State v. Burkhart

No. 03-108

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 372

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RICHARD EARL BURKHART,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. ADC-01-493-2,
The Honorable Thomas M. McKittrick, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Kristina Guest (argued), Assistant Appellant Defender, Helena, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Jim Wheelis (argued),
Assistant Attorney General, Helena, Montana

Brant Light, Cascade County Attorney; John Parker, Deputy County
Attorney, Great Falls, Montana

Argued: July 7, 2004
Submitted: July 13, 2004
Decided: December 23, 2004

Filed:

__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1 Defendant Richard Earl Burkhart (Burkhart) was convicted by a jury in the Eighth

Judicial District Court, Cascade County, on one count of deliberate homicide, felony-murder.

Burkhart appeals his conviction. We affirm.

¶2 The following issues are presented on appeal:

¶3 1. Whether the District Court correctly denied Burkhart’s motion to dismiss on the

grounds the State’s accomplice testimony was uncorroborated?

¶4 2. Whether the District Court correctly denied Burkhart’s motion to dismiss and

deprived him of due process on the grounds the predicate offense for felony-murder was an

assault with a weapon?

¶5 3. Whether the District Court abused its discretion when it removed a prospective

juror for cause?

¶6 4. Whether the District Court improperly considered Burkhart’s refusal to admit guilt

or express remorse at his sentencing hearing?

PROCEDURAL AND FACTUAL BACKGROUND

¶7 On November 13, 2001, the body of William Ledeau (Ledeau) was found at 12th

Street and 1 Alley North in Great Falls, Cascade County. He had been struck in the head

four times with a blunt object. The State initially charged Burkhart on December 10, 2001,

with deliberate homicide by accountability. The State later amended the information on

September 4, 2002, to include deliberate homicide, felony-murder, pursuant to § 45-5-

102(1)(b), MCA. Burkhart was found guilty as charged by a jury on September 19, 2002,

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and sentenced to life imprisonment on October 24, 2002.

¶8 Prior to trial, the State moved to dismiss one juror for cause during voir dire because

of the opinion he expressed concerning a reluctance to follow laws he found disagreeable.

The prosecuting attorney brought up the example of seat belt laws and asked the following

question of the prospective juror:

MR. PARKER: [A]s you know, we have a law in Montana that requires
people to wear seat belts. Let’s pretend that you’re here today as a juror in a
seat belt trial. And let’s also pretend that you personally don’t like to wear a
seat belt and that you personally don’t agree with that law that requires people
to wear seat belts.

If a judge were to instruct you that that is the law and if the evidence showed
beyond a reasonable doubt that the offense were committed, would you be
able to follow the law in that situation?
....

MR. O’LEARY: I would have a hard time agreeing with that. Because all
laws are supposed to be based on the Constitution, and I do not see where you
can force people to wear a seat belt.

MR. PARKER: Okay. Well, that’s an important point. Not everyone will
always agree with a different law. But you do understand, Mr. O’Leary, if you
were chosen as a juror, that you’re actually not allowed to decide whether or
not you agree with the law, that your own role would be to evaluate the facts
and decide whether the offense happened.

MR. O’LEARY: I might have a problem with that. If like, say, it was a blatant
violation of the Bill of Rights or something, like some of the gun laws we
have, you know, it says–in the Constitution it says that the right shall not be
infringed upon. Yet there is (sic) all kinds of laws about guns right now that
I think are unconstitutional and should be disregarded.

MR. PARKER: So you’re saying, in other words, that it might be difficult for
you in a certain kind of a case to follow the law as the judge gives it to you if
you didn’t agree with it?

MR. O’LEARY: Yeah, it would.

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After the prosecutor challenged O’Leary for cause, the District Court allowed Burkhart’s

attorney, Vincent van der Hagen, to question him. Their exchange proceeded as follows:

MR. van der HAGEN: [I]s it any law that you would have a problem with or
is it just specific laws that you would have a problem with?

MR. O’LEARY: Just laws that would be, you know–no, just a few laws.

MR. van der HAGEN: Just a few laws. What are those laws?

MR. O’LEARY: Like I was saying, gun laws, I think a lot of them are
unconstitutional.

MR. van der HAGEN: Gun laws. What about the gun laws do you have a
problem (sic)?

MR. O’LEARY: Just the restriction that are placed on them. When it says that
shall not be infringed upon, and yet there is–

MR. van der HAGEN: Are you talking about a person’s right to possess a gun;
is that what you’re talking about?

MR. O’LEARY: Right.

MR. van der HAGEN: Would you have a problem if an individual had used
a gun to shoot someone, would you have a problem with–under the law, if you
believed that the law says if this person did this, and he did it using a gun and
he is guilty, guilty of the crime, would you let that person off the–

MR. O’LEARY: No.

MR. van der HAGEN: Find him not guilty because of the gun laws?

MR. O’LEARY: No.

MR. van der HAGEN: What other laws do you have a problem with, sir?

MR. O’LEARY: Just some of the search and seizure laws like that–you know,
people involved in drugs, you know, like I’ve heard of cases where people
have marijuana on them or something, and they seize their whole car.

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 MR. van der HAGEN: Drug forfeiture laws. Do I understand you correctly?

MR. O’LEARY: Right. Some of those. Unless, you know, I mean–

MR. van der HAGEN: Why do you have a problem with those kind of laws?

MR. O’LEARY: Because it goes against what I believe.

Following further exchanges, the District Court stated: “Well, he has said he wouldn’t follow

the law if he didn’t agree with it. And I think that’s grounds for disqualification.” The

District Court then excused O’Leary and a jury was eventually impaneled.

¶9 The trial began on September 9, 2002. The State’s evidence at trial showed the

following: In search of the individuals behind an attempted break-in of his car, Burkhart and

his friend, Michael Staley (Staley), encountered Ledeau in the alley between 1 Alley North

and 12th Street. Ledeau had been walking home from his aunt’s house. Burkhart and Staley

confronted Ledeau, accusing him of breaking into Burkhart’s car earlier that evening. When

Ledeau denied his involvement in the break-in and took offense at being accused, Burkhart

hit Ledeau in the head once with a ball-peen hammer. After the initial blow, Ledeau

attempted to flee but was eventually caught and hit three more times in the back and top of

the head by Burkhart. Burkhart and Staley then returned to Staley’s house and called police

to report the break-in.

¶10 Officer Jamie Pinski of the Great Falls Police Department initially arrived at the crime

scene and stated she was approached by Burkhart and Staley. According to Pinski, Burkhart

and Staley told her Burkhart’s vehicle had been broken into and they had seen a male run

northbound across Central Avenue down 12th Street North. They also saw a second male

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run after the first male and, intending to confront the suspected thieves, gave chase after the

two men. In pursuit, Burkhart and Staley said they ran through the parking lot to the east-

side of “All Seasons Spas” and cut off one of the males in 1 Alley North. Burkhart and

Staley told Pinski they caught and confronted one of the males.

¶11 Staley indicated the male flipped his hat off and stated, “Come on mother-fuckers,

let’s go” and began challenging them to a fight. Pinski reported she pointed out a baseball

cap lying near Ledeau and asked them if it appeared to be the same cap the male suspect was

wearing. Pinski indicated both Burkhart and Staley agreed that it was the suspect’s hat.

Ledeau’s aunt, Joanne Dubois, testified at trial Ledeau was wearing the baseball hat when

he left her home that evening.

¶12 Burkhart and Staley were further interviewed that evening by police. Detectives

learned from Burkhart he had broken parole that day, traveling from Bigfork to Great Falls

to visit Staley, another parolee, and buy some methamphetamine. Burkhart stated he was

getting ready to drive back to Bigfork when they both walked out to his car and discovered

someone had stolen some change, cigarettes, and a jacket from inside the automobile.

Additionally, someone had attempted to pry open the trunk of his car in order to gain access

to the speakers in the back.

¶13 Both men told officers they had confronted an Indian man in the alley but had walked

away when the individual became angry and confrontational. They described the male as

Native American, in his twenties, about 5' 10" with a stocky build, skinny mustache, some

hair on his chin and a “skater hair cut.” Burkhart indicated the male was wearing a dark

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shirt, dark pants and a blue baseball cap. This description matched Ledeau when officers

found him that evening. Burkhart and Staley also claimed to have seen other suspicious

individuals in the area that evening. Although Burkhart maintained he and Staley had left

the confrontation when the male became angry, he later told detectives he chased the male

to within 50 feet of where Ledeau’s body was found.

¶14 As part of their investigation, detectives also interviewed Staley’s roommate, Rochelle

Smith-Sterner. Smith-Sterner recalled on November 12, 2001, observing Burkhart and

Staley leave her residence to execute a methamphetamine purchase. A short time later, she

remembered hearing Burkhart yelling that someone had broken into his car, specifically “I

am going to kill the fucker that broke into [my] car.” Shortly thereafter, Smith-Sterner

observed Burkhart and Staley running after two individuals in the area of Central Ave and

12th Street. Smith-Sterner’s residence is across the street from the alley where Ledeau was

found. Smith-Sterner indicated that as Burkhart and Staley caught and confronted the second

male on Central Avenue, she “knew right then and there that someone was going to get their

ass kicked.” Smith-Sterner described the person encountered as a male about twenty-years

old, about 5' 8" in height with a somewhat heavy build and a dark-complexion of Spanish or

Native American heritage. Smith-Sterner also indicated the male was wearing a baseball cap.

Smith-Sterner went on to state her attention was diverted by her two small children running

in the street. It took approximately five to ten minutes to return her kids to the house by

which time she was unable to see what had transpired between Burkhart, Staley and the

individual.

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¶15 Although police interviewed a number of other suspects, Burkhart and Staley

remained the primary focus of their investigation. Although both men proclaimed their

innocence and claimed the man in the alley they confronted was not Ledeau, officers

suspected collusion when Staley and Burkhart separately assisted police sketch-artists in

producing a composite sketch of the man they confronted in the alley. The sketches

resembled Ledeau. When Staley was confronted with this fact, he became emotional and

terminated the interview.

¶16 Fearing incarceration for accountability to deliberate homicide, Staley eventually

admitted he had witnessed Burkhart assault Ledeau. At trial, Staley testified Burkhart, upon

confronting Ledeau, had struck Ledeau in the right cheek with a ball-peen hammer which had

been lying on the car’s passenger-side fender. After Ledeau stumbled backwards, he

regained composure and ran down the alley. Burkhart gave chase, eventually seizing Ledeau

and leveling several blows to the top and side of Ledeau’s head. Staley then testified he and

Burkhart agreed to tell friends and police they had seen someone in the alley that night but

had left the encounter. Staley then told Burkhart to get rid of the ball-peen hammer because

it might have fingerprints. Great Falls Police later recovered the ball-peen hammer from a

local resident who found it near where Ledeau had died. The ball-peen hammer in evidence

carried neither fingerprints nor bloodstains.

¶17 Dr. Gary Dale, the State Medical Examiner, performed Ledeau’s autopsy on

November 14, 2001, and determined the cause of death to be blunt-force trauma to the head.

Dr. Dale found Ledeau had been struck at least four times in the head by an unknown object.

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One of the wounds had penetrated Ledeau’s skull, leaving an approximate one and one

quarter inch circular hole in his head. The blow tore the brain directly beneath another

laceration and also bruised the brain-stem, a wound itself sufficient to kill Ledeau. There

were two other tears on the back of his head consistent with a blunt instrument which

penetrated the muscle at the back of the neck.

¶18 Dr. Dale also retained the two fractured portions of Ledeau’s skull and used them at

trial to show how the ball-peen hammer fit into the depressions. Although police had

gathered other hammers through their investigation, only the ball-peen hammer found at the

crime scene fit both of Ledeau’s depressions precisely. The rounded bottom of one of the

fractures was smooth, matching the ball-peen end, and other characteristics of the wound

showed that a rounded surface the size of the ball-peen end caused the injuries. Dr. Dale

concluded Ledeau was struck at least four times with an instrument, two blows on the side

of his skull and two in the back, including one in the neck. Ledeau would not have been able

to stumble consciously after receiving the most severe injury.

¶19 Burkhart was found guilty by the jury on September 19, 2002, for felony-murder

pursuant to § 45-5-102(1)(b), MCA. On October 24, 2002, the District Court sentenced

Burkhart to life in prison. Burkhart appeals. We affirm.

ISSUE ONE

¶20 Whether the District Court correctly denied Burkhart’s motion to dismiss on the

grounds the State’s accomplice testimony was uncorroborated?

¶21 On appeal, Burkhart argues Staley’s accomplice testimony must be corroborated by

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independent evidence connecting Burkhart with Ledeau’s murder. Burkhart asserts the

eyewitness testimony and forensic evidence presented by the State failed to corroborate

Staley’s testimony, proving only suspicion and not justifying a conviction.

¶22 In response, the State argues its corroborating evidence was sufficient to prove the

circumstances of the crime’s commission. The State maintains the forensic evidence

matching Ledeau’s wounds to the murder weapon and verified accounts of Burkhart’s

demeanor and activities adequately corroborate Staley’s testimony.

¶23 The denial of a motion to dismiss in a criminal case is a conclusion of law. State v.

Dixon, 2000 MT 82, ¶ 10, 299 Mont. 165, ¶ 10, 998 P.2d 544, ¶ 10. The sufficiency of

evidence to corroborate the testimony of an accomplice is a question of law which we review

to determine whether it was correct. State v. Fey, 2000 MT 211, ¶ 5, 301 Mont. 28, ¶ 5, 7

P.3d 358, ¶ 5.

¶24 A criminal defendant may not be found guilty of an offense based on the testimony

of another person responsible or legally accountable for the same offense unless the other

person’s testimony is corroborated by other evidence which, in itself and without the aid of

the other person’s testimony, tends to connect the defendant with the commission of the

offense. Section 46-16-213, MCA. Corroborating evidence need not extend to every fact

to which the accomplice testifies. State v. Ungaretti (1989), 239 Mont. 314, 318, 779 P.2d

923, 925. We have elaborated the test for sufficiency of evidence as follows:

To be sufficient, corroborating evidence must show more than that a crime was
in fact committed or the circumstances of its commission. It must raise more
than a suspicion of the defendant’s involvement in, or opportunity to commit,
the crime charged. But corroborative evidence need not be sufficient, by

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 itself, to support a defendant’s conviction or even to make out a prima facie
case against him. Corroborating evidence may be circumstantial and can
come from the defendant or his witnesses. [Emphasis added.]

State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. Corroborating evidence is not

insufficient just because it is circumstantial, disputed or even possibly consistent with

innocent conduct; it is up to the jury to resolve such factual questions. State v. Kaczmarek

(1990), 243 Mont. 456, 460, 795 P.2d 439, 441 (citation omitted).

¶25 We conclude the District Court correctly determined the accomplice testimony was

corroborated by sufficient independent circumstantial evidence submitted to the jury.

Setting aside the testimony of Staley entirely, the jury in the present case heard eye-witness

testimony Burkhart pursued two men towards the place where, and the time when, Ledeau

was walking home. The jury also heard Burkhart was extremely angry, exclaiming, “I am

going to kill the fucker that broke into [my] car.” Smith-Sterner testified Burkhart

confronted someone resembling Ledeau in the alley. Jurors also heard evidence that an

altercation probably ensued in the alley. Burkhart subsequently told police he chased after

someone resembling Ledeau. Police found Ledeau’s body several feet away from the initial

confrontation spot with at least four severe blows to the head. In particular, two skull

wounds that produced a depression were matched with the ball-peen hammer found in

proximity to Ledeau’s body. Further, the shape and the size of the fractures in Ledeau’s

skull were a signature of the instrument and account for the multiple fractures. The District

Court correctly concluded Staley’s accomplice testimony was corroborated by sufficient

independent evidence submitted to the jury.

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¶26 Accordingly, we affirm the District Court’s conclusion.

ISSUE TWO

¶27 Whether the District Court correctly denied Burkhart’s motion to dismiss and

deprived him of due process on the grounds the predicate offense for felony-murder was

an assault with a weapon?

¶28 First, Burkhart argues the State abridged his due process rights because the predicate

offense underlying his felony-murder charge was not independent of the homicide.

Burkhart’s contention is the principle of merger prevents charging him with felony-murder

when the predicate offense, felonious assault with a weapon, is an integral part of the

homicide. In other words, Burkhart asserts where the only felony committed was the assault

upon the victim which resulted in the victim’s death, the assault should merge with the

killing and cannot be relied upon by the State as an ingredient of a felony-murder. Burkhart

also argues the charge of felony-murder under the facts of this case precludes him from

raising certain defenses and lesser included offenses available under the deliberate homicide

statute and thereby denies him due process of law. See § 45-5-103(2), MCA, and § 45-5-

104(2), MCA. Thus, Burkhart maintains the felony-murder rule punishes all homicides,

committed in the course of proscribed felonies whether intentional, unintentional or

accidental, without the necessity of proving the relation between the homicide and the

perpetrator’s state of mind.

¶29 The State counters the felony-murder statute found in § 45-5-102(1)(b), MCA, as

written and intended by the Montana Legislature, does not require merger. The State also

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maintains Burkhart was properly convicted under the felony-murder statute because he

knowingly and purposely caused bodily injury to Ledeau with a hammer which resulted in

Ledeau’s death.

¶30 Second, Burkhart asserts his due process rights were abridged because the State was

relieved from having to prove a specific mental state for homicide. Burkhart maintains the

felony-murder charge eliminates the State’s burden of proving he purposely or knowingly

caused the death of Ledeau. Thus, Burkhart argues the felony-murder charge allows the

State to “bootstrap” a homicide charge on the basis of a felonious assault, circumventing the

mental state requirements of the deliberate homicide statute.

¶31 The State counters Burkhart’s conduct created a dangerous circumstance and thus, the

mental state to commit the felony was properly supplied for all consequences, including the

homicide. The State asserts there is little difference between proving Burkhart purposely and

knowingly struck Ledeau with a ball-peen hammer, thus causing his injury and consequently

death, and proving he purposely or knowingly caused Ledeau’s death.

¶32 The grant or denial of a motion to dismiss in a criminal case is a question of law

which is reviewed de novo. State v. Adgerson, 2003 MT 284, ¶ 24, 318 Mont. 22, ¶ 24, 78

P.3d 850, ¶ 24. This Court’s standard of review is plenary, and we determine whether a

district court’s conclusion is correct. State v. Beanblossom, 2002 MT 351, ¶ 9, 313 Mont.

394, ¶ 9, 61 P.3d 165, ¶ 9.

¶33 The felony-murder doctrine comes to us through the common law making one who

causes another’s death during a felony responsible for murder. The first formal statement

13
of the doctrine is often said to be in Mansell & Herbert’s Case. (See Note, Felony Murder

as a First Degree Offense: An Anachronism Retained, 66 Yale L.J. 427, 428 n.15 (1957)).

Herbert and a group of more than forty followers had gone to Sir Richard Mansfield’s house

under pretense of lawful authority to seize goods by force. One of Herbert’s servants threw

a stone at a person in the gateway which instead hit and killed an unarmed woman coming

out of Mansfield’s house. The question at trial was whether the accused was guilty of

murder or manslaughter. The court assumed that the throwing of the stone was not a careless

act but rather the servant who threw the stone intended at least to hit, if not kill, some person

on Mansfield’s side. The court thus held that if one deliberately performed an act of

violence to third parties, and a person not intended dies, it was murder regardless of any

mistake or misapplication. Mansell & Herbert’s Case, 2 Dyer 128b; 73 Eng.Rep. 279 (KB,

1558).

¶34 After its early enunciation, the felony-murder doctrine went unchallenged because at

that time practically all felonies were punishable by death. Note, Felony Murder as a First

Degree Offense: An Anachronism Retained, 66 Yale L.J. 427, 428 n.15 (1957). It was,

therefore, of no particular consequence whether the condemned was hanged for the initial

felony or for the death accidentally resulting from the felony. Case law of the nineteenth

century, however, reflects the efforts of the English courts to limit the doctrine by requiring

the underlying felony involve violence or be the “natural and probable consequence of the

defendant’s conduct . . . .” 2 Wayne R. LaFave, Substantive Criminal Law, § 14.5 at 446-47

(2d ed. 2003). In the twentieth century, the felony-murder doctrine was rarely invoked in

14
England and in 1957, abolished. Opponents of the doctrine pointed out that in later years,

numerous offenses which were once regarded as gross misdemeanors or misdemeanors had

been made felonies by statutory enactment, many of which were malum prohibitum rather

than malum in se. These changes, it was argued, made the felony-murder rule too harsh.

Prevezer, The English Homicide Act: A New Attempt to Revise the Law of Murder, 57

Colum.L.Rev. 624, 635 (1957).

¶35 While some states have recently abolished the felony-murder doctrine as passed down

through the common law (see Hawaii Rev.Stat., § 707-701), others have expressly limited

its provisions. In particular, some jurisdictions limit the underlying felony and its manner

of commission to a high risk of causing death (see e.g. Commonwealth v. Bowden (Penn.

1973), 309 A.2d 714) while others require the defendant’s conduct be the proximate or legal

cause of the victim’s death (see e.g. State v. Mauldin (Kan. 1974), 529 P.2d 124). Still

others have circumscribed its application by requiring the underlying felony be independent

of the homicide. (See e.g. People v. Ireland (Cal. 1969), 450 P.2d 580). Burkhart urges this

Court to adopt the latter. We decline.

¶36 Montana’s felony-murder statute provides that a person who causes the death of

another during the course of an enumerated felony is criminally responsible for the death:

(1) A person commits the offense of deliberate homicide if: . . . ,
....
(b) the person attempts to commit, commits, or is legally accountable for the
attempt or commission of . . . assault with a weapon . . . or any other forcible
felony and in the course of the forcible felony or flight thereafter, the person
or any person legally accountable for the crime causes the death of another
human being.

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Section 45-5-102(1)(a)-(b), MCA. This Court has held the purpose of the felony-murder rule

is to ensure that people who engage in dangerous acts likely to result in death are held

responsible for any resulting deaths, whether or not the acts were planned or premeditated.

State v. Nichols (1987), 225 Mont. 438, 449, 734 P.2d 170, 176. The felony-murder rule

creates an alternate means of holding one responsible for reckless actions likely to result in

death. Thus, the only causal connection required “is that the death actually occurred during

the underlying felony or the flight thereafter.” State v. Cox (1994), 266 Mont. 110, 119, 879

P.2d 662, 668.

¶37 When interpreting statutes, the role of this Court “is simply to ascertain and declare

what is in terms or in substance contained therein, not to insert what has been omitted or to

omit what has been inserted.” Section 1-2-101, MCA. Where the language is clear and

unambiguous, no further interpretation is required. State v. Montana Thirteenth Judicial

District Court, 1998 MT 34, ¶ 15, 288 Mont. 27, ¶ 15, 955 P.2d 639, ¶ 15. However, as

Burkhart’s attorney attempted to make clear at oral argument, the question confronting this

Court is not whether the statute is unconstitutional on its face. Instead, Burkhart asks this

Court to consider whether the statute, as applied to the facts of this case, unnecessarily

deprives a defendant of the due process of law when he is convicted of felony-murder and

the underlying felony is integral to the homicide.

¶38 The facts of this case disclose Burkhart struck Ledeau once, chased after him, and

stuck him several more times, causing his death. Montana’s felony-murder statute

specifically contemplates the facts at hand when, “in the course of the forcible felony, any

16
person legally accountable for the crime causes the death of another human being.” Section

§ 45-5-102, MCA. Montana’s statute does not require the death to be “in furtherance” of the

threshold crime, only that the homicide occur in the course of the enumerated forcible

felony. Further, we have held the only causal connection required “is that the death actually

occurred during the underlying felony or the flight thereafter.” Cox, 266 Mont. at 119, 879

P.2d at 668. Evidence at trial indicates Burkhart encountered Ledeau in the alley and

physically confronted him. Burkhart then chased after Ledeau where he was eventually

found dead. We conclude that Burkhart’s underlying offense was assault with a weapon, a

forcible felony, and an offense encompassed under Montana’s felony-murder statute. Under

the circumstances Burkhart’s due process rights were not abridged.

¶39 Burkhart next maintains the felony-murder rule punishes all homicides, committed

in the course of proscribed felonies whether intentional, unintentional or accidental, without

the necessity of proving the relation between the homicide and the perpetrator’s state of

mind. Burkhart argues the charge of felony-murder under the facts of this case precludes

him from raising certain defenses and lesser included offenses available under the deliberate

homicide statute and thereby denies him due process of law. This Court has held, “[A] trial

court need not give an instruction on a lesser-included offense when there is no evidence to

support it. A lesser-included offense instruction is not supported by evidence when the

defendant’s evidence or theory, if believed, would require an acquittal.” State v. German,

2001 MT 156, ¶ 11, 306 Mont. 92, ¶ 11, 30 P.3d 360, ¶ 11. The District Court in German,

for example, refused the defendant an instruction on the lesser-included offense of negligent

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homicide because he consciously shot the victim. German, ¶ 14. Evidence presented at trial

here indicates Burkhart was angry about his car and exclaimed, “I am going to kill the fucker

that broke into [my] car.” An instruction for mitigated deliberate homicide would have

required evidence of extreme mental or emotional distress for which could be reasonably

explained or excused. State v. Brown, 2003 MT 166, ¶ 20, 316 Mont. 310, ¶ 20, 71 P.3d

1215, ¶ 20. No evidence of this nature was presented or any other evidence to justify a

lesser-included offense of deliberate homicide. Although Burkhart gave notice of possible

defenses of mistaken identity and justifiable use of force, there was no evidence to warrant

such instructions be read to the jury. In the absence of such evidence, there is no due process

right to a lesser-included offense instruction. German, ¶ 11.

¶40 Burkhart also asserts his due process rights were abridged because the State was

relieved from having to prove a specific mental state for homicide. Burkhart maintains the

charge for felony-murder, with no predicate offense but the assault with a weapon, eliminates

the state’s burden of proving he purposely or knowingly caused Ledeau’s death. Burkhart

argues all homicide charges require a showing of the necessary mental state whether

deliberate, mitigated or negligent while felony-murder only requires a showing of intent to

do the underlying felony.

¶41 Under the felony-murder rule, Burkhart’s purpose and knowledge to commit felony-

murder was presumed when he assaulted Ledeau with a hammer, causing Ledeau’s death.

This Court has held “[w]hen a defendant commits a felony such as burglary, kidnapping or

aggravated assault, he initiates conduct which creates a dangerous circumstance. Therefore

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the intent to commit the felony supplies the intent for all the consequences, including

homicide, arising therefrom.” State v. Nichols (1987), 225 Mont. 438, 449, 734 P.2d 170,

176.

¶42 In enacting the felony-murder rule, the Legislature found the homicidal risk is greater

when there is a commission of a felony and that the protection of the person from this

increased risk warranted greater penalties. The Criminal Law Commission Comment, on

which the Legislature relied in enacting § 94-5-102 R.C.M. 1947, now § 45-5-102, MCA,

stated:

Section 45-5-102, MCA, relates only to conduct which is done deliberately;
that is, purposely or knowingly. The enumerated offenses in subsection (b)
broaden the old law dealing with felony-murders . . . to include any felony
which involves force or violence against an individual. Since such offenses
are usually coincident with an extremely high homicidal risk, a homicide
which occurs during their commission can be considered deliberate homicide.

Clearly, the Legislature properly allowed and broadened the law relating to the felony-

murder rule. Indeed, it appears the Legislature specifically enumerated specific felonies

which are to be included within the felony-murder category. Quoting from a treatise on the

subject, this Court has noted, “It is not the purpose of the felony-murder rule to foist

authorship of a homicide upon a felon; the purpose is merely to clothe the felon’s act of

killing with malice.” State v. Weinberger (1983), 206 Mont. 110, 115, 671 P.2d 567, 569

(quoting 2 Wharton’s Criminal Law (14th ed.) 221, § 149). Thus, in construing the felony-

murder statute, it is the mental state which is imputed to the felon for an assault incidental

to the homicide, not the act of killing.

¶43 The dissent frames this Court’s argument in the context of the Supreme Court’s

19
decision in Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39,

which held if a state defines an element of a crime that must be proved by the prosecution,

that burden cannot be shortcut by use of an evidentiary presumption. The dissent maintains

the felony-murder rule creates a conclusive presumption of the defendant’s murderous intent

from his intent to commit the underlying felony and thereby retains intent as an element of

the offense of felony murder. Diss. Op., ¶ 74. We have maintained however, the state does

not bear the burden to prove an intent to kill, stating, “[i]ntent as such is not an element

under the felony murder rule.” Sunday, 187 Mont. at 307, 609 P.2d 1197. Thus, Sandstrom

is inapposite: we are not considering a conclusive presumption of mens rea. A jury has not

been instructed to presume an element of the crime from some other facts, nor has the state

been relieved of its burden to prove a statutory element. Rather, “the state may substitute

proof of the mental state necessary to commit a homicide with proof of the mental state

required to commit the underlying felony.” Nichols, 225 Mont. at 450, 734 P.2d at 177.

¶44 Further, even if the current statute is viewed as creating a presumption, the

presumption at issue here is not analogous to that derided in Sandstrom. The quote from our

holding in Nichols, which the dissent uses to validate its contention the felony-murder rule

creates and retains a conclusive presumption of the defendant’s murderous intent, actually

strengthens our holding here. If the felony-murder rule creates a presumption, it does not

operate to shift a burden from the state to the defendant, but rather “substitute[s] proof of the

mental state necessary to commit a homicide with proof of the mental state required to

commit the underlying felony.” Nichols, 225 Mont. at 450, 734 P.2d at 177. The Legislature

20
has determined a killing committed during a felony is deliberate homicide, felony-murder,

and we are not convinced the statute, were it to be challenged facially, may be

unconstitutional simply because it creates criminal liability for deliberate homicide when the

state has not shown the accused had the intent to kill. See also State v. Reeves (Neb. 1990),

453 N.W.2d 359 (felony murder requires only the intent to commit the underlying felony;

once that intent is proved, it is imputed to the killing, and Sandstrom is inapplicable),

vacated on other grounds, 498 U.S. 964, 111 S.Ct. 425, 112 L.Ed.2d 409 (1990); People v.

Benson (NY 1984), 480 N.Y.S.2d 811 (intent is not an element of the crime of felony

murder, and Sandstrom not implicated); Commonwealth v. Rawls (Penn. 1984), 477 A.2d

540 (equating of intent to kill with intent to commit a serious felony is permissible legislative

decision reflecting the gravity of killing during a serious felony); State v. Sheffield (Tenn.

1984), 676 S.W.2d 542 (statute makes killing during a felony first degree murder and does

not have the effect of shifting burden of proof to defendant). Thus, because the felony-

murder rule does not in fact raise a presumption of the existence of an element of the crime,

it does not violate the due process clause.

¶45 The dissent also seeks to “work the sort of violence” upon Montana’s felony-murder

statute so as to include in it a mens rea element. Diss. Op., ¶ 11. In so doing, the dissent

relies on Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, and

United States v. United States Gypsum (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854,

for the proposition that a culpable mental element provides a rationale for punishment. Diss.

Op., ¶ 7. However, unlike the crimes of conversion or price fixing, which Morissette and

21
United States Gypsum dealt with respectively, felony-murder does contain an element of

intent, albeit not the intent to kill. The perpetrator must intend to engage in dangerous acts

likely to result in death and is thus held responsible for any resulting deaths, whether or not

the acts were planned or premeditated. Nichols, 225 Mont. at 449, 734 P.2d at 176. Further,

the state must carry its burden to prove that felony. As stated above, the Legislature properly

allowed and broadened the law relating to the felony-murder rule. Indeed, it appears the

Legislature expressly enumerated specific felonies which are to be included within the

felony-murder category. The Legislature has decided that an individual who attempts to

commit a felony and who takes a life during the commission of that felony has committed

deliberate homicide, felony-murder. The statute provides notice to such an individual that,

should he or she choose to participate in a serious felony, and should someone be killed, the

felon will be subject to criminal liability for deliberate homicide. We do not believe this is

constitutionally infirm.

¶46 Therefore, we affirm the District Court’s dismissal.

ISSUE THREE

¶47 Whether the District Court abused its discretion when it removed a prospective

juror for cause?

¶48 Burkhart argues the State had a tactical advantage when the District Court erroneously

removed a prospective juror for cause. Burkhart maintains the District Court’s removal of

the prospective juror effectively gave the State an additional peremptory challenge and

requires reversal.

22
¶49 The State counters the juror was properly removed for cause when he indicated a

reluctance to follow laws he found disagreeable and therefore no reversible error occurred.

The State asserts the prospective juror showed an unwillingness to follow seat belt, gun and

forfeiture laws were he to be impaneled, evidencing grounds for disqualification.

¶50 This Court reviews the denial of a challenge to dismiss a juror for cause for abuse of

discretion. State v. Freshment, 2002 MT 61, ¶ 11, 309 Mont. 154, ¶ 11, 43 P.3d 968, ¶ 11.

We will not reverse a district court’s decision regarding a juror’s fitness to serve absent an

abuse of discretion. State v. Good, 2002 MT 59, ¶ 40, 309 Mont. 113, ¶ 40, 43 P.3d 948, ¶

40.

¶51 The bases for challenging potential jurors for cause in Montana are set forth in § 46-

16-115(2)(j), MCA. One specified basis is that a juror has a “state of mind in reference to

the case or to either of the parties that would prevent the juror from acting with entire

impartiality and without substantial prejudice to the substantial rights of either party.”

Section 46-16-115(2)(j), MCA. If voir dire examination raises a serious question about a

prospective juror’s ability to be fair and impartial, dismissal for cause is favored. Freshment,

¶ 11.

¶52 In Freshment, we held the District Court abused its discretion when it failed to

dismiss two jurors for cause due to their consistent and direct statements of bias against the

defendant’s legal defense of a reasonable belief the victim was old enough to consent.

Further, we determined a juror’s retraction of clearly stated bias, whether coaxed by the

court, the prosecution or the defense, could not erase actual prejudice against the substantial

23
rights of the party. Freshment, ¶ 18.

¶53 Based on the voir dire of O’Leary, we hold the District Court did not abuse its

discretion in dismissing the juror for cause. Although O’Leary did not state a bias towards

the exact nature of Burkhart’s defense like Freshment, he stated a bias related to an issue

critical to the outcome of the case: whether he could follow the law as given in light of the

evidence. Although he later qualified his bias when pressed by Burkhart’s attorney, O’Leary

stated he “might have a problem” with being asked to evaluate the facts when he disagreed

with the law. As we stated in Freshment, however, “[c]oaxed recantations in which jurors

state they will merely follow the law, whether prompted by the trial court, the prosecution,

or the defense, do not cure or erase a clearly stated bias which demonstrates actual prejudice

against the substantial rights of a party.” Freshment, ¶ 18. Further, O’Leary showed a more

general bias when he recited a series of laws that he found disagreeable. Specifically,

O’Leary said that he would not necessarily follow the law given him by the court, regardless

of the subject matter of the particular instruction.

¶54 “Because of the right to an impartial jury, and the great expense and inconvenience

that results from retrial, dismissal for cause is favored when a serious question arises about

the juror’s ability to be impartial.” Freshment, ¶ 11. Thus, we hold the District Court did not

abuse its discretion in dismissing the juror for cause.

ISSUE FOUR

¶55 Whether the District Court improperly considered Burkhart’s refusal to admit

guilt or express remorse at his sentencing hearing?

24
¶56 Burkhart maintains the District Court violated his constitutional right to remain silent

when it ordered him to answer questions regarding his involvement in the homicide as well

as any remorse harbored for his actions. Burkhart asserts the District Court violated State

v. Shreves, 2002 MT 333, 313 Mont. 252, 60 P.3d 991, and based its sentencing on his

refusal to admit guilt or show remorse.

¶57 The State responds the District Court’s sentencing was properly based on

recommendations by the prosecution and Burkhart’s probation officer, Burkhart’s criminal

history and the brutality of the offense as well as the lack of remorse. The State maintains

the record is devoid of any suggestion the District Court would have handed down a different

sentence had Burkhart shown remorse.

¶58 We review the imposition of a sentence solely for legality, determining whether the

sentence is within the statutory parameters. State v. McLeod, 2002 MT 348, ¶ 12, 313 Mont.

358, ¶ 12, 61 P.3d 126, ¶ 12. “[A] sentencing court may consider any evidence relevant to

a defendant’s sentence, including evidence relating to the crime,” the defendant’s

background, his character, his mental and physical condition and any other evidence the

court views as having probative value. Shreves, ¶ 13.

¶59 In Shreves, we determined the court considered the defendant’s lack of remorse as a

general factor in deciding the entire sentence. Shreves, ¶ 13. Shreves testified at trial but

invoked his right to remain silent at his sentencing hearing. Although Shreves maintained

his innocence throughout the trial, the court sentenced him based in part on the fact Shreves

showed no remorse, no accountability, and did not explain why the crime occurred. We

25
determined the court “based its sentence in large part on Shreves’ lack of remorse and [the

court] analogized that lack of remorse to Shreves’ silence.” Shreves, ¶ 20. We also noted

“[t]he court then based its sentence on Shreves’ failure to ‘give’ the court something about

why the crime happened.” Shreves, ¶ 20. We concluded that while “lack of remorse can be

considered as a factor in sentencing [and its effects on a defendant’s prospective

rehabilitation], we cannot uphold a sentence that is based on a refusal to admit guilt.”

Shreves, ¶ 20. We also held, however, a “court can consider as a sentencing factor a

defendant’s lack of remorse as evidence by any admissible statement made by the defendant

pre-trial, at trial, or post-trial . . . or gleaned, without more, from the manner of the

commission of the offense as demonstrated by the evidence at trial or from other competent

evidence properly admitted at the sentencing hearing.” Shreves, ¶ 21.

¶60 The record does not reflect that the court considered Burkhart’s silence at the

sentencing hearing as lack of remorse. The record similarly does not reflect Burkhart’s

sentence was in large part based upon the fact he refused to take responsibility and admit his

crime. Shreves, ¶ 13. Instead, the record in this case reflects the District Court’s careful

consideration of many relevant factors in sentencing Burkhart. These factors include

recommendations by the prosecution and Burkhart’s probation officer, Burkhart’s criminal

history, the brutality of the offense and Burkhart’s lack of remorse. The District Court

concluded:

Now the reason for this sentence is the brutality of the offense. The court is
shocked by the way this young man died. In addition to that, this is the
defendant’s third felony conviction. In addition to that, this offense was
committed while the defendant was on probation. In addition to that, this

26
 offense was in violation of the conditions of that probation, in that he had left
his assigned area without permission, and that while in Great Falls, that he was
attempting and possibly did buy methamphetamine . . . . Furthermore, the
court finds the defendant completely and totally without remorse. The court
does not have a shred of hope of rehabilitation of this young man . . . . In
addition . . . I’m following the recommendation of the State of Montana
through the county attorney’s office and through the recommendation of Adult
Probation and Parole.

¶61 The record thus indicates the District Court did not violate our pronouncement in

Shreves when it considered Burkhart’s lack of remorse in the context of his ability to be

rehabilitated, finding the former and not the latter. Shreves, ¶ 20. Although Burkhart

maintains the court bombarded him with questions regarding his convictions, chastised him

for maintaining his innocence, and condemned him for failing to show remorse for the

homicide, the record at sentencing instead shows the District Court’s consideration of, “the

defendant’s background, his character, his mental and physical condition and any other

evidence the court views as having probative value.” Shreves, ¶ 13.

¶62 We conclude the District Court did not sentence Burkhart more harshly because he

failed to admit he committed the charged offense. Accordingly, we affirm the sentence of

the District Court.

27
¶63 The judgment of the District Court is affirmed.

/S/ JIM REGNIER

We Concur:

/S/ KARLA M. GRAY
/S/ PATRICIA O. COTTER
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE

28
Justice Patricia O. Cotter concurs.

¶64 I concur in much that is said in Justice Leaphart’s Dissent. I too am uneasy with the

fact that application of the felony-murder doctrine can impermissibly raise a conclusive

presumption of intent to murder from an act which, standing alone, could not supply such

a motive. However, as the Court points out, we are faced in this case with an “as applied”

challenge of the doctrine, so we must examine whether application of the doctrine has

constitutional implications for Burkhart given the particulars of his crime. Because I

conclude it does not, I am voting to affirm.

¶65 The ferocity of Burkhart’s assaults on Ledeau that led to his death did, in my

judgment, supply the intent for murder. This being so, we are not confronted with the

situation where a presumption of guilt is imposed upon a set of facts which do not otherwise

raise or establish a murderous intent. When and if such a case presents itself to this Court,

an “as applied” challenge will likely resonate well with me. However, this is not such a case.

I would therefore affirm.

/S/ PATRICIA O. COTTER

Justice James C. Nelson joins in the concurrence of Justice Patricia O. Cotter.

/S/ JAMES C. NELSON

29
Justice W. William Leaphart dissenting.

¶66 Because I believe that the felony-murder statute under which the Appellant was

charged is fundamentally defective under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution, I dissent.

¶67 Although the Court recites the history of the felony-murder rule,1 with special

reference to the various limitations which courts have imposed upon it in an effort to mitigate

some of the more illogical and legally troubling results of its application,2 the opinion does

not, to my mind, properly confront the rationale behind the limitation which the Appellant

cites. The merger doctrine precludes assaultive offenses from providing the basis for a

charge of felony murder, when the victim of the assault is also the victim of the

homicide–that is, when the assault is an ingredient of the homicide, or is included within it

in fact, even (in the doctrine’s most robust form) if not in law. See Robert L. Simpson,

Application of the Felony-Murder Doctrine Where the Felony Relied Upon is an Includible

Offense with the Homicide, 40 A.L.R.4th 1341 (1971). In doing so, the doctrine seeks to

prevent the worst results of the felony-murder rule’s having dispensed with a mens rea

element for the murder charge. As the Illinois Court of Appeals has explained, “Unless

application of the felony-murder rule is limited to cases in which a killing occurs during the

commission of a felony consisting of conduct other than that inherent in the killing itself, all

deliberate killings and all fatal shootings may be charged as felony murder.” People v.

1
See also People v. Aaron (Mich. 1980), 299 N.W.2d 304; Wayne R. LaFave,
Substantive Criminal Law § 14.5(a) (2nd ed. 2003).
2
Maj. op., ¶ 35.

30
Morgan (Ill.App. 1999), 718 N.E.2d 206, 211. All homicides could be charged as felony

murders, because all homicides, by definition, include an initial assault upon the victim.

Thus, “the felony that eliminates the quality of the intent must be one that is independent of

the homicide and of the assault merged therein . . . .” People v. Moran (N.Y. 1927), 158

N.E. 35, 36 (Cardozo, C.J.). See also Ragland v. Hundley (8th Cir. 1996), 79 F.3d 702, 705

n.4 (merger doctrine intended “to avoid the prosecution’s bootstrapping a simple homicide

to a higher degree of murder without showing the requisite intent”).

¶68 The statute which embodies Montana’s version of the felony-murder rule specifies

both simple and aggravated assault as underlying offenses to felony murder. Section 45-5-

102(1)(b), MCA. It is thus not subject to a construction that would incorporate the merger

doctrine, for where the language of the statute is clear and unambiguous, the statute speaks

for itself and we will not resort to other means of interpretation. Moreover, this Court is

required to simply ascertain and declare what is in terms or in substance found in the statute,

neither inserting what has been omitted, nor omitting what has been inserted. Hilands Golf

Club v. Ashmore, 2002 MT 8, ¶ 20, 308 Mont. 111, ¶ 20, 39 P.3d 697, ¶ 20. Nonetheless,

the merger doctrine’s focus upon mens rea provides the key to why our felony-murder statute

violates the Due Process Clause.

¶69 Section 45-5-102(1), MCA, does not facially require a mens rea element in order to

charge murder based on the homicide. The statute reads, in pertinent part:

A person commits the offense of deliberate homicide if: (a) the person
purposely or knowingly causes the death of another human being; or (b) the
person attempts to commit, commits, or is legally accountable for the attempt
or commission of robbery . . . or any other forcible felony and in the course of

31
 the forcible felony or flight thereafter, the person or any person legally
accountable for the crime causes the death of another human being.

¶70 This Court has interpreted § 45-5-102(1), MCA, accordingly. In State v. Sunday

(1980), 187 Mont. 292, 307, 609 P.2d 1188, 1197, we stated that “[i]ntent as such is not an

element under the felony-murder rule. . . . Intent was no longer an issue under the felony-

murder statute once it was shown by the evidence that” the defendant committed the

underlying felony. In State v. Nichols (1987), 225 Mont. 438, 449-50, 734 P.2d 170, 177,

this substantive rule of law was presented as a rule of evidence: “Under the felony-homicide

statute, the state has not been relieved of the burden of proving an element of a crime.

Rather, the method of proving one of the elements has been changed. The state may

substitute proof of the mental state necessary to commit a homicide with proof of the mental

state required to commit the underlying felony.” See also Sandstrom v. Montana (1979), 442

U.S. 510, 517, 99 S.Ct. 2450, 2456, 61 L.Ed.2d 39, 46-47; People v. Dillon (Cal. 1983), 668

P.2d 697, 717-18.

¶71 Section 45-5-102(1), MCA, thus defines a distinct offense with its own unique set of

elements: an underlying felony and a death deriving from it, with no intent required for the

homicide to be charged to the defendant as a murder. See Wayne R. LaFave & Austin W.

Scott, Jr., Criminal Law § 7.5 at 622 n.2 (arguing that felony murder is a category separate

from intent-to-kill murder). The homicide is the elevating factor for the purposes of both

stigma and sanction, the discrimen between the underlying felony and felony murder. For

example, the maximum punishment for simple assault under § 45-5-201(2), MCA, is a five-

hundred-dollar fine and six months of incarceration in the county jail; aggravated assault is

32
punished under § 45-5-202(2), MCA, by at most a fine of fifty thousand dollars and twenty

years’ imprisonment. When either felony is coupled with a death under § 45-5-102(1),

MCA, however, the maximum potential penalty is increased to life imprisonment, and the

convict is termed a murderer, without the intent element for murder having been proven by

the State.

¶72 This plainly violates the Due Process Clause of the Fourteenth Amendment, as that

provision has been interpreted by the United States Supreme Court in Morissette v. United

States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, and United States v. United States

Gypsum Co. (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 L.Ed.2d 854. In Morissette, the Court

required that a statute which criminalized the theft of federal property be read to include the

mens rea element of intent. In a famous passage, Justice Jackson wrote:

The contention that an injury can amount to a crime only when inflicted by
intention is no provincial or transient notion. It is as universal and persistent
in mature systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose between good
and evil. A relation between some mental element and punishment for a
harmful act is almost as instinctive as the child’s familiar exculpatory “But I
didn’t mean to,” and has afforded the rational basis for a tardy and unfinished
substitution of deterrence and reformation in place of retaliation and
vengeance as the motivation for public prosecution.

Morissette, 342 U.S. at 250-51, 72 S.Ct. at 243, 96 L.Ed. at 293-94.

¶73 In United States Gypsum, furthermore, the Court held that intent is a necessary

element in a prosecution for a non-regulatory offense. United States Gypsum, 438 U.S. at

436-38, 98 S.Ct. at 2873-74, 57 L.Ed.2d at 869-70.

33
¶74 Alternatively, certain language in the Court’s opinion, and in Nichols, seems to frame

the felony-murder rule as a conclusive presumption of the defendant’s murderous intent from

his intent to commit the underlying felony, retaining intent as an element of the offense of

felony murder. The Court writes: “Under the felony-murder rule, Burkhart’s purpose and

knowledge to commit felony murder was presumed when he assaulted Ledeau with a

hammer, causing LeDeau’s death.” Maj. op., ¶ 41. The Court goes on to quote Nichols for

the proposition that intent to commit the underlying felony somehow “supplies the intent”

for murder. Maj. op., ¶ 41 (citing Nichols, 225 Mont. at 449, 734 P.2d at 176). If we are to

take these statements at face value, the felony-murder doctrine is unconstitutional under

Sandstrom, in which the United States Supreme Court held that a conclusive presumption

of guilt as to any element of an offense violates the Due Process guarantee.

[T]he trial court may not withdraw or prejudge the issue by instruction that the
law raises a presumption of intent from an act. . . . A conclusive presumption
which testimony could not overthrow would effectively eliminate intent as an
ingredient of the offense. . . . A presumption which would permit the jury to
make an assumption which all the evidence considered together does not
logically establish would give to a proven fact an artificial and fictional effect.
In either case, this presumption would conflict with the overriding
presumption of innocence with which the law endows the accused and which
extends to every element of the crime.

Sandstrom, 442 U.S. at 522, 99 S.Ct. at 2458, 61 L.Ed.2d at 49-50 (quoting the holding of

Morissette, 342 U.S. at 274-75, 72 S.Ct. at 255-56, 96 L.Ed. at 306-07); see also Dillon, 668

P.2d at 716-17 (“[w]e start with the indisputable fact that if the effect of the felony-murder

rule on malice is indeed a ‘presumption,’ it is a ‘conclusive’ one”); State v. Ortega (N.M.

34
1991), 817 P.2d 1196, 1204 (by interpreting felony-murder rule to presume murderous intent

from intent to commit underlying felony, “one runs headlong into Sandstrom”).

¶75 When this Court reviews the constitutionality of a legislative enactment, we will

presume the statute to be constitutional and will uphold the statute on review except when

it is proven to be unconstitutional beyond a reasonable doubt. State v. Folda (1994), 267

Mont. 523, 525-26, 885 P.2d 426, 427. We will, moreover, seek to construe the statute in

such a way as to find it constitutional, if possible. State v. Martel (1995), 273 Mont. 143,

148, 902 P.2d 14, 17. In the present context, it seems clear to me that the only way in which

to save § 45-5-102(1), MCA, is to construe it to include a mens rea element. This was the

approach taken by the New Mexico Supreme Court in Ortega. See also Robbins v. State

(1854), 8 Ohio St. 131 (held, that in a statute providing that if any person shall “purposely,

and of deliberate and premeditated malice, or in the perpetration, or attempt to perpetrate,

any rape, arson, robbery, or burglary . . . kill another” such person should be deemed guilty

of murder in the first degree, the word “purposely” modified each of the following clauses).

¶76 Unfortunately, I believe that the statute forecloses such an approach. The Ohio statute

which that state’s Supreme Court subjected to interpretation was of far looser and more

ambiguous structure than is our own. Section 45-5-102(1), MCA, by contrast,

unambiguously provides that a defendant may be found guilty of murder upon proof only of

his having committed a felony and having caused a death thereby. Section 45-5-102(1)(a),

MCA (“the person purposely or knowingly causes the death of another human being; or . . .”

(emphasis added)). Out of deference to our coequal branch of government, therefore, I will

35
not attempt to work the sort of violence upon the statute at issue that the necessary

interpretation would require.

¶77 The felony-murder rule is based on the ancient idea that the defendant is an evil

person who has committed a bad act, and therefore should be held maximally responsible for

all the consequences that flow therefrom, whether he intended them in any sense, or not. See

Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 560 (1972). The law once deemed

this an adequate arrangement, that a defendant could be punished criminally for results which

he may have in no wise intended, and this indifference to the actual culpability of the

individual is amply evidenced in the felony-murder rule’s failure to prescribe a mens rea

element for a finding of murder-guilt. The law, however, has long since progressed beyond

this point, a development reflected in the Due Process jurisprudence of the Supreme Court

of the United States.

¶78 Make no mistake: I have no sympathy whatsoever for the Appellant. His actions,

besides being horrific in themselves, clearly caused the death of another human being, and

he should be held accountable to the full extent of the law. But a charge of deliberate

homicide under § 45-5-102(1)(a), MCA, would have been more appropriate and far less

constitutionally troubling. No intensity of personal sentiment, however valid and well-

intentioned, can strip this defendant, or any other, of the guarantee of Due Process of law.

The remarkable procedure for circumventing the principles of Sandstrom, set forth in Nichols

and subscribed to today by the Court, is nothing more than a parlor trick, unworthy of this

honorable Court and of our system of justice. The principles enshrined in the Due Process

36
Clause call for the repudiation of the felony-murder rule, and an affirmation of the idea of

punishment for individual culpability.

/S/ W. WILLIAM LEAPHART

37