NO. 81-220 INTHE SUPREME COURT OFTHE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . JOSEPH RAYMOND CARTWRIGHT, Defendant and Appellant.

Appeal from: DistrictCourt of theNineteenth Judicial District, Inand fortheCounty of Lincoln Honorable Robert Holter, Judge presiding. Counsel of Record: For Appeilant: David W. Harman argued, Libby, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mike McGrath argued, AssistantAttorney General,

Helena, Montana b7illiamA. Douglas, County Attorney, Libby, Montana ~h&n Thompson argued, Helena, Montana

Submitted: June 22, 1982 Oecided: August 25, 1982 Fiied:,,id3; ,J3

## t98LMr. Justice John Conway Harrison delivered the Opinion of the Court. Joseph Cartwright was convicted of deliberate homicide and attempted deliberate homicide following a jury trial in the Nineteenth Judicial District, State of Montana, in and for the County of Lincoln. Cartwright

### was sentenced to thirty-five years imprisonment on each count; the sentences to run concurrently. From the foregoing convictionhe appeals. Prior to this unfortunate incident the defendant, Joseph Cartwright, and the deceased, Pamela McCully, lived together for almost four years. Their relationship began to deteriorate, and

on April 11, 1980, an incident occurred which resulted in the death of Pam McCully and the serious wounding of Pat McCully. That day, Cartwright returned home to find that several of his guns

### were missing. He learned from a houseguest thatPam McCully had been there earlier and had gained access through a livingroom window. Missing 

### were a ,308, a .30-30, a .14, a ,410 shotgun, and a .357 magnum pistol with holster. Cartwright 

### was angry, and inhisanger he "slugged thewall" and created a hole. The houseguest testified thathe statedhis intentions, "togo up there and 

### see if I can getmy guns back and I amgoing 

### to shoot her." Pamela McCully and several other members of her family 

### were fifty 

### miles away near Trego at the residence of Retha McCully, Pamela's mother. Cartwright got inhis 

### car and drove 

### to Trego. He took with him a loaded .22 caliber semi-automatic rifle, the only gun that had not been taken by Pamela McCully. On the way to Trego, Cartwright consumed three beers. He arrived at approximately 6:00 p.m. He pulled his car into the yard, stopped, and left the motor running. He remained in his car. Pamela McCully came out of the house and the two began 

### to argue. After a few minutes McCully went back in the house 

### to get 

### some cigarettes. She told hermother that "Joe had 

### a gun out there." Nonetheless she went back outside and on the way to Cartwrightlscar she picked up a broken cue stick thathad been laying inthe yard. The 

### two continued to argue. At about this time Bud McCully, hiswife Debbie, and their 

### two children came out of the house and were preparing to leave. Cartwrightcalled Bud McCully

over to the car and stated, "make her give 

### me my stuff back." Bud McCully did not respond but was irritated by the manner in which his 

### sister Pamela was tapping the broken cue stick on the

car. He toldher 

### to stopand walked away. Atthispoint the factsareconflicting. The situationbegan to move rapidly. Several witnesses testified that Cartwright threatened Pamela McCully; stating "you have got twenty-four hours to live." Pat McCully then approached the car and chastised Cartwright for talking to his sister that way. Pat McCully testified thathe thenhitCartwright inthejaw withhis right fist. Cartwrightreportedlysaid, "don't hit

### me Pat." The .22 caliber rifle that had previously been pointing toward the floorboard was pointing out thewindow. A struggle ensued. Both Pat and Pam McCully 

### were holding on to the barrel. The barrel

was "tipped up" and Pat McCully was shot in the stomach. After being shot he scrambled into the house. Then, according to testimony of Retha McCully, "he [Cartwright] just turned the gun

on Pam and shot her." She was not holding on 

### to the barrel when she was shot. Retha McCully further testified that when Pamela

was shot "her neck 

### went back and she kind of staggered forward and thenhe shot again and she slumped down on hisarm because he had his arm out the window." Blood stains 

### were found on the defendant's leftshirtsleeve, on a blanket used tocover the car seat, and on the side of the defendant's car door. A forensic scientist testified that all three blood samples were consistent withPamela McCully's blood type. Pamela

### 's death was instantaneous. The bullet transected the upper portion of the spinal cord. The defendant's rifle was loaded with .22 caliber hollow point 

### or "dum dum" bullets. According to testimony "a hollow point bullet, when strikingbone, tends to mushroom and fragment. 

# . .and in this case there

was an extensive fragmentation of the bullet structure

# ." Approximately 30 fragments of lead 

### were removed from the neck

area. An instant later, Mike McCully 

### came out of the house with a .308 caliberrifle. He aimed the riflebut Retha McCully pushed his aim into the air as he fired. A neighbor testified that after hearing one loud shot from a heavy-caliber rifle, he heard another volley of small caliber fire; thisbeing Cartwright who stopped at the cattle guard on his way out to fireback at the house. Investigators found .22 caliber shell casings on the ground near the 

### cattleguard. The defendant's version of the incident varies. The defendant testified that he did not threatenPamela McCully with the statement that she had twenty-four hours to live; rather he stated "shehad twenty-four hours togetmy riflesback and I was going 

### to the sheriff

# ." Cartwright further testified that when Pat McCully approached the 

### car he had a pistol inhis lefthand. He 

### also said that he 

### saw Mike McCully with a rifleprior to the shooting. Cartwright became "scared" and he toldPamela thathe "was getting the helloutof there

# ." Pamela responded, "thehell you are." Then the struggle for his .22 caliber rifle ensued. The defendant testified that he attempted to drive away but the

car was spinning in the mud. He did not remember firing any shots but he 

### recalls empty casings hitting him in the face. He further testified that the stock of the gun was stuck in the steering wheel as he 

### was driving near the cattle guard and 

### two shotswent off. After leaving the McCully residence Cartwright stopped his

car near a gravelpitlocated 3/4 of a mile from theTrego store. Cartwright testified thathe stopped because he had to "go to the bathroom 

### real bad." The State offered another explanation for the stop 

### at the gravel pit; that the defendant stopped to shoot hisown 

### car in an attempt to confuse the issues. The defendant's

### car sustained a shattered front passenger window and a hole in the left 

### rear section of the roof. Two ballistics experts testified that the hole in the roof 

### was caused by a .22 caliber bullet. Furthermore, two spent .22 calibercartridges

### were found by the gravelpit. Testing showed thatthese had been fired from Cartwrightlsrifle. A small pile of glass

### was found about 3/4 of a mile from the gravel pit. It

### was analyzed and compared to glass samples taken from the window and interior of Cartwrightls 

### car. The 

### two samples had identical chemical and physical properties. The Statecontends that Cartwright leftthe gravelpit, went further down the road and shot hisown window out. No glass

### was found at theMcCully residence

# . Shortly after the incident the defendant turned himself over to the Eureka police; he 

### was "scared" and thought the McCullys would be coming afterhim. Atthe police station the defendant made a taped statement to Deputy County Attorney Shaun Thompson and Detective Rodney Deboer. Prior 

### to making the statement, Cartwright 

### was informed of his "Miranda rights," signed a waiver, and answered questions for the investigators

# . The defendant 

### raises three issues: (1)whether the District Court erred in failing to suppress statementsmade to investiga

### tors shortly after the incident; (2)whether the District Court erred by refusing the defendant's offered jury instructions on self-defense; and (3) whether it 

### was proper for the District Court to refuse offered characterevidence of the victim and her farnily. The defendant claims that certain portions of the taperecorded statementmade by him shortlyafterthe shooting should not have been allowed to impeach his testimony. Apparently the State 

### was concerned of possible Miranda violat ions. In Miranda

v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court ruled that if an accused asks 

### to consult with an attorney, police questioning must stop. In thiscase it is unclearwhether thedefendanteffectivelyasserted his right to counsel during the interrogation; and if he did, it is equally unclear whether 

### or not he waived that right. At a suppressionhearing on this

### matter, theDistrictCourt ruled that the defendant did not effectively assert his right to counsel, and "assuming arguendo that the defendant effectively asserted hisright tocounsel, he waived hisright to counsel by desiring to proceed with the interview." However, 

### we need not address these issues because the taped statement 

### was not used for the prosecution's case-in-chief. Various portions

### were used but only for impeachment purposes. This is a 

### critical distinctionwhich willbecome evident shortly. First, it 

### is necessary to show how the taped statement

### was used. The defendant testified that he did not recall when the passenger window of his 

### car was shattered. The prosecution played the £01-lowing portion of the taped statement: "A. I was taking off as it happened and I had my .22 automatic likethis, and I grabbed like that, and I turned and that's when my window went out." Testiinony of the defendant indicated that Mike McCully 

### came out of the house with a rifle during the struggle for his .22 caliber rifle. Two portions of the taped statement

### were played which showed that he 

### was first 

### aware of Mike McCully with the rifle when he 

### was leaving, after the shooting had taken place. "A. I thinkPam 

### was hanging on to the window part 

## -- yeah, my window part; my window 

### was rolled down and she 

### was hanging on there. I fired once 

### or twice then when I 

### was leaving, and I went down and I seen the other brother come out with a rifle with a scope on and I firedonce ortwiceagainthatway.

"Q. Hisname is Pat? A. Pat. "Q. And 

## -- A. Blond-haired guy, and the otherbrother's name 

### isMike, and Mike, he ran back 

### to the house and he 

## -- as I 

### was going down thehillfrom thehouse, he come outwith a riflewith 

### a scope on it cause I looked like thatand he's going likethis." The defendant 

### also testified that he heard a loud shot justafterhe sawMike McCully with the rifle. The following portion



### was used inrebuttal. "Q. Which brother? A. Mike. "Q. Other thanyour riflebeing fired, doyou recall any other weapons being fired? A. NO. 'I Finally, the defendant testified that he did not honk his horn when he drove into the yard. The following portion of the taped statement indicates otherwise. "Q. When you pulled up, did you beep your hornorsomething? A. Right. "Q. You beeped your horn? A. Yes. "Q. About how many times did you beep your horn? A. Three

## -- about 

### twotimes." After the preceding portions of the statement 

### were admitted the entirestatement

### was played to the jury atthe request of the defense. The record makes 

### clear thatthe objectionof the defendant

### was limited to only those portions of the statement 

### set out above. ThisCourthas followed the rule of 

### twoUnited StatesSupreme Court cases. First, inHarris v. New York (1970), 401U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, the Court held that although evidence is inadmissible in the prosecution's case-in-chief because of Miranda violations, such evidence is not barred for 

### all purposes. 

### In Harris, the defendant had made statements 

### to the police after being taken into custody. A transcript of the statementshows thathe

### wasnot informed of his right

### to counsel. The prosecution conceded the Miranda violation but still used the statement for impeachment purposes. The Court in upholding theconviction stated: "Miranda barred the prosecution from making its case with statements 

### of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution's casein-chief is barred for allpurposes, provided of course thatthe trustworthinessof the evidence satisfieslegal standards." Harris, 401 U.S. 

### at224. There is a very good reason for such a rule. The Mirandashield should not allow an accused to commit perjury. As the Court noted: 

### "[elvery criminaldefendant is privileged totestify inhisown defense, orrefuse to do so. But thatprivilege cannot be construed to include the right to commit perjury." Harris, 401U.S. at225. Thus Harris allows the use of statements made by an accused for impeachment purposes notwithstanding Miranda violations. Of

course there 

### is a danger here. What is to prevent police investigators fromwillfullyviolating theprinciplesof Miranda, knowing thatevidence obtained can stillbe used forimpeachment? Harris touched on this problem with the language: "provided of

course that the trustworthiness of the evidence sat is£ 

### ies legal standards." Harris, 401U.S. at224. The Supreme Court addressed the issue in the 

### later case of Oregon 

### v. Hass (1975)r 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570. There the Court restated the ruleof 

### Harris and went on 

### to say

### "[ilf, ina given case, the officer's conduct amounts to abuse, that 

### case, like those involving coercion orduress, may be taken 

### care of when it 

### arises measured by the traditional standards for evaluating voluntariness and trustworthiness." Hass, 420 U.S. at 723. Thus, Hass refined Harris by emphasizing the safeguard. The rule of Harris will not 

### allow coercion or duress on the part of police investigators. As noted above, this Court has adopted the rationale of Harris and Hass and 

### is not persuaded to change a sound rule. In State

### v. Smith (1975), 168Mont. 93, 541P.2d 351, 

### we cited and agreed with both Harris and Hass. We reaffirmed our position in the later case of State v. Buckley (1976), 171Mont. 238, 557 P.2d 283, where 

### we upheld the use of testimony at a pretrial suppression hearing to impeach the defendant at trial. The defendant claims that the statements given shortlyafter the shooting did not 

### meet standards 

### of trustworthiness for several reasons; "the defendant had just arrived from the McCullys. He had blood on his shirt. He had glass splatteredover himself and his 

### car and he thought that the McCullys would be coming after him." However, these facts do not suggest pressure "greater than that on any person in like custody or under inquiry by any investigating officer." Hass, 420 U.S. at 723. Furthermore, there 

### are no facts inthiscase to suggest any coercion or duress. The defendant 

### came willingly to the Eureka police station. He was read his Miranda rights and signed a waiver. He agreed to make a statement. He 

### was told that he could stop at any time. The investigating officers 

### were very careful to make sure that he understood his rights. The defendant 

### seems to be placing primary emphasis on a recent case which holds thatonce a suspect invokes hisright 

### to counsel

## , questioning must stop. This 

### case is Edwards v. Arizona (1981), U.S. 

## , 101S.Ct. 1880, 68 L.Ed.2d 378. In Edwards the defendant 

### was arrested, taken to police headquarters, and informed of hisMiranda rights. He agreed to sub

### mit to questioning and learned that another suspect had implicated him. He then gave a taped statement denying any involvement. Then he sought to make a deal. Negotiations broke down and Edwards requested an attorney before any deal 

### was made. The next morning, after listening to the taped statement 

### of the suspect who had implicated him, Edwards admitted involvement in the 

### crime. The trial court admitted the confession as evidence and Edwards 

### was convicted. The Arizona Supreme Court upheld the conviction finding that the waiver and confession 

### were voluntarily and knowingly made. The United States Supreme Court reversed. The defendant's reliance on Edwards is ill-founded. The case does not create a new rule to cast doubt on the holdings of Harris and Hass. Edwards restates the rule of Miranda; that if an individual requests an attorney, questioning must stop. The

case goes on 

### to address the question of waiver, holding that "a valid waiver of that right cannot be established by showing only that he responded to further custodial interrogation even if hehas been advised of his rights." Edwards, 101 S.Ct. at 1884. Thus the interrogation must cease "unless the accused himself initiates further communication, exchanges or conversations with thepolice." Edwards, 101S.Ct. at1885. It 

### is clear that the United States Supreme Court did not intend 

### to change therule

### of Harris

### or Hass, ratherthey intended to devise and define 

### a test concerning waiver of the right to counsel. The questionbefore thisCourt is not a waiver question and 

### we do not intimate an answer to any such question. Edwards is of no help. 

### Harris and Hass and our own cases of Smith and Buckley 

### areon point. The DistrictCourt did not 

### err by allowing portions of the statement forimpeachment. Next the defendant 

### claims he 

### was entitled to jury instructionson self-defense. Defendant correctlycites the fundamental rule found in Buckley, that "the district court s instructions must cover every issue 

### or theory having support inthe evidence, and the inquiryof the districtcourtmust onlybe whether ornot any evidenceexistsinthe record towarrant an instruction.

# . .I1 Buckley, 171 Mont. at 242, 557 P.2d at 285; State v. Gopher (1981)

## , Mont

# . ,633P.2d 1195, 38 St.Rep. 1521; Statev. Sorenson (1980), ---- Mont

# .----

## , 619 P.2d 1185, 37 St.Rep. 1834; Statev. Bouslaugh (1978), 176Mont. 78, 576 P.2d 261. The Montana legislaturehas statutorilyadopted rules forthe defense of self defense 

### or 

### more accurately, justifiable use 

### of force. As

a general rule, "A person 

### is justified inthe use of force 

### or threat 

### to use force against another when and 

### tothe extent thathe reasonablybelieves that suchconduct is necessary to defend himself or another against such other's imminent use of unlawful force. However, he is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm 

### to himself 

### or another 

### or to prevent the 

### commission of a forcible felony." Sect ion 45-3-102, MCA. However the use of force described above 

### is not available to

an aggressor. If an individual is an aggressor the followingrule applies. "The justification described in 45-3-102 through 45-3-104 is not available to a person who: "(1) is attempting to commit, committing, or escaping after the commission of a forcible felony; 

### or "(2) purposely 

### or knowingly provokes the use of forceagainsthimself, unless; "(a) such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely 

### to cause death 

### or seriousbodilyharm to the assailant; 

### or "(b) in good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force but the assailant continues 

### or resumes the use 

### of force." Section45-3-1051 MCA. The Commission's comments to 45-3-105 make it 

### clear that "the preceding sections of this chapter has assumed that the person using force.

# . .has not otherwiseprovoked such force. This section concerns the much more limited right which a person has 

### to defend himself, when he has committed an unlawful act 

### or otherwiseprovoked the use of force

# ."

The facts in this 

### case clearly indicate that the defendant

was an aggressor. After findinghisguns had been taken he drove fiftymiles with a loaded .22 caliber rifle. Before leaving he told a houseguest that "he 

### was going to go up there and gethis guns and shoot her." While at the McCully residence he threatened Pamela McCully by stating "you have 24 hours to live." These facts certainly establish the defendant as an aggressor, consequently the a£firmative defense of justifiable use of force would apply only in two situations. First, if such force

### was so great that he reasonably believed he was in danger of death or serious bodily harm and he exhausted every reasonable means of escape. Here the defendant stayed in his car with the motor running. He 

### was parked for an easy exit. Even if 

### we assume the defendant 

### was in fear of his life or being seriously injured,which 

### seems doubtful inview of the fact thatwhen Pamela McCully

was shot, atmost she was armed with a broken cue stick, it is clearthathe did not exhaust hismeans of escape. Prior to the actual shooting the defendanthad ample opportunity to leave. In his own words he was "scared" even before arriving at the McCullys, yet during the ten 

### to fifteenminutes he 

### was there he made no attempt to leave. Second, the defense would have been available if in good faithhe withdraws from physical contact and clearly indicates a desireto terminate the use of force. Clearlythe factswillnot support the defendant's withdrawal. AfterPatMcCully was shot, he could have devoted all of his energies 

### to escape and withdrawal from the fight, ratherhe turned thegun on Pamela and fired. Furthermore, when he reached the cattle guard he fired several more shots atthe house. Such actions are certainlynot indicative of an intent to withdraw. We find no 

### error in the trial court's refusal to allow an instruction on self-defense. Finally the defendant appeals the trial court's refusal 

### to allow evidence concerning threats made by the victims and their family. The defendant's offer of proof shows the intention 

### to introduce the following: 1. That Pamela McCully made threats toward the defendant, stating that shewas going 

### tokillhim; 2. Thathe had seen Mike and PatMcCully fighting, thatPat

was kicking Mike in the head and Pat had to be restrained from further acts of violence; and that at that time Pat actually stepped onPam's foot and twisted her foot to thepointwhere you could hear a snap inthe foot area; 3. That an incident occurred ina bar and both Pat and Mike

were present, that Mike made physical contact with the defendant and made the comment "some day Joe, some day;" 4. That the day before the shooting incident, Pamela McCully had followed himwith a gun, shewas inher carand shewas brandishing a gun atthedefendant; and5. That recentlyRetha McCully had threatened thedefendant, saying that if she ever caught the defendant with Pamela again she would blow his head off or have one of the boys do it. A recent case 

### is directlyon point. InState

### v. Breitenstein (1979)r 180Mont. 503, 591P.2d 233, 

### we had a similar situation. The defendant 

### was convicted of aggravated assault for drawing a .22 caliber pistol and threatening to blow the victim "full of holes like a sieve." Long before this incident, the defendant and victim had been on poor 

### terms. The defendant wanted to introduce evidence of past threats made by the victim and his mother-in-law. The trial court rejected the evidence forlackof foundation. We affirmed. The applicable rule of evidence is Rule 404(a)(2),Mont.R.Evid., which 

### states: 

### "(a) Characterevidence generally. Evidence of a person's character 

### or trait of his character is not admissible forthepurpose of proving that he acted inconformity therewith on a particularoccasion, except:



### "(2) Characterof Victim. Evidence of a pertinent

### traitof characterof the victimof the 

### crime offered by an accused, 

### or by the prosecution 

### to rebut the 

### same, 

### or evidence of a character 

### trait of peacefulness of the victim offered by the prosecution in a homicide 

### case or in an assault case where the victim is incapable of testifying 

### to rebut evidence that thevictim

### was the firstaggressor

# ."

The comments to the rules 

### are more succinct: "[u] nder Montana 

### case 

### lawthe accused must firstlay a foundation thathe acted in self defense before he can introduce evidence of the violent character of the victim." An indispensible component to the foundation of self-defense 

### was stated in State v. Logan (1970), 156Mont. 48, 65, 473 P.2d 833, 842: 

### "[ulntil such time

as defendant took the stand and admitted the killing, the issue of self defense was not joined atthe trial. Thus, no foundation existed for the admission of the testimony." In this case too, the proper foundation 

### was absent. The defendant did not admit the killing, rather he 

### states that he does not remember firing any shots, onlyempty casingshitting him inthe face. The trialcourt did not err in refusing the offered character evidence. For the reasons stated herein, we affirm the District Court's judgment. 

# uJustice

Weconcur: 

# 8d8.

# ~4
Chief Justice

/ Justices

### Mr. Justice FrankB. 

### Morrison, Jr., specially concurring: I

### concur in the resultbut notwith the entire rationale of the majority opinion. With respect to IssueNo. 2,

### concerning whether itwas error to deny defendant's offered instructionon selfdefense, I

### would reach the sameresult,but for a different

reason. Thedefendantheredid not relyupon self-defense. Defendant's version of the incidentwas that thegun accidently discharged. Under these circumstances,itwas not error for theDistrict Court to refuse the self-defense instruction. I 

### take issuewith themajority's position that the defendent was not entitled to a self-defense instruction because defendantwas shown tobe the aggressor. Under defendent's version of the facts, he was not the aggressor andwould be entitled to an instructiononhis theory. However,becausehe did notrelyupon self-defense itwas not error for the trial court to refuse to give suchan instruction. I

### would affirm.

I 

### join in the specially concurringopinionof Justice Morrison: