No. 88-436
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
5 cn
Plaintiff and Respondent, cn
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SHERMAN HAWKINS,
Defendant and Appellant.
APPEAL FROM: ~istrictCourt of the ~hirteenth~udicial~istrict,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, ~illings,Montana
For Respondent :
Hon. Marc ~acicot, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Donna ~effington,
Deputy County Atty., ~illings, Montana
Submitted on Briefs: Aug. 24, 1989
Decided: October 19, 1989
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Following trial in the Thirteenth Judicial District, Yellow-
stone County, the jury found Sherman Hawkins guilty of felony
assault. The court designated Hawkins a persistent felony offender
and a dangerous offender. Hawkins appeals all three decisions.
We affirm.
ISSUES
The appellant raises the following issues:
1. Whether the trial court had jurisdiction to designate the
defendant a persistent felony offender.
2. Whether the trial court properly designated the defendant
a dangerous offender.
3. Whether res judicata and double jeopardy should have
precluded the defendant's second trial.
4. Whether the former prosecution should have precluded the
defendant's second trial.
5. Whether the trial court should have suppressed the fruits
of the parole officer's search of the defendant's vehicle.
FACTS
On February 5, 1987, LaVon Bretz called the Billings Police
Department to report that Sherman Hawkins had threatened to kill
Bretz, Hawkins' ex-wife Francis Kunz, and himself. Responding
officers learned from the appellant's parole officer that Hawkins
was on a work release furlough from a first degree murder convic-
tion, that he might be armed and dangerous, and that he was to be
arrested if he was carrying any weapons. While patroling the area
of the Kunz home, Deputy Sheriff Dostal spotted Hawkins' pickup
truck heading in the direction of the Kunz home and began follow-
ing. Hawkins accelerated to between 80 and 85 miles per hour and
the officer concluded that Hawkins was either intoxicated or trying
to elude him.
When Hawkins stopped in the Kunz driveway, the police
conducted a felony stop. A pat-down search produced a small pen
knife and a set of brass knuckles. The officers arrested Hawkins
for carrying a concealed weapon and for parole violation. Hawkins
denied the officers permission to search his vehicle, but while
removing the keys from the truck, one of the officers spotted the
handle of a pistol on the floor. Hawkins' parole officer conducted
a warrantless search of the pickup and seized a .38 caliber pistol,
five cans of beer, and 1.2 pounds of marijuana.
During processing at the Yellowstone County Sheriff's Office,
Hawkins allegedly attacked and attempted to strangle attending
Officer Dostal. Hawkins escaped, but was later captured in Arizona.
He returned to Montana to face charges of felony assault, carrying
a concealed weapon, possession of dangerous drugs, and felony
escape.
The jury found Hawkins guilty of felony drug possession and
misdemeanor escape, but returned a hung verdict on the assault and
weapon charges. The court designated Hawkins a persistent felony
offender. Following retrial on the felony assault charge, the jury
found Hawkins guilty. The court added another persistent felony
offender designation and also designated Hawkins a dangerous
offender.
I. Persistent Felony Offender Status
The appellant argues that the District Court did not gain
jurisdiction to designate him a persistent felony offender because
the prosecution failed to provide timely notice. The appellant
correctly points out that written notice must be given before the
case is called for trial, 1 46-18-503(1), MCA, and that the
requirement is jurisdictional, State v. Madera (1983), 206 Mont.
140, 155, 670 P.2d 552, 560. The appellant fails to note that a
second, procedural notice is also required prior to sentencing.
§ 46-18-503(3), MCA; Madera, 206 Mont. at 155, 670 P.2d at 560.
The record in this case clearly shows that the State gave
appropriate notice in both prosecutions. In the first case,
jurisdictional notice was given on September 3, 1987, and trial
began on April 12, 1988. The prosecution gave the second,
procedural notice on May 11, 1988, and sentencing took place on May
24, 1988. In the second case, jurisdictional notice was given on
September 1, 1988, and trial began on October 11, 1988. The
prosecution gave the second, procedural notice on October 17, 1988,
and sentencing took place on October 25, 1988.
The appellant raises a second objection. Without elaborating
on his argument or citing any authority, the appellant asserts that
the District Court erred in its second designation of Hawkins as
a persistent felony offender because both underlying convictions
arose from a single transaction.
The fact that both crimes arose out of the same transaction
does not in itself bar application of the persistent felony
offender designation. A persistent felony offender is defined as,
an offender who has previously been convicted
of a felony and who is presently being sen-
tenced for a second felony committed on a
different occasion than the first.
46-18-501, MCA.
The statute requires that the offender has committed at least
two felonies. The test of whether more than one crime results from
the same transaction is whether the elements of each charged
offense require proof of a fact which the others do not. State v.
Gray (1983), 207 Mont. 261, 269, 673 P.2d 1262, 1267. The first
jury found Hawkins guilty of felony drug possession which requires
the prosecution to prove that the defendant knowingly, purposely,
or negligently possessed more than sixty grams of marijuana. 5 45-
9-102(2), (4), MCA; 5 45-2-103 (I), MCA. The second jury found
Hawkins guilty of felony assault which required proof that he
knowingly and purposely caused bodily injury to a peace officer who
was responsible for his custody. 1 45-5-202 (2)(c), MCA. Clearly,
these are separate crimes.
The statute also requires that the offender must have commit-
ted the felonies on different occasions. We have not yet con-
sidered what constitutes different occasions for the purposes of
the persistent felony offender statute. In interpreting its
version of the statute, the Arizona Supreme Court stated,
We know of no all-encompassing test to deter-
mine whether different crimes fall within the
same occasionw limitation of the statute.
Any analysis of the question must have refer-
ence to the time, place, number of victims,
and distinct nature of the defendant Is acts.
In general, however, when different crimes,
even though unrelated in nature, are committed
at the same place, on the same victim or group
of victims, and at the same time or as part of
a continuous series of criminal acts, they
should be considered as having been committed
on the "same occasion1I for purposes of sen-
tence enhancement.
State v. Henry (Ariz. 1987), 734 P.2d 93, 97. (Citation omitted.)
We apply a similar analysis here and hold that Hawkins1 two
felony crimes occurred on different occasions. The drug possession
charge is a crime against the state which occurred prior to
Hawkinst arrest in the Kunz driveway. The assault against Deputy
Dostal occurred some hours later in the Yellowstone County Court-
house. Though the assault during escape was a result of Hawkins1
drug-related arrest, the crimes are sufficiently disparate in time,
place, and victim that they cannot be said to have occurred on the
same occasion. The second persistent felony offender designation
was appropriate.
11. Danserous Offender Status
The appellant argues that the record does not contain substan-
tial credible evidence to support dangerous offender status. He
correctly points out that the trial court must articulate reasons
based on substantial credible evidence and may not simply recite
the statute. See In the Matter of McFadden (1980), 185 Mont. 220,
222, 605 P.2d 599, 600.
The District Court has amply satisfied the McFadden require-
ments. Among other factors, the court considered the presentence
report, the appellant's prior criminal history, the inability of
the appellant to live in the community for more than three years
without being convicted of felony drug possession and felony
assault, and the violence of the crime and danger to the victim.
111. Res Judicata and Double Jeopardy
Again with little elaboration and no authority, the appellant
asserts that in convicting him of misdemeanor escape and not of
felony assault, the first jury determined that Hawkins did not
assault Officer Dostal and, therefore, he cannot be tried again on
the same factual issue.
The question of double jeopardy is easily settled; it does not
arise when the state charges the defendant with felony escape and
felony assault. State v. Thornton (1985), 218 Mont. 317, 325, 708
P.2d 273, 278-79.
The issue of res judicata is more complex. In Sealfon v.
United States, the United States Supreme Court held that res
judicata may be a defense to a criminal prosecution. The doctrine
"operates to conclude those matters in issue which the [previous]
verdict determined though the offenses be different." Sealfon v.
United States (1948), 332 U.S. 575, 578, 92 L.Ed. 180, 184, 68
S.Ct. 237, 239. Similarly, this Court stated in a criminal case,
that "a final judgment on the merits by a court of competent
jurisdiction is conclusive as to ... issues thereby litigated
. . . . Coleman v. State (Mont. 1981), 633 P.2d 624, 629, 38
St.Rep. 1352, 1357-58.
The pivotal question in the case sub judice is what issues the
jury decided in the first trial. If the jury decided that Hawkins
did not assault Officer Dostal, res judicata would bar re-litiga-
tion of that issue. Faced with a similar problem in Sealfon, the
United States Supreme Court looked to the facts necessarily adduced
at trial and the jury instructions. Sealfon, 332 U.S. at 578-79,
92 L.Ed. at 184, 68 S.Ct. at 239.
The Hawkins court instructed the jury that to find the
defendant guilty of felony assault, they would have to conclude
that he attempted to strangle Officer Dostal. On the issue of
escape, the court instructed the jury to first consider the crime
of felony escape, which also required a finding that Hawkins
attempted to strangle Officer Dostal. The court further instruct-
ed, "In the event you cannot find the defendant guilty of ...
ESCAPE (FELONY), you must consider the lesser included offense of
ESCAPE (MISDEMEANOR) . . . . I' The jury returned a verdict of
guilty of misdemeanor escape, but hung on the assault charge.
Contrary to appellant's assertion, it is apparent that the
jury did not conclude that Hawkins did not assault Officer Dostal.
They explicitly failed to come to any conclusion on that issue by
entering no verdict on the assault charge. Since the jury could
not decide if Hawkins assaulted Officer Dostal, they could not find
him guilty of felony escape, but could, and did, find him guilty
of misdemeanor escape. Because the first jury never decided the
issue of assault, it was a proper subject of the second trial and
not blocked by the doctrine of res judicata.
IV. Lesser Included Offense
The appellant asserts without explanation that since Hawkins
was not convicted of felony escape, he cannot be charged with the
lesser included offense of felony assault. We have previously held
that felony escape and felony assault are not inclusive, State v.
Thornton (1985), 218 Mont. 317, 325, 708 P.2d 273, 278-79, and find
no merit in the appellant's argument.
V. Search and Seizure
The appellant lastly argues that the trial court erred in not
suppressing the marijuana evidence found in Hawkins' truck because
the evidence was the result of a warrantless search by parole
officers. The appellant apparently contends that evidence dis-
covered during a parole officerls search of a parolee should be
restricted to parole revocation proceedings. We disagree.
The search in this case is controlled by our holding in State
v. Burke. In that case we followed the United States Supreme Court
in holding that a probation officer may search a probationer's
vehicle without a warrant as long as the officer has reasonable
cause. Burke (Mont. 1988), 766 P.2d 254, 256, 45 St.Rep. 2278,
2280.
Reasonable cause existed in the present case. While on
furlough from a first degree murder sentence, Hawkins threatened
to kill LaVon Bretz and Francis Kunz. Arresting officers found
brass knuckles in his pocket and his erratic driving indicated
that Hawkins may have been intoxicated. The parole officer was
thereby given reasonable cause to search Hawkins1 vehicle for
alcohol and weapons. The marijuana was a fortuitous discovery
pursuant to a lawful search.
The conduct of the police officers is also controlled by our
holding in Burke. In Burke, we noted that probation officers are
not always available in Montana, and we encouraged police and
probation officers to cooperate and communicate in the effective
administration of the probation system. Burke, 766 P.2d at 257,
45 St.Rep. at 2283. Parole officers were available in this case,
and the cooperation and communication were appropriate. Hawkins1
parole officer was notified early in the incident and the informa-
tion he provided insured an uneventful arrest. The police waited
for the parole officer to make the decision to conduct a search of
the vehicle. The parole officer determined that he had reasonable
cause and that no warrant was necessary.
We take note of the apparent contradiction between Hawkins'
adamant refusal to allow the police to search his vehicle and the
officers1 testimony that Hawkins paradoxically gave them permission
to secure the pickup truck by removing the keys. Hawkins testified
that he never authorized removal of the keys. The District Court,
as the finder of fact in the suppression hearing, chose to believe
the police officers rather than Hawkins. Without more evidence,
we hold that the court did not abuse its discretion.
The appellant argues that Hawkins1 parole officer acted as a
mere "pawnn of the police in searching Hawkins' vehicle. In Burke
we stated that probationers should not be afforded a fortuitous
opportunity to escape punishment for probation violations simply
because probation officers were not present during observation or
arrest. Burke, 766 P.2d at 257, 45 St.Rep. at 2282-83. We will
also not give parolees carte blanche to avoid punishment for
criminal acts simply because a police arrest led to a lawful search
by parole officers.
We find the appellant's assertions without merit.
Affirmed.
W e concur:
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