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, TheHonorable Robert 

### W. Holmstrom,Judgepresiding.

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, 1991Chief 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 deliberatehomicide. 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 $7,000Knight 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 fifteenmiles 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, butBrey 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 thegarageworking on a car. Knight kicked open a sidedoor to the garage and confronted Brey about themoney. 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. Pucketttestified thatKnight 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 theMontana State Prison on each countplus 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 inhis defense. At that time, the State offered its proposed instruction 5A,which definedboth deliberate homicide and mitigated deliberate homicide. The following exchange occurred: THE COURT: Any objections to 5A?

[KNIGHT'SATTORNEY]: If Your Honor please, if the Court concludes amitigated deliberate is a lesser included, 

### I at leastdo have an objection as to 5A theway it isnow, if you'd like to hear that now. THE COURT: What is that?

[KNIGHT'SATTORNEY] : Well,Your Honor,wewould take the position thatwith 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 evidencewaspresented, the court and counsel met again to settle the remaining jury instructions. The court proposed its own instructions

### on deliberate homicide andmitigated deliberate homicide. When asked if there were any objections to the instructionsproposed 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 instructionswere given to the jury. TheStateemphasizesthatKnight's counsel specifically stated that he no longerhad any objection to the instructionsproposed 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 theclaimed error affected jurisdictionalor constitutional rights, was prejudicial as to the defendant's guilt orpunishment, and meets one of three additional requirements. Knight has not alleged that his claim of error meets any of those three requirementsKnight maintains that he clearly placed on the record his objectionto the statutory schemeonmitigated 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 inMontana's statuteunconstitutionally 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)hepurposely or knowingly causes thedeath 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 affirmativedefense that thedefendant acted under the influence of extreme mental or emotional stress for which therewas reasonable explanationorexcuse,the reasonableness of which shall be determined from the viewpoint of a reasonable person in the actor's situation. Thisdefense constitutesamitigating 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 toproceed 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 ofmitigated 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 toprove 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 circumstanceaffecting thedegreeofculpability or the severity of the punishment. [Citations omitted.] The due process clausedoes not put the states to 

### a choice between abandoning affirmative defenses "or undertaking to disprove their existence in order toconvict 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 theburden ofproof to a criminal defendant. Affirmed. 

### ,f 

# elAT- Chief Justice 

# R.-

We concur: 

# aLqd/

icesDecember3, 1991 CERTIFICATEOFSERVICE Ihereby certifythatthe followingorderwas sentby United States mail, prepaid, tothe following named:

GARYE.WILCOX Attorney at Law 316N. 33rd Street Billings,MT59101 Hon. MARC RACICOT, Attorney General



### ,Asst.Atty. Gen. JusticeBuilding 215N. Sanders Helena,MT59620

DennisPaxinos Yellowstone CountyAttorney P.O. Box 35025 Billings,MT 59107

EDSMITH CLERKOFTHE SUPREME COURT STATEOFMONTANA