State v. Radi

• Decision Date: 03 April 1978
• Docket Number: No. 13144,13144
• Citation: 578 P.2d 1169,176 Mont. 451,35 St.Rep. 489
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1169

578 P.2d 1169

176 Mont. 451

STATE of Montana, Plaintiff and Respondent, v. Gary Eugene RADI, Defendant and Appellant.

No. 13144.

Supreme Court of Montana.

Submitted June 3, 1977.

Decided April 3, 1978.

Conrad B. Fredricks and Richard W. Josephson, Conrad B. Fredricks argued, Big Timber, for defendant and appellant.

Michael T. Greely, Atty. Gen., Helena, J. Mayo Ashley argued, Asst. Atty. Gen., Helena, Kenneth R. Olson, County Atty., Big Timber, for plaintiff and respondent.

SHEA, Justice.

Defendant, Gary Eugene Radi, appeals from a judgment in Sweet Grass County District Court adjudging him guilty of burglary and from an order sentencing him to 50 years in the Montana state prison as a persistent felony offender.

On September 7, 1974 the Ullman Lumber Company in Big Timber, Montana, was burglarized. Missing from the office was approximately $60 to $80 in cash and $1,100 in checks which were restrictively endorsed. The cash was never recovered, but most of the checks were recovered. Defendant was never directly connected to stolen cash or checks.

Defendant and John Michael Miner were arrested and charged with burglary and theft. In a separate trial Miner was convicted of burglary, sentenced to 10 years in prison, and this Court affirmed his conviction. (See, State v. Miner (1976), 169 Mont. 260, 546 P.2d 252.) Defendant was tried after Miner's conviction and while Miner's conviction was pending on appeal. Defendant's defense was alibi and that of seeking to establish that Miner was the sole perpetrator of the crime. He also attacked the credibility of one witness, Tim Rostad, who placed defendant inside the burglarized office building on the evening involved.

Tim Rostad is related to the owners of Ullman Lumber Company and is well acquainted with the lumber yard and the internal surroundings of the office building. He also knows all the lumber company employees. On September 7, 1974, at approximately 11:15 p. m., Tim Rostad was talking with three occupants of a car parked across the street from the Ullman Lumber Company. Rostad was kneeling on the driver's side of the car talking to Alan Petaja, Lila Fuller and Debbie Braley. The office building was directly across the street and well lighted inside. Rostad noticed a stranger inside the office building (later identified as defendant Radi) and told the others. A few seconds later Petaja and Fuller looked and saw an individual inside the office building. Witness Fuller later identified this person as Miner, and Petaja was not certain, although it appears that he also saw Miner. No witness saw two persons simultaneously inside the office building. Rostad then left to call the police. While he was gone Fuller and Petaja saw two shadowy figures in the lumber yard, and Petaja saw them climb over the fence and disappear. Neither witness could identify the individuals in the lumber yard.

Ten or fifteen minutes after Rostad made the phone call, he again saw the man he had seen inside the office building. The man had stopped him to ask for change for the pay telephone. A few minutes later, Officer Ed Brannin, responding to Rostad's telephone call, stopped John Miner adjacent to the lumber yard and obtained identification, questioned him briefly, and let him go. Brannin continued patrolling and a few minutes later came upon Rostad who directed the officer to defendant Radi standing inside a telephone booth. Officer Brannin drove over the phone booth accompanied by Rostad. After defendant Radi made his call, Officer Brannin asked him to get in the car. The dome light was on in the car, and Rostad again had a clear view of Radi. At trial Rostad positively identified defendant as the man he had seen inside the lumber yard office building, as the man who had asked him for change, and as the man he had seen in the telephone booth and in the patrol car.

Officer Brannin identified Radi as the same person he had seen in the telephone booth and talked to inside the patrol car. He had obtained Radi's driver's license identification and also the license number of the car Radi was driving. A license number check later revealed that the automobile was registered to Radi. During cross-examination of Officer Brannin, the officer's report of the crime investigation was admitted in evidence. Among other matters, it contained the information that Brannin had checked Radi's criminal background and determined that Radi had previously been convicted of burglary and was then out on bail.

In addition to Rostad and Officer Brannin identifying Radi in close proximity to the scene of the crime, witnesses Fuller and Petaja testified they had seen Radi walking approximately a block away from the lumber yard and a few minutes later saw Radi again while Officer Brannin was obtaining identification from him after he had exited the telephone booth. Investigation at the lumber yard offices revealed that entry to the building had been gained by breaking a lock and forcing open a sliding door. Between $60 and $80 in cash and approximately $1,100 in checks was missing. Most of the checks were recovered and admitted in evidence through one of the owners of the lumber company.

Although defendant did not testify at his trial, he sought to establish through other witnesses that he was in Billings on the night of the crime and that from the time he was last seen in Billings, it would have been impossible for him to travel to Big Timber by 11:00 p. m. Through two other witnesses, Radi also sought to establish that John Miner was seen earlier that day in Livingston, Montana, some 35 miles west of Big Timber, and therefore that Miner was well within striking distance of the scene of the crime.

Defendant's employer in Billings, Gaylin Garrison, testified defendant worked with him at Garrison's gas station on September 7, 1974 until approximately 9:40 p. m. Cross-examination revealed that Garrison also knew and employed John Miner and that Miner and Radi often worked together at the gas station. Karen Radi, defendant's wife, testified defendant arrived home in Billings on September 7, 1974 just a few minutes before 10:00 p. m. She testified Radi left home at approximately 10:15 p. m., pinpointing the time by stating that she was listening to the 10 o'clock news when he left. The thrust of this testimony was to demonstrate that it was impossible for Radi to travel to Big Timber, some 85 miles away, in time to burglarize Ullman's Lumber Company at 11:00 p. m.

To point the finger at Miner as the sole perpetrator of the crime, defendant called two young women, Barbara and Mary Burns, who helped their father operate the Wrangler Bar in Livingston. Barbara Burns testified that on September 7, 1974, she saw John Miner in the bar at approximately 7:00 p. m. Someone was with him, but she could not say it was defendant Radi. Cross-examination revealed that earlier she had given a deposition and testified that the first name of the person with Miner was Gary. She also admitted that when shown a picture of one identified as Gary Radi, she had identified the person in the picture as having been with John Miner.

Mary Burns testified she saw Miner in the Wrangler Bar at 3:00 or 4:00 p. m., on September 7, 1974. He was not there when she left at 7:00 p. m., but he was there when she came back sometime between 9:00 and 10:00 p. m. and appeared to be drunk. At that time, she did not see defendant Radi with him. Cross-examination revealed she saw Miner with defendant Radi in the Wrangler Bar in the early morning hours of September 8, 1974, between 1:00 and 2:00 a. m. This was three or four hours after the burglary in Big Timber.

As the last item of his defense, defendant introduced in evidence the certified record of Miner's conviction for the same offense.

Defendant raises many issues on appeal which are briefly summarized as follows: He contends the trial court improperly denied a challenge for cause to a member of the jury panel who was a county commissioner and also a part time deputy sheriff; he contends that witness Tim Rostad was improperly allowed to testify after he violated an order excluding witnesses from the courtroom; he contends the testimony of the key witness, Tim Rostad, was "inherently incredible"; he contends the trial court improperly refused an instruction for the lesser included offense of criminal trespassing; he contends he was improperly charged with theft and certain instructions pertaining to the theft charge were in error; he contends that instructions erroneously explained the statutory language of "purpose" or "knowledge"; he contends the jury should have been given a definition of illegal trespass along with the definition of unlawful entry or unlawful remaining in an occupied structure; he contends that two instructions relating to the definition and elements of burglary were repetitive; and finally, he attacks the persistent felony offender statute on several grounds.

During jury selection a Sweet Grass County commissioner, P. R. Esp, who was also a member of the sheriff's posse of that county, was on the jury panel. Defense counsel challenged Esp for cause but failed to state the grounds of his challenge. The trial court denied the challenge. Defendant later excused Commissioner Esp by using one of his peremptory challenges.

Defendant argues an attorney-client relationship existed between the county attorney and the county commissioner. He claims Esp, as a county commissioner, is a client of the county attorney, and thus a challenge for cause should be allowed by statute. He also argues that a deputy sheriff automatically has a state of mind which would disqualify him from being an impartial juror in a criminal case.

The statute does not permit an automatic challenge for cause solely for the reason that a prospective juror in a criminal case is also a county officer. Section 95-1909(d)(2), R.C.M.1947, provides in pertinent part:

"A challenge for cause may be...