State v. Courville

No. 00-800

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 330

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MATTHEW CALVIN COURVILLE,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Milton Datsopoulos, Datsopoulos, MacDonald & Lind, Missoula, Montana

For Respondent:

Mike McGrath, Montana Attorney General, John Paulson, Assistant Montana
Attorney General, Helena, Montana; Robert J. Long, Lake County Attorney,
Polson, Montana

Submitted on Briefs: September 20, 2001

Decided: December 20, 2002
Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Appellant Matthew Courville (Courville), appeals an order of the Twentieth Judicial District

Court, Lake County, denying his motion to suppress and motion for a new trial. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court properly deny Courville’s motion to suppress evidence?

¶4 2. Did the District Court properly instruct the jury regarding the statutory prohibition against
the use of force to resist arrest?

¶5 We do not address the final issue presented by Courville, whether his sentence enhancement

under § 46-18-221, MCA, for use of a weapon is valid under Apprendi v. New Jersey (2000), 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, because he failed to preserve this issue for appeal. The

general rule is that issues not raised before the trial court and new legal theories are not considered

by this Court on appeal because it is unfair to fault the trial court on an issue it was never given an

opportunity to consider. Unified Indus., Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15,

961 P.2d 100, ¶ 15 (citing Day v. Payne (1996), 280 Mont. 273, 276, 929 P.2d 864, 866). While

Courville claims he preserved this issue for appeal because he mentioned due process concerns with

the sentence enhancement under § 46-18-221, MCA, we do not agree that these general assertions to

the trial court without any argument analyzing his assertions in the context of Apprendi--indeed, he

did not even cite to this case--were sufficient to preserve this issue for appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts

¶6 On or about September 10 and 11, 1999, Lake County Deputy Sheriff Larry Kirby (Kirby)

was patrolling in the southern portion of Lake County, west of Ronan near Sloan’s Bridge. Kirby

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decided to patrol this area because earlier in the evening, he overheard a dispatch to officers in

Ronan reporting possible underage drinking in the area. While he was checking out an abandoned

vehicle, Kirby received and responded to a call for assistance from Flathead Tribal Officer Orsino

Walker (Walker). Walker was also in the area and had come across possible a drinking party.

Individuals at that party informed Kirby that people in two trucks that left when Walker initially

approached had possibly been drinking and were of questionable age.

¶7 Walker and Kirby decided to continue patrolling and split up in order to cover a larger area.

After encountering rough road, Walker turned around and the two decided to meet again near the

bridge. As Kirby approached the bridge, two trucks pulled onto the road from a side road and

proceeded in front of him. Walker was approaching from the opposite direction. When he saw the

trucks, Walker activated his overhead lights, but the trucks failed to stop. A pursuit ensued in which

Walker and Kirby followed the two trucks.

¶8 One truck, the one driven by Courville, pulled off the main road onto a river access road.

Kirby followed Courville’s vehicle while Walker continued to pursue the truck on the main road.

Courville eventually stopped his truck and his passenger, Garrett Finley (Finley), bailed out of the

truck and took off running, later testifying that he did not want to be arrested.

¶9 Kirby saw Finley run off and then saw the driver’s side door of Courville’s vehicle open but

no one got out. Kirby drew his gun and approached the truck. Courville was sitting in the driver’s

seat, staring ahead with his hands on the steering wheel. Kirby identified himself and Courville

eventually released the steering wheel and allowed Kirby to remove him from the truck. Kirby had

Courville face the truck and put his hands on top of the truck. Kirby then pushed Courville’s legs

apart to put him in a wider stance.

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¶10 As Kirby was putting his gun back into his holster in order to get handcuffs for Courville, the

two somehow ended up on the ground with Courville on top. Courville struck Kirby in the face a

number of times. Courville jerked Kirby’s gun away from him and hit him in face with it. Courville

then got off Kirby, threw the gun into the back of his truck and attempted to leave. Kirby got to his

feet and was able to retrieve the gun. He attempted to stop Courville but was unable to and

Courville fled the scene.

¶11 Later examination revealed that Courville had struck Kirby’s head in seven places, damaging

his left eye and causing some loss of vision. Courville shattered the bones in Kirby’s nose requiring

surgical reconstruction. In addition, Kirby lost four teeth, broke a leg bone, fractured ribs, and

required a number of stitches, among other injuries. Much of the incident was recorded by the video

camera on the front of Kirby’s patrol car. Courville was arrested a few hours later and admitted he

struck Kirby with Kirby’s gun.

B. The Procedural History

¶12 As a result of this incident, Courville was charged with two counts of felony assault on a

police officer, felony criminal endangerment, misdemeanor reckless driving, and misdemeanor

resisting arrest. Courville pled guilty to the two misdemeanors. He then made a motion to dismiss

the remaining charges on grounds of double jeopardy. Both the District Court and this Court, on

Courville’s petition for a writ of supervisory control, denied Courville’s motion. Courville also

made a motion to suppress, asserting that all the evidence that served as grounds for the charges

against him should be suppressed under the exclusionary rule because Kirby did not have

particularized suspicion to stop him in the first place. Based on this motion, Courville asserted that

all the charges against him should be dismissed. The District Court denied the motion, holding that

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Kirby had particularized suspicion.

¶13 The felony charges were then submitted to a jury trial. The jury returned a verdict of guilty

on one count of felony assault on a police officer in violation of § 45-5-210(1)(d), MCA, and found

Courville not guilty on the other two counts. Following trial, Courville renewed his motion to

suppress. He also filed a motion for a new trial arguing that the trial court erred by instructing the

jury on the prohibition against the use of force to resist arrest by a peace officer. The District Court

ruled against Courville on both issues and sentenced him to a term of twenty years, eight suspended,

for the assault. The court also sentenced Courville to a consecutive term of ten years, with six

suspended, based on his use of Kirby’s gun in the commission of the offense. Courville now

appeals.

II. STANDARD OF REVIEW

¶14 We review a district court’s denial of a motion to suppress evidence to determine whether the

court’s findings of fact are clearly erroneous and whether those findings are correctly applied as a

matter of law. State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, ¶ 13, 983 P.2d 916, ¶ 13.

Further, we will affirm a district court's ruling if the court reaches the correct result for the wrong

reason. State v. Parker, 1998 MT 6, ¶ 20, 287 Mont. 151, ¶ 20, 953 P.2d 692, ¶ 20.

¶15 The 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. Hall, 1999 MT

297, ¶ 39, 297 Mont. 111, ¶ 39, 991 P.2d 929, ¶ 39. A district court has broad discretion when it

instructs the jury. Hall, ¶ 39. To constitute reversible error, the jury instructions must prejudicially

affect the defendant's substantial rights. State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330,

1332.

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 III. DISCUSSION

¶16 1. Did the District Court properly deny Courville’s motion to suppress evidence?

¶17 Courville first asserts that the District Court erred in denying his motion to suppress. He

argues that all evidence of the encounter he had with Kirby is inadmissible under the exclusionary

rule because Kirby did not have particularized suspicion to pull him over for an investigatory stop in

the first place. This evidence includes the videotape of the incident, Kirby’s statements, Courville’s

statements, evidence of Kirby’s injuries, and any other evidence of the incident. Because

Courville’s conviction is based only on the events following the stop, Courville asserts that once this

evidence is suppressed, the charges against him must be dismissed.

¶18 The State counters that Kirby had particularized suspicion to investigate Courville.

Alternatively, the State asserts that even if Kirby did not have particularized suspicion, the evidence

was properly admitted because criminal conduct committed in response to a Fourth Amendment

violation is admissible. Courville argues that we cannot address this alternative position because the

State raised it for the first time on appeal. We disagree. Our review of the record shows that the

State did make this argument to the District Court in its response to Courville’s initial motion to

suppress.

¶19 While the trial court determined that Kirby did have particularized suspicion for his stop of

Courville, we agree with the State that we do not need to reach that issue because the evidence in

this case would be admissible whether the stop was supported by particularized suspicion or not.

And, as already mentioned, we will affirm a trial court when it reaches the correct result even if for

the wrong reason. Parker, ¶ 20.

¶20 It is well settled that the Fourth Amendment to the United States Constitution and Article II,

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Sections 10 and 11 of the Montana Constitution, require law enforcement officers to have

particularized suspicion to conduct an investigatory stop. See State v. Jarman, 1998 MT 277, ¶ 9,

291 Mont. 391, ¶ 9, 967 P.2d 1099, ¶ 9. In order to prevent abuse of these constitutional rights by

law enforcement officers, the courts have formulated the exclusionary rule. State v. Pipkin, 1998

MT 143, ¶ 12, 289 Mont. 240, ¶ 12, 961 P.2d 733, ¶ 12. This rule requires that if a stop is not

supported by particularized suspicion, evidence collected from that stop, also known as the “fruit of

the poisonous tree,” is inadmissible in proceedings against the accused. See Jarman, ¶ 16. Quite

simply, the exclusionary rule is used as a means to deter the state from violating its citizens'

constitutional rights. Pipkin, ¶ 12.

¶21 That said, it is also well settled that the exclusionary rule does not apply in every instance.

State v. New (1996), 276 Mont. 529, 536, 917 P.2d 919, 923. Rather, if the evidence is so attenuated

or dissipated from the government’s constitutional violation such that the evidence loses is primary

constitutional taint, then the evidence is admissible. United States v. Leon (1984), 468 U.S. 897, 104

S.Ct. 3405, 82 L.Ed.2d 677 (whether exclusion of evidence is appropriate depends on whether "the

detrimental consequences of illegal police action become so attenuated that the deterrent effect of

the exclusionary rule no longer justifies its cost."). For example, evidence loses its primary

constitutional taint and is not excluded when the same evidence is discovered from a source

independent of the constitutional violation, or where the evidence is such that it would have been

inevitably discovered. State v. Therriault, 2000 MT 286, ¶ 58, 302 Mont. 189, ¶ 58, 14 P.3d 444, ¶

58.

¶22 In this case, we consider whether Courville's criminal conduct committed after Kirby's stop

was admissible regardless of whether there was particularized suspicion for the stop in the first

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place.

¶23 We previously addressed this issue in State v. Ottwell (1989), 239 Mont. 150, 154-55, 779

P.2d 500, 502-03. In Ottwell, the defendant pointed a gun at the state officials who allegedly

improperly entered her hotel room without a search warrant. While we declined to address whether

the entry was actually a Fourth Amendment violation, we held that the evidence of the defendant

pointing a gun was admissible because the exclusionary rule does not apply to evidence of criminal

conduct committed in response to a claimed Fourth Amendment violation. We based our decision

on the policy that to allow a person whose rights to be free from unreasonable searches and seizures

were allegedly violated, to respond with unlimited violence would create intolerable results.

Ottwell, 239 Mont. at 154-55, 779 P.2d at 502-03. We also note that the deterrent effect of the

exclusionary rule would not be accomplished by excluding this type of evidence.

¶24 We see no reason to deviate from the rule we established in Ottwell. Exclusion of Courville's

criminal conduct committed in response to his claim that Kirby's stop was not based on

particularized suspicion would simply encourage violence towards law enforcement officers

attempting to do their duties in the field. Indeed, exclusion of this type of evidence may very well

deter law enforcement from acting even on particularized suspicion. No good public policy is

served by encouraging persons stopped by law enforcement to respond with violence--even where

the stop may later be determined to have not been supported by particularized suspicion. More to

the point, if an accused believes that his right to be free from unreasonable searches and seizures has

been violated by an improper investigatory stop, his remedy at law is to move to suppress the

evidence seized as a result thereof. Section 46-13-302, MCA.

¶25 Accordingly, we reaffirm Ottwell. On the facts here and without reaching the merits of

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whether Kirby's investigatory stop was supported by particularized suspicion, we conclude that the

evidence of Courville's criminal conduct committed against Kirby is so attenuated from the claimed

improper investigatory stop that the evidence of his conduct lost its primary constitutional taint--if,

indeed there ever was any--and that the evidence is, therefore, not subject to the exclusionary rule.

We hold that the District Court reached the correct result in this case by denying Courville’s motion

to suppress and admitting the evidence of his violent encounter with Kirby.

¶26 As an aside, it is also worth noting that Courville’s explanation of the encounter begs our

conclusion. Courville asserted at trial that he was acting in self defense. Such a defense requires an

interpretation of the facts, a question properly left to the jury. Had Courville submitted to Kirby’s

authority, it is likely that no violent confrontation would have followed. Courville would then have

been free to assert the claimed violation of his right to be free from unreasonable searches and

seizures and that any evidence discovered in violation of this right be suppressed. Instead, Courville

chose to violently resist Kirby following the stop. As a result, the jury was properly charged with

deciding whether Courville committed a crime or whether he acted in self defense.

¶27 2. Did the District Court properly instruct the jury regarding the statutory prohibition
against the use of force to resist arrest?

¶28 Courville next asserts that he is entitled to a new trial because the District Court erred in

giving Instruction 22 regarding the statutory prohibition on the use of force to resist arrest, in light of

his self defense theory as instructed in Instruction 21.

¶29 Regarding Courville’s theory of self defense, Instruction 21 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

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 which is intended to likely to [sic] 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.

This instruction paraphrases the statute regarding self defense, § 45-3-102, MCA (when use of force

justified in defense of the person). Instruction 22 reads:

A person is not authorized to use force to resist an arrest which he knows is being
made by a peace officer, even if he believes that the arrest is unlawful and the arrest
in fact is unlawful.

The parties also agree that Instruction 22 is a proper paraphrase of § 45-3-108, MCA, which

prohibits the use of force to resist arrest.

¶30 Courville asserts Instruction 22 was given in error for three reasons. First, he contends that

Instruction 22 should not have been given because a violation of § 45-3-108, MCA, was not being

determined at trial. Second, he asserts that Instruction 22 confused the jury because it completely

nullified his defense of self defense. Finally, he asserts that Instruction 22 and § 45-3-108, MCA,

violate his constitutional equal protection rights because the prohibition against the use of force in

resisting arrest eliminates his “liberty” right of self defense under Article II, Section 3 against police

officers.

¶31 The State counters that the District Court properly instructed the jury because Instruction 22

covered law involved in the case and even though the specific crime was not at issue, the law was

still relevant. Further, the State asserts that the jury was able to properly consider Courville’s

defense. Finally, the State asserts that Courville failed to preserve his equal protection argument and

failed show any violation of equal protection.

¶32 Addressing the State's last argument first, we disagree that Courville failed to preserve his

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equal protection theory. The record reflects that he specifically argued that a prohibition against the

use of self defense against police officers violated equal protection. Notwithstanding, we agree with

the State that the District Court properly instructed the jury.

¶33 As previously stated, we review jury instructions to determine whether the instructions as a

whole, fully, and fairly instruct the jury on the law applicable to the case. Hall, ¶ 39. We will not

reverse the trial court unless the instruction prejudicially affects the substantial rights of the

defendant. Goulet, 283 Mont. at 41, 938 P.2d at 1332. In this case, none of Courville’s arguments

demonstrate that the District Court erred.

¶34 We first consider Courville’s equal protection argument. Under the Montana Constitution,

Article II, Section 4, the first step in resolving a claimed violation of the equal protection clause is to

determine whether there are two similarly situated classes that receive different treatment. In re

C.H. (1984), 210 Mont. 184, 198, 683 P.2d 931, 938. Courville asserts that the prohibition against

the use of force to resist arrest allegedly creates two separate classes: those who cannot use self

defense against a peace officer and those who can use self defense in any other situation.

