No. 13336 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - GARY LYNN BUCKLEY

# , Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert S. Keller, Judge presiding. Counsel of Record: For Appellant: Fennessey, Crocker & Harman, Libby, Montana David W. Harman argued, Libby, Montana Jean Ellison appeared, Libby, Montana Donald La Shaffer, Libby, Montana For Respondent: Robert LaWoodahl, Attorney General, Helena,

Montana Lon J. Maxwell argued, Assistant Attorney General,

Helena

# ,Montana William A. Douglas argued, County Attorney, Libby,

Montana

Submitted: October 12, 1976 Decided:

## DEC1 

## 51976 Filed: 

# DEC1.5 1946

### Mr. 

### Chief JusticeJames T. 

### Harrison delivered the Opinion of the Court. This is 

### an appeal from 

### a jury verdict of guilty, and sentence of 100 years in the stateprison of the district court, Lincoln County. The essential facts began inlateJune 1975 and culminated with the homicide of James A. 

### McIntyre on July 

### 4, 1975. McIntyre,

a newcomer toEureka, Montana, was working on a ranch inthe vicinity and staying atthe DeLong cabin near Glen Lake, with the consent of the owner. On July 3, 

### 1975, Gary Buckley also received permission from ~etong to stay athis cabin, 

### as he had done on another occasion. At

### this time Buckley was AWOL 

### from the United StatesMarine Corps. McIntyre was never informed that Buckley had obtained permission to stay atthe DeLong cabin and upon 

### returning to the cabin on July 

### 3, 1975, he was surprised tobe met by him. They introduced themselves and McIntyre left shortly thereafter. Believing Buckley tobe on the premises unlawfully, McIntyre and one Jay Allisonwent to the localpolice to inform them. That night McIntyre returned to the cabin with a Lincoln County sheriff's deputy inMcIntyre's truck. The deputy was dressed incivilian clothes and was armed atthe time. After failing tofind Buckley, the deputy and McIntyre left and rendezvoused with Allison and two other law enforcement officers. The officers returned toEureka, but McIntyre and Allison returned to the cabin, searched the area again, and according toBuckley, yelled threats directed athim, if he should be nearby, to stay away orhe would be harmed.Buckley stated he observed 

### allof these events from nearby where he was sleeping for thenight because he feared forhis lifeand believed Allison and McIntyre were out to get him, McIntyre being Allison's hired gun, as a result of a falling out between Allison and Buckley. The rest of the episode comes from Buckley through his statement given afterhis arrest and testimony attrial: On the afternoon of July 4, 1975, Buckley was reading a book in the DeLong cabinwhen he saw McIntyre's truck approach. The truck went slowly past the cabin, did not come into the driveway, and stopped 15 to 

### 20 yards past the cabin. Buckley, sensing danger,

rose from his chair, got his <.44magnum, and went to the door. As he went past the refrigerator, Buckley heard a noise behind him, outside the cabin. 

### Ashe turned, he saw McIntyre holding a rifle waist high. McIntyre leveled the rifleand shot atBuckley, missing him. Buckley firedback, and missed McIntyre. McIntyre began running tohis truck, and Buckley continued shooting, wounding McIntyre, knocking hin to the ground and causing him todrop the rifle. Buckley continued towalk toward McIntyre, who was lying 

### stillatthe time, and continued shooting, hittingMcIntyre two

more times and from less than seven and one-half feet away (as evidenced by powder burns). Finally, Buckley kneeled down and delivered the fatal shot toMcIntyre's head from less than a foot away. Buckley statedhe acted from "instinct"; was ina "subtle stateof mind1'; a "subconscious stateof mind"; and his action

was like the "wrath of God coming down on JimMcIntyre" ashe began shooting. He testified he shotMcIntyre in the head to put him out of hismisery. 

### -3-Buckley 

### was convicted of deliberate

### homici'de, and sentenced to 100 years inprison. On appeal defendant raises five issues for this Court's review: First 

### is the withdrawal of the instruction on mitigated deliberate homicide after itwas given to thejury. This occurred when thejury, afterretiring todeliberate, asked for further instruction on the meaning of "extreme mental or emotional stress". The district court judge withdrew the instruction and instructed thejury that only deliberate homicide should be considered by it. Second did the district court err in failing to dismiss the deliberatehomicide charge on defendant's motion at the close of trial. Third, defendant believes any statements made by him atthe suppressionhearing, concerning the voluntariness of his written statement, could not be used for impeachment by the state. Fourth 

### iswhether the district court erred in admitting pictures of the deceased over the defendant's objection of irrelevant, gruesome, and prejudicial. Fifth and finally, defendant questions the impartiality of thejury. He argues hismotion for a change of venue based upon pretrialpublicity about the defenses raised should have been granted. It was denied after individual voir dire of the jurors

as to their knowledge of the case and the defenses to be raised. Defendant also argues the entirepanel should have been dismissed because the district court informed thejurors before the individual voir dire that a change of venue could be 

### a frightful expense to the people of Lincoln County.First, defendant objected to the withdrawal of the instruction covering mitigated deliberate homicide on the grounds the state failed toobject to the mitigated deliberate homicide instruction, that as 

### a matter of law mitigated deliberate homicide should be considered as part of the case, and that otherwise the instructions were satisfactory for purposes of making a determination by thejury. The state and defendant agree State

### v. Thomas, 147Mont. 325, 413 P.2d 315, and State

### v. Taylor, 163Mont. 106, 515 P.2d 

### 695, set forth the 

### test tobe applied. Namely, the district court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the district court must only be whether ornot

### any evidence exists 

### in the record towarrant an instruction on mitigated deliberate homicide. Therefore, we determine if there was 

### any evidence of extreme mental or emotional stress on the part of defendant presented at

### trial. We find none. Defendant, himself, stated he

was not in shock but was ina "subtle state of mind, 

### a subconscious stateof mind.'' He did not excitedly begin to fireand continue in the same manner, but slowly and deliberately walked, not ran, towards McIntyre. Atthis time he statesMcIntyre was not struggling toregain control of his rifle, but was lying there incapacitated. Nevertheless, Buckley shot him twice more from close range, and then knelt down and delivered the fatal shot to the head, to "put him out of his misery." This testimony 

### is incredible. Defendant was not in extreme mental stress, but his actions were that of a slow, deliberate, calm, and cool killer. Thus, the district court was correct in finding therewas no evidence of extreme mental or emotional 

### stress. -5-As to the district court's withdrawal of an instruction, Statev. Jackson, 88 Mont. 420, 293 P. 309, sets out the proposition that it 

### is prejudicial error towithdraw a required instruction. As for an improperly given instruction, not required by law, we adopt the rationale of the Supreme Court of Hawaii inStatev. O'Keefe, 45 Haw.368, 367 P.2d 

### 91, 94, that a court has the power to, and may, correct errors in its instructions by withdrawing, explaining, or correcting them. This 

### is inaccord with the discretion granted a district court in instructing thejury after submission of the caseby section 95-1913, 

### R.C.M. 1947. Second, the district court did not err indenying defendant's motion to dismiss the deliberate homicide charge for insufficiency of the evidence. Section 95-1909(i), R.C.M. 1947, states: 

# "** *the court 

### may on 

### itsmotion or the motion of the defendant, dismiss the action

# **'*.It (Emphasis supplied). The statutedefinitely leaves this determination within the discretion of the district court, and 

### its action

### willnot be disturbed on appeal unless there isan abuse of that discretion. We find no such abuse of discretion, since the state introduced evidence which tended toprove allthe elements of deliberate homicide. The fact that some of that evidence could be interpreted to show mitigation does not taint the decision of the district court. The district court properly left it to thejury to decide whether the state's evidence was enough to prove its casebeyond

a reasonable doubt. Defendant sought tohave the district court weigh the evidence presented, which 

### iswithin the province of the jury, not the court.

### Third, defendant cites Simmons v. United States, 390 U.S. 377, 88 S,Ct. 967, 19 

### L ed 2d 1247, 1259,as authority that the prosecution cannot use defendant's testimony at a pretrial suppressionhearing to impeach the defendant's credibility. Simmons made no such ruling. It held: 

# "**

# * when a defendant testifies in support of a motion to suppress evidence on FourthAmendment grounds,his testimonymay nottkreafterbe 

### admitted against him at trial in the issue of guilt, unless he makes no obj 

### ection." (Emphasis supplied)

# . In Simmons the suppressionhearing testimonywas used in the prosecution's case-in-chiefto show ownership by the defendant of a suitcase containing incriminating evidence. In the instant case, the testimonywas used on cross-examination to attack defendant's credibility,by showing he testified before to an entirely different account of the July 4, 1975 homicide, implicating someone other than himself. Inno way did this address the guilt of defendant, in fact it spoke to another person committing the homicide. Only the credibility of the defendant

was attacked. Defendant argues this Court should not followHarris v. New York, 401U.S. 222, 91 S.Ct. 643, 28 

### L ed 2d 1,because that decision dealt with the Miranda right, and not the assertion of a constitutional right at the suppressionhearing, as in this

case. However, identical rationale, to guard against perjury,was followedby the United States Supreme Court inWalder v. United States, 347 U.S. 

### 62, 74 S.Ct. 354, 98

### L ed 503. There the Court allowed physical evidence (narcotics), unlawfully seized and inadmissible in the prosecution's case-in-chiefin another case against the same defendant, to be used on cross-examinationand introduced to impeach the defendant's direct examination testimony

# .

### Additionally, defendant argues his objection shouldhave been sustained at the suppression hearing because the crossexaminationwas outside the scope, and such was prejudicial error, since this testimonywas used at trial to impeachhim. A close examination of the transcript does not bear this out. The testimony used at trial for impeachment purposes was that given by defendant

on direct examination and examinationby the court,and not crossexamination. Fourth,defendant alleges pictures of the deceasedwere erroneously admitted. In Statev. Newman, 162Mont. 450,460, 513 P.2d 258 and State v. Bischert, 131Mont. 152, 159, 308 P.2d 969,the Court set foeth the rule of law. InNewman the Court stated:

11II~*

# ** photographs stand on the same footing as diagrams,maps, plans, and the like,and as a general rule,whenever relevant to describe a a 

### person, place, or thing, they are admissible for the purpose of explaining and applying the evidence and assisting the court and jury in understanding the case." "'Photographs that are calculated to arouse the sympathies or prejudices of the jury are properly excluded,particularly if they are not substantially necessary or instructive to show material facts or conditions. 20Am.Jur.,Evidence, 5 

### 729,p.609.'

11* 

# * *the fact the photographs could tend to arouse sympathy in the minds of the jurors is not the only&&minative 

### issue. the probative value of the photographs was never explained to the juryby the medical witness." InNewman the state's witnesses did not testify to the pictures except to lay the proper foundation through one witness, and then left alone. Suchwas not the case here. The probative value of the photographs was constantly explained to the jury throughout the trial. This was done (1) by the investigatingofficers to demonstrate what they found upon arriving at the scene; 

### (2) by the witnesses who located the body as towhere they found it and inwhat position itwas; 

### (3) by a medical witness to discuss the number of shots and the damage done; and 

### (4) by defendant himself. The probative value of these photographs

was extensively explained to the court and jury, and such far outweighed their prejudicial effect. We find no error. Finally, defendant contends a change of venue should have been granted due topretrial publicity and alternatively the entirepanel of jurors should have been dismissed because the district court commented to the jury on the economical effect

on the county if a change of venue occurred. The basis of defendant's motion was pretrial publicity in three newspapers, theMissoulian, the Daily Inter Lake, and the Western News, and a highly publicized poster circulated in the area which described defendant and asked for information as tohiswhereabouts due tohis alleged part in the homicide. As for the newspaper articles, the defense was concerned the jury panel members had been Cmpaneled since September and would find particular interest inany cases upon which they might 

### sit as jurors. Furthermore, one of the three articles described with particularity that the defenses of alibi, insanity, and selfdefense were going tobe used by the defense. Defendant contended that such informationwould cause thejurors tobelieve from the outset that defendant admitted the shooting, but was relying upon self-defense, which ineffect takes away the defense option of waiting to see the state's proof before raising selfdefense.

### However, the district court before seating the jurors performed an individual voir dire of eachjuror inchambers as tobias and knowledge of the case. Each juror seated stated he or she could render an impartial verdict based upon the evidence presented attrial. This procedure by the district court 

### is inaccordwith precedent setby this Court. State

v. Sheerin, 12Mont. 539, 31P. 

### 543; Statev. Byrne, 60 Mont. 317, 199 P. 262; Statev. Juhrey, 61Mont. 413, 202 

### P. 762; Statev. White, 151Mont. 151, 440 P.2d 269. We find

### no error. The judgment 

### is affirmed.

We Cancur: 

# L

Judge, kktting forMr. 

### Justice Wesley Castles.