No. 14213
I N THE STJPFSEE C O W OF THE STATE O M3NTANA
F
1978
STATE O mNTANA,
F
P l a i n t i f f and Respondent,
-VS-
STEPHEN GONE, JR. ,
Defendant and Appellant.
A q p e a l from: D i s t r i c t C o u r t of the Seventeenth Judicial D i s t r i c t ,
Homrable -nard H. Langen, Judge presiding.
Counsel of Record:
For Appellant:
Peter 0. mltese argued, Glasgow, Pbntana
For Respondent:
Hon. Mike Greely, Attorney General, H e l e n a , mntana
Mike N T a r t e r argued, Assistant Attorney General, Helena,
Pbntana and Mark Racicot argued, Assistant Attorney General,
Helena, Fbntana
For Amicus Curiae:
Stephen L. Pevar, Denver, Colorado
Suhitted: September 1 4 , 1978
Decided:
@T S Q 2978
Filed : , --
*'C
c
!
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant appeals from his conviction of the crime of
aggravated assault following a jury trial in the District Court
of Phillips County.
Defendant Stephen Gone, Jr. and several companions
spent the afternoon and early evening of June 20, 1977, drink-
ing and visiting friends. En route from the home of one friend
to another, they stopped at Kalal's Bar and Cafe in Zortman,
Montana. While seated in the cafe waiting for their order to be
served, defendant used some profane language and further commented:
"If one more Indian gets killed at this establishment, we're going
to close it down". The bar owner, John Kalal, told defendant to
leave. A scuffle ensued and defendant was forcibly ejected.
Thereafter, according to one witness, defendant said, "Let's go
get that gun and fix him", while another witness indicated he
said "It's lucky they didn't have a gun in there."
About 4:30 the following afternoon John Kalal was working
outside behind his bar building when he noticed defendant's car
approaching. Sensing trouble, Kalal went in the back door of
the bar and called to his wife that "they were back". As Kalal
watched from inside the bar, defendant's car made a U-turn in
front of the bar so that his car was parked facing the direction
from which it had come. Defendant's car was 50 to 75 feet from
the front of the building.
Defendant stepped out of his car with a bolt action 30-06
rifle, aimed and fired about five shots into the building where
Kalal and his wife were. Defendant then sped out of town in his
car. Kalal, who had flattened himself on the floor after the
first shot, telephoned the authorities upon hearing defendant's
car leave.
Buddy Walsh, a highway safety patrolman on the Fort Belknap
~eservation,was working on his father's ranch outside Zortman
when his wife told him he had just received a call about a
shooting in Zortman. He observed defendant's car speed by
and gave pursuit. Defendant disregarded the siren and lights
on Walsh's patrol car and the patrolman's order over the P.A.
system to pull over. Defendant continued to the home of a
friend with the patrolman following. When defendant finally
stopped, he got out of his car and pointed his rifle at the
patrolman. Walsh pointed his pistol at defendant and ordered
him to drop his rifle. Defendant ignored the order and darted
into the brush.
Shortly thereafter, Walsh spotted the defendant on a
ridge several hundred yards away, heard a loud report, and heard
a shot that sounded close to him. Walsh backed his patrol car
out of range, leaving the matter in the hands of tribal police
who had arrived at the scene.
Defendant was arrested the following morning. He was
charged with the crimes of attempted deliberate homicide and
aggravated assault arising out of the incident at Kalal's Bar
and Cafe. Defendant entered a plea of "not guilty" to each charge.
Trial by jury in the District Court of Phillips County
began on November 21, 1977. Two days later the jury returned a
verdict of "not guilty" of the crime of attempted deliberate
homicide and a verdict of "guilty" of the crime of aggravated
assault. Following a presentence investigation, defendant was
sentenced to a term of 40 years in the State Prison as a persis-
tent felony offender pursuant to section 95-1507, R.C.M. 1947, as
amended. The judgment and sentence further provided that defen-
dant would be ineligible for parole or participation in the prisoner
furlough program while serving the first one-half of his term
pursuant to section 95-2206(3) (b), R.C.M. 1947, as amended.
Four specifications of error are presented for review in
this appeal: (1) Denial of defendant's motion for a jury view
of the scene of the crime; (2) admission of Buddy Walsh's testi-
mony concerning defendant's assault upon him and resisting
arrest; (3) insufficiency of the evidence to support conviction;
(4) the provision in the sentence that defendant would be in-
eligible for parole or the prisoner furlough program while
serving the first half of his term.
Defendant contends it was reversible error to deny his
motion that the jury be permitted to view the scene of the crime.
He argues that a fundamental issue in the case was whether he
could see inside the bar at the time of the shooting. If not,
he argues, he could not have intended to kill or injure anyone
inside. Therefore, he concludes, a jury view was required to
provide a real perspective on the location and distance of de-
fendant from the bar when the shots were fired, the location of
the buildings, the size of the front windows in the bar, the
size and dimension of objects in the windows that may have ob-
structed his vision, the lighting conditions inside the bar, and
the amount of glare reflected off the windows.
Statutory authority for a jury view of the scene of the
crime provides :
"When the court deems it proper that the jury
view any place or personal property pertinent
to the case, it will order the jury to be con-
ducted in a body under the custody of the sheriff
or bailiff, to view said place or personal
property in the presence of the defendant and
his counsel." Section 95-1912, R.C.M. 1947.
The purpose of a jury view is to enable the jury to
understand and apply the evidence given in the courtroom. State
v. Cates (1934), 97 Mont. 173, 33 P.2d 578; 75 Am Jur 2d Trial,
572. The general rules governing the trial court's discretion
to grant or deny a jury view has been expressed in this manner:
"As a general principle, a view or inspection
should be granted only where it is reasonably
certain that it will be of substantial aid to the
jury in reaching a correct verdict. The court
may refuse to allow a view where it does not
appear that the jury would be materially assisted
thereby, or where they are already familiar with
the premises involved, or where photographs, dia-
grams, or maps in evidence adequately present the
situation, or where the jury does not feel that
a view would be helpful or of benefit to them.
The court may also, in determining whether the
view shall be permitted, consider such matters
as expense, delay, the distance to be traveled,
inconvenience, and the complication and uncertainty,
or want of it, in the evidence." 88 CJS Trial 547.
Under Montana law, the matter of permitting a jury view rests
entirely in the discretion of the trial court and its determin-
ation will not be overturned except in case of manifest abuse.
State v. Allison (1948), 122 Mont. 120, 142, 199 P.2d 279, 292.
In this case there was extensive testimony describing the
scene of the shooting, the positions of defendant and the victim,
and relevant angles and measurements. Testimony was introduced
concerning the measurements of the bar windows; the lighting and
weather conditions; the position and distance of defendant from
the bar at the time of the shooting; and the position and dis-
tance of the victim from the windows at the time of the shooting.
Illustrative diagrams of the scene were drawn to aid the jury in
understanding this testimony. Two color photographs of the bar
were admitted in evidence, one taken from the position where
testimony placed the defendant at the time of the shooting. Testi-
mony from the victim, the victim's wife, and the deputy sheriff
indicated that defendant could have seen persons inside the bar
from a distance of 50 to 75 feet where testimony placed defendant.
One defense witness claimed he could not see into the bar, while
another defense witness claimed she could not see into the bar
from 150 feet, but could see into the bar when closer than that
distance.
A 45 mile trip one way from the courtroom to the scene of
the crime under zero degree weather conditions was involved in a
jury view. Under such circumstances the juror's ability to
perceive and appreciate the subtleties defendant suggests inhered
in the scene would have been diminished,if not destroyed.
Finally there was a significant danger that the jury
might be misled by the view. Six months had elapsed between the
date of the crime and the time of trial. The seasons had changed;
the lighting and weather conditions were substantially different;
the sun was in a different position in the sky and its rays shone
on the crime scene from a different angle than at the time of the
crime. A substantial potential for mischief regarding any deter-
mination of opacity and glare on the bar windows was inherent in
a jury view under such circumstances.
Because these substantial reasons existed for denying a
jury view of the crime scene, we hold there was no abuse of dis-
cretion or error in denying defendant's motion for a jury view.
Defendant next contends that the admission in evidence of
Buddy Walsh's testimony concerning defendant's assault on him
and resisting arrest constituted reversible error. He argues
that this testimony was irrelevant because other witnesses testi-
fied regarding intent and motive, and such testimony was preju-
dicial because the jury would think the worst of a person who
would commit unrelated crimes against a law enforcement officer.
The controlling statute reads:
"Other crimes, wrongs, acts. Evidence of other
crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show
that he acted in conformity therewith. It may,
however, be admissible for other purposes, such
as proof of motive, opportunity, intent, prepar-
ation, plan, knowledge, identity, or absence of
mistake or accident." Rule 404(b), Mont.R.Evid.
The Commission Comment to this rule notes that Montana law is
consistent with the concept that purposes other than those listed
may be used to admit evidence of other crimes.
In Montana the flight of defendant may be considered by
the jury as a circumstance tending to prove consciousness of
guilt. State v. Walker (1966), 148 Mont. 216, 225, 419 ~ . 2 d
300,
305. The testimony of Buddy Walsh is also admissible on the
issue of criminal intent; it has probative value as evidence of
defendant's state of mind. It tends to prove that notwithstand-
ing his drinking, defendant possessed the state of mind or intent
required to constitute the crime. Balancing this probative
value against the unfair prejudice defendant claims, we cannot
conclude that the latter outweighs the former and renders the
evidence inadmissible. Rule 403, Mont.R.Evid. We hold the
evidence admissible.
Defendant claims the evidence is insufficient to support
his conviction for two reasons: (1) That he was too intoxicated
to form the intent that constitutes an element of the crime of
aggravated assault, and (2) that his acquittal on the charge of
attempted deliberate homicide is inconsistent with his convic-
tion of aggravated assault.
We recognize that an intoxicated or drugged condition may
be taken into consideration in determining the existence of a
mental state which is an element of an offense. Section 94-2-109,
R.C.M. 1947. However, we have recognized that each case must
be determined by the jury on its own facts:
"'The element of felonious intent in every con-
tested criminal case must necessarily be determined
from the facts and circumstances of the particular
case--this for the reason that criminal intent,
being a state of mind, is rarely susceptible of
direct or positive proof and therefore must usually
be inferred from the facts testified to by witnesses
and the circumstances as developed by the evidence.
"'The question of intent is a question for the
jury. ' I ' State v. Pascgo (1977), Mont .
566 P.2d 802, 805, 34 St.Rep. 6 5 7 3 1 , citing I
State v. Cooper (1971), 158 Mont. 102, 489 P.2d 99.
Where the record contains considerable evidence of activity by
the defendant which the jury might have used to determine the
degree of his intoxication, the question of the relationship
between voluntary intoxication and criminal intent will not be
reconsidered on appeal. State v. Austad (1975), 166 Mont. 425,
430, 533 P.2d 1069, 1071; State v. Lukus (1967), 149 Mont. 45,
55-56, 423 P.2d 49, 55; State v. Reagin (1922), 64 Mont. 481,
489, 210P. 86, 88.
Here the shooting took place on the day after defendant
had been ejected from Kalal's bar. Uncontradicted testimony
established that defendant was sufficiently in control of his
faculties to drive to the bar, make a U-turn in contemplation
of his escape, and aim and fire his rifle several times with
calm deliberation. In the course of leaving the scene, he
attempted to elude a pursuing police officer and later resisted
arrest by that officer. Thus there was substantial circumstan-
tial evidence to support a finding of the requisite criminal
intent that is an element of the crime.
Defendant objects that he could not see into the bar
and was merely "shooting up a building" rather than knowingly
attempting to inflict serious bodily injury or reasonable appre-
hension of serious bodily injury as required by section 94-5-202(1),
R.C.M. 1947. Even conceding that defendant might not have been
able to actually see anyone inside the bar, that does not negate
the possibility that he acted knowingly. There was still the
jury question of whether he was necessarily aware of a high prob-
ability that someone was in the bar at 4:30 in the afternoon.
Section 94-2-101(28), R.C.M. 1947. Defendants argument in this
regard is not persuasive.
Likewise, we reject defendant's contention that the
verdict must be reversed for inconsistency. Consistency in ver-
dicts on multiple charges is not required in all cases. State
v. Thompson (1978), Mont . , 576 P.2d 1105, 1108, 35 St.Rep.
343, 347. "Inconsistency in a verdict is not in itself ground
for a new trial, unless the inconsistency is such as to invalidate
the verdict." 24 C.J.S. Criminal Law S1450.
We find no such inconsistency present here. Contrary
to defendant's contention, the elements of the crime of attempted
deliberate homicide and the crime of aggravated assault are not
almost identical. The two crimes are distinguishable in that
the crime of attempted deliberate homicide requires a specific
intent or purpose to cause death while the crime of aggravated
assault does not. Under the facts here, the jury could properly
find that although defendant did not specifically intend to kill
anyone, he did purposefully and knowingly place another in reason-
able apprehension of serious bodily injury, or he knew or should
have known that there was a high probability that shooting into
the bar would place another in fear of serious bodily injury.
The final issue concerns the legality of the provision
in the sentence rendering defendant ineligible for parole or
prisoner furlough until one-half of his sentence is served. This
issue was raised by the Attorney General; the American Civil
Liberties Union filed an amicus brief directed to this issue; and
upon oral argument both parties agreed that this restriction
could not be imposed in this case.
The crime of which defendant was convicted occurred on
June 21, 1977. The statute authorizing imposition of such restric-
tion had an effective date of July 1, 1977. Section 95-2206(3)(b),
R.C.M. 1947. Thus its application here was - -
ex post facto. A law
which eliminates or delays a defendant's parole eligibility after
the criminal offense has been committed is - -
ex post facto as applied
to that defendant. State ex rel. Nelson v. Ellsworth (1963), 142
Mont. 14, 380 P.2d 886; Greenfield v. Scafati (D. Mass. 1967)
277 F.Supp. 644, aff'd per curiam (1968), 390 U.S. 713. We order
such restriction stricken from the judgment and sentence.
Affirmed as modified.
Chief Justice
Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.