Dulaney’s Clarification of Self‑Defense in Attempted Homicide: Admission of Purposeful Use of Force Is Not an Admission of Intent to Kill

Dulaney’s Clarification of Self‑Defense in Attempted Homicide: Admission of Purposeful Use of Force Is Not an Admission of Intent to Kill

Introduction

In State v. M. Dulaney, 2025 MT 67, the Montana Supreme Court addressed a recurring point of confusion at the intersection of self-defense and the inchoate offense of attempted deliberate homicide. The Court affirmed three key rulings of the Twentieth Judicial District Court (Sanders County): (1) a defendant may be required to concede that he acted purposefully or knowingly in using force to raise justifiable use of force, but need not admit an intent to kill; (2) exclusion of a defense firearms/self‑defense expert was not an abuse of discretion on the pretrial record; and (3) denial of a post-verdict motion for acquittal or new trial under § 46‑16‑702, MCA, was correct because the evidence, viewed in the State’s favor, supported the jury’s verdicts.

The dispute arose from a neighbor conflict culminating in a shooting. Defendant Michel Scott Dulaney was convicted of three counts of attempted deliberate homicide for shooting neighbor Edgar Torrey and then exchanging fire with Torrey’s companions, brothers David and Troy Clifton. On appeal, Dulaney challenged (i) a pretrial ruling that he had to testify and admit purposeful/knowing conduct to assert self-defense; (ii) exclusion of his expert Gary Marbut on “shots in the back” mechanics; and (iii) the sufficiency of the evidence and denial of his § 46‑16‑702, MCA, post‑verdict motion.

The opinion sets an important doctrinal marker: invoking justifiable use of force concedes purposeful/knowing conduct in the use of force, not an intent to cause the forbidden result—especially salient when the charge is attempted deliberate homicide, which uniquely requires a “purpose to commit” the specific offense (i.e., a result—causing death).

Summary of the Opinion

  • Self-defense admission clarified: A defendant asserting justifiable use of force admits only that his use of force was a voluntary, purposeful/knowing act. He does not, by raising self-defense, admit a result‑based mental state (purpose or knowledge as to causing death). Requiring admission to every element, including an intent to kill in attempt charges, would contravene the presumption of innocence and the State’s burden to prove each element beyond a reasonable doubt.
  • Jury instructions: The instructions—using result‑based definitions of purpose/knowledge and correctly describing attempt—were sufficient when read as a whole. No plain error occurred.
  • Expert exclusion: The district court did not abuse its discretion by excluding the defense expert under Rules 702/403, given the State’s pretrial concession that it would not argue “retreat” and that the “shot in the back while turning” point was not disputed. The concurring opinion notes the trial record ultimately diverged and suggests counsel should have re‑raised admissibility at trial; the failure to do so defeated plain‑error review.
  • Post‑verdict motion: The court reaffirmed that both mid‑trial (§ 46‑16‑403, MCA) and post‑verdict (§ 46‑16‑702(3)(c), MCA) sufficiency challenges are judged by the same standard: whether, viewing the evidence in the State’s favor, a rational juror could find all elements beyond a reasonable doubt. Insufficiency yields an acquittal, not a new trial.
  • Outcome: Convictions affirmed.

Analysis

1) Precedents Cited and How They Shaped the Ruling

The Court situates the decision within Montana’s self‑defense and homicide jurisprudence, parsing conduct‑based versus result‑based mental states and the special structure of inchoate offenses:

  • Self‑defense framework:
    • Sections 45‑3‑102 to ‑108, MCA, define justified use of force; § 45‑3‑102 governs self‑defense, including deadly force limits.
    • Polak, Miller, Courville, Longstreth, and Daniels establish that self‑defense is an affirmative defense with a defendant’s initial burden of production to raise a reasonable doubt, after which the State must disprove justification beyond a reasonable doubt (see Fredericks (2024) and Erickson for the State’s burden).
    • R.S.A. emphasizes a defendant must admit the use of force (the conduct) to receive a self-defense instruction; mere cross‑examination insinuations aren’t enough if the defendant denies using force altogether.
  • “Conceding purposeful/knowing conduct” ≠ conceding result:
    • Nick, Sunday, Houle, and Nicholls use broad formulations that a defendant raising self‑defense concedes purposeful/knowing conduct. This opinion clarifies the proper scope of that concession.
    • German (2001) contained dicta suggesting a self‑defense claim “essentially admits the elements” including mental state; Dulaney expressly limits that dicta to German’s facts (defendant testified he consciously decided to shoot).
  • Attempted deliberate homicide as a result‑based, specific‑purpose crime:
    • Attempt requires acting “with the purpose to commit a specific offense.” § 45‑4‑103(1), MCA; see Sellner, Lake, Schmalz, Martin, Cowan, Gone, Howard.
    • Deliberate homicide is result‑based (causing death) with purpose/knowledge attached to the result: see Weinberger, McKenzie, Ilk, Rosling, Dubois, VanDyken.
    • Ilk and St. Marks foreshadow and frame the key insight: in an attempt case, a defendant can concede purposeful/knowing conduct (use of force) yet argue he lacked the purpose to cause death—the core of attempt liability.
    • Marfuta (2024) confirms that attempted deliberate homicide requires a result‑focused mental state and that instructions must capture that.
  • Standards for sufficiency and post‑verdict relief:
    • Mid‑trial dismissal (§ 46‑16‑403, MCA) and post‑verdict relief (§ 46‑16‑702(3)(c), MCA) share the same sufficiency standard: whether, viewing the evidence in the State’s favor, any rational juror could find each element beyond a reasonable doubt (see Swann, Bomar, Rosling, LaMere).
    • Insufficiency yields acquittal, not retrial, due to double jeopardy principles (see Polak, Craft, Barrows, Warren).
  • Expert evidence principles:
    • Rule 702 admissibility turns on whether the topic is beyond common experience and will assist the jury; Rule 403 guards against cumulative or confusing evidence (see Hulse, Arlington, Howard, Santoro, Durbin).
    • The concurrence invokes Gleed to emphasize the critical role an expert can play when uniquely probative of a defense theory—but underscores the controlling abuse‑of‑discretion standard and the importance of trial‑level preservation.

2) Legal Reasoning

a) Self‑defense admissions and attempt liability

The Court draws a critical doctrinal line: asserting justifiable use of force requires the defendant to acknowledge the conduct—that he voluntarily and purposefully/knowingly used force. That is necessary to “join issue” on self-defense. However, it does not compel the defendant to admit the result‑based mental state for the charged offense. This distinction matters acutely in attempt cases. Attempted deliberate homicide requires proof the defendant acted “with the purpose to commit the offense,” i.e., with the purpose to cause death, and committed an act toward that result. A defendant can thus maintain: “I intentionally used force in self‑defense; I did not intend to kill.”

The Court grounds this in:

  • Text and structure of Montana’s culpability statute (§ 45‑2‑101, MCA) differentiating conduct‑based and result‑based purpose/knowledge;
  • Constitutional due process requiring the State to prove each element beyond a reasonable doubt (Winship; Mills); and
  • Montana’s self‑defense regime, which imposes only a burden of production on the defense and then shifts a burden of disproving justification to the State (Fredericks; Erickson).

The Court expressly limits the broad dicta in German that a self‑defense claim “essentially admits the elements” of the offense, confining that statement to German’s particular facts (where the defendant testified he consciously decided to shoot). This clarification is the opinion’s most important precedential contribution.

b) Application to Dulaney’s trial

The district court initially suggested Dulaney would need to testify he recognized a “high likelihood” of causing death or serious injury with his shots—language that veered toward a result‑based concession. But in practice the court only required Dulaney to testify that he purposefully and knowingly used force, which he did. He repeatedly denied any purpose to kill, testifying he fired to stop a perceived threat. Because the jury was properly instructed on result‑based mental states and the State’s burden, the Court found no due process violation.

c) Jury instructions

Echoing Marfuta, the Court approved instructions that:

  • Defined purposely/knowingly using result‑oriented language;
  • Explained attempt requires acting “with the purpose to commit the offense of deliberate homicide”; and
  • Authorized the jury to infer mental state from acts and circumstances.

Taken together, these “minimally sufficient” instructions captured all elements and allowed the jury to determine whether Dulaney’s actions were directed toward purposefully or knowingly causing death. No plain error review was warranted.

d) Expert exclusion

The district court excluded a defense expert who would have testified, in substance, that a person can be shot in the back while turning during a rapid firing sequence—a point the State pretrial conceded and promised not to exploit as “retreat” evidence. On that record, the court concluded the expert would be cumulative or not helpful beyond lay understanding. The Supreme Court affirmed, emphasizing:

  • The “shot in the back” fact was not disputed pretrial; and
  • The State’s closing argument did not materially breach its concession—instead, it argued generally that the entire use of force was unreasonable and highlighted contradictions in testimony.

The concurrence agreed with the result but flagged a practical lesson. At trial, the anticipated harmony on “turning” disappeared: Torrey testified he was facing away when shot; Dulaney testified Torrey turned as he fired. Under those circumstances, the defense should have re‑raised expert admissibility to address a now-contested, technical, and central point. Failure to do so forfeited the issue for anything but plain error, which the concurrence would not invoke. The concurrence also expressed skepticism that Rule 403 “cumulative” logic can fairly exclude a single defense expert on a core self‑defense mechanic when the State’s case turns on it, citing Gleed’s recognition of the critical value of singular defense experts.

e) Post‑verdict relief and sufficiency

The Court clarifies that challenges to the sufficiency of the evidence—whether raised mid‑trial (§ 46‑16‑403, MCA) or post‑verdict (§ 46‑16‑702(3)(c), MCA)—are evaluated under the same de novo standard, viewing the evidence in the light most favorable to the prosecution to determine whether any rational juror could find each element beyond a reasonable doubt. An insufficiency finding yields an acquittal, not a new trial, to avoid double jeopardy. On the merits, the record (including testimony that Dulaney shot first, his anger, and the circumstances of the exchange) allowed a rational jury to reject self‑defense and find the requisite elements of attempted deliberate homicide for all three counts.

3) Impact and Practical Consequences

  • Clarified admissions for self‑defense in attempt cases: Defendants may raise justifiable use of force without confessing “intent to kill.” Trial courts should not condition self‑defense on an admission of all elements of attempt. This aligns practice with due process and resolves confusion spawned by earlier broad dicta.
  • Charging and trial strategy: Prosecutors should anticipate that a defendant can concede purposeful use of force yet contest the specific‑purpose element of attempt. Evidence of purpose to kill (or knowledge of a high probability of death) remains essential, and anger, threats, number and placement of shots, and conduct before/after will be litigated heavily.
  • Jury instructions: Courts must ensure result‑based mental state instructions for attempted deliberate homicide. Ilk and Marfuta remain the touchstones. Defense counsel should scrutinize instructions to preserve error.
  • Self‑defense burdens: Once the defendant produces some evidence of justification, the State carries the burden to disprove it beyond a reasonable doubt. Counsel should seek clear jury instructions reflecting the State’s responsive burden (Fredericks).
  • Expert practice and preservation: When exclusion turns on State concessions, defense counsel must re‑raise admissibility if trial evidence diverges. Conditional in limine rulings do not self‑correct mid‑trial. Failure to preserve will likely foreclose relief absent plain error.
  • Post‑verdict motion standards: Litigants should frame § 46‑16‑702, MCA, motions carefully. If the claim is evidentiary insufficiency, the remedy sought is acquittal; the standard matches § 46‑16‑403, MCA. New trial relief requires distinct grounds (e.g., newly discovered evidence, misconduct) and is reviewed for abuse of discretion.

Complex Concepts Simplified

  • Conduct‑based vs. result‑based mental states: “Purposely/knowingly” can attach to conduct (what you do) or results (what happens because of your conduct). Self‑defense admits the conduct was intentional; it does not concede that death (the result) was intended or known to be highly probable.
  • Attempted deliberate homicide: An “inchoate” crime. The death didn’t occur. The State must prove the defendant acted with the purpose to cause death and took a step toward that result.
  • Justifiable use of force: A complete defense if proven: the defendant reasonably believed force was necessary to avert imminent unlawful force; deadly force is justified only to prevent imminent death/serious harm or a forcible felony.
  • Burden shifting in self‑defense: The defendant must present some evidence (not prove) justification. Then the State must disprove justification beyond a reasonable doubt.
  • Plain error: An appellate safety valve, used sparingly. If a party fails to object or preserve an issue at trial, review is limited to errors that, if uncorrected, would seriously undermine the fairness or integrity of the proceedings.
  • Post‑verdict sufficiency: Both mid‑trial and post‑verdict sufficiency challenges ask whether any rational juror could convict on this record, viewed in the State’s favor. If not, the remedy is an acquittal, not a new trial.

Conclusion

State v. Dulaney is a clarifying decision that recalibrates Montana practice on the relationship between self‑defense and attempted deliberate homicide. The Court holds that invoking justifiable use of force concedes only that the defendant purposefully/knowingly used force, not that he intended to kill or knew death was highly probable. This limitation—explicitly narrowing prior dicta in German—preserves the presumption of innocence and the State’s duty to prove every element, including the specific‑purpose element unique to attempt.

The opinion also underscores disciplined trial craft: careful jury instructions for result‑based crimes, judicious use of expert testimony, and vigilant preservation when conditional evidentiary assumptions change mid‑trial. Finally, it harmonizes standards for sufficiency review across mid‑trial and post‑verdict contexts and reiterates that an insufficiency finding entitles a defendant to acquittal, not a do‑over.

In sum, Dulaney meaningfully advances Montana’s self‑defense jurisprudence by disentangling conduct admissions from result intent in attempt prosecutions, while offering pragmatic guidance on evidence, instructions, and post‑verdict practice that will shape future criminal trials statewide.

Case Details

Year: 2025
Court: Supreme Court of Montana

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