State v. Weinberger, 82-180

Decision Date01 July 1983
Docket NumberNo. 82-180,82-180
Citation204 Mont. 278,40 St.Rep. 844,665 P.2d 202
PartiesSTATE of Montana, Plaintiff and Respondent, v. Arrow WEINBERGER, Defendant and Appellant. (A).
CourtMontana Supreme Court

Skedd, Ashley, McCabe and Weingartner, P.C., J.C. Weingartner argued, Helena, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Chris Tweeten argued, Asst. Atty. Gen., Helena, James McCann, County Atty., Wolf Point, for plaintiff and respondent.

HASWELL, Chief Justice.

Defendant Arrow Weinberger was convicted of deliberate homicide by a Roosevelt County jury for the shooting death of Floyd "Scotty" Azure at a Culbertson service station on December 5, 1982. Defendant's twenty-year-old son, Adam, was convicted of felony murder for his part in the incident. Arrow was sentenced to serve seventy years in the Montana State Prison and was ordered to pay certain expenses incurred in the presentation of the charges against him. His motion for a judgment notwithstanding the verdict or for a new trial was denied. He appeals. We affirm.

The circumstances leading up to the shooting at a Culbertson service station began sometime earlier. Adam Weinberger, a resident of Fort Smith, Arkansas, had been living in northeastern Montana. Beginning in June 1981, he attempted to establish a relationship with Luanne Azure, the seventeen-year-old daughter of Scotty and Gloreen Azure. Azures were opposed to an involvement between Luanne and Adam because he was older than Luanne and because of Adam's failure to "act like a gentleman." Despite Azures' opposition, Adam and Luanne continued to see each other.

On November 10, 1981, Luanne ran away from home with three friends and went to Havre, Montana. Adam did not accompany Luanne to Havre, but she called him from there and made arrangements to meet him in Williston, North Dakota. Azures searched the Poplar area for Luanne without success. On November 12, they traveled to Williston to look for her. They found Adam Weinberger, who falsely told them that he had not seen Luanne and thought she was in Havre. Later that day Azures discovered Luanne in Williston and learned that she had in fact been with Adam.

Azures began to watch Luanne closely to keep her away from Adam. They also filed a complaint in Tribal Court alleging that Adam had contributed to Luanne's delinquency by enticing her out of the family residence against her parents' wishes and after curfew. The complaint asked that Adam be restrained from further contributing to her delinquency and that he be kept away from Azures' residence at all times. Sometime after the complaint was filed, Arrow Weinberger came to the Poplar area from Fort Smith, Arkansas.

On December 1, Luanne again ran away from home. Azures were convinced that Luanne was with Adam based upon the Williston incident. They immediately enlisted the help of local law enforcement officers and began to search for Luanne and for Weinbergers. At the Azures' request, police stopped Arrow Weinberger's Cadillac to look for Luanne. Both Adam and Arrow later went to Azures' home to register their displeasure at being stopped. Arrow was angry and told Azures that he did not like to get upset "because when I get upset, I stay upset ..."

Azures continued to search the Poplar area for Luanne. On the evening of Friday, December 4, they contacted Roy Trottier, a federal Indian police officer, and sought his help. The next morning, Azures discovered that Luanne had been seen with Adam on the day she disappeared. They immediately contacted Trottier and told him that if they found Adam they would report his whereabouts to the police and that if they found Luanne they would bring her to the police. Trottier approved the plan. Luanne had, in fact, been in contact with Adam Weinberger and he knew that she was in the Billings area. She planned to go to Fort Smith, Arkansas, with him.

Scotty and Gloreen Azure then began to search for Adam Weinberger's car. They later enlisted the help of Gloreen's sister, Carol Lee Azure, and Carol Lee's husband, Rodney. Rodney was Scotty Azure's cousin. Carol Lee and Rodney Azure found Adam's car in Brockton that afternoon and notified the police. The police dispatcher sent an officer to Brockton, but he apparently was unable to locate the car. Carol Lee and Rodney then attempted to find Scotty and Gloreen Azure. They encountered the Azures following Adam Weinberger's car on the Fort Kipp Road and turned around to follow the cars toward Culbertson. The three cars were then passed by Arrow Weinberger's white Cadillac. At a signal from Adam, Adam and Arrow pulled their cars to the side of the road and stopped. The two Azure cars proceeded into Culbertson and stopped at the Standard gas station. Scotty parked at the side of the station. Rodney parked several car lengths behind a red pickup that was also parked at the side of the station. The two Azure women went into the station to ask the attendant to call the police dispatcher. Scotty and Rodney remained outside.

At the time of the roadside stop, each Weinberger vehicle had two occupants. Arrow Weinberger was accompanied by his brother, Frank. Adam was accompanied by a hitchhiker named Thomas Hanzlick. When Adam returned to his car at that stop after talking with Arrow, he told Hanzlick that Arrow was going to "run down" the Azures and talk to them.

The Weinberger vehicles continued into Culbertson and also stopped at the Standard station. Arrow parked his car almost directly behind Scotty Azure's with about six feet of space between the vehicles. Adam parked his car angling into the passenger's side of Scotty's car with several feet of clearance between the vehicles. The red pickup truck was parked parallel to the driver's side of Scotty's car at a distance of nine and one-half feet away.

Scotty Azure stood between his car and the red pickup near the open driver's door of his car as Weinbergers pulled into the station. Arrow got out of his car and told Scotty to leave his son alone. Adam crossed between Scotty's car and Arrow's Cadillac to the back of the red pickup, saying, "get your bat out, Azure." He then began to drag a logging chain out of the pickup which he doubled over and started to swing at Scotty. Rodney Azure grabbed the other end of the eighteen-foot-long chain as Adam threw the chain toward Scotty. Scotty deflected the chain with a baseball bat he had retrieved from his car. Arrow Weinberger then drew a .25 caliber pistol and shot Scotty Azure once in the chest, killing him instantly. Arrow claimed that he acted in self-defense after Scotty had hit him with the bat once and tried to hit him again. Other witnesses placed the two at a distance of fifteen-to-twenty feet apart. The jury found Arrow Weinberger guilty of deliberate homicide.

Arrow Weinberger presents this Court with six issues on appeal:

1. Whether the instructions taken as a whole correctly defined the offense of deliberate homicide;

2. Whether certain hearsay testimony should have been submitted to the jury;

3. Whether "other crimes" evidence was erroneously introduced against defendant 4. Whether the prosecution's trial tactics deprived defendant of a fair trial;

5. Whether section 46-18-232, MCA, which allows imposition of trial costs against a convicted defendant, is unconstitutional; and

6. Whether defendant was properly sentenced.

Defendant first argues that a jury instruction defining deliberate homicide omitted an essential element of the crime. Instruction No. 11 provided:

"You are instructed that to sustain the charge of Deliberate Homicide against Arrow Weinberger the State must prove that the Defendant Arrow Weinberger purposely or knowingly performed the act or acts causing the death of Floyd Azure.

"If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, then you should find Defendant Arrow Weinberger guilty of Deliberate Homicide." (Emphasis added.)

Defendant challenges this instruction as incomplete on the basis that it allowed the jury to convict him of deliberate homicide if it found he intended to perform the act which caused death rather than intending death as the result of the act. We disagree for several reasons.

First, this instruction, taken in context with the other instructions and placed within the framework of the issues and arguments presented throughout the trial, did not allow the jury to convict Arrow if it found that he had only intended to pull the trigger. This Court has recognized that in the case of deliberate homicide, the requisite mental state attaches to the result:

"In Montana, a person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being ... The statutorily defined elements of the offense, each of which the State must prove beyond a reasonable doubt, are therefore causing the death of another human being with the knowledge that you are causing or with the purpose to cause the death of that human being." (Emphasis added.) State v. McKenzie (1978), 177 Mont. 280, 327-328, 581 P.2d 1205, 1232, vacated on other grounds, 443 U.S. 903, 99 S.Ct. 3094, 61 L.Ed.2d 871.

Here, we find that the jury was thoroughly instructed and could not have convicted Arrow unless it found that he had performed the act or acts causing Azure's death with the knowledge that he was causing or the purpose to cause Azure's death.

At the outset of trial, the jury was informed that the specific charge against Arrow was that:

"... Arrow Weinberger purposely or knowingly caused the death of Floyd Azure by shooting him in the heart area of the chest with a .25 calibre automatic pistol causing Floyd Azure to die almost instantly from a severed pulmonary aortic artery ..."

From that point, the focus of the trial was on the events leading to Azure's death and on whether the shooting was deliberate, accidental or an...

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