No. 90-506
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MICHAEL LEE DAHMS
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank M. Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joseph R. Massman, Massman Law Firm, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson, Assistant Attorney General
Richard J. Llewellyn, Jefferson County Attorney,
Boulder, Montana
.-. ,. - .._.,.
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submitted on Briefs: July 16, 1991
Decided: January 30, 1992
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CLERK OF SU~~J"IIJE
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3' Clerk
Justice ~illiamE. Hunt, Sr., delivered the opinion of the Court.
Defendant Michael Lee Dahms was found guilty of felony assault
in violation of 5 45-5-202 (2), MCA, after a jury trial in the
District Court for the Fifth Judicial District, Jefferson County.
The District Court sentenced the defendant to a term of ten years
at the Montana State Prison for felony assault and a consecutive
term of ten years with five years suspended for the knowing use of
a firearm during the commission of the offense pursuant to the
weapon enhancement statute 5 46-18-221, MCA. Defendant was
designated a dangerous offender for purposes of parole eligibility
and was fined the sum of $50,000. Defendant appeals. We affirm.
Defendant raises the following issues on appeal:
1. Did the ~istrict Court improperly limit defendant's
cross-examination of State's witness Tom Jacobs?
2. Did the District Court err in denying defendant's motion
in which defendant requested that the District Court provide for
travel expenses for several potential defense witnesses from
California?
3. Did the District Court properly deny defendant's motion
to disqualify the County Attorney from prosecuting the case based
on a conflict of interest?
4. Did defendant's conviction in State court violate
Montana's double jeopardy statutes?
5. Was defendant denied his right to a speedy trial?
6. Was it error for the District Court to allow certain
testimony by the State's expert witness, Connie Anders?
7. Was the sentence imposed on the defendant by the District
Court excessive?
8. Did the District Court err in refusing to give
defendant's proposed jury instruction D-1, and in giving the
State's proposed instruction S-7?
In June 1988, ~arrietKay Plaunt and defendant met and began
living together in Lyons, Michigan. In March 1989, Harriet and
defendant were married while the defendant was serving time in the
1onia County Jail in Lyons. Living with Harriet at the time of
this marriage were her two daughters from a previous marriage,
ages 12 and 11. Upon his release from jail in May 1989, defendant
decided to take Harriet and her daughters to Montana where they
could find a home in the mountains and live close to nature.
Accompanying the group west was Tom Jacobs, a mutual friend of both
Harriet and the defendant. Harriet knew Tom from an adult
education class and defendant had become acquainted with Tom while
they were serving time together in a county jail in Michigan.
The Dahms party pooled their money and purchased a 1970 Buick.
They loaded the car with their personal belongings, camping gear,
bows and arrows, and two shotguns with ammunition, and left for
Montana the first week of June 1989. The trip west was made
difficult by car trouble along the way. Eventually the car broke
down at the top of Homestake Pass near Butte. The group abandoned
the vehicle at that point and continued on to Helena when a
passerby in a pickup stopped and gave the group a ride. Upon
arriving in Helena, the group went to a local shelter for homeless
persons. At the shelter, they received assistance and were
directed to a Helena hotel at which they could stay for several
days.
At the hotel, the members of the Dahms party met another
couple from Michigan who told them about the Nellie Grant Mine, an
old abandoned gold mine located about ten miles south of Helena
near Park Lake in Jefferson County. On June 14, 1989, with the
help of a friend with a pickup truck, the group travelled up into
the mountains to set up camp at the Nellie Grant Mine. The group
found one of the old mine buildings and rigged up some bunking
spaces.
Life at the mine was not exactly what the group had expected.
As the group gathered around the campfire at night, there was
speculation that a wild lynx or other predatory animal was in the
area of the encampment, and so shots would periodically be fired
into the darkness to scare away any unwanted intruders. By day the
situation was no better. Harriet, in particular, grew weary of the
conditions and the whole outdoor experience. Tempers flared and
arguments ensued at different times. About four days after
arriving at the mine, Harriet decided to take her daughters and
hike back to Helena.
At this point, there was conflicting testimony offered at
trial as to what transpired next. ~arriettestified that as she
and her 11-year-old daughter were preparing to leave defendant
began firing shots from one of the shotguns into the ground at
their feet. Defendant then struck the daughter, knocking her to
the ground. Harriet then began striking defendant. She alleges
defendant then pointed the shotgun directly at her face and said
that if she moved, she was dead. Defendant pulled back the hammer,
put his finger on the trigger, and told her to go ahead and say
something so that he could kill her. ~arriet'sdaughters and Tom
Jacobs were finally able to talk the defendant into putting down
the shotgun. Harriet's version of events is supported by the
testimony of both her 12-year-old daughter and Tom Jacobs.
Defendant admits that an argument took place and that heated words
were exchanged while he was holding the shotgun. However,
defendant contends he did not threaten to kill Harriet or anyone
else with the shotgun.
The following morning the group was able to catch a ride back
into Helena. That night they stayed at the Lewis and Clark County
Fairgrounds and the following morning defendant and Tom Jacobs
hopped a freight train to California. Harriet then reported the
assault to the police. A felony complaint was filed in Jefferson
County and an arrest warrant was issued for defendant.
Shortly after arriving in California, Tom Jacobs telephoned
his parents in Michigan and they wired him an airline ticket home.
In October 1989, defendant telephoned Harriet in Helena. Harriet
informed the police of the call. She then had subsequent telephone
calls from the defendant during which she encouraged him to return
to Montana, ostensibly for a reconciliation. Harriet testified
that she in fact had no intention of reconciling with the defendant
but was merely attempting to lure defendant to Montana so that he
could be arrested. Defendant returned to Montana and was arrested
on October 31, 1989, the day he arrived in Helena.
On April 13, 1990, the defendant was found guilty after a jury
trial of the offense of felony assault. On June 8, 1990, defendant
was sentenced to ten years in prison for felony assault with an
additional ten year sentence for the use of a weapon during the
commission of the offense. The second sentence was to run
consecutively with five years suspended. Defendant was designated
a dangerous offender for purposes of parole eligibility and was
fined the sum of $50,000, to be paid from any proceeds recovered by
the defendant in a pending lawsuit. Defendant appeals.
I
Did the District Court improperly limit defendant's
cross-examination of State's witness Tom Jacobs?
On appeal, defendant alleges that the District Court erred in
not allowing greater latitude on cross-examination to impeach the
credibility of the witness Jacobs. Specifically, the defendant
contends the jury was not allowed to hear the subjective reason or
ulterior motive Jacobs may have had for testifying.
At the time the assault occurred in Montana, Jacobs was on
formal probation in Michigan for a felony offense. Owning and
using a firearm and traveling to Montana without first obtaining
the proper permission were violations of his probation, which
subjected him to possible revocation of his probation. Defendant
argued that Jacobs was testifying in order to avoid revocation of
his probation. The State denied that Jacobs was to receive any
favorable treatment in Michigan as a result of his testimony
against the defendant.
Prior to trial, the State made a motion in limine requesting
that the District Court restrict the defendant from inquiring into
the criminal record of any of the State's witnesses for purposes of
impeachment. The defendant objected to the motion in regard to the
State's witness Jacobs. The District Court took the matter under
advisement. Despite the fact that the State's motion in limine was
still pending, counsel for the defense told the jury during opening
argument that Jacobs was a convicted felon. The State objected and
the court warned counsel not to mention the matter again until the
court issued a ruling.
Shortly before Jacobs was to testify, the District Court ruled
that the defendant would be allowed to ask two questions concerning
the witness's probationary status and motive for testifying. On
cross-examination, the defense could ask Jacobs if he was in fact
on probation. If he answered in the affirmative, the defense could
then ask if he had been granted or expected to receive any kind of
immunity or favorable treatment in exchange for his testimony. In
response to these questions, the witness admitted to being on
probation, but denied he was to receive any immunity or favorable
treatment for his testimony. Finally, in his closing argument,
counsel for the defense argued to the jury that Jacobsv motive for
testifying was his fear that if he did not testify law enforcement
would somehow retaliate against him.
Defendant is correct in his assertion that a cross-examiner
should be given latitude in order to attempt to impeach the
credibility of a witness. Rule 607, M.R.Evid., provides that,
Iv[t]he credibility of a witness may be attacked by any party,
including the party calling the witness.Iv Defendant wanted to
attack the witness's motive for testifying. This Court has stated
that :
A witnessv credibility may be attacked through
cross-examination to reveal possible biases, prejudices,
or ulterior motives if they relate directly to issues or
personalities in the case at hand.
