State v. Ilk

• Decision Date: 31 July 2018
• Docket Number: DA 16-0580
• Citation: 392 Mont. 201,422 P.3d 1219,2018 MT 186
• Parties: STATE of Montana, Plaintiff and Appellee, v. Michael Gilbert ILK, Defendant and Appellant.
• Court: Montana Supreme Court

392 Mont. 201

422 P.3d 1219

2018 MT 186

STATE of Montana, Plaintiff and Appellee,

v.Michael Gilbert ILK, Defendant and Appellant.

DA 16-0580

Supreme Court of Montana.

Submitted on Briefs: April 18, 2018

Decided: July 31, 2018

For Appellant: Colin M. Stephens, Smith & Stephens, P.C., Missoula, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana, Bernard Cassidy, Lincoln County Attorney, Libby, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶ 1 Michael Ilk appeals his conviction for Attempted Deliberate Homicide and Aggravated Assault after jury trial in the Nineteenth Judicial District Court, Lincoln County. We affirm, addressing the following issues:

1. Did the District Court err by instructing the jury using conduct-based definitions of purposely and knowingly and thereby prejudicing Ilk’s substantial rights?

2. Did the District Court err by determining Ilk had not proven a Brady violation?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 On April 15, 2015, Ilk shot Hadassah Pereslete and Tyler Wilson at a construction site near Eureka. The 40-year-old Ilk and 23-year-old Pereslete had been in a long-term relationship that Pereslete ended in January of 2015, after Ilk physically assaulted her. Following the break-up, Ilk continued to pursue Pereslete, and sent her a letter apologizing for the "domestic abuse" that also included a list of rules for Pereslete to follow once they were back together, including that she give him affection and text him at certain times each day. Pereslete and Ilk spent some time together in the following months, but on April 14, 2015, Pereslete called 911 for assistance when Ilk refused to leave her house.

¶ 3 The next day, Pereslete made plans to go out with Wilson, a childhood acquaintance with whom she had recently reconnected, via text messages between them. Apparently concerned they may encounter Ilk on their date, Pereslete asked Wilson to bring a firearm. That evening, Wilson picked Pereslete up from the construction site where she was working. At trial, differing accounts were presented of what then occurred.

¶ 4 Pereslete and Wilson testified that as they were leaving in Wilson’s truck, Ilk drove up to the construction site at a high rate of speed and parked his truck in the driveway, blocking the exit. Ilk immediately began shooting a handgun at them, firing many shots in rapid succession. Attempting to flee, Wilson "floored it," driving his vehicle around Ilk’s and over a lumber pile. Ilk continued firing, and hit both Pereslete and Wilson during the incident. Pereslete frantically called 911 and Wilson drove them toward the Eureka police station, four miles away, while both were bleeding from their wounds

. Ilk pursued them.

¶ 5 Eureka Police Chief Ian Jeffcock had heard Pereslete’s 911 call come in, responded to the area, and attempted to stop Ilk. Ilk ignored Jeffcock and continued driving after Wilson and Pereslete. Ilk testified he did not pull over because he was still scared for his life. At the station, Wilson jumped from the vehicle and ran for help, while Pereslete hid under the truck. Ilk pulled in next to Wilson’s truck, but was immediately arrested. Despite their gunshot wounds

, Wilson and Pereslete survived, though with lasting injuries.

¶ 6 Ilk claimed he acted with justifiable use of force, and testified that he had driven to the construction site to talk with Pereslete. He claimed that upon arriving at the job site, he parked his truck, and Wilson began shooting first while accelerating toward him. Ilk claimed he returned fire at Wilson and Pereslete in self-defense. Ilk further claimed he then drove to the police station to report the incident, unaware that he was pursuing Pereslete and Wilson.

¶ 7 Neither Ilk nor his vehicle had been struck by any bullets. Wilson was shot in the right hand and left arm, and his head had been grazed by either a bullet or piece of glass; Pereslete was shot in left arm and right leg; and Wilson’s truck had been shot at least seven times, including two shots through the front windshield, two shots through the driver’s side window, and two shots to the rear of the vehicle. When Officers searched Ilk’s truck, they found a loaded 9 millimeter pistol on the floor, with a round chambered, an open box of 9 millimeter ammunition, and a cell phone. Wilson had several firearms in his truck, including two .45 caliber handguns, one in a gun sock in the center console, and the second found on the floor in the back of the cab. None of Wilson’s firearms had a round chambered. Scattered throughout Wilson’s truck, including the engine compartment, were several types of spent brass shell casings, including .45 caliber casings. Wilson explained that he had been recreational shooting earlier, during which time he fired from his truck, depositing the casings inside. Wilson testified that he did not handle any firearm during the altercation until they were on the road to the police station, at which time he placed one of his .45s upon the center console, which likely fell into the back of the truck’s cab at some point prior to its recovery by police.

¶ 8 Montana Highway Patrol Trooper Neil Duram was the first to arrive at the construction site where the shooting occurred. Duram identified tire acceleration marks in the driveway, and vehicle tracks that ran off the driveway and over a pile of lumber. He located a pile of empty 9 millimeter shell casings, and a few feet away, one spent .45 casing. With night falling, he sketched the location of these items, and measured the distance from the acceleration marks to the .45 casing. However, he did not measure the distance between the various casings or the lumber pile. Detective Duane Rhodes of the Lincoln County Sheriff’s Office, who specialized in sex crimes, took the lead in the investigation. By the time he arrived at the scene, it was dark, but Rhodes took photographs and collected the casings as evidence. He returned to the scene several weeks later and took daytime photos, which were turned over to the Defense. When the Defense offered these photos at trial, the State objected on the ground they did not accurately depict the scene given the time that had lapsed, but the District Court admitted the photos for demonstrative purposes.

¶ 9 During trial, Detective Rhodes testified that he had also visited the scene within a day or two after the shooting, and "believe[d]" he had taken additional photographs at that time. He noted that workers had already resumed construction on the house at this point and disturbed the scene. The Defense then moved to dismiss based on a Brady violation, as Rhodes’ photographs, taken a day or two after the incident, had not been provided to the Defense. The Defense argued that the photos were exculpatory because the daylight photographs would more accurately depict the scene than the photographs taken several weeks later when the scene had changed significantly, due to it being an active construction site. Prosecutors responded they were unsure if the photographs existed, but if so, the photographs would have been available to the Defense through their open file policy. Prosecutors also noted the later photographs would not have depicted the location of the casings because they were bagged as evidence the night of the shooting, and the scene had changed as construction on the house had already resumed. The District Court denied the Brady motion, but stated the Defense could raise the issue later upon more sufficient information. The Defense did not raise the issue again, and the record is unclear on whether the Defense or the State attempted to locate the missing photographs, or if they exist.

¶ 10 While settling jury instructions, the State proposed the following mental state definitions: "A person acts knowingly when the person is aware of his or her conduct" and "A person acts purposely when it is the person's conscious object to engage in conduct of that nature." The Defense objected:

[The Defense]: The offenses Mr. Ilk faces are result oriented that should call for the result oriented definition of knowing and purpose.

[The Prosecution]: I disagree with [the Defense]. I think that the element of the offense of assaults, as well as if he is aware of a high probability or aware of his conduct that it is likely to cause death, or serious bodily injury, or bodily injury, knowingly is a pertinent mental state.

The District Court gave the conduct-based instructions of knowingly and purposely as the State had proposed in its written instructions.

¶ 11 During closing, the State argued that the evidence corroborated Pereslete and Wilson’s account, noting that the windows in Wilson’s truck were closed at the time of the shooting, that all bullet holes were going into Wilson’s truck, and that Wilson’s guns did not have a round chambered, suggesting Wilson did not fire from his truck. The State also noted that Ilk fired into the back of Wilson’s pickup, inconsistent with a self-defense claim, and that, despite claiming to fear Wilson, Ilk pulled up next to Wilson’s pickup at the police station. The State suggested the .45 casing found at the scene fell out of Wilson’s truck when he ran over the lumber.

¶ 12 The Defense argued the evidence was consistent with Ilk’s account, including the .45 casing found at the scene. The Defense attacked the thoroughness of the State’s investigation, including the lack of precise measurements with regard to the location of the .45 casing found at the scene, the failure to conduct gunshot residue testing on Wilson, the failure to obtain and test bullets, and using a detective who was not experienced in shooting crimes. The Defense likewise attacked the State for not producing the more contemporaneous daytime photos of the scene, leaving the jury with only daytime photos taken weeks afterwards when the scene had changed substantially, in addition to the nighttime photographs.

¶ 13 The...