State v. Warnick, 82-188
| Decision Date | 29 December 1982 |
| Docket Number | No. 82-188,82-188 |
| Citation | 656 P.2d 190,39 St.Rep. 2369,202 Mont. 120 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Milo WARNICK, Defendant and Appellant. |
| Court | Montana Supreme Court |
Moses Law Firm, Billings, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Bruce E. Becker, County Atty., Livingston, for plaintiff and respondent.
Defendant appeals from his conviction of aggravated assault and sentence in the Sixth Judicial District Court in Park County. We affirm.
Initially, it is appropriate that we address a few remarks on the subject of defendant's appeal. Appellant has "shotgunned" seven issues for our consideration on appeal, several of which are totally devoid of merit, apparently in hopes of finding one or two that will hit the mark and constitute sufficient grounds for reversal. We will confine any breadth of discussion to those questions raising sufficiently meritorious claims to warrant our in-depth review.
Defendant picked up Linda, his former wife (with whom he was sharing a house in Livingston), from her work at the Livingston Convalescent Center at about 10:30 p.m. on July 23, 1981. They traveled to their home where she changed her clothes and then proceeded to her sister's house to visit another sister (Debby Jetty) who was in town. Defendant did not accompany her but went to bed.
Linda returned home about fifteen minutes after midnight and defendant woke up and asked her if she was planning on returning to him after her upcoming trip to North Dakota. She said she was planning to do so, but defendant got out of bed and started arguing with her. The two argued about different subjects for some time after this and during the argument Linda asked to leave several times but defendant refused to let her. Defendant also held Linda on the kitchen floor and hit her head against the floor.
During the argument the phone rang. Defendant picked up the receiver and the person making the call then hung up. A little later the phone rang again, and the procedure was repeated. The phone later rang a third time, and this time the defendant recognized that one of Linda's sisters was calling. He yelled an obscenity into the receiver and hung up.
After the third phone call defendant went to the bedroom and retrieved his .22 caliber rifle. Defendant testified that he had received previous beatings at the hands of Linda's relatives and was afraid that they might be coming to his house to do this again. Defendant requested his wife to call her relatives and tell them not to come, but she refused, saying they would not be coming to the house. Defendant then fired several rounds which hit the bathroom door. According to his testimony, defendant did this to show Linda he was serious and what would happen if her relatives did pay a visit. At one point in the argument, Linda was sitting on the couch and defendant pulled her off the couch and threw an easy chair at her.
Unknown to defendant, Debby Jetty had called the Livingston police dispatcher and told the dispatcher that defendant was beating his wife. Sgt. George Bryce and Officer Robert Stanley responded to the dispatcher's message and approached defendant's house. After exiting their automobiles they walked to defendant's front door and stood on each side of the door. Sgt. Bryce then knocked on the door. Defendant testified he could see heads at the bottom of the glass in the door.
Thinking the people outside were Linda's relatives, defendant fired six shots at the top of the door to scare them away. The lowest bullet hole was seven feet above the ground and the highest was seven feet three inches above the ground. Sgt. Bryce was struck by debris on the right side of his face. The officers then retreated to safer positions under cover.
Meanwhile defendant, not knowing the people he had just fired upon were police officers, called the police and requested the dispatcher to send some officers to his house. The dispatcher replied that someone had already called and that officers were on their way. Sgt. Bryce also notified the dispatcher that they had been fired upon and requested assistance.
The dispatcher then called defendant and told him that the officers were already there and were the ones who had been knocking on the door. The dispatcher informed defendant that he was to leave his guns in the house and walk outside with his hands in the air which he did.
On August 11, 1981, the Deputy Park County Attorney filed an information charging defendant with aggravated assault with the following language:
Following a trial beginning February 4, 1982, defendant was convicted and on March 9, 1982, was sentenced to ten years in the Montana State Prison with eight years suspended. Defendant was also sentenced to two years for using a dangerous weapon in the commission of an offense (section 46-18-221, MCA), to run consecutively with the first sentence.
Defendant appeals and presents seven issues for our review:
1. Was evidence of other crimes erroneously admitted in evidence?
2. Were certain pictures erroneously admitted in evidence?
3. Were the alternative charge and instructions erroneous?
4. Is justifiable force in self-defense an affirmative defense?
5. Did certain instructions bar consideration of the defense of justifiable use of force?
6. Could rational triers of fact find beyond a reasonable doubt that defendant's actions were justified?
7. Does the evidence support the sentence imposed?
In the first issue, defendant refers us to State v. Just (1979), Mont., 602 P.2d 957, 36 St.Rep. 1649, wherein we discussed how evidence of other crimes should be treated:
"(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment." 602 P.2d at 963-964, 36 St.Rep. at 1657-1658.
Appellant charges that the Just standard was violated on several occasions at trial--the testimony regarding the assault on Linda, the State's offering a revolver into evidence which was found on defendant's premises, the testimony about damage occurring to the house and the testimony as to an assault by defendant on his stepdaughter.
We initially note that the testimony regarding the assault on Linda and the damage occurring to the house and the revolver were not objected to at trial which forecloses our review on appeal. State v. Patton (1979), Mont., 600 P.2d 194, 36 St.Rep. 1731. Additionally, we fail to see how possession of the revolver or defendant's causing damage to his own house constitute a crime, and defendant fails to enlighten us on this point in his brief. Appellant argues in his reply brief that the failure to object was not fatal because this constitutes plain error. However, there was no error here.
Regarding the assault by defendant on his stepdaughter the transcript shows the following testimony by the defendant under questioning by the prosecutor:
Later, before settling instructions, defendant's attorney moved for a mistrial on the grounds that the above testimony planted the seed of defendant's prior crimes in the jurors' minds which could not be eliminated without a new trial.
The District Court correctly denied defendant's mistrial motion. It is evident from the above portion of the transcript that defendant did not testify about any prior crime because the question regarding charges being brought against defendant was never answered or alluded to again. In Just, upon which defendant heavily relies, the victim testified regarding several previous sexual offenses committed against her by the defendant. Here, defendant never did testify about any previous crimes allegedly committed by him and thus there is no parallel between Just and this case which would make the Just holding appropriate here.
In the second issue defendant assigns as error the admission of seven photographs taken by Officer Stanley on the night of the incident in question. Several of these photographs show where the spent .22 shells fell and the location of the bullet holes in the bathroom door and front door of the house. Exhibit No. 26 is a view of the edge of the bathroom door...
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