No. 14307
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RICHARD LEE BIER,
Defendant and Appellant.
Appeal from: District Court of the Eighth Judicial District,
Honorable Joel G. Roth, Judge presiding.
Counsel of Record:
For Appellant:
Cameron Ferguson argued, Public Defender, Great Falls,
Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Mary B. Troland argued, Assistant Attorney General,
Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted: November 27, 1978
Filed:
MAR 1979
& @ . Clerk
Mr. Justice Daniel J. Shea delivered the opinion of the
Court.
Defendant appeals from a conviction of negligent
homicide, section 95-4-104, R.C.M. 1947, now section
45-5-104 MCA, following a jury trial in the Cascade County
District Court.
The facts show that in the early morning of June 25,
1977, Deputy Sheriff Donovan responded to a call concerning
a possible suicide at the Red Wheel Trailer Court in
Great Falls. He arrived at about 1:30 a.m. and noticed
defendant Richard Bier wave and holler at him to hurry.
Donovan entered the trailer and saw defendant's wife,
Sharon Bier, on the floor in the doorway between the bed-
room and hall of the trailer. She was bleeding from a neck
wound. Defendant told Donovan that his wife shot herself.
A .357 Magnum revolver lay on the bed in the bedroom.
Moments later, an ambulance arrived. Temporary aid was
administered and Sharon Bier was transported to the hospital
accompanied by the defendant. Deputy Donovan stayed behind.
He washed his hands in the trailer's bathroom and noticed
b l ~ o din the basin and on a cabinet. He photographed the
interior of the trailer, identified and took custody of
the gun, bullets and spent casing, and saw that the two
minor children present were cared for before proceeding to
the hospital.
When Deputy Donovan arrived at the hospital, he placed
each of Mrs. Bier's hands in plastic bags and taped them
shut to preserve any evidence of gun powder. He then located
defendant for questioning. After being read his rights,
defendant related the events leading up to the shooting.
Defendant stated he and his wife had been at the
st~ckcar races all evening and consumed a total of three
six-packs of beer. Mrs. Bier, normally a mild social drinker,
-2-
finished two six-packs. When the couple returned home,
an argument ensued. Intent on leaving and avoiding further
quarrel, defendant went into the bedroom to ready his
departure. Mrs. Bier stood in the bedroom doorway, apparently
to block his exit. Defendant reached into the closet,
pulled a gun from its holster, cocked it and cast it on the
bed stating words to the effect that to stop him she'd have
to shoot him. Defendant turned away and his wife picked
up the gun, held it with both thumbs on the trigger and
pointed it at her head. Defendant shouted "that damn thing's
loaded" and either grabbed or slapped at the gun to avert
its aim. It discharged and Mrs. Bier collapsed on the floor.
Pursuant to police procedure, Deputy Donovan took hand
swabs of defendant and his wife for analysis of possible gun
powder residue by the proper authorities. The test results
sh~wedno appreciable level of residue from which to conclude
either Mr. or Mrs. Bier was holding the gun when it discharged.
Defendant had washed his hands while his wife was being ad-
ministered medical aid at the trailer. Mrs. Bier never re-
gained consciousness and died six days after the shcoting.
About a month after the incident, defendant was
questioned at the Cascade County Sheriff's Office. He
essentially recounted the statement previously given except
that he thought maybe he'd grabbed rather than slapped
at the gun when it discharged, and that perhaps this had
caused the gun to fire.
On October 17,defendant was charged with negligent
homicide and on October 19, he entered a plea of not guilty.
The State's case consisted of Deputy Donovan, two
expert witnesses from Washington, D.C., and the ambulance
attendant who answered the emergency call at the Bier
residence. One of the experts testified to the slight
force necessary to discharge a cocked . 3 5 7 magnum revolver
and that the handgun fired at a distance of one foot
produced a powder dispersal pattern of four to five inches in
diameter. Exhibits revealed a four-inch dispersal
pattern on Mrs. Bier's neck. The other expert witness
reported the results of the hand swab analysis conducted
in Washington, D.C. He could not determine who held
the gun when it fired.
Defendant testified on his own behalf. He was a
career Air Force Sergeant and the father of three minor
children by Mrs. Bier. He stated on direct examination,
"I don't know if I made her hands squeeze the trigger or
if she squeezed the trigger, or how it happened." On
cross-examination he admitted that he was aware of his
wife's intoxicated condition and should have realized
the danger involved.
During defendant's testimony, defense counsel
attempted to s h ~ w
through defendant's testimony and diagrams
that the angle of the bullet's path was such as to preclude
any possibility that defendant held the gun when it dis-
charged. The County Attorney objected to this line of
questioning on the ground that evidence relating to the
bullet's angle was a technical subject requiring the
testimony of an expert. Following an intense exchange
between court and counsel, the court ruled that all
evidence relating to bullet's angle would be excluded as a
technical subject admissible only through expert testimony.
Defendant raises five issues for our review:
(1) Whether the facts presented preclude a finding of
negligent homicide as a matter of law.
(2) Whether the District Court abused its discretion
by denying defendant's motion for a jury view of the mobile
home in which the shooting occurred.
(3) Whether the trial judge's statements to the jury
that defendant's demonstrative evidence was "purely his
say-so" and "purely his concoction" require reversal.
(4) Whether defendant's testimony as to the angle of
the bullet hole was properly excluded as a subject requiring
expert testimony.
(5) Whether the prosecutor's statement in closing
argument that it "does not believe that Mrs. Bier shot
herself" constitutes reversible error.
Defendant contends the State failed to prove the
required mental state and causation elements for a prima
facie case of negligent homicide. Concerning the mental
element, defendant argues that his conduct did not evidence
a conscious disregard for his wife's life. Negligent homicide
is defined by statute as fcllows:
"(1) Criminal homicide constitutes negligent
homicide when it is committed negligently.
"(2) A person convicted of negligent homicide
shall be imprisoned in the state prison for
any term not to exceed ten (10) years."
Section 95-4-104, R.C.M. 1947, now section
45-5-104 MCA.
Negligence is defined as follows:
.
". . [A] person acts negligently-
with respect to a result or to a cir-
cumstance described by a statute defining
an offense when he consciously disregards
a risk that the result will occur or that
the circumstance exists or - he disregards
- if -
a - - of which he should be aware that the
- risk
result will occuror that the circumstance
exists. The risk must be of such a nature
and degree that to disregard it involves a
gross deviation from the standard of conduct
that a reasonable person would observe in
the actor's situation. Gross deviation means
a deviation that is considerably greater than
---of ordinarv care. Relevant terms such
lack
- -- .
. -
as 'negligent' a n d i t h negligence' have the
same meaning." (Emphasis added.) Section
94-2-101(31), R.C.M. 1947, now section 45-2-101
(31) MCA.
In State v. Kirkaldie (1978), Mont . , 587 P.2d
1298, 1304, 35 St-Rep. 1532, 1538, this Court explained
that "[ulnlike deliberate homicide, which requires that
the offense be committed purposely or knowingly, negligent
homicide does not require such purpose or knowledge.
Negligent homicide only requires a gross deviation from
a reasonable standard of care." A gross deviation under
the statutory definition is analogous to gross negligence
in the law of torts. Although somewhat nebul~usin concept,
gross negligence is generally considered to fall shcrt of
a reckless disregard for consequences and is said to differ
from ordinary negligence only in degree, not in kind.
See, Prosser, - - Torts, 183-84 (4th Ed. 1971).
Law of Here,
defendant's conduct in pulling out, cocking and throwing
a loaded gun within reach of his intoxicated wife clearly
qualifies as a gross deviation giving rise to criminal
culpability.
Defendant also contends he should not be held responsible
to have foreseen his wife's alleged suicide attempt. Generally,
where a crime is based on sone form of negligence the State
must show not only that defendant's negligent conduct was
the "cause in fact" of the victim's death, but also that
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the victim was foreseeably endangered, in a manner which was
foreseeable and to a degree of harm which was foreseeable.
LaFave and Scott, Criminal Law S78, p. 588. Clearly, the
risk created by defendant's conduct under the circumstances
(that in a highly intoxicated state his wife would shoot
either the defendant or herself), was a foreseeable risk.
Indeed, he challenged her to use the gun.
Next, defendant contends that it was an abuse and
discretion for the court to deny his motion for a jury
view of the trailer. Section 95-1912, R.C.M. 1947, now
section 46-16-502 MCA, provides in part that a jury view
is appropriate "[wlhen the court deems it proper." This
Court will not interfere with the District Court's discretion
in granting or refusing jury view except in a case of mani-
fest abuse. State v. Allison (1948), 122 Mont. 120, 142,
199 P.2d 279, 292. Defendant argues that jury view was
necessary due to the complexity and three dimensional
quality of his bullet angle evidence. He claims prejudice
in the deprivation of this opportunity to corroborate his
testimony as to how the shcoting occurred. We find no such
prejudice. Defendant's testimony as to how the gun fired was,
with or without corroboration, sufficient credible evidence
for the jury to find guilt of negligent homicide. The court's
denial of a jury view was not, therefore, an abuse of discretion.
Defendant alleges reversible error in the trial judge's
statements to the jury that defendant's demonstrative evidence
was "purely his say-so" and'purely his concoction." These
statements should be examined in light of the context in
which they were made. in developing the circumstances of
the shooting, defendant testified that his wife was standing
at a particular point in the room when the gun discharged.
Defense counsel then elicited testimony from the defendant
that Deputy Donovan located her at the same point in the
room. The following exchange then took place:
"THE COURT: . . . Now, how are you going to place
her there?
"COUNSEL: Based on defendant's recollection.
"THE COURT: That's purely his say-so,is it not?
"COUNSEL: NO, it's not purely his say-so,Your
Honor. First of all, Deputy Sheriff Donovan
has testified as to her location.
"THE COURT: He didn't testify where she was
standing, did he?
"COUNSEL: Also, Your Honor, we have a
photograph of the--
"THE COURT: Do you have a photograph of her
standing someplace in that room?
"COUNSEL: No, Your Honor, we have a photograph
I believe as introduced by the State, showing
the location of the blcod, Your Honor, of Mrs.--
"THE COURT: That's after she was laying down.
"COUNSEL: Well, it shcws where she was, it
approximates where she was standing. I
indicate that she fell from--
"THE COURT: You don't know where she was
standing.
"COUNSEL: Well, he's testified to everything
else to the best of his recollection.
"THE COURT: That's correct. It's understood
clearly that this is what he says.
"COUNTY ATTORNEY: Well, I'll have a continuing
objection, Your Honor. I think it's expertise
testimony, and it needs expert testimony.
"THE COURT: Yes, it's purely his concoction."
Defendant contends the court's statements, "purely
his say-so" and "purely his concoction" were in violation
of Rule 614(b), Mont.R.Evid., which proscribes comment on
the evidence by a trial judge, and that these statements
effectively denied defendant's right to a fair trial. The
State argues that defendant's failure to object at trial
precludes the assertion of error on appeal. State v. Jensen
(1969), 153 Mont. 233, 236, 455 P.2d 631, 632-33. We agree.
We note moreover that the judge's statements were not directed
at defendant's credibility. In the context in which the
statements were made, it is clear they were intended to
clarify that defendant's testimony on where his wife was
standing was based exclusively upGn defendant's recollection.
Although the words "concoction" and "say-so" were not a good
choice of words, we do not see how the substantial rights of
the defendant were affected by their.utterance.
Defendant also takes issue with the ~istrictCourt's
ruling that all evidence relating to bullet angles should be
excluded as a technical subject requiring expert testimony.
Defendant believes the angle evidence was not too complex to
be grasped by the average mind of a juror. The State maintains
that it was too complex.
Before the enactment of the Montana Rules of Evidence,
effective July 1, 1977, the necessity for expe-rttestimony
arose where the proffered evidence was beyond the ordinary
range of normal intelligence or common knowledge. 31 Am.Jur.2d
Expert and Opinion Evidence S S 2 - 4 ; Wibaux Realty Co. v. N.
Pac. Ry. Co. (1935), 101 Mont. 126, 139, 54 P.2d 1175, 1181.
However, Rule 701, M0nt.R. Evid. changed this rule, and it
applies to the instant case. Rule 701 permits lay opinion
so long as rationally based on perceived facts and helpful
to an understanding of testimony or facts. Cross-examination
in the normal case is considered to sufficiently safeguard
the testimony from infirmities. See, Clark, Montana Rules
of Evidence, 39 Mont.L.Rev. 79, 126-28 (1978). In the
context of this case, the court's exclusion of testimony
on bullet angles was harmless error as it did not affect
the substantial rights of the defendant. State v. Armstrong
(19771, Mon t . , 562 P.2d 1129, 1132, 34 St.Rep.
213, 216; section 95-2425, R.C.M. 1947, now section 46-20-702
MCA .
Here, defendant claims prejudice because he was not
permitted to corroborate his testimony on how the gun discharged
and thereby exclude the possibility that he might have pulled
the trigger himself. Defendant was on trial for negligent
homicide, not deliberate or mitigated deliberate homicide.
The conceded fact that he threw the cocked, loaded firearm
within reach of his intoxicated wife, challenged her to use
it, and allowed her to take the gun off the bed was a sufficient
basis for the jury to predicate guilt of negligent homicide.
Defendant disregarded the risk of which he should have been
aware, that his wife in her intoxicated state might shoot
herself. This deviation was "considerably greater than [a]
lack of ordinary care." Section 94-2-101(31), R.C.M. 1947,
now section 45-1-101(31) MCA. Thus, defendant's own testimony
was sufficient for conviction of negligent homicide. Accordingly,
he was not prejudiced by any inference that he may have held
the gun when it discharged.
Last, the defendant contends the prosecutor made improper
remarks during his closing arguments that could lead a jury
to believe the State had even more evidence against the defendant
than what was produced at trial. The prosecutor's statement
was, "the State does not believe that Mrs. Bier shot herself.
If the State believed that, it wouldn't be here." The inference
which defendant wants this Court to adopt is far too speculative
to constitute reversible error. This is not a case where the
prosecutor expressed a personal opinion on the credibility of
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a criminal defendant. See, State v. Musgrove (1978),
Mont . , 582 P.2d 1246, 1252, 35 St.Rep. 1179,
1186. We note moreover, that defendant did not object to
this statement when made, and under the facts of this case
he is deemed to have waived any objection to the statement.
Jensen, supra.
The District Court judgment is affirmed.
We Concur:
C h ,9 Justice
i
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[ ' Justices I