State v. Martin

Decision Date10 May 2001
Docket NumberNo. 99-627.,99-627.
Citation305 Mont. 123,23 P.3d 216,2001 MT 83
PartiesSTATE of Montana, Plaintiff and Respondent, v. James Gene MARTIN, a/k/a James Gene Trujillo, Defendant and Appellant.
CourtMontana Supreme Court

Margaret Borg and Leslie Ocks, Missoula Public Defenders Office, Missoula, MT, for Appellant.

Joe Mazurek, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, MT; Fred Van Valkenburg, Missoula County Attorney; Karen Townsend, Deputy Missoula County Attorney, Missoula, MT, for Respondent.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 James Gene Martin, a/k/a James Gene Trujillo (Martin), appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on a jury verdict finding him guilty of forgery, attempted deliberate homicide, felony theft, escape, aggravated burglary, and felony assault. We affirm in part and reverse in part.

¶ 2 Martin raises the following issues:

¶ 3 1. Does sufficient evidence support the verdict convicting Martin of attempted deliberate homicide?
¶ 4 2. Did the District Court err in refusing instructions on assault' on a peace officer as a lesser included offense of attempted deliberate homicide?
¶ 5 3. Did the court err in refusing instructions on mitigated attempted deliberate homicide?
¶ 6 4. Does sufficient evidence support the verdict convicting Martin of escape?
¶ 7 5. Does sufficient evidence support the verdict convicting Martin of aggravated burglary?
¶ 8 6. Does sufficient evidence support the verdict convicting Martin of felony assault?
¶ 9 7. Does sufficient evidence support the verdict convicting Martin of felony theft?
¶ 10 8. Did the prosecutor commit misconduct during closing argument and, if so, did the misconduct deprive Martin of a fair trial?
BACKGROUND

¶ 11 Just before 6:00 p.m. on October 21, 1998, Martin walked up to the drive-up window of the Western Security Bank in Missoula, Montana, and attempted to cash a forged check. The teller on duty recognized Martin from pictures which had been distributed to bank employees after he had passed an earlier forged check on the same bank account. The teller attempted to stall Martin while her supervisor called the police.

¶ 12 Missoula City Police Sergeant Robert Heinle (Heinle) responded to the call from the bank. As Heinle, in full police uniform, approached the bank on foot, Martin spotted him and began to run away. Heinle gave chase. With Heinle shouting "Halt" or "Stop," they crossed the street, weaving between vehicles stopped at a red light in rush-hour traffic. When they reached a parking lot across the street from the bank, Martin turned and fired two shots from a Colt handgun at Heinle. One shot hit Heinle in the shoulder and damaged his spinal cord, paralyzing him and dropping him to the ground immediately.

¶ 13 Martin stopped to pick up Heinle's service revolver, then continued running through streets and alleys in downtown Missoula, pursued first by witnesses to the shooting and then by additional police and sheriff's officers. Martin entered a bakery through an unlocked back door and when officers followed him in, ran out through the front door. Martin was apprehended a short time later behind a piece of plywood in an alley.

¶ 14 The State of Montana (State) charged Martin with committing the offenses of forgery, attempted deliberate homicide, felony theft, escape, aggravated burglary, and assault. Due to the amount of local publicity in Missoula, trial was held in Butte, Montana. The jury heard testimony from numerous witnesses to the events at the bank, the shooting and the subsequent chase, including Heinle and the police officers and sheriff's deputies who responded to an "officer down" message after Heinle was shot. After a week-long trial, the jury found Martin guilty of all the charged offenses. The District Court sentenced him and entered judgment. Martin appeals.

DISCUSSION

¶ 15 1. Does sufficient evidence support the verdict convicting Martin of attempted deliberate homicide?

¶ 16 The District Court instructed the jury that, in order to convict Martin of attempted deliberate homicide, it must find he "purposely or knowingly attempted to cause the death of Robert Heinle, a human being, by performing an act which constituted a material step toward the commission of the offense of deliberate homicide." The jury also was instructed that "a person acts purposely. . . when it is his conscious object to cause that result" and that "[a] person acts knowingly. . . when he is aware that there exists a high probability that his conduct will cause a specific result." The jury convicted Martin of attempted deliberate homicide, and he contends the evidence was insufficient to prove he acted with the purpose of causing Heinle's death.

¶ 17 The existence of a mental state is normally inferred from conduct and surrounding circumstances. See § 45-2-103(3), MCA. There is no requirement in the definitions of the requisite mental states of "knowingly" or "purposely" that the criminal act be carefully thought out, planned well in advance, or wise. See § 45-2-101(34) and (64), MCA. We review the sufficiency of the evidence to support a jury verdict in a criminal trial to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7. If events are capable of different interpretations, the trier of fact determines which is most reasonable, since it is in the best position to observe the witnesses and determine their credibility. State v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24; State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94.

¶ 18 Martin points to witness testimony that, after he shot Heinle, the expression on Martin's face was one of surprise, shock, and panic. Another witness testified on cross-examination that, after the shooting, Martin appeared confused and looked as though he did not know what to do. Martin contends that, if he had intended to kill Heinle, he would not have looked surprised or confused when Heinle dropped to the ground. Martin also points to the videotaped statement he gave to police officers in which he explained he fired the gun because "I was just hopin' I could turn around and, and you know kinda scare him to where he'd just like back off and then I'd have, you know, a chance to get a bigger head start on him."

¶ 19 The evidence on which Martin relies, however, is only part of the evidence presented to the jury. In Martin's videotaped statement, he gave conflicting stories, at first saying that an acquaintance of his had shot Heinle. Witnesses to the events prior to the shooting testified that, during the foot chase, Martin appeared calm. According to one witness, Heinle was running hard but Martin was merely jogging or "moseying." Another witness testified he saw Martin turn and slow before he shot. The jury also heard testimony from an acquaintance of Martin's that Martin carried his pistol with him every day and had boasted he would shoot anyone who "got in [his] way," even a "cop." Moreover, it is undisputed that Martin shot at Heinle not once, but twice.

¶ 20 On this record, with the required deference for jury resolution of conflicts in the evidence and viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found the essential elements of attempted deliberate homicide beyond a reasonable doubt. We hold that sufficient evidence supports the verdict convicting Martin of attempted deliberate homicide.

¶ 21 2. Did the District Court err in refusing instructions on assault on a peace officer as a lesser included offense of attempted deliberate homicide?

¶ 22 The District Court refused Martin's offered instructions on assault on a peace officer as a lesser included offense of attempted deliberate homicide. Martin asserts error.

¶ 23 This Court reviews jury instructions to determine whether the instructions as a whole fully and fairly instruct the jury on the law applicable to the case. State v. Hall, 1999 MT 297, ¶ 39, 297 Mont. 111, ¶ 39, 991 P.2d 929, ¶ 39. In order for the district court to instruct the jury on a lesser included offense, the record must contain evidence from which the jury could rationally find the defendant guilty of the lesser offense and acquit of the greater, and the offense must actually constitute an included offense of the crime charged. State v. Beavers, 1999 MT 260, ¶ 23, 296 Mont. 340, ¶ 23, 987 P.2d 371, ¶ 23.

¶ 24 Relying on State v. Castle (1997), 285 Mont. 363, 948 P.2d 688, and § 46-1-202(8)(c), MCA, Martin contends assault on a peace officer is a lesser included offense of attempted deliberate homicide. Section 46-1-202(8)(c), MCA, defines an 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, property, or public interest or a lesser kind of culpability suffices to establish its commission."

¶ 25 In Castle, we held that, under the express terms of § 46-1-202(8)(c), MCA, assault is a lesser included offense of deliberate homicide. Castle, 285 Mont. at 368, 948 P.2d at 691. We reasoned that assault differs from deliberate homicide only in that a less serious injury is sufficient to establish its commission. Castle, 285 Mont. at 368, 948 P.2d at 691.

¶ 26 The offense of assault on a peace officer does not bear the same kind of relationship to the offense of attempted deliberate homicide. A person who purposely or knowingly causes bodily injury to a peace officer commits the offense of assault on a peace officer. Section 45-5-210(1)(a), MCA. A person who does any act toward purposely or knowingly causing the death of another human being commits the...

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