author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES CHARLES OLIVIERI, Defendant and Appellant.
    No. 90-125.
    Submitted on Briefs Aug. 16, 1990.
    Decided Sept. 6, 1990.
    797 P.2d 937.
    John Keith, Great Falls, for defendant and appellant.

      Marc Racicot, Atty. Gen., Helena, James Yellowtail, Asst. Atty. Gen., Helena, Stephen E. Hagerman, Deputy County Atty., Great Falls, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

James Charles Olivieri appeals his felony conviction of deliberate homicide, following a jury trial in the Eighth Judicial District, Cascade County. We affirm.

Olivieri raises the following issue:

Did the District Court properly refuse to instruct the jury on the lesser included offense of criminal endangerment, or in the alternative, mitigated deliberate homicide?

During the early morning hours of January 14, 1988, James Charles Olivieri and his life-long friend, Dominic Puliafico, were driving by the Office Club in Great Falls, Montana, when they spotted and picked up a hitchhiker, Ethel Woods. Twenty-one-year-old Ethel was a deaf-mute, who communicated with the two men by writing notes. Shortly after discovering her handicap, Puliafico, indicated to Olivieri that, “this would be perfect,” with regard to raping Ethel.

One of the notes Ethel wrote to Olivieri and Puliafico asked if the two men knew of any parties occurring that night. Olivieri and Puliafico responded affirmatively and drove Ethel to their apartment. Outside of the apartment, the three encountered two neighbors and Ray Canto, a friend of Olivieri and Puliafico who had been with the two men earlier in the evening. Following a brief discussion, Olivieri, Puliafico, Ethel and Canto entered the apartment.

Shortly after entering the apartment, Olivieri began writing suggestive notes to Ethel, asking her to engage in sexual intercourse. Ethel refused. Puliafico then choked Ethel until she was unconscious. Puliafico and Olivieri proceeded to remove Ethel’s clothes. At this point, after Olivieri warned Canto that the upcoming events were going to get serious, Canto chose to leave the apartment.

Puliafico then proceeded to rape and beat Ethel as she slipped in and out of consciousness. Olivieri admitted to holding Ethel’s feet while Puliafico raped her, but denied raping or beating Ethel. Instead, Olivieri admitted that dining the time Puliafico raped and beat Ethel, he watched the two and laughed.

Thereafter, while the badly beaten Ethel was lying on the floor, Olivieri and Puliafico went into the kitchen and ate macaroni and cheese as they listened to what they believed were Ethel’s last breaths of life. Puliafico then raped Ethel for the second time. Following the second rape and to ensure that she was dead, Olivieri and Puliafico took turns striking Ethel on the back of her head with a baseball bat, both men striking her twice.

Olivieri and Puliafico then moved Ethel’s nude body into a bedroom. Later that same day, they wrapped Ethel’s body in a carpet they obtained from the basement of the apartment. They then weighted the carpet-wrapped body with a cinder block, which they purchased at a local store. That evening, they removed the carpet-wrapped body from the apartment and dumped it in the Missouri River, hoping that it would be destroyed by the two dams in that area. The carpet-wrapped body, however, was discovered nearly two months later on March 2, 1988. An autopsy revealed that Ethel died of blunt force trauma to her head. Additionally, the autopsy revealed that all of the blunt force trauma Ethel received was inflicted prior to her death.

On March 21, 1989, Olivieri, who had returned to his home state of Massachusetts within a few weeks following Ethel’s death, was extradited from Massachusetts to Montana. Puliafico, who had returned to Massachusetts a few months following Ethel’s death, was also extradited to Montana. The extradition warrant was based upon information provided by Olivieri’s brother, Fred, also of Massachusetts, who telephoned Cascade County officials after Olivieri and Puliafico had, on various occasions, bragged to him in detail about raping and killing a deaf-mute girl in Montana and dumping her body in the Missouri River. Additionally, Olivieri told Fred that it was every man’s fantasy to rape and kill a woman.

Olivieri and Puliafico were jointly charged with the offenses of deliberate homicide and obstructing justice. Both codefendants originally pled not guilty to the charges. On May 9, 1989, by an amended information, Puliafico was also charged with the offense of sexual intercourse without consent. On May 9, 1989, Puliafico executed a plea bargain agreement whereby he changed his not guilty plea to guilty to the charge of deliberate homicide and pled guilty to the charge of sexual intercourse without consent — in exchange, the State dropped the charge of obstructing justice. Puliafico was sentenced to 100 years of imprisonment for deliberate homicide and twenty-five years of imprisonment for sexual intercourse without consent, both sentences to run consecutively. Additionally, Puliafico was designated a dangerous offender for parole purposes.

Olivieri, however, maintained his not guilty pleas. His jury trial commenced on October 23,1989, in Cascade County. During his jury trial, Olivieri neither testified or called a single witness in his defense. The prosecution, however, read Olivieri’s legally obtained confession into the record, which was made to Cascade County officials on March 21, 1989.

The District Court instructed the jury on accountability and deliberate homicide, but refused Olivieri’s proposed jury instruction upon the lesser included offense of criminal endangerment, or in the alternative, mitigated deliberate homicide. The jury found Olivieri guilty of deliberate homicide and obstructing justice as charged. Olivieri was sentenced to 100 years of imprisonment for deliberate homicide and ten years of imprisonment for obstructing justice, both sentences to run consecutively. Olivieri received an additional ten years of imprisonment under the weapons enhancement statute, also to run consecutively with the above sentences, and was designated a dangerous offender for parole purposes.

The sole issue before this Court is whether the District Court properly refused to instruct the jury on the lesser included offense of criminal endangerment, or in the alternative, mitigated deliberate homicide. Olivieri argues that criminal endangerment and mitigated deliberate homicide are both lesser included offenses of deliberate homicide, and as such, Olivieri was entitled to a lesser included offense instruction. We disagree. Even if Olivieri is correct in asserting that criminal endangerment and mitigated homicide are lesser included offenses of deliberate homicide, evidence must be presented at trial to warrant an instruction on either offense. State v. Heit (Mont. 1990), [242 Mont. 488,] 791 P.2d 1379, 1382, 47 St.Rep. 919, 922. (Citations omitted.) Here, Olivieri presented no evidence at trial — he neither testified or called a single witness in his defense.

Moreover, the crime of criminal endangerment is a purposeful or knowing act which causes “a substantial risk of death or serious bodily injury” where deliberate homicide is a purposeful or knowing act which causes death. Sections 45-5-207(1), 45-5-102(l)(a), MCA. A court’s refusal to instruct on criminal endangerment is proper when a purposeful or knowing act causes death or when the failure to act results in accountability for deliberate homicide:

“Where ‘purposely or knowingly' causing a result is an element of an offense, that element can be established if the result involves the same kind of harm or injury as contemplated by the defendant, although the actual degree of injury is greater than intended. See Section 45-2-201(2)(b), MCA. Koepplin by his own admissions intended to slap the victim numerous times about the head. The result, death by brain damage, may not have been intended. However, the result that did occur is a more severe form of the same kind of injury that was intended — injury to the head area of the victim. In these instances our deliberate homicide statutes and case law state that the actor may be held accountable for the unintended death, if a causal relationship is established pursuant to section 45-2-201, MCA. ... a person cannot strike lethal blows and then avoid the consequences of his actions by saying he was surprised his victim dies or that he did not intend to kill her.”

State v. Koepplin (1984), 213 Mont. 55, 61-62, 689 P.2d 921, 924.

Regarding causal relationship, § 45-2-201(2), MCA, provides:

“If purposely or knowingly causing a result is an element of an offense and the result is not within the contemplation or purpose of the offender, either element can nevertheless be satisfied if:
“(a) ... or
“(b) the result involves the same kind of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way. ...”

Here, Olivieri admitted that he intentionally struck Ethel on the back of the head twice with a baseball bat. And, the pathologist who performed Ethel’s autopsy testified that Ethel’s death was caused by blunt force trauma to the head, and all such injuries were received prior to her death. Therefore, Olivieri’s conduct was a causal factor in Ethel Wood’s death, pursuant to § 45-2-201(2), MCA, and he is guilty of deliberate homicide.

Olivieri, however, argues that Puliafico alone killed Woods, and no evidence to the contrary was ever presented at his trial. Olivieri’s argument is without merit and his attempt to ignore both his own recorded admissions of striking Ethel with a baseball bat and the pathologist’s testimony in an effort to reduce his culpability in this brutal crime is of no avail. We hold that the District Court properly refused to instruct the jury on the lesser included offense of criminal endangerment.

Olivieri alternatively argues that he was entitled to have the jury instructed on the lesser included offense of mitigated deliberate homicide. Mitigated deliberate homicide is a lesser included offense of deliberate homicide only if the defendant presents evidence “that he acted under ‘extreme mental or emotional stress for which there is reasonable explanation or excuse.’” State v.Heit, 791 P.2d at 1382; Section 45-5-103, MCA. (Citations omitted.) Although Olivieri never testified or called a single witness in his defense, he argues that indications of extreme and emotional distress are evident in the record. We again disagree — the record is void of any mitigating factors before, during, or after Ethel’s brutal rape and murder. During the time Puliafico raped and beat Ethel, Olivieri admitted that he watched the happenings and laughed. While Ethel laid on the floor unconscious, Olivieri joined Puliafico in the kitchen and proceeded to eat macaroni and cheese. Following the second time Puliafico raped Ethel, Olivieri intentionally struck the badly beaten Ethel with a baseball bat twice. After the crime, Olivieri admitted to feeling that he was just as responsible as Puliafico for Ethel’s death. Additionally, Olivieri openly bragged about his involvement to his brother, Fred, on various occasions in Massachusetts, and told Fred that it was every man’s fantasy to rape and kill a woman.

Olivieri now justifies his part in Ethel’s death by arguing that he acted only to please and support his life-long friend, Puliafico, and this loyalty to Puliafico should be considered a mitigating factor. Olivieri’s argument is without merit. Loyalty to a friend has never been considered a mitigating factor to justify a cold-blooded and savage homicide. The District Court properly refused to instruct the jury on the lesser included offense of mitigated deliberate homicide.

Affirmed.

JUSTICES SHEEHY, BARZ, HUNT and WEBER concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the MATTER OF NEIL HALPRIN.
    No. 88-535.
    June 28, 1990.
    798 P.2d 80.
   OPINION AND ORDER

On November 1, 1988, the Commission on Practice of the State of Montana caused to be filed in this Court a complaint against Neil Halprin, an attorney authorized to practice law in this State. The complaint is in two counts, the first alleging acts of improper representation as an attorney for his client, Albert McGuigan of Thompson Falls, Montana, and the second count alleging that the Commission, through its counsel had attempted to serve attorney Halprin with a complaint, beginning on March 23, 1987, and continuing over six successive attempts at service, but that Halprin did not respond to any of the attempted services upon him.

Neil B. Halprin was admitted to practice before this Court on December 9, 1982. He paid all fees to this Court and to the State Bar of Montana as required, through 1984. In March, 1985, Halprin left the city of Missoula and the state of Montana and took up residence thereafter in various places, including the states of Washington, Nevada and Colorado. He returned to the state of Montana in March of 1989, again locating in Missoula. In that interim, he did not make any payments for his license fees to this Court, nor membership dues to the State Bar of Montana so as to maintain his status as an active Montana attorney.

Upon his return to Montana, Neil B. Halprin paid to the State Bar of Montana the sum of $255, which included sums necessary to cover his membership dues to the date of his payment and fees for his Continuing Legal Education credits. Thereafter he presented himself at the Office of the Clerk of this Court and tendered a check in the sum of $60 for the payment of his annual license fees to that date. The Clerk of the Court informed Mr. Halprin that there was an unresolved matter concerning him pending before the Commission on Practice and that it would be necessary for him to have that matter determined before the Clerk of the Court would issue to him an annual attorney’s license.

On the 20th day of March, 1989, Neil B. Halprin filed in this Court his petition to have his name restored to the roster of active Montana attorneys. On March 23, 1989, this Court entered its order that Mr. Halprin’s petition for reinstatement to active practice would be considered following notification to the Court by the Commission on Practice that the matter pending before the Commission had been resolved.

Eventually a hearing was held before the Commission on Practice in Missoula, Montana on September 27,1989, on the complaint of the Commission against attorney Halprin, and his response thereto. After the hearing before the Commission was concluded, but before the Commission entered its report and findings thereon, a second set of interrogatories was served upon attorney Halprin by John B. Whiston, of Missoula, the special counsel for the Commission on Practice, as to a matter that arose after the hearing, but concerning a part of attorney Halprin’s testimony before the Commission. The second set of interrogatories was responded to by attorney Halprin, through his attorney and counsel of record before the Commission. Following that, on February 20, 1990, the Commission on Practice filed herein its findings, conclusions and recommendations, to the effect that Neil B. Halprin be disbarred from the practice of law in the state of Montana, and that he be assessed and required to pay the costs of the proceedings against him.

In accordance with the Rules for Lawyer Disciplinary Enforcement, adopted by this Court in cause No. 10910 on August 24, 1983, respondent Halprin filed his objections and brief in opposition to the report and recommendation of the Commission on Practice, and special counsel for the Commission also filed his brief in support thereof. The matter now being ripe for decision, the Court being advised in the premises and good cause appearing, this Court now finds and determines as follows:

In January, 1984, Albert McGuigan retained the attorney services of Neil B. Halprin for the purposes of pursuing a claim against Sanders County, Montana, pertaining to the death of his son in 1980. In May of that year, Mr. Halprin agreed to handle McGuigan’s case. There was no precise written or oral agreement for the fee, it appearing that the sum of $1,500 was to be paid by McGuigan as a retainer and any fruits of the litigation would be divided based on a contingency fee. In September 1984, McGuigan paid cash at Mr. Halprin’s office the sum of $500. Attorney Halprin contended during the proceedings before the Commission on Practice that he had handled a number of other legal matters for McGuigan and that the $500 paid in September, 1984 would not compensate for the other matters, much less the wrongful death case. McGuigan contended before the Commission that the $500 related solely to the wrongful death action, a contention not specifically denied by attorney Halprin. The attorney produced no office records of the financial transactions with McGuigan, nor any office records that would show the legal work that he had done in connection with the wrongful death case. It appeared that Halprin eventually determined that the statute of limitations had run on the wrongful death case although he contended that there might have been a case under the “racketeering” federal statutes, a field in which attorney Halprin admits he is not an expert. At any rate, no accounting was made to McGuigan in writing or otherwise of the application and disposition of the $500 payment.

There is therefore in the record, and the Commission on Practice is supported in determining that clear and convincing evidence shows that attorney Halprin violated Rule 1.3 of the Rules of Professional Conduct in that he failed to act with reasonable diligence and promptness in representing his client, Albert McGuigan; that he violated Rule 1.4(a) of the Rules of Professional Conduct in that he failed to keep McGuigan reasonably informed about the status of the legal matters handled by him; that he violated Rule 1.15(a) in that he failed to keep records of account funds paid to him by his client; and that he violated Rule 1.16(d) by leaving his practice in Missoula to go to Washington without first protecting his client’s interests, or giving reasonable notice to McGuigan of the termination of his representation.

The Commission on Practice also concluded to dismiss count two, relating to the failure to respond to the numerous communications sent to attorney Halprin by the Commission on the grounds that there was a lack of clear and convincing evidence that such communications were in fact received by attorney Halprin.

In its report however, the Commission on Practice set out a third point of conduct concerning the practice of law by Halprin in 1989, after Halprin had returned to the state of Montana. On August 18, 1989, Halprin entered his appearance as an attorney of record for the plaintiff, Maurice Richards, in a cause against Missouri Nebraska Express pending in the District Court in Missoula County. On September 7, 1989, he withdrew his appearance, in response to an objection by the defendant noting that the respondent was not currently licensed to practice law in Montana. During the course of the hearing before the Commission, attorney Halprin had testified that he had not practiced law since he had returned to Montana and when reminded by a member of the Commission of the Richards case he apologized.

After the conclusion of the September 27 hearing before the Commission, the Commission received a copy of certain proceedings in the State District Court, Missoula County, in a criminal action against Jeffrey Schrom, another attorney. It appeared that attorney Halprin had been entered as counsel representing Schrom in connection with a plea bargain on September 13,1989. It was with respect to this item that the second set of interrogatories was forwarded to attorney Halprin. Facts developed thereby indicated that Schrom had been represented in the Missoula County District Court by attorney William Dee Morris, who also represented Halprin before the Commission. Mr. Morris had entered into a plea agreement with the County Attorney’s Office respecting Jeffrey Schrom, but did not make an appearance before the District Court with Mr. Schrom on the day that the parties had agreed to. The District Court issued a bench warrant for Jeffrey Schrom, and on the next day, at the behest of Mr. Morris, attorney Halprin appeared before the District Judge in Missoula County to represent Schrom while the plea bargain was there effectuated. The transcript shows that the participation by Halprin was minimal, he merely at one point stating that the defendant had no objection to the setting of a sentencing date by the District Court. Nevertheless, it is true that on that date his name was entered as counsel for the defendant Schrom, that he did appear before the District Court as an attorney, and that subsequently, on September 27,1989, he had testified to the Commission that he had not practiced law in any other particular than the Richard’s case.

Without cavil, there is clear and convincing evidence that attorney Halprin was not honest and forthright in his testimony before the Commission with respect to his practice of law upon his return to Montana, and he was thereby in violation of Rule 8.4(c) of the Rules of Professional Conduct, and of Rule 7(b) of the Rules for Lawyer’s Disciplinary Enforcement of the Supreme Court of the State of Montana.

Mr. Halprin argues in response to the foregoing, that his conduct with respect to Mr. McGuigan did not warrant disbarment or suspension nor censure. He points out that he helped McGuigan when no one else would, when McGuigan couldn’t afford to have his case handled, and that he represented him in many other actions for which he was never paid. He asserts that the members of the Commission were hostile to his cause, accepting as credible the statements of Mr. McGuigan and rejecting the testimony of Mr. Halprin which contradicted McGuigan. He also points to the number of persons that he has represented in a sort of “pro bono” capacity, especially persons who were having tax related difficulties, most of the time successfully, and in a manner for which he was complimented by the employees of the Internal Revenue Service, and by courts before whom he appeared in such causes. He contends that he and his counsel, William Dee Morris, were unsure of his status as an attorney upon his return to Montana in light of the fact that he had never been disbarred and because on March 14,1989, he had paid to the State Bar of Montana all of the back fees required.

With respect to the Richard’s litigation, which had been pending in the Missoula County District Court, he states that a member of the Commission itself represented the defendant and as counsel moved for his disqualification from handling the case because of our March 23, 1989 order. He states he withdrew immediately and left the case in the hands of Mr. Morns. He further states he apologized to the members of the Commission and he now apologizes to this Court.

In the Schrom case he contends he acted because of the emergency when a bench warrant had been issued for the appearance of Mr. Schrom brought about by the unforeseen absence of Mr. Morris at the time.

With respect to those two items of litigation, in which he appeared as counsel, he contends that he is “unsure” of his legal status. It is true in this case that before this time Mr. Halprin had never been disbarred, and that until he left this state in 1985, he had fully paid his license fees and State Bar dues and was duly qualified to practice law. Upon his return to Montana in March of 1989, he did make up his Bar membership dues and may have been informed by the State Bar officials that he was now restored to active status as a member of the State Bar. He is, however, required to be licensed annually through the Supreme Court in accordance with statutory law. Section 37-61-214, MCA, makes it a misdemeanor for an attorney to practice his profession in any court of record in this state until he shall have paid the license tax for the current fiscal year and procured a certificate from the Clerk of the Supreme Court certifying to the payment of the license tax and stating the period covered by the payment. As an attorney, Mr. Halprin cannot disclaim knowledge of the licensing provisions of the laws of the state of Montana. An attorney may not practice in courts of records of this state unless he or she holds a current license, certified to by the Clerk of the Supreme Court.

With respect to his present whereabouts, Mr. Halprin has informed us in his response that he has again left the state of Montana and he is presently employed as a salesman. It is otherwise clear in the record, however, that Mr. Halprin is an attorney in a severe financial plight.

Mr. Halprin cites a good many instances where he has helped poor people, and provided legal services to those who might otherwise have been unable to afford such. Whatever else may be said of him in this litigation, however, it is clear that with respect to the essential points heretofore set out and found by the Commission, clear and convincing evidence sustains the report of the Commission, and its recommendation that Mr. Halprin should be disbarred from the practice of the law in the state of Montana. The risk of losing his services to the poor and oppressed is overweighed by his unprofessional conduct in the matters before the Commission.

ACCORDINGLY, it is ordered and judged:

1. That Neil B. Halprin, the respondent herein, be and is hereby disbarred from the practice of law in the state of Montana, in any of its courts, such disbarment to be effective immediately.

In view of the contention of Neil B. Halprin that he has not otherwise engaged in the practice of law in the state of Montana since his return to the state we do not provide for notice to his clients and others of his disbarment nor for the appointment of counsel to protect the interests of his clients since he has been disbarred. As a safeguard, however, if attorney Neil B. Halprin has any prospective clients, or clients whom he has tentatively agreed to represent, he shall immediately deliver to such persons notice of his disbarment, and any papers or the property to which they may be entitled, all in accordance with Rule 21 of the Rules for Lawyer Disciplinary Enforcement; and in any event within 20 days of the effective date hereof file with this Court an affidavit under Rule 23 of said Rules showing that he has fully complied with the provisions of this order and with these Rules.

2. Because of the financial plight of the respondent Neil B. Halprin, a judgment for costs of investigation against him would be futile. Accordingly no assessment costs is made against respondent for the proceedings leading to his disbarment before the Commission on Practice.

3. The Clerk of this Corut shall by letter, inform the State Bar of Montana, the Clerks of the District Court of the several District Courts in the State, the Clerk of the United States District Court for the District of Montana, and the Clerk of the United States Court of Appeals for the Ninth Circuit, of the order of disbarment of Neil B. Halprin, and the effective date thereof.

4. The Clerk of this Court shall forthwith serve by ordinary mail a copy of this opinion and order upon the respondent Neil B. Halprin at his last known address in the record, and upon his attorney of record, William Dee Morris; and further upon the Commission on Practice, through its chairman and upon the special counsel of the Commission on Practice, John B. Whiston.

DATED this 28th day of June, 1990.

/s/ J.A. Tumage, Chief Justice

/s/ John Conway Harrison, Justice

/s/ John C. Sheehy, Justice

/s/ Diane G. Barz, Justice

/s/ William E. Hunt, Justice

/s/ R.C. McDonough, Justice

/s/ Fred J. Weber, Justice


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM DONNELLY, Defendant and Appellant.
    No. 89-532.
    Submitted on Briefs Aug. 9, 1990.
    Decided Sept. 4, 1990.
    Rehearing Denied Oct. 11, 1990.
    798 P.2d 89.

      Byron W. Boggs, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Schaeffer Jordan, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court

Defendant William Donnelly appeals a Missoula County jury verdict finding him guilty of incest. We affirm.

Defendant raises five issues for review:

1. Whether the District Court erred in not allowing defense counsel to review the complete psychological record of the victim.

2. Whether the District Court erred in allowing expert testimony that the victim was a sexually abused child.

3. Whether the District Court erred in denying defendant’s motion for a mistrial on the basis of surprise.

4. Whether the District Court erred in denying the defendant’s motion for a new trial in finding the victim competent to testify.

5. Whether the District Court infringed the defendant’s right against self-incrimination when it ordered that parole be conditioned on successful completion of a sex offender’s course.

An information filed May 4, 1988 charged defendant William Donnelly with incest in violation of § 45-5-507(l)(3), MCA. The facts constituting the offense were that from 1980 through 1987 defendant, as a continuing course of conduct, had sexual intercourse and sexual contact as defined in § 45-2-101, MCA, with the victim, defendant’s minor adopted daughter, “Janey Doe.”

Janey Doe testified at trial about a particular incident which occurred in March of 1987. This particular incident began with an argument between Janey Doe and defendant regarding which television program would be watched. The argument progressed into a “tickling match” and culminated into a traumatic sexual experience of oral, anal, and vaginal sex between defendant and Janey Doe. Janey Doe testified that she silently endured years of defendant’s sexual abuse before telling anyone for fear that her father would kill her. Defendant flatly denies all allegations of sexual contact with Janey Doe.

The first trial in the District Court, Fourth Judicial District in the County of Missoula, was held on September 14-16,1988, and resulted in a hungjury. Asecond trial followed from which this appeal is taken.

At the omnibus hearing for the first trial, defense counsel requested Dr. Cook’s psychological records pertaining to Janey Doe’s treatment. The District Court denied defendant access to Dr. Cook’s records but granted access to Dr. Wedell’s records, Janey Doe’s child psychologist. On April 21,1989 at the second trial, the District Court reasserted the previous order denying access to Dr. Cook’s records. The District Court also granted defense counsel’s request for an update of Dr. Wedell’s records.

Discussion in chambers focused on whether an expert could testify that someone has been a victim of sexual abuse. Over objection of the defense, the court allowed such expert testimony. This ruling is at issue in defendant’s appeal.

At trial, Dr. Wedell, testified concerning general symptoms often found in children who have been sexually abused, including disruption in development, acting out, withdrawal or aggression, low self-esteem, nightmares and flashbacks, depression, antisocial behavior, and self- destructive behavior. Dr. Wedell also testified that there is a direct link between severe sexual trauma in childhood and the development of multiple personality disorder. She also testified that child victims often block out the sexual trauma and often gradually disclose the sexual abuse over a long period of time. Dr. Wedell concluded that Janey Doe fit the profile of a sexually abused child.

Janey Doe was learning disabled, was frightened and had nightmares that her father would kill her. Following the disclosure she became increasingly self-injurious, pulling her hair out, sticking herself with needles and cutting herself. Janey Doe felt “unclean” and unworthy of visiting the Church of Jesus Christ of Latter Day Saints Temple in 1987. Janey Doe suffered, as well, from multiple personality disorder.

Defense moved for a new trial on the ground that the victim was incompetent to testify on the grounds that she suffered from multiple personality disorder. The motion was briefed, argued, and denied. The District Court order stated that the victim was “able to discern truth from falsity and her credibility is a proper question for the jury.”

On July 7,1989, the jury returned a verdict finding the defendant guilty of incest. The District Court ordered the defendant ineligible for parole until the successful completion of the sexual offender program at the Montana State Prison and until the defendant is thereafter accepted into an aftercare program. A notice of appeal from the judgment was filed on July 27,1989. The Sentence Review Division affirmed the sentence on January 17, 1990, and this appeal followed. We affirm.

Additional facts will be discussed as necessary.

Issue 1: Whether the District Court erred in not allowing defense counsel to review the complete psychological record of the victim.

In the instant case Janey Doe had a history of psychological problems which predated the sexual abuse she experienced. The State attempted to prove, by way of expert testimony, that Janey Doe’s multiple personalities and bizarre self-destructive activities were classic symptoms of “abused child syndrome” and that Janey fit the “abused child” profile. The defense strategy was to present alternate explanations for the observed personality features of the victim. Toward this end, the defense requested the entire psychological and medical file of Janey Doe, particularly the records of Dr. William Cook, and Dr. Wedell. Dr. Cook had seen the victim over an extended period of time prior to Janey Doe’s disclosure of sexual abuse. Dr. Wedell, on the other hand, had counseled Janey subsequent to her disclosure of sexual abuse. The District Court examined the requested information in camera and (1) ordered that the records of Dr. Cook were protected from discovery; and (2) granted defense counsel access to Dr. Wedell’s complete treatment file of Janey Doe.

In its order, the District Court balanced the needs of the defense to have access to exculpatory evidence against the privacy interests of Janey Doe. The court found that the requested records from Dr. Cook were not exculpatory and not necessary for the preparation of the defense. For these reasons, the District Court denied defendant’s motion for the release of Dr. Cook’s records. We agree with the District Court’s order.

Appellant claims the denial of access to the victim’s past psychological records denied him the right to be represented by counsel, the right to confront the witnesses against him, and the right to compel the attendance of witnesses under the Montana Constitution, Article II, Section 24. These federal constitutional issues have already been decided against defendant by the United States Supreme Court in Pennsylvania v. Ritchie (1987), 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40. Defendant does not show, with citation to any authority, that Article II, Section 24 of the Montana Constitution provides broader guarantees of confirmation and compulsory process than those established by the United States Supreme Court in Ritchie. As such, we refuse to interpret the Montana Constitution more expansively as defendant now urges.

Moreover, this Court has recently rejected a similar argument in State v. Reynolds (Mont. 1990), [243 Mont. 1,] 792 P.2d 1111, 47 St.Rep. 1143. In Reynolds we held, as defendant concedes, that defense counsel’s right to review the medical and psychological records of the victim in an incest case is outweighed by the child’s right to confideiitiality under the statutes. Our holding in Reynolds controls this issue here.

Here, the District Court reviewed the requested psychological records in camera. After in camera inspection the District Court found that the information was not exculpatory nor necessary for the preparation of a defense. Pursuant to this finding the District Court ruled that the requested information was privileged since the testimonial privileges protecting medical and psychological records outweigh the defendant’s limited right to such information. This in camera inspection by the District Court suffices to protect the confrontation rights of the defendant. Due to the privileged status of the medical and psychological records requested by defendant, we hold that defense counsel’s right to review the medical and psychological records of the victim in an incest case is outweighed by the child’s right to confidentiality under the statutes. Sections 41-3-205, 26-1-807, MCA.

The defendant also claims that he was denied his right to confront witnesses and his due process rights because of the District Court’s refusal to allow the defendant access to all of Janey Doe’s medical and psychological records. The right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination. The right of confrontation is not a rule equivalent to a constitutionally compelled rule of pretrial discovery. As long as the defendant was not prevented from cross-examining the adverse witnesses his right to confront witnesses has not been violated. Ritchie, 480 U.S. at 54, 107 S.Ct. at 1000, 94 L.Ed.2d at 55.

We note our holding in a recent case, State v. Thiel (Mont. 1989), 236 Mont. 63, 768 P.2d 343, 46 St.Rep. 182. In Thiel the district court denied defendant access to the victim’s child abuse files. We held that this ruling did not violate defendant’s right to confront his accusers since defendant was afforded the opportunity to cross-examine the adverse witnesses. Thiel, 236 Mont. at 66-67, 768 P.2d at 345, 46 St.Rep. at 185.

The reasoning in Thiel can be applied to the facts of this case. Here, defendant requested and was denied access to certain medical and psychological records of the victim in the possession of private third parties. The defendant was afforded the opportunity to cross-examine all adverse witnesses. Furthermore, the defendant, as the victim’s father, was well aware of the victim’s medical and psychological history. Had there been anything in that history relevant to the victim’s bias, motive or prejudice, defendant would have been aware of this. Yet, defense counsel made only a general request for all the records without establishing a basis for his claim that they contained material exculpatory evidence. Under these circumstances the District Court acted properly in denying defendant access to Dr. Cook’s psychological records pertaining to Janey Doe. The defendant’s rights were fully protected by the District Court’s in camera study of the requested psychological records pursuant to Montana’s child abuse confidentiality statute, § 41-3-205, MCA. Relying on Ritchie and Thiel, we hold that defendant’s rights to confront his accusers were preserved in the instant case.

Issue 2: Whether the District Court erred in allowing expert testimony that the victim was a sexually abused child.

The defendant argues that the District Court violated his rights to due process and to a jury trial by allowing expert testimony, over defendant’s objection, that the victim was a sexually abused child.

As a secondary issue, defendant complains that the expert witness was also allowed to testify concerning the characteristics of sex offenders. We shall not entertain this secondary issue. Defendant failed to object at trial to the expert testimony on the myths about sex offenders and general characteristics of sex offenders. Therefore this issue is not properly before this Court on appeal. We have previously stated that this Court will not entertain the issue on appeal when expert testimony in child sexual abuse cases has not been objected to at trial as improper. State v. Eiler (1988), 234 Mont. 38, 52, 762 P.2d 210, 219; State v. Patton (1979) 183 Mont. 417, 600 P.2d 194.

The admissibility of expert testimony was debated in pretrial proceedings before the District Court in this case and decided against defendant. The District Court allowed expert testimony as to whether Janey Doe had been subj ect to sexual abuse, but ruled that the precise issue of credibility could not be addressed in a final conclusion of the expert.

The issue of whether expert testimony is admissible concerning the credibility of a child alleged to have been the victim of sexual abuse is well settled in Montana. The District Court order allowing such testimony is consistent with our opinion in State v. Geyman (1986), 224 Mont. 194, 729 P.2d 475. In Geyman we held that expert testimony is admissible “for the purpose of helping the jury to assess the credibility of a child sexual assault victim.” Geyman at 200, 729 P.2d at 479. Expert testimony offered for this purpose is admissible so long as it does not impinge upon the jury’s obligation to decide ultimately the victim’s credibility. Dr. Wedell’s testimony as detailed in the statement of facts “merely enlightened the jurors on a subject with which many or most jurors have no common experience they can use to judge the victim’s credibility.” (Emphasis added.) Geyman at 200, 729 P.2d at 479. The testimony of Dr. Wedell did not impinge upon the jury’s obligation to decide Janey Doe’s credibility. The District Court was proper in allowing expert testimony that Janey Doe fit the profile of a sexually abused child. We hold that defendant’s rights to due process and to a jury trial were not violated by the District Court in allowing this expert testimony.

Issue 3: Whether the District Court erred in denying defendant’s motion for mistrial on the basis of surprise.

The defendant claims he was substantially prejudiced when the State’s expert witness changed her testimony during the second trial from that of the first trial and from the opinion stated in her professional notes. Defendant bases its claims of substantial prejudice on surprise.

At the first trial, Dr. Wedell testified that Janey Doe had been sexually abused. Dr. Wedell based this testimony on her initial diagnosis that Janey Doe suffered from “post-traumatic stress disorder with a major depressive episode and identity disorder.” At the second trial, Dr. Wedell discarded this initial diagnosis and replaced it with an evolving diagnosis of emerging multiple personality disorder, based upon the fact that Janey Doe would present herself at therapy sessions in completely different ways. Again, Dr. Wedell concluded that Janey Doe was a victim of sexual abuse.

The defendant claims this change in testimony was prejudicial error based on surprise. However the record shows that there was at least one reference to this second diagnosis of multiple personality disorder in the first trial. Moreover, Dr. Wedell’s notes on Janey Doe’s therapy, which were provided to defense counsel, make several references to Janey’s multiple personality disorder. For instance, a note dated October 31, 1988 contained: “Multiple personalities? [Janey Doe’s mother] has been recognizing 2 or more very different [Janey Does].” A note dated February 1, 1989 contained: ‘We discussed my concern that the mood swings are more than just that and may reflect multiple personalities.” Anote dated February 29,1989 contained: “I am more and more questioning a possible diagnosis of multiple personality disorder for this young woman.” A note dated April 19, 1989 quoted Janey Doe as inquiring whether Dr. Wedell thought Janey was “2 people.” In view of all of these entries in the notes given to defense counsel, we hold his claim of surprise is not substantiated.

In any event, the change in diagnosis from post-traumatic stress disorder with major depression and identity disorder to multiple personality disorder did not alter the ultimate conclusion, at both trials, that the child had been sexually abused. Furthermore, the changed diagnosis did not represent exculpatory and material information which the prosecution has a constitutional or statutory duty to disclose to the defendant. Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

Defense counsel argues that had he known about the victim’s multiple personalities, he would have cross-examined the victim about the disorder. Defense counsel suggests defendant was denied the right to cross-examine witnesses by not being informed about the victim’s disorder. This argument is without merit. Since the victim was expressly made available for recall, defense counsel had the opportunity to question the victim about items appearing in the psychologist’s notes, and did not do so. The District Court did not err in denying defendant’s motion for mistrial.

Issue 4: Whether the District Court erred in denying the defendant’s motion for a new trial in finding the victim competent to testify.

The defendant argues that the victim was incompetent to testify since she suffered from multiple personality disorder. Defendant contends that her two other personalities would have given inconsistent testimony had they emerged. The District Court ruled, in its order dated June 30, 1989, that the victim was competent to testify and that the victim’s credibility was properly a question for the jury. We agree with the District Court’s order.

The determination of competency of a witness to testify is within the sound discretion of the district court and will not be overturned unless an abuse of discretion is demonstrated. State v. Newman (Mont. 1990), [242 Mont. 315,] 790 P.2d 971, 47 St.Rep. 711. This Court has recently reiterated that “what is important is the capacity to remember the occurrence and the ability of the witness to relate her impressions of what occurred.” Newman, 790 P.2d at 974, 47 St.Rep. at 715; quoting Eiler , 234 Mont. at 43, 762 P.2d at 213. Any inconsistencies within her testimony or possible fabrication would affect Janey Doe’s credibility not her competency. Eiler at 43, 762 P.2d at 213-14.

Here, the District Court determined that Janey Doe had the capacity to express herself, to remember what occurred, and to understand her duty to tell the truth. Janey Doe was fifteen years old when she testified. The District Court assessed the competency of the witness to testify based on its observation of the witness and concluded:

“It is true that [Janey Doe] suffers from extensive and severe emotional damage because of the incestuous actions of the defendant, William Donnelly. However, she is able to discern the truth from falsity and her credibility is properly a question for the jury.”

The defense counsel has failed to point to evidence, nor have we been able to find evidence, in the record which would support finding that the District Court abused its discretion in finding the victim competent to testify. The District Court observed the witness and concluded there was no evidence in her demeanor which would suggest she was incompetent to testify. Furthermore, none of the testimony from any of Jane/s emerging personalities recanted her testimony which incriminated her sexually abusive father. The District Court in this case did not abuse its discretion in deciding that Janey Doe understood her duty to tell the truth and had the ability to clearly communicate her accounts of the events in question.

Issue 5: Whether the District Court infringed the defendant’s right against self-incrimination when it ordered that defendant be ineligible for parole until he completes a sex offender’s course.

The District Court, after reviewing a pre-sentence investigation report, ordered the defendant “will be ineligible for parole until the successful completion of the sexual offender program at the Montana State Prison and the defendant is accepted into an aftercare program.” (Emphasis added.) Defendant takes no exception to this condition on parole imposed by the District Court. However, in order to be accepted into the sexual offender program and receive treatment, defendant must admit to incest of which he was convicted. Defendant contends that if he does not admit to incest, he will be denied treatment, and thus denied parole. As such, defendant argues that these requisite admissions are, in fact, compelled in violation of his privilege against self-incrimination.

The Fifth Amendment protects persons from testifying against themselves. We fail to find the defendant was compelled to testify in violation of his privilege against self-incrimination.

Our holding in Matter of C.L.R. (1986), 211 Mont. 381, 685 P.2d 926, controls. In Matter of C.L.R., the defendant was being tried for homicide of his girlfriend’s minor child. The child died as a result of internal injuries sustained from being struck by defendant. At the time of defendant’s arrest, his girlfriend was pregnant. Proceedings were begun, concurrent with the homicide trial, to terminate his parental rights. Defendant moved to stay these proceedings until his criminal proceedings were terminated.

Defendant reasoned that in order to testify at his hearing to terminate parental rights, he would jeopardize his Fifth Amendment rights to remain silent. He contended that if he refused to testify, he would lose his parental rights. In this case we said:

“[A]ppellant suffered no compulsion to testify, therefore no violation of the Fifth Amendment occurred. Appellant clearly could remain silent if he so desired without fear of certain penalty for not testifying. Appellant’s determination to testify hinges upon a tactical decision and not penalty of certain loss of parental rights, as he asserted.”

Matter of C.L.R.. at 387, 685 P.2d at 929. We held that parental rights proceedings failed to infringe upon defendant’s Fifth Amendment rights even though testimony at the proceeding could be used at the criminal proceeding. We felt no compulsion occurred. Id. This decision is controlling.

The key to this rests on whether the defendant was compelled to testify or was merely required to make a “tactical” decision regarding his parole. Here, defendant’s decision to remain silent is a tactical one, not a compelled one. Defense counsel argues that, in reality, defendant’s testimony is in fact compelled since it is a prerequisite for parole. It is possible that defendant may be paroled sooner if he admits to incest than if he remains silent. However, defendant may remain silent if he so chooses, and still possibly be paroled at some future date based on good behavior.

Furthermore, failure to admit to incest will not result in certain penalty to defendant, it will only result to preserve his current ineligible parole status. In this case, the District Cotut ordered that the defendant was ineligible for parole until the satisfaction of a condition subsequent. The condition subsequent is partially satisfied by defendant’s successful completion of the sexual offender program at Montana State Prison. Failure to satisfy this condition subsequent, i.e., failure to satisfactorily complete the sex offender program, will not result in a penalty but will merely result in defendant’s continued ineligibility for parole. We therefore hold that the District Court acted properly in conditioning defendant’s parole on the satisfaction of Montana State Prison’s sexual offender program and that defendant’s rights against self-incrimination were not violated thereby.

We affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDONOUGH and HUNT concur.


author: JUSTICE SHEEHY

text:
    In the Matter of the WORKERS’ COMPENSATION DEATH BENEFITS of RICHARD GAITHER.
    No. 89-293.
    Submitted April 24, 1990.
    Decided Aug. 21, 1990.
    797 P.2d 208.

      John B. Whiston argued, Rossbach & Whiston, Missoula, for appellant.
    Larry W. Jones argued, Garlington, Lohn & Robinson, Missoula, Michael Hoff, Seattle, Wash., for respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This case involves the rights to benefits under the Workers’ Compensation law where the decedent who died in the course of his employment is survived by two children of a prior marriage, and by the widow of a second marriage through whom he had no children. We determined here that the surviving widow may waive or abandon her right to benefits; and that upon such waiver the surviving children are entitled to no more than their proportionate share of the benefits provided by law. In so holding we affirm in part and reverse in part the judgment of the Workers’ Compensation Court.

Richard M. Gaither married Donna L. Paulson in Maryland on December 8, 1973. Two children were born of the marriage, Heather, on December 24,1976, and Heidi on January 30,1978.

On December 31, 1979, Richard and Donna were divorced in Maryland, custody of the children being awarded to their mother, with Richard obligated for their support. However, on December 9, 1981, with the consent of both Richard and Donna, the two children were adopted by their then stepfather, George A. Yorkston, to whom Donna had remarried. Substitute Certificates of Birth were issued by the State of Maryland for each of the children.

On December 24, 1984, Richard married Laurie K. Baugher at Seattle, Washington, a marriage that was in effect at the time of his death.

Richard and Laurie maintained a home in Edmonds, Washington, though Richard spent most of the six months preceding his death in Helena, Montana. He was employed as a pilot by Corporate Air of Billings, Montana. While acting in the course and scope of his employment on February 3,1988, and subject to the benefits and obligations of the Workers’ Compensation Law of Montana, Richard was killed in the crash of an airplane owned by Minuteman Aviation, a Montana corporation.

No litigation ensued respecting the liability of Minuteman or others, relating to Richard Gaither’s death. However his insurer and others with potential liability for death claims settled with the widow, Laurie, in a structured settlement for substantial sums, which have been paid and are to be paid in escalating amounts monthly until May 15,2009. The approximate accumulation of funds should she live to that date will be in the sum of $758,800.00. After that date, and for the remainder of her life, she will receive the sum of $3,000 per month.

Heather and Heidi are not parties to the structured settlement, and derived no benefit therefrom. Laurie, as the surviving widow never filed a claim for Workers’ Compensation benefits, though one was prepared and filed by Corporate Air, Richard’s employer. Travelers Indemnity Insurance Company, the compensation carrier for Corporate Air, upon such filing, began paying one-third (V3) of the compensation benefits to Laurie, as Richard’s widow and beneficiary, and reserved two-thirds (2/3) of the benefits pending final determination of the children’s status as beneficiaries. Laurie advised Travelers, on April 25, 1988 that she did not wish to receive any Workers’ Compensation benefits and returned those she had previously been issued by Travelers. Since April 28,1988, all benefits have been held in reserve pending the final ruling of the courts in these proceedings.

Travelers petitioned the Workers’ Compensation Court for a declaratory ruling on August 23, 1988. The issues before the Workers’ Compensation Court were (1) whether the widow could legally renounce her benefits entitlement, and (2) whether the adoption of the children by the mother’s second husband terminates their entitlement to death benefits, thereby mandating 100 percent of the benefits to be payable to the widow. Jurisdiction of the petition was properly before the Workers’ Compensation Court by virtue of its authority to issue declaratory rulings within the subject jurisdiction of the Workers’ Compensation Laws of Montana. State ex rel. Uninsured Employees’ Fund v. Hunt (Mont. 1981), 191 Mont. 514, 625 P.2d 539.

On March 24,1989, the Workers’ Compensation Court determined that the widow could not waive death benefits as a matter of public policy, and that the children’s interest in the benefits would vest only if the widow died or remarried prior to the passing of 500 weeks after the death of Richard Gaither.

The children filed a request for rehearing on April 11,1989. In its order of April 25, 1989, the Workers’ Compensation Court modified its earlier order, finding the children to be the stepchildren of the surviving widow, and the three therefore entitled to death benefits, to be equally divided between all parties.

The children appeal to this Court the determination that the surviving spouse is compelled to receive benefits she did not claim or intended to waive and contend that the children should each receive one-half of all the benefits available; Travelers cross-appeals the determination that the children are proper beneficiaries.

On this appeal the issues raised by the children are:

1. Did the Workers’ Compensation Court err in holding that the surviving spouse’s right to Workers’ Compensation death benefits was not barred by the statute of limitations?

2. Did the Workers’ Compensation Court err in holding that the surviving spouse could not waive Workers’ Compensation death benefits?

The issue raised by the respondent Travelers Indemnity Insurance Company on appeal is:

Did the Workers’ Compensation Court err in holding that the Workers’ Compensation death benefits should be equally divided among the surviving spouse and the decedent’s two children?

