State v. Lackman

• Decision Date: 30 May 2017
• Docket Number: DA 15-0124
• Citation: 387 Mont. 459,395 P.3d 477
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jeffrey Bruce LACKMAN, Defendant and Appellant.
• Court: Montana Supreme Court

387 Mont. 459

395 P.3d 477

STATE of Montana, Plaintiff and Appellee,

v.Jeffrey Bruce LACKMAN, Defendant and Appellant.

DA 15-0124

Supreme Court of Montana.

Submitted on Briefs: April 19, 2017

Decided: May 30, 2017

For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Eileen Joyce, Silver Bow County Attorney, Samm T. Cox, Deputy County Attorney, Butte, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 A Silver Bow County jury convicted Jeffrey Lackman of deliberate homicide after he shot Mark Partelow, an acquaintance, in the head following a brief fight in Butte, Montana. Lackman raises three issues on appeal, which we restate as follows:

1. Whether the District Court abused its discretion in instructing the jury on Lackman's justifiable use of force defense.

2. Whether the prosecutor's comments regarding Lackman's failure to tell police his self-defense story constitute plain error.

3. Whether the prosecutor's misstatement of the legal elements for justified use of lethal force constitutes plain error.

¶2 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Partelow and Lackman got in a fight when Lackman went to Partelow's home to pick up some personal belongings. Partelow punched Lackman two or three times before Lackman pulled out his gun and shot him.

Lackman fled the scene with his girlfriend and another friend, Juan Jose Romero. Lackman wiped the gun down and Romero hid the gun north of Butte. Everyone involved had been using methamphetamine.

¶4 A highway patrol trooper arrested Lackman near Roundup the next night after stopping a car in which Lackman was a passenger. Two officers transported Lackman back to Butte. The officers did not interrogate Lackman during the transport, but Lackman asked them how difficult it would be to prove self-defense. The record does not reflect whether Lackman had received Miranda warnings.

¶5 Lackman gave notice prior to trial of his intent to raise the affirmative defense of justifiable use of force. He testified at trial that he shot Partelow in self-defense. Lackman stated that he had heard stories about Partelow "pulling knives on people" and beating them "really severely, even to the point of death." He testified further that he was scared during the fight because he thought Partelow was going to "kill me or at least severely beat me." During cross-examination, the State questioned Lackman about his self-defense story and asked if he had told anyone that "story until today." There was no objection.

¶6 Lackman requested that the jury be instructed that lethal force could be used "to prevent the commission of a forcible felony." Section 45-3-102, MCA. The District Court refused this instruction. The court reasoned that there was no evidence presented of a forcible felony "other than the attack on Mr. Lackman personally," and that the instruction proposed by the State adequately addressed that offense. The court reasoned further that Lackman's instruction could potentially confuse the jury. The court instructed the jury that a person is justified in the use of deadly force "only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself."

¶7 In her closing argument, the prosecutor repeated the law of justifiable use of force as given in the jury instruction. The prosecutor then stated that a person has "to have a reasonable belief that your life is in jeopardy to be able to take someone else's and be justified in doing so." Defense counsel did not object. Instead, she used her closing argument to correct the prosecutor's misstatement of the law. She emphasized, "We don't have to let ourselves get beat up and get serious bodily injury" in order to be justified in the use of force. The jury convicted Lackman. The District Court sentenced him to ninety years in prison. Lackman appeals.

STANDARDS OF REVIEW

¶8 This court reviews for correctness the legal determinations a lower court makes when giving jury instructions, including whether the instructions, as a whole, fully and fairly instruct the jury on the applicable law. State v. Carnes , 2015 MT 101, ¶ 6, 378 Mont. 482, 346 P.3d 1120. District courts are given broad discretion when instructing a jury; reversible error occurs only if the instructions prejudicially affect a defendant's substantial rights. Carnes , ¶ 6. A district court's decision on jury instructions is presumed correct, and the appellant has the burden of showing error. Carnes , ¶ 6.

¶9 This Court may discretionarily review claimed errors that implicate a criminal defendant's fundamental constitutional rights, even if no contemporaneous objection is made, under plain error review. State v. Godfrey , 2004 MT 197, ¶ 22, 322 Mont. 254, 95 P.3d 166. We exercise plain error review where failing to review the claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process. Godfrey , ¶ 22. We use our inherent power of common law plain error review sparingly, on a case-by-case basis, and only in this narrow class of cases. Godfrey , ¶ 22.

DISCUSSION

¶10 1. Whether the District Court abused its discretion in instructing the jury on Lackman's justifiable use of force defense.

¶11 The District Court submitted three instructions to the jury on justifiable use of force. Instruction No. 22 provided:

A person is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.

However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.

Instruction No. 23 provided:

If the Defendant has offered evidence of justifiable use of force, the State has the burden of proving beyond a reasonable doubt that the Defendant's actions were not justified.

If you find that he/she has offered evidence of justifiable use of force, but that the State has failed to prove beyond a reasonable doubt that the Defendant's actions were not justified, you must find the Defendant not guilty.

And Instruction No. 24 provided:

The Defendant has offered evidence of justifiable use of force in this case. You are to consider the following requirements of the law in determining whether the use of force claimed by Defendant was justified:

[1] The danger of harm to the Defendant must be a present one and not made by a person without the present ability to carry out the threat;

[2] The force threatened against the Defendant must be unlawful;

[3] The Defendant must actually believe that the danger exists, that is, use of force is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;

[4] The Defendant's belief, in each of the aspects described, must be reasonable even if it is mistaken.

[5] A person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat, or summon law enforcement assistance prior to using force.

Even if you determine the use of force by Defendant was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt.

¶12 Lackman takes issue with Instruction No. 22. He points out that § 45-3-102, MCA —upon which the instruction is based—justifies the use of lethal force "where a defendant reasonably believes that the force is necessary either to prevent death or serious bodily harm or to prevent a forcible felony." Lackman also observes that § 45-3-101(2), MCA, in turn, defines a "forcible felony" as "any felony which involves the use or threat of physical force or violence against any individual." Lackman asserts that both aggravated assault (§ 45-5-202(1), MCA ) and assault with a weapon (§ 45-5-213(1), MCA ) are forcible felonies that can be accomplished by creating a "reasonable apprehension of serious bodily injury."

¶13 Lackman thus argues that under the forcible felony provision of § 45-3-102, MCA, "a person can be legally justified in the use of lethal force to prevent an attacker from creating reasonable apprehension of serious bodily injury ... even if actual serious bodily injury is not imminent." Because Lackman's use of force was the main question at trial, and under his reading the forcible felony standard "is a more expansive standard for justified use of lethal force than requiring imminent serious bodily injury," Lackman argues that the District Court "misstated the law and lessened the State's burden to prove that [his] force was not justified." Lackman asserts that the District Court therefore abused its discretion by not including "forcible felony" in Instruction No. 22.

¶14 In exercising its "broad discretion in formulating jury instructions," a district court "must instruct the jury on each theory which is supported by the record." State v. Archambault , 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698. This does not mean, however, that a defendant is "entitled to have the jury instructed on every nuance of his or her theory of the case." Archambault , ¶ 25. We will thus uphold jury instructions so long as the instructions "fully and fairly instruct the jury regarding the applicable law." Archambault , ¶ 25. The applicable law here begins with § 45-3-102, MCA. It provides:

A person is justified in the use of force or threat to use force against another when and to the extent that the person reasonably believes that the conduct is necessary for self-defense or the defense of another against the other person's imminent use of unlawful force.

...