No. 91-023 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

MICHAEL KNIGHT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox, Attorney at Law, Billings, Montana. 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

Deanne L. Sandholm, Assistant Attorney General, 

Helena, Montana; Dennis Paxinos, County Attorney, 

Billings, Montana. 

Submitted on briefs: October 24, 1991 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

A jury in the District Court for the Thirteenth Judicial 

District, Yellowstone County, found Michael Knight guilty of 

deliberate homicide and attempted deliberate homicide. Knight 

appeals. We affirm. 

The issue is whether the jury was properly instructed on the 

Lesser included offense of mitigated deliberate homicide. 

This case arose from a drug deal gone sour. In January 1990, 

Knight and his longtime friend Donald Brey agreed to travel from 

Billings, Montana, to California, with the purpose of buying 

cocaine for resale in Montana. Brey had the necessary "connections" in California. They purchased the cocaine and financed the 

trip with $7,000 Knight had received from an insurance settlement. 

Knight and Brey agreed that Brey would sell the approximately four 

ounces of cocaine they purchased and that they would divide the 

profits from this venture. 

Following the trip to California, Knight began having trouble 

reaching Brey. On the occasions when he did reach Brey, Brey told 

him that he could not yet pay him his share of the money because 

the cocaine was not selling as quickly as expected. 

On February 11, 1990, Knight learned that Brey had moved from 

Billings to Laurel, Montana, about fifteen miles away. Knight was 

upset that Brey had not told him he was moving. A mutual acquaintance directed Knight to the house Brey was renting in Laurel, but 
Brey was not home. At about 10:OO p.m., Knight returned alone to 

Brey's house in Laurel. Brey and his cousin Cody Puckett were in 

the garage working on a car. Knight kicked open a side door to the 

garage and confronted Brey about the money. When Brey put him off, 

Knight drew a handgun. 

Knight's trial testimony about what happened next differed 

from that of Puckett, who also testified at trial. Knight 

testified that Brey kicked his hand, causing the gun to go off in 

Brey ' s face. Puckett testified that Knight fired the gun in Brey ' s 

face. Brey died immediately. Knight further testified that he 

believed Puckett had a gun. He shot Puckett several times before 

fleeing the garage. 

Knight surrendered to authorities the next day. He was 

charged with the deliberate homicide of Brey and the attempted 

deliberate homicide of Puckett, who survived wounds to his leg, 

chest, and shoulder. The District Court sentenced Knight to 100 

years in the Montana State Prison on each count plus ten additional 

years on each count for the use of a dangerous weapon. 

The sole issue on appeal is whether the jury was properly 

instructed on mitigated deliberate homicide as a lesser included 

offense to deliberate homicide. Settlement of instructions began 

prior to Knight's presentation of evidence in his defense. At that 

time, the State offered its proposed instruction 5A, which defined 
both deliberate homicide and mitigated deliberate homicide. The 

following exchange occurred: 

THE COURT: Any objections to 5A? 

[KNIGHT'S ATTORNEY]: If Your Honor please, if the Court 

concludes a mitigated deliberate is a lesser included, I 

at least do have an objection as to 5A the way it is now, 

if you'd like to hear that now. 

THE COURT: What is that? 

[KNIGHT'S ATTORNEY] : Well, Your Honor, we would take the 

position that with respect to 45-5-103 (2), that on -- and 

I realize that's the statute as it now exists in the 

state of Montana. We're taking the position that it is 

unconstitutional switching of the burden of proof to the 

defendant. That he's put in a position to -- 

THE COURT: Off the record. 

The court refused both parties' instructions on lesser included 

offenses, stating that it would "pass" on instructions on that 

subject "until we find out what the evidence really is.'' 

After all of the evidence was presented, the court and counsel 

met again to settle the remaining jury instructions. The court 

proposed its own instructions on deliberate homicide and mitigated 

deliberate homicide. When asked if there were any objections to 

the instructions proposed by the court, Knight's attorney replied, 

As far as I'm concerned, I put any objections I have on 

the record yesterday, most notably the one -- I believe 

it was State's 15 or 15A -- concerning the burden of 

proof on mitigated deliberate, and I have no problems 

with the Court's Instructions as redone. [Emphasis 

added. ] 
The court's proposed instructions were given to the jury. 

The State emphasizes that Knight's counsel specifically stated 

that he no longer had any objection to the instructions proposed by 

the court. Section 46-20-701(2), MCA, provides that a claim of 

error which was not objected to at trial may be noticed on appeal 

only if the claimed error affected jurisdictional or constitutional 

rights, was prejudicial as to the defendant's guilt or punishment, 

and meets one of three additional requirements. Knight has not 

alleged that his claim of error meets any of those three requirements 

Knight maintains that he clearly placed on the record his 

objection to the statutory scheme on mitigated deliberate homicide, 

and that this objection is retained. We conclude that, after the 

above exchanges during the settlement of jury instructions, any 

surviving objection is limited to the constitutionality of 5 45-5- 

103(2), MCA. Therefore, the issue on appeal is limited. We will 

examine Knight's arguments that under Montana's statutes regarding 

the degrees of homicide, it is impossible for a jury to be able to 

consider mitigating evidence, and that the defense of mitigated 

deliberate homicide as it is defined in Montana's statute unconstitutionally shifts the burden of proof to the criminal defendant. 

Section 45-5-102, MCA, provides that 

(1) A person commits the offense of deliberate homicide 

if: 
(a) he purposely or knowingly causes the death of another 

human being[.] 

Section 45-5-103, MCA, provides that 

(1) A person commits the offense of mitigated deliberate 

homicide when he purposely or knowingly causes the death 

of another human being but does so under the influence of 

extreme mental or emotional stress for which there is 

reasonable explanation or excuse. The reasonableness of 

such explanation or excuse shall be determined from the 

viewpoint of a reasonable person in the actor's situation. 

(2) It is an affirmative defense that the defendant acted 

under the influence of extreme mental or emotional stress 

for which there was reasonable explanation or excuse, the 

reasonableness of which shall be determined from the 

viewpoint of a reasonable person in the actor's situation. This defense constitutes a mitigating circumstance 

reducing deliberate homicide to mitigated deliberate 

homicide and must be proved by the defendant by a 

preponderance of the evidence. 

Knight points out that the customary method of instructing 

juries regarding consideration of lesser included offenses is to 

have the jury first consider the charged offense. If they do not 

find the defendant guilty beyond a reasonable doubt of the charged 

offense, then and only then are they to proceed to consideration of 

the lesser included offense. In this case, the elements of the 

charged offense, deliberate homicide, are 1) purposefully or 

knowingly, and 2) causing the death of another human being. The 

lesser included offense of mitigated deliberate homicide also has 

those two elements, plus a third element: 3) defendant acted under 

the influence of extreme mental or emotional distress for which 

there is reasonable explanation or excuse. 
Knight is correct that this situation requires carefully 

drafted jury instructions. The jury must be informed that, if the 

defendant meets the burden of proving by a preponderance of the 

evidence that he acted under the influence of extreme mental or 

emotional distress for which there is reasonable explanation or 

excuse, they may find the defendant guilty of mitigated deliberate 

homicide even though all the elements of deliberate homicide are 

present. We conclude, however, that nothing in the statutes 

restricts a jury from reaching consideration of mitigated deliberate homicide. 

Under Montana's statutes, mitigated deliberate homicide is a 

lesser included offense of deliberate homicide only if the 

defendant presents evidence that he acted under extreme mental or 

emotional stress for which there is a reasonable explanation or 

excuse. State v. Olivieri (1990), 244 Mont. 357, 360, 797 P.2d 

937, 939. A statute requiring a defendant to prove by a preponderance of the evidence the presence of mitigating factors in support 

of an affirmative defense does not unconstitutionally shift the 

burden of proof to the defendant. Patterson v. New York (1977), 

432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281. The State 

is not required to prove the nonexistence of every fact 

which it is willing to recognize as an exculpatory or 

mitigating circumstance affecting the degree of culpability or the severity of the punishment. [Citations 

omitted. ] The due process clause does not put the states 

to a choice between abandoning affirmative defenses "or 

undertaking to disprove their existence in order to 
convict of a crime which otherwise is within its constitutional powers to sanction. . . 11 

State v. Sorenson (1980), 190 Mont. 155, 161-62, 619 P.2d 1185, 

1189, citing Patterson. 

We hold that the above statutes do not prevent a jury's 

consideration of mitigating evidence and that 5 45-5-103(2), MCA, 

does not unconstitutionally shift the burden of proof to a criminal 

defendant. 

Affirmed. 

,f 

el AT- Chief Justice R.- 

We concur: 

aLqd/ ices 
December 3, 1991 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

GARY E. WILCOX 

Attorney at Law 

316 N. 33rd Street 

Billings, MT 59101 

Hon. MARC RACICOT, Attorney General 

, Asst. Atty. Gen. 

Justice Building 

215 N. Sanders 

Helena, MT 59620 

Dennis Paxinos 

Yellowstone County Attorney 

P.O. Box 35025 

Billings, MT 59107 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA