No. 91-314
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN HEMBD,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom , Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Hembd, Pro Se, Deer Lodge, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, George Schunk,
Assistant Attorney General, Helena, Montana
Dennis Paxinos, County Attorney, Dale Mrkich,
Deputy County Attorney, Billings, Montana
Submitted on Briefs: June 4, 1992
Decided: September 1, 1992
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, John Hembd (Hembd), appeals his second
conviction of robbery with a handgun following a jury trial in the
Thirteenth Judicial District Court, Yellowstone County. We affirm.
The issues on appeal are:
1. Whether the District Court erred in allowing bank teller
Linda Esman to identify the defendant?
2. Whether the District Court properly instructed the jury?
3. Whether Hembd's sentence was valid?
4. Whether Hembdwas denied effective assistance of counsel?
5. Whether the District Court erred in denying Hembd's
motion to dismiss based on the lack of a speedy trial?
6. Whether the District Court erred in denying Hembd's
motion to disclose the informants1 identity?
7. Whether there is sufficient evidence in the record to
support the defendant's conviction?
On December 28, 1988, Dianne Bexell-Paul, a teller at the
Security Federal Savings Bank in Billings, was robbed at gun point
while at her window in the bank. The robber escaped on foot with
$4,390. Bexell-Paul and the teller next to her, Linda Esman, gave
similar descriptions of the perpetrator to authorities. Informants
later identified Hembd as the robber to the Federal Bureau of
Investigation and the Billings Police Department.
On January 11, 1989, Hembd was charged by information with
felony robbery. A jury trial was held on March 20, 1989, and the
jury returned a guilty verdict on March 22, 1989. Hembd was
subsequently sentenced to twenty-five years in the Montana State
Prison with an additional five years for use of a handgun in the
commission of the offense.
Hembd appealed that conviction on March 31, 1989. The State
cross-appealed certain rulings made during the course of trial.
Subsequently, the State moved the Montana Supreme Court to remand
the case with instructions to vacate the judgment of conviction.
On January 23, 1990, this Court reversed the defendant's conviction
and remanded the case for a new trial.
The second trial was held on April 29 and 30, 1991, and on
April 30, 1991, Hembd was again found guilty by a jury. He was
sentenced to twenty-five years in the Montana State Prison with an
additional five years for the use of a weapon. On September 25,
1991, counsel for Hembd filed an Anders brief with motion for leave
to withdraw. Anders v. California (1967), 386 U.S. 738, 87 S.Ct.
1396, 18 L.Ed.2d 493. We provided Hembd with an opportunity to
respond to his attorney's Anders brief and he responded via letter
dated February 25, 1992. On March 24, 1992, this Court granted
Hembd's counsel's motion to withdraw and directed the State of
Montana to respond. Hembd filed supplemental arguments on June 17,
1992.
I.
Whether the District Court erred in allowing bank teller Linda
Esman to identify the defendant?
Although Hembd objects to this testimony on appeal, it was not
objected to by Hembdts counsel during the trial. The general rule
is that failure to object to alleged error at trial results in
waiver of the right to challenge such error on appeal. State v.
Howie (l987), 228 Mont. 497, 744 P.2d 156. When substantial rights
of a defendant are involved, lack of timely objection does not
preclude us from exercising our jurisdiction to examine any error
at the trial court level. State v. Sadowski (1991), 247 Mont. 63,
805 P.2d 537. However, this plain error doctrine is invoked only
in extraordinary circumstances when it is necessary to ensure a
fair trial. State v. Voegele (1990), 243 Mont. 222, 793 P.2d 832.
The record herein does not contain any extraordinary circumstances
calling the plain error doctrine into play. Therefore, because
counsel did not raise this objection at trial, we will not consider
it on appeal.
11.
Whether the District Court properly instructed the jury?
Hembd asserts that the District Court gave "bad instructions."
At trial, Hembd's attorney objected only to the State's instruction
#2 because it was duplicative of the court's instruction #3. The
court ruled that it was not duplicative and gave the instruction.
The instruction objected to was a "credibility and weight"
instruction. The court's instruction directed the jury to decide
the issues of fact and to perform this task without bias, passion,
or prejudice. It provided the jury with guidelines regarding all
evidence, including testimony as well as documents, exhibits, and
stipulations.
The District Court gave both instructions to the jury. It is
within the prerogative of the trial court to determine which
instructions are necessary. State v. Smith (1986), 220 Mont. 364,
715 P.2d 1301. On review, we determine whether instructions, as a
whole, fully and fairly present the applicable law of the case.
State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953.
We conclude that the District Court was correct that the two
instructions were not duplicative. Having reviewed all the
instructions, we conclude that, as a whole, they fully and fairly
presented the case to the jury.
111.
Whether Hembd's sentence valid?
Trial judges are granted broad discretion to determine the
appropriate punishment. State v. Carson (1984), 208 Mont. 320, 677
P.2d 587. On appeal we will not review a sentence for mere
inequity or disparity. State v. Almanza (1987), 229 Mont. 383, 746
P.2d 1089. The general rule regarding sentencing is that a
sentence within the statutory guidelines does not violate the
constitution. State v. Dahms (Mont. 1992), 825 P.2d 1214, 49
St.Rep. 106. Hembd was sentenced to twenty-five years for robbery
pursuant to g 45-5-401, MCA; the sentence was within the 40-year
maximum statutory sentence for robbery. We hold that Hembd's
sentence is not unconstitutional and did not constitute an abuse of
discretion.
IV.
Whether Hembd was denied effective assistance of counsel?
Hembd argues on appeal that because his counsel did not raise
the issue of Linda Esman's identification at trial, he has been
denied effective assistance of trial counsel. This Court has
adopted a two part test in determining whether a party has been
denied effective assistance of counsel.
To demonstrate that counsel's performance was deficient,
defendant must prove that counsel's performance fell
below the range of competence reasonably demanded of
attorneys in light of the Sixth Amendment. Second, the
defendant must demonstrate that the counsel's deficiency
was so prejudicial that the defendant was denied a fair
trial.
State v. Aills (1991), 250 Mont. 533, 535, 822 P.2d 87, 88; quoting
Strickland v. Washington (1984), 466 U.S. 668, 687, 104 St.Ct.
2052, 2064, 80 L.Ed.2d 674, 693.
In the case at bar, the first prong of the test is not
satisfied. Hembd's single allegation on appeal is that his
attorney failed to object to Linda Esman's identification at the
second trial; he does not assert any basis for a conclusion that
Esman's testimony was inadmissible. "In any case presenting an
ineffectiveness claim, the performance inquiry must be whether
counsel's assistance was reasonable considering all the
circumstances." Aills, 822 P. 2d at 89; citing Strickland, 466 U.S.
at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.
Linda Esman was standing at a teller window near that of
Dianne Bexell-Paul when Bexell-Paul was robbed at gun point; both
Esman and Bexell-Paul were eyewitnesses to the crime and gave
similar descriptions of the robber to the police. Defense counsel
chose to cross-examine Esman at some length regarding discrepancies
in her initial description of Hembd and her identification at trial
rather than objecting to her testimony. In judging counselqs
representation of Hembd, we will not second-guess counsel's trial
tactics. State v. LaValley (l983), 203 Mont. 393, 661 P.2d 869.
We conclude that counsellsrepresentation was reasonable and within
the range of competence required by the Sixth Amendment. The first
prong of the Strickland test not being satisfied, we hold that
Bernbd received effective assistance of counsel.
v.
Whether the District Court erred in denying Hembdls motion to
dismiss based on the lack of a speedy trial?
Hembd argues on appeal that he was denied a speedy trial. He
contends that the delays in bringing his case to trial must be
charged to the State. The State asserts, and the court agreed,
that Hembd was responsible for much of the delay and that the
remainder of the delays were caused by the court's congested
calendar. Finding no prejudice to the defendant, the court denied
Head's motion for dismissal based on the lack of a speedy trial.
Defendants in criminal trials are guaranteed the right to a
speedy trial by the Sixth Amendment to the United States
Constitution and by Article 11, section 24, of the Montana
Constitution. We analyze four factors in determining whether a
defendant's right to a speedy trial has been violated: length of
delay, reasons for delay, assertion of the right by the defendant,
and prejudice to the defendant. State v. Heffernan (1991), 248
Mont. 67, 70, 809 P.2d 566, 568.
Lenqth of Delay
If the delay is lengthy it is presumptively prejudicial and
7
further inquiry is warranted. Heffernan, 248 at 70, 809 P.2d at
568. Here, 461 days e l a p s e d between t h e reversal of Hembdts first
conviction and his second. We have previously stated that a delay
of 200 days will usually trigger the full speedy trial analysis.
State v. Dahms (Mont. l992), 825 P.2d 1214, 49 St.Rep. 106.
Therefore, we will analyze the remaining speedy trial factors.
Reasons for Delay
A careful review of the record reveals that Hernbdlssuccessful
motions to vacate trial dates delayed the trial by 240 days,
leaving 241 days of unavoidable delay grounded in institutional
considerations of the District Court. "Delay inherent in the
system is chargeable to the State." State v. Harvey (1979), 184
Mont. 423, 434, 603 P.2d 658, 667. However, institutional delay
weighs less heavily against the State than purposeful delay.
Heffernan, 248 Mont. at 73, 809 P.2d at 570. Nothing in the record
before us reflects any purposeful delay by the State.
Assertion of the Risht
Hembd satisfied the third element of the test by moving to
dismiss the action on speedy trial grounds on J u n e 15, 1990.
Preiudice to Defendant
This Court has identified three factors which indicate
prejudice to a defendant: 1 ) pretrial incarceration; 2.) anxiety
.
and concern; and 3.) impairment of defense. Heffernan, 248 Mont.
at 74, 809 P.2d at 570. Applying these factors to the case before
us results in a conclusion that Hembd was not prejudiced by the
delay.
Hembd's incarceration on a separate charge negates any
prejudice arising from being incarcerated awaiting trial. Further,
he does not assert that the delay exacerbated his anxiety and
concern. Finally, Hembd makes no showing that his defense was
impaired by that delay. We hold that the District Court did not
err in denying Hembd's motion to dismiss based on the lack of a
speedy trial.
VI .
Whether the District Court erred in denying Hembd's motion to
disclose the informants' identity?
Hembd argues on appeal that he should have been permitted to
see the informant; he does not specify which of the two informants
he means. We note that Hembd moved for identification of the FBI
informant prior to trial and that the motion was denied. No
specific error in that ruling is raised and our review does not
disclose error.
With regard to Hembd's assertion regarding disclosure of the
identity of the informants, he does not suggest how disclosure
could have aided his alibi or mistaken identity defenses. He
asserts only that if he could see the informant he could determine
if the informant looked like him and could have actually committed
the crime and subsequently blamed Hembd. Hembd's assertion that
the informants may have provided information to throw law
enforcement investigators off the track of the actual perpetrator
constitutes mere speculation and conjecture. Conjecture is an
insufficient cause to support disclosure of an informant's
identity. State v. McLeod (1987), 227 Mont. 482, 740 P.2d 672.
9
VII .
Whether there is sufficient evidence in the record to support the
defendant's conviction?
The standard of review for sufficiency of the evidence in
criminal cases is whether "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. Beach (1991), 247 Mont. 147, 150, 805 P.2d 564, 566.
Hembd was found guilty of robbery. Robbery is defined in
pertinent part, as follows:
(1) A person commits the offense of robbery if in the
course of committing a theft he:
(b) threatens to inflict bodily injury upon any person
or purposely or knowingly puts any person in fear of
immediate bodily injury. . ..
Section 45-5-401, MCA.
The evidence in this case was substantial as to each element.
Two eyewitnesses testified that it was Hembd who robbed the bank,
two informants notified authorities that it was Kembd who robbed
the bank, and a video exists of the robbery. The robbery was
committed at gunpoint and the robber escaped with over $4,000.
Bexell-Paul and Esman testified that they were afraid that the
robber would shoot them. A rational trier of fact could have found
each element of the offense proved beyond a reasonable doubt.
Therefore, we hold that there is sufficient evidence in the record
to support defendant's conviction.
A f f inned.
we concur:
September 1, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
John Hembd
700 Conley Lake Rd.
Deer Lodge, MT 59722
HON. MARC RACICOT, Attorney General
George Schunk, Assistant
Justice Building
Helena, MT 59620
Dennis Paxinos, County Attorney
Yellowstone County
P.O. Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF, MONTANA