No. 13336 

IN THE 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 La Woodahl, 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 : DEC 1 5 1976 

Filed : DEC 1.5 1946 
Mr. Chief Justice James 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 state prison of the district court, 

Lincoln County. 

The essential facts began in late June 1975 and culminated 

with the homicide of James A. McIntyre on July 4, 1975. McIntyre, 

a newcomer to Eureka, Montana, was working on a ranch in the 

vicinity and staying at the DeLong cabin near Glen Lake, with the 

consent of the owner. On July 3, 1975, Gary Buckley also received 

permission from ~etong to stay at his cabin, as he had done on 

another occasion. At this time Buckley was AWOL from the United 

States Marine Corps. McIntyre was never informed that Buckley 

had obtained permission to stay at the DeLong cabin and upon returning to the cabin on July 3, 1975, he was surprised to be met 

by him. They introduced themselves and McIntyre left shortly 

thereafter. Believing Buckley to be on the premises unlawfully, 

McIntyre and one Jay Allison went to the local police to inform 

them. That night McIntyre returned to the cabin with a Lincoln 

County sheriff's deputy in McIntyre's truck. The deputy was 

dressed in civilian clothes and was armed at the time. After 

failing to find Buckley, the deputy and McIntyre left and 

rendezvoused with Allison and two other law enforcement officers. 

The officers returned to Eureka, but McIntyre and Allison returned 

to the cabin, searched the area again, and according to Buckley, 

yelled threats directed at him, if he should be nearby, to stay 

away or he would be harmed. 
Buckley stated he observed all of these events from nearby 

where he was sleeping for the night because he feared for his 

life and 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 after his arrest and testimony at trial: 

On the afternoon of July 4, 1975, Buckley was reading a 

book in the DeLong cabin when 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 <.44 magnum, and went to the door. As 

he went past the refrigerator, Buckley heard a noise behind him, 

outside the cabin. As he turned, he saw McIntyre holding a rifle 

waist high. McIntyre leveled the rifle and shot at Buckley, missing 

him. Buckley fired back, and missed McIntyre. McIntyre began 

running to his truck, and Buckley continued shooting, wounding 

McIntyre, knocking hin to the ground and causing him to drop the 

rifle. Buckley continued to walk toward McIntyre, who was lying 

still at the time, and continued shooting, hitting McIntyre 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 to McIntyre's head from less than a foot 

away. 

Buckley stated he acted from "instinct"; was in a "subtle 

state of mind1'; a "subconscious state of mind"; and his action 

was like the "wrath of God coming down on Jim McIntyre" as he began 

shooting. He testified he shot McIntyre in the head to put him out 

of his misery. 

-3- 
Buckley was convicted of deliberate homici'de, and 

sentenced to 100 years in prison. On appeal defendant raises 

five issues for this Court's review: 

First is the withdrawal of the instruction on mitigated 

deliberate homicide after it was given to the jury. This occurred 

when the jury, after retiring to deliberate, asked for further 

instruction on the meaning of "extreme mental or emotional stress". 

The district court judge withdrew the instruction and instructed 

the jury that only deliberate homicide should be considered by it. 

Second did the district court err in failing to dismiss 

the deliberate homicide charge on defendant's motion at the close 

of trial. 

Third, defendant believes any statements made by him 

at the suppression hearing, concerning the voluntariness of his 

written statement, could not be used for impeachment by the state. 

Fourth is whether 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 

the jury. He argues his motion for a change of venue based upon 

pretrial publicity 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 entire panel should have been dismissed 

because the district court informed the jurors 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 to object 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 the jury. 

The state and defendant agree State v. Thomas, 147 Mont. 

325, 413 P.2d 315, and State v. Taylor, 163 Mont. 106, 515 P.2d 695, 

set forth the test to be 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 or not any evidence exists in the record to warrant 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 in a "subtle state of mind, a subconscious 

state of mind.'' He did not excitedly begin to fire and continue 

in the same manner, but slowly and deliberately walked, not ran, 

towards McIntyre. At this time he states McIntyre was not 

struggling to regain 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 there was no evidence 

of extreme mental or emotional stress. 

-5- 
As to the district court's withdrawal of an instruction, 

State v. Jackson, 88 Mont. 420, 293 P. 309, sets out the proposition 

that it is prejudicial error to withdraw a required instruction. 

As for an improperly given instruction, not required by law, we 

adopt the rationale of the Supreme Court of Hawaii in State v. 

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 in accord with the discretion 

granted a district court in instructing the jury after submission 

of the case by section 95-1913, R.C.M. 1947. 

Second, the district court did not err in denying 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 its motion or the motion 

of the defendant, dismiss the action * *' *.It 

(Emphasis supplied). 

The statute definitely leaves this determination within the 

discretion of the district court, and its action will not be disturbed on appeal unless there is an abuse of that discretion. 

We find no such abuse of discretion, since the state introduced 

evidence which tended to prove all the 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 the jury to decide 

whether the state's evidence was enough to prove its case beyond 

a reasonable doubt. Defendant sought to have the district court 

weigh the evidence presented, which is within 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 suppression hearing 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 Fourth Amendment 

grounds, his testimony may nottkreafter be admitted 

against him at trial in the issue of guilt, unless 

he makes no ob j ec tion." (Emphasis supplied) . 

In Simmons the suppression hearing testimony was used 

in the prosecution's case-in-chief to show ownership by the 

defendant of a suitcase containing incriminating evidence. In 

the instant case, the testimony was 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. In no 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 follow Harris v. 

New York, 401 U.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 suppression hearing, as in this 

case. However, identical rationale, to guard against perjury, was 

followed by the United States Supreme Court in Walder 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-chief in another case 

against the same defendant, to be used on cross-examination and 

introduced to impeach the defendant' s direct examination testimony . 
Additionally, defendant argues his objection should have 

been sustained at the suppression hearing because the crossexamination was outside the scope, and such was prejudicial error, 

since this testimony was used at trial to impeach him. 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 examination by the court, and not crossexamination. 

Fourth, defendant alleges pictures of the deceased were 

erroneously admitted. In State v. Newman, 162 Mont. 450, 460, 513 

P.2d 258 and State v. Bischert, 131 Mont. 152, 159, 308 P.2d 

969, the Court set foeth the rule of law. In Newman the Court 

stated: 

11 II~* * * 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. 20 Am.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 jury by the medical witness." 

In Newman the state's witnesses did not testify to the 

pictures except to lay the proper foundation through one witness, 

and then left alone. Such was 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 investigating 
officers to demonstrate what they found upon arriving at the scene; 

(2) by the witnesses who located the body as to where they found 

it and in what position it was; (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 to pretrial publicity and alternatively the 

entire panel 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, the Missoulian, 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 

to his whereabouts due to his 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 in any 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 to be used by the defense. Defendant contended that such information would cause the jurors to believe 

from the outset that defendant admitted the shooting, but was 

relying upon self-defense, which in effect 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 each juror in chambers as 

to bias and knowledge of the case. Each juror seated stated 

he or she could render an impartial verdict based upon the 

evidence presented at trial. This procedure by the district 

court is in accord with precedent set by this Court. State 

v. Sheerin, 12 Mont. 539, 31 P. 543; State v. Byrne, 60 Mont. 317, 

199 P. 262; State v. Juhrey, 61Mont. 413, 202 P. 762; State v. 

White, 151 Mont. 151, 440 P.2d 269. We find no error. 

The judgment is affirmed. 

We Cancur: L 

Judge, kktting for Mr. Justice 

Wesley Castles.