State v. Smith

• Citation: 43 St.Rep. 449,220 Mont. 364,715 P.2d 1301
• Decision Date: 17 April 1986
• Docket Number: No. 84-462,84-462
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Craig Steven SMITH, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1301

715 P.2d 1301

220 Mont. 364

The STATE of Montana, Plaintiff and Respondent, v. Craig Steven SMITH, Defendant and Appellant.

No. 84-462.

Supreme Court of Montana.

Submitted Oct. 22, 1985.

Decided March 14, 1986.

Rehearing Denied April 17, 1986.

Moses Law Firm, Charles F. Moses and Jay F. Lansing argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., John Paulson argued, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, for plaintiff and respondent.

TURNAGE, Chief Justice.

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 reread 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 three 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 sheriff's request, Sand and Smith went with the sheriff 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 a 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 April 25, 1984, or very soon thereafter, or grant appropriate relief. On April 23, 1984, the State moved to add Professor John Wehrenberg, soil geologist, to the list of witnesses.

This Court on April 20, 1984, ordered the defendant to respond in writing by noon April 24, 1984, and heard oral argument that afternoon. In its order of April 24, 1984, this Court accepted jurisdiction. To expedite the matter upon good cause shown, this Court suspended the rules and immediately reviewed the court order on its merits. This Court affirmed the order denying dismissal of appeal on double jeopardy grounds. Defense motion for a continuance was denied without prejudice and jurisdiction was immediately remanded.

Trial began April 25, 1984, with jury selection. The State presented over forty witnesses. At the conclusion of the State's case, the defense moved for a mistrial on the grounds that witness Wehrenberg should not have been allowed to testify without the defense's opportunity to get its own expert. With the motion denied, the defense put on its case.

On the last day of trial, defendant took the stand and testified as to the inconsistencies of his story eighteen months earlier. He claimed he was actually acting at the request of an OSI agent, a gray haired man in a blue suit, to help in a drug bust as a package courier. He testified that he had started this work in July 1982. As a security policeman, he testified he found it logical that he would be approached for such an assignment. He also testified that when he returned to his apartment, two men told him they were the people he had been delivering packages for and to come with them bringing a change of clothes and he cut his hand climbing a fence after they threw him in a ditch.

In rebuttal, the State called two OSI personnel, one a lieutenant colonel in charge of regional operations and another OSI agent in Great Falls. They testified that Smith was never a source of information and that he had no dealings in local OSI drug surveillance.

At the settlement of jury instructions, defense counsel had no objection to State's numbered 3, 6, 11, 12 and 21. Defense did object to State's number 13 as a peremptory Sandstrom...