No. 94-589
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
THE STATE OF MONTANA, * ~,
Plaintiff and Respondent,
-.msf
v.
OCT17 1995
BRUCE HOLTE HAGEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi, Sherlock & Nardi, Kalispell,
Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Kathy Seeley, Assistant Attorney General, Helena,
Montana
Robert Slomski, County Attorney, Thompson Falls,
Montana
Submitted on Briefs: September 7, 1995
Decided: October 17, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Bruce Hagen was convicted by a jury in the Twentieth Judicial
District Court, Sanders County, of deliberate homicide in violation
of § 45-5-102, MCA, and aggravated assault in violation of 5 45-5
202, MCA. Hagen appeals the decision of the District Court denying
his proposed jury instruction on justifiable use of force in
defense of an occupied structure. He also appeals on the grounds
of ineffective assistance of counsel. We affirm.
Hagen raises the following issues on appeal:
1. Did the District Court err in refusing Bruce Hagen's
proposed jury instruction on the justifiable use of force in
defense of an occupied structure?
2. Was Bruce Hagen denied effective assistance of counsel?
Bruce Hagen is a fifty-eight-year-old retired federal
government employee. Bruce and his wife, Gabby, lived in Sanders
County, Montana, on Highway 200 between Plains and Thompson Falls.
The Hagen residence is a mobile home with a log structure addition.
Bruce and Gabby lived on Bruce's government pension.
In late September 1993, a forest fire burned in the vicinity
of the Hagen residence. The fire burned within approximately
thirty feet of the Hagens' home before it was stopped. Throughout
the end of September and beginning of October, United States Forest
Service personnel as well as private firefighters were in the area
surrounding the Hagen residence extinguishing the fire.
Bruce received his pension checks the first of each month. On
October 1, 1993, Bruce went to Krazie Emies, a sporting good store
2
and pawn shop in Thompson Falls, and retrieved his .I2 gauge
shotgun he had pawned there. When he returned home, Bruce, Gabby,
and Steve Jennette, an acquaintance living in the Hagens' camper
trailer parked near their residence, began drinking. They drank
throughout the afternoon. At approximately 2:00 p.m., Bruce and
Steve began shooting the shotgun into a woodpile near the Hagen
residence.
Officer Keith Danhoff of the Montana Highway Patrol was parked
at the It Shop located directly across Highway 200 from the Hagen
residence. Officer Danhoff heard the shots and drove up to the
Hagen residence. He advised Bruce that he should not shoot the
shotgun because firefighters and Forest Service personnel were
still in the area. Officer Danhoff testified that Bruce became
agitated and argumentative. Officer Danhoff returned to the It
Shop where he heard one more shot come from the Hagen residence.
Officer Danhoff waited approximately twenty minutes and heard no
more shots.
Between 5:00 and 6:00 p.m., Gabby stated that she wanted to go
into town to buy tobacco and continue drinking. Bruce did not want
to drive to town because he had been drinking and he did not like
to drive at night. Bruce and Gabby argued over whether she should
go to town. Ultimately, Bruce gave his truck keys to Steve
Jennette and Steve and Gabby went to town. Bruce remained at the
Hagen residence.
At approximately 5:30 p.m., Sanders County Sheriff Sammy Tomas
went to the Hagen residence to investigate the gunshots reported
3
earlier in the afternoon. When Sheriff Tomas approached the house
he observed that the front door was open with only the screen door
being closed. Sheriff Tomas observed Bruce lying on the couch in
the living room. Sheriff Tomas knocked on the screen door and
yelled at Bruce, but was unable to wake him. Sheriff Tomas
testified that he assumed Bruce was passed out and left the Hagen
residence.
Gabby and Steve drove to town in Bruce's truck. Gabby bought
tobacco, and she and Steve proceeded to Dick's Club, a local
tavern, to drink. They stayed at Dick's Club for several hours and
consumed several drinks. Gabby and Steve left Dick's Club and
drove toward the Town Pump Casino. On the way to the Town Pump
Casino, Gabby and Steve experienced mechanical problems with
Bruce's truck. Gabby and Steve abandoned the truck at the Town
Pump Casino and went inside to look for a ride home.
Gabby and Steve ran into acquaintances Jim Enger and his
common-law wife, Alice Goodrich, at the Town Pump Casino. Jim and
Alice, like Gabby and Steve, had been drinking and were intoxicat-
ed. Gabby explained to Jim and Alice that she and Steve were
having vehicle problems. Jim and Alice called their friend, Reece
Cobeen, at his home, and Reece agreed to come to the Town Pump
Casino and give Gabby and Steve a ride home. Reece testified that
he had not been drinking.
Reece drove a compact pickup truck; therefore, Steve and Jim
rode in the back while Reece, Gabby and Alice rode in the cab.
4
They arrived at the Haqen residence at approximately I:OO a.m. on
October 2, 1993.
When the party arrived at the Hagen residence, Gabby invited
everyone into the house. Steve and Reece were unloading Steve's
belongings from Reece's truck and hauling them to the camper
trailer located near the Hagens' house. Gabby and Jim proceeded up
the steps and onto the porch of the house. Gabby tried to open the
door but was unable to do so. The door did not have a lock;
instead, the Hagens customarily wedged a board between the door
handle and the floor from the inside of the house. This barred the
door closed and prevented it from being opened from the outside.
Gabby began knocking on the door and yelling for her husband,
who did not respond. Gabby asked Jim to help her wake Bruce. Jim
began kicking on the door and yelling for Bruce. Jim testified
that he and Gabby banged on the door and yelled for approximately
five minutes. Reece Cobeen testified that while Jim and Gabby were
banging on the door, he and Steve finished moving Steve's belong-
ings into the camper and then went and stood near the bottom of the
stairs. The witnesses' versions of exactly what happened from this
point vary slightly.
Jim testified that the door suddenly opened, and he entered
the Hagen residence. He stated that Bruce answered the door
carrying his .12 gauge shotgun. He testified that soon after
entering the residence, Bruce struck him twice with the shotgun.
Jim stated that he did not fall to the ground, but was knocked away
from Bruce and was bent over toward the floor. He claims that
5
Bruce then stated, "Jim get out or I'm going to kill you." Jim
testified that he turned and was heading for the door when he heard
Bruce pump the shotgun lever. Jim heard the shotgun fire. Jim was
struck in the left arm and left side of the body. He fell to the
floor and remembered nothing else from the remainder of the
incident.
Gabby testified that the door suddenly opened and her husband
pulled or yanked Jim into the Hagen residence. She testified that
the two men struggled. She claims that she then walked into the
house and past Jim and Bruce. She proceeded to the rear of the
house. While in the rear of the house, out of view of her husband
and the others, she heard a shot or shots. She remained in the
rear of the residence until the incident was over and then exited
the residence through the back door.
Reece testified that he was standing near the foot of the
stairs leading up to the front porch of the Hagen residence. He
claimed that when the door opened, Jim, Gabby and Alice walked into
the residence. He testified that as soon as they entered the
residence, Bruce escorted Gabby back outside and told her to "just
go. 1' Bruce then returned inside the residence where Jim and Alice
were. Reece then heard a loud crashing noise, like someone or
something had fallen to the floor. He then claimed he heard Bruce
say, "Jim, don't fuck with me or I will kill you." He then claimed
to have heard two gunshots coming from inside the residence.
Bruce testified that he was awakened by a loud, impatient
banging on his front door. As he walked to the door, he picked up
6
his loaded shotgun. He did not specifically recall removing the
board which held the door shut, but admitted he must have done so
to open the door. Bruce claimed that when he opened the door he
was immediately encountered by a man on his front porch. He
claimed he did not know that it was Jim at the time of the
altercation. Bruce testified that he and Jim wrestled for the gun.
Bruce claims that he struck Jim in the head with the gun, knocking
him down. Bruce then testified that Jim made a move toward him.
Bruce claimed that as Jim came toward him, he pumped the lever of
the shotgun to transfer a shell from the magazine into the chamber
and the gun fired. He claimed he then turned toward the door and
saw a pair of legs rushing toward him. He pumped another shell
into the chamber and fired. He then pumped the final shell into
the chamber and fired again. He claimed he did not know who he was
shooting and testified that he would have shot anyone at that time.
Of the three shots fired, the first shot hit Jim. Another
shot struck the rails on the back of the porch. The other shot
struck Alice in the midsection, causing massive injuries. Alice
was dead when medical personnel arrived.
Alan Boehm, the State Crime Lab's firearms and tool mark
examiner, examined and tested the shotgun and testified that even
if the trigger was depressed while the pump action was cocked, this
particular shotgun would not fire. Boehm testified that the
trigger would have to be released and then depressed again for the
shotgun to fire. Boehm also testified that both Jim and Alice were
shot from a distance of less than eight feet.
On October 22, 1993, Bruce was charged by information with one
count of deliberate homicide and one count of aggravated assault in
the Twentieth Judicial District Court, Sanders County. Bruce
pleaded not guilty. Following the May 9 through 12, 1994 jury
trial, Bruce was found guilty of both charges. He was sentenced to
life imprisonment for deliberate homicide plus ten years for the
use of a dangerous weapon. He was further sentenced to twenty
years for aggravated assault plus ten years for the use of a
dangerous weapon. The sentences are to run consecutively.
Issue 1
Did the District Court err in refusing Bruce's proposed jury
instruction on justifiable use of force in defense of an occupied
structure?
At trial Bruce admitted shooting Jim and Alice, but claimed
the shooting was justified in defense of himself and his property.
Bruce sought jury instructions on justifiable use of force in
defense of a person and justifiable use of force in defense of an
occupied structure. The District Court gave the self-defense
instruction, but refused to give an instruction on defense of an
occupied structure. While settling the instructions, the State
argued and the court agreed that defense of an occupied structure
is only a defense to an unlawful entry. The court agreed that
because Gabby invited Jim and Alice into the Hagens' home, Jim and
Alice's entry into the residence was not unlawful. A district
court must only instruct the jury on those theories and issues
8
which are supported by evidence presented at trial. state v.
Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396.
Bruce argues on appeal that the District Court misinterpreted
Montana's statute on justifiable use of force in defense of an
occupied structure. He claims that the entry need not be actually
unlawful; rather, the defendant must reasonably believe that the
entry was unlawful based on the appearances presented to him.
The defense of justifiable use of force in defense of an
occupied structure is set forth at s 45-3-103, MCA, which states:
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.
Bruce argues that § 45-3-103, MCA, only requires his reasonable
belief that Jim and Alice had unlawfully entered his residence for
him to be entitled to an instruction on defense of an occupied
structure. We disagree.
Section 45-3-103, MCA, states that an individual is justified
in using force "when and to the extent that he reasonably believes
that such conduct is necessary to prevent or terminate such other's
unlawful entrv." (Emphasis added.) This Court has consistently
refused to apply the defense of an occupied structure statute in
9
cases in which the initial entry into the structure was in fact
lawful.
In State v. Sorenson (1980), 190 Mont. 155, 619 P.2d 1185, a
bartender shot two bar patrons after an argument. This Court
determined that, while the bartender may have wanted the patrons to
leave the premises, their initial entrance into the bar was not
unlawful. In affirming the trial court's denial of the defendant's
proposed jury instruction on defense of an occupied structure, this
Court stated:
[Section 45-3-103, MCA] is derived from Illinois
which has substantially the same statute. [Citation
omitted. 1
Before the statute is applicable, Illinois case law
requires that the entry must be unlawful; hence, the
defendant may not assert justification where the victims
enter upon the premises lawfully but subsequently engages
in unlawful conduct for which the occupant of the
dwelling seeks to expel the victim. [Citations omitted.]
By its terms, this section only applies to efforts
of a defendant to prevent or terminate an unlawful entry
into occupied premises. It has no application to a
lawful entrv into premises. [Emphasis added.]
Sorenson, 619 P.Zd at 1193-94. We have reiterated this position in
State v. Beach (1991), 247 Mont. 147, 150, 805 P.2d 564, 566,
determining that a defendant was not entitled to a defense of an
occupied structure instruction when the entry which precipitated
the incident was in fact lawful.
We find no merit in Bruce's argument that, even if the entry
was in fact lawful, he is entitled to an instruction on defense of
an occupied structure if he reasonably believed that the entry was
10
unlawful. As discussed above, this Court has consistently held
that to assert the defense of justifiable use of force in defense
of an occupied structure, the entry into the structure must in fact
be unlawful. We refuse to expand the defense beyond what has
previously been recognized. Thus, a defendant may not reasonably
mistake a lawful entry for an unlawful entry and avail himself of
the defense provided for in 5 45-3-103, MCA.
Bruce failed to present any evidence establishing that the
initial entry by Jim or Alice was unlawful. A review of the record
reveals the following facts: Gabby invited Jim and Alice into the
Hagen residence. Gabby knocked on the door in an attempt to awaken
Bruce. Gabby requested Jim's assistance in knocking on the door.
Bruce removed the wooden brace which held the door closed and
opened the door. Jim either walked in through the opened door or
was pulled into the residence by Bruce. Based on the facts
presented at trial, Bruce failed to set forth any set of circum-
stances under which Jim's or Alice's entry into the Hagen residence
could be found to be unlawful. As discussed above, we conclude
that an unlawful entry is a prerequisite to asserting the defense
of justifiable use of force in defense of an occupied structure.
Bruce therefore was not entitled to an instruction on justifiable
use of force in defense of an occupied structure.
Issue 2
Was Bruce denied effective assistance of counsel?
Bruce argues that he was denied effective assistance of
counsel and therefore is entitled to a new trial. In considering
11
ineffective assistance of counsel claims, this Court has adopted
the two-pronged test set forth by the United States Supreme Court
in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674.
First, the defendant must show that counsel's performance
was deficient. This requires showing that counsel made
errors so serious that counsel was not functioning as the
"counsel" guaranteed the defendant ~by the Sixth Amend-
ment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both
showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary
process that renders the result unreliable.
State v. Denny (1993), 262 Mont. 248, 251-52, 865 P.Zd 226, 228
(quoting Strickland, 466 U.S. at 687). Bruce presents several
allegations of ineffective assistance of counsel which we will
address in turn
A. Defense counsel failed to object to the prosecu-
tion's reference during jury voir dire to a witness who
was not called at trial.
Bruce argues that he was denied effective assistance of
counsel when his trial counsel failed to object to a line of
questions during voir dire which referred to Steve Jennette, an
individual who was at the Hagen residence the morning of the
shootings but who was not called to testify. Following the
selection of the twelve jurors, voir dire continued on the
selection of alternate jurors. One member of the jury pool was
Michael Wakefield, a pastor at a local church. During questioning
of this prospective alternate juror, Wakefield stated that he knew
Steve Jennette and had counseled Jennette after the shooting
12
incident. Wakefield stated that he had received "first hand"
information concerning the shooting from Jennette during these
counseling sessions. This line of questioning occurred in the
presence of the jurors already selected. Defense counsel did not
object during the questioning of Wakefield.
In State v. McMahon (Mont. 19951, 894 P.2d 313, 51 St.Rep.
353, we held that the district court erred in failing to grant the
defendant's motion for a mistrial when prospective jurors were
allowed to comment on the defendant's character during voir dire.
However, McMahon is clearly distinguishable from this case. In
McMahon, several jurors made substantial comments concerning what
they perceived as the defendant's poor character, in the presence
of the entire jury panel. McMahon, 894 P.Zd at 315-16.
In this case, no evidence concerning the substance of
Jennette's conversations with Wakefield was presented. In
questioning Wakefield, the prosecution elicited information that
Wakefield in fact knew Jennette and had discussed the shooting
incident with him. No facts pertaining to the incident were
disclosed. While it may have been reasonable for defense counsel
to object to the line of questioning or request an in camera
inspection of Wakefield, such actions by defense counsel were not
mandated by the line of questioning. & Abernathy v. Eline Oil
Fields Services, Inc. (19821, 200 Mont. 205, 650 P.Zd 772.
We conclude that defense counsel's performance was not
deficient because of his failure to object or request an admonish-
13
merit or an in camera hearing. Therefore the first prong of the
Strickland test is not satisfied.
B. Defense counsel failed to request a jury
instruction on Bruce's right to rely on appearances when
asserting the defense of justifiable use of force.
While the defense requested and received an instruction on
justifiable use of force, Bruce argues on appeal that his counsel
should have requested an additional instruction concerning his
right to rely on appearances. Bruce claims that the jury should
have been instructed that he had the right to reasonably rely on
the appearances presented to him at the time of the incident
regardless of the actual danger. He maintains that trial counsel's
failure to request such a jury instruction constitutes ineffective
assistance of counsel
Jury instructions are generally considered to be within the
province of an attorney's trial tactics or strategies. State v.
Bradley (1993), 262 Mont. 194, 199, 864 P.Zd 787, 790. In
reviewing a counsel's performance, we will not second guess a
calculated trial tactic. Bradley, 864 P.Zd at 790. Further, while
each party is entitled to instructions supported by the evidence,
jurors need not be instructed on every nuance of an issue. In
State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, this Court
stated:
In examining self-defense instructions this Court has
repeatedly stated several principles which govern the
review of challenged instructions. The instructions must
be viewed as a whole to determine if they have limited
the defense from fairly presenting his theory of defense.
The District Court need not qive repetitious instructions
nor instruct on every nuance of a theory of defense.
[Emphasis added. 1
14
Graves, 622 P.2d at 210. A review of the instructions in the
present case reveals that the jury was sufficiently instructed on
the defense of justifiable use of force
The following instructions were given to the jury following
trial--Instruction No. 19 reads:
A person is justified in the use of force or threat
to use force when and to the extent that he reasonably
believes that such conduct is necessary to defend himself
against the imminent use of unlawful force.
However, a person is justified in the use of force
which is intended or 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.
Instruction No. 21 reads in part:
You are to consider the following requirements of
the law in determining whether the use of force claimed
by defendant was justified:
(1) The defendant must not be the aggressor;
(2) The danger of harm to the defendant must be a
present one and not made by a person without the present
ability to carry out the threat;
(3) The force threatened against the defendant must
be unlawful;
(4) The defendant must actually believe that the
danqer 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) The defendant's belief, in each of the asoects
described, is reasonable even if it is mistaken.
You are further advised that even if you determine
that 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. [Emphasis
added. 1
This Court has previously determined that self-defense instructions
such as these, which are derived from the statutory language, are
15
sufficient to convey the fact that the defendant may rely on the
appearances present at the time of the incident. State v. Reiner
(1978), 179 Mont. 239, 251, 587 P.2d 950, 957.
We conclude that the jury was sufficiently instructed on the
defense of justifiable use of force. We therefore hold that
Bruce's defense counsel's performance was not deficient and thus
the first prong of the Strickland test has not been satisfied.
C . Defense counsel failed to request an instruction
on negligent homicide as a lesser offense.
Bruce argues that the evidence supported offering an instruc-
tion on the lesser offense of negligent homicide. Bruce claims
that his trial counsel's failure to request an instruction on
negligent homicide amounts to ineffective assistance of counsel.
As previously stated, offering jury instructions is generally
considered to be a discretionary trial tactic. Bradley, 864 P.2d
at 790. At trial, the jury was instructed on the elements of
deliberate homicide and mitigated deliberate homicide as well as
the defense of justifiable use of force. Bruce's trial counsel did
not request instructions on negligent homicide.
Under the circumstances, not requesting an instruction on
negligent homicide can easily be viewed as a legitimate trial
tactic. Arguing negligent homicide at trial may have jeopardized
defense counsel's contention that Bruce acted knowingly in self-
defense. While not deciding that a negligent homicide instruction
is inconsistent with the defendant's case, it was a reasonable
tactic to avoid arguing negligent homicide in fear of undermining
Bruce's self-defense claim.
16
Because we conclude that defense counsel's failure to request
instructions on negligent homicide falls under the realm of
counsel's trial tactics, we hold that defense counsel's performance
was not deficient and thus the first prong of the Strickland test
is not satisfied.
D. Defense counsel failed to call a witness whose
testimony
tended to impeach the credibility and accuracy
of Reece Cobeen's testimony.
Bruce argues that a witness who spoke with Reece Cobeen after
the shooting incident was available and willing to testify. This
witness would presumably testify that Cobeen told him that he was
standing at his pickup, not at the bottom of the stairs, when the
shooting occurred. Bruce maintains that this witness would have
discredited Cobeen's testimony and thus would have raised a
reasonable doubt in the minds of the jury.
Defense counsel admits that he negligently failed to get the
witness on the stand. The State concedes that the failure of
defense counsel to call this witness rendered counsel's performance
deficient, thus satisfying the first prong of the Strickland test.
However, the State maintains that Bruce has failed to establish
that his counsel's deficient performance was so prejudicial that he
was denied a fair trial.
For the purpose of this appeal, we will assume without
deciding that defense counsel's failure to call a relevant witness
resulted in deficient representation. We therefore proceed to the
second prong of the Strickland test which addresses, "whether a
reasonable probability exists that but for counsel's deficient
17
performance, the trial's outcome would have been different." state
v. Sheppard (Mont. 1995), 890 P.2d 754, 757, 52 St.Rep. 106, 108.
Cobeen's location in relationship to the front porch, while
relevant to this case, is not dispositive. A review of the record
reveals, absent Cobeen's testimony in its entirety, substantial
evidence to support the jury's verdict.
Bruce admits shooting Jim and Alice. Bruce's wife Gabby
testified that Jim and Alice were her guests and that she had
invited them into the Hagen residence. Jim and Alice were both
unarmed at the time of the incident. Jim testified that Bruce
called his name prior to shooting him. Bruce testified that after
shooting Jim, he turned and shot Alice without regard at whom he
was firing. The testimony of the defendant Bruce Hagen, his wife
Gabby, and the victim Jim Enger established substantial evidence to
uphold the verdicts of deliberate homicide and aggravated assault.
We conclude that no reasonable probability exists that but for
defense counsel's deficient performance, the result of the trial
would have been different. Based on the discussion above, we hold
that Bruce was not denied effective assistance of counsel.
We affirm the decision of the District Court.
i Chief Justice
18
We concur:
19