State v. Wells

• Decision Date: 04 February 1983
• Docket Number: No. 82-131,82-131
• Citation: 202 Mont. 337,40 St.Rep. 127,658 P.2d 381
• Parties: The STATE of Montana, Plaintiff and Respondent, v. George Clayton WELLS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 381

658 P.2d 381

202 Mont. 337

The STATE of Montana, Plaintiff and Respondent, v. George Clayton WELLS, Defendant and Appellant.

No. 82-131.

Supreme Court of Montana.

Submitted Sept. 14, 1982.

Decided Feb. 4, 1983.

Bauer & Kuether, Mark Bauer argued and Charles W. Kuether argued, Great Falls, for defendant and appellant

Mike Greely, Atty. Gen., James Mclean argued, Asst. Atty. Gen., Helena, J. Fred Bourdeau, County Atty., Great Falls, Thomas McKittrick argued, Deputy County Atty., Great Falls, for plaintiff and respondent.

SHEEHY, Justice.

Defendant Wells was convicted in the District Court, Eighth District, Cascade County, of aggravated assault, aggravated burglary, and attempted sexual intercourse without consent. This appeal follows.

In the early morning hours of August 18, 1981, Terry W., the twelve year old victim of Wells' attack, was asleep in the bedroom off the living room of her grandparent's home in Great Falls. Her grandfather, the only other person in the house at the time, was asleep in a downstairs bedroom.

At approximately 2:30 a.m., Terry was awakened from a light sleep when the defendant pulled the covers off her body. As she rolled over to look at the intruder, Wells grabbed her neck and choked her with his left hand as he held a knife in front of her face with his right hand.

The defendant let loose and Terry scooted to the end of the bed. She asked what he wanted and he answered, "I want you." Terry started to run but the defendant grabbed her and hit her on the back of the head with a knife handle. She blacked out and fell. When Terry regained consciousness, she was lying on her stomach on the bed. Defendant stabbed her six times in the back and then attempted to rape her. At that point the old kitchen floor suddenly squeaked, startling defendant and apparently scaring him off.

Terry immediately went downstairs and awakened her grandfather. He laid her on the bed and called the emergency number for the police and ambulance. As they waited for the ambulance, Terry and her grandfather heard footsteps upstairs. The police and ambulance arrived and Terry was placed on a stretcher. Terry's grandfather directed the stretcher out through the back door, a more convenient route to the ambulance. The grandfather then went to the front porch where he found defendant standing.

As the police came to the front of the house with the stretcher, they saw defendant leaving the porch, called to him, and questioned him. Defendant was covered with blood. When asked about it, he told officers that he had been in a fight in Helena and had just returned to Great Falls by bus. Since the blood was still wet and glistening and since defendant had no cuts or other wounds, he was taken into custody. Defendant later told officers that he had been at home, about a block away, had noticed the commotion and had just come to see what was happening.

Wells was charged by information on August 24, 1981. On December 11, 1981, the State moved to amend the information. The District Court granted that motion, defendant was arraigned on the amended information, and on December 18, 1981, he entered his pleas of not guilty to each count. At that time, defendant moved to assert an alibi defense. The District Court denied that motion and jury trial began on December 21, 1981. The jury found Wells guilty of aggravated assault, aggravated burglary, and attempted sexual intercourse without consent.

Wells presents this Court with five issues on appeal:

1. Whether defendant should have been allowed to assert an alibi defense within ten days after entering his plea of not guilty to the amended information, pursuant to section 46-15-301(2), MCA;

2. Whether defendant was prejudiced by the State's failure to sequester one witness;

3. Whether comment by a witness that defendant had been in the State penitentiary constituted reversible error;

4. Whether conviction of both aggravated burglary and aggravated assault violates constitutional and statutory provisions against double jeopardy and multiple punishment; and,

5. Whether the State's exhibits A, B, D, E, F, and G were properly authenticated and identified.

I. Alibi Defense

Defendant argues that he should have been allowed to assert the alibi defense for two reasons. First, he contends that good cause was shown and that assertion of the defense would not have surprised the State. Second, he contends that an amended information is the filing of a new instrument that supersedes its predecessor. It, therefore, requires a new arraignment and gives defendant a statutory right to assert the defenses of alibi, self-defense, or inability to form the requisite mental state within ten days of the new arraignment. Finally, he contends that the State should not have been able to add two witnesses after the denial of the alibi defense.

