author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NEAL ALLEN HAGE, Defendant and Appellant.
    No. 92-258.
    Submitted on Briefs February 4, 1993.
    Rehearing Denied June 23, 1993.
    Decided June 1, 1993.
    50 St.Rep. 631.
    853 P.2d 1251.
    258 Mont. 498.

      See C.J.S. Criminal Law § 1370.
    For Defendant and Appellant: Michael Donahoe, Donahoe & Yeshe, Helena.

      For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant, Helena; Robert M. McCarthy, County Attorney, Brad Newman, Deputy, Butte.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a Second Judicial District Court, Silver Bow County, jury verdict of the deliberate homicide of Willie Fleming. We affirm.

There are five issues on appeal:

1. Did the trial court err in informing the jury, outside of the presence of the defendant and counsel, that they would not be allowed to take notes?

2. Did the trial court err when it prohibited the defendant from cross-examining certain witnesses on their prior crimes?

3. Did the trial court err when it would not allow the defendant to introduce evidence regarding Mitch Spindler?

4. Was the evidence produced by the State of the defendant’s activities on the night before the shooting improper 404(b) evidence or part of the res gestae of the crime charged?

5. Did the trial court err when it ruled that the defendant’s evidence on juror misconduct was inadmissible?

On the evening of July 11, 1991 in Butte, Montana, William (Willie) Fleming went to Mitch and Cheryl Spindler’s house. Willie and Mitch were having a beer when Cheryl joined them. At about 9:00 p.m., the appellant appeared at the Spindler home. Cheryl testified that the appellant told her that his father had passed away and he was angry, mad and hurt. The appellant joined Mitch and Willie for a beer and stated that he had consumed beer and various pills before his arrival at the Spindler home. At some point thereafter, the appellant showed a handgun he had in his possession and was “waving it around and stuff.”

Lorraine Valentine (Lorraine) and Mick Jacobson (Mick), friends of the Spindlers came to the house around 11:45 p.m. to see if Mitch and Cheryl wanted to go to a comedy show. Mick was to start a prison term the following morning for a drug related offense. The Spindlers did not accompany them to the show but Mick and Lorraine returned to the Spindler home after the show. Cheryl testified that the appellant appeared to be quite upset at Mick and was “harassing” him but Mick did not want any trouble, and attempted to leave.

Then the appellant asked the group to come to his house for a drink before Mick had to leave the next day. Cheryl and Mitch Spindler drove their car with the appellant as a passenger. Cheryl testified that during the drive to the appellant’s house, the appellant stated that he was going to kill Mick and make it look like a burglary. They arrived at the appellant’s house for drinks and about 15 minutes later, Lorraine and Mick arrived. Cheryl testified that she left with Mitch and Willie first at about 1:30 or 2:30 a.m., they all returned to the Spindler home and Mitch and Willie continued drinking. Cheryl also testified that the appellant called sometime after 3:00 a.m. and wanted Mick’s address. She gave the telephone to Mitch. The appellant returned to the Spindler house while Willie was still there but Willie and the appellant left the house about 5:30 or 6:00 a.m.

Steve Fleming, Willie’s half-brother, testified that Willie came home about 5:30 a.m. on July 12, with the appellant, and they stayed at the house for approximately 15 minutes. Steve also testified that the two returned to the Fleming house at about 7:30 a.m., Willie called his boss, Tom Tucker, and the two left about 20 minutes later. Willie’s sister, Billie Jo Blackburn, confirmed her brother, Steve’s testimony. This was the last time Steve and Billie Jo saw Willie Fleming alive.

The appellant, however, testified that he went to the Spindler house on July 11,1991, at about 7:00 or 7:30 p.m. for drinks. He stated that Cheryl and Mitch Spindler were there and so was Willie Fleming, who was introduced as “Jim.” He further testified that Mick and Lorraine arrived about 45 minutes later. The appellant stated that he had no gun when he was in the Spindler residence but there was a gun owned by Mitch that was in view. He further testified that when the group went to his house, he showed Mitch one of his guns. At some point later, Cheryl, Mitch and Willie left the appellant’s house and Mick and Lorraine left some time later. Mitch called the appellant later and suggested that he return to the Spindler house so appellant packed up some things and left.

The appellant testified that he arrived home around 3:00 a.m., cleaned the kitchen and went to bed. Later that morning, the appellant was awakened by the sound of breaking glass. He woke his wife, asked her to grab his gun and give it to him, which she did, and he got dressed. According to his testimony, he proceeded into the hall and down the stairs. As he approached the bottom of the steps, he saw broken glass and someone he thought was Willie Fleming in the direction of the kitchen. He confronted Willie and asked him to put his hands on his head and turn around. He said Willie did not put his hands on his head but did turn around and shortly thereafter, he started to come toward the appellant. The appellant shot Willie in the leg and after a few seconds, Willie sat down. The appellant then asked his wife for a towel and applied it to Willie’s leg. He then went to the phone to call the police, but he saw Willie coming toward him. The appellant retrieved a gun from his wife’s purse in the closet and tried to get Willie to stop coming toward him. He stated that Willie backed away for a short time and then came toward him again in a position to tackle the appellant. The appellant aimed the gun at Willie and though he testified that he tried to hit him in the abdomen or his leg, he fired and hit him in the head. The appellant picked up the phone and called the police at 911.

When the police arrived, the appellant was on the telephone and his wife was also in the residence. Willie was lying inside the front door with his head toward the door. The EMTs entered next, noted a wound in the leg and one in the head and checked for pulses but found no signs of life. Lieutenant Walsh advised the appellant of his Miranda rights and he was taken to the Public Safety Building and then transported to the county jail. Trial was held from January 13 through January 17, 1992. The appellant was found guilty of deliberate homicide by a jury and sentenced to the state prison for forty years with an additional 10 years for use of a dangerous weapon. This appeal followed.

The scope of review for evidentiary rulings and trial administration issues by the trial court is whether the court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

1. Taking notes by the Jury

The appellant argues “that the Judge and/or his Clerk had ex parte contact with members of the Jury during the trial concerning the taking of notes and ruled that they could not.” The appellant contends that this ex parte contact between the court and the jury was improper and was reversible error. The State counters that the majority of jurisdictions hold that the matter of note-taking is within the sound discretion of the court.

The appellant cites a Montana statute, which he argues supports an argument that “[o]nee a juror requests permission to take notes that permission should be granted and the jurors who do decided (sic) to take notes must be permitted to make use of them during deliberations.” Section 46-16-504, MCA, states:

Upon retiring for deliberation, the jurors may take with them the written jury instructions read by the court, notes of the proceedings taken by themselves, and all exhibits that have been received as evidence in the cause that in the opinion of the court will be necessary.

This statute does not concern whether a juror may take notes in the first place, but whether a juror may take the notes upon retiring to the jury room for deliberation. It is not applicable.

Case law supports the State’s argument that the matter of note-taking is within the discretion of the court. In fact, “it has never been suggested that the judge must permit the practice; the question has always been whether he must forbid it. Moreover, it is at most a matter of discretion.” United States v. Campbell (N.D. Iowa, W.D. 1956), 138 F. Supp. 344, 352. The decision as to whether jury members may take notes is a matter within the discretion of the court. United States v. Murray (9th Cir. 1973), 492 F.2d 178, 193; United States v. Johnson (6th Cir. 1978), 584 F.2d 148, 157; United States v. Anthony (8th Cir. 1977), 565 F.2d 533, 536; People v. Ellinger (Colo. App. 1987), 754 P.2d 396, 397; Alaska State Housing Authority v. Contento (Alaska 1967), 432 P.2d 117, 122; Billings v. People (Colo. 1970), 466 P.2d 474, 478. The trial court did not err in prohibiting the jury from taking notes during the trial.

The appellant further contends he and his counsel should have been present when the judge told the jury they could not take notes. We conclude that the judge’s comment to the jury concerning taking notes did not have a deleterious effect on the appellant’s case. The judge merely told the jury they could not take notes during the trial because it might detract them from important points of the case. The judge instructed on a matter that was within his discretion. He did not remark about a fact in controversy in the case nor did he say anything to influence the jury in a certain direction. U.S. v. Madrid (9th Cir. 1988), 842 F.2d 1090, 1094-95. Madrid states “that a defendant must demonstrate ‘actual prejudice’ resulting from an ex parte contact to receive a new trial.” Madrid at 1093. The appellant in this case provided no information in his offers of proof in conjunction with post trial motions for an acquittal or a new trial that would point to any prejudice to the appellant.

In Rushen v. Spain (1983), 464 U.S. 114, 118-119, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267, 273, the court stated:

[W]e have previously noted that the Constitution ‘does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice. (Citations omitted.)

Here, the judge gave a short message to the jury about a matter within his discretion long before the jury entered deliberations. The trial court did not abuse its discretion when it informed the jury that they could not take notes, even if the parties and their counsel are not present at the time.

2. Prior Criminal Convictions of Two Witnesses

The appellant argues that the trial court abused its discretion when it would not allow him to question two witnesses about their prior criminal histories when the prosecution asked about their “legal troubles” on direct examination. The trial court ruled in both situations that further testimony about prior crimes would be irrelevant.

The State argues that Rule 609, M.R.Evid., which states that “[for] the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible,” prohibited the appellant from inquiring further into the criminal history of the two witnesses. However, the State did inquire about the previous crimes on direct examination.

The better argument is that the determination of relevancy is a matter within the discretion of the court. “The District Court has broad discretion to determine whether or not evidence is relevant. Absent a showing that the District Court has abused its discretion, this Court will not overturn the District Court’s determination of relevancy.” State v. Sadowski (1991), 247 Mont. 63, 69, 805 P.2d 537, 541. The State’s attorney questioned Cheryl about a recent charge for obtaining dangerous prescription drugs. The attorney elicited that the charge had been dropped from a felony to a misdemeanor and she pled guilty and was sentenced. She stated that the charge had nothing to do with her testimony at the appellant’s trial. Mick testified that he had been residing at the Great Falls Pre-Release Center, having been transferred from the Montana State Prison. He was sent to prison on a conviction for felony possession of dangerous drugs with intent to sell. When the defense counsel tried to inquire further into the witness’ prior criminal history, the State objected and stated that “further inquiry into that is not relevant under Rule 608 of the Rules of Procedure that has any probative value of the Defendant’s truthfulness or untruthfulness.” The trial court agreed and sustained the objection. See Rule 608, M.R. Evid. and Commission Comments. No offers of proof were made. We conclude that the trial court did not abuse its discretion in ruling that evidence of other prior crimes of the two witnesses was irrelevant.

3. Introduction of Evidence Regarding Non-witness Mitch Spindler

The appellant states that granting the State’s motion to exclude evidence concerning Mitch Spindler was a reversible error. The State counters that any evidence about Mitch Spindler, a non-witness was irrelevant. We agree.

Mitch Spindler was an associate of Willie Fleming, the deceased, and the appellant. He was present at the parties the night before the shooting death of Willie Fleming and would have testified had he not died before the time of trial. However, the evidence of his lifestyle and former criminal history was irrelevant to the homicide ofWillie Fleming on the morning of July 12,1991. The trial court did not abuse its discretion in excluding evidence of the non-witness Mitch Spindler.

4. Allowing the State to Use 404(b) Evidence

The appellant argues that the State promised not to put on any Rule 404(b) evidence at trial but then questioned witnesses about actions and statements of the appellant on the evening prior to the shooting death. The State argues that these actions and statements are part of the res gestae of the homicide and not “other acts” as the appellant claims.

Rule 404(b), M.R. Evid., states:

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

The appellant contends that evidence of a conversation between himself and the Spindlers about the appellant shooting Mick Jacobson, evidence that the appellant was angry and upset about the death of his father and evidence that he was “brandishing” a gun during the evening was evidence of other acts and therefore, the State should have provided a “Just” notice.

Cheryl Spindler testified to the following conversation between herself, her husband and the appellant:

As we were going up Excelsior he asked Mitch and I if we had ever witnessed a murder and we says, “No, and we never want to,” and he proceeded to say that he was going to get Mick up at his house, Mick was coming up, he was going to get Mick up to his house and he said that he was going to kill him and make it look like a burglary but he didn’t want any witnesses around. He wanted Mitch and I to leave when Mick got up there.

Lorraine Valentine, Mick Jacobson and Cheryl Spindler also testified that the appellant had a gun during the evening and was “waving it around, putting it in and out of the case, holding it in his hand.” The State contends that the conversation above and the appellant’s waving the gun around show the appellant’s state of mind and as such are relevant to the crime.

We agree. As stated inState v. Riley (1982), 199 Mont. 413, 425-426, 649 P.d 1273, 1279:

This Court has identified several kinds of evidence which may be admitted despite the fact it tends to prove crimes other than those charged. See State v. Meidinger (1972), 160 Mont. 310, 321, 502 P.2d 58, 65, wherein this Court allowed evidence of crimes committed in preparation for the charged offense as part of res gestae. In addition, in State v. Frates (1972), 160 Mont. 431, 437, 503 P.2d 47, 50, we allowed evidence of prior drug sales between the defendant and the police informant as “part of the corpus delicti of the crime ... charged.” In a series of recent cases, the Court held that evidence of crimes which is inextricably or inseparably linked with the crime charged may be admitted without regard to the rules governing “other crimes” evidence.
The common thread tying these cases together is the fact that the State is entitled to present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it, even when such evidence discloses crimes other than those charged. (Citations omitted.)

“This rule overrides the requirements of Just.” State v. Gillham (1983), 206 Mont. 169, 178, 670 P.2d 544, 549. We conclude that the appellant’s statements and actions are relevant to his state of mind and actions in the early morning of July 12, 1991. The trial court did not abuse its discretion in allowing this evidence to come in because it was relevant to the appellant’s state of mind and the crime charged.

5. Juror Misconduct

The appellant argues “that a new trial was necessary because of jury misconduct.” Specifically, the appellant complains that:

1. The jurors conducted an experiment in which some jurors “acted out” the possibility that the decedent was trying to get away at the time he was shot.
2. A juror felt pressured by other jurors to decide the case.
3. A juror informed the other jurors that he had personal knowledge that a telephone log was kept of all telephone calls made from the jail.
4. The jury used a “blow up of a detective’s crime scene sketch.”
5. Some of the jurors had to intermingle with spectators during breaks of the trial.

The trial court concluded that the allegations of juror misconduct did not fall within the exceptions of Rule 606(b), M.R. Evid., and therefore granted the State’s motions to strike the single juror’s affidavit the appellant sought to introduce and to quash the subpoenas issued to jurors who had been interviewed by the defense investigator. As to the appellant’s allegations of juror misconduct, the trial court stated:

All I can do is consider that you’re talking about the frame of mind of the jurors during their deliberations and whether they were influenced by any of the activities during the course of the trial. Again, that’s covered by the Rule 606(b), you’re not allowed do to (sic) that. And so that motion is denied. All on the basis of the application of the Rule 606(b).

We agree with the trial court’s rulings that under Rule 606(b), M.R. Evid., these are not matters that fall within the rule’s exceptions and are therefore not matters about which the court can inquire. Rule 606(b), M.R. Evid., states that:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

The five matters complained of by the appellant do not fall within the three exceptions to Rule 606(b), M.R. Evid. They are associated with either the mental processes of the jurors or come within the knowledge and experience they bring with them to the jury room. Harry v. Elderkin (1981), 196 Mont. 1, 7-8, 637 P.2d 809, 813, is instructive concerning whether jury affidavits may be used to impeach a jury verdict. Harry states:

The cases on the use of juror affidavits fall into two major categories: 1) those involving external influence on the jury and 2) those involving internal influence on the jury. Where external influence is exerted on the jury or where extraneous prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was thereby deprived of a fair trial. On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law. (Citations omitted.)

