No. 88-546
I N THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
GEORGE R. POPESCU,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court o f t h e Eighth 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 Chouteau,
The H o n o r a b l e Chan ~ t t i e n ,J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
Moses Law F i r m ; C h a r l e s F. Moses, B i l l i n g s , Montana
F o r Respondent:
Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , Montana
George Schunk, A s s t . A t t y . G e n e r a l , Helena
Thomas J . S h e e h y , C o u n t y A t t o r n e y , F o r t B e n t o n ,
Montana
Submitted on B r i e f s : May 11, 1989
Decided: J u n e 6 , 1989
P
Filed:
.-
<.' ,)
! Clerk
Mr. J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e O p i n i o n o f the
Court.
D e f e n d a n t Popescu was c o n v i c t e d o f two c o u n t s o f f e l o n y
a s s a u l t , one c o u n t o f i n t i m i d a t i o n , and one c o u n t o f c r i m i n a l
endanqerment i n a iury t r i a l i n t h e D i s t r i c t Court f o r t h e
T w e l f t h J u d i c i a l D i s t r i c t , Chouteau County. He appeals. We
reverse.
The dispositive issue i s whether the District Court
e r r e d i n r e q u s i n g t o g i v e any o f t h e j u s t i f i a b l e u s e o f f o r c e
i n s t r u c t i o n s o f f e r e d by d e f e n d a n t and by t h e S t a t e .
The d e f e n d a n t , who was 37 y e a r s old a t the time of
trial, l i v e s a l o n e on a f a r m n e a r F o r t B e n t o n , Montana. Tn
1986 a n d a g a i n in 1987, defendant h i r e d a crew o f custom
c o m b i n e r s l e d by J i m R a r k e r o f Yazoo C i t y , Mi.ssissippi, to
cut h i s grain. I n J u l y and August 1987, R a r k e r and h i s c r e w
cut about 600 acres of g r a i n on d e f e n d a n t ' s farm, leaving
about 400 a c r e s uncut. They t h e n went t o a n o t h e r j o b . Their
v i e w was t h a t t h e r e m a i n i n g 4 0 0 a c r e s o f g r a i n w e r e n o t y e t
r e a d y t o be c u t . D e f e n d a n t ' s v i e w was t h a t t h e y l e f t him i n
the lurch. He h i r e d a n o t h e r combiner t o c u t t h e r e m a i n i n g
grain.
The following Saturday, Rarker and a member of his
c r e w , H a s t i n g s , went t o d e f e n d a n t ' s f a r m t o c o l - l e c t t h e i r pay
f o r t h e work t h e y had done. D e f e n d a n t and t h e c o m b i n e r s had
a heated argument d u r i n g which H a s t i n g s swore a t d e f e n d a n t
a n d d e f e n d a n t drew a handgun. B a r k e r and H a s t i n g s t h e n l e f t .
The n e x t m o r n i n g , Barker and two o f his crewmembers
a g a i n drove o u t t o d e f e n d a n t ' s farm. More h e a t e d words were
exchanged. D e f e n d a n t f i r e d h i s gun e i t h e r i n t o t h e a i r ( h i s
version) o r a t t h e t h r e e men (their version). B a r k e r and
defendant then came t o t h e agreement t h a t if B a r k e r would
obtain a written apology from Hastings and return to
d e f e n d a n t some wooden b l o c k s and a c r e s c e n t wrench, d e f e n d a n t
would pay f o r t h e work d o n e . L a t e r t h a t afternoon, Barker
and a crewmember returned to defendant's farm with the
r e q u e s t e d i t e m s and d e f e n d a n t w r o t e them a c h e c k .
T h a t e v e n i n g d e f e n d a n t went t o t h e C i r c l e K s t o r e i n
F o r t Benton t o g e t a t a k e - o u t sandwich. While h e was s t i l l
there, Barker and two o t h e r s drove up and p a r k e d next to
defendant's truck. Then a n o t h e r p i c k u p d r o v e u p a n d p a r k e d
behind defendant's truck. The occupants of that truck
t e s t i f i e d t h a t t h i s was t h e o n l y a v a i l a b l e s p o t f o r them t o
park. D e f e n d a n t m e t B a r k e r a s d e f e n d a n t was w a l k i n g o u t of
the store. Defendant a l s o saw t h e o t h e r custom c o m b i n e r s
outside. He d i s p l a y e d h i s gun when B a r k e r said, "We will-
s e t t l e t h i s r i g h t h e r e and now." Defendant r e t u r n e d t o h i s
p i c k u p , y e l l e d a t t h o s e i n t h e t r u c k b e h i n d h i s t o move, t h e n
rammed t h a t t r u c k o u t o f t h e way s o t h a t h e c o u l d l e a v e . One
of that truck's passengers was just getting out when
defendant rammed i t and i n j u r e d h i s k n e e . D e f e n d a n t went
home.
Defendant was charged with felony assault for the
Saturday evening incident, intimidation and felony assault
f o r t h e Sunday m o r n i n g i n c i d e n t , felony a s s a u l t f o r use of
t h e gun i n t h e C i r c l e K i n c i d e n t , and c r i m i n a l endangerment
for ramming the pickup in the Circle K incident. After
hearing t h e evidence, t h e c o u r t dismissed t h e count a r i s i n g
out of the Saturday evening incident. Defendant was
convicted o f t h e remaining charges.
A t trial, defendant offered several instructions
concerning the defense of justifiable use of force. The
c o u r t r e f u s e d them a l l , s t a t i n g , " T h e r e i s no e v i d e n c e a t a l l
from which a threat can be aimed at the defendant and
a u t h o r i z i n g him t o a c t t h e way h e d i d . " The S t a t e d i d n o t
object to the defendant's proposed instructions on this
subject and offered its own proposed j-nstructions on
self-defense. The c o u r t r e f u s e d them, t o o .
T t i s t h e duty o f t h e District Court t o i n s t r u c t t h e
iury on every issue or theory which has support in the
evidence. S t a t e v. Starr (19831, 2 0 4 Mont. 210, 217, 664
P.2d 893, 897. The e l e m e n t s of p r o o f n e c e s s a r y t o e s t a b l i s h
justifiable use of f o r c e were described by this Court in
S t a t e v. DeMers (Mont. 1988), 762 P.2d 860, 45 St.Rep. 1901..
They are (1) t h a t t h e d e f e n d a n t was n o t t h e a g g r e s s o r ,
( 2 ) t h a t t h e d e f e n d a n t r e a s o n a b l y b e l i e v e d t h a t h e was i n
imminent danger o f u n l a w f u l harm, and ( 3 ) t h a t t h e d e f e n d a n t
used r e a s o n a b l e f o r c e n e c e s s a r y t o d e f e n d h i m s e l f . DeMers ,
763 P.2d at 865. In DeMers, the Court reviewed the
defendant's testimony to determine whether there was
sufficient evidence to submit to the jury the issue of
j u s t i f i a b l e use of force.
In the present case, defendant testified t h a t during
his Saturday evening argument with the combiners, when
H a s t i n g s swore and began r u n n i n g toward d e f e n d a n t , " I t h o u g h t
he f u l l y i n t e n d e d t o a t t a c k me." He s t a t e d t h a t he had been
told that Hastings was "real crazy ... wild,
irresponsible." He testified that he then grabbed his
handgun and t u r n e d t o f a c e H a s t i n g s , s a y i n g "keep away from
me. I'
A s t o t h e Sunday morning i n c i d e n t , d e f e n d a n t t e s t i f i e d
t h a t when Barker and t h e two o t h e r crewmembers came t o t h e
Popescu farm, t h e y p u l l e d up r a p i d l y r i g h t i n f r o n t o f h i s
truck. " I t was v e r y h o s t i l e and a g g r e s s i v e when h e p u l l e d
in." He t e s t i f i e d t h a t he feared a 3-against-l f i g h t and
a gun i n t o t h e a i r .
Defendant t e s t i f i e d t h a t when he looked o u t t h e window
o f t-he C i r c l e K on Sunday e v e n i n g , he
saw Barker p u l l i n a c r o s s t h e p a r k i n g l o t
right diagonally at my pickup, the
d r i v e r ' s d o o r , and p u l l up r i g h t n e x t t o
it j u s t a s c l o s e a s he t h o u g h t he c o u l d
g e t a t t h e time. And r i g h t behind t h a t
came a n o t h e r p i c k u p , a r e d and w h i t e
pickup. Parked behind m p i c k u p .
y I was
blockaded i n a t t h a t p o i n t .
He stated that when he walked out of the store and met
Barker, he had his gun in his hand, pointing at the ground.
After Barker said, "We will settle this, right here and now,"
Barker noticed the gun and asked, "Are you going to fire that
here in front of everybody?" Defendant testified that he
replied, "I will do what is necessary." Defendant testified
that when he got into his pickup he "thought I better get out
of here. I am going to have to get out of here." He stated
that he called out to the occupants of the pickup behind his
to move their vehicle, but that they ignored him. He then
"lightly tapped" the pickup behind him with his truck, hut
the occupants continued to ignore him so he "backed out and
moved the pickup out of my wa17."
be conclude that under the circumstances presented in
7
this case, the defendant's testimony was sufficient to
warrant submitting to the jury the issue of whether defendant
exercised justifiable use of force. Defendant's counsel
properly entered his obfection to the District Court's
refusal to give such instructions. We hold that it was error
to fail to instruct on this issue. Because of this error, we
reverse.
The defendant raised several other issues in his
appeal. The first of these is whether the District Court
erred in refusing to permit a licensed clinical psychologist
to testify in defendant's behalf. The defense offered this
testimony under 46-14-102, MCA, which relates to evidence
that defendant suffered from a mental disease or defect.
However, the defense did not give pretrial notice of relying
on mental disease or defect, as required bv S 46-14-201, MCA.
We conclude that under these circumstances the court did not
err in refusing to allow the testimony.
Defendant also raised three issues relating to whether
certain witnesses should have been allowed to testify or not.
These issues concern failure of the State to provide previous
notice of witnesses who testified on rebuttal, failure of the
court to grant a continuance to allow the defense to pursue
possible exculpatory testimony, and failure of the court to
issue certificates for subpoenas for out-of-state witnesses
desired by the defense. These issues may or may not re-arise
on retrial. We will not consider them now.
Finally, defendant argues that the evidence was
insufficient to convict him of intimidation for the Sunday
morning incident. Since the evidence may not be identical on
retrial, we decline to address the issue at this time.
Reversed and remanded for retrial.
9/ * y w A ~ -
We concur:
hief Justice
M