No. 83-521
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1984
THE S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
C H R I S FURLONG,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e E i g h t h 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 C o u n t y of C a s c a d e ,
T h e H o n o r a b l e H . W i l l i a m C o d e r , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For Appellant:
D a n i e l Donovan, G r e a t Falls, Montana
For R e s p o n d e n t :
Mike Greely, Attorney General, Helena, Montana
R o b e r t F. W. S m i t h , A s s t . A t t y . G e n e r a l , H e l e n a
J . Fred B o u r d e a u , C o u n t y A t t o r n e y , G r e a t F a l l s ,
Montana
ON REIIEARING
Submitted: O c t o b e r 15, 1 9 8 4
Decided: November 13, 1 9 8 4
irOi4 . c*
Filed:
-
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant Chris Furlong was convicted of felony theft
following a jury trial in Cascade County and sentenced to ten
years in the Montana State Prison with an additional ten
years added for being a persistent felony offender. Defen-
dant appeals. We reverse and dismiss.
Two battery chargers and a portable welder were stolen
from a garage at a residence in Great Falls sometime between
the late evening hours of March 13 and the ear1.y morning
hours of March 14, 1 9 8 3 .
An officer responding to the theft report passed Fur-
long in his car approximately ten blocks from the residence.
Earlier, at approximately 12 :30 a.m. , another offi.cer pulled
behind Furlong's car and noticed that the trunk was open
about four to six inches and tied with a heavy cord. When
Furlong pulled into the Office Bar, the officer looked
through the opening in the trunk and saw a heavy-duty elec-
trical cord and what appeared to be a battery charger or 2
welder. This officer discussed what he had seen with the
officer who later answered the call regarding the theft.
Both officers recognized the car as Furlong's and Furlong as
the driver of the car.
Furlong was arrested on his way home that night by a
third officer, Sergeant Krakalia of the Great Falls Airport
Police Department. He was given the Miranda warning. At the
time of the arrest, the two battery chargers and the welder
were still in the trunk.
Furlong offered an alibi defense. He states that he
was in the Office Bar and that he loaned his car to another
j-ndividual who drove it while Furlong remained at the bar.
He admits he noticed the trunk was partially open and tied
with a cord when he left the bar but states that he did not
look into the trunk. Instead, when he qot in his car to
leave, he asked a friend who was hrih him what was in the
7rt
trunk. The friend indicated it was "some stuff of Julian's."
Furlong did not question him further about it.
Furlong raises several specifications of error but
three are determinative and each alone constitutes reversible
error. We will consider only those issues. They are as
follows:
1. Whether the State presented sufficient evidence of
the value of the property to sustain a conviction for felony
theft;
2. Whether the evidence supported an instruction on
the lesser-included offense of misdemeanor theft; and,
3. Whether the prosecutor's questioning at trial with
regard to Furlong's silence at the time of arrest constituted
denial of due process.
The first znd second specifications of error can be
considered together. They are that the State failed to
present sufficient evidence of value to sustain a conviction
of felony theft and that the court failed to instruct on the
lesser-included offense of misdemeanor theft.
The testimony as to value was as follows (direct
examination):
" 9 . A l l - right. What do you figure your
welding unit and two battery charges were
worth, Charles? A. Value, approximately
$235.
"Q. Could. you break that down roughly?
A. The welder was--I bought the welder.
I gave $179 for it. And each individual
battery charger is about $25-26 apiece
for those."
On cross-examination:
"Q. Mr. Abresch, you stated what the
pu-rchase price on those items were.
[Sic.] Let me back up here a minute.
You say you bought the welder for $179?
A. Yes, sir.
" 9 . When was that? A. Either in April
or M.ay of 1978.
"Q. And how about the date of the pur-
chase on the battery chargers? A. The
bigger approximately around the same time
[approximatel-y five years before trial1 .
The smaller one maybe three years ago.
"Q. Have you depreciated either--any of
those three items over the years you have
had them for tax purposes or any other
purpose? A. The welder, not the battery
chargers.
"Q. How much has the welder been depre-
ciated to? A. Maybe 100% this year.
"Q. One hundred percent by this year.
That's down to loo%? A. Yes, sir, I
believe it is on the last year or this
year. I'
In refusing to give the instruction for misdemeanor
theft, the District Court found that the State had a prima
facie case for felony theft and therefore the instruction for
misdemeanor theft was improper.
Furlong cites State v. Young IMont. 19831, 669 P.2d.
239, 40 St.Rep. 1474, where we remanded for a new trial
following a conviction for felony theft based on the failure
to instruct on misdemeanor theft. This Court stated:
"Since value is an element of the crime
of theft, and is a fact question, the
question of value must be decided by the
iury. [Citation omitted. 1 Even though
the District Court here may have consid-
ered the evidence of value less than
$15C.00 wea.k and inclusive, it was still
bound. to instruct the jury on the
lesser-included offense of misdemeanor
theft . . ." 669 P.2d at 242, 40 St.Rep.
at 1478.
Further, in State v. Sunday (1980), 187 Kent. 292, 609
P.2d 1188, a conviction for felony theft was reversed when
the State failed to prove the value of the property stolen to
exceed. $1.50. In Sunday, evidence showed that defendant had
stolen a pickup truck, two firearms, a gunbelt and holster,
and from $120 to $125 in cash. However, the State failed to
introduce proof to show the value of the non-cash items.
In addition, section 45-2-101(69), MCA, provides:
" (a) 'Value' means the market value of
the property - - - - and place - -
at the time of the
crime, or, if such cannot be satisfacto-
rily ascertained, the cost of the re-
placement of the property within a
reasonable time after the crime. ...
"(b) When it cannot be determined if the
value of the property is more or less
than $150 by the standards set forth in
subsection (69) (a) above, its value shall
be considered - - - amount - -
- to be an less than
$150. " (Em~hasis added.
And finally, although not cited by Furlong, we recently
held in State v. Sotelo (Mont. 1984), 679 P.2d 779, 41
St.Rep. 568, dealing with whether the defendant had the right
to a negligent homicide instruction as a lesser included
offense of the de1iberat.e homicide charge, that:
"The rule is that the District Court's
instructions must cover every issue or
theory having support in the evidence,
and the inquiry of the District Court
must only be whether or not any evidence
exists in the record to warrant an in-
struction. State v. Buckley (1976), 171
Mont. 238, 557 P.2d 283." 679 P.2d at
781, 41 St.Rep. at 570.
Furlong's arguments on these specifications of error
represent correct statements of the law. Here, the State
provided only evidence of value of the stolen items some
three to five years prior to the date of theft. The statutes
and our prior rulings have consistently required value he
established as of the time and place of the crime. The State
failed to provide the necessary evidence.
The only evidence as to current value of any of the
items was brought out on cross-examination where the owner
stated that the welder, which he had purchased for $ 1 7 9 Five
years prior to the theft, ha6 been depreciated 100 percent.
It is the St.atelsburden to prove the elements of the
crime at trial. When this act was committed the value of the
items taken had to be at least $150 at the time and place of
the theft in order to sustain a charge of felony theft. The
State presented only evidence of velue some three to five
years prior to the crime charged and consequently failed to
meet its burden.
As stated previously, if there is any- evidence to
support the instruction, a lesser included offense instruc-
tion must be given. Sotelo, supra. Here, the owner testi-
fied that the largest and perhaps most valuable item stolen
had been depreciated 1 0 0 percent. While value for tax pur-
poses and fair market value may not be identical, such test-i-
mony certainly qualifies as evidence of reduced value. By
refusing to instruct on misdemeanor theft, the District Court
forced the jury to ignore evidence of lesser value and, if
they believed Furlong guilty, to convict him only of felony
theft. As we held in Young, supra, the question of value is
a jury question and the taking of that determination from the
jury constitutes reversible error. The conviction for felony
theft must be reversed.
The final specification of error which we will consider
is whether the prosecutor's questioning at trial regarding
Furlong's silence at the time of arrest constituted denial of
due process.
The questioning and testimony are as follows:
"Q. Is this the first time you have told
this story to anyone, Mr. Furlong? A.
Except what I have discussed with my
lawyer.
"Q. You didn't think to tell the Police,
the investigator, the County Attorney
this before? A. Nobody ever came to me
and asked me what happened.
"Q. You are charged with a felony crime.
Do you understand that? A. Yes.
"Q. You never thought about just men-
tioning that to somebody, did you? A.
Mentioning what?
"Q. That you have no idea how the prop-
erty got in your car, never crossed your
mind to mention that to anybody? A.
What do you mean?
"Q. When you were arrested by Sergeant
Krakalia, you didn't just happen to
mention, 'I don't know how that property
got in there. I loaned my car to Johnny
and he came back with it1? A. I didn't
say anything.
"Q. But you are going to be arrested on
a felony crime and you don't think to
offer an explanation when you are a
totally innocent victim?
"MR. KAMPFER: Your Honor, I believe
maybe it's necessary at this point that
the jury be instructed that nobody is
required to give a statement in that
situation necessarily and what that would
prove would be merely speculation.
"THE COURT: 3 don't know if that's an
.
adequate rule of law, you know. It's not
an objection to this line of questioning.
It's overruled.
"Q. (By Mr. Snyder) The question, Mr.
Furlong, was you are charged with a
serious offense. You are arrested and
taken to the City Jail that night by
Sergeant Krakalia and other members of
the County Sheriff ' s Department and the
Police Department. Were you so durnk you
didn't care about -- so drunk for a crime
somebody else may have commi-tted? A. I
made one phone call when J was at jail."
Furlong argues that Doyle v. Ohio (1976), 426 U.S. 610,
96 S.Ct. 2240, 49 L.Ed.2d 91, i.s controlling on this issue.
In Doyle the Court stated.:
"Moreover, while it is true that the
Miranda warnings contain no express
assurance that silence will carry no
penalty, such assurance is imp]-icit to
any person who receives the waxninss. In
such-circumstances, it would be fundamen-
tally unfair and a-deprivation of due
- -
rocess to allow - arrested person's
Fhe
:ilence - b e - - to impeach an explana-
t r - used
tion subsequently offerkd at trial." 426
U.S. at 618. (Emphasis added.)
Conversely, the State argues that. State v. Wilson
(Mont. 1981j, 631 P.2d. 1273, 38 St.Rep. 1040, and State v.
White (Mont. 1982), 650 P.2d 765, 39 St.Rep. 1619, cont.rol.
Wilson adopted the United States Supreme Court's position
that Doyle does not apply to pre-arrest silence. Wilsor,,
supra, 631 P.2d at 1277, 38 St.Rep. at 1045; ; Jenkins v.
Anderson (1980), 447 U.S. 231, 100 S.Ct. 2124, 65 ~ . ~ d . 286.
d
Tn White, we held that defendant's post-Miranda, pretrial
silence is a proper subject of cross-examination where defen-
dant raises the issue of his earlier silence and proceeds to
characterize that silence as proof of innocence rather than
as an exercise of his Miranda rights. White, supra, 650 P.2d
Furlong, unlike Wilson, ha.d been assured of his right
to remain silent. He neither raised the issue of his initial
silence nor attempted to characterize his silence as proof of
innocence. The Doyle ruling applies: the State may not seek
to impeach a defendant's exculpatory story, told for the
first time at trial, by cross-examining the defendant about
his failure to have told the story after receiving Miranda
warnings at the time of his arrest. Doyle, supra, 426 U.S.
at 611. The District Court's ruling must be reversed.
111
Fur3.ong has once been put in jeopardy on the felony
the£t charge. The State's failure to present sufficient
evidence to support the charge precludes a retrial on the
same charge. Burks \7. United. States (1978), 437 U.S. 1, 11,
98 S.Ct. 2141, 57 Lt.Ed.2d 1.
Defendant' s conviction is reversed, and the case
dismissed.
--
Chief Justice
We concur: