No. 88-156
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1988
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
SCOTT CLYDE MAGRUDER,
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 C o u r t of t h e T h i r t e e n 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 C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e D i a n e G . R a r z , Judge p r e s i d i n g .
COITNSEL O F RECORD:
For A p p e l l a n t :
A r t h u r J. T h o m p s o n ; T h o m p s o n & S e s s i o n s , B i l l i n g s ,
Montana
For R e s p o n d e n t :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R . R o b e r t s , A s s t . A t t y . G e n e r a l , H e l e n a
1
-
H a r o l d F. H a n s e r , County Attorney, Billings, Montana
S u b m i t t e d on B r i e f s : S e p t . 1, 1 9 8 8
Decided: November 1 7 , 1 9 8 8
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This case arises out of the District Court for the
Thirteenth Judicial District, Yellowstone County. Mr.
Magruder was convicted of felony assault and mitigated delib-
erate homicide, in a jury trial. He appeals. We affirm.
The issues are:
1. Did the District Court err by allowing the testimony
of the victim's daughter regarding the telephone call from
Mr. Magruder to the victim?
2. Were Mr. Magruder's proximate cause instructions
properly rejected?
Mr. Magruder and the victim had become acquainted
through a woman over whom they had a continuing disagreement.
On the evening of June 4, 1987, Mr. Magruder placed a tele-
phone call to the victim. The victim's daughter, who origi-
nally answered the phone, testified at trial that her father
seemed worried after the conversation and told her that he'd
better be "packing a piece" because Mr. Magruder would he
packing a piece and would be there later.
Two acquaintances of Mr. Magruder testified that thev
saw him driving his truck about 10 p.m. that evening. They
both testified that Mr. Magruder's truck was weaving on the
road and up onto the curb. The male acquaintance testified
that after he offered to drive Mr. Magruder to a bar, Mr.
Magruder pointed a gun at him from his truck and followed him
for several blocks. The second acquaintance testified that
she saw a gun pointed at them and that she feared Mr.
Magruder would shoot them.
Several persons saw Mr. Magruder park his truck near the
apartment where the victim and the woman lived. Mr. Magruder
got out of his truck and attempted to buy cigarettes from one
witness across the street. Mr. Magruder then got hack into
his truck. As he did so, the victim drove up. The victim
walked quickly to the driver's side of Mr. Magruder's truck,
where he spoke with Mr. Magruder for a few minutes. Several
witnesses heard a shot fired, after which Mr. Magruder drove
away. The victim lay on the ground dying from a shotgun
blast to his abdomen. He had a gun tucked in the waistband
of his pants. Shortly thereafter, Mr. Magruder was arrested
and his shotgun was recovered.
Mr. Magruder testified in his own behalf. He stated
that the victim approached his truck and asked him to step
out, then grabbed his shotgun and was shot in the ensuing
struggle over the gun. The jury convicted Mr. Magruder of
felony assault as to the two acquaintances who offered him a
ride and of mitigated deliberate homicide as to the victim.
This appeal involves only the mitigated deliberate homi.clide
conviction.
I
Did the District Court err by allowing the testimony of
the victim's daughter regarding the telephone call from Mr.
Magruder to the victim?
The defense objects to the followi-ng testimony of the
victim's daughter:
Q. Tell us how your father appeared when the
phone call ended, please.
A. He appeared very worried, very upset.
Q. Did your father tell you the substance of
the telephone call?
MR. ADAMS: Object again on the grounds it
is hearsay.
THE COURT: The objection is overruled.
A. He told me that Scott had told him--
Q. Just answer "yes or no" first. Did he
tell you?
A. Yes, he did.
Q. And when did he do that?
A. When he hung up the phone.
Q. So, right after the telephone call?
A. Yes, right after the telephone call.
Q. And he was very nervous and concerned?
A. He was very worried, yes.
Q. What did he tell you the phone call was
about?
A. Well, I had to ask him a few times. And
he told me that Scott, that he was under the im--
pression that Tina was there with Scott, and he
was, and he said that Scott told him that he wasn't
trying to take his woman away from him, and that if
there was any problems that they would settle their
differences. And my dad said that he told him
there was no problem. And he told him that he
would be down later to settle their differences,
and that he better be packing a piece because Scott
was packing a piece.
Q. It was your first statement that Scott
said he would be down to settle their differences,
meaning Scott Magruder?
A. Yes.
Q. And that he, Scott Magruder would he
packing a piece?
A. Yes.
Q. And that your father had better be packing
one?
A. Yes.
Q. Did you father continue to seem worried?
A. Yes, he did.
The defense argues that the testimony about what the victim
said and about what the victim said Mr. Magruder said is
inadmissible hearsay. It asserts that the lower court erred
in admitting this testimony.
Hearsay is a statement, not made by the declarant while
testifying at the trial or hearing, which is offered in
evidence to prove the truth of the matter asserted. Rule
801(c), M.R.Evid. Generally, hearsay is not admissible into
evidence. Rule 802, M.R.Evid. However, a number of excep-
tions to this general rule are set forth in Rules 803 and
804, M.R.Evid. In review on appeal, determinations as to the
admissibility of evidence will not be reversed unless the
trial iudqels rulincr represents an abuse of dj-scretion.
State v. Caryl (1975), 168 Mont. 414, 431, 543 P.2d 389,
398-99.
The District Court instructed the jury that the above
testimony was
not offered to prove the truth of the matter as--
serted, but rather to show the victim's then exist-
ing state of mind. You are to consider the
statements only in regard to the victim's state of
mind and for no other purpose.
The purpose set forth by the judge suggests that the testimo-
ny as to what the victim said would be admissible under the
exception set forth at Rule 803(3), M.R.Evid.:
Then-existing mental, emotional, or physical condi-
tion. A statement of the declarant's then-existing
state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design,
mental feeling, pain and bodily health), but not
including a statement of memory or belief to prove
the fact remembered or believed.
The case which the dissent states parallels the facts
here, United States v. Brown (D.C.Cir. 1974), 4 9 0 F.2d 758,
differs from the present case in an important respect. In
that case, the defendant raised no claim of self-defense.
Brown, 4 9 0 F.2d at 7 8 0 . The court in Brown acknowledged that
such a defense would make a difference.
The threshold requirement of admissibility of
such hearsay statements of fear of defendant in
homicide cases is some substantial degree of rele-
vance to a material issue in the case. While there
are undoubtedly a number of possible situations in
which such statements may be relevant, the courts
have developed three rather well-defined categories
in which the need for such statements overcomes
almost any possible prejudice. The most common of
these involves defendant's claim of self-defense as
justification for the killing. When such a defense
is asserted, a defendant's assertion that the
deceased first attacked him may be rebutted by the
extrajudicial declarations of the victim that he
feared the defendant, thus rendering it unlikely
that the deceased was in fact the aggressor in the
first instance.
Brown, 490 F.2d at 767. At the first omnibus hearing, Mr.
Magruder's attorney stated that self-d-efensewould be raised.
At trial, defendant's testimony was that the shooting oc-
curred as the victim pulled on the muzzle of his gun. The
jury was instructed on self-defense. Brown thus provides
reasoning to allow the victim's statements into evidence in
the present case.
Under the District Court's instruction, the testimony
about what Mr. Magruder said to the victim was not offered to
prove its truthfulness (that Mr. Magruder really would be
carrying a gun), but only to show the victim's state of mind.
Under that instruction, then, the statement of Mr. Magruder
to the victim was not hearsay because it was not offered in
evidence to prove the truth of the matter asserted.
We hold that the District Court did not abuse its dis-
cretion in admitting the daughter's testimony for the purpose
of showing the victim's state of mind.
IT
Were Mr. Magruder's proximate cause instructions proper-
ly rejected?
Mr. Magruder offered four jury instructions on proximate
causation. He argues that when the court refused to give
those instructions, he was deprived of the opportunity for
the jury to consider his theory that the victim's death was a
result of the victim's own negligence.
Proximate cause is not a term which is generally used in
criminal jury instructions under Montana's Criminal Code of
1973. The Criminal Law Commission Comment to 5 45-2-201,
MCA, which defines "cause" for purposes of the criminal code,
states that problems created by concepts of proximate cause
"should he faced as problems of the culpability required for
conviction and not as problems of causation." The Court i.s
not able to envision a case under our present criminal code
in which a proximate cause instruction would be appropriate.
If the instructions given to the jury fully and fairly
convey the elements of criminal homicide, this Court must
consider that the jury has been properly instructed. State
v. Collins (1978), 178 Mont. 36, 45, 582 P.2d 1179, 1184.
Instruction No. 5 given in this case stated that each element
of the offense must be proven beyond a reasonable doubt.
That instruction also defined "act," "purposely," "knowing-
ly," and "negligently." Instruction No. 10 set forth the
statutory definitions of deliberate homicide, mitigated
deliberate homicide, and negligent homicide. Instructions
No. 12, 13, and 14 set forth the elements of deliberate,
mitigated deliberate, and negligent homicide. Instruction
No. 24 stated that the jury should first consider whether the
elements of deliberate homicide had been proven. If not,
they should consider whether mitigated deliberate homicide
had been proven. Finally, if the elements of mitigated
deliberate homicide had not been proven, the jury was to
consider the issue of negligent homicide. Since the jury
found Mr. Magruder guilty of mitigated deliberate homicide,
it never reached consideration of negligent homicide.
We conclude that the instructions given the jury in this
case fully and fairly conveyed the elements of criminal
homicide. We hold that the refusal of Mr. Magruder's pro-
posed instructions on proximate cause was not error.
Affirmed.
Justices
Mr. Justice John C. Sheehy, dissenting:
I dissent from the approval of the hearsay statement
which was admitted to evidence in this case.
The majority's handling of the hearsay problem skims too
lightly over the very problematic nature of the testimony.
Professor Moore reports that when the federal
counterpart of Rule 803 (3) came before the House, j . t was
approved under the following limitation:
Rule 803 (3) was approved in the form submitted by
the court to Congress. However the Committee
intends that the rule be construed to limit the
doctrine of Mutual Life Insurance Company v.
Hillmon (1892), 145 U.S. 285, 295-300, so as to
render statements of intent by a declarant.
admissible only to prove his future conduct, not
the future conduct of another person.
11 Moore's Federal Practice 11 803(3) [21 (2d ed. 1948) at
VIII-80.
In Hillmon, the United States Supreme Court held letters
from one Walters expressing intent to travel with Hillmon
were admissible as circumstantial proof both that Walters
went and that he went with Hillmon. The report of the House
Committee indicates the intent of that Committee that the
ruling of Hillmon was the limit of the bounds as far as
admitting hearsay was concerned.
Like declarations purporting to show the victim's state
of mind have been rejected. In United States v. Kaplan (2d
Cir. 19741, 510 F.2d 606, a conviction for possession or sale
of narcotics was reversed because the Drug Enforcement Agent
was allowed to testify that a declarant out of court had
spoken of the defendant as "his connection." Despite a
careful instruct.ion limiting this testimony to proof of the
agent's state of mind, the court of appeals held the
declaration too prejudicial to be admitted.
In United States v. Brown (D.C. 1973), 490 F.2d 758,
there are facts that parallel exactly what occurred in the
case at bar. In Brown, the testimony by the wife of a
murdered man that her husband had said he feared the
defendant might kill him was held admissible under Rule
803(3) to prove the victim's state of mind, but excluded
nonetheless as too prejudicial, under Rule 403.
The majority discounts the preced-ential authority of
United States v. Brown, supra, pointing out that testimony of
an oral statement such as this case concerns is admissible
where the defendant relies on self-defense. Two facets of
this case belie that distinction. First, Magruder did not
rely on self-defense; rather, he based his defense upon
accidental discharge of a firearm. Second, the facts
strongly show that the victim himself was the aggressor in
that he drove his vehicle next to Magruder's truck, and then,
"packing a piece," he went to the driver's side of Magruder's
vehicle. The only remaining testimony of what occurred there
is from Magruder himself who stated that the victim grabbed
his shotgun which was discharged in the ensuing struggle over
the gun.
Now, it is also true that where the defense is that of
accidental discharge, testimony of oral statements regarding
the victim's state of mind are admissible, if the state of
mind of the victim is an issue. United States v. Brown, 490
F.2d 758, 767. However, the question then becomes even if
the evidence is relevant, should it not be refused because of
the overwhelming prejudicial effect as against the defendant?
The admissibility of these kinds of statements is one of the
most vexing problems facing courts in these types of cases,
and since both the majority here and this writer, in dissent,
rely on United States v. Brown, it is recommended to the
reader that substantial study be given to the Brown case. In
it, there is a rather elaborate dissection of the problems
involved, and of their proper resolution. It is especially
true in Brown that the court set out the reasons why a
limiting instruction which tells the jury that the testimony
can only be used to determine the state of mind of the victim
is in most cases impossible to follow.
For example:
Quite a number of courts have confronted facts
similar to those here involving hearsay statements
made by the victim of a homicide which
inferentially implicate the defendant. Such
statements by the victims often include previous
threats made by the defendant towards the victim,
narrations of past incidents of violence on the
part of the defendant or general verbalizations of
fear of the defendant. While such statements are
admittedly of some value in presenting to the jury
a complete picture of all the facts and
circumstances surrounding the homicide, it is
generally agreed that their admissibility must be
determined by a careful balancing of their
probative value against their prejudicial effect.
Courts have recognized that such statements are
fraught with inherent dangers and require the
imposition of rigid limitations. The principal
danger is that the jury will consider the victim's
statement of fear as somehow reflecting on
defendant's state of mind rather than the
victims--i.e. as a true indication of defendant's
intentions, actions or culpability. Such
inferences are highly improper and where there is a
strong likelihood that they will be drawn by the
jury, the danger of injurious prejudice is
particularly evident. (Emphasis in original. 1
It is on the point of exclusion even when the testimony
is relevant, the court in United States v. Rrown speaks out
strongly:
There are number of other cases which have allowed
in testimony of this type on the basis of various
errors in reasoning or simple lack of concern. One
of the principal problems which brings this about
is a court's understandable eagerness to find an
"easy" rule, simple in operation. This leads to a
tendency to adopt a mechanistic approach devoid of
analysis. For example, in State v. Radabaugh, 93
Idaho 727, 471 P.2d 582 (1970), the Idaho Supreme
Court, dealing with a hearsay declaration of fear
on the part of the deceased victim, simply
identified the statement as probative on the issue
of the state of mind of the declarant, referred to
the fact that a limiting instruction had been given
and then pronounced it admissible in a conclusory
and offhanded manner. Such a simplistic approach
sidesteps any preliminary determination of
relevance and does not begin to weigh the possible
prejudice contained in such statements.
The real problem with the approved testimony in this
case is that under cover of showing the victim's state of
mind, the testimony points instead to the victim's
declaration of Magruder's state of mind. The daughter's
testimony in this case was hearsay since she received it from
the victim, and because what the victim reported to her was a
further hearsay statement from Magruder, the entire testimony
consisted of hearsay within hearsay. Under Rule 805, hearsay
included within hearsay is not admissible unless each part of
the combined statement conforms with the exceptions to the
hearsay rule as provided in Rules of ~vidence. Here, Scott
Magruder's reported statement to the victim cannot be brought
within any exception to the hearsay rule.
The extremely prejudicial effect of the testimony could
not be cured by any instruction of the District Court to the
jury. This is a case for the application of the "hot poker"
rule, that is, that the effect of being rammed by a hot poker
is not cured by the v~ithdrawal of the poker. As Justice
Cardozo said in Shepard v. United States (1933), 290 U.S. 96,
.
. . It will not do to say that the jury might
accept the declarations for any light that they may
cast upon the existence of a vital urge, and reject
them to the extent that they charged the death to
someone else. Discrimination so subtle is a feat
beyond the compass of ordinary minds. The
reverberating clang of those accusatory words would
drown all weaker sounds. It is for ordinary minds,
and not for psychoanalysts, that our rules of
evidence are framed ...
I would hold the admission of the hearsay evidence in
this case as reversible error, and remand for a new trial.
& s , 2 L k qii
,
,?ustice
Mr. Justice William E. Hunt, Sr.:
I concur in the dissent of Mr. Justice Sheehy.