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,
Appellant: Chad Wright, Appellate Defender, Alexander H.
Pyle, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Chad G. Parker, Catherine Truman, Assistant Attorneys
General, Helena, Montana
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.
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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 ...