State v. Longneck

No. 90-426
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
EMIL LONGNECK,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Esq., Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; James
Yellowtail, Assistant Attorney General; Helena,
Montana
Harold Hanser, County Attorney; Charles A.
Bradley, Deputy County Attorney, Billings,
Montana
Submitted on Briefs: January 3, 1991
B
Decided: January 29, 1991
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Defendant Emil Longneck was convicted of negligent homicide
after a jury trial in the District Court of the Thirteenth Judicial
District, Yellowstone County. He appeals. We affirm.
The issue is whether the District Court properly enhanced
Longneck's sentence under 1 46-18-221, MCA, for the use of a gun.
On November 6, 1989, the body of Winchell Birdtail was found
lying in an alley on the south side of Billings, Montana. He had
been shot once in the head. His body had apparently been dragged
from a motor vehicle and placed in the alley. An autopsy revealed
that he had died in the late evening hours of November 5 or early
in the morning of November 6, 1989.
Witnesses at trial testified that Birdtail and the defendant
left the Arcade Bar in Billings at about 8:00 p.m., November 5, in
defendant's car. One witness testified that several days earlier,
defendant had stated that he was trying to obtain a gun. Another
testified that defendant told her he had a gun. After leaving the
Arcade Bar, defendant and Birdtail visited the homes of several
acquaintances, trying to borrow money to continue drinking. They
were both described as intoxicated at that time.
An acquaintance in whose basement defendant had been staying
testified that the defendant returned to his home alone about 10:00
or 10:30 p.m. The witness observed defendant wetting a rag on an
outdoor faucet and then "mess[ing] aroundw in the front seat of
defendant's car. ~uringthe police investigation, rags and pieces
2
of clothing stained with blood consistent with Birdtail's were
found in the yard and basement of that house. The front passenger
side of defendant's car was heavily bloodstained.
The defendant testified in his own behalf. He stated that he
and Birdtail were sitting in the car after their last attempt to
borrow money failed, and Birdtail indicated that he wanted to
commit a robbery to get money. He testified that when he refused
to go along with this, Birdtail produced a gun, they struggled over
the gun, and Birdtail was shot when it went off. Defendant
testified that, "scaredfnl had put Birdtail's body in an alley.
he
He testified that he did not know what had happened to the gun
because he had blacked out after the shooting.
Defendant was charged with deliberate homicide. The jury
found him guilty of the lesser included offense of negligent
homicide. He was sentenced to ten years in prison plus an
additional ten years, to run consecutively, for the use of a deadly
weapon in the commission of the offense, under 5 46-18-221, MCA.
Montana's weapon enhancement statute, 5 46-18-221, MCA,
provides that
[a] person who has been found guilty of any
offense and who, while engaged in the
commission of the offense, knowingly displayed,
brandished, or otherwise used a firearm,
destructive device, as defined in 45-8-332 (1),
or other dangerous weapon shall, in addition
to the punishment provided for the commission
of such offense be sentenced to a term of
imprisonment in the state prison of not less
than 2 years or more than 10 years, except as
provided in 46-18-222.
Defendant argues that the "knowingly" state of mind required under
S 46-18-221, MCA, has not been established and that application of
the weapon enhancement statute is therefore improper.
The weapon enhancement statute may be applied in a negligent
homicide. State v. Redfern (1987), 228 Mont. 311, 741 P.2d 1339;
State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; State v.
Hubbard (1982), 200 Mont. 106, 649 P.2d 1331. By its own terms,
the enhancement statute applies to "any offense.''
The defendant's testimony concerning the events surrounding
the shooting was that
I started back towards my door, and he told me
to wait. And he turned around and looked back
towards the back, and that's when I grabbed
for the gun.
Q. Okay. his was while you were parked
someplace on the south side?
A. Yes.
Q. All right. When you grabbed for the gun,
will you tell the jury what happened?
A. We struggled over it.
Q. Please continue.
A. And it went off, and he flew back - - or
I thought he jumped back at first, but I guess
he flew back from the bullet wound. The
bullet hit him.
The defendant's assertion that the shooting of Birdtail was
accidental does not negate his admission that he voluntarily
grabbed for the gun being held by Birdtail. We hold that, under
the facts of this case, defendant's voluntary act of grabbing for
the gun is sufficient to meet the wknowinglyll
requirement of the
enhancement statute.
Defendant's counsel states in his reply brief that he has been
instructed to bring to this Court's attention defendant's argument
that the evidence is insufficient to support his conviction.
Attached to the reply brief is a typewritten sheet containing
defendant's argument on that issue. Issues first raised in a reply
brief are not properly before this Court and will not be considered
on appeal. Rule 23 (c), M.R.App. P. ; Downs v. Smyk (1982), 200 Mont.
334, 336-37, 651 P.2d 1238, 1239, aff'd. after remand, 211 Mont.
374, 685 P.2d 347; Denend v. Bradford Roofing & Insulation (1985),
218 Mont. 505, 509, 710 P.2d 61, 63-64.
Affirmed.
/
A/
Chief Justice
We concur: