No. 32-462 INTHE SUPREME COURT OF THE STATE OF MONTAPJA 1984

STATE OF MONTANA, Plaintiff and Respondent,

-vsJOSEPH KUTNYAR, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Fourth JudicialDistrict, Inand forthe County of Ravalli, The Honorable Arthur B. Martin, Judge presiding.

COUNSEL OF RECORD: For Appellant: JeffreyH. Langton argued, Hamilton, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Dorothy McCarter argued, Asst. Atty. General, Helena Robert B. Brown, County Attorney, Hamilton, Montana Margaret Tonon aruged, Deputy County Attorney, Hamilton, Montana

-- Submitted: March 15, 1984 Decided: July 31 1984

Filed: 

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- ClerkMr. Justice John Conway Harrison delivered the Opinion of theCourt.

This is an appeal from the District Court of the Fourth Judicial District, County of Ravalli, from the conviction of the crime of mitigated deliberate homicide following a jury trial. The appellant, Joseph Kutnyak, was sentenced tothirtyyears intheStatePrison. We affirm. The appellant shot and killed Charles Hayes on February 19, 1982. Prior to this killing there were a number of rather complicated incidents and contradictory facts concerning the relationship of the two men in the spring of 1978. The decedent, Hayes, had purchased land in the West Fork area of Ravalli County, known as the Hughes Creek Drainage. He had moved tothe Stateof Montana from Nevada where he had spent some time in a Nevada jail on an assault conviction after shooting a man in a bar fight. Following his arrival in Montana, he built a cabin in an isolated area to be occupied by himself and his wife. During thisbuilding period, hiswifeSusanworked inNevada and visited him periodically to assist in the building of the cabin. She did not move toMontana until February of 1979. According tothe record, the firstcontact thatHayes and his wife had with any member of the Kutnyak family was in the late spring of 1979 when theymet Debbie Kutnyak in Darby, Montana. They feltsorryforher inasmuch asshewas out of work and in need, and invited her to stay in their home until she could find a place to live. According to Susan Hayes' testimony Debbie Kutnyak and her child stayedatthe cabin for some time. Susan assisted Debbie and her child in making arrangements to get housing. Debbie told theHayes family thather husband had been killed ina mine accident inColorado. Thisproved tobe false, for a short timelater, afterDebbie located a cabin intheHughes Creek area, her husband joined her, and the family took up residence. Sometime later in September 1979, Hayes and several other persons terrorized the appellant and his family by arrivingafter dark one night, shouting and shooting atthe cabin that housed the appellant's family. According tothe appellant and his wife, this went on for several hours during thenight. The next morning he and hiswifewent to town to see the county attorney tohave aggravated assault charges filedagainstHayes and hiscompanions. Asa result of these charges being filed against Hayes and his companions, the deceased was put on probation for a five-year period, was ordered not to have any guns in his house or inhispossession and was directednot tohavemore than .05% blood alcohol count at any time during his probationperiod. Following his conviction and placement on parole, therewere numerous incidentstestified toby the appellant, SusanHayes and other witnesses for the State, showing that Hayes violated the conditions of his parole. From the testimony produced at trial there is little dispute that Hayes violate? the conditions of his parole with impunity. His parole officer, Sally McRae, testified that she felt that she had an improving relationship with him during the period of parole but acknowledged that he was "very angryand hostile toward law enforcement." Shehad an arrangement with him that he would report in once a month. During the wintermonthswhen the areainwhich he livedwas snowed-in, he would send a reportoutbymail which the Postal Service covered twice aweek. In addition to the above facts concerning the hostility of Hayes and his violations of the parole provisions, therewas testimonyby thesheriff'sofficethat it had some problems in the Hughes Creek area involving Hayes pertaining to miners who were exercising mineral rights in the area; problems with private citizens or law enforcement people in the area; problems involving people either fishing or cross-country skiing who were made aware of Hayes' possessive tendenciesconcerning thepropertynear hiscabin involving theuse of hisDoberman dog. Following the 1979 aggravated assault incident, the record shows thattheKutnyak and theHayes familiesdidnot have any contact with each other until the summer of 1980, when they met at a hot springs just over the divide from theirpropertyand decided to tryand reestablish a friendly relationship. From that timeuntilHayes' death, therewas contradictory testimony as to the relationship between the parties. Hayes' wife testified indetailastothecontacts between the parties, including but not limited to the exchange of presentson birthdays and Christmas, exchange of dinners, hunting tripsand tradesmade for supplies and for marijuana. Hayes grewmarijuana on their plots forpersonal

use and for trading purposes in the area. There is also testimony that the two men hunted together. Also, the Kutnyak family would stay with Susan Hayes while the menwere outhunting. Therewas also testimony from other State witnesses showing that the twomen appeared to get along and did not exhibit hostile behavior in their presence. On February 1, 1982, Ken and Lisa Schultz, neighbors of the Kutnyaks, stopped at the Kutnyaks' residence after returning late from town and stayed there until approximately 4:00 a.m. listening to the appellant's stories about Chuck Hayes. The appellant relatedmany stories which would be repeated to other persons over the next several weeks concerning Chuck Hayes' alleged threats to the appellant and to his family; his efforts at trying to get the appellant to commit crimes for him and similar stories. Ken Schultz became so concerned about the situation that he reported it to Detective PeteClarkson of the Ravalli County Sheriff's office. Schultz told him that there might be problems brewing in theWest Fork area. Clarkson traveled to the West Fork shortly thereafter to meet with Ken Schultzand another neighbor, John Houston, both of whom told the detective the stories they had been told by the appellant. Neither of the men had independent information which they could supply to the detective other thanwhathad been told to them by the appellant. Later,at

a subsequent meeting at the home of John Houston, Clarkson took statements from Houston and Ken Schultz. After hearing the tapes of that meeting, itwas agreed that the sheriff's office and the probation office still lacked probable cause for a searchwarrant, and ameeting at the appellant's home was set up for February 19, the date of the homicide. The purpose of thismeeting was to attempt to observe Hayes in violation of his parole.On the early morning of February 19, 1982, Detective Clarkson, Probation Officer Sally McRae and Undersheriff Ron Fisher left the sheriff's office and arrived at the appellant's home at approximately 9:00 a.m., at which time appellant and his wife and children were present. The appellant had been made aware of their coming and agreed to their plan, which was to observe Hayes to see whether or not he had any kind of a weapon on him. After arrival at the appellant's home, the three law enforcement officers donned bullet-proof vests and took various positions in the cabin. Shortly after their arrival the appellant had his wife and their two children go to a home of a neighbor so theywould not be in any danger. During their wait, the three officers listened to appellant talk "non-stop:' reiterating what they had previously been told about Hayes. 

### In addition, during this time, the appellant toldMcRae and Clarkson indetail how he would kill Chuck Hayes. In his various talks with John Houston, the appellant had previously told Houston how he would shoot Chuck Hayes and that when he saw him he was going tobad mouth him and provoke him into drawinghis gun. As the morning grew later and Hayes did not appear, Sally McRae said that it would be necessary for her to go to town because shehad an appointment. She testified that they had been told by the appellant that Hayes would arrive for his mail anytime between 9:30 a.m. and 11:OO a.m. At 12:15 p.m. the three finally left to return to town. According to the appellant, Hayes arrived at the mailbox in front of his house fifteen minutes after the three law enforcement officers' departure. One of the interesting factorstestified to by all three officers was that, after they notified the appellant that they were returning to town, he began to ask questions about what constituted self-defense. Before the officers left, they suggested that if Hayes came thatday, the appellant should not answer the door. According to the appellant's statement,Hayes drove up on his snowmobile,parked it near themailboxes, came to the Kutnyak cabin and rapped on his door. He testified that he did not answer the door and waited awhile until Hayes went back to his snowmobile. Appellant then ruffled-up hishair, opened the door and told Hayes that he had been sleeping. Hayes entered the cabin, took off his pistol holster and put it on the table. The two men then spent sometime together smoking marijuana and drinking. Appellant testified that,

asHayes was about to leave,Hayes insultedhim and told him that he would kill him. Hayes picked up his gun, put it back on and walked to his snowmobile. Appellant followed him outside, carrying his 12mm semi-automatic pistol in the back of hispants. The testimony concerning what happened, of course, is that of the appellant. He testified that after Hayes got next to the snowmobile,he pulled outhis gun and shotHayes five times. He then claimed, in a statement made to the sheriff, that he walked over to Hayes, tapped Hayes' gun back intohisholster, walked back into the cabin,had a cup of coffee and then went to tell a neighbor what had happened. The neighbor notified the sheriff's office. The deputies arrived at the scene about an hour and a half to two hours later, just before dusk. They arrested theappellant at the scene and placed him in the Ravalli County jail. At the time of the arrest, Kutnyak was advised of his Miranda rights and he gave the officers statements as to what had happened. Approximately a month after his arrest, appellant asked to see the Sheriff of Ravalli County. When the sheriff arrived at his cell, the appellant began clarifying his statementsmade the day of the shooting. He asked the sheriff to help reenact the shooting and attempted to demonstrate the transactions occurring at that event. This

was done without a Miranda warning or having any attorney present, even though he had previously been assigned counsel. Inpreparation for trial, the trial court ordered the State to make available all of its material in the case. Later, after the jury verdict and sentence, the sheriff's office discovered a file that included a letter from some cross-country skiers complaining thatHayes and his dogshad harrased them. That letter was not received by counsel prior to trial. An investigation revealed that one of the deputy sheriffs had, for investigative purposes, set up a file of people who lived in the county who might be contributing to disturbances. The deputy had permission from the sheriff to have such a file, and it was generally known in the sheriffIs office that the file was available. At the time the requestwasmade for all material the county attorney had concerning the case, this file was overlooked and was notproduced until after trial atwhich time counsel for the appellantmoved for a new trial. Five issues are raised on appeal:(1) Was the jailhouse statement made by appellant to the sheriff admissible? (2) Did the court err by admitting the evidence of appellant's alleged prior threats against an unrelated third party?(3)Did the court err in denying appellant's motion for a new trial following the discovery of a file that was not turned over him? (4)Did the court violate appellant's constitutional rights by forcing him to testify in order to maintain his self-defense instructions? (5) Did the State present sufficient evidence to support a conviction of mitigated deliberate homicide? The first issue is whether there was a violation of appellant's right to presence of counsel during his jailhouse statement to Sheriff Dye. Due to the unusual factsof this case, the trial judge ordered counsel tobrief the law on this point and held a hearing on the same before ruling that the statement to the sheriffwas admissible. It is the appellant's contention that the court erred in permitting Sheriff Dye to testify about a jailhouse statementmade by the appellant because therewas no Miranda warning given, and because counsel was not present at the time of the statement and therefore therewas aviolation of the appellant's Sixth Amendment right to counsel. The District Court properly denied appellant's motion to suppress. We hold that,when the appellant asked to talk to Sheriff Dye, he volunteered the information about his participation in the crime in an atmosphere free from coercion. He had been previously given aMiranda warning atthe time of his first confession. Therefore, it was not

error to admit the evidence of his admissions at trial. Rhode Island

### v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297; Brewer v. Williams (1977), 430U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424; Michigan v. Tucker (1974), 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; Massiah v. United States (1964),377U.S. 201, 84 S.Ct. 1199, 12L.Ed.2d 246; Spano v. United States (1959), 360 U.S. 315, 79 S.Ct. 1202, 3L.Ed.2d 1265; Commonwealthv. -J&hat 377Mass. 552, 387N.E.2d 527; 29 Am.Jur.2d Evidence, section 622. We also hold that the testimony cannot be excluded as the fruit of a suppressed statement. Absent a direct infringement on Fifth Amendment rights, a violation of the rules of Miranda will not support the exclusion of evidence derived from the statement, Tucker, supra. If appellant's statement had been induced by police threats or promises of leniency, the statement would be involuntary and the evidence derived inadmissible. See Muham, supra. However, here the trial court determined, after a hearing, that the statement made was voluntary, and we will not disturb the court's findings. Since the statement cannotbe traced back to either a Fourth or Fifth Amendment violation, we hold that its admissionwasproper. Last but not least the State counters the argument of the appellant that Rule 701, Mont.R.Evid. required the denial of the admission of the sheriff's statement. The appellant argued that the sheriff's statement was a self-serving declaration and was not admissible as proof of the facts asserted, regardless of whether they were implied by acts or conduct,were made orally or whether reduced inwriting, citing 29 Am.Jur.2d Evidence, section 622. Rule 701of the Montana Rules of Evidence states: "If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a)rationallybased on theperception of the witness and (b)helpful to a clearer understanding of his testimony or the determination of the fact and issue."

We hold that the evidence was offered to provide the jury with a complete accounting of the conversation between the appellant and Sheriff Dye. Prejudice is not presumed when error is alleged. If error occurred, then prejudice must be demonstrated. Here no error occurred. If therewas error, it was harmless and not grounds for reversal. See State v. Lapp (Mont. 1983), 658 P.2d 400, 40 St.Rep. 120; Statev. Fitzpatrick (1980),186Mont. 187, 606P.2d 1343. The second issue is whether the District Court erred in allowing testimony, contrary to prior court ruling and

over objection, concerning alleged prior threats by appellant against an unrelated third party. Prior to trial, counsel for the appellant submitted a motion to exclude prejudicial evidence. He requested, in relevant part, that the court instruct the prosecutor and her witnesses not to directly or indirectly mention, refer to, or question, 

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# . . 

# . any matters or things pertaining to Defendant's prior prosecutions, convictions, arrests,and any uncharged criminal acts of Defendant or any defense witnesses on the basis of Rule 404Montana Rules of Evidence and cases thereunder." Rule 404(b), Mont.R.Evid., provides as follows: "Evidence of other crimes, wrongs, or acts is not admissible to prove thecharacter of a person in order to show that he acted in conformity therewith. Itmay, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Prior to the opening of the State's case, the court granted the motion in limine as to prior bad acts of the appellant. During cross-examination, the State, after asking a series of questions concerning the appellant's relationshipwith his neighbors, asked these questions: "Q. [counselfor the State] Specifically, did you ever threaten any of your neighbors? "A. [appellant]Idon't believe Idid. "Q. Never? "A. Never." At that time, counsel for the State asked the trial judge whether she could approach the bench, saying that she intended to get into an area where a preliminary ruling might be needed. Subsequently, respective counsel met in chambers,and the following dialogue took place: "MS. TONON: [counsel for the State] At the commencement there was a motion granted by the court to prevent the prosecution from discussing any prior crimes of the defendant. Before getting in it, so I don't get jumped on until I get into it, I intend to ask Mr. Kutnyak if he had any reason to dislike the Gosses or any reason to dislike the Houstons. Should he answer no, I then intend to indicate that he's telling a falsehood and he obviously did have a reason to dislike the Gosses because of the cow shooting. "MR. LANGTON: [counsel for appellant] Why is it relevant? "MS. TONON: Why is it relevant? The ultimate goal is that every single feeling or commenthe has expressed about Chuck Hayes is what he, himself, wasfeeling, and hejust turned it around and applied it toChuck Hayes. It's obvious that he disliked the Gosses. Based on that, I intend tohave awitnesswho will testify that he threatended to kill the Gosses, since he's just denied making a threat. "THE COURT: This doesn't indicate convictionor crimeby him. "MR. LANGTON: Therewas a chargebrought by theGosses againstMr. Kutnyak's wife, Your Honor, in relation to shooting some cattle. Shewas triedand acquittedby a jury. I don't seeanywhere-- "THE COURT: The incident itselfmay have some relevance. I don't know what you need to bring, under the circumstances, the acquittal out or, if you don't wa.nt that done, you may want tobe theone to bring thatout. "MS. TONON: The incident with Houstons that I anticipate John Houston, on rebuttal, would testify to, depending on what Mr. Kutnyak says, that he was the one that turned inJoe [Kutnyak] for the theftof some lumber and healsosetup a roadblock for some potential poaching, which turned out tobe nothing, but that would be a reason for Joe to have ill feelings against the Houstons, which he allof a sudden explains what Chuck had against theHoustons. "MR. LANGTON: Counsel is trying to slip in, through theback door, awhole string of allegations and alleged crimes which this court has already ruled on that cannotbe brought up. "MS. TONON: Not for the trial but to prove motive or intent. "MR. LANGTON: Why would that prove motive tokillHayes? "THE COURT: As I interpret that statute you cannot bring up alleged crimes committed by thedefendant himself. Now, if you can tiedifferences between these parties that may have resulted in the prosecution of someone else, I see no groundspreventingyou fromdoing so. "MS. TONON: AllI intend, atthispoint, is we tie it up with another witness, whether he had any particular badfeelings against Mr. Houston, and if he saysno, then I would ask ifhe'd had any run-ins with Mr. Houston and his answers tothosegoes to hiscredibility. "MR. LANGTON: That would be putting him in the intolerable position where there is no-- The State intends to bring up prior crimes. The only thing that the State has, there is not any legitimate possible motive tokillHayes. Now, the fact that he had disputes with Mr. Goss over some cattlewithin hisgarden, with Mr. Houston over alleged poaching has nothing todowithanymotivationtokill Hayes and I would object strenuously. "THE COURT: I think it goes to impeachment. I'm going to allow you to proceed on thiswitness." Thereafter on cross-examination, the State elicited from witnesses the fact that some threats had been made by the appellantagainstSteveGoss and JohnHouston. The appellant argues that the court erred inallowing thetestimony thatappellanthad made prior threats tothird parties, in a violation of Rule 404, M0nt.R.Evi.d. The appellant cites Statev. Case (Mont. 1980), 621 P.2d 1066, 37 St.Rep. 2057,and Statev. Just (1979), 184Mont. 262, 602 P.2d 957, in support of his argument that the evidence was admitted without any tendency toestablish a common scheme, planor system; therefore,it was inherentlyprejudicial. The Statecontends thatthetestimonywas givennotto show the similarityof other crimes or wrongs committed by the appellant, but to impeach his claim that he got along with hisneighbors and never threatened them. Doing so it relies on State v. Austad (Mont. 1982), 641 P.2d 1373, 39 St.Rep. 356, for support that evidence may be admissible under "other purposes" as a means of impeachment. In Austad, supra, thisCourt noted: "The rulesof evidencewere not intended to muzzle the State against the defendant'sdeliberate attempts tomislead jury members by lying to them and answering specific questions." 641 P.2d at 1384, 39 St.Rep. at 369. Here the appellant attempted to do just that inhis statements that he got alongwith hisneighbors. No questions were asked concerning prior misdemeanors or felonies. Rather, the question was an attempt to show that he was a not a peaceable member of the community. We hold the evidence admissible for that purpose. State v. Case, supra,and Statev. Just, supra,are distinguishable because those cases involved attempts to show similarity of crimes. The third specification of error is whether the failure of the prosecution to turn over the sheriff's "intelligence" file to appellant's counsel warranted a new trial.In preparation for trial, counsel for the appellant made a demand on the county attorney's office that all information concerning the case be made available to him in preparation for trial. The county attorney's office turned

over everything it had on the case to defense counsel. Several months after the conviction it was discovered that there was a copy of a petition by a number of neighbors in the area concerning Charles Hayes and the fact that he was

an ex-convict and was allowed to have firearms in his possession. In addition, it was found that in the Ravalli County sheriff's office there was an undisclosed "intelligence" file on the decedent, Charles Hayes. The filehad been compiled by sheriff's deputies during 1979 and

was in the custody and control of Deputy Sheriff Pete Clarkson, the chief investigating officer in connection with this case.The "intelligence" file was simultaneously discovered by the assistant county attorney and defense counsel in a search of the sheriffIs department files on January 12, 1983, some fivemonths after the conviction. The appellant,

on the basis of this newly discovered information, filed a motion to stay the appeal and remand the case to the District Court for an evidentiary hearing on whether a new trial was warranted. Following the receipt of briefs and

a hearing before Judge Martin, the trial judge, a new trial

was denied. It should be noted that the file contained the petition by the neighbors and correspondence between the Ravalli County sheriff's office and the sheriff in Pioche, Nevada, where the Hayes family had previously lived and Charles Hayes had been involved in a shooting in a local bar. The appellant claims the State suppressed the "intelligence" file purposely and that the file contained evidence about Hayes' bad character. In addition,appellant alleges that had he had the names of the people that signed the petition, he would have called them as witnesses as to Hayes' bad character. The State replied that the material in this file was cumulative of evidence that came in during the trial and therefore not prejudicial. In addition, the State denied itpurposely suppressed the file in question. As previously noted, this Court ordered a hearing by the trial court on the question raised by the appellant. Following an extended hearing, the trial courtmade findings of fact and conclusions of law, and denied a new trial. In its concl~usionsof law, the court found that: (1)Therewas no deliberate suppression by the sheriffor the county attorney of any of the appellant's exhibits offered and received in the hearing. (2)The failure of the State toprovide these exhibits

was caused by inadvertence and was not prejudicial to the appellant. There was abundant evidence produced by both the appellant and the State, as to what the absent witnesses would or could have testified. Any evidence thatmight have been given by the signatories of the petition would thereforebe cumulative. (3)While the evidence that the signatories might have given relating to the appellant's prior threa.ts and propensities was material to finding the appellant guilty of

a lesser offense of mitigated deliberate homicide, it was not material to the defense of use of justifiable force under the circumstances. The testimony would not alter the court's sentence and judgment. (4)There was no reasonabledoubt of appellant's guilt and the additional evidence that might have been adduced by persons mentioned in the "intelligence file" would merely be cumulative. We have carefully examined the so-called secret file and the evidence contained therein and find no error on the part of the district judge in refusing to grant anew trial. This Court in State v. Higley (Mont. 1980), 621 P.2d 1043, 37 St.Rep. 1942, in ruling on a similar situation, where the trial court refused to grant a new trial concerning alleged new evidence,noted: "Section 46-16-702, MCA, governs the District Court's decision to grant a new trial. The district judge may do so if 'required in the interest of justice.

### ' That decision is based on the discretion of the trial judge and will not beoverturned unless this Court finds an abuse of discretion. State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346 at 351. "This Court has noted that applications for new trials on the ground of newly discovered evidence are not favored, for the reason that the defendant has already had ample opportunity to prepare and present his case. State v. Greeno

(1959), 135 Mont. 580 at 586, 342 P.2d 1052 at 1055. However, in certain instances, the information discoveredmay require a new trial. In Greeno, supra, this Court setout certain rules: "'(1)That the evidencemust have come to the knowledge of the applicant since the trial; "'(2) that it was not through want of diligence that it was not discovered earlier; "'(3) that it is so material that it would probably produce a different result upon another trial.' [Citations omitted.] "Certainly, each case must be decided on its own facts. In the present case, we find that the evidence could have been discoveredwith duediligence." 621P.2d at 1055, 1056, 37 St.Rep. at 1955,1956. The District Court did not abuse its discretion in denying the motion for a new trial. Despite the existence of newly discovered evidence, the judge was correct in finding inferentially under (3) of Greeno, that it was not

so material that it would have produced a different result upon another trial. The next issue concerns whether the District Court erred by compelling the appellant to testify, contrary to his right against self-incrimination or pain of forfeiture of his affirmative defense of justifiable use of force. In the case at bar the appellant asserted the defense of justifiable use of force. He argues that under Rule 404,Mont.R.Evid., the defensemay introduce evidence tending to show the decedent was likely tobe the firstaggressor due to his reputation and specific acts of turbulence or violence. We do not agree with appellant's argument. Self-defense is an affirmative defense and once raised he

assumes the burden of proof. If he desires to raise this defensebut cannot prove it without his own testimony, that ishischoice. Prior to the opening of the State's case, the court stated: "Now, wehad some motionshere, atleast, I'm going to determine early. The one I haven't ruled on, the Motion in Limine, I'm going to deny that motion with qualifications. The Court is going to assume, based upon the notice that has been given, that the Defendant Kutnyak will take the witness stand and thereby lay a foundation for any examination prior to that of other witnesses called by the State or the Defense. If the Defendant should choose not to take the stand, thenhewillrun theriskof being denied an instruction on self-defense. Now, thatjust about compels him totake the standifhewants touse it." Atthat point, the defense counsel neither objected to the ruling of thetrialjudge nor assertedthathisclientcould not be compelled to testify to establish self-defense. In addition, he never stated during trial or on appeal thathe would nothave had hisclienttestifyifthetrialjudge had notmade thatruling. ThisCourt inStatev. Logan (1970), 156Mont. 48, 473 P.2d 833, held thatunder our law the issueof self-defense and the aggressor be raised before evidence of the decedent's prior threats and acts of violence may be admitted. Until self-defense and the question of who was the aggressor isbrought intoevidence, suchevidence isnotrelevant. We noted in both State v. Breitenstein (1979), 180Mont. 503, 591 P.2d 233,and Statev. Jennings (1934),96 Mont. 50, 28 P.2d 448, that the trial judge has the discretion to allow such testimony when the proper foundation has been laid. Here the trial judge determined that a proper foundation for evidence of Hayes' reputation for violence and turbulence was not established at the time of the State's motion in limine. However, he denied the motion with the understanding that defense counsel would later establish the foundation; that appellantwould testify

as to his own fear of apprehension based on Hayes' reputation; and that he would need to have other witnesses testify as to Hayes' violence of which the defendant had no knowledge. Under the circumstances of the homicide here, the facts were such that without the appellant's testimony, he could never have met his burden of proof of self-defense or that Hayes was the aggressor. If the appellant's testimony were to be disregarded in the event error was found, the record could not support reasonabledoubton thepart of any rational juror astohis guilt on the basis of self-defense, and the record would still contain substantial evidence to support the conviction. Therefore,any error in this regard must be disregarded. See State v. Grady (1975), 166 Mont. 168,531P.2d 681. ThisCourt has previously held that there are cases in which the appellant must testify to raise the issue of self-defense and meet this burden of proof. See Logan, supra.Here the trial judge determined that the appellantwould need to testifyas tohispersonal knowledge of Hayes' violent propensities and prior threats in establishing the aggressor, in order to lay the proper foundation for corroborating evidence thereof. The fact that the appellant had to testify or else risk not sufficiently establishing self-defense does not, under these circumstances, create a constitutional denial of his privilege against self-incrimination. Finally, appellant argues that the conviction is not supported by substantial evidence because the State did not prove beyond a reasonable doubt that appellant had no reasonable belief that deadly force was unnecessary. Under the decisions of both this Court and the United States Supreme Court, the standard of review of the sufficiency of evidence is: "Whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." See, Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Doney (Mont. 1981), 636 P.2d 1377, 38 St.Rep. 1707; State v. Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040. "Substantial evidence" is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; Wilson, 631 P.2d at 1278,38 St.Rep. at 1047. Reviewing the record, we find that substantial evidencewaspresented to the jury. In summary the evidence is that: (1)The appellant knowingly or purposely provoked

use of force by Hayes against himself, that he deliberatelyarranged tomanipulateHayes intodrawinghisgun soKutnyak could shoot him. (2)The appellant failed toexhaust every reasonable means toescape the danger. In his statement to Deputy Sheriff Clarkson, made shortly after the homicide, Kutnyak stated: "[I]£I need you Mr. topulloutyour gun mister, topull out your gun and use it on me, then f go ahead do it, if 

### - that'swhat I requireforproof, goahead do it, don't tellme your going to kill me, because you havebeen tellingme that for 2f years. Do it." (3)John Houston, a neighbor of the appellant, had invited Kutnyak to his home two days before the shooting. They talked for four hours, and during that time Kutnyak told him thathewas going toprovoke Hayes intodrawing hisgun, and then he would shoot Hayes. (4) On the day before the shooting, Kutnyak made a statement toDeputy Pete Clarkson indicatingthathe might shootHayes. (5)On themorning of the shooting, Deputy Clarkson, Undersheriff Fisher, and Probation Officer Sally McRae were atKutnyak's house waiting for Hayes to arrive. Clarkson and McRae each testified that Kutnyak described how he planned to kill Hayes. Clarkson testifiedthatKutnyak statedthathewould be sitting to the right of Hayes, then he would utter a phrase thatwould catchHayes off guard. Hewould thengrab Hayes' right arm, draw his automatic and shoot him in the face. McRae testified that Kutnyak described where he and Hayes would be seated, thatKutnyak would make a comment to him that "he should sta.rtwearing a dress," and "something else" to provoke Hayes into reaching for his gun. Then Kutnyak was going tograbHayes' arm with one hand and pull his gun with the other and shoot him in the face. (6)Clarkson, Fisher and McRae, as we11 as the defendant himself, each testified that during that morning, Kutnyak asked about shooting in self-defense. (7) Kutnyak's own testimony establishedprovocation of Hayesjustprior tothe shooting. He knew thatHayes was not tobe trusted and was unpredictable with guns when he drank. He also knew that Hayes did not like the police, that he tended to react violently with persons who discussed him with the police, and thathewould be inphysical danger ifhe letHayes know that he talked to the police about him. (8)Kutnyak also knew that the morning of the shooting, Hayes was in a bad mood and was drinking alcohol and smoking marijuana. (9) After Hayes had been drinking and smoking for two hours, Kutnyak told Hayes for no apparent reason that Houston had said he should wear a dress with his ponytail--Houston had

never said any such thing. According to Kutnyak's testimony, Hayes gotmad, told Kutnyak he was going to kill him and slammed out of the house. Kutnyak followed Hayes outsideand toldhim thatthepolicehad been thereand that he should go to his cabin and stay there. (10) Finally, after shooting Hayes, Kutnyak walked up toHayes' body and tapped theend of Hayes' gunwithhisfingers. Viewing thisevidence and the rules set forth in the above cases, we find that the record contains more than substantial evidence for a rational trier of fact to conclude beyond a reasonable doubt that the appellant deliberatelyprovoked Hayes intoa situation where he could shoothim.The judgment of thetrialcourt is affirmed.

We concur:

Chief Justice \

Justices

I concur intheresult.

Mr. JusticsJohn C. Sheehy, Mr. JusticeFranlc B. Morrison, Jr., aild Mr. JusticeDaniel J. Sheadissentandwillfile written dissents later.DISSENT OFMR. JUSTICEJOHN C. SHEEHY:



### -_-_-----__--_---__-------------------------------- No. 82-462

Statev. Kutnyak

Dated: July 16, 1984Mr. Justice JohnC. Sheehy,dissenting:

My dissent in this case is based principally on the admission of testimony thatKutnyak had threatened twoofhis neighbors,although the DistrictCourt had.earlier granted a motion.

### - in limine thatwould foreclosesuch testimony. The State here violated the court's order by asking prohibited questions of Kutnyak, expecting, and getting

answers towhich it could then claim a right to impeach. In my book, that 

### is trialby trickery. Rule 404(b)

## , M.R.Evid., disallows evidence of other crimes, wrongs or acts to prove the character of the defendant to show that he acted in conformity therewith. Here the State abused that ru1.e. Any threats defendantmay have made to others tend only to show his character,that is, that defendant was a combative or non-peaceful man. Under Rule 404(b), that evidence isnot relevant. The State and many District Courts evince a tendency to allow the jury to review the whole of a defendant's life to look for a particle that supports conviction. A different view of a trial should prevail, one confined to the crime charged, and the facts and circumstances connected to it. Extrinsic evidenceof other acts toprove intentor character should never be allowed unless relevant, unambiguous, and having a logical nexus to the crime chargel. Cohn v. Papke

(9thcir. 1981)

### , 655F.2d 191;U.S. Dotha.rd (11thcir. 1982)

## , ,) 

### R Justice y/