NO. 83-59 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

DOUGLAS McKENZIE STROUD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF XECORD: 

For Appellant: 

Milodragovich, Dale & Dye; Michael Milodragovich 

argued, Missoula, Montana 

14oses Law Firm; Charles F. Moses argued, Billings, 

I4on tana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana: Ed McLean and Karen S. Townsend argued, 

Deputy County Attorneys, 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-a County, 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, the deputies spotted a man, 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-ater identified. as Curt Jacky, whose 

chest was covered with blood. The deputy determined that 

Jacky had been shot. Together with an emergency medical 

technician who had just arrived with a.n ambulance, the deputy 

concl-uded that Jacky was dead. 

The deputy secured the house and then went outside to 

await the arrival of the chief of detectives. While waiting, 

he overheard the defendant Stroud make several statements, 

including "my own house, my own kids in the house, a guy j.n 

bed with my wife," and "what would you have 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 defendant had been married from 

June, 1975 to January, 1982, having separated briefly in 1978 

and July, 1981. Attempts at reconci-liation were 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 at her 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 still pending 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, three days after the shooting incident. 

In early February, 1982, Annette took part in two ski 

trips in Idaho. During her second trip, she met 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 Stroud was 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 Ian went to dinner and a movie. 

The three then returned to Annette's home, where Ian and his 

younger brother were left with a babysitter 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 of his visit was to photograph Jacky's blue Corvette, 

which he had observed sometime earlier, in order to show that 

Annette was entertaining "overnight guests." Stroud apparently believed his pictures would bolster his position in the 
child custody proceedings set for March 17. Before leaving, 

he armed. himself with the .357 revolver. 

Upon arriving at his former home, Stroud did not photograph the car. Instead, he entered the house with a key made 

previously and proceeded to the upstairs bedroom. He opened 

the door and began taking pictures of Annette and Curt Jacky, 

who at the time were engaged in an intimate position. Stroud 

flashed four pictures while the couple strove to get up from 

the bed. He ordered them to sit on the bed, as he wanted to 

talk with them. Curt asked permission to put on his clothes, 

but this request was refused. Annette later testified that 

she tried to reach the phone to dial 911, but Stroud grabbed 

the phone and threw it down the hallway. According to Annette, Stroud then remarked, "sit down or I'll kill. you." 

Stroud then advanced toward her, but she tried to get past 

him to recover the phone. Stroud then jumped back, pointed 

the .357 revolver in her face, cocked it, and said, "sit down 

or I'll kill you, too." 

Stroud then reached out and pushed Annette on the 

shoulder, causing her to lose her balance and fall backward. 

As she fell, she saw Curt go past her. She put on her robe 

and rushed to the hallway, only to hear the gun go off a.nd 

Curt fall down the stairs to the basement family room. While 

an apparant struggle ensued between Stroud and Jacky, Annette 

attempted to call 911, but was unable to get a clear line 

because another house phone was off the hook. She then heard 

two more gu.nshots, two "really awful moans," and finally Curt 

Jacky saying, "you killer." Stroud then. came up the stairs 

and, according to Annette, pointed the gun at her again and 

said, "I ought to kill you, too. It won'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 the nude body of Curt Jacky lying at the bottom of 

the stairs. After completing the calls, Stroud went 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 he was trying to leave. He admitted pointing the gun at Annette and the victim. He also 

admitted that he did not take a picture of Jacky's car, as he 

had told Jennings he 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 exception of 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 deliberate homicide. The jury 

acquitted Stroud of deliberate and mitigated deliberate 
homicide, hut returned a guilty verdict for negligent homicide. The trial judge subsequently sentenced Stroud to the 

maximum of ten years, with seven suspended, plus an additional ten years for committing the offense with a dangerous 

weapon. He was 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 homicide verdict. 

WHETHER --- THE JURY WAS PROPERLY IMPANELED? 

On June 1, 1982, the date originally set for trial, the 

trial judge brought the fifty-five prospective jurors into 

court for a meeting. Neither the prosecutors, defendant, nor 

defense counsel were present. 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 trial was rescheduled for June 7, at which time a regular 
voir dire examination was conducted by counsel with defendant 

present. 

Prior to the beginning of regular voir dire, defense 

counsel moved to discharge the iury panel on grounds that the 

meeting of June 1 held outside defendant's presence was in 

violation of defendant's constitutional and statutory gua-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 assume when 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 seems useful, so get right into the 

questions that are necessary, that are 

related to their state of mind and their 

ability to serve. . . . Nor do I want the 

usual harangue of--not the usual-, but 

particularly--but one I've heard many 

times about how the court process works, 

etcetera. I already told them that, so I 

iust want to get into the questions so we 

can get them picked." Transcript of 

Proceedings at 5, 8. 

On appeal, defendant renews his objection, claiming 

prejudice and error resulting from the trial court's actions. 

We disagree with this assessment. 

We accept the trial judge's explana-tion of 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. In 
Brown, a defend.ant challenged the right of a trial judge to 

instruct prospective jurors outside defendant's presence on 

the meaning of important legal concepts like "probabl-e cause" 

and "beyond a reasonable doubt," matters far more crucial 

than the general outline of a criminal trial and ability to 

sit for two weeks. The jurors in Brown were not advised how 

to apply the legal concepts to the particular set of facts in 

that case. Apparently this educational program 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.ding of instructions to 

jurors on their civic duties and where the defendant was 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 "other crimes 

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 substantive guidel-ines of State v. Jensen (1969), 

153 Mont. 233, 455 P.2d 631, and the procedural guidelines of 

State v. Just (1979), 184 Mont 262, 602 P.2d 957. 

Rule 404(b) provides that: 

" [el vidence 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 as proof of motive, 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-t the 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 trial 
that evidence of other crimes, wrongs or acts will be introduced.; (2) an admonition by the judge to the jury when the 

evidence is introduced that it i.s admitted 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, 602 P.2d. at 963-64. These procedural rules were crafted 

from similar procedures used in Minnesota. See State v. 

Rillstrom (1967), 276 Minn. 174, 149 N.W.2d 281; State v. 

Spriegl (1965), 272 Minn. 488, 139 ~.~.2d 167. 

On appeal, the State takes the initial position that 

the Jensen-Just analysis does not 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 involved no more than intimidation and threats; 

others, however, included unacceptable physical contact. The 

State introduced evidence of these prior acts to show a 
common 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 associated with 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 shoved Annette. 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 admission based 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 

prejudicial because of the jury's ultimate verdict. 

2. Nearness in Time 

All of the events d-escribed by Annette took place 

within one to three-and-one-half years 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. 184 Mont. at 269, 602 P.2d at 961. 

Under the circumstances, we hold that the prior acts were 

committed sufficiently close j.n time to meet this standard. 

3. Tendency - to Establish - a Common Scheme, Plan, or 

System. 

Defendant's prior threats and assaults were apparently 

designed to intimidate and manipulate Annette into cooperating with him. Indeed, at one point in her testimony, Annette 

indicated that she did not seek divorce on an earlier occasion because of these threats. The defendant's actions on 
the morning of March 14 appear to be consistent with his past 

attempts to influence Annette with violence. Evidence of 

these actions was therefore admissible. 

4. Probative Value v. Prejudicial Effect 

Evidence of defenda.nt1 sprior acts was unquestionably 

probative of the State's theory that Stroud's actions were 

not an isolated event, and that he 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 see what 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 necessarily had reasonable doubts about defendant'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 at most minimal. 

5. Notice and Purpose 

The State gave defendant notice that it would introduce 

evid.ence of 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 the 
testimony 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 

failure to object to the court's failure to admonish the jury 

before, during, or immed-iately following Annette'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 State v. 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-bsence of notice and did. not request an 

appropriate instruction. 306 Minn. 395, 237 N.W.2d at 616. 

Two years later, in State v. 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 instruction both 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. (Emphasis added.) 

See also State v. Clark (Minn. 1980), 296 ~.~.2d 359, 368 n. 

7 (dictum) (fa-ilure to request Billstrom limiting instruction 

waives claim of error). 
We reach the same result here. To allow defense counsel to remain silent while a trial judge fails to admonish a 

jury i-s tantamount 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 it will introduce evidence of other crimes or acts, 

the remaining proced-ures become mandatory only upon defendant's objection and/or request. As the court did in 

For sman , 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 "other crimes 

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.s received 

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.nd may not be convicted for any 

offense except that charged. You are 

cautioned to weigh the evidence only for 

the limited purpose earlier stated." 

(Emphasis in original instruction.) 

This instruction, given as Court's No. 33, was based on 

defense counsel's Proposed Instruction No. 45, except that 

the second sentence was rewritten by the trial judge without 

objection by 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 introducing Annette 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 testimony before the jury in 

an unduly prejudicial way. 

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 criticizing Annette 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 rebut defendant's claims on the witness 

stand that he was a peace-loving, nonviolent man, was admissible under Rule 404(a) (l), Mont.R.Evid. 

WHETHER THE DEFENDANT WAS PROPERLY CONVICTED - OF NEGLIGENT 

HOMICIDE ? 

Defendant maintains that his 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 conform his 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 requirements of due process, presumably 
because of problems inherent in the negligent homicide 

statute. 

Initially, we note with respect to the propriety 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 

instructions pertaining to mitigated deliberate or negligent 

homicide. Defense counsel, however, convinced the trial 

judge to give instructions on these points. We are therefore 

disinclined to review arguments, however vague, on the propriety of negligent homicide law. Nevertheless, we think the 

statute and accompanying instructions quite 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, the defendant pictured himself as a concerned 

parent out to protect his interest in a child custody hearing. His actions at his former residence were 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 defendant was 

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 knew or should have known that he 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 himself 
when his alleged attacker was naked and. unarmed was 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 negligent homicide 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 competent evidence. There is no 

question that a bullet from Ken Stroud's weapon caused Curt 

Jacky's death. The only remaining question is whether 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 conclusion that defendant's negligent act 

"caused" Jacky's death. 

WHETHER DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT -- TO BEAR 

ARMS ? 

Defendant's position here is that he was acquitted of 

deliberate homicide and mitigated 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 

itself negligent. 
We agree with the State that defendant's argument is 

incredible. The argument is based not only on faulty assumptions concerning the jury's verdict, 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 a weapon was enough to constitute 

negligence. More importantly, the right to hear 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 THE DEFENDANT WAS PROPERLY SENTENCED? 

Defendant raises five objections to sentencing procedures in his case: (1) the sentence was for punishment 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 concerning any unusual or substantial duress suffered by 

defendant during the shooting incident; and (5) the trial 

judge's private meeting with the probation officer concerning 

the pre-sentence investigation report was 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's sentence 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 cites no 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 affecting a member of that group need only 

have a rational basis. Given the evidence produced 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 the meaning 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 still be 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 substantial duress, is not well-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. Because the judge was not disposed to give the minimum 

sentence, there is no chance that he would have given less 

than the minimum sentence. This case is similar to State v. 

Zampich (Mont. 1983), 667 P.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 for mitigated deliberate homicide. 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 case where the maximum 

sentence was 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 -.. 

Justices 
Mr. Justice John 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 jury did not find 

him guilty of deliberate or at least mitigated 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, I would grant his 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 jurors without a record outside the 

presence of counsel and defendant. While we have not yet 

decided whether -- voir dire examination of jurors is part of a 

criminal trial, it seems as much 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 dire by counsel, with all present. 

Second, it does not make judicial sense to state that 

under Just (184 Mont. 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 counsel does 

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 fair play 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 sf Mr. Justice Sheehy.