State v. Fadness

• Decision Date: 17 January 2012
• Docket Number: No. DA 11–0097.,DA 11–0097.
• Citation: 2012 MT 12,363 Mont. 322,268 P.3d 17
• Parties: STATE of Montana, Plaintiff and Appellee, v. Blaine Christopher FADNESS, Defendant and Appellant.
• Court: Montana Supreme Court

2012 MT 12

268 P.3d 17

363 Mont. 322

STATE of Montana, Plaintiff and Appellee,

v.Blaine Christopher FADNESS, Defendant and Appellant.

No. DA 11–0097.

Supreme Court of Montana.

Submitted on Briefs Nov. 9, 2011.Decided Jan. 17, 2012.

For Appellant: Joslyn Hunt, Chief Appellate Defender, Jennifer A. Hurley, Assistant Appellate Defender, Helena, Montana.

For Appellee: Steve Bullock, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, William E. Fulbright, Ravalli County Attorney, Hamilton, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

[363 Mont. 323] ¶ 1 Blaine Christopher Fadness appeals from the Opinion & Order of the Twenty–First Judicial District Court, Ravalli County, disposing of certain items held as evidence by the Ravalli County Sheriff's Office. We affirm in part, reverse in part, and remand for further proceedings as detailed below.

BACKGROUND

¶ 2 On the evening of September 11, 2006, Fadness shot at three different moving vehicles while traveling on U.S. Highway 93 south of Darby, Montana. In each case, Fadness was driving south and the victim was driving north when Fadness fired the shot. The shootings occurred after dark over a period of about 22 minutes. One of the victims was hit in the knee and had to undergo surgery to have the bullet removed from her body. In the other two cases, the victims did not suffer physical injuries because the bullets did not pierce the inner walls of their vehicle doors.

¶ 3 The first victim notified local law enforcement immediately upon realizing that his vehicle had been struck by a bullet. In reviewing video footage from a traffic camera on Main Street in Darby, he was able to identify a suspect vehicle. Using this information, law enforcement officials located and arrested Fadness, who was still driving south on Highway 93. When Fadness was arrested, deputies observed a Walther .22–caliber pistol with a laser sight and a silencer lying on the front seat of his vehicle, within arm's reach of the driver. They also discovered a Beretta .22–caliber pistol on the front seat within Fadness's reach. Subsequent testing indicated that the Walther .22, with the laser sight and silencer, was the gun Fadness had used in the shootings.

¶ 4 Deputies obtained a search warrant for Fadness's vehicle. In that search, they found additional firearms, specialized accessories for the firearms (e.g., a range finder, tactical holsters, and speed loaders), a considerable amount of ammunition, twelve spent .22 cartridges, and some specialized outdoor equipment (e.g., a night-vision device and tactical flashlights designed not to disclose the user's location). All of these items were admitted into evidence at Fadness's trial.

¶ 5 The State charged Fadness with three counts of attempted deliberate homicide. At trial, Fadness admitted the shootings but claimed he never thought that he would actually hit anyone or anything. When asked why he had shot at the victims, Fadness replied: “Just stupid, angry, just nothing more than just frustration at high beam. Try to clip them thinking they're going to dim them down. No reason, no good common sense, anything. Just throwing a water balloon out the window would have been about the same stupidity, but different results.” Fadness said it was “an incredibly stupid act of road rage.”

¶ 6 The jury convicted Fadness on all three counts, and the District Court sentenced him to the Montana State Prison for three concurrent terms of 40 years with 20 years suspended.¹ The court listed numerous conditions on the suspended portion of Fadness's sentence, including that he “not own, possess, or be in control of any firearms or deadly weapons” and that he “comply with all city, county, state, and federal laws.” Fadness appealed, and this Court affirmed his conviction in State v. Fadness, 2008 MT 441N, 2008 WL 5393785. The Sentence Review Division heard Fadness's application for review of his sentence on November 12, 2009, and thereafter unanimously affirmed the sentence.

¶ 7 The instant appeal arises out of a Petition for Order for Disposing of Evidence, which the Ravalli County Attorney filed in the District Court on July 30, 2010. Sections 46–5–306 through –309, MCA, “provide a procedure by which physical evidence in criminal cases may be destroyed or appropriated for law enforcement use when prosecutions have been completed and no further legal proceeding is contemplated or when it does not appear that criminal charges will be initiated.” Section 46–5–306, MCA. The prosecutor commences the procedure by filing a petition for the destruction, disposal, or use of the evidence. Section 46–5–307, MCA. The petition must include or describe the information specified in subsections (1) and (2) of § 46–5–307, MCA. Among other things, the prosecutor must state “whether, in those instances in which the items are not contraband, an effort has been made to return the items to the apparent owner and the results of the effort.” Section 46–5–307(1)(f), MCA. The prosecutor is also required to present to the court a proposed order. Section 46–5–308(1), MCA. The proposed order may include: authorization to destroy all contraband listed in the petition; authorization to use contraband or noncontraband items for training or law enforcement purposes; if the evidence is money and the owner cannot be ascertained and no civil forfeiture action is pending, authorization to deposit the money to the appropriate city, county, or state drug forfeiture fund; authorization to sell noncontraband property at public sale or auction; or authorization to destroy all items not otherwise provided for. Section 46–5–308(1)(a)–(f), MCA. The court, in turn, “may enter an order providing for the destruction or disposition of the evidence.” Section 46–5–308(1), MCA.

¶ 8 Prior to filing the petition in the instant case, the Ravalli County Attorney helped facilitate the release, to Fadness's parents, of all items of Fadness's personal property which were not contraband and which had not been admitted at trial. The prosecutor's petition, therefore, concerned only items which had been used as exhibits at trial or which were contraband. All of these items were listed in Paragraphs 7a through 7e of the petition. Paragraph 7a contained noncontraband “exhibit items.” The parties agreed that these items would be released to Fadness's parents. Paragraph 7b listed several “exhibit items to be retained and used,” such as maps, photographs, a 911 tape, a medical report, and a crime scene analysis. Fadness did not object to this disposition. Paragraph 7c, which is labeled “exhibit items to be destroyed,” contained no items. Paragraph 7e listed “contraband items to be disposed of by court order.” Fadness agreed that these items should not be returned to him or to his parents.

¶ 9 The dispute in this case concerns the items listed in Paragraph 7d. They include firearms, dangerous weapons, ammunition, and other equipment. The prosecutor sought an order giving him authority to sell these items at public sale or auction, or to a licensed firearms dealer, with the proceeds from the sale to go to Fadness's parents to be held on Fadness's behalf. The prosecutor explained that his request to sell the items was due to Fadness's status as a convicted felon, since it is unlawful under 18 U.S.C. § 922(g)(1) for a person who has been convicted in any court of a felony to possess firearms or ammunition. Moreover, one of the conditions on the suspended portion of Fadness's sentence prohibited him from owning, possessing, or being in control of any firearms or deadly weapons. The prosecutor argued that releasing the items in Paragraph 7d to Fadness's father and mother (who, at the time, were 84 and 80 years old, respectively) would give Fadness “constructive possession” of the items. The prosecutor pointed out that Fadness had a key to his parents' house; that Fadness did not currently own his own residence and would likely have access to his parents' home upon his release from prison; that Fadness's parents currently held some of Fadness's personal property in trust for him; and that if released to Fadness's parents, the items at issue would be comingled with Fadness's other property already at their home, thus giving him dominion and control over his firearms and other weapons. The prosecutor cited federal caselaw ² for the proposition that Fadness's family could not hold his firearms in trust for him.

¶ 10 Fadness countered that he would not have possession of the items in Paragraph 7d if they were returned to his parents. He asserted that he neither owned his parents' house nor exercised dominion and control over the property inside. Moreover, he pointed out that he will be either incarcerated or under the supervision of a probation and parole officer for the next 37 years. Fadness cited state and federal cases in support of his argument that releasing property to a third party does not constitute constructive possession by a defendant who is prohibited from possessing that property.

¶ 11 The District Court held a hearing on the matter on November 17, 2010, at which Fadness and his father testified. Fadness clarified that his intention in opposing the prosecutor's petition was to ensure that he got a “fair price” for his guns “rather than a few pennies on the dollar for what they are worth.” Fadness stated that he was not trying to get his guns back. He acknowledged that “I'm never going to be touching a gun again, period. So my main concern then is just being able to sell it at a fair price.” In this regard, Fadness objected to the prosecutor's proposal to sell his firearms at public sale or auction. He explained:

I've been to other auctions in the past where things have been seized. The last one was the gentleman that committed suicide, and his items were sold very, very cheap to the general public. And I just want to get a fair price for...