeling, applied t h a t he that, I testify Gosses, threat. and h e j u s t t u r n e d i t a r o u n d a n d It's obvious d i s l i k e d t h e Gosses. Based o n i n t e n d t o h a v e a w i t n e s s who w i l l t h a t he threatended t o k i l l t h e s i n c e h e ' s j u s t d e n i e d making a i t t o Chuck Hayes. "THE C O U R T : This doesn' t c o n v i c t i o n o r c r i m e by him. indicate "MR. LANGTON: T h e r e was a c h a r g e b r o u g h t by t h e G o s s e s a g a i n s t Mr. K u t n y a k ' s w i f e , Your Honor, i n r e l a t i o n t o s h o o t i n g some cattle. She was t r i e d and a c q u i t t e d by a jury. I d o n ' t s e e anywhere-- "THE COURT: The i n c i d e n t i t s e l f may h a v e some r e l e v a n c e . I d o n ' t know what you need t o b r i n g , u n d e r t h e c i r c u m s t a n c e s , t h e a c q u i t t a l o u t o r , i f you d o n ' t wa.nt t h a t d o n e , you may want t o b e t h e o n e t o bring t h a t out. "MS. TONON: The i n c i d e n t w i t h H o u s t o n s t h a t I a n t i c i p a t e John Houston, on r e b u t t a l , would t e s t i f y t o , d e p e n d i n g o n what Mr. Kutnyak s a y s , t h a t h e was t h e one t h a t t u r n e d i n J o e [Kutnyak] f o r t h e t h e f t o f some l u m b e r and h e a l s o s e t up a r o a d b l o c k f o r some p o t e n t i a l p o a c h i n g , which t u r n e d o u t t o b e n o t h i n g , b u t t h a t would b e a r e a s o n f o r J o e t o h a v e ill f e e l i n g s a g a i n s t t h e H o u s t o n s , which h e a l l o f a s u d d e n e x p l a i n s w h a t Chuck had a g a i n s t t h e Houstons. "MR. LANGTON: Counsel i s t r y i n g t o s l i p i n , t h r o u g h t h e back d o o r , a whole s t r i n g o f a l l e g a t i o n s and a l l e g e d c r i m e s which t h i s c o u r t h a s a l r e a d y r u l e d on t h a t c a n n o t b e b r o u g h t up. "MS. TONON: Not f o r t h e prove motive o r i n t e n t . "MR. LANGTON: Why m o t i v e t o k i l l Hayes? would trial that but to prove "THE COURT: As I interpret that statute you c a n n o t b r i n g up a l l e g e d c r i m e s c o m m i t t e d by t h e d e f e n d a n t h i m s e l f . Now, i f you c a n t i e d i f f e r e n c e s b e t w e e n t h e s e p a r t i e s t h a t may h a v e r e s u l t e d i n t h e p r o s e c u t i o n o f someone e l s e , I s e e no g r o u n d s p r e v e n t i n g you f r o m d o i n g s o . "MS. TONON: A l l I i n t e n d , a t t h i s p o i n t , i s w e t i e i t up w i t h a n o t h e r w i t n e s s , bad whether h e had a n y p a r t i c u l a r f e e l i n g s a g a i n s t Mr. H o u s t o n , and i f h e s a y s n o , t h e n I would a s k i f h e ' d had a n y r u n - i n s w i t h Mr. Houston and h i s a n s w e r s t o those goes t o h i s c r e d i b i l i t y . "MR. LANGTON: T h a t would b e p u t t i n g h i m i n t h e i n t o l e r a b l e p o s i t i o n where t h e r e i s no-The S t a t e i n t e n d s t o b r i n g u p p r i o r crimes. The o n l y t h i n g t h a t t h e S t a t e h a s , t h e r e is n o t any l e g i t i m a t e p o s s i b l e m o t i v e t o k i l l Hayes. Now, t h e f a c t t h a t h e had d i s p u t e s w i t h Mr. Goss o v e r some c a t t l e w i t h i n h i s g a r d e n , w i t h Mr. H o u s t o n o v e r a l l e g e d p o a c h i n g h a s nothing t o do w i t h any m o t i v a t i o n t o k i l l Hayes and I would o b j e c t s t r e n u o u s l y . I think it goes t o "THE C O U R T : I ' m g o i n g t o a l l o w you t o impeachment. p r o c e e d on t h i s w i t n e s s . " Thereafter witnesses on cross-examination, the State elicited from t h e f a c t t h a t some t h r e a t s had b e e n made by t h e a p p e l l a n t a g a i n s t S t e v e Goss and J o h n H o u s t o n . The a p p e l l a n t a r g u e s t h a t t h e c o u r t e r r e d i n a l l o w i n g t h e t e s t i m o n