No. 97-243 IN THE SUPREME COURT OF THE STATE OF MONTANA**1998MT2~** STATE OF MONTANA,

# ~"'H 

# PO

Plaintiffand Respondent,
v. CHARLES HOWELL, Defendant and Appellant.

APPEAL FROM: District Court ofthe Second Judicial District, In and for the County ofSilver Bow, The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:

Filed: For Appellant: Deirdre Caughlan, Attorney at Law, Butte, Montana ForRespondent: Hon. Joseph P. Mazurek, Attorney General; Cregg Coughlin, Assistant Attorney General, Helena, Montana Robert M. McCarthy, County Attorney; Samm Cox Deputy, County Attorney, Butte, Montana
Submitted on Briefs: January 15,1998 Decided: February 9, 1998

Cllrk

### Justice W. William Leaphart delivered the Opinion ofthe Court.**~1** 

### Appellant Charles Howell (Howell) was convicted ofattempted deliberate homicide and appeals from the Second Judicial District Court's findings offact, conclusions oflaw, judgment and order. We affirm.**~2** 

### We address the following issues on appeal:**~3** 

### 1. Didthe District Court errin refusing to instruct thejury on the offense ofattempted mitigated deliberate homicide?**~4** 

### 2. Did the District Court err in refusing to instruct the jury on the offenses of aggravated and felony assault? Factual and Procedural Background**~5** 

### On April 1, 1996, Howell and his roommate, Gary Cargle (Cargle) were at their residence in Butte, Montana. At about 5:30 p.m., Jim Oliver (Oliver) and his girlfriend Amanda Stanwood (Stanwood) stopped by to visit Howell. Oliver and Stanwood had been drinking at several casinos earlier that afternoon and brought a gallonjug ofwine and some beer with them to Howell's. Howell, Cargle, Oliver, and Stanwoodproceededto drink and socialize for several hours.**~6** 

### Later in the evening, Howell went into the kitchen and began fixing dinner. Howell testified that afterputting some chicken in the oven, he went upstairs and got in the shower.

2In the meantime, Cargle, Oliver, and Stanwood became involved in a conversation about religion. At this point, the parties' versions ofevents differ.**~7** Stanwood and Oliver testified that Cargle became upset at a comment that Stanwood made about religion, walked over to Stanwood, and punched her in the mouth. Cargle was unavailable at trial, but his tape-recorded statement was admitted into evidence. Cargle stated that it was Oliver, not he, who punched Stanwood. Cargle claimed that Oliverbegan pushing Stanwood and that he tried to getbetween Oliver and Stanwood. All parties agree that Oliverjumped on top ofCargle and began hitting him.**~8** Howell testified that while he was in the shower, he heard Cargle screaming for help. He opened the shower door, put on a pair ofcut-offs, and ran down to the living room. He stated that he found Oliver on top ofCargle, "beating the hell out ofhim." Cargle is a disabled veteran and does not have full use ofone ofhis arms. Howell testified that he saw Oliver beating Cargle and was afraid that Cargle had no way to defend himself. Howell testified that he tried to shove Oliver offofCargle, but that Cargle knocked him against the wall.**~9** Howell testified at trial that he then went into the kitchen and grabbed a knife. He admitted that he returned to the living room with the knife and came up behind Oliver. Howell testified attrial, "I putthe knife to his throat and told him to get off." However, later in his testimony, Howell stated that Oliverhad attacked him and that he fell to the floor with

3Oliver on top ofhim. He statedthat he had the knife in his hand and when he pulled his arm away, Oliver may have been cut.**~1**0 Stanwood testified at trial that Howell was sitting in the living room at the time the altercation began. She stated that after Oliver and Cargle began fighting, Howell came up behind Oliverwith aknife. She stated that Howell pulled Oliver's headback and cut him ear to ear. Stanwood grabbed Oliver, put her hand over his throat, and drove him to the emergency room.**~11** Atthe emergencyroom, Oliverwas treatedbyDr. Richard Gould. Dr. Gouldtestified that Oliverhadlacerations onhis hand and fingers. The laceration on Oliver's neck extended from earto earthroughthe layers ofskin, fat, and muscle. The cut was ofuniform depth and
came within one millimeter ofOliver's carotid artery andjugularvein. The cut on Oliver's neckhad to be stapled closed.**~12** After receiving a report ofthe altercation, two police officers were dispatched to Howell's residence. Theynoticedblood on the sidewalkoutside ofthe house and on the front door. After the officers knocked on the door several times, Howell answered. Inside, the officers foundblood on the walls and door and a largepool ofblood on the livingroom floor. Cargle had blood on his shirt, pants, and shoes. Howell did not have any blood on him.**~13** In the kitchen, an officer found a large kitchen knife on the counter, which was later found to have blood on it consistent with Oliver's. There were no signs that food was being prepared. Inthebathroomthe officers noticedblood on the toiletbowl and sink and a bucket

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### ofammonia water and rags on the floor. The officers also testified that when they arrived, there was a load oflaundry in the washing machine.**~14** 

### Howell told the officers that Oliver and Stanwood had gotten into an argument and that he had asked them to leave. When questioned further, Howell stated that Oliver had assaulted Cargle and that he hadtried to push Oliver offofCargle. Howell told the officers that he was not sure whether Oliver had been cut, but that he thought Stanwood may have cut Oliver.**~15** 

### Howell was chargedby information with attempted deliberate homicide in violation of §§ 45-4-103(1) and 45-5-102(1)(a), MCA. Prior to trial, the District Court granted Howell's motion for a psychological examination. Howell was examined by Dr. Bernard Peters, who testified at trial. Dr. Peters testified that Howell suffers from depressive disorder, but that no signs or symptoms ofthe depressive disorder appeared to be manifest at the time ofthe crime. Dr. Peters concluded that Howell's consumption ofalcohol was the main factor in the incident.**~16** 

### A jury found Howell guilty, and he was sentenced to 25 years, plus 2 years, suspended, for the use ofa weapon. He appeals from thisjudgment. Standard ofReview**~17** 

### A criminal defendant is entitledto have thejuryinstructed on each issue ortheory that is supported in the evidence. State v. Gopher (1981), 194 Mont. 227, 229, 633 P.2d 1195, 1196. This Court reviews jury instructions in criminal cases to determine whether the

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### instructions as a whole fairly instruct thejury on the law applicable to the case. State v. Brandon (1994), 264 Mont. 231, 870 P.2d 734. Discussion**~18** 

### 1. Didthe District Court errin refusing to instructthejury on the offense ofattempted mitigated deliberate homicide?**~19** 

### Under Montana law, a criminal defendant "may be found guilty of an offense necessarily included in the offense charged or ofan attempt to commit either the offense charged or an offense necessarily included in the offense charged." Section 46-16-607(1), MCA. The defendant is entitled to ajuryinstruction on a lesser included offense when one ofthe parties requests it and when the record contains evidence from which thejury could rationally find the defendant guilty ofthe lesser offense and acquit ofthe greater. Section 46-16-607(2), MCA; State v. Castle (Mont. 1997),948 P.2d 688, 54 St.Rep. 1194.**~20** 

### A person commits the offense of deliberate homicide ifhe or she "purposely or knowingly causes the death ofanother human being." Section 45-5-102(1), MCA. The defendant is guilty ofmitigated deliberate homicide when he or she "purposely orknowingly
causes the death ofanotherhuman being but does so under the influence ofextreme mental
or emotional stress for which there is reasonable explanation or excuse." Section 45-5- 103(1), MCA. Thus, mitigated deliberate homicide is not a lesser included offense of deliberate homicide in the traditional sense, but rather is an affirmative defense that mustbe proven by the defendant by a preponderance ofthe evidence. Section 45-5-103(2), MCA;
see State v. Goulet (Mont. 1997),938 P.2d 1330, 54 St.Rep. 482. We have held that for a 6defendant accused of deliberate homicide to be entitled to an instruction on mitigated deliberate homicide, the defendant must put forth some evidence demonstrating that he or she actedunderextreme mental oremotional stress for which there is reasonable explanation


# ------ or excuse. State v. Heit (1990), 242**Mon~88,** 492, 791 P.2d 1379, 1382.**~21** Howell argues that the District Court erredby refusing his proposedjury instruction
on attempted mitigated deliberate homicide as the record contains sufficient evidence for a juryto convicthim ofthis offenseratherthan ofattempted deliberate homicide. Specifically, he argues that his testimony and that ofDr. Peters presented evidence that he was acting underthe influence ofextreme mental or emotional stress for which there was a reasonable explanation. We determine that the record is void ofany such evidence.**~22** After examining Howell, Dr. Peters testified that Howell had been hospitalized as a teen for personality disorder and aggression and that he still suffers from a depressive disorder. He testified that Howell's disorder causedhim to be hypersensitive to the behavior ofothers and to become easily irritated and angered. However, Dr. Peters concluded that "[a]t the time ofthe offense it did not appear that signs or symptoms ofthe depressive disorderwere manifest." He also notedthathe found no evidence ofpsychotic-type thinking, hallucinations, or delusions. Dr. Peters concluded that "by using alcohol, [Howell] disinhibited his controls."**~23** This Courthasrepeatedlyheldthat simplybeing intoxicated or angry does not support
a finding ofextreme mental or emotional stress for which there is a reasonable explanation

7or excuse. Goulet, 938 P.2d at 1332-33; State v. Williams (1993), 262 Mont. 530,541, 866 P.2d 1099, 1106. Dr. Peters testified that while Howell does suffer from a personality disorder, his use ofalcohol caused him to lose control and was the main, overriding factor in the incident. ,-r24 Howell testifiedthat he was afraid ofOliverbecause he knew him to be an aggressive drunk. He statedthat when he saw Oliver attacking his defenseless friend, he felt he had to intervene. However, Howell's anger or fear, without more, does not support a finding of extreme mental or emotional. stress for which there is a reasonable explanation or excuse. Williams, 866 P.2d at 1106. Therefore, we holdthatthe District Court didnot errinrefusing Howell's proposed instruction on attempted mitigated deliberate homicide. ,-r25 2. Did the District Court err in refusing to instruct the jury on the offenses of aggravated and felony assault? ,-r26 Howell argues that he was entitled to instructions on aggravated and felony assault. One commits the offense ofaggravated assault "ifthe personpurposely orknowingly causes serious bodily injuryto another." Section45-5-202(1), MCA. Aperson commits the offense offelony assault "ifthe person purposely or knowing causes bodily injury to another with
a weapon." Section45-5-202(2)(a), MCA. Assaultis a lesserincluded offense ofthe crimes ofdeliberatehomicide and attempteddeliberate homicide. See State v. Sellner (Mont. 1997),

_ P.2d_,54 St.Rep. 1464; Castle, 948 P.2d at 691. ,-r27 In Castle, the defendant was charged with deliberate homicide. The testimony at trial establishedthatthe defendantpunchedthe victim three times in thejaw and once on the side
8ofthe head, but that another man stabbed the victim several times and kicked the victim in the head. Castle, 948 P.2d at 691. The pathologist who examined the victim testified that the causes ofdeath were stabbing and severe blunt force injuries to the head. He stated that the type ofblows that caused this injury were not simple punches or even the type ofpunch that would normally be inflictedby a boxer. Castle, 948 P.2d at 691. ,-r28 The district court refused the defendant's request forjuryinstructions on assault. On appeal, we held: Although this Court holds that assault is an included offense, that does not mean that an instruction on this offense mustbe given every time a defendant is charged with deliberate homicide. Rather, there must be some basis from which ajurycouldrationally conclude thatthe defendant is guilty ofthe lesser, butnot the greater offense. Castle, 948 P.2d at 691. We determined that the testimony and medical evidence were consistent with the defense theory that, although the defendant punched the victim, those blows only amounted to assault and did not cause his death. We held that the district court erred in not instructing thejury on assault. Castle, 948 P.2d at 692. ,-r29 In contrast, there is no evidence in this case that any person other than Howell caused Oliver's injuries. Howell admitted that he came up behind Oliver and put a knife to his throat. However, Howell stated that Oliver fell on top ofhim and was cut accidentally when Howell pulledhis arm away. Stanwoodtestified that she saw Howell pull Oliver's headback and slithis throat. Thus, all parties agree that Howell cut Oliver, and the only disputed issue

9is whether the record contains any evidence that Howell intended to inflict bodily injury rather than death.**~30** A similar challenge was raised in Sellner, 54 St.Rep. at 1464. In that case, Sellner
was convicted ofattempted deliberate homicide in the shooting ofa police officer. Police officers went to Sellner's home to investigate a reported assault. As the police officers were driving away, they spotted Sellnerriding in a vehicle andproceededto pull that vehicle over. Sellner, 54 St.Rep. at 1464. Sellnerjumped out ofthe vehicle and ran into the woods. An officer followed and shouted for Sellnerto stop, but Sellnerturned and shot the officerin the chestwith a .41 caliberhandgun. The officer, who was wearing a bulletproofvest, survived the shooting. Sellner, 54 St.Rep. at 1465.**~31** At trial, Sellner admitted that he shot at the officer several times, aiming at the officer's chest. Sellner, 54 St.Rep. at 1466. Sellnertestified thathe had heard a voice telling him that the officer was wearing a vest and that ifhe shot him in the chest he would not hurt him. A physician testified at trial that the officer's injuries would likely have been fatal had he not been wearing the bulletproofvest. Sellner, 54 St.Rep. at 1466.**~32** The district court refusedto instruct thejury on assault, and Sellner was convicted of attempted deliberate homicide. Sellner, 54 St.Rep. at 1466. On appeal, this Court held: "From the evidence presented at trial, it would be irrational to conclude that Sellner's shooting ofParcell in the chest with a large caliber soft-pointbullet was done with any intent other than to cause a person's death." Sellner, 54 St.Rep. at 1466. We determined that

10Sellner's testimony, that voices had assured him the officer would not be hurt, ifbelieved, would support an acquittal, not a conviction for assault. Sellner, 54 St.Rep. at 1466. ,-r33 Likewise, in 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 ofOliver's carotid artery andjugularvein. Dr. Gould testified: "You could not get [a] more uniform [cut] without trying." ,-r34 The record contains no evidence that Howell intended to inflict bodily injury rather than to cause the death ofOliver. 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 it or he's going to get up and kick the shit out ofme. Howell then stated that he did not intend to injure Oliver, but cut him accidentally. This theory, ifaccepted, would support an acquittal, not a conviction for assault. Therefore, we hold thatthe District Court did not errinrefusing to instructthejuryon aggravated orfelony assault. ,-r35 Based on the foregoing, we affirm the decision ofthe District Court.

Justice

11We concur:

12