                                             No.    83-492

               I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                                   1986




STATE O F MONTANA,

                   Plaintiff        and R e s p o n d e n t ,

       -VS-

DONALD RAY SAGE,

                   D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:       D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
                   I n a n d f o r t h e C o u n t y of G r a n i t e ,
                   T h e H o n o r a b l e R o b e r t B o y d . , Judge p r e s i d i n g .


COUNSEL O F RECORD:


       For A p p e l l a n t :

                   C.F.    Mackay,       P u b l i c Defender, Anaconda, Montana


       For R e s p o n d e n t :

                   Hon.  Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                   Joe R . R o b e r t s < M s t . A t t o r n e y G e n e r a l , H e l e n a
                   J. A l l e n ~ r a d s h a w , ,C o u n t y A t t o r n e y , P h i l i p s b u r g ,
                   Montana




                                                   S u b m i t t e d on B r i e f s :   Jan. 30, 1 9 8 6

                                                      Decid-ed: A p r i l 29,           1986




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                                                   Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

        Dona.ld Sage was charged with the offense of deliberate
homicide for the kil-ling of Clyde Gregory.             After trial
before a jury in the District Court of the Third Judicia.1
District,    Sage   was    convicted   of   mitigated     deliberate
homicide.   We affirm that conviction.
        Donald. Sage and his wife operated the Club House Cafe
under a lease held by F.obert DeR-osia. After investing time
and money into the business, Sage received notification on
October 6, 1981, that his lease was being cancelled.            Sage
was upset by the termination, and on the evening of October 7
he began having a few drinks with friends at various bars.
Around eleven o'clock that evening, a few friends of his came
over to his house.     Sage continued to drink and also took a
dose of L.S.D.      Sometime later they decided to go to the
Thirsty Dog Saloon in Phillipsburg, Montana.      Before leaving,
however, Sage took out his .22 caliber pistol.          He said that
he wanted to shoot out the windows at DeRosia's business to
get back at him for cancelling his lease.
        Sage entered the Thirsty Dog Saloon at approximately
12:30   a.m. on October 8, 1981 wearing his pistol in a holster
on his right hip.    His friends were seated at various places
in the Saloon but he went to the far end of the bar.          Clyde
Gregory, the bartender, was the only other person at that end
of the bar.      A short time later, a gunshot was heard. by
everyone in the Saloon, and        all eyes immediately turned
toward Sage.     Several witnesses testified that they saw Sage
hol-ding his pistol in both hands with arms extended pointed
directly at Gregory.      Then, Sage slowly withdrew the gun, put
it back        in    its holster, and walked            out the back door.
Gregory was killed instantly.
         Sage maintains that he was handing the gun to Gregory,
and as he was doing so it slipped out of his hands and
accidentally discharged.             The only other witness who tends to
corroborate this version of the shooting is Sage's wife,
although she did not see the actual firing of the shot.
      Appellant asserts tha.t there are four errors which
require reversal of the conviction:
         (1) The prosecution was allowed to introduce rebuttal
testimony       to    an    affirmative       defense    without      furnishing
appellant with the statutorily required notice.

         (2)    The prosecutor's pretrial conduct was improper and
prejudiced appellant's case.
         (3) Appellant did not have the necessary state of mind
to commit the offense.
         (4) The       verdict     was   not    supported      by    substantial
credible evidence.
We will discuss these issues in the order presented.


                                          I

      The      prosecution        offered     the testimony of witnesses
Martha     Dietz      and    Candace     Leistiko       for   the   purpose   of
rebutting appellant's contention that he did not have the
necessary       state       of   mind    required   for       the   offense   of
deliberate homicide.             However, the prosecution did not notify
appellant that it intended to use those witnesses' testimony
for such a rebuttal.             Appellant contends that this failure is
a violation of S 46-15-301 (3), MCA,                (1983).         [Although in
effect at the time of trial, this statute has recently been
repealed        and     replaced        by     S§ 46-15-322        - 46-15-323,           MCA.]

S e c t i o n 46-15-301,      MCA,     (1983) p r o v i d e d i n p a r t :

                  ( 2 ) F o r p u r p o s e o f n o t i c e o n l y and t o
                 prevent s u r p r i s e , t h e defendant s h a l l
                 f u r n i s h t o t h e p r o s e c u t i o n and f i l e w i t h
                 t h e c l e r k of t h e c o u r t , a t t h e time of
                 entering h i s plea of not g u i l t y o r
                 w i t h i n 1 0 days t h e r e a f t e r o r a t such
                 l a t e r t i m e a s t h e c o u r t may f o r good
                 cause permit:

                 (a) a            statement         of        intention       to
                 interpose t h e defense of j u s t i f i a b l e use
                 of         force        (formerly           self-defense) ,
                 e n t r a p m e n t , compulsion, o r a l i b i o r t h e
                 d e f e n s e t h a t t h e d e f e n d a n t d i d n o t ha.ve
                 a p a r t i c u l a r s t a t e o f mind t h a t i s an
                 essential             element        of       the     offense
                 c h a r g e d ; and

                  (b) i f          the       defendant         intends        to
                 i n t e r p o s e any o f t h e s e d e f e n s e s , h e
                 s h a l l a l s o furnish t o t h e prosecution
                 and f i l e w i t h t h e c l e r k o f t h e c o u r t t h e
                 names and a d d r e s s e s o f a l l w i t n e s s e s
                 o t h e r t h a n t h e d e f e n d a n t t o be c a l l e d by
                 t h e defense i n support thereof.                       Prior
                 t o t r i a l t h e d e f e n d a n t may, upon motion
                 and showing o f good c a u s e , add t o t h e
                 l i s t o f w i t n e s s e s t h e names o f any
                 additional witnesses.                    After the t r i a l
                 commences, no w i t n e s s e s may be c a l l e d by
                 the        defendant         in     support      of      these
                 d e f e n s e s u n l e s s t h e name o f t h e w i t n e s s
                 i s i n c l u d e d on t h e l i s t , e x c e p t upon
                 good c a u s e shown.            This subsection does
                 not apply t o r e b u t t a l witnesses.

                  ( 3 ) For t h e p u r p o s e o f n o t i c e o n l y and
                 t o prevent s u r p r i s e , t h e prosecution
                 s h a l l f u r n i s h t o t h e d e f e n d a n t and f i l e
                 w i t h t h e c l e r k o f t h e c o u r t no l a t e r
                 t h a n 5 days b e f o r e t r i a l o r a t such
                 l a t e r t i m e a s t h e c o u r t may f o r good.
                 cause permit a l i s t of witnesses t h e
                 prosecution intends t o c a l l a s r e b u t t a l
                 witnesses t o t h e defenses of j u s t i f i a b l e
                 u s e o f f o r c e , e n t r a p m e n t , compulsion,
                 a l i b i , o r t h e defense t h a t t h e defendant
                 d i d n o t have a p a r t i c u l a r s t a t e o f mind
                 t h a t i s an e s s e n t i a l e l e m e n t o f t h e
                 o f f e n s e charged.

         At    no t i m e b e f o r e t h e t r i a l began d i d a p p e l l a n t g i v e

any n o t i c e t o t h e p r o s e c u t i o n t h a t he i n t e n d e d t o i n t e r p o s e

t h e a f f i r m a t i v e d e f e n s e o f l a c k o f a p a r t i c u l a r s t a t e o f mind
to commit the offense charged.                  Furthermore, appellant did
not provide the prosecution with a list of the witnesses he
intended     to    call    in     support       of    this   defense.         The
prosecution's       burden      of     providing      statutory     notice     of
rebuttal witnesses does not arise until the defendant has
given notice that he intends to interpose an affirmative
defense.      Unless      the prosecution is made               aware of what
defense the defendant intends to use, it cannot possibly
furnish a list of witnesses intended to rebut that defense.
The   requirements        of     the     statute       are   reciprocal--once
defendant gives full notice of intent to claim a particular
affirmative       defense,      the    prosecution       must     furnish     the
defendant with a list of witnesses it intends to call in
rebuttal to that defense.
      State v. Madera (Mont. 1983), 670 P.2d 552, 40 St.Rep.
1558, supports this conclusion.                   There, the defendant did
inform the State that he intended to use an alibi as a
defense, but he did not inform the State of the nature or
circumstances of       the      alibi.       At      trial, the prosecution
presented witnesses to rebut the defense of alibi without
furnishing their names to the defendant in advance.                          The
defendant     contended         that     this     was    improper     rebuttal
testimony.        The Court held that because defendant did not
provide the State with the substance of the alibi testimony,
the State was not required to give notice of its rebuttal
witnesses before it knew what defendant's alibi witnesses
were going to testify to.
      At    least     in Madera        the   State knew that defendant
intended to claim the defense of alibi.                  Here the State had
no notice that appellant intended to claim any affirmative
defense.      Under    these      circumstances the          State may       call
witnesses to rebut the affirmative defense offered at trial
without furnishing defendant with a list of those rebuttal
witnesses.        It    would   be    illogical      to   hold    that     the
prosecution should have furnished appellant with a list of
witnesses intended to rebut the affirmative defense offered
when the prosecution did not even know about this defense
until trial began.
        A further reason for finding no error on this claim is
that appellant was not surprised by the witnesses offered to
rebut    the    defense     asserted.         The    stated     purpose    of
§   46-15-301(3), MCA, (1983) is for notice only and to prevent
surprise.      The witnesses objected to by appellant were listed
by the prosecution in either the information or the notice of
additional State witnesses, which appellant ha.d access to
some    three    months    before    trial     began.      He    had     ample
opportunity      to    interview    these    witnesses    and    learn    the
substance of what they knew.              We find that appellant had
sufficient notice of the witnesses offered in rebuttal and
had no reason to be surprised by their testimony.                The use of
these witnesses' testimony was not improper.


