State v. Bousquet , 248 Mont. 53 ( 1991 )

NO. 90-373
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-v-
EUGENE WILBUR BOUSQUET,
Defendant and Appellant.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Mark P. Sullivan Judge presiding.
COUNSEL OF RECORD:
For Appellant:
C.F. Mackay ; Public Defender ~ r oect
j Office;
Anaconda, Montana
For Respondent:
Marc Racicot, Attorney General ; Deanne L. Sandholm,
Assistant Attorney General; Helena, Montana
Christopher G. Miller; Powell County Attorney; Deer
Lodae. Montana
Submitted on Briefs: February 7, 1991
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Eugene W. Bousquet appeals from the unanimous verdict of a
twelve-member jury sitting in the District Court of the Third
Judicial District, Powell County, Montana, Judge Mark Sullivan
presiding. The jury found Bousquet guilty of possession of a
deadly weapon by a prisoner, a felony. We affirm.
Bousquet presents the following issues:
1. Did the District Court err in denying Bousquet's motion
for a change of venue?
2. Was the evidence sufficient for the jury to conclude that
Bousquet was guilty of possession of a deadly weapon by a prisoner?
Eugene W. Bousquet, an inmate at Montana State Prison in
Powell County, was housed in upper A4 cell in the maximum security
area of the prison. Inmates housed in A Block were allowed only
minimum personal belongings, reading material, personal papers,
writing materials, and hygiene items.
In the early morning hours of April 3, 1989, a correctional
officer noticed that an inmate, who was not Bousquet, had a
Itpassingstringtt his possession. A Itpassingstringtt a piece
in is
of sheet torn into strips or a collection of socks tied together
used to pass items from one cell to another. The officer requested
the inmate to give the passing string to him. When the inmate
refused, the officer warned the inmates to stop running items.
When an officer went into the area, he was greeted with a general
disturbance of inmates banging, yelling, and kicking doors.
At this point, an officer called the shift sergeant who
ordered a response team into the area. When a response team went
into the area, the inmates reacted with more banging and yelling
and used their shampoo bottles to squirt liquid at the officers
through the cracks of the cell doors. The response team decided
to do a " ~ h a k e d o w n . ~ ~
During a shakedown, each prisoner is asked
to put his hands through the food door of his cell to be
handcuffed, the prisoner is removed from his cell, and the cell is
searched for weapons or contraband of any sort.
Bousquet's cell was the third cell the officers "shook down."
Bousquet refused to put his hands through the slot to be
handcuffed. Officers testified that they could see that Bousquet
was holding a wet towel with a large knot at the end of it and a
homemade knife, a llshank,ll his right hand.
in Bousquet would not
drop the items when requested.
One of the officers called the Command Post and asked for an
officer to bring mace. Bousquet, swinging the wet towel, refused
to comply with several requests to drop the weapons, and the mace
was sprayed in Bousquetls face. According to correctional
officers, when the mace was used, the shank dropped to the floor,
was picked up by one of the officers, and given to Captain DeYott
who placed the shank in the evidence locker. No attempt to
identify fingerprints on the shank was made, since several officers
had seen Bousquet with the shank.
Bousquet testified that he never possessed a shank in his
cell. According to the testimony of another inmate, the inmate
heard officers in Bousquet's cell saying that they "were going to
fix his [Bousquetls] buttv1and saw one of the officers place a
shank under Bousquetls mattress and then pretend to find it.
As a result of the incident, Bousquet was charged with
possession of a deadly weapon by a prisoner. Bousquetlsmotion for
change of venue was denied on August 24, 1989. After a three-day
trial, a jury found Bousquet guilty on September 7, 1989. The
District Judge sentenced Bousquet to ten years in Montana State
Prison, to be served consecutively to the sentence Bousquet was
already serving. From the jury's guilty verdict, Bousquet appeals.
I
The first issue is whether the District Court erred in denying
Bousquetls motion for a change of venue. Bousquet contends that
the District Court should have granted his motion for a change of
venue pursuant to 46-13-203, MCA, which provides in relevant
part:
The defendant or the prosecution may move for a change
of place of trial on the ground that there exists in the
county in which the charge is pending such prejudice that
a fair trial cannot be had in such county.
Section 46-13-203 (1), MCA. According to Bousquet, he could not
have had a fair trial in Powell County for two reasons: (1)
formation of Citizens Protective Association in Powell County,
publicized in local newspapers; and (2) location of Montana State
Prison in Powell County and near the town of Deer Lodge, areas of
small population. Bousquet claims that the citizens of Powell
County, exposed over the years to disturbances at the prison
involving inmates and escaped prisoners, have become prejudiced,
consciously or subconsciously, against prison inmates. Bousquet
asserts that the formation of Citizens protective Association
demonstrates the prejudice of Powell County residents.
The standard for a showing of prejudice pursuant to 5 46-13-
203(1) is set forth in State v. Link (Mont. 1981), 640 P.2d 366,
I1[T]he rule is that an accused in entitled to a change
of venue when it appears there are reasonable grounds to
believe that the prejudice alleged actually exists and
that by reason of the prejudice there is a reasonable
apprehension that the accused cannot receive a fair and
impartial trial.
Link
I 640 P.2d at 368, 38 St.Rep. at 985 (quoting People v. Berry
(Ill. 1967), 226 N.E.2d 591, 592-93). A district court's denial
of a motion for change of venue is not in error absent abuse of
discretion by the district court. State ex rel. Coburn v. Bennett
(1982), 202 Mont. 20, 29, 655 P.2d 502, 506.
Each motion for change of venue must be determined by the
facts and circumstances of the particular case. Coburn, 202 Mont.
at 29-30, 655 P.2d at 507. The facts of this case are similar to
those in State v. Ritchson (1982), 199 Mont. 51, 647 P.2d 830.
Ritchson moved for change of venue from Powell County because
"during the past two years there has been an unusual number of
escapes from the state prison and because of the anxiety which has
been created from this situation a citizens protective association
was reorganized . . . .I1 Ritchson, 199 Mont. at 54, 647 P.2d at
832. Ritchson claimed that the media attention given to the
citizens' group resulted in a ''poison atmosphere in the community.
A defendant seeking a change of venue because of adverse
publicity must show (1) the news reports were inflammatory; and (2)
the news reports actually inflamed the prejudice of the community
to an extent that a reasonable possibility exists that the
defendant may not receive a fair trial. State v. Miller (1988),
231 Mont. 497, 504-505, 757 P.2d 1275, 1280; Ritchson, 199 Mont.
at 54, 647 P.2d at 832.
As in Ritchson, neither test was met here. Bousquet has not
produced the news articles to which he refers and has not alleged
any prejudicial statements or publicity directed at Bousquet
personally. During voir dire of the jury panel, Bousquet's counsel
thoroughly and expertly questioned potential jurors and challenged
for cause any potential jurors who had a connection with Montana
State Prison or other possible prejudice. The District Court
excused all those challenged for cause by defense counsel. Since
no reasonable grounds existed to support Bousquet's claim of actual
prejudice, we hold that the District Court did not err by denying
Bousquet's motion for change of venue.
I1
The second issue presented by Bousquet is whether the evidence
was sufficient for the jury to conclude that he was guilty of
possession of a deadly weapon by a prisoner beyond a reasonable
doubt. The test for sufficiency of the evidence in a criminal case
is whether the evidence, when viewed in a light most favorable to
the prosecution, would allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt. State
v. Kaczmarek (1990), 243 Mont. 456, 461, 795 P.2d 439, 442; State
v. Holman (1990), 241 Mont. 238, 241, 786 P.2d 667, 669.
In order to find Bousquet guilty of possession of a deadly
weapon, the jury had to find that all three elements existed beyond
a reasonable doubt: (1) the individual charged was a prisoner; (2)
the individual knowingly possessed, actually or constructively, a
deadly weapon at the time shown in the information; and (3) the
individual possessed the weapon without lawful authority. Section
45-8-318, MCA. A review of the record shows sufficient evidence
for a jury to find each of the elements beyond a reasonable doubt.
Bousquet points out that Bousquet denied having a shank in his
cell and that another inmate testified that the shank was planted
by correctional officers. The jury is the exclusive judge of a
witness1 credibility. While a witness is presumed to speak the
truth, the presumption can be overcome by any number of factors,
including the demeanor of the witness while testifying, the
character of the witnessr testimony, the bias of the witness, the
extent of the witness1 opportunity to perceive the event, and other
evidence contradicting the witnessr testimony. Section 26-1-302,
MCA. We note that later testimony made questionable the other
inmate's ability to observe what occurred in Bousquetls cell.
Bousquet also argues that some of the incident reports omitted
mention of the shank. Omission of mention of the shank in some of
the reports does not prove that a shank was not found. Three
correctional officers testified that they saw the blade of a shank
in Bousquetlshand at the time shown in the information. Testimony
also established the chain of custody of the shank from the time
it was picked up from the floor of Bousquetls cell.
We hold that sufficient evidence supported the jury s verdict
that Bousquet was guilty of possession of a deadly weapon by a
prisoner beyond a reasonable doubt.
Affirmed.
We Concur: , '
4