### No. 81-456 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1982

STATEOF MONTANA, Plaintiffand Respondent,

VS

# . RORY RAYMOND JOHNS, DefendantandAppellant.

Appeal from: DistrictCourtof the FourthJudicialDistrict, Inand for theCountyofMissoula HonorableJohnHenson,Judgepresiding. Counselof Record: For Appellant: Anthony F. 

### Keast,Missoula, Montana ForRespondent: Hon. Mike Greely,Attorney General, Helena,Montana Robert L. Deschamps 111,CountyAttorney, Missoula,

Montana

Filed: Submittedonbriefs: September 21, 1982 Decided: Povember 9,1982Mr. 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 guiltyof deliberatehomicide 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 MyrstaJohns, the sister, and SaraJohns, 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 thatLarryhad 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 strikeforceof the local police. Defendant, Larry, Myrsta and SaraJohns allhave 

### a historyof drug abuse and psychological problems. Defendant admits 

### to having been addicted todrugs sincehe 

### was elevenortwelve years of age. Larry and Myrsta have had a similar historywith drugs. On the Saturday before the shooting defendant and Myrsta, (the sister),visited the residence of theirbrother and sisterin-law in Missoula. The defendant told his sister-in-law, Marlynn Johns, that something had to be done because he couldn't livewith Larry anymore. Marlynn Johns testified thatdefendant toldherhe 

### wasgoing to killLarryand stated, "AR, Larry AR. I



### am going to getyou 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 onlyby defendant. He testified thatLarry, himself and three others had been working at odd jobs in Lewiston, Idaho. On December 2, 1980, the group decided toleaveLewiston 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 testi£ ied Larry stated he was going 

### to kill him when they returned to Missoula

# . Defendant claims although the 

### tworeturned toMissoula indifferent 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 testifiedhe took the alcohol and drugsbecause he was in a very exicted stateaf

### terLarry'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 thatLarry and he firstentered 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 runbutLarryblocked hisescape. Aftera 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 athim. Defendant claimsLarry stated, "This 

### time I

### amblowing you away." Defendant ran to the living 

### room and shot Larrywho 

### was still standing inthe bedroom. Defendant testified that Myrsta then sheathed Larry's knife and returned the ,357 pistol 

### to its holster inthe 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 riflehe fled 

### to the mother's bedroom. Defendant followed 

### to the doorway of the living 

### room and shothim. 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 timeof the shooting and had been undergoing treatment forher drug problem atWarm Springs at the timeof trial. After the shooting, Myrsta called the 9-1-1 emergency number foran ambulance. Thiscall

### was recorded and depicts anunsavory

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 Ziegler

## , 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 rifleathim. Ziegler then ran to a neighbor's home 

### to warn the ambulance drivernot to stop at the Johns' residence until the house was secured. Theambulance did not stop at the house, but parked about one and one-half blocks furtherdown 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 deliberatehomicide. 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 guiltyof deliberatehomicide. Defendant appealshisconviction. The issues raised on appeal areasfollows: 1. Whether the District Court erred in admitting the 9-1-1 tape intoevidence? 2. Whether theDistrict Court erred inallowing the prosecution to make comments concerning the trajectory of the fatal bulletsduring closing statements? 3. Whether the District Court erred in allowing the testimony of the mother and the sister when it was revealed they suffered frommental, emotional and drug-related illnesses. Defendant argues the admission of the9-1-1 tape was inerror inthatthe tapewas inflammatory and that 

### its admissionwas 

### 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 theissues, 

### 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), 179Mont. 106, 586 P.2d 691; State v. Bain (1978), 176 Mont. 23, 575 P.2d 919. The foundation foradmissionof evidence is a showingby the Stateto establish 

### its substantial necessity 

### or instructive value. State

v. Pendergrass, supra; State v. Newman (1973) 162 Mont. 450, 513P.2d 258. Inthepresent 

### case the trial court denied defendant's motion 

### to exclude the tape stating, "Ibelieve that their [Myrsta and SaraJohns] credibilityconcerning the events thatoccurred af

### ter the shootinghas, ineffect

## ,been used toquestiontheircredibilityas 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 SaraJohns 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, "donotmove!" as she

### was calling foran ambulance. Atthe trial the State argued that these actions 

### were not consistent with defendant's claim of self-defense. For thatreason 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 defendanthad 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 highlyprejudicial to the defendant. The Statehad 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 tothe statement during closing arguments. It iswell 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), 181Mont. 500, 521, 594 P.2d 297, 309; Hayes v. J.M.S. Const. (1978), 176Mont. 513, 579 P.2d 1225. Judgment is a£firmed. 

## fWe concur: