State v. Strizich

• Docket Number: DA 18-0248
• Decision Date: 30 November 2021
• Parties: STATE OF MONTANA, Plaintiff and Appellee, v. JORY RUSSELL STRIZICH, Defendant and Appellant.
• Court: Montana Supreme Court

1

2021 MT 306

STATE OF MONTANA, Plaintiff and Appellee, v. JORY RUSSELL STRIZICH, Defendant and Appellant.

No. DA 18-0248

Supreme Court of Montana

November 30, 2021

Submitted on Briefs: September 1, 2021

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2017-59 Honorable Michael F. McMahon, Presiding Judge

For Appellant: Colin M. Stephens, Smith & Stephens, P.C. Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K Plubell, Appellate Services Bureau Chief, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana

OPINION

Beth Baker Justice

¶1 Jory Russell Strizich and Kaleb Daniels burglarized a cabin near Wolf Creek, Montana, in December 2016. A Lewis and Clark County jury convicted Strizich of aggravated burglary criminal trespass to property, and criminal possession of dangerous drugs. He appeals, challenging the First Judicial District Court's admission of flight evidence and its jury instructions on the mental state elements of the charged offenses. We affirm.

¶2 We consider the following restated issues on appeal.

1. Is Strizich entitled to a new trial because the District Court admitted evidence that he fled from a rehabilitation center three weeks after the burglary?

2. Has Strizich demonstrated plain error in the District Court's jury instructions to which he did not object at trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On December 28, 2016, Marshall and Sonja Buus drove to their cabin near Wolf Creek. When they pulled into the driveway they discovered an unfamiliar Dodge Durango. They observed lights on in the cabin and suspected someone had broken in. The Buuses parked their vehicle and saw Daniels and Strizich fleeing the cabin on foot. Marshall ran after Daniels and caught up to him near the Durango. Realizing that Daniels was armed, Sonja ran to Marshall and handed him a pistol. Daniels and Marshall pointed their guns at each other and yelled while Sonja called 911. Strizich ran down the driveway and hid behind some trees but returned to the Durango, ostensibly to "de-escalate the situation" between Marshall and Daniels. As Strizich approached, Marshall fired two warning shots in his direction and shot Strizich in the leg. Daniels and Marshall then opened fire on each other as Strizich crawled away in the snow. The wounded Strizich made his way to a nearby cabin owned by the Mayerniks and hid inside.

¶4 The Lewis and Clark County Sheriff's Office found Strizich at the Mayerniks' cabin, arrested him, and transported him to St. Peter's Hospital in Helena. Strizich underwent surgery for a broken tibia and was taken to Elkhorn Healthcare and Rehabilitation in Clancy. While recovering at Elkhorn, Strizich learned that there was an active arrest warrant for his participation in the burglary. On January 21, 2017, Strizich fled Elkhorn with assistance from three acquaintances: William Lamere, a juvenile; Jennifer Cabell; and Daniel Gonzalez. Lamere drove Strizich away from Elkhorn, while Cabell and Gonzalez followed behind in a separate vehicle. Following a high-speed chase, Strizich again was taken into custody, and Lamere was charged with criminal endangerment in the Lewis and Clark County Youth Court.

¶5 In a separate trial, Daniels was convicted of attempted deliberate homicide, aggravated burglary, and tampering with or fabricating physical evidence. We affirmed his conviction. State v. Daniels, 2019 MT 214, 397 Mont. 204, 448 P.3d 511.

¶6 The day after the Buus burglary, Lewis and Clark County Sheriff's officers searched Strizich's Durango. Inside they found two handguns in the front passenger's seat; two cell phones; a set of bolt cutters; a set of binoculars; a pair of pliers; a glass pipe containing methamphetamine; and a backpack containing ammunition, a butane torch, and a box cutter.

¶7 At Strizich's trial, Marshall testified that during his standoff with Daniels he noticed Strizich walking up the driveway. Marshall yelled at Strizich to "stay the hell away," but Strizich continued approaching him. Marshall testified that he did not know whether Strizich was armed but saw something black sticking out of his back pocket. Marshall claimed that Strizich continued approaching despite Marshall pointing his pistol toward him. When Strizich got within five feet of him, Marshall fired two warning shots into the ground, and Strizich stepped into one of the bullets.

