STATE OF MONTANA, Plaintiff and Appellee, v. KURT J. NORMAN, Defendant and Appellant.
No. DA 09-0235.
Supreme Court of Montana
Decided December 2, 2010.
2010 MT 253 | 358 Mont. 252 | 244 P.3d 737
Submitted on Briefs July 21, 2010.
For Appellant: Johnna K. Baffa, Attorney at Law, Missoula.
For Appellee: Steve Bullock, Montana Attorney General, Barbara C. Harris, Assistant Attorney General, Helena.
JUSTICE NELSON delivered the Opinion of the Court.
¶1 Kurt J. Norman was convicted following a jury trial in the Twenty-First Judicial District Court, Ravalli County, of unlawfully possessing game animals. He now appeals, arguing (1) that the District Court improperly instructed the jury and (2) that his trial attorney rendered ineffective assistance of counsel. We affirm.
BACKGROUND
¶2 In 2006, the Montana Department of Fish, Wildlife, and Parks (FWP) commenced an investigation of Norman based on information that he had been involved in unlawful hunting activities in Hunting District 270 (HD 270). This district, located southeast of Hamilton, is highly regulated for the purpose of fostering a population of mature buck mule deer. According to testimony from J.D. Douglas, a criminal investigator with FWP, the restrictions on hunting in HD 270 have, in fact, resulted in some “enormous” bucks. Correspondingly, the area has become very popular among hunters. In 2007, only 100 permits were issued for the large bucks, 15 of which went to area landowners. For the remaining 85 permits, FWP received 5,820 applications.
¶3 In 1999, Walter Mick Iten bought 3,500 acres within HD 270. He testified that after acquiring the property, he received calls from “literally hundreds” of people wanting to hunt there. He further testified about instances of trespassing and poaching, sometimes by persons whom he had specifically told not to enter his property. Thus, in late 2000, Iten enlisted Norman to patrol the property and report
¶4 Douglas testified that in the course of the FWP investigation, he interviewed ten or so witnesses and seized animal parts, numerous photographs, and a computer from Norman‘s residence. Based on an analysis of this evidence and the witness interviews, he ascertained the location and circumstances under which each animal had been killed, who had done so, and whether the person had been issued a license for the particular animal in the particular location. According to testimony at trial, Norman was involved with a number of animals unlawfully taken in 2003, 2004, and 2007, sometimes as the shooter and sometimes as the person who accompanied the shooter.
¶5 The State filed a three-count Information on January 2, 2008, charging Norman with violations of
Count 1: Unlawful possession of game animals, a felony, in violation of
§ 87-3-111(1), MCA (2005) . Between May 8 and 22, 2007, Norman purposely or knowingly possessed two buck mule deer, one antelope, and one bull elk which had been killed unlawfully (namely, without a valid license) and whose value exceeds $1,000.Count 2: Possession of unlawfully taken wildlife, a felony, in violation of
§ 87-3-118(2), MCA (2003) . Between November 1 and 30, 2004, Norman purposely or knowingly possessed one cow elkand two buck mule deer which had been killed unlawfully (without a valid license) and whose value exceeds $1,000. Count 3: Possession of unlawfully taken wildlife, a felony, in violation of
§ 87-3-118(2), MCA (2003) . Between October 12 and November 30, 2003, Norman purposely or knowingly possessed one antelope, one bull elk, and one buck mule deer which had been killed unlawfully (without a valid license, or in violation of the limit on number of game animals hunted or killed) and whose value exceeds $1,000.
¶6 The value of each animal is set by statute. See
¶7 Furthermore, with respect to Count 1 (unlawful possession of four animals whose value exceeds $1,000),
¶8 Consequently, in order for Norman to be convicted of felony possession of game animals as charged in the Information under these statutes, it was necessary for the jury to determine, with respect to each count:
- that he unlawfully possessed at least one of the animals listed in the count; and
- that the value of the unlawfully possessed animal or animals exceeded $1,000 because (a) at least one animal was a trophy animal or (b) two or more animals were unlawfully possessed “as part of the same transaction” (Count 1) or “within a 45-day
period” (Counts 2 and 3) and their value when “aggregated” (Count 1) or “added together” (Counts 2 and 3) exceeded $1,000.
¶9 Of course, in order to complete the second inquiry, the jury had to determine the value of each unlawfully possessed animal. Although the animals’ values are set out in
¶10 The case was tried on October 20 through 22, 2008. Ultimately, the jury made the following findings reflected in the Verdict:
Count 1: Norman illegally possessed two buck mule deer, one antelope, and one bull elk between May 8 and 22, 2007, and “the total value of the animals illegally possessed” was “[o]ver $1,000.”
Count 2: Norman illegally possessed one cow elk and one buck mule deer between November 1 and 30, 2004, but did not illegally possess the second buck mule deer alleged under this count, and “the total value of the animals illegally possessed” was “[o]ver $1,000.”
Count 3: Norman illegally possessed one antelope and one bull elk between October 12 and November 30, 2003, but did not illegally possess the buck mule deer alleged under this count, and “the total value of the animals illegally possessed” was “[o]ver $1,000.”
¶11 Under Count 1, the District Court gave Norman a five-year deferred imposition of sentence. Under Counts 2 and 3, the court sentenced him to two five-year terms at the Department of Corrections, both suspended, to be served concurrently with each other and consecutively to the sentence under Count 1. Furthermore, the court revoked, for the remainder of his lifetime, Norman‘s privileges to hunt, trap, and fish, and the court also ordered that he may not accompany any hunter, angler, or trapper in the field.
¶12 Issue 1. Did the District Court improperly instruct the jury?
¶13 We generally review jury instructions in a criminal case to determine if, when taken as a whole, they fully and fairly instruct the jury on the applicable law. State v. Allen, 2010 MT 214, ¶ 22, 357 Mont. 495, 241 P.3d 1045. If the trial court has rendered instructions that are erroneous in some aspect, the mistake must prejudicially affect the defendant‘s substantial rights in order to constitute reversible error. State v. Archambault, 2007 MT 26, ¶ 14, 336 Mont. 6, 152 P.3d 698;
A. “Exceeds $1,000”
¶14 First, with regard to the statutory scheme under which he was charged in Count 1, Norman points out that if the value of the unlawfully possessed animal or animals does not exceed $1,000, then the offense is a misdemeanor. It is only when the value “exceeds $1,000” that the offense becomes a felony. See
¶15 Here, Norman observes that the so-called “Elements Instruction” for Count 1 did not include “exceeds $1,000.” Instruction No. 12 stated, in relevant part:
To convict a Defendant of Unlawful Possession of Game Animal, the State must prove the following elements:
1. that the Defendant possessed all or part of any game animal;
2. that the game animal was unlawfully killed, captured, or taken, whether killed, captured, or taken in Montana or outside of Montana; and
3. that the Defendant acted purposely or knowingly.
Norman contends, therefore, that the jury was not instructed on “the essential element of value,” including the underlying determination of each animal‘s “trophy” status, and thus the State was relieved of its burden of proving every element of the charge beyond a reasonable doubt and he was sentenced for the felony offense “without the jury specifically finding the essential element of value exceeding $1,000.”
¶16 As the State points out, however, Norman did not object in the District Court to Instruction No. 12. It is perhaps our most fundamental rule of appellate review that, with rare exception, we will not consider an issue or claim that was not properly preserved for appeal. State v. West, 2008 MT 338, ¶¶ 16, 19-20, 346 Mont. 244, 194 P.3d 683. To properly preserve an issue or claim for appeal, it is necessary that the issue or claim be timely raised in the first instance in the trial court. West, ¶ 16; see also State v. Ankeny, 2010 MT 224, ¶¶ 35-39, 358 Mont. 32, 243 P.3d 391. Accordingly, since Norman‘s trial counsel did not object to Instruction No. 12, Norman seeks review of this issue in either of two ways: pursuant to our inherent power of plain error review, or within the context of an ineffective assistance of counsel claim.
¶17 As to the former, this Court may discretionarily review claimed errors that implicate a criminal defendant‘s fundamental constitutional rights, even if a timely objection was not made in the trial court. State v. Finley, 276 Mont. 126, 137, 915 P.2d 208, 215 (1996), overruled on other grounds, State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. However, simply requesting that we exercise plain error review is not sufficient. In order to obtain review of an unpreserved issue under this doctrine, the appealing party must (1) show that the claimed error implicates a fundamental right and (2) “firmly convince” this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. State v. Taylor, 2010 MT 94, ¶¶ 14-17, 356 Mont. 167, 231 P.3d 79; see also Finley, 276 Mont. at 137, 915 P.2d at 215; West, ¶ 23 (the party must make a “threshold showing” that the claim meets any of the three Finley criteria).
¶18 Here, Norman has met the first requirement. His claimed jury instruction error implicates his fundamental right under the Sixth and Fourteenth Amendments to the United States Constitution, as interpreted in Apprendi, to have all facts which the law makes
¶19 As noted, Norman also raises this issue as the basis of an ineffective assistance of counsel claim. He asserts that by failing to object to the Count 1 Elements Instruction, his trial counsel‘s performance was deficient and, consequently, he was convicted and sentenced for a felony offense in violation of his rights under Apprendi. Under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Section 24 of the Montana Constitution, a person has the right to the effective assistance of counsel in all criminal prosecutions. Strickland v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 2063 (1984); Deschon v. State, 2008 MT 380, ¶ 18, 347 Mont. 30, 197 P.3d 476. A convicted defendant making a claim of ineffective assistance must show that counsel‘s representation was deficient—i.e., that it fell below an objective standard of reasonableness measured under prevailing professional norms. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65; Whitlow v. State, 2008 MT 140, ¶¶ 10, 20, 343 Mont. 90, 183 P.3d 861. In addition, the defendant must show that the deficient performance prejudiced the defense. Whitlow, ¶ 10. Both prongs must be satisfied in order to prevail on an ineffective assistance of counsel claim. Thus, if an insufficient showing is made regarding one prong, there is no need to address the other. Whitlow, ¶ 11.
¶20 Before we may reach the merits of an ineffective assistance of
¶21 Here, Norman‘s claim may be resolved on the record before us. Even assuming, for the sake of argument, that counsel should have objected to Instruction No. 12 because it did not identify “exceeds $1,000” as a specific “element” under Count 1, Norman has failed to show prejudice from this omission. As just discussed, the verdict form reflects that the jury made the requisite “exceeds $1,000” finding which authorized the District Court to sentence Norman for the felony offense. Thus, it cannot be said that the trial judge “inflict[ed] punishment that the jury‘s verdict alone [did] not allow.” Blakely, 542 U.S. at 304, 124 S. Ct. at 2537. Having failed to show prejudice, Norman‘s ineffective assistance of counsel claim relating to Instruction No. 12 fails. Whitlow, ¶ 11.
B. “Same Transaction”
¶22 Norman‘s next challenge to the jury instructions also relates to Count 1. Again, he was charged under this count with purposely or knowingly possessing two buck mule deer, one antelope, and one bull elk which had been unlawfully killed. The State alleged that he possessed these animals between May 8 and 22, 2007, and that their value exceeded $1,000. As noted above, the value of game animals that are unlawfully possessed “as part of the same transaction ... may be aggregated in determining the value.”
conduct consisting of a series of acts or omissions that are motivated by: (a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective; or (b) a common purpose or plan that results in the repeated commission of the same offense or effect upon the same person or the property of the same person.
¶23 Norman objected to these two instructions on the ground that the animals listed in Count 1 were not part of the “same transaction” because they had been killed on different dates and, thus, represented
¶24 Norman first contends that because “same transaction” was not included as an “element” in the Count 1 Elements Instruction, the State was relieved of its burden of proving beyond a reasonable doubt that all four animals listed in that count were part of the “same transaction,” thus violating his rights under Apprendi. Yet, while he objected to Instruction Nos. 23 and 24 in the District Court, Norman did not raise Apprendi as the basis for that objection. It is well-established that, on appeal, a party may bolster his preserved issues with additional legal authority or make further arguments within the scope of the legal theory articulated to the trial court, but may not raise an entirely new legal theory. See State v. Montgomery, 2010 MT 193, ¶¶ 11-12, 357 Mont. 348, 239 P.3d 929. Accordingly, we will not consider Norman‘s arguments under Apprendi.
¶25 Alternatively, Norman reiterates his argument in the District Court to the effect that Instruction Nos. 23 and 24 did not adequately define “same transaction,” but instead created confusion, in light of the way the animals were grouped. As before, he again suggests that the groupings were improper because none of the animals were “taken” as part of the same transaction. Notably, he argued this theory to the jury:
Now, when you look at the verdict form that the prosecution just explained to you, they are grouping Counts 1, Counts 2 and Counts 3 into groups and they are calling them the same transaction because they are similar acts that have happened over time. In fact, you can apply your own common sense to what a
transaction like that is. You can look at the definitions of it. But really what is the same transaction? I mean these are kills on different dates, different types of animals, different methods of killing, so the State wants you to believe these are all same type transactions, and the reason they want to do that is because that way the law says you can group the values of the animals together to aggregate to make them over a certain amount of money which of course affects other things. So use your common sense with that.
¶26 Norman‘s arguments in the District Court and on appeal, however, misstate what the jury had to decide. He was not charged with unlawfully killing or taking wildlife. He was charged with purposely or knowingly possessing wildlife that had been unlawfully killed or taken. Thus, the question was not whether the animals had been taken as part of the “same transaction.” It was whether the animals had been possessed as part of the “same transaction” during the specified time period. We agree with the State that this was a factual matter for the jury to decide, and we note that Instruction No. 24 provided a definition of “same transaction” that tracked
¶27 Norman also suggests that grouping the animals as part of the “same transaction” in order to obtain a felony conviction was improper. This contention is without merit. As noted, the prosecutor grouped the four animals under Count 1 based on the dates of alleged possession and because
¶28 We conclude that none of Norman‘s “same transaction”
C. Special Instruction A
¶29 Lastly, during their deliberations, the jurors submitted the following question, in writing, to the court:
Do we need to find the individual guilty of each offense within a Count in order for the individual to be guilty of that Count?
For example, if the individual is guilty of 2 of 3 offenses, is the individual guilty of the Count or must it be unanimous within a Count (i.e., 3 of 3 offenses)?
¶30 This question related to the fact that the verdict form was laid out as follows:
COUNT 2: To the charge of Possession of Unlawfully Taken Wildlife, committed on or about and between November 1, 2004 and November 30, 2004:
____________________ (Write on the above line “Guilty” or “Not Guilty“)
If the verdict is “Not Guilty,” your duty is completed. You need go no further. Date and sign this Verdict.
If the verdict is “Guilty,” identify the animals illegally possessed by writing “Guilty” before the animals unlawfully possessed:
__________ 2004 Cow Elk;
__________ 2004 Goligoski Buck;
__________ 2004 Boden Buck.
If the verdict is guilty, the total value of the animals illegally possessed is:
__________ $1,000 or less; OR
__________ Over $1,000.
(Mark the applicable amount.)
Counts 1 and 3 were laid out in the same format.
¶31 As noted, the jurors indicated that they were uncertain about whether they had to find Norman guilty of each “offense” within a given count in order for him to be guilty of that count. Thus, upon receiving the jury‘s note, the parties convened in chambers and the prosecutor proposed that the jury be instructed: “If by ‘offense’ you mean acts related to a particular animal, the answer is that you need to find the Defendant guilty regarding only one animal to find him guilty of the count.” In response, defense counsel observed: “That‘s true. I can‘t think of any—that‘s plain and clear. I can‘t think of any other to say.” The District Court then typed up the prosecutor‘s proposed language as Special Instruction A and sent it to the jury.
¶32 Norman opines that by allowing the jury to find him guilty of a given count based on his guilt of unlawfully possessing only one of the animals listed in that count, Special Instruction A “effectively permitted the jury to convict [him] of three felony Counts that very possibly did not amount to felonies at all.” He therefore asserts that this instruction “constituted a sentence enhancement based on facts not found beyond a reasonable doubt by the jury, directly in violation of the principles expounded in Apprendi and its progeny.” As before, because trial counsel did not object to this instruction, but in fact expressly agreed with it, Norman again requests plain error review and, in the alternative, raises an ineffective assistance of counsel claim. See ¶ 16, supra. For the reasons which follow, however, we are not persuaded that there was an Apprendi violation.
