State v. Trull

• Decision Date: 31 May 2006
• Docket Number: No. 04-705.,04-705.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bill Wilbur TRULL, Defendant and Appellant.
• Court: Montana Supreme Court

136 P.3d 551

2006 MT 119

STATE of Montana, Plaintiff and Respondent, v. Bill Wilbur TRULL, Defendant and Appellant.

No. 04-705.

Supreme Court of Montana.

Submitted on Briefs: November 16, 2005.

Decided: May 31, 2006.

COPYRIGHT MATERIAL OMITTED

Kristina Neal, Assistant Appellate Defender, Helena, for Appellant.

Hon. Mike McGrath, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Robert Zimmerman, Sanders County Attorney, Thompson Falls, for Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Bill Wilbur Trull appeals his jury conviction of felony aggravated assault. He argues that his conviction should be overturned and the charges dismissed because terms used in the aggravated assault statute are unconstitutionally vague. He also moved for a new trial based on ineffective assistance of counsel and alleged perjury by the victim of his admitted assault. The District Court denied each motion. We affirm.

ISSUES

¶ 2 A restatement of the issues on appeal is:

¶ 3 Did the District Court err in denying Trull's motion for a new trial based on the alleged perjured testimony of the man he assaulted?

¶ 4 Did the District Court err in denying Trull's motion for appointment of new counsel and a new trial based on trial counsel's ineffective assistance?

¶ 5 Did the District Court err in denying Trull's motion to dismiss based on the unconstitutionality of § 45-2-101(66), MCA?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 On April 22, 2003, after a day spent fishing together, Trull and Harold Shaw stopped at a bar for a drink. While in the bar Trull got loud and began challenging other patrons to fight. Shaw told Trull to "shut up" at which time Trull punched Shaw in the face. The punch cut Shaw over his left eye and knocked him from his bar stool. The bartender called an ambulance but Shaw refused to leave in it. Shaw went home but later that night went to the hospital. He also reported the incident to the police. Shaw claimed that the blow caused him to have blurred or double vision, and that he suffered, in the words of the aggravated assault statute, "protracted loss or impairment of the function or process of a bodily member or organ."

¶ 7 Trull was initially charged with misdemeanor assault, but later was charged with felony aggravated assault. He entered a plea of not guilty. The case proceeded to trial on December 1-2, 2003, and a jury convicted Trull. After the trial, Trull moved for a new trial claiming that Shaw had perjured himself by providing testimony at trial that differed substantially from what he had told defense counsel and an optometrist before trial. Trull also filed a motion to dismiss on the ground that the term "protracted loss or impairment" as used in the aggravated assault statute was unconstitutionally vague. Lastly, Trull moved for a new trial, arguing that his trial counsel was ineffective. The District Court denied each motion without making findings of fact or conclusions of law. The court sentenced Trull to ten years at Montana State Prison (MSP), with three years suspended. Additional facts will be discussed as necessary to our analysis.

STANDARD OF REVIEW

¶ 8 Our standard of review of a district court's ruling on a motion for new trial is whether the district court abused its discretion. State v. Azure, 2002 MT 22, ¶ 30, 308 Mont. 201, ¶ 30, 41 P.3d 899, ¶ 30 (citation omitted).

¶ 9 Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. State v. Grixti, 2005 MT 296, ¶ 15, 329 Mont. 330, ¶ 15, 124 P.3d 177, ¶ 15.

¶ 10 The denial of a motion to dismiss in a criminal case presents a question of law. State v. Mallak, 2005 MT 49, ¶ 13, 326 Mont. 165, ¶ 13, 109 P.3d 209, ¶ 13. We conduct plenary review of a district court's conclusions of law to determine whether the court's conclusions are correct as a matter of law. City of Billings v. Gonzales, 2006 MT 24, ¶ 6, 331 Mont. 71, ¶ 6, 128 P.3d 1014, ¶ 6 (citation omitted).

DISCUSSION

¶ 11 A person commits the crime of aggravated assault when he or she "purposely or knowingly causes serious bodily injury to another." Section 45-5-202, MCA. State v. R.B."J"C., 2004 MT 254, ¶ 15, 323 Mont. 62, ¶ 15, 97 P.3d 1116, ¶ 15. "Serious bodily injury" is defined as a bodily injury that "creates a substantial risk of death; causes serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ; or at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of a bodily member or organ." Section 45-2-101(66), MCA.

¶ 12 Trull admits purposely hitting Shaw; therefore, satisfaction of the first element of aggravated assault is undisputed. What Trull challenges in this appeal is Shaw's claim that his injuries constitute "serious bodily injury." He asserts that Shaw lied about the severity of his injury, the condition of his glasses on the night of the incident, and a subsequent ophthalmologist appointment. Trull contends that because his conviction was based on Shaw's perjured testimony, he should be granted a new trial.

¶ 13 Trull maintains that prior to trial Shaw complained only that he experienced blurred vision as a result of Trull hitting him. Shaw's optometrist, Dr. Schull, confirmed that during Shaw's three visits with him, Schull was attempting to correct Shaw's blurred vision. Additionally, in pre-trial interviews with Trull's counsel, Shaw repeatedly complained of blurred vision. However, at trial, Shaw complained of intermittent double-vision accompanied by sharp shooting pains in his head, and claimed that his new glasses did not correct his problems, and that his old glasses worked just as well as the new ones.

¶ 14 Shaw also testified at trial that when Trull struck him on April 22, Trull knocked him to the floor and the bar stool on which he was sitting fell on his face and loosened three teeth. Shaw claimed that his glasses were bent and broken during the assault. However, the bartender who witnessed the episode and picked up Shaw's glasses after the assault, testified that the glasses were not broken or bent, and that the bar stool did not hit Shaw in the mouth. Trull contends that these purportedly false statements by Shaw, pertaining to the dispositive issue of the seriousness of his injury, deprived him of a fundamentally fair trial.

¶ 15 Lastly, Trull asserts that Shaw lied about an appointment with Dr. Murdock, an ophthalmologist with whom Trull's counsel had arranged a paid-for diagnostic appointment. Shaw testified at trial that Murdock refused to see him unless Shaw paid for the appointment, and he therefore left without seeing Murdock. The record reveals, however, that Murdock notified Trull's counsel by letter, that when Shaw arrived in his office, the receptionist told him that other arrangements had been made for payment and requested that Shaw fill out the "new patient" forms. Shaw ultimately declined to do so and left without seeing Murdock. Murdock offered to reschedule the appointment with Shaw, but Trull's counsel did not arrange for another appointment.

¶ 16 Relying on State v. Greeno and several out-of-jurisdiction cases, Trull argues that his conviction, based in part on false evidence, does not comport with fundamental fairness, and the District Court erred when it denied his motion for a new trial in light of Shaw's perjured testimony. Greeno (1959), 135 Mont. 580, 592, 342 P.2d 1052, 1058 ("Courts will always grant a new trial where it appears there has been a trace of perjured testimony presented to the jury resulting in a conviction.").

¶ 17 The State counters that while Shaw's testimony may have differed from earlier interviews or recounts of the event, he did not perjure himself. The State explains that what Shaw complained of as "blurry" vision, Dr. Schull identified as double vision. This is a difference in nomenclature, not perjury. The State also maintains that saying something new for the first time at trial does not constitute perjury.

¶ 18 A person commits perjury if "in any official proceeding he knowingly makes a false statement under oath or equivalent affirmation or swears or affirms the truth of a statement previously made, when the statement is material." Section 45-7-201(1), MCA. A false statement "is material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It is no defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation is a question of law." Section 45-7-201(3), MCA.

¶ 19 The test for materiality is whether in the actual factual situation involved, it would be reasonable to find that a witness' statement, if believed, could have altered the course or outcome of the proceeding. State v. Thompson (1978), 176 Mont. 150, 154, 576 P.2d 1105, 1107 (citing State v. Scanlon (1977), 174 Mont. 139, 569 P.2d 368).

¶ 20 In the case before us, the record reveals that the jury was presented with conflicting evidence, inconsistent testimony, as well as allegations of perjury and accusations of poor character. It nonetheless concluded that there was adequate evidence to support a guilty verdict, i.e., that Trull struck Shaw and Shaw suffered protracted loss or impairment to his eyesight as a result of the strike. It is within the province of the jury to weigh the evidence based on the credibility of the witnesses and determine which version of events should prevail. State v. Weigand, 2005 MT 201, ¶ 7, 328 Mont. 198, ¶ 7, 119 P.3d 74, ¶ 7. This is exactly what the jury did in this case. Moreover, much of the "new" testimony, as well as differing testimony presented by Shaw, such as how Dr. Murdock's bill was going to be paid or whether the lens of his glasses was...