State v. Doyle

No. 05-362

IN THE SUPREME COURT OF THE STATE OF MONTANA

2007 MT 125

____________________________________

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KEITH EUGENE DOYLE,

Defendant and Appellant.

____________________________________

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow, Cause No. DC 03-110,
The Honorable Kurt Krueger, Presiding Judge.

COUNSEL OF RECORD:

For Appellant:

Palmer Hoovestal, Hoovestal Law Firm, Helena, Montana
W. M. Hennessey, Hennessey Law Firm, Butte, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana

Robert McCarthy, County Attorney; Michael W. Clague, Samm Cox and
Mollie Maffei, Deputy County Attorneys, Butte, Montana

____________________________________

Submitted on Briefs: January 17, 2007

Decided: May 31, 2007
Filed:

_____________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Keith Eugene Doyle (Doyle) appeals from his conviction in the Second Judicial

District, Silver Bow County, of deliberate homicide by accountability. We affirm.

¶2 Doyle presents the following litany of issues for review:

¶3 1. Whether the State of Montana (State) violated Doyle’s right to speedy trial.

¶4 2. Whether the District Court violated Doyle’s Sixth Amendment right to

confrontation by limiting his cross examination of the State’s witness.

¶5 3. Whether sufficient credible evidence exists to support Doyle’s conviction of

deliberate homicide by accountability.

¶6 4. Whether the District Court properly denied Doyle’s instruction for lesser

included offenses of criminal endangerment and negligent homicide.

¶7 5. Whether the District Court properly instructed the jury on the elements of

“purposely” and “knowingly.”

¶8 6. Whether the District Court abused its discretion in denying Doyle’s motion for

mistrial.

FACTUAL AND PROCEDURAL BACKGROUND

¶9 Richard Solwick (Solwick) was beaten to death inside his Butte apartment on the

night of March 3, 2003. The State charged Dean Maestas (Maestas) and Cheren Day

(Day) with deliberate homicide, or in the alternative, deliberate homicide by

accountability, for Solwick’s murder. Law enforcement officers also named Doyle as a

third suspect in Solwick’s murder. Doyle fled Montana the day after Solwick’s death.

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He absconded to Washington, Southern California, and Missouri before returning to

Butte in late March.

¶10 Butte law enforcement officers arrested Doyle on May 5, 2003. The court set

Doyle’s bail at $250,000. The State charged Doyle on May 30, 2003, with deliberate

homicide, or in the alternative, deliberate homicide by accountability. Maestas and Day

pled guilty to deliberate homicide by accountability. They agreed to testify in Doyle’s

trial in exchange for a lighter sentence. The court set Doyle’s jury trial for December 15,

2003. Doyle moved to continue the trial date on November 4, 2003. He also moved the

court on May 11, 2004, September 9, 2004, and November 23, 2004, to continue

subsequent trial settings. Trial began January 3, 2005.

¶11 Maestas testified that he and Day went to Solwick’s apartment on the night of

March 3, 2003, in search of Doyle. Maestas admitted that he had been drinking at the

Corner Bar, was inebriated, and wanted to fight Doyle because he had heard from

Solwick that Doyle had called him a “punk” who could not be trusted. Meastas testified

that he knocked on the front door, walked inside, and confronted Doyle about what had

been said. A “shoving match” ensued between Doyle and Maestas. Maestas then turned

his attack toward Solwick. He punched and kicked Solwick several times. Maestas also

held a steak knife to Solwick’s throat. The knife left an abrasion on Solwick’s neck, but

did not cut Solwick’s skin. Maestas testified that Doyle became “pretty much upset

about the situation” and began beating Solwick with a hammer. Maestas further testified

that he did not know if Solwick was alive when he left Solwick’s apartment. He went

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home, changed clothes, and returned to Solwick’s apartment only to find him dead on the

living room floor.

¶12 Day provided a similar account. Day testified that she and Maestas left the Corner

Bar to confront Doyle. They walked into Solwick’s apartment. Doyle and Maestas

began to brawl. Day further testified that the attack turned to Solwick because “the

whole melee had been started by a lie that [Solwick] said.” Day testified that both

Maestas and Doyle punched Solwick as he sat in a chair in his living room. Day tipped

the chair over and Solwick fell to the ground. Day testified that Solwick grabbed a

hammer and that Doyle took it away from him. Day testified that she left the apartment

as soon as she saw “a weapon.”

