NO. 93-243
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JAKE STONE,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dan Yardley, Yardley & Yardley,
Livingston, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Jennifer Anders, Assistant Attorney
General, Helena, Montana
William Nels Swandal, Park County Attorney,
Livingston, Montana
Submitted on Briefs: July 6, 1994
Decided: August 30, 1994
Justice T e r r y N. Trieweiler delivered the opinion of the Court.
The defendant, Jake Stone, was charged by information filed in
the District Court of the Sixth Judicial District in Park County
with two counts of aggravated assault pursuant to § 45-5-202(l),
MCA (1991). Following a jury trial, he was found guilty of one
count of aggravated assault and one count of felony assault
pursuant to § 45-5-202(l) and (2)(a), MCA. The District Court
denied Stone's motion for a new trial. Stone appeals that order of
the District Court. We affirm the District Court.
The only issue presented on appeal is whether the District
Court properly instructed the jury regarding the defense of
justifiable use of force.
FACTUAL BACKGROUND
On October 28, 1992, Jake Stone and his wife, Deborah Wilson,
stopped at the Wapiti Bar in Gardiner. Sometime after their
arrival, the owner of the bar asked them to leave due to their
disruptive behavior. At approximately the same time, Ron Dodson
and Terry Peters left the bar. Dodson and Stone had, just prior to
leaving the bar, exchanged verbal insults, and while exiting toward
their vehicles, became involved in a physical altercation.
There were several witnesses at the scene. Testimony at trial
indicated that Dodson's friend, Terry Peters, attempted to break up
the fight. As the altercation began to subside, Stone grabbed a
pipe two inches in diameter and two feet long from his truck and
more struggling ensued. A bystander, Dean Birgsing, joined in the
attempt to wrestle the pipe from Stone. Another bystander, Les
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Kellem, pulled the pipe away, declaring that if there was to be a
fight, they "didn't need no damn pipe." As Dodson, Peters, and
Stone began to disperse for the second time, Stone retrieved
another pipe from his truck and struck Peters in the leg and head
"as if he was swinging a bat."
Meanwhile, Dodson retrieved a tire iron from his vehicle and
threw it in the direction of Deborah Wilson, but did not hit her.
Dodson then began to enter his vehicle and Stone attacked him with
the pipe. A witness testified that Dodson attempted to protect
himself by covering his face with his hands as Stone struck him in
the head. Dodson scrambled under the vehicle. Stone left the
scene with his wife before the sheriff and ambulance arrived. He
received no serious injuries. Both Peters and Dodson were
seriously injured as a result of Stone's attacks.
At trial, Stone asserted justifiable use of force as an
affirmative defense. He claimed that his actions were necessary to
prevent being seriously harmed himself. He claimed that Dodson and
Peters had ganged up on him and that he feared for his life. The
jury found Stone guilty of the felony assault of Dodson, and guilty
of the aggravated assault of Peters.
Stone moved for a new trial based on his assertion that the
jury instructions on justifiable use of force contained an
"absolute statement" which implied that a person who is himself the
aggressor cannot claim justifiable use of force. He further
alleged that this misstatement of the law confused the jury, as
indicated by their questions to the judge.
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Montana allows a person to use force to defend himself or
herself in a degree commensurate with the threat of harm the person
faces. See § 45-3-102, MCA. However, 5 45-3-105(2), MCA, provides
that the defense is not available to a person who has purposely or
knowingly provoked the use of force against himself, i.e., an
aggressor. The exception to this rule appears in subparagraphs
(2)(a) and (b) of that same statute. Thus, an aggressor may not
claim the defense justifiable force, unless
(a) such force is so great that he reasonably
believes that he is in imminent danger of death or
serious bodily harm and that he has exhausted every
reasonable means to escane such danqer other than the use
of force which is likely to cause death or serious bodily
harm to the assailant; or
(b) in good faith, he withdraws from nhvsical
contact with the assailant and indicates clearlv to the
assailant that he desires to withdraw and terminate the
use of force but the assailant continues or resumes the
use of force.
Section 45-3-105(2)(a) and (b), MCA (emphasis added).
The law in Montana with regard to jury instructions on
justifiable use of force is well-settled. The statutes upon which
the Montana Criminal Jury Instructions (MCJI) are based have not
changed since their enactment as part of the Revised Criminal Code
of 1973. The only deviation between the MCJI and the statutes
occurs with the additional language suggested by Justice Sheehy in
St& V. Graves (1981), 191 Mont. 81, 96, 622 P.2d 203, 211-12
(Sheehy, J., concurring), to supplement the "bare" language of
5 45-3-102, MCA. The instructions given to the jury regarding
justifiable use of force were as follows:
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INSTRUCTION NO. 19
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
defend himself or another against such other's imminent
use of unlawful force. However, he is justified in the
use of force likely to cause death or serious bodily harm
only if he reasonably believes that such force is
necessary to prevent imminent death or serious bodily
harm to himself or another.
INSTRUCTION NO. 20
The defendant has pleaded justification in the use
of force in this case. As such he has the burden of
producing sufficient evidence of justification in the use
of force to raise a reasonable doubt of his guilt. You
are to consider the following requirements of the law in
determining whether the use of force claimed by defendant
was justified:
1) Defendant must not be the aggressor;
2) The danger of harm to the defendant must be a
present one, not merely threatened at a future time, or
without the present ability of carrying out a threat:
3) The force threatened against the defendant must
be unlawful;
4) The defendant must actually believe that the
danger exists, that is, use of force by him is necessary
to avert the danger and that the kind and amount of force
which defendant uses is necessary.
5) Defendant's belief, in each of the aspects
described, is reasonable even if it is mistaken.
You are further advised that even if you determine
the use of force by defendant was not justified, the
state still has the duty to prove each of the elements of
the crime charged beyond a reasonable doubt.
INSTRUCTION NO. 21
You are instructed that the use of force in defense
of a person is not available to a person who purposely or
knowingly provokes the use of force against himself
unless such force is so great that he reasonably believes
that he is in imminent danger of death or serious bodily
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harm and that he has exhausted every reasonable means to
escape such danger other than the use of force which is
likely to cause death or serious bodily harm to the
assailant.
These instructions are closely patterned after MCJI 3-102,
3-115(a), and 3-105, and with the exception of the good faith
withdrawal exception found at 5 45-3-105(2)(b), MCA, completely
represent the law on justifiable use of force in Montana, including
the Graves instruction. "If the instructions, reviewed as a whole,
fully and fairly present the law to the jury, the jury has been
properly instructed." Statev.Hall (1990), 244 Mont. 161, 172, 797
P.2d 183, 190. In this case, the judge instructed the jury to
"consider the instructions as a whole . . .'I on two separate
occasions. Thus, the jury was admonished to read the language
"defendant must not be the aggressor" with the language of Jury
Instruction No. 21 setting forth the circumstances that an
aggressor may claim the defense. If the jury found that the
defendant was the aggressor, according to the instructions, they
were required to determine whether he had exhausted every
reasonable means to escape the use of similarly aggressive force
against himself. See Jury Instruction No. 21 and § 45-3-105(2)(a),
MCA. As we stated in Graves:
[T]he test to be applied when error is predicated on a
jury instruction is whether, when the instruction is
considered as a part of the whole body of instructions,
the instruction is prejudicial to the appealing party.
. . .
IfiIIn determining the effect of given instructions,
. . . if they fairly tender the case to the jury, the
fact that one instruction, standing alone, is not as full
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or accurate as it might have been is not reversible
error. ' "
Graves, 622 P.2d at 210-11 (quoting statev. Reiner (1978), 179 Mont.
239, 244-45, 587 P.2d 950, 953-54). We find that the jury
instructions, when read as a whole, accurately represent the law of
justifiable use of force; that there was no prejudice to Stone: and
that the jury was properly instructed in this case. However, for
future guidance we suggest that where there is evidence to support
instructing the jury on one or both of the exceptions found at
5 45-3-105(2)(a) and (b), MCA, that a paragraph like subparagraph
(1) of Instruction No. 20 not be given out of context, but be read
in combination with the statute's exceptions so that the
instruction is clearer to the jury.
Stone further argues that questions sent to the judge from the
jurors indicate confusion and misunderstanding of the law, implying
that the jury verdict should be impeached. The questions were as
follows:
JURY: Re Instruction #20. Must all 5 requirements be
met in order to be justified? If not, which ones must be
met in order to be justified in self defense?
JUDGE: The answer to your question is yes, but remember
all the instructions are to be considered together.
Later, the jury submitted this question:
JURY: We all agree on #l that the defendant is the
aggressor. At this point we are not agreed on the
other 4. Does our agreement on point #l make the
defendant legally not justified, as he can't meet all 5
requirements on this Instruction #20?
JUDGE: I cannot answer your question any further.
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Rule 606 (b) r M.R.Evid, prohibits exploring the mental
processes of jurors except for limited situations which are not
present in this case.
Without exploring the jurors' states of mind, and based on the
record available, the decision to grant a new trial was within the
District Court's discretion. Absent a clear abuse of discretion,
we will not disturb that decision on appeal. State v. Arlington (Mont.
1994), 875 P.2d 307, 321, 51 St. Rep. 417, 427.
We conclude that the jury instructions, when considered
together, fairly instructed the jury regarding justifiable use of
force, and that the District Court did not abuse its discretion
when it denied defendant's motion for a new trial.
We affirm the judgment of the District Court.
We concur:
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