06/30/2017
DA 15-0340
Case Number: DA 15-0340
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 163
STATE OF MONTANA,
Plaintiff and Appellee,
v.
OMBLEO J. DANIELS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC-13-160
Honorable Daniel A. Boucher, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Bureau
Chief, Assistant Attorney General, Helena, Montana
Gina Dahl, Hill County Attorney, Havre, Montana
Submitted on Briefs: May 3, 2017
Decided: June 30, 2017
Filed:
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 The State charged Ombleo Daniels with felony aggravated burglary, misdemeanor
assault, and misdemeanor criminal mischief. Before the close of trial, the State dropped
the assault charge. Daniels, who represented himself at trial, proposed a jury instruction
on lesser-included offenses of aggravated burglary. The District Court rejected his
proposed instruction. A Hill County jury convicted Daniels of aggravated burglary and
criminal mischief. Daniels argues on appeal that the court abused its discretion when it
refused to instruct the jury on the lesser-included offense of assault.1
¶2 We reverse.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 In the early morning of November 1, 2013, Mark Loney called 9-1-1 and reported
that Daniels had kicked in the door to Loney’s apartment and assaulted him. Police officers
responded to the scene and observed that Loney’s thin, wooden apartment door “had been
broken in” and that the handle was still locked. They observed that Loney was bleeding
from a cut on his forehead.
¶4 Daniels’s son and the son’s mother, Rachelle, had stayed at Loney’s apartment the
night before, on Halloween. Daniels had expected his son to return to his home after trick-
or-treating. When his son did not return, Daniels arrived at Loney’s apartment around 2:30
a.m. and took his son home with him. Daniels returned to Loney’s apartment at around
1
Daniels does not appeal his criminal mischief conviction.
2
5:00 a.m. According to Loney, Daniels kicked in the door, approached Loney, who was
asleep on the couch in the living room, and began punching Loney in the face.
¶5 The State charged Daniels with felony aggravated burglary under § 45-6-204(2),
MCA, misdemeanor assault under § 45-5-201(1)(a), MCA, and misdemeanor criminal
mischief under § 45-6-101(1)(a), MCA. Daniels pleaded not guilty to the charges. He
chose to represent himself at trial after his counsel withdrew. The District Court appointed
standby counsel for Daniels.
¶6 At trial, Daniels disputed Loney’s account that he had kicked down the door to
Loney’s apartment and assaulted Loney on the couch. Daniels instead asserted that when
he returned to Loney’s apartment at around 5:00 a.m., he knocked on the door, Loney came
out of the apartment, and the two began arguing. Daniels testified that Rachelle locked the
door behind the two men out of fear. Daniels said that Loney pushed him in the chest, that
he pushed Loney back, and that Loney then “started swinging” at Daniels. Daniels testified
that he then put Loney in a headlock, and that during the scuffle the two men
unintentionally fell through the front door. Daniels testified that he punched Loney twice
and then left.
¶7 During the settling of jury instructions, the court expressed concerns about
submitting to the jury both the aggravated burglary and misdemeanor assault charges,
questioning whether to do so would violate double jeopardy principles. To avoid raising
such an issue, the State offered to dismiss the misdemeanor assault charge.
¶8 Daniels proposed a jury instruction that included misdemeanor assault and
misdemeanor criminal mischief as lesser-included offenses of aggravated burglary. The
3
court refused to give Daniels’s proposed instruction on the grounds that it misstated the
law and that the State had agreed to drop the misdemeanor assault charge. The verdict
form included only the offenses of aggravated burglary and criminal mischief. The jury
found Daniels guilty of both. The court sentenced him to fifteen years in prison with ten
years suspended for the aggravated burglary conviction and to six months in jail with credit
for time served for the criminal mischief conviction.
STANDARDS OF REVIEW
¶9 We review a district court’s refusal to give a jury instruction on a lesser-included
offense for an abuse of discretion. State v. Jay, 2013 MT 79, ¶ 15,
369 Mont. 332,
298 P.3d
396. We review claims of instructional error in a criminal case to determine whether the
jury instructions, as a whole, fully and fairly instruct the jury on the law applicable to the
case. State v. Shegrud,
2014 MT 63, ¶ 7,
374 Mont. 192,
320 P.3d 455. Because a trial
court has broad discretion when instructing a jury, reversible error will occur only if the
jury instructions prejudicially affect the defendant’s substantial rights. Shegrud, ¶ 7. A
defendant is prejudiced by the failure to give a requested lesser-included offense instruction
when the evidence could warrant a jury finding the defendant guilty of a misdemeanor
offense instead of a felony. Shegrud, ¶ 18.
DISCUSSION
¶10 Daniels argues that the District Court abused its discretion in refusing to instruct the
jury on assault as a lesser-included offense of aggravated burglary. He asserts that assault
was a lesser-included offense of aggravated burglary in this case and that the evidence at
trial could have supported a conviction of assault instead of aggravated burglary. To the
4
extent that his proposed instruction was incorrectly worded, Daniels argues that the court
should have granted him leniency as a pro se defendant and redrafted the instruction to
correct the mistakes.
¶11 The State argues that Daniels failed to preserve for appeal his argument that the
District Court abused its discretion in denying his proposed instruction because he failed
to timely inform the court or the prosecutor that he intended to rely on obtaining a possible
conviction of assault as a lesser-included offense of aggravated burglary. It asserts further
that the court was not required to construct Daniels’s legal arguments for him, even though
he was representing himself. Finally, the State contends that the District Court correctly
rejected Daniels’s proposed instruction because it was inconsistent with Daniels’s claim of
self-defense and because the charge of assault was unsupported by the evidence.
¶12 In determining whether a district court was obligated to give a proposed lesser-
included offense instruction at trial, we apply the two-step approach articulated in State v.
Castle, 285 Mont. 363, 368,
948 P.2d 688, 690-91 (1997). Jay, ¶ 39. First, we determine
whether, “as a matter of law, the offense for which the instruction is requested is a
lesser-included offense of the offense charged.” Jay, ¶ 39. Second, “we determine if the
lesser-included instruction is supported by the evidence of the case.” Jay, ¶ 39. If both
criteria are met, then the District Court must give the proposed instruction. See Jay, ¶ 42;
§ 46-16-607(2), MCA. “A lesser-included offense instruction is not supported by the
evidence when the defendant’s evidence or theory, if believed, would require an acquittal.”
Jay, ¶ 42 (citation and internal quotations omitted).
5
¶13 The aggravated burglary statute under which Daniels was charged and convicted
states in pertinent part:
(2) A person commits the offense of aggravated burglary if the person
knowingly enters or remains unlawfully in an occupied structure and:
. . .
(ii) the person knowingly or purposely commits any other offense within
that structure; and
(b) in effecting entry or in the course of committing the offense or in
immediate flight after effecting entry or committing the offense:
. . .
(ii) the person purposely, knowingly, or negligently inflicts or attempts to
inflict bodily injury upon anyone.
Section 45-6-204(2), MCA. The misdemeanor assault statute under which the State
originally charged Daniels defines assault as “purposely or knowingly [causing] bodily
injury to another.” Section 45-5-201(1)(a), MCA.
¶14 A lesser-included offense is defined in part as an offense that “is established by
proof of the same or less than all the facts required to establish the commission of the
offense charged.” Section 46-1-202(9)(a), MCA. The term “facts” in this statute “refers
to the statutory elements of the charged offense and not to the individual facts of the case.”
Jay, ¶ 40. As charged, aggravated burglary required proof that Daniels “knowingly or
purposely commit[ted] any other offense within” the structure that he entered unlawfully.
Section 45-6-204(2)(a)(ii), MCA. The State’s theory as charged and presented at trial was
that Daniels’s assault against Loney constituted the “other offense” required for aggravated
burglary. The State did not argue at trial, and does not argue on appeal, that assault was
not a lesser-included offense of Daniels’s aggravated burglary charge. Because the assault
was charged as the secondary offense for aggravated burglary, we conclude that
6
misdemeanor assault is, “as a matter of law,” a lesser-included offense of Daniels’s
aggravated burglary charge. See Jay, ¶ 39; State v. Tellegen, 2013 MT 337, ¶¶ 23-25,
