Submitted on Briefs: June 28, 2017
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
Appellant: Chad Wright, Chief Appellate Defender, Kristen L.
Peterson, Assistant Appellate Defender, Helena, Montana
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
JEREMIAH SHEA JUSTICE.
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
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
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
Issue Four: Whether Doney established cumulative error to
Issue Five: Whether remand is necessary to enter an
amended judgment regarding community supervision
AND FACTUAL BACKGROUND
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.
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.
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.