State v. St. Marks

• Decision Date: 30 June 2020
• Docket Number: DA 17-0612
• Parties: STATE of Montana, Plaintiff and Appellee, v. Nevada B. ST. MARKS, Defendant and Appellant.
• Court: Montana Supreme Court

400 Mont. 334

467 P.3d 550

2020 MT 170

STATE of Montana, Plaintiff and Appellee,

v.Nevada B. ST. MARKS, Defendant and Appellant.

DA 17-0612

Supreme Court of Montana.

Submitted on Briefs: April 8, 2020

Decided: June 30, 2020

For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Karen Alley, Hill County Attorney, Havre, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Nevada B. St. Marks appeals his conviction of attempted deliberate homicide by a jury in the Twelfth Judicial District Court, Hill County. We affirm, and restate the issues as follows:

1. Does the District Court's "specific purpose" jury instruction warrant review under either the doctrine of plain error or ineffective assistance of counsel?

2. Does the prosecutor's conduct warrant plain error review?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On September 18, 2016, St. Marks stabbed his friend, Cordell Wilson (Wilson), in the chest multiple times with a large kitchen knife. Wilson and St. Marks grew up together in Havre, and were childhood friends. A few days before the incident, Wilson contacted St. Marks to tell him he would be in town for the weekend, and St. Marks and Wilson agreed to meet so Wilson could work on St. Marks’ tattoos.

¶3 St. Marks spent the day of September 17 drinking and driving around with another friend, Dustin Welch (Welch). Toward evening, Welch invited other friends, including a fifteen-year-old girl, J.G., to join them at a local fishing hole to continue drinking. After meeting at the fishing hole, the group went to St. Marks’ trailer to continue their party. On more than one occasion during the party, St. Marks brought up gang affiliation and became very angry, arguing with others about whether they were "bloods" or "crips." During these conversations, St. Marks repeatedly brought out a large kitchen knife, and at one point told J.G. he didn't care what he did that night, because he was moving to Great Falls in the morning. After St. Marks displayed the knife the third time, J.G. became concerned and hid the knife under a stack of dishes in St. Marks’ sink.

¶4 J.G. testified that, shortly thereafter, she "blacked out" due to the amount of alcohol she had consumed. Welch left the party to meet up with Wilson, and the two decided to go back to the trailer. Upon their return, they walked in on what they believed was St. Marks engaging in intercourse with J.G. J.G. provided a similar account, stating that when she "came to," Wilson and Welch were coming in the door, and St. Marks was separating from her as if they had just had sex. Wilson and Welch immediately left the trailer to give St. Marks and J.G. some time, and when they returned again, St. Marks and J.G. were sitting on different sides of the room. J.G. became visibly upset, and Welch took her to a back room to help her calm down. He then went outside to smoke.

¶5 At this point, the accounts of what happened between Wilson and St. Marks diverged. Wilson testified he told St. Marks he did not believe it was right that St. Marks had sex with J.G. He reminded St. Marks that St. Marks had a girlfriend, a son, and a house. Wilson said St. Marks then went quiet, and that there was a lot of tension between the two, so Wilson decided to leave. Wilson testified that St. Marks asked him to have one last shot of whiskey before he left, which Wilson agreed to do. Wilson tried to shake hands with St. Marks to make amends, but St. Marks refused. The shots were poured, and when Wilson lifted his arm up to drink the shot, St. Marks stabbed him in the chest with the kitchen knife. Upon realizing he had been stabbed, Wilson head butted St. Marks and began calling Welch for help. St. Marks then stabbed Wilson in the chest two more times.

¶6 Welch testified that, while he was out smoking, he could see into the trailer through a window. He thought St. Marks and Wilson were goofing around and wrestling before he heard Wilson scream for help. Upon entering the trailer, Welch saw Wilson holding his chest and saying St. Marks had stabbed him. Welch told St. Marks to leave, ordered Wilson to lay down, and called 911. ¶7 J.G., who was still in the back room, testified that she heard yelling and believed there was fighting in the living room. When she came out, she saw Wilson on the porch, bleeding, and Welch calling 911. Welch yelled at her to leave, and she left the trailer.

¶8 St. Marks offered a completely different version of the incident. He said after J.G. and Welch left, he and Wilson got into an argument about roofing. Wilson told St. Marks "he didn't know shit" about roofing, and that St. Marks’ grandfather, who had taught St. Marks how to roof, also "did not know shit." St. Marks told Wilson to "watch his mouth," and that if Wilson "didn't stop slapping [his] gums, we will get down to business and squabble." St. Marks testified at that point a fight broke out between the two men, and Wilson, who was much larger than St. Marks, was winning. St. Marks said he told Wilson "I quit," and attempted to walk into the kitchen, at which time Wilson "smacked" St. Marks in the back of the head, causing St. Marks to "see stars." St. Marks testified:

I knew I would have to defend myself in a manner that I did not want to. As I was looking down at the sink, trying to gain my composure. I saw a knife blade. I saw it as a barrier between us .... [Wilson] continued to lunge at me. I, out of instinct, reached up and popped him. When he popped back, it did not even seem like it affected him.... He just kept coming. I thrust the knife a couple times.

St. Marks testified that the knife broke and he ran outside, told Welch what had happened, and then left.

¶9 EMTs arrived and Wilson was transported to the hospital. He had lost a significant amount of blood, his lung was collapsed, and his injuries required surgery. He was then transferred to the Intensive Care Unit, where he remained for several days before being released. After a few hours of looking for St. Marks, police found him walking down the side of a road, covered in blood, and with no injuries to his person. The State charged St. Marks with attempted deliberate homicide, or in the alternative, assault with a weapon.

¶10 At trial, Wilson, Welch, J.G., and St. Marks all testified to their version of the events that night. St. Marks maintained he stabbed Wilson in self-defense, and his counsel stated several times to the jury that the case was about self-defense. In addition to the testimony of Wilson, Welch, and J.G., the State called Detective Brian Cassidy, of the Havre Police Department, who had investigated the scene and interviewed St. Marks. During the initial interview, which was recorded and played for the jury, St. Marks told Detective Cassidy that he did not remember what happened, and Detective Cassidy testified St. Marks changed his story several times. Defense counsel later asked St. Marks about this interview:

Q. Why is it that on the interview with Detective Cassidy, you have no memory what is going on you say repeatedly but here today you tell the jury what happened?

A. Part was panic because of the actions I did. With the assault, I did not want [Wilson] in trouble. I was more afraid for him than myself. I wanted to take the blame so my friend could heal and not worry about being prosecuted by the law.

On cross examination of St. Marks, the State asked about this statement:

Q. So did I understand from your testimony that you said at the time you were talking to Detective Cassidy, you were attempting to take the blame to keep [Wilson] from getting into trouble; is that your testimony?

A. That's correct.

Q. Okay. So during your interview with Detective Cassidy, how many times do you think you lied?

A. I would say about a little over half of the interview.

The State then called Detective Cassidy to return to the stand, during which the following interaction took place:

Q. Did you consider the possibility during the interview with the defendant that he was lying to cover for [Wilson]?

A. No.

Q. Why not?

A. I believed he was lying to cover for himself.

Defense counsel did not object to this line of questioning.

¶11 In his closing statement, defense counsel maintained that St. Marks’ use of force was justifiable, and further, that there were problems with the State's version of what had occurred. The prosecutor emphasized that Wilson's version was more consistent with the other witness testimony, and that St. Marks could not have stabbed someone multiple times without the intent to kill. Additionally, the prosecutor stated, "[Welch] got up and told the truth. He did not cover for the defendant or bolster. He just told you what he saw." St. Marks’ counsel did not object to this comment.

¶12 After both parties rested, the District Court issued jury instructions, including Instruction #10 based upon § 45-2-201(2), MCA, regarding purposely or knowingly causing the result of death:

If purposely or knowingly causing death was not within the contemplation or purpose of the Defendant, either element can nevertheless be established if the result involves the same kind of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the Defendant's liability or the gravity of the offense.

St. Marks’ counsel did not object to the instruction.

¶13 During deliberation, the jury sent a question to the court that requested clarification on Instruction #10. The Court asked the parties if they wanted to clarify the instruction, to which St. Marks’ counsel replied "no, we can't." When the District Court asked St. Marks’ counsel for a suggested answer to the jury, he replied, "[t]he answer is we can't clarify that. They'll just have to – we can't clarify it for them."

¶14 The jury convicted St....