State v. Dunfee, 04-355.

• Decision Date: 08 June 2005
• Docket Number: No. 04-355.,04-355.
• Parties: STATE of Montana, Plaintiff and Respondent, v. John Vincent DUNFEE, Defendant and Appellant.
• Court: Montana Supreme Court

114 P.3d 217

2005 MT 147

327 Mont. 335

STATE of Montana, Plaintiff and Respondent, v. John Vincent DUNFEE, Defendant and Appellant.

No. 04-355.

Supreme Court of Montana.

Submitted on Briefs November 4, 2004.

Decided June 8, 2005.

For Appellant: Wade J. DaHood and Michelle Sievers, Knight, DaHood, Everett & Sievers, Anaconda, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Kathy Seeley and John P. Connor, Jr., Assistant Attorneys General, Helena, Montana Robert M. McCarthy, Silver Bow County Attorney, Butte, Montana.

Justice JOHN WARNER delivered the Opinion of the Court.

¶ 1 John Vincent Dunfee (Dunfee) appeals from a judgment in the Second Judicial District Court, Silver Bow County, convicting him of aggravated assault and committing him to the Montana Department of Corrections (DOC). We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err when it denied Dunfee's motion for a new trial based upon a juror's failure to disclose during voir dire that he had previously been assaulted by Dunfee's brother?

¶ 4 2. Did the District Court err when, in response to a written question from the jury, it referred the jury to the instructions already given?

¶ 5 3. Did the District Court err when it admitted four color photographs of the victim into evidence?

¶ 6 4. Did the District Court err when it denied Dunfee's motion to dismiss the Information for lack of probable cause?

¶ 7 5. Was there sufficient evidence to support the conviction for aggravated assault, specifically to support a finding that Dunfee acted purposely or knowingly?

¶ 8 6. Did the District Court err in denying Dunfee's motion for a new trial on the basis of improper comments made by the prosecutor during his rebuttal closing argument?

¶ 9 7. Did the District Court err when it considered, at sentencing, other acts of Dunfee included in the pre-sentence investigation report?

¶ 10 8. Did the District Court err when it issued an order requiring any correctional placement of Dunfee be made outside the Butte-Silver Bow County area?

BACKGROUND

¶ 11 On August 26, 2003, William Pesanti (Pesanti) was cleaning the outer doors at Butte Central Catholic High School in Butte. Pesanti noticed Dunfee, whom he knew to be a former professional boxer, parking his truck near the Knights of Columbus gym. Pesanti, wishing to discuss an issue involving his daughter, approached Dunfee and the two men began arguing. There is conflicting testimony as to who threw the first punch, but witnesses testified they observed Dunfee hitting Pesanti numerous times. Dunfee admitted punching Pesanti. Pesanti lost two teeth and suffered broken bones in his face. He underwent surgery for these injuries, which included the permanent placement of four titanium plates in his face.

¶ 12 On September 17, 2003, an Information was filed in the District Court charging Dunfee with the offense of aggravated assault, a felony. Prior to trial, Dunfee moved for dismissal of the charge against him, claiming that the Information and affidavit in support did not state probable cause. The District Court denied the motion. A jury trial was conducted February 17 through February 19, 2004, and Dunfee was found guilty. Dunfee filed a motion for a new trial on March 22, 2004. A hearing on this motion was held on April 7, 2004, and the motion was denied. A sentencing hearing was held on May 12, 2004. The District Court committed Dunfee to DOC for placement in an appropriate facility or program for a term of ten years, with seven years suspended, subject to numerous conditions. The Defendant now appeals.

DISCUSSION

ISSUE ONE

¶ 13 Did the District Court err when it denied Dunfee's motion for a new trial based upon a juror's failure to disclose during voir dire that he had previously been assaulted by Dunfee's brother?

¶ 14 A district court's ruling on a motion for a new trial and its decision as to the impartiality of a jury should not be set aside unless there is an abuse of discretion. State v. Azure, 2002 MT 22, ¶ 30, 308 Mont. 201, ¶ 30, 41 P.3d 899, ¶ 30; State v. McMahon (1995), 271 Mont. 75, 78, 894 P.2d 313, 315.

¶ 15 Dunfee argues that because a member of the jury was previously assaulted by Dunfee's brother and did not reveal this information during voir dire, he was denied a fair trial. The State argues the juror responded truthfully to all questions asked of him during voir dire and did not conceal any information.

¶ 16 This Court has consistently held that where juror non-disclosure does not amount to intentional concealment and no further evidence of bias is proven, there are no grounds for reversal. State v. Bauer (1984), 210 Mont. 298, 310-11, 683 P.2d 946, 953; State v. Woods (1986), 221 Mont. 17, 21, 716 P.2d 624, 627; State v. Hatten, 1999 MT 298, ¶¶ 28-29, 297 Mont. 127, ¶¶ 28-29, 991 P.2d 939, ¶¶ 28-29.

¶ 17 After a review of the record, we cannot find any instance where the juror in question deliberately concealed any information. He answered every question that was asked of him truthfully. No questions were asked which required him to disclose his knowledge of Dunfee's brother. Additionally, during the hearing on the motion for a new trial, the juror testified under oath that he had no ill feelings towards either Dunfee or his brother and that he was a fair and impartial juror. Other than his speculation, Dunfee has presented no evidence that the juror held any ill will toward him.

¶ 18 Under these circumstances, the District Court did not abuse its discretion when it denied Dunfee's motion for a new trial on the ground of juror misconduct.

ISSUE TWO

¶ 19 Did the District Court err when, in response to a written question from the jury, it referred the jury to the instructions already given?

¶ 20 The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Courville, 2002 MT 330, ¶ 15, 313 Mont. 218, ¶ 15, 61 P.3d 749, ¶ 15 (citation omitted).

¶ 21 Dunfee faults the District Court for answering a question from the jury whether the terms purposely and knowingly applied to the seriousness of the injuries or just to the actions of the defendant, with a reference to review Jury Instructions No. 11 and No. 12. Dunfee asserts that the jury should have been instructed that the mental state applied to the conduct as well as the result of that conduct. The State counters that Jury Instructions No. 11 and No. 12 provided exactly the answer Dunfee claims should have been given to the jury.

¶ 22 Jury Instruction No. 11 provided that "[a] person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another." Instruction No. 12 provided:

To convict the Defendant of Aggravated Assault, the State must prove the following elements: 1) that the Defendant caused serious bodily injury to William Pesanti; and 2) that the Defendant acted purposely or knowingly.

If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the Defendant guilty. If, on the other hand, you find from your consideration of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.

¶ 23 In State v. Hawkins (1974), 165 Mont. 456, 529 P.2d 1377, the jury submitted four questions during the course of its deliberation to the district court. After conferring with counsel, the court directed the jury that the answers to their questions were contained in the jury instructions already given to them. On appeal, we stated that: "[i]f the judge is of the opinion the instructions already given are adequate, correctly state the law, and fully advise the jury on the procedures it is to follow in its deliberation, his refusal to answer a question already answered in the instruction is not error." Hawkins, 165 Mont. at 460, 529 P.2d at 1379 (citations omitted).

¶ 24 Here, Instructions No. 11 and No. 12 adequately answered the jury's question, correctly stated the law, and fully advised the jury on the procedures to follow in its deliberation. Thus, the District Court did not err when, in response to the jury's question, it referred to the existing jury instructions.

ISSUE THREE

¶ 25 Did the District Court err when it admitted four color photographs of the victim into evidence?

¶ 26 A district court's decision regarding the admissibility of evidence should not be set aside unless there is an abuse of discretion. State v. DuBray, 2003 MT 255, ¶ 67, 317 Mont. 377, ¶ 67, 77 P.3d 247, ¶ 67. In considering whether photographs should be admitted, a district court must determine whether the probative value of the photos outweighs any prejudicial effect. Rule 403, M.R.Evid; State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 316, 320. This Court has consistently held that photographs possessing instructive value are relevant and admissible provided their probative value is not substantially outweighed by the danger of unfair prejudice. State v. Close (1994), 267 Mont. 44, 48, 881 P.2d 1312, 1314.

¶ 27 Dunfee argues the introduction of four enlarged colored photographs, depicting various stages of bruising of Pesanti's face, were prejudicial and improperly admitted into evidence. Dunfee claims the photographs were unnecessary because testimonial evidence regarding the nature and extent of Pesanti's injuries was heard by the jury. ¶ 28 The State argues the photos were relevant in that they aided the jury in understanding the nature and extent of Pesanti's injuries. The State further argues that the offense of aggravated assault requires that the jury be informed on the extent of Pesanti's injuries, noting it had to prove Pesanti's injuries qualified as "serious bodily injury."

¶ 29 In this case, the nature and extent of Pesanti's injuries...