No. 13334 INTHE SUPREME COURT OF THE STI-TE OF MONTANA 1976

STATE OF MONTANA, Plaintiff and Respondent,

-VS

# - CARL LEO ORSBORN, Defendant and Appellant.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert S. Keller, Judge presiding. Counsel of Record : For Appellant: Fennessy, Crocker and Harman, Libby, Montana David Id. Harman argued, Libby, Montana For Respondent: Eon. Robert L. Woodahl, Attorney General, Helena,

Montana John North, Assistant Attorney General, argued,

Helena, Montana WilliamA. Douglas, County Attorney, argued, Libby,

Montana

Submitted: August 30, 1976 P r- 

### -. Decided: %-

### Lr)3xi':AFiled:

## :".Mr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant appeals fromhis conviction of one count of aggravated assault and the 20 year sentence imposed by the districtcourt, Lincoln County. The record reveals this sequence of events: On August 12, 1974 defendant CarlLeo Orsborn began a lengthy period of drinking by consuming a drink shortly after arising at about 6:00 a.m. Later in the morning he had a drinkwith a friend. Atapproximately 1:00 p.m. he entered theMine Lounge inLibby, Montana and had several drinks including one with a fellow patron, Charles A. Lowder. After drinking most of the day Orsborn encountered Jesse First Raised and they went to theMine Lounge to close out the day of drinking. Lowder was still atthe bar quite intoxicated and thebarmaid pursuaded Orsborn and First Raised toget him out of thebar so she could close up. They put Lowder inOrsborn's

car and after driving around for sometime they parked ata gravel pit located out of town. The testimony is inconflict as to whether ornot the two men were going to "roll" Lowder but there

was no question that some kind of fracas occurred atthe gravel pit and Lowder was hitby a rock thrown by Orsborn. After this incident, Orsborn and First Raised got back in the car and continued driving until they encountered Thomas A. Millerwho was parked along the roadside with a flat tire. They stopped and got a tire iron out of the trunk of Orsborn's car to fixthe flat tire. What happened next is subject to conflicting testimony. First Raised testified OrsbornstruckMiller with a

### pulaski (an axe-hoe combination tool). Miller testified Orsborn swung downwith something. Orsborn testified he did not attack Miller. At any rate,Miller sufferedbruises to his neck and shoulder. Based on these two incidents,an Informationwas filed in district court onAugust 15, 1974, charging Carl Leo Orsbornwith two counts of aggravated assault inviolation of section 94-5-202, R.C.M. 1947. Count 

### I charged defendant with aggravated assault by purposely or knowingly causing bodily injury to Charles Albert Lowder by means of a weapon. Count 11 charged the same as to Tom A. Miller. Trial was had on October 16, 1974,with Jesse First Raised appearing as a witness for the statehaving been granted immunity fromprosecution for any rolehe had in the incidents, The jury after retiring to consider a verdict reported it was deadlocked,whereupon the court declared the matter a mistrial. On November 12, 1974,a motion to sever the two counts and request for separate trialswas made by defendant. This motion

was subsequently denied. Defendant was again tried on the two counts of aggravated assault on December 2, 1974. At the close of the state's case,defendant's motion to dismiss Count I was denied. On settling jury instructions, the court refused defendant's proposed InstructionNo. 2, covering the lesser included offense of assault, section 94-5-201,R.C.M. 1947. The jury found defendant not guilty on Count 

### Iand guilty on Count 11. 

### Following the verdict, a presentence investigative report was filed and on December 26, 1974,a presentencehearing held. Defendantwas sentenced to 20 years in the Montana State Prison. Defendant appeals from the judgment and sentence.

### These issues are presented for review: 1. Whether the sentencing judgemay receive and adopt information from sources other than the testimony of witnesses in open court? 2. Whether the Montana Youth Court Act applies to the facts pertaining to sentencing in this case? 3. Whether the district court erred in refusing to give defendant's proposed InstructionNo. 2, covering the lesser included offense of assault? 

### 4. Whether the district court erred in refusing to grant defendant% motion for separate trials on separate counts? 5. Whether the district court erred in refusing to grant defendant's motion to dismiss Count I at the end of the state's

case.Issue 1. Defendant contends his constitutional right to confront the witnesses againsthim was violated by the proceedings at the presentence hearing. United States Constitution, sixth and FourteenthAmendments;Article 11, Section 24, 1972 Montana Constitution. In support defendant cites Kuhl v. District Court, 139 Mont. 536, 568, 366 P.2d 347. The specific portion of the presentence hearing which defendant objects to is what occurred after defendant gave facts inmitigation of sentence. (We note here that a copy of the presentence report was furnished defendant and his counsel). At this point the trial .judgesaid: "This pre-sentence investigation report is silentwith respect to running off to Texas with youryounger brother and some girl. 

### Iam aware of that. I am satisfied you are aware of that. But I amnot satisfied that the report shows that I am aware of it. And it is the kind of a thing that 

### I think you should have an opportunity to explain if youwant to,because it certainly is all black in the Court's mind."

### In answer defendant, represented by counsel,admitted the

occurrence to be true. He made no statement inmitigation of the facts the trial judge referred to. We find no constitutional violation. Our examination af.Kuh1,

~ 

# - in relation to present Montana statutory law and relevant federal case law, leads to the conclusion that under the circumstances of this case defendant received due process at the presentence hearing. In 

# - Kuhlwe note this statement by the Court: 

## "*

# *

# * However,keeping inview, as we must, the provisions of sections 94-7813and 94-7814,supra, the question arises:Was the trial judge authorized to disregard the mandates of the two-lastmentioned sections and to proceed to pass sentenceupon the defendant Kuhl without giving him or his counsel an opportunity to learn or know any of the circumstances set forth in the investigator's report and without giving either the defendant or his counsel an opportunity to rebut or refute any of the representations therein contained?" (Emphasis supplied.) Section 94-7813,R.C.M 1947,referred to inKuhl provided that the sentencing court in its discretion could hear circumstances in aggravation or mitigation of sentence. Section 94- 7814,R.C.M. 1947,provided that such 

## "*

# * *circumstances must be presented by the testimony of witnesses examined in open court 

# ** *.I1 

### However, subsequent to 

# - Kuhl these statutory sections

were repealed. Sections 95-2203and 95-2204,R.C.M. 1947,now require that presentence information inmitigation or aggravation of punishment be made available to the sentencing judgewhere convictionmay result in commitment of one year or longer. Section 95-2205,R.C.M. 1947, the present applicable statute pertaining to sources of sentencing information,reads: 

# "** * If the court discloses the identity of persons who prozded information, the judge may, in

### his discretion, allow the defendant to cross-examinethose who rendered the information.

# ** *" (Emphasis supplied.)

### There is no lack of due process where the trial judgebrings to the attention of defendant facts he knows, that defendant knows he knows, and gives defendant an opportunity to explain them in a mitigation procedure,as in the instant case. Under section 95-2205,the right of cross-examination in a presentence hearing is a discretionarymatter of the trial court. Such a change in policy is reflective of the trend towards distinguishing evidential procedure at trial from that at the sentencing stage. The United States Supreme Court inWilliams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93

### L ed 1337, 1342, stated: 

# "***A sentencing judge,however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--tohis selection of an appropriate sentence is the possession of the fullest in£ormationpossible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent informationby a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial

# **

# *." (Emphasis supplied.) However, this does not mean that the spirit of

# - Kuhl is dead. 

### A

. . convicted defendant still has a due process guarantee against a sentencepredicatedon misinformation. The real question before us then is whether defendant received that protection. Here: (1) Defendant was represented by counsel at the time the sentencing informationwas made known to him. Townsend v. 

### Burke, 334U.S. 736, 68S.Ct. 1252, 92

### L ed 1690;Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 

### L ed 2d 336;United States v. Hone,

### (2) He had the opportunity to rebut the information. United Statesv. Espinoza, 481F.2d 553;United Statesv. Huff, 512F.2d 66. (3) Defendant chose to affirm the accuracy of the information. United States v. Horsley, 519 F.2d 1264;United States v. Brown, 479 F.2d 1170;State v. Mann, 

# - Mont

# . , 546 P.2d 515, 33 St. Rep. 278. Thus, any danger of utilizing misinformation in sentencingwas thus averted by the trial judge. Issue 2. Defendant contends that the source of the presentence information was his juvenile record. Since defendant had reached the age of majority, its use in sentencing without his consent

or upon court petition is claimed to be prejudicial error under the terms of the Montana Youth CourtAct,Title 10,Chapter 12, R.C.M. 1947. The record, including the presentence investigativereport, reveals no indicationof a juvenile record on the part of defendant or that he was ever under the jurisdiction of the Youth Court. We find no merit in defendant's second issue. Issue 3. Defendant argues the use of a weapon was not sufficiently established under Count I1 of the Information,thus the district court erred innot giving defendant's proposed InstructionNo. 2 on the lesser included offense of assault. Specificallydefendant contends that since Jesse First Raised could have been charged with accountability pursuant to sections 94-2-106and 94-2-107,R.C.M. 1947, forhis part in the TomMiller incident, any testimonyhe gave as to the use of a weapon in that incident required independent corroborationunder section 95-3012, R.C.M. 1947. Defendant claims the state failed to supply thenecessary corroboration. The state, while not disputing the need for corroboration due to the fact that First Raised had been granted immunity from prosecution inexchange forhis testimony, takes the position that the use of a weapon by defendant against Millerwas sufficientlycorroborated. The issue then becomes---What kind of evidence is sufficient tocorroborate the testimony of one legally accountable? Section 95-3012, R.C.M. 1947, states: "A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in section 94-2-106, unless he 

### is corroborated by other evidence, which in itself, and without the aid of the testimony of the one responsible or legally accountable for the same offense, tends toconnect the defendant with the commission of the offense; and the corroboration isnot sufficient, it merely shows the commission of the offense, or the circumstances thereof." Statev. Cobb, 

### 76 Mont. 89, 92, 245 P. 265, has been citedmany times 

### Bs to- the general guidelines for determining the sufficiency of evidence corroborating the testimony of one legally accountable. Though 

# - Cobb was decided under section 11988, R.C.M. 1921, since repealed, the language of the old statute

### isnearly identical to that of section 95-3012, R.C.M. 1947, inpertinent part. We note these guidelines from 

# - Cobb: "(a) The corroborating evidence may be supplied by the defendant orhiswitnesses. "(b) It need not be direct evidence--it may be circumstantial.

"(e) It need not be sufficient to connect the defendant with commission of the crime; it is sufficient-if it tends to do so. "(f) Whether the corroborating evidence tends to connect the defendant with the commission of the offense is a question of law, but the weight of the evidence

# *** is a matter for the consideration of thejury." (Emphasis supplied.)
,The testimony concerning the assault on Miller isundisputed

on these facts: First Raised's testimony that defendant for no
reason struckMiller with a pulaski but fortunatelyMiller saw or heard the action and moved so that hewas only struck inthe shoulder and neck. The blow stunned Miller but he was able to

recover enough torun away, chased a short time by defendant carrying the pulaski. Miller saw enough to testify it was defendant, "not the Indian" who swung on him. Defendant and First Raised immediately fled the area and went toIdaho. FirstRaised testifiedhe had the pulaski on the trip to Idaho and threw it out of the car somewhere between Libby and Priest River, Idaho. We hold that such circumstantial evidence tends to connect defendant with theuse of a weapon inthe attack on Miller. See: Statev. Spielmann, 163Mont. 199, 516 P.2d 617; Statev. Dess, 154Mont. 231, 462 P.2d 186; 30 Am Jur 2d Evidence, 

### 5 1153. Therefore, the districtcourt did not err refusing defendant

## 's proposed Instruction No. 

### 2 on the lesser included offense of simple assault. Spielmann, supra; Statev. Perry, 161Mont. 155, 505 P.2d 113, Issue4;

, Defendant alleges the district court committed reversible error in failing togrant defendant's motion for separate trials on separate counts of aggravated assault. Though conceding that two offenses of the same classmay be joined pursuant to section 95-1504(a), R.C.M. 1947, defendant notes that the statuteon joinder of offenses further provides at section 95- 1504(c), R.C.M. 1947: "If it appears that a defendant

# * ** is prejudiced by a joinder

# *

# ** of separate charges

# *

# ** the court may order separate trials

# **

# * orprovide any other re1ief asjustice may require."We find no error due to the fact defendant had separate and distinct defenses to the two counts. He plead selfdefense to the firstcount and thejury must have believed him for at the second trialhe was acquitted. As to Count 11, he denied the assault alleging that First Raised was guilty. Section 95-1504(c) is similar toRule 14, Federal Rules of Criminal Procedure, and for this reason we have examined federal case law on the potentialities of prejudice resulting from thejoinder of two crimes of the same class. Federal courts have found threebasic kinds of prejudice that may occur upon thejoinder of similar offenses. Wright, 1Fed.Pract. & Proc., Criminal, 222, p. 437. First, .thejury may consider defendant who is subject to multiple:charges to-,be.abad man. The prejudice claimed is that thejury may tend toaccumulate evidence against him until it finds him guilty of something. However, our examination of federal

cases reveals that such a claim of prejudice rarely has been found sufficient toprovide relief. See: Johnson v. United States, 356 F.2d 680, cert.den. 385 U.S. 857, 87 S.Ct. 105, 

### 17L ed 2d 84; Pumrnill v. United States, 297 F.2d 34. We do not find such

a claim of prejudice sufficient here. The burden of showing prejudice is on defendant and here he failed tomake such a showing. Second, proof of guilt of one offense may be used to convict the defendant of another offense even though such proof may be inadmissible ata separate trial. However, where, ashere, the alleged fact of the separate offenses was sufficientlydistinct to allow the jurors tokeep them separate intheirminds,

no prejudice willbe found. See: Drew v. United States, 331 E.2d 85; Robinson v. United States, 459 F.2d 847; United Statesv. Kellerman, 432 F.2d 371.


# - 10

# -Third, prejudice may result where the defendant wishes to testify on his own behalf on one charge but not on the other. But

we note federal courts have only considered such a claim of prejudice where the alleged offenses were totally separate as to time, place and evidence. See: Cross v. United States, 335 F.2d 987; United Statesv. Lee, 428 F.2d 917; Holmes v. Gray, 526 F.2d 622. The factual circumstances of the instant case do not lend themselves toa claim of this type of prejudice. For the reasons set forth, we failto find any prejudice resulting todefendant from thejoinder of the two counts of aggravated assault. Issue 5. Defendant contends the district court erred in , failing todismiss Count I of the Information atthe end of the state's case. He cites two reasons for this position. First, the evidence on Count I was insufficient to support a guilty verdict, and second, the courtwas under a continuing duty to protect the defendant from prejudicial joinder of separate offenses. We simply say that inview of this Court's position

on joinder of the two offenses in this case, and the fact defendant was found not guilty on Count I, no prejudice to defendant

was demonstrated. The judgment of the trialcourt 

### is affirmed. 

# mWe Concur:

Justices

# 6