State v. Myran

• Decision Date: 08 November 2012
• Docket Number: No. DA 11–0499.,DA 11–0499.
• Citation: 2012 MT 252,289 P.3d 118,366 Mont. 532
• Parties: STATE of Montana, Plaintiff and Appellee, v. Jay J. MYRAN, Defendant and Appellant.
• Court: Montana Supreme Court

366 Mont. 532

289 P.3d 118

2012 MT 252

STATE of Montana, Plaintiff and Appellee,

v.Jay J. MYRAN, Defendant and Appellant.

No. DA 11–0499.

Supreme Court of Montana.

Submitted on Briefs Sept. 26, 2012.

Decided Nov. 8, 2012.

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

For Appellee: Steve Bullock, Montana Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney, Bozeman, Montana.

Justice MICHAEL E. WHEAT

delivered the Opinion of the Court.

¶ 1 Defendant Jay J. Myran (“Jay”) appeals his conviction of deliberate homicide in the Eighteenth Judicial District Court, Gallatin County. We affirm.

ISSUE

¶ 2 We restate the sole issue on appeal as follows:

¶ 3 Did the District Court err by instructing the jury on intoxication in accordance with § 45–2–203, MCA

, because the statute violates a criminal defendant's due process right to present a defense?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Jay's appeal follows his conviction for deliberate homicide stemming from the shooting of Gayle Brewster (“Gayle”), his former roommate in Three Forks, Montana. Gayle rented a trailer from Vickie Veltkamp (“Vickie”) on Pyfer Road outside Three Forks beginning in November 2008. Jay joined Gayle as a roommate, although there is some indication that the two had previously had a more intimate relationship. Sometime in March 2009, Jay's son L.M. came to live with them. L.M.'s presence in the small trailer apparently added to burgeoning tensions between Jay and Gayle.

¶ 5 Gayle and Jay frequently drank alcohol together at night, and often argued. On the day of Gayle's death, May 12, 2009, Jay drank with Gayle and his friend and sometime coworker Aaron Bruce (“Aaron”). Jay, Gayle, and Aaron had been drinking since the afternoon. Gayle and Jay had begun to argue, apparently over whether Gayle could use Jay's truck. L.M. and Bruce testified that during the course of the argument, Jay repeatedly said, “Let's kill Gayle.” L.M. did not consider this to be more than “drunk talk,” although Jay had made similar statements for weeks.

¶ 6 Aaron left sometime during the late afternoon, and Jay and Gayle continued to fight and drink. According to L.M., Gayle eventually retreated to her room. Jay continued to say “Let's kill Gayle,” but L.M. still considered it to be “drunk talk.” At some point, Jay took out his .410 shotgun and set it on a turtle cage by the trailer door. Jay testified that he took the gun out with the intention to shoot rabbits. At some later point, Gayle exited her room and the argument resumed. L.M. was playing video games in the same room, and he testified that he saw Jay take out a shell and load the shotgun while arguing with Gayle. L.M. testified that Jay then raised the gun towards Gayle, Gayle walked towards him and put the gun in her mouth, said “Do it, Cowboy,” and the gun went off, killing Gayle. L.M. did acknowledge at trial that he previously told two Gallatin County detectives that Jay put the gun in Gayle's mouth. After the gun went off, Jay walked over to L.M. and asked him, “Now you think you have what it takes to be in the military?” Jay then put Gayle's body on a rug and moved it onto the porch. After he cleaned up the blood, Jay continued to drink and eventually fell asleep. Jay claimed he had no recollection of saying “Let's kill Gayle” or taking the shotgun out, loading it, or cocking it. He has continued to maintain that the shooting was an accident, a result of his drunken brandishing of the loaded weapon and Gayle “ jerking” it towards her mouth.

¶ 7 The next morning, May 13, 2009, Jay woke up L.M. and ordered him to help put Gayle's body in a burn barrel outside. They put the body in the barrel and Jay started a fire, stoking it throughout the day. Jay withheld L.M. from school to prevent him from talking about the incident and told L.M. to avoid talking about Gayle in the past tense.

¶ 8 Vickie was on vacation at the time of Gayle's death, and she and her husband returned to Three Forks on May 24, 2009. Vickie generally asked Gayle to watch the house, water the plants, and feed her cat while they were away. However, when she returned on May 24, the cat had not been fed, the plants were dying, and the mail had not been collected. Vickie tried to contact Gayle over the next several days but was unsuccessful. Vickie also noticed that the brush surrounding the burn barrel had been burned, indicating it had been used contrary to Vickie's instructions not to. Vickie did not see Gayle or her dog Boomer, but Jay and L.M. were still around. Vickie called law enforcement on May 27, 2009, and reported Gayle missing.

¶ 9 Two Gallatin County Sheriff's Office deputies visited Jay at the trailer following Vickie's call on May 27, 2009. The deputies informed Jay that Gayle had been reported missing, and he said Gayle had been gone for “some time.” When the deputies looked in Gayle's room, they noticed her inhalers, wallet, purse, and cell phone remained.

¶ 10 The next day, Jay informed Vickie that he and L.M. would be moving as soon as L.M. was out of school. Jay told Vickie he had a job lined up in Billings, Montana. Jay and L.M. left shortly after L.M. came home from school on May 29, 2009. When Vickie inspected the trailer, she noticed that only Gayle's possessions remained.

¶ 11 The Gallatin County Sherriff's Office organized a search for Gayle. On June 6, 2009, a member of the search team noticed a bone in the burn barrel. A medical examiner was able to identify and collect 34 pieces of human bone from the barrel. One fragment of tibia had two surgical screws and a piece of fibula had a metal plate. This surgical hardware matched what had been used to repair a broken ankle Gayle suffered in 2006.

¶ 12 Gallatin County detectives found Jay in Billings, Montana, on June 9, 2009. Jay signed a waiver of rights and agreed to an interview. During the interview, Jay confessed that Gayle “came out and put that shotgun in her mouth, bud.” Jay denied pointing the gun at Gayle and claimed that an inadvertent “jerk” caused the gun to go off. Jay further claimed that he burned the body to protect his son.

¶ 13 Jay was charged with deliberate homicide, § 45–5–102(1)(a), MCA

, and tampering with physical evidence, § 45–7–207, MCA, by information on June 24, 2009. As a defense at trial, Jay asserted that he was guilty of negligent homicide based on his intoxicated condition and supposedly reckless behavior with the shotgun. During the settling of instructions, the State proposed an instruction on intoxication pursuant to § 45–2–203, MCA

. The State's Proposed Instruction 7 read:

A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the Defendant proves that he did not know that it was an intoxicating substance when he consumed the substance causing the condition.

¶ 14 Following some prompting by the court, defense counsel objected to State's Proposed Instruction 7. The defense claimed the objection was based on “impermissible burden shifting and also due process consistent with Justice Nelson's dissent and Justice Cotter's dissent [in State v. McCaslin, 2004 MT 212, 322 Mont. 350, 96 P.3d 722]

concluding that [ State v.] Egelhoff[, 272 Mont. 114, 900 P.2d 260 (1995) ] should stand on independent state grounds.” The court overruled the objection and gave the jury the instruction as Court's Instruction 19. The court also instructed the jury on, inter alia, deliberate homicide, the State's burden of proof, the presumption of innocence, the union of the criminal act and mental state, and negligent homicide. The jury thereafter convicted Jay of deliberate homicide.

¶ 15 The District Court sentenced Jay to 100 years for the deliberate homicide, 10 years for tampering with evidence, and an additional 10 years for the use of a firearm, all to be served consecutively in Montana State Prison. No time was suspended and the court found Jay ineligible for parole. Jay's appeal followed.

STANDARD OF REVIEW

[1]

[2]

[3]

¶ 16 We review jury instructions in criminal cases “to determine whether the instructions as a whole fully and fairly instruct the jury on the applicable law.” State v. Smith, 2005 MT 325, ¶ 20, 329 Mont. 526, 127 P.3d 353. District courts are given broad discretion when instructing a jury, and “reversible error will occur only if the jury instructions prejudicially affect the defendant's substantial rights.” State v. Strauss, 2003 MT 195, ¶ 47, 317 Mont. 1, 74 P.3d 1052. Moreover, statutes are presumed to be constitutional, and the challenger bears the burden of proving that the statute is unconstitutional by beyond a reasonable doubt, and any doubts are resolved in favor of the statute. State v. Turbiville, 2003 MT 340, ¶ 18, 318 Mont. 451, 81 P.3d 475.

DISCUSSION

¶ 17 Did the District Court err by instructing the jury on intoxication in accordance with § 45–2–203, MCA

, because the statute violates a criminal defendant's due process right to present a defense?

¶ 18 A. Is Jay's appeal properly before this Court?

[4]

[5]

¶ 19 During the settling of instructions, the following colloquy occurred between the court and defense counsel:

THE COURT: State's 7 is the intoxication instruction. The intoxicated condition is not a defense; a person is still criminally responsible for his conduct. Mr. Ohman, is there any record you want to make?

COUNSEL: Your Honor, I don't—I mean, this is right out of the statute and I mean that's the law. It went up to the U.S. Supreme Court so it's not like we can argue against it.

THE COURT: Did you read State v. McCaslin?

COUNSEL: I did not read State v. McCaslin.

THE COURT: Would you like to?

COUNSEL: Sure.

THE COURT: And along with it, State vs. Smith.

COUNSEL: Okay. Thank you.

THE COURT: To save time, you can skip to the Dissent.

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