State v. Greywater

96-135
No. 96-135
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
THE STATE OF MONTANA,
Plaintiff and Respondent,
v.
CHRISTOPHER GREYWATER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowston,
The Honorable Maurice R. Colberg, Jr.,
Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender,
Helena, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Jennifer Anders, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, County Attorney; John Kennedy,
Deputy County Attorney, Billings, Montana
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Submitted on Briefs: November 14, 1996
Decided: January 2, 1997
Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
A jury in the Thirteenth Judicial District, Yellowstone
County, found Christopher Greywater guilty of robbery. Greywater
appeals. We affirm.
Greywater raises two issues on appeal.
1. Did the District Court err when it refused Greywaterþs
proposed instruction that theft is a lesser included offense of
robbery?
2. Did the District Court err when it refused to consider a
motion in limine to exclude an eyewitness identification of
Greywater?
FACTS
On April 3, 1995, at about midnight, Darrell Senner was parked
in downtown Billings, Montana. He was in town on business and had
$250 in his billfold, including two $100 bills. As Senner sat in
his van, a male wearing a black and gray sweater approached and
asked for a smoke. Senner responded that he did not smoke.
The man, later identified by Senner at trial as Christopher
Greywater, opened the van door and hit Senner in the head.
Greywater jumped on top of Senner and struck him on the head and
face. He then spit on Senner and yelled, "You know what the f---
I want." Senner handed Greywater his billfold. Greywater removed
the money and ran. Senner followed Greywater and two other men
down an alley. After emerging from the alley, Senner saw a police
car and approached the officer sitting inside.
Senner spoke with Billings Police Officer Sandra Leonard. He
described his assailant as a male Native American wearing a black
and gray sweater, accompanied by two other Native Americans.
Officer Leonard radioed dispatch with the description. After
Officer Leonard verified that Senner was staying at the War Bonnet
Inn, she left.
Billings Police Officer James Garten was dispatched to the
downtown area. There, he observed three men walking down the
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street near where the robbery had occurred. One was wearing a
black and gray sweater. Billings Police Officer Jeff Chartier also
noticed the same three men, one of whom was wearing a sweater
similar to that described by dispatch. The two officers stopped
their vehicles behind the three men, exited, drew their weapons,
and ordered the men to the ground. Christopher Greywater was later
identified as one of the three suspects. He was wearing a black
and gray sweater.
As Senner was driving to his motel, he observed several
handcuffed individuals lying facedown on the sidewalk. He
recognized one as wearing the sweater worn by the individual who
had robbed him.
The police conducted a pat-down search of Greywater. Inside
his pocket they found a large amount of cash, including a $100
bill. Two twelve packs of beer and a bag containing a bottle of
alcohol were lying next to him. Because the alcohol was unopened,
Officer Leonard suspected that it had been recently purchased. He
entered a nearby bar and spoke with James Steinmetz.
Steinmetz bartended at the Empire Bar on April 2 and 3, 1995.
He testified that at about closing time, Greywater entered the bar
and purchased a case of beer and a bottle of whiskey. Greywater
paid for the alcohol with a $100 bill, the only $100 bill Steinmetz
had seen that evening.
Steinmetz had seen Greywater inside the Empire Bar earlier
that evening. When Greywater entered after 1 a.m., Steinmetz
testified that Greywater was excited and in a much better mood than
he had been previously. After purchasing the alcohol, Greywater
and two other individuals left the bar in a hurry. Steinmetz
testified that the black and gray sweater, which the police seized
after Greywaterþs arrest, was of a similar color and design as the
one Greywater had been wearing when he entered the bar.
Greywater and the two other suspects were taken into custody,
placed in separate police cars, and driven to the War Bonnet Inn.
There, under a lighted canopy near the motel entrance, Officer
Gartner asked Senner if he recognized any of them. Senner looked
into the cars containing the other two suspects but made no
identification. He then looked into the third police car and
positively identified Greywater as the individual who had robbed
him.
Greywater was charged by information with robbery in violation
of 45-5-401(1)(a), MCA. He pleaded not guilty. Following a jury
trial, he was found guilty of robbery and sentenced to fifteen
years at the Montana State Prison. Greywater appeals.
DISCUSSION
1. Did the District Court err when it refused Greywaterþs
proposed instruction that theft is a lesser included offense of
robbery?
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During settlement of jury instructions, Greywater offered a
proposed instruction that misdemeanor theft is a lesser included
offense of robbery, citing 46-16-602, MCA (1989), as authority.
The State objected, citing State v. Kills On Top (1990), 243 Mont.
56, 793 P.2d 1273, and State v. Albrecht (1990), 242 Mont. 403, 791
P.2d 760. The District Court refused Greywaterþs proposed
instruction by applying the "same elements" test in Blockburger v.
United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306.
The court then gave the following instructions, offered by the
State and accepted without objection by Greywater, regarding the
offense of robbery:
Instruction No. 6
A person commits the offense of robbery (felony) if, in
the course of committing a theft he inflicts bodily
injury upon another.
Instruction No. 7
To convict the defendant of the charge of robbery
(felony), the State must prove the following elements:
1. That the defendant committed theft; and
2. That the defendant while so doing inflicted
bodily injury upon Douglas Senner; and
3. That the defendant acted purposely or knowingly.
. . .
Instruction No. 10
A person commits the offense of theft if he purposely or
knowingly obtains or exerts unauthorized control over
property of the owner, and has the purpose of depriving
the owner of the property.
Greywater asserts that the court erred as a matter of law when it
refused to instruct the jury that theft is a lesser included
offense of robbery.
A criminal defendant is entitled to a requested lesser
included offense instruction where, based on the evidence, the jury
rationally could be warranted in convicting on the lesser offense
and acquitting on the greater offense. Section 46-16-607(2), MCA;
State v. Smith (1996), 276 Mont. 434, 443, 916 P.2d 773, 778.
Therefore, we must first determine whether, as a matter of law,
theft is a lesser included offense of robbery. If so, we must then
determine whether Greywaterþs proposed jury instruction was
supported by the evidence. Smith, 916 P.2d at 778.
This Court has long employed the Blockburger test to determine
what constitutes a lesser included offense. The test provides:
[W]here the same act or transaction constitutes a
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violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of
a fact which the other does not . . . ."
Blockburger, 284 U.S. at 304. Iannelli v. United States (1975),
420 U.S. 770, 785 n. 17, 95 S. Ct. 1284, 1294 n. 17, 43 L. Ed. 2d 616,
627 n. 17, further explained the Blockburger test, stating:
If each requires proof of a fact that the other does not,
the Blockburger test is satisfied, notwithstanding a
substantial overlap in the proof offered to establish the
crimes.
Greywater argues that although this Court used the Blockburger
test in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, upon
which Albrecht and Kills On Top were decided, to determine that
theft is not a lesser included offense of robbery, that Madera
applies to double jeopardy issues, not to jury instructions. He
suggests that in the context of lesser included offense jury
instructions, the focus of the Blockburger test should not be
limited to a comparison of the statutory elements, but instead
should include an inquiry into the facts adduced at trial. We
disagree.
In Madera, the defendants were charged and convicted of both
felony theft and robbery. We held that prosecution for both
offenses did not violate double jeopardy, concluding that felony
theft was not a lesser included offense within the charge of
robbery under Blockburger because felony theft required proof that
the value of the property taken exceeded a certain dollar amount,
an element not required for robbery. Madera, 670 P.2d at 557-58.
In Albrecht, the defendant argued that the trial court erred
by refusing to instruct the jury that theft is a lesser included
offense of robbery. We recognized that Madera involved a double
jeopardy issue, not a jury instruction. Albrecht, 791 P.2d at 762.
However, we refused to deviate from the Blockburger test to
determine whether theft is a lesser included offense of robbery in
the context of jury instructions.
We have ruled that theft is not a lesser-included offense
of robbery, Madera, 670 P.2d at 558, albeit for different
reasoning . . . . Not only does theft require an
additional element of proof regarding value, our statutes
specify that commission of theft is not required for
commission of a robbery. Section 45-5-401, MCA, requires
only that the actor "be in the course of committing the
theft." Under the statute, in order for a robbery charge
to adhere, a person does not actually have to complete
the theft but only be in the course of committing the
theft.
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Albrecht, 791 P.2d at 763.
We also noted that the Criminal Law Commission Comments to
45-5-401, MCA, illustrate that theft is not a lesser included
offense of robbery:
Common-law robbery was theft of property from the person
or in the presence of the victim by force or by putting
him in fear either of immediate bodily injury or of
certain other grievous harms. [Section 45-5-401, MCA]
does not explicitly include the traditional basis for
classifying robbery as taking property from the person or
in the presence of a person, but approaches the crime as
one of immediate danger to the person and relies on the
condition of violence or threatened violence to distin-
guish the crime from ordinary theft. The gist of the
offense is taking by force or threat of force.
[Section 45-5-401, MCA] would apply where property was
not taken from the person or from his presence. For
example, an offender might threaten to shoot the victim
in order to compel him to telephone directions for the
disposition of property elsewhere. Further, it is
immaterial whether property is or is not obtained. This
seems compatible with the theory of treating robbery as
an offense against the person rather than against
property. Hence, a completed robbery may occur even
though the crime is interrupted before the accused
obtained the goods, or if the victim had no property to
hand over[.]
Albrecht, 791 P.2d at 763, citing Criminal Law Commission Comments,
45-5-401, MCA.
In Kills On Top, the defendant similarly claimed that theft
was a lesser included offense of robbery for purposes of jury
instructions. We disagreed and reiterated the holding of Albrecht.
Kills On Top, 793 P.2d at 1297.
Albrecht is consistent with numerous cases in which this Court
has employed the Blockburger test to determine whether one offense
is a lesser included offense of another in the context of jury
instructions. See State v. Steffes (1994), 269 Mont. 214, 887 P.2d
1196 (endangering the welfare of children and deviate sexual
conduct); State v. Fisch (1994), 266 Mont. 520, 881 P.2d 626
(negligent endangerment and aggravated assault); State v. Arlington
(1994), 265 Mont. 127, 875 P.2d 307 (felony assault and aggravated
assault); State v. Long (1986), 223 Mont. 502, 726 P.2d 1364
(misdemeanor assault and sexual assault); State v. Gray (1983), 207
Mont. 261, 673 P.2d 1262 (unsworn falsification and criminal
mischief); and State v. Ritchson (1981), 193 Mont. 112, 630 P.2d
234 (aggravated assault and robbery).
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This Court has previously focused on the statutory elements,
not the facts of a given case, to decide what constitutes a lesser
included offense for purposes of jury instructions. Steffes, 887
P.2d at 1207. We look to the statutory elements of the respective
crimes to determine if each offense requires proof of a fact which
the other does not to determine if there is a lesser included
offense. Madera, 670 P.2d at 558.
The offense of robbery is defined by 45-5-401(1)(a), MCA,
as follows: "(1) A person commits the offense of robbery if in the
course of committing a theft he: (a) inflicts bodily injury upon
another." The applicable elements of theft are: (1) purposely or
knowingly; (2) obtaining or exerting unauthorized control; (3) over
the property of the owner; (4) with the purpose of depriving the
owner of the property. Section 45-6-301(1)(a), MCA.
Robbery and theft each require proof of an additional fact
that the other does not. A conviction of robbery under 45-5-
401(1)(a), MCA, requires the infliction of bodily injury upon
another, but does not require the completed act of theft as an
element. Robbery requires that the person "be in the course of
committing the theft." Section 45-5-401, MCA. The offense of
theft requires proof of an additional fact--that the theft was
completed. Because robbery requires proof of at least one element
that is not needed to establish the offense of theft, theft is not
a lesser included offense of robbery. See Albrecht, 791 P.2d at
762-3.
Montana statutes, Criminal Law Commission Comments, and case
law support the District Courtþs conclusion that theft is not a
lesser included offense of robbery. We hold that the District
Court correctly instructed the jury on the law applicable to
Greywaterþs case and properly refused his proposed jury instruction
that theft is a lesser included offense of robbery. Because we so
hold, we do not address whether there was sufficient evidence for
a jury to convict Greywater of theft.
Greywater also argues that the Blockburger test used by the
District Court is inconsistent with the statutory definition of
"included offense" contained at 46-1-202(8), MCA. He claims that
the statutory definition of included offense is broader than the
Blockburger test.
When Greywater submitted his proposed jury instruction that
misdemeanor theft is a lesser included offense of robbery, he did
so under the purported authority of 46-16-602, MCA (1989). He
now argues that the District Court refused his proposed instruction
contrary to the statutory definition of "included offense"
contained at 46-1-202(8), MCA. Greywater did not offer his
proposed instruction pursuant to 46-1-202(8), MCA, at the
district court level. A party may not change his theory on appeal
from that advanced in the district court. Fisch, 881 P.2d at 629.
We decline to address the merits of this argument.
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2. Did the District Court err when it refused to consider a
motion in limine to exclude an eyewitness identification of
Greywater?
Five days before trial, the defense moved in limine to prevent
"introduction into evidence any testimony concerning eye witness
identification of the defendant," on the ground that such testimony
violated Greywaterþs Fifth Amendment due process rights. The
defense argued that Sennerþs identification was suggestive and
subject to possible misidentification.
On the day of trial, counsel discussed Greywaterþs motion in
limine. The State opposed the motion, arguing that it was
untimely. Greywaterþs public defender agreed, but asked the court
to excuse the delay for "good cause" because of his overwhelming
caseload and because Greywaterþs constitutional rights were at
stake. The court declined to consider the motion in limine because
it was untimely, citing State v. Hart (1982), 200 Mont. 185, 650
P.2d 768. The court also determined that the motion was covered
under 46-13-101, MCA, and found no good cause for it to be
raised.
In Hart, the defendant waited until the day of trial to orally
move to suppress police testimony concerning his pre-Miranda
statements. Section 46-13-301, MCA, required ten daysþ notice and
a written motion to suppress. The trial court denied the motion as
untimely. We affirmed, noting that the defendant was aware from
the time of his arrest that he had made damaging statements, but
did not move to suppress them until the day of trial after the jury
had been seated. Hart, 650 P.2d at 772.
Section 46-13-101, MCA, provides:
(1) Except for good cause shown, any defense, objection,
or request that is capable of determination without trial
of the general issue must be raised at or before the
omnibus hearing unless provided by Title 46.
(2) Failure of a party to raise defenses or objections
or to make requests that must be made prior to trial, at
the time set by the court, constitutes a waiver of the
defense, objection, or request.
(3) The court, for cause shown, may grant relief from
any waiver provided by this section[.]
The State argues that 46-13-101, MCA, required Greywaterþs
motion in limine to be raised at or before his omnibus hearing and
that the courtþs decision not to consider the untimely motion is
supported by Hart, 650 P.2d at 768. Greywater suggests that his
counselþs crowded trial calendar provided good cause for the court
to consider his otherwise untimely motion in limine. He argues
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that the courtþs refusal to consider his motion was an abuse of
discretion and limited his ability to pursue the identification
issue, his only available defense.
The standard of review for a denial of a motion to suppress is
whether the courtþs findings of fact are clearly erroneous, and
whether those findings were correctly applied as a matter of law.
State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021.
In this case, the District Court dismissed Greywaterþs motion in
limine as untimely and as lacking good cause. Therefore, we
determine whether the courtþs conclusions of law were correct as a
matter of law. Williams, 904 P.2d at 1021.
A motion in limine to prevent an in-court identification is
essentially a motion to suppress and must be filed within the time
limits imposed by 46-13-301, MCA (1989). See Hart, 650 P.2d at
771-72. We have consistently upheld a district court's denial of
a defendantþs untimely motion to suppress. State v. Hall (1979),
183 Mont. 511, 514, 600 P.2d 1180, 1182; State v. Briner (1977),
173 Mont. 185, 189-90, 567 P.2d 35, 37-38.
Hart, Hall, and Briner were decided under the previous version
of 46-13-301, MCA (1989) and 95-1806, RCM (1947), which
required notice of a motion to suppress to be given at least ten
days before trial, unless good cause was shown. In 1991, 46-13-
301, MCA, was amended to require a motion to suppress to be raised
at or before the omnibus hearing. See 1991 Mont. Laws, Ch. 800,
168, 173. The purpose of the omnibus hearing is to encourage
parties to "expedite the procedures leading up to the trial."
Section 46-13-110(2), MCA. The holdings of Hart, Hall, and Briner,
as applied to the good cause exception of 46-13-301, MCA (1989)
and 95-1806, RCM (1947), are equally applicable to the good cause
exception contained at 46-13-101, MCA.
Greywaterþs omnibus hearing occurred over three months prior
to trial. At the omnibus hearing, neither party indicated that
identification would be a trial issue. Greywaterþs omnibus form is
marked "n/a" (not applicable) in response to "Motions Requiring
Separate Hearing." On the day of trial, the judge explained to
both parties that he had tried to contact them the week before to
determine if there were "any significant issues related to this
case." When the judge called the public defenderþs office, he was
informed by one of the attorneys who had worked on the case in part
that "it would be a short trial and there are no major issues that
I know about." We conclude that the trial judge properly refused
to consider the public defenderþs busy caseload as good cause.
Greywater was aware from the time of his arrest that the
Stateþs case relied in part on Sennerþs identification of him in
the motel parking lot. Nevertheless, he did not submit his motion
in limine until October 5, 1995, nearly six months after he was
charged with robbery, and five days before trial.
Greywater did not comply with 46-13-101, MCA, and cannot
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demonstrate good cause for his untimely motion. Given the
requirements of 46-13-101, MCA, the case law interpreting its
predecessor statutes, and the overall purpose of the omnibus
hearing, the District Court correctly determined as a matter of law
that Greywaterþs motion in limine was untimely and was not subject
to a good cause exception. We hold that the District Court
properly refused to consider Greywaterþs motion in limine.
Affirmed.
/S/ J. A. TURNAGE
We concur:
/S/ CHARLES E. ERDMANN
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
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