¶33 Special Instruction A instructed the jurors that they needed to find Norman guilty regarding only one animal in a given count in order to find him guilty of that count. This was a correct statement with regard to Count 1. If a person possesses all or part of any game animal that was unlawfully killed, captured, or taken, then he is guilty of violating
¶34 With regard to Counts 2 and 3, however, Special Instruction A
¶35 Nevertheless, Norman‘s claim fails because the jury ultimately found him guilty with regard to multiple animals under each count. Specifically, he was found guilty of unlawfully possessing all four animals under Count 1 (two buck mule deer, one antelope, and one bull elk), and thus he was guilty of unlawful possession of a game animal as defined in
¶36 Consequently, Norman has not demonstrated that his counsel‘s failure to object to Special Instruction A prejudiced his defense by virtue of an Apprendi violation. Under Apprendi, a judge may not impose a sentence that is greater than the sentence which the law authorizes under the facts admitted by the defendant or found by the jury beyond a reasonable doubt. See Cunningham v. California, 549 U.S. 270, 281-84, 127 S. Ct. 856, 863-65 (2007). “When a judge inflicts punishment that the jury‘s verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his proper authority.” Blakely, 542 U.S. at 304, 124 S. Ct. at 2537 (citation and internal quotation marks
¶37 Issue 2. Did Norman‘s trial attorney render ineffective assistance of counsel?
¶38 The basis of Norman‘s ineffective assistance of counsel claim is that
by failing to object to an incorrect Elements Instruction and agreeing to the Special Instruction, counsel effectively allowed the jury to convict Norman of a felony without the jury having to find him guilty of each offense under each Count. Essentially, Norman‘s counsel agreed to Instructions that allowed the jury to increase the penalty against Norman without a corresponding finding of guilt by the jury for such an increase.
We have already addressed and rejected this claim within the context of the discussion under Issue 1. See ¶ 21, ¶¶ 35-36, supra.
CONCLUSION
¶39 As stated at the outset, we review jury instructions in a criminal case to determine if, when taken as a whole, they fully and fairly instruct the jury on the applicable law. Here, we conclude that, as a whole, the instructions and the verdict form fully and fairly instructed the jury on the applicable law. But more to the point of Norman‘s arguments, we conclude that he has failed to establish he was given felony sentences, in violation of Apprendi, based on facts that were not found by the jury beyond a reasonable doubt.
¶40 Affirmed.
JUSTICES WHEAT, COTTER and LEAPHART concur.
JUSTICE MORRIS specially concurs.
¶41 I concur with the Court‘s decision to affirm Norman‘s conviction for the reasons stated in the Court‘s opinion. I write separately to raise concerns with the notion that the District Court need not instruct the jury regarding the value of the unlawfully taken game animals as an element of the offense, and that the State need not present evidence of the value of the unlawfully taken game animals in light of the fact that
¶42 The Fifth and Fourteenth Amendments to the U.S. Constitution and Montana Constitution Article II, Section 17, proscribe any deprivation of liberty without due process of law. The Due Process Clause protects a defendant from conviction until the prosecution proves beyond a reasonable doubt every fact necessary to constitute
¶43 The jury convicted Norman of three separate felonies of unlawfully possessing game animals that had a value in excess of $1,000. Whether the unlawfully possessed animals’ value exceeded $1,000 constituted an essential element of Norman‘s felony offense.
¶44 The State concluded in its closing argument, “[W]e‘ll give you the value of each animal. You heard the Court read them. That‘s all set by statute.” The State cited no authority in its brief, however, to support the proposition that a legislature may make a statutory finding that removes the jury‘s duty to assess all the facts that would increase a criminal defendant‘s conviction. Apprendi, 530 U.S. at 490. I am aware of no authority to support this approach and I would question its validity in a future case in which an appellant properly preserves the issue.