No. 13334
I N THE SUPREME COURT O THE STI-TE OF M N A A
F OTN
1976
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS -
CARL LEO ORSBORN,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
Honorable R o b e r t S. K e l l e r , Judge p r e s i d i n g .
Counsel o f Record :
For Appellant:
Fennessy, Crocker and Harman, Libby, Montana
David Id. Harman a r g u e d , Libby, Montana
F o r Respondent :
Eon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
John North, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
W i l l i a m A. Douglas, County A t t o r n e y , a r g u e d , Libby,
Montana
Submitted: August 30, 1976
Decided:
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F i l e d : :".
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.
Defendant a p p e a l s from h i s c o n v i c t i o n of one count of
aggravated a s s a u l t and t h e 20 year sentence imposed by t h e
d i s t r i c t c o u r t , Lincoln County.
The record r e v e a l s t h i s sequence of e v e n t s : On August 12, 1974
defendant C a r l Leo Orsborn began a lengthy p e r i o d of d r i n k i n g
by consuming a d r i n k s h o r t l y a f t e r a r i s i n g a t about 6:00 a.m.
L a t e r i n t h e morning he had a d r i n k w i t h a f r i e n d . A t approxi-
mately 1:00 p.m. he e n t e r e d t h e Mine Lounge i n Libby, Montana
and had s e v e r a l d r i n k s i n c l u d i n g one w i t h a f e l l o w p a t r o n , Charles
A. Lowder.
A f t e r d r i n k i n g most of t h e day Orsborn encountered J e s s e
F i r s t Raised and t h e y went t o t h e Mine Lounge t o c l o s e o u t t h e
day of d r i n k i n g . Lowder was s t i l l a t t h e b a r q u i t e i n t o x i c a t e d
and t h e barmaid pursuaded Orsborn and F i r s t Raised t o g e t him
o u t of t h e b a r s o s h e could c l o s e up. They p u t Lowder i n Orsborn's
c a r and a f t e r d r i v i n g around f o r sometime t h e y parked a t a g r a v e l
p i t l o c a t e d o u t of town. The testimony i s i n c o n f l i c t a s t o
whether o r n o t t h e two men were going t o " r o l l " Lowder b u t t h e r e
was no q u e s t i o n t h a t some kind of f r a c a s occurred a t t h e g r a v e l
pit and Lowder w a s h i t by a rock thrown by Orsborn.
A f t e r t h i s i n c i d e n t , Orsborn and F i r s t Raised g o t back i n
t h e c a r and continued d r i v i n g u n t i l they encountered Thomas A.
M i l l e r who was parked along t h e r o a d s i d e w i t h a f l a t t i r e . They
stopped and g o t a t i r e i r o n o u t of t h e t r u n k of Orsborn's c a r t o
f i x the f l a t t i r e . What happened n e x t i s s u b j e c t t o c o n f l i c t i n g
testimony. F i r s t Raised t e s t i f i e d Orsborn struck M i l l e r w i t h a
pulaski (an axe-hoe combination tool). Miller testified Orsborn
swung down with something. Orsborn testified he did not attack
Miller. At any rate, Miller suffered bruises to his neck and
shoulder.
Based on these two incidents, an Information was filed in
district court on August 15, 1974, charging Carl Leo Orsborn with
two counts of aggravated assault in violation of section 94-5-202,
R.C.M. 1947. Count I charged defendant with aggravated assault
by purposely or knowingly causing bodily injury to Charles Albert
Lowder by means of a weapon. Count 11 charged the same as to Tom
A. Miller. Trial was had on October 16, 1974, with Jesse First
Raised appearing as a witness for the state having been granted
immunity from prosecution for any role he had in the incidents,
The jury after retiring to consider a verdict reported it was
deadlocked, whereupon the court declared the matter a mistrial.
On November 12, 1974, a motion to sever the two counts and
request for separate trials was made by defendant. This motion
was subsequently denied. Defendant was again tried on the two
counts of aggravated assault on December 2, 1974. At the close
of the state's case, defendant's motion to dismiss Count I was
denied. On settling jury instructions, the court refused de-
fendant's proposed Instruction No. 2, covering the lesser included
offense of assault, section 94-5-201, R.C.M. 1947. The jury
found defendant not guilty on Count I and guilty on Count 11.
