State v. Stroud

NO. 83-59
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984

STATE OF MONTANA,
Plaintiff and Respondent,

DOUGLAS McKENZIE STROUD,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.

COUNSEL OF XECORD:

For Appellant:
Milodragovich, Dale & Dye; Michael Milodragovich
argued, Missoula, Montana
14oses Law Firm; Charles F. Moses argued, Billings,
I4ontana

For Respondent :

Hon. Mike Greely, Attorney General, Helena, Montana
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana: Ed McLean and Karen S . Townsend argued,
Deputy County Attorneys, Missoula, Montana

Submitted: January 26, 1984
Decided: May 17, 1984

Filed: MAY : 1 I984

Clerk
r . Justice TJ. C. Gulbrandson delivered the Opinion of the
Court.
Defendant Douglas McKenzie Stroud appeals from his
conviction and sentence in the District Court of the Fourth
Zudicial District, Missoul-a County, for negligent homicide.
We affirm.
During the early morning hours of March 14, 1982,

Pfissoula County Sheriff's deputies responded to a shooting
incident in the Rattlesnake area north of Missoula, Montana.
Upon arriving at the scene, the deputies spotted a man, later
identified as the defendant, Douglas McKenzie Stroud, stand-
ing outside a residence. Both deputies noticed that Stroud
was carrying a gun. He surrendered the weapon voluntarily,
was handcuffed, and placed in the rea.r of the deputies'
patrol car. Two deputies then entered the residence.
After entering, one of the deputies heard and observed
a woman later identified as Annette Stroud, the defendant's
ex-wife, shouting and screaming. The deputy checked the
woman to see if she was injured. Determining that she was
physically unhurt, the deputy proceeded to check the rest of
the home for an injured party. In the basement, the deputy
discoved a nude male, 1-ater identified. as Curt Jacky, whose
chest was covered with blood. The deputy determined that
Jacky had been shot. Together with an emergency medical
technician who had just arrived with a n ambulance, the deputy
.
concl-uded that Jacky was dead.
The deputy secured the house and then went outside to
await the arrival of the chief of detectives. While waiting,
he overheard the defendant Stroud make several statements,
including "my own house, my own kids in the house, a guy j.n
bed with my wife," and "what would you have done?"
 An autopsy of Jacky revealed that he died of a gunshot
wound to the chest and abdomen. Other abrasions and soot
marks were found on the body, indicating that other gunshots
had been fired near Jacky. The defendant suffered no bullet

wounds or powder burns. The examining physician concluded
that the fatal shot entered Jacky's body at an angle of 6 0 '
left to right and 2 5 ' downward. A firearms examiner for the
State Crime Laboratory concluded that the fatal shot and
other abrasions came from a Smith and Wesson Model 66 .357
revolver taken from the defendant by sheriff's deputies.

Annette Stroud and the defendant had been married from
June, 1975 to January, 1982, having separated briefly in 1978
and July, 1981. Attempts at reconci-liation were made after
the final divorce papers had been served. During defendant's
trial, Annette testified that her relationship with Stroud
"ld been difficult, and she related several incidents of
extramarital associations and physical violence. At various
times during their unhappy marriage, Annette testified that
Stroud had pointed guns at her, had held her to the floor
with a knife at her throat, had slapped her and had strangled
her with a jacket or his ha-nds. Although their divorce had
become final in January, 1982, property settlement and child
custody arrangements were still pending and were the subject
of much dispute between Annette and the defendant. A court
hearing on these matters had been scheduled for March 17,
1982, three days after the shooting incident.
In early February, 1982, Annette took part in two ski
trips in Idaho. During her second trip, she met Stroud, who
was returning to Missoula from a business trip in Nevada.
Her meeting with Stroud was not a harmonious one, and she
rnore than once refused his amorous advances. In the
meantime, she had met Curt Jacky, an Idaho resident. She
spent more than one time with Jacky, and Stroud was apparent-
ly aware of this association, as one evening, Jacky had
received a call from Stroud, who was then looking for
Annette.
On March 13, 1982, Stroud visited his old home in the
Rattlesnake to take pictures of the house and its various
rooms and to take his oldest son, Ian, for a visit. Jacky
had called Annette that same day and had told her he was
driving to Missoula for a visit. He arrived shortly before
dinner in a blue Corvette with a personalized license plate,
"Curt." Annette, Curt, and Ian went to dinner and a movie.
The three then returned to Annette's home, where Ian and his
younger brother were left with a babysitter while Annette and
Curt went dancing. The couple returned to the home about
12:30 a.m. and shortly thereafter went to bed. Prior to
retiring, Annette checked all the doors to be certain they
were locked.
On that same evening, Stroud and his live-in
girlfriend, JoAnn Jennings, had also attended a movie. At
trial, Jennings indicated that Stroud was depressed and had
left their apartment about 12:20 a.m. to visit his former
residence. Before leaving, Stroud left the telephone number
of his lawyer with Jennings in the event he might end up in
trouble. Apparently, Stroud was not permitted to be at the
residence because of the divorce. Stroud indicated that the
purpose of his visit was to photograph Jacky's blue Corvette,
which he had observed sometime earlier, in order to show that
Annette was entertaining "overnight guests." Stroud apparent-
ly believed his pictures would bolster his position in the
c h i l d c u s t o d y p r o c e e d i n g s s e t f o r March 1 7 . Before leaving,

h e armed. h i m s e l f w i t h t h e .357 r e v o l v e r .

Upon a r r i v i n g a t h i s f o r m e r home, S t r o u d d i d n o t p h o t o -

graph t h e c a r . I n s t e a d , h e e n t e r e d t h e h o u s e w i t h a key made

p r e v i o u s l y and p r o c e e d e d t o t h e u p s t a i r s bedroom. H e opened

t h e d o o r and began t a k i n g p i c t u r e s o f A n n e t t e and C u r t J a c k y ,

who a t t h e t i m e w e r e engaged i n a n i n t i m a t e p o s i t i o n . Stroud

f l a s h e d f o u r p i c t u r e s w h i l e t h e c o u p l e s t r o v e t o g e t up from

t h e bed. H e o r d e r e d them t o s i t on t h e b e d , a s he wanted t o

t a l k w i t h them. C u r t a s k e d p e r m i s s i o n t o p u t on h i s c l o t h e s ,

b u t t h i s r e q u e s t was r e f u s e d . Annette l a t e r t e s t i f i e d t h a t

s h e t r i e d t o r e a c h t h e phone t o d i a l 911, b u t S t r o u d g r a b b e d

t h e phone a n d t h r e w it down t h e h a l l w a y . A c c o r d i n g t o An-

nette, Stroud then remarked, " s i t down o r I ' l l k i l l . you."

S t r o u d t h e n advanced t o w a r d h e r , but she t r i e d t o g e t past

him t o r e c o v e r t h e phone. S t r o u d t h e n jumped b a c k , p o i n t e d

t h e . 3 5 7 r e v o l v e r i n h e r f a c e , cocked i t , a n d s a i d , " s i t down

o r I ' l l k i l l you, t o o . "

Stroud then reached out and pushed Annette on the

s h o u l d e r , c a u s i n g h e r t o l o s e h e r b a l a n c e a n d f a l l backward.

A s she f e l l , s h e saw C u r t go p a s t h e r . She p u t on h e r r o b e

and r u s h e d t o t h e h a l l w a y , o n l y t o h e a r t h e gun g o o f f a.nd

C u r t f a l l down t h e s t a i r s t o t h e basement f a m i l y room. While

a n a p p a r a n t s t r u g g l e e n s u e d between S t r o u d and J a c k y , A n n e t t e

a t t e m p t e d t o c a l l 911, b u t was u n a b l e t o g e t a c l e a r l i n e

b e c a u s e a n o t h e r h o u s e phone was o f f t h e hook. She t h e n h e a r d

two more gu.nshots, two " r e a l l y a w f u l moans," a n d f i n a l l y C u r t

Jacky saying, "you k i l l e r . " S t r o u d then. came up t h e s t a i r s

and, a c c o r d i n g t o A n n e t t e , p o i n t e d t h e gun a t h e r a g a i n a n d

s a i d , "I ought t o k i l l you, t o o . I t w o n ' t d o any more harm."
 Stroud then called 911 himself to report a shooting.
He then called JoAnn Jennings to get his lawyer's phone
number, and then called his lawyer. He again called the 911
operator. When Annette asked Stroud why he had done this, he
replied, "Because I love you." By this time, Annette had
discovered the nude body of Curt Jacky lying at the bottom of
the stairs. After completing the calls, Stroud went outside
to await the arrival of authorities.
The defendant's version of the events leading up to and
including the shooting acknowledges his marital problems with
Annette, as well as many of the incidents that occurred
during his presence in the home. He claimed, however, that
the pistol was brandished only for self-defense, and that
Jacky had jumped him while he was trying to leave. He admit-
ted pointing the gun at Annette and the victim. He also
admitted that he did not take a picture of Jacky's car, as he
had told Jennings he would do. Finally, he acknowledged that
he was entering a "high-risk" situation when entering the
home during the early morning hours of March 14. There is
some question as to whether other weapons were in the home
that morning, although Stroud had personally removed some of
his guns before March 14 and had been told by Annette that
the other weapons were not in the house. He claimed that he
had never made a direct threat with a gun on any person with
the exception of himself.
Stroud was charged with deliberate homicide for the
death of Curt Jacky. He was tried in June, 1982, before a
jury. Prior to giving the case to the jury, the trial judge
instructed the jury on mitigated deliberate homicide and
negligent homicide as well as deliberate homicide. The jury
acquitted Stroud of deliberate and mitigated deliberate
homicide, hut returned a guilty verdict for negligent homi-
cide. The trial judge subsequently sentenced Stroud to the
maximum of ten years, with seven suspended, plus an addition-
al ten years for committing the offense with a dangerous
weapon. He was also designated a dangerous offender.
On appeal, Stroud raises the following issues:
(1) Whether the jury in his case was properly
impaneled?
(2) Whether evidence of "other crimes or acts" was

properly admitted?
(3) Whether Stroud was properly convicted of negligent
homicide ?
(4) Whether Stroud was denied his constitutional right
to bear arms?
(5) Whether Stroud's actions directly caused Jacky's

death?
(6) Whether Stroud was properly sentenced?

In disposing of this case, we treat Issue Five together with
Issue Three, as both are concerned with the appropriateness
of the jury's negligent homicide verdict.

WHETHER --- PROPERLY IMPANELED?
THE JURY WAS
On June 1, 1982, the date originally set for trial, the
trial judge brought the fifty-five prospective jurors into
court for a meeting. Neither the prosecutors, defendant, nor
defense counsel were present. The judge proceeded to explain
the trial process in general and asked the members of the
jury panel whether everyone could serve two weeks. As a
result of this inquiry, two prospective jurors were excused
from duty. No record was kept of this meeting. Apparently
the trial was rescheduled for June 7, at which time a regular
voir dire examination was conducted by counsel with defendant
present.
Prior to the beginning of regular voir dire, defense
counsel moved to discharge the iury panel on grounds that the
meeting of June 1 held outside defendant's presence was in
violation of defendant's constitutional and statutory gua-ran-
tees of presence during trial. The motion was d-enied, but
the trial judge explained the events of June 1 as follows:
"1'11 deny [the motion] inasmuch as what
I told the people who were drawn was--I
questioned them about their ability to
serve for two weeks, and I think that's
within my discretion in impaneling them,
the jury panel. It's true there was no
record. No one was present but me and
the clerk, but the only discussion was
about whether people could come, and I
discharged, I think, two people as a
result of that.

"You can assume when I impaneled the jury
or brought in and qualified the panel I
told them basically what the outline of
our trial would be, and I'll do that
again this morning, at least so much of
it as seems useful, so get right into the
questions that are necessary, that are
related to their state of mind and their
ability to serve. ... Nor do I want the
usual harangue of--not the usual-, but
particularly--but one I've heard many
times about how the court process works,
etcetera. I already told them that, so I
iust want to get into the questions so we
can get them picked." Transcript of
Proceedings at 5, 8.
On appeal, defendant renews his objection, claiming
prejudice and error resulting from the trial court's actions.
We disagree with this assessment.
We accept the trial judge's explana-tion of the events
of June 1. There is no hint of prejudice here. The situa-
tion under attack here is little different from one described
in Brown v. State (1975), 29 Md.App. 1, 349 A.2d 359. In
Brown, a defend.ant challenged the right of a trial judge to
instruct prospective jurors outside defendant's presence on
the meaning of important legal concepts like "probabl-e cause"
and "beyond a reasonable doubt," matters far more crucial
than the general outline of a criminal trial and ability to
sit for two weeks. The jurors in Brown were not advised how
to apply the legal concepts to the particular set of facts in
that case. Apparently this educational program is common in
trial ccurts in Baltimore, Maryland. 29 Md.A.pp. 1, 349 A.2d
at 362.
The Maryland Court of Special Appeals rejected the
defendant's challenge in view of the purely educational
nature of the trial court's examination and of the fact that
this examination was not a "critical. stage" in the proceed-

ings against the defendant. 29 Md.App. 1, 349 A.2d at
362-63. See also People v. Hawks (1919), 206 Mich. 233, 172
N.W. 405, where the Michigan Supreme Court found no evidence
of prejudice in the trial judge's rea.ding of instructions to
jurors on their civic duties and where the defendant was not
present. Similarly, we find no evidence of prejudice in the
trial court's explanation of the criminal trial process and
determination of prospective jurors' ability to sit for a
two-week trial when the defendant and counsel were not
present.
In reaching this conclusion, we are not suggesting that
the trial judge's essentially educational examination should
be adopted by other district jud.ges. Nor are we suggesting
that the judges's method of examination was the best one.
Certainly a record of any such proceedings should be main-
tained. Here, we conclude only that there is no credibl-e
evidence of prejudice to the defendant Stroud.
WHETHER EVIDENCE - "OTHER CRIMES - -
OF OR ACTS" WAS PROPERLY
-
ADMITTED
Defendant objects to the introduction of "other crimes
or acts" evidence against him at trial, specifically (1) the
testimony of Annette Stroud during the State's case-in-chief
concerning the defendant's violent behavior toward her during
their marriage; and (2) the testimony of rebuttal witnesses
Nancy Alderson, Ivan Alderson, and Ladene Priddy concerning

defendant's past conduct.
With respect to Annette's testimony, defendant insists
that it is prejudical and was admitted contrary to Rule
404 (b), the substantive guidel-inesof State v. Jensen (1969),
153 Mont. 233, 455 P.2d 631, and the procedural guidelines of
State v. Just (1979), 184 Mont 262, 602 P.2d 957.
Rule 4 0 4 ( b ) provides that:
" [elvidence of other crimes, wrongs, or
acts is not admissible to prove the
character of a person in order to show
that he acted in conformity therewith.
It may, however, be admissible for other
purposes, such as proof of motive, oppor-
tunity, intent, preparation, plan, knowl-
edge, identity, or absence of mistake or
accident."

Admissibility is also governed by specific substantive and
procedural rules. The four substantive requirements are (1)
similarity between the crime charged and the previous crimes,
wrongs or acts; (2) nearness in time between the charged
crime and the previous crimes, wrongs or acts; (3) tendency
to establish a common scheme, plan or system; - (4) deter-
and
mination tha-t the probative value of the evidence is not
substantially outweighed by the prejudice to the defendant.
Jensen, supra, 153 Mont. at 239, 455 P.2d at 634 and Rule
403, Mont.R.Evid. In addition, three procedural guidelines
must be followed: (1) notice to the defendant prior to trial
that evidence of other crimes, wrongs or acts will be intro-
duced.; (2) an admonition by the judge to the jury when the
evidence is introduced that it i s admitted solely for one or
.
more of the accepted purposes stated in Rule 404(b); and (3)
a cautionary jury instruction to the same effect, providing
in unequivocal terms that the evidence is admitted for the
purpose earlier stated and not to try and convict the defen-
dant for prior wrongful conduct. Just, supra, 184 Mont. at
274, 602 P.2d. at 963-64. These procedural rules were crafted

from similar procedures used in Minnesota. See State v.
Rillstrom (1967), 276 Minn. 174, 149 N.W.2d 281; State v.
Spriegl (1965), 272 Minn. 488, 139 ~ . ~ . 2 167.
d

On appeal, the State takes the initial position that
the Jensen-Just analysis does not apply, and that the correct
analysis should be that followed in State v. Riley (Mont.
1982), 649 P.2d 1273, 39 St.Rep. 1491; State v. Trambley
(Mont. 1980), 620 P.2d 367, 37 St.Rep. 1871, and State v.
Jackson (1979), 180 Mont. 195, 589 P.2d 1009. We disagree.
In the Riley-Trembley-Jackson line of ca-ses, we were con-
cerned with prior wrongful acts inextricably - inseparately
or
linked - - crime charged, as opposed to prior wrongful
with the
acts which are wholly independent - -
of the crime charged,
althbugh similar - -
to it. In the instant case, we are con-
cerned with the latter type of crimes or acts, and therefore
the Jensen-Just rules apply.
1. Similarity of Crimes or Acts
Annette Stroud testified to several violent acts com-
mitted by the defendant during the course of their marriage.
Some of these involved no more than intimidation and threats;
others, however, included unacceptable physical contact. The
State introduced evidence of these prior acts to show a
common scheme, plan, or design in the defendant's conduct,
i.e., the threat and possible carrying out of violence to
intimidate Annette and/or those associated with her.
Annette's version of events of March 14 suggests a
similarity between the acts committed that evening and the
prior acts. Defendant was armed, pointed his weapon at
Annette and Jacky, mouthed verbal threats concerning their
lives, and physically shoved Annette. In the instant case, a
death occurred, and that appears to be the only difference
between the acts committed on March 14 and those committed
previous to that time. We think the evidence of prior acts
is similar enough to the acts involved in the immediate case
to iustify their admission based on the State's theory of the
case. Any doubts as to similarity are assuaqed by our con-
clusion, discussed infra, that Annette's testimony was not
prejudicial because of the jury's ultimate verdict.
2. Nearness in Time
All of the events d-escribed by Annette took place
within one to three-and-one-half years of the events of March
14. In Just, supra, we held that the nearness in time test
was satisfied by proof of prior acts committed three years
before the charged crime. 184 Mont. at 269, 602 P.2d at 961.
Under the circumstances, we hold that the prior acts were
committed sufficiently close j n time to meet this standard.
.
3. Tendency - Establish - Common Scheme, Plan,
to a or
System.
Defendant's prior threats and assaults were apparently
designed to intimidate and manipulate Annette into cooperat-
ing with him. Indeed, at one point in her testimony, Annette
indicated that she did not seek divorce on an earlier occa-
sion because of these threats. The defendant's actions on
the morning of March 14 appear to be consistent with his past
attempts to influence Annette with violence. Evidence of
these actions was therefore admissible.
4. Probative Value v. Prejudicial Effect
Evidence of defenda.nt1 prior acts was unquestionably
s
probative of the State's theory that Stroud's actions were
not an isolated event, and that he had the requisite purpose
or knowledge to commit homicide. There is of course the
serious potential of prejudice to the defendant, but we do
not believe the potential manifested itself in reality. The
defendant was acquitted of both deliberate and mitigated
deliberate homicide. It is difficult to see what prejudice
was suffered under these circumstances. The finding of
negligent homicide implies a finding that defendant either
consciously disregarded the risk of death or disregarded a
risk of which he shou1.d. have beer? aware, either situation
embodying a gross deviation from the conduct of a rea-sonable
man. The iury necessarily had reasonable doubts about defen-
dant's present conduct being part of a common scheme, plan,
or system of conduct. The negligent homicide verdict sug-
gests that defendant's conduct was measured as of March 13
and 14, with prior acts being virtually irrel-evant. Thus,
the prospect of prejudice is at most minimal.
5. Notice and Purpose
The State gave defendant notice that it would introduce
evid.ence of other crimes in order to prove that the defen-
dant's action were part of a common scheme, plan or system.
6. Admonition to the Jury
At no time before, during or after Annette's testimony
did the court admonish the jury concerning the evidence of
prior wrongful acts and the limited purposes for which the
testimony was permitted.. Although language in a prior deci-
sion, State v. Case (Mont. 1980), 621 P.2d 1067, 1071-72, 37
St.Rep. 2057, 2063, suggests that such an omission is revers-

ible error, we hold that in this case, no reversible error
was committed, principally because of defense counsel's
failure to object to the court's failure to admonish the jury
before, during, or immed-iately following Annette's testimony.
P problem similar to the one before us has been consid-
.
ered by the Minnesota Supreme Court, the drafter of the
guidelines which inspired. Just. In State v. Schweppe (1975),
306 Minn. 395, 237 N.W.2d 609, the Minnesota high court

declined review of alleged failures to give notice and a

cautionary instruction when defense counsel in that case did
not protest the a-bsence of notice and did. not request an
appropriate instruction. 306 Minn. 395, 237 N.W.2d at 616.
Two years later, in State v. Forsman (Minn. 1977), 260 ~ . ~ . 2 d .
160, the court addressed a similar problem, i.e., where
notice was properly given, but where cautionary instructions
were neither requested or given. After analyzing the prob-
lem, the court concluded that:
". . . once the state has given notice .
. . the other Spriegl-Billstrom proce-
dures became mandatory
defendant's objection
Defendant's failure to request limiting
instructions in this case is inexplica-
ble. We reiterate that the trial court
should, sua sponte, give an unequivocal
limiting instruction both at the time the
evidence is admitted and at the close of
trial. But in the absence of a request,
i t s failure to do so was not reversible
- -

error." Forsman, supra, 260 N.W.2d at
169. (Emphasis added.)
See also State v. Clark (Minn. 1980), 296 ~ . ~ . 2359, 368 n.
d
7 (dictum) (fa-ilureto request Billstrom limiting instruction

waives claim of error).
 We reach the same result here. To allow defense coun-
sel to remain silent while a trial judge fails to admonish a
jury i-s tantamount to permitting counsel to plant errors in
the trial proceedings consciously. This we cannot and will
not allow. Therefore, once the State has given notice under
Just that it will introduce evidence of other crimes or acts,
the remaining proced-ures become mandatory only upon defen-
dant's objection and/or request. As the court did in
Forsman , remind trial judges that admonition the
still should be done sua sponte.
7. Cautionary Instruction
Prior to closing arguments, the trial judge gave the
following instruction to jurors concerning the "other crimes
or acts" evidence:
"You are instructed that evidence of
other acts, wrongs, or crimes has not
been admitted for the purpose of proving
other acts. Such evidence wa.s received
only for the limited purpose of impeach-
Inq statements or conclusions of either
the defendant or other witnesses and for
- other purpose. You are warned that
no
to convict for any act except that
charged may result in unjust double
punishment. The defendant is not being
tried a.nd may not be convicted for any
offense except that charged. You are
cautioned to weigh the evidence only for
the limited purpose earlier stated."
(Emphasis in original instruction.)
This instruction, given as Court's No. 33, was based on
defense counsel's Proposed Instruction No. 45, except that
the second sentence was rewritten by the trial judge without
objection by the county attorney or defense counsel.
This instruction unquestionably omits discussion of the
"common scheme, plan or system" theory of the State's argu-
ment for introducing Annette Stroud's testimony, although the
State, for whatever reason, did not object to this omission.
On appeal, defendant objects to this instruction on grounds
that it somehow places Annette's testimony before the jury in
an unduly prejudicial way.
We cannot find a defensible basis for defendant's
argument. The failure of defense counsel to object to this
instruction on the grounds of undue prejudice forecloses
review. See Forsman, supra. Moreover, we have already
emphasized the strong prospect that Annette's testimony was
not prejudicial because of the jury's ultimate verdict of
negligent homicide. Nevertheless, we admonish trial judges
and counsel in future cases to consider carefully the content
and impact of any cautionary instruction.
In addition to criticizing Annette Stroud's testimony,
defendant challanges rebuttal testimony by Nancy Alderson,
his former wife, Ivan, Nancy's current husband, and Ladene
Priddy about prior assaults on Annette by defendant. This
evidence, admitted to rebut defendant's claims on the witness
stand that he was a peace-loving, nonviolent man, was admis-
sible under Rule 404(a) (l), Mont.R.Evid.

WHETHER THE DEFENDANT WAS PROPERLY CONVICTED - NEGLIGENT
OF
HOMICIDE ?
Defendant maintains that his negligent homicide convic-
tion was improper for three reasons: (1) the negligent homi-
cide statute is either ambiguous or suffers from a failure to
give the defendant notice so that he can conform his conduct
to its requirements; (2) the evidence is insufficient to

establish negligent homicide, assuming a correct interpreta-
tion of the law; and (3) the jury instructions are inappro-
priate to satisfy the requirements of due process, presumably
because of problems inherent in the negligent homicide
statute.
Initially, we note with respect to the propriety of the
statute and the instructions based upon it that any errors
elleged by defendant were invited. The State was out to
prove deliberate homicide, and objected to the giving of any
instructions pertaining to mitigated deliberate or negligent
homicide. Defense counsel, however, convinced the trial
judge to give instructions on these points. We are therefore
disinclined to review arguments, however vague, on the pro-
priety of negligent homicide law. Nevertheless, we think the
statute and accompanying instructions quite clear, unambigu-
ous, and appropriate. The real issue is whether there is
sufficient evidence to permit the jury to reach the verdict
of guilty beyond a reasonable doubt. We believe there is
such evidence.
At trial, the defendant pictured himself as a concerned
parent out to protect his interest in a child custody hear-
ing. His actions at his former residence were characterized
as self-defense. The jury did not accept this theory or the
State's contention that defendant either purposely or know-
ingly killed Curt Jacky. The conclusion that defendant was
guilty of negligent homicide was proper in light of the
evidence. When defendant left his apartment and prepared to
enter his former residence armed and contrary to a court
order, he knew or should have known that he would be entering
a high risk situation. His actions toward Annette and Curt
Jacky, especially those involving the brandishing of a dan-
gerous weapon, were very risky. He instigated and continued
a struggle involving the great risk of serious injury or
death. Defendant's assertion that he was defending himself
when his alleged attacker was naked and. unarmed was obviousl..y
deemed implausible by the jury, and there is no reason to
dispute the jury's conclusion.
The available evidence was sufficient for the jury to
conclude that defendant had acted "negligently" within the
meaning of Section 45-2-101(37), MCA, and was therefore
guilty of negligent homicide under Section 45-5-104, MCA. We
will not overturn this judgment.
Our analysis of the evidence also convinces us of the
groundlessness of defendant's assertion that "causation" is
not shown or demonstrated by competent evidence. There is no
question that a bullet from Ken Stroud's weapon caused Curt
Jacky's death. The only remaining question is whether Jacky
would have lived hut for Stroud's conduct. The answer is
clearly yes. Defendant's conduct involved a gross deviation
from the conduct of a reasonable man. Had defendant chosen
not to pursue this unreasonable line of conduct, Curt Jacky
would not have been shot and killed. The evidence supports
the jury's implicit conclusion that defendant's negligent act
"caused" Jacky's death.

WHETHER DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT - -
TO BEAR
ARMS ?
Defendant's position here is that he was acquitted of
deliberate homicide and mitigated deliberate homicide because
the jury believed his self-defense argument, and that the
subsequent conviction for negligent homicide can only be
based on the improper belief that possessing a weapon, a
right protected und.er Mont. Const. Art. 11, Sec. 12, was
itself negligent.
 We agree with the State that defendant's argument is
incredible. The argument is based not only on faulty assump-
tions concerning the jury's verdict, but also on an unbeliev-
ably strained construction of the constitutional right to
bear arms. Initiall-y,we note that it is pure conjecture to
argue that the jury believed defendant's self-defense theory
or concluded that carrying a weapon was enough to constitute
negligence. More importantly, the right to hear arms conveys
no tight or privilege to enter a residence without permis-
sion, threaten its unarmed occupants, and. discharge a weapon
under unreasonable conditions. The finding of negligent
homicide as defined by statute in no way infringes on the
constitutional right to possession of firearms.

WHETHER THE DEFENDANT WAS PROPERLY SENTENCED?
Defendant raises five objections to sentencing proce-
dures in his case: (1) the sentence was for punishment rather
than for prevention of further crime or for reformation of
the defendant; (2) the sentence effectively punishes him for
being an ex-policeman, and thus violates his right to equal
protection; (3) the sentence for knowing use of a weapon
cannot be applied to negligent homicide; (4) no hearing was
held concerning any unusual or substantial duress suffered by
defendant during the shooting incident; and (5) the trial

judge's private meeting with the probation officer concerning
the pre-sentence investigation report was improper.
Defendant's first argment is clearly without merit.
There is no question that Mont. Const. Art. 11, Sec. 28,
provides that "[llaws for the punishment of crime shall be
founded on the principles of prevention and reformation."
However, there is no evidence or authority cited by defendant
to establish that Stroud's sentence will not deter either him
or others from future wrongful conduct, or that the sentence
will not lead to reformation.
Defendant's equal protection claim is equally ground-
less. Defendant cites no authority for the proposition that
the extra ten-year sentence for use of the weapon somehow
treats him unfairly. As a former policeman, defendant was
more aware than a layman of the risks entailed in entering a
potentially explosive emotional situation with a deadly
weapon. Policemen are not a protected class of citizens, so
any classification affecting a member of that group need only
have a rational basis. Given the evidence produced at trial,
holding defendant to a greater knowledge of the risks inher-
ent in his actions, for the purpose of deciding whether his
sentence should be enhanced under Section 46-18-221(1), is
unquestionably reasonable and therefore constitutionally
sustainable.
Defendant's third argument is similarly unconvincing.
It is somewhat incongruous to argue that he acted as he did
in self-defense, and then maintain that the negligent homi-
cide verdict somehow prohibits a finding that defendant
"knowingly" used a weapon within the meaning of the enhance-
ment statute, Section 46-18-221(1), MCA. Nevertheless, we
need not ponder this inconsistency. In State v. Hubbard
(Mont. 1982), 649 P.2d 1331, 39 St.Rep. 1608, we held that a
person can knowingly use a firearm and still be negligent by
grossly deviating from the conduct of a reasonable person in
a similar situation with regard to the results of his ac-
tions. That decision is applicable to the facts of this
case.
 Defendant's claim that he may have been within one of
the exceptions to mandatory minimum sentencing, i.e., acting
under unusual or substantial duress, is not well-founded, and
he is therefore not entitled to a separate hearing on this
issue. Initially, we note that defendant received the maxi-

- sentence for negligent homicide, - the minimum.
mum not Be-
cause the judge was not disposed to give the minimum
sentence, there is no chance that he would have given less
than the minimum sentence. This case is similar to State v.
Zampich (Mont. 1983), 667 P.2d 955, 40 St.Rep. 1235, where in
the case of a mitigated deliberate homicide conviction, we
found no error in the trial court's failure to make specific
findings pursuant to Section 46-18-222(2) and (3) when the
trial court imposed a sentence greater than the mandatory
minimum sentence for mitigated deliberate homicide. Just as
it would have been wasteful for the trial court in the
Zampich case to make findings about unusual or substantial
duress when it had concluded that more than the mandatory
minimum sentence should be imposed, it would be equally
redundant to order a separate hearing into similar mental
conditions in this negligent homicide case where the maximum
sentence was applied.
In any event, the trial court heard substantial evi-
dence during the trial from psychologists and lay witnesses
concerning defendant's mental state. Had a separate hearing
under Section 46-18-222 been required, the fact that a hear-
ing was not held would have been harmless error in view of
the testimony offered at trial.
Finally, the off-the-record meeting between the judge
and the probation officer without the presence of defendant
or counsel was not improper - - - case.
in this In State v.
Redding (Mont. 1984), 675 P.2d 974, 41 St.Rep. 147, this
Court held that these off-the-record proceedings were viola-
tive of due process. However, the Redding rule is to be
applied prospectively, and does not pertain to "sentences
rendered before the date of [the] decision [Jan. 24, 19841 "
unless the information in the presentence report "is shown to
be inaccurate or prejudicial." Redding, supra, 675 P.2d at
977, 41 St.Rep. at 147. Here, defendant was sentenced on
August 18, 1982, and does not allege any inaccuracies in the
presentence report or any prejudice arising from its use by
the trial judge. Accordingly, the Reddinq rule will not be
applied in this case.
The conviction and sentence of defendant Douglas
FlcKenzie Stroud are affirmed.

We concur:

Chief Justice
' -.
.

Justices
Mr. Justice John C. Sheehy, dissenting:

I am amazed that defendant Stroud has appealed his
conviction for negligent homicide in this case. On the
facts, he is fortune's favorite in that the jury did not find
him guilty of deliberate or at least mitigated homicide. The
sentencing judge slapped him with a hard sentence for a
negligent crime, but if his appeal were successful. and
another trial. granted, his luck might run out and he might
find himself convicted of a greater crime. Since he appeals,
I take it seriously, I would grant his wish and reverse for a
new trial on two grounds treated lightly by the majority.
First, I believe the District Court erred in
interrogating prospective jurors without a record outside the
presence of counsel and defendant. While we have not yet
decided whether -- examination of jurors is part of a
voir dire
criminal trial, it seems as much a part as a starter is of an
automobile. It is not enough, therefore, to approve a
private empanelment of iurors hy relying on the later
statement of the judge that he said nothing prejudicial. to
the defendant. We have no record to support the judge, and
prejudice must be presumed. Section 46-16-303, MCA, requires
the examination of prospective iurors to be conducted by the
county attorney and the defendant or his counsel. It also
permits "additional" examination by the court. I wou1.d hold
that such "additional" examination can only occur at or
immediately after the --by counsel, with all present.
voir dire
Second, it does not make judicial sense to state that
under Just (184 Mont. 262, 602 P.2d 957) the District Court
must sua sponte qive a limiting instruction on other crimes
evidence, and then fault defense counsel for not objecting
when the District Court fails its duty. Defense counsel does
not thereby entrap the court; it entraps itself by its own
neglect. Since other crimes evidence is admissible only as
an exception to the rule of evidence, this Court must be
careful to make sure the jury understands its exceptional
nature, and its limited probative use. The state should be
as alert as the Court in making sure the explanatory
instruction is given, especially since it is the state that
marshals the other crimes evidence. Yet the state gains by
the majority's rule on this point. It is the defendant,
whose innocence should be presumed, who loses for an
oversight of the Court. A sense of fair play should dictate
another result.
As to the sentence itself, I would return for
resentencing before another district judge because of the
incident where the District Court here had a private
interview with the pre-sentence investigator before imposing
sentence. Defendant's due process rights were violated.
State v. Redding (Font. 1984) 41 St.Rep. 147, - Mont . - I

675 P.2d. 974.

t
I join in the dissent sf Mr. Justice Sheehy.