State v. Matz

• Decision Date: 27 December 2006
• Docket Number: No. 05-345.,05-345.
• Citation: 335 Mont. 201,150 P.3d 367,2006 MT 348
• Parties: STATE of Montana, Plaintiff and Respondent, v. Steven Leo MATZ, Defendant and Appellant.
• Court: Montana Supreme Court

150 P.3d 367

2006 MT 348

335 Mont. 201

STATE of Montana, Plaintiff and Respondent, v. Steven Leo MATZ, Defendant and Appellant.

No. 05-345.

Supreme Court of Montana.

Submitted on Briefs May 24, 2006.

Decided December 27, 2006.

For Appellant: Brad L. Arndorfer, Arndorfer Law Firm, P.C., Billings, Montana.

For Respondent: Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Ed E. Zink, Deputy County Attorney, Missoula, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶1 Steven Leo Matz (Matz) appeals from the verdict and judgment entered by the Thirteenth Judicial District Court, Yellowstone County, finding him guilty of felony aggravated assault and enhancing his sentence for that offense with an additional five years pursuant to § 46-18-221, MCA, based upon the finding that he used a weapon in the commission of the offense. We affirm.

¶2 We consider the following issues on appeal:

¶3 (1) Did the District Court err in denying Matz's proposed jury instruction which would have required the State to prove that Matz did not act with justifiable use of force?

¶4 (2) Did Matz's sentence enhancement for using a weapon violate double jeopardy where his underlying conviction was for aggravated assault?

¶5 (3) Did the District Court err by giving a jury instruction that did not distinguish which form of serious bodily injury was being alleged?

¶6 (4) Did the District Court abuse its discretion by excluding evidence that the alleged victim had marijuana and a marijuana pipe in his pocket at the time of the altercation?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 Steve Andersen (Andersen) and his wife, Amber Andersen (Amber), managed the Village Inn Pizza Parlor (Village Inn) in Billings, Montana. On the night of May 30, 2004, at approximately ten o' clock in the evening, while taking a break from cleaning, Andersen noticed an individual on a bicycle cut through the parking lot, which was situated behind the restaurant. Knowing that there was only one way out of the parking lot, Andersen, joined by Amber, waited for the individual to ride back out. The individual, who turned out to be Matz, was riding his bicycle for exercise and in search of neighborhood dumpsters. Matz frequented dumpsters behind neighborhood pizza restaurants to recover discarded pizza, which he fed to his neighbor's dogs.

¶8 Andersen and Amber, after waiting a minute or two, walked out to the parking lot and found Matz astride his bicycle while holding up the lid of the dumpster and perusing its contents. Andersen told Matz that he was on private property, to get out of the dumpster, and threatened to call the police. Matz indicated that he had a right to be there because the dumpster was public domain. Andersen issued another warning for Matz to leave the property and requested Amber to call the police, but the testimony about what occurred thereafter was conflicted.

¶9 A business videotape disclosed the parties' initial meeting but did not capture the following altercation between Andersen and Matz. Matz testified that Andersen was belligerent and, as Matz rode his bicycle past Andersen to depart the premises, Andersen attacked him and knocked him off his bicycle and onto his back. Being susceptible to a shoulder injury and afraid he would be kicked in his shoulder, Matz testified that he pulled a gun he was carrying to protect himself, explaining that he is a licensed firearm dealer and that he carried the gun to defend himself while riding his bicycle in the evening. In contrast, Andersen testified that, after telling Amber to call the police, Matz began taunting Andersen while Andersen implored Matz to leave. Matz responded by riding his bicycle over to within some two and a half feet of Andersen, pulling the gun from his pocket, and asking, "What do you think of this, tough guy?"

¶10 Seeing a gun pointed at his head, Andersen grabbed it with both of his hands in an effort to take it away. Struggling, both men fell to the ground. Matz pushed the gun barrel into Andersen's side, while Andersen tried to point it away from his body. During the struggle Matz fired the gun twice, with one shot penetrating Andersen's stomach and the other grazing his arm, but this did not end the battle. Hearing the gunshots, Amber ran outside and, seeing Matz on top of her husband, jumped onto Matz's back and began choking him in an effort to remove him from Andersen. When Andersen yelled for Amber to grab the gun, Amber reached around the back of Matz and grabbed the four hands that were already clutching the gun, and all three of the parties struggled to control the gun. When, during the mêlée, Amber noticed that the gun had become pointed toward Matz beneath her, and thinking that her husband may have been mortally wounded, she unsuccessfully attempted to discharge the firearm into Matz. Quickly responding police officers found the parties thus engaged and broke up the struggle.

¶11 The State filed its information charging Matz with aggravated assault. A jury trial was held which ended with Matz moving for and being granted a mistrial. A second trial in January 2005 resulted in a conviction. Prior to sentencing, Matz filed a "motion to strike and dismiss claim for weapon enhancement penalty," seeking to deny the State's request for a sentence enhancement, which the State had first asserted in the information. The District Court denied this motion, and Matz was sentenced to fifteen years in the Montana State Prison and an additional five years pursuant to § 46-18-221, MCA, because he was found to have used a weapon while engaged in the commission of the underlying offense of aggravated assault. Matz appeals.

DISCUSSION

¶12 (1) Did the District Court err in denying Matz's proposed jury instruction which would have required the State to prove that Matz did not act with justifiable use of force?

¶13 "We review claims of instructional error in a criminal case to determine whether the jury instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case." State v. DuBray, 2003 MT 255, ¶88, 317 Mont. 377, ¶88, 77 P.3d 247, ¶88 (citing State v. Long, 274 Mont. 228, 232, 907 P.2d 945, 947 (1995)). "Since a trial court has broad discretion when instructing a jury, reversible error will occur only if the jury instructions prejudicially affect the defendant's substantial rights." State v. Maloney, 2003 MT 288, ¶14, 318 Mont. 66, ¶14, 78 P.3d 1214, ¶14 (quoting State v. Strauss, 2003 MT 195, ¶47, 317 Mont. 1, ¶47, 74 P.3d 1052, ¶47).

¶14 Matz's proposed jury instruction stated: "You are instructed [that] the Defendant, Steven Leo Matz, is not required to prove self-defense or justification. The State is required to prove beyond a reasonable doubt that justification or self-defense does not exist in this case." Matz first argues that the District Court erred when it refused this proposed instruction because requiring a defendant to bear the burden of proof is unconstitutional. He argues it is only logical that when there are issues of self-defense, as here, the State must be required to prove beyond a reasonable doubt that justification or self-defense does not exist. Matz asserts this Court has not expressly overturned State v. Azure, 181 Mont. 47, 591 P.2d 1125 (1979), wherein the Court held that a defendant's proffered instruction that "the State must prove the absence of justification [for using force in self-defense] beyond a reasonable doubt" was a correct statement of the law. Azure, 181 Mont. at 54, 591 P.2d at 1130. Therefore, he argues, it is still proper to instruct a jury that the prosecution bears the burden of proving lack of justification for self-defense beyond a reasonable doubt when this issue is raised.

¶15 The State argues that while Matz may be correct that this Court has not expressly overruled its decision in Azure, its applicability has certainly been called into question and cannot stand beside more recent cases, such as State v. Daniels, 210 Mont. 1, 682 P.2d 173 (1984), wherein this Court noted the many cases challenging self-defense or justifiable use of force instructions it had decided. The Daniels Court then stated:

From these cases the true rule can be drawn: The State has the burden of proving beyond a reasonable doubt every element of the offense charged, or any lesser-included crime within such charge; the defendant if he raises an affirmative defense has the burden of producing sufficient evidence on the issue to raise a reasonable doubt of his guilt. . . .

Daniels, 210 Mont. at 16, 682 P.2d at 181. The State notes that Matz raised justifiable use of force as an affirmative defense to the charge and that, therefore, he bore the burden of producing sufficient evidence to establish the defense.

¶16 We agree with the State that Azure's statement, quoted above, approving a jury instruction which placed the burden upon the State to establish the absence of justification for use of force, is no longer good law. Indeed, we have previously explained that this was the effect of our holding in Daniels. In State ex rel. Kuntz v. Thirteenth Jud. Dist., 2000 MT 22, ¶42, 298 Mont. 146, ¶42, 995 P.2d 951, ¶42, we noted that "[a]lthough not expressly holding so, Daniels overturned a line of case law, notably State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, and State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125, that had previously held that jury instructions stating that the State had the burden to prove an absence of justification beyond a reasonable doubt were proper." We also cited State v. Gratzer, 209 Mont. 308, 318, 682 P.2d 141 (1984), for this proposition.

¶17 Matz raised justifiable use of force as his affirmative defense to the shooting. Therefore, it was properly and constitutionally Matz's burden at trial to produce sufficient evidence to raise a reasonable doubt of his guilt based on his justifiable use of...