Following the verdict, a presentence investigative report was
filed and on December 26, 1974, a presentence hearing held.
Defendant was sentenced to 20 years in the Montana State Prison.
Defendant appeals from the judgment and sentence.
These issues are presented for review:
1. Whether the sentencing judge may receive and adopt
information from sources other than the testimony of witnesses
in open court?
2. Whether the Montana Youth Court Act applies to the
facts pertaining to sentencing in this case?
3. Whether the district court erred in refusing to give
defendant's proposed Instruction No. 2, covering the lesser
included offense of assault?
4 Whether the district court erred in refusing to grant
.
defendant% motion for separate trials on separate counts?
5. Whether the district court erred in refusing to grant
defendant's motion to dismiss Count I at the end of the state's
case.
Issue 1. Defendant contends his constitutional right to
confront the witnesses against him was violated by the pro-
ceedings at the presentence hearing. United States Constitution,
sixth and Fourteenth Amendments; Article 11, Section 24, 1972
Montana Constitution. In support defendant cites Kuhl v.
District Court, 139 Mont. 536, 568, 366 P.2d 347.
The specific portion of the presentence hearing which
defendant objects to is what occurred after defendant gave
facts in mitigation of sentence. (We note here that a copy of
the presentence report was furnished defendant and his counsel).
At this point the trial .judge said:
"This pre-sentence investigation report is silent with
respect to running off to Texas with your younger
brother and some girl. I am aware of that. I am
satisfied you are aware of that. But I am not satisfied
that the report shows that I am aware of it. And it is
the kind of a thing that I think you should have an
opportunity to explain if you want to, because it cer-
tainly is all black in the Court's mind."
In answer defendant, represented by counsel, admitted the
occurrence to be true. He made no statement in mitigation of the
facts the trial judge referred to. We find no constitutional
violation.
-
Our examination af.Kuh1, in relation to present Montana
~
statutory law and relevant federal case law, leads to the conclu-
sion that under the circumstances of this case defendant received
due process at the presentence hearing.
In -we note this statement by the Court:
Kuhl
"* * * However, keeping in view, as we must, the
provisions of sections 94-7813 and 94-7814, supra, the ques-
tion arises: Was the trial judge authorized to disregard
the mandates of the two-last mentioned sections and to
proceed to pass sentence upon the defendant Kuhl without
giving him or his counsel an opportunity to learn or know
any of the circumstances set forth in the investigator's
report and without giving either the defendant or his
counsel an opportunity to rebut or refute any of the re-
presentations therein contained?" (Emphasis supplied.)
Section 94-7813, R.C.M 1947, referred to in Kuhl provided
that the sentencing court in its discretion could hear circum-
stances in aggravation or mitigation of sentence. Section 94-
7814, R.C.M. 1947, provided that such "* * *circumstances must be
presented by the testimony of witnesses examined in open court
** *.I1 -
However, subsequent to Kuhl these statutory sections
were repealed. Sections 95-2203 and 95-2204, R.C.M. 1947, now
require that presentence information in mitigation or aggravation
of punishment be made available to the sentencing judge where
conviction may result in commitment of one year or longer. Section
95-2205, R.C.M. 1947, the present applicable statute pertaining
to sources of sentencing information, reads:
"* * * If the court discloses the identity of persons
who prozded information, the judge may, in his dis-
cretion, allow the defendant to cross-examine those
*
who rendered the information. * *" (Emphasis supplied.)
There is no lack of due process where the trial judge brings
to the attention of defendant facts he knows, that defendant
knows he knows, and gives defendant an opportunity to explain
them in a mitigation procedure, as in the instant case. Under
section 95-2205, the right of cross-examination in a presentence
hearing is a discretionary matter of the trial court.
Such a change in policy is reflective of the trend towards
distinguishing evidential procedure at trial from that at the
sentencing stage. The United States Supreme Court in Williams v.
New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L ed 1337, 1342,
stated:
"* * * Asentencing judge, however, is not confined to
the narrow issue of guilt. His task within fixed statutory
or constitutional limits is to determine the type and extent
of punishment after the issue of guilt has been determined.
Highly relevant--if not essential--to his selection of an
appropriate sentence is the possession of the fullest
in£ormation possible concerning the defendant's life and
characteristics. And modern concepts individualizing
punishment have made it all the more necessary that a sen-
tencing judge not be denied an opportunity to obtain per-
tinent information by a requirement of rigid adherence to
restrictive rules of evidence properly applicable to the
trial * * *." (Emphasis supplied.)
-
However, this does not mean that the spirit of Kuhl is dead. A
. .
convicted defendant still has a due process guarantee against a
sentence predicated on misinformation. The real question before us
then is whether defendant received that protection.
Here: (1) Defendant was represented by counsel at the time
the sentencing information was made known to him. Townsend v.
Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L ed 1690; Mempa v. Rhay,
389 U.S. 128, 88 S. Ct. 254, 19 L ed 2d 336; United States v. Hone,
(2) He had the opportunity to rebut the information. United
States v. Espinoza, 481 F.2d 553; United States v. Huff, 512 F.2d
66.
(3) Defendant chose to affirm the accuracy of the information.
United States v. Horsley, 519 F.2d 1264; United States v. Brown,
479 F.2d 1170; State v. Mann, - .
Mont , 546 P.2d 515, 33
St. Rep. 278.
Thus, any danger of utilizing misinformation in sentencing was thus
averted by the trial judge.
Issue 2. Defendant contends that the source of the presentence
information was his juvenile record. Since defendant had reached
the age of majority, its use in sentencing without his consent
or upon court petition is claimed to be prejudicial error under
the terms of the Montana Youth Court Act, Title 10, Chapter 12,
R.C.M. 1947.
The record, including the presentence investigative report,
reveals no indication of a juvenile record on the part of de-
fendant or that he was ever under the jurisdiction of the Youth
Court. We find no merit in defendant's second issue.
Issue 3. Defendant argues the use of a weapon was not
sufficiently established under Count I1 of the Information, thus
the district court erred in not giving defendant's proposed
Instruction No. 2 on the lesser included offense of assault.
Specifically defendant contends that since Jesse First Raised
could have been charged with accountability pursuant to sections
94-2-106 and 94-2-107, R.C.M. 1947, for his part in the Tom Miller
incident, any testimony he gave as to the use of a weapon in that
incident required independent corroboration under section 95-3012,
R.C.M. 1947. Defendant claims the state failed to supply the
necessary corroboration. The s t a t e , while not d i s p u t i n g t h e
need f o r corroboration due t o t h e f a c t t h a t F i r s t Raised had
been granted immunity from prosecution i n exchange f o r h i s t e s t i -
mony, t a k e s t h e p o s i t i o n t h a t t h e use of a weapon by defendant
a g a i n s t M i l l e r was s u f f i c i e n t l y corroborated.
The i s s u e then becomes---What kind of evidence i s s u f f i c i e n t
t o corroborate t h e testimony of one l e g a l l y accountable? Section
95-3012, R.C.M. 1947, s t a t e s :
"A conviction cannot be had on t h e testimony of one
responsible o r l e g a l l y accountable f o r t h e same o f f e n s e ,
a s defined i n s e c t i o n 94-2-106, unless he i s corroborated
by o t h e r evidence, which i n i t s e l f , and without t h e a i d
of t h e testimony of t h e one responsible o r l e g a l l y
accountable f o r t h e same offense, tends t o connect t h e
defendant w i t h t h e commission of t h e offense; and t h e
corroboration i s not s u f f i c i e n t , i t merely shows t h e
commission of t h e o f f e n s e , o r t h e circumstances thereof."
S t a t e v. Cobb, 76 Mont. 89, 92, 245 P. 265, has been c i t e d many
times Bs t o - t h e general g u i d e l i n e s f o r determining t h e s u f f i -
ciency of evidence corroborating t h e testimony of one l e g a l l y
accountable. -
Though Cobb was decided under s e c t i o n 11988, R.C.M.
1921, s i n c e repealed, t h e language of t h e o l d s t a t u t e i s n e a r l y
i d e n t i c a l t o t h a t of s e c t i o n 95-3012, R.C.M. 1947, i n p e r t i n e n t
part. e -
W n o t e t h e s e g u i d e l i n e s from Cobb:
" ( a ) The corroborating evidence may be supplied by
t h e defendant o r h i s witnesses.
"(b) It need n o t be d i r e c t evidence--it may be
circumstantial.
" ( e ) It need n o t be s u f f i c i e n t t o connect t h e defendant
with commission of t h e crime; i t i s s u f f i c i e n t - i f i t tends
t o do so.
" ( f ) Whether t h e corroborating evidence tends t o
connect t h e defendant with t h e commission of t h e
offense i s a question of law, b u t t h e weight of t h e
evidence *** i s a matter f o r t h e c o n s i d e r a t i o n of
t h e jury." (Emphasis supplied.) ,
The testimony concerning t h e a s s a u l t on M i l l e r i s undisputed
on t h e s e f a c t s : F i r s t Raised's testimony t h a t defendant f o r no
reason s t r u c k M i l l e r with a p u l a s k i b u t f o r t u n a t e l y M i l l e r saw o r
heard t h e a c t i o n and moved s o t h a t he was only s t r u c k i n t h e
shoulder and neck. The blow stunned Miller b u t he was a b l e t o
recover enough t o run away, chased a s h o r t time by defendant
c a r r y i n g t h e pulaski. M i l l e r saw enough t o t e s t i f y i t was de-
fendant, "not t h e Indian" who swung on him. Defendant and F i r s t
Raised immediately f l e d t h e a r e a and went t o Idaho. F i r s t Raised
t e s t i f i e d he had t h e p u l a s k i on t h e t r i p t o Idaho and threw i t
out of t h e c a r somewhere between Libby and P r i e s t River, Idaho.
W hold t h a t such c i r c u m s t a n t i a l evidence tends t o connect de-
e
fendant with t h e use of a weapon i n t h e a t t a c k on Miller. See:
S t a t e v. Spielmann, 163 Mont. 199, 516 P.2d 617; S t a t e v. Dess,
154 Mont. 231, 462 P.2d 186; 30 Am J u r 2d Evidence, 5 1153.
Therefore, t h e d i s t r i c t c o u r t did not err r e f u s i n g defendant ' s
proposed I n s t r u c t i o n No. 2 on t h e l e s s e r included o f f e n s e of
simple a s s a u l t . Spielmann, supra; S t a t e v. Perry, 161Mont. 155,
505 P.2d 113,
Issue 4; , Defendant a l l e g e s t h e d i s t r i c t c o u r t committed
r e v e r s i b l e e r r o r i n f a i l i n g t o g r a n t defendant's motion f o r s e p a r a t e
t r i a l s on s e p a r a t e counts of aggravated a s s a u l t . Though con-
ceding t h a t two offenses of t h e same c l a s s may be joined pursuant
t o s e c t i o n 95-1504(a), R.C.M. 1947, defendant notes t h a t t h e
s t a t u t e on joinder of offenses f u r t h e r provides a t s e c t i o n 95-
1504(c), R.C.M. 1947:
" I f i t appears t h a t a defendant *** i s prejudiced
by a joinder *** of s e p a r a t e charges ***the court
may o r d e r s e p a r a t e t r i a l s *** o r provide any o t h e r
re1 i e f a s j u s t i c e may require."
W f i n d no e r r o r due t o t h e f a c t defendant had s e p a r a t e
e
and d i s t i n c t defenses t o t h e two counts. He plead s e l f -
defense t o t h e f i r s t count and t h e jury must have believed him
f o r a t the second t r i a l he was a c q u i t t e d . A s t o Count 11, he
denied t h e a s s a u l t a l l e g i n g t h a t F i r s t Raised was g u i l t y .
