State v. Gonzales

NO. 95-268
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
DAVID SYLVESTER GONZALES,
Defendant and Appellant

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable Maurice R. Colberg, Jr., Judge
presiding.

COUNSEL OF RECORD:
For Appellant:
James L. Vogel, Hardin, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Pamela Collins, Assistant Attorney General,
Helena, Montana
Christine A. Cooke, Big Horn County Attorney,
Hardin, Montana

Submitted on Briefs: August 29, 1996
Decided: October 24, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Defendant David Gonzalez appeals the Thirteenth Judicial
District Court, Big Horn County, jury verdict which found him

guilty of felony assault against Ronald Thompson. We affirm.

The following two issues are raised on appeal:

1. Did the District Court properly instruct the jury on the

affirmative defense of justifiable use of force?

2. Did the jury properly reject the defendant's affirmative

defense of justifiable use of force?
BACKGROUND

The following facts come from the State's case-in-chief. On

August 7, 1994, David Gonzales went to the Wagon Wheel Bar in Miles

City, Montana, at about 11:30 p.m. with his ex-wife, Marta Bergman.
Also at the bar that evening was Ronald Thompson, an older man who

was "acting strange," telling people he was a karate expert and a

Vietnam veteran. While Gonzales and Bergman were dancing to music

performed by Randy McCallister, Thompson started dancing between

them, making shadowboxing moves, but not saying anything or making

any aggressive motions towards them.
Because Thompson was shadowboxing and "acting strange" around

McCallister's band equipment, McCallister told Thompson to behave.

Thompson stopped what he was doing and repeatedly apologized.

According to Jan Small, the owner of the Wagon Wheel, she received

no complaints about Thompson.

After McCallister warned Thompson to behave around the band

equipment, Gonzales approached McCallister and tried to stick up

2
for Thompson. McCallister responded that it was not any of
Gonzales ' business. Gonzales then hit McCallister, who hit him

back. Richard Duncan, an acquaintance of McCallister, broke up the

fight. McCallister went back on stage and prepared to resume

playing with the band. Gonzales exited the bar after Jan Small

asked him to leave.

Approximately five minutes later, Gonzales reentered the bar

carrying something silver in his hand. He headed back to confront

McCallister, and in McCallister's direction, yelled, "Hey, bitch.

You want to do it right. LetIs go outside." At the same time,

Thompson was sitting alone in the bar and watching the crowd. He

got out of his chair, did an about-face, and hit Gonzales in the

face. Duncan observed Gonzales, standing, slash Ronald Thompson

with a carpet knife. Thompson grabbed Gonzales, who tried to stab

Thompson in the back with the knife. Duncan approached the melee

and grabbed Gonzales' wrist, ordering him to drop the knife.

Duncan hit Gonzales in the forehead and he dropped the knife.

Duncan then knocked Thompson and Gonzales to the ground. When the

three fell, Gonzales was on the bottom, Thompson in the middle, and

Duncan on top.

When the three got up, Thompson was bleeding profusely from a

deep laceration on his left arm. He also suffered smaller

lacerations to his lower chest and back. Gonzales was uninjured

except for a black eye. Immediately thereafter, deputies from the

Big Horn County Sheriff's Department arrived at the scene and

3
arrested Gonzales. They also administered first aid to Thompson
before transporting him to the hospital.
Thompson could not be found at the time of trial and was

unavailable to testify. Sheriff's deputies testified that Thompson

did not appear to be dangerous and they did not feel threatened by

him, although he did appear confused. TWO officers also testified

that the injury to Thompson's left arm appeared to be a defensive-

type wound.

At trial, Gonzales testified on his own behalf. He claimed

that during one of the band's breaks, McCallister made a derogatory

comment to him about his ex-wife. Gonzales poked McCallister in

the stomach. As Gonzales stood up to leave, McCallister hit him

from behind. Gonzales then headed towards the front door of the

bar, but before reaching it, he decided to find out why McCallister

had hit him. Gonzales faced the band where McCallister was playing

and yelled, "Hey bitch. You want to do it right. Let's go

outside."
According to Gonzales, McCallister noticed him and nodded to

Thompson. Thompson headed toward Gonzales, doing karate moves.

Gonzales was afraid because Thompson was fifty pounds larger than

he, he had just been beaten by McCallister, and he had been told

that Thompson was a Vietnam veteran and a karate expert. Gonzales

had a carpet knife in his wallet. He removed it as a warning for

Thompson to stay away. Thompson punched Gonzales in the eye.

Gonzales admitted at trial, that at that point, he could have

turned around and run out the back door of the bar. After hitting

4
GOnZaleS , Thompson tackled him, and the two fought on the floor
until Duncan separated them.

Gonzales was charged by information with felony assault
pursuant to § 45-5-202(Z) (a), MCA. He pled not guilty. Following
a jury trial, Gonzales was found guilty. The District Court
sentenced him to a term of eight years in the Montana State Prison,

plus two years consecutively for the use of a weapon. Gonzales

appeals.

1. Did the District Court properly instruct the jury on
Gonzales t affirmative defense of justifiable use of force?
Gonzales asserts that the District Court committed reversible

error at trial because it did not properly instruct the jury
regarding his affirmative defense of justifiable use of force. He

contends that the jury was instructed that the defense was not

available to an aggressor, but that the jury was not instructed on

the exceptions to the "no aggressor" rule contained in § 45-3-

lOS(2) (a) and (b), MCA.

Section 45-3-105(2) (a) and (b), MCA, provides:

Use of force by aggressor. The justification described
in 45-3-102 through 45-3-104 is not available to a person
who: (2) purposely or knowingly provokes the use of force
against himself, unless: (a) such force is so great that
he reasonably believes that he is in imminent danger of
death or serious bodily harm and that he has exhausted
every reasonable means to escape such danger other than
the use of force which is likely to cause death or
serious bodily harm to the assailant; or (b) in good
faith, he withdraws from physical contact with the
assailant and indicates clearly to the assailant that he
desires to withdraw and terminate the use of force but
the assailant continues or resumes the use of force.
 During settlement of jury instructions, the State offered
State's proposed instruction number 15, which restates 5 45-S-

105(Z) (a), MCA. Proposed instruction number 15 stated:

The use of force in defense of a person is not available
to a person who purposely or knowingly provokes the use
of force against himself unless such force is so great
that he reasonably believes that he has exhausted every
reasonable means to escape such danger other than the use
of force which is likely to cause death or serious bodily
harm to the assailant.

Defense counsel objected to the State's proposed instruction

number 15, stating that there had been no evidence presented at

trial to support it, and that it implied that Gonzales had provoked

Thompson. Defense counsel admitted there was evidence that

Gonzales provoked McCallister, but not Thompson. The District

Court initially accepted the State's proposed instruction 15, and

allowed the defense to argue that there was no evidence that

Gonzales was the aggressor. Gonzales then offered defense proposed

instruction number I, which stated, "No person has a duty to

retreat from the use of unlawful force against him." The State

objected to this instruction because it conflicted with its

proposed instruction number 15 and was an incorrect statement of

the law.
The District Court then decided not to accept either proposed

instruction. Instead, it gave the following instructions regarding

justifiable use of force:
INSTRUCTION NO. 8

The defense of justifiable use of force is an
affirmative defense and the defendant has the burden of
producing sufficient evidence on the issue to raise a
reasonable doubt of his guilt.
6
 If you find that he was justified in the use of
force, you must find him not guilty.

INSTRUCTION NO. 9
A person is justified in the use of force or threat
to use force when and to the extent that he reasonably
believes that such conduct is necessary to defend himself
against the imminent use of unlawful force.

However, a person is justified in the use of force
which is intended or likely to cause death or serious
bodily harm only if he reasonably believes that such
force is necessary to prevent imminent death or serious
bodily harm to himself.

INSTRUCTION NO. 10

The defendant has pleaded justification in the use
of force in this case. As such he has the burden of
producing sufficient evidence of justification in the use
of force to raise a reasonable doubt of his guilt. YOU
are to consider the following requirements of the law in
determining whether the use of force claimed by defendant
was justified:

1) The defendant must not be the aggressor;
2) The danger of harm to the defendant must be a
present one [and not merely threatened at a future time
and not made by a person without the present ability of
carrying out a threat];
3) The force threatened against the defendant must
be unlawful;
4) The defendant must actually believe that the
danger exists, that is, use of force by him is necessary
to avert the danger and that the kind and amount of force
which defendant uses is necessary;
5) The defendant's belief, in each of the aspects
described, is reasonable even if he is mistaken.

You are further advised that even if you determine
that the use of force by defendant was not justified, the
state still has the duty to prove each of the elements of
the crime charged beyond a reasonable doubt.

(Bracketed material in original.)

This Court reviews jury instructions in a criminal case to

determine whether the instructions, as a whole, fully and fairly

instruct the jury on the law applicable to the case. State v.

7
Leyba (Mont. 19961, 915 P.2d 794, 797, 53 St.Rep. 7, g. District
courts have broad discretion in formulating jury instructions.

State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167. While

a defendant is entitled to have instructions on his theory of the

case, he is not entitled to an instruction concerning every nuance

of his argument. ~,
Ross 889 P.2d at 167.

Gonzales failed to object to or offer other instructions

regarding the "no aggressor" rule contained in instruction number

10. He stated that he did not want the jury instructed on the

exceptions to the "no aggressor" rule because his theory of the

case was that Gonzales was not the aggressor. Because Gonzales did
not raise an objection before the District Court, he is barred from

raising the issue on appeal. See 5 46-20-104, MCA. State v.

Santos (1995), 273 Mont. 125, 133, 902 P.2d 510, 514-15.

Gonzales states in his reply brief that even though he did not

object to the District Court's failure to instruct the jury on the

"no aggressor" rule, this Court should review the issue as plain

error. Gonzales claims this error prevented him from receiving a

fair trial because it inhibited his ability to use the defense of

justifiable use of force.
We recently clarified the common law plain error rule in State

v. Finley (Mont. 1996), 915 P.2d 208, 53 St.Rep. 310. We held that

we would review claimed errors that implicate a criminal defen-

dant's fundamental constitutional rights under the plain error rule

only sparingly and only where failing to do so might result in a

manifest miscarriage of justice, leave the question of the

8
fundamental fairness of the proceedings unsettled, or compromise
the integrity of the judicial process. Finley, 915 P.2d at 215.
Here, we conclude that declining to review Gonzales' challeng-

es to the District Court's failure to submit alternative jury

instructions on the "no aggressor" rule does not rise to the level

of a manifest miscarriage of justice, will not leave unsettled the

question of the fundamental fairness of the trial or proceedings,

nor will it compromise the integrity of the judicial process. See

Finley,,915 P.2d at 215; Seyferth v. State (Mont. 1996), P.2d

_, 53 St.Rep. 698.
Accordingly, we decline to address the issue of whether the

District Court erred when it refused to submit the State's proposed

jury instruction number 15 and defense jury instruction number 1 as

alternative jury instructions to the "no aggressor" rule, an issue

which Gonzales raises for the first time on appeal.
As an additional argument, Gonzales argues that his counsel

was ineffective for declining an instruction on the exceptions to

the "no aggressor" rule. This Court reviews claims of ineffective

assistance of counsel based on the two-part test adopted in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674. The defendant must first establish that counsel's

performance was deficient in that counsel did not act within the

range of competence demanded of attorneys in criminal cases.

Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4. To satisfy

the second prong of the test, the defendant must also establish

that the deficient performance prejudiced him such that he was

9
deprived of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct.
at 2064. The defendant must prove both prongs of this test and

bears a heavy burden when he desires that his conviction be

reversed on the grounds of ineffective assistance of counsel.
.Levba, 915 P.2d at 796.

Acts of counsel must stem from neglect or ignorance rather

than from informed, professional deliberation in order to be

ineffective assistance. State v. Paulson (1991), 250 Mont. 32, 44,

817 P.2d 1137, 1144-45. When defense counsel decides, as a

tactical decision, to decline a jury instruction that is not

consistent with the defense, this Court,will not find that counsel

was ineffective. State v. Sheppard (1995), 270 Mont. 122, 890 P.Zd

754, 758. This Court will not second-guess trial tactics and

strategy. Leyba, 915 P.2d at 797.

The record demonstrates that Gonzales' defense at trial was

that Thompson was the initial aggressor and that Gonzales used the

amount of force that he reasonably believed was necessary to defend

himself against Thompson. No witness for either the prosecution or

defense testified that Gonzales was the aggressor in the fight

between Thompson and himself. Witnesses testified that Thompson

told people at the bar that he was a karate expert. After hearing

Gonzales yell threats at McCallister, Thompson approached Gonzales

and hit him in the face. Thompson was fifty pounds larger than

Gonzales. Gonzales testified that he was frightened of Thompson

and held up the knife in an effort to scare him. When Thompson

10
grabbed Gonzales and the two fell to the floor, Thompson was on

top.

The evidence presented at trial is consistent with Gonzales'

defense theory that Thompson was the aggressor. Defense counsel
argued in both his opening and closing that Thompson, not Gonzales,

was the aggressor. The decision to forego the jury instruction on

the exceptions to the "no aggressor" rule was a trial strategy

based on informed professional deliberation and was not the result

of neglect or ignorance. The fact that this strategy proved

unsuccessful does not mean that counsel was ineffective.

We therefore conclude that defense counsel's performance was

not deficient. Because Gonzales has failed to meet the first prong

of the Strickland test, we do not address the second.

2. Did the jury reasonably reject Gonzales' affirmative
defense of justifiable use of force?

Gonzales argues that his conviction must be reversed because

there was no evidence presented at trial on which the jury could

find that he was the aggressor towards Thompson. This is contrary

to Gonzales' first position that his conviction should be reversed

because the court failed to instruct the jury on the exceptions to

the "no aggressor" rule. Gonzales argues that if he was not the

aggressor, then his use of the knife was reasonable and reasonable

doubt had to be created in the minds of the jury by this defense.

The standard of review for sufficiency of evidence in a

criminal conviction is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a
11
reasonable doubt. State v. Arlington (1994), 265 Mont. 127, 146,
875 P.2d 307, 318.

The defense of justifiable use of force is an affirmative

defense and the defendant has the burden of producing evidence

sufficient to raise a reasonable doubt of his guilt. See § 45-3-

115, MCA; State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681,

684. To establish a defense of justifiable use of force, the

defendant must prove: (1) that the defendant was not the aggressor;

(2) that the defendant reasonably believed that he was in imminent
danger of unlawful harm; and (3) that the defendant used reasonable

force necessary to defend himself. Arlinaton, 875 P.2d at 318.

Whether the force used was reasonable under the circumstances is a

factual determination within the province of the jury. Arlinston,

875 P.2d at 314.
Based on the evidence presented at trial, Gonzales does not

meet the third prong for the defense of justifiable use of force.

When the evidence is viewed in the light most favorable to the

prosecution, the jury, as a rational trier of fact, could reason-

ably conclude that the force Gonzales used against Thompson was

unreasonable. Thompson suffered a deep laceration which extended

the length of his lower arm. The jury heard evidence that this

wound was a defensive-type injury. Thompson also suffered several

lacerations to his lower chest and back. Gonzales was not injured

after his confrontation with Thompson, other than having a black

eye. The jury reasonably concluded that the force Gonzales used

against Thompson was excessive.

12
 In summary, we hold that the District Court did not err when

it instructed the jury on the defense of justifiable use of force

according to Gonzales' theory of the case--that is, that Thompson

was the initial aggressor. Defense counsel was not ineffective for
declining an instruction on the exceptions to the "no aggressor"

rule, which was consistent with Gonzales' theory of the case.

Finally, the jury could properly find, based on all the evidence

presented, that Gonzales did not meet all three requirements for

the affirmative defense of justifiable use of force because he did

not use reasonable force to defend himself.

Appellant's conviction is affirmed.

We concur:

Justices

13
Justice Terry N. Trieweiler dissenting.

I dissent from the majority's conclusion that the attorney for

David Sylvester Gonzales was not ineffective when he objected to

the State's proposed instruction #15 which was essential to the

jury's complete understanding of the law related to justifiable use

of force.

Gonzales's defense was based on his assertion that he was not

the aggressor in his altercation with Ronald Thompson. However, it
was the State's theory that Gonzales was the aggressor toward Randy

McCallister and that his altercation with Thompson was the result

of that act of aggression.
There was evidence from which the jury could find in favor of

either the defendant's theory or the State's theory. It was,

therefore, necessary for the jury to be fully instructed on the law

that pertained to justifiable use of force, and in particular, that

part of the law which provides a defense to a person who is

initially the aggressor, but exhausts every reasonable means to

escape danger presented by someone who responds to his aggression.

The majority opinion suggests that to instruct the jury

regarding the law which was applicable in the event it found that

Gonzales was the aggressor would have been inconsistent with

Gonzales's defense that he was not the aggressor. I disagree.

It was perfectly consistent to argue that even though Gonzales

was not the aggressor, if the jury found otherwise he was still

entitled to assert justifiable use of force as a defense under

limited circumstances. In fact, I conclude that the normal range

14
of competence demanded of criminal defense attorneys required that
Gonzales's attorney be prepared to argue both scenarios. In other
words, while it was Gonzales's position that he was not the

aggressor, a reasonable defense required that the jury be informed
that if they disagreed with his argument and accepted the State’s

argument, it was still entitled to acquit him, in spite of that

fact, if it found that there was no reasonable means by which he

could have escaped from the danger that Thompson presented.

In this case, the jury was not fully instructed on the law

related to the reasonable use of force and there is no way to know

whether a complete and correct instruction would have produced a

different result. It is sufficient to note that the law provided

Gonzales with a defense, whether the jury found that he was the

aggressor or was not the aggressor, and he was denied that defense

based on his counsel's objection to the appropriate and necessary

statement of law.

I conclude that that objection constituted ineffective

representation of counsel, and for that reason would reverse the

judgment of the District Court and remand for a new trial with

correct instructions on the law.

For these reasons, I dissent from the majority opinion.

15
 October 24, 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

James L. Vogel
Attorney at Law
P.O. Box 525
Hardin, MT 59034-0525

Hon. Joseph P. Mazurek, Attorney General
Pamela Collins, Assistant A.G.
Justice Building
Helena, MT 59620

Christine A. Cooke
Big Horn County Attorney
Drawer H
Hardin, MT 59034

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA

BY: &%&!&+/jr-U
Deputy