No. 82-455
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1983
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
KENNETEl R . GRAHAM,
Defendant 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 Eleventh J u d i c i a l D i s t r i c t ,
In a n d f o r t h e County o f F l a t h e a d ,
The H o n o r a b l e J a c k D. S h a n s t r o m , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant :
Kenneth R. Graham, p r o s e , Deer Lodge, Montana
For Respondent :
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 , Nontana
Ted Lympus, County A t t o r n e y , K a l i s p e l l , Montana
--
-- -
Submitted: J u n e 3 0 , 1983
Decided: September 29, 1 9 8 3
----- -
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Kenneth Reynolds Graham appeals from a judgment based on
a jury verdict convicting him of deliberate homicide in the
District Court, Eleventh Judicial District, Flathead County.
We dismiss the appeal as having no merit and thereby affirm
the District Court judgment.
Graham was convicted May 6, 1982. He was represented by
court-appointed counsel before a.nd during the trial.
Following the trial, he instructed his court-appointed
counsel that he did not wish to be represented by that
counsel at the sentencing hearing. He asked the court to
dismiss his counsel, but the District Court decided that
Graham could conduct his own sentencing hearing with
court-appointed counsel standing by to advise him on
procedure if need be. Accordingly, Graham, acting - propria
in
persona, called and interrogated witnesses, and argued his
case to the District Court. At the conclusion of the
hearing, the District Court sentenced Graham to serve 75
years in the Monta.na State Prison, with an additional 10
years imposed for the use of a dangerous weapon, the terms to
be served consecutively.
Graham filed his notice of appeal to this Court. Before
he had filed his notice of appeal, his court-appointed
counsel wrote to him advising him of the deadline for appeal,
confirming their understanding that Graham did not desire the
attorney's further assistance unless requested, and again
advising Graham of the necessity of procuring a transcript.
On September 2, 1982, upon learning that Graham had not
perfected his appeal by obtaining transcripts, the attorney
again wrote to Graham and advised him of the statutory
deadlines which he must meet to perfect his appeal.
On September 14, 1982, court-appointed counsel received
a letter from Graham contradicting his previous statements
and advising the attorney that Graham expected his appeal to
be handled by the a.ttorney. To protect Graham, the attorney
moved the District Court for an extension of time of 90 days
within which to transmit the record, which was granted by the
District Court.
When the attorney was advised by the court reporter that
the 90-day deadline could not be met in time to prepare the
transcript, the attorney again acted to procure a stipulation
from the State that Graham could. have an additional 90 days
from November 11, 1982, in which to transmit the record.
The transcript on appeal was filed in this Court on
January 11, 1983. On February 8, 1983, the attorney moved
the court for an order extending the time for filing Graham's
brief for an additional 30 days, or until March 12, 1983.
That motion was granted by this Court, with the notation on
the order that "[nlo further extensions [of time] will be
granted. "
On February 24, 1-983, the attorney moved this Court for
permission to withdraw as counsel of record for Graham. The
attorney attached to his motion an affidavit which included a
letter from Graham instructing the attorney to withdraw as
counsel of record for Graham and denying that Graham had
earlier advised the attorney to go forward with Graham's
appeal. The attorney further reported by affidavit that
Graham had continued in his attempts to frustrate the
handling of his case, had repeatedly refused to reply to
correspondence by counsel, had refused to provide payment for
fees incurred, and had attempted to inject error into his
case by discrediting his counsel. This Court granted leave
to the attorney to withdraw as counsel of record for Graham
on February 28, 1983.
On March 22, 1983, Graham filed in this Court his motion
for an extension in which to file his first brief. This
Court on March 28, 1983, granted Graham an additional 90 days
within which to file his first brief, again with the notation
that no further extension would be granted.
On June 27, 1983, there was filed with this Court a
typewritten but unsigned motion for extension of time by
Graham requesting an additional 60 days in which to prepare
his brief on appeal based upon his contention that his legal
papers were locked up in storage in maximum security and that
he had no way of getting them out and that the person who was
helping him with his appeal had left the prison for an
unknown length of time. This Court on receipt of that
motion, denied the same and ordered that Graham's cause on
appeal be determined on the basis of the papers now filed.
From the inception of court proceedings in this cause,
Graham made the prosecution difficult over whether he would
be represented by an attorney. On his first appearance in
the District Court, on December 18, 1981, he appeared without
an attorney. He told the court that he had attempted to call
attorneys but that he was only allowed one telephone call per
week while he was in jail. On order of the court he was
given unlimited use of the telephone as far a-s engaging
counsel was concerned and the District Court set another
hearing for December 22, at which time he was to either have
counsel or there would be counsel appointed for him.
On December 22, 1981-, he again appeared without an
attorney but the public defender in Flathead County appeared
with him because he and Graham had been in contact. However,
Graham wanted an attorney of his own choosing, claiming that
he had assets out of which fees could be paid. The court
continued the matter until December 30, 1981.
On the latter date, the defendant again appeared without
an attorney, but the court had been informed that an attorney
from Polson, Montana, would represent the defendant and the
court accepted that, and set the arraignment of Graham for
January 7, 1982.
On January 18, 1-982, Graham appeared with his counsel
from Polson, and entered a plea of not guilty to the charge
of deliberate homicide.
On March 26, 1982, Graham appeared for a hearing. There
was pending before the court a motion by the Polson counsel
to withdraw as attorney for Graham. The Polson attorney
claimed that Graham had failed to cooperate with him and had
failed to pay the fees upon which they had agreed. Graham
contended that the Polson attorney had not done the pretrial
investigation work that was necessary. The Polson attorney
informed the court of the work that he had done and the
necessity for some depositions which would have to be paid
for by Graham. At this hearing, the District Court appointed
a public defender to defend Graham, upon the stipulation that
the fees incurred would be paid out of the property of the
defendant. Throughout the proceedings thereafter, and
through trial, Graham was represented by this attorney. The
affidavit of this attorney filed in this Court indicates that
during the trial there were disagreements with Graham over
the methods of handling his case and whether certain
witnesses should have been subpoenaed and called to aid
Graham in his defense.
The right of Graham to represent himself in criminal
proceedings is constitutional. Art. 11, 24, 1972 Mont.
Const., gives a person accused of a crime the right to appear
and defend in person and by counsel. It is the position of
this Court that the right of a party in a judicial
proceedings to represent himself will be honored, and that we
will be tolerant of the layman's lack of familiarity with
procedure or with legal principles insofar as it does not
affect the merits of the cause or the jurisdiction of the
court. When, however, it is time to apply legal principles
to reach a decision in a cause, even though one of the
parties is represented by himself, a layman, those principles
will be applied fairly and impartial-ly, without regard to
whether one or other of the parties was represented by
counsel.
In the procedure of this appeal, we have been tolerant
with Graham. He has been granted several extensions, both
for his transcript and for his first brief. Despite this
tolerance, we do not have the advantage of receiving from
Graham his first brief, within which would be contained his
assignments of error as far as his judgment of conviction is
concerned. Because he has failed to file a brief, there is
nothing of record in this Court for the State to reply to,
and so we do not have the advantage of a brief from the
State. We have before us only the District Court file, and
the transcript of proceedings that includes the various steps
taken leading up to his arraignment, the appointment of
counsel, the trial, and the eventual sentencing hearing.
a
CORRECTION. In preparing this opinion for pub-
Hon. J o h n C. S h e e h y lication, we noted in our verification of titles a n d
J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 414 J u s t i c e B u i l d i n g been made on our copy of the opinion.
215 N o r t h S a n d e r s
H e l e n a , Montana 59620
Date:
October
Re:
S t a t e v . Graham, N o . 82-455, S e p t . 29, 1983
Page 7, l i n e 10 --- 238 P.2d 1 9 0 7 s h o u l d r e a d 2 3 8 P.2d 907.
WEST PUBLISHING COMPANY
Box 3526
St. Paul, MN 55165
In a civil case, on this kind of appellate record, we
could dismiss the appeal for lack of prosecution. In this
cause, however, because it involves a death by gunshot, and a
long prison sentence, we have on our own combed the record
before us for any hint that would raise a debatable question
as to Graham's conviction. We have taken the position that
if the record revealed a debatable question as to the
propriety of his conviction, he would have a constitutional
right to have his case reviewed by this Court. State v.
Robuck (1951), 125 Mont. 613, 238 P.2d 1907.
We have examined the record from the viewpoint of four
common appellate issues: (1) the sufficiency of the
evidence to support the conviction; (2) possible
instructional error by the District Court; (3) possible
inadequate assistance of counsel; and, (4) harsh, cruel or
unusual punishment in the sentencing.
SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE CONVICTION
The test for the sufficiency of the evidence to support
the judgment of conviction is whether there is substantial
evidence to support the conviction, viewed in a light most
favorable to the State. State v. Lamb (Mont. 1982), 646 P.2d
516, 39 St.Rep. 1021. The resolution of factual matters is
for the jury, and if there is substantial evidence to support
the judgment, this Court must affirm the decision of the
jury. State v. Hardy (Mont. 1980), 604 P.2d 792, 37 St.Rep.
1. Disputed questions of fact and the credibility of
witnesses will not be considered on appeal. State v.
DeGeorge (1977), 173 Mont. 35, 566 P.2d 59. These are the
rules that apply to appeals where the defendants are
represented by counsel and we apply those same rules to this
cause, where Graham is representing himself.
Kenneth Reynolds Graham married Susan Piburn about 10
years before her death occurred. Three children, all girls,
were born as a result of the marriage. At the time of her
death, Graham was unemployed, his last job having been at a
youth camp located near Lakeside, Montana. Susan was a
med-ical technician and microbiologist, and had been employed
until her death by hospitals in Kalispell and Ronan.
The marriage was rocky. Susan's parents testified at
the trial that Graham had been violent in his treatment of
Susan. They also testified that he had complained to them
that Susan had been unfaithful, and was not a fit mother.
They and others testified that Susan was a passive, somewhat
submissive type of person, whereas Graham contended that
although she appeared this way most of the time, there were
occasions when she would "explode" and became uncontrollable.
On those occasions he found it necessary to sit on her until
she "calmed down" after which he would let her go.
In the weeks prior to the death, a dissolution of
marriage action had been filed, and because custody of the
three girls was involved the parties had been referred for
counseling in accordance with the practice in the Flathead
County District Courts. The counselor testified that he had
examined both parties and had determined that Graham had been
violent with Susan. He had not yet made his recommendation
to the District Court as to custody, but Graham felt that his
recommendation would be that Susan was to have the children.
This agitated Graham very much since he felt that he was the
person who should have custody, and he was very strongly
attached to his daughters.
Graham claims that Susan wrongfully told the counselor
and others that he had committed marital rape upon her in
some instances, and had sexually molested the three girls.
Graham testified that the latter accusation really disturbed
him.
After the dissolution proceedings had been filed, Susan
had moved out and was living with a girlfriend in Kalispell.
The girlfriend, when Susan first came to her home, noticed
bruises on Susan's face, and reported the presence of those
bruises to the Fla-thead County Rape Crisis Center, which also
took care of battered women.
The death occurred after a period of separation of about
five weeks. On about November 11, 1981, Susan came to the
trailer in which Graham was living with the three daughters
about 7 : 3 0 in the evening. Before she left her girlfriend's
house to go to the trailer, she had been advised by both the
girlfriend and the girlfriend's husband not to go into the
presence of Graham alone.
What happened in the trailer comes mostly from Graham
himself. He said that she came into the trailer, barely said
"hi" to the three girls, although she had not seen them for
two weeks. This casual greeting seemed to make Graham angry
and he upbraided Susan for it. They got into an argument in
front of the children which was very abusive, at least
verbally. Graham eventually told the three girls to go back
to their bedroom and to wait there. In the meantime, Susan
was demanding that she be given some "papers," which are not
otherwise identified in the transcript. Graham testified
that Susan could take such papers as belonged to her, and for
that purpose he unlocked a bedroom door in the tra-iler home
so that Susan could go in and procure her papers. He waited
for some time and when she came out from the bedroom, Graham
said that she was carrying some papers under her left arm and
in her right hand, covered with a blue paper of some kind,
was the pistol in a holster, which she was drawing out of the
holster. He reached for the gun and a struggle ensued. He
states that while they were struggling, they fell over onto a
beanbag chair, and while she was in that position, he pulled
the trigger of the gun, which had come into his hands. He
admits pulling the trigger once. Susan was actually shot
twice by a . 3 5 7 magnum gun with hollow-point bullets. He
states that he does not remember pulling the trigger twice
but contends that this particular gun was a fast,
double-action gun and would fire two shots almost
simultaneously.
Susan's body was lyinq on the floor, and he covered it
with objects so as to hide the body from the children. He
testified that he went to the bedroom where the girls were,
and told them that their mommy was dead and that he had shot
her. He did not immediately call the police. Instead he
called his mother and informed her that Susan was dead. She
stated that she and perhaps some members of her family would
come immediately as soon as they checked the airlines. Her
testimony was that upon checking the airlines, she discovered
that no planes came to Kalispell from her home until 5 : 0 0 the
next afternoon. When her son called back about whether she
was coming, she gave him this information and she advised him
to call the sheriff.
Graham testified that following the death, he talked to
his mother, and was trying to determine whether the sheriff
would arrive. He said he was told by Susan before her death
that she had instructed her girlfriend that if Susan had not
returned to the girlfriend's house within one-half hour, the
girlfriend was to call the sheriff.
any rate, was not until the next
that officers arrived at the scene and discovered Graham,
with the girls waiting the pickup, loading their goods
into the truck. He was placed under arrest and the
investigation into the death then followed.
A teacher of one of the daughters did testify that in
that fall she had noticed that the daughter was crying in
school and seemed inattentive and staring out into space.
Upon inquiry, the daughter told the teacher that her mother
had left and this was the cause of the difficulty. The
teacher then had two subsequent conversations with Graham, in
which the teacher determined from Graham that the mother had
left without reason, and that her impression was that Graham
really loved the girls and the girls loved him very much.
Graham's own testimony as to how the death occurred is
important. He testified:
". . . And she came out of the living room and down
the hall and I saw her in the hall with a gun. She
was just pulling the gun out of the holster. She
had the papers tucked--this blue folder tucked
under this arm, holding the holster with this hand
and, you know, when I saw her, you know, the barrel
of the . 3 5 7 was appearing. ..
. I made a grab for
the gun and I pushed the gun up so it wasn't
pointing toward me. Also I didn't want it pointing
down the hall where the children were. And Susan
was two inches taller than I am, so she had little
reach advantage on me.. ..
She had full control
of the gun. My hand was kind of over hers at that
point. We were struggling over the gun. We ended
up falling. I don't know if we tripped over the
couch, the corner of the couch or what. But we
landed on the beanbag chair face to face like this,
with the gun. And at that point I was able to get
the gun. I had more of the grip. I was twisting
it out of her hand. She had, after I had been
twisting it out of her hand, she had both hands on
the barrel of the gun, or on the gun that time.
And I had the handle portion of the gun in my
control.. . . Her right hand was on the barrel and
the left hand was probably down around the
cylinder.. .. And then when I was trying to twist
the gun out of her grasp, at that time I started
raising up and over her, to twist the gun out of
her grasp, get it away from her.. .. That is when
the shots fired."
On cross-examination, Graham testified:
I1Q. It was pointed at her then. A. Yes.
"Q. At what part of her. A. Just at her.
"Q. Well, here or here? A. No, at her head.
"Q. It was pointed at her head. A. Yeah.
"Q. And you were holding onto the business end,
the butt, the trigger part? A. Yes.
"Q. She still had a hold of the front. A. I
think she had ahold of it at that time.
"Q. And the gun was pointed at her head? A. Yes.
"Q. And you had control of it. A. I had partia.1
control of it.
"Q. And what did she say. A. She said, she
screamed that I was a child molester.
"Q. And what was your reaction to that? How did
you feel when she called you that? It made you
mad, didn't it? A. Yes.
"Q. It made you mad before when she called you
that, hadn't it? A. Yes.
"Q. And you were mad? A. I was in a situation
where it was a matter of madness. I was reacting,
you know.
"Q. How did you react? A. In a situation--
. How did you react? A. I pulled the trigger.
"Q. You pulled the trigger, didn't you? A. Yes.
"Q. You intentionally pulled that trigger, didn't
you? A. No.
"Q. Well how did you pull the trigger? A. I
pulled, I did it. I don't know. Out of instinct
or reaction."
Essentially Graham was convicted out of his own mouth.
His was the only testimony as to what actually happened at
the trailer at the time of Susan's death. Substantially and
effectively his testimony supports the jury's verdict that he
had committed deliberate homicide.
POSSIBLE INSTRUCTIONAL ERROR
During the settlement of the instructions, no specific
objection was raised by counsel for Graham to any of the
instructions eventually given by the court. Because Graham
has not submitted. a brief in this case, he does not assign
any instructional error.
We have, however, examined the instructions. The court
instructed the jury on the elements of deliberate homicide,
mitigated deliberate homicide, and negligent homicide. It
submitted four possible verdicts for the jury to consider
including one for each of the three described crimes and one
not guilty verdict. The jury was instructed on knowledge and
purpose, reasonable doubt, direct and circumstantial
evidence, and how the jury should weigh and determine the
facts. We find no error in the instructions as given, and
find that the jury was fairly and properly instructed as to
the crime charged and any lesser-included crimes which the
jury may have found.
POSSIBLE INADEQUATE ASSISTANCE OF COUNSEL
Because Graham has not filed a brief or any other
instrument which would detail instances in which he contends
he did not receive adequate assistance of counsel, we have
searched the record itself for any indication of inadequacy.
We find none. Only in a copy of a letter which Graham wrote
post-trial to his attorney is there any indication that
Graham was dissatisfied with the work that his counsel did
for him during the trial. Counsel ' s own affidavit, of
course, reflects that he was having disagreements with Graham
as to how the trial should be handled.
We do find in Graham's letter to counsel his contention
that if the attorney had subpoenaed "the evidence I asked
for, and [got] the witnesses I asked you to" then Graham
wouldn't be in the position of contending his counsel did
nothing for him. Graham contends there were at least five
people that the attorney didn't even talk to once, and that
the attorney did not get medical records from California or
Wyoming which might have supported his claims.
These references apparently are to contentions made by
Graham during the trial that his wife had brutally treated
one or more or the girls on prior occasions, and that the
witnesses could testify to the fact that Susan had been cruel
in her treatment of the children. Graham also contended
during the trial that before she was killed, Susan had
written a will in which she had stated that if she were found
dead that her husband was the "murderer." Graham claims that
the attorney did nothing to find this will. However, one of
the witnesses testified at trial that Graham himself had told
the witness that he had found the will in her purse after her
death. The county attorney reported to the court that they
were unable to find a purported will in their investigation.
We have quoted foregoing the evidence upon which the
jury found Graham guilty. Regardless of what Susan may have
done with respect to her children in the time prior to their
proposed dissolution of marriage, and irrespective of what
she may have written in a purported will, the convincing
force of the evidence from Graham himself, makes it certain
that any such additional evidence or witnesses would not
serve the purpose of providing a defense to the charges
against him. If error occurred on the part of counsel, and
we have no record that it did, it would almost certainly have
been harmless in this case.
THE SENTENCE WAS HARSH, CRUEL OR UNUSUAL
Under the circumstances of this case, it cannot be said
that the District Court erred in sentencing Graham to 75
years for the homicide which the jury found he committed, nor
for assessing an additional 10 years to be served
consecutively for his use of a weapon. These are statutory
penalties. Moreover, Graham has had his sentence reviewed by
the Sentence Review Board, which left his sentence
undisturbed.
We have reviewed the foregoing possible contentions of
Graham with respect to this cause only for the purpose of
making certain that since he was representing himself we
might by some omission have failed to find a reason why his
conviction should not be sustained. Graham has failed to
file a brief which would outline or indicate to the Court a
single ground of error upon which he relies. We find no
error, and accordingly, we dismiss this appeal with prejudice
as being without merit, thereby affirming the judgment of
conviction in a district court.
a a>%
& Justice
We Concur:
b-i!A$,aq&
Chief Justice