¶13 Doyle testified that he and Solwick had been drinking beer at Solwick’s apartment

when Maestas and Day “barged” through the front door. Doyle stated that Maestas

confronted him and Solwick about Doyle having called Maestas a “punk” and that

Maestas assaulted Solwick. Doyle testified that he left Solwick in the apartment with

Maestas and Day, because he did not want to be around when Maestas was handing out

“sucker shots.” Doyle spent the night at his sister’s house. Doyle testified that he was

shocked to learn the next day from his girlfriend, who lives in the apartment downstairs

from Solwick, that Solwick had been murdered. Doyle further testified that he fled to

Washington and then Southern California, where he considered crossing the border to

Mexico. Doyle testified that he realized that the idea was “crazy” as he became more

sober. Doyle traveled to Missouri to visit his father. Doyle contacted authorities by

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phone on three occasions while he was on the run. He provided a statement to detectives

on March 27, 2003, following his return to Butte.

¶14 The jury found Doyle guilty of deliberate homicide by accountability. The court

sentenced Doyle to 65 years in Montana State Prison. Doyle appeals his conviction.

DISCUSSION

¶15 Whether the State violated Doyle’s right to a speedy right?

¶16 Doyle argues that the State violated his right to a speedy trial based on the 598

days that elapsed between his arrest on May 5, 2003, and the beginning of his trial on

January 3, 2005. Doyle asserted his right to speedy trial in a motion to dismiss filed two

months before the start of trial. The court held a hearing on Doyle’s motion. The court

allocated four of five delays to Doyle and found that Doyle suffered no prejudice to his

defense in light of his request for “numerous continuances.”

¶17 Whether a defendant has been denied the right to a speedy trial constitutes a

question of law. We review for correctness the district court’s legal conclusions on

speedy trial. State v. LaGree, 2007 MT 65, ¶ 10, 336 Mont. 375, ¶ 10, 154 P.3d 615, ¶

10. We refuse to disturb the trial court’s findings underlying a speedy trial ruling unless

such findings are clearly erroneous. State v. Spang, 2007 MT 54, ¶ 7, 336 Mont. 184, ¶

7, 153 P.3d 646, ¶ 7.

¶18 The Sixth Amendment to the United States Constitution and Article II, Section 24

of the Montana Constitution guarantee a criminal defendant the right to a speedy trial.

We analyze speedy trial claims based on the guidelines set forth in Barker v. Wingo, 407

U.S. 514, 92 S. Ct. 2182 (1972). We consider the following factors in determining
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whether a defendant was denied the right to a speedy trial: 1) the length of the delay, 2)

the reason for the delay, 3) the defendant’s timely assertion of the right to a speedy trial,

and 4) the prejudice to the defense caused by the delay. City of Billings v. Bruce, 1998

MT 186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19. No single factor controls the

speedy trial analysis. We engage in a lengthy and difficult balancing process. State v.

Highpine, 2000 MT 368, ¶ 14, 303 Mont. 422, ¶ 14, 15 P.3d 938, ¶ 14.

¶19 The first and third factors of Doyle’s speedy trial analysis are not at issue. The

parties agree that a sufficient number of days had elapsed between Doyle’s arrest and the

start of trial to trigger further speedy trial analysis. See Bruce, ¶ 55 (a delay of 200 days

or more between the date that the State filed initial charges and trial triggers further

speedy trial analysis regardless of which party caused the delay). The State also

concedes that Doyle satisfied the third factor by asserting his right to a speedy trial before

trial. Doyle challenges the court’s conclusions on the second and fourth factors: the

reason for the delay and whether such delay caused prejudice to the defense. We address

Doyle’s contentions in turn.

Reason for the Delay

¶20 Doyle argues that the State should have been held responsible for all 598 days of

delay. He contends that the court incorrectly assigned fault to him for four of the five

delays based on the fact that he had “moved to continue the trial setting or hearings on

five separate occasions.” Doyle admits that he sought to continue an omnibus hearing

and three trial settings. Doyle contends that no delay occurred as a result of his

continuance of the omnibus hearing as the court had not yet set a trial date. Doyle further
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argues that the State’s failure to release crucial evidence in a timely manner forced him to

move for the first two continuances for trial. Doyle also blames the State’s untimely

disclosure of two witnesses for the third trial delay.

¶21 The court allocates the total number of days of delay between the parties for the

purpose of determining which party carries the burden of proof under the prejudice

factor. Spang, ¶ 11. The court determines which party is responsible for specific periods

of delay based on the unique facts of each case. Bruce, ¶ 56. If the court determines that

275 or more days of delay are attributable to the State, then the State carries the burden to

show that the defendant was not prejudiced by the delay. The State’s proof includes

demonstrating a lack of prejudice based on: 1) the defendant’s pretrial incarceration, 2)

the defendant’s anxiety and concern, and 3) the impairment to the defense. Spang, ¶¶ 11-

12. The State may shift the burden to demonstrate prejudice caused by the delay back to

the defendant if the State can show a lack of prejudice based on one of those factors. The

district court then weighs the competing evidence. Bruce, ¶ 56.

¶22 The District Court, in assigning fault for the delay, failed to allocate the specific

number of days of delay for which the State and Doyle were to be held responsible. The

court’s skeletal order simply held Doyle responsible for four of the five delays and

required Doyle to demonstrate that he suffered prejudice as a result of such delays. The

court does not distinguish whether Doyle carried the burden of proof because fewer than

275 days of delay had been attributed to the State or whether the State carried the initial

burden of proof and presented enough evidence to shift the burden to Doyle to show

prejudice. District courts must allocate correctly the specific number of days of delay
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between the parties in order to avoid this type of confusion concerning the burden of

proof. See Bruce, ¶¶ 56-65.

¶23 Regardless of the court’s distribution of the burden of proof, however, our review

of the record indicates that the State demonstrated at the speedy trial hearing that Doyle

suffered no prejudice. The State presented the testimony of two detectives from the

Butte-Silver Bow Law Enforcement Agency at Doyle’s speedy trial hearing. Detective

Butch Harrington testified that he interviewed 22 witnesses while investigating Solwick’s

murder and that none of the defense witnesses indicated any memory loss as to what

happened on the night of the incident. Former Captain of Detectives Jeffrey Miller

testified that one witness had died before Doyle’s trial and that the witness’s death had

been detrimental to the State’s case.

¶24 Harrington’s and Miller’s testimony constituted sufficient evidence to satisfy the

State’s initial burden to demonstrate a lack of prejudice to Doyle based on alleged

impairment to his defense--one of the factors enumerated in Bruce, ¶ 56. Once the State

demonstrates a lack of prejudice to the defendant, the burden shifts to the defense to show

that such delay caused prejudice. Bruce, ¶ 56. Doyle must demonstrate that the delay

prejudiced his defense regardless of whether the court attributed the majority of the delay

to Doyle or attributed all of the delay to the State.

Prejudice to Defense

¶25 Doyle remained in jail on $250,000 bail since his arrest in May 2003 through his

trial in January 2005. Doyle moved the court on three occasions to reduce the bail

amount. The court refused to reduce Doyle’s bail based on “the gravity of the alleged
8
offense” and the “high probability Defendant will flee.” Doyle contends that he suffered

significant prejudice as a result of the 21 months of pre-trial incarceration.

¶26 We evaluate prejudice “based on the three interests that speedy trials are supposed

to protect: 1) prevention of oppressive pretrial incarceration; 2) minimization of the

defendant’s anxiety and concern; and 3) avoidance of impairment of the defense.” State

v. Longhorn, 2002 MT 135, ¶ 33, 310 Mont. 172, ¶ 33, 49 P.3d 48, ¶ 33. The degree of

prejudice necessary to establish denial of speedy trial depends on other considerations

such as the length of delay and the reason for the delay. Less delay or prejudice need be

shown with the greater degree of fault attributed to the State for the delay. Conversely,

greater delay and prejudice would have to be shown where the delay was not the fault of

the State. Longhorn, ¶ 18. We address each of the factors for prejudice in turn, keeping

in mind that Doyle carries the burden of proof to demonstrate prejudice as discussed in ¶¶

20-24.

¶27 1. Pretrial Incarceration

¶28 The right to speedy trial is designed to prevent oppressive pretrial incarceration,

not all pretrial incarceration. Longhorn, ¶ 36. (Emphasis added). We must consider,

therefore, whether the protracted pretrial incarceration unduly prejudiced the defendant.

Longhorn, ¶ 36. Doyle points out that he remained “continuously incarcerated since his

arrest on May 5, 2003.” Doyle cites no legal authority and makes no argument that his

pretrial incarceration was oppressive other than to call attention to the fact that he has

been confined since the date of his arrest. “‘[I]t is not this Court’s obligation to conduct

legal research on appellant’s behalf, to guess as to his precise position, or to develop legal
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analysis that may lend support to his position.’” Pankratz Farms, Inc. v. Pankratz, 2004

MT 180, ¶ 82, 322 Mont. 133, ¶ 82, 95 P.3d 671, ¶ 82 (quoting In re Estate of Bayers,

1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19. We conclude that Doyle

failed to establish any prejudice under the first factor, pretrial incarceration.

¶29 2. Anxiety and Concern

¶30 Criminal charges bear a certain amount of inherent anxiety and concern. We must

focus, therefore, on the extent that the delay aggravated the defendant’s anxiety and

concern. Spang, ¶ 22. (Emphasis added).

¶31 Doyle alleges that he suffered significant anxiety as a result of the “filthy”

conditions at the Butte-Silver Bow County Jail. Doyle testified at his speedy trial hearing

that the jail served green eggs and undercooked pork that would “make people stink.”

Doyle further testified that the jail lacked adequate ventilation and that the smell of

people “farting” and defecating “on the toilets” while other inmates were watching

television would rouse jailhouse fights. Doyle also blames his 40-pound weight gain on

the jail’s inadequate recreational facilities. We recognize that Doyle understandably may

have suffered anxiety and concern during his incarceration at the jail. In the context of a

speedy trial claim, however, Doyle must demonstrate that the delay aggravated his level

of anxiety and concern. Spang, ¶ 22. Doyle presents a catalog of complaints about jail

conditions, but makes no argument and presents no evidence that the delay enhanced his

level of anxiety and concern.

¶32 Doyle next argues that the jail’s failure to provide medical care for his preexisting

back injury deepened his anxiety and concern. The record belies Doyle’s contentions.
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Doyle testified that he received medical care for his ailing back on at least six occasions

while being held in the county jail. Medical professionals prescribed medications for

Doyle’s condition and instructed Doyle on how to perform rehabilitation exercises on his

own. Doyle fails to establish any prejudice based on the medical care that he received

while in custody.

¶33 Doyle also argues that the delay caused his relationships with his girlfriend,

Katerina Bowen (Bowen), and their toddler daughter to deteriorate. Doyle’s convictions

of domestic abuse and child endangerment in January 2003 undercut his contentions.

Doyle admitted that both Bowen and their daughter were victims of the abuse and that

part of his criminal sentence included having no contact with them until he completed

anger management classes. Doyle testified that he had been “drinking heavy” and

“dodging responsibilities.” Doyle never completed the anger management classes before

his arrest for Solwick’s murder. The rift in Doyle’s relationships started with his

domestic abuse conviction in January and continued with his admitted failure to live up to

his responsibilities. Doyle fails to show how the delay aggravated his already failing

relationships.

¶34 3. Impairment to the Defense

¶35 Impairment to the defense constitutes the most important factor in the prejudice

analysis as it impacts directly the fairness of the trial process. Spang, ¶ 12. We focus on

evidence issues, witness reliability, and the defendant’s ability to prepare a defense in

determining whether the delay caused impairment to the defense. Spang, ¶ 24.

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¶36 Doyle asserts that investigators used the delay to pressure Bowen into testifying

against him. Bowen made statements to detectives that implicated Doyle in Solwick’s

murder. Bowen recanted portions of her statement at trial. Bowen testified that she gave

the statements voluntarily, but felt pressured by the Department of Family Services

(DFS) to make a statement against Doyle in order for her to keep her children at home.

¶37 Even if DFS had pressured Bowen, her testimony gives no indication that the

delay actually caused or aggravated such pressures. DFS had been supervising Doyle’s

and Bowen’s family since Doyle’s arrest for domestic abuse in January 2003, three

months before Solwick’s murder. Doyle presented no evidence indicating that the

alleged pressure extended by DFS on Bowen to testify against him resulted from the

delay.

¶38 Doyle next argues that he suffered impairment to his defense as a result of the

delay because one witness had died and two others were unavailable by the time of trial.

The State points out that the three unavailable witnesses were listed as witnesses for the

State. Doyle ignores the State’s argument in his reply brief. Doyle presented no

evidence to support his position that these three unavailable witnesses would have aided

in his defense.

¶39 We conclude that Doyle fails to establish that the delay prejudiced him under any

one of the three interests that a speedy trial is designed to protect. The record shows that

Doyle complained about living conditions at the jail that bore no relation to the delay;

that Doyle received medical care while in custody of the jail; and that Doyle presented no

evidence tending to prove that the delay impaired his defense. The District Court
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properly denied Doyle’s motion to dismiss in light of Doyle’s failure to establish

prejudice aggravated by the delay.

¶40 Whether the District Court violated Doyle’s Sixth Amendment right to

confrontation by limiting cross examination of the State’s witness.

¶41 Doyle asserts that the district court abused its discretion when it denied him the

opportunity to question Maestas regarding his criminal history. Doyle moved the court to

allow him to cross examine Maestas about his prior convictions after Maestas testified

that he lied to authorities, because he was “scared” and that he “never had anything like

this happen” to him before.

¶42 Doyle argued in District Court, and makes the same argument on appeal, that

Maestas’s testimony opened the door to his criminal history as it tended to prove that he

had been involved in similar criminal situations, and, therefore, lied on direct

examination. Doyle wanted to question Maestas on his convictions for felony theft,

felony burglary, and a string of misdemeanor offenses. Doyle also sought to question

Maestas about an assault for which he had never been convicted. The court denied the

motion after noting that Maestas’s criminal history was not relevant in that it did not

include convictions for “felony assaults or aggravated assaults or anything of that

nature.”

¶43 The district court maintains broad discretion in its decision to limit the scope of

cross examination. State v. Beavers, 1999 MT 260, ¶ 20, 296 Mont. 340, ¶ 20, 987 P.2d

371, ¶ 20. We refuse to overturn the district court’s evidentiary rulings absent an abuse

of discretion. A court abuses its discretion if it acts arbitrarily or exceeds the bounds of
13
reason resulting in substantial injustice. State v. English, 2006 MT 177, ¶ 50, 333 Mont.

23, ¶ 50, 140 P.3d 454, ¶ 50.

¶44 M. R. Evid. 609 prohibits the admissibility of a witness’s prior convictions for the

purposes of impeachment. We have held, however, that a witness may open the door to

past convictions by offering a self-serving statement on direct examination that the court

knows to be false. We determined that a witness can be impeached with a prior

conviction if the witness fails to tell the truth on direct examination. State v. Bingham,

2002 MT 350, ¶ 37, 313 Mont. 376, ¶ 37, 61 P.3d 153, ¶ 37.

¶45 Doyle’s argument mischaracterizes Maestas’s testimony. The complete transcript

demonstrates that Maestas’s statement referred to his involvement in Solwick’s murder,

not his criminal history. The transcript reads as follows:

Q. Why were you providing this false information, or that false
information?

A. At that time, I didn’t want to be implicated; I was scared. I’ve never
had anything like this happen to me. It’s not like this occurs to me, you
know, all the time at any time.

Q. When you say this occurs, what do you mean by this?

A. I’ve never had anything like this ever happen to me.

Q. When you say this, what do you mean by this?

A. This—such a crime of this—you know—it’s just something terrible.
I’ve never seen a dead body. I’ve never watched somebody be killed, you
know.

¶46 Doyle attempted to impeach Maestas on the grounds that his prior convictions

show that he lied on direct examination about being in similar situations. Maestas’s prior

14
convictions for theft, burglary and other misdemeanor offenses do not undermine his

testimony that he has never “seen a dead body” or “watched somebody be killed.” M. R.

Evid. 609 precludes this kind of impeachment.

¶47 Doyle challenges the constitutionality of M. R. Evid. 609. Doyle asserts that the

rule prevented him from confronting his accusers as guaranteed by the Sixth Amendment

to the United States Constitution, and Article II, Section 24 or the Montana Constitution.

Doyle’s asserts that his defense relied on the credibility of the witnesses and that the

court’s evidentiary rulings robbed him of the opportunity to discredit Maestas in his

statement that he “never had anything like this happen.”

¶48 We already have determined in ¶ 46 that Doyle’s efforts to mine Maestas’s

criminal history would have been improper under M. R. Evid. 609 in light of the fact that

the crimes would not have discredited Maestas’s statement. Even if the criminal record

tended to discredit Maestas, the evidence would have been inadmissible as cumulative.

Doyle razed Maestas’s credibility on cross examination by drawing out several

inconsistencies between Maestas’s testimony at trial and the statements he gave

detectives during the investigation. Maestas admitted that he was a liar “at some point.”

We conclude that the court did not violate Doyle’s right to confrontation by limiting his

cross examination of Maestas based on M. R. Evid. 609.

¶49 Doyle next argues that the District Court improperly sustained an objection from

the State during Doyle’s cross examination of Maestas. The relevant portion of the

transcript reads as follows:

15
 A: Normally, when I am fighting I swing with both arms, you know, both
hands.

Q: Do you fight normally?

The State: Objection.

A: When I have to.

The court: Sustained.

Q: Well, you didn’t have to fight on March 4th, 2003, did you?

A: Probably not.

¶50 Doyle argues that he should have been allowed to ask follow-up questions to

Maestas’s testimony to show that since he normally engages in fights that he was the one

who killed Solwick on March 3, 2003. Evidence of a person’s character is generally

inadmissible for the purposes of proving action in conformity therewith. M. R. Evid.

404(a). Evidence of other crimes, wrongs, or acts, however, may be admissible to prove

the character of a person to show “proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” M. R. Evid. 404(b). Doyle does

not offer the character evidence under one of the recognized exceptions. We conclude

that the District Court did not abuse its discretion by sustaining the objection to Doyle’s

line of questioning.

¶51 Lastly, Doyle argues that the court improperly prevented him from asking Maestas

whether the State had been the sole determiner of Maestas’s veracity with respect to the

plea agreement. Doyle cites U.S. v. Schoneberg, 396 F.3d 1036 (9th Cir. 2005), to

support his brief argument that the court’s ruling violates his right to confrontation. The

16
trial court in Schoneberg violated the defendant’s right to confrontation when it refused

to allow cross examination of a co-defendant as to how his plea agreement “might have

affected [the co-defendant’s] motivation to satisfy the Assistant United States Attorney.”

