NO. 82-149
I N THE SUPREME COURT OF THE STATE O F MONTANA
1983
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
WILLIAM J . GRAY,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of the Fourth 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 Lake
Honorable James B. Wheelis, Judge p r e s i d i n g .
Counsel of Record:
For Appellant:
John R. Frederick, Polson, Montana
For Respondent:
Hon. M i k e 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
Richard P. Heinz, County A t t o r n e y , P o l s o n , Montana
Submitted on b r i e f s : October 26, 1982
Decided. : February 1 4 , 1383
Filed: FEe 14'11c]3
-.. - -
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Defendant William J. Gray was convicted of negligent
arson, a misdemeanor, following a jury trial in the District
Court of the Fourth Judicial District, Lake County. Gray
was sentenced to six months in the county jail and fined
$500. Gray appeals. We affirm the District Court.
The following issues are presented for review:
1. Was the grapho analyst's testimony, as to defendant's
mental state, properly excluded.
2. Did the admission into evidence of State's Exhibit
No. 4 deprive defendant of a fair trial.
3. Did the trial court's instruction on the lesser
included offense of negligent arson constitute reversible
error.
4. Did the trial court abuse its discretion in imposing
the sentence.
5. Did the trial court's reason for imposition of the
sentence manifest judicial vindictiveness.
On the evening of June 17, 1981, Gray, who had been living
in Phoenix, Arizona, arrived in Polson at the house where his
wife, Phyllis, was residing. The house, which Gray built,
was jointly owned by him and his wife.
Gray and his wife had been living apart for about a year
because of marital problems. The purpose of Gray's visit to
Polson to deliver the couple's ten year old son to the wife.
Phyllis allowed her husband to spend the night in the house.
Gray had asked for a sleeping pill which he was given.
He was also drinking brandy. Gray began unloading his car
which was parked in the attached garage. Phyllis noticed
the car was running and informed Gray that she was going to
turn the car off. Gray grabbed the keys from the ignition
before his wife could get them. The garage door was closed
and Gray had p l a c e d a s m a l l l o g on t h e g a s p e d a l t o keep t h e
c a r running.
About m i d n i g h t , P h y l l i s went t o bed. She c o u l d s t i l l
h e a r n o i s e s coming from t h e g a r a g e . About 1:30 a.m. s h e was
awakened by t h e s m e l l of smoke. She went i n t o t h e g a r a g e
and found Gray l y i n g on h i s back on t h e f l o o r and a f i r e i n
a p i l e of l o g s n e a r t h e c a r . She shook Gray b u t r e c e i v e d no
response. She r e t u r n e d t o t h e house where s h e t e l e p h o n e d
h e r f a t h e r who l i v e s n e a r b y . When s h e r e t u r n e d t o t h e
g a r a g e , Gray was walking around. She opened t h e g a r a g e door
and h e d r o v e t h e c a r o u t s i d e . Her f a t h e r a r r i v e d w i t h a
f i r e e x t i n g u i s h e r and was a b l e t o e x t i n g u i s h t h e f i r e b e f o r e
t h e f i r e department a r r i v e d . The f a t h e r t e s t i f i e d t h a t when
he a r r i v e d a t t h e s c e n e o f t h e f i r e , h e found c a r p e t s ,
r u b b e r , c a n v a s , and l o g s on f i r e , w i t h p a i n t c a n s , propane
b o t t l e s , a f u e l o i l c a n , and t r a s h on t h e g a r a g e f l o o r . The
p a i n t c a n s had been broken open. The f i r e had n e a r l y gone
through t h e s h e e t rock c e i l i n g .
The j u r y found Gray g u i l t y of n e g l i g e n t a r s o n , a m i s -
demeanor. S e c t i o n 45-6-102, MCA, provides:
"A p e r s o n commits t h e o f f e n s e of n e g l i g e n t a r s o n
i f he p u r p o s e l y o r knowingly s t a r t s a f i r e o r
c a u s e s a n e x p l o s i o n , whether on h i s own p r o p e r t y
o r p r o p e r t y of a n o t h e r , and t h e r e b y n e g l i g e n t l y :
. . . (b) p l a c e s property of another i n danger
of damage o r d e s t r u c t i o n . "
During t h e t r i a l , d e f e n s e w i t n e s s e s i n c l u d e d a p s y c h i a t r i s t
who t e s t i f i e d a s t o G r a y ' s m e n t a l s t a t e . I n addition, the
d e f e n s e c a l l e d a grapho a n a l y s t , M r s . Maddox, t o t e s t i f y a s
t o Gray's mental s t a t e . During t e s t i m o n y i n chambers, M r s .
Maddox a n a l y z e d a w r i t i n g made by Gray j u s t b e f o r e h e l e f t
Phoenix and one made w i t h i n a month a f t e r t h e f i r e . M r s .
Maddox t e s t i f i e d t h a t a h a n d w r i t i n g a n a l y s t compares " a
number of f e a t u r e s i n w r i t i n g , s u c h a s a n a l y s i s of a n g l e s ,
p r e s s u r e , and s l a n t , v a r i a t i o n s i n s t r o k e , t o make d e t e r -
m i n a t i o n s of t h a t p e r s o n a l i t y , s t a t e of mind, comparison of
various documents." Mrs. Maddox first testified as to
Gray's general personality characteristics:
"What I found is that Bill Gray, as a per-
sonality, is the kind of gentleman who
has a great deal of trouble in finding
in other people what he might happen to
be feeling. He's the sort of person who
feels that I'm a grown man, I have to deal
with this. I can't put it off onto someone
else. It's not their problem. It's my
problem. I created the mess. I have to
solve it, and the other thing that was
consistent throughout all of this time
is that there is a great deal of sensitivity
in this gentleman. He is very sensitive
to hurts from other people. He's very
hurting emotionally. The writing that I
saw just prior was verified by Mr. Tom
Habne, Mr. Gray's attorney from Phoenix,
to have been written just prior to his
leaving Phoenix, seemed quite logical.
He was at this time discussing some
divorce items, and his writing at that
time showed a lot of self control, a lot
of logic in the way he was approaching
things.
"The next sample that I saw was dated sometime
in August after the event for which Mr. Gray
has been charged, and at that time his writing
showed a lot of emotional fluctuation. I feel
that inbetween those two times something snapped,
something was not according to the usual pattern,
because the writing in August shows a lot of
emotional variation. His writing goes from
being sensitive to being withdrawn to being
very euphoric to being very depressed, a very
unstable kind of writing."
Mrs. Maddox was then questioned as to his state of mind at
the time of the fire to which she responded:
"It's very hard for me to be specific about
the time of the fire, as the writing I saw
was dated sometime just before he left
Phoenix, and then, like I say, within a
month after the fire. All I can say is
that there is a drastic change in there
precipitated by what, I don't know, but
the potential for him to act out all these
feelings was there prior to his leaving
Phoenix, but what precipitated the acting
out of those feelings, I would not be able
to even presume from the handwriting."
Her testimony was excluded from the jury.
The State argues that Mrs. Maddox's testimony was not
relevant. We agree. Gray's state of mind the night he set
the fire is at issue. Negligent arson requires a defendant
to purposely or knowingly start a fire. 45-6-102, MCA. Mrs.
Maddox's testimony did not deal with an analysis of writing
made by Gray on the evening of the fire. She was unable to
testify as to Gray's mental state on the night of the fire.
Her testimony was not relevant. Evidence which is not
relevant is not admissible. Rule 402, Mont. R. Evid. The
District Court properly excluded the testimony of the hand-
writing analyst.
Gray, in his second issue, contends that the admission
of a note, State Exhibit No.4, into evidence was so inflam-
matory that its natural tendency was to prejudice the jury
and deprive him of a fair trial. The note from Gray to his
wife was left on her bed on December 19, 1980. The note
read:
"Phyllis. Please get ready for bed and
come to the basement where I am at and be
with me tonight. Tonight I need you with
me for the last tine ever. Bill."
The trial judge has a latitude of discretion in passing
on the admissibility of evidence. State v. Pendergrass
(l978), 179 Mont 106, 112, 586 P.2d 691, 694; State v.
Rollins (1967), 149 Mont. 481, 484, 428 P.2d 462, 464. Even
if evidence is improperly admitted, there is reversable
error only if the defendant is prejudiced. State v. Paulson
(1975), 167 Mont. 310,315, 538 P.2d 339, 342; State v.
Kuilman (1941), 111 Mont. 459, 462, 110 P.2d 969, 970.
"The test of prejudicial error requiring
reversal is this: Is there a reasonable
possibility that the inadmissable evidence
might have contributed to the conviction?"
State v. Langan (1968), 151 Mont. 558, 568,
445 P.2d 565, 570.
We fail to see how the note could have been so inflam-
matory as to prejudice the jury and deprive Gray of a fair
trial. We find that the note could not have reasonably
contributed to the jury verdict.
The third issue presented by Gray alleges error because
of the jury instruction of a lesser included offense. Gray
was charged with deliberate arson. Section 45-6-103(1),
MCA, provides:
"A person commits the offense of arson when,
by means of fire or explosives, he knowingly
or purposely: (a) damages or destroys an
occupied structure which is property of
another without consent; or (b) places another
person in danger of death or bodily injury."
At the conclusion of the defense, the State requested an
instruction on negligent arson.
Gray was found guilty on the negligent arson instruction.
He contends that the inclusion of the lesser included offense
instruction resulted in unfair surprise as he only presented
a defense for deliberate arson.
Gray relies on State v. Bashor (1980) Mont. I
614 P.2d 470, 37 St.Rep. 1098, where defense counsel objected
to a State offered instruction on a lesser included offense.
The State withdrew the instruction. The defendant then
appealed the court's failure to give the included offense
instruction. This Court refused to consider the appeal
because the defendant not only failed to offer the instruction
but also objected to the instruction when it was offered by
the State.
In the present case, the included offense instruction
was offered by the State and given by the court. Gray
contends that it was error for the court to give the included
offense instruction over his objection. Section 46-16-603(3)
provides:
"The defendant may be found guilty of an
offense necessarily included in the offense
charged or of an attempt to commit either
the offense charged or an offense necessarily
included therein if the attempt is an offense."
T h i s C o u r t h a s h e l d t h a t a n i n s t r u c t i o n of a n i n c l u d e d
o f f e n s e i s r e q u i r e d where t h e r e i s some e v i d e n c e t o s u p p o r t
the lesser offense. S t a t e v . Gopher ( 1 9 8 1 ) , Mont. I
633 P.2d 1195, 1197, 38 St.Rep. 1521, 1524; S t a t e v . Hamilton
(1980) Mon t. , 605 P.2d 1 1 2 1 , 1129, 37 St.Rep. 70, 77.
"Montana's s t a n d a r d f o r d e t e r m i n i n g
whether t h e r e h a s been s u f f i c i e n t e v i d e n c e
a s t o a theory introduced t o warrant t h e
granting of an i n s t r u c t i o n i s set f o r t h i n
S t a t e v. Buckley (1976) , Mont. ,557 P . 2d 283,
33 St.Rep. 1204, 1207:
II 1
. . . the d i s t r i c t court's instructions
must c o v e r e v e r y i s s u e o r t h e o r y h a v i n g s u p p o r t
i n t h e e v i d e n c e , and t h e i n q u i r y o f t h e d i s t r i c t
c o u r t must o n l y be whether o r n o t any e v i d e n c e
e x i s t s i n t h e record t o warrant an i n s t r u c t i o n
on m i t i g a t e d d e l i b e r a t e h o m i c i d e . '
" T h i s i s t h e s t a n d a r d t o be used when d e a l i n g
w i t h a l l lesser i n c l u d e d i n s t r u c t i o n s , r e g a r d l e s s
of t h e offense." S t a t e v . Bouslaugh ( 1 9 7 8 ) ,
176 Mont. 78, 81, 576 P.2d 261, 263.
A t t r i a l e v i d e n c e was p r e s e n t e d t o s u p p o r t n e g l i g e n t
arson a s well a s d e l i b e r a t e arson. The S t a t e moved f o r
i n c l u s i o n of a n e g l i g e n t a r s o n i n s t r u c t i o n . The j u r y found
t h a t t h e r e was e v i d e n c e t o s u p p o r t t h e n e g l i g e n t a r s o n
instruction. Montana c a s e law and s t a t u t e p r o v i d e t h a t a
d e f e n d a n t c a n b e found g u i l t y of an i n c l u d e d o f f e n s e . Gray
c o u l d n o t have been u n f a i r l y s u r p r i s e d when h e h i m s e l f
presented evidence t o support t h e n e g l i g e n t arson i n s t r u c t i o n .
The D i s t r i c t C o u r t a c t e d p r o p e r l y i n i n c l u d i n g a n i n s t r u c t i o n
on t h e i n c l u d e d o f f e n s e of n e g l i g e n t a r s o n .
The f o u r t h i s s u e r a i s e d by Gray i s t h a t t h e s e n t e n c e
imposed by t h e D i s t r i c t C o u r t was a n a b u s e of d i s c r e t i o n .
"This Court has c o n s i s t e n t l y held t h a t i f a sentence i s
w i t h i n t h e l i m i t s p r o v i d e d by s t a t u t e , i t i s n o t a n a b u s e of
discretion." S t a t e v . G a r r i d o (1981) 1
- Mont. , 621 P.2d
Section 45-6-102(2), MCA, provides:
"A person convicted of the offense of negligent
arson shall be fined not to exceed $500 or be
imprisoned in the county jail for any term not
to exceed 6 months, or both. "
The District Court in sentencing Gray provided:
"THE COURT ORDERS that the Defendant be pun-
ished by confinement in the Lake County Jail
for a term of six (6) months and fined the
sum of Five Hundred Dollars ($500.00).
"THE COURT ANNOUNCES the reason for the
sentence to be that the action of the Defendant
constituted a deliberate action under the
circumstances stated in the trial for which
the Defendant should be punished."
The sentence is within the limits imposed by the statute
and, therefore, not an abuse of discretion.
The last issue raised is that the sentence imposed
indicates judicial vindictiveness. Defense counsel argues
that because the defendant is a 38 year old man employed as
a school teacher and a captain in the army reserves with no
criminal record of any type, the giving of the rnaximum
sentence indicates judicial vindictiveness. There is an
absence of any statement or other evidence to indicate
vindictiveness towards the defendant on the part of the
sentencing judge. We find it improper for defense counsel
to have suggested the presence of judicial vindictiveness
without evidence to support the claim and we summarily
dismiss the issue.
Af firmed.
We concur:
Mr. Justice Daniel J. Shea, concurring in part and dissenting
in part:
I would affirm the ludgment but I would vacate the
sentence and remand for resentencing. Defendant was charged
with deliberate arson, a felony, but the jury convicted him
only of a lesser-included offense, negligent arson, a
misdemeanor. Each of the charges requires a deliberate act
of setting the fire. But felony arson requires that the
defendant intended by setting the fire to cause the resulting
harm. Misdemeanor arson, on the other hand, requires only
that by an intentional setting of the fire the defendant
negligently placed "property of another in danger of damage
or destruction." The jury, by finding defendant guilty of
negligent arson, found that he negligently placed the
property of another in danger of damage or destruction, and
therefore that he did not intentionally cause the resulting
harm.
The sentence of the District Court is unclear as to
whether he was sentencing defendant only for deliberately
setting the fire or for deliberately causing the damage
resulting from the fire he deliberately set. This lack of
clarity results in the possibility that defendant may in
essence have been punished the maximum for the misdemeanor
because the sentencing court believed the defendant had
actually committed the felony rather than the misdemeanor.
If this is so, this is an impermissible basis for imposing
the maximum sentence--even though it is within the maximum
permitted by statute for the misdemeanor conviction. This is
yet another reason why I cannot abide by the bland statement
of the majority that a sentence is not an abuse of discretion
if it is within the limits provided by the statute. Such a
statement gives absolute discretion to the trial court--and
that is simply a euphemism for unrestrained discretion.