State v. Gladue, 83-144

• Citation: 209 Mont. 235,679 P.2d 1256
• Decision Date: 19 April 1984
• Docket Number: No. 83-144,83-144
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. William John GLADUE, Defendant and Appellant.

Page 1256

679 P.2d 1256

209 Mont. 235

STATE of Montana, Plaintiff and Respondent, v. William John GLADUE, Defendant and Appellant.

No. 83-144.

Supreme Court of Montana.

Submitted on Briefs Jan. 26, 1984.

Decided April 19, 1984.

Michael S. Smartt, Great Falls, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, for plaintiff and respondent.

MORRISON, Justice.

PROCEDURE:

Defendant William John Gladue appeals from judgment of conviction on counts of criminal mischief and attempted burglary entered by the District Court of the Eighth Judicial District. Gladue was sentenced to two concurrent ten (10) year terms for the felony convictions and received an additional five-year sentence for his status as a persistent felony offender.

FACTS:

The Great Falls Police Department received a call shortly after 4:00 a.m., May 23, 1982, reporting a burglary was in progress at the Sports Room Bar. The responding officer parked his patrol car and walked to a vantage point where he could observe the bar. He heard loud banging noises coming from the vicinity of the Sports Room Bar and witnessed two individuals on the roof of the business establishment, neither of whom he could identify. It appeared that one acted as a "lookout", while the other man was banging on the air conditioning vents. Likewise, the second responding officer observed two individuals on the roof of the subject building, but was unable to specifically identify either of them other than both were male.

The suspects made an attempted escape from the scene shortly after the second officer arrived. Both officers followed in pursuit and ordered the suspects to halt. One suspect (later identified as David Alan Lapier) stopped in response to this command and was arrested.

The chase and apprehension of the other suspect eventually resulted in the arrest of the defendant, William Gladue. Ignoring the policemen's order to halt, the second suspect, who was carrying a crowbar, ran west from the Sports Room and out of sight around the corner of the neighboring Darigold building. The record reveals that when the pursuing officer rounded the corner seconds after the suspect had, the suspect was nowhere to be seen. The officer immediately determined the probable path of escape to be toward an area where numerous large, wooden shipping crates were stored. Two policemen attempted to contain the area around the crates and began searching the moving containers. Within fifteen minutes a Deputy County Sheriff arrived with his tracking dog. The dog searched the crates and discovered the defendant hiding in one of the shipping containers. Five to ten feet from where the defendant was discovered a tire iron was found on top of a crate.

Another Great Falls officer was dispatched to the scene for followup investigation, documentary photographing and analysis of evidence. While fingerprints and footprints were found at the scene of the crime, none were positively matched to the defendant.

At trial two witnesses testified for the defense: the defendant and Brook Trainor, the defendant's girlfriend. Both defense witnesses agreed that the evening of May 22, 1982 started at the Gaslight Bar where the defendant and Brooke met friends including David Lapier, the first suspect arrested at the scene of the crime. Subsequently, the defendant and Trainor, along with David Lapier, attended an after-hours party in the home of another friend. Gladue and Trainor began to argue and then left the party bound for a Circle K store to purchase cigarettes. As a result of their continuing argument Gladue and Trainor parted company; consequently, Trainor's testimony does not corroborate the defendant's explanation of his activities prior to being found in the moving crates. While waiting outside the store for Gladue, Trainor started talking with another man and ultimately left the Circle K with him in his car. The defendant claims he followed Trainor and her new companion on his motorcycle. He stated that he parked outside an apartment building he suspected they entered and waited. Gladue then saw a police cruiser. Thinking he would be arrested for either his intoxication or a delinquent traffic violation, the defendant ran across the street and hid in the moving crates where he was later detected by the police dog and arrested.

The appellant presents two issues:

ISSUE NO. I:

Is the evidence sufficient to sustain a conviction of the defendant for the crimes of attempt (burglary), a felony, and of criminal mischief, a felony?

ISSUE NO. II:

Does a prior, unrevoked deferred imposition of sentence for a felony constitute a previous "conviction" for purposes of Montana's persistent felony offender statutes; and, if not, was Gladue improperly determined to be a persistent felony offender and thus improperly sentenced as such?

The defendant contends that the State's evidence at trial was insufficient to sustain a finding of guilt. Defendant's position is: that police officers at the scene were unable to identify their suspects until after they were in custody; that, while fingerprints and shoe/boot/footprints were found at the scene of the crime, none of such prints were determined to belong to Gladue; that the record is devoid of evidence that Gladue was with the co-defendant Lapier at the time Lapier (admittedly) committed the crimes; that the evidence is uncontroverted that Gladue was physically incapable of making an escape in the fashion that the police officers...