State v. Azure

• Decision Date: 12 February 2002
• Docket Number: No. 98-186.,98-186.
• Citation: 2002 MT 22,41 P.3d 899,308 Mont. 201
• Parties: STATE of Montana, Plaintiff/Respondent, v. Donald AZURE, Defendant/Appellant.
• Court: Montana Supreme Court

41 P.3d 899

2002 MT 22

308 Mont. 201

STATE of Montana, Plaintiff/Respondent, v. Donald AZURE, Defendant/Appellant.

No. 98-186.

Supreme Court of Montana.

Submitted on Briefs August 9, 2001.

Decided February 12, 2002.

For Appellant: Lawrence A. LaFountain, Belgrade, MT.

For Respondent: Mike McGrath, Montana Attorney General, Jennifer Anders, Assistant Montana Attorney General, Helena, MT; Brant S. Light, Cascade County Attorney, Great Falls, MT.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 In February, 1997, Donald Azure (Azure) was charged with deliberate homicide, attempted deliberate homicide, and criminal mischief, a misdemeanor. A jury found Azure guilty of deliberate homicide of John Cavill; mitigated attempted deliberate homicide of Lois Cavill; and criminal mischief, a misdemeanor. Azure's motion for a new trial or modified verdict was denied, and the District Court sentenced Azure to 110 years for deliberate homicide with the use of a weapon, 12 years for mitigated attempted deliberate homicide with the use of a weapon, and 6 months for criminal mischief, with all sentences to run consecutively. Azure appeals the court's denial of his motion for a modified verdict, and alleges improper jury impanelment procedure and prosecutorial misconduct. We affirm.

¶ 2 We restate the issues as follows:

1. Whether Azure's allegation of an unlawful jury impanelment may be reviewed on direct appeal, when no objection was raised at trial;

2. Whether Azure's allegations of prosecutorial misconduct may be reviewed on appeal, when no objection to the conduct was raised at trial; and

3. Whether the District Court erred when it denied Azure's motion for a modified verdict.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 Azure and Lois Cavill (Lois) were married in 1981. According to Lois, the marriage began to deteriorate when Azure started drinking, and in 1987, she filed for divorce following an incident when Azure threatened to kill her. Lois later withdrew the papers upon promises by Azure to stop drinking. In December of 1996, Azure was drinking again and because she felt threatened, Lois obtained a restraining order to keep Azure away from her. However, Azure violated the restraining order on January 6, 1997, when he broke into Lois' residence and was waiting on the couch when Lois came home. Azure pointed a gun at Lois, and he told her that he had one shell in the chamber for her and one for him. Lois convinced Azure she would not leave him, and that she would help him. Azure stayed at the house that night, and the couple met with a marriage counselor the next day. However, Lois decided to go through with divorce proceedings after Azure accused her of having an affair. Lois left the residence on January 13, 1997, and went to Plains, Montana, to stay with her brother, Fred Cavill (Fred). According to Fred, when Azure later called for Lois at his house, Azure told him that if he couldn't talk to Lois, Azure would blow her head off, burn her house down, and shoot himself.

¶ 4 On February 3, 1997, the couple reached a property settlement in their divorce; Azure received $5,500.00, the van, and his truck, while Lois received the house and a truck. Lois' brother John Cavill (John) came to Great Falls to help Lois pack her belongings and move to Plains. On February 13, while Lois and John were packing her things, Lois observed Azure's van drive by the house several times. Several neighbors also observed Azure's van in the area that day.

¶ 5 Later on February 13, at approximately 8:30 p.m., a prospective buyer for Lois' house, Kathy Carson (Carson), discovered the front tires of her truck and the rear tires of John's truck had been slashed with a large knife while she was looking at the house. Carson, a local police officer, was off duty at the time. After learning about Lois' estranged relationship with Azure and past incidents of threatening behavior by Azure, Carson arranged to have a patrol officer periodically check on the residence.

¶ 6 At approximately 8:58 p.m., Great Falls City Police Officer, Steven Pre'tat (Pre'tat), responded to the call regarding the slashed tires. After Pre'tat examined the tires, Lois showed him a note that Azure had written to her that read: "Tell me something or it could be bad. I love you. I don't want trouble." Pre'tat looked for Azure's van in the area, but did not locate it. Pre'tat informed Great Falls Police Officer Doug Otto (Otto) of the situation, and advised him to look for Azure in the area, since Otto was scheduled for the night shift.

