Appeal from District Court of Powell County.
Third Judicial District.
Hon. Nat Allen, Judge presiding.
MR. JUSTICE HASWELL DELIVERED THE OPINION OF THE COURT.
Submitted November 6, 1975.
Defendant was convicted by jury verdict of two first degree murders and a first degree assault in the district court, Powell County. Judge Nat Allen sentenced him to two consecutive terms of life imprisonment for the murders and an additional term of ten years for the assault. Defendant appeals from the judgment of conviction and denial of his motion for a new trial.
Defendant is Roger G. Caryl, an 18 year old at the time of the crimes charged and at the time of trial. He was employed as a ranch hand at the Whitetail ranch near Ovando, Montana. On the morning of October 7, 1973 he entered the kitchen at the main lodge of the ranch with a shotgun in his hands, a pistol in a holster at his side, and a knife in his belt. As he entered Dianna Schnaible, a ranch employee, was going downstairs to get some coffee; defendant told her to get back in the kitchen and she did so. Seated around the kitchen table were John Miller, defendant's employer, and Arlene Needles, a ranch employee. Miller's wife, Roberta, was either seated at the kitchen table or standing by the dishwasher. Ruby Judd, the ranch cook, was standing by the stove and Dianna Schnaible had walked over behind her.
Defendant said "Here`s hello from ____", it being uncertain who was named. The sequence of events thereafter is confused. In any event, defendant shot John Miller and Ruby Judd with the shotgun, the latter during her attempt to take the shotgun away from defendant. According to Dianna Schnaible, defendant also shot at her but missed.
John Miller, Roberta Miller and Arlene Needles ran outside the main lodge building to the Copenhaver house. John Miller died there within a short time from the gunshot wound. Ruby Judd was taken by ambulance to a hospital in Missoula where she died that afternoon.
Immediately after the shooting Steve Foundation, brother of Roberta Miller, and Jerry Schnaible, husband of Dianna Schnaible and an employee at the Whitetail ranch, went to the kitchen of the main lodge where Ruby Judd was lying on the floor. Both testified that Ruby Judd stated that defendant shot her.
Defendant left the Whitetail ranch in Ruby Judd's car and escaped the dragnet set up to apprehend him. He traveled to Denver, Colorado and then to Miami, Florida where he was apprehended in February, 1974 and returned to Montana.
On March 7, 1974 an Information was filed in the district court, Powell County, charging defendant with three crimes: (1) first degree murder of John Miller, (2) first degree murder of Ruby Judd, (3) first degree assault of Dianna Schnaible. Defendant was not charged in connection with the deaths of Steve Akins and Sam Akins, ranch employees, whose bodies were found in the bunkhouse on the Whitetail ranch occupied by them and defendant.
Defendant entered a plea of "not guilty" to each charge. He gave notice of his intention to rely on the defense of mental disease or defect excluding responsibility.
His defense at the trial principally focused on his claim that he was not responsible for his acts because of mental disease or defect. He testified in substance that the night preceding the killings and assault he drank some whiskey and took a "red" (i.e. a nonprescription drug), got "bombed", and could remember nothing more until a couple of days thereafter when he stopped at a motel in southern Montana. He did not deny the killings but claimed a state of mind incapable of forming the specific intent required to constitute the crimes. He also contended that the fact of the assault on Dianna Schnaible and the requisite specific intent was not proven.
The major battleground at the trial concerned his claim of mental disease or defect. The testimony at the trial consisted of events, attitudes and relationships during his childhood and during his employment at the Whitetail ranch coupled with expert opinion evidence from psychologists, a social worker, and a psychiatrist concerning the presence or absence of mental disease or defect.
The evidence indicated, among other things, that defendant was born on September 3, 1955 in Japan where his father was stationed in the Air Force. His mother was a registered nurse. Testimony indicated that defendant grew up in Mount Zion and Decatur, Illinois and that he was a high school graduate with average grades. From time to time he became a disciplinary problem at school resulting in temporary suspensions. As he went through high school, he spent progressively less time at home and became more isolated from his parents.
From an early age he became obsessed with the "old west", cowboys, and gunfighters. He wore western clothes, cowboy boots, and talked with a drawl. He became fascinated with early Texas history, southerners, and the Confederacy. The night he graduated from high school, he headed for Texas where he spent a few days. He returned home and in August, 1973 headed west with a high school friend, eventually ending up at the Whitetail ranch.
He told them his name was Texana Jess McCord, apparently from a television program; that he was from Texas where his folks had a ranch; that he was an experienced cowboy; that he had been wounded in Vietnam while serving with the U.S. Marines; and many other fantasies of the same general tenor. He was considered a braggart and a liar by many of those at the Whitetail ranch.
Testimony further indicated that he had never been paid for his work at the ranch; that he was behind in his car payments; that he had damaged his employer's truck when he ran it off the road; that he had been given three traffic citations which were unpaid and further action was threatened; that he had shot his employer's dog; and that his employer was going to discharge him and have him removed from the premises. He began worrying on the Saturday night before the Sunday morning shootings, went to the bunkhouse, and began to drink. The two Akins and a "long haired" friend appeared at the bunkhouse; the "long hair" gave him a "red" which he swallowed; defendant went outside "bombed" and does not remember anything further until a couple days after the shootings.
After charges were filed against defendant, he was extensively examined and tested over a four week period at the Warm Springs State Hospital. He was also examined and tested by a psychologist retained by the defense.
The principal report and testimony on behalf of the state was given by Dr. M.F. Gracia, a psychiatrist at the Warm Springs State Hospital. His diagnosis of defendant was: without mental disorder; episodic excessive drinking; passive-aggressive personality; drug dependence, psycho-stimulants (reds); social maladjustment; unsocialized aggressive reaction of adolescence. Dr. Gracia concluded: (1) that defendant had the capacity to understand the proceedings against him and to assist in his own defense; (2) that at the time of the criminal conduct charged, defendant had the ability to appreciate the criminality of his conduct and to conform his conduct to the requirements of law; and (3) that defendant possessed the capacity to have the particular state of mind which is an element of the offenses charged.
The defense called Dr. Lester W. Edens, a psychologist, who gave a report and testimony on defendant's mental state. On the basis of his testing and examination, Dr. Edens' conclusion and opinion can be stated in this language from his report:
"In summation, it is the impression of this examiner that this patient is characterized as a personality disorder of a non-psychotic nature. Specifically, the diagnosis would read personality disorder, anti-social personality type, Code No. 301.7 of the A.P.A. diagnostic and statistical manual of disorders. In addition to the primary diagnosis, it is the impression of the writer that there are underlying schizophrenic symtoms not yet characterized, that is, Mr. Caryl on occasion appears to present contaminated thought processes and inappropriate mannerisms and responses. The dynamics related to a personality disorder, together with the milieu, undoubtedly contributed to the reported incident for which this patient is incarcerated. Additionally, with a tendency towards periodic disorganization of thought processes, his condition has been and will continue to be disabling, particularly when compounded with the induction of alcohol and/or non-prescriptive drug abuse."
Defendant's specifications of error can be grouped to permit ease of analysis and discussion:
(1) Insufficient evidence to support the conviction.
(2) Error in denying defendant a pretrial interview of state's witness Dianna Schnaible.
(3) Error in jury instructions.
(4) Error in admitting statement of Ruby Judd.
(5) Prejudicial conduct of the prosecuting attorney.
Defendant contends the evidence was insufficient to support his conviction on either murder charge or the assault charge. He contends that proof of one or more elements of each crime was lacking.
Defendant claims the evidence insufficient to prove premeditation or malice aforethought in the killing of John Miller, and therefore the most he can be convicted of is second degree murder.
Premeditation and malice aforethought are subjective mental states which can only be proven by the circumstances under which the killing took place.
"Whether premeditation is present in a given case is a question of fact to be determined by the jury from all the circumstances of the case such as the use of a deadly weapon upon an unarmed victim, * * * [and] the procuring and preparation of weapons with which to commit the crime * * *." 1 Wharton's Criminal Law and Procedure, § 267, pp. 566, 567, 568.
Here premeditation and malice aforethought can be inferred from defendant's act of arming himself with deadly weapons, seeking out his victim, and shooting his unarmed victim without provocation.
Next, defendant claims that the evidence is insufficient to prove premeditation and malice in the killing of Ruby Judd. It is apparently defendant's contention that the fact she was shot while trying to take the shotgun away from him negates these elements.
The circumstances surrounding the killings and assault support an inference that defendant intended to shoot as many people as he could indiscriminately. What has been said heretofore in connection with the killing of John Miller applies as well to the killing of Ruby Judd. The fact she attempted to defend herself and the other persons present in the kitchen by grabbing the shotgun does not necessarily negate the malice and premeditation in defendant's mind. The jury found malice and premeditation and on review this Court will consider the evidence in the light most favorable to the prosecution who prevailed in the trial court (Schneider v. United States, 9 Cir., 192 F.2d 498; Hellman v. United States, 9 Cir., 298 F.2d 810), and will assume the existence of every fact which the jury could have deduced from all the evidence to reach its verdict. State v. Noble, 142 Mont. 284, 384 P.2d 504.
Defendant also claims there is insufficient evidence to prove that he shot at Dianna Schnaible or to prove a specific intent to kill her.
The crime of first degree assault is defined by statute in section 94-601, R.C.M. 1974:
"Every person who, with intent to kill a human being * * *
"1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death * * *,
"is guilty of assault in the first degree * * *".
Dianna Schnaible's testimony that defendant shot at her with a shotgun is sufficient proof of an assault with a loaded firearm within the meaning of the statute. The specific intent to kill can be inferred from defendant's act of entering the room heavily armed, the shooting of John Miller and Ruby Judd without provocation, and his succeeeding act of shooting at her at close range and without provocation.
Accordingly, we hold the evidence sufficient to support defendant's conviction on all three charges.
Defendant claims prejudicial error because defense counsel was unable to interview Dianna Schnaible, the only eyewitness to the shooting of Ruby Judd and the ...