                            No.   91-023

          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
         Plaintiff and Respondent,


MICHAEL KNIGHT,
         Defendant and Appellant.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Robert W. Holmstrom, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Gary E. Wilcox, Attorney at Law, Billings, Montana.
          For Respondent:
               Marc Racicot, Attorney General, Helena, Montana;
               Deanne L. Sandholm, Assistant Attorney General,
               Helena, Montana; Dennis Paxinos, County Attorney,
               Billings, Montana.


                            Submitted on briefs:   October 24, 1991
Chief Justice J. A. Turnage delivered the Opinion of the Court.
    A jury in the District Court for the Thirteenth Judicial
District, Yellowstone County, found Michael Knight guilty of
deliberate homicide and attempted deliberate homicide.          Knight
appeals.   We affirm.
     The issue is whether the jury was properly instructed on the
Lesser included offense of mitigated deliberate homicide.
     This case arose from a drug deal gone sour.       In January 1990,
Knight and his longtime friend Donald Brey agreed to travel from
Billings, Montana, to California, with the purpose of buying
cocaine for resale in Montana.   Brey had the necessary "connec-
tions" in California. They purchased the cocaine and financed the
trip with $7,000 Knight had received from an insurance settlement.
Knight and Brey agreed that Brey would sell the approximately four
ounces of cocaine they purchased and that they would divide the
profits from this venture.
     Following the trip to California, Knight began having trouble
reaching Brey. On the occasions when he did reach Brey, Brey told
him that he could not yet pay him his share of the money because
the cocaine was not selling as quickly as expected.
     On February 11, 1990, Knight learned that Brey had moved from

Billings to Laurel, Montana, about fifteen miles away.       Knight was
upset that Brey had not told him he was moving.    A   mutual acquain-
tance directed Knight to the house Brey was renting in Laurel, but
Brey was not home.    At about 10:OO p.m., Knight returned alone to
Brey's house in Laurel.    Brey and his cousin Cody Puckett were in
the garage working on a car. Knight kicked open a side door to the
garage and confronted Brey about the money. When Brey put him off,
Knight drew a handgun.
     Knight's trial testimony about what happened next differed
from that of Puckett, who also testified at trial.             Knight
testified that Brey kicked his hand, causing the gun to go off in
Brey ' s face. Puckett testified that Knight fired the gun in Brey ' s
face.   Brey died immediately.    Knight further testified that he
believed Puckett had a gun.    He shot Puckett several times before
fleeing the garage.
     Knight surrendered to authorities the next day.          He was
charged with the deliberate homicide of Brey and the attempted
deliberate homicide of Puckett, who survived wounds to his leg,
chest, and shoulder.     The District Court sentenced Knight to 100
years in the Montana State Prison on each count plus ten additional
years on each count for the use of a dangerous weapon.
     The sole issue on appeal is whether the jury was properly
instructed on mitigated deliberate homicide as a lesser included
offense to deliberate homicide.    Settlement of instructions began
prior to Knight's presentation of evidence in his defense. At that
time, the State offered its proposed instruction 5A, which defined
both deliberate homicide and mitigated deliberate homicide.          The
following exchange occurred:
     THE COURT:   Any objections to 5A?


     [KNIGHT'S ATTORNEY]: If Your Honor please, if the Court
     concludes a mitigated deliberate is a lesser included, I
     at least do have an objection as to 5A the way it is now,
     if you'd like to hear that now.
     THE COURT:   What is that?
     [KNIGHT'S ATTORNEY] : Well, Your Honor, we would take the
     position that with respect to 45-5-103 ( 2 ) , that on -- and
     I realize that's the statute as it now exists in the
     state of Montana. We're taking the position that it is
     unconstitutional switching of the burden of proof to the
     defendant. That he's put in a position to --
     THE COURT:   Off the record.
The court refused both parties' instructions on lesser included
offenses, stating that it would "pass" on instructions on that
subject "until we find out what the evidence really i . '
                                                     s'
     After all of the evidence was presented, the court and counsel
met again to settle the remaining jury instructions.         The court
proposed its own instructions on deliberate homicide and mitigated
deliberate homicide.    When asked if there were any objections to
the instructions proposed by the court, Knight's attorney replied,
     As far as I'm concerned, I put any objections I have on
     the record yesterday, most notably the one -- I believe
     it was State's 15 or 15A -- concerning the burden of
     proof on mitigated deliberate, and I have no problems
     with the Court's Instructions as redone.      [Emphasis
     added. ]
The court's proposed instructions were given to the jury.
     The State emphasizes that Knight's counsel specifically stated
that he no longer had any objection to the instructions proposed by
the court.     Section 46-20-701(2), MCA, provides that a claim of
error which was not objected to at trial may be noticed on appeal
only if the claimed error affected jurisdictional or constitutional
rights, was prejudicial as to the defendant's guilt or punishment,
and meets one of three additional requirements.      Knight has not
alleged that his claim of error meets any of those three require-
ments
     Knight maintains that he clearly placed on the record his
objection to the statutory scheme on mitigated deliberate homicide,
and that this objection is retained.    We conclude that, after the
above exchanges during the settlement of jury instructions, any
surviving objection is limited to the constitutionality of 5 45-5-
103(2), MCA.    Therefore, the issue on appeal is limited.   We will
examine Knight's arguments that under Montana's statutes regarding
the degrees of homicide, it is impossible for a jury to be able to
consider mitigating evidence, and that the defense of mitigated
deliberate homicide as it is defined in Montana's statute unconsti-
tutionally shifts the burden of proof to the criminal defendant.
     Section 45-5-102, MCA, provides that
        (1) A person commits the offense of deliberate homicide
        if:
    (a) he purposely or knowingly causes the death of another
    human being[.]
Section 45-5-103, MCA, provides that
    (1) A person commits the offense of mitigated deliberate
    homicide when he purposely or knowingly causes the death
    of another human being but does so under the influence of
    extreme mental or emotional stress for which there is
    reasonable explanation or excuse. The reasonableness of
    such explanation or excuse shall be determined from the
    viewpoint of a reasonable person in the actor's situa-
    tion.
    (2) It is an affirmative defense that the defendant acted
    under the influence of extreme mental or emotional stress
    for which there was reasonable explanation or excuse, the
    reasonableness of which shall be determined from the
    viewpoint of a reasonable person in the actor's situa-
    tion. This defense constitutes a mitigating circumstance
    reducing deliberate homicide to mitigated deliberate
    homicide and must be proved by the defendant by a
    preponderance of the evidence.
     Knight points out that the customary method of instructing
juries regarding consideration of lesser included offenses is to
have the jury first consider the charged offense.   If they do not
find the defendant guilty beyond a reasonable doubt of the charged
offense, then and only then are they to proceed to consideration of
the lesser included offense.   In this case, the elements of the
charged offense, deliberate homicide, are 1) purposefully or
knowingly, and 2) causing the death of another human being.     The
lesser included offense of mitigated deliberate homicide also has
those two elements, plus a third element: 3) defendant acted under
the influence of extreme mental or emotional distress for which
there is reasonable explanation or excuse.
       Knight is correct that this situation requires carefully
drafted jury instructions. The jury must be informed that, if the
defendant meets the burden of proving by a preponderance of the
evidence that he acted under the influence of extreme mental or
emotional distress for which there is reasonable explanation or
excuse, they may find the defendant guilty of mitigated deliberate
homicide even though all the elements of deliberate homicide are
present.        We conclude, however, that nothing in the statutes
restricts a jury from reaching consideration of mitigated deliber-
ate homicide.
       Under Montana's statutes, mitigated deliberate homicide is a
lesser     included       offense of        deliberate homicide only          if the
defendant presents evidence that he acted under extreme mental or
emotional stress for which there is a reasonable explanation or
excuse.       State v. Olivieri           (1990),   244 Mont.   357,   360, 7 9 7 P.2d

937,   939.    A statute requiring a defendant to prove by a preponder-

ance of the evidence the presence of mitigating factors in support
of an affirmative defense does not unconstitutionally shift the
burden of proof to the defendant.                   Patterson v. New York     (1977),

432 U.S.      197,   97   S.Ct.   2319,   53   L.Ed.2d   281.   The State
       is not required to prove the nonexistence of every fact
       which it is willing to recognize as an exculpatory or
       mitigating circumstance affecting the degree of culpabil-
       ity or the severity of the punishment.         [Citations
       omitted. ] The due process clause does not put the states
       to a choice between abandoning affirmative defenses "or
       undertaking to disprove their existence in order to
     convict of a crime which otherwise is within its consti-
     tutional powers to sanction.  .. 11



State v. Sorenson (1980), 190 Mont. 155, 161-62, 619 P.2d 1185,
1189, citing Patterson.

     We hold that the above statutes do not prevent a jury's
consideration of mitigating evidence and that 5 45-5-103(2), MCA,
does not unconstitutionally shift the burden of proof to a criminal
defendant.
     Affirmed.

                                                   ,
                                                   f

                                el A -
                                    T    Chief Justice          R.-
We concur:




aLqd/            ices
                                        December 3, 1991

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


GARY E. WILCOX
Attorney at Law
316 N. 33rd Street
Billings, MT 59101


Hon. MARC RACICOT, Attorney General
          , Asst. Atty. Gen.
Justice Building
215 N. Sanders
Helena, MT 59620


Dennis Paxinos
Yellowstone County Attorney
P.O. Box 35025
Billings, MT 59107




ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
