No. 32-462 

IN THE SUPREME COURT OF THE STATE OF MONTAPJA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOSEPH KUTNYAR, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Arthur B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jeffrey H. 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: $$i 3 = 

- Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

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 to thirty years in the State Prison. 

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 to the State of 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 this building period, his wife Susan worked in Nevada 

and visited him periodically to assist in the building of 

the cabin. She did not move to Montana until February of 

1979. 

According to the record, the first contact that Hayes 

and his wife had with any member of the Kutnyak family was 

in the late spring of 1979 when they met Debbie Kutnyak in 

Darby, Montana. They felt sorry for her inasmuch as she was 

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 stayed 
at the cabin for some time. Susan assisted Debbie and her 

child in making arrangements to get housing. Debbie told 

the Hayes family that her husband had been killed in a mine 

accident in Colorado. This proved to be false, for a short 

time later, after Debbie located a cabin in the Hughes 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 

arriving after dark one night, shouting and shooting at the 

cabin that housed the appellant's family. According to the 

appellant and his wife, this went on for several hours 

during the night. The next morning he and his wife went to 

town to see the county attorney to have aggravated assault 

charges filed against Hayes and his companions. As a 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 in his possession and was directed not to have more 

than .05% blood alcohol count at any time during his 

probation period. 

Following his conviction and placement on parole, 

there were numerous incidents testified to by the appellant, 

Susan Hayes 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 angry 
and hostile toward law enforcement." She had an arrangement 

with him that he would report in once a month. During the 

winter months when the area in which he lived was snowed-in, 

he would send a report out by mail which the Postal Service 

covered twice a week. 

In addition to the above facts concerning the 

hostility of Hayes and his violations of the parole 

provisions, there was testimony by the sheriff's office that 

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 tendencies concerning the property near 

his cabin involving the use of his Doberman dog. 

Following the 1979 aggravated assault incident, the 

record shows that the Kutnyak and the Hayes families did not 

have any contact with each other until the summer of 1980, 

when they met at a hot springs just over the divide from 

their property and decided to try and reestablish a friendly 

relationship. From that time until Hayes' death, there was 

contradictory testimony as to the relationship between the 

parties. Hayes' wife testified in detail as to the contacts 

between the parties, including but not limited to the 

exchange of presents on birthdays and Christmas, exchange of 

dinners, hunting trips and trades made for supplies and for 

marijuana. Hayes grew marijuana on their plots for personal 

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 men 
were out hunting. There was also testimony from other State 

witnesses showing that the two men 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 related many 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 Pete Clarkson of the Ravalli County 

Sheriff's office. Schultz told him that there might be 

problems brewing in the West Fork area. 

Clarkson traveled to the West Fork shortly thereafter 

to meet with Ken Schultz and 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 

than what had 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, it was agreed that the sheriff's 

office and the probation office still lacked probable cause 

for a search warrant, and a meeting at the appellant's home 

was set up for February 19, the date of the homicide. The 

purpose of this meeting 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 

they would 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 told McRae and Clarkson in detail 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 to bad mouth him and provoke him into drawing his 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 she had 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 factors 
testified 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 

that day, the appellant should not answer the door. 

According to the appellant's statement, Hayes drove up 

on his snowmobile, parked it near the mailboxes, 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 his hair, 

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, 

as Hayes was about to leave, Hayes insulted him 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 his pants. 

The testimony concerning what happened, of course, is 

that of the appellant. He testified that after Hayes got 

next to the snowmobile, he pulled out his gun and shot Hayes 

five times. He then claimed, in a statement made to the 

sheriff, that he walked over to Hayes, tapped Hayes' gun 

back into his holster, 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 the 
appellant 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 statements made 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. 

In preparation 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 that Hayes and his dogs had 

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 sheriff Is office that the file was available. 

At the time the request was made for all material the county 

attorney had concerning the case, this file was overlooked 

and was not produced until after trial at which time counsel 

for the appellant moved 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 

facts of this case, the trial judge ordered counsel to brief 

the law on this point and held a hearing on the same before 

ruling that the statement to the sheriff was admissible. It 

is the appellant's contention that the court erred in 

permitting Sheriff Dye to testify about a jailhouse 

statement made by the appellant because there was no Miranda 

warning given, and because counsel was not present at the 

time of the statement and therefore there was a violation 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 a Miranda warning at 
the 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), 430 U.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), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246; 

Spano v. United States (1959), 360 U.S. 315, 79 S.Ct. 1202, 

3 L.Ed.2d 1265; Commonwealth v. -J&hat 377 Mass. 552, 

387 N.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 cannot be traced back 

to either a Fourth or Fifth Amendment violation, we hold 

that its admission was proper. 

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 in 
writing, citing 29 Am.Jur.2d Evidence, section 622. Rule 

701 of 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) rationally based on the perception 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 there was 

error, it was harmless and not grounds for reversal. See 

State v. Lapp (Mont. 1983), 658 P.2d 400, 40 St.Rep. 120; 

State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.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, " . . . 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 404 Montana 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 the 
character of a person in order to show 

that he acted in conformity therewith. 

It may, 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 

relationship with his neighbors, asked these questions: 

"Q. [counsel for the State] Specifically, 

did you ever threaten any of your 

neighbors? 

"A. [appellant] I don't believe I did. 

"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 comment he has expressed about 

Chuck Hayes is what he, himself, was 
feeling, and he just turned it around and 

applied it to Chuck Hayes. It's obvious 

that he disliked the Gosses. Based on 

that, I intend to have a witness who will 

testify that he threatended to kill the 

Gosses, since he's just denied making a 

threat. 

"THE COURT: This doesn' t indicate 

conviction or crime by him. 

"MR. LANGTON: There was a charge brought 

by the Gosses against Mr. Kutnyak's wife, 

Your Honor, in relation to shooting some 

cattle. She was tried and acquitted by a 

jury. I don't see anywhere-- 

"THE COURT: The incident itself may 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 to be the one to 

bring that out. 

"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 in Joe [Kutnyak] for the 

theft of some lumber and he also set up a 

roadblock for some potential poaching, 

which turned out to be nothing, but that 

would be a reason for Joe to have ill 

feelings against the Houstons, which he 

all of a sudden explains what Chuck had 

against the Houstons. 

"MR. LANGTON: Counsel is trying to slip 

in, through the back door, a whole string 

of allegations and alleged crimes which 

this court has already ruled on that 

cannot be brought up. 

"MS. TONON: Not for the trial but to 

prove motive or intent. 

"MR. LANGTON: Why would that prove 

motive to kill Hayes? 

"THE COURT: As I interpret that statute 

you cannot bring up alleged crimes 

committed by the defendant himself. Now, 

if you can tie differences between these 

parties that may have resulted in the 

prosecution of someone else, I see no 

grounds preventing you from doing so. 

"MS. TONON: All I intend, at this point, 

is we tie it up with another witness, 

whether he had any particular bad 
feelings against Mr. Houston, and if he 

says no, then I would ask if he'd had any 

run-ins with Mr. Houston and his answers 

to those goes to his credibility. 

"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 to kill Hayes. Now, the 

fact that he had disputes with Mr. Goss 

over some cattle within his garden, with 

Mr. Houston over alleged poaching has 

nothing to do with any motivation to kill 

Hayes and I would object strenuously. 

"THE COURT: I think it goes to 

impeachment. I'm going to allow you to 

proceed on this witness." 

Thereafter on cross-examination, the State elicited from 

witnesses the fact that some threats had been made by the 

appellant against Steve Goss and John Houston. 

The appellant argues that the court erred in allowing 

the testimony that appellant had made prior threats to third 

parties, in a violation of Rule 404, M0nt.R.Evi.d. The 

appellant cites State v. Case (Mont. 1980), 621 P.2d 1066, 

37 St.Rep. 2057,and State v. Just (1979), 184 Mont. 262, 602 

P.2d 957, in support of his argument that the evidence was 

admitted without any tendency to establish a common scheme, 

plan or system; therefore,it was inherently prejudicial. 

The State contends that the testimony was given not to 

show the similarity of other crimes or wrongs committed by 

the appellant, but to impeach his claim that he got along 

with his neighbors 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, this Court noted: "The rules of evidence were 

not intended to muzzle the State against the defendant's 
deliberate attempts to mislead 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 in his statements that he got along with his neighbors. 

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 State v. 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 

file had 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 sheriff Is department files on January 12, 

1983, some five months 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 it purposely 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 court made findings 

of fact and conclusions of law, and denied a new trial. In 

its concl~usions of law, the court found that: 

(1) There was no deliberate suppression by the sheriff 
or the county attorney of any of the appellant's exhibits 

offered and received in the hearing. 

(2) The failure of the State to provide 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 that might have 

been given by the signatories of the petition would 

therefore be 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 reasonable doubt 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 a new 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 be 
overturned 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 discovered may 

require a new trial. In Greeno, supra, 

this Court set out certain rules: 

"'(1) That the evidence must 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 

discovered with due diligence." 621 P.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 defense may introduce evidence tending to 

show the decedent was likely to be the first aggressor 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 

defense but cannot prove it without his own testimony, that 

is his choice. 

Prior to the opening of the State's case, the court 

stated: 

"Now, we had some motions here, at least, 

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, then he will run the risk of being 

denied an instruction on self-defense. 

Now, that just about compels him to take 

the stand if he wants to use it." 

At that point, the defense counsel neither objected to the 

ruling of the trial judge nor asserted that his client could 

not be compelled to testify to establish self-defense. In 

addition, he never stated during trial or on appeal that he 

would not have had his client testify if the trial judge had 

not made that ruling. 

This Court in State v. Logan (1970), 156 Mont. 48, 473 

P.2d 833, held that under our law the issue of 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 is brought into evidence, such evidence is not 
relevant. We noted in both State v. Breitenstein (1979), 

180 Mont. 503, 591 P.2d 233,and State v. 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 appellant would 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 reasonable doubt on the part of any 

rational juror as to his 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, 531 P.2d 681. 

This Court 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 appellant 
would need to testify as to his personal 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 

evidence was presented 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 deliberately 
arranged to manipulate Hayes into drawing his gun so Kutnyak 

could shoot him. (2) The appellant failed to exhaust every 

reasonable means to escape the danger. In his statement to 

Deputy Sheriff Clarkson, made shortly after the homicide, 

Kutnyak stated: 

"[I]£ I need you Mr. to pull out your gun 

mister, to pull out your gun and use it 

on me, then f - go ahead do it, if 

that's what I require for proof, go ahead 

do it, don't tell me your going to kill 

me, because you have been telling me that 

for 2 f 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 that he was going to provoke Hayes into drawing his gun, 

and then he would shoot Hayes. (4) On the day before the 

shooting, Kutnyak made a statement to Deputy Pete Clarkson 

indicating that he might shoot Hayes. (5) On the morning of 

the shooting, Deputy Clarkson, Undersheriff Fisher, and 

Probation Officer Sally McRae were at Kutnyak's house 

waiting for Hayes to arrive. Clarkson and McRae each 

testified that Kutnyak described how he planned to kill 

Hayes. Clarkson testified that Kutnyak stated that he would 

be sitting to the right of Hayes, then he would utter a 

phrase that would catch Hayes off guard. He would then grab 

Hayes' right arm, draw his automatic and shoot him in the 

face. McRae testified that Kutnyak described where he and 

Hayes would be seated, that Kutnyak would make a comment to 

him that "he should sta.rt wearing a dress," and "something 

else" to provoke Hayes into reaching for his gun. Then 

Kutnyak was going to grab Hayes' 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 established provocation of Hayes just prior to the 

shooting. He knew that Hayes was not to be 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 that he would be in physical danger if he let Hayes 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 got mad, told Kutnyak he was going to kill 

him and slammed out of the house. Kutnyak followed Hayes 

outside and told him that the police had been there and that 

he should go to his cabin and stay there. (10) Finally, 

after shooting Hayes, Kutnyak walked up to Hayes' body and 

tapped the end of Hayes' gun with his fingers. 

Viewing this evidence 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 

deliberately provoked Hayes into a situation where he could 

shoot him. 
The judgment of the trial court is affirmed. 

We concur: 

Chief Justice \ 

Justices 

I concur in the result. 

Mr. Justics John C. Sheehy, Mr. Justice Franlc B. Morrison, 

Jr., aild Mr. Justice Daniel J. Shea dissent and will file 

written dissents later. 
DISSENT OF MR. JUSTICE JOHN C. SHEEHY: 

-_-_-----__--_---__-------------------------------- 

No. 82-462 

State v. Kutnyak 

Dated: July 16, 1984 
Mr. Justice John C. Sheehy, dissenting: 

My dissent in this case is based principally on the 

admission of testimony that Kutnyak had threatened two of his 

neighbors, although the District Court had. earlier granted a 

motion. - in limine that would foreclose such testimony. 

The State here violated the court's order by asking 

prohibited questions of Kutnyak, expecting, and getting 

answers to which it could then claim a right to impeach. In 

my book, that is trial by 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 defendant may 

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 is not 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 evidence of other acts to prove intent or character 

should never be allowed unless relevant, unambiguous, and 

having a logical nexus to the crime chargel. Cohn v. Papke 

(9th cir. 1981) , 655 F.2d 191; U.S. Dotha.rd (11th cir. 1982) , 

,) R 

Justice 

y/