State v. English, 04-410.

Citation2006 MT 177,140 P.3d 454
Decision Date01 August 2006
Docket NumberNo. 04-410.,04-410.
PartiesSTATE of Montana, Plaintiff and Respondent, v. James ENGLISH, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Nancy G. Schwartz, LaRance, Syth & Schwartz, Billings, For Appellant.

Honorable Mike McGrath, Attorney General; Mark Mattioli, Assistant Attorney General, Helena, Dennis Paxinos, County Attorney; David Carter, Deputy County Attorney, Billings, For Respondent.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 James English (English) appeals from the judgment and sentence entered by the Thirteenth Judicial District Court, Yellowstone County, upon a jury verdict finding him guilty of negligent homicide. We affirm.

¶ 2 We consider the following issues on appeal:

¶ 3 Did the District Court abuse its discretion by denying the Defendant's motion for a directed verdict?

¶ 4 Did the District Court abuse its discretion by admitting the results of the Defendant's blood alcohol test?

¶ 5 Was the intoxication instruction given to the jury an incorrect statement of the law and reversible error?

¶ 6 Did the District Court abuse its discretion by admitting statements made by the victim?

¶ 7 Did the District Court abuse its discretion by admitting photographs of the victim?

¶ 8 Did the District Court penalize the Defendant for taking his case to trial, thereby violating his due process rights?

¶ 9 Did the District Court err in ruling that the homicide was a crime of violence and by failing to consider sentencing alternatives to prison?

¶ 10 Should this Court exercise plain error review to examine whether comments made at trial regarding the Defendant's silence violated his Fifth Amendment and state constitutional rights?

BACKGROUND

¶ 11 Strange things happen. The following events took place on the evening of May 2, 2002, and the early morning of May 3, 2002.

¶ 12 Between 4:00 p.m. and 5:00 p.m., Benjamin Nielsen (Ben) dropped off his wife, Wilma Nielsen (Wilma), in downtown Billings so that she could go see some friends. Around 7:00 p.m. or 7:15 p.m., Ben received a call from someone named Karen at the Empire Lounge telling him that he needed to pick up Wilma because she was intoxicated. Ben waited about twenty minutes, and then drove his van downtown to find Wilma.

¶ 13 At the Empire Lounge, Ben collected a bag of clothing Wilma had left for him, but he did not see her there. After twenty to thirty minutes of looking for her at several other bars, Ben returned at a little after 8:00 p.m. to the Empire Lounge and found Wilma standing outside with a man. They were drinking whiskey straight from the bottle. Ben, Wilma, and the other man went to the Rainbow Club, about a five minute walk from the Empire Lounge, and ordered more drinks.

¶ 14 After they finished their drinks, Ben was going to order another round when Wilma seemed to become upset about something and went to the bathroom. She stayed in the bathroom weeping for about ten minutes, after which the three companions left the bar and started walking back toward the Empire Lounge. They only went about thirty to forty feet before Wilma angrily told the other man to get away from her. Ben and Wilma argued about taking her home, but she said she was going to go partying. She stepped to the curb and stuck out her thumb. A van pulled up.

¶ 15 Wilma opened the side door of the van and got in, telling the driver that she wanted to go to the airport or bus station. Ben got in the front passenger seat, and they all introduced themselves. Ben told the driver, who was the Defendant, James English, that he needed to get Wilma home. English and Ben got out of the van, briefly went into the Rainbow Club, then came out again and got back into the van. Ben and Wilma argued about whether she should go home, and English said, "I ain't got time for this ...." English asked Ben to step out of the van, saying "Go down and get your van and I'll help you get your wife home." Ben got out, leaving Wilma lying on a mattress in the back of the van. That was at about 8:45 p.m. The next time Ben would see his wife would be the following morning in the intensive care unit of the hospital.

¶ 16 After exiting English's vehicle, Ben ran to get into his van to follow English and Wilma because he suspected that they might be going off to have sex. He drove for about two hours, went home for about forty-five minutes, and then searched for another two hours, but he did not find them.

¶ 17 About an hour after Ben parted company with Wilma and English, Toby and Brenda Kline were driving by their business located near the Reporter Office Products parking lot in an industrial area of Billings. They noticed a van parked in the lot at a strange angle with its wheels turned sharply to the left. A man, later identified as English, was standing outside the van looking down at someone, later identified as Wilma, lying on the ground. The Klines drove around the block once or twice to get a look at the scene, then parked about 125-135 yards away and watched the two strangers with binoculars. Wilma was lying on her back about ten to fourteen feet from the open side door of the van, not moving at all. Though English is a large man, he struggled to pull Wilma — who was quite large as well — toward the van, dragging her head on the ground and dropping her in the process. English ultimately succeeded in getting her to within two or three feet of the van.

¶ 18 As they observed this odd behavior, the Klines called 911; records indicate the time was 9:59 p.m. During and after the call to the police, the Klines saw English walk around and step over Wilma several times. He appeared to be talking to her. At one point, English walked to the driver side and got in the van, sat there for roughly twenty seconds, got back out, and resumed stepping over and walking around Wilma. Between four and six minutes after the Klines called 911, a police patrol car arrived at the scene, followed by other patrol cars and an ambulance.

¶ 19 Officers Steve Swanson and David Dierenfield were the first officers on the scene. After evaluating the situation, they directed English to sit on a parking block a short distance away from Wilma and the van. The officers repeatedly asked English what had happened to Wilma, but he refused to answer, saying that he knew what happened but was not involved. Officer Dierenfield then arrested English and put him in one of the patrol cars. When the police commander, Sergeant Thomas Vladic, arrived five to ten minutes later, he asked English what had happened to Wilma, but he said he would only talk if Sergeant Vladic would give him a cigarette, which the officer declined to do. At 3:52 a.m., almost six hours after English's arrest, the police conducted a blood alcohol test on him pursuant to a search warrant. His blood alcohol content at that time was .06.

¶ 20 Paramedic Eric Fisher performed the initial assessment of Wilma in the parking lot, noting that she had abrasions all over her body, had several broken ribs, and had a broken bone in her leg that was protruding through her skin. Wilma was taken to Deaconess Hospital, treated by a trauma team, and subsequently placed in the intensive care unit. She died nineteen days later of complications resulting from being run over by a motor vehicle. The autopsy revealed that Wilma had roughly twenty broken ribs, a fractured pelvis, and severe sepsis.

¶ 21 English was charged with negligent homicide, a felony. A jury convicted English of the charge, and he was sentenced to twenty years imprisonment with ten years suspended. English appeals.

DISCUSSION

¶ 22 Did the District Court abuse its discretion by denying the Defendant's motion for a directed verdict?

¶ 23 In State v. DeWitt, 2004 MT 317, ¶ 34, 324 Mont. 39, ¶ 34, 101 P.3d 277, ¶ 34 (citation omitted), we recited the standard of review for a denial of a motion for directed verdict:

We review a district court's denial of a motion for a directed verdict to determine whether the court abused its discretion. In doing so, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Abuse of discretion occurs only when the district court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.

¶ 24 Section 45-5-104(1), MCA, defines negligent homicide: "A person commits the offense of negligent homicide if the person negligently causes the death of another human being."

¶ 25 Section 45-2-101(42), MCA (2001), defines the mental state "negligently" as follows:

"Negligently" — a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. "Gross deviation" means a deviation that is considerably greater than lack of ordinary care.

¶ 26 English argues that the State failed to produce sufficient evidence to permit a jury to convict him. He focuses on the fact that the amended information charged him with negligently causing Wilma's death by driving and contends that the State inappropriately expanded its theory at trial to allege he was negligent "`before, during and after' the incident where Wilma was struck by the van." According to English, the only possibly relevant negligence was in the actual driving of the van, so he directs our attention to the State's own accident reconstruction expert, Dr....

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