State v. Sharbono

• Decision Date: 14 April 1977
• Docket Number: No. 13111,13111
• Citation: 34 St.Rep. 196,563 P.2d 61,175 Mont. 373
• Parties: STATE of Montana, Plaintiff and Respondent, v. Loren Duane SHARBONO, Defendant and Appellant.
• Court: Montana Supreme Court

Page 61

563 P.2d 61

175 Mont. 373

STATE of Montana, Plaintiff and Respondent, v. Loren Duane SHARBONO, Defendant and Appellant.

No. 13111.

Supreme Court of Montana.

Submitted Jan. 24, 1977.

Decided March 31, 1977.

Rehearing Denied April 14, 1977.

Moses, Kampfe, Tolliver & Wright, Billings, Charles F. Moses, argued, Billings, for defendant and appellant.

Michael T. Greely, Atty. Gen., Helena, Victor G. Koch, argued, County Atty., Sidney, for plaintiff and respondent.

HARRISON, Justice.

Defendant appeals from a jury conviction of deliberate homicide entered in the district court, Richland County. Defendant was sentenced to 75 years in the Montana State Prison.

Defendant Loren Sharbono was an independent oil field service worker whose job took him away from home. He resided with his wife Ellen Sharbono and their 12 year old son in Baker, Montana. At the time of her death Ellen was eight months pregnant.

On November 15, 1974, defendant picked up his son in Baker and took him to stay in Glendive, Montana. Defendant was to return on November 16, 1974, to pick up Ellen and go to Sidney, Montana or to Dickinson, North Dakota, for the weekend to talk over some domestic problems. Testimony of witnesses indicated Ellen was afraid of night driving and was not going unless defendant came for her. Defendant denied this, but testified she did have poor eyesight and wore thick lens glasses.

Defendant had been going with a Sidney girl, Janis Hams, for two years and this was known by Ellen. According to testimony of Janis, they were contemplating marriage. Thirty days before Ellen's death a December 6, 1974 marriage date was set. Defendant told Janis his divorce would be final November 23, 1974, although he refused to name his attorney and asked Janis to trust him.

Defendant denied any intent to divorce Ellen and testified he had no intention to marry Janis. However, sometime following Ellen's death, he told Janis' father he was in love with Janis.

On November 16, 1974, defendant made a date with Janis to pick her up from work at 11:30 p. m. At 7:01 p. m., telephone records indicated he called his Baker home from a telephone booth in Wibaux, Montana, 45 miles from Baker, charged to his business credit card, and talked for 2 minutes. Defendant testified he then drove to Glendive and went coon hunting in western Richland County, without a gun. His hunting consisted of using a stick and flashlight, striking the coons between the eyes.

At about 11:15 p. m. that evening, defendant called Janis from Savage, Montana, and told her he was running late and would pick her up about 12:15 or 12:20 a. m. She testified this was the first time he had been late in their two year courtship. He later advised her he had pickup trouble.

Ross Wilson of Savage, Montana, a key witness for the state, went to Glendive the evening of November 16 to see a movie. He left Glendive about 10:00 p. m. He testified he was anxious to get home and drove at 80-90 miles per hour on the trip home. He was approximately four miles south of Savage when he came upon an orange Ford pickup truck, parked in his lane of traffic. Because his parents lived nearby he thought it might be poachers, so he slowed down and checked the license number, getting the county designation 39-and the first and last numbers of 1-9. The middle two numbers he could not catch due to the fact they were partially covered with dirt. Estimating his speed between Glendive and the parked truck, he thought he came upon the orange pickup at about 10:30 p. m. He slowed down to 12 to 15 miles per hour before passing the truck and in so doing noted there were two occupants of the truck cab; a passenger was getting into the truck and a man was bent over in an effort to close the door. He noted the driver had dark hair. Upon hearing of the 'accident' later that night, he went to the scene and reported this information to a fireman and the undersheriff. Defendant was driving his orange Ford pickup, with license number 39-1969.

Savage, Montana is located approximately 23 miles south of Sidney on the highway to Glendive. At approximately 11:15 p. m., November 16, 1974, a witness Clinton Patterson was driving toward Glendive. About four miles south of Savage he saw a glowing on the side of the hills. When he arrived at the scene he saw a car in a ravine with flames coming out of the window area and around the hood.

About this same time a beet truck arrived at the scene. This truck was driven by off-duty highway patrolman Jack Gaughan, who instructed Patterson to return to Savage and call the fire department and authorities. Gaughan could only get within 10 to 12 feet of the car, since it was burning fiercely, but he read the license number of the car as 39-924. The vehicle was registered in the name of Ellen Sharbono and defendant. Other officers, the Savage fire department, and the coroner subsequently arrived at the scene. The fire department took about 25 minutes to control the fire. By this time the badly charred remains of Ellen Sharbono had been discovered lying on the floor board, with her head against the passenger side of the car. The victim's body was removed by the coroner.

In the early morning of November 17, 1974, defendant was located at a motel in Sidney and notified of his wife's death. His truck, with license number 39-1969, was parked at the motel. About 4:15 a. m. on November 17, 1974, the Sharbono truck was seen stopping at the home of Jim Fischer, a retired highway patrolman and brother-in-law of defendant married to defendant's sister, Louella.

Fischers testified defendant called them to tell them of Ellen's death and asked to come out to their home. They testified he was very upset when he arrived and it had been an emotional experience. Defendant talked with them for sometime and slept on a couch in the living room for an hour and half early in the morning of the 17th. During his conversations with the Fischers, from the testimony of numerous witnesses, it would appear defendant made an effort to get them to provide an alibi for him by stating: 'You can say we was fox hunting together.'

The Fischers told this story about fox hunting to several investigating officers and it was not until December 26, the day of defendant's arrest, that Jim Fischer voluntarily went to the county attorney's office and gave him a corrected story.

In the meantime, on November 20, upon learning that his wife's body had been taken to Great Falls, defendant contacted Fischers and had them drive over a country road from Sidney to Wibaux with him. During this trip he had them note certain places where he said he had been, at specified times, during the evening of November 16-17. During defendant's visit to the home of Fischers on the 17th, he asked his sister to say they were playing 'pinochle' that evening. When his sister asked him why she should say that, he replied 'I was on that road-the Glendive-Sidney road'. He also told his sister he called his girl friend from Savage at about 11:00 to 11:10 p. m. on November 16. At no time during his testimony did defendant admit being on the particular section of the Glendive-Sidney road where the accident occurred.

Investigation of the accident revealed the victim's car went off the road at almost a 90 angle. This was described by the investigators as a most unusual angle of leaving the highway.

Investigation by the state fire marshal's office revealed the fire was caused by accelerants, starting in the passenger portion of the victim's automobile. The chemist from the state crime laboratory concluded the gasoline sample taken from the interior of the victim's car was a different gasoline than that in the tank of the automobile.

On November 20, 1974, Dr. Joseph McKinley, a Sidney pathologist, made a partial autopsy and found fractures of the hyoid bone and thyroid cartilage, which to him indicated manual strangulation. On December 20, 1974, the body was flown to Great Falls where a complete autopsy was performed jointly by Dr. McKinley and Dr. Pfaff, a forensic pathologist. Both concluded Ellen Sharbono died of manual strangulation. The victim's own doctor testified that Ellen Sharbono was previously in good health.

In addition, the state introduced evidence that defendant obtained life insurance on his wife on September 24, 1974. The policy was a joint whole-life policy for Loren and Ellen Sharbono in the amount of $150,000. Defendant's agent testified he had suggested the additional insurance due to defendant's going into business for himself.

On appeal, defendant presents 14 issues for this Court's review:

1) Was Patrolman Gaughan improperly allowed to give an unresponsive answer and testify as to his opinions and conclusions in describing the burning car?

2) Was Patrolman Rowe improperly allowed to testify as to a self-serving statement by saying he went to view the car 'to gather evidence'?

3) Was Patrolman Kaul improperly allowed to give his opinion as to the speed of the car when it left the highway and its speed when it hit the bottom of the ravine without proper foundation?

4) Was Exhibit A-14, a gaschromebiography analysis of gasoline, improperly admitted into evidence without sufficient foundation?

5) Was it error to permit Dr. Pfaff to repeat his opinion that the cause of death was by strangulation?

6) Was hearsay testimony improperly allowed into evidence when Mary McGonigal testified as to a telephone conversation she had with Ellen Sharbono?

7) Was hearsay testimony improperly allowed into evidence when James Fischer testified as to a telephone conversation he had with the county attorney?

8) Was the state improperly allowed to impeach its witness, James Fischer, without a showing of suprise?

9) Was there sufficient evidence at the close of the state's case to go to the jury?

10) Should the case have been dismissed at the close of the state's case because the medical testimony failed to satisfy the...