State v. Castle

96-172

No. 96-172

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DOUGLAS CASTLE,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Vernon E. Woodward, Hendrickson, Everson, Noenning & Woodward,
Billings, Montana

For Respondent:

Dennis Paxinos, Yellowstone County Attorney; Joseph P. Mazurek,
Attorney General, Cregg W. Coughlin, Assistant Attorney General,
Helena,
Montana

Heard: June 17, 1997
Submitted: June 19, 1997

Decided: November 13, 1997
Filed:

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (1 of 16)4/16/2007 4:12:31 PM
 96-172

__________________________________________
Clerk

Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Douglas Castle (appellant) appeals from a jury verdict and judgment of the
Thirteenth Judicial District Court, Yellowstone County convicting him of deliberate
homicide. We reverse and remand.
Appellant raises two issues on appeal.
1. Did the District Court err when it refused appellant's proposed instruction
that assault is a lesser included offense of deliberate homicide?
2. Did the admission of Cassell's hearsay statements violate the Montana Rules
of Evidence?
FACTUAL BACKGROUND
On November 18, 1994, John Formo (Formo) was murdered. His body was
discovered the next morning in a dumpster in an alleyway behind the 500 block of
Birch
Avenue in Laurel, Montana. Detectives from the Yellowstone County Sheriff's
Department and police officers from the Laurel Police Department who investigated the
scene noticed a trail of blood in the snow leading to the dumpster from the backdoor
of
a house located at 506 Birch Avenue. They thus took the occupants of that house
into
custody, including Michelle Herren, who was disabled and was the tenant of the home,
Walter Cassell, Thomas "Bear" Baker, Forrest "Snake" Snyder, and appellant Douglas
Castle.
Appellant initially denied having any knowledge of Formo's death. During
subsequent questioning by Detective Jensen, however, he stated that he and Snyder or
"Snake" had met Formo near the railroad tracks earlier during the day of November 18,
where they drank alcohol. Appellant estimated they drank for about an hour and a
half,
and then went to the house on Birch Street where they continued drinking. He told
Detective Jensen that while they were drinking at that house, Formo said "Fuck the
FTRA," which upset him. "FTRA" stands for the Freight Train Riders of America, of
which appellant claimed to be a member. Snyder then hit Formo several times while
the
two stood in the kitchen area. Appellant admitted that he also then went into the
kitchen
and punched Formo three times in the jaw and once on the side of the head. When he
hit Formo, Formo began bleeding in the jaw area. Appellant then went to the
bathroom.

When appellant came out of the bathroom, Formo was lying on the living room
floor in front of the couch. Appellant watched Cassell walk into the kitchen and
come
out with a knife. Cassell proceeded to stab Formo numerous times. Appellant also
saw
Cassell kick Formo once in the head.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (2 of 16)4/16/2007 4:12:31 PM
 96-172

When Cassell finished stabbing Formo, it was not yet dark. Appellant estimated
that they thus waited about 30 minutes before attempting to place Formo in a garbage
bag. When they were unable to do so, Cassell and he carried the body outside and
placed it in the dumpster behind the house. Appellant claims that Formo was dead
when
they put the body in the dumpster.
Detective Jensen also questioned Cassell, who made a statement. According to
Cassell, everyone present at the house was drinking the night of the murder. Snyder,
Baker and Formo were in the kitchen, and Formo broke a window. Baker then hit
Formo. Next, appellant walked into the kitchen and hit Formo. After being punched,
Formo walked into the living room, where Cassell confessed that he began beating
Formo. When he beat Formo, blood went everywhere. Cassell further confessed that
he then went into the kitchen, got a knife, came back and stabbed Formo. Later,
appellant and he carried the body to the dumpster. At first, Cassell stated that
Formo
was dead when they took him to the dumpster. However, he later stated that Formo was
still alive, and that appellant was going to cut Formo's throat.
The State subsequently charged appellant by information with deliberate
homicide.
Appellant pleaded not guilty. He filed a motion in limine to exclude certain hearsay
statements of Cassell that implicated appellant. The District Court denied the
motion.
Appellant also offered a proposed jury instruction regarding the offense of
assault. His
theory of the case was that he was guilty only of assaulting, but not murdering,
Formo.
The District Court refused the proposed instruction. Following a jury trial,
appellant was
found guilty of deliberate homicide and was sentenced to 60 years in prison. He now
appeals. ISSUE ONE
Did the District Court err when it refused appellant's proposed instruction that
assault is a lesser included offense of deliberate homicide?
It is a fundamental rule in this state that a criminal defendant is entitled to
jury
instructions that cover every issue or theory having support in the evidence. State
v.
Gopher (1981), 194 Mont. 227, 229, 633 P.2d 1195, 1196 (citing State v. Buckley
(1976), 171 Mont. 238, 557 P.2d 283.) A defendant may be convicted only of the
"greatest included offense about which there is no reasonable doubt." Section 46-16-
606,
MCA. A defendant is therefore entitled to an instruction on a lesser included
offense if
any evidence exists in the record from which the jury could rationally find him
guilty of
the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; State v.
Fisch
(1994), 266 Mont. 520, 522, 881 P.2d 626, 628. The purpose of this rule is to ensure
reliability in the fact-finding process. It avoids the situation where the jury,
convinced
that the defendant is guilty of some crime, although not necessarily the crime
charged,
convicts the defendant rather than let his action go unpunished simply because the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (3 of 16)4/16/2007 4:12:31 PM
 96-172

