No. 14503 

IN THE SUPHEME COW OF THE STATE OF PKNCZWI 

1979 

THE ST- OF MXCWA, 

Plaintiff and Respondent, 

MICHAEL SaYIT FREEMAN, 

Defendant and Appellant. 

Appsal frm: District Court of the Thirteenth Judicial District, 

Honorable RDbert H. FJilson, Judge presiding. 

Counsel of Record: 

For Appellant: 

John L. Adams argued, Billings, rJbntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Mntana 

Richard Larson, Assistant Attorney General, argued, Helena, 

Mntana 

Harold F.Hanser, County Attorney, Billings, Wntana 

SMtted: June 5, 1979 

Decided. SEF 1 k 
Mr. Justice John C. Sheehy delivered the opinion of the Court. 

This is an appeal by defendant, Michael Scott Freeman, 

from a judgment of conviction of mitigated deliberate 

homicide entered in the District Court, Thirteenth Judicial 

District, Yellowstone County. Defendant was sentenced to 

ten years inprisonment, with three years suspended. 

Early in the morning of September 11, 1977, Kirk Nelson 

and two companions drove in an automobile to the home of 

Michael Scott Freeman. Nelson had a "bone to pick" with 

Freeman in that earlier that evening Nelson had been arguing 

with a man named Larry Foster who imputed to Freeman statements 

that Freeman had made to Foster concerning Nelson. 

Nelson arrived at Freeman's home at approximately 2:00 

a.m. He walked up to the house alone and knocked on the door. 

Freeman awakened, answered the door, and Nelson entered the 

house. Shortly thereafter, the two men who had been waiting 

in Nelson's car also entered the house. Freeman testified 

at trial that Nelson threatened him repeatedly, but the two 

companions testified that no threats were made in their 

presence in the house. 

At Nelson's request, the two companions left in Nelson's 

car. They returned a short time later and found the house 

empty and Freeman's car gone. 

Freeman testified that Nelson ordered him to get dressed 

and accompany him to Raymond Best's house for a meeting with 

Foster. Freeman claims that Nelson repeatedly threatened 

to pistol-whip Freeman with the handgun he was carrying. 

However, at no time did Nelson take the gun out of his jacket. 
Freeman drove his car to Best's house with Nelson 

riding in the front passenger seat. He parked the car 

directly in front of the house and Nelson got out and 

started to walk toward the gate. Freeman got out of his 

car slowly, which enabled him to grab a gun he kept hidden 

under the passenger seat. As Freeman stepped out, he aimed 

the gun over the hood of the car and shot Nelson in the hip. 

Freeman fired three more shots in rapid succession as Nelson 

moved away. Nelson did not fire his weapon. 

At 2:40 a.m., Freeman walked into the Billings Police 

Station and told the authorities that he had just shot Nelson. 

He explained what had happened and was taken into custody. 

The police searched for Nelson but did not find him. At 

approximately 6:30 a.m. that morning, David Ramirez discovered 

Nelson's body on the front porch of the Ramirez house, which 

is located in the same neighborhood as the Best house. A 

loaded .357 caliber pistol was found on the body, and 

several .357 caliber shells. Also, a set of brass knuckles, 

a razor blade, paint scraper, and a small quantity of marijuana 

were found in Nelson's pockets. 

The subsequent autopsy established that Nelson bled to 

death from the bullet wound in his left hip. 

On September 12, 1977, Freeman was charged with the 

crime of deliberate homicide. A trial date of November 17, 

1977 was set. However, on November 14, 1977, the Yellowstone 

County Attorney filed an amended information which included 

further charges against Freeman of conspiracy to commit 

homicide and aggravated burglary of Nelson's home. Larry 

Foster was also charged with these crimes in the amended 

information. 

Freeman gave notice of his intent to rely on selfdefense on November 16, 1977. Freeman and Foster were arraigned 

on November 21, 1977. Both men entered pleas of not guilty. 

-3- 
On December 5, 1977, Freeman himself filed on his 

own behalf a "demand for speeatrial or motion to dismiss 

for lack of evidence" and a further "motion to withdraw 

court-appointed counsel." 

A trial date of April 4, 1978, was set for Freeman 

and Foster, who were to be tried jointly. Prior to trial 

on February 15, 1978, the District Court heard arguments 

on Freeman's motions and determined (1) a truth serum test 

Freeman had requested would be permitted, but the results 

would be inadmissible as evidence; (2) a special investigator 

for the defense would be permitted; and (3) a motion for 

severance of trials would be continued at Freeman's counsel's 

request. 