Schoneberg, 396 F.3d at 1042. The transcript in this case reveals that Doyle cross

examined Maestas extensively about the benefits of his plea agreement. The jury had

been apprised adequately of the potential biases and motives behind Maestas’s testimony

in light of Doyle’s cross examination. We conclude that the District Court did not violate

Doyle’s Sixth Amendment right.

¶52 Whether sufficient credible evidence exists to support Doyle’s conviction of

deliberate homicide by accountability.

¶53 Doyle contends that the evidence supporting his conviction does not meet the

standard set forth in the court’s instruction of the law. The court instructed the jury that a

“conviction cannot be had on the testimony of one legally accountable unless it is

corroborated by other evidence which in itself and without the aid of the testimony of the

person legally accountable, tends to connect the Defendant with the commission of the

offense or the circumstances thereof.” Doyle argues that the jury’s verdict conflicts with

the court’s instruction, because the decision rests solely on Maestas’s and Day’s

uncorroborated testimony that Doyle killed Solwick. Doyle argues that physical evidence

presented by the State only proves that he was present at the crime scene, but fails to

connect him to the act of Solwick’s murder.

¶54 We review a question on the sufficiency of the evidence to determine whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier
17
of fact could have found the essential elements of the crime beyond a reasonable doubt.

Circumstantial evidence may be sufficient to sustain a conviction. State v Mooney, 2006

MT 121, ¶ 10, 332 Mont. 249, ¶ 10, 137 P.3d 532, ¶ 10.

¶55 In order for the jury to convict Doyle of deliberate homicide by accountability, the

jury would have had to conclude that the State met its burden of proof of showing beyond

a reasonable doubt that Doyle: 1) had the purpose to promote or facilitate commission of

deliberate homicide; and 2) had aided or abetted Maestas and Day in the planning or

commission of deliberate homicide. Sections 45-2-301-302, MCA; § 45-5-102, MCA;

State v. Lantis, 1998 MT 172, ¶ 33, 289 Mont. 480, ¶ 33, 962 P.2d 1169, ¶ 33. The

concept of accountability contemplates that the defendant played an active role in

facilitating the commission of an offense. State v. Fish, 190 Mont. 461, 471, 621 P.2d

1072, 1078 (1980).

¶56 The State presented sufficient evidence independent of Maestas’s and Day’s

testimony that Doyle played an active role in the commission of Solwick’s murder. The

State introduced gruesome photos showing Solwick’s beaten and bloody body. State

Medical Examiner Gary Dale (Dr. Dale) testified that Solwick likely died from blunt

force trauma and suffered multiple injuries consistent with those likely to occur as a

result of repeated blows from a hammer. Dr. Dale also could not rule out asphyxiation as

a possible cause of Solwick’s death.

¶57 Doyle denied bludgeoning Solwick with a hammer, but admitted that he owned

the hammer likely used to kill Solwick. Doyle also denied choking or suffocating

Solwick. Bowen and Bowen’s sister told investigators, however, that Doyle had admitted
18
to them that he suffocated Solwick. Bowen also told investigators that Doyle told her

that he smothered Solwick because he did not want him to “call the cops.” An

acquaintance of Maestas’s, John Dunn (Dunn), corroborated their statements at trial,

testifying that Doyle described feeling Solwick take his last breath.

¶58 Other evidence also points to Doyle’s guilt. Evidence of Doyle’s flight, although

inconclusive to prove Doyle’s guilt, may have been one of the many circumstances that

the jury considered in rendering its verdict. State v. Davis, 2000 MT 199, ¶ 40, 300

Mont. 458, ¶ 40, 5 P.3d 547, ¶ 40. In another attempt to throw law enforcement officers

off his trail, Doyle told investigators that Maestas had been wearing dark pants and a

Starter jacket on the night of Solwick’s murder. The State presented a surveillance video

from a convenience store that captured Doyle wearing those same clothes just hours

before Solwick’s murder. Investigators recovered the pants from Dunn’s garbage.

Analysis at the Montana State Crime Lab revealed that the pants contained both

Solwick’s blood and Doyle’s DNA. We conclude that sufficient evidence supports the

jury’s finding that Doyle had the purpose to promote or facilitate the commission of

deliberate homicide and that Doyle had aided or abetted Maestas and Day in the planning

or commission of the offense.

¶59 Doyle next argues that no evidence supports his conviction of deliberate homicide

by accountability in light of the fact that the State never obtained a conviction on the

underlying offense. Both Maestas and Day pled guilty to deliberate homicide by

accountability without admitting that they delivered the fatal blow to Solwick. The jury

acquitted Doyle of deliberate homicide in finding him guilty of deliberate homicide by
19
accountability instead. Doyle contends that he cannot be held accountable for an offense

that the court never determined to have occurred.

¶60 Section 45-2-303, MCA, provides, and we have long held, that a person may be

“convicted for accountability on proof that the offense was committed, even though the

other person claimed to have committed the offense has not been convicted or is

convicted of a different crime.” State v. Gibbs, 244 Mont. 251, 258, 797 P.2d 928, 932

(1990). We upheld Gibbs’s conviction of trafficking in body parts of game animals

through accountability based on § 45-2-303, MCA, even though a jury did not convict her

husband of the underlying offense of trafficking. We determined that criminal

accountability need not be founded on the convictions from the same crime by the

principal offender when “stronger proof” demonstrated that Gibbs had “aided and abetted

trafficking.” Gibbs, 244 Mont. at 258, 797 P.2d at 932.

¶61 Doyle challenges the constitutionality of § 45-2-303, MCA, on grounds that it

violates his due process rights under the Fourteenth Amendment to the United States

Constitution and Article II, Section 17 of the Montana Constitution. Doyle argues that

the statute relieves the State from its burden to prove beyond a reasonable doubt that an

offense had been committed, thereby conflicting with due process protections that require

convictions to be predicated on “proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90

S. Ct. 1068, 1073 (1970).

¶62 Doyle’s argument lacks merit. The plain language of § 45-2-303, MCA, provides

that a person may be convicted for accountability only “upon proof that the offense was
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committed . . . although the other person claimed to have committed the offense has not

been prosecuted or convicted, has been convicted of a different offense, is not amenable

to justice, or has been acquitted.” (Emphasis added). The statute in no way lessens the

State’s burden to prove that the underlying offense had been committed. Moreover, the

record shows that the State met its burden to show that a deliberate homicide had been

committed against Solwick. The State introduced photographs showing that Solwick had

been beaten severely. Dr. Dale testified that Solwick likely died as a result of the blunt

force trauma that he suffered as a result of these injuries. Dr. Dale also testified that

asphyxiation could have been a cause of Solwick’s death. This evidence supports the

State’s proof that a deliberate homicide had occurred. We conclude that Doyle’s

conviction of deliberate homicide by accountability under § 45-2-303, MCA, does not

violate Doyle’s due process rights.

¶63 Whether the District Court properly instructed the jury on the elements of

“purposely” and “knowingly.”

¶64 The court read the following instruction to the jury over Doyle’s objection: “If

purposely or knowingly causing the death of Richard Solwick 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.”

¶65 Doyle argues on appeal that the instruction constituted an improper “Rothacher
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instruction” that relieves the State of its burden to prove beyond a reasonable doubt the

“knowingly” and “purposely” elements of an offense. See State v. Rothacher, 272 Mont.

303, 901 P.2d 82 (1995). Doyle also relies on State v. Lantis, 1998 MT 172, 289 Mont.

480, 962 P.2d 1169, to support his contention that the “clumsy and confusing” language

in the instruction improperly directed the jury to impute Maestas’s contemplated result

onto Doyle.

¶66 We review jury instructions in a criminal case to determine if they fully and fairly

instructed the jury on the law applicable to the case. State v. Dubois, 2006 MT 89, ¶ 30,

332 Mont. 44, ¶ 30, 134 P.3d 82, ¶ 30. The district court maintains broad discretion in

instructing the jury. We review the court’s decision on jury instructions for an abuse of

discretion. State v. Ditton, 2006 MT 235, ¶ 18, 333 Mont. 483, ¶ 18, 144 P.3d 783, ¶ 18.

We will reverse the court only if the jury instruction prejudicially affected the substantial

rights of the defendant. Dubois, ¶ 30.

¶67 Rothacher and Lantis confute Doyle’s argument. We determined in Rothacher

that the court’s instruction “that the State merely needed to prove that Rothacher acted

purposely, without regard to the result that he intended” constituted an improper

statement of the law. Rothacher, 272 Mont. at 310, 901 P.2d at 86. We deemed the

court’s error harmless, however, in light of the fact that the court properly instructed the

jury based on the statutory provisions of § 45-2-201(2)(b), MCA. Rothacher, 272 Mont.

at 313, 901 P.2d at 88. The language of Doyle’s contested instruction nearly replicates

the language of § 45-2-201(2)(b), MCA, and, therefore, properly informed the jury “that

the requirement of purposeful and knowing causation [for the offense of deliberate
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homicide] can occur without intending a specific result, so long as the same type of harm

or injury was contemplated.” Rothacher, 272 Mont. at 313, 901 P.2d at 88.

¶68 We merely recognized in Lantis the differences in applying § 45-2-201(2)(b),

MCA, to the offenses of deliberate homicide and deliberate homicide by accountability.

