No. 82-180 (A) INTHE 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 Decidedr June 6, 1983

Filed: 

## 6 

## 1983

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of theCourt. 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 felonymurder for hispart inthe 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. Hismotion for a judgment notwithstanding theverdictor for

a new trialwas denied. Heappeals. Weaffirm. 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 inJune 1981, he attempted toestablish a relationshipwith 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 likea gentleman." Despite Azures' opposition, Adam and Luanne continued toseeeach other. On November 10, 1981, Luanne ran away from home with three friends and went to Havre, Montana. Adam did not accompany Luanne toHavre, but shecalledhim from thereand made arrangements to 

### meet him in Williston, North Dakota. Azures searched thePoplar area for Luanne without success. On November 12, they traveled toWilliston 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 learnedthatshehad infactbeen withAdam. Azures began towatch Luanne closely tokeep 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 parents1wishes 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 theWilliston incident. They immediately enlisted the help of local law enforcement officers and began to search for Luanne and forWeinbergers. Atthe Azuresl request, police stopped Arrow Weinbergerls Cadillac to look for Luanne. Both Adam and Arrow later went toAzuresl home to register their displeasure at being stopped. Arrow was angry and told Azures thathe did not like togetupset "because when I getupset, I stayupset

# ..."
Azures continued tosearchthePoplar area forLuanne. 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. Sheplanned togo toFort Smith, Arkansas, with him. Scottyand Gloreen Azure then began tosearchforAdam Weinberger's car. They laterenlisted thehelpof 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 toBrockton, but he apparentlywas unable tolocate 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 carswere 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 atthe Standard gas station. Scotty parked at the side of the station. Rodney parked several

car lengths behind a red pickup thatwas alsoparked atthe side of the station. The two Azure women went into the station toask the attendant tocall the police dispatcher. Scottyand Rodney remained outside. At the time of the roadside stop, each Weinberger vehicle had two occupants. Arrow Weinberger was accompanied by hisbrother, 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' theAzures and talk tothem. The Weinberger vehicles continued into Culbertson andalso stopped atthe Standard station. Arrow parked his car almost directlybehind ScottyAzure's with about six feetof space between the vehicles. Adam parked his car angling into the passenger's sideof Scotty's car with several feet of clearance between thevehicles. The red pickup truck was parked parallel to the driver's side of Scotty's car at a distanceof nine and one-half feetaway. ScottyAzure stood between his car and the red pickup

near the open driver's door of hiscar asWeinbergerspulled 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 todrag a logging chain outof thepickupwhich he doubled over and startedto swing atScotty. 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 ScottyAzure once in the chest, killing him instantly. Arrow claimed thathe acted in selfdefense after Scottyhad hithim 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 guiltyof deliberatehomicide. Arrow Weinberger presents this Court with six issues

on appeal: 1. Whether the instructions taken as a whole correctlydefined theoffenseof deliberatehomicide; 2. Whether certainhearsay testimony should have been submitted tothejury;3. Whether "other crimes" evidence was erroneously introduced againstdefendant; 4. Whether the prosecution's trial tactics deprived defendant of a fairtrial; 5. Whether section 46-18-232, MCA, which allows imposition of trial costs against a convicted defendant, is unconstitutional; and 6. Whether defendantwas properly sentenced. Defendant first argues that a jury instructiondefining deliberatehomicide omitted an essential element of the crime. InstructionNo. 11provided: "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 knowinglyperformed the actor actscausinq thedeathof 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 thejury toconvicthim 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. Wedisagree 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 thejury toconvictArrow if it found thathe had only intended topull the trigger. This Court has recognized that in the case of deliberate homicide, the requisite mental stateattachestothe result:"InMontana, a person commits the offense of deliberatehomicide if he purposely or knowingly causes the death of another human being

# ... The statutorilydefined elements of the offense, each of which the Statemust prove beyond a reasonable doubt, aretherefore causing thedeath of another human being with theknowledge thatyou arecausing orwith thepurpose tocause thedeathof thathuman 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, 61L.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. Atthe outsetof trial, thejury was informed that the specific charge againstArrow 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 automaticpistol 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 thejury defined self-defense, the circumstances inwhich it may be used, and the permissible amount of force which may be used. Where "all the instructions, reviewed as a whole,fairlyand accurately present the case tothejury," wewill not overturn a conviction. State v. Riley (1982), Mont

# . , 649 P.2d 1273, 1281, 39 St.Rep. 1491, 1501; Statev. 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 theymust consider the instructions as a whole (#I); that each material allegation and fact charged under the specificcharge againstArrow 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 deliberatehomicide 

## (#lo); thatboth 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 elementof the offense (#24);thatdeath occurring from accident ormisfortune is not sufficienttoconvict of deliberate homicide (#15);that the facta death occurred is not sufficientproof, standing alone, thata crime

### was committed (#16). We reject the tortured interpretation the dissenters give toInstructionNo. 11. They argue that InstructionNo. 11 

### is in conflict with the other instructions. Viewed in context of the facts of this case, the arguments presented attrial, 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 tothejury and were sufficient.The second basis on which we reject a challenge to InstructionNo. 11 is thatdefendant did not properly object to it; nor didhe take the opportunity presented attrial to

cure any deficiency in the instruction. As instructionswere 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 Stateis required toprove, number 1: the State 

### is implying that it was done knowingly or purposely; number 2, that it was done with intent to kill, which requiresunder deliberate homicide a specificpurpose tokill under the statute; number 3, that it has to be committed within the county; number 4, thedeath must be a resultof deliberation. "THE COURT: Do you have instruction like that inyours? "MR. CHARLES MOSES: No I don't have that. "THE COURT: Wellifyou willprepare one chat has allof those thinqs, 

### we will 

### - ---------- take a look atit. "MR. MOSES: Okay, Your Honor. "THE COURT: Otherwise, I believe I will give thisone.

"THE COURT: I will give it unless--I don't think we have to allegethat itwas in Roosevelt County, that is a legal question. Culbertson is in Roosevelt County, Montana, and the actwas 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 ityou're saying and it is 

### -------------

### -- your position thatyou have toprove



### ......................... seecific intent in the statutory lan- 

### - ------------- guage, purposely, knowingly 

### - ---------- under theUnited StatesSupreme Court rulinus? "MR. CHARLES MOSES: Right.

### " (Emphasis added.) While defendant objected on the ground that the instruction was incomplete, it is apparent from thediscussion that then followed that the crux of the objection 

### was that it did not require that the State prove a specific intent to killbut that it allowed the Statetoimply 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 alsoargued thatthejury be instructed thatthe crime had tohave been committed within thecounty. The District Court tookjudicial noticeof 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 thatdeathwas the resultof deliberationother than the deliberation implicitwithin 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 tosection 45-5- 102, MCA. Where a person is aware that it is highly probable thata certain resultwillbe caused by hisconduct, 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 toengage incertainconduct or tocause a particular resulthe actspurposely with respect tothatconduct or its result. Section45-2-101(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), 177Mont. 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 itwas incomplete is founded upon mens rea requirements that are no longer the law inMontana. 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." Thisproposed instructionwas properly refused both times. We conclude that defendant's contention that InstructionNo. 11was incomplete is without merit. Defendant next challenges the introduction of certain hearsay statements into evidence. He raises three separatearguments in attacking admission of the hearsay statements. First, he contends that two preshooting statementswere 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, hisnontestifying codefendant, 

### were Bruton infractions that violated the confrontation clause of the Sixth Amendment to the United States Constitution. Bruton v. United States (1968), 391U.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 onAdam's involvement inLuanne's triptoWillistonwas 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 costhim, and he was bringing a lawyer and he was going to prove that his son was an angel

# .

# .."
Luanne was questioned onWeinbergers' 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 toArrow; and thatArrow said it "sounded good" tohim.Both statements 

### were objected to as hearsay, or as double hearsay, pursuant toRule 805, Mont.R.Evid. The District Court properly allowed the first statement into evidence with an instruction that it was not offered toprove the truth of the matter asserted but was offered only to show why Gloreen acted and believed as she did. The statement

### was relevant tothe issueof defendant's state of mind and motive. In a case where self-defense is raised, the stateof mind and intentof thedefendant is the primary issue. The jury 

### is entitled to know, so far 

### as evidence is available, allthe factsand circumstanceswhich tend tothrow lightupon theparties 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 toview Scotty Azure's death in the context of these prior events. Statev. Riley, supra, 649 P.2d at1280, 39 St.Rep. at1499. Most of Luanne's statement was nonobjectionable and



### was properly admitted. Only thesecond partof 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 notmeet 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

# . , 622P.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 againstAdam 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), Mont

# . , 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 themotion was moot as a result of the notice filed. We agree. Section 46-15-303, MCA, 

### provides: "Motion to produce confession or admission. (1)Onmotion 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 itsmaking. 

### If the defendant has made an oral confession or admission,a list of the witnesses to its making shallbe furnished. "(2) The list of witnesses may, upon notice and motion, be amended by the stateprior totrial. "(3) No such confession or admission shallbe received in evidencewhich has not been furnished incompliancewith 

### ------------ subsection (1)unless thecourt 

### is satisfied that theprosecutor was unaware of the existenceof 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 thereforehad no discretion toallow the statements intoevidence. 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 toprovide this statement to defendant since he firstbecame aware of it after the "Notice of Confessions and/or Admissions" was filed. The District Court properlyprovided defense counsel the opportunity to interview all possible witnesses to the making of the statement before it was allowed intoevidence. The second statement was made by Adam to the hitchhiker, Hanzlick. AsAdam stopped atthe 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 todisregard 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 inthe trial. Defendant has failed todemonstrate prejudice arising from the failure to provide notice of these statements as distinguished from the introduction of the statements themselves. The purpose of the statuterequiringproduction of confessions and admissions is to allow the defendant to prepare a defense to the statements. Here, defendant was given theopportunitytointerviewanypossiblewitnesses to the making of the firststatement 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 toproduce the statements prior totrial. 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 thistrouble." Rodney Azure testified that after theshooting Adam said tohim, "What did you expect, they were tailgating us." The third statement was introduced through the testimony of Arthur Sarnow, who transported theWeinbergers 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 togo." 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 statementsviolate the rule announced inBruton. In Bruton the United States Supreme Court held that "where thepowerfully 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 tothejury todisregard the statements inculpating the defendant are inadequate. Bruton, supra, 391 U.S. at 135-136, 88 S.Ct. at 1628, 20 L.Ed.2d 

### at485. The factsinBruton areclearlydistinguishable from the casebefore us. In Bruton the nontestifying codefendant, Evans, confessed orally that he and Bruton committed a robbery. The confession

### was admitted, and thejury 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" toBruton 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, ashere, does not testifyand 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 at485. Extrajudicial statements of a nontestifying codefendantdonot always require reversal. Statev. Powers (1982), Mont

# . , 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, 31L.,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, 101S.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 inconjunction 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 toconfront hisaccusors as guaranteeu by the Sixth Amendment of the United States Constitution. Wedisagree. 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 afforded 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 directlyconnected him with Azure's murder. None of the four statements was challenged

on the basis of a denial of confrontation. Wewillexamine each statementand its admission intoevidence inturn.The first statement defendant challenges was introduced through Gloreen Azure on redirect examination. The prosecutor asked Gloreen: "Q. Do you recall talking toAdam Weinberger, the defendant, at that time, stating tohim that 'you had killedhim'? A. He said I hope you are satisfied, you caused allof thistrouble." No objection was raised attrial to the admission of this statement. On appeal, defendant fails to demonstrate that 

### its admission constitutes prejudicial error. Atmost, this statement can be viewed as linkage testimony that 

### is incriminating only inconjunction with other facts. Itdoes not demonstrate a codefendant's "recognized motivation to shiftblame onto others." Bruton v. United States, 391U.S. at 136, 88 S.Ct. at 1628, 20 L.Ed.2d at485. 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 againstArrow. 

### We findno 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 firstobjected toits introduction on thebasis thatno noticewas provided to the defendants of the statement. The District Court remedied that omission by allowing defense counsel to subpoena and interview any possible witnesses tothemaking 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 asfollows: "Q. And didyou 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 towhom were they directed? A. I don't know who they were directed to, it 

### seems likehe 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 atmost

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 shiftblame from Adam toArrow. We find no Bruton violation. The third statement, the most incriminating of the four, 

### is still incriminating only in lightof other clearly admissible evidencepresented attrialand 

### is therefore

### mere linkage testimony. It was introduced through the testimony of Arthur Sarnow, a G.V.W. officer for the Montana Highway Department. Sarnowwas asked by a sheriff's deputy toassist in moving the three Weinbergers and Tom Hanzlick from the

scene of the shooting. The only objection raised by defendant astoSarnow's testimonywas the following objectionon thebasisof foundation: "Q. Okay, and while you were in the patrol car, didyou hear one of these two defendants sayanything totheother one? A. Yes sir I did. "Q. And who did you hear say something? A. The young boy in thepink there. "Q. And who didhe say it to? A. To the back seatwhere the other threepeoplewere sitting."Q. And that 

### is where theother defendant was seated? A. Yes, in themiddle in the back, yes. "Q. And do you recallwhat he said? "MR. S. MOSES: Your Honor, I am going to ask for a further foundation as to who 

### was sitting inthe 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 sittingwhere? A. On thepassenger side, against thewindow. "Q. And where was the defendant Adam Weinberger, the young son sitting? A. The young one was between Duane and I in the frontseat. "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 togo'." Again, this testimony incriminates Arrow only when linked with other facts introduced attrial. 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 laststatementdefendant challenges was introduced through the following recross-examination of thehitchhiker, 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 inthe car and parked atthe Culbertson station? A. Yes, do I recall it,yes sir. "Q. What didhe saytoyou?"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: Itdoesn't refer toanybody else, it is what Adam Weinberger said to you. He asked you 'Are you ready to fight?' didn't he? A. Yes

### sir, hedid." 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. Itwas directed only tolack of notice, however. After lengthy discussion and consultation of legal textbooks in chambers, theDistrict 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 ("Areyou ready tofight?") does

no more than servetolinkArrow with theother evidence, if that. Itcertainlydoesnot shiftblame fromAdam toArrow. Nor is itpowerfully incriminating. Itisdamagingprimarily toAdam himself. Wehold thatdefendanthas failedtodemonstrateprejudice inthe admission of these four statements. In Dutton v. Evans (1970), 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, theUnited StatesSupreme Court addressed at length the conflict between the right of confrontation and evidence admitted under a hearsay exception. The safeguards theCourt recognized aspresent inthe statement admitted in Evans are similar tothose 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 thathe and Williamshad been fellowprisoners atthepenitentiarywhen 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, wewouldn't be inthis now." 400 U.S. at77, 91 S.Ct. at 214, 27 L.Ed.2d at 220. Defense counsel objected to this statementon thebasis 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. InBruton an entireconfessionof thenontestifying codefendant

### was admitted without opportunity toeffectively cross-examine for the truth of the matters contained within the confession. The Court inEvans emphasized that there 

### was no "recognized exception to the hearsay rule" before it in Bruton. 400 U.S. at 86, 91 S.Ct. at218, 27 L.Ed.2d at 225, and then refused toequate the Sixth Arnendment Confrontation Clause and the evidentiaryhearsay rule,although it acknowledged thatboth 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 relatedby Shaw. Neither a hearsaynor a confrontation questionwould arisehad Shawls testimony been used toprovemerelythatthe statementhad been made. The hearsay rule does notprevent a witness from testifying astowhat he has heard; it is rather a restrictionon theproof of factthrough extrajudicialstatements. From the viewpoint of theConfrontation Clause, a witness, under oath, subjectto cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only astowhat he has seen but also as towhat he has



## ................................... heard." (Emphasis added.) Evans, 400 U.S. at 88, 91 S.Ct. at 219, 27 L.Ed.2d at226. 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 statementswere challenged onthe 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 tothehearsay rule" that

### was not present inBruton. Bruton, n. 3, 391U.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 Petitionof Peterson (1970), 155Mont. 239, 467 P.2d 281. In Evans, the United StatesSupreme Court stated that the confrontation issue arose "because the jury 

### was being invited to infer that Williams had implicitly identified Evans 

### as theperpetrator of themurder 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 aboutpast fact; thatWilliams' personal knowledge of the identities and roles of the other murder participants had been abundantly establishedby other evidence;and, that the possibility Williams' statement 

### was founded on faulty recollection was remote in the extreme. Finally, the circumstances provided widely recognized indiciaof reliabilitywhere, as here, the statement

### was spontaneous and where itwas againstWilliams' penal interestto make it. Those same factorsapply here. None of the statements contained an express assertion about past fact. Adam's knowledge of Arrow's role inthe shootingwas solidlyestablished through other evidence. The chance thatAdam's statements

### were founded upon faultyrecollection is remote inthe extreme. The statements were spontaneous and 

### were madeagainstAdam'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 incriminal trialsby assuring that 'the trier of fact [has] a satisfactory basis for evaluating the truthof theprior statement.' California v. Green, 399 U.S. at161

# . .. "Almost 40 years ago, inSnyder 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 rightof 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 toa defendant are to nullify a sentence pronounced by a courtof competentjurisdiction 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 

### at227. We agree. ArrowWeinberger has failedtodemonstrateprejudice inthe admission of these statements. Wehold thathis right toconfrontation

### was not violated. Defendant alsoargues thatthisCourt should recognize

as plain error any alleged Bruton violation and should therefore consider these alleged violations even where not preserved by contemporaneous objection. Wedecline todo so. The District Court 

### was never given an opportunity to rule on admission of the statements or tocorrect itself if admission was not proper. We willnot put the trial court in error where it has not been given such a chance. State

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

### was familiar with the Brutonobjection 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 alsonote thatboth defense counsel were present at trial when three of the four statements were admitted. We rejecthisrepresentation 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 thatwould allowdefendants tolay in the grass and create Bruton violations by failing to object and then withholding one codefendant from thewitness stand.Defendant's fourth argument 

### is that the prosecution's trial tacticsdeprived 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; thatevidence 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 intoto, do these incidents evidence misconduct that prejudiced defendant. Most of the evidence defendant challengeswas properlyadmitted toprovide thejury with allof the factsand 

### circumstances necessary toshed lightupon thiscase. Character evidence of a victim's peaceful nature may be admitted by the prosecution to rebut evidence that the victimwas the firstaggressor. Rule 404(a)(2),Mont.R.Evid. Here, the prosecution introduced the evidence through the firstwitness in its case-in-chief before the defendant had introduced evidence that thevictimwas the firstaggressor. 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 failedtodemonstrateprejudice. In his last two arguments, defendant challenges 

### imposition of trialcostsand expenses aspart of his sentence

asunconstitutional and requests thathissentencebe vacated since it was based upon erroneous information concerning prior convictions. He argues, first, that section46-18-232, MCA, is patently unconstitutional since it enhances punishment in retribution for a defendant's exercise of a fundamental constitutionalright. We reject thiscontention. Section 46-18-232, MCA, prohibits recoupment against

an indigent defendant and allows a defendant tobe relieved from payment of such costs upon petition to the sentencing court "[ilf it appears tothesatisfactionof thecourt 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 (10thCir. 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 (2ndCir. 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

# . ,604P.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 tothe equity of the sentence to the Sentence Review Division. This Courtwillconsider onlylegal issuesraised 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, thatboth 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 thecourse of the trial and reaffirmed thatdecision. Neither the defendant nor the dissenters demonstrate

an actual conflictof interest. A defendant has theburden 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 intowhether codefendants agree tojoint representation. Statev. Henry (1978), 177Mont. 426, 431, 582 P.2d 321, 323-324. A defendant may waive the right todemand retrial on the issue of conflictof interestof counsel. State

### v. Gallagher (1973), 162Mont. 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. Statev. Henry, supra, 177Mont. at431, 582 P.2d at324. We rejectthedissenters' objectionsasmere speculation. Affirmed.

Chief JusticeWe concur:

Mr. Justice Daniel J. Sheadissenting: My dissent is a long one, and I do not apologize for thedelay. Itwill be filedwhen it is ready.

### Mr. Justice John C. Sheehy concurring with the dissent of Justice DanielJ. Shea,and stating further in dissent:

Iwould reverse the convictionofArrowWeinberger. 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". TheDistrictCourt, in instructing the jurywith respect to deliberate homicide, followed the statutes when it instructed the jury in instructionno. 10: "A person commits the offense of deliberate homicide if: "(1) Hepurposely or knowingly causes the death of anotherhuman being 

# .

# .." (Emphasisadded.) Under the statutory definition, and the portion of instruction no. 10which 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 Weinbergerpurposely or knowinglyperformed the 

## - act or acts causing the death of Floyd Azure 

# . . ."

(Emphasisadded.)

### Thus the District Court,by giving instructionno. 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 findwho performed the acts causing the death ofAzure. 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 (eventhough 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 toArrowWeinberger: "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 inwhich we have said that if an instruction is "notas fullas itmight 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 crosspurposes with each other. The cases relied upon by the State and by themajority in this case do

### not meet the situation here where the court erroneously defined the elements of the crime in instructionno. 11. If there is any single item of instruction that needs to be straight-forwardedly presented in the criminal case, itmust be the elements of the crime. We said in Statev. 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 (citingcases)

# ." 

### 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 instructionalconflict,but itwould

serve no purpose here and would only take up space. It is enough to say that court's instructionsno. 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 casedid the court specifically tell the jury a particular statute thatdefined the offense. In other words,under instructions 24, 31and 32,the jurywas told to look to a statute for the elements, but the statute was not given to them.For these and those reasons set forthby Justice Shea, I dissent. 

# Q.& Justice

I concur inthe foregoingdissentof Mr. Justice Sheehy.