author: JUSTICE NELSON DISTRICT JUDGE MCKEON JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES ELMER WEAVER, Defendant and Appellant.
    No. 97-304.
    Heard March 10, 1998.
    Submitted March 10, 1998.
    Decided July 1, 1998.
    1998 MT 167.
    55 St.Rep. 668.
    290 Mont. 58.
    964 P.2d 713.

      For Appellant: James H. Goetz (argued), Brian M. Morris (argued), Goetz, Madden & Dunn, Bozeman; James C. Bartlett, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General (argued), Helena; Thomas J. Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶ 1 James Elmer Weaver (Weaver) was tried by a jury in the District Court for the Eleventh Judicial District, Flathead County, on four counts of sexual assault involving minors. He was convicted on two of the counts and acquitted on the other two counts. Weaver appeals from the judgment of conviction and sentence. We affirm in part, reverse in part, and remand for a new trial.

¶2 The following issues were raised on appeal:

¶3 1. Did the District Court commit plain error by failing to instruct the jury, sua sponte, that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information?

¶4 2. Did the District Court properly deny Weaver’s motion to dismiss which was based upon the investigating officer’s failure to record her interviews with the victims?

¶5 3. Did the District Court abuse its discretion with respect to its rulings on the testimony of Shawn Trontel and Judy Starr?

¶6 Because we reverse on the first issue and remand for a new trial, we decline to address the last issue regarding witness testimony.

Factual and Procedural Background

¶7 Weaver was charged by information with four counts of sexual assault in violation of § 45-5-502(1), MCA. Weaver had been a volunteer with the Big Brothers/Big Sisters program (Big Brothers) in Whitefish since 1984. Over a period of eleven years, Big Brothers matched Weaver with five “little brothers.” Four of these boys were named as victims in the charges against Weaver. All of the boys were between nine and eleven years old when they were matched with Weaver.

¶8 Weaver was first matched with J.M. in June 1984, and he acted as J.M.’s big brother until April 1989. In April 1994, J.M. was involved in an automobile accident wherein he sustained some brain damage and was thereafter diagnosed as mildly retarded. One night in June 1995, J.M. told his mother that he had been molested by Weaver during the time that he had been Weaver’s little brother. J.M. had never before mentioned any inappropriate conduct on the part of Weaver. Because Weaver was still active in Big Brothers, J.M.’s mother reported the allegations to the director of Big Brothers who contacted the Flathead County Sheriffs Department.

¶9 Detective Maxine Lamb interviewed J.M. and on October 4,1995, the Flathead County Attorney's Office filed a request for an arrest warrant. One month later, an information was filed charging Weaver with sexual assault against J.M. The information charged Weaver as follows:

The Defendant, James Elmer Weaver, between approximately June, 1984, and April, 1989, knowingly subjected another, J.M., date of birth May 2, 1975, to sexual contact without consent, in Flathead County, Montana, contrary to Section 45-5-502(1), M.C.A.

¶10 Detective Lamb also interviewed T.C. T.C. was matched with Weaver in February 1991 and was Weaver’s little brother until Big Brothers ended the relationship in August 1995 due to the allegations against Weaver. Detective Lamb interviewed T.C. at his school without first notifying his parents and without any school officials present in contravention of school policy. Based on an allegation from T.C. (that T.C. later said he was bullied into making) of a single incident of inappropriate touching, the Flathead County Attorney’s Office filed an amended information on November 16, 1995, charging Weaver with sexually assaulting T.C. This amended information contained the original charge involving J.M. and also charged Weaver as follows:

The Defendant, James Elmer Weaver, during the summer of 1993, knowingly subjected another, T.C., date of birth October 19,1980, to sexual contact without consent, contrary to Section 45-5-502(1), M.C.A.

¶11 Also included in this information was a charge involving E.B., who had been Weaver’s little brother from January 1990 until July 1990. Detective Lamb had interviewed E.B. at his school, again without first notifying E.B.’s parents and without any school officials present in contravention of school policy. The charge involving E.B. stated:

The Defendant, James Elmer Weaver, between approximately January 18,1990, and July 2,1990, knowingly subjected another, [E.B.], date of birth October 21, 1980, to sexual contact without consent, contrary to Section 45-5-502(1), M.C.A.

¶12 After the allegations against Weaver had surfaced, Weaver’s wife contacted the mother of the fourth boy, D.M., to enlist their help in defending Weaver against the pending charges. Weaver had been D.M.’s big brother from July 30,1990, until December 1,1990, when D.M. moved with his mother to Shelby. D.M.’s mother refused to support Weaver and, instead, contacted the Flathead County Attorney’s Office.

¶13 Detective Lamb interviewed D.M. at his home on February 21, 1996. On March 19,1996, the Flathead County Attorney’s Office filed a second amended information adding a charge of sexual assault involving D.M. This information stated, in part:

The Defendant, James Elmer Weaver, between approximately July 30, 1990, and December, 1§90, knowingly subjected D.M., date of birth August 21,1981, to sexual contact without consent, in Flathead County, Montana, contrary to Section 45-5-502(1), M.C.A.

¶ 14 The fifth boy, K.L., was Weaver’s little brother beginning sometime in 1988 and ending after one year when K.L. moved with his family to Eureka. Detective Lamb set up an interview with K.L., but that interview was canceled when KL.’s mother insisted that the interview be videotaped and that she should receive a copy of the tape. No charges were filed involving K.L.

¶15 Detective Lamb refused to videotape or audiotape the interviews of any of the boys. Furthermore, she did not allow any witnesses present during those interviews and did not make any written notes of the interviews. She later testified that she does not record or take notes of the interviews in such cases so that the victims will not be further traumatized during the process of disclosing embarrassing information.

¶ 16 On May 29,1996, Weaver filed a motion to dismiss the charges on the grounds that Detective Lamb intentionally failed to preserve evidence vital to his defense by failing to videotape or audiotape her interviews with the boys or to make handwritten notes of the interviews. Weaver argued that the interviews needed to be reviewable by defense counsel and the court and that the inability to do so resulted in a denial of his right to due process. The District Court held a hearing on June 14,1996, and, four days later, issued an order denying the motion.

¶17 Trial before a jury was held June 20 through 27,1996. All five boys testified at trial. J.M. testified to several incidents of sexual assault during the five years that he was Weaver’s little brother. D.M. also testified to several incidents of sexual assault, but provided no specific dates or times for these incidents. E.B. testified to an incident on a fishing trip wherein Weaver touched the outside of E.B.’s pants prior to helping E.B. unbutton the top button of his pants so that E.B. could urinate. T.C. testified that Weaver merely explained to him that a penis had more purposes than simply urinating. K.L. testified that there had never been any sexual contact or discussions between himself and Weaver.

¶18 In Weaver’s defense, T.C.’s mother testified that T.C. suffered from liver cancer and, since there existed the potential for impotency and sterility, she had given T.C. a book on teenage sexuality and told Weaver that T.C. might have questions regarding the book. T.C.’s mother testified that she objected to T.C. being named as a victim in this case as neither she nor T.C. believed that T.C. had been sexually assaulted by Weaver.

¶19 At the end of the State’s case, Weaver moved for directed verdicts on the counts involving E.B. and T.C., but the District Court denied the motions. Thereafter, the jury found Weaver guilty on the charges involving J.M. and D.M. and not guilty on the charges involving T.C. and E.B.

¶20 On August 20,1996, Weaver filed a motion to disqualify District Judge Katherine Curtis. A hearing was held on the disqualification motion on September 12, 1996, and the motion was granted the following week. On October 30, 1996, District Judge William Neis Swandal assumed jurisdiction of the case.

¶21 After a March 14,1997 hearing, the District Court sentenced Weaver to two consecutive ten-year sentences. The court determined that treatment in the local community afforded Weaver a better opportunity for rehabilitation, thus the court suspended the entire sentence and placed Weaver on probation subject to certain conditions. These conditions included house arrest until Weaver substantially completed a sex-offender treatment program. Weaver appeals from the judgment of conviction and sentence.

Issue 1.

¶22 Did the District Court commit plain error by failing to instruct the jury, sua sponte, that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information?

¶23 Weaver contends on appeal that the State’s “vague allegations” as contained in the amended information and the District Court’s general instructions regarding unanimity enabled the State to convict Weaver “merely by creating a bad taste in the jury’s mouth rather than proving a specific incident of sexual assault beyond a reasonable doubt.” The State argues that since Weaver did not make a contemporaneous objection to the District Court’s instructions on unanimity and did not propose any instructions of its own, Weaver did not preserve this issue for appeal and this Court may properly decline to review it.

¶24 We have consistently held that we will not consider issues raised for the first time on appeal when the appellant had the opportunity to make an objection at trial. State v. Dahlin, 1998 MT 113, ¶ 13, 961 P.2d 1247, ¶ 13, 55 St.Rep. 446, ¶ 13 (citing State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491). Pursuant to § 46-20-104(2), MCA, “[fjailure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2), [MCA,]” which provides:

(2) Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.

Unquestionably, Weaver’s claim does not fall within one of these narrow statutory exceptions.

¶25 Nevertheless, while we have previously acknowledged the constraints of § 46-20-701(2), MCA, we have also recognized this Court’s “inherent power and paramount obligation to interpret Montana’s Constitution and to protect the various rights set forth in that document.” State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215. To that end we held in Finley that this Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous obj ection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may: (1) result in a manifest miscarriage of justice; (2) leave unsettled the question of the fundamental fairness of the trial or proceedings; or (3) compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215. Even so, we stated in Finley that “given the legislature’s obvious intention to restrict the use of plain error review by its enactment of § 46-20-701(2), MCA, we will henceforth use our inherent power of common law plain error review sparingly, on a case-by-case basis. ...’’Finley, 276 Mont. at 138, 915 P.2d at 215.

¶26 Before we can invoke common law plain error review, we must first determine whether the alleged error implicates Weaver’s fundamental constitutional rights. Article II, Section 26 of the Montana Constitution provides in part: “In all criminal actions, the verdict shall be unanimous.” Since the right to a unanimous verdict is explicit in the Declaration of Rights in Montana’s Constitution, it is a fundamental right. See Gryczan v. State (1997), 283 Mont. 433, 449, 942 P.2d 112, 122.

¶27 Next, we must determine whether the failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of Weaver’s trial, or compromise the integrity of the judicial process. Uncertainty about the nature of the verdict in this case — i.e., whether the jurors were unanimous in their verdict, certainly brings into question the fundamental fairness of Weaver’s trial. Hence, having met the criteria established in Finley, we invoke common law plain error review in this case to determine whether the District Court erred in failing to instruct the jury that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count charged in the information.

¶28 The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Patton (1996), 280 Mont. 278, 286, 930 P.2d 635, 639 (citing State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737; State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548). Moreover, we recognize that a district court has broad discretion when it instructs a jury. Patton, 280 Mont. at 286, 930 P.2d at 639 (citing State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167).

¶29 In the case before us on appeal, the District Court charged the jury with the following general unanimity instruction:

The law requires the jury verdict in this case to be unanimous. Thus, all twelve of your number must agree in order to reach a verdict on each Count contained in the Information whether the verdict be guilty or not guilty....

In addition, the court instructed the jury as follows:

Each count charges a distinct offense. You must decide each count separately. The defendant may be found guilty or not guilty of any or all of the offenses charged. Your findings as to each count must be stated in a separate verdict.

¶30 Weaver contends that these instructions were insufficient as the two counts for which he was convicted broadly charged a protracted series of alleged illicit acts spread over a lengthy period of time and, as a result, the jury may have unanimously believed that he was guilty of something without actually agreeing unanimously on precisely which acts he was guilty. Weaver argues that if a jury is not required to unanimously find a defendant guilty of a specific act, the State would be relieved of its burden to prove every element of a criminal offense beyond a reasonable doubt.

¶31 The State contends, on the other hand, that the jury verdict in this case shows unanimous agreement that Weaver committed the offense of sexual assault against J.M. and D.M. The State argues that Weaver’s reliance on federal appeals court cases is misplaced as those cases are predicated upon federal statutes far different from the sexual assault statute at issue here. While the federal statutes do require different elements, the reasoning of the courts of appeals is instructive and the principles at issue are universal.

¶32 In one of the cases cited by Weaver, United States v. Holley (5th Cir. 1991), 942 F.2d 916, the Fifth Circuit Court of Appeals held that the failure to give a specific unanimity instruction was reversible error. Holley, 942 F.2d at 923. The indictment expressly charged that the defendant had committed perjury by making certain specific statements. The court in Holley determined that there was a reasonable possibility that the jury was not unanimous with respect to at least one statement in each count because the general unanimity instruction failed to require that all of the jurors concur in the “knowing falsity of at least one particular statement.” Holley, 942 F.2d at 929.

¶33 In its analysis of this issue, the Holley court noted:

As Justice Blackmun recently observed in his separate concurrence in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 1234, 1237 n.5, 108 L.Ed.2d 369(1990): “[i]n federal criminal prosecutions, where a unanimous verdict is required, the Courts of Appeals are in general agreement that ‘[u]nanimity ... means more than a conclusory agreement that the defendant has violated the statute in question; there is a requirement of substantial agreement as to the principal factual elements underlying a specified offense.’ ” (quoting United State v. Ferris, 719 F.2d 1405, 1407, (9th Cir. 1983)). See also United States v. Gipson, 553 F.2d 453, 456-459 (5th Cir. 1977). We have previously stated that

“[t]he unanimity rule thus requires jurors to be in substantial agreement as to just what a defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. Requiring the vote of twelve jurors to convict a defendant does little to insure that his right to a unanimous verdict is protected unless this prerequisite of jury consensus as to the defendant’s course of action is also required.”Id. at 457- 58.

Holley, 942 F.2d at 925 (emphasis added).

¶34 In like manner, the Ninth Circuit Court of Appeals reversed a defendant’s conviction for distributing cocaine and conspiracy to distribute cocaine even though the trial judge had given the jury a general instruction that their verdict had to be unanimous. United States v. Echeverry (9th Cir. 1983), 719 F.2d 974. In making this determination, the Court of Appeals stated:

When it appears... that there is agenuine possibility of jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts, the general unanimity instruction does not suffice. To correct any potential confusion in such a case, the trial judge must augment the general instruction to ensure the jury understands its duty to unanimously agree to a particular set of facts.

Echeverry, 719 F.2d at 975 (emphasis added).

¶35 Federal appeals courts are not the only courts to recognize the necessity of specific unanimity instructions. In a case factually similar to the instant case, the Court of Appeals for the Third District of California, referring to what it called the “either/or” rule, stated that

when the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed ... that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act.

People v. Gordon (1985), 165 Cal.App.3d 839, 853, 212 Cal.Rptr. 174, 183. Even though it did not find it applicable to the case before it, the court in Gordon also pointed out an exception to the “either/or” rule, i.e., the continuous course of conduct:

This exception arises when the criminal acts are so closely connected that they form part of one and the same transaction, and thus one offense. Thus, “[s]eparate acts may also result in but one crime if they occur within a relatively short time span. ...” In this case, there is absolutely no evidence concerning the timing of the two acts of sodomy, except that they allegedly occurred between 1978 and August 1979 and that one may have occurred during a camping trip in July 1979.

Gordon, 165 Cal.App.3d at 854-55, 212 Cal.Rptr. at 184-85.

¶36 In the present case, the State contended during oral argument before this Court that Weaver’s alleged assaults of J.M. and D.M. were just such a continuous course of conduct, thus it was not necessary for the jury to unanimously agree upon at least one specific underlying act of sexual assault for each count. However, Weaver was not charged with a continuous course of sexual assault against any of the boys. He was charged with knowingly subjecting another “to sexual contact without consent” occurring during a specific period of time. Moreover, Weaver’s alleged acts were not so closely connected that “they form part of one and the same transaction, and thus one offense,” nor did they occur within “a relatively short time span.” The State’s proof at trial was that the alleged discrete incidents of sexual assault took place over a five-year period in the case of J.M. and over a six-month period in the case of D.M.

¶3 7 In a similar fashion to the federal courts of appeal and the California Court of Appeals, this Court has previously held a trial court in error for not properly instructing the jury as to the unanimity of its verdict, albeit under a different basis than at issue in the instant case. State v. Weldy (1995), 273 Mont. 68, 79, 902 P.2d 1, 7. In Weldy, the defendant was charged with and found guilty of one count of felony assault under § 45-5-202(2), MCA (1993), which set forth three distinct alternatives for committing felony assault. Two of these alternatives were relevant in Weldy. We stated in that case that although the jury was instructed as to the requirement of a unanimous verdict, it was not clear from either the instructions or the verdict form under which alternative the jury reached its verdict. Thus, we concluded that the instructions and the verdict form should have been structured so that it was clear to the jury that it was required to reach a unanimous verdict under one alternative or the other, or both. Weldy, 273 Mont. at 78-79, 902 P.2d at 7.

¶38 While Weldy is not precisely on point with the case sub judice, our reasoning in Weldy is analogous. The two counts on which Weaver was convicted charged him with a series of unrelated allegations of sexual misconduct taking place over a period of years. It is not clear from either the jury instructions or the verdict form whether the jury unanimously agreed upon at least one specific underlying act of sexual assault for each count. We find the sound rationale in Holley, Echeverry, Gordon and Weldy persuasive, hence, we hold that the District Court should have given an instruction to make it clear to the jury that it was required to reach a unanimous verdict on at least one specific act for each count.

¶39 Having held in this manner, we are compelled to suggest

some language for future cases where a specific unanimity instruction is determined to be necessary. Consequently, where appropriate, a trial court should charge the jury in language similar to either of the following California model jury instructions:

The defendant is charged with the offense of_. He may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of such acts, but in order to find the defendant guilty, all the jurors must agree that he committed the same act or acts. It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.

Gordon, 165 Cal.App.3d at 852, 213 Cal.Rptr. at 183 (quoting CALJIC No. 17.01 (4th ed. 1979)).

Defendant is charged in [Count_of] the information with the commission of the crime of_, a violation of section _of the [Montana] Code, on or about a period of time between _and_. [¶] In order to find the defendant guilty, it is necessary for the prosecution to prove beyond a reasonable doubt the commission of a specific act [or acts] constituting said crime within the period alleged. [¶] And, in order to find the defendant guilty, you must unanimously agree upon the commission of the same specific act [or acts] constituting said crime within the period alleged. [¶] It is not necessary that the particular act or acts committed so agreed upon be stated in the verdict.

Gordon, 165 Cal.App.3d at 853, 213 Cal.Rptr. at 184 (quoting CALJIC No. 4.71.5 (4th ed. 1982)).

¶40 Accordingly, we hold that the failure of the District Court to instruct the jury that it had to reach a unanimous verdict as to at least one specific underlying act of sexual assault for each count was error and we reverse and remand for a new trial.

Issue 2.

¶41 Did the District Court properly deny Weaver’s motion to dismiss which was based upon the investigating officer’s failure to record her interviews with the victims?

¶42 In his motion to dismiss, Weaver contended that the law enforcement officers investigating the charges against him failed to preserve evidence vital to his defense by intentionally failing to videotape or audiotape any of the interviews with the four boys and by failing to take or preserve handwritten notes of the interviews. Weaver argued that some record of the interviews should have been preserved so that it could be reviewed by defense counsel as well as the court and that the inability to preserve a record of the interviews resulted in a denial of Weaver’s right to due process. In its order denying Weaver’s motion, the District Court noted that Weaver was unable to cite to any cases that hold that the failure to record interviews is a denial of due process as a matter of law. The court concluded that Weaver was not entitled to dismissal of the charges against him because the failure to record the interviews did not constitute destruction of material exculpatory evidence.

¶43 The grant or denial of a motion to dismiss in a criminal case is a question of law. City of Helena v. Danichek (1996), 277 Mont. 461, 463, 922 P.2d 1170, 1172 (citing State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195). Our standard of review of a district court’s conclusion of law is plenary and we will review the court’s conclusion to determine whether it is correct. Danichek, 277 Mont. at 463, 922 P.2d at 1172 (citing Hansen, 273 Mont. at 323, 903 P.2d at 195; State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359).

¶44 Weaver contends on appeal that “there is strong reason to believe” that the interviews conducted in this case were “unduly suggestive and coercive.” He relies on State v. Michaels (N. J. 1994), 642 A.2d 1372, for his contention that sufficiently coercive or suggestive interview practices can irremediably alter the perceptions of child victims, thus, absent exigent circumstances, all such interviews should be recorded to insure a defendant’s right to due process.

¶45 The defendant in Michaels was a nursery school teacher who had been convicted of bizarre acts of sexual abuse against many of the children in her care. In setting aside her conviction, the New Jersey Supreme Court concluded that the interviews of the child victims were highly improper and that investigators employed coercive and unduly suggestive methods. The court determined that, as a result, a substantial likelihood existed that “the children’s recollection of past events was both stimulated and materially influenced by that course of questioning.” Michaels, 642 A.2d at 1380. The court concluded that if the state intended to reprosecute the defendant, a hearing should be held to determine whether the statements and testimony elicited by the improper interview techniques retained a sufficient degree of reliability to warrant admission at trial. Michaels, 642 A.2d at 1384-85.

¶46 While the court in Michaels noted that videotaping the initial interview is “a matter of sound interviewing methodology,” Michaels, 642 A.2d at 1379 n. 1, nothing in Michaels suggests that the failure to record interviews with child victims is a denial of a defendant’s right to due process as a matter of law. On the contrary, failing to videotape or otherwise document the initial interview is just one of the factors that the court in Michaels looked at to determine the reliability and thus the admissibility of the child victim’s statements. Michaels, 642 A.2d at 1382-83.

¶47 We, too, recognize the potential for coercive or highly suggestive interrogation techniques to create a significant risk that the interrogation itself will distort a child’s recollection of events. However, we do not find that to be the case here. Unlike the children in Michaels, who were all between three and five years old at the time they were interviewed, the boys in the present case were all over 14 years old when they were interviewed by Detective Lamb.

¶48 Furthermore, the only evidence to indicate the possibility that the interviews in this case may have been coercive or suggestive is the testimony at trial of T.C. and T.C.’s mother that T.C. felt bullied by Detective Lamb and of KL.’s mother that Detective Lamb started “firing questions” at her making their conversation “not particularly” pleasant. Weaver was not convicted of the charges involving T.C. and no charges were ever filed involving K.L. There is no evidence that the interviews of the two boys that Weaver was convicted of assaulting, J.M. and D.M., were improper in any way.

¶49 We rejected some of these same arguments in State v. Hanson (1997), 283 Mont. 316, 940 P.2d 1166, wherein the defendant raised a similar question of the reliability of the child victim’s statements based on coercive or suggestive interviewing techniques. We noted that the failure of Detective Lamb, the investigating officer in Hanson as well as in the present case, to preserve the record of her interview with the victim and the effect of her interview techniques on the reliability of the victim’s testimony were raised by Hanson’s defense counsel during trial and were properly considered by the jury. In a similar fashion, these same matters were considered by Weaver’s jury since Weaver examined Detective Lamb and each victim about the initial interviews.

¶50 Weaver suggests that we should adopt a per se rule that, absent exigent circumstances, child testimony may not be used in a prosecution such as his unless contemporaneous records of the interview are made. Weaver has not cited to any decision or authority for such a rule. In fact, Michaels, which Weaver relies on for most of his contentions, specifically states that “children, as a class, are not to be viewed as inherently suspect witnesses. ... [Ujnder certain circumstances children’s accounts of sexual abuse can be highly reliable.” Michaels, 642 A.2d at 1376.

¶51 While we decline to adopt a per se rule that the interviews of child sexual abuse victims must be recorded, we recognize that the better practice may be to create some record of the interviews. In State v. Grey (1995), 274 Mont. 206, 214, 907 P.2d 951, 956, we held that

in the context of a custodial interrogation conducted at the station house or under other similarly controlled circumstances, the failure of the police officer to preserve some tangible record of his or her giving of the Miranda warning and the knowing, intelligent waiver by the detainee will be viewed with distrust in the judicial assessment of voluntariness under the totality of circumstances surrounding the confession or admission. That is all the more so where the evidence demonstrates that, as here, the police officer made a conscious decision not to secure a written waiver or otherwise preserve his giving of the Miranda warning and the detainee’s waiver on the premise that to do so would alert the accused to exercise his rights and, thus, jeopardize the interrogation.

¶52 We specifically did not hold in Grey that the police must tape record or create an audio-visual record of Miranda warnings or the detainee’s waiver of his rights. We did conclude, however, that this may be the better practice and would help assure that the accused receives a constitutionally adequate Miranda warning.

¶53 In the same way, the failure of the investigating officer in child sexual abuse cases to preserve some tangible record of the interview, in a controlled situation and absent exigent circumstances, will be viewed with distrust in the judicial assessment of the veracity of the child victims’ statements. This is all the more so where the evidence demonstrates that, as in the case before us, the investigating officer made a conscious decision not to videotape or audiotape the interviews or to preserve any other kind of record of the interviews.

¶54 Nevertheless, we agree with the District Court in this case that Detective Lamb’s failure to record the interviews did not constitute destruction of material exculpatory evidence. It is well settled that

while a criminal defendant has a constitutional right to obtain exculpatory evidence and that the denial of such right is a violation of due process, this right is only a personal right to obtain exculpatory evidence. It does not require that the police officers take initiative or even assist in procuring evidence on behalf of a defendant.

State v. Patton (1996), 280 Mont. 278, 284, 930 P.2d 635, 638 (citing State v. Swanson (1986), 222 Mont. 357, 361-62, 722 P.2d 1155, 1157-58; In re Martin (Cal. 1962), 374 P.2d 801, 803). Furthermore,

[0]nly a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process. To amount to a violation of due process, negligently suppressed evidence must be material and of substantial use, vital to the defense, and exculpatory.

Patton, 280 Mont. at 285, 930 P.2d at 639 (citing State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 547; State, City of Bozeman v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105). There has been no indication in the present case that, had the interviews been recorded in some way, that evidence would have cleared Weaver of the charges against him.

¶55 Accordingly, we hold that the District Court did not err in denying Weaver’s motion to dismiss based upon the investigating officer’s failure to record her interviews with the victims.

¶56 Affirmed in part, reversed in part and remanded for a new trial.

JUSTICES REGNIER, HUNT and LEAPHART concur.

JUSTICE TRIEWEILER did not participate in this decision.

DISTRICT JUDGE MCKEON

specially concurs.

¶57 I agree with the decision reached in the majority opinion. However, this opinion does not fully state my views on the use of the common law plain error review in reaching this decision. For this reason, I issue this concurring opinion.

¶58 The majority opinion fails to point out that common law plain error review involves an analysis of whether or not the alleged error was harmless. In criminal cases, this analysis places the burden on the State to show plain error found on review to be harmless beyond a reasonable doubt.

¶59 Although not clearly stated, it is my feeling that analysis for harmless error played a significant part in applying the common law plain error review to this case. The “either/or” rule and model jury instructions found in the majority opinion are from People v. Gordon (1985), 165 Cal.App.3d 839, 212 Cal.Rptr. 174. After finding error, one must note that the Gordon court proceeded to analyze whether the error was harmless beyond a reasonable doubt. Gordon, 165 Cal.App.3d at 855,212 Cal.Rptr. at 185. Further, this Court itself, in a prior criminal case applying plain error review, stated clearly what is missing here; i.e., the error was not harmless beyond a reasonable doubt. State v. Sullivan (1996), 280 Mont. 25, 35, 927 P.2d 1033, 1039.

¶60 The significance of involving questions of harmless error into this analytical process is more clearly pointed out in Gordon. In Gordon, the court pointed out that there was presented more than one explanation to the two distinct and different acts of alleged molestation. The test applied for harmless error was “whether the case is one in which the jury’s verdict necessarily implies that it did not believe the only defense offered.” Gordon, 165 Cal.App.3d at 855, 212 Cal.Rptr. at 185. The court then concluded that because “the jury could have accepted one of the defenses and not another... there is no basis in reason for the inference that the jury must have believed beyond a reasonable doubt” that the defendant committed both acts of molestation. Gordon, 165 Cal.App.3d at 856, 212 Cal.Rptr. at 186.

¶61 In this case, Weaver presented more than one explanation as a defense to the charges against him. As such, the State was unable to prevail using the “only defense” argument found in Gordon. Yet, the point of Gordon is that there may be circumstances where the State is able to show beyond a reasonable doubt that error triggering common law plain error review is harmless. Those circumstances do not exist in this case.

¶62 An understanding of the circumstances of each case is not only pertinent to a review for harmless error but is also needed to address the Court’s admonition that a common law plain error review without contemporaneous objection be used “sparingly”. Parties on appeal seeking plain error review or responding to such efforts should make every effort to understand why contemporaneous objection was not made. It is possible that under the circumstances of the case, a tactical decision was knowingly made by a party not to make contemporaneous objection. In such event, it might be implied that the party believed the error to be harmless. Again, the burden is on the State to show the error to be harmless beyond a reasonable doubt and based on the record in this case it was unable to do so.

JUSTICE GRAY

concurs and dissents.

¶63 I concur in the Court’s opinion on issue two, which relates to the District Court’s denial of Weaver’s motion to dismiss. I respectfully dissent from that opinion on issue one and, because I would not reverse and remand for a new trial on that issue, I would reach the merits of issue three and affirm the District Court’s evidentiary rulings regarding the testimony of Shawn Trontel and Judy Starr.

¶64 It is my view that the Court errs in reaching the merits of issue one, which is whether the District Court erred in failing to more specifically instruct the jury. The basis of my dissent on this issue was set forth in my special concurring opinion in Finley and need not be repeated at length here. Suffice it to say that the Court oversteps its bounds under the separation of powers on which our three-branch government rests when it continues to ignore § 46-20-701, MCA, a statute duly enacted by the Montana Legislature. Absent a successful constitutional challenge to that statute, it is our duty to apply the statute according to its terms. Doing so here mandates that we decline to address the first issue because no contemporaneous objection was made in the District Court and, under § 46-20-701, MCA, the objection is waived unless it meets one of the exceptions set forth in subsection (2) of the statute. As the Court correctly states, Weaver’s claim unquestionably does not fall within any of the narrow statutory exceptions. That should be the end of our inquiry, yet the Court goes on to apply the “common law plain error doctrine.”

¶65 It is disingenuous for the Court to reiterate that “[w]e have consistently held that we will not consider issues raised for the first time on appeal when the appellant had the opportunity to make an objection,” and then go on to apply a common law doctrine which is in derogation of a duly enacted statute and which allows it to “opt out” of both purportedly consistent holdings and its obligation to apply statutes passed by the Legislature. Unfortunately, the Court’s continued willingness to do so effectively precludes, as a practical matter, a constitutional challenge to § 46-20-701, MCA. No lawyer would bother to advance such a challenge for the Court’s consideration when it is clear that the statutory hurdle need not be overcome.

¶66 I would apply our “consistent” holdings and refuse to consider issue one. Weaver had an opportunity to make an objection about the jury instructions at trial and failed to do so. Nor does his failure to object fall within one of the statutory exceptions to the rule that alleged error not objected to cannot be noticed on appeal. Under such circumstances, our obligation is clear and I dissent from the Court’s refusal to discharge that obligation.

CHIEF JUSTICE TURNAGE concurs in the foregoing concurrence and dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIFFANY TYAN BERGER, Defendant and Appellant.
    No. 97-074.
    Submitted on Briefs March 26, 1998.
    Decided July 14, 1998.
    1998 MT 170.
    55 St.Rep. 686.
    290 Mont. 78.
    964 P.2d 725.

      For Appellant: John H. Gilliam; Skjelset & Gilliam, RL.L.R; Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General; Helena; George H. Com, Ravalli County Attorney; Hamilton.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶ 1 The defendant, Tiffany Berger, was charged by information filed in the District Court for the Twenty-First Judicial District in Ravalli County with criminal sale of dangerous drugs, a felony, in violation of § 45-9-101, MCA. Following a jury trial, Berger was convicted of the crime with which she was charged; she moved for a new trial; and then later moved to amend her motion based upon newly discovered evidence. The District Court denied Berger’s motion to amend her motion for a new trial, and denied Berger’s motion for a new trial. Berger appeals from the orders and judgment of the District Court. We affirm the District Court.

¶2 The issues on appeal are:

¶3 1. Did the District Court err when it found that there was sufficient evidence to corroborate the accomplice testimony?

¶4 2. Did the District Court err when it allowed the State to introduce evidence of Burger’s other acts?

¶5 3. Did the District Court err when it found that the State did not suppress exculpatory evidence?

¶6 4. Did the District Court err when it denied Berger’s motion for leave to file an amended motion for a new trial?

FACTUAL BACKGROUND

¶7 In September 1994, Emily Davenport, a student at Stevensville High School, reported that on September 15,1994, a fellow student, Russell Moody, approached her and asked her if she was interested in purchasing illegal drugs. Davenport expressed interest and Moody arranged to get drugs for Davenport through Manuel Bean, a student whom he had known for about one year. Bean agreed to obtain any drugs Moody wanted in exchange for $20. Moody gave Bean $20 and Bean agreed to purchase methamphetamine for Moody, which he then intended to sell to Davenport.

¶8 Shortly after Bean’s conversation with Moody, Bean went with Jessica Agner to her home. They arrived at Agner’s home at approximately 4:00 p.m., at which time, according to Bean, Agner called an unidentified person’s pager. The person eventually called back. According to Bean, at some point during the evening, Agner’s boyfriend, Chris Joy, came to Agner’s house. Bean testified that no one else came to the house that evening with the exception of a locksmith who was there to work on Agner’s car. Bean admitted that he received a quarter gram of crystal methamphetamine from Agner in exchange for $25. According to Bean, he received the drugs in Agner’s living room sometime between 7:00 and 8:00 that evening. Bean testified that at no point during that evening was the defendant, Tiffany Berger, present at Agner’s house.

¶9 When a law enforcement officer interviewed Bean’s mother, Rosa Bean, she explained that she questioned her son about the source of the drugs at issue and he told her that the person who brought the drugs to Agner’s house was a “Tiffany” or a “Tina.” According to Mrs. Bean, her son explained to her that he, Agner, and the third person exchanged the drugs and money in Agner’s bathroom and admitted that he had used some of the drugs while the three of them were in the bathroom. Bean subsequently denied providing his mother with this information. Bean testified that on the day after the drug purchase he took the drugs to school and gave them to Moody.

¶10 At the time the drug transaction occurred, Jessica Agner was sixteen years old, resided with her mother, and was a junior at Stevensville High School. Agner testified that on or about September 19,1994, Bean came home with her after school. After arriving at her house, Bean told Agner that he wanted to buy some “speed” and asked Agner if she knew anyone who could get it for him. Agner testified that she made some phone calls and eventually called Tiffany Berger’s pager number. According to Agner, Berger called back and agreed to supply the “speed” and bring it to Agner’s house later that evening.

¶11 In the meantime, Chris Joy, Agner’s boyfriend, arrived at Agner’s house. According to Joy, when he arrived at Agner’s house, Agner and Bean were waiting for Berger to arrive. Agner mentioned to Joy that they were waiting for Berger to bring some kind of drugs. Joy testified that later that evening Berger arrived at Agner’s house in a small, maroon, four-door car with a broken windshield, that sounded like it had no muffler. He reported that Berger arrived with two males who were approximately eighteen years old. Joy watched as Berger, Bean, and Agner went into the bathroom, where he estimated they stayed for about twenty minutes. Joy visited with the two males who had arrived with Berger until Berger emerged from the bathroom. According to Joy, Berger and the two males visited for a few minutes and then left. Shortly after Berger’s departure, at approximately 11:00 p.m., Joy gave Bean a ride home.

¶12 Agner testified that Berger arrived at her house, after Joy’s arrival, at around 10:00 p.m. and was driving a smalTpassenger car with out-of-state license plates and a loud muffler. Agner also testified that Berger was accompanied by two males. Agner further reported that after she and Berger visited for a few minutes, the two of them, along with Bean, went into the bathroom. While in the bathroom, Agner gave Berger the money, which Bean had provided, in exchange for a plastic ziplock baggie of “speed.” According to Agner, all three of them snorted some of the “speed” before leaving the bathroom. Agner estimated that the three of them were in the bathroom for approximately ten minutes before Berger left with the two males.

¶13 At trial, Agner admitted that she had told her mother, Berger’s father, Berger’s attorney, and the investigating officer that Berger did not supply the drugs and that she did not know where the drugs came from. At the time she made those statements, she was living at Berger’s house. Agner testified, however, that Berger did supply the drugs and explained that she had stated otherwise in an attempt to keep Berger out of trouble and to preserve their friendship.

¶ 14 Berger did not testify at trial, but prior to trial she gave a statement to a detective with the Ravalli County Sheriff’s office in which she admitted going to Agner’s house on the night in question. Berger explained that Agner called her pager earlier in the evening, and that at about 11:00 p.m., she went to Agner’s house with two male friends whom she identified as “Chris” and “Kelly.” Berger recalled that Joy and Bean were at Agner’s house. She verified that she was in the bathroom with Agner and Bean and that she snorted some methamphetamine with them. Berger offered no explanation for going to Agner’s house late in the evening other than to visit Agner. Berger denied selling Agner or Bean drugs.

¶15 Russell Moody acknowledged that he had received a ziplock baggie of drugs from Bean on the day following the drug transaction at Agner’s home. After school, Moody called Emily Davenport who instructed him to bring the drugs to her house. Moody took the drugs to Davenport, and she gave Moody $40. Five days later, Davenport orally ingested some of the methamphetamine and became ill. She was transported to the hospital by ambulance where her blood test revealed evidence of methamphetamine.

¶16 On September 28, 1994, a detective with the Ravalli County Sheriff’s office began investigating the illegal drug transaction which culminated in Davenport’s hospitalization. The investigation began with Davenport who reported that she received the drugs from Moody. From Moody the detective learned that the drugs came from Bean. From Bean, the investigation proceeded to Agner’s house. Both Agner and Joy ultimately reported that Berger supplied the drugs in exchange for money.

¶17 Asa result of the investigation, Moody pled guilty to the felony offenses of possession of dangerous drugs, sale of dangerous drugs, and criminal endangerment. Agner pled guilty to the offense of conspiracy to sell dangerous drugs. Berger was charged with the sale of dangerous drugs.

¶18 In late October 1995, Berger’s father told her attorney that Robert Rodriguez had called him and vaguely reported having some information about Berger and Agner. Berger’s attorney set up an appointment with Rodriguez, which Rodriguez did not attend. On November 7,1995, Berger’s father called her attorney and stated that he had again talked to Rodriguez. Rodriguez had reported to him that he had conversed with Detective Alvin J. Bailey, Jr., and an ATF agent about Berger’s case.

¶ 19 Berger’s attorney met with Bailey and the prosecuting attorney on November 8,1995, approximately one week before Berger’s trial. At the meeting Bailey verified that he had contact with Rodriguez, however, he explained that it had nothing to do with Berger’s case. After the meeting, Berger’s attorney again unsuccessfully attempted to contact Rodriguez.

¶20 At trial, following presentation of the State’s evidence, Berger moved the District Court to dismiss the case based on lack of sufficient evidence to corroborate accomplice testimony. The District Court denied this motion and found that Berger’s statement to the police and Chris Joy’s testimony showed “more than mere suspicion” that Berger did, in fact, commit this crime. Berger was convicted of the crime with which she was charged. Following her conviction, she moved for a new trial.

¶21 Berger’s attorney finally met with Rodriguez on December 22, 1995, over one month after Berger’s trial. Rodriguez reported that Agner had told him that Berger was innocent and that he had relayed that information to Bailey. He also provided information about other criminal charges pending against Berger in Missoula for crimes which he believed Berger was wrongly accused. Based on this information, Berger’s attorney moved to amend her motion for a new trial based on newly discovered evidence.

¶22 The District Court, after listening to testimony from Rodriguez, Bailey, and other law enforcement people who had been involved, and balancing the credibility of Rodriguez against the credibility of the others, stated:

This Court has noted numerous instances in which Mr. Rodriguez has provided testimony contradicted in both significant and insignificant aspects by other independent evidence and by far more credible witnesses. Mr. Rodriguez’s own testimony has been internally inconsistent and at variance in key details from that of defense counsel.

The District Court rejected Berger’s theory that Bailey was part of a “pattern of deceit” to sidetrack Berger’s discovery of the information Rodriguez had to offer. It concluded that if any person had attempted to deceive, it was Rodriguez, and denied Berger’s motion to amend.

ISSUE 1

¶23 Did the District Court err when it found that there was sufficient evidence to corroborate the accomplice testimony?

¶24 After the State presented its evidence, Berger orally moved the District Court for a directed verdict. She claimed that Agner’s testimony was the only proof presented by the State, and that because Agner was an accomplice to the crime, the State had to present independent evidence to corroborate Agner’s testimony, which it had failed to do. The District Court denied Berger’s motion based upon the corroborating effect of Joy’s testimony and Berger’s own statement.

¶25 We review the denial of a motion for directed verdict in the same manner that we review the sufficiency of evidence to support a conviction. See State v. Bower (1992), 254 Mont. 1, 833 P.2d 1106. We examine “whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562. The decision to direct a verdict at the close of the State’s case lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. See State v. Moore (1994), 268 Mont. 20, 64, 885 P.2d 457, 484, overruled on other grounds by State v. Gollehon (1995), 274 Mont. 116, 121, 906 P.2d 697, 701.

¶26 Section 46-16-213, MCA, requires that an accomplice’s testimony be corroborated “by other evidence that in itself and without the aid of [such] testimony... tends to connect the defendant with the commission of the offense.” According to Berger, the corroborating evidence provided by the State to support the accomplice testimony of Agner and Bean was insufficient to support Berger’s conviction. We disagree.

¶27 Based upon our application of § 46-16-213, MCA, this Court has established certain guidelines for testing the sufficiency of corroborating evidence. We have held:

To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant’s conviction or even to make out a Prima facie case against him. Corroborating evidence may be circumstantial and can come from the defendant or his witnesses.

State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99 (emphasis added) (citations omitted).

¶28 ' Corroborating testimony is viewed in a light most favorable to the State. See State v. Conrad (1990), 241 Mont. 1, 4-5, 785 P.2d 185, 187. The corroborating evidence need only tend to connect the defendant with the crime charged and need not extend to every fact to which the accomplice testifies. See State v. Ungaretti (1989), 239 Mont. 314, 318, 779 P.2d 923, 925. Thus, corroborating evidence is not insufficient merely because it is circumstantial, disputed, or possibly consistent with innocent conduct; it is the jury’s duty to resolve such factual questions. See State v. Kaczmarek (1990), 243 Mont. 456, 460, 795 P.2d 439, 442. To be sufficient, however, corroborating evidence must show more than an opportunity to commit the crime, or a mere suspicion that the defendant committed the crime. See State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. The evidence must satisfy a three part test: “Corroborative evidence must clearly (1) be independent, (2) point toward the defendant’s guilt, and (3) provide a legally sufficient connection between the defendant and the offense.” State v. Paulson (1991), 250 Mont. 32, 46, 817 P.2d 1137, 1145-46.

¶29 In this case, there was sufficient evidence to corroborate Agner’s testimony. The chain of events that led to Berger’s involvement in the drug transaction was clear. Davenport and Moody agreed to complete a drug transaction. Moody then requested Bean’s assistance in order to procure the drugs. Bean then approached Agner and asked that she contact a supplier of the drugs. It is clear from Agner and Bean’s testimony that they went to Agner’s house where Agner left a message on someone’s pager. Berger’s own statement that she was paged by Agner that evening corroborates Agner and Bean’s testimony.

¶30 Had Agner made the drugs available prior to Berger’s arrival, there would have been no need for Bean to stay at Agner’s house from 4:00 p.m. until 11:00 p.m. If Agner was the actual supplier of the drugs, she and Bean could have completed the drug transaction hours earlier without having to contact or wait for Berger. The fact that Berger did not appear at Agner’s house until approximately 10:00 p.m. or later is the most reasonable explanation for Bean’s lengthy visit.

¶31 Further, even though Bean denies seeing Berger at Agner’s house, Bean’s mother testified that Bean told her that a girl by the name of Tiffany or Tina responded to a pager call from Agner and provided them with the drugs. More importantly, Berger herself admitted she was at Agner’s house that night. Berger even admitted that she was in the bathroom with Bean and Agner, and recalled that Bean and Agner got into a disagreement about the amount of money to be given in exchange for the drugs. All of this information was further corroborated by Chris Joy, who had no involvement in the drug transaction. The testimony of Agner, Joy, and Berger is all consistent except that Berger denies actually selling the drugs.

¶32 There is no question that the drugs went from Agner’s bathroom to Bean, who then delivered them to Moody, who delivered them to Davenport who ingested the drugs and tested positive for having drugs in her system. Joy testified that his understanding of why Bean was at Agner’s house was to wait for the arrival of Berger. The testimony clearly indicates that Agner and Bean alone could not have completed the drug transaction, and that Berger was the essential link and source of the drugs. The evidence provided by Joy, Berger, Bean, Moody, Davenport, and Mrs. Bean is corroborative and points toward Berger’s guilt.

¶33 The evidence provided by Berger and the other witnesses may not be sufficient, by itself, to support Berger’s conviction; however, when viewed in a light most favorable to the State, it clearly connects Berger to the commission of this crime and raises more than a suspicion of Berger’s involvement in the sale of the drugs. Any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

¶34 Accordingly, we conclude that the District Court did not abuse its discretion when it found, at the close of the State’s case, evidence that would support Berger’s guilt. Therefore, the District Court did not err when it denied Berger’s motion for a directed verdict.

ISSUE 2

¶35 Did the District Court err when it allowed the State to introduce evidence of Berger’s other acts?

¶36 During cross-examination of Agner, Berger’s attorney asked Agner a series of questions that were, intended, according to Berger’s attorney, to be “questions about prejudice having to do with background, affinity.” She was questioned about where she had lived in the past, whether she had lived in Seattle and Missoula prior to the drug transaction at issue, whether she had ever obtained methamphetamine in Washington, whether she had stolen a car, whether there were any pending criminal charges against her, whether she used drugs on the night in question, and whether she had ever been convicted of other crimes. The State, on the other hand, contended that the intent of the questioning was to imply that Agner was the actual source of the drugs and to imply that she is a “sort of skip-around who goes hither and yon and chases drugs,” and is “just this little bit of trash that floats around the surface of the drug culture.” The State argued that it should be entitled to rebut any inferences that the defense conveyed on cross-examination, and particularly the reason for Agner’s frequent moves. According to the State, one of the reasons Agner moved from the Stevensville area was that she had been threatened and severely beaten by Berger sometime after the drug transaction at Agner’s house, and was afraid of Berger and her family.

¶3 7 The District Court concluded that the assault by Berger was not a prior bad act but a subsequent act which was intended to influence a prosecution witness and which could demonstrate Berger’s consciousness of her guilt. The District Court allowed the State to question Agner about why she moved and why she was fearful of Berger and her family.

¶38 On appeal, Berger contends that the District Court abused its discretion when it allowed the State to question Agner about her frequent moves, even though Berger introduced the issue on cross-examination. Berger characterizes the response elicited by the State’s question on re-direct as improper character evidence in violation of Rule 404(b), M.R.Evid., because it revealed Berger’s assault of Agner. Rule 404(b), M.R.Evid., provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶39 We have held that the district court has broad discretion to determine whether evidence is relevant and admissible. See State v. Oatman (1996), 275 Mont. 139, 143, 911 P.2d 213, 216. Anitem of evidence is relevant if it will have any value, as determined by logic and experience, in proving the proposition for which it is offered. See Oatman, 275 Mont. at 143-44, 911 P.2d at 216. We review a district court’s evidentiary ruling to determine whether the district court has abused its discretion. See Oatman, 275 Mont. at 144, 911 P.2d at 216. Even if evidence is improperly admitted, we will not reverse the district court unless the evidence admitted prejudiced the defendant. See State v. Gray (1983), 202 Mont. 445, 449, 659 P.2d 255, 257. In order for inadmissible evidence to be prejudicial, there must be a reasonable possibility that the evidence might have contributed to the conviction. See Gray, 202 Mont. at 449-50, 659 P.2d at 257.

¶40 We conclude that the District Court did not abuse its discretion when it allowed the State to question Agner during re-direct examination about her reason for moving from Stevensville.

¶41 We recognize the rule that when one party cross-examines a witness regarding an event, the witness may be re-examined for the purpose of elaborating on the event in order to explain the part already in evidence. See Croft v. Thurston (1929), 84 Mont. 510, 515, 276 P. 950, 952. In this case, the District Court did not err when it gave the State an opportunity to give a complete impression about why Agner moved from town to town. The jury is entitled to a complete explanation, even if that explanation reflected poorly upon Berger.

¶42 The facts of this case are analogous to the facts of State v. Crockett (1966), 148 Mont. 402, 421 P.2d 722. In Crockett, the appellant cross-examined a witness about time she spent in jail for a prostitution charge in an attempt to show that police coercion was the reason for her testimony. The district court held that by inquiring on cross-examination about the witness’s incarceration, the appellant opened the door for the State to explain her testimony during re-direct examination. See Crockett, 148 Mont. at 409, 421 P.2d at 726. During re-direct examination, the witness explained that although her jail sentence had expired, she remained in jail for an additional month for her own protection from the appellant. See Crockett, 148 Mont. at 409, 421 P.2d at 726. We held that the re-direct examination addressed evidence elicited on cross-examination, and was, therefore, permissible examination. See Crockett, 148 Mont. at 409, 421 P.2d at 726. Similarly, our decision in State v. Board (1959), 135 Mont. 139, 145, 337 P.2d 924, 928, reflects the policy that “[a party] may not parry with sharpened blade in cross and expect only a sheathed blade in return.” The district court makes the final determination of how much evidence is permissible to explain answers during cross-examination.

¶43 The District Court properly admonished the jury prior to re-direct that Agner’s testimony should be received only to help explain her testimony on cross-examination and not to show Berger’s character. We conclude that the District Court did not abuse its discretion when it allowed Agner to explain that one of the reasons she moved was because of threats and an assault by Berger.

ISSUE 3

¶44 Did the District Court err when it found that the State did not suppress exculpatory evidence?

¶45 The standard of review of a district court’s findings of fact is whether they are clearly erroneous. See Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904 (citing Columbia Grain Int’l v. Cereck (1993), 258 Mont. 414, 417, 852 P.2d 676, 678). We have adopted a three part test in Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287, to determine whether a district court’s findings are clearly erroneous. The test provides that: (1) The Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the trial court has misapprehended the evidence; (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find “[a] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” (Citing United States v. United States Gypsum Co. (1948), 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746). See DeSaye, 250 Mont. at 323, 820 P.2d at 1287; see also Daines, 269 Mont. at 325, 888 P.2d at 906.

¶46 Berger claims that the State, through Bailey, suppressed exculpatory evidence by failing to disclose statements made by confidential informant Rodriguez about Agner’s admissions relating to Berger’s innocence. Berger alleges that she did not more aggressively pursue a pre-trial meeting with Rodriguez because of an unrecorded meeting between her attorney, the prosecuting attorney, and Bailey during which, Berger claims, Bailey intentionally suppressed certain information about a conversation between Rodriguez and Bailey in the Ravalli County Sheriff’s office on November 6,1995, in the presence of ATF agent John Kamora. Berger alleges that during the sheriff’s office conversation, Rodriguez specifically informed Bailey that (1) Agner had actually given him a statement that Berger did not sell the drugs to her or Bean, and (2) he did not believe Berger was the kind of person to use or sell drugs, but he did think Agner was likely to use and sell drugs. Bailey denies that Rodriguez made any such statements and Agent Kamora, who was present the entire time Bailey and Rodriguez conversed, cannot recall any such statements. All parties to the meeting, however, acknowledge that Berger’s name was mentioned in connection with another drug case pending in Missoula County. Berger contends that her conviction should be overturned because Bailey’s and Kamora’s responses constitute suppression of exculpatory evidence.

¶47 Rodriguez maintains that he discussed his conversation with Bailey with Kamora on the ride back to Missoula from the Ravalli County Sheriff’s office. Kamora testified that no such discussion occurred. Rodriguez further claims to have shared his feelings about the sheriff’s office meeting with Officer Ken Poteet and Agent Jeff Groeh. Both denied ever having such a conversation with Rodriguez. Because of previous inconsistencies in Rodriguez’s own testimony, the District Court found Bailey, Kamora, Poteet, and Groeh more credible than the testimony provided by Rodriguez and, therefore, concluded that there was no suppression of evidence by the State because there was no proof that material evidence came out in the sheriff’s office meeting.

¶48 We have held that an intentional or deliberate suppression of evidence is a per se violation of due process sufficient to reverse or nullify a conviction. See State v. Patterson (1983), 203 Mont. 509, 512, 662 P.2d 291, 293. Likewise, even the negligent suppression of evidence could constitute constitutional error. See State v. Wallace (1986), 223 Mont. 454, 458, 727 P.2d 520, 523.

¶49 The Supreme Court’s decision in Brady v. Maryland (1963), 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215, established the constitutional rule that “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S. Ct. at 1196, 10 L. Ed. 2d at 218. In order to mandate a reversal of a defendant’s conviction, “the Brady violation must relate to material information.” Lester Kills on Top v. State (1995), 273 Mont. 32, 42, 901 P.2d 1368,1374, cert. denied, (1996), 516 U.S. 1177, 116 S. Ct. 1273, 134 L. Ed. 2d 220. To satisfy the materiality requirement the defendant must prove “that there is a reasonable probability that had the information been provided, the result would have been different or stated another way, is it a ‘verdict worthy of confidence’?” Kills on Top, 273 Mont. at 42, 901 P.2d at 1374, (citing Kyles v. Whitley (1995), 514 U.S. 419, 434, 115 S. Ct. 1555, 1566, 131 L. Ed. 2d 490). “A‘reasonable probability’ of a different result is accordingly shown when the Government’s evidentiary suppression ‘undermines confidence in the outcome of trial.’ ”Kyles, 514 U.S. at 434, 115 S. Ct. at 1556, 131 L. Ed. 2d at 506 (quoting Unites States v. Bagley (1985), 473 U.S. 667, 678, 105 S. Ct. 3375, 3381, 87 L. Ed. 2d 481, 491).

¶50 Berger has acknowledged that her attorney was aware of the existence and identity of Rodriguez prior to the trial, and further that Rodriguez wished to speak to Berger’s attorney because he may have had significant information bearing on her defense. In fact, Berger’s attorney had set up an office interview with Rodriguez several days prior to trial that did not occur due to Rodriguez’s failure to appear. The District Court found that because Berger was well aware that Rodriguez claimed to have information pertinent to the defense, and because Berger and Rodriguez had repeated contact prior to the date of trial, there was no showing of wrong doing by law enforcement. The District Court further found that there was no substantial credible evidence that would suggest that Bailey, or any other law enforcement officer, engaged in the concealment of Rodriguez from Berger or suppressed potentially exculpatory testimony Rodriguez may have had to offer.

¶51 We conclude that, based on the testimony of Bailey and the other officers, the District Court’s finding that the State did not suppress exculpatory evidence is supported by substantial evidence and is not clearly erroneous.

ISSUE 4

¶52 Did the District Court err when it denied Berger’s motion for leave to file an amended motion for a new trial?

¶53 The standard of review of a district court order granting or denying a new trial based on newly discovered evidence is abuse of discretion. See State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 346, 351. In Lewis, we held that “the matter of granting or refusing a new trial for newly discovered evidence rests largely in the discretion of the District Court.” Lewis, 177 Mont. at 483, 582 P.2d at 351 (citing Butler v. Paradise Valley Irrigation Dist. (1945), 117 Mont. 563, 160 P.2d 481). “[Applications for new trials are not favored when a defendant has had ample opportunity to present his case.” State v. Lamping (1988), 231 Mont. 288, 290, 752 P.2d 742, 744.

¶54 Berger alleges that she was unable to discover exculpatory evidence because the State affirmatively suppressed it. The District Court held a hearing in order to determine whether this was true. The District Court concluded that “the alleged suppression of facts by Det. Bailey to defense counsel only gains credence if it is possible to conclude that there was something said in the sheriff’s office meeting to be suppressed, and the Court cannot find that this is so,” and, therefore, denied Berger’s late amendment of her motion for a new trial. For the reasons discussed above, we conclude that the District Court’s finding regarding the alleged suppression of evidence is not clearly erroneous.

¶55 The District Court also found:

It was also apparent from the evidence that defense counsel was well aware that Mr. Rodri[g]uez claimed to have information pertinent to the defense, that defense counsel possessed a pager number for Mr. Rodri[g]uez, and that Mr. Rodri[g]uez was in contact with defense counsel’s office and the Defendant[’]s father repeatedly prior to the date of trial.

We conclude that that finding was also supported by substantial evidence and was not clearly erroneous. Therefore, even if the District Court had allowed Berger to amend her motion, she would not have been entitled to a new trial.

¶56 We have consistently applied the criteria set forth in State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055, when addressing a motion for a new trial based upon newly discovered evidence. In Greeno, we established six criteria which must be met to warrant a new trial based on newly discovered evidence: (1) the evidence must have come to the knowledge of the defendant since the trial; (2) it was not through want of diligence that the evidence was not discovered earlier; (3) the evidence is so material that it would probably produce a different result upon another trial; (4) the evidence is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) the motion must be supported by the affidavit of the witnesses whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) the evidence must not be such as will only tend to impeach the character or credibility of a witness. See Greeno, 135 Mont. at 586, 342 P.2d at 1055. The Greeno criteria are stated in the conjunctive; thus, each must be established before a defendant is entitled to a new trial on the basis of newly discovered evidence. See State v. Fina (1995), 273 Mont. 171, 177, 902 P.2d 30, 34.

¶57 In this case, as noted, there is no reason Rodriguez’s testimony could not have been discovered by Berger prior to trial. She was a frequent acquaintance of his and her attorney had been advised of the nature of what he had to say.

¶58 Accordingly, we conclude that even if Berger had been allowed to amend her motion on the basis of newly discovered evidence, she could not have satisfied all six Greeno factors. Therefore, the District Court did not abuse its discretion when it denied Berger’s motion to amend her motion for a new trial. We affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and LEAPHART concur.