State v. LaPier

790 P.2d 983, 242 Mont. 335, 1990 Mont. LEXIS 124
Montana Supreme Court·Decided April 12, 1990·No. No. 88-194 and 88-621·Published·Cited by 24 cases

Opinion

JUSTICE WEBER

delivered the Opinion of the Court.

Mr. LaPier appeals from his criminal convictions in the District Court of the Ninth Judicial District, Glacier County. In a jury trial, he was found guilty of aggravated burglary, aggravated kidnapping, and felony assault. Mr. LaPier was sentenced to thirty years for aggravated burglary, thirty years for aggravated kidnapping, to be served concurrently, and five years for felony assault, to be served consecutively. Mr. LaPier appeals the convictions. We affirm.

The issues are:

1. Did the District Court err in denying the defendant’s motion to dismiss the information for lack of jurisdiction?

[338]*3382. Was the defendant denied his right to confront the witnesses against him?

3. Did the District Court err in denying the defendant’s motion for a continuance of trial?

4. Is the verdict inconsistent?

The incident out of which these charges arose occurred one night in August 1987. At about 10:30 p.m., the victims Richard Kurek, his ex-wife Angela, and his fiancee Shelley Boutier were watching television in Richard’s home. Leland “Yackie” Thomas visited the house for a few minutes, then left. Mr. Kurek stated at trial that he didn’t really understand why Mr. Thomas was visiting, as none of them knew him well. Following Mr. Thomas’ visit, Richard and Angela Kurek went upstairs to fix the curtains in the room where Angela was to spend the night. They had been upstairs about five minutes when the dog began to bark and Shelley began to scream.

Mr. Kurek testified at trial that as he turned to leave the bedroom Mr. LaPier came up the stairs, entered the bedroom, and asked, “Where is it?” Mr. Kurek stated that Mr. LaPier threw him on the bed and demanded to know where the $7,000 was. Richard and Angela Kurek both testified that Mr. LaPier threatened to kill Mr. Kurek and struck him with his fists, then threw Mr. Kurek to the floor and began kicking him with his heavy logger boots. Mr. Kurek testified that he had not known Mr. LaPier prior to this incident.

Angela Kurek testified that at this point, she told Mr. LaPier that she had some money in the trunk of her car parked outside, and that Mr. LaPier told her to go get the money. Angela Kurek testified that when she got to the bottom of the stairs, she saw a man holding Shelley Boutier on the floor with his knee in her back and a handful of hair.

Angela Kurek stated that when she reached her car, she noticed that no one had followed her out of the house. She got into the car. A van had been parked to block the street entrance to the cul-de-sac where the house was located. By going over a neighbor’s lawn she drove out of the cul-de-sac and went to notify the police.

Mr. Kurek testified that a second individual, later identified as Merlyn Thomas, joined Mr. LaPier in assaulting him. Mr. Kurek testified that Merlyn Thomas hit him in the head with the blade of a screwdriver, and that the two men forced him into an adjoining bedroom. He stated that Mr. LaPier continued to hit him while Merlyn Thomas stabbed him with the screwdriver. He testified that [339] Mr. LaPier and Mr. Thomas then dragged him downstairs and outside, stating, “Let’s burn him.”

Mr. Kurek testified that he was then forced into the garage where Mr. LaPier said, “Let’s off him.” Mr. Kurek testified he later was able to get free and escape to a neighbor’s house. Mr. Kurek stated that he noticed Angela Kurek’s car and a police car coming up the street. Angela Kurek testified that as she approached the house she saw two men run off. Shelley Boutier came out of a bathroom where she had been hiding.

Mr. LaPier, Leland Thomas and Merlyn Thomas were arrested the next day. Because they are members of the Blackfeet Tribe, the Thomases were tried in federal court. Mr. LaPier was tried in state court.

I

Did the District Court err in denying the defendant’s motion to dismiss the information for lack of jurisdiction?

Prior to trial, on October 15, 1987, Mr. LaPier moved to dismiss the information based on lack of jurisdiction. Be contended he was an Indian and that state courts lacked jurisdiction to prosecute a criminal offense committed by an Indian within the exterior boundaries of an Indian reservation. The District Court denied this motion. Mr. LaPier’s direct appeal of the criminal convictions raised the jurisdictional issue. Mr. LaPier also presented this Court with a petition for habeas corpus raising the same issue. The direct appeal and petition for habeas corpus were consolidated and held in abeyance and the District Court was ordered to hold an evidentiary hearing in regard to Mr. LaPier’s status as an Indian. Following this hearing, the District Court entered lengthy findings of fact and conclusions of law, concluding that Mr. LaPier was not an Indian for purposes of criminal offenses and that the state court had jurisdiction to prosecute. For appellate review, the parties have re-briefed the jurisdictional issue subsequent to the hearing.

Jurisdiction to prosecute criminal offenses committed on an Indian reservation is shared by three sovereign entities, depending on the nature of the crime and whether the defendant and the victim are Indian or non-Indian. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L.Rev. 503, 504-05, (1976). A tribal court has jurisdiction if both the defendant and the victim are Indian and the crime is not one listed in [340] 18 U.S.C. § 1153. United States v. Antelope (1977), 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701. Federal courts have jurisdiction pursuant to several statutes, such as the Major Crimes Act, 18 U.S.C. § 1153.

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State v. LaPier, 790 P.2d 983, 242 Mont. 335, 1990 Mont. LEXIS 124 (Mo. 1990).

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