State v. Enfinger

No. 83-561

I N THE SUPREME COURT O THE STATE O MONTANA
F F

1986

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-vs-
R N L R.
O AD ENFINGER,

Defendant and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e Twentieth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Lake,
The Honorable , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

Keith C. Rennie, P o l s o n , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
James M. S c h e i e r , A s s t . A t t y . G e n e r a l , Helena
John F r e d e r i c k , County A t t o r n e y , P o l s o n , Montana

S u b m i t t e d on B r i e f s : June 20, 1986

Decided: August 5 , 1 9 8 6

Filed: AUG 5 - 1986

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Ronald Enfinger appeals a Lake County jury verdict
convicting him of mitigated deliberate homicide. He also
appeals the Lake County District Court's action in
designating him as a dangerous offender. The two issues on
appeal are: (1) whether the District Court erred in
instructing the jury on self-defense, and (2) whether the
District Court improperly designated appellant as a dangerous
offender. We affirm the conviction and the sentence imposed
on appellant.
In the early morning hours of March 23, 1983, the
appellant stabbed his friend Glenn Howard to death in Polson,
Montana. The appellant admitted that he stabbed the victim
but asserted that he did so in self-defense. Appellant
testified that he and the victim got into a fight and while
they were fighting, the victim repeatedly attempted to grab a
large knife from a knife rack to use on appellant.
Appellant's testimony showed that he voluntarily engaged in
the fight with the victim. Appellant stated he believed the
victim would attack him with the knife. Appellant seized the
knife and struck out at the victim, killing him. Appellant
was arrested and charged with deliberate homicide. Appellant
filed a notice of intent to rely upon the defense of
justifiable use of force. The Lake County District Court
held appellant's trial in July of 1983. On July 22, 1983 the
jury acquitted appellant of deliberate homicide but convicted
him of mitigated deliberate homicide.
On August 24, 1983 the District Court imposed the
following sentences upon appellant: thirty years in prison
for mitigated deliberate homicide, ten years in prison with
five years suspended for committing the offense with a
dangerous weapon, and forty years in prison with twenty-five
years suspended as a persistent felony offender. The court
ordered that the three sentences were to be served
consecutively. The court then remanded appellant to the
custody of the sheriff for delivery to state prison
officials.
Later that same day the District Court brought
appellant back into court for a further proceeding. The
district judge stated that earlier he had failed to state his
reasons for imposing the sentences upon appellant and that it
was necessary for him to do so. Defense counsel objected to
any further proceedings. The district judge gave his reasons
for sentencing appellant as he did. At that point, the
deputy county attorney stated that he was not sure whether
the court had specifically found that appellant was a
dangerous offender. The judge stated, "I believe I did. If
I didn't, I do so now. That was the reason for that one
sentence." Defense counsel again objected to the entire
proceeding and appellant later filed this appeal.
The first issue is whether the District Court erred in
its instructions to the jury on justifiable use of force,
more commonly known as self-defense. The District Court gave
the following instructions pertaining to the charges and to
the justifiable use of force.

INSTRUCTION NO.
To sustain the charge of deliberate homicide,
the State must prove beyond a reasonable
doubt the following propositions:
First, that Ronald Enfinger caused the death
of Glenn Roy Howard with the knowledge that
he was causing said death, or with the
purpose of causing said death;
Second, that the use of force by Ronald
Enfinger was not justified.
If you find from your consideration of all
the evidence that either of these
propositions has not been proved beyond a
reasonable doubt, then you should find Ronald
Enfinger not guilty.
If you find from your consideration of all
the evidence that both of these - -
propositions
has [sic] been proved beyond. a reasonable
doubt, then you should find Ronald Enfinger
guilty.
INSTRUCTION NO. 13
To sustain the charge of mitigated deliberate
homicide, the State must prove the following
propositions:
First, that Ronald Enfinger performed the
acts that caused the death of Glenn Roy
Howard with the knowledge that he was causing
it, or with the purpose of causing said
death; and
Second, that Ronald Enfinger performed those
acts under the influence of extreme mental or
emotional stress for which there is a
reasonable explanation or excuse.
If you find from your consideration of all
the evidence that any of these propositions
has not been proved beyond a reasonable
doubt, then you should find the defendant not
guilty.
If you find from your consideration of all
the evidence that both these propositions
have been proved beyond a reasonable doubt,
then you should find the defendant guilty.
INSTRUCTION NO. 17
A person is justified in the use of force
against another when and to the extent that
he reasonably believes that such conduct is
necessary to defend himself against such
other's imminent use of unlawful force. He
is justified in the use of force likely to
cause death or serious bodily harm only if he
reasonably believes that such force is
necessary to prevent imminent death or
serious bodily harm to himself.
INSTRUCTION NO. 18
In order to justify the use of force likely
to cause death or serious bodily harm (often
called deadly force) , it must appear to the
Defendant that the danger was so urgent that,
in order to save his own life, or to save
himself from serious bodily harm, the use of
such deadly force was absolutely necessary.
And it must further appear that the deceased
was the assailant. A bare fear of the
commission of the offense, to prevent which
the Defendant used a deadly weapon, is not
sufficient to justify it; but the
circumstances must be sufficient to excite
 the fears of a reasonable man, and the
Defendant must have acted under the influence
of such fea.rs alone. It is not necessary,
however, to justify the use of a deadly
weapon that the danger be actual. It is
enough to be an apparent danger; such an
appearance as would induce a reasonable
person to believe he was in danger of serious
bodily harm. Upon such appearance a
party may - - safety, - - - - be
act with nor will he
held accountable though it would afterward
appear that the indications upon which he
acted were wholly fallacious, and that he was
in no actual peril. The rule in such case is
this :
"What would a reasonable person--a person of
ordinary caution, judgment and observation--
in the position of the Defendant, seeing what
he saw, knowing what he knew, suppose from
this situation and these surroundings? If
such reasonable person so placed would have
been justified in believing himself in
imminent danger, then the ~efendantwould be
'ustified in believing himself in such peril
2nd actingypon such appearances." (Emphasis
added. )
INSTRUCTION NO. 20
If the defendant voluntarily engaged in a
fight with Glenn Howard or in some other
manner, by his words or actions provoked the
use of force against himself which apparently
did not involve the use or [sic] deadly
force, but then unexpectedly he is threatened
with deadly force, - - has a gualified right
he -
to protect himself
- using deadly force.
First, however, the defendant must have used
any method which is reasonably available to
him to avoid the use of deadly force
including a "retreat to the wall." (Emphasis
added. )
Appellant complains that the District Court erred in
failing to instruct the jury that if they found appellant's
use of force justified, they should acquit appellant of
mitigated deliberate homicide and negligent homicide. The
court did instruct the jury that they must acquit appellant
of deliberate homicide if they found his use of force was
justified. The effect of this, alleges appellant, is that if
the jury found the use of force was justified, they would
acquit him of deliberate homicide but convict him of
mitigated deliberate homicide or negligent homicide.
Appellant, citing United States Ex Rel. Collins v. Blodgett
(Mont. D.C. 1981), 513 F.Supp 1056, charges that instructions
on self-defense are insufficient where those instructions
define when the use of force is justified but do not state
that a finding of justifiable force requires acquittal.
The standard of review is that, "[ilf the instructions,
viewed as a whole, fully and fairly present the law to the
jury, the jury has been properly instructed." State v.
McHugh (Mont. 1985), 697 P.2d 466, 471, 42 St.Rep. 371, 376.
"The instructions must be viewed as a whole to determine
whether the defendant was limited in fairly presenting his
theory." State v. Short (Mont. 1985), 702 P.2d 979, 984, 42
St.Rep. 1026, 1031. Moreover, "[tlhe effect of a jury
instruction is determined by the way in which a reasonable
juror could have interpreted it, not by the state court's
interpretation of its legal import." State v. Lucero (Mont.
1984), 693 P.2d 511, 516, 41 St.Rep. 2509, 2515.
In reviewing the instructions from this case, we note
that instruction no. 11 (quoted above) was an erroneous
statement of the law because it "includes the absence of
justifiable use of force as an element of the crime of
deliberate homicide; . . ." State v. Graves (Mont. 1981),
622 P.2d 203, 210, 38 St.Rep. 9, 16. However, this erroneous
instruction is not an issue on appeal because: (1) appellant
did not object to it, (2) appellant offered an almost
identical instruction, and (3) it benefited appellant's case
in any event. See Graves, 622 P.2d at 211.
The instructions did not instruct the jury to acquit
appellant of mitigated deliberate homicide and negligent
homicide if they found that he acted in self-defense.
However, instruction no. 17, supra, stated that under certain
circumstances appellant would be justified in his use of
force. Instruction no. 18, supra, in essence stated that, in
the face of actual or apparent danger of serious bodily harm,
a person could use a deadly weapon "with safety" and he would
not "be held accountable." That instruction also stated that
appellant could be "justified in believing himself in such
peril and acting upon such appearances." Finally,
instruction no. 20 stated that if the appellant voluntarily
engaged in a fight with the victim (which the undisputed
evidence showed he did), he would still have a "qualified
right to protect himself by using deadly force" if other
prerequisites were also met. We hold that these
instructions, when viewed as a whole, fully and fairly
instructed the jury that self-defense is a complete defense
to criminal homicide. The instructions stated that, in the
defined circumstances warranting self-defense, the appellant
could act with safety, he would not be held accountable, he
had a limited right to act, and the force would be justified.
We find that a reasonable juror would interpret these
instructions to mandate acquittal of the appellant on the
charge of mitigated deliberate homicide, if his use of force
was justified. Although the instructions are not ideal, we
find that the jury was properly instructed and that it was
not reversible error to fail to specifically instruct the
jury to acquit the appellant upon a finding of justifiable
use of force.
Appellant relies on United States Ex Rel. Collins v.
Blodgett, supra, in arguing that the instructions on
self-defense are insufficient. Defendant Collins appealed to
the federal court after this Court, in State v. Collins
(1978), 178 Mont. 36, 582 P.2d 1179, upheld his conviction
and affirmed the instructions given in his case. In United
States Ex Rel. Collins v. Blodgett, supra, the federal court
overruled this Court and granted Collins a new trial, ruling
that the instructions on self-defense were insufficient. The
instructions given in Collins are similar to those given in
the instant case in that: (1) they stated that a person was
justified in the use of force under certain circumstances,
(2) they stated that the jury must acquit defendant of
deliberate homicide if his use of force was justified, (3)
the instructions did not specifically state that the jury
must acquit defendant of mitigated deliberate homicide if his
use of force was justified. However, the instructions given
in this case are much more complete than, and are therefore
distinguishable from, the Collins instructions. Here, the
instructions went on to say that if defendant's use of force
was justified he could "act with safety" and he would "not be
held accountable. " The federal Collins ca.se is, therefore,
not controlling here.
The second issue is whether the District Court
unconstitutionally subjected appellant to double jeopardy by
designating him a dangerous offender after the court had
already sentenced him in a previous proceeding to eighty
years in prison with thirty suspended. As stated above, the
District Court sentenced appellant for mitigated deliberate
homicide, committing the offense with a weapon, and as a
persistent felony offender. The court then remanded the
appellant to the custody of the sheriff but, later that same
day, caused appellant to return to court. In this later
proceeding, the court designated appellant a dangerous
offender. No judgment was filed until after the second
sentencing hearing and that judgment states that appellant is
designated a dangerous offender because appellant has a
record of violence, demonstrated by his conviction in 1980
for a felony involving violence, and because this crime shows
extreme violence.
The Fifth Amendment of the United States Constitution
and Art. 11, Sec. 25 of the Montana Constitution protect
criminal defendants against double jeopardy; i.e., being
twice put in "jeopardy" for the same offense. Appellant
asserts his rights were violated by the second sentencing
proceeding. We disagree.
The first sentence pronounced by the court, which
omitted the dangerous offender designation, was not reduced
to writing, signed by the judge, or filed with the court.
Thus, that sentence was not a final judgment. "It is well
established that an oral ruling by the trial court is not a
final judgment, and that the trial court can change such
ruling at any time before the entry of written judgment."
State v. Diaz (N.M. 1983), 673 P.2d 501, 502. This Court has
never explicitly adopted the Diaz rule but we implicitly
stated the same rule in Wilkinson v. State (Mont. 1983) , 667
P.2d 413, 40 St.Rep. 1239. In Wilkinson we stated:
" [o]nce a valid sentence is imposed, the
court lacks jurisdiction to vacate or
modify it unless specifically authorized
by statute." (Citations omitted.)
.
. . there is no way for the judge to
change his decision, after the filing of
the judgment. (Emphasis added.)
667 P.2d at 414. The oral sentence first pronounced by the
lower court was not a final, valid judgment. Thus, that
sentence did not subject appellant to a first "jeopardy."
There was no "former" jeopardy under the first oral sentence
because it was not final. Therefore, there can be no double
jeopardy. Petition of Williams (1965), 145 Mont. 45, 399

The practice in the federal courts seems to support our
decision. See, United States v. DiFrancesco (1980), 449 U.S.
117, 134, 101 S.Ct. 426, 436, 66 L.Ed.2d 328, 344, where the
Court cited:
... the established practice in the
federal courts that the sentencing judge
may recall the defendant and increase his
sentence, at least (and we venture no
comment as to this limitation) so long as
he has not yet begun to serve that
 sentence. (Emphasis added.) (Citations
omitted. )
We hold the District Court did not err in designating
appellant a dangerous offender. Affirmed.

We concur:
-'.
,

3+& 4. @id'&&
Honorable Frank I. Haswell,
Retired Chief Justice, sitting
for Mr. Chief Justice J. A.
Turnage