State v. Gray, 82-149

• Decision Date: 14 February 1983
• Docket Number: No. 82-149,82-149
• Citation: 659 P.2d 255,202 Mont. 445,40 St.Rep. 199
• Parties: STATE of Montana, Plaintiff and Respondent, v. William J. GRAY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 255

659 P.2d 255

202 Mont. 445

STATE of Montana, Plaintiff and Respondent, v. William J. GRAY, Defendant and Appellant.

No. 82-149.

Supreme Court of Montana.

Submitted on Briefs Oct. 26, 1982.

Decided Feb. 14, 1983.

John R. Frederick, Polson, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard P. Heinz, County Atty., Polson, for plaintiff and respondent.

WEBER, Justice.

Defendant William J. Gray was convicted of negligent arson, a misdemeanor, following a jury trial in the District Court of the Fourth Judicial District, Lake County. Gray was sentenced to six months in the county jail and fined $500. Gray appeals. We affirm the District Court.

The following issues are presented for review:

1. Was the grapho analyst's testimony, as to defendant's mental state, properly excluded.

2. Did the admission into evidence of State's Exhibit No. 4 deprive defendant of a fair trial.

3. Did the trial court's instruction on the lesser included offense of negligent arson constitute reversible error.

4. Did the trial court abuse its discretion in imposing the sentence.

5. Did the trial court's reason for imposition of the sentence manifest judicial vindictiveness.

On the evening of June 17, 1981, Gray, who had been living in Phoenix, Arizona, arrived in Polson at the house where his wife, Phyllis, was residing. The house, which Gray built, was jointly owned by him and his wife.

Gray and his wife had been living apart for about a year because of marital problems. The purpose of Gray's visit to Polson to deliver the couple's ten year old son to the wife. Phyllis allowed her husband to spend the night in the house.

Gray had asked for a sleeping pill which he was given. He was also drinking brandy. Gray began unloading his car which was parked in the attached garage. Phyllis noticed the car was running and informed Gray that she was going to turn the car off. Gray grabbed the keys from the ignition before his wife could get them. The garage door was closed and Gray had placed a small log on the gas pedal to keep the car running.

About midnight, Phyllis went to bed. She could still hear noises coming from the garage. About 1:30 a.m. she was awakened by the smell of smoke. She went into the garage and found Gray lying on his back on the floor and a fire in a pile of logs near the car. She shook Gray but received no response. She returned to the house where she telephoned her father who lives nearby. When she returned to the garage, Gray was walking around. She opened the garage door and he drove the car outside. Her father arrived with a fire extinguisher and was able to extinguish the fire before the fire department arrived. The father testified that when he arrived at the scene of the fire, he found carpets, rubber, canvas, and logs on fire, with paint cans, propane bottles, a fuel oil can, and trash on the garage floor. The paint cans had been broken open. The fire had nearly gone through the sheet rock ceiling.

The jury found Gray guilty of negligent arson, a misdemeanor. Section 45-6-102, MCA, provides:

"A person commits the offense of negligent arson if he purposely or knowingly starts a fire or causes an explosion, whether on his own property or property of another, and thereby negligently: ... (b) places property of another in danger of damage or destruction."

During the trial, defense witnesses included a psychiatrist who testified as to Gray's mental state. In addition, the defense called a grapho analyst, Mrs. Maddox, to testify as to Gray's mental state. During testimony in chambers, Mrs. Maddox analyzed a writing made by Gray just before he left Phoenix and one made within a month after the fire. Mrs. Maddox testified that a handwriting analyst compares "a number of features in writing, such as analysis of angles, pressure, and slant, variations in stroke, to make determinations of that personality, state of mind, comparison of various documents." Mrs. Maddox first testified as to Gray's general personality characteristics:

"What I found is that Bill Gray, as a personality, is the kind of gentleman who has a great deal of trouble in finding in other people what he might happen to be feeling. He's the sort of person who feels that I'm a grown man, I have to deal with this. I can't put it off onto someone else. It's not their problem. It's my problem. I created the mess. I have to solve it, and the other thing that was consistent throughout all of this time is that there is a great deal of sensitivity in this gentleman. He is very sensitive to hurts from other people. He's very hurting emotionally. The writing that I saw just prior was verified by Mr. Tom Habne, Mr. Gray's attorney from Phoenix, to have been written just prior to his leaving Phoenix, seemed quite logical. He was at this time discussing some divorce items, and his writing at that time showed a lot of self control, a lot of logic in the way he was approaching things.

"The next sample that I saw was dated sometime in August after the event for which Mr. Gray has been charged, and at that time his writing showed a lot of emotional fluctuation. I feel that inbetween those two times something snapped, something was not according to the usual pattern, because the writing in August shows a lot of emotional variation. His writing goes from being sensitive to being withdrawn to being very euphoric to being very depressed, a very unstable kind of writing."

Mrs. Maddox was then questioned as to his state of mind at the time of the fire to which she responded:

"It's very hard for me to be specific about the time of the fire, as the writing I saw was dated sometime just before he left Phoenix, and then, like I say, within a month after the fire. All I can say is that there is a drastic change in there precipitated by what, I don't know, but the potential for him to act out all these feelings was there prior to his leaving Phoenix, but what precipitated the acting out of those feelings, I would not be able to even presume from the handwriting."

Her testimony was excluded from the jury.

The State argues that Mrs. Maddox's testimony was not relevant. We agree. Gray's state of mind the night he set the fire is at issue. Negligent arson requires a defendant to purposely or knowingly start a fire. 45-6-102, MCA. Mrs. Maddox's testimony did not deal with an analysis of writing made by Gray on the evening of the fire. She was unable to testify as to Gray's mental state on the night of the fire. Her testimony was not relevant. Evidence which is not relevant is not admissible. Rule 402, Mont.R.Evid. The District Court properly excluded the testimony of the handwriting analyst.

Gray, in his second issue, contends that the admission of a note, State Exhibit No. 4, into evidence was so inflammatory that its natural tendency was to prejudice the jury and deprive him of a fair trial. The note from Gray to his wife was left on her bed on December 19, 1980. The note read:

"Phyllis. Please get ready for bed and come to the basement where I am at and be with me tonight. Tonight I need you with me for the last time ever. Bill."

The trial judge has a latitude of discretion in passing on the admissibility of evidence. State v. Pendergrass (1978), 179 Mont. 106, 112, 586 P.2d 691, 694; State v. Rollins (1967), 149 Mont. 481, 484, 428 P.2d 462, 464. Even if evidence is improperly admitted, there is reversable error only if the defendant is prejudiced. State v. Paulson (1975), 167 Mont. 310, 315, 538 P.2d 339, 342; State v. Kuilman (1941), 111 Mont. 459, 462, 110 P.2d 969, 970.

"The test of prejudicial error requiring reversal is this: Is there a reasonable possibility that the inadmissable evidence might have contributed to the conviction?" State v. Langan (1968), 151 Mont. 558, 568, 445 P.2d 565, 570.

We fail to see how the note could have been so inflammatory as to prejudice the jury and deprive Gray of a fair trial. We find that the note could not have reasonably contributed to the jury verdict.

The third issue presented by Gray alleges error because of the jury instruction of a lesser included offense. Gray was charged with deliberate arson. Section 45-6-103(1), MCA, provides:

"A person commits the offense of arson when, by means of fire or explosives, he knowingly or purposely: (a) damages or destroys an occupied structure which is property of another without consent; or (b) places another person in danger of death or bodily injury."

At the conclusion of the defense, the State requested an instruction on negligent arson.

Gray was found guilty on the negligent arson instruction. He contends that the inclusion of the lesser included offense instruction resulted in unfair surprise as he only presented a defense...