No. 95-345
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
TERRY LEE HAGBERG,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Craig R. Buehler, Lewistown, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, John
Paulson, Assistant Attorney General, Helena,
Montana; Thomas P. Meissner, Fergus County Attorney,
Lewistown, Montana
Submitted on Briefs: January 25, 1996
Decided: June 18, 1996
Filed:
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Defendant Terry Lee Hagberg (Hagberg) appeals from the jury
verdict finding him guilty of the charges of felony assault and
misdemeanor resisting arrest and from the Tenth Judicial District
Court, Fergus County's sentence and judgment. We affirm.
ISSUES
1. Did the District Court err in denying Hagberg's motion to
dismiss the information on grounds that the alleged facts failed to
state an offense?
2. Did the District Court err in denying Hagberg's motion to
dismiss alleging that he had been denied his right to a speedy
trial?
3. Did the District Court err in admitting evidence of
Hagberg's prior acts?
BACKGROUND
At approximately lo:20 p.m. on February 28, 1994, Hagberg and
his wife, Eleanor, stopped to get something to eat at the Hackamore
Supper Club in Lewistown, Montana. After learning that the
restaurant was closed, Hagberg and Eleanor returned to their truck.
The bar and restaurant employees heard yelling and banging on the
truck and called the sheriff's department for assistance. Hagberg
left before Deputy Sheriff Jack Barney and Detention Officer Troy
Eades arrived. After hearing the description of the vehicle over
the radio, Highway Patrol Officer Mantooth spotted the vehicle,
turned around, and caught up with it. The vehicle pulled out to
2
pass a car, stayed in the passing lane, and while in the no-passing
zone, passed another car and continued over a hill.
After Officer Mantooth turned on his top lights, the vehicle
swerved a little bit and pulled off the road. Officer Mantooth
pulled in behind the Hagberg's and got out of his car. As he
started walking toward the vehicle, Eleanor got out of the driver's
side. Officer Mantooth asked her to get back in the vehicle and
roll down her window, to which she responded that it did not work.
Officer Mantooth reached in the door with his left hand and rolled
down the window, stating that it did indeed work. Hagberg then
said "why don't you let her shut the door?" Officer Mantooth then
flipped his flashlight over to glance at Hagberg. As he did so, he
noticed an empty holster on the seat between them. He could
clearly see that the holster did not have a gun in it. Officer
Mantooth looked back over to Hagberg who had bent over with his
arms between his legs and his hands by the floor. Officer Mantooth
noticed that Hagberg had a glazed look "like nobody was home .
it spooked you" and smelled like an alcoholic beverage.
At that time, Officer Mantooth realized that he needed to back
off from the situation; he told Eleanor that when she found her
driver's license, registration, and insurance to bring them back to
his patrol car. Officer Mantooth radioed to Deputy Barney for back
up assistance because he thought he had a situation with a man with
a gun. Eleanor started the vehicle and pulled forward as though
she was going to leave, but stopped after Officer Mantooth hit his
airhorn. Officer Mantooth testified that when the vehicle pulled
3
forward, he thought he was going to have a pursuit. However, the
Hagberg's stopped and waited in their vehicle and Officer Mantooth
waited in his car until assistance arrived.
When Deputy Barney and Troy Eades arrived, Officer Mantooth
told them that he thought Hagberg had a gun, that there was an
empty holster on the seat, that Eleanor reacted nervously, that he
thought Eleanor was under the influence of alcohol, and that he
could not do anything with Hagberg or Eleanor until he was sure
that he was safe and that Hagberg no longer had a gun. Based on
his training in defending against hostile situations, Officer
Mantooth determined that he would approach the vehicle from the
passenger's side, see if he could get Hagberg to come out and if he
would not come out voluntarily, he would have to pull Hagberg out
and put him down on the ground.
Officer Mantooth approached the passenger side of the vehicle,
opened the door, and said' "I need you to step out." Hagberg
attempted to close the door on Officer Mantooth's shoulder while
his other hand was still down between his knees. Officer Mantooth
then grabbed Hagberg, spun him out of the truck, and brought him
down on the ground. Hagberg had a loaded black single-action
revolver in his hand. Officer Mantooth grabbed the hammer of the
revolver to prevent the gun from discharging. As Deputy Barney
came around the back of the truck, Officer Mantooth was pulling
Hagberg out of the truck. Deputy Barney helped wrench the gun from
Hagberg. He unloaded and secured the gun while Officer Mantooth
tried to handcuff Hagberg. Officer Mantooth and Troy Eades had to
4
physically restrain Hagberg and wrestle his hands behind his back
in order to handcuff him.
Officer Mantooth then heard Eleanor screaming that she wished
that she had not left her gun at home. Eleanor had locked the door
and would not open it. After Deputy Barney reached in from the
passenger's side and removed the keys from the ignition, Eleanor
unlocked the door but still refused to come out. Officer Mantooth
removed her from the truck and placed her in handcuffs. Eleanor
yelled "Honey, they are violating me" to which Hagberg returned a
rude comment and threatened to kill the officers. The officers
took Hagberg and Eleanor to the Fergus County jail.
On March 30, 1994, the Fergus County Attorney filed an
information in the Tenth Judicial District Court, charging Hagberg
with felony assault and misdemeanor resisting arrest. The State
supported its motion for leave to file the information with an
affidavit setting forth the facts of the charges. At his
arraignment, Hagberg entered a not guilty plea to each charge. The
State filed a motion to revoke bail alleging that Hagberg had
violated the conditions of his release by committing additional
crimes and by using alcohol. At the July 25, 1994 hearing on the
motion, Hagberg admitted the violations and stated that he would
voluntarily enter an inpatient chemical dependency program. The
District Court entered an order for the program which was
subsequently rescheduled.
On July 25, 1994, the State filed a notice of intent to
introduce evidence of other acts of Hagberg's which occurred on
5
March 4, 1979 and on October 24, 1993. Hagberg filed an objection
to the use of the other acts evidence. On September 28, 1994, the
District Court issued an order releasing Hagberg from bail and
setting the trial for November 9, 1994. For reasons not reflected
in the District Court file, the trial did not occur as scheduled in
November. The district court judge's term ended in January 1995,
therefore the new district court judge held a scheduling conference
where he reset the trial for April 3, 1995. On March 1, 1995,
Hagberg filed a motion to dismiss for lack of a speedy trial.
On March 10, 1995, Hagberg filed another motion to dismiss,
this motion alleging that the arrest had been illegal. Following
a hearing, the District Court denied this second motion to dismiss.
The State withdrew its request to introduce evidence of Hagberg's
1979 incident, yet restated its request to introduce evidence of
Hagberg's 1993 incident. On the first day of trial, the District
Court ruled that the State could introduce evidence of the 1993
incident.
The jury returned a guilty verdict on both the felony assault
charge and the misdemeanor resisting arrest charge. The District
Court sentenced Hagberg to 44 days in the Fergus County Jail for
which Hagberg received credit for 44 days he previously served; 3
years in the custody of the Department of Corrections, all of which
were suspended; and 2 years in the custody of the Department of
Corrections for use of a weapon. Hagberg appeals from the jury
verdict and from the sentence and judgment entered by the District
Court.
6
L-- -
DISCUSSION
1. Did the District court err in not dismissing the
information on the grounds that the facts failed to state a crime?
Hagberg's arguments are twofold. First, he argues that his
arrest was illegal. Second, he argues that the facts did not rise
to the level of an offense. The State counters that the arrest was
a legal warrantless arrest and that the affidavit in support of the
information set forth sufficient facts to support a felony assault
conviction. We review a motion to dismiss to determine whether the
district court abused its discretion in granting or denying the
motion. State v. Pinkerton (1995), 270 Mont. 287, 290, 891 P.2d
532, 535.
Section 45-5-202, MCA, provides that "A person commits the
offense of felony assault if he purposely or knowingly causes: (a)
bodily injury to another with a weapon; (b) reasonable apprehension
of serious bodily injury in another by use of a weapon; or (c)
bodily injury to a peace officer or a person who is responsible for
the care or custody of a prisoner."
Hagberg relies solely on State v. Merseal (1975), 167 Mont.
412, 538 P.2d 1366, for his argument that the facts fail to support
the charge of felony assault. In Merseal, we determined whether
substantial evidence supported the verdict. We held that the
record was deficient of credible evidence in support of the
conclusion that the defendant's conduct placed the officer in
reasonable apprehension or fear. Merseal, 538 P.2d at 1368.
Specifically, the officer presented inconsistent testimony on
whether he would have to shoot at the defendant if the defendant
had reached for his gun. Without first searching the car for a
gun I the officer rode in the defendant's car when he knew that the
defendant probably had his gun in the car. Merseal, 538 P.2d at
1368.
Merseal is distinguishable from the instant case in that there
was no conflicting testimony regarding the salient facts that
support Officer Mantooth's reasonable apprehension of serious
bodily harm by use of a wea'pon. Moreover, he did not put himself
in a situation like the officer in Merseal. Officer Mantooth had
merely walked up to Hagberg's car to ask for Eleanor's license and
registration when he saw the empty holster on the seat and Hagberg
sitting with his hands between his legs. While the affidavit
supporting the information may not have been artfully and
comprehensively drafted, it nonetheless recited sufficient facts to
indicate a probability that Hagberg committed an offense. See
State v. Ramstead (1990), 243 Mont. 162, 793 P.2d 802.
In State v. Misner (1988), 234 Mont. 215, 763 P.2d 23, we
addressed the issue of whether there was sufficient evidence to
convict the defendant of felony assault. In Misner, the essence of
the defendant's argument was that the victim neither saw nor came
into close enough physical proximity to the gun. However, where
the victim unequivocally testified to his apprehension of serious
bodily injury, we concluded that it was not necessary that the
victim personally observe the gun to experience reasonable
apprehension of serious bodily injury. Misner, 763 P.2d at 25.
8
Similarly, Officer Mantooth unequivocally testified to his
apprehension of serious bodily injury. He smelled alcohol, Hagberg
sounded belligerent and had a glazed look on his face, there was an
empty holster on the seat of the car, and Hagberg looked as though
he was holding a gun out of Officer Mantooth's sight. We conclude
that Officer Mantooth had reason to be apprehensive of serious
bodily injury and that the State had sufficient facts on which to
charge Hagberg with felony assault.
Hagberg also claims that he was illegally arrested because he
had not committed nor was'committing an offense before Officer
Mantooth pulled him from the car.
A peace officer may arrest a person when a warrant has
not been issued if the officer has probable cause to
believe that the person is committing an offense or that
the person has committed an offense and existing
circumstances require immediate arrest.
Section 46-6-311, MCA. Hagberg cites to Merseal to support his
argument. However, Merseal did not involve a warrantless arrest.
Moreover, in Merseal, we concluded that the facts may well have
justified the officer drawing his weapon or placing the defendant
under physical restraint although the facts may not have justified
a conviction for felony assault. Merseal, 538 P.2d at 1368.
Contrary to Hagberg's arguments, there is sufficient evidence
to show that Officer Mantooth had reasonable apprehension of bodily
injury from Hagberg's weapon before pulling Hagberg out of the
truck. Again, Hagberg's glazed and spooky look, the involvement of
alcohol, the empty holster, Officer Mantooth's strong suspicions
that Hagberg had a gun between his legs, and Hagberg's demeanor
9
created reasonable apprehension of serious bodily harm. Therefore,
we hold that the District Court did not abuse its discretion in
denying Hagberg's motion to dismiss.
2. Did the District Court err in denying Hagberg's motion to
dismiss alleging that he had been denied his right to a speedy
trial?
Hagberg claims that the District Court failed to provide him
with his constitutional right to a speedy trial. The State
recognizes a defendant's right to a speedy trial as guaranteed by
the United States and Montana Constitutions, but contends that
Hagberg was not denied that right.
The Sixth Amendment to the United States Constitution and
Article II, section 24 of the Montana Constitution guarantee the
right to a speedy trial to the accused in a criminal prosecution.
State v. Thompson (1993), 263 Mont. 17, 31, 865 P.2d 1125, 1134.
A speedy trial claim is a question of constitutional law. State v.
Cassidy (1978), 176 Mont. 385, 388, 570 P.2d 735, 737. We review
questions of law de nova to determine whether the court's
interpretation of the law is correct. Carbon County v. Union
Reserve Coal Co., Inc. (19951, 271 Mont. 459, 469, 898 P.2d 680,
686; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470,
414-75, 803 P.2d 601, 603.
"This Court uses the test from Barker v. Wingo (1972), 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a
defendant's constitutional right to a speedy trial has been
violated." State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d
10
285, 287. This test requires a balancing of the following four
factors: 1) length of the delay; 2) reason for the delay; 3)
assertion of the right by the defendant; and 4) prejudice to the
defendant. We weigh all four factors in light of the surrounding
facts and circumstances, engaging in a sensitive balancing of the
defendant's right to a speedy trial and the State's interest in
public justice. State v. Weeks (1995), 270 Mont. 63, 72, 891 P.2d
477, 482.
The threshold factor, length of the delay, determines whether
a full speedy trial analysis is necessary. The initial
determination concerning the length of delay is made without
allocation of delay to either party. Thomnson, 865 P.2d at 1134-
35. If the length of delay is over 200 days, the delay is
presumptively prejudicial and requires further analysis. This
Court has not established a precise quantification of the
triggering time due to the complexity of each case and a
defendant's active avoidance of trial. State v. Curtis (1990), 241
Mont. 288, 304, 787 P.2d 306, 316. In this case, the State
concedes that the delay of 399 days is sufficient to raise a
presumption of prejudice requiring further analysis.
In considering the second factor, reason for the delay, we
allocate the delay by determining the delay attributable to each
party. Thompson, 865 P.2d at 1135; Matthews, 894 P.2d at 287. In
the instant case there are three segments of delay: 1) the period
between the date of arrest and the first trial date (February 28,
1994 to August 22, 1994); 2) the period between the first trial
11
date and the second trial date (August 22, 1994 to November 9,
1994); and 3) the period between the second trial date and the
third trial date (November 9, 1994 to April 3, 1995). Hagberg
contends that none of the delay is attributable to him. The State
on the other hand contends that the time between Hagberg's arrest
on separate charges and the second trial date are attributable to
Hagberg because the arrest led to revocation of his bail and the
decision to undergo inpatient chemical dependency treatment. The
State also argues that the remainder of the delay was institutional
and should therefore be weighed less heavily against the State.
The institutional delay was partially a result of the district
court judge retiring and was not a result of oppressive pretrial
tactics. Therefore, we conclude that the delay can be attributed
to both Hagberg and the State but that the State's delay was
largely institutional and not a result of requests for continuances
or impermissible pretrial tactics.
Hagberg satisfied the third factor, assertion of the right to
a speedy trial, by filing a motion to dismiss a month before the
trial. In considering the fourth factor, prejudice to the
defendant, this Court has identified three factors in determining
prejudice: 1) pretrial incarceration, 2) anxiety and concern, and
3) impairment of defense. Thompson, 865 P.2d at 1135. Impairment
of the defense is the most critical of these three factors.
Hagberg asserts that he was incarcerated for 66 days after his
arrest and prior to trial. However, as the State contends and the
District Court noted, only 7 of those 66 days were for Hagberg's
12
initial arrest, 28 of those days resulted from Hagberg's voluntary
admission into the chemical dependency treatment program and the
remaining 31 days followed his subsequent arrest and bail
revocation.
Hagberg also contends that he suffered from pretrial anxiety
and concern yet his testimony did not elicit evidence of uncommon
or extreme anxiety. Hagberg emphatically asserts that the delay
impaired his defense. Specifically, Hagberg points out
inconsistencies in the testimonies of the officers. However,
Hagberg testified that the incident was still fresh in his memory,
that witnesses were still available, and that in fact his defense
had not been impaired by the passage of time.
In summary, although the delay in this case was quite long,
under the circumstances, Hagberg was not able to show that the
reasons for the delay were substantially the State's or that the
delay prejudiced his defense. In fact, Hagberg was responsible for
much of the delay. Additionally, the State's delay can be
attributed to institutional factors such as the retirement of the
district court judge and cannot be attributed to impermissible
pretrial tactics for delay or requests for continuances.
Accordingly, we conclude that the District Court correctly
interpreted the law in denying Hagberg's motion to dismiss based on
the alleged lack of a speedy trial.
3. Did the District Court err in admitting evidence of
Hagberg's prior acts?
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Hagberg contends that the District Court improperly admitted
evidence of his prior acts. We review evidentiary rulings to
determine whether the district court abused its discretion. State
v. Pace (19951, 272 Mont. 464, 466, 901 P.2d 557, 559. The
district court has broad discretion to determine whether evidence
is relevant and admissible, and absent a showing of an abuse of
discretion, the court's determination will not be overturned.
PaceI 901 P.2d at 559.
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Rule 404(b), M.R.Evid., governs the admissibility of other
crimes, wrongs, or acts. It states:
Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
In State v. Just (1979), 184 Mont. 262, 267-68, 602 P.2d 957,
961, we held that the State had to meet four requirements before
introducing evidence of other crimes, wrongs, or acts. We modified
these requirements in State v. Matt (1991), 249 Mont. 136, 814 P.2d
52, setting forth the basis for admission of evidence of other
crimes, wrongs, or acts as:
1) The other crimes, wrongs or acts must be similar.
2) The other crimes, wrongs or acts must not be
remote in time.
3) The evidence of other crimes, wrongs or acts is
not admissible to prove the character of a person in
order to show that he acted in conformity with such
character; but may be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident.
4) Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues,
14
misleading of the jury, considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
Matt
-I 814 P.Zd at 56.
First, the incident in the instant case is very similar to the
incident in which Hagberg was involved in 1993. On October 24,
1993, Highway Patrol Officer Cal Janes observed Hagberg swerve back
and forth on the southbound on-ramp of Interstate 15. The pickup
then came to a stop on the side of the highway. Hagberg got out
and started to urinate on the highway. Officer Janes pulled up and
approached Hagberg who was having difficulty standing and had to
use the door of his pickup truck for stability. As Officer Janes
asked Hagberg to walk to the rear of the pickup, Hagberg told
Eleanor, who was in the passenger seat, to kill Officer Janes.
Officer Janes grabbed Hagberg, marched him to the back of the
pickup, searched him for weapons, handcuffed him, and placed him in
the back seat of the patrol car. All of the weapons in the pickup
were loaded. Officer Janes charged Hagberg with driving while
under the influence of alcohol.
The District Court concluded that the incident was
sufficiently similar to the.charged offense, that the incident was
sufficiently near in time to the charged offense, that the incident
was probative of Hagberg's intent during the charged offense, and
that the probative value of the evidence was not outweighed by
unfair prejudice to Hagberg. We agree.
A prior act need not be identical to the offense charged to be
admissible under the similarity requirement of the Just rule.
15
Moreover, we review the acts rather than the charges. State v.
Brogan (1995), 272 Mont. 156, 166, 900 P.2d 284, 290. In the
instant case, both incidents involved possible intoxication while
driving late at night, both incidents involved loaded guns in the
car, and importantly, both incidents involved Hagberg displaying
hostility and resistance to the officers requiring them to respond
defensively to a perceived threat to their safety.
Second, October 24, 1993, and February 28, 1994, the dates of
the two incidents, are not remote in time. Third, the purpose of
admitting the evidence of Hagberg's prior acts was probative of
Hagberg's intent during the incident which led to the present
charges. The prior act was relevant to Hagberg's hostility toward
the highway patrol officers who stopped his vehicle and was
therefore probative of Hagberg's mental state during the assault.
See State v. Matson (1987), 227 Mont. 36, 736 P.2d 971.
Finally, the District Court also correctly determined that the
probative value of the prior acts evidence was not substantially
outweighed by the danger of unfair prejudice to Hagberg. It is
inevitable that the introduction of evidence of a prior crime will
have some prejudicial effect on a defendant. State v. Anderson
(Mont. 1996) _ P.2d _, 53 St.Rep. 172, 174. "However, when the
prior crime evidence meets the first three elements of the modified
just rule, the prior crime evidence necessarily carries great
probative weight." Anderson, 53 St.Rep. at 174. Weighing the
probative value of the prior crime evidence against the prejudice
to Hagberg and considering the first three requirements of
16
admitting evidence of other acts, we conclude that the District
Court did not err in allowing evidence of Hagberg's prior act.
Affirmed.