NO. 83-59 IN THE SUPREME COURTOF THE STATE OF MONTANA 1984

STATEOF MONTANA, Plaintiff and Respondent,

DOUGLASMcKENZIE STROUD, Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable JamesB. Wheelis, Judgepresiding.

COUNSELOF XECORD: For Appellant: Milodragovich, Dale & Dye;MichaelMilodragovich argued, Missoula,Montana 14oses Law Firm;Charles F. Moses argued,Billings, I4ontana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Robert L. Deschamps, 111,CountyAttorney, Missoula, Montana: Ed McLean and Karen S. Townsend argued, Deputy CountyAttorneys, Missoula,Montana

Submitted: January 26, 1984 Decided: May 17, 1984

Filed: 

### MAY 

## :1

### I984

Clerk

### r.Justice TJ. C. 

### Gulbrandson delivered the Opinion of 

### the Court.Defendant Douglas McKenzie Stroud appeals from his conviction and sentence in the District Court of the Fourth Zudicial District, Missoul-aCounty, for negligent homicide. We affirm. During the early morning hours of March 14, 1982, 

### Pfissoula County Sheriff's deputies responded to a shooting incident in the Rattlesnake area north of Missoula, Montana. Upon arriving at the scene, thedeputies spottedaman, later identified as the defendant,Douglas McKenzie Stroud, standing outside a residence. Both deputies noticed that Stroud

was carrying a gun. He surrendered the weapon voluntarily, was handcuffed, and placed in the rea.r of the deputies' patrol car. Two deputies then entered the residence. After entering, one of the deputies heard and observed

a woman later identified 

### as Annette Stroud, the defendant's ex-wife, shouting and screaming. The deputy checked the

woman to see if she was injured. Determining that she was physically unhurt, the deputy proceeded to check the rest of the home for an injured party. In the basement, the deputy discoved a nude male, 1-ateridentified.as Curt Jacky,whose chest was covered with blood. The deputy determined that Jacky had been shot. Together with an 

### emergency medical technicianwho had just arrivedwith a.nambulance, thedeputy concl-udedthat Jackywas dead. The deputy secured the house and then went outside to await the arrival of the chief of detectives. Whilewaiting, he overheard the defendant Stroud make several statements, including "my own house,my own kids in the house, a guy j.n bed withmy wife," and "whatwould youhave done?"An autopsy of Jacky revealed that he died of a gunshot wound to the chest and abdomen. Other abrasions and soot marks were found on the body, indicating that other gunshots had been fired near Jacky. The defendant suffered no bullet wounds or powder burns. The examining physician concluded that the fatal shot entered Jacky's body at an angle of 60' left to right and 25' downward. A firearms examiner for the State Crime Laboratory concluded that the fatal shot and other abrasions came from a Smith and Wesson Model 66 .357 revolver taken from the defendant by sheriff's deputies. Annette Stroud and the defendanthad been married from June, 1975 to January, 1982,having separated briefly in 1978 and July, 1981. Attempts at reconci-liationwere made after the final divorce papers had been served. During defendant's trial, Annette testified that her relationship with Stroud "ld been difficult, and she related several incidents of extramarital associations and physical violence. At various times during their unhappy marriage, Annette testified that Stroud had pointed guns at her, had held her to the floor with a knife ather throat,had slapped her and had strangled her with a jacket or his ha-nds. Although their divorce had become final in January, 1982,property settlement and child custody arrangements were stillpending and were the subject of much dispute between Annette and the defendant. A court hearing on these matters had been scheduled for March 17, 1982, threedays after the shooting incident. In early February, 1982,Annette took part in two ski trips in Idaho. During her second trip, shemet Stroud, who

was returning to Missoula from a business trip in Nevada. Her meeting with Stroud was not a harmonious one, and she

rnore than once refused his amorous advances. In the

### meantime, she had met Curt Jacky, an Idaho resident. She spent more than one time with Jacky,and Stroudwas apparently aware of this association, as one evening, Jacky had received a call from Stroud, who was then looking for Annette. On March 13, 

### 1982, Stroud visited his old home in the Rattlesnake to take pictures of the house and its various

rooms and to take his oldest son, Ian, for a visit. Jacky had called Annette that same day and had told her he was driving to Missoula for a visit. He arrived shortly before dinner in a blue Corvette with a 

### personalized license plate, "Curt." Annette, Curt, and Ianwent to dinner and a movie. The three then returned toAnnette's home,where Ian and his youngerbrotherwere left with ababysitter while Annette and Curt went dancing. The couple returned to the home about 12:30 a.m. and shortly thereafter went to bed. Prior to retiring,Annette checked all the doors to be certain they

were locked. On that same evening, Stroud and his live-in girlfriend, JoAnn Jennings, had also attended a movie. At trial, Jennings indicated that Stroud was depressed and had left their apartment about 12:20 a.m. to visit his former residence. Before leaving, Stroud left the telephone number of his lawyer with Jennings in the event he might end up in trouble. Apparently, Stroud was not permitted to be at the residence because of the divorce. Stroud indicated that the purpose ofhis visitwas to photograph Jacky'sblue Corvette, which hehad observed sometime earlier, in order to showthat Annettewas entertaining "overnightguests." Stroud apparently believed his pictures would bolster his position in thechild custody proceedings set forMarch 17. Before leaving, he armed. himself with the .357 revolver. Upon arriving athisformer home, Strouddidnotphotograph thecar. Instead, he enteredthehousewith a key made previously and proceeded tothe upstairsbedroom. Heopened thedoor and began takingpictures of Annette and CurtJacky, who atthetimewereengaged inan intimate position. Stroud flashed four pictures while thecouple strovetogetup from thebed. Heordered them tositon thebed, ashewanted to talkwith them. Curt asked permission toputon hisclothes, but this request was refused. Annette later testified that she tried toreach thephone todial 911, but Stroud grabbed the phone and threw it down the hallway. According toAnnette, Stroud then remarked, "sit down or I'll kill. you." Stroud then advanced toward her, but she tried to get past him torecover the phone. Stroud then jumped back, pointed the .357 revolver inher face, cocked it,and said, "sitdown

orI'llkillyou, too." Stroud then reached out and pushed Annette on the shoulder, causing her toloseher balance and fallbackward. As she fell, she saw Curt go past her. She put on her robe and rushed tothe hallway, only tohear the gun go off a.nd Curt falldown the stairstothebasement family room. While

an apparant struggleensuedbetween Stroud and Jacky, Annette attempted to call 911, but was unable to get a clear line because anotherhouse phone was off thehook. She thenheard two more gu.nshots, two "reallyawfulmoans," and finallyCurt Jacky saying, "you killer." Stroud then. came up the stairs and, according toAnnette, pointed the gun ather again and said, "Ioughttokillyou, too. Itwon't do any more harm."

### Stroud then called 911 

### himself to report a shooting. He then called JoAnn Jennings to get his lawyer's phone number, and then called his lawyer. He again called the 911 operator. When Annette asked Stroud why he had done this,he replied, "Because I 

### love you." By this time, Annette had discovered thenude body of CurtJacky lying at the bottom of the stairs. After completing the calls, Stroudwent outside to await the arrival of authorities. The defendant's version of the events leading up to and including the shooting acknowledges his marital problems with Annette, as well as many of the incidents that occurred during his presence in the home. He claimed, however, that the pistol was brandished only for self-defense, and that Jacky had jumped him while hewas trying to leave. He admitted pointing the gun at Annette and the victim. He also admitted thathe did not take apicture of Jacky's car,ashe had told Jenningshe would do. Finally,he acknowledged that he was entering a "high-risk" situation when entering the home during the early morning hours of March 14. 

### There is

some question as to whether other weapons were in the home that morning, although Stroud had personally removed some of his guns before March 14 and had been told by Annette that the other weapons were not in the house. He claimed that he had never made a direct threat with a gun on any person with the exceptionof himself. Stroud was charged with deliberate homicide for the death of Curt Jacky. He was tried in June, 1982,before a jury. Prior to giving the case to the jury, the trial judge instructed the jury on mitigated deliberate homicide and negligent homicide as well as deliberatehomicide. The jury acquitted Stroud of deliberate and mitigated deliberatehomicide, hut returned a guilty verdict for negligent homicide. The trial judge subsequently sentenced Stroud to the maximum of tenyears,with seven suspended, plus an additional ten years for committing the offense with a dangerous weapon. Hewas also designated a dangerous offender. On appeal,Stroud raises the following issues:

(1) Whether the jury in his case was properly impaneled? (2) Whether evidence of "other crimes or acts" was properly admitted? (3)Whether Stroud was properly convicted of negligent homicide? (4)Whether Stroud was denied his constitutional right to bear arms? (5) Whether Stroud's actions directly caused Jacky's death?(6)Whether Stroud was properly sentenced? In disposing of this case,we treat Issue Five together with Issue Three, as both are concerned with the appropriateness of the jury's negligent homicideverdict.

WHETHER THE JURYWAS PROPERLY IMPANELED? 

### --- On June 1, 1982,the date originally set for trial, the trial judge brought the fifty-five prospective jurors into court for ameeting. Neither the prosecutors, defendant,nor defense counselwerepresent. The judge proceeded to explain the trial process in general and asked the members of the jury panel whether everyone could serve two weeks. As a result of this inquiry, two prospective jurors were excused from duty. No record was kept of this meeting. Apparently the trialwas rescheduled forJune 7,atwhich time a regular

### voir dire examinationwas conducted by 

### counsel with defendant present. Prior to the beginning of regular voir dire, defense counselmoved to discharge the iurypanel on grounds that the meeting of June 1 held outside defendant's presence was in violation of defendant's constitutionaland statutorygua-rantees of presence during trial. The motion was d-enied,but the trial judge explained the events of June 1 as follows: "1'11 deny [the motion] inasmuch as what I told the people who were drawn was--I questioned them about their ability to serve for two weeks, and I think that's within my discretion in impaneling them, the jury panel. It's true there was no record. No one was present but me and the clerk, but the only discussion was about whether people could come, and I 

### discharged, I think, two people as a result of that.

"You can assumewhen I 

### impaneled the jury or brought in and qualified the panel I told them basically what the outline of our trial would be, and I'll do that again this morning, at least so much of it as seemsuseful, so get right into the questions that are necessary, that are related to their state of mind and their ability to serve.

# . ..Nor do Iwant the usual harangue of--not the usual-,but particularly--but one I've heard many times about how the courtprocess works, etcetera. Ialready told them that,so I iustwant to get into the questions sowe can get them picked." Transcript of Proceedingsat 5, 8. 

### On appeal, defendant renews his objection, claiming prejudice and error resulting from the trial court's actions. We disagreewith this assessment. We accept the trial judge's explana-tionof the events of June 1. 

### There is no hint of prejudice here. The situation under attack here is little different from one described in Brown v. State (1975), 29 

### Md.App. 1, 349 A.2d 359. InBrown, a defend.antchallenged the right of a trial judge to instruct prospective jurors outside defendant's presence on the meaning of important legal concepts like "probabl-ecause" and "beyond a reasonable doubt," matters far more crucial than the general outline of a criminal trial and ability to sit for twoweeks. The jurors in Brown were not advised how to apply the legal concepts to the particular set of facts in that case. Apparently this educationalprogram is common in trial ccurts in Baltimore,Maryland. 29 Md.A.pp. 1, 349 A.2d at 362. The Maryland Court of Special Appeals rejected the defendant's challenge in view of the purely educational nature of the trial court's examination and of the fact that this examination was not a "critical.stage" in the proceedings against the defendant. 29 Md.App. 1, 349 A.2d at 362-63. See also People v. Hawks (1919), 206 Mich. 233, 172 N.W. 405,where the Michigan Supreme Court found no evidence of prejudice in the trial judge's rea.dingof instructions to jurors on their civic duties and where the defendantwas not present. Similarly,we find no evidence of prejudice in the trial court's explanation of the criminal trial process and determination of prospective jurors' ability to sit for a two-week trial when the defendant and counsel were not present. In reaching this conclusion,we are not suggesting that the trial judge's essentially educational examination should be adopted by other district jud.ges. Nor are we suggesting that the judges's method of examination was the best one. Certainly a record of any such proceedings should be maintained. Here, we conclude only that there is no credibl-e evidence of prejudice to the defendant Stroud.WHETHER EVIDENCE OF "OTHER CRIMES OR ACTS" WAS PROPERLY 

### - -- 

### - ADMITTED Defendant objects to the introduction of "othercrimes

or acts" evidence against him at trial, specifically (1)the testimony of Annette Stroud during the State's case-in-chief concerning the defendant's violent behavior toward her during their marriage; and (2) the testimony of rebuttal witnesses Nancy Alderson, Ivan Alderson, and Ladene Priddy concerning defendant's past conduct. With respect to Annette's testimony, defendant insists that it is prejudical and was admitted contrary to Rule 404 (b)

## ,the substantiveguidel-inesof Statev. Jensen (1969), 153Mont. 233, 455 P.2d 631,and the procedural guidelinesof Statev. Just (1979),184Mont 262, 602P.2d 957. Rule 404(b)provides that: 

### "[elvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however,be admissible for other purposes, such asproof ofmotive, opportunity, intent, preparation,plan, knowledge, identity, or absence of mistake or accident." Admissibility is also governed by specific substantive and procedural rules. The four substantive requirements are 

### (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme,plan or system; - and (4)determination tha-tthe probative value of the evidence is not substantially outweighed by the prejudice to the defendant. Jensen, supra, 153 Mont. at 239, 455 P.2d at 634 and Rule 403, Mont.R.Evid. In addition, three procedural guidelines must be followed: (1) notice to the defendant prior to trialthat evidence of other crimes,wrongs or actswill be introduced.; (2) an admonition by the judge to the jury when the evidence is introduced that it i.sadmitted solely for one or more of the accepted purposes stated in Rule 404(b); and (3)

a cautionary jury instruction to the same effect, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. Just, supra, 184 Mont. at 274, 602P.2d.at 963-64. Theseprocedural ruleswere crafted from similar procedures used in Minnesota. See State v. Rillstrom (1967), 276 Minn. 174, 149 N.W.2d 281; State v. Spriegl (1965),272Minn. 488, 139 ~.~.2d 167. On appeal, the State takes the initial position that the Jensen-Just analysisdoesnot apply,and that the correct analysis should be that followed in State v. Riley (Mont. 1982), 649 P.2d 1273, 39 St.Rep. 1491; State v. Trambley (Mont. 1980), 620 P.2d 367, 37 St.Rep. 1871, and State 

### v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009. We disagree. In the Riley-Trembley-Jackson line of ca-ses,we were concerned with prior wrongful acts inextricably

### - or inseparately linked 

### -- with the crime charged, as opposed to prior wrongful acts which are wholly independent -- of the crime charged, althbugh similar 

### - to 

### - it. In the instant case, we are concerned with the latter type of crimes or acts, and therefore the Jensen-Just rules apply. 1. Similarity of Crimes or Acts Annette Stroud testified to several violent acts committed by the defendant during the course of their marriage. Some of these involvednomore than intimidationand threats; others,however, included unacceptable physical contact. The State introduced evidence of these prior acts to show acommon scheme, plan, or design in the defendant's conduct, i.e., the threat and possible carrying out of violence to intimidate Annette and/or those associatedwith her. Annette's version of events of March 14 suggests a similarity between the acts committed that evening and the prior acts. Defendant was armed, pointed his weapon at Annette and Jacky, mouthed verbal threats concerning their lives,and physically shovedAnnette. In the instant case,a death occurred, and that appears to be the only difference between the acts committed on March 14 and those committed previous to that time. We think the evidence of prior acts is similar enough to the acts involved in the immediate case to iustify their admissionbased on the State's theory of the case. Any doubts as to similarity are assuaqed by our conclusion, discussed infra, that Annette's testimony was not prejudicialbecause of the jury'sultimateverdict. 2. Nearness inTime All of the events d-escribedby Annette took place within one to three-and-one-halfyears of the events of March 14. In Just, supra,we held that the nearness in time test

was satisfied by proof of prior acts committed three years before the charged crime. 184Mont. at 269, 602P.2d at 961. Under the circumstances, we hold that the prior acts were committed sufficiently close j.ntime to meet this standard. 3. Tendency 

### - to Establish - a Common Scheme, Plan,

# or System. Defendant'sprior threats and assaults were apparently designed to intimidate and manipulate Annette into cooperating with him. Indeed, at onepoint inher testimony, Annette indicated that she did not seek divorce on an earlier occasion because of these threats. The defendant's actions on

### themorning of March 14 

### appear tobe consistentwith hispast attempts to influence Annette with violence. Evidence of these actionswas thereforeadmissible. 4. 

### Probative Value v. Prejudicial Effect Evidence of defenda.nt1 s prior acts was unquestionably probative of the State's theory that Stroud's actions were not an isolated event, and thathe had the requisite purpose

or knowledge to commit homicide. There is of course the serious potential of prejudice to the defendant, but we do not believe the potential manifested itself in reality. The defendant was acquitted of both deliberate and mitigated deliberate homicide. It is difficult to seewhat prejudice

was suffered under these circumstances. The finding of negligent homicide implies a finding that defendant either consciously disregarded the risk of death or disregarded a risk of which he shou1.d.have beer? aware, either situation embodying a gross deviation from the conduct of a rea-sonable

man. The iury necessarilyhad reasonable doubts aboutdefendant's present conduct being part of a common scheme, plan, or system of conduct. The negligent homicide verdict suggests that defendant's conduct was measured as of March 13 

### and 14, 

### with prior acts being virtually irrel-evant. Thus, the prospect of prejudice is atmostminimal. 5. 

### Notice and Purpose The State gave defendant notice that itwould introduce evid.enceof other crimes in order to prove that the defendant's action were part of a common scheme,plan or system. 6. 

### Admonition to the Jury At no time before, during or after Annette's testimony did the court admonish the jury concerning the evidence of prior wrongful acts and the limited purposes for which thetestimony was permitted.. Although language in a prior decision, State v. Case (Mont. 1980), 621 P.2d 1067, 1071-72, 37 St.Rep. 2057, 2063, suggests that such an omission is reversible error, we hold that in this case, no reversible error was committed, principally because of defense counsel's failureto object to the court's failure to admonish the jury before, during,or immed-iatelyfollowingAnnette's testimony. P. problem similar to the one before us has been considered by the Minnesota Supreme Court, the drafter of the guidelines which inspired.Just. In Statev. Schweppe (1975), 306 Minn. 395, 237 N.W.2d 609, the Minnesota high court declined review of alleged failures to give notice and a cautionary instruction when defense counsel in that case did not protest the a-bsenceof notice and did. not request an appropriate instruction. 306 Minn. 395, 237 N.W.2d at 616. Two years later, in Statev. Forsman (Minn. 1977), 260 ~.~.2d. 160, the court addressed a similar problem, i.e., where notice was properly given, but where cautionary instructions were neither requested or given. After analyzing the problem, the court concluded that: 

# ".

. . once the state has given notice

# .

. . the other Spriegl-Billstrom procedures became mandatory defendant's objection Defendant's failure to request limiting instructions in this case is inexplicable. We reiterate that the trial court should, sua sponte, give an unequivocal limiting instructionboth at the time the evidence is admitted and at the close of trial. But in the absence of a request, its failure to do so was not reversible

- - error." Forsman, supra, 260 N.W.2d at 169. (Emphasisadded.) See also State

### v. Clark (Minn. 1980), 296 ~.~.2d 359, 368 n. 7 (dictum) (fa-ilure to requestBillstrom limiting instruction waives claim of error).

### We reach the same resulthere. To allow defense counsel to remain silent while a trial judge fails to admonish a jury i-stantamount to permitting counsel to plant errors in the trial proceedings consciously. This we cannot and will not allow. Therefore,once the State has given notice under Just that itwill introduce evidence of other crimes or acts, the remaining proced-uresbecome mandatory only upon defendant's objection and/or request. As the court did in Forsman

## , remind trial judges that admonition the still should be done sua sponte. 7. 

### Cautionary Instruction Prior to closing arguments, the trial judge gave the following instruction to jurors concerning the "othercrimes

or acts"evidence: "You are instructed that evidence of other acts, wrongs, or crimes has not been admitted for the purpose of proving other acts. Such evidence wa.sreceived only for the limited purpose of impeachInq statements or conclusions of either the defendant or other witnesses and for no other purpose. You are warned that 

### - to convict for any act except that charged may result in unjust double punishment. The defendant is not being tried a.ndmay not be convicted for any offense except that charged. You are cautioned to weigh the evidence only for the limited purpose earlier stated."

(Emphasisin original instruction.) This instruction, given as Court's No. 33, 

### was based on defense counsel's Proposed Instruction No. 45, 

### except that the second sentencewas rewrittenby the trial judgewithout objectionby the county attorney or defense counsel. This instruction unquestionably omits discussion of the "common scheme,plan or system" theory of the State's argument for introducingAnnette Stroud's testimony, although the State, for whatever reason,did not object to this omission.On appeal, defendant objects to this instruction on grounds that it somehow places Annette's testimonybefore the jury in

an unduly prejudicialway. We cannot find a defensible basis for defendant's argument. The failure of defense counsel to object to this instruction on the grounds of undue prejudice forecloses review. See Forsman, supra. Moreover, we have already emphasized the strong prospect that Annette's testimony was not prejudicial because of the jury's ultimate verdict of negligent homicide. Nevertheless, we admonish trial judges and counsel in future cases to consider carefully the content and impact of any cautionary instruction. In addition to criticizingAnnette Stroud's testimony, defendant challanges rebuttal testimony by Nancy Alderson, his former wife, Ivan, Nancy's current husband, and Ladene Priddy about prior assaults on Annette by defendant. This evidence,admitted to rebutdefendant's claims on thewitness stand that he was a peace-loving, nonviolentman,was admissibleunder Rule 404(a)(l),Mont.R.Evid.

WHETHER THE DEFENDANT WAS PROPERLY CONVICTED 

### - OF NEGLIGENT HOMICIDE? Defendant maintains thathis negligent homicide conviction was improper for three reasons: (1)the negligent homicide statute is either ambiguous or suffers from a failure to give the defendant notice so that he can conformhis conduct to its requirements; (2) the evidence is insufficient to establish negligent homicide, assuming a correct interpretation of the law; and (3) the jury instructions are inappropriate to satisfy the requirementsof due process,presumablybecause of problems inherent in the negligent homicide statute. Initially,we notewith respect to thepropriety of the statute and the instructions based upon it that any errors elleged by defendant were invited. The State was out to prove deliberate homicide, and objected to the giving of any instructionspertaining to mitigated deliberate or negligent homicide. Defense counsel, however, convinced the trial judge to give instructions on thesepoints. We are therefore disinclined to review arguments, however vague, on the propriety of negligent homicide law. Nevertheless,we think the statute and accompanying instructionsquite clear,unambiguous, and appropriate. The real issue is whether there is sufficient evidence to permit the jury to reach the verdict of guilty beyond 

### a reasonable doubt. We believe there is such evidence. At trial, thedefendantpictured himself as a concerned parent out to protect his interest 

### in a child custody hearing. His actions at his former residencewere characterized as self-defense. The jury did not accept this theory or the State's contention that defendant either purposely or knowingly killed Curt Jacky. The conclusion that defendantwas guilty of negligent homicide was proper in light of the evidence. When defendant left his apartment and prepared to enter his former residence armed and contrary to a court order,he knewor should have known thathe would be entering

a high risk situation. His actions toward Annette and Curt Jacky, especially those involving the brandishing of a dangerous weapon, were very risky. He instigated and continued

a struggle involving the great risk of serious injury or death. Defendant's assertion that he was defending himselfwhen his alleged attackerwas naked and.unarmedwas obviousl..y deemed implausible by the jury, and there is no reason to dispute the jury's conclusion. The available evidence was sufficient for the jury to conclude that defendant had acted "negligently" within the meaning of Section 45-2-101(37), MCA, and was therefore guilty of negligenthomicide under Section 45-5-104,MCA. We will not overturn this judgment. Our analysis of the evidence also convinces us of the groundlessness of defendant's assertion that "causation" is not shown or demonstrated by competentevidence. There is no question that a bullet from Ken Stroud's weapon caused Curt Jacky's death. The only remaining question iswhether Jacky would have lived hut for Stroud's conduct. The answer is clearly yes. Defendant's conduct involved a gross deviation from the conduct of a reasonable man. Had defendant chosen not to pursue this unreasonable line of conduct,Curt Jacky would not have been shot and killed. The evidence supports the jury's implicit conclusionthat defendant's negligent act "caused" Jacky'sdeath.

WHETHER DEFENDANTWAS DENIED HIS CONSTITUTIONALRIGHT 

### -- TO BEAR ARMS? Defendant'sposition here is that he was acquitted of deliberate homicideandmitigated deliberate homicide because the jury believed his self-defense argument, and that the subsequent conviction for negligent homicide can only be based on the improper belief that possessing a weapon, a right protected und.er Mont. Const. Art. 11, Sec. 12, was itselfnegligent.

### We agree with the State that defendant's argument is incredible. The argument isbased not only on faulty assumptions concerning the jury'sverdict,but also on an unbelievably strained construction of the constitutional right to bear arms. Initiall-y, we note that it is pure conjecture to argue that the jury believed defendant's self-defense theory

or concluded that carrying aweapon was enough to constitute negligence. More importantly,the right tohear arms conveys no tight or privilege to enter a residence without permission, threaten its unarmed occupants,and.discharge a weapon under unreasonable conditions. The finding of negligent homicide as defined by statute in no way infringes on the constitutional right to possession of firearms.

WHETHER THEDEFENDANT WAS PROPERLY SENTENCED? 

### Defendant raises five objections to sentencing procedures inhis case: (1)

### the sentencewas forpunishment rather than for prevention of further crime or for reformation of the defendant; (2) 

### the sentence effectively punishes him for being an ex-policeman, and thus violates his right to equal protection; (3) 

### the sentence for knowing use of 

### a weapon cannot be applied to negligent homicide; (4)

### no hearing was held concerningany unusual or substantial duress sufferedby defendant during the shooting incident; and (5) 

### the trial judge's private meeting with the probation officer concerning the pre-sentence investigation reportwas improper. Defendant's first argment is clearly without merit. There is no question that Mont. Const. Art. 11, Sec. 28, 

### provides that "[llaws for the punishment of crime shall be founded on the principles of prevention and reformation." However, there is no evidence or authority cited by defendant

### to establish that Stroud'ssentence will not deter either him or others from future wrongful conduct,or that the sentence will not lead to reformation. Defendant's equal protection claim is equally groundless. Defendant citesno authority for the proposition that the extra ten-year sentence for use of the weapon somehow treats him unfairly. As a former policeman, defendant was
more aware than a layman of the risks entailed in entering a potentially explosive emotional situation with a deadly weapon. Policemen are not a protected class of citizens, so any classification affectingamember of thatgroup need only have a rationalbasis. Given the evidenceproduced at trial, holding defendant to a greater knowledge of the risks inherent in his actions, for the purpose of deciding whether his sentence should be enhanced under Section 46-18-221(1), is unquestionably reasonable and therefore constitutionally sustainable. Defendant's third argument is similarly unconvincing. It is 

### somewhat incongruous to argue that he acted as he did in self-defense, and then maintain that the negligent homicide verdict somehow prohibits a finding that defendant "knowingly"used a weapon within themeaning of the enhancement statute, Section 46-18-221(1), MCA. Nevertheless, we need not ponder this inconsistency. In State v. Hubbard

(Mont. 1982), 649 P.2d 1331, 39 St.Rep. 1608,we held that a person can knowingly use a firearm and stillbe negligent by 

### grossly deviating from the conduct of a reasonable person in

a 

### similar situation with regard to the results of his actions. That decision is applicable to the facts of this

case.Defendant's claim that he may have been within one of the exceptions to mandatory minimum sentencing, i.e., acting under unusual or substantialduress, is notwell-founded, and he is therefore not entitled to a separate hearing on this issue. Initially,we note that defendant received the maxi-

mum sentence for negligent homicide, not the minimum. Be

### - - cause the judge was not disposed to give the minimum sentence, there is no chance that he would have given less than theminimum sentence. This case is similar to State v. Zampich (Mont. 1983), 667P.2d 955, 40 St.Rep. 1235,where in the case of a mitigated deliberate homicide conviction,we found no error in the trial court's failure to make specific findings pursuant to Section 46-18-222(2) and (3)when the trial court imposed a sentence greater than the mandatory minimum sentence formitigated deliberatehomicide. Just as it would have been wasteful for the trial court in the Zampich case to make findings about unusual or substantial duress when it had concluded that more than the mandatory minimum sentence should be imposed, it would be equally redundant to order a separate hearing into similar mental conditions in this negligent homicide casewhere themaximum sentencewas applied. In any event, the trial court heard substantial evidence during the trial from psychologists and lay witnesses concerning defendant's mental state. Had a separate hearing under Section 46-18-222 been required,the fact that a hearing was not held would have been harmless error in view of the testimony offered at trial. Finally, the off-the-record meeting between the judge and the probation officer without the presence of defendant or counsel was not improper in this case. --- In State v.Redding (Mont. 1984), 675 P.2d 974, 41 St.Rep. 147, this Court held that these off-the-record proceedings were violative of due process. However, the Redding rule is to be applied prospectively, and does not pertain to "sentences rendered before the date of [the] decision [Jan. 24, 19841

### " unless the information in the presentence report "is shown to be inaccurate or prejudicial." Redding, supra, 675 P.2d at 977, 41 St.Rep. at 147. Here, defendant was sentenced on August 18, 1982, and does not allege any inaccuracies in the presentence report or any prejudice arising from its use by the trial judge. Accordingly, the Reddinq rule will not be applied in this case. The conviction and sentence of defendant Douglas FlcKenzie Stroud are affirmed.

We concur:

Chief ' Justice -..

JusticesMr. JusticeJohn C. Sheehy,dissenting:

I am amazed that defendant Stroud has appealed his conviction for negligent homicide in this case. On the facts,he is fortune's favorite in that the jurydid not find him guilty of deliberate or at leastmitigated homicide. The sentencing judge slapped him with a hard sentence for a negligent crime, but if his appeal were successful. and another trial. granted, his luck might run out and he might find himself convicted of a greater crime. Since he appeals, I take it seriously, Iwould granthis wish and reverse for a

new trial on two grounds treated lightly by the majority. First, I believe the District Court erred in interrogating prospective jurorswithout a record outside the presence of counsel and defendant. While we have not yet decided whether 

### -- voir dire examination of jurors ispart of a criminal trial, it seems asmuch a part as a starter is of an automobile. It is not enough, therefore, to approve a private empanelment of iurors hy relying on the later statement of the judge that he said nothing prejudicial.to the defendant. We have no record to support the judge, and prejudice must be presumed. Section 46-16-303,MCA, requires the examination of prospective iurors to be conducted by the county attorney and the defendant or his counsel. It also permits "additional" examination by the court. I wou1.d hold that such "additional" examination can only occur at or immediately after the 

### -- voir direby counsel, with allpresent. Second, it does not make judicial sense to state that under Just (184Mont. 262, 602 P.2d 957) the District Court

### must sua sponte qive a limiting instruction 

### on other crimes evidence, and then fault defense counsel for not objecting when the District Court fails its duty. Defense counseldoes not thereby entrap the court; it entraps itself by its own neglect. Since other crimes evidence is admissible only as
an exception to the rule of evidence, this Court must be careful to make sure the jury understands its exceptional nature, and its limited probative use. The state should be

as alert as the Court in making sure the explanatory instruction is given, especially since it is the state that marshals the other crimes evidence. Yet the state gains by the majority's rule on this point. It is the defendant, whose innocence should be presumed, who loses for an oversight of the Court. A 

### sense of fairplay should dictate another result. As to the sentence itself, I would return for resentencing before another district judge because of the incident where the District Court here had 

### a private interview with the pre-sentence investigator before imposing sentence. Defendant's due process rights were violated. State v. Redding (Font. 1984) 41 St.Rep. 147, -

### Mont

# . - I 675 P.2d. 974.

t I 

### join in the dissent sfMr. Justice Sheehy.