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State v. Kaarma

Supreme Court of Montana

February 8, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
MARKUS HENDRIK KAARMA, Defendant and Appellant.

          Submitted on Briefs: October 19, 2016

         APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2014-252 Honorable Ed McLean, Presiding Judge

          For Appellant: Nathaniel S. Holloway, Paul T. Ryan, Paul Ryan & Associates, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Andrew Paul, Jennifer Clark, Karla Painter, Deputy County Attorneys, Missoula, Montana

          OPINION

          Mike McGrath, Chief Justice

         ¶1 Markus Hendrik Kaarma (Kaarma) appeals from his December 17, 2014 deliberate homicide conviction by a jury. We affirm.

         ¶2 We restate the issues on appeal as follows:

         Issue One: Did the District Court abuse its discretion by instructing the jury on justifiable use of force in defense of a person?

         Issue Two: Did the District Court abuse its discretion when it denied Kaarma's motions to change venue based on pretrial publicity?

         Issue Three: Did the District Court abuse its discretion when it declined to remove a prospective juror for cause based on her marriage to a former police officer?

         Issue Four: Did the District Court abuse its discretion when it admitted evidence of Kaarma's prior assault on Pflager?

         Issue Five: Did the District Court abuse its discretion when it allowed lay opinion testimony regarding blood spatter evidence?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In April 2014, the Missoula, Montana, home Kaarma and his partner Janelle Pflager (Pflager) shared with their infant son was burglarized two times. Each time the burglar entered the garage through the partially open garage door. Concerned about safety, Kaarma and Pflager installed security cameras in and around their garage, changed how they parked their cars, started locking the doors to the house, created a perimeter to discourage entrance into the garage, encouraged their neighbors to do the same, and placed a purse with identifying information in the garage. Kaarma was vocal about his anger regarding the burglaries and his perception that the police were not "dealing with the situation." Several witness testified that Kaarma told them he was "up the last three nights with a shotgun wanting to kill some kids, " that "he was going to shoot [the burglars], " and "he was not kidding, [the witnesses] were going to see this on the news." Witnesses testified that Pflager knew the burglars would come back because "we are going to bait them, " and that their guns were loaded. Kaarma and Pflager testified to "living in fear" about the burglaries and decided to be "a little proactive."

         ¶4 In the early morning hours of April 27, 2014, Kaarma and Pflager were at home. Pflager left the garage door partially open to air out after smoking a cigarette. While inside the home, Kaarma and Pflager saw on the security camera an intruder enter their attached garage. The intruder was well into the garage and "jiggling" the car handles. Kaarma took his shotgun, walked out the front door of the home, turned and stood in front of the partially open garage door. Kaarma testified that he shouted into the garage and a voice or "metal on metal" sound came from inside the garage. He testified he thought he was "going to die, " then "aimed high, " fumbled with the shotgun, and discharged four shots into his garage in a sweeping motion from right to left. Shotgun pellets sprayed the inside garage wall, and several penetrated the home causing damage. The intruder was shot twice, once in the arm and once in the head. The intruder, later identified as Diren Dede, died as a result of his injuries.

         ¶5 Kaarma was charged with deliberate homicide. A trial was conducted in Missoula County beginning on December 1, 2014. The jury found Kaarma guilty of deliberate homicide. On February 12, 2015, the District Court sentenced Kaarma to seventy years in the Montana State Prison. Kaarma appeals. Additional facts specific to Kaarma's arguments are included below.

         STANDARDS OF REVIEW

         ¶6 All of the issues raised by Kaarma invoke an application of the abuse of discretion standard. "A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." Ammondson v. Northwestern Corp., 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1.

         ¶7 We review a district court's decisions regarding jury instructions for an abuse of discretion. Ammondson, ¶ 30. The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Dunfee, 2005 MT 147, ¶ 20, 327 Mont. 335, 114 P.3d 217. The district court has broad discretion in formulating jury instructions. State v. Spotted Eagle, 2010 MT 222, ¶ 6, 358 Mont. 22, 243 P.3d 402. To constitute reversible error, any mistake in instructing the jury must prejudicially affect the defendant's substantial rights. Spotted Eagle, ¶ 6.

         ¶8 We review for abuse of discretion a trial court's ruling on a motion for change of venue. Section 46-13-203(1), MCA; State v. Devlin, 2009 MT 18, ¶ 15, 349 Mont. 67, 201 P.3d 791. In exercising its discretion, the court is bound to uphold the defendant's constitutional right to a trial by an impartial jury. State v. Kingman, 2011 MT 269, ¶ 40, 362 Mont. 330, 264 P.3d 1104. The burden to demonstrate an abuse of discretion is on the party seeking reversal of an unfavorable ruling. Devlin, ¶ 15.

         ¶9 For a court to presume the defendant was prejudiced by pretrial publicity, a defendant must demonstrate that "an irrepressibly hostile attitude pervades the jury pool or that the complained-of publicity has effectively displaced the judicial process and dictated the community's opinion as to the defendant's guilt or innocence." Kingman, ¶ 32. A court can only find presumed prejudice in extreme circumstances amounting to "a circus atmosphere or lynch mob mentality." Kingman, ¶ 32. The bar is very high to prove this assertion. Kingman, ¶ 32.

         ¶10 We review for abuse of discretion a district court's denial of a challenge for cause of a prospective juror. State v. Allen, 2010 MT 214, ¶ 20, 357 Mont. 495, 241 P.3d 1045. When reviewing challenges for cause, a court abuses its discretion if it fails to excuse a prospective juror whose actual bias is discovered during voir dire or whose statements raise serious doubts about the juror's ability to be fair and impartial. State v. Heath, 2004 MT 58, ¶ 7, 320 Mont. 211, 89 P.3d 947; Allen, ¶ 25. Errors in the jury selection process are structural; therefore, reversal is required if the district court abused its discretion by denying the defendant's challenge for cause, the defendant uses a preemptory challenge to remove the juror, and the defendant used all of his preemptory challenges. Heath, ¶ 7.

         ¶11 The Montana Supreme Court reviews a district court's evidentiary rulings for abuse of discretion. State v. Huerta, 285 Mont. 245, 254, 947 P.2d 483, 489 (1997). This includes the admissibility of character evidence. Huerta, 285 Mont. at 254-55, 947 P.2d at 489-90; accord State v. MacGregor, 2013 MT 297, ¶ 44, 372 Mont. 142, 311 P.3d 428. A district court has broad discretion to determine whether evidence is relevant and admissible. State v. Duffy, 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453.

         ¶12 The district court has great latitude in ruling on the admissibility of expert testimony, and the ruling will not be disturbed without a showing of abuse of discretion. State v. Stout, 2010 MT 137, ¶ 59, 356 Mont. 468, 237 P.3d 37.

         DISCUSSION

         ¶13 Issue One: Did the District Court abuse its discretion by instructing the jury on justifiable use of force in defense of a person?

         ¶14 Prior to trial Kaarma notified the court and State he planned to rely on the affirmative defenses of "justifiable use of force in defense of self, others, [and] home, " and proposed jury instructions regarding the same. Kaarma claimed self-defense to the officers responding to the shooting. During his opening statement, Kaarma's attorney argued Kaarma shot because "in his mind he's going to get attacked." Kaarma testified he "believed his life was threatened and he was going to get attacked, " and that he was "fearful, concerned, and angry." The defense provided expert testimony regarding his state of mind and the "imminent fear that was occurring." Kaarma elicited testimony that a person may, depending on the circumstances, protect against a forcible felony in the home, as well as when the person feels his or her life is in danger. He elicited testimony from witnesses regarding the reasonableness of defending oneself.

         ¶15 At the jury instruction settlement conference, Kaarma argued the only affirmative defense raised at trial was use of force in defense of an occupied structure and objected to the justifiable use of force in defense of a person and the use of force by aggressor jury instructions. He argued that § 45-3-102, MCA, defense of person, requires a commensurate response to the nature of the threat, where defense of an occupied structure only requires the actor's reasonable belief that the use of force was necessary to terminate the unlawful entry. Counsel asserted the defendant "gets to pick which justifiable use of force [theory, he] wants to proceed under." The State objected, arguing Kaarma was not inside the occupied structure when he used deadly force and therefore the defense of an occupied structure instruction does not apply.

         ¶16 The District Court determined the State "has the right to have the justifiable use of force in defense of self" instruction given based on Kaarma's arguments that he was in fear he was about to be assaulted or killed outside of his home. Both defense of an occupied structure and defense of person jury instructions were given. The District Court directed jurors to look at the two types of defenses separately and determine which applied based on the elements of each.

         Discussion

         ¶17 Under Montana law a person is justified in the use of force in three primary situations: § 45-3-102, MCA (defense of person), -103 (defense of occupied structure), and -104 (defense of other property-not applicable here).

         ¶18 Section 45-3-102, MCA, justifies a person to use force against another when the person reasonably believes that the conduct is necessary for self-defense against another's imminent use of unlawful force. That person is only justified to use force likely to cause death or serious bodily harm if the person reasonably believes it is necessary to prevent imminent death or serious bodily harm or to prevent a forcible felony.

         ¶19 Section 45-3-103, MCA, justifies a person to use force against another when the person reasonably believes it is necessary to prevent or terminate the other person's unlawful entry into or attack upon an occupied structure. That person may be justified to use force likely to cause death or serious bodily injury if, after entry is made or attempted into the occupied structure, the person reasonably believes force is necessary to prevent an assault upon himself or another in the structure, or the person reasonably believes that the force is necessary to prevent the commission of a forcible felony in the occupied structure.

         ¶20 Justifiable use of force, where a defendant admits to the act but seeks to justify, excuse, or mitigate it, is an affirmative defense. State v. Erickson, 2014 MT 304, ¶ 25, 377 Mont. 84, 338 P.3d 598. The initial burden is on the defendant to produce evidence of justifiable use of force. Erickson, ¶ 25.

         ¶21 Once a defendant offers justifiable use of force evidence, the State has the burden to prove beyond a reasonable doubt the defendant's actions were not justified. Section 46-16-131, MCA. In order to meet the initial burden of production, a defendant must do more than give notice of intention to use the defense. State v. Daniels, 2011 MT 278, ¶¶ 15-16, 362 Mont. 426, 265 P.3d 623; State v. R.S.A., 2015 MT 202, ¶¶ 35-37, 380 Mont. 118, 357 P.3d 899; § 45-3-131, MCA.

         ¶22 Kaarma contends he raised only justifiable use of force in defense of an occupied structure at trial and based on the evidence presented at trial only a justifiable use of force in defense of an occupied structure jury instruction should have been given. Kaarma concedes he did put the District Court and State on notice of his intent to use justifiable use of force in defense of a person, but asserts that is not enough to instruct the jury on that defense. Kaarma argues this was an abuse of discretion by the District Court, if not a violation of his right to control his defense pursuant to the Sixth Amendment of the United States Constitution. We disagree.

         ¶23 A defendant is not bound to rely on his or her affirmative defense proposals at trial. Daniels, ¶ 16 (citing City of Red Lodge v. Nelson, 1999 MT 246, ¶ 13, 296 Mont. 190, 989 P.2d 300; State v. Logan, 156 Mont. 48, 65, 473 P.2d 833, 842 (1970)). If the defense fails to present sufficient evidence regarding justifiable use of force, the defense fails. Daniels, ¶ 15. However, the district court must instruct the jury on theories and issues that are supported by evidence presented at trial. State v. King, 2013 MT 139, ¶ 25, 370 Mont. 227, 304 P.3d 1.

         ¶24 The record is clear. During trial Kaarma argued that he shot into the garage, killing Dede, because of the "metal on metal" sound coming from the garage and that sound made him fear for his own life. Without any other evidence, Kaarma's own words gave rise to his justifiable use of force in defense of self-argument and the eventual jury instruction. Moreover, Kaarma proposed jury instructions for defense of self; he elicited expert testimony on his state of mind and "imminent fear" he felt standing at the garage, and elicited testimony regarding when it may be reasonable to use deadly force in defense of self. Kaarma gave notice that he planned to invoke both the affirmative defenses of justifiable use of force in defense of a person and defense of an occupied structure, and at trial he provided evidence to support both theories. Once Kaarma offered justifiable use of force evidence, the State's burden was to prove his actions were not justified. Section 46-16-131, MCA.

         ¶25 The district court must instruct the jury on theories and issues that are supported by evidence presented at trial; therefore, when conflicting evidence is presented, the district court must provide jury instructions on both theories supported by the evidence. King, ¶¶ 23-25. A trial court does not abuse its discretion in giving an instruction if it is "supported by either direct evidence or some logical inference from the evidence presented." Erickson, ¶ 35; State v. Hudson, 2005 MT 142, ¶ 17, 327 Mont. 286, 114 P.3d 210.

         ¶26 Kaarma argues upholding the jury instructions as given will override legislative intent. We are not convinced. Kaarma cites no Montana authority for his argument. Montana jurisprudence clearly holds that "the trial judge is under a duty to instruct the jury on every issue or theory finding support in the evidence, and this duty is discharged by giving instructions which accurately and correctly state the law applicable in a case." Erickson, ¶ 35; King, ¶ 25. By instructing the jury based on the evidence, the District Court was upholding its duty.

         ¶27 The instructions given were a full and fair instruction on the applicable law of the case. The district court is entitled to broad discretion formulating and approving jury instructions. Spotted Eagle, ¶ 6. Here, the District Court provided jury instructions, which were supported by either direct evidence or some logical inference from the evidence presented at trial. Erickson, ¶ 35; Hudson ...


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