State v. Bashor, 14542

• Citation: 37 St.Rep. 1098,614 P.2d 470,188 Mont. 397
• Decision Date: 24 July 1980
• Docket Number: No. 14542,14542
• Parties: STATE of Montana, Plaintiff and Respondent, v. Howard L. BASHOR, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 470

614 P.2d 470

188 Mont. 397

STATE of Montana, Plaintiff and Respondent, v. Howard L. BASHOR, Defendant and Appellant.

No. 14542.

Supreme Court of Montana.

Submitted March 25, 1980.

Decided July 1, 1980.

Dissenting Opinions July 17, 1980.

Rehearing Denied July 24, 1980.

Conner, Baiz & Olson, Great Falls, Dennis P. Conner, argued, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Mary B. Troland, argued, Asst. Atty. Gen., Helena, Marc F. Racicot, argued, Asst. Atty. Gen., Helena, Rae V. Kalbfleisch, argued, County Atty., Shelby, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant Howard L. Bashor appeals from his conviction by a jury in Toole County of the crime of deliberate homicide.

This case arose out of the death of James Hurley. It is undisputed that Hurley died of a gunshot wound and that defendant fired the fatal shot. The parties, however, present conflicting versions of the events which led to Hurley's death.

The State's version is that Hurley, Marian Irgens, Duane Enneberg, and Jeanette Frost visited a bar in Kevin, Montana, on the evening of December 2, 1977. During the evening, Marian Irgens twice observed defendant's car being driven down the street next to the bar. At approximately 1:30 a. m. of December 3, the group decided to leave the bar. As they left, they noticed defendant's car parked a short distance away with the headlights on. They saw William Schaeffer, a friend of defendant, standing in front of the car, hollering at them in a belligerent manner. The four friends began to get into Hurley's car, but the hollering continued. Finally, Hurley and Enneberg started walking in the direction of defendant's car. As Enneberg and Hurley approached, Schaeffer confronted Enneberg in front of the car. Hurley proceeded toward the driver's window. The defendant was sitting in the driver's seat. A few seconds later a shot was heard, and Hurley walked away from the car saying, "I've had it." He died shortly thereafter.

Defendant's version is that he and Schaeffer had noticed Hurley's car at the Kevin bar during the early morning hours of December 3, 1977, and decided not to go inside until Hurley and his friends had left. Hurley approached defendant's car while Schaeffer was still sitting in the passenger's seat of the car. Defendant rolled down his window and at about this time, Schaeffer got out of his side of the car and began to walk around to the front of the car. Meanwhile, Hurley reached into the driver's window and began trying to pull defendant out of the car. Fearing that his eye, which had been operated on the previous summer, would be permanently damaged in a fight, defendant took his gun from the car console and fired at Hurley.

Prior to trial Schaeffer underwent a polygraph examination. His answers were to the effect that Hurley had been the aggressor in the altercation. The operator of the polygraph testified that he was satisfied as to the truthfulness of Schaeffer's answers. The State filed a motion in limine seeking to prohibit defendant from entering or attempting to enter into evidence the polygraph examination. The motion was granted.

The defendant raises nine specifications of error:

1. Whether the trial court erred in denying defendant's motion for change of place of trial?

2. Whether the trial court erred in denying defendant's challenge to the jury panel and in denying defendant's challenge to juror Pettigrew for cause? 3. Whether the trial court erred in failing to properly hear and consider defendant's offer of proof concerning the polygraph examination of witness Bill Schaeffer?

4. Whether the trial court erred in ruling that the examination of Bill Schaeffer was inadmissible as a matter of law?

5. Whether the trial court erred in refusing admission of the polygraph test given Bill Schaeffer?

6. Whether the trial court erred in denying defendant's motion to set aside the verdict because of prejudicial remarks made by the special prosecutor in his closing argument?

7. Whether the trial court erred in permitting the State to place into evidence acts, statements and circumstances occurring prior to December 2, 1977?

8. Whether the trial court failed to fairly and fully instruct the jury on the law of self-defense?

9. Whether the trial court erred in not instructing the jury on the lesser included offenses of mitigated deliberate homicide and negligent homicide?

In the present case the defendant moved for a change of place of trial based on inflammatory pretrial publicity and general bias against him in Toole County. Defendant and the State each submitted affidavits on the matter, and a hearing was held on the motion in District Court. The judge reserved his ruling on the issue pending the outcome of voir dire examination, at the conclusion of which he denied defendant's motion. Defendant contends this denial constituted reversible error.

Section 46-13-203(1), MCA, provides that a defendant "may move for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in such county." A motion for change of venue is addressed to the discretion of the trial court, and a denial is not reversible error in the absence of an abuse of discretion by the trial court. State v. Kirkaldie (1978), Mont., 587 P.2d 1298, 1303, 35 St.Rep. 1532, 1537; State v. Lewis (1976), 169 Mont. 290, 295, 546 P.2d 518, 521. In State v. Board (1959), 135 Mont. 139, 143-144, 337 P.2d 924, 927, this Court said:

"Indicia of this denial of fair trial, resulting from prejudicial publicity, as gleaned from our law, seems to be: Arousing feelings of the community, threat to personal safety of defendant, established opinion of members of the community as to the guilt of the accused, news articles beyond the objectivity of news printing and dissemination, State v. Dryman, 127 Mont. 579, 269 P.2d 796, and difficulty or failure in securing a fair, impartial jury from the community in which the news articles appeared, State v. Davis, supra, 60 Mont. 426, 199 P. 421; State v. Bess, 60 Mont. 558, 199 P. 426.

"Our court looks for a chain reaction. It starts with the basic premise that the accused is entitled to a fair trial. Next it checks the publicity complained of, as to its contents and more important, as to its total effect upon the 'fair trial right.' Further, it looks at effects in the form of the discriminating marks we have discussed. Finally, it objectively considers the end result was a fair trial denied as a result of the publicity and its effects? If its findings are negative it refuses to find abuse of discretion on the part of the trial court."

The news items of which defendant complains consisted of a newspaper article appearing on Friday, December 9, 1977, and a statement on the local radio that was made a day or two after the shooting. The newspaper article had the headline: "Bashor Charged with Deliberate Homicide in Shooting." The first two paragraphs of the article read as follows:

"Shades of the old west were re-enacted at Bert's Bar in Kevin early Saturday morning, when a bar patron was shot down and killed, at about 1:15.

"According to reports, James F. Hurley, 41, was inside the bar when Howard 'Ozzie' Bashor, 56, drove up and sent word inside for Hurley to come outside. Hurley walked outside and was shot down."

Defendant contends that the article insinuates he shot Hurley in cold blood. The State agrees that the article was an incorrect statement of the facts. However, a misstatement of facts in a single newspaper article does not necessarily constitute sufficient grounds to change venue. In State v. Bess (1921), 60 Mont. 558, 199 P. 426, this Court said that newspaper articles may not not be the basis of a change of venue unless the articles ". . . were passionate enough to excite undue prejudice, to the extent of rendering it impossible for an accused to secure a jury free from exception." 60 Mont. at 569, 199 P. at 429. In State v. Sandstrom (1978), Mont., 580 P.2d 106, 35 St.Rep. 744, rev'd on other grounds, Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, this Court said that "(p)ublished accounts of crimes are not considered prejudicial unless so passionate as to excite undue prejudice, rendering it impossible to empanel a trial jury free from prejudice against the defendant." 580 P.2d at 108, 35 St.Rep. at 746.

The article complained of states that the defendant ". . . sent word inside for Hurley to come outside." This is the only statement which is actually contrary to the undisputed facts. The article only appeared once, and this was six months before the trial. To justify a change of venue not only must an article be adverse to the defendant, it must also make it impossible to empanel a fair jury.

During the examination of prospective jurors, each person who eventually sat on the jury stated either that they had not read the article at all or that they could not remember any of the details other than that someone had been shot, or that they could put aside any prejudice and judge the case solely on the evidence presented. The article is not the impassioned type of news item which will justify a change of venue. Under the circumstances the jury could not have been influenced by the article in any event. Consequently, the article did not present a sufficient basis for granting a change of venue.

The radio broadcast of which the defendant complains contained the statement that the victim ". . . was apparently shot as he was leaving a Kevin tavern." The defendant contents that this statement, when taken in conjunction with the newspaper article, suggests that the victim was shot in cold blood.

A reading of the record indicates that Hurley was shot shortly after he left the tavern. Neither party disputes this fact. The radio report was simply a factual report of the homicide. When news accounts are not...