State v. Harvey
| Decision Date | 21 November 1979 |
| Docket Number | No. 14603,14603 |
| Citation | 36 St.Rep. 2035,603 P.2d 661,184 Mont. 423 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Edward R. HARVEY, Defendant and Appellant. |
| Court | Montana Supreme Court |
Knight, Dahood, Mackay & McLean, Anaconda, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Ted L. Mizner, County Atty., Deer Lodge, for plaintiff and respondent.
Defendant Edward R. Harvey appeals from a conviction entered in the District Court, Third Judicial District, Powell County, on the charge of felony theft in violation of section 45-6-301, MCA.
On February 16, 1978, an information was filed in the District Court, Powell County, charging Harvey with the November 23, 1977, felony theft of a .243 caliber Sako rifle from Theodore Nelson. On February 23, 1978, Harvey entered a plea of not guilty and the District Court appointed counsel to represent Harvey. Harvey was released on a recognizance bond at this time. On April 27, 1978, however, Harvey was incarcerated in the Montana State Penitentiary for a parole violation charge.
On September 19, 1978, Harvey filed a motion to dismiss on the ground of failure to grant a speedy trial. That motion was denied two days later. Harvey then filed a writ of supervisory control with this Court on September 22, 1978. We denied the writ without prejudice on September 29, 1978.
During the time Harvey was incarcerated for the parole violation charge, he became dissatisfied with the work of his court-appointed counsel. So, on October 2, 1978, one day before the trial of this cause, Harvey excused his court-appointed counsel. Harvey represented himself throughout his trial on the charge of felony theft.
At the trial, there was a conflict in testimony concerning the circumstances surrounding the theft of the Sako rifle.
Robert Paulus, Harvey's former son-in-law, was the State's chief witness. Paulus testified at the trial that he and Loretta Paulus (Dillion), his former wife, were house guests of the Harveys during the Thanksgiving holidays. At about ten or eleven o'clock p.m. on November 23, 1977, both couples decided to go to Elliston, Montana, to sell a used pickup truck for Wallin's Ford, where Edward Harvey was employed as a salesman. They arrived in Elliston about a half hour later and stopped at a bar there.
Paulus further testified that Edward Harvey noticed a .243 caliber Sako rifle in the back window of a pickup truck parked at the bar. Ignoring the warnings of his three passengers, Edward Harvey put on a pair of gloves, unlocked the door through the vent window and took the rifle. Edward Harvey then left with the rifle and headed towards Helmville, Montana. Harvey stopped just outside of Avon, Montana, shot five shells through the rifle and discarded the leather sling from the rifle. About fifteen minutes later, Harvey and his passengers returned to Deer Lodge. Upon arriving at the Harveys' apartment, Harvey put the rifle in the closet in the bedroom.
Harvey was the only witness for his defense. He testified that Paulus brought the rifle to the Harvey's apartment on November 23, 1977. Paulus told the Harveys that he needed money. Over Harvey's objections, Paulus talked Mrs. Harvey into buying the rifle for $135. Mrs. Harvey executed a receipt for payment in full for the rifle. She handed the receipt to Paulus for his signature and walked out of the room to get the $135. While Mrs. Harvey was out of the room, Paulus signed the name Paul Johnson on the receipt, folded it in half and gave it back to Mrs. Harvey upon her return. Mrs. Harvey stored the receipt without ever looking at the signature.
On November 29, 1977, Paulus and his wife returned to their home in Roundup, Montana. On their way, they stopped at the McDonald Pass Bar in Elliston to report Harvey's theft.
In January 1978, a special deputy sheriff came to the Harvey residence to inquire about the rifle. Harvey was the only one home at the time. Harvey voluntarily gave the rifle to the deputy sheriff. An examination of the serial number confirmed that the rifle belonged to Theodore Nelson. Harvey was informed that the rifle was stolen and would have to be confiscated.
Mrs. Harvey arrived just as the deputy sheriff was leaving. The deputy sheriff was informed that Mrs. Harvey had purchased the rifle from her son-in-law, Paulus. Mrs. Harvey then produced the receipt bearing the name Paul Johnson for the deputy sheriff.
Harvey's trial on the charge of felony theft was held on October 3, 1978. A jury verdict of guilty was entered on October 4, 1978, and on October 19, 1978, Harvey was sentenced to a term of five years in the state penitentiary.
Following his conviction, Harvey, acting pro se, filed a notice of appeal and appellant's initial brief. On May 10, 1979, the District Court appointed counsel to represent Harvey upon this appeal.
Harvey raises the following issues upon appeal:
1. Was the evidence sufficient to support a finding that the value of the Sako rifle exceeded $150?
2. Did the District Court err in failing to instruct the jury that Harvey could have been convicted of a lesser included offense?
3. Was Harvey denied the right to adequate counsel?
4. Did the District Court abuse its discretion in requiring Harvey to testify in question-answer form?
5. Was Paulus an accomplice to the crime charged, and if so, did the State fail to corroborate his testimony?
6. Was it error to deny Harvey's motion for a continuance for the purpose of subpoenaing witnesses to impeach Paulus' testimony?
7. Was Harvey denied his constitutional right to a speedy trial?
Having examined the record and the briefs on both parties, we find for the State on all issues.
The first assignment of error questions the sufficiency of the evidence to support a finding that the value of the Sako rifle exceeded $150. In effect, Harvey is challenging the sufficiency of the evidence to support the verdict. The value of the property taken must exceed $150 before a conviction for felony theft will lie. Section 45-6-301(4), MCA.
Harvey's contention is without merit. The determination of disputed questions of fact and the credibility of witnesses is within the province of the jury. State v. Bouldin (1969), 153 Mont. 276, 284, 456 P.2d 830, 834. Upon appeal, we will not disturb a verdict if substantial evidence is found to support that verdict. State v. McKenzie (1978), Mont.,581 P.2d 1205, 1226, 35 St.Rep. 759, 785.
We find sufficient evidence of the value of the rifle to support the verdict rendered. At the trial, Marvin Hiatt, owner of a Deer Lodge sporting goods store, testified that the rifle had a current wholesale value of between $175 and $200 and a current retail value of between $200 and $280. Similarly, Theodore Nelson, the owner of the rifle, testified at the trial that he had the rifle appraised at $280. Harvey made no objection to the testimony of either of these witnesses.
The second assignment of error is that the District Court erred in failing to instruct the jury on misdemeanor theft.
Harvey never offered such an instruction at the trial level. In State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206, 1209-1210, we said:
The third assignment of error is that Harvey was denied the right to adequate counsel.
The record does not support the contention that Harvey's court-appointed counsel was inadequate prior to his excusal. The court-appointed counsel assisted Harvey by interviewing witnesses in preparation for trial, subpoenaing witnesses and filing in good faith two motions to dismiss.
Harvey also may not complain that he himself was inadequate at trial. The Sixth and Fourteenth Amendments to the United States Constitution guarantee to an accused the right of self-representation provided the choice has been made knowingly and intelligently. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.
The record establishes that Harvey made his choice of self-representation with his eyes wide open. Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275. The District Court repeatedly warned Harvey of the disadvantages of self-representation. In fact, the District Court appointed "standby" counsel to assist Harvey should he so request. Having made his choice of self-representation knowingly and intelligently, Harvey cannot now be heard to complain.
The fourth assignment of error is that the District Court abused its discretion in requiring Harvey to testify in question-answer form.
The mode and order of the presentation of evidence is within the sound discretion of the District Court. Rule 611(a), Mont.R.Evid., provides in pertinent part:
The District Court required Harvey to testify in question-answer form to give the State an opportunity to object and avoid the introduction of inadmissable...
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