No. 83-157
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTm?A,
Plaintiff and Respondent ,
-vs-
KARL ERIC GRATZER,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In,mnd for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael J. Sherwood, (argued) & Karl Englund
Missoula, Montana
For Respondent :
Hon. &like Greely, Attorney General, Helena, Montana
Robert McCarthy, County Attorney, Butte, Montana
Patrick Fleming and Ross Richardson, Deputy County
Attorneys,(argued) Butte, Montana
Submitted: December 8 , 1933
Decided: April 24, 1954
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Karl Eric Gratzer appeals from his conviction of
deliberate homicide in the District Court, Second Judicial-
District, Silver Bow County. He was charged in the shooting
death of Tim Hull on April 14, 1982, which occurred in a
parking lot near a dormitory of the Montana College of
Mineral Science and Technology (Montana Tech).
Gratzer, born in Butte, the last of eight children,
lived with his mother and stepfather. For most of the time
between 1979 and the date of the shooting, he was engaged in
an intense personal relationship with a young woman we
identify as P.L. It appears that he and P.L. were almost
inseparable from their late high school vears until
1981-1982, when P.L. was enrol-led as a student at Montana
Tech. Gratzer enrolled there in January of 1982.
From December of 1981, however, it appears that the
relationship between the two was deteriorating, or at least
that P.L. was also attracted to Tim Hull. Gratzer suspected
that more was going on between P.L. and Tim Hull than he was
being told by P.L., and his suspicions were confirmed on
occasions when he discovered the two together at her house or
in other locations.
On the night of April 14, 1982, he found P.L.'s vehicle
in the parking lot near the dorm (she resided in her own home
in Butte). He was observed letting the air out of two tires
on her vehicle. His purpose was to find out whom she was
visiting in the dorm. He was chased by the two persons who
saw him letting the air out of the tires. He made a hasty
retreat to his car and made good his escape.
Gratzer, however, came back to the parking lot in
a n o t h e r c a r , t h i s t i m e t a k i n g w i t h him a . 3 5 7 magnum p i s t o l .
From a v a n t a g e p o i n t where he had parked h i s c a r , he o b s e r v e d
P.L. come o u t of t h e d o r m i t o r y , b r u s h some snow o f f o f h e r
v e h i c l e and d i s c o v e r t h e f 1 a . t t i r e s . She went back i n t o t h e
dormitory. He g o t o u t of h i s c a r and made h i s way t o a s p o t
between some pine trees located at the west end of the
parking lot. He was o b s e r v e d i n h i s h i d i n g p l a c e by t h e
o c c u p a n t s of a house n e a r b y . A s h o r t t i m e l a t e r P.L. and T i m
H u l l came o u t o f t h e Montana Tech d o r m i t o r y ha-nd-in-hand.
They walked toward P.L.'s car. When t h e y approached t h e p i n e
t r e e s a t t h e w e s t end of t h e p a r k i n g l o t , G r a t z e r s t e p p e d o u t
of h i s h i d i n g p l a c e and a c o n f r o n t a t i o n e n s u e d . G r a t z e r had
his gun in his ha.nd, and H u l l s t r u g g l e d wit.h him b e f o r e
breaking free and attempting to flee. While Hull was
retreating, Gratzer f i r e d h i s p i s t o l twice a t t h e fleeing
man. One o f t h e two s h o t s s t r u c k H u l l i n t h e back o f t h e
left leg, sha.ttering his femur bone so that he was
incapacitated. G r a t z e r t h e n walked o v e r t o where H u l l w a s
l y i n g and f i r e d two more s h o t s from h i s p i s t o l a t p o i n t b l a n k
range. These b u l l e t s s t r u c k T i m Hull i n t h e l e f t s i d e o f h i s
head c a u s i n g h i s i n s t a n t a n e o u s d e a t h .
G r a t z e r t h e n walked back t o h i s v e h i c l e and went t o h i s
home. There he informed h i s mother t h a t h e t h o u g h t he had
s h o t someone. Following t h a t he d r o v e t o t h e p o l i c e s t a t i o n
where h e t u r n e d h i m s e l f , h i s gun, and h i s c a r keys o v e r t o
the police.
