McGuinn v. Crist, 80-3341
| Decision Date | 01 October 1981 |
| Docket Number | No. 80-3341,80-3341 |
| Parties | Thomas P. McGUINN, Plaintiff-Appellee, v. Roger W. CRIST, Warden of Montana State Penitentiary, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John Maynard, Helena, Mont., for defendant-appellant.
Leonard H. Haxby, Haxby & Sweeney, Butte, Mont., argued, for plaintiff-appellee; Dan Sweeney, Haxby & Sweeney, Butte, Mont., on brief.
Appeal from the United States District Court for the District of Montana.
Before SNEED and BOOCHEVER, Circuit Judges, and CRAIG, * District Judge.
This is an appeal from the grant by the district court of the appellant's second petition for a writ of habeas corpus. We reverse and direct that the petition be denied.
Thomas McGuinn was convicted of committing deliberate homicide on Mrs. LaRae Alley by shooting her four times in the head with a revolver. Appellee McGuinn appealed to the Montana Supreme Court, but his conviction was affirmed and his petition for a rehearing was denied. McGuinn v. State, 177 Mont. 215, 581 P.2d 417 (1978). It was only after his conviction that appellee contested the jury instruction given at his trial. Appellee's challenge was based on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which disapproved the same jury instruction given in appellee's trial, i. e., "The law presumes that a person intends the ordinary consequences of his voluntary acts." The appellee's challenge to this instruction was raised for the first time at his initial petition to the district court for a writ of habeas corpus. That petition was denied without prejudice to enable appellee to exhaust his state remedies. When appellee had exhausted these remedies, the district court granted his second petition for habeas corpus, and found that the contested jury instruction was a violation of due process. McGuinn v. Crist, 492 F.Supp. 478 (D.Mont.1980). The state appealed, and this court has jurisdiction pursuant to 28 U.S.C. § 1291.
A great deal of circumstantial evidence, detailed by the Montana Supreme Court, linked appellee with the commission of the offense. Among other things, it was revealed that appellee had the opportunity to kill the victim. The victim left her home at approximately 8:25 to 8:30 a.m. to deliver gasoline to her husband on Continental Drive. On the same morning appellee left a bar in Butte at approximately 7:30 a.m. His vehicle was seen on the road leading to the scene of the crime at approximately 8:00 a.m. Appellee's vehicle was again seen on the road driving from the scene of the crime toward Butte at a high rate of speed between 8:45 and 8:50 a.m.
The state produced evidence that appellee had the means to murder the victim. A consent search produced a box of bullets which were of the same type as those recovered from the victim. The search also produced a revolver which met the general description of the gun used, but which was not identified as the murder weapon.
In addition, impeaching evidence was given by appellee while testifying on his own behalf. At trial, appellee stated he went to a Mr. Roger's residence on Continental Drive. The state provided a prior statement taken by Sheriff Hagel where appellee denied making any trips on Continental Drive on the day of the shooting. Furthermore, during a swab test to determine the last time appellee fired a gun, he gave four separate stories concerning the last time he fired a gun. The final story was "two days ago," which was the day of the homicide.
Finally, appellee testified he barely knew the victim and had never socialized with her. On the other hand, two other witnesses testified not only that appellee knew the victim, but one of these witnesses even testified to seeing appellee and the victim walking arm-in-arm.
Thus, appellee was placed near the scene of the crime and was shown to have the means to commit the crime. Furthermore, appellee cast doubt on his own plea of innocence by being impeached on topics closely related to his activities surrounding the crime. McGuinn v. State, 177 Mont. 215, 218-20, 581 P.2d 417, 419-20 (1978). Appellee, on the other hand, has maintained his innocence at all stages of the proceedings against him by contending that he was not present when the homicide was committed. The Montana Code § 45-5-102 defines the mental elements of deliberate homicide: "(C)riminal homicide constitutes deliberate homicide if: (a) it is committed purposely or knowingly ...." The question, therefore, that confronts this court is: Could any reasonable juror have found beyond a...
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