State v. Hagberg
| Decision Date | 18 June 1996 |
| Docket Number | No. 95-345,95-345 |
| Citation | 277 Mont. 33,920 P.2d 86,53 St.Rep. 528 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Terry Lee HAGBERG, Defendant and Appellant. |
| Court | Montana Supreme Court |
Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Thomas P. Meissner, Fergus County Attorney, Lewistown, for Respondent.
Defendant Terry Lee Hagberg (Hagberg) appeals from the jury verdict finding him guilty of the charges of felony assault and misdemeanor resisting arrest and from the Tenth Judicial District Court, Fergus County's sentence and judgment. We affirm.
1. Did the District Court err in denying Hagberg's motion to dismiss the information on grounds that the alleged facts failed to state an offense?
2. Did the District Court err in denying Hagberg's motion to dismiss alleging that he had been denied his right to a speedy trial?
3. Did the District Court err in admitting evidence of Hagberg's prior acts?
At approximately 10:20 p.m. on February 28, 1994, Hagberg and his wife, Eleanor, stopped to get something to eat at the Hackamore Supper Club in Lewistown, Montana. After learning that the restaurant was closed, Hagberg and Eleanor returned to their truck. The bar and restaurant employees heard yelling and banging on the truck and called the sheriff's department for assistance. Hagberg left before Deputy Sheriff Jack Barney and Detention Officer Troy Eades arrived. After hearing the description of the vehicle over the radio, Highway Patrol Officer Mantooth spotted the vehicle, turned around, and caught up with it. The vehicle pulled out to pass a car, stayed in the passing lane, and while in the no-passing zone, passed another car and continued over a hill.
After Officer Mantooth turned on his top lights, the vehicle swerved a little bit and pulled off the road. Officer Mantooth pulled in behind the Hagberg's and got out of his car. As he started walking toward the vehicle, Eleanor got out of the driver's side. Officer Mantooth asked her to get back in the vehicle and roll down her window, to which she responded that it did not work. Officer Mantooth reached in the door with his left hand and rolled down the window, stating that it did indeed work. Hagberg then said "why don't you let her shut the door?" Officer Mantooth then flipped his flashlight over to glance at Hagberg. As he did so, he noticed an empty holster on the seat between them. He could clearly see that the holster did not have a gun in it. Officer Mantooth looked back over to Hagberg who had bent over with his arms between his legs and his hands by the floor. Officer Mantooth noticed that Hagberg had a glazed look "like nobody was home ... it spooked you" and smelled like an alcoholic beverage.
At that time, Officer Mantooth realized that he needed to back off from the situation; he told Eleanor that when she found her driver's license, registration, and insurance to bring them back to his patrol car. Officer Mantooth radioed to Deputy Barney for back up assistance because he thought he had a situation with a man with a gun. Eleanor started the vehicle and pulled forward as though she was going to leave, but stopped after Officer Mantooth hit his airhorn. Officer Mantooth testified that when the vehicle pulled forward, he thought he was going to have a pursuit. However, the Hagberg's stopped and waited in their vehicle and Officer Mantooth waited in his car until assistance arrived.
When Deputy Barney and Troy Eades arrived, Officer Mantooth told them that he thought Hagberg had a gun, that there was an empty holster on the seat, that Eleanor reacted nervously, that he thought Eleanor was under the influence of alcohol, and that he could not do anything with Hagberg or Eleanor until he was sure that he was safe and that Hagberg no longer had a gun. Based on his training in defending against hostile situations, Officer Mantooth determined that he would approach the vehicle from the passenger's side, see if he could get Hagberg to come out and if he would not come out voluntarily, he would have to pull Hagberg out and put him down on the ground.
Officer Mantooth approached the passenger side of the vehicle, opened the door, and said "I need you to step out." Hagberg attempted to close the door on Officer Mantooth's shoulder while his other hand was still down between his knees. Officer Mantooth then grabbed Hagberg, spun him out of the truck, and brought him down on the ground. Hagberg had a loaded black single-action revolver in his hand. Officer Mantooth grabbed the hammer of the revolver to prevent the gun from discharging. As Deputy Barney came around the back of the Officer Mantooth then heard Eleanor screaming that she wished that she had not left her gun at home. Eleanor had locked the door and would not open it. After Deputy Barney reached in from the passenger's side and removed the keys from the ignition, Eleanor unlocked the door but still refused to come out. Officer Mantooth removed her from the truck and placed her in handcuffs. Eleanor yelled "Honey, they are violating me" to which Hagberg returned a rude comment and threatened to kill the officers. The officers took Hagberg and Eleanor to the Fergus County jail.
truck, Officer Mantooth was pulling Hagberg out of the truck. Deputy Barney helped wrench the gun from Hagberg. He unloaded and secured the gun while Officer Mantooth tried to handcuff Hagberg. Officer Mantooth and Troy Eades had to physically restrain Hagberg and wrestle his hands behind his back in order to handcuff him.
On March 30, 1994, the Fergus County Attorney filed an information in the Tenth Judicial District Court, charging Hagberg with felony assault and misdemeanor resisting arrest. The State supported its motion for leave to file the information with an affidavit setting forth the facts of the charges. At his arraignment, Hagberg entered a not guilty plea to each charge. The State filed a motion to revoke bail alleging that Hagberg had violated the conditions of his release by committing additional crimes and by using alcohol. At the July 25, 1994 hearing on the motion, Hagberg admitted the violations and stated that he would voluntarily enter an inpatient chemical dependency program. The District Court entered an order for the program which was subsequently rescheduled.
On July 25, 1994, the State filed a notice of intent to introduce evidence of other acts of Hagberg's which occurred on March 4, 1979 and on October 24, 1993. Hagberg filed an objection to the use of the other acts evidence. On September 28, 1994, the District Court issued an order releasing Hagberg from bail and setting the trial for November 9, 1994. For reasons not reflected in the District Court file, the trial did not occur as scheduled in November. The district court judge's term ended in January 1995, therefore the new district court judge held a scheduling conference where he reset the trial for April 3, 1995. On March 1, 1995, Hagberg filed a motion to dismiss for lack of a speedy trial.
On March 10, 1995, Hagberg filed another motion to dismiss, this motion alleging that the arrest had been illegal. Following a hearing, the District Court denied this second motion to dismiss. The State withdrew its request to introduce evidence of Hagberg's 1979 incident, yet restated its request to introduce evidence of Hagberg's 1993 incident. On the first day of trial, the District Court ruled that the State could introduce evidence of the 1993 incident.
The jury returned a guilty verdict on both the felony assault charge and the misdemeanor resisting arrest charge. The District Court sentenced Hagberg to 44 days in the Fergus County Jail for which Hagberg received credit for 44 days he previously served; 3 years in the custody of the Department of Corrections, all of which were suspended; and 2 years in the custody of the Department of Corrections for use of a weapon. Hagberg appeals from the jury verdict and from the sentence and judgment entered by the District Court.
Hagberg's arguments are twofold. First, he argues that his arrest was illegal. Second, he argues that the facts did not rise to the level of an offense. The State counters that the arrest was a legal warrantless arrest and that the affidavit in support of the information set forth sufficient facts to support a felony assault conviction. We review a motion to dismiss to determine whether the district court abused its discretion in granting or denying the motion. State v. Pinkerton (1995), 270 Mont. 287, 290, 891 P.2d 532, 535.
Section 45-5-202, MCA, provides that "A person commits the offense of felony assault if he purposely or knowingly causes: (a) bodily injury to another with a weapon; (b) reasonable apprehension of serious bodily injury in another by use of a weapon; or (c) bodily injury to a peace officer or a person who is responsible for the care or custody of a prisoner."
Hagberg relies solely on State v. Merseal (1975), 167 Mont. 412, 538 P.2d 1366, for his argument that the facts fail to support the charge of felony assault. In Merseal, we determined whether substantial evidence supported the verdict. We held that the record was deficient of credible evidence in support of the conclusion that the defendant's conduct placed the officer in reasonable apprehension or fear. Merseal, 538 P.2d at 1368. Specifically, the officer presented inconsistent testimony on whether he would have to shoot at the defendant if the defendant had reached for his gun. Without first searching the car for a gun, the officer rode in the defendant's car when he knew that the defendant probably had his gun in the car. Merseal, 538 P.2d at 1368.
Merseal is distinguishable from the...
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