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State v. Slert8/9/2005
A jury convicted Kenneth L. Slert of second degree murder with a firearm. Slert argues that he should receive a new trial because (1) the trial court erred when it did not give a jury instruction for justifiable homicide in resistance of a felony; (2) his counsel deprived him of a fair trial by failing to propose a self-defense revival instruction; (3) the trial court failed to suppress Slert's statements made after he invoked his right to remain silent; and (4) the trial court erred in refusing to admit certain testimony under the rule of completeness doctrine. We reverse and remand for a new trial.
FACTS
A. Factual Background
On an evening in October 2000, John Benson drove his truck up to Slert's hunting campsite. Benson invited Slert into the passenger side of his truck and the two men talked and drank whiskey for a short time.
According to Slert, he and Benson began to argue when Benson made numerous anti-government statements. Slert punched Benson a few times and Benson then reached for Slert's throat. Slert got out of Benson's truck and walked about 50 yards toward his tent in the dark in order to find and light his lantern.
Benson followed Slert, grabbed him as he reached the front of his tent, and again attempted to choke him. According to Slert, he broke free, crawled inside his tent, and grabbed his pistol because he feared for his life. As Benson started to enter the tent, Slert shot him, knocking Benson backwards out of the tent. When Slert stepped over Benson, Benson grabbed him and Slert shot him a second time.
Slert claimed that he did not touch Benson but went to Benson's truck, where he tried to use Benson's telephone and CB radio, but he could not reach anyone. Slert walked around 'buzzed' and 'dazed and confused' and eventually he fell asleep in his tent. Supp. Clerk's Papers (CP) at 25-26.
In the morning, as he drove toward town, he contacted a park ranger. The ranger handcuffed Slert, who was covered with blood, took three firearms from him, and returned with Slert to the campsite.
Detective Wetzold interviewed Slert at the campsite, and Slert told him that he punched a man in the face two times because they got into an argument about politics. He stated that he left the truck and that the man followed him to his campsite and began to 'mall {sic} him in front of his tent.' Report of Proceedings (RP) (May 17, 2004) at 140. Slert stated that he thought the man would kill him and that he shot the man twice from six to seven feet away in an upward direction.
Wetzold later found prescription eye glasses in Benson's truck. He observed various items in the truck's passenger seat, including an open bag of chips, which did not indicate to him that a person had been sitting in the passenger seat. Wetzold noticed significant ground debris on the front of Benson's body. He did not see blood or bullet holes inside Slert's tent, but did observe blood on the canvas lining.
Wetzold asked Slert to make a tape recorded statement and read him his Miranda rights. Slert chose not to make a recorded statement. Approximately two hours later, Wetzold approached Slert again for 'clarification' of his earlier statement. RP (May 12, 2004) at 45. Slert refused further conversation with Wetzold.
Sheriff McCrosky drove Slert to jail in his patrol car. En route to the jail, Slert spontaneously made statements about what had happened the night before. At the jail, the officers again gave Slert Miranda warnings before he agreed to give a tape recorded statement. This occurred approximately six hours after he arrived at the jail. The police then released Slert from jai
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