State v. Hammer

NO. 87-435

I N THE SUPREME COURT OF THE S T A T E O F MONTANA

1988

STATE O F MONTANA,

P l a i n t i f f and R e s p o n d e n t ,
-vs-

D E N N I S FLOYD HAMMER,

D e f e n d a n t and A p p e l l a n t .

A P P E A L FROM: D i s t r i c t C o u r t of t h e T w e n t i e t h 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 C o u n t y of L a k e ,
T h e H o n o r a b l e C . B. M c N e i l , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

B e n j a m i n R. A n c i a u x , Polson, M o n t a n a

For R e s p o n d e n t :

Hon. M i k e 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 , M o n t a n a
R o b e r t F.W. Smith, Asst. Atty. General, Helena
L a r r y N i s t l e r , C o u n t y A t t o r n e y , Polson, M o n t a n a

S u b m i t t e d on B r i e f s : June 2 , 1 9 8 8

Decided: J u l y 25, 1 9 8 8

~ r 2 j 1988.
5 ~
Filed: '

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

Dennis Floyd Hammer (Hammer) appeals his conviction in
Lake County District Court of felony assault and misdemeanor
assault. We affirm.
On December 31, 1986, New Year's Eve, Joseph Shanklin
(Shanklin) of Polson, Montana, went to the Model Bar in
Polson to celebrate the new year with some of his friends.
Shanklin met Carol Hammer while at the bar. Carol Hammer
related to Shanklin that she was having some problems with
her "boyfriend" who had recently beaten her and that she was
afraid she would be beaten again. Unknown to Shanklin at the
time, Carol Hammer's "boyfriend" was actually her common law
husband, Dennis Floyd Hammer. Shanklin assured Carol that he
would not let her boyfriend beat her up again if he appeared
at the bar.
Dennis Hammer later arrived intoxicated at the bar,
approached Shanklin and Carol, and demanded that Shanklin
leave. Shanklin refused to leave and Hammer suggested they
"step outside." The two men exited the bar and argued but
neither man threatened or touched the other. Shanklin
re-entered the bar and Hammer did not follow him. Carol
Hammer appeared relieved to Shanklin that her husband had not
returned and asked Shanklin to remain nearby in case Hammer
came back.
Shanklin later agreed to Carol's request that he walk
her home after the bar closed. At the suggestion of the
bartender, Carol and Shanklin accepted a ride to Carol's
trailer home from an unidentified bar patron. Shanklin was
concerned for Carol's safety and thought it was a good idea
that he accompany her home for her protection. Upon arriving
at her trailer, Carol invited Shanklin in.
Shanklin and Carol talked for about twenty to thirty
minutes while Shanklin drank a beer. Dennis Hammer soon
returned home, unlocked the trailer door with his key, and
entered the trailer to find Carol and Shanklin sitting at a
table. Shanklin was surprised that Hammer had a key and was
still unaware that Hammer was Carol's husband. Hammer
demanded that Shanklin leave and, when Shanklin hesitated,
Hammer picked up a large butcher knife from a kitchen
counter. Hammer waved and slashed the knife at Shanklin
while Carol screamed for Hammer to put the knife down.
Shanklin eventually backed up to the trailer door, reached
back, opened the door, and proceeded to back out of the
trailer. As Shanklin backed out of the trailer, Hammer
lunged forward with the knife. Shanklin tried to block the
knife with his arm and received a deep cut to the bone on one
of his hands.
Shanklin ran to the trailer next door and told one of
the neighbors to call the police because he believed that
Hammer would kill Carol. The neighbor called the police and
Shanklin returned to the Hammer's trailer to see if Carol was
all right. The trailer was quiet which led Shanklin to
believe that Carol had been hurt. Shanklin entered the
trailer and looked down a hallway to see Carol lying on a
bed. Immediately thereafter, Shanklin heard the sound of a
gun cock and saw Hammer round the corner of the bedroom door
with a rifle in his hand. Shanklin again backed his way to
the door and saw Hammer point the rifle in the direction of
Shanklin's head. As he exited the trailer, Shanklin heard
the gun discharge. The rifle shot entered the middle of the
front door which was open inward into the trailer home and
exited into a nearby television set.
Shanklin was headed for the neighbor's trailer for the
second time when the first law enforcement officers arrived.
Polson Police officers and Lake County Deputy Sheriffs were
appraised of the situation by Shanklin. Shanklin told the
law enforcement officers that he believed that Carol Hammer
was in extreme danger because Dennis Hammer had beaten her
and had assaulted Shanklin with a knife and a rifle.
Shanklin also informed the officers that Hammer was
intoxicated. Law enforcement officers surrounded the trailer
and used a bullhorn for approximately one hour with no
response from the trailer. From Shanklin's explanation and
the silence from the trailer, law enforcement officials
feared that Carol Hammer was being held hostage or was
injured. Approximately one and a half hours after they
arrived on the scene, the officers forcibly entered the
trailer.
The officers found Dennis and Carol Hammer sitting on
the bed in a small bedroom. Hammer physically resisted when
he was informed that he was under arrest. Carol also
interfered with the arrest. During the commotion associated
with Hammer's arrest, the officers noticed a bloody knife on
a nearby dresser. The officers also noticed a Winchester
.30-.30 lever action rifle in plain view just inside an open
bedroom closet. Both the knife and the rifle were within
close proximity of the bed and Hammer. The officers picked
up the rifle while Hammer was still in the bedroom.
Law enforcement officers gathered evidence at the scene
of the incident without first procuring a search warrant.
Evidence gathered included the rifle, the knife, unspent
.30-.30 cartridges, blood spots, bullet fragments in the
exploded television set, and a bullet hole in the front door,
among other items. After receiving medical treatment for his
knife wound, Shanklin was transported to the Lake County
Sheriff 's office where he identified Hammer has his
assailant.
On January 14, 1987, Hammer was charged by information
with two counts of felony assault in violation of
§ § 45-5-202 (2)(a) and (2)(b), MCA. Hammer pled not guiltjr
and, on March 16, 1987, moved to suppress all evidence in the
State's possession procured during Hammer's arrest at his
trailer home. The District Court heard arguments and denied
the motion on June 3, 1987. Prior to trial, the State moved
in limine to exclude any evidence of alleged criminal acts
committed by Shanklin several months after the incident in
question. The District Court made the following ruling from
the bench :
[Tlhere shall be no inquiry into the
charges [against Shanklin] after this
incident unless the character of the
witness Shanklin is brought before the
jury in any form. If anybody says "this
is a good guy" or "he's obviously
credible" or if any comments are made by
counsel or through questions from the
State that "this is an outstanding,
honest citizen," anything of that nature,
that will open the door and I'll permit
the defendant on cross-examination to
delve into criminal matters that happened
after the incident.
In the absence of some evidence of any
kind of good character on the part of the
witness Shanklin then the defendant will
be prohibited on cross from going into
the criminal record that occurred after
this transaction. (Additions ours. )
A jury trial was held on June 18 and 19, 1987, with the
jury finding Hammer guilty of misdemeanor assault with a
knife and felony assault with a rifle. On July 22, 1987,
Hammer was sentenced to ten years imprisonment for felony
assault, six months for misdemeanor assault, five years for
the use of a dangerous weapon, and ten years additional
imprisonment as a persistent felony offender. The two
assault sentences are to be served concurrently with the five
and ten year additional sentences to be served consecutively.
Hammer was also designated a dangerous offender for purposes
of parole eligibility. It is from the convictions and
sentences that Hammer appeals and raises the following
issues:
1. Did the District Court err in denying Hammer's
motion to suppress evidence?
 2. Did the District Court err in granting the State's
motion in limine to exclude evidence concerning the victim's
conduct several months after the accident?
3. Is there substantial evidence to support the
verdict?
In his first issue, Hammer contends that the evidence
obtained in this matter should be suppressed because there
was no probable cause or exigent circumstances to justify his
arrest without an arrest warrant. Without a valid arrest,
Hammer argues, there can be no valid warrantless search.
Sections 46-5-101, -102, MCA. The State relies on
§ 46-6-401(1)(d), MCA, to argue that law enforcement officers

had "reasonable grounds" to believe that Hammer was
committing an offense or had committed an offense and that
"existing circumstances" required his immediate warrantless
arrest. Section 46-6-401 (1)(d), MCA, provides as follows:
(1) a peace officer may make an arrest
when :

(d) he believes on reasonable grounds
that the person is committing an offense
or that the person has committed an
offense and the existing circumstances
require his immediate arrest.
The terms "reasonable grounds" in the above statute are
synonymous with probable cause. State v. Hamilton (1980),
185 Mont. 522, 528, 605 P.2d 1121, 1125, cert. denied, 447
U.S. 924, 100 S.Ct. 3017, 65 L.Ed.2d 1117. Hammer agrees
that the above statute is applicable but asserts that the law
enforcement officers lacked probable cause to arrest. There
was no probable cause, Hammer suggests, because the crime
occurred before the officers arrived and the scene of the
crime was quiet after their arrival. Hammer asserts that
probable cause to justify a warrantless arrest would have
existed only if the officers witnessed the offense. We
disagree.
Shanklin communicated the following facts, among
others, to law enforcement officers at the scene of the
crime: (1) the man in the trailer (Hammer) stabbed and shot
at Shanklin; (2) the man in the trailer was intoxicated;
(3) Carol Hammer was recently beaten by the man in the
trailer; (4) Carol Hammer was terrified of the man in the
trailer and she believed he would beat her again; (5)
Shanklin believed that Carol Hammer was in danger and was
being held against her will. The officers personally
observed Shanklin's injured hand and his excited and fearful
demeanor. In addition, the officers received no response in
their attempts to hail the occupants of the trailer with the
bullhorn.
The State contends that Shanklin's report of the events
of that morning, along with the officers1 observations, form
the basis for probable cause that an offense had been
committed. The State characterizes Shanklin as a "citizen
informant" to argue that it was reasonable for the officers
to act upon his report. This Court recognizes the
distinction between a mere informant and a citizen informant.
State v. Flynn (1978), 176 Mont. 441, 578 P.2d 1165; State v.
Leistiko (1978), 176 Mont. 434, 439, 578 P.2d 1161. In
Leistiko we adopted the following relevant language from
People v. Smith (Cal. 1976), 553 P.2d 557, 560:
"A 'citizen-informant' is a citizen who
purports to be the victim of or to have
been the witness of a crime who is
motivated by good citizenship and acts
openly in aid of law enforcement ... It
is reasonable for police officers to act
upon the reports of such an observer of
criminal activity . . ."
Leistiko, 578 P.2d at 1164. Shanklin, as a victim and
citizen informant, told the officers that a crime had been
committed and that another crime was likely in progress.
From Shanklin's report and their own observations, law
enforcement officials reasonably believed that Carol Hammer
was injured and/or was being held hostage by Hammer. An
officer may arrest without a warrant where the facts and
circumstances within that officer's personal knowledge at the
time of defendant's arrest would justify a man of reasonable
caution to believe that an offense had been or was being
committed. State v. Petko (1978), 177 Mont. 229, 233, 581
P.2d 425, 427-428 (citing State v. Lenon (1977), 174 Mont.
264, 570 P.2d 901). The facts of this case support the
State's assertions that the officers had sufficient probable
cause under S 46-6-401 (1)(d), MCA, to justify a warrantless
arrest.
Hammer next contends that exigent circumstances must
have existed to justify his warrantless arrest at night in
his home. Any exigencies, Hammer contends, were negated by
the officers' hour and a half delay in making the arrest.
According to Hammer, the officers should have obtained an
arrest warrant while they waited.
The State urges this Court not to take a
"hypertechnical" view of the situation presented to the
officers in this case. The events occurred between the hours
of 3:00 a.m. and 5:00 a.m. on January 1, 1987, a holiday.
Law enforcement officials in this matter, as previously
discussed, reasonably believed that a crime had been
committed and that another crime might be in progress. The
officers showed constraint and caution in a possible hostage
situation for the safety of the occupants of the trailer and
for their own safety. We recognize that the circumstances of
a possible hostage situation such as presented here give rise
to ongoing exigencies.
The situation was not defused and the officers were not
out of danger, as Hammer contends, merely because time had
passed by. One person, Shanklin, was stabbed and shot at and
the officers reasonably believed that another, Carol Hammer,
had been beaten once and was in danger of being harmed again.
In addition, the officers were faced with the ongoing
exigency of the possible destruction of evidence. It was
impractical and imprudent for any law enforcement officers to
leave the scene and an immediate warrantless arrest was
appropriate under the existing circumstances. Section
46-6-401(1)(d), MCA. We hold that the District Court did not
err in denying Hammer's motion to suppress for lack of
probable cause to make a warrantless arrest.
In its discussion of exigent circumstances, the State
notes Welsh v. Wisconsin (1984), 466 U.S. 740, 104 S.Ct.
2091, 80 L.Ed.2d 732, and State v. Ellinger (Mont. 1986), 725
P.2d 1201, 43 St.Rep. 1778, and recognizes that it has a
heavy burden under the Fourth Amendment to the United States
Constitution to justify warrantless felony arrests in a
suspect's home. The State cites Welsh for the proposition
that "an important factor to be considered when determining
whether any exigency exists, is the gravity of the underlying
offense for which the arrest is being made." Welsh, 466 U.S.
at 753, 104 S.Ct. at 2099, 80 L.Ed.2d at 744. The underlying
suspected offenses in this case were felony assaults and
kidnapping which the State correctly identifies as offenses
which enhance the exigencies involved.
Hammer's second argument for suppression of evidence is
that the officers conducted an impermissible warrantless
search. The State seeks to justify the search as an
incidence to a lawful arrest and under the "plain view"
doctrine. The controlling statutes on this issue,
(S§ 46-5-101 and 46-5-102, MCA, provide as follows in
pertinent part:
46-5-101. Searches and seizures -- when
authorized. A search of a person,
object, or place may be made and
instruments, articles, or things may be
seized in accordance with the provisions
of this chapter when the search is made:
 (1) as an incident to a lawful arrest;

46-5-102. Scope of search incident to
arrest. When a lawful arrest is
effected, a peace officer may reasonably
search the person arrested and the area
within such person's immediate presence
for the purpose of:
(1) protecting the officer from attack;

(4) discovering and seizing any persons,
instruments, articles or things which may
have been used in the commission of or
which may constitute evidence of the
offense.
In the instant case the officers were presented with a
rifle, a large knife, and two people struggling against
arrest in the confines of a small trailer home bedroom.
Carol Hammer was not arrested and, given her actions in
resisting Dennis Hammer's arrest, it was incumbent upon the
officers to preserve evidence before they departed from the
scene. In construing $ 95-702, R.C.M. (1947), the
predecessor statute to $ 46-5-102, MCA, this Court adopted
the following language from Chimel v. California (1969), 395
U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685:
[Ilt is reasonable for a peace officer
pursuant to a lawful arrest to make a
warrantless search of the area within the
arrested person's "immediate control"
construing that phrase to mean the area
within which he might gain possession of
a weapon or destructible evidence.
State v. Cripps (1978), 177 Mont. 410, 421, 582 P.2d 312, 318
(citing Chimel, 395 U.S. at 762-63, 89 S.Ct. at 2040, 23
.
L.Ed. 2d at 694) Hammer contends that the weapons were not
within Dennis or Carol Hammer's immediate control. We
disagree. The small confines of the trailer home bedroom and
the resistance to arrest dictate that the evidence seized
from the bedroom was within the immediate presence or control
of Hammer. Pursuant to 46-5-102(1) and (4), MCA, the
officers were authorized to seize the rifle, the knife and
other items without a warrant to protect themselves from
attack and to preserve evidence "which may have been used in
the commission of or which may constitute evidence of the
offense. "
The State also claims that the "plain view" doctrine
justifies a warrantless search in this case. We need not
address the State's argument in this regard in light of our
determination that the warrantless search and seizure was
justified on other grounds.
Hammer's second issue questions the District Court's
exclusion of evidence regarding pending or resolved criminal
charges existing against Shanklin for offenses allegedly
committed sometime after the incident in question. Hammer
sought to introduce this evidence to impeach Shanklin's
credibility as a witness. Hammer argued at the lower court
that such evidence was relevant and that any prejudice
associated wtih the evidence did not outweigh probative
value. The District Court ruled in the State's favor and
excluded the evidence on the grounds that Rules 608 and 609,
M.R.Evid., prohibit any inquiry into Shanklin's criminal
record unless the State alluded to Shanklin's good character,
truthfulness, or veracity.
Evidentiary rulings concerning the admissibility of
evidence are within the District Court's discretion. Cooper
v. Rosston (Mont. 1988), P.2d -1 - 45 St.Rep.
,
978, 981; State v. Breitenstein (1979), 180 Mont. 503, 509,
591 P.2d 233, 236. We will not disturb a district court's
ruling on the admissibility of evidence absent a showing of
an abuse of discretion. Cooper, P.2d at 1 45
St.Rep. at 981. The presumption that a witness speaks the
truth and is credible can be rebutted by evidence of a
"witness' character for truth, honesty, and integrity ... "
Section 26-1-302(5), MCA. In Cooper we noted that evidence
bearing on the issue of a witnesses' credibility, in order to
be admissible, must be more probative than prejudicial.
Cooper, P.2d at , 45 St.Rep. at 982. The District
Court must balance prejudice and probative value pursuant to
Rules 401 and 403, M.R.Civ.P. Cooper, P.2d at t 45
St.Rep. at 981-982.
While we are convinced that criminal behavior is not
synonymous with impeccable credibility, the fact remains that
the District Court must still balance prejudice and probative
value. The evidence in question concerned events that
transpired several months after Hammer's assault on Shanklin.
Shanklin's alleged criminal conduct does not evidence a
propensity for violence which might support Hammer's
implication that Shanklin was the aggressor in this case. On
the contrary, Shanklin was charged with unlawful transactions
with minors, minor traffic offenses, and misdemeanor
possession of dangerous drugs and drug paraphernalia. Other
than the issue of Shanklin's credibility as a witness, the
evidence in question does not tend to make any fact at issue
in this action more or less probable than that fact would be
without the evidence. Rule 401, M.R.Evid. Hammer has failed
in his burden to show any abuse in the District Court's
discretion that the evidence in question was more prejudicial
than probative.
Hammer's final argument is that there is no substantial
evidence to support his conviction and that the District
Court should have granted his motion to dismiss at the close
of the State's case. The standard of review in substantial
evidence issues is "whether the evidence, when viewed in a
light most favorable to the State, is sufficient for a
rational trier of fact to have found the essential elements
of the crime beyond a reasonable doubt." State v. Crazy Boy
(Mont. 1988) , P.2d , 45 St.Rep. 1145, 1146. As was
the case in Crazy Boy, we have reviewed the record of this
case and conclude that there is substantial evidence which
satisfies the standard of review.
Hammer was convicted of misdemeanor assault and felony
assault pursuant to S 45-5-201 (1)(a), and S 45-5-202 (2)(b),
MCA. Section 45-5-201(1) (a), MCA, provides that a "person
commits the offense of assault if he . . . purposely or
knowingly causes bodily injury to another .. . " "A person
commits the offense of felony assault if he purposely or
knowingly causes .. . reasonable apprehension of serious
bodily injury in another by the use of a weapon." Section
45-5-202 (2)(b), MCA. Hammer contends that Shanklin's
testimony could not form the basis for a finding of guilt
because the testimony was inconsistent and because, as
asserted in the previous issue, Shanklin's credibility was
questionable.
The alleged inconsistencies related to Shanklin's
recollection of how Hammer held the rifle and of Shanklin's
position in the trailer home when Hammer shot at him. The
State notes that Hammer's counsel emphasized to the jury, in
cross-examination and closing argument, these alleged
inconsistencies in Shanklin's testimony. The jury in this
case was instructed that it was to "decide the issues of fact
resulting from the charge or charges filed ...
" against
Hammer. The jury was also correctly instructed that it is
the sole judge of a witness' credibility pursuant to
S 26-1-302, MCA. Finally, the jury was instructed that it
may determine the weight to be given to a witness' testimony
by consj-dering, among other things, " [t]he extent to which
each witness is either supported or contradicted by other
evidence in the case or may have previously said or done
something inconsistent with his testimony in Court." From
the facts and law presented in this case, the jury determined
that Dennis Hammer was guilty of the offenses charged. From
our review of the record it is apparent that a reasonable
trier of fact could have concluded that Hammer was guilty of
felony and misdemeanor assault.
Affirmed. ./

"
Justice

We concur:

@E&/-??
Justices