State v. Wilson

• Decision Date: 02 July 1981
• Docket Number: No. 80-291,80-291
• Parties: STATE of Montana, Plaintiff and Respondent, v. Donald E. WILSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1273

631 P.2d 1273

193 Mont. 318

STATE of Montana, Plaintiff and Respondent, v. Donald E. WILSON, Defendant and Appellant.

No. 80-291.

Supreme Court of Montana.

Submitted on Briefs April 2, 1981.

Decided July 2, 1981.

Hood & Sherwood, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, for plaintiff and respondent.

WEBER, Justice.

Defendant Donald Earl Wilson appeals from his conviction by a jury on the charges of felony burglary and misdemeanor forgery, rendered after trial in the District Court of the Fourth Judicial District, Missoula County, the Honorable John S. Henson, presiding. The defendant was sentenced to serve eight years at hard labor in the State Prison on the felony burglary charge and six months in the Missoula County jail on the misdemeanor forgery charge, the sentences to run concurrently.

Both parties recommend that the misdemeanor conviction be reversed, based on this Court's decision in State ex rel. Rasmussen v. District Court (1980), Mont., 615 P.2d 231, 37 St.Rep. 1498. That case held that district courts do not have jurisdiction over misdemeanor charges otherwise provided for, citing section 3-5-302(1)(d), MCA; jurisdiction over misdemeanors punishable by a fine not exceeding $500 and/or imprisonment not exceeding six months was found to be given to justice courts under section 3-10-303(1), MCA. Rasmussen, 615 P.2d 231, 232, 37 St.Rep. 1499; State v. Campbell (1981), Mont., 622 P.2d 200, 202, 38 St.Rep. 19, 21-22. Misdemeanor forgery is punishable within the above-stated limits. Section 45-6-325(4), MCA. Therefore, the District Court did not have jurisdiction to try the charge. Defendant's misdemeanor forgery conviction must be reversed, his sentence vacated, and the charge dismissed.

Defendant presents the following issues concerning the burglary conviction:

1. Whether the trial court erred in denying defendant's motion in limine and allowing the prosecution to inquire into the defendant's exercise of his Miranda rights to remain silent?

2. Whether the District Court erred in refusing to grant defendant's motion for a mistrial after the prosecution had violated an order in limine prohibiting the prosecution from inquiring into or soliciting any hearsay testimony with respect to things said by Anna Doney to investigating officers?

3. Whether there was sufficient evidence to convict the defendant of burglary?

We affirm the defendant's conviction.

The undisputed facts include the following: The home of Patrick and Gwen Thibodeau was burglarized while they were away on vacation during June and July of 1978. The owners returned home on July 15, and found the side door ajar. Mr. Thibodeau discovered that his checkbook was missing at that time.

At a later date, when the couple's account statement and cancelled checks arrived from the bank, they discovered a check written to Shaffer's Market in Missoula in the amount of $79.50, which neither had issued. The check was endorsed on the back in the defendant's name. After inquiring about the check at Shaffer's Market, the couple contacted the police, and then further searched their home. They discovered that eight 1879 silver dollars, a watch and a gold ring were also missing. The watch and ring were later recovered by police at the residence of one Anna Doney. The defendant had given the items to Doney's children.

Defendant was arrested near Glasgow in December 1978. He was charged by information with felony burglary and misdemeanor forgery. Defendant pleaded not guilty to each. Trial was held on January 3 and 4, 1980.

At trial, a store clerk from Shaffer's Market testified that he had cashed the subject check on June 24, 1978, for the defendant; and, that the defendant stated at the time, first, that Thibodeau had given the check to the defendant in payment for work which he had done on Thibodeau's ranch, and second, that defendant had asked Thibodeau to make the check payable to Shaffer's Market because the banks were closed that day and because the defendant intended to cash it at the store. The clerk testified that defendant had used part of the money received to pay a bill owed by one Judy Crosby and part to buy groceries, and the rest he had received in cash. The clerk further testified that a few weeks prior to trial defendant had returned to the store to discuss the check; the defendant stated the check had been given to him in payment for a truck sold by the defendant, that the check had been made out by another person in the store in front of the clerk, and that the defendant knew 40 witnesses who could testify to that effect. The clerk testified the defendant wanted to know why the clerk did not like him.

Defendant testified at trial to his version of events. According to his testimony, he had been living at the home of Judy Crosby. He had vehicles parked in the yard. One, a 1966 Ford, he sold to a man named Levi after Judy Crosby had stated that she wanted the vehicle moved. Levi wanted the car for parts. The sale price was $75. Defendant helped Levi tow the car away. Levi promised to pay at some later date. The defendant did not know the man by any other name.

Defendant testified that he did not see Levi again for several weeks, until Saturday, June 24, when he noticed Levi in a city park. Defendant approached Levi to demand payment. Levi stated that he could go and get the money, and asked to borrow the defendant's car. The defendant agreed, on the condition that Levi pay for the gas he would use, and lent Levi his white Ford station wagon.

The defendant testified that Levi returned approximately two hours later with the subject check. Defendant and Levi then went to Shaffer's Market to cash the check. Levi wrote the check in either the car or the store, in the amount of $79.50, which included $4.50 for the gas he had used. Because the defendant did not know Levi's real name, he had no reason to suspect that Levi was not Patrick Thibodeau.

The defendant testified that he and Levi presented the check to the clerk. The defendant produced his chauffeur's license, and endorsed the check on the back with his name and address.

The defendant further testified that several weeks after June 24, he found the watch and gold ring between the seats of his white Ford wagon, the one that Levi had used. The defendant thought the items were junk and gave them to the children of Anna Doney, whose family were friends with the Crosbys.

The defendant testified that he continued to frequent Shaffer's Market until he got a job moving houses in North Dakota. He phoned the Crosby residence after he had moved, and was informed that there were problems with the check. He directed Judy Crosby to contact the police and find out what was going on. When the defendant called back, Judy Crosby told him the check was no good and the police were interested in talking to him.

The defendant testified that he immediately set out to return to Missoula. In Glasgow, he needed gas but had run out of money. He stopped at the Glasgow Police Department to ask for help, and told them that he had to get to Missoula to straighten out a legal problem. He was given ten gallons of gas, but was then stopped and arrested a short distance outside of Glasgow.

After the defendant was returned to Missoula, he was released on bail. He never was able to locate Levi. He testified that on his return to Shaffer's Market to straighten out the dispute the clerk acted "snotty" and "sarcastic" towards him.

Appellant's Issue One:

As part of its cross-examination of the defendant, the State asked whether defendant had ever discussed the check with any police officers, either in Glasgow or Missoula, in an attempt to rectify the matter. Defendant objected and, in chambers, moved for an order in limine to prevent the State from asking any questions which might reflect or comment upon defendant's exercise of his Miranda right to remain silent. The Court denied the motion on the grounds that defendant had opened the area himself upon direct.

The court and counsel then returned to the courtroom and the prosecutor, after reviewing with defendant his testimony on direct examination, elicited the following:

"Q. Did you ever talk to anyone to get the matter straightened out then? A. No. I never got back here.

"Q. So then you never gave anyone, you never talked to anyone to clear the matter up, then? A. No, sir."

Defendant includes, as part of this issue, two statements made by the prosecutor during closing argument, as follows:

1. "Then, we hear from Allen Kimery again ... Allen Kimery attempts to locate people down there to find out if anyone else knows of this Levi. The first we have heard of Levi was yesterday, and had we known about this mysterious Levi first or before, then, we would have attempted to locate him to have him here. So we go to the Bonner area through Al Kimery and check out and see if anyone knows this Levi. Nobody but the Defendant and Jim Gates and their witnesses have ever heard of Levi." (Emphasis added.)

2. "When (defense counsel) began to address you, he told you about the State having the resources of the sheriff's department and whatever. One thing he did not tell you at that time was that the sheriff's department serves the subpoenas for both the State and the Defendant. Another thing he did not tell you is whether or not he issued a subpoena for Mr. Levi when he has that sheriff's department available as a resource to him to attempt to locate this Mr. Levi or Levi. We did not know of Levi until yesterday

"MR. SHERWOOD: Your honor, I'm going to object to this line of discussion. It violates the Miranda right.

"THE COURT: Mr. McLean?

"MR. McLEAN: Your Honor, I don't believe He mentioned about this Levi and our sources and I'm telling the jury that we tried to located Mr. Levi.

"THE COURT: I will sustain the objection.

"MR. McLEAN: Thank you, Your Honor ..." (Emphasis added....