State v. Brown, 02-271.
| Decision Date | 19 June 2003 |
| Docket Number | No. 02-271.,02-271. |
| Citation | 71 P.3d 1215,2003 MT 166 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. William L. BROWN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, Montana, For Appellant.
Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant Attorney
General, Helena, Montana, Mike Grayson, County Attorney, Anaconda, Montana, For Respondent.
¶ 1 Appellant, William L. Brown (Brown), appeals his conviction of deliberate homicide with the use of a deadly weapon and his corresponding sentence of 110 years. We affirm.
¶ 2 The issues on appeal are as follows:
¶ 3 1. Was there sufficient evidence to sustain the conviction of deliberate homicide, as opposed to mitigated deliberate homicide?
¶ 4 2. Did the District Court impose an illegal sentence by punishing Brown for exercising his constitutional right to a jury trial?
¶ 5 Phil and Misty Nebeker and their two children lived in Anaconda. Brown lived four blocks away from the Nebekers and had known Misty since elementary school. On the evening of December 18, 2000, Brown telephoned Phil and asked Phil to buy beer with him. Phil left the house to buy beer with Brown while Misty stayed home and watched videos with the children. Brown and Phil later returned to the Nebekers' house with a 20-pack and a 12-pack of beer. Misty was drinking wine coolers and Brown and Phil were drinking beer. Misty testified that Brown and Phil were drinking moderately and neither was drunk. At some point, all three went to an upstairs bedroom to smoke marijuana. Afterwards, on their way downstairs, Phil began to yell at Misty and accused her of having an affair with Brown.
¶ 6 Misty walked into the kitchen to get another wine cooler. Phil followed her and continued to accuse her of having an affair. Misty testified that, as she was reaching into the refrigerator for a wine cooler, Phil grabbed her by the hair, pulled her hair back, and slapped her two or three times. Misty testified that Phil then kicked her legs. Misty testified that Brown was not in the kitchen when Phil kicked her. She also acknowledged that they were not within the view of Brown who was in the living room. Misty yelled at Phil to leave her alone and that he was hurting her. Misty testified that she never yelled or told Brown that her life was in danger or that she thought Phil was going to kill her. Misty was afraid that Phil was going to hurt her, but not kill her. Misty testified that Brown came into the kitchen and told Phil not to hit her. She testified that when Brown walked into the kitchen Phil was still holding onto her hair, but that Phil let go of her when Brown entered the kitchen.
¶ 7 Brown and Phil began to argue. Misty left the kitchen and went into the living room, where she covered the children up with blankets and sat on the couch. Misty did not call 911 because she did not believe the fight would escalate to a homicide. From the living room, Misty could not see what was happening in the kitchen. She could hear Brown and Phil arguing but could not understand what they were saying. She heard a thud and the voices stopped. Brown came into the living room holding a broken kitchen knife. Brown had blood on him and said: Brown told Misty that he thought Phil was going for a knife; he pushed Phil out of the way, and grabbed the knife. Misty told Brown that they needed to call an ambulance and the police; Brown responded that he had to think. Misty testified that she did not call an ambulance because she was scared and could not move. She stated that Brown kept repeating that he needed to think. Brown also kept repeating that Phil was going to kill her. Brown told her that he had saved her life.
¶ 8 Misty estimated that Brown killed Phil some time after 1:00 a.m. Mike Brown, testified that around 1:00 or 1:15 a.m. he received a telephone call from his brother, Bill Brown. Brown asked Mike to come to the Nebekers' house. Mike got dressed and walked the four blocks to the Nebekers' house. After Mike arrived, Brown told him that he had killed Phil. Mike thought he was joking. Mike described Misty as shaking, nervous, and in shock. Brown took Mike to the back bedroom to show him Phil's body. Brown told Mike that Phil was being a "dick" to Misty. Mike however did not recall anyone saying that Phil had been hitting Misty. Brown told Mike that he got into a pushing match with Phil in the kitchen and stabbed him. Mike stated that Brown was pacing the floor trying to figure out what to do. Mike also observed that his brother was not totally upset about what had happened. Mike testified that Brown wanted to get rid of Phil's body. Brown asked Mike to help him move the body and talked about not having a truck available. Mike testified he did not want to help his brother move the body. After ten to fifteen minutes at the Nebekers' house, Mike left.
¶ 9 On the morning of December 19, 2000, Misty's brother, Dan Hansen was leaving his grandmother's house when Brown came up to him and asked for a ride to a friend's house. Hansen gave Brown a ride. Hansen testified that Brown seemed fine and that he was not crying, upset, or emotional. When Hansen and Brown arrived at the friend's house, Misty was sitting on the couch and crying. Misty told her brother that Brown had killed Phil last night. Misty explained how it happened. She said that when she was in the kitchen getting something out of the refrigerator, Phil grabbed her by the hair. Misty then said that Brown came into the kitchen and she ran into the living room as Brown and Phil started to fight. Misty told her brother she was in the living room when the stabbing occurred. When Misty described the homicide that morning, Hansen testified that Misty did not tell him that Phil had slapped or kicked her. Hansen told Brown and Misty that he "didn't want any part of this," and if they did not call the police, he would.
¶ 10 Later in the afternoon, Brown and Misty returned to the Nebekers' house. At 3:15 p.m., Brown called the police and asked the police dispatcher to send a detective to the Nebekers' residence. When the dispatcher asked Brown what was going on, Brown responded that there was a "dead guy in the bedroom." After further questioning by the dispatcher, Brown revealed that the dead man was Phil Nebeker. Detective Sullivan was in the dispatch room when Brown called. He described Brown as very calm during the call and not speaking with any great deal of emotion.
¶ 11 Police officers Jack Kelly and Mike Fink were the first to arrive at the Nebekers' house. When the officers entered the house, Brown was smoking a cigarette in the living room. When Officer Kelly asked him what was going on, he failed to answer. After Officer Kelly asked him a second time, Brown pointed toward the kitchen area and said he was back there. Officer Kelly followed a blood trail to a pile of bed sheets and clothing lying on the floor where Phil's body was. Officer Fink, meanwhile, was with Misty and Brown in the living room. Officer Fink asked them what was going on and neither of them answered. He then directly asked Brown, and Brown said: "I stabbed the f___er." Brown also told Officer Fink that the stabbing had occurred last night. Officer Fink placed both Misty and Brown under arrest. Detective Sullivan testified that when Officer Fink arrested Brown, Brown's emotional state was cold. He was not upset or crying. Officer Fink testified that, in the past, he has been around Brown when he has been drinking and that Brown has been aggressive towards him. Hansen, Misty's brother, also testified that he has seen Brown get really angry when he drinks.
¶ 12 The police took photographs of Misty and had her examined by a physician because of her report that Phil had pulled her hair, slapped her face, and kicked her legs. Detective Sullivan testified that Misty had marks on her neck from a previous surgery but there were no recent marks on her face. He saw no bruises or lacerations on her face. The photographs of Misty's legs showed no marks or bruises. Misty acknowledged that there were no bruises in photographs taken of her at the police station. Dr. David Kidder examined Misty on the evening of December 19, 2000. In his work as an emergency room doctor, Dr. Kidder routinely deals with people who have been victims of assault. Dr. Kidder testified that he saw no visual evidence that Misty had been physically assaulted.
¶ 13 The police also took photographs of Brown to document any of his injuries. Detective Sullivan testified the photographs depicted some old scars on his back. Aside from those scars, there were basically only three marks on Brown's body. There was a small mark or scratch on the back of Brown's neck just below his hairline. There was a small cut on Brown's right hand above his wrist. Detective Sullivan testified that an assailant can incur "knife slippage" marks if he loses control of the knife and gets caught by the blade. He stated that the mark on Brown's hand could have been a "knife slippage" mark from when the knife handle broke off. Detective Sullivan testified that usually clothing gets ripped or stretched when there has been a wrestling match of some sort during a fight and that the shirt Brown was wearing did not appear to be stretched, ripped or damaged in any kind of struggle.
¶ 14 State Medical Examiner, Dr. Gary Dale, performed an autopsy on Phil. Dr. Dale testified that Phil had a knife wound that went all the way through his left hand. Dr. Dale also testified that Phil had a stab wound on the back of his left forearm consistent with a defensive-type wound. Phil also had a bruise on his right bicep. Dr. Dale testified that when there has been a reported fight, he sometimes finds bruising over the...
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