STATE v BUCKINGHAM
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No. 89-315 I N THE SUPREME COURT O F THE S T A T E O F MONTANA 1989 S T A T E O F MONTANA, P l a i n t i f f and R e s p o n d e n t , -vsHAL J . BUCKINGHAM, D e f e n d a n t and A p p e l l a n t . - A P P E A L FROM: - ,- D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D $ $ @_- i c s . I n and f o r t h e C o u n t y of Y e l l o w s t o n e , CJ ; o : T h e H o n o r a b l e D i a n e G . B a r z , J u d g e presiding61 -4 ;3 -4 COUNSEL O F RECORD: For A p p e l l a n t : B r a d J. A r n d o r f e r , Billings, Montana For R e s p o n d e n t : Hon. Marc Racicot, Attorney General, Helena, Montana General, Helena Harold Hanser, County Attorney; C u r t i s Bevolden, Deputy County Atty., B i l l i n g s , Montana P a u l D. J o h n s o n , A s s t . A t t y . S u b m i t t e d on B r i e f s : Decided: Filed: Oct. 13, 1 9 8 9 December 1 4 , 1989 Justice Fred J. Fleber delivered the Opinion of the Court. Defendant, Hal J. Buckingham, was charged in the District Court of the Thirteenth Judicial District, Yellowstone County, with felony assault purs~xant to 5 45-5-202 (2)(b), MCA, for firing a shotqun at a car driven by Jay Popp. The jury found defendant guilty as charged. He was sentenced to five years imprisonment in the Montana State Prison and fined $500.00. The prison sentence was suspended. Defendant appeals. We affirm. The issues before us on appeal are: 1. Was the State's motion for leave to file an information supported by probable cause? 2. Was the defendant denied his right to a speedy trial? 3. Did the District Court err in denying defendant's motion in limine? 4. Was the jury's verdict supported by substantial evidence? On the evening of February 29, 1988, Billings police officer Irvan Floth investigated a report of a firearm discharge at defendant's home. He examined a black, 12-gauge, Winchester Defender shotgun, with a pistol-style grip, an extended magazine and a serial number of L2037954. Floth testified that this particular type of gun was a defensive weapon capable of firing up to eight rounds without reloading. Defendant testified that he was "playing with the gun" when it accidentally fired, damaging a window. Because it was an accidental discharge, no citation was issued. Later that same evening, about 10:30 p.m., while driving to his house, the victim, Jay Popp, noticed a vehicle parked in his driveway with its lights shining on his house. As Popp approached, the other car suddenly pulled out and sped off. Popp pursued t h e c a r i n a high-speed chase. Suddenly t h e v e h i c l e Popp was c h a s i n g t u r n e d 90 d e g r e e s i n t h e roadway and s t o p p e d . A s Popp approached, s h o t a t him. A p i e c e o f g l a s s from t h e w i n d s h i e l d h i t him i n t h e neck. someone from t h e o t h e r c a r The s h o o t i n g c o n t i n u e d and i n h i s f e a r , Popp h i d on t h e f l o o r of h i s c a r , making it d i f f i c u l t f o r Popp t o g e t a detailed testified description that he of the saw t h a t car or his t h e gun was assailant. He " a l a r g e gun," "a s h o t g u n " and t h a t t h e c a r "looked l i k e some k i n d of a R a b b i t , o r s m a l l c a r l i k e t h a t , " and a " d i r t y " " r e d d i s h c o l o r . " a l s o t e s t i f i e d t h a t h i s a s s a i l a n t was a male. He Popp was a b l e t o e s c a p e t h e s c e n e by d r i v i n g h i s c a r w h i l e s i t t i n g on t h e floor. He d r o v e back toward h i s home u n t i l t h e c a r s t a l l e d a s a r e s u l t o f damage done i n t h e s h o o t i n g . He made h i s way home and t h e n r e p o r t e d t h e i n c i d e n t t o t h e p o l i c e . Upon examination, the sheriff's department determined t h a t t h e r e was e x t e n s i v e damage t o t h e l e f t f r o n t and f r o n t end o f P o p p ' s v e h i c l e caused by s h o t g u n p e l l e t s . i n g by f o l ~ l o w i n g a t r a c k of radiator fluid, Backtrack- t h e d e p u t y was a b l e t o v e r i f y P o p p ' s s t o r y of what had happened. There were s h o t g u n s h e l l s and a s k i d mark on t h e r o a d where t h e a s s a i l a n t ' s c a r had come t o a sudden s t o p , and g l a s s and r a d i a t o r f l u i d where P o p p ' s c a r was s h o t . A few d a y s l a t e r , t h e s h e r i f f ' s o f f i c e responded to a c a l l t o p i c k up a s h o t g u n which had been found i n a d i t c h a l o n g t h e r o a d i n t h e a r e a of t h e s h o o t i n g . The shotgun b o r e t h e s e r i a l number L2037954, and was t h e same gun i n v o l v e d i n the accidental discharge involving t r a c e d t o t h e s t o r e t h a t s o l d it. it had been s o l d t o d e f e n d a n t . defendant. The gun was The s t o r e ' s books r e v e a l e d The Montana S t a t e Crime Lab t h e n a n a l y z e d t h e s h e l l s found a t t h e s c e n e o f t h e s h o o t i n g and e s t a b l i s h e d t h a t t h e s h e l l s c o u l d o n l y have been f i r e d from d e f e n d a n t ' s s h o t g u n . The investigation disclosed o r a n g e Volkswagen R a b b i t . shooting incident, that that defendant owned an I n March, a b o u t a week a f t e r t h e c a r had gone o v e r t h e edge of the c l i f f s near B i l l i n g s . An i n f o r m a t i o n was f i l e d a g a i n s t d e f e n d a n t on A p r i l 29, 1988, charging him with 45-5-202(2) ( b ) , MCA. Motion to Dismiss give probable On May alleging cause felony a s s a u l t . felony 25, that assault 1988, the pursuant defendant information to filed failed t o charge defendant with t h e S a to c r i m e of The D i s t r i c t Court d e t e r m i n e d t h a t p r o b a b l e c a u s e d i d e x i s t and d e n i e d t h e motion. Defendant was o r d e r e d t o a p p e a r i n c o u r t on October 6 , 1988. Due t o h i s f a i l u r e t o a p p e a r , a p l e a o f n o t g u i l t y was e n t e r e d by t h e c o u r t on h i s b e h a l f . f o r December 5 , 1988. T r i a l d a t e was t h e n s e t On November 23, 1988, d e f e n d a n t moved t o d i s m i s s f o r l a c k of speedy t r i a l due t o t h e l e n g t h o f t i m e between After arrest defendant November 29, and the date personally 1988, and s e t f o r t h e e n t r y of appeared entered a with plea of a plea. his attorney not guilty, on his motion was d e n i e d . A t r i a l was h e l d a s s c h e d u l e d and t h e j u r y d a n t g u i l t y a s charged. motion guilty. for new Again, cluding t h a t trial found d e f e n - He t h e n made motions t o d i s m i s s , or modification of verdict to t h e D i s t r i c t Court d e n i e d h i s m o t i o n s , t h e r e was not con- s u b s t a n t i a l evidence t o support t h e jury's verdict. I Was t h e S t a t e ' s motion f o r l e a v e t o f i l e an i n f o r m a t i o n s u p p o r t e d by p r o b a b l e c a u s e ? Defendant c o n t e n d s t h a t because t h i s c a s e was based on c i r c u m s t a n t i a l evidence, t h e D i s t r i c t Court abused i t s d i s - c r e t i o n i n n o t h o l d i n g a p r e l i m i n a r y h e a r i n g , and t h e r e were not s u f f i c i e n t f a c t s t o j u s t i f y f i l i n g t h e information. He maintains that he was not identified, his vehicle was not identified, and "only the fact that it was his gun used in the commission of the crime" connected him to the offense. He asserts that a preliminary hearing would have shown an unwarranted prosecution. Defendant filed a motion to dismiss on the basis that there was not probable cause to support the information. Relying on 5 46-11-201, MCA, the State maintains that the information was proper and there was no abuse of discretion. The county attorney may apply directly to the district court for permission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judge may require. ' If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge shall grant leave to file the information, otherwise the application shall be denied. Section 46-11-201(1), MCA. See State v. Bradford (1984), 210 Mont. 130, 139, 683 P.2d 924, 928, 929. We agree. The State need not demonstrate a prima facie case in the information but need only show probable cause to believe an offense has been committed. In Bradford, 683 P.2d at 929, we stated: Similarly, evidence to establish probable cause need not be as complete s the evidence necessary to [TIhe deterestablish guilt. (Citation omitted. ) mination whether a motion to file an information is supported by probable cause is left to the sound discretion of the trial court. Thus, the scope of review is one of detecting abuse in the exercise of that discretion. Defendant was charged with felony assault pursuant to S 45-5-202 (2)(b), MCA. A person commits that offense if he purposely ox knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon. The facts set forth in the affidavit showed that the defendant accidentally discharged his shotgun in his home the night of the incident for which he was charged; the police were called to investigate and the serial number of his gun was reported; an hour and a half later, Popp was shot at by a male person from another car, causing considerable damage to Popp's car; Popp described the perpetrator's car as a dirty reddish-color, possibly a Rabbit and defendant's car fit that description; the shotgun shells collected at the scene were determined by experts to have been fired from defendant's gun; and defendant's gun was discovered in a ditch near where the shooting took place. We affirm the District Court's holding that the State's motion for leave to file an information was supported by probable cause. I1 Was the defendant denied his right to a speedy trial? Defendant contends that he was denied his right to a speedy trial, pointing out that 220 days elapsed from the date of his arrest to trial. He urges that a delay of 220 days gives rise to a rebuttable presumption of prejudice. He maintains that the reason for the delay was due to an oversight by the State in failing to set an arraignment date. Finally he urges that he was prejudiced by the delay due to the "faded" memories of the witnesses and the victim at the time of trial. The State concedes that there was an oversight on its part regarding the setting of a date for arraignment. It maintains that there were 58 days chargeable to the defendant which must be deducted from the total delay. Thus, it is the State's position that only 162 of the 220 days are chargeable to the State, which does not constitute a sufficient length of time to raise a presumption of prejudice to the defendant. It also contends that even if the 162-day delay is presumptively prejudicial, consideration of the reason for the delay and whether there was actual prejudice would excuse the delay. The reason for the delay was considered and explained at length by the District Court. Both the Federal and State Constitutions guarantee defendant a right to a speedy trial. In determining the question of prejudice pursuant to Mont. Const., Art. 11, Sec. 24, this Court analyzes and weighs four factors. State v. The four Wombolt (1988), 753 P.2d 330, 45 St.Rep. 714. factors are: 1. length of delay; 2. reason for the delay; 3. whether defendant asserted the right; and 4. whether defendant was prejudiced. If the length of delay was not presumptively prejudicial, the other factors need not be examined. However, no single factor is determinative. See State v. Palmer (1986), 223 Mont. 25, 723 P.2d 956. As defendant asserts, there was a delay of 220 days in this case from the time of arrest to the time of trial. The length of this delay is enough to be presumptively prejudicial. State v. Waters (1987), 228 Mont. 490, 743 P.2d 617 (277 days); Palmer, 723 P.2d 956 (256 days); State v. Chavez (1984), 213 Mont. 434, 691 P.2d 1365 (214 days). The second factor of the Wombolt test is the reason for delay. The burden is on the State to show there was a reasonable excuse for delay in bringing defendant to trial. The State v. Cutner (1984), 214 Mont. 189, 692 P.2d 466. District Court found that the reason for the delay was of significant importance in this case and stated: Through an oversight, the Defendant did not enter a plea in the case at bar. A delay of 154 days occurred between the time of Defendant's arrest and the State's filing of a motion to compel entry of plea The reason for the delay between arrest and date set for the entry of a plea (October 6, 1988), was an oversight by the State. The State and this Court assumed Defendant had entered a plea at the time the information was filed or shortly thereafter. According to the Montana Supreme Court in "The right to a speedy trial State v. Waters, is designed to prevent oppressive tactics by the State." The 154 day delay, in the case at bar, was due to an oversight by the State. There is no evidence that the State engaged in bad faith or oppressive tactics, and the Defendant does not contend as much in his brief supporting his motion to dismiss for lack of speedy trial. .... ... We agree with the District Court that there is a lack of any evidence of oppressive tactics by the State in this case. The third factor to consider is whether the defendant asserted his right to a speedy trial. This was done when defendant filed his motion to dismiss before the trial date. See Wombolt (1988), 753 P.2d 330. The fourth factor to consider is whether defendant was prejudiced by the delay. The District Court concluded that the defendant was not prejudiced by the delay and that although the delay between defendant's arrest and the State's motion to compel entry of plea was attributable to the State, defendant caused further delay himself by failing to appear and enter a plea. In Palmer, this Court identified the interests of a defendant which may be prejudiced by a delay. The interests are: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense wSll he impaired. Barker, 407 U.S. at 532. (1) (2) Palmer, 7 2 3 P.2d a t 959. Oppressive p r e t r i a l i n c a r c e r a t i o n was n o t a f a c t o r i n t h i s c a s e . Furthermore, t h e record i s d e v o i d o f any e v i d e n c e t h a t d e f e n d a n t s u f f e r e d from a n x i e t y and d o e s n o t support defendant's was i m p a i r e d . argument t h a t h i s d e f e n s e W a f f i r m t h e D i s t r i c t Court's conclusion t h a t e d e f e n d a n t was n o t d e n i e d h i s r i g h t t o a speedy t r i a l . Did t h e D i s t r i c t C o u r t e r r i n d e n y i n g d e f e n d a n t ' s motion i n limine? Defendant c o n t e n d s t h e D i s t r i c t C o u r t e r r e d by denying h i s motion i n l i m i n e t o e x c l u d e p h o t o g r a p h s of defendant's c a r o r any t e s t i m o n y r e g a r d i n g t h e c a r b e c a u s e Popp c o u l d n o t clearly identify or describe the car used in the crime. Defendant u r g e s t h a t P o p p ' s own t e s t i m o n y p r o v e s t h a t he was u n c e r t a i n a b o u t what type of c a r was u s e d i n t h e c r i m e o r what i t looked l i k e . Popp t e s t i f i e d t h a t t h e c a r was " d i r t y . And it was k i n d o f r e d d i s h c o l o r . it was s o v e r y d a r k . " ted I couldn't t e l l , although, Defendant p o i n t s o u t t h a t Popp admit- s e e i n g a Plymouth Horizon t h a t h e t h o u g h t might b e t h e v e h i c l e i n v o l v e d and c a l l e d t h e p o l i c e a b o u t it. The State maintains that p u r s u a n t t o Rule 4 0 2 , M.R.Evid. the evidence was relevant I t contends t h a t t h e photos t o g e t h e r with Popp's testimony c l e a r l y tended t o p l a c e defendant i n t h e a s s a i l a n t ' s v e h i c l e a t t h e time of t h e shooting, and was t h e r e f o r e r e l e v a n t . Rule 4 0 1 , M.R.Evid., W agree. e d e f i n e s r e l e v a n t evidence as: e v i d e n c e h a v i n g any tendency t o make t h e e x i s t e n c e o f any f a c t t h a t i s o f consequence t o t h e d e t e r m i n a t i o n of t h e a c t i o n more p r o b a b l e o r l e s s p r o b a b l e t h a n i t would be w i t h o u t t h e e v i d e n c e . Relevant e v i d e n c e may i n c l u d e e v i d e n c e b e a r i n g upon t h e c r e d i b i l i t y of a w i t n e s s o r h e a r s a y d e c l a r a n t . In Derenberger v. Lutey (19831, 207 Mont. 1, 9, 674 P.2d 485, 489, we stated the test is: ". . . whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. The standard used to measure this acceptable probative value is 'any tendency to make the existence more probable or less probable of any fact than it would be without the evidence.' This standard rejects more stringent ones which call for evidence to make the fact or proposition for which it is offered more probable than any other. It is meant to allow wide admissibility of circumstantial evidence limited only by Rule 403 or other special relevancy rules in Article IV." (Citations omitted. ) . . . Popp described the car as he remembered it and the photographs supported his testimony. It is for the trier of fact to decide whether it is the same car or not. We hold the District Court properly denied defendant's motion in limine. Was the jury's verdict supported by substantial evidence? Defendant filed a motion for a new trial or a directed verdict pursuant to 5 46-16-702, MCA. The District Court denied this motion. Defendant contends that the evidence was wholly circumstantial and implies that to be enough to leave a "reasonable doubt" in the minds of the jury. He therefore maintains that he should have been acquitted. The standard of review on issues of substantial evidence is that the conviction cannot be overturned if evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt. State v. Tome (19871, 228 Mont. 398, 742 P.2d 479. The decision is within the sound discretion of the trial court and will not be overturned absent a clear abuse of discretion. State V. Howie (1987), 228 Mont. 497, 744 P.2d 156. Circumstantial evidence alone is sufficient to obtain a conviction. It must only be of such a "quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt," and all the facts and circumstances must be considered collectively. State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23. We hold that the evidence would allow a rational trier of fact to find the defendant guilty of felony assault beyond a reasonable doubt. Affirmed. .@P +- & Justices
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