No. 87-424 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, 

Plaintiff d% Respondent, 

-VSLESTER WILLIAM CRAZY BOY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Patrick F. Flaherty, Great Falls, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Betsy Brandborg, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Jeff McAllister, Deputy County Atty., Great Falls 

Submitted on Briefs: May 6, 1988 

Decided: June 21, 1988 

Filed: 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Lester William Crazy Boy (defendant) appeals from a 

Cascade County District Court order denying his motion for a 

new trial after his conviction for deliberate homicide. We 

affirm. 

On March 3, 1987, defendant attended a party at an 

apartment in Great Falls, Montana. At approximately 10:15 

p.m. that night, Jess Monty Cochran (Cochran) arrived at the 

apartment and asked where the women were. Another person 

present at the party, Xavier Ortiz, answered that defendant 

was the closest thing to a woman at the party to imply that 

defendant was homosexual. Cochran proceeded to assault 

defendant who was passed out in a sitting position on a 

couch. Defendant awakened and attempted to defend himself. 

The fight was broken up only to be resumed a few minutes 

later. Cochran apparently had an aversion for homosexuals 

and continued to badger and insult defendant during the 

evening. 

The suggestion was made that the two men take their 

fight outside. Cochran went to the front door and waited for 

defendant. Defendant went to the kitchen and selected a 

five-inch serrated kitchen knife. Defendant then approached 

Cochran while Cochran's back was turned. Defendant grabbed 

Cochran, turned him around, said "nobody calls me a . . . queer," and proceeded to stab Cochran. Cochran died the next 

day of a severed renal vein. 

Defendant was charged by information on March 5, 1987, 

with deliberate homicide pursuant to .§ 45-5-102 (1) (a) , MCA, 

for the stabbing death of Jess Cochran. A jury convicted 

defendant of deliberate homicide on July 9, 1987. On August 

26, 1987, the District Court heard arguments on defendant's 

motion for a new trial and denied the motion on the same day. 
Defendant appeals from the order denying his motion for a new 

trial and raises the following issues: 

1. Is there substantial evidence in the record to 

support a conviction for the crime of deliberate homicide? 

2. Did the District Court err in excluding evidence 

regarding the nature of the apartment where the stabbing took 

place, demonstrative evidence of defendant's fighting 

abilities, and evidence of the victim's prior violent acts? 

3. Was the jury properly instructed on the law of 

circumstantial evidence, self-defense, and the duty to 

retreat? 

4. Is defendant entitled to a new trial on the basis 

of jury misconduct? 

The standard of review here is whether the evidence, 

when viewed in a light most favorable to the State, is 

sufficient for a rational trier of fact to have found the 

essential elements of the crime beyond a reasonable doubt. 

State v. Gilpin (Mont. 1988), P.2d , 45 St.Rep. 863, 

873; State v. Tome (Mont. 19871, 742 P.2d 479, 481, 44 

St.Rep. 1629, 1630; State v. Geyman (Mont. 19861, 729 P.2d 

475, 476, 43 St.Rep. 2125, 2126. We have reviewed the record 

and conclude that there is substantial evidence which 

satisfies the required standard of review. 

Defendant was convicted of deliberate homicide pursuant 

to $ 45-5-102 (1) (a) , MCA, which provides that " [a] person 

commits the offense of deliberate homicide if . . . he 

purposely or knowingly causes the death of another human 

being. " Defendant contends that the evidence can only 

support an acquittal based on the defense of justifiable use 

of force. Defendant urges this Court to review the testimony 

of certain eyewitnesses to the crime to conclude that the 

jury was mistaken in finding him guilty. It was the jury's 

prerogative to accept or reject defendant's claims of self 
defense in this case. State v. Van Hael (1983), 207 Mont. 

162, 166-167, 675 P.2d 79, 81-82. When confronted with two 

versions of the incident in question, one version which 

supports acquittal and another which supports a conviction, 

the jury must determine which version is reasonable. Cf. 

Tome, 742 P.2d at 481. In addition to defendant's alleged 

evidence, the jury was also presented with evidence that 

defendant, instead of remaining in the kitchen, selected a 

five-inch knife, approached an unarmed Cochran from behind, 

and stabbed him several times. A reasonable trier of fact 

could have concluded from the evidence that defendant was 

guilty of deliberate homicide. 

Defendant next contends that the District Court erred 

in making certain evidentiary rulings. The first contested 

evidentiary ruling concerns testimony regarding the nature of 

the apartment complex in which the crime occurred. Defendant 

sought to solicit testimony from several witnesses which 

tended to show that the apartment complex was "condemned, 

filthy, substandard, and a dangerous hovel." This evidence, 

defendant asserts, is relevant to support an inference that 

he was placed in fear of bodily injury because dangerous 

surroundings can "magnify the fear of the victim 

[defendant]." Defendant does not cite any legal authority to 

support this assertion. 

It is within the discretion of the District Court to 

rule on the admissibility of evidence and we will not disturb 

the District Court's ruling unless there was an abuse of that 

discretion. State v. Breitenstein (1979), 180 Mont. 503, 

509, 591 P.2d 233, 236. The State contends that the offered 

evidence concerning the apartment complex is not relevant to 

any issue in this case. We agree. Evidence of the history 

of the apartment complex is not relevant as to whether 

defendant knowingly or purposely committed deliberate 
homicide nor is the evidence relevant to his claim of self 

defense. Rules 401, 402, M.R.Evid. We hold that the 

District Court did not abuse its discretion and properly 

excluded the evidence in question. 

Defendant also believes that the District Court should 

have allowed him to give the jury a demonstration as to "how 

he punches like a woman, blocks like a sissy and why a knife 

was an appropriate choice [to equalize Cochran's fighting 

prowess]." Defendant argues that this evidence tends to show 

that he could not defend himself without the use of a weapon. 

The District Court refused to allow a "side show" of 

defendant's ability to defend himself. The State points out 

that the record contains ample evidence of defendant's 

fighting abilities and argues that the District Court did not 

err in prohibiting actual physical demonstrations. We agree. 

The demonstrative evidence in question was cumulative and its 

exclusion does not constitute reversible error. Rule 403, 

M.R.Evid.; State v. Short (Mont. 1985), 702 P.2d 979, 983, 42 

St.Rep. 1026, 1031. 

Defendant next contends that the District Court should 

have allowed him to introduce evidence of Cochran's prior 

violent acts. The District Court ruled that such evidence 

was admissible only if defendant was aware of Cochran's 

violent propensities at the time of the crime. No objection 

was made to the District Court's ruling on this matter at the 

time of trial. Defendant concedes that he was unaware of 

Cochran's violent history and that such evidence is 

inadmissible, but urges this Court to adopt a new rule. We 

need not address defendant's request that we adopt a new rule 

of law on this issue because we will not address an issue 

raised for the first time on appeal. Gilpin, P.2d at 

, 45 St.Rep. at 876. 
Defendant's third contention of error deals with the 

District Court's refusal to give four jury instructions. 

Defendant offered a jury instruction regarding the effect of 

circumstantial evidence which the District Court refused on 

the grounds that the instruction could only be given in a 

case based solely on circumstantial evidence. The offered 

jury instruction in question contained the followi-ng relevant 

language : 

[Ilf the jury after careful and impartial 

consideration of all the evidence in the 

case, has a reasonable doubt that a 

defendant is guilty of the charge, it 

must acquit. If the jury views the 

evidence in the case as reasonably 

permitting either of the two 

conclusions -- one of innocence, the 

other of guilt -- the jury should of 

course adopt the conclusion of innocence. 

Defendant argues that the above portion of the instruction 

was necessary because he "was in an alcoholic blackout on the 

night in question and had no ability to recall and testify to 

his state of mind and the reasonableness of his actions." 

Defendant asserts that his subjective state of mind can 

only be judged by direct eyewitness testimony. It is exactly 

the direct evidentiary nature of this eyewitness testimony 

which serves to defeat defendant's claim for his offered 

instruction. State v. Ryan (Mont. 1987), 744 P.2d 1242, 

1244, 44 St.Rep. 1735, 1737. This case was based solely on 

direct evidence. The eyewitnesses testified as to the events 

surrounding the crime. Defendant's offered instruction is 

proper where the State's case rests substantially or entirely 

on circumstantial evidence. State v. Stever (Mont. 1987), 

732 P.2d 853, 859-60, 44 St.Rep. 283, 291. 

Defendant also makes a passing argument that the 

District Court erred in refusing to instruct the jury on the 

State's burden of proof, self-defense, and the duty to 
retreat. The District Court refused several of defendant's 

offered instructions on the grounds that the instructions 

were incorrect statements of the law and/or that other given 

instructions sufficiently covered relevant legal theories. 

The State directs our attention to the jury instructions 

given in this case to argue that it is not error for the 

District Court to refuse an instruction that is adequately 

covered by the instructions that were given as long as the 

rights of the defendant were fully protected. We have 

reviewed the instructions given and refused and agree with 

the State that the District Court did not err in instructing 

the jury. State v. Sunday (1980), 187 Mont. 292, 609 P.2d 

1188. 

Defendant's final contention of error is that the 

District Court should have granted a new trial because a 

juror allegedly read a July 9, 1987, article in the Great 

Falls Tribune newspaper which contained the following: 

Deputy County Attorney, Steve Hagerman, 

who with colleague Jeff McAllister is 

prosecuting Crazy Boy told McCarvel "the 

evidence is replete he has resorted to 

fisticuffs in the past, and to knives.'' 

He mentioned instances from past reports 

that Crazy Boy hit another man with a 

beer bottle, and was arrested for 

misdemeanor assault after waiving a 

knife. 

In support of defendant's motion for a new trial, defendant's 

attorney submitted an affidavit from his secretary in which 

she claims to have heard a juror admit to reading the 

newspaper and articles about the trial during trial. 

Section 25-11-102 (2) , MCA, provides the following 

language pertinent to this issue: 

The former verdict or other decision may 

be vacated and a new trial granted on the 

application of the party aggrieved for 

any of the following causes materially 
affecting the substantial rights of such 

party: 

(2) misconduct of the jury. Whenever 

any one or more of the jurors have been 

induced to assent to any general or 

special verdict or to a finding on any 

general or special verdict or to a 

finding on any question submitted to them 

by the court by a resort to the 

determination of chance, such misconduct 

may be proved by the affidavit of any one 

of the jurors. 

In light of the above statute, defendant's argument must fail 

for two reasons. First, defendant has not identified the 

juror nor has he submitted an affidavit from that juror. 

Second, defendant has failed to show that the juror was 

induced to assent to the verdict in this case or that any of 

defendant's rights have been materially affected. In short, 

defendant has shown no prejudice and the District Court did 

not err in denying his motion for a new trial. 

Affirmed. 

We concur: