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No. 99-470
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 156
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BRYAN LEE GERMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Gary Day, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Attorney at Law, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jim Wheelis, Assistant
Attorney General, Helena, Montana
Colleen I. Magera, Custer County Attorney, Miles City, Montana
Submitted on Briefs: November 30, 2000
Decided: August 14, 2001
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Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Bryan Lee German appeals from the judgment entered against him by the Sixteenth
Judicial District Court, Custer County, on a jury verdict finding him guilty of attempted
felony assault and deliberate homicide. We affirm.
¶2 The issue is whether the District Court abused its discretion in refusing to instruct the
jury on the lesser-included offense of negligent homicide.
¶3 Early on the morning of June 12, 1998, Willie Gonzales followed German home from
work after both young men got off their night shift jobs at the Wal-Mart store in Miles
City, Montana. German parked his car outside the trailer where he lived with his common
law wife and infant son. Gonzales stopped his car behind German's car. German then went
into the trailer, grabbed his sawed-off shotgun, and went back outside. Walking up to the
driver's side of Gonzales' car, he shot Gonzales twice at close range. German returned to
the trailer, called 911 on the telephone and reported that he had shot someone. The 911
operator could hear German's wife in the background crying and asking, "Why, Bryan,
why?"
¶4 When Miles City police officers arrived, they found German outside the trailer waiting
for them, as the 911 operator had instructed. Gonzales was slumped over in the front seat
of his car, dead from two shotgun blasts to the chest.
¶5 As a result of these events, the State of Montana filed a 3-count information against
German. Count 1 charged German with attempted felony assault for pointing a firearm at
Gonzales, and Count 2 charged deliberate homicide under the felony murder rule on the
basis that German killed Gonzales during the attempted commission of a felony assault.
Count 3, an alternative deliberate homicide charge, alleged that German purposely or
knowingly killed Gonzales with a firearm.
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¶6 German's defense at trial was that he was frightened of Gonzales and shot him only out
of fear for himself and his family. A dispute had simmered between the two for several
months, since Gonzales gave German $200 to get him some marijuana and the substance
German delivered was not, in fact, marijuana. After that time, Gonzales had periodically
demanded his money back from German. German did not return the money, telling
Gonzales he had been a mere intermediary in the deal and did not have the money to
return to Gonzales.
¶7 At trial, the District Court instructed the jury on German's defense of justifiable use of
force. The court also gave a mitigated deliberate homicide instruction proposed by the
defense as a lesser-included offense under Count 3. However, the court refused German's
proposed instruction on the lesser-included offense of negligent homicide, ruling there was
no evidence to support the instruction.
¶8 The jury found German guilty of attempted felony assault under Count 1 and deliberate
homicide under Count 2, the felony murder rule. The District Court sentenced German to
10 years in prison on Count 1 and 75 years in prison on Count 2, to run concurrently, and
entered judgment. German appeals.
¶9 Did the District Court abuse its discretion in refusing to instruct the jury on the lesser-
included offense of negligent homicide?
¶10 This Court reviews jury instructions in a criminal case to determine whether the
instructions, as a whole, fully and fairly instruct the jury on the applicable law. State v.
Hall, 1999 MT 297, ¶ 39; 297 Mont. 111, ¶ 39; 991 P.2d 929, ¶ 39 (citation omitted).
District courts have broad discretion in formulating jury instructions and our standard of
review is whether the court abused that discretion. State v. Beavers, 1999 MT 260, ¶ 20,
296 Mont. 340, ¶ 20, 987 P.2d 371, ¶ 20 (citations omitted). A trial court has authority to
reject proposed instructions which are not supported by the evidence. Whether there is
sufficient evidence to raise an issue of fact is a question of law for the court and not one of
fact. Fed. Land Bank of Spokane v. Snider (1991), 247 Mont. 508, 513, 808 P.2d 475, 478
(citations omitted).
¶11 A lesser-included offense instruction must be given when properly requested and
when, based on the evidence, the jury could be warranted in finding the defendant guilty
of the lesser-included offense. Section 46-16-607(2), MCA. However, a trial court need
not give an instruction on a lesser-included offense when there is no evidence to support it.
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State v. Swan (1996), 279 Mont. 483, 488, 928 P.2d 933, 936 (citation omitted). A lesser-
included offense instruction is not supported by the evidence when the defendant's
evidence or theory, if believed, would require an acquittal. State v. Martinez, 1998 MT
265, ¶ 10, 291 Mont. 306, ¶ 10, 968 P.2d 705, ¶ 10.
¶12 In the present case, German requested a lesser-included offense instruction on
negligent homicide. He proposed the jury be instructed that "[a] person commits the
offense of negligent homicide if he negligently causes the death of a human being." The
parties do not address whether negligent homicide is a lesser-included offense of
deliberate homicide under §§ 46-16-607(1) and 46-1-202(8), MCA. Nor need we address
that question, because we conclude no evidence supports the requested instruction.
¶13 German testified on his own behalf at trial. During cross-examination, he described
his mental state when he shot Gonzales:
Q. Well, I guess the question here is: Did you accidentally shoot Willie Gonzales
twice or did you consciously shoot him while defending yourself?
A. I guess you would have to say if you were reacting to stimulus that you are
consciously making a decision.
Q. Yes or no? Do you know? Can you answer it?
A: I would have to say, yes. I was consciously making the decision, I guess.
Q: Nothing negligent and reckless about what you did? You made a call, right?
A: Yes. At the time that I did it.
The above testimony clearly does not support a negligent homicide instruction. German's
testimony was that he consciously made a decision to shoot Gonzales.
¶14 German also presented evidence at trial about the prevalent drug culture in Lakewood,
Washington, where he spent his formative years. He asserts he should have been entitled
to argue, based on that evidence, that he was merely negligent in placing himself into a
volatile situation with Gonzales and shooting him. He also asserts he should have been
entitled to argue that his actions due to his fears for himself and his family were so
unreasonable as to constitute, in themselves, negligence.
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¶15 The State contends this is a new argument on appeal. However, the record establishes
that German raised it below. During the settling of jury instructions, German's counsel
said:
On that vein, Your Honor, I should have put it in before, I do believe there is
evidence to support the Negligent Homicide Instruction. And that evidence,
essentially, once again, is the same evidence that my client's fear, his apprehension
of harm to himself or his family, his concern that there was a firearm in [Gonzales']
vehicle, his acting upon that fear, placing himself in a volatile situation with a
firearm and death resulted.
Therefore, we reject the State's argument and turn to German's assertion of error.
¶16 In support of his theory that the evidence of the drug culture in which he spent his
formative years supports his proposed instruction on negligent homicide, German relies on
State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459, and State v. Hubbard (1982), 200
Mont. 106, 649 P.2d 1331, in which he says we gave some "consideration" to the theory
he advances here. German's reliance on Stroud and Hubbard is misplaced.
¶17 A jury acquitted the defendant in Stroud of deliberate homicide and mitigated
deliberate homicide, but convicted him of negligent homicide under an instruction he
submitted. This Court affirmed the negligent homicide conviction. German points out that
the prosecution in the present case has referred to his actions as "not reasonable," similar
to our characterization of the defendant's actions in Stroud. However, the jury in Stroud
was instructed on negligent homicide because there was evidence that Stroud did not
deliberately shoot the victim. According to that evidence, the gun went off during a
struggle. Stroud, 210 Mont. at 65, 683 P.2d at 463. In the present case, the evidence is that
German consciously decided to shoot Gonzales. There is simply no evidence here to
support the giving of a negligent homicide instruction.
¶18 In Hubbard, the defendant pled guilty to negligent homicide after an early morning
shootout in which two men were killed. The issues on appeal related to the propriety of
applying the weapon enhancement statute to increase the sentence for use of a weapon.
German quotes our statement in Hubbard, 200 Mont. at 112, 683 P.2d at 1334, that "[a]
person can knowingly use a firearm and still be negligent by grossly deviating from the
conduct of a reasonable person in a similar situation with regard to the results of his
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actions." The statement is correct, but German has taken it out of the Hubbard context
where the original charge--and the charge to which the defendant pled guilty--was
negligent homicide. Hubbard, 210 Mont. at 108, 683 P.2d at 1332. Unlike the present
case, Hubbard did not present a lesser-included offense instruction issue focusing on
whether evidence supported giving such an instruction. Also unlike the present case,
Hubbard did not involve testimony by the defendant that he consciously made a decision
to shoot the victim.
¶19 Finally, German contends that Martinez effectively overruled Stroud, Hubbard and a
"long line" of cases which entitle a defendant to a lesser-included offense instruction and
allows district courts to usurp the jury's function. We disagree.
¶20 In Martinez, the victim testified that the defendant--a "friend" of his--shot at another
fellow and then pointed a gun at him during a shootout. Martinez, ¶ 11. This testimony
supported a felony assault charge against the defendant. The defense established
inconsistencies in the victim's testimony, argued that the defendant's use of force was
justifiable, and offered a lesser-included offense instruction on misdemeanor assault. The
district court refused the instruction and we agreed. A defendant's justifiable use of force
defense precludes a lesser-included offense instruction because the defense essentially
admits the elements of the charged offense, including mental state. If proven, the defense
requires an acquittal. Martinez, ¶ 15. Applied to the present case, German's justifiable use
of force defense to the charges against him, if proven, would have required an acquittal.
¶21 Martinez neither overruled nor is inconsistent with our cases entitling a defendant to a
lesser-included offense instruction when evidence supports the instruction. Like the
present case, Martinez involved the justifiable use of force defense which admits the
elements of the charged offense but asserts the defendant's acts were justified. Moreover,
both defendants offered evidence in support of their justification defenses and the trial
courts instructed accordingly. Had the jury determined the defense was proven in either
case, the defendant would have been entitled to an acquittal. See Martinez, ¶ 10 (citations
omitted). As a matter of logic and, under Martinez, as a matter of law, a defendant's
evidence and theory which, if believed, would require an acquittal of a "greater" offense
cannot--at the same time--support a conviction on a lesser offense. See Martinez, ¶ 10
(citations omitted).
¶22 German also is incorrect in contending that Martinez allows a district court to usurp
the jury's function by factually deciding the merits of the lesser-included offense. In both
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civil and criminal proceedings, the determination of whether there is sufficient evidence to
raise an issue of fact for a jury is a question of law for a trial court. See, e.g., Fed. Land
Bank, 247 Mont. at 513, 808 P.2d at 478 (citations omitted); § 46-16-403, MCA; Swan,
279 Mont. at 488, 928 P.2d at 936 (citations omitted). Only when a trial court has
determined, as a matter of law, that factual disputes exist are such disputes turned over to a
jury to resolve.
¶23 Here, we conclude the District Court correctly determined that no evidence supported
German's offered instruction on the lesser-included offense of negligent homicide. Nor has
German established any error under the legal precedents on which he relies.
¶24 We hold, therefore, that the District Court did not abuse its discretion in refusing
German's offered instruction on the lesser-included offense of negligent homicide.
¶25 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM REGNIER
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