State v. Gratzer

• Decision Date: 24 April 1984
• Docket Number: No. 83-157,83-157
• Citation: 682 P.2d 141,209 Mont. 308,41 St.Rep. 727
• Parties: STATE of Montana, Plaintiff and Respondent, v. Karl Eric GRATZER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 141

682 P.2d 141

209 Mont. 308

STATE of Montana, Plaintiff and Respondent, v.Karl Eric GRATZER, Defendant and Appellant.

No. 83-157.

Supreme Court of Montana.

Submitted Dec. 8, 1983.

Decided April 24, 1984.

Michael J. Sherwood(argued) and Karl Englund, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert McCarthy, County Atty., Patrick Fleming and Ross Richardson, Deputy County Attys.(argued), Butte, for plaintiff and respondent.

SHEEHY, Justice.

Karl Eric Gratzer appeals from his conviction of deliberate homicide in the District Court, Second Judicial District, Silver Bow County.He was charged in the shooting death of Tim Hull on April 14, 1982, which occurred in a parking lot near a dormitory of the Montana College of Mineral Science and Technology (Montana Tech).

Gratzer, born in Butte, the last of eight children, lived with his mother and stepfather.For most of the time between 1979 and the date of the shooting, he was engaged in an intense personal relationship with a young woman we identify as P.L.It appears that he and P.L. were almost inseparable from their late high school years until 1981-1982, when P.L. was enrolled as a student at Montana Tech. Gratzer enrolled there in January of 1982.

From December of 1981, however, it appears that the relationship between the two was deteriorating, or at least that P.L. was also attracted to Tim Hull.Gratzer suspected that more was going on between P.L. and Tim Hull than he was being told by P.L., and his suspicions were confirmed on occasions when he discovered the two together at her house or in other locations.

On the night of April 14, 1982, he found P.L.'s vehicle in the parking lot near the dorm (she resided in her own home in Butte).He was observed letting the air out of two tires on her vehicle.His purpose was to find out whom she was visiting in the dorm.He was chased by the two persons who saw him letting the air out of the tires.He made a hasty retreat to his car and made good his escape.

Gratzer, however, came back to the parking lot in another car, this time taking with him a .357 magnum pistol.From a vantage point where he had parked his car, he observed P.L. come out of the dormitory, brush some snow off of her vehicle and discover the flat tires.She went back into the dormitory.He got out of his car and made his way to a spot between some pine trees located at the west end of the parking lot.He was observed in his hiding place by the occupants of a house nearby.A short time later P.L. and Tim Hull came out of the Montana Tech dormitory hand-in-hand.They walked toward P.L.'s car.When they approached the pine trees at the west end of the parking lot, Gratzer stepped out of his hiding place and a confrontation ensued.Gratzer had his gun in his hand, and Hull struggled with him before breaking free and attempting to flee.While Hull was retreating, Gratzer fired his pistol twice at the fleeing man.One of the two shots struck Hull in the back of the left leg, shattering his femur bone so that he was incapacitated.Gratzer then walked over to where Hull was lying and fired two more shots from his pistol at point blank range.These bullets struck Tim Hull in the left side of his head causing his instantaneous death.

Gratzer then walked back to his vehicle and went to his home.There he informed his mother that he thought he had shot someone.Following that he drove to the police station where he turned himself, his gun, and his car keys over to the police.

Gratzer was charged in District Court with aggravated assault and deliberate homicide.The District Court ordered that he be examined at Warm Springs State Hospital for an evaluation in order to determine whether he was fit for the criminal proceedings.His attorney filed a notice of purpose to rely on mental disease or defect.The District Court then ordered a psychiatric examination be conducted by Dr. William D. Stratford.The District Court also, at the request of the State, required that the defendant be examined by personnel at Warm Springs State Hospital as to the mental state of the defendant on the night in question.

The psychiatrists for the defense and the prosecution testified at the trial.Each testified that Gratzer was under mental stress during the night of the shooting.Dr. Xanthopoulos felt that the mental stress was not so extreme as to invoke the statutory language of mitigated deliberate homicide.Dr. Stratford felt the stress was extreme.

The jury returned a verdict of not guilty on aggravated assault and guilty of deliberate homicide.He was sentenced by the District Court to life imprisonment, labeled a dangerous offender for purposes of parole, and declared to be ineligible for parole, and further sentenced to ten years for the use of a firearm in the commission of the offense.His appeal is now before us.

I.

The first and principle issue raised by Gratzer is that the District Court committed instructional error with respect to mitigated deliberate homicide in refusing to give two instructions offered by Gratzer.Gratzer contends that the District Court improperly instructed the jury with respect to burden of proof relating to mitigated deliberate homicide.He argues that the State has a duty to prove beyond a reasonable doubt as an element of mitigated deliberate homicide that Gratzer was not acting under the influence of extreme mental or emotional stress.

The State contends that Gratzer was not entitled to any instructions on mitigated deliberate homicide under the facts in this case but that, in any event, under court's InstructionNo. 10A, no instructional error occurred.

With the adoption of the new Montana Criminal Code of 1973, our state legislature divided criminal homicide into three types, deliberate, mitigated deliberate, and negligent.Section 45-5-101 et seq., MCA.

Criminal homicide is deliberate if it is committed purposely or knowingly.Section 45-5-102, MCA.It is mitigated deliberate homicide if what would otherwise be deliberate homicide is "committed under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse."Section 45-5-103, MCA.

We are called upon by the parties in this case to determine who has the burden and what is the burden of proof to establish the influence of extreme mental or emotional stress in a mitigated deliberate homicide case.

The District Court determined not to fix the burden of proof on either party, and instead instructed the jury with respect to mitigated deliberate homicide as follows:

"In order to find the Defendant Guilty of the lesser offense of mitigated deliberate homicide, the State must prove the following propositions:

"First, that the defendant performed the acts causing the death of Tim Hull, and

"Second, that when the Defendant did so, he acted purposely or knowingly;

"Additionally, you must find that at the time the Defendant killed Timothy Hull, he was acting under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse.The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the Defendant's situation.

"If you find from your consideration of all the evidence that each of the first two propositions has been proved beyond a reasonable doubt by the State and that the Defendant, at the time he killed Timothy Hull, was acting under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse, then you should find the Defendant Guilty of the lesser offense of Mitigated Deliberate Homicide.

"However, if you find that the Defendant was not acting under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse, then you should find the Defendant Guilty of Deliberate Homicide.

"If you find from your consideration of all the evidence that either of the first two propositions has not been proven by the State beyond a reasonable doubt then you must find the Defendant Not Guilty of Deliberate Homicide."

Before considering the propriety of the foregoing instruction, we must first treat the contention of the State that the court should not have instructed the jury in this case on mitigated deliberate homicide.It is the State's contention that the facts of this case indicate nothing but deliberate homicide and there was no showing of mitigation.

Mitigated deliberate homicide is a lesser-included offense of deliberate homicide.State v. Bashor(Mont.1980), 614 P.2d 470, 487, 37 St.Rep. 1098, 1118;State v. Baugh(1977), 174 Mont. 456, 459-60, 571 P.2d 779, 781.The District Court therefore had a duty to instruct the jury on mitigated deliberate homicide if there was evidence to justify the submission of the lesser crime.In this case the testimony of Dr. Stratford to the effect that Gratzer was acting under extreme mental or emotional stress created a fact issue which was sufficient to require the District Court to submit the lesser crime to the jury for its consideration.

The State also contends that Stratford's evidence was incredible, but of course the weight of the evidence is for the jury.

It is the duty of the State in a criminal prosecution to prove beyond a reasonable doubt every element of the crime charged.Does this mean therefore that the influence of mental or emotional stress is an element that the State must prove in order to sustain a conviction of mitigated deliberate homicide as a lesser-included crime?We hold not.Under the statutory scheme defining homicide in the Montana Criminal Code of 1973, all purposely and knowingly committed homicides are deliberate unless committed under the influence of extreme mental or emotional stress.In defining the offense of mitigated deliberate homicide, the legislature did not create an additional element for the State to prove relating to mental or...