We determined that the meaning of the term “result” as referenced in the statute

constitutes the “death of another human being” when applied to the offense of deliberate

homicide. In contrast, the “result” as contemplated by § 45-2-201(2)(b), MCA, in the

context of deliberate homicide by accountability means “not the death of another human

being, but rather some act designed to promote or facilitate causing the death of another

human being.” Lantis, ¶ 36.

¶69 A reasonable juror could interpret the plain language of the instruction as directing

the jury to consider whether Doyle’s contemplated “result” included “some act designed

to promote or facilitate causing the death of another human being” in the context of

deliberate homicide by accountability. Lantis, ¶ 36. The court’s instruction, therefore,

“fully and fairly instructed the jury on the law applicable” to Doyle’s case based on

Rothacher, Lantis, and § 45-2-201(2)(b), MCA. Dubois, ¶ 30. We conclude that the

District Court did not abuse its discretion in instructing the jury based on § 45-2-

201(2)(b), MCA.

¶70 Whether the District Court properly denied Doyle’s instruction for lesser included

offenses of criminal endangerment and negligent homicide.

¶71 A defendant is “‘entitled to a jury instruction on a lesser included offense when

one of the parties requests it and the record contains evidence from which the jury could
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rationally find the defendant guilty of the lesser included offense and acquit of the

greater.’” Adams v. State, 2007 MT 35, ¶ 43, 336 Mont. 63, ¶ 43, 153 P.3d 601, ¶ 43,

(quoting Beavers, ¶ 23). The offense must constitute an included offense of the crime

charged in order for the court to instruct the jury on the lesser included offense. Beavers,

¶ 23.

¶72 Doyle argues that he introduced sufficient evidence at trial that entitled him to

present to the jury instructions on the lesser and included offenses of criminal

endangerment and negligent homicide. Doyle offers his testimony that he left Solwick’s

apartment during Maestas’s attack on Solwick, because “he wasn’t going to sit there

while Maestas started taking sucker shots” as sufficient evidence to warrant instruction

on the lesser included offenses.

¶73 Doyle was not entitled to either instruction. Criminal endangerment does not

constitute a lesser included offense of deliberate homicide by accountability based on the

defendant’s failure to act under § 45-2-201(2)(b), MCA. State v. Olivieri, 244 Mont. 357,

360, 797 P.2d 937, 939 (1990). The State based Doyle’s charge of deliberate homicide

by accountability on § 45-2-201(2)(b), MCA. Doyle also presented no evidence at trial

supporting an instruction on negligent homicide. Doyle offers no evidence and we can

find no evidence in the record that would even suggest that Solwick’s murder had been

the result of a negligent act. The photographs of Solwick’s body plainly reveal that he

had been bludgeoned to death. We conclude that the court did not abuse its discretion in

refusing to instruct the jury on the lesser included offenses of criminal endangerment and

negligent homicide.
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¶74 Whether the District Court abused its discretion in denying Doyle’s motion for

mistrial.

¶75 Doyle moved for a mistrial after the court ordered jurors to continue deliberating

when they were at “an impasse.” Doyle contends the court’s decision denying his motion

constitutes an abuse of discretion, because the court improperly pressured the jury to

reach a decision and created the impression that the jury could only return a unanimous

verdict rather than a hung jury. He contends that the court failed to explain to the jurors

that they should never give up their honest opinion concerning Doyle’s guilt or

innocence.

¶76 We review a district court's grant or denial of a motion for a mistrial to determine

whether the district court abused its discretion. State v. Steele, 2004 MT 275, ¶ 15, 323

Mont. 204, ¶ 15, 99 P.3d 210, ¶ 15. Nothing in the record indicates that the court abused

its discretion in denying Doyle’s motion for mistrial. Contrary to Doyle’s argument, the

court had instructed the jurors that they should not “surrender an honest opinion as to the

weight or effect of the evidence or as to the innocence or guilt of the Defendant because

the majority of the jury feels otherwise, or for the purpose of returning a unanimous

verdict or to prevent a mistrial.”

¶77 The transcript also shows that the court never forced deliberations. The court

simply sent the jury home after the jury informed the court that it could not reach a

decision on the first day after ten hours of deliberations. The jury resumed deliberations

the next morning. The jury sent a second note to the court at the end of the second day of

deliberations, informing the court that it was at “an impasse.” The court then asked the
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jurors whether they wanted to go home early or order dinner and continue with

deliberations. The jurors chose to break for the day. The jury reconvened on the third

day and returned a unanimous verdict convicting Doyle of deliberate homicide by

accountability. We conclude that the court did not abuse its discretion in denying

Doyle’s motion for mistrial.

¶78 We affirm Doyle’s conviction.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER

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