State v. Hagen

• Decision Date: 17 October 1995
• Docket Number: No. 94-589,94-589
• Citation: 903 P.2d 1381,273 Mont. 432
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Bruce Holte HAGEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1381

903 P.2d 1381

273 Mont. 432

The STATE of Montana, Plaintiff and Respondent, v. Bruce Holte HAGEN, Defendant and Appellant.

No. 94-589.

Supreme Court of Montana.

Submitted on Briefs Sept. 7, 1995.

Decided Oct. 17, 1995.

Stephen J. Nardi, Sherlock & Nardi, Kalispell, for appellant.

Joseph P. Mazurek, Attorney General; Kathy Seeley, Assistant Attorney General, Helena, Robert Slomski, County Attorney, Thompson Falls, for respondent.

TURNAGE, Chief Justice.

Bruce Hagen was convicted by a jury in the Twentieth Judicial District Court, Sanders County, of deliberate homicide in violation of § 45-5-102, MCA, and aggravated assault in violation of § 45-5-202, MCA. Hagen appeals the decision of the District Court denying his proposed jury instruction on justifiable use of force in defense of an occupied structure. He also appeals on the grounds of ineffective assistance of counsel. We affirm.

Hagen raises the following issues on appeal:

1. Did the District Court err in refusing Bruce Hagen's proposed jury instruction on the justifiable use of force in defense of an occupied structure?

2. Was Bruce Hagen denied effective assistance of counsel?

Bruce Hagen is a fifty-eight-year-old retired federal government employee. Bruce and his wife, Gabby, lived in Sanders County, Montana, on Highway 200 between Plains and Thompson Falls. The Hagen residence is a mobile home with a log structure addition. Bruce and Gabby lived on Bruce's government pension.

In late September 1993, a forest fire burned in the vicinity of the Hagen residence. The fire burned within approximately thirty feet of the Hagens' home before it was stopped. Throughout the end of September and beginning of October, United States Forest Service personnel as well as private firefighters were in the area surrounding the Hagen residence extinguishing the fire.

Bruce received his pension checks the first of each month. On October 1, 1993, Bruce went to Krazie Ernies, a sporting good store and pawn shop in Thompson Falls, and retrieved his .12 gauge shotgun he had pawned there. When he returned home, Bruce, Gabby, and Steve Jennette, an acquaintance living in the Hagens' camper trailer parked near their residence, began drinking. They drank throughout the afternoon. At approximately 2:00 p.m., Bruce and Steve began shooting the shotgun into a woodpile near the Hagen residence.

Officer Keith Danhoff of the Montana Highway Patrol was parked at the It Shop located directly across Highway 200 from the Hagen residence. Officer Danhoff heard the shots and drove up to the Hagen residence. He advised Bruce that he should not shoot the shotgun because firefighters and Forest Service personnel were still in the area. Officer Danhoff testified that Bruce became agitated and argumentative. Officer Danhoff returned to the It Shop where he heard one more shot come from the Hagen residence. Officer Danhoff waited approximately twenty minutes and heard no more shots.

Between 5:00 and 6:00 p.m., Gabby stated that she wanted to go into town to buy tobacco and continue drinking. Bruce did not want to drive to town because he had been drinking and he did not like to drive at night. Bruce and Gabby argued over whether she should go to town. Ultimately, Bruce gave his truck keys to Steve Jennette and Steve and Gabby went to town. Bruce remained at the Hagen residence.

At approximately 5:30 p.m., Sanders County Sheriff Sammy Tomas went to the Hagen residence to investigate the gunshots reported earlier in the afternoon. When Sheriff Tomas approached the house he observed that the front door was open with only the screen door being closed. Sheriff Tomas observed Bruce lying on the couch in the living room. Sheriff Tomas knocked on the screen door and yelled at Bruce, but was unable to wake him. Sheriff Tomas testified that he assumed Bruce was passed out and left the Hagen residence.

Gabby and Steve drove to town in Bruce's truck. Gabby bought tobacco, and she and Steve proceeded to Dick's Club, a local tavern, to drink. They stayed at Dick's Club for several hours and consumed several drinks. Gabby and Steve left Dick's Club and drove toward the Town Pump Casino. On the way to the Town Pump Casino, Gabby and Steve experienced mechanical problems with Bruce's truck. Gabby and Steve abandoned the truck at the Town Pump Casino and went inside to look for a ride home.

