State v. Cunningham

• Decision Date: 21 March 2018
• Docket Number: DA 15-0519
• Citation: 414 P.3d 289,390 Mont. 408,2018 MT 56
• Parties: STATE of Montana, Plaintiff and Appellee, v. William Earl CUNNINGHAM, Defendant and Appellant.
• Court: Montana Supreme Court

390 Mont. 408

414 P.3d 289

2018 MT 56

STATE of Montana, Plaintiff and Appellee,

v.William Earl CUNNINGHAM, Defendant and Appellant.

DA 15-0519

Supreme Court of Montana.

Submitted on Briefs: January 24, 2018

Decided: March 21, 2018

For Appellant: Chad Wright, Appellate Defender, Jennifer Hurley, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Ryan Aikin, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Billings, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶ 1 A jury in Montana's Thirteenth Judicial District Court, Yellowstone County, found William Earl Cunningham guilty of deliberate homicide committed with a dangerous weapon. The District Court sentenced Cunningham to Montana State Prison for eighty years. Cunningham appeals. We reverse and remand for a new trial.

¶ 2 Cunningham raises four issues on appeal. We restate the dispositive issue as:

Whether the District Court made numerous erroneous rulings amounting to cumulative error and requiring reversal.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 During the evening of August 1, 2014, Cunningham joined his friend and neighbor Lena Heller at a picnic table outside of their apartment building in Laurel, Montana. Heller introduced Cunningham to her friend and former co-worker, Nathan Horn. Cunningham, Heller, and Horn sat at the picnic table drinking alcohol and socializing for several hours, joined eventually by another neighbor, Stephanie See. At some point, the military came up as a topic of conversation. The conversation devolved into an argument between Cunningham, a disabled, 63–year–old United States Army veteran, and Horn, a 40–year–old United States Marine Corps veteran, about which branch of the military was better. The argument intensified, but then ended abruptly when See invited Cunningham away from the picnic table and into her apartment.

¶ 4 The following morning, Horn apologized to Cunningham for arguing with him. That evening, August 2, 2014, Heller again invited Cunningham to come join her and Horn to drink and socialize at the picnic table. Cunningham initially declined the invitation, but subsequently accepted and joined Heller and Horn. Cunningham and Horn drank heavily, passing a bottle of Southern Comfort whiskey back and forth until both were drunk. Horn was so intoxicated that at one point he fell backwards off the picnic bench he was sitting on and onto the ground. Horn and Cunningham reconvened their argument about the military, the various attributes of the Army versus the Marine Corps, and continued this interaction throughout the evening. Meanwhile, Heller interacted with her smartphone—checking her social media accounts, text messaging, and making phone calls.

¶ 5 After hours of drinking and arguing, Horn and Cunningham's argument intensified and the two began hitting each other on the shoulder. Heller became concerned and asked Horn and Cunningham to stop arguing, but they refused. Heller took the bottle of alcohol away and threw it into a nearby dumpster. Next, Heller, through phone calls and text messages, urged Horn's nephew to come over and help her defuse the escalating argument she described as "aggressive" and "out of control." In progressively more urgent text messages, Heller told Horn's nephew that Horn was "really drunk" and asked him repeatedly to "hurry" because she "need[ed] help."

¶ 6 Before Horn's nephew arrived, Cunningham used the folding knife he customarily carried in a holster around his waist to cut Horn's throat, severing his left carotid artery and jugular vein. Horn was unarmed. Heller looked up from her smartphone to see Horn lying face-up on the ground with his legs draped over the overturned bench he had been sitting on and Cunningham above Horn with his knife in his hand. Cunningham told Heller to call 9–1–1 for an ambulance, which she did. Laurel Police Officer Jeremiah Johnson responded first. When he arrived, Officer Johnson saw Horn lying on the ground bleeding profusely from his neck and surrounded by a pool of blood. Cunningham stood nearby and Officer Johnson overheard him say, "You don't hit me" and "He's dead." Officer Johnson administered first aid to Horn until the ambulance arrived to transfer Horn to a medical facility; however, Horn died from blood loss during transport.

¶ 7 Officer Johnson arrested Cunningham and, after Cunningham waived his Miranda rights, conducted an initial interview. Officer Johnson paused the interview and conducted a breath analysis. Cunningham's alcohol concentration, taken less than two hours after his altercation with Horn, was 0.217. The State charged Cunningham by Information with deliberate homicide, § 45-5-102, MCA, and a weapons enhancement, § 46-18-221, MCA. Cunningham provided timely notice he would rely on the defense of justifiable use of force provided in § 45-3-102, MCA. The District Court held a jury trial March 23–27, 2015. There were multiple objections and evidentiary rulings throughout the trial. The jury convicted Cunningham of deliberate homicide committed with a dangerous weapon and the District Court sentenced him to Montana State Prison for eighty years. Cunningham appeals.

STANDARDS OF REVIEW

¶ 8 We review evidentiary rulings for an abuse of discretion. State v. Hardman , 2012 MT 70, ¶ 8, 364 Mont. 361, 276 P.3d 839. We also review rulings on motions to interrogate the jury for an abuse of discretion. State v. Kirkland , 184 Mont. 229, 242-43, 602 P.2d 586, 594 (1979) (holding the district court did not abuse its discretion by denying defendant's motion to poll the jury about its potentially prejudicial exposure to a mid-trial news release). A district court abuses its discretion if it acts arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice. Hardman , ¶ 8.

DISCUSSION

¶ 9 Whether the District Court made numerous erroneous rulings amounting to cumulative error and requiring reversal.

¶ 10 Cunningham argues the District Court made several erroneous rulings, the sum of which entitle him to a new trial. First, Cunningham argues the District Court erred by excluding statements Horn made to Cunningham as hearsay. Second, Cunningham argues the District Court erred by precluding Cunningham from impeaching the State's expert witness, Dr. Thomas Bennett, with evidence that Dr. Bennett had mishandled other autopsies and testified falsely in other cases. Third, Cunningham argues the District Court erred by failing to question the jury regarding their concerns about media publicity and also by improperly addressing those concerns.

a. Horn's statements

¶ 11 At trial, Cunningham admitted he caused Horn's death, but claimed his actions were in response to Horn first "coming at" Cunningham and, accordingly, necessary to prevent his own imminent death or serious bodily harm. Cunningham introduced evidence of his poor health, including various heart conditions. In their two evenings of drinking and arguing, Cunningham learned that Horn was a sniper in the Marine Corps, where he received specialized training in hand-to-hand combat; that Horn considered himself "physically fit;" that Horn was recently released from Montana State Prison, where he was housed on the "high side" or high security section, and where he received a tattoo; and that, immediately prior to Cunningham using force, Horn threatened to "kick [Cunningham's] ass" and "stomp [Cunningham's] head into the ground." In chambers, the parties discussed Cunningham introducing these statements in his testimony. The State objected, arguing that the statements constituted hearsay and were inadmissible. Cunningham responded that the statements were being offered to show their impact on Cunningham and his state of mind; to establish that Horn was "threat[ening], ang[ry] and violen[t];" and explained that the statements were "not meant to establish any particular fact." The District Court held:

I am not going to permit the statements that Mr. Horn said he was a sniper, that he had hand-to-hand combat, that he was going to kick the Defendant's ass, stomp his head into the ground, that he had just gotten out of prison, that he had done time on the high side at Deer Lodge or that he had received a tattoo to the [hand] while he was at Deer Lodge, I believe that they are hearsay statements and that they are—would be asserted to directly prove the truth of the matter ....

Ultimately, because the State first "opened the door" during its cross-examination of Cunningham, the District Court allowed Cunningham to testify during redirect about Horn threatening to "kick [his] ass and stomp [his] head into the ground."

¶ 12 On appeal, Cunningham argues all of these statements were admissible, non-hearsay, and probative of both his and Horn's state of mind. Cunningham wanted to convey to the jury the information he learned about Horn that led him to use the level of force that he did against Horn. Further, Cunningham argues that although he was eventually able to testify to Horn's physical threats during redirect, his inability to testify about the threats during his direct examination undermined their importance to his defense. The State argues the District Court either justifiably excluded the statements as irrelevant or impermissible character evidence of the victim or nonetheless committed harmless error.

¶ 13 Evidence having "any tendency to make the existence of any fact that is of consequence ... more probable or less probable," is relevant and generally admissible. M. R. Evid. 401, 402. Even if relevant, hearsay, an out-of-court statement offered to prove the truth of the matter asserted, is generally not admissible. M. R. Evid. 801(c), 802. Also generally not admissible is character evidence, evidence admitted for the purpose of proving action in conformity with a characteristic or trait. M. R. Evid. 404(a). Character evidence is admissible, however, if...