Where justifiable use of force has been placed at issue, “[e]vidence of the character of a victim of an assault is limited to what the defendant knew at the time [he] used force, and the defendant must show that this knowledge led to the use of force.” State v. Henson, 2010 MT 136, ¶ 27, 356 Mont. 458, 235 P.3d 1274 (citing DeSchon v. State, 2008 MT 380, ¶ 24, 347 Mont. 30, 197 P.3d 476; City of Red Lodge v. Nelson, 1999 MT 246, ¶ 19, 296 Mont. 190, 989 P.2d 300); see also State v. Montgomery, 2005 MT 120, ¶ 19, 327 Mont. 138, 112 P.3d 1014. The State acknowledges that justifiable use of force will be raised as an issue through its introduction of the 911 calls. Provided Lau can do so through the introduction of admissible evidence, he may be able to argue before the jury that his knowledge of specific instances of conduct by Kline led him to use deadly force.
¶23 A defendant is not bound to rely on his or her affirmative defense proposals at trial. Daniels , ¶ 16 (citing City of Red Lodge v. Nelson , 1999 MT 246, ¶ 13, 296 Mont. 190, 989 P.2d 300 ; State v. Logan , 156 Mont. 48, 65, 473 P.2d 833, 842 (1970) ). If the defense fails to present sufficient evidence regarding justifiable use of force, the defense fails.
¶ 16 We also disagree with Daniels' implication that by providing pre-trial notice of his intention to rely on JUOF as a defense, he satisfied his burden under § 46–16–131, MCA (2009), to “offer[ ] evidence,” and thereby shifted the burden of proof to the State. Notice does not place the defense of JUOF at issue during the trial. City of Red Lodge v. Nelson, 1999 MT 246, ¶ 13, 296 Mont. 190, 989 P.2d 300; State v. Logan, 156 Mont. 48, 65, 473 P.2d 833, 842 (1970) (the notice of self-defense served by defendant on the State pre-trial is immaterial and does not place the matter into issue during trial; defendant is not bound to rely on this defense at trial, notwithstanding service on the State).In the District Court, the parties agreed that sufficient evidence was offered by Daniels to raise JUOF as a defense, and the jury was instructed accordingly.
¶ 27 Evidence of the character of a victim of an assault is limited to what the defendant knew at the time she used force, and the defendant must show that this knowledge led to the use of force. Deschon v. State, 2008 MT 380, ¶ 24, 347 Mont. 30, 197 P.3d 476; City of Red Lodge v. Nelson, 1999 MT 246, ¶ 19, 296 Mont. 190, 989 P.2d 300. Therefore, it was not an abuse of discretion for the District Court to grant the State's motion to exclude evidence of Kingsley's interactions with others.
The court excluded the contents of the conversation on hearsay and relevancy grounds. The court later clarified its ruling, citing City of Red Lodge v. Nelson, 1999 MT 246, 296 Mont. 190, 989 P.2d 300, for the proposition that “if it's an accident, evidence of the victim's prior conduct is irrelevant.” The court stated that Hardman was attempting to introduce the telephone conversation as justification for carrying a weapon with him when he went to Blattie's home.
In this regard, Johnson contends the video Heltne allegedly began to play was admissible as a specific instance of Heltne's conduct because it related to the reasonableness of the force Johnson used in self defense. ¶ 24 Johnson cites two cases, City of Red Lodge v. Nelson, 1999 MT 246, 296 Mont. 190, 989 P.2d 300, and State v. Sattler, 1998 MT 57, 288 Mont. 79, 956 P.2d 54, in support of his M. R. Evid. 405(b) argument. Both cases involved justifiable use of force defenses and, in both, we upheld trial court decisions not to admit evidence of the victims' conduct for reasons not at issue in the present case.
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.