Gabby and Steve ran into acquaintances Jim Enger and his common-law wife, Alice Goodrich, at the Town Pump Casino. Jim and Alice, like Gabby and Steve, had been drinking and were intoxicated. Gabby explained to Jim and Alice that she and Steve were having vehicle problems. Jim and Alice called their friend, Reece Cobeen, at his home, and Reece agreed to come to the Town Pump Casino and give Gabby and Steve a ride home. Reece testified that he had not been drinking.

Reece drove a compact pickup truck; therefore, Steve and Jim rode in the back while Reece, Gabby and Alice rode in the cab. They arrived at the Hagen residence at approximately 1:00 a.m. on October 2, 1993.

When the party arrived at the Hagen residence, Gabby invited everyone into the house. Steve and Reece were unloading Steve's belongings from Reece's truck and hauling them to the camper trailer located near the Hagens' house. Gabby and Jim proceeded up the steps and onto the porch of the house. Gabby tried to open the door but was unable to do so. The door did not have a lock; instead, the Hagens customarily wedged a board between the door handle and the floor from the inside of the house. This barred the door closed and prevented it from being opened from the outside.

Gabby began knocking on the door and yelling for her husband, who did not respond. Gabby asked Jim to help her wake Bruce. Jim began kicking on the door and yelling for Bruce. Jim testified that he and Gabby banged on the door and yelled for approximately five minutes. Reece Cobeen testified that while Jim and Gabby were banging on the door, he and Steve finished moving Steve's belongings into the camper and then went and stood near the bottom of the stairs. The witnesses' versions of exactly what happened from this point vary slightly.

Jim testified that the door suddenly opened, and he entered the Hagen residence. He stated that Bruce answered the door carrying his .12 gauge shotgun. He testified that soon after entering the residence, Bruce struck him twice with the shotgun. Jim stated that he did not fall to the ground, but was knocked away from Bruce and was bent over toward the floor. He claims that Bruce then stated, "Jim get out or I'm going to kill you." Jim testified that he turned and was heading for the door when he heard Bruce pump the shotgun lever. Jim heard the shotgun fire. Jim was struck in the left arm and left side of the body. He fell to the floor and remembered nothing else from the remainder of the incident.

Gabby testified that the door suddenly opened and her husband pulled or yanked Jim into the Hagen residence. She testified that the two men struggled. She claims that she then walked into the house and past Jim and Bruce. She proceeded to the rear of the house. While in the rear of the house, out of view of her husband and the others, she heard a shot or shots. She remained in the rear of the residence until the incident was over and then exited the residence through the back door.

Reece testified that he was standing near the foot of the stairs leading up to the front porch of the Hagen residence. He claimed that when the door opened, Jim, Gabby and Alice walked into the residence. He testified that as soon as they entered the residence, Bruce escorted Gabby back outside and told her to "just go." Bruce then returned inside the residence where Jim and Alice were. Reece then heard a loud crashing noise, like someone or something had fallen to the floor. He then claimed he heard Bruce say, "Jim, don't fuck with me or I will kill you." He then claimed to have heard two gunshots coming from inside the residence.

Bruce testified that he was awakened by a loud, impatient banging on his front door. As he walked to the door, he picked up his loaded shotgun. He did not specifically recall removing the board which held the door shut, but admitted he must have done so to open the door. Bruce claimed that when he opened the door he was immediately encountered by a man on his front porch. He claimed he did not know that it was Jim at the time of the altercation. Bruce testified that he and Jim wrestled for the gun. Bruce claims that he struck Jim in the head with the gun, knocking him down. Bruce then testified that Jim made a move toward him. Bruce claimed that as Jim came toward him, he pumped the lever of the shotgun to transfer a shell from the magazine into the chamber and the gun fired. He claimed he then turned toward the door and saw a pair of legs rushing toward him. He pumped another shell into the chamber and fired. He then pumped the final shell into the chamber and fired again. He claimed he did not know who he was shooting and testified that he would have shot anyone at that time.

Of the three shots fired, the first shot hit Jim. Another shot struck the rails on the back of the porch. The other shot struck Alice in the midsection, causing massive injuries. Alice was dead when medical personnel arrived.

Alan Boehm, the State Crime Lab's firearms and tool mark examiner, examined and tested the shotgun and testified that even if the trigger was depressed while the pump action was cocked, this particular shotgun would not fire. Boehm testified that the trigger would have to be released and then depressed again for the shotgun to fire. Boehm also testified that both Jim and Alice were shot from a distance of less than eight feet.

On October 22, 1993, Bruce was charged by information with one count of deliberate homicide and one count of aggravated assault in the Twentieth Judicial District Court, Sanders County. Bruce pleaded not...