82-419
I N T E SUPlG3ME COURT OF T E STATE O M N A A
H H F OTN
1983
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS .
KENNETH NORh'IAN ZAlQICH ,
Defendant and A p p e l l a n t .
Appeal from. D i s t r i c t C o u r t of t h e E i g h t h 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 of Chouteau
Honorable H . William Coder, Judge p r e s i d i n q .
Counsel of Record-
For A p p e l l a n t :
D a n i e l Donovan a r g u e d , G r e a t F a l l s , 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
Dorothy McCarter 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 , Helena Yontana
A l l i n H. Cheetham, County A t t o r n e y , F o r t Benton, Montana
-- --
Submitted: Ivlay 3 1 , 1 9 8 3
Decided: A u g u s t 1, 1 9 8 3
Filed
AUG 1 1983
~
Mr. J u s t i c e F r a n k B. Morrison, Jr. d e l i v e r e d t h e O p i n i o n of
t h e Court.
Kenneth Zampich was c o n v i c t e d by a jury i n t h e Eighth
J u d i c i a l D i s t r i c t Court of m i t i g a t e d d e l i b e r a t e homicide. He
was s e n t e n c e d t o twelve y e a r s i n prison, with four of the
years suspended. Zampich now appeals his conviction and
sentence. W e a f f i r m both.
Defendant worked for Gary Wigger as a grain truck
driver. On August 26, 1981, defendant, Wigger a n d S c o t t y
Smith went t o t h e C a r t e r Tavern i n C a r t e r , Montana, t o d r i n k
b e e r and p l a y p o o l a f t e r work. Ray C l i n e , t h e owner, j o i n e d
them. The pool games and the evening were relatively
uneventful. Defendant stopped d r i n k i n g beer a n d commenced
drinking s o d a pop sometime late in the evening. Witnesses
t e s t i f i e d t h a t h e was n o t d r u n k .
As defendant was preparing to leave the bar, he
attempted t o purchase a bag of ice. Ray C l i n e a r g u e d w i t h
him over the price and a fist fight ensued. Cline hit
defendant in the head with his fist. The blow was
i n t e n s i f i e d by a t u r q u o i s e r i n g C l i n e was w e a r i n g . The blow
c a u s e d d e f e n d a n t t o f a l l a g a i n s t a j u k e box.
Scotty Smith broke up the fight and defendant left,
saying: "Well, w e ' l l see what my 30.06 h a s t o s a y a b o u t i t . "
Defendant's son, P a t r i c k , r o d e home w i t h h i s f a t h e r i n t h e i r
pickup truck. Pat t e s t i f i e d t h a t during t h e ride, h i s father
s a i d t h a t he ought t o k i l l t h e "son-of-a-bitch".
Sharon Zampich, wife of defendant, was watching
t e l e v i s i o n when h e r husband and P a t a r r i v e d home a t 1 : 4 5 a.m.
Defendant did not speak to his wife, but went into his
bedroom and returned with his 30.06 rifle. When Sharon
Zampich a s k e d what h e was d o i n g , defendant responded t h a t ,
"he was going after Ray Cline. " He then left the house and
drove his pickup truck back toward the Carter Tavern.
Sharon Zampich testified that her husband was not
himself at that time. He appeared to be in a daze and his
eyes were glazed. Pat was also uncertain his father knew
what he was doing.
Scotty Smith, Gary Wigger and other bar patrons
testified that approximately ten minutes after defendant had
left the bar, a shot was heard and Ray Cline fell to the
floor. The shot came through a back window and had struck
Cline in the back.
Ken Zampich did not return home that night. He awoke
the next morning in his truck on a sideroad near Floweree,
Montana. His head had been bleeding and both his head and
his back were aching. He drove to Great Falls, where he was
peacefully arrested that same day. At the time of
defendant's arrest, his 3 0 . 0 6 rifle was found in his pickup
truck. He has no memory of what happened after Smith broke
up the fight.
After his conviction, defendant was designated a
non-dangerous offender for purposes of parole and given
credit for the ten months he had spent in the Choteau County
jail awaiting trial. Further, he was permitted to serve the
remainder of his sentence in the Choteau County jail rather
than the Montana State Prison. He is now free on $ 2 5 0 0 bail
pending this appeal of his conviction and sentence.
