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State v. Wittal

Supreme Court of Montana

September 3, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT MATTHEW WITTAL, Defendant and Appellant.

          Submitted on Briefs: July 10, 2019

          District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 16-280B Honorable Robert B Allison, Presiding Judge

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

          For Appellee: Timothy C. Fox, Motana Attorney General, C Mark Fowler, Assistant Attorney General, Helena, Montana

          Travis R. Ahner, Flathead County Attorney, John Donovan, Andrew Clegg, Deputy County Attorneys, Kalispell, Montana

          OPINION

          Beth Baker, Justice.

         ¶1 Robert Matthew Wittal appeals an Eleventh Judicial District, Flathead County, jury verdict finding him guilty of deliberate homicide. Wittal claims ineffective assistance of counsel after his trial attorney objected to instructing the jury that accomplice testimony must be viewed with distrust and must be corroborated. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 David Toman told police in June 2016 that he had witnessed a murder approximately two weeks prior. He led officers to a wooded area near Echo Lake where they found Wade Rautio's body beneath a log in the creek. An autopsy later revealed that Rautio had been stabbed twenty-five times, including fatal cuts to the jugular vein and carotid artery. Law enforcement arrested Melisa Crone, Christopher Hansen, Toman, and Wittal for their involvement in Rautio's murder. The State claimed that Crone was a drug dealer who had ordered Wittal to kill Rautio over a drug debt. The State charged Wittal with deliberate homicide. It separately charged Toman, Hansen, and Crone with accountability to deliberate homicide. Wittal's case proceeded to trial, and the jury convicted him. We summarize the evidence relevant to his claim on appeal.

         ¶3 Crone and Hansen lived together. Toman, Rautio, and Wittal also were staying at the house. Toman testified he drove with Hansen, Wittal, and Rautio out to the woods near Echo Lake after Crone kicked Rautio out of the house for allegedly stealing from her. Wittal, holding a large knife, told Rautio to get out of the car and to empty out his pockets. Upon entering a bushy area near the creek, Wittal began striking Rautio with the knife on his legs and arms. Toman stated that Wittal "was just slashing at [Rautio], just swinging his knife." Rautio exclaimed, "I'm innocent. Please don't kill me." Toman saw Wittal stab Rautio on the top of the head. Crone testified that Wittal told her that he stabbed Rautio about 100 times, including through the skull.

         ¶4 Hansen testified that he was under the impression they were going to "thump on" Rautio for stealing drugs from Crone. Hansen heard Wittal tell Rautio to get out of the car, and Wittal pulled out a "Bowie" knife. Hansen had heard Wittal say the night before that Wittal wanted to stab Rautio. Hansen saw Rautio run from Wittal toward the creek and back to the car. Hansen admitted striking Rautio to prevent him from escaping. At some point, Rautio tripped and fell over onto his back, "where Wittal was slashing on him with that big machete, that big knife." Hansen saw Wittal eventually lose the Bowie knife in the creek during the chase and struggle. Hansen admitted that he gave Wittal a second knife, which authorities later identified as the final murder weapon. Hansen claimed that he had nothing more to do with the murder other than hiding that knife after Wittal gave it back to him. Law enforcement officers found a large knife in the creek upstream from Rautio's body and the other knife at Hansen's workplace.

         ¶5 The State called two additional witnesses who were present at Crone's house before Wittal and the others left with Rautio and after they returned without him. Both testified to statements they overheard and to observations they made about the appearance of the men, including Wittal's wet clothing, and to seeing him put clothes in the fireplace. The prosecution also entered evidence from Wittal's cell phone, including text messages, phone numbers called, and cell phone locations.

         ¶6 Wittal took the stand in his own defense. He claimed that he was not involved in Rautio's murder and was not present when Rautio was killed. Wittal asserted that Crone had stolen his phone, and it was not in his possession when the text messages were sent or calls were made. Wittal's theory in essence was that Crone, Thomas, and ...


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