author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD AHTO, Defendant and Appellant.
    No. 97-118.
    Submitted on Briefs May 28, 1998.
    Decided August 13, 1998.
    1998 MT 200.
    55 St.Rep. 851.
    290 Mont. 338.
    965 P.2d 240.

      For Appellant: Carrie L. Garber, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, C. Mark Fowler, Ass’t Attorney General, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Donald Ahto (Ahto) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, convicting him of one count of felony assault and one count of sexual intercourse without consent. Ahto contends that the District Court violated his constitutional right to confrontation by improperly excluding evidence pursuant to § 45-5-511(2), MCA, Montana’s rape shield statute. Ahto asserts that he was denied his right to a fair trial as a result of improper comments by the prosecutor. In addition, Ahto contends that he was prejudiced by the State of Montana’s (State’s) failure to disclose medical documents until after the trial. Finally, Ahto maintains that the State failed to establish that a clipper cord is a “weapon” within the meaning of § 45-2-101(76), MCA. Ahto seeks a new trial as relief. We affirm the decision of the District Court.

Factual and Procedural Background

¶2 January 22,1996, was a cold day and Ahto and his live-in girlfriend, T.G., stayed in their apartment and watched television together most of the day. At approximately 8:30 p.m., T.G. decided to go to the Lobby Liquor Lounge (the Lobby) where she frequently hung out. The Lobby was only a couple of blocks from their apartment, so T.G. walked. T.G. testified that when she arrived at the Lobby she recognized two of her friends, Chuck and Krista. T.G. had a few beers while she talked with her friends. Around 11:00 p.m., T.G. called Ahto from the Lobby to tell him that she would be home soon.

¶3 Around 1:30, the bartender indicated that he was getting ready to close the bar so Chuck and Krista offered T.G. a ride home. They stopped at the Holiday Store to purchase some cigarettes and T.G. called Ahto again from the store indicating that she was on her way home and asking if Ahto needed anything from the store.

¶4 T.G. testified that she arrived at home at about 2:15 a.m. and Ahto was waiting for her sitting in a chair in the kitchen. T.G. said that when she entered the door she could tell by Ahto’s facial expressions that he was angry with her. Ahto asked “Where the hell have you been?” When he found out that Chuck and Krista gave her a ride home, Ahto became enraged because T.G. was in a black man’s car. He then grabbed T.G., threw her across the room and began hitting her repeatedly in the face and chest.

¶5 Ahto told T.G. to take her clothes off. T.G. testified that she was frightened by Ahto’s conduct and decided to comply. As she was standing undressed, Ahto grabbed a set of electric clippers and began whipping T.G. across the back with the cord. Ahto then had T.G. get on the bed “on all fours.” Ahto had anal intercourse with T.G. three times without her consent. T.G. testified that throughout the episode, which lasted approximately two hours, Ahto continued to beat her with the cord and his fists. Ahto and T.G. fell asleep around 6:30 a.m. T.G. testified that she did not try to flee while Ahto was sleeping because she was afraid she would wake him and he would be angry.

¶6 Ahto, on the other hand, testified that T.G. did not arrive home until approximately 4:00 a.m. and that he was asleep in the chair waiting for her. Ahto explained that he was upset with T.G. because they had an on-going disagreement about T.G.’s cocaine habit and her prostituting herself to obtain drug money. Ahto testified that, after T.G. called at 2:15 a.m., he had received another phone call from an individual who deals drugs at the Parkway Motel who indicated that T.G. had been there.

¶7 Ahto testified that when T.G. entered the apartment, he noticed that her chin looked somewhat bruised, but that he was not concerned because she often came home with bruises from prostituting. In addition, Ahto indicated that he believed T.G. was under the influence of drugs. Ahto said that T. G. knew he was upset and was trying to make up with him by kissing him. He said that he pushed her away causing her to fall onto the couch. Ahto testified that they then engaged in consensual anal sex in the missionary position at T.G.’s request. Ahto explained that T.G. was often willing to have anal intercourse when she knew Ahto was mad at her. Ahto testified that he did not rape T.G., he did not hit her with a cord, and he did not hit her in the face.

¶8 At trial, Ahto and T. G.’s next door neighbor, Keith White, testified to his recollection of the events of January 22-23,1996. Mr. White said he went to bed at approximately 11:00 p.m. on January 22nd and that he was awakened in the middle of the night to the sound of screaming from Ahto and T.G.’s apartment. Mr. White explained that the walls in the Darryl Apartments are very thin because it is an old building. In addition, Mr. White’s bed shared the same wall as the Murphy style bed in Ahto and T.G.’s apartment. Mr. White testified that he heard T.G. screaming in “sheer terror” and indicated that the screaming, crying and sounds of someone being hit lasted for several hours and would occur in approximately 20 minute intervals. Mr. White recalls looking at his clock right before he fell back to sleep, it was about 4:30 a.m. He testified, however, that he did not intervene or call the police because he does not have a telephone in his apartment. In addition, Mr. White explained that the only pay phone is at a restaurant across the street and because of his disability, it takes him two hours to dress himself. He believed that the incident would be over before he could summon help. Finally, Mr. White explained that several incidents have taken place at the Darryl Apartments and he has learned that it is better not to get involved. Mr. White did not want to become “another victim.”

¶9 The next morning Ahto arose first and went to collect some boxes. Ahto and T.G. had been evicted from their apartment and they had to move out that day. When Ahto returned he woke T.G. and they began packing. T.G. explained that she did not feel that she had an opportunity to leave or call anyone for help during that time. They moved their boxes across the hall to Ron Danford’s (Danford’s) apartment at about 5:00 p.m. Danford made a comment about T.G.’s bruises and Ahto explained that he had to give her a “whooping” because she had been out late the night before. Danford then told Ahto that he should not treat his girlfriend so badly if he loves her. To which Ahto replied if you (Danford) want to, “you take care of her.” Ahto then left Danford’s apartment in anger. After Ahto left, T.G. showed Danford her injuries. Danford called 911 and an ambulance was dispatched to the Darryl Apartments shortly thereafter. T.G. was treated by emergency medical personnel for pain and severe bruising to her jaw, her facial region and her scalp, bruising around her eyes, and bruising with linear marks through it in the thoracic region and on her arms and legs. James Evan Buchan, M.D., testified that T.G.’s injuries were consistent with her interpretation of the events. In addition, a rectal examination revealed four small tears to T.G.’s anus consistent with forced entry of the anus.

¶10 Ahto was charged with three counts of felony assault and one count of sexual intercourse without consent. Prior to trial, the State moved in limine pursuant to § 45-5-511(2), MCA, to exclude any evidence of T.G.’s prior sexual conduct. The District Court granted the State’s motion prohibiting prior sexual conduct evidence, including evidence regarding T.G.’s involvement in prostitution, during the State’s case-in-chief and during cross-examination of T.G. The District Court, however, denied any limitations on the scope of Ahto’s defense and, therefore, allowed Ahto to testify about T.G.’s involvement in prostitution during the defense’s case-in-chief. Following trial, the jury found Ahto guilty of one count of felony assault and one count of sexual intercourse without consent. Shortly after trial, Ahto moved for a new trial. The District Court denied Ahto’s motion. Ahto appeals to this Court. We address four issues on appeal:

¶11 1) Did the District Court abuse its discretion in granting the State’s motion in limine pursuant to § 45-5-511(2), MCA, precluding Ahto from cross-examining T.G. about her involvement in prostitution?

¶12 2) Did the District Court abuse its discretion in denying Ahto’s motion for mistrial following improper comments by the prosecutor during closing argument?

¶13 3) Did the District Court abuse its discretion in denying Ahto’s motion for a new trial based on the alleged failure of the State to disclose a medical report until after the trial?

¶ 14 4) Did the District Court abuse its discretion in denying Ahto’s motion for directed verdict for failure of the State to establish that the clipper cord constituted a weapon in accordance with § 45-2-101(76),

¶15 1) Did the District Court abuse its discretion in granting the State’s motion in limine pursuant to § 45-5-511(2), MCA, precluding Ahto from cross-examining T.G. about her involvement in prostitution?

¶16 The Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to confront witnesses. This right, however, is not absolute. The United States Supreme Court has established that state rules excluding evidence from criminal trials do not abridge a defendant’s right to present a defense so long as the rule is not arbitrary or disproportionate to the purpose it is designed to serve. State v. Johnson, 1998 MT 107, ¶22, 958 P.2d 1182, ¶22, 55 St.Rep. 408, ¶22 (citing United States v. Scheffer (1998), 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413). Montana’s rape shield law, § 45-5-511(2), MCA, provides that, with certain limitations, no evidence concerning the sexual conduct of the victim is admissible in a case involving a sexual crime. This Court has held that the State has a compelling interest in preventing rape trials from becoming a trial on the victim’s prior sexual conduct and thus has repeatedly upheld the rape shield law against Sixth Amendment attacks. See Johnson, ¶22; State ex rel. Mazurek v. Dist. Court of Fourth Jud. Dist. (1996), 277 Mont. 349, 922 P.2d 474; State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193.

¶17 Speculative or unsupported allegations are insufficient to tip the scales in favor of a defendant’s right to present a defense and against the victim’s rights under the rape shield statute. Johnson, ¶24 (citations omitted). In reviewing a district court’s decision regarding the admissibility of evidence relating to the extrinsic sexual conduct of sexual assault victims under § 45-5-511, MCA, we determine whether the district court abused its discretion. Mazurek, 277 Mont. at 353, 922 P.2d at 477. Ahto asserts that the District Court’s granting of the State’s motion in limine pursuant to § 45-5-511(2), MCA, limiting evidence of T.G.’s involvement in prostitution, violates his constitutional right to confrontation. Therefore, we review the District Court’s decision limiting evidence of T.G.’s involvement in prostitution to determine whether the District Court abused its discretion.

¶18 Ahto points to two alleged errors in the District Court’s order granting the State’s motion in limine prohibiting Ahto from cross-examining T.G. regarding her involvement in prostitution: First, Ahto maintains that he should have been able to cross-examine T.G. regarding prostitution because evidence of prostitution established his defense to the felony assault charges. Second, Ahto contends that the State “opened the door” to the issue of prostitution by eliciting testimony from T. G. regarding her employment at the time of the alleged assault.

¶19 As to Ahto’s first assertion, Ahto maintains that T.G., due to her involvement in prostitution, routinely came home late at night with bruises. Ahto claims that he sought to introduce evidence of T.G.’s prostitution to show that the night of January 22 was no different than any other night, that he did not have any reason to be upset about T.G. returning home late, and that T.G. was likely injured by someone other than him. Ahto claims that because he was precluded from cross-examining T.G. regarding prostitution, he was not able to present a defense to the felony assault charge.

¶20 The record, however, reveals that at trial it was Ahto’s contention that T.G. was assaulted as a result of an outstanding debt or possibly in a bar fight. Ahto did not contend, as he does now, that T.G. was injured as a result of her involvement in prostitution. Not only is Ahto presenting this argument for the first time on appeal, but we determine that it is unsupported and speculative. Ahto did not offer any evidence that T.G. had been beaten by someone else, nor did he present any witnesses to that effect. Ahto offers nothing more than an unsubstantiated allegation that T.G. has, in the past, come home with injuries as a result of prostitution. Speculative or unsupported allegations are insufficient to tip the scales in favor of allowing a defendant to present a defense based on prior sexual conduct of the victim. Johnson, ¶24. Therefore, we hold that the District Court did not err in limiting evidence of prostitution as it related to Ahto’s defense to the felony assault charges.

¶21 In addition, Ahto contends that evidence of T.G.’s prostitution activities should have been admitted because it related to her credibility and veracity as a witness. Ahto maintains that, had he been able to cross-examine T.G. regarding prostitution, “the jury could have reasonably concluded that [T.G.j’s testimony was biased and/or motivated by her involvement in prostitution, a criminal activity.” Ahto presents his argument based on this Court’s decision in State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193. In Anderson, the defendant sought to introduce evidence, contrary to the rape shield law, that one of his accusers had made similar sexual assault allegations against another person. We explained that “[djespite the general policy against sordid probes into a victim’s past sexual conduct, we conclude that the policy is not violated or circumvented if the offered evidence can be narrowed to the issue of the complaining witness’ veracity.” Anderson, 211 Mont. at 284, 686 P.2d at 200 (citation omitted). Nevertheless, we held that the district court in that case did not abuse its discretion in excluding evidence of the prior allegations because there was no competent evidence that the charges against the other person were false. As a result, the proffered evidence had no bearing on the witness’ veracity.

¶22 Likewise, in this case, Ahto sought to introduce evidence of T.G.’s involvement in prostitution because he claims it “[does] not relate to her past sexual conduct... [i]nstead, it relate[s] directly to her credibility and veracity as a witness, i.e., her motive to testify falsely.” In presenting this argument, however, Ahto does not explain how T.G.’s alleged involvement in prostitution effects her ability to testify as a credible witness. Apparently he contends that proof of prostitution alone proves bias and motive to lie. The District Court found that “[i]t appears that Defendant is seeking to call the victim’s general credibility into question and place her on trial, which is exactly what the Rape Shield Statute is intended to prohibit.” We agree. Ahto’s attempt to impeach T.G.’s credibility with evidence of past prostitution does not come within the Anderson rationale. Further, since Ahto did not maintain that T.G. was assaulted while engaging in prostitution and that she was lying about the source of her injuries, we need not address whether he would have been able to attack her credibility under another rationale; the confrontation clause, for example.

¶23 Moreover, we determine that Ahto was given sufficient opportunity to raise a question as to T.G.’s credibility and her potential motives to testify falsely. The record reveals that Ahto was given an opportunity to cross-examine T.G. about inconsistencies between her recorded statement and her testimony at trial. In addition, defense counsel asked T.G. about several possible motives which might lead her to testify falsely. We hold that the District Court did not abuse its discretion in precluding Ahto from cross-examining T.G. about her involvement in prostitution because such evidence would not have established a lack of credibility on T.G.’s part.

¶24 Second, Ahto maintains that the State “opened the door” to cross-examination of T.G. regarding prostitution by eliciting testimony from T.G. about her employment status at the time of the assault. During the trial, the following questions were asked by the State of T.G. on direct examination:

Q: Were you working at that time [referring to the date of the alleged assault]?
A: No.
Q: And how were you being supported?
A: He [Ahto] was working for Executive Clean.

Following this otherwise insignificant line of questions, defense counsel requested permission to approach the bench for a sidebar discussion. The discussion was not recorded by the court reporter. In chambers the next day, defense counsel sought to preserve the discussion for the record. During the sidebar discussion, defense counsel alleged that the State opened the door to cross-examination about prostitution by questioning T.G. about her source of support. As a result, defense counsel insisted that he should have an opportunity to cross-examine T.G. about prostitution. The District Court denied defense counsel’s request to cross-examine T.G. about prostitution and reiterated its decision that all such evidence was prohibited pursuant to the rape shield law.

¶25 Ahto argues on appeal that the District Court erred in prohibiting the defense from cross-examining T.G. about prostitution because he claims that the State “opened the door” to such testimony. In support of his argument, Ahto cites this Court’s decision in State v. Scott (1993), 257 Mont. 454, 850 P.2d 286, where we held that “[t]he right of cross-examination extends not only to all facts stated by the witness in [her] original examination, but to all other facts connected with them, directly or indirectly....” Scott, 257 Mont. at 466, 850 P.2d at 293 (citation omitted). However, in Scott, we also held that the district court determines the latitude of cross-examination, and that determination will not be disturbed on appeal absent a clear abuse of discretion. Scott, 257 Mont. at 466, 850 P.2d at 293.

¶26 The District Court determined that evidence of T.G.’s alleged involvement in prostitution was precluded under § 45-5-511(2), MCA, the rape shield law. As a result, the District Court ruled that Ahto was prohibited from cross-examining T.G. regarding her involvement in prostitution. Although Ahto states that it was fundamentally unfair for the District Court to allow the State to ask about employment but not allow the defense to cross-examine regarding prostitution, Ahto does not demonstrate how he was prejudiced by the ruling. A review of the record shows that the prosecutor’s question about whether T.G. was working at the time of the alleged assault was innocuous at best. In fact, T.G.’s response could be seen as shedding a positive light on Ahto as supporting and caring for T.G. We determine that the District Court, despite the State’s question about employment, did not abuse its discretion in denying Ahto an opportunity to cross-examine T.G. regarding prostitution.

¶27 The State contends that Ahto’s constitutional right to confront witnesses was not violated by the District Court’s ruling regarding the admissibility of T.G.’s involvement in prostitution. The State maintains that evidence of T.G.’s prostitution lacked probative value to Ahto’s defense to the assault charge and the prejudicial effect of the evidence to T.G. would have outweighed any potential value to the defense. Moreover, Ahto was given the opportunity to testify at length regarding T.G.’s alleged involvement in prostitution, her drug habit, and the fact that T.G. had, in the past, come home after being beaten by her prostitution clients. We conclude that the District Court did not abuse its discretion in precluding Ahto from cross-examining T.G. regarding prostitution.

II

¶28 2) Did the District Court abuse its discretion in denying Ahto’s motion for mistrial following improper comments by the prosecutor during closing argument?

¶29 Ahto contends that he was denied his right to a fair trial as a result of an improper comment made by the prosecutor. During closing argument, the prosecutor stated “[Ahto] is concerned because, to his knowledge, she has a drug problem. She may even be a prostitute, and yet the Defendant makes these accusations; no evidence to support them.”

¶30 Following closing argument by the State, the District Court recessed and defense counsel moved for a mistrial in chambers. Defense counsel asserted, as grounds for a mistrial, that the State told the jury that there was no evidence to support the fact that T.G. was a prostitute when such evidence was available. However, the defense was prohibited by the court from introducing such evidence pursuant to the rape shield law. As additional grounds for a mistrial, defense counsel again raised the issue of the direct examination of T.G. referring to her occupation at the time of the alleged assault and the fact that such questioning opened the door to cross-examination regarding prostitution.

¶31 In response to defense counsel’s motion, the State maintained that the closing argument did not deny Ahto a fair trial. Furthermore, the State requested that the District Court deny Ahto’s motion for a mistrial because defense counsel had raised insufficient grounds for a mistrial. The District Court explained that it had strongly admonished the jury against accepting closing argument as evidence and thus denied Ahto’s motion for a mistrial.

¶32 In reviewing a district court’s ruling on a motion for a mistrial, this Court determines whether the district court abused its discretion. State v. Partin (1997), [287 Mont. 12], 951 P.2d 1002, 1005. The general rule in d etermining whether a mistrial is appropriate, requires the court to inquire into whether there is a reasonable possibility that inadmissible evidence might have contributed to the conviction. Partin, 951 P.2d at 1005, 54 St.Rep. at 1477. More specifically, the court reviews three factors: 1) the strength ofthe evidence against the defendant; 2) the prejudicial effect of the alleged improper testimony or comments; and 3) whether a cautionary jury instruction could cure any prejudice. Partin, 951 P.2d at 1005-06, 54 St.Rep. at 1477.

¶33 As to the strength of the evidence in this case, T.G. testified to the events that occurred during the early morning hours of January 23,1996. T.G. explained in detail how Ahto repeatedly beat and raped her. In addition, other witnesses corroborated T.G.’s story. For example, Mr. White explained that his apartment was next door to T.G. and Ahto’s apartment. Mr. White, who was familiar with T.G.’s voice, heard T.G. screaming in sheer terror for several hours and heard what he described as someone being hit repeatedly. Danford said that he saw T.G.’s facial injuries and inquired as to what had happened. Danford told the jury that Ahto admitted giving T.G. a “whooping” for being out so late. Finally, Dr. Buchan testified that the injuries suffered by T.G. were consistent with her statement of what happened. In all, the evidence of Ahto’s guilt was overwhelming.

¶34 The evidence, however, must be considered in light of any potential prejudicial effect caused by the prosecutor’s comment. The prosecutor stated that the defense did not have evidence to support its contention that T.G. was a prostitute. Ahto contends that, not only has T.G. been convicted of prostitution, but that he could have produced a witness to that effect. We determine, however, that whether or not T.G. was a prostitute was irrelevant to the real issue in controversy — whether Ahto assaulted and raped T.G. on January 23,1996. As discussed above, Ahto sought to introduce evidence of T.G.’s involvement in prostitution to establish that she had come home beaten in the past and to attack her credibility as a witness. However, as we explained, evidence of prostitution did not establish a defense for Ahto because, although Ahto himself testified as to T.G.’s alleged past involvement in prostitution, Ahto did not contend at trial that T.G. was beaten by a prostitution client on the night in question. Furthermore, prostitution in and of itself does not show a lack of credibility on the part of the witness. In addition to its lack of probative value, we determine that any further evidence of whether T.G. was a prostitute would not have been sufficient to overcome the overwhelming evidence of Ahto’s guilt.

¶3 5 Moreover, the District Court had instructed the jury that it was not to consider statements of counsel as evidence. “Generally, ‘an error in the admission of evidence may be cured if the jury is admonished to disregard it.’ ” Partin, 951 P.2d at 1007, 54 St.Rep. at 1478 (quoting State v. Walker (1996), 280 Mont. 346, 353, 930 P.2d 60, 64). In this case, the prosecutor’s statement was not admitted in evidence and the court’s cautionary statement that the jury was not to consider such statements as evidence was sufficient to cure any prejudicial effect of the comment by the prosecutor.

¶36 We conclude that there is not a reasonable possibility that the comment by the prosecutor during closing argument contributed to Ahto’s conviction. The record reveals overwhelming evidence of Ahto’s guilt. In addition, the District Court’s cautionary instruction to not consider statements of counsel as evidence was sufficient to cure any potential prejudicial effect of the prosecutor’s comments. Therefore, we hold that the District Court did not abuse its discretion in denying Ahto’s motion for mistrial.

Ill

¶37 3) Did the District Court abuse its discretion in denying Ahto’s motion for a new trial based on the alleged failure of the State to disclose a medical report until after the trial?

¶38 Shortly after his trial, Ahto moved for a new trial contending that the State failed to furnish a 17-page medical report to him until after trial. Ahto maintains that the State only provided him with 4 pages of medical records before trial and that the State had an obligation to produce the 17-page medical report before trial. As a result of the State’s withholding the records, Ahto claims that he was prevented from consulting an independent medical examiner regarding the additional records. Ahto further claims that since the State has prejudiced his substantial rights, he is entitled to a new trial.

¶39 The decision to grant or deny a motion for a new trial is within the sound discretion of the district court. This Court will not overturn a district court’s decision regarding a new trial absent a showing of manifest abuse of that discretion. Rasmussen v. Heebs Food Center (1995), 270 Mont. 492, 496, 893 P.2d 337, 339.

¶40 The District Court stated that Ahto, in his motion for new trial, did not provide a copy of the 17-page report or provide a detailed account of the report. In addition, the State indicated that it had no knowledge of the additional medical report. As a result, the District Court was unable to determine whether the report ever existed or whether Ahto was prejudiced as a result of his failure to receive the report before the trial.

¶41 Ahto argued at the District Court and maintains on appeal that the additional medical report directly related to injuries suffered by T.G. and to her statements to medical personnel concerning how the injuries were sustained. In addition, Ahto further contends on appeal that “at least one portion of the previously undisclosed medical records directly contradicts [T.G.j’s testimony at trial.” However, other than this vague allegation that T.G.’s testimony contradicts her statement to medical personnel, Ahto provides this Court with no more information regarding the medical report or its origin than he provided to the District Court. Nonetheless, Ahto requests that this Court remand the matter to the District Court for a hearing and findings of fact on the issue of the medical report.

¶42 The State maintains that the District Court did not abuse its discretion in denying Ahto’s motion for a new trial, therefore, this Court should not overturn the decision of the District Court. In support of its claim, the State cites State v. Sor-Lokken (1990), 246 Mont. 70, 803 P.2d 638. In Sor-Lokken, the defendant moved for a new trial, but failed to file a supporting brief. The trial court denied the defendant’s motion stating that there was insufficient information to support the motion. This Court held that, because the defendant failed to provide the district court with sufficient information, the district court did not abuse its discretion in denying the motion. Sor-Lokken, 246 Mont. at 79, 803 P.2d at 643-44.

¶43 Ahto’s case is dissimilar in that Ahto’s counsel provided the District Court with a brief in support of his motion. However, like Sor-Lokken, Ahto failed to provide sufficient information from which the District Court could assess prejudice to Ahto. With regard to Ahto’s motion for a new trial based on the State’s alleged failure to provide the medical report, the District Court specifically stated, “defense counsel has not supplied the Court with a copy of the alleged report or given a detailed account of the contents of said report in their brief. The State does not know what the report is either. Therefore, the Court is unable to determine whether the report ever existed or whether [Ahto] was prejudiced.” In light of Ahto’s failure to provide the District Court with sufficient information regarding his motion, this Court cannot conclude that the District Court abused its discretion in denying Ahto’s motion for a new trial.

¶44 In the alternative, Ahto asserts that he received ineffective assistance of counsel because his attorney failed to request a hearing to allow the District Court an opportunity to determine the relevance of the new medical report and whether Ahto was prejudiced by the alleged failure of the State to produce such records prior to trial. Ahto presents this Court with no supporting authority for his request for a new trial as a result of his counsel's failure to request an evidentiary hearing. Moreover, the lack of any record regarding this issue deprives this Court of an opportunity to review counsel’s performance. We determine that Ahto’s ineffective assistance of counsel claim must be rejected.

¶45 We conclude that Ahto presented the District Court with insufficient information to support his motion for a new trial and thus the District Court did not abuse its discretion in denying Ahto’s motion.

IV

¶46 4) Did the District Court abuse its discretion in denying Ahto’s motion for directed verdict for failure of the State to establish that the clipper cord constituted a weapon in accordance with § 45-2-101(76), MCA?

¶47 At the close of the State’s case-in-chief, Ahto moved fordirected verdict asserting that the State failed to present sufficient evidence by which the jury could find that the clipper cord constituted a “weapon” within the meaning of § 45-2-101(76), MCA. Furthermore, absent a showing that the cord constituted a weapon, Ahto maintained that he could not be convicted of felony assault in violation of § 45-5-202(2), MCA, because that section requires that the defendant purposely and knowingly cause bodily injury with a weapon.

¶48 In contrast, the State contends that it was only required to present evidence that the clipper cord was used in a way that it could be classified as a weapon, i.e., that it was readily capable of being used to produce death or serious bodily injury. The State maintains that it satisfied its burden of presenting such evidence; therefore, the District Court did not abuse its discretion in denying Ahto’s motion for directed verdict.

¶49 This Court reviews a district court’s denial of a defendant’s motion for directed verdict to determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307. At the close of the State’s case, the decision whether to direct a verdict lies within the sound discretion of the district court, this Court will not disturb that decision on appeal absent an abuse of discretion. Romannose, 281 Mont. at 88, 931 P.2d at 1307.

¶50 Section 45-2-202(2), MCA, the felony assault statute, provides that “[a] person commits the offense of felony assault if the person purposely or knowingly causes ... bodily injury to another with a weapon ....’’More specifically, § 45-2-101(76), MCA, defines “weapon” as “any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.” This Court has explained that the definition of weapon is broad enough to include any instrument that, although not dangerous per se, may be considered a weapon depending on its manner of use and the circumstances in which it is used. State v. Mummey (1994), 264 Mont. 272, 277, 871 P.2d 868, 871. This Court has found several instruments which are not traditionally dangerous to be weapons within the meaning of § 45-2-101(76), MCA. For example, in Mummey, 264 Mont. 272, 871 P.2d 868, this Court held that a tennis shoe was readily capable of causing serious bodily injury. In State v. Howard (1981), 195 Mont. 400, 637 P.2d 15, we upheld a finding that pantyhose, when used to strangle the victim, are a weapon within the meaning of the statute. Furthermore, in State v. Klemann (1981), 194 Mont. 117, 634 P.2d 632, we held that where a victim was struck repeatedly in the head with an ashtray, the ashtray constituted a weapon.

¶51 Whether an item constitutes a weapon for the purposes of satisfying the statute is a question of fact for the jury. Mummey, 264 Mont. at 277, 871 P.2d at 871. The jury in this case found Ahto guilty of felony assault. This Court will not overturn a jury verdict where there is substantial credible evidence in the record to support it. The test of whether sufficient evidence supports the jury’s decision is whether any rational trier of fact could have found that element beyond a reasonable doubt. Mummey, 264 Mont. at 277, 871 P.2d at 871. The State presented substantial credible evidence that the clipper cord was used as a weapon. First, the State presented evidence that T.G. was repeatedly whipped with the clipper cord for a period exceeding two hours. The State presented several photographs detailing the severe injuries that T.G. suffered as a result of being whipped. In addition, the testimony of Dr. Buchan established that the injuries suffered by T.G. were consistent with being whipped with an electrical cord. We determine that the jury could have found beyond a reasonable doubt that the clipper cord, when used as a whip, constituted a weapon within the meaning of § 45-2-101(76), MCA. The District Court did not abuse its discretion in denying Ahto’s motion for directed verdict. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and REGNIER concur.

JUSTICE TRIEWEILER

specially concurring.

¶52 With the exception of this Court’s reliance on State v. Mummey (1994), 264 Mont. 272, 871 P.2d 868, 1 concur with the majority opinion. Instead of being cited as authority, the Mummey decision should be given a decent burial at the very first opportunity.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. BYRON DEAN VICKERS and PATRICIA ELAINE VICKERS, Defendants and Respondents.
    No. 97-502.
    Submitted on Briefs April 16, 1998.
    Decided August 20, 1998.
    1998 MT 201.
    55 St.Rep. 859.
    290 Mont. 356.
    964 P.2d 756.

      For Appellant: Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena; Gerald Navratil, Dawson County Attorney, Scott W. Herring, Deputy Dawson County Attorney, Glendive.
    For Respondent: Lorraine A. Schneider, Simonton, Howe, Schneider, Glendive.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 On October 29, 1996, Byron Dean Vickers and Patricia Elaine Vickers (collectively the Vickers) were each charged by information in the Seventh Judicial District Court, Dawson County, with felony theft and several counts of felony and misdemeanor drug-related offenses. By order of the District Court, the two actions were joined. On January 15,1997, the Vickers filed a motion to suppress evidence seized pursuant to two search warrants issued on October 12 and 14,1996, claiming that the substitute justice of the peace who issued the warrants, Mitzi Barney, was not duly authorized to act as substitute justice of the peace. On June 11,1997, the District Court issued its memorandum and order granting the Vickers’ motion to suppress. The State of Montana (the State) appealed. We affirm the order of the District Court.

¶2 The sole issue on appeal is whether Mitzi Barney was duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14,1996 search warrants.

BACKGROUND

¶3 Robert A. Larsen (Judge Larsen) was the duly elected justice of the peace for Dawson County at all times pertinent to this action. Judge Larsen’s current term of office began in January 1995. Within thirty days after the commencement of his new term, Judge Larsen selected three persons, including Mitzi Barney (Barney), to serve as substitute justices of the peace in his absence. Although Judge Larsen did not memorialize his selections on a separate list as required by § 3-10-231(2), MCA, he submitted to the Commission on Courts of Limited Jurisdiction (Commission) written requests for waivers of training for the proposed substitutes in accordance with § 3-10-231(2), MCA, and Rule 5C, Commission Rules. The Commission approved the waiver of training for Barney on July 18,1995. On March 7, 1995, a written oath of office was administered to Barney pursuant to § 3-10-202(1) and -231(2), MCA. However, the oath administered to Barney did not exactly conform to the oath of office prescribed for judicial officers in Article III, Section 3 of the Montana Constitution, and § 3-10-202(1), MCA. The oath administered to Barney contained the same pledge to protect and defend the Constitutions of the United States and Montana, but omitted the pledge to “discharge the duties of my office with fidelity,” and replaced it with the pledge to “serve in the capacity of substitute Justice of the Peace or City Judge to the best of my abilities.”

¶4 On October 12,1996, Judge Larsen notified the Glendive Police Department dispatcher that he would be out of town October 12-14, 1996, and that either Wibaux County Justice of the Peace Bill Franks (Judge Franks), Prairie County Justice of the Peace Fran Fleckenstein (Judge Fleckenstein), or Mitzi Barney, could act as substitute justice of the peace in his absence. Judge Larsen did not call Judge Franks, Judge Fleckenstein, or Barney directly to request that they be substitute justices in his absence.

¶5 That same day, October 12,1996, Dawson County Sheriff’s Deputy Wally Peter (Deputy Peter) applied for a warrant to search the Vickers’ house for drug-related evidence and contraband. Deputy Peter first tried to contact Judge Franks without success. Deputy Peter then contacted Judge Fleckenstein. Judge Fleckenstein told Deputy Peter she had little experience with search warrant applications, and suggested that he call another justice of the peace with more experience in the area of search warrants. Deputy Peter then contacted Barney, who agreed to come to the courthouse to act as substitute justice of the peace. Barney reviewed Deputy Peter’s application and, finding probable cause to search, issued the search warrant.

¶6 Two days later, on October 14,1996, Deputy Peter applied for a second warrant to search the Vickers’ vehicles. For approval of the second warrant, Deputy Peter directly contacted Barney, without first trying to contact Judge Franks or Judge Fleckenstein. Barney reviewed the application and issued the second search warrant.

¶7 Execution of the two search warrants led to the seizure of five pounds of marijuana and methamphetamine, other drug-related contraband, and stolen property. The Vickers were each charged with several felony and misdemeanor drug offenses and felony theft. The Vickers filed a motion to suppress the evidence obtained during the two searches on the ground that Barney was not a duly authorized justice of the peace when she issued the search warrants.

¶8 The court granted the Vickers’ motion based on two procedural errors in securing the validity of the search warrants. First, the court found several procedural flaws in securing Barney’s authority to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and - 231, MCA, and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 391, 880 P.2d 1319, 1324. Second, the court found that Judge Larsen failed to use the proper method of calling in a substitute justice of the peace as prescribed by § 3-10-231, MCA, and Potter, 266 Mont. at 391, 880 P.2d at 1324. The court concluded that these procedural errors rendered the search warrants issued by Barney void ab initio. In reaching this conclusion, the court relied heavily on Potter. The court stated:

Action by substitute justices is strictly controlled .... The plain meaning interpretation of the statutes involved here is mandated, not merely directory.... The failure to have search warrants issued by a properly appointed, independent magistrate renders them void. While in the instant case, there was substantial compliance with the qualified requirements, it appears clear from the holding in Potter, supra, that only properly qualified persons may act as judges .... [T]he teachings oí Potter are clear: unless the statutory procedures and Commission Rules imparting judicial authority are faithfully honored, no such authority exists.... Judicial authority should not [sic] and is not easily given; “close enough” is an inappropriate and unacceptable standard. The authorization statute provides legitimacy to the court and justices, and serves to protect citizens’ rights. To meet these goals, the statute must be followed. (Citations omitted.)

DISCUSSION

¶9 Was Mitzi Barney duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14, 1996 search warrants?

¶10 This Court reviews a district court’s findings of fact regarding suppression hearing evidence to determine whether they are clearly erroneous. State v. Hermes (1995), 273 Mont. 446, 449, 904 P.2d 587, 588-89. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the District Court made a mistake. Hermes, 273 Mont. at 449, 904 P.2d at 589. We review a district court’s conclusions of law de novo to ensure that the court’s interpretation of the law was correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

¶11 We note at the outset that the Montana Legislature enacted significant amendments to § 3-10-231, MCA, effective March 25, 1997. See 1997 Mont. Laws, Ch. 150. These amendments were enacted in response to Potter, where we raised concerns regarding the efficacy of the statutory qualification procedures for substitute justices of the peace. 1997 Mont. Laws, Ch. 150; Potter, 266 Mont. at 394-95, 880 P.2d at 1326-27 (Turnage, C.J., concurring). The amendments to § 3-10-231, MCA, went into effect after the events giving rise to this action occurred, but before the District Court issued its ruling. We have held that the canon of statutory construction which states that courts should apply the law in effect at the time it renders its decision applies only to the application of judicial decisions, not to the application of statutes, ordinances, or regulations. Porter v. Galarneau (1996), 275 Mont. 174, 184-85, 911 P.2d 1143, 1149-50 (holding that pursuant to § 1-2-109, MCA, a statute is not retroactive unless expressly so declared). Because no clause appears in the 1997 amendments to § 3-10-231, MCA, making them retroactive, we must apply the pre-1997 version of § 3-10-231, MCA, to this case.

¶12 Montana law provides specific procedures for authorizing persons to act as a substitute justice of the peace. As of October, 1996, Montana law provided that before a person is legally qualified to serve as a substitute justice of the peace, the following criteria must be met:

1. Within 30 days of taking office, the elected justice of the peace must provide a list of persons qualified to act in the sitting justice’s absence when no other justice or city judge is available;
2. The persons listed must be of good moral character, and have community support, a sense of community standards, and a basic knowledge of court procedure;
3. The persons listed must receive a waiver of judicial training from the commission on courts of limited jurisdiction established by the Supreme Court; and
4. The persons listed must subscribe to the constitutional oath of office and file the oath with the county clerk.

Sections 3-10-231(2) and -202(1), MCA; Rule 5C, Commission Rules; Potter, 266 Mont. at 391, 880 P.2d at 1324.

¶ 13 Montana law also provides a particular procedure for calling in replacement justices. In Potter, we interpreted § 3-10-231(2), (3), and (4), MCA, to mean that a sitting justice of the peace must first attempt to call in another duly elected justice of the peace, if there is one readily available, or a city judge before calling in a substitute judge from the fist provided for in § 3-10-231, MCA. Potter, 266 Mont. at 391, 880 P.2d at 1324. Additionally, the law explicitly requires that the sitting justice of the peace make the call for a replacement. Section 3-10-231(3) and (4), MCA. If the sitting justice of the peace is unable to make the call for a replacement, then the county commissioners are authorized to make the call. Section 3-10-231(3) and (4), MCA.

¶ 14 The parties do not dispute that the second and third criteria of the authorization procedure for qualifying Barney to act as substitute justice of the peace were satisfied. The parties only dispute whether the first and fourth criteria of the authorization procedure were satisfied and whether the call-in procedure was satisfied.

¶ 15 The State argues that the authorization and call-in procedures outlined above were satisfied, and that Barney was vested with the authority to act as substitute justice of the peace when she issued the October 12 and 14, 1996 search warrants. Regarding the first criterion of the authorization procedure, the State argues that Judge Larsen’s written requests for waivers of judicial training for his three selected persons together constitute a “list” of qualified substitutes as contemplated by § 3-10-231(2), MCA. The State argues that by submitting the written waiver requests, Judge Larsen substantially complied with § 3-10-231(2), MCA.

¶16 Regarding the fourth criterion of the authorization procedure, the State concedes that Barney’s oath was not the official oath, but argues that the variance between the two oaths is immaterial. The State argues that Barney’s oath was sufficient because it contained the same pledge of constitutional fealty and faithful service as the official oath. In addressing Judge Larsen’s error in filing Barney’s written oath with the clerk of justice court instead of the county clerk as required by § 3-10-202(1), MCA, the State argues that nothing in § 3-10-231, MCA, or Potter requires that a substitute justice’s oath be filed. The State argues alternatively that even if this Court decides that filing the oath is a prerequisite for authorizing substitute justices of the peace under § 3-10-231, MCA, or Potter, the filing of Barney’s oath with the clerk of justice court effected substantial compliance.

¶17 Regarding the call-in procedure, the State asserts that Judge Larsen’s notification to law enforcement of his absence, and his directive that they call either Judge Franks, Judge Fleckenstein, or Barney, satisfied the call-in procedure announced in Potter. The State provides no analysis for this assertion other than stating that under a substantial compliance analysis, whether Judge Larsen, the police dispatcher, or Deputy Peter made the call for a replacement judge is immaterial so long as the call was made at Judge Larsen’s directive.

¶18 A common thread within each of the State’s arguments is the substantial compliance argument. The State does not dispute the rule of Potter that one is vested with the authority to act as substitute justice of the peace only if all criteria of the authorization procedure are followed. Potter, 266 Mont. at 393, 880 P.2d at 1325. However, the State disputes the degree to which the criteria must be followed. The State contends that substantial compliance with §§ 3-10-202(1) and -231, MCA, is sufficient to vest one with the authority to act as substitute justice of the peace, and offers several arguments in support of its position.

¶19 First, the State argues that nowhere in Potter did this Court mandate a strict compliance test for evaluating whether one has met the authorization and call-in procedures of §§ 3-10-202(1) and -231, MCA. The State argues that the District Court erroneously pursued a “hyper technical” and overreaching interpretation of Potter, and, in so doing, supplied additional, more severe procedural requirements not mentioned in Potter. The State argues that because the District Court misinterpreted Potter, its reliance on Potter for the conclusion that Barney was not duly authorized to act as substitute justice of the peace was misplaced. Further, the State distinguishes Potter from the instant case, arguing that in Potter, the procedure used to authorize the substitute justice of the peace “was flawed in almost every respect,” thus, due to the extreme degree of non-compliance, there was no question that the authorization statute had been violated. Potter, 266 Mont. at 392, 880 P.2d 1324-25. The State argues that in the instant case, the procedure used to authorize Barney substantially complied with all criteria set forth in §§ 3-10-202(1) and -231, MCA. Because the two cases are distinguishable, the State argues that nothing in Potter precludes this Court from ruling that Barney met the authorization and call-in procedures specified in §§ 3-10-202(1) and -231, MCA.

¶20 Next, the State argues that although this Court in Potter implicitly characterized the § 3-10-231, MCA, authorization criteria as mandatory rather than directory, see Potter, 266 Mont. at 390-92, 880 P.2d 1323-24, such a characterization does not necessitate strict compliance with the statute. As support for this assertion, the State cites a multitude of cases involving jurisdictional issues where this Court has applied varying compliance standards. Compare Rambur v. Diehl Lumber Co. (1964), 143 Mont. 432, 433, 391 P.2d 1, 2 (referring to Art. VIII, Secs. 2, 3, and 15, Mont.Const. and RCM 1947, § 93-8003, the Court stated, “[T]he Legislature has enacted statutes providing how appeals may be taken and substantial compliance with these provisions is necessary to give this [Cjourt the right to exercise the jurisdiction granted.”) with State v. Ward (1994), 266 Mont. 424, 427, 880 P.2d 1343, 1345 (“This Court has consistently held that strict compliance with [§ 46-17-311, MCA, the statute governing appeals from justice or city court] is necessary to perfect an appeal.”). Additionally, the State cites several cases involving mandatory statutory provisions where this Court has held that the vesting of jurisdiction may be evaluated by a substantial compliance standard. See Gregory v. City of Forsyth (1980), 187 Mont. 132, 135, 609 P.2d 248, 250 (holding that “since the jurisdiction of a city to extend its boundaries is a special power, conferred by the legislature, substantial compliance with all the mandatory requirements of statutory law is essential”).

¶21 Lastly, the State argues that technical errors in the authorization and call-in procedures for substitute justices of the peace should not operate to suppress evidence. As support for its argument, the State cites United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, wherein the United States Supreme Court faced the question of whether the exclusionary rule applied to evidence seized pursuant to a search warrant subsequently determined to be invalid for lack of probable cause, but which officers executed in reasonable, good-faith reliance on its validity. Leon, 468 U.S. at 900, 104 S.Ct. at 3409. The United States Supreme Court decided the question in the negative creating what has been termed the good-faith exception to the exclusionary rule. Leon, 468 U.S. at 922-25, 104 S.Ct. at 3420-22. The Court based its decision on several factors, including the absence of any remedial effect in applying the exclusionary rule under the facts of that case. The Court stated:

[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.
[T]o the extent that the [exclusionary] rule is thought to operate as a systemic deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors ....

Leon, 468 U.S. at 917, 104 S.Ct. at 3417.

¶22 The State asserts that the instant case is analogous to Leon in that the invalidity of the warrant was due to flaws in its issuance, not to any flaw in its execution by law enforcement. The State urges this Court to apply the reasoning employed in Leon to the instant case and hold that because no remedial purpose would be served, the exclusionary rule does not work to invalidate a search warrant where the procedures used to secure the search warrant effected substantial compliance with the authorization statute.

¶23 We reject all of the State’s arguments relating to substantial compliance. First, the State’s reliance on Leon is misplaced. In Leon, the basic inquiry was whether the purpose of the exclusionary rule would be served in suppressing evidence seized pursuant to a search warrant issued by a judge who mistakenly thought that the warrant was supported by probable cause. Leon, 468 U.S. at 905-22, 104 S.Ct. at 3411-22. In contrast, the basic inquiry in the instant case is not whether the purposes of the exclusionary rule would be served by invalidating the search warrants, but whether Barney had the authority to issue the search warrants at all. See Potter, 266 Mont. at 392, 880 P.2d at 1325. We have held that failure to have search warrants issued by a properly appointed judge renders them void ab initio, of no force or effect. Potter, 266 Mont. at 393, 880 P.2d at 1325. If a search warrant is void ab initio, the inquiry stops and all other issues pertaining to the validity of the search warrant, such as whether the purpose of the exclusionary rule is served, are moot.

¶24 Second, the State’s argument that this Court has upheld the substantial compliance standard before to cases involving jurisdictional issues is unpersuasive. Not one of those cases involved the authorization and call-in requirements for substitute justices of the peace. Moreover, our review of those cases in which we stated “substantial compliance with these provisions is necessary,” or words similar in effect, reveals that we never articulated what exactly “substantial” compliance is. In many of those cases, the word “substantial” could have been replaced with “strict” with no change in the outcome of the case. See Rambur, 143 Mont. at 433, 391 P.2d at 2 (Court employed a substantial compliance analysis and dismissed an appeal from an order granting motion to dismiss on the ground that “R.C.M.1947, § 93-8003, specifies the orders from which an appeal may be taken and an order sustaining a motion to dismiss is not one of them.”).

¶25 The State urges this Court to hold that substantial compliance with the authorization and call-in procedures for substitute justices of the peace is sufficient. In Potter, we held:

Unless the procedures required by [§ 3-10-231, MCA] and the Commission Rules are followed, then no substitute justice is appointed, and the person seeking to exercise the powers of a judge as his substitute has no authority or jurisdiction to do so. That person is, quite simply, not a judge ....

Potter, 266 Mont. at 393, 880 P.2d at 1325. We determine that “follow” means follow in the plain meaning sense of the word. Clearly, the procedures for authorizing and calling in a substitute justice of the peace were not followed in the instant case.

¶26 The record shows that Judge Larsen failed to create a list of proposed substitutes as required by § 3-10-231, MCA. We do not agree with the State that submitting the written waiver request forms for proposed substitutes was functionally equivalent to creating a list. In construing § 3-10-231, MCA, we must give effect to all of its provisions and particulars. Section 1-2-101, MCA. Section 3-10-231, MCA, specifically requires the creation of a list in addition to the submission of requests for waivers of training. To give effect to both provisions, we hold that one is not the functional equivalent of the other.

¶27 Next, the constitutional oath of office was not properly administered to Barney. We do not believe that the pledge to “discharge the duties of my office with fidelity” is the same as the pledge to “serve in the capacity of substitute Justice of the Peace or City Judge to the best of my abilities.” We believe the complete omission of one pledge and replacement with another is a major discrepancy in the authorization procedure. Further, Barney’s oath of office was not filed with the county clerk pursuant to § 3-10-202(1), MCA. Again, we do not view filing the oath with the justice court clerk functionally equivalent to filing it with the county clerk. The State concedes that the statutory intent of filing is notice. Someone searching for a substitute’s oath would presumably inquire at the county clerk’s office because that is the place where it is required to be filed. We fail to see how the purpose of notice is served by filing the oath in a place where no one expects it to be filed.

¶28 Lastly, Judge Larsen’s notification to law enforcement of his absence, and bis directive that they call either Judge Franks, Judge Fleckenstein, or Barney, failed to satisfy the call-in procedure articulated in § 3-10-231, MCA, and Potter. If an elected justice of the peace is readily available, he or she must be called to act by the justice for whom the replacement is needed. Section 3-10-231(3) and (4), MCA; Potter, 266 Mont. at 391, 880 P.2d at 1324. Judge Larsen did not call and designate another justice of the peace to assume jurisdiction in his absence. Rather, Judge Larsen simply provided law enforcement with a “menu” of substitutes from which to choose. This procedure clearly violates § 3-10-231, MCA, and encourages “judge-shopping.” We cannot condone such a practice. Moreover, we have held that in finding a replacement judge, an elected justice of the peace or a city judge must be called before a substitute justice of the peace from the list provided for in § 3-10-231, MCA, is called. Potter, 266 Mont. at 391, 880 P.2d at 1324. In securing the October 14, 1996 search warrant, law enforcement made no attempt to call an elected justice of the peace before calling Barney. Again, this procedure clearly violates the rule announced in Potter.

¶29 We hold that the District Court’s finding that Barney was not a duly authorized justice of the peace when she issued the October 12 and 14,1996 search warrants was supported by substantial evidence and, therefore, was not clearly erroneous. We hold that the District Court correctly interpreted the law in concluding that Barney was not a duly authorized justice of the peace, and that the search warrants were void ab initio.

¶30 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER and REGNIER concur.


author: CHIEF JUSTICE TURNAGE

text:
    JIM & TRACY’S ALIGNMENT, INC., Plaintiff and Respondent, v. KEITH SMITH, Defendant and Appellant.
    No. 98-116.
    Submitted on Briefs June 25, 1998.
    Rehearing Denied October 1, 1998.
    Decided August 24, 1998.
    1998 MT 203.
    55 St.Rep. 865.
    290 Mont. 368.
    966 P.2d 731.

      For Appellant: Keith Warren Smith, Pro Se, Roundup.
    For Respondent: R. Russell Plath, Halverson, Sheehy and Plath, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 Jim & Tracy’s Alignment, Inc., brought this action in the Thirteenth Judicial District Court, Yellowstone County, to collect a bill for repairs on Keith Smith’s pickup truck. The action was dismissed on Jim & Tracy’s motion after the repair bill was paid. Smith appeals. We affirm.

¶2 Smith sets forth fifteen issues on appeal. As discussed more fully below, the only substantive issue properly before this Court is whether the District Court abused its discretion in granting the motion to dismiss.

Background

¶3 Jim & Tracy’s initial complaint in this action was filed in September 1997, to collect a bill for repair of Smith’s pickup truck. The complaint mistakenly identified Smith’s truck as a 1985 GMC; the model year was actually 1986. In response to the complaint, Smith, appearing pro se, filed a demand for jury trial, an unsupported motion to dismiss, a motion for leave to proceed in forma pauperis, and a motion for substitution of judge. The District Court denied Smith’s in forma pauperis motion. This Court reversed that denial on Smith’s application for supervisory control and remanded for further proceedings including substitution of judge.

¶4 On remand, the presiding judge was substituted. Smith filed a brief and affidavit in support of his earlier motion to dismiss, stating that he had at no time owned the vehicle described in the complaint. Jim & Tracy’s then moved to be allowed to amend its complaint to give the correct model year for Smith’s pickup. Smith opposed that motion and moved for Rule 11, M.R.Civ.R, sanctions against Jim & Tracy’s on grounds that they had falsely certified that reasonable inquiry into the facts was made before they filed their complaint.

¶5 The court granted Jim & Tracy’s leave to file an amended complaint, and an amended complaint was filed indicating the correct model year for Smith’s truck. Smith then moved for more definite statement under Rule 12(e), M.R.Civ.R, and for Rule 11, M.R.Civ.R, sanctions on grounds that one of Jim & Tracy’s briefs contained an improper citation to a nonpublished case. Jim & Tracy’s opposed Smith’s motion for more definite statement, arguing that the information requested by Smith could be obtained through discovery after he filed an answer to the complaint, which he had not yet done. It opposed Smith’s second request for sanctions on grounds that the unpublished case was a related case and was cited only to show that the presiding judge had knowledge of Smith’s financial status for purposes of deciding his in forma pauperis motion. On December 11, 1997, Smith filed a reply brief and a notice for hearing on his pending motions to be held on January 7,1998.

¶6 On the same day, Jim & Tracy’s moved to dismiss its amended complaint pursuant to Rule 41, M.R.Civ.R, because Smith’s bill had been paid in full. On December 15,1997, the District Court granted the motion to dismiss, vacated the hearing set for January 7, 1998, and ordered that “THE ABOVE-ENTITLED MATTER IS CLOSED AND NO FURTHER DOCUMENTS CAN BE FILED OR ALLOWED TO BE FILED IN THIS ACTION.”

¶7 Smith filed a second application for writ of supervisory control with this Court. We granted supervisory control to the extent of stating that Smith could not be denied his right to file a notice of appeal, but denied the application to all further extent. Smith appeals.

Discussion

¶8 This Court does not generally rule on moot questions. A moot question is one which existed once but no longer presents an actual controversy. Ruckdaschel v. State Farm (1997), 285 Mont. 395, 396, 948 P.2d 700, 701. Smith states as one of his issues on appeal that the District Court erred in initially denying him leave to defend the case without prepayment of fees. That issue was resolved in his favor as a result of his first application for writ of supervisory control and is now moot. There is no reason to consider it further.

¶9 Smith states as another issue that lawyers are held to higher standards in filing court papers than are nonlawyers. He does not connect this statement to the record, and this was not a matter relied upon by the District Court in granting dismissal. We conclude that this is not an issue and decline to consider it further.

¶ 10 Smith sets forth three issues relating to Jim & Tracy’s citation, in a brief, to this Court’s nonpublished opinion in Smith’s appeal of a prior District Court case to which he was a party. Smith argues that Jim & Tracy’s should have been sanctioned by the District Court and by this Court for that citation to an unpublished opinion.

¶11 Review of the record reveals that Jim & Tracy’s reference to this Court’s opinion in the prior case was solely for purposes of explaining that the District Court had prior information on Smith’s financial status, in relation to his application to be allowed to appear in forma pauperis. The case was not cited as legal authority, and its citation was in no way improper. The District Court did not err in failing to award sanctions for that citation.

¶12 The District Court’s order dismissing this case under Rule 41(a), M.R.Civ.P, is the proper focus of this appeal. Our standard of review of that order granting voluntary dismissal is whether the trial court abused its discretion. Harwood v. Glacier Elec. Coop., Inc. (1997), 285 Mont. 481, 486, 949 P.2d 651, 654.

¶13 Rule 41(a), M.R.Civ.P., provides in relevant part:

(2) By order of court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Because Smith had not filed an answer to Jim & Tracy’s complaint, no motion for summary judgment was, or could have been, made. The remaining question is whether Smith had pleaded a counterclaim which precluded dismissal of the complaint.

¶14 Smith sets forth several issues in his brief to this Court which may be construed to imply that he had counterclaims pending when the District Court dismissed this action. He maintains the court erred in dismissing the action before the expiration of the time statutorily allowed him to answer the motion for dismissal. Smith also alleges that the District Court erred in not dismissing the complaint upon his motion and in not sanctioning Jim & Tracy’s for filing a frivolous complaint; that Jim & Tracy’s maliciously prosecuted him by filing malicious original and amended complaints and by delaying in moving to dismiss its complaint; and that the initial denial of his motion to be allowed to proceed in forma pauperis established prejudice against him in the courts of Yellowstone County.

¶15 Although Smith lists all of the above as issues on appeal, a thorough review of the District Court file does not reveal any document that can be considered as a counterclaim for purposes of preventing dismissal under Rule 41(a), M.R.Civ.P. Only two documents in the District Court file even remotely hint at counterclaims. The first is Smith’s brief in opposition to Jim & Tracy’s motion to be allowed to amend the complaint, which states, “Registration papers and personal belongings of Defendant which, along with a 1986 GMC pickup were detained against interests by Plaintiff in violation of repealed mechanic lien statutes, contained the correct information.” Smith’s request for relief in that document was that the District Court deny the motion to amend and for sanctions. The second document which hinted at a counterclaim was Smith’s reply brief to Jim & Tracy’s response to Smith’s motion for more definite statement. In that document, Smith stated:

[I]t still is in the best interest of all concerned to obtain at this time all other information requested by Defendant, since he needs it to properly compose affirmative defenses, counterclaims, third party complaints and joinder of additional parties.
Defendant believes in good faith ... that violations of criminal and civil statutes likely took place, pertaining to a pickup he at one time owned. These include, but are not restricted to detainer, vehicle theft, theft of property from a motor vehicle, fraud, driving of a vehicle without owner’s permission, et al.

Smith asked the court to order Jim & Tracy’s to issue a more definite statement, “and for all other relief as may be granted in the interests of curing INFECTIOUS INJUSTICE TM.”

¶ 16 A pleading which sets forth a claim for relief, such as a counterclaim, must contain a short and plain statement of the claim and a demand for judgment for the relief sought. Rule 8(a), M.R.Civ.R The above documents seem to indicate an intent on the part of Smith to file counterclaims in the future, but neither of them establishes a pleaded counterclaim for purposes of notice to Jim & Tracy’s that a counterclaim had been filed. Even a liberal approach to pleading would not recognize Smith’s statements as a counterclaim.

¶17 Having thus concluded that no counterclaims were filed in this case, we hold that the District Court did not abuse its discretion in dismissing Jim & Tracy’s complaint against Smith under Rule 41(a), M.R.Civ.R, on grounds that the amount due had been paid. We affirm the District Court’s order of dismissal.

JUSTICES NELSON, TRIEWEILER, HUNT and LEAPHART concur.


author: JUSTICE NELSON

text:
    JEANNIE CAMPBELL, Plaintiff and Appellant, v. BOZEMAN INVESTORS OF DULUTH, a Minnesota Limited Partnership, d/b/a HOLIDAY INN OF BOZEMAN; and PATRICK N. LUND, Defendants and Respondents.
    No. 97-317.
    Submitted on Briefs October 9, 1997.
    Decided August 24, 1998.
    1998 MT 204.
    55 St.Rep. 868.
    290 Mont. 374.
    964 P.2d 41.

      For Appellant: Stephen C. Pohl, Bozeman.
    For Respondent: William M. O’Leary, Corette Pohlman Allen Black & Carlson, Butte.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Jeannie Rosseland Campbell (Campbell) brought an action in the District Court for the Eighteenth Judicial District, Gallatin County, to recover damages from Bozeman Investors of Duluth d/b/a Holiday Inn of Bozeman and Patrick Lund for personal injuries she sustained in a motor vehicle collision. Two of Campbell’s attorneys in this action, Channing Hartelius (Hartelius) and Gregory Morgan (Morgan), filed a Notice of Lien claiming entitlement, from the proceeds of Campbell’s claim, to payment of their costs and attorney fees as well as reimbursement for advances made to Campbell. The District Court found the lien to be valid and awarded judgment in favor of Hartelius and Morgan. From this judgment Campbell appeals; Hartelius and Morgan cross-appeal. We affirm.

¶2 The issues, as framed by this Court, are:

¶3 1. Whether the District Court erred in concluding that Hartelius and Morgan are entitled to attorney fees totaling $8800.

¶4 2. Whether this Court may consider the medical report of Dr. Peter Wendt.

¶5 3. Whether the District Court erred in failing to require that Campbell reveal the amount she received as settlement of her claim.

Factual and Procedural Background

¶6 On December 3,1992, Campbell was seriously injured when her vehicle collided with a van operated by Patrick Lund (Lund). The van was owned by Lund’s employer, Bozeman Investors of Duluth d/b/a the Holiday Inn of Bozeman (Bozeman Investors). Bozeman Investors’ insurer paid Campbell for the damage to her vehicle as well as $4,000 to $5,000 of her medical bills.

¶7 In January 1994, Bozeman Investors’ insurer made an unsolicited offer to settle Campbell’s claim for the sum of $22,000, less the amounts already paid for medical care and for the damage to Campbell’s vehicle. Campbell, who had not yet consulted a physician to determine the extent of the injuries to her back, rejected the offer. On April 29,1994, Campbell filed a personal injury action against Lund and Bozeman Investors.

¶8 Campbell had retained Stephen Pohl (Pohl) to represent her in her personal injury action. However, when Campbell separated from her husband in November 1994, she perceived that there existed a possible conflict of interest with Pohl as Campbell had originally been referred to Pohl by Campbell’s mother-in-law for whom Pohl had performed legal services.

¶9 Consequently, on December 8,1994, Campbell entered into a contingent fee agreement with Hartelius and Morgan to render legal services in her suit against Bozeman Investors. The agreement provided that Campbell was to pay Hartelius and Morgan “33 -1/3% OF ANY SETTLEMENT OBTAINED IN SAID CASE IF SAME IS SETTLED AT ANY TIME PRIOR TO INSTITUTING SUIT AND 40% OF ANY SETTLEMENT OBTAINED IN SAID CASE IF SAME IS SETTLED AT ANY TIME AFTER INSTITUTION OF SUIT.” Pohl provided a complete copy of Campbell’s file to Hartelius and Morgan and agreed to wait until the case was resolved to receive reimbursement for costs he expended on Campbell’s behalf. Hence, on April 19, 1995, Hartelius and Morgan were substituted as counsel of record.

¶10 By this time, Campbell had quit her job and was attending physical therapy on a regular basis. She was also receiving treatment from a surgeon in Billings and was looking into going to a specialist in Minnesota to determine whether she required back surgery.

¶11 In April 1995, counsel for Bozeman Investors deposed Campbell. Although neither Hartelius nor Morgan met with Campbell in person before her deposition, Hartelius spoke with her on the phone and attended the deposition. It was determined at the deposition that Bozeman Investors had not been provided with copies of all of Campbell’s medical records.

¶12 In June 1995, Campbell was examined by Dr. Michael Smith, an orthopedic surgeon in Minneapolis, Minnesota. Dr. Smith indicated that he would perform the necessary surgery on Campbell’s back. However, in August 1995, Campbell learned that Medicaid would not pay for an operation performed out-of-state, thus she was forced to seek another surgeon. Campbell contacted Dr. Greg McDowell, a Billings orthopedist, who agreed to perform the surgery.

¶13 During this time, Campbell was experiencing financial difficulties since she was not working and had not received any further payments for her medical bills from Bozeman Investors. She had applied for Social Security disability benefits, but was turned down on December 1,1995. Consequently, Hartelius obtained approval from this Court to loan money to Campbell for her living expenses. To that end, Hartelius loaned her $2,745.29.

¶14 On May 6,1996, Campbell sent a letter to Hartelius and Morgan expressing dissatisfaction with their services and discharging them. Campbell later testified that she became dissatisfied with Hartelius and Morgan because they never wrote to Bozeman Investors’ insurer requesting an advance payment for medical costs for surgery, did not request that a trial date be set, and did not adequately advise her about obtaining Social Security disability benefits. Hence, on June 6, 1996, Campbell filed a motion for substitution of counsel, requesting that Pohl be substituted as attorney of record in place of Hartelius and Morgan. The court granted her motion on June 25,1996.

¶15 After they were dismissed by Campbell, Hartelius and Morgan refused to turn over her file to Pohl. On July 11,1996, they filed a Notice of Lien claiming entitlement from the proceeds of Campbell’s claim against Bozeman Investors for payment of their costs and attorney fees and requesting reimbursement for the money they had advanced her.

¶16 On October 22,1996, Campbell was examined at the request of Bozeman Investors’ attorney by Dr. Peter Wendt, an orthopedic surgeon practicing in Anaconda. A settlement conference was held in December 1996, at the conclusion of which Campbell’s personal injury claim against Bozeman Investors was settled. In accordance with the terms of the settlement, the amount of the settlement was kept confidential. On April 3, 1997, a Stipulation and Order of Dismissal was filed by Campbell and Bozeman Investors and the District Court entered its order dismissing with prejudice Campbell’s claim against Bozeman Investors.

¶17 After the settlement of Campbell’s claim, Hartelius and Morgan were reimbursed for the full amount of the costs and advances as itemized in their Notice of Lien, but they did not receive any payment for attorney fees. Instead, Campbell filed a motion for determination of attorney fees and for the release of the lien. At the January 13,1997 hearing on this motion, both Campbell and Hartelius presented sworn testimony.

¶18 On March 5, 1997, the District Court entered its Findings of Fact and Conclusions of Law wherein the court determined that Hartelius was entitled to a fee of $6,600 and that Morgan was entitled to a fee of $2,200. The court entered judgment in accordance with these findings and conclusions on March 14,1997.

¶19 Campbell appeals from the District Court’s judgment regarding attorney fees and Hartelius and Morgan cross appeal.

Issue 1.

¶20 Whether the District Court erred in concluding that Hartelius and Morgan are entitled to attorney fees totaling $8800.

¶21 The District Court concluded that a client’s right to discharge an attorney employed under a contingency fee contract is an implicit term of the contract and the client’s discharge of the attorney, with or without cause, does not constitute a breach of that contract. The court further concluded that a client who discharges an attorney employed under a contingency fee contract for cause has no obligation to pay a fee to that attorney unless the attorney has substantially performed the services for which he was retained.

¶22 On that basis, the court determined that Campbell had not breached the contract by discharging Hartelius and Morgan. Moreover, the court determined that although Hartelius and Morgan were discharged for cause, they substantially performed the services for which they were retained prior to their discharge. Therefore, they were entitled to a fee limited to the reasonable value of their services. Thus, the court awarded $6600 to Hartelius and $2200 to Morgan.

¶23 The standard ofreview of a district court’s conclusions oflaw is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

¶24 First, we must determine whether, as Hartelius and Morgan contend, a client’s discharge of his or her attorney is a breach of contract thus entitling the attorney to contract damages. We hold that it is not and does not.

¶25 In 1916, theNew York Court ofAppeals held that a contract under which an attorney is employed by a client has peculiar and distinctive features which differentiate it from ordinary contracts of employment, thus a client may, at any time for any reason or without any reason, discharge his or her attorney. Martin v. Camp (N.Y. 1916), 114 N.E. 46, 47-48, modified 115 N.E. 1044. Thus, the court reasoned that if the client has the right to terminate the relationship of attorney and client at any time without cause, the client cannot be compelled to pay damages for exercising a right which is an implied condition of the contract. Martin, 114 N.E. at 48. The court held that although the attorney may not recover damages for breach of contract, the attorney may recover the reasonable value of the services rendered. Martin, 114 N.E. at 48.

¶26 A majority of jurisdictions have since adopted the “client discharge rule” as set forth in Martin. (For a list of these jurisdictions, see Lester Brickman, Setting the Fee when the Client Discharges a Contingent Fee Attorney (Spring 1992), 41 Emory L.J. 367 n.37.) One such jurisdiction noted:

The attorney-client relationship is one of special trust and confidence. The client must rely entirely on the good faith efforts of the attorney in representing his interests. This reliance requires that the client have complete confidence in the integrity and ability of the attorney and that absolute fairness and candor characterize all dealings between them. These considerations dictate that clients be given greater freedom to change legal representatives than might be tolerated in other employment relationships.

Rosenberg v. Levin (Fla. 1982), 409 So.2d 1016, 1021. Another jurisdiction stated the following regarding the payment of damages for exercising the right to discharge an attorney:

To allow an attorney to recover damages for services not actually rendered prior to termination of the attorney-client relationship would penalize the client in direct contravention of the client’s absolute right to discharge his attorney.
The right to discharge is obviously meaningless if the client is penalized by having to pay for services that have not been rendered. The client could conceivably be required to pay duplicate charges consisting of fees to the discharged attorney for services not rendered, in addition to those incurred by a newly appointed attorney for the same work.

Olsen and Brown v. City of Englewood (Colo. 1995), 889 P.2d 673, 676-77 (citations omitted).

¶27 Finding considerable merit in the “client discharge rule” as expressed in Martin,Rosenberg, and Olsen, we follow those jurisdictions in holding that the discharge of an attorney by a client is not a breach of contract and does not give rise to contract damages. Therefore, we affirm the District Court on this issue.

¶28 We next must determine whether Hartelius and Morgan are entitled to a fee and on what basis that fee, if any, should be determined. The District Court concluded that Hartelius and Morgan were discharged for cause, however, they substantially performed the services for which they were retained and are thus entitled to a fee based on the reasonable value of the services rendered. Campbell alleges error in the court’s determination arguing instead that this Court should formally adopt a rule that an attorney discharged for cause is not entitled to any fee. She contends that we endorsed a similar rule in Bink v. First Bank West (1991), 246 Mont. 414, 804 P.2d 384. However, Campbell’s reliance on Bink is misplaced.

¶29 In Bink, we remanded the case to the district court for an evidentiary hearing to determine whether the client discharged his attorney for cause and to determine the amount of attorney fees and costs. We did not, as Campbell suggests, endorse any rule espousing the idea that an attorney discharged for cause is not entitled to a fee and we decline to adopt such a rule now.

¶30 Instead, we agree with those jurisdictions that hold that regardless of whether an attorney was discharged with or without cause, that attorney is entitled to a quantum meruit recovery for the reasonable value of his services rendered to the time of discharge. Fracasse v. Brent (Cal. 1972), 494 P.2d 9, 14-15. We note one exception to this general rule, however-situations where the discharge occurs “on the courthouse steps,” just prior to settlement and after much work by the attorney. In those cases some reviewing courts have, on appropriate facts, found that the entire fee was the reasonable value of the attorney’s services. Fracasse, 494 P.2d at 14. Here, however, Hartelius and Morgan were not discharged “on the courthouse steps,” and, accordingly, we need not address this exception. Rather, the general quantum meriut rule applies.

¶31 Moreover, in the case sub judice, because we have determined that the general rule applies, it is not necessary for us to entertain a discussion of the reasons why Campbell discharged Hartelius and Morgan or whether those reasons constituted “cause.” Rather, we review whether the District Court was correct in concluding that the reasonable value of the services rendered by Hartelius and Morgan was $6600 and $2200, respectively.

¶32 Hartelius testified at the hearing that he does not normally record his time in contingency fee cases, so he had to reconstruct the time he spent on the case. Thus, he estimated that he spent at least 100 hours on the case, his paralegal spent an additional 50 hours on the case and Morgan spent 22 hours on the case. At the conclusion of the hearing, the parties stipulated that the attorney fees on an hourly basis for Hartelius and Morgan would be $110.

¶33 Campbell contends that there was no evidence presented at the hearing to demonstrate the value of the services Hartelius and Morgan performed, thus the evidence was insufficient to award them any fee. Moreover, she contends that the fee should be based on the reasonable value to her of their services. She argues that, because Hartelius and Morgan did not turn her file over to her after she discharged them, their services did not benefit her in the settlement of her case and that her case was settled mainly on the basis of a report from a doctor with whom Hartelius and Morgan had no involvement.

¶34 “The amount fixed as attorney fees is largely discretionary with the District Court, and we will not disturb its judgment in the absence of an abuse of that discretion.” Talmage v. Gruss (1983), 202 Mont. 410, 412, 658 P.2d 419, 420 (citing Carkeek v. Ayer (1980), 188 Mont. 345, 347, 613 P.2d 1013, 1015). Additionally, we stated in Talmage that the question in determining whether the trial court abused its discretion, is not whether we agree with the trial court, but rather,

did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.

Talmage, 202 Mont. at 412, 658 P.2d at 420 (quoting Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541). Moreover, in First Security Bank of Bozeman v. Tholkes (1976), 169 Mont. 422, 429-30, 547 P.2d 1328, 1332, we set forth several guidelines for a trial court to consider in determining the amount to be awarded as reasonable attorney fees:

the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys.... The result secured by the services of the attorneys may be considered as an important element in determining their value.

¶35 We hold that, in the case before us, the District Court did not act arbitrarily, exceed the bounds of reason or ignore recognized principles in determining the amount of attorney fees to be awarded to Hartelius and Morgan. In its Findings of Fact Nos. 27 and 28, the District Court set forth ten specific instances in the record evidencing work performed by Hartelius and Morgan on Campbell’s behalf prior to their discharge. The court then applied those facts to the guidelines set forth in Tholkes in determining the amount to be awarded as reasonable attorney fees. Furthermore, contrary to Campbell’s contention, the court did not award attorney fees based solely on Hartelius’ estimate of the number of hours he worked on the case or for the hours he estimated his paralegal worked on the case. Rather, the court determined that a reasonable fee for Hartelius was $6600. Based on the hourly fee of $110 stipulated to by the parties, the court determined that it was reasonable for Hartelius to have put in 60 hours on Campbell’s case.

¶36 Accordingly, we hold that the District Court did not abuse its discretion in awarding attorney fees to Hartelius in the amount of $6600 and to Morgan in the amount of $2200.

¶37 Having reached this decision, we are, nonetheless, compelled to address one further troubling aspect of this issue — the failure of Hartelius and Morgan, after their discharge by Campbell, to turn Campbell’s file over to either Campbell or Pohl.

¶38 In 1988, the Ethics Committee of the State Bar of Montana issued an opinion asserting that client files belong to the client and that if representation is ongoing and the lawyer is discharged, that lawyer must still protect the client’s interests and surrender papers and property to successor counsel. Ethics Committee of the State Bar of Montana, Formal Op. 880218 (1988). While ethics opinions are advisory only and are not authoritative pronouncements of the law, this opinion is significant. In making its determination, the Ethics Committee relied on Rule 1.16(d) of the Montana Rules of Professional Conduct which provides, in pertinent part:

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... surrendering papers and property to which the client is entitled....

¶39 Campbell argues that she was prejudiced by the failure of Hartelius and Morgan to turn her file over to her because she was without the benefit of the information in the file during settlement negotiations. Hartelius and Morgan contend that Campbell was not prejudiced by their refusal to turn over her file and that their refusal to do so was justified by their possessory lien. We see no justification for failing to return to a client at the time of discharge, papers or property that rightfully belong to the client. Campbell’s claim was still ongoing and by retaining her file, Hartelius and Morgan failed to protect her interests.

Issue 2.

¶40 Whether this Court may consider the medical report of Dr. Peter Wendt.

¶41 Several months after Campbell discharged Hartelius and Morgan, Campbell was examined, at the request of Bozeman Investors’ attorney, by Dr. Peter Wendt, an orthopedic surgeon practicing in Anaconda. In his report, Dr. Wendt rendered several opinions that were favorable to Campbell and to the issues in her case. Shortly after Dr. Wendt issued his report, a settlement conference was held at the conclusion of which Campbell’s personal injury case was settled.

¶42 Hartelius and Morgan contend that Dr. Wendt’s report should not be considered as part of the record on appeal as it was submitted after the hearing and is irrelevant to the issues of termination of services or the amount of the fee earned. However, as Campbell points out, since she did not have a copy of the report at the hearing, the parties stipulated that the report would be admitted as Plaintiff’s Exhibit No. 4 after the conclusion of the hearing. Hartelius and Morgan did not object to the admission of the report, thus they cannot now predicate error on its admission.

¶43 This Court has long held that a party may not raise for the first time on appeal alleged errors pertaining to the introduction of evidence or testimony that was not objected to at the time of trial. Flanigan v. Prudential Federal Sav. & Loan (1986), 221 Mont. 419, 430, 720 P.2d 257, 264.

Issue 3.

¶44 Whether the District Court erred in failing to require that Campbell reveal the amount she received as settlement of her claim.

¶45 Hartelius and Morgan contend that the District Court should have required Campbell to reveal the amount of the settlement. They argue that the court cannot effectively determine the amount of attorney fees owed until the settlement amount is known. We disagree. The amount of the settlement would only be necessary if the attorney fees were to be based on a percentage of that figure. Since we have already determined that Hartelius and Morgan are entitled only to the value of the services rendered, the amount of the settlement is immaterial.

¶46 Accordingly, we affirm the District Court’s denial of Hartelius and Morgan’s request to force Campbell to disclose the settlement amount.

¶47 Affirmed.

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