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State v. Doney

Supreme Court of Montana

September 12, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
JOSEPH LEE DONEY, Defendant and Appellant.

          Submitted on Briefs: June 28, 2017

         Appeal From District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 13-945 Honorable Russell C. Fagg, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Kristen L. Peterson, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Christopher Morris, Deputy County Attorney, Billings, Montana

          OPINION

          JAMES JEREMIAH SHEA JUSTICE.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Joseph Lee Doney appeals his jury conviction and judgment in the Thirteenth Judicial District Court, Yellowstone County, for one count felony assault with a weapon. We address the following issues:

Issue One: Whether the District Court abused its discretion by excluding Krengel's testimony regarding statements Tsosie made to Krengel.
Issue Two: Whether the District Court abused its discretion by allowing the investigating detective to testify regarding a witness's out-of-court statements.
Issue Three: Whether the Court should exercise plain error review of Doney's claim of prosecutorial misconduct.
Issue Four: Whether Doney established cumulative error to warrant reversal.
Issue Five: Whether remand is necessary to enter an amended judgment regarding community supervision conditions.

         We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         The Incident

         ¶3 Around 1:00 p.m. on July 10, 2013, Donald Cyphers, II, left the Holiday convenience store at the corner of North 27th Street and North 6th Avenue in downtown Billings. Cyphers merged into the right lane as he approached a construction zone, and then noticed the driver of a white Pontiac Grand Am with tinted windows leaning out of the window yelling at him. Once the left lane construction zone ended, the Pontiac accelerated into the left lane to catch up to Cyphers. The passenger's window of the Pontiac was cracked open about four inches, down to a little higher than the passenger's eye line. Cyphers testified the passenger of the Pontiac leaned forward and smacked a gun up against the window of the Pontiac, pointing it at him. The passenger, who Cyphers identified as male, had the gun in his left hand, and his finger was in the trigger guard.

         ¶4 Cyphers pulled over his vehicle and called his father. As Cyphers prepared to call police to report the incident, he noticed Montana Highway Patrol Captain Edward Hilbert approach in an unmarked car. Captain Hilbert observed Cyphers' car stopped on the shoulder. Cyphers yelled at Captain Hilbert that "These guys just pulled a gun on me, " indicating the Pontiac a few cars ahead. The Pontiac then drove into oncoming traffic to pass the cars stopped at the traffic light and crossed the intersection against the red light. Captain Hilbert pursued the Pontiac, which was traveling between 70 and 80 miles per hour, until he lost sight of it as it turned onto Riverside Road.

         ¶5 Captain Hilbert asked a woman parked on Riverside Road whether she saw a white car go past. The witness stated she observed the car speed past, pull off to the side of the road, and three people jumped out. She also told Captain Hilbert she had previously seen the same car parked at the trailer behind hers. The Pontiac was still running and the driver's door ajar when Captain Hilbert reached it. Captain Hilbert knocked on the trailer the witness had directed him to, but nobody answered. Law enforcement was unable to locate the three occupants of the Pontiac that day, and the car was impounded.

         The ...


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