No. 86-16
TN THE FUPREMF COURT O THE STATE OF M N A A
F O T N
1987
STATE OF MONTANA,
P 1 a i n t i . f f and R e s p o n d e n t ,
-vs-
DONALD ROONE NICHOLS,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Madison,
The H o n o r a b l e F r a n k D a v i s , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Donald E . W h i t e a r g u e d , Rozeman, Montana
For R e s p o n d e n t :
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
J u d y Browning a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
Marc R a c i c o t , A s s t . A t t y . G e n e r a l , S p e c i a l Deputy
County A t t y . f o r Madison C o u n t y , H e l e n a , Montana
J o h n P . C o n n o r , J r . , County A t t o r n e y , B o u l d e r ,
Montana
Submitted: January 13, 1987
Decided: March 4 , 1 9 8 7
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant, Donald Boone Nichols was convicted of
aggravated assault, kidnapping and deliberate homicide in the
Fifth Judicial District Court of the State of Montana. He
appeals the convictions. We affirm.
Appellant and his son, Dan Nichols, began residing
permanently in the mountains of southwestern Montana in
August of 1983. On July 15, 1984, the Nichols encountered
Kari Swenson jogging on a trail near Big Sky, Montana. After
a brief conversation, appellant grabbed Kari by her wrists
and tied them with a rope. Kari was then bound by a chain to
a tree. Numerous individuals searched for Kari. On the
morning of July 16, 1984, Jim Schwalbe and Alan Go1dstei.n
located the Nichols' camp. They entered the camp in an
attempt to rescue Kari. Subsequent events culminated in the
death of Alan Goldstein and the fleeing of the Nichols.
Kari, who had been wounded, was abandoned by the Nichols and
rescued later that day. The Nichols were not apprehended
until December of 1984.
Numerous charges were filed against both Nichols.
Appellant was charged with the kidnapping of Kari Swenson,
the aggravated assault of Jim Schwalbe and the deliberate
homicide of Alan Goldstein. The jury was instructed as to
the elements of each offense. Appellant's testimony at trial
establishes the occurrence of every element of each offense.
The offense of kidnapping is committed if a person
"knowingly or purposely and without lawful authority
restrains another person by either secreting or holding him
in a place of isolation or by using or threatening to use
physical force." Section 45-5-302 (1), MCA.
Appellant admitted to restraining Kari, keeping
her in an isolated location, and using and threatening to use
physical force to do so.
Q. (By Mr. Racicot) Now, there's no question, is
there, that on July 15, 1984, that you restrained
Kari Swenson?
A. No.
Tr. Vol. 111, p. 116, In. 18-20.
Q. (By Mr. Racicot) And there's no question, is
there, that you restrained her and held her or
secreted her in a place of isolation by using
physical force?
A. Yes.
Q. And there's no question, is there in your mind,
that you did those things knowingly?
A. This physical force thing was more intimidation
than anything else, but we did use some force, yes.
Q. (By Mr. Racicot) At some point in time, did
you tell Kari Swenson that she'd better not scream
or you'd give her a couple black eyes and it didn't
make any difference to you whether or not she was a
woman?
A. No. The only--in my original--when I was
talking to her, all these questions, I told her
were important. I said that, "Try--we'll all try
to make everything smooth, and if you don't
cooperate, I'm going to give you two black eyes."
Tr. Vol. 111, p. 167, In. 16-25.
The relevant statute with respect to aggravated assault,
45-5-202 (1)(c), MCA (19831, provides:
Aggravated assault. (1) A person commits the
offense of aggravated assault if he purposely or
knowingly causes:
...
(c) reasonable apprehension of serious bodily
injury in another by use of a weapon.
On direct examination, appellant admitted that when Jim
Schwalbe came running toward him after the shooting of Alan
Goldstein, appellant placed another shell in the chamber of
his rifle, causing Schwalbe to turn and run into the bushes.
See Volume I11 of the transcript, pages 105 and 106. During
cross-examination, appellant again recounted his actions.
I wasn't threatened by the voice because I wasn't
worried about him until he started running toward
me. But he just hollered real loud, "You're
surrounded by two hundred men. You can't get
away." And then he ran toward me real fast.
Q. Then he ran back at you?
A. Yes, as soon as he said that, he ran right
toward me.
Q. And you pumped one in the chamber, and he saw
that?
A. Yes.
Q. You were ready to shoot him, too, weren't you?
A. I would have shot him, you [sic] damn right.
Tr. VOI.. 111, p. 210, In. 13-24.
A. ... He swerved right at me. And there he
saw me put the shell in and then he swerved, and
then he went there as far--about as far as to the
railing and stopped and looked at me a couple
seconds.
Q. No question in your mind that you're convinced
he saw you put that shell in the chamber?
A. I don't know why he would have swerved
otherwise. I did it quick, and he was running
right at me. He had to have seen me do it.
Jim Schwalbe had previously testified that appellant had
trained his rifle on him and that he feared he would be shot.
Tr. Vol. 111, p. 166, In. 23-25; p. 167, In. 1-6. This
undisputed testimony, together with the testimony of
appellant, supports a conclusion that appellant created a
reasonable apprehension of serious bodily injury in Schwalbe.
Finally, the statutes under which appellant was
convicted of deliberate homicide, the felony-homicide
statutes, state:
45-5-101. Criminal homicide. (1) A person
commits the offense of criminal homicide if he
purposely, knowingly, or negligently causes the
death of another human being.
45-5-102. Deliberate homicide. (1) Except as
provided in 45-5-103 (1), criminal homicide
constitutes deliberate homicide if:
...
(b) it is committed while the offender is engaged
in or is an accomplice in the commission of, an
attempt to commit, or flight after committing or
attempting to commit robbery, sexual intercourse
without consent, arson, burglary, kidnapping,
felonious escape, or any other felony which
involves the use or threat of physical force or
violence against any individual.
There is no doubt from the preceding testimony that the
offense of kidnapping and the offense of aggravated assault
were committed. During the commission of those crimes, Alan
Goldstein was shot and killed. Appellant testified that he
shot Goldstein. Tr. Vol. 111, p. 104, In. 7-9. He further
admitted that although he was but one cause of Goldstein's
death, he was the illegal cause.
Q. (By Mr. Racicot) Now, there's no question in
your mind, is there, that you caused the death of
Alan Goldstein?
A. There is a question, yes. That's part of the
equation. My part was the illegal part. It was
the part of the equation. This world isn't that
simple.
Q. It 's not apparently as simple as you'd like to
make it.
A. I no more caused his death than he caused it or
the sun had risen that morning that caused it. It
was just part of the equation, the illegal part,
that I admit was illegal.
Q. And you admitted that the gun that you shot
killed Alan Goldstein?
A. Yes, I did.
Q. So in that sense you put it into place--or into
play the events and the physical force that took
his life?
A. I put in the illegal part, yes.
Tr. VOI. 111, p. 120, In. 4-22.
Thus, even viewing the evidence in the light most
favorable to appellant, as we are required to do, there is
sufficient evidence on which to sustain the convictions.
However, the issues raised on appeal do not concern the
sufficiency of the evidence. They focus rather upon the
pre-trial publicity, the conduction of voir dire and the
constitutionality of Montana's felony-homicide rule.
Specifically, the following issues are raised:
1. Was appellant's right to a fair trial by an
impartial jury violated by undue pretrial publicity?
2. Was appellant's constitutional right to a fair trial
by an impartial jury violated by the court's limitation of
voir dire?
3. Did certain statements made by the prosecutor
substantially affect appellant's right to a fair trial?
4. Is Montana ' s felony-homicide statute,
S 45-5-102 (1) (b), MCA, unconstitutional?
5. Did the trial judge properly instruct the jury?
PRETRIAL PUBLICITY AND VOIR DIRE
The first two issues are intertwined. The amount and
nature of pretrial publicity surrounding a case affect the
defendant's ability to obtain a fair trial by an impartial
jury. Thus, freedom of the press rights guaranteed by the
First Amendment to the United States Constitution and art.
11, $ 7 of the 1972 Montana Constitution come face-to-face
once again with a defendant's right to a fair trial by an
impartial jury, guaranteed by the Sixth Amendment to the
United States Constitution and art. 11, 5 24 of our
Constitution.
Voir dire must be used to determine which potential
jurors have been so affected by pretrial publicity, they
would be unable to render a fair verdict. A trial judge must
therefore consider the volume and nature of the pretrial
publicity when determining how best to conduct voir dire.
It is undisputed that the media has focused considerable
attention on this case. Without specifically detailing the
stories told, we acknowledge that the case has been
sensationalized and that not all the publicity has been
neutral. A defendant's right to a fair trial by an impartial
jury is jeopardized when the publicity surrounding the case
is inflammatory in nature. State v. Holmes (Mont. 1983), 674
P.2d 1071, 1073, 40 St.Rep. 1973, 1976. Inflammatory
publicity is characterized by
editorializing on the part of the media or any
calculated attempt to prejudice public opinion
against [defendant] or to destroy the fairness of
the pool from which [defendant's] prospective
jurors would be drawn.
