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No. 8 9 - 1 3 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vsTONI LEA OTTWELL,
Defendant and Appellant.
District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
Michael Donahoe, Helena, Montana
Hon. Marc Racicot, Attorney General, Helena, Montana
James Yellowtail, Asst. Atty. General, Helena
McGrath, County Attorney; Carolyn A. Clemens,
Deputy County Attorney, Helena, Montana
Submitted on Briefs:
July 7, 1 9 8 9
September 14, 1 9 8 9
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
The jury empaneled in the District Court for the First
Judicial District, Lewis and Clark County, found Toni Lea
Ottwell, the defendant, guilty of felony assault pursuant to
45-5-202 (2)(b), MCA.
The District Court sentenced the
defendant to ten years at the Montana State Prison and
suspended the sentence in its entirety subject to conditions.
Defendant appeals. We affirm.
The issues raised on appeal are:
1. Whether the exclusionary rule bars admission of
evidence of a person's criminal conduct which occurred in
response to a Fourth Amendment violation.
2. Whether a defendant who knowingly
causes reasonable apprehension of serious bodily injury by
use of a weapon is properly charged with felony assault
pursuant to $ 45-5-202 (2)(b), MCA.
3. Whether the District Court erred by instructing the
jury as to the definition of the term "knowingly," as set
forth in § 45-2-101(33), MCA, when a defendant is charged
under 5 45-5-202, MCA, with felony assault.
4. Whether the defendant was denied a fair trial under
the doctrine of "cumulative error."
In December, 1987, Toni Lea Ottwell, the defendant, was
a resident at the Mountain View School, a girls' correctional
facility located north of Helena, Montana. Ottwell and four
other residents of the school escaped from the facility on
December 24, 1987.
Two of the girls were apprehended the
following day in Helena. The remaining escapees, including
Ottwell, obtained a .44 magnum caliber handgun from a
residence in Clancy, Montana, returned to Helena and rented a
room at a local hotel.
On December 26, 1987, two members of the Mountain View
School staff, William Unger, Superintendent, and Don
Thompson, Social Worker, discovered that the girls were at
the hotel. Unger and Thompson went to the hotel, confirmed
with the hotel manager that the girls were in the hotel, and
were given a key to the girls' room by the manager. After
Unger knocked on the door of the girls' room and identified
Ottwell's voice, he used the key to open the door and both
men entered the room.
Unger told the girls to get ready,
that he was taking them back with him. Shortly thereafter
Ottwell picked up the loaded handgun and pointed it at the
two men. She told Thompson to close the door and stated that
the gun was loaded and that she wasn't afraid to use it.
Thompson refused to close the door but after a few minutes of
trying to persuade Ottwell to put down the gun, Unger and
Ottwell and the other two girls
Thompson left the room.
escaped through the hotel window and were apprehended by the
police later that evening.
Ottwell, a minor, was charged as an adult with the
offense of felony assault by an Information filed in the
District Court for the First Judicial District, Lewis and
Clark County. A jury trial commenced on May 31, 1988 and on
June 1, 1988, the jury returned a verdict of guilty.
October 25, 1988, final judgment and sentence was entered.
Ottwell was sentenced to ten years at the Montana State
Prison. The District Court suspended Ottwell's sentence in
its entirety subject to conditions. Ottwell appeals.
The first issue raised on appeal is whether the
exclusionary rule bars admission of evidence of a person's
criminal conduct which occurred in response to a Fourth
Ottwell argues that the entry of her hotel room by Unger
and Thompson was unconstitutional and that evidence of all
events subsequent thereto, including her felonious assault,
should have been suppressed. The facts are undisputed that
Unger and Thompson, state employees from the girls'
correctional facility, entered Ottwell's hotel room without
permission or without a warrant.
arguendo that an illegal entry occurred, we uphold the
District Court's decision to deny Ottwell's motion to
suppress evidence of her criminal conduct which occurred in
response to a Fourth Amendment violation.
The Fourth Amendment of the United States Constitution
and Article 11, 5 11 of the Montana Constitution affords all
persons the freedom from unreasonable governmental searches
Thus, absent exigent circumstances, police
officers and other government officials must obtain a search
warrant based upon probable cause before entering a home or
making an arrest. Payton v. New York (1980), 445 U.S. 573,
590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653; State v.
O'Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-64.
The exclusionary rule, which bars evidence obtained as a
result of an unconstitutional search or seizure, is the
primary vehicle which helps to ensure protection from an
unreasonable governmental search or seizure.
Wonq Sun v.
United States (1963), 371 U.S. 471, 484-85, 83 S.Ct. 407,
415-16, 9 L.Ed.2d 441, 453. However, courts have refused to
extend the exclusionary rule to suppress evidence of a
person's independent criminal conduct which occurred in
response to an unconstitutional search or seizure.
e.g., People v. Klimek (I11.App. 1981), 427 N.E.2d 598; State
v. Boilard (Me. 1985), 488 A.2d 1380; State v. Burger
(0r.Ct.App. 1982), 639 P.2d 706; State v. Kittleson (Minn.
1981), 305 N.W.2d 787; Commonwealth v. Saia (Mass. 19771, 360
Likewise, under the facts of this case, we
refuse to extend the exclusionary rule to suppress evidence
of a person's assaultive conduct towards a state employee who
committed a Fourth Amendment violation.
Such evidence does
not constitute the "fruit of the poisonous tree" and thus the
purpose of the exclusionary rule--to protect a person from
unreasonable searches or seizures through suppression of
evidence--would not be accomplished by its application in
such a situation. On the contrary, to allow a person whose
Fourth Amendment rights were violated to respond with
unlimited violence towards the violator and then to grant the
person immunity via the exclusionary rule, would create
intolerable results. Such a ruling would allow, and possibly
even encourage, more violence.
We therefore uphold the
District Court's decision to deny Ottwell's motion to
suppress evidence of Ottwell's independent criminal conduct
which occurred as a response to a Fourth Amendment violation.
The second issue raised on appeal is whether a defendant
who knowingly or purposely causes reasonable apprehension of
serious bodily injury by use of a weapon is properly charged
with felony assault pursuant to § 45-5-202(2) (b), MCA.
Ottwe11 argues that the District Court erred by not
granting her motion to dismiss on the ground that the
Information, by its terms, only alleged misdemeanor assault
as defined in $ 45-5-201(1)(d), MCA. This statute provides
in pertinent part that
A person commits the offense of
assault if he:
purposely or knowingly causes
reasonable apprehension of bodily injury
The purpose to cause
reasonable apprehension or the knowledge
that reasonable apprehension would he
caused shall be presumed in any case in
which a person knowingly points a firearm
at or in the direction of another
. . .
Specifically, Ottwell attempts to argue that the language of
this misdemeanor statute--"shall be presumed in any case in
which a person knowingly points a firearm at or in the
direction of anotherM--is a conclusive presumption that
prevents the State from charging a defendant with felony
assault once the State proves that the defendant pointed a
gun towards another. We disagree.
Ottwell fails to acknowledge the difference in proof
between the misdemeanor assault statute, § 45-5-201, MCA, and
the felony assault statute, $ 45-5-202, MCA.
assault statute provides in pertinent part that
(2) A person commits the offense of
felony assault if he purposely or
(b) reasonable apprehension of serious
bodily injury in another by use of a
Section 45-5-202(2) (b), MCA.
The felony assault statute
addresses the reasonable apprehension of serious bodily
injury and the misdemeanor assault statute addresses the
reasonable apprehension of bodily injury.
definitions of "serious bodily injury" and "bodily injury"
are drastically different and thus require a different degree
of proof. See, 5 45-2-101 (5) and (59), MCA. Merely because
the misdemeanor statute contains a presumption regarding a
person who knowingly points a firearm at or in the direction
of another, does not make the statute the exclusive vehicle
for prosecution when such a conduct occurs. State v. Crabb
(Mont. 1988), 756 P.2d 1120, 1124, 45 St.Rep. 966, 971. A
county attorney has the discretion to charge a defendant
under either § 45-5-201, MCA or § 45-5-202, MCA, and a
subsequent conviction will stand if the evidence supports the
On March 29, 1988, the County Attorney for Lewis and
Clark County filed an Information alleging that Ottwell
"purposely or knowingly caused reasonable apprehension of
serious bodily injury in Bill Unger and Don Thompson . . . by
pointing a gun at them and threatening to shoot them
The facts of this case supports the proposition that Ottwell
knowingly or purposely used a weapon to cause reasonable
apprehension of serious bodily injury.
The District Court
therefore properly denied Ottwell's motion to dismiss.
The third issue raised on appeal is whether the District
Court erred by instructing the jury as to the complete
definition of the term "knowingly," as set forth in
§ 45-2-101(33), MCA, when a defendant is charged with felony
assault under 5 45-5-202, MCA.
The definition of
"knowingly" is set
§ 45-2-101(33), MCA, as follows:
"Knowingly"--a person acts knowingly with
respect to conduct or to a circumstance
described by a statute defining an
offense when he is aware of his conduct.
or that the circumstance exists.
person acts knowingly with respect to the
result of conduct described by a statute
defining an offense when he is aware that
it is highly probable that such result
will be caused by his conduct.
particular fact is an element of an
offense, such knowledge is established if
a person is aware of a high probability
of its existence. Equivalent terms such
as "knowing" or "with knowledge" have the
The jury was instructed, with
"knowingly," as follows:
A person acts knowingly:
(1) when he is aware of his conduct; or
constitutes a crime; or
(3) when he is aware there exists the
high probability that his conduct will
cause a specific result; or
(4) with respect to a specific fact, when
he is aware of a high probability of that
Ottwell attempts to argue that not all of the definitions
contained in § 45-2-101(33), MCA, apply to every alleged
criminal violation and therefore the District Court erred in
giving the entire definition when a person is charged with
one specific crime.
Ottwell argues that if charged under
S 45-5-202 (2)(b), MCA, the only part of the definition that
is applicable is whether an actor purposely or knowingly
caused a specific result, namely, the apprehension of serious
bodily injury, which is found in subsection 3 of the
instruction. We disagree.
In Montana, a person does not need to "form the intent
to commit a specific crime or intend the result that occurred
to be found guilty of knowingly committing a crime." State
v. Blalock (Mont. 1988), 756 P.2d 454, 456, 45 St.Rep. 1008,
1010. Conviction for the offense of felony assault thus does
not require proof of specific intent. On the contrary, an
instruction suggesting that specific intent to commit a
felony assault is required would be erroneous. However, the
District Court properly gave the jury the entire definition
for "knowingly." Previously, when the requisite intent was
"knowledge" or "purpose," this Court has held that the jury
was entitled to a complete definition of "knowledge" as set
out in the statute. State v. Larson (1978), 175 Mont. 395,
402, 574 P.2d 266, 270.
We therefore uphold the District
Court's decision in instructing the jury on the entire
definition for "knowingly."
The last issue raised on appeal is whether the defendant
was denied a fair trial under the doctrine of "cumulative
The doctrine of cumulative error "refers to a number of
errors which prejudice defendant's right to a fair trial."
State v. Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep.
Ottwell argues that five alleged errors
prejudiced her right to a fair trial and therefore invoked
the cumulative error doctrine. The first alleged error is
that the District Court admitted, over Ottwell's objection,
the State's Exhibit Number 1, a letter from Unger to
Thompson. On appeal, Ottwell fails to argue the basis of her
objection and then merely argues that the letter was not
furnished by the State in discovery as a statement of a
witness. The record demonstrates otherwise. The letter was
read into the record by the District Court in the presence of
Ottwell and her counsel on May 18, 1988, two weeks prior to
In light of the record, Ottwell's argument on
this alleged error lacks merit.
The second alleged error is that the District Court
admitted part of a written report prepared by Unger and given
to a police officer.
Specifically, Ottwell argues that a
proper foundation was not laid for the admission of the
In light of the record, this
assertion by Ottwell also lacks merit.
At trial, Unger
testified on cross-examination that he did not recall the
exact statements Ottwell made during the hotel room incident.
He also testified that he had previously given a statement to
the police regarding Ottwell's statements at a time when his
recollection was more accurate. He identified a copy of his
statement on redirect examination and was then allowed to
read the relevant portion into the record. The statement in
question therefore constitutes an exception to the hearsay
rule under Rule 803(5), M.R.Evid.
Determination of whether a
proper foundation has been laid lies in the discretion of the
District Court and may not be overturned absent a clear abuse
of discretion. State v. McKenzie (1978), 177 Mont. 280, 303,
581 P.2d 1205, 1219. The record indicates that the proper
foundational evidence was before the District Court at the
time admission of the statement was requested and thus we
find that the District Court did not abuse its discretion.
The third alleged error raised by Ottwell is that the
District Court admitted evidence of additional assaultive
behavior. Ottwell first attempts to argue that it was error
to allow Unger to testify that, in his belief, Ottwell was
capable of shooting him.
Ottwell failed to object to this
testimony at trial.
The matter is therefore deemed waived
under § 46-20-104(2), MCA. In addition, Ottwell asserts that
Thompson was improperly allowed to testify that she pointed a
gun at Thompson outside of the hotel room. Ottwell fails to
state the reason for her objection to the foregoing
We decline to provide a possible reason or
explanation for Ottwell's unfounded assertions. We therefore
find that no error resulted under these allegations.
The fourth alleged error is that a statement made by
Ottwell was improperly admitted into evidence.
escapee testified that Ottwell stated that she should have
shot her victims.
Ottwell argues that this statement was
hearsay and not relevant.
The statement is
clearly a relevant indication of Ottwell's state of mind and
awareness of her actions. Further, the statement was made by
Ottwell, a party to the case, and is therefore not within the
definition of hearsay.
See, Rule 801(d) (2)(A), M.R.Evid.
Ottwe11 also alleges that the District Court erred by
admitting "other crimes" evidence in violation of State v.
Just (1979), 184 Mont. 262, 602 P.2d 957. On appeal, Ottwell
fails to identify the objectionable evidence and cites no
authority. We therefore find that the District Court did not
err on this issue. In light of finding no errors on the part
of the District Court, we find that the cumulative error
doctrine is not applicable in this case.
Mr. Justice John C. Sheehy, dissenting:
Years ago, the Congress enacted a "no-knock" provision
empowering federal agents (notably the FBI) to burst into
rooms or apartments occupied by persons whom the agents
suspected of crime.
This patently unconstitutional law
passed the U.S. Senate with but one dissenting vote. That
dissenting vote, we can be proud to state, was cast by the
Senator from Montana, the Honorable Lee Metcalf. The rest of
the Senate bowed to what it perceived to be public pressure
and forsook the Constitution.
Two years later an embarrassed Senate rescinded and
revoked its erroneous actions.
This is a "no-knock" case and I dissent.
Mr. Justice William E. Hunt, Sr.:
I join in the dissent of Justice Sheehy.