No. 82-180 (A) 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF I4OTJTAIJA1 

Plaintiff and Respondent, 

-vsARROW WEINBERGER, 

Defendant and Appellant. 

Appeal from: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable P'I. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

Skedd, Ashley, McCabe, Weingartrier & NcCarter ; 

J. C. Weingartner argued, Helena, &Tontana 

For Respondent: 

Hon. Mike Greely, Attorney General, Eel-ena, Montana 

Chris Tweeten argued, Asst. Atty. General, Helena, 

James McCann, County Attorney, Wolf Point, blontana 

Submitted: January 10, 1983 

Decided r June 6, 1983 

Filed: 6 1983 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Arrow Weinberger was convicted of deliberate 

homicide by a Roosevelt County jury for the shooting death 

of Floyd "Scotty" Azure at a Culbertson service station on 

December 5, 1982. Defendant's twenty-year-old son, Adam, 

was convicted of felony murder for his part in the incident. 

Arrow was sentenced to serve seventy years in the Montana 

State Prison and was ordered to pay certain expenses 

incurred in the presentation of the charges against him. 

His motion for a judgment notwithstanding the verdict or for 

a new trial was denied. He appeals. We affirm. 

The circumstances leading up to the shooting at a 

Culbertson service station began sometime earlier. Adam 

Weinberger, a resident of Fort Smith, Arkansas, had been 

living in northeastern Montana. Beginning in June 1981, he 

attempted to establish a relationship with Luanne Azure, the 

seventeen-year-old daughter of Scotty and Gloreen Azure. 

Azures were opposed to an involvement between Luanne and 

Adam because he was older than Luanne and because of Adam's 

failure to "act like a gentleman." Despite Azures' opposition, Adam and Luanne continued to see each other. 

On November 10, 1981, Luanne ran away from home with 

three friends and went to Havre, Montana. Adam did not 

accompany Luanne to Havre, but she called him from there and 

made arrangements to meet him in Williston, North Dakota. 

Azures searched the Poplar area for Luanne without success. 

On November 12, they traveled to Williston to look for her. 

They found Adam Weinberger, who falsely told them that he 

had not seen Luanne and thought she was in Havre. Later 

that day Azures discovered Luanne in Williston and learned 
that she had in fact been with Adam. 

Azures began to watch Luanne closely to keep her away 

from Adam. They also fileci a complaint in Tribal Court 

alleging that Adam had contributed to Luanne's delinquency 

by enticing her out of the family residence against her 

parents1 wishes and after curfew. The complaint asked that 

Adam be restrained from further contributing to her delinquency and that he be kept away from Azures' residence at 

all times. Sometime after the complaint was filed, Arrow 

Weinberger came to the Poplar area from Fort Smith, 

Arkansas. 

On December 1, Luanne again ran away from home. 

Azures were convinced that Luanne was with Adam based upon 

the Williston incident. They immediately enlisted the help 

of local law enforcement officers and began to search for 

Luanne and for Weinbergers. At the Azuresl request, police 

stopped Arrow Weinbergerls Cadillac to look for Luanne. 

Both Adam and Arrow later went to Azuresl home to register 

their displeasure at being stopped. Arrow was angry and 

told Azures that he did not like to get upset "because when 

I get upset, I stay upset . . ." 

Azures continued to search the Poplar area for Luanne. 

On the evening of Friday, December 4, they contacted Roy 

Trottier, a federal Indian police officer, and sought his 

help. The next morning, Azures discovered that Luanne had 

been seen with Adam on the day she disappeared. They 

immediately contacted Trottier and told him that if they 

found Adam they would report his whereabouts to the police 

and that if they found Luanne they would bring her to the 

police. Trottier approved the plan. Luanne had, in fact, 
been in contact with Adam Weinberger and he knew that she 

was in the Billings area. She planned to go to Fort Smith, 

Arkansas, with him. 

Scotty and Gloreen Azure then began to search for Adam 

Weinberger's car. They later enlisted the help of Gloreen's 

sister, Carol Lee Azure, and Carol Lee's husband, Rodney. 

Rodney was Scotty Azure's cousin. Carol Lee and Rodney 

Azure found Adam's car in Brockton that afternoon and 

notified the police. The police dispatcher sent an officer 

to Brockton, but he apparently was unable to locate the car. 

Carol Lee and Rodney then attempted to find Scotty and 

Gloreen Azure. They encountered the Azures following Adam 

Weinberger's car on the Fort Kipp Road and turned around to 

follow the cars toward Culbertson. The three cars were then 

passed by Arrow Weinberger's white Cadillac. At a signal 

from Adam, Adam and Arrow pulled their cars to the side of 

the road and stopped. The two Azure cars proceeded into 

Culbertson and stopped at the Standard gas station. Scotty 

parked at the side of the station. Rodney parked several 

car lengths behind a red pickup that was also parked at the 

side of the station. The two Azure women went into the 

station to ask the attendant to call the police dispatcher. 

Scotty and Rodney remained outside. 

At the time of the roadside stop, each Weinberger 

vehicle had two occupants. Arrow Weinberger was accompanied 

by his brother, Frank. Adam was accompanied by a hitchhiker 

named Thomas Hanzlick. When Adam returned to his car at 

that stop after talking with Arrow, he told Hanzlick that 

Arrow was going to ''run down1' the Azures and talk to them. 

The Weinberger vehicles continued into Culbertson and 
also stopped at the Standard station. Arrow parked his car 

almost directly behind Scotty Azure's with about six feet of 

space between the vehicles. Adam parked his car angling 

into the passenger's side of Scotty's car with several feet 

of clearance between the vehicles. The red pickup truck was 

parked parallel to the driver's side of Scotty's car at a 

distance of nine and one-half feet away. 

Scotty Azure stood between his car and the red pickup 

near the open driver's door of his car as Weinbergers pulled 

into the station. Arrow got out of his car and told Scotty 

to leave his son alone. Adam crossed between Scotty's car 

and Arrow's Cadillac to the back of the red pickup, saying, 

"get your bat out, Azure." He then began to drag a logging 

chain out of the pickup which he doubled over and started to 

swing at Scotty. Rodney Azure grabbed the other end of the 

eighteen-£ oot-long chain as Adam threw the chain toward 

Scotty. Scotty deflected the chain with a baseball bat he 

had retrieved from his car. Arrow Weinberger then drew a 

.25 caliber pistol and shot Scotty Azure once in the chest, 

killing him instantly. Arrow claimed that he acted in selfdefense after Scotty had hit him with the bat once and tried 

to hit him again. Other witnesses placed the two at a 

distance of fifteen-to-twenty feet apart. The jury found 

Arrow Weinberger guilty of deliberate homicide. 

Arrow Weinberger presents this Court with six issues 

on appeal: 

1. Whether the instructions taken as a whole correctly defined the offense of deliberate homicide; 

2. Whether certain hearsay testimony should have been 

submitted to the jury; 
3. Whether "other crimes" evidence was erroneously 

introduced against defendant; 

4. Whether the prosecution's trial tactics deprived 

defendant of a fair trial; 

5. Whether section 46-18-232, MCA, which allows 

imposition of trial costs against a convicted defendant, is 

unconstitutional; and 

6. Whether defendant was properly sentenced. 

Defendant first argues that a jury instruction defining deliberate homicide omitted an essential element of the 

crime. Instruction No. 11 provided: 

"You are instructed that to sustain the 

charge of Deliberate Homicide against 

Arrow Weinberger the State must prove 

that the Defendant Arrow Weinberger purposely or knowingly performed the act or 

acts causinq the death of Flovd Azure. 

"If you find from your consideration of 

all the evidence that this proposition 

has been proved beyond a reasonable 

doubt, then you should find Defendant 

Arrow Weinberger guilty of Deliberate 

Homicide." (Emphasis added.) 

Defendant challenges this instruction as incomplete on the 

basis that it allowed the jury to convict him of deliberate 

homicide if it found he intended to perform the act which 

caused death rather than intending death as the result of 

the act. We disagree for several reasons. 

First, this instruction, taken in context with the 

other instructions and placed within the framework of the 

issues and arguments presented throughout the trial, did not 

allow the jury to convict Arrow if it found that he had only 

intended to pull the trigger. This Court has recognized that 

in the case of deliberate homicide, the requisite mental 

state attaches to the result: 
"In Montana, a person commits the offense 

of deliberate homicide if he purposely or 

knowingly causes the death of another 

human being . . . The statutorily defined 

elements of the offense, each of which 

the State must prove beyond a reasonable 

doubt, are therefore causing the death of 

another human being with the knowledge 

that you are causing or with the purpose 

to cause the death of that human being." 

(Emphasis added.) State v. McKenzie 

(1978), 177 Mont. 280, 327-328, 581 P.2d 

1205, 1232, vacated on other grounds, 443 

U.S. 90$$ 99 S.Ct. 3094, 61 L.Ed.2d 871. 

Here, we find that the jury was thoroughly instructed and 

could not have convicted Arrow unless it found that he had 

performed the act or acts causing Azure's death with the 

knowledge that he was causing or the purpose to cause 

Azure's death. 

At the outset of trial, the jury was informed that the 

specific charge against Arrow was that: 

". . . Arrow Weinberger purposely or 

knowingly caused the death of Floyd Azure 

by shooting him in the heart area of the 

chest with a .25 calibre automatic pistol 

causing Floyd Azure to die almost instantly from a severed pulmonary aortic 

artery . . ." 

From that point, the focus of the trial was on the events 

leading to Azure's death and on whether the shooting was 

deliberate, accidental or an act of self-defense. Arrow 

presented extensive direct testimony that conflicted with 

the State's evidence and he presented evidence through 

cross-examination that supported the defense theories of 

accident or self defense. The jury was thoroughly instructed 

on both theories and both were thoroughly argued. In fact, 

no fewer than twelve instructions of the fifty-five given to 

the jury defined self-defense, the circumstances in which it 

may be used, and the permissible amount of force which may 

be used. Where "all the instructions, reviewed as a whole, 
fairly and accurately present the case to the jury," we will 

not overturn a conviction. State v. Riley (1982), 

Mon t . , 649 P.2d 1273, 1281, 39 St.Rep. 1491, 1501; 

State v. Johnson (1982), Mont . , 646 P.2d 507, 512, 

39 St.Rep. 1014, 1020. 

In addition to the self-defense instructions, the 

jurors were instructed: that they must consider the instructions as a whole (#I); that each material allegation and 

fact charged under the specific charge against Arrow must be 

proved beyond a reasonable doubt (#8); that the requisite 

mental state was "purposely" or "knowingly" with regard to 

the result of the conduct described by the statute defining 

an offense (#31, #32); the statutory definition of "purposely" and "knowingly" (#31, #32); the statutory definition 

of deliberate homicide (#lo); that both act and mental state 

must be proved beyond a reasonable doubt (#39); that a person must have the requisite mental state with respect to 

each element of the offense (#24); that death occurring from 

accident or misfortune is not sufficient to convict of deliberate homicide (#15); that the fact a death occurred is not 

sufficient proof, standing alone, that a crime was committed 

(#16). 

We reject the tortured interpretation the dissenters 

give to Instruction No. 11. They argue that Instruction No. 

11 is in conflict with the other instructions. Viewed in 

context of the facts of this case, the arguments presented 

at trial, and all of the instructions charged to the jury, 

we find their stance untenable. We hold that the instructions taken as a whole fairly and accurately presented the 

case to the jury and were sufficient. 
The second basis on which we reject a challenge to 

Instruction No. 11 is that defendant did not properly object 

to it; nor did he take the opportunity presented at trial to 

cure any deficiency in the instruction. As instructions were 

being settled, the State offered its proposed Instruction 

No. 8, which was given as the Court's Instruction No. 11. 

The following exchange took place: 

"MR. CHARLES MOSES [Defense Counsel] : We 

would object to Plaintiff's 8 upon the 

following grounds, upon the following 

grounds: that this is an element and 

issues instruction and it is incomplete; 

the State is required to prove, number 1: 

the State is implying that it was done 

knowingly or purposely; number 2, that it 

was done with intent to kill, which requires under deliberate homicide a specific purpose to kill under the statute; 

number 3, that it has to be committed 

within the county; number 4, the death 

must be a result of deliberation. 

"THE COURT: Do you have instruction like 

that in yours? 

"MR. CHARLES MOSES: No I don't have that. 

"THE COURT: Well if you will prepare one 

chat has all of those thinqs, - ---------- we will 

take a look at it. 

"MR. MOSES: Okay, Your Honor. 

"THE COURT: Otherwise, I believe I will 

give this one. 

"THE COURT: I will give it unless--I 

don't think we have to allege that it was 

in Roosevelt County, that is a legal 

question. Culbertson is in Roosevelt 

County, Montana, and the act was committed in Roosevelt County, Montana and in 

addition I would take judicial notice of 

the fact that Culbertson is in Roosevelt 

County, Montana. I don't think that 

these instructions have to have all that 

stuff in it. 8 will be given. As I 

------ understand ------- it -- you're saying and it is 

your position that you have to prove ......................... - seecific --- - intent in the statutory lan- - - -- - - --- guage, purposely, knowingly - ---------- under the 
United States Supreme Court rulinus? 

"MR. CHARLES MOSES: Right. " (Emphasis 

added. ) 

While defendant objected on the ground that the 

instruction was incomplete, it is apparent from the discussion that then followed that the crux of the objection was 

that it did not require that the State prove a specific 

intent to kill but that it allowed the State to imply such a 

specific intent within the statutory mental states of purposely or knowingly. Defense counsel argued first that the 

jury be instructed that defendant must have had a specific 

purpose to kill and that the death must have been a result 

of deliberation. He also argued that the jury be instructed 

that the crime had to have been committed within the county. 

The District Court took judicial notice of venue. The first 

argument propounded by defense counsel is not the law in 

Montana. 

The State need not establish a specific purpose to 

kill. Nor must it show that death was the result of deliberation other than the deliberation implicit within the statutory definitions of "purposely" and "knowingly." State v. 

Sharbono (1977), 175 Mont. 373, 392, 563 P.2d 61, 72-73. 

See also, Criminal Law Commission Comments to section 45-5- 

102, MCA. 

Where a person is aware that it is highly probable 

that a certain result will be caused by his conduct, he acts 

knowingly with respect to the result of that conduct. Section 45-2-101(33), MCA. Where it is a person's conscious 

object to engage in certain conduct or to cause a particular 

result he acts purposely with respect to that conduct or its 

result. Section 45-2-101(58), MCA. The Compiler's Comments 
to section 45-5-102, MCA, at 123, defining deliberate homicide, note that: 

"'Purposely' . . . is the most culpable 

mental state and implies an objective or 

design to engage in certain conduct, al- 

---- though ------ not Earticularly --__------_------------ toward some 

result. 'Knowingly' . . . refers to a 

state of mind in which a person acts, 

while not toward a certain objective, at 

------------- least with full knowledge of relevant 

facts and circumstances. Toqether these 

terms replace the concepts of malice and 

intent . . . premeditation is no longer 

an element of homicide . . ." (Emphasis 

added. ) 

We agree. We have previously recognized the legislative 

changes in the requirements of mens rea. State v. Sharbono, 

supra, 175 Mont. at 392-394, 563 P.2d at 72-73; State v. 

Coleman (1978), 177 Mont. 1, 30-31, 579 P.2d 732, 750, cert. 

denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177. Here, 

defendant's objection to Instruction No. 11 on the ground 

that it was incomplete is founded upon mens rea requirements 

that are no longer the law in Montana. 

Defendant also failed to take the opportunity provided 

by the District Court to draft an alternative instruction. 

Instead, after instructions had been read to the jury and 

the State had presented its initial final argument, defense 

counsel resubmitted its proposed Instruction No. 35: "You 

are instructed that with respect to the crime alleged of 

deliberate homicide, a specific purpose to kill is an element of such a charge and must be proven beyond a reasonable 

doubt." This proposed instruction was properly refused both 

times. We conclude that defendant's contention that Instruction No. 11 was incomplete is without merit. 

Defendant next challenges the introduction of certain 

hearsay statements into evidence. He raises three separate 
arguments in attacking admission of the hearsay statements. 

First, he contends that two preshooting statements were not 

admissible because they were hearsay or double hearsay and 

because they were irrelevant. Second, he contends that the 

State failed to give notice of two admissions pursuant to 

section 46-15-303, MCA, and should therefore not have been 

allowed to introduce the statements. Third, he contends 

that the admission of four inculpatory statements made by 

Adam, his nontestifying codefendant, were Bruton infractions 

that violated the confrontation clause of the Sixth Amendment to the United States Constitution. Bruton v. United 

States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. 

The preshooting hearsay statements that were admitted 

and that defendant challenges were made by Gloreen and 

Luanne Azure. Gloreen Azure was questioned during crossexamination on her basis for believing that Weinbergers 

might know of Luanne's whereabouts. The State was allowed 

to develop those reasons on redirect examination and testimony on Adam's involvement in Luanne's trip to Williston was 

admitted. Gloreen was also asked why she believed that 

Arrow could be involved with Luanne's disappearance. She 

answered : 

"I was told that he was on his way up 

here, and he didn't care how much money 

it cost him, and he was bringing a lawyer 

and he was going to prove that his son 

was an angel . . ." 

Luanne was questioned on Weinbergers' knowledge of her 

whereabouts during early December. She testified that she 

and Adam planned to go to Arkansas; that she left a note 

telling him she was going to Billings; that he showed the 

note to Arrow; and that Arrow said it "sounded good" to him. 
Both statements were objected to as hearsay, or as double 

hearsay, pursuant to Rule 805, Mont.R.Evid. 

The District Court properly allowed the first statement into evidence with an instruction that it was not 

offered to prove the truth of the matter asserted but was 

offered only to show why Gloreen acted and believed as she 

did. The statement was relevant to the issue of defendant's 

state of mind and motive. In a case where self-defense is 

raised, the state of mind and intent of the defendant is the 

primary issue. The jury is entitled to know, so far as 

evidence is available, all the facts and circumstances which 

tend to throw light upon the parties and their relations and 

feelings toward each other. State v. Hollowell (1927), 79 

Mont. 343, 356-357, 256 P. 380, 385. The jury was entitled 

to view Scotty Azure's death in the context of these prior 

events. State v. Riley, supra, 649 P.2d at 1280, 39 St.Rep. 

at 1499. 

Most of Luanne's statement was nonobjectionable and 

was properly admitted. Only the second part of the statement 

(Arrow's knowledge and approval of Luanne's trip to 

Billings) should not have been admitted into evidence. 

Defendant contends that viewed in the context of Gloreen's 

statement and the reference made to the tribal complaint 

filed against Adam, the comment was prejudicial. We will 

address this contention within the framework of defendant's 

argument on "other crimes" evidence. 

Defendant argues that Luanne's statement constitutes 

evidence of other crimes and that it does not meet the fourprong test of admissibility that this Court set forth in 

State v. Just (1979), Mont. , 602 P.2d 957, 36 
St.Rep. 1649. We agree that it does not meet the Just test. 

It need not. We reject defendant's contention that it 

constitutes evidence of other crimes. Defendant failed to 

object to admission of the statement at trial on these 

grounds and may not do so now. State v. Campbell (1981), 

Mont . , 622 P.2d 200, 202, 38 St.Rep. 19, 22. Nor 

has Arrow convinced us that the jury would recognize as 

"another crime" the tenuous connection he attempts to draw 

between: (1) a complaint filed against Adam in Tribal Court; 

(2) Adam's plan to take Luanne to Arkansas; (3) Arrow's 

knowledge that Luanne left a note saying she went to 

Billings; and, (4) Arrow's statement that "it sound[ed] good 

to [him] . " The connection appears to be too flimsy to merit 

serious consideration. In a criminal case where prejudice 

is alleged, it must be established from the record that a 

substantial right was denied. State v. Dupre (1982), 

Mon t . , 650 P.2d 1381, 1386, 39 St.Rep. 1660, 1666; 

section 46-20-701, MCA. Defendant has failed to demonstrate 

such prejudice. 

Defendant next challenges the introduction of several 

statements which were not included within the "Notice of 

Confessions and/or Admissions" filed by the State in 

response to defendant's motion requesting production of such 

statements. Defendant contends that the District Court erred 

in ruling that the motion was moot as a result of the notice 

filed. We agree. Section 46-15-303, MCA, provides: 

"Motion to produce confession or admission. (1) On motion of a defendant in any 

criminal case made prior to trial, the 

court shall order the state to furnish 

the defendant with a copy of any written 

confession or admission and a list of the 

witnesses to its making. If the defendant 

has made an oral confession or admission, 
a list of the witnesses to its making 

shall be furnished. 

"(2) The list of witnesses may, upon 

notice and motion, be amended by the 

state prior to trial. 

"(3) No such confession or admission 

shall be received in evidence which has 

------------ not been furnished in compliance with 

subsection (1) unless the court is satisf ied that the prosecutor was unaware of 

the existence of such confession or admission ~rior to trial and that he could 

not have become aware of such in the 

exercise of due diligence. " (Emphasis 

added. ) 

The record does not support a finding by the District 

Court that the prosecutor was unaware of the existence of 

the statements. The District Court therefore had no discretion to allow the statements into evidence. 

The first statement was made by Adam in the service 

station after the shooting. He said, "What do you expect, 

they were tailgating us." The prosecutor failed to provide 

this statement to defendant since he first became aware of 

it after the "Notice of Confessions and/or Admissions" was 

filed. The District Court properly provided defense counsel 

the opportunity to interview all possible witnesses to the 

making of the statement before it was allowed into evidence. 

The second statement was made by Adam to the hitchhiker, 

Hanzlick. As Adam stopped at the service station, he asked: 

"Are you ready to fight?" Defense counsel objected to the 

State's attempt to introduce this statement in its crossexamination of Hanzlick. After discussion outside the 

presence of the jury, the District Court struck the statement and used an admonishment framed by defense counsel to 

instruct the jury to disregard it. No motion for mistrial 

was made. The existence of a similar statement ("we might 
see a fight") had been provided in an affidavit supporting 

the amended complaint and its admission had been argued 

earlier in the trial. 

Defendant has failed to demonstrate prejudice arising 

from the failure to provide notice of these statements as 

distinguished from the introduction of the statements 

themselves. The purpose of the statute requiring production 

of confessions and admissions is to allow the defendant to 

prepare a defense to the statements. Here, defendant was 

given the opportunity to interview any possible witnesses to 

the making of the first statement before it was introduced. 

The second statement was not admitted, and the jury was 

admonished with an instruction prepared by defense counsel. 

While the substance of the statements may have been detrimental to defendant, he has not demonstrated prejudice 

stemming from the State's failure to produce the statements 

prior to trial. 

Defendant finally argues that four statements attributed to his nontestifying codefendant were admitted in 

violation of the confrontation clause of the United States 

Constitution. The four out-of-court statements were introduced through four witnesses. 

Gloreen Azure testified that after the shooting Adam 

said to her, "I hope you are satisfied, you caused all of 

this trouble." Rodney Azure testified that after the shooting Adam said to him, "What did you expect, they were tailgating us." The third statement was introduced through the 

testimony of Arthur Sarnow, who transported the Weinbergers 

and Tom Hanzlick from the scene of the shooting. He testified that Adam turned toward Arrow Weinberger, Frank Wein- 
berger, and Hanzlick and said, "That's one and four to go." 

The last of the statements was Hanzlickls stricken statement. Adam asked, " [a] re you ready to fight?" as they 

drove into the service station. Arrow contends that these 

statements violate the rule announced in Bruton. 

In Bruton the United States Supreme Court held that 

"where the powerfully incriminating extrajudicial statements 

of a codefendant who stands accused side-by-side with the 

defendant, are deliberately spread before the jury in a 

joint trial," limiting instructions to the jury to disregard 

the statements inculpating the defendant are inadequate. 

Bruton, supra, 391 U.S. at 135-136, 88 S.Ct. at 1628, 20 

L.Ed.2d at 485. The facts in Bruton are clearly distinguishable from the case before us. 

In Bruton the nontestifying codefendant, Evans, confessed orally that he and Bruton committed a robbery. The 

confession was admitted, and the jury was instructed that it 

was competent only against Evans. The Court reversed based 

upon, first, the fact that the statements were "powerfully 

incriminating" and "devastating" to Bruton and, second, upon 

the recognized motivation to shift blame onto others. It 

concluded that: 

"The unreliability of such evidence is 

intolerably compounded when the alleged 

accomplice, as here, does not testify and 

cannot be tested by cross-examination. 

It was against such threats to a fair 

trial that the Confrontation Clause was 

directed." Bruton, supra, 391 U.S. at 

136, 88 S.Ct. at 1628, 20 L.Ed.2d at 485. 

Extrajudicial statements of a nontestifying codefendant do not always require reversal. State v. Powers (1982), 

Mon t . , 645 P.2d 1357, 1363, 39 St.Rep. 989, 996; 

Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 
1726, 23 L.Ed.2d 284; Schneble v. Florida (1972), 405 U.S. 

427, 92 S.Ct. 1056, 31 L.,Ed.2d 340. A criminal defendant is 

entitled to a fair trial .but not a perfect one. State v. 

Powers, supra; Bruton v. United States, supra. In accord, 

.i.~r,z.~)< 

-I&hmirv. United States (1953), 344 U.S. 604, 73 S.Ct. 481, 

97 L.Ed. 593; Brown v. United States (1973), 411 U.S. 223, 

93 S.Ct. 1565, 36 L.Ed.2d 208; Michigan v. Tucker (1974), 

417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. 

Where a statement has been edited to remove specific 

references to codefendants, it is admissible in a joint 

trial. United States v. Stewart (5th Cir. 1978), 579 F.2d 

356, cert. denied, 439 U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 

332; United States v. Holleman (7th Cir. 1978), 575 F.2d 

139; United States v. Dady (6th Cir. 1976), 536 F.2d 675 

(per curiam); United States v. Wingate (2nd Cir. 1975), 520 

F.2d 309, cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 

L.Ed.2d 84; United States v. Alvarez (3rd Cir. 1975), 519 

F.2d 1052, cert. denied, 423 U.S. 914, 96 S.Ct. 221, 46 

L.Ed.2d 143;. United States v. Panepinto (3rd Cir. 1970), 

430 F.2d 613, cert. denied, 400 U.S. 949, 91 S.Ct. 258, 27 

L.Ed.2d 256; United States v. Lipowitz (3rd Cir. 1969), 407 

F.2d 597, cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 

Similarly, where a statement is not powerfully 

incriminating but implicates the complaining defendant "only 

to the extent that the jury may make inferences based on 

other clearly admissible evidence," it does not violate the 

Bruton rule. United States v. Belle (3rd Cir. 1979), 593 

F.2d 487, 495 (en banc), cert. denied, 442 U.S. 911, 99 

277 

S.Ct. 2825, 61 L.Ed.2d 4343; cf., United States v. Winograd 
(7th Cir. 1981), 656 F.2d 279, 283, cert. denied, 455 U.S. 

989; United States v. DiGregorio (1st Cir. 1979), 605 F.2d 

1184, 1190, cert. denied, 444 U.S. 937, 100 S.Ct. 287, 62 

L.Ed.2d 197; English v. United States (7th Cir. 1980), 620 

F.2d 150, 153, cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 

L.Ed. 2d 75. Winograd, DiGregorio and English each analyzed 

whether the statement was vitally important to the government's case or whether it was simply linkage testimony that 

was incriminating only in conjunction with other facts. See 

also, Stinson v. State (A1a.Crim.A~~. 1981), 401 So.2d 257, 

261; Commonwealth v. Rawls (1980), 276 Pa.Super. 89, 419 

A.2d 109, 111-112. 

Here, we must examine the four challenged statements 

in the context of the entire trial. Defendant argues that 

he was denied his right to confront his accusors as guaranteeu by the Sixth Amendment of the United States Constitution. We disagree. 

The four statements were introduced through four of 

twenty-three witnesses presented by the State. Defendant 

presented seven witnesses, including his own testimony. 

Defense counsel was af forded full opportunity to crossexamine all of the State's witnesses. The statements were 

not critical to the State's case against Arrow in light of 

eyewitness testimony describing the final confrontation 

between Arrow and the victim. Nor were they "powerfully 

incriminating" to Arrow. None of the statements directly 

implicated Arrow by name. None directly connected him with 

Azure's murder. None of the four statements was challenged 

on the basis of a denial of confrontation. We will examine 

each statement and its admission into evidence in turn. 
The first statement defendant challenges was introduced through Gloreen Azure on redirect examination. The 

prosecutor asked Gloreen: 

"Q. Do you recall talking to Adam Weinberger, the defendant, at that time, 

stating to him that 'you had killed him'? 

A. He said I hope you are satisfied, you 

caused all of this trouble." 

No objection was raised at trial to the admission of 

this statement. On appeal, defendant fails to demonstrate 

that its admission constitutes prejudicial error. At most, 

this statement can be viewed as linkage testimony that is 

incriminating only in conjunction with other facts. It does 

not demonstrate a codefendant's "recognized motivation to 

shift blame onto others." Bruton v. United States, 391 U.S. 

at 136, 88 S.Ct. at 1628, 20 L.Ed.2d at 485. If anything, 

the statement serves as an admission against interest that 

tends to incriminate Adam himself. Rule 801(d)(2)(A), 

Mont.R.Evid. This statement was not vital to the State's 

case against Arrow. We find no prejudice. 

Nor do we find that admission of the second statement 

was prejudicial. It was introduced through the direct 

examination of Rodney Azure. Defense counsel first objected 

to its introduction on the basis that no notice was provided 

to the defendants of the statement. The District Court 

remedied that omission by allowing defense counsel to 

subpoena and interview any possible witnesses to the making 

of the statement. Counsel next objected on the basis of 

lack of foundation. The witness then provided testimony on 

the time, place and people present. Finally, the witness, 

Rodney Azure, testified as follows: 

"Q. And did you hear him make any statements at that time, Adam Weinberger? A. 
I heard it yes. 

"Q. You did hear him make a statement? 

A. Yes. 

"Q. And to whom were they directed? A. 

I don't know who they were directed to, 

it seems like he was just glaring. 

"Q. And what did he say? A. He said 

'What do you expect, they were tailgating 

us'." 

No further objection was raised. Nor has prejudice 

been demonstrated. This statement again can serve at most 

as linkage testimony. Without the establishment of other 

facts, Adam's comment is not powerfully incriminating to 

Arrow. Nor, in light of the other evidence produced at 

trial, is it vital to the State's case against Arrow. It 

does not shift blame from Adam to Arrow. We find no Bruton 

violation. 

The third statement, the most incriminating of the 

four, is still incriminating only in light of other clearly 

admissible evidence presented at trial and is therefore mere 

linkage testimony. It was introduced through the testimony 

of Arthur Sarnow, a G.V.W. officer for the Montana Highway 

Department. Sarnow was asked by a sheriff's deputy to assist 

in moving the three Weinbergers and Tom Hanzlick from the 

scene of the shooting. The only objection raised by defendant as to Sarnow's testimony was the following objection on 

the basis of foundation: 

"Q. Okay, and while you were in the 

patrol car, did you hear one of these two 

defendants say anything to the other one? 

A. Yes sir I did. 

"Q. And who did you hear say something? 

A. The young boy in the pink there. 

"Q. And who did he say it to? A. To the 

back seat where the other three people were sitting. 
"Q. And that is where the other defendant 

was seated? A. Yes, in the middle in the 

back, yes. 

"Q. And do you recall what he said? 

"MR. S. MOSES: Your Honor, I am going to 

ask for a further foundation as to who 

was sitting in the car. 

"MR. RACICOT: We have already did that, 

Your Honor. 

"MR. S. MOSES: You only talked about the 

defendants though. 

"THE COURT: Okay, who was the driver and 

SO on. 

"A. Duane Rasmussen, Roosevelt County 

deputy sheriff was driving. 

"Q. And you were sitting where? A. On 

the passenger side, against the window. 

"Q. And where was the defendant Adam 

Weinberger, the young son sitting? A. 

The young one was between Duane and I in 

the front seat. 

"Q. And what did he say when he turned 

around to the back seat? A. He turned 

towards me to the back seat and he said 

'That's one and four to go'." 

Again, this testimony incriminates Arrow only when linked 

with other facts introduced at trial. It does not attempt 

to shift blame from Adam to Arrow. It rather tends to 

incriminate Adam himself. No Bruton objection was raised. 

We find no violation. 

The last statement defendant challenges was introduced 

through the following recross-examination of the hitchhiker, 

Tom Hanzlick: 

"Q. Do you recall when you pulled up 

with Adam Weinberger in the car and 

telling me that Adam Weinberger said, 

when you pulled up in the car and parked 

at the Culbertson station? A. Yes, do I 

recall it, yes sir. 

"Q. What did he say to you? 
"MR. S. MOSES: Your Honor, was it what 

Adam said? 

"MR. RACICOT: Right, what Adam Weinberger 

said. 

"THE COURT: It doesn't refer to someone 

else? 

"MR. RACICOT: It doesn't refer to anybody 

else, it is what Adam Weinberger said to 

you. He asked you 'Are you ready to 

fight?' didn't he? A. Yes sir, he did." 

Defense counsel clarified that the statement was made by 

Adam, potentially a nontestifying codefendant, and allowed 

the question to be asked and answered without objection. 

Then objection was raised. It was directed only to lack of 

notice, however. 

After lengthy discussion and consultation of legal 

textbooks in chambers, the District Court gave the following 

instruction, which was formulated by defense counsel: 

"THE COURT: All right, I am going to 

instruct the Jury that the latest statement that was testified to concerning-- 

made by Adam Weinberger to this witness 

should be disregarded by the Jury. You 

may proceed." 

This fourth statement ("Are you ready to fight?") does 

no more than serve to link Arrow with the other evidence, if 

that. It certainly does not shift blame from Adam to Arrow. 

Nor is it powerfully incriminating. It is damaging primarily 

to Adam himself. We hold that defendant has failed to demonstrate prejudice in the admission of these four statements. 

In Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct. 210, 

27 L.Ed.2d 213, the United States Supreme Court addressed at 

length the conflict between the right of confrontation and 

evidence admitted under a hearsay exception. The safeguards 

the Court recognized as present in the statement admitted in 

Evans are similar to those we see here. 
The defendant in Dutton v. Evans, supra, was charged 

with two other men, Wade Truett and Venson Williams, for the 

execution-style murder of three police officers. Evans was 

tried separately. Truett testified at Evans' trial. 

Williams did not. One of the twenty prosecution witnesses 

was an inmate from a federal penitentiary in Atlanta, 

Georgia. The inmate testified that he and Williams had been 

fellow prisoners at the penitentiary when Williams was taken 

to Gwinnett County for arraignment in the murder charges. 

Upon Williams1 return, the inmate asked: "How did you make 

out in court?" Williams responded, "If it hadn't been for 

that dirty son-of-a-bitch Alex Evans, we wouldn't be in this 

now." 400 U.S. at 77, 91 S.Ct. at 214, 27 L.Ed.2d at 220. 

Defense counsel objected to this statement on the basis that 

it was hearsay and thus violated Evans' right of confrontation. 

The United States Supreme Court upheld the introduction of the statement on a number of grounds. The Court 

first distinguished a line of cases in which state court 

convictions were reversed because of a denial of the right 

of confrontation. The Court then particularly examined 

Bruton and enunciated the differences between it and the 

Evans case. In Bruton an entire confession of the nontestifying codefendant was admitted without opportunity to effectively cross-examine for the truth of the matters contained 

within the confession. The Court in Evans emphasized that 

there was no "recognized exception to the hearsay rule" 

before it in Bruton. 400 U.S. at 86, 91 S.Ct. at 218, 27 

L.Ed.2d at 225, and then refused to equate the Sixth Arnendment Confrontation Clause and the evidentiary hearsay rule, 
although it acknowledged that both stem from the same roots. 

In distinguishing Evans from other confrontation 

clause cases, the Court noted that the inmate's testimony 

was not ''crucial" or "devastating1'; it did not involve the 

use or misuse of a confession made in the coercive atmosphere of official interrogation; it did not involve a suggestion of prosecutorial misconduct or negligence; it did 

not involve admission of a paper transcript of proceedings 

in which cross-examination was nonexistent or inadequate; 

and, finally, it did not involve wholesale denial of crossexamination. Evans, 400 U.S. at 87, 91 S.Ct. at 219, 27 

Evans also did not involve a joint trial, as had 

Bruton. However, the nature of the statement and the safeguards recognized as present in Evans apply to Adam Weinberger's statements. The Court noted that: 

"Evans was not deprived of any right of 

confrontation on the issue of whether 

Williams actually made the statement 

related by Shaw. Neither a hearsay nor a 

confrontation question would arise had 

Shawls testimony been used to prove merely that the statement had been made. The 

hearsay rule does not prevent a witness 

from testifying as to what he has heard; 

it is rather a restriction on the proof 

of fact through extrajudicial statements. 

From the viewpoint of the Confrontation 

Clause, a witness, under oath, subject to 

cross-examination, and whose demeanor can 

be observed by the trier of fact, is a 

reliable informant not only as to what he 

has seen but also as to what he has ................................... 

heard." (Emphasis added.) Evans, 400 

U.S. at 88, 91 S.Ct. at 219, 27 L.Ed.2d 

at 226. 

Similarly, Arrow Weinberger was not denied any right 

of confrontation on the issue of whether or not the statements were made by Adam and overheard by each of the four 

witnesses. While none of the statements were challenged on 
the basis of Bruton or as hearsay, the "state-of-mind" exception to the hearsay rule or Montana's transaction rule 

would have provided the "recognized exception to the hearsay 

rule" that was not present in Bruton. Bruton, n. 3, 391 U.S. 

at 128, 88 S.Ct. at 1623-1624; Rule 803(3), M0nt.R.Evid.i 

State v. Clark (1936), 102 Mont. 432, 58 P.2d 276; In Re 

Petition of Peterson (1970), 155 Mont. 239, 467 P.2d 281. 

In Evans, the United States Supreme Court stated that 

the confrontation issue arose "because the jury was being 

invited to infer that Williams had implicitly identified 

Evans as the perpetrator of the murder when he blamed Evans 

for his predicament." Evans, 400 U.S. at 88, 91 S.Ct. at 

219, 27 L.Ed.2d at 227. In concluding that there was no 

denial of the right of confrontation, the Court considered 

several factors. It noted that the statement did not 

contain an express assertion about past fact; that Williams' 

personal knowledge of the identities and roles of the other 

murder participants had been abundantly established by other 

evidence ; and, that the possibility Williams' statement was 

founded on faulty recollection was remote in the extreme. 

Finally, the circumstances provided widely recognized indicia of reliability where, as here, the statement was spontaneous and where it was against Williams' penal interest to 

make it. 

Those same factors apply here. None of the statements 

contained an express assertion about past fact. Adam's 

knowledge of Arrow's role in the shooting was solidly established through other evidence. The chance that Adam's statements were founded upon faulty recollection is remote in the 

extreme. The statements were spontaneous and were made 
against Adam's penal interest. 

The Court ended by stating: 

"The decisions of this Court make it 

clear that the mission of the Confrontation Clause is to advance a practical 

concern for the accuracy of the truthdetermining process in criminal trials by 

assuring that 'the trier of fact [has] a 

satisfactory basis for evaluating the 

truth of the prior statement.' California 

v. Green, 399 U.S. at 161 . . . 

"Almost 40 years ago, in Snyder v. Massachusetts, 291 U.S. 97, Mr. Justice 

Cardozo wrote an opinion for this Court 

refusing to set aside a state criminal 

conviction because of the claimed denial 

of the right of confrontation. The closing words of that opinion are worth repeating here: 

"'There is danger that the criminal law 

will be brought into contempt--that discredit will even touch the great immunities assured by the Fourteenth Amendment 

--if gossamer possibilities of prejudice 

to a defendant are to nullify a sentence 

pronounced by a court of competent jurisdiction in obedience to local law, and 

set the guilty free.' [Citation omitted.]" 400 U.S. at 89-90, 91 S.Ct. at 

220, 27 L.Ed.2d at 227. 

We agree. Arrow Weinberger has failed to demonstrate prejudice in the admission of these statements. We hold that his 

right to confrontation was not violated. 

Defendant also argues that this Court should recognize 

as plain error any alleged Bruton violation and should 

therefore consider these alleged violations even where not 

preserved by contemporaneous objection. We decline to do so. 

The District Court was never given an opportunity to 

rule on admission of the statements or to correct itself if 

admission was not proper. We will not put the trial court 

in error where it has not been given such a chance. State 

v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304. 

Here, defense counsel was familiar with the Bruton 
objection and used it successfully to prevent admission of 

another statement. No such objection was raised to these 

four statements. Defendant's contention to the contrary 

notwithstanding, we also note that both defense counsel were 

present at trial when three of the four statements were 

admitted. We reject his representation that less experienced 

trial counsel failed to make objections which would have 

been made had both counsel been present. We also refuse to 

adopt a plain error rule that would allow defendants to lay 

in the grass and create Bruton violations by failing to 

object and then withholding one codefendant from the witness 

stand. 

Defendant 's fourth argument is that the prosecution's 

trial tactics deprived him of a fair trial. He argues that 

the State should not have introduced evidence of the 

victim's good character in its case-in-chief; that evidence 

of defendants' character and their plan to take Luanne to 

Arkansas should not have been admitted; that evidence of the 

reasonableness of the victim's and his family's actions 

should not have been admitted; that the State "carefully 

tailored" its case to avoid calling witnesses who would 

testify that the victim was the first aggressor; and that 

the State improperly elicited testimony during its case on 

the condition of a defense witness at the time of the 

shooting and improperly sympathized or agreed with statements made by witnesses. We reject these arguments out of 

hand. No objections were raised at trial on any of the 

points defendant now challenges. Nor, taken in toto, do 

these incidents evidence misconduct that prejudiced defendant. Most of the evidence defendant challenges was properly 
admitted to provide the jury with all of the facts and circumstances necessary to shed light upon this case. 

Character evidence of a victim's peaceful nature may 

be admitted by the prosecution to rebut evidence that the 

victim was the first aggressor. Rule 404(a)(2), Mont.R.Evid. 

Here, the prosecution introduced the evidence through the 

first witness in its case-in-chief before the defendant had 

introduced evidence that the victim was the first aggressor. 

Where the defense raises the issue of self-defense through 

cross-examination that tends to demonstrate that the victim 

was the first aggressor, nothing precludes the State from 

rebutting that argument in its case-in-chief with evidence 

of the victim's peaceful nature. However, the State should 

not introduce evidence of the victim's peaceful nature in 

anticipation of such an argument. Here, no objection was 

raised at trial and the defendant's claim of self-defense 

was clearly at issue throughout the trial. Defendant has 

again failed to demonstrate prejudice. 

In his last two arguments, defendant challenges imposition of trial costs and expenses as part of his sentence 

as unconstitutional and requests that his sentence be vacated since it was based upon erroneous information concerning 

prior convictions. He argues, first, that section 46-18-232, 

MCA, is patently unconstitutional since it enhances punishment in retribution for a defendant's exercise of a fundamental constitutional right. We reject this contention. 

Section 46-18-232, MCA, prohibits recoupment against 

an indigent defendant and allows a defendant to be relieved 

from payment of such costs upon petition to the sentencing 

court "[ilf it appears to the satisfaction of the court that 
payment of the amount due will impose manifest hardship on 

the defendant or his immediate family . . ." Statutes that 

allow such a discretionary imposition of costs have been 

upheld against the due process argument marshalled by defendant. Fuller v. Oregon (1974), 417 U.S. 40, 51-54, 94 S.Ct. 

2116, 2123-2125, 40 L.Ed.2d 647, 653-655; United States v. 

Glover (2nd Cir. 1978), 588 F.2d 876, 878-879; People v. 

Estate of Scott (1977), 66 111.2d 522, 363 N.E.2d 823, 825; 

cf., Olson v. James (10th Cir. 1979), 603 F.2d 150 (invalidating a Kansas statute imposing obligation to repay costs 

of appointed counsel regardless of defendant's ability to 

pay). Montana's statute does no more than deprive "a financially able defendant of available funds which, in fairness, 

should be remitted to the public coffers." Glover, 588 F.2d 

at 879, quoting United States v. Bracewell (2nd Cir. 1978), 

569 F.2d 1194, 1197. 

Nor do we accept defendant's argument that his 

sentence should be vacated based upon inaccurate information 

in his sentencing report. A defendant's right to be 

sentenced on the basis of accurate information is protected 

where he is represented by counsel at sentencing and is 

given the opportunity to rebut any inaccuracies. State v. 

Trangsrud (1982), Mont. , 651 P.2d 37, 40, 39 

St.Rep. 1765, 1768. He then has an affirmative duty to 

present evidence to show such inaccuracies. State v. Radi 

(19791, Mont . , 604 P.2d 318, 320, 36 St.Rep. 2345, 

2347. Here, defendant was represented by counsel and was 

presented with an opportunity to rebut the report. He did 

not do so. Rather, defense counsel reviewed the report and 

deemed it "appropriate." Defendant should address any chal- 
lenge to the equity of the sentence to the Sentence Review 

Division. This Court will consider only legal issues raised 

by the sentence. 

In conclusion we also address the dissenters' concern 

with a potential conflict of interest stemming from both 

defendants being represented by one law firm. We reject 

their argument. We note, first, that both defendants agreed 

to joint representation and, in fact, hired the same law 

firm as private counsel. Both defendants waived a separate 

trial. Both defendants reconsidered their decision to be 

jointly represented during the course of the trial and reaffirmed that decision. 

Neither the defendant nor the dissenters demonstrate 

an actual conflict of interest. A defendant has the burden 

of establishing that such representation in fact created an 

actual conflict of interest that prejudiced the defendant. 

The law does not require an affirmative inquiry into whether 

codefendants agree to joint representation. State v. Henry 

(1978), 177 Mont. 426, 431, 582 P.2d 321, 323-324. A defendant may waive the right to demand retrial on the issue of 

conflict of interest of counsel. State v. Gallagher (1973), 

162 Mont. 155, 161, 509 P.2d 852, 855. Where, as here, the 

defenses put forth by the two defendants are not in conflict, a defendant is not deprived of effective assistance 

of counsel by joint representation. State v. Henry, supra, 

177 Mont. at 431, 582 P.2d at 324. We reject the dissenters' 

objections as mere speculation. 

Affirmed. 

Chief Justice 
We concur: 

Mr. Justice Daniel J. Shea dissenting: 

My dissent is a long one, and I do not apologize for 

the delay. It will be filed when it is ready. 
Mr. Justice John C. Sheehy concurring with the dissent of 

Justice Daniel J. Shea, and stating further in dissent: 

I would reverse the conviction of Arrow Weinberger. The 

instructions in relation to him were in hopeless conflict. 

Under section 45-5-101, MCA, a person commits the 

offense of criminal homicide if he purposely, knowingly, or 

negligently "causes the death of another human being." A 

person commits deliberate homicide under section 45-5-102, 

MCA, if the criminal homicide is committed "purposely" or 

"knowingly". 

The District Court, in instructing the jury with respect 

to deliberate homicide, followed the statutes when it 

instructed the jury in instruction no. 10: 

"A person commits the offense of deliberate 

homicide if: 

"(1) He purposely or knowingly causes the death of 

another human being . . ." (Emphasis added.) 

Under the statutory definition, and the portion of 

instruction no. 10 which we have quoted, the inquiry for the 

jury was, who caused the death of Azure? Obviously if Azure 

caused his own death, as in the case of Arrow Weinberger 

acting in self defense, then the crime has not been 

committed. It is the statutory scheme that the jury search 

for the cause of the death in homicide cases. 

In this case the District Court elaborated on the 

statutory definition. In instruction no. 11, it instructed 

the jury: 

"You are instructed that to sustain the charge of 

deliberate homicide against Arrow Weinberger, the 

State must prove that the defendant Arrow 

Weinberger purposely or knowingly performed the - act 

or acts causing the death of Floyd Azure . . ." 

(Emphasis added.) 
Thus the District Court, by giving instruction no. 11 changed 

the nature of the inquiry for the jury. Instead of searching 

for the cause of Azure's dea-th, the jury was instructed to 

find who performed the acts causing the death of Azure. 

Instruction no. 11 created a crime not defined in the 

Montana statutes, and for Arrow Weinberger, wiped out any 

self defense. Under instruction no. 11, since Arrow 

Weinherger performed the acts (even though he may have been 

acting in self defense) which caused Azure's death, he was 

guilty of homicide. 

Under instruction no. 11, the mere performance of the 

acts causing Azure's death constitutes a forcible felony. 

Instruction no. 47 then wiped away completely any self 

defense available to Arrow Weinberger: 

"You are instructed that the defense of self 

defense or justifiable use of force is not 

available to a person who is attempting to commit 

or committing a forcible felony. A forcible felony 

is any felony which involves the use or threat of 

physical force or violence against any individual." 

The State admits in its brief that court's instruction 

no. 11 "failed to define completely the crime charged," but 

the State contends that the failure of definition of court's 

instruction no. 10 was cured by other instructions given in 

the case. 

Our annals are full of cases in which we have said that 

if an instruction is "not as full as it might have been," but 

the instructions taken as a whole fairly present the case to 

a jury, we will not reverse the conviction because of an 

incomplete instruction. However, this rule applies only to 

incomplete instructions, not to erroneous instructions or 

those which are at cross purposes with each other. The cases 

relied upon by the State and by the majority in this case do 
not meet the situation here where the court erroneously 

defined the elements of the crime in instruction no. 11. If 

there is any single item of instruction that needs to be 

straight-forwardedly presented in the criminal case, it must 

be the elements of the crime. We said in State v. Lundblade 

(19811, Mont . , 625 P.2d 545, 548,38 St.Rep. 441: 

"At a minimum, the District Court must explain or 

define the crime -- for the jury, (Citing a case.) 

In determining whether the instructions did this, 

we are guided by certain settled principles. 

First, we must view the instructions as a whole 

(citing a case) and we will find no error if the 

instructions as a whole fully and fairly instruct 

on the law applicable to the case (citing cases) . " 

Here there is a hopeless conflict in the instructions 

concerning deliberate homicide in Arrow Weinberger's case. 

The instructions as a whole do not fully and fairly instruct 

on the applicable law but confuse the elements of deliberate 

homicide and strip any meaning from the self defense 

instructions. 

I could cite other instructional conflict, but it would 

serve no purpose here and would only take up space. It is 

enough to say that court's instructions no. 24, 31, and 32 do 

not cure the instructional failure, as the majority contends 

or the State argues, because in each of those instructions, 

there is a phrase used "described by a statute defining an 

offense" to inform the jury how to apply purposely or 

knowingly as a requisite for mental state. Nowhere in the 

instructions in this case did the court specifically tell the 

jury a particular statute that defined the offense. In other 

words, under instructions 24, 31 and 32, the jury was told to 

look to a statute for the elements, but the statute was not 

given to them. 
For these and those reasons set forth by Justice Shea, I 

dissent. 

Q. & 

Justice 

I concur in the foregoing dissent of Mr. Justice Sheehy.