State v. Arrington
| Decision Date | 10 August 1993 |
| Docket Number | No. 92-463,92-463 |
| Citation | 858 P.2d 343,260 Mont. 1 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Owen W. ARRINGTON, Jr., Defendant and Appellant. |
| Court | Montana Supreme Court |
J. Robert Planalp, Landoe, Brown, Planalp & Braaksma, Larry Jent, Williams, Jent & Cockins, Bozeman, for defendant and appellant.
Joseph P. Mazurek, Atty. Gen., Cregg W. Coughlin, Asst. Atty. Gen., Helena, Mike Salvagni, Gallatin County Atty., Bozeman, for plaintiff and respondent.
This is an appeal from an Eighteenth Judicial District Court, Gallatin County, jury verdict in a negligent homicide action. We affirm.
We restate the issues on appeal:
I. Did the trial court err in denying the defendant's motion to dismiss?
II. Was there sufficient evidence to support the jury's verdict of guilty?
III. Did the trial court properly instruct the jury on the issues of causation and negligence?
IV. Should the testimony of the highway patrol officer have been excluded?
The defendant met a friend, Frank Ahrendes, at Frank's place of business on the afternoon of August 8, 1991. The men visited for a while and then proceeded to Little John's, a Bozeman tavern for a couple drinks. They stayed there for approximately one hour, each having two tall "mist" drinks. Then the defendant drove Frank home where the two visited briefly.
At about 6:30, the defendant arrived alone at Willie's Saloon, also in Bozeman. The bar owner served the defendant ice water and informed him that his wife had called. He called his wife from the bar owners's private office and when he had finished the call, asked for another ice water. The bar owner stated that the defendant stayed at the bar until about 9:00, playing keno and drinking two drinks. The defendant left the bar and proceeded to the interstate going east to his home outside of Livingston.
Carol Dearinger and her husband, Laurence Dearinger were on a motorcycle trip through Montana. They stopped in Bozeman at about 8:30 p.m. on the evening of August 8, 1991, to find a place to spend the night, but they could not find a vacancy. They drove through the city and eventually departed on the eastbound interstate. As they headed out of town, Mrs. Dearinger thought she might get cold so she asked her husband to pull over so she could retrieve her coat from the trailer the motorcycle was pulling.
She stated that her husband pulled over onto the shoulder of the road, as far as he could, without going into the ditch, and he got off the motorcycle. He proceeded to the trailer, and removed her jacket, returned to the left side of the motorcycle and handed her the jacket. He then turned and started back to the trailer. He had walked about 3 to 4 feet when Mrs. Dearinger heard "a loud crash and a swish, and the motorcycle was laying over on its side."
Mrs. Dearinger stated that she looked around, did not see anyone, so ran to the front of the motorcycle and saw her husband lying on the ground between the motorcycle and the fogline. She tried to flag down some passers by for assistance. Soon, people arrived and lent what assistance they could in terms of comforting Mrs. Dearinger and conducting first aid upon Mr. Dearinger.
Tim Del Camp, the first witness on the scene, stated that Mr. Dearinger's leg was almost completely severed and his chest was deformed and disfigured. He was able to get a rapid pulse when he first came to Mr. Dearinger's aid but later was unable to find a pulse. A woman who arrived later knew first aid and was able to get a pulse in his neck. The bystanders continued to render what aid they could until officials arrived.
Meanwhile, another woman who had arrived on the accident scene shortly after Del Camp, became ill upon seeing Mr. Dearinger and walked away from the accident scene. She saw a man standing away from the accident and asked him if he knew what happened. He stated, She described his clothes as a white shirt and blue pants. She said he smelled of alcoholic beverages and had glassy eyes. Shortly after she spoke with him, he walked away toward a vehicle parked eastbound of the accident.
The deputy coroner, the ambulance and the police arrived at the scene not long after bystanders had gathered. They surveyed the scene and examined the body. The deputy coroner and a deputy sheriff tried CPR for a short time but could not get any pressure back after putting breath into his body. A minute or two after starting CPR they covered the body, and the deputy coroner pronounced him dead.
Meanwhile, other police officers began questioning the bystanders to determine if there were any eyewitnesses to the accident and they determined there were none. They also started to investigate the scene and gather evidence. Officer Carol Schumacher, a highway patrol officer, made a number of measurements, took photographs and used her evidence later to determine how the accident occurred.
Officer Schumacher took a photograph of a 1989 white Toyota Camry which was parked eastbound not far from the scene of the accident with its headlights on and keys in the ignition, though the car was not running. The car was parked "on the very outside edge of the traffic lane." The car was damaged on the right front side and was blood splattered.
Police officers started to look for the owner of the white car, searching for anyone on foot near the area of the accident. The police determined that the vehicle was registered and owned by Owen Arrington, Jr. After checking the vehicle registration, police Officer Bill Dove called Mrs. Arrington, the defendant's wife, to report that their car had been involved in an accident. She reported that her husband was in possession of the vehicle at that time although their daughter usually drove the Camry.
Mrs. Arrington telephoned her father-in-law and related the information from the police officer. Owen Arrington, Sr., then traveled to a number of places trying to find the defendant. Finally, sometime after 6:00 a.m., Mr. and Mrs. Arrington, Sr., found him near the Frontage Road heading toward Bozeman in an area south of the interstate.
The defendant told his father he had been in an accident but he really did not know what had happened. Mr. Arrington, Sr. took his son to the police station where the defendant made a number of statements about the accident to Officer Dove, a City of Bozeman police officer.
The defendant was ultimately charged with negligent homicide and leaving the scene of an accident. At a jury trial in the Eighteenth Judicial District Court, Gallatin County, the defendant was found guilty. This appeal followed.
The standard of review for discretionary trial court rulings is whether there has been an abuse of discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-604.
The defendant argues that the State's affidavit for leave to file an information fails to establish probable cause and his motion to dismiss should have been properly granted. Further, he contends that extrajudicial statements he made cannot be used to support a finding of probable cause. The State asserts that the trial court could properly consider the defendant's statements but even without his statements, the affidavit was supported by sufficient evidence.
The defendant cites § 45-5-111, MCA, for the proposition that "the State must prove each element, including in this case, the identity of the perpetrator, by evidence independent of any extrajudicial statement by the defendant." Section 45-5-111, MCA, provides as follows:
In a homicide trial, before an extrajudicial confession may be admitted into evidence, the state must introduce independent evidence tending to establish the death and the fact that the death was caused by a criminal agency.
Although this Court agrees that the State must prove each element of the offense, § 45-5-111, MCA, pertains to a homicide trial, not pre-trial processes. "In construing a statute, it is our function as an appellate court to ascertain and declare what in terms or in substance is contained in a statute and not insert what has been omitted." State v. Crane (1989), 240 Mont. 235, 238, 784 P.2d 901, 903. The statute merely prohibits admission of a defendant's confession at trial prior to the introduction of certain specified independent evidence; it does not relate in any way to use of the defendant's statements in establishing probable cause for leave to file an information.
Moreover, Montana case law confirms that the defendant's statements may be used in an affidavit to support the filing of an information. In State v. Hallam (1978), 175 Mont. 492, 499, 575 P.2d 55, 60, this Court concluded that an admission by the defendant that he set the fire, along with evidence that the fire was intentionally set, "was clearly sufficient to establish probable cause" to authorize leave to file an information. In the present case, there is far more independent evidence to support any admissions made by the defendant, including evidence that the car the defendant, who had been drinking, was known to have been driving was found at the scene and was damaged. We conclude that the defendant's statements may be included as evidence to support probable cause for filing an information.
Section 46-11-201, MCA, governs the filing of an information and provides in pertinent part:
(1) The prosecutor may apply directly to the district court for permission to file an information against a named defendant ...
(2) An application must be by affidavit supported by evidence that the judge or chief justice may require. If it appears that there is...
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