The first issue presented on appeal is whether the
District Court erred in refusing to instruct the jury that
the burden is on the State of Montana to prove beyond a
reasonable doubt that defendant Zampich acted purposely,
knowingly and voluntarily?
At trial defendant contended that, due to various
circumstances at the time of the offense, including intense
head, neck and back pain, humiliation, anger, mistreatment,
fear, and the assault by Cline who had threatened to put him
six feet under, he did not know what he was doing and was not
able to control himself. Specifically, Zampich claimed that
if he shot Ray Cline, it was not a voluntary act.
That defense was supported by the testimony of Dr. J.
Earl Farris, a psychologist who examined and tested Ken
Zampich in October, 1981 and again in February, 1982. Dr.
Farris testified that defendant's conduct, head injuries and
emotional state support the theory that even though he might
have been able to act in a directed way and with perception
(purposely and knowingly), defendant may not have been acting
with "moral control" (voluntarily) . That is, he might have
been acting with cognition and without volition. Since
evidence was presented that he might have been acting without
volition, defendant argues that the jury should have been
instructed regarding both cognitive and volitional behavior.
Defense counsel submitted several proposed instructions
concerning the concept that Zampich was not capable of acting
purposely, knowingly and voluntarily. For example,
defendant's proposed instruction No. 43 (setting out the
theory of the defense) stated:
"Under this Theory, the Defense contends that he
did not act purposely or knowingly or voluntarily
and was not capable of acting purposely or
knowingly or voluntarily. The burden is on the
State of Montana to prove beyond a reasonable doubt
to a moral certainty that Kenneth Norman Zampich
acted purposely, knowingly, and voluntarily and was
capable of acting purposely, knowingly and
voluntarily."
The trial court gave essentially the same instruction, after
deleting every use of the word "voluntarily".
However, Instruction No. 6, as given by the trial court,
stated: "A material element of every offense is a voluntary
act." Section 45-2-202, MCA. That instruction properly
called the jury's attention to the psychological evidence
defense counsel had marshalled. Instructions No. 2 and No. 5
stated that the State of Montana has the burden to prove each
element of the crime beyond a reasonable doubt. Reading all
the instructions together, as is required by this Court, it
is clear the jury was properly instructed regarding
defendant's theory of the case. Cf. State v. Riley (1982),
Mont. , 649 P.2d 1273, 39 St.Rep 1491; State v.
Johnson (1982), Mont . , 646 P.2d 507, 39 St.Rep. 1014;
State v. McKenzie (1980), Mont . , 608 P.2d 428, 37
St.Rep. 325, certiorari denied 449 U.S. 1050, 101 S.Ct. 626,
66 L.Ed.2d 507; State v. Azure (1979), 181 Mont. 47, 591 P.2d
The second issue before this Court is: Did the District
Court err in failing to apply exceptions found in section
46-18-222 (2) and (3), MCA, to the mandatory two year minimum
sentence for mitigated deliberate homicide and in failing to
follow the procedures set forth in section 46-18-223, MCA?
Section 46-18-222(2) and (3), MCA state:
"Exceptions to mandatory minimum sentences and
restrictions on deferred imposition and suspended
execution of sentence. All mandatory minimum
sentences prescribed by the laws of this state. ..
do not apply if:
(2) the defendant's mental capacity, at the time
of the commission of the offense for which he is to
be sentenced, was significantly impaired, although
not so impaired as to constitute a defense to the
prosecution;
(3) the defendant, at the time of the commission
of the offense for which he is to be sentenced, was
acting under unusual and substantial duress,
although not such duress as would constitute a
defense to the prosecution."
Defense counsel requested, at a hearing prior to
sentencing, that section 46-18-222(2) and (3) be applied to
defendant and that the two year minimum sentence for
mitigated deliberate homicide not be imposed..
The trial judge applied section 46-18-222(2), MCA, to
defendant but sentenced defendant to more than the mandatory
minimum sentence for mitigated deliberate homicide. We find
no error.
The trial judge gave great consideration to defendant's
situation prior to imposing the sentence. The sentencing
order contains specific reasons for the sentence imposed.
The procedures of section 46-18-223, MCA, have been
substantially followed. We would be "splitting hairs" to
overturn the sentence in this case because the trial judge
did not make a specific finding stating that "section
46-18-222, MCA, should not apply because . . ."
Defendant's conviction and sentence are affirmed.
We concur: