State v. Kaarma
| Decision Date | 08 February 2017 |
| Docket Number | DA 15-0214 |
| Citation | 390 P.3d 609,386 Mont. 243 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Markus Hendrik KAARMA, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Nathaniel S. Holloway, Paul T. Ryan, Paul Ryan & Associates, Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Andrew Paul, Jennifer Clark, Karla Painter, Deputy County Attorneys, Missoula, Montana
¶1 Markus Hendrik Kaarma (Kaarma) appeals from his December 17, 2014 deliberate homicide conviction by a jury. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 In April 2014, the Missoula, Montana, home Kaarma and his partner Janelle Pflager (Pflager) shared with their infant son was burglarized two times. Each time the burglar entered the garage through the partially open garage door. Concerned about safety, Kaarma and Pflager installed security cameras in and around their garage, changed how they parked their cars, started locking the doors to the house, created a perimeter to discourage entrance into the garage, encouraged their neighbors to do the same, and placed a purse with identifying information in the garage. Kaarma was vocal about his anger regarding the burglaries and his perception that the police were not "dealing with the situation." Several witness testified that Kaarma told them he was "up the last three nights with a shotgun wanting to kill some kids," that "he was going to shoot [the burglars]," and "he was not kidding, [the witnesses] were going to see this on the news." Witnesses testified that Pflager knew the burglars would come back because "we are going to bait them," and that their guns were loaded. Kaarma and Pflager testified to "living in fear" about the burglaries and decided to be "a little proactive."
¶4 In the early morning hours of April 27, 2014, Kaarma and Pflager were at home. Pflager left the garage door partially open to air out after smoking a cigarette. While inside the home, Kaarma and Pflager saw on the security camera an intruder enter their attached garage. The intruder was well into the garage and "jiggling" the car handles. Kaarma took his shotgun, walked out the front door of the home, turned and stood in front of the partially open garage door. Kaarma testified that he shouted into the garage and a voice or "metal on metal" sound came from inside the garage. He testified he thought he was "going to die," then "aimed high," fumbled with the shotgun, and discharged four shots into his garage in a sweeping motion from right to left. Shotgun pellets sprayed the inside garage wall, and several penetrated the home causing damage. The intruder was shot twice, once in the arm and once in the head. The intruder, later identified as Diren Dede, died as a result of his injuries.
¶5 Kaarma was charged with deliberate homicide. A trial was conducted in Missoula County beginning on December 1, 2014. The jury found Kaarma guilty of deliberate homicide. On February 12, 2015, the District Court sentenced Kaarma to seventy years in the Montana State Prison. Kaarma appeals. Additional facts specific to Kaarma's arguments are included below.
¶6 All of the issues raised by Kaarma invoke an application of the abuse of discretion standard. "A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice." Ammondson v. Northwestern Corp ., 2009 MT 331, ¶ 30, 353 Mont. 28, 220 P.3d 1.
¶7 We review a district court's decisions regarding jury instructions for an abuse of discretion. Ammondson , ¶ 30. The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Dunfee , 2005 MT 147, ¶ 20, 327 Mont. 335, 114 P.3d 217.
The district court has broad discretion in formulating jury instructions. State v. Spotted Eagle , 2010 MT 222, ¶ 6, 358 Mont. 22, 243 P.3d 402. To constitute reversible error, any mistake in instructing the jury must prejudicially affect the defendant's substantial rights. Spotted Eagle , ¶ 6.
¶8 We review for abuse of discretion a trial court's ruling on a motion for change of venue. Section 46–13–203(1), MCA ; State v. Devlin , 2009 MT 18, ¶ 15, 349 Mont. 67, 201 P.3d 791. In exercising its discretion, the court is bound to uphold the defendant's constitutional right to a trial by an impartial jury. State v. Kingman , 2011 MT 269, ¶ 40, 362 Mont. 330, 264 P.3d 1104. The burden to demonstrate an abuse of discretion is on the party seeking reversal of an unfavorable ruling. Devlin, ¶ 15.
¶9 For a court to presume the defendant was prejudiced by pretrial publicity, a defendant must demonstrate that "an irrepressibly hostile attitude pervades the jury pool or that the complained-of publicity has effectively displaced the judicial process and dictated the community's opinion as to the defendant's guilt or innocence." Kingman , ¶ 32. A court can only find presumed prejudice in extreme circumstances amounting to "a circus atmosphere or lynch mob mentality." Kingman , ¶ 32. The bar is very high to prove this assertion. Kingman , ¶ 32.
¶10 We review for abuse of discretion a district court's denial of a challenge for cause of a prospective juror. State v. Allen , 2010 MT 214, ¶ 20, 357 Mont. 495, 241 P.3d 1045. When reviewing challenges for cause, a court abuses its discretion if it fails to excuse a prospective juror whose actual bias is discovered during voir dire or whose statements raise serious doubts about the juror's ability to be fair and impartial. State v. Heath , 2004 MT 58, ¶ 7, 320 Mont. 211, 89 P.3d 947 ; Allen , ¶ 25. Errors in the jury selection process are structural; therefore, reversal is required if the district court abused its discretion by denying the defendant's challenge for cause, the defendant uses a preemptory challenge to remove the juror, and the defendant used all of his preemptory challenges. Heath , ¶ 7.
¶11 The Montana Supreme Court reviews a district court's evidentiary rulings for abuse of discretion. State v. Huerta , 285 Mont. 245, 254, 947 P.2d 483, 489 (1997). This includes the admissibility of character evidence. Huerta , 285 Mont. at 254–55, 947 P.2d at 489–90 ; accord State v. MacGregor , 2013 MT 297, ¶ 44, 372 Mont. 142, 311 P.3d 428. A district court has broad discretion to determine whether evidence is relevant and admissible. State v. Duffy , 2000 MT 186, ¶ 43, 300 Mont. 381, 6 P.3d 453.
¶12 The district court has great latitude in ruling on the admissibility of expert testimony, and the ruling will not be disturbed without a showing of abuse of discretion. State v. Stout , 2010 MT 137, ¶ 59, 356 Mont. 468, 237 P.3d 37.
¶13 Issue One: Did the District Court abuse its discretion by instructing the jury on justifiable use of force in defense of a person?
¶14 Prior to trial Kaarma notified the court and State he planned to rely on the affirmative defenses of "justifiable use of force in defense of self, others, [and] home," and proposed jury instructions regarding the same. Kaarma claimed self-defense to the officers responding to the shooting. During his opening statement, Kaarma's attorney argued Kaarma shot because "in his mind he's going to get attacked." Kaarma testified he "believed his life was threatened and he was going to get attacked," and that he was "fearful, concerned, and angry." The defense provided expert testimony regarding his state of mind and the "imminent fear that was occurring." Kaarma elicited testimony that a person may, depending on the circumstances, protect against a forcible felony in the home, as well as when the person feels his or her life is in danger. He elicited testimony from witnesses regarding the reasonableness of defending oneself.
¶15 At the jury instruction settlement conference, Kaarma argued the only affirmative defense raised at trial was use of force in defense of an occupied structure and objected to the justifiable use of force in defense of a person and the use of force by aggressor jury instructions. He argued that § 45–3–102, MCA, defense of person, requires a commensurate response to the nature of the threat, where defense of an occupied structure only requires the actor's reasonable belief that the use of force was necessary to terminate the unlawful entry. Counsel asserted the defendant "gets to pick which justifiable use of force [theory, he] wants to proceed under." The State objected, arguing Kaarma was not inside the occupied structure when he used deadly force and therefore the defense of an occupied structure instruction does not apply.
¶16 The District Court determined the State "has the right to have the justifiable use of force in defense of self" instruction given based on Kaarma's arguments that he was in fear he was about to be assaulted or killed outside of his home. Both defense of an occupied structure and defense of person jury instructions were given. The District Court directed jurors to...
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