STATE v POPESCU
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No. 88-546 I N THE SUPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, P l a i n t i f f and Respondent, -vsGEORGE R. POPESCU, Defendant and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court o f t h e Eighth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Chouteau, The H o n o r a b l e Chan ~ t t i e n ,J u d g e p r e s i d i n g . COUNSEL OF RECORD: For Appellant: Moses Law F i r m ; C h a r l e s F. Moses, B i l l i n g s , Montana F o r Respondent: Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , Montana George Schunk, A s s t . A t t y . G e n e r a l , Helena Thomas J . S h e e h y , C o u n t y A t t o r n e y , F o r t B e n t o n , Montana Submitted on B r i e f s : Decided: P .Filed: <.' ,) ! Clerk May 11, 1989 J u n e 6 , 1989 J u s t i c e L. Court. Mr. C. Gulbrandson d e l i v e r e d t h e O p i n i o n o f the D e f e n d a n t Popescu was c o n v i c t e d o f two c o u n t s o f f e l o n y a s s a u l t , one c o u n t o f i n t i m i d a t i o n , and one c o u n t o f c r i m i n a l endanqerment i n a iury t r i a l i n t h e D i s t r i c t Court f o r t h e T w e l f t h J u d i c i a l D i s t r i c t , Chouteau County. He appeals. W e reverse. The dispositive issue i s whether the District Court e r r e d i n r e q u s i n g t o g i v e any o f t h e j u s t i f i a b l e u s e o f f o r c e i n s t r u c t i o n s o f f e r e d by d e f e n d a n t and by t h e S t a t e . The d e f e n d a n t , trial, who was 37 y e a r s old a t the l i v e s a l o n e on a f a r m n e a r F o r t B e n t o n , Montana. 1986 a n d a g a i n in 1987, defendant h i r e d a c o m b i n e r s l e d by J i m R a r k e r o f Yazoo C i t y , cut h i s grain. cut time about 600 crew o f of Tn custom Mi.ssissippi, to I n J u l y and August 1987, R a r k e r and h i s c r e w acres of about 400 a c r e s uncut. g r a i n on d e f e n d a n t ' s farm, They t h e n went t o a n o t h e r j o b . leaving Their v i e w was t h a t t h e r e m a i n i n g 4 0 0 a c r e s o f g r a i n w e r e n o t y e t r e a d y t o be c u t . the lurch. D e f e n d a n t ' s v i e w was t h a t t h e y l e f t him i n He h i r e d a n o t h e r combiner t o c u t t h e r e m a i n i n g grain. The following Saturday, Rarker and a member of his c r e w , H a s t i n g s , went t o d e f e n d a n t ' s f a r m t o c o l - l e c t t h e i r pay f o r t h e work t h e y had done. D e f e n d a n t and t h e c o m b i n e r s had argument d u r i n g which H a s t i n g s swore a t d e f e n d a n t a heated a n d d e f e n d a n t drew a handgun. The n e x t m o r n i n g , B a r k e r and H a s t i n g s t h e n l e f t . Barker and two o f a g a i n drove o u t t o d e f e n d a n t ' s farm. exchanged. version) obtain a crewmembers More h e a t e d words were D e f e n d a n t f i r e d h i s gun e i t h e r i n t o t h e a i r ( h i s o r a t t h e t h r e e men defendant his then came written (their version). t o t h e agreement t h a t apology from Hastings if B a r k e r and B a r k e r would and return to d e f e n d a n t some wooden b l o c k s and a c r e s c e n t wrench, d e f e n d a n t would pay f o r t h e work d o n e . L a t e r t h a t afternoon, Barker and a crewmember returned to defendant's farm with the r e q u e s t e d i t e m s and d e f e n d a n t w r o t e them a c h e c k . T h a t e v e n i n g d e f e n d a n t went t o t h e C i r c l e K s t o r e i n F o r t Benton t o g e t a t a k e - o u t there, drove While h e was s t i l l sandwich. Barker and two o t h e r s up and p a r k e d next to defendant's truck. Then a n o t h e r p i c k u p d r o v e u p a n d p a r k e d behind truck. defendant's The occupants of that truck t e s t i f i e d t h a t t h i s was t h e o n l y a v a i l a b l e s p o t f o r them t o D e f e n d a n t m e t B a r k e r a s d e f e n d a n t was w a l k i n g o u t of park. the store. Defendant outside. a l s o saw t h e o t h e r custom c o m b i n e r s d i s p l a y e d h i s gun when B a r k e r He s e t t l e t h i s r i g h t h e r e and now." said, will- "We Defendant r e t u r n e d t o h i s p i c k u p , y e l l e d a t t h o s e i n t h e t r u c k b e h i n d h i s t o move, t h e n rammed t h a t t r u c k o u t o f t h e way s o t h a t h e c o u l d l e a v e . of that truck's defendant rammed passengers was just getting i t and i n j u r e d h i s k n e e . One out when D e f e n d a n t went home. Defendant was Saturday evening charged incident, with intimidation f o r t h e Sunday m o r n i n g i n c i d e n t , ramming the pickup hearing t h e evidence, out of the in the assault and felony felony a s s a u l t t h e gun i n t h e C i r c l e K i n c i d e n t , for felony for the assault f o r use of and c r i m i n a l endangerment Circle incident. K After t h e c o u r t dismissed t h e count a r i s i n g Saturday evening incident. Defendant was convicted o f t h e remaining charges. trial, A t concerning the defendant defense of offered several justifiable use instructions of force. The c o u r t r e f u s e d them a l l , s t a t i n g , " T h e r e i s no e v i d e n c e a t a l l from which a threat can be aimed at the a u t h o r i z i n g him t o a c t t h e way h e d i d . " object to subject the and self-defense. defendant's offered its proposed own defendant and The S t a t e d i d n o t instructions proposed on j-nstructions this on The c o u r t r e f u s e d them, t o o . T t iury i s t h e duty o f t h e District Court t o i n s t r u c t t h e on every issue or theory which has support in the evidence. P.2d S t a t e v. 893, 897. justifiable S t a t e v. They Starr (19831, 2 0 4 Mont. 210, 664 217, The e l e m e n t s of p r o o f n e c e s s a r y t o e s t a b l i s h use of f o r c e were described by this Court 860, 45 St.Rep. DeMers (Mont. 1988), 762 P.2d in 1901.. are (1) t h a t t h e d e f e n d a n t was n o t t h e a g g r e s s o r , ( 2 ) t h a t t h e d e f e n d a n t r e a s o n a b l y b e l i e v e d t h a t h e was i n imminent danger o f u n l a w f u l harm, and ( 3 ) t h a t t h e d e f e n d a n t DeMers , used r e a s o n a b l e f o r c e n e c e s s a r y t o d e f e n d h i m s e l f . 763 P.2d at defendant's 865. In testimony sufficient evidence DeMers, to to the Court determine submit to reviewed the there was whether the jury the issue of j u s t i f i a b l e use of force. In his the present case, Saturday evening defendant argument with testified the t h a t during combiners, when H a s t i n g s swore and began r u n n i n g toward d e f e n d a n t , " I t h o u g h t he f u l l y i n t e n d e d t o a t t a c k me." told that Hastings irresponsible." He was He s t a t e d t h a t he had been "real testified that handgun and t u r n e d t o f a c e H a s t i n g s , me. crazy he then ... wild, grabbed his s a y i n g "keep away from I' A s t o t h e Sunday morning i n c i d e n t , d e f e n d a n t t e s t i f i e d t h a t when Barker and t h e two o t h e r crewmembers came t o t h e Popescu farm, truck. in." t h e y p u l l e d up r a p i d l y r i g h t i n f r o n t o f h i s " I t was v e r y h o s t i l e and a g g r e s s i v e when h e p u l l e d He t e s t i f i e d t h a t he feared a 3-against-l f i g h t and a gun i n t o t h e a i r . Defendant t e s t i f i e d t h a t when he looked o u t t h e window o f t-he C i r c l e K on Sunday e v e n i n g , he saw Barker p u l l i n a c r o s s t h e p a r k i n g l o t right diagonally at m y pickup, the d r i v e r ' s d o o r , and p u l l up r i g h t n e x t t o it j u s t a s c l o s e a s he t h o u g h t he c o u l d g e t a t t h e time. And r i g h t behind t h a t came a n o t h e r p i c k u p , a r e d and w h i t e pickup. Parked behind m p i c k u p . y I was blockaded i n a t t h a t p o i n t . He stated that when he walked out of the store and met Barker, he had his gun in his hand, pointing at the ground. After Barker said, "We will settle this, right here and now," Barker noticed the gun and asked, "Are you going to fire that here in front of everybody?" Defendant testified that he replied, "I will do what is necessary." Defendant testified that when he got into his pickup he "thought I better get out of here. I am going to have to get out of here." He stated that he called out to the occupants of the pickup behind his He then to move their vehicle, but that they ignored him. "lightly tapped" the pickup behind him with his truck, hut the occupants continued to ignore him so he "backed out and moved the pickup out of my wa17." be conclude that under the circumstances presented in 7 this case, the defendant's testimony was sufficient to warrant submitting to the jury the issue of whether defendant exercised justifiable use of force. Defendant's counsel properly entered his obfection to the District Court's refusal to give such instructions. We hold that it was error to fail to instruct on this issue. Because of this error, we reverse. The defendant raised several other issues in his appeal. The first of these is whether the District Court erred in refusing to permit a licensed clinical psychologist to testify in defendant's behalf. The defense offered this testimony under 46-14-102, MCA, which relates to evidence that defendant suffered from a mental disease or defect. However, the defense did not give pretrial notice of relying on mental disease or defect, as required bv S 46-14-201, MCA. We conclude that under these circumstances the court did not err in refusing to allow the testimony. Defendant also raised three issues relating to whether certain witnesses should have been allowed to testify or not. These issues concern failure of the State to provide previous notice of witnesses who testified on rebuttal, failure of the court to grant a continuance to allow the defense to pursue possible exculpatory testimony, and failure of the court to issue certificates for subpoenas for out-of-state witnesses desired by the defense. These issues may or may not re-arise on retrial. We will not consider them now. Finally, defendant argues that the evidence was insufficient to convict him of intimidation for the Sunday morning incident. Since the evidence may not be identical on retrial, we decline to address the issue at this time. Reversed and remanded for retrial. 9/ * y w A ~ We concur: hief Justice M
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