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 ,
-vs-
JOSEPH 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: March 1 5 , 1984
Decided: J u l y 3 1 1984
Filed: $$i
3=
-
Clerk
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 is an appeal from the District Court of the
Fourth Judicial District, County of Ravalli, from t h e
conviction of the crime of mitigated d e l i b e r a t e homicide
following a jury t r i a l . 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 appellant shot and killed Charles Hayes on
February 19, 1982. Prior to this killing there were a
number of rather complicated incidents and contradictory
facts concerning the relationship of the two men in the
s p r i n g of 1978. 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 land i n
t h e West Fork a r e a of R a v a l l i County, known a s t h e Hughes
C r e e k Drainage. 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 a bar fight.
Following h i s a r r i v a l i n Montana, he b u i l t a cabin i n an
isolated area to be occupied by himself 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 , and i n v i t e d h e r t o s t a y i n t h e i r
home u n t i l she could f i n d a place t o l i v e . According t o
Susan Hayes' 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 . S u s a n a s s i s t e d D e b b i e and h e r
child 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 i n September 1979, Hayes and several
other persons terrorized the appellant and h i s f a m i l y by
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 . According t o t h e
appellant and his wife, this went on for several hours
during the night. 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 . As a result
of these charges being filed against Hayes and his
companions, the deceased was put on probation for a
five-year 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 conditions of his parole. From the
testimony produced at trial there is l i t t l e dispute 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 to the above facts concerning the
hostility of Hayes and his violations of 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 some p r o b l e m s in the Hughes C r e e k area involving
Hayes pertaining to miners who were 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; problems involving people
e i t h e r fishing or cross-country 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. 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
between 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. There is a l s o
testimony that the two men hunted together. Also, the
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 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 their wait, the three officers listened to
appellant talk "non-stop:' reiterating what they had
previously been told about Hayes. 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 the three law enforcement
officers' departure. 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 a month after his arrest, appellant
asked to see the Sheriff of Ravalli County. When the
sheriff arrived at his cell, the appellant began clarifying
his statements made the day of the shooting. He asked the
sheriff to help reenact the shooting and attempted to
demonstrate the transactions occurring at that event. 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 the county who might be
contributing to disturbances. 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 his
jailhouse statement to Sheriff Dye. 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 the appellant's contention that the court erred in
permitting Sheriff Dye to testify about a 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 in the crime in an atmosphere free from
coercion. 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. 291, 100 S.Ct. 1682,
64 L.Ed.2d 297; Brewer v. Williams (1977), 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424; Michigan v. Tucker (1974), 417
U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; Massiah v. United
States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246;
Spano v. United States (1959), 360 U.S. 315, 79 S.Ct. 1202,
3 L.Ed.2d 1265; Commonwealth v. -J&hat 377 Mass. 552,
387 N.E.2d 527; 29 Am.Jur.2d 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 be involuntary and the
evidence derived inadmissible. See Muham, supra. 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 the
denial of the admission of the sheriff's statement. The
appellant argued that the sheriff's 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. Prejudice is not presumed
when error is alleged. If error occurred, then prejudice
must be demonstrated. Here no error occurred. If there was
error, it was harmless and not grounds for reversal. See
State v. Lapp (Mont. 1983), 658 P.2d 400, 40 St.Rep. 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 indirectly mention,
refer to, or question, " . . . 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. During cross-examination, the State, after
asking a 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, and h e j u s t t u r n e d i t a r o u n d a n d
applied i t t o Chuck Hayes. It's obvious
t h a t he d i s l i k e d t h e Gosses. Based o n
that, I 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
testify t h a t he threatended t o k i l l t h e
Gosses, s i n c e h e ' s j u s t d e n i e d making a
threat.
"THE C O U R T : This doesn' t indicate
c o n v i c t i o n o r c r i m e by him.
"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 trial but to
prove motive o r i n t e n t .
"MR. LANGTON: Why would that prove
m o t i v e t o k i l l Hayes?
"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 ,
whether h e had a n y p a r t i c u l a r bad
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 .
"THE C O U R T : I think it goes t o
impeachment. I ' m g o i n g t o a l l o w you t o
p r o c e e d on t h i s w i t n e s s . "
Thereafter on cross-examination, the State elicited from
witnesses 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 Rule 404, M0nt.R.Evi.d. The
a p p e l l a n t c i t e s S t a t e v. C a s e (Mont. 1 9 8 0 ) , 6 2 1 P.2d 1066,
37 S t . R e p . 2057,and S t a t e v. J u s t ( 1 9 7 9 ) , 184 Mont. 2 6 2 , 602
P.2d 957, 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. Doing s o i t
r e l i e s on S t a t e v. Austad (Mont. 1 9 8 2 ) , 6 4 1 P.2d 1 3 7 3 , 39
St.Rep. 356, for support that e v i d e n c e may be admissible
under "other purposes" as a means of 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." 641 P.2d at 1384, 39
St.Rep. at 369. 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. We hold
the evidence admissible for that purpose. 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 is whether the
failure of the prosecution to turn over 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. The county attorney's office turned
over everything 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 was allowed to have firearms in his
possession. In addition, it was found that in the Ravalli
County 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. Any evidence that might have
been given by the 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. 1942, in ruling on a similar situation,
where the trial court refused to grant a new trial
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
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. Despite the existence
of newly discovered evidence, the 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 case at bar the appellant asserted the defense of
justifiable use of force. 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 and specific acts of turbulence or
violence. We do not agree with appellant's argument.
Self-defense 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 ,
I'm 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."
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 be raised before evidence of the
decedent's prior threats and acts of violence may be
admitted. Until self-defense 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
Mont. 50, 28 P.2d 448, that the trial judge has the
discretion to allow such testimony when the proper
foundation has been laid. 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. Therefore, any error in this regard
must be disregarded. 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 issue of
self-defense and meet this burden of proof. 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 foundation for
corroborating evidence thereof. 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 no
reasonable belief that deadly force was unnecessary. Under
the decisions of both this Court and 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 doubt." See, Jackson v. Virginia
(1979), 443 U.S. 307, 319, 99 S.Ct. 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 might accept as
adequate to support a conclusion." 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 find that substantial
evidence was presented to the jury. In summary the evidence
is that: (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 . In h i s statement t o
Deputy Sheriff Clarkson, 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
for 2 f years. Do i t . "
( 3 ) John Houston, a neighbor of t h e a p p e l l a n t , had i n v i t e d
Kutnyak t o h i s home two d a y s b e f o r e the shooting. They
talked for four hours, and d u r i n g t h a t t i m e Kutnyak 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
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. ( 5 ) On t h e m o r n i n g o f
the shooting, Deputy Clarkson, Undersheriff Fisher, and
Probation Officer S a l l y McRae were a t Kutnyak's house
waiting for Hayes to arrive. Clarkson and McRae each
testified that Kutnyak described how h e planned to kill
Hayes. 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
be sitting to the right of Hayes, t h e n h e would utter a
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 . 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 , " and " s o m e t h i n g
else" t o provoke Hayes into reaching for 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, Fisher and McRae, as we11 as the defendant
himself, each t e s t i f i e d t h a t during t h a t morning, Kutnyak
asked about shooting in self-defense. ( 7 ) Kutnyak's 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
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 . H e a l s o knew t h a t
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 t o t h e p o l i c e a b o u t him. ( 8 ) Kutnyak a l s o
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 . (9)
After Hayes had b e e n d r i n k i n g and smoking for 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 had
never said any such thing. According to 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, we find that the record c o n t a i n s more than
substantial evidence for a rational trier of fact to
conclude beyond a reasonable doubt that the 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. Kutnyak
Dated: 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
motion. - limine that would foreclose such testimony.
in
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., disallows evidence of other
crimes, wrongs or acts to prove the character 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/