On March 14, 1978, Freeman moved for acquittal due 

to the lack of speedy trial. 

On April 4, 1978, at the final pretrial conference, 

the District Court denied defendanes motions for acquittal 

for lack of speedy trial and granted his motion for severance 

of trials. Trial of the charges against Freeman began 

immediately thereafter. 

The jury found Freeman guilty of mitigated deliberate 

homicide on April 11, 1978. The conspiracy charge had 

previously been dismissed by the court at the close of the 

prosecutor's case. On April 21, 1978, Freeman was sentenced 

to ten years in prison, with three years suspended and credit 

for time served. 

Larry Foster ultimately entered a plea of guilty to 

the charge of aggravated burglary of Nelson's home. The 

remaining charges against him were dismissed on the County 

Attorney's motion. 

Freeman timely appealed the judgment of conviction against 

him and the matter is now before us for decision. 

-4- 
Freeman's appeal gives us these issues to consider: 

(1) Was Freeman denied a speedy trial? 

(2) Was the jury inadequately instructed on the 

defense of self-defense? 

(3) Is there a statutory conflict between the defense 

of self-defense and the crime of mitigated deliberate homicide? 

(4) Did the prosecution's presentation of evidence 

concerning the alleged conspiracy so cloud the jury's mind 

that Freeman was denied a fair and impartial trial? 

A speedy trial is a federal and state constitutional 

right. U.S.Const. Amend. VI; 1972 Mont. Const., Art. 11, 

524. When a speedy trial inquiry is triggered, we examine 

the issue under the balancing test suggested in Barker v. 

Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. 

The factors in Barker'kave no talismanic qualities; 

courts must still engage in a difficult and sensitive balancing 

process" to determine whether a speedy trial has been denied. 

407 U.S. at 533. 

We have followed the Barker test in State v. Tiedemann 

(1978), Mont. , 584 P.2d 1284, 35 St.Rep. 1705; and 

State v. Collins (1978), Mont . , 582 P.2d 1179, 

35 St.Rep. 993. We held that the balancing test was required 

after a delay of twelve months in State v. Steward (19751, 

168 Mont. 385, 543 P.2d 178; ten months in State ex rel. 

Sanford v. District Ct. Thirteenth J. D. (1976) , 170 Mont. 

196, 551 P.2d 1005; and seven months in Fitzpatrick v. Crist 

(1974), 165 Mont. 382, 528 P.2d 1322. In Fitzpatrick, we 

held that a seven-month delay was long enough to shift to 

the State the burden of explaining the reason for the delay 

and showing the absence of prejudice. 

If the date of Freeman's arrest is used as a starting 

point, the pretrial delay totals 207 days. If the date the 

- 5- 
amended information was filed, the time elapsed to the time 

of trial totals 142 days. 

The time from Freeman's arrest until trial on the charges 

consumed approximately seven months. The State contends 

that the delay should be computed only from the time the 

amended information was filed. However, such computation 

of time would be insufficient. Freeman was arrested and placed 

in jail on September 11, 1977, and remained there until trial, 

seven months later. He was accused of a crime on the day 

he was arrested and his right to a speedy trial accrued as of 

that date. Therefore, the total delay in Freeman's case 

approximates the delay found in Fitzpatrick, supra, and 

so the balancing test of Barker must be considered here. 

Once the burden has shifted to the State to explain the 

reason for the delay, the question becomes, to whom is the 

delay to be attributed? For the State, the question is 

whether the prosecution was pursued with reasonable diligence. 

State v. Carden (1977), Mont . , 566 P.2d 780, 34 

St.Rep. 420. Typically, the courts look for "dead time" in 

which nothing is done by the prosecution in defendant's 

case. On the other side of the coin, it must be determined 

what percentage of the delay is chargeable to the defendant 

and this amount of time must accordingly be deducted from 

the total delay. 

The lapse of time from September 11, 1977 to November 

14, 1977, when the amended information was filed is explained 

by the State in this way: Freeman's confession did not 

reveal the involvement of Larry Foster in the alleged crime. 

It was not until a subsequent investigation by the police 

revealed that Nelson's house had been burglarized the same 

night the shooting had occurred and that Larry Foster was a 

likely suspect, that the authorities considered the possibility 

of a conspiracy between Foster and Freeman to commit deliberate 

-6- 
homicide. The State had a viable case against Freeman 

when the original charges were filed. It was not a lack 

of evidence or inexcusable neglect that delayed the trial. 

Rather, it was the possibility of a considerably more complicated 

crime that prompted the State to investigate further and 

ultimately to file the amended information. Therefore, 

because the State pursued the prosecution with reasonable 

diligence, this lapse of time cannot be charged against the 

State. 

After the amended information was filed on November 

14, 1977, there were several motions presented by defendant, 

including a motion to withdraw court-appointed counsel that 

Freeman had earlier filed on December 5, 1977. These motions 

took up the time of the court and of the prosecution until 

the time of trial. The motions included a motion of intent 

to rely on self-defense, a motion for additional time to 

give notice valid by witnesses, a motion for severance, a 

motion to suppress the evidence, a motion for disclosure of 

investigative files, a motion for declaration of possible 

penalty, a motion for continuance and several others. True, 

some of these motions were filed by codefendant, Larry Foster, 

but they involved the same cause and required the court's 

consideration to rule on such time-consuming motions. 

Therefore, because the State pursued the prosecution 

with reasonable diligence and because a large part of the 

delay was due to the filing and consideration of numerous 

defense motions, prejudice to Freeman caused by the state 

cannot be presumed. 

It is true that Freeman effectively asserted his right 

to a speedy trial on March 14, 1978, by filing a motion 

for acquittal for denial of a speedy trial. There is no 

dispute on this point. 

- 7- 
With respect to the fourth Barker factor, whether the 

delay prejudiced Freeman's case, it must be admitted that 

Freeman was incarcerated from the time of his arrest until 

the time of trial. Undoubtedly he experienced anxiety and 

concern as evidencdby his motions on his own behalf relating 

to his counsel and for a speedy trial. However, there is no 

showing by Freeman that he lost essential witnesses or that 

his right to a fair trial was impaired. 

"The fourth factor to be considered, the 

prejudice to the defendant, has no support 

in the record. Nothing has been brought 

to our attention that would show the 

delay hampered the defendant in any way 

in presenting his defense. Defendant 

claims the delay caused him concern 

and anxiety, but these are inherent 

in any criminal case. Barker v. -- Viilgo, supra, . . . 

"We find therefore that defendant 

fails to meet the criteria necessary to 

show he had been denied a speedy 

trial by the state. State ex rel. 

Sanford v. District Court, supra; Barker 

v. Wingo, supra; State v. Steward (1975) , 168 Mont. 385, 388, 543 P.2d 178, 181." 

State v. Collins (1978), Mont . I 

582 P.2d 1179, 1187, 35 St.Rep. 993, 1003. 

On balance, it therefore appears the State was diligent 

in pursuing the prosecution of Freeman's case. Most of the 

delay is attributable to him and to his codefendant. No 

prejudice has been shown that would lead us to conclude 

Freeman has been denied due process by a lack of speedy trial. 

With respect to whether the court adequately instructed 

the jury regarding Freeman's defense of self-defense, we have 

examined the instructions given and those offered and refused 

in light of those given, and find that the jury in this case 

was adequately instructed on that point. 

The court gave the following instructions: 

"Given Instruction No. 16: 

"A person is justified in the use of force 

or threat to use force when and to the 

extent that he reasonably believes that such 
conduct is necessary to defend himself 

against the imminent use of unlawful force. 

"However, a person is justified in the 

use of force which is intended or likely 

to cause death or serious bodily injury 

only if he reasonably believes that such 

force is necessary to prevent imminent 

death or serious bodily harm to himself 

or the commission of a forcible felony. 

"Given Instruction No. 17: 

"You are instructed that forcible felony 

means any felony which involves the use 

or threat of physical force or violence 

against any individual, and includes the 

crimes of kidnaping, assault, unlawful 

restraint and intimidation. 

"Given Instruction No. 18: 

"'Force likely to cause death or serious 

bodily harm' includes but is not limited 

to the firing of a firearm in the direction 

of a person, even though no purpose exists 

to kill or inflict serious bodily harm. 

"Given Instruction No. 19: 

"A person is not guilty of an offense 

by reason of conduct which he performs 

under the compulsion of threat or menace 

of the imminent infliction of death or 

serious bodily harm, if he reasonably 

believes that death or serious bodily 

harm will be inflicted upon him if he 

does not perform such conduct. 

"Given Instruction No. 20: 

"'Serious bodily injury' means bodily 

injury which creates a substantial risk 

of death or which causes serious permanent 

disfigurement or protracted loss or impairment 

of the function or process of any bodily 

member or organ. " 

In State v. Collins, supra, 582 P.2d at pp. 1184, 1185, 

this Court considered objections quite similar to those 

raised here as to instructions in a self-defense case. In 

Collins, as here, defendant had been charged with deliberate 

homicide and the jury convicted him of mitigated deliberate 

homicide. Defendant contended that he acted in self-defense 

and that therefore, his actions were justified or exonerated 

by the circumstances surrounding the death of the decedent. 
In Collins, we looked to the law on justification or 

exoneration, and examined the instructions in the light 

of the applicable statutes establishing such defenses. In 

doing likewise here, we find that section 45-3-102, MCA, 

provides : 

"Use ---- of force in defense of person. A person 

is justified in the use offorce or threat to 

use force against another when and to the extent 

that he reasonably believes that such conduct 

is necessary to defend himself or another against 

such other's imminent use of unlawful force. 

However, he is justified in the use of force likely 

I to cause death or serious bodily harm only if 

he reasonably believes that such force is necessary 

to prevent imminent death or serious bodily harm 

to himself or another or to prevent the commission 

of a forcible felony." 

When court instructions nos. 16 through 20, as we have 

set forth above, are examined in light of section 45-3-102, 

MCA, it is apparent that the court fairly and fully instructed 

the jury on the law relating to justification or exoneration 

for criminal conduct. As we said in Collins, 582 P.2d at 

pp. 1184, 1185: 

". . . Using the test applied in State v. 

Porter (1964), 143 Mont. 528, 539, 391 P.2d 

704, the instructions given on justifiable 

force gave the defendant ample opportunity to 

expound to the jury in argument his theory 

with respect to the use of force as selfdefense against an unlawful act." 

We will not set out in this opinion Freeman's offered 

instructions nos. 2, 10, and 18, refused by the court, which 

Freeman now contends were necessary in connection with his 

defense of justification or exoneration. It is enough to 

say that we have examined these instructions, and they would 

not have added substantially anything that was not already 

said by the court in its instructions on the same subject. 

Nothing appears to us, from the instructions given, to 

indicate that Freeman or his counsel, was prevented in 

final argument from presenting fully his contentions on selfdefense, because the instructions given enabled him fully to 
state the law to the jury as set forth in the court's 

instructions: 

"We have often held that it is not error for 

a trial court to refuse to give a requested 

instruction, or by implication a portion thereof, 

if the instruction's legal theory was adequately 

covered by the instructions that were given and 

as long as the rights of the defendant were 

fully protected. . ." State v. Lagge (1964), 

143 Mont. 289, 295, 388 P.2d 792, 795. 

Freeman also maintains that the court improperly 

refused his offered instruction no. 21, which would have 

instructed the jury that if the evidence of the case was 

susceptible to two constructions, one of which was consonant 

with guilt and the other consonant with innocent, it was 

the jury's duty to adopt the interpretation which was consonent with innocent. That instruction is generally given 

where the State relies on circumstantial or indirect evidence 

to prove its case. The instruction has no application where 

the evidence is direct with respect to the crime charged. 

The next issue we consider is Freeman's contention that 

there is a statutory conflict between the definition of 

mitigated deliberate homicide and a defense of justification 

or exoneration. 

Neither the State, nor counsel for Freeman, discussed 

this issue in brief or oral argument, but we presume 

that the conflict is the same as the defendant contended 

existed in State v. Collins, supra. Mitigated deliberate 

homicide is defined in section 45-5-103, MCA, as a homicide 

"which would otherwise be deliberate homicide [but] is 

committed under the influence of extreme mental or emotional 

stress for which there is a reasonable explanation or 

excuse. . ." That definition gave rise to a contention in 

Collins, supra, about which we said: 

"One other contention of this final issue is 

that the verdict of the jury is inconsistent 

with the evidence in that since the defendant 
was convicted of mitigated deliberate homicide, 

the jury must have found defendant was acting 

under extreme mental or emotional stress 

brought about by the apparent intended 

attack upon his person and his property. 

Defendant contends the only possible 

mental or emotional stress for which 

there is a reasonable explanation or 

excuse suggested by the evidence is 

that defendant feared for himself 

in the circumstances described. 

Therefore, defendant argues, if the 

jury found such stress to exist, it 

could only be such stress as would 

permit self-defense. Then defendant 

returns to his former argument that 

since the court did not instruct the 

jury that it should acquit the defendant 

when self-defense was established, the 

verdict is inconsistent with the evidence. 

"What this contention of defendant 

overlooks is that while under the facts 

of this case the jury could have found 

defendant was acting under mental or 

emotional stress brought about by the 

attack by Gardipee, the jury could also 

have found the counter-force used by the 

defendant was so excessive as not to be 

reasonable and justified. Section 94-3-102, 

R.C.M. 1947. The jury could have concluded 

that tk force used in self-defense by defendant, 

the shooting, was not the action of a 

reasonable person under the circumstances. 

In that situation, a verdict of mitigated 

deliberate homicide is justified. It is 

not given to us, however, to look into 

the minds of the jurors to ascertain 

how they arrived at their verdict. When, 

as here, we find the jury was fairly 

instructed, we must leave the weighing 

of the evidence and determination of the 

facts to that jury. It is not within 

our province to set aside the verdict 

here." 35 St.Rep. at 1005, 582 P.2d at 

1187-1188. 

What we said in Collins, supra, adequately disposes 

of the contention that there is a statutory conflict 

between the defense of justification and the crime of 

mitigated deliberate homicide, where the jury finds in 

fact that mitigated deliberate homicide was committed. 

Freeman's final contention is that the presenting 

of evidence concerning the alleged conspiracy between 

Freeman and Larry Foster so clouded the jury's mind that 

Freeman was denied a fair and impartial trial. 
The charge of conspiracy to commit deliberate 

homicide was dismissed by the District Court at the 

close of the State's case. The District Court gave 

the following instruction to the jury: 

"Given Instruction No. 3. 

"You are instructed that the charge of 

conspiracy to commit deliberate homicide 

has by the court been dismissed, and is 

not to be considered by you. Evidence 

has been received in this Court pertaining 

to such alleged criminal conspiracy to commit 

deliberate homicide. You will disregard 

such evidence and any evidence pertaining to 

the charge of deliberate homicide as elsewhere in these instructions defined, and 

will draw no inferences nor make any surmises 

from any evidence offered other than the 

evidence which may pertain to the charge of 

deliberate homicide. You will consider only 

the evidence pertaining to the charge of 

deliberate homicide and the defense of selfdefense, and will render your decision of 

innocence or guilt solely on such evidence." 

"The 'general rule' is that where the trial judge withdraws 

improper testimony from the jury's consideration, such an 

instruction is presumed to cure any error which may have been 

committed by its introduction." Anderson v. State (Alaska, 

1968). 438 P.2d 228, 233 n. 15. The Alaska Supreme Court 

cites a United States Supreme Court decision, Pennsylvania 

CO. v. ~oy (1880), 102 U.S. 451, 459, 26 LoEd- 1411 145. 

Although the high court decision involved a civil suit, the 

reasoning is applicable here: 

". . . The charge from the court that the jury 

should not consider evidence which had been 

improperly admitted, was equivalent to 

striking it out of the case. The exception 

to its admission fell when the error was subsequently corrected by instructions too clear 

and positive to be misunderstood by the jury. 

The presumption should not be indulged that 

the jury were too ignorant to comprehend, or 

were too unmindful of their duty to respect, 

instructions as to matters peculiarly within 

the province of the court to determine. It 

should rather be, so far as this court is 

concerned, that the jury were influenced in 

their verdict only by legal evidence. Any 

other rule would make it necessary in every 

trial, where an error in the admission of proof 
is committed, of which error the court becomes 

aware before the final submission of the case 

to the jury, to suspend the trial, discharge 

the jury, and commence anew. A rule of practice 

leading to such results cannot meet with approval." 

In State v. Gander (1976), 220 Kan. 88, 551 P.2d 797, 

the jury considered two photographs and a line-up sheet that 

had not been admitted at trial. When the mistake was discovered 

the trial judge called the jury into the courtroom and instructed 

it to disregard the exhibits. The Supreme Court of Kansas said: 

"It is basic that an admonition to the jury normally cures any 

prejudice from the improper admission of evidence. (Citing 

cases.) This is not a case in which 'it cannot be said the 

jury was not prejudiced' (citing cases), and we thus hold 

that the instruction cured any error." 

The judgment of conviction is affirmed. 

d Justice 

We Concur: