No. 86-569
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
THE STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
MARTIN MORRIS REDFERN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. June Lord, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
Patrick L. Paul, Cascade County Attorney, Great Falls,
Montana
Submitted on Briefs: July 30, 1987
Decided: September 10, 1987
GE? 1C 1981
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
The defendant was initially charged by information in
the District Court, Eighth Judicial District, Cascade County,
with deliberate homicide in connection with the shooting
death and subsequent concealment of the body of Scott
Scissons. Following a jury trial in which the jury could not
reach a verdict, a plea bargain agreement was entered into
between the defendant and the Cascade County Attorney's
office. Pursuant to the plea bargain agreement, the
defendant entered a plea of guilty to an amended information
charging negligent homicide.
The District Court sentenced the defendant to a term of
ten years in prison with an additional ten years to run
consecutively for the use of a dangerous weapon. The
defendant now challenges the application of the enhancement
statute, § 46-18-221, MCA, to his sentence. We affirm.
Defendant presents the following issues to the Court:
1. Does S 46-18-221, MCA, providing for an additional
sentence if a firearm is used during the commission of a
crime, apply to negligent homicide?
2. Does 46-18-221, MCA, as written and applied
deprive the defendant of due process of law in violation of
the Montana and United States Constitutions?
We shall address the issues in the order presented.
The crux of the defendant's argument is that the
"knowingly" mental state required by the sentence enhancement
statute precludes its application to a situation where the
victim of a homicide is "negligently" or more particularly
"accidentally" killed. Such an interpretation of the
enhancement statute conflicts with the plain meaning of the
language used by the legislature. Section 46-18-221, MCA,
provides, in pertinent part:
A person who has been found guilty of any offense
and who, while enqaqed in the commission of the
offense, knowingly - displayed, brandished, or
otherwise used a firearm ... shall, in addition
to the punishment provided for the commission of
such offense, be sentenced to a term of
imprisonment in the state prison of not less than 2
years or more than 10 years,. .. (Emphasis
added. )
By its terms, the enhancement statute applies to the
commission of "any offense." The defendant asserts that the
"knowingly" mental state required by the enhancement statute
and the "negligent" mental state required by the negligent
homicide provision are mutually exclusive. We disagree. As
this Court has stated, "a person can knowingly use a firearm
and still be negligent by grossly deviating from the conduct
of a reasonable person in a similar situation with regard to
the results of his actions." State v. Hubbard (1982), 200
Mont. 106, 112, 649 P.2d 1331, 1334; State v. Stroud (Mont.
1984), 683 P.2d 459, 41 St.Rep. 919.
The defendant's attempt to distinguish Hubbard and
Stroud, supra, based on the allegedly accidental nature of
the homicide in the instant case does not hold water. In
each case, the defendant was found to have committed
negligent homicide. Negligently, within the meaning of
negligent homicide, is defined in S 45-2-101(37), MCA. It
provides :
"Negligentlyw--a person acts negligently with
respect to a result or to a circumstance described
by a statute defining an offense when he
consciously disregards a risk that the result will
occur or that the circumstance exists or when he
disregards a risk of which he should be aware that
the result will occur or that the circumstance
exists. The risk must be of such a nature and
degree that to disregard it involves a gross
deviation from the standard of conduct that a
reasonable person would observe in the actor's
situation. "Gross deviation" means a deviation
that is considerably greater than lack of ordinary
care.
Whether the gross deviation occurs because the offender
"only intended to wing [the victim]" as in Hubbard or
accidently released the hammer of the pistol as is alleged in
the instant case is immaterial. In both situations the
result is the same, a person lost their life due to the
inexcusably negligent and criminal actions of another.
Either situation satisfies the definition of criminal
negligence.
Defendant next contends that the enhancement statute as
written and applied is violative of due process as guaranteed
by the Montana and United States Constitutions. A review of
the trial proceedings demonstrates that the issue was not
raised at the time, however. Subject to the exceptions of S
46-20-702, MCA, this Court will not entertain issues not
raised at trial. State v. St. Goddard (Mont. 1987), 734 P.2d
680, 682, 44 St.Rep. 551, 554.
We hold that the sentence enhancement statute was
properly applied in this case.
Affirmed.
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Justice
We- Concur: