                                                                                         November 8 2012


                                          DA 11-0499

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 252



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JAY J. MYRAN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighteenth Judicial District,
                        In and For the County of Gallatin, Cause No. DC 09-158A
                        Honorable Holly Brown, Presiding Judge


COUNSEL OF RECORD:

                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


                                                    Submitted on Briefs: September 26, 2012

                                                               Decided: November 8, 2012




Filed:

                        __________________________________________
                                          Clerk
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 co-

worker 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,


                                             2
“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,


                                               3
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
                                             4
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

Egelhoff [State v. Egelhoff, 272 Mont. 114, 900 P.2d 260 (1995)] should stand on

                                              5
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

¶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




                                                6
¶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?

¶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.

      ...

      COUNSEL: Your Honor, based on those rulings, I would submit to the Court
      that we’d object to Instruction No. 7 based on impermissible burden shifting
      and also due process consistent with Justice Nelson’s dissent and Justice
      Cotter’s dissent concluding that Egelhoff should stand on independent state
      grounds.


                                            7
The State argues, based on this exchange, that Jay has improperly changed the basis of his

objection from burden shifting to preventing him from presenting his defense. However,

from the record, it appears that Jay’s objection was based on both “impermissible burden

shifting and also due process consistent with Justice Nelson’s dissent and Justice Cotter’s

dissent” in McCaslin. This objection was timely made during the settling of instructions and

stated the matter objected to and grounds for objection. Section 46-16-410(3), MCA. The

general rule that we will not address either an issue raised for the first time on appeal or a

changed legal theory is based on considerations of judicial economy and the “unseemly”

nature of “telling a lower court it was wrong when it was never presented with an

opportunity to be right.” State v. West, 2008 MT 338, ¶ 16, 346 Mont. 244, 194 P.3d 683.

Given that the court solicited the objection and suggested the general grounds, we cannot

conclude that his overall theory was not presented to the trial court and therefore it is

properly before us.

¶20    B. Does § 45-2-203, MCA, violate a defendant’s right to due process under the

Montana Constitution?

¶21    Jay argues that the court erred by instructing the jury it was prohibited from

considering Jay’s intoxication when rendering its verdict. Jay argues that this is especially

the case given that his theory of defense was that his actions amounted to negligent

homicide, rather than deliberate, in part because of his intoxication. Instruction 19

effectively mirrors the language of § 45-2-203, MCA. As a result, he claims that § 45-2-203,

MCA, violates the Montana Constitution insofar as it does not allow the jury to consider a

defendant’s theory of defense involving an intoxicated condition.
                                            8
¶22    In response, the State contends that not only was Jay able to fully present his defense

concerning intoxication and negligent homicide to the jury, but that Jay has also failed to

establish that the Montana Constitution provides a greater right to present a defense than the

United States Constitution. We agree with the State.

¶23    Jay essentially contends that the Montana Constitution affords him a greater right to

present a defense than the U.S. Constitution. In doing so, he acknowledges that the United

States Supreme Court has found that § 45-2-203, MCA, does not violate the Due Process

Clause of the U.S. Constitution. See Montana v. Egelhoff, 518 U.S. 37, 56, 116 S. Ct. 2013,

2024 (1996). We have also considered, and rejected, a similar challenge to § 45-2-203,

MCA, under Montana’s Due Process Clause, Article II, Section 17 of the Montana

Constitution. See State v. McCaslin, 2004 MT 212, 322 Mont. 350, 96 P.3d 722, rev’d in

part on other grounds, State v. Herman, 2008 MT 187, 343 Mont. 494, 188 P.3d 978. In

McCaslin, the defendant asserted a justifiable use of force defense to charges stemming from

a drunken brawl. The trial court instructed on voluntary intoxication pursuant to § 45-2-203,

MCA, and the jury convicted McCaslin on three of the charges. On appeal, he argued that

the intoxication instruction improperly shifted the burden of proof by creating a conclusive

presumption of criminal responsibility and that it also violated his right to due process under

Article II, Section 17 of the Montana Constitution. McCaslin, ¶¶ 20-21. We dismissed his

first contention by noting that the instruction “is not a mandate to the jury to convict . . .

[r]ather, it informs the jury that voluntary intoxication does not exculpate otherwise criminal

conduct in accordance with Egelhoff . . . .” McCaslin, ¶ 25; see also Egelhoff, 518 U.S. at

56, 116 S. Ct. at 2024. Regarding McCaslin’s second contention, we determined that as the
                                           9
United States Supreme Court had found that § 45-2-203, MCA, did not violate the Federal

Due Process Clause, there was “no reason to reach a different result” when considering

Article II, Section 17’s identical language. McCaslin, ¶ 24.

