State v. Patton

NO. 95-535
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

WILLIAM R. PATTON,
Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Wendy Holton; Attorney at Law;
Helena, Montana
Joseph R. Massman; Massman Law Firm;
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Assistant Attorney General,
Helena, Montana
Valerie D. Wilson, Jefferson County
Attorney, Boulder, Montana

Submitted on Briefs: November 14, 1996
Decided: December 17, 1996
Filed:

Cleqdc
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendant, William R. Patton, was charged by information,

filed in the District Court for the Fifth Judicial District in

Jefferson County, with the offense of deliberate homicide, in
violation of 5 45-5-102, MCA. Following a trial by jury, Patton
was convicted of the crime with which he was charged. He appeals

the judgment of the District Court. We affirm the District Court.

The issues on appeal are:

1. Did the State suppress exculpatory evidence and thereby

deny Patton his right to a fair trial?

2. Did the District Court err when it instructed the jury?

FACTUAL BACKGROUND

William R. Patton was charged with the offense of deliberate

homicide, in violation of § 45-5-102, MCA. The information alleged

that on June 12, 1994, in Boulder, Montana, Patton caused the death

of Aubrey "Sonny" Bradley when he stabbed him with a knife. Patton

entered a plea of not guilty.

Prior to the trial, a private investigator by the name of

Albert "Turtle" Johnson was appointed to assist Patton with the

preparation of his defense. During his investigation, he
determined that Bradley was romantically involved with Cheryl

Dupuis. He also learned that, in the past, Dupuis' ex-husband,

William Hagman, had assaulted both her and her boyfriend. On that

basis, he concluded that Hagman should be a suspect in Bradley's

homicide.

2
 Johnson contacted Agent Ward McKay, an investigator with the
Montana Department of Justice Criminal Investigation Bureau, and

informed him of his suspicions and conclusions.

Agent McKay was familiar with the case and agreed to
investigate the possibility that Hagman committed the homicide. He

traveled to Butte and interviewed Hagman. Hagman admitted that he
knew Bradley and that, on June 12, 1994, he went to Boulder to

watch Dupuis. However, he stated that he did not visit the O-Z
Motel, and he denied any involvement with Bradley's homicide. The
forty-two minute interview was transcribed, and a copy was issued

to Patton.
Agent McKay subsequently continued his investigation of

Hagman, and interviewed Dupuis and other witnesses. None of the
witnesses at the motel had seen Hagman at or near the time and

place of the homicide. He also obtained Hagman's fingerprints, and

sent them to the state crime lab. The lab reported that Hagman's
fingerprints were not on any of the items recovered from the crime

scene.

Ultimately, Agent McKay concluded that he had no evidence,

witnesses, or information, other than Johnson's theory, to connect

Hagman to Bradley's homicide. The State, therefore, dropped its

investigation of Hagman, and continued to pursue a conviction of

Patton.
Patton received a copy of Agent McKay's report and

unsuccessfully attempted to interview Hagman. One week prior to

trial, Patton obtained a court order for Hagman's deposition and

3
hired a private process server to serve him with the order.

HOWeVer, the attempt to serve Hagman was unsuccessful, and despite

the assistance of the sheriff's office, he could not be located

before the trial.

Trial by jury commenced on May 8, 1995. The State presented

evidence and testimony to show that, on the morning of June 12,

1994, Bradley drove from Butte to Boulder. At some point, he

stopped and picked up Patton, who was hitchhiking north on

Interstate 15. Upon their arrival in Boulder, they consumed food

and drinks at Phil and Tim's Restaurant, and then went across the

street to their room at the O-Z Motel.
The next morning, Cheryl Dupuis went to the front desk of the

O-Z Motel, and asked for Bradley. Debbie Kipp, who worked at the

motel, escorted her to his room. They checked the room, and

discovered Bradley's body on the floor between two beds.

The police determined that Bradley had been stabbed eight

times with a knife. His pockets were turned inside out, and his

empty wallet was found in the trash-can. On top of the mattress

was an empty beer can which contained Patton's fingerprints, and

underneath one of the beds was a bloody t-shirt. The police also

found Patton's razor and hair samples in the bathroom.

Later that afternoon, a deputy sheriff spotted Patton near the

highway three miles south of Boulder. When Patton saw the officer,

he grabbed his black bag, and fled up a ravine. He was not

apprehended at that time.

4
 Three days later, on June 15, 1994, a highway patrol officer
found Patton hitchhiking on the interstate south of Boulder. When
the officer approached him, he turned around, dropped his black

bag, and raised his hands over his head. When questioned, he told
the officer that his name was "Beau Justice." Additionally, his
pants were stained with Bradley's blood.

At the trial, Debbie Kipp and Dan Gosselin, the owner of the

motel, testified that, on the night of June 12, 1994, Patton told

them that he and Bradley had an argument, and that he had been

locked out of their room. Gosselin further testified that Patton

wore a buck-knife sheath on his belt.
Michael Mix worked at the front desk of the motel on June 12,

1994. He testified that Patton told him that he and Bradley had an

argument about the television, but that their disagreement had been

resolved. He also testified that Patton wore a buck-knife sheath

on his belt, and that there was a large red stain on the front of
Patton's shirt.
Patton testified on his own behalf. He claimed that on the

night of June 12, 1994, he fell asleep in the motel room. When he

awoke the next morning, he found Bradley dead on the floor. He

pulled his pants out from under Bradley's body, dressed himself,

packed his things, and left.

At the close of all the evidence, the District Court

instructed the jury. Relevant to this appeal are the following

jury instructions:

5
 INSTRUCTION NO. 3

To convict the defendant of Deliberate Homicide
. . the State must prove the following elements:

1. That the defendant caused the death of Aubrey
Bradley . and

2. That the defendant acted purposely or
knowingly.

If you find from your consideration of the evidence
that all of these elements have been proved beyond a
reasonable doubt, then you should find the defendant
guilty.

If, on the other hand, you find . that any of
these elements has not been proved beyond a reasonable
doubt then you should find the defendant not guilty.

INSTRUCTION NO. 4

A material element of every offense is a voluntary
act, which includes an omission

INSTRUCTION NO. 6

A person acts purposely when it is his conscious
object to engage in conduct of that nature or to cause
such a result.
INSTRUCTION NO. 9

If you are satisfied that the crime charged in the
information has been committed by someone, then you may
take into consideration any testimony showing, or tending
to show, concealment by the defendant. This testimony
may be considered by the jury as a circumstance tending
to prove a consciousness of guilt, but is not sufficient
of itself to prove guilt. The weight to be given such
circumstance and significance if any, to be attached to
it, are matters for the jury to determine.
INSTRUCTION NO. 10

If you are satisfied that the crime charged in the
information has been committed by someone, then you may
take into consideration any testimony showing, or tending
to show, flight by the defendant. This testimony may be
considered by the jury as a circumstance tending to prove
a consciousness of guilt, but is not sufficient of itself

6
 to prove guilt. The weight to be given such circumstance
and significance if any, to be attached to it, are
matters for the jury to determine.
The jury returned a guilty verdict, and the District Court

ordered a presentence investigation. At the sentencing hearing,

the District Court sentenced Patton to a term of seventy-five years

at the state prison, and determined that he will not be eligible

for parole until he has served twenty-five years of his sentence.

ISSUE 1

Did the State suppress exculpatory evidence and, thereby, deny

Patton his right to a fair trial?

On appeal, Patton contends that the State suppressed

exculpatory evidence by the manner in which it conducted its

investigation of William Hagman. He maintains that it was readily

apparent that Hagman was a viable suspect in the homicide, and that

the defense needed Hagman for its investigation. Therefore, he

asserts that the State suppressed exculpatory evidence when it
failed to "preserve" Hagman as a witness, and that, as a result, he

was denied his right to due process and a fair trial.

The State points out that Patton did not raise his due process

claim in the District Court before, during, or after the trial. He

did not ask the District Court for any relief, nor did he make any

objection with regard to his inability to secure Hagman's presence

for a deposition or testimony at trial.
We have consistently held that "[t]his Court will not consider

issues raised for the first time on appeal when the appellant had
the opportunity to make an objection at the trial level." Statev. Weeks

7
(1995), 270 Mont. 63, 86, 891 P.2d 477, 491. The contemporaneous
objection rule at 5 46-20-104, MCA, and the limitations set forth

at 5 46-20-701, MCA, preclude appellate consideration of alleged

errors unless a timely objection was made at trial, or unless

certain statutory criteria are met. Patton does not assert that he

made a timely objection, nor does he contend that this claim falls

within one of the narrow statutory exceptions found at 5 46-20-701,

MCA.
Therefore, review of Patton's due process claim by this Court

can only be conducted pursuant to the common law plain error

doctrine. We recently held that before the plain error doctrine

will be invoked a defendant must show that the failure to review an

alleged error would either: (1) result in a manifest miscarriage

of justice; (2) leave unsettled the question of the fundamental

fairness of the trial or proceedings; or (31 compromise the

integrity of the judicial process. Statev. Finley (1996), 915 P.2d 208,

215, 53 St. Rep. 310, 315.
We begin our analysis of Patton's due process claim with the

following well-established principles of constitutional and

criminal law:
[I]t is well settled that while a criminal defendant has
a constitutional right to obtain exculpatory evidence and
that the denial of such right is a violation of due
process, this right is only a personal right to obtain
exculpatory evidence. It does not require that police
officers take initiative or even assist in procuring
evidence on behalf of a defendant. State v. Swanson (1986) ,
222 Mont. 357, 360-362, 722 P.2d 1155, 1157-1158; Inre
Mm-tin (1962), 58 Cal. 2d 509, 24 Cal. Rptr. 833, 835, 374
P.2d 801, 803.
 Police officers do not have an affirmative
!I
. .

duty to search out favorable evidence for the defendant
. . n

[State, CityofBozemanv.]Heth[(1988), 230 Mont. 268, 2721, 750
P.2d [103,1 at 105. We reaffirmed this rule in Statev. Clark
(1988), 234 Mont. 222, 225, 762 P.2d 853, 855-856,
holding that there is no affirmative duty on police
officers to obtain exculpatory evidence, but they must
avoid interference with the efforts on the part of the
accused to obtain such evidence.

Statev.Sadowski(1991), 247 Mont. 63, 79, 805 P.2d 537, 547.

Furthermore, we have previously held that:

[Olnly a deliberate or intentional suppression of
exculpatory evidence is a per se violation of due
process. To amount to a violation of due process,
negligently suppressed evidence must be material and of
substantial use, vital to the defense, and exculpatory.

Sadowski , 247 Mont. at 79, 805 P.2d at 547 (citing State, CityofBozemnnv.

H e t h (1988), 230 Mont. 268, 272, 750 P.2d 103, 105).

Patton's private investigator concluded that Hagman should be

a suspect in the Bradley homicide. He contacted Agent McKay of the

Montana Department of Justice Criminal Investigation Bureau and

informed him of his suspicions. Although the State does not have

an affirmative duty to obtain and gather exculpatory evidence for

a defendant, Agent McKay agreed to investigate Hagman. His

investigation involved the following actions: he conducted a

forty-two minute interview of Hagman; the interview was

transcribed, and a copy was issued to Patton; he interviewed Cheryl
Dupuis and other witnesses; he submitted Hagman's fingerprints to

9
the crime lab; and he issued a copy of his report, which documented
his conclusions, to Patton.

Based on his investigation, Agent McKay concluded that he had

no physical or testimonial evidence to connect Hagman to the crime,

and therefore, the State discontinued its investigation.

Unfortunately, Patton was unable to secure Hagman's presence

at either a deposition or the trial. While the State is strictly

prohibited from suppressing exculpatory evidence and from

obstructing a defendant's efforts to put together his defense, it

is not obligated to assist with his defense. However, Patton does
not assert that the State took any affirmative steps to insure that

Hagman would be unavailable for trial; nor does he claim that the

State impeded his efforts to investigate and serve Hagman.

We conclude, therefore, that the State did not suppress

exculpatory evidence, and that it did not violate Patton's due

process rights to a fair trial. The State did not engage in any

conduct that hindered Patton's defense. In fact, the State

fulfilled its obligations when it responded to Patton's requests

and conducted its investigation of Hagman.

Based on the principles of law established in Sadowski, and the

application of the facts of this case to those principles, we hold

that even if Patton had properly raised his due process claim in

the District Court, it would not have affected the outcome of his
trial. Therefore, his claim does not warrant review pursuant to

the common law plain error doctrine, and accordingly, it must be

denied.

10
 ISSUE 2
Did the District Court err when it instructed the jury?

The standard of review of jury instructions in criminal cases

is whether the instructions, as a whole, fully and fairly instruct

the jury on the law applicable to the case. Srnre v. Brandon (1994) ,

264 Mont. 231, 237, 870 P.2d 734, 737 (citing Statev.Lundblade (1981),

191 Mont. 526, 529-30, 625 P.2d 545, 548). Additionally, we

recognize that a district court has broad discretion when it

instructs the jury. Statev.Ross (1995), 269 Mont. 347, 358, 889 P.2d

161, 167.

On appeal, Patton contends that the District Court erred when
it instructed the jury. Specifically, he makes the following three

claims: (1) the District Court erred when it failed to include the
element of voluntariness in its jury instruction which set forth

the statutory elements of deliberate homicide (Instruction No. 3);

(2) the District Court erred when it instructed the jury on the

evidence of his post-crime concealment and flight (Instruction

Nos. 9 and 10); and (3) the District Court erred when it defined

the term "purposely" (Instruction No. 6).
THE ELEMENT OF VOLUNTARINESS

When the District Court defined the elements of deliberate

homicide, it gave the following jury instructions:

INSTRUCTION NO. 3

To convict the defendant of Deliberate Homicide
. . the State must prove the following elements:

11
 1. That the defendant caused the death of Aubrey
Bradley and

2. That the defendant acted purposely or
knowingly.

If you find from your consideration of the evidence
that all of these elements have been proved beyond a
reasonable doubt, then you should find the defendant
guilty.

If, on the other hand, you find . . that any of
these elements has not been proved beyond a reasonable
doubt then you should find the defendant not guilty.

INSTRUCTION NO. 4
A material element of every offense is a voluntary
act, which includes an omission . .

Although the District Court instructed the jury that a

material element of every offense is a voluntary act (Instruction

No. 4), Patton contends that the District Court erred when it

failed to include the element of voluntariness in its jury
instruction which set forth the statutory elements of deliberate

homicide (Instruction No. 3). He claims that the separate

instructions could have misled the jury with regard to the extent

of the State's burden of proof, and that the element of

voluntariness should have been listed with the elements of the

statutory offense in a single jury instruction.

In support of his contention, Patton cites several federal

court decisions. However, this Court has previously addressed this

issue, and we conclude that our prior cases are controlling.

In Sfafe v. Zampich (1983), 205 Mont. 231, 667 P.2d 955, the

defendant submitted a proposed jury instruction which incorporated

the term "voluntarily" alongside the mental state elements of

12
"purposely" and "knowingly." The district court struck the term

"voluntarily" from the proposed instruction, and instead, gave a

separate instruction which stated that a "material element of every

offense is a voluntary act."

On appeal, we concluded that the district court's other

instructions adequately established the State's burden to prove

each element of the crime beyond a reasonable doubt, and that the

instructions, when read together, properly instructed the jury. On
that basis, we held that the district court did not err when it

failed to include the element of voluntariness in its jury
instruction which set forth the statutory elements of the charged

offense.

In Stalev.B~ws (1993), 261 Mont. 17, 861 P.2.d 860, the defendant

asserted that the district court erred when it gave separate jury

instructions on (1) the element of voluntariness, and (2) the

statutory elements of the crime. He claimed that the separate

instructions confused the jury, and that they might not have fully

considered the voluntary act requirement.

On appeal, we held that the separate instructions correctly

reflected the law, and adequately established the State's burden of

proof. Furthermore, we concluded that the separate instruction on

voluntariness did not prejudice the defendant.

In this case, the separate jury instruction on voluntariness

did not prejudice Patton. He did not claim to have acted

involuntarily during the commission of the offense, and the element

13
of voluntariness was never an issue in the case. Rather, his
entire defense was that a third party committed the crime.

Therefore, based on our prior holdings, we conclude that the

separate instructions (Instruction Nos. 3 and 4), when read

together, fully and fairly instructed the jury on the law

applicable to the case. Accordingly, we hold that the District

Court did not err when it failed to include the element of

voluntariness in its jury instruction which set forth the statutory

elements of deliberate homicide.

PATTON'S CONCEALMENT AND FLIGHT

At trial, the State presented evidence and testimony which

established that, on June 12, 1994, Patton left the scene of the

crime. Later in the afternoon, a deputy sheriff spotted Patton

near the highway three miles south of Boulder. When Patton saw the

officer, he grabbed his black bag and fled up a ravine. Three days

later, on June 15, 1994, a highway patrol officer apprehended

Patton while he was hitchhiking on the interstate south of Boulder.

When the officer questioned him, he concealed his true identity,

and stated that his name was "Beau Justice."

Based on this evidence and testimony, the District Court gave

the following jury instructions:

INSTRUCTION NO. 9

If you are satisfied that the crime charged in the
information has been committed by someone, then you may
take into consideration any testimony showing, or tending
to show, concealment by the defendant. This testimony
may be considered by the jury as a circumstance tending
to prove a consciousness of guilt, but is not sufficient
of itself to prove guilt. The weight to be given such

14
 circumstance and significance if any, to be attached to
it, are matters for the jury to determine.
INSTRUCTION NO. 10

If you are satisfied that the crime charged in the
information has been committed by someone, then you may
take into consideration any testimony showing, or tending
to show, flight by the defendant. This testimony may be
considered by the jury as a circumstance tending to prove
a consciousness of guilt, but is not sufficient of itself
to prove guilt. The weight to be given such circumstance
and significance if any, to be attached to it, are
matters for the jury to determine.

On appeal, Patton contends that the District Court erred when
it instructed the jury on the evidence of his post-crime flight and

concealment.
Patton does not claim that these instructions (Nos. 9 and 10)

vary impermissibly from the Montana Criminal Jury Instructions from

which they were derived; nor does he assert that the State's

evidence of his flight and concealment is insufficient to support

the use of these instructions. In fact, he concedes that the State

is allowed to introduce evidence of his flight and concealment, and

that the jury is allowed to consider that evidence.

However, he contends that when the District Court gave

Instruction Nos. 9 and 10 it improperly commented on the evidence,

invaded the province of the jury, and gave unfair weight to the

evidence in favor of the State.
The language of Instruction Nos. 9 and 10 was taken verbatim

from the Montana Criminal Jury Instructions (1990), published by

the State Bar of Montana, and based upon the authority of Statev.

Walker (1966) , 148 Mont. 216, 419 P.2d 300. Furthermore, we have

15
repeatedly upheld the use of jury instructions regarding a
defendant's flight. See, e.g., Byers, 261 Mont. at 45, 861 P.2d at 877;

statev. Campbell (1990), 241 Mont. 323, 330, 707 P.2d 329, 334; Statev.

Charlo (1987), 226 Mont. 213, 219, 735 P.2d 278, 281; Stutev. Shurtliff

(198O)I 187 Mont. 235, 244, 609 P.2d 303, 308; Statev. Gone (1978),

179 Mont. 271, 277, 587 P.2d 1291, 1295.
Although most of the cases cited deal with a defendant's

flight, it is well established that evidence of concealment is

"treated in the same manner as flight." See MCJI l-019 (citing State

v.Shaw (1982), 199 Mont. 248, 648 P.2d 287; Statev.Armst~ong (1980), 189

Mont. 407, 616 P.2d 341; Statev.Adair (Ariz. 1970), 469 P.2d 823).

Additionally, we recognize that "[al jury instruction may be

given when it is relevant to evidence or issues in a case, and when

it is supported either by some evidence or some logical inference

from other evidence presented at trial." Charlo, 226 Mont. at

218-19, 735 P.2d at 281 (citing Statev.Kirkaldie (19781, 179 Mont. 283,

292, 587 P.2d 1298, 1304).

In this case, the District Court did not improperly comment on

the evidence or invade the province of the jury. Instruction
Nos. 9 and 10 were based on and supported by the State's evidence,

and merely reflected the testimony of the State's witnesses.

Patton also asserts that when the District Court instructed
the jury on the evidence of his flight and concealment it gave

unfair weight to the evidence in favor of the State.

16
 HOWeVer, Instruction Nos. 9 and 10 accurately reflect the law
in Montana, that the jury may consider flight by a defendant as a

circumstance that tends to prove consciousness of guilt. Siatev.Pierce

(19821, 199 Mont. 57, 63, 647 P.2d 847, 851.

Additionally, the instructions were conditioned by the phrase,

“mav take into consideration any testimony." (Emphasis added.)

The instructions, therefore, were not mandatory, and did not

impermissibly shift the burden of proof to the defendant. state v.

Goltz (1982), 197 Mont. 361, 371, 642 P.2d 1079, 1085. Instruction

Nos. 9 and 10 merely instructed the jury to determine the weight

and significance, if any, of the evidence of Patton's flight and
concealment; and they plainly instructed that evidence of his

flight and concealment "is not sufficient of itself to prove

guilt."

Lastly, we recognize that Instruction Nos. 9 and 10 are in

accord with our holding in Walker, in which we stated:

The evidence is sufficient to support the giving of the
[flight and concealment] instruction[sl, it was a matter
for the jury to accept or reject [defendant's] reasons
. . . . It was the jury's task then to weigh the evidence
accordingly.

Walker, 148 Mont. at 226, 419 P.2d at 306.

Therefore, we conclude that when the District Court instructed

the jury regarding Patton's post-crime flight and concealment, it

did not give unfair weight to that evidence and did not err.

17
 THE DEFINITION OF "PURPOSELY"
When the District Court defined the term "purposely," it gave

the following jury instruction:

INSTRUCTION NO. 6

A person acts purposely when it is his conscious
object to engage in conduct of that nature or to cause
such a result.

On appeal, Patton contends that the District Court erred when

it defined the term "purposely." He asserts that Instruction No. 6

impermissibly broadened the mensrea element of the crime charged,

and thereby reduced the State's burden of proof as to that element.

He maintains that he could only have acted "purposely," for

purposes of a deliberate homicide conviction, if it was his

conscious object to cause the death of Bradley, and that the jury

was improperly instructed that he could be convicted if the State

proved that he had the purpose to "engage in conduct," even though
it did not prove that he engaged in that conduct for the purpose of

causing another's death.

In State x Roihacher (1995), 272 Mont. 303, 901 P.2d 82, the

district court instructed the jury that in order to convict the

defendant of deliberate homicide it was not necessary for the State

to prove that the defendant intended to cause the death of the

victim, so long as the act which caused the death was done

purposely, and no circumstances of mitigation, excuse, or

justification were present.

18
 After an extensive analysis of the plain language of the
pertinent statutes, we concluded that:

[Wlhile our statutory law does not require proof that
[the defendant] intended the specific result of his act,
it does at least require that he intended a similar kind
of harm. It is not sufficient, as indicated in [the
District Court's jury instruction], that the act which
caused the harm be done purposely without regard to
whether nny harm was intended.

Rothacher , 272 Mont. at 307, 901 P.2d at 85.

In this case, we conclude that, pursuant to Rothacher, the

District Court erred when it instructed the jury that "[al person
acts purposely when it is his conscious object to enqaqe in conduct

of that nature or to cause such a result." (Emphasis added.)

Instruction No. 6 defined "purposelyI' in an either-or-fashion, and

allowed the jury to convict Patton solely on the basis that he

consciously engaged in conduct without regard to whether harm was

intended.

However, our conclusion that Instruction No. 6 was erroneous

is simply the first part of our analysis. Pursuant to S 46-20-701,

MCA, a district court's judgment will not be reversed for error

unless the defendant's substantial rights are affected.
The potential prejudice from Instruction No. 6 could occur

where a defendant acted "purposely," but did not intend to cause

any harm. However, in this case, as in Rothacher, no facts were

presented from which a credible argument could be made that when

Bradley was stabbed eight times his assailant did not intend to

19
cause any harm. Patton's only asserted defense was that the crime
was committed by another person.

Therefore, we hold that, although the District Court erred
when it instructed the jury on the definition of "purposely"
(Instruction No. 6), the error was harmless and does not require a
reversal of the judgment.

Accordingly, the judgment of the District Court is affirmed.

We concur:

20
Justice W. William Leaphart, specially concurring

I concur in the opinion of the Court. I write separately with

regard to Instruction No. 10 regarding the jury's consideration of

evidence of flight by the defendant. The defendant has argued that

this instruction is an improper comment upon the evidence and

should not be given. He cites a number of federal authorities in

support of his argument.

I agree with the Court that Instruction No. 10 is a proper

statement of the law under existing precedent. State 77. Hurlbert

(19881, 756 P.2d 1110, 232 Mont. 115. Furthermore, the

circumstantial evidence in this case was so overwhelming that a

different instruction on flight would not have made a difference in

the outcome.

However, I do think that the Court should re-examine the

propriety of giving an instruction on flight. I think there is

considerable merit to the views expressed by the Committee drafting

the Ninth Circuit Model Jury Instructions. That Committee

expresses the view that instructions on particular kinds of

evidence should be avoided as much as possible. "Aside from being

unnecessary, instructions on particular inferences are undesirable

in that they tend to inject argument into the judge's charge and

lengthen it unnecessarily." Ninth Circuit Model Jury Instructions

(West 19951, at 49. The Committee recommends against giving

instructions such as those dealing with flight, resistance to

21
arrest, missing witness, failure to produce evidence etc.

As the Seventh Circuit stated in United States v. Jackson

(1978), 572 F.2d 636, 639-40:

[T]he probative value of flight as circumstantial
evidence of guilt depends on the degree of confidence
with which four inferences can be drawn: (1) from the
defendant's behavior to flight; (2) from flight to
consciousness of guilt; (3) from consciousness of guilt
to consciousness of guilt concerning the crime charged;
and (4) from consciousness of guilt concerning the crime
charged to actual guilt of the crime charged. The court
also noted that

[t]he use of evidence of flight has been
criticized on the grounds that the second and
fourth inferences are not supported by common
experience and it is widely acknowledged that
evidence of flight or related conduct is "only
marginally probative as to the ultimate issue
of guilt or innocence."

Id. [citations omitted]. Indeed, the Supreme Court has
expressed its lack of confidence in the probative value
of flight evidence. In Wang Sun v. United States, 371
U.S. 471 483 n. 10, 83 S.Ct. 407, 415, 9 L.Ed.2d 441
(1963), the Court remarked that

we have consistently doubted the probative
value in criminal trials of evidence that the
accused fled the scene of an actual or
supposed crime. In Alberty v. United States,
162 U.S. 499, 511, 16 S.Ct. 864, 40 L.Ed. 1051
this Court said: 11 . . . it is not universally
true that a man, who is conscious that he has
done a wrong, 'will pursue a certain course
not in harmony with the conduct of a man who
is conscious of having done an act which is
innocent, right and proper;' since it is a
matter of common knowledge that men who are
entirely innocent do sometimes fly from the
scene of a crime through fear of being
apprehended as the guilty parties, or from an
unwillingness to appear as witnesses. Nor is
it true as an accepted axiom of criminal law
that 'the wicked flee when no man pursueth,
but the righteous are bold as a lion."'

In light of this doubt as to the probative value of

22
 flight evidence, we are of the opinion that although its
use may be proper in many cases, its admission,
especially followed by a jury instruction, should be
regarded with caution.

Although the State can argue the issue of flight, for the reasons

set forth above, I question whether it is appropriate to have the

court comment upon flight evidence in its charge to the jury.

23