State v. Keefe

• Decision Date: 13 June 1988
• Docket Number: No. 87-92,87-92
• Citation: 759 P.2d 128,45 St.Rep. 1034,232 Mont. 258
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Steven Wayne KEEFE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 128

759 P.2d 128

232 Mont. 258

The STATE of Montana, Plaintiff and Respondent, v. Steven Wayne KEEFE, Defendant and Appellant.

No. 87-92.

Supreme Court of Montana.

Submitted May 10, 1988.

Decided June 13, 1988.

John Keith (argued), Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Kathy Seeley (argued), Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, for plaintiff and respondent.

HARRISON, Justice.

Defendant Steven Wayne Keefe appeals his conviction for three counts of deliberate homicide, Sec. 45-5-102(1)(a), MCA, and one count of burglary, Sec. 45-6-204(1), MCA. The Eighth Judicial District Court in and for Cascade County, the Hon. Thomas McKittrick presiding, sentenced Keefe to three terms of life imprisonment (to be served consecutively), ten years for burglary, four ten-year terms for the use of a weapon in the offenses and designated him a dangerous offender not eligible for parole. Keefe asserts only one issue on this appeal: Was evidence of Keefe's other crimes, wrongs and acts properly admitted under Rule 404(b), M.R.Evid., before the State presented evidence of the crime charged? We affirm.

Keefe was charged on March 21, 1986, with the deliberate homicides of Dr. David McKay, a Great Falls opthamologist, his wife, Constance McKay, and their 40-year-old daughter, Dr. Marian McKay Qamar, a Seattle, Washington, pediatrician, at the McKay home three miles south of Great Falls, Montana, on October 15, 1985. The complaint was amended on June 10, 1986 to include a charge that Keefe had stolen Constance McKay's purse from the McKay home on the day of the homicides. After a hearing in Youth Court, Keefe was bound over to District Court for trial as an adult. He pled not guilty to all charges.

Keefe argues that his right to a fair trial on these charges was compromised when the State began its case-in-chief with evidence of other burglaries committed by Keefe that were not charged in this complaint as amended. He contends that such unrelated evidence led the jury to overestimate the probative value of the evidence of burglary at the McKay home and also established him in the eyes of the jurors as an evil man deserving punishment.

There is no argument that the McKays and Dr. Qamar died as a result of criminal acts. The controlling question is whether the State established, prima facie, that Keefe committed these criminal acts. Because there are no witnesses except perhaps a 3-year-old child, no fingerprints, and no confession other than two admissions made to fellow residents at Pine Hills School for Boys, the State was obligated to proceed with circumstantial evidence. Key pieces in this puzzle of circumstances were that Keefe had a history in Lewis and Clark County of similar and repeated burglaries and that at a burglary less than two weeks previous, a .44 magnum Ruger Redhawk revolver and ammunition were stolen. The F.B.I. later linked this weapon to the ballistics of two of the fatal shots in the McKay home. The F.B.I. expert said he could not be positive that the other fatal shot was fired by the gun. It was this gun that Keefe asked a friend to pawn for him on October 16, 1985, the day after the McKay homicides. The gun was recovered by the Cascade County sheriff at the pawnshop on March 4, 1986.

The record demonstrates that there is more than sufficient evidence--albeit circumstantial evidence--to support this verdict and judgment. Circumstantial evidence is not necessarily inferior in quality and, in fact, often is most convincing and satisfactory. Any evidence that is material, relevant and competent will be admitted in a criminal trial. If the facts and circumstances are of such quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt, the court must accept the verdict of the jury. State v. Cor (1964), 144 Mont. 323, 326-27, 396 P.2d 86, 88-89, citing State v. Espelin (1938), 106 Mont. 231, 76 P.2d 629; State v. DeTonancour (1941), 112 Mont. 94, 112 P.2d 1065.

We must then examine the record to determine what are the known facts regarding the McKay and Qamar homicides and the circumstances concerning Keefe, which when tied together, lead to the conclusion that Keefe was at the McKay home on the afternoon of the homicides and, in fact, committed the homicides.

Joseph McKay, the son of David and Constance McKay, arrived at his parents' home for a family dinner at about 5:15 p.m. October 15, 1985. His sister, Marian Qamar, and her 3-year-old daughter, Monya, had flown in for a visit earlier that day. Another sister, Octavia McKay Joyner, had greeted the Qamars and had left them at the McKay home at about 2:30 p.m. Joseph McKay entered through an unlocked ground-level door, which opens into the family room. He noticed that a pot of potatoes was burning on the stove in the kitchenette at the rear of the room. He testified that he removed the pot from the stove's burner, and then turned to a hallway, which led to the laundry room on the left, to the garage and a root cellar at the end, and to a staircase to the main floor on the right.

As he entered this hallway, Joseph McKay testified that he found his mother lying on the floor in a pool of blood and realized that she was dead. When he stood up to alert the rest of the family he saw Marian Qamar also lying in the hall and apparently dead. He returned to the family room to call authorities just as his sister, Octavia, and her husband, Don Joyner, drove up to the house. He urged them to keep their children outside and allowed Don Joyner, who is a practicing physician, into the house. Dr. Joyner checked for a pulse on Marian Qamar. He could find none and determined that both women were dead. Sheriff's dispatchers who received Joseph McKay's call told him to exit the house and dispatched deputies immediately. Joseph McKay and Dr. Joyner left the house without climbing the stairs to the main floor.

Sheriff's deputies arrived within minutes and were told of the two bodies on the lower floor and that Dr. McKay and Monya Qamar were unaccounted for. The deputies entered the house through the ground-level door Joseph McKay had used, stepped past the bodies of the two women and came to the base of the stairs leading to the upper floor. Here they noticed six empty shell casings lying on the rug. They stepped over these casings and climbed six steps to a landing that faces the main door to the house and another six steps from this landing to the main floor. As the deputies proceeded through the dining area they noticed Dr. McKay lying dead in the adjacent kitchen. The deputies then checked the bedroom and found Monya Qamar sleeping in one of the beds. One of the deputies picked the girl up and carried her down one flight of stairs to the main door and attempted to open the main door but had to move a heavy rug that had been pushed up against the bottom of the door.

Deputy Jim Bruckner, one of the first sheriff's deputies on the scene, was qualified at trial as a police expert on crime reconstruction. He testified that the investigation indicates that Dr. McKay, who was shot once in the back of the head from the left, was the first victim shot. There were wine glasses laid out on a counter in front of the body and a wine glass lay broken in his hand. This, he said, shows Dr. McKay was unaware of any danger when he was shot. Investigators theorize that Dr. Qamar came to investigate the noise in the kitchen, saw the killer, turned, and was shot at five times as she fled down the two flights of stairs. She may have tried to open the main door, but was prevented from doing so because the rug stopped the door. As she got to the hallway at the gound-level she was struck by a bullet in the back and also by one that tore through her right ankle, and fell either dead or dying in the hallway. Three bullets were located in the walls adjacent to the staircase. The gunman emptied the chamber of the weapon used to kill the victims at the base of the stairs and reloaded. Constance McKay then entered the home from the concrete root cellar adjacent to the garage to find her daughter lying on the hall floor. As she knelt to attend to her daughter, the gunman stepped out and fired a shot into the left side of Mrs. McKay who reeled and fell twenty feet away. Another shot was fired at Constance McKay but missed her and lodged in a baseboard heater. In total, eight .44 magnum rounds were fired in the McKay house.

Upon completion of autopsies, the Cascade County deputy coroner set the time of death as approximately 4:30 p.m. While preliminary investigations revealed no other crime had occurred in the house, deputies later found a pile of coins on a dirt road near the house and family members subsequently determined the purse belonging to Constance McKay was missing from the McKay home. The purse never has been found.

Keefe was seventeen years old at the time of the homicides. At the time, Lewis and Clark County law officers suspected his involvement in four recent burglaries, at one of which a .44 magnum Ruger Redhawk revolver was stolen. Keefe travelled to Great Falls on October 10, ostensibly to seek employment at a new Buttrey's supermarket; he stayed the weekend with several acquaintances and showed the .44 revolver to his roommates and several of their friends.

The day after the McKay homicides, Keefe requested that a roommate who was of legal age, Michael Hayashi, assist him in pawning a portable radio/stereo stolen from one of the recent Helena burglaries and later the .44 magnum Ruger Redhawk. Keefe had Hayashi pawn the .44 magnum Ruger Redhawk revolver, the weapon used to kill the victims, for $75 because he said he needed the money for a trip to Helena, even though a second roommate, Toby Scott Yadon, a day or two before the victims were killed, offered him $250 for that same .44 magnum Ruger Redhawk revolver. Keefe had refused this offer because he had said he wanted...