State Of Mont. v. Henson
| Citation | 356 Mont. 458,235 P.3d 1274,2010 MT 136 |
| Decision Date | 22 June 2010 |
| Docket Number | No. DA 09-0189.,DA 09-0189. |
| Parties | STATE of Montana, Plaintiff and Appellee,v.Heather Michelle HENSON, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
COPYRIGHT MATERIAL OMITTED
For Appellant: Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender, Helena, Montana.
For Appellee: Hon. Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy County Attorney, Libby, Montana, Kathleen Jenks, Assistant Attorney General, Special Deputy County Attorney for Lincoln County, Montana.
¶ 1 Heather Michelle Henson appeals from her December 17, 2008 conviction of attempted mitigated deliberate homicide. We affirm.
¶ 2 Henson presents the following issues for review:
¶ 3 Issue 1: Whether the District Court erred by excluding evidence of the victim's prior acts.
¶ 4 Issue 2: Whether the District Court erred by excluding testimony from Henson's proposed expert.
¶ 5 Issue 3: Whether the District Court properly instructed the jury concerning the defense of justifiable use of force.
¶ 6 Henson met the victim Larry Kingsley on July 8, 2008, as she was hitchhiking to Kalispell from Noxon. They met in a bar south of Libby and Kingsley offered her a ride into Kalispell. At the time Kingsley was age 67 and had been living in a camp trailer in various public campgrounds in northwestern Montana. Henson was age 19.
¶ 7 Henson told Kingsley she wanted to be a writer and a model, and he offered to help by giving her $2,300 in cash so she could buy a camera and a computer. He also gave her some marijuana and hydrocodone. In Kalispell, Kingsley got a motel room for himself and took Henson to the house of her uncle Noah Powell where she had been living with her boyfriend Stephen Thomas. Henson showed the money and drugs to Powell and Thomas, and Powell advised her to go back to Kingsley and get more. She left the money in Powell's room overnight, and the next morning Powell and the money were gone.
¶ 8 Henson and Thomas then went to Kingsley's motel where Henson introduced Thomas as her brother. Kingsley took them to lunch and then they went shopping. Henson told Kingsley about losing the money and he said they would figure out some way for her to repay him. Kingsley bought Henson clothing, CDs, movies, a CD player, a computer and other items, paying cash. They also visited an adult store where Henson got several lingerie outfits, including one with an Army theme because Kingsley told them he had been a Navy SEAL.
¶ 9 Kingsley, Henson and Thomas then traveled to Kingsley's campsite at Sylvan Lake, located in a remote area 30 miles from Libby, Montana. Henson modeled the outfits from the adult store and after drinking a variety of alcoholic beverages she and Thomas had sex in the trailer while Kingsley watched. Kingsley then had intercourse with Henson.
¶ 10 Meanwhile, Powell told Henson and Thomas to move out of his house, so they went there to retrieve their belongings and took them to Kingsley's trailer at the campground. Kingsley kept a number of firearms at the camp including assault-style rifles and a pistol. The group would fire the guns into the air in what Kingsley said was a salute to his fallen comrades. Despite the fact that Henson fended off Kingsley's suggestions that she again have sex with him, she and Thomas stayed at Kingsley's camp for several days. They drank, shot guns and negotiated about whether Henson would have sex with Kingsley. Kingsley menaced Thomas and others in the campground with his knife and guns, driving other campers out of the area with his threatening behavior. Kingsley eventually told Thomas he would have to choose between Henson, or drugs and money, because he wanted Henson for himself. Kingsley arranged for Thomas and Henson to have sex on a bear rug in the trailer “one last time” before she became Kingsley's.
¶ 11 On July 12 Kingsley again menaced Thomas with his knife and urged Henson to have sex with him. She became angry and Kingsley apologized and gave her a ring he had been wearing. The three then drove to Libby where Henson met her younger brother. Kingsley's behavior in one of the stores they visited was so disturbing that a patron called police and would not leave the store until they arrived. Henson then left with her brother to attend a magic show while Thomas stayed with Kingsley.
¶ 12 Kingsley and Thomas were stopped by police officers who questioned them about Kingsley's guns. Thomas said nothing about needing to get away from Kingsley or about fearing him. Kingsley dropped Thomas off at the magic show and drove by himself back to the campsite. The same officers who stopped Kingsley later saw Henson, Thomas and Henson's brother walking down the street in Libby. The officers talked to them and discussed their situation with Kingsley.
¶ 13 Later, Henson tried to call one of the officers to get a ride back to Kingsley's camp to retrieve their belongings. She could not connect with the officer, who was responding to a fatal traffic accident. Henson and Thomas decided to hitchhike back to Kingsley's campsite and got a ride from a man named Goodrich. They told him they had been staying with Kingsley and needed help to get their possessions and get out.
¶ 14 At the campground they met Kingsley driving out, and he turned around and came back in. After firing a shot overhead, Kingsley offered Goodrich a glass of whiskey that they drank while Henson fixed supper. Kingsley showed off his guns and drank from a jug of whiskey. He told Thomas to shoot the campground outhouse with a shotgun and when Thomas hesitated, Kingsley put a knife to his throat, backed him against a tree and told him to do as ordered.
¶ 15 Goodrich asked Kingsley if he could take Henson and Thomas to Kalispell and Kingsley said he could not let that happen because he was “the master.” Kingsley asked Henson to perform a sex act on Goodrich but she refused. Goodrich told Kingsley he was a sick man and that he was going to leave. Goodrich drove away as Kingsley poked at his tires with the knife.
¶ 16 Kingsley sat by the fire and continued to drink. Henson and Thomas texted each other about what to do, and Henson said she thought they would have to shoot Kingsley to get away. Both Henson and Thomas were armed with rifles that they fired in the air for another of Kingsley's fallen comrade salutes. Henson's rifle jammed and she switched guns with Thomas. As he worked to clear the jam Henson turned and started firing at Kingsley as he sat in the chair with his eyes closed. Her first two shots missed but the third connected and brought Kingsley out of his chair. When Thomas saw Kingsley rise he started firing as well. Both Henson and Thomas emptied their rifles into Kingsley and then Henson emptied the pistol into his body as well.
¶ 17 They covered Kingsley with a tarp, placed the pistol in his hand and drove his truck to Kalispell. They parked the truck at Powell's house and he called police who arrested Henson and Thomas.
¶ 18 On August 1, 2008, the State charged Henson with deliberate homicide, evidence tampering by accountability and theft. The charge was later amended to include an alternative charge of attempted deliberate homicide. 1 Henson gave notice of affirmative defenses of justifiable use of force and compulsion. Henson's jury trial commenced on December 8, 2008 and concluded on December 17. The jury returned a verdict of guilty of attempted mitigated deliberate homicide, and not guilty of tampering and theft. On January 28, 2009 the District Court sentenced Henson to a term of 20 years with 15 suspended.
¶ 19 A district court has broad discretion in determining the relevance and admissibility of evidence. State v. Passmore, 2010 MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229. This Court reviews evidentiary rulings for abuse of discretion, which occurs if the district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Id. We review de novo district court rulings based on interpretation of an evidentiary rule or statute. Id.
¶ 20 A district court has “considerable latitude” to determine the admissibility of proposed expert testimony, and its decision will be overturned only upon a showing of abuse of discretion. State v. Harris, 2008 MT 213, ¶ 6, 344 Mont. 208, 186 P.3d 1263.
¶ 21 This Court reviews jury instructions to determine whether the instructions as a whole fully and fairly instruct on the applicable law. State v. Schmidt, 2009 MT 450, ¶ 26, 354 Mont. 280, 224 P.3d 618. A district court's broad discretion in formulating instructions is reversible only if the instructions prejudicially affect the defendant's substantial rights. Id.
¶ 22 Issue 1: Whether the District Court erred by excluding evidence of the victim's prior acts. Henson sought to introduce evidence that during the month before his death Kingsley had interacted in aggressive and inappropriate ways with campers and others, and particularly that he accosted younger females by talking and acting in a sexually suggestive manner. One of the incidents involved an armed confrontation with another man at a campground that caused the other man to believe that he might have to shoot Kingsley in self defense. None of these incidents involved Henson or Thomas and Henson did not know about them until after Kingsley's death. The District Court granted the State's motion to exclude the evidence.
¶ 23 Henson's contended that the evidence was admissible under M.R. Evid. 404(a)(2) as evidence of a pertinent character trait of the victim. In addition, M.R. Evid. 405(b) provides that where a character trait of a person is an essential element of a defense or where it relates to the...
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