State v. Buckley
| Decision Date | 15 December 1976 |
| Docket Number | No. 13336,13336 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Gary Lynn BUCKLEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Fennessy, Crocker & Harman, David W. Harman (argued), Jean Ellison, Donald L. Shaffer, Libby, for defendant-appellant.
Robert L. Woodahl, Atty. Gen., Lon J. Maxwell, Asst. Atty. Gen. (argued), Helena William A. Douglas, County Atty. (argued), Libby, for plaintiff and respondent.
This is an appeal from a jury verdict of guilty, and sentence of 100 years in the state prison of the district court, Lincoln County.
The essential facts began in late June 1975 and culminated with the homicide of James A. McIntyre on July 4, 1975. McIntyre, a newcomer to Eureka, Montana, was working on a ranch in the vicinity and staying at the DeLong cabin near Glen Lake, with the consent of the owner. On July 3, 1975, Gary Buckley also received permission from DeLong to stay at his cabin, as he had done on another occasion. At this time Buckley was AWOL from the United States Marine Corps. McIntyre was never informed that Buckley had obtained permission to stay at the DeLong cabin and upon returning to the cabin on July 3, 1975, he was surprised to be met by him. They introduced themselves and McIntyre left shortly thereafter. Believing Buckley to be on the premises unlawfully, McIntyre and one Jay Allison went to the local police to inform them. That night McIntyre returned to the cabin with a Lincoln County sheriff's deputy in McIntyre's truck. The deputy was dressed in civilian clothes and was armed at the time. After failing to find Buckley, the deputy and McIntyre left and rendezvoused with Allison and two other law enforcement officers. The officers returned to Eureka, but McIntyre and Allison returned to the cabin, searched the area again, and according to Buckley, yelled threats directed at him, if he sould be nearby, to stay away or he would be harmed.
Buckley stated he observed all of these events from nearby where he was sleeping for the night because he feared for his life and believed Allison and McIntyre were out to get him, McIntyre being Allison's hired gun, as a result of a falling out between Allison and Buckley.
The rest of the episode comes from Buckley through his statement given after his arrest and testimony at trial:
On the afternoon of July 4, 1975, Buckley was reading a book in the DeLong cabin when he saw McIntyre's truck approach. The truck went slowly past the cabin, did not come into the driveway, and stopped 15 to 20 yards past the cabin. Buckley, sensing danger, rose from his chair, got his 44 magnum, and went to the door. As he went past the refrigerator, buckley heard a noise behind him, outside the cabin. As he turned, he saw McIntyre holding a rifle waist high. McIntyre leveled the rifle and shot at Buckley, missing him. Buckley fired back, and missed McIntyre. McIntyre began running to his turck, and Buckley continued shooting, wounding McIntyre, knocking him to the ground and causing him to drop the rifle. Buckley continued to walk toward McIntyre, who was lying still at the time, and continued shooting, hitting McIntyre two more times and from less than seven and one-half feet away (as evidenced by powder burns). Finally, Buckley kneeled down and delivered the fatal shot to McIntyre's head from less than a foot away.
Buckley stated he acted from 'instinct'; was in a 'subtle state of mind'; a 'subconscious state of mind'; and his action was like the 'wrath of God coming down on Jim McIntyre' as he began shooting. He testified he shot McIntyre in the head to put him out of his misery.
Buckley was convicted of deliberate homicide, and sentenced to 100 years in prison. On appeal defendant raises five issues for this Court's review:
First is the withdrawal of the instruction on mitigated deliberate homicide after it was given to the jury. This occurred when the jury, after retiring to deliberate, asked for further instruction on the meaning of 'extreme mental or emotional stress'. The district court judge withdrew the instruction and instructed the jury that only deliberate homicide should be considered by it.
Second did the district court err in failing to dismiss the deliberate homicide charge on defendant's motion at the close of trial.
Third, defendant believes any statements made by him at the suppression hearing, concerning the voluntariness of his written statement, could not be used for impeachment by the state.
Fourth is whether the district court erred in admitting pictures of the deceased over the defendant's objection of irrelevant, gruesome, and prejudicial.
Fifth and finally, defendant questions the impartiality of the jury. He argues his motion for a change of venue based upon pretrial publicity about the defenses raised should have been granted. It was denied after individual voir dire of the jurors as to their knowledge of the case and the defenses to be raised. Defendant also argues the entire panel should have been dismissed because the district court informed the jurors before the individual voir dire that a change of venue could be a frightful expense to the people of Lincoln County.
First, defendant objected to the withdrawal of the instruction covering mitigated deliberate homicide on the grounds the state failed to object to the mitigated deliberate homicide instruction, that as a matter of law mitigated deliberate homicide should be considered as part of the case, and that otherwise the instructions were satisfactory for purposes of making a determination by the jury.
The state and defendant agree State v. Thomas, 147 Mont. 325, 413 P.2d 315, and State v. Taylor, 163 Mont. 106, 515 P.2d 695, set forth the test to be applied. Namely, the district court's instructions must cover every issue or theory having support in the evidence, and the inquiry of the district court must only be whether or not any evidence exists in the record to warrant an instruction on mitigated deliberate homicide.
Therefore, we determine if there was any evidence of extreme mental or emotional stress on the part of defendant presented at trial. We find none. Defendant, himself, stated he was not in shock but was in a 'subtle state of mind, a subconscious state of mind.' He did not excitedly begin to fire and continue in the same manner, but slowly and deliberately walked, not ran, towards McIntyre. At this time he states McIntyre was not struggling to regain control of his rifle, but was lying there incapacitated. Nevertheless, Buckley shot him twice more from close range, and then knelt down and delivered the fatal shot to the head, to 'put him out of his misery.' This testimony is incredible. Defendant was not in extreme mental stress, but his actions were that of a slow, deliberate, calm, and cool killer. Thus, the district couret was correct in finding there was no evidence of extreme mental or emotional stress.
As to the district court's withdrawal of an instruction, State v. Jackson, 88 Mont. 420, 293 P. 309, sets out the proposition that it is prejudicial error to withdraw a required instruction. As for an improperly given instruction, not required by law, we adopt the rationale of the Supreme Court of Hawaii in State v. O'Keefe, 45 Haw. 368, 367 P.2d 91, 94, that a court has the power to, and may, correct errors in its instructions by withdrawing, explaining, or correcting them. This is in accord with the disretion granted a district court in instructing the jury after submission of the case by section 95-1913, R.C.. M.1947.
Second, the district court did not err in denying defendant's motion to dismiss the deliberate homicide charge for insufficiency of the evidence. Section 95-1909(i), R.C.M.1947, states:
'* * * the court may on its own motion or on the motion of the defendant, dismiss the action * * *.' (Emphasis supplied).
The statue definitely leaves this determination within the discretion of the district court, and its action will not be disturbed on appeal unless there is an abuse of that discretion. We find no such abuse of discretion, since the state introduced evidence which tended to prove all the elements of deliberate homicide. The fact that some of that evidence could be interpreted...
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