State v. Schleining
| Decision Date | 23 June 1965 |
| Docket Number | No. 10766,10766 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. LeRoy John SCHLEINING, Defendant and Appellant. |
| Court | Montana Supreme Court |
William G. Mouat (argued), Billings, for defendant and appellant.
Forrest H. Anderson, Helena, Donald A. Douglas (argued), Helena, Donald J. Beighle (argued), Deer Lodge, G. Page Wellcome, Thomas I. Sabo, Bozeman, for plaintiff and respondent.
This is an appeal from a conviction of the crime of assault in the second degree after having plead 'true' to the charge of a prior conviction. Trial was held in the eighteenth judicial district before the Honorable W. W. Lessley, after a motion for a change of place of trial had been granted by the district court of Powell County.
During the month of April 1962, the appellant was serving a sentence in the State Prison at Deer Lodge, Montana. He was housed in Rothe Hall located several miles outside the main prison. This is the newest maximum security building in the prison complex in which some 240 inmates are housed, 60 to a wing. The inmates of Rothe Hall are classified minimum one, a man who stays at the compound at all times; minimum two is an inmate that under supervision can go outside the steel gate but must be under supervision at all times; and minimum three is a trustee who can go outside the gate unattended. The appellant was on April 28, 1962, a minimum two inmate.
On the evening of April 28, 1962, one of the guards, Frank Marron, was assaulted by several prisoners. He suffered multiple wounds of the head, numerous bruises and contusions of the body, arms and legs, and because of the blows to the head lost the hearing in one ear. The testimony is clear that the blows that injured Mr. Marron were delivered by two convicts, Sullivan and Walker. The question presented by this appeal is whether the appellant was a participant in a plan to break out of Rothe Hall, which resulted in the assault on Officer Marron.
Two entirely different stories of what happened April 28th were presented to the jury. One, the testimony of the guards, including Mr. Marron, and the other by the inmates Sullivan, Walker, Erickson and the appellant.
The State's case was presented through the testimony of three guards, Marron, Bogut and Ebel and the testimony of two inmates Sullivan and Fowler. According to the guards' testimony all the inmates were to be in bed by 10:00 P.M. with the exception of a clean-up crew and the kitchen crew. The prison rules provided that after 10:00 P.M. there was to be no movement of inmates between wings or floors, but that on the night of the 28th the appellant was up and around after 10:00 complaining that he was having trouble with a leg, and he was given an ointment to rub on it. In addition, Sullivan was up with appellant, helping him to rub the ointment on his leg.
The guards learned shortly after the lights went out that there was to be trouble that night and Sergeant Bogut called the main prison officers to get help in as much as there were only three unarmed guards locked up with some 220 inmates. Mr. Marron testified that just before being assaulted that in addition to the appellant and Sullivan being up and dressed, inmates Walker and Erickson were up and in the vicinity of the men's room. Too, that appellant went downstairs without his permission and contra to the rules. At this time, before being informed by Sergeant Bogut that trouble was brewing, Mr. Marron testified that he 'felt something was going to happen', and when he was relieved from his post to go downstairs for coffee he told Bogut, who relieved him, of his feeling. After getting coffee and returning to his duty area, Officer Marron was assaulted by Sullivan, who hit him six or seven times with an iron bar. Sullivan then ran to the stairs leading downstairs and Officer Marron called for help. His testimony as to what happened next was:
'Well, I looked up and inmates Walker and Erickson were on one side of me and inmate Schleining [appellant now] was on the other side.
'Q. What occurred when you looked up and observed these individuals gathered around you? A. Well, I was still screaming for help and inmate Walker picked up a folding chair off the table and started to hit me with it.
'Q. And what position did you occupy at that time? A. I was lying on the floor.
'Q. Were you able to defend yourself? A. I got my arms over my head. * * *
'Q. How many times were you hit with this chair? A. Oh, I'd say at least six, it could be more, he swung quite a few times. * * *
'Q. What occurred at this point? A. I looked up at them and I said, 'There is no use beating me any further, I have had it, there is nothing I can do to stop you.'
'Q. What next occurred? A. And then, inmate Schleining told me to roll over on my belly and he said, 'I am going to tie your hands behind your back.' I said, 'Not this old house, I am not getting on my belly,' and he told me again to roll over on my belly, that he was going to tie my hands on my back and I said 'Not me, I am not getting on my belly,' and he told me again to get on my belly and then I started to sit up and he said, 'Get back on your belly,' he says, 'I am going to tie your hands behind your back.' * * *
'Q. What occurred after this? A. Then, inmate Schleining got may left hand and he had a long piece of cloth in his hand, a strip of it, an inch or so, and he wrapped it around this hand once and then he tied a knot in it and then he reached behind me and he got this hand and he wrapped it once and started to tie a knot in it. * * *
'Q. What happened after he tied you, would you demonstrate? A. He pulled this hand behind me and then he reached and got his hand and pulled it back and started to tie that hand.
'Q. What occurred at that point? A. Right at that moment inmates Walker and Erickson just turned and started for Dorm Four and inmate Schleining says, 'You are hurt, I am going to help you.' * * *
Concerning the events testified to by Marron the appellant vigorously denied having anything to do with the assault or that he had tried to tie up Marron. He testified that he was using the rest room just off the recreation room, where Marron was assaulted, and that he heard an outcry and a thud as though something heavy had dropped and that when he went to the door he could see a man lying on the floor calling for help. He said he could see that he had a bloody head so he ran to his bunk and got a towel and went to Officer Marron's aid. His version of what occurred is as follows:
'A. I went directly to, went directly to what I now know is Mr. Marron and began to swab his head to see how badly he was injured because he was very obviously injured.
'Q. Was there any conversation between you and Mr. Marron? A. I told him, 'lie still, I am here to help you, and not to hurt you.'
* * *
The appellant testified that Officer Ebel saw him helping Officer Marron, but would not come and help him. He did not mention either Walker or Erickson being in the room at any time while he was attending Marron. He denies ever trying to tie him up. According to the appellant he had to go into the dormitory and get inmates Fowler and Ameline to help him carry Marron downstairs.
Officer Ebel testified that when he got upstairs to answer Marron's call for help that two unknown men ran into Dorm Four and that he stopped appellant and asked him where the officer was and that appellant said 'I don't know, I haven't seen him.'
The State also introduced evidence that during the evening of the 28th, Walker, Erickson, Sullivan and appellant were seen together talking just a short time before the lights were to go off, and that these were the inmates who were up and moving around for one reason or another after the lights went off.
The testimony of inmate Sullivan revealed that there was some plan afoot to break out that night. His testimony concerning what happened was as follows:
'Q. Mr. Sullivan, do you recall the events previous to the assault on Officer Marron? A. Yes.
'Q. Would you state in your own words, what occurred from approximately nine-thirty on that evening? A. I was lying on my bed at nine-thirty reading a book and I suppose about a quarter to ten or fifteen minutes before the lights are out, Jerry Walker came up and tapped me on the foot and asked me to--you know he wanted to talk to me.
'Mr. Mouat--Would you speak up, it is hard for me to hear. A. He wanted to talk to me, so I went over there and he says, 'We are going to escape tonight.'
* * *
* * *
Certainly, such testimony by one of the inmates who committed the first attack on...
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State v. McKenzie
...State v. Totterdell, (1959), 135 Mont. 56, 336 P.2d 696. The defendant must demonstrate prejudice from the record. State v. Schleining, (1965), 146 Mont. 1, 403 P.2d 625. Defendant has not demonstrated he was prejudiced by the recordings of the closing argument. His right to a fair trial wa......
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State v. McKenzie
...State v. Totterdell (1959), 135 Mont. 56, 336 P.2d 696. The defendant must demonstrate prejudice from the record. State v. Schleining (1965), 146 Mont. 1, 403 P.2d 625. Defendant has not demonstrated he was prejudiced by the recordings of the closing argument. His right to a fair trial was ......
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