State v. Castle

• Decision Date: 17 June 1997
• Docket Number: No. 96-172,96-172
• Citation: 948 P.2d 688,285 Mont. 363,54 St.Rep. 1194
• Parties: STATE of Montana, Plaintiff and Appellee, v. Douglas CASTLE, Defendant and Appellant. . Heard
• Court: Montana Supreme Court

Page 688

948 P.2d 688

285 Mont. 363

STATE of Montana, Plaintiff and Appellee, v. Douglas CASTLE, Defendant and Appellant.

No. 96-172.

Supreme Court of Montana.

Heard June 17, 1997.

Submitted June 19, 1997.

Decided Nov. 12, 1997.

Vernon E. Woodward, Hendrickson, Everson, Noenning & Woodward, Billings, for Defendant and Appellant.

Dennis Paxinos, Yellowstone County Attorney, Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, for Respondent.

HUNT, Justice.

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 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.

alive, and that appellant was going to cut Formo's throat.

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 (1985), 143 Mich.App. 574, 374 N.W.2d 158; and People v. Geiger (1984), 35 Cal.3d 510, 199 Cal.Rptr. 45, 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. 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 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 Blockburger 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.

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).

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...