y t h a t a p p e l l a n t had made p r i o r t h r e a t s t o t h i r d parties, in a violation of a p p e l l a n t c i t e s S t a t e v. 37 S t . R e p . P.2d 957, 2057,and Rule 404, M0nt.R.Evi.d. C a s e (Mont. 1 9 8 0 ) , 6 2 1 P.2d The 1066, S t a t e v. J u s t ( 1 9 7 9 ) , 184 Mont. 2 6 2 , 602 i n s u p p o r t o f h i s a r g u m e n t t h a t t h e e v i d e n c e was a d m i t t e d w i t h o u t a n y t e n d e n c y t o e s t a b l i s h a common s c h e m e , p l a n o r s y s t e m ; t h e r e f o r e , i t was i n h e r e n t l y p r e j u d i c i a l . The S t a t e c o n t e n d s t h a t t h e t e s t i m o n y was g i v e n n o t t o show t h e s i m i l a r i t y o f o t h e r crimes o r wrongs c o m m i t t e d by the appellant, b u t t o impeach h i s c l a i m t h a t h e g o t a l o n g w i t h h i s n e i g h b o r s and n e v e r t h r e a t e n e d them. r e l i e s on S t a t e v. St.Rep. under 356, "other for Austad support purposes" (Mont. that as a Doing s o i t 1 9 8 2 ) , 6 4 1 P.2d e v i d e n c e may be means of 1 3 7 3 , 39 admissible impeachment. In A u s t a d , s u p r a , t h i s C o u r t n o t e d : "The r u l e s o f e v i d e n c e were not intended t o muzzle the State against the defendant's deliberate attempts to mislead jury members by lying to them and answering specific questions." St.Rep. at 369. 641 P.2d at 1384, 39 Here the appellant attempted to do just that in his statements that he got along with his neighbors. No questions were asked concerning prior misdemeanors or felonies. Rather, the question was an attempt to show that he was a not a peaceable member of the community. the evidence admissible for that purpose. We hold State v. Case, supra, and State v. Just, supra, are distinguishable because those cases involved attempts to show similarity of crimes. The third specification of error failure of the prosecution to turn is whether over the the sheriff's "intelligence" file to appellant's counsel warranted a new trial. In preparation for trial, counsel for the appellant made a demand on the county attorney's office that all information concerning the case be made available to him in preparation for trial. over everything The county attorney's office turned it had on the case to defense counsel. Several months after the conviction it was discovered that there was a copy of a petition by a number of neighbors in the area concerning Charles Hayes and the fact that he was an ex-convict and possession. County was allowed to have firearms in his In addition, it was found that in the Ravalli sheriff's office there was an undisclosed "intelligence" file on the decedent, Charles Hayes. The file had been compiled by sheriff's deputies during 1979 and was in the custody and control of Deputy Sheriff Pete Clarkson, the chief investigating officer in connection with this case. The "intelligence" file was simultaneously discovered by the assistant county attorney and defense counsel in a search of the sheriff Is department files on January 12, 1983, some five months after the conviction. The appellant, on the basis of this newly discovered information, filed a motion to stay the appeal and remand the case to the District Court for an evidentiary hearing on whether a new trial was warranted. Following the receipt of briefs and a hearing before Judge Martin, the trial judge, a new trial was denied. It should be noted that the file contained the petition by the neighbors and correspondence between the Ravalli County sheriff's office and the sheriff in Pioche, Nevada, where the Hayes family had previously lived and Charles Hayes had been involved in a shooting in a local bar. The appellant claims the State suppressed the "intelligence" file purposely and that the file contained evidence about Hayes' bad character. In addition, appellant alleges that had he had the names of the people that signed the petition, he