State v. Heinrich ( 1990 )


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  •                                                                          No.    89-012
    IN THE SUPREME COURT OF THE STATE OF M N A A
    OTN
    STATE OF MONTANA,
    P l a i n t i f f and R e s p o n d e n t ,
    -vs-
    PAUL A T O Y H E I N R I C H ,
    NH N
    D e f e n d a n t and A p p e l l a n t .
    APPEAL FROM:                                   ~ i s t r i c t ourt of t h e Seventh J u d i c i a l ~ i s t r i c t ,
    C
    I n and f o r t h e County o f ~ i c h l a n d ,
    The H o n o r a b l e D a l e Cox, J u d g e p r e s i d i n g .
    COUNSEL O RECORD:
    F
    For Appellant:
    J . Douglas A l e x a n d e r , S i d n e y , Montana
    For Respondent:
    Hon. Marc R 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
    ~ a t r i c i a . S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
    J
    v i c t o r G . Koch, County A t t o r n e y ; P h i l l i p C a r t e r , Deputy,
    S i d n e y , Montana
    S u b m i t t e d on B r i e f s :   Dec.   1 4 , 1989
    Decided:          F e b r u a r y 1 4 , 1990
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    Honorable Joel G. Roth, District Judge, delivered the Opinion of
    the Court.
    The defendant appeals his conviction of felony assault from
    the District Court of the Seventh Judicial District, Richland
    County.   During the jury trial, the trial court admitted evidence
    of other crimes committed by the defendant.     The defendant, on
    appeal, contends that by admitting said evidence prejudicial error
    was committed which requires reversal.   We agree.
    PRE-TRIAL PROCEEDINGS
    As the result of a reported shooting incident on August 11,
    1987, at the defendant's trailer house near Sidney, Montana, and
    the subsequent investigation, the Richland County Attorney on
    August 17, 1987, filed two criminal charges against the defendant:
    Count I, alleged assault, a felony, and Count 11, alleged criminal
    possession of dangerous drugs (marijuana), a felony.       Count I
    alleged that the defendant purposely or knowingly caused reasonable
    apprehension of serious bodily injury in another by use of a weapon
    when, on or about August 11, 1987, the defendant pointed a revolver
    in the direction of a vehicle occupied by Henry David LaFever and
    John P. Knoop and caused Henry David LaFever to believe he might
    be seriously injured or killed by a shot from the revolver, in
    violation of 5 45-5-202(2) (b), MCA.   Count I1 alleged that on or
    about August 11, 12 or 13, 1987, or any combination of those three
    dates, the defendant possessed a dangerous drug by having in his
    possession more than sixty grams of marijuana, in violation of
    §   45-9-102 ( 4 ) , MCA.
    The defendant pled not guilty to both charges on September 16,
    1987, and filed a notice of defense of justifiable use of force as
    to the assault charge.
    The State on October 30, 1987, gave its written notice of
    intent to introduce evidence of other crimes (commonly referred to
    as the Just notice).        Pursuant to the Just notice, the State sought
    a pretrial ruling from the trial judge which would allow the State
    to offer evidence of three other crimes committed by the defendant.
    The Just notice described the evidence would be: (1) a July 27,
    1983, offense of criminal possession of dangerous drugs, a felony,
    to which the defendant pled guilty on November 16, 1983 (offered
    to prove the defendant's motive, intent, absence of mistake or
    accident in the instant drug charge); (2) a July 29, 1983, offense
    of intimidation, a felony, for which the defendant was sentenced
    on January 4, 1984 (offered to prove defendant's motive, intent,
    preparation, plan, absence of mistake or accident in the instant
    assault charge) ; and (3) evidence of the seizure of dangerous drugs
    in defendant's trailer house on August 12, 1987 (offered to prove
    defendant's motive, intent, absence of mistake or accident and to
    disprove defendant's claim that the drugs belonged to another
    person in the instant drug charge).
    The defendant's attorney moved on February 11, 1988, to
    exclude the evidence of the other crimes.   The defendant's motion
    to exclude and the State's Just notice were heard by the trial
    court on the morning of the first day of the jury trial, March 7,
    1988.
