State v. Dubois

No. 04-695

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 89

_______________________________________

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RODNEY DUBOIS,

Defendant and Appellant.

______________________________________

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade, Cause No. BDC 2003-147
The Honorable Julie Macek, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeffrey L. Olson, Attorney at Law, Great Falls, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant
Attorney General, Helena, Montana

Brant S. Light, County Attorney; Susan Weber and Mary Ann Ries,,
Deputy County Attorneys, Great Falls, Montana

____________________________________

Submitted on Briefs: August 30, 2005

Decided: April 25, 2006
Filed:

______________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.

¶1 Rodney Dubois (Dubois) appeals from his conviction of Deliberate Homicide in

the Eighth Judicial District Court, Cascade County. He contests the fairness of his trial

on multiple grounds. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in its jury instruction no. 12 concerning the requisite

mental state for deliberate homicide?

¶4 2. Did the District Court err in failing to give a specific instruction on proximate

cause?

¶5 3. Was Dubois’ counsel ineffective in not offering an instruction on proximate

cause?

¶6 4. Did the District Court err in denying Dubois’ motion for a mistrial because the

prosecutor, in cross-examining a defense witness, described him as a gangster?

¶7 5. Did the District Court err in not granting Dubois a mistrial because, in closing

argument, the prosecutor used the word “lie” in referring to a statement by Dubois?

BACKGROUND

¶8 The events leading to this appeal occurred on March 15, 2003. Dubois chose to

testify at his trial. According to Dubois, he went to the home of Dion Guckeen

(Guckeen) with his friend Herman Belgarde (Belgarde) to procure methamphetamine.

While Belgarde was in another room, Guckeen told Dubois that he was a paranoid

schizophrenic and could get away with killing Dubois. Dubois went into the other room

and related these statements to Belgarde. Belgarde told Dubois not to worry and gave

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him a small baseball bat. When Dubois and Belgarde left the room, they found Guckeen

holding a gun. Belgarde took the gun from Guckeen, removed all the bullets except one,

and gave the gun back to Guckeen. Dubois left Guckeen’s house and eventually got a

ride back to his home from a local resident, to whom Dubois gave the bat.

¶9 Dubois said that Belgarde then called him, telling him to come back to Guckeen’s

house because methamphetamine was available there, and that he could safely return.

Dubois said he tried to drive to Guckeen’s house but got lost, and Belgarde sent friends to

pick him up. Dubois took a large flashlight with him for defense. When Dubois arrived,

there was no methamphetamine. Guckeen accused Dubois of sleeping with his girlfriend,

which Dubois denied. Dubois then said that Guckeen pulled a gun from under a cushion

he was sitting on. Dubois grabbed another baseball bat and left Guckeen’s house with

Belgarde, Linda Scott (Scott), and Misty Palmerton (Palmerton).

¶10 Dubois went on to say that, after dropping off Belgarde, he stayed with Scott and

Palmerton, who promised they were going to go party. The three went back to

Guckeen=s house, where Dubois felt a tense atmosphere. Guckeen kept looking at

Dubois and then at the cushion where the gun had previously been. Guckeen then

reached under that same cushion, and Dubois, thinking Guckeen was reaching for the gun

he had seen earlier, hit him in the head with the baseball bat. Dubois did not think the

first hit had done anything to Guckeen, so he hit Guckeen twice more in the head.

Dubois thus claimed that he acted in self defense.

¶11 According to Dubois, another man in the room, Tony Sambenedetto

(Sambenedetto), appeared to be reaching for another bat, and Dubois told him not to.

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Sambenedetto then left. Dubois did not admit hitting Sambenedetto with the bat.

¶12 Dubois said Scott told him to call 911, which required him to leave the house.

Palmerton went with Dubois, who took the bat. When they returned to the house,

Palmerton suggested that they all lie to the police and say that they found Guckeen

already injured, and she said she would tell Scott what to tell the police. Dubois initially

lied to the police about what happened, saying that he found the bat and held it in

safekeeping for the authorities. After Dubois learned that Palmerton and Scott had told

the police what actually happened, he explained why he hit Guckeen with the bat.

¶13 The State’s witnesses contradicted many parts of Dubois’ story. According to

Scott, she had been at the house earlier in the day when Guckeen, Dubois, Belgarde, and

Sambenedetto were all present, and they appeared to be just sitting around talking. When

Scott returned later with Palmerton, she heard neither arguing nor an exchange of bad

words.

¶14 Palmerton said she saw Dubois hit Guckeen in the head with the bat, and she

yelled at Dubois as he walked away. Dubois then turned and headed back toward

Guckeen. Palmerton jumped in front of Dubois, but he threw her into the wall and hit

Guckeen in the head again. Palmerton then saw Dubois approach Sambenedetto, who put

his arms up for protection. Dubois swung the bat at Sambenedetto’s arms and told him to

leave. According to Palmerton, Dubois told her to lie and say they found the baseball bat

in the driveway. However, after the police put Palmerton and Scott in a car away from

Dubois, Palmerton explained how Dubois had attacked Guckeen.

¶15 Sambenedetto testified that Dubois hit him with the bat.

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¶16 According to Palmerton, Scott, and Sambenedetto, Guckeen did not have a gun on

March 15, 2003, and none of them heard Guckeen threaten Dubois or argue with him. A

friend of Guckeen’s, Tiffany Cook, also said Guckeen did not have a gun that day, and

she had never seen a gun at Guckeen’s house. No gun was found in the house.

¶17 Dr. Glenn Winslow (Dr. Winslow), a trauma surgeon, and Dr. Karen Fagin (Dr.

Fagin), a neurosurgeon, treated Guckeen at Benefis Hospital. Guckeen was comatose

and completely unresponsive. His breathing was alternately rapid and slow, which

implied damage to the brain stem as well as to the brain itself. Guckeen exhibited limited

brainstem function. Guckeen’s treatment included intubation in order to force rapid

breathing in an attempt to ease the pressure inside his head, as well as morphine to both

ease pressure and alleviate pain. The amount of morphine administered to Guckeen was

increased slowly during his time at the hospital.

¶18 Guckeen’s family did not want extraordinary measures taken to keep him alive

after being told he would likely never be aware again. Eventually, his breathing tube was

removed because he could breathe on his own. Guckeen died on March 17, 2003.

¶19 Dr. Fagin explained that she had never seen skull fractures as bad as those suffered

by Guckeen. She described Guckeen’s brain as pulped, and opined that the swelling was

putting pressure on the brainstem. According to Dr. Fagin, barring a miracle, Guckeen

would not have survived no matter what surgery was done.

¶20 Dr. Fagin’s opinion was that Guckeen died of traumatic brain injury, and neither

morphine nor extubation contributed to his death.

¶21 Dr. Winslow’s opinion was that Guckeen died of a blunt trauma to the head

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resulting in a closed head injury, with no contribution from morphine or extubation.

¶22 Dr. Gary Dale, the State Medical Examiner, testified he could not give an opinion

what caused Guckeen’s death to a high degree of certainty. He did, however, state that it

was his opinion that preexisting conditions did not contribute to Guckeen’s death. His

opinion was that, more likely than not, an increased dose of morphine caused Guckeen=s

death. However, in his report he listed the cause of Guckeen’s death as unknown.

¶23 Dr. Daniel Spitz (Dr. Spitz), a forensic pathologist, testified for the defense. After

reviewing Guckeen’s medical records, he gave the opinion that Guckeen died of

respiratory failure caused by injuries to the brain and skull, morphine intoxication and

extubation. In Dr. Spitz’s opinion, Guckeen was never brain dead, and breathing on his

own for over a day suggested his brain stem was relatively intact. Dr. Spitz stated he

could not comment on whether Guckeen’s treatment ended too early, as a proper brain-

death protocol was not performed. He stated he was unable to determine what chance

Guckeen had to survive his injuries. He did agree that the injuries were severe enough to

possibly cause death regardless of treatment, and that the proximate cause of death was

blunt head trauma, which initiated the sequence of events leading to Guckeen’s death.

¶24 Dubois was charged by an amended information with Deliberate Homicide in

violation of ' 45-5-102(1), MCA. He pled not guilty and trial by jury commenced on

January 26, 2004.

¶25 Dubois objected to the District Court’s instruction no. 12. This instruction

provided that the element of purpose or knowledge necessary to convict Dubois of

deliberate homicide could be established even if Dubois did not contemplate that his

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blows with the baseball bat would kill Guckeen, if the result involved the same kind of

injury that was contemplated.

¶26 Dubois’ trial counsel did not offer an instruction on whether his actions were the

proximate cause of Guckeen’s death. Appellate counsel claims this omission was both

plain error and ineffective assistance of counsel.

¶27 One Vicki Algeo (Algeo) testified for the defense at trial. The prosecutor, by use

of a leading question on re-cross examination, elicited from this witness that she felt

Dubois was a gangster. Dubois moved for a mistrial on this ground, which motion was

denied.

¶28 During closing argument, Deputy County Attorney Mary Ann Ries (Ries)

characterized one of Dubois’ statements as a lie. Dubois also moved for a mistrial on this

ground, which motion was denied.

¶29 The jury found Dubois guilty of deliberate homicide. The District Court

sentenced Dubois to Montana State Prison for life without parole. This appeal followed.

STANDARDS OF REVIEW

¶30 This Court reviews jury instructions in a criminal case to determine if they fully

and fairly instructed the jury on the law applicable to the case. The district court has

broad discretion in instructing the jury, and this Court will only find reversible error if a

jury instruction prejudicially affected the substantial rights of the defendant. State v.

Baker, 2004 MT 393, & 14, 325 Mont. 229, & 14, 104 P.3d 491, & 14.

¶31 This Court’s inherent power of common law plain error review is used sparingly,

on a case-by-case basis. Plain error review is undertaken only in those cases that

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implicate a criminal defendant’s fundamental constitutional rights, where failing to

review the claimed error at issue may result in a manifest miscarriage of justice, may

leave unsettled the question of the fundamental fairness of the trial or proceedings, or

may compromise the integrity of the judicial process. State v. Finley (1996), 276 Mont.

126, 137-38, 915 P.2d 208, 215, abrogated in part on other grounds by State v.

Gallagher, 2001 MT 39, & 21, 304 Mont. 215, & 21, 19 P.3d 817, & 21; State v. Hill,

2005 MT 216, ¶ 15, 328 Mont. 253, ¶ 15, 119 P.3d 1210, ¶ 15.

¶32 In considering ineffective assistance of counsel claims, we apply the two-pronged

test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. This Court will only find ineffective

assistance of counsel if the petitioner can show that (1) “counsel’s performance was

deficient or fell below an objective standard of reasonableness,” and (2) “establish

prejudice by demonstrating that there was a reasonable probability that, but for counsel’s

errors, the result of the proceeding would have been different.” State v. Kougl, 2004 MT

243, & 11, 323 Mont. 6, & 11, 97 P.3d 1095, & 11 (quoting State v. Turnsplenty, 2003

MT 159, & 14, 316 Mont. 275, & 14, 70 P.3d 1234, & 14).

¶33 In deciding a motion for mistrial, a district court must determine whether a

defendant has been denied a fair and impartial trial. This Court reviews a district court’s

denial of a motion for mistrial for abuse of discretion. State v. Aceto, 2004 MT 247, &

16, 323 Mont. 24, & 16, 100 P.3d 629, & 16. A district court properly grants a motion

for mistrial when a reasonable possibility exists that inadmissible evidence may have

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contributed to the conviction. State v. Long, 2005 MT 130, & 24, 327 Mont. 238, & 24,

113 P.3d 290, & 24.

DISCUSSION

ISSUE ONE

¶34 Did the District Court err in its jury instruction no. 12 concerning the

requisite mental state for deliberate homicide?

¶35 Dubois argues that giving jury instruction no. 12 was error because it did not fit

the facts of his case and thus was an incorrect and inapplicable statement of the law. He

claims that the giving of this instruction prohibited him from convincing the jury to

acquit him on the deliberate homicide charge, even if the jury determined that Guckeen

did not die because of the blows from the baseball bat, but instead died from the

morphine administered to him in the hospital.

¶36 Instruction No. 12 provided:

If purposely or knowingly causing death was not within the contemplation
or purpose of the Defendant, either element can nevertheless be established
if the result involves the same kind of harm or injury as contemplated but
the precise harm or injury was different or occurred in a different way,
unless the actual result is too remote or accidental to have a bearing on the
Defendant=s liability or on the gravity of the offense.

¶37 Instruction No. 12 is taken from § 45-2-201(2)(b), MCA. We interpret this statute

to mean that the mental state for deliberate homicide can be established if the result

involves the same or similar kind of harm or injury as that which is contemplated by the

defendant, even if the degree of injury actually caused was not contemplated by the

defendant. State v. Clausell, 2001 MT 62, ¶ 41, 305 Mont. 1, ¶ 41, 22 P.3d 1111, ¶ 41.

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¶38 Instruction No. 12, as given by the District Court, did not prevent the jury from

deciding to acquit Dubois of deliberate homicide, and perhaps convict him of assault. If

the jury had believed that Guckeen died from the effects of morphine, rather than the

head injuries he received, it could also have determined that the actual result of Dubois’

actions, death, was too remote or accidental to have a bearing on his liability or on the

gravity of the offense. And, if the jury so determined, the elements of purpose or

knowledge would not have been established, which would in turn result in an acquittal of

the charge of deliberate homicide. Indeed, counsel for Dubois argued to the jury that he

should perhaps be convicted of aggravated assault and not deliberate homicide, because

Guckeen died from morphine, not the blows to the head.

¶39 Instruction No. 12 was a correct statement of the law, was applicable to the facts

of this case, and did not prevent Dubois from raising a reasonable doubt that he was not

guilty of deliberate homicide because Guckeen died from morphine intoxication.

ISSUE TWO

¶40 Did the District Court err in failing to give a specific instruction on proximate

cause?

¶41 Dubois argues that, even though he did not offer a jury instruction on proximate

cause, this Court should invoke the doctrine of plain error to review the failure of the

District Court to give such an instruction, and order a new trial. Dubois argues that

without an instruction on proximate cause the jury lacked the means to make a factual

finding regarding his central theory of the case.

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¶42 In order to undertake plain error review, we must determine that not reviewing the

claimed error will result in a manifest miscarriage of justice, leave unsettled the question

of the fundamental fairness of the trial or proceedings, or compromise the integrity of the

judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215.

¶43 As we explained in our discussion of Issue One, jury instruction no. 12 correctly

stated the law. While this instruction explained that the jury did not need to find that

Dubois intended to kill Guckeen to find him guilty of deliberate homicide, it did require

the jury to determine that Dubois caused Guckeen’s death.

¶44 In addition to instruction no. 12, instruction no. 10 listed the elements of deliberate

homicide, one of which was that Dubois caused the death of Guckeen.

¶45 We conclude that the jury instructions fully and fairly instructed the jury on

deliberate homicide. Thus, the jury was properly instructed. State v. Magruder (1988),

234 Mont. 492, 497, 765 P.2d 716, 719. Under the facts of this case, the lack of a

specific proximate cause instruction did not result in a manifest miscarriage of justice, did

not leave unsettled the question of the fundamental fairness of the trial or proceedings,

and did not compromise the integrity of the judicial process. We decline to exercise plain

error review and determine that a proximate cause instruction was necessary in order for

Dubois to have a fair trial.

ISSUE THREE

¶46 Was Dubois’ counsel ineffective in not offering an instruction on proximate

cause?

¶47 Dubois argues that his trial counsel was deficient in failing to offer an instruction

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on proximate cause because of the defense theory that morphine, not the attack by

Dubois, was the proximate cause of Guckeen’s death. He argues that failing to offer an

instruction on proximate cause prevented the jury from having means to agree with this

theory.

¶48 To assess a claim of ineffective assistance of counsel, both on direct appeal and in

post-conviction proceedings, this Court applies the two-prong test from Strickland. See

Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20; State v.

Hagen, 2002 MT 190, ¶ 17, 311 Mont. 117, ¶ 17, 53 P.3d 885, ¶ 17. The Strickland test

requires the defendant to show that his counsel’s performance was deficient and that the

deficient performance prejudiced the defense and deprived the defendant of a fair trial.

Dawson, ¶ 20. It is not necessary to determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiency. If it is easier to dispose of an ineffectiveness claim on the ground of

lack of prejudice, that course should be followed. State v. DeMary, 2003 MT 307, ¶ 27,

318 Mont. 200, ¶ 27, 79 P.3d 817, ¶ 27 (citing Strickland, 466 U.S. at 697, 104 S.Ct. at

2069, 80 L.Ed.2d at 699).

¶49 In order to satisfy the prejudice prong of the Strickland test, a defendant must

demonstrate that counsel’s errors were so serious that he was deprived of a fair trial. As

we have determined that a proximate cause instruction was not required in order for

Dubois to have a fair trial, his counsel was not ineffective because he did not offer such

an instruction.

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 ISSUE FOUR

¶50 Did the District Court err in denying Dubois’ motion for a mistrial because

the prosecutor, in cross-examining a defense witness, described him as a gangster?

¶51 During trial, Algeo, a friend and roommate of Guckeen, testified for the defense.

During re-cross examination, the following exchange took place between Algeo and

Deputy County Attorney Ries:

Q: And when you and Tony were having this conversation, you were trying
to figure out why it happened; is that fair to say?
A: Yes.
Q: You were trying to figure out why Rodney would beat your good friend,
Dion; is that right?
A: Yes.
Q: And you told the detectives that Dion would never threaten,
especiallyBDion would never threaten his type, referring to Rodney?
A: Yes.
Q: And you explained that Rodney is like a gangster, and Dion would never
threaten him; is that right?
A: Uh-huh.
Q: Detective Phillips asked you if Dion was that aggressive, do you recall
that?
A: Uh-huh.
Q: And you said Dion=s not that stupid.
A: Yes.
Q: And you explained to the detective that Dion’s scared to death, you
know, he’s not a fighter. He doesn’t like fights.
A: Right.
Q: Is that accurate? Is that how Dion was?
A: Yes.

¶52 Dubois moved for a mistrial based upon the reference to him as a gangster. The

District Court denied this motion, but offered to give a curative instruction if Dubois

requested one.

¶53 Dubois argues that the State’s use of the term “gangster” in reference to him

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contributed to his conviction. Dubois argues that the use of this word is inflammatory,

prejudicial and violated multiple rules of evidence. He contends that the use of this term

undermined his theory of justifiable use of force, because it could have swayed one or

more jurors against this theory. Dubois also contends that this term may have caused one

or more jurors to wish to punish Dubois in spite of the evidence.

¶54 Algeo used the term “gangster” in her statement to the police and the State could

properly question her about it. Further, use of the term “gangster,” given all the evidence

at trial, would be unlikely to cause the jury to punish Dubois even if he was not proven

guilty. There was substantial other evidence regarding Dubois’ violent behavior and use

of illegal drugs.

¶55 Considering the circumstances, we conclude the District Court did not abuse its

discretion when it denied Dubois’ motion for a mistrial because of the testimony in

question.

ISSUE FIVE

¶56 Did the District Court err in not granting Dubois a mistrial because, in

closing, the prosecutor used the word “lie” in referring to a statement by Dubois?

¶57 During her closing argument, prosecutor Reis argued to the jury concerning

Dubois’ statements as follows:

And [Deputy] Van Dyken asked, he says, does it have to do with dope?
And [Dubois] says, I can’t say. Why can’t he say? Because it’s a lie.

¶58 Dubois moved for a mistrial because Ries said he lied. The District Court agreed

that the statement was improper, but denied Dubois’ motion. Dubois accepted the

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District Court’s offer of the following instruction, which the District Court read to the

jury:

The Court has determined that it was improper for the state to characterize a
prior statement of Mr. Dubois as a lie. You are instructed that you are to
disregard that portion of the state’s argument.

You are the sole judges of the credibility of all of the witnesses in this case.
You’re further admonished that the closing arguments of counsel are not
evidence and are not to be considered by you as such.

¶59 This Court has strongly disapproved of characterizing testimony as a lie. State v.

Arlington (1994), 265 Mont. 127, 157, 875 P.2d 307, 325. However, we have also

explained that “We are not suggesting that it is reversible error every time counsel

mentions the word ‘lie’ in closing argument.” State v. Stringer (1995), 271 Mont. 367,

380, 897 P.2d 1063, 1071. We did conclude in Arlington that the prosecutor committed

error in repeatedly suggesting that the defendant had lied, but a new trial was not

necessary because of the overwhelming evidence of the defendant’s guilt. Arlington, 265

Mont. at 158, 875 P.2d at 325.

¶60 While Ries’ characterization of a statement by Dubois as a lie was improper, the

District Court immediately gave a clear and cogent corrective instruction to the jury, and

the evidence of Dubois’ guilt was very substantial. The general rule is that where the

trial judge strikes improper statements from the record with an accompanying cautionary

instruction to the jury, any error committed by its introduction is presumed cured. State

v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335; State v. Smith (1986), 220

Mont. 364, 375, 715 P.2d 1301, 1308; State v. Freeman (1979), 183 Mont. 334, 345, 599

P.2d 368, 374. Further, as we discussed in Freeman, the jury cannot be presumed to

15
ignore its duty to respect the instructions of the court. Freeman, 183 Mont. at 345-46,

599 P.2d at 374-75.

¶61 Because the trial court is in the best position to observe the jurors and determine

the effect of questionable statements made in closing argument, it is given a latitude of

discretion in its rulings on motions for mistrial based on such statements. See State v.

Long, 2005 MT 130, ¶ 27, 327 Mont. 238, ¶ 27, 113 P.3d 290, ¶ 27; Brush, 228 Mont. at

252-53, 741 P.2d at 1336. Any prejudicial effect the prosecutor’s statement may have

had was promptly cured by the District Court’s cautionary instruction to the jury. We

conclude, based on the record of this case, that the District Judge did not abuse her

discretion in denying Dubois’ motion for a mistrial.

CONCLUSION

¶62 The judgment and sentence of the District Court of the Eighth Judicial District,

Cascade County, is affirmed.

/S/ JOHN WARNER

We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS

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