only
alternative was acquittal. Gopher, 633 P.2d at 1197-98.
Appellant maintains that the very harm that the rule seeks to avoid occurred in
this
case when the District Court refused his proposed jury instruction on assault. He
contends that under õ 46-1-202(8)(c), assault is a lesser included offense of
deliberate
homicide and that evidence at trial supported his defense that he was guilty only of
assaulting, but not murdering, the victim. Alternatively, he argues that even if
assault
is not necessarily a lesser "included" offense of a deliberate homicide, it is a
lesser
"related" offense and as such he was entitled to the instruction. In support of that
alternative argument he cites Keeble v. United States (1973), 412 U.S. 205, 93 S.Ct.
1993, 36 L.Ed.2d 844; People v. Williams (Mich. 1985), 374 N.W.2d 158; and People
v. Geiger (Cal. 1984), 674 P.2d 1303. He maintains there was a legitimate question
as
to causation of the murder and that the District Court "gutted" his defense by
refusing
his instruction.
The State, on the other hand, argues that the trial court did not err in
refusing to
instruct the jury on the offense of assault, because assault is not a lesser
included offense
of deliberate homicide. It contends that this Court has not adopted the "inherent
relationship" test found in Keeble. Instead this Court applies the test announced in
Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct.180, 76 L.Ed.2d 306 to
determine whether an alleged lesser offense is included within the greater
offense. State
v. Steffes (1994), 269 Mont. 214, 232, 887 P.2d 1196, 1207. Under that test, the
court
'looks to the statutory elements of the respective crimes to determine if each
offense
requires proof of a fact which the other does not . . . ." Steffes, 887 P.2d at
1207. The
State argues that the Blockburger test is not satisfied because deliberate homicide
requires
proof that a person purposely or knowingly causes the death of another, while
assault is
committed when the person purposely or knowingly causes bodily injury to another.
Sections 45-5-102 and 45-5-201, MCA. Because each requires proof of an element that
the other does not, assault is not a lesser included offense.
Upon reviewing this case, we must first determine whether, as a matter of law,
assault is a lesser included or a lesser related offense of deliberate homicide. If
it is, we
must then determine whether appellant's proposed instruction was supported by the
evidence. State v. Greywater (Mont. 1997), 939 P.2d 975, 977, 54 St.Rep. 16, 18
(citation omitted).
The State is correct in noting that this Court has adopted the so-called
Blockburger
test. But the statutory definition of "included offense" contained at õ 46-1-202
(8), MCA,

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (4 of 16)4/16/2007 4:12:31 PM
 96-172

is broader than the Blockburger test. That statute contains three alternative
definitions
of "included offense." Subsection (8)(a) of that statute defines "included
offense" as one
that "is established by proof of the same or less than all the facts required to
establish the
commission of the offense charged." Section 46-1-202(8)(a), MCA. As we explained
in Fisch, a proper analysis of whether an offense is an "included offense" under that
subsection would include an application of the Blockburger test. Fisch, 881 P.2d
at 629.

At issue in this case, however, is whether the assault is an included offense
under
subsection 8(c). That subsection defines "included offense" as one that 'differs
from the
offense charged only in the respect that a less serious injury or risk to the same
person,
. . . or a lesser kind of culpability suffices to establish its commission."
Section 46-1-
202(8)(c), MCA. We addressed that statutory definition for the first time in Fisch,
where
we held that under that subsection, an offense is a lesser included offense if it
differs
from the one charged only by way of a less serious injury or a less serious risk or a
lesser kind of culpability. Fisch, 881 P.2d at 628.
One commits the crime of deliberate homicide if he "purposely or knowingly
causes the death of another human being." Section 45-5-102(1)(a), MCA. One commits
assault if he "purposely or knowingly causes bodily injury to another." Section 45-
5-
201(1)(a), MCA. The only difference between the two is that a "less serious
injury. .
. suffices to establish" the crime of assault. Section 46-1-202(8)(c), MCA. This
Court
thus holds that under the express terms of subsection 8(c), assault is an included
offense
of the crime of deliberate homicide. Because this Court holds that assault is
indeed a
lesser included offense, the Court need not reach appellant's alternative argument
that the
instruction should be given because assault is a lesser "related" offense.
Although this Court holds that assault is an included offense, that does not
mean
that an instruction on this offense must be given every time a defendant is charged
with
deliberate homicide. Rather, there must be some basis from which a jury could
rationally
conclude that the defendant is guilty of the lesser, but not the greater offense.
In this
case, there was evidence supporting the theory of the defense that appellant was
guilty
only of assaulting, but not of murdering Formo.
Kenneth Mueller, M.D., the pathologist who examined Formo, testified that the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (5 of 16)4/16/2007 4:12:31 PM
 96-172

causes of death were stabbing and severe blunt force injuries to Formo's head. Formo
had 16 stab wounds. The blows to Formo's head fractured his skull and caused his
brain
to hemorrhage, resulting in subdural hematoma. The type of blows that caused this
injury were not simple punches or even the type that would normally be inflicted by a
boxer. Rather, they were the type one would expect if the victim was hit in the head
with an instrument such as a bat or if the victim's head was supported on one side
by the
ground or a wall. According to Dr. Mueller, those injuries probably would have
quickly
rendered Formo unconscious and incapable of any voluntary movements.
This medical evidence is consistent with appellant's defense that although he
punched Formo in the jaw while they were standing in the kitchen, those blows
amounted
only to assault and did not cause his death. At that time, Formo's head was not
supported by the ground or the wall. Moreover, evidence indicates that Formo
remained
conscious and walked to the living room. Thus appellant's punches did not fracture
the
skull or cause subdural hematoma. Evidence indicates that it was Cassell who dealt
the
fatal blows and multiple stab wounds while Formo lay on the living room floor.
The State argues that Formo was still alive when appellant helped Cassell
discard
the body in the dumpster. Although Dr. Mueller testified that Formo may have lived
up
to one or two hours after receiving the severe blows to the head, he also testified
that he
could have died within 15 minutes and that at least one stab wound on Formo's lower
buttocks was consistent with a post-mortem wound. The position of Formo's body in
the
dumpster was such that the stab wound could not have been inflicted after the body
was
placed in the dumpster. This evidence, is consistent with the defense's theory that
Formo
died before he was placed in the dumpster.
We conclude that there is some evidence that supports appellant's theory that
he
is guilty only of assaulting, but not murdering, Formo. A jury could rationally
find that
appellant committed assault, but not deliberate homicide. It is possible that the
jury
found appellant guilty of deliberate homicide rather than let his admitted crime go
unpunished. Appellant is thus entitled to a new jury trial with his proposed
instruction
on the offense of assault.
The judgment of the District Court is reversed, and the sentence is vacated.
The
cause is remanded for a new trial.
ISSUE TWO
Did the admission of Cassell's hearsay statements violate the Montana Rules of
Evidence?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (6 of 16)4/16/2007 4:12:31 PM
96-172

Appellant contends that the District Court erred in admitting certain portions
of
Cassell's confession. During the investigation following the murder of Formo,
Detective
Jensen had tape-recorded two interviews with Cassell in which Cassell admitted to
stabbing and beating Formo and also implicated appellant. Cassell subsequently
invoked
his Fifth Amendment Right against self-incrimination and did not testify at trial.
The
District Court allowed Jensen to read the following portions of the transcript of
Cassell's
interview to the jury:
Q: [by Jensen]Okay, Walt, why don't you tell us what happened last
night?

A: [by Cassell]Here it comes. We were all drinking. We were all
fucked up with -- we'd been drinking a lot of wine, a lot of beer.
Forrest was in the kitchen with the guy. He said he was fucking up
and I was driving Michelle to the store. I came back and the next
I know Forrest and him fucking around in the kitchen and then the
guy broke the window.

Q: Who broke the window?

A: The other guy, he broke the fucking window and then -- let me try
and get this straight. I don't know, then -- Bear went in there, hit
him a few times and then Doug went in there and hit him a few
more times so he come out in the living room and I beat on him man
and blood went everywhere. Then I went and got the knife and
stabbed him and stabbed him.

Q: Where did you stab him at?

A: I thought a kidney stab.

Q: What kind of knife did you use?

A: Butcher knife of some sort. I don't know.

Q: Where is that knife at?

A: I don't know.

Q: Then what happened?

A: Then we thought he was dead and we tried putting him in a bag,
took him outside, threw him in the fucking dumpster. Doug was
going to cut his throat and make sure he was dead.

Q: Was he still moving when you tried to put him in this bag?

A: Yeah, he was still trying to reach out of the bag and get out of the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (7 of 16)4/16/2007 4:12:31 PM
 96-172

bag. He was still alive.

Q: What did Doug say then? Did he say anything?

A: He said, "I don't care. I'll take the fucking rap."

Q: You and Doug carried him outside?

A: Yeah.

Appellant does not object to the portions of the statement wherein Cassell
admitted
beating and stabbing Formo. Indeed, it was he who sought their admission on the
grounds that they constituted statements against Cassell's penal interest and should
therefore be admitted under the hearsay exception found in Rule 804(b)(3), M.R.Evid.
He objects only to the following hearsay statements wherein Cassell implicates him:
(1) Then we thought he was dead and we tried putting him in a bag,
took him outside, threw him in the fucking dumpster. Doug was
going to cut his throat and make sure he was dead.

(2) Yeah, he was still trying to reach out of the bag and get out of the
bag. He was still alive.

(3) He [Doug Castle] said, "I don't care. I'll take the fucking rap."
Neither party disputes that those statements constitute hearsay within the
meaning
of Rule 801, M.R.Evid, and neither party disputes that the declarant Cassell was
"unavailable" within the meaning of Rule 804, M.R.Evid. Appellant argues that the
statements do not fall within any of the hearsay exceptions in Rules 803 and 804 and
are
therefore inadmissible under Rule 802, M.R.Evid. Moreover, he contends that
admitting
those statements violated his rights to confrontation guaranteed by the Sixth
Amendment
to the United States Constitution and by Article II, Section 24, Constitution of
Montana.
He maintains that the statements lack any separate indicia of reliability, because
in fact
the victim's throat was not slashed; medical testimony indicates that after
sustaining the
blows to his head, the victim was incapable of making voluntary movements; and the
victim died prior to being placed in the dumpster.
The State, on the other hand, contends that the statements are admissible under
Rule 804(b)(3), M.R.Evid., because they constitute statements against penal
interest. It
further argues those statements are admissible even without corroborating evidence,
because the last line of Rule 804(b)(3) requires corroborating circumstances only
when
the declarant's statement exculpates the accused. In this case Cassell's statements
inculpate the accused. Finally, it notes that certain parts of the statements, such
as the
statement that the body was thrown into the dumpster, are corroborated, and that the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (8 of 16)4/16/2007 4:12:31 PM
 96-172

uncorroborated portions do not prejudice appellant.
Rule 804(b)(3) provides an exception to the hearsay rule where a declarant makes
a statement which "at the time of its making . . . so far tended to subject the
declarant
to . . . criminal liability. . . that a reasonable person in the declarant's
position would not
have made the statement unless the declarant believed it to be true." Rule 804(b)
(3),
M.R.Evid. To fall within the exception embodied in that rule, the declarant's
statements
must thus be against his own penal interest. That portions of a declarant's
confession are
admissible because they are self-inculpatory, however, does not necessarily make the
collateral non-inculpatory statements either credible or admissible, particularly
where the
declarant implicates another person. In this regard, the United States Supreme
Court's
decision in Williamson v. United States (1994), 512 U.S. 594, 114 S.Ct. 2431, 129
L.Ed.2d 476, is instructive. In that case, the Supreme Court examined Fed.R.Evid.
804(b)(3), which is identical in pertinent parts to Montana's rule. The Court held
that
the exception embodied in Rule 804(b)(3) does not extend to non-self-inculpatory
statements, even if they are made within the context of a confession. As the Supreme
Court stated:
Rule 804(b)(3) is founded on the commonsense notion that reasonable
people, even reasonable people who are not especially honest, tend not to
make self-inculpatory statements unless they believe them to be true. . . .
The fact that a person is making a broadly self-inculpatory confession does
not make more credible the confession's non-self-inculpatory parts. One of
the most effective ways to lie is to mix falsehood with truth, especially truth
that seems particularly persuasive because of its self-inculpatory nature.

. . .

In our view, the most faithful reading of Rule 804(b)(3) is that it does not
allow admission of non-self-inculpatory statements, even if they are made
within a broader narrative that is generally self-inculpatory. The district
court may not just assume for purposes of Rule 804(b)(3) that a statement
is self-inculpatory because it is part of a fuller confession, and this is
especially true when the statement implicates someone else.
Williamson, 512 U.S. at 599-601.
In this case, Cassell's statements wherein he confessed to beating and stabbing
the
victim fall squarely into the exception, because they tend to subject him to criminal
liability. However, in other parts of his statement, Cassell shifts the blame to
appellant
by implying that it was appellant and not he who actually killed the victim.
Specifically,
he states Formo was still alive when they dumped the body in the dumpster and it was
appellant who volunteered to "take the . . . rap" by cutting the victim's throat and
ensuring the victim was dead. These statements are classic examples of inadmissible
hearsay. They lack any indicia of trustworthiness. That Formo's throat was not in

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (9 of 16)4/16/2007 4:12:31 PM
 96-172

fact
cut only highlights the unreliability of such statements. Moreover, appellant was
denied
the valuable right to cross-examine the only witness who provided any direct evidence
that appellant intended Formo's death.
Of the challenged statements, Cassell's statement that they tried putting the
victim's
body in a bag and then threw him in the dumpster is the only one that is self-
inculpatory.
However, that statement should be redacted to delete appellant's alleged involvement.
Because we find that the admission of these statements violated the Montana
Rules
of Evidence, we need not address whether their admission violates the Confrontation
Clause of the Sixth Amendment to the United States Constitution and Article II,
Section
24, Constitution of Montana.
Although these statements do not fall within Rule 804(b)(3)'s purview, the
District
Court held that Cassell's statements were admissible under Rule 106, M.R.Evid. The
State had contended that under the rule of completeness, if the District Court
admitted
the portion of Cassell's statement wherein he admitted beating and stabbing Formo, it
should also admit the other parts of the statement wherein he implicated appellant,
so as
not to mislead the jury into believing that Cassell had declared sole responsibility
for the
crime.
Rule 106, M.R.Evid., provides in part:
Remainder of or related acts, writings, or statements.
(a) When part of an act, declaration, conversation, writing or recorded
statement or series thereof is introduced by a party;

(1) an adverse party may require the introduction at that time of any
other part of such item or series thereof which ought in fairness to be
considered at that time; or

(2)
an adverse party may inquire into or introduce any other part of such
item of evidence or series thereof.
The completeness doctrine stems from the principle restricting the scope of
cross-
examination to matters testified to on direct examination. It broadens this
principle by
allowing an immediate introduction of the balance of portions of the same document,
correspondence or conversation, where fairness so dictates. State v. Campbell
(1978),
178 Mont. 15, 19, 582 P.2d 783, 785. The balance is admitted only where it is
relevant
and more fully explains or provides context to parts already admitted. Campbell, 582
P.2d at 785 (citing U.S. v. Littwin (6th Cir. 1964), 338 F.2d 141, 146; State v.
Collett
(1946), 118 Mont. 473, 479, 167 P.2d 584, 587).
Rule 106 does not, however, provide a separate basis for admissibility. As we

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (10 of 16)4/16/2007 4:12:31 PM
 96-172

stated in Campbell, this rule is separate and distinct from the hearsay rule.
Campbell,
582 P.2d at 785. In that case we held that the defendant's line of inquiry to an
informant
did not open the door to all hearsay communications under this doctrine. Campbell,
582
P.2d at 785. Rule 106 does not make admissible statements that would otherwise be
inadmissible. We therefore hold that the District Court erred in admitting the
enumerated
hearsay statements. Because we have already held that this case should be reversed,
we
need not reach the issue of whether the admission of those statements constituted
reversible error.
Reversed and remanded for further proceedings consistent with this opinion.

