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No. 98-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 204
295 Mont. 457
984 P.2d 157
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JODY LYNN LONGSTRETH,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable John Christensen, Judge presiding.
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COUNSEL OF RECORD:
For Appellant:
Brian P. Fay, Angel Law Firm; Bozeman, Montana
Jennifer Wendt Bordy, Attorney at Law; Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; John Paulson,
Assistant Attorney General; Helena, Montana
Marty Lambert, Gallatin County Attorney; Todd Whipple,
Deputy County Attorney; Bozeman, Montana
For Amicus:
Scott Albers, Attorney at Law; Great Falls, Montana
Submitted on Briefs: May 27, 1999
Decided: August 31, 1999
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Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
q ¶Jody Lynn Longstreth was charged by information in the Eighteenth Judicial
District, Gallatin County, with deliberate homicide for stabbing her boyfriend
during an argument and causing his death. During a jury trial, she relied on the
affirmative defense of justifiable use of force. However, on March 5, 1998, the jury
convicted her of the lesser-included offense of negligent homicide. She appeals
from several of the court's rulings. We affirm.
q ¶The following issues are raised in this appeal:
q ¶1. Did the District Court's instructions on justifiable use of force deny Longstreth
her right to due process?
q ¶2. Did the District Court err when it denied Longstreth's motion for a directed
verdict?
FACTUAL BACKGROUND
r ¶On December 19, 1997, Longstreth was charged by information with the
crime of deliberate homicide, in violation of § 45-5-102, MCA. The State
alleged that she killed Johnny Lee Tudor on December 14, 1997, by stabbing
him with a knife.
r ¶Longstreth and Tudor were living together for approximately two years,
during which time Tudor was twice convicted of partner assault as a result of
physically abusing Longstreth. The abuse followed a general pattern in which
Tudor would assault Longstreth physically after he became intoxicated. The
evidence established that Longstreth suffered physical injuries on several
occasions. As a result, Longstreth would temporarily move in with friends,
but always return to live with Tudor.
r ¶On the evening of the stabbing, Longstreth and Tudor were arguing at a bar.
Tudor was intoxicated. At about 8:30 p.m., they left the bar together;
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however, Tudor proceeded to another bar while Longstreth drove home to the
trailer where they lived. At home, Longstreth made herself a rum-and-coke
and watched a movie. She testified that she kept her boots on and her keys in
her pocket in case Tudor caused a problem when he came home. Tudor
arrived home by taxi between 9:15 and 9:30 p.m., and immediately went to
bed. Approximately 15 minutes later, Longstreth looked into the bedroom,
saw Tudor lying on the bed, and returned to the living room. Ten minutes
later, Tudor came into the living room, began screaming at Longstreth and
threw couch cushions at her. Then, he went back to bed. Longstreth sat down
at the kitchen table to work on a crossword puzzle. While she was sitting
there, Tudor allegedly came into the kitchen and hit her. According to
Longstreth, she tried to escape from the kitchen but Tudor blocked her. She
testified that out of fear she grabbed a butcher knife and held it out at arm's
length. She thought that by seeing the knife Tudor would back off. Instead,
she testified, Tudor came forward and walked into the knife. Longstreth
further testified that Tudor then backed off, turned toward the living room, fell
down, got back up, walked toward her again, then turned toward the phone.
Longstreth said she assumed Tudor would call for help.
r ¶After she wiped off the knife, she took it with her and she left the trailer and
drove to a bar where she contacted an acquaintance. The acquaintance drove
her to his residence.
r ¶At the acquaintance's residence, Longstreth made several telephone calls,
including two to the Bozeman police in which she used the name "Sarah
Parker." In her first call, which she made at 11:38 p.m., she reported a
domestic disturbance at the trailer, but she did not identify the trailer as theirs.
In her second call, she asked the police if everything was okay at the trailer.
She did not request medical assistance for Tudor in either call.
r ¶Two police officers were dispatched to the trailer, where they found Tudor
dead on the floor wearing only underwear with a stab wound to his chest. The
knife entered Tudor just below his left clavicle to a depth of five inches and
severed the subclavian vein. There was evidence in the trailer that a struggle
had taken place.
r ¶There was conflicting testimony as to Longstreth's condition. The testimony
was inconsistent as to whether Longstreth showed signs of injury. The
testimony suggested, however, that Longstreth did not appear intoxicated and
when she was given a breath analysis test at 6:43 a.m., she had a blood
alcohol concentration of .000. Longstreth told the police that she did not
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intend to kill Tudor.
r ¶On January 20, 1998, Longstreth filed notice of her intention to rely upon the
affirmative defense of justifiable use of force. On March 5, 1998, after a four-
day jury trial, Longstreth was found guilty of the lesser-included offense of
negligent homicide.
r ¶The District Court committed Longstreth to the Montana Department of
Corrections for a term of five years, subject to suspension on the condition
that Longstreth apply and be accepted for admission to the Department's
prerelease diversion program. Longstreth also was sentenced to a consecutive
term of two years for the use of a weapon, which was suspended. Longstreth
was released on bail on June 2, 1998, pending her appeal.
r ¶Longstreth rests her appeal on the District Court's instructions regarding her
defense of justifiable use of force. Also, Longstreth appeals the District
Court's denial of her motion for a directed verdict.
STANDARD OF REVIEW
s ¶If the district court's jury instructions, reviewed as a whole, fully and
fairly present the law to the jury, then the jury has been properly
instructed. See State v. Stone (1994), 266 Mont. 345, 349, 880 P.2d
1296, 1299. The test to be applied is whether, when an instruction is
considered as a part of the whole body of instructions, the instruction is
prejudicial to the appealing party. See Stone, 266 Mont. at 350, 880
P.2d at 1299 (citing State v. Graves (1981), 191 Mont. 81, 96, 622 P.2d
203, 211-12).
s ¶We review the district court's denial of a motion for a directed verdict
to determine whether the district court abused its discretion. See State v.
Berger, 1998 MT 170,¶ 25, 298 Mont. 78, ¶ 25, 964 P.2d 725, ¶ 25;
State v. Miller, 1998 MT 177, ¶ 21, 290 Mont. 97, ¶ 21, 966 P.2d 721,
¶ 21. A directed verdict of acquittal is appropriate only when no
evidence exists to support a guilty verdict. See State v. Clay, 1998 MT
244, ¶ 29, 967 P.2d 370, ¶ 29. We find no abuse of discretion if, after
viewing the evidence in a light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. See Berger, ¶ 25; Miller, ¶ 21.
ISSUE 1
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s ¶Did the District Court's instructions on justifiable use of force
deny Longstreth her right to due process?
s ¶After instructing the jury on the statutory elements of deliberate,
mitigated, and negligent homicide, the District Court further
instructed the jury on Longstreth's defense of justifiable use of
force. Longstreth challenges several of these instructions,
essentially arguing that the instructions improperly allocate the
burden of proof.
s ¶She focuses on Instruction Nos. 18 and 19, in particular.
Instruction No. 18, offered as State's Proposed Instruction No. 9,
provided:
The defendant has the burden of producing sufficient evidence of
justification in the use of force to raise a reasonable doubt of her
guilt. 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 of 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 danger exists,
that is, use
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of force by her is necessary to avert the danger and that the kind
and
amount of force which defendant uses is necessary; and
(5) The 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. 19, offered as State's Proposed Instruction No. 8,
provided:
The defense of justifiable use of force is an affirmative defense
and the defendant has the burden of producing sufficient evidence
on the issue to raise a reasonable doubt of her guilt.
If you find that she was justified in the use of force, you must find
her not guilty.
s ¶At the settlement of instructions, Longstreth objected to
these instructions contending that they were prejudicial,
illogical and that they prevented her from fairly presenting
her theory of the case because they failed to properly
allocate the burden on the State to prove an absence of
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justification beyond a reasonable doubt. Although
Longstreth does not contest her own burden of producing
sufficient evidence to support a finding of justification, she
contends that the State should have the burden to prove that
a justifiable use of force did not exist. Longstreth contends
that in the absence of the State's burden, she was denied her
right to due process of law.
s ¶The State first argues that Longstreth failed to object to
both instructions. Our review of the transcript, however,
discloses that, although somewhat confusing, the defendant
sufficiently objected to the instructions. Thus, we conclude
that Longstreth has sufficiently preserved this issue for
appeal.
s ¶The State next contends on a substantive basis that
Longstreth's burden of proof argument lacks any support
under Montana case law. Indeed, this Court has
consistently stated over the years that justifiable use of
force is an affirmative defense and that only the defendant
has the burden of producing sufficient evidence to raise a
reasonable doubt of her guilt. See, e.g., Miller, ¶ 5; State v.
Daniels (1984), 210 Mont. 1, 16, 682 P.2d 173, 181;
Graves, 191 Mont. at 92-93, 622 P.2d at 210; State v.
Cooper (1979), 180 Mont. 68, 72-73, 589 P.2d 133, 136;
State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681,
684. In Daniels, 210 Mont. at 15-16, 682 P.2d at 181, we
held that as an affirmative defense, justifiable use of force
requires the defendant to produce sufficient evidence on the
issue to raise a reasonable doubt of his guilt and that the
State's burden is to prove beyond a reasonable doubt the
elements of the offense charged, which does not include the
absence of justification.
s ¶Longstreth cites State v. Azure (1979), 181 Mont. 47, 591
P.2d 1125, and Graves, and argues that our cases have
confused this issue. In Azure, 181 Mont. at 54, 591 P.2d at
1130, we stated the jury should be instructed that the State
must prove the absence of justification beyond a reasonable
doubt; however, we sustained the refusal of an instruction
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to that effect because other instructions had covered the
subject. Subsequently in Graves, 191 Mont. at 92-93, 622
P.2d at 210, this Court referred to the statement made in
Azure without disavowing it, but also recognized that
justifiable use of force is an affirmative defense rather than
an element of deliberate homicide.
s ¶We addressed both of these cases in our opinion in
Daniels and clarified any uncertainties they may have
caused. More recently in Miller, ¶ 23, we reiterated that
although the State retains the burden of proving the
underlying offense beyond a reasonable doubt, the
defendant who raises justifiable use of force assumes the
burden of producing sufficient evidence on the issues to
raise a reasonable doubt of his guilt. Although Longstreth
and amicus urge us to revisit the propriety of our prior case
law in regard to affirmative defenses and the relative
burdens of the state and the defendant, we are not inclined
to do so at this time. We conclude that the District Court
committed no error in its use of Instructions Nos. 18 and 19.
s ¶Closely related to Longstreth's objections to Instructions
Nos. 18 and 19 is her objection to Instruction No. 14(a).
Instruction No. 14(a) provided:
In a deliberate homicide, knowledge or purpose may be
inferred from the fact that the accused committed a
homicide and no circumstances of mitigation, excuse or
justification appear.
The authority for this instruction is § 45-5-112, MCA.
Longstreth asserts that by allowing the jury to make an
inference as to her mental state as a result of her own
failure to produce sufficient evidence to establish a
justification, and without an instruction that the State had
the burden to prove an absence of justification, Instruction
No. 14(a) impermissibly shifted the burden of proving an
essential element of the crime charged to her. She relies on
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two United States Supreme Court cases for the proposition
that the burden of proof may not shift to the defendant by
allowing the jury to presume or infer the presence of one
element based simply upon proof of another. See Francis v.
Franklin (1985), 471 U.S. 307, 105 S. Ct. 1965, 85 L. Ed.
2d 344; Patterson v. New York (1977), 432 U.S. 197, 97 S.
Ct. 2319, 53 L. Ed. 2d 281. She also relies on State v.
Woods (1983), 203 Mont. 401, 414, 662 P.2d 579, 585,
where we recognized that in determining the effect of an
instruction, the appropriate question is whether that
instruction has the effect of allocating to the defendant
some part of the burden of proof that properly rests on the
State throughout the trial. To remedy the alleged burden of
proof problem prompted by Instruction No. 14(a),
Longstreth again suggests that the District Court should
have instructed the jury that the State has the burden to
prove the absence of justification.
s ¶In State v. Coleman (1979), 185 Mont. 299, 394,
605 P.2d 1000, 1052, cert. denied, 446 U.S. 970, 100
S. Ct. 2952, 64 L. Ed. 2d 831 (1980), reh'g denied,
448 U.S. 914, 101 S. Ct. 34, 65 L. Ed. 2d 1177
(1980), we pointed out that § 45-5-112, MCA, allows
for a permissive inference by the jury rather than a
mandatory inference. We stated that the critical
question is whether the permitted inference, when
read with the other instructions in the case, relieves
the State of its burden of proof to convict the accused
beyond a reasonable doubt. See Coleman, 185 Mont.
at 394, 605 P.2d at 1052. Just as in Coleman, the
District Court here instructed the jury that the State
had the burden of proving the guilt of the defendant
on the charge beyond a reasonable doubt and that the
defendant was presumed innocent until otherwise
proven guilty. Our review of the instructions when
considered in their entirety did not effectively relieve
the State of its obligation to prove every element of
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the offense charged.
s ¶We have repeatedly followed the rationale of
Coleman in cases such as Woods, 203 Mont. at 412-
15, 662 P.2d at 585-86; State v. Gratzer (1984), 209
Mont. 308, 317, 682 P.2d 141, 145-46; and State v.
Moore (1994), 268 Mont. 20, 64, 885 P.2d 457, 484-
85. In Gratzer, 209 Mont. at 317, 682 P.2d at 145-46,
a mitigated homicide case, we specifically stated that
"to require the State in a deliberate homicide case to
negate mitigation beyond a reasonable doubt before
the jury may infer purpose or knowledge" was not
necessary. In our view, this statement applies equally
to the State's burden on the issue of justification.
s ¶We have previously stated that a defendant's burden
of presenting evidence of justifiable use of force as
an affirmative defense does not unconstitutionally
place a burden of proof upon the defendant. See State
v. Warnick (1982), 202 Mont. 120, 130, 656 P.2d
190, 195. In State v. Lopez (1980), 185 Mont. 187,
195-96, 605 P.2d 178, 183, we recognized the
following language written by the United States
Supreme Court:
[T]he long-accepted rule was that it was
constitutionally permissible to provide that various
affirmative defenses were to be proved by the
defendant. This did not lead to such abuses or to such
widespread redefinition of crime and reduction of the
prosecution's burden that a new constitutional rule
was required . . . . Nor does the fact that a majority of
the States have now assumed the burden of
disproving affirmative defenses for whatever reasons
mean that those States that strike a different balance
are in violation of the Constitution. Patterson, 432 U.
S. at 211, 97 S. Ct. at 2327, 53 L. Ed. d at 292-93.
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We also recognized the language in Leland v. Oregon
(1952), 343 U.S. 790, 794-96, 72 S. Ct. 1002, 1006,
96 L. Ed. 1302, 1306-1307, in which the United
States Supreme Court upheld the defendant's burden
in regard to an affirmative defense so long as the
instructions given to the jury made it clear that the
burden of proof of guilt, and all the necessary
elements of guilt, were placed squarely on the State.
s ¶ In the final analysis, we conclude that the
jury was properly instructed on the law of
justifiable use of force, and that Longstreth was
not denied her right to due process.
ISSUE 2
s ¶Did the District Court err when it
denied Longstreth's motion for a directed
verdict?
s ¶At the close of the State's case,
Longstreth moved for a directed verdict,
arguing that the State failed to prove the
necessary elements of deliberate
homicide, which was the only crime for
which she was charged. Longstreth
asserts that the State failed to introduce
evidence necessary to establish that she
possessed the mental state of purpose or
knowledge to cause the death of another.
s ¶In support of her argument, Longstreth
again cites to § 45-5-112, MCA.
Longstreth argues that the State was
required to prove its case
circumstantially through the inference
allowed by § 45-5-112, MCA, which
provides that, in a deliberate homicide
case, an accused's mental state can be
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inferred only when there is no evidence
of mitigation, excuse, or justification.
Since the State's case-in-chief
established proof of the abuse Longstreth
suffered, the danger she faced, and her
justification for killing Tudor, Longstreth
argues that her mental state could not
have been inferred and that the jury
should not have been able to consider
any of the other circumstantial evidence
presented.
s ¶The State responds that although the
evidence it presented could have
supported Longstreth's justification
defense, § 45-5-112, MCA, does not
preclude the jury from considering other
circumstantial evidence that bears on the
issue of Longstreth's mental state. In
support of its argument, the State cites §
45-2-103(3), MCA, which allows a jury
to infer the existence of a mental state
from the acts of the accused and the facts
and circumstances connected with the
offense. The State argues that § 45-5-
112, MCA, does not render § 45-2-103
(3), MCA, inoperative.
s ¶Section 45-5-112, MCA, permits the
jury in a deliberate homicide case to
infer a defendant's mental state so long
as two conditions are met: (1) the
accused committed a homicide; and (2)
no circumstances of mitigation, excuse,
or justification appear. There is nothing
in § 45-5-112, MCA, however, which
suggests that knowledge or purpose may
be inferred only in the absence of
evidence of justification. Furthermore,
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we have held that the ultimate
determination of mental state is left to
the finder of fact. See Moore, 268 Mont.
at 64, 885 P.2d at 484. As we previously
have stated, "criminal intent, being a
state of mind, is rarely susceptible of
direct or positive proof and therefore
must usually be inferred from the facts
testified to by witnesses and the
circumstances as developed by the
evidence." State v. Ortega (1984), 209
Mont. 285, 289, 679 P.2d 793, 795
(citation omitted).
s ¶We conclude that all the evidence the
State presented, both direct and
circumstantial, was properly considered
by the jury. Therefore, the District Court
did not err when it denied Longstreth's
motion for a directed verdict.
s ¶Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
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