STATE v ORSBORN
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No. 13334 I N THE SUPREME COURT O THE STI-TE OF M N A A F OTN 1976 STATE O MONTANA, F P l a i n t i f f and Respondent, -VS - CARL LEO ORSBORN, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e E l e v e n t h J u d i c i a l D i s t r i c t , Honorable R o b e r t S. K e l l e r , Judge p r e s i d i n g . Counsel o f Record : For Appellant: Fennessy, Crocker and Harman, Libby, Montana David Id. Harman a r g u e d , Libby, Montana F o r Respondent : Eon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana John North, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana W i l l i a m A. Douglas, County A t t o r n e y , a r g u e d , Libby, Montana August 30, 1976 Submitted: Decided: F i l e d : :". P %- -. Lr) 3 xi r- ':A- M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e Court. Defendant a p p e a l s from h i s c o n v i c t i o n of one count of aggravated a s s a u l t and t h e 20 year sentence imposed by t h e d i s t r i c t c o u r t , Lincoln County. The record r e v e a l s t h i s sequence of e v e n t s : On August 12, 1974 defendant C a r l Leo Orsborn began a lengthy p e r i o d of d r i n k i n g by consuming a d r i n k s h o r t l y a f t e r a r i s i n g a t about 6:00 a.m. L a t e r i n t h e morning he had a d r i n k w i t h a f r i e n d . A t approxi- mately 1:00 p.m. he e n t e r e d t h e Mine Lounge i n Libby, Montana and had s e v e r a l d r i n k s i n c l u d i n g one w i t h a f e l l o w p a t r o n , Charles A. Lowder. A f t e r d r i n k i n g most of t h e day Orsborn encountered J e s s e F i r s t Raised and t h e y went t o t h e Mine Lounge t o c l o s e o u t t h e day of d r i n k i n g . Lowder was s t i l l a t t h e b a r q u i t e i n t o x i c a t e d and t h e barmaid pursuaded Orsborn and F i r s t Raised t o g e t him o u t of t h e b a r s o s h e could c l o s e up. They p u t Lowder i n Orsborn's c a r and a f t e r d r i v i n g around f o r sometime t h e y parked a t a g r a v e l p i t l o c a t e d o u t of town. The testimony i s i n c o n f l i c t a s t o whether o r n o t t h e two men were going t o " r o l l " Lowder b u t t h e r e was no q u e s t i o n t h a t some kind of f r a c a s occurred a t t h e g r a v e l pit and Lowder w a s h i t by a rock thrown by Orsborn. A f t e r t h i s i n c i d e n t , Orsborn and F i r s t Raised g o t back i n t h e c a r and continued d r i v i n g u n t i l they encountered Thomas A. M i l l e r who was parked along t h e r o a d s i d e w i t h a f l a t t i r e . They stopped and g o t a t i r e i r o n o u t of t h e t r u n k of Orsborn's c a r t o f i x the f l a t t i r e . What happened n e x t i s s u b j e c t t o c o n f l i c t i n g testimony. F i r s t Raised t e s t i f i e d Orsborn struck M i l l e r w i t h a pulaski (an axe-hoe combination tool). Miller testified Orsborn swung down with something. Orsborn testified he did not attack Miller. At any rate, Miller suffered bruises to his neck and shoulder. Based on these two incidents, an Information was filed in district court on August 15, 1974, charging Carl Leo Orsborn with two counts of aggravated assault in violation of section 94-5-202, R.C.M. 1947. Count I charged defendant with aggravated assault by purposely or knowingly causing bodily injury to Charles Albert Lowder by means of a weapon. A. Miller. Count 11 charged the same as to Tom Trial was had on October 16, 1974, with Jesse First Raised appearing as a witness for the state having been granted immunity from prosecution for any role he had in the incidents, The jury after retiring to consider a verdict reported it was deadlocked, whereupon the court declared the matter a mistrial. On November 12, 1974, a motion to sever the two counts and request for separate trials was made by defendant. This motion was subsequently denied. Defendant was again tried on the two counts of aggravated assault on December 2, 1974. At the close of the state's case, defendant's motion to dismiss Count I was denied. On settling jury instructions, the court refused defendant's proposed Instruction No. 2, covering the lesser included offense of assault, section 94-5-201, R.C.M. 1947. The jury found defendant not guilty on Count I and guilty on Count 11. Following the verdict, a presentence investigative report was filed and on December 26, 1974, a presentence hearing held. Defendant was sentenced to 20 years in the Montana State Prison. Defendant appeals from the judgment and sentence. These issues are presented for review: 1. Whether the sentencing judge may receive and adopt information from sources other than the testimony of witnesses in open court? 2. Whether the Montana Youth Court Act applies to the facts pertaining to sentencing in this case? 3. Whether the district court erred in refusing to give defendant's proposed Instruction No. 2, covering the lesser included offense of assault? 4 Whether the district court erred in refusing to grant . defendant% motion for separate trials on separate counts? 5. Whether the district court erred in refusing to grant defendant's motion to dismiss Count I at the end of the state's case. Issue 1. Defendant contends his constitutional right to confront the witnesses against him was violated by the proceedings at the presentence hearing. United States Constitution, sixth and Fourteenth Amendments; Article 11, Section 24, 1972 Montana Constitution. In support defendant cites Kuhl v. District Court, 139 Mont. 536, 568, 366 P.2d 347. The specific portion of the presentence hearing which defendant objects to is what occurred after defendant gave facts in mitigation of sentence. (We note here that a copy of the presentence report was furnished defendant and his counsel). At this point the trial .judge said: "This pre-sentence investigation report is silent with respect to running off to Texas with your younger brother and some girl. I am aware of that. I am satisfied you are aware of that. But I am not satisfied that the report shows that I am aware of it. And it is the kind of a thing that I think you should have an opportunity to explain if you want to, because it certainly is all black in the Court's mind." In answer defendant, represented by counsel, admitted the occurrence to be true. He made no statement in mitigation of the facts the trial judge referred to. We find no constitutional violation. Our examination af.Kuh1, in relation to present Montana ~ statutory law and relevant federal case law, leads to the conclusion that under the circumstances of this case defendant received due process at the presentence hearing. Kuhl In -we note this statement by the Court: "* * * However, keeping in view, as we must, the provisions of sections 94-7813 and 94-7814, supra, the question arises: Was the trial judge authorized to disregard the mandates of the two-last mentioned sections and to proceed to pass sentence upon the defendant Kuhl without giving him or his counsel an opportunity to learn or know any of the circumstances set forth in the investigator's report and without giving either the defendant or his counsel an opportunity to rebut or refute any of the representations therein contained?" (Emphasis supplied.) Section 94-7813, R.C.M 1947, referred to in Kuhl provided that the sentencing court in its discretion could hear circumstances in aggravation or mitigation of sentence. 7814, R.C.M. 1947, provided that such "* * Section 94- *circumstances must be presented by the testimony of witnesses examined in open court ** *.I1 - However, subsequent to Kuhl these statutory sections were repealed. Sections 95-2203 and 95-2204, R.C.M. 1947, now require that presentence information in mitigation or aggravation of punishment be made available to the sentencing judge where conviction may result in commitment of one year or longer. Section 95-2205, R.C.M. 1947, the present applicable statute pertaining to sources of sentencing information, reads: "* * * If the court discloses the identity of persons who prozded information, the judge may, in his discretion, allow the defendant to cross-examine those who rendered the information. * *" (Emphasis supplied.) * There is no lack of due process where the trial judge brings to the attention of defendant facts he knows, that defendant knows he knows, and gives defendant an opportunity to explain them in a mitigation procedure, as in the instant case. Under section 95-2205, the right of cross-examination in a presentence hearing is a discretionary matter of the trial court. Such a change in policy is reflective of the trend towards distinguishing evidential procedure at trial from that at the sentencing stage. The United States Supreme Court in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L ed 1337, 1342, stated: "* * * A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest in£ormation possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial * * *." (Emphasis supplied.) - However, this does not mean that the spirit of Kuhl is dead. A . . convicted defendant still has a due process guarantee against a sentence predicated on misinformation. The real question before us then is whether defendant received that protection. Here: (1) Defendant was represented by counsel at the time the sentencing information was made known to him. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L ed 1690; Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L ed 2d 336; United States v. Hone, (2) He had the opportunity to rebut the information. United States v. Espinoza, 481 F.2d 553; United States v. Huff, 512 F.2d 66. (3) Defendant chose to affirm the accuracy of the information. United States v. Horsley, 519 F.2d 1264; United States v. Brown, 479 F.2d 1170; State v. Mann, - . Mont , 546 P.2d 515, 33 St. Rep. 278. Thus, any danger of utilizing misinformation in sentencing was thus averted by the trial judge. Issue 2. Defendant contends that the source of the presentence information was his juvenile record. Since defendant had reached the age of majority, its use in sentencing without his consent or upon court petition is claimed to be prejudicial error under the terms of the Montana Youth Court Act, Title 10, Chapter 12, R.C.M. 1947. The record, including the presentence investigative report, reveals no indication of a juvenile record on the part of defendant or that he was ever under the jurisdiction of the Youth Court. We find no merit in defendant's second issue. Issue 3. Defendant argues the use of a weapon was not sufficiently established under Count I1 of the Information, thus the district court erred in not giving defendant's proposed Instruction No. 2 on the lesser included offense of assault. Specifically defendant contends that since Jesse First Raised could have been charged with accountability pursuant to sections 94-2-106 and 94-2-107, R.C.M. 1947, for his part in the Tom Miller incident, any testimony he gave as to the use of a weapon in that incident required independent corroboration under section 95-3012, R.C.M. 1947. Defendant claims the state failed to supply the necessary corroboration. The s t a t e , while not d i s p u t i n g t h e need f o r corroboration due t o t h e f a c t t h a t F i r s t Raised had been granted immunity from prosecution i n exchange f o r h i s t e s t i mony, t a k e s t h e p o s i t i o n t h a t t h e use of a weapon by defendant a g a i n s t M i l l e r was s u f f i c i e n t l y corroborated. The i s s u e then becomes---What kind of evidence i s s u f f i c i e n t t o corroborate t h e testimony of one l e g a l l y accountable? 95-3012, R.C.M. Section 1947, s t a t e s : "A conviction cannot be had on t h e testimony of one responsible o r l e g a l l y accountable f o r t h e same o f f e n s e , a s defined i n s e c t i o n 94-2-106, unless he i s corroborated by o t h e r evidence, which i n i t s e l f , and without t h e a i d of t h e testimony of t h e one responsible o r l e g a l l y accountable f o r t h e same offense, tends t o connect t h e defendant w i t h t h e commission of t h e offense; and t h e corroboration i s not s u f f i c i e n t , i t merely shows t h e commission of t h e o f f e n s e , o r t h e circumstances thereof." S t a t e v. Cobb, 76 Mont. 89, 92, 245 P. 265, has been c i t e d many times Bs t o - t h e general g u i d e l i n e s f o r determining t h e s u f f i - ciency of evidence corroborating t h e testimony of one l e g a l l y accountable. - Though Cobb was decided under s e c t i o n 11988, R.C.M. 1921, s i n c e repealed, t h e language of t h e o l d s t a t u t e i s n e a r l y i d e n t i c a l t o t h a t of s e c t i o n 95-3012, R.C.M. part. 1947, i n p e r t i n e n t - W n o t e t h e s e g u i d e l i n e s from Cobb: e " ( a ) The corroborating evidence may be supplied by t h e defendant o r h i s witnesses. "(b) It need n o t be d i r e c t evidence--it may be circumstantial. " ( e ) It need n o t be s u f f i c i e n t t o connect t h e defendant with commission of t h e crime; i t i s s u f f i c i e n t - i f i t tends t o do so. " ( f ) Whether t h e corroborating evidence tends t o connect t h e defendant with t h e commission of t h e offense i s a question of law, b u t t h e weight of t h e i s a matter f o r t h e c o n s i d e r a t i o n of evidence t h e jury." (Emphasis supplied.) , *** The testimony concerning t h e a s s a u l t on M i l l e r i s undisputed on t h e s e f a c t s : F i r s t Raised's testimony t h a t defendant f o r no reason s t r u c k M i l l e r with a p u l a s k i b u t f o r t u n a t e l y M i l l e r saw o r heard t h e a c t i o n and moved s o t h a t he was only s t r u c k i n t h e shoulder and neck. The blow stunned Miller b u t he was a b l e t o recover enough t o run away, chased a s h o r t time by defendant c a r r y i n g t h e pulaski. M i l l e r saw enough t o t e s t i f y i t was de- fendant, "not t h e Indian" who swung on him. Defendant and F i r s t Raised immediately f l e d t h e a r e a and went t o Idaho. F i r s t Raised t e s t i f i e d he had t h e p u l a s k i on t h e t r i p t o Idaho and threw i t out of t h e c a r somewhere between Libby and P r i e s t River, Idaho. W hold t h a t such c i r c u m s t a n t i a l evidence tends t o connect dee fendant with t h e use of a weapon i n t h e a t t a c k on Miller. See: S t a t e v. Spielmann, 163 Mont. 199, 516 P.2d 617; S t a t e v. Dess, 154 Mont. 231, 462 P.2d 186; 30 Am J u r 2d Evidence, 5 1153. Therefore, t h e d i s t r i c t c o u r t did not err r e f u s i n g defendant ' s proposed I n s t r u c t i o n No. 2 on t h e l e s s e r included o f f e n s e of simple a s s a u l t . Spielmann, supra; S t a t e v. Perry, 161Mont. 155, 505 P.2d 113, Issue 4; , Defendant a l l e g e s t h e d i s t r i c t c o u r t committed r e v e r s i b l e e r r o r i n f a i l i n g t o g r a n t defendant's motion f o r s e p a r a t e t r i a l s on s e p a r a t e counts of aggravated a s s a u l t . Though con- ceding t h a t two offenses of t h e same c l a s s may be joined pursuant t o s e c t i o n 95-1504(a), R.C.M. 1947, defendant notes t h a t t h e s t a t u t e on joinder of offenses f u r t h e r provides a t s e c t i o n 951504(c), R.C.M. 1947: *** " I f i t appears t h a t a defendant i s prejudiced by a joinder of s e p a r a t e charges the court o r provide any o t h e r may o r d e r s e p a r a t e t r i a l s re1 i e f a s j u s t i c e may require." *** *** *** W f i n d no e r r o r due t o t h e f a c t defendant had s e p a r a t e e and d i s t i n c t defenses t o t h e two counts. He plead s e l f - defense t o t h e f i r s t count and t h e jury must have believed him f o r a t the second t r i a l he was a c q u i t t e d . A s t o Count 11, he denied t h e a s s a u l t a l l e g i n g t h a t F i r s t Raised was g u i l t y . Section 95-1504(c) i s s i m i l a r t o Rule 14, Federal Rules of Criminal Procedure, and f o r t h i s reason we have examined f e d e r a l case law on t h e p o t e n t i a l i t i e s of p r e j u d i c e r e s u l t i n g from t h e j o i n d e r of two crimes of t h e same c l a s s . Federal c o u r t s have found t h r e e b a s i c kinds of p r e j u d i c e t h a t may occur upon t h e joinder of s i m i l a r offenses. Wright, 1 Fed.Pract. & Proc., Criminal, 222, p. 437. F i r s t , .the j u r y may consider defendant who i s s u b j e c t t o The p r e j u d i c e claimed i s t h a t m u l t i p l e :charges to-,be .a bad man. t h e j u r y may tend t o accumulate evidence a g a i n s t him u n t i l i t f i n d s him g u i l t y of something. However, our examination of f e d e r a l cases r e v e a l s t h a t such a claim of p r e j u d i c e r a r e l y has been found s u f f i c i e n t t o provide r e l i e f . 356 F.2d 680, cert.den. See: 385 U.S. Johnson v. United S t a t e s , 857, 87 S.Ct. 84; Pumrnill v. United S t a t e s , 297 F.2d 34. a claim of p r e j u d i c e s u f f i c i e n t here. 105, 1 7 L ed 2d W do n o t f i n d such e The burden of showing p r e j u d i c e i s on defendant and here he f a i l e d t o make such a showing. Second, proof of g u i l t of one offense may be used t o convict t h e defendant of another offense even though such proof may be inadmissible a t a s e p a r a t e t r i a l . However, where, a s h e r e , t h e a l l e g e d f a c t of t h e s e p a r a t e offenses was s u f f i c i e n t l y d i s t i n c t t o allow t h e j u r o r s t o keep them s e p a r a t e i n t h e i r minds, no prejudice w i l l be found. See: Drew v. United S t a t e s , 331 E.2d 85; Robinson v. United S t a t e s , 459 F.2d 847; United S t a t e s v. Kellerman, 432 F.2d 371. - 10 - Third, prejudice may r e s u l t where t h e defendant wishes t o t e s t i f y on h i s own behalf on one charge b u t not on t h e o t h e r . But w e note f e d e r a l c o u r t s have only considered such a claim of p r e j u d i c e where t h e a l l e g e d offenses were t o t a l l y s e p a r a t e a s t o time, place and evidence. See: Cross v. United S t a t e s , 335 F.2d 987; United S t a t e s v. Lee, 428 F.2d 917; Holmes v. Gray, 526 F.2d 622. The f a c t u a l circumstances of t h e i n s t a n t case do n o t lend themselves t o a claim of t h i s type of prejudice. For t h e reasons s e t f o r t h , we f a i l t o f i n d any p r e j u d i c e r e s u l t i n g t o defendant from t h e joinder of t h e two counts of aggravated a s s a u l t . I s s u e 5. Defendant contends t h e d i s t r i c t c o u r t e r r e d i n , f a i l i n g t o dismiss Count I of t h e Information a t t h e end of t h e s t a t e ' s case. He c i t e s two reasons f o r t h i s p o s i t i o n . First, t h e evidence on Count I was i n s u f f i c i e n t t o support a g u i l t y v e r d i c t , and second, t h e c o u r t was under a continuing duty t o p r o t e c t t h e defendant from p r e j u d i c i a l j o i n d e r of s e p a r a t e offenses. W simply say t h a t i n view of t h i s Court's p o s i t i o n e on j o i n d e r of t h e two offenses i n t h i s c a s e , and t h e f a c t defendant was found n o t g u i l t y on Count I , no p r e j u d i c e t o defendant was demonstrated. The judgment of t h e t r i a l c o u r t i s affirmed. m We Concur: Justices 6
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