State v. Sadowski

• Decision Date: 07 March 1991
• Docket Number: No. 90-065,90-065
• Citation: 247 Mont. 63,805 P.2d 537,48 St.Rep. 93
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Philip SADOWSKI, Defendant and Appellant.
• Court: Montana Supreme Court

Page 537

805 P.2d 537

247 Mont. 63

The STATE of Montana, Plaintiff and Respondent, v. Philip SADOWSKI, Defendant and Appellant.

No. 90-065.

Supreme Court of Montana.

Submitted on Briefs Oct. 26, 1990.

Decided Jan. 28, 1991.

Rehearing Denied March 7, 1991.

Philip F. Walsh, Lineberger & Walsh, Stephen D. Roberts, Bozeman, for defendant and appellant.

Marc Racicot, Atty. Gen., Patti Powell, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., Bozeman, for plaintiff and respondent.

McDONOUGH, Justice.

The defendant Philip Sadowski appeals the judgment and verdict of the Montana Eighteenth Judicial District Court, Gallatin County convicting him of the offense of deliberate homicide for the shooting of Robert Hare, pursuant to Sec. 45-5-102, MCA. The Court sentenced Sadowski to forty years in the Montana State Prison for the deliberate homicide conviction plus ten years consecutively for the use of a weapon and declared the defendant ineligible for parole for 17 years. We affirm.

Sadowski presents three issues for review on this appeal:

1) Did the District Court err in denying the defendant's motion in limine and admitting over the defendant's continuing objection evidence of uncharged prior misconduct by the defendant?

2) Was it plain reversible error for the prosecutor to allegedly comment upon and emphasize, as well as cross-examine the defendant concerning the defendant's post-arrest silence after the defendant had received his Miranda warnings?

3) Was it reversible error for the investigating police officers not to take into evidence allegedly crucial items that may have been weapons used by the victim that would support the defendant's affirmative defense of justifiable use of force?

The facts in this case, except those facts immediately surrounding the shooting of Robert Hare, are largely undisputed. The defendant Philip Sadowski, operated a furniture restoration and repair business called the Furniture Doctor in Gallatin County near Four Corners, approximately eight miles west of Bozeman. The business was located in a workshop which connected with his residence. On April 14, 1989, Sadowski and his cousin, Sid Warburton, who was visiting from California, delivered an antique backbar to some customers in Pray, Montana. Sadowski and Warburton returned to Four Corners and had dinner at the Korner Restaurant and then proceeded to the Korner Club Bar at about 8 p.m. where they played pool and drank beer until closing. During this time, Sadowski met Frank "Hawk" McKinnis and his girlfriend Lynn Bell. Sadowski did not know either McKinnis or Bell prior to striking up a conversation with them at the bar. McKinnis and Sadowski talked about woodworking. McKinnis stated that he didn't have access to good woodworking tools and Sadowski told him he had a full woodworking shop, and that they could stop by after closing to have a drink and look around Sadowski's shop.

Sadowski, Warburton, McKinnis, and Bell arrived at Sadowski's house at approximately 2:15 a.m. The deceased, Robert Hare, arrived by himself soon afterward. Sadowski had not met Hare prior to Hare knocking on the door and walking into the Furniture Doctor building. However, Bell introduced Hare as a friend, and Sadowski allowed him in.

Once in the shop, the five people drank and talked. Admittedly, everyone present was intoxicated. Sadowski and McKinnis conversed separately from the others as their attentions were focused primarily on woodworking and the designs that McKinnis was cutting from pieces of wood with Sadowski's band saw. Bell, Warburton, and Hare talked with one another on the other side of the shop.

At about 3:30 a.m. McKinnis asked Sadowski if he could see his stock of wood, which was located just outside the main room of the shop. While Sadowski and McKinnis looked at the wood, in the other room they heard Sadowski's cousin Warburton yelling, "They're hurting me!" Sadowski and McKinnis then went back into the shop and saw Warburton with Hare and Bell near the door to the tool room. Sadowski testified that he thought this incident was odd because he had never seen his cousin behave that way, but he did nothing. He testified that he was concerned but he passed the incident off, and returned to the other side of the shop when McKinnis called him back to where he was working.

According to Sadowski's testimony, McKinnis later asked Sadowski to go into his living quarters to get more beer. While Sadowski was in the living quarters, getting the beer, and was out of sight but within hearing distance of the people in the workshop area, he heard his cousin complain of being hurt again. Sadowski testified that he became concerned at this time that perhaps a robbery would take place by these strangers he had invited into his home. He testified that he felt that he needed to be prepared should something happen, so he went into his bedroom, got his revolver and placed it in his belt in the back of his pants.

At this point the testimony is in dispute. Sadowski testified that upon returning to the shop he saw his cousin and Lynn Bell kissing, announce that they were going to get some beer, and walk out of the shop into the apartment area. Sadowski testified that because McKinnis and Bell appeared to be a couple and McKinnis was turned at the band saw and hadn't seen what happened, Sadowski turned to Rob Hare and asked, "What's going on out there?" Sadowski testified that upon asking this, Hare became very animated, started swinging his hand around, and said "Well, you know what's going on out there. She's sort of jerking him around and this is how we get our power." Defendant testified that he was very frightened at Rob Hare's comment, wondering if they were planning a robbery or perhaps belonged to a cult. Sadowski testified that when he asked Rob Hare "What the hell do you mean by that?" Hare allegedly responded, "Well, that's just what we do."

Sadowski then testified that he pulled his gun out, held it in front of him without pointing it and said to Hare, "Look, I don't know what the hell's going on at this point, but I want you to...." and that he was going to tell everyone to leave.

Hare allegedly replied "Oh, you can't stop me with that," meaning Sadowski's gun. Sadowski claimed to have backed up, asking Hare to not come any closer, but Hare allegedly continued to approach him yelling, "You can't stop me!" Sadowski testified that he got no response from McKinnis when he asked him to stop Hare. Hare allegedly kept approaching Sadowski, raised his right hand up, had his left hand out in front of him, crouched, and moved quickly, looking as if he were going to hurl himself at Sadowski. Sadowski testified that when he felt he could retreat no more and that Hare would be upon him, he raised his gun up, aimed it at Hare's chest and shot him.

Hawk McKinnis's version of the shooting differs substantially. He testified that he turned off the band saw and turned around and saw Hare standing by the entrance to the shop ten to twelve feet from Sadowski. He testified that he heard defendant and Rob Hare in a low, regular, conversation, after which he heard defendant tell Rob Hare he was "tired of his bullshit" and then saw Sadowski level a pistol at and shoot Hare. He testified that Hare was standing in an upright position when shot. McKinnis testified that Sadowski then pointed the pistol at him and he told Sadowski that if he was going to shoot him, "he should do a good job of it or call the police." Sadowski telephoned the police and requested an ambulance immediately after the shooting. When officers arrived at the scene, Sadowski identified himself as the one who shot Hare, and officers then placed him under arrest and read him his Miranda rights. Rob Hare was taken to the hospital where he was pronounced dead.

At trial, Sadowski acknowledged that he had purposely or knowingly caused the death of Rob Hare and asserted as his sole defense that he was justified in shooting Hare because Hare was attacking him. Prior to trial, the state gave notice of its intention to "introduce at trial evidence of other acts to show intent, knowledge, opportunity and absence of mistake or accident" pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The trial court denied Sadowski's motion in limine on prior acts evidence.

The evidence presented by both sides in the four day trial was extensive. Forensic scientists testified that the bullet traveled downward through Rob Hare's body at a thirty degree angle and that this was inconsistent with the victim being in an upright position at the time of the shooting. Hawk McKinnis' credibility was placed at issue throughout the trial, and as the only eyewitness, his testimony contradicted Sadowski's. Evidence of the victim's character for aggressiveness while intoxicated was introduced by the defense and rebutted with evidence by the prosecution. Thirty-one witnesses in all testified. Sadowski's cousin, Sid Warburton, although subpoenaed and listed as a witness by both the defense and the prosecution, did not testify. The jurors were allowed a view of the crime scene. After deliberation, the jury found Sadowski guilty of the offense of deliberate homicide, to which Sadowski now appeals. More specific facts will be developed in the discussion of Sadowski's issues on appeal as needed.

I.

As his first issue, Sadowski alleges that the District Court erred in admitting evidence of a past incident of misconduct where Sadowski admittedly pointed a gun at a deputy sheriff two years and eight months prior to the homicide. Our standard of review relating to such evidentiary rulings is to determine whether in admitting the evidence the District Court abused its discretion. Steer, Inc. v. Dept. of Revenue Mont.1990), 803 P.2d 601, 603. The District Court has broad discretion to determine whether or not evidence is relevant. Absent a showing that the District Court has abused its discretion, this...