State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341,
350.
Rather than being inflammatory, much of the publicity in
this case was verified, if not generated, by defendant's
testimony before television cameras during his son's trial.
Defendant's testimony at that trial mirrors his testimony at
his own trial. Since much of the negative publicity was
actually factual and originated from defendant himself, he
cannot now successfully contend that the charges against him
should be dropped because of the publicity surrounding his
trial.
As mentioned earlier, publicity problems can sometimes
be offset by proper voir dire. Defendant ' s attorney
requested that voir dire of the jury panel be closed.
However, such a request is seldom granted. It must first be
determined that the publicity is so great and so inflammatory
that a presumption exists that the jury panel is prejudiced
against defendant. United States ex rel. Doggett v. Yeager
(3rd Cir. 1973), 472 F.2d 229, 234-235; Coleman v. Kemp (11th
Cir. 1985), 778 F.2d 1487, 1541-1542. The Ninth Circuit has
adopted the United States Supreme Court's three-step test for
making this determination:
1) that public proceedings would result in irreputable
damage to defendant's right to a fair trial;
2) that no alternative to closure would adequately
protect this right; and
3) that closure would effectively protect it.
United States v. Brooklier (9th Cir. 1982), 685 F.2d 1162,
1167, citing Gannett Co. Inc. v. DePasquale (1979), 443 U.S.
368, 99 S.Ct. 2898, 61 L.Ed.2d 608. There is no proof that
closure of voir dire would have protected defendant from the
adverse publicity generated, at least somewhat, by his own
actions.
Whether to close voir dire or not is a question left
largely to the discretion of the trial judge. State v.
Sunday (1980), 187 Mont 292, 609 P.2d 1188; United States v.
McDonald (9th Cir. 1978), 576 F.2d 1350, 1354-1355, cert.
denied, 439 U.S. 830 and 439 U.S. 927 (1978). We cannot say
the trial judge abused his discretion by refusing to close
voir dire in this case. Closed voir dire has been found
unnecessary where the publicity is factually accurate and
contains the essential facts of the crimes which would
ultimately be presented to the jury anyway. State v.
Frederick (Wash.App. 1978), 579 P.2d 390, 393, cert. denied,
440 U.S. 985 (1979). The trial judge's plan to question
individual veniremen in chambers should the need arise would
have been adequate had it been properly implemented. This is
especially true since the veniremen were cautioned that if
they had strong opinions about the case, they should notify
the judge.
However, the manner in which voir dire was conducted
was, to be generous, improper. The trial judge's repeated
admonitions to defense counsel that a jury would be selected
that day and inferences that defense counsel was an obstacle
to that end, are inexcusable. The voir dire process,
especially in cases given a great amount of publicity, is
essential to ensure that defendant is adjudged by fair and
impartial jurors. It is this objective for which the court
must strive, not expeditious selection of a jury.
Another major problem is defense counsel's examination
of the veniremen's preconceived notions of defendant's guilt,
which was repeatedly met with sustained objections. Defense
counsel was eventually denied permission to ask a juror if he
were defendant, would he want someone with his frame of mind
sitting on the jury. The state, citing Hill v. Turley (Mont.
1985), 710 P.2d 50, 42 St.Rep. 1783, contends that questions
posed by defense counsel regarding how a potential juror
would vote at that moment were incorrect.
It is improper to pose hypothetical questions which
have the effect of requiring a pledge or commitment
from the juror that he would decide a certain way
upon particular instruction as that would have the
effect of prejudging the case.
However, defense counsel was not eliciting a commitment.
He was merely attempting to ascertain the intensity of the
potential juror's opinion. In fact, the state asked, without
objection, a very similar question.
Q. (By Mr. Racicot) Okay. If you--this is kind
of an unfair question--if you were involved in a
matter of very large degree and importance to you,
would you be comfortable having a juror in your
present state of mind?
A. I suppose.
Q. You'd just as soon not be involved at all, I
know, but assume for a moment that you were. Do
you feel that you'd be comfortable with a person of
your state of mind that could render a fair and
impartial choice and decision?
A. Yes.
Tr. Vol. I, p. 75, In. 25; p. 76, In. 1-11. Inquiries such
as this are permissible methods of ascertaining the potential
juror's state of mind.
