No. 87-424
I N THE SUPREME COURT OF THE STATE O F MONTANA
1988
THE STATE O F MONTANA,
P l a i n t i f f d% R e s p o n d e n t ,
-VS-
LESTER WILLIAM CRAZY BOY,
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 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 C o u n t y of C a s c a d e ,
T h e H o n o r a b l e J o h n M c C a r v e l , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
P a t r i c k F. Flaherty, G r e a t F a l l s , Montana
For R e s p o n d e n t :
Mike Greely, A t t o r n e y General, Helena, Montana
Betsy Brandborg, Asst. Atty. General, Helena
P a t r i c k L. P a u l , C o u n t y A t t o r n e y , G r e a t Falls, Montana
Jeff M c A l l i s t e r , D e p u t y C o u n t y A t t y . , G r e a t F a l l s
S u b m i t t e d on B r i e f s : May 6 , 1 9 8 8
Decided: June 2 1 , 1 9 8 8
Filed:
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Lester William Crazy Boy (defendant) appeals from a
Cascade County District Court order denying his motion for a
new trial after his conviction for deliberate homicide. We
affirm.
On March 3, 1987, defendant attended a party at an
apartment in Great Falls, Montana. At approximately 10:15
p.m. that night, Jess Monty Cochran (Cochran) arrived at the
apartment and asked where the women were. Another person
present at the party, Xavier Ortiz, answered that defendant
was the closest thing to a woman at the party to imply that
defendant was homosexual. Cochran proceeded to assault
defendant who was passed out in a sitting position on a
couch. Defendant awakened and attempted to defend himself.
The fight was broken up only to be resumed a few minutes
later. Cochran apparently had an aversion for homosexuals
and continued to badger and insult defendant during the
evening.
The suggestion was made that the two men take their
fight outside. Cochran went to the front door and waited for
defendant. Defendant went to the kitchen and selected a
five-inch serrated kitchen knife. Defendant then approached
Cochran while Cochran's back was turned. Defendant grabbed
Cochran, turned him around, said "nobody calls me a ...
queer," and proceeded to stab Cochran. Cochran died the next
day of a severed renal vein.
Defendant was charged by information on March 5, 1987,
with deliberate homicide pursuant to .§ 45-5-102 (1) (a), MCA,
for the stabbing death of Jess Cochran. A jury convicted
defendant of deliberate homicide on July 9, 1987. On August
26, 1987, the District Court heard arguments on defendant's
motion for a new trial and denied the motion on the same day.
Defendant appeals from the order denying his motion for a new
trial and raises the following issues:
1. Is there substantial evidence in the record to
support a conviction for the crime of deliberate homicide?
2. Did the District Court err in excluding evidence
regarding the nature of the apartment where the stabbing took
place, demonstrative evidence of defendant's fighting
abilities, and evidence of the victim's prior violent acts?
3. Was the jury properly instructed on the law of
circumstantial evidence, self-defense, and the duty to
retreat?
4. Is defendant entitled to a new trial on the basis
of jury misconduct?
The standard of review here is whether the evidence,
when viewed in a light most favorable to the State, is
sufficient for a rational trier of fact to have found the
essential elements of the crime beyond a reasonable doubt.
State v. Gilpin (Mont. 1988), P.2d , 45 St.Rep. 863,
873; State v. Tome (Mont. 19871, 742 P.2d 479, 481, 44
St.Rep. 1629, 1630; State v. Geyman (Mont. 19861, 729 P.2d
475, 476, 43 St.Rep. 2125, 2126. We have reviewed the record
and conclude that there is substantial evidence which
satisfies the required standard of review.
Defendant was convicted of deliberate homicide pursuant
to $ 45-5-102 (1)(a), MCA, which provides that " [a] person
commits the offense of deliberate homicide if ... he
purposely or knowingly causes the death of another human
being. " Defendant contends that the evidence can only
support an acquittal based on the defense of justifiable use
of force. Defendant urges this Court to review the testimony
of certain eyewitnesses to the crime to conclude that the
jury was mistaken in finding him guilty. It was the jury's
prerogative to accept or reject defendant's claims of self
defense in this case. State v. Van Hael (1983), 207 Mont.
162, 166-167, 675 P.2d 79, 81-82. When confronted with two
versions of the incident in question, one version which
supports acquittal and another which supports a conviction,
the jury must determine which version is reasonable. Cf.
Tome, 742 P.2d at 481. In addition to defendant's alleged
evidence, the jury was also presented with evidence that
defendant, instead of remaining in the kitchen, selected a
five-inch knife, approached an unarmed Cochran from behind,
and stabbed him several times. A reasonable trier of fact
could have concluded from the evidence that defendant was
guilty of deliberate homicide.
Defendant next contends that the District Court erred
in making certain evidentiary rulings. The first contested
evidentiary ruling concerns testimony regarding the nature of
the apartment complex in which the crime occurred. Defendant
sought to solicit testimony from several witnesses which
tended to show that the apartment complex was "condemned,
filthy, substandard, and a dangerous hovel." This evidence,
defendant asserts, is relevant to support an inference that
he was placed in fear of bodily injury because dangerous
surroundings can "magnify the fear of the victim
[defendant]." Defendant does not cite any legal authority to
support this assertion.
It is within the discretion of the District Court to
rule on the admissibility of evidence and we will not disturb
the District Court's ruling unless there was an abuse of that
discretion. State v. Breitenstein (1979), 180 Mont. 503,
509, 591 P.2d 233, 236. The State contends that the offered
evidence concerning the apartment complex is not relevant to
any issue in this case. We agree. Evidence of the history
of the apartment complex is not relevant as to whether
defendant knowingly or purposely committed deliberate
homicide nor is the evidence relevant to his claim of self
defense. Rules 401, 402, M.R.Evid. We hold that the
District Court did not abuse its discretion and properly
excluded the evidence in question.
Defendant also believes that the District Court should
have allowed him to give the jury a demonstration as to "how
he punches like a woman, blocks like a sissy and why a knife
was an appropriate choice [to equalize Cochran's fighting
prowess]." Defendant argues that this evidence tends to show
that he could not defend himself without the use of a weapon.
The District Court refused to allow a "side show" of
defendant's ability to defend himself. The State points out
that the record contains ample evidence of defendant's
fighting abilities and argues that the District Court did not
err in prohibiting actual physical demonstrations. We agree.
The demonstrative evidence in question was cumulative and its
exclusion does not constitute reversible error. Rule 403,
M.R.Evid.; State v. Short (Mont. 1985), 702 P.2d 979, 983, 42
St.Rep. 1026, 1031.
Defendant next contends that the District Court should
have allowed him to introduce evidence of Cochran's prior
violent acts. The District Court ruled that such evidence
was admissible only if defendant was aware of Cochran's
violent propensities at the time of the crime. No objection
was made to the District Court's ruling on this matter at the
time of trial. Defendant concedes that he was unaware of
Cochran's violent history and that such evidence is
inadmissible, but urges this Court to adopt a new rule. We
need not address defendant's request that we adopt a new rule
of law on this issue because we will not address an issue
raised for the first time on appeal. Gilpin, P.2d at
, 45 St.Rep. at 876.
Defendant's third contention of error deals with the
District Court's refusal to give four jury instructions.
Defendant offered a jury instruction regarding the effect of
circumstantial evidence which the District Court refused on
the grounds that the instruction could only be given in a
case based solely on circumstantial evidence. The offered
jury instruction in question contained the followi-ngrelevant
language :
[Ilf the jury after careful and impartial
consideration of all the evidence in the
case, has a reasonable doubt that a
defendant is guilty of the charge, it
must acquit. If the jury views the
evidence in the case as reasonably
permitting either of the two
conclusions -- one of innocence, the
other of guilt -- the jury should of
course adopt the conclusion of innocence.
Defendant argues that the above portion of the instruction
was necessary because he "was in an alcoholic blackout on the
night in question and had no ability to recall and testify to
his state of mind and the reasonableness of his actions."
Defendant asserts that his subjective state of mind can
only be judged by direct eyewitness testimony. It is exactly
the direct evidentiary nature of this eyewitness testimony
which serves to defeat defendant's claim for his offered
instruction. State v. Ryan (Mont. 1987), 744 P.2d 1242,
1244, 44 St.Rep. 1735, 1737. This case was based solely on
direct evidence. The eyewitnesses testified as to the events
surrounding the crime. Defendant's offered instruction is
proper where the State's case rests substantially or entirely
on circumstantial evidence. State v. Stever (Mont. 1987),
732 P.2d 853, 859-60, 44 St.Rep. 283, 291.
Defendant also makes a passing argument that the
District Court erred in refusing to instruct the jury on the
State's burden of proof, self-defense, and the duty to
retreat. The District Court refused several of defendant's
offered instructions on the grounds that the instructions
were incorrect statements of the law and/or that other given
instructions sufficiently covered relevant legal theories.
The State directs our attention to the jury instructions
given in this case to argue that it is not error for the
District Court to refuse an instruction that is adequately
covered by the instructions that were given as long as the
rights of the defendant were fully protected. We have
reviewed the instructions given and refused and agree with
the State that the District Court did not err in instructing
the jury. State v. Sunday (1980), 187 Mont. 292, 609 P.2d
1188.
Defendant's final contention of error is that the
District Court should have granted a new trial because a
juror allegedly read a July 9, 1987, article in the Great
Falls Tribune newspaper which contained the following:
Deputy County Attorney, Steve Hagerman,
who with colleague Jeff McAllister is
prosecuting Crazy Boy told McCarvel "the
evidence is replete he has resorted to
fisticuffs in the past, and to knives.''
He mentioned instances from past reports
that Crazy Boy hit another man with a
beer bottle, and was arrested for
misdemeanor assault after waiving a
knife.
In support of defendant's motion for a new trial, defendant's
attorney submitted an affidavit from his secretary in which
she claims to have heard a juror admit to reading the
newspaper and articles about the trial during trial.
Section 25-11-102 (2), MCA, provides the following
language pertinent to this issue:
The former verdict or other decision may
be vacated and a new trial granted on the
application of the party aggrieved for
any of the following causes materially
affecting the substantial rights of such
party:
(2) misconduct of the jury. Whenever
any one or more of the jurors have been
induced to assent to any general or
special verdict or to a finding on any
general or special verdict or to a
finding on any question submitted to them
by the court by a resort to the
determination of chance, such misconduct
may be proved by the affidavit of any one
of the jurors.
In light of the above statute, defendant's argument must fail
for two reasons. First, defendant has not identified the
juror nor has he submitted an affidavit from that juror.
Second, defendant has failed to show that the juror was
induced to assent to the verdict in this case or that any of
defendant's rights have been materially affected. In short,
defendant has shown no prejudice and the District Court did
not err in denying his motion for a new trial.
Affirmed.
We concur: