text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARYL SCOTT, Defendant and Appellant.
    No. 92-052.
    Submitted February 2, 1993.
    Decided April 1, 1993.
    50 St.Rep. 353.
    257 Mont. 454.
    850 P.2d 286.

      For Defendant and Appellant: Leo J. Gallagher, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and John T. Flynn, Broadwater County Attorney, Townsend.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Daryl Scott (Scott) appeals his conviction for sexual assault following a jury trial in the District Court for the First Judicial District, Broadwater County. We affirm the conviction.

The issues raised in this appeal are restated as:

1. Did the District Court err in refusing to grant Scott’s motion to dismiss for lack of speedy trial?

2. Was Scott’s right to confrontation denied because the District Court allowed the testimony of the victim to be videotaped and shown at trial without first requiring the State to make a showing of necessity?

3. Did the filming techniques utilized by the video-camera operator prejudice Scott by serving to emphasize the victim’s testimony and inflame the jury’s passion?

4. Did the District Court err in denying Scott’s motion for a continuance prior to videotaping the victim’s testimony?

5. Was certain testimony of the victim’s therapist, regarding the victim’s psychiatric symptoms, improperly admitted by the District Court?

6. Did the District Court err by instructing the jury that the State was not required to state the time and place of the alleged criminal offense with impossible precision?

In July 1990, the victim, J.R., told her grandmother that Scott, the child’s stepfather, had sexually assaulted her sometime in the fall of 1989. The grandmother relayed these allegations to J.R.’s mother. Apparently, the grandmother was not satisfied with the course of action taken by the mother. Several weeks later, the grandmother filed a report of child abuse with the Broadwater County Sheriffs Office. In addition, the grandmother took J.R. to see a social worker who interviewed J.R. about the allegations on September 14 and 17,1990.

At the first interview, J.R. did not specifically tell the social worker that Scott had sexually assaulted her. At the second interview, J.R. relayed that Scott had sexually assaulted her in late September or early October, 1989. Scott was arrested on September 27, 1990.

On October 10, 1990, the State of Montana (State) filed an information against Scott charging him with one count of sexual assault in violation of § 45-5-502(1) and (3), MCA. Scott was released from jail on bond on October 19,1990. A jury trial held on June 10 and 11, 1991, resulted in a verdict of guilty. Scott was sentenced to twenty years in the Montana State Prison, with ten years suspended. In addition, Scott was ordered to complete a sexual offenders program upon his release from prison. It is from this conviction that Scott appeals.

I

Did the District Court err in refusing to grant Scott’s motion to dismiss for lack of speedy trial?

Scott contends the prejudice caused to him by the delay between his arrest and the time of trial violated his constitutional right to a speedy trial. He argues the State failed to provide an excuse reasonable enough to overcome the constitutional presumption that a delay of the length in this case, 256 days, prejudiced him. We agree that a delay of 256 days is sufficient to trigger inquiry as to whether a defendant’s right to a speedy trial has been violated. However, we do not agree the State failed to overcome the presumption that the delay in this case prejudiced Scott.

Under the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution, defendants in all criminal proceedings are guaranteed the right to a speedy trial. State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416, 49 St.Rep. 788, 790. In ascertaining whether the right to a speedy trial has been violated, a sensitive four-part balancing test is analyzed. State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163. The factors to be balanced are: the length of delay; the reasons for the delay; assertion of the right by the defendant; and the prejudice to the defendant. State v. Reynolds (1990), 243 Mont. 1, 4-5, 792 P.2d 1111, 1113.

The length of delay which is “presumptively prejudicial depends on the facts of each individual case.” State v. Dahms (1992), 252 Mont. 1, 12,825 P.2d 1214, 1220, citing State v. Heffernan (1991), 248 Mont. 67, 70, 809 P.2d 566, 568. However, we have held that a delay of over 200 days will usually trigger the full analysis. Dahms, 252 Mont. at 10-14, 825 P.2d at 1220-21. In this case, a delay of 256 days, all of which was attributable to the State, is sufficient to warrant further inquiry.

Once a delay is sufficient in length to trigger a full speedy trial inquiry, a presumption exists that the defendant has been denied a speedy trial. Reynolds, 243 Mont. at 3-5, 792 P.2d at 1113. At this point, “the burden shifts to the state to either offer a reasonable excuse for the delay or demonstrate that the defendant was not prejudiced by the delay.” Reynolds, 243 Mont. at 3-5, 792 P.2d at 1113.

In the case at bar, the State moved twice to continue the trial date. The first motion was made on January 23,1991, and the second on April 4, 1991. Scott acquiesced to these continuances with the understanding that his right to a speedy trial would be preserved. The first continuance was requested because in the opinion of Dr. N.M. Campbell, it would not have been in the best interests of J.R. to be subjected to any extensive and intensive interviewing until she had undergone further psychological evaluation and counseling. The second continuance was requested because the therapist conducting J. R.’s sexual trauma assessment could not make an accurate assessment of J.R.’s ability to testify until May 1,1991.

In addressing the reasons for the delay, Scott contends the State did not offer a reasonable excuse because it delayed obtaining counseling for J.R. While the record reveals that J.R. did not see a therapist until mid-January 1991, it also reveals the reason for the delay was the unavailability of a therapist. Testimony elicited from a defense witness reveals that J.R. was on a waiting list for approximately four and one-half months before a therapist was finally able to work with her.

In Reynolds, we were confronted with a similar set of facts regarding the unavailability of a material witness for the State to testify because of emotional instability. Reynolds, 243 Mont. at 5-6, 792 P.2d at 1114. Like the victim in the instant case, the victim in Reynolds required psychological therapy to enable her to testify without suffering further psychological damage. We held that the State provides a reasonable excuse for the delay when a material witness is unavailable to testify. Reynolds, 243 Mont. at 5-6, 792 P.2d at 1114. “The State is not charged with speedy trial delay when a material witness with a ‘valid reason’ is not available.” State v. Tilly (1987), 227 Mont. 138, 142, 737 P.2d 484, 487. The unavailability of counseling for four and one-half months, and the need to obtain such counseling before J.R. would be able to testify, constitutes a valid excuse.

In addressing the third Reynolds factor, the record reveals that Scott asserted his right to a speedy trial in a May 22,1991 motion to dismiss. Therefore, this prong has been satisfied.

The final factor to be analyzed is the prejudice to the defendant. Where the trial in a criminal proceeding has been delayed, three interests of the defendant may be prejudiced. Tilly, 227 Mont. at 141-43, 737 P.2d at 487. Those interests are: to prevent oppressive pretrial incarceration; to minimize the anxiety of the accused; and to limit the possibility the defense will be impaired. Tilly, 227 Mont. at 141-43, 737 P.2d at 487.

When applied to the facts in this case, we hold Scott’s interests were not prejudiced by the State’s delay in bringing this case to trial. First, on October 19, 1990, approximately three weeks after his arrest, Scott was released from jail after posting bond. The duration of Scott’s pretrial incarceration was not oppressive. Second, Scott does not contend, nor does the record reveal, he suffered undue anxiety or concern. Finally, we do not agree with Scott’s contention that his defense was impaired by the delay.

Scott argues the record is replete with instances where child witnesses could not remember important details thereby impairing his defense. However, the record indicates that those details which the child witnesses were unable to recall actually benefitted the defense. For example, one of the allegations in this case was that Scott assaulted J.R. while she was sitting on his lap steering the car while other children were present in the car. When one of the witnesses was questioned about this, the following testimony was elicited:

Q. Okay. And did [J.R.] or did Daryl let [J.R.] drive back from the trip that you are talking about?
A. I don’t remember.

Furthermore, another witness testified similarly:

Q. Okay. So you remember all of you being in the back seat and [J.R.] being in the front seat? Do you remember [J.R.] ever driving the car?
A. I am not sure.
Q. When you say you are not sure, you just don’t remember or —
A. I don’t remember.

We hold the defense was not impaired by the State’s delay in bringing this case to trial. Furthermore, we hold Scott’s constitutional right to a speedy trial was not violated.

II

Was Scott’s right to confrontation denied because the District Court allowed the testimony of J.R. to be videotaped and shown at trial without first requiring the State to make a showing of necessity?

Both the United States and the Montana Constitutions guarantee a criminal defendant the right to confront the witnesses against him. Amend. VI, U.S.Const.; Art. II, Sec. 24, Mont.Const. Scott alleges his right to confront the key witness against him was violated because: (1) the District Court allowed the victim’s testimony to be videotaped and shown to the jury without a prior finding that there was a compelling reason to do so; and (2) because he and the jury were deprived of the ability to observe the demeanor of the witness in the courtroom.

Sections 46-15-401 and 46-15-402, MCA (1989) (both repealed and recodified as § 46-16-216, MCA), controlled the admissibility and procedural aspects of videotaped testimony in this case.

For any prosecution commenced under 45-5-502(3) ..., the testimony of the victim, at the request of such victim and with the concurrence of the prosecuting attorney, may be recorded by means of videotape for presentation at trial. The testimony so recorded may be presented at trial and shall be received into evidence. The victim need not be physically present in the courtroom when the videotape is admitted into evidence.

Section 46-15-401, MCA (1989). Section 46-15-402, MCA (1989), reads:

(1) The procedural and evidentiary rules of the state of Montana which are applicable to criminal trials within the state of Montana shall apply to the videotape proceedings authorized by this part.
(2) The district court judge, the prosecuting attorney, the victim, the defendant, the defendant’s attorney, and such persons as are deemed necessary by the court to make the recordings authorized under this part shall be allowed to attend the videotape proceedings.

Under the above statutory scheme, a request by a victim of sexual abuse, along with the concurrence of the prosecutor, allows the videotaping of the victim’s testimony for possible introduction at trial. If offered, § 46-15-401, MCA (1989), mandates the videotaped testimony be received into evidence. We note that this requirement is subject to all applicable rules of evidence. Furthermore, § 46-15-402(2), MCA (1989), preserves a defendant’s constitutional right to confrontation by allowing him to be present at the videotaping proceedings. Scott contends this statute is unconstitutional because it does not require the State to make a preliminary showing that the victim is unable to testify before the jury. However, given the facts in the instant case, the precedent relied upon by Scott to support this contention is misplaced.

In Maryland v. Craig (1990), 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, and State v. Davis (1992), 253 Mont. 50, 830 P.2d 1309, 49 St.Rep. 342, the defendants were denied the opportunity to confront the witnesses against them face-to-face during their testimony. In Craig, the child witness, prosecutor, and defense counsel were removed to a separate room, while the jury, judge, and defendant remained in the courtroom. Craig, 497 U.S. at 841-42, 110 S.Ct. at 3161. Thereafter, the child witness was examined and cross-examined while a one-way video monitor recorded and displayed the testimony to those in the courtroom. Craig, 497 U.S. at 841-42, 110 S.Ct. at 3161. In Davis, an opaque screen was placed between the defendant and two child witnesses. Davis, 830 P.2d at 1312, 49 St.Rep. at 343. Again, the defendant could not personally observe the child witnesses who testified against him. Davis, 830 P.2d at 1314, 49 St.Rep. at 345.

Pursuant to Craig, we held in Davis that before a defendant’s right to confront the witnesses against him is limited or abridged, the district court must make case-specific findings that the psychological well-being of the child abuse victim outweighs a defendant’s right to face his accusers. Davis, 830 P.2d at 1314, 49 St.Rep. at 345. However, as mentioned, both of these cases involved denial of the right of face-to-face confrontation between the defendant and the victim/witness. That fact is not present here. We hold the case-specific findings of necessity required under Craig and adopted in Davis are inapplicable to the case at bar. Where the State’s interest is to protect child witnesses from courtroom trauma generally, and not the trauma associated with the presence of the defendant, the child “could be permitted to testify in less intimidating surroundings ....” Craig, 497 U.S. at 855-57, 110 S.Ct. at 3169.

Under the statutory procedure used in this case, Scott was entitled to be present at the videotaping of J.R.’s testimony and confront his accuser. He chose not to do so. Furthermore, the essential elements required by the confrontation clause — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact (although by video recording) — are present here. Craig, 497 U.S. at 844-46, 110 S.Ct. at 3163; Davis, 830 P.2d at 1314, 49 St.Rep. at 345. Accordingly, we hold the procedure utilized in this case pursuant to §§ 46-15-401 and 46-15-402, MCA (1989), did not violate Scott’s constitutional right to confrontation.

III

Did the filming techniques utilized by the video-camera operator prejudice Scott by serving to emphasize the victim’s testimony and inflame the jury’s passions?

On the opening day of trial, Scott objected to the presentation of the videotaped testimony to the jury. The District Court overruled Scott’s objection. On appeal, Scott argues the techniques used by the camera operator created undue sympathy with the jury. By placing undue emphasis on the nature of J.R.’s testimony by “zooming in” when she cried or was otherwise distressed, Scott argues the filming techniques prejudiced him.

Although relevant, and admissible under § 46-15-401, MCA (1989), the videotaped testimony could have been excluded by the District Court if its probative value was substantially outweighed by the danger of unfair prejudice to Scott. Rule 403, M.R.Evid. Additionally, the videotaped testimony could have been excluded if its admission would have violated any other applicable evidentiary rules. Whether the prejudicial effect is outweighed by probative value is a matter within the discretion of the trial court. The admissibility of such evidence is within the discretion of the District Court and will not be disturbed unless there is a manifest abuse of discretion. Zeke’s Distributing v. Brown-Forman Corp. (1989), 239 Mont. 272, 277, 779 P.2d 908, 911.

The District Court reasoned that the videotape did not inform the jurors of something they did not already know (that J.R. was crying). Furthermore the record reveals that the camera operator was seated in approximately the middle of the back row of the jury box. Our own viewing of the tape does not reveal any prejudicial filming techniques. We hold the District Court did not abuse its discretion in allowing the jury to watch the videotape testimony.

Regardless of our holding on this issue, Scott urges this Court to implement uniform procedures applicable to the videotaping of testimony for possible use at trial such as those found in State v. Sheppard (N.J. 1984), 484 A.2d 1330, 1349-50. We decline to do so.

IV

Did the District Court err in denying Scott’s motion for a continuance prior to videotaping the victim’s testimony?

The day the videotaped testimony of J.R. was to be taken, Scott moved for a continuance on the ground that he did not have adequate time to prepare for cross-examination of J.R. The District Court denied this motion. On appeal, Scott asserts the District Court’s decision to deny his motion prejudiced his defense in two ways.

First, Scott contends a statement given by J.R. one week prior to the time scheduled for her testimony varied from her prior statements as to when the assault occurred. Second, Scott argues that on the day of testimony, he was unaware that J.R. was experiencing psychiatric symptoms in which she saw people who were not there, and heard voices, and had discussed the symptoms with her therapist. One week later, Scott became aware of the symptoms through a report prepared by the therapist. Although he was allowed to question the therapist about these symptoms, Scott contends he was denied the opportunity to effectively cross-examine J.R. on this subject. However, upon receiving the therapist’s report, Scott did not move to re-open the cross-examination of J.R.

Whether a continuance should be granted is not a matter of right but, rather, is within the sound discretion of the trial court. Section 46-13-202(3), MCA; State v. McPherson (1989), 236 Mont. 484, 487, 771 P.2d 120, 122. We will not overturn a district court’s decision to deny a motion for a continuance unless the district court abused its discretion. McPherson, 236 Mont. at 486-88, 771 P.2d at 122. An abuse of discretion is present only when the district court’s ruling prejudices the defendant. State v. Kirkland (1979), 184 Mont. 229, 235, 602 P.2d 586, 590.

In this case, Scott has failed to demonstrate that he was prejudiced. As to his inability to cross-examine J.R. about her psychiatric symptoms, Scott advances no argument, nor points to anything in the record, which demonstrates how his lack of awareness of the therapist’s report at the time of videotaping prejudiced him. Likewise, Scott does not elaborate how J.R.’s change in story as to when the assault occurred prejudiced him. To the contrary, the record reveals that Scott was able to effectively cross-examine J.R. on this subject. Upon cross-examination, J.R. reiterated that the assault occurred on a “school day” rather than in the summer months as she had told the defense one week before. Any variance in J.R.’s story would go to her credibility. Evaluation of the credibility of a witness is strictly within the province of the jury. State v. Walters (1991), 247 Mont. 84, 90, 806 P.2d 497, 500.

For this Court to overturn the District Court’s denial of a motion for continuance, an abuse of discretion which prejudices the defendant must be demonstrated. McPherson, 236 Mont. at 486-88, 771 P.2d at 122. Scott has demonstrated no such prejudice in this appeal. The District Court did not err in denying Scott’s motion for a continuance.

V

Was certain testimony of J.R.’s therapist, regarding J.R.’s psychiatric symptoms, improperly allowed by the District Court?

Scott claims the District Court improperly allowed J.R.’s therapist to bolster her testimony. He contends that by allowing the therapist to testify that it is not unusual for victims of sexual abuse to hear voices or see things that are not reality, the District Court allowed the therapist to vouch for the credibility of J.R. Thus, the fact-finding province of the jury was invaded because the testimony served to tell the jury that J.R. had in fact been assaulted by Scott, and he was the cause of her psychiatric symptoms. We disagree.

Scott relies upon State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, to support his proposition that an expert witness cannot comment on the credibility of an alleged victim. Harris, 247 Mont. at 410-12, 808 P.2d at 455. However, Scott fails to note that we have allowed expert testimony regarding the sometimes puzzling and contradictory behavior of children who have been sexually assaulted. Harris, 247 Mont. at 410-412, 808 P.2d at 456. Furthermore, Montana allows “expert witnesses to testify directly about the credibility of a victim who testifies in a child sexual abuse trial” under certain circumstances. State v. Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298. Such testimony is proper when the child victim testifies, the credibility of the child is attacked, and the expert is properly qualified. Scheffelman, 250 Mont. at 341-43, 820 P.2d at 1298. In this case, the first two Scheffelman factors were satisfied. Additionally, Scott did not object to the qualifications of the therapist as an expert, nor does he argue on appeal the District Court erred in treating her as an expert.

Expert testimony relating to the contradictory behavior, and, where appropriate, the credibility of a child victim of sexual abuse, will be allowed to enlighten the jury on a subject with which most people have no common experience and to assist the jurors in assessing the credibility of the victim. State v. Donnelly (1990), 244 Mont. 371, 378, 798 P.2d 89, 93. Where the expert testimony does not impinge upon the jury’s obligation to ultimately decide the credibility of the victim, such testimony is proper if offered “for the purpose of helping the jury to assess the credibility of a child sexual assault victim.” Donnelly, 244 Mont. at 377-79, 798 P.2d at 93, citing State v. Geyman (1986), 224 Mont. 194, 200, 729 P.2d 475, 479.

Throughout the trial Scott attempted to portray J.R. as a child who made up the sexual assault because she was capable of seeing people who were not there and hearing voices which were not real. However, it was Scott who called the therapist during his case-in-chief and opened the door to testimony about these psychiatric symptoms.

In his attempt to impugn J.R., Scott elicited testimony regarding J.R.’s psychiatric symptoms and attempted to relate these psychiatric symptoms as being caused by two other men and possibly by a deceased brother. Scott’s theme was clear, to raise a reasonable doubt in the minds of the jurors as to whether J.R.’s allegations against Scott were true because the child’s psychiatric symptoms could be related to others.

Upon cross-examination, the State merely had the therapist explain that it was not uncommon for child sexual assault victims to suffer psychiatric symptoms which include seeing people and hearing voices which are not real. Furthermore, in the therapist’s opinion, these symptoms were related to Scott, and not to those upon whom the defense was attempting to lay blame. Contrary to Scott’s contention, the testimony of the therapist was not a comment on his guilt.

Given the testimony of the therapist elicited by the defense on direct examination, the jury was entitled to be enlightened as to the root of these psychiatric symptoms on cross-examination. “The right of cross-examination extends not only to all facts stated by the witness in [her] original examination, but to all other facts connected with them, directly or indirectly....” Miles Savings Bank v. Liquin & Swandal (1931), 90 Mont. 513, 521, 4 P.2d 482, 485. The latitude allowed in cross-examination is determined by the district court. State v. Hart (1981), 191 Mont. 375, 383, 625 P.2d 21, 26. We will not disturb the ruling of the district court absent a clear abuse of discretion. Hart, 191 Mont. at 383, 625 P.2d at 26.

We hold the testimony of the therapist elicited by the State on cross-examination did not encroach upon the province of the jury to decide for themselves the credibility of J.R. The District Court did not abuse its discretion in allowing the cross-examination.

VI

Did the District Court err by instructing the jury that the State was not required to state the time and place of the alleged criminal offense with impossible precision?

In his final assignment of error, Scott contends Jury Instruction No. 13 effectively allowed the State to expand the time frame alleged in the information upon which he relied in preparing his defense. Instruction No. 13 reads:

You are instructed that the law does not require that the time and place of an alleged criminal act be stated with impossible precision, it merely requires that they be stated as definitely as possible.

The District Court found that this instruction did not in any way contradict the allegation contained in the information, which read, in part:

[O]n or about late September or early October, 1989, at the County of Broadwater, State of Montana, the above-named Defendant committed the offense of Sexual Assault, a Felony, ....

Scott argues that the State knew three weeks before trial that J.R. had changed her story and was alleging the assault occurred in the summer of 1989 rather than the fall. Therefore, Scott claims, the State was allowed to amend the information in the eleventh hour to charge the offense was committed at a different time. This argument is without merit.

At trial, the evidence presented by the State as to when the assault occurred was consistent with the information. From the record, it is clear that the State in no way attempted to pursue any theory which would have placed the assault outside the time frame contained in the information. To the contrary, it was Scott who presented evidence at trial in an attempt to persuade the jury that the assault could not have occurred during this time frame.

It is within the district court’s prerogative to determine which jury instructions are necessary. Hembd, 254 Mont. at 411, 838 P.2d at 415. “On review, we determine whether [the] instructions, as a whole, fully and fairly present the applicable law of the case.” Hembd, 254 Mont. at 411, 838 P.2d at 415. We hold the District Court did not err in giving this instruction and, as a whole, the jury instructions fully and fairly presented the applicable law of the case.

We determine this case presents no reversible error. The conviction is affirmed.

JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANGIN McNATT, Defendant and Appellant.
    No. 92-006.
    Submitted on Briefs October 8, 1992.
    Decided April 5, 1993.
    50 St.Rep. 365.
    257 Mont. 468.
    849 P.2d 1050.

      For Defendant and Appellant: Julie A. Macek, Great Falls, and William F. Hooks, Appellate Defender’s Office, Helena.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Angin McNatt was convicted of felony sexual assault on August 7, 1991, by the Eighth Judicial District Court, Cascade County. During the trial, defense counsel moved for a mistrial based on a claim of prejudice due to juror misconduct. This motion was denied, as was a similar motion for a new trial made after the jury verdict. McNatt appeals from the denial of these motions. We affirm.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion when it denied McNatt’s motions for mistrial and a new trial after a juror interrupted defense counsel during cross-examination of a witness?

2. Did the District Court’s suspension of the cross-examination of a witness deprive McNatt of his constitutional right to confront and cross-examine that witness?

Defendant was charged with sexually assaulting an eight-year-old girl, F.S., on the evening of November 16,1990, when he was babysitting F.S. and his two stepdaughters, Tamika, age eleven, and Tasha, age nine. During the trial, Tasha testified on direct examination that F.S. described to her that night what McNatt had done.

On cross-examination, defense counsel sought to impeach Tasha on the issue of when F.S. had told Tasha about the sexual assault. At four different times during cross-examination, Tasha was asked if she remembered stating to defense counsel during a pretrial interview that F.S. did not mention the assault until the next day. Tasha related that she remembered the interview, where the interview took place, and that it was important to tell the truth. However, in response to the question of whether she remembered giving a different answer at the interview than during her testimony, she got upset, started to cry, and responded no. The fourth time defense counsel asked this question the State raised an “asked and answered” objection.

The court did not specifically rule on the objection, but observed that this question was “the point where [Tasha] breaks down all the time.” The following exchange then took place:

Q. (By Defense Counsel): Tasha, we can talk about something else, okay? Have you had a chance to talk to [F.S.] about this since it happened?
A. (Witness shakes head in a negative manner)
A JUROR: Your honor, I cannot sit through anymore questioning to this little girl. If I am in contempt of court, I am in contempt, and I will settle with you. I must be excused right now if this questioning is going to continue.
THE COURT: Yes, I think he is right. I think we have put this little girl through enough now. Take her off the stand.

In chambers, defense counsel moved for a mistrial due to this outburst by the juror based on the juror’s inability to remain fair and impartial, and the potential prejudicial effect this incident had on the entire jury panel. In the alternative, defense counsel requested that an alternate juror replace the juror who made the statement. The court denied this motion, finding no prejudice to either side as a result of this incident and noting that, while the statement may have indicated the juror’s sympathy for the witness, it did not mean he was “for or against defendant.”

During McNatt’s presentation of his evidence, counsel called the paralegal who had accompanied her to the pretrial interview with Tasha to testify that there were inconsistencies between Tasha’s prior statements and her testimony on direct examination. The paralegal testified that Tasha had previously stated that F.S. did not tell her anything about the assault until the next day.

The following day McNatt renewed his motion for mistrial due to the juror’s outburst, alleging that he had been denied the right to cross-examine the witness because she had been removed from the stand before the defense had completed its questioning. This motion was denied, and the jury subsequently found McNatt guilty of felony sexual assault.

On September 6, 1991, defendant again moved for a new trial on the grounds that the juror’s interruption during trial deprived him of a fair and impartial trial. After hearing oral arguments, the court found that the juror’s remarks had not indicated any bias against the defendant but were motivated by nonprejudicial sympathy for the child witness. The motion was denied, and on October 1, 1991, McNatt was sentenced to ten years in prison, with five suspended. The sentence included the condition that McNatt not be released from prison until undergoing sex offender evaluation and treatment. Notice of appeal was filed on October 2,1991.

I.

Did the District Court abuse its discretion when it denied McNatt’s motions for mistrial and a new trial after ajuror interrupted defense counsel during cross-examination of a witness?

The standard of review for reversing a lower court’s ruling on a motion for mistrial requires clear and convincing evidence that the trial court’s ruling was erroneous. State v. Gambrel (1990), 246 Mont 84, 803 P.2d 1071; State v. Salois (1988), 235 Mont. 276, 766 P.2d 1306. Because the trial court is in the best position to observe the jurors and determine the potential for prejudice when allegations of jury misconduct are raised, the court has significant latitude when ruling on these matters, and its determination is given considerable weight by this Court. State v. Eagen (1978), 178 Mont. 67, 582 P.2d 1195. We have also held that the grant or denial of a motion for a new trial is within the discretion of the trial court and will not be overturned unless it is shown that the defendant was deprived of a fair and impartial trial. State v. Gambrel, 803 P.2d at 1076; State v. Brush (1987), 228 Mont. 247, 741 P.2d 1333. In this instance, we conclude that the required showing of clear error to overturn the District Court’s rulings on the motions for mistrial and a new trial has not been met and conclude that the court did not abuse its discretion in denying McNatt’s motions.

Citing this Court’s holdings in State v. De Graw (1988), 235 Mont. 53, 764 P.2d 1290, and State v. Murray (1987), 228 Mont. 125, 741 P.2d 759, where we stated that jury misconduct tending to injure the defendant creates a presumption of prejudice to the defendant which the State must rebut by evidence of no injury, McNatt contends the presumption of prejudice remains because the State failed to meet this burden. When the court denied his motions and refused to question the juror on his ability to remain fair and impartial in light of this presumed prejudice, McNatt claims he was denied his constitutional right to a trial by a fair and impartial jury.

Although McNatt correctly states our holdings in regard to a rebuttable presumption of prejudice arising from jury misconduct, we have previously made clear that this burden shifts to the State only after there has been a threshold showing of misconduct which injures or prejudices the defendant. State v. Hedrick (1987), 229 Mont. 145, 745 P.2d 355; State v. Dickens (1982), 198 Mont. 482, 647 P.2d 338. As we recently emphasized in State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367, “alleged jury misconduct must affect a material matter in dispute and prejudice the complaining party.”

In this instance, we find no initial showing that the juror’s outburst resulted in prejudice to McNatt, and we will not make this inference when the District Court was in the best position to witness the incident and to evaluate the potential for prejudice. The comment occurred when a witness, who was not the victim, was being cross-examined on a matter that was not directly related to the elements of the alleged crime. It occurred while she was being asked when she recalled being told about the incident. The comment itself did not indicate any hostility toward the defendant, nor did it indicate that the juror had formed an opinion in relation to the defendant.

The trial judge, able to put the juror’s remark into context and to assess the effect of the juror’s conduct on the jury panel, consistently found no evidence of prejudice against McNatt. Based on in-comb observations, the judge found that the comment did not place blame on anyone, but was prompted by the fact that the juror “felt sorry for the little girl” after she repeatedly became upset by the same question.

McNatt contends that he was not only injured by the juror’s statement, but by the reaction of the judge when he agreed with the juror and stated: “I think he is right ... we have put this little girl through enough now.” McNatt claims that this concurrence in the juror’s statement, which was expressed to the entire jury panel, was extremely prejudicial.

We have cautioned that “to avoid prejudice to the defendant, the judge in a criminal trial should avoid making remarks which are calculated in any way to influence the minds of the jury.” State v. Dawson (1988), 233 Mont. 345, 354, 761 P.2d 352, 358. However, this remark did not indicate prejudice against McNatt; nor did it indicate an effort by the judge to influence the jury. We find nothing in the record to support the presumption of “extreme prejudice” upon which McNatt bases his argument.

In the absence of a showing of prejudice to McNatt resulting from the juror’s outburst, the misconduct in itself is insufficient to entitle him to a mistrial or new trial. We conclude that the court’s denial of McNatt’s motions was not an abuse of discretion.

II.

Did the District Court’s suspension of the cross-examination of a witness deprive McNatt of his constitutional right to confront and cross-examine that witness?

McNatt claims that due to the juror’s outburst, the witness, Tasha, was removed from the witness stand while she was in the process of being impeached and before defense counsel was finished questioning her on an issue directly related to her credibility. He argues that this was a denial of his constitutionally protected right to cross-examine adverse witnesses and is, therefore, ground for reversal. Citing Davis v. Alaska (1974), 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d. 347, McNatt contends that if the right to effective cross-examination is denied, constitutional error exists without the need to show actual injury.

The State counters with the argument that, while the absolute denial of the right to confront and cross-examine a witness would be an impermissible deprivation of the accused’s constitutional right, the defendant’s right to cross-examine is not absolute. The State cites State v. Gommenginger (1990), 242 Mont. 265, 274, 790 P.2d 455, 461, for the proposition that it is within the trial court’s discretion to exercise reasonable control over the mode of interrogating witnesses. Specifically, in this instance, the State claims the court acted within its discretion in deciding at what point the right to confront and cross-examine Tasha had been satisfied and beyond which point cross-examination would have been unreasonable.

The 1972 Montana Constitution and subsequent cases analyzing the confrontation clause have made it abundantly clear that full cross-examination is a critical aspect of the right of confrontation. State v. Young (1991), 249 Mont. 257, 815 P.2d 590. Balanced against this right of confrontation is Rule 611(a), M.R.Evid., which provides that the district court has discretion in exercising reasonable control over the mode and order of interrogating witnesses so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. We have held, however, that the court’s discretion in exercising this control becomes operative only after the constitutionally required threshold level of inquiry has been afforded the defendant. Gommenginger, 790 P.2d at 461, (citing United States v. Tracey (1st Cir. 1982), 675 F.2d 433, 437).

After reviewing the record in this instance, we hold that the trial court did not deprive McNatt of his constitutionally guaranteed right to confront and cross-examine witnesses when it removed the nine-year-old child from the stand after she repeatedly broke down in tears at a certain point in the questioning. The line of questioning at the time of the juror’s interruption and Tasha’s removal from the stand was intended to raise questions about her credibility due to the fact that her pretrial statement conflicted with her trial testimony. Even though Tasha never gave the specific answer which defense counsel was attempting to elicit, it was not unreasonable for the judge, after the question was repeated several times, to decide that continued questioning would probably not accomplish anything further.

Moreover, the paralegal’s subsequent testimony, which confirmed the inference raised in the question asked of Tasha, effectively put her credibility into issue. Although McNatt argues that testimony by a third party is not as effective as an admission by the party being questioned, the record does not suggest that continued pressure from defense counsel would have resulted in anything other than further loss of composure by the witness.

Defense counsel admitted in chambers that, while she had a few questions left for Tasha, she decided not to anger the jury by attempting to continue questioning her and immediately objecting to Tasha’s removal from the stand. However, the record clearly demonstrates that the court was willing to allow defense counsel to resume questioning at a later point in time if necessary and did not permanently foreclose further cross-examination on this or other issues.

In State v. Short (1985), 217 Mont. 62, 68, 702 P.2d 979, 982, after considering a similar issue, we stated:

This cross-examination brought out all the information necessary to argue the credibility ... of this witness to the jury. We hold that limiting the extent of the cross-examination ... did not violate [the defendant’s] right to confrontation of witnesses and was not an abuse of the trial court’s discretion.

Our reasoning expressed in Short applies in this case. The cross-examination of Tasha, supplemented with the testimony of the paralegal, adequately brought out the information necessary to argue Tasha’s credibility to the jury. Additionally, the court did not foreclose defense counsel’s ability to resume questioning if there were other areas of Tasha’s testimony she wished to explore. We hold that the court’s removal of Tasha from the stand after the juror’s outburst was a reasonable exercise of its discretion and did not violate McNatt’s constitutional right of confrontation.

For these reasons, we affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, HARRISON, McDONOUGH and WEBER concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF NORMAN JOSEPH ROCK, Petitioner and Respondent, and SHARON D. ROCK, Respondent and Appellant.
    No. 92-087.
    Submitted on Briefs January 21, 1993.
    Decided April 5, 1993.
    50 St.Rep. 369.
    257 Mont. 476.
    850 P.2d 296.

      For Appellant: Dennis E. Lind, Datsopoulos, MacDonald & Lind, Missoula.
    For Respondent: Raymond R Tipp, Tipp, Frizzell & Buley, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Sharon D. Rock appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the District Court of the Fourth Judicial District, Missoula County. At issue is the District Court’s determination that a promissory note from respondent Norman Joseph Rock (Joe) to Sharon is null and unenforceable. Sharon also appeals from the District Court’s division of the marital estate. We reverse.

We phrase the issues to be considered as follows:

1. Did the District Court err in determining that the promissory note was a nullity?

2. Was the District Court’s division of the marital estate clearly erroneous?

The parties were married on December 26, 1980, in Missoula. No children were born during the marriage. Joe and Sharon had both been married previously. At the date of dissolution Joe was 62 years old and Sharon was 50 years old.

I.

Did the District Court err in determining that the promissory note was a nullity?

Upon reviewing a lower court’s conclusions of law this Court will simply determine whether the lower court’s interpretation of the law was correct. We are not bound by the trial court’s conclusion and remain free to reach our own. Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 P.2d 522, 523.

At issue is a promissory note for $59,000 from Joe to Sharon acknowledging that he owed her for the loan she obtained for him from the Ronan State Bank. The loan from the bank was secured by Sharon’s home. The purpose of the loan was to refinance existing debts, such as a loan at the McKenzie Bank in North Dakota, and the lien on Joe’s tractor and trailer at the Lewiston, Idaho bank. According to Joe’s statements in the District Court transcript, both of these debts were his. Martin Olsson, loan officer at Ronan State Bank, stated that the bank had several previous loans of Joe’s that were outstanding. These loans were for Joe’s trucking company. The bank declined to give Joe another loan because of poor prior payment performance and inadequate collateral. Olsson stated that the use of Sharon’s house as collateral was the primary reason for the bank approving the $59,000 loan.

Joe admitted in court that he signed the promissory note to Sharon upon her request. He acknowledged that both Sharon and he were responsible for the bank loan.

Joe now claims that the promissory note between Sharon and him is unenforceable as a negotiable instrument. He argues that it was signed in blank with no attached exhibit, and therefore, was incomplete, that there was no “sum certain,” and that there was no consideration. We hold the lower court’s interpretation of the law as to the validity of the promissory note was incorrect. Even though the note is not a valid negotiable instrument, it should be enforced by implying a contract at law to prevent Joe from being “unjustly enriched” as a result of his use of the $59,000 loan and subsequent refusal to acknowledge the debt. Ragland v. Sheehan (Mont. 1993), 846 P.2d 1000, 50 St. Rep. 83.

Joe would not have had access to the $59,000 loan if Sharon had not pledged her house as collateral. Sharon would not have done so without the understanding that Joe would continue to be obligated to the bank for the loan.

Joe claims that when he signed the promissory note he did not intend to consent to any obligation, but lack of consent is irrelevant to an implied contract: “An implied contract does not arise from the consent of the parties — it springs from the principle of natural justice and equity, based on the doctrine of unjust enrichment.” Ragland, 846 P.2d at 1004, 50 St. Rep. 83 (citing St. James Community Hospital v. Dept. of Social and Rehabilitation Services (1979), 182 Mont. 80, 595 P.2d 379).

We hold that the promissory note at issue is enforceable as an implied contract at law. The District Court erred in determining that the promissory note was a nullity.

We reverse on this issue.

II.

Was the District Court’s division of the marital estate clearly erroneous?

In the past, district court decisions concerning the division of the marital estate have been reviewed by this Court under an abuse of discretion standard. This Court’s standard of review in these cases has been recently clarified. The factual findings of the district court relating to the division of marital property will be reviewed using the clearly erroneous standard. In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035; Rule 52(a), M.R.Civ.P. Concerning this Court’s review of conclusions of law made by a lower court “[w]e are not bound by the lower court’s conclusions and remain free to reach our own.” Schaub, 770 P.2d at 523.

The courts are obligated to fashion a distribution which is equitable to each party under the circumstances. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350; § 40-4-202, MCA. Working in equity, the courts must seek a fair distribution of the marital property using reasonable judgment and relying on common sense. Reaching this equitable distribution will at times require the court to engage in discretionary action which cannot be accurately categorized as either a finding of fact or a conclusion of law. These discretionary judgments made by the trial court are presumed to be correct and will not be disturbed on appeal absent an abuse of discretion by the lower court. Meridian Minerals Co. v. Nicor Minerals, Inc. (1987), 228 Mont. 274, 742 P.2d 456.

Sharon’s main contention on appeal is that the District Court was clearly erroneous in finding that her home was a marital asset which should be sold with the balance of the proceeds to be divided equally with Joe. Sharon contends that it was inequitable to award Joe one-half the balance of the proceeds from the sale when she owned the home free and clear early in the marriage. We agree. Section 40-4-202, MCA, provides that a district court shall:

[E] quit ably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.

While the home may be considered part of the marital estate, the District Court’s equal division of the home in this instance is inequitable. Section 40-4-202, MCA, requires equity, not equality. In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353. This equitable division of property must take into consideration the financial condition of each party at the time of marriage. In re Marriage of Summerfelt (1984), 212 Mont. 332, 688 P.2d 8. This Court recently stated that it was error for a district court to fail to credit a spouse with the value of a marital asset brought into the marriage. The District Court found that Sharon had $23,000 in equity in the home and had purchased her former husband’s one-half interest in the home for $23,000. Joe did not contribute in any way to the value of the home at the time of the marriage.

Joe may be entitled to a portion of the appreciation in value of the home pursuant to § 40-4-202, MCA, provided that his contributions during the marriage contributed to the appreciation in value of the home.

The testimony at trial was that Joe contributed $99,000 over a six-year period to the maintenance of the household. On appeal Joe refers to this $99,000 as “extra money” he gave to Sharon “beyond the family’s expenses and repairs ....” However, a careful review of the record indicates that this was Joe’s total financial contribution during the time period and was not in addition to other funds contributed to maintain the household.

Upon remand, the District Court shall consider the contributions of both parties to the maintenance and improvement of the home. The court shall consider to what extent this maintenance and any improvements may have contributed to the appreciation of value of the home.

The District Court also found that the failure to make payments on the mortgage debt caused a dissipation of the marital asset in the amount of $10,606. The loan obligation at the Ronan State Bank was a joint obligation, and any amount of dissipation of the marital asset must be attributed equally to both parties.

Many of the findings of fact in this matter are contradictory, are not supported by the evidence, and are not relevant to issues of this case. We will not address those.

Reversed and remanded to the District Court for further proceedings consistent with this opinion.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


text:
    IN RE THE MARRIAGE OF CAROL L. MIKESELL, Petitioner and Respondent, and LAURENCE R. MIKESELL, Respondent and Appellant.
    No. 92-518.
    Submitted on Briefs February 4, 1993.
    Decided April 5, 1993.
    50 St.Rep. 372.
    257 Mont. 482.
    850 P.2d 294.
    For Appellant: Terry G. Sehestedt, Missoula.
    For Respondent: Clinton Kammerer, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Laurence R. Mikesell appeals a judgment entered by the District Court of the Fourth Judicial District, Missoula County, denying his motion to set aside a default judgment. We affirm.

The issue is:

Did the District Court err in denying Laurence’s motion to set aside the default judgment?

The parties were married in December 1965. On July 2, 1991, respondent Carol Mikesell petitioned the court for dissolution of the marriage. Laurence was served with a copy of the petition and summons on July 22,1991, but failed to answer or appear in any way in response to the petition. On October 22, 1991, a default judgment was entered against Laurence. On December 19, 1991, he moved to set aside the default, and Carol responded with a motion to dismiss on December 30, 1991. On February 24, 1992, the court denied Laurence’s request to set aside the default, and it is from that order that Laurence appeals.

Did the District Court err in denying Laurence’s motion to set aside the default judgment?

Our standard of review of a trial court’s ruling on a motion to set aside a default judgment is abuse of discretion. Blume v. Metropolitan Life Insurance Co. (1990), 242 Mont. 465, 791 P.2d 784 (citing Lords v. Newman (1984), 212 Mont. 359, 364, 688 P.2d 290, 293, wherein we said that “[n]o great abuse of discretion need be shown to warrant reversal.”)

Rule 55(c), M.R.Civ.P., states that “[f]or good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b).”

In Blume, we stated:

In order to justify the district court in granting the motion [to set aside a default judgment], the defendant [is] required to show: (a) That he proceeded with diligence; (b) his excusable neglect; (c) that the judgment, if permitted to stand, will affect him injuriously, and that he has a defense to plaintiffs cause of action upon the merits.

Blume, 791 P.2d at 786.

In Blume, the defendant produced evidence to support its motion to set aside the default judgment. In that case, the summons, complaint, and documents were received in defendant’s mail room, but were lost before anyone in authority saw them. The defendant produced several supporting affidavits to show that no one had knowledge of the service. This Court emphasized that “upon learning of the default judgment against it, Metropolitan proceeded with the utmost diligence.” Blume, 791 P.2d at 786. In that case, this Court held that the district court abused its discretion in refusing to vacate the default judgment because “[t]he evidence produced by Metropolitan ... demonstrates that its failure to appear was not due to any inexcusable neglect or disrespect for the court or judicial process.” Blume, 791 P.2d at 787.

Here, Laurence showed disrespect for the judicial process when he completely ignored the petition and summons that he received on July 22, 1991, and even though he claimed that he attempted to hire an attorney upon receipt of the petition, acknowledged that he failed to pay him a retainer. He was not even able to recall the name of the attorney. He made no attempt to enter his appearance individually in person, or by phone or letter.

Laurence now claims that the default judgment should be vacated on the grounds that Carol made fraudulent misrepresentations to the court. Rule 60(b), M.R.Civ.P., states:

“On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons ... (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party ....”

The alleged misrepresentations were concerning Laurence’s salary, Carol’s salary, the child’s age and academic status, the proceeds from Laurence’s van, Carol’s right to life insurance paid by Laurence, and the value of items of machinery and other property. These allegations are not relevant to the issue of setting aside the default judgment.

In this case, we hold there was no abuse of discretion. We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and WEBER concur.


author: JUSTICE HARRISON

text:
    ROBERT PEPION, Petitioner and Appellant, v. BLACKFEET TRIBAL INDUSTRIES, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Insurer and Respondent.
    No. 92-354.
    Submitted on Briefs March 11, 1993.
    Decided April 6, 1993.
    50 St.Rep. 374.
    257 Mont. 485.
    850 P.2d 299.

      For Appellant: Donald R. Marble, Marble Law Office, Chester.
    For Respondent: Richard E. Bach, State Compensation Mutual Insurance Fund, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a judgment of the Workers’ Compensation Court denying Robert Pepion’s claim for workers’ compensation benefits. Robert J. Campbell was appointed the hearing examiner and the findings and judgment prepared by him were adopted by the Workers’ Compensation Court. We affirm.

While appellant Robert Pepion (Pepion) sets forth five issues to be considered by this Court, the primary and controlling issue is whether the findings and conclusions of the Workers’ Compensation Court are supported by substantial and credible evidence.

Pepion, an employee of Blackfeet Tribal Industries, alleges that on August 22, 1985, he suffered a cerebral vascular accident (stroke) during the course and scope of his employment for the Blackfeet Tribe (Tribe). He submitted a claim for compensation on June 24,1987, just two months short of two years after the date of the alleged accident. In his claim Pepion alleges that the injury was caused by “heavy lifting.” A similar notation on the employer’s first report of injury refers to “heavy lifting.”

On the day of his alleged injury Pepion was working as maintenance supervisor for the Tribe. He was checking the thermostats and furnaces in the main Tribal building in Browning, Montana. He testified that in order to reach the furnaces on the roof of the building, he carried two ladders to a corner of the building. He placed the heavier ladder against the roof of a walkway and climbed to the top of the walkway. He then pulled the lighter ladder to the roof of the walkway and used it to get to the roof of the building. He went up and down the ladders several times. On his last trip to the roof, he says, he felt tired and dizzy, and when coming down the first ladder he fell or slipped from the ladder to the roof of the walkway. He claims that he cannot remember coming down the second ladder to the ground or whether he took the ladders down himself. He was hospitalized that day in Great Falls and treated for stroke. Hospital records indicate that he had suffered a stroke while on the job.

Pepion took sick and annual leave until November 15, 1985. He then returned to work but due to problems on the job he lost his supervisor position and thereafter worked as a safety inspector until he was terminated in February 1988.

Pepion’s statement that he was going up and down the ladders to the roof of the Tribal building first appears in a report by his family physician, Dr. Randolph Rottenbiller, dated November 22, 1988, more than three years after the date of the alleged accident. Shortly thereafter Melvin Running Rabbit, a security guard for the Tribe, signed a written statement dated December 22,1988, which “reduced to writing [his] oral statement made to ... [the] attorney for Robert Pepion, on September 11, 1987.” The alleged conversation between Pepion’s attorney and Mr. Running Rabbit took place over two years after Pepion’s stroke of August 22, 1985. Mr. Running Rabbit’s statement includes the following:

I remember him going up and down a ladder to the roof to work on the furnace.... I saw him at one time on the ladders. He may have been up and down five (5) times, but I am quite sure it was at least twice.

In his deposition, however, Mr. Running Rabbit contradicted this statement. He said that he had seen Pepion going up and down the ladders a few days before, but not on the day of his stroke.

Two other Tribal employees were deposed in an attempt to ascertain whether anyone recalled Pepion’s activities on the day of his stroke. Gerald Silvas, an electrician for Blackfeet Tribal Industries, was on the maintenance crew supervised by Pepion. He was at the shop on the morning of the alleged accident. Mr. Silvas testified that normally two people are needed to work on the heating and air conditioning units on the roof of the Tribal building. According to Mr. Silvas, Pepion was not qualified to go up on the roof and work on the units. Although Mr. Silvas was a member of the maintenance crew and normally the one who would work on the units, he was not aware that anyone had gone up on the roof on the day of Pepion’s stroke.

Another member of the maintenance crew, Larry Jordan, was in the shop all morning on the day of Pepion’s stroke. He was not aware that Pepion had ever gone up on the roof by himself to work on the furnaces, or that he had used the ladders to go up on the roof on the day of his stroke.

Pepion had a complicated medical history prior to the time of his stroke on August 22, 1985. It includes rheumatic valvular heart disease, an enlarged heart, and a prosthetic mistral valve implanted in 1964. He had a history of intermittent atrial fibrillation and ventricular dysrhythmia. Because of the artificial heart valve and his history of intermittent arterial fibrillation, Pepion was at risk for blood clots and had been treated with Coumadin, an anti-coagulant medication.

On the date of Pepion’s stroke and for several months prior to that time, his blood was tested for the time it took to form clots (prothrombin- or “pro”-time). During this period his pro-time levels were sub-therapeutic, which meant that Pepion did not have enough Coumadin in his blood to prevent blood clots from forming in his system. Indian Health Service reports from 1979 on indicated that Pepion had a history of inconsistent compliance with his medical regime.

On the day of his stroke, Pepion was seen initially at Browning, and was then transported to Great Falls, where he was placed in the care of Dr. Larry Kincer, a cardiologist, and also was seen by Dr. Dennis Dietrich, a neurologist, for neurological problems.

Dr. Kincer stated in his deposition that Pepion’s condition at the time of his stroke was such that he was “very prone to heart irregularities;” that his risk of embolization “would not be expected to be greatly increased by physical activity, whether it be walking to the bathroom or walking up a ladder to the roof;” and that Pepion’s risk of stroke “would not be expected to be much different with some strenuous activity.”

Dr. Dietrich stated in his deposition that Pepion “had plenty of reason to have a stroke regardless of any activity that he was or wasn’t engaged in,” and that the mechanism of the stroke as he believed it occurred “did not require the presence of any exertion.” In other words, Dr. Dietrich believed that Pepion’s activity at work had no contributing effect on the stroke.

Pepion’s attorney eventually referred him to two other medical specialists, Dr. Keith Weeks and Dr. Albert Joern. Dr. Weeks, a Kalispell cardiologist who saw Pepion for the first time in September, 1991, testified that it was medically possible that Pepion’s work activity on August 22,1985 aggravated his pre-existing condition. Dr. Joern, a Kalispell neurosurgeon, concluded after examining Pepion in August, 1989 that “it was medically possible for the physical exertion and events of August 22, 1985 to precipitate [Pepion’s stroke].” But Dr. Dietrich, who had seen Pepion shortly after his stroke occurred and recalled Pepion’s condition on the day of the stroke, reviewed Dr. Joern’s report and disagreed with its conclusions because “some of his postulations are speculative, and others are clearly incorrect, in error.”

Pepion’s family physician in Browning, Dr. Rottenbiller, saw him shortly after his stroke and treated him thereafter. Dr. Rottenbiller’s opinion was that Pepion’s stroke was caused by a blood clot in his heart, which broke loose and travelled to his brain. He stated that “it’s hard... to establish a cause-and-effect relationship between this clot breaking loose ... and any activity that he was undergoing at the time.” Dr. Rottenbiller concluded that given the subtherapeutic level of anti-coagulant medication in Pepion’s blood that day, the stroke could have occurred at any time, and that medical evidence could not provide any degree of certainty as to the exact cause.

This Court will not substitute its judgment for that of the Workers’ Compensation Court where there is substantial credible evidence to support the court’s findings of fact. Laber v. Skaggs Alpha Beta (1991), 247 Mont. 172, 175, 805 P.2d 1375, 1377. Even though conflicting evidence may exist in the record, it is the duty of the Worker’s Compensation Court, and not this Court, to resolve such conflicts. Smith v. United Parcel Service (Mont. 1992), 835 P.2d 717, 49 St.Rep. 629; Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736 P.2d 113.

Here, the Workers’ Compensation Court, faced with conflicting medical testimony from Doctors Joern and Dietrich, concluded that it should defer to the opinion of “the doctor with the greater knowledge of the claimant’s medical condition,” that is, Dr. Dietrich, who testified that Pepion’s work activity had no contributing effect on his stroke and that the stroke could have occurred regardless of Pepion’s physical activity. Dr. Dietrich’s testimony was consistent with that of the treating cardiologist, Dr. Kincer, and Pepion’s family physician, Dr. Rottenbiller. All three physicians concluded that if Pepion did climb ladders and work on the Tribal building’s heating system on the day of his stroke, this activity played no role in his stroke.

Doctors Rottenbiller, Kincer, and Dietrich are or were the physicians who treated Pepion for his stroke and managed his care afterward. We hold that the Workers’ Compensation Court properly accorded their testimony greater weight than that of Doctors Joern and Weeks, who did not see Pepion until four and six years, respectively, after he had his stroke, and then only on referral by Pepion’s attorney. See Snyder v. San Francisco Feed & Grain (1987), 230 Mont. 16, 27, 748 P.2d 924, 931, in which we held that as a general rule, the testimony of a treating physician is entitled to greater evidentiary weight.

In short, Pepion failed to demonstrate by a preponderance of substantial, credible evidence that his work activities on August 22, 1985 were causally related to the stroke he had on that date. The judgment of the Workers’ Compensation Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LYNN C. CUMMINS, Defendant and Appellant.
    No. 92-453.
    Submitted on Briefs January 21, 1993.
    Decided April 6, 1993.
    50 St.Rep. 377.
    257 Mont. 491.
    850 P.2d 952.
    For Appellant: Jeannette Ellen Berry; Berry & Bordy, Bozeman.
    For Respondent: Marc Racicot, Attorney General, Michael Wellenstein, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Jane Mersen, Deputy County Attorney, Bozeman.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District, Gallatin County, the Honorable Larry W. Moran presiding. We affirm.

The issue presented is whether the District Court erred in denying the defendant’s motion to dismiss the complaint based on an unreasonable delay in the execution of an arrest warrant.

In 1988 and 1989, appellant Lynn C. Cummins (Cummins) maintained two separate checking accounts; one in the name of Cheri L. Cummins (the “Cheri” account) and one in the name of Lynn C. Cummins (the “Lynn” account). On her checks, the “Cheri” account listed her post office box number, while the “Lynn” account listed her street address.

Prior to the misdemeanor charge leading to this appeal, Cummins answered a complaint filed on May 1,1989, charging her with issuing bad checks, a misdemeanor, on the “Cheri” account. When the arrest warrant issued in that case, Cummins complied with the sheriff’s department’s direction to appear in Justice Court on the charge. After she made restitution on those checks and complied with other conditions, the court dismissed that complaint.

In August 1989, Cummins was again charged with issuing bad checks, a misdemeanor, for checks written on the “Lynn” account between September 25, 1988, and November 22, 1988. A sworn complaint was made on August 2,1989, and an arrest warrant issued that day. The warrant was delivered to and logged with the sheriffs department on August 11,1989. The warrant was executed May 1, 1991, one year and nine months from the date it was issued. This means that Cummins was arrested two years and five months from the date of the offense.

Cummins testified that she was under the impression that all of her outstanding checks were included in the May 1989 prosecution, and that to her knowledge, she did not receive notice that there were checks outstanding on the “Lynn” account.

Cummins moved to dismiss the complaint in Justice Court on July 9, 1991. She argued that the delay in executing the arrest warrant was unreasonable, therefore it violated her due process rights. Cummins does not claim prejudice on appeal or explain how she might have been prejudiced by any delay. She claims that because she had no notice of the complaint for a period of twenty-one months, her due process rights were violated. She also argued in her motion that the delay violated the “spirit” of the one-year statute of limitations for commencing prosecution of a misdemeanor. On July 2,1991, the court denied her motion to dismiss and found her guilty of issuing bad checks. Cummins appealed to the District Court for a trial de novo and, on January 31,1992, she filed a similar motion to dismiss in the District Court. Following submission of briefs and a hearing, the District Court denied her motion to dismiss on February 10,1992.

On June 11,1992, by stipulation and pursuant to § 46-12-204(3), MCA, Cummins pled guilty to the charged offense, reserving the right to appeal from the District Court’s denial of her motion to dismiss. The District Court accepted her plea of guilty to the misdemeanor charge of issuing bad checks and issued an order deferring imposition of her sentence for six months on the condition that she pay $194.89 in restitution and perform 40 hours of community service. The sentence was stayed pending the outcome of this appeal.

The issue on appeal is whether the District Court abused its discretion in denying Cummins’ motion to dismiss the complaint. She argues that the complaint should have been dismissed for unreasonable delay in prosecution under the authority of § 46-13-401(1), MCA, which provides in part: “The court may ... in furtherance of justice, order a complaint... to be dismissed....” As this Court noted in State ex rel. Anderson v. Gile (1946), 119 Mont. 182, 187, 172 P.2d 583, 586:

The legislature has not attempted to define the phrase “in furtherance of justice” ..., hence it is left for judicial discretion exercised in view of the constitutional rights of the defendant and the interests of society to determine what particular grounds warrant the dismissal of a pending criminal action.

The statute of limitations for prosecuting a misdemeanor in Montana is set forth in § 45-l-205(2)(b), MCA, which states that “[a] prosecution for a misdemeanor must be commenced within 1 year after it is committed.” The prosecution is commenced when the complaint is filed. Section 45-1-205(7), MCA. In this case the State filed the complaint in a timely fashion, approximately nine months after the alleged commission of the offense. Although Cummins admits the State filed its complaint within the statute of limitations, she argues that “reasonable diligence is also required in executing the arrest warrant to effectively toll the statute of limitations.” We need not decide the case in this basis.

The District Court determined that the warrant was not “stale” under the circumstances of the case. Cummins testified at trial that her real name was Cheri Lynn Cummins, not Lynn C. Cummins — the name on the checks. Although the sheriffs department had an áddress for Cummins, when they attempted to serve her at that address they found no one home. When they finally contacted her husband at that address he told the deputy that he and Cummins were separated and that she was living in Missoula, even though this was not true. Her husband did not tell her that the sheriffs department wanted to speak with her.

Between August 1988 and February 1990, Cummins and her husband lived at the address stated on her checks. However, Cummins lived there sporadically in Januaiy and February of 1990 as she and her husband were “fighting.” Between February and the time she was arrested, she lived at six different locations in Gallatin County for short periods of time, including places in Bozeman, West Yellowstone, and Amsterdam. She also worked in at least seven different locations during that period.

In attempting to serve her with the warrant, the sheriffs department went through a checklist of potential information sources. A sergeant with the department testified that the warrant in this case was worked approximately fives times as much as the other misdemeanor warrants they had on file.

The record indicates that the sheriffs department personnel do not have unlimited resources to track down eveiy lead in their effort to serve arrest warrants. The department received approximately 2,000 arrest warrants during 1989,1990 and 1991 and the volume makes it néarly impossible to follow up on every lead.

This was recognized by the District Court in denying Cummins’ motion to dismiss the complaint where it noted:

I think we have to interpret these regulations with some degree of practicality. The sheriff in a bad check case cannot spend all of his time day after day after day trying to track down a person that writes bad checks, particularly a person who is writing bad checks out of two accounts under two different names at the same time. And that’s precisely the circumstance the evidence, at least insofar as the pleadings are concerned, indicated here. I feel that the case is not stale, and the Motion to Dismiss is denied.

We find the State did not violate the statute of limitations or Cummins’ due process rights.

Affirmed.

JUSTICES TRIEWEILER, HUNT, McDONOUGH and WEBER concur.


text:
    FIRST NATIONAL BANK OF LEWISTOWN, a Banking Corporation, Plaintiff and Respondent, v. GARY L. MORK, Defendant and Appellant. GARY L. MORK, Third-Party Plaintiff, v. THERESA DESMANAIS, f/k/a THERESA O’REILLY and THERESA MORK, Third-Party Defendant.
    No. 92-398.
    Submitted on Briefs January 21, 1993.
    Decided April 7, 1993.
    50 St.Rep. 379.
    257 Mont. 495.
    850 P.2d 954.

      For Appellant: Jerrold L. Nye, Nye & Meyer, Billings.
    For Respondent: James L. Stogsdill, Lewistown.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Gary Mork (Mork) appeals from a judgment entered in the Tenth Judicial District Court, Fergus County, ordering him and third-party defendant Theresa Desmanáis (Desmanáis) to pay the deficiency incurred by respondent First National Bank of Lewistown (the Bank) upon the sale of collateral securing the debt on a promissory note. We affirm.

The dispositive issue on appeal is whether the Bank met the statutory notice requirements of §§ 30-1-201(26) and 30-9-504(3), MCA.

On March 17,1980, Mork and Desmanáis, who was Mork’s wife at the time, borrowed $ 15,000 from the Bank to purchase a mobile home. They signed a promissory note promising to pay the Bank a total of $38,899.80 in principal and interest over a fifteen-year period. The mobile home was listed as collateral for the loan and the Bank properly perfected a security interest in it.

The Morks listed their address as #17 Hickory Lane, Lewistown, Montana, on all of the loan documents, including the promissory note, the security agreement, the HUD/FHA credit application, the HUD/FHA placement certificate, and the purchase documents from the mobile home dealer. They listed #6 Willow Lane, Lewistown, Montana, as their previous address on the HUD/FHA credit application. At the time they signed the documents, though, they had not moved to #17 Hickory Lane as that was the address where the mobile home eventually was to be located.

Mork and Desmanais eventually divorced. According to Mork’s third-party complaint, Desmanais received the mobile home in the divorce and agreed to indemnify Mm for any claims the Bank might have against him.

Due to financial difficulty in July 1987, Desmanais entered a loan extension agreement allowing her to forego paying two monthly installments and extending the maturity date of the loan. In October 1988, the Bank contacted Desmanais because she was again behind in her payments. After conferring with her attorney, Desmanais voluntarily turned the mobile home over to the Bank. Once the Bank had regained title it sent both Desmanais and Mork a request to waive the requirement that the Bank notify them when it intended to sell the mobile home. Desmanais signed this request. The Bank sent Mork’s request by regular and certified mail to #6 Willow Lane. The post office returned the requests unopened. The Bank also sent Desmanais and Mork a document entitled “NOTICE OF PRIVATE SALE AND RIGHT TO REDEEM REPOSSESSED COLLATERAL.” It sent Mork’s copy to #6 Willow Lane. This document also was returned unopened.

The Bank eventually sold the home through a mobile home realtor for $4,000. After paying lot rental and commission, the Bank received $3,173, leaving a deficiency of $8,088.24 still due and owing on the note. The Bank sued only Mork for the deficiency. Mork filed a third-party complaint against Desmanais seeking to be indemnified for any judgment entered against Mm. She did not appear in this action, so her default was entered. The District Court awarded the Bank a judgment against Mork and Desmanais for a principal balance of $8,088.24 on the note; interest of $4,245.39; attorney’s fees of $500; and costs of $180.50. The District Court also allowed Mork to recover from Desmanais any and all sums he paid to the Bank by reason of the judgment.

On appeal, Mork claims that the Bank is not entitled to a deficiency judgment against him because it failed to satisfy the notice requirements of § 30-9-504(3), MCA. That section provides in pertinent part:

30-9-504. Secured party’s right to dispose of collateral after default - effect of disposition.
(3)(a)... [E]very aspect of the disposition including the method, manner, time, place, and terms must be commercially reasonable. ... [Reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor if he has not signed after default a statement renouncing or modifying his right to notification of sale. In the case of consumer goods no other notification need be sent.
(b) Notification by the secured party is reasonable under subsection (3)(a) and constitutes steps reasonably required to inform another in the ordinary course under 30-1-201(26) if it is sent by certified mail to the most recent address provided by the debtor or another secured party as follows:
(i) the address stated on the security agreement or other applicable loan document in the case of a debtor ...
(ii) such other address of which the secured party receives notice in writing from the debtor ... prior to the time notification is sent to the most recent address previously given under subsection (3)(b)(i) or this subsection (3)(b)(ii).

Section 30-1-201(26), MCA, referenced in subsection 3(b) above, provides:

A person “notifies” or “gives” a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. ...

The secured party bears the burden of proving the commercial reasonableness of the sale, including the commercial reasonableness of the notification. Bank of Sheridan v. Devers (1985), 217 Mont. 173, 176, 702 P.2d 1388, 1390. Failure to give reasonable notice precludes the secured party from recovering a deficiency judgment. Bank of Sheridan, 702 P.2d at 1390; Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 523, 731 P.2d 327, 331; Wippert v. Blackfeet Tribe (1985), 215 Mont. 85, 90, 695 P.2d 461, 465. However, § 30-9-504(3), MCA, must be read in conjunction with § 30-1-201(26), MCA, which does not require that the debtor receive actual notice of the sale; it only requires that the creditor take reasonable steps to assure that the debtor is notified. Talcott, Inc. v. Reynolds (1974), 165 Mont. 404, 410, 529 P.2d 352, 355; Bulan v. Montana Nat’l Bank (1983), 203 Mont. 177, 184, 661 P.2d 28, 31.

Mork relies solely on Bank of Sheridan and Westmont Tractor Co. to argue that because the notices were sent to #6 Willow Lane rather than #17 Hickory Lane — the address on the loan documents — the notice requirements of § 30-9-504(3), MCA, have not been met, so the Bank is precluded from recovering a deficiency from him.

Michael Phillips, assistant vice-president of the Bank, testified as to the Bank’s efforts to locate Mork. Mr. Phillips asked Desmanais if she knew how to contact Mork. She informed him that she had not spoken with Mork since their divorce. Mr. Phillips also explained why the notices were sent to #6 Willow Lane. His understanding was that the mobile home would eventually be placed at #17 Hickory Lane, but at the time the documents were signed, the Bank knew that the Morks lived at #6 Willow Lane. It is undisputed that the Morks never sent written notice to the Bank that they had actually moved to #17 Hickory Lane. In fact, the Bank finally located Desmanais and the mobile home in Colstrip. Further, the District Court found that following the closing of the loan the Bank had sent all correspondence and notification to the Morks at #6 Willow Lane, none of which were returned to the Bank. Finally, when Mork moved from Lewistown, he did not notify the Bank where he could be contacted.

The Bank sent notice to Mork at his last known address. We conclude that the Bank satisfied the statutory notice requirements under these facts. Having concluded that the Bank could properly recover a deficiency judgment, we need not address Mork’s request for penalties and attorney’s fees.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.