Defense counsel was repeatedly admonished to limit
inquiries to whether the potential juror could set aside his
impressions of the case and reach a verdict based solely on
the evidence presented at trial. Such a question cannot be
asked and answered in a vacuum. Defense counsel must be
allowed to fully examine the extent of the veniremen's
pretrial convictions concerning defendant's guilt. He must
also be allowed to determine what would be required to
eradicate those convictions. Otherwise, prejudiced jurors
will more than likely be on the jury.
The following situation occurred in defendant's trial,
with the ultimate result being a juror who might have
required defendant to prove his own innocence.
A. (By future juror) I had an opinion about the
kidnapping.
Q. (By Mr. White) And based upon that opinion, do
you believe that Mr. Nichols is guilty or not
guilty of that charge--of just the kidnapping?
A. I don't know. I have an opinion about the
kidnapping, but I don't know if he's guilty or not
guilty.
Q. What is your opinion about the kidnapping? Is
it favorable or not favorable to Mr. Nichols' side?
A. It's not favorable.
Q. And is it--is it an opinion you've held for a
very long period of time?
A. Yes, when I first heard about it, from the time
I first heard about it.
Q. All the way back to--that would have been about
a year ago actually? Has that opinion changed
since you first heard about it?
A. No.
Q. Would - - - some evidence - - Nichols -
it take by Mr. to
remove that o~inionat this time?
A. Yes.
-
Q. If you were sitting in Mr. Nichols' place now
and there was a juror sitting where you are with
your opinion, would you want him to try your case
with your opinion as it is now?
A. Probably not.
MR. WHITE: Your Honor, I would challenge [this
juror] for cause.
THE COURT: Do you resist this challenge?
MR. RACICOT: We certainly do, Your Honor. We'd
ask the Court to inquire.
THE COURT: ... you recall my exchange with you?
A. Yes, I d o .
THE COURT: And you recall when I asked you if you
could sit and listen to the evidence received only
from this courtroom and render a fair and impartial
judgment, and you know what your answer was?
A. Yes.
THE COURT: You bet. Now, is that still your
answer?
A. Yes, it is.
THE COURT: All right. Your challenge for cause is
denied.
Tr. Vol. I, p. 228, In. 5-25; p. 2 2 9 and p. 230, ln. 1-8.
Although voir dire was conducted in an improper manner,
the error was harmless. Given the testimony of defendant at
trial, recounted above, any juror would have had to convict
defendant of the charges brought against him. Defendant ' s
testimony confirmed the existence of every element of each
charge. Therefore the error was not prejudicial. We wish to
emphasize, however, that we do not condone the trial court's
manner of conducting voir dire and we do not wish to see such
procedures before us again.
PREJUDICIAL STATEMENTS BY THE PROSECUTOR
Appellant objects to comments during the prosecution's
opening statement and closing argument concerning the family
of Alan Goldstein and Goldstein's outstanding personal
characteristics. The objections focus on the
inappropriateness of the comments and the fact that no
evidence was submitted in support. The comments were
inappropriate. Again, however, it cannot be established from
the record that those statements resulted in a denial of a
substantial right. State v. Watkins (1971), 156 Mont. 456,
464, 481 P.2d 689, 693. A conviction necessarily followed
from defendant's evidence.
CONSTITUTIONALITY OF THE FELONY-HOMICIDE STATUTE
The following statutes are at issue:
Section 45-5-101. Criminal homicide. (1) A
person commits the offense of criminal homicide if
he purposely, knowingly, or negligently causes the
death of another human being.
Section 45-5-102. Deliberate homicide. (1
Except as provided in 45-5-103 (1), criminal
homicide constitutes deliberate homicide if:
...
(b) it is committed while the offender is engaged
in or is an accomplice in the commission of,
attempting to commit, or flight after committing or
attempting to commit robbery, sexual intercourse
without consent, arson, burglary, kidnapping,
felonious escape, or any other felony which
involves the use or threat of physical force or
violence against any individual.
Section 45-2-103. General requirements of criminal
act and mental state. (1) A person is not guilty
of an offense, other than an offense which involves
absolute liability, unless, with respect to each
element described by the statute defining the
offense, he acts while having one of the mental
states described in subsections (33), (37), and
(58) of 45-2-101 [knowingly, negligently and
purposely.]
Appellant contends S 45-5-102 (1)(b), MCA , is
unconstitutional on its face because it fails to require the
state to prove a specific mental state, contrary to statutory
mandates contained in S $ 45-5-101 and 45-2-103, MCA.
Appellant argues that the statute incorrectly and
unconstitutionally requires proof of the commission of or
attempt to commit a felony in place of proof of a mental
sta.te of purposely or knowingly committing a homicide.
We have addressed this contention before. In State v.
Sunday, supra, we discussed the intricacies of proving intent
under the felony-homicide statute. We held that when a
defendant commits a felony such as burglary, kidnapping or
aggravated assault, he initiates conduct which creates a
dangerous circumstance. Therefore, the intent to commit the
felony supplies the intent for all the consequences,
including homicide, arising therefrom. Sunday, 187 Mont. at
307-308, 609 P.2d at 1197, citing Rassiouni, Substantive
Criminal Law (1978), at 250, 251.
We expounded on this conclusion in State v. Weinberger
(Mont. 1983), 671 P.2d 567, 569, 40 St.Rep. 1539, 1542.
"It is not the purpose of the felony-murder rule to
foist authorship of a homicide upon a felon; the
purpose is merely to clothe the felon's act of
killing with malice." 2 Wharton's Criminal Law
(14th ed.) 221, S 149. Under Montana codes, we
would substitute "knowledge or purpose" for the
word "malice." Section 45-2-103, MCA.
Certain acts regarded as peculiarly dangerous create a
reasonable risk of death. Therefore, the felon who initiates
those acts is also responsible for a death arising from those
acts.
Despite appellant's allegations to the contrary, this
application of the theory of supplied intent does not
constitute a violation of defendant's constitutional rights
under Sandstrom v. State of Montana (1979), 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39. In Sandstrom, the Supreme Court
held that jury instructions which eliminate the state's
burden of proving an essential element of the crime, i.e. the
requisite mental state, create an unconstitutional conclusive
presumption against the defendant. Under the felony-homicide
statute, the state has not been relieved of the burden of
proving an element of a crime. Rather, the method of proving
one of the elements has been changed. The state may
substitute proof of the mental state necessary to commit a
homicide with proof of the mental state required to commit
the underlying felony.
The state retains the burden of proving all the elements
of the crime. The statute is constitutional.
INSTRUCTIONS
Appellant objects to numerous instructions given to the
jury :
1. Instruction 21, because it pertains to the
felony-homicide rule, is unconstitutional;
2. Instructions 22, 23, 24, 25 and 26 are pre-emptory
in nature because they instruct the jury as to what it "must"
or "should" do;
3. Instruction 26 invades the province of the jury with
the following statement:
However, if you find beyond a reasonable doubt that
the defendant committed the offense of Kidnapping
and that during the commission of that offense the
death of Alan Lee Goldstein was caused, you must
find the defendant guilty of Deliberate Homicide as
alleged in Count 11. (Emphasis added.);
4. Instruction 39 is an improper statement of the law
of self-defense. The jury should have been told of
defendant's right to self-defense under deliberate homicide -
Count I (purposely or knowingly).
5. Instruction 42 is irrelevant. The record does not
support any intent of a private citizen to make an arrest.
Appellant's objections do not warrant a new trial.
We have already discussed the constitutionality of the
felony-homicide rule. None of the complained of instructions
are pre-emptory in nature. The words "must" and "should" are
used with respect to instructions on the law. The mandatory
words are not to direct particular findings of fact, which
are the province of the jury. Instruction 23 is a good
example :
You are instructed that to sustain the charge of
Deliberate Homicide alleged in Count I, against the
defendant Donald Boone Nichols the State must prove
that he purposely or knowingly caused the death of
Alan Lee Goldstein.
If you find from your consideration of all the
evidence that this proposition has been proved
beyond a reasonable doubt, then you should find the
defendant, Donald Boone Nichols, guilty of
Deliberate Homicide.
If, on the other hand, you find from your
consideration of all the evidence that this
proposition has not been proved beyond a reasonable
doubt, then you should find the defendant, Donald
Boone Nichols, not guilty of Deliberate Homicide.
(Emphasis supplied.)
Instructions 25 and 26, when read together and with the
other instructions on the felony-homicide rule, particularly
Instruction 28, are correct statements of law.
Appellant agreed in the lower court that Instruction 39
was correct with respect to the felony-homicide rule. Since
defendant was acquitted of deliberate homicide - Count I
(purposely or knowingly), any error created by the failure to
give a self-defense instruction with respect to that charge
is harmless.
The instructions as a whole mirror the statutes from
which they were derived. We find no error.
We concur:
A
ief Justice