¶24     Jay attempts to work around our holding in McCaslin by alleging that § 45-2-203,

MCA, violates what he calls the Montana Constitution’s “enhanced” due process protections

found outside Article II, Section 17. However, Jay does not point to a specific section to

support this contention. Instead, he argues that these enhanced procedural protections

“permeate the entirety of the Montana Constitution” and emanate from the “penumbra” of

Article II.

¶25     As Jay claims that Montana’s conception of the right is broader than its federal

counterpart, he “must establish sound and articulable reasons that the Montana Constitution

affords greater protection for a particular right.” State v. Covington, 2012 MT 31, ¶ 20, 364

Mont. 118, 272 P.3d 43. Jay has three avenues through which he can establish the Montana

Constitution provides the enhanced due process right to present a defense which he claims.

Jay can identify unique language within the Montana Constitution, he can reference

Constitutional Convention transcripts and committee reports, or he may establish that the

alleged right must be read in conjunction with rights that are uniquely Montanan. Covington,

¶ 21. Because Article II, Section 17 of the Montana Constitution mirrors the Due Process

Clause of the Federal Constitution, the first avenue is unavailable.1 Jay has cited nothing in


1
  Article II, Section 17 of the Montana Constitution reads: “Due process of law. No person shall be deprived
of life, liberty, or property without due process of law.” This section is derived from, and identical to, Article
II, § 27 of Montana’s 1889 Constitution and the due process clauses of the Fifth and Fourteenth Amendments
to the U.S. Constitution.
                                                       10
the background materials to Montana’s Constitutional Convention that shows the delegates

contemplated a greater right to present a defense. Covington, ¶ 25. Instead, by referencing

our Constitution’s alleged emanations and penumbras, Jay appears to have taken the third

route, and must demonstrate that a broader right to present a defense must be read in

conjunction with other uniquely Montanan rights.

¶26    Jay attempts to do this by pointing to Article II’s enumeration of various due process

rights and listing the occasions on which we have held that the Montana Constitution

provides greater due process protections. However, just because Article II lists due process

rights not found in the Federal Constitution does not, by itself, establish that our Constitution

countenances a broader right to present a defense. When we have previously found that the

Montana Constitution affords greater rights, it has been based on demonstrably unique

language, see State v. Dunn, 2007 MT 296, ¶ 11, 340 Mont. 31, 172 P.3d 110, or a finding

that the combined operation of unique constitutional provisions, when coupled with a strong

tradition of greater respect for that right, commanded a recognition of a greater state-based

right. See State v. Bullock, 272 Mont. 361, 383-84, 901 P.2d 61 (1995). Here, in support of

his argument, Jay points to Article II, Sections 3, 4, 8, 9, 15, 16, 17, 24, 26, and 31 of the

Montana Constitution as examples of Montana’s greater enumeration of due process-related

rights. From this list, Jay asserts that a right to a complete defense necessarily follows.

However, at no point does Jay establish why his litany of Montana constitutional protections

necessarily supports the recognition of a right to present a complete defense broader than that

afforded by the U.S. Constitution. Nor does he establish a strong Montana tradition of

recognizing a greater right to present a defense. Indeed, we have previously recognized that
                                              11
the right to present a defense is not absolute under the Montana Constitution, see State v.

Ahto, 1998 MT 200, ¶ 16, 290 Mont. 338, 965 P.2d 240; State v. Johnson, 1998 MT 107,

¶ 23, 288 Mont. 513, 958 P.2d 1182, and this proposition has been firmly rejected by the

U.S. Supreme Court. See U.S. v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261 (1998);

Michigan v. Lucas, 500 U.S. 145, 151, 111 S. Ct. 1743 (1991); Taylor v. Illinois, 484 U.S.

400, 410-11, 108 S. Ct. 646 (1988). As Jay has failed to establish that the Montana

Constitution provides a greater right to present a defense than its federal counterpart, we find

no reason to depart from these prior holdings.

¶27    We must note, however, that Jay fully presented his defense of negligent homicide,

including evidence of his intoxication, at trial. The court did not prevent Jay from presenting

testimony concerning his intoxication. Further, as Jay admits on appeal, “the State did not

object to [Jay’s] testimony that the negligence of his actions were [sic] rooted in the ‘alcohol

factor.’” The defense counsel’s opening statement focused on Jay’s heavy drinking and

drunken state on May 12, 2009. Their closing argument alleged that Jay’s conduct amounted

to negligent homicide primarily due to his intoxication and Gayle’s own allegedly negligent

actions. Testimony was presented that Jay and Gayle consumed roughly 24 beers every day.

L.M. testified that Jay began drinking the morning of May 12, 2009, and was drunk by the

time he and Gayle began to argue that afternoon. Jay testified that he was an alcoholic, and

stated that he had “at least an 18-pack” of beer the day of Gayle’s death. He described his

conduct as “pretty reckless,” and testified that “no reasonable person” would, while

intoxicated, stand with a loaded gun and have an argument in a small trailer living room. He

specifically alleged that his recklessness was due to the “alcohol factor.” Following
                                           12
considerable argument and testimony on Jay’s intoxication, the court instructed the jury on

negligent homicide. Jay cannot be heard to complain that he was not allowed to present

evidence of his intoxicated condition at trial.

¶28    In light of the above, we find that Instruction 19 did not prejudice Jay’s right to due

process. The intoxication instruction “merely advised the jury that intoxication does not

excuse otherwise criminal conduct.” Kills On Top v. State, 273 Mont. 32, 50, 901 P.2d 1368

(1995) (emphasis added). The Instruction did not mandate that the jury must find Jay guilty

if they found he was intoxicated. See McCaslin, ¶ 25; Kills On Top, 273 Mont. at 50, 901

P.2d at 1380. Jay did not argue that he was incapable of forming the requisite mens rea for

deliberate homicide because of his intoxication, or that his intoxicated state excused his

actions. Instead, Jay essentially argued the victim negligently jerked the gun as he

negligently handled it, causing it to go off. Instruction 19 did not prevent the jury from

considering Jay’s intoxication in relation to this theory, and Jay has failed to show how the

Instruction prejudiced his alleged right to present a defense. Even if the jury found that Jay

was inebriated, the State still had the burden to prove each element of deliberate homicide

beyond a reasonable doubt to establish criminal responsibility. McCaslin, ¶ 25. Thus, when

we read the instructions as a whole, we conclude that Instruction 19 did not violate Jay’s

right to due process under Article II of the Montana Constitution.

                                      CONCLUSION

¶29    Because we conclude that the instructions given by the court fully and fairly

instructed the jury on the applicable law and did not prejudice Jay’s right to present a

defense, the District Court did not abuse its discretion by giving Instruction 19 to the jury.
                                              13
¶30    Affirmed.

                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ JIM RICE


/S/ BETH BAKER
/S/ BRIAN MORRIS




Justice Patricia O. Cotter concurs.

¶31    I continue to agree with Justice Nelson’s special concurrence in State v. Egelhoff, 272

Mont. 114, 900 P.2d 260 (1995), rev’d, Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013

(1996), to the effect that the language of § 45-2-203, MCA, which precludes the jury from

taking into consideration the intoxicated condition of the defendant “in determining the

existence of a mental state which is an element of the offense,” also “effectively and

impermissibly relieves or lessens the burden of the State to prove beyond a reasonable doubt

an essential element of the offense charged . . . .” See State v. McCaslin, 2004 MT 212, ¶ 51,

322 Mont. 350, 96 P.3d 722 (Nelson and Cotter, JJ., concurring and dissenting), overruled

on other grounds, State v. Herman, 2008 MT 187, ¶ 12, 343 Mont. 494, 188 P.3d 978; State

v. Smith, 2005 MT 325, ¶ 35, 329 Mont. 526, 127 P.3d 353 (Nelson and Cotter, JJ.,

concurring). Thus, it is my contention that the statute wrongly reduces the State’s burden of

proof, not that the statute violates the right of a defendant to present a complete defense.


                                             14
¶32    As the Court notes, Jay preserved his arguments regarding both impermissible burden

shifting and the right to present a defense. Opinion, ¶ 19. However, Jay focused his

considerable efforts in appellate briefing upon the argument that the statute denies him the

right to put on a defense. He did not provide independent state authority for the proposition

that the statute shifts the burden of proof of an essential element of the crime away from the

State, in violation of the Montana Constitution. As we noted in ¶ 35 of Smith, such authority

is required, in light of Montana v. Egelhoff.

¶33    I therefore concur.


                                                     /S/ PATRICIA COTTER




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