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State v. Cunningham

Supreme Court of Montana

March 21, 2018

STATE OF MONTANA, Plaintiff and Appellee,
WILLIAM EARL CUNNINGHAM, Defendant and Appellant.

          Submitted on Briefs: January 24, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 14-640 Honorable Mary Jane Knisely, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Jennifer Hurley, Assistant Appellate

          For Appellee: Scott D. Twito, Yellowstone County Attorney, Billings, Montana



         ¶1 A jury in Montana's Thirteenth Judicial District Court, Yellowstone County, found William Earl Cunningham guilty of deliberate homicide committed with a dangerous weapon. The District Court sentenced Cunningham to Montana State Prison for eighty years. Cunningham appeals. We reverse and remand for a new trial.

         ¶2 Cunningham raises four issues on appeal. We restate the dispositive issue as:

         Whether the District Court made numerous erroneous rulings amounting to cumulative error and requiring reversal.


         ¶3 During the evening of August 1, 2014, Cunningham joined his friend and neighbor Lena Heller at a picnic table outside of their apartment building in Laurel, Montana. Heller introduced Cunningham to her friend and former co-worker, Nathan Horn. Cunningham, Heller, and Horn sat at the picnic table drinking alcohol and socializing for several hours, joined eventually by another neighbor, Stephanie See. At some point, the military came up as a topic of conversation. The conversation devolved into an argument between Cunningham, a disabled, 63-year-old United States Army veteran, and Horn, a 40-year-old United States Marine Corps veteran, about which branch of the military was better. The argument intensified, but then ended abruptly when See invited Cunningham away from the picnic table and into her apartment.

         ¶4 The following morning, Horn apologized to Cunningham for arguing with him. That evening, August 2, 2014, Heller again invited Cunningham to come join her and Horn to drink and socialize at the picnic table. Cunningham initially declined the invitation, but subsequently accepted and joined Heller and Horn. Cunningham and Horn drank heavily, passing a bottle of Southern Comfort whiskey back and forth until both were drunk. Horn was so intoxicated that at one point he fell backwards off the picnic bench he was sitting on and onto the ground. Horn and Cunningham reconvened their argument about the military, the various attributes of the Army versus the Marine Corps, and continued this interaction throughout the evening. Meanwhile, Heller interacted with her smartphone- checking her social media accounts, text messaging, and making phone calls.

         ¶5 After hours of drinking and arguing, Horn and Cunningham's argument intensified and the two began hitting each other on the shoulder. Heller became concerned and asked Horn and Cunningham to stop arguing, but they refused. Heller took the bottle of alcohol away and threw it into a nearby dumpster. Next, Heller, through phone calls and text messages, urged Horn's nephew to come over and help her defuse the escalating argument she described as "aggressive" and "out of control." In progressively more urgent text messages, Heller told Horn's nephew that Horn was "really drunk" and asked him repeatedly to "hurry" because she "need[ed] help."

         ¶6 Before Horn's nephew arrived, Cunningham used the folding knife he customarily carried in a holster around his waist to cut Horn's throat, severing his left carotid artery and jugular vein. Horn was unarmed. Heller looked up from her smartphone to see Horn lying face-up on the ground with his legs draped over the overturned bench he had been sitting on and Cunningham above Horn with his knife in his hand. Cunningham told Heller to call 9-1-1 for an ambulance, which she did. Laurel Police Officer Jeremiah Johnson responded first. When he arrived, Officer Johnson saw Horn lying on the ground bleeding profusely from his neck and surrounded by a pool of blood. Cunningham stood nearby and Officer Johnson overheard him say, "You don't hit me" and "He's dead." Officer Johnson administered first aid to Horn until the ambulance arrived to transfer Horn to a medical facility; however, Horn died from blood loss during transport.

         ¶7 Officer Johnson arrested Cunningham and, after Cunningham waived his Miranda rights, conducted an initial interview. Officer Johnson paused the interview and conducted a breath analysis. Cunningham's alcohol concentration, taken less than two hours after his altercation with Horn, was 0.217. The State charged Cunningham by Information with deliberate homicide, § 45-5-102, MCA, and a weapons enhancement, § 46-18-221, MCA. Cunningham provided timely notice he would rely on the defense of justifiable use of force provided in § 45-3-102, MCA. The District Court held a jury trial March 23-27, 2015. There were multiple objections and evidentiary rulings throughout the trial. The jury convicted Cunningham of deliberate homicide committed with a dangerous weapon and the District Court sentenced him to Montana State Prison for eighty years. Cunningham appeals.


         ¶8 We review evidentiary rulings for an abuse of discretion. State v. Hardman, 2012 MT 70, ¶ 8, 364 Mont. 361, 276 P.3d 839. We also review rulings on motions to interrogate the jury for an abuse of discretion. State v. Kirkland, 184 Mont. 229, 242-43, 602 P.2d 586, 594 (1979) (holding the district court did not abuse its discretion by denying defendant's motion to poll the jury about its potentially prejudicial exposure to a mid-trial news release). A district court abuses its discretion if it ...

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