State v. Pierce, 81-343

• Decision Date: 01 October 1982
• Docket Number: No. 81-343,81-343
• Citation: 651 P.2d 62,199 Mont. 57
• Parties: STATE v. PIERCE.
• Court: Montana Supreme Court

Page 62

651 P.2d 62

199 Mont. 57

STATE v. PIERCE.

No. 81-343.

Supreme Court of Montana.

Oct. 1, 1982.

Majority Opinion, see 647 P.2d 847.

SHEA, Justice, dissenting.

PART I. INTRODUCTION.

By affirming the assault convictions, the majority have tortured and mutilated the assault statutes; they have construed the essential mental state "knowingly" (which should be "purposely or knowingly") so that it means nothing more than conduct amounting to criminal negligence; they have ignored the jury instructions which defined "knowingly" in four ways; they have ignored fundamental appellate rules designed to assure the reliability and integrity of the trial process; they have ignored the fundamental rule which requires the court to instruct on a lesser-included offense; they have ignored the effect of the jury acquittal on the count II charge of aggravated assault where the jury found that defendant did not "knowingly" commit the act charged; they have failed to consider whether defendant was properly charged with assault "with a weapon" and whether he was properly convicted of negligent assault "with a weapon;" and finally, they have failed to consider the illegality of the trial court's sentence. This adds up to a manifest miscarriage of justice.

Although most of these issues were not raised by defense counsel, we nonetheless have a duty to discuss and decide these issues under the plain error doctrine. By failing to do so we have become an accomplice to the grievous errors committed in this case.

The assault statutes, in their present form, were not intended to apply to a drunken and reckless driving case which results in a collision and injuries to occupants of the other vehicle. However drunken and reckless the defendant's driving, the assault statutes were not intended to cover this kind of case. Ironically, had one or more of the occupants of the other vehicle been killed rather than injured, defendant would have been charged with negligent homicide, and, upon a conviction, would have been subject to a maximum 10 year prison sentence. But because the State has gotten away with charging him with aggravated assault, defendant has had a 20 year sentence imposed for the count I conviction. The 6 month consecutive prison sentence for the conviction on count II of the lesser-included negligent assault "with a weapon" has only added to the illegality of the entire proceedings.

I have no doubt that the legislature can create a crime to punish by a severe prison sentence those who by their criminal negligence (drunken and reckless driving in this case) abuse their driving privileges and injure or maim other users of the highway. A criminal negligence statute to that effect would be upheld just as it is now permissible to file a negligent homicide charge against a person who recklessly causes an accident which kills another person. But, as stated by the Arizona Supreme Court in State v. Balderrama (1964), 97 Ariz. 134, 397 P.2d 632, "criminal neglect can supply the place of the intent only where the legislative power has expressly so provided." The legislature has failed to enact this legislation in this state, and the defendant cannot be held responsible for that.

PART II. SUMMARY OF ISSUES REQUIRING THAT BOTH ASSAULT CONVICTIONS BE REVERSED AND THE CHARGES ORDERED DISMISSED.

Aside from the issues raised by defendant (and both the defendant's and the State's briefs are woefully inadequate), serious errors exist which require an appellate court to consider and decide issues not raised. This Court has the right and here the duty to consider and decide these issues even though they were neither raised in trial court nor on appeal. See Kudrna v. Comet Corporation (1977), 175 Mont. 29, 51, 572 P.2d 183, 195; Hallldorson v. Halldorson (1977), 175 Mont. 170, 173-174, 573 P.2d 169, 172. The plain error rule applies to evidentiary rulings as well as to pure matters of law. See Rule 103(d), Mont.R.Evid. I can think of no case since I have been on this Court that is more riddled with error not raised by counsel and is therefore deserving of an application of the plain error rule. It is especially compelling that we invoke that rule in this case because this is the first time that the assault statutes have been used to prosecute a drunk driving collision case which has resulted in injuries to other users of the highway. To hide our head in the sand here only compounds the injustice perpetrated on the defendant in the name of justice.

On Several Grounds the Count I Conviction of Aggravated Assault Must be Reversed and the Charge Ordered Dismissed:

It is true, as defense counsel contends, that the State failed to prove in count I that defendant "knowingly" committed the act charged--that is, the State failed to prove that defendant "knowingly" drove his car into the Francisco pickup. Beyond this issue, however, several grounds exist which require reversal of this conviction.

First, the majority has failed to consider whether the State could legally charge only that defendant "knowingly" committed the assault. The assault statute sets forth the mental state to be proved as "purposely or knowingly." Further, the majority has failed to discuss the mental state "knowingly" or "purposely or knowingly" in its relation to the statutory tests for causation--which must be met. The majority has ignored the statutory scheme setting forth the tests of causation in relation to the mental state which must be proved. This statutory scheme leads to the inescapable conclusion that causation was not proved and that the collision in this case, because of the facts, was not designed to fall within the clutches of the assault statutes. See part IIIA and B of this dissent.

Second, the majority has chosen one definition of "knowingly" of four given to the jury, but even in analyzing the evidence giving so-called life and meaning to this definition, they have landed short and wide of the mark. In concluding that defendant "knowingly" acted, the majority have astoundingly relied on defendant's intoxication, on defendant's flight after the collision, and on defendant's high speed and illegal passing maneuvers just before the collision. The majority has taken giant strides backwards in concluding that this evidence proved that defendant "knowingly" drove his car into the Francisco pickup. See part IV of this dissent.

Third, the majority opinion leaves the impression that the only definition or theory of "knowingly" given to the jury was that definition discussed in the majority opinion. In fact a total of four definitions of "knowingly" were given to the jury (instruction no. 10), and only a clairvoyant court could determine which definition the jury applied in reaching its verdict. Because most appellate courts recognize they are not endowed with such powers, they have adopted basic, axiomatic rules of appellate review to review convictions. These rules are designed to assure the reliability and integrity of the trial and fact-finding process. The majority have once again ignored these rules in their rush to affirm the count I aggravated assault conviction.

In order to uphold the verdict, each of the theories of "knowingly" given to the jury must have been proper in this case and each of the theories must have been supported by substantial evidence. If both of these requirements were not met, a reversal is required unless it can be stated beyond a reasonable doubt that the jury relied only on the definition chosen by the majority to uphold the conviction. No conscientious appellate court can make that declaration, however, and the judgment must be reversed because the jury may have relied on an erroneous theory of "knowingly" in reaching its verdict. See part V of this dissent.

Fourth, the evidence required that the trial court give a lesser-included assault instruction for count I, and the failure to give such instruction was reversible error. See part VI of this dissent.

Fifth, in ruling that the count I aggravated assault conviction is not inconsistent with the count II lesser-included negligent assault "with a weapon" conviction, the majority have ignored the vital fact that the jury found defendant not guilty of count II aggravated assault, and in doing so, found that he did not "knowingly" commit the act charged. Counts I and II arose out of the same act and necessarily the same mental state accompanied that act. The conviction of count I aggravated assault, including a determination that defendant "knowingly" committed the act charged, flies in the face of the count II acquittal which found that defendant did not "knowingly" commit the act charged. Logic and fairness require that the count I aggravated assault conviction be reversed. See part VII of this dissent.

The Count II Lesser-Included Negligent Assault "With a Weapon" Conviction Must Also Be Reversed:

Although the jury acquitted defendant of count II aggravated assault "with a weapon," I nonetheless discuss this charge because defendant should never have been charged with this offense and because the State will undoubtedly now be using this provision to charge assault in similar cases--a charge totally unjustified. See part VIIIA, B, C, and D, of this dissent.

In addition, although defense counsel failed to raise any issue with relation to the negligent assault "with a weapon" conviction, the conviction must nonetheless be reversed for it is not supportable under the law or facts.

First, section 45-2-103(1), (2), MCA, requires that the State prove defendant negligently caused the injuries and to prove that he negligently used a weapon. The jury was not so instructed and for this reason alone the conviction must be reversed. If this were the only error, perhaps a new trial would be the proper result.

Second, I find it difficult to understand how a defendant can be held responsible for using a weapon, the gist of the crime, if it is not proved he was aware he was...