State v. Keith

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No. 99-033

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 23

298 Mont. 165

995 P. 2d 966

STATE OF MONTANA,

Plaintiff and Respondent,

v.

VICKIE KEITH,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and for the County of Ravalli,

The Honorable Jeffrey Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lisa B. Kauffman, Missoula, Montana

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For Respondent:

Joseph P. Mazurek, Montana Attorney General, Micheal S. Wellenstein, Assistant
Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, Michael
Reardon, Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: September 30, 1999

Decided: January 28, 2000

Filed:

__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1.Vickie Keith (Keith) was convicted by a jury in the District Court for the Twenty-first
Judicial District, Ravalli County, of criminal endangerment, a felony, and sentenced to 10
years in the Women's State Prison in Billings. She received an additional 10 year sentence
for the use of a weapon in connection with that offense. Keith appeals her conviction and
sentence. We affirm.

¶2.We address the following issues on appeal:

¶3.. Whether an exception to the imposition of the mandatory minimum sentence under
the weapon enhancement statute is applicable when the District Court imposes a term
longer than the mandatory minimum.

¶4. Whether application of the weapon enhancement statute to a conviction for criminal
endangerment subjected Keith to multiple punishments in violation of the double jeopardy
clause.

Factual and Procedural Background

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¶5.On the evening of May 7, 1998, Keith, her boyfriend Dean Yates (Yates), and a mutual
friend, Richard Wolde (Wolde), went out to a local tavern to drink and dance. They
returned to Keith's apartment around midnight. Keith lay down on a mattress on the living
room floor and took a short nap. According to Yates, Keith was very inebriated. When
Keith awoke from her nap, she was angry and hostile towards Yates and started saying
"crazy sounding things." Wolde stated that Keith was acting "very illogical and irrational."
Keith told Yates that she wanted him out of her life and she ordered him to leave. Yates
agreed and began gathering his things while Keith went into her bedroom and locked the
door.

¶6.As Yates and Wolde were leaving the apartment, they heard a gun shot from Keith's
bedroom. Yates was attempting to break the lock on the door when they heard a second
shot. When they entered the room, they found Keith sitting in a corner holding a .357
caliber handgun. Before they could reach her, Keith fired the gun a third time in the
direction of the window. Yates grabbed the gun in an attempt to disarm Keith, but before
he could get it away from her, a fourth shot was fired. This shot went through a desk and
into a wall that separated Keith's apartment from the apartment next door.

¶7.In the next apartment, Keith's neighbor, Mary Snyder, awoke to the sounds of gun fire
and muffled screams. Snyder called 911 and, while talking to the dispatcher, she heard the
fourth shot hit her bedroom wall. When the officers arrived at the scene, they arrested
Keith who proceeded to scream obscenities at the officers.

¶8.On May 19, 1998, the State charged Keith by Information with criminal endangerment,
a felony, in violation of § 45-5-207, MCA. The Information also contained notice that
Keith could receive an additional sentence for the use of a weapon pursuant to § 46-18-
221, MCA.

¶9.On August 27, 1998, Keith filed a motion to add her psychiatrist, Dr. Noel Hoell, as a
witness. Keith had been undergoing treatment with Dr. Hoell since 1990. The State
objected to Keith's motion arguing that Keith failed to give notice that she would be
relying on a defense of mental disease or defect and that Keith failed to disclose Dr.
Hoell's report of his examination of her.

¶10.Keith subsequently filed a motion to retain Dr. Hoell as a medical expert. In an
affidavit in support of the motion, Keith's counsel stated that the combination of stress, a
change in Keith's medication, and the consumption of alcohol may have precluded Keith

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from knowingly committing the crime. Counsel stated that while he did not believe that
Keith had a mental disease or defect, "her mental thoughts and processes were impaired."

The District Court granted Keith's motion on September 9, 1998.

¶11.On September 11, 1998, the State filed a motion in limine regarding Dr. Hoell's
testimony. The State argued that Dr. Hoell should be limited to testifying about the kinds
of drugs that he prescribed for Keith; their known physiological effects when taken in
conjunction with alcoholic beverages; any instructions Dr. Hoell gave Keith concerning
the dosages of these drugs; and any warnings Dr. Hoell gave Keith concerning mixing
these drugs with alcohol. The State maintained that since Keith failed to follow the
statutory procedures for raising a mental disease or defect claim, defense counsel should
be precluded from presenting evidence in that regard. The District Court granted the
State's motion.

¶12.Trial commenced on September 21, 1998. At trial, Dr. Hoell testified that Keith had
been under a great deal of stress the past year because her daughter had been molested and
because of the molestation trial that followed. He explained that Keith was suffering from
anxiety and depression and "general emotional turmoil" during this time. Dr. Hoell also
testified that Keith was suffering considerable pain and discomfort because, a few months
before the shooting incident, Keith had an altercation with someone in which her neck and
shoulder were injured.

¶13.Dr. Hoell further testified that he had prescribed three medications for Keith; Prozac,
Doxepin, and Valium. He stated that on the day of the shooting, Keith had contacted him
regarding her Valium prescription. She told him that the generic Valium she was taking
was not as effective as the brand name and she requested a different medication. Dr. Hoell
gave Keith a new prescription. According to Wolde, although he was unsure whether
Keith took any of this new medication, he was with Keith when she filled the prescription
later that day.

¶14.As to the physiological effects of these drugs when taken in conjunction with
alcoholic beverages, Dr. Hoell testified that while Prozac does not have any specific
interaction with alcohol, alcohol mixed with Doxepin could cause sleepiness and
confusion, and the combination of Valium and alcohol could cause sedation, confusion
and agitation. Dr. Hoell also testified that he prescribed the Valium for Keith with the
understanding that she would refrain from using alcohol.

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¶15.On September 22, 1998, the jury found Keith guilty of criminal endangerment. The
District Court ordered a presentence investigation report and subsequently scheduled a
sentencing hearing for November 4, 1998.

¶16.At the beginning of the sentencing hearing, the District Court indicated that it would
be willing to entertain the parties' positions on the mandatory minimum sentence under the
weapon enhancement statute. To that end, defense counsel argued that the mandatory
minimum sentence did not apply here because Keith was under a great deal of stress and
she had ingested drugs and alcohol prior to the offense. The court responded that in order
to waive the mandatory minimum sentence, there would have to be some evidence that
Keith's mental capacity was significantly impaired. The court explained that under § 46-18-
222(2), MCA, it could not give Keith the benefit of any type of voluntarily induced
intoxicated or drugged state.

¶17.Defense counsel then requested a continuance to bring Dr. Hoell back to testify on the
issue of mental impairment. The court refused stating that there was "no reason to waste
public money to have an expert witness come back and say what he's already said." The
court concluded that there was no evidence of mental impairment in this case sufficient to
require waiving the mandatory minimum sentence.

¶18.The District Court sentenced Keith to 10 years in the Women's State Prison in Billings
for the offense of criminal endangerment plus an additional 10 years for the use of a
weapon in connection with that offense. The court subsequently suspended 15 years of
Keith's sentence. Keith appeals her conviction and sentence.

Issue 1.

¶19.Whether an exception to the imposition of the mandatory minimum sentence under
the weapon enhancement statute is applicable when the District Court imposes a term
longer than the mandatory minimum.

¶20."This Court reviews a criminal sentence only for legality (i.e., whether the sentence is
within the parameters provided by the statute)." State v. Montoya, 1999 MT 180, ¶ 15, 983
P.2d 937, ¶ 15, 56 St.Rep. 706, ¶ 15.

¶21.Section 46-18-221, MCA, the weapon enhancement statute, provides that a person
who uses a weapon in the commission of an offense "shall, in addition to the punishment

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provided for the commission of such offense, be sentenced to a term of imprisonment in
the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-
222."

Section 46-18-222, MCA, provides, in pertinent part,

Exceptions to mandatory minimum sentences and restrictions on deferred imposition
and suspended execution of sentence. Mandatory minimum sentences prescribed by the
laws of this state . . . do not apply if:

(2) the offender's mental capacity, at the time of the commission of the offense for which
the offender is to be sentenced, was significantly impaired, although not so impaired as to
constitute a defense to the prosecution. However, a voluntarily induced intoxicated or
drugged condition may not be considered an impairment for the purposes of this
subsection.

¶22.Keith contends that, at the time of the crime, her mental capacity was impaired due to
physical pain, mental anguish, high levels of stress, and the taking of prescription drugs
and alcohol. She argues that although her mental state was not so diminished as to support
a claim for mental disease or defect under § 46-14-312, MCA, her mental condition was
"significantly impaired," thus she falls within the exceptions to mandatory minimum
sentences as provided for in § 46-18-222(2), MCA.

¶23.While § 46-18-222(2), MCA, does permit the sentencing court to reject the mandatory
minimum sentence if it determines that the defendant's mental capacity was significantly
impaired during the commission of the offense, this Court has repeatedly held that this
statute does not apply in cases where the maximum sentence or any sentence greater than
the mandatory minimum is imposed. State v. Zabawa (1996), 279 Mont. 307, 317, 928
P.2d 151, 157 (citing State v. Graveley (1996), 275 Mont. 519, 524-25, 915 P.2d 184, 188,
overruled on other grounds by State v. Lane (1998), 288 Mont. 286, 957 P.2d 9; State v.
Nichols (1986), 222 Mont. 71, 82, 720 P.2d 1157, 1164). See also State v. DeSalvo (1995),
273 Mont. 343, 348, 903 P.2d 202, 205; State v. Arlington (1994), 265 Mont. 127, 166-67,
875 P.2d 307, 331; State v. Stroud (1984), 210 Mont. 58, 78, 683 P.2d 459, 469-70.

¶24.As the State points out, Keith's argument would only have merit if the District Court
had intended to sentence Keith to less than the two-year mandatory minimum sentence
and was prevented from doing so because it found that the exceptions under § 46-18-222,

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MCA, did not apply. In this case, there is no indication that the District Court ever
intended to sentence Keith to either the two-year mandatory minimum or to a period of
time less than the two-year mandatory minimum, therefore, the exceptions are not
applicable in this case.

¶25.Keith also argues that the District Court erred in failing to conduct a hearing prior to
the imposition of sentence to determine the applicability of the mental impairment
exception. Citing § 46-18-223, MCA, Keith argues that when the application of an
exception provided for in § 46-18-222, MCA, is an issue, the court shall grant the
defendant a hearing prior to the imposition of sentence to determine the applicability of
the exception.

¶26.As § 46-18-223, MCA, states, only when "the application of an exception provided for
in 46-18-222 is an issue," must the court grant the defendant a hearing. In this case, since
the District Court sentenced Keith to the maximum term provided for in the weapon
enhancement statute, the exceptions to the mandatory minimum sentence were not an
issue, thus, no hearing was required.

¶27.Nevertheless, the District Court did hold a hearing on its own motion. Prior to the
sentencing hearing itself, the court declared that it would entertain argument on exceptions
to the mandatory minimum sentence. After listening to the State's position on this matter,
the court heard Keith's claim that her mental capacity was impaired at the time of the
offense. In support of this argument, Keith pointed to portions of Dr. Hoell's trial
testimony regarding the stress Keith was under at the time of the crime and that Keith had
ingested drugs and alcohol prior to the offense. The court also questioned Keith regarding
her claim.

¶28.Although we have already stated that a hearing under the circumstances presented in
this case was unnecessary, we conclude that, contrary to Keith's contentions, the District
Court did hold a hearing sufficient to comply with § 46-18-223, MCA.

¶29.Keith also argues that the District Court erred in denying her request for a continuance
of the sentencing hearing to allow Dr. Hoell to appear to testify regarding her mental
capacity. The granting of a motion for continuance of a sentencing hearing is left to the
sound discretion of the district court and this Court will not overturn the district court's
decision unless an abuse of discretion prejudicing the movant is demonstrated. State v.
McPherson (1989), 236 Mont. 484, 487, 771 P.2d 120, 122, overruled on other grounds

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by State v. Staat (1991), 248 Mont. 291, 811 P.2d 1261.

¶30.Keith maintains that she wanted Dr. Hoell to explain how stress, combined with drugs
and alcohol, could have impaired her mental capacities. However, as expressly stated in
§ 46-18-222, MCA, "a voluntarily induced intoxicated or drugged condition may not be
considered an impairment" for the purposes of applying the exceptions under this statute.
Therefore, the District Court would not have been able to consider Dr. Hoell's opinion
regarding the impairment of Keith's mental capacity because her impairment was based in
part on the alcohol and drugs she voluntarily consumed. Moreover, as the District Court
noted, being under stress is not the same as having your mental capacity significantly
impaired.

¶31.Accordingly, we hold that the District Court did not err in failing to apply the
exceptions to mandatory minimum sentences, as set forth in § 46-18-222, MCA, in this
case.

Issue 2.

¶32.Whether application of the weapon enhancement statute to a conviction for criminal
endangerment subjected Keith to multiple punishments in violation of the double jeopardy
clause.

¶33.Keith argues that the application of the weapon enhancement statute to her felony
conviction for criminal endangerment violated her right to be free from multiple
punishments for the same offense pursuant to this Court's recent holding in State v.
Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312. Keith contends that since her
conviction for criminal endangerment was based on her conduct of firing a gun, she
should not have been given an additional sentence for the use of that gun, because that
would require punishing her twice for the same offense. Keith's reliance on Guillaume is
misplaced.

¶34.Guillaume was convicted of felony assault in violation of § 45-5-202(2)(b), MCA
(1995), which provided that a person commits the offense of felony assault if the person
purposely or knowingly causes a "reasonable apprehension of serious bodily injury in
another by use of a weapon." Guillaume had struck another individual with a hammer. The
District Court sentenced Guillaume to 10 years in prison for the felony assault and an
additional 5 years for the use of a weapon pursuant to § 46-18-221, MCA. Guillaume, ¶¶ 3-

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4.

¶35.On appeal, Guillaume argued that the application of the weapon enhancement statute
to the underlying crime of felony assault violated the double jeopardy clause of the
Montana Constitution because, had he not used a weapon during the assault, he would
only have been charged with misdemeanor assault under § 45-5-201(1)(d), MCA (1995).
He argued that the only factor raising his charge from misdemeanor assault to felony
assault was his use of a weapon. Therefore, he argued that the felony assault statute
provides by its own terms for enhanced punishment for use of a weapon, and that
application of the weapon enhancement statute to his conviction for felony assault
effectively punished him twice for use of a weapon in violation of the double jeopardy
clause. Guillaume, ¶ 9.

¶36.This Court agreed with Guillaume and held that the application of the weapon
enhancement statute to felony convictions where the underlying offense requires proof of
use of a weapon violates the double jeopardy provision of Article II, Section 25 of the
Montana Constitution. Guillaume, ¶ 16. We further explained:

The only factor raising Guillaume's charge from misdemeanor assault to felony assault
was his use of a weapon. We interpret this distinction between the two offenses, and the
different penalties imposed by each offense, as the legislature's way of punishing a
criminal defendant for use of a weapon in committing an assault. Thus, when the weapon
enhancement statute was applied to Guillaume's felony assault conviction, Guillaume was
subjected to double punishment for use of a weapon: once when the charge was elevated
from misdemeanor assault to felony assault, and again when the weapon enhancement
statute was applied. We agree with Guillaume that this form of double punishment is
exactly what double jeopardy was intended to prohibit.

Guillaume, ¶ 18.

¶37.In the case before us on appeal, Keith was convicted of criminal endangerment
pursuant to § 45-5-207(1), MCA. This statute provides: "A person who knowingly
engages in conduct that creates a substantial risk of death or serious bodily injury to
another commits the offense of criminal endangerment." Unlike the felony assault statute
in Guillaume, the statute defining criminal endangerment does not require proof of the use
of a weapon. Nor did the use of a weapon raise Keith's crime from a misdemeanor to a
felony as in Guillaume.

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¶38.Nevertheless, Keith argues that if she had not fired the gun she would not have been
convicted of and received a 10-year sentence for the offense of criminal endangerment.
She asserts that the additional 10-year sentence she received under the weapon
enhancement statute is a double jeopardy violation because she has been punished twice
for the use of a weapon as in Guillaume. As the State points out, if we were to accept
Keith's argument, there would be a double jeopardy violation every time a court applied
the weapon enhancement statute to a felony offense.

¶39.Keith misses the point of the double jeopardy analysis under Guillaume. That analysis
is based on the statutory definition of the underlying offense, i.e., whether one of the
elements of the offense requires proof of the use of a weapon. Criminal endangerment
does not. The fact that Keith used a weapon when she committed that offense and was
thus sentenced to an additional term under the weapon enhancement statute did not result
in multiple punishment for the same offense because the offense of criminal
endangerment, by its own terms, does not specifically increase a defendant's punishment
for the use of a weapon. Hence, application of the weapon enhancement statute to the
crime of criminal endangerment is not a double jeopardy violation.

¶40.Accordingly, we hold that the application of the weapon enhancement statute to
Keith's conviction for criminal endangerment did not subject Keith to multiple
punishments in violation of the double jeopardy provision of Article II, Section 25 of the
Montana Constitution.

¶41.Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ JIM REGNIER

Justice William E. Hunt, Sr., dissenting.

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¶42. I dissent from the majority opinion. While I agree with the application of the weapon
enhancement statute under certain circumstances, I believe its application in this instance
is misplaced. The constitutional prohibition against double jeopardy is found in the Fifth
Amendment and made applicable to the states through the Fourteenth Amendment. Article
II, Section 25, of the Montana Constitution, provides the same protection. The provision
against double jeopardy protects defendants from both multiple punishments imposed at a
single prosecution for the same offense, as well as for multiple prosecutions for offenses
arising out of the same transaction. See State v. Guillaume, 1999 MT 29, ¶ 8, 293 Mont.
224, ¶ 8, 975 P.2d 312, ¶ 8; State v. Wells (1983) 202 Mont. 337, 350, 658 P.2d 381, 388
(emphasis added).

¶43.While discouraging the use of a weapon in the commission of a crime is a valid goal,
when viewing the statute's application here I cannot help but disagree with the result.
From a common sense point of view, Keith has been sentenced to ten years for firing the
gun, and then sentenced to ten years for firing the gun; one offense has resulted in two
punishments. If Guillaume had not used a weapon, he could still have been charged with
misdemeanor assault. If Keith had not fired the .357, there would be no charge at all.

¶44.I would hold that the application of the weapon enhancement statute to Keith's
conviction for criminal endangerment did subject Keith to multiple punishments in
violation of the double jeopardy provision of the Montana Constitution.

/S/ WILLIAM E. HUNT, SR.

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