State v. Matt, No. 90-177

• Docket Nº: No. 90-177
• Citation: 48 St.Rep. 614, 814 P.2d 52, 249 Mont. 136
• Case Date: June 26, 1991
• Court: United States State Supreme Court of Montana

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814 P.2d 52 249 Mont. 136 STATE of Montana, Plaintiff and Respondent,
v.
Allen Ray "Speedy" MATT, Defendant and Appellant. No. 90-177. Supreme Court of Montana. Submitted on Briefs April 12, 1991.
Decided June 26, 1991.

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[249 Mont. 138] Benjamin R. Anciaux, Polson, for defendant and appellant.

Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Helena, Larry Nistler, County Atty., and Robert S. Anderson, Deputy, Polson, for plaintiff and respondent.

WEBER, Justice.

Defendant, Allen Ray "Speedy" Matt, appeals from a conviction for felony assault in violation of Sec. 45-5-202(2), MCA, following a jury trial in District Court in the

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Twentieth Judicial District, Lake County. We affirm.

We have revised the issues as follows:

1. Should this Court modify the Just Rule as established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to evidence of other crimes, wrongs or acts of the defendant?

2. Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?

3. Was the evidence sufficient to support a verdict of guilty on the charge of felony assault?

On November 10, 1988, the defendant went to the Flathead Irrigation Project office to try to get money for a windshield that he claimed had been damaged by one of their trucks. When he failed to get what he wanted, he threw a rock through an office window and broke it.

Later that day a tribal officer went to defendant's house to talk to him about breaking the window. The defendant became verbally abusive, went into his house and refused to talk to the officer. The officer continued to talk to the defendant through defendant's door, telling defendant that he would have to get a warrant if defendant continued to refuse to talk to him. Defendant came back out of the house and an altercation occurred. The officer then placed the defendant under arrest. The defendant continued to resist, both verbally and physically. During the altercation, the officer sprayed [249 Mont. 139] the defendant in the face with his cap-stun in an attempt to subdue him. The defendant wrestled away from the officer and crawled back into his house.

The officer left the porch to call for backup. The defendant came back out of the house swinging a long sickle-shaped knife and yelling, "I'll kill you, you son of a bitch." The officer approached defendant from the rear and attempted to disarm him. A wrestling match ensued. The officer managed to knock the knife away. When the officer got away and backed off, the defendant grabbed a club-like stick. The officer put his hand on his gun, which was still in its holster. Defendant yelled, "Go ahead, shoot me", then went back into his house and out the back door. The officer sustained injuries during the altercations.

A short time later, the defendant was arrested and put into a police vehicle by other officers. Defendant repeatedly kicked the door in the vehicle until he had to be removed from the vehicle and subdued.

I

Should this Court modify the Just Rule as established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to evidence of other crimes, wrongs or acts of the defendant?

At trial the State introduced evidence that the defendant had been involved three months earlier in an altercation with a deputy sheriff in Okanogan County, Washington. The deputy sheriff testified that he was on duty at a rodeo when the defendant entered the rodeo headquarters. Defendant had assaulted a woman and he was still trying to attack his victim. The deputy had to physically separate the defendant from his victim. The defendant pushed the deputy in the chest to get him out of the way so he could get to the victim. He shoved the deputy two more times during the struggle. Another officer then took the victim to another room. When the deputy had the defendant under control and sitting down, the defendant jumped up and pushed the deputy again, attempting to leave. The deputy had to grab the defendant and pull him down to the floor to attempt to handcuff him. The defendant continued to struggle. Eventually the deputy got the defendant into handcuffs and arrested him. The deputy described him as "crazed."

Defendant contends the Washington incident was not similar to the crime for which he was on trial and that there was no connection between the events from which to infer a common scheme or plan. [249 Mont. 140] Therefore defendant contends that the Just Rule was not met. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The State contends that the evidence of the Washington

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altercation was relevant to show state of mind or intent of the defendant with regard to the assaulting of police officers. The State contends this was admissible under Rule 404(b), M.R.Evid.

In 1979, State v. Just established what has come to be called the Just Rule. Just analyzed the exceptions to the general rule of the incompetency of evidence of the commission of other crimes, pointing out that the exceptions which are the rule in Montana are of ancient lineage. Just then described the exceptions as set forth in the 1973 case of State v. Taylor (1973), 163 Mont. 106, 515 P.2d 695. The exceptions were specifically recognized in a number of cited Montana cases decided in the preceding 75 years, reaching back to State v. Peres (1903), 27 Mont. 358, 71 P. 162.

Just next made reference to both Rules 404(b) and 403, M.R.Evid. Because these are critical to the analysis, we now set them forth in full:

Rule 404. Character evidence not admissible to prove conduct, exceptions; other crimes; character in issue.

. . . . .

(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

. . . . .

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Just then states there emerged a four element rule to determine the admissibility of evidence of other crimes, wrongs or acts in criminal prosecutions. The four elements as stated in Just were:

(1) The similarity of crimes or acts;

(2) Nearness in time;

(3) Tendency to establish a common scheme, plan or system; and

249 Mont. 141] (4) The probative value of the evidence is not substantially outweighed by the prejudice to the defendant

Just applied the rule to the facts of that case and concluded that the evidence of the defendant's other acts against the victim in question were properly admitted.

While the Just Rule was entirely appropriate to the factual situation in that case, it has led to contradictory results. The third element of the Just Rule provides that evidence may be admissible for the purpose of showing a common scheme, plan or system. We agree with that conclusion in that case. However, we emphasize that Rule 404(b) is not limited only to common scheme, plan or system. Rule 404(b) provides that evidence may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Clearly Rule 404(b) provides for the admission of evidence for many purposes other than the common scheme, plan or system stated in Just. We point out that the "common scheme, plan or system" referred to in Just is listed as "plan" under Rule 404(b), according to McCormick on Evidence, 3rd Ed., Sec. 190, pp. 558-564 (1984); 22 C. Wright and K. Graham, Federal Practice and Procedure, Evidence, Sec. 5244, p. 499 (1978); and 23 C.J.S. Criminal Law Sec. 830 (1989).

While the four element rule of Just was proper under the facts of that case, and also was appropriate under the facts of State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631, application of the Just Rule has resulted in an apparent narrowing of the purposes listed in Rule 404(b). As an example, State v. Brown (1990), 242 Mont. 506, 791 P.2d 1384, applied the third element of the Just Rule in reaching a conclusion that the prosecution failed to establish a common scheme, plan or system. In Brown, the State argued that the other

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crimes evidence was offered to prove defendant's motive and intent. The court pointed out that the acts committed on previous dates, while similar in nature, does not necessarily prove that the acts tend to establish a common scheme, plan or system. The majority then concluded that the record demonstrated that the defendant's acts lacked any common scheme or plan and were instead spontaneous acts dictated by his character and the situation at hand. While it was true that the evidence in Brown failed to establish a common scheme, plan or system, that conclusion did not address the dissent which pointed out that the evidence could be found admissible [249 Mont. 142] in order to establish the defendant's opportunity, motive and intent under Rule 404(b).

We now recognize that the Just element...