    The jury trial commenced on March 7, 1988.   The roll call of
    the summoned jurors was completed and the pre-voir dire panel was
    seated in the jury box.   The prospective jurors were then excused
    and the defendant changed his plea to guilty to Count 11, criminal
    possession of dangerous drugs, a felony.    After questioning the
    defendant, the trial judge accepted the guilty plea.   There is no
    appeal from the defendant's conviction of Count 11.
    The State's Just notice and the defendant's opposition thereto
    were then argued to the trial court.        The judge denied the
    defendant's motion to exclude the other crimes evidence and allowed
    the State to offer evidence of the defendant's 1983 drug conviction
    and 1983 intimidation conviction and the evidence of the August 12,
    1987, seizure of marijuana at the defendant's trailer house and
    evidence of the August 13, 1987, seizure of the bag of marijuana
    thrown from the defendant's car. The reasoning of the trial judge
    was that the evidence of the other crimes would go to prove the
    motive of the defendant in assaulting Henry LaFever with the
    revolver.   The motive was to scare and intimidate Henry LaFever
    because the defendant thought Henry LaFever was telling the Sidney
    law enforcement people that he (the defendant) was in possession
    of and dealing in dangerous drugs.   Additionally, the evidence of
    the other crimes would go to rebut the defendant's asserted defense
    of justifiable use of force for self-defense.
    The trial then proceeded with the voir dire of the jury panel,
    the exericse of peremptory challenges, the opening statements of
    counsel and the presentation of evidence.
    THE EVIDENCE AT TRIAL
    Twelve witnesses testified at trial (including the defendant)
    and certain documents and items of physical evidence were admitted.
    The evidence established the following chain of events.
    On August 11, 1987, about 4:45 p.m., Henry LaFever and John
    Knoop drove in LaFeverVs Chevy pick-up truck to the defendant's
    trailer house which was located near Sidney, Montana, in Richland
    County.   LaFever intended to confront the defendant about rumors
    that he (the defendant) had been spreading around town that LaFever
    called the police on him (the defendant) for possessing or dealing
    dangerous drugs. When LaFever and Knoop arrived at the defendant's
    trailer house, no one was there. A few minutes later they observed
    the defendant's 1967 black Camaro approaching the trailer house on
    the gravel road. The Camaro pulled into the yard and stopped. The
    occupants of the Camaro were the defendant (driving) and passengers
    Gisele LaFever (Henry's sister who was also the girlfriend of the
    defendant) and Robert Wagner.
    Wagner testified that LaFever said, "Get out of the car.    I'm
    going to kill you, you little bastard."     LaFever testified, "1
    asked him [the defendant] why held been spreading around town that
    I'd called the police on him."    The defendant testified that he
    suspected LaFever of telling the police that he (the defendant) was
    dealing drugs and he told that to LaFever during the ensuing fight.
    LaFever grabbed the defendant around the neck as the defendant was
    getting out of his car and threw him on the ground and banged his
    head on the ground. A wrestling match resulted between the two men
    which lasted for a few minutes with LaFever getting the best of the
    defendant.   LaFever is 6' tall and weighs about 180 to 200 pounds,
    while the defendant is 5'7'' and weighs about 135 pounds.     Wagner
    picked up a piece of pipe to assure that Knoop would not enter the
    fracas.   While the two men were wrestling on the ground, Gisele
    grabbed her brother by the hair and told him to stop and to leave.
    Henry LaFever backhanded    Gisele across her    face.     The
    defendant broke away from Henry and ran into the trailer house
    where he obtained a .22 caliber Ruger Bearcat revolver from his
    dresser and came back outside. In the meantime, Henry LaFever and
    Knoop were in the process of getting into LaFeverlstruck to leave.
    There was conflicting evidence about whether the defendant ever
    pointed the revolver at LaFever or Knoop or the truck.   Two shots
    were fired by the defendant.     Some of the testimony was to the
    effect that the defendant was pointing the revolver in the
    direction of the truck when the shots were fired. Other testimony
    was that the defendant pointed the revolver upward toward the sky
    when he fired the two shots.    There were no bullet holes found in
    LaFeverls truck and no one was injured by the shots.      There was
    conflicting testimony about whether or not LaFever was wearing a
    knife on his belt.   The defendant testified that he did not use the
    gun to intimidate LaFever about informing on him but rather the
    defendant shot the revolver to drive LaFever and Knoop off.     The
    defendant testified that he was trying to convey a message to
    LaFever that he had a gun and it was loaded and if LaFever came
    back to hurt him he had some protection.
    Immediately after LaFever and Knoop left, the defendant told
    Gisele to go to the neighbor1 house and call the sheriff.
    s                                  She
    did, and shortly thereafter Deputy Richland County Sheriff Charles
    Greenough arrived at the trailer house.    He asked the defendant,
    Gisele and Wagner to write out statements of what had occurred.
    Greenough learned from the three that LaFever had assaulted the
    defendant. Nothing was said about defendant's use of the revolver.
    Greenough then went to Knooplshouse and took statements from both
    Knoop and LaFever.   From them he learned that a revolver had been
    fired by the defendant.
    Deputy Greenough knew that the defendant was on parole from
    the Montana State Prison and so he contacted Jack Fasig, the local
    parole officer, and informed Fasig of the fact that the defendant
    had fired a gun.     Because it was a violation of the defendant 's
    parole conditions for him to possess a gun and the location of the
    gun was unknown, Fasig obtained a search warrant for the gun from
    the local justice of the peace on August 12, 1987.      The search
    warrant authorized a search of the defendant's trailer house and
    his two vehicles.    During the evening of August 12, 1987, Fasig
    and Greenough went to the defendant's trailer house (no one was
    there) and searched for the revolver.      They did not find it.
    However, they did find (and seize) in the trailer house marijuana
    roaches, a marijuana cigarette, marijuana seeds and drug parapher-
    nalia (a pipe)   .
    During the morning of August 12, 1987, Gisele went to the
    Sidney police and to the county attorney to discuss the fight.
    There was a dispute in the testimony about whether or not the
    defendant was with her at the police station and at the county
    attorney's office.
    Later the same morning (August 12), the defendant, Gisele and
    Wagner drove to a town about seventy miles from Sidney to take
    Wagner to a carnival where he was working.      The defendant and
    Gisele returned to Sidney later that night and were spotted by
    police officer John Dynneson about midnight.   Dynneson knew there
    was a search warrant outstanding for the gun and so he reported the
    sighting to Greenough.    Greenough contacted Fasig who said he was
    on his way.
    Greenough and Bill Anderson, a jailer, left by car to find the
    defendant's car (the Camaro).      They found it and stopped the
    defendant.    The defendant was driving and Gisele was a passenger.
    Greenough told the defendant that Fasig had a search warrant for
    the car to search for the gun and that Fasig was on his way.
    Greenough asked the defendant to give him the gun if he had it, and
    the defendant opened the truck of the car voluntarily and produced
    the holstered revolver and placed it on the top of the car trunk
    as ordered by Greenough. Fasig had not yet arrived and it was cold
    so Greenough allowed the defendant and Gisele to get back into the
    car. The defendant and Gisele sat in the car about fifteen minutes
    and then unexpectedly and without permission from Greenough drove
    away quickly.    The holstered revolver fell off the trunk and was
    retrieved by Anderson who then with Greenough gave chase.    Fasig
    arrived about that time and both cars then pursued the defendant's
    car for three or four miles but were unable to catch the car.
    However, during the chase, Greenough observed the defendant's car
    stop momentarily and then continue on.    After Greenough lost the
    defendant's car, he returned to the place on the road where he had
    seen the defendant stop and found a bag of marijuana near the road.
    Upon inspection of the .22 caliber Ruger Bearcat revolver,
    there were six cartridges in the cylinder; four live rounds and two
    empty rounds.
    During Greenough's pursuit of the defendant's car, Greenough
    contacted the sheriff's office in McKenzie County, North Dakota,
    for assistance in stopping the defendant.        Later on August 13,
    1987, North Dakota Deputy Sheriff Lloyd Clock found the defendant's
    car empty and locked at a well site and reported the same to
    Greenough.      The defendant's car was impounded and towed into
    Sidney.
    During the chase of the defendant's car and when the car
    momentarily stopped, not only was the bag of marijuana thrown out,
    but the defendant got out and hid in the bushes while Gisele drove
    off.    Gisele, after abandoning the car at the well site, went to
    a friend's house and stayed there. A few days later the defendant
    telephoned her and Gisele then borrowed a car, picked up the
    defendant and they left the Sidney area.   The defendant was later
    apprehended in the borrowed car in Park City, Montana.
    EVIDENCE OF OTHER CRIMES
    During the trial and over the continuing objections of
    defendant's lawyer, evidence was admitted about the other crimes
    committed by the defendant.    The trial judge gave the cautionary
    instruction as the evidence was presented and also gave it as a
    final instruction as required by the Just case.    Fasig testified
    about executing the search warrant for the revolver at the
    defendantlsunoccupied trailer house on August 12, 1987. Although
    the revolver was not found, Fasig testified about finding and
    seizing marijuana roaches, a marijuana cigarette, marijuana seeds
    and drug paraphernalia (a pipe).
    Also during trial, Greenough testified about finding the bag
    of marijuana (containing over 200 grams) along the side of the road
    where the defendant had momentarily stopped on August 13, 1987.
    It is to be noted that the defendant had pled guilty to the
    drug charge at the beginning of this trial.   There was no need for
    the State to present evidence relating to the drug charge as the
    defendant had admitted his possession of dangerous drugs.
    If the marijuana evidence of August 12 and August 13 was
    somehow related to the assault charge (which we do not accept), it
    was not admissible as "prior1'crimes evidence because the assault
    occurred on August 11, 1987.       It would be ltsubsequentll
    crimes
    evidence and clearly not admissible under State v. Just (1979), 
    184 Mont. 262
    , 
    602 P.2d 957
    .   We fail to understand how the August 12
    and August 13 marijuana evidence is similar to the assault offense
    or how it tends to establish a common scheme, plan or system.   As
    indicated above, the August 12 and August 13 marijuana evidence was
    glsubsequent" and not "prior" to the assault.
    to                                    We hold that the
    Just requirement of nearness in time relates to other crimes or
    wrongs committed "priorw to the offense for which the defendant is
    being tried.   The prejudice to the defendant by allowing the post-
    assault marijuana evidence to be admitted to prove the assault
    offense is obvious and is not harmless.
    Also during the trial, Fasig testified about the defendant's
    July 27, 1983, dangerous drug offense and his conviction thereof.
    In applying the four factors set out in the Just case to this prior
    crimes evidence, we consider the similarity of it to the present
    assault charge and find no similarity; the nearness in time of the
    1983 drug conviction to the 1987 assault and find over four years
    intervened; the tendency of the 1983 drug conviction to establish
    a common scheme, plan or system and find no common scheme, plan or
    system. The prejudice to the defendant by admitting the prior 1983
    drug conviction when it does not satisfy the four factors test of
    the Just case is evident and is not harmless error.
    Finally, during the trial, both Fasig and witness Loren James
    Lowry testified about the defendant's July 29, 1983, felony
    intimidation offense.   The testimony was to the effect that the
    defendant had intimidated a person named Steve Herman because the
    defendant thought Herman had informed (about having drugs) on
    either the defendant or the defendant's then common-law wife, Pam
    Junso.   Fasig testified that the defendant had threatened to kill
    Herman if Herman testified against the defendant in connection with
    the July 27, 1983, drug offense.        Lowry testified that the
    defendant wanted to know from Herman who had informed on him and
    there was an altercation between the defendant and Herman (a
    shoving match) but no fists were swung and no weapon was involved
    and no threats were made by the defendant.        Unfortunately, a
    certified copy of the intimidation charge and conviction was not
    made part of the record to clarify whether it was the defendant or
    the defendant's common-law wife on whom Herman had presumably
    informed.
    Again, applying the four factors of the Just case to the
    defendant's 1983 intimidation offense, we find the similarity of
    the intimidation offense to the present assault charge to be
    lacking (the victims in the two offenses were different, no weapon
    was used in the intimidation offense whereas a revolver was used
    in the assault, and the defendant sought out Herman in 1983 whereas
    LaFever sought out the defendant in the present assault offense);
    the 1983 intimidation offense was over four years prior to the
    present assault charge; and the 1983 intimidation offense does not
    tend to establish a common scheme, plan or system.   The prejudice
    to the defendant in allowing the 1983 intimidation evidence is
    clear and is not harmless.
    Rule 404(b) of the Montana Rules of Evidence provides:
    Other crimes, wrongs, acts. Evidence of other
    crimes, wrongs, or acts is not admissible to
    prove the character of a person in order to
    show that he acted in conformity therewith.
    It may, however, be admissible for other
    purposes, such as proof of motive, oppor-
    tunity, intent, preparation, plan, knowledge,
    identity, or absence of mistake or accident.
    The Just case requires that the trial judge consider the
    proposed other crimes evidence at a pretrial hearing in light of
    the four factors set forth in Just: similarity of crimes; nearness
    in time; tendency to establish a common scheme, plan or system; and
    that the probative value of the other crimes evidence is not
    substantially outweighed by prejudice to the defendant.      Other
    cases discussing the required Just case analysis are State v. Case
    (1980), 
    190 Mont. 450
    , 
    621 P.2d 1066
    , and State v. Hansen (1980),
    
    187 Mont. 91
    , 
    608 P.2d 1083
    , afftd after remand, 
    633 P.2d 1202
    , 38
    St.Rep. 1541.
    In light of our discussion above, we conclude that the trial
    judge erred in his pretrial ruling which would permit the State to
    present the other crimes evidence, and there was prejudicial error
    when the other crimes evidence was admitted during trial.
    CONCLUSION
    This case is an example of the State presenting other crimes
    evidence which does not satisfy the strict requirements of the Just
    decision.   The admission of other crimes evidence is the exception
    and not the rule. The defendant was prejudiced by the other crimes
    evidence allowed into evidence in this case and his conviction of
    felony assault is reversed. This cause is remanded to the District
    Court of the Seventh Judicial District.
    Q.&c.z.-*$/  District
    Judge, sitting byplace of Justice
    Diane G. Barz, who deems herself
    disqualified.
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    No. 89-012
    b
    STATE OF MONTANA,                       1           -.
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    Plaintiff and Respondent,     1           ;-
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    V.                                 1   0R D E R             C7
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    :
    PAUL ANTHONY HEINRICH,
    1
    Defendant and Appellant.      1
    On February 14, 1990, this Court entered its Opinion in this
    appeal.
    On February 23, 1990, the State of Montana filed a petition
    for rehearing and a response to the petition for rehearing was
    filed by appellant on March 27, 1990. The Court having considered
    the petition for rehearing and response thereto,
    IT IS ORDERED:
    1. The following paragraph beginning at line 14 on page 11
    of the Opinion of the Court is hereby deleted:
    If the marijuana evidence of August 12 and
    August 13 was somehow related to the assault
    charge (which we do not accept), it was not
    admissible as "priorI1 crimes evidence because
    the assault occurred on August 11, 1987. It
    would be llsubsequentucrimes evidence and
    clearly not admissible under State v. Just
    (1979), 
    184 Mont. 262
    , 
    602 P.2d 957
    . We fail
    to understand how the August 12 and August 13
    marijuana evidence is similar to the assault
    offense or how it tends to establish a common
    scheme, plan or system. As indicated above,
    the August 12 and August 13 marijuana evidence
    was llsubsequentll and not Inprior" to the
    to
    assault. We hold that the Just requirement of
    nearness in time relates to other crimes or
    wrongs committed ltpriorll the offense for
    to
    which the defendant is being tried.        The
    prejudice to the defendant by allowing the
    post-assault marijuana evidence to be admitted
    to prove the assault offense is obvious and is
    not harmless.
    2.   The following paragraph shall be inserted in the Opinion
    of this Court in place of the paragraph above-deleted:
    We fail to understand how the August 12 and
    August 13 marijuana evidence is related or
    similar to the assault charge or how it tends
    to establish a common scheme, plan or system.
    The prejudice to the defendant by allowing the
    August 12 and 13 marijuana evidence to be
    admitted to prove the assault offense out-
    weighs its probative value and is not harm-
    less.
    3.   On page 9, line 10, of the Opinion Ittruck of the carM
    should read Ittrunkof the car."
    4.   Let remittitur issue forthwith.
    DATED this     /yg    day of April, 1990.
    ~istr-ict - -
    Hon. 4661 G. ~ o t h ,       Judqe,
    sittidcj in place of Justice R. C.
    McDonough
    We concur:
    H o 6 . Ted L . ~ i - z d p ! r / ) D i s t r i c t
    Judge, s i t t i n g jln&lace of
    J u s t i c e Diane G . Barz
    

Document Info

Docket Number: 89-012

Filed Date: 2/14/1990

Precedential Status: Precedential

Modified Date: 2/19/2016