372
Mont. 454,
314 P.3d 902 (discussing theft as incorporated in the charged burglary offense).
¶15 The evidence presented at trial supported an instruction on assault as a
lesser-included offense of aggravated burglary. Daniels’s theory of the case was that: (a)
he was not the aggressor in the fight but hit Loney in self-defense; and (b) he did not
knowingly enter or remain in Loney’s apartment because he and Loney inadvertently fell
through the door. Daniels testified that when he returned to Loney’s apartment for the
second time at 5:00 a.m., he knocked on the door, Loney came outside, the two men got
into a physical fight that Loney provoked by “swinging” at Daniels, and then the two fell
through Loney’s apartment door. Daniels told the jury that he had his back to the door and
Loney “pushed me and we both came tumbling through the door.” In closing argument,
Daniels first addressed the predicate assault offense and the elements of justifiable use of
force. Daniels argued that “there is no proof at all that that door got kicked in, because I
told you what happened. We fought out there, and we went through the door. And I’m in
my rights to protect myself.” He then turned to the elements of aggravated burglary and
argued that he did not knowingly enter Loney’s apartment. Daniels told the jury, “Now,
the first element is that, did someone go in there into a structure. That’s not proven.” The
evidence could have supported Daniels’s argument that he did not knowingly enter or
remain in Loney’s apartment even if Loney was not the aggressor in their fight. Daniels
therefore was entitled to the lesser-included assault instruction. See Jay, ¶ 39.
7
¶16 Daniels’s proposed instruction on assault would have given the jury an alternative
to convicting him of aggravated burglary if it did not believe that Daniels justifiably used
force against Loney but if it did believe that he inadvertently fell through Loney’s
apartment door. His claim of self-defense did not bar him from proposing this instruction
on assault, and he did not adopt an “all-or-nothing” approach, as the State and the Dissents
contend. Instead, he offered alternative theories as to why the jury should acquit him of
aggravated burglary—that he did not knowingly enter Loney’s apartment and that he
fought with Loney in self-defense. The evidence could have supported the jury in finding
that Daniels knocked on Loney’s apartment door, that Loney exited the apartment, and that
the two fell through the apartment door while they were fighting—i.e., that Daniels did not
“knowingly” enter or remain unlawfully in Loney’s apartment. Section 45-6-204(2),
MCA. At the same time, the jury also could have chosen not to believe Daniels’s testimony
that Loney instigated the fight by “swinging” at him, and could have concluded instead
that Daniels “purposely or knowingly cause[d] bodily injury” to Loney.
Section 45-5-201(1)(a), MCA. The evidence thus warranted the jury “in finding the
defendant guilty of [the] lesser-included offense” of assault. Jay, ¶ 42 (citation and internal
quotations omitted). In that case, the evidence would not have “require[d] an acquittal.”
Jay, ¶ 42 (citation and internal quotations omitted).
¶17 District courts should “grant wider latitude to pro se litigants” as long as that latitude
does not prejudice the other party. State v. Ferre, 2014 MT 96, ¶ 16,
374 Mont. 428,
322 P.3d 1047. In fulfilling his or her duty to “uphold and apply the law,” a judge is
allowed to “make reasonable accommodations to ensure self-represented litigants the
8
opportunity to have their matters fairly heard,” including, but not limited to, “liberally
construing” the litigant’s pleadings. M. C. Jud. Cond., Rule 2.2. cmt. 5. Daniels’s
proposed instruction on assault as a lesser-included offense and his statements made during
closing argument were imperfectly articulated. The District Court found fault with
Daniels’s proposed instruction because it included both criminal mischief and assault.
Daniels does not argue on appeal that both offenses should have been included. But neither
the District Court nor the prosecutor suggested that assault was not a lesser-included
offense of the charged felony.
¶18 We held in Tellegen that where the State charged theft as a predicate offense to
burglary under § 45-6-204(1)(b), MCA, and the jury convicted the defendant of both theft
and burglary, the theft conviction should have been vacated under § 46-11-410(2)(a),
MCA. Tellegen, ¶ 25. As we noted in a later case, “[t]he same statute specifically provides
that, ‘[w]hen the same transaction may establish the commission of more than one offense,
a person charged with the conduct may be prosecuted for each offense.’” State v. Zink,
2014 MT 48, ¶ 12,
374 Mont. 102,
319 P.3d 596 (quoting § 46-11-410(1), MCA). Under
§ 46-11-404(3), MCA, “[t]he prosecution is not required to elect between the different
offenses set forth in the charging document, and the defendant may be convicted of any
number of the offenses charged except as provided in 46-11-410.” Zink, ¶ 12. Thus, the
proper course in this case would have been to send the case to the jury as charged, allow
the jury to determine whether to convict Daniels of aggravated burglary or assault, and, if
the jury checked both of those boxes on the verdict form, to dismiss the assault charge prior
to imposing sentence. See Zink, ¶ 13 (noting that “a defendant may be charged in the
9
alternative, so long as he is convicted of only one offense.”). When the District Court
identified the concern at the end of trial while settling instructions, neither the District
Court nor the prosecutor recognized or discussed this course of action. Although Daniels
did not object to the State’s dismissing the assault charge, he did advocate for an instruction
under which the jury would have been told to convict him of either the greater or the lesser
offense but not both.
¶19 We are not persuaded by the State’s and Justice McKinnon’s contention that Daniels
failed to preserve this issue for appeal. Of course, a party “may not raise new arguments
or change his legal theory on appeal.” State v. Heath, 2004 MT 58, ¶ 39,
320 Mont. 211,
89 P.3d 947. Yet Daniels’s proposed instruction shows that he requested the court to give
the jury the option of convicting him of misdemeanor assault rather than aggravated
burglary, regardless of the fact that the State had dropped the assault charge against him.
Daniels expressly reiterated to the trial court that he was offering the lesser-included
offense instruction even though the State had dismissed the assault charge. And his
statements during closing argument reflect this theory of his case. Under these
circumstances, we decline—as Justice McKinnon would do—to fault Daniels exclusively
for failing to see that the instructions and the verdict form laid out the correct path. Dissent,
¶ 35.
¶20 Other than including criminal mischief as an underlying offense, Daniels’s proposed
instruction mirrored the pattern instruction on lesser-included offenses. M. Crim. Jury
Instr. 1-111 (2009). “Self-represented litigants are still required to comply with the same
substantive law and procedural requirements as represented litigants.” M. C. Jud. Cond.,
10
Rule 2.2 cmt. 5. The record shows that Daniels, a pro se defendant, expressly proposed an
instruction on assault as a lesser-included offense of aggravated burglary and did not
withdraw it when asked. That his proposed instruction was imperfectly worded does not
mean Daniels was not entitled to a proper instruction. He has not raised new arguments or
changed his legal theory on appeal. See Heath, ¶ 39. Daniels therefore is not barred from
appealing the denial of his proposed instruction.
¶21 The District Court showed patience with Daniels during the trial and advised him
of the procedures he must follow in presenting his case. The court rightly made “reasonable
accommodations” by offering to modify two of Daniels’s other proposed instructions
regarding justifiable use of force. M. C. Jud. Cond., Rule 2.2 cmt. 5. Daniels complied
with procedural requirements by offering a proposed instruction and not withdrawing it.
He complied with substantive law because he was entitled to his proposed instruction if the
evidence supported it. See Jay, ¶¶ 39, 42. The evidence at trial did support his proposal
for the lesser-included offense instruction. The District Court therefore abused its
discretion in refusing to instruct the jury on assault or to give the jury the alternative to
convict Daniels of that lesser-included offense. Jay, ¶ 15.
CONCLUSION
¶22 The verdict form did not give the jury the option of convicting Daniels of
misdemeanor assault. The difference between a conviction of aggravated burglary—a
felony that carries a maximum sentence of forty years in prison, § 45-6-204(3), MCA—
and a conviction of misdemeanor assault—which carries a maximum penalty of six months
in jail, § 45-5-201(2), MCA—is stark. Daniels’s imperfect presentation of his case caused
11
the State only minimal prejudice, because Daniels raised the theory at trial and offered an
instruction on it. “Where, as here, a jury could be warranted in finding a defendant guilty
of a lesser included offense, the district court is required to give a lesser included offense
instruction if requested by [one of] the parties.” Shegrud, ¶ 18 (citing § 46-16-607(2),
MCA) (emphasis added). Any prejudice to the State under the circumstances of this case
is subordinate to Daniels’s fundamental rights and the requirement that he receive an
instruction to which the law entitles him.
¶23 The District Court’s judgment is reversed, and the case is remanded for a new trial
consistent with this Opinion.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
Justice Jim Rice, dissenting.
¶24 As the State argues and the Court acknowledges, Daniels did not offer an instruction
clearly proposing misdemeanor assault as a lesser-included offense of aggravated burglary.
More importantly, he offered no argument or explanation during settlement of instructions
that would clarify what he was requesting. Consequently, the Court grounds reversible
error on its own assessment of what Daniels was trying to accomplish. The problem is, of
course, that the District Court obviously did not, and could not, have understood what
12
Daniels now claims he wanted. Daniels insisted on representing himself at trial, and while
stand-by counsel was standing by, he offered his own instructions and arguments. He
should be held to them, like every other litigant. Instead, the Court allows Daniels’ new
appellate counsel to re-argue the settlement of instructions—the arguments that should
have been made at trial—and accepts them. The Court’s granting of “wide latitude,”
Opinion, ¶ 17, to Daniels, and the reversal of the conviction thereon, clearly prejudices the
State. The Court’s repeated assertions that Daniels “expressly” proposed and “expressly”
reiterated that he was offering a lesser-included instruction for assault are simply not
founded in the record. Opinion, ¶¶ 19–20.
¶25 It is not error for a district court to deny a proposed instruction that is inconsistent
with the theory of the defense. State v. Hall, 2003 MT 253, ¶ 30,
317 Mont. 356,
77 P.3d
239 (finding it was not an abuse of discretion for the district court to deny an accountability
instruction where such an instruction “was inconsistent with the defendant’s theory of
complete innocence”); Taylor v. State,
2014 MT 142, ¶ 22,
375 Mont. 234,
335 P.3d 1218
(“Because Taylor’s theory, if believed, would require an acquittal, a lesser included
instruction for sexual assault was arguably not appropriate.”).
¶26 The Court strains to find that Daniels offered “alternative theories” to justify the
need for an assault instruction, but the record indicates otherwise. Opinion, ¶ 16. Daniel’s
entire defense was self-defense. Daniels testified that Loney stepped out on the porch and
started a fight by pushing Daniels in the chest. He added in closing argument that “it was
not lawful for [Loney] to put his hands on me in the first place, to push me at all. He had
no right to do that.” Daniels argued to the jury that “I’m in my rights to protect myself.”
13
Daniels theorized that Loney had a romantic relationship with Rachelle and was merely
using this incident “as a way to try to get rid of me.” At no point did Daniels offer an
alternative theory that, at most, he had committed a simple assault upon Loney. Indeed, he
argued just the opposite—that under the statutory definition of assault, he had not assaulted
Loney. Daniels placed the entirety of his defense on justifiable use of force, which, if
believed, would have required an acquittal. This was not a case of “alternative theories.”
Opinion, ¶ 16. Further, if Daniels’ self-defense theory had been believed, the Court’s
alternative theory regarding aggravated burglary—“that he did not knowingly enter
Loney’s apartment,” Opinion, ¶ 16—would have necessarily required acquittal because his
falling through the door occurred while acting in self-defense, not by his intention, which
Daniels explicitly argued to the jury.
¶27 Under these circumstances, it was not an abuse of discretion for the District Court
to not offer a lesser-included instruction on assault. Daniels has not demonstrated that such
omission prejudicially affected his substantive rights. State v. Spotted Eagle, 2010 MT
222, ¶ 6,
358 Mont. 22,
243 P.3d 402. The jury decided the case based upon the defense
that Daniels presented, to which he now should be held.
¶28 I would affirm.
/S/ JIM RICE
14
Justice Laurie McKinnon, dissenting.
¶29 I dissent on the basis that (1) the alleged error in failing to give a lesser included
assault instruction was not preserved, and (2) a lesser included assault instruction was
inconsistent with Daniels’ claim of self-defense.
¶30 (1) The alleged error in failing to give a lesser included assault instruction was not
preserved.
¶31 This proceeding aptly demonstrates the difficulties trial courts have managing a
criminal trial when the defendant chooses to represent himself. The District Court made
every effort to afford Daniels wide latitude and flexibility in presenting his case; offered
Daniels every opportunity to explain his position and arguments; and construed Daniels’
pleadings and arguments liberally, as courts are required to do for self-represented litigants.
However, Daniels effectively has obtained a reversal based upon a proposed jury
instruction, which was legally incorrect because it included criminal mischief as a lesser
included offense of aggravated burglary, without offering any objection or explanation to
the District Court that the instruction should be reframed to include only assault. Assuming
error by the trial court through failure to extract assault from the unartfully drafted
instruction or in simply overlooking assault as a lesser included offense, Daniels
nonetheless remained silent during the entire settling of instructions.1 Daniels offered no
1 This Court suggests that Daniels’ proposed instruction “mirrored the pattern instruction on lesser-included
offenses.” Opinion, ¶ 20. However, while the instruction was correct in that it instructed to choose either
the greater or lesser offense, and not both, the substance of Daniels’ instruction was incorrect and,
thankfully, does not mirror our pattern jury instructions. It reads, in part:
The Defendant is charged with aggravated burglary a Felony and two lesser charges of
assault, a misdemeanor, and criminal mischief, a misdemeanor. A lesser included offense
is one that is less serious than the charged offense. The Defendant cannot be convicted of
objection, explanation, or argument regarding his theory and evidentiary basis for assault
as a lesser included offense and gave the District Court no opportunity to correct its alleged
error or oversight. Additionally, Daniels offered no objection or explanation, on the basis
of his lesser included offense theory, to the State’s dismissal of the assault charge; nor did
he object or explain why the verdict form, containing only the offense of aggravated
burglary, was wrong because it did not include a lesser included offense. I have difficulty
finding, on this record, that the District Court abused its discretion by failing to anticipate
Daniels’ defense strategy and fashioning a jury instruction in support of that strategy. State
v. Feltz, 2010 MT 48, ¶ 14,
355 Mont. 308,
227 P.3d 1035. The suggested evidentiary
support by this Court for a lesser included offense of assault could not have been gleaned
by the trial court absent explanation from Daniels. Daniels testified that Loney started the
fight and that Daniels acted in self-defense, thus the evidentiary connections and support
for a lesser included instruction were far from clear or apparent.
¶32 Our precedent, nearly four decades worth, is well-established on the necessity to
instruct a jury of a lesser included offense when the evidence or theory of the defendant
supports the lesser offense and “[u]pon request of the defendant at the settling of
instructions . . . .” Section 46-16-607(3), MCA. In fact, the Court has already held that
misdemeanor assault is, “as a matter of law,” a lesser included offense of aggravated
burglary. Jay, ¶ 39. This appeal, in part, concerns the extent to which the Court, at the
expense of being impartial to the State, the victim, and being fair to the trial court, is willing
the felony and the misdemeanors. The charge of aggravated burglary includes the elements
of both misdemeanors.
16
to bend rules of law relating to preservation of error in order to be “flexible” to a defendant
who has chosen to represent himself.
¶33 The rule is well established that this Court will not address an issue raised for the
first time on appeal. State v. Peterson, 2002 MT 65, ¶ 24,
309 Mont. 199,
44 P.3d 499
(citing State v. Weaselboy,
1999 MT 274, ¶ 16,
296 Mont. 503,
989 P.2d 836). A party
may not raise new arguments or change its legal theory on appeal. Unified Industries, Inc.
v. Easley,
1998 MT 145, ¶ 15,
289 Mont. 255,
961 P.2d 100 (where this Court declined to
follow an exception to the rule when the facts are undisputed). The critical reason for the
rule is “that it is fundamentally unfair to fault the trial court for failing to rule on an issue
it was never given the opportunity to consider.” State v. Martinez,
2003 MT 65, ¶ 17,
314
Mont. 434,
67 P.3d 207 (emphasis added).
¶34 In addition, we have said “[i]t has long been the rule of this Court that on appeal we
will not put a district court in error for a ruling or procedure in which the appellant
acquiesced, participated, or to which appellant made no objection.” State v. English,
2006
MT 177, ¶ 71,
333 Mont. 23,
140 P.3d 454. “Acquiescence in error takes away the right
of objecting to it. This Court will not hold a district court in error when it has not been
given an opportunity to correct itself.” English, ¶ 71 (citation omitted; emphasis added).
Daniels has identified no exception to these rules for preserving error, except to offer that
he should not be bound by them because he has chosen to represent himself.
¶35 When the District Court refused Daniels’ Proposed Instruction No. 4, the District
Court explained that the instruction “indicates that the criminal mischief may be a lesser
included offense, but provides no authority for that position.” The District Court told
17
Daniels it was an incorrect statement of the law. The District Court also stated that the
proposed language was needless given the State’s dismissal of the assault charge.
Assuming error in the District Court’s conclusions, Daniels did not explain to the District
Court, which was particularly necessary given his simultaneous claim that he was acting
in self-defense, why he was entitled to assert a lesser included offense theory and receive
a lesser included offense instruction for assault. In fact, aside from composing an incorrect
jury instruction which mentions assault in the context of a lesser included offense with
criminal mischief, Daniels never made clear to the District Court his lesser included offense
theory for assault: not at the time of the State’s dismissal of the assault charge; not at the
time jury instructions were settled; nor at the time the verdict form, containing only the
offense of aggravated burglary, was agreed upon. As is demonstrated by this Court’s
Opinion, Daniels’ theory of the case was first established in his closing argument, which
followed the settling of the jury instructions. Opinion, ¶ 14.
¶36 Additionally, the Court directs that “the proper course in this case would have been
to send the case to the jury as charged . . . .” Opinion, ¶ 12. However, such a bidding or
instruction to the State interferes with a prosecutor’s discretion in deciding what to charge
and the strategy the State chooses for obtaining a conviction on the offense it deems is most
warranted. Often a prosecutor may elect to pursue only the greater offense out of concern
that the jury may reach a compromise verdict on a lesser offense. Similarly, a defense
strategy may be that, because of a belief that the State cannot prove the greater offense, the
defendant strategizes that a compromise verdict by the jury on a lesser offense is too risky.
In both examples, the parties, and not this Court, are the ones trying the case and most
18
familiar with the evidence. This is why § 46-16-607(3), MCA, requires that the lesser
included instruction be considered “upon request of the defendant.” (Emphasis added).
The significance of allowing the State to charge; a defendant to elect a lesser included
offense strategy; and the trial court to decide whether the evidence supports a lesser
included offense instruction cannot be overstated. Indeed, the Court’s meandering
explanation through Tellegen, Zink, and § 46-11-410, MCA, landing with a second-chair
command of what the District Court should have done, will prove difficult to decipher and
employ in the future by litigants and the courts.
¶37 In my view, although Daniels submitted a partial legally correct jury instruction
proposing a lesser included offense of assault, he otherwise failed to adequately present his
argument and explain to the District Court that his theory of defense entitled him to the
instruction. I agree with the State when it maintains that a defendant who elects to represent
himself cannot thereafter complain that the poor quality of his own defense requires
remediation through liberal construction to rectify missed opportunities in the trial court.
The trial judge should have the first opportunity to correct the error and is not required to
anticipate, conjure up, or decipher claims of any litigant. A judge has the responsibility to
preside in such a way as to promote fairness to all litigants. To require the trial judge to
assume a role of anticipating and formulating arguments and requests of a criminal
defendant is inconsistent with the requirement that a judge be fair and impartial.
19
¶38 (2) A lesser included assault instruction was inconsistent with Daniels’ claim of
self-defense.
¶39 I agree with Justice Rice’s observations in ¶ 26 of his dissent characterizing Daniels’
testimony and theory of defense. Further, Daniels’ theory of self-defense, if believed,
would have required the jury to aquit him of assault. For this reason, and because no
alternate theory of defense was presented, I would conclude that Daniels was not entitled
to a lesser included offense instruction.
¶40 This Court has missed an important distinction in our jurisprudence with respect to
lesser included offenses. While we cite and rely upon the two-step inquiry described in
Castle and utilized in Jay, we overlook the requirement that to give a lesser included
offense instruction it must be consistent with the defense’s theory of its case. Accordingly,
a defendant does not get a lesser included instruction simply because, as a matter of law, a
lesser included offense is available, “when the defendant's evidence or theory, if believed,
would require an acquittal.” Jay, ¶ 42 (citing State v. Burkhart, 2004 MT 372, ¶ 39,
325
Mont. 27,
103 P.3d 1037 (emphasis added)).
¶41 In Burkhart, a prosecution for deliberate homicide, evidence was presented at trial
that indicated Burkhart was angry about his car and exclaimed, “I am going to kill the
fucker that broke into [my] car.” An instruction for mitigated deliberate homicide would
have required evidence of extreme mental or emotional distress. Because there was no
evidence of this nature presented or any other evidence to justify a lesser-included offense
of deliberate homicide, an instruction on mitigated homicide was properly denied.
Burkhart, ¶ 39.
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¶42 In State v. Martinez, 1998 MT 265,
291 Mont. 265,
968 P.2d 705, we reiterated that
two criteria must be met before a defendant is entitled to a lesser included offense
instruction, and also explained that the defendant’s “evidence or theory” cannot be
inconsistent with guilt for the lesser included offense.
First, the offense must actually constitute a lesser included offense of the
offense charged, and, second, there must be sufficient evidence to support
the included offense instruction. Furthermore, although a defendant is
entitled to jury instructions on every issue or theory having support in the
evidence, a lesser included offense instruction is not supported by the
evidence where the defendant's evidence or theory, if believed, would require
an acquittal.
Martinez, ¶ 10 (citations omitted; emphasis added). Martinez, who was charged with
felony assault for his use of a weapon, argued that he was entitled to a lesser included
instruction of misdemeanor assault because Gillespie, the victim, was not a credible
witness. However, Gillespie provided the only testimony at trial regarding the specific
events underlying the felony assault charge. This Court concluded that, as a result, if the
jury had discounted Gillespie’s testimony—as Martinez asserts it should have—there
would have been no evidence at all in support of an assault charge. The absence of
evidence establishing the elements of a criminal charge supports a verdict of acquittal. We
again noted “a lesser included offense instruction is not supported by the evidence where
the defendant’s evidence or theory, if believed, would require an acquittal. Martinez, ¶ 10.
¶43 In State v. Schmalz, 1998 MT 210,
290 Mont. 420,
964 P.2d 763, Schmalz relied
upon the common-law rule that the court must instruct upon every issue or theory having
support in the evidence, citing, inter alia, State v. Gopher,
194 Mont. 227,
633 P.2d 1195
(1981). This Court noted, however, that “an instruction on a lesser included offense of
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assault has no support in the evidence and is not necessary when the defense’s evidence, if
believed, would require an acquittal.” Schmalz, ¶ 23. We concluded that “the testimony
of Schmalz’s mother, if believed, would support an acquittal, not a conviction of felony
assault” because, “according to her testimony, Schmalz had no intent to shoot her at all.”
Schmalz, ¶ 23. A lesser included instruction would have been incorrect because “if the jury
believed the testimony upon which the defense relies, an instruction on the lesser included
offense would have no support in the evidence because the necessary intent would be
lacking.” Schmalz, ¶ 23.
¶44 In State v. Howell, 1998 MT 20,
287 Mont. 268,
954 P.2d 1102, Howell was charged
with deliberate homicide and requested a lesser included instruction on aggravated or
felony assault. We held that “the record contains no evidence that Howell intended to
inflict bodily injury rather than to cause the death of Oliver.” Howell, ¶ 34. Howell also
stated that he did not intend to injure Oliver, but cut him accidentally. We concluded
Howell was not entitled to the lesser included instruction because “[t]his theory, if
accepted, would support an acquittal, not a conviction for assault.” Howell, ¶ 34.
¶45 Castle, itself, is an excellent illustration of when a defendant is entitled to a lesser
included instruction. In Castle, the defendant was charged with deliberate homicide. The
testimony at trial established that the defendant punched the victim three times in the jaw
and once on the side of the head, but that another man stabbed the victim several times and
kicked the victim in the head. Castle,
285 Mont. at 368,
948 P.2d at 691. The pathologist
who examined the victim testified that the causes of death were stabbing and severe blunt
force injuries to the head. He stated that the type of blows that caused this injury were not
22
simple punches or even the type of punch that would normally be inflicted by a boxer.
Castle, 285 Mont. at 368,
948 P.2d at 691. The district court refused the defendant’s
request for jury instructions on assault. On appeal, this Court held that “[a]lthough this
Court holds that assault is an included offense, that does not mean that an instruction on
this offense must be given every time a defendant is charged with deliberate homicide.
Rather, there must be some basis from which a jury could rationally conclude that the
defendant is guilty of the lesser, but not the greater offense.” Castle,
285 Mont. at 368,
948 P.2d at 691. We determined that the testimony and medical evidence “were consistent
with the defense theory that, although the defendant punched [the victim], . . . those blows
only amounted to assault and did not cause his death.” We held that the district court erred
in not instructing the jury on assault. Castle,
285 Mont. at 369,
948 P.2d at 692.
¶46 Here, this is not a situation where Defendant has offered alternate theories for his
defense. Daniels’ testimony was that Loney was the aggressor and pushed him first;
Daniels testified he only acted in self-defense to protect himself. In doing so, during this
melee, Daniels and Loney fell through the front door. Based on this evidence and the
foregoing authority, a lesser included instruction of assault would have been inconsistent
with Daniels’ theory of self-defense; if the jury accepted that Daniels acted in self-defense,
they would have been required to acquit Daniels. Daniels is not entitled to a lesser included
instruction for assault simple because, as a matter of law, assault is an element of
aggravated burglary. This Court overlooks the requirement that the instruction be
consistent with the defendant’s evidence or theory and that, if accepted by the jury, the
theory would not support an acquittal for the lesser included offense.
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¶47 I would affirm the District Court for the reason that Daniels failed to preserve the
alleged error. However, this Court has erred as well in finding that Daniels was entitled to
a lesser included instruction of assault because a conviction for assault would be
inconsistent with Daniels’ claim of self-defense.
/S/ LAURIE McKINNON
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