State v. Brandon

• Decision Date: 14 April 1994
• Docket Number: No. 93-293,93-293
• Citation: 264 Mont. 231,870 P.2d 734
• Parties: STATE of Montana, Plaintiff and Respondent, v. Duane BRANDON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 734

870 P.2d 734

264 Mont. 231

STATE of Montana, Plaintiff and Respondent, v. Duane BRANDON, Defendant and Appellant.

No. 93-293.

Supreme Court of Montana.

Submitted on Briefs Jan. 7, 1994.

Decided March 22, 1994.

Rehearing Denied April 14, 1994.

Charles F. Moses, Moses Law Firm, Billings, for appellant.

Hon. Joseph P. Mazurek, Atty. Gen., Cregg Coughlin, Asst. Atty. Gen., Helena, Wm. Nels Swandal, Park Co. Atty., Jon Hesse, Deputy Park Co. Atty., Livingston, for respondent.

HARRISON, Justice.

Appellant Duane Brandon (Brandon) appeals the Sixth Judicial District Court, Park County, jury verdict which found him guilty of conspiracy to commit deliberate homicide against his wife, Patsy Brandon (Patsy). We affirm.

Five issues are before this Court:

1. Did the District Court err by refusing Brandon's proposed jury instructions on solicitation and entrapment?

2. Did the District Court err by denying Brandon's motion to dismiss and acquit on the grounds of entrapment?

3. Did the District Court err by restricting Brandon's cross-examination of the informant?

4. Did the District Court err by refusing to admit Brandon's statement to police into evidence?

5. Did the District Court err by refusing Brandon's motion for a change of venue?

Brandon and Patsy were married for approximately thirty years. They lived in Livingston, Montana, and had three children. Brandon was a self-employed heavy equipment operator/contractor and Patsy was a clerk at Gateway Office Supply. After the couple separated in August 1991, Patsy moved to a trailer court near Livingston. Divorce proceedings began in October 1991, and the parties attempted to negotiate a property settlement. Although the parties constructed a draft agreement, no final agreement was ever reached.

Roger Gorham (Gorham) was an acquaintance of Brandon's; they met when Brandon was working on a road in the subdivision where Gorham lived. Upset about his pending divorce and potential financial difficulties associated with the future property settlement, Brandon told Gorham that he wished his wife would "disappear." Brandon hoped Patsy would have an accident or that "somebody would take a shot at her."

Sensing Brandon's mind-set, Gorham suggested that Brandon discuss his divorce problems with Bill Bartlett (Bartlett), a Bozeman attorney. On October 14, 1991, Gorham drove Brandon to Bozeman to meet with Bartlett. During the drive, Brandon stated that he wished his wife was dead or that someone would kill her. When Gorham introduced Brandon to Bartlett, but before Brandon and Bartlett met privately, the trio joked about Brandon wanting to kill his wife.

After the consultation, Brandon and Gorham returned to Livingston and Gorham went to a motel lounge for a drink. While there, Gorham told Park County Undersheriff Lee Keto that a mutual friend wanted Gorham to kill his wife. The two laughed, and no more was said at that time.

On February 3, 1992, Brandon visited Gorham and told him that he had met with an attorney and learned that he was going to have to pay a large divorce settlement. Brandon wanted Gorham to kill Brandon's wife; Gorham was to receive $10,000--possibly in the form of construction work--as payment for killing Brandon's wife.

They were to meet later that evening to discuss the details. Following the first visit, Gorham contacted Undersheriff Keto, informing him that Brandon had made statements about wanting to kill Patsy. With Gorham's consent, Park County sheriffs attached a hidden wire, or microphone, to Gorham.

Gorham then drove to Brandon's home and picked him up. They drove to the trailer court where Patsy lived. While there, Brandon discussed methods of killing Patsy. The conversation was recorded by law enforcement officers.

Brandon suggested that Gorham asphyxiate Patsy with natural gas. He gave Gorham suggestions on how to avoid detection. Brandon alternatively suggested that Gorham might lure Patsy to Big Timber, kill her, and dump her body in a "green box," or trash disposal bin. He described in detail the location of the disposal bins. Brandon told Gorham he was leaving Montana temporarily and wanted the job done while he was gone.

To assist Gorham, Brandon had Gorham write down Patsy's place of employment, her work phone number and her work schedule. Brandon wanted someone to find Patsy's body while Brandon was gone from the state. Brandon even devised a signal by which Gorham could convey to Brandon, through Brandon's girlfriend, whether Patsy's body was found. When Gorham asked if Brandon might have second thoughts about this later, Brandon made it clear that he was serious and that he wanted his wife killed.

On the following day, Gorham again met with Brandon. This conversation was recorded as well. At that meeting, Brandon delivered a .22 caliber pistol to Gorham. Brandon taught Gorham how to use the gun and suggested that Gorham purchase solid-point bullets, rather than hollow points, because they "penetrate better." Gorham asked, "Do you think these will go through her skull?" The following exchange occurred:

BRANDON: Oh yeah. If you could shoot her in, right in here, the butt of the ear, right in here somewhere, it'll--it'll put her down. And then the best thing to do is to put the [gun] right up there close and just pull it off about three times, four times. I'll guarantee that son of a bitch will do the job. That [expletive] thing right there I shot a bull moose with antlers on it about this wide.

GORHAM: Okay, this is it then.... Are you sure this'll do the trick?

BRANDON: You [expletive] right. If that son of a bitch will kill a bull moose, it ought to kill her.

Brandon advised Gorham that he could dispose of the gun by throwing it into a deep hole in the Yellowstone River, and explained to him where the hole was located.

Later that evening, Gorham again met briefly with Brandon. This conversation was also recorded. Gorham confirmed that Brandon wanted his wife killed. Gorham asked about his payment, reminding Brandon that he was to receive $10,000. Brandon responded, "I'll do it, [expletive], even if I have to haul gravel to finish it up." Brandon then advised Gorham to put a garbage sack over Patsy's head "to keep her from bleeding all over the [expletive] place." Brandon further suggested:

If you can get into a situation where you can knock her in the [expletive] head, cold cock her, then you can take that [expletive] gun and stick it right up here, and angle it up into her [expletive] brain, like this way.... Yeah, and it won't leave no [expletive] blood right here. You might get a little out of her [expletive] nose or something, but hey, you get a [expletive] gunny sack over her, or a plastic sack over her, and you got it made.

Brandon was arrested the following day. On February 19, 1992, Brandon was charged with conspiracy to commit deliberate homicide in violation of § 45-4-102, MCA, or, in the alternative, with solicitation to commit deliberate homicide in violation of § 45-4-101, MCA. The conspiracy count was dismissed on September 8, 1992, and Brandon was tried by a jury on December 14-17, 1992. The jury found Brandon guilty of solicitation to commit deliberate homicide. Brandon's motion for a new trial was denied.

On February 12, 1993, Brandon was sentenced to twenty-five years in prison with five years suspended. He was designated a dangerous offender for purposes of parole eligibility. Brandon appeals. We affirm.

I

Did the District Court err by refusing Brandon's proposed jury instructions on solicitation and entrapment?

Our standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548. The district court must instruct the jury on each issue or theory which is supported by the record. State v. Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396. Brandon contends that he was denied an opportunity for a fair trial because the District Court refused his instructions regarding solicitation and entrapment.

Brandon claims that the court should have accepted his Proposed Instruction No. 27:

You are instructed that a conviction of criminal solicitation must be based upon prosecutorial proof beyond the mere verbal act of soliciting another to commit a crime. The State is required to present sufficient evidence to permit a jury to conclude beyond a reasonable doubt that the solicitation itself was done with the specific purpose to promote or facilitate the commission of the crime solicited. Accordingly, a conviction cannot be established where the actions have been innocently motivated, done in jest, and with no proof beyond a reasonable doubt of a purpose to actually intend to carry out such a crime.

Brandon also offered Proposed Instruction No. 28:

You are instructed that one of the elements required to be proven in this case is that the defendant solicited Roger Gorham for the purpose of committing a homicide. The evidence must be sufficient to prove beyond a reasonable doubt that Duane Brandon acted with the specific intent to promote or facilitate the commission of a crime. It is not sufficient, however, to show merely that the accused solicited the commission of the crime. Rather, sufficient circumstances surrounding the overt act of solicitation must be presented which corroborate that the act in fact was done with the requisite specific intent or purpose. This protects those actions that may have been innocently motivated, done in jest, or with no purpose to actually have a crime committed.

These instructions, Brandon contends, properly instruct that to prove solicitation, the State must additionally prove "circumstances strongly corroborative of [specific] intent." State v. Aalbu (Colo.1985), 696 P.2d 796, 805 (quoting State v. Latsis (1978), 195 Colo. 411, 578 P.2d 1055, 1057).

In Aalbu and Latsis, the ...