*1 STATE OF MONTANA, Appellee, Plaintiff and LEE-RAY RUSSELL, RUSTY Appellant. Defendant No. DA 06-0767. Argued April 2008. April Submitted 2008. Decided December 2008. MT
¶2 Russell’s motion to denying I. Did the District Court err ¶3 assault, where his his conviction for dismiss on the same assault? predicated conviction was constitutionally II. of Russell’s trial counsel performance Was the ¶4 deficient? verdict right jury to a unanimous Was Russell’s constitutional III.
violated?
BACKGROUND his friend Brandon 25, 2005, Russell and Monday night, April On Wolf’) drinking way their evening spent (“Spotted Wolf Spotted people convinced two they underage, they Billings. Though were across they drank in various whiskey, buy couple which them bottles evening. over the course private in a residence alleys back Saint outside the they found themselves Early morning, next Henry Rideshorse Store, they ran into Thrift where De Paul Vincent (“Rideshorsе”). boys had about vodka; had Rideshorse bottle the two bottles decided share whiskey They left. half a bottle of alley behind the them, and moved into back amongst the three of by police. being seen could drink without they where thrift store store, loading docks behind the several transients were Near men, sleeping one of the Dale sleeping. Spotted approached Wolf Wallin, money or alcohol from Spotted Wallin. Wolf demanded but gave Spotted Russell a knife and it to respond. Wallin did not drew face, gave Wolf slashed Wallin’s the knife to Russell Spotted Wolf. back said, of, man, you’re “Show me what made me you show what can do.” Russell took the knife and stabbed Wallin several times in the back. alley, turned and walked further into back still transient, Gewanski,
holding the knife. There he another saw John sleeping dumpster. Spotted next Both Rideshorse and Wolf they Gewanski, approach testified that saw Russell and heаrd noises, make if grunting being Gewanski several as he punched were conflicting stabbed. record contains evidence as to whether or not Spotted joined assaulting Wolf Russell in Gewanski. Blood from both victims Spotted was found on both Russell’s and clothing. Wolfs Gewanski sustained numerous stab wounds and died in the makeshift shelter where had been sleeping when he was attacked. Spotted Russell and Wolf their Wallin, turned attention back to began attacking again. him Rideshorse intervened tried to
protect punched Rideshorse, Wolf, Wallin. Russell Spotted said to guy, “Let’s do this Spotted man.” Wolf testified that he convinced Rideshorse, Russell not to kill and the two fled the scene. Rideshorse helped feet, to street, Wallin his ran flagged police to down a help. meantime, car for In the Wallin stumbled several blocks to the Mission, Rescue where he hospital. was taken to the Wallin survived multiple his stab wounds. Spotted morning, Wolf was found passеd
¶10 the next out with a blood exceeding alcohol level 0.3, clothing, bloody blood his and a knife in pants. his hospital He was taken to the and treated for alcohol poisoning, by and later apprehended police arrested. Russell was following day. Spotted pled guilty Wolf to one by ¶11 count of deliberate homicide accountability, aggravated assault, one count one count of robbery. exchange plea testimony, for his Wolf Spotted received a reduced sentence. Russell was
¶12 with four offenses: deliberate homicide of Gewanski, aggravated Wallin, robbery assault accountability, aggravated by accountability. assault Gewanski 45-5-102(1)(b), The charge deliberate homicide was brought under MCA, felony statute. The homicide information identified the felony for underlying felony as the
aggravated assault Wallin charge. homicide at his trial. When asked Spotted against Wolf testified Russell
¶13 Wallin, “I why Spotted replied, attacked Wolf don’t and Russell know, because were drunk.” trial, that the court requested specifically At the close of Russell that, if convicted Russell of homicide jury they
instruct the deliberate they agree particular all on the theory, homicide must instruction, Court refused the act or acts he committed. The District general unanimity jury instruction instead. The found but issued guilty Russell on all four counts. for sentencing, Prior to Russell moved to dismiss his conviction argued that his conviction resulted in
aggravated assault. Russell II, of Article Section 25 multiple punishments violation The Court denied motion Montana Constitution. District Russell’s dismiss, suspended, for eighty years, with ten and sentenced Russell years for Russell also received ten each homicide. sentence, counts, consecutively eighty-year to run with the remaining concurrently but with each other.
