No. 13503
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1977
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
MYRON LARSON ,
Defendant and Appellant.
Appeal from: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
H o n o r a b l e James D. F r e e b o u r n , J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
L e o n a r d J . Haxby a r g u e d , B u t t e , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
A l l e n B. C h r o n i s t e r a r g u e d , A s s i s t a n t A t t o r n e y
G e n e r a l , H e l e n a , Montana
J o h n G. W i n s t o n , County A t t o r n e y , B u t t e , Montana
Nadine S c o t t a r g u e d , Deputy County A t t o r n e y ,
B u t t e , Montana
Submitted: September 3 0 , 1977
Decided : JAB 18 I978
Filed: J.Ab?18 -.&
.--
..
Clerk
Mr. J u s t i c e D a n i e l J. Shea d e l i v e r e d t h e Opinion o f t h e C o u r t .
Defendant Myron Larson a p p e a l s from a c o n v i c t i o n e n t e r e d
i n t h e D i s t r i c t C o u r t , S i l v e r Bow County, on c h a r g e s o f m i t i g a t e d
d e l i b e r a t e homicide, i n v i o l a t i o n o f s e c t i o n 94-5-103, R.C.M.
1947, and a g g r a v a t e d a s s a u l t , i n v i o l a t i o n o f s e c t i o n 94-5-202,
R.C.M. 1947.
On March 1 3 , 1975, i n t h e D i s t r i c t C o u r t , S i l v e r Bow
County, d e f e n d a n t was c h a r g e d by I n f o r m a t i o n w i t h two c o u n t s o f
m i t i g a t e d d e l i b e r a t e homicide and one c o u n t o f a g g r a v a t e d a s s a u l t
f o l l o w i n g a s h o o t i n g i n c i d e n t a t a r e s i d e n c e i n B u t t e , Montana,
which r e s u l t e d i n t h e d e a t h s o f C u r t P h i l l i p s and Mike McDermott
and t h e wounding o f Mike P h i l l i p s .
D e f e n d a n t ' s f i r s t t r i a l on t h e s e c h a r g e s w a s d e c l a r e d a
m i s t r i a l when t h e j u r y was u n a b l e t o r e t u r n a v e r d i c t . Follow-
i n g t h e second t r i a l , d e f e n d a n t was found g u i l t y o f m i t i g a t e d
d e l i b e r a t e homicide f o r t h e k i l l i n g o f C u r t P h i l l i p s and a g g r a v a t e d
a s s a u l t f o r t h e wounding o f Mike P h i l l i p s . Defendant was found
n o t g u i l t y o f m i t i g a t e d d e l i b e r a t e homicide i n t h e d e a t h o f Mike
McDermott. Defendant was s e n t e n c e d t o p r i s o n t e r m s o f 30 and 1 5
years, t o run concurrently.
On F e b r u a r y 1 6 , 1975, between t h e h o u r s o f 2:00 and 3:30
a.m., a d r i n k i n g p a r t y was i n p r o g r e s s a t t h e B u t t e a p a r t m e n t o f
Gary L a r s o n , d e f e n d a n t ' s b r o t h e r . Approximately 1 5 t o 20 p e o p l e
were t h e r e , i n c l u d i n g Myron and Gary L a r s o n , C u r t and Mike P h i l l i p s ,
and Mike McDermott.
Defendant and C u r t P h i l l i p s g o t i n t o a n argument o v e r t h e
opening o f a d o o r i n t h e k i t c h e n . P h i l l i p s wanted t h e d o o r t o
remain c l o s e d and d e f e n d a n t wanted i t opened t o l e t f r e s h a i r
i n t o t h e apartment. Defendant t e s t i f i e d P h i l l i p s swung f i r s t and
he responded by s t r i k i n g P h i l l i p s w i t h a l e a t h e r s a p p h e was
carrying. The two men w r e s t l e d t o t h e f l o o r . ~ e f e n d a n t ' sb r o t h e r
Gary separated the two combatants and told Curt Phillips to
leave the apartment. Phillips refused to leave. Gary Larson
then went to his bedroom, retrieved a .38 caliber pistol,
returned to the kitchen and fired a shot into the ceiling.
Gary then placed the gun in the refrigerator and began fighting
with Curt Phillips. Phillips managed to get on top of Larson
and was beating him with his fists and the plaster cast he had
on his arm, as the two men were on the floor.
Defendant, whose face and jaw at the time were wired
together as the result of an altercation in which he had been
involved some five weeks earlier, attempted to enlist the aid of
several persons in an effort to break up the fight. One person
tried to pull Phillips off of Gary Larson but abandoned the task
when he was struck or kicked by Phillips' brother Mike.
As Curt Phillips was standing over and apparently kick-
ing Gary Larson, defendant acted. He pulled a .357 caliber pistol
from his back pocket holster and shot Phillips in the back. Mike
Phillips then lunged at defendant and defendant shot him in the
arm, knocking him down. Mike McDermott then grabbed defendant,
the two men wrestled backwards into a bathroom and the gun dis-
charged, killing McDermott.
After the shootings someone called the Butte city police.
The officers who arrived at the scene determined that Curt Phillips
and Mike McDermott were dead. Defendant told the officers he
had shot the two men, gave one of the officers the .357 and the
leather sapp, and was taken into custody.
Defendant presents five issues for review:
1) Whether the District Court should have either dis-
missed the action or directed a verdict in defendant's favor on
the grounds of insufficient evidence.
2) Whether the verdicts were consistent with the
evidence presented relative to the defenses of self-defense
and defense of another.
3) Whether the verdicts were consistent with given
instructions on self-defense and defense of another.
4) Whether several given instructions were proper and
whether offered but refused instructions should have been given.
5) Whether defendant was prejudiced by the state's
attempts to have certain items admitted as evidence.
Issues 1 and 2 challenge the sufficiency of the evidence
to support defendant's convictions. Defendant contends the
evidence shows his conduct was reasonable and the shootings were
justifiable because he was acting in defense of himself and his
brother.
Section 94-3-102, R.C.M. 1947, deals with the justifiable
use of force in defense of the actor or another and provides in
part :
"A person * * * is justified in the use of force
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 or another, or to prevent
the commission of a forcible felony."
This Court stated in State v. Brooks (19671, 150 Mont. 399, 410,
" * * * to justify a homicide by self-defense,
there must be evidence that the party killing
acted under the influence of reasonable fear
that someone was going to be murdered or serious-
ly injured. * * *. "
Evidence presented by defendant went to establishing the
reasonableness of his fear for the safety of his brother as
justification for the shooting of Curt Phillips and the reason-
ableness of his fear for his own safety as justification for the
shooting of Mike Phillips.
This evidence included testimony from a psychologist who
evaluated defendant at Warm Springs State Hospital to the effect
d e f e n d a n t w a s f e a r f u l f o r h i s b r o t h e r and h i m s e l f on t h e n i g h t
o f t h e s h o o t i n g s and t h a t s u c h f e a r was r e a s o n a b l e . Defendant's
own t e s t i m o n y i n t h i s r e g a r d i n c l u d e d t h i s exchange:
"Q. A t t h a t p a r t i c u l a r p o i n t i n t i m e d i d you have
any f e a r f o r t h e w e l l b e i n g o r t h e l i f e o f Gary?
A. Y e s , I d i d .
"Q. Why i s t h a t ? A. W e l l , I knew what I ' d gone
t h r o u g h when somebody had worked m e o v e r , knocked
m e o u t and worked m e o v e r . I woke up i n t h e
hospital. I d i d n ' t e v e n know what happened u n t i l
t h e d o c t o r e x p l a i n e d t o m e t h a t t h e s i d e o f my
head w a s c a v e d i n . * * * I was -- I w a s r e a l l y
a f r a i d f o r my b r o t h e r . I t w a s j u s t r e a l l y a p p a r e n t
t o m e t h a t h e c o u l d s u f f e r t h e same k i n d o f damage,
i f n o t more.
''a. Did you t h i n k a t t h a t p a r t i c u l a r t i m e t h a t
C u r t P h i l l i p s was c a p a b l e and a b l e t o i n f l i c t t h a t
t y p e o f i n j u r y ? A. M God, y e s . C u r t was a h e f t y
y
p e r s o n and h e was t h r o w i n g a l l o f h i s w e i g h t i n t o
t h o s e k i c k s . The f i r s t t i m e h e k i c k e d m b r o t h e r ,
y
my b r o t h e r was t r y i n g t o g e t up o f f t h e f l o o r l i k e
t h i s (showing) and t h e f i r s t k i c k , h e g o t Gary i n
t h e s i d e o f t h e f a c e and i t spun him c o m p l e t e l y
around l i k e h e was o n a s p i t o r s o m e t h i n g , j u s t
completely around. I c o u l d n ' t b e l i e v e it. I
t h o u g h t , boy i f I g o t k i c k e d l i k e t h a t , my f a c e
would f a l l a p a r t a g a i n .
"Q. A t t h a t p a r t i c u l a r p o i n t i n t i m e d i d you
make any e f f o r t t o t a k e t h e s a p p and go o v e r and h i t
C u r t i n t h e back o f t h e head w i t h i t o r a n y t h i n g t o
s t o p him from d o i n g any f u r t h e r damage? A. I a s k e d
Mike t o p l e a s e s t o p i t , o r I s a i d t o him ' S t o p him.'
And Mike had t h r e a t e n e d m e t h a t I ' d b e t t e r n o t do
a n y t h i n g t o s t o p them o r h e ' d do t h e same t o m e . So
I -- I was r e a l l y a f r a i d t h a t i f I t o o k a s t e p and
t u r n e d m back t o Mike t h a t h e ' d l a n d b a s e m on t h e
y e
back o f t h e head o r something.
"Q. J u s t p r i o r t o t h e t i m e t h a t you --
o r t h a t Curt
w a s s h o t , what w a s h e d o i n g ? A. H e was b e n d i n g o v e r
t o g i v e my b r o t h e r a t h i r d k i c k .
"Q. What d i d you d o t h e n ? A. I s h o t . I had t o s t o p
him. I had t o s t o p him from k i c k i n g . A kick l i k e
t h a t c o u l d do some damage. Those s h o e s w e r e h e a v y . "
The s t a t e c o n c e d e s d e f e n d a n t was n o t r e q u i r e d t o s i t
i d l y by w h i l e h i s b r o t h e r was b e i n g b e a t e n , b u t a r g u e s d e f e n -
d a n t ' s u s e o f t h e p i s t o l was a n e x c e s s i v e u s e o f f o r c e and un-
r e a s o n a b l e under t h e circumstances. Evidence t h e s t a t e p r e s e n t e d
tended to show Gary Larson was not badly beaten by Curt Phillips.
To the officers who arrived at the scene shortly after the
shootings, defendant's brother did not appear to be injured,
and he made no complaint to them of having been beaten. Curt
Phillips' brother Mike testified the fight was "fair". The
only witness called who was at the scene and was unrelated to
any of the participants testified she did not see Curt Phillips
kicking Gary Larson; she did see Phillips hitting Larson with
his cast; and, that she had not seen all of the fight.
Defendant testified he was not intoxicated and was think-
ing clearly at the time of the incident. He also testified he
had been around guns since an early age and that although he
had not meant to kill Curt Phillips, he "probably could have"
wounded him. Testimony indicated only defendant and his brother
were armed with any kind of weapon at the time of the incident.
As to the wounding of Mike Phillips, the testimony was
similarly conflicting. Defendant asserted he was protecting
himself from Phillips' attack when he shot the other man in the
arm. Phillips testified he was moving away from defendant when
he was shot.
Defendant argued the jury improperly rejected his claim
the shootings were justified under the circumstances. Whether
the circumstances were such as to justify defendant's actions
is clearly a question of fact for the jury. State v. Fine (1931),
90 Mont. 311, 315, 2 P.2d 1016; State v. Harkins (1929), 85 Mont.
585, 601, 281 P. 551. The jury may have believed defendant
feared for his own life or for the life of his brother, and
still found the force defendant used to have been excessive.
As this Court stated in State v. Fuger (1976), Mont . I
554 P.2d 1338, 1341, 33 St.Rep. 887, 890, citing the annotator's
note to section 94-3-102, R.C.M. 1947:
" ' * * * the proper amount of force which
may be used and remain justified -- [is] a ques-
tion to be determined by the jury.'"
There was sufficient evidence for the jury to determine
defendant's fatal shooting of Curt Phillips and his wounding
of Mike Phillips were not justified.
Defendant's Issues 3 and 4 challenge the trial court's
giving of certain instructions and refusal of others. Defen-
dant contends two of his proposed instructions relative to the
defenses of self-defense and defense of another should have been
given. Four instructions directly concerning these matters, two
offered by defendant and given over the state's objections and
two offered by the state and given without objection, were given.
The given instructions accurately and completely set out the law
concerning self-defense and defense of another, and are not
challenged by defendant. The refused instructions were merely
repititious.
Defendant contends the district court erred in refusing
two of his proposed instructions on presumption of innocence
and reasonable doubt. Seven instructions on these matters were
given, and defendant does not argue they were insufficient or
incorrect statements of the law. He argues that he was entitled
to a "very short and brief statement" as to these requirements.
Since the legal theories of these proposed instructions were
covered by given instructions, it was not error for the trial
court to refuse them. State v. Lukus (1967), 149 Mont. 45, 53,
423 P.2d 49.
Defendant also challenges given Instruction No. 20, argu-
ing his proposed Instruction No. 14 should have been given in its
place. Defendant's proposed instruction No. 14 states:
"A person acts knowingly with respect to his con-
duct or to an element of the offense when he is
aware of his conduct or when he is aware of the
existence of circumstances described by the
statute defining the offense."
As given, given Instruction No. 20 includes the above, and adds:
"(When knowledge of the existence of a particular
fact is an element of the offense, such knowledge
is established if a person is aware of a high
probability of its existence.)"
Defendant argues the additional language further defining
"knowledge" was prejudicial as having no relation to self-defense
and defense of another. The crimes charged, mitigated deliberate
homicide and aggravated assault, require "knowledge" or "purpose"
on the part of the accused. The jury therefore was entitled to
a complete definition of "knowledge" and the given instruction,
taken almost verbatim from section 94-2-101,(27), R.C.M. 1947,
was such a definition.
Defendant's Issue 5 contends he was prejudiced by the
state's attempts to have certain items admitted into evidence.
The state sought to have a . 3 5 7 pistol, a holster, a leather
sapp, and some bullet fragments, among other items, received
during its case-in-chief. Defendant objected to their admission
on the grounds of insufficient foundation, with the trial court
reserving its ruling. During cross-examination of defendant
the leather sapp was admitted; the other exhibits were ultimately
refused.
There was a connection between these items and the
crimes charged. All were recovered at the scene of the shoot-
ings by the officers called to investigate. It was during the
testimony of these officers that the state tried to lay a foun-
dation for the admission of these items. The refusal of the
items reflects the inability of the state to lay a proper foun-
dation for the admission of evidence, not a bad faith attempt
to prejudice the jury. None of the items was irrelevant, imma-
terial, or otherwise inadmissible in an essential way, and
defendant's conviction cannot be reversed on the grounds their
admission was attempted.
The judgment is affirmed.
n
Chief Justice /I