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State v. Hocevar6/19/2000
en error to have affirmed on that basis because, as noted above, the charges could not have been part of the "same transaction" for purposes of joinder-they did not share a "single criminal objective." Section 45-2-101(7), MCA (emphasis added).
The State's actual position with regard to the former prosecution statute was that Hocevar's conduct in relation to Wesley's overdose was "not necessary or incidental to the accomplishment of any criminal objective related to the conduct alleged [with respect to Mathew's death]." (Emphasis added.) It is clear to me that the State correctly maintained that the charges could be joined because they were of a similar nature and logically linked by evidence of motivation while at the same time maintaining that Hocevar's conviction did not bar a subsequent prosecution because Mathew's death was not incidental or necessary to the accomplishment of Wesley's overdose. In no way are these positions inconsistent.
The resolution of this issue does not depend on one of the State's alternative arguments in its brief supporting joinder below, that is simply a red herring. The precise issue, as correctly framed by the Court, is " hether further prosecution on counts III, IV, and V is barred by § 46-11-503, MCA." Court's Op. at 123. I would conclude that a conviction on one of the charges relating to Wesley's overdose does not preclude a subsequent prosecution on the charges relating to Mathew's suffocation because they do not arise out of the "same transaction." The conduct underlying the charges occurred on different dates, involved different victims, and, while they shared a common explanation of motive, the MSBP evidence, the acts were not in furtherance of a common criminal objective. Hocevar did not smother Mathew in order to further the criminal objective of endangering Wesley, nor was the smothering of Mathew necessary or incidental to Wesley's overdose.
Accordingly, I would affirm the District Court conclusion that a subsequent prosecution on charges arising from Mathew's death was not precluded on account of a previous conviction arising from Wesley's overdose.
JIM REGNIER
Chief Justice Jean A. Turnage and Justice Karla M. Gray, join in the foregoing dissenting opinion.
J. A. TURNAGE
KARLA M. GRAY
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