*1 MONTANA, Respondent, STATE OF v. Plaintiff Gary Lamere, A. DAVID MADERA Defendants Appellants. 82-251. No. April 1983.
Submitted
Decided Oct.
1983.
Mike McCarthy, Robert Butte, County Atty., Richardson, Fleming Pat and Ross ar- gued, Deputy County Butte, Attys., plaintiff respondent.
MR. JUSTICE SHEEHY opinion delivered the Court.
Gary LaMere appeal and Dave from convic- Madera their tions robbery felony of theft in the District Court of District, They the Second County. Judicial Silver Bow also appeal from given the sentences them the District Court We affirm years State Prison. of 50 each the Montana both convictions. 1981, 3, gunmen two masked night
On of October Hotel, occupants reputed a house robbed the of the Dumas entry, prostitution gain To one of robbers Butte. men opened, the two posed patron. the door was as a When four way proceeded to rob the women pushed in and their bound and they building. in the The women were found After rob- they cooperate. with if threatened death did women, bing men fled. an investi- police day
The a or two later and were notified resi- watched LaMere’s gation begun. Police officers was activity this observing during no days. dence three After time, landlord for information they contacted LaMere’s LaMere was a being informed that about LaMere. After an landlord invited officer suspect investigation, in their him. officer apartment enter LaMere’s with The it had apartment and discovered landlord entered the recently which the land- apartment, been abandoned. The clean, with always was was strewn lord testified neat and personal possessions. no The land- garbage and contained through apartment, officer walked looked lord and the a around, day, signed Later the landlord and then left. search, During the of- apartment. search consent to map layout of the appeared ficers what be a found the officers pantyhose Dumas which piece Hotel worn one of the robbers. believed to be mask 1981, filed in the On an information was December felony with one count charging Court LaMere District robbery was robbery. count theft and one count 45-5-401(1)(a), MCA, charging upon based section theft, committing purposely “in the course LaMere bodily injury upon knowingly inflicted woman].” [a thereafter, information was January an Shortly responsi- with him criminal against charging filed Madera felony count of rob- bility theft and one for one count of 45-5-401(l)(a), bery, upon based section which also *5 MCA.
The against information LaMere was later amended so the robbery upon count was based section 45-5- 401(l)(b). “in charged LaMere was with the course com- theft, mitting a purposely knowingly put [ting] person bodily fear injury.” immediate The information against Madera was never amended. 2, 1982,
On February the trials of Madera and LaMere were ordered consolidated the District Court and trial began 2, on March 1982. jury The reached a finding verdict both guilty I, II, defendants robbery, count and count theft. Both appeal defendants now their convictions and sentences to this Court.
In connection with the issues raised it will explanatory to note that in each case counsel representing the defend- ant in the lower court different from representing counsel appeal. each on this
THE LAMERE APPEAL
Issue 1. The District Court erred allowing State to use rebuttal at witnesses trial when the State had failed to give notice of said witnesses required by as statute. 46-15-301(3), MCA,
Section requires State, for purpose of only notice prevent surprise, and to to furnish to court, defendant and file with the clerk no later than five days before trial “or at such later time as the may good court permit,” for cause a list of witnesses the prosecution intends to call as rebuttal witnesses to the de- alibi, fense of among other defenses.
Jury 2, triаl of these began consolidated cases March trial, 1982. On day State, the last March without required 46-15-301(3), the notice section presented rebuttal over objection witnesses of counsel for LaMere.
LaMere claims that the was aware of these witnesses trial, apprise before the but failed to LaMere their exis- attorney tence. State contends since the nature of inform of the exact the State LaMere refused alibi, rather, lawyer-client privilege, claiming but LaMere’s statute) the State required by gave only the information by the rebuttal possessed know if did not the information until alibi witnesses testi- witnesses would be relevant fied at trial. 5, 1982, testi- Friday,
On alibi witnesses March LaMere’s Idaho, Wallace, on October fied that LaMere was 3. occurred on October alleged 1981. The crime is to have 8, 1982, notified LaMere of Monday, On the State March *6 The State presented. the that would be rebuttal witnesses cоunsel, LaMere, to through opportunity his the offered The rebuttal witnesses were talk to the rebuttal witnesses. Butte, they tes- Hospital Community from St. James hospital at at had attention the tified that LaMere received 2, 10:38 on October 1981. p.m. agreed
The District with the State that until Court testified, way had no the State LaMere’s alibi witnesses had to, testify and until knowing what those witnesses would witnesses, witnesses’ testimony alibi the rebuttal the 2, in Butte October testimony present that LaMere was on 1981, also felt be relevant. District Court would not adequate opportunity given that counsel were the defense they testified. On to talk to the rebuttal witnesses before bases, testimony of permitted the those the District Court the rebuttal witnesses. gave on therefore notice appeal
The State contends that it In practicable time. to counsel at the earliest defendant’s meantime, the give had refused to State defense counsel witnesses, statements, if copies any, taken from alibi testimony of their to divulge or to the nature and extent the State. State v. (1978), Johnson points
LaMere out that 1328, 61, the limitation approved 585 P.2d this Court Mont. mother as to the wherea- testimony from the defendant’s robbery, during the time bouts of the defendant of an alibi de- given when had not notice the defendant (1978), in McGuinn v. State fense; 177 Mont. 581 P.2d 417, this held an on Court alibi could not be relied the defendant notice given since no of that defense was as required by pertinent the then statute. LaMere contends quick deny this Court has been to witnesses when notice, defendant an given has alibi should equally prompt deny it to give State witnesses when fails the statutory notice.
Finally, issue, on this although LaMere contends that facially Montana statute is it pro- constitutional because reciprocal vides revelation of alibi and rebuttal witnesses defendant, the failure here the State to give 5-day unconstitutionally notice has him deprived process. of due
LaMere bases his
argument by drawing
constitutional
Oregon (1973),
the decision in Wardius v.
412 U.S.
S.Ct.
It must be that provides the statute trial, for unanticipated exigencies may that on both arise Thus, for the defendant and the as State. both to the State defendant, and the may the court waive the time limita tions for giving “good notice when cause” is Here shown. the State contends it the that served defendant with list of its opportu intended rebuttal witnesses at the earliest 5, 1982, nity. Until the alibi witnesses testified on March trial, knowledge the the during State contends it had no of testify concerning what the alibi the witnesses would to whereabouts of LaMere the contested dates. Once the State, testimony presented po- alibi was in a being then disprove through that witnesses sition to the rebuttal night preceding the on the LaMere was out of the State robbery, contended, he notice of its witnesses. as served the willing give to defense The court ordered and the State was opportunity rebuttal witnesses counsel an to talk to the they testified, but refused the offer. defense counsel before by of the No motion was made defense for a continuance trial. question obviously gives discretion
The statute permit list the witness the District Court additions certainly good good shown; be cause must when cause of witness list be to include the amendment construed presenta evidentiary developed during cause matters require party, clari оf the case either matters which tion may by party. Court The District fication or rebuttal permit commenced, trial the amendment even after the has (1976), 75. If sur v. Klein Mont. 547 P.2d State procedure party, proper prise by is claimed the other is to contin are ask when unrevealed witnesses added preparation may made, v. McKenzie uance so (1976), no P.2d but here continu 171 Mont. requested. ance was testimony
Undoubtedly, witnesses rebuttal gravely The defendant alibi defense. affected defendant’s substance earlier refused to reveal to the State the had provide. testimony He his would alibi witnesses caught strategy in a chance, He his failed. took trap statutory making, no of his own constitutional thereby. impurity arose granting erred in not LaMere’s
Issue 2. The District Court illegal part suppress an as evidence seized motion to by allowing the same the introduction search and State at trial. entry apartment his into that the
LaMеre contends company time, the first in the of the landlord detective only by landlord, was warrant, without consent exigency illegal lack excuses the existed which because no *8 plain may by warrant; of a the view doctrine premises; not invoked person unlawfully a on the and the landlord had authority no to consent to the search the detective. supervi- judicial Moreover, LaMere contends there was no sion, because the items seized were not returned nor inven- tory requirement of made them. the LaMere contends that filing inventory person delivering copy an and a to the premises property apply from whose was taken should only to a warrant, search a conducted without but also ato search conducted consent or under color of consent. 46-5-301, See section MCA. premises
The detective went into the rental on October company 1981, in of the landlord. curtains had bеen parked drawn, no car residence, was front there response door, was no when the knocked landlord on the key garbage, inside, LaMere’s cluding was found and there was in- paper empty cigarette packs, cans, sacks, beer spring bedding lying it, box and mattress with no on the apartment floor. The landlord indicated that the before had always clean, been neat and landlord further stated gone.” unpaid that “it looks like their stuff is The rent was (due 5), for the month of October October and there was no apartment any evidence that LaMere came to the at time robbery after the occurred or before his arrest on November 6, 1981.
Later when the detective from obtained the landlord a apartment, tagged consent to search he the evidence placed bring locker, it in the evidence but it failed to magistrate. before a piece paper appeared mаp
At trial a torn which abe plan floor Dumas Hotel introduced and piece pantyhose may which have been used as mask during robbery was also These introduced. are two illegally exhibits which LaMere claims were obtained. Clearly, position any argue LaMere is not in a in fringement guarantees against of his constitutional unrea departed sonable search and He seizure in this case. had apartment it His abandon- at the time was searched. premises dis- had The defendant ment undoubted. *9 place any right object being the his actions claimed things 46-5-103, MCA. or the seized. Section searched (1964), Callaghan 407, 821, 824; 401, 144 P.2d v. Mont. 396 (1960), 683, 217, 4 80 S.Ct. Abel v. States 362 U.S. United tenant, landlord the L.Ed.2d 668. On abandonment authority apartment. possession under in of the He had was 46-5-101(2), search, section our to consent to the statutes MCA. warrant, is no a but there
The search was made without statutory requirement under a consent items seized reported magistrate. to a searсh be inventoried and considering in Issue 3. The District Court erred charge charge of of the theft as a lesser-included offense of robbery should dismissed one and the District Court have of the two counts. robbery charged in I with violation in count
LaMere 45-5-401(l)(b), provides: MCA, of which section “(1) robbery person if in the A commits offense committing a he: theft course “...
“(b) injury upon any person bodily or threatens to inflict any person purposely knowingly puts in fear of immedi- or bodily injury; ...” ate charged violation II with theft
LaMere was count 45-6-301(1)(a), MCA, as which states follows: section (1) person of theft when he A commits the offense “Theft. purposely knowingly con- exerts or or unauthorized obtains property owner and: trol over “(a) depriving purpose owner of the has the property;” property alleged charge against LaMere also
The felony. charge value, which made $150 exceeded argument this issue is that of LaMere’s The essence robbery, prove prove theft, must the State order to charge a lesser-included offense is theft therefore the charge robbery. within the (Blockburger “Blockburger v. United States test”
(1932), 180, 299, 304, 182, 306, 284 U.S. L.Ed. S.Ct. 309) states: applicable that,
“The rule where the same act trans- or statutory pro- action constitutes a violation of two distinct applied visions, the test to be to determine whether there only provision are two offenses one is whether each re- proof quires of an additional which other fact does .” not. . (1975),
However, in Iannelli v. United States 420 U.S. 770, 785, 17, 1294, 1284, fn. 616, 95 S.Ct. fn. 43 L.Ed.2d Supreme explained Blockburger fn. Court saying: test requires proof
“If each not, of a fact the other does *10 Blockburger notwithstanding satisfied, the test is a substan- overlap proof tial in the offered to crimes. . .” establish the 46-11-502(1), prevents prosecu- statute, MCA, Our section offense, tion for more than one when one is offense included in the other. (1981), Mont.,
In State v. 234, Ritchson 630 P.2d St.Rep. Blockburger rule, we the considered and de- applicable charge termined the test is whether each re- quires proof not, of a fact which the other does to deter- mine if there is indeed a lesser-included offense.
We look to the statutes and not to the facts of the individ- Ritchson, ual case to make that determination. 630 P.2d at St.Rep. 237, 38 at 1018. interpreting robbery, defining
In the statutes the defining prove robbery, theft, statute we note that to the complete State’s case is if as it an element of the offense proves felony However, either in or misdemeanor theft. prove felony prove theft, der to the State must the property unlawfully controlled, value of the ex taken or 45-6-301(1)(a) (5), $150, ceeds the value of sections proof required MCA. There then is an additional element of felony to be convict defendant of theft that is not In that robbery. charge for his on the required conviction theft in this situation, Blockburger test is met and the charge within the offense case lesser-included robbery. when it enhanced de- 4. The District Court erred
Issue 46-18-221, MCA. fendant’s sentence under section judge, his the district When LaMere was sentenced dangerous use of a years ten for the sentence included 46-18-221, MCA. LaMere weapon provided as section not mention charging document did contends that since the (1980), Mont., Davison weapon in State v. as was the case he was not given since St.Rep. 614 P.2d enhancement, en- that his any intent to seek notice improper. hanced sentence was evi- sentence, judge found from the
In passing the district during firearm possession LaMere dence that crimes, gave him an ad- and for that the commission consecutively year to run with the ten sentence ditional imposed. other sentences itself did not mention amended information
While the with the crimes weapon connection that LaMere used a attorney for leave county filed charged, the affidavit during the recited that file amended information continually men crime the two armed commission and threatened possession in their hand-weapons had Moreover, 2, 1982, county at same. on March use the him advising letter torney served defense counsel with a section, intended to invoke the enhancement circumstances, 46-18-221, find no we MCA. In those section utilizing provi part Court error the District *11 weapons in de for use of enhancement statutes sions of the imposed upon the to be defendant. termining the sentence THE APPEAL MADERA dismissing in not one 1. The District Court erred
Issue of theft because the elements against counts Madera robbery. the crime of are included within We have discussed this issue connection with the LaMere appeal holding Our on this foregoing. issue is the same in the case of Madera. 2.
Issue The District Court erred in designating Ma persistent dera a felony offender where there evi was no dence person that Madera was the same as the one whose felony record was at the sentencing. introduced
At the time sentencing, the District Court added ten years at Montana State consecutively Prison be served by Madera to year the 50 previously imposed by sentence words, the court. In judge other the district enhanced Ma- dera’s provisions sentence under of section 46-18- 502(1), MCA. The reason for the enhancement was that Madera had previously been aggravated convicted of as- sault and had been at incarcerated Montana State Prison. He had been from released Montana State Prison on Au- 25, gust robbery 1981. The and theft at the Dumas Hotel occurred on October 1981.
The basis of Madera’s contention on this issue is that there is no evidence that Madera was the person same prior whose record was introduced at the sentencing hearing. (1921),
In State v. Livermore 59 Mont. 196 P. this Court held the State must independently prove that person whose person record being introduced case, sentenced are one however, and the same. That decided when separate there was no sentencing hearing pro- statutes, vided under our where the defendant could take the stand deny allegations presentence made report. (1979), Mont., in State v. We held Radi 604 P.2d 318, 320, 2345, 2347, St.Rep. present statutes, under our that when matters presentence report contained are defendant, contested has the defendant an affirmative duty present showing evidence inaccuracies con- tained in the report.
Although opportunity sentencing Madera had hear- at ing refute or that was con- contradict the information *12 Craig through report introduced presentence tained in the pre- otherwise Thomas, not to the stand or chose take he prior convictions. or refute the to contradict sent evidence issue contеsting this precluded He is from therefore appeal. in Madera a designating erred
Issue 3. The District Court notice given he was not felony offender because persistent designation under such request intention to of the State’s 46-18-503, MCA. section issue, we must this to understand
In order for the reader provide which parts of the statute pertinent first set out the of- felony persistent as sentencing persons designated for MCA, involved. 46-18-503, is the statute fenders. Section accused be to the given two notices to requires The statute writing to the given attorney. First notice must be or his guilty entry plea attorney his or accused before upon a called trial or the case is the accused for before specify prior con- guilty, notice must plea not which The incurred the accused. alleged to have been victions prior are convictions charge and the notice known any manner made or any manner public made upon felony is before the verdict returned jury to the charge. county attor- case, given by the
In notice was this written 2, 1982, on March his counsel ney through to the accused written copy A called trial. before case was Court, District clerk of the filed with the notice was not 46-18-503, until after however, compliance with section charges against felony convicted on Madera had been was filed copy of that notice him. On March designate Madera clerk, a motion to together with with the felony persistent offender. as a 46-18-503, MCA, under section required notice
The second Then, the notice convicted. defendant applies when the designa- felony offender persistent will seek the State upon the accused tion, been served previously which has time before the counsel, the court must be filed with his sentencing, fixed for fix a hear- court must time for days ing with at least three notice to the accused. In this case, notice, along designate when the with the motion to filed, persistent felony Madera a offender was the court made and entered its written hearing order that a on the motion be held March 1982. show record does not *13 a of copy that this order or motion of same or notice upon was served the defendant or his con- counsel. Madera that, tends because he was with not served the second no- tice, the jurisdiction court was without him to sentence as a persistent felony offender.
It MCA, is obvious from section 46-18-503, that jurisdictional upon persistent felony notice which the designation must be required founded is first notice to given be either entry plea before the of guilty or before the case is for upon plea called trial guilty. The positively record here indicates that the first notice was given. notice, however, second procedural rather jurisdictional. than Here the court made and or entered an providing days der for four a hearing before would be held on the motion to designate persistent felony Madera as a offender. The appeared accused and his counsel before the District Court place at the time set that order for hearing. time, At that objection by no was counsel or raised notice, the accused that second the notice the hear ing, had not given record, been to Madera. Nowhere in the briefs, or on does any prejudice Madera show to him be cause of the lack of direct as written notice to the time of his hearing designation persistent on felony as a offender. When sentencing hearing was on held March 26, 1982, the accused and his attorney by were virtue aware given first to notice them March that the State 2, 1982, would seek designation persistent felony Madera’s as of fender. The specifically defendant was informed the no given to ticе him persistent felony before trial that his des ignation would be on his prior based conviction for aggravated County, Montana, assault for Lake which he years. Madera was had a sentence of ten Since received against charge fully be used which would informed of urged prejudiced fail- him, he it cannot be was hearing, sentencing ure notice the actual to receive hearing appeared contest the fact which he and did not at prior itself. conviction sentencing hearing, when at the
It should be noted that required present were to both LaMere and Madera objection court, for LaMere raised the before the counsel prove LaMere was the the State had failed presented person the court. identical whose record joined in all motions raised Counsel for Madera objected on the counsel LaMere’s counsel but neither proper ground of notice. lack of questions ordinarily consider claimed will not We presented previously to the trial court. error not raised (1982), 494, 497, P.2d v. Johns 201 Mont. St.Rep. 2049, 2053. sentencing appellant erred
Issue 4. The District Court years because the use of a firearm additional ten an *14 against allegations him in the information there were no displayed used, other a firearm or he or brandished that weapon. an ten Madera to additional
The District Court sentenced remaining consecutively years after the to be served engaging MCA, 46-18-221, for under section sentences knowingly robbery dis- theft while of the commission dangerous brandishing using playing, other firearm or or weapon. (1980), 489, 496, Mont., 614 P.2d
In State v. Davison impos St.Rep. 46-18-221, that section we held upon mandatory ing a defendant sentence an additional danger using knowingly guilty offense while found an separate weapon, provide substantive of for a not ous did charging did, however, in Davison that note fense. We against with a he was armed him mentioned document committing he was crimes with which knife while mandatory charged. We therefore held that the additional imposed upon any sentence could be Davison without viola- tion of the Sixth Amendment of the United States Consti- grants which right tution the accused the be informed of the nature and cause of the him. against accusation in- extrapolates charge
Madera Davison from him against formation must manner some mention the use of a dangerous weapon mandatory before the sentence may imposed, contending he deprived that otherwise is a jury trial on the issue. one,
Madera raises two contentions under this issue: the charging weapon instrument must show that he used a he before can be sentenced dangerous for the use aof and; two, weapon that since accomplice he was an and not crime, perpetrator the actual such an enhancement may аgainst statute not be used him. respect contention,
With to the first we held that instrument, information, charging need not contain specific within it a allegation of the use a firearm or other dangerous weapon if the charging instrument otherwise properly identifies the crime for which the defendant is charged. The statute for enhancement providing of the sen tence where a dangerous weapon is utilized is for pun one ishment and not one an to define element of the crime charged. Therefore, the information need not specifically set weapon forth that a was used the commission of the crime charged. Punishment never has been con part sidered a pleading State v. charging a crime. (Utah Angus 1978), 581 P.2d 995. fact,
As a matter of before Madera’s case called trial, 2, 1982, on March county attorney gave written notice to the provisions accused and his counsel that 46-18-221, MCA, section requested would be the State this case. *15 insistence,
Madera’s second contention relates to his run- ning through here, he several the issues he raises accomplice was perpetrator convicted as an and not as a Therefore, he he to the bene- the crime. contends is entitled 46-18-222(4), MCA, de- provides that a fit which of section sentence, if statutory minimum “the fendant entitled to accomplice, constituting an conduct defendant was another, de- and the principally offense the conduct was relatively minor.” participation fendant’s was State, testimony principal witness for the The “house,” implicated Madera manager reputed merely accomplice. When she considerably more than as an her out place, answered knock on the door to she looked jump short man outside who was little window and saw a Mexican, said, ing up who “This is one hot and down and door a inches opened let me in.” Shе the back few then door, through the suddenly person burst when another hand, gun. with a The and hit her on the head grabbed her tall, 6 feet inches person wearing gloves, other was ski mask. At the figures on the wore a ski mask with man, in wearing person, the short burst same time the first and three others stocking They mask. forced this woman death, they while floor under threat of lie down on the tape. taped Using their mouths and hands with adhesive threats, money She they where the was. demanded to know man, whom she guns. testified that both men had short Madera, gun longer barrel identified as had a with a later person’s they $200 After found gun. than the it other witness, took each of principal they belonged to the their one extracted girls upstairs and one the other three this was identified doing The individual money from them. de Mexican,” himself. The witness also Madera as “a little in the sides of poked guns their scribed that the men heads, frequently them telling against women and their them; badly one so they kill kicked thеy going to were witness was principal day; walk the next she couldn’t had that her wound hard in the head so very struck left. After the men had girls after the the other treated from the extracted, cords they light cut money been had and heads tie their feet them to various rooms and used *16 together they they so that if would choke moved. There is enough record, more in the but we have what recounted to indicate the full in involvement of Madera commis- exception is, therefore, sion of the crime. He not within the accomplice require as an which would a minimum mandatory respect sentence with to the use a firearm this case. instructing jury
Issue 5. The District Court erred in on charge charge robbery against a different than the made Madera. allowing appellant
Issue 6. The District Court erred tried, to be convicted and sentenced crimes for which he charged. was not against fatally
Issue 7. The information Madera was de- apprise it fective because did Madera of the nature and charged cause of the accusations for which he was and the place alleged time and offense was not stated. together clarity. We discuss issues charged Madera was in the information as follows: criminally responsible “DAVE MADERA is for the follow- ing counts: committing purposely In theft,
“CT. I. the course of or knowingly bodily injury upon [a inflicted woman]. Purposely knowingly
“CT. II. or exerted unauthorized property, having cash, control over to wit: a value in excess pur- [a woman] $150.00 which was owned and had the pose deprive property.” to the owner of said against amended, information Madera was never foregoing charges in the information are basis of the conviction of Madera. portions foregoing opinion
We have recited of this participation of Madera in the record as shown from the testimony of witnesses. Madera never has contested the acts which we have occurred. He continu- recited has ously argued that his identification the woman involved faulty nearly was prove all of his case was directed dis- upon
or cast doubt her identification of him. pertinent gave which are The court these instructions Madera’s conviction:
“INSTRUCTION 36 Robbery person if, in course
“A commits the offense committing theft, he: puts any person “purposely knowingly of imme- fear or bodily bodily purposely knowingly injury, inflicts or diate injury upon another. committing phrase, theft,’ as used ‘in course of
“The attempt in an which occur in this section includes acts *17 attempt flight commit, of, in the or in after the commission of theft. commission
“INSTRUCTION 38 criminally charge that DAVE MADERA
“To sustain the ROBBERY at 45 the of the accountable for commission prove Mercury Montana, Street, Butte, State must the East following propositions: the Robbery 3, 1981, oc- or about October
“First: That on Mercury Montana; Street, Butte, 45at East curred MADERA, Defendant, either DAVE “Second: That the during ROBBERY, with of the сommission the before or purpose promote or the commission facilitate the per- attempt agree ROBBERY, abet, to aid the aid, or did planning petrator(s) of of the offense in or commission ROBBERY. your you the evidence all consideration
“If from find beyond proved propositions has been of these that each you Defendant, doubt, find then must reasonable felony guilty offense of MADERA, DAVE ROBBERY. your you consideration hand, find from
“If on the other propositions has not either of these evidence that all the you beyond proved doubt, should then a reasonable been defendant, MADERA, find the DAVE guilty of the fel- ony offense of ROBBERY.
“INSTRUCTION case, felony “This being your all twelve number must in agree . order find a verdict . .” The District Court also jury, instructed the its instruc- tion no. 1:
“. . . Madera, is, information, The defendant David by ac- criminally cused being responsible for the commission of (2) felony two THEFT; offenses: ROBBERY and said of- alleged fenses are to have been committed Butte Silver Montana, Bow County, State of day on or about 3rd October, 1981.” objection
No was lodged the defendant or his counsel against proposed instructions when given.
We now recount the several contentions raised Madera in connection with charges against him and the instruc- given by tions the court. points
Madera difference court’s instruction no. 36 from the In language the information. the infor mation, he charged with in purposely knowingly flicting bodily injury instruction, upon In another. court instructed that “pur Madera could be if he convicted posely or knowingly puts any person in fear of immediate *18 bodily injury, or purposely bodily or inflicts in knowingly upon jury another.”
Madera claims that possible a dual verdict was here under instruction, jurors may because six of con- have him victed for knowingly inflicting bodily injury upon an- other, may and the other putting six him for have convicted person in bodily fear of injury. immediate He contends there is a possibility the verdict here was not unanimous.
We considered this same issue in State v. Warnick (1982), 120, 190, 202 Mont. 656 P.2d St.Rep. 39 2369. We stated objection instruc- there has been no to the there that when appellate tion, of those instruc- is no basis for review there (1982), citing 289, tions, v. Powers 198 Mont. State St.Rep. addition, 1357, In we stated that when P.2d 989. requirement jury of a as to the had been instructed presented verdict, each alternative unanimous and when jury supported evidence, the non- was substantial jury McKenzie v. is not available. unanimous contention (1981), Fitzpatrick 368; v. Osborne 195 Mont. 640 P.2d (1981), St.Rep. Mont., 1002, 38 1448. 638 P.2d although he was further contends that Madera accomplice abetting charged aiding the crimes as an robbery “forgot theft, the crime the District Court charged” he tried as a with which and so was Madera was principal. principal. jury those The verdict forms were for rights Sixth his under the Thus Madera claims that Article United States Constitution and Amendment II, in his were § of the Montana Constitution violated prosecution. is found section
The to Madera’s contentions answer 45-2-301, MCA, which states: responsible person is an element is for conduct which
“A person is if the either an offense conduct legally he for or accountable that of another himself (Emphasis provided 45-2-302, or both.” such conduct as added.) case, was the defendant the instructions this Under responsible being charged, for ac- tried and convicted robbery The fact that and theft. countable for the crimes before the words not inserted the word “accountable” was “robbery” have forms does not on the verdict and “theft” fully any jury bearing as to was instructed the case. crime committed. under the law which alleges of the infor in the failure error Madera also place was, He of the offense. list time and mation to he application leave to file however, State’s served with the on October information, in which it was recited
163 Mercury, 1981, Butte, Mon- at 45 East a residence located by masked, tana, robbed two armed men. was and entered (1981), Longneck Mont., 438, 436, 640 P.2d 38 In v. St.Rep. 2160, 2162, held: we supporting .
“. . the contents of the affidavit motion may leave to file an information be considered determin- ing meaning language the contained in the information.” (1982), Riley 413, v. also State 199 Mont.
See 649 P.2d St.Rep. 1273, 1491, 39 where we considered an attack on sufficiency of an information and the where State had place failed nitely declare the time and of the offense defi- as precision as could done. There we held as to necessary ingredient time was not unless time a material of the offense. allegations
We find no merit in the under error issues 6 and 7. foregoing seven issues were raised one Madera’s appeal. Additionally, appellate
counsel on his other counsel appeal raised two issues on which follow.
Issue 8. dire, Whether failure to record voir opening closing statements, conferences, bench jury charge, jury poll statements, the and the denied de process fendant due law. portions
None of the trial set forth no. 8 issue reporter during were taken down the court so trial no transcript appeal. or record of the same is available Ma- deprived thereby dera contends that he has been due process of law.
There can nobe doubt from the record then that Madera’s portions trial counsel waived those of the record not recorded. Seitzinger (1979),
In State v.
Mont.
P.2d
transcript
appellate
counsel, who,
available to
as in this
case,
counsel,
were different from trial
did
include
opening
closing arguments.
voir dire and the
and
There the
argued
defendant
that the failure to
dire
record
voir
statements
reversible
opening
closing
constituted
impossi-
“it
because
rejected
error. We
contention
specificatiоns
er-
ble for this Court
reach defendant’s
of counsel”
upon vague
unsubstantiated
statements
ror
*20
through
not made efforts
appellate
and because
counsel had
pinpoint
errors in
means of
of trial counsel to
the
affidavits
the
unreported sections of
trial.
the
they
attempted to ob
Appellate counsel state that
have
that
the
counsel the unrecorded errors
were
tain from
trial
pin
such
be
made
human failure
errors cannot
through
but
Seitzinger decision, we stated
Nevertheless,
in the
pointed.
record,
protection
the
a trial court should
that
for the
of
examination,
dire
reporter
order its court
to record the voir
and that
arguments
and the final
opening
the
statements
proceed
that these
diligent defense counsel should demand
143,
P.2d at 659.
The we the rationale State here that should Seitzinger and refuse to reverse upon vague unsubstanti- rec- portions of the of error the omitted allegations ated opinion in our state prospectively ord and that we could portions of a trial will to record all any that future failure grounds for an automatic reversal. any- us that would indicate nothing We have before unreported portions during the thing prejudicial occurred an it cannot be agree the State that of the trial. We with portions of the record error to omit automatic reversible trap could be That upon specific of defense counsel. waiver of gain in the interest applicable easily sprung, too with no of justice. the efficient administration trial to insist of defendant’s counsel Issue 9. failure his waiver recording parts on all the trial and affirmative opening closing dire and and state- reporting the voir of counsel. ments constituted ineffective assistance appellate through Here Madera his counsel claims right deprived Madera was of his Sixth Amendment to ef- his attorney fective assistance of counsel because trial af- the voir and firmatively reporting waived the dire statements, opening closing did not insist poll jury, con- reporting charge, bench ferences. Madera failure contends trial counsel’s protect the record created a situation which makes it im- possible him meaningful appellate receive a review of the conviction which resulted in “a draconian sentence.” It protect is contended that obligation the record is “range competence within attorneys demanded of cases;” (1980), Mont., v. Rose criminal P.2d St.Rep. 642, 652. *21 Madera contends that his claim of ineffective counsel raised here rests by on a decision made trial counsel that possibly could not part any strategy, have been of trial had do nothing adequate to with preparation, and was not the any result of lack knowledge of of the relevant law. It was elementary instead a failure to principle observe the of trial protection conduct that necessity. of the record is a Rose, The State contends we that in that under stated or- der reversal, to find the attorneys’ failures sufficient for we say must be able to reasonably that there are errors a com- petent attorney as a acting diligent, conscientious advocate committed, would have not for cоnstitutional standard. gives good
This issue concern. Court a deal of position say definitively The Court is not in a to that no dire, in error occurred in the opening closing the voir statements, record, or other portions omitted the trial point because we do not which in have record to we can making such statement. Yet our review of the entire record in this the firm conviction that LaMere and case leads us to charged against them be- guilty Madera are crimes yond any complexity doubt. number and reasonable counsel, by by raised on the record made issues based counsel, re- trial is an indication that defendant indeed ceived the trial. Our during effective assistance counsel Seitzinger, involving nearly in the same handling rationale issues, leads us the conclusion that such rationale is the in adopt best course for us with the Madera connection appeal. We therefore decline to determine Madera by simply trial effectively during assisted counsel his portions of the record were omitted because certain allegations of counsel. More definitive error are waiver of unreported portions give rise to our con- necessary deprived process. of due clusion that Madera was prospective There rule that adopt is no need for us to omitted, having portions of the record the future all cases counsel, whether or omission of shall be an inadvertence will reversal of a conviction. We look ground automatic for at each on its merits when that issue is raised. case
We LaMere and therefore affirm the convictions both Madera.
MR. CHIEF HAR- JUSTICE HASWELL JUSTICES RISON, WEBER GULBRANDSON concur. MORRISON, dissenting part:
MR. JUSTICE majority opinion except I concur in all aspects is ad- appeal. partial issue in the This dissent one LaMere only to dressed issue. These witnesses properly noticed alibi witnesses.
LаMere Wallace, 2 and 1981. on October placed LaMere Idaho *22 have on October 3rd. alleged The crime is to occurred totally un- destroy defense and State could alibi re- credibility by that LaMere showing dermine LaMere’s Community Hospital at St. ceived medical attention James re- 1981. Rather than p.m. 10:30 on October Butte at trap LaMere. evidence, sought to veal this present his alibi witnesses show- permitted LaMere was to Wallace, Idaho, on October and 3. These ing he was Friday, Monday, March 5. On March witnesses testified 8, the State LaMere that the rebuttal notified witnesses presented. testimony already would be LaMere’s A record. continuance have availed LaMere nothing. would destroyed His defense was about to be and no continuance could have changed that. certainly
It effectively argued got can be that LaMere ex- actly coming presented what was to him. apparently He false alibi and the permitted expose per- State was to jury. Under these justice circumstances would seem to have been served.
As an appellate jurist I right disregard had no clear law, statutory regardless 46-15-301(3), of result. Section provides MCA as follows: purpose
“For the only prevent surprise, notice and to shall furnish to the defendant prosecution file with the clerk of the days court no later than five before trial or at such later may time as the court good permit for a cause a list of prosecution witnesses the intends to call as rebuttal witnesses to the justifiable force, defenses of entrap- use of alibi, ment, compulsion, or the defense that the defendant did particular not have a state of mind that is an essential element of the charged.” offense (emphasis supplied).
The facts are undisputed. The State did not furnish a timely notice. No good cause In my opinion wаs shown. we have no alternative but to reverse LaMere’s conviction and remand for a new trial.
The majority opinion seeks to explain good cause on the basis that the defense apprise did not prosecution what the alibi witnesses going testify were about and therefore the State is noticing excused from rebuttal wit- nesses. The law does require apprise defense to prosecution of the substance of testimony. an alibi witness’ only The law requires give the defense notice of the witnesses. This was done. The in- every right State had *23 they if refused to be interviewed terview the witnesses pursuant to 46- depositions their could take then the State 15-201, MCA. noncompliance for the State’s simply is no basis
There State, spe- in violation of the notice statute. The with the statute, “ambush” permitted provisions cific surprise defendant with witnesses. I feel that LaMere was personally I confess that must always it is these circumstances guilty. shown to be Under Nevertheless, rule. apply “clearly guilty” tempting to but to vote for I have no alternative the statute is clear and a reversal. in the dissent. joins SHEA
MR. JUSTICE