State v. Jones

Opinion

No. 12127

I N THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA,

P l a i n t i f f and Respondent,

RONALD L. JONES,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighth ~ u d i c i a l i s t r i c t , D Honorable P a u l G. H a t f i e l d , ~ u d g e r e s i d i n g . p

Counsel o f Record:

For Appellant:

John C. H a l l a r g u e d , G r e a t F a l l s , Montana,

F o r Respondent :

Hon. Robert L, Woodahl, A t t o r n e y G e n e r a l , Helena, Montana. J o n a t h a n B. Smith, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana. J. Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana. James R. Walsh, Deputy County A t t o r n e y , a r g u e d , G r e a t F a l l s , Montana.

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Submitted: November 27, 1972

Decided: J A N 8 - '1973 Filed: iAP4 2 lYi3 M. Justice Frank I . Haswell delivered the Opinion of the Court. r Defendant was convicted of the crime of second degree assault following a jury t r i a l in the d i s t r i c t court of Cascade County and sentenced t o one year in the s t a t e prison by the Hon. Paul G. Hatfield, d i s t r i c t judge. Defendant now appeals from the judgment of conviction. Defendant Ronald Leslie Jones was a passenger in a Volkswagen van t h a t overturned about 6:00 p.m. on March 2 3 , 1971, in Parkdale, a housing development in Great Falls, Montana. A t the time of the accident, Mike McCrea was driving the Volkswagen and Patrick McCrea and defendant were passengers. Officer Clifford Ayers of the Great Falls police department was dispatched t o investigate. Upon his arrival a t the accident scene, he found the Volks- wagen van laying on i t s side and several people standing around, including the driver and passengers of the Volkswagen van who identified themselves. After ascertaining t h a t there were no serious i n j u r i e s , Officer Ayers took the driver, Mike McCrea, into the police car and began f i l l i n g out an acci- dent report form. Patrick McCrea and defendant remained near the overturned vehicle. In the meantime Officer Eugene Bernardi of the Great Falls pol ice had been sent t o the accident scene t o a s s i s t in the investigation by the police dispatcher who informed him t h a t possibly some beer belonging t o the occupants of the Vol kswagen van might be involved. When Officer Bernardi arrived a t the accident scene he ascertained from Officer Ayers t h a t no one had been injured in the accident and that the two men standing near the overturned vehicle had been involved in the accident. Officer Bernardi walked over t o a nearby parking area, found some beer between two cars, and placed i t in Officer Ayers' police car. H then walked over t o Patrick e McCrea and defendant. From t h i s point the testimony i s largely conflicting. The S t a t e ' s evidence indicated t h a t Officer Bernardi asked Patrick McCrea and defendant whether i t was t h e i r beer and defendant rep1 ied, "Yes, you f----- pig. We saved this f o r you t o drink and t h a t l i t t l e bastard standing next t o you," referring t o a small child standing nearby. Officer Bernardi told defendant t o watch his language--that there werea,lot of young children around. De- fendant then turned t o Patrick McCrea and said "Did you hear that?" Patrick McCrea answered "Yes. Don't say t h a t f----- pig again." A t t h i s point Officer Bernardi warned him the second time and told him the next time i t happened he was going t o p u t him under a r r e s t . Defendant then said, "Did you hear what the f----- pig said?" Officer Bernardi then attempted t o grab defendant by his r i g h t arm and l e f t shoulder, but his attempted arm- lock f a i l e d . A struggle ensued between Officer Bernardi and defendant d u r - ing which Patrick McCrea kicked Officer Bernardi in the head. Eventually defendant was subdued, handcuffed, placed in Bernardi 's patrol car, driven t o the pol ice station and booked. Thereafter Officer Bernardi , who had received a nose injury, facial injuries, lacerations on both knees, and a broken hand, was taken t o Deaconess Hospital. Defendant's evidence, on the other hand, indicated that Officer Bernardi came over t o Patrick McCrea and defendant, asked them f o r i d e n t i f i - cation, and the identification was furnished. Officer Bernardi, in a hostile manner, then asked who hid the beer-- McCrea or defendant. Defendant answered that he d i d n ' t hide any f----- beer. Officer Bernardi said "Watch your language", whereupon defendant turned t o Patrick McCrea and said "These f----- pigs never leave a guy alone." Patrick McCrea said "Don't call him that--a f ----- pig." Officer Bernardi said "Don't call m a f----- pig" and defend- e ant said 'If--- you." A t this point Officer Bernardi struck defendant in the face, knocking his glasses o f f . A scuffle ensued and several blows were struck by Officer Bernardi and defendant. During the scuffle Patrick McCrea kicked Officer Bernardi in the head. According t o defendant, Officer Bernardi never told him he was under a r r e s t prior t o striking him and a t a l l times Officer Bernardi was the aggressor, defendant only trying t o protect himself. Defendant was eventually handcuffed and driven t o the police station by Officer Bernardi i n his patrol car, dragged by his c o l l a r into the police s t a t i o n , knocked t o the ground, kicked into unconsciousness, and thrown into the "drunk tank". - 3 - Defendant was charged by d i r e c t information w i t h second degree a s s a u l t t o which he plead "not g u i l t y * . He was t r i e d by jury, convicted, and sentenced t o one year i n t h e s t a t e prison. He now appeals from the judgment of conviction . Defendant r a i s e s two issues f o r review upon appeal: (1) Did the d i s t r i c t court e r r i n instructing the jury on elements of the second degree a s s a u l t s t a t u t e not embraced i n the charge against defendant? (2) Did the d i s t r i c t court e r r i n refusing defendant's offered instructions on s e l f -defense? The f i r s t issue i s the principal issue upon appeal. The charge against defendant s e t f o r t h i n t h e information accuses the defendant of the crime of a s s a u l t i n the second degree committed as follows: "That a t t h e County of Cascade, S t a t e of Montana, on or about the 23 day of March, A.D. 1971, and before the f i l i n g of t h i s Information, the said defendant[s] then and there being, did then and there w i l f u l l y , wrongfully, unlawfully and feloniously a s s a u l t a human being, who was an o f f i c e r of the Great Falls City Police Department, t o w i t : Eugene Bernardi, w i t h the i n t e n t then and there i n [him] , the s a i d defendant [s] t o prevent o r r e s i s t t h e lawful apprehension o r detention of a human being, i n violation of Section 94-602, R.C.M. 1947 as amended * * *." This c l e a r l y charges a second degree a s s a u l t under section 94-602, R.C.M. 1947, which provides: "Every person who, under circumstances not amounting t o [ f i r s t degree a s s a u l t ] :

"(5) Assaults another w i t h i n t e n t t o commit a felony, o r t o prevent or r e s i s t t h e execution of any lawful process or mandate of any court or o f f i c e r , o r the lawful apprehension or detention of himself, or any other person, ? s g u i l t y of an a s s a u l t i n the second degree * * *." (Bracketed materi a1 paraphrased; emphasis added. ) Defendant contends t h a t the jury was instructed, i n e f f e c t , t h a t he could be convicted of second degree a s s a u l t under subdivision 3 of section 94-602, R.C.M. 1947, wherein one i s g u i l t y of second degree a s s a u l t i f he: " ( 3 ) Wilfully or wrongfully wounds or i n f l i c t s grievous - 4 - bodily harm upon another, e i t h e r w i t h or without a weapon." i Defendant argues t h a t he could not be convicted of second degree a s s a u l t i

dnder subdivision 3 because t h a t charge is not contained in the information ,!* f i l e d against him. / Specifically the defendant assigns c o u r t ' s instructions No. 2 , No. 10, and No. 11 as e r r o r . Instruction No. 2 reads: "An a s s a u l t is defined a s an unlawful attempt t o in- f l i c t injury upon the person of another, coupled w i t h the present a b i l i t y t o i n f l i c t such injury. "Assault i n the Second Degree is defined: "A. Every person who wilfully or wrongfully wounds or i n f l i c t s grievous bodily harm upon another, e i t h e r w i t h or without a weapon; o r , "B. Assaults another t o prevent or r e s i s t the execution of any lawful process or mandate of any court o r o f f i c e r , or t h e lawful apprehension or detention of himself , or of any other person ." Defendant's objection t o this instruction was i n the following 1anguage : "Object t o t h a t , Your Honor, i n t h a t i t does not define the a s s a u l t charged i n the Information which i s 94-602-605 ( s i c ) , but includes other sections, other subsections of t h a t section, which a r e n o t charged i n t h e information." Court's instruction No. 10 provided: "With regard t o the charge t h a t the defendant committed an a s s a u l t i n the second degree i n t h a t he w i l f u l l y and wrongful l y assaulted Officer Bernardi i n a manner 1i kely t o produce grievous bodily harm, s p e c i f i c i n t e n t is not an element of t h e charge. The law presumes a ma1 icious and g u i l t y i n t e n t from the d e l i b e r a t e commis- sion of an unlawful a c t f o r the purpose of injuring another. This i s a conclusive presumption which means i t cannot be controverted or rebutted by other evidence. "Therefore, i f you find beyond a reasonable doubt t h a t the defendant, though he did not intend t o r e s i s t o r prevent his 1awful apprehension or detention, he never- theless struck Officer Bernardi forbthe purpose of injuring h i m , the law presumes t h a t he acted w i t h a malicious and g u i l t y i n t e n t , and the defendant i s not e n t i t l e d t o rebut t h e presumption, f o r i f you have found t h a t the defendant's a c t was.unlawfu1 and was f o r the purpose of injuring you Mve necessarily found unlawful i n t e n t . " A though i t does not appear in the record w i t h c l a r i t : ~ , we shall 1 assume t h a t the following objection by defendant was d i r e c t e d a t c o u r t ' s I instruction No. 10. " I object t o i t f o r the reason t h a t i t should s t a t e t h e kind of second degree a s s a u l t . Further reason t h e kind of crime referred t o i n the Information i s the kind of a s s a u l t w i t h intent t o prevent o r r e s i s t a r r e s t . " Court's instruction No. 11 said: "You a r e instructed t h a t grievous bodily harm would include any hurt o r injury calculated t o i n t e r f e r e with health or comfort of the person injured; i t need not be necessarily an injury of a permanent character. By grievous is meant atrocious, aggravated, harmful , painful , hard t o bear, serious in nature." Defendant objected t o this instruction i n the following manner: " I object t o t h a t on the ground t h a t t h e Information charges a s s a u l t w i t h i n t e n t t o prevent o r r e s i s t a r r e s t . In t h i s charge, this instruction does not conform t o the information a t a l l , and the crime of a s s a u l t , 1i kely t o produce grjeoous bodily harm i s not included i n the infor- mation a t a l l " . Defendant Is objections t o a1 1 three instructions were overruled and the instructions were given t o the jury. The t h r u s t of defendant's contention is t h a t these three instruc- t i o n s permit conviction of a kind of a s s a u l t not charged in the information, s p e c i f i c a l l y a s s a u l t by w i l f u l l y i n f l i c t i n g grievous bodily harm on another i n violation of section 94-602(3), R.C.M. 1947. Defendant f u r t h e r argues t h a t t h i s type of a s s a u l t requires only a general i n t e n t t o commit the a c t constituting the a s s a u l t whereas the a s s a u l t charged i n the information re- quires a s p e c i f i c i n t e n t . Defendant concludes t h a t a s i t i s impossible t o t e l l which type of a s s a u l t the defendant was convicted o f , t h e instructions i n question c o n s t i t u t e prejudicial and reversible e r r o r . A t t h e o u t s e t , i t is c l e a r t o us t h a t defendant was charged in the information w i t h but one kind of second degree a s s a u l t , viz: assault w i t h i n t e n t t o prevent o r r e s i s t h i s lawful apprehension o r detention i n violation of section 94-602(5). The charge s p e c i f i c a l l y charges an a s s a u l t "with t h e i n t e n t then and there i n [ h i m ] , the said defendantks], t o prevent o r r e s i s t the lawful apprehension or detention of a human being." The charge does not contain language r e f e r r i n g t o an a s s a u l t involving t h e wilful1 or wrongful wounding or i nfl i c t i ng grievous bodily harm upon another. Therefore c o u r t ' s instructions No. 2 , No. 10 and No. 11 should not have been given. The only remaining question then i s whether t h i s error was prejudicial and reversible. Section 95-2412, R.C.M. 1947 specifically provides in pertinent part: " * * * No cause shall be reversed by reason of any error committed by the t r i a l court against the appel- l a n t , unless the record shows t h a t the error was prejudicial. " Section 95-2425, R.C.M. 1947, expresses the converse of t h i s rule in the following language: "Any e r r o r , defect, irregularity or variance which does not a f f e c t substantial rights shall be disregarded. * * *I1 Thus the t e s t in Montana of reversible versus harmless error i s whether the error a f f e c t s the substantial rights of the party against whom the error was committed or not. Under the circumstances of t h i s case, w hold the error harmless. e The j u r y ' s verdict of conviction demonstrates i t s rejection of defendant's evidence t h a t he acted in self-defense. Absent t h i s evidence, only one conclusion i s possible under the remaining evidence, viz; that defendant assaulted Officer Bernardi t o prevent or r e s i s t his lawful apprehension or detention. Defendant admitted t h a t he repeatedly used profane and obscene language in the presence of women and small children. The evidence i s un- rebutted t h a t t h i s constitutes a crime under the ordinances of the City of Great Falls. I t i s undisputed t h a t t h i s offense was committed in the presence of Officer Bernardi who warned defendant against the use of such 1anguage . Absent defendant's evidence tending t o prove self-defense and t h a t Officer Bernardi struck h i m f i r s t , which the jury demonstrably rejected, the only remaining evidence indicated that Officer Bernardi attempted t o apply an armhold on defendant f o r the purpose of apprehending and detain- ing h i m . Defendant admits a struggle w i t h Officer Bernardi, admits t h a t he struck Officer Bernardi , and admits t h a t he was eventually handcuffed and placed in the police car. The evidence permits b u t a single conclusion-- t h a t defendant assaulted Officer Bernardi with the specific intent t o pre- vent his lawful apprehension and detention. The evidence i s not only over- whelming, i t demonstrates conclusively defendant's gui 1t of the crime charged. - 7 - Under such circumstances, defendant's g u i l t o r innocence of a type of a s s a u l t not charged i s immaterial and cannot a f f e c t the verdict. Accord- ingly, the e r r o r s i n the three jury instructions c o n s t i t u t e harmless error. Directing our a t t e n t i o n t o the second issue f o r review, defendant contends t h a t reversible e r r o r occurred when the court refused his f o l l owing offered jury i n s t r u c t i o n s : " I t i s lawful f o r a person who i s being assaulted, and who has reasonable ground f o r believing t h a t bodily injury i s about t o be i n f l i c t e d upon him, t o stand his ground and defend himself from such a t t a c k , and i n doing so he may use a1 1 force and means which he be1 ieves t o be reasonably necessary and which would appear t o a reasonable person, i n the same or similar circumstances, t o be necessary t o prevent the injury which appears t o be imminent " . "A person who has been attacked and who i s exercising h i s r i g h t of lawful self-defense is not required t o r e t r e a t , and he not only may stand h i s ground and defend himself against the attack but may a l s o pursue his a s s a i l a n t until he has secured himself from danger i f t h a t course appears t o him, and would appear t o a reasonable person in the same s i t u a t i o n , t o be reason- ably and apparently necessary; and this is h i s r i g h t even though he might more e a s i l y have gained s a f e t y by withdrawing from the scene. " The'gist of defendant's complaint is t h a t t h e "reasonable man" standard enabl ing defendant t o a c t on appearances in s e l f -defense a s provided i n t h e above instructions is t h e law in Montana and was n o t covered anywhere i n the c o u r t ' s instructions t o the jury. Defendant c i t e s S t a t e v . Totten, 65 Mont. 203, 210 P. 1061 and S t a t e v . Daw, 99 Mont. 232, 43 P.2d 240, i n support of the offered instructions. The giving or refusal of a p a r t i c u l a r i n s t r u c t i o n i n a given case must be determined in the l i g h t of the evidence and issues in t h a t case, and therefore a given instruction may be proper i n one case and improper i n another. W have no quarrel w i t h t h e offered instructions here a s c o r r e c t e statements of the law; however, we hold t h e i r refusal by the t r i a l court c o r r e c t because the evidence did not support such instructions. In the i n s t a n t case appearances and a c t u a l i t i e s a r e i d e n t i c a l ; there i s simply no evidence from which the jury could i n f e r t h a t the defendant i n exercising his r i g h t of self-defense acted on appearances as a reasonable man rather than in light of the actual situation t h a t presented i t s e l f . The judgment of the d i s t r i c t court i s affirmed.

2!A rR&.@d ------ --- -- Associate Justice

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