No. 82-251
1 2 4 THE SUPREME COURT O THE STATE O MONTANA
F F
1983
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
DAVID A. MADERA and
GARY LAMERE,
D e f e n d a n t s and A p p e l l a n t s .
APPEAL FROM: D i s t r i c t C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f S i l v e r Bow,
The Honorable Mark P. S u l l i v a n , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For A p p e l l a n t s :
David L. H o l l a n d , E u t t e , Montana
W i l l i a m M. K u n s t l e r , a r g u e d , N e w York, Xew York
Brad L. B e l k e , a r g u e d , B u t t e , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
R o b e r t McCarthy, County A t t o r n e y , B u t t e , Montana
P a t Fleming & Ross R i c h a r d s o n , a r g u e d , Deputy County
A t t y s . , B u t t e , Montana
Submitted: A p r i l 2 8 , 1983
~ecided: October 6 , 1983
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Gary LaMere and Dave Madera appeal from their
convictions of robbery and felony theft in the District Court
of the Second Judicial District, Silver Bow County. They
also appeal from the sentences given them by the District
Court of 50 years each in the Montana State Prison. We
affirm both convictions.
On the night of October 3, 1981, two masked gunmen
robbed the occupants of the Dumas Hotel, a reputed house of
prostitution in Butte. To gain entry, one of the robbers
posed as a patron. When the door was opened, the two men
pushed their way in and proceeded to rob the four women they
found in the building. The women were bound and threatened
with death if they did not cooperate. After robbing the
women, the men fled.
The police were notified a day or two later and an
investigation was begun. Police officers watched LaMerels
residence for three days. After observing no activity during
this time, they contacted LaMerels landlord for information
about LaMere. After being informed that LaMere was a suspect
in their investigation, the landlord invited an officer to
enter LaMere's apartment with him. The officer and the
landlord entered the apartment and discovered that it had
been recently abandoned. The apartment, which the landlord
testified was always neat and clean, was strewn with garbage
and contained no personal possessions. The landlord and the
officer walked through the apartment, looked around, and then
left. Later that day, the landlord signed a consent to
search the apartment. During the search, the officers found
what appeared to be a map of the layout of the Dumas Hotel
and a piece of pantyhose which the officers believed to be a
mask worn by one of the robbers.
On December 10, 1981, an information was filed in the
District Court charging LaMere with one count of felony theft
and one count of robbery. The count of robbery was based
upon section 45-5-401(1) (a), MCA, charging that LaMere "in
the course of committing a theft, purposely or knowingly
inflicted bodily injury upon [a woman]."
Shortly thereafter, on January 8, 1982, an information
was filed against Madera charging him with criminal
responsibility for one count of felony theft and one count of
robbery, which was also based upon section 45-5-401(1) (a),
MCA .
The information against LaMere was later amended so that
the robbery count was based upon section 45-5-401 (1)(b) .
LaMere was charged with "in the course of committing a theft,
purposely or knowingly put[tingl a person in fear of
immediate bodily injury." The information against Madera was
never amended.
On February 2, 1982, the trials of Madera and LaMere
were ordered consolidated by the District Court and trial
began on March 2, 1982. The jury reached a verdict finding
both defendants guilty of count I, robbery, and count 11,
theft. Both defendants now appeal their convictions and
sentences to this Court.
In connection with the issues raised it will be
explanatory to note that in each case counsel representing
the defendant in the lower court is different from counsel
representing each on this appeal.
THE LAMERE APPEAL
Issue 1. The District Court erred in allowing the State
to use rebuttal witnesses at trial when the State had failed
to give notice of said witnesses as required by statute.
Section 46-15-301 (3), MCA, requires the State, for the
purpose of notice only and to prevent surprise, to furnish to
the defendant and file with the clerk of the court, no later
than five days before trial "or at such later time as the
court may for good cause permit," a list of witnesses the
prosecution intends to call as rebuttal witnesses to the
defense of alibi, among other defenses.
Jury trial of these consolidated cases began on March 2,
1982. On the last day of trial, March 8, 1982, the State,
without the notice required by section 46-15-301- ,
(3)
presented rebuttal witnesses over the objection of counsel
for LaMere.
LaMere claims that the State was aware of these
witnesses before the trial, but failed to apprise LaMere of
their existence. The State contends that since the attorney
for LaMere refused to inform the State of the exact nature of
LaMerels alibi, (but rather, claiming lawyer-client privilege,
gave only the information required by statute,) the State did
not know if the information possessed by the rebuttal
witnesses would be relevant until the alibi witnesses
testified at trial.
On Friday, March 5, 1982, LaMerels alibi witnesses
testified that LaMere was in Wallace, Idaho, on October 2 and
3, 1981. The crime is alleged to have occurred on October 3.
On Monday, March 8, 1982, the State notified LaMere of the
rebuttal witnesses that would be presented. The State
offered LaMere, through his counsel, the opportunity to talk
to the rebuttal witnesses. The rebuttal witnesses were from
St. James Community Hospital in Butte, and they testified
that LaMere had received attention at the hospital at 10:38
p.m. on October 2, 1981.
The District Court agreed with the State that until
LaMerels alibi witnesses had testified, the State had no way
of knowing what those witnesses would testify to, and until
the testimony of the alibi witnesses, the rebuttal witnesses1
testimony that LaMere was present in Butte on October 2,
1981, would not be relevant. The District Court also felt
that the defense counsel were given adequate opportunity to
talk to the rebuttal witnesses before they testified. On
those bases, the District Court permitted the testimony of
the rebuttal witnesses.
The State contends on appeal that it therefore gave
notice to defendant's counsel at the earliest practicable
time. In the meantime, defense counsel had refused to give
the State copies of statements, if any, taken from the alibi
witnesses, or to divulge the nature and extent of their
testimony to the State.
LaMere points out that in State v. Johnson (1978), 179
Mont. 61, 585 P.2d 1328, this Court approved the limitation
of testimony from the defendant's mother as to the
whereabouts of the defendant during the time of the robbery,
when the defendant had not given notice of an alibi defense;
in McGuinn v. State (1978), 177 Mont. 215, 581 P.2d 417, this
Court held that an alibi could not be relied on by the
defendant since no notice of that defense was given as
required by the then pertinent statute. LaMere contends that
this Court has been quick to deny witnesses when the
defendant has not given an alibi notice, and should be
equally prompt to deny State witnesses when it fails to give
the statutory notice.
Finally, on this issue, LaMere contends that although
the Montana statute is facially constitutional because it
provides reciprocal revelation of alibi and rebuttal
witnesses by the State and the defendant, the failure here of
the State to give the 5-day notice has unconstitutionally
deprived him of due process.
LaMere bases his constitutional argument by drawing on
the decision in Wardius v. Oregon (1973), 412 U.S. 470, 93
S.Ct. 2208, 37 L.Ed.2d 82. There the Supreme Court held that
the due process clause of the United States Constitution
forbids enforcement of alibi rules unless reciprocal
discovery rights are given to the defendant. Our statute,
section 46-15-301, MCA, provides for reciprocal rules as to
notice, but LaMere contends that in actual practice here, and
as his trial was conducted, he was deprived of his due
process rights when he was not given notice of the rebuttal
witnesses as provided in that section.
It must be noted, however, that the statute provides for
unanticipated exigencies that may arise on trial, both for
the defendant and the State. Thus, both as to the State and
the defendant, the court may waive the time limitations for
giving notice when "good cause" is shown. Here the State
contends that it served the defendant with a list of its
intended rebuttal witnesses at the earliest opportunity.
Until the alibi witnesses testified on March 5, 1982, during
the trial, the State contends it had no knowledge of what the
alibi witnesses would testify to concerning the whereabouts
of LaMere on the contested dates. Once the alibi testimony
was presented the State, then being in a position to disprove
through the rebuttal witnesses that LaMere was not out of the
State on the night preceding the robbery, as he contended,
served the notice of its witnesses. The court ordered and
the State was willing to give defense counsel an opportunity
to talk to the rebuttal witnesses before they testified, but
defense counsel refused theoffer. No motion was made by
defense for a continuance of the trial.
The statute in question obviously gives discretion to
the District Court to permit additions to the witness list
when good cause is shown; good cause must certainly be
construed to include the amendment of the witness list
because of evidentiary matters developed during the
presentation of the case of either party, matters which
require clarification or rebuttal by that party. The
District Court may permit the amendment even after the trial
has commenced, State v. Klein (1976), 169 Mont. 350, 547 P.2d
75. If surprise is claimed by the other party, the proper
procedure when unrevealed witnesses are added is to ask for a
continuance so that preparation may be made, State v.
McKenzie (1976), 171 Mont. 278, 557 P.2d 1023, but here no
continuance was requested.
Undoubtedly, the testimony of the rebuttal witnesses
gravely effected defendant's alibi defense. The defendant
had earlier refused to reveal to the State the substance of
the testimony that his alibi witnesses would provide. He
took a chance and his strategy failed. He was caught in a
trap of his own making, and no constitutional or statutory
impurity arose thereby.
Issue 2. The District Court erred in not granting
LaMere's motion to suppress evidence seized as part of an
illegal search and by allowing the introduction of the same
by the State at trial.
LaMere contends that the entry into his apartment by the
detective in the company of the landlord the first time,
without warrant, and only by consent of the landlord, was
illegal because no exigency existed which excuses the lack of
a warrant; the plain view doctrine may not be invoked by a
person unlawfully on the premises; and the landlord had no
authority to consent to the search by the detective.
Moreover, LaMere contends there was no judicial supervision,
because the items seized were not returned nor inventory made
of them. LaMere contends that the requirement of filing an
inventory and delivering a copy to the person from whose
premises the property was taken should apply not only to a
search conducted without a warrant, but also to a search
conducted by consent or under color of consent. See section
46-5-301, MCA.
The detective went into the rental premises on October
7, 1981, in company of the landlord. The curtains had been
drawn, no car was parked in front of the residence, there was
no response when the landlord knocked on the door, LaMere's
key was found inside, and there was garbage, including beer
cans, paper sacks, empty cigarette packs, and a box spring
and mattress with no bedding on it, lying on the floor. The
landlord indicated that the apartment before that had always
been neat and clean, and the landlord further stated that "it
looks like their stuff is gone." The rent was unpaid for the
month of October (due October 5) and there was no evidence
that LaMere came to the apartment at any time after the
robbery occurred or before his arrest on November 6, 1981.
Later when the detective obtained from the landlord a
consent to search the apartment, he tagged the evidence and
placed it in the evidence locker, but failed to bring it
before a magistrate.
At trial a torn piece of paper which appeared to be a
map of the floor plan of the Dumas Hotel was introduced and a
piece of pantyhose which may have been used as a mask during
the robbery was also introduced. These are the two exhibits
which LaMere claims were illegally obtained.
Clearly, LaMere is not in a position to argue any
infringement of his constitutional guarantees against
unreasonable search and seizure in this case. He had
departed the apartment at the time it was searched. His
abandonment of the premises is undoubted. The defendant had
disclaimed by his actions any right to object to the place
being searched or the things seized. Section 46-5-103, MCA.
State v. Callaghan (1964), 144 Mont. 401, 407, 396 P.2d 821,
824; Abel v. United States (1960), 362 U.S. 217, 80 S.Ct.
683, 4 L.Ed. 2d 668. On abandonment by the tenant, the
landlord was in possession of the apartment. He had
authority under our statutes to consent to the search,
section 46-5-101 (2), MCA.
The search was made without a warrant, but there is no
statutory requirement that items seized under a consent
search be inventoried and reported to a magistrate.
Issue 3. The District Court erred in not considering
the charge of theft as a lesser-included offense of the
charge of robbery and the District Court should have
dismissed one of the two counts.
LaMere was charged in count I with robbery in violation
of section 45-5-401(1)(b), MCA, which provides:
"(1) A person commits the offense of robbery if in
the course of committing a theft he:
" (b) threatens to inflict bodily injury upon any
person or purposely or knowingly puts any person in
fea.r of immediate bodily injury;. . ."
LaMere was charged in count I1 with theft in violation
of section 45-6-301(1) (a), MCA, which states as follows:
"Theft. (1) A person commits the offense of theft
when he purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and :
"(a) has the purpose of depriving the owner of the
property;"
The charge against LaMere also alleged that the property
exceeded $150 in value which made the charge a felony.
The essence of LaMerels argument on this issue is that
in order to prove a robbery, the State must prove a theft,
and therefore the charge of theft is a lesser-included
offense within the charge of robbery.
The "Blockburger test" (Blockburger v. United States
(1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306,
309) states:
"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 an
additional fact which the other does not.. .
.I1
However, in Iannelli v. United States (1975), 420 U.S.
770, 785, fn. 17, 95 S.Ct. 1284, 1294, fn. 17, 43 L.Ed.2d
616, 627, fn. 17, the Supreme Court explained the Blockburger
test saying:
"If each requires proof of a fact that the other
does not, the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof
offered to establish the crimes.. . ."
Our statute, section 46-11-502(1), MCA, prevents
prosecution for more than one offense, when one offense is
included in the other.
In State v. Ritchson (1981), - Mont . -, 630 P. 2d
234, 38 St.Rep. 1015, we considered the Blockburger rule, and
determined the applicable test is whether each charge
requires proof of a fact which the other does not, to
determine if there is indeed a lesser-included offense.
We look to the statutes and not to the facts of the
individual case to make that determination. Ritchson, 630
In interpreting the statutes defining robbery, and the
statute defining theft, we note that to prove robbery, the
State's case is complete if as an element of the offense it
proves either misdemeanor or felony theft. However, in order
to prove felony theft, the State must prove that the value of
the property taken or unlawfully controlled, exceeds the
value of $150, sections 45-6-301(1) (a) and (5), MCA. There
is then an additional element of proof required to convict
the defendant of felony theft that is not to be required for
his conviction on the charge of robbery. In that situation,
the Blockburger test is met and the theft in this case is not
a lesser-included offense within the charge of robbery.
Issue 4. The District Court erred when it enhanced
defendant's sentence under section 46-18-221, MCA.
When LaMere was sentenced by the district judge, his
sentence included ten years for the use of a dangerous weapon
as provided in section 46-18-221, MCA. LaMere contends that
since the charging document did not mention a weapon as was
the case in State v. Davison (1980), - Mont . -, 614 P.2d
489, 37 St.Rep. 1135, and since he was not given notice of
any intent to seek enhancement, that his enhanced sentence
was improper.
In passing sentence, the district judge found from the
evidence that LaMere was in possession of a firearm during
the commission of the crimes, and for that gave him an
additional ten year sentence to run consecutively with the
other sentences imposed.
While the amended information itself did not mention
that LaMere used a weapon in connection with the crimes
charged, the affidavit filed by the county attorney for leave
to file the amended information recited that during the
commission of the crime the two armed men continually had
hand-weapons in their possession and threatened to use the
same. Moreover, on March 2, 1982, the county attorney served
defense counsel with a letter advising him that the State
intended to invoke the enhancement section, section
46-18-221, MCA. In those circumstances, we find no error on
the part of the District Court in utilizing the provisions of
the enhancement statutes for use of weapons in determining
the sentence to be imposed upon the defendant.
THE MADERA APPEAL
Issue 1. The District Court erred in not dismissing one
of the counts against Madera because the elements of theft
are included within the crime of robbery.
We have discussed this issue in connection with the
LaMere appeal foregoing. Our holding on this issue is the
same in the case of Madera.
Issue 2. The District Court erred in designating Madera
a persistent felony offender where there was no evidence that
Madera was the same person as the one whose felony record was
introduced at the sentencing.
At the time of sentencing, the District Court added ten
years at Montana State Prison to be served consecutively by
Madera to the 50 year sentence previously imposed by the
court. In other words, the district judge enhanced Madera's
sentence under the provisions of section 46-18-502 (1), MCA.
The reason for the enhancement was that Madera had previously
been convicted of aggravated assault and had been
incarcerated at Montana State Prison. He had been released
from Montana State Prison on August 25, 1981. The robbery
and theft at the Dumas Hotel occurred on October 3, 1981.
The basis of Madera's contention on this issue is that
there is no evidence that Madera was the same person whose
prior record was introduced at the sentencing hearing.
In State v. Livermore (1921), 59 Mont. 362, 196 P.
977, this Court held the State must independently prove that
the person whose record is introduced and the person being
sentenced are one and the same. That case, however, was
decided when there was no separate sentencing hearing
provided under our statutes, where the defendant could take
the stand and deny the allegations made in a presentence
report. We held in State v. Radi (1979), - Mont . -, 604
P.2d 318, 320, 36 St.Rep. 2345, 2347, under our present
statutes, that when matters contained in a presentence report
are contested by a defendant, the defendant has an
affirmative duty to present evidence showing the inaccuracies
contained in the report.
Although Madera had opportunity at the sentencing
hearing to refute or contradict the information that was
contained in the presentence report introduced through Craig
Thomas, he chose not to take the stand or otherwise present
evidence to contradict or refute the prior convictions. He
is therefore precluded from contesting this issue on appeal.
Issue 3. The District Court erred in designating Madera
a persistent felony offender because he was not given notice
of the State's intention to request such designation under
section 46-18-503, MCA.
In order for the reader to understand this issue, we
must first set out the pertinent parts of the statute which
provide for sentencing persons designated as persistent
felony offenders. Section 46-18-503, MCA, is the statute
involved. The statute requires two notices to be given to
the accused or his attorney. First notice must be given in
writing to the accused or his attorney before the entry - -a
of
plea - guilty
of & the accused - before - - - is called
or the case
for trial upon - plea - - guilty, which notice must
a of not
specify the prior convictions alleged to have been incurred
by the accused. The notice and the charge of the prior
convictions are not to be made public in any manner or in any
manner made known to the jury before the verdict is returned
upon the felony charge.
In this case, written notice was given by the county
attorney to the accused through his counsel on March 2, 1982,
before the case was called for trial. A copy of the written
notice was not filed with the clerk of the District Court,
however, in compliance with section 46-18-503, until after
Madera had been convicted on the felony charges against him.
On March 22, 1982, a copy of that notice was filed with the
clerk, together with a motion to designate Madera as a
persistent felony offender.
The second notice required under section 46-18-503, MCA,
applies when the defendant is convicted. Then, the notice
that the State will seek persistent felony offender
designation, which has previously been served upon the
accused or his counsel, must be filed with the court before
the time fixed for sentencing, and the court must fix a time
for hearing with at least three days notice to the accused.
In this case, when the notice, along with the motion to
designate Madera a persistent felony offender was filed, the
court made and entered its written order that a hearing on
the motion be held March 26, 1982. The record does not show
that a copy of this order or motion or notice of the same was
served upon the defendant or his counsel. Madera contends
that, because he was not served with the second notice, the
court was without jurisdiction to sentence him as a
persistent felony offender.
It is obvious from section 46-18-503, MCA, that the
jurisdictional notice upon which the persistent felony
designation must be founded is the first notice required to
be given either before the entry of plea of guilty or before
the case is called for trial upon a plea of not guilty. The
record here positively indicates that the first notice was
given. The second notice, however, is procedural rather
than jurisdictional. Here the court made and entered an
order providing for four days before a hearing would be held
on the motion to designate Madera as a persistent felony
offender. The accused and his counsel appeared before the
District Court at the time and place set in that order for
hearing. At that time, no objection was raised by counsel or
the accused that the second notice, the notice of the
hearing, had not been given to Madera. Nowhere in the
record, or on briefs, does Madera show any prejudice to him
because of the lack of direct written notice as to the time
of hearing on his designation as a persistent felony
offender. When the sentencing hearing was held on March 26,
1982, the accused and his attorney were aware by virtue of
the first notice given to them on March 2, 1982, that the
State would seek Madera's designation as a persistent felony
offender. The defendant was specifically informed in the
notice given to him before trial that his persistent felony
designation would be based on his prior conviction for
aggravated assault in Lake County, Montana, for which he had
received a sentence of ten years. Since Madera was fully
informed of the charge which would be used against him, it
cannot be urged that he was prejudiced by the failure to
receive notice of the actual sentencing hearing, a hearing at
which he appeared and did not contest the fact of the prior
conviction itself.
It should be noted that at the sentencing hearing, when
both LaMere and Madera were required to be present before the
court, counsel for LaMere raised the objection that the State
had failed to prove that LaMere was the identical person
whose record was presented to the court. Counsel for Madera
joined in all motions raised by LaMere's counsel but neither
counsel objected on the ground of lack of proper notice.
We will not ordinarily consider questions of claimed
error not previously raised or presented to the trial court.
State v. Johns (1982), - Mont .- 653 P.2d 494, 497, 39
St.Rep. 2049, 2053.
Issue 4. The District Court erred in sentencing
appellant to an additional ten years for the use of a firearm
because there were no allegations in the information against
him that he used, displayed or brandished a firearm or other
weapon.
The District Court sentenced Madera to an additional ten
years to be served consecutively after the remaining
sentences under section 46-18-221, MCA, for engaging in the
commission of robbery and theft while knowingly displaying,
brandishing or using a firearm or other dangerous weapon.
In State v. Davison (1980), Mont . -, 614 P.2d 489,
496, 37 St.Rep. 1135, 1143, we held that section 46-18-221,
imposing an additional mandatory sentence upon a defendant
found guilty of an offense while knowingly using a dangerous
weapon, did not provide for a separate substantive offense.
We did, however, note in Davison that the charging document
against him mentioned that he was armed with a knife while
committing the crimes with which he was charged. We
therefore held that the additional mandatory sentence could
be imposed upon Davison without any violation of the Sixth
Amendment of the United States Constitution which grants the
accused the right to be informed of the nature and cause of
the accusation against him.
Madera extrapolates from Davison that the charge or
information against him must in some manner mention the use
of a dangerous weapon before the mandatory sentence may be
imposed, contending that otherwise he is deprived of a jury
trial on the issue.
Madera raises two contentions under this issue: one,
that the charging instrument must show that he used a weapon
before he can be sentenced for the use of a dangerous weapon
and; two, that since he was an accomplice and not the actual
perpetrator of the crime, such an enhancement statute may not
be used against him.
With respect to the first contention, we hold that the
charging instrument, the information, need not contain within
it a specific allegation of the use of a firear~n or other
dangerous weapon if the charging instrument otherwise
properly identifies the crime for which the defendant is
charged. The statute providing for enhancement of the
sentence where a dangerous weapon is utilized is one for
punishment and not one to define an element of the crime
charged. Therefore, the information need not specifically
set forth that a weapon was used in the commission of the
crime charged. Punishment is not and never has been
considered a part of the pleading charging a crime. State v.
Angus (Utah 1978), 581 P.2d 992, 995.
As a matter of fact, before Madera's case was called for
trial, on March 2, 1982, the county attorney gave written
notice to the accused and his counsel that the provisions of
section 46-18-221, MCA, would be requested by the State in
this case.
Madera's second contention relates to his insistence,
running through several of the issues he raises here, that he
was convicted as an accomplice and not as a perpetrator of
the crime. Therefore, he contends he is entitled to the
benefit of section 46-18-222(4), MCA, which provides that a
defendant is entitled to a statutory minimum sentence, if
"the defendant was an accomplice, the conduct constituting
the offense was principally the conduct of another, and the
defendant's participation was relatively minor."
The testimony of the principal witness for the State,
the manager of the reputed "house," implicated Madera
considerably more than merely as an accomplice. When she
answered the knock on the door to her place, she looked out a
little window and saw a short man outside who was jumping up
and down and who said, "This is one hot Mexican, let me in."
She then opened the back door a few inches when suddenly
another person burst through the door, gra.bbed her hand, and
hit her on the head with a gun. The other person was wearing
gloves, was 6 feet 2 inches tall, and wore a ski mask with
figures on the ski mask. At the same time the first person,
the short man, burst in wearing a stocking mask. They forced
this woman and three others to lie down on the floor under
threat of death, while they taped their mouths and hands with
adhesive tape. Using threats, they demanded to know where
the money was. She testified that both men had guns. The
short man, whom she later identified as Madera, had a gun
with a longer barrel on it than the other person's gun.
After they found $200 that belonged to the principal witness,
they took each of the other three girls upstairs and one by
one extracted their money from them. The individual doing
a
this was identified asrlittle Mexican," Madera himself. The
witness also described that the men poked their guns in the
sides of the women and against their heads, telling them
frequently that they were going to kill them; they kicked one
so badly she couldn't walk the next day; the principal
witness was struck very hard in the head so that her wound
had to be treated by the other girls after the men had left.
After the money had been extracted, they cut light cords from
the various rooms and used them to tie their feet and heads
together so that they would choke if they moved. There is
more in the record, but what we have recounted is enough to
indicate the full involvement of Madera in the commission of
the crime. He is, therefore, not within the exception as an
accomplice which would require a minimum mandatory sentence
with respect to the use of a firearm in this case.
Issue 5. The District Court erred in instructing the
jury on a different charge than the charge of robbery made
against Madera.
Issue 6. The District Court erred in allowing the
appellant to be tried, convicted and sentenced on crimes for
which he was not charged.
Issue 7. The information against Madera was fatally
defective because it did not apprise Madera of the nature and
cause of the accusations for which he was charged and the
time and place of the alleged offense was not stated.
We discuss issues 5, 6 and 7 together for clarity.
Madera was charged in the information as follows:
"DAVE MADERA is criminally responsible for the
following counts:
"CT. I. In the course of committing a theft,
purposely or knowingly inflicted bodily injury upon
[a woman] .
"CT. 11. Purposely or knowingly exerted
unauthorized control over property, to wit: cash,
having a value in excess of $150.00 which was owned
by [a woman] and had the purpose to deprive the
owner of said property."
The information against Madera was never amended, and
the foregoing charges in the information are the basis of the
conviction of Madera.
We have recited in foregoing portions of this opinion
the participation of Madera in the record as shown from the
testimony of witnesses. Madera has never contested that the
acts which we have recited occurred. He has continuously
argued that his identification by the woman involved was
faulty and nearly all of his case was directed to disprove or
cast doubt upon her identification of him.
The court gave these instructions which are pertinent to
Madera's conviction:
"INSTRUCTION 36
"A person commits the offense of Robbery if, in the
course of committing a theft, he:
"purposely or knowingly puts any person in fear of
immediate bodily injury, or purposely or knowingly
inflicts bodily injury upon another.
"The phrase, 'in the course of committing a theft,'
as used in this section includes acts which occur
in an attempt to commit, in the commission of, in
flight after the attempt or commission of theft.
"INSTRUCTION 38
"To sustain the charge that DAVE MADERA is
criminally accountable for the commission of the
ROBBERY at 45 East Mercury Street, Butte, Montana,
the State must prove the following propositions:
"First: That on or about October 3, 1981, a
Robbery occurred at 45 East Mercury Street, Butte,
Montana; and
"Second: That the Defendant, DAVE MADERA, either
before or during the commission of the ROBBERY,
with the purpose to promote or facilitate the
commission of the ROBBERY, did aid, abet, agree or
attempt to aid the perpetrator(s) in the planning
or commission of the offense of ROBBERY.
"If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you must
find the Defendant, DAVE MADERA, guilty of the
felony offense of ROBBERY.
"If on the other hand, you find from your
consideration of all the evidence that either of
these propositions has not been proved beyond a
reasonable doubt, then you should find the
defendant, DAVE MADERA, not guilty of the felony
offense of ROBBERY.
"INSTRUCTION 42
"This being a felony case, all twelve of your
number must agree in order to find a verdict . . ."
The District Court also instructed the jury, in its
instruction no. 1:
II . The defendant David Madera, is, by
information, accused of being criminally
responsible for the commission of two (2) felony
offenses: ROBBERY and THEFT; said offenses are
alleged to have been committed in Butte Silver Bow
County, State of Montana, on or about the 3rd day
of October, 1981."
No objection was lodged by the defendant or his counsel
against the instructions when proposed and given.
We now recount the several contentions raised by Madera
in connection with the charges against him and the
instructions given by the court.
Madera points to the difference in court's instruction
no. 36 from the language in the information. In the
information, he was charged with purposely or knowingly
inflicting bodily injury upon another. In the instruction,
the court instructed that Madera could be convicted if he
"purposely or knowingly puts any person in fear of immediate
bodily injury, or purposely or knowingly inflicts bodily
injury upon another."
Madera claims that a dual verdict was possible here
under the instruction, because six of the jurors may have
convicted him for knowingly inflicting bodily injury upon
another, and the other six may have convicted him for putting
a person in fear of immediate bodily injury. He contends
there is a possibility that the verdict here was not
unanimous.
We considered this same issue in State v. Warnick
(19821, - Mont. -, 656 P.2d 190, 39 St.Rep. 2369. We
stated there that when there has been no objection to the
instruction, there is no basis for appellate review of those
instructions, citing State v. Powers (1982), - Mont .- I
645 P.2d 1357, 39 St.Rep. 989. In addition, we stated that
when the jury had been instructed as to the requirement of a
unanimous verdict, and when each alternative presented to the
jury was supported by substantial evidence, the non-unanimous
jury contention is not available. McKenzie v. Osborne
(1981), 195 Mont. 26, 640 P.2d 358; Fitzpatrick v. State
(1981), - Mont . -, 638 P.2d 1002, 38 St.Rep. 1448.
Madera further contends that although he was charged as
an accomplice in aiding and abetting the crimes of robbery
and theft, the District Court "forgot the crime with which
Madera was charged" and so he was tried as a principal. The
jury verdict forms were those for a principal. Thus Madera
claims that his rights under the Sixth Amendment to the
United States Constitution and Article 11, S 17, of the
Montana Constitution were violated in his prosecution.
The answer to Madera's contentions is found in section
45-2-301, MCA, which states:
"A Derson is res~onsible for conduct which is an
eleient of an offense if the conduct is either that
- - person himself or that of another and he is
of the
legally accountable for such conduct as provided in
45-2-302, or both." (Emphasis added.)
Under the instructions in this case, the defendant was
charged, tried and convicted for being responsible or
accountable for the crimes of robbery and theft. The fact
that the word "accountable" was not inserted before the words
"robbery" and "theft" on the verdict forms does not have any
bearing on the case. The jury was fully instructed as to the
law under which the crime was committed.
Madera also alleges error in the failure of the
information to list the time and place of the offense. He
was, however, served with the State's application for leave
to file information, in which it was recited that on October
3, 1981, a residence located at 45 East Mercury, Butte,
Montana, was entered and robbed by two masked, armed men.
In State v. Longneck (1981) I - Mont . -, 640 P.2d
436, 438, 38 St.Rep. 2160, 2162, we held:
". .
. the contents of the affidavit supporting a
motion for leave to file an information may be
considered in determining the meaning of the
language contained in the information."
See also State v. Riley (1982), - Mont. -, 649 P.2d 1273,
39 St.Rep. 1491, where we considered an attack on the
sufficiency of an information and where the State had failed
to declare the time and place of the offense as definitely as
could be done. There we held that precision as to time was
not necessary unless time is a material ingredient of the
offense.
We find no merit in the allegations of error under
issues 5, 6 and 7.
The foregoing seven issues were raised by one of
Madera ' s counsel on appeal. Additionally, his other
appellate counsel raised two issues on appeal which follow.
Issue 8. Whether the failure to record the voir dire,
the opening statements, bench conferences, the closing
statements, the jury charge, and the jury poll denied
defendant due process of law.
None of the portions of the trial set forth in issue no.
8 were taken down by the court reporter during trial so no
transcript or record of the same is available on appeal.
Madera contends that he thereby has been deprived of due
process of law.
There can be no doubt from the record that Ma.deralsthen
trial counsel waived those portions of the record not
recorded.
In State v. Seitzinger (1979), 180 Mont. 136, 589 P. 2d
655, the transcript available to appellate counsel, who, as
in this case, were different from trial counsel, did not
include the voir dire and the opening and closing arguments.
There the defendant argued that the failure to record the
voir dire and opening and closing statements constituted
reversible error. We rejected that contention because "it
was impossible for this Court to reach defendant's
specifications of error upon vague and unsbustantiated
statements of counsel" and because appellate counsel had not
made efforts through means of affidavits of trial counsel to
pinpoint the errors in the unreported sections of the trial.
Appellate counsel state that they have attempted to
obtain from the trial counsel the unrecorded errors that were
made but through human failure such errors cannot be
pinpointed. Nevertheless, in the Seitzinger decision, we
stated that for the protection of the record, a trial court
should order its court reporter to record the voir dire
examination, the opening statements and the final arguments
and that diligent defense counsel should demand that these
proceedings be recorded. 180 Mont. at 143, 589 P.2d at 659.
Appellate counsel contend that the foregoing dictum in
Seitzinger now requires that the failure to provide an
adequate trial transcript in this case is reversible error.
Madera's appellate counsel rely on United States v. Selva
(5th Cir. 1977), 559 F.2d 1303, where the Court held that the
inability to produce the trial record places no burden on an
appellant to show specific prejudice in order to obtain
relief of violations.
The State urges here that we should adopt the rationale
of Seitzinqer and refuse to reverse upon vague
unsubstantiated allegations of error in the omitted portions
of the record and that we could prospectively state in our
opinion that any future failure to record all portions of a
trial will be grounds for an automatic reversal.
We have nothing before us that would indicate that
anything prejudicial occurred during the unreported portions
of the trial. We agree with the State that it cannot be an
automatic reversible error to omit portions of the record
upon specific waiver of defense counsel. That trap could be
too easily sprung, with no appreciable gain in the interest
of the efficient administration of justice.
Issue 9. The failure of defendant's trial counsel to
insist on recording all parts of the trial and his
affirmative waiver of reporting of the voir dire and opening
and closing statements constituted ineffective assistance of
counsel.
Here Madera claims through his appellate counsel that
Madera was deprived of his Sixth Amendment right to effective
assistance of counsel because his trial attorney
affirmatively waived the reporting of the voir dire and the
opening and closing statements, and did not insist on the
reporting of the charge, the poll of the jury, and bench
conferences. Madera contends that trial counsel's failure to
protect the record created a situation which makes it
impossible for him to receive a meaningful appellate review
of the conviction which resulted in "a draconian sentence."
