No. 87-249
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
THOMAS J. CYR,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Robert J. Boyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C. F. Mackay, Anaconda, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
John N. Radonich, County Attorney, Anaconda, Montana
Submitted on Briefs: Oct. 29, 1987
Decided: December 3, 1987
Filed:
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the District Court of the Third
Judicial District or' the State of Montana, in and for the
County of Deer Lodge, the Honorable Robert Boyd presiding.
The appellant was charged with the crime of aggravated
assault, a felony, in violation of S 45-5-202 ( I ) , MCA. He
was found guilty by a jury after a five day trial of the
crime of felony assault. Thereafter a notice was filed
requesting a new trial based on newly discovered evidence.
The motion was denied by the District Court and this appeal
followed. We affirm.
Testimony at trial indicates that Brenda Cyr,
appellant's wife, met two men from Butte, Montana at an
Anaconda, Montana, bar, on June 25, 1986. One of the men,
Mark Spolar, testified that he understood that Brenda and her
husband were separated. During the afternoon of June 25,
1986, Brenda, in the company of Spolar and others, frequented
several bars in the city of Anaconda. Throughout the late
afternoon and evening, several encounters were had with the
appellant who was trying to get his wife to come home. In
one of the encounters, Brenda went over to the appellant's
car, he jerked her around, grabbed her by the throat and
cursed her, all of which made her more reluctant to accompany
the appellant to their home.
After frequenting several bars most of the afternoon
and early evening, Spolar, with several of his motorcycle
club friends decided to return to Butte. When they went
outside, one of them, after getting on a motorcycle and
starting off, was pursued by the appellant in his car. This
appeared to them to be an attempt to run them over.
During the day when appellant went to one of the bars
where the group was partying, and after he had confronted
several of them, several members of the group reported
seeking a gun on appellant, though he did not use it in a
threatening manner. However, the several of the members were
alerted that he was armed. This called for some discussion,
particularly after his alleged attempt to run down the
motorcyclists.
At closing time, Mark Spolar, Manuel Madrid, and Brian
Shepard, went outside the Garden Bar, where they again
encountered the appellant, seated in his car. Manuel Madrid
by that time had obtained a hand gun from Jean Woodbury, one
of the women in the party, so that they would have some
"equal protection" in case they were confronted by the
appellant. About that time, Spolar confronted the appellant
in his car and he attempted to get him out of his car and in
the process kicked out at least one window. At that time the
appellant fired his pistol, hitting Mark Spolar in the groin
area. Several more shots were fired by the appellant, and at
that time Manual Madrid opened fire on the appellant. One of
the shots fired by Madrid wounded appellant's small son who
was seated inside the appellant's car.
An investigation followed and the appellant and Madrid
were both charged by the authorities of Deer Lodge County.
The appellant received a nine year sentence with four years
suspended. Also, his sentence was enhanced by an additional
three years, to be served consecutively with the above
sentence, for the use of a firearm in the commission of the
offense.
Three issues are presented for review by this Court:
(1) Whether there was sufficient evidence before the
jury upon which to base their verdict.
(2) Did the District Court err in refusing to grant
appellant's motion to dismiss at the close of the State's
case?
(3) Did the District Court err in refusing to grant
the appellant's motion for a new trial on the basis of newly
discovered evidence?
Concerning issue 1, sufficiency of the evidence, there
is no dispute that the appellant shot Mark Spolar. There
were witnesses other than Spolar to that effect, and Spolar's
testimony is sufficient of itself to convict. Spolar ' s
activities in kicking out the window were not sufficient, and
were not found to be sufficient by the jury, for the
appellant to open fire, shooting through the door of his car
and seriously wounding Spolar. This is a question for the
jury. The jury heard the evidence in the five-day trial and
their verdict indicates that after listening to all witnesses
they found the appellant guilty.
In proving the offense of felony assault, the State had
to prove the following elements: (1) purposely or knowingly
cause; (2) bodily injury; (3) to another; (4) with a
weapon. Section 45-5-202(2), MCA.
In State v. Oliver (Mont. 19871, 742 P.2d 999, 1002, 44
St.Rep. 1567, 1572, we stated:
The standard for review of the
sufficiency of the evidence is:
"Whether, after viewing the evidence in
the light most favorable to the
prosecution, any rational trier of fact
could have found the essential elements
of the crime beyond a reasonable doubt."
Jackson v. Virginia (1979), 443 U.S.
307, 319, 99 S.Ct. 2781, 2787, 61
L.Ed.2d 560, 573.
Under this standard there was sufficient legal evidence to
support the jury's verdict.
The second issue is whether the court properly denied
defendant's motion to dismiss. Here the appellant's argument
is tied closely to the first issue where we found sufficient
evidence to convict. As noted above, there was substantial
credible evidence to support the charges and therefore the
trial court correctly denied appellant's motion.
Issue 3, did the court properly deny the motion for a
new trial? Section 46-16-702, MCA, provides for the granting
of a motion for new trial "in the interest of justice."
Where the basis for the motion for new trial is
newly-discovered evidence, the long-standing criteria for
evaluating the motion has been set forth by this Court in
State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052. In
Greeno this Court established the following criteria:
(1) That the evidence must have come to
the knowledge of the applicant since the
trial; (2) that it was not through want
of diligence that it was not discovered
earlier; (3) that it is so material
that it would probably produce a
different result upon another trial;
(4) that it is not cumulative
merely--that is, does not speak as to
facts in relation to which there was
evidence at the trial; (5) that the
application must be supported by the
affidavit of the witness whose evidence
is alleged to have been newly
discovered, or its absence accounted
for; and (6) that the evidence must not
be such as will only tend to impeach the
character or credit of a witness.
Greeno, 135 Mont. at 586, 342 P.2d at 1055. A11 six of the
criteria are stated in the conjunctive, and as noted below,
defendant fails to establish at least the first three.
In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d
346, 351, this Court held that the decision to grant a new
trial lies within the discretion of the trial judge and will
not be disturbed on appeal unless a clear abuse of discretion
is shown. We have also noted that motions for a new trial
based on newly-discovered evidence are not favored because
the defendant has already had time, prior to trial, to
prepare his case. Greeno, supra. Two recent cases cited the
criteria in Greeno. State v. Kutnyak (Mont. 1984) , 685 P. 2d
901, 909, 41 St.Rep. 1277, 1287; and State v. Short (Mont.
1985), 702 P.2d 979, 984, 42 St.Rep. 1026, 1032. In Kutnyak,
it was only necessary to cite three of the criteria, but we
note that all six are appropriate.
Noting the evidence presented in light of the Greeno
criteria, we note a bullet hole in the car that was
previously unfound was observed by appellant's counsel during
trial. He had ample opportunity to question the State's
expert witnesses on firearms, but now alleges he did not
appreciate the significance of that evidence. However, the
vehicle had been impounded on the day of the shooting, June
26, and was available for inspection and examination by the
appellant during the whole period of some six months. Having
failed to bring this forward, the evidence is not sufficient
to set aside the verdict.
Concerning the second criterion for evaluating
newly-dicovered evidence, regarding whether it could have
been discovered earlier, the appellant had considerable time
to find this evidence. Much of the above analysis applies
here. Having failed to bring it to the attention of the
court such failure comes too late in this trial to set aside
the verdict.
A third criterion is that appellant must show that the
presence of the evidence at trial would probably have
produced a different result. As noted above, there was no
other supporting evidence at trial for the contention that he
now makes claiming Spolar had a gun at the time he approached
the appellant's vehicle. This "new evidence" does not
resolve a disputed point in the appellant's favor, rather it
attempts to raise an entirely new issue which is not
supported by any other facts in evidence. Further, this "new
evidence" is not necessarily inconsistent with the testimony
of the trial. Manuel Madrid apparently fired four shots at
the appellant's vehicle and some were fired from an angle
behind the vehicle as the appellant sped away from the scene
of the trouble.
The trial judge heard the appellant's argument for a
new trial and ruled against that motion and stated the
following:
There certainly has not been any
exhibition of diligence in examining the
vehicle, because the Court notes it was
impounded on or about the 27th of June,
and subsequently made available to the
witness for the State, just as it was
readily available for any witnesses that
the defendant wished to present. It
does not appear that this is in fact new
evidence, but is, at most, evidence
which was not fully explored by the
Defendant, and the Motion for New Trial
is denied.
The decision of the District Court is affirmed.
We concur: //
Justices
Mr. Justice John C. Sheehy, specially concurring:
I agree with the result based on the jury verdict.