¶8 The State presented pictures of the cabin after the burglary. Sonja Buus testified that many of the Buuses' belongings were out of place and that the condition of the cabin was different from how she left it. Sonja said someone had opened the cupboards, closets, and nightstand drawers, removed the vacuum from the hallway closet, unplugged the television, and left a pile of the Buuses' items, including a fuel canister, ammunition, and torches, on the kitchen island. The State's pictures showed a stack of the Buuses' guns by the back door of the cabin and a hammer and bolt cutters that did not belong to them. The State also presented pictures captured by the Buuses' game camera. Lewis and Clark County Detective William Pandis identified Daniels and Strizich in these images and testified that they were photographed walking away from the cabin at approximately 2:12 p.m. on December 28, 2016.

¶9 The State introduced evidence pertaining to the Mayernik cabin as well. Dale Mayernik testified that someone broke in through the window, ransacked the medicine cabinet, and lit a fire in the fireplace. Among other items, Dale discovered a silver belt buckle while cleaning his cabin. Kelsey Lippert, a resident of Carter, Montana, later testified that the belt buckle was stolen from him along with his truck approximately one month before the Buus burglary. He recognized the belt buckle because of its unique design-it depicts the Montana Grizzlies logo and the number "42," which was Lippert's jersey number when he played football for the Grizzlies.

¶10 The State called several witnesses to Strizich's escape from Elkhorn. On the first day of trial, defense counsel Brian Norcross made the following objection outside the presence of the jury:

MR. NORCROSS: In terms of the fleeing from Elkhorn, I'm going to object to that. That's not a listed offense, he's not charged with escape. So it has nothing to do with the burglary that he's alleged to have committed. It is . . . other acts that the State is trying to bring in simply to establish that my client is a bad person or that he was fleeing from a crime.

The State responded that the evidence was relevant to show consciousness of guilt. Norcross argued that Strizich's escape did not show consciousness of guilt because Strizich left Elkhorn "three weeks after" the alleged offense. The court overruled the objection:

THE COURT: The Court believes that the evidence with respect to Mr. Strizich's fleeing from the Elkhorn facility is relevant because it tends to show consciousness of guilt and therefore tends to prove the commission of the crimes charged and the defendant's responsibility for it. Rule 404(b), as the Montana Supreme Court has indicated in these situations, as to other crimes does not apply, and that's State versus Moore, 254 Mont. 241.

So the Court made its ruling. Mr. Norcross, you have made your record. Is there anything else you want to put on the record?

MR. NORCROSS: I guess, Judge, what I want to put on the record is that all the cases cited by the State involve flight immediately after the commission of the crime. This was not flight after the commission of a crime, it was three weeks later. . . . [S]o I'm just going to preserve my objection to that as well just for the record.

¶11 At the end of the third day of trial, the State notified the court that it planned to move for judicial notice of Lamere's youth court dispositional order the following day. Defense counsel again objected:

MR. NORCROSS: I think I can make the objection now, Judge, that this is a -- Mr. Strizich was a passenger, was not a driver, was not charged with any offense related to any high-speed chase, anything in the vehicle or anything else. If the State wants to say that this individual committed a crime going on a high-speed chase, I think it's not relevant to the charge Mr. Strizich is facing now.

¶12 Elena Applin, a certified nursing assistant for Elkhorn, testified that Strizich left the rehabilitation center through a window after two people visited him on January 21, 2017. Lewis and Clark County Sheriff's Deputies Greg Holmlund and Joshua Schmidt testified that Lamere led officers on a high-speed chase on Interstate 15 after he picked Strizich up from Elkhorn. Holmlund reported that he drove 90 to 95 miles an hour to keep up with Lamere. Schmidt testified that Lamere reached speeds "in excess of 135 miles an hour" before eventually crashing on Recreation Road outside Wolf Creek. Holmlund also reported that a second vehicle, occupied by Cabell and Gonzalez, followed Lamere closely, ostensibly attempting to block the officers from reaching Lamere's vehicle. Officers arrested Lamere and Strizich after they crashed, but Cabell and Gonzalez escaped. Lamere later admitted to the crime of criminal endangerment in youth court.

¶13 The State then moved the court to take judicial notice of Lamere's dispositional order from youth court:

MR. GALLAGHER: Your Honor, I move the Court [to] take judicial notice of the petition and the dispositional order in cause DJ 2017-1 in the Youth Court of this district.

THE COURT: I believe that Deputy Schmidt, along with Deputy Holmlund provided that necessary background. Mr. Norcross?

MR. NORCROSS: Again, Judge, I totally object to the introduction of

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