¶35 We disagree with this premise--i.e. that the prohibition against the use of force as codified by

§ 45-3-108, MCA, creates two similarly situated classes subject to different treatment. The use of

self defense applies equally to both the classes of persons presented by Courville. In either case, the

use of self defense depends on a reasonable belief of imminent harm based on the facts of the

situation. Nothing limits this defense to only non-law enforcement aggressors. The plain language

of the jury instructions and the statutes upon which the instructions are based support this

conclusion.

¶36 Courville claimed that his conduct against Kirby was justified under § 45-3-102, MCA; that

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he acted in self defense. He presented his defense to the jury. This is precisely what occurs when

any criminally accused person claims that the charged conduct was justified under § 45-3-102,

MCA. The fact that the actor against whom the defensive conduct is directed happens to be a police

officer matters not in the least for purposes of the self defense defense. If Courville had been able to

satisfy the jury that he reasonably believed that his conduct was necessary to defend himself against

the imminent use of unlawful force by Kirby, then he would have been entitled to acquittal.

Unfortunately for Courville, the jury did not find merit in his defense.

¶37 As to § 45-3-108, MCA, the prohibition against the use of force to resist arrest is exactly

that: one cannot use force to resist arrest. In contrast, self defense is justified when one reasonably

believes that such conduct is necessary to defend his person against the imminent use of unlawful

force. In other words, one cannot use force to resist arrest, but one can use force to defend himself if

he reasonably believes that such conduct is necessary as against the imminent use of unlawful force.

¶38 While reconciling §§ 45-3-108, MCA and 45-3-102, MCA, in this manner may seem

somewhat internally inconsistent, the point to be noted is that the former statute is aimed at

encouraging peaceful arrests and at protecting law enforcement officers from violence in the

execution of their statutory duties. The latter statute, § 45-3-102, MCA, allows a person to defend

himself against the imminent use of unlawful force. Indeed, § 46-6-104(2), MCA, requires that

officers only use the force necessary to make an arrest. Section 46-6-104(2), MCA (All necessary

and reasonable force may be used in making an arrest, but the person arrested may not be subject to

any greater restraint than is necessary to hold or detain that person (emphasis added)); § 45-3-106,

MCA; State v. Prlja (1920), 57 Mont. 461, 465, 189 P. 64, 66.

¶39 Where the claim is that a peace officer used unlawful force in executing an arrest and the

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person subject to the restraint reasonably believed that he must defend himself against the imminent

use of this unlawful force, then the resolution of those conflicting claims is properly left to a jury.

See also Compiler’s Comments to § 45-3-108, MCA (Illinois, from which the statute was adopted,

allows arrestee to protect himself from unlawful or excessive force from officer). Thus, instead of

creating two separate classes of persons regarding self defense for equal protection purposes, as

Courville argues, the prohibition against the use of force to resist arrest by a peace officer simply

adds an additional matter for consideration and resolution by the fact-finder--i.e. whether the person

arrested had a reasonable belief that he needed to defend himself against the imminent use of

unlawful force by the officer. See State v. Harkins (1929), 85 Mont. 585, 601, 281 P. 551, 557

(Whether the circumstances justified defendant as a reasonable person in the belief that he was in

imminent danger was a question of fact for the jury).

¶40 As this case illustrates, the claim of self defense in justification of one’s conduct is always

considered within context and circumstances of the specific event at issue so that the fact-finder may

determine whether the accused's belief is reasonable. In this case, Courville’s testimony and

affirmative defense of self defense were submitted to the jury along with the video tape, Kirby’s

testimony, photographs and other evidence. See § 45-3-115, MCA. Based on this evidence, the jury

chose not to believe Courville. In other words, the jury did not believe that, in effecting Courville's

arrest, Kirby was using unlawful force that would have justified Courville's reasonable belief that he

needed to defend himself from imminent harm. It was the province of the jury to decide whether

Courville’s belief was reasonable. The jury’s verdict reflected their contrary determination.

Compare State v. Heffner, 1998 MT 181, ¶¶ 30-33, 290 Mont. 114, ¶¶ 30-33, 964 P.2d 736, ¶¶ 30-33

(whether defendants were justified in their use of force against state employee was a question of fact

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jury resolved against defendants).

¶41 As already noted, Courville’s self defense theory failed. But, that does not mean that two

separate classes are created by § 45-3-108, MCA, and § 45-3-102, MCA. Accordingly, we reject

Courville's claim that his right to equal protection was violated.

¶42 Courville next asserts that the jury was confused by Instructions 22 and 21. Courville claims

that the jury could not understand how a person might act in self defense against a police officer in

light of the prohibition against resisting arrest. On this premise, Courville asserts that Instruction 22

nullified Instruction 21 and confounded the jury. We disagree.

¶43 As already discussed, when, as here, the fact-finders are presented with the appropriate

evidence, trial juries are fully capable of deciding if the accused reasonably believed that he was

required to defend himself from the imminent use of unlawful force by a police officer in effecting

an arrest. In the case at bar, we conclude that the jury was properly instructed and that neither of the

instructions at issue nullified the other or confused the fact-finders.

¶44 Finally, Courville asserts that Instruction 22 was improperly given because the offense of

resisting arrest was not presented to the trier of fact to decide. While it is true that Courville's trial

jury was not charged with determining whether he unlawfully resisted arrest, it is also true that

Courville pled guilty to precisely that offense prior to his trial--i.e. to misdemeanor resisting arrest in

violation of § 45-7-301(1)(a), MCA. It is undisputed that Kirby was attempting to arrest Courville at

the point when the encounter occurred. Indeed, that was the predicate of Courville's defense.

Instruction 22 did nothing more than fully and fairly instruct the jury on the law regarding use of

force to resist an arrest. The jury was properly instructed in the relevant law so as to guide their

deliberations regarding whether Courville’s belief in the need for self defense was reasonable.

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¶45 We hold that, on the facts of this case, the trial court properly submitted Instructions 21 and

22 to the jury and that no substantial right of Courville was prejudiced.

IV. CONCLUSION

¶46 In summary, we hold that the District Court correctly denied Courville’s motion to suppress

and that the court properly instructed the jury.

¶47 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE

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Justice Terry N. Trieweiler concurring and dissenting.

¶48 I concur with the majority's conclusion that the exclusionary rule does not apply to evidence

of Matthew Courville's altercation with Deputy Sheriff Larry Kirby following his detention. I agree

that the evidence was admissible pursuant to our prior decision in State v Ottwell (1989), 239 Mont.

150, 779 P.2d 500. However, I do not agree with all that is said in the majority Opinion during its

discussion of the suppression issue. Specifically, I do not agree that the law of "attenuated"

evidence applies in this case. I would simply conclude as the Court did in Ottwell that the

exclusionary rule does not apply to evidence of criminal conduct committed in response to a claimed

Fourth Amendment violation.

¶49 I also disagree with language in ¶ 26 of the majority Opinion to the effect that had Courville

simply submitted to Kirby's authority, it is likely that no violent confrontation would have followed.

Who caused the violent confrontation, depends on who you believe. While the majority's

observation may be true based on Kirby's version of events, it certainly is not supported by

Courville's version of events. I do not presume to know which version is correct. However, it is

irresponsible to suggest that in every encounter between police and private citizens, the key to a

peaceful resolution is to simply submit to the authority of the State no matter how violently or

illegally it is imposed.

¶50 I dissent from the majority's conclusion that the District Court did not abuse its discretion

when it gave Instruction No. 22 to the jury. The jury was told:

A person is not authorized to use force to resist an arrest which he knows is being
made by a peace officer, even if he believes that the arrest is unlawful and the arrest
in fact is unlawful.

Instruction No. 22. (Emphasis added.)
¶51 The District Court erred by giving Instruction No. 22 for two reasons. First, Courville pled

guilty to resisting arrest long before trial and the instruction was irrelevant to any issue the jury was

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being asked to decide. Secondly, Courville is correct when he asserts that Instruction No. 22

completely nullified his statutory right to rely on self-defense as a defense to the claim that he

assaulted Kirby.

¶52 There was no way for the jury to reconcile the District Court's instruction that Courville was

entitled to use force if necessary to defend himself against the imminent use of unlawful force

(Instruction No. 21) with the court's subsequent instruction to the jury that Courville was not

authorized to use force to resist an arrest no matter how unlawful (Instruction No. 22). The

altercation at issue occurred in the context of an arrest. Either Courville was entitled to defend

himself or he wasn't. However, the jury was instructed first that he was and then that he wasn't.

¶53 In a classic example of intellectual hairsplitting, the majority concedes that while reconciling

§ 45-3-108, MCA (related to resisting arrest), and § 45-3-102, MCA (related to self-defense), may

seem internally inconsistent, they can be reconciled because § 46-6-104(2), MCA, permits only that

degree of force by law enforcement officers necessary to make an arrest. The majority then

concludes in ¶ 39 that:

Where the claim is that a peace officer used unlawful force in executing an arrest and
the person subject to the restraint reasonably believed that he must defend himself
against the imminent use of this unlawful force, then the resolution of those
conflicting claims is properly left to the jury. . . . [Emphasis added.]

¶54 However, the resolution of the conflicting claim was not left to the jury because in

Instruction No. 22 the jury was told that it did not matter whether Kirby's arrest was lawful or

unlawful. The jury was told that Courville's resistance could not be justified under the law no matter

how unlawful Kirby's conduct may have been.

¶55 Because Instruction No. 22 should not have been given in this case, I would reverse

Courville's conviction and remand for a new trial with proper instructions to the jury. Therefore, I

would conclude that it is not necessary to reach the issue of whether § 45-3-108, MCA, is

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constitutional.

¶56 However, because the majority addresses the constitutionality of § 45-3-108, MCA, it is

necessary to point out that under circumstances other than those present in this case, the statute

could implicate a defendant's constitutional rights to equal protection and due process of law. I

believe that denial of a person's right to defend himself or herself against the imminent use of

unlawful force is a denial of due process. I would also conclude that to deny citizens who are

victims of unlawful force by police officers the right to defend themselves, while at the same time

permitting victims of unlawful force by anyone other than a police officer to defend themselves,

violates the right to equal protection. The effect of § 45-3-108, MCA, would be under some

circumstances to nullify the right of self-defense for victims of police violence and, therefore,

unconstitutional. When the majority states, as it does in ¶ 36, that:

If Courville had been able to satisfy the jury that he reasonably believed that his
conduct was necessary to defend himself against the imminent use of unlawful force
by Kirby, then he would have been entitled to acquittal. . . . ,

the majority is simply incorrect. Based on Instruction No. 22, the jury could not have acquitted

Courville no matter how excessive and unlawful the force used by Kirby was proven to be.

¶57 Finally, I disagree with the majority's conclusion that Courville waived his right to rely on

the Supreme Court's decision in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147

L.Ed.2d 435. Courville objected to the enhancement of his sentence based on violation of his right

to due process. That objection was sufficient to place the District Court on notice of the

constitutional rights at issue in Apprendi. There is no rule of procedural law which requires that a

party specify the case name for the principle of law on which he or she relies in the district court in

order to preserve that issue for appeal. Having concluded that Courville did not waive his right to

rely on Apprendi, I would also conclude that Apprendi prohibits enhancement of his sentence for use

of a weapon where there has not been a separate determination by the jury that he used the weapon

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in the commission of his crime.

¶58 For these reasons, I would reverse the judgment of the District Court and remand to the
District Court for a new trial with proper instructions to the jury. Aside from that result, I would
strike the enhancement of Courville's sentence pursuant to § 46-18-221, MCA, for lack of a jury
determination that he, in fact, used a weapon in the commission of his crime.
/S/ TERRY N. TRIEWEILER

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