State v. Azure

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No. 98-186

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 22

STATE OF MONTANA

Plaintiff/Respondent,

v.

DONALD AZURE

Defendant/Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable Kenneth R. Neill, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Lawrence A. LaFountain, Belgrade, Montana

For Respondent:

Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney
General, Helena, Montana; Brant S. Light, Cascade County Attorney, Great Falls, Montana

Submitted on Briefs: August 9, 2001

Decided: February 12, 2002

Filed:

__________________________________________

Clerk

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Justice Patricia O. Cotter delivered the Opinion of the Court.

1. ¶In February, 1997, Donald Azure (Azure) was charged with deliberate homicide,
attempted deliberate homicide, and criminal mischief, a misdemeanor. A jury found
Azure guilty of deliberate homicide of John Cavill; mitigated attempted deliberate
homicide of Lois Cavill; and criminal mischief, a misdemeanor. Azure's motion for
a new trial or modified verdict was denied, and the District Court sentenced Azure
to 110 years for deliberate homicide with the use of a weapon, 12 years for
mitigated attempted deliberate homicide with the use of a weapon, and 6 months for
criminal mischief, with all sentences to run consecutively. Azure appeals the court's
denial of his motion for a modified verdict, and alleges improper jury impanelment
procedure and prosecutorial misconduct. We affirm.
2. ¶We restate the issues as follows:

1. Whether Azure's allegation of an unlawful jury impanelment may be reviewed on direct
appeal, when no objection was raised at trial;

2. Whether Azure's allegations of prosecutorial misconduct may be reviewed on appeal,
when no objection to the conduct was raised at trial; and

3. Whether the District Court erred when it denied Azure's motion for a modified verdict.

FACTUAL AND PROCEDURAL BACKGROUND

1. ¶Azure and Lois Cavill (Lois) were married in 1981. According to Lois, the
marriage began to deteriorate when Azure started drinking, and in 1987, she filed
for divorce following an incident when Azure threatened to kill her. Lois later

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withdrew the papers upon promises by Azure to stop drinking. In December of
1996, Azure was drinking again and because she felt threatened, Lois obtained a
restraining order to keep Azure away from her. However, Azure violated the
restraining order on January 6, 1997, when he broke into Lois' residence and was
waiting on the couch when Lois came home. Azure pointed a gun at Lois, and he
told her that he had one shell in the chamber for her and one for him. Lois
convinced Azure she would not leave him, and that she would help him. Azure
stayed at the house that night, and the couple met with a marriage counselor the next
day. However, Lois decided to go through with divorce proceedings after Azure
accused her of having an affair. Lois left the residence on January 13, 1997, and
went to Plains, Montana, to stay with her brother, Fred Cavill (Fred). According to
Fred, when Azure later called for Lois at his house, Azure told him that if he
couldn't talk to Lois, Azure would blow her head off, burn her house down, and
shoot himself.
2. ¶On February 3, 1997, the couple reached a property settlement in their divorce;
Azure received $5,500.00, the van, and his truck, while Lois received the house and
a truck. Lois' brother John Cavill (John) came to Great Falls to help Lois pack her
belongings and move to Plains. On February 13, while Lois and John were packing
her things, Lois observed Azure's van drive by the house several times. Several
neighbors also observed Azure's van in the area that day.
3. ¶Later on February 13, at approximately 8:30 p.m., a prospective buyer for Lois'
house, Kathy Carson (Carson), discovered the front tires of her truck and the rear
tires of John's truck had been slashed with a large knife while she was looking at the
house. Carson, a local police officer, was off duty at the time. After learning about
Lois' estranged relationship with Azure and past incidents of threatening behavior
by Azure, Carson arranged to have a patrol officer periodically check on the
residence.
4. ¶At approximately 8:58 p.m., Great Falls City Police Officer, Steven Pre'tat
(Pre'tat), responded to the call regarding the slashed tires. After Pre'tat examined the
tires, Lois showed him a note that Azure had written to her that read: "Tell me
something or it could be bad. I love you. I don't want trouble." Pre'tat looked for
Azure's van in the area, but did not locate it. Pre'tat informed Great Falls Police
Officer Doug Otto (Otto) of the situation, and advised him to look for Azure in the
area, since Otto was scheduled for the night shift.
5. ¶Shortly after 10:00 p.m., a neighbor who lived just down street from Lois' house
observed Azure's van slowly drive up in front of her house without its lights on. The
van was parked for about ten or fifteen minutes and then proceeded towards Lois'

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residence.
6. ¶About this same time, police officer Otto came on shift and proceeded to check on
Lois' residence. When he arrived, Otto observed Azure's van parked in front of Lois'
house, but could not see anyone around the vehicle. The officer positioned his patrol
car so he could observe the residence and turned his headlights off. While Otto was
parking his patrol car, he heard a gunshot and saw a muzzle flash, and then
immediately heard two more shots.
7. ¶At approximately 10:20, p.m., Lois was in the back bedroom when she heard John
holler something about trouble, and as she ran towards the kitchen, she heard the
first shot. Lois called to John but he did not respond. Lois grabbed a gun to try and
protect herself, but while she was loading a shell, the gun jammed. Lois then heard
another shot and hid behind some boxes in the dining room area. When Lois reached
up to shut off the lights, she saw John lying in the kitchen, and then looked out of
the window and saw Azure in his van with Otto's patrol car right behind it.
8. ¶After the shots, Otto called for back-up and then observed a man, later identified as
Azure, get into the van and drive off. With his lights and siren activated, Otto
pursued the van for several minutes, observing the van fail to stop at stop signs and
stop lights. Other law enforcement officers joined the pursuit and at one point, threw
a stop stick in front of Azure's van. Although the stick punctured a tire on the van,
Azure continued to drive. Eventually Azure stopped his van at a local bar, where he
got out and walked toward the bar. Azure was sprayed with pepper spay and then
subdued by Otto and another officer. Otto then arrested Azure and Great Falls City
Police Officer John Cathell (Cathell) advised him of his Miranda rights. Otto and
Sergeant John Cameron (Cameron) testified that Azure did not appear agitated or
emotionally upset at the time of his arrest. Cameron testified that when he looked
inside Azure's van, he observed a bolt action rifle lying between the van's front seats.
9. ¶While Azure was being pursued, several Great Falls City Police officers and
detectives responded to Lois' residence. Upon entering the house, officers observed
John lying dead on the kitchen floor, with a massive gunshot wound to his left eye.
His feet were underneath the kitchen sink kick board, and the officers observed one
bullet hole in the kitchen window, which was positioned above the sink. According
to Detective William Bellusci (Bellusci), John was standing in front of the kitchen
window and leaning towards the sink when he was shot. The officers also observed
two bullet holes in the dining room window.
10. ¶Two shell casings matching Azure's rifle were found on the lawn, while a third was
found on the van's floor on the passenger's side. The rifle between the seats of
Azure's van was a .270, and a partially full box of .270 ammunition was found in the

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van. The scope affixed to the rifle was set for close range, for shooting a distance of
25 to 30 feet. Detective Bellusci testified that when looking through a scope at a
window that was lit up at night, the light would silhouette anything within the
house.
11. ¶After his arrest, Otto transported Azure to the police department where he waited
in a holding cell. Otto testified that Azure did not appear emotionally upset in the
holding cell, nor did Otto observe anything unusual about Azure's behavior. While
in the cell, Azure initiated a conversation with Cathell who informed Azure of his
Miranda Rights again. However, Azure continued to converse with Cathell, stating,
"I'm in the process of getting divorced right now and this is what this is all about."
However, Azure also stated that he didn't remember anything, saying, "The only
thing I remember is I'm driving down the street and a bunch of cops behind me;" but
then asked, "Did I run over somebody or what?" Soon after, Azure states again that
this all about the divorce, and adds, "I went and got drunk. I don't know what
happened," and then, "I'll be sixty years old pretty soon, and I can't believe I did
something like that." However, Azure again refers to hurting someone: "Boy! I hope
nobody got hurt. Shit! That would really bum me out if somebody got hurt. Did I get
in a wreck or what?" Finally, Azure also said, "I can't believe I'd do something like
this. And I don't even know what I did."
12. ¶Shortly after his last statement, while still in the holding cell, Azure complained of
chest pain, but told the paramedics that he drank all night and added, "I don't think
I'm having a heart attack." During the transportation to the hospital, Azure
voluntarily told Officer Cathell, "God, I hope I didn't hurt anyone too bad. If I did, I
hope I have a heart attack." Azure was treated and released and eventually
transported to the County Jail. While being booked at the jail, Azure voluntarily said
to the booking officer, several times, "I can't believe I shot him." According to the
officer, Azure blurted out, "What makes a man shoot someone like I did?" and "All
of this happened because of the divorce." The booking officer testified that at the
time he was being booked into the jail, Azure was aware that he was charged with
deliberate homicide.
13. ¶Azure claims that the statements he made in the holding cell were made after he
was given a citation and told that he was charged with "first degree homicide," and
that his chest pains were related to finding out he was charged with killing John
Cavill. Officer Cathell testified that when Azure was arrested at the bar, none of the
officers told Azure that a person had been killed. According to Cathell, and verified
by the contents of the videotape of Azure while he was in the holding cell, no one
told Azure that John had died while Azure was in the holding cell.

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14. ¶On February 27, 1997, Azure was charged by Information with the following
Counts: (I) deliberate homicide of John Cavill; (II) attempted deliberate homicide of
Lois Cavill; and (III) criminal mischief, a misdemeanor, for slashing the tires on two
trucks.
15. ¶At the trial in October of 1997, Azure testified he was severely depressed over the
divorce and that he was under extreme emotional stress when he shot at the house.
Azure explained that he had intended only to shoot out the windows, and that he did
not know John was standing at the window when he fired the first shot.
16. ¶During the trial, witnesses characterized Azure as being depressed, under a lot of
stress, and very withdrawn just prior to the shooting on February 13, 1997. A legal
secretary for Azure's attorney testified that Azure did not want to get divorced, and
was constantly crying when he was at his attorney's office. She also admitted that on
February 12, 1997, when she saw Azure, he told her he was drunk, and on February
13, the day of the shooting, she smelled alcohol on Azure when he came to sign the
divorce papers at 10:30 a.m.
17. ¶Deborah Morris (Morris), Azure's daughter, testified that on the night of the
shooting, Azure called her around 10:00 p.m. Azure was upset and crying and
indicated he wished Lois would talk to him. Azure also told Morris he intended to
kill himself, and that he wanted Fred, Lois' brother, to quit messing with him. When
Azure called Morris back five minutes later, all he did was cry. During her
testimony, the State questioned Morris about previous statements she made to
Detective Bellusci concerning threats Azure made about Fred, but Morris denied
making those statements. Azure denied ever threatening Fred or John Cavill.
18. ¶James Donahue (Donahue), a Deputy County Attorney who handles involuntary
commitments, testified that in January, 1997, Lois called him and relayed concerns
she had about Azure's mental health and behavior. Donahue testified that he talked
to Azure's daughter, Morris, about similar concerns, and that both women frequently
called his office about the matter. Donahue explained he did not take any steps to
have Azure committed because the information he received indicated Azure's
problems were with alcohol, and the county attorney's office only handles
commitments for people with psychiatric illness. Donahue never spoke with Azure
personally.
19. ¶Azure testified that after being served divorce papers on January 6, 1997, he was
very depressed and suicidal, and he drank a considerable amount during that day. He
admitted breaking into the house and pointing a gun at Lois, but denied the gun was
loaded, or that he intended to hurt Lois. He said he used the gun to make her talk to
him, and admitted he told Lois he had one shell for her and one for him in the gun.

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20. ¶Azure also admitted he drove by the house several times on February 13, and that
he punctured the two trucks' tires due to his frustration with the divorce. According
to Azure, he returned to the house after 10:00 p.m. to see if Lois and John were gone
so he could sleep in the house rather than in his van. Azure said that after parking
his van kitty corner from the residence, he sat for about 10 or 15 minutes, watching
the house and crying. He then drove up to the house and parked his van with the
driver's side closest to the house.
21. ¶Azure explained that he wanted to shoot out some windows in the house so it
would be too cold for Lois and John to stay there that night. In his mind, Azure
thought if he could not stay in the house, Lois and John should not be able to either.
Azure testified that when he got out of his van, the kitchen light was on, but that he
did not see John, nor was it his intention to shoot John. Azure testified that when he
shot at the kitchen window he was approximately 20 or 25 feet away and that he
was crying pretty hard and everything was blurry. He then shot twice at the dining
room window, but it did not break. While walking toward the window to break it,
Azure saw Officer Otto, and got into his van and left. Azure said he drove towards
the river, because he wanted to kill himself.
22. ¶At the trial, Dr. Michael Scolatti (Scolatti), a clinical psychologist, testified as to
Azure's psychological condition the night of the shooting. Scolatti testified that
Azure did not develop the typical coping strategies that are developed during
childhood, and explained that Azure was clinically depressed for two months prior
to the shooting, which was exacerbated when he would drink. According to Scolatti,
Azure felt powerless and hopeless about his marriage ending, especially since he
could not talk to Lois. The high level of stress and depression that Azure
experienced, according to Scolatti, eroded his ability to make good decisions, think
clearly, or concentrate on problems.
23. ¶Scolatti also diagnosed Azure with avoidant personality disorder, which relates to
how a person interacts with others; in Azure's case it meant he felt inadequate and at
fault for the divorce, while still holding out hope for reconciliation. According to
Scolatti, factors such as Lois leaving, signing the divorce papers, and not being able
to get into the house that night, were all "provocations" to the shooting. Scolatti
testified that in his opinion, Azure was under extreme emotional distress during the
period of time leading up to the shooting that affected his ability to function and
make sound decisions. Scolatti noted these factors as the main contributors: the
divorce, and Azure's clinical depression, physical disability, and avoidant
personality disorder. Scolatti stated that in his opinion, on the night of the shooting
Azure could have acted purposely or knowingly, but that he did so under extreme

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emotional distress.
24. ¶Dr. William Stratford (Stratford), a forensic psychiatrist, testified for the State as to
Azure's emotional state the night of the shooting. Stratford testified that although
Azure was acting under some stress at the time of the offense, in his opinion, Azure
was not under extreme emotional stress. Stratford explained that in his opinion,
Azure did not "snap" the night of the shooting, but rather there were certain
behaviors and choices that led up to the events. Stratford testified that Azure met the
criteria for alcoholism and some broad form of depression. Stratford also agreed that
Azure was not suffering from any mental impairment that prevented him from
acting purposely or knowingly at the time of the offense.
25. ¶Following the trial, the jury convicted Azure on Counts I, deliberate homicide of
John Cavill, and III, criminal mischief, but on Count II, found Azure guilty of the
lesser offense, mitigated attempted deliberate homicide of Lois Cavill.
26. ¶On November 5, 1997, Azure filed a Motion for New Trial or Modified Verdict,
wherein he argued in part that the guilty verdict of deliberate homicide was
inconsistent with the reduced guilty verdict of mitigated attempted deliberate
homicide. Following a hearing on December 8, 1997, and after considering the
parties' briefs and arguments, the District Court denied Azure's motion for a new
trial or modified verdict.
27. ¶On December 9, 1997, Azure was sentenced to 110 years for deliberate homicide
with the use of a weapon; 12 years for mitigated attempted deliberate homicide with
the use of a weapon; and 6 months for criminal mischief, with all sentences to run
consecutively. Azure's appeal followed.

STANDARD OF REVIEW

1. ¶The standard of review that applies to a district court's denial of a motion for
directed verdict in a criminal case is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Hall, 1999 MT
297, ¶ 19, 297 Mont. 111, ¶ 19, 991 P.2d 929, ¶ 19 (citation omitted). We deem a
motion for judgment notwithstanding the verdict as a motion for a new trial made
under § 46-16-702, MCA, and our standard of review of a district court's ruling on a
motion for new trial is whether the district court abused its discretion. State v. Bell
(1996), 277 Mont. 482, 485, 923 P.2d 524, 526 (citation omitted).

