State v. Barrack

No. 93-086
IN THE~SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
DONALD BARRACK, (-J-J 1 a 19%
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed P. McLean, Judge presiding.

COUNSEL OF RECORD.:

For Appellant:

J. Dirk Beccari and Marcia M. Jacobson, Public
Defender Office, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Carol
Schmidt, Assistant Attorney General: Robert L.
Deschamps, III, Missoula County Attorney, Fred Van
Valkenburg, Deputy Missoula County Attorney

Submitted on Briefs: July 6, 1994

De‘cided: October 13, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court,
Missoula County, jury verdict finding Donald Barrack, guilty of
aggravated assault, and from the accompanying judgment filed on
August 21, 1992. We affirm.
The following are issues on appeal:
I. Did the District Court err in treating Barrack's motion for
a new trial as a petition for post-conviction relief under a writ
of coram nobis?
II. Did the District Court err when it denied Barrack's motion
for a new trial based upon insufficient evidence to support the
jury verdict?
III. Did the District Court err when it denied Barrack's
motion for a new trial based upon his "excusable mistake" in
failing to subpoena hospital records containing the victim's blood
alcohol content?
FACTUAL BACKGROUND
The defendant/appellant, Donald Barrack (Barrack), was living
in a trailer at 4625 Graham, Westview Trailer Court in Missoula,
Montana, with Robert Cole (Cole), whom Barrack worked with at the
Mahlum Ace Hardware Store in Missoula. Robert Cole owned the
trailer with his wife, Joan Cole (Joan), from whom he had separated
in August of 1991. Joan and Cole decided to sell the trailer
during January and February of 1992, and they were able to find a
buyer. The buyer wanted to move into the trailer within a week of
closing.
2
 This was a problem because Barrack was still living in the
trailer. Cole also still lived there 'lon and off" but he spent a
great deal of time at the home of Sue Llewellyn (Sue), who was his
fiancee. At the time of the sale of the trailer, he was in the
process of moving into her home.
Joan and Cole met with Barrack on February 13, 1992, to inform
him that the trailer had been sold and he would have to vacate the
trailer in a very short time. Cole and Barrack "finally worked it
out," ending their negotiations with a signed note stating that
Barrack would vacate the trailer around February 20. They then
went to two taverns in town, spent about two hours together and
drank a few beers. Barrack left the second tavern, Mulligan's, but
Cole stayed with another friend and continued drinking.
At some point later in the evening, Cole and his friend,
Marty, went to a tavern in Marty's neighborhood. A fight started
at the neighborhood tavern, the police were called to end the
altercation, and they took Cole and,Marty to Marty's house because
the two men were not able to drive. When Cole arrived at Marty's
house, he called Sue to come and get him. Sue arrived at Marty's
house, retrieved Cole and as they were driving to Sue's house, they
started to discuss whether Barrack had left the trailer. Sue
wanted to make sure that Barrack was either packing or had moved
out so she drove to the trailer.
Testimony after that point in time is contradictory. Cole
testified that when they arrived at the trailer, they went to the
front door, knocked loudly, heard no answer, went to the back door,

3
knocked, heard no answer, and tried the front door one more time.
The two went to the car, discussed the issue for a while, Cole
tired of the discussion, and he walked away. Cole also testified

that while the two were going from door to door, they were yelling,

screaming and making loud noises. He further testified that the

porch light and a yard light were on, as well as a light under the

hood of the stove in the kitchen.

Cole stated that when he walked away, Sue got back in the car,

pulled out of the driveway, stopped and pulled back into the
driveway. He decided to return to the ca'r, walked back to where it

was parked and as he came around the car, he saw Barrack standing

near the car, holding a gun and Sue laying by the car.
Sue testified that she was taking care of Cole and Joan's

child on the evening of February 13, 1992, because Cole was out
celebrating his friend, Marty's birthday. She stated that he

called her from Marty's house later in the evening for a ride and

they discussed the situation with Barrack and the trailer as she

was driving. She testified that they drove to the trailer, both

walked to the front door, knocked hard, received no answer, went to

the back door to knock, and then returned to the front door. She

testified that she was yelling at Cole at the time and there were

outside lights on but none inside as far as she could see. After

they received no response, the two walked back to the car,

continued to fight and then Cole started to walk away.

Sue got in the car in an attempt to follow him, changed her

mind, turned the car off, and went back to the front door. The

4
door was locked so she kicked the door as hard as she could. on
the third try, she kicked the door open, took a step inside the
door, then she saw a flash, and felt a bullet enter her chest.
Mike Davenport, a trailer park neighbor, testified that at
about lo:15 or lo:20 on the evening in question, he heard a loud
banging and noise. He went to his door and looked outside in the
direction of the pounding. He saw a woman hollering, screaming and
pounding on the door. He said he could not see any lights on at
the house nor was there a light on the porch. He stated that he
could just see one person, a woman, pounding on the door and
yelling. She could not get inside so she returned to the car, and
tried to get the person in the car to help her get into the
trailer. She had a fight with the person in the car until the
other person left and started walking down the street. Davenport
then saw the woman get into the driver's side of the car, start the
engine, start to leave, pause and return to the trailer. At that
point, he went to get dressed, and while he was returning to where
he had been watching the events of the night, he heard a loud,
high-pitched crack. He testified that when he got to the door, he
looked out and saw the woman walking, leaning over a bit, to the
rear of her car. She was looking up the street toward where the
person who left the car had walked and ultimately, she collapsed.
At that point, Mike Davenport called 911 and reported the incident.
Barrack testified that he discussed the move from the trailer
on February 13, 1992, with Cole and Joan. After Joan left, Cole
and Barrack came to an agreement that Barrack would move to another

5
place within a week. At a later point in time, the two men went to
a tavern called Joker's Wild for a few beers. The two then met
with Cole's friend, Marty, to celebrate Marty's birthday and the
three drank beer at a tavern called Mulligan's. Barrack left that
tavern after drinking.1 l/2 beers, ordered some takeout food ,from
a restaurant, went home, ate, watched television and went to sleep.
He stated that he went to bed around 8:30 to 9:O0.
Barrack further testified that he had been asleep for some
time when he thought he heard knocking at the back door, "more of
a feeling of something striking the trailer than I had heard, but
I thought I heard a knock," and he went to the back door. He
further reported that he did not put on his glasses because he was
not sure that he had heard or felt something, he thought perhaps it
was a gust of wind rocking the trailer. He did not hear anything
at the back door so he returned toward the bedroom and as he was
proceeding, he heard a loud crash which physically rocked the
trailer.
He stated that he grabbed his pistol because of the violence
of the repeated crashing that followed. He went to the front of
the trailer, still listening to the banging, which was "exceedingly
violent and rapid." He asked, "Who is it?" and received no
response. He repeated his question, then stated, "[d]on't kick the
door in, I'm armed." Barrack heard kicking at the door, the door
flew open, he backed up, saw a large human form, unidentifiable,
rush through the door and then he recalls the "muzzle flash when
the gun went off."
 PROCEDURAL BACKGROUND
On February 21, 1992, a deputy county attorney of Missoula
County filed an affidavit and motion for leave to file an
information on Donald Barrack, charging him with committing the
offense of aggravated assault, a felony, pursuant to F, 45-5-202(l),
MCA. The motion was granted on that same day and on March 4, 1992,
Barrack was arraigned and pled "not guilty." Trial in the matter
commenced on June 29, 1992, and a jury found Barrack guilty of the
offense of aggravated assault on June 30, 1992.
On August 5, 1992, Barrack's motion for a new trial was heard
and sentence was pronounced against him. He was sentenced to
Montana State Prison for 10 years, with all but two years
suspended. The final judgment of the court was filed on August 21,
1992, confirming Barrack's sentence of 10 years in prison with all
but two years suspended. Later that same day, the District Court
filed an order amending the judgment, suspending the entire prison
term under certain conditions.
Barrack filed a written motion for a new trial on August 26,
1992. A hearing on the motion for a new trial was held on December

1’5, and on December 17, 1992, an opinion and order was filed,
stating that at an October 14, 1992, post trial hearing, "the Court
informed the parties that it [would] treat the Defendant's Motion
for New Trial as a Petition for Post Conviction Relief under a Writ
of Coram Nobis pursuant to § 46-21-101(l), MCA." The District
Court denied the motion for a new trial (petition for post-
conviction relief) on the issues of the sufficiency of the evidence

7
and the alleged failure of the State to provide medical reports on
the victim's blood alcohol content at the time of the incident.
Barrack appealed to this Court on January 5, 1993.
STANDARD OF REVIEW
The standard of review for denial of post-conviction relief is
whether substantial evidence will support the findings and
conclusions of the district court. Walker v. State (1993), 261
~Mont. 1, 6, 862 P.2d 1, 4.
I . POST-CONVICTION RELIEF
Barrack makes two arguments regarding his motion for a new
trial - 1) there was insufficient evidence to support the jury's
verdict and 2) the State's alleged failure to provide Barrack with
the test results of the victim's blood alcohol content on the night
of the incident. However, before deciding those issues, we take
this opportunity to clarify the District Court's treatment of
Barrack's motion for a new trial as a petition for post-conviction
relief. In its opinion and order, dated December 17, 1992, the
District Court stated that it would treat the motion for a new
trial as a petition for post-conviction relief under a writ of
coram nobis, pursuant to § 46-21-101(l), MCA.
However, a writ of coram nobis is no longer available as a
remedy for post-conviction relief. Section 46-21-101(l), MCA,
provides as follows:
when validity of sentence may be challenged. (1) A
person adjudged guilty of an offense in a court of record
who has no adequate remedy of appeal and who claims that
a sentence was imposed in violation of the constitution
or the laws of this state or the constitution of the
United States, that the court was without jurisdiction to

/ 8
 impose the sentence, that a suspended or deferred
sentence was improperly revoked, or that the sentence was
in excess of the maximum authorized by law or is
otherwise subject to collateral attack upon any ground of
alleged error available under a writ of habeas corpus,
writ of coram nobis, or other common law or statutory
remedy may petition the court that imposed the sentence
or the supreme court to vacate, set aside, or correct the
sentence or revocation order.
"The post-conviction hearing statutes are an attempt by the
legislature to consolidate all of the common-law statutory remedies
normally available to challenge a sentence." In re McNair (1980),
189 Mont. 321, 323, 615 P.2d 916, 917. While the Constitution of
Montana (Art. II, Sec. 19) and Title 46, Chapter 22, Parts 1
through 3 of the Montana Code Annotated, provide for separate
habeas corpus proceedings, Montana law does not provide for a
separate writ of coram nobis.
The State argues that Barrack's motion for a new trial was
untimely, should have been denied, and that it was improper to
treat the motion as a petition for post-conviction relief. Barrack
was found guilty of aggravated assault on June 30, 1992. According
to 5 46-16-702(2), MCA, a motion for a new trial must be in writing
and filed by the defendant within 30 days following a finding of
guilty. The State points out Barrack's written motion for a new
trial was not filed until August 26, 1992. Therefore, Barrack's
motion for a new trial was untimely because it was not filed within
30 days of the verdict and for this reason, the State contends,
Barrack's motion should have been summarily denied.
Barrack's motion for a new trial was indeed, untimely.
However, under Rule 5, M.R. App. P., he could have filed an appeal

9
within 60 days of the judgment., The judgment in the instant case
was filed on August 21, 1992; the last day for Barrack to appeal
his case would have been October 21, 1992. nowever, at a post-
trial hearing on October 14, the District Court informed Barrack
that it would treat his motion for a new trial as a petition for
post-conviction relief. At this point in time, Barrack still could
have appealed his case. However, the District Court's decision to
treat the motion as a petition for post-conviction relief may have
effectively curtailed any attempt Barrack may have made to appeal
within the remaining statutory time limit.
Even though Barrack was possibly lulled into inaction as far
as appealing during the statutory time limit, he must still be
allowed an opportunity to seek review of his case before this
Court. In Fitzpatrick v. State (1983), 206 Mont. 205, 210-211, 671
P.2d 1, 4, in discussing § 46-21-101, MCA, the post-conviction
relief statute, we stated that:
The first element of the test which a petitioner
must satisfy is that petitioner be "adjudged guilty of an
offense in a court of record who has no adequate remedy
of appeal..." This phrase does not mean that a
petitioner may avail him or herself of the appellate
review process, and, when the results are unfavorable,
utilize the post-conviction review procedure to, in
effect, file numerous and successive '1appeals.1' The
language of the statute for part one of the test clearly
intends this form of relief to be available to convicted
persons who have not had their sentences reviewed by the
appellate court. It is clearly an abuse of the relief
procedure to withhold issues which could and should have
properly been raised on appeal...."
In the instant case, Barrack did not have an opportunity to
avail himself of the appellate review process because of the
District Court's treatment of his untimely motion for new trial as
10
a petition for post-conviction relief. He effectively did not have
an opportunity to properly raise issues on appeal. Moreover,

[a]buse of process occurs where an applicant raises
in post-conviction proceedings a factual or legal
contention which the petitioner deliberately or
inexcusably failed to raise in the proceedings leading to
conviction, or having raised the contention in the court,
failed to pursue the matter on appeal.

McKenzie v. Osborne (1981), 195 Mont. 26, 34, 640 P.2d 368, 373.

Barrack did not deliberately or inexcusably fail to pursue the

matter on appeal because he was unintentionally misled by the

District Court, thereby failing to appeal within the proper time
period. The abuse of the post-conviction relief process is not a
concern in this case because there is no evidence that Barrack

intentionallv failed to appeal or failed to exercise due diligence

in seeking review of the legal issues raised.

The District Court erred in treating Barrack's untimely motion

for a new trial as a petition for post-conviction relief under §

46-21-101(l), MCA, and as a writ of coram nobis. Nevertheless,

because the District Court possibly lulled the defendant into a

position where he did not timely pursue his appeal rights, we will

affirm the District Court's decision to rule on the merits of

Barrack's untimely motion for new trial.

In doing so we wish to emphasize, however, that our decision

here is not in any way to be read as enlarging the scope of post-

conviction relief or as diminishing a defendant's obligation to

timely file a motion for a new trial and a petition for post-

conviction relief or appeal in accordance with the applicable

statutes. The circumstances of this case are unique.

11
 II. INSUFFICIENCY OF THE EVIDENCE

"The standard of review of the sufficiency of the evidence is

whether, after reviewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." State

v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

Barrack argues that there was insufficient evidence to support

the jury's verdict of guilty of aggravated assault. He contends

that:

Ms. Llewellyn's appearance and demeanor on the
witness stand were very sympathetic. No hint emerged of
her intoxicated and irrational rage on the night in
question. The defense believes that Mr. Barrack was
convicted because the jury's emotions were inflamed by
the idea of a former law enforcement officer shooting a
woman they perceived as someone he should have recognized
under any circumstance.

Finally, Barrack claims that he was the victim, not the aggressor,

and that he was acting in self-defense. At trial, he pled the

affirmative defense of justifiable use of force. Although Barrack

argues there was insufficient evidence to support his conviction,

[t]he fact that the defendant's testimony conflicted
with that of the State's witnesses does not, by itself,
render the evidence insufficient to support his
conviction. The w e i g h t o f the evidence and the
credibility of the witnesses are exclusively within the
province of the trier of fact; when the evidence
conflicts, the trier of fact determines which shall
prevail.

Bower
-I 833 P.2d at 1111. Moreover, in determining whether the use

of force was justified, "[t]he mere fact that defendant testified

to a self-defense claim does not entitle him to an acquittal;" the

trier of fact must weigh the testimony and decide whether Barrack

12
acted with the belief that the use of force was necessary and his
belief was reasonable. Bower, 833 P.2d at 1111. In eseence, the

jury must determine whether the defendant was justified in his use

of force when Sue entered the trailer on the evening in question.

In the instant case, the jury weighed the evidence, assessed
the credibility of the witnesses and determined that the State's

witnesses were more credible. They determined that Barrack was not

justified in his use of force against Sue Llewellyn and that he was

guilty of aggravated assault. As stated above, the fact that the

defendant's testimony conflicts with the State's witnesses does not
render the evidence insufficient to support a conviction. Here,

the jury's verdict is sufficiently supported by the evidence.

There was testimony that there was adequate lighting for a

person inside the trailer to see anyone outside knocking on the

doors. Both Sue and Cole testified that Barrack knew Sue well

enough to recognize her if he saw her. Moreover, there was

testimony that there was enough noise, with the knocking and other

sounds being made, that a person inside the house would have heard

that there were people outside the trailer. Sue testified that

Barrack did not ask 'I [w ] ho are you?" nor did she hear anyone say
"I'm armed, [d]onYt come in here," or warn her at all when she was

entering the trailer. She testified that she did not feel that

there was anyone in the trailer at the time she entered.

"The [trier of fact] is not bound to blindly accept

defendant's version of the facts. It is free to pick and choose

the evidence it wishes to believe." Bower, 833 P.2d at 1111,

13
citing State v. Sorenson (1980), 190 Mont. 155, 170, 619 P.2d 1185,
1194. Here, the jury chose to believe the State and, as stated
above, there is sufficient evidence to support the jury's verdict.
The District Court did not err in denying Barrack post-conviction
relief based on his claim that there was insufficient evidence to
support the jury's verdict.
III. BLOOD ALCOHOL REPORT
Barrack argues that defense counsel was relying on a long-
standing course of conduct with the State when it failed to
subpoena records of Sue's blood alcohol content for use during the
trial. He asserts that his error in failing to discover her blood
test is excusable because in the past, the State routinely provided
law enforcement reports, including blood test results, upon request
by the defense attorneys. Barrack's attorney had requested results
from the State and the Sheriff's Office but did not receive them so
he was led to believe that there were no test results. The
attorney did not realize there were blood test results until he
subpoenaed them on August 4, 1992, in preparation for sentencing.
The State contends that Barrack wanted the State to conduct
his own discovery for him. It also states that it did not subpoena
the blood alcohol records at any time nor did it use any
information regarding the blood alcohol content of the victim at
trial.
A hearing was held on the issue of the blood alcohol results
on December 16, 1992, in which defense counsel testified that he
had asked Lt. Brannin and Mr. Van Valkenburg, a deputy county

14
 .

attorney, for blood alcohol reports. Counsel stated that Lt.
Brannin told him he did not think that there was a blood alcohol
test because she was a Jehovah's Witness. Further, counsel stated
that although available from St. Patrick's Hospital, he did not
receive a copy of the blood alcohol results until he subpoenaed
them for sentencing purposes. He argued at the hearing that if he
had known that he was not going to get them through the sheriff's
office, he would have gotten them on his own, but he was led to
believe that none existed because he had never had a "problem in
getting anything from the sheriff's department or county attorney's
office in the past, and I think it was just a mistake that they
missed it...."
When Brannin testified, he stated that he remembered that the
fact that Sue was a Jehovah's Witness was a factor in the case, but
that he did not remember any specific request for blood alcohol
results. Brannin also testified that he never received a blood
alcohol test for Sue, although Brannin did know she had been
drinking that evening because she did acknowledge the fact during
a police interview. Moreover, Brannin had prepared a memorandum to
the deputy county attorney stating that "there was certainly no
specific request for this information," referring to the blood
alcohol results.
The Deputy County Attorney stated at the hearing that when the
defense attorney interviewed Sue, she did tell counsel that she had
had "either two or three glasses of wine mixed with ~-UP, or
something of that nature, prior to the incident that night."

15
Moreover, the county attorney asserted, she also told Brannin that
she had been drinking when she made her statement to the police
officer and that statement was made available to the defense but
defense counsel never cross-examined Sue on that issue at trial.
The District Court, in its order of December 17, 1992, stated
the following:
Hearing on Defendant's petition was had on December
16, 1992 with defense counsel testifying that he asked
State's counsel for blood alcohol results on the victim
and was referred to the sheriff's office. Defense
counsel further testified that the investigative officer
in the Sheriff's office said he did not think there was
one because the victim was a Jehovah's witness. The
officer testified at hearing that he does not recall the
conversation and that his files do not contain blood
alcohol results for the victim. Defense counsel
subpoenaed the hospital records following trial for
sentencing purposes and those records contained blood
alcohol results of the victim.
The Court would grant Defendant a new trial if the
State had exculpatory evidence in its possession which
was not available to Defendant and did not turn over the
evidence to defense counsel. However, it does not appear
the State had the blood alcohol results on the victim in
its possession. The hospital records were equally
available to both parties by subpoena and therefore the
evidence is not newly discovered evidence which was
unavailable for trial and a new trial is not warranted in
this case.
We agree with the District Court that it does not appear that
the State had blood alcohol results on Sue in its possession.
Moreover, the hospital records were available to both parties by
subpoena. Defense counsel had information that she had been
drinking and if counsel thought that jury knowledge of her drinking
may have changed the outcome of the trial, it was counsel's
responsibility to request the information from the sheriff's office
or county attorney's office in a formal manner if informal requests

16
were of no avail. A written request for the necessary information
addressed to the county attorney's office or a request to the
District Court for an order requesting that the information be made
available to the defendant could have been employed to obtain the
blood alcohol results, pursuant to 5 46-15-322, MCA.
The problem of the prosecution failing to reveal evidence
necessary for a defendant's case is not present here. Lt. Brannin
stated that they did not have any reports on Sue's blood alcohol
level on the night of the incident and never requested such
reports. "Police officers may not frustrate or hamper a
defendant's right to obtain exculpatory evidence but they have no
affirmative duty to gather such evidence absent express statutory
mandate." State, City of Bozeman v. Heth (1988), 230 Mont. 268,
272, 750 P.2d 103, 105. We recently clarified the State's
obligation of disclosure under § 46-15-322, MCA, in State v. Licht

(1994) I _ Mont. _I _I __ P.2d _, _r 51 St. Rep. 686.
While, as we pointed out in that case, subsections (L)(a) through
(d) and subsections (2)(a) through (c) of that statute require the
prosecution to disclose all material and information described,
whether inculpatory or exculpatory, and while subsection (l)(e)
requires disclosure of all exculpatory or mitigating material or
information, there is no obligation under the statute for the State
to disclose material or information which it does not have in its
possession. Here, neither the prosecution nor the police had the
blood alcohol results and they had no affirmative duty to obtain
them. Therefore, the District Court did not err when it denied the

17
motion for a new trial (petition for post-conviction relief) based
on Barrack's argument that his failure to discover Sue's blood test

results was an excusable mistake.

AF FIRMED . /

We Concur:

18

,
Justice John Conway Harrison, dissenting.

I respectfully dissent. Section 45-3-103, MCA, provides:
Use of force in defense of occupied structure. A person
is justified in the use of force or threat to use force
against another when and to the extent that he reasonably
believes that such conduct is necessary to prevent or
terminate such other's unlawful entry into or attack upon
an occupied structure. However, he is justified in the
use of force likely to cause death or serious bodily harm
only if:
(1) the entry is made or attempted in violent,
riotous, or tumultuous manner and he reasonably believes
that such force is necessary to prevent an assault upon
or offer of personal violence to him or another then in
the occupied structure; or.
(2) he reasonably believes that such force is
necessary to prevent the commission of a forcible felony
in the occupied structure.
If § 45-3-103, MCA, had been followed by the jury in this case, a
not guilty verdict would have resulted. Clearly, the evidence
showed that Sue Llewellyn was the aggressor. She broke into an
occupied dwelling in the middle of the night by creating a scene
and then kicking down the door. Such actions are a clear invasion
of defendant's home and he was justified in his use of force in
defense of his home. I would reverse and remand for a new trial.

19

-,
Justice Terry N. Trieweiler specially concurring in part and

dissenting in part.

I concur with the majority's resolution of Issues I and II.

I dissent from that part of the majority opinion which concludes

that there was sufficient evidence to convict defendant of

aggravated assault.

Based on the undisputed evidence, I conclude that justifiable

use of force by defendant was established as a matter of law and

that judging the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found defendant

guilty of aggravated assault beyond a reasonable doubt.

Donald Barrack testified that on February 13, 1992, he was

awakened in the middle of the night by a blow to his trailer that

was so violent it physically rocked the trailer. He went to the

back door, but heard nothing further in that vicinity. The next

thing he knew, there was a loud crash in the vicinity of the front

door of his home, which again physically rocked the trailer as if

it had been hit by a motor vehicle. He picked up his pistol and

went to the area of his front door where the crashing sound

continued. The impact to his home was exceedingly violent and

rapid and continued to occur with such force that it rocked his

whole trailer. He asked the person outside to identify herself,

but received no response. With all the noise described by both

Barrack and his neighbor, it is not surprising that the violent and

aggressive intruder did not hear his question.

20
 He then advised the person outside, "Don't kick the door in,

I'm armed." He still received no response, and after several more

kicks, the door flew open. He backed away from the door, not

knowing who was entering his home. The next thing he observed was

a large human form rushing through the door, despite his repeated

warnings. He was understandably scared and upset and feared for

his safety. He fired his pistol in the direction of the door,

striking the intruder.

Defendant testified that at no time prior to firing his pistol

in the direction of the intruder did he recognize her as Sue

Llewellyn.
Defendant's testimony clearly established the affirmative

defense of justifiable use of force in defense of an occupied
structure, which is set forth at § 45-3-103, MCA. That statute

provides that:

A person is justified in the use of force or threat to
use force against another when and to the extent that he
reasonably believes that such conduct is necessary to
prevent or terminate such other's unlawful entry into or
attack upon an occupied structure. However, he is
justified in the use of force likely to cause death or
serious bodily harm only if:
(1) the entry is made or attempted in violent,
riotous, or tumultuous manner and he reasonably believes
that such force is necessary to prevent an assault upon
or offer of personal violence to him or another then in
the occupied structure; or
(2) he reasonably believes that such force is
necessary to prevent the commission of a forcible felony
in the occupied structure.

The majority opinion correctly points out that if defendant's

testimony was contradicted in some material respect, it was up to

the jury to resolve the factual issue created by that

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contradiction. However, defendant's testimony was not contradicted
in any material respect. There were only two witnesses to the

incident which formed the basis of the charges against defendant.

The other witness was Sue Llewellyn, the person who forcibly and

violently broke into his home. The only relevant part of her

testimony related to her activity after her boyfriend left the

scene on foot.

She stated that she got back out of her car and returned to

defendant's home with the express purpose of breaking in. She

tried the knob, but it was locked. She kicked the door with as
much force as she could until it flew open. After the door opened,

she was not screaming, yelling, or saying anything else that would

enable defendant to identify her. Furthermore, she testified that

because of the darkness inside the trailer, she could not see

inside.
With her identity concealed by that same darkness, she entered

the trailer without identifying herself. Only at that point was

she shot.

Llewellyn acknowledged that she had no right to kick in the

door to defendant's home. She had been warned before going to the

trailer that he was still living there, but was angry about his

continued presence and intended to do something about it.
Based upon the testimony given by the only two witnesses who

have full knowledge of what happened that evening, Llewellyn's

entry was made in a violent, riotous, and tumultuous manner, and

defendant had every right to believe that force likely to cause

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seriously bodily harm was necessary in order to prevent an assault

on himself.

It is truly shocking that a person abruptly awakened in the

middle of the night by an unknown intruder who violently and

forcibly breaks into to his or her home, can be convicted of a

felony punishable by 20 years in the State Prison and a fine of

$50,000 for taking reasonable measures to protect himself.

While the prosecutor, the jury, and the majority may, with the

benefit of hindsight, conclude that defendant was not in danger of

serious bodily harm from Llewellyn's violent assault on his home,
defendant did not have the benefit of hindsight, anymore than he

had the benefit of knowing the intruder's identity or intentions

before making his split-second decision to defend himself.

He had no way of knowing whether the intruder was armed or

unarmed. However, based upon the intruder's disregard for his
warning, and based upon the manner of her entry, he had every right

to presume that her intentions were hostile and a threat to his

well-being.

For these reasons, I dissent from that part of the majority
opinion which concludes that there was sufficient evidence to

convict defendant of aggravated assault. I would reverse the

judgment of the District Court and remand for entry of judgment

dismissing all charges against defendant, Donald Barrack.

Ju ice
t

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Justice William E. Hunt, Sr., joins in the foregoing concurring and
dissenting opinion.

Justice

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