NO. 93-243

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JAKE STONE,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Dan Yardley, Yardley & Yardley,

Livingston, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Jennifer Anders, Assistant Attorney

General, Helena, Montana

William Nels Swandal, Park County Attorney,

Livingston, Montana

Submitted on Briefs: July 6, 1994

Decided: August 30, 1994
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendant, Jake Stone, was charged by information filed in

the District Court of the Sixth Judicial District in Park County

with two counts of aggravated assault pursuant to § 45-5-202(l),

MCA (1991). Following a jury trial, he was found guilty of one

count of aggravated assault and one count of felony assault

pursuant to § 45-5-202(l) and (2)(a), MCA. The District Court

denied Stone's motion for a new trial. Stone appeals that order of

the District Court. We affirm the District Court.

The only issue presented on appeal is whether the District

Court properly instructed the jury regarding the defense of

justifiable use of force.

FACTUAL BACKGROUND

On October 28, 1992, Jake Stone and his wife, Deborah Wilson,

stopped at the Wapiti Bar in Gardiner. Sometime after their

arrival, the owner of the bar asked them to leave due to their

disruptive behavior. At approximately the same time, Ron Dodson

and Terry Peters left the bar. Dodson and Stone had, just prior to

leaving the bar, exchanged verbal insults, and while exiting toward

their vehicles, became involved in a physical altercation.

There were several witnesses at the scene. Testimony at trial

indicated that Dodson's friend, Terry Peters, attempted to break up

the fight. As the altercation began to subside, Stone grabbed a

pipe two inches in diameter and two feet long from his truck and

more struggling ensued. A bystander, Dean Birgsing, joined in the

attempt to wrestle the pipe from Stone. Another bystander, Les

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Kellem, pulled the pipe away, declaring that if there was to be a

fight, they "didn't need no damn pipe." As Dodson, Peters, and

Stone began to disperse for the second time, Stone retrieved

another pipe from his truck and struck Peters in the leg and head

"as if he was swinging a bat."

Meanwhile, Dodson retrieved a tire iron from his vehicle and

threw it in the direction of Deborah Wilson, but did not hit her.

Dodson then began to enter his vehicle and Stone attacked him with

the pipe. A witness testified that Dodson attempted to protect

himself by covering his face with his hands as Stone struck him in

the head. Dodson scrambled under the vehicle. Stone left the

scene with his wife before the sheriff and ambulance arrived. He

received no serious injuries. Both Peters and Dodson were

seriously injured as a result of Stone's attacks.

At trial, Stone asserted justifiable use of force as an

affirmative defense. He claimed that his actions were necessary to

prevent being seriously harmed himself. He claimed that Dodson and

Peters had ganged up on him and that he feared for his life. The

jury found Stone guilty of the felony assault of Dodson, and guilty

of the aggravated assault of Peters.

Stone moved for a new trial based on his assertion that the

jury instructions on justifiable use of force contained an

"absolute statement" which implied that a person who is himself the

aggressor cannot claim justifiable use of force. He further

alleged that this misstatement of the law confused the jury, as

indicated by their questions to the judge.

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Montana allows a person to use force to defend himself or

herself in a degree commensurate with the threat of harm the person

faces. See § 45-3-102, MCA. However, 5 45-3-105(2), MCA, provides

that the defense is not available to a person who has purposely or

knowingly provoked the use of force against himself, i.e., an

aggressor. The exception to this rule appears in subparagraphs

(2)(a) and (b) of that same statute. Thus, an aggressor may not

claim the defense justifiable force, 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 escane such danqer other than the use

of force which is likely to cause death or serious bodily

harm to the assailant; or

(b) in good faith, he withdraws from nhvsical

contact with the assailant and indicates clearlv to the

assailant that he desires to withdraw and terminate the

use of force but the assailant continues or resumes the

use of force.

Section 45-3-105(2)(a) and (b), MCA (emphasis added).

The law in Montana with regard to jury instructions on

justifiable use of force is well-settled. The statutes upon which

the Montana Criminal Jury Instructions (MCJI) are based have not

changed since their enactment as part of the Revised Criminal Code

of 1973. The only deviation between the MCJI and the statutes

occurs with the additional language suggested by Justice Sheehy in

St& V. Graves (1981), 191 Mont. 81, 96, 622 P.2d 203, 211-12

(Sheehy, J., concurring), to supplement the "bare" language of

5 45-3-102, MCA. The instructions given to the jury regarding

justifiable use of force were as follows:

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INSTRUCTION NO. 19

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

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.

INSTRUCTION NO. 20

The defendant has pleaded justification in the use

of force in this case. As such he has the burden of

producing sufficient evidence of justification in the use

of force to raise a reasonable doubt of his guilt. You

are to consider the following requirements of the law in

determining whether the use of force claimed by defendant

was justified:

1) Defendant must not be the aggressor;

2) The danger of harm to the defendant must be a

present one, not merely threatened at a future time, or

without the present ability of carrying out a threat:

3) The force threatened against the defendant must

be unlawful;

4) The defendant must actually believe that the

danger exists, that is, use of force by him is necessary

to avert the danger and that the kind and amount of force

which defendant uses is necessary.

5) Defendant's belief, in each of the aspects

described, is reasonable even if it is mistaken.

You are further advised that even if you determine

the use of force by defendant was not justified, the

state still has the duty to prove each of the elements of

the crime charged beyond a reasonable doubt.

INSTRUCTION NO. 21

You are instructed that the use of force in defense

of a person is not available to a person who purposely or

knowingly provokes the use of force against himself

unless such force is so great that he reasonably believes

that he is in imminent danger of death or serious bodily

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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 serious bodily harm to the

assailant.

These instructions are closely patterned after MCJI 3-102,

3-115(a), and 3-105, and with the exception of the good faith

withdrawal exception found at 5 45-3-105(2)(b), MCA, completely

represent the law on justifiable use of force in Montana, including

the Graves instruction. "If the instructions, reviewed as a whole,

fully and fairly present the law to the jury, the jury has been

properly instructed." Statev.Hall (1990), 244 Mont. 161, 172, 797

P.2d 183, 190. In this case, the judge instructed the jury to

"consider the instructions as a whole . . .'I on two separate

occasions. Thus, the jury was admonished to read the language

"defendant must not be the aggressor" with the language of Jury

Instruction No. 21 setting forth the circumstances that an

aggressor may claim the defense. If the jury found that the

defendant was the aggressor, according to the instructions, they

were required to determine whether he had exhausted every

reasonable means to escape the use of similarly aggressive force

against himself. See Jury Instruction No. 21 and § 45-3-105(2)(a),

MCA. As we stated in Graves:

[T]he test to be applied when error is predicated on a

jury instruction is whether, when the instruction is

considered as a part of the whole body of instructions,

the instruction is prejudicial to the appealing party.

. . .

IfiIIn determining the effect of given instructions,

. . . if they fairly tender the case to the jury, the

fact that one instruction, standing alone, is not as full

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or accurate as it might have been is not reversible

error. ' "

Graves, 622 P.2d at 210-11 (quoting statev. Reiner (1978), 179 Mont.

239, 244-45, 587 P.2d 950, 953-54). We find that the jury

instructions, when read as a whole, accurately represent the law of

justifiable use of force; that there was no prejudice to Stone: and

that the jury was properly instructed in this case. However, for

future guidance we suggest that where there is evidence to support

instructing the jury on one or both of the exceptions found at

5 45-3-105(2)(a) and (b), MCA, that a paragraph like subparagraph

(1) of Instruction No. 20 not be given out of context, but be read

in combination with the statute's exceptions so that the

instruction is clearer to the jury.

Stone further argues that questions sent to the judge from the

jurors indicate confusion and misunderstanding of the law, implying

that the jury verdict should be impeached. The questions were as

follows:

JURY: Re Instruction #20. Must all 5 requirements be

met in order to be justified? If not, which ones must be

met in order to be justified in self defense?

JUDGE: The answer to your question is yes, but remember

all the instructions are to be considered together.

Later, the jury submitted this question:

JURY: We all agree on #l that the defendant is the

aggressor. At this point we are not agreed on the

other 4. Does our agreement on point #l make the

defendant legally not justified, as he can't meet all 5

requirements on this Instruction #20?

JUDGE: I cannot answer your question any further.

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Rule 606 (b) r M.R.Evid, prohibits exploring the mental

processes of jurors except for limited situations which are not

present in this case.

Without exploring the jurors' states of mind, and based on the

record available, the decision to grant a new trial was within the

District Court's discretion. Absent a clear abuse of discretion,

we will not disturb that decision on appeal. State v. Arlington (Mont.

1994), 875 P.2d 307, 321, 51 St. Rep. 417, 427.

We conclude that the jury instructions, when considered

together, fairly instructed the jury regarding justifiable use of

force, and that the District Court did not abuse its discretion

when it denied defendant's motion for a new trial.

We affirm the judgment of the District Court.

We concur:

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