DISCUSSION

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Issue 1

1. ¶May Azure's allegation of an unlawful jury impanelment be reviewed on
direct appeal when no objection was raised at trial?

2. ¶Azure claims that his jury impanelment was defective under State v. LaMere, 2000
MT 45, 298 Mont. 358, 2 P.3d 204, wherein we held the clerk's procedure for
impaneling the jury did not comply with Montana law, and remanded the case for a
new trial. Azure argues that because he was tried two months after LaMere and in
the same District, "it was highly probable that Azure's jury was impanelled in the
same illegal manner." Azure asks this Court to remand this case for fact-finding on
this issue, since there was no record made as to how the jury was gathered.
3. ¶The State counters that Azure waived this claim for the purposes of appellate
review when he failed to make a record of the procedure used to impanel the jury.
The State argues it would be improper for this Court to remand for fact finding on
the issue, noting it would undermine the rules regarding contemporaneous
objections.
4. ¶Azure acknowledges his allegations of improper jury impanelment are raised for
the first time on appeal. Failure to make a timely objection during trial constitutes a
waiver of the objection except as provided in § 46-20-701(2), MCA. Section 46-20-
104(2), MCA. However, Azure argues that under the plain error doctrine this Court
has the discretion to review this issue since it concerns a manifest miscarriage of
justice.
5. ¶ In LaMere, we reversed the District Court's denial of defendant's motion to strike
the jury panel after considering affidavits and statistical evidence which revealed the
potential for bias in the jury selection technique used by the clerk of court. LaMere,
¶¶ 6-9. Based on the record before us, we concluded the process of using the
telephone to summon prospective jurors into court did not comply with the statute
governing impanelling of a trial jury, and therefore vacated LaMere's conviction and
remanded the case for retrial. LaMere, ¶¶ 75-76.
6. ¶In Sate v. Highpine, 2000 MT 368, 303 Mont. 422, 15 P.3d 938, and State v.
Lopez, 2001 MT 97, 305 Mont. 218, 26 P.3d 745, we applied our holding from
LaMere, and found the district court in both cases erred by denying the defendants'
motions to strike the jury panel. See Highpine, ¶ 41 and Lopez, ¶¶ 16-17. In both
cases, the record demonstrated the jury was summoned by telephone. See Highpine,
¶ 39, and Lopez, ¶ 11.

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7. ¶Azure argues that the Clerk of the Eighth Judicial District Court, "commonly
summoned [eligible jurors] to court by telephone," and that this impaneling
procedure was the "standard practice in the Eighth Judicial District Court during
1997 and 1998." Azure also asserts the "court knew the statutes were not being
followed by the clerk of court . . . ."
8. ¶However, Azure cites to nothing in the record concerning the actual procedure used
by the clerk in summoning the jury panel or any evidence of potential prejudice
based on the method of summoning the jury. It is axiomatic that this Court will not
consider "evidence" not contained in the record on appeal. State v. Spina, 1999 MT
113, ¶ 17, 294 Mont. 367, ¶ 17, 982 P.2d 421, ¶ 17 (citation omitted). Moreover,
this Court's review of allegations on direct appeal is confined to the record. State v.
Henry (1995), 271 Mont. 491, 496, 898 P.2d 1195, 1198 (citations omitted). See
also, State v. Mix (1989), 239 Mont. 351, 361, 781 P.2d 751, 757 (citations omitted)
("We have long held to the principle that an appellate court in reaching its decision
will only consider material ascertainable from the record."). Accordingly, we cannot
simply rely on Azure's allegations of improper jury impanelment procedure.
9. ¶Azure asks this Court to remand this case for a determination of what method the
clerk of court used in summoning the jury. However, remanding for a hearing is not
a proper remedy for an appeal on direct review, since an evidentiary hearing "can
only be accomplished in a postconviction proceeding." State v. Whitlow, 2001 MT
208, ¶ 38, 306 Mont. 339, ¶ 38, 33 P.3d 877, ¶ 38 (Nelson, J., specially concurring
and dissenting). See also State v. St. John, 2001 MT 1, ¶ 40, 304 Mont. 47, ¶ 40, 15
P.3d 970, ¶ 40, overruled on other grounds by State v. Brister, 2002 MT 13, ___
Mont. ___, ___ P.3d ___ (when the record does not provide the basis for the
challenged acts or omissions of counsel, a defendant's claim for ineffective
assistance of counsel is more appropriately brought as a petition for postconviction
relief). Because we cannot determine from the record what procedure the clerk of
court used in summoning the jury, we decline to review this issue further.
10. ¶Finally, we will not review Azure's claim pursuant to the plain error doctrine, as
there is no record before us to determine whether an error occurred, let alone if the
error met the criteria of the plain error doctrine under common law or § 46-20-701,
MCA.

Issue 2

1. ¶May Azure's allegations of prosecutorial misconduct be reviewed on appeal
when no objection to the conduct was raised at trial?

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2. ¶Azure argues the State committed prosecutorial misconduct by introducing "false
evidence" during the trial concerning threats Azure allegedly made toward Fred
Cavill. Azure contends the State's introduction of testimony from Morris that Azure
had made threats toward Fred Cavill was "false evidence," since Morris denied
telling the detective Azure had made the threat the night of the shooting. Azure
argues the State again introduced this "false evidence" when it asked Azure about
the statements, even though Azure said he did not remember making the statements.
Significantly, Azure admits no objections to this "false evidence" were made during
Morris' testimony.
3. ¶The State contends nothing in the record indicated the State introduced false
testimony or forced Azure to speculate as to statements he made about Fred Cavill.
The State argues that Azure is precluded from raising this issue on direct appeal
since he failed to make contemporaneous objections at trial.
4. ¶Specific objections must be made to portions of testimony deemed inappropriate.
State v. Courchene (1992), 256 Mont. 381, 385, 847 P.2d 271, 273 (citation
omitted). Failure to make a timely objection during trial constitutes a waiver of the
objection except as provided in § 46-20-701(2). Section 46-20-104(2), MCA. "[W]
here a criminal defendant fails to make a contemporaneous objection to the
prosecution's characterization of the facts during trial, this Court is precluded 'from
addressing an issue under § 46-20-104(2), MCA, unless the criteria under § 46-20-
701(2), MCA, can be met or the comments create an exception under the plain error
doctrine.' " State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2d 1290, 1294 (citation
omitted). See also State v. Rogers (1993), 257 Mont. 413, 419, 849 P.2d 1028, 1032
(citation omitted) (When the district court was not given an opportunity to rule on
the admission of a statement or to correct itself if admission was not proper, "[w]e
will not put the trial court in error where it has not been given such a chance"). For
an objection to be contemporaneous and thus preserve an appeal, it must be "made
at trial in a timely manner and upon specific grounds, which appear on the record,
and which is made as soon as the ground for the objection becomes apparent." Stuit,
268 Mont. at 182, 885 P.2d at 1294 (citations omitted). Azure did not object at any
time to Morris' testimony on direct examination or to Azure's testimony on cross
examination. Nor has Azure argued that the plain error doctrine should apply to this
issue.
5. ¶Therefore, we conclude Azure waived his right to an appellate review of his claims
regarding prosecutorial misconduct arising out of the statements Azure allegedly
made to Morris.

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Issue 3

1. ¶Did the District Court err when it denied Azure's motion for a modified
verdict?
2. ¶Azure argues that the District Court erred when it denied his motion for a modified
verdict. Azure had asserted that the jury's verdict on deliberate homicide was
logically and legally inconsistent with the verdict of mitigated attempted deliberate
homicide. Azure contends that once the jury concluded Azure was acting under
extreme stress at the time he shot at the dining room window, it had to likewise
conclude that Azure was also under extreme stress when he shot at the kitchen
window, seconds earlier, killing John. The State argues that this Court should not
second-guess a jury verdict, and that inconsistencies are allowed in verdicts.
3. ¶ We have held that "where separate acts are charged in an information, and each act
is a separate offense, an acquittal or conviction of one or more counts does not
affect the other counts." State v. Sanderson (1985), 214 Mont. 437, 451, 692 P.2d
479, 487 (citation omitted). In cases where the sufficiency of the evidence is
considered, we will not substitute our judgment for that of the jury, which is "able to
view firsthand the evidence presented, observe the demeanor of the witnesses, and
weigh the credibility of each party." Sanderson, 214 Mont. at 452, 692 P.2d at 487.
See also, State v. Larson (Minn. 1979), 281 N.W.2d 481, 487 (It is within the jury's
prerogative to find a defendant guilty of four homicides, but find that he lost his
ability to distinguish right from wrong when he fatally shot the last victim).
4. ¶Moreover, we will not attempt to ascertain what the jury actually determined. See
Dallas v. Arave (9th Cir. 1993), 984 F.2d 292, 295. "If the circumstances reasonably
justify the verdict, this Court must assume the existence of every fact which the jury
reasonably could have deduced from all the evidence." State v. Doney (1981), 194
Mont. 22, 33, 636 P.2d 1377, 1384 (citation omitted). Whether Azure acted under
extreme emotional distress was a question of fact for the jury. See State v. Sunday
(1980), 187 Mont. 292, 301, 609 P.2d 1188, 1194 (citation omitted).
5. ¶A rational trier of fact could have found Azure was not under extreme emotional
stress when he shot John Cavill, particularly if the jury concluded Azure could in
fact see John in the window when he fired the shot. The evidence presented to the
jury concerning Azure's emotional stressors predominantly revolved around his
relationship with Lois--her leaving him, Azure not being able to talk to her, and the
signing of the divorce papers. The jury could have reasonably concluded there was
mitigation in Azure's acts toward Lois, but not in his actions toward John. After all,

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the jury heard evidence that Azure could in fact see John in the window prior to
firing the first shot. They also heard Azure testify that the statements he made in the
holding cell and his "heart attack" were the result of being told he was charged with
"first degree homicide;" however, they also heard testimony that Azure was not
informed of John's death at the time. The jury also viewed the tape of Azure in the
holding cell, where he does not mention shooting any windows at all, and there is no
discussion by either Azure or any officer as to why Azure was arrested. Further,
Azure's statements on the holding cell tape oscillated between saying he did not
know what happened to statements such as, " I can't believe I'd do something like
this;" and "I'm right in the middle of getting a divorce, this is what this is all about."
6. ¶For a charge of deliberate homicide to be reduced to mitigated deliberate homicide,
"the jury must be convinced by a preponderance of the evidence that such reduction
is warranted, in accordance with § 45-5-103, MCA." State v. Byers (1993), 261
Mont. 17, 36, 861 P.2d 860, 872, overruled on other grounds by State v. Egelhoff
(1995), 272 Mont. 114, 900 P.2d 260 and State v. Rothacher (1995), 272 Mont. 303,
901 P.2d 82. Section 45-5-103, MCA, provides in part:

(1) A person commits the offense of mitigated deliberate homicide when the person
purposely or knowingly causes the death of another human being but does so under the
influence of extreme mental or emotional stress for which there is a reasonable
explanation or excuse. The reasonableness of the explanation or excuse must be
determined from the viewpoint of a reasonable person in the actor's situation. [Emphasis
added.]

1. ¶The jury could have logically concluded there was no reasonable explanation or
excuse for Azure to shoot at John, while also concluding there was a reasonable
explanation for Azure's actions towards Lois. Thus, we conclude the jury verdicts
are not legally or logically inconsistent. Therefore, the District Court did not err
when it denied Azure's motion for a modified verdict.
2. ¶Accordingly, we affirm.

/S/ PATRICIA COTTER

We Concur:

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/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

/S/ JIM REGNIER

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