State v. Mummey , 264 Mont. 272 ( 1994 )

JUSTICE TRIEWEILER

dissenting.

This case involves nothing more than a barroom argument between two drunks which resulted in a fight outside the bar between defendant and his accuser. No one was seriously injured in the fight, and the purported victim was, by his own admission, the aggressor. Yet, as a result of that fight, defendant stands convicted of a felony for which the potential penalty is ten years in prison and a $50,000 fine.

While the historical effort to bring law and order to the west is commendable, this case is a classic example of judicial acquiescence in prosecutorial overkill and should be a cause of alarm to all Montana citizens. This “case of the deadly sneaker” merits further discussion.

I dissent from the majority opinion for two reasons: First, the State produced insufficient evidence to prove felony assault pursuant to § 45-5-202(2)(a), MCA, and our prior decision in State v. Deshner (1977), 175 Mont. 175, 573 P.2d 172. Second, if what constitutes a “weapon” for the purpose of satisfying the elements of the felony assault statute can be established on a case-by-case basis after the act complained of was committed, and can be construed so broadly as to include a tennis shoe, then I believe the statute under which defendant was convicted is unconstitutional in violation of Article I, Section 10, of the United States Constitution which prohibits ex post facto laws, and is impermissibly vague in violation of the Due Process Clauses of the Federal and State Constitutions.

Other than the nature of the alleged “weapon” that was used by defendant, the facts in this case are practically indistinguishable from the facts which we held required reversal of the defendant’s conviction in Deshner. In that case, the defendant was charged with aggravated assault under the same provisions which now form the felony assault statute. In that case, the victim testified that while he was driving his car he was struck in the jaw by some kind of projectile. He was not aware of exactly what had hit him, nor who had flung the projectile. The only evidence regarding his physical condition was that he observed blood and admitted himself to the emergency room at the hospital. The only evidence connecting the defendant and a “weapon” to the incident was testimony from an investigating officer to the effect that the defendant confessed to him following the incident that he fired two shots with a slingshot at the victim’s automobile.

On appeal, Deshner contended that there was no proof that the slingshot which was used was capable of producing death or serious bodily injury, and therefore, proof was absent on an essential element of the crime of aggravated assault. That is exactly the nature of the proof which was required to convict defendant of felony assault in this case, and which was not produced. As the basis for reversing the defendant’s conviction in the Deshner case, this Court stated that:

The cumulative effect of the testimony offered at trial, taken in the light most favorable to the state does not prove that the assault was committed with a weapon "capable of being used to produce death or serious bodily injury.” Even if we assume that the use of a slingshot was adequately proven, the record is barren of any testimony that the slingshot-projectile combination was in fact a weapon capable of producing death or bodily injury. No evidence was presented concerning the size, weight or shape of the projectile which struck the victim nor the velocity at which the slingshot was capable of propelling such projectile. The evidence indicated that VanDenBos received a bruise on the jaw requiring no hospitalization and that no bones were broken. Such proof falls far short of establishing an assault with a weapon capable of being used to produce death or serious bodily injury as required by statute.

Deshner, 573 P.2d at 174.

In this case, the nature of proof was remarkably similar. There were only three witnesses to the altercation which formed the basis for the felony assault charge against defendant. They were the participants in the altercation, Merle Darling and defendant, and Louie Mount, who testified after receiving immunity from prosecution. Mount’s and defendant’s accounts of what happened were substantially different than Darling’s. They described an altercation with both men rolling around on the ground flailing at each other with both arms and feet. While the jury was entitled to disregard the testimony of Mount and defendant, they apparently gave it some weight because defendant was acquitted of any assault on Raymond Miller. That acquittal was inconsistent with the testimony of Darling, and consistent with testimony from Mount and defendant.

However, even if Darling’s testimony is accepted in its entirety, it provided no more proof than was established by the State in Deshner.

Darling testified that prior to the altercation, he had consumed nine or ten beers that evening, but was not sure because he was not counting. When he came out of the Nite Train Bar he alleged that he charged defendant and another to “clean them characters off of Raymond.” However, when he got to the fight scene someone knocked him down, although he did not know who. He testified that after he was on the ground he believes he was kicked by two people, but admitted that after being knocked down he was not 100 percent clear of what happened.

He reported sustaining bruises, several lacerations, and that his false teeth were shattered, although he did not know who knocked his teeth out. He testified that he did not feel any of the injuries he sustained amounted to serious bodily injury and did not report ever being admitted to the hospital for observation or treatment.

He did not recall having any altercation with Louie Mount, even though Mount admitted kicking Darling’s arm free from defendant in order to extricate defendant from the fight. He was not sure what kind of footwear anyone was wearing.

Defendant did offer into evidence the tennis shoes he stated he was wearing that evening, but there is no indication in the record of their size, weight, composition, or how they were more dangerous than a bare foot — if they were.

As in Deshner, the above evidence falls “far short of establishing an assault with a weapon capable of being used to produce death or serious bodily injury,” and therefore, falls far short of the proof required to convict under Montana’s felony assault statute. Certainly any injuries sustained by Darling’s companion, Raymond Miller, cannot support defendant’s conviction. Furthermore, defendant was acquitted of any assault on Miller.

Deshner has never been reversed nor modified. The Deshner decision makes good sense. It should control the outcome in this case.

Furthermore, but just as importantly, Montana’s felony assault statute provides no notice to anyone that an article of clothing as apparently harmless as a tennis shoe, when involved in what would appear to be a simple misdemeanor assault, would increase the gravity of the offense from one that would normally be punishable by a maximum fine of $500 and imprisonment for six months -under § 45-5-201, MCA, to a felony punishable by a fine of up to $50,000 and imprisonment for a period of up to ten years. Because no rational person would understand that the consequence of his conduct is so markedly different depending on whether he kicked someone with a bare foot or a foot covered with a thin layer of canvas, any statute which allows such unexpected consequences is impermissibly vague, and therefore, void because it violates the Due Process Clauses of the Montana and United States Constitutions.

We have previously held that a statute can violate the Fourteenth Amendment of the United States Constitution, and Article II, Section 7, of the Montana Constitution, if it is unconstitutionally vague. State v. Woods (1986), 221 Mont. 17, 22, 716 P.2d 624, 627.

The issue of “vagueness” with regard to a statute or ordinance can be raised in two different connotations: (1) whether it is so vague the law is rendered void on its face; or (2) if it is vague as applied in a particular circumstance.

The general rule is that a statute or ordinance is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.

City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668.

I conclude that the combination of §§ 45-5-201 and -202(2)(a), MCA, are unconstitutionally vague as applied to the facts in this case because a person of ordinary intelligence would not know where misdemeanor assault leaves off and felony assault begins. According to the majority’s opinion, such a distinction can only be made on an after-the-fact, case-by-case basis.

The majority’s decision says, in effect, to the public: “We can’t define exactly what felony assault is but we know it when we see it.” The problem is that with this approach no citizen will ever know ahead of time whether by engaging in a simple barroom fight they are exposing themselves to charges of misdemeanor assault or felony assault. If a participant strikes someone with his fist, can he assume that he is committing a misdemeanor? On the other hand, if he wears a glove and commits the same act with no greater damage to the victim, is he then exposing himself to imprisonment for a period 20 times greater and a fine 100 times greater? Why would any rational person assume those facts to be true ahead of time?

Would striking someone with a hand constitute the use of a weapon? If so, then what kind of assault would ever rise to the level of a simple misdemeanor? Would it be a misdemeanor to strike someone with a hand, but a felony to strike someone with your foot? Would it be a misdemeanor to strike someone with a bare foot, but a felony to strike someone in the exact same way causing no greater harm when that same foot is covered with a lightweight pliable form of canvas? If so, why? And, what basis would the average citizen have for assuming these distinctions to be true?

In light of this decision, should there be a five-day waiting period and should backgrounds be checked before a person can purchase tennis shoes? Are tennis shoes protected by the Second Amendment? Can we look forward to a new round of slogans such as: “Tennis shoes don’t kill people. People kill people.” Should children be allowed to wear tennis shoes, or only adults?

The majority’s case-by-case, after-the-fact approach to distinguish between the commission of a misdemeanor and a felony is exactly what was prohibited by the United States Supreme Court in Bouie v. City of Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. In that case, several African-American citizens entered an all-white lunch counter in Columbia, South Carolina. There were no signs nor notices posted which prohibited their entry. However, they were not served and were asked to leave. They refused to do so and were charged with, among other things, criminal trespass. They were convicted of that offense and their conviction was affirmed by the South Carolina Supreme Court. The terms of the statute pursuant to which they were convicted prohibited “entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry ....” Bouie, 378 U.S. at 349-50, 84 S.Ct. at 1700. However, the South Carolina Supreme Court construed the statute to prohibit not only entry on the premises of another, but also the act of remaining on the premises of another after receiving notice to leave.

The defendants in that case appealed their conviction to the United States Supreme Court on the grounds that the statute did not provide fair warning to them that their conduct was a violation of the law and that when the South Carolina Supreme Court construed the statute as it did, they were punished for conduct that was not criminal at the time they committed it, and therefore, their rights under the Due Process Clause were violated. The Supreme Court agreed. It pointed out that:

The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by this Court. As was said in United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 812].

“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”

Thus we have struck down a state criminal statute under the Due Process Clause where it was not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., [(1926)], 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed 322], We have recognized in such cases that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law,” ibid., and that “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, [(1939)], 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888].

Bouie, 378 U.S. at 350-51, 84 S.Ct. at 1701 (footnote omitted).

The Supreme Court pointed out that the typical application of the vagueness doctrine was to situations where the language of the statute itself was either vague or over-broad. However, in language relevant to the situation in this case, the Court pointed out that a statute can be made vague by its judicial application. The Court held that it was equally objectionable from a constitutional standpoint when a statute “precise on its face” is “ ‘unforeseeably and retroactively expanded by judicial construction ....’ ” Bouie, 378 U.S. at 352, 84 S.Ct. at 1701-02. The Court stated that:

There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Corut recognized in Pierce v. United States, [(1941)], 314 U.S. 306, 311, [62 S.Ct. 237, 239-40, 86 L.Ed. 226], “judicial enlargement of a criminal Act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.”

Bouie, 378 U.S. at 352, 84 S.Ct. at 1702.

In fact, the Court pointed out that when coruts unforeseeably expand criminal liability, as the majority has done in this case by judicial interpretation, more than the Due Process Clause is offended. Such after-the-fact expansion of criminal liability also violates Article I, Section 10, of the United States Constitution which prohibits ex post facto laws. In that regard, the Supreme Court stated:

Indeed, an unforeseeable judicial enlargement of á criminal statute, applied retroactively, operates precisely like an ex post facto law, suchas Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Corut as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater than it was, when committed.” Calder v. Bull, [(1798)], 3 Dall. 386, 390 [1 L.Ed. 648]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, [(1931)], 283 U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264], The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. Id., at 61.

... When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court’s statement in Brinkerhoff-Faris [Trust & Sav. Co. v. Hill (1930), 281 U.S. 673, 678, 50 S.Ct. 451, 454, 74 L.Ed. 1107], that “if the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious,” and “The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid ... state statute.” Id., at 679-680, 50 S.Ct. at 454.

Bouie, 378 U.S. at 353-55, 84 S.Ct. at 1702-03 (footnote omitted).

Likewise, in this case, the majority’s decision was an unforeseeable enlargement of a criminal statute. It takes an act that any reasonable person would assume was a simple misdemeanor assault and makes it a felony punishable by ten years imprisonment based on a judicial decision rendered after the act occurred.

Had defendant and Darling engaged in a simple barroom fight during which Darling was kicked by defendant, but from which Darling’s injuries were no greater than they were in this case, defendant would never have been charged with felony assault, and this Court would never have affirmed a conviction for felony assault had he been so charged. This charge and this decision are simply the result of accusations that defendant committed other aggressive acts of a much more serious nature, but which were never proven and for which defendant was acquitted. This case is a classic example of bad facts resulting in bad law.

For these reasons, I would reverse the judgment of the District Court. I would, as the majority did, construe defendant’s post-trial motion as a motion for a new trial pursuant to § 46-16-702, MCA, and pursuant to that motion, I would modify the verdict by finding defendant guilty of the lesser included offense of misdemeanor assault in violation of § 45-5-201(l)(a), MCA, since I conclude there was sufficient evidence to sustain conviction for that offense.

JUSTICE HUNT joins in the foregoing dissent.