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State v. Santoro

Supreme Court of Montana

August 13, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
CHARLES GEOFFREY SANTORO, Defendant and Appellant.

          Submitted on Briefs: July 17, 2019

          District Court of the Ninth Judicial District, In and For the County of Toole, Cause No. DC 14-2 Honorable James A. Haynes, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Chad G. Parker, Catherine Truman, Assistant Attorneys General, Helena, Montana

          OPINION

          Ingrid Gustafson, Justice.

         ¶1 Appellant Charles Geoffrey Santoro (Santoro) appeals from the jury verdict finding him guilty of negligent homicide and subsequent written judgment entered by the Ninth Judicial District Court, Toole County, thereon on June 6, 2017. We reverse and remand for a new trial.

         ¶2 We restate the issues on appeal as follows:

1. Whether Santoro's trial counsel provided ineffective assistance of counsel by failing to serve a subpoena upon or otherwise preserve the testimony of a crucial defense witness for trial.
2. Whether the District Court erred in failing to deduct funds paid by Santoro's insurance to Justin Gallup and Tiffany Rowell from their restitution awards.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Santoro was charged with negligent homicide and two counts of felony criminal endangerment in connection with an incident occurring outside the VFW bar in Sunburst on August 18, 2013. At conclusion of his jury trial in August 2016, Santoro was convicted of all three offenses. On June 6, 2017, the District Court issued its written judgment in which it sentenced Santoro to 20 years MSP, 5 suspended on the negligent homicide offense and 10 years MSP, 5 suspended on each criminal endangerment offense. The District Court ran the criminal endangerment sentences concurrent with each other but consecutive to the negligent homicide sentence. The District Court also imposed restitution in the amount of $917, 428.37-comprised of $57, 640 to Justin Gallup (Gallup) and $859, 788.37 to Tiffany Rowell (Tiffany). Santoro appeals only the negligent homicide conviction, and also asserts the District Court erred by failing to deduct the $50, 000 paid by his insurance-$25, 000 to each Gallup and Tiffany-from each's restitution award.

         ¶4 On August 18, 2013, Santoro and Richard Potter went to the VFW bar in Sunburst. While there he encountered Levi Rowell (Rowell), Levi's wife Tiffany, and Levi's friend Gallup. Santoro and Rowell knew each other as Santoro previously worked for Rowell for a brief time and they are neighbors-they lived across the road from one another. Santoro and Rowell had a couple drinks together and participated in the good-natured banter of those in the bar. Santoro's participation became crude and he was asked to leave the establishment. When he and Potter left, he commented something to the effect that none of the other patrons in the bar were veterans to which Rowell responded that neither was Santoro. This offended Santoro such that as he went to his truck, he slammed a beer bottle on the walkway.

         ¶5 Rowell, hearing the bottle smashing outside, became convinced Santoro had done something to Rowell's vehicle. He got up to follow Santoro, but his wife and Gallup precluded him from leaving by blocking the door. When Tiffany thought sufficient time had passed for Santoro to leave, she permitted Rowell to go outside and she and Gallup followed. When they got outside, Tiffany realized Santoro had not yet driven away but remained parked next to their vehicle. Santoro was sitting in the driver's seat, Potter was in the passenger seat, and the vehicle was running. Rowell, with Tiffany and Gallup trailing approached Santoro's vehicle-Santoro's driver's door was either open or Rowell opened it-and Santoro and Rowell began yelling at each other. Santoro asserts Rowell then grabbed him by the neck and began choking him. Santoro asserts he was starting to lose consciousness and as he could not drive forward because the bar was in front of his truck, he gassed the truck in reverse. The reversing truck's open door caught Rowell as well as Tiffany and Gallup. Rowell was dragged and pulled under the truck and Tiffany and Gallup were cast outward from the door. Santoro felt a bump as he reversed and turned the steering wheel to the right and then put the truck in forward gear and turned to the left and sped away.

         ¶6 Santoro consistently maintained a justifiable use of force defense, asserting his response of swiftly reversing was justified to get away from Rowell choking him. The State's theory of prosecution at trial was that Santoro drove over Rowell two times-once while reversing and again while going forward. The State did not present any testimony of investigating law enforcement officers or an accident reconstructionist in support of its theory, but instead relied on pictures taken of the scene and the testimony of Rowell's family and friends who were present during the incident. At trial, these witnesses- Tiffany, Billy Jean Scarbrough, and Sandra Owens-testified to Santoro running Rowell over both while backing up and again while going forward. Each, however, either admitted this to be inconsistent with what they related to law enforcement immediately after the incident or admitted on cross-examination that they really had not seen Rowell hit when Santoro drove forward.

         ¶7 On closing, the State argued extensively in promotion of its theory that regardless of whether Santoro was justified gassing his truck in reverse to get away from Rowell, he was not justified in ...


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