would have called them as witnesses as to Hayes' bad character. The State replied that the material in this file was cumulative of evidence that came in during the trial and therefore not prejudicial. In addition, the State denied it purposely suppressed the file in question. As previously noted, this Court ordered a hearing by the trial court on the question raised by the appellant. Following an extended hearing, the trial court made findings of fact and conclusions of law, and denied a new trial. In its concl~usionsof law, the court found that: (1) There was no deliberate suppression by the sheriff or the county attorney of any of the appellant's exhibits offered and received in the hearing. (2) The failure of the State to provide these exhibits was caused by inadvertence and was not prejudicial to the appellant. There was abundant evidence produced by both the appellant and the State, as to what the absent witnesses would or could have testified. been given by the Any evidence that might have signatories of the petition would therefore be cumulative. (3) While the evidence that the signatories might have given relating to the appellant's prior threa.ts and propensities was material to finding the appellant guilty of a lesser offense of mitigated deliberate homicide, it was not material to the defense of use of justifiable force under the circumstances. The testimony would not alter the court's sentence and judgment. (4) There was no reasonable doubt of appellant's guilt and the additional evidence that might have been adduced by persons mentioned in the "intelligence file" would merely be cumulative. We have carefully examined the so-called secret file and the evidence contained therein and find no error on the part of the district judge in refusing to grant a new trial. This Court in State v. Higley (Mont. 1980), 621 P.2d 1043, 37 St.Rep. where the trial 1942, in ruling on a similar situation, court refused to grant a new concerning alleged new evidence, noted: "Section 46-16-702, MCA, governs the District Court's decision to grant a new trial. The district judge may do so if 'required in the interest of justice. ' That decision is based on the discretion of the trial judge and will not be trial overturned unless this Court finds an abuse of discretion. State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346 at 351. "This Court has noted that applications for new trials on the ground of newly discovered evidence are not favored, for the reason that the defendant has already had ample opportunity to prepare and present his case. State v. Greeno (1959), 135 Mont. 580 at 586, 342 P.2d 1052 at 1055. However, in certain instances, the information discovered may require a new trial. In Greeno, supra, this Court set out certain rules: "'(1) That the evidence must have come to the knowledge of the applicant since the trial; "'(2) that it was not through want of diligence that it was not discovered earlier; "'(3) that it is so material that it would probably produce a different result upon another trial.' [Citations omitted.] "Certainly, each case must be decided on its own facts. In the present case, we find that the evidence could have been discovered with due diligence." 621 P.2d at 1055, 1056, 37 St.Rep. at 1955, 1956. The District Court did not abuse its discretion in denying the motion for a new trial. of newly discovered evidence, the Despite the existence judge was correct in finding inferentially under (3) of Greeno, that it was not so material that it would have produced a different result upon another trial. The next issue concerns whether the District Court erred by compelling the appellant to testify, contrary to his right against self-incrimination or pain of forfeiture of his affirmative defense of justifiable use of force. In the of case at bar the appellant asserted justifiable use of force. the defense He argues that under Rule 404, Mont.R.Evid., t h e d e f e n s e may i n t r o d u c e e v i d e n c e t e n d i n g t o show t h e d e c e d e n t was l i k e l y t o be t h e f i r s t a g g r e s s o r d u e to his reputation violence. W e Self-defense and not do specific agree acts with of turbulence appellant's or argument. i s a n a f f i r m a t i v e d e f e n s e and o n c e r a i s e d h e assumes t h e burden of p r o o f . I f he d e s i r e s t o r a i s e t h i s d e f e n s e b u t c a n n o t p r o v e i t w i t h o u t h i s own t e s t i m o n y , that is h i s choice. Prior t o t h e o p e n i n g of the State's case, the court stated: "Now, w e had some m o t i o n s h e r e , a t l e a s t , going t o determine e a r l y . The o n e I h a v e n ' t r u l e d o n , t h e Motion i n Limine, I ' m going t o deny t h a t motion w i t h qualifications. The C o u r t i s g o i n g t o assume, b a s e d upon t h e n o t i c e t h a t h a s been g i v e n , t h a t t h e D e f e n d a n t Kutnyak w i l l t a k e t h e w i t n e s s s t a n d and t h e r e b y l a y a foundation f o r any examination p r i o r t o t h a t of o t h e r w i t n e s s e s c a l l e d by t h e S t a t e o r t h e D e f e n s e . If the Defendant should choose n o t t o t a k e t h e s t a n d , then he w i l l run t h e r i s k of being d e n i e d an i n s t r u c t i o n on s e l f - d e f e n s e . Now, t h a t j u s t a b o u t c o m p e l s him t o t a k e t h e s t a n d i f he wants t o u s e it." I'm At that point, the defense counsel neither objected t o the r u l i n g of t h e t r i a l judge nor a s s e r t e d t h a t h i s c l i e n t c o u l d n o t be compelled t o t e s t i f y t o e s t a b l i s h s e l f - d e f e n s e . In a d d i t i o n , h e n e v e r s t a t e d d u r i n g t r i a l o r on a p p e a l t h a t h e would n o t h a v e had h i s c l i e n t t e s t i f y i f t h e t r i a l j u d g e had n o t made t h a t r u l i n g . T h i s C o u r t i n S t a t e v . Logan ( 1 9 7 0 ) , 1 5 6 Mont. 4 8 , 473 P.2d 833, h e l d t h a t u n d e r o u r law t h e i s s u e o f s e l f - d e f e n s e and the aggressor decedent's admitted. prior be raised threats and Until self-defense before acts of evidence violence of may the be and t h e q u e s t i o n o f who was t h e aggressor is brought i n t o evidence, such evidence is n o t relevant. We noted in both State v. Breitenstein (1979), 180 Mont. 503, 591 P.2d 233,and State v. Jennings (1934), 96 50, Mont. discretion 28 P.2d to 448, allow that such foundation has been laid. the trial testimony judge when has the the proper Here the trial judge determined that a proper foundation for evidence of Hayes' reputation for violence and turbulence was not established at the time of the State's motion in limine. However, he denied the motion with the understanding that defense counsel would later establish the foundation; that appellant would testify as to his own fear of apprehension based on Hayes' reputation; and that he would need to have other witnesses testify as to Hayes' violence of which the defendant had no knowledge. Under the circumstances of the homicide here, the facts were such that without the appellant's testimony, he could never have met his burden of proof of self-defense or that Hayes was the aggressor. If the appellant's testimony were to be disregarded in the event error was found, the record could not support reasonable doubt on the part of any rational juror as to his guilt on the basis of self-defense, and the record would still contain substantial evidence to support the conviction. must be disregarded. Therefore, any error in this regard See State v. Grady (1975), 166 Mont. 168, 531 P.2d 681. This Court has previously held that there are cases in which the appellant must testify to raise the self-defense and meet this burden of proof. issue of See Logan, supra. Here the trial judge determined that the