No. 12698 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - MAURICE LYMAN THOMPSON, Defendant and Appellant.

Appeal from: District Court of the Sixth JudicialDistrict, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: Lee Overfelt argued, Billings, Montana For Respondent : Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas J. Beers, Assistant Attorney General, appeared,

Helena, Montana Richard W. Josephson, r,,.'--'--, Big Timber, Montana -.-- p.; -4-!

L ;.I 

### , Conrad B. Fredricks argued, Big Timber, Montana

Submitted: May 22, 1974 Decided : 

### JUL 

### 1

### 51974 Filed: 

### JUL 

### 15

### 1974

ClerkMr. Justice Frank 

### I. Haswell delivered the Opinion of the Court.

Defendant Maurice Lyman Thompson was convicted of second degree murder in a jury trial in the district court of Sweet Grass County. He appeals from the judgment of conviction and denial of his motion for a new trial. Defendant shot and killed JamesVanderVoort with a revolver inbroad daylight. The shooting occurred on the main street of Big Timber,Montana on September 

### 4,1971,at about 6:00 p.m. VanderVoort was killed alongside defendant's camper pickup which

was parked diagonallynear the entrance to Erv's 

### Bar. Defendant and VanderVoort had been drinking beer in the bar when they got into an argument. According to one witness defendant remarked, "1'11 kill the 

### [s.o.~.]. He will be dead in three minutes." The proprietor of the bar told defendant and VanderVoort if theywere going to fight "to get the hell out" of the bar. They left with defendant in the lead and Vandervoort following. The evidence is conflicting on events thereafter. Inany event, at somepoint defendant got his .357 magnum revolver from the cab of his pickup camper and shotVanderVoort. VanderVoort fell to the ground alongside the left rear wheel of defendant's pickup camper and died on the spot. Defendant was chargedwith first degree murder. The state contended throughout the trial that defendant committed an intentional and premeditated killingwith malice. Defendant claimed he accidentally shot VanderVoort while defending himself. He contended he drewhis revolver in an attempt to scare off a physically superior aggressor; that VanderVoort tried to get the gun away fromhim and a struggle ensued; and that during the course of the struggle,his revolver accidently discharged killingVanderVoort. The principal conflict in the evidencewas whether a struggle over the revolver actually occurred.Eyewitness testimonywas conflicting. The state produced

an FBI firearms expertwho testified that the muzzle of the gunwas probably about 18 inches from VanderVoortwhen the revolver

was fired. He testified that no powder or smoke residues were found

on the sleeves of VanderVoort's shirt. On cross-examination,he admitted that no such residueswould be deposited there ifVander- ~oort's hands were covering the cylinder of the revolverwhen it

was fired. On redirect,he testified that he would expect to find powder and smoke residues from the muzzle on vanderVoortlsshirt sleeve if the sleevewere within three to four inches of the muzzle. Defendant testified that VanderVoort had both hands on the revolver at the time it was discharged during their struggle. The state contended throughout that therewas no struggle. It urged that ifVanderVoort had grabbed the revolverby the barrel, smoke and powder residueswould be present on his sleeve. If VanderVoort had grabbed the revolverby the cylinder, it would have prevented rotation and firing. During final argument to the jury, the following transpired: "[By the county attorney] Now 

### Mr. Thompson testified that the gun was fired accidentallywhile theywere wrestling over itwhile Mr. VanderVoort had ahold of it, substantially like this. Yet the pathologist did 

### not testify as to any powder burns on the hand which was wrapped around the cylinder. He described small cuts in the evidence, small abrasions on the elbow, but no mention in the pathologist's testimony at all about powder bums on the hand. Now apparently from the pathologist's testimony, ifyoubelieved his testimony and it's uncontradicted, and its a scientific fact, if you follow the path of the bullet we must assume at the time the gunwent off it must have been held--I can't do it that way--but it must have been held something like that in relation to 

### Mr. VanderVoort if he was gripping the gun in the manner Mr. Thompson testified. "NOW, the FBI agent testified that if the gunwas held like that there ismuzzle blast fromhere, smoke residues left here as the bullet leaves the gun. Yet therewere no smoke residues found on the shirt by the FBI laboratory. Third, the FBI agent testified it was eighteen inches from the muzzle to the point of entrance. And my arms are fairly long but 

### Ican't quite get it away eighteen incheswhen 

### I amholding it away like this. Lastly, when you get in the jury room, take this gun and

# --- "THECOURT: Theywill not be permitted to take the gun to the jury room. I can't allow them to take the physicalevidence. There is a Montana case that says it's error to take that. You can take all paper exhibits but not the physical evidence. "MR. FREDRICKS: [countyattorney

### ] ~et 

### ' s assume that I amMr. VanderVoort engaged in a mortal struggle over this gun, and 

### Iam grasping it. Would you try to fire that gun,

### Mr. Anderson? [juror]. "MR. OVERFELT: [defendant's attorney] Object to this, this is a demonstration; assuming facts that are not in evidence. It is putting the jury in the position of participating in something that is not supported. We don't know the position the deceasedwas innor exactly where he grabbed that weapon.



### "THE COURT: Youmay use demonstration,but I don't want the jury to participate in any portion of it. You canmake your comments and discussion. 

### "MR. F'REDRICKS: Theywon't be allowed to take that in?

"THE COURT: Iwill hear arguments on that at the end of the case. ''MR. FREDRICKS: Now, let's go to some other aspects of 

### Mr. ~hompson'stestimony. 

### My point is here, ladies and gentlemen of the jury, that the physical evidence, the physical facts in this case,you take this gun and follow Mr. ~hom~son's testimony. The physical facts prove that his testimony is wrong and it didn't happen that way. II

[Bracketedmaterial added. 

### ] During the course of its deliberations, the jury returned to the courtroomand requested (1) a readback of defendant's testimony from the time he left the bar to the time of the shooting,and



### (2) permission to examine the revolver. The examinationwas conducted in the presence of the court, the defendant, and attorneys for both the state and defendant. ~efendant'scounsel objected: 

### "MY objection is based on the fact that this jury is proceeding to conduct an experiment. It is obvious from watching them. They are trying to determine whether or not the trigper canbe pulled when a hand is gripping the cylinder. There is no evidence in the record indicating either way whether or not the deceasedwas grabbing the gun by the cylinder thereby preventing the cylinder from rotating. The evidence only reveals that he was grabbing the barrel on the pistol somewhere. This constitutes an experiment on the part of the jurynot based on facts in evidence before them, that could mislead, confuse and probably judging from the fact that they are asking for a readback on this point, asking for this critical testimony.11 The county attorney responded: "Mr. Overfelt's cross-examinationof the 

### FBI agent,he gripped the gun in such amanner. In addition, theDefendant indicated on either his direct examination or cross-examinationthat this is how the gunwas grabbed, that one hand was over the cylinder.II The jury returned a verdict findingdefendant guilty of second degree murder. ~efendant's motion for a new trial was denied. Defendant seeks review of three issues:

(1) Was the hypothetical question asked the FBI firearms expert concerningpowder and smoke residues from the muzzle of the revolver properly allowed? (2) Was the state's final argument to the jury reversible error?

### (3) Was the examination of the revolver by the jury reversible error? Defendant contends the hypothetical question asked the FBI expert was speculative, without proper foundation,assumed facts not in evidence,and should not have been permitted. The relevant redirect examinationby the state discloses: "Q. One thing I think Iwant clarified. That you get powder residue and burns from the side blast on the end of the muzzle too, is that correct.? A. That is correct. "Q. So that if you were holding the gun like this and your shirt sleeveswere within say three or four inches of the muzzle, youwould be very likely-- 

### "MR. OVERFELT: Your honor, this is objected to as assuming factsnot in evidence in this case, and I object to this line of questioning. "THE COURT:Overruled. "MR. OVERFELT: It is speculative. "MR. JOSEPHSON: 

### I said if. "MR. OVERFELT: That iswhat 

### Imean, it is speculative. There is no evidence in the record to support this particular line of questioning. "THE COURT: All right, 

### Ioverruled the objection and youmay proceed. "Q. If a shirt sleevewas within three to four inches of the muzzle of this gun,would you expect to find powder residue on that shirt sleeve? 

### A. I think you would expect to find some,yes.

"Q. And smoke residue? A. In that close a distance, yes."Q. And referring to your diagram again, [it] is what comes outwhen the bullet leaves the barrel? 

### A. Yes.11

[Bracketedword added.] The revolver and the shirt had been examined by the witness at the 

### FBI laboratory. Both had been admitted in evidence. 

### A photograph of the victim lyingwhere he fell shows both sleeves of his shirt still fastened slightly above his wrists, This photograph had been admitted in evidence. On direct examination the FBI expert testified in detail how smoke and powder residues escape when the revolver is fired and deposits residue onmaterials in close proximity, 

### On crossexaminationhe indicated that if the revolverwere grasped with the hand over the cylinder, the shirtwould have no residuesunless

I1 it was within three to five or perhaps six inches along the side of it." The purpose of the redirect examinationwas to establish that residues escape from the muzzle as well as the cylinder area, so if the shirt sleevewere within a few inches of the muzzle, deposits would be left on the sleeve. The propriety of a hypothetical question is largelywithin the discretion of the trial courtwhose rulingwill not be distxzzbed in the absence of an abuse of discretion. State v. Bentley, 155 Mont. 383, 472 P.2d 

### 864;State v. Noble, 142Mont. 284, 384 P.2d 504. The purpose of a hypothetical question directed to an expert witness is to reduce the speculativenature of the facts to enable the jury to better understand the consequences. Krohmer v. Dahl, 145 Mont. 491,402 P.2d 

### %?7? Here, alternative factual conclusions

were possible under the evidence. VanderVoort either was gripping the revolver by the barrel, the cylinder, or both. Expert opinion evidence on residues under each factual alternative provides clarification and reduces speculation. Thehypothetical questionwas relevant to a fact in issue. Thewitness was qualified as a firearms expert; therewas no objection to foundation in the trial court. It did not assume factsnot in evidence; thewitness testified on cross-examinationconcerningdeposits of residue if the revolverwere grippedwith a hand Cf. over the cylinder.

### /Burns v. Fisher, 132Mont. 26, 313 P.2d 1044. Any hypothetical question is speculative in the sense that it assumes certain facts; the facts assumed here were within the scope of the evidence. Accordingly, the hypothetical questionwas proper and Judge Shanstromdid not abuse his discretion in permitting it. Defendant contends the state's final argument invited the jury to conduct anunauthorized experimentwith the revolver outside the evidence in the case. This claim stands or falls onwhether the jury accepted the invitation and conducted suchunauthorized experiment. This is the subject of defendant's final contention discussed hereinafter. Aside from this, the court sustained the objection of defendant's counsel and ruled the jurywas not to participate in any portion of the demonstration. The entire demonstrationwas dropped at this point. No prejudicial error resulted from the argument or attempted demonstrationby the county attorney under such circumstances

# . People 

### v. Evans, 39 C.2d 242, 246 P.2d 636 and State

### v. Hogan, 100Mont. 434,49 P.2d 446,are distinguishable and do not support defendant's position. Both cases involvebringing factsnot in evidence to the jury's attention in final argument. This is not the situationhere.

~efendant's principal contention is that the jury conducted an improper experimentwith the revolver during its deliberations. Specifically,he contends that during jury examination of the revolver in the presence of the court, the state, the defendant and counsel forboth parties, one juror held the cylinderwhile another attempted to pull the trigger and this performance was repeated by other jurors. Defendant charges jurymisconduct constituting reversible error. Assuming, arguendo, that this occurred,we findnothing objectionable in this procedure under the circumstances of this

case. Defendant testified that VanderVoort grabbed the revolverwithboth hands and maintained his hold throughout the struggle He demonstrated to the jury the manner inwhich VanderVoort gripped the gun. He testified the pistol was not cocked. The FBI.firearms expert, in response to questionsby defendant's counsel, testified about powder and smoke residue if the revolver were held with a hand over the cylinder. The violent struggle over the revolver portrayed by defendant at least implies a firmgrip on the cylinder. Whether the revolver could be fired under such circumstances amounts to no more than testing the credibility of defendant and determining the weight that shouldbe given his testimony. The distinction between prohibited experiment and permitted critical examination of physical evidence is explained in the following quotation from a similar case,Allen v. State, 141Tex. 

# "*** The pistol was examined and operatedby some of the jurors---asstatedby one, itwas

'fanned'. Because of this it is contended that the jury experimentedwith the pistol and brought into the casenew and additional evidence to that heard from the witness box. "The jury had a right to take the pistol into the roomwhere theywere deliberating. The evidence does not disclosewhat, if any, additional factwas discovered by the jury in handling the pistol tothat whichwas shownby the testimony in the trial of the case. Probably it did contradict the evidence of the appellant to the effect that the pistol would hang at a certain place. The juryhad a right to examine it to determine the truthfulness of that statement. 

### It is awell-settled rule that the jurywould have the privilege of examining a dangerous instrument provided they did not use it in any differentmanner than that involved in the testimony and that no new fact was discovered from their experimentwhichwas hurtful to the appellant.II We find this analysis persuasive. 

### It promotes a just result. We adopt its rationale. In accord see: Andrews 

### v. State, 15 Ohio CC 

### NS 241; 33 Ohio 

### CC 564;Hoover v. State, 107 Tex-Cr.600, 298 S.W. 438. A jury isnot required to don "blinders"when deliberating on

a verdict. Juries are permitted to take into the jury room any exhibits deemed proper by the trial court. Section 95-1913(c), 

### R.C.M. 1947. Where, as here, the court permits the jury to examine

### a revolver used in a killing, the jurymay use this physical evidence in conjunctionwith testimony given on thewitness stand in determining the credibility ofwitnesses and theweight to be given their testimony. 

### A critical examination of the firing of the revolverunder the circumstances disclosed by the defendant in his testimony is not only permissible but enlightened. In searching for the truth, a jury is permitted to use common sense unfettered by illogical restraints. State v. Landry, 29 Mont. 218, 74 P. 418,does not support defendant's position here. It is distinguishable onboth the facts and the law. It concerns a jury experiment outside the scope of the court's order and outside the evidence during a view of the premises under a special statutenot involved in the instant case. The following authorities from other jurisdictions are cited by defendant in opposition to the viewwe have expressed here: State v. Burke, 124Wash. 632, 215 P. 31;Forehand v. State, 51 Ark. 553, 11 S.W. 766;Hansing v. Territory, 

### 4Okla. 443,46 P. 509; 95ALR2d 351. These authorities are neither binding nor persuasive in the context of the casebefore us. To the extent they are construed as prohibiting a searching examinationof physical evidence under conditions disclosed by the evidence in the case, they

are relics of abygone agewhen a trial was a sporting contest at the expense of a search for the truth. They are anachronisms in Montana todayunder our modern code of criminal procedure. The judgment of conviction is affirmed.

Justice We Concur: