DA 08-0137

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 450

STATE OF MONTANA,

Plaintiff and Appellee,

v.

JASON LEE SCHMIDT,

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,

In and For the County of Silver Bow, Cause No. DC-07-38

Honorable Brad Newman, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Roberta R. Zenker, Assistant

Appellate Defender; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant

Attorney General; Helena, Montana

Eileen Joyce, Silver Bow County Attorney; Samm Cox and Molly Maffei,

Deputy County Attorneys; Butte, Montana

Submitted on Briefs: September 23, 2009

Decided: December 31, 2009

Filed:

__________________________________________

Clerk

December 31 2009
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Justice Brian Morris delivered the Opinion of the Court.

¶1 Jason Lee Schmidt (Schmidt) appeals his conviction in the Second Judicial District

Court, Silver Bow County, for mitigated deliberate homicide. We affirm.

¶2 We review the following issues on appeal:

¶3 Did the jury instructions and verdict form at trial render Schmidt’s conviction for 

mitigated deliberate homicide a “legal impossibility” under Demontiney?

¶4 Did the District Court properly deny Schmidt’s request for a lesser included offense

instruction?

¶5 Did the District Court properly deny Schmidt’s motion to suppress evidence of his

confession?

¶6 Did the District Court properly deny Schmidt’s motion in limine to allow evidence

that the victim had wielded a knife?

¶7 Did the District Court properly deny Schmidt’s request for a mistrial?

¶8 Did the District Court properly exclude a photograph of the victim offered by

Schmidt?

¶9 Did the District Court properly deny Schmidt’s motion for a directed verdict?

¶10 Did the District Court properly instruct the jury on weapons enhancement?

¶11 Did the District Court properly impose restitution for the victim’s funeral expenses?

FACTUAL AND PROCEDURAL BACKGROUND

¶12 James Correia (Correia) died from stab wounds outside the Irish Times bar in Butte

on March 24, 2007. Correia had gone to the Irish Times with his friend Chase Hanley
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(Hanley). Correia and Hanley arrived at the Irish Times at approximately 12:30 a.m. Correia

and Hanley earlier had visited three other bars. Correia was visiting from out of town and

told Hanley that he wanted to see the “bad places” in Butte.

¶13 Schmidt arrived at the Irish Times around midnight with his wife, his brother, and a

group of friends. The group had visited several bars en route. They had been celebrating

Schmidt’s wife’s birthday.

¶14 Gunnar Fitzpatrick (Fitzpatrick) was working asthe bartender and bouncer that night

at the Irish Times. Fitzpatrick noticed Correia immediately because of the way he was

moving and interacting with the other patrons. Fitzpatrick left his position behind the bar

more than once to “defuse” potential altercations between Correia and other patrons.

Fitzpatrick ultimately asked Correia and Hanley to leave.

¶15 Fitzpatrick also had to intervene in an argument between two women. Correia got

involved in an altercation with the two women as he and Hanley were leaving. Hanley

claimed that one ofthe women slapped Correia, and that, in response, Correia had pulled her

hair and caused her to fall. Schmidt’s wife claimed that Correia punched her in the face.

Another witness corroborated Schmidt’s wife’s claim, but added that Schmidt’s wife had

slapped Correia first.

¶16 Accounts differ as to who instigated the confrontation, who was involved, and what

Correia did. Most of the witnesses had been drinking. Many were unclear about what they

saw. All the witnesses agreed that a brawl involving a number of people took place. Will

Smith (Smith), a witness who was at the Irish Times, testified that Schmidt’s brother had
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tried to assault Correia. Smith tried to hold Schmidt’s brother away from Correia, but two

women grabbed Smith by the hair to make him let go. Smith testified that both Schmidt and

his brother were trying to fight Smith in the middle of the bar. Bouncers broke up the fight

and threw them out.

¶17 Fitzpatrick saw Correia at the center of the fight. Correia had Schmidt in a headlock

and was “throwing uppercuts at him.” Fitzpatrick attempted to break up the fight. Schmidt

threw a punch that hit Fitzpatrick on the shoulder. Fitzpatrick finally separated the twomen.

Schmidt continued to yell profanities at Correia. Fitzpatrick escorted Correia and Schmidt

outside. Correia gestured at one of the bouncers as though to challenge him to a fight.

¶18 Smith testified that Correia was “trying to stay neutral” outside the bar. Correia and

Hanley backed toward their car, but two ofthe women fromthe bar followed them. Correia

and the women continued to yell at each other. Correia took off hisshirt and attempted to hit

one of the women with it. The second woman responded by shoving Correia. Correia hit

her.

¶19 Schmidt saw this exchange and “tried to assault” Correia. Schmidt claimed thatwhen

he saw Correia hit the woman, he called Correia “a piece of shit,” and that Correia had

responded by attacking him. Correia and Schmidt started fighting. The fight quickly

devolved “into something of a glorified wrestling match.” Neither fighter had the upper

hand as both Schmidt and Correia were merely “jockeying for position.”

¶20 Correia was on top of Schmidt. Schmidt pulled a knife out of his right front pocket,

flipped it open, and stabbed Correia in the leg. Schmidt stabbed Correia three more times,
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once in the lower abdomen, and twice in the chest. Schmidt stabbed with such force that the

hilt ofthe knife left abrasions on Correia’sskin. Schmidt’s knife blade penetrated Correia’s

diaphragm and his heart. Correia climbed off Schmidt. He stood for a moment before

limping toward Hanley.

¶21 Correia held hisright side as he walked. Correia collapsed. Hanley noticed Correia’s

wounds and saw lots of blood. Someone applied pressure to Correia’s wounds with a tee

shirt. Another person called 911. The responding officer called for medical backup. The

officer accompanied Correia to the hospital. Correia died shortly after arriving at the

emergency room.

¶22 Schmidt came at Smith with a knife after Schmidt and Correia had stopped fighting.

Smith ducked out of the way and took off. Zachary Hayes knew Schmidt from high school

and was at the Irish Times. Hayes saw Schmidt pacing back and forth in the alley, and heard

him swearing. Schmidt fled down the alley as Hayes approached him. Schmidt threw the

knife into a dumpster and ran toward Butte High School. A friend called Schmidt on his cell

phone and picked himup near the school. Schmidt threw his cell phone out the car window.

Schmidt burned his bloody clothes in a wood stove when he got home. Schmidt took a

shower, grabbed another knife, and went for a drive.

¶23 Schmidt initially denied any wrongdoing to police. He eventually admitted to

stabbing Correia. Schmidt claimed that Correia had him pinned and was striking him

repeatedly. Schmidt stated that he was afraid Correia was going to kill him. Schmidt

claimed that he was trying to defend himself. Schmidt lied to the officers about his clothes.
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He told the officers that they would find the clothing that he had been wearing during the

fight in his bedroom, along with the knife that he had been carrying. In fact, he had burned

the clothes in his woodstove and he had thrown the knife into a dumpster.

¶24 Schmidt moved to suppress evidence of his confession and evidence obtained duringa

search of his home. Schmidt claimed that police officers had given him deficient Miranda

warnings. Schmidt also moved for a new trial in response to a potential juror’s comment

about a witness for the defense. Schmidt argued that the potential juror’s comment had

tainted the jury panel. The District Court denied Schmidt’s motions.

¶25 The District Court issued thirty-three jury instructions during the trial. The court

instructed the jury to consider any mitigating factors at the same time that it considered

whether the State had established all of the elements of deliberate homicide. The court also

instructed the jury on the lesser included offense of mitigated deliberate homicide at

Schmidt’srequest. The court used a verdict formsimilar to one Schmidt had proposed. The

jury convicted Schmidt of mitigated deliberate homicide following a seven day trial. The

jury indicated on the verdict form that it found Schmidt not guilty of deliberate homicide.

The District Court imposed a sentence that included a weapons enhancement. The court

suspended the weapons enhancement in exchange for Schmidt’s having agreed to pay

$24,347.18 in restitution to Correia’s family.

STANDARD OF REVIEW

¶26 We review a district court’sjury instructionsto determine whether the instructions, as

a whole, fully and fairly instruct the jury on the applicable law. State v. Hudson, 2005 MT
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142, ¶ 10, 327 Mont. 286, 114 P.3d 210. The district court has broad discretion in

formulating jury instructions. Hudson, ¶ 10. The instructions must prejudicially affect the

defendant’s substantial rights to constitute reversible error. Hudson, ¶ 10.

¶27 We review for clear error a district court’s denial of a motion to suppress evidence.

State v. Thomas, 2008 MT 206, ¶ 9, 344 Mont. 150, 186 P.3d 864. We review for an abuse

of discretion a district court’s grant or denial of a motion in limine. Tin Cup County Water v.

Garden City Plumbing & Heating, Inc., 2008 MT 434, ¶ 46, 347 Mont. 468, 200 P.3d 60.

We review for abuse of discretion a district court’s denial of a motion for a mistrial. State v.

Dubois, 2006 MT 89, ¶ 33, 332 Mont. 44, 134 P.3d 82. We review for abuse of discretion a

district court’s evidentiary ruling. State v. Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, 119

P.3d 1194.

¶28 We review de novo a district court’s denial of a motion for a directed verdict. State v.

Marler, 2008 MT 13, ¶ 20, 341 Mont. 120, 176 P.3d 1010. We review de novo the legality

of a sentencing condition. State v. Park, 2008 MT 429, ¶ 14, 347 Mont. 462, 198 P.3d 321.

We review for legality only a sentence that includes at least one year of incarceration. State

v. Perkins, 2009 MT 150, ¶ 8, 350 Mont. 387, 208 P.3d 386.

DISCUSSION

¶29 Did the jury instructions and verdict form at trial render Schmidt’s conviction for

mitigated deliberate homicide a “legal impossibility” under Demontiney?

¶30 A person commits the offense of mitigated deliberate homicide when they satisfy all

ofthe elements necessary for deliberate homicide “but [do]so underthe influenceofextreme
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mental or emotional stress for which there is reasonable explanation or excuse.” Section 45-

5-103(1), MCA. Schmidt argues that the jury’s acquittal on the charge of deliberate

homicide and conviction of mitigated deliberate homicide created a “legal impossibility” that

requires his immediate release from custody.

¶31 ThisCourt determined a similar result to be “truly legally inconsistent” inDemontiney

v. Mont. Twelfth Judicial Dist. Court, 2002 MT 161, 310 Mont. 406, 51 P.3d 476. The State

charged Demontiney with deliberate homicide. The district court instructed the jury on

mitigated deliberate homicide over Demontiney’s objection. Demontiney, ¶ 5. The district

court instructed the jury first to consider the charge of deliberate homicide. Jurors were to

consider the lesser charge of mitigated deliberate homicide only if they reached a verdict of

not guilty, or were unable to agree, on the greater charge. Demontiney, ¶ 7. The jury entered

a verdict of not guilty to deliberate homicide and guilty to mitigated deliberate homicide.

Demontiney argued that the jury’s verdict was “truly legally inconsistent.” Demontiney, ¶8.

¶32 This Court reasoned that “a finding of guilty on mitigated deliberate homicide

requires a finding of every element of deliberate homicide plus an additional finding of

extreme mental or emotional stress.” Demontiney, ¶ 20. Both the jury instructions and the

verdict form directed the jury to consider the lesser charge only if the jury found the

defendant not guilty of the greater charge. Demontiney, ¶ 7. This Court assumed that the

jury first acquitted Demontiney on the deliberate homicide charge and concluded that there

was “no logical way the jury could acquit on deliberate homicide and then consider

mitigated deliberate homicide.” Demontiney, ¶ 16 (emphasis in original). The jury’s
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acquittal on the charge of deliberate homicide precluded a conviction on mitigated deliberate

homicide. Demontiney, ¶ 24.

¶33 Justice Leaphart agreed that the district court’sinstruction incorrectly applied the law.

Demontiney, ¶ 32 (Leaphart, J. dissenting). He argued, however, that Demontiney had not

been prejudiced by this error. Demontiney, ¶ 33 (Leaphart, J. dissenting). Justice Leaphart

pointed out that the jury’s not guilty verdict to the offense of deliberate homicide did not

necessarily mean that Demontiney had not committed all of the elements of deliberate

homicide. Demontiney, ¶ 35 (Leaphart, J. dissenting). The jury likely simply determined

that Demontiney had committed all of the elements of deliberate homicide while acting

under extreme mental or emotional stress. Demontiney, ¶ 35 (Leaphart, J. dissenting). The

Court could not discern from the verdict form whether the jury first had acquitted

Demontiney of deliberate homicide, or whether the jury first had convicted Demontiney of

mitigated deliberate homicide. Demontiney, ¶ 35 (Leaphart, J. dissenting). The Court

rejected this argument on the basis that the jury instructions incorrectly directed the jury to

consider first the more serious deliberate homicide charge. Demontiney, ¶ 19.

¶34 The District Court did not commit the same error in this case. The court’s jury

instruction on mitigated deliberate homicide directed the jury to consider whether Schmidt

had committed all ofthe elements of deliberate homicide while acting under the influenceof

extreme mental or emotional stress. If the jury found that Schmidt had committed all of the

elements of deliberate homicide without the mitigating circumstance of extreme mental or

emotional stress, it was to find Schmidt guilty of deliberate homicide. The court’s
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instruction differed functionally from Schmidt’s in that it omitted the concluding direction

first to consider the verdict on the greater offense, and to consider mitigated deliberate

homicide only if it were unable to reach a verdict on deliberate homicide. Schmidt’s

proposed instruction erroneously would have directed the jury first to consider the deliberate

homicide charge. Schmidt’s proposed instruction further would have directed the jury to

consider mitigated deliberate homicide only if the jury were unable to reach a verdict on

deliberate homicide. Schmidt’s proposed instruction thus created precisely the type ofissue

that thisCourt addressed in Demontiney. The District Court avoided this potential pitfall by

formulating its own instruction.

¶35 The District Court’s correct instruction must be distinguished from the verdict form

proposed by Schmidt and adopted by the court. Unlike the District Court’sjury instruction,

the verdict formdirected the jury to enter a verdict for mitigated deliberate homicide only if

it first found Schmidt not guilty of deliberate homicide. Schmidt’s challenge thus arises

solely from the form on which the jury entered its verdict. The verdict form instructed the

jury to skip the charge of mitigated deliberate homicide if the jury entered a verdict of

“guilty” to the charge of deliberate homicide. If the jury entered a verdict of “not guilty” to

deliberate homicide, however, the verdict form directed the jury to enter a verdict for the

charge of mitigated deliberate homicide. The verdict form was functionally the same asthe

form offered by Schmidt.

¶36 Schmidt failed to object to the verdict form. Indeed, Schmidt argued at sentencing

that the jury’s verdict provided “credibility” to the evidence of mitigation. Schmidt first
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objected to the alleged inconsistency in the verdict form when he filed his petition for a writ

of supervisory control four months after he had filed his notice of appeal. Schmidt cannot

create error for his own benefit on appeal. Cline v. Durden, 246 Mont. 154, 162, 802 P.2d

1077, 1082 (1990).

¶37 This Court in Demontiney stated that “[w]e cannot imagine a much more prejudicial

result to a defendant than a guilty verdict that is not logically possible.” Demontiney, ¶ 21.

The same does not hold true here. The court correctly instructed the jury on mitigated

deliberate homicide in spite of Schmidt’s proposed erroneousinstruction. We must presume

that the jury followed the court’sinstruction. Malcolm v. Evenflo Co., 2009 MT 285, ¶ 103,

352 Mont. 325, 217 P.3d 514.

¶38 Schmidt now attempts to create a Demontiney issue from the verdict form that he

proposed. As noted by Justice Leaphart in Demontiney, we cannot discern definitively

whether the jury first acquitted Schmidt of deliberate homicide, or first convicted Schmidt of

mitigated deliberate homicide. Demontiney, ¶ 35 (Leaphart, J. dissenting). The Dissent, in

rejecting this conclusion, conflates the District Court’sjury instruction with the directionson

the verdict form. In Demontiney, both the verdict formand the jury instructions directed the

jury to consider mitigated deliberate homicide only ifit first acquitted the defendant, or was

unable to reach a verdict of deliberate homicide. The Dissent ignores the functional

difference here by focusing on the erroneous verdict form rather than the fact that, unlike in

Demontiney, the District Court correctly instructed the jury. ThisCourt in Demontiney was

concerned primarily with “the District Court’s erroneous instructions, not with the jury’s
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effortsto grapple with those erroneousinstructions.” Demontiney, ¶ 19. The District Court

in this case correctly instructed the jury to consider mitigating circumstances concurrently

with the elements of deliberate homicide. We must assume that the jury followed those

instructions. Evenflo, ¶ 103. This assumption holdstrue here, where Schmidt provided the

erroneous verdict form, but the court actually instructed the jury correctly. We have no basis

from which to determine that the jury followed the directions on the verdict form to the

exclusion of the instruction provided by the District Court.

¶39 The Dissent further contendsthat the legislature has confused the state ofthe lawwith

regard to the crime of mitigated deliberate homicide. The Dissent raises valid concerns, but

it is not this Court’s job to write the law – rather we must apply it as written. We note

nonetheless that the verdict form suggested by the Dissent would obviate Demontiney-type 

problems pending a legislative fix.

¶40 We further recognize that Schmidt proposed a verdict form that contained functionally 

the same wording asthe one he now claims resulted in a “legal impossibility.” Schmidt may

not now claimprejudice fromthat formthat he proposed. Cline, 246 Mont. at 162, 802 P.2d

at 1082. The Court in Demontiney presumed prejudice fromthe ambiguous verdictformdue

to the erroneousjury instructions. Demontiney, ¶ 19. We decline to presume prejudice from

this verdict form in light of the fact that the District Court correctly instructed the jury. We

cannot determine under these circumstancesthat the verdict formpresented by Schmidt, and

adopted by the court,substantially prejudiced Schmidt. State v. Scarborough, 2000 MT 301, 

¶ 85, 302 Mont. 350, 14 P.3d 1202.
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¶41 Did the District Court properly deny Schmidt’s request for a lesser included offense

instruction?

¶42 Schmidt argues that the District Court improperly refused his proposed jury

instructions on assault with a weapon, aggravated assault, and criminal endangerment, as

lesser included offenses of deliberate homicide. Schmidt cites State v. Castle, 285 Mont.

363, 948 P.2d 688 (1997), and State v. Sellner, 286 Mont. 397, 951 P.2d 996 (1997), for the

proposition that assault represents a lesser included offense of deliberate homicide. A court

must provide a lesser included offense instruction when one ofthe partiesrequestsit and the

jury rationally could find the defendant guilty of the lesser included offense. Castle, 285

Mont. at 369, 948 P.2d at 691; § 46-16-607(2), MCA.

¶43 The victim in Castle had been beaten severely before he wasstabbed to death. Castle

confessed that he had punched the victim three times in the jaw and once in the side of the

head. Castle claimed, however, that the victim had been standing when he left the room.

Castle returned to the roomto find the victimon the floor. Castle claimed that he watched as

another defendant stabbed the victimrepeatedly. Castle, 285 Mont. at 366, 948 P.2d at 689.

¶44 ThisCourt determined that Castle’stestimony and the medical evidence established a

factual basis from which a jury rationally could have found Castle guilty of assault, rather

than guilty of homicide. Castle’s theory posited that someone other than Castle had been

responsible for the victim’s death. Castle, 285 Mont. at 370, 948 P.2d at 692. The Court
14

concluded that the trial court should have given Castle’s proffered jury instruction on assault

as a lesser included offense. Castle, 285 Mont. at 370, 948 P.2d at 692.

¶45 This Court in Sellner rejected the defendant’s argument that an instruction for

aggravated assault should have been given where the defendant intentionally shot a police

officer. Sellner, 286 Mont. at 399, 951 P.2d at 997. The officer had stopped Sellner’s car to

question Sellner in connection with an assault Sellner allegedly had witnessed. The officer

had been unaware that Sellner had not paid hisfederal income taxes for nearly twenty years,

had no driver’s license, and as a result had an aversion to law enforcement officers. Sellner

jumped out of the car and fled. The officer shouted for Sellner to stop. Sellner instead shot

the officer in the chest. The officersurvived hisinjuries only because he had been wearinga

bulletproof vest. Sellner, 286 Mont. at 399, 951 P.2d at 997.

¶46 Sellner argued that his trial counsel should have requested a jury instruction on

aggravated assault as a lesser included offense of attempted deliberate homicide. Sellner,

286 Mont. at 398, 951 P.2d at 996. ThisCourt distinguished Castle. The evidence presented

in Castle raised the possibility that injuriesinflicted by persons other than the defendant had

caused the victim’s death. Castle, 285 Mont. at 370, 948 P.2d at 692. The Court

emphasized that Sellner admitted to being the sole cause of the victim’s injuries. Sellner,

286 Mont. at 402, 951 P.2d at 999. The evidence in Sellner’s case did not support the giving

of an aggravated assault instruction. Sellner, 286 Mont. at 403, 951 P.2d at 999.

¶47 Schmidt arguesthat the facts of his case fall somewhere in the middle ofthe spectrum

delimited by Castle and Sellner. Schmidt maintains that a jury rationally could have found
15

him guilty of the lesser included offense of aggravated assault. Schmidt concedes that no

dispute existsthat any person other than Schmidt caused Correia’sinjuries. Schmidt admits

to having inflicted the wounds that caused Correia’s death. Schmidt argues, however, that

significant evidence supports his claim that he had not intended to cause Correia’s death.

¶48 Schmidt’s case falls squarely on the Sellner end of the spectrum. Schmidt relies on

his own testimony and Correia’s allegedly threatening appearance and behaviorto bolsterthe

argument that Schmidt had not intended to kill Correia. The fact remains, however, that

Schmidt, like Sellner, admitsto having been the sole cause ofthe victim’sinjuries. Schmidt

admits that he stabbed Correia. Schmidt does not claim that anyone else was involved.

Correia died from his injuries.

¶49 A person commits aggravated assault if they “purposely or knowingly [cause]

serious bodily injury to another or purposely or knowingly, with the use of physical force or

contact [cause] reasonable apprehension of serious bodily injury or death in another.”

Section 45-5-202(1), MCA (emphasis added). By definition, aggravated assault does not

include death. Once a death results, homicide is implicated. A jury properly instructed on

the elements of aggravated assault rationally could not find Schmidt guilty of aggravated

assault in light of the fact that Correia died from wounds inflicted solely by Schmidt. The

fact that aggravated assault constitutes a lesser included offense of deliberate homicide

proves insufficient, by itself, to satisfy the statutory requirement for a lesser includedoffense

instruction. A jury would not have been warranted in finding Schmidt guilty of aggravated

assault based on the evidence presented. Section 46-16-607, MCA.
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¶50 Did the District Court properly deny Schmidt’s motion to suppress evidence of his

confession?

¶51 Schmidt argues that he gave his confession and consent to a search in response to

deficient Miranda warnings. Schmidt first attacksthe notification ofrights formused bythe

officers. Schmidt claims that the form’s wording implied that his right to counsel applied

solely to judicial proceedings and did not extend to police interrogations. Schmidt next

arguesthat the interviewing detective should have ascertained whether Schmidt understood

his rights. Schmidt claims that the detective should have asked him explicitly whether he

wished to be interviewed without counsel present. Finally, Schmidt maintains that the

cursory manner in which the officer read the Miranda warnings failed to enable Schmidt to

understand the consequences of waiving hisrights. Schmidt claims that the sixteen seconds

that it took the officer to read him his rights constituted “mere lip service” to Miranda.

¶52 Detective Edward “Butch” Harrington testified at trial that he gave Schmidt a copyof

the notification form. Detective Harrington read Schmidt hisrights before questioning him.

The video of Schmidt’s interrogation depicts Detective Harrington reciting the Miranda

warning to Schmidt in the presence of another officer. Detective Harrington summarized

Schmidt’s rights, stating:

What I read ya, this breaks it down six ways (reading) ‘you have the absolute 

right to remain silent.’ If you read and if you can understand it and are 

comfortable with that, I’m just going to ask that you initial it. That’s all it is, 

is your rights. It’s not an admission or anything like that.

Schmidt examined the form, signed it, and handed it back to the detective. Schmidt

specifically initialed six separate rights, including the right to have counsel present during
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questioning. Schmidt signed and dated the form. 

¶53 The District Court twice viewed the recording of the interrogation. The court

observed that the detectives had not used coercion or other improper investigative

techniques. The detectives, on the contrary, were respectful, spoke in calm voices, and

allowed Schmidt breaks during the interview. The detectives did not make any promises to

Schmidt in exchange for his statement. The District Court noted that although Detective

Harrington’s recitation was brief, “[t]he recording depicts an adult suspect who appears to

understand the nature and consequences of the interview process, including his waiver of

rights.” Schmidt did not ask for counsel or assert hisright to remain silent at any time during

the interview.

¶54 The District Court also took into account Schmidt’s demeanor during questioning.

The court determined that Schmidt’s ability to understand the officers’ questions and to

formulate appropriate responses supported the notion that Schmidt understood and

voluntarily had waived hisrights. The court further noted that the officers had prefaced their

request to search Schmidt’s house with a second and more extensive explanation of

Schmidt’s rights. The District Court properly denied Schmidt’s motion to suppress.

¶55 Did the District Court properly deny Schmidt’s motion in limine to allow evidence

that the victim had wielded a knife?

¶56 Schmidt challengesthe District Court’s denial of his motion in limine to allow himto

present testimony from a witness who claimed to have seen Correia with a knife in his hand

earlier in the evening. Schmidt maintainsthat the testimony should have been admissible as
18

evidence of Correia’s character. Schmidt did not seek to admit the evidence to show

Correia’sreputation for violence. Schmidt focused instead on Correia’s prior conduct on the

evening of the fight as having been relevant to demonstrate that the degree of force used by

Schmidt had been reasonable.

¶57 Schmidt had not seen Correia holding the knife. The bouncer, Gunnar Fitzpatrick,

was the only person to have seen Correia holding the knife. Correia complied when

Fitzpatrick asked him to put away the knife. Schmidt never claimed that he had been aware

that Correia had a knife before the fight. Whether Correia had brandished a knife earlier in

the evening could have played no role, therefore, in Schmidt’s calculation as to the amount

of force to use against Correia. The District Court did not abuse its discretion in determining

that testimony regardingCorreia having had a knife earlier in the evening was not relevantto

Schmidt’s decision to use his own knife on Correia.

¶58 Did the District Court properly deny Schmidt’s request for a mistrial?

¶59 Schmidt argues that the District Court committed structural error when it denied

Schmidt’s motion for a mistrial after a potential juror uttered a damaging comment about a

defense witness. The State inquired during jury selection whether anyone knew a certain

defense witness. One of the potential jurors responded by blurting out that the witness had

raped her daughter. The District Court reasoned that the witnessin question was not on trial.

The court further observed that the proposed defense witness could not be impeached by a

conviction for rape as it did not pertain to the witness’s credibility.
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¶60 The court reserved Schmidt’s right to follow up with individual voir dire if the

panelist who had made the remark was in a position to be seated on the jury. The court also

gave Schmidt leave to bring the motion again “should further voir dire establish some kind

of a general bias on the panel based on that one comment.” Schmidt did not object to the

District Court’s resolution of the matter. Counsel for Schmidt enquired during voir dire

whether anything had been said “regarding any ofthe witnesses that are going to testify that

would cause [any member of the jury] any concern or problem?” None of the witnesses

mentioned the non-seated panelist’sremark. The court reserved Schmidt’srightto renewthe

motion for a mistrial if any evidence of bias surfaced at a later time. None did. The District

Court did not abuse its discretion by denying Schmidt’s motion for a mistrial.

¶61 Did the District Court properly exclude a photograph of the victim offered by

Schmidt?

¶62 The District Court denied Schmidt’srequest to introduce a photograph ofCorreia that

depicted Correia’s “intense” eyes. Schmidt argues that the District Court did not evaluate

thoroughly the probative value of the photograph. Schmidt cites State v. Dunfee, 2005 MT

147, ¶ 26, 327 Mont. 335, 114 P.3d 217, for the proposition that a trial court must weigh the

probative value of a photograph against its prejudicial effect to determine its admissibility.

See also M. R. Evid. 403.

¶63 Ourstatement in Dunfee constitutes an application ofRule 403 to specific facts,rather

than a general rule pertaining to photographic evidence. Courts apply the Rule 403

balancing test to determine whether relevant evidence should be excluded for reasons of
20

prejudice. State v. Laird, 225 Mont. 306, 312, 732 P.2d 417, 421 (1987); M. R. Evid. 403.

Schmidt’s argument skips the initial relevance determination.

¶64 The District Court determined that Schmidt had failed to make a sufficient showing

that the photograph accurately reflected Correia’s appearance on the night of the fight.

Schmidt also had introduced two other photographs ofCorreia. These photographs depicted

Correia without his shirt, flexing his muscles. The admitted photographs also showed

Correia’s eyes. Schmidt’s counsel had questioned witnesses about Correia’s appearance

generally, and Correia’s eyes in particular. The court observed that the photograph, in

addition to being more than four years old, had not been taken in the bar or in Schmidt’s

presence. The court’s determination that the photograph was not relevant precluded any

need for it to proceed to the Rule 403 analysis. See Laird, 225 Mont. at 311, 732 P.2d at

421. The District Court did not abuse its discretion by denying its introduction. Damon, ¶

12.

¶65 Did the District Court properly deny Schmidt’s motion for a directed verdict?

¶66 Schmidt claims that the District Court erred by denying his motion to dismiss at the

close ofthe State’s case. A district court properly grants a motion for a directed verdict only

when no evidence exists upon which a rational trier of fact could have found the essential

elements of a crime beyond a reasonable doubt, when viewing the evidence in a light most

favorable to the prosecution. Marler, ¶ 20.

¶67 The record contains ample evidence upon which the jury could have found that

Schmidt had committed the elements of deliberate homicide. Marler, ¶ 20. The precise
21

sequence of events on the night of Correia’s death remains elusive. Many of the witnesses

had been drinking or were involved in the fighting at the Irish Times. It is undisputed,

however, that Schmidt stabbed Correia and caused his death. Schmidt then fled the scene of

the fight. Schmidt threw away his knife and cell phone, went home, and burned his clothes.

Schmidt lied to police about the clothing that he had been wearing and the knife that he had

used. The District Court properly allowed the jury to make the determination of whetherthe

State had presented sufficient evidence to convict Schmidt. Marler, ¶ 35.

¶68 Did the District Court properly instruct the jury on weapons enhancement?

¶69 A court may impose a penalty enhancement once a jury makes a unanimousfindingof

guilt as to the underlying crime. The jury then must make a separate, unanimous finding,

that the defendant committed the act that supports the enhancement. Section 46-1-401,

MCA. The District Court instructed the jury on weapons enhancement in the context of

deliberate homicide. The court did not instruct the jury separately on weapons enhancement

with regard to mitigated deliberate homicide. Schmidt claims that the jury instruction

became “the law ofthe case” under State v. Crawford, 2002 MT 117, 310 Mont. 18, 48 P.3d

706.

¶70 Crawford turned on a jury instruction that contained an extraneous element. The

State’s failure to object to the proposed jury instruction rendered the instruction the law of

the case. Crawford, ¶ 27. The jury became bound by the instruction. The court’s inclusion

of this extraneous element in the jury instruction required the jury to find the extraneous

element, in addition to finding all of the statutorily required elements. Crawford, ¶ 27.
22

¶71 The jury instruction that Schmidt challenges did not add or delete any elements ofthe

underlying offense. The District Court considered thisinstruction in the context of allthirtythree jury instructions taken as a whole. State v. Dasen, 2007 MT 87, ¶ 34, 337 Mont. 74,

155 P.3d 1282. The jury instructions clearly stated that the charge of mitigated deliberate

homicide required proof of all the same elements as deliberate homicide. The instructions

also directed the jury to “consider all ofthe instructions as a whole, and . . . to regard each in

light of all the others.” The verdict form expressly directed the jury to answer the weapons

enhancement inquiry if it found Schmidt guilty of mitigated deliberate homicide. The rule

announced in Crawford has no application to these facts. The jury instructions, considered

as a whole, fully and fairly instructed the jury on the applicable law. Dasen, ¶ 34.

¶72 Did the District Court properly impose restitution for the victim’s funeral expenses?

¶73 Schmidt challenges the District Court’s order that he pay restitution based on the

failure ofCorreia’s family to submit an affidavit substantiating the amount oftheirpecuniary

loss. Section 46-18-242(1)(b), MCA, requires a victim to submit an affidavit describingand

assigning a dollar amount to the victim’s pecuniary loss. The trial court imposed restitution

in the amount recommended by the probation officer in the pre-sentence investigation (PSI)

report. The probation officer calculated restitution based on a written statement provided by

Correia’s family.

¶74 The restitution included Correia’s funeral expenses and his family’s travel expenses

during trial and sentencing. Schmidt did not specifically contest the amount of restitution.

Schmidt did object to the lack of an affidavit in his sentencing memorandum. Schmidt
23

offered no evidence or argument refuting the amount ofrestitution at the sentencing hearing.

Schmidt did not claimthat the restitution figure was unreasonable. Schmidt did not question

the probation officer extensively. Schmidt did not insist on the need for an affidavit at the

hearing. Schmidt also did not make use of the hearing to question the members of Correia’s

family who were present.

¶75 We recently upheld the affidavit requirement of § 46-18-242, MCA, in State v. Hunt,

2009 MT 265, 352 Mont. 70, 214 P.3d 1234. The State’s failure to include an affidavit in

the PSI report required remand to the district court for compliance with the statutory

provisions. Hunt, ¶ 22. The defendant in Hunt objected at the sentencing hearing, however,

to the lack of a sworn affidavit. Schmidt did not. Schmidt did not object to the amount, or

calculation, of restitution at the sentencing hearing. Schmidt admitted in his sentencing

memorandum and at the sentencing hearing that restitution was appropriate. Schmidt

initially supported the PSI’s recommendation that he pay restitution in exchange for

suspension ofthe weapons enhancement sentence. Schmidt objected only after he received

an unfavorable sentence. The District Court’simposition ofrestitution satisfies §46-18-242,

MCA.

¶76 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH
24

/S/ JOHN WARNER

/S/ W. WILLIAM LEAPHART

/S/ JIM RICE

Justice James C. Nelson, dissenting.

¶77 I dissent. I would hold that Demontiney v. Twelfth Judicial Dist. Court, 2002 MT

161, 310 Mont. 406, 51 P.3d 476, is dispositive and that the jury, having acquitted Schmidt

of deliberate homicide (§ 45-5-102(1)(a), MCA), could not then logically find him guilty of

mitigated deliberate homicide (§ 45-5-103(1), MCA).

¶78 In Demontiney, this Court reaffirmed that “ ‘a finding that the defendant satisfied the

elements of deliberate homicide is a prerequisite to a conviction on the mitigated offense.’ ”

Demontiney, ¶ 16 (quoting State v. Scarborough, 2000 MT 301, ¶ 48, 302 Mont. 350, 14

P.3d 1202) (emphasis in Scarborough). As we observed, the contrary “ ‘would require

finding, first, that the defendant did not “purposely or knowingly cause the death of another 

human being” and, second, that he did so but only under the influence of extreme mental or 

emotional stress.’ ” Demontiney, ¶ 16 (quoting Scarborough, ¶ 49) (emphases in

Scarborough). Thus, we held that “a finding of guilt on deliberate homicide is a 

precondition to a finding of guilt on mitigated deliberate homicide.” Demontiney, ¶ 17. We
25

noted that the State had conceded that this statutory interpretation is correct. Demontiney, 

¶ 17.

¶79 Here, the Court affirms Schmidt’s conviction of mitigated deliberate homicide on

precisely the rationale which the Court rejected in Demontiney when reversing the same 

conviction in that case. Opinion, ¶¶ 32, 38. In reaching this result, the Court cites

Instruction No. 25 (see Opinion, ¶¶ 34, 38), which first directed the jury to consider the

evidence in terms of mitigated deliberate homicide and then directed the jury to consider the

evidence in terms of deliberate homicide. Of course, the order in which the jury considered

the two charges is beside the point, given that the jury subsequently acquitted Schmidt of

deliberate homicide, as stated on the Verdict. The Court also observes that although the

acquittal of deliberate homicide came in response to Question 1 on the verdict form and the

conviction of mitigated deliberate homicide came in response to Question 2, “we cannot

discern definitively whether the jury first acquitted Schmidt of deliberate homicide, or first

convicted Schmidt of mitigated deliberate homicide.” Opinion, ¶¶ 35, 38. Thisisincorrect.

Question 1 asked the jury to decide the charge of deliberate homicide and provided a line for

the verdict. The jurors were instructed to “[w]rite on the above line ‘Guilty’ or ‘Not 

Guilty.’ ” Immediately below this, the jurors were instructed: “If you find the Defendant 

‘Guilty’ of Deliberate Homicide, proceed to Question 3. If you find the Defendant ‘Not 

Guilty’ of Deliberate Homicide, proceed to Question 2.” Question 2 asked the jury to decide

the mitigated deliberate homicide charge. Question 3 asked the jury to decide the dangerous

weapon allegation. Thus, pursuant to the instructions on the verdict form, and given that
26

“[w]e must presume that the jury followed the court’s instruction,” Opinion, ¶ 37, we can, in 

fact, discern definitively that the jury first wrote “Not Guilty” under Question 1 to the charge

of deliberate homicide and then proceeded to Question 2, as instructed, and there wrote

“Guilty” to the charge of mitigated deliberate homicide—the exact scenario which occurred

in Demontiney. See Demontiney, ¶¶ 7, 20. But even setting aside the sequence in which the

offenses were evaluated and decided, the fact remains that the jury still undisputedly

acquitted Schmidt of deliberate homicide. The jury determined that Schmidt did not

purposely or knowingly cause the death of James Correia.

¶80 Accordingly, our decision in Demontiney controls. See Demontiney, ¶¶ 8, 20-21 

(concluding that the jury’s verdict of “guilty to mitigated deliberate homicide but not guilty 

to deliberate homicide” was “logically impossible,” and observing that “[w]e cannotimagine

a much more prejudicial result to a defendant than a guilty verdict that is not logically

possible”). As we held in that case and in Scarborough, there is no logical way the jury

could find both that the defendant did not purposely or knowingly cause the death of another

human being and that the defendant did purposely or knowingly cause the death of another

human being, though under the influence of extreme mental or emotional stress.

Demontiney, ¶ 16; Scarborough, ¶ 49. “[A] finding of guilt on deliberate homicide is a

precondition to a finding of guilt on mitigated deliberate homicide”—a point which theState

conceded. Demontiney, ¶ 17 (emphasis added).

¶81 Here, however, the jury did precisely what we said in Demontiney it could not

logically do. It found that Schmidt did not purposely or knowingly cause the death of
27

Correia, but that Schmidt did cause Correia’s death, though under the influence of extreme

mental or emotional stress. As Demontiney states: “ ‘[A] finding that the defendantsatisfied

the elements of deliberate homicide is a prerequisite to a conviction on the mitigated 

offense.’ ” Demontiney, ¶ 16 (quoting Scarborough, ¶ 48) (emphasis in Scarborough). To

comply with this clear and unambiguous statement, the jury had to find Schmidt guilty of

deliberate homicide and find that he acted under the influence of extreme mental or 

emotional stress.

¶82 The District Court not only failed to instruct the jury that it was required to find 

Schmidt guilty of deliberate homicide as a “precondition” or “prerequisite” to finding him

guilty of mitigated deliberate homicide, the court actually directed the jury on the verdict

form not to reach the charge of mitigated deliberate homicide unless it first found the

defendant not guilty of deliberate homicide. In so doing, the court directly contradicted our

holding in Demontiney and created the illogical scenario which required reversal in that case.

And the jury did exactly as it was instructed on the verdict form. It did what we said was

logically impossible in Demontiney. Regardless of who offered the verdict form (see

Opinion, ¶ 40), it was ultimately the court’s obligation to fully and fairly instruct the jury on

the law. State v. Archambault, 2007 MT 26, ¶ 14, 336 Mont. 6, 152 P.3d 698. That it 

plainly failed to do.

¶83 I cannot agree that under the District Court’sInstruction No. 25 and the verdict form,

Schmidt was properly convicted of mitigated deliberate homicide. Indeed, he was acquitted
28

of that charge because the prerequisite finding of deliberate homicide was not made by the 

jury.

¶84 That said, I continue to be amazed that the Legislature leaves the “offense” of 

mitigated deliberate homicide on the books. Mitigated deliberate homicide is technically a 

stand-alone criminal offense—a felony punishable by imprisonment for a term of not less

than 2 years or more than 40 years, and by a fine of not more than $50,000. Section

45-5-103(4), MCA. As noted above, to prove this offense the State must first prove that the 

defendant committed the offense of deliberate homicide, and then there must be “mitigating 

circumstances” which “reduce deliberate homicide to mitigated deliberate homicide.” 

Section 45-5-103(3), MCA. Curiously, there does not have to be any “evidence” of 

mitigation; just “mitigating circumstances.” Even more problematic, neither party has the 

burden of proving these “mitigating circumstances.” Section 45-5-103(3), MCA. 

“Mitigating circumstances” are neither an “element” of the reduced crime provable by the 

State nor an “affirmative defense” provable by the defendant. Section 45-5-103(3), MCA.

¶85 So, under this scheme, a person accused and convicted of mitigated deliberate

homicide can be deprived of his or her liberty by imprisonment for up to 40 years and of his

or her property by a fine of up to $50,000. Yet, no one bears the burden of proving the 

“mitigating circumstances” which reduce a greater offense to a lesser offense. And, 

apparently, these “mitigating circumstances” are not even subject to proof beyond a

reasonable doubt, as they are not an element of the crime charged, thus leaving mitigated

deliberate homicide with only one actual “element”—the deliberate homicide. Moreover, as
29

a result of our decision today, the jury can actually acquit the defendant of the only statutory 

“element” contained within mitigated deliberate homicide—namely, deliberate homicide, 

i.e., “purposely or knowingly caus[ing] the death of another human being” (compare

§ 45-5-102(1)(a), MCA, with § 45-5-103(1), (3) MCA)—and yet, despite that acquittal, the 

jury can still find the defendant guilty of the offense of mitigated deliberate homicide, the 

only “element” of which is deliberate homicide. It is hard to envision a more nonsensical 

criminal offense.

¶86 To make matters worse, the Legislature has declared that mitigated deliberate 

homicide is “a lesser included offense” of deliberate homicide as defined in 

§ 45-5-102(1)(a), MCA. See § 45-5-103(2), MCA. Elsewhere in the Code, “included 

offense” is defined as an offense that is “established by proof of the same or less than all the 

facts required to establish the commission of the offense charged.” Section 46-1-202(9)(a),

MCA (emphasis added); see also State v. Meyer, 2005 MT 215, ¶ 16, 328 Mont. 247, 119 

P.3d 1214 (noting that the term “facts” in § 46-1-202(9)(a), MCA, refers to the statutory

elements ofthe offense, not the individual facts ofthe case). Technically speaking, mitigated 

deliberate homicide is established by proof of “the same” statutory “elements” as deliberate 

homicide and, in this respect, is an “included offense.” But this is only so because the

Legislature has declared that mitigating circumstances (i.e., the facts the jury must find to

“reduce” deliberate homicide to mitigated deliberate homicide) are not an “element” of

mitigated deliberate homicide. Practically speaking, however, mitigated deliberatehomicide

cannot be a “lesser included offense” of deliberate homicide, given that the jury must find all
30

of the elements of deliberate homicide plus mitigating circumstances in order to find the 

defendant guilty of the mitigated offense.

¶87 And as if this weren’t bad enough, the Legislature has directed that “[w]hen a lesser

included offense instruction is given, the court shall instruct the jury that it must reach a

verdict on the crime charged before it may proceed to a lesser included offense.” Section

46-16-607(3), MCA (emphasis added). As noted, the verdict form in the present case

followed this procedure. And yet, it is precisely this procedure which creates the logical

impossibility we identified in Scarborough and Demontiney: “ ‘there is no logical way the

jury could acquit on deliberate homicide and then consider mitigated deliberate homicide.

To do so would require finding, first, that the defendant did not “purposely or knowingly 

cause the death of another human being” and, second, that he did so but only under the 

influence of extreme mental or emotional stress.’ ” Demontiney, ¶ 16 (quotingScarborough, 

¶ 49) (emphases in Scarborough).

¶88 In other words, the Legislature has created a situation in which a defendant, underthe

law asstated in the Montana Code Annotated, can never be convicted of mitigated deliberate 

homicide. First, deliberate homicide and mitigated deliberate homicide contain the exact 

same “elements” (no more, no less), and those are “purposely or knowingly caus[ing] the 

death of another human being.” Sections 45-5-102(1)(a), -103(1), -103(3), MCA. Second,

mitigated deliberate homicide is a “lesser included offense” of deliberate homicide. Section

45-5-103(2), MCA. Third, a jury must reach a verdict on the crime charged before it may

proceed to a lesser included offense. Section 46-16-607(3), MCA. Fourth, since the
31

statutory “elements” of deliberate homicide and mitigated deliberate homicide are identical 

(as noted, “mitigated circumstances” are not an “element” of the mitigated offense, 

§ 45-5-103(3), MCA), a verdict of not guilty on deliberate homicide necessarily means a 

verdict of not guilty on the “lesser included offense” of mitigated deliberate homicide. The 

jury simply cannot find first, as it is supposed to do under § 46-16-607(3), MCA, that the

defendant did not “purposely or knowingly cause[ ] the death of another human being,” 

§ 45-5-102(1)(a), MCA (deliberate homicide), and then find second, again pursuant to the 

procedure in § 46-16-607(3), MCA, that the defendant did “purposely or knowingly cause[ ] 

the death of another human being,” § 45-5-103(1), MCA (mitigated deliberate homicide). 

This statutory scheme could have been written by Rube Goldberg.

1

¶89 Instead of perpetuating this absurdity, the next Legislature should simply dispose of

the offense of mitigated deliberate homicide along with the notion that it is a lesser included

offense of deliberate homicide. In its stead, to account for a homicide committed under the

influence of extreme mental or emotional stressfor which there isreasonable explanation or

excuse (§ 45-5-103(1), MCA), the Legislature should create a new offense along the linesof

manslaughter. See e.g. § 94-2507, RCM (1947) (defining voluntary manslaughter as the

unlawful killing of a human being, without malice, upon a sudden quarrel or heat ofpassion).

With this sort of statutory scheme, prosecutors could charge deliberate homicide and

manslaughter in the same information as alternative offenses; the jury would be instructed as

1 Rube Goldberg: “a comically involved, complicated invention, laboriously

contrived to performa simple operation.” http://www.rubegoldberg.com/ (accessed Dec. 7,

2009) (citing Webster’s New World Dictionary).
32

to the differing elements of each offense; and the jury could take their pick on the verdict

form, depending on what actual evidence was proved beyond a reasonable doubt.

¶90 But if the Legislature chooses to retain the offenses of deliberate homicide and

mitigated deliberate homicide, then where the jury is tasked with deciding which crime was

committed, the jury should not be put in the position of having to render logically

inconsistent verdicts on both deliberate homicide and mitigated deliberate homicide. Rather,

the jury should be required to choose one or the other (or neither, if the defendant is not

guilty of either charge). See e.g. Demontiney, ¶ 6 (noting that the State’s verdict form, which

advised the jury to enter a verdict to only one charge, was consistent with our holding in

Scarborough). Alternatively, to eliminate any possibility of confusion or inconsistency, the

following verdict form could be used:

1. Did the defendant purposely or knowingly cause the death of another

human being?

_______Yes _______No (Check one.)

If your answer is “Yes,” then proceed to question 2. If your answer is 

“No,” then do not proceed further; the foreperson should sign the

verdict and return it to the bailiff.

2. Did the defendant do so under the influence of extreme mental or

emotional stress for which there is reasonable explanation or excuse?

_______Yes _______No (Check one.)

At least using this sort of verdict form would avoid the Demontiney problem and the one

at issue here. The jury should not be required to render a verdict on both deliberate

homicide and mitigated deliberated homicide as separate, stand-alone offenses.
33

¶91 Finally, it should be noted that in mitigated deliberated homicide, Montana’s

Legislature has created a stand-alone, felony criminal offense in which there can first be an 

outright acquittal on the only “element” of the offense, and then the balance of the jury’s

findings (whether the defendant acted under the influence of extreme mental or emotional

stress for which there wasreasonable explanation or excuse) are not subject to proof beyond

a reasonable doubt by the government. This statutory scheme clearly violatesthe command

ofthe Due ProcessClause that an accused cannot be convicted of a crime “except uponproof

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). Given the 

Legislature’sseeming inability to rectify this situation and thisCourt’srefusal to addressthe

problem, Schmidt is left with no other resort except to the United States Supreme Court.

¶92 Pursuant to our controlling decision in Demontiney, I would vacate Schmidt’s

conviction and order him immediately released fromconfinement. See Demontiney, ¶ 28. I

dissent from our failure to do so.

/S/ JAMES C. NELSON

Justice Patricia O. Cotter dissents.

¶93 I dissent fromthe Court’sresolution ofIssue Two. I would conclude that the District

Court’s failure to give an instruction on aggravated assault constitutes reversible error. I

would reverse and remand this matter for a new trial.
34

¶94 It is undisputed that Schmidt and Correia ultimately ended up in a fight outside the

Irish Times bar in Butte, and that Correia was on top of Schmidt and hitting him. It is

further undisputed that Schmidt pulled a knife out of his pocket and stabbed Correia several

times, resulting in his death. However, the evidence and argument was genuinely

conflicting regarding who started this fight, what Schmidt’s intentions were in stabbing

Correia, and whether Schmidt was truly justified in fearing for his life. While the State

maintained that Schmidt attacked Correia in the street, and that Schmidt was not being as

badly beaten as he claimed, Schmidt asserted that Correia ambushed himand that he feared

for his life. He insisted he never intended to kill Correia, but was rather trying to protect

himself from the beating. There were witness accounts on both sides of this issue, and

almost every witness who actually saw the fight had been drinking for awhile.

¶95 The State argued at trial that the stab wounds were inflicted with the intent to kill,

citing the depth of the stab wounds to Correia. However, on Schmidt’s cross-examination,

the State’s forensic expert Dr. Kemp essentially conceded that the depth of the wounds

could have been due to Correia leaning into the knife as Schmidt stabbed him from below.

This portion of the testimony reads as follows:

Q. But you did indicate that with respect to the wound in the leg that one

of the potential causes could have been the individual himself moving; is

that correct?

A. That is—yes. Based upon the features that I see in the stab wound, 

that’s—it’s consistent with somebody with the knife moving in orientation 

to the skin before it’s removed or with the leg moving in orientation to the 

knife before it’s removed. There’s several possibilities there, yes.

Q. Now, you had indicated that, I believe, Wounds 1 and 2 were

significantly impacted in the chest and the diaphragm area; is that correct?

A. Yes. Those were the two that penetrated into the chest cavity,
35

striking the diaphragm and the heart, yes.

Q. With respect to the depth of those wounds, would it have been

possible for someone leaning into the other individual to have those go

deeper?

A. Yeah, I mean, if somebody leans against a knife, it can drive the

knife deeper into the body. And it would help—yeah. If that answered—

yeah, I mean, if somebody’s leaning forward onto something obviously

sharp. I mean if somebody just held a knife there and somebody leaned

into it like that, once the knife goes through the skin, then it can go in.

¶96 In order to receive the aggravated assault instruction, Schmidt must only present

enough evidence to arguably support a conviction of aggravated assault in lieu of deliberate

homicide. As this Court stated recently in Adams v. State, 2007 MT 35, 336 Mont. 63, 153

P.3d 601:

A criminal defendant is entitled to jury instructions that cover an issue or

theory if there is evidence to support such an instruction. It is fundamental 

under Montana law that “a defendant is entitled to a jury instruction on a

lesser included offense when one of the parties requests it and the record

contains evidence from which the jury could rationally find the defendant

guilty of the lesser offense and acquit of the greater.”

Adams, ¶ 43 (quoting State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340, 987 P.2d 

371). In my view, given the conflicting evidence, Schmidt met this burden. 

¶97 In ¶ 47 of the Opinion, the Court suggests that Schmidt could not receive an

instruction on aggravated assault because Correia died. However, in State v. Castle, 285

Mont. 363, 948 P.2d 688 (1997), we held, as a matter of law, that assault was a lesser

included offense of deliberate homicide. Castle, 285 Mont. at 368-69, 948 P.2d at 691. In

Castle, we reasoned as follows:

At issue in this case, however, is whether the assault is an included 

offense under subsection 8(c). That subsection defines “included offense” 

as one that “differs from the offense charged only in the respect that a less
36

serious injury or risk to the same person, . . . or a lesser kind of culpability 

suffices to establish its commission.” Section 46-1-202(8)(c), MCA. We

addressed that statutory definition for the first time in [State v. Fisch, 266

Mont. 520, 881 P.2d 626 (1994)], where we held that under that subsection,

an offense is a lesser included offense if it differs from the one charged only

by way of a less serious injury or a less serious risk or a lesser kind of

culpability. Fisch, 881 P.2d at 628.

One commits the crime of deliberate homicide if he “purposely or 

knowingly causes the death of another human being.” Section 

45-5-102(1)(a), MCA. One commits assault if he “purposely or knowingly 

causes bodily injury to another.” Section 45-5-201(1)(a), MCA. The only 

difference between the two is that a “less serious injury . . . suffices to 

establish” the crime of assault. Section 46-1-202(8)(c), MCA. This Court

thus holds that under the express terms of subsection 8(c), assault is an

included offense of the crime of deliberate homicide.

Castle, 285 Mont. at 368-69, 948 P.2d at 691. The Court’s Opinion in this case is

directly at odds with our reasoning in Castle, and indeed seems to implicitly

overrule our holding in that case.

¶98 While admitting he stabbed Correia, Schmidt maintained all along that he did not

intend to kill him. The forensic evidence of Correia’s wounds did not foreclose this

possibility. Thus, a jury could have rationally found Schmidt guilty of aggravated assault

instead of deliberate homicide or mitigated deliberate homicide. This being so, the

instruction on aggravated assault should have been given.

¶99 In this regard, the case sub judice is distinguishable from other cases in which the

lesser included offense of aggravated assault was rejected in the context of a deliberate

homicide charge. In State v. Sellner, 286 Mont. 397, 951 P.2d 996 (1997), for instance, the

Court found that the defendant Sellner was not entitled to a lesser-included offense

instruction on aggravated assault when he shot at an oncoming police officer, aiming forhis
37

chest. Sellner, 286 Mont. at 402, 951 P.2d at 999. Sellner hit the officer, who would have

died but for the fact that he was wearing a bullet-proof vest. The Court concluded that

“[f]rom the evidence presented at trial, it would be irrational to conclude that Sellner’s

shooting of[Officer] Parcell in the chest with a large calibersoft-point bullet was done with

any intent otherthan to cause a person’s death.” Sellner, 286 Mont. at 402, 951 P.2d at 999.

¶100 In State v. Howell, 1998 MT 20, 287 Mont. 268, 954 P.2d 1102, the defendant was

convicted of attempted deliberate homicide. Howell had attempted to intervene in a fight

between two individuals at his residence, and held a knife to one ofthe individual’s(Oliver)

throat telling himto get offthe other person. Howell, ¶ 9. Howell ended up slitting Oliver’s

throat. Howell, ¶ 11. Howell requested an instruction on aggravated assault, which was

refused by the district court. Howell challenged the refusal, and this Court affirmed.

Howell had argued that he was entitled to the aggravated assault instruction because he

didn’t intend to kill Oliver, but rather accidentally slit his throat when Oliver fell on top of

him and Howell pulled his arm away. Howell, ¶ 29. The Court rejected this argument as

follows:

[I]n this case, the testimony in the record and the medical evidence do not

support an instruction on aggravated or felony assault. The injuries

inflicted were nearly fatal. The laceration on Oliver’s neck extended 

through skin, fat, and muscle and was within one millimeter of Oliver’s 

carotid artery and jugular vein. Dr. Gould testified: “You could not get 

[a] more uniform [cut] without trying.”

The record contains no evidence that Howell intended to inflict

bodily injury rather than to cause the death of Oliver. Howell

admitted to threatening Oliver with a knife and testified at trial:

I was behind him but I put the knife to his throat and told him

to get off, I hadn’t used the knife. Listen, I like Jim Oliver,

but when you threaten, you threaten, you show him you mean
38

it or he’s going to get up and kick the shit out of me.

Howell then stated that he did not intend to injure Oliver, but cut

him accidentally. This theory, if accepted, would support an acquittal, not

a conviction for assault. Therefore, we hold that the District Court did not

err in refusing to instruct the jury on aggravated or felony assault.

Howell, ¶¶ 33-34 (emphasis added).

¶101 Here, unlike the situation in Howell, Schmidt concedes he intended to stabCorreia; he

does not argue that the stabbingwas accidental. Moreover, the forensic evidence arguably

supports the theory that Schmidt’s intent was to stab, but not to kill, Correia. The record in

this case does contain evidence that Schmidt intended to inflict serious bodily injury rather

than death. Accordingly, an assault instruction doesfind support in the facts and Schmidt’s

theory of events. Schmidt’s theory, if believed, could result in a jury rationally convicting

himof aggravated assault instead of deliberate homicide. Therefore, under Adams, I would

conclude that Schmidt was entitled to a lesser included offense instruction to be able to fully

present his theory to the jury. As a result of the District Court’sfailure to give the requested

instruction, the instructions as a whole did not fully and fairly inform the jury of the

applicable law. In my judgment, this error warrants reversal and a new trial. I therefore

dissent.

/S/ PATRICIA O. COTTER