appellant would need to testify as to his personal knowledge of Hayes' violent propensities and prior threats in establishing the aggressor, in order to lay the proper corroborating evidence thereof. foundation for The fact that the appellant had to testify or else risk not sufficiently establishing self-defense does not, under these circumstances, create a constitutional denial of his privilege against self-incrimination. Finally, appellant argues that the conviction is not supported by substantial evidence because the State did not prove beyond a reasonable doubt that appellant had reasonable belief that deadly force was unnecessary. the decisions of both this Court and no Under the United States Supreme Court, the standard of review of the sufficiency of evidence is: "Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable (1979), 443 U.S. doubt." See, Jackson 307, 319, 99 S.Ct. v. Virginia 2781, 2789, 61 L.Ed.2d 560, 573; State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v. Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040. "Substantial evidence" is defined as "such relevant evidence as a reasonable mind adequate to support a conclusion." might accept as See State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; Wilson, 631 P.2d at 1278, 38 St.Rep. at 1047. Reviewing the record, we evidence was presented to the jury. is that: find that substantial In summary the evidence (1) The appellant knowingly or purposely provoked use of force by Hayes against himself, that he deliberately a r r a n g e d t o m a n i p u l a t e Hayes i n t o d r a w i n g h i s gun s o Kutnyak c o u l d s h o o t him. ( 2 ) The a p p e l l a n t f a i l e d t o e x h a u s t e v e r y r e a s o n a b l e means t o e s c a p e t h e d a n g e r . Deputy Sheriff Clarkson, In h i s statement t o made s h o r t l y a f t e r t h e homicide, Kutnyak s t a t e d : " [ I ] £ I n e e d you Mr. t o p u l l o u t your g u n m i s t e r , t o p u l l o u t y o u r g u n and u s e i t on m e , t h e n f - go ahead d o i t , i f t h a t ' s what I r e q u i r e f o r p r o o f , g o a h e a d do i t , d o n ' t t e l l m e your g o i n g t o k i l l m e , b e c a u s e you h a v e b e e n t e l l i n g me t h a t years. Do i t . " for 2 f ( 3 ) John Houston, Kutnyak talked a neighbor of t o h i s home for four t h e a p p e l l a n t , had i n v i t e d two d a y s b e f o r e the shooting. They and d u r i n g t h a t t i m e Kutnyak hours, told him t h a t h e was g o i n g t o p r o v o k e Hayes i n t o d r a w i n g h i s g u n , and t h e n h e would s h o o t Hayes. ( 4 ) On t h e d a y b e f o r e t h e s h o o t i n g , Kutnyak made a s t a t e m e n t t o D e p u t y P e t e C l a r k s o n ( 5 ) On t h e m o r n i n g o f i n d i c a t i n g t h a t h e m i g h t s h o o t Hayes. the shooting, Probation waiting Hayes. be Officer for testified Deputy Hayes that Clarkson, Undersheriff S a l l y McRae were to Clarkson arrive. Kutnyak described Fisher, a t Kutnyak's how h e and McRae planned to and house each kill C l a r k s o n t e s t i f i e d t h a t Kutnyak s t a t e d t h a t h e would sitting to the right of Hayes, t h e n h e would p h r a s e t h a t would c a t c h Hayes o f f g u a r d . utter a H e would t h e n g r a b Hayes' r i g h t arm, d r a w h i s a u t o m a t i c and s h o o t him i n t h e face. McRae t e s t i f i e d t h a t Kutnyak d e s c r i b e d w h e r e h e and Hayes would be s e a t e d , t h a t Kutnyak would make a comment t o him t h a t " h e s h o u l d s t a . r t w e a r i n g a d r e s s , " else" t o provoke Hayes into reaching for and " s o m e t h i n g h i s gun. Then Kutnyak was g o i n g t o g r a b H a y e s ' arm w i t h o n e hand and p u l l h i s gun w i t h the other and s h o o t him in the face. (6) Clarkson, himself, asked Fisher and McRae, each t e s t i f i e d about shooting in as as we11 t h a t during the defendant t h a t morning, Kutnyak ( 7 ) Kutnyak's self-defense. own t e s t i m o n y e s t a b l i s h e d p r o v o c a t i o n o f Hayes j u s t p r i o r t o t h e shooting. He knew t h a t Hayes was n o t t o b e t r u s t e d a n d was H e a l s o knew t h a t u n p r e d i c t a b l e w i t h g u n s when h e d r a n k . Hayes did not like the police, that he tended to react v i o l e n t l y w i t h p e r s o n s who d i s c u s s e d him w i t h t h e p o l i c e , and t h a t h e would b e i n p h y s i c a l d a n g e r i f h e l e t H a y e s know t h a t he t a l k e d ( 8 ) Kutnyak a l s o t o t h e p o l i c e a b o u t him. knew t h a t t h e m o r n i n g o f the shooting, Hayes was i n a b a d mood and was d r i n k i n g a l c o h o l and smoking m a r i j u a n a . After Hayes had b e e n d r i n k i n g and smoking for (9) two h o u r s , Kutnyak t o l d Hayes f o r no a p p a r e n t r e a s o n t h a t H o u s t o n h a d s a i d h e s h o u l d wear a d r e s s w i t h h i s p o n y t a i l - - H o u s t o n never said any such thing. According to had Kutnyak's t e s t i m o n y , Hayes g o t mad, t o l d Kutnyak h e was g o i n g t o k i l l him and slammed o u t o f t h e house. Kutnyak f o l l o w e d H a y e s o u t s i d e and t o l d him t h a t t h e p o l i c e had b e e n t h e r e a n d t h a t he s h o u l d g o t o h i s c a b i n and s t a y t h e r e . (10) Finally, a f t e r s h o o t i n g H a y e s , Kutnyak w a l k e d up t o H a y e s ' body a n d t a p p e d t h e end o f H a y e s ' g u n w i t h h i s f i n g e r s . V i e w i n g t h i s e v i d e n c e and t h e r u l e s s e t f o r t h i n t h e above cases, substantial conclude we find evidence beyond a that for the a record rational reasonable doubt c o n t a i n s more trier that of the than fact to appellant d e l i b e r a t e l y p r o v o k e d Hayes i n t o a s i t u a t i o n w h e r e h e c o u l d s h o o t him. The judgment of t h e t r i a l c o u r t is a f f i r m e d . W concur: e \ Chief J u s t i c e Justices I concur i n t h e r e s u l t . Mr. J u s t i c s John C . Sheehy, M r . J u s t i c e Franlc B . M o r r i s o n , J r . , aild M . J u s t i c e D a n i e l J . Shea d i s s e n t and w i l l f i l e r written dissents later. D I S S E N T O F MR. J U S T I C E J O H N C. SHEEHY: -_-_-----__--_---__-------------------------------No. 82-462 S t a t e v. Dated: Kutnyak July 1 6 , 1 9 8 4 Mr. Justice John C. Sheehy, dissenting: My dissent in this case is based principally on the admission of testimony that Kutnyak had threatened two of his neighbors, although the District Court had. earlier granted a in motion. - limine that would foreclose such testimony. The State here violated the court's order by asking prohibited questions of Kutnyak, expecting, and getting answers to which it could then claim a right to impeach. In my book, that is trial by trickery. Rule 404 (b), M.R.Evid., crimes, wrongs or acts to disallows evidence of prove the character other of the defendant to show that he acted in conformity therewith. Here the State abused that ru1.e. Any threats defendant may have made to others tend only to show his character, that is, that defendant was a combative or non-peaceful man. Under Rule 404(b), that evidence is not relevant. The State and many District Courts evince a tendency to allow the jury to review the whole of a defendant's life to look for a particle that supports conviction. A different view of a trial should prevail, one confined to the crime charged, and the facts and circumstances connected to it. Extrinsic evidence of other acts to prove intent or character should never be allowed unless relevant, unambiguous, and having a logical nexus to the crime chargel. Cohn v. Papke (9th cir. 1981) , 655 F.2d 191; U.S. Dotha.rd (11th cir. 1982) , , ) R Justice y/
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