State v. Pierce, 81-343
| Decision Date | 07 July 1982 |
| Docket Number | No. 81-343,81-343 |
| Citation | 199 Mont. 57,647 P.2d 847 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Carl PIERCE, Defendant and Appellant. |
| Court | Montana Supreme Court |
A. Michael Salvagni, Bozeman, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Donald E. White, County Atty., Bozeman, for plaintiff and respondent.
On May 13, 1981, a jury for the Eighteenth Judicial District Court, Gallatin County, found Carl Pierce guilty of one count of aggravated assault, a felony, and one count of misdemeanor assault. Pierce had previously pled guilty to another misdemeanor, failure to stop at the scene of an accident. The court issued a sentence and judgment June 8, 1981, sentencing defendant to: twenty years on one count of aggravated assault; one year to run concurrently, on failure to stop; and six months, to run consecutively, for misdemeanor assault. Defendant appeals. We affirm.
At approximately 2:00 P.M., March 7, 1981, defendant Carl Pierce left Dillon, Montana, and drove toward Gallatin Gateway to visit his wife. His nephew and a hitchhiker accompanied defendant as far as Bozeman. Defendant then proceeded alone, west on U. S. Highway 191, until becoming involved in a serious accident around 6:15 P.M. He abandoned his car and fled the scene of the accident.
Defendant was later apprehended in Country Lanes Bowling Alley and arrested for leaving the scene of an accident. He was taken to the Bozeman police station, where he agreed to submit to a breathalyzer test. The results of the test indicated that defendant's blood alcohol level was .16 percent. In Montana, an individual whose blood alcohol level is greater than .10 percent is presumed to be under the influence of alcohol in a criminal prosecution for driving under the influence of alcohol. See section 61-8-401(3)(c), MCA.
Defendant pled guilty March 9, 1981, in Gallatin County Justice Court, to driving under the influence of alcohol. On March 11, 1981, defendant participated in a taped interview with an investigator from the Gallatin County Attorney's Office, during which defendant discussed his activities the day of the accident. An information was then filed March 13, 1981, charging defendant with the following:
Defendant pled guilty to Count III and proceeded to trial on Counts I and II. At trial, several individuals testified that as they were travelling west on U. S. Highway 191 around 6:00 P.M., March 7, 1981, an older green car passed them on the right shoulder of the road, travelling at a high rate of speed. The car defendant was driving, and which was abandoned at the scene of the accident, was a green 1968 Mercury.
According to witnesses, the driver of the older green car attempted to similarly pass a 1979 Toyota pickup truck. The pickup was occupied by Shirley Francisco and four children. Mrs. Francisco and two of the children sitting in the back of the enclosed pickup testified that they saw the green car rapidly approach the rear of their pickup while on the right shoulder of the road and then felt the impact of the crash. All five passengers were thrown from the vehicle. Mrs. Francisco suffered a fractured right shoulder and a compound fracture of her left ankle. Kevin Schmidt, the other passenger in the cab of the pickup, received lacerations on his back and was dazed. The three girls sitting in the bed of the enclosed pickup were also injured. Rochelle Francisco was hospitalized for chest pains and dizziness, while Brenda Schmidt was hospitalized for back and neck pain.
Jeri Lyn Francisco suffered the most serious injuries. She was flown to Billings for emergency surgery to remove broken skull fragments from the back of her head and to stop the bleeding of lacerated brain tissue. Attending physicians testified that prior to completion of the surgery on Jeri Lyn, they had believed she was in serious danger of losing her life.
The investigating police officers testified that by conducting a vehicle license check, they learned that the owner of the Mercury automobile was Virginia Pierce. When Mrs. Pierce was contacted, she told the police that her husband, Carl Pierce, had been in possession of the car for approximately one month. Mrs. Pierce later contacted Bozeman police and told them her husband had called and requested she pick him up at the Country Lanes Bowling Alley. Two officers proceeded to the bowling alley, found defendant sipping his first drink at the bar, questioned him and arrested him for failure to stop at the scene of an accident.
The officers testified that Mr. Pierce initially denied being involved in the accident. Mr. Pierce told the officers that he had left his car in Sheridan, Montana, and had hitchhiked to Bozeman. He later admitted to being the driver of the 1968 Mercury at the time of the accident.
During the taped interview, Pierce admitted that he was intoxicated at the time of the accident and stated that he probably should not have been driving. He had consumed twelve beers between noon and the time of the accident.
He also stated that he did not recall passing any vehicle on the right shoulder of U. S. Highway 191. Defendant's version of the accident was that the brake lights of the Toyota came on as he was properly passing it, causing him to apply the brakes of his car and slide into the Toyota. He then fled the scene of the accident out of fear.
At the close of the trial, the jury found defendant guilty of aggravated assault for knowingly causing serious bodily injuries to Jeri Lyn Francisco and guilty of misdemeanor assault for negligently causing bodily injuries with a weapon to the others in the car. In his appeal of those convictions defendant presents three issues to this Court:
(1) Whether defendant's constitutional right against being placed in double jeopardy was violated when, as a result of the same transaction, defendant pled guilty in justice court to driving under the influence of alcohol and was later charged in District Court with aggravated assault?
(2) Whether there was sufficient evidence to prove defendant knowingly caused serious bodily injury to Jeri Lyn Francisco, so as to constitute an aggravated assault?
(3) Whether the convictions should be overturned as requiring two mutually exclusive mental states to exist simultaneously?
Both before and during trial, defendant made motions to dismiss the aggravated assault charges against him. He alleged that a charge of aggravated assault would violate his constitutional right against being placed in double jeopardy as he had already pled guilty to another charge arising from the same accident, driving under the influence of alcohol. We disagree with defendant's contention.
The applicable codification of defendant's constitutional right against being placed in double jeopardy is found in section 46-11-504(1):
Section 46-11-503(3)(c) defines conviction as including "a plea of guilty accepted by the court..." Therefore, section 46-11-504 may apply to defendant as his guilty plea is considered a conviction for purposes of that statute.
The prohibition against double...
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