State v. Gazda
| Decision Date | 18 December 2003 |
| Docket Number | No. 02-716.,02-716. |
| Citation | 2003 MT 350,318 Mont. 516,82 P.3d 20 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. John L. GAZDA, Defendant and Appellant. |
For Appellant: William F. Hooks (argued), Attorney at Law, Helena, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; Jennifer Anders, Assistant Attorney General, Leo Gallagher (argued), Lewis and Clark County Attorney, Helena, Montana.
¶ 1 John L. Gazda (Gazda) appeals from his conviction of deliberate homicide, a felony in violation of § 45-5-102(1)(a), MCA, following a jury trial in the First Judicial District Court, Lewis and Clark County. We affirm.
¶ 2 On or about August 9, 2001, Gazda shot and killed Bronson Smith in a remote area outside of Craig, Montana. Subsequently, authorities arrested Gazda in Las Vegas, Nevada, on a federal warrant pursuant to a federal charge that Gazda, a felon, possessed a weapon and ammunition in violation of 18 U.S.C. § 922(g)(1). He was then transported back to the state of Montana, and remained in federal custody until the conclusion of his federal trial and sentencing. On April 16, 2002, a federal jury in the United States District Court convicted Gazda on both possession offenses.
¶ 3 On January 10, 2002, before trial on the federal charges, the State charged Gazda by Information with deliberate homicide, a felony in violation of § 45-5-102(1)(a), MCA. The charges alleged that Gazda purposely or knowingly caused the death of Bronson Smith.
¶ 4 On May 23, 2002, Gazda filed a motion to dismiss the state deliberate homicide charges on double jeopardy grounds. He argued that he was being placed twice in jeopardy by virtue of his conviction of the federal charges, noting that the prosecution had presented evidence in the federal trial that he had committed the homicide. In denying Gazda's motion, the District Court found that although evidence regarding possession of the rifle would be essentially the same as was presented in federal court, Gazda's courses of conduct in possessing the firearm and ammunition, elements of the federal charges, were clear and distinct and did not arise out of the same transaction as the state charge.
¶ 5 On August 1 and 5, 2002, Gazda personally submitted handwritten letters to District Judge Thomas Honzel requesting appointment of new counsel. He claimed he and his current counsel, Randi Hood, were completely unable to effectively communicate about motion filing and defense strategy. He alleged that this total lack of communication created a conflict of interest and rendered Hood unable to adequately represent his interests.
¶ 6 In response to these allegations, the District Court conducted a hearing on August 6, 2002, regarding the initial inquiry to determine whether Gazda's complaint was substantial. The court, after receiving testimony from both Gazda and Hood, concluded that Hood was providing effective assistance of counsel and denied Gazda's motion for appointment of new counsel.
¶ 7 On August 22, 2002, a Lewis and Clark County jury convicted Gazda of deliberate homicide. It is from this conviction that Gazda appeals and raises the following issues on appeal:
¶ 8 1. Whether Montana's double jeopardy statute bars a subsequent state deliberate homicide prosecution after a federal conviction of unlawful possession of a firearm and ammunition.
¶ 9 2. Whether the District Court abused its discretion when it failed to appoint Gazda counsel during an initial inquiry addressing Gazda's request to remove appointed counsel and appoint new counsel.
¶ 10 The grant or denial of a motion to dismiss in a criminal case is a question of law which is reviewed de novo on appeal. State v. Beanblossom, 2002 MT 351, ¶ 9, 313 Mont. 394, ¶ 9, 61 P.3d 165, ¶ 9. This Court reviews denials of requests for the appointment of new counsel for abuse of discretion. State v. Weaver, 2001 MT 115, ¶ 18, 305 Mont. 315, ¶ 18, 28 P.3d 451, ¶ 18.
¶ 11 Whether Montana's double jeopardy statute bars a subsequent state deliberate homicide prosecution after a federal conviction of unlawful possession of a firearm and ammunition.
¶ 12 We have previously stated that § 46-11-504, MCA, provides criminal defendants with greater protection against double jeopardy than the traditional double jeopardy "elements" test set forth by the United States Supreme Court in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. State v. Tadewaldt (1996), 277 Mont. 261, 268, 922 P.2d 463, 467. Section 46-11-504, MCA, sets out in pertinent part:
Former prosecution in another jurisdiction. When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution in this state if: (1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction....
In Tadewaldt, this Court set forth a three-part test to determine whether a subsequent prosecution constitutes a double jeopardy violation pursuant to § 46-11-504, MCA. If the following factors are met, subsequent prosecution is barred under the terms of this statute:
Tadewaldt, 277 Mont. at 264, 922 P.2d at 465. Due to the conjunctive nature of the statute, all three factors must be met in order to bar subsequent prosecution. Neither Gazda nor the State disputes that Gazda's federal conviction of unlawful possession of a firearm and ammunition satisfies factor two and, therefore, we need only consider factors one and three.
¶ 13 The District Court found that there was no concurrent jurisdiction, thus not satisfying the first factor set out by Tadewaldt, because the federal offense could not have been charged by the state of Montana, and the state offense could not have been charged by the federal government. Gazda argues that the District Court's analysis was too narrow and that § 46-11-504(1), MCA, only requires a defendant's conduct to constitute an offense in either state or federal jurisdiction. Gazda claims that his conduct on that day subjected him to charges in each jurisdiction, federal and state. He argues that he has already been prosecuted by the federal government for his conduct that occurred on August 9, 2001, and therefore, the jurisdiction prong has been met. Thus, the state prosecution is barred.
¶ 14 Conversely, the State argues that to satisfy the jurisdiction element of a double jeopardy claim, both jurisdictions must have authority to prosecute a defendant for the same conduct, regardless of whether a charge is actually brought. It contends that Gazda must establish that the same conduct subjected him to analogous potential charges in each jurisdiction, which he is unable to establish because the charges brought by each jurisdiction were based upon different conduct. Gazda's federal charges required proof that he knowingly, continuously and non-discretely possessed a firearm, while his state charges required proof that he purposely or knowingly caused Smith's death. Relying on State v. Sword (1987), 229 Mont. 370, 747 P.2d 206, the State asserts that concurrent jurisdiction fails because state and federal courts lacked authority to prosecute equivalent offenses based on the same underlying conduct. We agree.
¶ 15 This Court has explicitly held that jurisdiction exists in both courts when both jurisdictions have authority to prosecute for the same offense. Sword, 229 Mont. at 373, 747 P.2d at 208. There is no suggestion that the United States could have charged Gazda with deliberate homicide, nor that the State could have charged Gazda with felon in possession, a federal statute with no comparable state statute. Therefore, this case does not meet factor one.
¶ 16 Gazda suggests in his reply brief that the legislature amended § 46-11-504(1), MCA, in 1997 and removed the words "concurrent jurisdiction" from the statute. In doing so, he maintains that the statute required Thus, Gazda's conduct on that one day, August 9, 2001, subjected him to charges under federal jurisdiction, therefore the state could not prosecute him for his conduct on that same day.
¶ 17 The pertinent provision of the current statute reads "[w]hen conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution...." Section 46-11-504, MCA. In our view, the amendment referred to by Gazda, does not change the meaning or rationale in the context of a double jeopardy analysis. The factual background of Gazda's prosecutions underscores this point. The federal charge arose out of continuous conduct of possession of a firearm and ammunition, which is distinct from the conduct that the State relied upon for prosecution of deliberate homicide. Moreover, possession of the gun most likely occurred well before the day in question, and is not the same conduct as purposefully or knowingly causing one's death in a discrete incident. Therefore, we conclude the District Court correctly found that the first factor had not been met.
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