                                     I1

        It appears that sometime before the trial began, the
prosecutor met with his witnesses at the Thirsty Dog Saloon
for the purpose of going over what they saw on the night of
the shooting.         Appellant was not notified of and did not
appear    at    this meeting.        He     contends    that    this was    a
violation of his right to due process of law; however, he
does    not    cite any Montana       nor any       federal authority to
support this proposition.
       One of the very few United States Supreme Court cases
to consider this issue, albeit on a related topic, is Snyder
v. Massachusetts (1934), 291 U.S. 97, 54 S.Ct. 330, 78 L.E~.
674.   In tha.t case a view of the scene of the crime was had
by the jury during trial, but the defendant was not allowed
to be present although his attorney did attend the view.
Defendant claimed that this denial was a violation of due
process of law.   The Court held:
           Nowhere in the decisions of this court
           is there a dictum, a.nd still less a
           ruling, that the Fourteenth Amendment
           assures the privilege of presence when
           presence would be useless, or the
           benefit    but     a     shadow...    The
           underlying principle gains point and
           precision    from     the     distinction
           everywhere drawn between proceedings at
           the trial and those before and after
           . ..  So far as the Fourteenth Amendment
           is   concerned,   the   presence   of   a
           defendant is a condition of due process
           to the extent that a fair and just
           hearing would be      thwarted by     his
           absence, and to that extent only.
Sn der, 291 U.S. at 106-108.
2 -                            The Court found that there was

no due process violation even though it was the jury that
attended the view.
       Thus, in order to find that appellant was deprived of
due process of law, it must be d-etermined whether appellant
was denied a full and fair hearing by the prosecutor meeting
with the witnesses at the scene of the shooting.
       First, we note that after the meeting, appellant had
Eull opportunity to interview these witnesses and could have
conducted a view of his own if he so desired.     Moreover, any
inconsistencies in   the witnesses'   testimony    or   collusion
among the witnesses could have been brought out at trial.
Furthermore, there is no Montana or federal constitutional
provision which grants to a defendant the right to attend a
pre-trial        conference     of        the    prosecution     and     State's
witnesses.
         Therefore, we hold that appellant was not denied a full
and fair hearing by the pre-tria.1. meeting of witnesses and
the prosecutor.        There is no evidence of any collusion or
improper conduct at this meeting.                 The presence of appellant
at this meeting would have had no reasonably substantial
relation to his opportunity to defend against the charge
asserted.        Any prejudice alleged to have resulted is pure
speculation.       We cannot find a constitutional violation on a
basis so feeble.




         Appellant    contends       next       that he   did   not have     the
necessary state of mind required to commit the offense.                      He
bases     this     contention        on     two     grounds:    (1)    the   gun
discharged by accident, and ( 2 )                he was so intoxicated that
he was not aware of his conduct and did not know what he was
doing.
         In   order   to   be   convicted         of   mitigated      deliberate
homicide the State must prove that a person has "purposely or
knowingly" caused the death of another.                    Section 45-5-102,
MCA,      S 45-5-103,      MCA.             Knowingly      is    defined      in
§   45-2-101 (33), MCA as:
              (33) Knowingly-- a person acts knowingly
              with respect to conduct or to a
              circumstance described by a statute
              defining an offense when he is aware of
              his conduct or that the circumstance
              exists.   A person acts knowingly with
              respect to the result of conduct
              described by a statute defining an
              offense when he is aware that it is
              highly probable that such result wi1.l.be
              caused by his conduct             ...
Thus, it was sufficient for the conviction if the State
proved that appellant knowingly caused the death of Gregory.
The State was not required to show that appellant acted
purposely.
        As to appellant's contention that the gun went off by
accident and he was not aware the decedent would be killed by
such    accident,      the   evidence   was    overwhelming      that   the
shooting was not an accident.           All of the witnesses, except
appellant and his wife, testified that appellant had the gun
in     both   hands,    arms   extended,      pointed   toward     Gregory
immediately     after    the   shot was       fired.    Only     appellant
testified that he dropped the gun on the bar which caused it
to discharge.       Thus, this contention is wholly without merit.
        The assertion that appellant was too intoxicated to
entertain the necessary criminal state of mind raises a more
serious issue.      The relevant statue is 5 45-2-203, MCA, which
provides :
              A Person who is in an intoxicated or
                L

              drugged    condition     is    criminally
              responsible for conduct unless such
              condition is involuntarily produced and
              deprives   him   of   his   capacity to
              appreciate   the   criminality   of his
              conduct or to conform his conduct to the
              requirements of law. An intoxicated or
              drugged condition may be taken into
              consideration    in    determining    the
              existence of a mental state which is an
              element of the offense.         (Emphasis
              added. )
There is no question that a-ppellant's intoxicated condition
was voluntarily produced.           However, his intoxication may
still be taken into consideration in determining whether he
was aware of the high probability that Clyde Gregory would
die as a result of his pulling the trigger of a gun pointed
at Gregory's chest.
         It is well settled that a jury may infer the requisite
mental state from what a "defendant does and says and from
all the facts and circumstances involved."                 State v. Pierce
(1982), 199 Mont. 57, 63, 647 P.2d 847, 851; State v. Welling
(19821, 199       Mont.   135,     647   P.2d   852;   §   45-2-103, MCA.
Appellant contends that he was not aware of what he was doing
because of his intoxicated condition.           The evidence points to
the contrary.
         Several witnesses testified that immedia.tely after the
shot was fired, they turned to see appellant holding the
pistol with his arms extended pointed directly at Gregory.
He then slowly put the gun back into its holster and walked
out the back door.         One witness even testified that he saw
appellant blow smoke out of the end of the barrel before
putting the gun back           into its holster.           Soon after the
shooting, appellant told Sheriff Cragun:               "I did it.     Just
lock me up for life."          When asked by a friend of his why he
shot     Clyde,    appellant      replied:      "Why   not,    I've     lost
everything else. I
                 '
       We find that there was substantial evidence from which

the jury could concl.ude that appellant knowingly caused the
death of Clyde Gregory.            The jury's verdict declared that
appellant was aware of the high probability that the decedent
would be killed as a result of appellant pointing a pistol
toward     him    and   pulling    the   trigger.      Where    there    is
sufficient credible evidence to support the jury's findings,
we will not make an independent determination of the effect
of voluntary intoxication on a defendant's state of mind to
commit the offense.        State v. Hardy (1980), 185 Mont. 130,
604 P.2d 792.      Furthermore, it appears that the jury did take
appellant's intoxication into consideration since it found
him guilty of mitigated deliberate homicide rather than the
greater offense of deliberate homicide.


                                     IV
       Finally, appellant contends that there was insufficient
evidence to support the conviction.              He bases this contention
largely on the fact that no one saw him pul.1 the trigger and
the State did not prove any motive for the killing.                  If these
two   circumstances were          necessary      in order    to    sustain a
conviction, the burden of proof on the State would be almost
insurmountable, and many obvious criminals would go free.
The sole requirement necessary to support a conviction of
deliberate homicide is that the State prove that a d-efendant
purposely or knowingly caused the death of another.
      The    standard        of   review      for    questions     involving
sufficiency of the evidence to support a conviction is: (1)
questions of fact must be determined solely by the jury, and
(2) once     a    certain    legal minimum          of   evidence has been
presented,       this     Court   will     not      make   an     independent
determination of guilt and substitute its judgment for that
of the jury.      State v. Lemmon (Mont. 1984), 692 P.2d 455, 41
St.Rep. 2359; State v. Martinez (Mont. 1980), 613 P.2d 974,
37 St.Rep. 982.         We find that the evidence presented at trial
went far beyond the legal minimum required, and appellant's
contention is without merit.
      Affirmed.
We c o n c u r :
