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State v. Kaleb Edward Daniels

Supreme Court of Montana

September 10, 2019

STATE OF MONTANA, Plaintiff and Appellee,
KALEB EDWARD DANIELS, Defendant and Appellant.

          Submitted on Briefs: May 8, 2019

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC-2017-20 Honorable Michael F. McMahon, Presiding Judge

          For Appellant: Caitlin Boland Aarab, Boland Aarab PLLP, Great Falls, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Leo John Gallagher, Lewis and Clark County Attorney, Jeff Sealey, Deputy County Attorney, Helena, Montana



         ¶1 Defendant Kaleb Edward Daniels appeals the jury verdict and sentence of the First Judicial District, Lewis and Clark County, finding him guilty of attempted deliberate homicide, aggravated burglary, and tampering with or fabricating evidence.

         ¶2 We address the following issues on appeal:

Issue One: Whether this Court should invoke plain error review of the District Court's note on the verdict form regarding alternative lesser included offenses.
Issue Two: Whether there was sufficient evidence to convict Daniels of evidence tampering.
Issue three: Whether Daniels received ineffective assistance of counsel.

         We affirm.


         ¶3 On the afternoon of December 28, 2016, Marshall and Sonja Buus drove to their cabin near Wolf Creek. At trial, the Buuses testified to their perception of the events that followed. As they arrived, they noticed a strange vehicle, a Dodge Durango, parked next to their cabin. The Buuses observed the lights were on inside the cabin and realized they had come upon two men, later identified as Daniels and his accomplice, Jory Strizich, burglarizing their cabin. As the Buuses neared the back of their cabin, Sonja saw two individuals running away. Marshall then parked their truck, grabbed his coat, and ran toward the cabin yelling, "What the hell are you doing in my cabin?" Daniels ran from the cabin, got into the Durango, and started it. Marshall approached the Durango, leaned into the vehicle, and yelled at Daniels, "What the hell are you doing here?" Marshall saw Daniels reach into his pocket and pulled out what Marshall described as a "chrome-plated automatic pistol." Daniels pointed the handgun in Marshall's face and yelled, "Get back" or "Get out." Marshall backed up and told Daniels to put the gun away. Sonja then retrieved Marshall's .45 caliber semiautomatic handgun from their vehicle and ran it to Marshall before retreating towards the cabin.

         ¶4 Marshall continued to yell at Daniels to "put the God damn gun away." Daniels, who by now was out of the vehicle, aimed the gun towards Marshall and pulled the trigger. Marshall testified that he heard a click, which he interpreted to mean there was no bullet in the chamber of Daniels' gun or that the bullet was defective. Marshall then heard Daniels chamber a round. As he continued to yell at Daniels to put the gun away, Marshall noticed Strizich approaching him from the other side of the Durango. Marshall yelled at Strizich to "[s]tay the hell away." Despite his warning to Strizich, Strizich kept coming towards Marshall. So, Marshall fired a round at the ground. Stizich remained undeterred. Marshall intended to shoot the ground again, but, as he pulled the trigger, Strizich "step[ped] into the bullet," yelled, "you shot me," and fell behind the vehicle. Marshall told Strizich to stay put and that the Buuses would get him some help, but Strizich began crawling away.

         ¶5 At this point, according to Marshall's testimony, Daniels fired in Marshall's direction. Marshall then fired a shot at some trees near Daniels, with the intention of scaring him. Daniels ran off to one side of the property, and Marshall circled the cabin and witnessed Daniels run down toward the road, stop and fire a round back over his shoulder in Marshall's direction. Daniels repeated this maneuver as he ran east down the road. Marshall again offered to help Strizich, but Strizich continued crawling down the road without stopping. At 2:16 p.m., Sonja called 911 and reported the incident.

         ¶6 The Buuses entered their cabin following the shooting incident and noticed items from around the cabin had been collected and stacked by the door, the television set was unplugged, a hammer that did not belong to the Buuses was in the cabin, and drawers were opened and belongings were rifled.

         ¶7 After Daniels fled from the Buus property, he ran toward a neighboring property. There, Daniels approached Michael Ettinger, the Buuses' neighbor, who testified that Daniels asked for a ride into Wolf Creek to get gas. Ettinger agreed, and the two men drove to the gas station. Although Ettinger testified that he did not observe a gun on Daniels' person, Daniels was wearing a baggy jacket that could easily have concealed a gun. When the two men arrived at the gas station, Ettinger testified that Daniels set off on foot in the direction of Great Falls. Ettinger testified that he then noticed multiple law enforcement personnel gathering and grew suspicious of Daniels. At 3:02 p.m., Ettinger called 911.

         ¶8 Another Wolf Creek resident, Jerry Burgin, was at home with his wife when he saw Daniels open the door to the Burgins' pickup and then walk up to the Burgins' home and knock on the door. Burgin had learned from local news reports that there was a shooting in Wolf Creek, that a suspect was at large, and that the suspect was described as wearing a red jacket. Daniels was wearing a red jacket. At 5:19 p.m., Burgin called 911.

         ¶9 At 5:25 p.m., Lewis and Clark County sheriff deputies apprehended Daniels near the Burgins' residence, over ten miles from where the initial incident at the Buus property occurred. Daniels initially provided a false name but eventually told the deputies his identity. When Deputy Jeffery Stoltz, one of the officers who apprehended Daniels, conducted a pat down search, Daniels told him, "go ahead and search" because he "wasn't going to find anything." When Daniels was arrested, he was not in possession of a firearm.

         ¶10 Deputy Paul Weber went to the Buus property immediately following Sonja's 911 call. Deputy Weber testified that Marshall gave him the keys to the Durango that Daniels and Strizich had left on the Buus property. Marshall also gave Deputy Weber his .45 caliber handgun, from which Marshall estimated that he had fired two shots.

         ¶11 The day after the incident, on December 29, 2016, Sergeant Brett Friede brought a metal detector to the Buus property to search for shell casings. Sergeant Friede was instructed to look for .45 caliber shell casings, which would have been ejected from Marshall's gun. Sergeant Friede testified that he located one spent .45 caliber casing in the snow between the Durango and the cabin. Sergeant Friede then swept the area where Marshall indicated Daniels had been standing when he fired at Marshall. Sergeant Freide also testified that he searched down the road and located tracks where Strizich had fled and been found by a law enforcement dog team. The snowplow had driven through prior to the deputies having an opportunity to investigate the scene, and Sergeant Friede was unable to locate a weapon or other shell casings along the road or in the ditch next to the road.

         ¶12 Detective William Pandis testified that his investigative team recovered a total of three .45 caliber shell casings from Marshall's gun near the vehicles and on the east side of the Buus cabin. Detective Pandis testified that the only .45 caliber bullet recovered was the one in Strizich's leg. Detective Pandis and Sergeant Friede testified that they recovered five empty .25 caliber shell casings near the southwest corner of the cabin-two were located by sight and three by the metal detector. Detective Pandis also recovered two .25 caliber bullets from an embankment where Sergeant Friede located the shell casing with the metal detector. The State's expert witness on firearms, Lynette Lancon, testified that the five .25 caliber shell casings recovered by deputies were fired from the same gun. Marshall testified that he did not know of any friend, relative, or guest who had used a .25 caliber gun on the Buus property.

         ¶13 At trial, the State also introduced evidence from a game camera mounted on the Buus property at the time of the incident. The State presented stills from the game camera that captured Strizich and Daniels and footage of the Buuses standing near the Buus cabin. Daniels' DNA was found on a cigarette butt outside of the cabin, and Daniels' fingerprints were found on a tote inside the cabin.

         ¶14 After obtaining a search warrant, the sheriff deputies also searched the Durango. Detective Robert Kinyon located two pistols on the passenger's seat: a .45 caliber 1911 handgun in a case and a .40 caliber Smith & Wesson handgun with the serial number filed off laying directly on the seat. Deputies also found a set of bolt cutters and other items in the vehicle.

         ¶15 Sergeant Friede testified that it would be extremely difficult to locate a gun disposed of in the area between the Buus property and the Ettinger property or surrounding area, describing that even using a metal detector to sweep: "[Y]ou have to be within a foot and a half of [an object] to read it. . . . [Y]ou can't sweep through the trees, or tall grass or anything else. . . . [The metal detector] just doesn't work." Deputies did not return to sweep the area after the snow melted in the spring, and the handgun Daniels allegedly used in the shooting was never recovered.

         ¶16 On January 17, 2017, the State charged Daniels with attempted deliberate homicide, a felony, in violation of § 45-4-103(1), MCA, and § 45-5-102(1)(a), MCA; aggravated burglary, a felony in violation of § 45-6-204(2), MCA; and tampering with or fabricating physical evidence, a felony in violation of § 45-7-207(1)(a), MCA. The State later amended the information to include an alternative charge of aggravated burglary by accountability, a felony in violation of §§ 45-2-301, -302(3), 45-6-204(2), MCA. Daniels pled not guilty to the offenses.

         ¶17 On July 10-12, 2017, the District Court presided over a three-day jury trial. During voir dire, the State described the four charged offenses but explained that the jury would only be asked to return verdicts as to three counts.[1] During opening statements, the State told the jury:

[W]e're going to ask you to find [Daniels] guilty of Count 4, which is tampering with or fabricating physical evidence. And that is for ditching the .25 caliber pistol. Deputy Stoltz and Detective Pandis will tell you that Mr. Daniels no longer had the .25 caliber pistol when he was arrested. He ditched that sometime between leaving the Buuses' cabin, running down the road, and the two hours when he was arrested in Wolf Creek.

         ¶18 During closing arguments, the State told the jury:

You know, the other piece of this, was there a gun involved? The State alleges that [Daniels] committed the offense of tampering or fabricating physical evidence by making that gun unavailable. He got rid of the gun. And so if you think there was a gun, and you think that he was the one [who] got rid of it, then that is tampering with or fabricating physical evidence.

         The State later concluded, "And the gun disappeared. That is tampering." Daniels argued at trial that he did not use a gun during the incident, and therefore, he could not have "ditched" the gun after fleeing. Daniels requested and received lesser included and alternative offense instructions for the charges of burglary and burglary by accountability.

         ¶19 After the parties presented their cases-in chief, and following in camera discussions, the District Court concluded, "the State will rest. There will be no motions for a directed verdict by the defense under 46-16-403." The District Court discussed the jury instructions and verdict form with both parties, and neither party raised any objection to the verdict form, other than to renumber the offenses charged.

         ¶20 On July 12, 2017, the District Court instructed the jury, explaining each distinct offense and that the jury must decide each count separately. The District Court instructed that Daniels "may be found guilty or not guilty of any or all of the offenses charged, except for the alternative counts. Your finding as to each count must be stated in a separate verdict." The District Court also included a separate instruction clarifying the burglary charges and how the jury was to proceed.[2]

         ¶21 During closing arguments, the State described the verdict form and the analysis for the alternative or lesser included offenses. Daniels' counsel also described all the charges and the alternative or lesser included offenses. The ...

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