No. 81-343
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
CARL PIERCE,
Defendant and Appellant.
Appeal from: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin
Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
For Appellant:
A. Michael Salvagni, Bozeman, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Donald E. White, County Attorney, Bozeman, Montana
Submitted on briefs: November 18, 1981
Decided: July 7, 1982
Filed :
-
JUL 7 1982
Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the
Court.
On May 13, 1981, a jury for the Eighteenth Judicial
District Court, Gallatin County, found Carl Pierce guilty of
one count of aggravated assault, a felony, and one count of
misdemeanor assault. Pierce had previously pled guilty to
another misdemeanor, failure to stop at the scene of an
accident. The court issued a sentence and judgment June 8,
1981, sentencing defendant to: twenty years on one count
of aggravated assault; one year to run concurrently, on
failure to stop; and six months,to run consecutively, for
misdemeanor assault. Defendant appeals. We affirm.
At approximately 2:00 P.M., March 7, 1981, defendant
Carl Pierce left Dillon, Montana, and drove toward Gallatin
Gateway to visit his wife. His nephew and a hitchhiker
accompanied defendant as far as Bozeman. Defendant then
proceeded al3ne, west on U. S. Highway 191, until becoming
involved in a serious accident around 6:15 P.M. He abandoned
his car and fled the scene of the accident.
Defendant was later apprehended in Country Lanes Bowling
Alley and arrested for leaving the scene of an accident. He
was taken to the Bozeman police station, where he agreed to
submit to a breathalyzer test. The results of the test
indicated that defendant's blood alcohol level was .16
percent. In Montana, an individual whose blood alcohol
level is greater than -10 percent is presumed to be under
the influence of alcohol in a criminal prosecution for
driving under the influence of alcohol. See section 61-8-
401(3) (c), MCA.
Defendant pled guilty March 9, 1981, in Gallatin County
Justice Court, to driving under the influence of alcohol.
On March 11, 1981, defendant participated in a taped interview
with an investigator from the Gallatin County Attorney's
Office, during which defendant discussed his activities the
day of the accident. An information was then filed March
13, 1981, charging defendant with the following:
COUNT I: AGGRAVATED ASSAULT, a felony, for knowingly
causing serious bodily injury to Jeri Lyn Francisco, in
violation of section 45-5-202(1)(a), MCA;
COUNT 11: AGGRAVATED ASSAULT, a felony, for knowingly
causing bodily injuries to the other passengers with a
weapon, in violation of section 45-5-202 (1)(b), MCA; and
COUNT 111: FAILURE TO STOP AT THE SCENE OF AN ACCIDENT,
a misdemeanor, in violation of section 61-7-103, MCA.
Defendant pled guilty to Count I11 and proceeded to
trial on Counts I and 11. At trial, several individuals
testified that as they were travelling west on U. S. Highway
191 around 6:00 P.M., March 7, 1981, an older green car
passed them on the right shoulder of the road, travelling at
a high rate of speed. The car defendant was driving, and
which was abandoned at the scene of the accident, was a
green 1968 Mercury.
According to witnesses, the driver of the older green
car attempted to similarly pass a 1979 Toyota pickup truck.
The pickup was occupied by Shirley Francisco and four children.
Mrs. Francisco and two of the children sitting in the back
of the enclosed pickup testified that they saw the green car
rapidly approach the rear of their pickup while on the right
shoulder of the road and then felt the impact of the crash.
All five passengers were thrown from the vehicle. Mrs.
Francisco suffered a fractured right shoulder and a compound
fracture of her left ankle. Kevin Schmidt, the other passenger
in the cab of the pickup, received lacerations on his back
and was dazed. The three girls sitting in the bed of the
enclosed pickup were also injured. Rochelle Francisco was
hospitalized for chest pains and dizziness, while Brenda
Schmidt was hospitalized for back and neck pain.
Jeri Lyn Francisco suffered the most serious injuries.
She was flown to Billings for emergency surgery to remove
broken skull fragments from the back of her head and to stop
the bleeding of lacerated brain tissue. Attending physicians
testified that prior to completion of the surgery on Jeri
Lyn, they had believed she was in serious danger of losing
her life.
The investigating police officers testified that by
conducting a vehicle license check, they learned that the
owner of the Mercury automobile was Virginia Pierce. When
Mrs. Pierce was contacted, she told the police that her
husband, Carl Pierce, had been in possession of the car for
approximately one month. Mrs. Pierce later contacted Bozeman
police and told them her husband had called and requested
she pick him up at the Country Lanes Bowling Alley. Two
officers proceeded to the bowling alley, found defendant
sipping his first drink at the bar, questioned him and
arrested him for failure to stop at the scene of an accident.
The officers testified that Mr. Pierce initially denied
being involved in the accident. Mr. Pierce told the officers
that he had left his car in Sheridan, Montana, and had hitch-
hiked to Bozeman. He later admitted to being the driver of
the 1968 Mercury at the time of the accident.
~ u r i n gthe taped interview, Pierce admitted that he was
intoxicated at the time of the accident and stated that he
probably should not have been driving. He had consumed
twelve beers between noon and the time of the accident.
He also stated that he did not recall passing any
vehicle on the right shoulder of U. S. Highway 191. Defen-
dant's version of the accident was that the brake lights of
the Toyota came on as he was properly passing it, causing
him to apply the brakes of his car and slide into the Toyota.
He then fled the scene of the accident out of fear.
At the close of the trial, the jury found defendant
guilty of aggravated assault for knowingly causing serious
bodily injuries to Jeri Lyn Francisco and guilty of misdemeanor
assault for negligently causing bodily injuries with a
weapon to the others in the car. In his appeal of those
convictions, defendant presents three issues to this Court:
(1) Whether defendant's constitutional right against
being placed in double jeopardy was violated when, as a
result of the same transaction, defendant pled guilty in
justice court to driving under the influence of alcohol and
was later charged in District Court with aggravated assault?
(2) Whether there was sufficient evidence to prove
defendant knowingly caused serious bodily injury to Jeri Lyn
Francisco, so as to constitute an aggravated assault?
(3) Whether the convictions should be overturned as
requiring two mutually exclusive mental states to exist
simultaneously?
Both before and during trial, defendant made motions to
dismiss the aggravated assault charges against him. He
alleged that a charge of aggravated assault would violate
his constitutional right against being placed in double
jeopardy as he had already pled guilty to another charge
arising from the same accident, driving under the influence
of alcohol. We disagree with defendant's contention.
The applicable codification of defendant's constitutional
right against being placed in double jeopardy is found in
section 46-11-504 (1):
"46-11-504. Former prosecution in another
lsdiction -- when a bar. When conduct
constitutes an offense within the concurrent
jurisdiction of this state and of the United
States or another state or of two courts of
separate, overlapping, or concurrent juris-
diction in this state, a prosecution in any
such other jurisdiction is a bar to a subse-
quent prosecution in this state under the
following circumstances:
"(1) The first prosecution resulted in an
acquittal or in a conviction as defined in
46-11-503 and the subsequent prosecution is
based on an offense arising out of the same
transaction. "
Section 46-11-503(3)(c) defines conviction as including
"a plea of guilty accepted by the court. . ." Therefore,
section 46-11-504 may apply to defendant as his guilty plea
is considered a conviction for purposes of that statute.
The prohibition against double jeopardy was construed
by the United States Supreme Court in Blockburger v. U. S.
(1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306: "The
applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires
proof of a fact which the other does not." 384 U. S. at
Driving under the influence of alcohol, S61-8-401(1)(a),MCA,
requires proof that the individual was under the influence
of alcohol and proof that he was driving or in control of a
vehicle while under the influence. Aggravated Assault, ~ 4 5 -
5-202(1)(a), MCA, requires proof defendant knowingly caused
serious bodily injury. Assault, S45-5-201(1) (b), MCA, requires
proof defendant negligently induced injury with a weapon.
Driving under the influence does not require proof of bodily
injury. Assault does not require proof of intoxication.
Each offense requires proof which the other does not. We
therefore find no violation of defendant's constitutional
right against being placed in double jeopardy.
As his second contention, defendant asserts that there
was insufficient evidence presented at trial on which a jury
could base a determination that defendant knowingly caused
serious bodily injury to Jeri Lyn Francisco. "Knowingly" is
defined in part as follows:
". . . A person acts knowingly with respect
to the result of conduct described by a
statute defining an offense when he is aware
that it is highly probable that such result
will be caused by his conduct. ..'I Section
45-2-101 (33), MCA.
A jury may use circumstantial evidence to determine the
existence of a particular mental state. State v. Pascgo
(1977), 173 Mont. 121, 126, 566 P.2d 802, 805. That is,
they may infer the mental state from what the defendant does
and says and from all the facts and circumstances involved.
State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009.
Flight by the defendant may be considered by the jury as a
circumstance tending to prove consciousness of guilt. State
v. Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291, 1295.
During his interview with the investigator from the
County Attorney's Office, defendant admitted that he had
consumed twelve beers, that he was intoxicated, and that he
probably should not have been driving when the accident
occurred. He also admitted fleeing the scene of the accident
because of fear. Witnesses described defendant's high rate
of speed and illegal passing maneuvers. These facts support
the jury's determination that defendant knew there was a
high probability that driving while under the influence of
alcohol would cause serious bodily injury to another.
Defendant's third contention is that the two verdicts
are inconsistent in that they require mutually exclusive
mental states to exist simultaneously. Although they arose
from the same accident, one charge alleged defendant knowingly
caused serious bodily injury to another while the second
alleged defendant knowingly caused bodily injury to others
with a weapon. The jury found defendant knowingly caused
serious bodily injury to one victim, but as to the less
seriously injured victims, the jury found defendant acted
negligently and therefore convicted defendant of misdemeanor
assault under 545-5-201(1)(b), MCA. However, we do not
agree with defendant that the two mental states are mutually
exclusive.
The aggravated assault conviction requires a mental
state of "knowingly." The assault conviction requires a
mental state of "negligently." They are not mutually exclusive
mental states.
"Negligently" is defined in relevant part as follows:
". . . a person acts negligently with respect
to a result or to a circumstance described by
--
a statute defining an offense when he conscious-
disregards _ risk that -
a _ the Fesult will occur
--- the circumstance exists or when he
or that
disreaards a risk of which he should be aware
-
d
that the result will occur or that the circum-
stance exists. The risk must be of such a
nature and degree that to disregard it involves
a gross deviation from the standard of conduct
that a reasonable person would observe in the
actor's situation. 'Gross deviation' means a
deviation that is considerably greater than
lack of ordinary care. . ."
Section 45-2-101
(37), MCA. (Emphasis supplied.)
The jury was so instructed.
The jury, in finding the knowledge required for aggravated
assault, found that defendant was aware of the high probability
that serious bodily injury would occur if he drove while
under the influence of alcohol. Thus, defendant violated
$45-5-202(1) (a), MCA. It was not inconsistent for the jury
to also find that defendant disregarded the risk that bodily
injury would occur and thus found defendant guilty of criminal
negligence, in violation of $45-5-201(1)(b), MCA. Aggravated
assault requires a knowledge which is aware and therefore under-
stands that a certain result is likely to follow. Misdemeanor
assault, in its negligent form, requires only an indifference
to result.
The mental state required to satisfy "knowledge" is
more culpable than that for "criminal negligence" because
the actor must know it probable that a result will follow.
"Criminal negligence" can be shown if risk to others is
disregarded. However, proof of knowledge necessarily proves
the elements of criminal negligence. You cannot engage in
conduct knowing it likely will harm others without, at the
same time, disregarding the risk to those others. The
mental states are therefore not mutually exclusive.
The judgment of the District Court is affirmed in its
entirety.
We Concur: /
Justices Daly and Shea dissent and their written dissent
will be filed later.
No. 81-343
STATE V. P I E R C E
Dissent of Mr. Justice Daniel J. Shea and concurrence
by Justice Gene B. Daly
3ated: October 1, 1932
, 1982
PART I. INTRODUCTION.
By affirming the assault convictions, the majority have
tortured and mutilated the assault statutes; they have construed
the essential mental state "knowingly" (which should be
"purposely or knowingly") so that it means nothing more than
conduct amounting to criminal negligence; they have ignored
the jury instructions which defined "knowingly" in four ways;
they have ignored fundamental appellate rules designed to assure
the reliability and integrity of the trial process; they have
ignored the fundamental rule which requires the court to
instruct on a lesser-included offense; they have ignored the
effect of the jury acquittal on the count I1 charge of aggravated
assault where the jury found that defendant did not "knowingly"
commit the act charged; they have failed to consider whether
defendant was properly charged with assault "with a weapon" and
whether he was properly convicted of negligent assault "with
a weapon;" and finally, they have failed to consider the
illegality of the trial court's sentence. This adds up to a
manifest miscarriage of justice.
Although most of these issues were not raised by defense
counsel, we nonetheless have a duty to discuss and decide these
issues under the plain error doctrine. By failing to do so we
have become an accomplice to the grievous errors committed in
this case.
The assault statutes, in their present form, were not
intended to apply to a drunken and reckless driving case which
results in a collision and injuries to occupants of the other
vehicle. However drunken and reckless the defendant's driving,
the assault statutes were not intended to cover this kind of
case. Ironically, had one or more of the occupants of the
other vehicle been killed rather than injured, defendant
would have been charged with negligent homicide, and, upon a
conviction, would have been subject to a maximum 10 year
prison sentence. But because the State has gotten away with
charging him with aggravated assault, defendant has had a 20
year sentence imposed for the count I conviction. The 6
month consecutive prison sentence for the conviction on
count I1 of the lesser-included negligent assault "with a
weapon" has only added to the illegality of the entire
proceedings.
I have no doubt that the legislature can create a crime
to punish by a severe prison sentence those who by their
criminal negligence (drunken and reckless driving in this
case) abuse their driving privileges and injure or maim
other users of the highway. A criminal negligence statute
to that effect would be upheld just as it is now permissible
to file a negligent homicide charge against a person who
recklessly causes an accident which kills another person.
But, as stated by the Arizona Supreme Court in State v.
Balderrama (1964), 97 Ariz. 134, 397 P.2d 632, "criminal
neglect can supply the place of the intent only where the
legislative power has expressly so provided." The legislature
has failed to enact this legislation in this state, and the
defendant cannot be held responsible for that.
PART 11. SUWRY O ISSUES R E Q U I R I N G THAT BOTH ASSAULT
F
CONVICTIONS BE REVERSED AND THE CHARGES ORDERED DISMISSED.
Aside from t h e i s s u e s r a i s e d by d e f e n d a n t (and b o t h
t h e d e f e n d a n t ' s and t h e S t a t e ' s b r i e f s a r e w o e f u l l y i n a d e q u a t e ) ,
s e r i o u s e r r o r s e x i s t which r e q u i r e a n a p p e l l a t e c o u r t t o
c o n s i d e r and d e c i d e i s s u e s n o t r a i s e d . T h i s Court h a s t h e
r i g h t and h e r e ' t h e d u t y t o c o n s i d e r and d e c i d e t h e s e i s s u e s
e v e n though t h e y w e r e n e i t h e r r a i s e d i n t r i a l c o u r t n o r on
appeal. See Kudrna v. Comet C o r p o r a t i o n ( 1 9 7 7 ) , 175 Mont.
29, 51, 57 P.2d 133, 195; Hamorson v . Hamorson ( 1 9 7 7 ) , 175
IlIont. 170, 173-174, 573 P.2d 169, 172. The p l a i n e r r o r r u l e
a p p l i e s t o e v i d e n t i a r y r u l i n g s a s w e l l a s t o p u r e m a t t e r s of
law. See Rule 1 0 3 ( d ) , M0nt.R.Evi.d. I c a n t h i n k o f no c a s e
s i n c e I have been on t h i s Court t h a t i s more r i d d l e d w i t h
e r r o r n o t r a i s e d by c o u n s e l and i s t h e r e f o r e d e s e r v i n g o f an
application of t h e p l a i n e r r o r rule. I t i s e s p e c i a l l y compelling
t h a t w e invoke t h a t r u l e i n t h i s c a s e b e c a u s e t h i s i s t h e f i r s t
t i m e t h a t t h e a s s a u l t s t a t u t e s have been used t o p r o s e c u t e a
drunk d r i v i n g c o l l i s i o n c a s e which h a s r e s u l t e d i n i n j u r i e s t o
o t h e r u s e r s o f t h e highway. To h i d e o u r head i n t h e sand h e r e
o n l y compounds t h e i n j u s t i c e p e r p e t r a t e d o n t h e d e f e n d a n t i n
t h e name of j u s t i c e .
On S e v e r a l Grounds t h e Count I C o n v i c t i o n of Aggravated A s s a u l t
Must be Reversed and t h e Charge Ordered Dismissed:
I t i s t r u e , a s defense counsel contends, t h a t t h e S t a t e
f a i l e d t o prove i n c o u n t I t h a t d e f e n d a n t "knowingly" committed
t h e a c t charged--that i s , t h e S t a t e f a i l e d t o prove t h a t
d e f e n d a n t "knowingly" d r o v e h i s c a r i n t o t h e F r a n c i s c o p i c k u p .
Beyond t h i s i s s u e , however, s e v e r a l grounds e x i s t which r e q u i r e
r e v e r s a l of t h i s conviction.
F i r s t , t h e m a j o r i t y has f a i l e d t o consider whether t h e
S t a t e c o u l d l e g a l l y c h a r g e o n l y t h a t d e f e n d a n t "knowingly"
committed the assault. The assault statute sets forth the
mental state to be proved as "purposely or knowingly."
Further, the majority has failed to discuss the mental state
"knowingly" or "purposely or knowingly" in its relation to
the statutory tests for causation--which must be met. The
majority has ignored the statutory scheme setting forth the
tests of causation in relation to the mental state which must
be proved. This statutory scheme leads to the inescapable
conclusion that causation was not proved and that the
collision in this case, because of the facts, was not designed
to fall within the clutches of the assault statutes. See
part IIIA and B of this dissent.
Second, the majority has chosen one definition of
"knowingly" of four given to the jury, but even in analyzing
the evidence giving so-called life and meaning to this definition,
they have Landed short and wide of the mark. In concluding that
defendant "knowingly" acted, the majority have astoundingly
relied on defendant's intoxication, on defendant's flight
after the collision, and on defendant's high spee6 and illegal
passing maneuvers just before the collision. The majority has
taken giant strides backwards in concluding that this evidence
proved that defendant "knowingly" drove his car into the
Francisco picltup. See part IV of this dissent.
Third, the majority opinion leaves the impression that
the only definition or theory of "knowingly" given to the
jury was that definition discussed in the majority opinion.
In fact a total of four definitions of "knowingly" were given
to the jury (instruction no. lo), and only a clairvoyant court
could determine which definition the jury applied in reaching
its verdict. Because most appellate courts recognize they
are not endowed with such powers, they have adopted basic,
axiomatic rules of appellate review to review convictions.
These rules are designed to assure the reliability and
integrity of the trial and fact-finding process. The majority
have once again ignored these rules in their rush to affirm
the count I aggravated assault conviction.
In order to uphold the verdict, each of the theories of
"knowingly" given to the jury must have been proper in this
case and each of the theories must have been supported by
substantial evidence. If both of these requirements were
not met, a reversal is required unless it can be stated beyond
a reasonable doubt that the jury relied only on the definition
chosen by the majority to uphold the conviction. No con-
scientious appellate court can make that declaration, however,
and the judgment must be reversed because the jury may have
relied on an erroneous theory of "knowingly" in reaching its
verdict. See part V of this dissent.
Fourth, the evidence required that the trial court give
a lesser-included assault instruction for count I, and the
failure to give such instruction was reversible error. See
part VI of this dissent.
Fifth, in ruling that the count I aqgravated assault
conviction is not inconsistent with the count I1 lesser-
included negligent assault "with a weapon" conviction, the
majority have ignored the vital fact that the jury found
defendant not guilty of count I1 aggravated assault, and in
doing so, found that he did not Rknowingly" commit the act
charged. Counts I and I1 arose out of the same act and
necessarily the sane mental state accompanied that act. The
conviction of count I aggravated assault, including a deter-
mination that defendant "knowinglyP'committed the act charged,
flies in the face of the count I1 acquittal which found that
defendant did not "knowingly" commit the act charged. Logic
and fairness require that the count I aggravated assault
conviction be reversed. See part VII of this dissent.
The Count I1 Lesser-Included Negligent Assault "With a Weapon"
Conviction Must Also Be Reversed:
Although the jury acquitted defendant of count I1
aggravated assault "with a weapon," I nonetheless discuss this
charge because defendant should never have been charged with
this offense and because the State will undoubtedly now be
using this provision to charge assault in similar cases--a
charge totally unjustified. See part VIIIA, B , C, and D, of
this dissent.
In addition, although defense counsel failed to raise any
issue with relation to the negligent assault "with a weapon1'
conviction, the conviction must nonetheless be reversed for
it is not supportable under the law or facts.
First, section 45-2-103(1)(2), MCA, requires that the
State prove defendant negligently caused the injuries and to
prove that he negligently used a weapon. The jury was not
so instructed and for this reason alone the conviction must
be reversed. If this were the only error, perhaps a new trial
would be the proper result.
Second, I find it difficult to understand how a defendant
can be held responsible for using a weapon, the gist of the
crime, if it is not proved he was aware he was possessing a
weapon. The jury was not instructed on this requirement, and,
furthermore, no evidence exists to support such requirement.
The only evidence in the case is that defendant was drunk and
recklessly driving his car, and as a result caused the collision
which resulted in the injuries to the occupants of the Francisco
pickup.
Third, because of the statutory definition of "wea~on,"
no item can be held to be a "weapon" as a matter of law.
Whether an item was used as a weapon is proved by how it was
used, that is, intentional use. Because defendant did not
intentionally ram his car into the back of the Francisco
2ickup it was not proved that he used his car as a weapon.
See part VIIIA, B, C, and E of this dissent.
The consecutive sentence imposed is illegal:
Defendant was given consecutive sentences: 20 years for
the aggravated assault conviction, and 6 months - prison
in
for the misdemeanor assault conviction, to be served after
serving the 20 year sentence. The trial court had no authority
to impose the G months prison sentence on the misdemeanor charge
for the law does not permit a judge to sentence a defendant to
prison for a misdemeanor conviction.
Further, under the single transaction theory of double
jeopardy--here one act was committed and necessarily one mental
state accompanied that act--defendant has been given two
sentences. If he intentionally caused the injuries to the
occupants of the Francisco pickup, it is possible that con-
secutive sentences would not offend the double jeopardy
provisions. However, where he was at most criminally negligent,
the trial court violated the spirit of the double jeopardy
provisions of our constitutions by imposing consecutive sentences.
This one act, being only a negligent act rather than an
intentional act, should not be twice punished.
See part IX of this dissent.
PART 111. THE STATUTORY MENTAL STATES REQUIRED FOR PROOF
OF A CRIB43 HAVE BEEN UNDETEFWINED, AND THE TEST FOR
CAUSATION HAS BEEN IGNORED.
I n upholding t h e c o n v i c t i o n by i t s i n t e r p r e t i o n of
t h e m e n t a l s t a t e "knowingly," t h e m a j o r i t y h a s t a k e n a
g i a n t s t e p i n undermining t h e t e s t s t o p r o v e an e s s e n t i a l
e l e m e n t o f a crime. And, i n i g n o r i n g t h e t e s t s f o r c a u s a t i o n
which must n e c e s s a r i l y be a p p l i e d i n d e t e r m i n i n g w h e t h e r
d e f e n d a n t "knowingly" committed t h e a c t c h a r g e d , t h e m a j o r i t y
h a s r e n d e r e d m e a n i n g l e s s any r e q u i r e m e n t t h a t t h e S t a t e p r o v e
t h a t t h e a c t o f c a u s a t i o n w a s accompanied by t h e m e n t a l s t a t e
s e t f o r t h a s an e s s e n t i a l e l e m e n t o f t h e c r i m e . Whether t h e
c h a r g e be t h a t t h e d e f e n d a n t " p u r p o s e l y o r knowingly" a c t e d ,
o r t h a t t h e d e f e n d a n t "knowingly" a c t e d , t h e t e s t now i s
simply whether, i n b r i n g i n g about t h e r e s u l t , t h e defendant
was c r i m i n a l l y n e g l i g e n t .
A. The " P u r p o s e l y o r Knowingly" Mental S t a t e
S i n c e t h e enactment o f t h e 1973 C r i m i n a l Code ( e f f e c t i v e
i n J a n u a r y 1 9 7 4 ) , t h i s s t a t e h a s had t h r e e t e r m s which s e t
f o r t h t h e m e n t a l s t a t e r e q u i r e d f o r t h e commission of a
crime. Most o f t h e s t a t u t e s r e q u i r e t h a t t h e s t a t e p r o v e
t h e d e f e n d a n t " p u r p o s e l y - knowingly" committed t h e a c t .
or
(Emphasis a d d e d . ) Some s t a t u t e s r e q u i r e o n l y t h a t t h e d e f e n d a n t
" n e g l i g e n t l y " commit t h e a c t . The t e r m " n e g l i g e n t l y , ' "
however, i s a c t u a l l y d e f i n e d i n t e r m s o f a g r o s s l y n e g l i g e n t
act. N e g l i g e n t homicide i s t h e b e s t example.
The misuse o f t h e t e r m " p u r p o s e l y o r knowingly" h a s now
a r r i v e d a t a p o i n t where i t h a s c e a s e d t o have any s u b s t a n t i a l
meaning. I n f a c t , d e f e n d a n t h a s been c o n v i c t e d o f "knowingly"
committing an a s s a u l t where t h e proof amounts t o no more
t h a n g r o s s n e g l i g e n c e a s t h a t t e r m i s d e f i n e d . The consequences
are great. IE the State can allege in any felony charge,
including homicide, only that the defendant "knowingly"
committed the act, it means that one can be convicted of
deliberate homicide by proof that amounts to no more than a
showing that defendant was grossly negligent.
The assault statutes involved in this case require that
the State prove the defendant "purposely or knowingly"
committed the act. Both the felony statute (section 45-5-
202, and the misdemeanor assault statute (section 45-5-201)
contain this language. The sole exception is subsection (b)
of the misdemeanor assault statute, which describes one
kind of assault as "negligently causes bodily injury to
another with a weapon."
We must first look to the allegation of the mental
state pleaded in count I and count 11. The State knew that
it could not prove the defendant "purposely" committed the
act charged, and so it was not alleged. Instead, the State
charged only that defendant "knowingly" committed the act
alleged in both counts. The State gambled on the alternative
language of the statute--"purposely - knowinglyw--and
or
decided that it could allege just that defendant "knowingly"
committed the act. I believe, on the other hand, that the
State was required to allege and prove that defendant
"purposely" committed the act. It was the State's burden to
prove that defendant "purposely" drove his car into the
Francisco pickup.
Although I will not detail the differences between the
statutory mental elements of "purposely," "knowingly," and
"negligently," I quote them with the hope that anyone readin9
them will immediately recognize they do not have the same
meaning. They were intended as, and they are, three, separate
mental states.
The highest state of mental culpability is given the
name "purposely." Section 45-2-101(58), MCA, defines
"purposely" as follows:
'@]person acts purposely with respect to a
result or/%nduct described by a statute defining
an offense if it is his conscious object to engage
in that conduct or to cause that result. When a
particular purpose is an element of an offense, the
element is established although such purpose is
conditional, unless the condition negatives the
harm or evil sought to be prevented by the law
defining the offense. Equivalent terms such as
'purpose' and 'with the purpose' have the same
meaning. "
The next state of mental culpability is given the name
"knowingly." Section 45-2-101(33;, MCA, defines "knowingly"
as follows:
w@jperson acts knowingly with respect to
conduct or to a circumstance described by a
statute defining an offense when he is aware
of his conduct or that the circumstance exists.
A person acts knowingly with respect to the
result of conduct described by a statute defining
an offense when he is aware that it is highly
probable that such result will be caused by his
conduct. When knowledge of the existence of
a particular fact is an element of an offense,
such knowledge is established if a person is
aware of a high probability of its existence.
Equivalent terms such as 'knowing' or 'with
knowledge' have the same meaning."
This statute actually defines "knowingly" in several ways,
or sets forth several theories or basis by which a person
acts "knowingly." As I thoroughly explain in part V of this
dissent, the trial court converted section 45-2-101(33)
into a jury instruction which defined "knowingly" in four
alternative ways.
A 1980 annotation for this statute, explains the
concepts of "knowingly" and "purposely" as follows:
"Under the new Code, the concepts of 'knowingly'
and 'purposely,' replace the old term 'intentionally.'
The terms, however, - - synonymous. 'Knowingly'
are not
refers to an awareness of the nature of one's
conduct or of the existence of specified facts or
circumstances. 'Purposely' refers to the actor's
objective or intended resilt. The definition for
'knowingly' -----
is taken primarily from the Model
Penal - - - a significant departure from the
Code, but
source is the s u b s t i t u t i o n - phrase'high
- the
- 'practically certain.' Thus,
probability'for
the drafters of the new Code chose to substitute
a less rigid requirement. Several states, including
New York and Illinois, have enacted similar although
not identical provisions. The 1977 amendment made
some minor grammatical changes." (Emphasis added.)
Montana Criminal Code 1973 Annotated (1982 rev. ed.)
The lowest state of mental culpability is given the
name "negligently." Section 45-2-101(37), MCA, defines
"negligently" as follows:
"[A] person acts negligently with respect to
a result or to a circumstance described by a
statute defining an offense when he consciously
disregards a risk that the result will occur
or that the circumstance exists or when he
disregards a risk of which he should be aware that
the result will occur or that the circumstance exists.
The-risk must be of such a nature and degree - -to
-- ---- that
disregard it involves - -
a gross deviation - -
from the
standard ofconduct that a reasonable person
p -
would observe - - actor's situation-. 'Gross
in the
deviation' means a deviation - -is considerably
that
greater - -lackof ordinary care. Relevant
than -
terms such as 'negligent' and 'with negligence'
have the same meaning." (Emphasis added.)
This definition obviously describes conduct beyond that
which is "negligence" as commonly understood in the civil
law. It describes conduct that can more aptly be described
as gross negligence - criminal negligence.
or
It is apparent that the terms "purposely" and "'knowingly"
do not have the same meaning. Each is meant to refer to a
different state of mind. Even the term "negligently,"
however, is meant to refer to a state of mind rather than
simply to refer to the character of the act committed. In
its comment to the misdemeanor assault statute, the Criminal
Law Commission, that body primarily, if not totally, responsible
for drafting the 1972 Criminal Code presented to the legis-
lature, stated:
". . . Another change [(from the old criminal
code to the present one)] is that the offense
must be committed purposely, knowingly or
negligently, thus maintaining the intent element
consistent with the other proposed statutes
---
dealing with offenses against the person."
This statutory scheme for the mental state is further
explained in the Montana Criminal Code 1972 (1980 rev. ed.),
where the annotators state:
". . . Similarly, state - - -is made an
of mind - -
explicit element of - offense with knowledge
- the
or purpose required under subsections (a), (c),
and (d) and negligence required under subsection
(b) . .." (Emphasis added.) Page 167.
Another statute attempts to explain what proof will
satisfy the mental element where it must be proved that one
acted "negligently" or that one acted "knowingly." Section
45-2-102, MCA, provides:
"When the law provides that negligence suffices
to establish an element of an offense,such
element also is established if a person acts
purposely or knowingly. When acting knowingly
suffices to establish an element, such element
also is established if a person acts purposely."
This statute is also explained in Montana Criminal Code 1972
Annotated (1980 rev. ed.) :
"This section is intended to obviate any
possible misunderstanding as to what mental
state will satisfy the requirements of each
statutory provision. Proof of the higher or
more specific mental state will satisfy any
lesser mental state that may be required by
a particular statute."
This statute has the salutary purpose of not permitting
a defendant to avoid criminal responsibility because of a
technicality in proving the mental element of a crime--as
-
- - - as a higher more specific mental element --
long has been
proved. But there is no higher mental element than "purposely,"
and therefore proof that an act was "knowingly" committed
does not supply proof that an act was "purposely" committed.
That is why the statute states only that "when acting know-
ingly suffices to establish an element, such element is
established if a person acts purposely." In other words, it
does not state that proof of "knowingly" will suffice for
proof of "purposely" where "purposely" must be established
as an element of the crime.
The "purposely - knowingly" language of the assault
or
statutes, like all the statutes containing the same language,
provides an impermissible option for the state in deciding
how to allege the mental state. The statutes state in effect:
proof of the highest mental state, that is, "purposely,"
is desirable, but proof of a lower mental state, that is,
"knowingly," will suffice. The State can reason: why
bother with alleging and proving a higher mental state--
"purposelyn--if a lower mental state--"knowinglyI1--will
suffice? This prosecutor's option is not an acceptable
statutory scheme for alleging and proving the mental state
required as one of the elements of a crime.
This case fully exemplifies the injustice of a felony
charge which has alleged only that the act was "knowingly"
committed. An intentional act is the essence of an assault.
There was no assault in this case unless the State could
prove that defendant "purposely" drove his car into the
Francisco pickup. The failure to allege and prove that the
act was "purposely" committed should be fatal to the
conviction. Yet the defendant has been convicted of
aggravated assault on evidence which proves only that he
drove his automobile in a criminally negligent manner. The
majority rationale for upholding that conviction, if it says
what I think it says, is utterly preposterous.
I preface my remarks with an admission that I have had
more than a difficult time making some sort of sense out of
the majority holding. It appears, however, that the majority
did not conclude that the defendant "knowingly" drove his
car into the Francisco pickup. Rather, the conclusion is
that defendant, throughout the course of the day, acted
"knowingly," and his acts or series of acting "knowingly,"
finally ended in a high probability that defendant would
cause an accident. The occurrence of the accident was an
aggravated assault because the defendant had acted "knowingly"
all day long.
And now we must look to the evidence relied on by
the majority in concluding that the defendant acted
"knowingly." First, the majority conclude that evidence
of defendant's intoxication supplies proof that he acted
"knowingly." This conclusion rests on the incredible
assumption that the capacity to act "knowingly" increases
with the degree of intoxication. In other words, the
greater the degree of intoxication, the greater is the
likelihood that one will act "knowingly." This conclusion
defies common sense, and, furthermore, flies in the face of
a statute. Second, the majority conclude that defendant's
flight from the scene is additional evidence that defendant
acted "knowingly." This conclusion is equally as astounding
because the record is barren of any indication that the
State relied on flight to establish the mental state of
"knowingly," or to establish anything at all. Nor, of
course, does flight help establish the specific mental
state with which a person acted. Nor was the jury instructed
on flight as an evidentiary proposition and the effect to
give to defendant's flight. Third, the majority conclude
that defendant's high speed and illegal passing maneuvers
also supplied proof that defendant acted "knowingly." This
evidence proves that defendant acted in a grossly negligent
manner, but it does not tend to prove that he "knowingly"
acted. (See part IV of this dissent, where I discuss in
detail each of these factors relied on by the majority.)
B. CAUSATION--THE STATE FAILED TO PROVE THE DUAL STATUTORY
THST FOR CAUSATION
The question of whether defendant's - caused the
act
collision, which resulted in the injuries to the occupants
of the Francisco pickup, was never in dispute. Defendant
caused the collision--and his conduct was a "gross
deviation from the standard of conduct that a reasonable
person would observe in the actor's situation." Defendant
was drunk and immediately before the collision he was seen
by other witnesses to be speeding and making illegal passing
maneuvers. But that is only proof of criminal negligence.
The State never proved, and the evidence does not exist to
prove that the results--the "serious bodily injury" to Jeri
Lyn Francisco and the "bodily injuries" to the remaining
occupants--were "within the contemplation - purpose" of
or
the defendant. The State proved a causal connection between
the act and the results, but it did not prove a causation
connection between the mental state--"knowingly,"--and the
results. This is yet another reason why the count I con-
viction must be reversed and the case ordered dismissed.
The conviction here was undoubtedly aided by failure of
the parties to consider the statutes relating to causation,
and by the failure of the trial court to properly instruct
the jury on the law of causation.
Causation cannot be viewed in isolation, that is, by
looking solely to a determination of who caused the result.
Montana statutes require that there also be a determination
of the state of mind of whomever caused the result. If the
state of mind did not accompany the act which caused the
result, the test for causation under the criminal law, has
not been met. Four statutes hear on t h e question of
causation. Section 45-2-201, MCA, defines "causation" in
terms of the act - the mental state to be proved.
and This
statute twice refers to the term "conduct," which has a
special statut~rymeaning. Section 45-2-101(14),MCA, defines
the term "conduct" as it is used in the criminal code, and
"conduct" includes the act and the accompanying mental
-23-
state. S e c t i o n 45-2-103(2), MCA, sets f o r t h t h e t e s t a s t o
w h e t h e r t h e m e n t a l s t a t e t o be proved a p p l i e s t o e a c h o f t h e
e s s e n t i a l e l e m e n t s t o be proved. And s e c t i o n 4 5 - 2 - 2 0 1 ( 2 ) ,
MCA, r e q u i r e s t h a t t h e r e s u l t must b e " w i t h i n t h e c o n t e m p l a t i o n
o r purpose" of t h e defendant.
Proof o f who c a u s e d t h e r e s u l t c a n n o t b e s e p a r a t e d from
t h e m e n t a l s t a t e of t h e p e r s o n who c a u s e d t h e r e s u l t . The
a c t , combined w i t h t h e m e n t a l s t a t e , d e t e r m i n e s t h e i s s u e
of causation. S e c t i o n 45-2-201(1), MCA, defines causation
a s follows: "'Conduct' i s t h e cause of a r e s u l t i f (a)
w i t h o u t t h e c o n d u c t t h e r e s u l t would n o t have o c c u r r e d .. .I'
(Emphasis added. ) The t e r m c o n d u c t i n t h i s d e f i n i t i o n , and
t h r o u g h o u t t h e c r i m i n a l c o d e , h a s a s p e c i a l s t a t u t o r y meaning
t h a t h a s been c o n s t a n t l y i g n o r e d . S e c t i o n 45-2-101 (14), MCA,
d e f i n e s "conduct" a s follows:
" ' C o n d u c t ' means a n a c t o r series o f a c t s ,
and - a c c o m p a n y i n g m e n t a l s t a t e . "
-the (Emphasis
added. )
The r e s u l t r e f e r r e d t o i n c o u n t I o f t h e a g g r a v a t e d
a s s a u l t c h a r g e i s t h e " s e r i o u s b o d i l y i n j u r y " s u s t a i n e d by
J e r i Lyn F r a n c i s c o . The r e s u l t r e f e r r e d t o i n c o u n t I1
of t h e aggravated a s s a u l t charge i s t h e " b o d i l y i n j u r y "
s u s t a i n e d by t h e o t h e r o c c u p a n t s o f t h e F r a n c i s c o p i c k u p .
However, f o r t h e S t a t e t o p r o v e c a u s a t i o n it w a s n o t enough
t o prove t h a t defendant caused t h e r e s u l t s - - h e did. The
S t a t e was a l s o r e q u i r e d t o p r o v e t h a t d e f e n d a n t "knowingly"
caused t h o s e r e s u l t s . iie d i d n o t -
Another s t a t u t e , s e c t i o n 45-2-103(2),provides that the
S t a t e must p r o v e t h e m e n t a l s t a t e w i t h r e s p e c t t o e a c h
e s s e n t i a l e l e m e n t u n l e s s it i s o t h e r w i s e s p e c i f i c a l l y
provided i n t h e s t a t u t e c r e a t i n g t h e c r i m e . That s t a t u t e
provides i n part:
"(1) A person is not guilty of an offense,
other than an offense which involves absolute
liability, unless, with respect to each element
described by the statute defining the offense,
he acts while having one of the mental states
described in subsections (33) [which defines
'knowingly',] (37) [which defines 'negligently'],
and (58) [which defines 'purposely'I of
45-2-101.. ..
"(2) If the statute defining an offense prescribes
a particular mental state with respect to the
offense as a whole without distinguishing among
the elements thereof, - prescribed mental
the
state applies --- such element." (Emphasis
to each
added. )
This statute was ignored in this case. The result
of the accident, with relation to the count I charge, is
that Jeri Lyn Francisco sustained "serious bodily injury."
"Serious bodily injury" was the only essential element to
be proved aside from the mental state. The statute required
the State to prove that defendant "knowingly" caused the
result--"serious bodily injury." Count I1 had two essential
elements to be proved. By this statute, the State had to
prove that defendant knowingly caused the result--"bodily
injuryu--to the other occupants of the Francisco pickup.
The State also had to prove that defendant "knowinqly"
- - a weapon.
used The jury was not instructed on these
requirements.
This statute (45-2-103) also had application to the
lesser-included negligent assault with a weapon charge.
Aside from the negligent state of mind, the State had to
prove two essential elements: first, that defendant caused
"bodily injury" and second, that it was "with a weapon,"
that is,that he used a weapon. The statute required the
State to prove defendant negligently caused "bodily injury"
and to prove that the defendant negligently used a weapon.
The jury was not instructed on these requirements.
To prove that defendant "knowingly" caused the results
(that is, the injuries to all of the occupants), the State
was required to prove that the injuries sustained were
"within the contemplation - purpose - - defendant." Not
or of the
a scintilla of evidence shows that injuries to any of the
occupants of the Francisco pickup were "within the contemplation
or purpose" of the defendant. The State therefore failed
to prove the two pronged test of causation--which requires
not only that defendant caused the result, but that he
knowingly caused the result. (See part VIII of the dissent
where I discuss the negligent assault with a weapon charge.)
Where defendant's conduct (his act plus his accompanying
mental state, section 45-2-101 (11)), shows a break in the
chain of causation (section 45-2-201 (1)) , the State has not
proved causation in the context of a criminal charge.
Section 45-2-201, although imprecisely and inartfully drafted,
is designed as a guide in determining the inner and outer
limits of causation with respect to the three statutory
mental states--"purposely," "knowingly," and "negligently."
Where the charge is that a defendant "purposely or knowingly"
caused a result, the test is whether the result was "within
the contemplation - purpose" of the defendant.
or Section 45-
2-201(2). The statute also sets forth two circumstances
in which defendant will be held responsible even though the
precise result was not within the contemplation or purpose
of the defendant.
First, "if the result differs --
from that
contemplated only in the respect that a
different person or different property is
- -
affected ok that the injury or harm caused
is -- contemplated. Section 45-2-201
less than
(2)(a), MCA. (Emphasis added. )
Second, if "the result involves the same kind
of harm or injury as contemplated but the
precise harm or injury was different or occurred
in a different way, unless the actual result is
too remote or accidental to have a bearing on
the offender's liability or on the gravity of the
offense." (Emphasis added.) Section 45-2-201
(2)(b) MCA-
To establish causation under the criminal code, the
State had to prove that the results ("serious bodily injuries"
to Jeri Lyn Francisco, and "bodily injuries" to the other
occupants of the pickup) were "within the contemplation or
purpose" of the defendant. The phrase "within the con-
templation or purpose" was meant to be construed as a unitary
test rather than to be split into two tests. Nonetheless,
I proceed with my analysis on the basis that two tests are
established, and that either one can be applied in determining
causation.
The best evidence of the fact that the results were
not within the purpose of the defendant is the deliberate
decision of the State to omit from the charges an allegation
that the act was "purposely" committed. The State knew
it could not prove that fact. The term "purposely" is
defined in section 45-2-101(58), supra (part IIIA of this
dissent), and of course the State did not in any event prove
that the act of driving into the Francisco pickup was
"purposely" committed. The next question is whether the
results were "within the contemplation" of the defendant.
Neither the term "within the contemplation" nor the
word "contemplation" is defined by the criminal code.
A dictionary definition of contemplate means "to -
- view
or consider with considerable attention." The Merriam
Webster Dictionary (1974 ed.). Although the word "contemplate"
or "contemplation" should perhaps be given a little more
leeway when used in the criminal context of causation,
gonetheless, the State was at least required to prove that
defendant devoted some attention to causing injuries to the
occupants of the Francisco pickup. It was not required that
the State prove that defendant knew who was within the
pickup, but simply that he devoted attention to causing
injuries to the nameless occupants of the pickup. Not a
scrap of evidence shows that the defendant contemplated
colliding with the Francisco pickup or any other vehicle.
The reason is simple enough: defendant did not knowingly
commit the act of driving his car into the Francisco pickup.
If he did not knowingly commit this act it cannot be held
under any circumstances that he knowingly contemplated
(viewed or considered) the probable results of that collision
--injuries to the occupants of the Francisco pickup.
The misuse of the criminal intent mental state "purposely
or knowingly" has resulted in a gross miscarriage of justice.
This, combined with the failure to apply the proper statutory
test of causation, resulted in a conviction that cannot meet
minimum due process standards. The count I aggravated assault
conviction must be reversed and the charge ordered dismissed.
PART IV. THE STATE FAILED TO PROVE THAT DEFENDANT "KNOWINGLY"
COMMITTED THE ACT CHARGED.
The majority conclusion that the State proved defendant
"knowingly" committed the act charged cannot be justified on
the facts or on the law. It is built on a majestic house
of cards.
At the outset I emphasize that the majority have seized
on a definition (that definition suggested in the State's brief)
of "knowingly" to justify the affirmance, despite the fact
that it has not been shown, and cannot be shown, that the
jury relied on that definition or theory in reaching its
verdict. Assuming, therefore, that the majority is correct
in its analysis of the facts, the conviction would nonetheless
have to be reversed. Because this is a separate ground for
reversal, and because it requires extensive discussion, I
cover this issue in Part V of this dissent.
To affirm the conviction the majority relies on several
factors which are categorized as circumstantial evidence
leading to the conclusion that defendant "knowingly" acted.
Although I agree, of course, with the majority statement
that the mental element of a crime may be inferred by
circumstantial evidence-rarely does the evidence permit an
excursion into the defendant's mind to determine what he was
thinking or what his purpose was at the time of the act in
question--the fact remains that none of the evidence relied
on tends to prove that defendant "knowingly" drove his car
into the Francisco pickup.
First, in relying on proof of defendant's intoxication
as proof that he acted "knowingly," the majority have given
defendant's intoxication a legal effect neither supported by
common sense nor by the law. And, in doing so, the majority
have ignored section 45-2-203, MCA, which permits the jury
to consider intoxication as having the potential to negate
proof of the existence of the required mental state to
complete the crime. Second, the majority have taken another
giant step backwards by effectively holding that flight
after the collision tends to prove a specific mental element
of the crime--namely, that defendant "knowingly" committed the
act charged. This backward step is further compounded
because the jury was never instructed on the effect of
flight and the uses to which it could be put, nor in fact
does the trial record show that the state relied on flight
to prove the mental element of the crime charged. Third and
finally, the majority have erroneously concluded that proof
of defendant's high speed and illegal passing maneuvers
constitutes proof that he "knowingly" committed the act
charged. This proof establishes defendant's reckless driving
immediately preceding the collision, but it hardly establishes
that he "knowingly" drove his car into the Francisco car.
