No. 86-584
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
PI-aintif and Respondent,
f
-vs-
JAMES RINGMAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Bozeman, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Clay R. Smith, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marty Lamhert, Deputy County Attorey, Rozeman
Submitted on Briefs: Aug. 6, 1987
Decided: November 5 , 1987
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4%-
Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
This is an appeal from the District Court, Eighteenth
Judicial District, Gallatin County. Appellant was convicted
in the District Court of one count of felony assault, S
45-5-202 (21, MCA, and one count of witness tampering, S
45-7-206, MCA. We affirm.
Defendant Ringman raises four issues on appeal:
1. Did the trial court err in granting the State's
motion in limine to exclude defendant's expert witness '
testimony that because of intoxication, defendant could not
form the requisite intent that is an element of the crime of
witness tampering?
2. Did the trial court err in granting the State's
motion to consolidate the charges of witness tampering and
assault in the same trial?
3. Did the trial court fail to properly instruct the
jury on the law of self-defense as it concerns the
defendant's duty to retreat?
4. Did the trial court err in designating the defendant
a dangerous offender?
On March 11, 1985, defendant Bingman was tending bar at
Mickee's Bar in Belgrade. Tony Wagner arrived at the bar at
approximately 11:OO p.m. and began drinking whiskey. At one
point the defendant asked Wagner to remove from the premises
a gun he had brought with him. He did so immediately and
returned to the bar. There is some indication that Wagner
became belligerent and difficult sometime later.
The events following are somewhat unclear. The
defendant testified that he asked Wagner to go back to the
office with him because he had begun playing with a knife and
t h r e a t e n i n g t h e customers. Wagner d e n i e d t h a t h e t h r e a t e n e d
anyone. He s t a t e d t h a t i t was t h e d e f e n d a n t who had b e e n
t a l k i n g a b o u t b e a t i n g u p a n o t h e r man who had a r e p u t a t i o n a s
a "bad man." Wagner t e s t i f i e d t h a t h e t o l d d e f e n d a n t h e was
a " b a d man" and h e ' d h a v e t o f i g h t Wagner, t o o , whereupon t h e
d e f e n d a n t t o o k him b a c k t o t h e o f f i c e s o t h e y c o u l d s e t t l e i t
l i k e gentlemen. D e f e n d a n t Bingman and Wagner e a c h c l a i m t h e
other threw the first punch starting the fight that gave
Wagner a broken nose; facial contusions and lacerations;
various bruises; and a s p l i t open h e a d . Bingman suffered
o n l y a s l i g h t r e d d i s h s w e l l i n g on h i s f a c e . Wagner d o e s n o t
remember what occurred but i s e v i d e n c e t h a t Bingman
there
s t r u c k him w i t h a p o o l c u e and a l s o punched him f o u r o r f i v e
times in the face with fists adorned w i t h several iagsed
rings.
The police were called and Wagner was arrested for
d e t o x i f i c a t i o n s o t h a t he could be taken t o a h o s p i t a l f o r
treatment. The d e f e n d a n t was a r r e s t e d f o r a s s a u l t .
The c h a r g e o f w i t n e s s t a m p e r i n g was b a s e d on e v e n t s t h a t
occurred April 8, 1985. The defendant, out on bond,
encountered Wagner in The Friendly Tavern in Belgrade.
T e s t i m o n y i n d i c a t e s Bingman o f f e r e d Wagner a p a r t y , $ 1 , 0 0 0 , a
motorcycle and a t r i p out of town i f h e would p r o m i s e t o
forego testifying to the assault. Wagner refused. The
d e f e n d a n t was c h a r g e d w i t h w i t n e s s t a m p e r i n g on a s e p a r a t e
information.
The S t a t e made a m o t i o n t o c o n s o l i d a t e t h e two c a u s e s
p u r s u a n t t o S 46-11-404 (1), MCA. J u d g e G a r y , who had b e e n
presiding over the assault charge, granted the motion to
c o n s o l i d a t e t h e c h a r g e s i n one t r i a l .
Issue I.
Appellant first takes issue with the trial court's
decision to exclude the testimony of appellant's expert
witness, Dr. Kurtz, to show that defendant was under the
influence of the drug Stadol at the time he committed the
witness tampering. Appellant argues that this evidence would
go directly to the defense of intoxication which prevented
him from forming the requisite mental state. See S 45-2-203,
MCA, (1985). It is unclear from the record what the
substance of Dr. Kurtz's testimony would have been. We find
compelling the State's argument that no offer of proof was
made pursuant to Rule 103 of the Montana Rules of Evidence.
Although the record does indicate the general nature of the
intended direct examination, we can only guess what Dr.
Kurtz's responses would have been. Generally, there can be
no reversible error when the court cannot ascertain the
evidence excluded by the granting of a motion in limine.
Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613
P.2d 982, 987. See also State v. Hall (1979), 183 Mont. 511,
515, 600 P.2d 1180, 1182-83. There may be an exception to
this rule, however, when the offer of evidence is refused on
substantive grounds rather than evidentiary grounds. State
v. Bay (Ariz. 1986), 722 P.2d 280, 283; Jones v. Pak-Mor Mfg.
Co. (Ariz. 1985), 700 P. 2d 819, 827; State v. Kaiser (Ariz.
1973), 508 P.2d 74, 76.
In Bay, the Arizona Supreme Court held that because the
question of whether the defense of insanity may be
established solely by lay testimony was a question of
substantive law, appellate review of an order denying expert
testimony was permitted. Bay, 722 P.2d at 283-84. This is
directly analogous to the instant case. The trial court
determined that an expert witnesses could only testify to his
or her personal knowledge of a particular incident of
intoxication. Since Dr. Kurtz had not been present during
the witness tampering incident he could not testify. The
question becomes whether intoxication can be established
solely by lay testimony. Accordingly, this falls within the
exception and we will review this issue.
This Court has pointed out that intoxication is not a
defense, but merely a fact the jury may consider in
determining the mental state of the defendant. State v.
Ostwald (1979), 180 Mont. 530, 536, 591 P.2d 646 I 650. But
for the purposes of our discussion and analysis, we will
accept defendant's claim that his defense is not that of a
mental disease or defect but purely that of gross
intoxication at the time of committing the crime so as to
negate the element of specific intent. Section 45-2-203,
MCA, (1985) provides:
A person who is in an intoxicated or drugged
condition is criminally responsible for conduct
unless such condition is involuntarily produced and
deprives him of his capacity to appreciate the
criminality of his conduct or to conform his
conduct to the requirements of law. An intoxicated
or drugged condition may be taken into
consideration in determining the existence of a
mental state which is an element of the offense.
It is the second sentence that is pertinent to this
discussion. (As an aside, we note that this statute has been
amended to preclude voluntary intoxication as a defense.
Section 45-2-203, MCA, (as amended 1987) . ) The sole issue,
then, is whether the defense of intoxication may be
established solely by lay testimony. We hold that it may.
Expert testimony is not generally probative in a case
where the intoxication does not rise to the defense of mental
disease or defect. Unless the expert had personal knowledge
of the incident he could not testify to defendant's
intoxication at the time of the commission of the charged
offense. State v. Ostwald (1979), 180 Mont. 530, 536, 591
P.2d 646, 649. See State v. Gray (Mont. 1983), 659 P.2d 255,
257, 40 St.Rep. 199, 202 (graphoanalyst's testimony
irrelevant because she was unable to testify to mental state
of defendant at time of commission of crime). Further,
expert testimony is not required to establish the
intoxication defense. Ostwald, 591 P.2d at 650.
The defendant argues that if a person is so intoxicated
that he cannot control his spoken words it has a direct
bearing on whether he can form the requisite mental state.
While this may contain some truth, an expert may not testify
whether the defendant has the ability to conform his conduct
to the requirements of the law. State v. Peavler (1981), 195
Mont. 379, 382, 636 P.2d 270, 271. See also 5 46-14-213 (2),
MCA, (1985). Peavler involved the defense of alcoholism that
rose to mental defect or disease; the instant case involves a
defense based on a particular incident of intoxication. But
for the purposes of the content of expert testimony we make
no distinction. It would be inconsistent to disallow such
testimony regarding conduct in cases where intoxication rose
to mental defect or disease but allow it where a single
incident of intoxication was alleged purely to negate
specific intent.
Several witnesses, including the victim, testified to
the issue of Bingman's intoxication at the time of his
conversation in the Friendly Tavern. His girlfriend
testified to witnessing him pass out on and off in the car on
the way to the tavern and to witnessing him taking several
shots of Stadol throughout the day and evening. The effects
of the Stadol were described by both the defendant and his
girlfriend. Even the victim said, "He [the defendant] looked
to be drunk."
This testimony amply supports defendant's defense. He
was not prevented from presenting adequate evidence
concerning his intoxication. The trial judge did not abuse
his discretion in granting the State's motion in limine to
exclude Dr. Kurtz's testimony.
Issue 11.
Appellant's next point of contention presents an issue
of first impression in this jurisdiction. This case
originated as two charges made by two separate informations.
The two charges, felony assault and witness tampering, were
consolidated for trial on the State's motion. Appellant
argues that because the two causes were filed in different
departments of the Eighteenth Judicial District, they were
improperly joined and, as such, highly prejudicial. Section
46-11-404, MCA, ( 1 9 8 5 ) reads in pertinent part:
(1) An indictment, information, or complaint may
charge two or more different offenses connected
together in their commission, different statements
of the same offense, or two or more different
offenses of the same class under separate counts.
If two or more indictments, informations, or
complaints are filed in such cases in the same
court, the court may order them to be consolidated.
(4) If it appears that a defendant or the state is
prejudiced by a joinder of related prosecutions or
defendants in a single charge or by joinder of
separate charges or defendants for trial, the court
may order separate trials, grant a severance of
defendants, or provide any other relief as justice
may require.
Appellant's argument that the charges were not brought
in the same court because they were brought in different
departments of the Eighteenth Judicial District lacks merit.
The division of multi-judge districts does not create
multiple courts. The statutory language is clear.
(2) The judges elected or appointed to hold office
in each judicial district having more than one
judge must divide the court into departments,
prescribe the order of business, and make rules for
the government of such court. Each department
shall be numbered, and each judge shall be assigned
to one of such numbered departments. (Emphasis
supplied.)
Section 3-5-403 (2), MCA, (1985).
The Eighteenth Judicial District is only one court in which
both charges were brought.
Appellant also argues that the two charges were
improperly joined because they are not sufficiently
"connected together in their commission." Section
46-11-404 (I), MCA, (1985). This is an issue of first
impression not yet addressed by this Court. Since Montana's
joinder statute is similar to Rules 8 and 14 of the Federal
Rules of Criminal Procedure, we will take some guidance from
federal law and other jurisdictions with similar statutes.
First, we must determine if joinder was proper under S
46-11-404 (1). The Fifth Circuit was held that counts of tax
fraud and witness tampering are "two or more transactions
connected together." United States v. Scott (5th Cir. 1981),
659 F.2d 585, 589. In that case, the court reasoned that the
defendant Is attempted intimidation of a witness was for the
sole purpose of escaping criminal liability on the tax
counts. There was, then, a direct relationship between the
two counts. 659 F. 2d at 589. We also find two cases from
Kansas very persuasive.
In State v. Moore (Kan. 1979), 602 P.2d 1359, the Kansas
Supreme Court held that counts of aggravated robbery and
kidnapping were "connected together" with the charge of
corruptively influencing a witness and therefore were
properly joined. The Kansas statute reads as follows:
Two or more crimes may be charged against a
defendant in the same complaint, information or
indictment in a separate count for each crime if
the crimes charged,. . . are of the same or similar
character or are based on the same act or
transaction or on two or more acts or transactions
connected together or constituting parts of a
common scheme or plan.
Kan. Stat. Ann. S 22-3202 (1981).
The Kansas court held that there could be joinder of two
informations against a single defendant if the crime could
have been joined in a single information. Moore, 602 P.2d at
1361-62. The Kansas court reasoned that the charges were
connected together because the robbery and kidnapping charges
"precipitated" the corruptly-influencing-a-witness charge.
This reasoning was also used to hold that joinder of
aggravated assault and a subsequent attempted murder was
proper. State v. Pondexter (Kan. 1983), 671 P.2d 539, 547.
The attempted murder was an effort to prevent the victim of
an earlier aggravated assault from testifying. Reasoned the
court, "Clearly, the crimes charged in the earlier action
precipitated the [attempted murder.]" Pondexter, 671 P.2d at
547.
Several federal courts have held joinder was proper in
cases where the second charge is precipitated by a previous
charge. See United States v. Ritch (1st Cir. 1978), 583 F.2d
1179, 1181 (charge of bail-jumping or escape is sufficiently
connected with previous crime if motive was to avoid
prosecution and stems directly from the initial charge);
Williams v. United States (9th Cir. 1959), 265 F.2d 214, 216
(obstruction of justice charge was properly joined with
charge of statutory rape when object was to affect victim's
testimony concerning rape charge).
This analysis is easily applied in the instant case.
Bingman clearly was attempting to avoid criminal prosecution
when he offered Wagner a party, a trip out of town, $1,000
and a motorcycle. The assault charge provides a motive for
and precipitates the tampering charge. We hold that the two
charges were properly joined.
Defendant argues that even if there was proper joinder
under § 46-11-404(1), he was prejudiced by such joinder. The
standard for analyzing prejudicial joinder is set out in
State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190.
Determining whether there has been prejudicial
joinder involves weighing the prejudice incurred by
the defendant because of a joint trial against the
judicial economy resulting from a joint trial.
This balancing process is left to the sound
discretion of the trial judge. Absent a showing of
abuse of that discretion, an appellate court should
not substitute its judgment for that of the trial
court.
Campbell, 615 P.2d at 198.
Interests of judicial economy greatly encourage joint
trials. Campbell, 615 P.2d at 198. Further, the burden is
on the defendant to show prejudice. State v. Orsborn (1976),
170 Mont. 480, 489, 555 P.2d 509, 515.
This Court has recognized three distinct types of
prejudice that may result from joinder of charges against a
single defendant.
The first kind of prejudice results when the jury
considers a person facing multiple charges to be a
bad man and tends to accumulate evidence against
him until it finds him guilty of something. The
second type of prejudice manifests itself when
proof of guilt on the first count in an information
is used to convict the defendant of a second count
even though the proof would be inadmissible at a
separate trial on the second count. The third kind
of prejudice occurs when the defendant wishes to
testify on his own behalf on one charge but not on
another.
Campbell, 615 P.2d at 198.
Appellant argues that the joining of the assault and
witness tampering charges caused the jury to infer a criminal
disposition on the part of the defendant or that he was a
"bad man." This is rarely sufficient to warrant severance.
Campbell, 615 P.2d at 198; Orsborn, 555 P.2d at 515.
Appellant argues that this kind of prejudice was also
compounded by the trial judge's apparent confusion over the
various defenses presented by the defendant and that the jury
would likewise be confused. It has been held that
prejudicial error does not occur simply because the defendant
had separate and distinct defenses to two different counts.
Orsborn, 555 P.2d at 514. Similarly, we find no prejudice of
this type. Appellant also makes the argument that the jury
obviously used evidence of the witness tampering charge to
convict the defendant of assault. The record shows no misuse
of the evidence.
Evidence of the assault charge would be admissible as
showing motive in a trial on the witness tampering charge.
Rule 404(b), M.R.Evid. Thus, the second type of prejudice is
not present here. We do not find the defendant's arguments
persuasive.
The third type of prejudice set forth in Campbell is not
at issue in this case. We hold that joinder was proper.
Issue 111.
Appellant next argues that Judge Gary incorrectly
instructed the jury on the law of self-defense. He presents
several objections to court's instructions nos. 20, 21 and
22. We cannot pass on the merits of his objections, however,
because the defendant failed to object to them at trial and
thus did not reserve the issue for appeal. State v. Watson
(Mont. 1984), 686 P.2d 879, 886, 41 St.Rep. 1452, 1460.
It appears that appellant also objects to the refusal of
his proposed instruction no. 10.
INSTRUCTION NO. 10
It is the law of this State that when a person is
in his place of business or work and is not the
aggressor, and is assaulted by another, he may,
without any obligation on his part to retreat,
repel1 [sic] force by force, whether to protect
himself or others who may be present.
It is not error for a trial court to refuse to give a
requested instruction if other instructions given adequately
cover the rejected instruction's legal theory. State v.
Lagge (1964), 143 Mont. 289, 295, 388 P.2d 792, 795. Nor
must a trial court give repetitious instructions or instruct
"on every nuance" of a defense theory. State v. Graves
(Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 16.
The thrust of the appellant's argument is that the
court's other instructions required that the defendant
retreat before use of force is justified, and that they
assumed the defendant was the aggressor. These arguments are
meritless. It is the law in Montana that the defense of
justifiable force is not available to an aggressor unless he
has withdrawn from the conflict and has already indicated to
his assailant his desire to withdraw. Section 45-3-105, MCA,
(1985). Retreat is not required if the defendant is not the
aggressor. People v. Taylor (111.App. 1972), 279 N.E.2d 143,
145; People v. Martinez (111.App. 1972), 283 N.E.2d 268, 271.
Section 45-3-102, MCA, (1985); S 45-3-105, MCA, (1985).
The court's instructions nos. 20 and 21 are direct
quotes from S S 45-3-102 and 45-3-105, MCA. We fail to see
how they misstated the law or misled the jury in any way.
Instruction no. 21 further delineates the unavailability of
self-defense to an aggressor. These instructions were
properly given in light of conflicting testimony regarding
who threw the first punch. State v. Bashor (19801, 188 Mont.
397, 426, 614 P.2d 470, 486. Nowhere is it assumed that the
defendant was the aggressor.
Defendant's instruction no. 10 adds nothing to the other
instructions given by the court delineating the theory of
self-defense. The given instructions do not specifically
preclude persons assaulted in their place of business from
benefitting from the defense of justifiable force. Nor do
they require retreat of anyone who is not the aggressor. If
the given instructions as a whole properly tender the case to
the jury, there is no reversible error. State v. Reiner
(1978), 179 Mont. 239, 244, 587 P.2d 950, 953-54. The given
instructions properly state the law and the giving of
defendant's proposed instruction would be repetitious.
Issue IV.
Appellant lastly contends that the District Court erred
in designating Bingman a dangerous offender.
Under 46-18-404, MCA, the sentencing court must
designate a defendant as nondangerous if:
(a) during the 5 years preceding the commission of
the offense for which the offender is being
sentenced., the offender was neither convicted of
nor incarcerated for an offense committed in this
state or any other jurisdiction for which a
sentence to a term of imprisonment in excess of 1
year could have been imposed; and
(b) the court has determined, based on any
presentence report and the evidence presented at
the trial and the sentencing hearing, that the
offender does not represent a substantial danger to
other persons or society.
If an offender is designated as dangerous, the
sentencing court must articulate its reasons. State v.
Camitsch (Mont. 1981), 626 P.2d 1250, 1258, 38 St.Rep. 563,
573; Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d
599, 600.
On September 22, 1986, appellant was found to be a
.
dangerous offender. The trial court gave extensive reasons
for its designation.
I'd like to state that since my time on the bench
of seven years, that this is the most vicious
beating that I've ever encountered, and obviously,
YOU have no respect for the law
whatsoever.. .. You go out and attempt to tamper
witness and the jury convicted you, and I believe
the jury was right. I believe the jury was right
on the conviction of the deadly weapon.
Luckily you didn't kill that man. He was
intoxicated, because you testified that he was
helpless. You beat him in the office and you beat
him in the kitchen, and it was the most vicious
thing I've seen since I've been on the bench, and
you obviously have shown by your conduct that you
don't care about the law. You don't care about
other citizens. You only care about James Bingman,
your booze and your drugs and we'll give you an
opportunity to dry out in the penitentiary.
Appellant contends that the trial court improperly based
its determination on an constitutionally infirm conviction
obtained in 1973 without benefit of counsel. It is true that
the sentencing court cannot rely upon unconstitutional
convictions. State v. Herrera (1982), 197 Mont. 462, 468,
643 P.2d 588, 592. It is also true that the defendant bears
the burden of challenging matters contained in the
presentence report. State v. Smith (Mont. 1985), 705 P.2d
1087, 1092, 42 St.Rep. 463, 468. The only proof the
defendant offered was his own self-serving testimony that he
was not represented by counsel.
Appellant also contends the presentence report contains
hearsay and inaccuracies. Hearsay can be properly considered
in sentencing. State v. D.B.S. (Mont. 1985), 700 ~ . 2 d 630,
639, 42 St.Rep. 770, 780-81. All inaccuracies were brought
to the court's attention during the presentencing hearing.
The trial court did not appear to rely on any particular
offense or incident but instead emphasized the brutality of
the assault, the subsequent witness tampering and a general
inability to conform to the law. Even without the
questionable presentence report incidents, there is
substantial support for the dangerous offender designation.
The trial court did not abuse its discretion.
The judgment of the District Court is affirmed.