State v. Dubois
| Decision Date | 25 April 2006 |
| Docket Number | No. 04-695.,04-695. |
| Citation | 2006 MT 89,134 P.3d 82 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Rodney DUBOIS, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jeffrey L. Olson, Attorney at Law, Great Falls, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Brant S. Light, County Attorney; Susan Weber and Mary Ann Ries, Deputy County Attorneys, Great Falls, Montana.
¶ 1 Rodney Dubois (Dubois) appeals from his conviction of Deliberate Homicide in the Eighth Judicial District Court, Cascade County. He contests the fairness of his trial on multiple grounds. We affirm.
¶ 2 We address the following issues on appeal:
¶ 3 1. Did the District Court err in its jury instruction no. 12 concerning the requisite mental state for deliberate homicide?
¶ 4 2. Did the District Court err in failing to give a specific instruction on proximate cause?
¶ 5 3. Was Dubois' counsel ineffective in not offering an instruction on proximate cause?
¶ 6 4. Did the District Court err in denying Dubois' motion for a mistrial because the prosecutor, in cross-examining a defense witness, described him as a gangster?
¶ 7 5. Did the District Court err in not granting Dubois a mistrial because, in closing argument, the prosecutor used the word "lie" in referring to a statement by Dubois?
¶ 8 The events leading to this appeal occurred on March 15, 2003. Dubois chose to testify at his trial. According to Dubois, he went to the home of Dion Guckeen (Guckeen) with his friend Herman Belgarde (Belgarde) to procure methamphetamine. While Belgarde was in another room, Guckeen told Dubois that he was a paranoid schizophrenic and could get away with killing Dubois. Dubois went into the other room and related these statements to Belgarde. Belgarde told Dubois not to worry and gave him a small baseball bat. When Dubois and Belgarde left the room, they found Guckeen holding a gun. Belgarde took the gun from Guckeen, removed all the bullets except one, and gave the gun back to Guckeen. Dubois left Guckeen's house and eventually got a ride back to his home from a local resident, to whom Dubois gave the bat.
¶ 9 Dubois said that Belgarde then called him, telling him to come back to Guckeen's house because methamphetamine was available there, and that he could safely return. Dubois said he tried to drive to Guckeen's house but got lost, and Belgarde sent friends to pick him up. Dubois took a large flashlight with him for defense. When Dubois arrived, there was no methamphetamine. Guckeen accused Dubois of sleeping with his girlfriend, which Dubois denied. Dubois then said that Guckeen pulled a gun from under a cushion he was sitting on. Dubois grabbed another baseball bat and left Guckeen's house with Belgarde, Linda Scott (Scott), and Misty Palmerton (Palmerton).
¶ 10 Dubois went on to say that, after dropping off Belgarde, he stayed with Scott and Palmerton, who promised they were going to go party. The three went back to Guckeens house, where Dubois felt a tense atmosphere. Guckeen kept looking at Dubois and then at the cushion where the gun had previously been. Guckeen then reached under that same cushion, and Dubois, thinking Guckeen was reaching for the gun he had seen earlier, hit him in the head with the baseball bat. Dubois did not think the first hit had done anything to Guckeen, so he hit Guckeen twice more in the head. Dubois thus claimed that he acted in self defense.
¶ 11 According to Dubois, another man in the room, Tony Sambenedetto (Sambenedetto), appeared to be reaching for another bat, and Dubois told him not to. Sambenedetto then left. Dubois did not admit hitting Sambenedetto with the bat.
¶ 12 Dubois said Scott told him to call 911, which required him to leave the house. Palmerton went with Dubois, who took the bat. When they returned to the house, Palmerton suggested that they all lie to the police and say that they found Guckeen already injured, and she said she would tell Scott what to tell the police. Dubois initially lied to the police about what happened, saying that he found the bat and held it in safekeeping for the authorities. After Dubois learned that Palmerton and Scott had told the police what actually happened, he explained why he hit Guckeen with the bat.
¶ 13 The State's witnesses contradicted many parts of Dubois' story. According to Scott, she had been at the house earlier in the day when Guckeen, Dubois, Belgarde, and Sambenedetto were all present, and they appeared to be just sitting around talking. When Scott returned later with Palmerton, she heard neither arguing nor an exchange of bad words.
¶ 14 Palmerton said she saw Dubois hit Guckeen in the head with the bat, and she yelled at Dubois as he walked away. Dubois then turned and headed back toward Guckeen. Palmerton jumped in front of Dubois, but he threw her into the wall and hit Guckeen in the head again. Palmerton then saw Dubois approach Sambenedetto, who put his arms up for protection. Dubois swung the bat at Sambenedetto's arms and told him to leave. According to Palmerton, Dubois told her to lie and say they found the baseball bat in the driveway. However, after the police put Palmerton and Scott in a car away from Dubois, Palmerton explained how Dubois had attacked Guckeen.
¶ 15 Sambenedetto testified that Dubois hit him with the bat.
¶ 16 According to Palmerton, Scott, and Sambenedetto, Guckeen did not have a gun on March 15, 2003, and none of them heard Guckeen threaten Dubois or argue with him. A friend of Guckeen's, Tiffany Cook, also said Guckeen did not have a gun that day, and she had never seen a gun at Guckeen's house. No gun was found in the house.
¶ 17 Dr. Glenn Winslow (Dr. Winslow), a trauma surgeon, and Dr. Karen Fagin (Dr. Fagin), a neurosurgeon, treated Guckeen at Benefis Hospital. Guckeen was comatose and completely unresponsive. His breathing was alternately rapid and slow, which implied damage to the brain stem as well as to the brain itself. Guckeen exhibited limited brainstem function. Guckeen's treatment included intubation in order to force rapid breathing in an attempt to ease the pressure inside his head, as well as morphine to both ease pressure and alleviate pain. The amount of morphine administered to Guckeen was increased slowly during his time at the hospital.
¶ 18 Guckeen's family did not want extraordinary measures taken to keep him alive after being told he would likely never be aware again. Eventually, his breathing tube was removed because he could breathe on his own. Guckeen died on March 17, 2003.
¶ 19 Dr. Fagin explained that she had never seen skull fractures as bad as those suffered by Guckeen. She described Guckeen's brain as pulped, and opined that the swelling was putting pressure on the brainstem. According to Dr. Fagin, barring a miracle, Guckeen would not have survived no matter what surgery was done.
¶ 20 Dr. Fagin's opinion was that Guckeen died of traumatic brain injury, and neither morphine nor extubation contributed to his death.
¶ 21 Dr. Winslow's opinion was that Guckeen died of a blunt trauma to the head resulting in a closed head injury, with no contribution from morphine or extubation.
¶ 22 Dr. Gary Dale, the State Medical Examiner, testified he could not give an opinion what caused Guckeen's death to a high degree of certainty. He did, however, state that it was his opinion that preexisting conditions did not contribute to Guckeen's death. His opinion was that, more likely than not, an increased dose of morphine caused Guckeens death. However, in his report he listed the cause of Guckeen's death as unknown.
¶ 23 Dr. Daniel Spitz (Dr. Spitz), a forensic pathologist, testified for the defense. After reviewing Guckeen's medical records, he gave the opinion that Guckeen died of respiratory failure caused by injuries to the brain and skull, morphine intoxication and extubation. In Dr. Spitz's opinion, Guckeen was never brain dead, and breathing on his own for over a day suggested his brain stem was relatively intact. Dr. Spitz stated he could not comment on whether Guckeen's treatment ended too early, as a proper brain-death protocol was not performed. He stated he was unable to determine what chance Guckeen had to survive his injuries. He did agree that the injuries were severe enough to possibly cause death regardless of treatment, and that the proximate cause of death was blunt head trauma, which initiated the sequence of events leading to Guckeen's death.
¶ 24 Dubois was charged by an amended information with Deliberate Homicide in violation of 45-5-102(1), MCA. He pled not guilty and trial by jury commenced on January 26, 2004.
¶ 25 Dubois objected to the District Court's instruction no. 12. This instruction provided that the element of purpose or knowledge necessary to convict Dubois of deliberate homicide could be established even if Dubois did not contemplate that his blows with the baseball bat would kill Guckeen, if the result involved the same kind of injury that was contemplated.
¶ 26 Dubois' trial counsel did not offer an instruction on whether his actions were the proximate cause of Guckeen's death. Appellate counsel claims this omission was both plain error and ineffective assistance of counsel.
¶ 27 One Vicki Algeo (Algeo) testified for the defense at trial. The prosecutor, by use of a leading question on re-cross examination, elicited from this witness that she felt Dubois was a gangster. Dubois moved for a mistrial on this ground, which motion was denied.
¶ 28 During closing argument, Deputy County Attorney Mary Ann Ries (Ries) characterized one of Dubois' statements as a lie. Dubois also moved for a mistrial on this ground, which motion was denied.
¶ 29 The jury found Dubois guilty of deliberate homicide. The District...
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