State v. Reiner

• Decision Date: 07 December 1978
• Docket Number: No. 14144,14144
• Citation: 587 P.2d 950,35 St.Rep. 1861,179 Mont. 239
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ralph REINER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 950

587 P.2d 950

179 Mont. 239

STATE of Montana, Plaintiff and Respondent, v. Ralph REINER, Defendant and Appellant.

No. 14144.

Supreme Court of Montana.

Submitted Sept. 14, 1978.

Decided Dec. 7, 1978.

A. Michael Salvagni argued, Bozeman, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Sheri K. Sprigg argued, Asst. Atty. Gen., Helena, Gregory R. Todd argued, Deputy County Atty., Bozeman, Donald E. White, County Atty., Bozeman, for plaintiff and respondent.

DALY, Justice.

Ralph Reiner appeals from convictions on three counts of aggravated assault rendered in the District Court of the Eighteenth Judicial District, Gallatin County, the Honorable W. W. Lessley presiding.

On the evening of November 27, 1976, George Cooper and his son Stuart visited William Brainard of Belgrade, Montana, to obtain permission for themselves and Lawrence Wilt to hunt on Brainard's land in Gallatin County the following day. Brainard wrote a note granting them his permission. Brainard's property is separated from public access by land owned by a Mr. Karr of Dallas, Texas. For the previous two years defendant Ralph Reiner served as a caretaker of the Karr ranch which was posted against trespassing. Brainard telephoned defendant Reiner to inform him of the hunters crossing the Karr ranch onto Brainard's property the next day. Defendant acknowledges receiving the call. It is unclear from the testimony whether Brainard told the Coopers to stop in at defendant's house before proceeding through the Karr ranch. Brainard testified he did not think he gave them any such instruction. Defendant testified he understood Brainard would tell them to check in with him.

In the early morning hours of the following day, the Coopers and Wilt drove onto the Karr ranch in Wilt's pickup en route to the Brainard property. Using a key they had obtained from Brainard, they opened and closed the gates across the roadway and proceeded directly to their intended hunting area without stopping at defendant's house. The hunters denied they were directed to stop at the house, and since it was early they chose not to disturb him. Approximately 2:30 that afternoon, after a cold and unsuccessful hunt, the three unloaded their rifles and headed home. They placed two of the rifles in a rack mounted over the back window of the pickup cab and George Cooper held his rifle between his knees, with the muzzle pointing upward.

A short time after they passed defendant's house on their way out, the hunters saw defendant approaching them from behind in a Blazer at a high rate of speed. After continuing a short distance they pulled onto a wide portion of the roadway. Defendant pulled his vehicle up next to the driver's side of the pickup. He testified he had honked a great many times before the pickup pulled over. After stopping defendant immediately got out of his vehicle carrying a .357 Magnum revolver. The testimony differs as to whether defendant pointed his revolver at the hunters as he approached their vehicle, as all three hunters assert, or whether he put the weapon in his belt, as defendant claims. When he reached the driver's door defendant, in his words, "began firing questions" at the hunters in an excited and abusive manner. Stuart Cooper testified he tried to tell defendant that they were there with permission but that defendant refused to listen.

At some point in this verbal confrontation defendant became concerned about the rifle which George Cooper held between his legs. He testified he saw Cooper's hand go down toward the trigger and the muzzle of the rifle tip toward him. At that point, he testified, "there was no way to hold me back". Defendant's version is that he pulled his revolver from his belt, and fired a shot into the ground, and ordered the hunters to get out of the pickup. As Stuart Cooper exited past the right side of the seat, where his father had been seated, defendant became concerned about the rifle once again. He fired a second shot into the ground and told Stuart Cooper to keep his hands off the rifle.

The testimony differs as to when the shots were fired. According to Stuart Cooper, defendant had ordered the hunters out of the pickup when he first approached their vehicle and told them to march toward a cut off bank beside the road firing twice "to make us move a little faster". Lawrence Wilt testified that as defendant came around the front of his Blazer he pulled the revolver from under his coat, pointed it into the cab and told the hunters to get out, that he was going to kill them. After defendant ordered them out of the pickup, he fired twice returning the revolver to a pointing position after each shot, first toward Wilt, then toward George Cooper. George Cooper testified defendant had ordered the hunters out of the cab of the pickup and that he had already gotten out of the cab at the time defendant fired his first shot. He said defendant then ordered the three men to march toward a side hill and that as they marched, defendant fired a second shot.

All three hunters testified that defendant repeatedly threatened to kill them using abusive language. Defendant concedes he threatened to blow their heads off "at least once or twice".

After the hunters got out of the cab Stuart Cooper asked defendant if he was "Ralph". Defendant calmed down, and Cooper was able to tell him that the three had obtained written permission. George Cooper produced the note which Brainard had given him the night before and gave it to defendant to read. Defendant apologized, and the hunters were soon on their way.

Defendant was subsequently convicted of three counts of aggravated assault under section 94-5-202(1)(c), R.C.M.1947, which provides:

"A person commits the offense of aggravated assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon."

On appeal defendant raises five issues:

1. Is it error to give an instruction on self-defense which is not the same as the instruction settled upon in chambers and which does not state that the burden of proof does not shift to the defendant when he raises the issue of self-defense?

2. Is it error to give an instruction on the use of force in self-defense by an aggressor in statutory language without relating the instruction to the facts of the case?

3. Is it error to refuse to instruct the jury on the principle that a person may act in self-defense in response to Appearance of imminent danger, even if the person's belief that he is in danger is mistaken?

4. Is it error to refuse to instruct the jury on the lesser included offense of assault when the defendant is charged with aggravated assault?

5. Is a criminal verdict supported by substantial evidence when the defendant raises evidence tending to show justification by reason of self-defense?

Issue 1. In settling instructions the trial judge ruled that he would read the following instruction on self-defense:

"You are instructed that the defendant in this cause has raised the defense of justifiable use of force or self-defense as an affirmative defense to show that he is not guilty of the crimes charged against him by the State of Montana. The defendant must prove his self-defense in order to raise a reasonable doubt as to his guilt."

Defendant objected, contending the instruction would confuse the jury as to the continuing burden of proof on the State. When the instructions were later read to the jury, this instruction, Instruction No. 12, took a different form:

"You are instructed a defense of justifiable use of force is an affirmative defense."

Both defendant and the State agree that the test to be applied when error is predicated on a jury instruction is whether, when the instruction is considered as a part of the whole body of instructions, the instruction is prejudicial to the appealing party. State v. Caryl (1975), 168 Mont. 414, 430, 543 P.2d 389, 398, states the applicable rule:

"In determining the effect of given instructions, all instructions must be considered as a whole and if they fairly tender the case to the jury, the fact that one or more instructions, standing alone, is not as full or as accurate as it might have been is not reversible error."

See also State v. Brooks (1967), 150 Mont. 399, 410, 436 P.2d 91, 96-97; State v. Watson (1965), 144 Mont. 576, 583, 398 P.2d 949, 953.

The above instruction, which defendant claims is prejudicial because it appears to shift the burden of proof to defendant, states only that the defense of justifiable use of force is an affirmative defense. Defendant further asserts that the other 16 instructions fail to make up the deficiency. State v. Grady (1975), 166 Mont. 168, 175, 531 P.2d 681, 684, states the principle that the defendant has the burden only of producing sufficient evidence of self-defense to raise a reasonable doubt of his guilt. In this case, however, it appears that the instructions, when considered as a whole, show that the burden of proving the defendant's guilt remained with the State. First, Instruction No. 2 contains the following sentence:

"The burden of proof rests upon the State Throughout the trial to establish the guilt of the accused beyond a reasonable doubt and a conviction is not warranted unless this burden is sustained." (Emphasis added.)

Second, Instruction No. 4 informs the jury that defendant is presumed to be innocent and that the presumption "remains with him throughout every stage of the trial and during (the jury's) deliberations on the verdict . . ."

Third, Instruction No. 5 directs the jury that to convict defendant, each element of the crime "must be proved by the state by competent evidence, beyond a reasonable doubt" and that if the jury, at the close of the evidence, still entertained "any reasonable doubt upon any fact or element" which must be proved by the State, its duty was to "give the defendant the benefit of such doubt and acquit."

Thus, the jury was...