No. 92-328
IN THE SUPFZME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
DALE LEE JOHNSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial ~istrict,
In and for the County of Dawson,
The Honorable Dale Cox, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F, Hooks, Appellate ~efender f f i c e , Helena,
o
Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Cregg Coughlin,
Assistant Attorney General, Helena, Montana
Gerald J. N a v r a t i l , Dawson County Attorney ' s Off ice,
Glendive, Montana
MAR 2 1993.
D Submitted on ~ r i e f s : November 12, 1992
Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal from a jury verdict finding the appellant,
Dale Lee Johnson (Johnson), guilty of the crime of burglary. This
appeal is from the Seventh Judicial District of the State of
Montana, in and for the County of Dawson, the Honorable Dale Cox
presiding. We affirm.
The following are the restated issues on appeal:
1. Has Johnson waived any claim that testimony of the
accomplice was insufficiently corroborated?
2. Has Johnson waived any objection to the place of trial?
3. Was there sufficient evidence from which the jury could
determine that the crime was committed in Dawson County?
4. Has Johnson waived any claim that the State improperly
bolstered the credibility of its witness?
5. Was Johnson provided effective assistance of counsel?
During the evening of September 27 or the morning of September
28, 1991, Larry's Interstate Exxon in Glendive, Montana, was
burglarized. The owner of the gas station testified that he found
a window at the rear of his station had been damaged, and the
entire plate glass in the front door to the business knocked out.
The owner testified that cigarettes, jerky, beer and coins were
stolen from the business.
At the time of the burglary in September, 1991, Johnson and
his common-law wife, Lori, were sharing their home with several
people: Terri; her son, Beau; and Terrils boyfriend, Dave. Prior
to the burglary Terry Kelly (Kelly) had resided with Johnson, but
2
at the time of the burglary Kelly was living in another house in
Glendive with Daryl Thies (Thies) and Theresa Upchurch.
Kelly was picked up by the Glendive police after he had gotten
into a fight in town and he was eventually bussed out of town
following the affair. At the time Kelly was picked up, the police
asked him whether he had anything to do with the Exxon burglary; he
denied any involvement. In January 1992, Kelly was arrested in
Great Falls, Montana, and after being returned to Glendive he gave
the authorities a statement as to what had happened during the
evening of September 27, 1991.
During the trial, Kelly stated that on the evening of
September 27, 1991, he, Johnson and Thies were drinking beer at the
house Kelly shared with Thies and Upchurch. Kelly testified that
Johnson, who was a former employee of Larry's Interstate Exxon,
knew of a place that "would be easy to knock . . . off ." Kelly
testified that he did not think it was such a good idea, but he
went along with the plan due to being "drunk" at the time.
According to Kelly, he and Johnson left on a motorcycle for
Johnson's house where they retrieved plastic bags and a pillowcase
before driving to the Exxon station. They parked the motorcycle
off the road in some trees. Kelly testified that while Johnson
went to the rear of the building Kelly attempted to kick in the
front window; he eventually knocked the front window out with a
large piece of wood. Once inside, Kelly grabbed a jar of coins
totalling approximately $50 and he took cigarettes from the
station's freezer; Johnson took jerky from the counter. Kelly and
Johnson left the station and went to Johnson's house where they
divided the coins, cigarettes and jerky.
Testimony at trial included that of one of Johnson's house
guests, Terri, who testified that she awoke around 3: 3 0 to 4:00
a.m. on the morning of September 28, 1991. Terri testified that
after she entered the kitchen she saw Kelly and Johnson at the
kitchen table which was strewn with beer, cartons of cigarettes,
and jerky. Terri testified that the two were drinking beer and
"talking about what they had just done at Larry's Exxon." She also
saw other cartons of cigarettes and containers of jerky in the
freezer. From what she observed and heard from Kelly and Johnson,
Terri testified that she got the impression that both Kelly and
Johnson had participated in the commission of the burglary on
Larry's Interstate Exxon.
The jury found Johnson guilty of burglary and not guilty of an
unrelated charge of theft.
I
Has Johnson waived any claim that testimony of the accomplice
was insufficiently corroborated?
It is Johnson's position that the testimony of Kelly, an
accomplice, was insufficiently corroborated. Kelly was an
accomplice to the burglary and was charged with the burglary along
with Johnson. He pled guilty to that offense and was sentenced by
the District Court in Dawson County. There is no question that
Kelly was responsible or legally accountable for the burglary,
therefore, under 5 46-16-213, MCA, his testimony, standing alone,
would not have been sufficient to convict Johnson.
While Johnson arguesthat evidence corroborating the testimony
of the accomplice, Kelly, was insufficient to sustain a conviction,
there is nothing in the record that disclosed a challenge to the
sufficiency of the corroborative evidence, or the evidence as a
whole, by way of either a motion for an acquittal or a motion for
a directed verdict. We have noted in numerous opinions that this
Court will not notice an allegation of error raised for the first
time on appeal when the appellant had t h e opportunity to make such
an objection at the trial level. See 5 46-2O-l04(2), MCA; State v.
Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439. While Johnson did
move the District Court to dismiss the charges on the ground that
h e had not been personally identified in court by Kelly, he did not
move for a directed verdict or an acquittal based upon a claim of
insufficiency of the evidence, either as a whole or as to evidence
corroborating the accomplice testimony. We conclude that Johnson
waived any claim that t h e accomplice testimony was insufficiently
corroborated.
Has Johnson waived any objection to the place of trial?
On appeal, Johnson raises for the first time the issue that
the State f a i l e d t o sufficiently prove at t r i a l t h a t the burglary
was committed in Dawson County. The question is one of venue,
Although venue is not an element of the crime, it is a
jurisdictional fact that must be proven at trial just as any other
material element. State v. Preite (19771, 172 Mont. 318, 323, 564
P.2d 598, 600-601. Unlike a claim that venue is improper, which
must be raised before trial according to g 46-3-111, MCA, the issue
of whether the State has satisfied its burden, may be raised for
the first time on appeal. State v. Bad Horse (1980), 185 Mont.
507, 515, 605 P.2d 1113, 1117.
I11
Was there sufficient evidence from which the jury could
determine that the crime was committed in Dawson County?
In a criminal case, venue must be proven beyond a reasonable
doubt. State v. Bretz (l979), 185 Mont. 253, 285, 605 P.2d 974,
993, cert. denied, 444 U.S. 994 (1979), reh'g denied, 444 U.S. 1104
(1980). We find there was sufficient evidence presented to the
jury by which it could have reasonably concluded that the offense
was committed in Dawson County. First, the owner of Larry's Exxon,
Larry Schlenz, testified that Larry's Interstate Exxon station was
located on Highway 16, just north of the interstate on the Sidney
highway. Next, Kelly testified that the station was close to the
interstate on the Sidney highway. Finally, Johnson's common-law
wife, Lori, agreed that the station was located "out at the Sidney
highway on the interstate."
Even Johnson acknowledges in raising this issue that direct
testimony that the offense was committed in a specific county is
not required to prove venue, noting several Montana cases wherein
this Court determined that venue was sufficiently proven by
witnesses' references to either a city or city streets. See, e.g.,
State v. Williams (1949), 122 Mont. 279, 202 P.2d 245; State v.
Jackson (1979), 180 Mont. 195, 589 P.2d 1009. In the present case,
three witnesses testified that Larry's Exxon station was on the
Sidney highway (Highway 16) near the interstate. We note that
these highways intersect in south-central Dawson County and that it
is approximately twenty miles from that intersection to the county
line. The jury heard sufficient evidence to determine that the
offense occurred in Dawson County. We conclude that the jury
properly determined that the crime was committed in Dawson County.
IV
Was Johnson waived any claim that the State improperly
bolstered the credibility of its witness?
Johnson argues that the District Court erred in permitting the
State to question Terri about the threats made against her by
Johnson after he was charged with the burglary. His only objection
to her testimony at the time of trial was that it was irrelevant.
Johnson, in order to preserve for appeal any objection he had at
the trial court level must raise the issue before the ~istrict
Court and may not address the issue on appeal if it was not raised
below. "It is a well-settled rule that on appeal this Court will
consider for review only those questions raised in the trial
court.I1 State v. Campbell (1981), 191 Mont. 75, 79, 622 P.2d 200,
202. We conclude that Johnson waived any claim that the State
improperly bolstered the credibility of its witness.
v
Was Johnson provided effective assistance of counsel?
Defendant contends that his counsel incorrectly failed to
request a jury instruction providing that accomplice testimony must
be viewed with distrust. Defendant relies on State v. Laubach
(1982), 201 Mont. 226, 653 P.2d 844, in which this Court reversed
Laubach's conviction because of the trial court's failure to
instruct the jury "that accomplice testimony must be viewed with
distrust.I1 Laubach, 653 P.2d at 847. The controlling statute
referred to in Laubach is 5 26-1-303(4), MCA (1991), which states
in pertinent part:
Instructions to jury on how to evaluate evidence. The
jury is to be instructed by the court on all proper
occasions that:
(4) the testimony of a person legally accountable
for the acts of the accused ought to be viewed with
distrust. [Emphasis supplied.]
Laubach concluded that the language of the statute was mandatory
and reversed the conviction, ordering retrial.
As underscored, 5 26-1-303 (4), MCA, provides that the jury is
to be instructed on "all proper occasions." We conclude the facts
in Laubach provided a proper occasion for the use of the jury
instruction. However, we conclude that the Laubach holding was too
broad. We conclude the holding should be limited by the wording of
the statute. We hold that Laubach is overruled to the extent that
it requires giving the instruction in all cases involving
accomplice testimony. The record in this case disclosed
significant accomplice testimony. If the defendant had requested
an instruction on accomplice testimony, then under the statute such
instruction should have been given.
The issue before us, however, is whether it was ineffective
assistance of counsel for defense counsel to fail to request such
an instruction. In his presentation the defendant contended he was
not present at the scene of the crime. An accomplice instruction
could be considered inconsistent with that defense. It is clear
that the giving of the instruction under the circumstances of this
case involved a tactical decision on the part of counsel. We will
not second guess such tactical choices. We conclude defendant has
failed to demonstrate any error on the part of his counsel in
failing to request the instruction. We hold defendant was provided
effective assistance of counsel, even though counsel did not
request the accomplice instruction.
Af f irmed.
We concur: - 9
4
March 2, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
WILLIAM F. HOOKS
Appellate Defender Office
208 North Montana, Suite 104
Helena, MT 59620
HON. MARC RACICOT, Attorncy General
Cregg Coughlin, Assistant
Justice Bldg.
Helena, MT 59620
Gerald J. Navratil
Dawson County Attorney's Office
P.O. Box 1307
Glendive. MT 59330
ED SMITH
CLERK OF THE SUPREME COURT
STATE QF MONTANA