State v. Poncelet

• Decision Date: 24 April 1980
• Docket Number: No. 14395,14395
• Citation: 610 P.2d 698,37 St.Rep. 760,187 Mont. 528
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Nick A. PONCELET, Defendant and Appellant.
• Court: Montana Supreme Court

Page 698

610 P.2d 698

187 Mont. 528

The STATE of Montana, Plaintiff and Respondent, v. Nick A. PONCELET, Defendant and Appellant.

No. 14395.

Supreme Court of Montana.

Submitted Jan. 14, 1980.

Decided April 24, 1980.

Jackson & Kelly, Gregory Jackson, argued, and Douglas Kelly, argued, Helena, for defendant and appellant.

Ann Smoyer, argued, Helena, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from a judgment entered in the District Court of the First Judicial District, in and for the County of Lewis and Clark, the Honorable Gordon R. Bennett presiding.

Defendant is a resident of Whitefish, Montana. He has been employed by Teleprompter, Inc., for the past fifteen years working as a microwave engineer. In October 1976, defendant was informed by the Montana Department of Revenue that the State had not received income tax returns from him for the years 1973, 1974, 1975, and 1976. In those years, the Department had received information indicating that defendant had earned the following incomes: 1973 $10,400.00; 1974 $11,017.50; 1975 $11,020.80; 1976 $10,976.56. Enclosed with the Department's letter to defendant were detailed income tax forms and instructions. Defendant responded to the letter by requesting copies of Montana code sections regarding the collection and payment of taxes and the Montana Constitution. The Department, in turn, responded to defendant's request by indicating that certain copying fees had to be enclosed for the copying of the requested materials. Defendant again wrote a letter to the Department repeating his request. On November 21, 1976, five days after defendant's second letter, defendant mailed incomplete tax returns for the years 1973, 1974, and 1975 to the Department with an accompanying letter. The letter stated:

"I have taken the Fifth Amendment stand on my Federal Tax Returns and since the Montana Department of Revenue and the Federal Government work hand in hand I cannot give you any information without you passing it on to the I.R.S. Therefore, I am forced to do the same with the Montana Department of Revenue, because any information that may tend to incriminate me that is given to you will be passed on to the I.R.S. and may incriminate me through a third party."

In the same letter, defendant requested immunity from prosecution and added that, "if you do not agree with me and should decide to prosecute me, I will make a good faith challenge in a court of law before a jury of my peers." Defendant also asked the State to schedule a conference to discuss his taxes.

Defendant filed an improper tax return on August 16, 1977, for the calendar year 1976.

On August 3, 1977, defendant was charged with four counts of "intentionally failing to make or render a return or to supply information or both" under section 84-4924(3) and (4), R.C.M.1947, now section 15-30-321(3) and (4), MCA. A jury trial began on February 21, 1978, and lasted three days. At the end of the trial, the jury deliberated and returned a verdict of guilty on all four counts. Defendant moved for a new trial, but the motion was denied. On April 19, 1978, the District Court entered judgment of conviction, and defendant now appeals.

Twelve issues are raised for our consideration upon appeal. We find, however, that it is only necessary to discuss eleven of the issues because of the disposition of this case. The issues raised by defendant are:

1. Whether the District Court erred in instructing the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts."

2. Whether prosecution for the charges contained in the Information was barred by the statute of limitations.

3. Whether the District Court erred in failing to admit defendant's withholding statement.

4. Whether the prosecuting attorneys were properly appointed special deputy county attorneys.

5. Whether the District Court erred in denying defendant's motion for substitution of judge.

6. Whether the District Court erred in limiting defendant's voir dire examination of the jury.

7. Whether the District Court erred in excluding the testimony of William Koerner as an expert witness for defendant.

8. Whether the District Court erred in denying defendant's motion for a change of venue.

9. Whether defendant's assertion of his Fifth Amendment privilege was a defense to the charges contained in the information.

10. Whether the District Court erred in denying defendant's instructions.

11. Whether defendant, proceeding pro se, is entitled to have rules of law and procedure applied less strictly against him.

12. Whether the evidence presented clearly preponderated against the findings of the jury.

At the outset, it is important to clear up any confusion that may exist with regard to the charges brought by the State in this case. Here, prosecution was commenced by the State against defendant for failure to file an income tax return or supply information, or both. The Information states that defendant is charged with four counts of "intentionally failing to make or render a return or to supply information or both." The prosecution was not commenced for any failure to pay taxes. What the prosecution stems from, rather, is the filing of an incomplete or improper return. Defendant here submitted signed returns with asterisks inserted on several lines, accompanied by a blanket assertion of his Fifth Amendment privilege. According to well-established legal precedent, returns which merely contain an individual's social security number, name, and signature and which are accompanied by a blanket Fifth Amendment assertion of a privilege are not properly filed returns as provided by law. See United States v. Porth (10th Cir. 1970), 426 F.2d 519, cert. denied 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970); United States v. Jordan (7th Cir. 1975), 508 F.2d 750, cert. denied 423 U.S. 842, 96 S.Ct. 76, 46 L.Ed.2d 62 (1976); United States v. Pryor (8th Cir. 1978), 574 F.2d 440. This case, then, concerns the failure to file a proper return.

As his first issue, defendant contends that the District Court erred in instructing the jury that "the law presumes that a person intends the ordinary consequences of his voluntary acts." This instruction, commonly referred to as the "Sandstrom instruction," has been considered by this Court in several recent cases. The United States Supreme Court declared it to be unconstitutional because it has, in the minds of reasonable jurors, conclusive or persuasion-shifting effect. Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.

The State contends that we should not consider defendant's first issue because defendant did not object to the giving of the challenged instruction at trial. The State submits that the issue cannot now be raised for the first time on appeal. Although the State's point is well taken, we note that an appellate court may, in some circumstances, raise plain error upon appeal. We find that the effect of the Sandstrom instruction deserves consideration, especially because defendant appeared pro se in this matter.

The test for determining error in instructions similar or identical to those involved in Sandstrom was enunciated by the United States Supreme Court as analyzing the "way in which a reasonable juror could have interpreted the instruction." This, of course, involves assessing the impact of the challenged instruction in the context of other instructions given in the case. Several instructions were given in this case with respect to intent and the proof thereof. Instruction No. 11 indicated that intent was a necessary element of the offense to be proven by the State beyond a reasonable doubt. Instruction No. 1 stated that defendant was afforded a presumption of innocence, and Instruction No. 2 required that the State prove every element of the offense beyond a reasonable doubt. Instruction No. 7 was identical to the wording of the so-called "Sandstrom instruction" and afforded the State a presumption of intent. "Presumption" was defined in Instruction No. 3, which stated:

"Instruction No. 3 : A presumption is a deduction which the law expressly directs to be made from particular facts. Unless declared by law to be conclusive, it may be controverted by other evidence, direct or circumstantial, but unless so controverted the jury is bound to find in accordance with the presumption.

"In this regard, you are reminded in a criminal case, the defendant is presumed innocent until the contrary is proven beyond a reasonable doubt. This presumption carries the force of law and can only be controverted by evidence which leaves the minds of jurors in that condition that they can say that they feel an abiding conviction, to a moral certainty, of the truth of the charge."

Instruction Nos. 9 and 10 also permitted a finding of intent through inference:

"Instruction No. 9 : The intent or intention is manifested by the circumstances connected with the offense, and the sound mind and discretion of the accused. All persons are of sound mind who are neither idiots, nor lunatics, nor affected with insanity. The intent need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence and warranting such inference beyond a reasonable doubt.

"Instruction No. 10 : The element of intent in every contested case must necessarily be determined from facts and circumstances of the particular case this for the reason that criminal intent, being a state of mind, is rarely susceptible of direct or positive proof and there must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence."

Analyzing these instructions in the way or ways a reasonable juror could have interpreted them, we believe two possible interpretations might have been reached one permissible and the other impermissible.

On one hand, a reasonable juror could have understood the instructions...