State v. Smith

715 P.2d 1301, 220 Mont. 364
CourtMontana Supreme Court
DecidedMarch 13, 1986
Docket84-462
StatusPublished
Cited by51 cases

This text of 715 P.2d 1301 (State v. Smith) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Smith, 715 P.2d 1301, 220 Mont. 364 (Mo. 1986).

Opinions

[368]*368MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant appeals the jury verdict convicting him of deliberate homicide in the Eighth Judicial District, Cascade County, on May 9, 1984.

We affirm.

This is the second time this Court has considered this matter. In November 1982 defendant Craig Steven Smith, an airman stationed at Malmstrom Air Force Base, was charged with the deliberate homicide of his fiancee Susan Galloway on or about October 23, 1982. The first trial ended in mistrial on January 18, 1984, at defense counsel’s request, after the State questioned the victim’s father as to what he had learned about defendant’s sexual past. The basis for mistrial was a failure of the prosecution to give the Just notice of prior crimes introduction. See State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

Following defense motions for dismissal on double jeopardy grounds and for change of venue, defendant filed a notice of appeal April 18, 1984. The State sought a writ of supervisory control on April 19, 1984. We affirmed the order denying the motion to dismiss after oral argument on the writ April 24, 1984. The second trial began April 25, 1984. A Cascade County jury found defendant guilty of deliberate homicide on May 9, 1984, and the court sentenced defendant/appellant to one hundred years on June 19, 1984. Appeal followed.

Appellant raised thirteen issues in his brief. However, we restate and decide the following issues as being dispositive of this appeal:

I. Whether he was twice put in jeopardy?

II. Whether the court erred in granting the State’s motion to add the name of John Wehrenberg, a soil geologist, as an expert witness on April 23, 1984?

III. Whether the court erred in denying his motion for a mistrial?

IV. Whether the court erred in failing to strike the testimony regarding shoe prints?

V. Whether the court erred in denying his motion for a change of place of trial?

VI. Whether the court erred in admitting statements made to Arne Sand, polygraph examiner?

VII. Whether the court erred in improperly instructing the jury by failing to give the State’s offered omnibus or alternatively failing to [369]*369reread the preliminary instructions to the jury, by failing to give certain instructions, and by giving the instruction on the statutory definition of “knowingly”?

On October 22, 1982, appellant, hereafter referred to as defendant, appellant or Smith, and Susan Galloway ate dinner and played cards at her brother’s home. The couple left at about midnight. The next morning at about 9:00 a.m., Smith called Susan’s family and said she was not at the house where she was “house-sitting” when he called, and he was concerned. The family mobilized. Upon gathering together with Smith, the family noticed a jagged cut sewn up on his right hand. He told them and the police later that week that Susan had dropped him off at his apartment, that he went right to bed but woke up about 4:00 a.m., opened an orange juice can and cut himself on the can, and then went to Malmstrom AFB to have the cut treated.

The family conducted air, water and ground searches independently and in conjunction with law officers. On October 23, 1982, a dam worker spotted a reflection in some heavy brush down the cliff from an overlook to Rainbow Dam, about one mile from Malmstrom AFB in an area Susan’s father had once indicated to Smith was where cars were abandoned, unretrieved. Susan’s body was discovered in the trunk of her car. She had been hit on the head with a bottle numerous times and then stabbed in the neck multiple times with the jagged edge of the then broken bottle. She had lost a lot of blood, only a small part of which was in the interior and the trunk. A convenience store clerk was to testify later that Smith and Susan had bought a bottle of pop at about midnight October 22, 1982.

A fellow airman had seen Smith at Malmstrom on October 22 at the time he said he was at his apartment in bed. Although he no longer lived in the Malmstrom dorms, Smith had come out of the bathroom wet, clutching a bundle of clothes. He was only wearing jogging shorts and a T-shirt. He then went to another friend’s door and asked for a ride. He said he had been at the theater, gotten drunk, passed out, and awoke to find “the other guys” gone. He told his friend to say nothing because he did not want his fiancee to know. His friend gave him a ride home at about 2:30 a.m. October 23, 1982.

The sheriff’s department scheduled an appointment with Smith for a polygraph examination on October 29, 1982. Smith came in voluntarily. He signed an “advisement of rights” form and consented to take the test. Sheriff’s Deputy, Arne Sand, administered the test in [370]*370three one-hour parcels. After the test, they went back to another office. Another deputy came in with a note stating that there was evidence linking five shoe prints at the scene with Smith’s tennis shoes, “same size, same design.” Sand showed the note to Smith and asked him if he knew what had been used to kill Susan and if he had killed her. Both times, Smith nodded affirmatively, Sand later testified. At this time at the sheriffs request, Sand and Smith went with the sheriif to the county attorney’s office where, after some discussion, the county attorney decided to arrest Smith. After jury selection in the first trial, the court held an evidentiary hearing on the issue of voluntariness of the admissions and found them voluntary and admissible.

The first trial ended in a mistrial. Defense counsel brought up to the victim’s father the subject of a possible sexual relationship between the engaged couple and asked if they were “the type.” Under cross-examination from the State, the father insisted his daughter was not the type but he had learned that Smith was. In fact, he had learned that Smith had relations with a thirteen-year-old girl at one time. Later it was disclosed in chambers that Smith was also thirteen, but the court still ruled that the State had introduced evidence of prior crimes — possible statutory rape — without the warning required from State v. Just and declared a mistrial. The State argued vociferously against a mistrial, asserting that it was character evidence to refute the pure character of defendant and not introduced as “a crime,” and that defense had raised the issue of character.

The court on March 19,1984, denied defense motions for change of venue and to dismiss the case on double jeopardy grounds. The court concluded that double jeopardy had not attached because there was no prosecutorial conduct intended to goad a defense request for mistrial; rather, the prosecution had acted in good faith belief that it was refuting character evidence. The mistake of law as to how far the State could go did not amount to intentional misconduct sufficient for dismissal of the second trial on double jeopardy grounds. The court further found that a change of venue motion was premature but could be renewed during jury voir dire if there was evidence of bias or prejudice on a jury panel.

On April 18, 1984, defendant filed a notice of appeal on the sole issue of double jeopardy. The State filed a petition for writ of supervisory control on April 19, 1984, asking this Court to suspend the rules for review of the court order and rule upon the petition by [371]

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Bluebook (online)
715 P.2d 1301, 220 Mont. 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-mont-1986.