State v. Brandon

No. 93-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DUANE BRANDON,
Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:
For Appe 1 lant:
Charles F. Moses; Moses Law Firm, Billings, Montana

For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg
Coughlin, Ass't Attorney General, Helena, Montana
Wm.,Nels Swandal, Park County Attorney, Jon Hesse,
De&y Park County Attorney, Livingston, Montana

Submitted on Briefs: January 7, 1994
Decided: March 22, 1994
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.

Appellant Duane Brandon (Brandon) appeals the Sixth Judicial

District Court, Park County, jury verdict which found him guilty of

conspiracy to commit deliberate homicide against his wife, Patsy

Brandon (Patsy). We affirm.

Five issues are before this Court:

1. Did the District Court err by refusing Brandon's proposed

jury instructions on solicitation and entrapment?

2. Did the District Court err by denying Brandon's motion to

dismiss and acquit on the grounds of entrapment?
3. Did the District Court err by restricting Brandon's cross-

examination of the informant?

4. Did the District Court err by refusing to admit Brandon's

statement to police into evidence?

5. Did the District Court err by refusing Brandon's motion

for a change of venue?

Brandon and Patsy were married for approximately thirty years.

They lived in Livingston, Montana, and had three children. Brandon

was a self-employed heavy equipment operator/contractor and Patsy

was a clerk at Gateway Office Supply. After the couple separated

in August 1991, Patsy moved to a trailer court near Livingston.

Divorce proceedings began in October 1991, and the parties

attempted to negotiate a property settlement. Although the parties

constructed a draft agreement, no final agreement was ever reached.

Roger Gorham (Gorham) was an acquaintance of Brandon's; they

2
met when Brandon was working on a road in the subdivision where
Gorham lived. Upset about his pending divorce and potential
financial difficulties associated with the future property
settlement, Brandon told Gorham that he wished his wife would
"disappear.t' Brandon hoped Patsy would have an accident or that
"somebody would take a shot at her."
Sensing Brandon's mind-set, Gorham suggested that Brandon
discuss his divorce problems with Bill Bartlett (Bartlett), a
Bozeman attorney. On October 14, 1991, Gorham drove Brandon to
Bozeman to meet with Bartlett. During the drive, Brandon stated
that he wished his wife was dead or that someone would kill her.
When Gorham introduced Brandon to Bartlett, but before Brandon and
Bartlett met privately, the trio joked about Brandon wanting to
kill his wife.
After the consultation, Brandon and Gorham returned to
Livingston and Gorham went to a motel lounge for a drink. While
there, Gorham told Park County Undersheriff Lee Keto that a mutual
friend wanted Gorham to kill his wife. The two laughed, and no
more was said at that time.
On February 3, 1992, Brandon visited Gorham and told him that
he had met with an attorney and learned that he was going to have
to pay a large divorce settlement. Brandon wanted Gorham to kill
Brandon's wife; Gorham was to receive $lO,OOO--possibly in the form
of construction work--as payment for killing Brandon's wife.
They were to meet later that evening to discuss the details.
Following the first visit, Gorham contacted Undersheriff Keto,

3
informing him that Brandon had made statements about wanting to
kill Patsy. With Gorham's consent, Park County sheriffs attached
a hidden wire, or microphone, to Gorham.
Gorham then drove to Brandon's home and picked him up. They
drove to the trailer court where Patsy lived. While there, Brandon
discussed methods of killing Patsy. The conversation was recorded
by law enforcement officers.
Brandon suggested that Gorham asphyxiate Patsy with natural
gas. He gave Gorham suggestions on how to avoid detection.
Brandon alternatively suggested that Gorham might lure Patsy to Big
Timber, kill her, and dump her body in a "green box," or trash
disposal bin. He described in detail the location of the disposal
bins. Brandon told Gorham he was leaving Montana temporarily and
wanted the job done while he was gone.
To assist Gorham, Brandon had Gorham write down Patsy's place
of employment, her work phone number and her work schedule.
Brandon wanted someone to find Patsy's body while Brandon was gone
from the state. Brandon even devised a signal by which Gorham
could convey to Brandon, through Brandon's girlfriend, whether
Patsy's body was found. When Gorham asked if Brandon might have
second thoughts about this later, Brandon made it clear that he was
serious and that he wanted his wife killed.
On the following day, Gorham again met with Brandon. This
conversation was recorded as well. At that meeting, Brandon
delivered a .22 caliber pistol to Gorham. Brandon taught Gorham
how to use the gun and suggested that Gorham purchase solid-point

4
bullets, rather than hollow points, because they "penetrate
better.** Gorham asked, "Do you think these will go through her
skull?" The following exchange occurred:
BRANDON: Oh yeah. If you could shoot her in, right in
here, the butt of the ear, right in here somewhere,
it'll--it'll put her down. And then the best thing to do
is to put the [gun] right up there close and just pull it
off about three times, four times. I'll guarantee that
son of a bitch will do the job. That [expletive] thing
right there I shot a bull moose with antlers on it about
this wide.
GORHAM : Okay, this is it then. . . . Are you sure
this'11 do the trick?
BRANDON: You [expletive] right. If that son of a bitch
will kill a bull moose, it ought to kill her.
Brandon advised Gorham that he could dispose of the gun by throwing
it into a deep hole in the Yellowstone River, and explained to him
where the hole was located.
Later that evening, Gorham again met briefly with Brandon.
This conversation was also recorded. Gorham confirmed that Brandon
wanted his wife killed. Gorham asked about his payment, reminding
Brandon that he was to receive $10,000. Brandon responded, "I'll
do it, [expletive], even if I have to haul gravel to finish it up."
Brandon then advised Gorham to put a garbage sack over Patsy's head
"to keep her from bleeding all over the [expletive] place."
Brandon further suggested:
If you can get into a situation where you can knock her
in the [expletive] head, cold cock her, then you can take
that [expletive] gun and stick it right up here, and
angle it up into her [expletive] brain, like this way. .
. . Yeah, and it won't leave no [expletive] blood right
here. You might get a little out of her [expletive] nose
or something, but hey, you get a [expletive] gunny sack
over her, or a plastic sack over her, and you got it
made.
5
 Brandon was arrested the following day. On February 19, 1992,
Brandon was charged with conspiracy to commit deliberate homicide
in violation of § 45-4-102, MCA, or, in the alternative, with
solicitation to commit deliberate homicide in violation of § 45-4-
101, MCA. The conspiracy count was dismissed on September 8, 1992,
and Brandon was tried by a jury on December 14-17, 1992. The jury
found Brandon guilty of solicitation to commit deliberate homicide.
Brandon's motion for a new trial was denied.
On February 12, 1993, Brandon was sentenced to twenty-five
years in prison with five years suspended. He was designated a
dangerous offender for purposes of parole eligibility. Brandon
appeals. We affirm.

Did the District Court err by refusing Brandon's proposed jury
instructions on solicitation and entrapment?
Our standard of review of jury instructions in criminal cases
is whether the instructions, as a whole, fully and fairly instruct
the jury on the law applicable to the case. State v. Lundblade

(1981) r 191 Mont. 526, 529-30, 625 P.2d 545, 548. The district
court must instruct the jury on each issue or theory which is
supported by the record. State v. Popescu (1989), 237 Mont. 493,
495, 774 P.2d 395, 396. Brandon contends that he was denied an

opportunity for a fair trial because the District Court refused his
instructions regarding solicitation and entrapment.
Brandon claims that the court should have accepted his
Proposed Instruction No. 27:

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 YOU are instructed that a conviction of criminal
solicitation must be based upon prosecutorial proof
beyond the mere verbal act of soliciting another to
commit a crime. The State is required to present
sufficient evidence to permit a jury to conclude beyond
a reasonable doubt that the solicitation itself was done
with the specific purpose to promote or facilitate the
commission of the crime solicited. Accordingly, a
conviction cannot be established where the actions have
been innocently motivated, done in jest, and with no
proof beyond a reasonable doubt of a purpose to actually
intend to carry out such a crime.

Brandon also offered Proposed Instruction No. 28:

You are instructed that one of the elements required to
be proven in this case is that the defendant solicited
Roger Gorham for the purpose of committing a homicide.
The evidence must be sufficient to prove beyond a
reasonable doubt that Duane Brandon acted with the
specific intent to promote or facilitate the commission
of a crime. It is not sufficient, however, to show
merely that the accused solicited the commission of the
crime. Rather, sufficient circumstances surrounding the
overt act of solicitation must be presented which
corroborate that the act in fact was done with the
requisite specific intent or purpose. This protects
those actions that may have been innocently motivated,
done in jest, or with no purpose to actually have a crime
committed.

These instructions, Brandon contends, properly instruct that to

prove solicitation, the State must additionally prove

"circumstances strongly corroborative of [specific] intent." State

v. Aalbu (Colo. 1985), 696 P.2d 796, 805 (quoting State v. Latsis
(Cola. 1978), 578 P.2d 1055, 1057).

In Aalbu and Latsis, the Colorado Supreme Court considered

constitutional challenges to Colorado's criminal solicitation

statute on grounds of vagueness and overbreadth. Interpreting

Colorado's solicitation statute in both cases, the court held that

the statute--which required the "added element" of circumstances

strongly corroborative of specific intent--was neither overly broad

7
nor unconstitutionally vague.
The State argues, and we agree, that Montana's solicitation
statute does not require proof of circumstances strongly
corroborative of specific intent. Rather, 5 45-4-101(l), MCA,
provides that
[a] person commits the offense of solicitation when, with
the purpose that an offense be committed, he commands,
encourages, or facilitates the commission of that
offense.
(Emphasis added.) According to the State, the jury was properly
instructed on the elements of solicitation. The State proposed,
and the District Court adopted, Instruction No. 11, which read:
You are instructed that to convict the defendant of
solicitation, the State must prove the following
elements:
First: That the defendant commanded, encouraged or
facilitated Roger Gorham to commit deliberate homicide,
a felony: and
Second: That the defendant did so with the purpose that
the crime of deliberate homicide be committed, whether or
not it was actually committed.
If you find from your consideration of all the evidence
that each of these elements has been proved beyond a
reasonable doubt, then you should find the defendant
guilty. If, on the other hand, you find from your
consideration of all the evidence that any of these
elements has not been proved beyond a reasonable doubt,
then you should find the defendant not guilty.
The jury also received Instruction No. 12 on the requisite state of
mind or intent to find Brandon guilty:
A person is not guilty of an offense unless, with respect
to each element described by the statute defining the
offense, he acts while having one of the mental states
described by the statute.
A material element of every offense is a voluntary act,
which includes an omission to perform a duty which the
8
 law imposes and which he is physically capable of
performing.
The prosecution must prove, beyond a reasonable doubt,
not only the acts alleged, but also that the defendant
possessed, at the time of the act, the mental state
required.

The jury received Instruction No. 17, which provided that

[a] person acts purposely when it is his conscious object
to engage in conduct of that nature or to cause such a
result.

We hold that the jury was properly instructed as to the definition

of "purposely,11 the mental state element of solicitation. The

State's instructions adequately covered the law on solicitation and
the requisite mental state. See Funk v. Robbin (1984), 212 Mont.

437, 447, 689 P.2d 1215, 1221.

Brandon asserted the defense of entrapment at trial. The

District Court refused Brandon's Proposed Instruction No. 36, which

read:

You are instructed that with respect to the defense of
entrapment, the State is required to prove beyond a
reasonable doubt that the defendant, Duane Brandon, was
not induced to commit the crime alleged. In addition,
the State must prove beyond a reasonable doubt that in
fact Duane Brandon was predisposed to commit the crime
that is alleged in this case.

In considering these elements, evidence of predisposition
must come before the oovernment initiated its olan to
induce the defendant to commit a crime for the purposes
of prosecution. Accordingly, statements made by the
defendant, Duane Brandon, during the period of time that
Roger Gorham had a body wire is not sufficient evidence
to show predisposition as a matter of law.

(Emphasis added). According to Brandon, the court committed

reversible error by proffering instructions which did not require

the State to show that Brandon was "predisposed to commit the

9
illegal acts prior to the initial contact by government agents."
United States v. Mkhsian (9th Cir. 1993), 5 F.3d 1306, 1310 (citing
Jacobson v. United States (1992), 503 U.S. __, _, 112 s.ct.
1535, 1540, 118 L.Ed.2d 174, 184).
The State asserts that Brandon's proposed instruction is
argumentative and unsupported by the case law he cites. The State
characterizes the phrase, "predisposition must come before the
government initiated its plan to induce the defendant to commit a
crime for the purpose of prosecution," as another attempt by
Brandon to present his argument to the jury.
Instruction No. 18, regarding the defense of entrapment,
provided:
You are instructed that the issue of entrapment has been
raised in this case. When a person has no previous
intent or purpose to commit a crime, but is induced or
persuaded by law enforcement officers or their agents to
commit this crime, he is the victim of entrapment and the
law, as a matter of policy, forbids his conviction in
such case. On the other hand, where a person already has
the readiness and willingness to engage in a crime, the
mere fact that law enforcement officers or their agents
provided what appears to be a favorable opportunity is
not entrapment. The law, however, does not permit law
enforcement officers or their agents to originate or
implant the criminal design in the defendant's mind.

Therefore, if you should find beyond a reasonable doubt
from the evidence in this case that before anything at
all occurred respecting the alleged offense, in this case
solicitation, the defendant was ready and willing to
commit such a crime, then you should find that the
defendant is not a victim of entrapment.
If the evidence in this case leaves you with a reasonable
doubt that the defendant had the previous intent or
purpose to commit the offense of solicitation except for
inducement or persuasion of some law enforcement
officer's agent, then it is your duty to find him not
guilty. The burden is upon the State to prove beyond a
reasonable doubt that the defendant was not entrapped.
10
Instruction No. 19 read:
You are instructed that you may find the defendant was
entrapped if you find each of the following:
(1) That criminal intent or design originated in the mind
of the police officer or informer: and
(2) That there was an absence of criminal intent or
design originating in the mind of the accused; and
(3) That the defendant was lured or induced into
committing a crime he had no intention of committing.
In addition, Instruction No. 20 provided:
You are instructed that a person is not guilty of an
offense if his conduct is incited or induced by a public
servant or his agent for the purpose of obtaining
evidence for the prosecution of such person. However,
this defense is not available if a public servant or his
agent merely affords to such person the opportunity or
facility for committing an offense in furtherance of
criminal purpose which such person has originated.
As Brandon correctly asserts, these instructions do not
comport, in whole, with the requirements of Mkhsian. See Mkhsian,
5 F.3d at 1310-11. Specifically, Instruction No. 18 contains the
phrase:
where a person already has the readiness and willingness
to engage in a crime, the mere fact that law enforcement
officers or their agents provided what appears to be a
favorable opportunity is not entrapment.
That phrase, used in Jacobson, was rejected by the court in Mkhsian
because it wrongly permitted the jury to reject the entrapment
defense:
The instruction given by the district court that it is
not possible to entrap '*a person [who] already has the
readiness and willingness to break the law" does not
conform to Jacobson's requirements. "Already" does not
necessarily mean "before the [glovernment intervened":
indeed, it could mean, for example, that even "if
[Mkhsian] was not initially disposed to [buy] drugs, he
could . . . develop such a disposition during the later
coursetE of interacting with Stanton (citation omitted).
So interpreted, the instruction does not correctly state
the law.
11
Mkhsian, 5 F.3d at 1311.
We must determine, then, whether inclusion of the phrase

rejected in Mkhsian is reversible error. See United States v.

Montoya (9th Cir. 1991), 945 F.2d 1068, 1074. We hold that the

error was harmless because: 1) additional language in Instruction
Nos. 18, 19 and 20 make it clear that Brandon was not entrapped if
criminal intent originated in his mind rather than that of the

police or Gorham; and 2) Instruction No. 18 was not identical to

the instruction rejected in Mkhsian.

For future reference when instructing on the defense of

entrapment, Montana courts shall not include in any entrapment

instruction the phrase

where a person already has the readiness and willingness
to engage in a crime, the mere fact that law enforcement
officers or their agents provided what appears to be a
favorable opportunity is not entrapment.

We reemphasize that "it is the government's burden (once evidence

of inducement is shown by the defendant) to prove that the

defendant 'was predisposed to violate the law before the

[glovernment intervened . . . . I II Mkhsian, 5 F.3d at 1311

(citation omitted). We suggest that be made clear in entrapment

instructions.

Brandon's proposed instruction, on the other hand, is clearly

argumentative. Therefore, we hold that his instruction was

properly refused by the District court. See State v. Pecora

(1980) t 190 Mont. 115, 120, 619 P.2d 173, 175. The court's

instructions fully and fairly instructed the jury on the applicable

law in this case. See Lundblade, 625 P.2d at 548. Finally, given

12
the recent Ninth Circuit and U.S. Supreme Court decisions involving
entrapment instructions, we suggest that the Attorney General
review the standard entrapment instructions offered by prosecutors
in Montana to ensure that such instructions comport with current
federal and State law.
II
Did the District Court err by denying Brandon's motion to
dismiss and acquit on the grounds of entrapment?
In reviewing a district court's denial of a motion to dismiss
based on entrapment, this Court reviews the evidence and inferences
therefrom in a light most favorable to the State. State v. Kim

(1989) r 239 Mont. 189, 194, 779 P.2d 512, 515 (citation omitted).
The decision to direct a verdict at the close of the State's case
lies within the sound discretion of the trial court and will not be
disturbed on appeal absent an abuse of discretion. State v. Graves
(1990), 241 Mont. 533, 535, 788 P.2d 311, 313.
Montana's statute on entrapment, § 45-2-213, MCA, provides
that
[a] person is not guilty of an offense if his conduct is
incited or induced by a public servant or his agent for
the purpose of obtaining evidence for the prosecution of
such person. However, this section is inapplicable if a
public servant or his agent merely affords to such person
the opportunity or facility for committing an offense in
furtherance of criminal purpose which such person has
originated.
Entrapment is an affirmative defense and the burden of proving it
rests with the defendant. State v. Kamrud (1980), 188 Mont. 100,
105, 611 P.2d 188, 191 (citation omitted). Although a court may
determine that entrapment exists as a matter of law, Kamrud, 611
13
P.2d at 191, the issue is one for the jury when conflicting
evidence is presented. State v. McClure (1983), 202 Mont. 500,
503, 659 P.2d 278, 280.

The three elements of the entrapment defense are set forth in

State v. Farnsworth (1989), 240 Mont. 328, 331, 783 P.2d 1365, 1367

(citations omitted):

1 . Criminal intent or design originating in the mind of
the police officer, or informer:

2. Absence of criminal intent or design originating in
the mind of the accused: and
3. Luring or inducing the accused into committing a
crime he had no intention of committing.

Brandon argues tbat Bartlett's testimony places any comments by

Brandon in the "proper perspective." According to Brandon,

testimony by Gorham and Officer Lynn Gillett further confirms that

Brandon's notion of killing his wife was merely a joke. Brandon

contends that the waiver of liability and consent forms signed by

Gorham--whereby he agreed with Park County sheriffs to assist in

the criminal investigation by wearing a wire and having one

installed in his truck--are evidence that Gorham was to solicit

Brandon to commit a crime. However,

there is a controlling distinction between inducing a
person to do an unlawful act and setting a trap to catch
him in the execution of a criminal design of his own
conception.
State v. Karathanos (1972), 158 Mont. 461, 470, 493 P.2d 326, 331.

The State's motion for leave to file the information against

Brandon illustrates that the idea to kill Patsy originated with

Brandon, not with Gorham: "Mr. Gorham told Sheriff Johnson that

14
the defendant had contacted him for the second time and asked
Gorham to kill defendant's wife, Patsy Brandon." The jury heard
conflicting evidence as to where the criminal intent originated,
and made its determination. The record supports the jury's
rejection of the defense of entrapment.
During their first recorded conversation, Gorham suggested
that Brandon might have second thoughts. Brandon's response
confirmed that the idea of killing Patsy originated with Brandon:
BRANDON: No, [expletive]. You, you know, I give you the
second [expletive] chance. I asked you, do you want to
be sure 'bout that? [Expletive], I was on your doorstep.
I, I had it all lined out . . . [expletive], I'm serious.
Brandon was not lured or induced into committing a crime which he
had no intention of committing. Rather, it is clear from the
record that Brandon developed the murderous scheme, approached
Gorham, and asked Gorham to kill Patsy. Applying the Farnsworth
standard to this case, and viewing the evidence in the light most
favorable to the State, we conclude that the District Court did not
abuse its discretion by denying Brandon's motion for entrapment.
III
Did the District Court err by restricting Brandon's cross-
examination of the informant?
Brandon contends that the District Court improperly restricted
his cross-examination of Gorham. He claims he should have been
allowed to question Gorham about a restraining order against
Gorham, which was issued in an unrelated civil action with Gorham's
insurance company. The State objected on the grounds that the
evidence was irrelevant. The objection was sustained and the jury
15
was ordered to disregard the question.
Part of Brandon's defense at trial was that Gorham had asked
him to burn Gorham's house down so Gorham could collect the fire
insurance benefits. According to Brandon, he refused, and after
Gorham or someone else burned the house down, Gorham had a motive
to entrap Brandon in criminal activity in order to keep Brandon
from revealing Gorham's earlier request for assistance in the
scheme.
Brandon argues that the line of questioning regarding the
restraining order went to Gorham's credibility. The State, on the
other hand, contends that evidence regarding a restraining order in
an unrelated civil action is irrelevant and prejudicial. After a
careful review of the record, we determine that Brandon failed to
establish that his defense was restricted or that the evidence
would have operated to impeach Gorham's credibility.
Brandon further contends that the District Court erred by
refusing his proposed exhibits, which, he asserts, tended to prove
that Gorham concealed himself to avoid testifying at trial. The
exhibits were the State's motion for a continuance and two
affidavits of the deputy county attorney which indicated that
officers were unable to locate Gorham, that the State believed he
had fled Montana, and that the State believed he was attempting to
elude law enforcement officers.
Brandon called Deputy County Attorney Jon Hesse to the stand
during his case-in-chief. Hesse testified that he filed the motion
because he did no,t know where Gorham was prior to trial and thought

16
that Brandon and Gorham might be acting in concert to ensure that
Gorham would be unavailable for trial. He further testified that
his understanding that Gorham had not contacted the sheriff's
office was incorrect. In fact, Gorham had called the sheriff's
office. Gorham was later located in Bozeman. After assuring
prosecutors he would be available for all proceedings, he was
released without bail.

The District Court refused Brandon's exhibits on the grounds
that they were irrelevant. The court also concluded that they were
cumulative, since Mr. Hesse had testified about the contents of the
documents and the whereabouts of Gorham before trial. It is
apparent that Brandon--in an effort to impeach Gorham's
credibility--was able to present evidence of the State's prior
belief that Gorham had fled. Sufficient evidence was before the
jury from which Brandon could attack the credibility of Gorham, who
testified, on these areas. Brandon has not established that the
District Court abused its discretion by restricting his cross-
examination or by refusing his proffered exhibits. See State v.
McNatt (1993), 257 Mont. 468, 474-75, 849 P.2d 1050, 1054.
IV
Did the District Court err by refusing to admit Brandon's
statement to police into evidence?
Following his arrest, Brandon was interviewed by Park County
Sheriff Charley Johnson. During trial, Brandon moved to admit into
evidence Proposed Exhibit I, a transcript of the statement he had
given to Sheriff Johnson. The State objected to the exhibit

17
because it was inadmissible at that time. The court withheld
ruling on the matter. The following day at trial, Brandon again
offered Exhibit I. The District Court refused its admission.
Later in chambers, defense counsel urged the admission of Exhibit
I. The State objected on the grounds that the statement was
hearsay, self-serving, and not subject to cross-examination because
Brandon had not testified. The exhibit was refused.
Brandon argues that the statement should have been admitted
under Rule 801(d)(l)(B), M.R.Evid., because, as a prior statement
by a witness, it was not hearsay and was properly "offered to rebut
an express or implied charge against the declarant of subsequent
fabrication, improper influence or motive." However, before prior
statements qualify for admission under the rule, the declarant must
testify and be subject to cross-examination. State v. Scheffelman
(1991), 250 Mont. 334, 338, 820 P.2d 1293, 1296 (citation omitted).
In this case, Brandon had not testified at the time the
statement was offered. Therefore, Brandon's statement was not
subject to cross-examination. Because the exhibit was not offered
after Brandon testified, it appears that Brandon was attempting to
place his unsworn testimony before the jury without taking the
witness stand. Brandon's pretrial statement was clearly
inadmissible under Rule 801, M.R.Evid. The District Court did not
abuse its discretion by refusing into evidence Brandon's pretrial
statement to police. See Steer, Inc. v. Dep't of Revenue (1990),
245 Mont. 470, 475, 803 P.2d 601, 604.
V

18
 Did the District Court err by refusing Brandon's motion for a
change of venue?
On March 5, 1992, Brandon moved the District Court for a
change of venue on the grounds of prejudicial pretrial publicity.
Brandon was concerned that he would not receive a fair trial in
Park County. In support of his contention, Brandon attached to his
affidavit several news articles about the alleged offense. The
court held oral argument on his motion on November 12th and denied
the motion on November 19, 1992.
An accused is entitled to a change of venue when there are
reasonable grounds to believe that a prejudicial atmosphere exists
within the present venue which creates a reasonable apprehension
that he cannot receive a fair trial. State v. Palmer (1986), 223
Mont. 25, 29, 723 P.2d 956, 959. To be granted a change of venue
based on prejudicial pretrial publicity, Brandon must show: 1)
that the news reports complained of were inflammatory: and 2) that
the publication of articles actually inflamed the prejudice of the
community to an extent that a reasonable possibility exists that he
may not receive a fair trial. See State v. Ritchson (1982), 199
Mont. 51, 54, 647 P.2d 830, 832. Inflammatory news articles are
characterized by

editorializing on the part of the media or any calculated
attempt to prejudice public opinion against [the
defendant] or to destroy the fairness of the pool from
which his prospective jurors would be drawn.
State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350.
During voir dire, Brandon unsuccessfully attempted to
establish that the news articles inflamed the prejudice of the
19
community or that the jurors harbored any opinions about Brandon's
guilt. Of the twenty-six panel members questioned by defense
counsel, eighteen had read something about the case and eight had
read nothing about the case. Notably, however, defense counsel did
not challenge any of the jurors for cause.
Brandon further claims that his argument is bolstered because
many of the potential jurors read a news article printed on the
Friday immediately preceding the Monday trial date. However,
Brandon did not renew his motion for a change of venue based on the
Friday article.
After a thorough review of the record, we determine that the
newspaper articles were factual and void of editorializing.
Moreover, Brandon failed to demonstrate through voir dire, or at
any other time, .that the news reports were inflammatory or that
they inflamed the prejudice of the community such as to warrant a
change of venue. Denial of a motion for change of venue is not
reversible error in the absence of an abuse of discretion by the
trial court. State v. Smith (1986), 220 Mont. 364, 377, 715 P.2d
1301, 1309. We hold that the District Court did not abuse its
discretion in denying Brandon's motion for a change of venue.
Affirmed.

Justicef
\

20
We concur:

21
 March 22, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Charles F. Moses, Esq.
Moses Law Firm
P.O. Box 2533
Billings, MT 59103

Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant
Justice Bldg.
Helena, MT 59620

Wm. Nels Swandal
County Attorney
Park County Courthouse
Livingston, MT 59047

ED SMITH
CLERK OF THE SUPREME COURT
STATE&OF ~@NTANA