No. 93-293

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsDUANE BRANDON,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:

For Appe1

Filed:

lant:

Charles F. Moses; Moses Law Firm, Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Cregg

Coughlin, Ass't Attorney General, Helena, Montana

Wm.,Nels Swandal, Park County Attorney, Jon Hesse,

De&y Park County Attorney, Livingston, Montana

Submitted on Briefs: January 7, 1994

Decided: March 22, 1994
Justice John Conway Harrison delivered the Opinion of the Court.

Appellant Duane Brandon (Brandon) appeals the Sixth Judicial

District Court, Park County, jury verdict which found him guilty of

conspiracy to commit deliberate homicide against his wife, Patsy

Brandon (Patsy). We affirm.

Five issues are before this Court:

1 . Did the District Court err by refusing Brandon's proposed

jury instructions on solicitation and entrapment?

2 . Did the District Court err by denying Brandon's motion to

dismiss and acquit on the grounds of entrapment?

3 . Did the District Court err by restricting Brandon's crossexamination of the informant?

4 . Did the District Court err by refusing to admit Brandon's

statement to police into evidence?

5 . Did the District Court err by refusing Brandon's motion

for a change of venue?

Brandon and Patsy were married for approximately thirty years.

They lived in Livingston, Montana, and had three children. Brandon

was a self-employed heavy equipment operator/contractor and Patsy

was a clerk at Gateway Office Supply. After the couple separated

in August 1991, Patsy moved to a trailer court near Livingston.

Divorce proceedings began in October 1991, and the parties

attempted to negotiate a property settlement. Although the parties

constructed a draft agreement, no final agreement was ever reached.

Roger Gorham (Gorham) was an acquaintance of Brandon's; they

2
met when Brandon was working on a road in the subdivision where

Gorham lived. Upset about his pending divorce and potential

financial difficulties associated with the future property

settlement, Brandon told Gorham that he wished his wife would

"disappear.t' Brandon hoped Patsy would have an accident or that

"somebody would take a shot at her."

Sensing Brandon's mind-set, Gorham suggested that Brandon

discuss his divorce problems with Bill Bartlett (Bartlett), a

Bozeman attorney. On October 14, 1991, Gorham drove Brandon to

Bozeman to meet with Bartlett. During the drive, Brandon stated

that he wished his wife was dead or that someone would kill her.

When Gorham introduced Brandon to Bartlett, but before Brandon and

Bartlett met privately, the trio joked about Brandon wanting to

kill his wife.

After the consultation, Brandon and Gorham returned to

Livingston and Gorham went to a motel lounge for a drink. While

there, Gorham told Park County Undersheriff Lee Keto that a mutual

friend wanted Gorham to kill his wife. The two laughed, and no

more was said at that time.

On February 3, 1992, Brandon visited Gorham and told him that

he had met with an attorney and learned that he was going to have

to pay a large divorce settlement. Brandon wanted Gorham to kill

Brandon's wife; Gorham was to receive $lO,OOO--possibly in the form

of construction work--as payment for killing Brandon's wife.

They were to meet later that evening to discuss the details.

Following the first visit, Gorham contacted Undersheriff Keto,

3
informing him that Brandon had made statements about wanting to

kill Patsy. With Gorham's consent, Park County sheriffs attached

a hidden wire, or microphone, to Gorham.

Gorham then drove to Brandon's home and picked him up. They

drove to the trailer court where Patsy lived. While there, Brandon

discussed methods of killing Patsy. The conversation was recorded

by law enforcement officers.

Brandon suggested that Gorham asphyxiate Patsy with natural

gas. He gave Gorham suggestions on how to avoid detection.

Brandon alternatively suggested that Gorham might lure Patsy to Big

Timber, kill her, and dump her body in a "green box," or trash

disposal bin. He described in detail the location of the disposal

bins. Brandon told Gorham he was leaving Montana temporarily and

wanted the job done while he was gone.

To assist Gorham, Brandon had Gorham write down Patsy's place

of employment, her work phone number and her work schedule.

