No. 89-315
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
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-
HAL J . BUCKINGHAM,
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 T h i r t e e n t h J u d i c i a l D $ $ @_- i c s
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I n and f o r t h e C o u n t y of Y e l l o w s t o n e , o :
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T h e H o n o r a b l e D i a n e G . B a r z , J u d g e presiding61 -4
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COUNSEL O F RECORD:
For A p p e l l a n t :
B r a d J. A r n d o r f e r , Billings, Montana
For R e s p o n d e n t :
Hon. Marc Racicot, Attorney General, Helena, Montana
P a u l D. J o h n s o n , A s s t . A t t y .
General, Helena
Harold Hanser, County Attorney; C u r t i s Bevolden, Deputy
County Atty., B i l l i n g s , Montana
S u b m i t t e d on B r i e f s : Oct. 13, 1 9 8 9
Decided: December 1 4 , 1989
Filed:
Justice Fred J. Fleber delivered the Opinion of the Court.
Defendant, Hal J. Buckingham, was charged in the Dis-
trict Court of the Thirteenth Judicial District, Yellowstone
County, with felony assault purs~xant to 5 45-5-202 (2)(b),
MCA, for firing a shotqun at a car driven by Jay Popp. The
jury found defendant guilty as charged. He was sentenced to
five years imprisonment in the Montana State Prison and fined
$500.00. The prison sentence was suspended. Defendant
appeals. We affirm.
The issues before us on appeal are:
1. Was the State's motion for leave to file an informa-
tion supported by probable cause?
2. Was the defendant denied his right to a speedy
trial?
3. Did the District Court err in denying defendant's
motion in limine?
4. Was the jury's verdict supported by substantial
evidence?
On the evening of February 29, 1988, Billings police
officer Irvan Floth investigated a report of a firearm dis-
charge at defendant's home. He examined a black, 12-gauge,
Winchester Defender shotgun, with a pistol-style grip, an
extended magazine and a serial number of L2037954. Floth
testified that this particular type of gun was a defensive
weapon capable of firing up to eight rounds without reload-
ing. Defendant testified that he was "playing with the gun"
when it accidentally fired, damaging a window. Because it
was an accidental discharge, no citation was issued.
Later that same evening, about 10:30 p.m., while driving
to his house, the victim, Jay Popp, noticed a vehicle parked
in his driveway with its lights shining on his house. As
Popp approached, the other car suddenly pulled out and sped
off. Popp pursued t h e c a r i n a high-speed chase. Suddenly
t h e v e h i c l e Popp was c h a s i n g t u r n e d 90 d e g r e e s i n t h e roadway
and s t o p p e d . A s Popp approached, someone from t h e o t h e r c a r
s h o t a t him. A p i e c e o f g l a s s from t h e w i n d s h i e l d h i t him i n
t h e neck. The s h o o t i n g c o n t i n u e d and i n h i s f e a r , Popp h i d
on t h e f l o o r of h i s c a r , making it d i f f i c u l t f o r Popp t o g e t
a detailed description of the car or his assailant. He
testified that he saw t h a t t h e gun was " a l a r g e gun," "a
s h o t g u n " and t h a t t h e c a r "looked l i k e some k i n d of a R a b b i t ,
o r s m a l l c a r l i k e t h a t , " and a " d i r t y " " r e d d i s h c o l o r . " He
a l s o t e s t i f i e d t h a t h i s a s s a i l a n t was a male. Popp was a b l e
t o e s c a p e t h e s c e n e by d r i v i n g h i s c a r w h i l e s i t t i n g on t h e
floor. He d r o v e back toward h i s home u n t i l t h e c a r s t a l l e d
a s a r e s u l t o f damage done i n t h e s h o o t i n g . He made h i s way
home and t h e n r e p o r t e d t h e i n c i d e n t t o t h e p o l i c e .
Upon examination, the sheriff's department determined
t h a t t h e r e was e x t e n s i v e damage t o t h e l e f t f r o n t and f r o n t
end o f P o p p ' s v e h i c l e caused by s h o t g u n p e l l e t s . Backtrack-
i n g by f o l ~ l o w i n g a t r a c k of radiator fluid, t h e d e p u t y was
a b l e t o v e r i f y P o p p ' s s t o r y of what had happened. There were
s h o t g u n s h e l l s and a s k i d mark on t h e r o a d where t h e a s s a i l -
a n t ' s c a r had come t o a sudden s t o p , and g l a s s and r a d i a t o r
f l u i d where P o p p ' s c a r was s h o t .
A few d a y s l a t e r , t h e s h e r i f f ' s o f f i c e responded to a
c a l l t o p i c k up a s h o t g u n which had been found i n a d i t c h
a l o n g t h e r o a d i n t h e a r e a of t h e s h o o t i n g . The shotgun b o r e
t h e s e r i a l number L2037954, and was t h e same gun i n v o l v e d i n
the accidental discharge involving defendant. The gun was
t r a c e d t o t h e s t o r e t h a t s o l d it. The s t o r e ' s books r e v e a l e d
it had been s o l d t o d e f e n d a n t . The Montana S t a t e Crime Lab
t h e n a n a l y z e d t h e s h e l l s found a t t h e s c e n e o f t h e s h o o t i n g
and e s t a b l i s h e d t h a t t h e s h e l l s c o u l d o n l y have been f i r e d
from d e f e n d a n t ' s s h o t g u n .
The investigation disclosed that defendant owned an
o r a n g e Volkswagen R a b b i t . I n March, a b o u t a week a f t e r t h e
shooting incident, that c a r had gone o v e r t h e edge of the
c l i f f s near B i l l i n g s .
An i n f o r m a t i o n was f i l e d a g a i n s t d e f e n d a n t on A p r i l 29,
1988, charging him with felony assault pursuant to S
45-5-202(2) ( b ) , MCA. On May 25, 1988, defendant filed a
Motion to Dismiss alleging that the information failed to
give probable cause t o charge defendant with t h e c r i m e of
felony a s s a u l t . The D i s t r i c t Court d e t e r m i n e d t h a t p r o b a b l e
c a u s e d i d e x i s t and d e n i e d t h e motion.
Defendant was o r d e r e d t o a p p e a r i n c o u r t on October 6 ,
1988. Due t o h i s f a i l u r e t o a p p e a r , a p l e a o f n o t g u i l t y was
e n t e r e d by t h e c o u r t on h i s b e h a l f . T r i a l d a t e was t h e n s e t
f o r December 5 , 1988. On November 23, 1988, d e f e n d a n t moved
t o d i s m i s s f o r l a c k of speedy t r i a l due t o t h e l e n g t h o f t i m e
between arrest and the date s e t f o r t h e e n t r y of a plea.
After defendant personally appeared with his attorney on
November 29, 1988, and entered a plea of not guilty, his
motion was d e n i e d .
A t r i a l was h e l d a s s c h e d u l e d and t h e j u r y found d e f e n -
d a n t g u i l t y a s charged. He t h e n made motions t o d i s m i s s ,
motion for new trial or modification of verdict to not
guilty. Again, t h e D i s t r i c t Court d e n i e d h i s m o t i o n s , con-
cluding t h a t t h e r e was s u b s t a n t i a l evidence t o support t h e
jury's verdict.
I
Was t h e S t a t e ' s motion f o r l e a v e t o f i l e an i n f o r m a t i o n
s u p p o r t e d by p r o b a b l e c a u s e ?
Defendant c o n t e n d s t h a t because t h i s c a s e was based on
c i r c u m s t a n t i a l evidence, t h e D i s t r i c t Court abused i t s d i s -
c r e t i o n i n n o t h o l d i n g a p r e l i m i n a r y h e a r i n g , and t h e r e were
not s u f f i c i e n t f a c t s t o j u s t i f y f i l i n g t h e information. He
maintains that he was not identified, his vehicle was not
identified, and "only the fact that it was his gun used in
the commission of the crime" connected him to the offense.
He asserts that a preliminary hearing would have shown an
unwarranted prosecution. Defendant filed a motion to dismiss
on the basis that there was not probable cause to support the
information.
Relying on 5 46-11-201, MCA, the State maintains that
the information was proper and there was no abuse of
discretion.
The county attorney may apply directly to the
district court for permission to file an informa-
tion against a named defendant. The application
must be by affidavit supported by such evidence as
the judge may require. ' If it appears that there is
probable cause to believe that an offense has been
committed by the defendant, the judge shall grant
leave to file the information, otherwise the appli-
cation shall be denied.
Section 46-11-201(1), MCA. See State v. Bradford (1984), 210
Mont. 130, 139, 683 P.2d 924, 928, 929. We agree.
The State need not demonstrate a prima facie case in the
information but need only show probable cause to believe an
offense has been committed. In Bradford, 683 P.2d at 929, we
stated:
Similarly, evidence to establish probable cause
need not be as complete s the evidence necessary to
establish guilt. (Citation omitted. ) [TIhe deter-
mination whether a motion to file an information is
supported by probable cause is left to the sound
discretion of the trial court. Thus, the scope of
review is one of detecting abuse in the exercise of
that discretion.
Defendant was charged with felony assault pursuant to S
45-5-202 (2)(b), MCA. A person commits that offense if he
purposely ox knowingly causes reasonable apprehension of
serious bodily injury in another by use of a weapon. The
facts set forth in the affidavit showed that the defendant
accidentally discharged his shotgun in his home the night of
the incident for which he was charged; the police were called
to investigate and the serial number of his gun was reported;
an hour and a half later, Popp was shot at by a male person
from another car, causing considerable damage to Popp's car;
Popp described the perpetrator's car as a dirty
reddish-color, possibly a Rabbit and defendant's car fit that
description; the shotgun shells collected at the scene were
determined by experts to have been fired from defendant's
gun; and defendant's gun was discovered in a ditch near where
the shooting took place. We affirm the District Court's
holding that the State's motion for leave to file an informa-
tion was supported by probable cause.
I1
Was the defendant denied his right to a speedy trial?
Defendant contends that he was denied his right to a
speedy trial, pointing out that 220 days elapsed from the
date of his arrest to trial. He urges that a delay of 220
days gives rise to a rebuttable presumption of prejudice. He
maintains that the reason for the delay was due to an over-
sight by the State in failing to set an arraignment date.
Finally he urges that he was prejudiced by the delay due to
the "faded" memories of the witnesses and the victim at the
time of trial.
The State concedes that there was an oversight on its
part regarding the setting of a date for arraignment. It
maintains that there were 58 days chargeable to the defendant
which must be deducted from the total delay. Thus, it is the
State's position that only 162 of the 220 days are chargeable
to the State, which does not constitute a sufficient length
of time to raise a presumption of prejudice to the defendant.
It also contends that even if the 162-day delay is presump-
tively prejudicial, consideration of the reason for the delay
and whether there was actual prejudice would excuse the
delay. The reason for the delay was considered and explained
at length by the District Court.
Both the Federal and State Constitutions guarantee
defendant a right to a speedy trial. In determining the
question of prejudice pursuant to Mont. Const., Art. 11, Sec.
24, this Court analyzes and weighs four factors. State v.
Wombolt (1988), 753 P.2d 330, 45 St.Rep. 714. The four
factors are:
1. length of delay;
2. reason for the delay;
3. whether defendant asserted the right; and
4. whether defendant was prejudiced.
If the length of delay was not presumptively prejudicial, the
other factors need not be examined. However, no single
factor is determinative. See State v. Palmer (1986), 223
Mont. 25, 723 P.2d 956. As defendant asserts, there was a
delay of 220 days in this case from the time of arrest to the
time of trial. The length of this delay is enough to be
presumptively prejudicial. State v. Waters (1987), 228 Mont.
490, 743 P.2d 617 (277 days); Palmer, 723 P.2d 956 (256
days); State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365
(214 days).
The second factor of the Wombolt test is the reason for
delay. The burden is on the State to show there was a rea-
sonable excuse for delay in bringing defendant to trial.
State v. Cutner (1984), 214 Mont. 189, 692 P.2d 466. The
District Court found that the reason for the delay was of
significant importance in this case and stated:
Through an oversight, the Defendant did not enter a
plea in the case at bar. A delay of 154 days
occurred between the time of Defendant's arrest and
the State's filing of a motion to compel entry of
plea ....
The reason for the delay between arrest and
date set for the entry of a plea (October 6, 1988),
was an oversight by the State. The State and this
Court assumed Defendant had entered a plea at the
time the information was filed or shortly thereaf-
ter. According to the Montana Supreme Court in
State v. Waters, ... "The right to a speedy trial
is designed to prevent oppressive tactics by the
State." The 154 day delay, in the case at bar, was
due to an oversight by the State. There is no
evidence that the State engaged in bad faith or
oppressive tactics, and the Defendant does not
contend as much in his brief supporting his motion
to dismiss for lack of speedy trial.
We agree with the District Court that there is a lack of any
evidence of oppressive tactics by the State in this case.
The third factor to consider is whether the defendant
asserted his right to a speedy trial. This was done when
defendant filed his motion to dismiss before the trial date.
See Wombolt (1988), 753 P.2d 330.
The fourth factor to consider is whether defendant was
prejudiced by the delay. The District Court concluded that
the defendant was not prejudiced by the delay and that al-
though the delay between defendant's arrest and the State's
motion to compel entry of plea was attributable to the State,
defendant caused further delay himself by failing to appear
and enter a plea. In Palmer, this Court identified the
interests of a defendant which may be prejudiced by a delay.
The interests are:
(1) to prevent oppressive pretrial incarceration;
(2) to minimize anxiety and concern of the ac-
cused; and (3) to limit the possibility that the
defense wSll he impaired. Barker, 407 U.S. at 532.
Palmer, 7 2 3 P.2d a t 959. Oppressive p r e t r i a l i n c a r c e r a t i o n
was n o t a f a c t o r i n t h i s c a s e . Furthermore, t h e record i s
d e v o i d o f any e v i d e n c e t h a t d e f e n d a n t s u f f e r e d from a n x i e t y
and d o e s n o t support defendant's argument t h a t h i s d e f e n s e
was i m p a i r e d . W a f f i r m t h e D i s t r i c t Court's conclusion t h a t
e
d e f e n d a n t was n o t d e n i e d h i s r i g h t t o a speedy t r i a l .
Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g d e f e n d a n t ' s motion
i n limine?
Defendant c o n t e n d s t h e D i s t r i c t C o u r t e r r e d by denying
h i s motion i n l i m i n e t o e x c l u d e p h o t o g r a p h s of defendant's
c a r o r any t e s t i m o n y r e g a r d i n g t h e c a r b e c a u s e Popp c o u l d n o t
clearly identify or describe the car used in the crime.
Defendant u r g e s t h a t P o p p ' s own t e s t i m o n y p r o v e s t h a t he was
u n c e r t a i n a b o u t what type of c a r was u s e d i n t h e c r i m e o r
what i t looked l i k e . Popp t e s t i f i e d t h a t t h e c a r was " d i r t y .
And it was k i n d o f r e d d i s h c o l o r . I couldn't t e l l , although,
it was s o v e r y d a r k . " Defendant p o i n t s o u t t h a t Popp admit-
ted s e e i n g a Plymouth Horizon t h a t h e t h o u g h t might b e t h e
v e h i c l e i n v o l v e d and c a l l e d t h e p o l i c e a b o u t it.
The State maintains that the evidence was relevant
p u r s u a n t t o Rule 4 0 2 , M.R.Evid. I t contends t h a t t h e photos
t o g e t h e r with Popp's testimony c l e a r l y tended t o p l a c e defen-
dant i n t h e a s s a i l a n t ' s v e h i c l e a t t h e time of t h e shooting,
and was t h e r e f o r e r e l e v a n t . W agree.
e
Rule 4 0 1 , M.R.Evid., d e f i n e s r e l e v a n t evidence as:
e v i d e n c e h a v i n g any tendency t o make t h e e x i s t e n c e
o f any f a c t t h a t i s o f consequence t o t h e d e t e r m i -
n a t i o n of t h e a c t i o n more p r o b a b l e o r l e s s p r o b a b l e
t h a n i t would be w i t h o u t t h e e v i d e n c e . Relevant
e v i d e n c e may i n c l u d e e v i d e n c e b e a r i n g upon t h e
c r e d i b i l i t y of a w i t n e s s o r h e a r s a y d e c l a r a n t .
In Derenberger v. Lutey (19831, 207 Mont. 1, 9, 674 P.2d 485,
489, we stated the test is:
". . . whether an item of evidence will have any
value, as determined by logic and experience, in
proving the proposition for which it is offered.
The standard used to measure this acceptable proba-
tive value is 'any tendency to make the existence
of any fact . . . more probable or less probable
than it would be without the evidence.' This
standard rejects more stringent ones which call for
evidence to make the fact or proposition for which
it is offered more probable than any other. It is
meant to allow wide admissibility of circumstantial
evidence limited only by Rule 403 or other special
relevancy rules in Article IV." (Citations
omitted. )
Popp described the car as he remembered it and the photo-
graphs supported his testimony. It is for the trier of fact
to decide whether it is the same car or not. We hold the
District Court properly denied defendant's motion in limine.
Was the jury's verdict supported by substantial
evidence?
Defendant filed a motion for a new trial or a directed
verdict pursuant to 5 46-16-702, MCA. The District Court
denied this motion. Defendant contends that the evidence was
wholly circumstantial and implies that to be enough to leave
a "reasonable doubt" in the minds of the jury. He therefore
maintains that he should have been acquitted.
The standard of review on issues of substantial evidence
is that the conviction cannot be overturned if evidence, when
viewed in a light most favorable to the prosecution, would
allow a rational trier of fact to find essential elements of
the crime beyond a reasonable doubt. State v. Tome (19871,
228 Mont. 398, 742 P.2d 479. The decision is within the
sound discretion of the trial court and will not be
overturned absent a clear abuse of discretion. State V.
Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial
evidence alone is sufficient to obtain a conviction. It must
only be of such a "quality and quantity as to legally justify
a jury in determining guilt beyond a reasonable doubt," and
all the facts and circumstances must be considered collec-
tively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23.
We hold that the evidence would allow a rational trier of
fact to find the defendant guilty of felony assault beyond a
reasonable doubt.
Affirmed.
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+- & Justices