No. 88-156 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSCOTT CLYDE MAGRUDER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial. District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Rarz, Judge presiding. 

COITNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson; Thompson & Sessions, Billings, 

Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

1- 

Harold F. Hanser, County Attorney, Billings, Montana 

Submitted on Briefs: Sept. 1, 1988 

Decided: November 17, 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

This case arises out of the District Court for the 

Thirteenth Judicial District, Yellowstone County. Mr. 

Magruder was convicted of felony assault and mitigated deliberate homicide, in a jury trial. He appeals. We affirm. 

The issues are: 

1. Did the District Court err by allowing the testimony 

of the victim's daughter regarding the telephone call from 

Mr. Magruder to the victim? 

2. Were Mr. Magruder's proximate cause instructions 

properly rejected? 

Mr. Magruder and the victim had become acquainted 

through a woman over whom they had a continuing disagreement. 

On the evening of June 4, 1987, Mr. Magruder placed a telephone call to the victim. The victim's daughter, who originally answered the phone, testified at trial that her father 

seemed worried after the conversation and told her that he'd 

better be "packing a piece" because Mr. Magruder would he 

packing a piece and would be there later. 

Two acquaintances of Mr. Magruder testified that thev 

saw him driving his truck about 10 p.m. that evening. They 

both testified that Mr. Magruder's truck was weaving on the 

road and up onto the curb. The male acquaintance testified 

that after he offered to drive Mr. Magruder to a bar, Mr. 

Magruder pointed a gun at him from his truck and followed him 

for several blocks. The second acquaintance testified that 

she saw a gun pointed at them and that she feared Mr. 

Magruder would shoot them. 

Several persons saw Mr. Magruder park his truck near the 

apartment where the victim and the woman lived. Mr. Magruder 

got out of his truck and attempted to buy cigarettes from one 

witness across the street. Mr. Magruder then got hack into 
his truck. As he did so, the victim drove up. The victim 

walked quickly to the driver's side of Mr. Magruder's truck, 

where he spoke with Mr. Magruder for a few minutes. Several 

witnesses heard a shot fired, after which Mr. Magruder drove 

away. The victim lay on the ground dying from a shotgun 

blast to his abdomen. He had a gun tucked in the waistband 

of his pants. Shortly thereafter, Mr. Magruder was arrested 

and his shotgun was recovered. 

Mr. Magruder testified in his own behalf. He stated 

that the victim approached his truck and asked him to step 

out, then grabbed his shotgun and was shot in the ensuing 

struggle over the gun. The jury convicted Mr. Magruder of 

felony assault as to the two acquaintances who offered him a 

ride and of mitigated deliberate homicide as to the victim. 

This appeal involves only the mitigated deliberate homi.clide 

conviction. 

I 

Did the District Court err by allowing the testimony of 

the victim's daughter regarding the telephone call from Mr. 

Magruder to the victim? 

The defense objects to the followi-ng testimony of the 

victim's daughter: 

Q. Tell us how your father appeared when the 

phone call ended, please. 

A. He appeared very worried, very upset. 

Q. Did your father tell you the substance of 

the telephone call? 

MR. ADAMS: Object again on the grounds it 

is hearsay. 

THE COURT: The objection is overruled. 

A. He told me that Scott had told him-- 

Q. Just answer "yes or no" first. Did he 

tell you? 

A. Yes, he did. 

Q. And when did he do that? 

A. When he hung up the phone. 
Q. So, right after the telephone call? 

A. Yes, right after the telephone call. 

Q. And he was very nervous and concerned? 

A. He was very worried, yes. 

Q. What did he tell you the phone call was 

about? 

A. Well, I had to ask him a few times. And 

he told me that Scott, that he was under the im-- 

pression that Tina was there with Scott, and he 

was, and he said that Scott told him that he wasn't 

trying to take his woman away from him, and that if 

there was any problems that they would settle their 

differences. And my dad said that he told him 

there was no problem. And he told him that he 

would be down later to settle their differences, 

and that he better be packing a piece because Scott 

was packing a piece. 

Q. It was your first statement that Scott 

said he would be down to settle their differences, 

meaning Scott Magruder? 

A. Yes. 

Q. And that he, Scott Magruder would he 

packing a piece? 

A. Yes. 

Q. And that your father had better be packing 

one? 

A. Yes. 

Q. Did you father continue to seem worried? 

A. Yes, he did. 

The defense argues that the testimony about what the victim 

said and about what the victim said Mr. Magruder said is 

inadmissible hearsay. It asserts that the lower court erred 

in admitting this testimony. 

Hearsay is a statement, not made by the declarant while 

testifying at the trial or hearing, which is offered in 

evidence to prove the truth of the matter asserted. Rule 

801(c), M.R.Evid. Generally, hearsay is not admissible into 

evidence. Rule 802, M.R.Evid. However, a number of exceptions to this general rule are set forth in Rules 803 and 

804, M.R.Evid. In review on appeal, determinations as to the 

admissibility of evidence will not be reversed unless the 

trial iudqel s rulincr represents an abuse of dj-scretion. 
State v. Caryl (1975), 168 Mont. 414, 431, 543 P.2d 389, 

398-99. 

The District Court instructed the jury that the above 

testimony was 

not offered to prove the truth of the matter as-- 

serted, but rather to show the victim's then existing state of mind. You are to consider the 

statements only in regard to the victim's state of 

mind and for no other purpose. 

The purpose set forth by the judge suggests that the testimony as to what the victim said would be admissible under the 

exception set forth at Rule 803(3), M.R.Evid.: 

Then-existing mental, emotional, or physical condition. A statement of the declarant's then-existing 

state of mind, emotion, sensation, or physical 

condition (such as intent, plan, motive, design, 

mental feeling, pain and bodily health), but not 

including a statement of memory or belief to prove 

the fact remembered or believed. 

The case which the dissent states parallels the facts 

here, United States v. Brown (D.C.Cir. 1974), 490 F.2d 758, 

differs from the present case in an important respect. In 

that case, the defendant raised no claim of self-defense. 

Brown, 490 F.2d at 780. The court in Brown acknowledged that 

such a defense would make a difference. 

The threshold requirement of admissibility of 

such hearsay statements of fear of defendant in 

homicide cases is some substantial degree of relevance to a material issue in the case. While there 

are undoubtedly a number of possible situations in 

which such statements may be relevant, the courts 

have developed three rather well-defined categories 

in which the need for such statements overcomes 

almost any possible prejudice. The most common of 

these involves defendant' s claim of self-defense as 

justification for the killing. When such a defense 

is asserted, a defendant's assertion that the 

deceased first attacked him may be rebutted by the 

extrajudicial declarations of the victim that he 

feared the defendant, thus rendering it unlikely 
that the deceased was in fact the aggressor in the 

first instance. 

Brown, 490 F.2d at 767. At the first omnibus hearing, Mr. 

Magruder's attorney stated that self-d-efense would be raised. 

At trial, defendant's testimony was that the shooting occurred as the victim pulled on the muzzle of his gun. The 

jury was instructed on self-defense. Brown thus provides 

reasoning to allow the victim's statements into evidence in 

the present case. 

Under the District Court's instruction, the testimony 

about what Mr. Magruder said to the victim was not offered to 

prove its truthfulness (that Mr. Magruder really would be 

carrying a gun), but only to show the victim's state of mind. 

Under that instruction, then, the statement of Mr. Magruder 

to the victim was not hearsay because it was not offered in 

evidence to prove the truth of the matter asserted. 

We hold that the District Court did not abuse its discretion in admitting the daughter's testimony for the purpose 

of showing the victim's state of mind. 

IT 

Were Mr. Magruder's proximate cause instructions properly rejected? 

Mr. Magruder offered four jury instructions on proximate 

causation. He argues that when the court refused to give 

those instructions, he was deprived of the opportunity for 

the jury to consider his theory that the victim's death was a 

result of the victim's own negligence. 

Proximate cause is not a term which is generally used in 

criminal jury instructions under Montana's Criminal Code of 

1973. The Criminal Law Commission Comment to 5 45-2-201, 

MCA, which defines "cause" for purposes of the criminal code, 

states that problems created by concepts of proximate cause 

"should he faced as problems of the culpability required for 
conviction and not as problems of causation." The Court i.s 

not able to envision a case under our present criminal code 

in which a proximate cause instruction would be appropriate. 

If the instructions given to the jury fully and fairly 

convey the elements of criminal homicide, this Court must 

consider that the jury has been properly instructed. State 

v. Collins (1978), 178 Mont. 36, 45, 582 P.2d 1179, 1184. 

Instruction No. 5 given in this case stated that each element 

of the offense must be proven beyond a reasonable doubt. 

That instruction also defined "act," "purposely," "knowingly," and "negligently." Instruction No. 10 set forth the 

statutory definitions of deliberate homicide, mitigated 

deliberate homicide, and negligent homicide. Instructions 

No. 12, 13, and 14 set forth the elements of deliberate, 

mitigated deliberate, and negligent homicide. Instruction 

No. 24 stated that the jury should first consider whether the 

elements of deliberate homicide had been proven. If not, 

they should consider whether mitigated deliberate homicide 

had been proven. Finally, if the elements of mitigated 

deliberate homicide had not been proven, the jury was to 

consider the issue of negligent homicide. Since the jury 

found Mr. Magruder guilty of mitigated deliberate homicide, 

it never reached consideration of negligent homicide. 

We conclude that the instructions given the jury in this 

case fully and fairly conveyed the elements of criminal 

homicide. We hold that the refusal of Mr. Magruder's proposed instructions on proximate cause was not error. 

Affirmed. 
Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent from the approval of the hearsay statement 

which was admitted to evidence in this case. 

The majority's handling of the hearsay problem skims too 

lightly over the very problematic nature of the testimony. 

Professor Moore reports that when the federal 

counterpart of Rule 803 (3) came before the House, j.t was 

approved under the following limitation: 

Rule 803 (3) was approved in the form submitted by 

the court to Congress. However the Committee 

intends that the rule be construed to limit the 

doctrine of Mutual Life Insurance Company v. 

Hillmon (1892), 145 U.S. 285, 295-300, so as to 

render statements of intent by a declarant. 

admissible only to prove his future conduct, not 

the future conduct of another person. 

11 Moore's Federal Practice 11 803(3) [21 (2d ed. 1948) at 

VIII-80. 

In Hillmon, the United States Supreme Court held letters 

from one Walters expressing intent to travel with Hillmon 

were admissible as circumstantial proof both that Walters 

went and that he went with Hillmon. The report of the House 

Committee indicates the intent of that Committee that the 

ruling of Hillmon was the limit of the bounds as far as 

admitting hearsay was concerned. 

Like declarations purporting to show the victim's state 

of mind have been rejected. In United States v. Kaplan (2d 

Cir. 19741, 510 F.2d 606, a conviction for possession or sale 

of narcotics was reversed because the Drug Enforcement Agent 

was allowed to testify that a declarant out of court had 

spoken of the defendant as "his connection." Despite a 

careful instruct.ion limiting this testimony to proof of the 
agent's state of mind, the court of appeals held the 

declaration too prejudicial to be admitted. 

In United States v. Brown (D.C. 1973), 490 F.2d 758, 

there are facts that parallel exactly what occurred in the 

case at bar. In Brown, the testimony by the wife of a 

murdered man that her husband had said he feared the 

defendant might kill him was held admissible under Rule 

803(3) to prove the victim's state of mind, but excluded 

nonetheless as too prejudicial, under Rule 403. 

The majority discounts the preced-ential authority of 

United States v. Brown, supra, pointing out that testimony of 

an oral statement such as this case concerns is admissible 

where the defendant relies on self-defense. Two facets of 

this case belie that distinction. First, Magruder did not 

rely on self-defense; rather, he based his defense upon 

accidental discharge of a firearm. Second, the facts 

strongly show that the victim himself was the aggressor in 

that he drove his vehicle next to Magruder's truck, and then, 

"packing a piece," he went to the driver's side of Magruder's 

vehicle. The only remaining testimony of what occurred there 

is from Magruder himself who stated that the victim grabbed 

his shotgun which was discharged in the ensuing struggle over 

the gun. 

Now, it is also true that where the defense is that of 

accidental discharge, testimony of oral statements regarding 

the victim's state of mind are admissible, if the state of 

mind of the victim is an issue. United States v. Brown, 490 

F.2d 758, 767. However, the question then becomes even if 

the evidence is relevant, should it not be refused because of 

the overwhelming prejudicial effect as against the defendant? 

The admissibility of these kinds of statements is one of the 

most vexing problems facing courts in these types of cases, 

and since both the majority here and this writer, in dissent, 
rely on United States v. Brown, it is recommended to the 

reader that substantial study be given to the Brown case. In 

it, there is a rather elaborate dissection of the problems 

involved, and of their proper resolution. It is especially 

true in Brown that the court set out the reasons why a 

limiting instruction which tells the jury that the testimony 

can only be used to determine the state of mind of the victim 

is in most cases impossible to follow. 

For example: 

Quite a number of courts have confronted facts 

similar to those here involving hearsay statements 

made by the victim of a homicide which 

inferentially implicate the defendant. Such 

statements by the victims often include previous 

threats made by the defendant towards the victim, 

narrations of past incidents of violence on the 

part of the defendant or general verbalizations of 

fear of the defendant. While such statements are 

admittedly of some value in presenting to the jury 

a complete picture of all the facts and 

circumstances surrounding the homicide, it is 

generally agreed that their admissibility must be 

determined by a careful balancing of their 

probative value against their prejudicial effect. 

Courts have recognized that such statements are 

fraught with inherent dangers and require the 

imposition of rigid limitations. The principal 

danger is that the jury will consider the victim's 

statement of fear as somehow reflecting on 

defendant's state of mind rather than the 

victims--i .e. as a true indication of defendant's 

intentions, actions or culpability. Such 

inferences are highly improper and where there is a 

strong likelihood that they will be drawn by the 

jury, the danger of injurious prejudice is 

particularly evident. (Emphasis in original. 1 

It is on the point of exclusion even when the testimony 

is relevant, the court in United States v. Rrown speaks out 

strongly: 
There are number of other cases which have allowed 

in testimony of this type on the basis of various 

errors in reasoning or simple lack of concern. One 

of the principal problems which brings this about 

is a court's understandable eagerness to find an 

"easy" rule, simple in operation. This leads to a 

tendency to adopt a mechanistic approach devoid of 

analysis. For example, in State v. Radabaugh, 93 

Idaho 727, 471 P.2d 582 (1970), the Idaho Supreme 

Court, dealing with a hearsay declaration of fear 

on the part of the deceased victim, simply 

identified the statement as probative on the issue 

of the state of mind of the declarant, referred to 

the fact that a limiting instruction had been given 

and then pronounced it admissible in a conclusory 

and offhanded manner. Such a simplistic approach 

sidesteps any preliminary determination of 

relevance and does not begin to weigh the possible 

prejudice contained in such statements. 

The real problem with the approved testimony in this 

case is that under cover of showing the victim's state of 

mind, the testimony points instead to the victim's 

declaration of Magruder's state of mind. The daughter's 

testimony in this case was hearsay since she received it from 

the victim, and because what the victim reported to her was a 

further hearsay statement from Magruder, the entire testimony 

consisted of hearsay within hearsay. Under Rule 805, hearsay 

included within hearsay is not admissible unless each part of 

the combined statement conforms with the exceptions to the 

hearsay rule as provided in Rules of ~vidence. Here, Scott 

Magruder's reported statement to the victim cannot be brought 

within any exception to the hearsay rule. 

The extremely prejudicial effect of the testimony could 

not be cured by any instruction of the District Court to the 

jury. This is a case for the application of the "hot poker" 

rule, that is, that the effect of being rammed by a hot poker 

is not cured by the v~ithdrawal of the poker. As Justice 
Cardozo said in Shepard v. United States (1933), 290 U.S. 96, 

. . . It will not do to say that the jury might 

accept the declarations for any light that they may 

cast upon the existence of a vital urge, and reject 

them to the extent that they charged the death to 

someone else. Discrimination so subtle is a feat 

beyond the compass of ordinary minds. The 

reverberating clang of those accusatory words would 

drown all weaker sounds. It is for ordinary minds, 

and not for psychoanalysts, that our rules of 

evidence are framed . . . 

I would hold the admission of the hearsay evidence in 

this case as reversible error, and remand for a new trial. 

& s , ,2Lkq ,?ustice ii 

Mr. Justice William E. Hunt, Sr.: 

I concur in the dissent of Mr. Justice Sheehy.