No. 93-086

IN THE~SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vDONALD BARRACK, (-J-J 1 a 19%

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed P. McLean, Judge presiding.

COUNSEL OF RECORD.:

For Appellant:

J. Dirk Beccari and Marcia M. Jacobson, Public

Defender Office, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Carol

Schmidt, Assistant Attorney General: Robert L.

Deschamps, III, Missoula County Attorney, Fred Van

Valkenburg, Deputy Missoula County Attorney

Filed:

Submitted on Briefs: July 6, 1994

De‘cided: October 13, 1994
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court,

Missoula County, jury verdict finding Donald Barrack, guilty of

aggravated assault, and from the accompanying judgment filed on

August 21, 1992. We affirm.

The following are issues on appeal:

I. Did the District Court err in treating Barrack's motion for

a new trial as a petition for post-conviction relief under a writ

of coram nobis?

II. Did the District Court err when it denied Barrack's motion

for a new trial based upon insufficient evidence to support the

jury verdict?

III. Did the District Court err when it denied Barrack's

motion for a new trial based upon his "excusable mistake" in

failing to subpoena hospital records containing the victim's blood

alcohol content?

FACTUAL BACKGROUND

The defendant/appellant, Donald Barrack (Barrack), was living

in a trailer at 4625 Graham, Westview Trailer Court in Missoula,

Montana, with Robert Cole (Cole), whom Barrack worked with at the

Mahlum Ace Hardware Store in Missoula. Robert Cole owned the

trailer with his wife, Joan Cole (Joan), from whom he had separated

in August of 1991. Joan and Cole decided to sell the trailer

during January and February of 1992, and they were able to find a

buyer. The buyer wanted to move into the trailer within a week of

closing.

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This was a problem because Barrack was still living in the

trailer. Cole also still lived there 'lon and off" but he spent a

great deal of time at the home of Sue Llewellyn (Sue), who was his

fiancee. At the time of the sale of the trailer, he was in the

process of moving into her home.

Joan and Cole met with Barrack on February 13, 1992, to inform

him that the trailer had been sold and he would have to vacate the

trailer in a very short time. Cole and Barrack "finally worked it

out," ending their negotiations with a signed note stating that

Barrack would vacate the trailer around February 20. They then

went to two taverns in town, spent about two hours together and

drank a few beers. Barrack left the second tavern, Mulligan's, but

Cole stayed with another friend and continued drinking.

At some point later in the evening, Cole and his friend,

Marty, went to a tavern in Marty's neighborhood. A fight started

at the neighborhood tavern, the police were called to end the

altercation, and they took Cole and,Marty to Marty's house because

the two men were not able to drive. When Cole arrived at Marty's

house, he called Sue to come and get him. Sue arrived at Marty's

house, retrieved Cole and as they were driving to Sue's house, they

started to discuss whether Barrack had left the trailer. Sue

wanted to make sure that Barrack was either packing or had moved

out so she drove to the trailer.

Testimony after that point in time is contradictory. Cole

testified that when they arrived at the trailer, they went to the

front door, knocked loudly, heard no answer, went to the back door,

3
knocked, heard no answer, and tried the front door one more time.

The two went to the car, discussed the issue for a while, Cole

tired of the discussion, and he walked away. Cole also testified

that while the two were going from door to door, they were yelling,

screaming and making loud noises. He further testified that the

porch light and a yard light were on, as well as a light under the

hood of the stove in the kitchen.

Cole stated that when he walked away, Sue got back in the car,

pulled out of the driveway, stopped and pulled back into the

driveway. He decided to return to the ca'r, walked back to where it

was parked and as he came around the car, he saw Barrack standing

near the car, holding a gun and Sue laying by the car.

Sue testified that she was taking care of Cole and Joan's

child on the evening of February 13, 1992, because Cole was out

celebrating his friend, Marty's birthday. She stated that he

called her from Marty's house later in the evening for a ride and

they discussed the situation with Barrack and the trailer as she

was driving. She testified that they drove to the trailer, both

walked to the front door, knocked hard, received no answer, went to

the back door to knock, and then returned to the front door. She

testified that she was yelling at Cole at the time and there were

outside lights on but none inside as far as she could see. After

they received no response, the two walked back to the car,

continued to fight and then Cole started to walk away.

Sue got in the car in an attempt to follow him, changed her

mind, turned the car off, and went back to the front door. The

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door was locked so she kicked the door as hard as she could. on

the third try, she kicked the door open, took a step inside the

door, then she saw a flash, and felt a bullet enter her chest.

Mike Davenport, a trailer park neighbor, testified that at

about lo:15 or lo:20 on the evening in question, he heard a loud

banging and noise. He went to his door and looked outside in the

direction of the pounding. He saw a woman hollering, screaming and

pounding on the door. He said he could not see any lights on at

the house nor was there a light on the porch. He stated that he

could just see one person, a woman, pounding on the door and

yelling. She could not get inside so she returned to the car, and

tried to get the person in the car to help her get into the

trailer. She had a fight with the person in the car until the

other person left and started walking down the street. Davenport

then saw the woman get into the driver's side of the car, start the

engine, start to leave, pause and return to the trailer. At that

point, he went to get dressed, and while he was returning to where

he had been watching the events of the night, he heard a loud,

high-pitched crack. He testified that when he got to the door, he

looked out and saw the woman walking, leaning over a bit, to the

rear of her car. She was looking up the street toward where the

person who left the car had walked and ultimately, she collapsed.

At that point, Mike Davenport called 911 and reported the incident.

Barrack testified that he discussed the move from the trailer

on February 13, 1992, with Cole and Joan. After Joan left, Cole

and Barrack came to an agreement that Barrack would move to another

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place within a week. At a later point in time, the two men went to

a tavern called Joker's Wild for a few beers. The two then met

with Cole's friend, Marty, to celebrate Marty's birthday and the

three drank beer at a tavern called Mulligan's. Barrack left that

tavern after drinking.1 l/2 beers, ordered some takeout food ,from

a restaurant, went home, ate, watched television and went to sleep.

He stated that he went to bed around 8:30 to 9:O0.

Barrack further testified that he had been asleep for some

time when he thought he heard knocking at the back door, "more of

a feeling of something striking the trailer than I had heard, but

I thought I heard a knock," and he went to the back door. He

further reported that he did not put on his glasses because he was

not sure that he had heard or felt something, he thought perhaps it

was a gust of wind rocking the trailer. He did not hear anything

at the back door so he returned toward the bedroom and as he was

proceeding, he heard a loud crash which physically rocked the

trailer.

He stated that he grabbed his pistol because of the violence

of the repeated crashing that followed. He went to the front of

the trailer, still listening to the banging, which was "exceedingly

violent and rapid." He asked, "Who is it?" and received no

response. He repeated his question, then stated, "[d]on't kick the

door in, I'm armed." Barrack heard kicking at the door, the door

flew open, he backed up, saw a large human form, unidentifiable,

rush through the door and then he recalls the "muzzle flash when

the gun went off."
PROCEDURAL BACKGROUND

On February 21, 1992, a deputy county attorney of Missoula

County filed an affidavit and motion for leave to file an

information on Donald Barrack, charging him with committing the

offense of aggravated assault, a felony, pursuant to F, 45-5-202(l),

MCA. The motion was granted on that same day and on March 4, 1992,

Barrack was arraigned and pled "not guilty." Trial in the matter

commenced on June 29, 1992, and a jury found Barrack guilty of the

offense of aggravated assault on June 30, 1992.

On August 5, 1992, Barrack's motion for a new trial was heard

and sentence was pronounced against him. He was sentenced to

Montana State Prison for 10 years, with all but two years

suspended. The final judgment of the court was filed on August 21,

1992, confirming Barrack's sentence of 10 years in prison with all

but two years suspended. Later that same day, the District Court

filed an order amending the judgment, suspending the entire prison

term under certain conditions.

Barrack filed a written motion for a new trial on August 26,

1992. A hearing on the motion for a new trial was held on December

1’5, and on December 17, 1992, an opinion and order was filed,

stating that at an October 14, 1992, post trial hearing, "the Court

informed the parties that it [would] treat the Defendant's Motion

for New Trial as a Petition for Post Conviction Relief under a Writ

of Coram Nobis pursuant to § 46-21-101(l), MCA." The District

Court denied the motion for a new trial (petition for postconviction relief) on the issues of the sufficiency of the evidence

7
and the alleged failure of the State to provide medical reports on

the victim's blood alcohol content at the time of the incident.

Barrack appealed to this Court on January 5, 1993.

STANDARD OF REVIEW

The standard of review for denial of post-conviction relief is

whether substantial evidence will support the findings and

conclusions of the district court. Walker v. State (1993), 261

~Mont. 1, 6, 862 P.2d 1, 4.

I . POST-CONVICTION RELIEF

Barrack makes two arguments regarding his motion for a new

trial - 1) there was insufficient evidence to support the jury's

verdict and 2) the State's alleged failure to provide Barrack with

the test results of the victim's blood alcohol content on the night

of the incident. However, before deciding those issues, we take

this opportunity to clarify the District Court's treatment of

Barrack's motion for a new trial as a petition for post-conviction

relief. In its opinion and order, dated December 17, 1992, the

District Court stated that it would treat the motion for a new

trial as a petition for post-conviction relief under a writ of

coram nobis, pursuant to § 46-21-101(l), MCA.

However, a writ of coram nobis is no longer available as a

remedy for post-conviction relief. Section 46-21-101(l), MCA,

provides as follows:

when validity of sentence may be challenged. (1) A

person adjudged guilty of an offense in a court of record

who has no adequate remedy of appeal and who claims that

a sentence was imposed in violation of the constitution

or the laws of this state or the constitution of the

United States, that the court was without jurisdiction to

8 /
impose the sentence, that a suspended or deferred

sentence was improperly revoked, or that the sentence was

in excess of the maximum authorized by law or is

otherwise subject to collateral attack upon any ground of

alleged error available under a writ of habeas corpus,

writ of coram nobis, or other common law or statutory

remedy may petition the court that imposed the sentence

or the supreme court to vacate, set aside, or correct the

sentence or revocation order.

"The post-conviction hearing statutes are an attempt by the

legislature to consolidate all of the common-law statutory remedies

normally available to challenge a sentence." In re McNair (1980),

189 Mont. 321, 323, 615 P.2d 916, 917. While the Constitution of

Montana (Art. II, Sec. 19) and Title 46, Chapter 22, Parts 1

through 3 of the Montana Code Annotated, provide for separate

habeas corpus proceedings, Montana law does not provide for a

separate writ of coram nobis.

The State argues that Barrack's motion for a new trial was

untimely, should have been denied, and that it was improper to

treat the motion as a petition for post-conviction relief. Barrack

was found guilty of aggravated assault on June 30, 1992. According

to 5 46-16-702(2), MCA, a motion for a new trial must be in writing

and filed by the defendant within 30 days following a finding of

guilty. The State points out Barrack's written motion for a new

trial was not filed until August 26, 1992. Therefore, Barrack's

motion for a new trial was untimely because it was not filed within

30 days of the verdict and for this reason, the State contends,

Barrack's motion should have been summarily denied.

Barrack's motion for a new trial was indeed, untimely.

However, under Rule 5, M.R. App. P., he could have filed an appeal

9
within 60 days of the judgment., The judgment in the instant case

was filed on August 21, 1992; the last day for Barrack to appeal

his case would have been October 21, 1992. nowever, at a posttrial hearing on October 14, the District Court informed Barrack

that it would treat his motion for a new trial as a petition for

post-conviction relief. At this point in time, Barrack still could

have appealed his case. However, the District Court's decision to

treat the motion as a petition for post-conviction relief may have

effectively curtailed any attempt Barrack may have made to appeal

within the remaining statutory time limit.

Even though Barrack was possibly lulled into inaction as far

as appealing during the statutory time limit, he must still be

allowed an opportunity to seek review of his case before this

Court. In Fitzpatrick v. State (1983), 206 Mont. 205, 210-211, 671

P.2d 1, 4, in discussing § 46-21-101, MCA, the post-conviction

relief statute, we stated that:

The first element of the test which a petitioner

must satisfy is that petitioner be "adjudged guilty of an

offense in a court of record who has no adequate remedy

of appeal..." This phrase does not mean that a

petitioner may avail him or herself of the appellate

review process, and, when the results are unfavorable,

utilize the post-conviction review procedure to, in

effect, file numerous and successive '1appeals.1' The

language of the statute for part one of the test clearly

intends this form of relief to be available to convicted

persons who have not had their sentences reviewed by the

appellate court. It is clearly an abuse of the relief

procedure to withhold issues which could and should have

properly been raised on appeal...."

In the instant case, Barrack did not have an opportunity to

avail himself of the appellate review process because of the

District Court's treatment of his untimely motion for new trial as

10
a petition for post-conviction relief. He effectively did not have

an opportunity to properly raise issues on appeal. Moreover,

[a]buse of process occurs where an applicant raises

in post-conviction proceedings a factual or legal

contention which the petitioner deliberately or

inexcusably failed to raise in the proceedings leading to

conviction, or having raised the contention in the court,

failed to pursue the matter on appeal.

McKenzie v. Osborne (1981), 195 Mont. 26, 34, 640 P.2d 368, 373.

Barrack did not deliberately or inexcusably fail to pursue the

matter on appeal because he was unintentionally misled by the

District Court, thereby failing to appeal within the proper time

period. The abuse of the post-conviction relief process is not a

concern in this case because there is no evidence that Barrack

intentionallv failed to appeal or failed to exercise due diligence

in seeking review of the legal issues raised.

The District Court erred in treating Barrack's untimely motion

for a new trial as a petition for post-conviction relief under §

46-21-101(l), MCA, and as a writ of coram nobis. Nevertheless,

because the District Court possibly lulled the defendant into a

position where he did not timely pursue his appeal rights, we will

affirm the District Court's decision to rule on the merits of

Barrack's untimely motion for new trial.

In doing so we wish to emphasize, however, that our decision

here is not in any way to be read as enlarging the scope of postconviction relief or as diminishing a defendant's obligation to

timely file a motion for a new trial and a petition for postconviction relief or appeal in accordance with the applicable

statutes. The circumstances of this case are unique.

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II. INSUFFICIENCY OF THE EVIDENCE

"The standard of review of the sufficiency of the evidence is

whether, after reviewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt." State

v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

Barrack argues that there was insufficient evidence to support

the jury's verdict of guilty of aggravated assault. He contends

that:

Ms. Llewellyn's appearance and demeanor on the

witness stand were very sympathetic. No hint emerged of

her intoxicated and irrational rage on the night in

question. The defense believes that Mr. Barrack was

convicted because the jury's emotions were inflamed by

the idea of a former law enforcement officer shooting a

woman they perceived as someone he should have recognized

under any circumstance.

Finally, Barrack claims that he was the victim, not the aggressor,

and that he was acting in self-defense. At trial, he pled the

affirmative defense of justifiable use of force. Although Barrack

argues there was insufficient evidence to support his conviction,

[t]he fact that the defendant's testimony conflicted

with that of the State's witnesses does not, by itself,

render the evidence insufficient to support his

conviction. The weight of the evidence and the

credibility of the witnesses are exclusively within the

province of the trier of fact; when the evidence

conflicts, the trier of fact determines which shall

prevail.

-IBower 833 P.2d at 1111. Moreover, in determining whether the use

of force was justified, "[t]he mere fact that defendant testified

to a self-defense claim does not entitle him to an acquittal;" the

trier of fact must weigh the testimony and decide whether Barrack

12
acted with the belief that the use of force was necessary and his

belief was reasonable. Bower, 833 P.2d at 1111. In eseence, the

jury must determine whether the defendant was justified in his use

of force when Sue entered the trailer on the evening in question.

In the instant case, the jury weighed the evidence, assessed

the credibility of the witnesses and determined that the State's

witnesses were more credible. They determined that Barrack was not

justified in his use of force against Sue Llewellyn and that he was

guilty of aggravated assault. As stated above, the fact that the

defendant's testimony conflicts with the State's witnesses does not

render the evidence insufficient to support a conviction. Here,

the jury's verdict is sufficiently supported by the evidence.

There was testimony that there was adequate lighting for a

person inside the trailer to see anyone outside knocking on the

doors. Both Sue and Cole testified that Barrack knew Sue well

enough to recognize her if he saw her. Moreover, there was

testimony that there was enough noise, with the knocking and other

sounds being made, that a person inside the house would have heard

that there were people outside the trailer. Sue testified that

Barrack did not ask 'I [w ho are ] you?" nor did she hear anyone say

"I'm armed, [d]onYt come in here," or warn her at all when she was

entering the trailer. She testified that she did not feel that

there was anyone in the trailer at the time she entered.

"The [trier of fact] is not bound to blindly accept

defendant's version of the facts. It is free to pick and choose

the evidence it wishes to believe." Bower, 833 P.2d at 1111,

13
citing State v. Sorenson (1980), 190 Mont. 155, 170, 619 P.2d 1185,

1194. Here, the jury chose to believe the State and, as stated

above, there is sufficient evidence to support the jury's verdict.

The District Court did not err in denying Barrack post-conviction

relief based on his claim that there was insufficient evidence to

support the jury's verdict.

III. BLOOD ALCOHOL REPORT

Barrack argues that defense counsel was relying on a longstanding course of conduct with the State when it failed to

subpoena records of Sue's blood alcohol content for use during the

trial. He asserts that his error in failing to discover her blood

test is excusable because in the past, the State routinely provided

law enforcement reports, including blood test results, upon request

by the defense attorneys. Barrack's attorney had requested results

from the State and the Sheriff's Office but did not receive them so

he was led to believe that there were no test results. The

attorney did not realize there were blood test results until he

subpoenaed them on August 4, 1992, in preparation for sentencing.

The State contends that Barrack wanted the State to conduct

his own discovery for him. It also states that it did not subpoena

the blood alcohol records at any time nor did it use any

information regarding the blood alcohol content of the victim at

trial.

A hearing was held on the issue of the blood alcohol results

on December 16, 1992, in which defense counsel testified that he

had asked Lt. Brannin and Mr. Van Valkenburg, a deputy county

14
.

attorney, for blood alcohol reports. Counsel stated that Lt.

Brannin told him he did not think that there was a blood alcohol

test because she was a Jehovah's Witness. Further, counsel stated

that although available from St. Patrick's Hospital, he did not

receive a copy of the blood alcohol results until he subpoenaed

them for sentencing purposes. He argued at the hearing that if he

had known that he was not going to get them through the sheriff's

office, he would have gotten them on his own, but he was led to

believe that none existed because he had never had a "problem in

getting anything from the sheriff's department or county attorney's

office in the past, and I think it was just a mistake that they

missed it...."

When Brannin testified, he stated that he remembered that the

fact that Sue was a Jehovah's Witness was a factor in the case, but

that he did not remember any specific request for blood alcohol

results. Brannin also testified that he never received a blood

alcohol test for Sue, although Brannin did know she had been

drinking that evening because she did acknowledge the fact during

a police interview. Moreover, Brannin had prepared a memorandum to

the deputy county attorney stating that "there was certainly no

specific request for this information," referring to the blood

alcohol results.

The Deputy County Attorney stated at the hearing that when the

defense attorney interviewed Sue, she did tell counsel that she had

had "either two or three glasses of wine mixed with ~-UP, or

something of that nature, prior to the incident that night."

15
Moreover, the county attorney asserted, she also told Brannin that

she had been drinking when she made her statement to the police

officer and that statement was made available to the defense but

defense counsel never cross-examined Sue on that issue at trial.

The District Court, in its order of December 17, 1992, stated

the following:

Hearing on Defendant's petition was had on December

16, 1992 with defense counsel testifying that he asked

State's counsel for blood alcohol results on the victim

and was referred to the sheriff's office. Defense

counsel further testified that the investigative officer

in the Sheriff's office said he did not think there was

one because the victim was a Jehovah's witness. The

officer testified at hearing that he does not recall the

conversation and that his files do not contain blood

alcohol results for the victim. Defense counsel

subpoenaed the hospital records following trial for

sentencing purposes and those records contained blood

alcohol results of the victim.

The Court would grant Defendant a new trial if the

State had exculpatory evidence in its possession which

was not available to Defendant and did not turn over the

evidence to defense counsel. However, it does not appear

the State had the blood alcohol results on the victim in

its possession. The hospital records were equally

available to both parties by subpoena and therefore the

evidence is not newly discovered evidence which was

unavailable for trial and a new trial is not warranted in

this case.

We agree with the District Court that it does not appear that

the State had blood alcohol results on Sue in its possession.

Moreover, the hospital records were available to both parties by

subpoena. Defense counsel had information that she had been

drinking and if counsel thought that jury knowledge of her drinking

may have changed the outcome of the trial, it was counsel's

responsibility to request the information from the sheriff's office

or county attorney's office in a formal manner if informal requests

16
were of no avail. A written request for the necessary information

addressed to the county attorney's office or a request to the

District Court for an order requesting that the information be made

available to the defendant could have been employed to obtain the

blood alcohol results, pursuant to 5 46-15-322, MCA.

The problem of the prosecution failing to reveal evidence

necessary for a defendant's case is not present here. Lt. Brannin

stated that they did not have any reports on Sue's blood alcohol

level on the night of the incident and never requested such

reports. "Police officers may not frustrate or hamper a

defendant's right to obtain exculpatory evidence but they have no

affirmative duty to gather such evidence absent express statutory

mandate." State, City of Bozeman v. Heth (1988), 230 Mont. 268,

272, 750 P.2d 103, 105. We recently clarified the State's

obligation of disclosure under § 46-15-322, MCA, in State v. Licht

(1994) I _ Mont. _I _I __ P.2d _, _r 51 St. Rep. 686.

While, as we pointed out in that case, subsections (L)(a) through

(d) and subsections (2)(a) through (c) of that statute require the

prosecution to disclose all material and information described,

whether inculpatory or exculpatory, and while subsection (l)(e)

requires disclosure of all exculpatory or mitigating material or

information, there is no obligation under the statute for the State

to disclose material or information which it does not have in its

possession. Here, neither the prosecution nor the police had the

blood alcohol results and they had no affirmative duty to obtain

them. Therefore, the District Court did not err when it denied the

17
motion for a new trial (petition for post-conviction relief) based

on Barrack's argument that his failure to discover Sue's blood test

results was an excusable mistake.

AFFIRMED. /

We Concur:

,

18
Justice John Conway Harrison, dissenting.

I respectfully dissent. Section 45-3-103, MCA, provides:

Use of force in defense of occupied structure. A person

is justified in the use of force or threat to use force

against another when and to the extent that he reasonably

believes that such conduct is necessary to prevent or

terminate such other's unlawful entry into or attack upon

an occupied structure. However, he is justified in the

use of force likely to cause death or serious bodily harm

only if:

(1) the entry is made or attempted in violent,

riotous, or tumultuous manner and he reasonably believes

that such force is necessary to prevent an assault upon

or offer of personal violence to him or another then in

the occupied structure; or.

(2) he reasonably believes that such force is

necessary to prevent the commission of a forcible felony

in the occupied structure.

If § 45-3-103, MCA, had been followed by the jury in this case, a

not guilty verdict would have resulted. Clearly, the evidence

showed that Sue Llewellyn was the aggressor. She broke into an

occupied dwelling in the middle of the night by creating a scene

and then kicking down the door. Such actions are a clear invasion

of defendant's home and he was justified in his use of force in

defense of his home. I would reverse and remand for a new trial.

19

-,
Justice Terry N. Trieweiler specially concurring in part and

dissenting in part.

I concur with the majority's resolution of Issues I and II.

I dissent from that part of the majority opinion which concludes

that there was sufficient evidence to convict defendant of

aggravated assault.

Based on the undisputed evidence, I conclude that justifiable

use of force by defendant was established as a matter of law and

that judging the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found defendant

guilty of aggravated assault beyond a reasonable doubt.

Donald Barrack testified that on February 13, 1992, he was

awakened in the middle of the night by a blow to his trailer that

was so violent it physically rocked the trailer. He went to the

back door, but heard nothing further in that vicinity. The next

thing he knew, there was a loud crash in the vicinity of the front

door of his home, which again physically rocked the trailer as if

it had been hit by a motor vehicle. He picked up his pistol and

went to the area of his front door where the crashing sound

continued. The impact to his home was exceedingly violent and

rapid and continued to occur with such force that it rocked his

whole trailer. He asked the person outside to identify herself,

but received no response. With all the noise described by both

Barrack and his neighbor, it is not surprising that the violent and

aggressive intruder did not hear his question.

20
He then advised the person outside, "Don't kick the door in,

I'm armed." He still received no response, and after several more

kicks, the door flew open. He backed away from the door, not

knowing who was entering his home. The next thing he observed was

a large human form rushing through the door, despite his repeated

warnings. He was understandably scared and upset and feared for

his safety. He fired his pistol in the direction of the door,

striking the intruder.

Defendant testified that at no time prior to firing his pistol

in the direction of the intruder did he recognize her as Sue

Llewellyn.

Defendant's testimony clearly established the affirmative

defense of justifiable use of force in defense of an occupied

structure, which is set forth at § 45-3-103, MCA. That statute

provides that:

A person is justified in the use of force or threat to

use force against another when and to the extent that he

reasonably believes that such conduct is necessary to

prevent or terminate such other's unlawful entry into or

attack upon an occupied structure. However, he is

justified in the use of force likely to cause death or

serious bodily harm only if:

(1) the entry is made or attempted in violent,

riotous, or tumultuous manner and he reasonably believes

that such force is necessary to prevent an assault upon

or offer of personal violence to him or another then in

the occupied structure; or

(2) he reasonably believes that such force is

necessary to prevent the commission of a forcible felony

in the occupied structure.

The majority opinion correctly points out that if defendant's

testimony was contradicted in some material respect, it was up to

the jury to resolve the factual issue created by that

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contradiction. However, defendant's testimony was not contradicted

in any material respect. There were only two witnesses to the

incident which formed the basis of the charges against defendant.

The other witness was Sue Llewellyn, the person who forcibly and

violently broke into his home. The only relevant part of her

testimony related to her activity after her boyfriend left the

scene on foot.

She stated that she got back out of her car and returned to

defendant's home with the express purpose of breaking in. She

tried the knob, but it was locked. She kicked the door with as

much force as she could until it flew open. After the door opened,

she was not screaming, yelling, or saying anything else that would

enable defendant to identify her. Furthermore, she testified that

because of the darkness inside the trailer, she could not see

inside.

With her identity concealed by that same darkness, she entered

the trailer without identifying herself. Only at that point was

she shot.

Llewellyn acknowledged that she had no right to kick in the

door to defendant's home. She had been warned before going to the

trailer that he was still living there, but was angry about his

continued presence and intended to do something about it.

Based upon the testimony given by the only two witnesses who

have full knowledge of what happened that evening, Llewellyn's

entry was made in a violent, riotous, and tumultuous manner, and

defendant had every right to believe that force likely to cause

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seriously bodily harm was necessary in order to prevent an assault

on himself.

It is truly shocking that a person abruptly awakened in the

middle of the night by an unknown intruder who violently and

forcibly breaks into to his or her home, can be convicted of a

felony punishable by 20 years in the State Prison and a fine of

$50,000 for taking reasonable measures to protect himself.

While the prosecutor, the jury, and the majority may, with the

benefit of hindsight, conclude that defendant was not in danger of

serious bodily harm from Llewellyn's violent assault on his home,

defendant did not have the benefit of hindsight, anymore than he

had the benefit of knowing the intruder's identity or intentions

before making his split-second decision to defend himself.

He had no way of knowing whether the intruder was armed or

unarmed. However, based upon the intruder's disregard for his

warning, and based upon the manner of her entry, he had every right

to presume that her intentions were hostile and a threat to his

well-being.

For these reasons, I dissent from that part of the majority

opinion which concludes that there was sufficient evidence to

convict defendant of aggravated assault. I would reverse the

judgment of the District Court and remand for entry of judgment

dismissing all charges against defendant, Donald Barrack.

t

Ju ice

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Justice William E. Hunt, Sr., joins in the foregoing concurring and

dissenting opinion.

Justice

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