No. 92-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff
-vs-
BAR1 LYNNE LOSSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and f o r the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For A p p e l l a n t :
Arthur J. Thompson; Thompson & Sessions
Billings, Montana
Michael G. Eiselein, Attorney at Law,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General: Patricia
J. Jordan, Assistant Attorney General, Helena,
Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: August 26, 1993
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
A jury in the Thirteenth Judicial District Court, Yellowstone
County, convicted Bari Lynne Losson (Bari) of mitigated deliberate
homicide for the shooting death of her husband, Rick Losson (Rick).
The court sentenced her to twenty years with ten years suspended,
plus a consecutive six-year term for the use of a weapon. She
appeals. We affirm.
The issues are:
1 Did the District Court err by admitting hearsay statements
.
of Rick?
2. Did the District Court abuse its discretion in sentencing
Bari?
3. Did the District Court err in granting the State's amended
information which charged Bari, for the second time, with
deliberate homicide?
Rick and Bari had a history of domestic problems. In fact,
Rick beat Bari on numerous occasions and he was convicted three
times for battering her.
Following a domestic disturbance, Bari purchased a .38 Special
pistol. On March 13, 1990, after a day of heated argument with
Rick, she used the pistol to kill him.
On that day at about 8:00 p.m., the couple was arguing. Rick
charged out of the couple's trailer, yelling at Bari. Bari shot at
him. She chased him down the street, continuing to fire at him
with the revolver. In total, she fired six shots, hitting him once
in the thigh. The sixth shot penetrated his chest, killing him
instantly.
The State charged Bari with deliberate homicide. She raised
the affirmative defense of self-defense. Following plea
negotiations, the State amended the information to charge mitigated
deliberate homicide. The State agreed to recommend a sentence of
thirty years, twenty-five suspended, and info m e d Bari it would
seek an additional ten years for her use of a weapon. Bari
accepted the plea agreement.
On July 10, 1991, Bari pled guilty to mitigated deliberate
homicide. Sentencing was scheduled for August 29, 1991. However,
the State acquired evidence which suggested Bari killed Rick to
gain $106,000 in life insurance.
After an investigation, the county attorney informed defense
counsel that he intended to support his argument for the ten-year
use of a weapon sentence by introducing evidence to prove Bari
killed Rick in an attempt to recover $106,000 in life insurance.
Instead of complying with the plea agreement, Bari withdrew her
plea of guilty on the charge of mitigated deliberate homicide.
In September 1991, the State recharged Bari with deliberate
homicide. The State recharged her, contending that Bari killed
Rick to gain $106,000 in life insurance.
The trial began on February 25, 1992. On the second day of
trial, the court granted Bari's motion to exclude all evidence
pertaining to the life insurance.
On March 7, 1993, t h e j u r y found Bari guilty of m i t i g a t e d
deliberate homicide. The District Court sentenced her on March 8,
1992, to twenty years, ten suspended, plus a consecutive six-year
term for the use of a weapon. She appealed on June 2, 1992.
Did the District Court err by admitting hearsay statements of
Rick?
The State offered three people who testified to statements
Rick had made before he died. The court admitted the testimony,
but gave a limiting instruction immediately following each
contested statement.
First, a counselor at Beta Alternatives testified that Rick
had said Bari "threatened to kill him in the past." The court
supplied the jury with the following instruction:
Ladies and gentlemen, the testimony that you have just
heard, to-wit, that Mr. Losson said to [a counselor]
. that Mrs. Losson had threatened to kill him in the
..
past, is not offered to prove the truth of the matter
asserted. In other words, that she intended to do that
act, but rather it is offered and its purpose is limited
to show Mr. Losson's state of mind. That is the hearsay
exception which it can be admitted under. Accordingly,
you are not to consider the testimony for any purpose but
as it regards Mr. Losson's state of mind.
Next, Rick's boss at Hardee's testified that Rick had said
"Bari would kill him if he ever moved out." The court gave a
similar instruction to the jury.
Finally, Rick visited an officer in the Naval Reserves to
inquire about the possibility of returning to active duty status
during the Dessert Storm conflict. The officer testified that Rick
had said he wanted to go active because "[hie was afraid of his
wife and thought she was going to kill him." Again, the District
Court gave a similar instruction to the jury.
The State argues that Rick's statements were relevant because
Bari asserted the claim of self-defense. We agree.
We have previously concluded that a victim's state of mind is
especially relevant in a homicide case where the defendant asserts
the claim of self-defense. State v. Magruder (1988), 234 Mont.
492, 496, 765 P.2d 716, 719 (citation omitted). The relevant issue
is whether the victim feared the defendant. If a victim has
previously announced that he was fearful of a defendant, the jury
could infer from that statement that it is unlikely the victim
attacked the defendant. Maaruder, 765 P.2d at 719 (citation
omitted). If the jury infers that it is unlikely the victim
attacked the defendant, it follows that the defendant could not
have acted in self-defense. Effectively, testimony about the
victim's state of mind rebuts the defendant's claim of self-
defense .
Here, Rick's statements to the three witnesses are relevant to
the issue of whether Rick feared Bari. Bari, by claiming self-
defense, opened the door for the prosecution to rebut that defense
with the state of mind statements, which established Rick's fear of
Bari. We hold that the three statements were relevant.
Next, Bari argues that these statements are inadmissable
hearsay. We disagree.
Hearsay is a statement made out of court, which is offered in
court to prove the truth of the matter asserted. Rule 801(c),
M.R.Evid. Rule 801(c), M.R.Evid. reads:
[hlearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.
Although the distinction between hearsay and non-hearsay state of
mind statements is somewhat confusing, a leading case from the
District of Columbia Court of Appeals lends clarification. U.S. v.
Brown (D.C. Cir. 1973), 490 F.2d 758. That court delineated the
distinction between hearsay and non-hearsay as it related to state
of mind evidence. The distinction turns on whether the statement
is evidence which directly proves the declarant's state of mind or
whether the statement is evidence which circumstantially proves the
declarant's state of mind. Brown, 490 F.2d at 762-63.
If the evidence circumstantially proves the declarant's state
of mind, then the evidence is not offered to prove the truth of the
matter asserted and the evidence is not hearsay. Brown, 490 F.2d
at 762-63. The Brown court explained that:
the statement "X is no goodu circumstantially indicates
the declarant's state of mind toward X and, where that
mental state is a material issue in the case, such
statement would be admissible with a limiting
instruction. Technically [the statement] is not even
hearsay since it is not being admitted for the truth of
the matter alleged. We do not care whether X is in fact
"no good" but only whether the declarant disliked him.
Similarly, here, we conclude that the first two statements are
not hearsay. The State did not introduce the statement that Bari
"threatened to kill him in the past" to prove the fact that she
threatened to kill Rick. Nor did the State offer the statement
that "Bari would kill him if he ever moved out" to prove the fact
that she contemplated killing Rick if he moved out of the house.
Rather, these statements circumstantially indicated Rick's
state of mind toward Bari; that he feared her. The jury was
instructed not to consider whether Bari, in fact, threatened to
kill or would kill Rick. Instead, the jury was instructed to
consider Rick's state of mind; whether he was afraid of Bari. We
hold that the first two statements were not hearsay.
Alternatively, when the evidence directly proves the
declarantls state of mind, the evidence is introduced to prove the
truth of the matter asserted and is hearsay. Brown, 490 F.2d at
762-63. The Brown court rationalized that:
the statement "1 hate X" is direct evidence of the
declarant's state of mind and, since it is being
introduced for the truth of the matter alleged, must be
within some exception to the hearsay rule in order to be
admissible.
Here, the third statement that Rick "was afraid of his wife
and thought she was going to kill him" is direct evidence of Rick's
fear. The State introduced the statement to prove the truth of the
matter asserted in the statement or to prove that Rick was afraid
of his wife. Since the statement was offered to prove that Rick
feared Bari, the statement is hearsay. However, Rule 803(3)
M.R.Evid., allows an exception:
[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 State contends, and we agree, that the third statement
meets the hearsay exception of Rule 803 (3), M.R.Evid. The
statement was offered to explain ~ick's state of mind when he
sought to reenlist to active duty in the Navy. We hold that the
third statement meets the hearsay exception of Rule 803 (3),
M.R. Evid.
Although the District Court admitted the three statements
under Rule 803 (3) , M.R. Evid., generally, "we will affirm the
decision of the trial court [if it correctly admits the statements]
regardless of its basis in admitting the statements." State v.
McCord (1992), 251 Mont. 317, 325, 825 P.2d 194, 200. Here, the
District Court correctly admitted the statements and gave limiting
instructions after admitting each statement. Since the court
correctly admitted the statements, we affirm its decision.
Bari contends that the District Court should not have admitted
the three statements because the statements were not trustworthy,
reliable or credible. She suggests that Rick made the statements
to fabricate an in-advance corroboration of the defense he planned
to use the next time he was arrested for beating her. Bari argues
that the court should have made a determination on the reliability,
trustworthiness and credibility of the statements prior to
admitting them.
Conversely, the State argues, and we agree, that the trial
judge is not required to scrutinize the credibility and weight of
state of mind statements prior to admitting them. Rather, "the
jury is the sole judge of [the] credibility and weightw of
testimony. Rule 104(e) M.R.Evid.; Commission Comments, Montana
Code Annotated, Rule 104(e) M.R.Evid., ~ i t l e26, Vol. 5, p. 189
(1993). The j u r y decides the facts and who to believe.
We conclude that ~ a r i
had ample opportunity to argue to the
jury that, given the circumstances, Rick's statements were not
credible. We refuse to second-guess the jury's decision.
Moreover, w e have previously concluded that state of mind
statements are reliable. McCord, 825 P.2d at 200. In the present
case, Rick told the Naval officer that he wished to reenlist to
active duty because "he was afraid of his wife and thought she was
going to kill him.'* This statement was a spontaneous response
which explained his state of mind when he sought to reenlist to
active duty with the Navy.
Further, when Rick's boss inquired as to why he would not
leave Bari, Rick replied that she "would kill [me] if [I] ever
moved out.ft This was a spontaneous response to a contemporaneous
inquiry as to his state of mind.
Finally, on one occasion Rick moved out of the couple's
trailer home and lived at a local motel. While at the motel, he
phoned his counselor. He told the counselor that Bari "threatened
to kill him in the past." This statement was a spontaneous
response in a phone conversation in which Rick revealed his state
of mind to a counselor. We conclude that a jury could find these
statements reliable.
Next, Bari contends that the prejudicial effect of the
statements outweigh their probative value. We disagree.
We will not disturb the district court's evidentiary rulings
absent an abuse of discretion. Maqruder, 765 P.2d at 718. Here,
we conclude that the District Court properly weighed the competing
concerns and correctly determined that the probative value of the
statements outweighed their prejudicial effect. We hold the court
did not abuse its discretion and it properly weighed the evidence
in accordance with Rule 403, M.R.Evid.
Finally, Bari, for the first time, objects to the prosecutor's
closing argument. She argues that the prosecutor improperly
invited the jury to use Rick's statements to establish her state of
mind. In closing, with no objection from Bari, the prosecutor
said:
She may blame all that past year of history and take it
out on him the last one, you son-of-a-bitch, you [have]
been beating on me for a year, do you think you are going
to leave? Do you think you are going to go to the Navy?
You think you are? Oh no, buddy, not after what I have
been through. You are dying here tonight.
It is well established that a defendant's failure to
contemporaneously object to an error precludes our review of the
alleged error. State v. Rodgers (Mont. 1993), 849 P.2d 1028, 1031-
32, 50 St.Rep. 335, 337. The parties must first allow the trial
court the opportunity to correct the error. Rodsers, 849 P.2d at
We do not, by any means, condone the State's excerpted
argument in this case. The State inappropriately used the evidence
to suggest Barifs state of mind.
However, 5 46-20-104(2), MCA, states that fl[f]ailureto make
a timely objection during trial constitutes a waiver of the
objection except as provided in 46-20-701(2) . Section 46-20-
701(2), MCA, provides that:
[n]o claim alleging an error affecting jurisdictional or
constitutional rights may be noticed on appeal, if the
alleged error was not objected to as provided in 46-20-
104, unless the defendant establishes that the error was
prejudicial as to his guilt or punishment and that:
(a) the right asserted in the claim did not exist at
the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant or his
attorney that prevented the claim from being raised and
disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant or
his attorney and could not have been ascertained by the
exercise of reasonable diligence.
Here, Bari did not object to the closing argument and, thus,
she waived her objection. Further, we cannot allow Bari to raise
the objection for the first time on appeal because her objection
does not meet an exception under 5 46-20-701(2), MCA. We hold that
Bari's failure to object at trial precludes our review of the
alleged error.
Did the District Court abuse its discretion when it sentenced
Bari?
Bari argues that the District Court should have sentenced her
to probation because she did not have a prior criminal record, and
she posed no great risk to society at the time of sentencing. This
argument lacks merit.
Where the district court has considered the factors of 9 46-
18-101(3), MCA, and where the sentence is within the legal limits
imposed by t h e a p p l i c a b l e s t a t u t e s , t h i s Court w i l l n o t f i n d a n
abuse of d i s c r e t i o n . S t a t e v. Alrnanza (1987), 229 Mont. 383, 3 8 6 ,
746 P.2d 1089, 1091. M i t i g a t e d d e l i b e r a t e homicide c a r r i e s a
maximum s e n t e n c e of f o r t y y e a r s imprisonment and a $ 5 0 , 0 0 0 f i n e ( 5
45-5-103 (4), MCA) and t h e maximum s e n t e n c e f o r u s i n g a weapon i s
t e n y e a r s ( 5 46-18-221(1), MCA),
W e conclude that the c o u r t followed the statutory criteria and
sentenced Bari within t h e limits of t h e mitigated deliberate
homicide statute, twenty years with ten suspended, and the
enhancement s t a t u t e far u s i n g a weapon, s i x y e a r s . The c o u r t gave
ample j u s t i f i c a t i o n f o r t h e s e n t e n c e imposed. W hold t h a t t h e
e
D i s t r i c t Court d i d n o t abuse i t s d i s c r e t i o n i n s e n t e n c i n g B a r i .
I11
id t h e D i s t r i c t Court err when it allowed t h e State t o
r e i n s t a t e t h e c h a r g e of d e l i b e r a t e homicide a g a i n s t ~ a r i ?
Bari argues t h a t t h e S t a t e breached the plea agreement,
c a u s i n g her t o withdraw her p l e a . However, t h e f a c t s i n t h e r e c o r d
n e g a t e h e r argument.
The p a r t i e s agreed t h a t t h e S t a t e would recommend a t h i r t y -
y e a r s e n t e n c e w i t h t w e n t y - f i v e suspended i f B a r i p l e d g u i l t y t o
m i t i g a t e d d e l i b e r a t e homicide. They a l s o agreed t o a r g u e t h e
sentence f o r Bari's u s e of a weapon a t t h e s e n t e n c i n g h e a r i n g .
B a r i knew t h a t t h e S t a t e i n t e n d e d t o a r g u e f o r t h e maximum t e n - y e a r
sentence.
After Bari pled guilty, the State informed her that it
expected t o i n t r o d u c e recently d i s c o v e r e d e v i d e n c e t o prove Bari's
motive in killing Rick was to gain $106,000 in life insurance. The
that it would only use the evidence to support
State informed ~ a r i
its argument for the maximum ten-year sentence for use of a weapon.
Bari withdrew her plea.
The State did not breach the plea agreement. Rather, Bari
chose to withdraw her plea. The State did not withdraw its offer
to recommend thirty years with twenty-five suspended. Instead, as
agreed, the State only intended to use the evidence to support its
argument for the maximum ten-year use of a weapon sentence.
Moreover, the State was under a duty to present the court with the
concealed facts about Bari's insurance motive. See State v. Brown
(1981), 193 Mont. 15, 18, 629 P.2d 777, 778-79. We hold that the
State did not violate the plea agreement.
Next, Bari contends that double jeopardy should have barred
the State from reinstating the charge of deliberate homicide
against her. She argues that double jeopardy attached when the
court accepted her initial guilty plea to mitigated deliberate
homicide, which she later withdrew. Thus, she maintains that the
court should have been precluded from allowing the reinstatement of
the deliberate homicide charge. This argument lacks merit.
This issue is moot. See Taylor v. Kincheloe (9th Cir. 1990),
920 F.2d 599, 602. Bari was only convicted of mitigated deliberate
homicide and, the jury, by implication, acquitted her of deliberate
homicide. Even if Bari could challenge the deliberate homicide
charge on double jeopardy grounds, we would not be compelled to
overturn her conviction of mitigated deliberate homicide. See
Tavlor, 920 F.2d at 602.
Moreover, Bari withdrew her plea, knowing that she was
subjecting herself to the possibility that the State would
reinstate the deliberate homicide charge. As the United States
Supreme Court stated, "the Double Jeopardy Clause . . . does not
relieve a defendant from the consequences of [her] . . . voluntary
choice.I1 U.S. v. Scott (l978), 437 U.S. 82, 99, 98 S.Ct. 2187,
2198, 57 L.Ed.2d 65, 79. Specifically, here, Bari cannot "reject
[the] plea bargain and then erect the shield of double jeopardy,"
Fransaw v. Lynaugh (5th Cir. 1987), 810 F.2d 518, 526, cert.
denied, 483 U.S. 1008, 107 S.Ct. 3237, to protect herself from the
charge of deliberate homicide. See U.S. v. Gerard (9th Cir. 1974),
491 F.2d 1300, 1306. We hold that the District Court did not
violate double jeopardy when it allowed the State to recharge Bari
with deliberate homicide.
Aff inned.
Justice Terry N. Trieweiler dissenting.
I dissent from the majority s conclusion that out-of-court
statements made by Rick Losson to the effect that his wife had
"threatened to kill him,I1 or that he was afraid "she would kill
him," were not inadmissible hearsay statements.
It is clear from a review of the evidence in this case that
the statements were offered for one purpose only. That purpose was
to prove that defendant had planned to kill Rick Losson prior to
the date on which his death occurred. To contend, as does the
majority, that the jury could infer from the statements that it was
unlikely that Rick would attack defendant, flies in the face of the
fact that he had a criminal record for abusing and beating her, and
a history of having done so for the entire one and a half years of
their relationship.
Rule 801(c), M.R.Evid., reads:
Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.
By that definition, every one of Rick's out-of-court
statements were inadmissible hearsay. They were all made by the
victim, who was not there to testify, nor be cross-examined. They
were all offered to prove that defendant had either threatened to
kill Rick, or that he honestly believed she intended to kill him.
They were offered to disprove her denial that his death was
premeditated.
All the arguments about the decedent's state of mind are
merely window dressing to excuse the admission of statements by
someone who was not under oath and not subject to confrontation by
defendant so that the veracity of the statements could be tested.
Under the facts in this case, the decedent's state of mind was not
an issue, and the out-of-court statements should not have been
admitted.
To admit them under the pretext that they established the
decedent's state of mind, and then instruct the jury not to
consider whether what he said was true, is a use of smoke and
mirrors to avoid the Rules of Evidence. The effect of this
decision is that the state of mind exception effectively swallows
the hearsay rule. The District Court's instruction did not cure
the prejudice to defendant.
Therefore, I would reverse the judgment of the District Court
and remand this case for retrial after excluding the inadmissible
hearsay evidence.