STATE OF MONTANA, Plаintiff and Respondent, v. DENNIS VERLE BERG, Defendant and Appellant.
No. 98-496.
STATE OF MONTANA
Decided November 23, 1999.
Rehearing Denied December 16, 1999.
1999 MT 282. 56 St. Rep. 1138. 296 Mont. 546. 991 P.2d 428.
Submitted on Briefs August 12, 1999.
For Appellant: Mariah Eastman, Eastman Law Office; Lewistown.
For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; Thomas P. Meissner, Fergus County Attorney; Lewistown.
JUSTICE TRIEWEILER delivered the opinion of the Court.
¶1 On September 2, 1997, by Information filed in the Tenth Judicial District Court in Fergus County, the Defendant, Dennis Berg, was chargеd with attempted sexual intercourse without consent in violation of
¶2 The following issues are presented on appeal:
¶3 1. Does
¶4 2. Did the District Court abuse its discretion when, as a sanction for failure to previously disclosе witnesses, it precluded Berg from calling those witnesses at trial?
¶5 3. Did the District Court err when it found that Berg was not prejudiced by ineffective assistance of counsel and, therefore, was not entitled to a new trial?
FACTUAL BACKGROUND
¶6 On September 2, 1997, Dennis Berg was charged by Information with the felony offense of attempted sexual intercourse without consent in violatiоn of
¶7 On March 13, 1998, three months after the date the District Court ordered Berg to provide his witness list, Berg filed his witness list with the District Court. Berg‘s witness list included the names of eight possible witnesses and included the language that “all witnesses named herein, including those previously endorsed on the Information... shall testify аs fact witnesses and as character witnesses ....” On March 13, 1998, the State filed a motion to exclude Berg‘s witnesses based on the untimely disclosure of his witness list. The State also amended the Information to include the offense of sexual intercourse without consent in violation of
¶8 On March 18, 1998, the District Court held a hearing to consider the State‘s motion to exclude Berg‘s witnesses. At the hearing, Berg‘s counsel assured the court that he only intended to call Mr. and Mrs. Kucera and Ms. Dirkson as impeachment witnesses. The District Court denied the State‘s motion based on Defendant‘s representations that he would only be calling the three impeachment witnesses. The court reserved the right to rule on any objеctions to Berg‘s other listed witnesses at the time of trial.
¶9 A jury trial was held on March 25 and 26, 1998. After the State presented its evidence, Berg began his defense. Mark Kucera and Gina Dirkson were called as impeachment witnesses and testified for the defense. Counsel for Berg then attempted to call Jim Johnson as a defense witness. The State immediately objected to Jim Johnson as a witness, based on the untimely disclosure of Berg‘s witness list and Thompson‘s representations at the hearing on the State‘s motion to exclude Berg‘s witnesses. The District Court sustained the State‘s objection to Jim Johnson‘s testimony, based upon the fact that the witness had not been disclosed within 60 days pursuant to the Court‘s Omnibus Order and thе witness was not mentioned by Thompson as a witness he intended to call at trial, during the hearing held on March 18, 1998. The District Court additionally held that the other three witnesses that Berg intended to call, Ronald Charlton, Connie Berg, and Ricky Charbonneau would not be allowed to testify for the same reasons. As a result, Berg presented no additional evidence. The jury found Berg guilty of attempted sexual intercourse without consent.
¶10 On April 27, 1998, Berg filed a pro se motion requesting that his counsel be excused, and for a new trial on the basis that he received
STANDARD OF REVIEW
¶11 We review a district court‘s imposition of sanctions pursuant to
ISSUE 1
¶12 Does
¶13 Berg contends that
If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with any of the provisions of this part or any order issued pursuant to this part, the court may impose any sanction that it finds just under the circumstances, including but not limited to:
(1) ordering disclosure of the information not previously disclosed;
(2) granting a continuance;
(3) holding a witness, party, or counsel in contempt for an intentional violation;
(4) precluding a party from calling a witness, offering evidence, or raising a defense not disclosed; or
(5) declaring a mistrial when necessary to prevent a miscarriage of justice.
(Emphasis added.)
¶14 The State points out that Berg failed to challenge the constitutionality of
¶15 It is our policy that we will use our inherent power of common law plain error review sparingly on a case-by-case basis. Weaver, ¶ 25. We conclude that Berg‘s constitutional claim regarding
ISSUE 2
¶16 Did the District Court abuse its discretion when, as a sanction for failure to previously disclose witnesses, it precluded Berg from calling those witnesses at trial?
¶17 Berg asserts that beсause the purpose for Montana‘s pretrial discovery statutes is to ensure that neither side is taken by unfair surprise, and the District Court‘s exclusion of Berg‘s witnesses did not further that purpose, it was an abuse of discretion. Berg contends that there would have been no surprise to the State if he had called a witness that the State had endorsed as its own witness. Berg points out that in the State‘s Information dated September 2, 1997 and the State‘s Amended Information dated March 13, 1998, the State named
¶18 The State contends that Berg violated
(6) Within 30 days after the arraignment or at a later time as the court may for good cause permit, the defendant shall make available to the prosecutor
(a) the names, addresses, and statements of all persons, other than the defendant, whom the defendant may call as witnesses in the defense case in chief ....
The State argues that because of Berg‘s violation of
¶19 The purpose оf Montana‘s discovery scheme is to enhance the search for truth. State v. Waters (1987) 228 Mont. 490, 495, 743 P.2d 617, 620. In addition, we stated:
Consistent with th[at] goal, Section
46-15-329, MCA , provides a means of enforcing discovery orders. It endows the district courts with the flexibility to impose sanctions commensurate with the failure to comply with discovery orders. The statute does not mandate automatic exclusion for noncompliance.By its terms, Section
46-15-329 provides that “the court may impose any sanction that it finds just under the circumstances.”....
Such discretion allows the court to consider the reason why disclosure was not made, whether the noncompliance was willful, the amount of prejudice to the opposing party, and any other relevant circumstances.
¶20 In this case, the District Court ruled on the exclusion of Berg‘s proffered witnesses during the trial and thus made no explicit findings as to the reasons for the severity of the sanction imposed against Berg. However, in its order denying Berg‘s motion for a new trial the District Court responded to Berg‘s assertion that the District Court erred when it excluded his fact witnesses as a sanction for his failure to prеviously disclose them. It stated:
It is alleged by previous counsel for the defendant that no witness list needed to be provided, as such witnesses were listed on the Information filed. The Court finds that the individuals contained in
the Information do not constitute a witness list provided by the defendant within the meaning of Montana Code Annotated § 46-15-323(6) . ... The purpose of requiring the defendant to provide a witness list is to prevent surprise at trial. To allow the defendant to never present a witness list to the State and then call witnesses at trial just because such are named in the Information would be contrary to this purpose and in contravention of the statute cited.
¶21 We agree with the District Court that Berg‘s witness list was untimely. Nevertheless, we concludе that the District Court‘s imposition of the harshest sanction available in this case, the exclusion of Berg‘s witnesses, was an abuse of the District Court‘s discretion. Our review of the record indicates that Berg‘s failure to timely disclose witnesses was not willful and that the State would not have been unduly prejudiced or surprised by Berg‘s noncompliance, since the proffered witnesses were known to the State. We agree with the District Court that a sanction was appropriate, however we conclude that under these circumstances, a less severe sanction should have been imposed.
¶22 Berg asserts that because the District Court erred by excluding his witnesses, this Court should remand this cause for а new trial. However,
¶23 An extensive review of both the trial transcript and the transcript of the hearing on Berg‘s motion for a new trial reveals that the exclusion of Berg‘s witnesses was not prejudicial. At the hearing on Berg‘s motion for a new trial, Berg‘s previous counsel testified that he believed Jim Johnson and Ronald Charlton to be the key witnesses in Berg‘s defense. He further testified that the substance of both Jim Johnson and Ronald Charlton‘s testimony would have been that they were both present at thе house where the alleged incident took place, and that they did not see or hear anything suspicious.
¶24 At trial, Officer David Sanders, the investigating officer, testified on cross-examination regarding statements he had elicited from Jim Johnson and Ronald Charlton. It had been established through previous witness testimony that Jim Johnson was present in the house where the alleged act took place, and that he was sleeping in the basement at the time the alleged act took place. Officer Sanders testified that Jim Johnson told him that: “I don‘t think he had much to
Q. Okay. How about Mr. Charlton?
A. Yes, I interviewed him.
Q. Okay. What did he tell you?
A. He didn‘t believe it happened.
....
Q. Okay. Well, what did he tell you about his whereabouts and his perspective on which to view the scene of the allegation?
A. He was in the living room, and he was like in charge of the baby at this time, because A.[S.] [the alleged victim] and — and Dennis [Berg] were having a cigarette, or he didn‘t know where they were. The baby started to stir, started tо make some sounds, so he went to look for A.[S.] and couldn‘t find her anywhere in the house. He went to the garage, opened the door, and saw A.[S.] and Dennis [Berg] in the garage he said smoking a cigarette, and I said, “Well, then, did you tell — did you tell A.[S.] that the baby was crying?” “No, I didn‘t. I just went back to the couch,” and I told him, “Well you went to look for her but you — once you found hеr then you didn‘t — you didn‘t tell her the baby was crying?” He said, “No,” and I just — I said, “I find that unusual that you would do that, that you would go to the trouble of looking for her and then when you found her not say anything.” I said, “Is it possible that you opened that door and saw her being assaulted?” and he said, “No, I didn‘t,” and that was basically the end of our discussion.
....
A. ...— and one other thing he did say is that when I asked “Did you — yоu know, why didn‘t you tell her the baby was crying?” he said, “Well, it was cold outside. I figured she would be in sooner or later. I mean soon.”
¶25 The record reflects that the substance of both Jim Johnson‘s and Ronald Charlton‘s testimony was introduced by Thompson through the cross-examination of Officer Sanders. Thus, in spite of the District Court‘s exclusion of Berg‘s two critical witnesses, the jury was essentially provided with the substance of their testimony.
¶26 Berg contends that Ricky Charbonneau would have testified that the event for which Berg was charged would have to have occurred, if at all, in January 1997, rather than during December 1996, as alleged, and that this would have established that the alleged vic-
ISSUE 3
¶27 Did the District Court err when it fоund that Berg was not prejudiced by ineffective assistance of counsel and, therefore, was not entitled to a new trial?
¶28 We review claims of ineffective assistance of counsel pursuant to the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Bone, 284 Mont. at 303, 944 P.2d at 740. The first prong of the Strickland test is to determine whether counsel acted within the range of competence demanded of attornеys in criminal cases. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The second prong of the Strickland test requires a defendant to show that counsel‘s deficient performance prejudiced the defense so as to deny the defendant a fair trial. Bone, 284 Mont. 293, 303, 944 P.2d 734, 740. In order to show prejudice, the petitioner must show that there is a reasonable probability that, because of the error, the defendant was denied a fair trial. Bone, 284 Mont. at 303-04, 944 P.2d at 740. “A rеasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
¶29 The District Court found that: “the first prong of the Strickland test may be met in this case: [c]ounsel for the defendant missed the Court‘s deadline to submit his list of witnesses to the state.” The issue on appeal is whether counsel‘s performance denied Berg a fair trial. Because we have previously held that the exclusion of Berg‘s witnesses at trial did not deny him a fair trial, the second prong of the Strickland test cannot be satisfied. Therefore, we conclude that the District Court did not abuse its discretion when it denied Berg‘s motion for a new trial.
¶30 We affirm the judgment of the District Court.
JUSTICES REGNIER, LEAPHART and HUNT concur.
JUSTICE NELSON specially concurs.
¶31 I concur in our opinion and in all that is said with the exception that I do not agree with the Court‘s conclusion that the trial court
¶32 Admittedly, precluding a party from calling witnesses is a severe sanction that should be judiciously imposed. Notwithstanding, in the case at bar, even assuming arguendo that Berg‘s failure to timely file his witness list was not wilful, he nevertheless failed to demonstrate any good cause or compelling justification for his failure to comply with the discovery requirements of
¶33 Under these facts, I cannot agree that the trial сourt abused its discretion in precluding Berg from calling other witnesses in his defense. The trial judge ought not to be held in error because of the Defendant‘s choice to ignore the discovery rules; to ignore the court‘s discovery orders; to be less than candid; and to play fast and loose with the court. In any event, since I am otherwise in accord with our analysis and the result reached, I concur.