State v. Kutnyak

• Decision Date: 02 August 1984
• Docket Number: No. 82-462,82-462
• Citation: 685 P.2d 901,211 Mont. 155,41 St.Rep. 1277
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joseph KUTNYAK, Defendant and Appellant.
• Court: Montana Supreme Court

Page 901

685 P.2d 901

211 Mont. 155

STATE of Montana, Plaintiff and Respondent, v. Joseph KUTNYAK, Defendant and Appellant.

No. 82-462.

Supreme Court of Montana.

Submitted March 15, 1984.

Decided July 3, 1984.

Rehearing Denied Aug. 2, 1984.

Jeffrey H. Langton argued, Hamilton, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Dorothy McCarter argued, Asst. Atty. Gen., Helena, Robert B. Brown, County Atty., Hamilton, Margaret Tonon argued, Deputy County Atty., Hamilton, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from the District Court of the Fourth Judicial District, County of Ravalli, from the conviction of the crime of mitigated deliberate homicide following a jury trial. The appellant, Joseph Kutnyak, was sentenced to thirty years in the State Prison.

We affirm.

The appellant shot and killed Charles Hayes on February 19, 1982. Prior to this killing there were a number of rather complicated incidents and contradictory facts concerning the relationship of the two men in the spring of 1978. The decedent, Hayes, had purchased land in the West Fork area of Ravalli County, known as the Hughes Creek Drainage. He had moved to the State of Montana from Nevada where he had spent some time in a Nevada jail on an assault conviction after shooting a man in a bar fight. Following his arrival in Montana, he built a cabin in an isolated area to be occupied by himself and his wife. During this building period, his wife Susan worked in Nevada and visited him periodically to assist in the building of the cabin. She did not move to Montana until February of 1979.

According to the record, the first contact that Hayes and his wife had with any member of the Kutnyak family was in the late spring of 1979 when they met Debbie Kutnyak in Darby, Montana. They felt sorry for her inasmuch as she was out of work and in need, and invited her to stay in their home until she could find a place to live. According to Susan Hayes' testimony Debbie Kutnyak and her child stayed at the cabin for some time. Susan assisted Debbie and her child in making arrangements to get housing. Debbie told the Hayes family that her husband had been killed in a mine accident in Colorado. This proved to be false, for a short time later, after Debbie located a cabin in the Hughes Creek area, her husband joined her, and the family took up residence.

Sometime later in September 1979, Hayes and several other persons terrorized the appellant and his family by arriving after dark one night, shouting and shooting at the cabin that housed the appellant's family. According to the appellant and his wife, this went on for several hours during the night. The next morning he and his wife went to town to see the county attorney to have aggravated assault charges filed against Hayes and his companions. As a result of these charges being filed against Hayes and his companions, the deceased was put on probation for a five-year period, was ordered not to have any guns in his house or in his possession and was directed not to have more than .05% blood alcohol count at any time during his probation period.

Following his conviction and placement on parole, there were numerous incidents testified to by the appellant, Susan Hayes and other witnesses for the State, showing that Hayes violated the conditions of his parole. From the testimony produced at trial there is little dispute that Hayes violated the conditions of his parole with impunity. His parole officer, Sally McRae, testified that she felt that she had an improving relationship with him during the period of parole but acknowledged that he was "very angry and hostile toward law enforcement." She had an arrangement with him that he would report in once a month. During the winter months when the area in which he lived was snowed-in, he would send a report out by mail which the Postal Service covered twice a week.

In addition to the above facts concerning the hostility of Hayes and his violations of the parole provisions, there was testimony by the sheriff's office that it had some problems in the Hughes Creek area involving Hayes pertaining to miners who were exercising mineral rights in the area; problems with private citizens or law enforcement people in the area; problems involving people either fishing or cross-country skiing who were made aware of Hayes' possessive tendencies concerning the property near his cabin involving the use of his Doberman dog.

Following the 1979 aggravated assault incident, the record shows that the Kutnyak and the Hayes families did not have any contact with each other until the summer of 1980, when they met at a hot springs just over the divide from their property and decided to try and reestablish a friendly relationship. From that time until Hayes' death, there was contradictory testimony as to the relationship between the parties. Hayes' wife testified in detail as to the contacts between the parties, including but not limited to the exchange of presents on birthdays and Christmas, exchange of dinners, hunting trips and trades made for supplies and for marijuana. Hayes grew marijuana on their plots for personal use and for trading purposes in the area. There is also testimony that the two men hunted together. Also, the Kutnyak family would stay with Susan Hayes while the men were out hunting. There was also testimony from other State witnesses showing that the two men appeared to get along and did not exhibit hostile behavior in their presence.

On February 1, 1982, Ken and Lisa Schultz, neighbors of the Kutnyaks, stopped at the Kutnyaks' residence after returning late from town and stayed there until approximately 4:00 a.m. listening to the appellant's stories about Chuck Hayes. The appellant related many stories which would be repeated to other persons over the next several weeks concerning Chuck Hayes' alleged threats to the appellant and to his family; his efforts at trying to get the appellant to commit crimes for him and similar stories. Ken Schultz became so concerned about the situation that he reported it to Detective Pete Clarkson of the Ravalli County Sheriff's office. Schultz told him that there might be problems brewing in the West Fork area.

Clarkson traveled to the West Fork shortly thereafter to meet with Ken Schultz and another neighbor, John Houston, both of whom told the detective the stories they had been told by the appellant. Neither of the men had independent information which they could supply to the detective other than what had been told to them by the appellant. Later, at a subsequent meeting at the home of John Houston, Clarkson took statements from Houston and Ken Schultz. After hearing the tapes of that meeting, it was agreed that the sheriff's office and the probation office still lacked probable cause for a search warrant, and a meeting at the appellant's home was set up for February 19, the date of the homocide. The purpose of this meeting was to attempt to observe Hayes in violation of his parole.

On the early morning of February 19, 1982, Detective Clarkson, Probation Officer Sally McRae and Undersheriff Ron Fisher left the sheriff's office and arrived at the appellant's home at approximately 9:00 a.m., at which time appellant and his wife and children were present. The appellant had been made aware of their coming and agreed to their plan, which was to observe Hayes to see whether or not he had any kind of a weapon on him. After arrival at the appellant's home, the three law enforcement officers donned bullet-proof vests and took various positions in the cabin. Shortly after their arrival the appellant had his wife and their two children go to a home of a neighbor so they would not be in any danger.

During their wait, the three officers listened to appellant talk "non-stop," reiterating what they had previously been told about Hayes. In addition, during this time, the appellant told McRae and Clarkson in detail how he would kill Chuck Hayes. In his various talks with John Houston, the appellant had previously told Houston how he would shoot Chuck Hayes and that when he saw him he was going to bad mouth him and provoke him into drawing his gun. As the morning grew later and Hayes did not appear, Sally McRae said that it would be necessary for her to go to town because she had an appointment. She testified that they had been told by the appellant that Hayes would arrive for his mail anytime between 9:30 a.m. and 11:00 a.m. At 12:15 p.m. the three finally left to return to town. According to the appellant, Hayes arrived at the mailbox in front of his house fifteen minutes after the three law enforcement officers' departure. One of the interesting factors testified to by all three officers was that, after they notified the appellant that they were returning to town, he began to ask questions about what constituted self-defense. Before the officers left, they suggested that if Hayes came that day, the appellant should not answer the door.

According to the appellant's statement, Hayes drove up on his snowmobile, parked it near the mailboxes, came to the Kutnyak cabin and rapped on his door. He testified that he did not answer the door and waited awhile until Hayes went back to his snowmobile. Appellant then ruffled-up his hair, opened the door and told Hayes that he had been sleeping. Hayes entered the cabin, took off his pistol holster and put it on the table. The two men then spent sometime together smoking marijuana and drinking. Appellant testified that, as Hayes was about to leave, Hayes insulted him and told him that he would kill him. Hayes picked up his gun, put it back on and walked to his snowmobile. Appellant followed him outside, carrying his 12mm semi-automatic pistol in the back of his pants.

The testimony concerning what happened, of course, is that of the appellant. He testified that after Hayes got next to the snowmobile, he pulled out his gun and shot Hayes five times. He then...