NO. 87-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plainti ff and Respondent,
-VS-
MARK DeMERS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presidina.
COUNSEL OF RECORD:
For Appellant:
Larry D Mansch, Public Defender's Office, Mi.ssoula, MT
For Respondent :
Honorable Mike Greely, Attorney General, Helena, MT
Robert L. Deschamps, 111, Missoula County Attorney
Ed McT,ean, Deputy County Attorney, Missoula, MT
-
Submitted on Briefs: Sept.. 1, 1 9 8 8
Decided: October 13, 1 9 8 8
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mr. DeMers was convicted by jury of deliberate homicide
in the District Court for the Fourth Judicial District,
Missoula County. He was sentenced to a term of fifty years,
plus ten years for use of a dangerous weapon, to be served
consecutively. Mr. DeMers appeals. We affirm.
The issues are:
1. Did the District Court err in refusing to allow
juror testimony at the hearing for a new trial?
2. Did the District Court err in denying defendant's
motion for a new trial based on the prosecutor's failure to
disclose exculpatory information?
3. Did the District Court err in instructing the jury
on justifiable use of force?
4. Did the District Court err in denyinq defendant's
motion for mistrial?
On the evening of July 26, 1986, Mark DeMers parked his
semi-truck in the parking lot of the OK Corral, which is a
bar in Missoula, Montana. After several hours of drinking,
Mr. DeMers left the har. He found a small car parked direct-
ly in front of his truck, making it impossible for him to
leave. Mr. DeMers returned to the bar and requested an
announcement be made over the loudspeaker system to have the
car moved. The testimony of the defendant established that
several of these announcements were made before the owner of
the car, Ruby Peterson, emerged from the bar with her boy-
friend at around closing hour.
As Ms. Peterson and her boyfriend John Polinskv amp-
proached the vehicle, they were confronted by Mr. DeMers.
Words were exchanged between the two men, although the testi-
mony conflicts as to what was said. Followinq the exchange,
Mr. DeMers shot Mr. Polinsky with a .44 magnum pistol, then
got into his truck and drove away.
The jury found the defendant guilty of deliberate homi-
cide. The defense moved for a new trial and requested that
jurors be allowed to testify at that hearing. It also moved
for a new trial based on newly discovered evidence. The
defendant appeals the denial of these motions, the denial of
a motion for a mistrial, and the propriety of jury instruc-
tions given by the District Court.
I
Did the District Court err in refusing to allow juror
testimony at the hearing for a new trial?
In his motion for a new trial, the defendant requested
that jurors be allowed to testify based on five juror affida-
vits received by defense counsel. Four of the affidavits
stated that those jurors were confused with the statutory
definition of "knowingly." One of the affidavits stated that
the juror became fatigued during deliberations and felt
pressured to find Mr. DeMers guilty of deliberate homicide in
order to expedite jury deliberations. In his brief, defense
counsel stated that juror testimony was also requested to
show that one juror influenced the rest with his expertise,
that some of the jurors conducted an improper experiment, and
that some jurors wanted to request that the trial judge
reread certain testimony, but were precluded from making this
request. No affidavits were filed which establish facts
relating to those three issues.
The statutory law governing the admissibili-ty of juror
testimony to impeach the verdict is found in Rule 606(b),
M.R.Evid.:
Upon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to any
matter or statement occurring during the course o f
the jury's deliberations or to the effect of any-
thing upon his or any other juror's mind or emo-
tions as influencing him to assent or dissent from
the verdict or indictment or concerning his mental
processes in connection therewith. Nor may his
affidavit or evidence of any statement by him
concerning a matter about which he would be pre-
cluded from testifying be received for these
purposes.
However, as an exception to this subdivision,
a juror may testify and. an affidavit or evidence of
any kind he received as to any matter or statement.
concerning only the following questions, whether
occurring during the course of the jury's delibera-
tions or not: (1) whether extraneous prejudicial
information was improperly brought to the jury's
attention; or (2) whether any outside influence was
brought to bear upon any juror; or (3) whether any
juror has been induced to assent to any general or
special verdict, or finding on any question submit-
ted to them by the court, by a resort to the deter-
mination of chance.
F e will address each subject requested by the defense for
J
juror testimony in relation to this statute.
Juror confusion over the statutory definition of delib-
erate homicide does not qualify as an exception to Rule
606(b). State v. Sigler (1984), 210 Mont. 248, 257, 688 P.2d
749, 753. The substance of this testimony is precisely what
Rule 606(b) seeks to prohibit.
Likewise, even if some jurors became fatigued, that is
not an outside influence or extraneous prejudicial informa-
tion. A juror's physical, mental, and emotional condition is
inherent in the verdict, and the effect of such a condition
on a juror's vote is within the prohibition of Rule 606 (b) .
State v. Maxwell (1982), 198 Mont. 498, 507, 647 P.2d 348,
353. A juror's request for repeated testimony is also part
of the mental processes inherent in the verdict and is disal-
lowed as a statement made during jury deliberations.
The defendant asserts in his brief that one of the
jurors, when interviewed, informed counsel that he possessed
expertise regarding the study of bones. This expertise,
along with an experiment performed by some of the jurors, was
allegedly used to speculate on the possible angles of bullet
deflection by the ribs and to rebut the testimony of defen-
dant's expert at trial. Jurors are expected to bring to the
courtroom their own knowledge and experience to aid in the
resolution of a case. A juror's possession of knowledge
about the human body is neither extraneous information,
outside influence, nor agreement to verdict by chance. For
the juror to have considered the credibility of defendant's
expert witness within the parameters of his own experience
and background is insufficient to qualify as an exception to
.
Rule 606 (b)
The defendant contends that an experiment performed by
the jury in conjunction with the expert juror's comments was
improper and constitutes jury misconduct. Assuming that the
experiment took place, we find nothing objectionable in its
performance given the factual discrepancies of this case.
There was considerable dispute at trial as to the position of
and the distance between the two men when Mr. DeMers shot Mr.
Polinsky. Based on his examination of the wound and chemical
residues on the shirts of the victim and the defendant, the
defendant's expert witness testified that the physical evi-
dence was not consistent with Mr. DeMers walking up to the
victim as he opened the car door and pulling the trigger. We
conclude there is no prejudice to the defendant when one
juror donned Mr. DeMers' shirt to see how the garment might
fit depending on the position of Mr. DeMers' body. We find
no extraneous prejudicial information or outside influence in
performing this kind of experiment.
Since we find no juror misconduct on any of the above
issues, we need not discuss the final issue of prejudice to
the defendant. The District Court was correct in concluding
that juror testimony was not allowed during the hearing for a
new trial under Rule 606 (b).
I1
Did the District Court err in denying defendant's motion
for a new trial based on the prosecutor's failure to disclose
exculpatory information?
The defendant moved for a new trial based on the follow-
ing grounds:
1. The failure of the prosecutor to disclose the
fact that the victim was an experienced combat
veteran;
2. The failure of the prosecutor to disclose
that the victim's fingerprints were on file
with federal agencies.
The District Court found that this evidence constituted
newly discovered evidence, and applied the test set forth in
State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, to
determine whether a new trial was warranted. In Greeno, this
Court set out certain requirements which must be met to merit
a new trial:
1. The evidence must have come to the knowledge
of the applicant since the trial;
2. That it is not through want of diligence that
it was not discovered earlier;
3. That it is so material that it would probably
produce a different result upon another trial.
Greeno, 342 P.2d at 1055.
The District Court found that the last two requirements
of that test were not met and therefore a new trial was not
warranted. Since the granting or denial of a new trial rests
within the sound discretion of the district court, we will
not overturn that determination unless an abuse of discretion
is shown.
The record discloses that the fact of John Polinsky's
military service was readily available to defense counsel.
An obituary which appeared in the local newspaper shortly
after the incident not only mentioned the fact of Polinsky's
military background, but also listed survivors from whom the
information could have been sought. At the hearing for a new
trial, Mr. Polinsky's girlfriend stated that defense counsel
had never asked her about whether she had knowledge of Mr.
Polinsky's military service. We note that Mr. DeMers' mili-
tary training was brought out in both pretrial proceedings
and during trial. Given the similar age of Mr. Polinsky at
the time of his death, we agree with the District Court that
it was neither unusual nor surprising that he served in the
military during the Vietnam conflict.
In light of these factors, we find that Mr. Polinsky's
service in the U.S. Army and the availability of his finger-
prints therefrom could have been discovered earlier in the
proceedings, prior to the State's case-in-chief. We hold
that the District Court correctly concluded that defense
counsel did not exercise proper diligence in obtaining this
information now claimed to warrant a new trial.
To satisfy the third part of the test as set forth in
Greeno, the defendant must show that the newly discovered
evidence is so material that it would probably produce a
different result upon another trial. The defendant contends
that evidence of Mr. Polinsky's military experience is cru-
cial to show his familiarity with violence. The defendant
also wishes to connect a beer bottle found in the parking lot
near the crime scene with John Polinsky by use of his
fingerprints. Mr. DeMers contends that this evidence is
material as it supports his theory of self defense and his
claim that Mr. Polinsky was the aggressor.
Defense counsel requested a fingerprint test be per-
formed after it was discovered that Mr. Polinsky's prints
were on file with a federal agency. Those results were
negative. Because no connection between the beer bottle and
the victim was confirmed, we conclude that this evidence
would probably not have resulted in a different outcome at
another trial.
We also agree with the District Court that the defendant
has failed to demonstrate that evidence of Mr. Polinsky's
military experience would produce a different result upon
another trial. The most the evidence would have done was to
rebut the testimony of Mr. Polinsky's girlfriend that he was
quiet and nonaggressive. The defendant makes no connection
between his theory that the gun somehow discharged acciden-
tally, and Mr. Polinsky's familiarity with violence. Since
the defendant has not met the requirements set forth in
Greeno, we affirm the findings and conclusions of the Dis-
trict Court and find no abuse of discretion in denying the
defendant's motion for a new trial.
I11
Did the District Court err in instructing the jury on
justifiable use of force?
The district court has a duty to instruct the jury on
every issue or theory having support in the evidence. In
determining whether to give an instruction, the inquiry of
the court must only be whether any evidence exists in the
record to warrant an instruction. State v. Sotelo (1984),
209 Mont. 86, 89, 679 P.2d 779, 781.
Neither party requested an instruction on justifiable
use of force or self defense, but the District Court decided
to give one. The defendant claims that the instruction on
self defense lacked evidentiary support and only served to
confuse the jury. He contends that juror confusion resulted
from the conflicting theories of negligent homicide and self
defense. At no time did Mr. DeMers claim to have shot Mr.
Polinsky intentionally. Lack of intent supports his negli-
gent homicide theory but conflicts with a theory of self
defense. Mr. DeMers therefore claims that the instruction
was improper and misleading. We do not agree. Based on our
analysis of the record we find ample evidence to support the
giving of the instruction, even if it conflicted with defen-
dant's theory of the case.
In order to find justifiable use of force the jury must
find that the defendant (1) was not the aggressor, (2) rea-
sonably believed that he was in imminent danger of unlawful
harm, and (3) that he used reasonable force necessary to
defend himself. The testimony of Mr. DeMers establishes
these elements sufficiently to warrant the giving of a self
defense instruction.
Mr. DeMers testified that he first noticed the victim
when Mr. Polinsky yelled at him from across the parking lot.
The defendant testified that he got in his truck, observed
the crowd of people and concluded that it was "not too good
of a situation. " When he got out of the truck, he grabbed
his pistol and held it behind his leg. He testified that "I
didn't want nobody to see it. I was just trying to be cau-
tious. I was a little bit afraid at this point. And I
didn't know what was going to happen."
According to the defendant, it appeared that Mr.
Polinsky was holding something in both of his hands as he
walked up to Mr. DeMers and told him "I'm going to kick your
ass good." We find that the defendant's testimony describing
Mr. Pol-Fnsky's statements and his actions could reasonably
lead a jury to conclude that Mr. DeMers was not the
aggressor.
The defendant then quoted several more threatenina
statements made by the victim, at which time Mr. DeMers
testified he raised his gun and pulled back the hammer out of
fear. Mr. DeMers testified that hoth men, believing that the
confrontation was over, turned away from each other. At that
point he described what he thought he heard the victim say:
"And I couldn't make out what he said, except for the last
- - I don't hear very good - - except for the last two words;
and the last two words was 'kill you. ' " These final words,
coupled with Mr. Polinsky's previous threats and his brazen
attitude in the face of a cocked pistol, could suggest to a
jury that Mr. DeMers reasonably believed he was in danger of
unlawful harm.
We conclude that the defendant's testimony quoted above
is sufficient for the jury to have found that Mr. DeMers
could have been acting in self defense when he shot Mr.
Polinsky. We hold that the District Court did not err in
giving an instruction on justifiable use of force.
IV
Did the District Court err in denying the defendant's
motion for a mistrial?
Prior to trial, the defendant filed a motion in limine
requesting in part that the State be precluded from offering
evidence of any character trait of the defendant other than
credibility. The motion was granted with the understanding
that the State might use such evidence for cross-examination
or rebuttal, after obtaining the court's permission outside
the presence of the jury.
During cross-examination of Mr. DeMers, the State in-
quired into his history of alcohol treatment and asked about
his temperament when he drank. Defense counsel moved for a
mistrial claiming that the State had violated the motion in
limine. The District Court denied the motion finding that
defense counsel had already opened the door to such character
evidence and that Mr. DeMers' temperament had become an issue
in the case. The court further held that evidence of the
defendant's military records of alcoholism and violence nine
years prior to this incident was too remote. At the request
of defense counsel, the court instructed the jury to disre-
gard all questions and answers on this subject prior to the
objection.
From our examination of the record, we conclude that
defense counsel first raised the issue of Mr. DeMers' charac-
ter, his use of alcohol, and his state of mind on the night
in question. It was not a violation of the motion in limine
for the State to respond to that evidence on
cross-examination.
Furthermore, the District Court is in the better posi-
tion to judge the prejudicial effect of otherwise relevant
evidence on the jury. The District Court found the evidence
to be nonprejudicial in two respects. First, it was charac-
ter evidence of a general nature, and second, defense counsel.
did not object to the questions until after they had been
asked and answered. The District Court's findings, in addi-
tion to the giving of a cautionary instruction, support its
conclusion that no prejudicial effect was created by the
State's inquiry. We find no abuse of discretion in the
denial of defendant's motion for a mistrial.
Affirmed.
Justices