State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982.
However, in this instance the defendant wanted to impeach the
witness by eliciting testimony on cross-examination concerning the
witness's prior felony conviction. Rule 609, M.R.Evid., states
Iv[f]or the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime is not
admissible.
Defendant's right to impeach by showing an ulterior motive for
testifying is therefore in conflict with the statutory prohibition
against evidence of criminal history. Faced with this dilemma, the
District Court allowed the defendant to ask the witness whether he
was on probation and whether he expected to receive favorable
treatment for his testimony. The extent of cross-examination
allowed under these circumstances is within the District Court's
discretion. Sloan v. State (1989), 236 Mont. 100, 104-05, 768 P.2d
1365, 1368. We hold the court was well within its exercise of
discretion in restricting the cross-examination of the witness
Jacobs as it did.
Did the District Court err in denying defendantlsmotion in
which defendant requested that the District Court provide for
travel expenses for several potential defense witnesses from
California?
Defendant filed a motion with the District Court requesting
the court to authorize payment of travel expenses of several
defense witnesses from California. Defendant contended these
witnesses had overheard telephone conversations between the
defendant and the victim. These conversations involved the
victimls attempt to persuade the defendant to return to Montana
from California, ostensibly for a reconciliation. Defendant
alleged these witnesses were necessary to attack the credibility of
the victim. The District Court reserved ruling on the motion until
additional proof of the materiality of the witnesses1 testimony was
presented. After receiving a memorandum in support of the motion
and letters from the potential witnesses setting out what their
testimony would be, the District Court denied the defendant's
motion on the grounds that the testimony these witnesses would
offer was not material. The District Court specifically noted that
cost was not a factor in denying the motion.
Section 46-15-104, MCA (1989), provides that a district court
may, in its discretion, provide in advance the travel expenses for
witnesses appearing in criminal cases upon a subpoena. Section
46-15-113, MCA (1989), sets out the procedure for securing the
attendance of a material witness in a pending prosecution. In
interpreting this statute, this Court has previously held "that a
trial court's finding as to the materiality of a witness when
applying this particular statute will not be disturbed absent a
clear showing of abuse of discreti~n.'~State v. Sanderson (1985),
214 Mont. 437, 449, 692 P.2d 479, 486. In Sanderson, we upheld a
trial court's denial of a defendant's motion to provide for the
attendance of an out-of-state witness. The trial court determined
that the testimony of the potential witness would duplicate
testimony to be offered by another defense witness, and therefore,
the out-of-state witness did not qualify as a material witness
under the statute.
In this case, both the victim and the defendant testified
about the content of the telephone conversations. The District
Court specifically noted that their testimony covered all the
information the California witnesses could possibly have testified
about. We hold that in this instance the trial judge had ample
reason to conclude the testimony of the out-of-state witnesses
would not be material and that it was not an abuse of discretion to
deny defendant's motion.
I11
Did the District Court properly deny defendant's motion to
disqualify the county attorney from prosecuting the case based on
a conflict of interest?
Subsequent to defendant's arrest, but prior to trial,
defendant filed a pro se civil suit against Jefferson County and
several of its officers. By law, the Jefferson County Attorney was
required to represent the county and its officers until the
county's insurance deductible had been met, at which time the
representation shifted to the insurer's retained counsel. On the
first day of trial, defendant made a motion to disqualify the
county attorney prosecuting the case. The trial judge pointed out
to the defendant that if this motion were granted his trial would
be delayed as long as six months. Despite the possible delay the
defendant requested that the motion be heard. Defendant alleged
that the county attorney's defense against defendant's civil suit
created a conflict of interest for the prosecutor in that it
created prejudice and animosity toward the defendant. The State
objected to the motion. The State argued that the prosecution had
begun well before the civil suit was filed, and that the
defendanttsprosecution had not been handled differently because of
the civil suit. The trial judge refused to disqualify the
prosecutor. On appeal, defendant presents little authority in
support of his position, and no evidence showing his prosecution
was handled any differently because of his pending civil suit. We
hold that the trial judge was well within his discretion in denying
defendanttsmotion to disqualify the county attorney.
Did defendantts conviction in State Court violate Montana's
double jeopardy statute?
Under the United States Constitution a federal prosecution
does not bar a subsequent state prosecution, nor does a state
prosecution bar a subsequent federal prosecution of the same person
for the same offense. United States v. Wheeler (1978), 435 U.S.
313, 98 S.Ct. 1079, 55 L.Ed.2d 303. However, Montana is among
those states which have by statute limited the concept of dual
sovereignty. Section 46-11-504, MCA (1989), provides in part that:
When conduct constitutes an offense within the concurrent
jurisdiction of this state and of the United States or
another state . . .
a prosecution in any such other
jurisdiction is a bar to a subsequent prosecution in this
state under the following circumstances:
(1) The first prosecution resulted in an acquittal
or in a conviction as defined in 46-11-503 and the
subsequent prosecution is based on an offense arising out
of the same transaction.
The double jeopardy argument was not raised by the defendant
prior to or during trial. The argument was first raised moments
before the ~istrict Court sentenced the defendant. Prior to
sentencing, counsel for both the State and the defendant made their
recommendations on sentencing to the District Court. During
defense counselts recommendation he argued that:
[I] the Court were to impose enhanced sentencing because
f
of the inclusion of a firearm that it would involve
double jeopardy for a case that the Defendant has already
been processed on as far as his possession of this
firearm in the federal system.
The double jeopardy argument was not presented in the form of a
written motion nor was any citation to authority submitted.
Immediately following the recommendations of counsel, the District
Court sentenced the defendant to ten years for felony assault, with
an additional ten years with five suspended for the use of a weapon
during the commission of the offense.
The general rule is that this Court will not entertain on
appeal issues not raised at trial. State v. Wiman (1989), 236
Mont. 180, 187, 769 P.2d 1200, 1204. Section 46-20-104, MCA
(1989), provides that subject to the exceptions in 5 46-20-701 (2) ,
MCA (1989), none of which apply in this case, failure to make a
timely objection during trial constitutes a waiver of the
objection. In addition, 5 46-13-102, MCA (1989), provides in part
that tt[d]efensesand objections based on defects in the institution
of the prosecution . . ." must be raised prior to trial by way of
a motion to dismiss or they are waived.
Additionally, the record before this Court concerning
defendant's double jeopardy allegation is entirely insufficient to
allow for review, even if the argument had been raised in a timely
fashion below. There was absolutely no evidence presented before,
during, or after trial concerning the facts and circumstances of
defendant's federal prosecution. It is impossible to determine
from the record if both prosecutions arose out of the same
transaction or out of different transactions altogether.
Concerning the timing of the two prosecutions, the record is only
slightly more enlightening. While not entirely clear, it appears
that the state prosecution was begun prior to the federal
prosecution and that the defendant was convicted in state court
prior to going to trial in federal court. If in fact this
chronology is correct, then defendant's conviction did not violate
Montana's double jeopardy statute. In any event, we hold that
defendant's double jeopardy argument must fail in that it was not
raised in a timely fashion at trial and because the record
presented to this Court for review is insufficient to establish a
double jeopardy defense.
v
Was defendant denied his right to a speedy trial?
Defendant was arrested on October 31, 1989, and his trial
began on April 11, 1990. The total unallocated delay between
defendant's arrest and trial was 161 days. Defendant contends this
delay violated his right to a speedy trial guaranteed by the Sixth
Amendment to the United States constitution and ~rticle11, 5 24,
of the Montana Constitution.
When analyzing alleged violations of a defendant's Sixth
Amendment right to speedy trial, this Court has adopted the four
factor balancing test set out in Barker v. Wingo (1972), 407 U.S.
514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. State v.
Curtis (1990), 241 Mont. 288, 787 P.2d 306. The four factors to be
considered are: (1) the length of the delay; (2) the reason for the
delay; (3) the assertion of the right by the defendant; and (4) the
prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at
2192, 33 L.Ed.2d at 117.
The first element, the length of the delay, is of primary
importance in this analysis. Unless the length of the delay is
determined to be presumptively prejudicial the analysis ends. Only
a finding that the length of delay is prejudicial will trigger an
analysis of the remaining three factors. Curtis, 787 P.2d at 313.
This initial determination concerning the length of the delay is
made by reviewing the entire delay without allocating the delay
attributable to either party. Curtis, 787 P.2d at 313. We have
also stated that "[wlhat length will be considered presumptively
prejudicial depends on the facts of each individual case." State
v. Heffernan (Mont. 1991), 809 P.2d 566, 568, 48 St.Rep. 327.
In State v. Wombolt (1988), 231 Mont. 400, 753 P.2d 330, we
found that a 214 day delay was sufficient to trigger a full speedy
trial analysis. In Wombolt, we set out a number of recent
decisions indicating that delays over 200 days will usually trigger
the full analysis. However, we have held that a delay as short as
175 days was presumptively prejudicial. State v. Bartnes (1988),
234 Mont. 522, 764 P.2d 1271. In this instance, we hold that a
delay of 161 days is insufficient to require further analysis of
the issue by the Court.
VI
Was it error for the District Court to allow certain testimony
by the State's expert witness, Connie Anders?
The State called ~onnieAnders, a domestic abuse specialist,
to testify as an expert witness. Defendant's objection that Anders
was not qualified as an expert was overruled by the District Court.
It is well settled that the question of whether a witness is
qualified as an expert is largely within the discretion of the
trial court and that the trial court's decision will not be
disturbed unless it is shown to have been an abuse of discretion.
State v. Eiler (1988), 234 Mont. 38, 52, 762 P.2d 210, 218-19.
Defendant alleges that the witness Anders was allowed to
testify concerning the credibility of the victim, contrary to this
Court's decision in State v. Harris (1991), 247 Mont. 405, 808 P. 2d
453. Defendant is correct that testimony by Anders concerning the
credibility of the victim would be improper under our holding in
Harris. However, a careful study of the record of the testimony
given by Anders reveals that at no time did she offer testimony on
the credibility of the victim. We hold that it was not error to
allow the testimony of Anders and that the District Court did not
abuse its discretion by recognizing the State's witness Anders as
an expert in the area of domestic abuse.
VII
Was the sentence imposed on the defendant by the District
Court excessive?
Defendant was sentenced to a term of ten years at the Montana
State prison for felony assault pursuant to 5 45-5-202 (2), MCA, and
a consecutive term of ten years, with five years suspended, for the
knowing use of a firearm during the commission of the offense,
pursuant to the weapon enhancement statute 5 46-18-221, MCA.
Defendant was designated a dangerous offender for purposes of
parole eligibility and was fined the sum of $50,000, with such fine
to paid out of any proceeds recovered by the Defendant in a civil
lawsuit which was pending at the time of sentencing. Defendant
alleges that the sentence is excessive in light of the nature of
the offense and the defendant's past record.
The general rule regarding sentencing is that a sentence
within the maximum statutory guidelines does not violate the Eighth
Amendment prohibition against cruel and unusual punishment. State
v. Watson (1984), 211 Mont. 401, 420-21, 686 P.2d 879, 889.
Defendant's sentence is within the statutory guidelines set out in
5 45-5-202 (2), MCA, and 5 46-18-221, MCA. Defendant states that he
has directed a challenge of his sentence to the Sentence Review
Division. This is the proper procedure to challenge the
equitability of a sentence as opposed to its legality. Watson, 686
P.2d at 889. The well settled rule concerning sentence review is
that "'we will not review a sentence on appeal for mere inequity or
disparity. Such a review is to be conducted by the Sentence Review
D i v i ~ i o n . State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d
~~~
1089, 1090-91.
We hold the sentence given the defendant did not violate the
Eighth Amendment prohibition against cruel and unusual punishment.
VIII
Did the District Court err in refusing to give defendant's
proposed jury instruction D-1, and in giving the State's proposed
instruction S-7?
Defendant objected to the District Court Is refusal to give his
proposed instruction D-1 which defined the term nimminent." The
State correctly argued that the term "imminent" does not refer to
any element of felony assault, but applies to the justifiable use
of force, which was never an issue in this case. Defendant also
objected to the State s proposed instruction S - 7 , which referred to
the concept of "reasonable apprehension1'which is relevant to the
crime of felony assault. The District Court correctly allowed the
instruction, finding it accurately reflected the law at the time.
In reviewing instructions, this Court has previously stated that
I1[t]he instructions must be viewed as a whole to determine whether
the defendant was limited in fairly presenting his theory.I1 Short,
702 P.2d at 984. We hold that the instructions given in this case
accurately reflected the law at the time and provided defendant the
opportunity to present his theory to the jury.
Af finned. /
We concur: