author: JUSTICE TRIEWEILER /s/ TERRY TRTEWFJLER- Justice /s/ J.A- TTTRNACtE. Chief Justice /s/ JOHN CONWAY HARRISON. Justice /s/ WILLIAM E. HUNT SR.. Justice /s/ r.c. McDonough, justice /s/ KARLA M. CRAY. Justice /s/ FRED J. WEBER. JUSTICE

text:
    STATE OF MONTANA, EX REL. GREG MAPES, Plaintiff/Relator, v. THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE, and THE HONORABLE THOMAS M. McKITTRICK, District Judge, Respondents.
    No. 91-285.
    Oct. 30, 1991.
    48 St.Rep. 524.
    250 Mont. 524 .
    822 P.2d 91.

      William A. Rossbach, John B. Whiston, Rossbach & Whiston, P.C., Missoula, Erik B. Thueson, Thueson Law Office, Helena, Donald R. Marble, Marble Law Office, Chester, for plaintifffrelator.
    E. Scott Savage, David L. Arrington, VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Kurt W. Kroschel, Russell D. Yerger, Kurt W. Kroschel & Associates, Billings, Thomas M. McKittrick, Dist. Judge, Great Falls, for respondents.
   ORDER AND OPINION

JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Greg Mapes, filed a complaint in the District Court of the Eighth Judicial District in Cascade County. He brought his claim against the defendant, Burlington Northern Railroad, pursuant to 45 U.S.C. § 51, et seq., to recover damages for physical injuries that he alleges he sustained during the course of his employment with the railroad. Following pretrial discovery of plaintiff’s psychological therapy records by the defendant, he moved for a protective order prohibiting further disclosure of those records. That motion was denied. Defendant then moved the District Court for an order requiring plaintiff to submit to a psychiatric examination without the presence of his attorney or any recording device during any part of the examination. That motion was granted. Plaintiff has petitioned this court to intervene by accepting supervisory control over the District Court and reversing these two discovery orders. We accept supervisory control and remand to the District Court for further proceedings consistent with this opinion.

The issues are:

1. Is this an appropriate case for the exercise of supervisory control by the Supreme Court over the District Court?

2. Are records of psychological therapy received by the plaintiff since 1986 discoverable in this personal injury action commenced in 1989?

3. Is the plaintiff entitled to have an attorney present during any interview of the plaintiff conducted by a psychiatrist retained by the defendant?

FACTUAL BACKGROUND

On June 14, 1989, plaintiff filed his complaint pursuant to 45 U.S.C. §§ 51, et seq., known as the Federal Employers Liability Act. He sought damages for injuries sustained during the course of his employment with the defendant railroad.

In his complaint, plaintiff alleged that from 1974 to the present date he was employed by defendant as a welder and painter in defendant’s car and diesel shops located in Havre, Montana. He alleged that while he was employed in that capacity he was exposed to toxic fumes, dust, and vapors, including hydrocarbons, lead, and asbestos, and that due to these exposures, he sustained physical injury to his lungs and his central nervous system. As a result of the injury to his central nervous system, plaintiff claims that he has a measurable cognitive deficit.

Plaintiff alleged that the defendant was negligent by providing inadequate training to its employees, and inadequate ventilation and respiratory equipment. He claims that his injuries are a result of defendant’s negligence.

During the course of discovery, defendant took the deposition of the medical records custodian at the Havre Clinic. Pursuant to a subpoena duces tecum, that custodian produced records of court-ordered psychological therapy in which the plaintiff had been engaged since 1986 under the care of Lawrence Jarvis, Ph.D., a clinical psychologist. Plaintiff’s attorneys objected to the production of these documents on the grounds that they were irrelevant to any issue in this case. However, they were produced and are currently in the possession of defendant’s attorneys.

After production of plaintiff’s psychological records, he filed a motion requesting that the District Court issue a protective order sealing the psychological records and prohibiting further public disclosure without prior court order. He pointed out that he was seeking damages in this case for only pulmonary and neurological injuries, as a result of his exposure to toxic chemicals, and was not seeking damages for any psychological injury. He further argued that the records were privileged and unrelated to the injuries for which he sought compensation. As previously pointed out, plaintiff’s motion for a protective order was denied by the District Court.

On December 12, 1990, defendant moved for an order compelling plaintiff to submit to a psychiatric examination by Donald R. Harr, M.D., the director of the South-Central Montana Regional Medical Health Center in Billings, Montana. In its motion, defendant requested that no recording device be permitted during any part of the psychiatric examination, and that the court compel plaintiff to attend the examination without the presence of his attorneys or any other third person.

Dr. Harr filed an affidavit in support of defendant’s motion which indicated that his examination would include the administration of a number of tests, including the Plural Test, Minnesota Multi-Phasic Personality Inventory II, Bender-Gestalt, Rorschach Test, and TAT. In addition, it was the doctor’s intention to conduct a one-on-one examination during which he would evaluate, not only plaintiff’s responses but his behavior and reactions. He expressed concern that plaintiff’s responses could be affected by the presence of any observer or recording or listening device.

In opposition to defendant’s motion, plaintiff argued that there was not “good cause,” as required by Rule 35, M.R.Civ.P., for a psychiatric examination because no psychiatric or psychological damages were being alleged by the plaintiff. Plaintiff pointed out that even though Edward Shubat, Ph.D., was listed as a witness by plaintiff, Dr. Shubat was an expert in neuropsychology and was being called for the purpose of testifying that through testing he had established that plaintiff had sustained organic brain injury due to toxic exposures at the work place. Plaintiff further argued that those cases relied upon by defendant in support of excluding plaintiff’s attorney from the psychiatric examination were dissimilar to this case because they all dealt with claims involving insanity, competency, or psychotic problems. Here, plaintiff contended, he alleged only physical injury. However, the District Court granted defendant’s motion and ordered that plaintiff submit to a psychiatric examination, including a one-on-one interview with Dr. Harr, outside the presence of plaintiff’s attorney and without any recording device.

We address the issues in the order in which they have been raised.

I.

Is this an appropriate case for the exercise of supervisory control by the Supreme Court over the District Court?

“Although interlocutory review of discovery orders is not favored, State ex rel. Guar. Ins. v. District Court (Mont. 1981), [191 Mont. 64,] 634 P.2d 648, 38 St.Rep. 1682, the writ will issue in an appropriate case. See, e.g., State ex rel. Burlington Northern v. District Court (Mont. 1989), [239 Mont. 207], 779 P.2d 885 ... .”

State ex rel. U.S.F. & G. v. District Court (1989), 240 Mont. 5, 783 P.2d 911.

In U.S.F.& G., we granted supervisory control where the district court ordered production of communications which involved the attorney- client privilege. We did so because the discovery of those communications in the context of a bad faith case was an issue of first impression in Montana and because, once disclosed, the defendant’s remedy by appeal was inadequate.

Rule 17(a), M.RApp.P., provides that:

“The supreme court is an appellate court but it is empowered by the constitution of Montana to hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of its jurisdiction. The institution of such original proceedings in the supreme court is sometimes justified by circumstances of an emergency nature, as when a cause of action or a right has arisen under conditions making due consideration in the trial courts and due appeal to this court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary or proper.”

We consider the circumstances in this case appropriate for the exercise of the Supreme Court’s supervisory control. Defendant’s right to discover plaintiff’s mental or physical condition is based on fairness where that mental or physical condition is placed in issue by a claim for damages. However, defendant’s need for that discovery must be balanced by plaintiff’s constitutional right to privacy found in Mont. Const. Art. II, § 10. Defendant’s needs must also be balanced against plaintiff’s statutory right to confidential relations with his psychologist. Section 26-1-807, MCA, places plaintiff’s relations with his psychologist “on the same basis as provided by law for those between an attorney and his client.” Once confidential communications have been disclosed or publicized, the damage cannot be undone on appeal. Therefore, as in U.S.F.& G., we conclude that issuance of the writ is necessary in this case.

II.

Are records of psychological therapy received by the plaintiff since 1986 discoverable in this personal injury action commenced in 1989?

Section 26-1-807, MCA, establishes the following privilege:

“Psychologist-client privilege. The confidential relations and communications between a psychologist and his client shall be placed on the same basis as provided by law for those between an attorney and his client. Nothing in any act of the legislature shall be construed to require such privileged communications to be disclosed.”

However, the confidentiality of communications between a patient and his psychologist can be waived like any other privilege. When a party claims damages for physical or mental injury, he or she places the extent of that physical or mental injury at issue and waives his or her statutory right to confidentiality to the extent that it is necessary for a defendant to discover whether plaintiff’s current medical or physical condition is the result of some other cause. However, in balancing plaintiff’s right to confidentiality against the defendant’s right to defend itself in an informed manner, we conclude that the waiver is not unlimited. Defendant is entitled to discover prior physical or mental conditions which may relate to the damages being claimed in the current action, but is not entitled to unnecessarily invade plaintiff’s privacy by exploring totally unrelated or irrelevant matters.

We, therefore, limit the extent to which defendant, in this case, may discover or use information or records gathered by Lawrence Jarvis, Ph.D., in the course of his psychologist and patient relationship with plaintiff.

Defendant may depose Dr. Jarvis for the purpose of determining whether in his opinion plaintiff suffers from any cognitive deficit caused by any factor, other than the conditions of his employment, as alleged in his complaint. If the District Court determines that plaintiff claims any emotional or psychological damage as a result of defendant’s negligence, then defendant may also question Dr. Jarvis to determine whether in his opinion plaintiff suffers from any emotional or psychological problems resulting from any factor, other than the causes alleged in his complaint. If Dr. Jarvis answers in the affirmative to either of the preceding areas of inquiry, defendants may question Dr. Jarvis regarding the nature of those other causes and whether he is able to apportion the amount of plaintiff’s damage attributable to each factor.

In the event that the purposes for which Dr. Jarvis has treated plaintiff are unrelated to any damage claimed in the present lawsuit, then the District Court should enter a protective order sealing plaintiff’s psychological records from the Havre Clinic and prohibiting further public disclosure by defendant.

III.

Is the plaintiff entitled to have an attorney present during any interview of the plaintiff conducted by a psychiatrist retained by the defendant?

This issue is controlled by Mohr v. District Court (1983), 202 Mont. 423, 660 P.2d 88. That case was also a personal injury action in which the defendant sought an examination of the plaintiff pursuant to Rule 35, M.R.Civ.P. The plaintiff’s attorney in that case also requested an opportunity to be present during the examination and the trial court in that case also denied that motion. In that case, as in this case, we issued a writ of supervisory control. The only difference between that case and this case is that in Mohr, the defendant sought a physical examination, whereas, in this case, defendant has requested a psychiatric examination. However, the reason for which we granted supervisory control and concluded that plaintiff had a right to have his attorney present during at least the history-taking part of the examination, is also applicable in this case. We held that:

“Courts have recognized the possibility that whenever a doctor is selected by one party to conduct a physical examination of another party, the doctor may ask improper questions. A lay person should not, without the assistance of counsel, be expected to evaluate the propriety of every question. Therefore, the rule developed which permits a party undergoing a court-ordered examination to have the protection and assistance of counsel at this examination. Sharff v. Superior Court (1955), 44 Cal.2d 508, 282 P.2d 896; Williams v. Chattanooga Iron Works (1915), 131 Tenn. 683, 176 S.W. 1031. In fact, the common law rule permits a party to have his attorney present at any court-ordered physical examination. See 64 A.L.R.2d 497, 501, § 5. This rule is designed to insure that a party can protect his rights to refrain from making any statements or admissions that may be adverse to his position.” See generally, 64 A.L.R.2d § 497.

Mohr, 660 P.2d at 88-89.

In response to concern about potential abuses from the attendance by an attorney at the history taking part of a physical examination, we stated that:

“And, if an attorney becomes disruptive during the history taking part of an examination, the trial court may take steps under Rule 37, M.R.Civ.P., including sanctions, for failure to cooperate in the discovery process.”

Mohr, 660 P.2d at 89.

The interest which this Court sought to protect by permitting plaintiffs attorney to attend the history taking part of a physical examination is identical to the interest of a plaintiff in having an attorney present at the interview portion of a psychiatric examination. A psychiatric examination is particularly invasive of an individual’s right to privacy. It is an extraordinary form of discovery which is permitted under Rule 35 only when the plaintiff’s mental condition is in controversy, and then only when good cause has been shown. The risk of improper questions and the need to protect a party’s rights are as great or greater under these circumstances as in a medical examination. While it is understandable that the psychiatrist retained by defendant would prefer to examine a totally uninhibited plaintiff, the psychiatric examination should not provide a possible opportunity, either intentional or unintentional, to elicit statements or admissions against interest that defendant’s attorney would be prohibited from eliciting during a deposition. The only way to assure that this does not occur is to allow the presence of plaintiff’s attorney.

For these reasons, the order of the District Court requiring plaintiff to submit to a psychiatric examination without the presence of his attorney is vacated, and the court is instead directed to enter an order in accordance with this opinion. Recording devices, however, will not be permitted unless specifically requested by defendant or Dr. Harr.

The clerk shall mail a copy of this order and opinion to the Clerk of the Eighth Judicial District Court, Cascade County, The Honorable Thomas M. McKittrick, and to all counsel of record.

/s/ TERRY TRTEWFJLER- Justice

/s/ J.A- TTTRNACtE. Chief Justice

/s/ JOHN CONWAY HARRISON. Justice

/s/ WILLIAM E. HUNT SR.. Justice

/s/ r.c. McDonough, justice

/s/ KARLA M. CRAY. Justice

/s/ FRED J. WEBER. JUSTICE


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN WILLIAM AILLS, a/k/a DARRELL RANDALL STAHL, Defendant and Appellant.
    No. 90-603.
    Submitted on briefs Sept. 19, 1991.
    Decided Oct. 30, 1991.
    250 Mont. 533.
    822 P.2d 87.

      J. Mayo Ashley, Helena, for defendant and appellant.
    Marc Racicot, Attorney General, Joseph E. Thaggard, Assistant; Mike McGrath, County Attorney, Carolyn Clemens, Deputy County Attorney, Helena, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant John William Aills, a/k/a Darrell Randall Stahl, pled guilty to one count of deliberate homicide and one count of attempted deliberate homicide in the First Judicial District, Lewis & Clark County, Montana. The District Court accepted the guilty pleas. The appellant then moved to withdraw his guilty pleas, based on ineffective assistance of counsel. The District Court denied the motion and sentenced the appellant. We affirm.

The issue before the Court is whether the District Court erred in refusing to allow the appellant to withdraw his guilty pleas.

On May 18, 1990, the appellant entered the Carroll College cafeteria in Helena with a firearm. Numerous witnesses saw him shoot and kill Sharon Hance and seriously injure Emma Peschke. Shortly after the incident, law enforcement officials located the appellant hiding under a tree on the campus and arrested him for deliberate homicide and attempted deliberate homicide. On May 21, 1990, the State charged the appellant and the court appointed two public defenders to represent him. The appellant pled not guilty to both counts but later changed his pleas to guilty. After advising the appellant of his rights and maximum penalties for the offenses, the District Court accepted the guilty pleas. Two days before sentencing, the appellant made a motion to change counsel and to withdraw his previous guilty pleas. The court denied both requests on October 23, 1990, and later sentenced him to two consecutive life sentences. The court designated him ineligible for parole and a dangerous offender. The court also imposed two ten- year consecutive sentences for use of a dangerous weapon, one for each count.

The appellant alleges that the District Court erred in denying his request to withdraw his guilty pleas. He bases his position on a theory of ineffective assistance of counsel for two reasons: first, for failing to inform the appellant that there was a possibility of changing venue if the matter went to trial; and second, for not informing the appellant of all his rights.

This Court adopted a test to determine ineffective assistance of counsel in State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831. The test encompassed a two-pronged test adopted by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. This Court recently discussed the Strickland test as follows:

‘Under the two-pronged test set forth in Strickland, the defendant must first demonstrate that counsel’s performance was deficient. To demonstrate that counsel’s performance was deficient, defendant must prove that counsel’s performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel’s deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate that but for counsel’s deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Elliot (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. When a guilty plea is at issue rather than the result of a trial, the defendant must demonstrate that but for counsel’s deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210.”

State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975.

In the case at bar, we find that neither prong of the test is satisfied. First, counsel’s performance was not deficient since it did not fall below the range of competence reasonably demanded of attorneys. Counsel’s failure to specifically inform the appellant that there was a possibility of a change of venue if the case went to trial does not establish that counsel rendered deficient performance. A motion to change venue is only appropriate after a case is set for trial. This case did not proceed to trial due to the appellant’s guilty pleas, and guessing what counsel would have done is unnecessary. “In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. After considering all the circumstances in the instant case, we hold that counsel’s performance was reasonable.

Second, appellant was not denied a fair trial; lie chose to plead guilty voluntarily after considering the overwhelming evidence against him. We have already determined counsel’s performance was reasonable and not deficient; therefore, the assertion that the defendant would not have pled guilty and insisted on going to trial but for counsel’s deficiency is moot. Furthermore, there is evidence that the appellant’s attorneys and the District Court properly informed him of all his rights.

We find the appellant’s claim that he did not receive effective assistance of counsel is without merit when considering either or both of the reasons set forth by the appellant. The record indicates that the court-appointed attorneys met with the appellant separately and together and informed him of the consequences of pleading guilty. In the October 23,1990, proceeding, the appellant’s attorney responded to the court as follows:

“THE COURT: ... explain to the Court as best you can what you have done with respect to this case so far as far as your investigation and communications with the defendant.
“MR. JACQUES: ... I can definitely state to this Court he was advised on a number of occasions that an entry of plea does foreclose any possibility of a trial and [the] only thing left for the Court to do is pronounce sentence. Just prior to the entry of plea both Randi Hood and myself met with the defendant, talked extensively about the pros and cons of taking a case such as this through trial and there was extensive conversations and extensive discussions about whether or not it would be wise, based on the evidence, to take a matter such as this to trial. And it was in that discussion where Randi Hood was present that it was at least in my opinion made perfectly clear and he appeared to understand it at that time that there would be no trial and he had no right to a trial if a plea was accepted by this Court and there would be no chance to appeal any decision, that additionally was made aware to him, or finding of guilt or innocence. That that was a closed issue and the only thing that possibly could be appealed is whether or not this Court had sentenced properly ....
“THE COURT: Did you feel in your mind that he understood what he was doing?
“MR. JACQUES: Yes.
“THE COURT: And at the time he came here for the arraignment and at the time he pled guilty did you feel after conferring with him that he understood what the consequences of his pleading guilty to the charges would be?
“MR. JACQUES: There was no question in my mind.”
Further, the transcript of the September 14, 1990, proceeding in which the appellant voluntarily changed his pleas to guilty to both counts indicates that the District Court carefully advised the appellant of his rights and maximum penalties for the offenses, as required by Montana law, and properly accepted the guilty pleas. The transcript of September 14,1990, reads as follows:
“THE COURT: Mr. Aills, to remind you you have been charged by information with two offenses, count one deliberate homicide a felony, the maximum possible punishment for that offense is punishment by death, by life imprisonment or by imprisonment in the state prison for any term not less than 10 years nor more than 100 years and you have been charged with count two attempted deliberate homicide a felony. The maximum possible punishment for that offense is punishment by death, by life imprisonment or by imprisonment in the state prison for any term not less than 10 years nor more than 100 years. Do you understand that?
“A. Yes I do.
“THE COURT: Now it is my understanding that you are here for the purpose of change of plea?
“A. That is right.
“THE COURT: Okay. I would like to remind you before you enter a change of plea of the following rights that you have at this time. You are entitled to a fair, speedy and impartial trial by jury. You are entitled to and the state must prove the charges against you beyond a reasonable doubt. You have the right to confront your accusers, to cross examine any witnesses that might testify against you. You have the right to produce any witnesses who might testify in your behalf. You may refuse to testify and you may refuse to answer any individual questions that may tend to incriminate you. If you go to trial you might be found guilty of a lesser included crime. That means that a jury might find that you are innocent of the charges here but that you are guilty of a less serious crime. Pending the outcome of the trial you have the right to secure bail to release you from custody. The amount of bail will be determined by me. Do you understand those rights?
“A. Yes.
“THE COURT: Okay. Are you satisfied with your attorneys?
“A. Yea.
“THE COURT: Are you presently under the influence of any drugs, alcohol or any person?
“A. No.
“THE COURT: Before accepting your plea, have you been coerced, threatened or promised any benefits if you plead guilty?
“A. No.
“THE COURT: Do you understand the charges against you?
“A. Yea.
“THE COURT: Have you discussed them fully with your attorney?
“A. Yes.
“THE COURT: Do you have any questions about what we are doing now or about anything with regard to these charges?
“A. No.
“THE COURT: Okay. Do you understand that by entering pleas of guilty you have waived the rights that I have just read to you?
“A. Yes.”

Clearly the appellant was adequately informed of his rights and stated he understood the ramifications of entering pleas of guilty. Thus, when the appellant desired to withdraw his previous guilty pleas, the District Court properly denied the request. The transcript from the October 23, 1990, proceeding reveals the court’s rationale for such denial.

“THE COURT: You have had — before you pled guilty to this offense you had extensive conversations with your attorney. You had plenty of opportunity to clarify any questions at that time. And when you pled guilty you were advised very severely and very thoroughly of the consequences of your guilty plea and this Court has no authority to allow you to withdraw a guilty plea just because you have sat and thought about it for a couple weeks and decided it might be — that you would rather have a jury trial than plead guilty.
“THE COURT: On the basis of what you have told me today I find no legal basis for permitting you to withdraw your guilty plea. And I find no legal basis for withdrawing your attorney ... .”

The District Court may allow withdrawal of a plea of guilty upon the showing of good cause pursuant to 46-16-105(2), MCA. Since we hold that the appellant’s claim of ineffective assistance of counsel is without merit in the instant case, the appellant has failed to show good cause to withdraw his guilty pleas. Therefore, finding no abuse of discretion, we affirm the District Court.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.

       Section 46-16-105(1), MCA, reads: "Before or during trial, a plea of guilty may be accepted when: (a) the defendant enters a plea of guilty in open court; and (b) the court has informed the defendant of the consequences ofhis plea and ofthe maximum penalty provided by law which may be imposed upon acceptance of such plea.”


author: JUSTICE HUNT JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LEO F. STAAT, Defendant and Appellant.
    No. 91-148.
    Submitted Oct. 23, 1991.
    Decided Nov. 21, 1991.
    48 St.Rep. 1041.
    251 Mont. 1.
    822 P.2d 643.

      For Appellant: Noel K. Larrivee argued, Larrivee Law Office, Missoula.

      For Respondent: Marc Racicot, Attorney General; Paul D. Johnson argued, Assistant Attorney General; Mark Murphy, Assistant Attorney General, Helena; George Corn, Ravalli County Attorney, Hamilton.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Leo G. Staat appeals from a jury verdict and trial court orders of the Fourth Judicial District Court, Ravalli County, finding appellant guilty of the offense of tampering with or fabricating evidence in violation of 45-7-207(1)(a), MCA (1989), a felony.

We affirm.

Appellant raises five issues on appeal.

1. Whether the District Court erred in denying appellant’s motion to suppress a confession made after a polygraph examination on the grounds that plaintiff’s police officers’ expressed or implied conduct resulted in a “custodial interrogation.”

2. Whether the District Court erred in overruling appellant’s objection to plaintiff’s Exhibit No. 5, which consisted of a secretly taped interrogation in appellant’s home, violating appellant’s right to privacy under Mont. Const, art. II, § 10, and appellant’s right to be free from unreasonable searches and seizures under Mont. Const, art. II, § 11.

3. Whether the District Court erred in allowing a conviction without any evidence of the offense charged other than appellant’s confession.

4. Whether the District Court erred by not directing a verdict for appellant based on plaintiff’s failure to offer sufficient evidence proving the necessary mental state for the crime charged.

5. Whether the District Court erred in denying appellant’s motion for a new trial on grounds that the prosecutor made inflammatory remarks during closing argument which were not supported by the record, thereby prejudicing appellant’s right to a fair trial.

On the morning of December 16, 1989, appellant discovered the body of a close friend, Mary Higgins, at her residence in Stevensville. She had been the victim of a deliberate homicide. On the kitchen table, appellant discovered a note addressed to him by the victim. According to appellant, the note stated “[sjweetheart, I’m out for a walk, wait for me to come back.” Appellant picked up the note and destroyed it. Appellant then notified the police from a local drug store about the killing. A full-scale police investigation was quickly launched.

The police questioned appellant on at least five separate occasions. The first occurred on December 16, 1989, in a police vehicle at the scene of the crime. Detective Maus interviewed appellant concerning the discovery of the body. Because the police discovered footprints and tire tracks left in the snow, appellant’s shoes and car tires were photographed. This evidence indicated that appellant drove up to the victim’s house and walked to her door twice before notifying the police.

Appellant was questioned at his residence by police officers on December 26,1989; January 2,1990; and on January 12,1990. At the conclusion of the January 12,1990, interrogation, Detective Horsfall requested that appellant submit to a polygraph examination. At first, appellant declined, but after repeated requests by the detective, appellant consented.

Throughout these interrogations the police secretly recorded their conversations with appellant by hiding a microphone in an officer’s lapel. Appellant was unaware that he was being taped during these interrogations.

On the evening of January 16,1990, a polygraph examination was conducted upon appellant in the basement of the Ravalli County Sheriff’s Office. The entire examination lasted approximately four hours. After the polygraph, the police, dressed in plain clothes, began interrogating appellant. It was at that time that appellant confessed to reentering the victim’s house and taking and destroying the note. At no time throughout the investigation, and specifically not before, during, or after the polygraph examination, did the police read appellant the Miranda warning. Two months later appellant was arrested and charged with tampering with or fabricating evidence in violation of § 45-7-207(l)(a), MCA (1989).

On September 5, 1990, appellant filed a motion to suppress the statements he had made to investigating officers following the polygraph examination because he was never given a Miranda warning. On October 25, 1990, a suppression hearing was held. The District Court denied the motion on November 19,1990. On November 26,1990, a jury trial commenced. The trial concluded the following day with the jury finding appellant guilty. On December 10,1990, appellant moved for a new trial which was denied by the District Court. Appellant was given a three-year deferred sentence. Notice of appeal was timely filed on January 24, 1991.

I

Whether the District Court erred in denying appellant’s motion to suppress on the grounds that plaintiff’s police officers’ expressed or implied conduct resulted in a “custodial interrogation.”

The United States Supreme Court has ruled that states may not use confessions or admissions resulting from “custodial interrogation” unless the proper Miranda warnings have been given. Miranda v. Arizona (1965), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706. The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Before determining whether the police should have given the appellant the Miranda warning, we must first determine whether there was “custodial interrogation.”

This Court has established the following guidelines to determine what constitutes “custodial interrogation.” If a person has no free right to leave, then the interrogation is custodial. State v. Ellinger (1986) , 223 Mont. 349, 355, 725 P.2d 1201, 1204. “Custodial interrogation” can result from the expressed or implied conduct of police officers. State v. Osteen (1985), 216 Mont. 258, 265, 700 P.2d 188, 193. This Court looks to whether a “reasonable person” would not feel free to leave and has used six factors to determine “custodial interrogation.”

“[P]lace of interrogation, the time of interrogation, persons present during interrogation, whether Miranda warnings were gratuitously given, the length and mood of interrogation, and whether or not the suspect was arrested following questioning.”

State v. Lapp (1983), 202 Mont. 327, 331, 658 P.2d 400, 403.

Even though a suspect is questioned by police officers in a station house, the interrogation is not necessarily custodial unless there is a significant restriction of personal liberty. State v. Dannels (1987), 226 Mont. 80, 87, 734 P.2d 188, 193.

“Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ”

Dannels, 734 P.2d at 193 (quoting Oregon v. Mathiason (1977), 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed. 2d 714, 719).

Miranda warnings might not be required even when a person is the focus of the investigation. Dannels, 734 P.2d at 190-91. The determination of what constitutes “custodial interrogation” is made on a case-by-case analysis.

In this case, the facts and circumstances did not rise to the level of “custodial interrogation.” Appellant stated he was unconcerned about taking a polygraph. He volunteered to take the polygraph and drove to the sheriff’s office without a police escort. The police did not threaten appellant with arrest, nor was he ordered to take the polygraph. Appellant was not placed under arrest either before or after the polygraph examination. After the post-polygraph interview, he was free to leave. None of the officers involved with the examination were in uniform. Toward the end of questioning, the record reflects that the appellant and the officers were joking and making idle conversation. After the examination, appellant went home. Moreover, the purpose of the polygraph examination was to develop information regarding the Higgins homicide, not to find information about tampering with the evidence. We have noted our extreme displeasure with the use of polygraph examinations and results in criminal trials and forbade their use in any proceeding in a court of law in Montana. State v. Staat (Mont. 1991), [248 Mont. 291,] 811 P.2d 1261, 1262, 48 St.Rep. 331. We hold that in this case, and under these facts, the District Court did not err in allowing appellant’s confession into evidence.

II

Whether the District Court erred in overruling appellant’s objection to plaintiff’s Exhibit No. 5, which consisted of a secretly-taped interrogation in appellant’s home, violating appellant’s right to privacy under Mont. Const, art. II, § 10, and appellant’s right to be free from unreasonable searches and seizures under Mont. Const, art. II, § 11.

In State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364, the majority of this Court held:

“[T]hat warrantless consensual electronic monitoring of face-to-face conversations by the use of a body wire transmitting device, performed by law enforcement officers while pursuing their official duties, does not violate the right to be free of unreasonable searches and seizures nor the privacy section of the Montana Constitution.” Brown, 755 P.2d at 1369.

All that is required is that one party to the conversation clearly consent to the monitoring and that the consent be “freely made and without compulsion.” Brown, 755 P.2d at 1369. The consent may be given by a police officer or an informant. Brown, 755 P.2d at 1369. Evidence obtained in this manner is admissible in a criminal trial. We hold that the District Court did not err in failing to suppress Exhibit No. 5.

III

Whether the District Court erred in allowing a conviction without any evidence of the offense charged other than appellant’s confession.

Appellant’s third issue on appeal is that appellant cannot be convicted solely on the basis of his extrajudicial confession. Section 46-20-104(4), MCA (1989), states that failure to make a timely objection constitutes a waiver of the objection. The record does not show that defense counsel made an objection on corpus delicti grounds, and he does not assert any of the exceptions listed in 46-20-701(2), MCA (1989).

In addition, at the suppression hearing, appellant admitted to taking the note. A confession in criminal law is a voluntary statement made by a person charged with a crime acknowledging himself to be guilty of the offense charged. Black’s Law Dictionary 369 (4th ed. rev. 1968). A judicial confession is made before a magistrate or court during the course of the legal proceedings. Black’s Law Dictionary 369 (4th ed. rev. 1968). The prosecution directly asked appellant whether he had taken the note. The appellant answered yes. This amounted to a judicial confession and no independent corroboration is required. 7 Wigmore on Evidence § 2071 (Chadbourn Rev. 1978).

IV

Whether the District Court erred by not directing a verdict for appellant based on plaintiff’s failure to offer sufficient evidence proving the necessary mental state for the crime charged.

Section 45-7-207, MCA (1989), states in pertinent part:

“(1) Aperson commits the offense of tampering with or fabricating physical evidence if, believing that an official proceeding or investigation is pending or about to be instituted, he:
“(a) alters, destroys, conceals, or removes any record, document, or thing with purpose to impair its verity or availability in such a proceeding or investigation ....”

A person acts “with purpose” “if it is his conscious object to engage in that conduct or to cause that result.” Section 45-2-101(58), MCA (1989).

Defense counsel admits appellant believed that an investigation was about to begin, and that appellant destroyed the note. However, appellant argues that he acted with the purpose of avoiding unfavorable comment by the news media toward the victim, not to impair the investigation. We disagree.

The compiler’s comments to 45-7-207, MCA (1989), state that all that is required is that the accused believe an official proceeding or investigation is pending or imminent and that he act with the purpose of impairing the availability or verity of the physical evidence.

The record reflects appellant knew a serious crime had been committed. He failed to notify the police until after he had destroyed the note. Although his ostensible reason for removing and destroying the note may have been to protect the victim’s reputation, his purpose was to prevent the note’s discovery during the homicide investigation that he realized would follow his report of the crime. For example, when asked why he took the note, appellant stated “[i]t goes back quite a while — I dealt with law enforcement here.” This suggests that the appellant’s conscious object was to make the note unavailable to police officials, thereby impairing the investigation.

We will not overturn a conviction when the evidence in light most favorable to the state “would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100 [emphasis in original]. We hold there was sufficient evidence on the record for the jury to find that the appellant acted with the purpose of impairing the homicide investigation beyond a reasonable doubt.

V

Whether the District Court erred in denying appellant’s motion for a new trial on grounds that the prosecutor made inflammatory remarks during closing argument, which were not supported by the record, thereby prejudicing appellant’s right to a fair trial.

Appellant contends the State made certain comments concerning the nature of the Higgins homicide which inflamed the jury and denied appellant’s right to a fair trial. Defense counsel moved for a new trial partially upon this basis.

Section 46-16-702(1), MCA (1989), states a motion for a new trial may be granted by a district court “if required in the interest of justice.” The decision is left to the sound discretion of the trial court judge. Absent an abuse of discretion, denial of a motion for a new trial will not be disturbed on appeal. State v. Rose (1980), 187 Mont. 74, 83, 608 P.2d 1074, 1079.

A prosecutor may comment on the following during closing argument:

“[T]he gravity of the crime charged, the volume of evidence, credibility of witnesses, inferences to be drawn from various phases of evidence, and legal principles involved, to be presented in instructions to the jury....”

State v. Dupre (1982), 200 Mont. 165, 175, 650 P.2d 1381, 1386 (quoting State v. Thompson (1978), 176 Mont. 150, 157, 576 P.2d 1105, 1109). An appellant must also allege that the prejudicial prosecutorial conduct resulted in a substantial right being denied. State v. Nichols (1987), 225 Mont. 438, 448, 734 P.2d 170, 176.

The record shows defense counsel made only one objection during the State’s closing argument on the grounds that the evidence referred to, i.e., three fingerprints, was not in the record. Where the party opposes the admission of evidence and the trial court sustains the objection, strikes the evidence from the record, and instructs, the jury to disregard the evidence, “error committed by its introduction is presumed cured.” State v. Seaman (1984), 236 Mont. 466, 476, 771 P.2d 950, 956 (quoting State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335). The trial judge gave a curative instruction and admonished the jury. This cured the error.

Because this case involved tampering with evidence of a homicide investigation, it was proper for the State, during closing argument, to comment on the seriousness of the crime being investigated and the importance of preserving the criminal scene exactly the way the appellant found it. We hold that the comments made by the State did not deny the appellant’s right to a fair trial and that the District Court did not abuse its discretion in not granting a new trial.

We affirm.

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

JUSTICE TRIEWEILER,

specially concurring:

I concur with the result of the majority’s opinion. However, I do not agree with all of the majority’s conclusions.

I specifically disagree with the conclusion that the government may send an agent into a private citizen’s home and secretly tape record a conversation with that citizen without his knowledge or permission and without a duly-issued warrant.

I do not agree with the majority’s conclusion that a person’s privacy can be invaded to that extent without violating Mont. Const, art. II, §10.

I agree with this Court’s prior decision in State v. Brackman (1978), 178 Mont. 105, 582 P.2d 1216, and Justice Hunt’s dissent in State v. Brown (1988), 232 Mont. 1, 755 P.2d 1364, wherein he made the following observation regarding the right to privacy in Montana:

“The majority feels constrained by the decisions of the United States Supreme Court. But this state, through the adoption of the right to privacy provision of our state constitution, has elected to give Montana citizens even greater guarantees of privacy than the federal constitution gives. Why the majority chooses to ignore this explicit guarantee puzzles me ....
“The decision made today is indeed a sad one for the citizens of the state of Montana. The majority may have unwittingly opened the doors for the erosion of any protection the privacy clause gives individuals of this state. The result may be required by the current posture of federal law but it certainly was not intended by the framers of our state constitution.”

Brown, 755 P.2d at 1372 (Justice Hunt dissenting).

Even though I conclude that the secretly taped conversation of the defendant in his own home violated his constitutional right to privacy under our State Constitution, I would affirm his conviction. Section 46-20-701(2), MCA, provides that “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”

I read the entire transcript of the conversation that was secretly recorded in the defendant’s home. It is basically an innocuous conversation during which the defendant and his wife were asked to submit to a polygraph examination. There were no remarks which reflected in any way on the defendant’s guilt or innocence.

Therefore, even though I would exclude the results of a secretly taped conversation in a person’s home, I conclude that there was no prejudice to the defendant from the admission of this statement in this case.

For these reasons, I concur in the majority’s decision to affirm the judgment of the District Court.


author: JUSTICE WEBER JUSTICE TRIEWEILER,

text:
    BRUCE R. CAMPBELL, as the father of CASSIE CAMPBELL, a minor; and CASSIE CAMPBELL, a minor by and through BRUCE R. CAMPBELL, her next friend, Plaintiffs and Appellants, v. JEFFREY DEAN JOHNSON, Defendant and Respondent.
    No. 91-202.
    Submitted on briefs Aug. 15, 1991.
    Decided Dec. 12, 1991.
    Rehearing Denied Feb. 6, 1992.
    48 St.Rep. 1097.
    251 Mont. 12.
    823 P.2d 237.

      For Appellant: Douglas C. Allen, Attorney at Law, Great Falls; Douglas D. Howard, Heard & Howard, Columbus.
    For Respondent: Dane C. Schofield, Peterson & Schofield, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Cassie Campbell (Campbell) brought a negligence action against the defendant, Jeffrey Dean Johnson (Johnson) as a result of an auto-pedestrian accident. A jury in the Seventh Judicial District Court, Richland County, Montana, found that Johnson was not negligent. Campbell appeals. We affirm.

The following issues are brought by the plaintiff on appeal:

1. Was it error for the investigating officer to offer opinion testimony regarding the cause of the accident?
2. Was it reversible error for the investigating officer to offer opinion testimony regarding the unsafe behavior of another driver?

On February 28,1987, while Campbell was crossing in the middle of the 400 block of South Central Avenue in Sidney, Montana, Campbell and Johnson’s vehicle collided. Central Avenue is a four-lane street with a parking lane on both sides running north and south. The 400 block on Central Avenue has a traffic light at the intersection to the south and a crosswalk at the intersection to the north.

Just prior to the accident Johnson was driving his car in the left southbound lane of Central Avenue. Although Johnson saw Campbell by the curb waiting to cross the street, he looked away before she stepped into the street. Campbell stated that she did not see Johnson’s car before stepping into the street. Campbell safely crossed the right southbound lane, then stepped into the left southbound lane and into the right front fender of Johnson’s car. Campbell was twelve years old at the time of the accident.

The investigating officer, Dennis Palmer (Palmer) of the Sidney Police Department, testified that when he arrived at the scene, Johnson had moved his car, and Campbell was lying in the street in the right southbound traffic lane about fifteen feet from the curb. Palmer testified that no skid marks appeared on the roadway, indicating that Johnson did not apply his brakes. Similarly, he found no scuff marks from the collision. Palmer examined the bent radio antenna, the windshield damage, the position of dents on Johnson’s vehicle, as well as the right front fender where accumulated road film and dust were disturbed. Palmer measured Campbell’s position in the street and the placement of her injuries. From this investigation, Palmer testified as to his conclusion that the point of contact was the right front fender of Johnson’s vehicle.

Palmer also obtained statements from Campbell, Johnson and several eye witnesses to the accident. Palmer testified that the witness statements were consistent with his conclusion that Campbell impacted with the right front fender of the vehicle. An eye witness to the accident, David Reidle (Reidle), was driving in the left northbound lane. According to his statement, Reidle observed Campbell waiting to cross the street and stopped his vehicle in the middle of the block to allow Campbell to cross.

At the trial, over objection of the plaintiff, Palmer testified that in his opinion “the accident was caused by the sudden movement of the pedestrian in the middle of the block out into the traveled portion of the road.” This testimony is the basis for the first claimed error. Palmer also testified over objection that in his opinion, it was unsafe for Reidle to stop his vehicle in the middle of the block. “It leads people to believe that traffic is going to stop for them in the middle of the block.” This testimony is the claimed basis for the second error.

I

Was it error for the investigating officer to offer opinion testimony regarding the cause of the accident?

Appellant contends that Palmer’s opinion testimony regarding the cause of the accident was inadmissible under Smith v. Rorvik (1988), 231 Mont. 85, 751 P.2d 1053. Smith involved an auto-pedestrian accident where the defendant failed to list the investigating officer as an expert prior to trial. In that case, this Court held that it was error to allow the officer to offer his opinion as to the negligence of one of the parties.

Clearly, this case is distinguishable from Smith. Here, Palmer’s testimony concerned the cause of the accident, not the negligence of the parties. Further in this case, Johnson listed Palmer as an expert prior to trial. In Smith, this Court concluded that because the officer was not listed as an expert prior to trial, the plaintiff lacked adequate opportunity to challenge the basis of the officer’s opinion.

“Upon proper requests by Smith through interrogatories that Rorvik identify any expert witnesses, it became the duty of Rorvik to identify those witnesses, including the highway patrolman before trial. (A proper disclosure by Rorvik of the intention to call the patrolman as an expert on civil liability would have warned Smith and led to probable further motions to the court respecting the foundation for the patrolman’s testimony as an expert.) ... If the information obtained by the patrolman through his investigation were insufficient for him to form an opinion as an expert, the lack of foundation to qualify him for his opinion would be an issue for determination.” [Citations omitted], (Emphasis supplied.)

Smith, 751 P.2d at 1056.

We do not conclude that Palmer is barred from testifying -under Smith. Here Johnson identified Palmer as an expert prior to trial, and Campbell twice challenged the foundation of Palmer’s opinion by requesting the court exclude Palmer’s testimony regarding the cause of the accident. Campbell engaged in extended cross-examination of witness Palmer. In denying Campbell’s pretrial motion in limine and her objection at trial, the trial court found that Palmer had sufficient information to testify as an expert regarding the cause of the accident.

We agree with the trial court’s holding. Palmer investigated the accident by measuring Campbell’s position in the roadway, examining Campbell’s injuries as well as the antenna, windshield, dents, and the places on Johnson’s fender where dust had been disturbed. In addition, he found no skid marks to indicate that Johnson applied his brakes prior to impact. After examining the physical evidence and obtaining witness statements, Palmer determined Campbell’s point of impact with the car and concluded that Campbell caused the accident by colliding with the right front fender of Johnson’s car.

Defendant asserts that this Court should defer to the ruling of the trial court which allowed the opinion testimony, citing Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077. Cline stated:

“ ... Under the Montana Rules of Evidence, the trial court is given wide latitude in determining whether to admit opinion testimony of investigative officers. Leeway is allowed in such instances, and provided that the cross examiner is given adequate opportunity to elicit any assumptions or facts underlying the expert’s opinion, the weight to be given the testimony is for the trier of fact to determine.” [Citations omitted.] (Emphasis supplied.)

Cline, 803 P.2d at 1080.

Under Cline, the trial court here was given wide latitude in determining whether to admit opinion evidence of the investigative officer. Palmer testified that he studied accident investigation during basic training at the Montana Law Enforcement Academy. After six years as a law enforcement officer, Palmer investigated approximately 200 accidents prior to this accident. The evidence obtained by witness Palmer during his investigation, coupled with his experience in accident investigation, provided a sufficient basis for the court to determine that Palmer had a proper foundation to testify. As in Cline, the record indicates that Campbell cross-examined Palmer to elicit the assumptions and facts underlying his opinion testimony. We conclude the District Court properly admitted the opinion testimony. We hold that it was not error to allow the investigating officer to offer opinion testimony regarding the cause of the accident.

We point out that in the present case, Campbell filed the appeal based on a partial trial transcript which contained only the testimony before the District Court on the part of Officer Palmer. It did not contain any of the testimony of other witnesses. The record does include minute entries made by the clerk which contain a summary of the testimony of some of the witnesses. As a result, we are not able to compare the testimony on the part of other witnesses to the transcribed testimony of Officer Palmer.

II

Was it reversible error for the investigating officer to offer opinion testimony regarding the unsafe behavior of a non-party driver?

Appellant contends Palmer’s testimony that it was unsafe for Mr. Reidle to stop his vehicle in the middle of the block to allow Campbell to cross was irrelevant, conclusory and prejudicial to Campbell’s case. Johnson contends that this argument is speculative and urges this Court to uphold the findings of the District Court when it stated:

‘While the conduct of Mr. Reidle does not appear to have anything to do with the accident itself, Plaintiffs speculate that any comment concerning the propriety of his [Reidle’s] actions may have been given great weight by the jury. However, there is nothing to indicate that the jury accorded any significant weight to such comment. To grant a new trial only on the basis of this argument would be speculation on the part of the Court.”

We conclude that the District Court correctly characterized the plaintiff’s argument as speculative and that the testimony regarding the propriety of the conduct of a non-party witness did not prejudice Campbell’s case. Campbell failed to offer any evidence tending to show that the testimony was significant.

We hold that it was not reversible error for the trial court to allow the officer to offer opinion testimony on the propriety of Reidle’s conduct.

Affirmed.

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

JUSTICE TRIEWEILER,

dissenting:

I dissent from the opinion of the majority.

This Court has gotten to the point where it automatically admits opinion testimony of law enforcement personnel in auto accident cases without adequate scrutiny of whether the testimony serves any of the purposes for which opinion testimony is normally allowed.

This is a simple case. Cassie Campbell was attempting to cross the highway when she was either struck by or ran into the vehicle being driven by the defendant. The issue is whether she negligently ran out into the street, or whether the defendant was negligent by failing to observe her and have his vehicle under sufficient control so that he could avoid her. If both were negligent, the issue was then how their negligence compared.

Including the parties, eight people witnessed the accident. The investigating officer, Dennis Palmer, was not one of them.

Some or all of these witnesses testified before the jury regarding their direct observations of how the accident occurred. Officer Palmer’s investigation and subsequent opinion based on that investigation added nothing to the direct observations of these witnesses. As will be shown, his opinion was based primarily on what he was told by the same witnesses who testified at trial.

When Officer Palmer arrived at the scene of the accident, the victim was lying in the street. The vehicle with which she collided had been moved and was parked further to the south. He marked her location on the street and called in another officer who took photographs of the vehicle. He also recorded the names of the people who had witnessed the accident and later took statements from each of them.

Officer Palmer testified that normally if there are skid marks at an accident scene he can determine speed and direction from observing and measuring them. However, he could not find any skid marks at this accident scene.

He testified that he normally determines the point of impact from debris left on the road, but at this accident scene he found neither scuff marks nor debris in the vicinity where the accident occurred. Therefore, he was unable to determine a point of impact.

He examined the defendant’s automobile for damage, and based upon the damage that he observed, he determined the point where the victim’s body collided with the defendant’s vehicle. However, what he observed added nothing to what he had already been told by the witnesses to the accident. Furthermore, he could not tell from looking at the car whether the victim stepped into the car, ran into the car, or was merely standing in the street when she was struck by the car.

His entire investigation consisted of interviewing witnesses, observing the vehicle, looking for skid marks and debris, and observing the whereabouts of the victim when he arrived. However, it was clear that the only part of that investigation which in any way enlightened him about how the accident occurred, was his interview of the witnesses.

Although he had training and qualifications which would have enabled him to estimate speed and identify a point of impact if sufficient physical evidence had been available, none of that evidence was available. There was nothing in his background or training which enabled him to draw any better conclusion from having interviewed the witnesses than the jury was able to draw from listening to those same witnesses. In spite of these facts and this lack of foundation, he was allowed to express the following opinion during the trial:

“It’s my opinion that the accident was caused by the sudden movement of the pedestrian in the middle of the block out into the traveled portion of the road.”

Whether Officer Palmer was qualified as an expert in this case requires an analysis of more than whether he was a law enforcement person who investigated an accident. It requires an analysis of our rules regarding opinion evidence and how they apply to the facts in this case. Rule 702, M.R.Evid., controls. It provides as follows:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

There was no scientific, technical, or other specialized knowledge which formed the basis for Officer Palmer’s opinion. His opinion was based exclusively on what he was told by the witnesses he interviewed.

This case is similar to Ployhar v. Board of Trustees (1980), 187 Mont. 363, 609 P.2d 1226. In that case, the victim of the accident was a student at Missoula Technical Center and enrolled in a heavy equipment operation class. At the time of the accident, he was working behind a Caterpillar being operated by another student when the Caterpillar reversed direction and ran over and crushed him. The victim’s family sued the school district for dangerous supervision and operation of the class.

One of the instructors at the school was called as a witness at trial and on cross-examination was allowed to give his opinion regarding the cause of the accident. We held that such opinion testimony was inappropriate and a basis for a new trial. In that opinion, we reached the following conclusion which is relevant to this case:

“Simms gave his opinion as to the proximate cause of the accident. Opinion evidence concerning the cause of an accident is admissible only if the subject matter is beyond the ordinary understanding of the jury. See Ziegler v. Crofoot (1973), 213 Kan. 480, 516 P.2d 954. The cause of the accident must be sufficiently complex to require explanation. See McGuire v. Nelson (1975), 167 Mont. 188, 536 P.2d 767; Massoni v. State Highway Commission (1974), 214 Kan. 844, 522 P.2d 973, 979. See also Dobkowski v. Lowe’s, Inc. (Ill.C.A.1974), 20 Ill.App.3d 275, 314 N.E.2d 623. Here, there was no need for such testimony. The accident was relatively simple. It involved a single tractor, and the actions of only two individuals, the driver of the tractor and the accident victim. At trial, an eyewitness gave his description of the accident, and other witnesses testified concerning the actions of the tractor driver and the decedent. This evidence appears to be sufficient to allow the jury to make an independent judgment as to the ultimate cause of the accident. Thus, we conclude there was no abuse of discretion in determining that opinion testimony was not needed here.
“The Board contends that Simms’ testimony was not prejudicial to the plaintiffs’ case. However, the extent to which the deceased’s own actions caused the accident was obviously a crucial part of the Board’s defense. No other witnesses gave their opinion as to the cause of the accident. These circumstances support the trial court’s conclusion that Simms’ testimony was manifestly prejudicial to the plaintiff’s case.”

Ployhar, 609 P.2d at 1228.

We excluded opinion evidence for similar reasons in State v. Howard (1981), 195 Mont. 400, 637 P.2d 15. In that case, the defendant was charged with attempted homicide and other crimes of violence against the victim. The physician who attended the victim in the emergency room at the hospital testified about strangulation marks on her neck and other bruises and damage that he observed on her body. In addition, he was allowed to express his opinion that the force which caused the marks he observed was intended to cause her death. We held that whether he could express such an opinion depended on Rule 702 set forth above, and we explained the test for admissibility under Rule 702 as follows:

“Stated another way, the test is:
‘... whether the subject is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness, or whether the matter is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ State v. Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983.
“Dr. Elliott inferred from the nature of the injuries that the person who inflicted them did so with an intent to murder. We find that under the circumstances of this case, the jury was as qualified as the doctor to draw an inference from the circumstantial evidence as to intent, and, therefore, the doctor’s opinion on intent was inadmissible under Rule 702, Montana Rules of Evidence.”

Howard, 637 P.2d at 17.

I find that both of these cases control the outcome in this case. In this case, the jury was as qualified as Officer Palmer to listen to the observations of the eyewitnesses to this accident and determine whether the accident occurred because of the victim’s sudden movement into the street or because the defendant failed to be sufficiently alert to avoid the victim when she crossed the street. The only things that Officer Palmer knew in addition to what he was told by those witnesses were the victim’s location when he arrived at the scene and the location of damage to the defendant’s vehicle. However, none of that information contributed to the opinion that he was allowed to express regarding the cause of this accident.

The majority relies on Cline v. Durden (1990), 246 Mont. 154, 803 P.2d 1077, as authority for the admission of Officer Palmer’s testimony. However, the only similarity between that case and this case is that there was an opinion offered by a law enforcement officer. That case did not involve a pedestrian-vehicle collision on the main street through town in broad daylight with eight direct witnesses available to testify. The Cline case involved a head-on snowmobile collision in the mountains. The only two competent witnesses were the plaintiff and his companion. The defendant had no recollection of what happened due to the trauma that he suffered. The only issue involved the orientation of the vehicles and their direction of travel at the point of impact. The investigating officer was allowed to express an opinion on that issue based upon physical evidence, including debris and spilled gasoline found at the scene. The deputy’s opinion in that case was based directly upon his training in accident reconstruction and not on what he was told by any witness who testified at trial.

What this Court has gotten in the habit of doing is simply looking to see whether law enforcement personnel have training in accident investigation and reconstruction and then, based on that training, concluding that they are automatically qualified to express an opinion at trial without looking to see if that opinion is based upon the officer’s training or experience. For other examples of such non sequitur analysis, see Foreman v. Minnie (1984), 211 Mont. 441, 689 P.2d 1210, and Scofield v. Estate of Wood (1984), 211 Mont. 59, 683 P.2d 1300. This kind of analysis is inconsistent with our rules for all other expert witnesses and should be corrected.

The only thing that Officer Palmer added to this case beyond what the eyewitnesses had to offer was his opinion and his uniform. That was unfair. I would reverse.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.


author:
JUSTICE TRIEWEILER
      JUSTICE WEBER,

text:
    RAE SUBDIVISION COUNTY WATER & SEWER DISTRICT NO. 313, a Montana public service corporation, Plaintiff and Respondent, v. FRANK J. TRUNK & SON, a Montana partnership; FRANK J. TRUNK JR., PATRICIA A. TRUNK, and MARIE DOTING, Defendants and Appellants.
    No. 91-228.
    Submitted Oct. 10, 1991.
    Decided Dec. 4, 1991.
    Rehearing Denied March 9, 1992.
    48 St.Rep. 1065.
    251 Mont. 22.
    823 P.2d 845.

      For Appellants: Brian H. Gallik argued and James H. Goetz, Goetz, Madden & Dunn; J. David Penwell; John Brown, Cok & Wheat; Bozeman.
    For Respondent: Michael J. Lilly argued, Berg Law Firm, Bozeman.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

RAE Subdivision Water and Sewer District (RAE) sued the Trunks in the Eighteenth Judicial District Court in Gallatin County to collect “annual assessments” for the retirement of bonded indebtedness. The parties stipulated to relevant facts and then filed separate summary judgment motions. The District Court granted RAE’s motion and denied the Trunks’ motion. The Trunks unsuccessfully moved for reconsideration and now appeal. We reverse.

The issues are:

1. Did the District Court err in finding that RAE has authority to levy “annual assessments” against the Trunks?
2. Did the District Court err in finding that the Trunks are personally liable for these “annual assessments”? Because we conclude that RAE had no authority to levy “annual assessments,” we will not address the second issue.

RAE is a water and sewer district located outside Bozeman. The Trunks own unimproved real property within the district, but that property is not connected to RAE’s water and sewer system. The Trunks can demand to be connected to the system at any time but had not done so at the time of this litigation. RAE finances its physical plant and operations through monthly service charges, special assessments, and “annual assessments.” RAE uses the “annual assessments” to retire bonded indebtedness it incurred to finance the construction of its water and sewer system.

RAE bills only those property owners who are actually connected to the system for monthly service charges. It also levies “annual assessments” against all property owners within the district, regardless of whether the property is actually connected to the water and sewer system. RAE has never billed the Trunks for monthly service charges, but it has levied “annual assessments” against them. The Trunks have not paid these “annual assessments” since 1981, and if the assessments are valid the amount currently delinquent is $110,196.09.

In 1985, RAE sued the Trunks to foreclose a lien for assessments against their property. The District Court dismissed that action on the theory that only Gallatin County could foreclose such a tax lien. RAE did not appeal. Instead, RAE requested Gallatin County to collect the assessments. Gallatin County refused, and RAE sought a writ of mandamus to compel the county to do as it asked. The District Court denied the writ, holding that Gallatin County had no clear legal duty to collect the delinquent assessments. RAE appealed, and we affirmed. RAE Subdivision v. Gallatin County (1988), 233 Mont. 456, 460, 760 P.2d 755, 757 (RAE I). RAE then filed the instant action and ultimately prevailed in the District Court.

The issue in this appeal is whether the District Court erred in finding that RAE has authority to levy “annual assessments” against the Trunks.

The statutes governing fund-raising devices for water and sewer districts do not expressly provide for “annual assessments.” Section 7-13-2301, MCA, provides in pertinent part:

“7-13-2301. Establishment of charges for services. (1) The board of directors shall fix all water and sewer rates and shall, through the general manager, collect the sewer charges and the charges for the sale and distribution of water to all users.
“(2) The board in the furnishing of water, sewer service, other services, and facilities shall fix such rate, fee, toll, rent, or other charge as will pay the operating expenses of the district, provide for repairs and depreciation of works owned or operated by it, pay the interest on any bonded debt, and so far as possible, provide a sinking or other fund for the payment of the principal of such debt as it may become due.” [Emphasis added.]

The Trunks argue that this section applies only to users and that it cannot apply to those who are not connected to the water and sewer system. RAE concedes that subsection (1) is limited to users but argues that the words “other charge” in subsection (2) authorize it to assess non-users in order to make them pay their fair share of the bonded indebtedness.

Section 7-13-2302(1), MCA, describes what happens if the fund-raising devices listed in 7-13-2301, MCA, prove in adequate:

“7-13-2302. Levy of taxes to meet bond obligations and other expenses. (1) If from any cause the revenues of the district shall be inadequate to pay the interest or principal of any bonded debt as it becomes due or any other expenses or claims against the district, then the board of directors must ... furnish to the board ... of county commissioners ... an estimate in writing:
“(a) of the amount of money required by the district for the payment of the principal of or interest on any bonded debt as it becomes due;
“(b) of the amount of money required to establish reasonable reserve funds ... and
“(c) of the amount of money required by the district for any other purpose set forth in this section.” [Emphasis added.]

The county commissioners must then levy an appropriate tax on the lands in the water and sewer district. Section 7-13-2302(2), MCA. The Trunks argue that this is the only procedure RAE can use to reach non-users. RAE admits that it did not follow this “tax” procedure but argues that the “tax” procedure becomes necessary only in the event of an emergency.

In RAE’s view, the only relevant distinction between the statutes is the identity of the assessing or taxing entity. RAE argues that 7-13-2301, MCA, lists the fund-raising devices available to the district and that 7-13-2302, MCA, lists the fund-raising devices available to the county. By this argument, it seems to imply that the revenue powers of the district and the county are co-extensive, and that the district has an “assessment” power very similar to the county’s “taxing” power. We disagree.

The statutes governing the county “tax” procedure require notice, 7-13-2304, MCA, and a hearing, 7-13-2307, MCA. Section 7-13-2301, MCA, the statute upon which RAE relies for its “assessment” power, does not contain any similar notice and hearing provisions. Thus, RAE argues that it can achieve by fiat what the county cannot do without affording fundamental due process.

We find it instructive to compare 7-13-2301, MCA, with the statutes governing conservancy districts. These districts have express statutory authority to levy assessments without supervision by the county commissioners. Section 85-9-601, MCA. Furthermore, conservancy districts are statutorily obligated to provide due process. Section 85-9-602, MCA. In order to conclude that RAE is authorized to levy assessments, we would have to imply that power where it does not exist in 7-13-2301, MCA. In construing statutes, it is not our role to “insert what has been omitted.” Section 1-2-101, MCA. Thus, we decline to read an assessment power into 7-13-2301, MCA.

RAE cites RAE I for the proposition that we have already upheld the assessments at issue in this case. In particular, RAE points to the following language in that opinion:

“RAE has the power to sue under 7-13-2217(l)(b), MCA. We conclude that under that statute and 7-13-2301, MCA, RAE had the power to bring an action to collect the delinquent assessments from Mr. Trunk, without referring the same to the county for collection as taxes.” [Emphasis added.]
RAE I, 760 P.2d at 757.Because the Trunks were notparties to RAE I, RAE concedes that collateral estoppel does not apply. Instead, it argues that the quoted language should be extremely persuasive in our resolution of the present appeal. We do not share RAE’s assessment of the import of that language.

“In RAE I we framed the issue as follows:

“Did the trial court err in concluding that Gallatin County did not have a clear legal duty to collect the delinquent water and sewer assessments levied by RAE?” [Emphasis added.]
RAE I, 760 P.2d at 756. We held that the county had no duty to collect RAE’s assessments under the circumstances of this case because the assessments had not been levied by the county. We said:
“We conclude that the statutes do not set forth a clear legal duty on the part of the county to collect the delinquent water charges. The county can assess taxes sufficient to cover both the bonded indebtedness payments and operating expenses, but in order to do so there must be notice given in advance so that all interested parties may protest the tax levy. Section[s] 7-13-2304 through 2307, MCA. Delinquent water and sewer assessments levied against an individual are different from taxes levied against all property within the district under 7-13-2302, MCA.” [Emphasis in original.]

RAE I, 760 P.2d at 757.

Neither RAE nor Gallatin County briefed or argued the validity of the assessments themselves. That question was not before us. We held only that 7-13-2301, MCA, did not impose a clear legal duty upon Gallatin County to collect RAE’s assessments once they had become delinquent. RAE I, 760 P.2d at 757. Any discussion by this Court of the underlying validity of the assessments themselves was therefore dicta and not binding for purposes of this appeal.

We hold that 7-13-2301, RCA, does not authorize RAE to levy “annual assessments” against non-users. The assessments were therefore void.

Reversed.

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

JUSTICE WEBER,

specially concurring:

As I agree with the legal analysis of the majority opinion, I join in the holding.

In RAE I, 760 P.2d at 757, we stated:

“RAE has the power to sue under 7-13-2217(l)(b), MCA. We conclude that under that statute and 7-13-2301, MCA, RAE has the power to bring an action to collect the delinquent assessments from Mr. Trunk, without referring the same to the county for collection as taxes. We recognize that this conclusion contradicts the ruling of the district court in the first action brought by RAE. Unfortunately, RAE chose not to appeal the judgment in that case.”

The foregoing constitute the Court’s conclusion that RAE had the power to sue under the statute and the power to bring an action to collect the delinquent assessments from Mr. Trunk. That is the procedure followed in the present action which we are now considering on this appeal.

I am not able to join in the conclusion stated by the majority: “Any discussion by this Court of the underlying validity of the assessments themselves was therefore dicta and not binding for purposes of this appeal.” (Emphasis added.) Technically, it is true that the stated conclusions were dicta because the only issue presented in the case was whether or not the county had a duty to collect the delinquent assessments, but that does not address the clear suggestion made by the Court of the appropriate procedure.

I believe it more appropriate to acknowledge that we made a mistake in RAE 7. It is true that we did not have all of the facts before us in RAE I, and it is also true that the present case establishes that the conclusion in RAE 7 was incorrect. As the author of RAE 7,1 prefer to acknowledge our mistake in reaching the stated conclusions, rather than using a theory of dicta to disclaim responsibility.