State v. Montague, s. 917--I
| Decision Date | 09 April 1974 |
| Docket Number | 1043--II,Nos. 917--I,s. 917--I |
| Citation | 521 P.2d 64,10 Wn.App. 911 |
| Parties | The STATE of Washington, Respondent, v. Robert Jewell MONTAGUE, Appellant. The STATE of Washington, Respondent, v. Howard R. PETERSON, Appellant. |
| Court | Washington Court of Appeals |
Allan L. Overland, Tacoma, for appellant Howard R. Peterson.
Robert G. Kerr, Tacoma, for appellant Robert J. Montague.
Douglas D. McBroom, Chief Crim. Deputy Pros. Atty., Ronald L. Hendry, Pros. Atty., Philip H. Brandt, Deputy Pros. Atty., Tacoma, for respondent.
Defendants Robert J. Montague and Howard R. Peterson were convicted by jury verdict of the crime of second degree burglary. The trial court imposed sentence upon Montague pursuant to statute. Subsequent to the jury verdict the prosecuting attorney filed a supplemental information against Peterson charging him with being an habitual criminal. By jury verdict he was found guilty and the trial court sentenced him to confinement for life. Each defendant has appealed from the judgment and sentence imposed upon him.
The basic facts are that on July 4, 1972 the lock on the front door of a dwelling in Fife, Washington, in which Robert and Suzanne Satiacum live, was broken. When Suzanne Satiacum came home at about 5:30 p.m. she attempted to open the front door and found it locked with the double lock from the inside of the house. She obtained a gun from her car, saw a man inside and heard heavy footsteps on the inside stairway. After an ineffectual exchange of gunfire between Mrs. Satiacum and a person inside the house she heard glass breaking in the back of the house and saw two men jump through a broken window. She saw the two men run across her back yard and fired several more shots at them. One of the men shouted to the other, 'Come on, Howie, come on.'
Within a few minutes police officers arrived and the two defendants were found in the general vicinity, lying in the brush, and were apprehended. When apprehended, defendant Montague had $12,000 in his possession, plus a .357 magnum revolver from which at least one shot had been fired. Later, when he was being searched at the police station, $2,000 in rolled-up $100 bills fell from inside his underwear. Mrs. Satiacum testified that approximately $15,000 was missing from the house, and she also identified the two defendants as the two men she had been running across her back yard after having jumped through a broken widow.
Defendant Peterson did not testify at trial. Defendant Montague did testify that he jimmied the front door with a crowbar, entered the house, and that he later found the gun inside the house. Montague explained his presence in the house by relating a conversation he had in the latter part of June, 1972, with his former cell mate, 'Speedy' Velasquez, which indicate to Montague that Robert Satiacum wanted his house 'ripped off.' Montague had never talked to Satiacum, but his understanding, after the conversation with Velasquez, was that he (Montague) was to go to the Satiacum residence in the afternoon of July 4, remove what money he found inside, 'tear up the bedroom and make it a burglary type effect,' and later take two-thirds of the money to Robert Satiacum's 'Smoke Shop.' Montague would be permitted to retain the other one-third of the money taken from the house.
When asked whether or not it appeared unusual to him that someone wanted his house burglarized, Montague replied, 'I thought it was unusual, there must have been a reason.' When asked whether or not he and 'Speedy' had discussed any reason, he replied:
Well, it's kind of funny like. You don't hardly talk about those things like he really didn't say anything, but he indicated may be something due to tax or something, you know, I don't want to know, if everything was okay, then all I had to do was go out there and pick up the money then and I got a third of it, that's all right with me.
Velasquez, who incidentally acknowledged five separate convictions for burglary or possession of burglary tools, substantiated Montague's version of the conversation. In addition, he testified that Robert Satiacum, whom he had known for a number of years, had 'approached me' and 'asked me if I would rip off his home for him.' He told Satiacum that he wanted nothing to do with that kind of a proposition, but later he met Montague in a tavern in Tacoma and told Montague about Satiacum's offer. According to Velasquez, after Montague expressed an interest in the proposition, Velasquez then told Satiacum, 'I found somebody that would do it for you, and he told me, he says okay.' Timing and other details of the operation were then worked out and related to Montague by Velasquez.
Satiacum denied that he had any such conversation with Velasquez and also declared that he had not even seen Velasquez in over five years.
Montague's theories of defense are that he entered Satiacum's residence (1) at Satiacum's direction and with his consent; or at worst, (2) with the 'reasonable belief' that Satiacum had given his consent not only to the entry but also to the taking of money and destruction of property inside the premises. Accordingly, he proposed several instructions in support of those theories. The trial court did instruct as to the first of these theories, as follows:
#14
A person is not guilty of burglary if he breaks and enters a house at the direction of a person who is entitled to the possession of the house.
However, the trial court refused to recognize the second theory of defense and, accordingly, refused Montague's instructions, primarily one which declared:
A person does not commit a crime by destroying property or taking property or entering a house, if the acts are done upon a Reasonable belief that the owner of the property destroyed or taken or of the house entered, has given his consent or direction to the taking or destruction or entry. Consent may be either expressed or implied.
(Emphasis added.)
Instead, the trial court instructed the jury:
#10
You are instructed that every person who With intent to commit some crime therein breaks and enters any building or part thereof, or a room or other structure wherein property is kept for use, sale or deposit, is guilty of Burglary in the Second Degree.
The term 'break' as defined by the laws of the State of Washington relating to the crime of burglary means and includes the application of some force however slight to move some obstacle to entry, the opening, breaking or removal of a widow or door whether locked or not, constitutes such breaking.
The term 'enter' as defined by the laws of the State of Washington relating to the crime of burglary means and includes the act of intruding any portion of the body of the person making an unlawful 'breaking' as previously defined for you.
Every person who shall unlawfully break and enter or unlawfully enter any building or structure Shall be deemed to have broken and entered or entered the same With intent to commit a crime therein, unless such lawful breaking and entering or unlawful entry shall be Explained by testimony satisfactory to the jury To have been made without criminal intent.
If you find from the evidence beyond a reasonable doubt all of the following alleged facts, to-wit:
1. That the defendant, ROBERT JEWELL MONTAGUE, did break and enter the dwelling house of Robert Satiacum, 5822--15th Street East, wherein was kept property for use, sale or deposit, With intent to commit some crime therein; and 2. That such act occurred on or about the 4th day of July, 1972, in Pierce County, Washington;
Then you shall find the defendant, ROBERT JEWELL MONTAGUE, guilty of Burglary in the Second Degree as charged in Count I of the information.
(Emphasis added.)
Both defendants have assigned error to these latter five instructions on the basis that they do not adequately declare the law applicable to Montague's theory of 'reasonable belief' that he entered the dwelling with Satiacum's consent to take money therefrom and to destroy property therein.
We note preliminarily that Montague's two theories of defense are not available to Peterson. The jury had no indication from either Peterson or Montague, what Peterson's state of mind was when he entered the Satiacum residence or even that he did enter the residence. The jury was required to ascertain the fact of Peterson's entry into the residence and his state of mind at that time soley from the other evidence in the record. Montague never mentioned or referred to Peterson in any manner whatsoever. Accordingly, any possible error in the trial court's instructions, or refusal to instruct, as to either of Montague's theories of defense would not constitute prejudicial error as to Peterson.
The total impact of the court's instructions 11 through 15 is that in order to find Montague guilty of second degree burglary the jury must find (beyond a reasonable doubt): (1) that Satiacum's dwelling was in Pierce County; (2) that Montague broke and entered Satiacum's dwelling on July 4, 1972; (3) that when he broke and entered the house he did so with the specific intent to commit some crime therein; (4) that if he broke and entered the house unlawfully, then he is deemed to have broken and entered therein with intent to commit a crime therein unless satisfactorily explained to have been made without that specific intent; but the jury was also admonished that if Montague entered the house at Satiacum's direction, he did not commit the crime of burglary.
We find no error in the instructions given. Indeed, the four necessary elements merely declare the appropriate statutory law. 1 The only real issue is whether or not the trial court erred by not giving the proposed instruction as to the defendant's 'reasonable belief.'
The prosecution's brief seems to contend, in part, that the instructions, taken as a whole, did permit Montague's counsel satisfactorily to argue both his theories of defense to the...
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State v. Moreno
...burglary.¶19 Again, we have not directly analyzed whether this defense is available to any burglary charge, but in State v. Montague , 10 Wash. App. 911, 521 P.2d 64 (1974), the Court of Appeals considered a defendant's argument that the trial court should have allowed him to present a jury......
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State v. Lee
...may not indicate whether the defendants were represented by counsel at all stages of the crimianl proceedings. See State v. Montague, 10 Wash.App. 911, 921, 521 P.2d 64 (1974).4 Appellant relies on Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973), to support his position that the life sentence ......
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State of Washington v. Jones, 96-1-00094-4
...the jury on the law as to the theory of defense. State v. Grimes, 92 Wn. App. 973, 966 P.2d 394 (1998) (citing State v. Montague, 10 Wn. App. 911, 917, 521 P.2d 64, review denied, 84 Wn.2d 1004 (1974)). Jury instructions must not be misleading, and must properly inform the trier of fact of ......
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State v. Thornton
...was represented by counsel at all critical stages. Cf. State v. Thompson, 16 Wash.App. 883, 559 P.2d 1370 (1977); State v. Montague, 10 Wash.App. 911, 521 P.2d 64 (1974). Once the presence of counsel is established by the record, it is not necessary to further buttress initial admissibility......