Harry, at 7-8, 637 P.2d at 813. In the present case, the appellant’s complaints fall within internal influences and therefore, cannot be used to impeach the jury verdict. The jury’s use of demonstrative evidence and experimentation with the evidence are not external influences but part of the mental processes of the jurors during deliberation. State v. DeMers (1988), 234 Mont. 273, 277-278, 762 P.2d 860, 863. Pressure by other jurors also does not qualify as an exception to Rule 606(b), M.R. Evid. “A juror’s physical, mental, and emotional condition is inherent in the verdict, and the effect of such a condition on a juror’s vote is within the prohibition of Rule 606(b).” DeMers, at 277-278, 762 P.2d at 863. Additionally, knowledge and information shared from one juror to another or others is not an extraneous influence. “Jurors are expected to bring to the courtroom their own knowledge and experience to aid in the resolution of a case. ... For the juror to have considered the credibility of defendant’s expert witness within the parameters of his own experience and background is insufficient to qualify as an exception to Rule 606(b).” DeMers, at 277-278, 762 P.2d at 863.

Finally, although the appellant states that the jurors were subjected to the “heavy atmosphere” of the trial and some jurors used a restroom that was also used by spectators at the trial, some of whom were the decedent’s relatives and friends, the appellant can point to no specific instance where the jurors were bothered or influenced by any of the spectators.

In conclusion, the trial court did not abuse its discretion when it ruled that defense counsel could not impeach the jury verdict through affidavits and testimony because there were no external prejudicial influences on the jury.

AFFIRMED.

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


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE WEBER

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DUANE ANDERSON, Defendant and Appellant.
    No. 92-298.
    Submitted on Briefs December 17, 1992.
    Rehearing Denied June 23, 1993.
    Decided June 1, 1993.
    50 St.Rep. 637.
    853 P.2d 1245.
    258 Mont. 510.
    See C.J.S. Motor Vehicles § 593(2).
    For Defendant and Appellant: Donald L. Shaffer, Libby.

      For Plaintiff and Respondent: Marc Racicot, Attorney General, John Paulson, Assistant Attorney General, Helena; Scott B. Spencer, Lincoln County Attorney, Libby.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Robert Duane Anderson was convicted in the Nineteenth Judicial District, Lincoln County, of Criminal Possession of Dangerous Drugs with Intent to Sell in violation of § 45-9-103, MCA. Anderson appeals from the District Court’s denial of his motion to suppress evidence obtained in the warrantless search of his vehicle. We reverse and remand.

The dispositive issue on appeal is:

Did the Lincoln County Sheriff’s Department have a particularized suspicion to justify an investigative stop of the defendant’s vehicle?

In the early afternoon on Tuesday, October 8, 1991, the Lincoln County Sheriff’s Department received a tip that Robert Duane Anderson and another individual were leaving Libby, Montana, and driving to Washington to retrieve a large quantity of marijuana. The informant told Officer Don Bemall that Anderson and his fellow passenger would be traveling in Anderson’s blue Toyota pickup and that they would be returning to Montana in the late night on October 8,1991.

Officer Bernall discussed the tip with County Attorney Scott B. Spencer and they decided the tip should be confirmed before applying for a search warrant. They devised a stakeout strategy to verify the tip and to conduct further investigation. By approximately 6:00 p.m. on October 8, 1991, the plan was implemented.

The dispatcher at the Lincoln County Sheriff’s Office directed Officers Doug Johnson and Klint Gassett to drive in two separate patrol cars to the Idaho-Montana border on U.S. Highway 2. Two other officers were directed to the Idaho-Montana state line on Highway 56. The officers were instructed to wait in their positions until they received a message from Officer Bernall that he had sighted Anderson’s blue pickup, and once the pickup crossed the Idaho border into Montana, the officers were to stop it for further investigation.

Night fell, and in the early morning hours of October 9, 1991, Officer Bernall traveled west into Idaho on U.S. Highway 2, in an effort to locate Anderson’s pickup. At about 1:20 a.m., Officer Bernall sighted a blue pickup traveling eastbound toward Montana. Officer Bernall alerted Officers Johnson and Gassett by radio that he had sighted what he believed to be Anderson’s pickup. Officer Bernall instructed the two officers to verify the pickup’s license plate by following it. Anderson passed the two patrol cars on Highway 2, just inside the Montana border. By following the pickup, the officers confirmed that the license plate was Anderson’s.

Officer Gassett instructed Officer Johnson to conduct a traffic stop on Anderson’s pickup. Officer Gassett testified at trial that although Anderson had not violated any traffic laws to initiate a traffic stop, the officers conducted such a stop nonetheless. Officer Johnson activated his red top lights and signalled to Anderson to pull to the side of the road. Anderson stopped his pickup.

Officer Johnson shined his spotlight on the pickup. Neither of the officers approached the stopped vehicle to ask the driver or passenger for a driver’s license, proof of identification, or proof of insurance, despite not knowing Anderson or the passenger. The officers yelled to the men to get out of the pickup. Officer Gassett called the passenger Michael Hathaway. Michael Romine stepped out of the passenger’s side of the pickup and walked into the ditch beside the highway. Officer Gassett pulled his gun and yelled at Romine to “get his hands up,” and to come over to his patrol car. Romine complied and proceeded toward the officer as instructed.

When Romine reached the patrol car, Officer Gassett directed him to lay spread eagle against the car with his hands on the hood. The officer conducted a pat-down search on Romine (which the officer later testified was for the purpose of looking for weapons that could harm the officers). During the pat-down, the officer felt and removed a small, hard object in Romine’s right shirt pocket. The object was approximately three inches long and three-quarters inch in diameter. It was a single hit marijuana pipe. Officer Gassett also removed Romine’s wallet from his pocket, told Romine he was under arrest, handcuffed him, and placed him in the back seat of the patrol car.

Officer Johnson conducted a pat-down search on Anderson, but did not arrest him. The officers detained Anderson in the area of the patrol cars. Officer Bernall arrived a short time later.

Subsequent to the stop, the removal of both Anderson and Romine from the pickup, and the initial body pat-down searches, Officers Bernall and Gassett conducted a search of Anderson’s pickup. On the floorboards of the pickup on the driver’s side, Officer Bernall discovered a brown paper grocery bag. The top of the bag was rolled shut. Officer Bernall opened the bag and observed what he believed to be marijuana. The officers arrested Anderson for possession of dangerous drugs.

Officer Bernall drove the pickup to Libby and impounded the vehicle. The officers then obtained a search warrant for the pickup. At approximately 3:40 a.m., on October 9,1991, the officers searched the pickup and found 11 pounds of marijuana behind the pickup seat.

On October 9, 1991, the State formally charged Anderson by complaint with the offense of Criminal Possession of Dangerous Drugs with Intent to Sell in violation of § 45-9-103, MCA. At a scheduled suppression hearing, Anderson made a motion to suppress physical evidence obtained in the search of his pickup, based on the alleged illegality of the search. The District Court denied Anderson’s motion. Anderson then entered an Alford plea, preserving his right to appeal the refusal to suppress the evidence seized from the vehicle. The District Court accepted Anderson’s plea and sentenced him to 13 years in prison. Anderson appeals the court’s denial of his motion to suppress the evidence obtained in the search.

The issue on appeal is whether the Lincoln County Sheriff’s Department had a particularized suspicion to justify an investigative stop of the defendant’s vehicle.

Anderson contends the State’s evidence was obtained from an illegal search of his pickup, and therefore, the District Court erred when it denied his motion to suppress. We agree with Anderson that the warrantless search of his pickup and subsequent seizure of the contraband were unlawful. We conclude that the Lincoln County Sheriff’s officers conducted an unjustified investigatory stop of Anderson’s pickup and that, therefore, the search of that vehicle was illegal.

In 1968, the United States Supreme Court recognized that a police officer may stop an individual to investigate possible criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio (1968), 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906-07. The Supreme Court also recognized, however, that the Fourth Amendment applies to seizures of the person, Terry, 392 U.S. at 9, 88 S.Ct. at 1873, and investigatory stops such as the stop of Anderson’s pickup. United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628. In Terry, the Supreme Court held that an unparticularized suspicion or “hunch” is not sufficient cause to stop and frisk a person, and that an investigatory stop and frisk will be justified only when it is based on specific, articulable facts from which the officer could reasonably infer that the individual is engaged in criminal activity and is armed and dangerous. Terry, 392 U.S. 1, 88 S.Ct. 1868.

In Cortez, a post-Terry decision regarding investigative stops, the United States Supreme Court recognized that terms like “articulable reasons” and “founded suspicions,” referred to by courts in cases such as Terry, are not self-defining, and that further guidance was necessary to know when an officer has sufficient cause to make an investigatory stop. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95.

In Cortez, the Supreme Court held that to justify an investigative stop of a vehicle, detaining officers must have a particularized suspicion comprised of (1) objective data and circumstantial evidence from which an experienced officer can make inferences, and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

In State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, we adopted the Cortez standard required to justify a valid investigatory stop of an individual or vehicle. We held that probable cause was no longer necessary in Montana to make a limited and reasonable investigatory stop of an individual or vehicle; and that the lower particularized suspicion standard, as set forth in Cortez, was sufficient justification for a permissible stop.

In 1991, the Montana Legislature amended the investigative stop statute to reflect the particularized suspicion standard set forth in Gopher. Section 46-5-401, MCA, provides:

Investigative Stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

Both Cortez and Gopher are clear that objective data must form the basis of the officer’s particularized suspicion before a stop is valid. Objective data may be based on “various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.” Cortez, 449 U.S. at 418, 101 S.Ct. at 695. From objective data, a trained officer draws inferences and makes deductions that lead the officer to a resulting suspicion that the individual is involved in criminal activity. Gopher, 193 Mont. at 192, 631 P.2d at 295 (citing Cortez, 449 U.S. at 418, 101 S.Ct. at 695). Based on the evidence before this Court, we hold that the Lincoln County Sheriff’s Office did not have objective data, as required by Cortez and Gopher, upon which to form a resulting suspicion that Anderson was involved in a crime.

The State asserts, on appeal, that the informant’s tip served as a sufficient basis to justify the stop of Anderson’s vehicle. The State relies on the precedent set forth in Adams v. Williams (1972), 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, and State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959 — two cases in which an informant’s tip served as the initial basis for an investigative stop. We conclude that the facts of both Adams and Sharp are distinguishable from the facts in the present case and that the informant’s tip in the present case did not give rise to a particularized suspicion of criminal activity.

In Adams, the police officer was acting on a tip supplied moments earlier by an informant, and the United States Supreme Court held that the informant’s tip had sufficient indicia of reliability to justify the officer’s stop. Adams, 407 U.S. at 147, 92 S.Ct. at 1924. By contrast, the officer in the present case relied on an informant’s tip which included no factual basis to indicate its reliability. The State concedes that it had no information regarding the basis of the informant’s knowledge.

In Sharp, a citizen informer had just called the police to report a possible DUI offense and the informant provided the police with information to find the vehicle. The police officer corroborated the informant’s tip with his own observations at the scene. He noticed the defendant’s vehicle stopped halfway in the road, saw attendant skid marks near the car, and observed the vehicle pulling away from him when he arrived. We held that based on the informant’s tip and the officer’s observations at the scene which corroborated the tip, the officer had a particularized suspicion sufficient to stop the vehicle to investigate a possible crime. Sharp, 217 Mont. at 45-46, 702 P.2d at 962.

In contrast to Sharp, none of the observations made in this case prior to the stop of Anderson’s vehicle suggested illegal activity. The only investigation made by the officers prior to the stop involved observation of Anderson as he lawfully drove across the Idaho border into Montana. In State v. Valley (1992), 252 Mont. 489, 494, 830 P.2d 1255, 1258, we held a simple drive-by of a house was not probative of the probability of illegal activity within the house. Similarly, a simple observation of a motor vehicle lawfully crossing a state line was not probative of the probability that Anderson was transporting drugs in his vehicle.

Instead of conducting independent investigation to corroborate the tip, the officers relied on the tip to stop the pickup and gather information to justify the stop in the first place. Officer Bernall testified that the very purpose of stopping and searching Anderson’s pickup was to investigate whether Anderson was transporting drugs and to confirm that the tip was reliable so that a search warrant could be obtained. To condone a search of the defendant under these circumstances would render the right to be free from unreasonable searches and seizures meaningless.

A tip that has not been shown to be reliable or trustworthy for purposes of establishing probable cause to procure a search warrant is also unreliable for purposes of providing an officer with a particularized suspicion. An uncorroborated, unreliable tip is not objective data as contemplated by Cortez and Gopher.

We conclude that when the officers in this case stopped Anderson’s pickup to investigate and confirm the reliability of their informant’s tip, the officers did not have objective data and did not meet the particularized suspicion standard required by Gopher. Therefore, the stop was illegal.

The Fourth Amendment protection against unreasonable searches and seizures applies to the seizures of the person, including brief investigatory stops such as the stop of a vehicle. Cortez, 449 U.S. at 417, 101 S.Ct. at 694-95. When the Lincoln County Sheriff’s officers stopped Anderson in his pickup, they violated Anderson’s right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment of the United States Constitution and Article II, Section 11, of the Montana Constitution.

We hold that because the initial stop was unlawful, all of the evidence obtained by the officers in this case is inadmissible at trial. Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

We reverse and remand this case to the District Court and direct the lower court to suppress and exclude from evidence all items seized as a result of the unlawful stop and search of Anderson’s pickup.

JUSTICES HARRISON, GRAY, HUNT and McDONOUGH concur.

JUSTICE WEBER

dissents as follows:

I dissent from the conclusion of the maj ority which holds that when the officers in this case stopped Anderson’s vehicle, the officers did not have objective data and did not meet the particularized suspicion standard required by State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. Police are authorized to stop a vehicle when they have a particularized or reasonable suspicion that criminal activity may be afoot. This is the controlling rule as clearly stated in State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959:

The defendant alleges that Officer Williams was without authority to stop the defendant’s vehicle because he lacked probable cause to do so. This contention is erroneous. All that is required of an officer in making an investigatory stop is that he have a “particularized” or “reasonable” suspicion that criminal activity may be afoot. This is the applicable standard for an investigative stop of a vehicle; or in other words “some basis from which the court can determine that the detention was not arbitrary or harassing.” State v. Gopher (Mont. 1981), 631 P.2d 293, 295, 38 St.Rep. 1078, 1081, relying on United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621.

Sharp, 217 Mont. at 45, 702 P.2d at 962.

As pointed out in the majority opinion, on October 8, 1991, the Lincoln County Sheriff’s Department received a tip that defendant and another individual were leaving Libby, Montana, and driving to Washington to retrieve a large quantity of marijuana. That informant told Officer Bernall that defendant and his fellow passenger would be traveling in defendant’s blue Toyota pickup and would be returning to Montana in the late night of October 8, 1991. We emphasize that here the police had a particularized suspicion based upon the tip of a previously accurate confidential informant. We have held that information supplied by a previously accurate informant is sufficient to establish the probability of criminal activity. State v. Walston (1989), 236 Mont. 218, 223, 768 P.2d 1387, 1390.

In Sharp this Court concluded that Officer Williams did have sufficient basis for his particularized suspicion, stating:

Here, Officer Williams had a sufficient basis for his particularized suspicion of illegal activity. A citizen had just called the police to report a possible DUI offense and had given the police dispatcher the car’s license plate number and description and the direction of travel. These facts were corroborated when Officer Williams found the described vehicle going in the direction and on the highway reported by the telephone caller. When Williams came upon the automobile, it was stopped halfway off the roadway and began to pull away when he approached. Officer Williams noticed skid marks coming from the vehicle. He had right at that time, based on reasonable suspicion and logical inference, to stop the defendant’s vehicle to investigate a possible crime. (Emphasis added.)

Sharp, 217 Mont. at 45-46, 702 P.2d at 962. In Sharp an anonymous informant had called to report a possible DUI, giving a description of the car’s license plate number, automobile description and direction of travel. Sharp concluded those facts were corroborated when the officer found the described vehicle going in the direction and on the highway reported by the caller. In our case, we have directly comparable facts, but facts which are somewhat stronger as a basis for an investigatory stop than in Sharp. Here the initial tip was by the previously accurate confidential informant who advised that the defendant and another individual were going to be driving into Libby, Montana in the late night of October 8, and that they would be traveling in the defendant’s blue Toyota pickup. A significant portion of these facts was corroborated when the officers observed the defendant’s blue Toyota pickup, whose license number they verified, returning to Montana on the late night of October 8, as described by the informant. These facts are directly comparable to Sharp plus the additional corroboration of a tip by a previously accurate confidential informant.

Following the confirmation of the defendant’s vehicle going in the right direction, on the highway, and at the time of day described by the informant, I conclude that the officers had properly obtained sufficient corroboration so they had a particularized and reasonable suspicion that criminal activity may have been afoot, entitling them to make an investigatory stop. The majority refers to Sharp and suggests that this case is to be distinguished because there was nothing to suggest that the defendant’s vehicle here suggested illegal activity. I do not find any such indication of illegal activity in Sharp. The majority refers to State v. Valley (1992), 252 Mont. 489, 830 P.2d 1255, for the proposition that a simple “drive by” of the premises is not observation probative of illegal activity. That analysis is not applicable here. The informant in Valley was an anonymous citizen informant, the police did not have a way of knowing whether the information was correct without specific corroboration which was not obtainable in a drive by situation. The present case should be distinguished from Valley because we have the previously accurate confidential informant.

I suggest that police corroboration of the exact make, model and color of car, going in the specified direction at the specified time was enough to constitute a “particularized suspicion” when presented by a previously accurate confidential informant.

I would therefore affirm the District Court.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    IN THE MATTER OF J.R.T., A Youth Under the Age of 18.
    No. 92-408.
    Submitted on Briefs April 30, 1993.
    Decided June 7, 1993.
    50 St.Rep. 642.
    853 P.2d 710.
    258 Mont. 520.
    See C.J.S. Infants § 62.
    For Appellant: David Ness, Helena
    For Respondent: Hon. Marc Racicot, Attorney General; Carol Schmidt, Assistant Attorney General, Helena; Mike McGrath, County Attorney; Carolyn Clemens, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

J.R.T. appeals the order denying his petition for post-conviction relief entered in the Youth Court for the First Judicial District, Lewis and Clark County. We affirm.

We restate the sole issue as:

Did the Youth Court err in denying J.R.T.’s petition for post-conviction relief?

In August 1990, J.R.T. was involved in a physical altercation with another youth, R.E., in Helena, Montana. During the affray, R.E. suffered a broken jaw and several lacerations. As a result of the injuries to R.E., a petition was filed alleging J.R.T. was a delinquent youth for having committed the offense of aggravated assault. Following trial on November 21, 1990, the jury determined that J.R.T. committed aggravated assault. Thereafter, the Youth Court adjudicated J.R.T. a delinquent youth. J.R.T. did not appeal the jury verdict or the Youth Court’s adjudication.

In April 1992, J.R.T. filed a petition for post-conviction relief with the Youth Court alleging he should receive a new trial based upon newly-discovered evidence. Following a hearing, the Youth Court denied the petition for post-conviction relief. This appeal followed.

Did the Youth Court err in denying J.R.T.’s petition for post-conviction relief?

J.R.T. argues that new evidence — in particular, the testimony of witnesses who did not testify at trial — indicates that he was not the one who caused R.E.’s injuries but, rather, the broken jaw was caused by one or more persons in the crowd who kicked R.E. in the face during the fight. J.R.T. maintains that, if this newly-discovered evidence had been presented to the jury, they may have found that he did not commit aggravated assault in that he did not cause serious bodily injury.

In denying J.R.T.’s petition for post-conviction relief, the Youth Court concluded that a lack of diligence was the reason the evidence was not discovered prior to trial. Therefore, based upon State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, the Youth Court concluded J.R.T. failed to satisfy all of the six required factors which control whether a new trial should be granted based upon newly-discovered evidence.

The decision to grant or deny a new trial is within the sound discretion of the trial court. State v. Goettle (1992), 253 Mont. 111, 113, 831 P.2d 595, 596. On appeal, we will not disturb that decision unless an abuse of discretion is shown. Goettle, 831 P.2d at 596.

In Greeno, we held that a petition for a new trial based upon newly-discovered evidence must fall within a particular set of formulated criteria, which were more recently pronounced in State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. For a new trial to be granted based upon newly-discovered evidence, it must be shown that:

1. The evidence must have come to the knowledge of the applicant since the trial;
2. It was not through want of diligence that the evidence was not discovered earlier;
3. The evidence is so material that it would probably produce a different result upon another trial;
4. The evidence is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial;
5. The application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence is accounted for; and
6. The evidence must not be such as will only tend to impeach the character or credit of a witness.

Goodwin, 813 P.2d at 963.

As discussed, the Youth Court concluded that the evidence J.R.T. alleged was newly-discovered would have been discoverable prior to trial through due diligence. Furthermore, in its Memorandum of Decision, the Youth Court noted that the evidence J.R.T. was relying on at the petition hearing was in conflict with the position he took at trial. Specifically, at trial J.R.T. relied on the defense of justifiable use of force and that he did not have the particular state of mind necessary to prove the charge alleged. At the petition hearing, J.R.T. argued that the newly-discovered evidence showed that R.E.’s broken jaw was caused by one of the spectators who kicked him in the face.

Prior to trial, J.R.T. listed twenty-six potential witnesses. Two of these potential witnesses, R.M. and M.M., did not testify at trial. However, both testified at the hearing on J.R.T.’s petition for post-conviction relief. A third witness, B.S., who did testify at trial, was subpoenaed to testify at the hearing on the petition for post-conviction relief. B.S. did not show up at the hearing. Finally, M.N. was not listed as a witness by either J.R.T. or the State prior to trial, and he did not testify at trial. He did, however, testify at the hearing.

At the hearing on J.R.T.’s petition for post-conviction relief, R.M. testified he saw five or six people kick R.E. while he was on the ground. Although R.M. was preliminarily listed as a defense witness, and a praecipe was issued asking the Clerk of Court to issue a subpoena, he was not included in J.R.T.’s revised witness list and was not served with a subpoena. The preliminary witness fist indicated that R.M.’s “address [was] unknown, however, [he] may work at the Pizza Hut on Euclid.” J.R.T. argues that because R.M.’s address was unknown, and, at the time, R.M. was no longer employed at Pizza Hut, he was not negligent in failing to contact R.M.

“A basic criteria for granting, new trials on newly discovered evidence is that the newly discovered evidence could not have been discovered and produced at trial with the exercise of reasonable or due diligence.” Carbon County v. Schwend (1984), 212 Mont. 474, 478, 688 P.2d 1251, 1253 (emphasis added). We agree with the Youth Court that no evidence was presented to indicate that R.M. could not have been located to be interviewed or to testify at trial. Due diligence requires something more than merely relying on an unknown address and a former place of employment. Reasonable, positive steps must be taken to discover the evidence. The record is devoid of any indication that J.R.T. diligently undertook to find this witness.

Likewise, although M.N. was not listed as a potential witness by either J.R.T. or the State, the record indicates that M.N. was at the fight with another youth who was called by J.R.T. to testify at trial. In addition, J.R.T. had known M.N. for approximately five years prior to trial. Again, J.R.T. presented no evidence which would show that he used due diligence to discover this witness. There is nothing to indicate that M.N. could not have been located.

B.S. testified at trial that he did not see J.R.T. or anyone else kick R.E. Prior to the hearing on the petition for post-conviction relief, B.S. signed a statement for J.R.T.’s lawyer in which he stated that R.E. was kicked in the face by three or four spectators. B.S. believed R.E.’s broken jaw was caused by these kicks or by the ground. However, this statement was not an affidavit. Thus, the statement did not meet the requirement that the witness whose evidence is alleged to have been newly-discovered support that evidence with an affidavit. Goodwin, 813 P.2d at 963.

Furthermore, at trial, the oral surgeon who treated R.E. testified that the broken jaw would be consistent with either being kicked or punched very hard several times. J.R.T. testified at trial that he hit R.E. in the face five or six times and “felt that I hit him pretty good.” As a result, the jury could have concluded that the punches to the face caused the broken jaw. Given the inference J.R.T. seeks to draw from B.S.’s statement, it is not reasonable to assume a different result probably would be reached if another trial were held.

Finally, J.R.T. argues that the false statement provided to the police by M.M., and a wrong address supplied by the prosecution, served to mislead his defense counsel, depriving him of an effective defense. Following the fight, M.M. provided a statement to police in which he stated that J.R.T. provoked the confrontation and beat up R.E. At the post-conviction relief hearing, M.M. recanted this story and testified that he originally wanted to get J.R.T. in trouble because “I didn’t like him or any of his so-called jock friends.”

The Youth Court found that M.M. was not a credible witness. The credibility of a witness is within the exclusive province of the trier of fact. State v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. In addition, although M.M. was listed by the defense as a potential witness, once again, the record does not show that J.R.T. undertook to ascertain his whereabouts prior to trial through due diligence.

J.R.T. has failed to satisfy the requirements enunciated in Goodwin. Accordingly, we hold the Youth Court did not abuse its discretion in denying J.R.T.’s petition for post-conviction relief. The decision of the Youth Court is affirmed.

JUSTICES HARRISON, HUNT and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority opinion, although I do not agree with all that is said therein. I agree that the decision to grant or deny a new trial is within the sound discretion of the trial court and find no abuse of discretion in this case. Therefore, I would also affirm the District Court.


author: JUSTICE HUNT JUSTICE HARRISON

text:
    IN RE THE MATTER OF CUSTODY OF C.J.K., a minor.
    No. 92-294.
    Submitted on Briefs March 4, 1993.
    Decided June 8, 1993.
    50 St.Rep. 645.
    855 P.2d 90.
    258 Mont. 525.
    See C.J.S. Bastards § 17.

      For Appellant: Robert G. Olson, Frisbee, Moore & Olson, Cut Bank.
    For Respondent: Susan L. Weber, Miller & Cook, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Ninth Judicial District Court, Toole County, Montana. The appellant mother appeals the District Court’s award of joint custody with the respondent father in which respondent was designated primary residential custodian of the minor child, C.J.K. We reverse and remand.

The following issue is dispositive of this case:

Was the issue of primary physical custody of C.J.K. properly before the District Court?

On July 24, 1990, C.J.K. was born to appellant and respondent after a one-year relationship in which the parties resided together but were never married. Prior to the birth of C.J.K., there were four other children born to appellant from a previous marriage, and one child from a previous relationship. C.J.K. is respondent’s only son.

Several months after the birth of C.J.K., the parties separated and have since lived apart. Because of this separation, it was necessary to determine custody and support issues for C.J.K. Appellant filed a petition for custody and support on March 12,1991, which requested that there be “joint care, custody and control”; that she be the custodial parent; and that respondent be granted reasonable rights of visitation. Respondent filed a response and counterpetition on June 27,1991, which requested split custody until C.J.K. reached the age of five, at which time respondent would be granted primary physical custody. On February 21,1992, the parties went to trial on the issues of custody and support of C.J.K. During trial, respondent moved for an order that he be granted immediate primary custody of C.J.K. Counsel for appellant immediately made a motion to stay or continue the proceedings on the basis of surprise.

Was the issue of primary physical custody of C.J.K. properly before the court?

In his response and counterpetition, respondent specifically requested that appellant be designated primary physical custodian for eight months of the year, and that he be designated primary physical custodian for only four months of the year until C.J.K. reaches age five. No mention was made of respondent being designated primary physical custodian before C.J.K. reached the age of five.

After the conclusion of appellant’s case-in-chief, respondent unexpectedly requested immediate primary physical custody. This was the first time appellant was put on notice that respondent sought immediate custody and that she might lose her right to custody.

The purpose of a pleading is to provide notice before trial to the opposing party of the specific relief being sought so that both parties have an opportunity to present evidence on the issues in dispute. Gallatin Trust Bank v. Darrah (1968), 152 Mont. 256, 261, 448 P.2d 734, 737. The requirement that all issues to be tried must be raised in the pleadings is extended to child custody disputes byin re Custody of C.S.F. (1988), 232 Mont. 204, 209, 755 P.2d 578, 581.

An exception to the requirement that all issues to be tried must be raised in the pleadings, is set out in Old Fashion Baptist Church v. Department of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628:

A District Court does not have jurisdiction to grant relief outside of the issues presented by the pleadings unless the parties stipulate that other questions be considered or the pleadings are amended to conform to the proof.

The parties may “stipulate” or consent to consideration of issues outside of the pleadings expressly or impliedly. Butte Teachers’ Union v. Board of Trustees (1982), 201 Mont. 482, 486, 655 P.2d 146, 148. In the case at bar, respondent argues that since appellant raised the issue of primary physical custody in her petition and he specifically contested the issue, in essence, appellant expressly consented to trial on this issue. We disagree.

Respondent, in his responsive pleading, set out the parameters of the dispute which did not include a request that he be granted primary physical custody at the present time. Appellant never expressly consented to trial on any issue except that which was discussed in the responsive pleading.

Concerning the issue of implied consent, we have stated that “pleadings will not be deemed amended to conform to the evidence because of “implied consent” where the circumstances were such that the other party was not put on notice that a new issue was being raised.” Darrah, 448 P.2d at 737. In the case at bar, appellant did not receive adequate notice before trial, and therefore, could not impliedly consent to consideration of the new issue of whether or not respondent be granted immediate primary physical custody. Appellant’s adamant objection to the consideration of this issue, and her claim that she was “caught off-guard” by this “eleventh-hour change in attack” is in no way indicative of implied consent.

Because of lack of notice, possible prejudice to appellant must be considered. Respondent’s unexpected request denied appellant adequate opportunity to prepare her case thereby denying her due process of law.

We conclude that the determination of primary physical custody was not properly before the District Court.

Reversed and remanded for further proceedings in accordance with this opinion.

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

JUSTICE HARRISON

dissenting.

I dissent. I would hold that the determination of primary physical custody of the minor child was properly before the District Court, and I would affirm the District Court’s award of joint custody and the court’s designation of the respondent father as the primary residential custodian of the minor child.

The record is clear. The minor, C.J.K., was born on July 24, 1990, to the mother and father after a one-year relationship in which the mother and father resided together but never married. C.J.K. is the youngest of six children born to the mother; four other children were born to the mother from a previous marriage, and she had one other child from a previous relationship. C.J.K. is the father’s only child.

Nearly eight months after the birth of C.J.K. and after the parties’ relationship failed, the mother filed with the District Court a “Petition for Custody and Support” wherein she asked the court to award joint custody of C.J.K. to the parties with herself as the primary custodial parent, and to require the father to pay child support according to the Uniform Guidelines. In his response and counter-petition, the father prayed that joint custody be awarded the parties with the mother as primary custodian until C.J.K. reached the age of five, when the father would be granted primary physical custody. The father’s counter-petition also provided for liberal visitation for the noncustodial parent. It also provided that the father would pay child support during each month that C.J.K. was in the mother’s care; that the income tax exemption could be claimed by the primary physical custodian; that the father would provide C.J.K’s medical insurance; that any uncovered medical expenses would be shared equally by the parties; and that each party would be responsible for his or her individual attorney’s fees and costs incurred in this matter.

At the hearing in February, 1992, the father requested for the first time that he, not the mother, be designated as the primary custodial parent. The mother filed a legal memorandum setting forth her objections to this unanticipated oral request. The District Court properly took the position that in Montana it is clear that the court’s duty is to look to the “best interest of the child” regardless of the custodial arrangements sought by the parties.

Custody of C.J.K. and the parties’ concerns for his best interest were thoroughly discussed at the February, 1992, hearing. Again, the record is clear. It indicates, at length, a severe problem in the mother’s home as to the care of her six children, including her failure to supervise the children; and that C.J.K. was left in the custody of her oldest daughter, who was fifteen at the time of the District Court hearing. Often during the week the mother did not return home until 2:00 or 3:00 a.m., leaving the fifteen-year-old to care for the younger children. The court’s findings of fact indicate that the Family Services Department had investigated five complaints relating to the filthy and unhealthy condition of the mother’s home. The record also indicates that the mother refused to cooperate with the father in several areas concerning C.J.K.

I find that the first issue, whether primary physical custody of C.J.K. was properly before the District Court, is the key to the resolution of this matter. The mother alleges that the issue of primary physical custody was not before the court, as the father had requested split custody in his response and counter-petition. I disagree. This issue was placed before the court by the mother herself in her “Petition for Custody and Support,” in which she prayed that C.J.K. be placed in the joint care, custody and control of the mother and father, with the mother as “custodial parent.” This request in itself raises the question of primary physical custody.

In response to the mother’s petition, the father denied that making the mother the custodial parent was in C.J.K.’s best interest and requested a split custody arrangement until C.J.K. reached the age of five, at which time the father requested that he be granted primary physical custody. Primary physical custody of C.J.K. was the central issue of the entire testimony before the District Court. Both parties presented evidence on the issue and the District Court properly applied the best interest test in designating the father the primary residential custodian of C.J.K.

This Court has held that under § 40-4-212, MCA, the best interest of the child factor is controlling regardless of any requests by either party, and that the court’s failure to consider its elements could result in reversible error, even if the parties themselves have entered into an agreement regarding the issue of custody. In re Marriage of Mager (1990), 241 Mont. 78, 785 P.2d 198; In re Marriage of Converse (1992), 252 Mont. 67, 826 P.2d 937.

Here, the record indicates that the District Court considered all of the statutory criteria for determining the child’s best interest, and that its findings and conclusions are supported by substantial credible evidence.

I would hold that the determination of primary physical custody was properly before the District Court and that the court did not err in making its determination under § 40-4-212, MCA. I would affirm.


author: JUSTICE HARRISON

text:
    IN RE THE MARRIAGE OF GORDON R. SULLIVAN, Petitioner and Appellant, and ANNETTE M. SULLIVAN, Respondent and Respondent.
    No. 91-389.
    Submitted on Briefs December 22, 1992.
    Decided June 10, 1993.
    50 St.Rep. 648.
    853 P.2d 1194.
    258 Mont. 531.

      See C.J.S. Divorce § 674.

      For Petitioner and Appellant: Antonia P. Marra; Bell & Marra, Great Falls.
    For Respondent: Robert F, James and William O. Bronson; James, Gray & McCafferty, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Eighth Judicial District, Cascade County, the Honorable Thomas M. McKittrick presiding. Appellant Gordon Sullivan (Gordon) appeals from an order holding him in contempt, determining child support, allocating tax exemptions and medical costs, and refusing to modify child support retroactively. He also appeals from an order awarding attorney’s fees to respondent Annette Sullivan (Annette). We affirm in part, reverse in part, and remand for further proceedings.

Gordon raises the following issues on appeal:

1. Did the District Court err in determining the amount of child support?

2. Did the District Court err in allocating the tax exemptions and medical costs?

3. Did the District Court err in refusing to modify child support retroactive to the time Gordon filed his first motion for modification?

4. Did the District Court err in holding Gordon in contempt and awarding Annette her attorney’s fees and costs?

Gordon and Annette were married on July 18,1970. They dissolved their marriage under the terms of a Decree of Dissolution entered by the District Court on September 19, 1985. Three children — Riley, Amanda, and Ryan, all minors at the time of the dissolution — were born of the marriage. The decree incorporated the provisions of a Property Settlement Agreement dated September 17,1985 (the 1985 agreement). The agreement provided that: 1) the parties would have joint custody of the children with Annette given exclusive discretion to determine the primary residence; 2) Gordon would pay Annette child support of $150 per child per month through the clerk of the district court; 3) child support would increase to $175 a month per child in one year, and $200 a month per child two years from the date of the agreement; 4) Gordon could claim Amanda and Ryan for income tax exemptions if his child support and maintenance obligations were current; 5) Gordon would provide medical and dental insurance and be responsible for the deductibles for the children during their minority, while both parties would be responsible for expenses not covered by insurance; and 6) the successful party would be awarded reasonable attorney’s fees in any action commenced to enforce, modify, or interpret any provision of the agreement.

At the time of the dissolution Gordon worked as the Director of Marketing and Special Projects at Columbus Hospital, earning approximately $36,000 a year from all sources. Annette worked as a secretary earning approximately $10,000 a year from all sources.

In 1985 or 1986, Gordon suffered a work-related back injury which he exacerbated a few years later. He received $568 bi-weekly workers’ compensation benefits through December 1989, at which time he received a $14,900 lump sum impairment award. The hospital ehminated Gordon’s position on April 4,1988, before he could return to work.

In August 1988, Annette moved for an order requiring Gordon to show cause why he should not be held in contempt for failing to pay over $3,000 in past due child support payments, letting the health insurance coverage lapse, failing to pay maintenance, and failing to pay necessary dental bills for his children. Gordon responded to that motion with a counter-motion, based on his reduced income, asking the court to reduce the amount of child support and require Annette to obtain insurance.

On December 19, 1989, the parties finally entered into a stipulation (the 1989 stipulation) regarding enforcement of the 1985 agreement. The District Court entered an order 1) requiring the parties to abide by the stipulation; 2) modifying the 1985 agreement where inconsistent with the stipulation; 3) entering judgment against Gordon pursuant to the stipulation; and 4) modifying child support to $200 a month for each of two children, eliminating child support for Riley who was living with Gordon at that time.

In the 1989 stipulation, the parties agreed:

1. Gordon owed Annette $3,600 in past due maintenance but was to have a credit of $2,992.98 as an offset against that amount;

2. Gordon owed Annette $4,920 in past due child support that was to be offset by $1,500 for the amount Annette owed Gordon because Riley lived with Gordon for ten months in 1989;

3. Gordon owed Annette $1,300 in attorney’s fees she incurred in bringing her motion to enforce the dissolution decree.

Gordon further stipulated that any child support or maintenance arrearages, or any obligations agreed to under the stipulation would become an attachment on any lump sum payment he received for his workers’ compensation claim. Gordon received a $50,000 lump sum settlement of his claim in November 1990.

On November 13, 1990, Gordon renewed his original motion to modify child support, which he had made in 1988, and asked that the modification be retroactive to his first motion. He also asked that he be allowed to claim as tax exemptions the two children who were then living with him.

Annette responded by asking the court to hold Gordon in contempt for failing to comply with the court order enforcing the 1989 stipulation. She also asked the court to determine the new amount of child support effective October 23,1990 — the date the parties entered into a stipulation modifying residential custody and allowing for re-examination and reduction of child support.

After a hearing on the renewed motion to modify child support, the court entered its findings of fact, conclusions of law and order on February 28, 1991:

1. Holding Gordon in contempt for failing to pay from his lump sum workers’ compensation settlement, all sums due and owing;

2. Holding Gordon responsible for Annette’s attorney’s fees;

3. Setting Gordon’s child support obligation at $72 per month for the one child still living with Annette;

4. Ordering Gordon to pay Annette $9,324.13 and to immediately release to Annette as partial payment the $6,520 held in escrow by the clerk of the district court;

5. Requiring Annette’s attorney to submit an affidavit of attorney’s fees;

6. Allowing Annette tax exemptions for Amanda and Ryan and allowing Gordon an exemption for Riley for the year 1990.

Gordon moved to alter or amend this judgment. The court denied this motion except for a correction to give Gordon credit for $1,000 Annette had previously received.

The court held a hearing on attorney’s fees on March 25,1991, after which it ordered Gordon to pay Annette $3,357.25 as her reasonable attorney’s fees.

Gordon appeals from the order dated February 28, 1991, from the order awarding attorney’s fees, and from an order denying his motion to alter or amend the judgment.

I

Did the District err in determining the amount of child support?

At the hearing on Gordon’s renewed motion, Annette presented testimony from John Koch, a staff attorney for the Montana Department of Social and Rehabilitation Services, Child Support Enforcement Division. Mr. Koch explained how he determined on Worksheet #2 that Gordon owed Annette $72 per month in child support. He based his calculation on a gross income of $32,450 for Gordon. This was a two-year average of the $14,900 Gordon received in 1989 and the $50,000 he received in 1990. Gordon assigns error to the court’s use of these figures to determine gross income because they are, according to Gordon, a replacement of a stream of income. He argues the $50,000 is meant to be a replacement of income at arate of $149.50 per week over nine and one-half years under § 39-71-701, MCA.

Workers’ compensation benefits are one of the factors to be considered in determining child support under § 40-4-204(2), MCA. See In re Marriage of Durbin (1991), 251 Mont. 51, 823 P.2d 243. They are also specifically included as an item of gross income under the regulations promulgated by the Department of Social and Rehabilitation Services. 46.30.1508(1)(a), ARM.

Mr. Koch testified that there was no specific rule on how a lump sum award of workers’ compensation benefits should be treated. Mr. Koch agreed that it would be reasonable to spread the benefits over the nine and one-half years they were intended to replace, but said that “[w]e essentially want to leave that up to a trier of fact to determine.” In its findings of fact the District Court found that: 1) Gordon had received $598 bi-weekly payments for most of 1989; 2) Gordon received a $14,900 lump sum (impairment award) in 1989; 3) Gordon received a $50,000 lump sum settlement of his workers’ compensation claim in 1990; 4) after receiving the settlement in 1990 he bought ski equipment for each of his children, himself, and his current wife, and he bought ski passes for each of these people except for Ryan, who was living with Annette; 5) Gordon purchased two vehicles in late 1990; 6) Gordon spent over $26,000 of his settlement between November 1990 and January 21,1991; 7) Gordon presented no authority supporting his claim that the Child Support Guidelines provide for spreading the income over nine and one-half years.

Based on the foregoing findings, the District Court concluded that the worksheet prepared by Mr. Koch was a “reasonable method for determining the child support due and owing under this fact situation.” Specifically the court relied on the fact that Gordon had not treated the lump sum as if it would last for nine and one-half years and that it would be spent by June 1991.

A presumption exists in favor of the district court’s determination of child support, and that determination will only be overturned where the court abused its discretion. In re Marriage ofSacry (1992), 253 Mont. 378, 382, 833 P.2d 1035, 1038.

Here, the District Court properly found that Gordon would have spent the entire $50,000 lump settlement by June of 1991. However, it did not find, nor was there any evidence to suggest, that Gordon would receive further workers’ compensation benefits. Therefore, there was no basis for presuming that Gordon’s income would be $32,450 after 1990. Athough we sympathize with the District Court in its dilemma, we conclude that it abused its discretion in attributing that amount of income to Gordon after 1990.

In the 1989 stipulation, the parties agreed on the amount of support Gordon owed as of December of that year. We will not disturb the amounts agreed to in that stipulation. (See our discussion of Issue I.) For 1990, we believe that the child support in this case should be determined based on the income Gordon actually received that year. Therefore, the $50,000 lump sum settlement should be used to determine his obligation for 1990. A second calculation will then be necessary to determine the amount of child support due beginning in 1991.

Under the unique facts of this case, we believe this method accurately reflects the manner in which Gordon treated his income and at the same time reflects the fact that Gordon -will apparently not receive future workers’ compensation benefits. We therefore remand for a redetermination of child support.

II

Did the District Court err in determining the allocation of tax exemptions and medical costs?

We will first address the allocation of tax exemptions. The dissolution decree and the 1985 agreement provided that Annette would be entitled to claim Riley for the taxable year 1985 and any other year thereafter and that Gordon would be entitled to claim Amanda and Ryan for 1985 and thereafter provided that he was current on his child support obligation. At that time Annette was the primary residential custodian of all three children. In December 1989, the parties agreed and the court entered an order recognizing Gordon as the primary residential custodian of Riley. On October 23, 1990, the parties stipulated that Gordon would be the residential custodian of Amanda as she had been living with him since August of that year.

The order of February 28, 1991, allowed Annette to claim tax exemptions for Ryan and Amanda for 1990 and allowed Gordon to claim Riley as an exemption. Amanda had lived with Annette until August of 1990. This order does not comport with the tax exemption arrangement in the 1985 agreement, rather it comports with the tax code. See I.R.C. §§ 151, 152. The court then ordered that future tax exemptions would be determined by the tax code and by the 1985 agreement. Gordon takes issue with this order because he claims the tax regulations and the 1985 agreement are in conflict with each other and with the current custody arrangement. It appears that the tax exemption provision of the agreement no longer applies as the parties have stipulated to a change in custody and they do not challenge the 1990 arrangement, which is in line with the tax code. This appears to leave the parties to follow only the tax regulations in the future, and does not warrant a remand on this issue.

Gordon also claims error because the court awarded a combined principal and interest payment of $373.16 to Annette based on a principal of $336.47 which he claims he does not owe. Gordon’s claim arises only because he has not looked closely at the pertinent exhibit. That exhibit clearly identifies the payment as one for “medical + premium.” This combines two amounts stipulated in the 1989 stipulation. Gordon claims there is no figure of $336.47 contained in that agreement. True. But the amount is the sum of an $80 insurance premium and $256.47 in medical bills. We hold there was no error.

III

Did the District Court err in failing to make the modification of child support retroactive to the time Gordon filed his first motion for modification?

Gordon claims the District Court should have made the modification retroactive to his October 20,1988, counter-motion to modify child support. The 1989 stipulation governs here. In the stipulation, Gordon agreed to the amount he owed in past due child support. He also agreed to the entry of an order based on that stipulation. Annette gave up any other claims which were past due and owing, other than those included in the stipulation. Gordon now argues that the court should reopen that order and modify what the parties agreed. However, the District Court was bound by the terms of the stipulation as they were not contrary to law, court rule, or public policy. School Dist. No. 4 v. Colburg (1976), 169 Mont. 368, 372, 547 P.2d 84, 86-87. See also Morris v. McCarthy (1972), 159 Mont. 236, 497 P.2d 102 (district court properly dismissed complaint where plaintiff had stipulated in a prior action that he would be bound in a later action by the property damage award in the first action).

The District Court did not err in refusing to make the modification retroactive, especially where Annette gave up some claims in order to reach the stipulation.

rv

Did the District Court err in holding Gordon in contempt and awarding attorney’s fees and costs?

In the 1989 stipulation, Gordon agreed that the arrearages and other obligations would become an attachment on any lump sum payment he received from his workers’ compensation claim. When Gordon received that settlement in November 1990, rather than directly giving Annette the money he agreed he owed her, he placed $7,520 — the amount of principal he determined he owed Annette — in escrow with the clerk of the district court pending the outcome of the hearing on his renewed motion. He dissipated most of the remaining money. The District Court held Gordon in contempt for failing to pay Annette the agreed sum in a timely fashion. Generally, contempt orders are final, conclusive, and not appealable except by writ of certiorari. Section 3-1-523, MCA. However, an exception is made for dissolution proceedings, although we must limit our standard of review to whether the district court acted within-its jurisdiction and whether the evidence supports the findings. In re Marriage of Sessions (1988), 231 Mont. 437, 441, 753 P.2d 1306, 1308. Here, the stipulation provided that Annette was to have an attachment against Gordon’s workers’ compensation settlement in an agreed amount. When Gordon received that settlement, he failed to release the money he agreed he owed to Annette in a timely fashion. Therefore, the evidence supports the court’s finding.

Lastly, Gordon argues that the District Court erred by awarding Annette her attorney’s fees and costs. In its findings in its Order Awarding Attorney’s Fees, the District Court found that: 1) Annette was seeking attorney’s fees to pay for expenses incurred to enforce a previous court order for child support; 2) she had negotiated a lien on Gordon’s workers’ compensation settlement that was not honored by Gordon’s attorneys; 3) she had to take extraordinary measures to discover his income; 4) he did not timely release funds that he knew were owing for past due child support; 5) Gordon had over $80,000 income for a two-year period that was not subject to state or federal deductions; 6) Gordon’s actions unreasonably increased Annette’s attorney’s fees; and 7) the amount submitted by Annette was a reasonable amount for attorney’s fees.

The property settlement agreement provided for an award of attorney’s fees to the prevailing party. Section 40-4-110, MCA, also provides authority for awarding attorney’s fees. Under the statute, an award of attorney’s fees is discretionary and will not be disturbed absent an abuse of that discretion. In re Marriage of Swanson (1986), 220 Mont. 490,496,716 P.2d 219,223. We look to whether substantial credible evidence supports the findings. In re Marriage of Hall (1990), 244 Mont. 428,436, 798 P.2d 117,122. Substantial evidence supports the District Court’s findings. It did not abuse its discretion by awarding Annette her reasonable attorney’s fees.

Affirmed in part, reversed in part, and remanded for further proceedings in conformity with our holding.

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