author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRIAN SCOTT WEIGLE, Defendant and Appellant.
    No. 96-496.
    Submitted on Briefs May 8, 1997.
    Decided November 6, 1997.
    54 St.Rep. 1182. 947 P.2d 1053.
    285 Mont. 341.

      For Appellant: Julio K. Morales, Morales Law Office, Missoula.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; George H. Corn, Ravalli County Attorney, Hamilton.
   JUSTICE NELSON

delivered the Opinion of the Court.

Brian Scott Weigle (Weigle) entered a plea of guilty in the District Court for the Twenty-First Judicial District, Ravalli County, on two counts of negligent homicide. He was sentenced to ten years at Montana State Prison on each count with the sentences to run consecutively. Weigle appeals the District Court’s denial of his motion to dismiss one of the negligent homicide counts or, in the alternative, to order concurrent rather than consecutive sentences. We affirm.

We address the following issue on appeal:

Did the District Court violate the prohibition against multiple punishments when it imposed separate sentences upon Weigle’s conviction for two counts of negligent homicide and ordered that the sentences run consecutively?

Factual and Procedural Background

On May 18, 1995, at approximately 8 p.m., Weigle’s pickup truck collided head on with a passenger car carrying John and Harold Yerian. Weigle was alleged to have been traveling in the wrong lane of traffic at excessive speeds while under the influence of alcohol. The Yerians died as a result of the collision.

Weigle was charged with two counts of deliberate homicide pursuant to § 45-5-102, MCA, and, in the alternative, two counts of negligent homicide pursuant to § 45-5-104, MCA. He was also charged with one count of driving under the influence of alcohol pursuant to § 61-8-401(a), MCA. Weigle entered not guilty pleas to all of these charges. The two counts of deliberate homicide were subsequently dismissed.

On January 11, 1996, Weigle moved the District Court, in the alternative, to dismiss one count of negligent homicide, deem the two negligent homicide counts to be alternative counts, or, if he is convicted on both of the negligent homicide counts, order his sentences to run concurrently. In an order filed March 5,1996, the District Court denied Weigle’s motion.

Thereafter, Weigle filed a motion for change of plea. On May 1, 1996, the District Court granted his request and allowed Weigle to plead guilty to the charges in the form of an Alford plea. Weigle was sentenced on June 5, 1996, to ten years on each of the negligent homicide counts. The court ordered that the sentences run consecutively and that the last five years of the sentence be suspended. The court also ordered that Weigle not be eligible for parole until he has served a minimum of seven years at Montana State Prison. Weigle was also sentenced to serve six months in the Ravalli County jail on the DUI offense. This latter sentence, which was ordered to run consecutive to the other sentences, was suspended.

Discussion

Did the District Court violate the prohibition against multiple punishments when it imposed separate sentences upon Weigle’s conviction for two counts of negligent homicide and ordered that the sentences run consecutively?

District courts have broad discretion in sentencing criminal defendants and we review sentences only to determine whether the court abused its discretion. State v. Zabawa (1996), 279 Mont. 307, 316, 928 P.2d 151, 157 (citing State v. Graveley (1996), 275 Mont. 519, 521, 915 P.2d 184, 186; State v. DeSalvo (1995), 273 Mont. 343, 346, 903 P.2d 202, 204).

Weigle contends that the District Court’s imposition of consecutive sentences violated the constitutional prohibition against double jeopardy because his convictions for negligent homicide arose out of a single act, i.e., running head-on into an oncoming vehicle. He contends that the District Court’s only option in this case was to impose concurrent sentences.

In Zabawa, we stated that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which is applicable to the states through the Fourteenth Amendment, generally protects against multiple punishments for the same offense as well as multiple prosecutions for the same offense. Zabawa, 928 P.2d at 154 (citing State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250). The Montana Code Annotated defines an “offense” as “a violation of any penal statute of this state or any ordinance of its political subdivisions.” Section 46-1-202(14), MCA.

Weigle twice violated § 45-5-104, MCA, which provides in pertinent part: “[a] person commits the offense of negligent homicide if he negligently causes the death of another human being.” There is no question that, since two people were killed in the collision, two distinct offenses were committed. ‘When the same transaction may establish the commission of more than one offense, a person charged with the conduct maybe prosecuted for each offense.” Section 46-11-410(1), MCA.

Weigle asserts that double jeopardy prohibits cumulative punishments unless they are clearly intended by the legislature and that the Montana Legislature has not authorized consecutive sentences for negligent homicides arising out of one single act. Weigle contends that the policy of lenity requires that this ambiguity be resolved in his favor.

In Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the United States Supreme Court held:

A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. In the case before us, although each count of negligent homicide alleged a violation of the same statute by the same act, each count required proof of an additional fact that the other count did not, namely, the death of the particular victim. Here, the same act clearly constitutes two distinct offenses: (1) negligently causing the death of John Yerian and (2) negligently causing the death of Harold Yerian.

Furthermore, Montana law not only authorizes consecutive sentences for multiple offenses, but presumptively requires them. “Separate sentences for two or more offenses must run consecutively unless the court otherwise orders.” Section 46-18-401(4), MCA.

Accordingly, we hold that the District Court did not err in imposing consecutive sentences upon Weigle’s conviction for two counts of negligent homicide.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    EDWARD C. PETERS, Plaintiff and Respondent, v. STATE OF MONTANA, Defendant and Appellant.
    No. 96-657.
    Submitted on Briefs May 22, 1997.
    Decided November 7, 1997.
    54 St.Rep. 1185. 948 P.2d 250.
    285 Mont. 345.

      For Appellant: Michael T. McCabe, Lieutenant Colonel, MTARNG, Helena.
    For Respondent: Lawrence A. Anderson, Great Falls.
    For Amicus Curiae: Kelly A. Jenkins, PERD, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant, State of Montana (State), appeals from an order of the Eighth Judicial District Court, Cascade County, granting Plaintiff’s Motion To Enforce Judgment. We affirm.

We state the issues on appeal as follows:

1. Did the District Court err in ruling that the State’s set-off claim was barred as a compulsory counterclaim under Rule 13(a), M.R.Civ.P.?

2. Did the District Court err in finding that the State’s Department of Military Affairs (DMA) and its Public Employees’ Retirement System (PERS) were the same party for purposes of this action?

3. Did the District Court err when it ordered the State to pay Peters his full settlement as written in the parties’ Consent Judgment, without any set-off for PERS claims?

BACKGROUND

This case is the latest in a series of disputes between the firefighters employed by the Montana Air National Guard (Guard) in Great Falls, Montana, and the State of Montana. From 1974 until his termination in 1990, the respondent in this case, Edward C. Peters (Peters), worked as a firefighter for the Guard. During this time, the firefighters twice sued the State for unpaid overtime, and prevailed on both actions. See Stimac v. State (1991), 248 Mont. 412, 812 P.2d 1246 (settlement reached); and Tefft v. State (1995), 271 Mont. 82, 894 P.2d 317 (holding that under the federal Fair Labor Standards Act (FLSA), the State was required to pay the firefighters for overtime at the overtime rate). To circumvent its obligation to pay the firefighters overtime in the future, the DMA sought an exemption from the State’s pay matrix under § 2-18-103(6), MCA, which excludes members of the militia. See Tefft, 894 P.2d at 321. The State granted the exemption, and classified the firefighters as “Militia Protective Services.” Thereafter, in order to qualify for the exemption, the DMAmade membership in the Guard a condition of employment for firefighters.

Joseph M. McKamey, a fellow firefighter of Peters, then filed suit against the State alleging that the DMAs policy, making membership in the Guard a condition of employment, violated the Equal Protection Clause of the Montana and United States Constitutions. See McKamey v. State (1994), 268 Mont. 137, 885 P.2d 515.

On December 31, 1990, during the pendency of the Tefft and McKamey decisions, the DMA fired Peters because he was no longer a member of the Guard. On January 1, 1991, Peters began drawing retirement benefits from his pension with the State’s PERS. On November 5, 1991, Peters filed suit against the State alleging the same claim as that in McKamey, that the DMA’s policy, requiring firefighters to be members of the Guard, was discriminatory. Peters’ complaint sought the following relief: reinstatement of his employment; lost wages and employment benefits for the period of termination; liquidated damages under the provisions of the FLSA; and attorney’s fees and costs.

On December 8, 1993, the district court decided Tefft in favor of the firefighters. In awarding the firefighters their overtime pay, the court held that the DMAs exemption from the state pay matrix was a “blatant subterfuge” created in bad faith to avoid paying the firefighters overtime under the provisions of the FLSA. On February 4, 1994, the district court decided McKamey, also in favor of the firefighter. The district court held that the DMAs policy, mandatory membership in the Guard as a condition of employment, was unconstitutional as it violated equal protection standards under the Montana and United States Constitutions. We affirmed both cases on appeal. See Tefft, 894 P.2d at 323; McKamey, 885 P.2d at 522.

Based on the Tefft and McKamey decisions, on December 21, 1994, the District Court granted Peters’ motion for partial summary judgment on the issue of liability. The parties then settled on the amount of damages. On March 9, 1995, the District Court entered a Consent Judgment which provided Peters the following:

1. Reinstatement to his employment as if not terminated;
2. Lost wages of $82,171;
3. Lost annual leave and sick leave benefits;
4. PERS contributions that the DMA would have made had Peters not been terminated; and
5. Attorney’s fees and costs of suit.

Representatives from the DMA and the PERS met to compute the amount of PERS contributions the DMA was to make toward Peters’ pension. At that time, PERS informed the DMA that Peters was retired and that he had been collecting retirement benefits since January of 1991. PERS informed the DMA that because Peters would be reinstated to his employment as if never fired, DMA would have to reimburse PERS for the amount of retirement benefits Peters had collected, from the time he was fired until his reinstatement, plus the amount of PERS assessments which would have been deducted from Peters’ regular paychecks had he not been fired, a total sum of $35,970.46. The PERS reasoned that Peters could not be retired and employed at the same time. PERS suggested that the DMA raise this money by deducting it from Peters’ settlement fund. The DMA took PERS’s suggestion and, after explaining the situation to Peters, demanded that his damage award be offset by $35,970.46. The DMA then paid $100,000 into escrow pending Peters’ assent to these terms.

Meanwhile, Peters had elected to stay retired rather than be reinstated in his employment. PERS refused to make any further retirement payments to Peters until it received reimbursement for the $35, 970.46, either from the DMA or from Peters.

Peters then filed a Motion To Enforce Judgment on May 10,1996. On June 18, 1996, the District Court held a hearing on the motion, and on September 20, 1996, the District Court entered its Memorandum and Order in favor of Peters. The District Court ruled that the State’s set-off claim was barred as a compulsory counterclaim under Rule 13(a) M.R.Civ.P.; that both the DMA and the PERS were bound to the Consent Judgment because they were the same party, collectively known as “State of Montana;” and that the State was required to pay Peters his full settlement as written in the parties’ Consent Judgment, without any set-off for PERS retirement benefits already received. The State appeals this ruling. The DMA has appeared for the State, and the PERS has filed an amicus curiae brief with the Court.

DISCUSSION

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Welch v. Huber (1993), 262 Mont. 114, 116, 862 P.2d 1180, 1181.

Issue 1

Did the District Court err in ruling that the State’s set-off claim was barred as a compulsory counterclaim under Rule 13(a), M.R.Civ.P.?

Rule 13(a), M.R.Civ.P., provides in pertinent part:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim ....

The purpose of Rule 13(a) is “to bring all logically related claims into a single litigation, thereby avoiding a multiplicity of suits.” Julian v. Mattson (1985), 219 Mont. 145, 148, 710 P.2d 707, 709. Our analysis of whether the District Court correctly applied Rule 13(a) depends first, on what exactly comprises the “transaction or occurrence” in this case, and second, on whether the State’s set-off claim arose out of this transaction or occurrence.

In determining what constitutes the “transaction” in this case, the State urges this Court to go back to the days of code pleading and apply the narrowest of interpretations to the term. The State cites Kaufman v. Cooper (1909), 39 Mont. 146, 155-56, 101 P. 969, 972, for the rule that a transaction is comprised of only that which appears affirmatively in the complaint. Under the rule of Kaufman, the State argues that the transaction in the instant case is only what appears on Peters’ complaint; the anti-discrimination claim and damages. The State argues that because Peters failed to specifically plead for retention of his retirement benefits as part of the damage award, the State’s set-off claim for recoupment of these benefits falls outside the litigated transaction.

We disagree with the State’s interpretation of “transaction.” Kaufman is inapposite as that case interpreted §§ 6540, 6541, and 6547 of the Revised Codes of Montana. These code sections are superseded by Rule 13(a), M.R.Civ.P, adopted by the Montana Legislature in 1961. Since the adoption of Rule 13(a), we have consistently applied a broader interpretation of the term “transaction.”

In Julian, we defined “transaction” as:

that combination of acts and events, circumstances and defaults, which, viewed in one aspect, results in the plaintiff’s right of action, and viewed in another aspect, results in the defendant’s right of action, and it applies to any dealings of the parties resulting in wrong, without regard to whether the wrong be done by violence, neglect or breach of contract.

Julian, 710 P.2d at 710 (citations omitted).

Similarly, in First Bank v. Fourth Judicial Dist. Court (1987), 226 Mont. 515, 737 P.2d 1132, 1136, we adopted the United States Supreme Court’s logical relationship test in interpreting “transaction:”

‘Transaction’ is a word of flexible meaning. It may comprehend a series of many occurrence, depending not so much upon the immediateness of their connection, as upon their logical relationship .... It is the one circumstance without which neither party would have found it necessary to seek relief. Essential facts alleged by appellant ... constitute in part the cause of action set forth in the counterclaim. That they are not precisely identical, or that the counterclaim embraces additional allegations ... does not matter.

First Bank, 737 P.2d at 1136 (citing Moore v. New York Cotton Exchange (1926), 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750, 757). In First Bank, we held that belated claims of creditor misconduct were barred as compulsory counterclaims because they arose out of the transaction involving the bank’s foreclosure suit. First Bank, 737 P.2d at 1136. In reaching our conclusion, we reasoned that “the factual history of the complaint is the same as the history alluded to in the [belated claims]” and that there was a “logical relationship” between the bank’s foreclosure complaint and the claims of creditor misconduct. First Bank, 737 P.2d at 1136.

In Turtainen v. Poulsen (1990), 243 Mont. 355, 792 P.2d 1089, we expressed the logical relationship test in terms of whether the belated claim “arose out of the same aggregate of operative facts” that gave rise to the underlying claim. Turtainen, 792 P.2d at 1091. In that case, we held that belated claims for fraud and enforcement of restrictive covenants “arose out of the same aggregate of operative facts, the creation and execution of the contract for sale of land ....” Turtainen, 792 P.2d at 1091.

Applying the logical relationship test to the instant case, we determine that the State’s set-off claim against Peters arose out of the same transaction as Peters’ FLSA claim against the State. The underlying “transaction” in both cases is the unlawful termination of Peters’ employment and the damages resulting therefrom. We agree with Peters that the unlawful termination of his employment set in motion all the events resulting both in his FLSA claim and the State’s set-off claim. The claims are logically related because they arose out of the same aggregate of operative facts.

Amicus argues that we need not reach the “same transaction” analysis, because the facts giving rise to the State’s set-off claim did not exist “at the time of pleading” as required by Rule 13(a). Amicus cites a federal case, Burlington Northern R.R. Co. v. Strong (7th Cir. 1990), 907 F.2d 707, for the rule that a claim is not a compulsory counterclaim if it did not exist until the conclusion of the first suit. Strong, 907 F.2d at 712. Although Amicus is silent as to which facts did not exist at the time of pleading, it appears that Amicus is referring to the fact that the DMA did not know of Peters’ retirement status until after signing the Consent Judgment. That argument is unpersuasive. The existence of a fact and a party’s knowledge of that fact are two different things. Peters’ retirement status was a fact that existed at the time of pleading. That the DMA had no knowledge of that fact is of no consequence here. Indeed, we see no reason why the DMA’s investigation and discovery did not reveal the fact of Peters’ retirement status.

Both the State and Amicus make much of the equities of the parties resulting from the District Court’s enforcement order. The State and Amicus argue that it is fundamentally unfair for Peters to receive both retirement benefits and PERS contributions for the same time period; that Peters, by definition, cannot be “retired” and an “active member” at the same time. We emphasize that the issue presented, whether Rule 13(a) bars the State’s set-off claim, is strictly procedural. Our holding does not address the merits of whether Peters is entitled to both retirement benefits and PERS contributions for the same period. Likewise, our holding does not address the merits of from whom PERS is to receive reimbursement for the depletion of its trust fund. Those questions are not part of this action.

Having determined that the State’s set-off claim arose out of the same transaction as Peters’ claim, and given the policy of judicial economy underlying Rule 13(a), we conclude that the District Court did not err in ruling that the State’s set-off claim was barred as a compulsory counterclaim under Rule 13(a).

Issue 2

Did the District Court err in finding that the DMA and the PERS were the same party for purposes of this action?

In its Order of September 20, 1996, enforcing the parties’ Consent Judgment, the District Court stated the following:

[N] either PERS or DMA want to bear the financial consequences (lost pension assessments and premature pension payout) caused when Plaintiff was wrongfully fired. Instead of resolving this dispute between themselves, the agencies seek to pass their expense along to the Plaintiff. They do this by treating PERS as an independent party ....
The State of Montana (not just DMA) is the Defendant and the judgment obligor in this case. Both PERS and DMA are state agencies, and accordingly are bound by the State’s position .... [citations omitted] DMA and PERS are one party for the purposes of this lawsuit. The fact that the $36,000 recoupment claim originated with PERS and not with DMA makes no difference in assessing whether [the set-off] claim is barred ....

In concluding that PERS and DMA were one party, the District Court relied upon a United States Supreme Court case wherein the Court held that because privity exists between agents of the same government, a judgment against one agent is binding on the others. Sunshine Anthracite Coal Co. v. Adkins (1940), 310 U.S. 381, 402-403, 60 S.Ct. 907, 917, 84 L.Ed. 1263, 1276.

The State argues that the District Court erred when it concluded that DMA and PERS were one party. As support for its argument, the State cites two companion cases where this Court recognized the separateness of state agencies for purposes of suing one another. See Board of Regents v. Judge (1975), 168 Mont. 433, 543 P.2d 1323; State ex rel. Judge v. Legislative Fin. Comm. (1975), 168 Mont. 470, 543 P.2d 1317. Likewise, Amicus assigns error to the court’s conclusion, arguing that it ignores the constitutionally imposed fiduciary duty of the PERS Board not to encumber, divert, or reduce the pension trust assets. See Art. VIII, Sec. 15, Mont. Const.

Both arguments are without merit. The cases cited by the State do not apply in the instant case because PERS and DMA are not suing one another. Rather, the two agencies are trying to recoup Peters’ retirement benefits from Peters. The District Court’s reliance on Sunshine Anthracite Coal Co. was proper. The State was the named Defendant on all the pleadings and the named party to the Consent Judgment. Thus, the judgment against the State is binding on the PERS and the DMA. Similarly, Amicus’ contention is without merit because there is nothing in the District Court’s order requiring the PERS Board to deplete the pension trust assets. The effect of the court’s order was not that the PERS will not be reimbursed the $35,970.46. Rather, the effect of the court’s order was simply that reimbursement of the sum must come from someone other than Peters. Upon the foregoing, we hold the District Court did not err in concluding that PERS and DMA were one party.

Issue 3

Did the District Court err when it ordered the State to pay Peters his full settlement as written in the parties’ Consent Judgment, without any set-off for PERS claims?

The State argues that the District Court’s enforcement order improperly amended the Consent Judgment. Specifically, the State contends that by refusing its $35,970.46 set-off claim, the District Court added new relief not contained in the terms of the Consent Judgment, and substantially altered the rights of the parties as originally determined. The State relies on State ex rel. Vaughn v. District Court (1941), 111 Mont. 552, 111 P.2d 810, for the rule that a court may amend or modify a judgment to remedy an error or to clarify an ambiguity, but a court is without jurisdiction to substantially alter the rights of parties as originally determined. Vaughn, 111 P.2d at 811.

The State also argues that the District Court’s enforcement order violated Montana’s parol evidence rule, § 28-2-905, MCA, which states in relevant part:

Whenever the terms of an agreement have been reduced to writing ... it is to be considered as containing all those terms. Therefore, there can be ... no evidence of the terms of the agreement other than the contents of the writing ....

The State argues that the District Court violated this rule by imposing on the State the “additional” obligation of paying Peters’ retirement benefits.

Peters argues that the parol evidence rule is precisely the reason why the court’s enforcement order is not in error. Peters contends that the court followed the parol evidence rule by refusing to make the State’s belated set-off claim part of the original Consent Judgment. Peters also argues that in strictly construing the terms of the Consent Judgment as written, the court followed general principles of contract law. See Hohensee v. Chemodurow (1970), 155 Mont. 288, 293, 470 P.2d 965, 967 (“It is not the province of courts to make contracts for parties sui juris, but rather to interpret and enforce them ... in accordance with their terms.”) (citation omitted).

We agree with Peters. The State’s argument that the District Court amended the original judgment is without merit. In ordering the State to pay Peters all of his pension benefits “as if he were not terminated,” the District Court simply followed basic principles of contract law by enforcing the terms of the original Consent Judgment as written. In ordering that the State’s set-off claim was barred by Rule 13(a), the District Court complied with the parol evidence rule by refusing to consider a term not contemplated in the original Consent Judgment. We conclude that the District Court did not err when it ordered the State to pay Peters his full settlement without any set-off for PERS claims.

Upon the foregoing, the District Court’s enforcement order is affirmed.

JUSTICES TRIEWEILER, NELSON, REGNIER and GRAY concur.


author: JUSTICE TRIEWEILER

text:
    STEPHEN NELSON, individually and as Personal Representative of the Estate of Trina Falcon Nelson, deceased, Plaintiff and Appellant, v. MARK DRISCOLL and BUTTE-SILVER BOW COUNTY, a political subdivision of the State of Montana, Defendants and Respondents.
    No. 97-222.
    Ordered November 7, 1997.
    54 St.Rep. 1190. 948 P.2d 256.
    285 Mont. 355.
   OPINION AND ORDER

Plaintiff Stephen Nelson (Stephen) appealed an order of the District Court for the Second Judicial District, Silver Bow County, denying his motion for reconsideration. Defendants Mark Driscoll and Butte-Silver Bow County (Driscoll or collectively the County) filed a motion to dismiss the appeal on the basis that the Notice of Appeal was not timely filed.

Background

In the early morning hours of February 2, 1995, Stephen and his wife Trina were out drinking at a local casino. Around closing time, Trina tried to drive herself and Stephen home in their car. The roads were very icy and the car fishtailed going around a corner. Driscoll, a law enforcement officer with Butte-Silver Bow County, stopped the car. Trina admitted that she had been drinking, but because she did not appear intoxicated or exhibit any of the usual symptoms or behaviors of intoxication, Driscoll concluded that he had no probable cause to arrest her for DUI. Due to the fact that both Trina and Stephen had been drinking and because of the condition of the roads, Driscoll told them to park the car. Trina refused Driscoll’s offer of a ride home insisting that she would call a friend.

Trina began walking home while Stephen hung around the car. After realizing that Driscoll was keeping an eye on the car to prevent them from driving off, Stephen decided to walk home as well. Two witnesses observed Trina as she was walking and recounted later that she appeared to be having no problems in that respect. Within half an hour, Trina was struck and killed by a motorist. Both Trina’s and the motorist’s blood alcohol levels were determined to be well over .20.

Stephen sued the County alleging negligence and violation of 42 U.S.C. § 1983 in connection with Trina’s death. After discovery, cross motions for summary judgment were filed. The parties agreed that there were no material facts in dispute, but each argued those facts to a different legal conclusion as regards liability.

The County argued on the basis of Montana case law that it had no duty to Trina because there was no probable cause to arrest; that there was no “special duty” because there was no special relationship between Driscoll and Trina; and that Driscoll had the benefit of the defense of qualified immunity. It also argued that there was no basis for the § 1983 action because Trina had not been deprived of any constitutional right, privilege or immunity and, on the basis of DeShaney v. Winnebago Cty. Soc. Servs. Dept. (1989), 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249, the Fourteenth Amendment does not require the State to protect life, liberty and property of its citizens against private actors, absent a special relationship.

Stephen argued that the County had a statutory and special duty under § 53-24-303, MCA(1993), and a common law duty to protect Trina under the same Montana cases cited by the County and that if, in fact, there was found to be no duty (and hence no negligence) then the § 1983 action was viable because if Driscoll had no probable cause to arrest Trina for DUI, then he had no authority to “seize” her vehicle by telling her to park it. Hence Trina’s constitutional right to be free from unlawful seizures under the Fourth Amendment was violated.

The District Court granted summary judgment to the County concluding that the County did not owe a duty of care to Trina; that § 53-24-303, MCA, was inapplicable; that the § 1983 action would not lie because neither Trina nor Stephen were deprived of any constitutional right; and that Fourteenth Amendment due process was not implicated. The court cited DeShaney, for this latter conclusion. Judgment was entered on January 21, 1997, and Notice of Entry of Judgment was filed and served the following day. On January 30, 1997, Stephen moved for reconsideration based on Kneipp v. Tedder (3d Cir. 1996), 95 F.3d 1199. In Kneipp, the Third Circuit Court of Appeals adopted the “state-created danger” theory as supporting a § 1983 action, this theory having been alluded to in DeShaney.

In his motion for reconsideration, Stephen contended that, [s]ummary judgment ... may have been inappropriate for the reasons that the defendants’ conduct may have constituted a state created danger which is a viable mechanism for establishing a constitutional violation under civil rights law. Therefore, material questions of fact exist which would preclude summary judgment and warrant the determination by a jury.

In his brief in support of the motion, Stephen argued the four-part analysis set forth in Kneipp. The County objected to the motion contending that Stephen had set out nothing new in the way of facts or law.

On March 3, 1997, the District Court denied Stephen’s motion for reconsideration on the basis that factual differences existed between the case at bar and Kneipp. Stephen filed his Notice of Appeal on April 3, 1997. The County moved to dismiss the appeal on April 29, 1997, on the basis that Stephen’s Notice of Appeal was not timely filed. Thus, the question before this Court is whether Stephen’s Notice of Appeal was filed in a timely manner.

Discussion

At the time Stephen filed his motion for reconsideration and his subsequent Notice of Appeal, Rule 5(a), M.R.App.P., provided in pertinent part:

(1) In civil cases the notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment; but if the State of Montana, or any political subdivision thereof, or an officer or agency thereof is a party the notice of appeal shall be filed within 60 days from the entry of the judgment or order or 60 days from the service of notice of the entry of judgment. ...
(4) If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion.

Since Butte-Silver Bow County is a political subdivision of the State of Montana, Stephen’s Notice of Appeal must have been filed within 60 days from the entry of the judgment or order, 60 days from the service of the Notice of Entry of Judgment or 60 days from the grant or denial of one of the motions set out in Rule 5(a)(4), M.R.App.P.

In its motion to dismiss the appeal, the County contends that since a motion for reconsideration is not one of the motions referred to in Rule 5(a)(4) that would toll the time for filing of the appeal under Rule 5(a)(1), Stephen’s Notice of Appeal was not timely since it was filed more than 60 days after the Notice of Entry of Judgment. Stephen, on the other hand, contends that his Notice of Appeal was timely because his motion was, in substance, a motion to alter or amend the judgment, which, under Rule 5(a)(4), does toll the time for filing a notice of appeal under Rule 5(a)(1).

We have previously stated that a motion for reconsideration is not one of the motions referred to in Rule 5(a)(4), and that, in fact, a motion for reconsideration is not one of the post-judgment motions provided for, or authorized, by the Montana Rules of Civil Procedure. Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 11, 926 P.2d 1364, 1370; Taylor v. Honnerlaw (1990), 242 Mont. 365, 367, 790 P.2d 996, 997-98; Anderson v. Bashey (1990), 241 Mont. 252, 254, 787 P.2d 304, 305. Furthermore, a motion for reconsideration will not be equated to a Rule 59(g) motion to alter or amend a judgment unless the substance of the motion constructively requests the court to alter or amend the judgment. Haugen, 926 P.2d at 1370 (citing Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275).

Since they are not provided for in the rules of civil or appellate procedure, motions for reconsideration present a procedural trap for the unwary and a grave risk that an otherwise meritorious appeal will be dismissed on the sort of technical jurisdictional grounds that the County argues for here. Our prior warnings to the bar regarding this potential minefield have been largely ignored. Counsel continue to file motions for reconsideration simply assuming that such motions will fall within the provisions of Rule 59 (or in some cases Rules 50 or 52), M.R.Civ.P. That can be a dangerous and sometimes fatal assumption, indeed.

We have not heretofore set out any criteria by which to judge whether a motion for reconsideration is, in substance, a motion to alter or amend — it being our hope that counsel would simply discontinue the risky practice of filing such motions. Since it appears that is not to be the case, we conclude that it is appropriate that we now adopt criteria under which to evaluate motions for reconsideration in order to provide some future guidance to the bar with regard to this matter. The criteria which we adopt here are prospective, however. These criteria will apply to any motion to reconsider filed on or after the date of this decision.

In the future, in determining whether a motion designated as one for reconsideration is in substance a motion to alter or amend the judgment under Rule 59 which thereby tolls the time for filing a notice of appeal, we will first evaluate the motion to determine if the arguments advanced are consistent with the relief authorized by Rule 59. While Rule 59 does not identify any specific grounds supporting a motion to alter or amend a judgment, commentators have identified four subject areas where parties have successfully pursued such a motion. These four areas include motions which are filed: 1) to correct manifest errors of law or fact upon which the judgment was based; 2) to raise newly discovered or previously unavailable evidence; 3) to prevent manifest injustice resulting from, among other things, serious misconduct of counsel; or 4) to bring to the court’s attention an intervening change in controlling law. 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2810.1 (1995). Accordingly, where a motion designated as one for reconsideration substantively addresses one of these four areas and the arguments advanced are consistent with that, we are more likely to conclude that the motion is actually a motion to alter or amend judgment.

Conversely, various federal cases interpreting the federal counterpart to Montana’s Rule 59 provide guidance as to what a motion to alter or amend is not. A motion to alter or amend is “not intended merely to relitigate old matters nor are such motions intended to allow the parties to present the case under new theories.” Diebitz v. Arreola (E.D.Wis. 1993), 834 F.Supp. 298, 302. A motion to alter or amend should not present arguments which the court has already considered and rejected. Fuller v. M.G. Jewelry (9th Cir. 1991), 950 F.2d 1437, 1442. A motion to alter or amend “cannot be used to raise arguments which could, and should, have been made before judgment issued.” Beyah v. Murphy (E.D.Wis. 1993), 825 F.Supp. 213, 214; F.D.I.C. v. World University Inc. (1st Cir. 1992), 978 F.2d 10, 16. A motion made pursuant to Rule 59 “is not intended to routinely give litigants a second bite at the apple, but to afford an opportunity for relief in extraordinary circumstances.” Dale & Selby Superette & Deli v. Dept. Of Agr. (D.Minn. 1993), 838 F.Supp. 1346, 1348. Accordingly, where a motion designated as one for reconsideration seeks to accomplish one or more of the matters referred to in this paragraph, we are more likely to conclude that it is not substantively a motion to alter or amend, but, rather, is in fact a motion for reconsideration.

Since our decision here is prospective, however, we will not apply these criteria to Stephen’s motion to reconsider. Stephen argues that his motion, designated as one for reconsideration, was substantively a motion to alter or amend judgment because at the time he filed his motion for summary judgment, he did not have the benefit of the Circuit Court’s decision in Kneipp and that, as a result, the trial court erred as a matter of law in not considering and ruling on the basis of the holding in that case. Stephen contends that his motion was filed to allow the court to alter or amend its judgment to correct its mistake of law. Stephen’s argument is only marginally persuasive. Nonetheless, since we have not heretofore articulated any standards by which to judge motions for reconsideration and in order to avoid the harsh penalty of dismissing Stephen’s appeal on this technical point, we conclude that it is appropriate that we give Stephen the benefit of the doubt in this case.

Accordingly, we hold that Stephen’s motion for reconsideration is, in substance, a motion to alter or amend the judgment and that, thus, the time for filing the Notice of Appeal was tolled. Stephen filed his Notice of Appeal on April 3, 1997, 31 days from the date his motion was denied and well within the 60-day time limit. Therefore,

IT IS ORDERED, that the County’s motion to dismiss be and the same is, hereby, DENIED.

IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record and to the Hon. J ames E. Purcell, District Judge, presiding.

DATED this 7th day of November, 1997.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY, LEAPHART and REGNIER concur.

JUSTICE TRIEWEILER

concurring.

I concur with the majority’s order which denies the respondents’ motion to dismiss the appeal. I do not agree with all that is said in the opinion preceding the order.

Specifically, I disagree with the adoption of criteria for the determination of whether a motion for reconsideration is, in substance, a motion to alter or amend. I believe the adoption of more criteria simply further complicates an area of procedural law already rife with traps which preclude resolution of disputes based on their merits. Furthermore, assuming the criteria adopted by the majority were applicable to this case, I would conclude that, based on the first criteria, Nelson’s motion was, in substance, a Rule 59 motion.

JUSTICE HUNT joins in the foregoing concurrence.


author: JUSTICE HUNT JUSTICE GRAY, CHIEF JUSTICE TURNAGE, JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS CASTLE, Defendant and Appellant.
    No. 96-172.
    Heard June 17, 1997
    Submitted June 19, 1997.
    Decided November 12, 1997.
    54 St.Rep. 1194. 948 P.2d 688.
    285 Mont. 363.

      For Appellant: Vernon E. Woodward, Hendrickson, Everson, Noenning & Woodward, Billings.

      For Respondent: Dennis Paxinos, Yellowstone County Attorney; Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Douglas Castle (appellant) appeals from a jury verdict and judgment of the Thirteenth Judicial District Court, Yellowstone County convicting him of deliberate homicide. We reverse and remand.

Appellant raises two issues on appeal.

1. Did the District Court err when it refused appellant’s proposed instruction that assault is a lesser included offense of deliberate homicide?

2. Did the admission of Cassell’s hearsay statements violate the Montana Rules of Evidence?

FACTUAL BACKGROUND

On November 18, 1994, John Formo (Formo) was murdered. His body was discovered the next morning in a dumpster in an alleyway behind the 500 block of Birch Avenue in Laurel, Montana. Detectives from the Yellowstone County Sheriff’s Department and police officers from the Laurel Police Department who investigated the scene noticed a trail of blood in the snow leading to the dumpster from the backdoor of a house located at 506 Birch Avenue. They thus took the occupants of that house into custody, including Michelle Herren, who was disabled and was the tenant of the home, Walter Cassell, Thomas “Bear” Baker, Forrest “Snake” Snyder, and appellant Douglas Castle.

Appellant initially denied having any knowledge of Formo’s death. During subsequent questioning by Detective Jensen, however, he stated that he and Snyder or “Snake” had met Formo near the railroad tracks earlier during the day of November 18, where they drank alcohol. Appellant estimated they drank for about an hour and a half, and then went to the house on Birch Street where they continued drinking. He told Detective Jensen that while they were drinking at that house, Formo said “Fuck the FTRA,” which upset him. “FTRA” stands for the Freight Train Riders of America, of which appellant claimed to be a member. Snyder then hit Formo several times while the two stood in the kitchen area. Appellant admitted that he also then went into the kitchen and punched Formo three times in the jaw and once on the side of the head. When he hit Formo, Formo began bleeding in the jaw area. Appellant then went to the bathroom.

When appellant came out of the bathroom, Formo was lying on the living room floor in front of the couch. Appellant watched Cassell walk into the kitchen and come out with a knife. Cassell proceeded to stab Formo numerous times. Appellant also saw Cassell kick Formo once in the head.

When Cassell finished stabbing Formo, it was not yet dark. Appellant estimated that they thus waited about 30 minutes before attempting to place Formo in a garbage bag. When they were unable to do so, Cassell and he carried the body outside and placed it in the dumpster behind the house. Appellant claims that Formo was dead when they put the body in the dumpster.

Detective Jensen also questioned Cassell, who made a statement. According to Cassell, everyone present at the house was drinking the night of the murder. Snyder, Baker and Formo were in the kitchen, and Formo broke a window. Baker then hit Formo. Next, appellant walked into the kitchen and hit Formo. After being punched, Formo walked into the living room, where Cassell confessed that he began beating Formo. When he beat Formo, blood went everywhere. Cassell further confessed that he then went into the kitchen, got a knife, came back and stabbed Formo. Later, appellant and he carried the body to the dumpster. At first, Cassell stated that Formo was dead when they took him to the dumpster. However, he later stated that Formo was still alive, and that appellant was going to cut Formo’s throat.

The State subsequently charged appellant by information with deliberate homicide. Appellant pleaded not guilty. He filed a motion in limine to exclude certain hearsay statements of Cassell that implicated appellant. The District Court denied the motion. Appellant also offered a proposed jury instruction regarding the offense of assault. His theory of the case was that he was guilty only of assaulting, but not murdering, Formo. The District Court refused the proposed instruction. Following a jury trial, appellant was found guilty of deliberate homicide and was sentenced to 60 years in prison. He now appeals.

ISSUE ONE

Did the District Court err when it refused appellant’s proposed instruction that assault is a lesser included offense of deliberate homicide?

It is a fundamental rule in this state that a criminal defendant is entitled to jury instructions that cover every issue or theory having support in the evidence. State v. Gopher (1981), 194 Mont. 227, 229, 633 P.2d 1195, 1196 (citing State v. Buckley (1976), 171 Mont. 238, 557 P.2d 283.) A defendant may be convicted only of the “greatest included offense about which there is no reasonable doubt.” Section 46-16-606, MCA. A defendant is therefore entitled to an instruction on a lesser included offense if any evidence exists in the record from which the jury could rationally find him guilty of the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. The purpose of this rule is to ensure reliability in the fact-finding process. It avoids the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal. Gopher, 633 P.2d at 1197-98.

Appellant maintains that the very harm that the rule seeks to avoid occurred in this case when the District Court refused his proposed jury instruction on assault. He contends that under § 46-1-202(8)(c), assault is a lesser included offense of deliberate homicide and that evidence at trial supported his defense that he was guilty only of assaulting, but not murdering, the victim. Alternatively, he argues that even if assault is not necessarily a lesser “included” offense of a deliberate homicide, it is a lesser “related” offense and as such he was entitled to the instruction. In support of that alternative argument he cites Keeble v. United States (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844; People v. Williams (Mich. 1985), 374 N.W.2d 158; and People v. Geiger (Cal. 1984), 674 P.2d 1303. He maintains there was a legitimate question as to causation of the murder and that the District Court “gutted” his defense by refusing his instruction.

The State, on the other hand, argues that the trial court did not err in refusing to instruct the jury on the offense of assault, because assault is not a lesser included offense of deliberate homicide. It contends that this Court has not adopted the “inherent relationship” test found in Keeble. Instead this Court applies the test announced in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct.180, 76 L.Ed.2d 306 to determine whether an alleged lesser offense is included within the greater offense. State v. Steffes (1994), 269 Mont. 214, 232, 887 P.2d 1196, 1207. Under that test, the court ‘looks to the statutory elements of the respective crimes to determine if each offense requires proof of a fact which the other does not....” Steffes, 887 P.2d at 1207. The State argues that the Blockburger test is not satisfied because deliberate homicide requires proof that a person purposely or knowingly causes the death of another, while assault is committed when the person purposely or knowingly causes bodily injury to another. Sections 45-5-102 and 45-5-201, MCA. Because each requires proof of an element that the other does not, assault is not a lesser included offense.

Upon reviewing this case, we must first determine whether, as a matter of law, assault is a lesser included or a lesser related offense of deliberate homicide. If it is, we must then determine whether appellant’s proposed instruction was supported by the evidence. State v. Greywater (1997), [282 Mont. 28], 939 P.2d 975, 977 (citation omitted).

The State is correct in noting that this Court has adopted the so-called Blockburger test. But the statutory definition of “included offense” contained at § 46-1-202(8), MCA, is broader than the Block-burger test. That statute contains three alternative definitions of “included offense.” Subsection (8)(a) of that statute defines “included offense” as one that “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Section 46-1-202(8)(a), MCA. As we explained in Fisch, a proper analysis of whether an offense is an “included offense” under that subsection would include an application of the Blockburger test. Fisch, 881 P.2d at 629.

At issue in this case, however, is whether the assault is an included offense under subsection 8(c). That subsection defines “included offense” as one that “differs from the offense charged only in the respect that a less serious injury or risk to the same person, ... or a lesser kind of culpability suffices to establish its commission.” Section 46-1-202(8)(c), MCA. We addressed that statutory definition for the first time in Fisch, where we held that under that subsection, an offense is a lesser included offense if it differs from the one charged only by way of a less serious injury or a less serious risk or a lesser kind of culpability. Fisch, 881 P.2d at 628.

One commits the crime of deliberate homicide if he “purposely or knowingly causes the death of another human being.” Section 45-5-102(1)(a), MCA. One commits assault if he “purposely or knowingly causes bodily injury to another.” Section 45-5-201(1)(a), MCA. The only difference between the two is that a “less serious injury ... suffices to establish” the crime of assault. Section 46-1-202(8)(c), MCA. This Court thus holds that under the express terms of subsection 8(c), assault is an included offense of the crime of deliberate homicide. Because this Court holds that assault is indeed a lesser included offense, the Court need not reach appellant’s alternative argument that the instruction should be given because assault is a lesser “related” offense.

Although this Court holds that assault is an included offense, that does not mean that an instruction on this offense must be given every time a defendant is charged with deliberate homicide. Rather, there must be some basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater offense. In this case, there was evidence supporting the theory of the defense that appellant was guilty only of assaulting, but not of murdering Formo.

Kenneth Mueller, M.D., the pathologist who examined Formo, testified that the causes of death were stabbing and severe blunt force injuries to Formo’s head. Formo had 16 stab wounds. The blows to Formo’s head fractured his skull and caused his brain to hemorrhage, resulting in subdural hematoma. The type of blows that caused this injury were not simple punches or even the type that would normally be inflicted by a boxer. Rather, they were the type one would expect if the victim was hit in the head with an instrument such as a bat or if the victim’s head was supported on one side by the ground or a wall. According to Dr. Mueller, those injuries probably would have quickly rendered Formo unconscious and incapable of any voluntary movements.

This medical evidence is consistent with appellant’s defense that although he punched Formo in the jaw while they were standing in the kitchen, those blows amounted only to assault and did not cause his death. At that time, Formo’s head was not supported by the ground or the wall. Moreover, evidence indicates that Formo remained conscious and walked to the living room. Thus appellant’s punches did not fracture the skull or cause subdural hematoma. Evidence indicates that it was Cassell who dealt the fatal blows and multiple stab wounds while Formo lay on the living room floor.

The State argues that Formo was still alive when appellant helped Cassell discard the body in the dumpster. Although Dr. Mueller testified that Formo may have lived up to one or two hours after receiving the severe blows to the head, he also testified that he could have died within 15 minutes and that at least one stab wound on Formo’s lower buttocks was consistent with a post-mortem wound. The position of Formo’s body in the dumpster was such that the stab wound could not have been inflicted after the body was placed in the dumpster. This evidence, is consistent with the defense’s theory that Formo died before he was placed in the dumpster.

We conclude that there is some evidence that supports appellant’s theory that he is guilty only of assaulting, but not murdering, Formo. A jury could rationally find that appellant committed assault, but not deliberate homicide. It is possible that the jury found appellant guilty of deliberate homicide rather than let his admitted crime go unpunished. Appellant is thus entitled to a new jury trial with his proposed instruction on the offense of assault.

The judgment of the District Court is reversed, and the sentence is vacated. The cause is remanded for a new trial.

ISSUE TWO

Did the admission of Cassell’s hearsay statements violate the Montana Rules of Evidence?

Appellant contends that the District Court erred in admitting certain portions of Cassell’s confession. During the investigation following the murder of Formo, Detective Jensen had tape-recorded two interviews with Cassell in which Cassell admitted to stabbing and beating Formo and also implicated appellant. Cassell subsequently invoked his Fifth Amendment Right against self-incrimination and did not testify at trial. The District Court allowed Jensen to read the following portions of the transcript of Cassell’s interview to the jury:

Q: [by Jensen] Okay, Walt, why don’t you tell us what happened last night?
A: [by Cassell] Here it comes. We were all drinking. We were all fucked up with — we’d been drinking a lot of wine, a lot of beer. Forrest was in the kitchen with the guy. He said he was fucking up and I was driving Michelle to the store. I came back and the next I know Forrest and him fucking around in the kitchen and then the guy broke the window.
Q: Who broke the window?
A: The other guy, he broke the fucking window and then — let me try and get this straight. I don’t know, then — Bear went in there, hit him a few times and then Doug went in there and hit him a few more times so he come out in the living room and I beat on him man and blood went everywhere. Then I went and got the knife and stabbed him and stabbed him.
Q: Where did you stab him at?
A: I thought a kidney stab.
Q: What kind of knife did you use?
A: Butcher knife of some sort. I don’t know.
Q: Where is that knife at?
A: I don’t know.
Q: Then what happened?
A: Then we thought he was dead and we tried putting him in a bag, took him outside, threw him in the fucking dumpster. Doug was going to cut his throat and make sure he was dead.
Q: Was he still moving when you tried to put him in this bag?
A: Yeah, he was still trying to reach out of the bag and get out of the bag. He was still alive.
Q: What did Doug say then? Did he say anything?
A: He said, “I don’t care. I’ll take the fucking rap.”
Q: You and Doug carried him outside?
A: Yeah.

Appellant does not object to the portions of the statement wherein Cassell admitted beating and stabbing Formo. Indeed, it was he who sought their admission on the grounds that, they constituted statements against Cassell’s penal interest and should therefore be admitted under the hearsay exception found in Rule 804(b)(3), M.R.Evid. He objects only to the following hearsay statements wherein Cassell implicates him:

(1) Then we thought he was dead and we tried putting him in a bag, took him outside, threw him in the fucking dumpster. Doug was going to cut his throat and make sure he was dead.
(2) Yeah, he was still trying to reach out of the bag and get out of the bag. He was still alive.
(3) He [Doug Castle] said, “I don’t care. I’ll take the fucking rap.”

Neither party disputes that those statements constitute hearsay within the meaning of Rule 801, M.R.Evid, and neither party disputes that the declarant Cassell was “unavailable” within the meaning of Rule 804, M.R.Evid. Appellant argues that the statements do not fall within any of the hearsay exceptions in Rules 803 and 804 and are therefore inadmissible under Rule 802, M.R.Evid. Moreover, he contends that admitting those statements violated his rights to confrontation guaranteed by the Sixth Amendment to the United States Constitution and by Article II, Section 24, Constitution of Montana. He maintains that the statements lack any separate indicia of reliability, because in fact the victim’s throat was not slashed; medical testimony indicates that after sustaining the blows to his head, the victim was incapable of making voluntary movements; and the victim died prior to being placed in the dumpster.

The State, on the other hand, contends that the statements are admissible under Rule 804(b)(3), M.R.Evid., because they constitute statements against penal interest. It further argues those statements are admissible even without corroborating evidence, because the last line of Rule 804(b)(3) requires corroborating circumstances only when the declarant’s statement exculpates the accused. In this case Cassell’s statements inculpate the accused. Finally, it notes that certain parts of the statements, such as the statement that the body was thrown into the dumpster, are corroborated, and that the uncorroborated portions do not prejudice appellant.

Rule 804(b)(3) provides an exception to the hearsay rule where a declarant makes a statement which “at the time of its making ... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless the declarant believed it to be true.” Rule 804(b)(3), M.R.Evid. To fall within the exception embodied in that rule, the declarant’s statements must thus be against his own penal interest. That portions of a declarant’s confession are admissible because they are self-inculpatory, however, does not necessarily make the collateral non-inculpatory statements either credible or admissible, particularly where the declarant implicates another person. In this regard, the United States Supreme Court’s decision in Williamson v. United States (1994), 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476, is instructive. In that case, the Supreme Court examined Fed.R.Evid. 804(b)(3), which is identical in pertinent parts to Montana’s rule. The Comet held that the exception embodied in Rule 804(b)(3) does not extend to non-self-inculpatory statements, even if they are made within the context of a confession. As the Supreme Court stated:

Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. ... The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else.

Williamson, 512 U.S. at 599-601, 114 S.Ct. at 2434-2436.

In this case, Cassell’s statements wherein he confessed to beating and stabbing the victim fall squarely into the exception, because they tend to subject him to criminal liability. However, in other parts of his statement, Cassell shifts the blame to appellant by implying that it was appellant and not he who actually killed the victim. Specifically, he states Formo was still alive when they dumped the body in the dumpster and it was appellant who volunteered to “take the ... rap” by cutting the victim’s throat and ensuring the victim was dead. These statements are classic examples of inadmissible hearsay. They lack any indicia of trustworthiness. That Formo’s throat was not in fact cut only highlights the unreliability of such statements. Moreover, appellant was denied the valuable right to cross-examine the only witness who provided any direct evidence that appellant intended Formo’s death.

Of the challenged statements, Cassell’s statement that they tried putting the victim’s body in a bag and then threw him in the dumpster is the only one that is self-inculpatory. However, that statement should be redacted to delete appellant’s alleged involvement.

Because we find that the admission of these statements violated the Montana Rules of Evidence, we need not address whether their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article II, Section 24, Constitution of Montana.

Although these statements do not fall within Rule 804(b)(3)’s purview, the District Court held that Cassell’s statements were admissible under Rule 106, M.R.Evid. The State had contended that under the rule of completeness, if the District Court admitted the portion of Cassell’s statement wherein he admitted beating and stabbing Formo, it should also admit the other parts of the statement wherein he implicated appellant, so as not to mislead the jury into believing that Cassell had declared sole responsibility for the crime.

Rule 106, M.R.Evid., provides in part:

Remainder of or related acts, writings, or statements.
(a) When part of an act, declaration, conversation, writing or recorded statement or series thereof is introduced by a party;
(1) an adverse party may require the introduction at that time of any other part of such item or series thereof which ought in fairness to be considered at that time; or
(2) an adverse party may inquire into or introduce any other part of such item of evidence or series thereof.

The completeness doctrine stems from the principle restricting the scope of cross-examination to matters testified to on direct examination. It broadens this principle by allowing an immediate introduction of the balance of portions of the same document, correspondence or conversation, where fairness so dictates. State v. Campbell (1978), 178 Mont. 15, 19, 582 P.2d 783, 785. The balance is admitted only where it is relevant and more fully explains or provides context to parts already admitted. Campbell, 582 P.2d at 785 (citing U.S. v. Littwin (6th Cir. 1964), 338 F.2d 141, 146; State v. Collett (1946), 118 Mont. 473, 479, 167 P.2d 584, 587).

Rule 106 does not, however, provide a separate basis for admissibility. As we stated in Campbell, this rule is separate and distinct from the hearsay rule. Campbell, 582 P.2d at 785. In that case we held that the defendant’s line of inquiry to an informant did not open the door to all hearsay communications under this doctrine. Campbell, 582 P.2d at 785. Rule 106 does not make admissible statements that would otherwise be inadmissible. We therefore hold that the District Court erred in admitting the enumerated hearsay statements. Because we have already held that this case should be reversed, we need not reach the issue of whether the admission of those statements constituted reversible error.

Reversed and remanded for further proceedings consistent with this opinion.

JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on issue two, regarding the inadmissibility of certain of Cassell’s statements. I dissent from that opinion, both procedurally and substantively, on issue one, whether the District Court erred in refusing appellant’s proposed instruction that assault is a lesser included offense of deliberate homicide.

Procedurally, it is my view that appellant waived the § 46-1-202(8)(c), MCA, argument on which the Court resolves the first issue by not raising it in the District Court. Appellant conceded in this Court, as he did in the District Court, that simple assault is not an “included offense” of deliberate homicide under the Blockburger test we use in applying § 46--202(8)(a), MCA. Thus, the Court quite correctly does not address the Blockburger test. The Court is incorrect, however, in stating that the issue here “is whether the assault is an included offense under subsection (8)(c) [of § 46-1-202, MCA].” In the District Court, and in his opening brief on appeal to this Court, appellant relied on the “related offense” — or “cognate offense” — theory for his argument that he was entitled to a lesser included offense instruction in this case, an argument similar to the one we rejected in State v. Smith (1996), 276 Mont. 434, 916 P.2d 773. The record reflects, and appellant conceded during oral argument, that he did not raise § 46-1-202(8)(c), MCA, in the District Court and raised it here for the first time only in his reply brief. On this procedural background, we are precluded from addressing the subsection (8)(c) argument for two reasons. The first is that a party may not change the theory on appeal from that advanced in the district court. State v. Fisch (1994), 266 Mont. 520, 524, 881 P.2d 626, 629 (citation omitted). The second is that a reply brief “must be confined to new matter raised in the brief of the respondent.” Rule 23(c), M.R.App.P. For both of these reasons, it is my view that we must decline to address appellant’s argument under § 46-1-202(8)(c), MCA.

Indeed, Fisch is controlling on this procedural waiver. There, the defendant was charged with aggravated assault and offered a proposed instruction that negligent endangerment is a lesser included offense of aggravated assault under § 46-1-202(8)(c), MCA. Fisch, 881 P.2d at 627-28. The district court refused the instruction and we held that it was correct in doing so. Fisch, 881 P.2d at 629. The defendant also argued that negligent endangerment is a lesser included offense of aggravated assault under § 46-1-202(8)(a), MCA. We observed that he had not offered the instruction pursuant to § 46-1-202(8)(a), MCA, in the district court and cited to State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016, for the long-established axiom that a party may not change the theory on appeal from that advanced in the district court. On that basis, we declined to address the argument presented under § 46-1-202(8)(a), MCA. Fisch, 881 P.2d at 629.

The present case requires the same response as Fisch. Appellant having failed to advance his § 46-1-202(8)(c), MCA, argument in the District Court, we must decline to address it here. To reverse a trial court on a basis never presented to it for resolution — as the Court does here with its § 46-1-202(8)(c), MCA, analysis — is both contrary to the law and unfair to the District Court. I cannot agree.

Substantively, and even if § 46-1-202(8)(c), MCA, were at issue here, I also disagree with the Court’s conclusion that a simple assault is merely a “less serious injury” than a deliberate homicide. It is clear that “bodily injury” as defined in § 45-2-101(5), MCA, is a “less serious injury” than “serious bodily injury” as defined in § 45-2-101(64), MCA. Thus, the “less serious injury” concept in § 46-1-202(8)(c), MCA, is clearly and easily applied in the context of various assault offenses under Part 2, Assault, of Chapter 5, Offenses Against the Person, of Title 45, Crimes.

It is my view, however, that the “bodily injury” required for a simple assault is most assuredly not a “less serious injury’ than deliberate homicide. While homicide may be perceived by some as the “ultimate injury,” death is not an injury of the most serious type but, rather, death is death and it is in a category of its own. The very structure and organization of the Offenses Against the Person contained in the MCA support this view. The offense of deliberate homicide is not set forth as the first and foremost offense in Part 2 of Chapter 5 of Title 45, which delineates the various types of assaults. Rather, the offense of deliberate homicide is the first pífense defined in Part 1 ef Chapter 5, Offenses Against the Person, of Title 45, Crimes. Indeed, Part 1 is entitled “Homicide,” and the various homicide offenses are therein grouped together, to the exclusion of other types of offenses. Each of those defined offenses addresses the “death of another human being;” none includes the word “injury.” See §§ 45-5-102 through 45-5-104, MCA. Nothing in that Part suggests or indicates that a “death” properly can be likened to an assault with the only difference being the degree of “injury.” Indeed, the compartmentalization of the homicide offenses away from the assault offenses reflects the legislature’s perception and intent that a homicide is not merely a more serious injury than a simple assault.

I would affirm the District Court’s refusal of appellant’s proposed lesser included offense instruction on assault.

JUSTICE NELSON joins in the foregoing concurring and dissenting opinion of JUSTICE GRAY.

CHIEF JUSTICE TURNAGE,

dissenting:

I join in the foregoing concurring and dissenting opinion of Justice Karla M. Gray.

In addition to the well-reasoned opinion of Justice Gray in dissenting to Issue One, which is clearly supported by the statutes and precedent cited therein, I write to express my further concern about the majority discussion of this issue.

The standard of review for jury instructions is whether the instructions, as a whole, hilly and fairly instruct the jury on the law applicable to the case. State v. Leyba (1996), 276 Mont. 45, 51, 915 P.2d 794, 797. The district court is given broad discretion in instructing the jury. State v. Long (1995), 274 Mont. 228, 234, 907 P.2d 945, 948.

The majority opinion, when reduced to its fundamental holding, states that in this trial for deliberate homicide under § 45-5-102(1), MCA (“[a] person commits the offense of deliberate homicide if: (a) the person purposely or knowingly causes the death of another human being ...”), punishable by not more than 100 years imprisonment in the state prison, the jury must be instructed that if any evidence exists in the record on which it may base a finding of the lesser included offense of simple assault, a misdemeanor under § 45-5-201(1)(a) or (c), MCA (“[a] person commits the offense of assault if he: (a) purposely or knowingly causes bodily injury to another; ... (c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual...”), punishable by a fine of $500 or six months in the county jail, the jury may then proceed to ignore the evidence of the vicious killing of victim Formo and find Castle guilty of a misdemeanor.

The facts of this case leave no room for instructing the jury that appellant Castle’s participation in taking the life of John Formo warrants consideration of his conduct as only a misdemeanor assault.

Castle participated in the vicious beating of Formo. Formo suffered multiple blunt force injuries all over his head with bruising and swelling of his face, lips, nose, cheeks, forehead, ears, below the jaw, around the eyes, bruises on his neck from being choked with hands or an instrument, skull fractures in several places due to severe blows to the head and a hemorrhage around his brain causing his death.

After Formo had suffered these injuries, Castle and his partner in this crime, Walter Cassell, waited for approximately thirty minutes for their victim to die before they carried him to a garbage dumpster and placed him inside. The pathologist, Dr. Mueller, testified that Formo survived a minimum of one to two hours after being beaten. The jury had sufficient credible evidence to conclude that Formo was still alive when Castle and Cassell hauled him outside and placed him in the dumpster. In doing so, they assured Formo’s death, whereas he may have survived if he had not been subjected to such treatment and had instead received medical care.

Simple assault? Ridiculous. No jury could stretch credulity that far.

An instruction on purse snatching, under these facts, would make as much sense as an instruction on simple assault.

I would hold that the District Court did not abuse its discretion in refusing to instruct the jury on misdemeanor assault, and that the instructions given fully and fairly instructed the jury on the law applicable to the case.

JUSTICE TRIEWEILER

concurring.

I concur with the result of the majority decision and with the majority’s conclusion that assault is a lesser included offense of deliberate homicide pursuant to § 46-1-202(8)(c), MCA.

However, I do not agree with all that is said in the majority opinion. Specifically, I would not apply analysis from Blockburger v. United States (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, to determine whether an offense is an “included offense” pursuant to § 46-1-202(8)(a), MCA. The language of Montana’s “included offense” statute speaks for itself and does not require the superimposition of federal case law for interpretation. Furthermore, if federal case law was necessary, Blockburger was not the appropriate case on which to rely. Blockburger may include language which is relevant to double jeopardy analysis, but it is not applicable to an analysis of “included offenses.”

I also disagree with Justice Gray’s statement in her dissent that the issue of a “lesser included offense” instruction was not properly submitted to the District Court or raised in this Court. The defendant submitted a proposed instruction defining assault on the basis that it was a lesser included offense of deliberate homicide. To suggest that in order to make a proper record he need specify to the District Court the particular subparagraph of the lesser included offense statute pursuant to which the instruction must be given would sacrifice due process to a perceived technicality. I disagree with that approach. Furthermore, subsection (8)(c) was properly addressed in the appellant’s reply brief pursuant to Rule 23(c), M.R.App.P. Three pages of the respondent’s brief were dedicated to a discussion of whether assault is a “lesser included” offense pursuant to the Blockburger test. An appropriate response by the appellant included pointing out that it was not necessary to satisfy the Blockburger test which this Court has, in the past, applied to subsection (8)(a) because, in fact, Montana’s ‘lesser included” statute is broader than the Blockburger test.

Finally, it is appropriate to respond to portions of the dissent filed by Chief Justice Turnage which are totally unsupported by the record. When he states that Castle participated in a “vicious beating of Formo” and infers that that beating resulted in the injuries which caused Formo’s death, those statements are simply incorrect. The only evidence regarding Castle’s participation in the events which preceded Formo’s death establishes that Castle, a person with one arm, struck Formo three to four times with his fist and walked away to go to the bathroom. When he left Formo, Formo was still standing in the kitchen with no serious injury. When Castle returned from the bathroom, Formo had apparently been seriously beaten by others and was lying on the floor of the living room next to the couch. The blunt force injuries, the bruises on Formo’s neck, the skull fractures, the hemorrhage around Formo’s brain, and the stab wounds which all contributed to Formo’s death were admittedly inflicted by Walter Cassell, not the defendant. The State’s own pathologist testified that the blows struck by Castle would not have caused or contributed to Formo’s death. There was no evidence that anything done by Castle caused or contributed to Formo’s death.

Furthermore, this dissent’s characterization of the evidence regarding the issue of whether Formo was dead or alive when taken to the dumpster is incomplete and misleading. A complete and accurate description of Dr. Mueller’s testimony in that regard is set forth in the majority opinion.

After reciting the aforementioned injuries and inappropriately attributing them to the defendant, the Chief Justice’s dissent states: “Simple assault? Ridiculous. No jury could stretch credulity that far.”

If Walter Cassell was being tried based on the evidence presented in this case, I would agree. However, Douglas Castle was being tried and the facts relied on in this dissent are either inapplicable to him or disputed.

Flippant and inflammatory remarks, like those referring to “purse snatching,” might make interesting reading to those who are unfamiliar with the facts in this case; however, they are misleading and have no place in an honest discussion of the serious issues presented.

For these reasons, I specially concur with the majority opinion.