In summary, these factors do not individually or collectively
supply proof that defendant "knowingly" drove his car into
the Francisco pickup.
The briefs of both parties were woefully inadequate.
Although defense counsel correctly claimed that knowingly
was not proved, he devoted little time or energy to demonstrating
it. He argued on such an abstract basis that he failed to
even refer to the statut~rydefinition of "knowingly" or to
the jury instruction (instruction no. 10) which provided the
four separate theories on which the jury could consider
whether defendant "knowingly" committed the act charged.
The State's brief is no better and is misleading because
it implies that the jury was instructed on only one theory
of "knowingly." This misleading brief clearly convinced the
majorit3 for the definition has been used to uphold the
convjctions. The result is that both parties and this
Court have treated the issue in the most perfunctory manner.
The definition or theory of "knowingly" relied on to
uphold the conviction, provides:
". .. A person acts knowingly. .
.when he is
aware there exists a high probability that
his conduct will cause a result." Section 45-2-101(3).
With this definition as its legal foundation, the majority
then recites the evidence which establishes that defendant
"knowingly" committed the act charged:
During his interview with the investigator
for the County Attorney's office, defendant
admitted that-he had consumed twelve beers,
that he was intoxicated, and that he probably
should not have been driving when the-accident
occurred. He also admitted fleeing the acci-
dent because of fear. Witnesses described
defendant's high rate of speed and illegal
passing maneuvers. These facts support the
jury's determination that defendant knew
there-was a high probability that driving
---
while under the influence of alcohol would
-
cause serious bodily injuryto another.
(Emphasis supplied.)
The emphasized conclusion, based on the evidence recited,
is no less than shocking.
First, the majority relied on the overwhelming evidence
of decedent's intoxication as proof that he acted "knowingly,"
although the law permits a jury to consider whether a defendant's
intoxication negated the existence of the required mental
element to prove the crime.
The proof presented at trial cannot be ignored. The
State offered and the trial court admitted in evidence a
statement given by defendant to an investigator the same
evening of the collision. In stating that "knowingly" was
proved, the majority has relied on three 'statemel~ts
defendant
made to the investigator as to his intoxication: (1) Defendant
s a i d he had consumed some 12 cans of b e e r b e f o r e t h e c o l l i s i o n ;
( 2 ) Defendant s a i d h e was i n t o x i c a t e d a t t h e t i m e of t h e
c o l l i s i o n ; and ( 3 ) Defendant a d m i t t e d he p r o b a b l y s h ~ u l d o t
n
have been d r i v i n g .
I n a d d i t i o n t o t h i s proof of i n t o x i c a t i o n , t h e S t a t e
i n t r o d u c e d t h e r e s u l t s of a blood a l c o h o l t e s t t a k e n a f t e r
t h e c o l l i s i o n which e s t a b l i s h e d d e f e n d a n t ' s b l o o d a l c o h o l
c o u n t t o t h e n be .16 p e r c e n t , w e l l above t h e . 1 0 p e r c e n t
l e g a l r a t e of i n t o x i c a t i o n p r o v i d e d by Montana s t a t u t e ( s e c t i o n
61-8-401 ( 3 ) ( c ), 14CA. ) ( I n f a c t , d e f e n d a n t ' s blood a l c o h o l
c o n t e n t w a s undoubtedly h i g h e r a t t h e t i m e o f t h e c o l l i s i o n
b e c a u s e it i s assumed t h a t t h e human body m e t a b o l i z e s a l c o h o l
a t t h e r a t e of a p p r o x i m a t e l y one ounce of a l c o h o l p e r h o u r . )
I n t h e f a c t u a l s t a t e m e n t t h e m a j o r i t y have r e f e r r e d t o t h e
r e s u l t s of t h e b l o o d a l c o h o l t e s t . Beyond t h i s , t h e d e f e n d a n t
had, b e f o r e h i s a s s a u l t t r i a l , been charged w i t h and had
p l e a d e d g u i l t y t o a c h a r g e o f d r i v i n g w h i l e under t h e i n f l u e n c e
of a l c o h o l . The r e s u l t of d e f e n d a n t ' s p l e a , an a d m i s s i o n
t h a t h e was i n t o x i c a t e d , was a l s o i n t r o d u c e d i n e v i d e n c e .
A l l of t h i s , of c o u r s e , adds up t o overwhelming e v i d e n c e
t h a t d e f e n d a n t was i n t o x i c a t e d when h i s c a r c o l l i d e d w i t h
t h e Francisco pickup. Defendant d i d n o t t a k e t h e w i t n e s s
s t a n d n o r d i d h e by any o t h e r means c o n t e n d t h a t he was n o t
intoxicated. I n f a c t , defendant d i d not argue with t h e f a c t
t h a t h e w a s proved t o b e i n t o x i c a t e d a t t h e t i m e o f t h e
collision. The S t a t e was bound by i t s own proof and d e f e n d a n t
was e n t i t l e d t o t h e b e n e f i t s o f what t h e S t a t e had proved--
namely, t h a t t h e j u r y may c o n s i d e r whether h i s i n t o x i c a t i o n
n e g a t e d h i s c a p a c i t y t o "knowingly" commit t h e a c t c h a r g e d .
I n p r o c e e d i n g on t h e t h e o r y t h a t " i n t o x i c a t i o n " w i l l
p r o v e t h a t d e f e n d a n t "knowingly" committed t h e a c t , t h e
State, the trial court, and the majority have ignored a
statute which does not permit of that conclusion. The 1973
criminal code sets forth a scheme by which mental states are
defined, tests are set forth to determine causation, and
factors are set forth which affect individual liability for
crime. Section 45-2-203, MCA, declares that voluntary
-
intoxication "may" have an effect on a defendant's capacity
to oossess a mental state required as an essential element
of a crime. Section 45-2-203, MCA, provides:
"A person who is in an intoxicated or
drugged condition is criminally responsible
for conduct unless such condition is involun-
tarily produced and deprives him of the capacity
to appreciate the criminality of his conduct
or to conform his conduct to the requirements
,, , , , i a e
,, , , x c t d or -
- drugg
nay- taken into consideration
- be
- --stence - - mental state
the exi of a
element- -of the offense. " (Empha
: -
This statute declares that although voluntary intoxication
is no defense as such to a criminal charge, nonetheless, it
may be considered as proof which tends to negate or which
may negate the existence of the mental state required to
prove the crime. Here, the State was required to prove that
defendant "knowingly" committed the act, and the defendant
had a right to have the jury consider the effects of his
intoxication on his capacity to "knowingly" commit the act
charged. A necessary corollary to this statute is, of
course, that intoxication cannot constitute affirmative
proof that one "knowingly" committed the criminal act charged.
One can act "knowingly" in spite of intoxication but he cannot
11
act 'knowingly because of his intoxication.
Defendant was therefore entitled to the benefit of an
instruction telling the jury that it could consider his
intoxication with relation to the question of whether he had
the capacity to "knowingly" commit the act charged. A
defendant has a right to have the jury consider every theory
or defense supported by the evidence. State v. Thomas (1966),
147 Mont. 325, 413 P.2d 315. The failure to give that
instruction on the effect of voluntary intoxication was
error.
Beyond the failure to give the instruction, however, is
a more serious error. The State's theory that proof of
intoxication proved that defendant "knowingly" committed the
act, was used as a basis for the jury to decide that defendant
had "knowingly" committed the act charged. In effect, the jury
was allowed to find that defendant acted "knowingly" because
- - intoxicated.
he was The State convicted defendant on a theory
that the higher the degree of intoxication proved, the
greater is the likelihood that the defendant "knowingly"
committed the act charged. That is the theory presented to
the jury. Sadly, this inexcusable error went undetected by
defense counsel and by the trial court, and now this Court
has made it the law of this State.
Another factor concerning intoxication deserves comment.
Although it is difficult to isolate the statement entirely,
the majority state that "defendant knew there was a high
probability that driving while under the influence of alcohol
would cause serious bodily injury to another.I8 This statement
has no statistical basis in reality. The chances are greater
that an intoxicated driver will cause an accident, but the
fact of intoxication alone or even combined with reckless
driving in fact, does not establish the probability that an
accident will result. The undeniable and unfortunate fact
is that most drunken and reckless driving goes undetected by
law enforcement officials. If the probability was that
drunken and reckless driving would cause an accident, most
of the innocent driving public would tragically now be
victims of traffic accidents, And hopefully most drunken
and reckless drivers would be prosecuted. Anyone knows that
is not the case, despite the fact that drunk driving takes a
horrendous toll on our highways.
Flight after the collision is the second factor relied
on by the majority as constituting circumstantial evidence
that defendant "knowingly" committed the act charged. That
defendant fled the scene was, of course, proved by the fact
that he was not there when the officers arrived. Later,
after admitting that he was the driver of the car involved,
he told the county investigator that he fled because he was
scared. The majority has translated defendant's flight and
apparently his explanation of why he fled, into proof that
he "knowingly" drove his car into the Francisco pickup.
This reliance on flight is indeed strange. The trial
record fails to reveal that flight was ever considered as
tending to prove anything at all, let alone the fact that
defendant had "knowingly" committed the act charged. The
jury was not instructed on flight as a factor to be considered
in determining the issue of "knowingly," and neither party
mentioned flight in their appellate briefs.
Assuming, furthermore, that flight had some evidentiary
value in proving that defendant knowingly committed the act,
the rule has long been established that if flight is to be
used as evidence, the jury must be instructed on the limits
to which that evidence can be put. See Alberty v. United
States (1395), 162 U.S. 501, 16 S.Ct. 864, 40 L.Ed. 1051;
Hickory v. United States (1895), 160 U.S. 408, 16 S.Ct. 327,
40 L.Ed. 474. In such event defendant is entitled to testify
as to why he fled, and the jury must be instructed to consider
his explanation in determining what weight to give to flight.
Cf. Alberty, supra, at 510 (Alberty holds that flight is
evidence of innocence as much as it is of guilt, and there-
fore the jury must be given the opportunity to weigh the
flight against all of the surrounding circumstances). Here
defendant's statement was introduced in evidence by the State
and in it he told the investigator he fled because he was
scared. In determining the weight to be given flight, the
jury must consider the defendant's explanation of why he fled,
and an instruction on flight must so inform the jury. The
fact that one fled because he was scared does not tend to
prove that he "knowingly" committed the act charged, and
the jury should therefore have considered this in determining
what weight to give to defendant's fleeing the scene of the
accident.
Given this state of the trial record, I am amazed at
the majority's grasping at flight as one of the factors which
proved that defendant "knowingly" committed the act charged.
Nor can I see that defendant's flight tends to prove he
"knowingly" committed the act charged. I am aware of dictum
and unsupported statements in cases to the effect that flight
can be used to show a specific intent with which the act was
committed. But I know of no case directly holding this way.
In fact, that concept has long ago been rejected. In State
v. Foster (1902), 130 N.C. 666, 41 S.E. 284, the North Carolina
Supreme Court stated:
". . . We entirely fail to see how it [flight]
shows or tended to prove deliberation and pre-
meditation on the part of the prisoner, and
that was the only matter the jury had to con-
sider, as it had been admitted that the
prisoner was guilty of murder in the second
degree. "
The Foster case is analogous here. The defendant did
not deny that he caused the accident. Rut he also denied
that 1 r "knowingly" drove his car into t a Francisco
-e le
pickup. Had defendant denied he was the driver, defendant's
flight from the scene would undoubtedly have been admissible
to show that he was the driver, as to show his awareness
that he was at fault. But the evidence of flight was not
admissible to show what state of mind he possessed when he
collided with the Francisco car. His flight could not supply
proof that he "knowingly" drove his car into the Francisco
pickup.
The third and final factor relied on by the majority as
proof that the defendant "knowingly" committed the act, is
the testimony of witnesses that defendant had been speeding
and illegally passing cars just before the collision. This
evidence no doubt shcws that defendant was driving recklessly,
but neither speed nor reckless driving tend to establish
that defendant "knowingly" collided with the Francisco pickup.
In surmary, not a scintilla of evidence shows that
defendant "knowingly" drove his car into the Francisco pickup.
His high speed and illegal passing maneuver just before the
collision does not establish that defendant was aware of his
reckless driving let alone the collision and resulting injuries
were "within his contemplation or purpose." Defendant was
guilty of drunken driving (a charge to which he had already
pleaded guilty) and he was guilty of reckless driving. If a
statute were in effect making one guilty of a serious crime
if he recklessly - drunkenly caused an accident which
or
injured other people, he would undoubtedly be guilty of that
offense. But no such statute exists in Montana. Instead,
the prosecutors, the trial court, and now this Court, have
tortured the law beyond recognition in holding that defendant
"knowingly" caused "serious bodily injury."
PART V. A REVERSAL IS REQUIRED BECAUSE OF AN INABILITY TO
DETERMINE THEORY OF "KNOWINGLY" APPLIED BY THE JURY IN DETERMINING
GUILT.
The majority opinion rests on an implied and erroneous
assumption that only one definition or theory of the essential
element "knowingly" was given to the jury. In fact, instruction
no. 10 gave the jury four alternative definitions or theories
which it could have applied in reaching its verdict. It is
impossible to determine from the record which theory of
"knowingly" the jury used in reaching its verdict. Assuminq
therefore, that the majority definition of "knowingly" was
supported by substantial evidence, because there is no way
of telling whether the jury applied that definition, it still
cannot be determined whether the jury reached a correct
verdict. The inability of an appellate court to make this
determination requires a reversal.
To properly focus on the issue I must analyze the
charges filed, the evidence produced at trial, and the jury
instructions.
As I stated in part I11 of this dissent, the assault
statutes require the State to prove that the act was "purposely
or knowingly" committed. However, the State deleted the
term "purposely" and charged only that defendant "knowingly"
co~mittedthe assaults charged.
In charging aggravated assault in count I and in count
I1 (count I1 is not directly pertinent here because the jury
found defendant not guilty of that charge), the State expressly
relied on two of the four definitions of "knowingly" contained
in section 45-2-101 (33), MCA. The State charged that:
". . . the defendant was aware of his conduct
or that the circumstances existed that it was
-
highly probable that as a result of his driving
a vehicle in a highly intoxicated and reckless
manner, that he would cause serious bodily injury
to another person as a result of his conduct."
(Emphasis added.)
The entire statute is quoted in full in part I11 of this
dissent, and the jury instruction with all four statutory
definitions, is quoted in full in this part of the dissent.
I emphasize, however, that the charges were not read to the
jury .
The State presented its case and proved that defendant
had been driving while intoxicated, that his driving was
reckless, and that he caused the collision between his car
and the Francisco pickup. The State proved in effect that
as a result of defendant's reckless driving, no doubt influenced
by his intoxication, that he collided with the rear of the
Francisco pickup, which collision caused both vehicles to
spin off the highway. All occupants of the Francisco pickup
were injured.
Defendant did not testify and presented no evidence in
his behalf. After defendant rested his case the court
instructed the jury on the law to apply, and in giving
instruction no. 10, told the jury that it could apply one of
four definitions of "knowingly." Instruction no. 10 stated:
"A person acts knowingly:
"(1) when he is aware of his conduct, -
or
" (2j when he is aware, under the circumstances,
that his conduct constitutes a crime, -or
"(3) When he is aware there exists a -
--- - high
probability -- conduct will cause a
that his -
result, -
or
"(4) with respect to a specific fact, when he
is aware of a high probability of that fact's
existence." (Emphasis added.) The emphasized
definition is the only one mentioned in the
majority opinion.)
To convict defendant of count I (and count I1 for that
matter) aggravated assault, the jury had to determine that
he "knowingly . . . caused" the injuries in one of the four
ways stated in instruction no. 10. The record, however,
fails to reveal which definition or theory of "knowingly"
the jury applied in reaching its verdict. Inexplicably, the
majority has seized on the third definition or theory in
determining that the verdict should be affirmed. Only a
court with clairvoyant powers could determine that the jury
used the third definition, and I have never considered that
facility to be one of the powers with which this Court is
blessed.
Unfortunately, a reading of the majority opinion leaves
one with the distinct impression that only one definition of
"knowingly" was given to the jury, an impression which flies
in the face of instruction 10.
By ignoring instruction 10 the majority was able to
avoid an application of the law which would have required a
harmless error analysis before reaching a conclusion as to
whether the verdict should be affirmed. Eefore affirming
the majority would have had to conclude by an analysis of
the record that the jury beyond a reasonable doubt relied on
the third definition of knowingly. Or, alternatively, if
the majority could not make that declaration, the majority
would have been required to declare that each of the remaining
three definitions of "knowingly" were properly given and
that each was supported by substantial evidence. A conscientious
appellate court could not adopt either alternative.
A fundamental rule of appellate procedure applies to
this case. It is a rule designed to assure the reliability
and integrity of the trial and review process. This Court
has ignored the rule here as well as in other cases where
the result was the objective. In a dissent to State v.
Price (1980), Mont. , 622 P.2d 160, at 170, 37 StRep. 1926. I
stated this rule as follows:
"The rule I refer to is a simple one: a judg-
ment must be set aside where it is supportable
on one ground but not another, if it is impos-
sible to determine which ground was used in
reaching the decision. This rule applies to
jury-tried cases and to judge-tried cases. It
is basic, hornbook law."
In the --Price dissent, I cited abundant authority for my
position, including decisions of tke United States Supreme
Court, decisions of this Court, and the fundamental rule as
set forth in Am.Jur.2df and C.J.S. (See Price, 522 P.2d 170-
171.) No need exists to again restate this law. I further
discussed application of these rules in three more dissents
where the majority in its rush to reach a desired result,
ignored even the existence of the problem which would require
application of the rule. See Coleman v. State (1981),
Mont . , 633 P.2d 62A, 38 St.wp.1352; ritz~atrickv. State
(1951), 1/10 t
n . , 629p.2d ln02, -
33 S+Ren. 1?49, and
finally, McKenzie v. State (1981), !In .
,o t , 608 P.2d
428, 37 St.Rep. 325. I can again only state that I am
amazed that this Court can continue to ignore this fundamental
rule of appellate review. Perhaps only a federal court can
jolt us back to assuming our responsibility.
An analysis, keeping this fundamental rule of review in
mind, must begin with the statement that it is impossible to
determine which of the four theories of "knowingly" the jury
applied in reaching its verdict. The jury returned only a
general verdict finding defendant guilty of count I, aggravated
assault. Nowhere in the record can it be determined which
theory the jury applied. An affirmance, under this state of
the record, would be permissible only if it was determined
first that all four theories were properly given as instructions,
and second, that each of these four theories was supported
by substantial evidence. As I shall demonstrate, that is
not the case.
Because it is impossible to determine which theory of
"knowingly" the jury applied, my analysis would be sufficient
merely to show either that at least one theory of "knowingly"
was improperly given to the jury as an instruction, or to
show that at least one theory of "knowingly" was not supported
by substantial evidence. If either or both of these two
conditions exist, a reversal would he required. The fact
is, however, that none of these theories of "knowingly" was
properly given in this case, and none of these theories is
supported by substantial evidence. This being the case the
disposition required is not merely ordering a new trial.
Rather, the conviction must be reversed and the case ordered
dismissed.
I further emphasize that regardless of -t~l?ich
theory of
"knowingly" was used, it was required that the jury be instructed
that the result must have been "within the contemplation or
purpose" of the defendant. (See Part IIIR of this dissent.)
The jury was not so instructed.
I proceed next with a discussion of each theory of
"knowingly" given to the jury in instruction 10.
(1) "A person acts knowingly
- . . . when he is aware
----
of - conduct."
- his
The first theory of "knowingly" given the jury in
instruction 10, was that "a person acts knowingly
- . . .
when he is aware of his conduct."
------ The jury was given no
information on what conduct this instruction referred to.
Aware of what conduct? Aware that he was drinking earlier
i n t h e day and had consumed some 1 2 c a n s of b e e r ? Aware t h a t
he had d r i v e n o f f i n h i s c a r knowing t h a t he was i n t o x i c a t e d ?
Aware t h a t he was d r i v i n g i n a r e c k l e s s manner, t h a t i s ,
s p e e d i n g and making i l l e g a l p a s s i n g maneuvers? Without e v e r
a t t e m p t i n g t o set f o r t h t h e conduct of which d e f e n d a n t
s h o u l d have been aware, t h i s i n s t r u c t i o n was c l e a r l y improper
a s a t t e m p t i n g t o d e f i n e "knowingly," an e s s e n t i a l e l e m e n t of
t h e crime o f a g g r a v a t e d a s s a u l t .
The i n s t r u c t i o n f a i l s t o f o c u s on any 2 r o h i b i t e d c o n d u c t
of which d e f e n d a n t was charged w i t h b e i n g aware. Instead,
t h e j u r y was f r e e t o s p e c u l a t e on t h e conduct of ~,?hicli
d e f e n d a n t s h o u l d have been aware. The i n s t r u c t i o n , a s
g i v e n , was no more t h a n an open-ended invitation t o the
j u r y t o g u e s s and a r b i t r a r i l y d e c i d e and choose what a c t o r
a c t s d e f e n d a n t s h o u l d have been aware o f .
And, b e c a u s e t h e i n s t r u c t i o n f a i l s t o f o c u s on any a c t o r
a c t s of which d e f e n d a n t s h o u l d have been aware, an a p p e l l a t e
c o u r t h a s no s t a n d a r d by which it can d e t e r m i n e t h a t a
v e r d i c t based on t h i s t h e o r y i s s u p p o r t e d by s u b s t a n t i a l
evidence. A r e v e r s a l i s r e q u i r e d b e c a u s e even assuming t h e
i n s t r u c t i o n t o be a p r o p e r t h e o r y , i t f a i l e d t o f o c u s on any
a c t o r a c t s o f which d e f e n d a n t w a s c h a r g e d w i t h b e i n g aware.
I t l e f t t h e j u r y f r e e t o s p e c u l a t e , and f u r t h e r l e f t t h e
a p p e l l a t e c o u r t i n a p o s i t i o n of n o t b e i n g a b l e t o d e t e r m i n e
whether t h e t h e o r y was s u p p o r t e d by s u b s t a n t i a l e v i d e n c e . The
a i 3 p e l l a t e c o u r t had no a c t o r a c t s t o f o c u s on i n r e v i e w i n g
t h e evidence.
The f i r s t d e f i n i t i o n a l o n e , t h e r e f o r e , r e q u i r e s a
reversal.
(2) -
"A person acts knowingly . . . when he is aware,
under the circumstances, - - conduct constitutes -
that his a
crime. "
The second definition or theory of "knowingly" was that
-
"a person acts knowingly . . . when he is aware, under
--- the
circumstances, - - conduct constitutes - crime."
that his a Like
the first theory, the jury was given no information as to
what conduct or what crime defendant was supposed to be
aware of. Aware of what conduct? Aware of what crime?
Does it relate to all of defendant's conduct that day, or
just to specified parts of his conduct? Does it relate to
the crime of driving under the influence of alcohol? Does
it relate to the crime of speeding? Does it relate to the
crime of reckless driving? Or does it refer to the act of
recklessly driving into the Francisco pickup--that is, was
he charged with being aware that his conduct of recklessly
driving into the Francisco pickup also constituted the crime
of aggravated assault? Without ever attempting to set forth
the conduct of which he should have been aware, or the crime
of which he should have been aware, this instruction was clearly
improper as attempting to define "knowingly," an essential
element of the crime of aggravated assault.
This definition or theory of "knowingly," without more,
failed to focus on any of defendant's conduct of which he
should have been aware, or on any crime of which he was
charged with being aware that he was committing. Recause it
fails to set forth any standards fcr guidance of the jury,
it left the jury free to guess. And an appellate court is
placed in no better position than the jury. Without specifying
the conduct, or without specifying the crime or crimes, the
instruction gives an appellate court no standard by which
it can review the evidence to determine its sufficiency.
The second theory of "knowingly" defined in instruction
10, is error and a reversal is required on this ground also.
(3) "A 2erson acts knowingly
- . . . when
-
- - - aware
he is
there exists - -
a high probability - - conduct will cause
that his --
a result. "
- - -
The third theory of "knowingly" defined in instruction
-
10, was that "a person acts knowingly . . . when he is aware
----
there exists - -
a high probability - - conduct will cause
that his
- result."
a Like the first and second theories, this instruction
fails to focus on the particular conduct which would have
caused the defendant to believe there existed a high probability
that it would cause a result. What conduct does this instruction
refer to? Defendant's conduct of drinking 12 cans of beer
in the bar? Defendant's conduct in getting into his car and
driving off after he had consumed that much alcohol? Defendant's
conduct while driving: high speed and illegal passing maneuvers?
At what point was defendant charged with being aware that
his conduct would cause a result? At what point was defendant
charged with being aware of a high probability that his
conduct would cause an accident? Again, this instruction
fails to focus on a meaningful time frame or a meaningful
event which would trigger a determination of whether he was
aware of a high probability that his specific conduct within
a specific time frame would cause a particular result.
Like the first two instructions defining "knowingly,"
the instruction failed to give any guidance to the jury and
left the jury free to speculate and pick and c!ioose the
time frame and the conduct involved. And if the jury applied
this theory in finding the defendant guilty, an appellate court
is In no better position to review the sufficiency of the
evidence.
Because the majority arbitrarily chose the third
definition as a basis on which to affirm the count I, aggravated
assault conviction, I have devoted Part IV of this dissent,
supra, to a refutation of the so-called evidence which proved
that defendant "knowingly" committed the act charged. Zvidence
of intoxication, evidence of flight, and evidence of high speed.
and illegal passing maneuvers, falls far wide and far short
of supplying proof that defendant "knowingly" drove his car into
the Francisco pickup.
acts knowingly with respect
specific fact when he is aware of a high probability -
of
that fact's existence."
The fourth and last theory of "knowingly" defined in
-
instruction 10, was that "a person acts knowingly with
respect - - specific - when - - -- - -
to a fact, - he is aware of a high
probability - -
of that fact's existence." Again, this definition
fails to focus on any fact of which defendant was charged
with being aware that a fact existed. The jury was therefore
free to speculate and choose any fact that it believed
defendant should have been aware of a high probability of
its existence. It was neither charged nor proved that
defendant acted knowingly with respect to any specific fact
which would invoke this theory of "knowingly."
The instruction was error because of its omission to
focus on a particular fact so that the jury could determine
first whether the fact existed, and second, whether defendant
was aware of a high probability that the fact did exist.
gain, appellate review is impossible because the instruction
gives an appellate court no standard by which it can review
the sufficiency of the evidence. This requires speculation
just like it required speculation on the jury's part. The
giving of this instruction therefore, also requires a
reversal.
- summarize:
To I have shown that all four theories of
"knowingly" defined by instruction 10, were erroneous. They
were simply insufficient as jury instructions and they
provide no basis for an appellate court to review whatever a
jury may have decided. But even if we assume that the third
instruction (the one arbitrarily used by the majority) was
proper and that substantial evidence supports that theory,
the inability to determine which theory the jury used in
reaching its verdict, would still require a reversal. The
proper disposition of this case is t~ reverse and dismiss--
"knowingly" was not properly charged, it was not properly
defined for the jury, and it was not proved.
PART VI. FAILURE TO GIVE LESSER-INCLUDED ASSAULT
INSTRUCTION IS REVERSIBLE ERROR.
The count I aggravated assault conviction must also
be reversed because of the failure of the trial court to
give an instruction on misdemeanor assault as a lesser-
included crime. This procedure was used for count I1 and
the jury acquitted defendant of the felony and convicted
only on the misdemeanor. It is probable that had the trial
court given an instruction for count I, the jury also would
have acquitted on the felony and convicted only on the
misdemeanor. If so, defendant would not now be in prison
serving a 20 year prison sentence.
Although defense counsel did not request such an instruction,
nonetheless the trial court has a sua sponte duty to instruct
on a lesser-included offense where the evidence will rationally
permit a conviction of a lesser offense. People v. Hood
(1969), 1 Cal.3d 444, 32 Cal.Rptr. 618, 462 P.2d 370; People
v. Plorrison (19G4), 228 Cal.App.2d 737, 39 Cal.Rptr. 574.
The failure to instruct falls clearly within the right,
indeed, the duty of this Court to invoke the clear error
doctrine and reverse the conviction.
This Court has long recognized the fundamental rule
that a defendant is entitled to a lesser-included offense
instruction if the evidence would enable the jury to rationally
find him guilty of the lower offense. State v. Bouslaugh
(1978), 176 Mont. 78, 80-31., 576 P.2d 261, 263 (an assault
case). In Bouslaugh, this Court cited and quoted State v.
Thomas (1966), 147 Mont. 325, 413 P.2d 315, for the "fundamental
rule that the court's instructions should cover every issue
or theory having support in the evidence." 576 P . 2 d at 262.
Also see State v. Kyle (1980), - Hent . - 628 P.2d 260,
,
In Keeble v. U.S. (1973), 412 U.S. 205, 208, 93 S.Ct.
1993, 1995, 36 L.Ed.2d 844, 847, (cited in Bouslaugh,
supra) the United States Supreme Court recognized that the
rule originated as being a prosecution tool but later
developed to be a rule which a defendant had a right to
invoke. In fact, the Court recognized that a lesser-included
offense instruction may be constitutionally required, although
not expressly so ruling. The policy consideration behind a
lesser-included offense instruction is:
"Where one of the elements of the offense charged
remains in doubt, but the defendant is plainly
guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction."
412 U.S. at 212, 213.
The Court further stated that any construction of law
prohibiting the giving of a lesser-included offense instruction
would present serious constitutional questions under the Due
Process Clause. The Court made this broad declaration even
though it recognized that it had never expressly held the
right to a lesser-included offense instruction is protected
by the Due Process Clause. 412 U.S. at 213. I interpret
Keeble to at least mean that all courts are best advised to
give a lesser-included offense instruction in every case where
the evidence will rationally permit of the instruction.
In addition, Keeble and later cases have established
that the right to a lesser-included offense instruction is
mandatory where two circumstances exist: (1) if evidence
would permit a jury to find defendant guilty of the lesser-
included offense and acquit him of the greater (Keeble, 412
U.S. at 208); and (2) where some elements of the crime charged
themselves constitute a lesser crime. Sansone v. United
States (1965), 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed. 2d 332;
Berra v. United States (1956), 351 U.S. 131, 76 S.Ct. 685,
100 L.Ed. 1013. And see Stevenson v. United States (1896),
162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. '9.80, where, 36 years
ago, the Supreme Court held that: a trial court has no Dower
to refuse to give a lesser included offense instruction where
there is - evidence that might raise an issue as to whether
any
any lesser crime was committed. The court further held that
whether a lesser crime exists is always a question of fact
for the jury.
All of this law of course establishes that the failure to
give a lesser-included offense instruction cannot be lightly
brushed aside. An instruction was clearly required here.
Count I charged defendant with "knowingly" assaulting
Jeri Lyn Francisco (an occupant of the nickup) and causing
"serious" bodily injury to her. The term "serious bodily
injury" is defined by section 45-2-101(59), FICA. This
definition was given to the jury as instruction 6, which
stated:
". . . Serious bodily injury means bodily injury
which created substantial risk of death or which
causes serious permanent disfigurement or protracted
loss or impairment of function or process of any
bodily member or organ inducing serious mental
impairment." Instruction 6.
The girl named in count I as the victim, had emergency
surgery to remove broken skull fragments and to stop the
bleeding of lacerated brain tissue. No doubt the jury could
have determined that she sustained "serious bodily injury"
as defined by statute and instruction 6, but the jury was
not required to do so. Rather, it was within the province
of the jury to instead find that she sustained "bodily
injury" as defined by section 45-2-101 ( 5 ) , F'LCA.
Implicit in the right to a jury trial in a criminal
case is the right of the defendant to have the jury make the
factual determination on each essential element of the crime
involved. It therefore was the right of the jury to reject
"serious" bodily injury and to find instead that the girl
sustained "bodily" injury. Bodily injury, is by its nature,
included within the term "serious" bodily injury. It is a
misdemeanor for one to purposely or knowingly cause bodily
injury to another.
The misdemeanor assault statute (section 45-5-201, YCA) has
four definitions or theories by which an assault can be
committed. Subsection (a), the applicable subsection here,
provides that a person commits assault if he "purposely or
knowingly causes bodily injury to another." (~mphasis
added.) The term "bodily injury" is defined by section 45-
2-101 ( 5 ), ? C A I as "physical pain, illness, or any impairmellt of
physical condition and includes mental illness or impairment."
Without question Jeri Lyn Francisco sustained physical pain
and had some impairment of physical condition. The only
difference between felony assault as charged and misdemeanor
assault under subsection (a), is that for a felony the
injury must be "serious," while for the misdemeanor it is
sufficient that it be "bodily injury." Obviously any "serious"
bodily injury sustained by the victim necessarily includes
the lesser element of "bodily injury" defined as "physical
pain . . . or impairment of physical condition." It therefore
was a jury question to determine the degree of injury sustained.
The jury was not given the choice because it was not given a
lesser-included assault instruction. This is reversible
error. Bouslaugh, supra.
The prejudice is manifest. The jury had a choice for
count I1 and decided only that defendant was guilty of
the misdemeanor. If the jury had the same option here the
probability is that it would also have convicted defendant
only of the misdemeanor. Assuming that defendant was con-
victed of two misdemeanors, and further assuming that one
sentence was made to run consecutively to the other, the
most time he could serve would be one year in the county
jail. Section 45-5-201, supra. However, the aggravated
assault conviction has resulted in defendant being sentenced
to the maximum term in prison--20 years. In addition, the
trial court (illegally, as I explain in ?art IX) sentenced
defendant to the maximum six months for the misdemeanor and
ordered that it run consecutively to the 20 year sentence
for aggravated assault.
Part VII. Inconsistent Verdicts:
PART VII. THE GUILTY VERDICT ON COUNT I AGGRAVATED ASSAULT
FLIES IN THE FACE OF THE NOT GUILTY VERDICT ON COUNT I1
AGGRAVATED ASSAULT.
In holding that the verdicts are not inconsistent, the
majority have totally ignored the effect of the count I1
aggravated assault verdict of not guilty. The guilty verdict
to count I flies in the face of the not guilty verdict to
count 11.
The count I and count I1 charges arose from one act and
one mental state which accompanied that act. While drunk
driving on the highway, defendant recklessly collided with
the Francisco car, causing injuries to five people. Defendant
could not act "knowingly" with regard to the named victim in
count I without also acting "knowingly" with regard to the
named victims in count 11. Conversely, if defendant did not
act "knowingly" with regard to the named victims in count I1
he also did not act "knowingly" with regard to the named
victim in count I. That is the situation here: the guilty
verdict to count I aggravated assault is totally inconsistent
with the not guilty verdict to count I1 aggravated assault.
The count I conviction must be reversed; it is both illogical
and unfair to let it stand.
But for the vital fact that the jury acquitted defendant
on count I1 aggravated assault, I could agree in principle
with the majority result. If one acts knowingly, he also
acts negligently, the majority concludes, and therefore it
is not inconsistent for a jury to decide in count I that a
defendant acted "knowingly" and that in count 11 that defendant
acted "negligently." But I do not agree with the majority
reasoning. It is inconsistent for a defendant to simultaneously
have two mental states. However, a statute requires, and I
see no constitutional impediments, that if a lower mental
state is alleged, and a higher mental state is proved, one
cannot avoid criminal responsibility because of this tech-
nicality. Section 45-2-102, MCA, provides:
"When the law provides that negligence suffices
esta;h
element
sh an element of an offense, such
stablished if a person acts purposely
or knowingly. When acting-knowingly suffices
-
to establish an element, such element also is
established if a person acts purposely." (Emphasis
added. )
The essence of this statute is to declare as a matter of law
that if one is proved to have acted "knowingly," he cannot
avoid a conviction where the required mental state is only
that he acted "negligently."
Eut the result reached by the majority, and approved by
the directive of section 45-2-102, MCA, can only be reached
if the only charge in count I1 was that defendant acted
"negligently." If that were so, the fact that defendant was
proved to have acted "knowingly" with respect to count I
would also constitute proof that he acted "negligently" with
respect to count 11. The undeniable fact is, however, that
defendant was charged in count I1 with "knowingly" committing
the assault, and the jury acquitted him of this charge
before it found him guilty of the lesser-included misdemeanor
offense which required only that the State prove he acted
"negligently." It was inconsistent for the jury to conclude
that defendant did not act "knowingly" with respect to count
11, but that he did act "knowingly" with respect to count I.
Instruction no. 9 set forth the elements of the count
I1 aggravated assault charge which the State was required
to grove: First, that defendant acted knowingly; second,
that he caused bodily injury; and third, that he used a weapon.
The instruction further told the jury what its duties were
in relation to this charge:
". . . If you find from your consideration of
all of the evidence that each of these propositions
has been proved beyond a reasonable doubt, then
you should find the defendant guilty.
"If, on the other hand, you find from your con-
sideration of all the evidence that any of these
propositions has not been proved beyond a reason-
able doubt, then you should find the defendant
not guilty."
T must assume that the jury followed this instruction
because it is assumed that the juries do follow the instructions.
This being so, it is clear that the jury first considered
the count I1 aggravated assault charge, determined that
defendant was not guilty, and then the jury determine whether
defendant was guilty of negligent assault with a weapon.
What is most important, however, in the jury finding defendant
not guilty of the count I1 aggravated assault charge, is that
the jury must have decided that he did - "knowingly" commit
not
the act charged. This is so because the remaining elements
for count I1 assault and the lesser-included misdemeanor
assault charge, are the same: the jury was required to find
for each offense that defendant caused bodily injury with a
--
weapon.
In finding defendant guilty of count I1 misdemeanor
negligent assault, the jury obviously found that defendant
caused bodily injury and that he - - a weapon.
used In fact,
only one instruction defined "bodily injury" and "weapon"
for the jury, and this instruction (no. 7) was used to define
these elements for both the felony charge and the misdemeanor
charge. Logic would therefore dictate bhat the jury rejected
the essential element of the count I1 felony charge that
defendant "knowingly" omitted the act charged. Instead, the
jury found that he "negligently" committed the act charged
and so convicted him of the misdemeanor.
The majority decision, as I have stated, is based on
the omission of the vital fact that the jury with relation
to count 11, found defendant not guilty of possessing a
P
"knowingly" state of mind. That conclusion is inescapable.
Defendant was charged in count I1 with "knowingly"
committing an aggravated assault on the other occupants of
the Francisco car. But the jury was also instructed on
negligent assault as constituting a lesser-included offense.
The jury convicted defendant of the misdemeanor. Conviction
of this lower crime requires an assumption, based on the
double jeopardy clause of the United States Constitution,
that the jury acquitted defendant of the higher aggravated
assault charge. Green v. United States (1952, 355 U.S. 184,
78 S.Ct. 221, 2 L.Ed.2d 199. See also 22 C.J.S. Criminal
- ยง 284. Under Green a further prosecution on the aggravated
Law
assault charge would be barred.
Beyond the result required by the united States Con-
stitution, however, it appears that the jury -in - found
fact
defendant not guilty of the count I1 aggravated assault
charge. This conclusion is supported by an analysis of the
record. Unfortunately, the District Court record before this
Court on the appeal did not even contain a verdict form which
aggravated assault charge--although it did contain a guilty
verdict form which the jury did not sign. Although this
seems to be highly unusual, I must conclude that the trial
court assumed that a conviction of negligent assault would
stand as an implied acquittal of the higher aggravated
assault charge. This conclusion is further supported by
the jury instruction setting forth the elements of the
aggravated assault charge and informing the jury of what its
duties were in reaching a guilty or not guilty verdict.
Based on this record, I have no difficulty in con-
cluding that the jury rejected the count I1 allegation
that the defendant "knowingly" drove his car into the
Francisco car. The count I conviction therefore, is
unquestionably inconsistent with the count I1 acquittal.
A defendant cannot act knowingly and not knowingly at the
same time while undertaking the same act. The inconsistency
between the guilty verdict and not guilty verdict cannot
be reactionally explained, a manifest injustice appears on
the face of the record, and justice requires that the count
I aggravated a,ssault conviction be reversed for failure of
the State to prove that the defendant "knowingly" committed
the act charged.
Unfortunately, the majority has ignored a clear mandate
to reverse the count I aggravated assault acquittal--which
acquittal necessarily determined that defendant did not
knowingly commit the act charged. But ignoring an essential
fact does not change the mandate to reverse. Some court
will reverse, although it may not be this Court.
PART VIII. ASSAULT WITH A WEAPON WAS MOT PROVED.
--
Defense counsel raised no issue in the trial court or
in this Court as to whether it was proper, under the facts of
the case, to charge in count I1 that defendant committed assault
"with a weapon."
-- Instead, defense counsel proceeded on the
erroneous assumption that an automobile is, under all circum-
stances, a weapon. It appears, however, that defense counsel
was at least aware that the jury should have the option of
finding that defendant negligently used a weapon rather than
intentionally used a weapon. At the conclusion of the trial,
defense counsel offered and the trial court gave an instruction
(no. 5), which permitted the jury to find only that defendant
committed negligent assault "with a weapon." Fortunately for
defendant, the jury found him guilty only of negligent assault.
I say fortunately because if he had been convicted of count I1
felony assault, the trial court would undoubtedly have sentenced
him to the maximum 20 years in prison and made it run consecutive
to the 20 year sentence imposed for the count I conviction of
felony assault.
At the hearing of this appeal, at least two members of
this Coilr-twere concerned as to whether the State had proved
that defendant had, by his reckless driving which caused the
accident, - - a weapon.
used Defense counsel responded that he
proceeded with the case on the assumption that defendant's
automobile was a weapon without regard to its intended use.
The "with a weapon" requirement is an essential and the
vital element of one felony assault nrovision (section 45-5-
202(b)) and of one misdemeanor assault provision (section
45-5-201(b)). This essential element requires discussion
because the State has clearly misused these assault provisions
in this case and because the State will now undoubtedly continue
to use these provisions by charging assault in automobile
accident cases involving reckless driving and bodily
injuries to innocent users of the highway. Under the plain
error doctrine we have an obligation to the defendant and to
the legal system to discuss and decide the "with a weapon"
issue. The issue is too important to ignore, as the majority
has chosen to do.
Even though the jury acquitted defendant of the count I1
felony assault with a weapon charge, the propriety of the
charge must be discussed. The implications of the majority
opinion are that it has given the green light to the State to
charge assault with a weapon whenever the reckless driving
of a person causes bodily injury to other users of the l~ighoray.
The State must be aware that if it persists in so misusing
the assault statutes, it is on more than thin ice.
I summarize my position as follo~vs. Use of a weapon is
an essential and the most important element under both the
felony assault provision and the misdemeanor provision involved
here. In a felony charge it must be proved that defendant
"purposely or knowingly" (although the State now uses only the
term "knowingly") used a weapon. In a misdemeanor charge, the
State must prove that defendant negligently used a weapon.
In either case the State must first prove that defendant was
aware he was possessing a weapon. Under the charges here the
State was required to ?rove that defendant was aware the auto-
mobile he was driving was a weapon. Absent proof of this
awareness, the State cannot prove that defendant used his
automobile as a weapon. That is precisely the situation here.
The State could not and did not prove that defendant used
his automobile as a weapon.
I divide this part of my dissent into several parts. A:
-
The procedural context of the case--the count I1 assault
charges, the instructions given, and the proof required. -:
5
The "with a weapon" requirement as an aggravating factor
under the felony assault statute and as the sole element
which makes negligent assault a crime. C:
- The definition
of "weapon" and the requirement that the item involved be
put to a specific use. D:
- Use of an automobile in a misdemeanor
charge of negligent assault "with a weapon."
--
A. THE PROCEDURAL CONTEXT OF THE CASE: THE COUNT I1 CHARGES
AND THE JURY INSTRUCTIONS GIVEN FOR EACH COUNT:
I first emphasize that I proceed on the assumption that
the State had correctly charged the mental state to be proved.
In part IIIA of this dissent, I have stated why the State
was required to allege the mental state of "purposely or
knowingly" rather than merely "knowingly."
To prove defendant guilty of count I1 aggravated assault,
the State was required to prove (1) that defendant knowingly
caused bodily injury to the four persons named in count 11;
and (2) that defendant knowingly used a weapon. Section
45-2-103(2), discussed in part IIIB, supra, states that where
a statute does not specify which element the mental state
applies to, the State must prove the required mental state
as to each element. The assault statute, section 45-5-
202 (b), 'MCA, does not so specify,,and therefore the State
was required to prove knowingly as to both bodily injury and
as to use of a weapon.
Because section 45-2-l03(2), I I A also applies to the
vC,
charge of misdemeanor assault, the State was required to prove
(1) that defendant negligently caused bodily injury to the
four persons named in count 11, - (2) that defendant negligently
and
- - a weapon.
used
The trial court failed to instruct the jury on the
application of section 45-2-103(2), MCA. On the count I1
felony charge the court failed to instruct the jury that the
mental state "knowingly" must be proved as to both essential
elements. And o l the lesser-included offense of misdemeanor
i
assault, the court failed to instruct the jury that the mental
state "negligently" must be proved as to both essential
elements. Assuming no other error in this case, this error
alone would require a new trial on the misdemeanor assault
charge. A new trial could not, of course, be ord-ered on the
count I1 aggravated assault charge because the jury acquitted
defendant of that charge.
The trial court gave the jury two instructions on count
I1 aggravated assault "with a weapon." Instruction 7 defined
the offense and defined the essential elements. It stated:
"As to Count 11, a person commits the offense
of aggravated assault if he knowingly causes
bodily injury to another with a weapon.
"Bodily injury means physical pain, illness, or
impairment of physical condition.
"A weapon means any instrument, article or
substance which regardless of its primary
function, is readily capable of being used to
produce death or serious bodily injury."
Instruction 7.
The definition of bodily injury was that as defined in
section 45-2-101(5), MCA, and the definition of weapon was
that as defined in section 45-2-101(71), MCA.
The court set forth the essential elements of the crime
in instruction 9:
"To sustain the charge of Count 11: Aggravated
Assault, the state must prove the following
propositions:
"First: That the defendant acted knowingly,
"Second: That the defendant's conduct was the
cause of bodily injury to Rochelle Francisco,
Shirley Francisco, Kevin Schmidt and Erenda Schmidt,
"Third: That the defendant - - a weapon.
used
"If you find from your consideration of all
the evidence that each of these propositions
has been proved beyond a reasonable doubt, then
you sh~uldfind the defendant guilty.
"If, on the other hand, you find from your con-
sideration of all the evidence that any of these
propositions has not been proved beyond a reasonable
doubt, then you should find the defendant not
guilty." (Emphasis added.)
Only one instruction was given on the lesser-included
charge of negligent assault "with a weapon." Instruction 5
stated:
"You are instructed that the offense of aggravated
assault also includes the offense of assault.
"A person commits the offense of assault if he
negligently causes bodily injury to another
with a weapon." (Emphasis added.)
--
The jury, in convicting defendant of negligent assault,
apparently looked to instruction 7 for the definitions of
"bodily injury" and of "weapon."
As I have explained in part VII of this dissent, the
jury, in acquitting defendant of the count I1 felony charge,
found that he did not act knowingly. But the question in
the lesser-included misdemeanor charge was not simply whether
he negligently caused bodily injury to the people named in
count I1 as victims. The question was also whether he
negligently used a weapon to inflict those injuries.
That defendant negligently acted as that term is defined
in section 45-2-lQl(37) and defined for the jury in instruction
12, cannot be doubted. His drunken and reckless driving
(speeding and illegal passing maneuvers) was ". . . a gross
deviation from the standard of conduct that a reasonable nerson
would observe in the actor's [defendant's] position .. ."
And it is equally true that defendant's negligent act caused
the collision which resulted in "bodily injury" to the
occupants of the pickup. Instruction 7 (section 45-2-101
(5) defined bodily injury as "physical pain, illness, or
impairment of physical condition." The injuries to these
people, described in the majority opinion, proved that each
had sustained "bodily injury." But it was not enough for
the State to prove that defendant negligently caused a result--
the bodily injuries to these four people. The State was also
required to prove, but did not prove, that defendant negligently
used a weapon--that is, that defendant negligently used his
autonobile as a weapon. It is certainly true that defendant
negligently drove his automobile;-buthe did not negligently
use his automobile as a weapon.
The statute defining "weapon" is important--it does not
declare an automobile or anything else to be a "weapon" as
a matter of law. Rather, each item allegedly used as a weapon,
must be considered under the circumstances of each case before
a decision can be made that it was a weapon. Whether an item
is a weapon depends, of course, on how it is used. Here the
State could not prove that defendant negligently used his
automobile as a weapon unless it could first prove that defendant
was aware he had converted his automobile from its primary use
as a means of transportation to an illegal use as a weapon.
That evidence does not exist.
B. THE ESSENTIAL ELEMENT OF "WITH A WEAPON" AS AN AGGRAVATING
FACTOR UNDER THE FELONY ASSAULT STATUTE, AND AS THE SOLE FACTOR
WHICH IUKES NEGLIGENT ASSAULT A CRIME:
Under the felony assault provision, section 45-5-202(b)
makes use of a weapon the aggravating factor--that is, the
factor which makes the crime more serious than it would be if
no weapon was used. If one "purposely or knowingly caused
bodily injury to another with a weapon" he can be sentenced to
a maximum of 20 years in prison. But if one "purposely or
knowingly causes bodily injury to another" without a weapon,
it is only a misdemeanor subject to a maximum jail sentence
of 6 months. Section 45-5-501(a), MCA.
Use of a weapon is also vital to one provision of the
misdemeanor assault statute. Section 45-5-2Ol(b) provides
khat one is guilty of assault if he "negligently causes hodily
injury to another with a weapon."
-- (Emphasis added.) On the
other hand, if no weapon is used it is not a crime for one
to negligently cause bodily injury to another.
Whether the charge be felony assault with a weapon or
misdemeanor assault with a weapon, if use of a weapon is to
be the vital element of the crime, the State must at least
prove the defendant was aware he was possessing and using a
"weapon." That, of course, would not be difficult in a case
where one is possessing and using a gun or a knife. But this
requirement is especially important where the item alleged to
be a weapon does not have a primary use as a weapon--such as
an automobile. Defendant would be deprived of due process of
law if he was convicted of using a weapon in a situation where
he did not even know the item he was using was a weapon.
The "with a weapon" requirement of both the felony and
the misdemeanor assault provisions, cannot be lightly con-
sidered. Unfortunately, the result of the majority opinion
is that it has impliedly given the green light to the State
to use the assault statutes in prosecuting drunk driving or
reckless driving cases where a collision results in injuries
to other users of the highway. The assault statutes were not
intended for that purpose.
C. DEFINITION OF "WEAPON":
-64-
One definition controls the determination of whether
an item is a "weapon" under the felony assault statute and
under the misdemeanor assault statute. Section 45-2-101
(71), defines "weapon" as follows:
"A weapon means any instrument, article, or
substance which, regardless of its primary
function, is readily capable of being used
to produce death or serious bodily injury."
(Emphasis added.)
This statute, which does not list any item as a weapon per
se, was taken, with slight modifications, from a New York
statute.
New York Penal Statute S 10.00(13) defines "dangerous
instrument" as:
". . . any instrument, article, or substance
including a 'vehicle' as that term is defined in
this section, which under the circumstances in
---
which - - -
it is used. attemated to be used or threatened
to be used, is readily Lapable of causing death
or other serious physical injury." (Emphasis
added. )
The Practice Commentary to the New York statute emphasizes
that whether an item is a "dangerous instrument," depends on
how it is used:
". . . a 'dangerous instrument,' which is not
necessarily designed. as a weapon and ordinarily
has a perfectly legitimate function, is defined,
in subdivision 13, not in terms of specific items
or attributes but in terms of temporary use. It
would be futile to attempt to define a 'dangerous
instrument' in absolute terms--as, for example,
one which is capable of producing death or serious
physical injury--for this would apply to almost
every item on earth (e.g., a fountain pen is capable
of producing blindness if jammed in a person's eye).
-
Accordingly, this subdivision designates 'any instrument,
article, or substance' as 'dangerous' when used, or
attempted or threatened to be used, in a manner
rendering it 'readily capable of causing death or
other serious physical injury.'"
Although the terminology is different, both the New
York and Montana definitions focus on how the "instrument,
a r t i c l e , o r substance" i s used. I t appears, furthermore,
t h a t Montana's d e f i n i t i o n i s even b r o a d e r t h a n N e w Y o r k ' s ,
i n t h a t it i s d e s i g n e d t o c o v e r n e a r l y e v e r y i t e m u n d e r t h e
sun, t h a t is, anything t h a t i s ". . . r e a d i l y capable -
of
being used t o produce d e a t h o r s e r i o u s b o d i l y i n j u r y . " Two
f a c t o r s i n t h e Montana d e f i n i t i o n must b e emphasized.
F i r s t , no i t e m c a n b e a "weapon" u n l e s s i t was u s e d a s
a weapon. The Montana s t a t u t e d o e s n o t l i s t any i t e m a s a
weapon p e r se. I t can t h e r e f o r e be determined whether an
i t e m was a weapon o n l y by examining t h e c i r c u m s t a n c e s i n which
i t was u s e d . The l a n g u a g e o f t h e Montana s t a t u t e - - " r e a d i l y
capable of being used t o produce d e a t h o r s e r i o u s b o d i l y
i n j u r y u - - c l e a r l y r e q u i r e s a c o n v e r s i o n from t h e p r i m a r y u s e
t o a n i l l e g a l use--and t h a t c a n n o t b e done w i t h o u t t h e i n t e n t
of t h e u s e r t o do s o .
Second, t h e i t e m u s e d must b e " r e a d i l y c a p a b l e " o f
p r o d u c i n g t h e p r o s c r i b e d harm. Regardless of t h e i r intended
use, n o t a l l i t e m s a r e " r e a d i l y capable" of producing t h e
p r o s c r i b e d harm. I c a n , f o r example, see s i t u a t i o n s u n d e r
t h e Montana s t a t u t e d e f i n i n g weapon, where o n e c a n i n t e n d t o
u s e a n i t e m a s a weapon and y e t it may n o t have been " r e a d i l y
c a p a b l e o f b e i n g u s e d t o produce d e a t h o r s e r i o u s b o d i l y
injury."
The example u s e d i n t h e New York Commentary i s t h e u s e
of a f o u n t a i n pen. A f o u n t a i n pen c a n p u t o u t a p e r s o n ' s e y e
and s o i t i s c l e a r l y c a p a b l e o f b e i n g a " d a n g e r o u s i n s t r u m e n t "
u n d e r t h e N e w York s t a t u t e , o r a "weapon" u n d e r t h e Montana
statute. Whether i t i s w i e l d e d by a 2 5 0 pound man o r a 110
pound man, i t c a n r e a d i l y i)e u s e d t o p u t a n e y e o u t .
On t h e o t h e r hand, c o n s i d e r r o l l e d up p a p e r p l a c e d i n
a p e r s o n ' s mouth t o gag him. Is t h e r o l l e d up p a p e r a "weapon"
u n d e r t h e Montana d e f i n i t i o n ? Is t h e r o l l e d up p a p e r
". . . r e a d i l y c a p a b l e o f being used t o produce d e a t h o r
serious bodily injury?" A good c a s e c a n b e made t h a t r o l l e d
up p a p e r d o e s n o t h a v e t h e i n h e r e n t q u a l i t y t o be c l a s s i f i e d
a s a "weapon" r e g a r d l e s s o f i t s a c t u a l u s e . A 250 pound
man may w e l l b e a b l e t o c o n v e r t t h e r o l l e d up p a p e r i n t o a
weapon by i n s e r t i n g i t i n a p e r s o n ' s mouth t o gag him. But
a 110 pound p e r s o n may n o t have t h e same p h y s i c a l a b i l i t y t o
p u t t h e r o l l e d up p a p e r t o t h a t i l l e g a l u s e . I n determining
w h e t h e r a n i t e m i s a "weapon," o n e f o c u s must be w h e t h e r t h e
i t e m can b e q u i c k l y and e a s i l y a d a p t e d from a l e g a l u s e t o
an i l l e g a l use, w i t h t h e c a p a b i l i t y of "producing d e a t h o r
serious bodily injury." A f o u n t a i n pen h a s t h a t i n h e r e n t
q u a l i t y i n t h e h a n d s o f e i t h e r a 250 pound man o r a 110 pound
man; b u t r o l l e d up p a p e r i n t h e h a n d s o f t h e same men d o e s n o t
have t h e s a m e i n h e r e n t q u a l i t y . A f o u n t a i n pen, t h e r e f o r e , may
b e a "weapon;" r o l l e d up p a p e r may n o t b e a "weapon."
How d o e s t h e S t a t e p r o v e t h a t a n i t e m was u s e d a s a weapon?
The method o f p r o o f i n a n i n t e n t i o n a l a s s a u l t c a s e i s n o t
a v a i l a b l e where t h e c h a r g e i s s i m p l y t h a t o f n e g l i g e n t a s s a u l t .
F o r example, i n t e n t i s a n e s s e n t i a l e l e m e n t o f t h e c r i m e i n
a t r a d i t i o n a l a s s a u l t case. I n Montana, t h e t e r m " p u r p o s e l y
o r knowingly" was s u b s t i t u t e d f o r t h e f o r m e r p h r a s e " i n t e n t i o n a l l y
and f e l o n i o u s l y . " S t a t e v . K l e i n ( 1 9 7 6 ) , 169 Mont. 350, 547
P.2d 75. A c c o r d i n g l y , where a n i n t e n t i o n a l a s s a u l t i s c h a r g e d
("purposely o r knowingly"), t h e i t e m used t o i n f l i c t t h e b o d i l y
i n j u r y would s i m p l y b e t h e means by which t h e i n t e n t i o n a l a c t
was accomplislied. I f a n i t e m was " p u r p o s e l y o r knowingly"
u s e d t o i n f l i c t " b o d i l y i n j u r y " on a n o t h e r , t h e q u e s t i o n would
s i m p l y b e w h e t h e r t h a t i t e m was ". . . r e a d i l y capable of being
used t o produce d e a t h o r s e r i o u s b o d i l y i n j u r y . " I n o t h e r words,
even though bodily injury was purposely or knowingly
inflicted on another by the use of an item, the jury must still
make a determination of whether that item was a "weaponu--
whether it was "readily capable of being used to produce death
or serious bodily injury."
But what of the nontraditional assault case--a situation
where the charge under section 45-5-201(b) is that a defendant
"negligently caused bodily injury . . . with
p
a weapon?"
-
How
does the State prove that defendant committed a negligent
assault with a weapon unless it is first proved that defendant
knew he was possessing a weapon? I have no problem with the
concept that one who acts negligently (criminal negligence)
with a weapon and thereby causes bodily injury to another,
should be subject to the criminal law. For example, if a
defendant possessed a loaded firearm, and in acting negligently
caused bodily injury to another, a conviction of negligent
assault may be justified. Everyone knows that a loaded firearm
is a weapon. But I cannot accept a fact situation where it is
not proved that defendant knew he possessed a weapon. And that
is the case here.
I next consider the application of Montana's assault
statutes to situations where it is alleged that an automobile
has been used as the instrument of the assault.
D. USE OF AN AUTOMOBILE IN A FELONY CHARGE OF ASSAULT "WITH
A WEAPON" :
An automobile is, without doubt, "readily capable of
being used to produce death or serious bodily injury." The
grim highway statistics of fatalities and injuries provide
sufficient proof of the automobile's capability to be an
instrument of destruction. But this was not a proper case for
charging defendant with felony assault with a weapon.
A proper case for application of the aggravated assault
statute where an automobile is used as the instrument of
the assault, is illustrated by State v. Heine (1976), 169
Xont. 25, 544 P.2d 1212. The testiony in Heine established
that the defendant deliberately caused a head-on collision
with another veihcle in which his ex-wife was riding.
Testimony established an actual intent to harm the occupants
of the other car--the defendant's car was aimed at the victim(s)
just as a gun is aimed.
But this case stands in stark contrast to the Ileine case.
Defendant did not intentionally drive his car into the rear
of the Francisco pickup. Rather, his reckless driving (high
speed and illegal passing maneuvers), no doubt influenced by
his high degree of intoxication, caused the accident which
resulted in the injuries to the occupants of the Francisco
pickup. Defendant did not intend the collision, let alone the
resulting injuries to the occupants of the Francisco pickup.
In Heirle, by contrast, the defendant chose his automobile as
the means by which to cause bodily injury to the occupant(s)
of the vehicle which he deliberately rammed.
The evils of using assault statutes to cover situations
not intended, are illustrated by two Arizona cases, Erimhall
v. State (1927), 31 Ariz. 522, 255 P. 165, and State v.
Balderrama (1964), 3 7 Ariz. 134, 397 P.2d 632. After a 33
year period of injustice, the Arizona Supreme Court finally
decided in Balderrama, that assault statutes could apply to
vehicular collisions only where the facts show that a defendant
intended to use his automobile as the instrument to inflict
the injuries.
In Brimhall, the defendant was accused of felony assault
in a situation where he was drunk and recklessly ran into
-69-
another automobile causing injuries to its lone occupant.
The evidence established that defendant was drunk and that
he was driving recklessly. In his appeal, defendant argued
that the State failed to prove he intentionally drove his
car into the other vehicle, and therefore that he could not
have committed an assault. In upholding the conviction, the
Court reasoned that if reckless driving conduct can result
in a manslaughter conviction where the victim dies, reckless
driving should also result in an assault conviction if the
injured person did not die. The Court, of course, deliberately
ignored the fact that manslaughter statutes specifically
srovided that grossly reckless conduct in causing the death
of another could be the basis of a criminal prosecution.
The assault statutes did not, of course, contain that language.
Justice Lockwood dissented, but his dissent was not to
become law until 33 years later, when, in State v. Salderrama,
supra, the Arizona Supreme Court recognized the illogic and
unfairness of the Erimhall decision and overruled it, holding
that the assault statutes could apply only to situations
where an intentional assault was allegedly committed.
In Balderrama, it was charged that defendant, while
driving his car, struck a school boy who had just alighted
from a school bus. Evidence was conflicting as to whether
the boy was struck by defendant's car or whether he fell in
an effort to avoid being struck by defendant's car. The boy
sustained minor injuries when he struck the pavement.
Defendant was driving between 35 and 45 miles per hour, an
imprudent speed according to witnesses. Defendant was also
drunk. The State charged and convicted defendant of the
felony assault with a dangerous weapon.
--
In reversing the conviction, the Court expressly
recognized that all previous assault with a dangerous
weapon prosecutions were based on the defendant's use of
the instrument as a weapon. 3 3 7 P.2d at 6 3 3 . In holding
that defendant's driving of the car could not be classified
as use of a weapon because there was no proof he intended
to use it as a weapon, the Court adopted the dissenting
rationale of Justice Lockwood in Brimhall v. State, supra,
where he condemned the judicial conversion of intent statutes
into criminal negligence statutes:
". . . It is universally held in the English
speaking jurisdictions that no act alone is a
crime unless accompanying it there is either an
intent to do the spedficact, or else criminal
negligence which causes it. I think it is almost
as well established, and with equal reason, that
criminal neglect can supply the place - - of the
intent --- only when the legislative power - has
expressly so provided. The Legislature can, and
f r e q ~ e n t l ~ d o e s , reasons of public policy,
for
make a specific act criminal when it is negligently
but not intentionally done. In view of the increasing
use of powerful machinery such as automobiles by
persons who are little qualified either temperamentally,
mentally, or physically to control them properly, it
would no doubt be wise for the Legislature to provide,
in the interests of public safety, that any person
who operated such machinery was not only civilly but
criminally responsible for his negligence. A statute
to this effect would be specific and involve
nothing beyond the particular case under consideration."
(Emphasis added.) 3 9 7 P.2d at 6 3 6 .
The Court expressly overruled Rrimhall to the extent it
controlled the result, and in criticizing the use of assault
statutes to cover automobile accident cases, the Court fu-rther
stated:
"There is today no necessity for the courts to
torture statutes to cover the modern problems
presented by the automobile, Tf present laws
specifically dealing with automobiles are
inadequate, and additional sanctions are needed,
the remedy lies with the legislature." 3 9 7
P.2d at 6 3 6 .
The Court ruled that criminal neglect cannot supply the
requirement of intent unless the legislature has enacted a
specific statute, and therefore the defendant's conviction
must be reversed because it was not proved that he intended
to use his automobile as an assault weapon.
The legislature has not acted in this State to create
a crime based on criminal negligence in driving an autcmobile
which causes injuries to another user of the highways. Absent
that legislation, the State had no right to charge defendant
with assault with a weapon where the proof at most was that he
was drunk, and without intent, recklessly drove his car into
the rear of the Francisco pickup. Defendant should never have
been compelled to defend such a charge, for such a charge
should never have been filed. The State tortured the assault
statutes, the trial court permitted the State to torture the
assault statutes, and now this Court has impliedly permitted
the State to torture the assault statutes by refusing to
discuss and decide the assault "with a weapon" issues.
E. NEGLIGENT ASSAULT "WITH A WEAPON'' UNDER THE MISDEMEANOR
STATUTE:
Section 45-2-103(2), supra, requires the State to
prove defendant both negligently caused the bodily injuries
and that he negligently used a weapon. The State proved that
by defendant's reckless and drunken driving he caused bodily
injuries to the four persons named in count 11, but the State
did not prove that defendant negligently used a weapon. The
State failed to prove an awareness on the part of the defendant
that he had converted his automobile from its primary use as
a means of transportation to an illegal use as a weapon. No
evidence exists to prove that defendant knew he possessed
a weapon in the form of an automobile.
In creating the crime of negligent assault, the legislature
focused on the use of a weapon as the gist of the crime. It
is no crime to negligently cause bodily injury to another--
unless a weapon is used. If use of a weapon in a negligent
manner is to be the gist of the crime, a person should not
be punished unless it is proved that he knew the item involved
was a weapon. That is especially so where the intrinsic
nature and primary use of the item involved is not that of a
weapon--such as an automobile. That proof was not available
in this case. Proof that defendant drove his automobile in
a criminally negligent manner and as a result caused injuries
to other users of the highway, is not proof that he was
aware he was using his automobile as a weapon.
In a charge of intentional assault, the intent to use a
weapon in the assault is proved by the circumstances of the
assault. If one intentionally inflicted bodily injuries on
another and used an instrument to inflict those injuries, it
would be rather difficult for the defendant to assert that
the instrument was not intended for use as a weapon. 3ut
even in the case of intentional assault it would be a jury
question to determine whether the instrument was ". . .
readily capable of being used to produce death or serious
bodily injury." Section 45-2-101(71), supra. But that
method of proof is not available where the charge is that
defendant "negligently caused bodily injury to another with
a weapon." If the only evidence available is that defendant
acted negligently rather than intentionally, the State must
at least prove that defendant knew he was possessing a
weapon. That evidence is nonexistent in this case. Further-
more, defendant's automobile could not be a weapon unless he
deliberately converted its use as a means of transportation
to an illegal use as an instrument to inflict bodily injuries
on another.
To uphold the negligent assault "with a weapon!'
conviction would require a holding that an autornobile
driven in a criminally negligent manner is a "weapon" as a
matter of law. I stress, however, that such holding cannot
be justified under the statutory scheme by which use of a
weapon is to be determined. The question of whether an
item was a "weapon" must, under Montana's statutory scheme,
always be determined by a jury.
In felony assault cases some courts have declared that
an automobile driven in a criminally negligent manner is a
"dangerous instrument" as a matter of law. See the cases
cited in State v. Balderrama, supra, 397 P.2d at 635.
However, as the Balderrama decision correctly noted, this
result can be reached only by ignoring the statutory require-
ment that the State must prove an intentional act and that
the item involved was "intended to be used as a weapon."
397 P.2d at 633. But the torturing of assault cases to reach
this result could not apply in this case for yet another
reason: the statutory definition of "weapon" requires a
jury to determine whether the item involved was a weapon and
whether it was used as a weapon.
The statute defining "weapon" (section 45-2-101(71), ,FICA,
supra) does not list any items as weapons. Rather, each
"instrument, article, or substance" must be considered in
the circumstances of each case to determine whether it was
"readily capable of being used to produce death or serious
bodily injury." This means that no item is a weapon as a
matter of law and therefore an item cannot be a weapon in an
individual case unless and until a jury has determined that
question. If a judge were to tell a jury that the item
alleged to be a "weapon," was a weapon - a matter of --
as - law,
he would usurp the jury function and deprive defendant of
his right to have a jury decide that question--an essential
and the key element of the crime.
-74-
I therefore doubt that it would ever be proper to
charge a defendant with negligent assault with a weapon
where the alleged weapon is an automobile. Defendant should
never be convicted of a charge of negligent assault with
a weapon unless it is at least proved that he knew the item
he was using was a weapon. In the case of an automobile,
an automobile could not be used as a weapon unless its use
was deliberately changed from its primary function to that
of an illegal function--a weapon. That is not negligence,
it is an intentional act.
While I can see a defendant being convicted of negligent
assault with a weapon--with the automobile as a weapon--a
conviction could only arise under sectioii 45-2-102, ??CAI supra,
which states that one cannot avoid responsibility for an act
which is criminally negligent if it is proved that he purposely
or knowingly committed the act. The essential proof would
be that defendant intentionally used his car as a weapon. I
would hold, therefore, as a matter of law, that defendant
could not be convicted of negligent assault with a weapon
unless it was proved he was aware he was using his automobile
as a weapon.
Under the facts here the defendant could not he convicted
of negligent assault with a weapon unless the State proved
he used his automobile as a weapon. That proof is demonstrably
lacking. Criminal negligence in driving an automobile hardly
supplies that proof.
For the reasons stated, the negligent assault conviction
must be reversed and the case ordered dismissed.
PART IX. THE CONSECUTIVE SENTENCE IS ILLEGAL.
Defendant was sentenced to the maximum 20 years in
prison for conduct that had never before been considered to
be an aggravated assault or even a simple assault in this
state. If, since 1973, all persons in a similar situation
as defendant, had been prosecuted and sentenced as defendant
was, I have no doubt that we would need 10 new prisons to
hold all the inmates. Ironically, had the person named in
count I as the assault victim, died as a result of her
injuries, probably defendant would have been prosecuted
for negligent homicide, and upon a conviction, could have
been sentenced to a maximum of 10 years in prison. Section
45-5-104, MCA. The result reached in this case, both the
conviction and the sentence, is hardly fair, and is hardly
one contemplated by the legislature. The State has proved
nothing more than criminal negligence, and yet defendant has
been sentenced as though he deliberately drove his car into
the Francisco pickup.
Although it is not normally the function of this Court
to review sentences imposed by the district courts (that is
the function of the Sentence Review Board), I am compelled
to state that the sentence imposed here is a manifest abuse
of judicial discretion. I can only hope and assume that the
defendant will place his case before the Board. Perhaps
that Board will also see the blatant unfairness of the
conviction and of the sentence imposed as a result of that
conviction.
The trial court heaped insult upon injury by sentencing
defendant to a maximum 6 months for the count I1 lesser-
included assault conviction, and by ordering tha-tthis six
month sentence be served in prison consecutively to service
of the 20 year felony assault conviction. The trial court
overstepped its bounds. The G month prison sentence is
illegal. The penalty for misdemeanor assault is set out in
section 45-5-201(2), MCA, which provides that "a person
convicted of assault shall be fined not to exceed $500 or be
imprisoned - -
in the county jail for any term not to exceed 6
months, or both." (Emphasis added.) ~ h i sstatute expressly
provides for imprisonment to be in the county jail, and the
sentence of imprisonment in the state prison, to be served
consecutively to the 20 year prison sentence, is invalid. I
emphasize that I express no opinion as to whether a misdemeanor
jail sentence can be made to run consecutive to the serving
of a felony prison sentence.
I do not know what effect this illegal sentence will
have on defendant's prison sentence. If the prison officials
disregard the 6 month prison sentence, it will probably mean
that defendant must only be concerned with the 20 year
prison sentence insofar as he may become eligible for parole.
On the other hand, if the 6 month prison sentence is figured
in with the 20 year sentence, as regulations require, it
will mean that defendant must spend more time in prison
before he is eligible for parole.
An administrative regulation applicable to service of
prison terms, indicates the 6 month sentence will be stacked
on the 20 year sentence for purposes of determining defendant's
parole eligibility. A.R.M. 20.25.304, Additional or Con-
secutive Sentences, provides:
"(1) If the inmate is received with two or
nore sentences running consecutively, the
sentences will be combined automatically
for parole consideration purposes, unless
the court directs otherwise."
The sentencing court, of course, did not direct otherwise,
and, unless the 6 month prison sentence is invalidated,
the defendant must serve a longer time in prison before he
is eligible for parole.
The consecutive sentence is improper for yet another
reason. Because the trial court gave no reasons for imposing
the consecutive sentence, he abused his discretion and the
sentences must be ordered to run concurrently.
The only statute in this state having some bearing on
consecutive sentences, does so only in an indirect way.
Section 46-18-401(4), MCA, states that "[qeparate sentences
of two or more offenses shall run concurrently unless the
court otherwise orders." The trial court did otherwise
order; but, in doing so, gave no reasons for imposing the
consecutive sentence. That is an abuse of discretion. In
People v. Edwards (1979), 598 P.2d 126, 130, the Colorado
Supreme Court, in setting aside a consecutive sentence,
stated: "Since the record fails to support the trial courts
apparent conclusion that the defendant is beyond hope of
rehabilitation - - - - - - facts justifying
and fails to set out any
imposition - -a consecutive sentence, we hold that the aspect of
of
the sentence constituted an abuse of discretion." (Emphasis
added.) And, in State v. Garcia ( L 9 3 0 ) , 259 Or. 413, 605 P.2d 671,
the Oregon Supreme Court stated that imposition oE a consecutive
sentence should require the affirmative action of the sentencing
court. The court should be authorized to impose a consecutive
sentence only after finding that confinement for such a term
is necessary to protect the public from further criminal
conduct by the defendant.
The American Bar Association has flatly declared "con-
secutive sentences are rarely ap~ropriate." American Bar
-78-
Association Standards Relating - Sentencing Alternatives
to
and Procedures S 3.4 (Approved Draft, 1 9 5 9 ) . "he consecutive
sentences can hardly be appropriate here where both sentences
are based on one act and one state of mind accompanying that
act. Although the convictions involved here cannot be neatly
packaged into a double jeopardy violation, the sentences
smack of double jeopardy. Defendant is being twice ~unished
for one act--an act devoid of criminal intent--an act which
can at most he characterized as criminal negligence. Under
the single transaction theory of double jeopardy, defendant
should not have received a consecutive sentence for the
misdemeanor assault conviction. Defendant did not deliberately
drive into the Francisco pickup and he did not know how many
occupants were in the pickup.
The sentences imposed are manifestly unfair. The
sentences imposed are simply an extension of defendant's trial:
a trial so stripped of fundamental fairness that it can only
be classified as a farce.
PART X. CONCLUSION.
This is a classic case of over-prosecution. Defendant
was charged with DWI in Justice Court--driving while under
the influence of alcohol. He pled guilty to that charge
before trial occurred on the assault charges. Defendant was
charged with leaving the scene of an accident, and he pled
guilty to that charge in District Court before he went to
trial on the assault charges. And defendant was charged in
Justice Court with driving without a valid driver's license.
The record does not disclose what happened to that charge.
And finally, the State charged defendant with two counts of
aggravated assault. The likelihood is that defendant was
uninsured, although that does not appear in the record.
Could it be that because defendant was driving without a
valid license and without insurance coverage that the
prosecutor decided to throw the book at him, including two
counts - aggravated assault?
of The decision to charge defendant
with aggravated assault was a manifest abuse of prosecutorial
power.
The assault convictions are examples of what can happen
when a trial court lets a prosecutor torture the law, and
when the trial court effectively becomes an accomplice to an
abuse of prosecutorial power by failing to scrutinize the
law which forms the basis of the prosecution. While the trial
court should never have let the prosecutor get away with
filing aggravated assault charges against defendant, it is
indeed unfortunate that this Court failed to perceive the
glaring injustice caused by prosecutorial overreaching. In
Parts 111 through IX of this dissent I have set out what I
believe to be a basis for even the most conservative court
to be moved to reverse.
An organized and widespread movement exists in this
state to crack down on drunk drivers, and that goal is a
laudable one. The tragedy of the results of drunk driving
cannot be measured. Nonetheless, the injustice perpetrated
here is an example of what can happen when well-meaning but
misguided efforts are made to prosecute to the fullest extent
possible. Laws are extended beyond the breaking point and
the duty of the legal system to give a fair trial to everyone
accused of a crime is somehow cast aside in the effort to
get at those who abuse their driving privileges by their drunk
driving.
Alcohol is this society's legal--and lethal--drug. Its
use is condoned, encouraged, and yes, even expected. Drunk
driving, in the long run, will not be appreciably diminished
until society takes another look at the dynamics of alcohol
consumption. This is not to say, however, that the legislature
should not take action to express through legislation that
one who drunkenly drives his car into another car and injures
its occupants, must expect penalties more severe than simply
those flowing from a drunk driving charge. If the legislature
wants to enact a criminal negligence law with severe penalties
for those who injure other users of the highways by their
criminally negligent driving, it certainly has that peroqative.
But until the legislature enacts that legislation, the courts
have no obligation to torture the assault statutes so that the
state can reach that objective without the benefit of legislation.
Rather, it is the obligation of the courts to see to it that
the laws are not abused and misused by overzealous prosecutors
who are bending to the cries of the public for retribution
against drunk drivers. It may be good politics for the
prosecutors and the trial courts to so torture the assault
statutes, but that approach is hardly advancing the law.
Finally, t i Court is the last bastion against prosecutorial
hs
abuse of penal statutes.
The appellate review has only superficially covered the
issues which, unfortunately, have only been superficially
raised and argued. The injustice perpetrated by the justice
system in this case is not only clear and convincing, it
is clear beyond a reasonable doubt. The blame lies not with
the legislature and not with the jury. Rather, it lies with
the prosecutor, with the trial court, and finally, because
the buck stops here--with this Court. We have failed miserably.
Justice requires that both the aggravated assault con-
viction and the misdemeanor assault conviction he reversed
and that the charges be dismissed.
I concur in the dissent of Justice She+;
/