Section 95-1504(c) i s s i m i l a r t o Rule 14, Federal Rules
of Criminal Procedure, and f o r t h i s reason we have examined
f e d e r a l case law on t h e p o t e n t i a l i t i e s of p r e j u d i c e r e s u l t i n g
from t h e j o i n d e r of two crimes of t h e same c l a s s . Federal
c o u r t s have found t h r e e b a s i c kinds of p r e j u d i c e t h a t may occur
upon t h e joinder of s i m i l a r offenses. Wright, 1 Fed.Pract. &
Proc., Criminal, 222, p. 437.
F i r s t , .the j u r y may consider defendant who i s s u b j e c t t o
m u l t i p l e :charges to-,be .a bad man. The p r e j u d i c e claimed i s t h a t
t h e j u r y may tend t o accumulate evidence a g a i n s t him u n t i l i t
f i n d s him g u i l t y of something. However, our examination of f e d e r a l
cases r e v e a l s t h a t such a claim of p r e j u d i c e r a r e l y has been found
s u f f i c i e n t t o provide r e l i e f . See: Johnson v. United S t a t e s ,
356 F.2d 680, cert.den. 385 U.S. 857, 87 S.Ct. 105, 1 7 L ed 2d
84; Pumrnill v. United S t a t e s , 297 F.2d 34. W do n o t f i n d such
e
a claim of p r e j u d i c e s u f f i c i e n t here. The burden of showing
p r e j u d i c e i s on defendant and here he f a i l e d t o make such a
showing.
Second, proof of g u i l t of one offense may be used t o convict
t h e defendant of another offense even though such proof may be
inadmissible a t a s e p a r a t e t r i a l . However, where, a s h e r e ,
t h e a l l e g e d f a c t of t h e s e p a r a t e offenses was s u f f i c i e n t l y d i s -
t i n c t t o allow t h e j u r o r s t o keep them s e p a r a t e i n t h e i r minds,
no prejudice w i l l be found. See: Drew v. United S t a t e s , 331
E.2d 85; Robinson v. United S t a t e s , 459 F.2d 847; United S t a t e s v.
Kellerman, 432 F.2d 371.
- 10 -
Third, prejudice may r e s u l t where t h e defendant wishes t o
t e s t i f y on h i s own behalf on one charge b u t not on t h e o t h e r . But
w e note f e d e r a l c o u r t s have only considered such a claim of
p r e j u d i c e where t h e a l l e g e d offenses were t o t a l l y s e p a r a t e a s
t o time, place and evidence. See: Cross v. United S t a t e s , 335
F.2d 987; United S t a t e s v. Lee, 428 F.2d 917; Holmes v. Gray,
526 F.2d 622. The f a c t u a l circumstances of t h e i n s t a n t case do
n o t lend themselves t o a claim of t h i s type of prejudice.
For t h e reasons s e t f o r t h , we f a i l t o f i n d any p r e j u d i c e
r e s u l t i n g t o defendant from t h e joinder of t h e two counts of
aggravated a s s a u l t .
I s s u e 5. Defendant contends t h e d i s t r i c t c o u r t e r r e d i n ,
f a i l i n g t o dismiss Count I of t h e Information a t t h e end of t h e
s t a t e ' s case. He c i t e s two reasons f o r t h i s p o s i t i o n . First,
t h e evidence on Count I was i n s u f f i c i e n t t o support a g u i l t y
v e r d i c t , and second, t h e c o u r t was under a continuing duty t o
p r o t e c t t h e defendant from p r e j u d i c i a l j o i n d e r of s e p a r a t e offenses.
W simply say t h a t i n view of t h i s Court's p o s i t i o n
e
on j o i n d e r of t h e two offenses i n t h i s c a s e , and t h e f a c t de-
fendant was found n o t g u i l t y on Count I , no p r e j u d i c e t o defendant
was demonstrated.
The judgment of t h e t r i a l c o u r t i s affirmed.
m
We Concur:
Justices 6