Statute of Limitations

Section 39-71-601, MCA, states in part.

“(1) In case of personal injury or death, all claims must be forever barred unless presented in writing to the employer, the insurer, or the department, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf.

In this case, the claim for benefits was filed not by the surviving widow, nor by the beneficiaries, but by the employer, Corporate Air. The children contend that this filing by Corporate Air means nothing, that § 39-71-601, MCA, has not been complied with, and that therefore the claim was not properly filed under the mandatory provisions of the statute.

The children also argue that this Court has interpreted the filing requirement under § 39-71-601, MCA, to be mandatory. They cite Miller v. City of Billings (1976), 171 Mont. 91, 96, 555 P.2d 747, 752, in which this Court stated that “[t]he filing requirements of section 92-601, R.C.M. 1947 (now § 39-71-601), are mandatory in nature and compliance is essential to the existence of a right to have proceedings to compel payment of compensation.” See also Devlin v. Galusha, Higgins & Galusha (1982), 202 Mont. 134, 655 P.2d 979.

The children also cite Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 483, 512 P.2d 1304, 1312, for this Court’s determination that “the duty is upon the claimant to file his claim, not upon the insurer to solicit claims.” Children maintain that the employer or insurer took the initial step of soliciting a claim on behalf of the widow, when the widow voluntarily chose not to pursue a claim. They assert that Travelers is not a party legally authorized to file a claim on behalf of the widow in this instance, as set out in the statute.

Travelers contends that § 39-71-601 in no way prohibits the filing of a claim by a non-beneficiary. For support, Insurer cites Scott v. Utility Line Contractors (1987), 226 Mont. 154, 734 P.2d 206, and Weigand v. Anderson-Meyer Drilling Co. (1988), 232 Mont. 390, 758 P.2d 260. In both Scott and Weigand, the issue relating to § 39-71-601 was whether claimants initiated the filing procedure in a manner sufficient to give adequate notice of the claimant’s injury. In both cases this Court determined that the claimants substantially complied with the statute by notifying employers and insurers of the injury, resulting in a written notification, ruled to be acceptable as a claim. That claimants in most cases initiated the filing process was a focal point in this Court’s determination that the requirements of § 39-71-601 will be broadly applied as to the sufficiency of notice.

None of these cases interprets § 39-71-601 adequately and addresses the issue at hand. We have a unique situation, in that the claimant and the insurer are arguing the reverse of their customary positions. The children argue that the claim did not meet the guidelines of the statute, and no benefits should be paid to the widow, while the insurer argues the claim met the statutory standard, and the insurer is obligated to pay the death benefits to the widow.

The Workers’ Compensation Court, faced with no clear guidelines in this unique situation, held the statute of limitations defense to be available only to the insurer. The court stated:

“What effect, if any, does the widow’s rejection of benefits have? We believe none. The children argue that since the widow did not file a ‘claim’ for benefits within one year of death, she is not entitled to benefits because the statute of limitations precludes payment. However, the statute of limitations is a defense available to an insurer, not to other potential claimants. In this case, the insurer commenced payment of benefits immediately upon the death of Mr. Gaither.”

The generally accepted underlying policy and objective of statutes of limitations is to “compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend.” 51 Am. Jur. 2d 602, Limitation of Actions, § 17.

The bar of a statute of limitations is an affirmative defense (Rule 8(c), M.R.Civ.P.) generally, in Workers’ Compensation cases, to be raised by the insurer or the employer. While the claim in this case was not filed by a party specifically authorized to file a claim under the statute, there is no need for us or the Workers’ Compensation Court to apply the statute strictly where the underlying policy of such limitations statutes is not contravened. In this case each party had a fair opportunity to present the issues to the Workers’ Compensation Court and the filing was within the statutory time. For those reasons we decline to apply the statute of limitations upon the grounds that a claim has been filed by a person not specifically authorized under § 39-71-601, MCA.

Waiver of Benefits by Widow

Travelers contends that the Workers’ Compensation Court erred in its determination that the widow cannot waive death benefits. The Court stated:

“Petitioner [Travelers] submits that public policy requires that compensability be acknowledged. We concur. To allow the widow to waive benefits is a commendable purpose for the children. Yet the employer is thereby precluded from any benefit of a subrogation entitlement by its insurer. The public policy of workers’ compensation is to mandate coverage for both the employer and employee. As such, injury caused by a third-party tortious wrongdoer is the subject of a subrogation right by the work comp insurer, which thereby reduced the tortious wrongdoer is the subject of a subrogation right by the work comp insurer, which thereby reduced the employer’s obligation for premium reflecting the loss. The argument presented by the widow and the children would preclude participation in the third-party settlement by the employer, since they did not participate in that action.”

The children contend that the Workers’ Compensation Court has confused the public policy of mandatory coverage with a supposed public policy mandatory receipt of benefits. Section 39-71-409, MCA, states:

“Waivers by employee invalid. No agreement by an employee to waive any rights under this chapter for any injury to be received shall be valid”.

It is obvious that the foregoing statute is not applicable to the facts here. The waiver is not from an employee but from a beneficiary, and the statute contemplates a waiver before the injury is received.

Travelers, however, maintains that the widow in this case may not waive her right to benefits under the Workers’ Compensation law. Travelers argues that there is a public policy declaration in § 39-71-105, MCA, which makes it an objective of the Montana Workers’ Compensation system to provide, without regard to fault, wage supplement and medical benefits to a worker suffering from a work-related injury or disease. Travelers maintains that such public policy brings this case within the exception provided in § 1-3-204, MCA, which states:

“Waiver of benefit of a law. Anyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.”

It must be recognized that there is a broad public policy that a workers’ compensation system be provided, that workers should be protected under such a system, and that the beneficiaries also be protected in their rights. In upholding the constitutionality of the original Workers’ Compensation Act, this Court held that an employee may waive the advantage of any provision of law that was intended solely for his benefit as long as the waiver does not violate public policy. Shea v. North-Butte Mining Company (1919), 55 Mont. 522, 179 P. 499. In this case, once the death of Richard occurred, and with the filing of the claim for benefits, there vested in Laurie, as the surviving widow, a right to benefits under the workers’ compensation laws of this state. The right to receive those benefits was personal to Laurie, and undoubtedly she had the right to waive or abandon the same. Section 1-3-204, MCA; H. Earl Clack Company v. Staunton (1937), 105 Mont. 375, 72 P.2d 1022; Anaconda Copper Mining Company v. Ravalli County (1919), 56 Mont. 530, 186 P. 332; Bush v. Baker (1913), 46 Mont. 535, 129 P. 550.

Cross Appeal: The Children’s Benefits

Travelers contends that the Workers’ Compensation Court erred in holding that death benefits should be paid to the surviving children of the decedent.

The children contend on the other hand that since the widow has waived any right to benefits, they are entitled to split her share, in effect, granting one-half interest in all benefits to each of the two surviving children.

The Workers’ Compensation Court had originally held that the vested only if the widow died or remarried prior to the expiration of 500 weeks after the death of Richard. On rehearing, the Court reversed itself stating:

“This Court’s prior order was clearly erroneous in concluding that the surviving children are contingent beneficiaries only, since there was a surviving spouse. Though we acknowledge the fact that the ternTstep-children’ is not defined in the Workers’ Compensation Act, clearly the natural children of the deceased are the step-children of the surviving spouse and, accordingly, are entitled to benefits under the provisions of Section 723. The prior ruling of this Court, holding otherwise, is expressly modified.”

The statute which provides for division of benefits among beneficiaries is § 39-71-723, MCA, which states in part:

“Compensation due to beneficiaries shall be paid to the surviving spouse, if any, or if none, then divided equally among or for the benefit of the children. In cases where beneficiaries are a surviving spouse and stepchildren of such spouse, the compensation shall be divided equally among all beneficiaries.”

In construing the foregoing statute, we use the definitions provided in the statutes for terms used in § 39-71-723, MCA. Section 39-71-116, MCA, includes the definitions of “child” and of “beneficiary.” Under § 39-71-116, MCA, a “child” includes a child legally adopted prior to the injury. Under that definition, each of the children here involved is a child in the contemplation of the Workers’ Compensation Act. Likewise, the word “beneficiary” includes an unmarried child under the age of 18 years. Section 39-71-116(2)(b), MCA. Each of the children here also qualify as a beneficiary. None of the statutes define a “stepchild” so we look to the common meaning of that term. A “stepchild” is a child of one’s wife or husband by a former marriage. Websters’New Collegiate Dictionary (1981).

In applying those terms and definitions to § 39-71-723, MCA, above, we determine that the “beneficiaries” in this case are surviving spouse Laurie, and Heather and Heidi, who are stepchildren of Laurie. As such, under the same statute, the compensation is to be divided equally among them.

However, the widow, Laurie, has waived or abandoned the share to which she would be entitled under § 39-71-723, MCA. Counsel for the children contends that since a priority claimant has made no claim for compensation death benefits, the case should proceed as if that claimant had not existed. 2 Larson, Workers’ Compensation Law, Section 64.34, at 11-231 through 11-232.

Notwithstanding this argument, that would not be a proper result in this case. On the death of Richard, the right to benefits after a claim was properly filed vested in each of the beneficiaries entitled under § 39-71-723, MCA. That vested right is personal to each of the beneficiaries here involved. The fact that Laurie waived or abandoned her right to benefits does not operate to increase the benefits otherwise allocable to the children. The language of § 39-71-723 is clear that where beneficiaries are a surviving spouse and stepchildren of the spouse, compensation shall be divided equally among all the beneficiaries. Each child is entitled to one-third of the compensation under the facts of this case, an entitlement which is not affected by the waiver or abandonment by the spouse either to increase or to decrease that amount.

Result

Accordingly, we affirm the Workers’ Compensation Court that the claim in this case was not barred by the statute of limitations; and that Heather and Heidi are each entitled to one-third of the Workers’ Compensation benefits. We reverse the Workers’ Compensation Court in its holding that the surviving widow, Laurie, could not waive her right to receive benefits -under the Workers’ Compensation Law. Although the subject was referred to in the Workers’ Compensation Court’s order, we have no issue of subrogation before us in this case at this time. Costs to the children.

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


author: JUSTICE BARZ

text:
    STATE OF MONTANA, City of Bozeman, Plaintiff and Respondent, v. DONALD LEON SPEITH, Defendant and Appellant.
    No. 90-190.
    Submitted on Briefs July 13, 1990.
    Decided Sept. 4, 1990.
    797 P.2d 221.

      McKinley Anderson, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Bruce Becker, City Atty., Bozeman, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Defendant Donald Leon Speith appeals the Eighteenth Judicial District Court’s order dismissing his appeal from Bozeman City Court as untimely. We affirm.

The following issues are presented for review:

1. Is the defendant, convicted in city court of driving under the influence of alcohol, entitled to de novo review in the District Court where he failed to secure transmittal of the record?

2. Is the defendant entitled to dismissal of the charges against him for failure of the City of Bozeman to seek dismissal of his appeal at an earlier date?

Speith was arrested in Bozeman on July 5,1988 for driving under the influence of alcohol, fourth offense. On July 11, 1988 Speith appeared with counsel and pleaded not guilty. At the July 27, 1988 bench trial in Bozeman City Court, Speith was convicted as charged. On August 1,1988 Speith was fined $1,010 and sentenced to one year in jail with ten days to be served consecutively and weekends in jail for a one-year period. The court suspended the remainder of the sentence on the condition that Speith surrender his car for 90 days and complete a treatment program.

Speith filed a notice of appeal with the city court on August 3,1988 and execution of sentence was stayed pending appeal. The Bozeman City Clerk sent a memo to Speith’s counsel on August 5, 1988 requesting counsel to complete and return a praecipe to transmit the record, indicating the praecipe form was enclosed. Not until January 15, 1990 was the completed praecipe for transmittal executed. The record was then transmitted to Gallatin County District Court on January 19,1990, a delay of almost a year and a half.

On January 31,1990, the District Court entered an order dismissing the appeal for failure to transmit the record within the time required by law. From this order Speith now appeals.

I

As this Court has previously noted, the right to appeal a criminal conviction from justice or city court is purely statutory. State v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338. Appeals from justice or city courts are addressed in § 46-17-311, MCA, which provides in part:

“(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.
“(3) Within 30 days, the entire record of the justices’ or city court proceedings must be transferred to the district court or the appeal must be dismissed. It is the duty of the appellant to perfect the appeal.”

This Court has consistently held that strict compliance with sec. 46-17-311, MCA, is necessary to perfect an appeal. State v. Arthur (1988), 234 Mont. 75, 76-77, 761 P.2d 806, 807; Hartford at 256, 257, 741 P.2d at 1338. We once again affirm that it is the duty of appellant to perfect the appeal. See State v. Main (1981), 191 Mont. 304, 623 P.2d 1382; State v. Crane (1982), 196 Mont. 305, 639 P.2d 514; City of Billings v. Seiffert (1985), 15 Mont. 381, 697 P.2d 1342.

As the statute indicates, in order to perfect the appeal the entire justice or city court record must be transmitted to the district court within 30 days of judgment, and only when the clerk forwards such records is the transmission of records effected. Main at 307, 623 P.2d at 1383. The appellant, with whom the statutory duty to perfect the appeal lies, must request the justice or city court to transmit the record to the district court. State v. Dubray (1982), 201 Mont. 327, 331, 654 P.2d 970, 972.

According to the record, the City of Bozeman did not receive a request for transmittal of the record until January 15, 1990, nearly a year and a half after the city court rendered its judgment. Had the record reflected a dispute over whether defense counsel actually requested transmission of the record, the district court must hold a hearing to resolve the issue and make a factual finding to determine whether the appeal had been perfected. Seiffert at 383, 697 P.2d at 1344.

Here there is no evidence in the record nor even an assertion by Speith on appeal that he requested the city court’s records be transmitted to the District Court before January 15, 1990. Thus, Speith’s argument that the District Court erred in failing to hold a hearing to determine whether he had in fact requested the record transmitted, as required by Seiffert, has no merit. Moreover, Speith did not request a hearing at the District Court level.

II

Speith next argues that because the prosecution failed to either bring him to trial or seek dismissal of the appeal within six months of city court judgment, he was denied his right to a speedy trial. Speith contends that this Court should construe § 46-13-201(2), MCA “as placing a statutory period on the city in which to move to have the appeal dismissed.” Section 46-13-201(2), MCA, provides that prosecution of misdemeanor charges must be dismissed “if a defendant whose trial has not been postponed upon his application is not brought to trial within six months after entry of plea.” Speith’s reliance on this statute is without merit.

The initial trial in city court was well within the six-month limitation imposed by statute. Speith, however, argues that the six month time limit also applies to his right to a trial de novo in district court following the filing of his notice of appeal. Section 46-13-201(2), MCA, is limited to the time within which a case properly before the court may be tried, and its provisions may not be invoked unless the court has obtained jurisdiction. The District Court in this case had not obtained jurisdiction because Speith had failed to perfect the appeal.

Furthermore, where the delay has been caused by the defendant, § 46-13-201(2), MCA, does not apply. State v. Crane (Mont. 1989), [240 Mont. 235,] 784 P.2d 901, 903, 46 St.Rep. 2082, 2085. It is defendant Speith who occasioned the delay in resolving his appeal. Therefore, he is not entitled to claim the protection of § 46-13-201(2), MCA.

Lastly, Speith seems to argue that even if he is not entitled to a trial de novo, the charges should nevertheless be dismissed because he has been deprived of a speedy execution of his sentence. In his brief Speith contends that he has “a right to have the sentence of the court cancel out so that he can reorganize his life after the sentence has been served.”

Speith’s argument is analogous to that made in Mobley v. Dugger (11th Cir. 1987), 823 F.2d 1495. In Mobley the appellant, like Speith, argued that “the due process clause of the Fourteenth Amendment accords a prisoner the right to reestablish himself and live down his past (citation omitted) and that the state violates this right when it delays the incarceration of a prisoner for an inordinate amount of time.”

Mobley in at 1496.

We concur with the holding of the Mobley court:

“Such a due process right, if it indeed exists, takes life from the constitutional protection against arbitrary and capricious state action. See Shelton v. Ciccone, 578 F.2d 1241, 1245 (8th Cir. 1978). Accordingly, we have held that:
“[In order for a delay in the execution of a sentence to be repugnant to the Fourteenth Amendment], it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state’s action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with ‘fundamental principles of liberty and justice’ to require a legal sentence to be served in the aftermath of such action or inaction.”
“Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973) (Citation omitted.) Obviously, the state does not deny a prisoner due process when the prisoner himself is responsible for the delay. Albori v. United States, 67 F.2d 4, 7 (9th Cir. 1933); White v. Pearlman, 42 F.2d 788, 789 (10th Cir. 1930); United States v. Merritt, 478 F.Supp. 804, 807 (D.D.C. 1979).”

Mobley, at 1496-97.

Here, as in Mobley, Speith himself is responsible for the delay in execution of his sentence. Had Speith perfected his appeal in accordance with § 46-13-201(2), MCA, his sentence would not have been delayed.

We affirm the judgment of the District Court.

JUSTICES HARRISON, HUNT, SHEEHY and WEBER concur.


text:
    TERRY VANLUCHENE, Jane Vanluchene, Paula Ostrom, Katherine Vanluchene, and Derek Vanluchene, as individuals; Terry Vanluchene and Jane Vanluchene as Personal Representatives of the ESTATE OF RYAN VANLUCHENE, Deceased, Plaintiffs and Appellants, v. STATE OF MONTANA, Defendant and Respondent.
    No. 89-588.
    Submitted on Briefs May 24, 1990.
    Decided Sept. 4, 1990.
    Rehearing Denied Oct. 2, 1990.
    797 P.2d 932.

      Kenneth R. Olson, Great Falls, for plaintiffs and appellants.
    Maxon R. Davis, Paul R. Haffeman, Cure, Borer & Davis, Great Falls, for defendant and respondent
    W. William Leaphart, Leaphart Law Firm, Helena, amicus curiae (Bartruff).
   JUSTICE BARZ

delivered the Opinion of the Court.

This appeal arises from the summary disposition of appellants’ claims in the District Court of the Ninth Judicial District, Pondera County. We affirm.

On June 11, 1984, Robert Hornback pled guilty to felony sexual assault following his attack on a young boy in Libby. Hornback was sentenced to five years in Montana State Prison with a dangerous offender designation. Hornback served his full sentence reduced only by a statutory allowance for good time (§ 53-30-105, MCA) and by 132 days for time served prior to conviction. Hornback was released when his sentence expired on May 22,1987. On August 31,1987, Hornback sexually assaulted and killed eight-year-old Ryan VanLuchene in Libby. Hornback pled guilty to assaulting and killing Ryan and was sentenced to 200 years in the Montana State Prison.

Appellants are Ryan’s parents, sisters and brother. Appellants initially filed a tort claim before the Department of Administration. Following denial of that claim, appellants brought this action in District Court. Respondent moved for dismissal pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court considered matters not contained within the pleadings in rendering its judgment and for that reason converted respondent’s motion to dismiss to a motion for summary judgment pursuant to Rule 56, M.R.Civ.P.

The District Cotut found that appellants’ theories of proximate cause were too speculative and that respondent’s acts were not the proximate cause of appellants’ injuries. The lower court further found that respondent has no duty to insure the rehabilitation of prisoners and cannot reasonably detain prisoners beyond the expiration of their sentences. The District Court concluded that respondent had no duty to warn of Hornback’s release.

The first issue raised by appellants is whether the District Court erred in granting summary judgment in favor of respondent. Summary judgment is properly rendered when there are no genuine issues of material fact. Bohnsack v. Hi-Noon Petroleum, Inc. (Mont. 1990), [243 Mont. 190,] 793 P.2d 815, 817, 47 St.Rep. 1125, 1127. Summary judgment is proper in this case because there are no significant factual disputes.

We restate the remaining issues raised by appellants as:

1. Do alleged violations of certain statutory provisions by respondent amount to negligence per se?

2. Does respondent have a duty, the breach of which is recoverable in tort, to avoid the release of prisoners known to it to be suffering from psychological problems which make the prisoners a danger to society?

3. Does respondent have a duty to effectively warn society of the danger represented by recently released prisoners who are presently dangerous and/or to take whatever other steps are reasonably necessary under the circumstances to protect society?

Specifically, appellants argue the acts enumerated below constituted negligence by respondent:

1. Homback did not receive therapy through the sexual offender treatment program despite the specific finding of the sentencing court that he needed help. Appellants claim Hornback was asked to leave the group by the other members and did so with the consent of prison authorities.

2. Prison authorities allegedly ignored repeated sexual assaults committed against Homback that had the effect of exacerbating his pre-existing psychological problems.

3. Hornback was not disciplined for consensual homosexual contact which discipline could have resulted in reduction or elimination of his good time allowance.

4. Although allegedly aware of Homback’s threats to murder a young blond child in the Libby area, prison officials made no effort to detain Homback past the expiration of his sentence.

5. Prison authorities failed to issue a warning concurrent with Hornback’s release.

I.

Appellants assert the following impose a duty upon the State, the breach of which is actionable in tort:

“No barbarous punishments may be prescribed for an inmate of the state prison, nor shall an inmate, as punishment, be deprived of his normal provision of food while being compelled to work the usual number of hours per day.”

Section 53-30-104, MCA.

“The correctional policy of the state of Montana is to protect society by preventing crime through punishment and rehabilitation of the convicted. The legislature finds that an individual is responsible for and must be held accountable for his actions. Corrections laws and programs must be implemented to impress upon each individual his responsibility for obeying the law. To achieve this end, it is the policy of the state to assure that prosecution of criminal offenses occurs whenever probable cause exists and that punishment of the convicted is certain, timely, and consistent. Furthermore, it is the state’s policy that persons convicted of a crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities.”

Section 46-18-101(2), MCA.

“Dangerous offenders who habitually violate the law and victimize the public shall be removed from society and correctively treated in custody for long terms as needed. Other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the individual. Whenever possible, sentences for offenders shall include restitution to the victim, payment of costs as provided in 46-18-232, and payment of costs of court-appointed counsel as provided in 46-8-113.”

Section 46-18-101(3)(b), MCA.

“The department shall utilize at maximum efficiency the resources of state government in a coordinated effort to:
“(1) restore the physically or mentally disabled;
“(2) rehabilitate the violators of law;
“(6) coordinate and apply the principles of modem institutional administration to the institutions of the state.”

Section 53-1-201, MCA.

“The institution at Deer Lodge is the state prison and as its primary function provides facilities for the custody, treatment, training, and rehabilitation of adult criminal offenders.”

Section 53-30-101, MCA.

The essence of appellants’ argument is that respondent’s violation of the above statutes constitutes negligence. A statutory infraction may amount to negligence per se. Thayer v. Hicks (Mont. 1990), [243 Mont. 138,] 793 P.2d 784, 792, 47 St.Rep. 1082, 1091.

“The violation of statutes is negligence as a matter of law when the purpose of the statute is to protect a class of persons, the plaintiff is a member of that class, and the defendant is a person against whom a duty is imposed. (Citations omitted.) The purpose of the statute also must be to protect against the kind of injury received by the plaintiff.”

Nehring v. LaCounte (1986), 219 Mont. 462, 468, 712 P.2d 1329, 1333.

To prevail in a negligence per se case, the plaintiff must prove:

1. The defendant violated the particular statute.

2. The statute was enacted to protect a specific class of persons.

3. Plaintiff is a member of that class.

4. Plaintiff’s injury is of the sort the statute was enacted to prevent.

5. The statute was intended to regulate members of defendant’s class. See, Nehring v. LaCounte, supra.

In the instant case, appellants fail to establish that respondent violated any of the enumerated provisions. Appellants state no facts from which we can conclude Hornback was subjected to barbarous punishment. Hornback was allegedly the victim of repeated sexual assaults while incarcerated at Montana State Prison. Appellants’ contention that these assaults were part of Hornback’s punishment lacks merit. The argument advanced by appellant would require a finding that these assaults were part of the punishment imposed upon Hornback by respondent. This we decline to do.

Appellants further contend respondent has a duty to rehabilitate prisoners. We disagree. The above-cited statutes clearly provide for use of multitudinous State resources in an effort to rehabilitate prisoners. The State is not a guarantor of its rehabilitation facilities and we will not impose such on obligation upon it.

II.

Appellants assert respondent has a duty to avoid the release of prisoners whose mental illnesses render them dangerous to society. Section 46-18-801, MCA, states that:

“(1) Conviction of any offense shall not deprive the offender of any civil or constitutional rights except as they shall be specifically enumerated by the sentencing judge as necessary conditions of the sentence directed toward the objectives of rehabilitation and the protection of society.
“(2) No person shall suffer any civil or constitutional disability not specifically included by the sentencing judge in his order of sentence.
“(3) When a person has been deprived of any of his civil or constitutional rights by reason of conviction for an offense and his sentence has expired or he has been pardoned, he shall be restored to all civil rights and full citizenship, the same as if such conviction had not occurred.”

Clearly, once Homback’s sentence had expired, respondent had no choice but to release him from Montana State Prison. To have refused his release would have violated Homback’s constitutional rights. Appellants assert respondent should have disciplined Hornback for alleged homosexual activity and could have initiated civil commitment proceedings against Hornback to delay his release into society. Neither argument persuades us that respondent has any duty to detain a prisoner once his sentence has expired.

III.

Appellants contend respondent should have issued a warning regarding Homback’s release from Montana State Prison. We note with approval the holding of the California Supreme Court in Thompson v. County of Alameda (1980), 27 Cal.3d 741, 167 Cal.Rptr. 70, 614 P.2d 728. In that case, a juvenile offender who had repeatedly threatened to kill a young child was released to his mother’s custody by the defendant. Defendant issued no warning regarding the offender’s release. Within 24 hours of his release, the youth murdered the young son of his mother’s neighbors. Thompson, 614 P.2d at 730. Plaintiff parents sued alleging defendant had a duty to warn of the offender’s release in light of his threats, citing Tarasoff v. Regents of University of California (1976), 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334. The Thompson court foresaw:

“[Significant practical obstacles in the imposition of a duty in the form that plaintiffs seek, concluding that it would be unwieldy and of little practical value. As previously indicated a large number of persons are released and supervised on probation and parole each year in this state. Notification to the public at large of the release of each offender who has a history of violence and who has made a generalized threat at some time during incarceration or while under supervision would, in our view, produce a cacophony of warnings that by reason of their sheer volume would add little to the effective protection of the public.”

Thompson, 614 P.2d at 735.

The merit of issuing a warning to the general public in the instant case is equally questionable. Appellants do not set forth how their actions would have differed had respondent made a general public warning. The legislature, after considering this issue in its last regular session, enacted the Sexual Offender Registration Act, codified at § 46-23-501, et seq., MCA.

“A sexual offender who is released from the custody of the department of institutions or the department of family services must be informed in writing prior to release of his duty to register under 46-18-254, 46-18-255, and this part by the official in charge of the place of confinement. The official shall obtain the address where the person expects to reside upon his release and report the address to the department of institutions. The department shall inform the appropriate law enforcement agency having local jurisdiction where the person expects to reside.”

Section 46-23-503, MCA.

The legislature recognized the futility of issuing a public warning regarding the release of every potentially violent offender. It is truly unfortunate and tragic that Ryan VanLuchene died by the reprehensible, violent, senseless acts of an ex-convict. Recovering monetary damages in tort for the death of Ryan by holding the State responsible is not the law. The law and Montana’s criminal justice system have, however, seen to it that Robert Homback will pay something - his life will be spent behind bars.

We hold that the respondent had no duty to warn the public under the facts of this case.

Affirmed.

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