No. 92-414 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

STATE OF MONTANA, Plaintiff

-vsBAR1 LYNNE LOSSON, Defendant and Appellant.

APPEAL FROM: District Court of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson; Thompson & Sessions Billings, Montana Michael G. Eiselein, Attorney at Law, Billings, Montana
For Respondent: Hon. Joseph P. Mazurek, Attorney General: Patricia J. Jordan, Assistant Attorney General, Helena, Montana Dennis Paxinos, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: August 26, 1993 Filed:Justice John Conway Harrison delivered the Opinion of the Court.



### A jury in theThirteenthJudicialDistrict Court,Yellowstone County,convictedBari Lynne Losson (Bari)of mitigated deliberate homicide forthe shootingdeath of herhusband,Rick Losson (Rick). The court sentencedher to twenty yearswith ten years suspended, plus a consecutive six-year term for the use of a weapon. She appeals. We affirm. The issues are: 1. Did theDistrict Court errby admitting hearsay statements of Rick? 2. Did theDistrict Court abuse itsdiscretion in sentencing Bari?3. Did the District Court err ingranting the State's amended information which charged Bari, for the second time, with deliberate homicide? Rick and Bari had a history of domestic problems. In fact, Rick beat Bari on numerous occasions and he was convicted three times for battering her. Followingadomestic disturbance,Baripurchased a .38 Special pistol. On March 13, 1990, after a day of heated argument with Rick, she used the pistol to kill him. On that day at about 8:00 p.m., the couplewas arguing. Rick charged out of the couple's trailer,yelling at Bari. Bari 

### shot at him. She chased him down the street, continuing to fire at him with the revolver. Intotal, she fired six shots,hitting him oncein the thigh. The sixth shot penetrated his chest, killing him instantly. The State charged Bari with deliberate homicide. She raised the affirmative defense of self-defense. Following plea negotiations,theStateamended the informationto chargemitigated deliberate homicide. The State agreed to recommend a sentence of thirty years, twenty-five suspended, and infomed Bari it would seek an additional ten years for her use of a weapon. Bari accepted the plea agreement. On July 10, 1991, Bari pled guilty to mitigated deliberate homicide. Sentencingwas scheduled forAugust 29, 1991. However, the State acquired evidence which suggested Bari killed Rick to gain $106,000 in life insurance. After an investigation,the county attorney informed defense counsel thathe intended to supporthis argument for the ten-year



### use of a weapon sentence by introducing evidence to prove Bari killed Rick in an attempt to recover $106,000 in life insurance. Instead of complying with the plea agreement, Bari withdrew her plea of guilty on the charge of mitigated deliberate homicide. In September 1991, the State recharged 

### Bari with deliberate homicide. The State recharged her, contending that Bari killed Rick to gain $106,000 in life insurance. The trial began on February 25, 1992. On the second day of trial, the court granted Bari's motion to exclude all evidence pertaining to the life insurance. On 

### March 7, 1993, the jury found Bari guilty of mitigateddeliberatehomicide. The District Court sentenced her onMarch 8, 1992, to twenty years, ten suspended,plus a consecutive six-year term for the use of a weapon. She appealed on June 2, 1992.

Did the District Court err by admitting hearsay statements of Rick?The State offered three people who testified to statements Rick had made before he died. The court admitted the testimony, but gave a limiting instruction immediately following each contested statement. First, a counselor at Beta Alternatives testified that Rick had said Bari "threatened to kill him in the past." The court supplied the jury with the following instruction: Ladies and gentlemen, the testimony that you have just heard, to-wit, that Mr. Losson said to [a counselor]

# ..

. that Mrs. Losson had threatened to kill him in the past, is not offered to prove the truth of the matter asserted. In other words, that she intended to do that act,but rather it is offered and its purpose is limited to showMr. Losson's state of mind. That is the hearsay exceptionwhich it canbe admitted under. Accordingly, youarenot to considerthe testimony forany purpose but as it regards Mr. Losson's state of mind. Next, Rick's boss at Hardee's testified that Rick had said "Bari would kill him if he ever moved out." The court gave a similar instruction to the jury. Finally, Rick visited an officer in the Naval Reserves to inquire about the possibility of returning to active duty status during the Dessert Storm conflict. The officer testified that Rick had said he wanted to go active because 

### "[hie was afraid of his wife and thought she was going to kill him." Again, the DistrictCourt gave a similar instruction to the jury. The State argues thatRick's statementswere relevantbecause Bari asserted the claim of self-defense. We agree. We have previously concluded that avictim's state of mind is especially relevant in a homicide casewhere the defendant asserts the claim of self-defense. State v. Magruder (1988), 234 Mont. 492,496,765 P.2d 716,719 (citationomitted). The relevant issue is whether the victim feared the defendant. If a victim has previously announced that he was fearful of a defendant, the jury could infer from that statement that it is unlikely the victim attacked the defendant. Maaruder, 765 P.2d at 719 (citation omitted). If the jury infers that it is unlikely the victim attacked the defendant, it follows that the defendant could not have acted in self-defense. Effectively, testimony about the victim's state of mind rebuts the defendant's claim of selfdefense

# . Here,Rick's statementsto the three witnesses are relevant to the issue of whether Rick feared Bari. Bari, by claiming selfdefense,opened the door for the prosecution to rebut that defense with the stateofmind statements,which establishedRick's fearof Bari. We hold that the three statements were relevant. Next, Bari argues that these statements are inadmissable hearsay. We disagree. Hearsay is a statement made out of court, which is offered in court to prove the truth of the matter asserted. Rule 801(c), M.R.Evid. Rule 801(c), M.R.Evid. reads:[hlearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Although the distinction between hearsay and non-hearsay state of mind statements is somewhat confusing, a leading case from the District of Columbia Court ofAppeals lends clarification. U.S. v. Brown (D.C. Cir. 1973), 490 F.2d 758. That court delineated the distinction betweenhearsay and non-hearsay as it related to state of mind evidence. The distinction turns on whether the statement is evidence which directly proves the declarant's state of mind or whether the statement is evidence which circumstantiallyprovesthe declarant's state of mind. Brown, 490 F.2d at 762-63. If the evidence circumstantially proves thedeclarant's state of mind, then the evidence isnot offered toprove the truth of the matter asserted and the evidence is not hearsay. Brown, 490 F.2d at 762-63. The Brown court explained that: the statement "X is no goodu circumstantially indicates the declarant's state of mind toward X and, where that mental state is a material issue in the case, such statement would be admissible with a limiting instruction. Technically [the statement] is not even hearsay since it is not being admitted for the truth of thematter alleged. We do not care whether X is in fact "no good" but only whether the declarant disliked him.

Similarly,here,weconclude thatthe firsttwo statements are not hearsay. The State did not introduce the statement that Bari "threatened to kill him in the past" to prove the fact that she threatened to kill Rick. Nor did the State offer the statement that "Bariwould kill him if he ever moved out" to prove the fact

### that she contemplated killing Rick if he moved out of the house. Rather, these statements circumstantially indicated Rick's state of mind toward Bari; that he feared her. The jury was instructed not to consider whether Bari, in fact, threatened to kill or would kill Rick. Instead, the jury was instructed to consider Rick's state of mind; whether he was afraid of Bari. We hold that the first two statements were not hearsay. Alternatively, when the evidence directly proves the declarantlsstate of mind, the evidence is introduced toprove the truth of the matter asserted and is hearsay. Brown, 490 F.2d at 762-63. The Brown court rationalized that: the statement "1 hate X" is direct evidence of the declarant's state of mind and, since it is being introduced for the truth of the matter alleged,must be within some exception to the hearsay rule in order to be admissible.

Here, the third statement that Rick "was afraid of his wife and thought shewasgoing tokillhim" isdirect evidenceof Rick's fear. The State introduced the statementtoprove the truth of the matter asserted in the statement or to prove that Rick was afraid of his wife. Since the statement was offered to prove that Rick feared Bari, the statement is hearsay. However, Rule 803(3) M.R.Evid., allows an exception: [a] statement of the declarant's then-existing state of mind, emotion, sensation or physical condition (suchas intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed. The State contends, and we agree, that the third statement

### meets the hearsay exception of Rule 803

### (3), M.R.Evid. The statement was offered to explain ~ick's state of mind when he sought to reenlist to active duty in the Navy. We hold that the third statement meets the hearsay exception of Rule 803(3), M.R.Evid. Although the District Court admitted the three statements under Rule 803(3)

## , M.R.Evid., generally, "we will affirm the decision of the trial court [if it correctlyadmitsthe statements] regardless of its basis in admitting the statements." State v. McCord (1992), 251 Mont. 317, 325, 825 P.2d 194, 200. Here, the District Court correctly admitted the statementsand gave limiting instructions after admitting each statement. Since the court correctly admitted the statements,we affirm its decision. Bari contends thattheDistrictCourt shouldnothaveadmitted the three statementsbecause the statements were not trustworthy, reliable or credible. She suggests that Rick made the statements to fabricate an in-advance corroborationof thedefensehe planned touse thenext timehewas arrested forbeating her. Bari argues that thecourt should have made adeterminationon thereliability, trustworthiness and credibility of the statements prior to admitting them. Conversely, the State argues, and we agree, that the trial judge is not required to scrutinize the credibilityand weight of state 

### of mind statements prior to admitting them. Rather, "the jury is the sole judge of [the] credibility and weightw of testimony. Rule 104(e) M.R.Evid.; Commission Comments, Montana

### Code Annotated, Rule 104(e) M.R.Evid., ~itle 26, Vol. 5, 

### p. 189 (1993). The jury decides the facts and who to believe. 

### We conclude that ~ari had ample opportunity to argue to the jury that, given the circumstances, Rick's statements were not credible. We refuse to second-guess the jury's decision. Moreover, we 

### have previously concluded that state of 

### mind statements are reliable. McCord, 825 P.2d 

### at 200. In thepresent case, 

### Rick told the Naval officer that he wished to reenlist to active duty because "hewas afraid of 

### his wife and thought shewas 

### going to kill him.'* This statement was a spontaneous response which explained 

### his state of 

### mind when he sought 

### to reenlist to 

### active duty with 

### the Navy. Further, when Rick's boss inquired as 

### to why he would not leave Bari, Rick replied that she "would kill [me] if 

### [I] 

### ever moved out.ft This was 

### a spontaneous response to a 

### contemporaneous inquiry as 

### to his state of mind. Finally, on one occasion Rick moved out of the couple's trailer home and lived at a 

### local motel. While at the motel, he phoned his counselor. He told the 

### counselor that Bari "threatened 

### to kill him 

### in the past." This statement 

### was a spontaneous response in a phone conversation in which Rick revealed his 

### state of mind to a counselor. 

### We conclude that a jury could find these statements reliable. Next, Bari contends that the prejudicial effect of the statements outweigh their probative value. We disagree. We will not disturb the district court's evidentiary rulingsabsent 

### an abuse of discretion. Maqruder, 765 P.2d at 718. Here, we conclude that the District Court properly weighed the competing concerns and correctly determined that the probative value of the statementsoutweighed theirprejudicial effect. We hold the court did not abuse its discretion and it properly weighed the evidence in accordance with Rule 403,M.R.Evid. Finally, Bari, for the first time,objectsto theprosecutor's closing argument. She argues that the prosecutor improperly invitedthe jury to useRick's statementsto establishher state of mind. In closing, with no objection from Bari, the prosecutor said:Shemay blame all that past year of history and take it out on him the last one, you son-of-a-bitch,you [have] beenbeating onme forayear,doyou thinkyou are going to leave? Do you think you are going to go to the Navy? You thinkyou are? Oh no, buddy, not after what Ihave been through. 

### You are dying here tonight. It 

### is well established that a defendant's failure to contemporaneously object to an error precludes our review of the alleged error. Statev. Rodgers (Mont. 1993)

### , 849 P.2d 1028,1031- 32, 50 St.Rep. 335, 337. The parties must first allow the trial court the opportunity to correct the error. Rodsers, 849 P.2d 

### at

We do not, by any means, condone the State's excerpted argument inthis case. The State inappropriatelyused the evidence to suggest Barifsstate of mind. However, 

### 5 46-20-104(2), MCA, states that fl[f]ailureto make

a timely objection during trial constitutes a waiver of the objection except 

### as provided in 46-20-701(2)

# . Section 46-20-701(2), MCA, provides that: [n]o claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20- 104,unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that: (a) theright asserted inthe claimdid not exist at the time of the trial and has been determined to be retroactive in its application; (b) theprosecutor, the judge,or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or (c)material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. Here, Bari did not object to the closing argument and, thus, she waived her objection. Further, we cannot allow Bari to raise the objection for the first time on appeal because her objection doesnotmeet an exception under 5 46-20-701(2)

## ,MCA. We hold that Bari's failure to object at trial precludes our review of the alleged error.

Did the District Court abuse itsdiscretion when it sentenced Bari?Bari argues that the District Court shouldhave sentenced her toprobation because she did not have aprior criminal record, and sheposed no great risk to society at the time of sentencing. This argument lacks merit. Where the district court has considered the factors of 9 46- 18-101(3), MCA, and where the sentence is within the legal limitsimposed by the applicable statutes, this Court will not find an abuse of discretion. Statev. Alrnanza (1987),229 Mont. 383, 386, 746 P.2d 1089, 1091. Mitigated deliberate homicide carries a maximum sentence of fortyyears imprisonment and a $50,000 fine 

### (5 45-5-103 (4), MCA) and the maximum sentence forusing a weapon is ten years (5 46-18-221(1), MCA), Weconcludethat thecourtfollowedthe statutorycriteria and sentenced Bari within the limits of the mitigated deliberate homicide statute, twenty years with ten suspended, and the enhancement statutefar using a weapon, sixyears. The court gave ample justification for the sentence imposed. We hold that the District Court did not abuse its discretion in sentencing Bari. I11 id the District Court 

### err when it allowed the State to reinstate the charge of deliberate homicide against ~ari? Bari argues that the State breached the plea agreement, causingher towithdraw her plea. However, thefactsintherecord negate her argument. The parties agreed that the Statewould recommend a thirtyyear sentence with twenty-five suspended if Bari pled guilty to mitigated deliberate homicide. They also agreed to argue the sentence for Bari's use of a weapon at the sentencing hearing. Bariknew thattheStateintendedtoargue forthemaximum ten-year sentence. After Bari pled guilty, the State informed her that it 

### expected tointroducerecently discovered evidencetoprove 

### Bari'smotive inkillingRickwas to gain $106,000in life insurance. The State informed ~ari that it would only use the evidence to support itsargument for themaximum ten-year sentence foruse of aweapon. Bari withdrew her plea. The State did not breach the plea agreement. Rather, Bari chose to withdraw her plea. The State did not withdraw its offer to recommend thirtyyearswith twenty-five suspended. Instead,as agreed,the State only intended to use the evidence to support its argument for the maximum ten-year use of a weapon sentence. Moreover, the Statewas under a duty to present the courtwith the concealed facts about Bari's insurancemotive. See State

### v. Brown

(1981), 193 Mont. 15, 18, 629 P.2d 777, 778-79. We hold that the State did not violate the plea agreement. Next, Bari contends that double jeopardy should have barred the State from reinstating the charge of deliberate homicide against her. She argues that double jeopardy attached when the court accepted her initial guilty plea to mitigated deliberate homicide,which she laterwithdrew. Thus, shemaintains that the courtshould havebeen precluded fromallowingthe reinstatementof the deliberate homicide charge. This argument lacks merit. This issue ismoot. See Taylor v. Kincheloe (9thCir. 1990), 920F.2d 599, 602. Bariwas only convictedof mitigated deliberate homicide and,the jury,by implication,acquittedher of deliberate homicide. Even if Bari could challenge the deliberate homicide charge on double jeopardy grounds, we would not be compelled to overturn her conviction of mitigated deliberate homicide. SeeTavlor, 920 F.2d at 602. Moreover, Bari withdrew her plea, knowing that she was subjecting herself to the possibility that the State would reinstate the deliberate homicide charge. As the United States Supreme Court stated, "the Double Jeopardy Clause 

# . . 

# .does not relieve a defendant from the consequences of [her]

# .

# . .voluntary choice.I1 U.S. v. Scott (l978), 437 U.S. 82, 99, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65, 79. Specifically, here, Bari cannot "reject [the] plea bargain and then erect the shield of double jeopardy," Fransaw v. Lynaugh (5th Cir. 1987), 810 F.2d 518, 526, cert. denied, 483 U.S. 1008, 107 S.Ct. 3237,toprotect herself from the charge of deliberatehomicide. SeeU.S. v. Gerard (9thCir. 1974), 491 F.2d 1300, 1306. We hold that the District Court did not violate double jeopardywhen it allowed the State to recharge Bari with deliberate homicide. Affinned.Justice Terry N. Trieweilerdissenting. I dissent from the majority s conclusion that out-of -court statements made by Rick Losson to the effect that his wife had "threatened to kill him,I1or that he was afraid "she would kill him," were not inadmissiblehearsay statements. It is clear from a review of the evidence in this case that the statementswere offered forone purpose only. 

### Thatpurpose

### was to prove that defendant had planned to kill Rick Losson prior to the date on which his death occurred. To contend, as does the majority, that the jury could infer from the statements that itwas unlikelythatRickwould attack defendant, flies inthe face of the fact thathehad a criminal record for abusing andbeating her,and

a history of having done so for the entire one and a half years of their relationship. Rule 801(c), M.R.Evid., reads: Hearsay is a statement, other than one made 

### by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. By that definition, every one of Rick's out-of-court statements were inadmissible hearsay. They were all made by the victim,who was not there to testify,nor be cross-examined. They

were all offered to prove that defendant had either threatened to kill Rick, or that he honestly believed she intended to kill him. They were offered to disprove her denial that his death was premeditated.

### All the arguments about the decedent's state of mind are merely window dressing to excuse the admission of statements by

someonewho was not under oath and not subjectto confrontationby defendant so that the veracity of the statements could be tested. Under the facts in this case, the decedent's state ofmind was not

an issue, and the out-of-court statements should not have been admitted. To admit them under the pretext that they established the decedent's state of mind, and then instruct the jury not to consider whether what he said was true, is a use of smoke and mirrors to avoid the Rules of Evidence. The effect 

### of this decision is that the state of mind exception effectively swallows the hearsay rule. The District Court's instruction did not cure the prejudice to defendant. Therefore, I

### would reverse the judgment of the DistrictCourt and remand this case for retrial after excluding the inadmissible hearsay evidence.