                                          No. 04-298

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 120


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

GARY MATTHEW MONTGOMERY,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eleventh Judicial District,
                     In and for the County of Flathead, Cause No. DC 2002-298(A)
                     The Honorable Ted O. Lympus, Judge presiding.



COUNSEL OF RECORD:

              For Appellant:

                     Gary G. Doran, Attorney at Law, Kalispell, Montana

              For Respondent:

                     Honorable Mike McGrath, Montana Attorney General, Jim Wheelis,
                     Assistant Attorney General, Helena, Montana; Ed Corrigan, Flathead County
                     Attorney, Daniel Guzynski, Deputy County Attorney, Kalispell, Montana



                                                       Submitted on Briefs: December 22, 2004

                                                                  Decided: May 11, 2005


Filed:



                     __________________________________________
                                       Clerk

Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1     Gary Matthew Montgomery (Montgomery) was convicted of negligent homicide. He

challenges the Eleventh Judicial District Court’s Order granting the State’s Motion in Limine,

and excluding from the trial evidence of the victim’s alleged prior violent acts and reputation

for violence. We affirm.

                                           ISSUE

¶2     Did the District Court abuse its discretion in granting the State’s Motion in Limine?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     At approximately 3:00 a.m. on May 19, 2001, Montgomery shot and killed Daniel

Mitch Nygren (Nygren). The incident followed an evening of drinking among several

friends and co-workers.      The group ultimately gathered at Montgomery’s house at

approximately 2:00 a.m., where they played ping-pong and partied in his detached garage

while his wife and small children slept in the nearby house. A fight ensued between

Montgomery and Nygren after Montgomery accused Nygren of attempted theft. Nygren

became very angry over Montgomery’s accusation and attacked him. Montgomery, cornered

in his garage, grabbed a hoe and first struck Nygren with the handle. Nygren became angrier

and continued to try to attack Montgomery. Montgomery then struck Nygren in the head

with the blade end of the hoe, causing a bleeding injury. While two of the other guests

temporarily restrained Nygren, Montgomery ran into his home, deadbolted the door behind

him and started loading his rifle. His wife heard him and asked what was wrong. After

being told by Montgomery about his altercation with Nygren, she yelled from the upstairs


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balcony to the people remaining in the garage that they should leave immediately or she

would call the police. The guests responded that they were leaving.

¶4     After ten or fifteen minutes, Montgomery, still shaken and scared by the incident,

crossed his backyard, carrying his rifle, to turn off the garage lights and close the garage.

He heard a person running down the alley beside his garage, and heard the intruder kick in

his back door and enter his home. Montgomery thought he heard his wife yell, “Matt, get

in the house.” As Montgomery ran to the back door of his home, he saw a large dark

shadow moving through the downstairs of his house. When he opened the back door, the

intruder charged Montgomery and Montgomery shot him at close range. The intruder, who

died as a result of the shooting, was Nygren.

¶5     Montgomery repeatedly insisted before trial that he shot the intruder before he knew

it was Nygren. He also told authorities that he had not presumed it was Nygren who had

entered his house. At trial, however, he changed his story and testified that he recognized

Nygren the instant before shooting him.

¶6     Montgomery was charged with negligent homicide. He provided notice to the court

that he intended to rely on the defense of justifiable use of force. Having been present while

Montgomery interviewed several witnesses, the State anticipated that Montgomery would

seek to introduce testimony at trial regarding specific alleged acts of violence and criminal

conduct previously committed by Nygren as well as Nygren’s reputation for violence. As

a result, the State filed a Motion in Limine seeking an order prohibiting Montgomery and his

counsel from making reference to Nygren’s criminal history, reputation for violence or

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previous violent acts. One week before trial, the District Court granted the Motion on the

grounds that Montgomery did not know, at the time he fired his weapon, that Nygren was

the intruder. Montgomery was convicted of negligent homicide. This appeal follows.

                                STANDARD OF REVIEW

¶7     A district court’s ruling on a motion in limine is an evidentiary ruling and the court

has broad discretion in determining whether evidence is relevant and admissible. We will

not overturn a district court’s determination absent an abuse of that discretion. State v. Snell,

2004 MT 334, ¶ 17, 324 Mont. 173, ¶ 17, 103 P.3d 503, ¶ 17 (citation omitted).

                                        DISCUSSION

¶8     Montgomery argues that the District Court erred in precluding him from introducing

evidence of his knowledge of Nygren’s alleged past violent behavior. He maintains that the

events of the evening and his knowledge of Nygren’s violent history led to his reasonable

fear and apprehension and his decision to arm himself. He therefore argues that his actions

leading to Nygren’s death, including carrying his shotgun, were not negligent and were taken

out of fear and the desire to protect himself and his family from the danger of serious bodily

harm or death. Montgomery further asserts that evidence of Nygren’s violent character is

admissible under the second prong of Rule 405(b), M.R.Evid., because it “relates to the

reasonableness of force used by [Montgomery] in self defense.” Montgomery complains

that the District Court’s failure to allow him to explain to the jury what he knew of Nygren’s

previous acts of violence prevented Montgomery from receiving a fair trial, and allowed the




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State to persuade the jury that Montgomery’s actions that night were negligent rather than

reasonable.

¶9     The State asserts that because Montgomery repeatedly insisted before trial that at the

time he shot Nygren, he did not know, nor did he presume, that the intruder was Nygren,

Montgomery’s knowledge of Nygren’s violent tendencies could not have been a factor in the

shooting. In other words, Montgomery did not see Nygren charging him and conclude, based

on his knowledge of Nygren’s violent nature or past, that he had to shoot Nygren to protect

himself or his family from “imminent death or serious bodily harm.” See § 45-3-102, MCA.

Without knowledge of the victim’s identity, the State maintains, evidence of the victim’s

character, whether violent or not, is irrelevant and therefore inadmissible.

¶10    Furthermore, the State notes, a violent character trait is not an “essential element” of

the defense of justifiable use of force under the first prong of Rule 405(b), M.R.Evid.; rather,

under State v. Sattler, 1998 MT 57, ¶¶ 43-46, 288 Mont. 79, ¶¶ 43-46, 956 P.2d 54, ¶¶ 43-

46, evidence of a victim’s violent character is admissible to demonstrate the reasonableness

of force in a justifiable use of force defense. The State maintains, however, that such

evidence was unnecessary in the case before us, both for the foregoing reasons, and because

it was the events of the evening and Nygren’s behavior immediately before his death that led

Montgomery to the ultimate use of deadly force. The State reports that at no time during

Montgomery’s offer of proof did he state that he was frightened of Nygren for any reason

other than Nygren’s behavior on this specific evening, or that he armed himself because he

knew of Nygren’s purported violent past. As a result, evidence of Nygren’s alleged past

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violent acts was irrelevant and cumulative, and therefore exclusion of that evidence was

correct.

¶11    The District Court, in its Order granting the State’s Motion in Limine just days before

Montgomery’s trial, concluded that:

       any knowledge of Nygren’s propensity for violence is relevant to
       [Montgomery’s] claim of justifiable use of force only if [Montgomery] knew
       it was Nygren who was in his house and at whom [Montgomery] was
       shooting. If, as [Montgomery] asserts, he did not know who was rushing out
       from his house, then it is immaterial whether the intruder had a history of
       violence. Only if [Montgomery] knew it was Nygren at whom he was
       shooting, and he feared Nygren based on his understanding of Nygren’s
       history of violence, would evidence of Nygren’s violence be relevant. Thus,
       where the evidence is irrelevant based on [Montgomery’s] theory of defense,
       such evidence must be barred.

¶12    On the first morning of Montgomery’s trial, Montgomery learned that the District

Court had granted the State’s Motion in Limine. Montgomery sought to persuade the court

to change its ruling, arguing that despite his previous statements, he did in actuality recognize

Nygren immediately before shooting him. The District Court declined to reconsider the issue

at that time, but indicated that Montgomery would have another opportunity to request

reconsideration. Subsequently, on the morning of the second day of trial and at the

conclusion of Montgomery’s testimony, Montgomery again requested that the District Court

set aside its Order granting the State’s Motion in Limine, and allow him to introduce

testimony of Nygren’s alleged past crimes and violent nature.

¶13     The State countered that Montgomery was changing his position simply to conform

with the law that would allow negative evidence about Nygren to be introduced. The State


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reminded the court that in every interview conducted near the time of the incident, including

taped interviews, Montgomery stated that he did not know it was Nygren. Without such

knowledge, the State asserted, any evidence of the victim’s character or past crimes is

inadmissible. The State also noted that not only had Nygren never been convicted of the

crimes Montgomery alleged Nygren committed, he had never been charged with them. The

State maintained, therefore, that even if Montgomery recognized Nygren just before shooting

him, testimony of alleged, uncharged crimes or conduct would be overwhelmingly

prejudicial, would have little probative value, and should be excluded.

¶14    After considering both parties’ arguments, the District Court stated:

       In the testimony of [Montgomery] most proximate to the event he clearly
       stated he did not know who the person was that charged him out the door into
       whom he discharged the shotgun. . . . [F]or the reasons given in the order
       upon its entry, the [c]ourt reaffirms its ruling, and, accordingly,
       [Montgomery’s] motion is denied.

¶15    Rules 404 and 405, M.R.Evid., address the admissibility of “character” evidence.

Rule 404(a)(2), M.R.Evid., provides:

       (a) Character evidence generally. Evidence of a person’s character or a trait
       of character is not admissible for the purpose of proving action in conformity
       therewith on a particular occasion, except:

       ...

       (2) Character of victim. Evidence of a pertinent trait of character of the victim
       of the crime offered by an accused, . . . or evidence of a character trait of
       peacefulness of the victim offered by the prosecution in a homicide case or in
       an assault case where the victim is incapable of testifying to rebut evidence
       that the victim was the first aggressor.



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¶16    Rule 405(a) and (b), M.R. Evid., prescribe the methods by which a victim’s character

may be proved:

       (a) Reputation or opinion. In all cases in which evidence of character or a
       trait of character of a person is admissible, proof may be made by testimony
       as to reputation or by testimony in the form of an opinion. On
       cross-examination, inquiry is allowable into relevant specific instances of
       conduct.

       (b) Specific instances of conduct. In cases in which character or a trait of
       character of a person is an essential element of a charge, claim, or defense, or
       where the character of the victim relates to the reasonableness of force used
       by the accused in self defense, proof may also be made of specific instances
       of that person’s conduct.

¶17    While distinguishable, City of Red Lodge v. Nelson, 1999 MT 246, 296 Mont. 190,

989 P.2d 300, cited by both parties, is instructive. In Nelson, William Nelson was convicted

in the City Court of Red Lodge of partner assault after being found guilty of repeatedly

striking his partner, Donna, in the face and breaking her jaw. Nelson appealed his conviction

to district court and requested a de novo trial by jury. After providing notice that he intended

to argue self-defense and introduce evidence at trial of Donna’s previous convictions for

assault, the City of Red Lodge filed a motion in limine to prohibit Nelson from introducing

such evidence. The district court granted Red Lodge’s motion and we affirmed.

¶18    As does Montgomery, Nelson relied on the second prong of Rule 405(b), M.R.Evid.,

which allows introduction of specific instances of conduct “where the character of the victim

relates to the reasonableness of the force used by the accused.” Nelson, ¶ 12. In Nelson,

noting that Nelson actually relied on the defense of “accident” rather than “self-defense,” this

Court observed, “assuming arguendo that Nelson relied on the defense of self-defense, . . .

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evidence of [Donna’s] prior convictions for assault lacked relevance [under the second prong

of Rule 405(b), M.R.Evid.,] because Nelson never asserted that he knew of those convictions

when he struck her.” Nelson, ¶ 19. The Court also stated that Donna’s previous convictions

lacked relevance under the first prong of Rule 405(b), M.R.Evid., because a victim’s

character for violence is not an “essential element” of the defense of justifiable force. In

other words, Nelson would have to establish that he knew of Donna’s past convictions and

that his knowledge of those convictions led him to use the level of force he did. He could

not do so.

¶19    This analysis is applicable here. Unlike Nelson, Montgomery does not argue any

defense other than self-defense. However, like Nelson, in order to introduce Nygren’s

alleged prior bad acts to establish that his use of force against Nygren was reasonable, he

must establish that he knew he was shooting Nygren, that he knew of Nygren’s past violent

conduct, and that his knowledge of this conduct led him to use the level of force he did.

Assuming that Montgomery’s statements made near the time of the incident were truthful and

Montgomery did not know it was Nygren who was attacking him, under Nelson, Nygren’s

past was irrelevant. Under Rule 402, M.R.Evid., evidence which is not relevant is not

admissible.

¶20    In granting the State’s Motion in Limine, the District Court did not give any credence

to Montgomery’s testimony at trial that he did recognize Nygren just before shooting him.

Assuming arguendo, that Montgomery did, in fact, recognize Nygren a “split second” before

shooting him, our conclusion here remains the same. Montgomery failed to establish that

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his knowledge of Nygren’s past conduct was instrumental in reaching his decision to shoot.

Montgomery’s knowledge of Nygren’s criminal past appeared to be limited and he failed to

show, in his offers of proof, any connection between Nygren’s past and his use of force.

Rather, Montgomery’s testimony regarding the events that transpired on the evening of the

shooting simply showed that Montgomery’s fear of Nygren was based on Nygren’s behavior

just before the shooting. Since Montgomery did not establish that his knowledge of

Nygren’s past led him to use the level of force he employed, Nygren’s past was irrelevant

and inadmissible.

¶21    For the foregoing reasons, we conclude that the District Court did not abuse its

discretion in granting the State’s Motion in Limine.

                                     CONCLUSION

¶22    The District Court is affirmed.

                                                             /S/ PATRICIA O. COTTER




We Concur:


/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ JOHN WARNER
/S/ JIM RICE




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