State v. Freeman

No. 14503

I N THE SUPHEME C W O THE STATE O PKNCZWI
O F F

1979

THE ST- O MXCWA,
F

P l a i n t i f f and Respondent,

MICHAEL SaYIT F E M N
RE A ,

Defendant and Appellant.

Appsal f r m : D i s t r i c t Court of t h e Thirteenth Judicial D i s t r i c t ,
Honorable R D b e r t H. FJilson, Judge presiding.

Counsel of Record:

For Appellant:

John L. Adams argued, Billings, rJbntana

For Respondent:

Hon. Mike Greely, Attorney General, Helena, Mntana
Richard Larson, Assistant Attorney General, argued, H e l e n a ,
Mntana
Harold F.Hanser, County Attorney, Billings, Wntana

SMtted: June 5, 1979

Decided. SEF 1k
Mr. Justice John C. Sheehy delivered the opinion of the Court.

This is an appeal by defendant, Michael Scott Freeman,
from a judgment of conviction of mitigated deliberate
homicide entered in the District Court, Thirteenth Judicial
District, Yellowstone County. Defendant was sentenced to
ten years inprisonment, with three years suspended.
Early in the morning of September 11, 1977, Kirk Nelson
and two companions drove in an automobile to the home of
Michael Scott Freeman. Nelson had a "bone to pick" with
Freeman in that earlier that evening Nelson had been arguing
with a man named Larry Foster who imputed to Freeman statements
that Freeman had made to Foster concerning Nelson.
Nelson arrived at Freeman's home at approximately 2 : 0 0
a.m. He walked up to the house alone and knocked on the door.
Freeman awakened, answered the door, and Nelson entered the
house. Shortly thereafter, the two men who had been waiting
in Nelson's car also entered the house. Freeman testified
at trial that Nelson threatened him repeatedly, but the two
companions testified that no threats were made in their
presence in the house.
At Nelson's request, the two companions left in Nelson's
car. They returned a short time later and found the house
empty and Freeman's car gone.
Freeman testified that Nelson ordered him to get dressed
and accompany him to Raymond Best's house for a meeting with
Foster. Freeman claims that Nelson repeatedly threatened
to pistol-whip Freeman with the handgun he was carrying.
However, at no time did Nelson take the gun out of his jacket.
 Freeman drove his car to Best's house with Nelson
riding in the front passenger seat. He parked the car
directly in front of the house and Nelson got out and
started to walk toward the gate. Freeman got out of his
car slowly, which enabled him to grab a gun he kept hidden
under the passenger seat. As Freeman stepped out, he aimed
the gun over the hood of the car and shot Nelson in the hip.
Freeman fired three more shots in rapid succession as Nelson
moved away. Nelson did not fire his weapon.
At 2:40 a.m., Freeman walked into the Billings Police
Station and told the authorities that he had just shot Nelson.
He explained what had happened and was taken into custody.
The police searched for Nelson but did not find him. At
approximately 6:30 a.m. that morning, David Ramirez discovered
Nelson's body on the front porch of the Ramirez house, which
is located in the same neighborhood as the Best house. A
loaded .357 caliber pistol was found on the body, and
several .357 caliber shells. Also, a set of brass knuckles,
a razor blade, paint scraper, and a small quantity of marijuana
were found in Nelson's pockets.
The subsequent autopsy established that Nelson bled to
death from the bullet wound in his left hip.
On September 12, 1977, Freeman was charged with the
crime of deliberate homicide. A trial date of November 17,
1977 was set. However, on November 14, 1977, the Yellowstone
County Attorney filed an amended information which included
further charges against Freeman of conspiracy to commit
homicide and aggravated burglary of Nelson's home. Larry
Foster was also charged with these crimes in the amended
information.
Freeman gave notice of his intent to rely on self-
defense on November 16, 1977. Freeman and Foster were arraigned
on November 21, 1977. Both men entered pleas of not guilty.
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 On December 5, 1977, Freeman himself filed on his
own behalf a "demand for speeatrial or motion to dismiss
for lack of evidence" and a further "motion to withdraw
court-appointed counsel."
A trial date of April 4, 1978, was set for Freeman
and Foster, who were to be tried jointly. Prior to trial
on February 15, 1978, the District Court heard arguments
on Freeman's motions and determined (1) a truth serum test
Freeman had requested would be permitted, but the results
would be inadmissible as evidence; (2) a special investigator
for the defense would be permitted; and (3) a motion for
severance of trials would be continued at Freeman's counsel's
request.
On March 14, 1978, Freeman moved for acquittal due
to the lack of speedy trial.
On April 4, 1978, at the final pretrial conference,
the District Court denied defendanes motions for acquittal
for lack of speedy trial and granted his motion for severance
of trials. Trial of the charges against Freeman began
immediately thereafter.
The jury found Freeman guilty of mitigated deliberate
homicide on April 11, 1978. The conspiracy charge had
previously been dismissed by the court at the close of the
prosecutor's case. On April 21, 1978, Freeman was sentenced
to ten years in prison, with three years suspended and credit
for time served.
Larry Foster ultimately entered a plea of guilty to
the charge of aggravated burglary of Nelson's home. The
remaining charges against him were dismissed on the County
Attorney's motion.
Freeman timely appealed the judgment of conviction against
him and the matter is now before us for decision.
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 Freeman's appeal gives us these issues to consider:

(1) Was Freeman denied a speedy trial?
(2) Was the jury inadequately instructed on the
defense of self-defense?

(3) Is there a statutory conflict between the defense
of self-defense and the crime of mitigated deliberate homicide?
(4) Did the prosecution's presentation of evidence
concerning the alleged conspiracy so cloud the jury's mind
that Freeman was denied a fair and impartial trial?
A speedy trial is a federal and state constitutional
right. U.S.Const. Amend. VI; 1972 Mont. Const., Art. 11,
524. When a speedy trial inquiry is triggered, we examine
the issue under the balancing test suggested in Barker v.
Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
The factors in Barker'kave no talismanic qualities;

courts must still engage in a difficult and sensitive balancing

process" to determine whether a speedy trial has been denied.
407 U.S. at 533.
We have followed the Barker test in State v. Tiedemann

(1978), Mont. , 584 P.2d 1284, 35 St.Rep. 1705; and
State v. Collins (1978), Mont . , 582 P.2d 1179,
35 St.Rep. 993. We held that the balancing test was required
after a delay of twelve months in State v. Steward (19751,
168 Mont. 385, 543 P.2d 178; ten months in State ex rel.
Sanford v. District Ct. Thirteenth J. D. (1976), 170 Mont.

196, 551 P.2d 1005; and seven months in Fitzpatrick v. Crist
(1974), 165 Mont. 382, 528 P.2d 1322. In Fitzpatrick, we
held that a seven-month delay was long enough to shift to
the State the burden of explaining the reason for the delay
and showing the absence of prejudice.
If the date of Freeman's arrest is used as a starting
point, the pretrial delay totals 207 days. If the date the
- 5-
amended information was filed, the time elapsed to the time
of trial totals 142 days.
The time from Freeman's arrest until trial on the charges
consumed approximately seven months. The State contends
that the delay should be computed only from the time the
amended information was filed. However, such computation
of time would be insufficient. Freeman was arrested and placed
in jail on September 11, 1977, and remained there until trial,
seven months later. He was accused of a crime on the day
he was arrested and his right to a speedy trial accrued as of
that date. Therefore, the total delay in Freeman's case
approximates the delay found in Fitzpatrick, supra, and
so the balancing test of Barker must be considered here.
Once the burden has shifted to the State to explain the
reason for the delay, the question becomes, to whom is the
delay to be attributed? For the State, the question is
whether the prosecution was pursued with reasonable diligence.
State v. Carden (1977), Mont . , 566 P.2d 780, 34

St.Rep. 420. Typically, the courts look for "dead time" in
which nothing is done by the prosecution in defendant's
case. On the other side of the coin, it must be determined
what percentage of the delay is chargeable to the defendant
and this amount of time must accordingly be deducted from
the total delay.
The lapse of time from September 11, 1977 to November

14, 1977, when the amended information was filed is explained
by the State in this way: Freeman's confession did not
reveal the involvement of Larry Foster in the alleged crime.
It was not until a subsequent investigation by the police
revealed that Nelson's house had been burglarized the same
night the shooting had occurred and that Larry Foster was a
likely suspect, that the authorities considered the possibility
of a conspiracy between Foster and Freeman to commit deliberate
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homicide. The State had a viable case against Freeman
when the original charges were filed. It was not a lack
of evidence or inexcusable neglect that delayed the trial.
Rather, it was the possibility of a considerably more complicated
crime that prompted the State to investigate further and
ultimately to file the amended information. Therefore,
because the State pursued the prosecution with reasonable
diligence, this lapse of time cannot be charged against the
State.
After the amended information was filed on November
14, 1977, there were several motions presented by defendant,
including a motion to withdraw court-appointed counsel that
Freeman had earlier filed on December 5, 1977. These motions
took up the time of the court and of the prosecution until
the time of trial. The motions included a motion of intent
to rely on self-defense, a motion for additional time to
give notice valid by witnesses, a motion for severance, a
motion to suppress the evidence, a motion for disclosure of
investigative files, a motion for declaration of possible
penalty, a motion for continuance and several others. True,
some of these motions were filed by codefendant, Larry Foster,
but they involved the same cause and required the court's

consideration to rule on such time-consuming motions.
Therefore, because the State pursued the prosecution
with reasonable diligence and because a large part of the
delay was due to the filing and consideration of numerous
defense motions, prejudice to Freeman caused by the state
cannot be presumed.
It is true that Freeman effectively asserted his right
to a speedy trial on March 14, 1978, by filing a motion
for acquittal for denial of a speedy trial. There is no

dispute on this point.
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 With respect to the fourth Barker factor, whether the
delay prejudiced Freeman's case, it must be admitted that
Freeman was incarcerated from the time of his arrest until
the time of trial. Undoubtedly he experienced anxiety and
concern as evidencdby his motions on his own behalf relating
to his counsel and for a speedy trial. However, there is no
showing by Freeman that he lost essential witnesses or that
his right to a fair trial was impaired.
"The fourth factor to be considered, the
prejudice to the defendant, has no support
in the record. Nothing has been brought
to our attention that would show the
delay hampered the defendant in any way
in presenting his defense. Defendant
claims the delay caused him concern
and anxiety, but these are inherent
in any criminal case. Barker v. -
- Viilgo, supra, . . .
"We find therefore that defendant
fails to meet the criteria necessary to
show he had been denied a speedy
trial by the state. State ex rel.
Sanford v. District Court, supra; Barker
v. Wingo, supra; State v. Steward (1975),
168 Mont. 385, 388, 543 P.2d 178, 181."
State v. Collins (1978), Mont . I

582 P.2d 1179, 1187, 35 St.Rep. 993, 1003.
On balance, it therefore appears the State was diligent
in pursuing the prosecution of Freeman's case. Most of the
delay is attributable to him and to his codefendant. No
prejudice has been shown that would lead us to conclude
Freeman has been denied due process by a lack of speedy trial.
With respect to whether the court adequately instructed
the jury regarding Freeman's defense of self-defense, we have
examined the instructions given and those offered and refused
in light of those given, and find that the jury in this case
was adequately instructed on that point.
The court gave the following instructions:
"Given Instruction No. 16:
"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 injury
only if he reasonably believes that such
force is necessary to prevent imminent
death or serious bodily harm to himself
or the commission of a forcible felony.
"Given Instruction No. 17:
"You are instructed that forcible felony
means any felony which involves the use
or threat of physical force or violence
against any individual, and includes the
crimes of kidnaping, assault, unlawful
restraint and intimidation.
"Given Instruction No. 18:
"'Force likely to cause death or serious
bodily harm' includes but is not limited
to the firing of a firearm in the direction
of a person, even though no purpose exists
to kill or inflict serious bodily harm.
"Given Instruction No. 19:
"A person is not guilty of an offense
by reason of conduct which he performs
under the compulsion of threat or menace
of the imminent infliction of death or
serious bodily harm, if he reasonably
believes that death or serious bodily
harm will be inflicted upon him if he
does not perform such conduct.
"Given Instruction No. 20:
"'Serious bodily injury' means bodily
injury which creates a substantial risk
of death or which causes serious permanent
disfigurement or protracted loss or impairment
of the function or process of any bodily
member or organ. "
In State v. Collins, supra, 582 P.2d at pp. 1184, 1185,
this Court considered objections quite similar to those
raised here as to instructions in a self-defense case. In
Collins, as here, defendant had been charged with deliberate
homicide and the jury convicted him of mitigated deliberate
homicide. Defendant contended that he acted in self-defense
and that therefore, his actions were justified or exonerated
by the circumstances surrounding the death of the decedent.
 In Collins, we looked to the law on justification or
exoneration, and examined the instructions in the light
of the applicable statutes establishing such defenses. In
doing likewise here, we find that section 45-3-102, MCA,
provides :
"Use of force in defense of person. A person
----
is justified in the use offorce or threat to
use force against another when and to the extent
that he reasonably believes that such conduct
is necessary to defend himself or another against
such other's imminent use of unlawful force.
However, he is justified in the use of force likely
I 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."
When court instructions nos. 16 through 20, as we have
set forth above, are examined in light of section 45-3-102,
MCA, it is apparent that the court fairly and fully instructed
the jury on the law relating to justification or exoneration
for criminal conduct. As we said in Collins, 582 P.2d at
pp. 1184, 1185:
.
". . Using the test applied in State v.
Porter (1964), 143 Mont. 528, 539, 391 P.2d
704, the instructions given on justifiable
force gave the defendant ample opportunity to
expound to the jury in argument his theory
with respect to the use of force as self-
defense against an unlawful act."
We will not set out in this opinion Freeman's offered
instructions nos. 2, 10, and 18, refused by the court, which
Freeman now contends were necessary in connection with his
defense of justification or exoneration. It is enough to
say that we have examined these instructions, and they would
not have added substantially anything that was not already
said by the court in its instructions on the same subject.
Nothing appears to us, from the instructions given, to
indicate that Freeman or his counsel, was prevented in
final argument from presenting fully his contentions on self-
defense, because the instructions given enabled him fully to
state the law to the jury as set forth in the court's
instructions:
"We have often held that it is not error for
a trial court to refuse to give a requested
instruction, or by implication a portion thereof,
if the instruction's legal theory was adequately
covered by the instructions that were given and
as long as the rights of the defendant were
fully protected. . ." State v. Lagge (1964),
143 Mont. 289, 295, 388 P.2d 792, 795.
Freeman also maintains that the court improperly
refused his offered instruction no. 21, which would have
instructed the jury that if the evidence of the case was
susceptible to two constructions, one of which was consonant
with guilt and the other consonant with innocent, it was
the jury's duty to adopt the interpretation which was con-
sonent with innocent. That instruction is generally given
where the State relies on circumstantial or indirect evidence
to prove its case. The instruction has no application where
the evidence is direct with respect to the crime charged.
The next issue we consider is Freeman's contention that
there is a statutory conflict between the definition of
mitigated deliberate homicide and a defense of justification
or exoneration.
Neither the State, nor counsel for Freeman, discussed
this issue in brief or oral argument, but we presume
that the conflict is the same as the defendant contended
existed in State v. Collins, supra. Mitigated deliberate
homicide is defined in section 45-5-103, MCA, as a homicide
"which would otherwise be deliberate homicide [but] is
committed under the influence of extreme mental or emotional
stress for which there is a reasonable explanation or
excuse. . ." That definition gave rise to a contention in
Collins, supra, about which we said:
"One other contention of this final issue is
that the verdict of the jury is inconsistent
with the evidence in that since the defendant
 was convicted of mitigated deliberate homicide,
the jury must have found defendant was acting
under extreme mental or emotional stress
brought about by the apparent intended
attack upon his person and his property.
Defendant contends the only possible
mental or emotional stress for which
there is a reasonable explanation or
excuse suggested by the evidence is
that defendant feared for himself
in the circumstances described.
Therefore, defendant argues, if the
jury found such stress to exist, it
could only be such stress as would
permit self-defense. Then defendant
returns to his former argument that
since the court did not instruct the
jury that it should acquit the defendant
when self-defense was established, the
verdict is inconsistent with the evidence.
"What this contention of defendant
overlooks is that while under the facts
of this case the jury could have found
defendant was acting under mental or
emotional stress brought about by the
attack by Gardipee, the jury could also
have found the counter-force used by the
defendant was so excessive as not to be
reasonable and justified. Section 94-3-102,
R.C.M. 1947. The jury could have concluded
that t k force used in self-defense by defendant,
the shooting, was not the action of a
reasonable person under the circumstances.
In that situation, a verdict of mitigated
deliberate homicide is justified. It is
not given to us, however, to look into
the minds of the jurors to ascertain
how they arrived at their verdict. When,
as here, we find the jury was fairly
instructed, we must leave the weighing
of the evidence and determination of the
facts to that jury. It is not within
our province to set aside the verdict
here." 35 St.Rep. at 1005, 582 P.2d at
1187-1188.
What we said in Collins, supra, adequately disposes
of the contention that there is a statutory conflict
between the defense of justification and the crime of
mitigated deliberate homicide, where the jury finds in
fact that mitigated deliberate homicide was committed.
Freeman's final contention is that the presenting
of evidence concerning the alleged conspiracy between
Freeman and Larry Foster so clouded the jury's mind that
Freeman was denied a fair and impartial trial.
 The charge of conspiracy to commit deliberate
homicide was dismissed by the District Court at the
close of the State's case. The District Court gave
the following instruction to the jury:
"Given Instruction No. 3.
"You are instructed that the charge of
conspiracy to commit deliberate homicide
has by the court been dismissed, and is
not to be considered by you. Evidence
has been received in this Court pertaining
to such alleged criminal conspiracy to commit
deliberate homicide. You will disregard
such evidence and any evidence pertaining to
the charge of deliberate homicide as else-
where in these instructions defined, and
will draw no inferences nor make any surmises
from any evidence offered other than the
evidence which may pertain to the charge of
deliberate homicide. You will consider only
the evidence pertaining to the charge of
deliberate homicide and the defense of self-
defense, and will render your decision of
innocence or guilt solely on such evidence."
"The 'general rule' is that where the trial judge withdraws
improper testimony from the jury's consideration, such an
instruction is presumed to cure any error which may have been
committed by its introduction." Anderson v. State (Alaska,
1968). 438 P.2d 228, 233 n. 15. The Alaska Supreme Court
cites a United States Supreme Court decision, Pennsylvania
CO. v. ~ o y
(1880), 102 U.S. 451, 459, 26 LoEd- 1411 145.

Although the high court decision involved a civil suit, the
reasoning is applicable here:
.
". . The charge from the court that the jury
should not consider evidence which had been
improperly admitted, was equivalent to
striking it out of the case. The exception
to its admission fell when the error was sub-
sequently corrected by instructions too clear
and positive to be misunderstood by the jury.
The presumption should not be indulged that
the jury were too ignorant to comprehend, or
were too unmindful of their duty to respect,
instructions as to matters peculiarly within
the province of the court to determine. It
should rather be, so far as this court is
concerned, that the jury were influenced in
their verdict only by legal evidence. Any
other rule would make it necessary in every
trial, where an error in the admission of proof
 is committed, of which error the court becomes
aware before the final submission of the case
to the jury, to suspend the trial, discharge
the jury, and commence anew. A rule of practice
leading to such results cannot meet with approval."
In State v. Gander (1976), 220 Kan. 88, 551 P.2d 797,
the jury considered two photographs and a line-up sheet that
had not been admitted at trial. When the mistake was discovered
the trial judge called the jury into the courtroom and instructed
it to disregard the exhibits. The Supreme Court of Kansas said:
"It is basic that an admonition to the jury normally cures any
prejudice from the improper admission of evidence. (Citing
cases.) This is not a case in which 'it cannot be said the
jury was not prejudiced' (citing cases), and we thus hold
that the instruction cured any error."
The judgment of conviction is affirmed.

d
Justice
We Concur: