No. 13503 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsMYRON LARSON

## , Defendant and Appellant.

Appeal from: DistrictCourt of the Second Judicial District, Honorable James D. Freebourn, Judge presiding. Counsel of Record: For Appellant: Leonard J. Haxby argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Allen B. Chronister argued, Assistant Attorney

General, Helena, Montana John G. Winston, County Attorney, Butte, Montana Nadine Scott argued, Deputy County Attorney,

Butte, Montana

Submitted: September 30, 1977 Decided: 

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## I978 Filed:

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ClerkMr. Justice Daniel J. Shea delivered the Opinion of the Court. Defendant Myron Larson appeals from a conviction entered inthe District Court, SilverBow County, on charges of mitigated deliberatehomicide, inviolation of section 94-5-103, R.C.M. 1947, and aggravated assault, inviolation of section 94-5-202, R.C.M. 1947. On March 13, 1975, inthe District Court, SilverBow County, defendant was charged by Information with two counts of mitigated deliberatehomicide and one count of aggravated assault following a shooting incident ata residence inButte, Montana, which resulted inthe deaths of Curt Phillips and Mike McDermott and the wounding of Mike Phillips. Defendant's firsttrialon these charges was declared a mistrial when thejury was unable toreturn a verdict. Following the second trial, defendant was found guilty of mitigated deliberate homicide forthe killingof Curt Phillips and aggravated assault for thewounding of Mike Phillips. Defendant was found not guilty of mitigated deliberatehomicide inthe death of Mike McDermott. Defendant was sentenced toprison termsof 30 and 15 years, torun concurrently. On February 16, 1975, between the hours of 2:00 and 3:30 a.m., a drinking party was inprogress atthe Butte apartment of Gary Larson, defendant's brother. Approximately 15 to20 people

were there, including Myron and Gary Larson, Curt and Mike Phillips, and Mike McDermott. Defendant and Curt Phillips got into an argument over the opening of a door inthe kitchen. Phillips wanted the door to remain closed and defendant wanted it opened tolet fresh air into the apartment. Defendant testified Phillips swung firstand he responded by striking Phillips with a leather sapp he was carrying. The two men wrestled tothe floor. ~efendant's brotherGary separated the two combatants and told Curt Phillips to leave the apartment. Phillips refused to leave. Gary Larson then went to his bedroom, retrieved a .38 caliber pistol, returned to the kitchen and fired a shot into the ceiling. Gary then placed the gun in the refrigerator and began fighting with Curt Phillips. Phillipsmanaged to get on top of Larson and was beating him with his fists and the plaster cast he had

on his arm, as the two men were on the floor. Defendant, whose face and jaw at the time were wired together as the result of an altercation in which he had been involved some five weeks earlier, attempted to enlist the aid of several persons in an effort to break up the fight. One person tried to pull Phillips off of Gary Larson but abandoned the task when he was struck or kicked by Phillips' brother Mike. As Curt Phillipswas standing over and apparently kicking Gary Larson, defendant acted. He pulled a .357 caliberpistol from his back pocket holster and shot Phillips in the back. Mike Phillips then lunged at defendant and defendant shot him in the arm, knocking him down. Mike McDermott then grabbed defendant, the two men wrestled backwards into a bathroom and the gun discharged,killing McDermott. After the shootings someone called the Butte city police. The officerswho arrived at the scene determined that Curt Phillips and Mike McDermott were dead. Defendant told the officers he had shot the two men, gave one of the officers the .357 and the leather sapp, and was taken into custody. Defendant presents five issues for review: 1) Whether the District Court should have either dismissed the action or directed a verdict in defendant's favor on the grounds of insufficient evidence. 2) Whether the verdicts were consistentwith theevidence presented relative to the defenses of self-defense and defense of another. 3) Whether the verdicts were consistentwith given instructions on self-defense and defense of another. 4) Whether several given instructionswere proper and whether offered but refused instructions should have been given. 5) Whether defendant was prejudiced by the state's attempts to have certain items admitted as evidence. Issues 1 and 2 challenge the sufficiency of the evidence to support defendant's convictions. Defendant contends the evidence shows his conduct was reasonable and the shootings were justifiable because he was acting in defense of himself and his brother.Section 94-3-102, R.C.M. 1947,deals with the justifiable

use of force in defense of the actor or another and provides in part: 

### "Aperson 

## * * 

## * is justified in the use of force likely 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." This Court stated in Statev. Brooks (19671,150Mont. 399, 410,



### " 

## * * * to justify a homicide by self-defense, theremust be evidence that the party killing acted under the influence of reasonable fear that someonewas going to be murdered or seriously injured. 

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## *. " Evidence presented by defendant went to establishing the reasonableness of his fear for the safety of his brother as justification for the shooting of Curt Phillips and the reasonableness of his fear for his own safety as justification for the shooting of Mike Phillips. This evidence included testimony from a psychologist who evaluated defendant at Warm Springs State Hospital to the effectdefendant was fearful for hisbrother and himself on the night of the shootings and that such fearwas reasonable. Defendant's

own testimony inthisregard included this exchange: "Q. Atthatparticular point intimedidyou have any fear forthewellbeing orthe lifeof Gary? A. Yes, I did. "Q. Why isthat? A. Well, I knew what I'd gone through when somebody had worked me over, knocked me out and worked me over. I woke up inthe hospital. I didn't even know what happened until the doctor explained tome that the sideof my head was caved in. 

## * * * I was 

## -- I was really afraid formy brother. Itwasjust really apparent tome that he could suffer the same kind of damage, if notmore. 

## ''a. Did you think atthatparticular timethat Curt Phillipswas capable and able toinflict that type of injury? A. My God, yes. Curt was a hefty person and he was throwing allof hisweight into those kicks. The firsttimehe kicked my brother, my brother was trying togetup off the floor like this (showing) and the firstkick, he got Gary in the sideof the face and it spun him completely around likehe was on a spitor something, just completely around. I couldn't believe it. I thought, boy if I got kicked likethat, my face would fallapart again. "Q. Atthatparticular point intimedid you make any effort totake the sapp and go over and hit Curt intheback of the head with it oranything to stophim from doing any further damage? A. I asked Mike toplease stop it, or I said tohim 'Stop him.' And Mike had threatened me that I'd better not do anything tostopthem orhe'd do the same tome. So I 

## -- I was really afraidthat if I took a stepand turned my back toMike that he'd land base me on the back of the head orsomething.

"Q. Justprior tothe timethatyou

# -- orthat Curt was shot, what was he doing? A. Hewas bending over togivemy brother a thirdkick.

"Q. What didyou do then? A. I shot. I had to stop him. I had to stophim from kicking. A kick like that could do some damage. Those shoeswere heavy." The stateconcedes defendant was not required to sit idlyby while hisbrother was being beaten, but argues defendant's use of thepistolwas an excessive use of force and unreasonable under the circumstances. Evidence the statepresentedtended to show Gary Larson was not badly beaten by Curt Phillips. To the officers who arrived at the scene shortly after the shootings,defendant's brother did not appear to be injured, and he made no complaint to them of having been beaten. Curt Phillips'brother Mike testified the fightwas "fair". The only witness called who was at the scene and was unrelated to any of the participants testified she did not see Curt Phillips kicking Gary Larson; she did see Phillips hitting Larson with his cast; and, that she had not seen all of the fight. Defendant testified he was not intoxicated and was thinking clearly at the time of the incident. He also testified he had been around guns since an early age and that although he had notmeant to kill Curt Phillips,he "probably could have" wounded him. Testimony indicated only defendant and his brother

were armed with any kind of weapon at the time of the incident. As to the wounding of Mike Phillips, the testimony was similarly conflicting. Defendant asserted he was protecting himself from Phillips' attack when he shot the other man in the

arm. Phillips testified he was moving away from defendantwhen he was shot. Defendant argued the jury improperly rejected his claim the shootingswere justified under the circumstances. Whether the circumstanceswere such as to justify defendant's actions is clearly a question of fact for the jury. State v. Fine (1931), 90Mont. 311, 315, 2 P.2d 1016; Statev. Harkins (1929), 85Mont. 585, 601, 281 P. 551. The jurymay have believed defendant feared for his own life or for the life of his brother, and still found the force defendant used to have been excessive. Mont

# . As this Court stated in Statev. Fuger (1976), I 554 P.2d 1338, 1341, 33 St.Rep. 887, 890, citing the annotator's note to section 94-3-102, R.C.M. 1947:

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## * * * the proper amount of force which may be used and remain justified

# -- [is]a question to be determined by the jury.'" Therewas sufficientevidence for the jury to determine defendant's fatal shooting of Curt Phillips and his wounding of Mike Phillips were not justified. Defendant's Issues 3 and 4 challenge the trial court's giving of certain instructions and refusal of others. Defendant contends two of his proposed instructions relative to the defenses of self-defense and defense of another should have been given. Four instructions directly concerning thesematters, two offered by defendant and given over the state's objections and two offered by the state and given without objection, were given. The given instructions accurately and completely set out the law concerning self-defense and defense of another, and are not challenged by defendant. The refused instructionswere merely repititious. Defendant contends the district court erred in refusing two of his proposed instructions on presumption of innocence and reasonable doubt. Seven instructions on thesematters were given, and defendant does not argue they were insufficient or incorrect statements of the law. He argues that he was entitled to a "very short and brief statement" as to these requirements. Since the legal theories of these proposed instructionswere covered by given instructions, it was not error for the trial court to refuse them. Statev. Lukus (1967), 149Mont. 45, 53, 423 P.2d 49. Defendant also challenges given InstructionNo. 20, arguing his proposed InstructionNo. 14 should have been given in its place. Defendant's proposed instructionNo. 14 states: 

### "Aperson acts knowingly with respect to his conduct or to an element of the offensewhen he is aware of his conduct or when he is aware of theexistence of circumstances described by the statute defining the offense." As given, given InstructionNo. 20 includes the above, and adds: "(Whenknowledgeof the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of a high probability of its existence.)" Defendant argues the additional language furtherdefining "knowledge" was prejudicial as having no relation to self-defense and defense of another. The crimes charged,mitigated deliberate homicide and aggravated assault, require "knowledge"or "purpose"

on the part of the accused. The jury therefore was entitled to

a complete definition of "knowledge"and the given instruction, taken almostverbatim from section 94-2-101,(27), R.C.M. 1947,

was such a definition. Defendant's Issue 5 contends he was prejudiced by the state's attempts to have certain items admitted into evidence. The state sought to have a .357 pistol, a holster, a leather sapp, and some bullet fragments, among other items, received during its case-in-chief. Defendant objected to their admission

on the grounds of insufficient foundation,with the trial court reserving its ruling. During cross-examination of defendant the leather sappwas admitted; the other exhibits were ultimately refused.There was a connection between these items and the crimes charged. All were recovered at the scene of the shootings by the officers called to investigate. Itwas during the testimony of these officers that the state tried to lay a foundation for the admission of these items. The refusal of the items reflects the inability of the state to lay a proper foundation for the admission of evidence, not a bad faith attempt to prejudice the jury. None of the items was irrelevant, immaterial, or otherwise inadmissible in an essential way, anddefendant's conviction cannot be reversed on the grounds their admission was attempted. The judgment is affirmed.n

Chief Justice 

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