State v. Buckley

No. 13336

I N T E SUPREME COURT O THE STATE OF MONTANA

H F

1976

THE STATE O MONTANA,

F

P l a i n t i f f and Respondent,

-vs -

GARY L N BUCKLEY ,

YN

Defendant and Appellant.

Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,

Honorable Robert S. K e l l e r , Judge p r e s i d i n g .

Counsel of Record:

For Appellant :

Fennessey, Crocker & Harman, Libby, Montana

David W. Harman argued, Libby, Montana

J e a n E l l i s o n appeared, Libby, Montana

Donald La S h a f f e r , Libby, Montana

For Respondent:

Robert La Woodahl, Attorney General, Helena,

Montana

Lon J. Maxwell argued, A s s i s t a n t Attorney General,

Helena , Montana

William A. Douglas argued, County Attorney, Libby,

Montana

Submitted: October 12, 1976

Decided : DEC 15 1976

DEC 1.5 1946

Filed :

M r . Chief J u s t i c e James T. Harrison d e l i v e r e d t h e Opinion of

t h e Court.

This i s an appeal from a j u r y v e r d i c t of g u i l t y , and

sentence of 100 years i n t h e s t a t e prison of t h e d i s t r i c t c o u r t ,

Lincoln County.

The e s s e n t i a l f a c t s began i n l a t e June 1975 and culminated

with t h e homicide of James A. McIntyre on J u l y 4, 1975. McIntyre,

a newcomer t o Eureka, Montana, was working on a ranch i n t h e

v i c i n i t y and s t a y i n g a t t h e DeLong cabin n e a r Glen Lake, with t h e

consent of t h e owner. O J u l y 3, 1975, Gary Buckley a l s o received

n

permission from ~ e t o n gt o s t a y a t h i s cabin, as he had done on

another occasion. A t t h i s time Buckley was AWOL from t h e United

S t a t e s Marine Corps. McIntyre was never informed t h a t Buckley

had obtained permission t o s t a y a t t h e DeLong cabin and upon re-

turning t o t h e cabin on J u l y 3, 1975, he was s u r p r i s e d t o be met

by him. They introduced themselves and McIntyre l e f t s h o r t l y

thereafter. Believing Buckley t o be on t h e premises unlawfully,

McIntyre and one Jay A l l i s o n went t o t h e l o c a l p o l i c e t o inform

them. That n i g h t McIntyre returned t o t h e cabin with a Lincoln

County s h e r i f f ' s deputy i n McIntyre's truck. The deputy was

dressed i n c i v i l i a n c l o t h e s and was armed a t t h e time. After

f a i l i n g t o f i n d Buckley, t h e deputy and McIntyre l e f t and

rendezvoused with A l l i s o n and two o t h e r law enforcement o f f i c e r s .

The o f f i c e r s returned t o Eureka, b u t McIntyre and A l l i s o n returned

t o t h e cabin, searched t h e a r e a again, and according t o Buckley,

y e l l e d t h r e a t s d i r e c t e d a t him, i f he should be nearby, t o s t a y

away o r he would be harmed.

Buckley s t a t e d he observed a l l of t h e s e events from nearby

where he was sleeping f o r t h e n i g h t because he feared f o r h i s

l i f e and believed A l l i s o n and McIntyre were o u t t o g e t him,

McIntyre being A l l i s o n ' s h i r e d gun, a s a r e s u l t of a f a l l i n g o u t

between A l l i s o n and Buckley.

The r e s t of t h e episode comes from Buckley through h i s

statement given a f t e r h i s a r r e s t and testimony a t t r i a l :

On t h e afternoon of J u l y 4, 1975, Buckley was reading a

book i n t h e DeLong c a b i n when he saw McIntyre's t r u c k approach.

The t r u c k went slowly p a s t t h e cabin, d i d n o t come i n t o t h e driveway,

and stopped 15 t o 20 yards p a s t t h e cabin. Buckley, sensing danger,

r o s e from h i s c h a i r , g o t h i s <.44 magnum, and went t o t h e door. As

he went p a s t t h e r e f r i g e r a t o r , Buckley heard a n o i s e behind him,

o u t s i d e t h e cabin. A s he turned, he saw McIntyre holding a r i f l e

w a i s t high. McIntyre leveled t h e r i f l e and s h o t a t Buckley, missing

him. Buckley f i r e d back, and missed McIntyre. McIntyre began

running t o h i s t r u c k , and Buckley continued shooting, wounding

McIntyre, knocking h i n t o t h e ground and causing him t o drop t h e

rifle. Buckley continued t o walk toward McIntyre, who was l y i n g

s t i l l a t t h e time, and continued shooting, h i t t i n g McIntyre two

more times and from l e s s than seven and one-half f e e t away ( a s

evidenced by powder burns). F i n a l l y , Buckley kneeled down and

d e l i v e r e d t h e f a t a l shot t o McIntyre's head from l e s s than a f o o t

away.

Buckley s t a t e d he a c t e d from " i n s t i n c t " ; was i n a " s u b t l e

s t a t e of mind1'; a "subconscious s t a t e of mind"; and h i s a c t i o n

was l i k e t h e "wrath of God coming down on J i m McIntyre" a s he began

shooting. He t e s t i f i e d he s h o t McIntyre i n t h e head t o put him out

of h i s misery.

- 3 -

Buckley w a s convicted of d e l i b e r a t e homici'de, and

sentenced t o 100 years i n prison. On appeal defendant r a i s e s

f i v e i s s u e s f o r t h i s Court's review:

First i s t h e withdrawal of t h e i n s t r u c t i o n on m i t i g a t e d

d e l i b e r a t e homicide a f t e r i t was given t o t h e jury. This occurred

when t h e j u r y , a f t e r r e t i r i n g t o d e l i b e r a t e , asked f o r f u r t h e r

i n s t r u c t i o n on t h e meaning of "extreme mental o r emotional s t r e s s " .

The d i s t r i c t c o u r t judge withdrew t h e i n s t r u c t i o n and i n s t r u c t e d

t h e jury t h a t only d e l i b e r a t e homicide should be considered by i t .

Second d i d t h e d i s t r i c t c o u r t e r r i n f a i l i n g t o dismiss

t h e d e l i b e r a t e homicide charge on defendant's motion a t t h e c l o s e

of t r i a l .

Third, defendant b e l i e v e s any statements made by him

a t t h e suppression hearing, concerning t h e v o l u n t a r i n e s s of h i s

w r i t t e n statement, could n o t be used f o r impeachment by t h e s t a t e .

Fourth i s whether t h e d i s t r i c t c o u r t e r r e d i n admitting

p i c t u r e s of t h e deceased over t h e defendant's o b j e c t i o n of

i r r e l e v a n t , gruesome, and p r e j u d i c i a l .

F i f t h and f i n a l l y , defendant questions t h e i m p a r t i a l i t y of

t h e jury. He argues h i s motion f o r a change of venue based upon

p r e t r i a l p u b l i c i t y about t h e defenses r a i s e d should have been

granted. It was denied a f t e r i n d i v i d u a l v o i r d i r e of t h e j u r o r s

a s t o t h e i r knowledge of t h e c a s e and t h e defenses t o be r a i s e d .

Defendant a l s o argues t h e e n t i r e panel should have been dismissed

because t h e d i s t r i c t c o u r t informed t h e j u r o r s before t h e i n d i v i d u a l

v o i r d i r e t h a t a change of venue could be a f r i g h t f u l expense t o t h e

people of Lincoln County.

F i r s t , defendant objected t o t h e withdrawal of t h e

i n s t r u c t i o n covering mitigated d e l i b e r a t e homicide on t h e

grounds t h e s t a t e f a i l e d t o o b j e c t t o t h e mitigated d e l i b e r a t e

homicide i n s t r u c t i o n , t h a t a s a matter of law mitigated d e l i b e r a t e

homicide should be considered a s p a r t of t h e c a s e , and t h a t o t h e r -

wise t h e i n s t r u c t i o n s were s a t i s f a c t o r y f o r purposes of making

a determination by t h e jury.

The s t a t e and defendant agree S t a t e v. Thomas, 147 Mont.

325, 413 P.2d 315, and S t a t e v. Taylor, 163 Mont. 106, 515 P.2d 695,

s e t f o r t h t h e t e s t t o be applied. Namely, t h e d i s t r i c t c o u r t ' s

i n s t r u c t i o n s must cover every i s s u e o r theory having support i n

t h e evidence, and t h e inquiry of t h e d i s t r i c t c o u r t must only be

whether o r n o t any evidence e x i s t s i n t h e record t o warrant an

i n s t r u c t i o n on m i t i g a t e d d e l i b e r a t e homicide.

Therefore, we determine i f t h e r e was any evidence of ex-

treme mental o r emotional s t r e s s on t h e p a r t of defendant pre-

sented a t t r i a l . W e f i n d none. Defendant, h i m s e l f , s t a t e d he

was n o t i n shock b u t was i n a " s u b t l e s t a t e of mind, a subconscious

s t a t e of mind.'' He d i d n o t e x c i t e d l y begin t o f i r e and continue

i n t h e same manner, b u t slowly and d e l i b e r a t e l y walked, n o t r a n ,

towards McIntyre. A t t h i s time he s t a t e s McIntyre was n o t

s t r u g g l i n g t o r e g a i n c o n t r o l of h i s r i f l e , b u t was l y i n g t h e r e

incapacitated. Nevertheless, Buckley shot him twice more from

c l o s e range, and then k n e l t down and d e l i v e r e d t h e f a t a l s h o t t o

t h e head, t o "put him out of h i s misery." This testimony i s

incredible. Defendant was n o t i n extreme mental s t r e s s , b u t h i s

a c t i o n s were t h a t of a slow, d e l i b e r a t e , calm, and cool k i l l e r .

Thus, t h e d i s t r i c t c o u r t was c o r r e c t i n f i n d i n g t h e r e was no evidence

of extreme mental o r emotional stress.

- 5 -

A s t o t h e d i s t r i c t c o u r t ' s withdrawal of an i n s t r u c t i o n ,

S t a t e v. Jackson, 88 Mont. 420, 293 P. 309, s e t s o u t t h e proposition

t h a t i t i s p r e j u d i c i a l e r r o r t o withdraw a required i n s t r u c t i o n .

A s f o r an improperly given i n s t r u c t i o n , n o t required by law, we

adopt t h e r a t i o n a l e of t h e Supreme Court of Hawaii i n S t a t e v.

O'Keefe, 45 Haw.368, 367 P.2d 91, 94, t h a t a c o u r t has t h e power t o ,

and may, c o r r e c t e r r o r s i n i t s i n s t r u c t i o n s by withdrawing, ex-

p l a i n i n g , o r c o r r e c t i n g them. This i s i n accord with t h e d i s c r e t i o n

granted a d i s t r i c t c o u r t i n i n s t r u c t i n g t h e j u r y a f t e r submission

of t h e c a s e by s e c t i o n 95-1913, R.C.M. 1947.

Second, t h e d i s t r i c t c o u r t d i d n o t e r r i n denying defendant's

motion t o dismiss t h e d e l i b e r a t e homicide charge f o r i n s u f f i c i e n c y

of t h e evidence. Section 95-1909(i), R.C.M. 1947, s t a t e s :

"* * *the c o u r t may on i t s motion o r the motion

of t h e defendant, dismiss t h e a c t i o n *.It * *'

(Emphasis supplied).

The s t a t u t e d e f i n i t e l y leaves t h i s determination w i t h i n t h e

d i s c r e t i o n of t h e d i s t r i c t c o u r t , and i t s a c t i o n w i l l n o t be d i s -

turbed on appeal u n l e s s t h e r e i s an abuse of t h a t d i s c r e t i o n .

W f i n d no such abuse of d i s c r e t i o n , s i n c e t h e s t a t e introduced

e

evidence which tended t o prove a l l t h e elements of d e l i b e r a t e

homicide. The f a c t t h a t some of t h a t evidence could be i n t e r p r e t e d

t o show m i t i g a t i o n does not t a i n t t h e d e c i s i o n of t h e d i s t r i c t

court. The d i s t r i c t c o u r t properly l e f t i t t o t h e j u r y t o decide

whether t h e s t a t e ' s evidence was enough t o prove i t s c a s e beyond

a reasonable doubt. Defendant sought t o have t h e d i s t r i c t c o u r t

weigh t h e evidence presented, which i s w i t h i n t h e province of t h e

jury, not the court.

Third, defendant cites Simmons v. United States, 390

U.S. 377, 88 S,Ct. 967, 19 L ed 2d 1247, 1259, as authority

that the prosecution cannot use defendant's testimony at a

pretrial suppression hearing to impeach the defendant's credibility.

Simmons made no such ruling. It held:

"* * * when a defendant testifies in support of a

motion to suppress evidence on Fourth Amendment

grounds, his testimony may nottkreafter be admitted

against him at trial in the issue of guilt, unless

he makes no objection." (Emphasis supplied) .

In Simmons the suppression hearing testimony was used

in the prosecution's case-in-chief to show ownership by the

defendant of a suitcase containing incriminating evidence. In

the instant case, the testimony was used on cross-examination to

attack defendant's credibility, by showing he testified before

to an entirely different account of the July 4, 1975 homicide,

implicating someone other than himself. In no way did this

address the guilt of defendant, in fact it spoke to another person

committing the homicide. Only the credibility of the defendant

was attacked.

Defendant argues this Court should not follow Harris v.

New York, 401 U.S. 222, 91 S.Ct. 643, 28 L ed 2d 1, because

that decision dealt with the Miranda right, and not the assertion

of a constitutional right at the suppression hearing, as in this

case. However, identical rationale, to guard against perjury, was

followed by the United States Supreme Court in Walder v. United

States, 347 U.S. 62, 74 S.Ct. 354, 98 L ed 503. There the Court

allowed physical evidence (narcotics), unlawfully seized and

inadmissible in the prosecution's case-in-chief in another case

against the same defendant, to be used on cross-examination and

introduced to impeach the defendant's direct examination testimony .

Additionally, defendant argues his objection should have

been sustained at the suppression hearing because the cross-

examination was outside the scope, and such was prejudicial error,

since this testimony was used at trial to impeach him. A close

examination of the transcript does not bear this out. The testimony

used at trial for impeachment purposes was that given by defendant

on direct examination and examination by the court, and not cross-

examination.

Fourth, defendant alleges pictures of the deceased were

erroneously admitted. In State v. Newman, 162 Mont. 450, 460, 513

P.2d 258 and State v. Bischert, 131 Mont. 152, 159, 308 P.2d

969, the Court set foeth the rule of law. In Newman the Court

stated:

**

photographs stand on the same footing

11 I I ~ *

as diagrams, maps, plans, and the like, and as

a general rule, whenever relevant to describe a

a person, place, or thing, they are admissible

for the purpose of explaining and applying the

evidence and assisting the court and jury in

understanding the case."

"'Photographs that are calculated to arouse the

sympathies or prejudices of the jury are properly

excluded, particularly if they are not substantially

necessary or instructive to show material facts or

conditions. 20 Am.Jur.,Evidence, 5 729, p.609.'

11* * *the

fact the photographs could tend to arouse

sympathy in the minds of the jurors is not the only &&minative

issue. the probative value of the photographs was

never explained to the jury by the medical witness."

In Newman the state's witnesses did not testify to the

pictures except to lay the proper foundation through one witness,

and then left alone. Such was not the case here. The probative

value of the photographs was constantly explained to the jury

throughout the trial. This was done (1) by the investigating

o f f i c e r s t o demonstrate what they found upon a r r i v i n g a t t h e scene;

(2) by t h e witnesses who located t h e body a s t o where they found

i t and i n what p o s i t i o n i t was; ( 3 ) by a medical witness t o

d i s c u s s t h e number of s h o t s and t h e damage done; and (4) by

defendant himself. The probative value of t h e s e photographs

was e x t e n s i v e l y explained t o t h e c o u r t and j u r y , and such

f a r outweighed t h e i r p r e j u d i c i a l e f f e c t . W f i n d no e r r o r .

e

F i n a l l y , defendant contends a change of venue should have

been granted due t o p r e t r i a l p u b l i c i t y and a l t e r n a t i v e l y t h e

e n t i r e panel of j u r o r s should have been dismissed because t h e

d i s t r i c t c o u r t commented t o t h e j u r y on t h e economical e f f e c t

on t h e county i f a change of venue occurred.

The b a s i s of defendant's motion was p r e t r i a l p u b l i c i t y

i n t h r e e newspapers, t h e Missoulian, t h e Daily I n t e r Lake, and

t h e Western News, and a highly publicized p o s t e r c i r c u l a t e d i n

t h e a r e a which described defendant and asked f o r information a s

t o h i s whereabouts due t o h i s a l l e g e d p a r t i n t h e homicide. As

f o r t h e newspaper a r t i c l e s , t h e defense was concerned t h e j u r y

panel members had been Cmpaneled s i n c e September and would f i n d

p a r t i c u l a r i n t e r e s t i n any cases upon which they might s i t a s

jurors. Furthermore, one of t h e t h r e e a r t i c l e s described with

p a r t i c u l a r i t y t h a t t h e defenses of a l i b i , i n s a n i t y , and s e l f -

defense were going t o be used by t h e defense. Defendant con-

tended t h a t such information would cause t h e j u r o r s t o b e l i e v e

from t h e o u t s e t t h a t defendant admitted t h e shooting, b u t was

r e l y i n g upon self-defense, which i n e f f e c t takes away t h e defense

option of waiting t o s e e t h e s t a t e ' s proof before r a i s i n g s e l f -

defense.

However, t h e d i s t r i c t c o u r t before s e a t i n g t h e j u r o r s

performed an i n d i v i d u a l v o i r d i r e of each j u r o r i n chambers a s

t o b i a s and knowledge of t h e case. Each j u r o r s e a t e d s t a t e d

he o r she could render an i m p a r t i a l v e r d i c t based upon t h e

evidence presented a t t r i a l . This procedure by t h e d i s t r i c t

c o u r t i s i n accord with precedent s e t by t h i s Court. State

v. Sheerin, 12 Mont. 539, 31 P. 543; S t a t e v. Byrne, 60 Mont. 317,

199 P. 262; S t a t e v. Juhrey, 61Mont. 413, 202 P. 762; S t a t e v.

White, 151 Mont. 151, 440 P.2d 269. W f i n d no e r r o r .

e

The judgment i s affirmed.

W Cancur:

e L

Judge, k k t t i n g f o r M r . J u s t i c e

Wesley C a s t l e s .