State v. Greywater
| Decision Date | 30 January 1997 |
| Docket Number | No. 96-135,96-135 |
| Citation | 282 Mont. 28,939 P.2d 975 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Christopher GREYWATER, Defendant and Appellant. |
| Court | Montana Supreme Court |
William F. Hooks, Appellate Defender, Helena, for Defendant and Appellant.
Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena, Dennis Paxinos, County Attorney; John Kennedy, Deputy County Attorney, Billings, for Plaintiff and Respondent.
A jury in the Thirteenth Judicial District, Yellowstone County, found Christopher Greywater guilty of robbery. Greywater appeals. We affirm.
Greywater raises two issues on appeal.
1. Did the District Court err when it refused Greywater's proposed instruction that theft is a lesser included offense of robbery?
2. Did the District Court err when it refused to consider a motion in limine to exclude an eyewitness identification of Greywater?
On April 3, 1995, at about midnight, Darrell Senner was parked in downtown Billings, Montana. He was in town on business and had $250 in his billfold, including two $100 bills. As Senner sat in his van, a male wearing a black and gray sweater approached The man, later identified by Senner at trial as Christopher Greywater, opened the van door and hit Senner in the head. Greywater jumped on top of Senner and struck him on the head and face. He then spit on Senner and yelled, "You know what the f--- I want." Senner handed Greywater his billfold. Greywater removed the money and ran. Senner followed Greywater and two other men down an alley. After emerging from the alley, Senner saw a police car and approached the officer sitting inside.
and asked for a smoke. Senner responded that he did not smoke.
Senner spoke with Billings Police Officer Sandra Leonard. He described his assailant as a male Native American wearing a black and gray sweater, accompanied by two other Native Americans. Officer Leonard radioed dispatch with the description. After Officer Leonard verified that Senner was staying at the War Bonnet Inn, she left.
Billings Police Officer James Garten was dispatched to the downtown area. There, he observed three men walking down the street near where the robbery had occurred. One was wearing a black and gray sweater. Billings Police Officer Jeff Chartier also noticed the same three men, one of whom was wearing a sweater similar to that described by dispatch. The two officers stopped their vehicles behind the three men, exited, drew their weapons, and ordered the men to the ground. Christopher Greywater was later identified as one of the three suspects. He was wearing a black and gray sweater.
As Senner was driving to his motel, he observed several handcuffed individuals lying facedown on the sidewalk. He recognized one as wearing the sweater worn by the individual who had robbed him.
The police conducted a pat-down search of Greywater. Inside his pocket they found a large amount of cash, including a $100 bill. Two twelve packs of beer and a bag containing a bottle of alcohol were lying next to him. Because the alcohol was unopened, Officer Leonard suspected that it had been recently purchased. He entered a nearby bar and spoke with James Steinmetz.
Steinmetz bartended at the Empire Bar on April 2 and 3, 1995. He testified that at about closing time, Greywater entered the bar and purchased a case of beer and a bottle of whiskey. Greywater paid for the alcohol with a $100 bill, the only $100 bill Steinmetz had seen that evening.
Steinmetz had seen Greywater inside the Empire Bar earlier that evening. When Greywater entered after 1 a.m., Steinmetz testified that Greywater was excited and in a much better mood than he had been previously. After purchasing the alcohol, Greywater and two other individuals left the bar in a hurry. Steinmetz testified that the black and gray sweater, which the police seized after Greywater's arrest, was of a similar color and design as the one Greywater had been wearing when he entered the bar.
Greywater and the two other suspects were taken into custody, placed in separate police cars, and driven to the War Bonnet Inn. There, under a lighted canopy near the motel entrance, Officer Gartner asked Senner if he recognized any of them. Senner looked into the cars containing the other two suspects but made no identification. He then looked into the third police car and positively identified Greywater as the individual who had robbed him.
Greywater was charged by information with robbery in violation of § 45-5-401(1)(a), MCA. He pleaded not guilty. Following a jury trial, he was found guilty of robbery and sentenced to fifteen years at the Montana State Prison. Greywater appeals.
1. Did the District Court err when it refused Greywater's proposed instruction that theft is a lesser included offense of robbery?
During settlement of jury instructions, Greywater offered a proposed instruction that misdemeanor theft is a lesser included offense of robbery, citing § 46-16-602, MCA (1989), as authority. The State objected, citing State v. Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, and State v. Albrecht (1990), 242 Mont. 403, 791 P.2d 760. The District Court refused Greywater's proposed instruction by applying the "same elements" test in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. The court then gave the following instructions, offered by the State and accepted without objection by Greywater, regarding the offense of robbery:
A person commits the offense of robbery (felony) if, in the course of committing a theft he inflicts bodily injury upon another.
To convict the defendant of the charge of robbery (felony), the State must prove the following elements:
1. That the defendant committed theft; and
2. That the defendant while so doing inflicted bodily injury upon Douglas Senner; and
3. That the defendant acted purposely or knowingly.
. . . . .
A person commits the offense of theft if he purposely or knowingly obtains or exerts unauthorized control over property of the owner, and has the purpose of depriving the owner of the property.
Greywater asserts that the court erred as a matter of law when it refused to instruct the jury that theft is a lesser included offense of robbery.
A criminal defendant is entitled to a requested lesser included offense instruction where, based on the evidence, the jury rationally could be warranted in convicting on the lesser offense and acquitting on the greater offense. Section 46-16-607(2), MCA; State v. Smith (1996), 276 Mont. 434, 443, 916 P.2d 773, 778. Therefore, we must first determine whether, as a matter of law, theft is a lesser included offense of robbery. If so, we must then determine whether Greywater's proposed jury instruction was supported by the evidence. Smith, 916 P.2d at 778.
This Court has long employed the Blockburger test to determine what constitutes a lesser included offense. The test provides:
"[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not...."
Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Iannelli v. United States (1975), 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17, further explained the Blockburger test, stating:
If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.
Greywater argues that although this Court used the Blockburger test in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, upon which Albrecht and Kills On Top were decided, to determine that theft is not a lesser included offense of robbery, that Madera applies to double jeopardy issues, not to jury instructions. He suggests that in the context of lesser included offense jury instructions, the focus of the Blockburger test should not be limited to a comparison of the statutory elements, but instead should include an inquiry into the facts adduced at trial. We disagree.
In Madera, the defendants were charged and convicted of both felony theft and robbery. We held that prosecution for both offenses did not violate double jeopardy, concluding that felony theft was not a lesser included offense within the charge of robbery under Blockburger because felony theft required proof that the value of the property taken exceeded a certain dollar amount, an element not required for robbery. Madera, 670 P.2d at 557-58.
In Albrecht, the defendant argued that the trial court erred by refusing to instruct the jury that theft is a lesser included offense of robbery. We recognized that Madera involved a double jeopardy issue, not a jury instruction. Albrecht, 791 P.2d at 762. However, we refused to deviate from the Blockburger test to determine whether theft is a lesser included offense of robbery in the context of jury instructions.
We have ruled that theft is not a lesser-included offense of robbery, Madera, 670 P.2d at 558, albeit for different reasoning.... Not only does theft require an additional element of proof regarding value, our statutes specify that commission of theft is not required for commission of a robbery. Section 45-5-401, MCA, requires only that the actor "be in the course of committing the theft." Under the statute, in order for a robbery charge to adhere, a person does not actually have to complete the theft but only be in the course of committing the theft.
We also noted that the Criminal Law Commission Comments to § 45-5-401, MCA, illustrate that theft is not a lesser included offense of robbery:
Common-law robbery was theft...
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