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State of Montana v. Jay J. Myran

November 8, 2012


APPEAL FROM District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 09-158A Honorable Holly Brown, Presiding Judge

The opinion of the court was delivered by: Michael E Wheat

Submitted on Briefs: September 26, 2012




Justice Michael E Wheat delivered the Opinion of the Court.

¶1 Defendant Jay J. Myran ("Jay") appeals his conviction of deliberate homicide in the Eighteenth Judicial District Court, Gallatin County. We affirm.


¶2 We restate the sole issue on appeal as follows:

¶3 Did the District Court err by instructing the jury on intoxication in accordance with § 45-2-203, MCA, because the statute violates a criminal defendant's due process right to present a defense?


¶4 Jay's appeal follows his conviction for deliberate homicide stemming from the shooting of Gayle Brewster ("Gayle"), his former roommate in Three Forks, Montana. Gayle rented a trailer from Vickie Veltkamp ("Vickie") on Pyfer Road outside Three Forks beginning in November 2008. Jay joined Gayle as a roommate, although there is some indication that the two had previously had a more intimate relationship. Sometime in March 2009, Jay's son L.M. came to live with them. L.M.'s presence in the small trailer apparently added to burgeoning tensions between Jay and Gayle.

¶5 Gayle and Jay frequently drank alcohol together at night, and often argued. On the day of Gayle's death, May 12, 2009, Jay drank with Gayle and his friend and sometime co-worker Aaron Bruce ("Aaron"). Jay, Gayle, and Aaron had been drinking since the afternoon. Gayle and Jay had begun to argue, apparently over whether Gayle could use Jay's truck. L.M. and Bruce testified that during the course of the argument, Jay repeatedly said, "Let's kill Gayle." L.M. did not consider this to be more than "drunk talk," although Jay had made similar statements for weeks.

¶6 Aaron left sometime during the late afternoon, and Jay and Gayle continued to fight and drink. According to L.M., Gayle eventually retreated to her room. Jay continued to say "Let's kill Gayle," but L.M. still considered it to be "drunk talk." At some point, Jay took out his .410 shotgun and set it on a turtle cage by the trailer door. Jay testified that he took the gun out with the intention to shoot rabbits. At some later point, Gayle exited her room and the argument resumed. L.M. was playing video games in the same room, and he testified that he saw Jay take out a shell and load the shotgun while arguing with Gayle. L.M. testified that Jay then raised the gun towards Gayle, Gayle walked towards him and put the gun in her mouth, said "Do it, Cowboy," and the gun went off, killing Gayle. L.M. did acknowledge at trial that he previously told two Gallatin County detectives that Jay put the gun in Gayle's mouth. After the gun went off, Jay walked over to L.M. and asked him, "Now you think you have what it takes to be in the military?" Jay then put Gayle's body on a rug and moved it onto the porch. After he cleaned up the blood, Jay continued to drink and eventually fell asleep. Jay claimed he had no recollection of saying "Let's kill Gayle" or taking the shotgun out, loading it, or cocking it. He has continued to maintain that the shooting was an accident, a result of his drunken brandishing of the loaded weapon and Gayle "jerking" it towards her mouth.

¶7 The next morning, May 13, 2009, Jay woke up L.M. and ordered him to help put Gayle's body in a burn barrel outside. They put the body in the barrel and Jay started a fire, stoking it throughout the day. Jay withheld L.M. from school to prevent him from talking about the incident and told L.M. to avoid talking about Gayle in the past tense.

¶8 Vickie was on vacation at the time of Gayle's death, and she and her husband returned to Three Forks on May 24, 2009. Vickie generally asked Gayle to watch the house, water the plants, and feed her cat while they were away. However, when she returned on May 24, the cat had not been fed, the plants were dying, and the mail had not been collected. Vickie tried to contact Gayle over the next several days but was unsuccessful. Vickie also noticed that the brush surrounding the burn barrel had been burned, indicating it had been used contrary to Vickie's instructions not to. Vickie did not see Gayle or her dog Boomer, but Jay and L.M. were still around. Vickie called law enforcement on May 27, 2009, and reported Gayle missing.

¶9 Two Gallatin County Sheriff's Office deputies visited Jay at the trailer following Vickie's call on May 27, 2009. The deputies informed Jay that Gayle had been reported missing, and he said Gayle had been gone for "some time." When the deputies looked in Gayle's room, they noticed her inhalers, wallet, purse, and cell phone remained.

ΒΆ10 The next day, Jay informed Vickie that he and L.M. would be moving as soon as L.M. was out of school. Jay told Vickie he had a job lined up in Billings, Montana. Jay and L.M. left shortly after L.M. came home from school on May 29, 2009. When Vickie ...

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