State v. Kutnyak

No. 32-462

I N T E SUPREME COURT O THE STATE O MONTAPJA

H F F

1984

STATE O MONTANA,

F

Plaintiff and R e s p o n d e n t ,

-vs-

JOSEPH KUTNYAR,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,

I n and f o r t h e County o f R a v a l l i ,

The H o n o r a b l e A r t h u r B. M a r t i n , J u d g e p r e s i d i n g .

COUNSEL O RECORD:

F

For Appellant:

J e f f r e y H. Langton a r g u e d , H a m i l t o n , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana

Dorothy McCarter a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a

R o b e r t B . Brown, County A t t o r n e y , H a m i l t o n , Montana

M a r g a r e t Tonon a r u g e d , Deputy County A t t o r n e y , H a m i l t o n ,

Montana

--

Submitted: March 1 5 , 1984

Decided: J u l y 3 1 1984

Filed: $$i

3=

-

Clerk

Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f

t h e Court.

This is an appeal from the District Court of the

Fourth Judicial District, County of Ravalli, from t h e

conviction of the crime of mitigated d e l i b e r a t e homicide

following a jury t r i a l . The a p p e l l a n t , J o s e p h K u t n y a k , was

sentenced t o t h i r t y years i n the S t a t e Prison.

We affirm.

The appellant shot and killed Charles Hayes on

February 19, 1982. Prior to this killing there were a

number of rather complicated incidents and contradictory

facts concerning the relationship of the two men in the

s p r i n g of 1978. T h e d e c e d e n t , H a y e s , had p u r c h a s e d land i n

t h e West Fork a r e a of R a v a l l i County, known a s t h e Hughes

C r e e k Drainage. H e had moved t o t h e S t a t e o f Montana f r o m

Nevada w h e r e h e had s p e n t some t i m e i n a Nevada j a i l on a n

a s s a u l t conviction after shooting a man in a bar fight.

Following h i s a r r i v a l i n Montana, he b u i l t a cabin i n an

isolated area to be occupied by himself and his wife.

D u r i n g t h i s b u i l d i n g p e r i o d , h i s w i f e S u s a n worked i n Nevada

and v i s i t e d him p e r i o d i c a l l y t o a s s i s t i n t h e b u i l d i n g o f

the cabin. She d i d n o t move t o Montana u n t i l F e b r u a r y o f

1979.

A c c o r d i n g t o t h e r e c o r d , t h e f i r s t c o n t a c t t h a t Hayes

and h i s w i f e had w i t h a n y member o f t h e Kutnyak f a m i l y was

i n t h e l a t e s p r i n g o f 1 9 7 9 when t h e y m e t D e b b i e Kutnyak i n

D a r b y , Montana. They f e l t s o r r y f o r h e r i n a s m u c h a s s h e was

o u t o f work and i n n e e d , and i n v i t e d h e r t o s t a y i n t h e i r

home u n t i l she could f i n d a place t o l i v e . According t o

Susan Hayes' t e s t i m o n y D e b b i e Kutnyak a n d h e r c h i l d s t a y e d

a t t h e c a b i n f o r some t i m e . S u s a n a s s i s t e d D e b b i e and h e r

child i n making a r r a n g e m e n t s t o g e t h o u s i n g . Debbie t o l d

t h e Hayes f a m i l y t h a t h e r h u s b a n d had b e e n k i l l e d i n a mine

a c c i d e n t i n Colorado. T h i s proved t o be f a l s e , f o r a s h o r t

t i m e l a t e r , a f t e r D e b b i e l o c a t e d a c a b i n i n t h e Hughes C r e e k

area, her husband joined her, and the family took up

residence.

Sometime l a t e r i n September 1979, Hayes and several

other persons terrorized the appellant and h i s f a m i l y by

a r r i v i n g a f t e r d a r k one n i g h t , s h o u t i n g and s h o o t i n g a t t h e

c a b i n t h a t housed t h e a p p e l l a n t ' s f a m i l y . According t o t h e

appellant and his wife, this went on for several hours

during the night. The n e x t morning h e a n d h i s w i f e w e n t t o

town t o s e e t h e c o u n t y a t t o r n e y t o h a v e a g g r a v a t e d a s s a u l t

c h a r g e s f i l e d a g a i n s t Hayes and h i s c o m p a n i o n s . As a result

of these charges being filed against Hayes and his

companions, the deceased was put on probation for a

five-year p e r i o d , was o r d e r e d n o t t o h a v e a n y g u n s i n h i s

h o u s e o r i n h i s p o s s e s s i o n and was d i r e c t e d n o t t o h a v e more

than .05% blood alcohol count at any time during his

probation period.

Following his conviction and placement on parole,

t h e r e w e r e numerous i n c i d e n t s t e s t i f i e d t o by t h e a p p e l l a n t ,

S u s a n Hayes and o t h e r w i t n e s s e s f o r t h e S t a t e , s h o w i n g t h a t

Hayes violated the conditions of his parole. From the

testimony produced at trial there is l i t t l e dispute that

Hayes v i o l a t e ? t h e c o n d i t i o n s o f h i s p a r o l e w i t h i m p u n i t y .

His parole officer, S a l l y McRae, testified that she felt

t h a t s h e had an i m p r o v i n g r e l a t i o n s h i p w i t h him d u r i n g t h e

p e r i o d of p a r o l e b u t a c k n o w l e d g e d t h a t h e was " v e r y a n g r y

a n d h o s t i l e t o w a r d law e n f o r c e m e n t . " S h e had a n a r r a n g e m e n t

w i t h h i m t h a t he would r e p o r t i n o n c e a month. During t h e

w i n t e r m o n t h s when t h e a r e a i n w h i c h h e l i v e d was s n o w e d - i n ,

h e would s e n d a r e p o r t o u t by m a i l which t h e P o s t a l S e r v i c e

c o v e r e d twice a w e e k .

In addition to the above facts concerning the

hostility of Hayes and his violations of the parole

p r o v i s i o n s , t h e r e was t e s t i m o n y by t h e s h e r i f f ' s o f f i c e t h a t

it had some p r o b l e m s in the Hughes C r e e k area involving

Hayes pertaining to miners who were exercising mineral

r i g h t s i n t h e a r e a ; problems with p r i v a t e c i t i z e n s o r law

enforcement people in the area; problems involving people

e i t h e r fishing or cross-country s k i i n g who w e r e made a w a r e

of Hayes' p o s s e s s i v e t e n d e n c i e s c o n c e r n i n g t h e p r o p e r t y n e a r

h i s c a b i n i n v o l v i n g t h e u s e o f h i s Doberman dog.

Following the 1979 a g g r a v a t e d assault incident, the

r e c o r d shows t h a t t h e Kutnyak a n d t h e Hayes f a m i l i e s d i d n o t

h a v e a n y c o n t a c t w i t h e a c h o t h e r u n t i l t h e summer o f 1 9 8 0 ,

when they m e t a t a hot springs j u s t over t h e d i v i d e from

t h e i r p r o p e r t y a n d d e c i d e d t o t r y and r e e s t a b l i s h a f r i e n d l y

relationship. From t h a t t i m e u n t i l H a y e s ' d e a t h , t h e r e was

c o n t r a d i c t o r y t e s t i m o n y a s t o t h e r e l a t i o n s h i p between t h e

parties. Hayes' w i f e t e s t i f i e d i n d e t a i l a s t o t h e c o n t a c t s

between the parties, including but not limited to the

e x c h a n g e of p r e s e n t s on b i r t h d a y s and C h r i s t m a s , e x c h a n g e o f

d i n n e r s , h u n t i n g t r i p s and t r a d e s made f o r s u p p l i e s and f o r

marijuana. Hayes grew m a r i j u a n a on t h e i r p l o t s f o r p e r s o n a l

u s e and f o r t r a d i n g p u r p o s e s i n the area. There is a l s o

testimony that the two men hunted together. Also, the

Kutnyak f a m i l y would s t a y w i t h S u s a n Hayes w h i l e t h e men

were out hunting. There was also testimony from other State

witnesses showing that the two men appeared to get along and

did not exhibit hostile behavior in their presence.

On February 1, 1982, Ken and Lisa Schultz, neighbors

of the Kutnyaks, stopped at the Kutnyaks' residence after

returning late from town and stayed there until

approximately 4 : 0 0 a.m. listening to the appellant's stories

about Chuck Hayes. The appellant related many stories which

would be repeated to other persons over the next several

weeks concerning Chuck Hayes' alleged threats to the

appellant and to his family; his efforts at trying to get

the appellant to commit crimes for him and similar stories.

Ken Schultz became so concerned about the situation that he

reported it to Detective Pete Clarkson of the Ravalli County

Sheriff's office. Schultz told him that there might be

problems brewing in the West Fork area.

Clarkson traveled to the West Fork shortly thereafter

to meet with Ken Schultz and another neighbor, John Houston,

both of whom told the detective the stories they had been

told by the appellant. Neither of the men had independent

information which they could supply to the detective other

than what had been told to them by the appellant. Later, at

a subsequent meeting at the home of John Houston, Clarkson

took statements from Houston and Ken Schultz. After hearing

the tapes of that meeting, it was agreed that the sheriff's

office and the probation office still lacked probable cause

for a search warrant, and a meeting at the appellant's home

was set up for February 19, the date of the homicide. The

purpose of this meeting was to attempt to observe Hayes in

violation of his parole.

On the early morning of February 19, 1982, Detective

Clarkson, Probation Officer Sally McRae and Undersheriff Ron

Fisher left the sheriff's office and arrived at the

appellant's home at approximately 9:00 a.m., at which time

appellant and his wife and children were present. The

appellant had been made aware of their coming and agreed to

their plan, which was to observe Hayes to see whether or

not he had any kind of a weapon on him. After arrival at

the appellant's home, the three law enforcement officers

donned bullet-proof vests and took various positions in the

cabin. Shortly after their arrival the appellant had his

wife and their two children go to a home of a neighbor so

they would not be in any danger.

During their wait, the three officers listened to

appellant talk "non-stop:' reiterating what they had

previously been told about Hayes. In addition, during this

time, the appellant told McRae and Clarkson in detail how he

would kill Chuck Hayes. In his various talks with John

Houston, the appellant had previously told Houston how he

would shoot Chuck Hayes and that when he saw him he was

going to bad mouth him and provoke him into drawing his gun.

As the morning grew later and Hayes did not appear, Sally

McRae said that it would be necessary for her to go to town

because she had an appointment. She testified that they had

been told by the appellant that Hayes would arrive for his

mail anytime between 9:30 a.m. and 11:OO a.m. At 12:15 p.m.

the three finally left to return to town. According to the

appellant, Hayes arrived at the mailbox in front of his

house fifteen minutes after the three law enforcement

officers' departure. One of the interesting factors

testified to by all three officers was that, after they

notified the appellant that they were returning to town, he

began to ask questions about what constituted self-defense.

Before the officers left, they suggested that if Hayes came

that day, the appellant should not answer the door.

According to the appellant's statement, Hayes drove up

on his snowmobile, parked it near the mailboxes, came to the

Kutnyak cabin and rapped on his door. He testified that he

did not answer the door and waited awhile until Hayes went

back to his snowmobile. Appellant then ruffled-up his hair,

opened the door and told Hayes that he had been sleeping.

Hayes entered the cabin, took off his pistol holster and put

it on the table. The two men then spent sometime together

smoking marijuana and drinking. Appellant testified that,

as Hayes was about to leave, Hayes insulted him and told him

that he would kill him. Hayes picked up his gun, put it

back on and walked to his snowmobile. Appellant followed

him outside, carrying his 12mm semi-automatic pistol in the

back of his pants.

The testimony concerning what happened, of course, is

that of the appellant. He testified that after Hayes got

next to the snowmobile, he pulled out his gun and shot Hayes

five times. He then claimed, in a statement made to the

sheriff, that he walked over to Hayes, tapped Hayes' gun

back into his holster, walked back into the cabin, had a cup

of coffee and then went to tell a neighbor what had

happened.

The neighbor notified the sheriff's office. The

deputies arrived at the scene about an hour and a half to

two hours later, just before dusk. They arrested the

appellant at the scene and placed him in the Ravalli County

jail. At the time of the arrest, Kutnyak was advised of his

Miranda rights and he gave the officers statements as to

what had happened.

Approximately a month after his arrest, appellant

asked to see the Sheriff of Ravalli County. When the

sheriff arrived at his cell, the appellant began clarifying

his statements made the day of the shooting. He asked the

sheriff to help reenact the shooting and attempted to

demonstrate the transactions occurring at that event. This

was done without a Miranda warning or having any attorney

present, even though he had previously been assigned

counsel.

In preparation for trial, the trial court ordered the

State to make available all of its material in the case.

Later, after the jury verdict and sentence, the sheriff's

office discovered a file that included a letter from some

cross-country skiers complaining that Hayes and his dogs had

harrased them. That letter was not received by counsel

prior to trial. An investigation revealed that one of the

deputy sheriffs had, for investigative purposes, set up a

file of people who lived in the county who might be

contributing to disturbances. The deputy had permission

from the sheriff to have such a file, and it was generally

known in the sheriff Is office that the file was available.

At the time the request was made for all material the county

attorney had concerning the case, this file was overlooked

and was not produced until after trial at which time counsel

for the appellant moved for a new trial.

Five issues are raised on appeal:

(1) Was the jailhouse statement made by appellant to

the sheriff admissible?

(2) Did the court err by admitting the evidence of

appellant's alleged prior threats against an unrelated third

party?

(3) Did the court err in denying appellant's motion

for a new trial following the discovery of a file that was

not turned over him?

(4) Did the court violate appellant's constitutional

rights by forcing him to testify in order to maintain his

self-defense instructions?

(5) Did the State present sufficient evidence to

support a conviction of mitigated deliberate homicide?

The first issue is whether there was a violation of

appellant's right to presence of counsel during his

jailhouse statement to Sheriff Dye. Due to the unusual

facts of this case, the trial judge ordered counsel to brief

the law on this point and held a hearing on the same before

ruling that the statement to the sheriff was admissible. It

is the appellant's contention that the court erred in

permitting Sheriff Dye to testify about a jailhouse

statement made by the appellant because there was no Miranda

warning given, and because counsel was not present at the

time of the statement and therefore there was a violation of

the appellant's Sixth Amendment right to counsel.

The District Court properly denied appellant's motion

to suppress. We hold that, when the appellant asked to talk

to Sheriff Dye, he volunteered the information about his

participation in the crime in an atmosphere free from

coercion. He had been previously given a Miranda warning at

the time of his first confession. Therefore, it was not

error to admit the evidence of his admissions at trial.

Rhode Island v. Innis (1980), 446 U.S. 291, 100 S.Ct. 1682,

64 L.Ed.2d 297; Brewer v. Williams (1977), 430 U.S. 387, 97

S.Ct. 1232, 51 L.Ed.2d 424; Michigan v. Tucker (1974), 417

U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182; Massiah v. United

States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246;

Spano v. United States (1959), 360 U.S. 315, 79 S.Ct. 1202,

3 L.Ed.2d 1265; Commonwealth v. -J&hat 377 Mass. 552,

387 N.E.2d 527; 29 Am.Jur.2d Evidence, section 622.

We also hold that the testimony cannot be excluded as

the fruit of a suppressed statement. Absent a direct

infringement on Fifth Amendment rights, a violation of the

rules of Miranda will not support the exclusion of evidence

derived from the statement, Tucker, supra. If appellant's

statement had been induced by police threats or promises of

leniency, the statement would be involuntary and the

evidence derived inadmissible. See Muham, supra. However,

here the trial court determined, after a hearing, that the

statement made was voluntary, and we will not disturb the

court's findings. Since the statement cannot be traced back

to either a Fourth or Fifth Amendment violation, we hold

that its admission was proper.

Last but not least the State counters the argument of

the appellant that Rule 701, Mont.R.Evid. required the

denial of the admission of the sheriff's statement. The

appellant argued that the sheriff's statement was a

self-serving declaration and was not admissible as proof of

the facts asserted, regardless of whether they were implied

by acts or conduct, were made orally or whether reduced in

writing, citing 29 Am.Jur.2d Evidence, section 622. Rule

701 of the Montana Rules of Evidence states:

"If the witness is not testifying as an

expert, his testimony in the form of

opinions or inferences is limited to

those opinions or inferences which are

(a) rationally based on the perception of

the witness and (b) helpful to a clearer

understanding of his testimony or the

determination of the fact and issue."

We hold that the evidence was offered to provide the

jury with a complete accounting of the conversation between

the appellant and Sheriff Dye. Prejudice is not presumed

when error is alleged. If error occurred, then prejudice

must be demonstrated. Here no error occurred. If there was

error, it was harmless and not grounds for reversal. See

State v. Lapp (Mont. 1983), 658 P.2d 400, 40 St.Rep. 120;

State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343.

The second issue is whether the District Court erred

in allowing testimony, contrary to prior court ruling and

over objection, concerning alleged prior threats by

appellant against an unrelated third party.

Prior to trial, counsel for the appellant submitted a

motion to exclude prejudicial evidence. He requested, in

relevant part, that the court instruct the prosecutor and

her witnesses not to directly or indirectly mention,

refer to, or question, " . . . any matters or things

pertaining to Defendant's prior prosecutions, convictions,

arrests, and any uncharged criminal acts of Defendant or any

defense witnesses on the basis of Rule 404 Montana Rules of

Evidence and cases thereunder."

Rule 404(b), Mont.R.Evid., provides as follows:

"Evidence of other crimes, wrongs, or

acts is not admissible to prove the

character of a person in order to show

that he acted in conformity therewith.

It may, however, be admissible for other

purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of

mistake or accident."

Prior to the opening of the State's case, the court

granted the motion in limine as to prior bad acts of the

appellant. During cross-examination, the State, after

asking a series of questions concerning the appellant's

relationship with his neighbors, asked these questions:

"Q. [counsel for the State] Specifically,

did you ever threaten any of your

neighbors?

"A. [appellant] I don't believe I did.

"Q. Never?

"A. Never."

At that time, counsel for the State asked the trial

judge whether she could approach the bench, saying that she

intended to get into an area where a preliminary ruling

might be needed. Subsequently, respective counsel met in

chambers, and the following dialogue took place:

"MS. TONON: [counsel for the State] At

the commencement there was a motion

granted by the court to prevent the

prosecution from discussing any prior

crimes of the defendant. Before getting

in it, so I don't get jumped on until I

get into it, I intend to ask Mr. Kutnyak

if he had any reason to dislike the

Gosses or any reason to dislike the

Houstons. Should he answer no, I then

intend to indicate that he's telling a

falsehood and he obviously did have a

reason to dislike the Gosses because of

the cow shooting.

"MR. LANGTON : [counsel for appellant]

Why is it relevant?

"MS. TONON: Why is it relevant? The

ultimate goal is that every single

feeling or comment he has expressed about

Chuck Hayes is what he, himself, was

feeling, and h e j u s t t u r n e d i t a r o u n d a n d

applied i t t o Chuck Hayes. It's obvious

t h a t he d i s l i k e d t h e Gosses. Based o n

that, I i n t e n d t o h a v e a w i t n e s s who w i l l

testify t h a t he threatended t o k i l l t h e

Gosses, s i n c e h e ' s j u s t d e n i e d making a

threat.

"THE C O U R T : This doesn' t indicate

c o n v i c t i o n o r c r i m e by him.

"MR. LANGTON: T h e r e was a c h a r g e b r o u g h t

by t h e G o s s e s a g a i n s t Mr. K u t n y a k ' s w i f e ,

Your Honor, i n r e l a t i o n t o s h o o t i n g some

cattle. She was t r i e d and a c q u i t t e d by a

jury. I d o n ' t s e e anywhere--

"THE COURT: The i n c i d e n t i t s e l f may h a v e

some r e l e v a n c e . I d o n ' t know what you

need t o b r i n g , u n d e r t h e c i r c u m s t a n c e s ,

t h e a c q u i t t a l o u t o r , i f you d o n ' t wa.nt

t h a t d o n e , you may want t o b e t h e o n e t o

bring t h a t out.

"MS. TONON: The i n c i d e n t w i t h H o u s t o n s

t h a t I a n t i c i p a t e John Houston, on

r e b u t t a l , would t e s t i f y t o , d e p e n d i n g o n

what Mr. Kutnyak s a y s , t h a t h e was t h e

one t h a t t u r n e d i n J o e [Kutnyak] f o r t h e

t h e f t o f some l u m b e r and h e a l s o s e t up a

r o a d b l o c k f o r some p o t e n t i a l p o a c h i n g ,

which t u r n e d o u t t o b e n o t h i n g , b u t t h a t

would b e a r e a s o n f o r J o e t o h a v e ill

f e e l i n g s a g a i n s t t h e H o u s t o n s , which h e

a l l o f a s u d d e n e x p l a i n s w h a t Chuck had

a g a i n s t t h e Houstons.

"MR. LANGTON: Counsel i s t r y i n g t o s l i p

i n , t h r o u g h t h e back d o o r , a whole s t r i n g

o f a l l e g a t i o n s and a l l e g e d c r i m e s which

t h i s c o u r t h a s a l r e a d y r u l e d on t h a t

c a n n o t b e b r o u g h t up.

"MS. TONON: Not f o r t h e trial but to

prove motive o r i n t e n t .

"MR. LANGTON: Why would that prove

m o t i v e t o k i l l Hayes?

"THE COURT: As I interpret that statute

you c a n n o t b r i n g up a l l e g e d c r i m e s

c o m m i t t e d by t h e d e f e n d a n t h i m s e l f . Now,

i f you c a n t i e d i f f e r e n c e s b e t w e e n t h e s e

p a r t i e s t h a t may h a v e r e s u l t e d i n t h e

p r o s e c u t i o n o f someone e l s e , I s e e no

g r o u n d s p r e v e n t i n g you f r o m d o i n g s o .

"MS. TONON: A l l I i n t e n d , a t t h i s p o i n t ,

i s w e t i e i t up w i t h a n o t h e r w i t n e s s ,

whether h e had a n y p a r t i c u l a r bad

f e e l i n g s a g a i n s t Mr. H o u s t o n , and i f h e

s a y s n o , t h e n I would a s k i f h e ' d had a n y

r u n - i n s w i t h Mr. Houston and h i s a n s w e r s

t o those goes t o h i s c r e d i b i l i t y .

"MR. LANGTON: T h a t would b e p u t t i n g h i m

i n t h e i n t o l e r a b l e p o s i t i o n where t h e r e

i s no-- The S t a t e i n t e n d s t o b r i n g u p

p r i o r crimes. The o n l y t h i n g t h a t t h e

S t a t e h a s , t h e r e is n o t any l e g i t i m a t e

p o s s i b l e m o t i v e t o k i l l Hayes. Now, t h e

f a c t t h a t h e had d i s p u t e s w i t h Mr. Goss

o v e r some c a t t l e w i t h i n h i s g a r d e n , w i t h

Mr. H o u s t o n o v e r a l l e g e d p o a c h i n g h a s

nothing t o do w i t h any m o t i v a t i o n t o k i l l

Hayes and I would o b j e c t s t r e n u o u s l y .

"THE C O U R T : I think it goes t o

impeachment. I ' m g o i n g t o a l l o w you t o

p r o c e e d on t h i s w i t n e s s . "

Thereafter on cross-examination, the State elicited from

witnesses t h e f a c t t h a t some t h r e a t s had b e e n made by t h e

a p p e l l a n t a g a i n s t S t e v e Goss and J o h n H o u s t o n .

The a p p e l l a n t a r g u e s t h a t t h e c o u r t e r r e d i n a l l o w i n g

t h e t e s t i m o n y t h a t a p p e l l a n t had made p r i o r t h r e a t s t o t h i r d

parties, in a violation of Rule 404, M0nt.R.Evi.d. The

a p p e l l a n t c i t e s S t a t e v. C a s e (Mont. 1 9 8 0 ) , 6 2 1 P.2d 1066,

37 S t . R e p . 2057,and S t a t e v. J u s t ( 1 9 7 9 ) , 184 Mont. 2 6 2 , 602

P.2d 957, i n s u p p o r t o f h i s a r g u m e n t t h a t t h e e v i d e n c e was

a d m i t t e d w i t h o u t a n y t e n d e n c y t o e s t a b l i s h a common s c h e m e ,

p l a n o r s y s t e m ; t h e r e f o r e , i t was i n h e r e n t l y p r e j u d i c i a l .

The S t a t e c o n t e n d s t h a t t h e t e s t i m o n y was g i v e n n o t t o

show t h e s i m i l a r i t y o f o t h e r crimes o r wrongs c o m m i t t e d by

the appellant, b u t t o impeach h i s c l a i m t h a t h e g o t a l o n g

w i t h h i s n e i g h b o r s and n e v e r t h r e a t e n e d them. Doing s o i t

r e l i e s on S t a t e v. Austad (Mont. 1 9 8 2 ) , 6 4 1 P.2d 1 3 7 3 , 39

St.Rep. 356, for support that e v i d e n c e may be admissible

under "other purposes" as a means of impeachment. In

A u s t a d , s u p r a , t h i s C o u r t n o t e d : "The r u l e s o f e v i d e n c e were

not intended t o muzzle the State against the defendant's

deliberate attempts to mislead jury members by lying to them

and answering specific questions." 641 P.2d at 1384, 39

St.Rep. at 369. Here the appellant attempted to do just

that in his statements that he got along with his neighbors.

No questions were asked concerning prior misdemeanors or

felonies. Rather, the question was an attempt to show that

he was a not a peaceable member of the community. We hold

the evidence admissible for that purpose. State v. Case,

supra, and State v. Just, supra, are distinguishable because

those cases involved attempts to show similarity of crimes.

The third specification of error is whether the

failure of the prosecution to turn over the sheriff's

"intelligence" file to appellant's counsel warranted a new

trial.

In preparation for trial, counsel for the appellant

made a demand on the county attorney's office that all

information concerning the case be made available to him in

preparation for trial. The county attorney's office turned

over everything it had on the case to defense counsel.

Several months after the conviction it was discovered that

there was a copy of a petition by a number of neighbors in

the area concerning Charles Hayes and the fact that he was

an ex-convict and was allowed to have firearms in his

possession. In addition, it was found that in the Ravalli

County sheriff's office there was an undisclosed

"intelligence" file on the decedent, Charles Hayes. The

file had been compiled by sheriff's deputies during 1979 and

was in the custody and control of Deputy Sheriff Pete

Clarkson, the chief investigating officer in connection with

this case.

The "intelligence" file was simultaneously discovered

by the assistant county attorney and defense counsel in a

search of the sheriff Is department files on January 12,

1983, some five months after the conviction. The appellant,

on the basis of this newly discovered information, filed a

motion to stay the appeal and remand the case to the

District Court for an evidentiary hearing on whether a new

trial was warranted. Following the receipt of briefs and

a hearing before Judge Martin, the trial judge, a new trial

was denied. It should be noted that the file contained the

petition by the neighbors and correspondence between the

Ravalli County sheriff's office and the sheriff in Pioche,

Nevada, where the Hayes family had previously lived and

Charles Hayes had been involved in a shooting in a local

bar.

The appellant claims the State suppressed the

"intelligence" file purposely and that the file contained

evidence about Hayes' bad character. In addition, appellant

alleges that had he had the names of the people that signed

the petition, he would have called them as witnesses as to

Hayes' bad character. The State replied that the material

in this file was cumulative of evidence that came in during

the trial and therefore not prejudicial. In addition, the

State denied it purposely suppressed the file in question.

As previously noted, this Court ordered a hearing by

the trial court on the question raised by the appellant.

Following an extended hearing, the trial court made findings

of fact and conclusions of law, and denied a new trial. In

its concl~usionsof law, the court found that:

(1) There was no deliberate suppression by the sheriff

or the county attorney of any of the appellant's exhibits

offered and received in the hearing.

(2) The failure of the State to provide these exhibits

was caused by inadvertence and was not prejudicial to the

appellant. There was abundant evidence produced by both the

appellant and the State, as to what the absent witnesses

would or could have testified. Any evidence that might have

been given by the signatories of the petition would

therefore be cumulative.

(3) While the evidence that the signatories might have

given relating to the appellant's prior threa.ts and

propensities was material to finding the appellant guilty of

a lesser offense of mitigated deliberate homicide, it was

not material to the defense of use of justifiable force

under the circumstances. The testimony would not alter the

court's sentence and judgment.

(4) There was no reasonable doubt of appellant's guilt

and the additional evidence that might have been adduced by

persons mentioned in the "intelligence file" would merely be

cumulative.

We have carefully examined the so-called secret file

and the evidence contained therein and find no error on the

part of the district judge in refusing to grant a new trial.

This Court in State v. Higley (Mont. 1980), 621 P.2d

1043, 37 St.Rep. 1942, in ruling on a similar situation,

where the trial court refused to grant a new trial

concerning alleged new evidence, noted:

"Section 46-16-702, MCA, governs the

District Court's decision to grant a new

trial. The district judge may do so if

'required in the interest of justice. '

That decision is based on the discretion

of the trial judge and will not be

overturned unless this Court finds an

abuse of discretion. State v. Lewis

(1978), 177 Mont. 474, 582 P.2d 346 at

351.

"This Court has noted that applications

for new trials on the ground of newly

discovered evidence are not favored, for

the reason that the defendant has already

had ample opportunity to prepare and

present his case. State v. Greeno

(1959), 135 Mont. 580 at 586, 342 P.2d

1052 at 1055. However, in certain

instances, the information discovered may

require a new trial. In Greeno, supra,

this Court set out certain rules:

"'(1) That the evidence must have come to

the knowledge of the applicant since the

trial;

"'(2) that it was not through want of

diligence that it was not discovered

earlier;

"'(3) that it is so material that it

would probably produce a different

result upon another trial.' [Citations

omitted.]

"Certainly, each case must be decided on

its own facts. In the present case, we

find that the evidence could have been

discovered with due diligence." 621 P.2d

at 1055, 1056, 37 St.Rep. at 1955, 1956.

The District Court did not abuse its discretion in

denying the motion for a new trial. Despite the existence

of newly discovered evidence, the judge was correct in

finding inferentially under (3) of Greeno, that it was not

so material that it would have produced a different result

upon another trial.

The next issue concerns whether the District Court

erred by compelling the appellant to testify, contrary to

his right against self-incrimination or pain of forfeiture

of his affirmative defense of justifiable use of force. In

the case at bar the appellant asserted the defense of

justifiable use of force. He argues that under Rule 404,

Mont.R.Evid., t h e d e f e n s e may i n t r o d u c e e v i d e n c e t e n d i n g t o

show t h e d e c e d e n t was l i k e l y t o be t h e f i r s t a g g r e s s o r d u e

to his reputation and specific acts of turbulence or

violence. We do not agree with appellant's argument.

Self-defense i s a n a f f i r m a t i v e d e f e n s e and o n c e r a i s e d h e

assumes t h e burden of p r o o f . I f he d e s i r e s t o r a i s e t h i s

d e f e n s e b u t c a n n o t p r o v e i t w i t h o u t h i s own t e s t i m o n y , that

is h i s choice.

Prior t o t h e o p e n i n g of the State's case, the court

stated:

"Now, w e had some m o t i o n s h e r e , a t l e a s t ,

I'm going t o determine e a r l y . The o n e I

h a v e n ' t r u l e d o n , t h e Motion i n Limine,

I ' m going t o deny t h a t motion w i t h

qualifications. The C o u r t i s g o i n g t o

assume, b a s e d upon t h e n o t i c e t h a t h a s

been g i v e n , t h a t t h e D e f e n d a n t Kutnyak

w i l l t a k e t h e w i t n e s s s t a n d and t h e r e b y

l a y a foundation f o r any examination

p r i o r t o t h a t of o t h e r w i t n e s s e s c a l l e d

by t h e S t a t e o r t h e D e f e n s e . If the

Defendant should choose n o t t o t a k e t h e

s t a n d , then he w i l l run t h e r i s k of being

d e n i e d an i n s t r u c t i o n on s e l f - d e f e n s e .

Now, t h a t j u s t a b o u t c o m p e l s him t o t a k e

t h e s t a n d i f he wants t o u s e it."

At that point, the defense counsel neither objected t o the

r u l i n g of t h e t r i a l judge nor a s s e r t e d t h a t h i s c l i e n t c o u l d

n o t be compelled t o t e s t i f y t o e s t a b l i s h s e l f - d e f e n s e . In

a d d i t i o n , h e n e v e r s t a t e d d u r i n g t r i a l o r on a p p e a l t h a t h e

would n o t h a v e had h i s c l i e n t t e s t i f y i f t h e t r i a l j u d g e had

n o t made t h a t r u l i n g .

T h i s C o u r t i n S t a t e v . Logan ( 1 9 7 0 ) , 1 5 6 Mont. 4 8 , 473

P.2d 833, h e l d t h a t u n d e r o u r law t h e i s s u e o f s e l f - d e f e n s e

and the aggressor be raised before evidence of the

decedent's prior threats and acts of violence may be

admitted. Until self-defense and t h e q u e s t i o n o f who was

t h e aggressor is brought i n t o evidence, such evidence is n o t

relevant. We noted in both State v. Breitenstein (1979),

180 Mont. 503, 591 P.2d 233,and State v. Jennings (1934), 96

Mont. 50, 28 P.2d 448, that the trial judge has the

discretion to allow such testimony when the proper

foundation has been laid. Here the trial judge determined

that a proper foundation for evidence of Hayes' reputation

for violence and turbulence was not established at the time

of the State's motion in limine. However, he denied the

motion with the understanding that defense counsel would

later establish the foundation; that appellant would testify

as to his own fear of apprehension based on Hayes'

reputation; and that he would need to have other witnesses

testify as to Hayes' violence of which the defendant had no

knowledge.

Under the circumstances of the homicide here, the

facts were such that without the appellant's testimony, he

could never have met his burden of proof of self-defense or

that Hayes was the aggressor. If the appellant's testimony

were to be disregarded in the event error was found, the

record could not support reasonable doubt on the part of any

rational juror as to his guilt on the basis of self-defense,

and the record would still contain substantial evidence to

support the conviction. Therefore, any error in this regard

must be disregarded. See State v. Grady (1975), 166 Mont.

168, 531 P.2d 681.

This Court has previously held that there are cases in

which the appellant must testify to raise the issue of

self-defense and meet this burden of proof. See Logan,

supra.

Here the trial judge determined that the appellant

would need to testify as to his personal knowledge of Hayes'

violent propensities and prior threats in establishing the

aggressor, in order to lay the proper foundation for

corroborating evidence thereof. The fact that the appellant

had to testify or else risk not sufficiently establishing

self-defense does not, under these circumstances, create a

constitutional denial of his privilege against

self-incrimination.

Finally, appellant argues that the conviction is not

supported by substantial evidence because the State did not

prove beyond a reasonable doubt that appellant had no

reasonable belief that deadly force was unnecessary. Under

the decisions of both this Court and the United States

Supreme Court, the standard of review of the sufficiency of

evidence is: "Whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt." See, Jackson v. Virginia

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d

560, 573; State v. Doney (Mont. 1981), 636 P.2d 1377, 38

St.Rep. 1707; State v. Wilson (Mont. 1981), 631 P.2d 1273,

38 St.Rep. 1040. "Substantial evidence" is defined as "such

relevant evidence as a reasonable mind might accept as

adequate to support a conclusion." See State v. Johnson

(1982), 197 Mont. 122, 127, 641 P.2d 462, 465; Wilson, 631

P.2d at 1278, 38 St.Rep. at 1047.

Reviewing the record, we find that substantial

evidence was presented to the jury. In summary the evidence

is that: (1) The appellant knowingly or purposely provoked

use of force by Hayes against himself, that he deliberately

a r r a n g e d t o m a n i p u l a t e Hayes i n t o d r a w i n g h i s gun s o Kutnyak

c o u l d s h o o t him. ( 2 ) The a p p e l l a n t f a i l e d t o e x h a u s t e v e r y

r e a s o n a b l e means t o e s c a p e t h e d a n g e r . In h i s statement t o

Deputy Sheriff Clarkson, made s h o r t l y a f t e r t h e homicide,

Kutnyak s t a t e d :

" [ I ] £ I n e e d you Mr. t o p u l l o u t your g u n

m i s t e r , t o p u l l o u t y o u r g u n and u s e i t

on m e , t h e n f - go ahead d o i t , i f

t h a t ' s what I r e q u i r e f o r p r o o f , g o a h e a d

do i t , d o n ' t t e l l m e your g o i n g t o k i l l

m e , b e c a u s e you h a v e b e e n t e l l i n g me t h a t

for 2 f years. Do i t . "

( 3 ) John Houston, a neighbor of t h e a p p e l l a n t , had i n v i t e d

Kutnyak t o h i s home two d a y s b e f o r e the shooting. They

talked for four hours, and d u r i n g t h a t t i m e Kutnyak told

him t h a t h e was g o i n g t o p r o v o k e Hayes i n t o d r a w i n g h i s g u n ,

and t h e n h e would s h o o t Hayes. ( 4 ) On t h e d a y b e f o r e t h e

s h o o t i n g , Kutnyak made a s t a t e m e n t t o D e p u t y P e t e C l a r k s o n

i n d i c a t i n g t h a t h e m i g h t s h o o t Hayes. ( 5 ) On t h e m o r n i n g o f

the shooting, Deputy Clarkson, Undersheriff Fisher, and

Probation Officer S a l l y McRae were a t Kutnyak's house

waiting for Hayes to arrive. Clarkson and McRae each

testified that Kutnyak described how h e planned to kill

Hayes. C l a r k s o n t e s t i f i e d t h a t Kutnyak s t a t e d t h a t h e would

be sitting to the right of Hayes, t h e n h e would utter a

p h r a s e t h a t would c a t c h Hayes o f f g u a r d . H e would t h e n g r a b

Hayes' r i g h t arm, d r a w h i s a u t o m a t i c and s h o o t him i n t h e

face. McRae t e s t i f i e d t h a t Kutnyak d e s c r i b e d w h e r e h e and

Hayes would be s e a t e d , t h a t Kutnyak would make a comment t o

him t h a t " h e s h o u l d s t a . r t w e a r i n g a d r e s s , " and " s o m e t h i n g

else" t o provoke Hayes into reaching for h i s gun. Then

Kutnyak was g o i n g t o g r a b H a y e s ' arm w i t h o n e hand and p u l l

h i s gun w i t h the other and s h o o t him in the face. (6)

Clarkson, Fisher and McRae, as we11 as the defendant

himself, each t e s t i f i e d t h a t during t h a t morning, Kutnyak

asked about shooting in self-defense. ( 7 ) Kutnyak's own

t e s t i m o n y e s t a b l i s h e d p r o v o c a t i o n o f Hayes j u s t p r i o r t o t h e

shooting. He knew t h a t Hayes was n o t t o b e t r u s t e d a n d was

u n p r e d i c t a b l e w i t h g u n s when h e d r a n k . H e a l s o knew t h a t

Hayes did not like the police, that he tended to react

v i o l e n t l y w i t h p e r s o n s who d i s c u s s e d him w i t h t h e p o l i c e ,

and t h a t h e would b e i n p h y s i c a l d a n g e r i f h e l e t H a y e s know

t h a t he t a l k e d t o t h e p o l i c e a b o u t him. ( 8 ) Kutnyak a l s o

knew t h a t t h e m o r n i n g o f the shooting, Hayes was i n a b a d

mood and was d r i n k i n g a l c o h o l and smoking m a r i j u a n a . (9)

After Hayes had b e e n d r i n k i n g and smoking for two h o u r s ,

Kutnyak t o l d Hayes f o r no a p p a r e n t r e a s o n t h a t H o u s t o n h a d

s a i d h e s h o u l d wear a d r e s s w i t h h i s p o n y t a i l - - H o u s t o n had

never said any such thing. According to Kutnyak's

t e s t i m o n y , Hayes g o t mad, t o l d Kutnyak h e was g o i n g t o k i l l

him and slammed o u t o f t h e house. Kutnyak f o l l o w e d H a y e s

o u t s i d e and t o l d him t h a t t h e p o l i c e had b e e n t h e r e a n d t h a t

he s h o u l d g o t o h i s c a b i n and s t a y t h e r e . (10) Finally,

a f t e r s h o o t i n g H a y e s , Kutnyak w a l k e d up t o H a y e s ' body a n d

t a p p e d t h e end o f H a y e s ' g u n w i t h h i s f i n g e r s .

V i e w i n g t h i s e v i d e n c e and t h e r u l e s s e t f o r t h i n t h e

above cases, we find that the record c o n t a i n s more than

substantial evidence for a rational trier of fact to

conclude beyond a reasonable doubt that the appellant

d e l i b e r a t e l y p r o v o k e d Hayes i n t o a s i t u a t i o n w h e r e h e c o u l d

s h o o t him.

The judgment of t h e t r i a l c o u r t is a f f i r m e d .

W concur:

e

Chief J u s t i c e \

Justices

I concur i n t h e r e s u l t .

Mr. J u s t i c s John C . Sheehy, M r . J u s t i c e Franlc B . M o r r i s o n ,

J r . , aild M . J u s t i c e D a n i e l J . Shea d i s s e n t and w i l l f i l e

r

written dissents later.

D I S S E N T O F MR. J U S T I C E J O H N C. SHEEHY:

-_-_-----__--_---__--------------------------------

No. 82-462

S t a t e v. Kutnyak

Dated: July 1 6 , 1 9 8 4

Mr. Justice John C. Sheehy, dissenting:

My dissent in this case is based principally on the

admission of testimony that Kutnyak had threatened two of his

neighbors, although the District Court had. earlier granted a

motion. - limine that would foreclose such testimony.

in

The State here violated the court's order by asking

prohibited questions of Kutnyak, expecting, and getting

answers to which it could then claim a right to impeach. In

my book, that is trial by trickery.

Rule 404 (b), M.R.Evid., disallows evidence of other

crimes, wrongs or acts to prove the character of the

defendant to show that he acted in conformity therewith.

Here the State abused that ru1.e. Any threats defendant may

have made to others tend only to show his character, that is,

that defendant was a combative or non-peaceful man. Under

Rule 404(b), that evidence is not relevant.

The State and many District Courts evince a tendency to

allow the jury to review the whole of a defendant's life to

look for a particle that supports conviction. A different

view of a trial should prevail, one confined to the crime

charged, and the facts and circumstances connected to it.

Extrinsic evidence of other acts to prove intent or character

should never be allowed unless relevant, unambiguous, and

having a logical nexus to the crime chargel. Cohn v. Papke

(9th cir. 1981) , 655 F.2d 191; U.S. Dotha.rd (11th cir. 1982) ,

,

) R

Justice

y/