State v. Sotelo

No. 83-293
IN THE SUPRE-ME COURT OF THE STATE OF MONTAlJA
1984

STATE OF MONTANA,
Plaintiff and Respondent,

SEVERIANO PAP10 SOTELO,
a/k/a PETE SOTELO,
Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Jefferson,
The Honorable Frank Davis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Brad L. Belke argued, Butte, Montana

For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Jim M. McLean argued, Asst. Atty. General, Helena
John P. Connor, Jr. argued, County Attorney, Boulder,
Montana

Submitted: January 9, 1984
Decided: April 3, 1984

Filed: j 984

Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.

Appellant Severiano Papio Sotel-o appeals a jury verdict
finding h,im guilty of mitigated d-eliberate homicide. We
reverse and remand for a new trial.
On July 27, 1982, in Wickes, Montana, a fight occurred
between Sotelo and Michael Day. Day died a number of days
after the incident. Sotelo was arrested and eventua-lly
charged with deliberate homicide. Following trial., the jury
found Sotelo guilty of mitigated deliberate homicide.
Sotelo raises the following issues on appeal:
1. Did the District Court err in refusing to give a
negligent homicide instruction?
2. Did the District Court err in refusing to grant
Sotelo's motion for a continuance of the trial?
With regard to the issue of the negligent homicide
instruction, the relevant statutes are as follows:
"45-5-102. Deliberate homicide. (1)
Except as provided in 45-5-103(1), crimi-
nal homicide constitutes deliberate
homicide if:
"(a) it is committed purposely or know-
ingly; ...
"45-5-103. Mitiqated deliberate homi-
cide.
- - - 1
.- .Criminal homicide consitutes
,

mitigated deliberate homicide when a
homicide which would otherwise be delib-
erate homicide is committed under the
influence of extreme mental or emotional
stress for which there is reasonable
explanation or excuse. The reasonable-
ness of such explanation or excuse shall
he determined from the viewpoint of a
reasonable person in the actor's
situation.
45-5-104. Negligent homicide. (1)
Criminal homicide constitutes negligent
homicide when it is committed
negligently."
Further, "negligently" is defined under section 45-2-101(37),
MCA, as:
". . . a person acts negligently with
respect to a result or to a circumstance
described by a statute defining an of-
fense when he consciously disregards a
risk that the result will occur or that
the circumstance exists or when he disre-
gards a risk of which he should be aware
that the result will occur or tha-t the
circumstance exists. The risk must be of
such a nature and degree that to disre-
gard it involves a gross deviation from
the standard of conduct that a. reasonable
person would observe in the actor's
situation. 'Gross deviation' means a
deviation that is considerably greater
than lack of ordinary care. Relevant
terms such as 'negligent' and 'with
negligence' have the same meaning."
The question is whether a defendant is entitled to an
instruction regarding a lesser included offense. Sotelo
mainta.ins that negligent homicide in this instance was a
lesser included offense of the deliberate homicide charge.
The rule is that the District Court's instructions must cover
every issue or theory having support in the evidence, and the
inquiry of the District Court must only be whether or not any
evidence exists in the record to warrant an instruction..
State v. Buckley (1976), 171 Mont 238, 557 P.2d 283,
In this ca.se, failure to instruct on negligent homicide
constitutes reversible error. There was evidence in the
record that Sotel-o only kicked Day in an attempt to free his
leg when Day grabbed him. Furthermore, the evidence is not
at all clear on the exact cause or causes of Day's death.
Clearly, Day had been drinking heavily before the altercation
occurred. There is conflicting evidence in the record as to
exactly what blows were inflicted by Sotelo upon the victim
and the reasons for the blows. The determination of these
facts are jury questions, and it is a "fundamental rule that
the court's instructions should cover every issue or theory
having support in the evidence. l1 Sta.te v. Bouslaugh (1978),
176 Mont 78, 576 P.2d 261, Because of the conflicting evi-
dence regarding the fight and also because of the uncertainty
as to the exact cause of the victim's death, there was evi-
dence in the record to support a negligent homicide instruc-
tion. By refusing to give such an instruction, the District
Court erred and., accordingly, we reverse and remand for a new
trial.
Addressing the second issue, appellant argues that he
was deprived of his right to a fair trial and to effective
assistance of counsel due to the District Court's failure to
grant a motion for a continuance. The facts leading up to
this motion are as follows:
Sotelo's initial attorney was relieved of duty on
December 14, 1982. Sotelo's present counsel was asked if he
would take the case on December 16, 1982. Counsel responded
that he would prefer not to take Sotelo's defense beca.use he
would be out of town until December 30, 1982, and had briefs
due in this Court on January 10 and 15 as well as another
homicide case in Jefferson County. Counsel finally agreed to
allow his name to be added to the list of available attor-
neys. On December 20, 1982, while he was out of town, coun-
sel was appointed Sotelo's defense attorney. He learned of
his appointment on December 30 when he returned. On January
3, 1983, Judge Davis set trial for January 24. Counsel was
notified of the trial date on January 5. On January LO,
counsel had a telephone discussion with Judge Davis regarding
the necessity of a continuance. On January 12, counsel met
with Sotelo's prior counsel and also discussed the need for a
continuance with the prosecution. Thereafter, counsel
prepared a motion for a continuance and supporting a-ffidavit.
The motion was heard and denied on January 1.7, the next
available court da.te. In the seven days remaining before
trial, counsel was able to interview only eight of the
State's twelve witnesses and was unab1.e to locate possible
defense witnesses. Counsel was also unable to interview the
State's pathologist prior to trial.
Section 46-13-202, MCA, governs motions for a continu-
ance. It states:
"Motion for a continuance. (1) The
defendantor the state may move for a
continuance. If the motion is made more
than thirty days after arraignment or at
any time after trial has begun, the court
may require that it be supported by
affidavit.
"(2) The court may upon the motion of
either party or upon the court's own
motion order a continuance if the inter-
ests of justice so require.
" (3) All. motions for continuance are
addressed to the discretion of the trial
court and shall be considered in the
light of the diligence shown on the part
of the movant. This section shall be
construed to the end that criminal. cases
are tried with due diligence consonant
with the rights of the defendant and the
state to a speedy trial."
Clearly, discretionarv with the District Court whether
or not to grant a continuance and the statute provides guide-
lines for the court's consideration.
Here, there is no question of defense counsel-'s dili-
gence. The State admits counsel was diligent but argues that
it would. have been inconvenient for the State to re-subpoena
its witnesses. Additionally, there was no contention by the
State that any of its witnesses would be unavailable if the
trial were continued.
 While there is no doubt that the State has a right to a
speedy trial, the defendant's right to a fair trial must take
precedent over the State's right--especially when the defen-
dant has waived his right to a speedy trial as is the case
here.
Article 11, Section 24 of the Montana Constitution
provides certain rights to a person accused of a crime.
Included in these rights is the right to appear and defend in
person and by counsel; to meet the witnesses against him face
to face; and to have process to compel the attendance of
witnesses in his behalf. In addition to the rights specifi-
cally enumerated in the Montana Constitution, the accused is
entitled to effective assistance of counsel on his behalf.
Jf counsel is diligent yet has not been afforded sufficient
time to prepare a defense, the accused's specific rights have
been violated and his general right to a fair trial has been
denied.
We find that under the circumstances presented by this
case that the refusal to grant the continuance was an abuse
of the court's d-iscretion. Some of the factors we have
considered in reaching this conclusion are as follows:
counsel requested a four-week continuance which was reason-
able under the circumstances; there was no showing that there
would be prejudical interference with the presentation of t.he
State's case if such a continuance were granted; the continu-
ance was requested for legitimate reasons; defense counsel
was diligent in the preparation of his case; the defendant's
right to a speedy trial would not be violated with the con-
tinuance; the defendant's right to effective assistance of
counsel and the demands of justice require the continuance.
 We commend the District Court's concern with the amount
of time the defendant had been in jail awaiting trial; howev-
er, defendant had signed a wai-ver of his right to a speedy
trial. We also note that it developed on oral argument the
District Court, by refusing to grant the continuance, was
attempting to halt the practice of unreasonable delay. We
also commend this attitude. However, when a continuance is
requested, and that request is reasonable given all the
relevant factors including defendant's right to a fair trial
and effective assistance of counsel, it constitutes abuse of
discretion for the court to refuse to grant the continuance.
In summary, we reverse and remand this matter for a new
trial on two grounds: (1) failure to give the negligent

homicide instruction; and (2) failure to grant a continuance
under the circumstances presented here.

Chief Justice
Ud?

We concur:
 .f
Justic s