No. 81-456 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

RORY RAYMOND JOHNS, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable John Henson, Judge presiding. 

Counsel of Record: 

For Appellant: 

Anthony F. Keast, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Filed: 

Submitted on briefs: September 21, 1982 

Decided: Povember 9, 1982 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant-appellant was arrested and charged with deliberate 

homicide after shooting his brother on December 2, 1980. On 

March 10, 1981, defendant was found guilty of deliberate homicide 

by jury verdict in the Fourth Judicial District, County of 

Missoula . Defendant appeals. 

Defendant was arrested and charged with attempted deliberate 

homicide after shooting his brother, Larry Peter Johns, on 

December 2, 1980. Defendant shot Larry at the family residence 

in the presence of Myrsta Johns, the sister, and Sara Johns, the 

mother. Larry died after the attempted charge had been filed. 

Defendant and Larry had a history of constant fighting and 

bickering. The two made threats upon each other's lives over a 

period of years. The Missoula city police had been called to 

break up domestic disputes between defendant, Larry and Myrsta on 

a regular basis. Defendant testified that Larry had attempted to 

kill him in the past although the attempts were unsuccessful. 

Most of the disputes arose out of the need for drugs or money. 

Defendant and Larry owned an ample supply of weaponry which 

was con£ iscated by the police department for a period of time. 

At the time of the shooting, the bedroom of the brothers could 

have armed a strike force of the local police. 

Defendant, Larry, Myrsta and Sara Johns all have a history of 

drug abuse and psychological problems. Defendant admits to 

having been addicted to drugs since he was eleven or twelve years 

of age. Larry and Myrsta have had a similar history with drugs. 

On the Saturday before the shooting defendant and Myrsta, 

(the sister), visited the residence of their brother and sisterin-law in Missoula. The defendant told his sister-in-law, 

Marlynn Johns, that something had to be done because he couldn't 

live with Larry anymore. Marlynn Johns testified that defendant 

told her he was going to kill Larry and stated, "AR, Larry AR. I 

am going to get you this time ." Marlynn did not know what "AR" 
meant but did not get concerned at the time because she was 

accustomed to the usual rambunctions of the two brothers. On 

December 21 1980, defendant shot Larry with an AR-15, semiautomatic rifle. 

The events leading up to the shooting were described only by 

defendant. He testified that Larry, himself and three others had 

been working at odd jobs in Lewiston, Idaho. On December 2, 

1980, the group decided to leave Lewiston and return to Missoula. 

Apparently, Larry did not want to leave Lewiston, but rather, 

wanted to stay and make some more money. This precipitated 

another dispute between the brothers and defendant tes ti£ ied 

Larry stated he was going to kill him when they returned to 

Missoula . Defendant claims although the two returned to Missoula 

in different vehicles, Larry continued to make threats to defendant over a CB radio. When one vehicle ran out of gas on Lolo 

Pass, defendant went into a bar to wait and consumed approximately two six packs of beer and took several drugs including 

Demerol, Nebutol, Parest, Soma, Valium and Traxsene . Defendant 

testified he took the alcohol and drugs because he was in a very 

exicted state af ter Larry's threats. 

Concerning the events after the brother's arrived at their 

home in Missoula, two different stories develop--that of defendant and those of the mother and sister. Defendant testified 

that Larry and he first entered the house carrying some of their 

luggage. Defendant then returned to get the rest of his luggage 

and when he returned to the house Larry confronted him with a 

knife in one hand and a .357 magnum pistol in the other. 

Defendant attempted to run but Larry blocked his escape. After a 

brief scuffle in the kitchen, defendant ran to the bedroom and 

retrieved the AR-15 rifle from the wall. Defendant claims they 

struggled in the bedroom and out into the kitchen. Then Larry 

ran into the mother's bedroom and defendant followed. After 

another struggle, defendant turned and saw Larry pointing the 

.357 pistol at him. Defendant claims Larry stated, "This time I 
am blowing you away." Defendant ran to the living room and shot 

Larry who was still standing in the bedroom. Defendant testified 

that Myrsta then sheathed Larry's knife and returned the ,357 

pistol to its holster in the kitchen. No fingerprints were ever 

taken from the ,357 pistol. 

Myrsta and Sara Johns have a different explanation of what 

transpired when the brothers arrived home. They testified that 

the brothers came in together and Larry stated he was hungry. 

Larry took a doughnut from a breadbox and sat down to eat it in 

the living room. Defendant went into the bedroom and returned 

with the .357 pistol stating, "this is for self-defense." 

Defendant then placed the pistol on a table near the kitchen and 

returned to the bedroom and took the AR-15 rifle from the wall. 

When Larry saw defendant with the rifle he fled to the mother's 

bedroom. Defendant followed to the doorway of the living room 

and shot him. 

Myrsta and Sara Johns admit their recollection of the 

shooting is not competely clear. Sara was in poor physical and 

mental health at the time of the shooting and went into shock 

thereafter. Myrsta admits to having been under the in£ luence of 

drugs at the time of the shooting and had been undergoing treatment for her drug problem at Warm Springs at the time of trial. 

After the shooting, Myrsta called the 9-1-1 emergency number 

for an ambulance. This call was recorded and depicts an unsavory 

scene at the Johns' house. Myrsta is yelling hysterically into 

the phone and defendant can be heard in the background shouting 

profanities and firing the rifle. 

An off -duty ambulance driver , Thomas Z iegler , heard the 

ambulance call on his scanner and drove to the scene to assist. 

When he arrived, Sara was in front of the house screaming for 

help. As Ziegler stepped out of his car he saw defendant step 

into the doorway of the house and point a rifle at him. Ziegler 

then ran to a neighbor's home to warn the ambulance driver not to 

stop at the Johns' residence until the house was secured. The 
ambulance did not stop at the house, but parked about one and 

one-half blocks further down the street. 

When deputy sheriff Larry Jackson arrived, Myrsta was 

shouting from the doorway and Jackson could see defendant in the 

background holding the AR-15 rifle . Jackson cautiously 

approached defendant and asked him to put the gun down. By that 

time a second officer, Scott Graham, had arrived and was 

approaching behind Jackson. Eventually defendant unloaded the 

gun and turned it over to the police officers . Larry was attended to at the scene and later died at St. 

Patrick's Hospital as a result of the gunshot wounds. The 

coroner's report showed Larry received six gunshot wounds. The 

AR-15 rifle was fired approximately fourteen times. Some of the 

bullets were found lodged in the walls and ceilings. After 

Larry's death the information was amended charging defendant with 

deliberate homicide. 

During the trial, the court admitted the 9-1-1 tape into 

evidence and allowed it to be played to the jury on four separate 

occasions. On March 10, 1981, the jury found defendant guilty of 

deliberate homicide. Defendant appeals his conviction. 

The issues raised on appeal are as follows: 

1. Whether the District Court erred in admitting the 9-1-1 

tape into evidence? 

2. Whether the District Court erred in allowing the prosecution to make comments concerning the trajectory of the fatal 

bullets during closing statements? 

3. Whether the District Court erred in allowing the testimony of the mother and the sister when it was revealed they suff ered from mental, emotional and drug-related illnesses. 

Defendant argues the admission of the 9-1-1 tape was in error 

in that the tape was inflammatory and that its admission was prejudicial. Rule 403, M.R.Evid., states, " [ a ] l t h o u g h relevant, 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice, confusion of the 
issues, or misleading the jury, or by considerations of undue 

delay, waste of time, or needless presentation of cumulative 

evidence. " 

Here, the trial court ruled that the tape was admissible 

because its probative value outweighed the danger of unfair prejudice. Under our rules of evidence the trial judge has a latitude of discretion in passing on the admissibility of such 

evidence. State v. Pendergrass (1978), 179 Mont. 106, 586 P.2d 

691; State v. Bain (1978), 176 Mont. 23, 575 P.2d 919. The 

foundation for admission of evidence is a showing by the State to 

establish its substantial necessity or instructive value. State 

v. Pendergrass, supra; State v. Newman (1973) 162 Mont. 450, 

513 P.2d 258. 

In the present case the trial court denied defendant's motion 

to exclude the tape stating, "I believe that their [Myrsta and 

Sara Johns] cred ibility concerning the events that occurred af ter 

the shooting has, in effect , been used to question their credibility as to the actual events of the shooting." Defendant argued 

at the trial that he shot his brother in self-defense. The 

testimony of Mystra and Sara Johns showed that the defendant did 

not act in self-defense, but rather, was the aggressor in the 

confrontation. Defendant's actions af ter the shooting which were 

recorded in the 9-1-1 call were quite violent. Defendant continued to fire the rifle and he can be heard commanding E.lyrsta, 

"do not move!" as she was calling for an ambulance. At the trial 

the State argued that these actions were not consistent with 

defendant's claim of self-defense. For that reason the probative 

value of the tape outweighed the chance of prejudice to the 

defendant. 

Defendant argues Pendergrass, supra, is controlling. 

However, -- Pendergrass is distinguishable from the case at hand. 

In -- Pendergrass -- the trial court admitted a rape victim's call for 

assistance. There the tape was admitted for the purpose of 

showing that a rape had been committed. However, the defendant 
had never disputed that a rape had occurred. Defendant claimed 

he was elsewhere at the time of the crime and thus his defense 

was alibi. Therefore, the admission of the tape had no probative 

value and was highly prejudicial to the defendant. The State had 

overwhelming evidence to prove that a rape had occurred and the 

admission of the tape only induced a feeling of outrage against 

the defendant. Here, as stated above, the tape was admitted to 

give credibility to the sister and mother's testimony and thus 

was admissible. 

Defendant claims the State's comment during closing arguments 

that one particular wound had to have been inflicted while Larry 

was lying on his back constitutes reversible error. Defendant 

argues since there was no expert testimony during trial as to the 

nature of the wound the comment was prejudicial. Defendant did 

not object to the statement during closing arguments. It is well 

settled that objections to closing arguments, made for the first 

time on appeal, come too late. Hawkins v. Crist (1978)r 178 

Mont. 206, 583 P.2d 396. 

Defendant's last claim is that the District Court erred by 

allowing the testimony of the mother and the sister when it was 

revealed they suffered from mental, emotional and drug-related 

illnesses. Defendant argues the trial court should have 

disqualified the witnesses upon its own motion. Defendant did 

not move to disqualify the witnesses at trial. This Court has 

repeatedly held that we will not consider questions of claimed 

error not previously raised or presented to the trial court. 

Northern Plains Resource Council v. Board of Natural Resources 

(1979), 181 Mont. 500, 521, 594 P.2d 297, 309; Hayes v. J.M.S. 

Const. (1978), 176 Mont. 513, 579 P.2d 1225. 

Judgment is a£ f irmed. 

f 
We concur: