*1
MONTANA,
STATE OF
Rеspondent,
Plaintiff
v.
Appellant.
HUBBARD, Defendant
JOHN ALDIN
No. 81-482.
23,
Submitted June
1982.
Aug.
Decided
1982.
Shea,
Dissenting Opinion
Sept.
of Justice
Sandra appellant. Asst. Gen., argued, McCarter Dorothy Greely, Atty.
Mike Bourdeau, County Atty., Great Gen., Helena, J. Fred Atty. Falls, respondent. plaintiff opinion delivered the HASWELL
MR. CHIEF JUSTICE of the Court. plead agreement, plea bargain
Pursuant to a The District homicide. to the crime of guilty *3 of ten consecutive terms to Court sentenced defendant years five homicide and negligent for years imprisonment crime. committing weapon use of a for the sentence. appeals from the Defendant before case has come time defendant’s This is the second in a Great shootout early morning an Following this Court. killed, defendant two men were court in which Falls trailer mitigated of tried and convicted another were Hubbard and We reversed respectively. burglary, and deliberate homicide State trial. for a new and remanded Hubbard’s conviction et al. St.Rep. 2065. v. Fish (1980), Mont., P.2d substi- D. was remand, Jack Shanstrom On the Honorable was An information amended presiding judge. as the tuted A homicide. written negligent charging Hubbard with filed defen- filed wherein signed and plea bargain agreement homi- negligent of to the crime plead guilty to agreed dant en- the statute possibility acknowledged cide might in that crime weapon penalty for use of hancing the applied to him. wherein defendant 14, 1981, was held May hearing On crime; testified to state of ex- mind at the time of pert du- witnesses testified that defendant was under some time; at ress a deputy and friends and sheriff testified concerning еvents that occurred on the of the crime. night Additionally, psychiatrist Prison the Montana State diagnosis testified that his 1979 of defendant as antisocial was inaccurate. day a in- following sentencing held hearing was which testimony by probation
cluded the district of- parole ficer, a clinical mother and de- psychologist, defendant’s Following fendant himself. hearing Judge Shanstrom ruled that the enhancement statute applied negligent exceptions homicide and that none of ap- to the statute plied. He sentenced the defendant consecutive terms of years ten imprisonment for five negligent homicide and years weapon for the use of a ap- in that crime. Defendant peals from this raising specifications sentence the following of error:
(1) Does the penalty of a enhancing use weapon in the commission of apply a crime homicide?
(2) Was defendant denied due process neg- inclusion of ligent homicide the enhancement statute?
(3) Does the record show that defendant wаs under acting application unusual and precluding substantial duress the enhancement statute?
(4) Was sentencing error in ad- committed mitting testimony amounting original retrial charge deliberate homicide sentencing defendant incomplete transcript? reading trial (5) Was diagnosis the 1979 of de- prejudiced fendant as antisocial which was later retracted?
(6) Does justice require five-year to be enhancement consecutively concurrently? served rather than The statutes issue in this are set case out below: “46-18-221. Additional sentence committed for offenses dangerous with a (1) weapon. A who has been found in the commis- who, engaged and while any offense guilty brandished, offense, knowingly displayed, of the sion device, as defined firearm, used a destructive otherwise shall, in addition to weapon 45-8-332(1), dangerous or other of- of such for the commission provided punishment in the state imprisonment fense, to a term of be sentenced years, except more than 10 years or prison of not less than provided 46-18-222. by this section “(4) рrescribed An additional sentence for the provided consecutively to the sentence shall run offense. sentences mandatory minimum Exceptions
“46-18-222. ex- suspended imposition restrictions on deferred minimum sentences sentence. mandatory All ecution of and the restrictions the laws of this state prescribed by of sentence execution suspended imposition deferred apply if: ... do not
<< of the
“(3) defendant, the commission time of at the sentenced, acting under which he is to be offense for duress, such duress аs although not and substantial unusual prosecution;” to the constitute a defense would is- second the first and discussion of We will combine our Appellant contends interrelationship. of their sues because demon- (1) the above statutes history of legislative (not crimes to include violent intent legislative strates a (2) homicide) legislation, the ambit within negligent crimes result-oriented to exclude legislative is intent there homicide, and intentionally negligent like committed 46-18-221(1) (3) requires that since section used to enhance firearm, cannot be knowingly used it is specific intent homicide where sentence for due procedural violates defendant’s and to do so required process rights. statute, legislature intent of construing
In v. Anaconda Dunphy MCA; 1-2-102, controlling. Section *5 Co. 660, 151 Mont. 438 P.2d and cases cited therein. The legislature intention of the must first deter- plain used, mined from the if in- meaning of the words terpretation of the statute can be so determined the courts may go apply any interpre- further and other of means Co., v. Anaconda Dunphy tation. supra, and cases cited Where, here, as plain, therein. of language the statute is unambiguous, certain, direct speaks statute it- State self and there is left nothing for the court to construe. v. Roberts (1980), Mont., 633 P.2d St.Rep. plainly says statute person that “a who has been found any guilty of engaged and while in the commission offense” knowingly offense uses a firearm subject is to an en- penalty years. hanced of ten two to is simply There rea- son for the of legislative history use to construe a statute where languagе is clear and face. unambiguous its Nor do any we see “knowingly” conflict between the required mental state by the enhancement statute and the “negligently” mental state as it applies negligent homi- Negligent cide. homicide is defined follows: “Negligent homicide. (1) Criminal homicide constitutes negligently.” homicide it when is committed Sec- 45-5-104, tion MCA.
“Negligently” is as: defined —
“(37) ‘Negligently’ person negligently a acts with re- spect ato result or to a circumstance described a statute defining an consciously offense when he a risk disregards that the result will оccur or that the circumstance exists or when he a of he disregards risk which should be aware that the result will occur that the circumstance exists. The risk must disregard be of such a nature degree it involves a gross deviation from the standard of conduct person that a reasonable would observe in the actor’s situa- tion. ‘Gross deviation’ means a is considera- deviation that bly greater than lack such ordinary of care. Relevant terms as ‘negligent’ and ‘with have mean- negligence’ the same 45-2-101(37), ing.” Section MCA. is dеfined as:
“Knowingly” — “(33) knowingly respect acts with ‘Knowingly’ person by a de- to conduct or to a circumstance described fining an when he is aware of his conduct or offense re- person knowingly exists. A acts with the circumstance a statute defin- spect to the result conduct described highly probable he ing an offense when is aware that it that such result will be caused conduct. When knowl- is an element of an edge particular the existence fact offense, if is aware knowledge such is established *6 such high probability Equivalent of a of its existence. terms knowledge’ meaning.” or ‘with have the same ‘knowing’ 45-2-101(33), Section MCA. person negli
A use a fir earn and still be knowingly can of a by grossly from the conduct reasonable gent deviating in similar with results regard situation See, State Pierce (1982), Mont.57, v. 199 647 actions. There St.Rep. P.2d 39 is no conflict between 1205. these two statutes. process arguments per
We do not find due appellant’s applies much of was said to this suasive and what above We held that previously contention also. have v. State Dаvison process rights. does not offend due Mont., St.Rep. Appellant cited P.2d has directly in chal authority point no his constitutional lenge. We statute uncon decline hold enhancement stitutional this basis. issue, regard appellant
With contends that the to the third facts that was unusual and sub- indicate defendant under 46-18-222(3), meaning stantial duress within the of section MCA, Appellant to the enhancement statute. exception homi- argues that verdict of deliberate jury mitigated (which stress,” requires cide “extreme mental or emotional MCA) 45-5-103, ar- Appellant this also section bears out. was under following facts indicate defendant gues just had seen his requisite amount of duress: defendant himself, gun shot, friend been had had a had shot face, pointed in his and had gun away wrestled the from its owner. although District Court found that there was a in case,
“certain amount duress” this it was not “unusual substantial,” 46-18-222, triggering section MCA. There was sufficient evidence the record to District support determination, uphold Court’s we it here. The District Court made the following statement regard, ad dressеd to the defendant: your
“By you only own admission intended him. ‘wing’ said, You I ‘He shot Dale so him.’ shot And then the state- you only ment made that you shot to him. wound Then statement, make the ‘Nobody sticks a gun my face and gets away And, with it.’ ‘He deserves to die—he doesn’t de- friend, serve to ‘He my live.’ killed so I think killed him.’ I statements, among others, all these an in- indicate to get direct, force, tent even physical the use of weapon.”
The defendant also the presence tempora- had of mind to rily incapacitate the owner of thе him gun kicking groin. Finally, running shot and killed a man from away him posed who him. immediate threat These facts do not indicate unusual or substantial duress *7 but rather revengeful a part, attitude on defendant’s seek- ing to make the killer for “pay” shooting his friend. There was no abuse by of discretion the District Court in rul- so State v. Metz ing. Mont., St.Rep. 604 P.2d
Next, appellant sentencing argues judge the erred by admitting testimony which amounted to a retrial on the charge deliberate homicide and read the entire failing to transcript. trial We will of his con part address the latter tention first. The judges District Court of this state are bur heavy with dened case loads as it is. We loathe hold are to judge every that the failure of a read word District Court of transcript a trial mandates reversal. any
Nor do we find error in the admission of testi- mony by hearing held the District Such a as was Court. required by provides MCA, 46-18-223, is which here section part: in (1)
“Hearing application exceptions. to determine exception application provided for 46-18- When the grant issue, a hear- 222 is an the сourt shall the defendant ap- prior imposition ing determine the of sentence to the exception.” plicability of the operating whether was under
To determine the defendant duress, nec- unusual the District Court must substantial or shootings. essarily leading up to the fatal consider the facts especially judge not the This is true here since the trial was sentencing judge.
Appellant’s fifth whether the defen issue involves respect wrongful diagnosis prejudiced with dant report. presentence Prison on the Montana Stаte officials prepared point psychiatrist who This is raised because (wherein presentence report diagnosed the he antisocial) May being 14, 1981 testified at the defendant as Appellant hearing diagnosis claims that his was inaccurate. report because the District Court considered this error sentencing Appellant us to follow refers the defendant. May ing language in the order of 1981: court’s arguments having Court, oral “The and considered heard testimony presented together and evidenсe with all reports, sentencing presentence hearing, at the the various diagnostic the Montana State Prison evaluation from transcripts, fully (Emphasis being . .” advised. added.) authority
Appellant assertion, cited this novel has for sentencing psychia- reject heard the and we it. testify regarding diagnosis, there his mistaken trist testimony. The he not abide no indication that did report is not the court’s order mere reference to ground sufficient for reversal. alleges
Appellant’s District error final contention yeаrs requiring run five the additional Court’s sentence *8 consecutively, rather than the concurrently. pre- Although sent requires that sentence run consecutively (section 46-18-221(4), MCA, supra), defen- time this dant require was sentenced court had discretion to However, enhanced sentence to run concurrently. goes this equity of the sentence rather than legality its should be to the directed Sentence Review Board not Metz, Court, State v. supra. Appellant take up should these concerns with the appropriatе authority.
Affirmed.
MR. HARRISON, WEBER, JUSTICES SHEEHY and MORRISON, concur.
MR. DALY dissenting: JUSTICE I am but, not easily moved “Qui to dissent fortiter — emungit, elicit sanguinem” “He who wrings the nose strongly brings XXX, blood.” Proverbs 33. My nose has been strongly I wrung. am not unmindful of the close and constant However, interaction between “facts” and “law.” any judicial deception that exists is likely apply more the facts rather than the law.
I have labored with facts of this when I case since 1978 received the assignment to examine a District Court denial of bail My to defendant produced Hubbard. examination young man, etc., nоrmal employed, previous record. In short, personal nothing against record would militate bail. This agreed, reasonable we bail. Court arid set
Thereafter, 1980,1 State v. Fish and Hub- assigned was bard trial. State v. Fish and Hubbard appeal after (1980), Mont., 621 P.2d St.Rep.
The authorities at the took an unusu- level District Court strong ally stand against these defendants which not I authored an with a supported by opinion the trial record. unanimous Court and, among set things, other facts straight based on the trial transcript. A gets feel- ing reading a trial where transcript, there insufficient evi- conviction, dence perhaps to sustain a are things done This process play. are due fair compatible with admonish the lo- quietly moved the Court in its reversal *9 officials, do it again.” cal “don’t of District Court created handling The this matter the of to restoration appearance sordid mess with the an effort ap- our reversal on quo prior of the status that existed to from a bro- So, procedure that resulted peal. the sentence ap- has been plea bargain ken and the unusual sentence to Court. pealed again this presume have majority opinion
The the that facts are outrageously They are inaccurate. examined this matter ap- to produce limited such a manner as an slanted and criminality guilt upon pearance purposeful of extreme all This is in direct the of facts the defendant. defiance the they transcript the record of found to be from were trial! found portion appeal of the decision
I will
small
quotе
part
This
of the discussion
reported
The problem that Shanstrom has is that he is Judge trying give the maximum terms of sentence on a minimum record guided by and refused to consult our I appeal opinion case. which insist the law the simply
The facts stated are that defendant Hubbard’s may judgment faulty initially by permitting have been persuade sister to him to join group, “to make sure fight.” there is a fair eventually This led him to the trailer park problems Nevertheless, and the found there. he was “bystander.” indicates, trial record As the trial record armed, none the young people were not even with a stick. through Miller shot persons all door and wounded three *10 standing there —one fatally. except All retreated the dead person. Miller came out and in fired two rounds Hubbard’s direction, appeared dark, put at the side of his car in the gun face, in his profanely and to kill threatened Hubbard. Hubbard wrested the gun from Miller and the rest is history. point is,
The of all in this the judge’s opinion, that Hub- unusually was not under or substantial point bard at this duress. This is contrary findings original our the appeal.
I away would like to move from the facts and into the law applied against by court, the defendant the lower re- in years. sulted an increase of penalty to fifteen The apply District Court’s the decision to enhancement statute, 46-18-221, MCA, section and add an extra five years to defendant’s sentence for homicide should First, bе reversed on three grounds. because the enhance- specific intent, ment statute “knowingly,” contains a it is a apply contradiction in terms to it to a where ad- situation mittedly say only “negligently.” defendant acted To that a person may “knowingly” act at same “negligently” and the during time vague, confusing and same act creates a Secondly, more im- arbitrary of conduct. and standard Court portant process, disrupted due the District in actively participating the ne- plea bargaining process by been con- gotiations. Such actions a trial court have 689, Annot., See, 10 ALR4th et demned in numerous cases. is Lastly, applied even if the enhancement seq. case, Court’s support the evidence not the District does acting not under sufficient conclusion that defendant was statutory exceptions duress to meet enhancement See, 46-18-222, MCA. statute. section is contained in the enhance- controlling language here subject provides part is ment statute which bran- .knowingly displayed, if “. . application to its he dished, . .” used a firearm. otherwise has held enacted the legislature
This Court that when 1973, “pur- it the words new criminal code substituted “feloniously” posely” “knowingly” the words (1976), Klein “intentionally.” State v. Mont. then, definition, containing word By P.2d 75. statutes definition, “knowingly” specific intent. Also contain a v. Seitz- accidently. State acting “knowingly” acting inger 180 Mont. 589 P.2d definition, com- contrast, refers In “negligently,” actor’s intent or to the regard mission of act without 45-2-101(37), MCA. See section knowledge. definition Nevertheless, intent of de- hearing sentencing brought into evidence оver the ob- repeatedly fendant was encourage- state with the jection of defense counsel. The retried ment the District Court *11 for effect of comment, supra. deliberate homicide. See of use such evidence The District Court rationalized the from of the firearm by trying distinguish knowing to the use simply done because the crime committed. This cannot be intent where proof specific it to of a subjects the defendant essence, negli- In present. intent is admittedly specific an committed redefined as act gent homicide has been pro- right equal to of his “knowingly,” depriving defendant
119
process
tection and due
creating
vague
statute.
As the Washington Supreme Court stated:
“.
. .Statutes which
crimes must
con-
strictly
define
according
plain
strued
to the
to
meaning of their words
as-
sure
adequate
that citizens have
of
notice
the terms
the
law, as required by
process.
due
‘Men of common intelli-
gence
required
cannot be
the
the
guess
meaning
York,
v.
enactment.’ Winters
New
507, 515,
68
U.S.
Pullman,
665, 670,
Seattle v.
(1947);
S.Ct.
We
stated
614 P.2d
37 St.Rep.
the enhancement
statute neither cre
ates nor penalizes
separate
a defendant with a
offense. The
interpretation
statute,
District Court’s
of the enhancement
here, is
in Davison.
If
holding
not reconcilable with
used,
enhancement
statute is
its
suggests,
to be
as
name
offense,
“enhance” the
impose
it cannot
ele
underlying
separate
ment of intent
from
underlying
offense.
statute,
well
misintеrpreting
As
the enhancement
District Court
of the defendant’s
purpose
obstructed
plea bargain by
imposing
five-year
top
sentence
ten-year
originally
sentence for which defendant
bargained.
Such
action
the District Court
contravention
standards
Bar
set
the American
Association Standards
role
Criminal Justice which limits the trial
*12
for Criminal
ABA Standards
impassive
of an
moderator.
by
(2
1980).
influenced
plea
ed.
When
Justice 14-3.3
voluntary. State v.
it
be
of a
cannot be said to
judge
actions
negotiations
Cross
As acknowledged related the facts rifle, Miller, times at defen- shot two peal, the owner of the posses- came intо dant moments before defendant himself rifle in defendant’s sion the rifle. Miller had shoved the Defendant wrested face, blow his head off. threatening to over to then walked away the rifle from Miller. Defendant in the neck with fatally his had been struck just friend who away to run began prior Miller’s shots. Miller shrapnel from Clearly, escape. prevent him and defendant shot at against preponderates this evidence of the situation not under that defendant was District Court’s conclusion The District shooting. substantial duress at the time statutory еxcep- Court, therefore, abused its discretion. 46-18-222(3), MCA, apply, should tion found section aside. five-year sentence should be set the extra I have made some and am mindful broad statements my However, own my frailties. it has been purpose to deal with the facts in an I impersonal and manner. objective have been perhaps personnel. too critical of the lower court I I speak would like it understood that do not terms of conscious prejudgment, partiality worthy *13 permit office would knowingly any сloud of prejudice to darken his understanding influence his decision.
MR. JUSTICE SHEA dissenting:' I join in Daly. the dissent of Justice It is refreshing on occasion to see an opinion longer in bathed lan- judicial guage, but instead addressing the fundamental issues un- derlying the surface issues.
We don’t know precisely why the trial gave court the sen- In State v. Stumpf tence to (1980), Mont., defendant. P.2d we held that “a trial court’s right to exercise its discretion does not mean that a trial court should not dis- close the reasons a underlying discretionary act. Absent rea- sons, thе appellate only why court can guess as to the trial court particular Here, made a decision.” the broad state- ment of the trial court that it relied on the sentencing re- port, report’s without disclaiming inaccuracy, that places an appellate court impossible knowing situation of not whether the trial court relied parts on erroneous of the re- port. A sentence that situation should not upheld. be United States v. Latimer (6th
In 1969), Cir. 415 F.2d 1288, the Court presentence held that error investiga- if report, tion ground relied on is remanding for resen- tencing. The case was resentencing remanded for because the record did not disclose whether the trial court had re- lied on erroneous or An improper eloquent information. ar- gument requirement favor judges reasons give in United sentences, for their States v. Baz- has been made zano 1120, 1122, 570 F.2d
Fundamental requires fairness the reasons for a sen- precision. tence set out with right The defendant has a to assurance that a in- relying erroneous lacking demonstrably in that here The record formation. assurance.