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART

Justice Karla M. Gray, concurring in part and dissenting in part.

I concur in the Court's opinion on issue two, regarding the inadmissibility of
certain of Cassell's statements. I dissent from that opinion, both procedurally and
substantively, on issue one, whether the District Court erred in refusing appellant's
proposed instruction that assault is a lesser included offense of deliberate
homicide.
Procedurally, it is my view that appellant waived the õ 46-1-202(8)(c), MCA,
argument on which the Court resolves the first issue by not raising it in the
District
Court. Appellant conceded in this Court, as he did in the District Court, that
simple
assault is not an "included offense" of deliberate homicide under the Blockburger
test we
use in applying õ 46-1-202(8)(a), MCA. Thus, the Court quite correctly does not
address the Blockburger test. The Court is incorrect, however, in stating that the
issue
here "is whether the assault is an included offense under subsection (8)(c) [of õ 46-
1-202,
MCA]." In the District Court, and in his opening brief on appeal to this Court,
appellant
relied on the "related offense"--or "cognate offense"--theory for his argument that
he was
entitled to a lesser included offense instruction in this case, an argument similar
to the
one we rejected in State v. Smith (1996), 276 Mont. 434, 916 P.2d 773. The record

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (11 of 16)4/16/2007 4:12:31 PM
 96-172

reflects, and appellant conceded during oral argument, that he did not raise õ 46-1-
202(8)(c), MCA, in the District Court and raised it here for the first time only in
his
reply brief. On this procedural background, we are precluded from addressing the
subsection (8)(c) argument for two reasons. The first is that a party may not
change the
theory on appeal from that advanced in the district court. State v. Fisch (1994),
266
Mont. 520, 524, 881 P.2d 626, 629 (citation omitted). The second is that a reply
brief
"must be confined to new matter raised in the brief of the respondent." Rule 23(c),
M.R.App.P. For both of these reasons, it is my view that we must decline to address
appellant's argument under õ 46-1-202(8)(c), MCA.
Indeed, Fisch is controlling on this procedural waiver. There, the defendant
was
charged with aggravated assault and offered a proposed instruction that negligent
endangerment is a lesser included offense of aggravated assault under õ 46-1-202(8)
(c),
MCA. Fisch, 881 P.2d at 627-28. The district court refused the instruction and we
held
that it was correct in doing so. Fisch, 881 P.2d at 629. The defendant also argued
that
negligent endangerment is a lesser included offense of aggravated assault under õ 46-
1-
202(8)(a), MCA. We observed that he had not offered the instruction pursuant to õ
46-1-
202(8)(a), MCA, in the district court and cited to State v. Henderson (1994), 265
Mont.
454, 458, 877 P.2d 1013, 1016, for the long-established axiom that a party may not
change the theory on appeal from that advanced in the district court. On that
basis, we
declined to address the argument presented under õ 46-1-202(8)(a), MCA. Fisch, 881
P.2d at 629.
The present case requires the same response as Fisch. Appellant having failed
to
advance his õ 46-1-202(8)(c), MCA, argument in the District Court, we must decline to
address it here. To reverse a trial court on a basis never presented to it for
resolution--as
the Court does here with its õ 46-1-202(8)(c), MCA, analysis--is both contrary to
the law
and unfair to the District Court. I cannot agree.
Substantively, and even if õ 46-1-202(8)(c), MCA, were at issue here, I also
disagree with the Court's conclusion that a simple assault is merely a "less serious
injury"
than a deliberate homicide. It is clear that "bodily injury" as defined in õ 45-2-
101(5),
MCA, is a "less serious injury" than "serious bodily injury" as defined in õ 45-2-101
(64),
MCA. Thus, the "less serious injury" concept in õ 46-1-202(8)(c), MCA, is clearly
and
easily applied in the context of various assault offenses under Part 2, Assault, of
Chapter

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (12 of 16)4/16/2007 4:12:31 PM
 96-172

5, Offenses Against the Person, of Title 45, Crimes.
It is my view, however, that the "bodily injury" required for a simple assault
is
most assuredly not a "less serious injury" than deliberate homicide. While homicide
may
be perceived by some as the "ultimate injury," death is not an injury of the most
serious
type but, rather, death is death and it is in a category of its own. The very
structure and
organization of the Offenses Against the Person contained in the MCA support this
view.
The offense of deliberate homicide is not set forth as the first and foremost
offense in
Part 2 of Chapter 5 of Title 45, which delineates the various types of assaults.
Rather,
the offense of deliberate homicide is the first offense defined in Part 1 of Chapter
5,
Offenses Against the Person, of Title 45, Crimes. Indeed, Part 1 is entitled
"Homicide,"
and the various homicide offenses are therein grouped together, to the exclusion of
other
types of offenses. Each of those defined offenses addresses the "death of another
human
being;" none includes the word "injury." See õõ 45-5-102 through 45-5-104, MCA.
Nothing in that Part suggests or indicates that a "death" properly can be likened to
an
assault with the only difference being the degree of "injury." Indeed, the
compartmentalization of the homicide offenses away from the assault offenses
reflects the
legislature's perception and intent that a homicide is not merely a more serious
injury
than a simple assault.
I would affirm the District Court's refusal of appellant's proposed lesser
included
offense instruction on assault.

/S/ KARLA M. GRAY

Justice James C. Nelson joins in the foregoing concurring and dissenting opinion of
Justice Karla M. Gray.

/S/ JAMES C. NELSON

Chief Justice J. A. Turnage, dissenting:
I join in the foregoing concurring and dissenting opinion of Justice Karla M.
Gray.
In addition to the well-reasoned opinion of Justice Gray in dissenting to Issue
One,
which is clearly supported by the statutes and precedent cited therein, I write to

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (13 of 16)4/16/2007 4:12:31 PM
 96-172

express
my further concern about the majority discussion of this issue.
The standard of review for jury instructions is whether the instructions, as a
whole,
fully and fairly instruct the jury on the law applicable to the case. State v.
Leyba (1996),
276 Mont. 45, 51, 915 P.2d 794, 797. The district court is given broad discretion in
instructing the jury. State v. Long (1995), 274 Mont. 228, 234, 907 P.2d 945, 948.
The majority opinion, when reduced to its fundamental holding, states that in
this
trial for deliberate homicide under õ 45-5-102(1), MCA ("[a] person commits the
offense
of deliberate homicide if: (a) the person purposely or knowingly causes the death of
another human being . . ."), punishable by not more than 100 years imprisonment in
the
state prison, the jury must be instructed that if any evidence exists in the record
on which
it may base a finding of the lesser included offense of simple assault, a misdemeanor
under õ 45-5-201(1)(a) or (c), MCA ("[a] person commits the offense of assault if he:
(a) purposely or knowingly causes bodily injury to another; . . . (c) purposely or
knowingly makes physical contact of an insulting or provoking nature with any
individual
. . ."), punishable by a fine of $500 or six months in the county jail, the jury may
then
proceed to ignore the evidence of the vicious killing of victim Formo and find Castle
guilty of a misdemeanor.
The facts of this case leave no room for instructing the jury that appellant
Castle's
participation in taking the life of John Formo warrants consideration of his conduct
as
only a misdemeanor assault.
Castle participated in the vicious beating of Formo. Formo suffered multiple
blunt
force injuries all over his head with bruising and swelling of his face, lips, nose,
cheeks,
forehead, ears, below the jaw, around the eyes, bruises on his neck from being choked
with hands or an instrument, skull fractures in several places due to severe blows
to the
head and a hemorrhage around his brain causing his death.
After Formo had suffered these injuries, Castle and his partner in this crime,
Walter Cassell, waited for approximately thirty minutes for their victim to die
before they
carried him to a garbage dumpster and placed him inside. The pathologist, Dr.
Mueller,
testified that Formo survived a minimum of one to two hours after being beaten. The
jury had sufficient credible evidence to conclude that Formo was still alive when
Castle
and Cassell hauled him outside and placed him in the dumpster. In doing so, they
assured Formo's death, whereas he may have survived if he had not been subjected to
such treatment and had instead received medical care.
Simple assault? Ridiculous. No jury could stretch credulity that far.
An instruction on purse snatching, under these facts, would make as much sense

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (14 of 16)4/16/2007 4:12:31 PM
 96-172

as an instruction on simple assault.
I would hold that the District Court did not abuse its discretion in refusing to
instruct the jury on misdemeanor assault, and that the instructions given fully and
fairly
instructed the jury on the law applicable to the case.

/S/ J. A. TURNAGE

Justice Terry N. Trieweiler concurring.
I concur with the result of the majority decision and with the majority's
conclusion
that assault is a lesser included offense of deliberate homicide pursuant to õ 46-1-
202(8)(c), MCA.
However, I do not agree with all that is said in the majority opinion.
Specifically,
I would not apply analysis from Blockburger v. United States (1932), 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306, to determine whether an offense is an "included offense"
pursuant to õ 46-1-202(8)(a), MCA. The language of Montana's "included offense"
statute speaks for itself and does not require the superimposition of federal case
law for
interpretation. Furthermore, if federal case law was necessary, Blockburger was not
the
appropriate case on which to rely. Blockburger may include language which is
relevant
to double jeopardy analysis, but it is not applicable to an analysis of "included
offenses."

I also disagree with Justice Gray's statement in her dissent that the issue of a
"lesser included offense" instruction was not properly submitted to the District
Court or
raised in this Court. The defendant submitted a proposed instruction defining
assault on
the basis that it was a lesser included offense of deliberate homicide. To suggest
that in
order to make a proper record he need specify to the District Court the particular
subparagraph of the lesser included offense statute pursuant to which the
instruction must
be given would sacrifice due process to a perceived technicality. I disagree with
that
approach. Furthermore, subsection (8)(c) was properly addressed in the appellant's
reply
brief pursuant to Rule 23(c), M.R.App.P. Three pages of the respondent's brief were
dedicated to a discussion of whether assault is a "lesser included" offense pursuant
to the
Blockburger test. An appropriate response by the appellant included pointing out
that it
was not necessary to satisfy the Blockburger test which this Court has, in the past,
applied to subsection (8)(a) because, in fact, Montana's "lesser included" statute is
broader than the Blockburger test.
Finally, it is appropriate to respond to portions of the dissent filed by Chief

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (15 of 16)4/16/2007 4:12:31 PM
 96-172

Justice
Turnage which are totally unsupported by the record. When he states that Castle
participated in a "vicious beating of Formo" and infers that that beating resulted
in the
injuries which caused Formo's death, those statements are simply incorrect. The only
evidence regarding Castle's participation in the events which preceded Formo's death
establishes that Castle, a person with one arm, struck Formo three to four times
with his
fist and walked away to go to the bathroom. When he left Formo, Formo was still
standing in the kitchen with no serious injury. When Castle returned from the
bathroom,
Formo had apparently been seriously beaten by others and was lying on the floor of
the
living room next to the couch. The blunt force injuries, the bruises on Formo's
neck,
the skull fractures, the hemorrhage around Formo's brain, and the stab wounds which
all
contributed to Formo's death were admittedly inflicted by Walter Cassell, not the
defendant. The State's own pathologist testified that the blows struck by Castle
would
not have caused or contributed to Formo's death. There was no evidence that anything
done by Castle caused or contributed to Formo's death.
Furthermore, this dissent's characterization of the evidence regarding the
issue of
whether Formo was dead or alive when taken to the dumpster is incomplete and
misleading. A complete and accurate description of Dr. Mueller's testimony in that
regard is set forth in the majority opinion.
After reciting the aforementioned injuries and inappropriately attributing them
to
the defendant, the Chief Justice's dissent states: "Simple assault? Ridiculous.
No jury
could stretch credulity that far."
If Walter Cassell was being tried based on the evidence presented in this case,
I
would agree. However, Douglas Castle was being tried and the facts relied on in this
dissent are either inapplicable to him or disputed.
Flippant and inflammatory remarks, like those referring to "purse snatching,"
might make interesting reading to those who are unfamiliar with the facts in this
case;
however, they are misleading and have no place in an honest discussion of the serious
issues presented.
For these reasons, I specially concur with the majority opinion.

/S/ TERRY N. TRIEWEILER

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-172%20Opinion.htm (16 of 16)4/16/2007 4:12:31 PM