*1 MONTANA, Respondent, The STATE OF v. L.R. Plaintiff BRETZ, Appellant. No. 13826. 11, Submitted Dec. 1978. 13, 1979. Decided June Rehearing Aug. Denied 1979.
Certiorari Denied Dec.
1979. See
Mike Greely, Robert Atty. S. Asst. Atty. Budewitz, Gen. Thomas (argued), Kalispell, County Atty. (argued), Townsend, for and plaintiff respondent.
MR. HARRISON delivered the of the Court. opinion JUSTICE 1, 1976, On December after a trial in the by jury District Court District, Eighth Honorable A.B. Martin Judicial defendant was presiding, convicted of fourteen counts of grand two larceny, counts of and money false obtaining property by and two counts pretenses, false preparing evidence. He was sentenced to fourteen-year terms on each prison count with the ex- of two counts of ception false evidence which preparing offenses were found to be incident to other offenses for which defendant was sentenced. The sentences were so that defendant was grouped sentenced to 56 ultimately the last 30 years prison, to be years on the condition that defendant suspended reimburse the victims of the offenseswithin one from the time of year Defendant sentencing. was unable to make restitution within the time and prescribed brings appeal.
In view of the and number of the issues complexity presented review, summaries, factual insofar as are they will ac- pertinent, our company discussion of individual issues. issues for review presents twenty-one this Court:
1. Whether defendant was denied his to a trial right speedy under the Sixth Fourteenth Amendments to the United States II, Constitution Article Section 24 of the 1972 Montana Constitution. to the effective was denied his right
2. Whether Amendments and Fourteenth counsel under Sixth assistance of II, 4 and 24 and Article Sections Constitution to the United States 1972 Montana Constitution. of the a fair and his to trial by was denied right 3. Whether defendant to the Amendments under the Fifth and Fourteenth jury impartial II, 4 and 24 of the and Article Sections States Constitution United and trial extensive pretrial virtue of Montana Constitution publicity. mo- defendant’s denying erred Whether the District Court
4. showing prob- due to the lack of the information quash tion to cause for its filing. able the double was barred by of this case Whether prosecution
5. United States Con- to the of the Fifth Amendment clause jeopardy of collateral estoppel doctrine and the accompanying stitution R.C.M.1947, 95-1711, now sections of section the provisions -505 MCA. through 46-11-501 a new to grant in refusing erred the District Court Whether
6. facts knowledge a juror’s independent the basis of trial on case. and unusual cruel sentence constituted defendant’s 7. Whether *7 to the Amendments Fourteenth and under the Eighth punishment II, of the and 28 22 and Article Sections Constitution States United of 1972. Constitution Montana 30 of de- of the last years conditioning suspension
8. Whether restitution sentence on defendant’s payment 56 year fendant’s and constituted cruel was improper December punishment. unusual con- was hearing properly defendant’s sentencing
9. Whether ducted. certain admitting erred in Court Whether the District
10. evidence. the essential elements of the of- the State proved Whether
11. false evidence. of preparing fense
261 larceny 12. Whether the State the essential elements of proved bailee. a fundamentally 13. defendant was denied his right Whether Amendments to the fair trial under the Sixth and Fourteenth II, and Article United States Constitution Section acts on the Montana because of over-zealous alleged Constitution part prosecution.
14. Whether defendant denied the his present opportunity defense.
15. Whether the District Court erred in certain allowing with to reasonable fees. testimony respect attorney’s 16. Whether the District Court erred in other excluding testimony respect to reasonable fees. attorney’s con- testimony 17. the District erred in allowing Whether Court other crimes of the accused. cerning
18. Whether the District Court erred in the State to im- allowing its own witness in the absence of a peach showing surprise by State.
19. Whether the District Court erred in allowing testimony Sanford. Larry 20. Whether the District Court erred with to its in- respect jury structions to the offensesof relating obtaining money property false pretenses false evidence. preparing
21. Whether the District erred in certain of Court refusing defendant’s instructions and in certain of the in- jury State’s giving structions.
We will address these issues in the order of their presentation. SPEEDY TRIAL table of dates and events relevant to our con- following
sideration of whether defendant was denied his to speedy right trial:
262
DAYS ELAPSED DATE ACTION 0 filed Information 7/30/74 6 Arraignment 8/5/74 48 New filed Information 9/16/74 filed 58 Motion for of Venue Change 9/26/74 77 of Venue granted Change 10/15/74 78 order State appeals 10/16/74 260 order Court reverses Supreme 4/16/75 282 filed Remittitur 5/8/75 294 Information filed Amended 5/20/75 364 motions filed Defense procedural 7/29/75 393 motions filed response State’s 8/27/75 of de- and arraignment of motions Hearing 9/17/75 414 fendant 478 conference pretrial moves continue State 11/20/75 517 trial motions Pretrial speedy 12/29/75 conference— the United both is trial guaranteed to speedy right VI; U.S.Const., 1972 Amend. Constitutions. and Montana States minimum, standard, as a Mont.Const., II, The federal 24. Art. § clause of the Fourteenth due process states imposed upon 30, (1970), 90 S.Ct. 398 U.S. v. Florida Dickey Amendment. See 374, (1969), 89 26; 393 U.S. 1564, Hooey Smith v. L.Ed.2d 26 575, 607. 21 L.Ed.2d S.Ct. 2192, 2182, 530, 514, (1972), 92 S.Ct. 407 U.S. v. Wingo
Barker 116-17, 101, speedy in an analysis touchstone is the L.Ed.2d 33 394, 584 (1978), Mont. 178 v. Tiedemann issues. State trial See 36, (1978), 582 P.2d 1287; 1284, 178 Mont. v. Collins State P.2d 735, 385, (1978), 578 P.2d 1179, 1186; Mont. 176 v. Cassidy State 516, (1977), 173 Mont. 737; District Court ex rel. Briceno v. State 377, 372, 553 (1976), 162, 164; Mont. 170 v. Keller P.2d State (1976), 170 1016; Court 1013, v. District ex rel. State P.2d Sanford 1007; 196, 199, State v. Steward 551 P.2d Mont. 181; v. Crist 385, 389, Fitzpatrick 543 P.2d 168 Mont. *9 382, 388, (1974), 1322, 1325; 165 Mont. 528 P.2d State v. Sanders 209, 213, (1973), 372, 163 Mont. 516 P.2d 375. Barker, more than five years the was not tried until
In petitioner The in that case delay had from the time he was arrested. passed was tried resulted from the fact that Barker’s accomplice largely Barker, 407 six before convicted. In times altogether finally being 521, 2187, 111, at 33 at the U.S. at 92 S.Ct. L.Ed.2d Supreme Court noted:
“A . . . difference between the
to
trial
the ac-
right
speedy
cused’s other constitutional
is that
of the
rights
deprivation
right
work to the accused’s
may
is not an uncommon
advantage. Delay
defense tactic. As the time between the commission of the crime
and trial
witnesses
become unavailable or their
lengthens,
may
memories
fade. If the witnesses
its
may
support
prosecution,
weakened,
case will be
sometimes
so. And it is the
seriously
prose-
Thus,
cution which carries the burden of
unlike the
to
proof.
right
self-incrimination,
counsel or the
free from
right
compelled
deprivation
trial does not
se
right
speedy
per
prejudice
added.)
accused’s
ability
(Emphasis
defend himself”
The Court went on to reject two
which could have
approaches
eliminated a
deal of
great
The
uncertainty
protecting
right.
(1)
were that the
suggestions
Court
hold that the Constitution re-
a
quires
criminal defendant to be
offered trial within a specified
(2)
time
some form
period,
adopt
of the demand-waiver doc-
trine. “The demand-waiver doctrine
that a defendant
provides
waives
consideration of
his
trial for
right
speedy
any period
Barker,
to which he had not demanded a
prior
trial.”
407
atU.S.
525,
2189,
92
at
33
S.Ct.
L.Ed.2d at 114. The Court found each of
—
these
too inflexible
“the fixed-time
approaches
because it
period
further
goes
than the Constitution requires; the demand-waiver
rule because it is
insensitive to
which we have deemed
right
—
test,
fundamental”
“a
instead
in which
adopted
balancing
the conduct of both the
and the defendant are
prosecution
Barker,
529-30,
2191-2192,
264 ad cases on an hoc that courts must trial
Noting approach speedy basis, to be considered as part the Court identified four factors the reason for delay, test: “Length delay, balancing to the defendant.” defendant’s assertion of his right, prejudice 2192, Barker, 530, 33 We will at 92 S.Ct. at L.Ed.2d 117. U.S. we as examine defendant’s discuss each of these factors turn v. in the case. State Mont. claim instant Sanders 372, 375. 516 P.2d addressed delay. delay Court Supreme Length of factor follows: is to some extent delay triggering
“The length which is prej- there is some delay presumptively mechanism. Until udicial, into the other factors inquiry there is no necessity *10 Nevertheless, of the of the imprecision into the balance. because go trial, such an that will delay provoke to the speedy length right of the circumstances necessarily peculiar is dependent upon inquiry can be the that delay the case. To take but one example, of a less considerably crime is than an street ordinary tolerated for for 530-31, Barker, serious, 407 U.S. at conspiracy complex charge.” at at 33 L.Ed.2d 117. (Emphasis supplied.) 92 S.Ct. a one. Defendant that this case is question complex There no 4,316 of transcript “case of in his brief that the consists noted files. were hundreds full of court There . . . and five volumes pages that, we addition to and admitted at trial.” In of exhibits offered addressing to this Court on appeal briefs submitted note the 300 in are over for review pages issues twenty-one presented Thus, considerably be tolerated is here that can the delay length. an street crime. than for ordinary more so, note, We case is in extremely par- Even the in this delay long. ticular, the the of appeal that the 205 exhausted State’s days the State. Section venue order must change charged against Therefore, 95-2407, R.C.M.1947, we now section 46-20-205 MCA. of an Information that the 517 between the initial days filing find lack speedy case and defendant’s motion to dismiss for in this of this case is of sufficient under the circumstances trial length 265 the into the other factors enumerated in Barker and inquiry trigger as this Court. adopted previously factor,
Reason this delay. Addressing Supreme Court stated:
“Here, too, different
should be
to different
weights
assigned
reasons. A deliberate
the trial in order to
attempt
delay
hamper
the defense should be
A
weighed heavily against
government.
more
neutral reason such
or overcrowded courts
negligence
should be
less
but nevertheless should be con-
weighed
heavily
sidered since the ultimate
for such circumstances
responsibility
must rest with the
rather than
government
defendant.
reason,
wtiness,
a valid
Finally,
such as
should serve
missing
Barker,
at
justify appropriate delay.”
U.S.
at
S.Ct.
2192,
ty fashion. It proceeded orderly demonstrates one of 54 when defendant’s defense mo- delay days whole, tions were overdue. record as a most serious Viewing on the of the to be the 205 delay days part prosecution appears 15, 1974, taken the State’s October up appeal change venue order. There is no to show in the showing any attempt record “deliberate delay any way attempt the trial in order to the defense.” It that this delay hamper appears have been the result of some on the delay may negligence part State, but crowded calendars and courts were also involved and should less but never- the time “be accordingly, weighed heavily theless considered.” *11 a
Defendant relies on Federal District decision in a heavily Court case, (1978), CY-77-61-H, related In the Matter Carden decided of 12, 1978. Defendant asserts that the most element May significant of that decision to dismiss for lack of trial was the Court speedy reason for the the of the Carden Informa- delay, specifically length tion.
The State addresses the document and length charging occasioned it in the terms: delay by following
266 and the of the sec-
“The dismissal of the first information filing were three individuals delay; ond information constituted no defendant, and six individuals which did not prejudice dropped added, either of the defendant against the basic motions were but to be new individuals had the same. The six information remained suit. added, with another defendant would prejudiced or the doubled, of the confusion but that was because were The counts statutes, and it was matter pleading larceny under the old alternative, same individuals with the in the same counts involved.” is not pres- in Carden which negligent
Another factor considered its un- to the State by was attributable delay instant case ent in the subsequent and the appeal. Allen Judge timely disqualification Allen disqualify Judge decision to held that “the The Federal Court defend- over the advantage a tactical in order to gain reached Mont. v. Crist ants.” See also Fitzpatrick delay appointment four-month P.2d involving counsel. case be that each instruction Court’s
The wisdom of Supreme at this point. “ad hoc” basis becomes apparent on an considered the dis- by influenced strongly was undoubtedly The Court it was and held after seven months Allen Judge qualification here, not such allegation We have no advantage. deliberate gain situa- factual and a clearly distinguishable even willful negligence, tion. the third In discussing the right. Assertion factor.in test, stated: Court Supreme
Barker balancing related closely asserts his right how a defendant “Whether and of his efforts The strength we have mentioned. factors other to some extent of the delay, affected length will be the personal prej- most delay, particularly reason for the identifiable, he udice, experiences. always readily which is not is to likely the more the deprivation, The more serious then, trial his right, assertion of speedy The defendant’s complain. whether the determining weight evidentiary is entitled to strong
267
of the
We
that failure
defendant is being deprived
right.
emphasize
will make it difficult for
defendant to prove
to assert the right
531-32,
Barker,
trial.”
In to the trial’s commencement. We cannot ignore trial speedy prior fact, however, defendant submitted his motion that at the time call he had indicated to Bradford that he intended to Judge already witnesses and that he felt the trial would last two more than 120 months. At various times over the next several months defendant case, asserted time and that because of the complexity again This factor he could not to defend himself. prepared possibly in the time between fil- weighs heavily against any prejudice lapse comment, and and substance to the Barker trial ing gives trial denial is not se to defendant’s speedy prejudicial ability per defend himself. factor
Prejudice. follows: prejudice analyzed course, should be assessed in the of the in- “Prejudice, light terests of defendants which the was trial speedy right designed (i) This Court has identified three such interests: protect. prevent incarceration; (ii) to minimize and con- oppressive pretrial anxiety accused; (iii) cern of the and to limit the that the defense possibility these, last, will be Of the most serious is the because the impaired. of a defendant his case skews the inability adequately prepare fairness of the entire witnesses die or during If system. disappear is obvious. There is also if defense delay, prejudice prejudice witnesses unable to recall events of the distant past. are accurately however, in the record Loss of is not reflected memory, always Barker, be shown.” because what has been can forgotten rarely 2193, 33 at 118. at 92 S.Ct. at L.Ed.2d U.S. felt he was Defendant lists five in which he ways prejudiced witnesses; (2) (3) “(1) death of pre- economic delay: hardship; duration; (4) of a now difficulty finding trial publicity long witnesses; (5) stress and emotional State’s interviewing strain.” case defendant was only defending
The instant case was not the disbarment before Com- proceedings at this time. Aside from Court, and this involved mission on Practice civil case. The emotional stress three other criminal cases one *13 of time hardship consumption and strain and economic these other was a extent with commingled proceedings to large means. Defendant con- is difficult to assess fault by any precise it died, but there was no credible tends that five defense witnesses had died, what their would testimony evidence as to when they given been, A mere self- whether it went to one or more counts. have which not meet the test Barker required by statement does serving a assertion not self-serving demands a of prejudice, merely showing there have been some prejudice. may from Barker: Continuing Application. a as either four factors identified above
“We
none of the
regard
of a
condition to the finding
deprivation
or sufficient
necessary
Rather,
and must
are related factors
they
trial.
right
speedy
be
as may
with such other circumstances
be considered together
sum,
courts
qualities;
these factors have no talismanic
relevant. In
a
and sensitive balancing process.”
must still
in
difficult
engage
2193,
Barker,
533,
at 118.
at
33 L.Ed.2d
407
at
92 S.Ct.
U.S.
Court,
Barker
the test to the
five-year delay
in applying
but went on to say;
deficiencies
found certain
present
factors, however,
defi-
these
outweigh
“Two counterbalancing
. . .
was minimal.
ciencies. The first
that prejudice
is the
the absence of serious prejudice,
“More
than
important
Barker,
at
407 U.S.
a
trial.”
fact that
did not want
speedy
Barker
2194,
534,
“. . . was denied this constitu- that a defendant indeed to rule luctant one, indicates, this as does a record that strongly tional on right Barker, at trial.” U.S. not want a speedy that the defendant did at 120. at 33 L.Ed.2d 92 S.Ct. n Barker, of sufficient case, we cannot find showing In of dismissal harsh remedy the extremely to invoke actual prejudice ob- addition, trial reflects that speedy the record the cause. In with defendant periodically commingled again were jections com- the trial trial day for ready up he could not claiming course, time. With for additional menced, a need indicating, numerous to submit the right defendant has that the recognition trial, resulting delays motions prior and complex procedural Much of the com- to the State. charged exclusively now be cannot defense of defendant’s of this case is the result and delay plexity to his advantage that resulted now use delay he cannot an actual showing prejudice. trial without to the speedy respect trial, speedy record a desire genuine in this We cannot find result, prejudice minimal. As makes any prejudice which no other extraor- and there are demonstrated asserted but never that defendant to rule this Court circumstances compel dinary to a trial. speedy his constitutional right was denied OF COUNSEL ASSISTANCE EFFECTIVE Court, “.. . issue states his brief to this In *14 due to counsel were incompetent here is not that the trial raised trial, at but that were rendered they of skills or actions their lack of adequate denial to them and ineffective State’s by impotent at which had in they the defense until up point funds to prepare to time adequate prepare.” First, three he claims is divided into parts.
Defendant’s argument failure created the District Court’s by there was a effect” “chilling Second, defense counsel. for to funds in advance appointed provide available, hav- delays time funds became that he argues motions, there to certain of the State’s resistance been the result ing a defense. Thus State time in which to prepare was inadequate of either the awkward position the defense in had allegedly put or, to for a continu- move having to trial to having go unprepared, Third, com- ance, trial claim. their sacrificing speedy an in- him with failed to provide the District Court plains the At- of the employed the effect manpower to meet vestigator does not of this case. Defendant General in prosecution torney cases but in all an investigator must supply that the State argue 270 of the of the case should have in this case because complexity
that it listed on the Information. and the number of witnesses State’s counsel was never defendant’s any question appointed There arose with whether respect would be compensated; problem advance. The record does were entitled to be compensated they because that defendant ever continuance requested not indicate and hence he is in poor of the claimed of problem preparation two to allege prejudice. Finally, appointment position need for an for the for defendant obviated any investigator counsel and in addition the court did for trial general preparation of an in Alaska who worked for authorize the hiring investigator the defense. from the case moved withdraw retained counsel
Defendant’s subsequently Court appointed 1975. The District in November real 1976. The first January problem for defendant in counsel 31, 1976, when the State counsel arose on March appointment order for interim March 23 to set aside the District Court’s moved $9,068.74. argued amount of The State in the counsel payment as that the county, opposed was that the excessive payment The matter State, of defense counsel. was liable payment Court, of Barron to this Application was the State appealed 218, affirmed P.2d 70. This Court Mont. 552 an evidentiary the case for and remanded Court’s ruling District counsel. due amount money appointed to determine the hearing on held A hearing was issued 1976. July The decision ordered payment in the District Court’s which resulted August fees and ex- $9,760.43 for their to defense counsel $5000 and still not received counsel had defendant’s By September penses. on that day permit the District Court and moved money their action on the to dismiss the counsel their withdrawal The mo- Attorney General. on the part of misconduct ground *15 on rule was based disciplinary to their withdrawal tion permit an at- when DR2-110(B)(2) withdrawal mandatory addressing another violating without continue his employment cannot torney rule, this case DR6-101: in disciplinary to act competently: “Failure
(A) A shall . . . not: lawyer
(2) Handle a matter without in the legal preparation adequate circumstances.”
The motion was submitted 21 to the scheduled days prior day trial, and defense counsel received their funds the following day.
The with problem defendant’s this issue is argument concerning that he has made no showing that the lack of alleged preparation on of his counsel in part appointed prejudiced him In any way. fact, asks us his presume counsel were ineffective because were not in they far advance. Defendant compensated does reveal not what his counsel had been able to accomplish during time had been on his case. We they can only speculate whether resulted due any lack of prejudice alleged preparation on the of defendant’s counsel. part without motion for Again, continuance these on and without grounds of actual showing we prejudice, cannot that counsel were rendered presume thereby ineffective.
PUBLICITY AND FAIR TRIAL Falls, concentrated in Great publicity, especially
Statewide 29, case of this at each On accompanied prosecution stage. July 1975, District to dismiss the charges defendant moved the Court or, alternative, continue the date for trial due to extensive The court denied the motion. Defendant publicity. again pretrial on December 1975. The court denied this moved for dismissal as well. motion after raised the issue of pretrial publicity
Defendant again at trial October 1976. that time By his on swearing jury statewide heavy publicity defendant had become the object and acquitted he had been charged because of trial which Also, a assassinate the General. Attorney soliciting persons was imminent in which the Attorney statewide election general a candidate. gubernatorial General the trial of the case. It continued during publicity *16 a
culminated in the door-to-door distribution of newsletter political was entitled the “Montana Gazette” in which defendant’s name 1976, 27, a defendant filed motion a mentioned. On October mistrial because of the publicity. that we should under the facts of this argues presume,
case, that mid-trial reached the nonsequestered jury. publicity have He on to that the trial court should examined the goes argue (1) (2) their contact with the material and its jury concerning prej- is udicial effect them. his it the At- upon Throughout argument, General’s in the that defendant ob- torney participation publicity to most jects strongly. a cuts is we have sword that both The record clear
Again, ways. and evidence defendant’s own to use substantial regarding attempt the media to his as well his failure to move for advantage change 27, venue the basis of the on October on For publicity. example, Gilbert in defendant moved to hold prosecutor contempt been seen on the that the had grounds prosecution talking partially the Great Falls Tribune had reporters. Coincidentally, predicted this action and stated that defendant had contacted reporter. indicative The theatrics reflected in the record defendant is not over the amount of of conduct to show concern tending genuine and when cannot be con- and trial publicity reported pretrial af- an demned. the motion not Additionally, accompanied court, it act. no facts which could leaving again, upon fidavit that: “The court has observed and read the court did state The Tribune, and have at least in the Great Falls they publication, And how that is else. nothing seemed straightforward reporting, is me.” ever prejudicial beyond going that, that trial defendant’s court Beyond argument determine whether the have conducted poll jury should the “Montana Gazette” is properly members had seen not copy as defendant made motion for the before this inasmuch no Court raises the issue for the first time in this in the trial court and poll Court. MCA, 95-1710, 46-13-203 sets R.C.M. now section
Section case to obtain relief in of untoward proper out the procedure publicity:
“(a) a change or the move for may The defendant prosecution exists in the which county of trial on the there ground place a fair trial be had such cannot charge prejudice pending (15) days shall be made at least fifteen motion county. such shown, trial, unless, cause it be made may for good prior thereafter.
“(b) affidavit The motion shall be in writing supported *17 alleged. state facts the nature of the showing prejudice which shall file counteraffidavits. The court The defendant or the state may a and determine the merits of the motion. shall conduct hearing “(c) where determines that there exists in the county If the court that a fair trial cannot be such pending prejudice prosecution had it shall transfer the cause to other court of competent a trial be where fair had.” jurisdiction any county may defendant, case did Unlike the cases cited not spawn Rather, defendant has editorials for defendant’s conviction. crying his statement of inferences and this Court with simply provided (1921), 60 and these are not See State v. Davis enough. conclusions 426, 431, 421, (1976), v. 169 Mont. 199 P. 422. In State Lewis 290, 297, 518, 522, we quoted Mont. 546 P.2d with approval 717, 366 from Irvin v. Dowd U.S. excerpt following 1639, 1642, 756. It seems especially ap- 81 S.Ct. L.Ed.2d in the instant case: propriate however, be of totally
“It is that the required, jurors ignorant not swift, and and issues In these days widespread the facts involved. communication, can be ex- an case important diverse methods in the vicinity, arouse the interest of the public pected as will have jurors best to serve not scarcely any qualified those the merits of the case. some impression opinion formed cases. To hold that the mere ex- This is true in criminal particularly or innocence of guilt notion as to the any preconceived istence of accused, more, is sufficient to rebut the presumption an without an impossi- a would to establish juror’s impartiality prospective aside ble standard. It is sufficient if the can his juror lay impression and render a verdict based on the evidence presented or opinion court.” above,
As set defendant has failed to meet his burden of forth the effect of the the nature of the showing publicity, publicity, a He failed to meet of such drastic has also necessity remedy. of venue and requirements moving change procedural as to the containing specific allegations an affidavit submitting nature of the publicity. prejudicial FILING INFORMATION
PROBABLE CAUSE FOR 16, 1974, the filed an affidavit in sup On State September defendant. leave to file an Information against of motion for port listed victims in order. alleged alphabetical The affidavit in his in three basic summary sets forth the charges first two categories, defendant’s The State combines categories. an in each accounting that the existence or nonexistence of arguing cause. is of or no relevance in discussing probable case little insuror, “(1) was made compensation A settlement account, some time check was into bank settlement deposited thereafter, received victim days years, alleged from ranging received no account- of the settlement but a check for their portion set- of the total Mr. Bretz as to the amount disposition from ing *18 (This to the following alleged fact situation is applicable tlement. — Hill, Aker, Baran, DuBois, Stroop Early, Springer, victims Weisgerber.) insuror,
“(2) was made by compensation A settlement account, some time was into bank check deposited settlement thereafter, received a few victim alleged ranging up years, an accounting the settlement along portion check for their the total settlement. the amount and disposition Bretz from — victims (This to the following alleged is applicable fact situation McMaster, Hall, Gilbert, Curtiss, Gaines, La Valley, Guszregan, Wesland.) Under and Swims Pohjola, insuror, the “(3) was made compensation A settlement and the alleged a bank account into check deposited settlement and, victim was never contracted Mr. Bretz to the date of the af- fidavit, (This had not received any of the portion settlement. fact — situation is to the applicable following victims alleged Barry, Fischer, Tannehill.)” Morris and Gardipee, 29, 1975,
In his motion filed pretrial July defendant moved to (1) quash Information on the grounds there was an abuse cause set forth in the probable affidavit to justify In- filing formation; (2) no crime or crimes were stated in the facts al- leged the affidavit. Defendant raised again this issue on 29, 1975, December in another motion. pretrial argues the fact in the lacking affidavit is the showing intent requisite to prove He then larceny. argues that the District Court erred in the State allowing to file the Informa- tion where the supporting affidavit failed to establish probable cause.
The basic crime with which defendant was charged and upon he which was tried was bailee as larceny by set forth in section 94-2701, R.C.M.1947: who,
“Every person with the intent to or deprive defraud the true owner of his thereof, property, or of the use and benefit or to ap- taker, propriate the same to the use of the or of other any person —either “2. control, in his Having bailee, possession, or custody as a servant, clerk, trustee, attorney, agent, or officer of any person, association, officer, or or corporation, as public or aas person authorized by agreement hold, or by competent authority to or take control, such possession, or custody, any money, property, debt, contract, evidence of or nature, article of value of any in action or thing use, possession, the same appropriates to his own owner, or that of other person other than the true or person en- thereof, titled to the benefit steals such and is property guilty larceny.” 95-1301, R.C.M.1947, MCA,
Section now section 46-11-201 provides pertinent part:
276
“(a) the district court may directly The county attorney apply a named defendant. to file an information permission against for as affidavit such evidence supported by The must application If that there is cause to require. probable it judge may appears been the defendant the believe that an offense has committed by information, shall leave file otherwise grant ap- judge be denied.” shall plication is the filing
The cause for an information rationale probable as cause arrest. ex rel. v. same for State Pinsoneault probable 240, 269, 233, (1965), P.2d 273. 145 Mont. 400 District Court facts, actual or apparent, “Probable cause is the knowledge a he reasonable man in the belief that has strong enough justify in the com- for manner grounds lawful prosecuting Mont, Pinsoneault, 272. at 400 P.2d at of.” 145 plained to the existence of respect probable determination with Any an be made on case-by- Information must cause the filing case. In addi- basis of the peculiarities particular case viewing tion, as cause” it is necessari- concept the term implies, “probable facts in the Informa- with alleged concerned ly probabilities. of offenses are sufficient to defendant with number charging tion cause. so we im- finding, emphasize In establish probable innocent facts resulted from alleged bookkeep- that the probability as a Viewing mistakes. the Information errors or clerical ing whole, concluding probable did not err in the District Court the Information. directly filing existed for cause — ESTOPPEL COLLATERAL DOUBLE JEOPARDY a defendant State v. Cline also 724, referred to as the 555 P.2d parties Mont. claims that that case could should case. Defendant Wampole as “same case instant being part been joined have R.C.M.1947, l(l)(a)(ii), in section 95-171 defined transaction” 46-11-501 MCA: section now
“(l)(a) includes conduct consisting ‘same transaction’ The term of:
“(ii) a series acts or omissions which a by are motivated com- purpose mon or and which result in the plan repeated commission same the the same or or or the person persons prop- offense affect ” added.) erty (Emphasis thereof. the Defendant State used the case argues merely Wampole as a run” “dry to test their success. Defendant then prosecution (1) that the effect of was to argues practical multiple prosecutions (2) contribute to his eventual indigency; press coverage; expand and, (3) provide the practice prosecution.
We note that the Information filed in County Cascade named dif- ferent defendants than the Information filed in Lewis and Clark addition, In Lewis and County. the Clark County Information filed subsequent to that filed Cascade County. 436, 443,
Both cite parties Ashe v. Swenson 397 U.S. 1189, 1194, 469, 475, S.Ct. 25 L.Ed.2d for the definition of “col- lateral estoppel”:
“It means that when an issue simply of ultimate has once fact been a determined valid and final that issue judgment, cannot again litigated between the same any future lawsuit.” parties added.) (Emphasis
The instant case no issue involves of ultimate fact which was area, litigated. twice If valid any objection existed in this it would have been proper to make the objection of the sec- upon filing ond Information in and Lewis Clark County. OR’S INDEPENDENT KNO WLEDGE
JUR Clary Thomas was Great Falls attorney who had
Juror asked been to act as a prosecutor to disbarment special bring pro man under a ceedings against another Workmen’s Compensation indictment. In used he had defendant’s drafting pleadings, disbarment as model. had Clary stated voir dire that during Juror he had no defendant faced. knowledge particular counts But Gilbert, defendant’s at disbarment dealt with the facts of the length and Barry, Guszregan, Hall Morris counts of criminal case. case, of this argues under circumstances Clary’s requires reversal of the knowledge conviction. Clary judge
At of the trial met the conclusion Juror he Defendant’s at- and told them what knew. counsel in chambers were at that time evén there three torney though made no objection defense failed meet its available. The jurors respon- alternate failure to properly object thereby to the court its sibility defects that any alleged an opportunity remedy court give alternate have existed with one Clary may replacing Juror R.C.M.1947, 95-2404(b), now section 46-20-104 Section jurors. MCA, provides:
“(b) review may from the court judgment, Upon appeal decision, in- order or decision to which objected verdict or merits, (Emphasis affects necessarily judgment.” volves the added.)
CRUEL AND UNUSUALPUNISHMENT of counts in this case was convicted eighteen maximum term of sixteen. The court the imposed and sentenced on and the sixteen divided the for each of convictions years fourteen each. The of four convictions into four groups convictions concurrently, served but each were to be sentences within group consecutively were ordered to run four of convictions the groups term. in 56 year prison resulting sentence, the District Court stated:
In imposing “Now, this cannot the of the sentence that Court imposes length that has who has not heard the evidence be someone by understood Now, has not it is the defendant in this case. true presented been deceit, crime, of is but his method operation committed violent the and the poor, knowing his weak upon playing praying Court, condition, this in view of their is more reprehensible, of the cases. of could review some than crimes violence. I many others, out, of which are and a number case stands Hard.y The to the that an admitted attorney, It is ubbelievable unbelievable. that law, activities Mr. would in type engage practice it, the cases to dramatize because don’t want in. I engaged Bretz themselves, to the Review Board and I refer Sentence for speak some, Now, or at least in the eyes many, facts of those cases. He, has been profession branded legal Bretz. stigmatized by course, disbarred, has been no can but I’m longer practice, taking Now, into also in of sentence. account the imposition during trial, Bretz, media, the news made certain Mr. through public statements that an demonstrate unbelievable and lack of arrogance conscience on part. his Now one he referred to is a thing reversal case the Federal Court. Wampole by That reversal Appeals ap- also, item, his that parently clears conscience. He in same news critized the State for wasting in of these money prosecution [sic] , cases, Workmen’s Compensation man one has saying only sixty all that has been spent eight days prison done. I take this note, into I will correct that imbalance. also perhaps He states that he has grounds for and that many appeal, there will ultimately reversal, abe as there was case. be Wampole may This so. clear, His conscience be may if so But the harsh reali- happens. of his to the ty greed who have people been victimized will never be erased reversal.” by any
Defendant was sentenced to one-fourth of the maximum sentence allowed law for the offenses of he which convicted. rule that “a
general sentence within the maximum authorized by statute is not cruel and unusual . . .” v. State Karathanos 461, 468, 158 Mont. 493 P.2d 330. the number Considering convicted, of counts of which defendant was the unbelievable ar- and the lack of rogance of remorse any showing defendant and the sentence being of that allowed percent only law and con- case, all the sidering circumstances of the the discretion of the trial cannot called judge into question.
CONDITIONING SUSPENSION ON RESTITUTION
The District the Court included conditions the following judg- of ment order commitment: Ordered,
“It is Further and Decreed that the last 30 Adjudged of the 56 years sentence herein be year the imposed suspended upon following conditions.
“1. That the defendant into court or district on before pay December an amount sufficient to all of pay victims the of the by the full amount settlement awarded offenses for Aker, and Eugene Dennis C. Gaines including Stanley IAB/WCD J. R. Hall. shall no deduction for attorney As a further there
“2. penalty claimed the defendant. fees costs after for allowance “3. At this time Court advised $42,259.68 defendant, total sum re- made payments have been defrauded. to the alleged mains claimants owing make the time the defendant not full within payment “4. Should im- sentences hereinabove defendant will serve the prescribed, posed.” and amount conditions are improper these argues First, the District two reasons. punishment
to cruel and unusual on upon three counts the amount of settlement included Court Second, to an ex- he this amounted he acquitted. argues which was cruel unusual punish- and was unconstitutionally cessive fine defendant’s status. indigent ment considering MCA, 95-2206, 1947, now section 46-18-201 Section R.C.M. part: in pertinent provides
“(1) upon has been found an offense person guilty Whenever the court may: a verdict or a guilty, plea “(b) to the maximum sentence sentence up execution of suspend im- sentencing may judge offense. allowed for particular during period reasonable restrictions on defendant any pose include: may reasonable restrictions sentence. Such suspended restitution; “(iv) with or institution
“(d) defendant to correctional commit the offense; law for the without fine provided (l)(c), (l)(b), “(e) combination subsections impose (l)(d).”
281 When the is entered on the verdict of judgment guilty and the sentence is the criminal at an imposed, end. proceeding etc., is the Any mitigation by suspension, beginning proba tion and rehabilitation and the defendant at this of process, stage is not of full and proceeding not entitled possessed citizenship to all of the constitutional free man. We have met this rights in recent cases and have held as have problem other jurisdictions Court, (1969), and the United see State State v. 93 Supreme May 126; 343, 40, Idaho 461 P.2d Fuller v. 94 Oregon U.S. 2116, restitution, S.Ct. 40 L.Ed.2d con particularly convictions, nection with is a for theft-type condition proper A suspension consideration of the entire record in this probation. case demonstrates that the trial has been more than judge fair his defendant an granting for is an act of opportunity suspension he was not mercy to extend to this required defendant.
SENTENCING HEARING
After verdict had been returned on jury December 1976, the court stated:
“Now, case, in view of the circumstances peculiar Court deems itself well advised to enough impose without penalty for calling pre-sentence investigation I am report. going 7th, set next December Tuesday, as the time for at sentencing, the hour of 11:00 o’clock A.M.
“Now, at that time Counsel for the Defense mat- may present any ters in mitigation if punishment wish it at that they time.” 3, 1976,
On December for the State sent a letter prosecutors Martin Judge forth their setting views with respect defendant’s sentencing. attached a of a letter They copy from the case, of one of daughter the victims in the which had been sent to a illness, in California in judge another matter. Because defend- time, ant’s until sentencing December 13. delayed At that, defense counsel stated in his in the of a opinion, absence “the presentence investigation, Court the proper necessary lack[ed] information to in this matter.” The pass judgment State answered that, other the court had had access to a among things, copy
another in another trial presentence investigation prepared that it at the found defendant. The court said had looked report, for the record the reasons that it was not then detailed helpful, it was about to impose. sentence *24 First, to two of this he argues Defendant objects parts procedure. a in- should have ordered presentence District Court an adequate and that the document was not vestigation prior v. Orsborn 170 Mont. substitute. State Citing that he should have been advised argues P.2d from the trial and given contents of the presentence report prior have contained. to rebut misinformation it might any opportunity Next, have for cross- he that the should produced State argues who has written the letter examination the victim’s daughter this, defend- to the court. Failure to do says presented prosecutors ant, a denial of due process. 95-2203, R.C.M.1947, now
Section section 46-18-111 MCA, in pertinent part: provides commit- result in a crime which may convicted of
“No defendant be sentenced (1) shall or more in state prison, for one year ment by of investigation a written report of before or otherwise disposed court, to and considered a officer presented probation (Emphasis unnecessary.” such court deems report unless the added.) which a means by statute is to provide of this
The obvious import the cir- will fit not only which can fashion punishment a court characteristics individual but also the of the crime cumstances case, of its because in the instant convicted. The court the person in a position his crimes was with defendant familiarity investigation. having presentence sentence without and had investigation of the prior presentence had seen a copy that, the he did not. Beyond but its contents dispute opportunity reliance and the court’s not been helpful that it had court indicated detailed doubtful. The District Court extremely on it in isway on defendant imposed for the sentence its reasons at some length and he had the to those reasons at that time opportunity respond factors he could find. any mitigating
The same is true of the letter sent to Martin Judge with its attachment. Defendant was prosecutors furnished with of the letters and with the copy effect mitigate any opportunity he felt it have. The might letter from the of one of the vic daughter tims was not mentioned as a factor in his judge contributing and the count to sentencing particular decision which it related did not result in an enhanced punishment.
ADMISSION OF EXHIBITS
The State introduced the files of the Industrial Accident Board Worker’s Division as Compensation Exhibit No. 1 under the Act, Business Records as Evidence sections 93-801-1 through 93-801-6, R.C.M.1947. Each file consisted of the follow primarily documents: ing draft;
1. Settlement settlement; 2. Petition for compromise *25 memorandum; 3. Carden settlement defendant;
4. of Appointment in Fact submitted Attorney 5. Medical reports; settlement;
6. Affidavit in sum support lump defendant; 7. between the Correspondence IAB 8. Order settlement. approving 93-801-2, R.C.M.1947, act,
Section “A record of an provides: event, shall, relevant, condition or in so far as be competent evidence if the custodian or other qualified witness testifies to its and mode of its identity and if it preparation, was made in the business, act, regular course of at or near the time of the condition event, if, court, in the opinion the sources of informa- tion, method and time of were such as to preparation admis- justify sion.”
Defendant that argues State was required produce source, mode, evidence of the and time of of the IAB preparation Pillen, fact, who was Albert G. testimony file exhibits. In of most of at the time for the State Insurance Fund claims manager Defendant, foundation. question, provided the events in foundation that could not lay proper claims Pillen though,, file. documents in the he had not examined the individual because and that a qualified was a witness qualified We find that Pillen in this case need circumstances like those presented witness under Furthermore, again in a file. examined document every not have of the evidence failed to demonstrate defendant has is not trustworthy. presented evidence of next addresses the admission into
Defendant three secretaries. of defendant’s certain handwriting examples titles, driver’s license applica included abstracts vehicle These records, tions, cards. Defend and voter registration public notary there was these exhibits because ant to the introduction of objected authentic. on the documents were not that the signatures testimony was for com were introduced signatures for which purpose has never with other questioned signatures. parison were properly are false. The signatures alleged signatures to the Exception evidence under the Public Records admitted into 93-901-5, Rule, 1947. R.C.M. through sections 93-901-1 Hearsay for or county agency an official state Each of the records is kept by were The fact that a number signatures the benefit of the public. to insure their authenticity. introduced helped EVIDENCE OF PREPARING FALSE OF ELEMENTS PROOF two counts of failed to the State prove Defendant argues'that that defendant’s VII alleged false evidence. Count preparing settlements, sum compromise lump preparation petitions case after Barry in the Donald Barry to the submitted IAB/WCD 94-1703, LI alleged Count section R.C.M.1947. had died violated Tannehill, also who was to Earl with respect similar circumstances *26 the follow- failed to prove contends that the State dead. material allegations: ing ‘as evidence.’ intended the documents were
“A. That were of the intended “B. That the documents produced type the criminal statute. be covered by trial, or the documents were proceeding
“C. That produced authorized law. inquiry by the documents were in Cascade County,
“D. That prepared venue of the trial.” R.C.M.1947, 94-1703, as follows: provides
Section book, false or antedated “Every person guilty preparing any record, matter or thing, instrument in or other writing, paper, it to for fraudulent or intent to or allow be produce produced any true, trial, deceitful as or genuine upon any proceeding, purpose, whatever, law, of a authorized inquiry guilty felony.” The elements of the offense of false evidence preparing (1) which were case are required instant proved (2) of a preparation false with intent to report; it for produce true; (3) fraudulent or deceitful purpose, upon any inquiry Here, authorized law. live petitions claimant presupposed since the right ceases at death. compensation Intent is factual for the question the fraudulent jury, to obtain purpose being money he was not entitled knowing to it. The awere petitions statutory to the exercise of the prerequisite board’s discretion in awarding 92-715, sum or lump compromise settlements. See section R.C.M.1947, now section 39-71-741 MCA. venue,
With
respect
we
recognize
venue must be
in a
proven
criminal case
a reasonable
beyond
doubt. State v.
case,
Williams
122 Mont.
In the amended with the exception Barry counts, Tannehill defendant was with alternative charged counts *27 286 1947, 94-2701(1), Device, R.C.M. section Trick Larceny by 94-2701(2), Bailee, The R.C.M.1947. State section
and Larceny by and dismissed charges to trial on the Bailee Larceny by chose to go Trick Device. counts of Larceny by the alternate 1947, 94-2701(2), part: in pertinent provides R.C.M. Section who, to with the intent deprive “Larceny Every person defined. of the use and benefit or the true owner his property, or defraud taker, or of thereof, any to the use of the to the same or appropriate . . . other person bailee, control, aas or his custody, Having possession,
“2. trustee, clerk, . . . servant, officer of any person or agent, attorney, authority or competent agreement authorized by or as person control, hold, any money, custody, or take such possession, to use, or that of any to his own the same . . appropriates property owner, to the entitled or person other than the true other person thereof, of larceny.” is guilty steals such property benefit elements of three that the failed prove State argues First, failed to prove that the he State argues charged. the crime Second, that the he argues an “attorney.” that defendant was to permanent- element of “intent the requisite negated proof State’s that the of- he State argues funds. Finally, the owner of ly deprive” under which of authority the element which negated fered proof the funds. holding was defendant in review of this Court that the function we note
Initially,
verdict is supported
if the
to determine
verdict is
ing
jury
293,
(1974),
Mont.
v.
evidence. State
Pepperling
substantial
“. this court is not-a trier of fact... presumption . . trial, to that at the must have been instructed jury of innocence Then, effect, if after the rule changes. but on conviction appeal evidence to support judgment, record shows substantial favor of such State v. Stoddard judgment.” is in presumption 402, 408, (1966), 831. 147 Mont. 412 P.2d 86. also v. Cor 144 Mont. 396 P.2d See State record in case demonstrates defendant amply intended his own clients of their permanently deprive injured at money. Exhibits trial showed low in bank ac presented deposits counts maintained which into the settlement checks case, from clients were each it demonstrated deposited. In that there was at least one could in time when defendant not point have distributed the client’s share of the possibly money client. case, 94-2701(2) *28 applied
As in this section charges requires to the State that defendant prove took of the funds either possession as an or a attorney as authorized person by agreement compe- count, tent With to authority. respect each need prove State one other; or the it need not prove both. here, each
In case defendant received settlement presented because been money he had retained as an he attorney; represented as an himself dealt with the attorney; IAB the client’s attorney; letters, wrote received filed correspondence, documents with the IAB, and received his client’s all as an He cannot money, attorney. claim now that he was not an after attorney, with jury, presented evidence, this found he was.
The essence of defendant’s next argument is that the State at- to that defendant tempted prove sought out his clients with the in- tent to steal from is ultimately them. This intent not consis- prior tent the intent element in the crime of present Larceny by where, Bailee that intent to steal argues, arises after the in time when the embezzler point control of the funds. gains
Here, a fiduciary was created when defendant relationship on acted behalf of his clients as their Defendant is es- attorney. case, of under the facts topped, from a as defense that asserting he harbored a felonious intent to the creation of the prior fiduciary Gould State v. 329 Mo. relationship. 46 S.W.2d 886. Furthermore, the element of intent and the time of formation its for which question jury, question was resolved against Therefore, defendant. we find that there is substantial evidence in determination that defendant was jury’s the record support of the of Larceny crime Bailee. guilty OVERZEALOUS PROSECUTION of of acts that the cumulative effect a series
Defendant argues a fair him his constitutional denied basic right prosecution He lists six acts: trial. specific counts;
1. of Filing multiple in Participation publicity; 2. pretrial counsel; of of 3. Resistance payment appointed without notice or refiling charges opportuni- 4. Dismissal defendant; afforded being ty hearing of defend- from the defense violation 5. Demand document and, silence; ant’s Fifth Amendment right of witnesses. 6. names withholding State’s factual cir- have the underlying We addressed previously three made defendant. Number of the first points cumstances 30, 1974, Information. Defendant to the dismissal July refers well that if been allowed to this case appear, might he “had states shorter, on a 29-count Information been prosecuted original have with a resulting speedup proceedings, simplification minimizing publicity.” issues *29 to an on 2346 Number 5 refers exchange appearing pages was of the witness questioning Prosecutor Gilbert transcript. 2347 about he had from defense counsel Connor. a visit received Earley him letter at that time. asked if Connor had shown Earley Gilbert if a let- then asked him affirmatively answered Gilbert Earley the was not and ter he was was same letter. said it Earley holding then to his files for the letter. After a Gilbert asked Connor check two for brief the the bench some exchange, attorneys approached then for a discussion off the record. Defense counsel moved mistrial of the due to this it violative Amendment request, citing Fifth to that a defendant be furnish cannot guarantee compelled against evidence himself. to to the fact add
Number refers that the State was permitted list certain witnesses to its of witnesses voir dire. Three of following these witnesses were called the stand ultimately in the course of the trial. first, this last issue we note that
Addressing one of the three who witnesses could have defendant’s case possibly prejudiced this, a witness defendant had listed as his own. Aside from at District Court stated time the witnesses were listed he would continuance on grant request defendant’s the ex prior of amination these witnesses if defense counsel needed extra time the witnesses and interview their develop questions. This oppor cured tunity any which have prejudice otherwise might developed. of violation defendant’s'
Concerning alleged Fifth Amendment we note that rights, objection no was made on Fifth Moreover, at the time of incident. the re Amendment grounds and not of the was made counsel defendant. Reviewing quest we cannot discern how transcript defendant could been have prej udiced exchange. is not from Certainly it apparent addition, record. In the record filed with this Court not does con an tain objection defendant with respect the dismissal of the first Information and the of the second. filing
Having discussed the first three previously matters with respect issues, to other left we are the task the overall im- assessing of these matters considered pact We find that the together. issues here, error, if were to presented not they considered are to be quality sense prejudicial.
DENIAL OF OPPORTUNITY TO PRESENT DEFENSE
Defendant contends alleged certain errors and erroneous attendant to case had ruling the effect his constitu- violating tional “to right have compulsory witnesses in process obtaining his favor as guaranteed Sixth Amendment to the United II, Constitution Article States 24 of the Montana Section Con- stitution of 1972.” He breaks this into assignment error five parts. counsel;
1. Failure to pay appointed basis; 2. Denial and without quashing subpoenas proper *30 of to submitted accountings Refusal allow in evidence 3. victim; to an alleged to work performed; The refusal to allow testimony 4. the and to out-of-state witnesses with court State clear Having 5. obtaining subpoenas. before of er- discussed defendant’s first assignment
We have previously no of to his defense. this and found showing prejudice ror in regard of mentioned refer The denial quashing subpoenas a to obtain first defendant’s failure two incidents. The involved Morris, the wife tecum Mrs. Robert commanding duces subpoena victim, of the Internal couple’s of an to bring copies alleged a Defendant himself stated returns for number of years. Revenue the records: the for which he wished subpoena purpose defendant, and the be a witness in this case for “Mrs. Morris will Honor, it to become is going the of this Your subpoena, purpose the this case addresses concerning employers relevant in the the best this witness for State. And earnings particular and so and addresses of the evidence probably earnings, employer and Mrs. Morris records. If Mr. will the Internal Revenue forth is there and Mrs. this information return of course have filed joint is on issue. This And it most relevant can it. Morris provide count.” the Morris parts one of main on the to the objected subpoena State granting The best and no need was shown that it was not the evidence grounds Court, stated The District in denying subpoena, records. it, and basis for then the that establish a foundation you “[w]hen foundation. require at It is not error a proper court will look it.” concerning subpoena by similar incident occurred A Bureau the Credit Bureau. Credit defense a representative that motion arguing moved State quash supported to be After foundation laid for evidence gained. there no matter be asked defense counsel Barron argument, some was laid. The defense ap- foundation until sufficient postponed not this matter acquiescence. following did pursue parently no comment. requires specification This *31 to defendant’s next evidence Turning argument regarding Warner, it that the an accountings, testimony appears Greg in a who victim Hortick lawsuit attorney represented against defendant, trial was excluded court. Defendant’s offer of by to the that would was effect Mr. Warner’s show proof testimony a that defendant was claim of holding under money openly However, this faith claim to the right. settlement purported good was not made until after nearly the settlement had been ob year tained and after a demand the victim his only by through attorney been had made Hortick’s contacted following being attorney such, office thus aware of settlement. As general’s becoming this was not relevant to his evidence defense faith. good
Next, defendant that claims he offered to that prove victim difficulties, Hortick had been involved criminal that he had re him, tained defendant to defend that defendant did some work in this matter and was entitled to a fee. This fee was then claimed as an offset the Hortick against settlement. defendant But attempted to introduce testimony former through at deputy county torney. Only Hortick’s or defendant’s could have testimony Hortick, that established defendant had been hired that a fee reached, agreement had been that he performed certain amount work, that, fact, that he was therefore entitled to a fee and he retained a of Hortick’s Workers’ portion Compensation settlement Hortick did not that he purpose. had retained de testify fendant in matter and the defense did not examine him on that Defendant chose not to we are point. testify, from precluded However, conclusions from drawing that fact. in the any absence of the foundational was proper the evidence testimony, properly excluded. before
Finally, obtaining for out-of-state subpoenas witnesses, was to defense demonstrate the required materiality of witness’ The was allowed to testimony. State dur present such demonstrations. Defendant defense ing his was argues This of a revealed issue arises out list of thereby prejudiced. witnesses names approximately out-of-state sub- containing The list from persons mitted two weeks before trial. included just Alaska, Nevada, Illinois, and West Germany. purpose was to these were witnesses. determine whether inquiry legitimate to defendant has made no prejudice respect Again, showing of these Without such a show- to obtain witnesses. inability his there is error. no ing, REGARDING FEES
TESTIMONY ATTORNEY’S at issues reasonable testimony regarding These relate first which is testimony fees. The torney’s objected Pillen, Chief of the Insurance Fund. came from Bud Bureau State charged testified that in his observation regularly attorneys He hear unless case went “twenty-five percent [of settlements] one-third.” If it went the Supreme then it usually ing, *32 Keefer, Court, Next, at Neil Montana forty possibly percent. that his in testified Compensation, Workers’ torney specializing clients was 25 percent. fee to Workers’ Compensation normal ad- that should not have been this argues testimony to with the issue before the jury, because it had do nothing mitted the there the client. At time whether defendant embezzled from result, fees. As a no limit on Workers’ statutory Compensation was effect was to “inflame the claims this testimony’s only defendant and confuse the true issues.” passions jury Thereafter, the testimony to present defendant attempted Walsh, His for County. Cascade County Attorney Deputy James of Donald Hortick to the alleged representation related testimony matter discussed. in the criminal previously and about the Keefer witnesses Pillen testimony to the transactions in fees was relevant of attorney reasonableness the client and Bretz. was made between no fee agreement which to Stanley Gaines file was limited testimony primarily Keefer’s that, count. acquitted Beyond defendant was ultimately making in its is to assist the testimony jury of expert the purpose to determination; decide for does not limit the jury’s capacity it that an agree- at the time provided the statute in effect Since itself. by some standard to fees could be implied, attorney’s ment which the could determine what such an jury agreement implied this, be was essential. In addition to even where there an might was fee, did not agreed defendant often adhere though agreement an for its gave jury basis determination. In independent case, for Gilbert for his fee. example, kept percent We have addressed the foundational already deficiencies Walsh’s no find error. testimony
TESTIMONY BY GERLACH CONCERNING OTHER CRIMES
Dr. William Gerlach was called the State refute cer tain medical that reports appeared in IAB files. Dr. Gerlach testified that he would dictate medical on reports various patients and then would have them typed defendant’s office. would They be returned to him for his review or Dr. on signature. Gerlach went that the testify medical on reports Ray and Earl Tanne Pohjola hill were not or prepared signed him.
Defendant argues that this testimony was it irrelevant an amounted to accusation defendant had committed the crimes of forgery false obtaining money by crimes pretenses, which he not with in the charged Pohjola Tannehill counts. Furthermore, defendant was Tannehill charged matter with a false preparing petition settlement and the compromise jury have may confused the issues and the proof. 381, 394,
In State v. 127 Mont. Phillips 264 P.2d 1016, we stated: to, with,
“. . . transactions which are so related and connected to be are charged as otherwise admissible not inad- forgery crime, missible because tend dissimilar they prove wholly par- *33 where constitute ticularly they of connected continuous part transaction on the of accused.” part [the]
The evidence in this case tends to show that the Gerlach medical had been to the reports fraudulently submitted IAB constitute of a connected or continuous transaction on the part de- part fendant. The to demonstrate the in manner which testimony goes defendant the set which he could commit the crimes up system by with which he was eventually charged. BY
IMPEACHMENT OF WITNESS McMASTER STATE the and once McMaster was State’s second witness George to he on the stand the court allowed him. impeach was State R.C.M.1947, 93-1901-8, Section provides: not to his impeach “The witness is allowed party producing character, credit of bad but he contradict him by evidence may evidence, other also show that he has made at other times may in statements inconsistent with his as present testimony, provided section 93-1901-12.” it made no and because
Because State showing surprise that had not been was aware McMaster’s was he long position victim, his that the court erred in argues permitting testimony. he
Witness testified when first visited defendant’s McMaster office, would the settlement 50-50. This the men agreed they split the State believed he would was a the State because surprise no McMaster was a hostile testify there had been fee agreement. $100,000 as a as because he was State suing witness well been as a in the Information filed result of named victim having aware of the latter hostility defendant. State against only count. In did not want dismiss the McMaster McMaster yet 574, 585, 611, 615, (1898), P. v. Bloor 20 Mont. State Court stated: under the that a witness is brought
“It not infrequently happens the trial and upon completely of an adverse party, influence in instances arise When such him. calling deceives party cases, cross- right weight authority great criminal rights for the prosecution as one necessary examine arises of an witness.” unwilling or evasion the state against perjury 275, 285, 97 P.2d v. 109 Mont. In State Traufer 340-341, we stated: of his own testimony is bound to accept “. A not . . party there correct, nature where cases of this particularly witness made statement...” of a previously the effect motive in changing the State impeach not err allowing did The District Court *34 295 of McMaster under the circumstances in testimony presented this case. This seems particularly compelling light McMaster’s that it was defendant’s idea that he testimony make claim the State. against
LARRY SANFORD TESTIMONY (Count 47),
In the Swims Under Count an issue arose as to whether defendant had prosecuted suit for products liability Mr. Swims Under Sanford, Heston against Corporation. staff at Larry Heston, torney testified that corporation was to im policy mediately inform its carrier letter of liability claims against the corporation. Then he testified no such letter in their appeared file. objects this because testimony Sanford was not
employed Heston when the suit was allegedly and had brought been told that only that was at policy Heston at that time as
well. 93-401-2, R.C.M.1947,
Section provides: “A witness can to those testify facts which he knows of his only is, own that knowledge; which are derived from his own percep- tions, in those few except cases in express which his or in- opinions ferences, others, or the declarations of are admissible.”
Any problem with Sanford’s is a testimony problem weight. Defendant had the opportunity cross-examine with to the respect completeness Heston records of Corporation the date in ques- tion. He was further entitled to to the that argue jury testimony could not be conclusive. YINSTR NOTIONS
JUR Counts 6 and the amended Information that de- alleged fendant obtained from the money IAB false pretenses Barry Tannehill cases. Counts 7 and 51 of the amended Infor- mation alleged defendant false prepared evidence in those cases. In all four counts the items to be false were alleged Petitions for Compromise Settlement and Petitions filed by defendant. Though jury instructed adequately to the respect crimes charged, objects
nature and elements to the that the items alleged because no instruction explained jury to be false were the petitions. statement, we defense
First note his during opening *35 to the that the court read the document requested charging counsel to charges and the court advised him that he read those might jury which Defense counsel Barron read the charges the himself. jury this, to to in this issue at that time. In addition pros are referred Gilbert, summation, false ecutor in his discussed the representa to and false evidence referred in the Information. Reviewing tions adequate in this it that the was regard, appears jury his statements the of these charges. of nature and subject ly apprised this, the instructions which were in this area given Beyond instructions, erroneous; felt including were not if defendant further it was incumbent upon more instructions were specific necessary, request No appears him to more instructions. such request specific the in record. of par on to the three object
Defendant to goes giving stated, essence, that in first instruction ticular instructions. The when the restitution is not a defense the crime of bailee larceny words, the of other the taking. intent existed at time the In criminal to with the intent per is at the point taking crime complete a defense when the defendant Restitution is manently only deprive. at the it was taken. intended to return the time This inter property 94-2717, is consistent section R.C.M.1947. pretation in following to the objects giving next Defendant struction: case, was
“When, charged that crime alleged it is as in this date, that the finds if the jury a certain on or about committed that show it committed, that the is necessary proof it not was crime date; that proof sufficient it is on that precise was committed the infor- filing was committed prior that the crime shows mation.” was jury evidence that no presented maintains
Defendant was mean- was filed so instruction when the Information as to To to the as to the time of offense. determining ingless jury instruction, of the this should be jury apprised utilize properly However, date of the of the document. charging filing the failure of this absence of any showing prejudice, apprisal case, not there is no that reversible error. In showing any proof had been which tended to offense presented prove committed after the Information was filed. next
The instruction defendant reads as objected follows:
“If the evidence shows that defendant made similar false owner, other than the such representations pretenses persons evidence, if believed is sufficient corroboration.” by you, is no there evidence false argues representa- tions to others as to the false counts and the instructions pretense should not have been that certain evidence given. argues State was to be considered as such and it is within the province case, to have jury considered it. In either it would not be prej- *36 udicial error which to a reversal. upon gain
Defendant next of the trial court’s complains refusal instruct that in order to convict defendant of jury embezzlement or bailee, must larceny by find the intent to steal was not they at he the time took of the funds. This issue has present possession been discussed and we no error. find The crucial ele- previously ment here is that the defendant stole the virtue of his money by with his client. relationship
Defendant next to certain instructions refused and objects being others had a lien defendant’s he given respect position the settlement funds of the victims for services rendered. upon legal review of the instruction and the instructions refused in- Our given no dicates error. defendant that it was for the court to
Finally argues improper an instruction to the for which give jury pertaining purposes could consider evidence of other crimes not This jury charged. defendant, State, instruction not the in that it narrowly benefits such evidence. restricts consideration which be may given reveals no prejudicial record review of this complex
An intense could be founded. of the trial court a reversal error which upon is affirmed. of the District Court and sentence The judgment HASWELL, and RALPH DALY MR. CHIEF JUSTICE JUSTICE Shea, concur. BOYD, of Mr. sitting place District Judge Justice J. concurring: specially MR. SHEEHY JUSTICE I undoubtedly guilty. the result. The defendant concur only I that con- actions of State condone the ignoble am unable to at- defendant’s and the refusal to pay in trial tributed to the delay not an I attorney, the court. Were until forced by torneys have dissented. should