Submitted on Briefs: October 19, 2016
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
Appellant: Nathaniel S. Holloway, Paul T. Ryan, Paul Ryan
& Associates, Missoula, Montana
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,
McGrath, Chief Justice
Markus Hendrik Kaarma (Kaarma) appeals from his December 17,
2014 deliberate homicide conviction by a jury. We affirm.
We restate the issues on appeal as follows:
One: Did the District Court abuse its discretion by
instructing the jury on justifiable use of force in defense
of a person?
Two: Did the District Court abuse its discretion when it
denied Kaarma's motions to change venue based on pretrial
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?
Four: Did the District Court abuse its discretion when it
admitted evidence of Kaarma's prior assault on
Five: Did the District Court abuse its discretion when it
allowed lay opinion testimony regarding blood spatter
AND PROCEDURAL BACKGROUND
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."
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.
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
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.
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,
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, ¶
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.
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, ¶
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.
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
Issue One: Did the District Court abuse its discretion by
instructing the jury on justifiable use of force in
defense of a person?
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.
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.
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
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).
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
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.
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.
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.
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
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.
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
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.
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.
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 ...