DISCUSSION motion to by denying I. the District Court err Russell’s Did assault, aggravated for where his his conviction dismiss on thе same assault? predicated homicide conviction in a denial of a motion dismiss We review a district court’s Burkhart, MT ¶ criminal case de novo. grant refusing that the District Court erred argues Russell his conviction for assault.
his motion dismiss charge on the for predicated I was charge Count Thus, asserts, underlying II. in Count aggravated assault merged been felony in Count II should have refusal that the District Court’s charge in Count I. Russell claims placed him in double dismiss his conviction charge-a prohibited result aggravated assault for the same jeopardy *4 II, of Montana Constitution. by Article Section 25 the jeopardy a double issue frames the issue as Although Russell ¶19 Constitution, have “we the Montana II, Article Section 25 of issues should avoid constitutional that courts recognized repeatedly 90, 18, S.H., ¶ re 2003 MT ¶ possible.” whenever Court erred the District Here, determining whether P.3d 18. ¶ II be failing through application in to dismiss Count can resolved 46-11-410(2)(a) 46-1-202(9), procedure our code of criminal §§ MCA. 46-11-410, MCA, states, pertinent part, Section in as follows:
(1) may the same transaction establish When the commission offense, charged than a person may more one with the conduct prosecuted each offense.
(2) not, may however, A defendant be convicted of than more one if: offense
(a) one offense is included the other .... 46-1-202(9), MCA, Section defines “included offense” as follows: “Included offense” means an offense that: (a) by proof is established of the same or less than all the facts required to charged establish commission of the offense .... 46-1-202(9)(a), As used in MCA, the term § “facts” refers to the statutory offense, elements not the individual facts of the case. Beavers, 260, 30, 296 1999 MT ¶ Here, charged Russell was homicide under 45-5- § 102(1)(b), Felony MCA. homicide be accomplished can by multiple means under the statute.
A person commits offense of deliberate homicide if ... the person attempts сommit, commits, legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, escape, felonious assault weapon, aggravated with a assault, or any other forcible the course of the forcible flight thereafter, person or any person legally accountable for the crime causes the being. death another human 45-5-102(1)(b), Section MCA. myriad possible The statute lists a predicate robbery, felonies: consent, arson, sexual intercourse without burglary, kidnapping, by so on. The State information with 45-5-102(1)(b), MCA, deliberate homicide under identified the predicate felony. assault as The court defined the felony charge to include assault in its instructions jury. charge, Russell, Thus the as applied included aggravated assault as an element homicide. At argument, oral State conceded that same evidеnce was used to prove II, the stand-alone aggravated charge in Count the predicate felony upon charge relied in the Count I. An offense is an included offense if “is proof it established *5 required the or less than all the facts establish the
of
same
46-1-202(9)(a),
charged....”
the
Section
MCA. In
commission of
offense
homicide,
is,
felony
predicate
context of
offense
of
unique
offense,
felony
as well as an element of the
necessity, an included
case,
is
applied
aggravated
As
in this
assault
both an
homicide itself.
felony
an
of
included offense and
element
homicide.
46-11-410(1)-(2)(a), MCA,
may not ... be
Under
“A defendant
arising
“the same
of more than one offense”
out of
convicted
otherAssuming
is included in the
that
transaction” if “one offense
killing
part
and the
of
were
of the
the assault on Wallin
Gewanski
46-11-410(2)(a), MCA,
transaction,1
Russell’s
then under §
same
felony
aggravated
precludes
homicide
a conviction on
conviction
II.
charge
Count
dissent,
on our 1981 decision in
heavily
In his
Justice Rice relies
(1981).
Close, 191
¶29 homicide is death, by life imprisonment, by imprisonment for a term of not less years than 10 years. or more than 100 hyperbolic The dissent’s “free pass” argument ignores the fact that where the felon is sentenced to death or life in prison homicide, any for punishment additional underlying felony for the would practical have no effect. Accordingly, refusing ¶30 we hold that the District Court erred in to dismiss Russell’s for aggravated conviction Count II. II. Was the performance of Russell’s trial counsel constitutionally deficient? argues his trial counsel’s failure move to exclude
Henry testimony Rideshorse’s constituted ineffective assistance of counsel. A claim of ineffective assistance counsel mixed presents questions Herman, law fact which we de novo. v. review State 187, 10, 494, 10, 978, MT 343 Mont. 188 P.3d 10. ¶ ¶ ¶ To performance determine whether constitutionally counsel’s dеficient, we apply adopted by test two-prong the United States Supreme 668, Washington, Court in Strickland. Strickland v. 466 U.S. State, 140, 10, 2052, 2064 (1984); v. MT
687, 104 S. Ct. Whitlow ¶ 90, 10, 183 861, Before apply 343 Mont. P.3d 10. Strickland ¶ ¶ determine however, the ineffective test, we must first whether Germain, claim is or not. State v. St. assistance of counsel record-based 34, 591, 34, 336 Mont. 34. Claims 2007 MT ¶ ¶ ¶ are ill-suited for direct involving frequently “omissions trial counsel 160, 10, 168 appeal.” Meyers, 2007 MT ¶ ¶ State testimony object may 10. While the failure to a witness’s ¶ appeal, for on direct appropriate be record-based and thus resolution failing to commonly record not reflect counsel’s reasons for does object. Germain, “[i]f St. 35. We have held that the record does not evidence, why object to explain counsel failed to the admission of fully Germain, postconviction proceedings.” the matter best St. suited Here, moved to lawyer Russell asserts that his should have testimony. He that Rideshorse was not exclude Rideshorse’s contends heavily night intoxicated the to be a witness because was competent disability. a mental crime, potentially suffered from At as a witness. not move to exclude Rideshorse Russell’s counsel did his alcohol use trial, counsel Rideshorse about defense cross-examined night attempt the crime in an and level of intoxication subject alleged him, did broach the of Rideshorse’s impeach but disability. mental claim, prevail an ineffective assistance of counsel In order *7 an performance “fell below must show that his counsel’s appellant prevailing
objective of reasonableness measured standard light surrounding circumstances.” professional norms and in fully surrounding Whitlow, Here, explain 20. record does not ¶ to move to exclude circumstances, why defense counsel failed including trial, testimony. and without the court’s Prior Rideshorse’s court the district defense counsel caused permission knowledge, hospitals tecum to several subpoena clerk to issue a duces for an then moved the court records. Counsel Rideshorse’s medical motion, ordered The court denied in-camera review of records. immediately, the court to turn the records over to counsel within referencing any information contained from prohibited counsel “bungled alleges that his counsel’s trial. Russell the records his prejudiced medical records Rideshorse’s attempts” to obtain moving Rideshorse’s to exclude him from by preventing defense alleged to as his testimony cross-examining Rideshorse and from why defense fully explain The record before us does disabilities. this of action or particular why counsel took course counsel failed to object testimony. Rideshorse’s This issue is best suited for review in post-conviction proceeding permit a which will further inquiry into prejudice. matter. We dismiss this issue without right III. Was Russell’s jury constitutional a unanimous verdiict violated? At trial, the close Russell offered the following jury
instruction, by which was refused the District Court:
The is defendant offence [sic] Deliberate Homicide/Felony may murder. The Defendant guilty found if beyond proof shows a reasonable doubt the Defendant any acts, committed one or more of such but in order find the guilty, Defendant jurors agree all the must that the Defendant committed the same particular act acts. The act or acts agreed upon committed so [sic] be states the verdict. Instead, general the District Court unanimity delivered a instruction: requires jury law verdict in this case to be unanimous.
Thus, all twelve of you agree must in order to reach a verdict whether the guilty guilty. verdict be or not Russell claims he was to specific unanimity entitled instruction case, and that the District Court erred refusing give his proposed instruction. We jury review instructions in criminal cases to determine instructions,
“whether the whole, fully as a fairly jury instruct the applicable the law Swann, to the case.” State v. 126, 32, 2007 MT ¶ 326, 32, Mont. 32. A ¶ district court has broad ¶ discretion when it instructs jury; our review of a district court’s decision regarding jury instructions to determining confined whether the Swann, court abused its discretion. 32. ¶ A criminal right defendant’s to a jury unanimous verdict is protected by II, Article Section 26 of the Montana Constitution. State Vernes, 32, 21, 2006 MT 129, 21, 130 21; ¶ P.3d ¶ ¶ Weaver, 58, 26, 1998 MT ¶ ¶ Vernes, In 26. we explained: “Unanimity means more than an agreement that the defendant has violated the statute in it question; requires agreement substantial the principal factual elements underlying specific Vernes, offense.” argues Weaver, that like the defendant is entitled to
a specific unanimity Weaver, instruction. the defendant was *8 convicted spanned of two counts of sexual assault for acts which a period count, for years five months one and five for the other count. convictions,
Weaver, 8, 13. and held that the We rеversed ¶¶ jury that it specifically court have instructed the had district should specific underlying act of verdict as to at least one reach “a unanimous Weaver, 40. The for each count.” instructions sexual assault more one unlawful faulty alleged each count than Weaverwere because Weaver, risk that the conviction act, and so there was a ¶¶ jurors concluding a that the defendant as result of “different occurred Vernes, 23. different unlawful acts....” committed evening of urges occurring April the events Russell us view first, consisting separate two attacks: the assault on Wallin, second, implies that the the homicide of Gewanski. charge him with two distinct felony improperly charges homicide a conduct, and that such result is crimes as a continuous course of case, by however, distinguishable prohibited Weaver. The instant spanned attacks the course of Weaver. While Weaver’s sexual from months, night. in one place unlawful acts all took several Russell’s Wallin, moved on at trial that Russell assaulted Rideshorse testified Gewanski, his on Wallin. The assault and and then resumed attack alley, only away from feet homicide took same back place necessarily involves homicide Although each other. count reject the underlying felony-we or more crimes-homicide and the two charge automatically warrants that implication unanimity instruction. specific unanimity case, specific no instruction the instant Gewanski,
necessary. To convict Russell underlying felony-the guilty the prove that Russell was State had clearly The court’s instructions assault of Wallin. clearly identified the elements established felony. underlying as the aggravated assault of Wallin remaining three respect The court’s instructions crime, and were respective each each element of counts also identified District given by the that the instructions clear. We conclude equally jury applicable on the law fully fairly instructed Court abused its the District Court such, say As cannot case. unanimity refusing proposed specific Russell’s discretion instruction.
CONCLUSION Russell’s motion denying order the District Court’s We reverse assault was Aggravated assault. his dismiss conviction 45-5-102(1)(b), MCA, homicide under included element of an *9 II, applied and in this case. Article Section 25 of the convicting prohibits Montana Constitution the State from and again Accordingly, for the same punishing Russell assault. Russell’s conviction for Count II we vacate under the information. We that District of conclude Court did not abuse denying specific unanimity jury its discretion in proposed Russell’s Finally, instruction. Russell’s ineffective assistance counsel claim is record-based, prejudice. not thus dismiss it without COTTER,
JUSTICES WARNER and MORRIS concur. NELSON, concurring part dissenting JUSTICE in and in part. II, generally agree I, I While Court’s resolution of Issues III, I join cannot the Court’s disposition aрpeal. ultimate this I) (Count view, my Russell’s conviction is invalid. I, I Consequently, would reverse his conviction under Count affirm his assault), conviction and sentence under II (aggravated Count and not reach the jeopardy unanimity double claims addressed I III, Court under Issues respectively. is necessary It at the outset acknowledge the Court’s assertion
that this issue was not raised briefed in appeal. Opinion, this 25¶ only n. 1. partly This is true. in argument Russell does assert his III killing Issue that assault on and the Wallin of Gewanski were separate acts,” “two not “a continuous course of conduct.” Opinion, See fails, however, develop result, 41. He a point. argument ¶ As his is deficient concerning under this Court’s rules appellate briefs. See App. 12(1)f.; Miller, M. 106, 15, R. P. see also State v. 2008 MT 342 ¶ 355, 15, 625, Mont. 181 P.3d (Conclusory 15 assertions are ¶ “a ¶ Court.”). wholly inadequate presentation of an issue to this hand, On the during argument other Russell asserted oral that a Furthermore, homicide had not ocсurred in this case. response Court, follow-up question to a explained: from the Russell “I that, therefore, think the on Mr. completed assaults Wallin were the assaults on the asleep alley second individual who was down the a place in different were not ‘in the course those assaults.” Russell emphasized that position this would his if he permitted were (This argue classifying it. Court’s order argument case for oral issue.) limited the parties’ arguments jeopardy to the double procedural But even if Russell misstep challenging committed a validity conviction, of his this Court has stated “ that ‘a serious error which appears [the] on the face record is reviewable, although presented by parties’ ignoring if the error injustice.” Andersen-Conway, would cause substantial (brackets 171 P.3d ¶ MT ¶ 29, 51, Andersen-Conway) (quoting Kudrna Corp., v. Comet (1977)). Andersen-Conway We concluded in that it sponte,” decide issue sua necessary dispositive to “raise and fаcially a pursuant “incarceration of an individual invalid since wrong, miscarriage justice that represents grievous and a sentence procedurally even if the defendant is otherwise barred.” warrants relief same be said here: Incarceration of Andersen-Conway, can contrary to the that pursuant plainly conviction miscarriage represents grievous wrong, and a and the law evidence procedurally warrants relief even if is otherwise justice raising point. from barred Indeed, by this compelled of Russell’s claim is Court’s review
“overriding obligation acknowledge protect substantial *10 87, 13, 427, Carter, MT 326 Mont. rights litigants.” State v. 2005 ¶ 13, obligation that we not turn 1001, P.3d 13. This mandates 114 ¶ ¶ simply appellate counsel eye a blind to an invalid conviction because bungled challenge underdeveloped procedurally mounted an question which fact, may consider a point In this Court thereto. “if to a substantial barred it relates procedurally otherwise would Dept. v. Labor right litigant.” fundamental Wolfe 338, 340 (1992); Carter, 336, 339, 843 P.2d accord 255 Mont. Industry, 40, 42, Sodding Service, Mont. 744 13-14; v. Cottrill 229 Cottrill ¶¶ Co., 332, 237 Mont. 895, 896 (1987); Eastman v.Atlantic P.2d Richfield 126, Mont. 862, (1989); Finley, v. 276 865 see also State 777 (1996) (discussing power Court’s “inherent 137, 915 P.2d Constitution and to obligation interpret Montana’s paramount document”), overruled in rights set forth in that the various protect 39, 21, 304 Gallagher, MT v. grounds, ¶ on other State part us, it Here, plain the record before is 215, 21, 19 P.3d on that it right process is at issue and fundamental to due that Russell’s validity therefore, legal necessary, this Court to consider for is conviction. theory was the State’s prosecuting Russell of’ the assault occurred “in the course the death of Gewanski that 45-5-102(1)(b), prosecutor specifically, MCA. More Wallin. Section against Wallin and aggravated alleged that Russell committed flight Aggravated Assault or offense of course of the “then in the [Gewanski], using thereafter,” “stabbed, or otherwise assaulted cut theory This causing his death.” edged weapon, a knife or othеr legal factual or basis law, there is no matter of as flawed as a supporting proposition whatsoever that death of Gewanski was causally contrary, related to the assault on To the Wallin. the evidence contends, suggests, entirely that these were two distinct events. According testimony trial, to the Spotted Wolf slashed Wallin’s
face and Russell stabbed Wallin several in the times back. The two alley. then left Wallin and proceeded through Spotted east As Wolf explained response to questioning prosecutor:
A. We were much pretty just going go around to the other the building] just [of side out leave Side. I North said-well, you know, we found out it was right blocked off there (indicating).
Q. And happened what then? stopped-well, you know, A. We stopped by we garbage that can or that dumpster thing.
Q. Okay. happened What then? Well, you know, just for, A. stopped you know, we long, not too just then, know, stood there and you herе, [Russell] went over and I was-you know, don’t know what he doing, he was he was hitting person. another
(The Gewanski.) person other Thereafter, easterly because their blocked, route was Spotted Russell and proceeded Wolf back to where Upon him, Wallin was. reencountering they hittingWallin both started again-apparently for no reason other that just than “we were drunk.” is long-established It in Montana “for felony-murder rule to apply a causal connection between the felonious act and the death must be present.” State rel. Murphy McKinnon, ex v. (1976); accord Top, State Lester Kills on *11 387, (1990). 378, 336,
Mont. 787 P.2d 342 Murphy, noted “with we approval” following guidelines the to applicability felony- as the of the murder rule: felony-murder
“For the apply, necessary rule to it is the homicide be a natural probable and the consequence of commission or attempt felony; commit the that the homicide be so closely connected with such other crime as be within the res gestae thereof; or the natural necessary result of the unlawful * * * act; or that it one be causes.
“Something more than a mere coincidence time and place between the wrongful necessary. act death is It must appear that legal there was such actual relation between the 314 attempted killing the crime committed or that the can
killing and
crime,
part of the
ofthe
perpetration
be said to have occurred as a
to commit it.”
attempt
purpose
or in furtherance of an
126-27,
at
(quoting
“The of homicide and is not mere coincidence felony-murder doctrine. ‘It is satisfy requirements of the causing in necessary... that the conduct death was done show fеlony. commit the Death must design furtherance of the ” merely . . and not coincidence.’ consequence of . (quoting 569 Commonwealth Weinberger, 206 Mont. at P.2d at Redline). (Pa. 1958)) Redline, (ellipses v. 137 A.2d 476 in order to establish Accordingly, we have said that “an prove outgrowth that the death was the State must felony] an [predicate itself and related [predicate] 292, 307, 609 Sunday, 187Mont. chain ofcausation.” State unbroken (1980). 45-2-201, MCA, in also relied on P.2d We have relationship” that must be shown in order articulating the “causal 114-15, e.g. Weinberger, 206 Mont. at prove felony homicide. See Turner, 569; 984-85 P.2d at (1994). states, is the cause of part: “Conduct pertinent This statute not have occurred.” without the conduct result would result if... omitted). 45-2-201(1)(a), MCA break (paragraph Section above, charge as stated Given the law at trial. As a matter by the facts established supported this case is not allegations out under Count fact, by the set supported it is not even Indeed, no simply Amended there is causal I Information. of the Wallin and the assault on connection at all between completed Wolf their assault Spotted death of Gewanski. Russell [of the go to the other side They decided “to around then Wallin. east end however, through the leave”; passage their building] just turn around leave But rather than alley was blocked. entered, they “just they had alley where through the west end of Obviously, know, long, [they] just stood there.” for, you not too stopped Section on Wallin. “flight” from assault cannot be construed and killed 45-5-102(1)(b), Russell attacked point, MCA. At that Thereafter, dumpster. next to a Gewanski, sleeping had been who up and ended back to where Wallin was Wolf walked Spotted *12 again. assaulting him may “the While these events constitute same transaction” 46-11-410(1), MCA, they support of the
purposes proposition do § aggravated the causal connection existed between assault no Wallin and the death Gewanski. death of Gewanski was in or way probable consequence” necessary “a natural and “the natural or result” of the assault on Wallin. Nor can it be that “the said conduct causing design death done in furtherance of the the commit [aggravated assault]” or that the “occurred killing part as a the [aggravated assault], perpetration in furtherance of an commit attempt purpose it.” [a] “The mere coincidence of homicide and [a forcible] is not
enough
satisfy
requirements
the
felony-murder
the
doctrine.”
(internal
Weinberger, 206 Mont. at
at
quotation
omitted).
marks
“Something more than a mere coincidence of time and
place
wrongful
between
act and the
necessary.” Murphy,
death is
(internal
omitted).
at
Mont.
§ death Gewanski and 45-5-202(1), MCA, bodily assault under for the injury serious inflicted on Wallin-then the State would have two convictions for two separate however, it is, acts. As under the Court’s resolution Issue I, only the State has one conviction for the two acts. 46-11-410(2)(a) sum, MCA, 46-1-202(9)(a), would §§ if charge on the
preclude Russell’s conviction lawfully charge. Opinion, 20- were convicted on ¶¶ charge supported But is not because trial, alleged by prosecutor proved I conclude that facts *13 Thus, I charge can stand. would reverse the I his under Count and affirm conviction Russell’s conviction II. under Count sentence I concur dissent.
¶61 RICE, dissenting.
JUSTICE may surprise Court’s decision come as a to both well case, litigated the the Throughout parties and the State. this have jeopardy clause of the Montana issue raised—whether the double sentencing for both murder Constitution conviction and barred However, subjеct lays aside the underlying felony. and the the Court litigation premise the based upon matter of this and decides case during mentioned the course this case. There which has never been 46-11-401, MCA, the no in District reference whatsoever of § Court, party filed with this and neither appellate Court or in the briefs argument University on the during it the oral we conducted discussed tower, ivory to the However, retreat the campus. upon of Montana who have observed our many people has recast the case. The Court “Oh, it say, this that’s how proceedings and watched case can now works!” justification that we “avoid constitutional The Court offers the However, judicial self- possible.” principle
issues whenever by deciding us to constitutional issues permit does not avoid restraint forage about for issues not on issues not raised. We are not cases claim the to avert consideration a constitutionаl argued in order Thus, it is not proceeding. within the parties validly have raised raised in this case. The the constitutional issue avoid “possible” by Justice Nelson’s of an issue addressed rejects Court consideration issue was not raised or briefed and Dissent “that Concurrence because pot calling the kettle expression about the appeal.” in this The old mind. black comes to litigant, here fundamentally any unfair to approach The Court’s raised, prevailed the issues State, upon who has defended case again upon the Court, argued appeal the case on the District then has ever party an neither raised, only lose the case on issue
issues had no it litigation-and which during the course mentioned brief, argue, or defend. opportunity to I raised, briefed, argued, am turning to the issue Before briefly in the compelled point analysis. out errors Court’s Perhaps consequence addressing as a an issue which has not been parties, Court, my opinion, researched and briefed misapplies important precedent. statutes and overturns The Court 45-5-102, MCA, statute, attempts jam murder into 46- § § 1-202(9), MCA, general offense, definition lesser included order to conclude that knifing Russell cannot be convicted for both killing 46-11-410, MCA, Wallin Gewanski under because these necessarily crimes are It included within the other. is clear that the Legislature result-indeed, did not intend such a we have so held. These met crimes the criteria for fulfillment of special purposes losing murder statute without separate their distinctness as crimes. 45-5-102(1), MCA, Section provides as follows: (a)
A person commits the offense of deliberate homicide if:
person purposely
knowingly
or
causes the death
another human
(b)
being;
person
attempts
commit, commits,
legally
or is
accountable for the
attempt
robbery,
commission of
sexual
consent,
arson,
intercourse without
burglary, kidnapping,
*14
aggravated kidnapping,
escape,
felonious
a weapon,
with
aggravated assault,
any
felony
or
other forcible
in
and
the course
felony
of the forcible
flight thereafter,
the
or
person
any person
legally accountable for the crime causes the death
another
being.
human
added.)
(Emphasis
Both subparagraphs make it
deliberately
a crime to
cause the death of another person.
only
difference between
(a)
deliberate homicide under
and homicide
felony murder
rule
(b)
is
proof
the
Close,
mental state. As we
discussed
we
long
have
recognized,
days
from the
liability
when criminal
predominantly governed by
law,
common
the
principle
felony
the
whereby malice,
murder
murder,
required by
degree
first
“implied”
is
from commission of the underlying felony.
191 Mont. at
at 950. We noted in Close
“history
that this
of the common law and the
purpose behind
аre
important
laws
both
tools to
to
be used
determine
legislative
intent.” 191 Mont. at
Given this rationale for the murder it strains to credulity underlying felony merges hold that the felony into the murder. The statute proscribing underlying felony-robbery, for example-is designed protect wholly a different societal 318 statute, felony intended
interest
from the
murder
which is
underlying felony
an
protect against homicide. The
essential
only
felony
element of
murder
because without it the homicide
degree
manslaughter. Clearly,
murder or
neither
might be second
degree
merges
any
second
murder
other
manslaughter nor
escape.
robbery
assisting
prisoner
like
felony
Greene,
Close,
(citing U.S. v.
without so much as reconciliation, the Court concludes require to conflict and thus deemed punishments in multiple eliminated Legislature that the has somehow contrary in explanation careful cases-despite murder years contrary-by common law to the hundreds of despite Close generally addressing lesser virtue the enactment of the statutes agree. I multiple prosecutions. cannot Without included offenses so, holding our in Close that “statute repudiates the Court saying protect wholly designed ... is proscribing underlying statute, which is from the murder different societal interest against homicide,” merger that a two protect intended intention ignore Legislature’s manifest to serve would offenses Close, Mont. at 950- different interests. these two 1168-69). Greene, 489 F.2d at (citing held, is a view, murder rule have my *15 involving predicate to the homicide case applying statute specific legislative intent has interests. This felony, special and fulfills societal 46-1-202(9) 46-11-410, rejected by §§ enactment not been legislative intent and our only rejects not The decision MCA. Court’s stab one Russell could any it common sense-that precedent, defies I could not one sentence. only but be limited victim and kill another Legislature did not intend this result. be more confident that It admits that we dissent, up. the Court fesses to this response Close, contrary action-overruling held to the but then tаkes drastic necessary here, its support holding concluding “[t]he that Cióse— premise Thus, is basic Close rationale false.” the Court removes “stupefying leap” opinion by overruling precedent from its to fill gap. stupefying What remains is that the Court would overrule raised, longstanding precedent briefed, without being the issue argued. Reasoning that “a because defendant cannot commit the offense offense,” homicide without committing predicate felony holds, obliquely, predicate
Court that the always merge offense must with the homicide and under no circumstances can a defendant be punished for both It prosecutor crimes. blames the this for predicament, suggests charged that Russell should have been with charge, a stand-alone robbery should have been predicate course, used as the offense. Of under the Court’s approach, Russell could be punished robbery, never for the but more pоint, prosecution should be faced with choice. explained before, We have all of this simply which Court ignores. “The test for determining what constitutes same offense depending on whether the multiple case involves prosecutions differs multiple punishments imposed single prosecution ... Two statutory crimes that constitute ‘the same offense’ for purposes of multiple prosecutions necessarily do not constitute ‘the same offense’ purposes punishments.” for of multiple Close, 191 Mont. at added). (emphasis P.2d at 949 Close was with deliberate
kidnapping,
robbery
prosecution.
issue,
in a single
then,
“The
not one of multiple prosecutions
multiple punishments.
but of
whether,
issue is
statutory
scheme,
may
Montana’s
a defendant
be punished
for both
Close,
homicide and the underlying felony.”
245-46,
applicable
provisions.
indicate
general
intended to obstruct the
provisions
operation
that such
were
felony
statute,
grounded
years
the
which is
in hundreds of
murder
is
“If
justice:
of common law. The loser
a defendant wants
commit a
price.
a
a
wants
commit murder in
felony,
pay
he must
If defendant
felony,
felony
committing
to the
or in the course of
another
addition
Close,
higher price.”
must
protections of the completely applying when constitutional intent is irrelevant Legislature Rather, purposes we should look at the protections. permissible are purposes and then determine whether those intended This protections. constitutional was under and consistent with Guillaume, Burkhart, after and is the took in decided approach we Burkhart, Burkhart, here. See 42-45. appropriate approach ¶¶ by the murder process due was violated considered whether integral is underlying statute when the concluded, Burkhart, on 38. We further concluded that it was not. rule did not intent, murder legislative basis intent to kill in by relieving proving the State from due process violate Burkhart, that case. here, that, Burkhart charges to note unlike important It is underlying felony charged separately with
was not charging or separate whether assault, and we did not consider jeopardy pursuant the double permissible separate punishment was felony murder charged with Additionally, Burkhart clause. not consider victim. We did of the same assault and basis of today where victim premise presented the factual in Burkhart felony murder. is than the victim predicate felony different point. Irrespective That critical whether we consider statute, legislative unique intent and the nature of the murder right against violated jeopardy to hold that State Russell’s double produce Simply from the facts of this would a result disconnected case. two killed put, Russell committed crimes-he Gewanski and assaulted weapon. Wallin with Russell was then and convicted of crimes-felony two murder Gewanski and assault of If we accept argument Wallin. Russell’s that Russell cannot be *17 both, punished for the outcome is clear: Russell would receive free knife pass for assault with a upon jeopardy Wallin. “Double exemplifies legal and moral concept person that no should suffer single Guillaume, However, twice for a act.” Russell committed only two acts and would suffer once. Such a result is antithetical legal and morаl concepts jeopardy. behind double jurisdictions Other precise have noted this distinction-multiple Supreme victims. The Court of Georgia distinguished felony between involving single murder felony involving victim and murder multiple (Ga. 1985). State, v. victims Walker S.E.2d Where “the underlying felony charged in one count the indictment is committed upon one victim and the ... murder in another count of the indictment upon person is committed underlying another ... the merge does not with the murder conviction.” Satterfield (Ga. 1981). State, v. 285 S.E.2d Washington The State of has concluded that where the predicate perpetrated offense is one against another, victim and the against murder the predicate felony merge does not punishment murder and for both does jeopardy-even offense, violate double predicate here, where the assault. State McJimpson, 356-57 (Wash. 1995). App. involving This is because offenses different victims arising but from the same act or transaction are not the same in law and fact. McJimpson, 356. Dual victims demand dual punishments punishments jeopardy. and such do not violate double authority, On this clear I would affirm. joins
CHIEF JUSTICE GRAY the dissent JUSTICE RICE.