STATE v ZAMPICH
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82-419 I N T E SUPlG3ME COURT OF T E STATE O M N A A H H F OTN 1983 THE STATE O MONTANA, F P l a i n t i f f and Respondent, VS . KENNETH NORh'IAN ZAlQICH , Defendant 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 E i g h t h J u d i c i a l D i s t r i c t I n and f o r t h e County of Chouteau Honorable H . William Coder, Judge p r e s i d i n q . Counsel of RecordFor A p p e l l a n t : D a n i e l Donovan a r g u e d , G r e a t F a l l s , Montana For Respondent: 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 , Montana Dorothy McCarter a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , Helena A l l i n H. Cheetham, County A t t o r n e y , F o r t Benton, Montana - -- Submitted: Decided: Filed ~ AUG 1 1983 Ivlay 3 1 , 1 9 8 3 A u g u s t 1, 1 9 8 3 Yontana J u s t i c e F r a n k B. t h e Court. Jr. d e l i v e r e d t h e O p i n i o n of Morrison, Mr. Kenneth Zampich was c o n v i c t e d by a jury i n t h e Eighth J u d i c i a l D i s t r i c t Court of m i t i g a t e d d e l i b e r a t e homicide. was s e n t e n c e d t o twelve y e a r s years suspended. Zampich i n prison, now with appeals as four of the conviction his Wigger He and W e a f f i r m both. sentence. Defendant driver. worked On August for 26, Gary 1981, defendant, a grain truck Wigger a n d S c o t t y Smith went t o t h e C a r t e r Tavern i n C a r t e r , Montana, t o d r i n k b e e r and p l a y p o o l a f t e r work. them. The pool uneventful. drinking games Ray C l i n e , t h e owner, j o i n e d and the evening were Defendant stopped d r i n k i n g beer s o d a pop sometime late in the relatively a n d commenced evening. Witnesses t e s t i f i e d t h a t h e was n o t d r u n k . defendant As was preparing attempted t o purchase a bag of him over the defendant price in the and head a ice. fist with to leave bar, he Ray C l i n e a r g u e d w i t h fight his the ensued. fist. Cline The i n t e n s i f i e d by a t u r q u o i s e r i n g C l i n e was w e a r i n g . hit blow was The blow c a u s e d d e f e n d a n t t o f a l l a g a i n s t a j u k e box. Scotty saying: Smith "Well, broke the fight and defendant left, w e ' l l see what my 30.06 h a s t o s a y a b o u t i t . " Defendant's son, P a t r i c k , pickup truck. up r o d e home w i t h h i s f a t h e r i n t h e i r Pat t e s t i f i e d t h a t during t h e ride, h i s father s a i d t h a t he ought t o k i l l t h e "son-of-a-bitch". Sharon Zampich, wife of defendant, was watching t e l e v i s i o n when h e r husband and P a t a r r i v e d home a t 1 : 4 5 a.m. Defendant bedroom did and not speak returned with to his his wife, 30.06 Zampich a s k e d what h e was d o i n g , but rifle. went into When his Sharon defendant responded t h a t , "he was going after Ray Cline. " He then left the house and drove his pickup truck back toward the Carter Tavern. Sharon Zampich testified himself at that time. eyes were glazed. that her husband was not He appeared to be in a daze and his Pat was also uncertain his father knew what he was doing. Scotty Smith, Gary Wigger and other bar patrons testified that approximately ten minutes after defendant had left the bar, a shot was heard and Ray Cline fell to the floor. The shot came through a back window and had struck Cline in the back. Ken Zampich did not return home that night. He awoke the next morning in his truck on a sideroad near Floweree, Montana. His head had been bleeding and both his head and his back were aching. peacefully arrested He drove to Great Falls, where he was that same defendant's arrest, his 3 0 . 0 6 truck. day. At the time of rifle was found in his pickup He has no memory of what happened after Smith broke up the fight. After his non-dangerous conviction, offender defendant for purposes of was designated parole and a given credit for the ten months he had spent in the Choteau County jail awaiting trial. Further, he was permitted to serve the remainder of his sentence in the Choteau County jail rather than the Montana State Prison. He is now free on $ 2 5 0 0 bail pending this appeal of his conviction and sentence. The first issue presented on appeal is whether the District Court erred in refusing to instruct the jury that the burden is on the State of Montana to prove beyond a reasonable doubt that defendant Zampich acted knowingly and voluntarily? purposely, At trial defendant contended that, due to various circumstances at the time of the offense, including intense head, neck and back pain, humiliation, anger, mistreatment, fear, and the assault by Cline who had threatened to put him six feet under, he did not know what he was doing and was not able to control himself. Specifically, Zampich claimed that if he shot Ray Cline, it was not a voluntary act. That defense was supported by the testimony of Dr. J. Earl Farris, a psychologist who examined and tested Ken Zampich in October, 1981 and again in February, 1982. Dr. Farris testified that defendant's conduct, head injuries and emotional state support the theory that even though he might have been able to act in a directed way and with perception (purposely and knowingly), defendant may not have been acting . with "moral control" (voluntarily) been acting with That is, he might have cognition and without volition. Since evidence was presented that he might have been acting without volition, defendant argues that the jury should have been instructed regarding both cognitive and volitional behavior. Defense counsel submitted several proposed instructions concerning the concept that Zampich was not capable of acting purposely, knowingly defendant's proposed and voluntarily. instruction No. 43 For example, (setting out the theory of the defense) stated: "Under this Theory, the Defense contends that he did not act purposely or knowingly or voluntarily and was not capable of acting purposely or knowingly or voluntarily. The burden is on the State of Montana to prove beyond a reasonable doubt to a moral certainty that Kenneth Norman Zampich acted purposely, knowingly, and voluntarily and was capable of acting purposely, knowingly and voluntarily." The trial court gave essentially the same instruction, after deleting every use of the word "voluntarily". However, Instruction No. 6, as given by the trial court, stated: act." "A material element of every offense is a voluntary Section 45-2-202, MCA. That instruction properly called the jury's attention to the psychological evidence defense counsel had marshalled. Instructions No. 2 and No. 5 stated that the State of Montana has the burden to prove each element of the crime beyond a reasonable doubt. Reading all the instructions together, as is required by this Court, it is clear the jury was properly defendant's theory of the case. , Mont. Johnson (1982), 649 P.2d Mont . State v. McKenzie (1980), Cf. instructed State v. Riley (1982), 1273, 39 St.Rep , regarding 1491; State v. 646 P.2d 507, 39 St.Rep. 1014; Mont . , 608 P.2d 428, 37 St.Rep. 325, certiorari denied 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507; State v. Azure (1979), 181 Mont. 47, 591 P.2d The second issue before this Court is: Did the District Court err in failing to apply exceptions found in section 46-18-222 (2) and (3), MCA, to the mandatory two year minimum sentence for mitigated deliberate homicide and in failing to follow the procedures set forth in section 46-18-223, MCA? Section 46-18-222(2) and (3), MCA state: "Exceptions to mandatory minimum sentences and restrictions on deferred imposition and suspended execution of sentence. All mandatory minimum sentences prescribed by the laws of this state. do not apply if: .. (2) the defendant's mental capacity, at the time of the commission of the offense for which he is to be sentenced, was significantly impaired, although not so impaired as to constitute a defense to the prosecution; (3) the defendant, at the time of the commission of the offense for which he is to be sentenced, was acting under unusual and substantial duress, although not such duress as would constitute a defense to the prosecution." Defense counsel requested, at a hearing prior to sentencing, that section 46-18-222(2) and (3) be applied to defendant and that the two year minimum sentence for mitigated deliberate homicide not be imposed.. The trial judge applied section 46-18-222(2), MCA, to defendant but sentenced defendant to more than the mandatory minimum sentence for mitigated deliberate homicide. We find no error. The trial judge gave great consideration to defendant's situation prior to imposing the sentence. The sentencing order contains specific reasons for the sentence imposed. The procedures of section substantially followed. 46-18-223, MCA, have been We would be "splitting hairs" to overturn the sentence in this case because the trial judge did not make a specific finding stating 46-18-222, MCA, should not apply because that "section . . ." Defendant's conviction and sentence are affirmed. We concur:
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