Brandon wanted someone to find Patsy's body while Brandon was gone

from the state. Brandon even devised a signal by which Gorham

could convey to Brandon, through Brandon's girlfriend, whether

Patsy's body was found. When Gorham asked if Brandon might have

second thoughts about this later, Brandon made it clear that he was

serious and that he wanted his wife killed.

On the following day, Gorham again met with Brandon. This

conversation was recorded as well. At that meeting, Brandon

delivered a .22 caliber pistol to Gorham. Brandon taught Gorham

how to use the gun and suggested that Gorham purchase solid-point

4
bullets, rather than hollow points, because they "penetrate

better.** Gorham asked, "Do you think these will go through her

skull?" The following exchange occurred:

BRANDON: Oh yeah. If you could shoot her in, right in

here, the butt of the ear, right in here somewhere,

it'll--it'll put her down. And then the best thing to do

is to put the [gun] right up there close and just pull it

off about three times, four times. I'll guarantee that

son of a bitch will do the job. That [expletive] thing

right there I shot a bull moose with antlers on it about

this wide.

GORHAM : Okay, this is it then. . . . Are you sure

this'11 do the trick?

BRANDON: You [expletive] right. If that son of a bitch

will kill a bull moose, it ought to kill her.

Brandon advised Gorham that he could dispose of the gun by throwing

it into a deep hole in the Yellowstone River, and explained to him

where the hole was located.

Later that evening, Gorham again met briefly with Brandon.

This conversation was also recorded. Gorham confirmed that Brandon

wanted his wife killed. Gorham asked about his payment, reminding

Brandon that he was to receive $10,000. Brandon responded, "I'll

do it, [expletive], even if I have to haul gravel to finish it up."

Brandon then advised Gorham to put a garbage sack over Patsy's head

"to keep her from bleeding all over the [expletive] place."

Brandon further suggested:

If you can get into a situation where you can knock her

in the [expletive] head, cold cock her, then you can take

that [expletive] gun and stick it right up here, and

angle it up into her [expletive] brain, like this way. .

. . Yeah, and it won't leave no [expletive] blood right

here. You might get a little out of her [expletive] nose

or something, but hey, you get a [expletive] gunny sack

over her, or a plastic sack over her, and you got it

made.

5
Brandon was arrested the following day. On February 19, 1992,

Brandon was charged with conspiracy to commit deliberate homicide

in violation of § 45-4-102, MCA, or, in the alternative, with

solicitation to commit deliberate homicide in violation of § 45-4-

101, MCA. The conspiracy count was dismissed on September 8, 1992,

and Brandon was tried by a jury on December 14-17, 1992. The jury

found Brandon guilty of solicitation to commit deliberate homicide.

Brandon's motion for a new trial was denied.

On February 12, 1993, Brandon was sentenced to twenty-five

years in prison with five years suspended. He was designated a

dangerous offender for purposes of parole eligibility. Brandon

appeals. We affirm.

Did the District Court err by refusing Brandon's proposed jury

instructions on solicitation and entrapment?

Our standard of review of jury instructions in criminal cases

is whether the instructions, as a whole, fully and fairly instruct

the jury on the law applicable to the case. State v. Lundblade

(1981) r 191 Mont. 526, 529-30, 625 P.2d 545, 548. The district

court must instruct the jury on each issue or theory which is

supported by the record. State v. Popescu (1989), 237 Mont. 493,

495, 774 P.2d 395, 396. Brandon contends that he was denied an

opportunity for a fair trial because the District Court refused his

instructions regarding solicitation and entrapment.

Brandon claims that the court should have accepted his

Proposed Instruction No. 27:

6
YOU are instructed that a conviction of criminal

solicitation must be based upon prosecutorial proof

beyond the mere verbal act of soliciting another to

commit a crime. The State is required to present

sufficient evidence to permit a jury to conclude beyond

a reasonable doubt that the solicitation itself was done

with the specific purpose to promote or facilitate the

commission of the crime solicited. Accordingly, a

conviction cannot be established where the actions have

been innocently motivated, done in jest, and with no

proof beyond a reasonable doubt of a purpose to actually

intend to carry out such a crime.

Brandon also offered Proposed Instruction No. 28:

You are instructed that one of the elements required to

be proven in this case is that the defendant solicited

Roger Gorham for the purpose of committing a homicide.

The evidence must be sufficient to prove beyond a

reasonable doubt that Duane Brandon acted with the

specific intent to promote or facilitate the commission

of a crime. It is not sufficient, however, to show

merely that the accused solicited the commission of the

crime. Rather, sufficient circumstances surrounding the

overt act of solicitation must be presented which

corroborate that the act in fact was done with the

requisite specific intent or purpose. This protects

those actions that may have been innocently motivated,

done in jest, or with no purpose to actually have a crime

committed.

These instructions, Brandon contends, properly instruct that to

prove solicitation, the State must additionally prove

"circumstances strongly corroborative of [specific] intent." State

v. Aalbu (Colo. 1985), 696 P.2d 796, 805 (quoting State v. Latsis

(Cola. 1978), 578 P.2d 1055, 1057).

In Aalbu and Latsis, the Colorado Supreme Court considered

constitutional challenges to Colorado's criminal solicitation

statute on grounds of vagueness and overbreadth. Interpreting

Colorado's solicitation statute in both cases, the court held that

the statute--which required the "added element" of circumstances

strongly corroborative of specific intent--was neither overly broad

7
nor unconstitutionally vague.

The State argues, and we agree, that Montana's solicitation

statute does not require proof of circumstances strongly

corroborative of specific intent. Rather, 5 45-4-101(l), MCA,

provides that

[a] person commits the offense of solicitation when, with

the purpose that an offense be committed, he commands,

encourages, or facilitates the commission of that

offense.

(Emphasis added.) According to the State, the jury was properly

instructed on the elements of solicitation. The State proposed,

and the District Court adopted, Instruction No. 11, which read:

You are instructed that to convict the defendant of

solicitation, the State must prove the following

elements:

First: That the defendant commanded, encouraged or

facilitated Roger Gorham to commit deliberate homicide,

a felony: and

Second: That the defendant did so with the purpose that

the crime of deliberate homicide be committed, whether or

not it was actually committed.

If you find from your consideration of all the evidence

that each of these elements has been proved beyond a

reasonable doubt, then you should find the defendant

guilty. If, on the other hand, you find from your

consideration of all the evidence that any of these

elements has not been proved beyond a reasonable doubt,

then you should find the defendant not guilty.

The jury also received Instruction No. 12 on the requisite state of

mind or intent to find Brandon guilty:

A person is not guilty of an offense unless, with respect

to each element described by the statute defining the

offense, he acts while having one of the mental states

described by the statute.

A material element of every offense is a voluntary act,

which includes an omission to perform a duty which the

8
law imposes and which he is physically capable of

performing.

The prosecution must prove, beyond a reasonable doubt,

not only the acts alleged, but also that the defendant

possessed, at the time of the act, the mental state

required.

The jury received Instruction No. 17, which provided that

[a] person acts purposely when it is his conscious object

to engage in conduct of that nature or to cause such a

result.

We hold that the jury was properly instructed as to the definition

of "purposely,11 the mental state element of solicitation. The

State's instructions adequately covered the law on solicitation and

the requisite mental state. See Funk v. Robbin (1984), 212 Mont.

437, 447, 689 P.2d 1215, 1221.

Brandon asserted the defense of entrapment at trial. The

District Court refused Brandon's Proposed Instruction No. 36, which

read:

You are instructed that with respect to the defense of

entrapment, the State is required to prove beyond a

reasonable doubt that the defendant, Duane Brandon, was

not induced to commit the crime alleged. In addition,

the State must prove beyond a reasonable doubt that in

fact Duane Brandon was predisposed to commit the crime

that is alleged in this case.

In considering these elements, evidence of predisposition

must come before the oovernment initiated its olan to

induce the defendant to commit a crime for the purposes

of prosecution. Accordingly, statements made by the

defendant, Duane Brandon, during the period of time that

Roger Gorham had a body wire is not sufficient evidence

to show predisposition as a matter of law.

(Emphasis added). According to Brandon, the court committed

reversible error by proffering instructions which did not require

the State to show that Brandon was "predisposed to commit the

9
illegal acts prior to the initial contact by government agents."

United States v. Mkhsian (9th Cir. 1993), 5 F.3d 1306, 1310 (citing

Jacobson v. United States (1992), 503 U.S. __, _, 112 s.ct.

1535, 1540, 118 L.Ed.2d 174, 184).

The State asserts that Brandon's proposed instruction is

argumentative and unsupported by the case law he cites. The State

characterizes the phrase, "predisposition must come before the

government initiated its plan to induce the defendant to commit a

crime for the purpose of prosecution," as another attempt by

Brandon to present his argument to the jury.

Instruction No. 18, regarding the defense of entrapment,

provided:

You are instructed that the issue of entrapment has been

raised in this case. When a person has no previous

intent or purpose to commit a crime, but is induced or

persuaded by law enforcement officers or their agents to

commit this crime, he is the victim of entrapment and the

law, as a matter of policy, forbids his conviction in

such case. On the other hand, where a person already has

the readiness and willingness to engage in a crime, the

mere fact that law enforcement officers or their agents

provided what appears to be a favorable opportunity is

not entrapment. The law, however, does not permit law

enforcement officers or their agents to originate or

implant the criminal design in the defendant's mind.

Therefore, if you should find beyond a reasonable doubt

from the evidence in this case that before anything at

all occurred respecting the alleged offense, in this case

solicitation, the defendant was ready and willing to

commit such a crime, then you should find that the

defendant is not a victim of entrapment.

If the evidence in this case leaves you with a reasonable

doubt that the defendant had the previous intent or

purpose to commit the offense of solicitation except for

inducement or persuasion of some law enforcement

officer's agent, then it is your duty to find him not

guilty. The burden is upon the State to prove beyond a

reasonable doubt that the defendant was not entrapped.

10
Instruction No. 19 read:

You are instructed that you may find the defendant was

entrapped if you find each of the following:

(1) That criminal intent or design originated in the mind

of the police officer or informer: and

(2) That there was an absence of criminal intent or

design originating in the mind of the accused; and

(3) That the defendant was lured or induced into

committing a crime he had no intention of committing.

In addition, Instruction No. 20 provided:

You are instructed that a person is not guilty of an

offense if his conduct is incited or induced by a public

servant or his agent for the purpose of obtaining

evidence for the prosecution of such person. However,

this defense is not available if a public servant or his

agent merely affords to such person the opportunity or

facility for committing an offense in furtherance of

criminal purpose which such person has originated.

As Brandon correctly asserts, these instructions do not

comport, in whole, with the requirements of Mkhsian. See Mkhsian,

5 F.3d at 1310-11. Specifically, Instruction No. 18 contains the

phrase:

where a person already has the readiness and willingness

to engage in a crime, the mere fact that law enforcement

officers or their agents provided what appears to be a

favorable opportunity is not entrapment.

That phrase, used in Jacobson, was rejected by the court in Mkhsian

because it wrongly permitted the jury to reject the entrapment

defense:

The instruction given by the district court that it is

not possible to entrap '*a person [who] already has the

readiness and willingness to break the law" does not

conform to Jacobson's requirements. "Already" does not

necessarily mean "before the [glovernment intervened":

indeed, it could mean, for example, that even "if

[Mkhsian] was not initially disposed to [buy] drugs, he

could . . . develop such a disposition during the later

coursetE of interacting with Stanton (citation omitted).

So interpreted, the instruction does not correctly state

the law.

11
Mkhsian, 5 F.3d at 1311.

We must determine, then, whether inclusion of the phrase

rejected in Mkhsian is reversible error. See United States v.

Montoya (9th Cir. 1991), 945 F.2d 1068, 1074. We hold that the

error was harmless because: 1) additional language in Instruction

Nos. 18, 19 and 20 make it clear that Brandon was not entrapped if

criminal intent originated in his mind rather than that of the

police or Gorham; and 2) Instruction No. 18 was not identical to

the instruction rejected in Mkhsian.

For future reference when instructing on the defense of

entrapment, Montana courts shall not include in any entrapment

instruction the phrase

where a person already has the readiness and willingness

to engage in a crime, the mere fact that law enforcement

officers or their agents provided what appears to be a

favorable opportunity is not entrapment.

We reemphasize that "it is the government's burden (once evidence

of inducement is shown by the defendant) to prove that the

defendant 'was predisposed to violate the law before the

[glovernment intervened . . . . I II Mkhsian, 5 F.3d at 1311

(citation omitted). We suggest that be made clear in entrapment

instructions.

Brandon's proposed instruction, on the other hand, is clearly

argumentative. Therefore, we hold that his instruction was

properly refused by the District court. See State v. Pecora

(1980) t 190 Mont. 115, 120, 619 P.2d 173, 175. The court's

instructions fully and fairly instructed the jury on the applicable

law in this case. See Lundblade, 625 P.2d at 548. Finally, given

12
the recent Ninth Circuit and U.S. Supreme Court decisions involving

entrapment instructions, we suggest that the Attorney General

review the standard entrapment instructions offered by prosecutors

in Montana to ensure that such instructions comport with current

federal and State law.

II

Did the District Court err by denying Brandon's motion to

dismiss and acquit on the grounds of entrapment?

In reviewing a district court's denial of a motion to dismiss

based on entrapment, this Court reviews the evidence and inferences

therefrom in a light most favorable to the State. State v. Kim

(1989) r 239 Mont. 189, 194, 779 P.2d 512, 515 (citation omitted).

The decision to direct a verdict at the close of the State's case

lies within the sound discretion of the trial court and will not be

disturbed on appeal absent an abuse of discretion. State v. Graves

(1990), 241 Mont. 533, 535, 788 P.2d 311, 313.

Montana's statute on entrapment, § 45-2-213, MCA, provides

that

[a] person is not guilty of an offense if his conduct is

incited or induced by a public servant or his agent for

the purpose of obtaining evidence for the prosecution of

such person. However, this section is inapplicable if a

public servant or his agent merely affords to such person

the opportunity or facility for committing an offense in

furtherance of criminal purpose which such person has

originated.

Entrapment is an affirmative defense and the burden of proving it

rests with the defendant. State v. Kamrud (1980), 188 Mont. 100,

105, 611 P.2d 188, 191 (citation omitted). Although a court may

determine that entrapment exists as a matter of law, Kamrud, 611

13
P.2d at 191, the issue is one for the jury when conflicting

evidence is presented. State v. McClure (1983), 202 Mont. 500,

503, 659 P.2d 278, 280.

The three elements of the entrapment defense are set forth in

State v. Farnsworth (1989), 240 Mont. 328, 331, 783 P.2d 1365, 1367

(citations omitted):

1 . Criminal intent or design originating in the mind of

the police officer, or informer:

2. Absence of criminal intent or design originating in

the mind of the accused: and

3. Luring or inducing the accused into committing a

crime he had no intention of committing.

Brandon argues tbat Bartlett's testimony places any comments by

Brandon in the "proper perspective." According to Brandon,

testimony by Gorham and Officer Lynn Gillett further confirms that

Brandon's notion of killing his wife was merely a joke. Brandon

contends that the waiver of liability and consent forms signed by

Gorham--whereby he agreed with Park County sheriffs to assist in

the criminal investigation by wearing a wire and having one

installed in his truck--are evidence that Gorham was to solicit

Brandon to commit a crime. However,

there is a controlling distinction between inducing a

person to do an unlawful act and setting a trap to catch

him in the execution of a criminal design of his own

conception.

State v. Karathanos (1972), 158 Mont. 461, 470, 493 P.2d 326, 331.

The State's motion for leave to file the information against

Brandon illustrates that the idea to kill Patsy originated with

Brandon, not with Gorham: "Mr. Gorham told Sheriff Johnson that

14
the defendant had contacted him for the second time and asked

Gorham to kill defendant's wife, Patsy Brandon." The jury heard

conflicting evidence as to where the criminal intent originated,

and made its determination. The record supports the jury's

rejection of the defense of entrapment.

During their first recorded conversation, Gorham suggested

that Brandon might have second thoughts. Brandon's response

confirmed that the idea of killing Patsy originated with Brandon:

BRANDON: No, [expletive]. You, you know, I give you the

second [expletive] chance. I asked you, do you want to

be sure 'bout that? [Expletive], I was on your doorstep.

I, I had it all lined out . . . [expletive], I'm serious.

Brandon was not lured or induced into committing a crime which he

had no intention of committing. Rather, it is clear from the

record that Brandon developed the murderous scheme, approached

Gorham, and asked Gorham to kill Patsy. Applying the Farnsworth

standard to this case, and viewing the evidence in the light most

favorable to the State, we conclude that the District Court did not

abuse its discretion by denying Brandon's motion for entrapment.

III

Did the District Court err by restricting Brandon's crossexamination of the informant?

Brandon contends that the District Court improperly restricted

his cross-examination of Gorham. He claims he should have been

allowed to question Gorham about a restraining order against

Gorham, which was issued in an unrelated civil action with Gorham's

insurance company. The State objected on the grounds that the

evidence was irrelevant. The objection was sustained and the jury

15
was ordered to disregard the question.

Part of Brandon's defense at trial was that Gorham had asked

him to burn Gorham's house down so Gorham could collect the fire

insurance benefits. According to Brandon, he refused, and after

Gorham or someone else burned the house down, Gorham had a motive

to entrap Brandon in criminal activity in order to keep Brandon

from revealing Gorham's earlier request for assistance in the

scheme.

Brandon argues that the line of questioning regarding the

restraining order went to Gorham's credibility. The State, on the

other hand, contends that evidence regarding a restraining order in

an unrelated civil action is irrelevant and prejudicial. After a

careful review of the record, we determine that Brandon failed to

establish that his defense was restricted or that the evidence

would have operated to impeach Gorham's credibility.

Brandon further contends that the District Court erred by

refusing his proposed exhibits, which, he asserts, tended to prove

that Gorham concealed himself to avoid testifying at trial. The

exhibits were the State's motion for a continuance and two

affidavits of the deputy county attorney which indicated that

officers were unable to locate Gorham, that the State believed he

had fled Montana, and that the State believed he was attempting to

elude law enforcement officers.

Brandon called Deputy County Attorney Jon Hesse to the stand

during his case-in-chief. Hesse testified that he filed the motion

because he did no,t know where Gorham was prior to trial and thought

16
that Brandon and Gorham might be acting in concert to ensure that

Gorham would be unavailable for trial. He further testified that

his understanding that Gorham had not contacted the sheriff's

office was incorrect. In fact, Gorham had called the sheriff's

office. Gorham was later located in Bozeman. After assuring

prosecutors he would be available for all proceedings, he was

released without bail.

The District Court refused Brandon's exhibits on the grounds

that they were irrelevant. The court also concluded that they were

cumulative, since Mr. Hesse had testified about the contents of the

documents and the whereabouts of Gorham before trial. It is

apparent that Brandon--in an effort to impeach Gorham's

credibility--was able to present evidence of the State's prior

belief that Gorham had fled. Sufficient evidence was before the

jury from which Brandon could attack the credibility of Gorham, who

testified, on these areas. Brandon has not established that the

District Court abused its discretion by restricting his crossexamination or by refusing his proffered exhibits. See State v.

McNatt (1993), 257 Mont. 468, 474-75, 849 P.2d 1050, 1054.

IV

Did the District Court err by refusing to admit Brandon's

statement to police into evidence?

Following his arrest, Brandon was interviewed by Park County

Sheriff Charley Johnson. During trial, Brandon moved to admit into

evidence Proposed Exhibit I, a transcript of the statement he had

given to Sheriff Johnson. The State objected to the exhibit

17
because it was inadmissible at that time. The court withheld

ruling on the matter. The following day at trial, Brandon again

offered Exhibit I. The District Court refused its admission.

Later in chambers, defense counsel urged the admission of Exhibit

I . The State objected on the grounds that the statement was

hearsay, self-serving, and not subject to cross-examination because

Brandon had not testified. The exhibit was refused.

Brandon argues that the statement should have been admitted

under Rule 801(d)(l)(B), M.R.Evid., because, as a prior statement

by a witness, it was not hearsay and was properly "offered to rebut

an express or implied charge against the declarant of subsequent

fabrication, improper influence or motive." However, before prior

statements qualify for admission under the rule, the declarant must

testify and be subject to cross-examination. State v. Scheffelman

(1991), 250 Mont. 334, 338, 820 P.2d 1293, 1296 (citation omitted).

In this case, Brandon had not testified at the time the

statement was offered. Therefore, Brandon's statement was not

subject to cross-examination. Because the exhibit was not offered

after Brandon testified, it appears that Brandon was attempting to

place his unsworn testimony before the jury without taking the

witness stand. Brandon's pretrial statement was clearly

inadmissible under Rule 801, M.R.Evid. The District Court did not

abuse its discretion by refusing into evidence Brandon's pretrial

statement to police. See Steer, Inc. v. Dep't of Revenue (1990),

245 Mont. 470, 475, 803 P.2d 601, 604.

V

18
Did the District Court err by refusing Brandon's motion for a

change of venue?

On March 5, 1992, Brandon moved the District Court for a

change of venue on the grounds of prejudicial pretrial publicity.

Brandon was concerned that he would not receive a fair trial in

Park County. In support of his contention, Brandon attached to his

affidavit several news articles about the alleged offense. The

court held oral argument on his motion on November 12th and denied

the motion on November 19, 1992.

An accused is entitled to a change of venue when there are

reasonable grounds to believe that a prejudicial atmosphere exists

within the present venue which creates a reasonable apprehension

that he cannot receive a fair trial. State v. Palmer (1986), 223

Mont. 25, 29, 723 P.2d 956, 959. To be granted a change of venue

based on prejudicial pretrial publicity, Brandon must show: 1)

that the news reports complained of were inflammatory: and 2) that

the publication of articles actually inflamed the prejudice of the

community to an extent that a reasonable possibility exists that he

may not receive a fair trial. See State v. Ritchson (1982), 199

Mont. 51, 54, 647 P.2d 830, 832. Inflammatory news articles are

characterized by

editorializing on the part of the media or any calculated

attempt to prejudice public opinion against [the

defendant] or to destroy the fairness of the pool from

which his prospective jurors would be drawn.

State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350.

During voir dire, Brandon unsuccessfully attempted to

establish that the news articles inflamed the prejudice of the

19
community or that the jurors harbored any opinions about Brandon's

guilt. Of the twenty-six panel members questioned by defense

counsel, eighteen had read something about the case and eight had

read nothing about the case. Notably, however, defense counsel did

not challenge any of the jurors for cause.

Brandon further claims that his argument is bolstered because

many of the potential jurors read a news article printed on the

Friday immediately preceding the Monday trial date. However,

Brandon did not renew his motion for a change of venue based on the

Friday article.

After a thorough review of the record, we determine that the

newspaper articles were factual and void of editorializing.

Moreover, Brandon failed to demonstrate through voir dire, or at

any other time, .that the news reports were inflammatory or that

they inflamed the prejudice of the community such as to warrant a

change of venue. Denial of a motion for change of venue is not

reversible error in the absence of an abuse of discretion by the

trial court. State v. Smith (1986), 220 Mont. 364, 377, 715 P.2d

1301, 1309. We hold that the District Court did not abuse its

discretion in denying Brandon's motion for a change of venue.

Affirmed.

\

Justicef

20
We concur:

21
March 22, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Charles F. Moses, Esq.

Moses Law Firm

P.O. Box 2533

Billings, MT 59103

Hon. Joseph P. Mazurek, Attorney General

Cregg Coughlin, Assistant

Justice Bldg.

Helena, MT 59620

Wm. Nels Swandal

County Attorney

Park County Courthouse

Livingston, MT 59047

ED SMITH

CLERK OF THE SUPREME COURT

STATE&OF~@NTANA