text:
    KAREN CALCATERRA, individually and as the Personal Representative of the Estate of Carl J. Calcaterra, Deceased, Plaintiff and Appellant, v. MONTANA RESOURCES, Defendant and Respondent.
    No. 97-234.
    Submitted on Briefs April 9, 1998.
    Decided July 29, 1998.
    1998 MT 187.
    55 St.Rep. 762.
    962 P.2d 590.
    289 Mont. 424.

      See C.J.S. Workmen’s Compensation § 926.
    For Appellant: Bernard J. “Ben” Everett; Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: Ronald B. MacDonald, Paul N. Tranel; Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Karen Calcaterra (Karen) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order granting the motion for summary judgment filed by Montana Resources. We affirm.

¶2 The issue on appeal is whether the District Court erred in granting summary judgment to Montana Resources on the basis that Karen’s claims are barred by the exclusivity provision of Montana’s Workers’ Compensation Act.

BACKGROUND

¶3 Carl J. Calcaterra (Carl) was employed by Montana Resources as a maintenance technician at its Continental Mine. When Carl reported to work on the morning of June 9,1995, he and his fellow employee Wayne Wenger (Wenger) received a work assignment from temporary foreman Don Gates (Gates). The assignment was to repair a hinge pin keeper on a Wabco 170-D haul truck which, at the time, was located at the mine’s crusher apron. Carl and Wenger proceeded to the crusher apron where they temporarily replaced the damaged hinge pin so the haul truck could dump its load. Because it recently had been raining and was muddy outside, they moved the haul truck into the shop to complete the repairs. They did not wash the truck before beginning the repairs and, as a result, the truck’s undercarriage and tires were covered with slippery mud.

¶4 The tires on a Wabco 170-D haul truck measure 10 feet in diameter and the hinge pin keeper is situated 12 inches above the rear tires. Thus, it was necessary for Carl and Wenger to be elevated in order to repair the hinge pin keeper. Rather than using the scaffolding that was available to shop workers for such tasks, Carl and Wenger elected to use ladders to reach the hinge pin keeper. Carl leaned a 10-foot ladder against the haul truck’s right suspension cylinder and an 8-foot ladder was positioned to the left of the 10-foot ladder. Neither ladder was secured in any manner. Carl climbed the 10-foot ladder to begin cutting away the damaged hinge pin keeper. Employee Lonnie Hoppe (Hoppe) climbed the 8-foot ladder to assist Carl while Wenger used a forklift to raise the haul truck’s bed so Carl could access the hinge pin keeper. Neither Carl nor Hoppe used safety belts and lanyards to secure themselves while on the ladders.

¶5 After Hoppe assisted Carl with removing the damaged hinge pin keeper and installing a new one, he returned to his other work. The new hinge pin keeper did not fit properly, however, and Carl descended from the ladder to locate Gates for assistance. Gates climbed the 10-foot ladder to inspect the repairs Carl was making, suggested how Carl should complete the repairs, descended from the ladder and left the area. Carl again climbed the 10-foot ladder to continue his work.

¶6 By this time, Wenger had moved around the other side of the haul truck and did not see the subsequent events; nor were there any other witnesses to the accident. Wenger heard the ladder rattle and then heard a “thump.” When Wenger came back around the side of the haul truck, he saw Carl lying unconscious on the floor. Carl apparently had fallen from the ladder or had slipped when moving from the ladder to the muddy tire of the haul truck in an attempt to get closer to the hinge pin keeper. Wenger summoned help and Hoppe administered first aid until Carl was taken by ambulance to St. James Community Hospital. Carl never regained consciousness and he died on June 13,1995.

¶7 Karen, Carl’s wife and the personal representative of his estate, brought wrongful death and survivorship actions against Montana Resources requesting damages as a result of Carl’s injuries and death. She alleged in her complaint that Montana Resources had violated federal safety regulations by directing Carl to perform work on an unsecured ladder without a safety belt and lanyard and that Montana Resources had intentionally and maliciously caused Carl’s injuries and death. Montana Resources responded with a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), M.R.Civ.P., or, in the alternative, for summary judgment pursuant to Rule 56, M.R.Civ.P. It asserted that Karen’s claims were barred by § 39-71-411, MCA, because Montana’s Workers’ Compensation Act (the Act) was the exclusive remedy for Carl’s injuries and death, and that § 39-71-413, MCA, which provides an exception to the Act’s exclusivity provision, was inapplicable. The District Court denied Montana Resources’ motion to dismiss, but did not rule on the alternative motion for summary judgment.

¶8 After answering the complaint, Montana Resources renewed its motion for summary judgment, again asserting that Karen’s claims were barred by the Act’s exclusivity provision. Karen opposed the motion and oral arguments were heard. Thereafter, the District Court granted summary judgment to Montana Resources and entered judgment accordingly. Karen appeals.

STANDARD OF REVIEW

¶9 We review a district court’s grant or denial of a motion for summary judgment de novo using the same Rule 56, M.R.Civ.P, criteria applied by the district court. Montana Metal Buildings v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694, 696 (citing Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997). Rule 56(c), M.R.Civ.P, provides that

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The moving party has the initial burden of establishing the absence of any genuine issue of material fact which would allow the opposing party to recover and entitlement to judgment as a matter of law. Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696. If the moving party meets this burden, the party opposing the motion must come forward with material and substantial evidence which raises a genuine issue of material fact. Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696. Summary judgment is an extreme remedy which should never be substituted for a trial on the merits if there are genuine issues of material fact and all reasonable inferences which may be drawn from the evidence presented should be drawn in favor of the nonmoving party. Montana Metal Buildings, 283 Mont. at 474, 942 P.2d at 696.

DISCUSSION

¶10 Did the District Court err in granting summary judgment to Montana Resources on the basis that Karen’s claims are barred by the exclusivity provision of the Act?

¶11 The concept that the Act is the exclusive remedy for an employee who is injured or killed in the scope of his or her employment has its genesis in Article II, Section 16 of the Montana Constitution, which provides, in part, as follows:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state.

This constitutional provision is implemented through § 39-71-411, MCA, which provides generally that the Act is the exclusive remedy for injury to or death of an employee covered by the Act.

For all employments covered under the ... Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the... Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the... Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The ... Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death, as well as the employer and the servants and employees of such employer and those conducting his business during liquidation, bankruptcy, or insolvency.

Section 39-71-411, MCA. An exception to the general exclusivity of the Act is available, however, when an employee is injured as the result of an intentional and malicious act or omission.

If an employee receives an injury while performing the duties of his employment and the injury or injuries so received by the employee are caused by the intentional and malicious act or omission of a servant or employee of his employer, then the employee or in case of his death his heirs or personal representatives shall, in addition to the right to receive compensation under the... Act, have a right to prosecute any cause of action he may have for damages against the servants or employees of his employer causing the injury.

Section 39-71-413, MCA. While the language in § 39-71-413, MCA, provides for a cause of action only against a fellow employee or other servant of the employer who intentionally and maliciously injures an employee, we have held that such an action may be brought against the employer as well. See Sitzman v. Shumaker (1986), 221 Mont. 304, 307-08, 718 P.2d 657, 659.

¶12 The District Court determined that, while the evidence presented may have established gross negligence or the existence of a dangerous workplace, it did not raise a genuine issue of material fact that Montana Resources acted with intent and malice to harm Carl which would bring Karen’s claims within the § 39-71-413, MCA, exception to the Act’s exclusivity provision. It concluded, as a result, that Montana Resources was entitled to summary judgment as a matter of law. Relying primarily on Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 900 P.2d 314, Karen contends that the District Court erred because the evidence that Montana Resources’ foreman Gates directed Carl to perform work under unsafe concjitions, in violation of several federal safety regulations, and that Gates himself previously had fallen and been injured under nearly identical circumstances raised genuine issues of material fact regarding Montana Resources’ malice and intent to harm Carl which, if proved at trial, would bring her claims within the purview of § 39-71-413, MCA.

¶ 13 Before addressing Karen’s contention that genuine issues of material fact exist which bring this action within the exception to the Act’s exclusive remedy provision, we set forth the principles which control when allegations — or, as here, evidence — are and are not sufficient to avoid the exclusivity provision and bring an action within § 39-71-413, MCA. As discussed above, an exception to the Act’s exclusivity provision is available when an employee is injured by an “intentional and malicious act or omission ....” Section 39-71-413, MCA. We recently observed that some of our prior decisions interpreting § 39-71-413, MCA, are inconsistent and clarified several principles relating thereto. See Schmidt v. State (1997), [286 Mont. 98], 951 P.2d 23, 27-28. Specifically, we “reaffirm[ed] our commitment to at least that part of our decision in Great Western Sugar Co. [v. District Court (1980), 188 Mont. 1, 610 P.2d 717] which held that allegations of negligence, no matter how wanton, are insufficient to avoid the exclusive remedy of the Workers’ Compensation Act.” Schmidt, [286 Mont. 98], 951 P.2d at 28. We indicated that a plaintiff attempting to avoid the Act’s exclusivity must establish “an intentional act with malice” which caused the injuries at issue. Schmidt, [286 Mont. 98], 951 P.2d at 28. Similarly, an employer’s violation of safety statutes or regulations is insufficient to avoid exclusivity because such violations “at most, constitute negligence and [do] not serve as the basis for an intentional tort.” Schmidt, [286 Mont. 98], 951 P.2d at 29. Even knowledge of a high degree of risk to an employee working under dangerous conditions does not establish, by itself, the intentional act needed to avoid exclusivity. See Lockwood, 272 Mont. at 209-10, 900 P.2d at 318-19.

¶14 Notwithstanding these principles which govern allegations or evidence insufficient to avoid the exclusivity provision, however, it is clear that § 39-71-413, MCA, provides an exception to that bar for injuries during employment which “are caused by the intentional... act or omission” of a fellow employee. In that regard, we have held that allegations or evidence that an employer knew its acts created a high degree of harm to an employee are sufficient to meet the intentional act requirement of § 39-71-413, MCA. See Lockwood, 272 Mont. at 210, 900 P.2d at 319. Under the Lockwood approach, however, an employee must allege and establish that the employer had actual knowledge that the employee was being harmed; allegations such as that an employer “had ample reason to know” of the harm being experienced are insufficient. Lockwood, 272 Mont. at 209, 900 P.2d at 318.

¶15 With these principles in mind, we turn to the evidence presented by Karen in opposition to Montana Resources’ motion for summary judgment and her arguments that the evidence raised genuine issues of material fact regarding Montana Resources’ intent to harm Carl. Karen first argues that Montana Resources acted with malice and intent to harm based on the evidence that, through Gates, it directed Carl to perform work 10 feet off the ground while standing on an unsecured ladder and without the appropriate safety belt and lanyard to protect him. We note at the outset that the record does not support her characterization of the evidence in this regard.

¶16 The evidence before the District Court on the motion for summary judgment consisted of the affidavits of Gates and Ray Tilman, the Montana Resources employee who investigated the circumstances of the accident, as well as the report of the federal Mine Safety and Health Administration (MSHA) inspector who investigated the accident. Nothing in these documents supports Karen’s assertion that Carl was directed to use an unsecured ladder rather than the available scaffolding or directed not use the safety belt and lanyard. Gates only directed Carl and Wenger to repair the hinge pin keeper. The manner in which they made the repair was left up to them. Neither Montana Resources nor Gates “directed” Carl to complete the repairs using unsafe equipment or techniques.

¶ 17 Karen relies on Lockwood for the proposition that intent to injure an employee means intent that the employee should be exposed to the harm. She argues from that premise that, by allowing Carl to work on an unsecured ladder without a safety belt and lanyard, Montana Resources intended that Carl be exposed to the harm of serious injury or death. Lockwood does not support Karen’s argument.

¶18 The employee in Lockwood died of lung cancer allegedly caused by daily exposure to vermiculite and asbestos dust at his workplace. Based on an allegation that the employer knew its acts of exposing the employee to vermiculite and asbestos dust actually created harm to the employee, we concluded that the complaint was sufficient to avoid the Act’s exclusivity provision. In so concluding, we stated that

intent to injure does not mean desire to injure; it means that the employer intended that the employee should undergo the injury — the exposure to the harm — of which the employer knew on a daily basis.

Lockwood, 272 Mont. at 210, 900 P.2d at 319 (citation omitted). Here, Carl was not exposed to harm in the Lockwood sense that he definitely would be injured as a result of the conditions under which he was working. Rather, he was exposed to the risk of harm if he should fall from the ladder and, in Lockwood, we concluded that a similar allegation that the employer knew its acts created a high degree of risk to the employee was insufficient to allege intentional harm directed at the employee. Lockwood, 272 Mont. at 209-10, 900 P.2d at 318-19. Thus, Montana Resources’ knowledge that an employee working 10 feet above the floor on an unsecured ladder without a safety belt and lanyard was risking injury is insufficient to raise a genuine issue of material fact that Montana Resources directed intentional harm at Carl.

¶ 19 Karen also argues that Montana Resources’ intent to harm Carl is evidenced by Gates’ personal knowledge that Carl was using equipment in an unsafe manner — established by Gates himself climbing the ladder to inspect Carl’s work- — and failure to instruct Carl to use the available scaffolding instead of the unsecured ladder. She asserts that, because Gates had been injured in a fall under nearly identical circumstances several years prior to Carl’s accident, which resulted in the design and construction of the scaffolding that Carl did not use, Gates had actual knowledge that Carl was being exposed to the harm of falling off the ladder. Thus, according to Karen, Gates’ actual knowledge of the hazard, combined with his failure to instruct Carl to use the scaffolding or, at least, a safety belt and lanyard, equates to specific intent to harm Carl.

¶20 Again, Karen’s evidence in this regard establishes only negligence — perhaps even wanton negligence — rather than an intentional and malicious act by Gates which caused Carl’s injuries and death. Negligence, even wanton negligence, is insufficient to avoid the exclusive remedy of the Act. Schmidt, [286 Mont. 98], 951 P.2d at 28.

¶21 Finally, relying on the fact that the MSHA cited and fined Montana Resources for violations of two federal regulations promulgated under the Mine Safety and Health Act resulting from the circumstances of Carl’s accident, Karen argues that these violations are sufficient to raise a genuine issue of material fact regarding an intentional and malicious act by Montana Resources which caused Carl’s injuries and death under § 39-71-413, MCA. As discussed above, however, violations of safety statutes or regulations constitute, at most, negligence and do not serve as the basis for an intentional tort. Schmidt, [286 Mont. 98], 951 P.2d at 29.

¶22 We conclude that Karen failed to raise a genuine issue of material fact regarding whether Montana Resources caused Carl’s injuries and death via an intentional and malicious act or omission. We hold, therefore, that the District Court did not err in granting summary judgment to Montana Resources on the basis that Karen’s claims are barred by the exclusivity provision of the Act.

¶23 Affirmed.

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


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARTY HAYWORTH, Defendant and Appellant.
    No. 97-424.
    Submitted on Briefs April 23, 1998.
    Decided June 23, 1998.
    1998 MT 158.
    55 St.Rep. 631.
    964 P.2d 1.
    289 Mont. 433.

      See C.J.S. Criminal Law § 932.

      For Appellant: Bethany F. Schendel, Attorney at Law, Great Falls.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; Brant S. Light, Cascade County Attorney; Julie Macek, Deputy County Attorney; Great Falls.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Marty Hayworth appeals from a judgment and sentence of the Eighth Judicial District Court, Cascade County, based on a jury verdict convicting him of two counts of attempted deliberate homicide by accountability. For the reasons stated below, we affirm.

¶2 Hayworth presents the following issues on appeal:

¶3 1. Did the District Court err in denying Hayworth’s motion to suppress evidence of his confession?

¶4 2. Did the District Court err in denying Hayworth’s motion to exclude evidence of a discussion between Hayworth and co-defendant Lloyd Maier?

¶5 3. Did the District Court err in permitting Nick Burwell and Katie Crepeau to testify for the State?

¶6 4. Did the District Court err in permitting Nick Burwell to refresh his memory while testifying?

¶7 5. Did the District Court err in denying Hayworth’s motion for a directed verdict?

¶8 6. Did the District Court err in denying Hayworth the opportunity to call attorneys Toni Marra and Scott Albers as rebuttal witnesses?

FACTUAL AND PROCEDURAL BACKGROUND

¶9 On the afternoon of August 12,1995, Hayworth met up with Robert Bradford and Brian Kunesh, the victims in this case. Bradford was attempting to locate some car stereo equipment, and asked if Hayworth knew where he could find some car speakers.

¶10 Shortly after his encounter with Bradford and Kunesh, Hayworth gave an acquaintance of his, Nick Burwell, a ride to the trailer park where co-defendant Lloyd Maier resided. Burwell told Hayworth that someone named Tray had made death threats against Hayworth. Burwell and Hayworth then visited with Maier in his trailer and engaged in a conversation, the precise content of which is disputed by the various witnesses in this case. At some point during their conversation, however, it is clear that Maier learned of the threats made against Hayworth by Tray.

¶11 Shortly thereafter, Burwell asked Hayworth for a ride to the home of his friend, Shadow Mogensen. Before the three departed for Mogensen’s, Maier loaded his SKS assault rifle and Burwell placed it in Hayworth’s vehicle. With Hayworth behind the wheel, the three drove to Mogensen’s home. When they arrived, Hayworth went into the house to use the telephone, and Mogensen came out to the vehicle to speak with Maier. At some point, after everyone had entered the house, Mogensen asked Burwell, Hayworth, and Maier to leave.

¶12 As they pulled away from Mogensen’s house, Hayworth was driving and Maier was in the van’s front passenger seat. Shortly thereafter, they passed Bradford and Kunesh’s vehicle approaching from the opposite direction. Burwell testified that he heard Hayworth say to Maier, “There’s Bradford, do you want to get him?” and that Maier responded affirmatively. Hayworth then sped up, made a U-turn and pulled up next to the car driven by Bradford. One witness testified that Hayworth was driving so quickly that the van fishtailed as it approached Bradford’s vehicle. Once Hayworth had stopped the van, Maier fired several shots at the vehicle, injuring both Bradford and Kunesh.

¶13 On August 15,1995, Great Falls police questioned Maier about the incident. Maier related his version of the events which had transpired on August 12,1995, and told police that Hayworth could verify his story. Maier then left the police station, and returned later that afternoon with Hayworth. Police placed Maier and Hayworth in separate rooms for questioning. Hayworth was first questioned by Officer Richard Hollis, who testified that he advised Hayworth of his Miranda rights and that Hayworth indicated he understood those rights and was willing to answer questions. Hayworth, in contrast, testified that Hollis did not explain his Miranda rights, but simply presented him with a form and instructed him to sign it prior to questioning. The State did not produce a written waiver in this case.

¶14 During his interview with Officer Hollis, Hayworth indicated that Burwell had fired the shots which injured Bradford and Kunesh. After Officer Hollis finished questioning Hayworth, he left the room and spoke with Officer Steffens who had just finished questioning Maier. Officer Hollis then proceeded to interview Maier, while Officer Steffens began questioning Hayworth. Officer Steffens did not advise Hayworth of his Miranda rights, and did not ask Officer Hollis whether had already Mirandized Hayworth. Confronted with inconsistencies between his and Maier’s version of events, Hayworth altered his explanation of events and told Officer Steffens that Maier had in fact fired the shots which injured Bradford and Kunesh. After Hayworth had confessed his involvement in the events of August 12, 1995, to Officer Steffens, Officer Hollis returned to interview Hayworth again. Officer Hollis did not give Hayworth a full Miranda warning, but instead advised him that he was still under his rights. When Officer Hollis finished his questioning, he arrested Hayworth on an outstanding warrant for a probation violation.

¶15 By way of an information filed in the Eighth Judicial District Court on August 16,1995, Hayworth was charged with two counts of attempted deliberate homicide by accountability, in violation of §§ 45-4-103(1), 45-2-302(3), and 45-5-102(l)(a), MCA (1993). Hayworth was tried before a jury on March 19-22, 1996, and found guilty of both counts. On June 25,1996, the District Court sentenced Hayworth to sixty years in Montana State Prison on each count, with the sentences to run concurrently. Hayworth appeals.

ISSUE 1

¶16 Did the District Court err in denying Hayworth’s motion to suppress evidence of his confession?

¶17 Prior to trial, Hayworth filed a motion to suppress evidence of the “confession and/or admission,” (hereinafter confession) he made during questioning by Officers Hollis and Steffens, on the grounds that it was given involuntarily. Following a suppression hearing, the District Court denied Hayworth’s motion in a March 19,1996, order. Looking to the totality of the circumstances, the court found that Hayworth “was given his Miranda rights and understood them, and that he made a knowing waiver thereof before giving his confession.”

¶18 On appeal, Hayworth argues the court erred in finding he had been advised of his Miranda rights and erred in finding he knowingly, voluntarily, and intelligently waived those rights before giving his confession. Hayworth asserts the State failed to introduce evidence of the particular Miranda rights given, and failed to introduce a written waiver demonstrating Hayworth’s decision to waive those rights. Moreover, Hayworth argues the State failed to rebut his assertion that “he was enticed before he made any incriminating statement to Detective Steffens.” In conclusion, Hayworth argues the District Court erred in denying his motion to suppress evidence of his confession “because it resulted from a custodial interrogation where he was not properly Mirandized and the State failed to rebut testimony of involuntariness.”

¶19 In response, the State first argues that, because Hayworth voluntarily appeared at the police station, he was not in custody at the time of his interrogation, and law enforcement officers were thus under no obligation to advise him of his Miranda rights. Even assuming Hayworth was in custody, however, the State argues the District Court properly looked to the totality of the circumstances before finding that Hayworth had been advised of his Miranda rights and agreed to waive them before making a voluntary confession.

¶20 We review a district court’s denial of a motion to suppress evidence to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Siegal (1997), 281 Mont. 250, 257, 934 P.2d 176, 180 (citing State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021; State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94). We have recognized that “when a defendant raises the question of voluntariness, the State must prove by a preponderance of the evidence that the confession or admission was voluntarily obtained.” State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208; § 46-13-301(2), MCA. The question of whether a defendant has given a voluntary confession “is largely a factual determination that is within the discretion of the district court.” State v. Grey (1995), 274 Mont. 206, 209, 907 P.2d 951, 953.

¶21 We have held that, in making that factual determination, the district court “must take into account the totality of the circumstances.” State v. Loh (1996), 275 Mont. 460, 475, 914 P.2d 592, 601. Among the factors which the court must consider when evaluating the totality of the circumstances are the defendant’s age and level of education, the interrogation technique used, whether the defendant was advised of his Miranda rights, the defendant’s prior experience with the criminal justice system and police interrogation, the defendant’s background and experience, and the defendant’s demeanor, coherence, articulateness, and capacity to make full use of his faculties. Loh, 275 Mont. at 475-76, 914 P.2d at 601-02; State v. Hermes (1995), 273 Mont. 446, 450, 904 P.2d 587, 589.

¶22 In the present case, the District Court looked to the totality of the circumstances surrounding Hayworth’s confession, and found the following:

Defendant Marty Hayworth is approximately thirty-three (33) years old. He understands English and is of average intelligence. He has had numerous prior contacts with the criminal justice system, and has been given Miranda warnings on prior occasions. The Court finds that the police officers’ testimony was credible and that the Defendant’s was not. Accordingly, the Court believes that Defendant was given his Miranda rights and understood them, and that he made a knowing waiver thereof before giving his confession.

¶23 At the suppression hearing, Hayworth testified that Officer Hollis gave him a form and told him to sign it so the officers could speak to him, but asserted he was not given an opportunity to read it. Moreover, when asked if law enforcement officers explained his rights to him, Hayworth responded, “Not that I know of.”

¶24 Although Hayworth argues he was not informed of his rights, we conclude otherwise and hold the record contains substantial evidence which supports the District Court’s finding that Hayworth “was given his Miranda rights and understood them.” For example, at the suppression hearing Officer Hollis testified that he did in fact advise Hayworth of his Miranda rights when “he came in the office and the interview started.” Also, Officer Hollis testified that Hayworth appeared to understand those warnings, and was able to respond appropriately to his questions. Although Hayworth asserted he had not slept for a prolonged period of time and was under the influence of drugs at the time of the questioning, Officers Hollis, Steffens, and Jim Wells all testified that Hayworth did not appear to be tired or under the influence of drugs. Furthermore, as the District Court found, the record indicates that Hayworth was thirty-three years, old at the time, of average intelligence, and had had numerous prior contacts with the criminal justice system.

¶25 Based on the foregoing, and having considered the totality of the circumstances surrounding Hayworth’s confession, we conclude that substantial evidence exists to support the District Court’s finding that the State met its burden of showing by a preponderance of the evidence that Hayworth made a knowing, intelligent, and voluntary confession.

ISSUE 2

¶26 Did the District Court err in denying Hayworth’s motion to exclude evidence of a discussion between Hayworth and co-defendant Lloyd Maier?

¶27 On the first day of his March 19,1996, trial, Hayworth filed a motion in limine asking that the court issue an order prohibiting the State “from referring to any and all of Defendant’s prior acts, including drug activity.” More specifically, defense counsel clarified prior to jury selection that she would object to any attempts by the State to introduce evidence of statements allegedly made by Hayworth on the day of the crime regarding his intent to kill a man known as Big Rich, and one known as Tray. Hayworth argued that any evidence of his intent to kill either Big Rich or Tray was not part of the res gestae and, therefore, was inadmissible. The State, in contrast, argued that any such statements were admissible as part of the res gestae. After hearing argument by the parties, the District Court ruled from the bench, ordering that it would “deny the motion in limine” and “allow the State to introduce this evidence.”

¶28 As with any evidentiary ruling, we review the district court’s decision for an abuse of discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶29 On appeal, Hayworth argues it was an abuse of discretion for the District Court to deny his motion in limine and admit “evidence regarding any potential plan to kill Tray or Big Rich Rustvold, that may have been discussed at Maier’s trailer earlier on the day that Bradford and Kunesh were shot.” Hayworth first argues evidence that he discussed killing anyone other than the victims in this case was not relevant, and was thus inadmissible. Even if relevant, Hayworth asserts, such evidence “was extremely prejudicial and minutely probative and therefore, should have been excluded at trial.” Hayworth also argues any evidence that he discussed killing Tray or Big Rich was wholly independent of, and unrelated to the crime charged, and as such, was not part of the res gestae. Finally, Hayworth asserts for the first time on appeal that any evidence regarding a plan to kill Big Rich was not properly corroborated and, therefore, was inadmissible.

¶30 The State, in response, asserts that “[ejvidence of Hayworth’s and Maier’s discussions about killing Tray, Rustvold, and Bradford immediately prior to the loading of the weapon and traveling to Shadow Mogensen’s house was properly admitted as part of the res gestae.” The State argues the challenged evidence was relevant as well as probative, and “was clearly part and parcel of the same criminal offense with which [Hayworth] was charged.”

¶31 We have held that “the State is entitled to present the entire corpus delicti of the crime charged, including matters closely related to the offense and explanatory of the crime.” State v. Monaco (1996), 277 Mont. 221, 226, 921 P.2d 863, 866. Under the concept of corpus delicti, “[ejvidence of acts which are inextricably or inseparably linked with the crime charged is admissible without regard to the rules governing‘other crimes’ evidence.” State v. Romero (1986), 224 Mont. 431, 438, 730 P.2d 1157, 1162. Additionally, we have recognized that “admissibility is predicated on the jury’s right to hear what transgressed immediately prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred.” State v. Moore (1992), 254 Mont. 241, 246, 836 P.2d 604, 607.

¶32 In State v. Wing (1994), 264 Mont. 215, 224, 870 P.2d 1368, 1374, we recognized that “[tjhe concepts embraced by the term res gestae are included within the codification of that common law doctrine ... referred to as the ‘transaction’ rule.” We clarified that “[w]hether an act is referred to as part of the res gestae or as part of the ‘transaction,’ that act is evidence which is part of the same litigated event.” Wing, 264 Mont. at 224, 870 P.2d at 1374. It is well established “that evidence which tends to explain circumstances surrounding the charged offense is relevant, probative and competent.” Wing, 264 Mont. at 225, 870 P.2d at 1374.

¶33 Although Hayworth argues otherwise, we conclude evidence of a discussion between Hayworth and Maier in which the two discussed a plan to kill Tray or Big Rich is clearly a part of the res gestae and corpus delicti of the crime charged. The record indicates that the discussion at issue took place just prior to the time Hayworth and his companions drove into town with a loaded assault rifle. The State was entitled to explain the circumstances surrounding the charged offense by introducing evidence of that conversation. It was not error for the District Court to allow the State to introduce evidence of “what transgressed immediately prior ... to the commission of the offense,” so that the jury could “evaluate the evidence in the context in which the criminal act occurred.” Moore, 254 Mont. at 246, 836 P.2d at 607. Based on the foregoing, we hold the District Court did not abuse its discretion in admitting, as part of the res gestae or corpus delicti of the crime charged, evidence of a discussion between Hayworth and Maier in which the two discussed a plan to kill Tray and Big Rich.

ISSUE 3

¶34 Did the District Court err in permitting Nick Burwell and Katie Crepeau to testify for the State?

¶35 At trial, Hayworth objected to the State calling Nick Burwell and Katie Crepeau as witnesses on the grounds that the State had failed to provide him with formal written notice of its intent to do so. The District Court overruled Hayworth’s objections, and permitted both witnesses to testify. On appeal, Hayworth asserts the State’s failure to provide him with formal written notice of its intent to call Crepeau and Burwell as witnesses caused him “great[] prejudice.” The State, in response, asserts “[tjhere was no surprise, no prejudice to the defense, and no abuse of discretion” by the District Court in permitting the two witnesses to testify.

¶36 We review the district court’s decision for an abuse of discretion. State v. Liddell (1984), 211 Mont. 180, 190, 685 P.2d 918,924.

¶37 The record indeed indicates that the State failed to provide Hayworth with formal written notice of its intent to call Crepeau as a witness. Hayworth objected to the State’s initial attempts to call Crepeau to the stand on the second day of trial. The State conceded that, although it had served Hayworth’s co-defendant with notice of its endorsement of Crepeau, it had failed to similarly provide Hayworth with formal notice of its intent to call her as a witness. The prosecutor indicated that she had, however, “personally talked to the defense and given them these people and told them who we were calling.” In contrast, Hayworth’s counsel maintained that she “never knew about Katie Crepeau.”

¶38 By way of resolution, the District Court suggested that the State call Crepeau “at a different time,” thereby giving Hayworth’s counsel the opportunity to interview the witness. Hayworth voiced no objection to the remedy proposed by the court, and indeed interviewed Crepeau before the State called her to testify. After having an opportunity to interview her, Hayworth did not object when the State called Crepeau to the stand. We additionally note that, although Hayworth asserts he did not learn of Crepeau’s existence until the second day of trial, the State’s affidavit in support of its motion for leave to file the information in this case identified Crepeau and described her involvement in the events of August 12, 1995.

¶39 In light of the foregoing, we conclude the State’s failure to provide Hayworth with formal written notice of its intent to call Crepeau as a witness did not prejudice the defendant, and conclude the District Court did not abuse its discretion in permitting Crepeau to testify on behalf of the State.

¶40 At trial, Hayworth similarly objected to the State calling Burwell as a witness “because, again, he was not formally endorsed as a witness in this case.” In response, the prosecutor argued that Hayworth had known for months that Burwell was going to testify and had in fact interviewed Burwell in anticipation of trial. Moreover, the prosecutor represented to the court that she had “personally discussed the fact that [Burwell] was going to be a witness in this matter” with Hayworth’s defense counsel. Thus, although the prosecutor conceded the State had failed to provide Hayworth with formal written notice of its intent to call Burwell as a witness, she argued the State’s intent to call him was not “in any way any type of a surprise” to Hayworth’s counsel.

¶41 As demonstrated by the following exchange between Hayworth’s counsel and the presiding judge, the record indicates Hayworth was not prejudiced by the court’s decision to allow Burwell’s testimony:

Q: [The court]: Are you telling me that Mr. Albers didn’t interview this guy in anticipation of trial?
A: [Hayworth’s counsel]: I’m saying we’ve — I guess I can’t say why he interviewed him. I suspect he knew he was a possible witness in this case. But we’ve never got any formal notice that he was going to be called.
Q: I understand. So the objection is you didn’t receive a formal written notice?
A: Yes.
Q: Are you claiming prejudice if he testifies now?
A: We would claim prejudice in light — I think we have a right to stand by the rules of procedure.
Q: I understand that. I’m not obj ecting to your making — I’m not quarreling with your making the objection. I just want to find out if you think there’s some prejudice to you if he testifies right now.
A: We have interviewed Mr. Burwell.
Q: Are you prepared to cross-examine him?
A: Yes.

¶42 In light of the foregoing exchange, we similarly conclude the State’s failure to provide Hayworth with formal written notice of its intent to call Burwell as a witness did not prejudice the defendant, and conclude the District Court did not abuse its discretion in permitting him to testify on behalf of the State.

ISSUE 4

¶43 Did the District Court err in permitting Nick Burwell to refresh his memory while testifying?

¶44 During Burwell’s testimony at trial, the State asked him about a taped statement he had given to police during an August 1995 interview. Burwell acknowledged giving the statement, and agreed that looking at that statement would enable him to better remember what happened on the day of the crime. The prosecutor then asked Burwell to read to himself a portion of the transcript from the taped statement.

¶45 Hayworth objected to the prosecutor “showing the statement before she asks questions,” asserting that “the proper method is to ask questions [and] then show it to him.” The court noted that Hayworth had “already been asked a question,” and accordingly overruled Hayworth’s objection.

¶46 On appeal, Hayworth argues the District Court erred in permitting Burwell to refresh his recollection at all, and erred in permitting the State to introduce portions of Burwell’s statement into evidence. Review of the record indicates that Hayworth failed to specifically raise either of these objections at trial. Because he failed to properly preserve these precise objections at trial, Hayworth is precluded from now raising them for the first time on appeal. See, e.g., State v. Swoboda (1996), 276 Mont. 479, 481, 918 P.2d 296, 298.

ISSUE 5

¶47 Did the District Court err in denying Hayworth’s motion for a directed verdict?

¶48 Hayworth orally moved for a directed verdict at the close of the State’s case, asserting the State had failed to demonstrate that he “purposely and knowingly turned that car around with the intent of facilitating the shooting of Mr. Bradford and Kunesh.” Hayworth asserted that, because the State’s case rested almost entirely upon the uncorroborated “testimony of codefendants or coconspirators,” he was entitled to a directed verdict.

¶49 The State opposed Hayworth’s motion, instead arguing there was ample “evidence before the jury to substantiate the elements of the crime” charged. The court agreed, and denied Hayworth’s motion on the grounds that there was “sufficient evidence to establish a prima facie case.”

¶50 A district court’s decision to grant or deny a motion for a directed verdict lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Keating (1997), 285 Mont. 463, 476-78, 949 P.2d 251, 260, 54 St. Rep. 1250, 1255. It is well established that “we review a trial court’s denial of a motion for a directed verdict to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Keating, 285 Mont. 477, 949 P.2d at 260, (quoting State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307).

¶51 On appeal, Hayworth argues the primary evidence connecting him to the commission of the crimes charged is that of his own confession, as well as that contained in Burwell’s “accomplice” testimony. Alleging the State failed to introduce evidence which corroborated either his own confession or Burwell’s testimony, Hayworth contends there was insufficient evidence to go to the jury and asserts the court thus erred in denying his motion for a directed verdict.

¶52 With respect to the State’s ability to rely upon evidence of Hayworth’s confession, § 46-16-215, MCA, provides that “[b]efore an extrajudicial confession of the defendant to the crime charged may be admitted into evidence, the prosecution shall introduce independent evidence tending to establish the commission of the crime charged.”

¶53 We have held that the plain language of § 46-16-215, MCA, “requires only that the prosecution present independent evidence tending to establish that the crime was committed, not that the defendant committed it.” State v. Campbell (1996), 278 Mont. 236, 244-45, 924 P.2d 1304, 1310.

¶54 Here, review of the record indicates the State clearly presented independent evidence which established the elements of the crime charged. For example, before the State introduced evidence of Hayworth’s statements, the victims testified and described the events which transpired on August 12,1995. Furthermore, the State introduced evidence that police had found rifle casings on the street and that the victims’ vehicle had several bullet holes in it. Finally, Crepeau testified that she witnessed Hayworth drive down the street, make a U-turn and pull up alongside the victims’ car just before shots were fired. In light of the foregoing, we conclude the State provided evidence which corroborated Hayworth’s statements to police, and hold it was not error for the court to admit those statements into evidence.

¶55 As noted above, Hayworth additionally asserts the State failed to present evidence to corroborate Burwell’s testimony, and that his conviction should thus be overturned. Hayworth characterizes Burwell as an accomplice, contending that “[i]f Defendant is legally accountable for Maier’s actions, then so is Burwell.”

¶56 Section 46-16-213, MCA, provides that:

A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense ... unless the testimony is corroborated by other evidence that in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense.

¶57 In State v. Kaczmarek (1990), 243 Mont. 456, 795 P.2d 439, we explained that:

“To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant’s conviction or even to make out a prima facie case against him. Corroborating evidence may be circumstantial and may come from the defendant and his witnesses.”
State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. (Emphasis added.) (Citations omitted.) Corroborating testimony is viewed in a light most favorable to the State. The corroborating evidence need only tend to connect the defendant with the crime charged and need not extend to every fact to which the accomplice testifies. Thus, corroborating evidence is not insufficient merely because it is circumstantial, disputed, or possibly consistent with innocent conduct; it is the jury’s duty to resolve such factual questions.

Kaczmarek, 243 Mont, at 459-60, 795 P.2d at 441-42 (citations omitted).

¶58 In the present case, whether Burwell was, as Hayworth asserts, an accomplice to the crimes charged, is, at best, questionable. Even assuming Burwell was an accomplice, however, we conclude the State presented ample evidence which corroborates his testimony. For example, Bradford, one of the victims in this case, identified Hayworth as the driver of the van and testified that Hayworth initially slowed down as he approached Bradford and Kunesh’s vehicle, but then came “flying around” and cut them off just before shots were fired. Moreover, Crepeau corroborated Burwell’s testimony regarding the speed and intentional manner in which Hayworth drove to reach and cut off Bradford’s vehicle. Having reviewed the record, we conclude the State provided evidence which corroborated Burwell’s testimony. ¶59 Based on the foregoing, we hold the District Court did not abuse its discretion in denying Hayworth’s motion for a directed verdict.

ISSUE 6

¶60 Did the District Court err in denying Hayworth the opportunity to call attorneys Toni Marra and Scott Albers as rebuttal witnesses?

¶61 At the close of the second day of trial, Hayworth informed the court that he intended to call co-defendant Maier’s attorney, Toni Marra, as a rebuttal witness for the limited purpose of rebutting certain portions of Detective Hollis’s testimony. Hayworth also informed the court that he intended to call Scott Albers, formerly Hayworth’s and Mogensen’s attorney, as a witness to rebut portions of Nick Burwell’s testimony.

¶62 After reviewing a transcript of Officer Hollis’s and Burwell’s testimonies, the court determined that there were “some issues that would be proper for impeachment.” After conferring with her client, Marra indicated Maier would allow her to testify if the court would make a prior ruling restricting the scope of Hayworth's questioning. The court refused to “make that prior ruling,” so Maier asserted his attorney-client privilege and the court refused to allow Marra to testify. ¶63 The court and counsel engaged in a similar discussion with respect to Hayworth’s attempts to call Mogensen’s former attorney, Scott Albers, as a witness. Mogensen did not waive her attorney-client privilege, so the court similarly refused to allow Albers to testify.

¶64 On appeal, Hayworth argues the court erred in denying what he characterizes as Marra’s motion for a protective order limiting the scope of Hayworth’s questioning. Hayworth also agues the “specific rebuttal testimony” he wished to elicit from Marra “was not attorney-client privilege because the conversation” he wanted to ask her about “occurred in the presence of third parties.” Hayworth argues he was prejudiced by the court’s refusal to issue a protective order, and he was thereby “denied the opportunity to present crucial testimony which greatly prejudiced him and deprived [him] of the right to a fair and impartial trial.”

¶65 Having reviewed the record, we conclude Hayworth’s arguments are without merit. Whether Marra actually moved for a protective order is not at all clear. Even assuming she did, we hold it was not error for the court to refuse to “make a prior ruling” limiting the scope of Hayworth’s questioning. Although Hayworth asserts the statements about which he intended to ask Marra occurred in the presence of third parties, Maier asserted his attorney-client privilege to protect, not what Marra may have heard during the interview with the police officer, but rather what privileged information she may have revealed on cross-examination. We hold the District Court did not abuse its discretion in denying Hayworth the opportunity to call Maier’s attorney as a rebuttal witness in light of the fact that Maier refused to waive his attorney-client privilege. We similarly hold the District Court did not abuse its discretion in refusing to permit Scott Albers to testify in light of the fact that Mogensen never waived her attorney-client privilege.

¶66 Affirmed.

JUSTICES GRAY, LEAPHART, HUNT and TRIEWEILER concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS VEIS, Defendant and Appellant.
    No. 97-169.
    Submitted on Briefs April 30, 1998.
    Decided June 25, 1998.
    1998 MT 162.
    55 St.Rep. 651.
    962 P.2d 1153.
    289 Mont. 450.

      See C.J.S. Witnesses § 648.

      For Appellant: William F. Hooks; Appellate Defender Office; Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer M. Anders, Assistant Attorney General; Helena; Dennis Paxinos, Yellowstone County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The defendant, Douglas Veis, was charged in the District Court for the Thirteenth Judicial District in Yellowstone County with four felony counts of sexual intercourse without consent. After a trial in which Veis objected to certain evidentiary offerings by the State, a jury convicted Veis of all four counts, and he received forty-year sentences for each offense. Veis appeals. We affirm the judgment of the District Court.

¶2 There are two issues on appeal:

¶3 1. Did the District Court abuse its discretion when it admitted testimony from one of the victims regarding prior acts by Veis?

¶4 2. Did the District Court abuse its discretion when it admitted testimony from the victims’ therapist regarding their references to their alleged abuser during therapy sessions?

FACTUAL BACKGROUND

¶5 Douglas Veis and Tina Eckelman first met as coworkers in 1989 and dated for approximately six months. Eckelman has two sons, S. J. and B. J., currently ages fourteen and ten, respectively. After his relationship with Eckelman ended, Veis remained a family friend, and both boys knew him.

¶6 In the fall of 1995, Eckelman learned that S. J. was abusing B. J., and in response, she took both boys to a therapist, Ella Dugan-Laemmle. Dugan-Laemmle learned that both boys had been abused by a third person, although they initially refused to identify the individual. Soon thereafter, S. J. identified Veis as his abuser to both his mother and Dugan-Laemmle.

¶7 On November 1, 1995, the State filed an information and supporting affidavit that charged Veis with three felony counts of sexual intercourse without consent. It alleged that during 1993-1995, Veis twice had sexual intercourse with S. J., and once with B. J., in violation of § 45-5-503, MCA.

¶8 A trial was held in June 1996, but the jury was unable to reach a verdict, and a second trial was scheduled for August 1996. Prior to the second trial, the State amended the information to add a fourth felony count of sexual intercourse during the same period, based on another alleged incident with S. J.

¶9 During the second trial, Veis contended that he did not commit the acts and that another individual was responsible for the crimes against the boys. In support of that defense, he cross-examined S. J. about an anonymous note that S. J. had written and given to school officials in March 1995. The note stated that S.J.’s father had raped him. After an investigation by school officials, they concluded that the note was a prank.

¶10 On the first morning of the trial, the State filed a motion in limine to exclude the note on the grounds that it was not relevant. The District Court denied the motion and ruled that it was relevant to the defense’s theory, as well as to the witness’s veracity. In response, the State sought to admit evidence of acts of abuse involving Veis and S. J. prior to those specifically alleged to have occurred in the summer of 1995. It contended that the prior acts should be admitted as res gestae, along with the therapist’s testimony, to explain the note. After Veis referred to the note during his opening statement and then questioned S. J. about it during cross-examination, the District Court allowed the State in its redirect to ask S. J. about why he wrote the note. S. J. referred to other incidents with Veis prior to when he wrote the note and testified that he wrote the note in order to gain the courage and attention to tell someone about the abuse.

¶ 11 Later in the trial, Dugan-Laemmle testified about some of the methods that she used with the boys to relieve their anger during therapy, and she identified exhibits from the boys’ exercises. They included: a letter that she instructed S. J. to write to his abuser; a list of names prepared by S. J. of people with whom he was angry and on which he had circled the name of the person with whom he was most angry; and a file folder with many marks on it made by B. J. when he stabbed it with a pen through a top piece of paper on which the name of B. J.’s abuser had been written. Dugan-Laemmle did not otherwise identify the individual who the boys told her had abused them.

¶ 12 At the conclusion of the four-day trial, a jury convicted Veis of all four counts. On January 2,1997, the District Court entered its judgment and commitment in which it sentenced Veis to forty-year sentences for each conviction.

ISSUE 1

¶ 13 Did the District Court abuse its discretion when it admitted testimony from one of the victims regarding prior acts by Veis?

¶14 We review a district court’s evidentiary decisions for an abuse of discretion. See State v. Gregoroff (1997), [287 Mont. 1], 951 P.2d 578, 580; State v. Widenhofer (1997), [286 Mont. 341], 950 P.2d 1383, 1387.

¶15 The State sought to exclude evidence of the note written by S. J. When the District Court held that the note written by S. J. could be admitted by Veis to support his theory that another person had committed the abuse against the boys and to impeach S.J.’s credibility, the State moved to allow S. J. to testify regarding prior abuses by Veis in order to explain why he wrote the note. Veis objected to admission of the prior acts evidence on the basis that the State had failed to comply with the procedural requirements of State v. Just (1979), 184 Mont. 262, 612 P.2d 957. See also State v. Matt (1991), 249 Mont. 136, 814 P.2d 52 (modifying the Just requirements). The State contended that the prior acts were not Rule 404(b) evidence and, therefore, that Just did not apply, and that Veis had had actual notice of the evidence for many months. It contended that the evidence was admissible based on principles of res gestae and necessary to explain the note. The District Court eventually allowed S. J. to testify about why he wrote the note and to refer to prior abuse by Veis that was not charged in the case after Veis referred to the note in his opening statement and cross-examined S. J. about it.

¶16 Veis bases his appeal on the assumption that the evidence of other acts violates Rule 404(b), M.R.Evid., which states:

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.

He contends that res gestae, as relied on by the State in the District Court, was an improper basis for admission of the other acts testimony, and that if the evidence is not admissible pursuant to a res gestae theory, it is not admissible at all. The State concedes on appeal that res gestate is not applicable, but asserts that the testimony was nonetheless admissible for rebuttal purposes. The District Court did not state the reasons for its admission of the other acts testimony. The State contended at trial that res gestae justified the admission and, as such, Veis contends that the District Court relied on the State’s position as the basis of its decision. Regardless of the District Court’s reasons for its decision, we will not reverse the decision if it reaches the right result, even if for the wrong reason. See State v. Huether (1997), [284 Mont. 259], 943 P.2d 1291, 1294; State v. Arthun (1995), 274 Mont. 82, 87, 906 P.2d 216, 219.

¶ 17 We agree with the State that S.J.’s testimony regarding the other acts did not violate Rule 404(b), M.R.Evid. The record shows that the District Court allowed the evidence to explain the note, and only after Veis had opened the door by using the note to impeach S. J. As such, it was not offered for the purpose prohibited by Rule 404, M.R.Evid., and the Just requirements did not apply.

¶ 18 We have held that once a party opens the door regarding certain evidence, the opposing party has the right to offer evidence in rebuttal, including evidence of other acts. See State v. McQuiston (1996), 277 Mont. 397, 403, 922 P.2d 519, 523; Cline v. Durden (1990), 246 Mont. 154, 161, 803 P.2d 1077, 1081; see also Rule 611(d), M.R.Evid. Veis cross-examined S. J. regarding the note to challenge his credibility as well as the State’s allegation that Veis was the abuser. The State was therefore entitled to rehabilitate S.J.’s credibility, as the State attempted to do when it had S. J. explain what motivated him to write the admittedly false note.

¶ 19 A district court has wide discretion in determining the scope and extent of reexamination regarding matters brought out on cross-examination. See State v. Shaw (1993), 255 Mont. 298, 302-03, 843 P.2d 316, 319; Cline, 246 Mont. at 161, 803 P.2d at 1081. S.J.’s reference on redirect to the other acts was clearly relevant in light of Veis’s cross-examination. Moreover, S.J.’s explanation was supported by expert testimony regarding the behavior of abused children and their tendency to draw attention to themselves in order to disclose the harm being done to them and to transfer the blame to someone (e.g., a parent) who will not actually harm them. Finally, S.J.’s testimony regarding the other acts was very limited and was not unfairly prejudicial. Accordingly, we conclude that the District Court did not abuse its discretion when it allowed S. J. to testify regarding the other acts during the State’s redirect examination.

ISSUE 2

¶20 Did the District Court abuse its discretion when it admitted testimony from the victims’ therapist regarding their references to their alleged abuser during therapy sessions?

¶21 At trial, Veis contended for a variety of reasons that Dugan-Laemmle should not have been allowed to testify. He limits his argument on appeal to the assertion that the District Court erred when it permitted Dugan-Laemmle to relate hearsay statements from the boys’ therapy sessions, and in doing so, allowed her to testify regarding the ultimate issue; i.e., to identify Veis as the abuser. The State, on the other hand, contends that Dugan-Laemmle’s testimony was not hearsay, nor did it identify Veis. The District Court permitted the testimony on the basis that it was not hearsay, finding instead that the testimony consisted of prior consistent statements from the boys which became admissible after their credibility had been challenged, and that to the extent that it may have been hearsay, the testimony came within the present state of mind exception.

¶22 Rule 801(c), M.R.Evid., defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”

¶23 Dugan-Laemmle’s testimony about whom the boys directed their anger toward served to identify Veis based on the boys’ out-of-court statements. As such, we conclude that her testimony that referred to the actual content of the letter, the list, and the folder produced during therapy sessions, and which identified Veis, whether expressly or impliedly, was hearsay evidence.

¶24 We recognize that a statement is not hearsay pursuant to Rule 801(d)(1)(B), M.R.Evid., if it is a prior consistent statement offered in response to a challenge to the declarant’s credibility. However, in order for a statement to be admissible as a prior consistent statement pursuant to Rule 801(d)(1)(B), M.R.Evid., it must, among other things, have been made before the declarant had a motive to fabricate. See Tome v. United States (1995), 513 U.S. 150, 167, 115 S. Ct. 696, 705, 130 L. Ed. 2d 574, 588; State v. Lunstad (1993), 259 Mont. 512, 517, 857 P.2d 723, 726. Here, based on Veis’s theory of defense, S. J.’s motive to fabricate his accusations about Veis existed prior to the time that he revealed during therapy to Dugan-Laemmle that Veis was his abuser. Accordingly, testimony from Dugan-Laemmle regarding who S. J. identified during the exercises constitutes hearsay that is not admissible as a prior consistent statement.

¶25 While we recognize that the District Court erred when it permitted Dugan-Laemmle to give hearsay testimony about who the boys identified in the exhibits produced during therapy, we will not reverse Veis’s conviction on that basis alone. Rather, where hearsay testimony has been erroneously admitted, the defendant must have suffered prejudice as a result of the error to be entitled to have his conviction reversed. See State v. Stuit (1996), 277 Mont. 227, 232, 921 P.2d 866, 869; State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313.

¶26 We have held that a defendant is not prejudiced by hearsay testimony when the statements that form the subject of the inadmissible hearsay are admitted elsewhere through the direct testimony of the “out-of-court” declarant or by some other direct evidence. See Stuit, 277 Mont. at 232, 921 P.2d at 869; State v. Graves (1995), 272 Mont. 451, 460, 901 P.2d 549, 555; Riley, 270 Mont. at 440, 893 P.2d at 313. Our holdings reflect the fact that when a defendant has the opportunity to cross-examine a declarant because he or she is present at trial and testifies, the dangers that the hearsay rule seeks to avoid are not present and, therefore, hearsay regarding the declarant’s out-of-court statement that is admitted during another witness’s testimony is harmless. See State v. Canon (1984), 212 Mont. 157, 164, 687 P.2d 705, 709 (concluding that the testimony was not hearsay, but stating that even if it had been, there would have been no prejudice because “the defendant had all of the necessary opportunity to protect himself by cross-examination of [the declarant].”).

¶27 The facts in Stuit are similar to the facts here. There, the defendant appealed the District Court’s admission of hearsay testimony from an officer regarding the defendant’s identity. The officer’s knowledge was based on statements made to him by an eye-witness to the alleged offense who also testified at trial about the events and the defendant’s identity. We held that “[t]he officer’s testimony as to the identity of the shooter after [the declarant’s] testimony was merely cumulative and thus harmless.” Stuit, 277 Mont. at 233, 921 P.2d at 870.

¶28 Here, in the District Court trial both of the boys testified prior to Dugan-Laemmle’s testimony. Each of them identified Veis as their abuser. In addition, S.J. identified the letter and list of names that he had written during his therapy and described both the directions he had been given by Dugan-Laemmle when asked to write them and the content of his writings. He testified that in both the letter and the list he explicitly identified Veis as his abuser. Veis had full opportunity to cross-examine both boys. At no point during his cross-examination of S.J. or B. J. did Veis challenge the boys’ identification of Veis as their abuser. Accordingly, Dugan-Laemmle’s hearsay testimony about the boys’ identification of their abuser during therapy was simply cumulative of the boys’ own testimony and did not deny Veis the opportunity to confront his accusers.

¶29 For these reasons, we affirm the judgment of the District Court.

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


author: JUSTICE LEAPHART

text:
    RON WORDEN; JOHN FAIRSERVICE; FAYE SLICE; and TIMOTHY OWENS, on behalf of themselves and all others similarly situated, and the MONTANA DEFENDER PROJECT, Plaintiffs and Appellants, v. MONTANA BOARD OF PARDONS and PAROLE, JOHN THOMAS, JULENE KENNERLY, PATRICK FLEMING and MARY JO FOX, Defendants and Respondents.
    No. 97-394.
    Argued April 3, 1998.
    Submitted April 30, 1998.
    Rehearing Denied August 3, 1998.
    Decided July 7, 1998.
    1998 MT 168.

      55 St.Rep. 677.
    962 P.2d 1157.
    289 Mont. 459.

      See C. J.S. Records S 60.
    For Appellants: Jeffrey T. Renz (argued); Montana Defender Project, Missoula.
    For Respondents: David Ohler, Matthew A. Robertson (argued) Special Attorneys General, Montana Department of Corrections, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Appellants Ron Worden (Worden), John Fairservice (Fairservice), Timothy Owens (Owens), Faye Slice (Slice) and other similarly-situated inmates at the Montana State Prison (collectively referred to as “Inmates”) appeal from the order of the First Judicial District Court, Lewis & Clark County, dismissing their class action suit against the Montana Board of Pardons and Parole (Board of Pardons) and board members John Thomas, Julene Kennerly, Patrick Fleming, and Mary Jo Fox. We reverse in part, affirm in part, and remand.

¶2 In determining whether the District Court erred in dismissing the Inmates’ complaint for failure to state a claim, we address the following issues:

¶3 1. Does Article II, Section 9 of the Montana Constitution (right to know) require the Board of Pardons to grant the Inmates access to their parole files?

¶4 2. Do the Inmates have a right to inspect their parole files under the due process clauses of the Montana or federal constitutions?

Standard of Review

¶5 A district court’s decision to dismiss a complaint for failure to state a claim upon which relief may be granted is a conclusion of law. Hollister v. Forsythe (1996), 277 Mont. 23, 26, 918 P.2d 665, 667. We review conclusions of law to determine whether the district court is correct. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P, has the effect of admitting all well-pled allegations in the complaint. Lockwood, 900 P.2d at 317. Thus, in considering a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff, and all allegations of fact must be taken as true. Hollister, 918 P.2d at 667.

Factual and Procedural Background

¶6 The following facts, as alleged in the Inmates’ complaint, are taken as true:

¶7 Inmates Worden, Fairservice, and Owens are incarcerated at the Montana State Prison in Deer Lodge, Montana. Inmate Slice was formerly incarcerated at the Women’s Correctional Center and is currently on parole. Each allege that they have been denied access to all or part of their files by the Board of Pardons.

¶8 Worden was convicted of felonies in 1979,1981, and 1996. He alleges that prior to hearings before the Board of Pardons, he asked to review and copy documents contained in his parole records and was denied. On January 26, 1994, a student intern for the Montana Defender Project who was representing Worden at a parole hearing requested to inspect and copy Worden’s files. Worden’s student counsel was given access to only part of the file and was told he would have to copy the information by hand. He asked to see Worden’s psychological examination and was told by Board of Pardons personnel that neither he nor Worden could view that information, but that the evaluation would not be considered by the Board of Pardons. However, at bis hearing, members of the Board of Pardons told Worden that they had seen his psychological evaluation and that Worden should know what problems he needed to address. Worden was denied parole.

¶9 Fairservice was convicted of a felony in 1991. He appeared before the Board of Pardons on June 30, 1994 and was denied parole that same day. After learning that the decision was based in part on information provided by third parties, he asked to see the documents contained in his file. The Board of Pardons denied his request. Fairservice appeared before the Board of Pardons again on June 29, 1995. At this hearing, several witnesses, some of whom Fairservice did not know, testified in opposition to his release. Fairservice was denied parole. Again, he asked to see the information in his file and was denied.

¶10 Owens, who was convicted of a felony on August 17,1990, was granted parole. However, at a parole revocation hearing, his attorney asked to inspect the files held by the Board of Pardons and was denied.

¶11 Slice was incarcerated in the Women’s Correctional Center after her felony conviction in 1987. She applied for prerelease, and, prior to the hearing on her application, she was denied access to her file. Her application for prerelease was rejected.

¶ 12 The Inmates filed a class action complaint against the Board of Pardons and individual members of the Board. The Inmates allege that the Board of Pardons violated Article II, Section 9 of the Montana Constitution (right to know) and § 2-6-102, MCA (right to inspect and copy public writings) by refusing to allow them to inspect and copy their files. Those Inmates who were serving sentences for crimes committed before the 1989 amendment of § 46-23-201, MCA (eligibility for parole) also claim that the Board of Pardons violated their, due process rights under the federal and Montana constitutions. The Montana Defender Project was also named as a plaintiff in the suit. However, because it will no longer be representing Inmates before the Board of Pardons, the Defender Project states that the issue of whether its rights have been violated has been rendered moot and does not appeal.

¶13 The Board of Pardons moved to dismiss the complaint for failure to state a claim for which relief could be granted. The District Court dismissed the complaint. The court held that neither the federal nor Montana due process clauses requires that Inmates be allowed to inspect their parole files. The District Court further held that § 46-23-108, MCA, creates an expectation of privacy for individuals who disclose information to the Board of Pardons and that this privacy interest outweighs the Inmates’ right to know.

Discussion

¶14 1. Does Article II, Section 9 of the Montana Constitution (right to know) require the Board of Pardons to grant the Inmates access to their parole files?

¶15 The Inmates claim that by refusing to allow them access to their parole files, the Board of Pardons is violating Article II, Section 9 of the Montana Constitution. The District Court dismissed this claim, holding that the Inmates had failed to state a claim on which relief could be granted. The District Court did not have before it any of the Inmates’ files, and, consequently, they are not part of the record on review. Therefore, we look to the pleadings to determine whether the District Court erred in holding that the Inmates did not sufficiently state a claim for violation of the right to know.

¶16 Article II, Section 9 of the Montana Constitution states: “No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” In analyzing the right to know in Becky v. Butte-Silver Bow School Dist. No. 1 (1995), 274 Mont. 131, 906 P.2d 193, we set forth the following three-part test:

First, we consider whether the provision applies to the particular political subdivision against whom enforcement is sought. Second, we determine whether the documents in question are “documents of public bodies” subject to public inspection. Finally, if the first two requirements are satisfied, we decide whether a privacy interest is present, and if so, whether the demand of individual privacy clearly exceeds the merits of public disclosure.

Becky, 906 P.2d at 196.

¶17 The Board of Pardons is an agency under the administration of the Department of Corrections. Section 2-15-2302(6), MCA. Its members are appointed by the governor to serve in a quasi-judicial capacity and are compensated as provided by legislative appropriation. Section 2-15-2302(7), MCA. Undoubtedly, the Board of Pardons is a public agency to which the right to know applies.

¶ 18 Next, we determine whether the Inmates’ parole files are “documents of public bodies” subject to public inspection. Art. II, § 9, Mont. Const. The Inmates wish to review the contents of their own files, but contend that the files should not be available to the general public. The Inmates argue that in O’Neill v. Dep’t of Revenue (1987), 227 Mont. 226, 234, 739 P.2d 456, 461, this Court drew “a distinction between public disclosure and limited disclosure to the ... party ...” The State contends that the Inmates’ request to have the parole files opened for their individual review, but closed to the public, necessarily implies that these files are not public documents to which the right to know applies.

¶ 19 We agree that the right to know grants the public the right to examine documents of public bodies. Becky, 906 P.2d at 196. Thus, Article II, Section 9 of the Montana Constitution does not apply to the Inmates’ files unless they are open to review by every citizen. The distinction made by this Court in O’Neill between limited review by the party and general review by the public was not drawn to determine whether the subject documents were “documents of public bodies” under Article II, Section 9, but rather to aid in weighing the merits of disclosure against individual privacy interests. See O’Neill, 739 P.2d at 461.

¶20 Neither the Montana Constitution nor Montana statutes define “documents of public bodies.” However, this Court has held that the term “must reasonably be held to mean documents generated or maintained by a public body which are somehow related to the function and duties of that body.” Becky, 906 P.2d at 197. Because the Inmates’ files are not before us, we cannot determine whether they contain documents generated by the Board of Pardons or other public bodies, documents generated by private third parties, or both. However, this is not fatal to our classification of the files as “documents of public bodies.” Regardless of their content, the Inmates’ files are maintained by the Board of Pardons and are used by the Board in the performance of its official duties — determining whether an Inmate is eligible for parole. See § 46-23-104, MCA (defining responsibilities of the Board of Pardons). Thus, we hold that the Inmates’ files are “documents of public bodies” within the scope of Article II, Section 9 of the Montana Constitution.

¶21 Under its plain language, the right to know does not apply when “the demand of individual privacy clearly exceeds the merits of public disclosure.” Art. II, § 9, Mont. Const. Thus, having determined that the right to know applies to the Inmates’ parole files, we next determine the privacy interests involved and weigh these interests against the merits of public disclosure. Becky, 906 P.2d at 196. To determine whether a person has a constitutionally-protected privacy interest, this Court looks at the following factors: (1) whether the person involved had a subjective or actual expectation of privacy; and (2) whether society is willing to recognize that expectation as reasonable. Missoulian Inc. v. Board of Regents of Higher Educ. (1984), 207 Mont. 513, 522, 675 P.2d 962, 967.

¶22 In this case, the District Court held that individuals who disclose information to the Board of Pardons have an expectation of privacy created by statute, specifically § 46-23-108, MCA. Section 46-23-108, MCA, provides:

The department shall keep a record of the board’s acts and decisions available to the public. However, all social records, including the presentence report, the preparóle report, and the supervision history obtained in the discharge of official duty by the department, are confidential and may not be disclosed directly or indirectly to anyone other than the members of the board or a judge. The board or a court may, in its discretion, when the best interests or welfare of a particular defendant or prisoner makes such action desirable or helpful, permit the inspection of the social record or any parts thereof by the prisoner or his attorney.

In passing this statute, the legislature attempted to define classes of information, i.e., social records, presentence reports, preparóle reports, and supervision histories, that are not subject to the right to know. However, we have held that the legislature does not have the power to dictate through the passage of a statute under what circumstances the right to know may be exercised unless it specifically finds that curtailment of the right is necessary to protect the right of individual privacy. In re Lacy (1989), 239 Mont. 321, 325-26, 780 P.2d 186, 188. Similarly, the legislature may not specify certain documents to which the right does not apply.

¶23 In Lacy, 780 P.2d at 187, Allstate Insurance Company (Allstate) filed an application with the district court seeking production of records held by the Billings Police Department of its investigation into the death of one of Allstate’s insureds. At that time, the Criminal Justice Information Act (C JIA) stated that “[dissemination of confidential criminal justice information is restricted to criminal justice agencies [or] to those authorized by law to receive it....” Section 44-5-303, MCA (1993). The district court denied Allstate’s application, interpreting “authorized by law” to mean authorized by statute. Lacy, 780 P.2d at 188.

¶24 On appeal, we held that “any interpretation of § 44-5-303, MCA, which requires specific legislative authorization to review criminal justice information would render the statute unconstitutional.” Lacy, 780 P.2d at 188. Thus, we held that “authorized by law” must be interpreted to mean authorized by statute or constitution, including Article II, Section 9’s right to know. Lacy, 780 P.2d at 188.

¶25 We addressed the issue again in Bozeman Daily Chronicle v. City of Bozeman Police Dep’t (1993), 260 Mont. 218, 859 P.2d 435. In that case, the Bozeman Police Department was ordered to show cause why it refused to release to the Bozeman Daily Chronicle the name of a police officer accused of sexual intercourse without consent. Bozeman Daily Chronicle, 859 P.2d at 437. We reiterated that a person “is ‘authorized by law’ to receive confidential criminal justice information under the Right to Know provision of the Montana Constitution, qualified only by Article II, Section 10, of the Constitution, the ‘Right to Privacy’ provision ....’’Bozeman Daily Chronicle, 859 P.2d at 438. After balancing the police officer’s privacy interests against the public’s right to know, we concluded that the Bozeman Chronicle should be given access to the information. Bozeman Daily Chronicle, 859 P.2d at 440-41.

¶26 Although we interpreted the CJIA in a constitutional manner, we cannot do the same with § 46-23-108, MCA. Section 46-23-108, MCA, clearly denies the public access to certain information without considering the public’s right to know. The limited exception to the statute’s broad rule of nondisclosure allows an Inmate access to his or her own file upon a discretionary finding by the Board of Pardons or a court that “the best interests or welfare of a particular defendant or prisoner makes such action desirable or helpful. ...” Section 46-23-108, MCA. As noted above, “[t]he only limitation placed on the Montana right to know is the right of the individual to personal privacy.” Larry M. Elison & Deborah E. Elison, Comments on Government Censorship and Secrecy, 55 Mont. L. Rev. 175, 189. Discretionary disclosure based on “best interests” or “desirable or helpful” does not withstand constitutional scrutiny.

¶27 Section 46-23-108, MCA, denies citizens, including Inmates, their right to inspect presentence reports, preparóle reports, supervision histories, and other social records without balancing the right to know against the demands of individual privacy. Therefore, we hold that § 46-23-108, MCA, is unconstitutional.

¶28 The District Court further held that testimony provided to the Board of Pardons by third parties, including crime victims, members of the community, and professionals reporting psychological and other information regarding Inmates, “is critical to a parole board’s ability to render fair and informed decisions. Without protection, fear of inmate reprisals would prevent many of these individuals from providing information to parole boards. Consequently, the privacy interests of those providing information to parole boards outweighs the inmates’ right to know.”

¶29 While we agree that encouraging the flow of information to the Board of Pardons is an important policy, we do not agree that anyone who provides information to the Board necessarily has a privacy interest that outweighs the Inmates’ right to know. For example, law enforcement personnel would generally have no privacy interest in a document describing the crimes committed by an Inmate, nor would Department of Corrections personnel have a privacy interest in records reflecting an Inmate’s behavior while under its supervision. A victim may have a privacy interest in a letter submitted to the Board of Pardons, but often this interest can be served by simply redacting his or her address or phone number. Likewise, when members of the community submit letters to the Board of Pardons expressing concern about an Inmate’s possible parole, names and addresses can be removed. We conclude that each document in an Inmate’s file must be examined to determine whether all or part of it is subject to the privacy exception of the right to know. See Art. II, § 9, Mont. Const.

¶30 Because the documents contained in an Inmate’s file are documents of a public body, they are not only open to inspection by the Inmate, but also subject to inspection by the general public. Obviously, an Inmate has a strong privacy interest in his or her own parole file. Thus, as with the Inmates’ requests to examine their own files, the requests of third parties must be considered on a case-by-case basis to determine whether an Inmate or third party has a privacy interest in the document that outweighs the requesting party’s right to know.

¶31 Having held that the privacy interests involved must be determined on a case-by-case basis, it is necessary to discuss the burden of asserting and proving these interests. We start with the broad proposition that under Article II, Section 9 of the Montana Constitution, the public has a right to inspect all documents in the control of the Board of Pardons. Thus, it is “incumbent upon the [Board of Pardons] to demonstrate why all or portions thereof should not be released because the rights of individual privacy outweigh the merits of public disclosure.” Bozeman Daily Chronicle, 859 P.2d at 441.

¶32 Pragmatically, requiring the Board of Pardons to hold a hearing at which the Inmate and all parties with possible privacy interests appear each time an Inmate requests to review his or her parole file is unduly cumbersome. Thus, we hold that when the Board of Pardons or other agency is vicariously asserting a claim of individual privacy on behalf of an unnamed individual, the Board of Pardons should attempt to notify the individual, “advising the individual of the request for information and allowing waiver or objection.” Elison, supra, at 197. If the individual asserts a privacy interest, or “[i]f notification is not possible, for example, if the individual cannot be located or the number of individuals involved would make notification pragmatically impossible,” the Board of Pardons should independently weigh the privacy interests involved and “provide maximum access to the information while protecting the individual’s right to privacy.” Elison, supra, at 197-98.

¶33 Though the public’s right to know may only be limited when “the demands of individual privacy clearly exceed the merits of public disclosure,” Art. II, § 9, Mont. Const., when an Inmate asserts his or her right to know, there is another limitation that may be placed on the right. The United States Supreme Court has held that when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Turner v. Safley (1987), 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64. The State argues, and we agree, that the rights of the Inmates under the Montana constitution may be limited by legitimate, penological interests as well.

¶34 Section 46-18-801, MCA, states: “Conviction of an offense does not deprive the offender of a civil or constitutional right, except as provided in the Montana constitution or as specifically enumerated by the sentencing judge as a necessary condition of the sentence directed toward the objectives of rehabilitation and the protection of society.” Under Article II, Section 28 of the Montana Constitution (entitled “Rights of the convicted”), “[l]aws for the punishment of crime shall be founded on the principles of prevention and reformation. Full rights are restored by termination of state supervision for any offense against the state.” Under these provisions, the State may limit or abrogate the rights of an Inmate, as long as it is done to prevent further offenses or for reformation of the Inmate.

¶35 For example, a defendant is sentenced to incarceration, in part, to prevent further offenses and to provide an opportunity for reformation. See § 46-18-101, MCA. As a result, certain rights of the Inmate are abrogated. Other rights, such as liberty, freedom of speech and expression, and the right of privacy, although not completely lost, may be substantially limited. Likewise, Article II, Section 9 of the Montana Constitution grants citizens the right to “observe the deliberation of all public bodies.” Obviously, principles of prevention and reformation are not served by excusing an Inmate from prison to attend a public meeting.

¶36 Though we recognize that the State may limit Inmates’ rights to serve its penological interests, we note that the provision of Article II, Section 9 that we have been focusing on, the right to examine documents of public bodies, not need be completely abrogated. For example, because allowing an Inmate to inspect a document submitted by prison personnel or other Inmates to the Board of Pardons may compromise safety, the Department of Corrections could assert its legitimate penological interest in maintaining order and security within its institutions. However, as with an individual’s privacy interests, the Department of Corrections’ interests can often be served by redacting names and other identifying characteristics from such documents. We hold that such decisions must be made on a case-by-case basis to ensure that an Inmate’s right to know is only limited to the extent it serves the State’s legitimate interests.

¶37 We hold that the Inmates’ parole files are documents of a public body to which the right to know applies. We determine that once a party requests access to an Inmate’s file, it is incumbent upon the Board of Pardons to assert the privacy and penological interests involved. Only where the Board of Pardons or reviewing court determines that “the demand of individual privacy clearly exceeds the merits of public disclosure,” Art. II, § 9, Mont. Const., or that a legitimate penological interest is served by nondisclosure, may access to an Inmate’s parole files be denied.

¶38 The Inmates also argue that the Board of Pardons’ failure to allow them to inspect and copy the contents of their parole files violates § 2-6-102, MCA. Section 2-6-102, MCA, states that “[e]very citizen has a right to inspect and take a copy of any public writings of this state....” We determine that if a party is entitled to access an Inmate’s parole file under the right to know, he or she may also copy the information contained therein pursuant to § 2-6-102, MCA.

¶39 Based on the foregoing, we hold that the District Court erred in dismissing the Inmates’ claim that the Board of Pardons violated their constitutional right to know. We remand for further proceedings consistent with this opinion.

¶40 2. Do the Inmates have a right to inspect their parole files under the due process clauses of the Montana or federal constitutions?

¶41 Those Inmates who committed offenses prior to 1989 also argue that by denying them access to the information contained in their parole files, the Board of Pardons is violating their due process rights. Prior to 1989, § 46-23-201, MCA (1987), stated that “the board shall release on parole ... any person confined in the Montana state prison or the women’s correctional center... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community.” The United States Supreme Court has held that the mandatory language of this statute, “shall release,” creates a liberty interest in parole that is protected by the due process clause of the federal constitution. Board of Pardons v. Allen (1987), 482 U.S. 369, 377, 107 S.Ct. 2415, 2420, 96 L.Ed.2d 303.

¶42 In response to Allen, the Montana legislature amended § 46-23-201, MCA, to state that “the Board may release” inmates on parole when there is a reasonable probability that the prisoner can be released without detriment. Section 46-23-201, MCA (1989). The State argues that this amendment extinguished any federally-protected liberty interest in parole for all Montana Inmates. However, while those Inmates who committed offenses after 1989 concede that they have no liberty interest in parole, those Inmates who committed their crimes prior to 1989 argue that they are entitled to due process protections. We agree.

¶43 Nevertheless, the due process to which an inmate is entitled at a parole eligibility hearing is substantially less than that to which he or she is entitled in an adversarial hearing. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex (1979), 442 U.S. 1, 15, 99 S.Ct. 2100, 2108, 60 L.Ed.2d 668; Sage v. Gamble (1996), 279 Mont. 459, 929 P.2d 822. In Greenholtz, 442 U.S. at 16, 99 S.Ct. 2100, Nebraska statutes provided that an inmate eligible for parole be given an opportunity to be heard by the parole board and, if parole was denied, be informed in what respects the inmate failed to qualify. The inmates claimed that this procedure violated due process, arguing, inter alia, that the parole board should be required to specify the particular evidence on which it based its decision. Greenholtz, 442 U.S. at 15, 99 S.Ct. 2100. The Supreme Court held that a full, adversarial hearing is not required and that Nebraska’s procedure, which allowed inmates to appear before the parole board and present statements on their own behalf, satisfied due process. Greenholtz, 442 U.S. at 15-16. The Court noted that this procedure was sufficient to ensure that the board was indeed reviewing the records of the parolee before it and allowed the parolee to present considerations as to why he or she was an appropriate candidate for parole. Greenholtz, 442 U.S. at 16, 99 S.Ct. 2100.

¶44 This Court applied Allen and Greenholtz in Sage v. Gamble, 929 P.2d at 825. In Sage, 929 P.2d at 823, the petitioner was convicted of a crime committed in 1982 and became eligible for parole in 1993. The Board of Pardons did not allow the petitioner to appear before it and denied him parole. Sage, 929 P.2d at 823. The petitioner filed a writ of habeas corpus, arguing that he had a due process right to appear at his parole hearing personally. Sage, 929 P.2d at 823. The district court agreed and granted his writ. On appeal, this Court determined that under Allen, 482 U.S. at 377, 107 S.Ct. 2415, the petitioner did have a liberty interest in parole. Sage, 929 P.2d at 825. Further, we inferred from Greenholtz, 442 U.S. at 15-16, 99 S.Ct. 2100, that due process requires the Board of Pardons to allow parolees to appear before it personally to verify or refute the accuracy of the Board’s records and to present any special considerations showing that the parolee is an appropriate candidate for parole. Sage, 929 P.2d at 825-26.

¶45 Those Inmates entitled to due process protection argue that to ensure the accuracy of the Board of Par dons’records, aright to which they are entitled under Sage, they must have access to their files. However, no precedent of the United States Supreme Court or of this Court leads us to conclude that the due process clause of either the U.S. or Montana constitutions require that Inmates be allowed to inspect the specific information contained in the Board of Pardons’ files. Rather, the purpose of the procedure approved in Greenholtz, 442 U.S. at 16, 99 S.Ct. 2100, is to give the parolee an opportunity to verify that it is his or her file that the parole board has before it. The United States Supreme Court noted:

[W]e find nothing in due process concepts as they have thus far evolved that requires the Parole Board to specify the particular “evidence” in the inmate’s file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release.

Greenholtz, 442 U.S. at 15, 99 S.Ct. 2100.

¶46 Further, in Sage, 929 P.2d at 826, we held that a parolee must be given a personal appearance before the Board of Pardons not to give the parolee an opportunity to examine and refute evidence in the Board’s files, but rather to give the parolee an opportunity to speak on his or her own behalf and to ensure that the Board is reviewing the proper file. Therefore, we hold that due process does not require that the Inmates be allowed to review the contents of their parole files.

¶47 Based on the foregoing, we affirm the District Court’s dismissal of the Inmates’ claim that the Board of Pardons violated their due process rights.

¶48 Reversed in part, affirmed in part, and remanded for further proceedings.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, HUNT and TRIEWEILER, and DISTRICT COURT JUDGE McLEAN, sitting for Justice Regnier, concur.