It is contended that the obligation to protect the record is
within the "range of competence demanded of attorneys in
,
criminal cases;" State v. Rose (1980), - Mont. - 608
P.2d 1074, 1083, 37 St.Rep. 642, 652.
Madera contends that his claim of ineffective counsel
raised here rests on a decision made by trial counsel that
could not possibly have been part of any trial stragedy, had
nothing to do with adequate preparation, and was not the
result of any lack of knowledge of the relevant law. It was
instead a failure to observe the elementary principle of
trial conduct that the protection of the record is a
necessity.
The State contends that under Rose, we stated that in
order to find the attorneys' failures sufficient for
reversal, we must be able to say that there are errors a
reasonably competent attorney acting as a diligent,
conscientious advocate would not have committed, for that is
the constitutional standard.
This issue gives the Court a good deal of concern. The
Court is not in a position to say definitively that no error
occurred in the voir dire, or in the opening and closing
statements, or other omitted portions of the trial record,
because we do not have a record to which we can point in
making such statement. Yet our review of the entire record
in this case leads us to the firm conviction that LaMere and
Madera are guilty of the crimes charged against them beyond
any reasonable doubt. The number and complexity of the
issues raised by counsel, based on the record made by trial
counsel, is an indication that defendant indeed received
effective assistance of counsel during the trial. Our
rationale in handling Seitzinger, involving nearly the same
issues, leads us to the conclusion that such rationale is the
best course for us to adopt in connection with the Madera
appeal. We therefore decline to determine that Madera was
not effectively assisted by counsel during his trial simply
because certain portions of the record were omitted by waiver
of counsel. More definitive allegations of error are
necessary in the unreported portions to give rise to our
conclusion that Madera was deprived of due process.
There is no need for us to adopt a prospective rule that
in the future all cases having portions of the record
omitted, whether by inadvertence or omission of counsel,
shall be an automatic ground for reversal of a conviction.
We will look at each case on its merits when that issue is
raised.
We therefore affirm the convictions of both LaMere and
Madera.
Qa. 3-F Justice
We Concur:
B&bP&@
Chief Jueice
J
; tices
"
Mr. Justice Frank B. Morrison, Jr. dissenting in part:
I concur in all aspects of the majority opinion except
for issue one in the LaMere appeal. This partial dissent is
addressed only to that issue.
LaMere properly noticed alibi witnesses. These
witnesses placed LaMere in Wallace, Idaho on October 2 and 3,
1981. The crime is alleged to have occurred on October 3rd.
The State could destroy the alibi defense and totally
undermine LaMerels credibility by showing that LaMere
received medical attention at St. James Community Hospital in
Butte at 10:30 p.m. on October 2, 1981. Rather than reveal
this evidence, the State sought to trap LaMere. LaMere was
permitted to present his alibi witnesses showing he was in
Wallace, Idaho on October 2 and 3. These witnesses testified
on Friday, March 5. On Monday, March 8, the State notified
LaMere that the rebuttal witnesses would be presented.
LaMerels testimony was already in the record. A continuance
would have availed LaMere nothing. His defense was about to
be destroyed and no continuance could have changed that.
It certainly can be effectively argued that LaMere got
exactly what was coming to him. He apparently presented a
false alibi and the State was permitted to expose the
perjury. Under these circumstances justice would seem to
have been served.
As an appellate jurist I had no right to disregard clear
statutory law regardless of result. Section 46-15-301(3),
MCA provides as follows:
"For the purpose of notice only and to prevent
surprise, the prosecution shall furnish to the
defendant and file with the clerk of the court no
later than five days before trial or at such later
time as the court may for a good cause permit a
list of witnesses the prosecution intends to call
as rebuttal witnesses to the defenses of
justifiable use of force, entrapment, compulsion,
alibi, or the defense that the defendant did not
have a particular state of mind that is an
essential element of the offense charged."
(emphasis supplied)
The facts are undisputed. The State did not furnish a
timely notice. No good cause was shown. In my opinion we
have no alternative but to reverse LaMere's conviction and
remand for a new trial.
The majority opinion seeks to explain good cause on the
basis that the defense did not apprise the prosecution of
what the alibi witnesses were going to testify about and
therefore the State is excused from noticing rebuttal
witnesses. The law does not require the defense to apprise
the prosecution of the substance of an alibi witness'
testimony. The law only requires that the defense give
notice of the witnesses. This was done. The State had every
right to interview the witnesses and if they refused to be
interviewed then the State could take their depositions
pursuant to 46-15-201, MCA.
There simply is no basis for the State's noncompliance
with the notice statute. The State, in violation of the
specific provisions of the statute, was permitted to "ambush"
the defendant with surprise witnesses.
I must confess that I personally feel that LaMere was
shown to be guilty. Under these circumstances it is always
tempting to apply the "clearly guilty" rule. Nevertheless,
the statute is clear and I have no alternative but to vote
for a reversal.
I join in the dissent of Mr. Justice Morrison.