State v. Matt

No. 90-177

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

plaintiff and Respondent, JUh' 2 6 1991

-vs-

ALLEN RAY "SPEEDY" MATT,

~efendantand Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Benjamin R. Anciaux, Polson, Montana

For Respondent:

Hon. Marc Racicot, Attorney General, Helena, Montana

Patricia J. Jordan, Asst. Atty. General, Helena

Larry Nistler, County Attorney; Robert S. Anderson,

Deputy, Polson, Montana

Submitted on Briefs: April 12, 1991

Decided: June 26, 1991

Filed:

'% 3.(

P

Justice Fred J. Weber delivered the Opinion of the Court.

Defendant, Allen Ray 'lSpeedytt

Matt, appeals from a conviction

for felony assault in violation of 1 45-5-202(2), MCA, following

a jury trial in District Court in the Twentieth Judicial District,

Lake County. We affirm.

We have revised the issues as follows:

1. Should this Court modify the Just Rule as established in

State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to

evidence of other crimes, wrongs or acts of the defendant?

2. Did the District Court err when it admitted testimony of

other crimes, wrongs or acts of the defendant?

3. Was the evidence sufficient to support a verdict of guilty

on the charge of felony assault?

On November 10, 1988, the defendant went to the Flathead

Irrigation Project office to try to get money for a windshield that

he claimed had been damaged by one of their trucks. When he failed

to get what he wanted, he threw a rock through an office window and

broke it.

Later that day a tribal officer went to defendant's house to

talk to him about breaking the window. The defendant became

verbally abusive, went into his house and refused to talk to the

officer. The officer continued to talk to the defendant through

defendant's door, telling defendant that he would have to get a

warrant if defendant continued to refuse to talk to him. Defendant

came back out of the house and an altercation occurred. The

officer then placed the defendant under arrest. The defendant

2

. . .I

continued to resist, both verbally and physically. During the

altercation, the officer sprayed the defendant in the face with his

cap-stun in an attempt to subdue him. The defendant wrestled away

from the officer and crawled back into his house.

The officer left the porch to call for backup. The defendant

came back out of the house swinging a long sickle-shaped knife and

yelling, 181111

kill you, you son of a bitch." The officer

approached defendant from the rear and attempted to disarm him.

A wrestling match ensued. The officer managed to knock the knife

away. When the officer got away and backed off, the defendant

grabbed a club-like stick. The officer put his hand on his gun,

which was still in its holster. Defendant yelled, "Go ahead, shoot

me", then went back into his house and out the back door. The

officer sustained injuries during the altercations.

A short time later, the defendant was arrested and put into

a police vehicle by other officers. Defendant repeatedly kicked

the door in the vehicle until he had to be removed from the vehicle

and subdued.

I

Should this Court modify the Just Rule as established in State

v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to

evidence of other crimes, wrongs or acts of the defendant?

At trial the State introduced evidence that the defendant had

been involved three months earlier in an altercation with a deputy

sheriff in Okanogan County, Washington. The deputy sheriff

testified that he was on duty at a rodeo when the defendant entered

'k 1

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the rodeo headquarters. Defendant had assaulted a woman and he was

still trying to attack his victim. The deputy had to physically

separate the defendant from his victim. The defendant pushed the

deputy in the chest to get him out of the way so he could get to

the victim. He shoved the deputy two more times during the

struggle. Another officer then took the victim to another room.

When the deputy had the defendant under control and sitting down,

the defendant jumped up and pushed the deputy again, attempting to

leave. The deputy had to grab the defendant and pull him down to

the floor to attempt to handcuff him. The defendant continued to

struggle. Eventually the deputy got the defendant into handcuffs

and arrested him. The deputy described him as "crazed.I1

Defendant contends the Washington incident was not similar to

the crime for which he was on trial and that there was no

connection between the events from which to infer a common scheme

or plan. Therefore defendant contends that the Just Rule was not

met. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The State

contends that the evidence of the Washington altercation was

relevant to show state of mind or intent of the defendant with

regard to the assaulting of police officers. The State contends

this was admissible under Rule 404(b), M.R.Evid.

In 1979, State v. Just established what has come to be called

the Just Rule. Just analyzed the exceptions to the general rule

of the incompetency of evidence of the commission of other crimes,

pointing out that the exceptions which are the rule in Montana are

of ancient lineage. Just then described the exceptions as set

forth in the 1973 case of State v. Taylor (1973), 163 Mont. 106,

515 P.2d 695. The exceptions were specifically recognized in a

number of cited Montana cases decided in the preceding 75 years,

reaching back to State v. Peres (1903), 27 Mont. 358, 71 P. 162.

Just next made reference to both Rules 404(b) and 403,

M.R.Evid. Because these are critical to the analysis, we now set

them forth in full:

Rule 404. Character evidence not admissible to

prove conduct, exceptions; other crimes; character in

issue.

...

(b) Other crimes, wrongs, acts. Evidence of other

crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show that he acted in

conformity therewith. It may, however be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

Rule 403. Exclusion of relevant evidence on grounds

of prejudice, confusion, or waste of time. Although

relevant, evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the

jury, or by consideration of undue delay, waste of time,

or needless presentation of cumulative evidence.

Just then states there emerged a four element rule to

determine the admissibility of evidence of other crimes, wrongs or

acts in criminal prosecutions. The four elements as stated in Just

were:

(1) The similarity of crimes or acts;

(2) Nearness in time;

(3) Tendency to establish a common scheme, plan or

system; and

(4) The probative value of the evidence is not

substantially outweighed by the prejudice to

the defendant.

Just applied the rule to the facts of that case and concluded that

the evidence of the defendant's other acts against the victim in

question were properly admitted.

While the Just Rule was entirely appropriate to the factual

situation in that case, it has led to contradictory results. The

third element of the Just Rule provides that evidence may be

admissible for the purpose of showing a common scheme, plan or

system. We agree with that conclusion in that case. However, we

emphasize that Rule 404(b) is not limited only to common scheme,

plan or system. Rule 404(b) provides that evidence may be

admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. Clearly Rule 404(b) provides for

the admission of evidence for many purposes other than the common

scheme, plan or system stated in Just. We point out that the

"common scheme, plan or systemw referred to in Just is listed as

''planw under Rule 404(b), according to McCormick on Evidence, 3rd

Ed., 5190, pp. 558-564 (1984); 22 C. Wright and K. Graham, Federal

Practice and Procedure, Evidence, 5 5244, p. 499 (1978); and 23 CJS

Criminal Law S830 (1989).

While the four element rule of Just was proper under the facts

of that case, and also was appropriate under the facts of State v.

Jensen (1969), 153 Mont. 239, 455 P.2d 634, application of the Just

Rule has resulted in an apparent narrowing of the purposes listed

in Rule 404 (b). As an example, State v. Brown (1990), 791 P.2d

1384, 47 St.Rep. 935, applied the third element of the Just Rule

in reaching a conclusion that the prosecution failed to establish

a common scheme, plan or system. In Brown, the State argued that

the other crimes evidence was offered to prove defendant's motive

and intent. The court pointed out that the acts committed on

previous dates, while similar in nature, does not necessarily prove

that the acts tend to establish a common scheme, plan or system.

The majority then concluded that the record demonstrated that the

defendant's acts lacked any common scheme or plan and were instead

spontaneous acts dictated by his character and the situation at

hand. While it was true that the evidence in Brown failed to

establish a common scheme, plan or system, that conclusion did not

address the dissent which pointed out that the evidence could be

found admissible in order to establish the defendant's opportunity,

motive and intent under Rule 404(b).

We now recognize that the Just element described as common

scheme, plan or system is to be classed as a "plan1'under Rule

404 (b) . We further recognize that evidence of other crimes, wrongs

or acts may be admissible for many other purposes, including those

specifically listed in Rule 404(b), as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident. We conclude that the rule as

enunciated in Just should now be modified.

We therefore now adopt the following as the Modified Just Rule

which sets forth the basis for the admission of evidence of other

crimes, wrongs or acts as referred to and described in Rules 404(b)

and 403, M.R.Evid.:

(1) The other crimes, wrongs or acts must be

similar.

(2) The other crimes, wrongs or acts must not be

remote in time.

(3) The evidence of other crimes, wrongs or acts

is not admissible to prove the character of a person in

order to show that he acted in conformity with such

character; but may be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident.

(4) Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

misleading of the jury, considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

The Modified Just Rule incorporates the various purposes described

in Rule 404(b), and therefore eliminates the limitation that

evidence is admissible only if it shows a common scheme, plan or

system. In addition, the Modified Just Rule includes the

additional limiting factors which are set forth in Rule 403.

While the foregoing holding modifies the Just Rule, we do not

overrule the procedural protections required under Just. We do

clarify those protections however by specifically holding that the

following procedural protections shall apply as a part of the

Modified Just Rule.

(1) Evidence of other crimes, wrongs or acts may

not be received unless there has been written notice to

the defendant that such evidence is to be introduced.

The notice to the defendant shall specify the evidence

of other crimes, wrongs or acts to be admitted, and the

specific Rule 404(b) purpose or purposes for which it is

to be admitted.

(2) At the time of the introduction of such

evidence, the trial court shall explain to the jury the

purpose of such evidence and shall admonish it to weigh

the evidence only for such purposes.

(3) In its final charge, the court shall 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.

I1

Did the District Court err when it admitted testimony of other

crimes, wrongs and acts of the defendant?

We now analyze the present case under the Modified Just Rule.

The Washington incident involved assaults on a Washington deputy

sheriff. The first occurred when the defendant attempted to get

to a woman assault victim. The second occurred after the assault

victim had been removed from the room and the defendant attempted

to leave the building. We conclude that the Washington incidents

were assaults on a peace officer and were similar in nature to the

assault on the tribal peace officer in the present case, and

therefore meet the requirements of element (1) of the Modified Just

Rule.

The assaults involved in the Washington case occurred three

months prior to the assault in the present case. We conclude that

such assaults were not remote in time and meet the requirements of

element (2) of the Modified Just Rule.

With regard to element (3) of the Modified Just Rule, the

Washington incidents were offered by the State to prove intent

which is a permissible purpose. In State v. Sadowski (1991), 805

P.2d 537, 543, 48 St.Rep. 93, 97, this Court analyzed many of the

problems which are relevant to proving intent under the Just Rule.

As in the present case, in sadowski the State presented one single

prior incident as proof of intent. With regard to a single

incident, as well as the question of intent, we stated:

We agree with the Johns court that no categorical

statement can be made one way or the other [in a case

where there is only one prior similar instance of

conduct], rather such decisions must be made on a case

by case basis. Johns, 725 P.2d at 324. "A simple

unremarkable single instance of prior conduct probably

will not qualify, but a complex act requiring several

steps, particularly premeditated, may well qua1ify.l'

Johns, 725 P.2d at 324.

Thus, the linchpin for determining whether a single

instance of prior conduct is sufficient to prove intent

is relevancy based on similarity. Here, because the

defendant admits that he purposely and knowingly killed

Rob Hare, the prior uncharged misconduct actually is

relevant towards the reasonableness of Sadowskilsclaim

of self defense, i.e., whether he acted with criminal

intent or in self defense.

Sadowski, 805 P.2d at 543, 48 St.Rep. at 97.

This Court then discussed the similarity of the acts and

reached the conclusion that the prior act was admissible as

relevant regarding Sadowskils intent. In Sadowski the defendant

argued that he intended to use the gun only in self defense while

the prosecution argued that it was an intentional act of homicide.

Sadowski is a good illustration of admission of other acts to prove

whether or not the intent involved was that of self defense or of

assault or homicide.

In the present case we do not have an issue of intent for

determination by the jury in a manner comparable to Sadowski. In

comparing the assault incidents in our present case, we note that

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the primary focus of the initial assault on the Washington deputy

sheriff was aimed at getting the deputy out of the way in order

that the defendant could continue his assault on his female victim.

His second assault may still have involved his aim of getting to

the female victim or it may have involved his desire to get out of

the building and escape arrest. In the present case, the

triggering incident appears to have been the defendant's emotional

reaction which resulted in his breaking a window. The assaults

which followed were the result of an attempt by the officer to

discuss with defendant the breaking of the window. It is apparent

that the emotional condition which was present at the time the

defendant threw the rock continued to the meeting with the officer.

Our question then becomes whether the single instance of

conduct in Washington is admissible to prove intent in the present

case. The State argues that the Washington incident demonstrates

that the defendant acted with the intent to assault a peace officer

which increases the probability that the defendant acted with a

similar intent in the present case. Thus the prior assaults tend

to show that the defendant does not intend to submit to the

authority of peace officers.

We conclude that in the Washington incident the defendant's

intent was to get at his female assault victim. The deputy sheriff

just got in the way when he intervened. In the present incident

the intent was aimed directly at the officer. We conclude that

the intent to get at a female assault victim is not the same as the

intent to resist the authority of a police officer. We therefore

I . . < a

conclude that the evidence should not have been admitted to prove

the defendant's intent.

Analyzing element (4) of the Modified Just Rule, we note that

the evidence was not needed to gain a conviction. The defendant

verbalized his intent when he waved the sickle-shaped knife and

yelled, "1'11 kill you, you son of a bitch." The Washington

incident was therefore a needless presentation of cumulative

evidence of intent. In addition, we conclude that the probative

value of the evidence is substantially outweighed by the possible

confusion of the issues and misleading of the jury.

Applying all four elements of the Modified Just Rule, we

conclude that the evidence here was not admissible in the present

case under elements (3) and (4) .

While we conclude that the admission of the evidence was

improper, we also conclude that the admission of such evidence does

not constitute grounds for reversal in this case. As analyzed in

the next part, the evidence against the defendant was overwhelming.

The admission of improper evidence is not grounds for reversal

unless there is a reasonable possibility that the evidence may have

contributed to the conviction. Brodniak v. State (1989), 239 Mont.

110, 779 P.2d 71. We hold that the admission of the other crimes

evidence was harmless error in this case.

I11

Was the evidence sufficient to support a verdict of guilty

on the charge of felony assault?

Defendant contends that the evidence is insufficient to

support the conviction because (1) there was no evidence to show

intent, (2) the officer's fear of injury was not reasonable, (3)

there was no evidence to show the defendant caused the officer's

injury, and (4) the officer committed a felony assault on the

defendant, who was defending himself.

A conviction will not be set aside if, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. State v. Krum (1989), 238

Mont. 359, 362, 777 P.2d 889, 891.

The elements of the crime of felony assault are defined in

§ 45-5-202(2), MCA, which reads:

A person commits the offense of felony assault if he

purposely or knowingly causes:

(a) bodily injury to another with a weapon; [or]

(b) reasonable apprehension of serious bodily

injury in another by use of a weapon[.] ...

The evidence showed that the defendant came out of his house

carrying a lethal weapon and confronted the officer. Waving the

sickle-shaped knife, he yelled, wItll kill you, you son of a

bitch.!! This evidence is sufficient to support a finding that the

defendant acted purposely or knowingly which satisfies the intent

element. The officer testified he sustained swelling and a

laceration of his left wrist, requiring him to wear a brace for six

weeks. The officer also testified that he thought he had "had itH

when defendant had him pinned to the ground while defendant had the

knife in his hand. The evidence is sufficient to support a finding

that there was bodily injury to the officer with a weapon; or

alternatively, that the officer had reasonable apprehension of

serious bodily injury by defendant's use of the knife.

The chain of events does not support defendant's contention

that he was merely defending himself. Defendant came out of his

house and confronted the officer twice. The officer acted

reasonably to effectuate a lawful arrest and defend himself.

The facts support the conclusion that any rational trier of

fact could have found beyond a reasonable doubt the essential

elements of the crime. We conclude the evidence was sufficient to

support the conviction of felony assault.

Affirmed.

,"

_-I b y us ice

Justices

Justice William E. Hunt, Sr., dissenting.

I dissent. Today the majority, in its modification of the

Just rule, is confusing the fundamental purpose of Rule 404(b) with

the more mechanical admissibility requirements of Just. The change

in our law leaves the accused with an almost insurmountable task

in excluding evidence of bad character. I dissented similarly in

State v. Sadowski, - P.2d , 48 St.Rep. 93 (1991). The

importance of maintaining the distinction between 404(b) and Just

cannot be over-emphasized.

Our criminal justice system is premised on the notion that the

accused are innocent until proven guilty. Rule 404(b) is a crucial

tool for the preservation of that premise. Rule 404(b)

unequivocally states that evidence of other crimes, wrongs, or acts

is not admissible as character evidence. The danger of prejudicing

a defendant by admission of such evidence constitutes, as Justice

Cardozo remarked, I1aperil to the innocent.I1 People v. Zackowitz,

254 N.Y. 192, 194, 172 N.D. 466, 467 (1930). We are therefore

charged, by the very foundation of our justice system, to closely

scrutinize any procedure which may imperil the rights of the

accused.

Rule 404 (b), therefore, requires a high degree of relevancy

in order to admit other crimes into evidence.

The rule is that the prosecution may not introduce

evidence of other criminal acts of the accused unless the

evidence is substantially relevant for some other purpose

than to show a probability that he committed the crime

on trial because he is a man of criminal character.

c . McComzick's Handbook of the Law of Evidence (2d ed. 1972) ,

~c~ormick,

reprinted in J. Kaplan & J. Waltz, Evidence--Cases and Materials 370

(5th ed. 1984) (emphasis added). The list of "other purpose^^^ in

Rule 404(b) sets out elements that may be necessary for the

prosecution~scase and that may, therefore, be relevant to prove

a fact in issue, such as intent, identity, or absence of mistake.

The presence of the list does not imply that anv evidence of prior

acts that tends to show anv purpose on the list is by definition

relevant. For example, if intent is not an issue, then evidence

of other bad acts that demonstrate intent is irrelevant and

therefore inadmissible.

The Just rule prescribes certain technical requirements for

admissibility. The act must be similar, near in time, tending to

establish a common scheme, plan, or system, and more probative than

prejudicial. The majority encounters a problem with the third Just

element. By seizing on the common scheme or plan element of Just

and finding that it looks like the "planu of 404(b), the majority

assumes they are the same thing. It then substitutes Rule 404(b)

for the common scheme element of Just, thus expanding the third

Just element beyond all meaning.

By replacing the narrow common scheme element of Just with

the 404(b) list, we have fallen into the trap warned about by

McCormick:

And so here there is danger that if the judges, trial and

appellate, content themselves with merely determining

whether the particular evidence of other crimes does or

does not fit in one of the approved classes, they may

lose sight of the underlying policy of protecting the

accused against unfair prejudice. The policy may

evaporate through the interstices of the classification.

Reprinted in Evidence--Cases and Materials at 3 7 5 .

The policy of protecting the accused against unfair prejudice

is sadly evaporating in the State of Montana. The majority admits

that evaporation by stating that it is "eliminating the limitation

that evidence is admissible only if it shows a common scheme, plan

or system.t1 As I stated in Sadowski, we may as well just come out

and say that other acts are admissible. Today, over the federal

rule, state rule, and caveats of scholars, we have seen fit to

further erode the presumption of innocence and, indeed, "imperil

the innocent.If

I agree with the majority that the evidence is not admissible

in this case, but do not agree that it was harmless error.

I would reverse.