State v. Ottwell

• Decision Date: 14 September 1989
• Docket Number: No. 89-130,89-130
• Citation: 239 Mont. 150,46 St.Rep. 1580,779 P.2d 500
• Parties: STATE of Montana, Plaintiff and Respondent, v. Toni Lea OTTWELL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 500

779 P.2d 500

239 Mont. 150

STATE of Montana, Plaintiff and Respondent, v. Toni Lea OTTWELL, Defendant and Appellant.

No. 89-130.

Supreme Court of Montana.

Submitted on Briefs July 7, 1989.

Decided Sept. 14, 1989.

Michael Donahoe, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Mike McGrath, Co. Atty., Carolyn A. Clemens, Deputy Co. Atty., Helena, for plaintiff and respondent.

GULBRANDSON, Justice.

The jury empaneled in the District Court for the First Judicial District, Lewis and Clark County, found Toni Lea Ottwell, the defendant, guilty of felony assault pursuant to Sec. 45-5-202(2)(b), MCA. The District Court sentenced the defendant to ten years at the Montana State Prison and suspended the sentence in its entirety subject to conditions. Defendant appeals. We affirm.

The issues raised on appeal are:

1. Whether the exclusionary rule bars admission of evidence of a person's criminal conduct which occurred in response to a Fourth Amendment violation.

2. Whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to Sec. 45-5-202(2)(b), MCA.

3. Whether the District Court erred by instructing the jury as to the definition of the term "knowingly," as set forth in Sec. 45-2-101(33), MCA, when a defendant is charged under Sec. 45-5-202, MCA, with felony assault.

4. Whether the defendant was denied a fair trial under the doctrine of "cumulative error."

In December, 1987, Toni Lea Ottwell, the defendant, was a resident at the Mountain View School, a girls' correctional facility located north of Helena, Montana. Ottwell and four other residents of the school escaped from the facility on December 24, 1987. Two of the girls were apprehended the following day in Helena. The remaining escapees, including Ottwell, obtained a .44 magnum caliber handgun from a residence in Clancy, Montana, returned to Helena and rented a room at a local hotel.

On December 26, 1987, two members of the Mountain View School staff, William Unger, Superintendent, and Don Thompson Social Worker, discovered that the girls were at the hotel. Unger and Thompson went to the hotel, confirmed with the hotel manager that the girls were in the hotel, and were given a key to the girls' room by the manager. After Unger knocked on the door of the girls' room and identified Ottwell's voice, he used the key to open the door and both men entered the room. Unger told the girls to get ready, that he was taking them back with him. Shortly thereafter Ottwell picked up the loaded handgun and pointed it at the two men. She told Thompson to close the door and stated that the gun was loaded and that she wasn't afraid to use it. Thompson refused to close the door but after a few minutes of trying to persuade Ottwell to put down the gun, Unger and Thompson left the room. Ottwell and the other two girls escaped through the hotel window and were apprehended by the police later that evening.

Ottwell, a minor, was charged as an adult with the offense of felony assault by an Information filed in the District Court for the First Judicial District, Lewis and Clark County. A jury trial commenced on May 31, 1988 and on June 1, 1988, the jury returned a verdict of guilty. On October 25, 1988, final judgment and sentence was entered. Ottwell was sentenced to ten years at the Montana State Prison. The District Court suspended Ottwell's sentence in its entirety subject to conditions. Ottwell appeals.

The first issue raised on appeal is whether the exclusionary rule bars admission of evidence of a person's criminal conduct which occurred in response to a Fourth Amendment violation.

Ottwell argues that the entry of her hotel room by Unger and Thompson was unconstitutional and that evidence of all events subsequent thereto, including her felonious assault, should have been suppressed. The facts are undisputed that Unger and Thompson, state employees from the girls' correctional facility, entered Ottwell's hotel room without permission or without a warrant. Nonetheless, assuming arguendo that an illegal entry occurred, we uphold the District Court's decision to deny Ottwell's motion to suppress evidence of her criminal conduct which occurred in response to a Fourth Amendment violation.

The Fourth Amendment of the United States Constitution and Article II, Sec. 11 of the Montana Constitution affords all persons the freedom from unreasonable governmental searches and seizures. Thus, absent exigent circumstances, police officers and other government officials must obtain a search warrant based upon probable cause before entering a home or making an arrest. Payton v. New York (1980), 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653; State v. O'Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64. The exclusionary rule, which bars evidence obtained as a result of an unconstitutional search or seizure, is the primary vehicle which helps to ensure protection from an unreasonable governmental search or seizure. Wong Sun v. United States (1963), 371 U.S. 471, 484-85, 83 S.Ct. 407, 415-16, 9 L.Ed.2d 441, 453. However, courts have refused to extend the exclusionary rule to suppress evidence of a person's independent criminal conduct which occurred in response to an unconstitutional search or seizure. See, e.g., People v. Klimek (1981), 101 Ill.App.3d 1, 56 Ill.Dec. 403, 427 N.E.2d 598; State v. Boilard (Me.1985), 488 A.2d 1380; State v. Burger (1982), 55 Or.App. 712, 639 P.2d 706; State v. Kittleson (Minn.1981), 305 N.W.2d 787; Commonwealth v. Saia (1977), 372 Mass. 53, 360 N.E.2d 329. Likewise, under the facts of this case, we refuse to extend the exclusionary rule to suppress evidence of a person's assaultive conduct towards a state employee who committed a Fourth Amendment violation. Such evidence does not constitute the "fruit of the poisonous tree" and thus the purpose of the exclusionary rule--to protect a person from unreasonable searches or seizures through suppression of evidence--would not be accomplished by its application in such a situation. On the contrary, to allow a person whose Fourth Amendment rights were violated to respond with unlimited violence towards the violator and then to grant the person immunity via the exclusionary rule would create intolerable results. Such a ruling would allow, and possibly even encourage, more violence. We therefore uphold the District Court's decision to deny Ottwell's motion to suppress evidence of Ottwell's independent criminal conduct which occurred as a response to a Fourth Amendment violation.

The second issue raised on appeal is whether a defendant who knowingly or purposely causes reasonable apprehension of serious bodily injury by use of a weapon is properly charged with felony assault pursuant to Sec. 45-5-202(2)(b), MCA.

Ottwell argues that the District Court erred by not granting her motion to dismiss on the ground that the Information, by its terms, only alleged misdemeanor assault as defined in Sec. 45-5-201(1)(d), MCA. This statute provides in pertinent part that

(1) A person commits the offense of assault if he:

. . . . .

(d) purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another ...

Specifically, Ottwell attempts to argue that the language of this misdemeanor statute--"shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another"--is a conclusive presumption that prevents the State from charging a defendant with felony assault once the State proves that the defendant pointed a gun towards another. We disagree.

Ottwell fails to acknowledge the difference in proof between the misdemeanor assault statute, Sec. 45-5-201, MCA, and the felony assault statute, Sec. 45-5-202, MCA. The felony assault statute provides in pertinent part that

(2) A person commits the offense of felony assault if he purposely or knowingly causes:

. . . . .

(b) reasonable apprehension of serious bodily injury in another by use of a weapon ... (Emphasis added.)

Section 45-5-202(2)(b), MCA. The felony assault statute addresses the reasonable apprehension of serious bodily injury and the misdemeanor assault statute addresses the reasonable apprehension of bodily injury. The statutory definitions of "serious bodily injury" and "bodily injury" are drastically different and thus require a different degree of proof. See, Sec. 45-2-101(5) and (59), MCA. Merely because the misdemeanor statute contains a presumption regarding a person who knowingly points a firearm at or in the direction of another, does not make the statute the exclusive vehicle for prosecution when such a conduct occurs. State v. Crabb (Mont.1988), 756 P.2d 1120, 1124, 45 St.Rep. 966, 971. A county attorney has the discretion to charge a defendant under either Sec. 45-5-201, MCA or Sec. 45-5-202, MCA, and a subsequent conviction will stand if the evidence supports the conviction.

On March 29, 1988, the County Attorney for Lewis and Clark County filed an Information alleging that Ottwell "purposely or knowingly caused reasonable apprehension of serious bodily injury in Bill Unger and Don Thompson ... by pointing a gun at them and threatening to shoot them ..." The facts of this case supports the proposition that Ottwell knowingly or purposely used a weapon to cause reasonable apprehension of serious bodily injury. The District Court therefore properly denied Ottwell's motion to dismiss.

The third issue raised on appeal is whether the District Court erred by instructing the jury as to the complete definition of the term "knowingly," as set forth in Sec. 45-2-101(33), MCA, when a defendant is...