State v. Sunday

No. 14591 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent, VS . ANDREW C. SUNDAY, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, Honorable W. W. Lessley, Judge presiding. Counsel of Record: For Appellant: A. Michael Salvagni argued, Bozeman, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Richard Larson argued, Assistant Attorney General, Helena, Montana Charles Graveley argued, County Attorney, Helena, Montana

Submitted: January 14, 1980 Decided: MAR 2 7 1980

Mr. J u s t i c e John C. Sheehy d e l i v e r e d t h e Opinion o f t h e C o u r t .

Andrew C. Sunday a p p e a l s from c o n v i c t i o n s e n t e r e d i n t h e D i s t r i c t C o u r t , F i r s t J u d i c i a l D i s t r i c t , Lewis and C l a r k County, on c h a r g e s of d e l i b e r a t e homicide, b u r g l a r y and t h e f t , i n v i o l a t i o n of s e c t i o n s 45-5-102, 45-6-204 and 45-6-301, MCA, r e s p e c t i v e l y .

Sunday came t o Montana i n e a r l y September 1977 w i t h James Wilson, Donna M i t c h e l l and M i t c h e l l ' s t h r e e y e a r o l d

daughter. O September 4 , 1977, t h e y s t o p p e d t h e i r c a r a t n

a rest a r e a on Highway 200, e a s t of t h e c o n t i n e n t a l d i v i d e n e a r L i n c o l n , Monbana. D e s i r i n g t o " g e t away from a l l t h e h a s s l e s " and " l i v e o f f t h e l a n d " , t h e y packed up s u p p l i e s and walked i n t o t h e w i l d e r n e s s a l o n g t h e c o n t i n e n t a l d i v i d e .

I t soon became a p p a r e n t t h e y c o u l d n o t go f a r on f o o t . So, i n t h e e a r l y morning h o u r s o f September 5 , 1977, Sunday and Wilson t o o k t h r e e h o r s e s from t h e Evergreen r e s o r t owned and o p e r a t e d by Kenneth and Marion McLean. Additionally, they b r o k e i n t o a t a c k s h e d which was used f o r s t o r i n g h o r s e t a c k used i n t h e McLeans' h o r s e - r e n t i n g b u s i n e s s . They took t h r e e s a d d l e s and t h r e e b r i d l e s . The t a c k s h e d was e i g h t f e e t by twenty f e e t and w a s made o u t of rough lumber. I t contained no l i v i n g f a c i l i t i e s .

Sunday, Wilson and t h e M i t c h e l l s s p e n t t h e n e x t two d a y s r i d i n g t h e horses along t h e continental divide. On t h e a f t e r n o o n o f September 6, 1977, t h e y saw a p i c k u p t r u c k r a p i d l y approaching. They t r i e d t o e s c a p e i n t o t h e trees b u t w e r e c u t o f f by t h e pickup. The p i c k u p was d r i v e n by Kenneth McLean. H i s w i f e was a l s o i n t h e pickup. Kenneth McLean s t o p p e d t h e p i c k u p a b o u t s i x t y - f i v e f e e t from Sunday, ~ i l s o n and t h e M i t c h e l l s .

Kenneth McLean g o t o u t of t h e p i c k u p c a r r y i n g a .308 c a l i b e r b o l t action revolver. H i s wife got out carrying a . 3 8 c a l i b e r revolver. Sunday dismounted from h i s h o r s e h o l d i n g a 30.30 c a l i b e r r i f l e . Wilson t e s t i f i e d Sunday a s k e d Wilson i f h e wanted t h e p r i v i l e g e o f s h o o t i n g t h e McLeans. Wilson had a 22.250 c a l i b e r b o l t a c t i o n r i f l e , and M i t c h e l l had a -410 gauge s i n g l e s h o t shotgun.

A s Kenneth McLean approached, h e s a i d I m W h a tt h e God damn h e l l i s g o i n g on? What k i n d of prank i s t h i s ? Give u s o u r h o r s e s , o r we w i l l s h o o t you." M r s . McLean added, "Your God damn r i g h t we w i l l . " Immediately a f t e r h i s t h r e a t , McLean o p e r a t e d t h e b o l t mechanism t o h i s gun and i n s e r t e d a c a r t r i d g e . According t o Sunday, Kenneth McLean p o i n t e d t h e gun d i r e c t l y a t Sunday. Wilson and M i t c h e l l t e s t i f i e d t h e gun was p o i n t e d a t t h e ground.

A shooting s p r e e followed. Sunday s h o t Kenneth McLean i n the leg. Then, Marion McLean began s h o o t i n g a t Sunday. Sunday r e t u r n e d t h e f i r e h i t t i n g Marion McLean i n h e r abdomen and t h o r a c i c a r e a . Sunday n e x t approached Marion McLean. N o t i c i n g Kenneth McLean r i s e from t h e ground, Sunday t u r n e d and f i r e d two f a t a l s h o t s a t Kenneth McLean. Meanwhile, Wilson who was a p p r o a c h i n g Kenneth McLean n o t i c e d Marion McLean rise. Wilson s h o t Marion McLean i n t h e head k i l l i n g h e r instantly.

Sunday t h e n t o o k $ 2 5 from Kenneth McLean's w a l l e t . Wilson t o o k a p p r o x i m a t e l y $100 from Marion McLean. Sunday, ~ i l s o n and M i t c h e l l p i c k e d up t h e McLeans' weapons and l e f t t h e a r e a i n t h e McLeans' p i c k u p . They w e r e e v e n t u a l l y a r r e s t e d i n Oregon.

On September 2 6 , 1977, Sunday was c h a r g e d i n an amended i n f o r m a t i o n w i t h two c o u n t s of d e l i b e r a t e homicide, two c o u n t s o f f e l o n y t h e f t and one c o u n t of b u r g l a r y .

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In October 1977, Sunday gave notice of his intent to rely on self-defense. On January 9, 1978, Sunday moved for a change of venue. The motion was denied on April 12, 1975, on the ground any possible prejudice was "speculation at this point." On July 6, 1972, Sunday xcved :r o permission to conduct individual voir dire of the prospective jurors. The motion was denied, but the District Court said the motion might be renewed during voir dire if necessary. Sunday renewed the motion during voir dire with respect to one prospective juror, Mrs. Garrett. The District Court again denied the motion saying it would guide Mrs. Garrett. Sunday passed the panel without challenging Mrs. Garrett for cause. Later, both the State and Sunday exercised all eight of their preemptory challenges. In July 1978, a jury verdict was rendered finding Sunday guilty of all the charges. Sunday was sentenced to a total of 240 years in the state penitentiary. Sunday presents eleven issues for review. These issues may be grouped as follows: 1. Whether it was error to deny Sunday's motions for change of venue and individual voir dire of jurors. 2. Whether the State failed to prove the crimes charged against Sunday; 3. Whether the District Court failed to properly instruct the jury; and 4. Whether the sentences imposed on Sunday were erroneous. -- ISSUE NO. 1: Change of Venue and Individual Voir Dire. Sunday contends it was error to deny his motions for change of venue and individual voir dire. The contention

is without merit. -4-

A denial of a motion for change of venue or a motion for individual voir dire will be reversed only upon a showing of an abuse of discretion. State v. Olson (1971), 156 Mont. 339, 480 P.2d 822. Sunday has not made such a showing. A change of venue must be based on more than an affiant's

unsupported opinions and the mere fact of pretrial publicity. The published accounts must be so passionate as to excite undue prejudice, to the extent of rendering it impossible for the accused to have a jury free from prejudice. State v. Corliss (1967), 150 Mont. 40, 49, 430 P.2d 632, 637. Sunday's motion for change of venue was not adequately supported. The motion was supported by the single affidavit of defense counsel. The affidavit stated defense counsel believed Sunday could not receive a fair trial due to inflammatory county-wide publicity. The affidavit was unsupported by any evidence of the number or inflammatory nature of the publications. Also, Sunday never renewed his motion for a change of venue at any time during or after jury selection. Sunday also did not adequately support his motion for individual voir dire. Sunday never demonstrated the extent of the pretrial publicity, its inflammatory nature or whether it had any prejudicial effect on the prospective jurors. Moreover, Sunday passed the jury panel, including Mrs. Garrett, the main object of Sunday's concern, without challenging any potential juror for cause due to bias or prejudice. See,

section 46-16-304 ( 2 ) (j), MCA. -- ISSUE NO. 2: Failure to Prove the Crimes Charged. Sunday maintains the State failed to prove Sunday committed burglary since the tack shed is not an "occupied structure" as required by section 45-6-204, MCA. A fundamental rule of statutory construction is the intent of the legislature controls. Dodd v. City of East -5-

Helena (1979), - Mont. - 591 P.2d 241, 243, 36 St.Rep. , 414, 417. In construing legislative intent, this Court construes criminal statutes according to the fair import of their terms with a view to effect their object and to promote justice. State v. Shannon (19761, 171 Mont. 25, 28, 554 P.2d 743, 744. The intent of the burglary statute was to prohibit wrongful intrusions into those places where the threat to people was most alarming. State v. Shannon, supra. Thus, in defining "occupied structure", the legislature included those places where the chance of human confrontation was most likely, in those places suitable "for human occupancy or night lodging" and "for carrying on business." Section 45- 2-101 (34), MCA. The McLeans' tack shed was a structure suitable for carrying on business and was so used by the McLeans. The McLeans operated a horse rental business. Horse tack was an integral part of that business, and the horse tack was stored in the tack shed. Moreover, both the guests and employees of the Evergreen Resort would enter the shed frequently and a: irregular hours. i Count V of the amended information charged Sunday with the felony theft of (1) a 1966 International pickup truck, (2) a .308 caliber rifle, (3) a .38 caliber Smith and Wesson pistol, (4) a gunbelt and holster, and, (5) $150 in cash. Sunday contends the State failed to prove the value of the personalty listed in count V exceeded $150 as is required by section 45-6-301, MCA, the theft statute. We agree. Under our felony theft statute, the State must prove beyond a reasonable doubt that the value of the personalty allegedly taken exceeds $150. At trial, the only value testimony was given by Sunday and Mitchell and related to -6-

the amount of cash taken from the McLeans. Sunday testified he took $20 to $25 from Kenneth McLean's wallet. Mitchell testified Wilson took about $100 from Marion McLean's purse. The State asserts Sunday waived any objection to the State's failure to prove value by not raising the issue prior to the entry of the judgment of conviction. The State's assertion is without merit, Under the facts here, value is an essential element of the crime charged, and such an error may be raised at any time. The State next asks this Court to take judicial notice of the fact that the aggregate value of the personalty involved here is greater than $150. We will not do this. Rule 201(b)! M.R.Evid., sets forth the kinds of facts which may be judicially noticed. That provision reads as follows: . ". . A fact to be judicially noticed must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." We will not go beyond the scope of this provision and take judicial notice of a basic element of the crime charged not otherwise proved. It is also noteworthy that the jury was not properly instructed as to value. None of the instructions concerning felony theft mentioned that a value greater than $150 is necessary for a felony theft conviction. Thus, the jury reached its decision on the felony theft charge without even considering a fundamental element of the crime charged. We

will not presume the jury knew about this element of felony theft. Sunday next contends the convictions for the deliberate homicides of Kenneth and Marion McLean are not supported by -7-

the evidence. More specifically, Sunday maintains the evidence establishes the homicides were justified, or at most, Sunday could be convicted of mitigated deliberate homicide. Whether Sunday was justified in killing the McLeans and whether Sunday acted under extreme emotional distress were questions of fact for the jury. State v. Larson (1978), Mon t . , 574 P.2d 266, 269, 35 St.Rep. 69, 73. Upon appeal, this Court will not substitute its judgment for that of the jury if the verdict is supported by substantial evidence. The evidence must be viewed in a light most favorable to the I I . ,, State. State v. McGuinn (1978), Mont. , 581 P.2d 417, 419, 35 St-Rep. 871, 872. The verdicts of deliberate homicide are supported by substantial evidence which if believed by the jury would result in convictions for deliberate homicide. Both Wilson and Mitchell testified Kenneth McLean did not point his rifle at Sunday. In addition, Wilson testified Sunday asked Wilson if he wanted the privilege of shooting the McLeans. Sunday's own testimony corroborates the sequence of events as described by Wilson and Mitchell. Sunday also contends the evidence clearly shows Wilson's actions were the sole intervening cause of Marion McLean's death. Therefore, according to Sunday, it was error to submit count I1 of the amended information, the deliberate homicide of Marion McLean, to the jury. We do not agree. Sunday shot Marion McLean in her abdomen and thoracic area. Shortly thereafter, Wilson shot Marion McLean in the head killing her instantly. A pathologist testified the wound inflicted by Sunday would have caused Marion McLean's death within minutes had she not been shot by Wilson. -8-

The principal end of the law of homicide is to protect human life by preventing behavior which can cause death. The evidence adduced at trial clearly shows Sunday engaged in conduct which was likely to cause the death of a human being. Moreover, Sunday's situation would be no different if Marion McLean had been struck by a bolt of lightning rather than shot in the head by Wilson. ISSUE NO. 3: - - Instructional Error. Court's instruction no. 16 reads as follows: "You are instructed that a criminal homicide is deliberate homicide if: " (1) It is committed purposely or knowingly; or " (2) It is committed while the offender is engaged in flight after committing or attempting to commit burglary or any other felony which involves the use or threat of physical force or violence against any individual." Sunday contends it was error to give the second part of the instruction concerning the felony-murder rule. According to Sunday, he was not charged under the felony- murder rule, there are no facts supporting the application of the rule, and even assuming proof of a felonious act, there was no showing of a connection between it and the McLeans' death. Sunday's contention is without merit. The evidence establishes that Sunday caused the McLeans' death while in flight after committing a burglary. Court's instruction no. 16 paraphrases section 45-5-102, MCA, the statute defining deliberate homicide. That statute specifically covers criminal homicides committed while in flight after committing a burglary. The connection between Sunday's felonious act and the McLeans' death was decided by the jury. Ashas stated in Commonwealth v. Almeida (Pa. 1949), 68 A.2d

. ". . There can be no doubt about the 'justice' of holding that felon guilty of murder in the first degree who engages in a robbery or burglary and thereby inevitably calls into action defense forces against him, the activity of which forces result in the death of a human being." Additionally, at trial, Sunday did not require the State to specify which theory of deliberate homicide the State was following. Nor did Sunday object to the court's instruction no. 16 on the grounds now asserted upon appeal. This Court will not reverse the District Court's rulings on the instructions on grounds not raised at the time the instruction was proposed. State v. Campbell (1965), 146 Mont. 251, 263, 405 P.2d 978,

Sunday next contends the jury was incorrectly and in- completely instructed on the affirmative defense of self-defense. In this regard, Sunday asserts the court's instructions (1) failed to explain self-defense as a concept of fear to be judged in light of appearances and (2) failed to explain Sunday had no duty to retreat. In considering this issue, we will first set out the relevant law applicable to the concept of self-defense. A person is justified in the use of force likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself or another or to prevent the commission of a forcible felony. Section 45-3-102, MCA. Self-defense is to be judged in terms of the apparent danger which the defendant perceived, as a reasonable person, rather than in terms of the danger actually confronting him. The belief in the necessity of using force must be reasonable, but even a mistaken belief may be reasonable. State v. Reiner (1978), Mont . , 587 P.2d 950, 956, 35 St.Rep. ISGl, 1867, 1869. A defendant may stand his ground even if he reasonably believes he is in imminent danger of great bodily harm. See State v. Porter (1964), 143 Mont. 528, 391 P.2d 704. -10-

Sunday cannot complain if these concepts were conveyed to the jury by the District Court in the body of its instructions. If so, Sunday was given ample opportunity to present his theory of defense to the jury. State v. Collins (1978), - Mont. , 582 P.2d 1179, 35 St.Rep. 993. We find such is the case here. The jury was instructed that self-defense was a concept of fear to be judged in light of appearances even if those appearances were false. Court's instruction no. 27 and 31 directed the jury to consider whether Sunday "reasonably believed" that force by him was necessary. These instructions do not say that reasonable belief must be founded upon subjective appearances or the danger actually confronting Sunday. State v. Reiner, supra. Similarly, instructions, like court's instructions no. 27 and 31, which state the general law of self-defense adequately cover, Montana's "no retreat" rule. State v. Porter, supra. District Court's instruction no. 28 instructed the jury that Sunday had the burden of producing sufficient evidence to raise a reasonable doubt of his guilt in order to avail himself of the affirmative defense of self-defense. Sunday maintains it was error to give this instruction. We do not agree. Sunday contends the instruction is misleading and confusing when compared with court's instruction no. 17 which instructed the jury that the State had the burden of proving lack of justification. Sunday is barred from asserting this upon appeal as a ground for reversible error. This was not a ground of his objection at trial. State v. Campbell, supra. Sunday next asserts that court's instruction no. 28 is an

incorrect statement of the law. The assertion is without merit. In Montana, the defendant must present some evidence of self-defense in order to raise it as an issue unless the State's -11-

evidence puts self-defense in issue. State v. Cooper (1979), Mont. 589 P.2d 133, 3 6 St.Rep. 30. At trial, Wilson and Mitchell, both witnesses for the State, testified Kenneth McLean did not point his gun at Sunday. Wilson also testified that Sunday asked Wilson if he wanted the privilege of shooting the McLeans. The State did not raise the issue of self-defense by showing the totality of the circumstances surrounding the homicides including evidence which negates the application of self-defense. Finally, Sunday contends court's instruction no. 28 unconstitutionally shifted the burden of proving self-defense to Sunday. It did not. The absence of justification is not an element of deliberate homicide, and proving lack of justifi- cation does not serve to negate any of the facts which the State must prove beyond a reasonable doubt in order to support a conviction of deliberate homicide. Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 ~.Ed.2d 281; State v. Cooper, supra. Court's instruction no. 22 reads: "You are instructed that purpose or knowledge are manifested by circumstances connected with the offense. Purpose or knowledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence." Sunday maintains this instruction and court's instruction no. 23, "You are instructed that the law presumes that a person intends the ordinary consequences of his voluntary acts", are reversible error under Sandstrom v. Montana (1979), - U.S. I

99 S.Ct. 2450, 61 L.Ed.2d 39. We do not agree. Court's instruction no. 22 is a permissive inference. It allows, but does not require, the jury to infer ultimate facts from basic ,factsadduced by the State. No burden of proof is placed on Sunday. County Court of Ulster Cty. v. Allen (19791, - U.S. , 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792; State v. Coleman (1979), -i l

Mont./ -P.2d , 36 St.Rep. 2237. -12-

Since a permissive inference is involved, Sunday must show the invalidity of the inference as applied to him. Sunday must show there is no rational way under the facts of this cause for the jury to make the connection permitted by the inference. Only then is there a risk the presumptively rational jury will use the inference to make an erroneous factual determination. County Court of Ulster Cty. v. Allen, supra. Sunday has not carried his burden upon appeal. Similarly, it was not prejudicial error to give court's instruction no. 23. The homicide charges against Sunday were submitted to the jury in the disjunctive, as a deliberate homicide or as a felony-murder case. Under either theory, Sandstrom v. Montana, supra, is not controlling. A person is guilty of deliberate homicide if it is committed "purposely" or "knowingly." Section 45-5-102, MCA. A person acts "purposely" with regard to any offense if it is his con- scious object (1) to engage in that conduct defined as the offense or (2) to cause a result which is the offense. Section 45-2-101(52), MCA. Applying this definition of purpose to this cause, if the jury found that Sunday consciously sought to kill or consciously conducted himself to cause a death as a result of his cQnd~ct,the elements of intent and act are merged in his conduct once purpose is shown. Thus, under the

criminal code, proof that the defendant acted "purposely" is sufficient proof that he acted "knowingly". Section 45-2-102, MCA . A person is shown to have acted "knowingly" with respect to dsliberate homicide upon proof of either of two mental elements: (1) when he is aware of his conduct which constitutes an offense; or, (2) when he is aware that it is highly probable that a death of a human being will be the result of his conduct.

Section 45-2-101(27), MCA. As we noted in State v. Coleman, 36 St-Rep. at 2242, it is his awareness either of his conduct

or the highly probable result of his conduct that must be proved beyond a reasonable doubt to establish his "knowledge" as a mental element of the crime. But we repeat, if purpose is shown beyond a reasonable doubt, knowledge is thereby established under the code. Therefore, in simplest terms, the burden of the State here under the charge of deliberate homicide was to prove Sunday by a voluntary act caused the death of a human being while having the mental state described as "purposely" or "knowingly". Those are the material elements of a deliberate homicide under the Montana Criminal Code of 1973. Here, the State proved beyond a reasonable doubt that Sunday purposely shot the McLeans. Sunday testified he fired the first shot at Kenneth McLean. In fact, it was not shown that Kenneth McLean even fired a shot. True, Sunday contends he acted purposely but that he was justified in defending himself. However, by Sunday's own admission, it was Sunday's conscious object to shoot the McLeans or to cause that result. Section 45-2-101(52), MCA. Therefore, the jury was never called upon to decide as an issue of fact whether Sunday acted purposely or knowingly to cause the death of a human being. Sunday's own testimony admitted that. Rather, the issue became whether Sunday's purposeful act was a justified use of force, self-defense. Section 45- 3-102, MCA. Court's instruction no. 23 was therefore superfluous. Sunday intended by his conduct to do the McLeans grave bodily harm. That was the ordinary consequence of his voluntary acts. The objected to instruction did not relate to a material issue in the cause hnds0at most, was harmless error. Such error is not

cause for reversal. Section 46-20-701, MCA. We are aware of the apparently conflicting opinion of the Court where self-defense is an issue, and the ~andstrom -14-

instruction is involved, in Holloway v. McElroy (D.Ga. 1979), 474 F.Supp. 1363, 1368. The rationale of that Court is not explained. We find in this case that self-defense admits a purposeful act, but claims the purposeful act was justified. Likewise, court's instruction no. 23 was not prejudicial error under the felony-murder theory submitted to the jury. The felony-murder rule is embodied in the definition of deliberate homicide in the Montana Criminal Code of 1973. Section 45-5-102, MCA. Intent as such is not an element under the felony-murder rule. The felony-murder statute requires proof of the following combination of elements: 1. The intent to commit a felony, burglary here; 2. An unintentional death caused by the attempt, per- petration or attempted escape of a felon; and 3. The death must be an outgrowth of the felony itself and related to the burglary by an unbroken chain of causation. - Bassiouni, Substantive Criminal Law (1978), at 250, 251. Earlier in this opinion, we affirmed the charge of burglary against Sunday. His intent to commit the burglary was proven by direct evidence and by Sunday's own admissions. Therefore, "purpose" as an element of that crime was established. Intent was no longer an issue under the felony-murder statute once it was shown by the evidence that Sunday committed a burglary and Sunday killed the McLeans while in flight after the commission of the burglary. It was the commission of the burglary which gave rise to the dangerous circumstances which invited the McLeans' deaths. The intent to commit the burglary was a sufficiently supplied intent for all the consequences including the homicides arising therefrom. Bassiouni, supra, at 247. If the jury applied the felony-murder theory here, the

court's instruction no. 23 was superfluous because the jury -15-

had no i s s u e of i n t e n t t o d e c i d e . I n t e n t was n o t an e l e m e n t o f t h e d e l i b e r a t e h o m i c i d e s , and i n t e n t was n o t an i s s u e b e f o r e t h e jury. The i n s t r u c t i o n p l a y e d no p a r t i n t h e j u r y ' s d e l i b e r a t i o n s a s t o t h e d e l i b e r a t e homicides.

ISSUE NO. 4 : -- Sentences.

Upon h i s c o n v i c t i o n s , Sunday was s e n t e n c e d t o s e r v e 1 0 0 y e a r s f o r e a c h c o u n t o f d e l i b e r a t e homicide, 1 0 y e a r s f o r e a c h t h e f t c o u n t and 20 y e a r s f o r b u r g l a r y . The t e r m s are t o b e s e r v e d c o n s e c u t i v e l y , 240 y e a r s t o t a l , and Sunday i s i n e l i g i b l e f o r p a r o l e o r p a r t i c i p a t i o n i n t h e work f u r l o u g h program.

Wilsonpleded g u i l t y t o two c o u n t s o f d e l i b e r a t e homicide and t o two c o u n t s o f t h e f t . He r e c e i v e d a s e n t e n c e of 100 y e a r s f o r e a c h d e l i b e r a t e homicide c o u n t and 10 y e a r s on e a c h t h e f t count. The s e n t e n c e s a r e t o b e s e r v e d c o n c u r r e n t l y , and w h i l e t h e c o u n t y a t t o r n e y w i l l n o t recommend p a r o l e , h e

w i l l n o t f i g h t Wilson's parole. Sunday c o n t e n d s t h e D i s t r i c t C o u r t d i d n o t have t h e

a u t h o r i t y t o impose a 20 y e a r s e n t e n c e f o r b u r g l a r y . As for t h e o t h e r s e n t e n c e s , Sunday a s s e r t s t h e y a r e u n c o n s c i o n a b l e and u n j u s t i f i e d when compared t o t h e s e n t e n c e s r e c e i v e d by Wilson who w a s e q u a l l y g u i l t y .

W e a g r e e t h e D i s t r i c t C o u r t d i d n o t have t h e a u t h o r i t y t o s e n t e n c e Sunday t o 20 y e a r s f o r b u r g l a r y . By s t a t u t e , the maximum p o s s i b l e s e n t e n c e f o r b u r g l a r y i s 1 0 y e a r s i n t h e s t a t e penitentiary. S e c t i o n 45-6-204, MCA. Accordingly, under s e c t i o n 46-20-703, MCA, w e r e d u c e Sunday's s e n t e n c e f o r b u r g l a r y t o 10 y e a r s i n t h e s t a t e p e n i t e n t i a r y w i t h t h e o t h e r p r o v i s i o n s o f t h e s e n t e n c e t o remain unchanged.

Likewise, a l s o under s e c t i o n 46-20-703, MCA, w e r e v e r s e t h e 10 y e a r s e n t e n c e Sunday r e c e i v e d upon h i s c o n v i c t i o n f o r f e l o n y t h e f t a s c h a r g e d i n c o u n t V o f t h e amended i n f o r m a t i o n . The S t a t e f a i l e d t o p r o v e an e s s e n t i a l e l e m e n t o f f e l o n y t h e f t i n c o u n t V t h a t t h e p r o p e r t y t a k e n exceeded $150 i n v a l u e .

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With regard to the terms of the other sentences imposed upon Sunday, we find the District Court did not abuse its discretion. All the other sentences are within the maximum allowed by law for each offense. Similarly, the other provisions of the sentence, no parole and no work furlough, are also proper under the applicable statute. Section 46- 18-202, MCA. The District Court determined that the restrictions were necessary for the protection of society because of Sunday's extensive criminal record, his uncaring attitude and the malevolent way in which he killed the McLeans. This Court will not second guess the trial judge, who after observing the demeanor and attitude of the defendant, uses his discretion in fixing punishment. Matter of Jones (1978), Mont. , 578 P.2d 1150, 1155, 35 St.Rep.

Accordingly, Sunday's conviction for felony theft as charged in count V of the amended information and the sentence imposed thereon are reversed. The count V felony theft charge is dismissed. The twenty year sentence for burglary is reduced to ten years in the state penitentiary to be served under the other conditions laid down by the District Court. The burglary conviction is otherwise affirmed. Sunday's other convictions and the sentences imposed thereon are affirmed.

We Concur:

Chief Justice u Justices

Mr. Justice Daniel J. Shea dissents and will file a written dissent later. - 17 -

No. 14591

S T A T E O F MONTANA,

P l a i n t i f f and r e s p o n d e n t ,

VS . ANDREW C . SUNDAY,

Defendant and a p p e l l a n t .

D I S S E N T O F MR. J U S T I C E D A N I E L J . SHEA: PPrTCp.~\

j ' - - , , ,- I.' I ., ,L, .. Dated: May 5, 1980 p - 4: 6 j 7

c i - . I . _ . 3

&&:I-., - - , . , '.. ' E L ' , , -* - .. - , , ." - -.. . - * r , * . ?;

Mr. J u s t i c e D a n i e l J. Shea d i s s e n t i n g :

F o r a number of r e a s o n s , t h e felony-murder i n s t r u c t i o n g i v e n i n t h i s c a s e was improper. Hence, I would r e v e r s e t h e homicide c o n v i c t i o n s and o r d e r a new t r i a l . I would, moreover, r e v e r s e and d i s m i s s t h e b u r g l a r y c o n v i c t i o n b e c a u s e

t h e t a c k shed was n o t a n "occupied s t r u c t u r e " ~ ~ i t h t h e i n

meaning of t h e s t a t u t e . With r e l a t i o n t o c o u n t I11 o f t h e t h e f t c h a r g e s , I would r e a c h t h e s a m e r e s u l t t h e r e as w a s r e a c h e d by t h e m a j o r i t y i n r e l a t i o n t o c o u n t V o f t h e t h e f t c h a r g e s , t h e r e b y r e v e r s i n g and d i s m i s s i n g e a c h t h e f t c h a r g e f o r f a i l u r e t o p r o v e and i n s t r u c t upon a n e s s e n t i a l e l e m e n t .

-- THE FELONY-THEFT CHARGES AND THE MAJORITY DISPOSITION

Defendant was c h a r g e d w i t h two c o u n t s of f e l o n g t h e f t - -c o u n t s I11 and V. Count I11 c h a r g e d t h e f t of p e r s o n a l p r o p e r t y t a k e n from t h e McLean r a n c h . T h i s c h a r g e i n c l u d e d t h e f t of t h r e e r i f l e s , two s h o t g u n s , and t h r e e h o r s e s . Count V c h a r g e d t h e f t o f p e r s o n a l p r o p e r t y a f t e r t h e commission o f t h e homicides. This charge included t h e f t of a pickup t r u c k , a p i s t o l , a r i f l e , a woman's p u r s e , and $150 i n c a s h . As the majority h a s s t a t e d , t h e r e was no d i r e c t e v i d e n c e p r e s e n t e d on t h e v a l u e o f t h e i t e m s and t h e t r i a l c o u r t t o t a l l y f a i l e d t o i n s t r u c t t h e jury t h a t value i s an element of t h e offense.

I n t h i s appeal, defendant a t t a c k e d only count V, contending t h a t v a l u e was n o t proved. In r e l a t i o n t o t h i s contention, t h e m a j o r i t y held t h a t value i s an e s s e n t i a l element of t h e o f f e n s e o f t h e f t and t h a t t h i s C o u r t w i l l n o t t a k e j u d i c i a l n o t i c e of v a l u e b e c a u s e i t i s an e s s e n t i a l e l e m e n t t o b e

proved. With t h i s I a g r e e . Accordingly, t h e m a j o r i t y reversed ea t h e c o n v i c t i o n on Count V and o r d e r 7 t h e c h a r g e d i s m i s s e d . With

t h i s I a l s o agree. I f a i l t o understand, however, why, on t h e s a m e b a s i s , t h e m a j o r i t y d i d n o t a l s o o r d e r r e v e r s a l and

-18-d i s m i s s a l of t h e t h e f t c o n v i c t i o n o n c o u n t 111. The same law a p p l i e s t o e a c h c o u n t , and t h e S t a t e f a i l e d t o p r o v e v a l u e and t h e j u r y w a s n o t i n s t r u c t e d t h e v a l u e w a s an e s s e n t i a l e l e m e n t t o be proved w i t h r e l a t i o n t o e a c h c o u n t of t h e f t . How, under t h e s e c i r c u m s t a n c e s , can a r e v e r s a l and d i s m i s s a l be o r d e r e d on c o u n t V and a n a f f i r m a n c e be d e r d w i t h r e l a t i o n t o count I I I ? Although t h e d e f e n d a n t d i d n o t r a i s e any i s s u e w i t h r e l a t i o n t o c o u n t 111, t h i s C o u r t , under t h e p l a i n e r r o r d o c t r i n e , c a n r e a c h t h e same r e s u l t w i t h r e l a t i o n t o c o u n t I11 a s i t h a s r e a c h e d w i t h r e l a t i o n t o c o u n t V.

Based on t h e m a j o r i t y r a t i o n a l e t h a t v a l u e i s an e s s e n t i a l e l e m e n t o f t h e c r i m e which must be proved beyond a r e a s o n a b l e d o u b t , and t h a t w e w i l l n o t t a k e j u d i c i a l n o t i c e of t h e v a l u e o f t h e i t e m s i n v o l v e d i n o r d e r t o uphold a c o n v i c t i o n , I would a l s o r e v e r s e and d i s m i s s t h e t h e f t c o n v i c t i o n under c o u n t 111.

BURGLARY--THE - - -A NOT AN OCCUPIED STRUCTURE W I T H I N T C SHED W - - AK S

THE MEANING O - BURGLARY STATUTE - F - THE There are s e v e r a l r e a s o n s why t h e felony-murder r u l e

h a s no a p p l i c a t i o n t o t h e f a c t s of t h i s c a s e . As a starter, t h e t a c k s h e d w a s n o t a n o c c u p i e d s t r u c t u r e w i t h i n t h e meaning of t h e burglary s t a t u t e . Obviously, however, s i n c e t h e majority declares t h a t t h e underlying felony f o r application of t h e felony-murder r u l e i s b u r g l a r y , it i s n e c e s s a r y t h a t i t d e c l a r e t h e t a c k s h e d t o b e an o c c u p i e d s t r u c t u r e . Absent t h i s h o l d i n g , t h e felony-murder r u l e as a p p l i e d h e r e , would come t u m b l i n g down l i k e a house of c a r d s . Thus t h e m a j o r i t y h a s k i l l e d two b i r d s w i t h one s t o n e h e r e . By d e c l a r i n g t h e t a c k s h e d t o be a n o c c u p i e d s t r u c t u r e , i t h a s a f f i r m e d t h e u n d e r l y i n g b u r g l a r y c o n v i c t i o n , and a l s o s e t t h e s t a g e f o r

-19-a p p l i c a t i o n o f t h e felony-murder r u l e . This is a c l e a r d e m o n s t r a t i o n o f what happens when an a p p e l l a t e c o u r t i s r e s u l t oriented--the law i s c r e a t e d o r expanded t o f i t t h e

facts. The b u r g l a r y s t a t u t e , s e c t i o n 45-6-204(1), MCA, p r o v i d e s

that: "[A] p e r s o n commits t h e o f f e n s e o f b u r g l a r y i f h e knowingly e n t e r s o r remains u n l a w f u l l y i n an o c c u p i e d s t r u c t u r e w i t h t h e p u r p o s e t o commit an o f f e n s e t h e r e i n . " (Emphasis added.) The t r i a l c o u r t i n s t r u c t e d t h e j u r y t h a t one of t h e e s s e n t i a l e l e m e n t s f o r t h e c r i m e of b u r g l a r y which must be proved beyond a r e a s o n a b l e d o u b t i s t h a t t h e s t r u c t u r e i n v o l v e d must have been a n " o c c u p i e d s t r u c t u r e . " ( I n s t r u c t i o n s 1 2 and 13.) By i n s t r u c t i o n 1 3 , t h e t r 2 a l c o u r t t o l d t h e j u r y t h a t t h e f i r s t of two e l e m e n t s which must be proved beyond a r e a s o n -a b l e d o u b t i s " t h a t the d e f e n d a n t knowingly and u n l a w f u l l y e n t e r e d o r remained u n l a w f u l l y w i t h i n a n o c c u p i e d s t r u c t u r e . " "Occupied s t r u c t u r e " was a l s o d e f i n e d f o r t h e j u r y (instruction 1 4 , t h e s t a t u t o r y d e f i n i t i o n contained i n s e c t i o n 45-2-lOl(34)):

"You a r e i n s t r u c t e d t h a t " o c c u p i e d s t r u c t u r e " means any b u i l d i n g , v e h i c l e , o r o t h e r p l a c e s u i t e d f o r human occupancy o r n i g h t l o d g i n g o r p e r s o n s o r f o r c a r r y i n g on b u s i n e s s whether o r not a person i s a c t u a l l y p r e s e n t . Each u n i t of a b u i l d i n g c o n s i s t i n g of two o r more u n i t s s e p a r a t e l y secured o r occupied is a s e p a r a t e occupied s t r u c t u r e . " (Emphasis added.)

The m a j o r i t y h a s s e i z e d upon t h e emphasized language of t h i s i n s t r u c t i o n and d e c l a r e d t h a t t h e t a c k shed i s " s u i t e d . . . f o r c a r r y i n g on b u s i n e s s . " The t a c k s h e d h e r e i s e i g h t f e e t by twenty f e e t and i s made o u t of rough lumber. Inside t h e s h e d t h e r e are n a i l s and pegs f o r hanging h o r s e t a c k , b u t t h e r e a r e no l i v i n g f a c i l i t i e s . The t a c k s h e d was used exclusively f o r s t o r i n g horse tack. Entry t o t h e t a c k shed was made i n t h e v e r y e a r l y morning h o u r s o f Sunday, September 5 , 1977. There w e r e no human b e i n g s t h e n i n s i d e t h e t a c k shed.

The declaration that the tack shed was suitable for carrying on business goes beyond the intent of the criminal law commission, which, of course, drafted the statutes in- volved before they were presented to the legislature. The Revised Criminal Law Commission Comment states: "The core of common law concept of burglary was breaking and entering a dwelling house at night with intent to commit a felony therein. The scope of the offense has enlarged until under prevailing law, the offense may be com mitted by entry alone, in day time as well as by night, in any building, structure, or 'vehicle.'" "In this code, the 'occupied structure' is narrowly defined to include buildings where people can live or work and where intrusions are most alarming and dangerous. For example, the definition -- include barns, or abandoned buildings does not unsuited - human occupancy. In the case of a for mine or ship, for example, fitness for occupancy would have to be proved. 'Entering or remaining unlawfully' is a concept which takes a middle ground between prevailing law which requires a breaking and its complete elimination in some modern legislation." (Emphasis added.) There is nothing in the legislative record to indicate any construction beyond that given to it by the Criminal Law Commission. By its decision here, however, this Court has declared that any barn into which a human may venture, regardless of whether or not it is then occupied, is, within the meaning of the burglary statute, an occupied structure. This is an unwarranted statutory extension. Before the trial of this case, defense counsel moved to dismiss the burglary charge because the tack shed was not an occupied structure within the meaning of the burglary statute.

The prosecutor /vigorously resisted dismissal of the burglary charge and the defense motion was denied. Thus the case went to trial with defendant facing a burglary charge. Neither he nor defense counsel had the wildest dream, however, that as a result of this burglary charge, the prosecution would inject another theory of homicide into the case by-offering a felony- murder instruction at the end of the case. Because the tack shed was not an occupied structure within the meaning of the burglary statute, the burglary conviction must be reversed and dismissed.

- PERMITTING THE FELONY-MURDER INSTRUCTION - STAND UNDER IN TO THE FACTS-OF- - THIS CASE, THE MAJORITY HAS IGNORED SOME - FUNDAMENTAL RULES OF CRIMINAL PROCEDURE Vital to a charge of felony-murder is the fundamental requirement that it be charged if the prosecution expects a conviction on that theory. Defendant was not charged with felony-murder--it is that simple. He was charged in count I with "purposely or knowingly" killing Kenneth L. McLean, and he was charged in count I1 with "purposely or knowingly" killing Marion McLean. The deliberate homicide statute (section 45-5-102, MCA) reads as follows: " (1) Except as provided in 45-5-103 (1), criminal homicide constitutes deliberate homicide if: "(a) it is committed purposely or knowingly; or - "(b) it is committed while the offender is engaged in or is an accomplice in the commission of, an attempt to commit, or flight after com- mitting or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnapping, felonious esccape, or any other felony which involves the use or threat or physical force or violence against any individual." (Emphasis added. )

By the clear wording of the statute, deliberate homicide can be committed in eit3x.r of two ways. Under subsection (l)(a), by "purposely or knowingly" killing the victim. Under subsection (l)(b), by commiting an underlying felony which triggers application of the felony murder rule. The State, however, did not charge the defendant under both theories. Count I related to the killing of Kenneth L. McLean, and the charging part of the information alleged that the defendant: ". ..committed the offense of DELIBERATE HOMICIDE, a felony in that [he] purposely or knowingly caused the death of Lemul Kenneth E ~ e a n shooting him with a firearm . . ." by (Emphasis added. ) And count I1 related to the death of Marion McLean. The charging part of the information alleged that the defendant: ". . . committed the offense of DELIBERATE HOMICIDE, a felony, in that [he] purposely or knowingly caused the death of MARION McLEAN by shooting her with a firearm. . ." (Emphasis added. ) Needless to say these charges do not allege facts which would permit invocation of the felony-murder rule. Nor is

there any indication by the charges that the prosecutor would rely on the felony-murder rule as an alternative theory of his case. Defendant pleaded not guilty to counts I and 11, he went to trial defending on those charges as specified, and the trial itself was conducted on the basis of those charges. It is fundamentally unfair to add an additional theory at the end of the trial by offering an instruction containing the felony-murder rule. That is precisely what the prosecutor did in this case. - PROCEDURAL ERROR - PERMITTING THE FELONY-MURDER INSTRUCTION IN TO - - STAND Assuming an evidentiary basis for application of the felony-murder rule, there is no doubt that the State had the

r i g h t t o c h a r g e t h e d e f e n d a n t a l t e r n a t i v e l y and t o go t o t h e j u r y on a l t e r n a t i v e c h a r g e s o r t h e o r i e s . S e c t i o n 46-1 1 - 4 0 4 (1), MCA, p r o v i d e s i n p a r t :

"An ... information . . . may c h a r g e . . . d i f f e r e n t s t a t e m e n t s of t h e s a m e o f f e n s e ... under s e p a r a t e c o u n t s . . . . The p r o s e c u t i o n i s n o t r e q u i r e d t o e l e c t between t h e d i f f e r e n t offenses o r counts set f o r t h i n t h e .. . information .. . It

It is clear, therefore, t h a t a l t h o u g h t h e r e would be b u t one o f f e n s e i n r e l a t i o n t o t h e d e a t h of e a c h p e r s o n , a j u r y c o u l d have r e t u r n e d a v e r d i c t f i n d i n g d e f e n d a n t g u i l t y under t h e " p u r p o s e l y o r knowingly" t h e o r y o r under t h e f e l o n y -murder t h e o r y , o r under b o t h t h e o r i e s .

But t h e c r u c i a l i s s u e h e r e i s t h a t t h e S t a t e had no r i g h t t o p r e s e n t b o t h t h e o r i e s t o t h e j u r y i n t h e a b s e n c e of c h a r g e s i n i t i a l l y i n f o r m i n g t h e d e f e n d a n t t h a t h e was charged under b o t h t h e o r i e s . I f t h e S t a t e d e s i r e d t o amend t h e i n f o r m a t i o n b e f o r e t r i a l and i n c l u d e an a l t e r n a t i v e c o u n t of felony-murder, it had t h e r i g h t t o d o s o . In fact, section 46-11-403, MCA, e n t i t l e d Amending t h e Charge, sets f o r t h t h e p r o c e d u r e f o r amending an i n f o r m a t i o n . But no e f f o r t was e v e r made t o amend t h e c h a r g e s b e f o r e t h e t r i a l , o r f o r t h a t m a t t e r , a t any t i m e .

With t h e s t a t u t o r y background of s e c t i o n 46-11-404(1) and 46-11-403, MCA, i n mind, I f a i l t o see how a p o s s i b l e felony-murder c o n v i c t i o n can be based upon a t h e o r y n o t charged i n t h e information.

There i s no i n d i c a t i o n i n t h e r e c o r d of why d e f e n s e c o u n s e l a t t r i a l f a i l e d t o c a t c h t h e new t h e o r y s p r u n g on t h e d e f e n d a n t by i n s t r u c t i o n 1 6 , s e t t i n g f o r t h t h e f e l o n y -murder r u l e i n a d d i t i o n t o t h e c h a r g e t h a t d e f e n d a n t " p u r p o s e l y o r knowingly" k i l l e d t h e McLeans. T r i a l counsel d i d not r e p r e s e n t d e f e n d a n t on t h e a p p e a l o f t h i s c a s e ( t h e r e a s o n

being that sometime after the conviction in this case, he went to work for the county presecutor who tried this case). It appears, nonetheless, that his failure to object to the felony-murder portion of the instruction, was inadvertent. His objection to the instruction was that it was repetitious of other instructions already defining deliberate homicide and the elements to be proved. It was indeed repetitious; but it went one step beyond this and injected the felony-murder theory into this case for the first time. It is fundamentally unfair that the prosecutor can be rewarded for his deliberate injection of a new issue and theory into the trial upon the settlement of instructions, in total violation of the pro- cedural rules governing the charging of an offense. Why should a defendant be punished because the prosecutor has violated the basic procedural statutes governing his conduct as a prosecutor? The majority's rationale for permitting the felony-murder instruction and possible conviction for felony-murder to stand, is more than tissue-paper thin. Waiver by failing to object to the instruction, and failure to move the court to require the prosecution to elect its theory to present to the jury, are the announced grounds. As to waiver, the majority's reliance on State v. Campbell (1965), 146 Mont. 251, 405 P.2d 978, and cited by the State in its brief on this point, is misplaced. In Campbell, the raising of an objection to an instruction on one ground at trial, and on an entirely different ground on appeal, was held to constitute a waiver. But the instruction involved in Campbell did not inject into the trial an entirely new theory of the case. Here the State is rewarded for proceeding in blatant violation of the underlying statutory guidelines for charging and amending criminal charges. A waiver theory must have as its underlying foundation, a belief that the -25-

error was not so fundamental as to require a reversal. Here the error is so fundamental, and so palpable, that a reversal is required. As its second procedural reason for turning down defendant's argument with relation to the felony-murder instruction, the Court states: "Additionally, at trial, Sunday did not require the State to specify which theory of deliberate homicide the State was following." In the context of this case, this rationale has no application at all. Where only one theory has been charged it is rather difficult and meaningless to require a defendant to move to require the prosecutor to specify which theory he will rely on in asking the jury to reach a decision. The charges contained no basis upon which a defendant could make such a motion. Furthermore, assuming that defendant was charged alternatively with felony-murder, there was no basis in the law upon which a defendant could successfully move that the State elect its theory. Section 46-11-404(1), supra, specifically allows alternative charges and states, moreover, that ". . . The prosecution is not required to elect . . ." Here the error is plain and the prejudice manifest. This Court has a duty to recognize such manifest errors and take the necessary corrective measures. Indeed, under the plain error doctrine this Court can take the necessary corrective action where the error has affected the substantial rights of the parties. The only remedy here is to grant defendant a new trial. For reasons that I am unable to fathom, there is an ever present tendency of this Court to relieve the trial courts of their affirmative duties to properly instruct the jury on the applicable law of the case. As far as I am concerned -26-

s u c h d u t y i n h e r e i n t h e o f f i c e o f a d i s t r i c t judge and c a n n o t be d e l e g a t e d t o t r i a l c o u n s e l f o r e i t h e r p a r t y . Although t h e d u t y i s e q u a l l y clear i n c i v i l and c r i m i n a l c a s e s , l i f e and l i b e r t y i s a t s t a k e i n c r i m i n a l c a s e s and t h u s t h e r e a r e more c o m p e l l i n g r e a s o n s t o r e q u i r e t h e D i s t r i c t Court t o p r o p e r l y i n s t r u c t t h e jury. I n t h i s respect, the t r i a l judge c a n n o t be a n i d l e p a r t i c i p a n t , l e a v i n g i t t o counsel t o provide t h e appropriate i n s t r u c t i o n s f o r t h e jury. There i s , of c o u r s e , a s t r o n g d u t y of c o u n s e l t o a i d t h e t r i a l court i n preparing the appropriate instructions, but t h e u l t i m a t e d u t y c a n n o t be d e l e g a t e d t o c o u n s e l .

Here it was t h e p l a i n d u t y o f t h e p r o e z c u t o r t o r e f r a i n from o f f e r i n g a n i n s t r u c t i o n which i n j e c t e d a t h e o r y of c r i m i n a l homicide which had n o t been s p e c i f i c a l l y c h a r g e d . I t was f u r t h e r t h e d u t y n o t t o o f f e r an i n s t r u c t i o n on a t h e o r y which h a s no e v i d e n t i a r y b a s i s . It w a s equally the duty of t h e t r i a l c o u r t not t o permit t h e prosecutor t o r e c e i v e t h e b e n e f i t of a n a d d i t i o n a l t h e o r y of c r i m i n a l r e s p o n s i b i l i t y where s u c h t h e o r y h a s n o t been c h a r g e d and where t h e t r i a l h a s n o t been conducted on t h a t b a s i s . Furt h e r m o r e , i t i s t h e d u t y of a t r i a l c o u r t t o r e j e c t an i n s t r u c t i o n which o f f e r s a t h e o r y upon which t h e r e i s no evidentiary basis.

THE FELONY-MURDER INSTRUCTION GIVEN W S INACCURATE AND- A - AN IMPROPER STATEMENT OF - - - THE LAW Assuming a p r o c e d u r a l and e v i d e n t i a r y f o u n d a t i o n t o

g i v e a felony-murder i n s t r u c t i o n , t h e i n s t r u c t i o n a s g i v e n i s a c l e a r d e v i a t i o n from what would b e a p r o p e r i n s t r u c t i o n . The m a j o r i t y h a s b a s e d t h e a p p r o p r i a t e n e s s o f t h e i n s t r u c t i o n on i t s c o n c l u s i o n t h a t d e f e n d a n t cornrr.itted t h e u n d e r l y i n g felony of burglary. But t h e i n s t r u c t i o n was n o t worded i n s u c h t e r m s t h a t t h e j u r y c o u l d o n l y f i n d b u r g l a r y as t h e

underlying felony. Rather, the instruction was an open invitation to the jury to find any underlying felony, even though not charged. Furthermore, the jury could well have determined that theft was the underlying felony which triggered the operation of the felony-murder rule. As previously quoted, section 45-5-102(1) (b), MCA, creates a felony-murder situation if: "it is committed while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after comrniting or attempting to commit robbery, sexual inter- course without consent, arson, burglary, kidnapping, felonious escape, - - other felony which involves or any the- -or threat of physical force or violence - use -- aaainst anv individual." (Emphasis added.) If it was the State's contention that the underlying felony was burglary, the instruction should only have stated that burglary was the underlying felony upon which the State based its felony-murder theory. But the instruction included also the above-emphasized language from the statute, thus giving an open invitation to the jury to find another under- lying felony. The actual instruction (instruction 16, not quoted in the majority opinion), provides as follows: "You are instructed that a criminal homicide is deliberate homicide if: "(1) - It is committed purposely or knowingly; or " (2) It is committed while the offender is enqaqed in flight after committing or attempting to-commit burglary or - other felony which - any -- involves - - -or threat of physical force or the use - violence against any individual." (Emphasis added It is obvious from this instruction that the jury was not confined to determining only that flight after a burglary triggered the application of the felony-murder rule. Rather, the felony-murder rule, by this instruction, is triggered also by flight after "any other felony which involves the use or threat of physical force or violence against any individual." The State had absolutely no right to give this -28-

open-ended i n s t r u c t i o n and t h e t r i a l c o u r t had a p o s i t i v e

d u t y t o r e j e c t t h i s open-ended i n s t r u c t i o n . USE OR -- IMPACT OF - FELONY-MURDER INSTRUCTION G I V E N - - THE IN

THIS CASE -- A f t e r t h e enactment of t h e new c r i m i n a l code i n t h i s S t a t e c r e a t i n g and d e f i n i n g s u b s t a n t i v e c r i m e s , a book of j u r y i n s t r u c t i o n s was c i r c u l a t e d t o many of t h e l a w y e r s i n t h i s S t a t e , and i n p a r t i c u l a r , t o t h e p r o s e c u t o r s . It

i s e n t i t l e d , - riminal Instructions--Montana. C The book

p r o v i d e s no i n f o r m a t i o n a s t o who p u b l i s h e d i t , o r who p r e p a r e d t h e i n s t r u c t i o n s and t h e comments i n rela-kion t o

t h e p r o p e r u s e of t h e i n s t r u c t i o n s . I n any e v e n t , i n s t r u c t i o n 59 p u r p o r t s t o be t h e c o r r e c t method of i n s t r u c t i n g t h e

j u r y on t h e s u b s t a n t i v e c r i m e of d e l i b e r a t e homicide. The

i n s t r u c t i o n p e r t a i n i n g t o felony-murder p r o v i d e s : "A c r i m i n a l homicide i s d e l i b e r a t e homicide i f :

" I t i s committed w h i l e t h e o f f e n d e r i s [engaged] [an a c c o m p l i c e ] i n [ t h e commission o f ] [ a n a t t e m p t t o commit] [ f l i g h t a f t e r committing o r a t t e m p t i n g t o commit] [ r o b b e r y ] [ s e x u a l i n t e r - course without consent] [arson] [burglary] [ k i d n a p p i n g ] [ f e l o n i o u s e s c a p e ] o r [any o t h e r f e l o n y which i n v o l v 2 s - - - h r e a t o f t h e use o r t physical f o r c e l e n c e against - individual.]" any (Emphasis added.) The l a n g u a g e , " o r any o t h e r f e l o n y which i n v o l v e s t h e

u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l , " i s bracketed. T h i s language i s n o t i n t e n d e d t o be p a r t of t h e i n s t r u c t i o n . Rather, i f t h e r e i s a felony

i n v o l v e d which i s n o t one o f t h e enumerated f e l o n i e s , b u t

which n o n e t h e l e s s " i n v o l v e s t h e u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l " , it must be s o

designated. Obviously, t h e d r a f t e r of t h i s i n s t r u c t i o n

r e a l i z e d t h a t a felony-murder i n s t r u c t i o n c o u l d n o t be open- ended. But t h e p r o s e c u t o r i g n o r e d t h e law i n t h i s c a s e and

s u b m i t t e d an open-ended i n s t r u c t i o n . -29-

If the jury arrived at its verdict through application of the felony-murder rule, there is no assurance that it determined the underlying felony to be burglary. The jury could have based its decision on a conclusion that theft was the underlying felony. The jury convicted the defendant of two counts of felony theft. There was no instruction which told the jury that theft could not be used as a basis upon which to predicate the application of the felony-murder rule. Nor is there any assurance that the jury may have found some other felony not charged as the basis to apply the felony- murder rule. The instruction invited the jury to do so. It did not confine the jury to a consideration of those felonies charged as being the sole basis upon which it could apply the felony-murder rule. Assuming that the jury did find theft as the underlying felony to apply the felony-murder rule, a conviction based on this theory cannot stand. First, felony theft is not one of the designated felonies contained in the felony-murder portion of section 45-5-102(1)(b); nor does it fall within the meaning of "any other felony which involves the use or threat of physical force or violence against any individual." Second, assuming that felony-theft can trigger the application of the felony-murder rule, since the underlying felony-theft convictions cannot stand in this case, neither can a felony- theft conviction based upon a theory that felony-theft triggered application of the felony-murder rule. For purposes of distinguishing the crimes of theft and burglary in relation to the felony-murder rule, it is necessary to discuss the concept of burglary under the new criminal code. Burglary is singled out under the new code as being a crime the gravamen of which is the threat to human beings. In explaining the burglary statute, Montana Criminal - - Annotated, at 236, the annotator speaks Code, 1973, to this point:

"Perhaps t h e most s i g n i f i c a n t of t h e changes i n t r o d u c t e d by t h e new code is t h e r e t r e a t from t h e p r i o r view [ t h e p r i o r s t a t u t o r y view] t h a t any b u i l d i n g o r v e h i c l e c o u l d b e t h e o b j e c t o f b u r g l a r y t o t h e view t h a t t o c o n s t i t u t e bur- g l a r y t h e a c t s must be d i r e c t e d a g a i n s t an occupied s t r u c t u r e . The change r e f l e c t s a r e t u r n - -e common - v i e w h t - ~ e n t o th -- hersvam - o f b u r g l a r y was - t h r e a t t o p e r s o n s r e s u l t i n g -the -- w r o n g f u l intrusion. from t h e While t h e new code i s n o t a s t e c h n i c a l l y r e s t r i c t i v e i t does r e q u i r e t h a t t h e s t r u c t u r e intruded i n t o being e i t h e r a c t u a l l y o c c u p i e d o r ' s u i t e d f o r human occupancy o r n i g h t l o d g i n g of p e r s o n s o r f o r c a r r y i n g on business. (See S94-2-lOl(35) [now S45-2-101(34) , MCA]. I n e f f e c t t h i s l i m i t s burglary t o those s i t u a t i o n s i n which - i n t r u s i o n - - the is most a l a r m i n g - t h e t h r e a t t o human -- and- l i f e the meatest." 2 - (Emphasis a d d e d . ) -

Because a b u r g l a r y , under c e r t a i n c i r c u m s t a n c e s , c a n b e t h r e a t e n i n g t o human b e i n g s , it i s s p e c i f i c a l l y d e s i g n a t e d i n t h e felony-murder s t a t u t e a s b e i n g a f e l o n y which c a n t r i g g e r a p p l i c a t i o n of t h e felony-murder r u l e . T h e f t , of course, i s not. The gravamen of t h e f t i s , an o f f e n s e a g a i n s t property. See s e c t i o n 45-6-301, MCA, e t seq. Nowhere i n t h e annotator's note with reference t o thef (Montana C r i m i n a l Code, 1973, A n n o t a t e d , a t 243-245) ,is t h e r e any i n d i c a t i o n t h a t t h e f t , by i t s n a t u r e , i n v o l v e s a t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t an i n d i v i d u a l . Indeed, t h a t i s t h e r e a s o n b u r g l a r y i s d i s t i n g u i s h e d from t h e f t .

I t i s t r u e t h a t s e c t i o n 45-5-102(1) ( b ) s p e c i f i c a l l y p e r m i t s r e l i a n c e on a n u n d e r l y i n g f e l o n y o t h e r t h a n t h o s e which a r e s p e c i f i e d w i t h i n t h e s t a t u t e i t s e l f . The r e q u i r e -ment i s t h a t t h e f e l o n y r e l i e d on be "any o t h e r f e l o n y which i n v o l v e s t h e u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l . " There can b e no doubt however, t h a t t h e p r o s e c u t o r and t h e j u r y a r e n o t p e r m i t t e d t o s p e c u l a t e a s t o c h o i c e s of an u n d e r l y i n g f e l o n y which may t r i g g e r t h e felony-murder r u l e by f a l l i n g w i t h i n t h e s t a t u t o r y d e f i n i t i o n .

Felony t h e f t i s n o t a crime i n which " t h e u s e o f . . . p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l " i n h e r e s

i n t h e crime i t s e l f .

The a n n o t a t o r ' s n o t e t o t h e t h e f t s t a t u t e , sets f o r t h t h e general scope of t h e t h e f t s e c t i o n of t h e c r i m i n a l code :

"This s e c t i o n on t h e f t encompasses t h e t r a d i - t i o n a l c r i m e s of l a r c e n y , l a r c e n y by t r i c k , f a l s e p r e t e n s e s , embezzlement, r e c e i v i n g s t o l e n p r o p e r t y as w e l l a s numerous a s s o c i a t e d o f f e n s e s . The Montana C r i m i n a l Law Commission i n t e n d e d t h a t t h i s s e c t i o n c o v e r e v e r y c o n c e i v a b l e form of t h e f t and i n s o d o i n g , e l i m i n a t e t h e common l a w d i s t i n c t i o n s which encumbered v i r t u a l l y e v e r y one of t h e t h e f t r e l a t e d offenses." (Annotated code, supra, a t 2 4 3 . )

I t i s abundantly c l e a r t h a t felony t h e f t is not a c r i m e which, under t h e felony-murder s t a t u t e , "involves t h e use o r t h r e a t o f p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l . " The m a j o r i t y h a s based i t s o p i n i o n on a n assumption t h a t t h e j u r y found t h e u n d e r l y i n g f e l o n y t o be b u r g l a r y . But t h e r e i s no b a s i s i n t h e r e c o r d from which we can make t h a t d e t e r -mination. The j u r y w a s n o t i n s t r u c t e d t h a t b u r g l a r y i s a c r i m e which i n v o l v e s " t h e u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l . " From t h e j u r y ' s s t a n d -p o i n t t h e r e f o r e , t h e r e was no r e a s o n t o . d i s t i n g u i s h t h e f t from b u r g l a r y i n d e t e r m i n i n g which u n d e r l y i n g f e l o n y t o i n v o k e a s t r i g g e r i n g a p p l i c a t i o n of t h e felony-murder r u l e . A s f a r a s t h e jury i s concerned, t h e i n s t r u c t i o n permitted it t o f i n d t h e f t a s t h e underlying felony. Furthermore, t h e f a c t t h a t d e f e n d a n t was c o n v i c t e d on b o t h c o u n t s of f e l o n y t h e f t i s a n i n d i c a t i o n t h a t t h e j u r y may w e l l have used f e l o n y t h e f t a s t h e u n d e r l y i n g f e l o n y by which a p p l i c a t i o n o f t h e felony-murder r u l e w a s t r i g g e r e d .

One c a n n o t t e l l which u n d e r l y i n g f e l o n y t h e j u r y invoked i f it c h o s e t o a p p l y t h e felony-murder r u l e i n reaching i t s verdict. Obviously, i f t h e j u r y d i d u s e f e l o n y t h e f t a s t h e u n d e r l y i n g f e l o n y , t h e homicide c o n v i c t i o n cannot stand. J u s t as c l e a r l y , s i n c e no one c a n t e l l whether t h e jury d i d o r d i d not use felony t h e f t a s t h e underlying f e l o n y , t h i s C o u r t s h o u l d n o t p e r m i t t h e homicide convictions t o stand.

THE FELONY-MURDER - -H S NO EVIDENTIARY FOUNDATION - RULE - A IN

THIS CASE -- I next proceed t o t h e m a j o r i t y ' s conclusion t h a t t h e r e

was a n e v i d e n t i a r y b a s i s f o r t h e j u r y t o b a s e i t s v e r d i c t on t h e felony-murder r u l e . I n essence, the majority

c o n c l u d e s t h a t t h e d e f e n d a n t was f l e e i n g from a b u r g l a r y , t h a t t h e r e was a c a u s a l c o n n e c t i o n between t h e b u r g l a r y and t h e d e a t h s o f Kenneth and Marion McLean, and t h e r e f o r e t h a t t h e felony-murder a p p l i e d . I have p r e v i o u s l y d i s c u s s e d

m p o s i t i o n t h a t a b u r g l a r y w a s n o t committed b e c a u s e t h e y

t a c k shed was n o t a n "occupied s t r u c t u r e " w i t h i n t h e meaning

of t h e s t a t u t e . I have d i s c u s s e d m p o s i t i o n t h a t t h e open- y

ended felony-murder i n s t r u c t i o n g i v e n i n t h i s c a s e c o u l d

w e l l have p r o v i d e d a b a s i s f o r t h e j u r y t o f i n d an under- l y i n g f e l o n y o t h e r t h a n t h e c r i m e of b u r g l a r y . T h i s open-

ended i n s t r u c t i o n , i s , of c o u r s e , e r r o r . But assuming t h e commission of a b u r g l a r y t o be w i t h i n t h e s t a t u t o r y meaning, and assuming a p r o p e r felony-murder i n s t r u c t i o n , t h e f a c t s of t h i s c a s e do n o t g i v e r i s e t o t h e a p p l i c a t i o n of t h e felony-murder r u l e . The McLeans w e r e n o t w i t h i n t h e i r r i g h t s t o t a k e t h e law i n t o t h e i r own hands by arming thems e l v e s and l a t e r s e t t i n g t h e s c e n e f o r t h e armed c o n f r o n t a t i o n and s h o o t o u t .

Defendant and h i s a c c o m p l i c e s came upon t h e McLean p r o p e r t y a t a p p r o x i m a t e l y 4:00 a.m. Sunday morning, September 5 , 1977. They i n t e n d e d t o t a k e t h r e e h o r s e s and " g e t away from a l l t h e h a s s l e s " and " l i v e o f f t h e l a n d . " These h o r s e s belonged t o Kenneth H o e f f n e r b u t t h e y were i n t h e l a w f u l p o s s e s s i o n o f t h e McLeans. Defendant Sunday and h i s accomplice Wilson t h e n e n t e r e d t h e t a c k shed and took t h r e e b r i d l e s ,

-33-t h r e e s a d d l e s , and t h r e e p a i r s of c h a p s . As t o the u s e o f t h e t a c k s h e d , an employee t e s t i f i e d t h a t o t h e r employees o r g u e s t s went i n t o t h e t a c k shed from t i m e t o t i m e t o o b t a i n o r r e p l a c e t h e r i d i n g equipment. There i s no t e s t i m o n y t h a t employees o r g u e s t s went i n t o t h e t a c k shed between n i g h t f a l l and s u n r i s e , t h e t i m e when t h e e n t r y was made h e r e .

A s a r e s u l t of h i s e n t r y i n t o t h e tack shed, defendant was c h a r g e d w i t h b u r g l a r y . The p r o s e c u t o r a l l e g e d t h a t t h e t a c k shed was an "occupied s t r u c t u r e . " In addition t o t h e b u r g l a r y c h a r g e , c o u n t I11 a l l e g e d t h e f t i n t h a t d e f e n d a n t and h i s a c c o m p l i c e s s t o l e t h r e e s a d d l e s , t h r e e b r i d l e s and t h r e e p a i r s of c h a p s from t h e t a c k s h e d . This same c o u n t a l s o a l l e g e d t h a t d e f e n d a n t and h i s a c c o m p l i c e s s t o l e t h r e e horses.

A f t e r s a d d l i n g and b r i d l i n g t h e h o r s e s , d e f e n d a n t and h i s a c c o m p l i c e s packed up what s u p p l i e s and equipment t h e y h a d , and r o d e away. Each of t h e d e f e n d a n t s had a f i r e a r m , a l l a p p a r e n t l y s t o l e n by them w h i l e t h e y w e r e i n t h e S t a t e of Nebraska. Defendant Sunday had a 30-30 r i f l e ; accomplice Wilson had a 22.250 r i f l e ; and accomplice M i t c h e l l had a s i n g l e s h o t . 4 1 0 shotgun.

The t r i a l r e c o r d d o e s n o t d i s c l o s e when t h e McLeans d i s c o v e r e d t h e h o r s e s and r i d i n g equipment m i s s i n g . Nor, o f c o u r s e , i s t h e r e any e v i d e n c e t h a t t h e y knew t h e d e f e n d a n t and h i s a c c o m p l i c e s t o be armed. The McLeans d i d n o t , however, r e p o r t t h e t h e f t s t o l o c a l l a w enforcement o f f i c i a l s . R a t h e r , t h e y armed t h e m s e l v e s and s t r u c k o u t a f t e r t h e h o r s e thieves.

W e do n o t know when t h e McLeans began t h e i r s e a r c h f o r t h e stolen horses. The armed c o n f r o n t a t i o n d i d n o t t a k e

-34-p l a c e u n t i l a t l e a s t a day and a h a l f l a t e r , i n t h e l a t e a f t e r n o o n o f September 6, 1977. By t h i s t i m e , d e f e n d a n t and h i s a c c o m p l i c e s had t r a v e l e d o n l y a few m i l e s from t h e McLean p r o p e r t y . I t w a s t h e n , i n t h e words o f t h e m a j o r i t y o p i n i o n , t h a t d e f e n d a n t and h i s a c c o m p l i c e s "saw a p i c k u p t r u c k r a p i d l y approaching. They t r i e d t o e s c a p e i n t o t h e trees b u t w e r e c u t o f f by t h e p i c k u p . The p i c k u p w a s d r i v e n by Kenneth McLean. H i s wife w a s a l s o i n t h e pickup. Kenneth McLean s t o p p e d t h e p i c k u p a b o u t s i x t y - f i v e f e e t from Sunday, Wilson and t h e M i t c h e l l s . " Thus t h e s t a g e w a s set f o r t h e armed c o n f r o n t a t i o n and s h o o t o u t .

McLean l e a p e d o u t o f t h e p i c k u p t r u c k c a r r y i n g a .308 c a l i b e r b o l t a c t i o n r i f l e , and M r s . McLean came o u t armed w i t h a .38 c a l i b e r p i s t o l . Defendant Sunday immediately d i s -mounted from h i s h o r s e . H e was armed w i t h a .30-30 rifle. Accomplice Wilson w a s armed w i t h a .22-250 c a l i b e r b o l t a c t i o n r i f l e , and accomplice M i t c h e l l w a s armed w i t h a . 4 1 0 gauge s i n g l e s h o t s h o t g u n . Only a few words w e r e exchanged before the gunbattle started.

A s Kenneth McLean approached t h e d e f e n d a n t and h i s accomplices, he y e l l e d , "What t h e God Damn h e l l i s g o i n g on? What k i n d o f p r a n k i s t h i s ? Give u s o u r h o r s e s , o r w e w i l l s h o o t you." Marion McLean added, "Your God Damn right we will." Almost i n s t a n t a n e o u s l y w i t h h i s words, Kenneth McLean o p e r a t e d t h e b o l t mechanism o f h i s r i f l e and i n j e c t e d a c a r t r i d g e . This evidence i s n o t disputed.

But a d i s p u t e i n t h e t e s t i m o n y arises between what d e f e n d a n t c o n t e n d s Kenneth McLean d i d and what t h e a c c o m p l i c e s s a y happened. Defendant Sunday t e s t i f i e d t h a t Kenneth McLean p o i n t e d h i s r i f l e d i r e c t l y a t him and t h a t h e w a s " s c a r e d as hell." Accomplices M i t c h e l l and Wilson, on t h e o t h e r hand, t e s t i f i e d t h a t McLean's r i f l e w a s p o i n t e d a t t h e ground. In any e v e n t , t h e s h o o t i n g immediately e r u p t e d .

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Defendant f i r e d f i r s t and h i t Kenneth McLean i n the leg. The s h o o t i n g a s d e s c r i b e d i n t h e m a j o r i t y o p i n i o n , c o n t i n u e d u n t i l b o t h Kenneth McLean and Marion McLean l a y dead. Defendant and h i s a c c o m p l i c e s t h e n s t o l e some p e r s o n a l b e l o n g i n g s from t h e McLeans and f l e d t o Oregon i n t h e McLean p i c k u p t r u c k where t h e y were a r r e s t e d .

I t i s c l e a r t h a t t h e S t a t e had t h e r e q u i s i t e p r o b a b l e c a u s e t o c h a r g e d e f e n d a n t w i t h d e l i b e r a t e homicide ( " p u r -p o s e l y o r knowingly" c a u s i n g t h e d e a t h s of Kenneth and Marion McLean). I t i s e q u a l l y a s c l e a r , however, t h a t t h e S t a t e had no b a s i s t o c h a r g e d e f e n d a n t w i t h d e l i b e r a t e homic i d e by a p p l i c a t i o n of t h e felony-murder r u l e . Indeed, t h e r e i s not t h e s l i g h t e s t i n d i c a t i o n i n the record t h a t t h e d e f e n d a n t was e v e r p u t on n o t i c e t h a t he must dofend a g a i n s t a felony-murder t h e o r y .

Defendant gave n o t i c e t o t h e S t a t e t h a t he would r e l y on a c l a i m o f s e l f - d e f e n s e a s a j u s t i f i c a t i o n f o r h i s a c t i o n s . The S t a t e a t no t i m e opposed t h i s c l a i m e d d e f e n s e o r cont e n d e d t h a t d e f e n d a n t had no r i g h t t o c l a i m s e l f - d e f e n s e . The r e c o r d i s b a r r e n of any i n d i c a t i o n t h a t t h e S t a t e i n t e n d e d t o r e l y on t h e felony-murder r u l e a s t h e t h e o r y o r one of i t s t h e o r i e s of p r o s e c u t i o n . I f t h e S t a t e d i d intend t o use t h e felony-murder r u l e , it was a well-guarded secret until t h e end of t h e t r i a l when it s o c l e v e r l y s u p p l i e d t h e f e l o n y -murder t h e o r y t o t h e j u r y i n t h e form o f an i n s t r u c t i o n .

The m a j o r i t y makes no a t t e m p t t o a n a l y z e t h e f a c t u a l context giving rise t o t h e d e c l a r a t i o n t h a t t h e felony-murder was p r o p e r l y a p p l i e d . Rather, t h e c l e a r implication i s t h a t any c o n d u c t of t h e d e f e n d a n t and h i s a c c o m p l i c e s a f t e r t h e commission of t h e b u r g l a r y , can be t r a c e d back and become c a u s a l l y r e l a t e d t o t h e commission of t h e b u r g l a r y . I t i s n o t s u f f i c i e n t t o g l i b l y d e c l a r e t h a t d e f e n d a n t committed

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burglary and that the McLeans deaths are causally related to the commission of the burglary. The unusual~circumstances existing in this case require that the relative rights of the parties be considered, for these rights are inextricably connected to a determination of whether the felony-murder rule was properly applied here. To apply the felony-murder rule to this case is to implicitly hold that defendant Sunday, as a matter of law, was precluded from asserting that he was acting in self- defense. If a perpetrator of a proscribed felony contained within the felony-murder statute is to be held criminally responsible for conduct resulting in the deaths of human beings which is causally connected to the commission of the underlying felony, it makes little sense to permit him to rely on a claim of self-defense as a justification of his actions leading to the deaths involved. Within the context of the facts of this case, the McLeans' conduct was sufficient to break the causal link between the commission of the burglary and their tragic deaths. There is no doubt here that defendant Sunday had a right to present a claim of self-defense to the jury. This being so, I fail to see how the State could be entitled to rely on the felony-murder rule. The McLeans failed to report the horse thefts to a law enforcement agency. Rather, they appointed themselves as a two member vigilante posse. Armed for a confrontation with the horse thieves, they went after them in their pickup truck. The record is barren of any evidence that the McLeans had the intention to bring the horse thieves to justice by using any kind of citizen arrest powers. Rather, they were concerned only with the return of the horses and were willing to use armed force to accomplish that result. With both sides being armed, it appears that a classic western- -37-

s t y l e g u n b a t t l e was i n e v i t a b l e . I t was o c c a s i o n e d , however, by t h e p r e c i p i t i o u s and unwarranted a c t s of t h e McLeans i n t a k i n g t h e law i n t o t h e i r own hands and using force i n t h a t process.

What i s t h e e x t e n t t o which t h e McLeans c o u l d go i n u s i n g s e l f - h e l p e f f o r t s t o s e c u r e t h e r e t u r n of t h e h o r s e s ? And assuming t h a t t h e McLeans u s e d o r t h r e a t e n e d t o u s e armed f o r c e t o s e c u r e t h e r e t u r n of t h e i r h o r s e s , what i s t h e e x t e n t t o which Sunday c o u l d resist t h e i r armed t h r e a t s o r o v e r t a c t s which may have l e d him t o b e l i e v e t h a t h i s l i f e was i n imminent d a n g e r ? Did t h e McLeans have t h e r i g h t t o a r m t h e m s e l v e s and by t h e u s e o f armed f o r c e demand t h e r e t u r n of t h e i r h o r s e s ? Did t h e McLeans have t h e r i g h t t o t a k e such a c t i o n as would o r c o u l d l e a d t h e d e f e n d a n t o r h i s a c c o m p l i c e s t o b e l i e v e t h e i r l i v e s t o b e i n imminent danger?

By t h e same t o k e n , t h e q u e s t i o n a r i s e s a s t o t h e e x t e n t t o which d e f e n d a n t and h i s a c c o m p l i c e s c o u l d d e f e n d thems e l v e s a g a i n s t t h e u s e of f o r c e o r t h r e a t s o f u s e o f f o r c e

by t h e McLeans. Assuming a n o v e r t t h r e a t e n i n g a c t by Kenneth was Sunday, McLean w i t h h i s r i f l e d i r e c t e d a t d e f e n d a n t S u n d a y d b e c a u s e

he had s t o l e n t h e McLeans' h o r s e s and r i d i n g a c c e s s o r i e s , r e q u i r e d t o s u b m i t h i m s e l f t o b e i n g t h e v i c t i m of a p o s s i b l e homicide? I f Sunday b e l i e v e d h i s l i f e t o be i n imminent d a n g e r by Kenneth McLean's t h r e a t t o s h o o t accompanied by a n o v e r t a c t , d i d h e have a r i g h t t o d e f e n d h i m s e l f by f i r s t s h o o t i n g McLean? Assuming an o v e r t a c t by McLean w i t h h i s r i f l e d i r e c t e d a t d e f e n d a n t Sunday, d i d Sunday have t h e r i g h t t o d e f e n d h i m s e l f by t h e u s e of c o u n t e r v a i l i n g armed force? Only i f it can be h e l d a s a m a t t e r o f law t h a t Sunday had no r i g h t t o d e f e n d h i m s e l f from McLean's t h r e a t s o r o v e r t a c t s w i t h h i s r i f l e , can a n a p p l i c a t i o n of t h e felony-murder r u l e be j u s t i f i e d . O t h e r w i s e , d e f e n d a n t Sunday w a s e n t i t l e d t o p r e s e n t t o t h e jury h i s claim of s e l f defense.

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The effort of the McLeans to recapture their horses by force of arms was to trigger an armed and deadly response from the defendant and his accomplices. There is no doubt that the McLeans threatened to kill the defendant and his accomplices. Defendant, moreover, testified that he fired only because he believed his own life to be in immediate danger when McLean pointed the loaded rifle at him. While defendant's accomplices, who had turned state's evidence, testified that McLean had pointed his rifle at the ground rather than at the defendant, there is no question that there was a factual picture depicted sufficient to raise a claim of self-defense. If it be conceded that defendant had a right to present his self-defense claim to the jury, it follows that the State was not entitled to encumber and muddy this claim of self-defense by proceeding on a felony- murder theory, The underlying purpose of the felony-murder rule is defeated where a defendant is permitted to rely on a claim of self-defense as justification for his actions. Once a causal connection is established between the commission or attempt to commit the underlying felony, criminal liability attaches without regard to the defendant's intent to kill. The theory is that certain felonies are so inherently dangerous to human life that a defendant ought not to be able to escape criminal responsibility by proving that in the commission of, attempt to commit, or flight from the commission or attempt to commit the underlying felony, he did not intend to kill. The additional triggering factor of flight has been added by the legislature of this State, and is not within the traditional definition or concept of consistent the felony-murder rule. If the felony-murder rule is to be /

and to fulfill its underlying purpose, it would also be no defense for the perpetrator to contend that he killed in self-defense. To permit such a defense would destroy the underlying purpose of the felony-murder rule. Furthermore, a claim of self-defense is patently inconsistent with a felony-murder prosecution. The felony- murder rule does not permit one to escape criminal respon- sibility by a contention that he did not intend to kill. Although a claim of self-defense does not necessarily result in an admission that the perpetrator actually intended to kill, it does mean that the perpetrator admits the use of deadly force but contends that he was justified on grounds of self-defense. If a causal connection is established between the commission of the underlying felony and the death of a human being, it hardly makes sense to permit the perpetrator to assert that the act of killing was in self-defense. There are no statutes in this State, and there are no cases decided by this Court which permit of the self-help activities engaged in by the McLeans in seeking the return of their horses. They had no right to use armed force to accomplish this result. The only statute even remotely applicable is section 46-6-502, MCA, which sets forther the circumstances under which a private citizen can make an arrest. The statute provides in substance that a private citizen can arrest if an offense is committed or attempted in his presence, or if a felony has in fact been committed and he has reasonable grounds to believe that the person arrested committed the offense. The Montana Criminal Law Commission Comment to this statute, sets forth a clear intent to restrict the involvement of private citizens in making unilateral decisions to arrest: -43-

"The concensus of the commission was that modern law enforcement requires that most arrests be made by police officers and the right of private persons to arrest should be strictly limited." Even assuming the right of the McLeans to arrest under the authority of this statute, the record is barren of any evidence that they were attempting to effectuate an arrest. Rather, they were interested only in forcing the return of their property at gunpoint. They obviously were willing to engage in a gunfight to accomplish that end. When the McLeans discovered the thefts, it was clearly their duty to call in law enforcement and let them handle the situation. Their precipitious and foolish action in taking the law into their own hands by force of arms provoked the armed confrontation and shootout which resulted in their tragic deaths. The McLeans actions in arming themselves, tracking down the thieves, and subsequent threats to kill accompanied by the obvious apparent ability to carry out their threats, operated to break any chain of causation between the commission of an underlying felony and the deaths of the McLeans. This was an efficient intervening cause if ever there was one. There being no causal relation- ship, the felony-murder rule has no application. Under the facts as testified to by the accomplices who turned State's evidence, and the testimony of the defendant, defendant clearly had a right to present his claim of self- defense to the jury. Although he was a thief, he had no

duty to become a homicide victim by letting the McLeans shoot him first. Whether he was in imminent danger and acted reasonably under the circumstances in shooting first, is a jury question. But if the defendant reasonably believed his life to be in imminent danger because of the threatening use of firearms by the McLeans, he had a right to claim that he was acting in self-defense. The conduct of the McLeans in precipitating the armed confrontation intervened to cut off the application of the felony-murder rule. To hold otherwise is to hold in effect that defendant had no right to present his claim of self-defense to the the jury and,/ majority did not hold that defendant had no right to present a claim of self-defense to the jury. The felony-murder instruction and possible jury verdict based on that instruction and theory, muddied the waters in relation to defendant's claim of self-defense. He was entitled to present his claim of self-defense free of any contention of the State that he was guilty of deliberate homicide by virtue of the felony-murder rule. For thirj reason, he is entitled to a new trial on the homicide charges. I would hold in relation to count I11 of the theft

charges in the same manner as the majority held in count V of the theft charges. I would reverse the burglary conviction for the reason that the tack shed was not an "occupied structure" within the meaning of the statute. For all the reasons stated in relation to the felony-murder instruction, I would grant a new trial to the defendant on the homicide charges with instructions that the felo~y-murderrule cannot be applied to this case.