Section 46-15-301(2), MCA, provides that a defendant must assert the defense of alibi within ten days after arraignment for the purpose of notice only and to prevent surprise. This statute also allows the defense to be asserted at "such later time as the court may for good cause permit."

Defendant contends that good cause was shown to allow him to assert the alibi defense. Defense counsel argued that he did not become aware that the defense was available until December 17, 1981. This was some four months after the crimes had been committed. The alibi that defendant proposed to assert was the testimony of his mother and a friend that he had been with them during the 35 minute period in question. Defense counsel maintained that he had been unable to contact them earlier to establish a possible alibi. Further, he maintained that the defendant had been unable to provide any information that supported an alibi defense since Wells claimed he was so intoxicated the night of the crime that he could not remember where he had been at any given time.

This Court has recognized that the only purpose of section 46-15-301, MCA, is to prevent surprise and to provide adequate notice of the alibi defense. State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 250, 462 P.2d 897, 902. A defendant may upon a showing of good cause assert his defense of alibi later than the ten day period imposed by statute. Even during trial a fact situation may be developed to which an alibi defense may be pertinent or material. Witsoe v. Nelson (1974), 164 Mont. 511, 512, 524 P.2d 1111. If such good cause is demonstrated, but the State will be surprised if the alibi defense is allowed, the appropriate remedy would be to grant the prosecution a recess or a delay in the proceedings. State ex rel. Sikora, supra, 154 Mont. at 251, 462 P.2d at 902.

The standard this Court has applied in determining whether good cause is shown is whether "substantial reason that affords a legal excuse" exists for the delay in asserting an alibi defense. State v. Rozzell (1971), 157 Mont. 443, 450, 486 P.2d 877, 881. Other courts have also considered the substance of the proposed alibi. State v. Martin (1966), 2 Ariz.App. 510, 410 P.2d 132, 137.

Alibi defenses have been denied where the alibi would have been provided by family members or friends and it was not shown that it was not possible to contact them within the period allowed by statute. United States v. Smith (D.C.Cir.1975), 524 F.2d 1288. This Court has upheld denial of testimony by the defendant's mother as to his whereabouts during the crime where defendant attempted to have her testify without notice and without a showing of good cause for delay. State v. Johnson (1978), 179 Mont. 61, 66-67, 585 P.2d 1328, 1331.

The alibi defense is one readily fabricated. It should therefore be received with caution and the State should have an opportunity to carefully investigate the defense. State v. Martin, supra, 410 P.2d at 136; State v. Davis (1981), 63 Hawaii 191, 624 P.2d 376, 379; Reese v. State (1979), 95 Nev. 419, 596 P.2d 212, 216. Strict enforcement of the notice statute will reduce the chance that surprise or maneuver, rather than the truth, will determine the outcome of the trial. State v. Davis, supra, 624 P.2d at 379. It is for these public policy reasons that pretrial discovery and investigation of the alibi defense are necessary. State ex rel. Sikora v. District Court, supra, 154 Mont. at 246, 247, 462 P.2d at 900.

The District Court did not abuse its discretion in denying defendant's request to assert the alibi defense for good cause. State v. Johnson, supra, 179 Mont. at 67, 585 P.2d at 1331. State v. Babella (1978), 177 Mont. 275, 279, 581 P.2d 838, 841. The record does not support defendant's contention that good cause was shown. No explanation was provided for defendant's inability to locate his mother and friend in order to establish the defense. Defendant was specifically reminded of his right to assert the defense at his August arraignment and was asked at the omnibus hearing in late November whether he intended to assert it. The alibi would have had to cover a specific Defendant's second argument is that the amended information is a new document that requires a separate arraignment. Defendant therefore has a statutory right to assert the defense of alibi within ten days of the later arraignment. We agree.

35 minute period from 2:00 a.m. to approximately 2:35 a.m. Finally, the defendant's alibi would have been provided by a relative and a friend.

Here, the State moved to amend the information within two weeks of trial. That amendment required another arraignment. During the second arraignment defendant was informed, as he had been at the first, that he was entitled to assert an alibi defense within ten days. Two days later, he attempted to do so and was then denied that right. The District Court erred in denying that statutory right.

In the instant case, this does not amount to prejudicial error. The amendments to the information were minor and the charges as amended were founded on the facts set forth in...