G r a t z e r was c h a r g e d i n D i s t r i c t C o u r t w i t h a g g r a v a t e d
a s s a u l t and d e l i b e r a t e homicide. The D i s t r i c t Court o r d e r e d
t h a t h e be examined a t Warm S p r i n g s S t a t e H o s p i t a l f o r a n
e v a . l u a t i o n i n o r d e r t o d e t e r m i n e whether h e was f i t f o r t h e
I
criminal proceedings. His attorney filed a notice of purpose
to rely on mental disease or defect. The District Court then
ordered a psychiatric examination be conducted by Dr. William
D. Stratford. The District Court also, at the request of the
State, required that the defendant be examined by personnel
at Warm Springs State Hospital as to the mental state of the
defendant on the night in question.
The psychiatrists for the defense and the prosecution
testified at the trial. Each testified that Gratzer wae
under mental stress during the night of the shooting. Dr.
Xanthopoulos felt that the mental stress was not so extreme
as to invoke the statutory language of mitigated deliberate
homicide. Dr. Stratford felt the stress was extreme.
The jury returned a verdict of not guilty on aggravated
assault and guilty of deliberate homicide. He was sentenced
by the District Court to life imprisonment, labeled a
dangerous offender for purposes of parole, and declared to be
ineligible for parole, and further sentenced to ten years for
the use of a firearm in the commission of the offense. His
appeal is now before us.
The first and principle issue raised by Gratzer is that
the District Court committed instructional error with respect
to mitigated deliberate homicide in refusing to give two
instructions offered by Gratzer. Gratzer contends that the
District Court improperly instructed the jury with respect to
burden of proof relating to mitigated deliberate homicide.
He a.rgues that the State has a duty to prove beyond a
reasonable doubt as an element of mitigated deliberate
homicide that Gratzer was not acting under the influence of
extreme mental or emotional stress.
The State contends that Gratzer was not entitled to any
instructions on mitigated deliberate homicide under the facts
in this case but that, in any event, under court's
Instruction No. 10A, no instructional error occurred.
With the adoption of the new Montana Criminal Code of
1973, our state legislature divided criminal homicide into
three types, deliberate, mitigated deliberate, and negligent.
Section 45-5-101, MCA.
Criminal homicide is deliberate if it is committed
purposely or knowingly. Section 45-5-102, MCA. It is
mitigated deliberate homicide if what would otherwise be
deliberate homicide is "committed under the influence of
extreme mental or emotional stress for which there is
reasonable explanation or excuse." Section 45-5-103, MCA.
We are called upon by the parties in this case to
determine who has the burden and what is the burden of proof
to establish the influence of extreme mental or emotional
stress in a mitigated deliberate homicide case.
The District Court determined not to fix the burden of
proof on either party, and instead instructed the jury with
respect to mitigated deliberate homicide as follows:
"In order to find the Defendant Guilty of the
lesser offense of mitigated deliberate homicide,
the State must prove the following propositions:
"First, that the defendant performed the acts
causing the dea-th of Tim Hull, and
"Second, that when the Defendant did so, he acted
purposely or knowingly;
"Additionally, you must find that at the time the
Defendant killed Timothy Hull, he was acting under
the influence of extreme mental or emotional stress
for which there is reasonable explanation or
excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a
reasonable person in the Defendant's situation.
"If you find from your consideration of all the
evidence that each of the first two propositions
has been proved beyond a reasonable doubt by the
State and that the Defendant, at the time he killed
Timothy Hull, was acting under the influence of
extreme mental or emotional stress for which there
is reasonable explanation or excuse, then you
should find the Defendant Guilty of the lesser
offense of Mitigated Deli-berateHomicide.
"However, if you find that the Defendant was not
acting under the influence of extreme mental or
emotional stress for which there is a reasonable
explanation or excuse, then you should find the
Defendant Guilty of Deliberate Homicide.
"If you find from your consideration of all the
evidence that either of the first two propositions
has not been proven by the State beyond a
reasonable doubt, then you must find the Defendant
Not Guilty of Deliberate Homicide."
Before considering the propriety of the foregoing
instruction, we must first treat the contention of the State
that the court should not have instructed the fury in this
case on mitigated deliberate homicide. It is the State's
contention that the facts of this case indicate nothing but
deliberate homicide and there was no showinff of mitigation.
Mitigated deliberate homicide is a lesser-included
offense of deliberate homicide. State v. Bashor (Mont.
1980), 614 P.2d 470, 487, 37 St.Rep. 1098, 1118; State v.
Baugh f1977), 174 Mont. 456, 459-60, 571 P.2d 779, 781. The
District Court therefore had a duty instruct the jury on
mitigated deliberate homicide if there was evidence to
justify the submission of the lesser crime. In this case the
testimony of Dr. Stratford to the effect that Gratzer was
a.cting under extreme mental or emotional stress created a
fact issue which was sufficient to require the District Court
to submit the lesser crime to the jury for its consideration.
The State also contends that Stratford's evidence was
incredible, hut of course the weight of the evidence is for
the jury.
It is the duty of the State in a criminal prosecution to
prove beyond a reasonable doubt every element of the crime
charged. Does this mean therefore that the influence of
mental or emotional stress is an element that the State must
prove in order to sustain a conviction of mitigated
deliberate homicide as a lesser-included crime? We hold not.
Under the statutory scheme defining homicide in the Montana
Criminal Code of 1973, all purposely and knowingly committed
homicides are deliberate unless committed under the influence
of extreme mental or emotional stress. In defining the
offense of mitigated deliberate homicide, the legislature did
not create an additional element for the State to prove
relating to mental or emotional stress. It simply stated the
kind of mitigation that would reduce a deliberate homicide to
a mitigated deliberate homicide.
The opposite situation was true under the statutes
defining first and second degree murder that preceded the
1973 Criminal Code. Under former law, section 94-2503,
R.C.M. 1947, defined first degree murder as any kind of
willful, deliberate, or premeditated killing, or one which
was committed in perpetration of a crime. The same section
provided that all other kinds of murder were of the second
degree. In interpreting the former statute, this Court
decided that when proof of the homicide by a defendant had
been made by the State, the crime was presumed to be murder
in "the second degree. " St-ate v. Chavez (1929), 85 Mont.
544, 281 P. 352; State v. Kuum (1919), 55 Mont. 436, 178 P.
288; State v. Fisher (1900), 23 Mont. 540, 59 P. 919. But
the burden was then upon the State to introduce evidence
satisfying the jury beyond a reasonable doubt that there was
deliberation and premeditation in order to raise the crime to
murder in the first degree. State v. LeDuc (1931), 89 Mont.
545, 300 P. 919.
The effect of the adoption of the 1973 Criminal Code in
Monta.na was to change radically our legal concepts for proof
of homicide. Formerly, the presumption on proof of a killing
was tha-t the lesser crime had been committed, and the State
had the duty of going forward with the evidence beyond a
reasonable doubt that the greater had been committed. Now
the legal effect of proof of a killing is that the greater
crime has been committed, that of deliberate homicide, unless
the evidence shows mitigation, excuse or justification. We
are fortified in this conclusion by section 45-5-112, MCA,
which provides:
"Inference of mental state. In a deliberate
homicide, knowledge or purpose may be inferred from
the fact that the accused committed a homicide and
no circumstances of mitigation, excuse, or
justification appear. "
We do not construe, as does Gratzer, section 45-5-112,
supra, to require the State in a deliberate homicide case to
negate mitigation beyond a reasonable doubt before the jury
may infer purpose or knowledge. Section 45-5-112, MCA,
imposes no greater burdens upon the State than which. fall
upon it under section 45-5-102, MCA, the statute defining the
elements of deliberate homicide. We regard section 45-5-112
as a statute simply providing for a legal inference by the
jury in a deliberate homicide case when no circumstances of
mitigation, excuse or justification appear. That is the
pla.in language of the statute and we engraft upon it no
burden for either party in a homicide case, since the statute
itself is silent.
This leads us to the consideration whether we should
impose upon the defendant in a deliberate homicide charge,
absent a specific direction by statute, the burden of proving
mitigation so as to reduce the charge to mitigated deliberate
homicide. The state attorney general and the county attorney
are divided on this point, and understandably so. The answer
revolves around whether the mitigation required to reduce
deliberate homicide to mitigated deliberate homicide is an
affirmative defense.
If such mitigation is an affirmative defense, then it is
within the power of the State to allocate the burden of proof
to the defendant by a preponderance of t.he evidence, or
perhaps by a lesser burden. Patterson v. New York (1977),
432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281; State v.
Sorenson (Mont. 1980), 619 P.2d 1185, 37 St.Rep. 1834. The
State is "not required to prove the nonexistence of every
fact which it is willing to recognize as an exculpatory or
mitigating ci.rcumstance affecting the degree of culpability
or the severity of the punishment." Sorenson, 619 P.2d at
1189, 37 St.Rep. at 1838.
Particular affirmative defenses in criminal proceedings
recognized by our statutes are contained in section
46-15-301(2) (a) including "justifiable use of force (formerly
self-defense), entrapment, compulsion, alibi or the defense
that the defendant did not have a particular state of mind
that is an essential element of the offense charged." A
defendant intending to raise one of those enumerated defenses
must give notice to the prosecutor to prevent surprise under
section 46-15-301. Mitigation is not listed in any statute
as an affirmative defense.
We hold that mitigation sufficient to reduce deliberate
homicide to mitigated deliberate homicide is not of itself an
affirmative defense, which would require the burden of proof
to be placed upon the defendant. There are two principle
reasons to so hold. First, the affirmative defenses listed
in section 46-15-301, MCA, constitute complete defenses to
the crimes charged. If the defendant proves an affirmative
defense he is entitled to an acquittal. This is not true in
the case of mitigation reducing a deliberate homicide charge
to a mitigated deliberate homicide. Mitigation simply
involves reducing the deliberate homicide charge to a
1-esser-included crime.
Second, the influence of extreme mental or emotional
stress for which there is reasonable explanation or excuse,
which reduces a deliberate homicide to a mitigated deliberate
homicide may not be classified as an affirmative defense
under the definition in section 46-15-301(2) (a), MCA, "a
particular state of mind that is an essential element of the
offense charged." If it were an essential element of the
offense charged, it would be the duty of the State to prove
such mitigation. In Re Winship (1970), 397 U.S. 358, 364, 90
S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375. We have already
stated that mitigating circumstances are not an element which
the State has to prove. Therefore extreme mental or
emotional stress which constitutes mitigation does not fall
within the definition of section 46-15-301(2) (a), setting out
affirmative defenses.
We therefore hold that since the mitigating
circumstances which reduce deliberate homicide to mitigated
deliberate homicide are not an element of the reduced crime
which the State must prove, nor an affirmative defense which
the defendant must prove, neither party has the burden of
proof as to such mitigating circumstances, although either
party may assume such burden.
This undoubtedly was the view of the District Court when
it promulgated its Instruction No. 10AI which we have set
forth in full above. A careful reading of the instruction
will disclose that the District Court placed no burden on
either party for proof of mitigating circumstances, leaving
it to the jury to examine the evidence and, if mitigating
circumstances appeared in a killing purposely and knowingly
committed by the defendant, the jury could then find the
defendant guilty of mitigated deliberate homicide. We
therefore determine that the jury was properly instructed as
to the elements of the lesser-included crime, mitigated
deliberate homicide, contrary to Gratzer's contentions here.
In this connection, Gratzer argues that the District
Court should have instructed the jurv with two of Gratzer's
proposed instructions. One of the instructions, No. 20,
would have instructed the jury that the State must prove
beyond a reasonable doubt that to sustain the charge of
deliberate homicide, the defendant was not acting under the
influence of extreme mental or emotional stress. The State
is under no duty, as we have said, to negate the influence of
extreme mental or emotional stress in order to prove
deliberate homicide. The State need prove beyond a
reasonable doubt, only the elements of the crime required
under section 45-5-102, MCA, which defines deliberate
homicide.
The second instruction, No. 18, contained the following
language :
"Additionally, you must find that there is evidence
presented by the Defendant to raise a reasonable
doubt as to whether the State has proven that he
was not acting under the influence of extreme
mental or emotional stress for which there is
reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall
be determined from the viewpoint of a reasonable
person in the defendant's situation.
The clarity of the offered instruction is dubious, and was
really only another way of saying that the State was required
to negate the absence of severe mental or emotional stress.
The District Court properly refused the two offered
instructions.
Gratzer also contends that he was entitled to
Instruction No. under the holding this Court in State
V. Crean (191..1), Mont. 47, 114 P. 603.
43 In Crean, the jury
was instructed by the court that the d.efendant had the burden
of proving mitigation, justification, or excuse upon a charge
of murder. The jury was further instructed in Crean that the
amount of evid.ence necessary to be introduced by the
defendant to support mitigation, excuse or justification must
be at least sufficient to create in the minds of the jury,
upon a consideration of all the evidence in the case, a
reasonable doubt. Crean, however, has no a.pplication to this
case. Former section 9282, R.C.M. 1947, now repealed, placed
the burden of proving circumstances of mitigation upon the
defendant. In Crean, the defense of the defendant was
justification for the ki.lling. This Court held that the
quantum of proof imposed upon the defendant to support
justification "was such only as upon the whole case made
would raise a reasonable doubt of his quilt." Crean, 43
Mont. at 55, 11.4 P. at 606. The effect of the holding in
Crean was that if a defendant's proof of justification raised
a reasonable doubt in his guilt to the charge of murder, he
was entitled to an acquittal. Gratzer's offered Instruction
No. 18 did not comprehend the holding in Crean, and would
have misdirected the jury. In Crean, if the defendant's
proof of justification raised a reasonable doubt as to his
guilt, he was entitled to an acquittal; in this case, if
Gratzer's actions in committing the killing were the result
of his extreme mental or emotional stress for which there was
reasonable excuse, he would not be entitled to an acquittal,
but to a conviction on the reduced charge of mitigated
deliberate homicide. Crean, therefore, does not support
Gratzer's contention that he was entitled to the instructions
proffered.
Another issue raised by Gratzer is that two photographs
were improperly introduced and received in evidence by the
court and that bullets were introduced into .evidence
improperly.
Gratzer contends that the photographs, which depicted a
bloody pool and blood spla.shed upon a parked automobile were
prejudical to him, and that only one of the prosecution's
witnesses made a passing reference to the photographs.
Photographs are admissible if they fairly and accurately
represent relevant evidence. State v. Austad (Mont. 1982) ,
641 P.2d 1373, 1380, 39 St.Rep. 356, 362. Pictures of the
crime scene are admissible, if in the determination of the
court, they aid the jury in its fact-finding process. State
v. Woods (Mont. 1983), 662 P.2d 579, 40 St.Rep. 533.
Gratzer also contends that the chain of control of the
bullets was not established in this case so as to comply with
the rule of State v. Close (Mont. 1981), 623 P.2d 940, 38
St.Rep. 177, that the State must identify the particular
exhibit as relevant to the criminal charge and must show
prima facie that no alternation or tampering with the exhibit
has occurred.
We held in State v. Wells (Mont. 1983), 658 P.2d 381, 40
St.Fep. 127, that the State need only make a prima facie
showing that there has been no substantial change in the
evidence, and that after such a showing the burden of proof
shifts to the defendant to show why the evidence should not
be admitted. Here, the evidence indicates that the bullets
were forwarded to the state crime laboratory in a sealed
container, and were received in the state crime laboratory
with the container still sealed. The chain of control is
complete, and there is no evidence of possible tampering
here.
We therefore hold that the photographs and bullets were
properly admitted.
111.
Gratzer further contends that it was improper for the
county attorney, on examination of the psychiatrist who
testified, to bring out that they had been appointed by the
court to examine the defendant. Gratzer's counsel made
timely objection to the questions.
Section 46-14-213, MCA, provides that the jury may not
be informed that the psychiatrist was designated by the court
to examine the defendant. The county attorney's questions
directly violated that statute, and the objections of the
defense counsel should. have been sustained.
It does appear, however, that when the defense
psychiatrist was being examined before the State produced its
psychiatrist, he, perhaps inadvertently, mentioned j.n two or
three instances that he was acting under a court order. The
State now contends since the purpose of section 46-14-213,
MCA, is to avoid the impression that a court-appointed
psychiatri-st has been clothed with the "badge of truth," it
was proper for the District Court to allow the answers by the
State's psychiatrist in order to equalize the positions of
the psychiatrists in the mind of the jury.
We do not condone the propounding of questions in
violation of statutes, especially when beforehand the
District Court had not been alerted to the purpose, but in
this case we hold the allowance of answers to such questions
to be harmless error.
IV.
Our conclusion is that the conviction of the defendant
of deliberate homicide should be affirmed.
We Concur:
Chief Jusfice
Justices
Mr. Justice Frank B. Morrison, Jr. respectfully dissents as
follows:
The single issue at trial regarding the charge against
Karl. Gratzer was whether he should be convicted of deliberate
homicide or mitigated deliberate homicide. Deliberate
homicide is causing the death of another while acting with
purpose or knowledge unless the defendant so acts while under
the influence of extreme mental or emotional stress. If
defendant acted purposefully or knowingly, but while under
severe mental or emotional stress, then defendant is guilty
of mitigated deliberate homicide rather than deliberate
homicide.
The burden of proving that defendant acted purposely and
knowingly is on the State and the State must prove this
mental state beyond a reasonable doubt. The question here is
who has the burden of proving the existence or absence of
severe mental or emotional stress.
The majority opinion finds that neither party has the
burden of proof but the jury just makes a determination with
no legal standards. This, of course, is impossible. If the
jury finds the evidence presented by the prosecution and by
the defense to be evenly balanced, then who would prevail?
The law in Montana is clear and has been since the
Supreme Court of Montana decided State v. Crean, 43 Mont. 4 7 ,
114 P. 603 (1911). In the Crean case, the trial court
instructed the jury as follows:
"As to the amount of evidence necessary to be
introduced by the defendant so as in law to
mitigate, excuse, or justify the homicide, you are
instructed it must be at least sufficient to create
in the minds of the jury, upon a consideration of
all of the evidence in the case, a reasonable
doubt. "
The above instruction was affirmed by the Supreme Court.
Under the law, the defendant has the burden of coming
forward with evidence of severe mental or emotional stress
sufficient to raise a reasonable doubt. Thereafter, the
State has the burden of proving beyond a reasonable doubt
that defendant acted absent severe mental or emotional
stress. If the State fails in its burden to exclude severe
mental or emotional stress, but succeeds in proving purpose
or knowledge causing death, then the jury must convict of
mitigated deliberate homicide rather than deliberate
homicide.
The trial court in this case failed to properly instruct
the jury. The trial court simply set forth the statutory
definition of mitigated deliberate homicide without
instructing the jury about the burden of proof. The jury was
left to speculate. Defendant, in this case, introduced
psychiatric testimony supporting the defense position that
defendant operated under severe mental or emotional stress.
In weighing this evidence the jury must necessarily have had
an instruction with respect to burden of proof. The
evidence, as a matter of law, was sufficient to raise a
reasonable doubt and the State had to exclude mitigation
beyond a reasonable doubt.
The majority opinion which relieves the State of its
burden, and in effect, leaves the jury with no legal standard
whatever, violates the defendant's due process rights. The
error is so apparent that a review by a federal court will
Mr. Justice Daniel J. Shea:
I concur in the foregoing dissent of Mr. Justice Morrison.