State v. Dahms

• Decision Date: 30 January 1992
• Docket Number: No. 90-506,90-506
• Parties: STATE of Montana, Plaintiff and Respondent, v. Michael Lee DAHMS Defendant and Appellant.
• Court: Montana Supreme Court

Page 1214

825 P.2d 1214

252 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Michael Lee DAHMS Defendant and Appellant.

No. 90-506.

Supreme Court of Montana.

Submitted on Briefs July 16, 1991.

Decided Jan. 30, 1992.

Joseph R. Massman, Massman Law Firm, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., Helena, John Paulson, Asst. Atty. Gen., Richard J. Llewellyn, Jefferson County Atty., Boulder, for plaintiff and respondent.

HUNT, Justice.

Defendant Michael Lee Dahms was found guilty of felony assault in violation of Sec. 45-5-202(2), MCA, after a jury trial in the District Court for the Fifth Judicial District, Jefferson County. The District Court sentenced the defendant to a term of ten years at the Montana State Prison for felony assault and a consecutive term of ten years with five years suspended for the knowing use of a firearm during the commission of the offense pursuant to the weapon enhancement statute Sec. 46-18-221, MCA. Defendant was designated a dangerous offender for purposes of parole eligibility and was fined the sum of $50,000. Defendant appeals. We affirm.

Defendant raises the following issues on appeal:

1. Did the District Court improperly limit defendant's cross-examination of State's witness Tom Jacobs?

2. Did the District Court err in denying defendant's motion in which defendant requested that the District Court provide for travel expenses for several potential defense witnesses from California?

3. Did the District Court properly deny defendant's motion to disqualify the County Attorney from prosecuting the case based on a conflict of interest?

4. Did defendant's conviction in State court violate Montana's double jeopardy statutes?

5. Was defendant denied his right to a speedy trial?

6. Was it error for the District Court to allow certain testimony by the State's expert witness, Connie Anders?

7. Was the sentence imposed on the defendant by the District Court excessive?

8. Did the District Court err in refusing to give defendant's proposed jury instruction D-1, and in giving the State's proposed instruction S-7?

In June 1988, Harriet Kay Plaunt and defendant met and began living together in Lyons, Michigan. In March 1989, Harriet and defendant were married while the defendant was serving time in the Ionia County Jail in Lyons. Living with Harriet at the time of this marriage were her two daughters from a previous marriage, ages 12 and 11. Upon his release from jail in May 1989, defendant decided to take Harriet and her daughters to Montana where they could find a home in the mountains and live close to nature. Accompanying the group west was Tom Jacobs, a mutual friend of both Harriet and the defendant. Harriet knew Tom from an adult education class and defendant had become acquainted with Tom while they were serving time together in a county jail in Michigan.

The Dahms party pooled their money and purchased a 1970 Buick. They loaded the car with their personal belongings, camping gear, bows and arrows, and two shotguns with ammunition, and left for Montana the first week of June 1989. The trip west was made difficult by car trouble along the way. Eventually the car broke down at the top of Homestake Pass near Butte. The group abandoned the vehicle at that point and continued on to Helena when a passerby in a pickup stopped and gave the group a ride. Upon arriving in Helena, the group went to a local shelter for homeless persons. At the shelter, they received assistance and were directed to a Helena hotel at which they could stay for several days.

At the hotel, the members of the Dahms party met another couple from Michigan who told them about the Nellie Grant Mine, an old abandoned gold mine located about ten miles south of Helena near Park Lake in Jefferson County. On June 14, 1989, with the help of a friend with a pickup truck, the group travelled up into the mountains to set up camp at the Nellie Grant Mine. The group found one of the old mine buildings and rigged up some bunking spaces.

Life at the mine was not exactly what the group had expected. As the group gathered around the campfire at night, there was speculation that a wild lynx or other predatory animal was in the area of the encampment, and so shots would periodically be fired into the darkness to scare away any unwanted intruders. By day the situation was no better. Harriet, in particular, grew weary of the conditions and the whole outdoor experience. Tempers flared and arguments ensued at different times. About four days after arriving at the mine, Harriet decided to take her daughters and hike back to Helena.

At this point, there was conflicting testimony offered at trial as to what transpired next. Harriet testified that as she and her 11-year-old daughter were preparing to leave defendant began firing shots from one of the shotguns into the ground at their feet. Defendant then struck the daughter, knocking her to the ground. Harriet then began striking defendant. She alleges defendant then pointed the shotgun directly at her face and said that if she moved, she was dead. Defendant pulled back the hammer, put his finger on the trigger, and told her to go ahead and say something so that he could kill her. Harriet's daughters and Tom Jacobs were finally able to talk the defendant into putting down the shotgun. Harriet's version of events is supported by the testimony of both her 12-year-old daughter and Tom Jacobs. Defendant admits that an argument took place and that heated words were exchanged while he was holding the shotgun. However, defendant contends he did not threaten to kill Harriet or anyone else with the shotgun.

The following morning the group was able to catch a ride back into Helena. That night they stayed at the Lewis and Clark County Fairgrounds and the following morning defendant and Tom Jacobs hopped a freight train to California. Harriet then reported the assault to the police. A felony complaint was filed in Jefferson County and an arrest warrant was issued for defendant.

Shortly after arriving in California, Tom Jacobs telephoned his parents in Michigan and they wired him an airline ticket home. In October 1989, defendant telephoned Harriet in Helena. Harriet informed the police of the call. She then had subsequent telephone calls from the defendant during which she encouraged him to return to Montana, ostensibly for a reconciliation. Harriet testified that she in fact had no intention of reconciling with the defendant but was merely attempting to lure defendant to Montana so that he could be arrested. Defendant returned to Montana and was arrested on October 31, 1989, the day he arrived in Helena.

On April 13, 1990, the defendant was found guilty after a jury trial of the offense of felony assault. On June 8, 1990, defendant was sentenced to ten years in prison for felony assault with an additional ten year sentence for the use of a weapon during the commission of the offense. The second sentence was to run consecutively with five years suspended. Defendant was designated a dangerous offender for purposes of parole eligibility and was fined the sum of $50,000, to be paid from any proceeds recovered by the defendant in a pending lawsuit. Defendant appeals.

I

Did the District Court improperly limit defendant's cross-examination of State's witness Tom Jacobs?

On appeal, defendant alleges that the District Court erred in not allowing greater latitude on cross-examination to impeach the credibility of the witness Jacobs. Specifically, the defendant contends the jury was not allowed to hear the subjective reason or ulterior motive Jacobs may have had for testifying.

At the time the assault occurred in Montana, Jacobs was on formal probation in Michigan for a felony offense. Owning and using a firearm and traveling to Montana without first obtaining the proper permission were violations of his probation, which subjected him to possible revocation of his probation. Defendant argued that Jacobs was testifying in order to avoid revocation of his probation. The State denied that Jacobs was to receive any favorable treatment in Michigan as a result of his testimony against the defendant.

Prior to trial, the State made a motion in limine requesting that the District Court restrict the defendant from inquiring into the criminal record of any of the State's witnesses for purposes of impeachment. The defendant objected to the motion in regard to the State's witness Jacobs. The District Court took the matter under advisement. Despite the fact that the State's motion in limine was still pending, counsel for the defense told the jury during opening argument that Jacobs was a convicted felon. The State objected and the court warned counsel not to mention the matter again until the court issued a ruling.

Shortly before Jacobs was to testify, the District Court ruled that the defendant would be allowed to ask two questions concerning the witness's probationary status and motive for testifying. On cross-examination, the defense could ask Jacobs if he was in fact on probation. If he answered in the affirmative, the defense could then ask if he had been granted or expected to receive any kind of immunity or favorable treatment in exchange for his testimony. In response to these questions, the witness admitted to being on probation, but denied he was to receive any immunity or favorable treatment for his testimony. Finally, in his closing argument, counsel for the defense argued to the jury that Jacobs' motive for testifying was his fear that if he did not testify law enforcement would somehow retaliate against him.

Defendant is correct in his assertion that a cross-examiner should be given latitude in order to attempt to impeach the credibility of a witness. Rule 607, M.R.Evid., provides that, "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Defendant wanted to attack the witness's motive for testifying. This...