State v. Van Dyken

• Decision Date: 25 May 1990
• Docket Number: No. 88-038,88-038
• Citation: 242 Mont. 415,791 P.2d 1350
• Parties: STATE of Montana, Plaintiff and Respondent, v. Fred Daniel VAN DYKEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1350

791 P.2d 1350

242 Mont. 415

STATE of Montana, Plaintiff and Respondent, v. Fred Daniel VAN DYKEN, Defendant and Appellant.

No. 88-038.

Supreme Court of Montana.

Submitted on Briefs Jan. 4, 1990.

Decided May 3, 1990.

Rehearing Denied May 25, 1990.

Margaret L. Borg, Public Defender's Office, William Boggs, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Missoula, for plaintiff and respondent.

HARRISON, Justice.

Fred Van Dyken appeals the jury decision convicting him of deliberate homicide in the death of Officer Allen Kimery. At the first trial held September 9 through 21, 1985 in Park County, Montana, the jury was unable to reach a verdict after several hours of deliberation. Judge Thomas A. Olson declared a mistrial. A second trial, held June 8 through 26, 1987 in Lewis and Clark County, resulted in a conviction for deliberate homicide. We affirm the lower court's decision.

Several issues are presented for review:

1. Is defendant's conviction upon retrial barred by former jeopardy?

2. Did the District Court err in ruling that the expert witness for the defense could not testify to the defendant's version of the crime?

3. Did the District Court properly instruct the jury regarding consideration of lesser included offenses?

4. Did the District Court properly instruct the jury regarding the mental state required for conviction of deliberate homicide?

5. Did the District Court err in admitting the rebuttal testimony of the State's expert witness?

On November 30, 1984, Josie Morgan, defendant Fred Van Dyken's ex-mother-in-law, reported to the Great Falls Police Department that her black and white 1979 Chevrolet Monte Carlo had been stolen. That same evening Chris and Sandy Tigart, friends of the defendant, reported that a .357 Charter Arms revolver, a checkbook and wallet had been stolen from their Great Falls home. Also that evening, defendant cashed a number of the Tigarts' checks at various Great Falls establishments and was seen driving a black and white Monte Carlo. During most of the evening defendant was accompanied by his friend Mike Masikka and the two spent the night drinking in area taverns. At one point the defendant told Masikka he had a .357 pistol in the car trunk and asked of Masikka if he "knew anybody [he] wanted to waste or anything."

After taking Masikka home early in the morning of December 1, the defendant drove to Missoula where he telephoned his friend Jeff Braida. Defendant then returned to Great Falls.

Detective Joseph McGuire of the Great Falls Police Department called defendant on the morning of December 5 to inform defendant he was a suspect in the burglary of the Tigart home. Later that day defendant admitted to Chris Tigart that he had stolen the items from the Tigart home and would like to return them.

In an attempt to retrieve those items, defendant drove the black and white Monte Carlo to the Lincoln area where he had discarded the items on December 1, but failed to find any of the stolen property. Defendant then continued to Missoula where he again contacted Jeff Braida. Along with Jeff's bother, Tim Braida, the three spent the evening of December 5 drinking and playing pool. During the evening defendant pulled the .357 revolver from under the seat and showed it to the Braida brothers, declaring while pointing his index finger at the window as if holding the gun, "If a cop pulls me over, I'll just blow them [sic] away." Defendant drove the Braidas to their parents' home sometime after 2:00 a.m. December 6, and indicated he was going to his little brother's house.

The Braidas would later testify that they noticed nothing unusual or abnormal about defendant's behavior that evening and that he did not appear drunk nor was his driving impaired by drinking. Other witnesses who saw defendant that night and in the early morning hours of December 6 would testify similarly.

On December 6, 1984, shortly before 3:00 a.m., the attendant on duty at the SuperAmerica gas station on Brooks Street in Missoula, reported to 911 that a man in a black Chevrolet drove away without paying for gas. The 911 dispatcher broadcast the reported theft along with the car's license plate number, Montana 2-81609. Soon thereafter Missoula County Deputy Sheriff Allen Kimery radioed that he had the suspected vehicle in sight, identified it by license number, and requested the assistance of a city police officer since the incident had occurred within the city's jurisdiction.

A few minutes later a resident of the neighborhood that Deputy Kimery radioed from, called 911 to report that an officer was shot and lying in the street. Other officers were dispatched to the scene. Deputy Kimery was then transported to a nearby hospital where he died from a gunshot wound to his chest, the bullet having been fired from a distance of approximately three feet.

Officers began a city-wide search for the 1979 black and white Monte Carlo. The vehicle was soon discovered in an alley in Missoula's lower Rattlesnake area, riddled with bullet holes and abandoned.

At approximately 4:00 a.m., defendant called the Braidas and asked if they would give him a ride. On their way to pick up the defendant, the Braidas stopped at the SuperAmerica station on Brooks Street for gas. Jeff put gas in the tank while Tim went to pay for it. Tim, in talking with the gas station attendant, learned of the gas theft and shooting. When he found out the car involved had Great Falls license plates, Tim decided that he and Jeff would not pick up the defendant. Tim told the SuperAmerica attendant the defendant's name and where the Braidas were to meet him. The Braida brothers then returned home.

The SuperAmerica attendant then phoned 911 to relay the information given by Tim Braida. When the defendant was located at the convenience store indicated by Tim Braida, he was arrested for carrying a concealed weapon. Defendant was searched and a set of car keys recovered. The keys fit the ignition and trunk of the Monte Carlo abandoned in the lower Rattlesnake area. Later, defendant was charged with deliberate homicide in connection with the death of Allen Kimery.

Following his arrest defendant was taken to St. Patrick's Hospital where he was treated by the emergency room physician, Dr. Warren Guffin, for abrasions and lacerations from bullet fragments or bullet injury and blood and urine samples were drawn. Psychologist Herman Walters and psychiatrist William Stratford also interviewed defendant shortly after his arrest to determine if defendant was a risk to himself and to observe defendant's general emotional and cognitive functioning.

Fred Van Dyken took the stand on his own behalf at his second trial. The defendant testified that he had been drinking and smoking marijuana on the night of December 5 and morning of December 6; that he remembered being at his friends' Tim and Jeff Braida's home but not how he got there; that he did not remember being at the SuperAmerica station or driving anywhere in Missoula; that he remembered being pulled over, the presence of flashing lights, and someone approaching his car; that he remembered accelerating his car and that he had his gun and "threw a bullet over [his] left shoulder;" that he does remember getting the gun; that he remembered a lot of loud bullets and that after he drove away there was a hole in the window. Defendant also testified that he had no desire, purpose or intent to shoot the officer and that because he was afraid the officer was still pursuing him after he drove away, defendant "ditched" his car and called his friends the Braidas.

On cross-examination defendant testified his purpose in grabbing the gun was to throw a shot over his shoulder and that he intended to shoot the gun. Defendant also admitted that he knew the person approaching his car was an officer when he saw the flashing lights. Testimony was also elicited that defendant had rolled down the driver's window before shooting.

The defense presented evidence intended to show that, because of the amount of liquor consumed on the night in question, defendant was unable to form the mental state of "knowingly" or "purposely" necessary to a conviction of deliberate homicide. The defense offered the testimony of its expert witness, Dr. Mandel, to show defendant was incapable of forming the necessary mental state. Dr. Mandel based his testimony on a three and one-half hour interview with defendant before the first trial, a one hour interview with defendant before the second trial and conversations with defendant's mother, Hope Van Dyken and his ex-mother-in-law, Josie Morgan and defendant's friend Chris Tigart. In rebuttal of Dr. Mandel's testimony, the State called Dr. Walters and Dr. Stratford, both of whom saw defendant shortly after his arrest. The State also presented in its case-in-chief, Dr. Guffin, the emergency room physician who treated defendant immediately after his arrest on December 6, who testified that there were no physical manifestations of defendant being under the influence of alcohol when Dr. Guffin examined him.

Defendant was charged by information with deliberate homicide arising out of the shooting death of Officer Allen Kimery in the early morning hours of December 6, 1984. The case was assigned to District Judge Thomas A. Olson and, following a change of venue, tried before a Park County jury in September, 1985. When, after thirteen hours of deliberation, the jury notified Judge Olson it was unable to reach a unanimous verdict, the judge, over defense counsel's objection, ordered the jury to continue its deliberations. Following two more hours of deliberation, the jury was still unable to reach a decision and notified the judge of its stalemate. Judge Olson then declared a mistrial. Neither counsel for the defense or the prosecution objected to the procedure, nor did either counsel request that...