State v. Azure

• Decision Date: 16 March 1979
• Docket Number: No. 14191,14191
• Citation: 591 P.2d 1125,36 St.Rep. 514,181 Mont. 47
• Parties: STATE of Montana, Plaintiff and Respondent, v. Robert Leonard AZURE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1125

591 P.2d 1125

181 Mont. 47

STATE of Montana, Plaintiff and Respondent, v.Robert Leonard AZURE, Defendant and Appellant.

No. 14191.

Supreme Court of Montana.

Submitted Jan. 30, 1979.

Decided March 16, 1979.

Jackson & Kelly, Gregory A. Jackson, argued, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Allen B. Chronister, Asst. Atty. Gen., argued, Charles A. Graveley, County Atty., argued, Helena, for plaintiff and respondent.

HASWELL, Chief Justice.

DefendantRobert Azure was convicted of the crime of attempted deliberate homicide following a jury trial in the District Court of Lewis and Clark County.He appeals from the judgment of conviction, denial of his motion for a new trial, and denial of his motion for entry of a judgment of acquittal.

The events forming the basis of this case occurred in and around the Corner Pocket-Diggins night spot in Helena during the evening of June 10, 1976.

Defendant and his friend Wayne Babcock drove to the Corner Pocket in Babcock's pickup after work that day.They ate supper and began drinking.While defendant played the amusement machines and visited with the disc jockey, Babcock apparently continued drinking heavily.Defendant did not see much of Babcock during the evening prior to the alleged crime, except for occasional glimpses from time to time.

During the evening Babcock became extremely intoxicated and began to pick fights with Mel Hargrove, a patron who was a much larger man.Babcock initiated some confrontations with Hargrove and was badly beaten on each occasion.Defendant had no knowledge of these events.

At about 10:00 p. m. Azure decided to go home and began looking for Babcock, his ride.His search was unsuccessful so he called his cousin who agreed to pick him up.During this call, defendant noticed a crowd outside which, unknown to him, was witnessing one of the fights between Hargrove and Babcock.After the phone call, defendant went outside where he first saw that Babcock, who was severely beaten and extremely drunk, was involved in the altercation.Moments later defendant saw Hargrove strike Babcock in the face knocking him to the ground.

From this point on, the evidence is conflicting as to what happened.

Defendant's version is that the assembled crowd was very hostile both to Babcock and him and became even more hostile as he approached Babcock.Defendant began looking for something to use to intimidate the crowd and permit Babcock to escape.Finding nothing nearby, defendant ran to Babcock's locked pickup, broke a wing window, and obtained a pistol from the glove compartment.

According to Azure, he then attempted to disperse the crowd by backing Hargrove, the apparent crowd leader, against a car by pointing the pistol at him.At that time Babcock had regained consciousness and while struggling to get up, fell against defendant.Hargrove grabbed for the pistol and a struggle ensued.During the struggle between Hargrove and the defendant, the pistol discharged and a bullet struck Hargrove in the chest.

Immediately thereafter Azure was apprehended and beaten by the crowd.Later he was taken to the police station, cleaned up, and photographed.In the meantime Hargrove had been rushed to the hospital where he was successfully treated for a gunshot wound to the heart.

The State's evidence differs in certain particulars.According to the State, Hargrove, who had struck Babcock only once, was attempting to leave the scene when defendant returned with the pistol.The State's evidence indicated that Hargrove was not assaulting or threatening Babcock at that time but had already returned to the bar and was leaving the area.When confronted by defendant, Hargrove neither said or did anything menacing or insulting, but on the contrary simply raised his hands and backed away.

According to the State, defendant pointed the pistol at Hargrove, backed Hargrove up to where the fight had occurred, and asked Hargrove if he thought he was tough.The State contends that at the time the pistol was discharged, defendant had pulled free from Hargrove and there was no discharge during any struggle.

Prior to the trial, defendant had been arraigned on the charge of attempted deliberate homicide and had entered a plea of "not guilty".Defendant had given notice of his intent to rely on the defense of justification.Defendant had filed a motion in limine to preventthe State from introducing evidence of a prior conviction.

At the trial, Azure's defense focused on two interrelated propositions: (1) that his acts and conduct were justified in defense of himself, Babcock or both, and (2) that the shooting was accidental or caused by the intervention of a third person.

Defendant raises eight specifications of error in this appeal:

1.Denying admission in evidence of a photograph showing defendant's physical condition after he was taken in custody.

2.Admission of testimony regarding the victim's physical condition following the shooting.

3.Denial of due process to defendant by the State's knowing use of false and perjured testimony at the trial.

4.Refusal of defendant's proposed jury instructions Nos. 5, 19, 12 and 17.

5.Sufficiency of the evidence to support the conviction.

6.Denial of defendant's motion in limine to preventthe State from introducing evidence of defendant's prior conviction.

7.The County attorney's question to defendant suggesting that defendant had been involved in prior unrelated altercations.

8.The constitutionality of statutes under which defendant was charged, convicted and sentenced.

At the trial defendant sought admission in evidence of two police station photographs of defendant after he was taken into custody.One exhibit contained two photographs of defendant's back from the waist up; the other exhibit was two photographs of defendant's face.The District Court ruled one set of photographs admissible in evidence and the other inadmissible.There is no indication in the record that the photographs ruled admissible were subsequently offered or received in evidence.

Aside from this inconsistency in defendant's position, the excluded photographs were properly denied admission in evidence.The test of admissibility of such a photograph is whether its probative value is substantially outweighed by its prejudicial effect.State v. Rollins(1967), 149 Mont. 481, 428 P.2d 462.We note that the trial here was conducted prior to the effective date of the Montana Rules of Evidence.SeeMont.R.Evid. 403 and Commission Comments.

In this case there is a dispute concerning the relevance of this evidence to show the crowd's hostility and thus the reasonableness and justification of defendant's acts and conduct.Assuming without deciding that the photographs were relevant, we hold that their relevance was substantially outweighed by their prejudicial effect.We note that testimonial evidence was admitted showing defendant's injuries after his beating by the crowd.The excluded photographs, while depicting these injuries more graphically than words, were prejudicial in attempting to inject an improper and unwarranted emotional impact into the case.

We have previously stated this principle in the following language; "Photographs that are calculated to arouse the sympathies of the jury are properly excluded, particularly if they are not substantially necessary or instructive to show material facts or conditions."State v. Bischert(1957), 131 Mont. 152, 308 P.2d 969.The photographs here had the potential of improperly swaying the jury on the question of its relevance to defendant's justification for the shooting, the reasonableness of his conduct, and the issues in the case.The District Court did not abuse its discretion in excluding the photographs.

Defendant assigns as error the admission of testimonial evidence concerning the wound and physical condition of the victim, Mel Hargrove.Defendant's objection to this testimony is based on its alleged inflammatory nature.

The admissibility of this evidence is likewise to be determined by weighing its probative value against its prejudicial effect.The rationale of Bischert and Rollins is as applicable to oral testimony as it is to photographic evidence.Here the oral testimony described a severe wound to the heart.Such testimony is relevant and probative to establishing an intent to kill, an element of the crime of attempted deliberate homicide.Sections 94-4-103 and 94-5-102, R.C.M. 1947, now respectively sections 45-4-103and45-5-102 MCA.Its probative value clearly outweighs any prejudicial effect of this testimony.

Defendant next contends that the State knowingly used false and perjured testimony against him at the trial thereby denying him due process.Our review of the record indicates otherwise.

The State introduced the evidence of three eyewitnesses who testified that defendant had Hargrove struggled, defendant pulled free, and defendant shot Hargrove.Defendant sought to impeach their testimony with prior inconsistent statements in police reports which quoted these witnesses as saying the shot was fired during the struggle.According to defendant, this indicates the State knowingly used false and perjured testimony to convict him.We disagree.

The testimony at the trial consisted of more detailed descriptions of the shooting than the general statements the witnesses gave to the police.Any variance in their testimony amounts to no more than an inconsistency which they explained during their testimony.The jury resolved any consistency in their testimony by its verdict.Apparently the jury did not consider any inconsistencies sufficient to raise a reasonable doubt of defendant's guilt.The record simply does not support the allegation that the witnesses testimony at the trial was either false or perjured, much less that the State knowingly used false or perjured testimony.

Defendant's offered instruction No. 5 told the jury that the State must...