¶ 7 Shortly after 10:00 p.m., a neighbor who lived just down street from Lois' house observed Azure's van slowly drive up in front of her house without its lights on. The van was parked for about ten or fifteen minutes and then proceeded towards Lois' residence.

¶ 8 About this same time, police officer Otto came on shift and proceeded to check on Lois' residence. When he arrived, Otto observed Azure's van parked in front of Lois' house, but could not see anyone around the vehicle. The officer positioned his patrol car so he could observe the residence and turned his headlights off. While Otto was parking his patrol car, he heard a gunshot and saw a muzzle flash, and then immediately heard two more shots.

¶ 9 At approximately 10:20, p.m., Lois was in the back bedroom when she heard John holler something about trouble, and as she ran towards the kitchen, she heard the first shot. Lois called to John but he did not respond. Lois grabbed a gun to try and protect herself, but while she was loading a shell, the gun jammed. Lois then heard another shot and hid behind some boxes in the dining room area. When Lois reached up to shut off the lights, she saw John lying in the kitchen, and then looked out of the window and saw Azure in his van with Otto's patrol car right behind it.

¶ 10 After the shots, Otto called for back-up and then observed a man, later identified as Azure, get into the van and drive off. With his lights and siren activated, Otto pursued the van for several minutes, observing the van fail to stop at stop signs and stop lights. Other law enforcement officers joined the pursuit and at one point, threw a stop stick in front of Azure's van. Although the stick punctured a tire on the van, Azure continued to drive. Eventually Azure stopped his van at a local bar, where he got out and walked toward the bar. Azure was sprayed with pepper spay and then subdued by Otto and another officer. Otto then arrested Azure and Great Falls City Police Officer John Cathell (Cathell) advised him of his Miranda rights. Otto and Sergeant John Cameron (Cameron) testified that Azure did not appear agitated or emotionally upset at the time of his arrest. Cameron testified that when he looked inside Azure's van, he observed a bolt action rifle lying between the van's front seats.

¶ 11 While Azure was being pursued, several Great Falls City Police officers and detectives responded to Lois' residence. Upon entering the house, officers observed John lying dead on the kitchen floor, with a massive gunshot wound to his left eye. His feet were underneath the kitchen sink kick board, and the officers observed one bullet hole in the kitchen window, which was positioned above the sink. According to Detective William Bellusci (Bellusci), John was standing in front of the kitchen window and leaning towards the sink when he was shot. The officers also observed two bullet holes in the dining room window.

¶ 12 Two shell casings matching Azure's rifle were found on the lawn, while a third was found on the van's floor on the passenger's side. The rifle between the seats of Azure's van was a .270, and a partially full box of .270 ammunition was found in the van. The scope affixed to the rifle was set for close range, for shooting a distance of 25 to 30 feet. Detective Bellusci testified that when looking through a scope at a window that was lit up at night, the light would silhouette anything within the house.

¶ 13 After his arrest, Otto transported Azure to the police department where he waited in a holding cell. Otto testified that Azure did not appear emotionally upset in the holding cell, nor did Otto observe anything unusual about Azure's behavior. While in the cell, Azure initiated a conversation with Cathell who informed Azure of his Miranda Rights again. However, Azure continued to converse with Cathell, stating, "I'm in the process of getting divorced right now and this is what this is all about." However, Azure also stated that he didn't remember anything, saying, "The only thing I remember is I'm driving down the street and a bunch of cops behind me;" but then asked, "Did I run over somebody or what?" Soon after, Azure states again that this all about the divorce, and adds, "I went and got drunk. I don't know what happened," and then, "I'll be sixty years old pretty soon, and I can't believe I did something like that." However, Azure again refers to hurting someone: "Boy! I hope nobody got hurt. Shit! That would really bum me out if somebody got hurt. Did I get in a wreck or what?" Finally, Azure also said, "I can't believe I'd do something like this. And I don't even know what I did."

¶ 14 Shortly after his last statement, while still in the holding cell, Azure complained of chest pain, but told the paramedics that he drank all night and added, "I don't think I'm having a heart attack." During the transportation to the hospital, Azure voluntarily told Officer Cathell, "God, I hope I didn't hurt anyone too bad. If I did, I hope I have a heart attack." Azure was treated and released and eventually transported to the County Jail. While being booked at the jail, Azure voluntarily said to the booking officer, several times, "I can't believe I shot him." According to the officer, Azure blurted out, "What makes a man shoot someone like I did?" and "All of this happened because of the divorce." The booking officer testified that at the time he...