author: JUSTICE BARZ

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KEVIN NEWMAN, Defendant and Appellant.
    No. 89-158.
    Submitted on Briefs Feb. 25, 1990.
    Decided April 9, 1990.
    790 P.2d 971.

      Antonia P. Marra, Bell & Marra, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Ted. O. Lympus, Flathead County Atty., Kalispell, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Kevin Newman appeals his conviction of sexual assault, § 45-5-502, MCA, and sexual intercourse without consent, § 45-5-503, MCA, in the District Court for the Eleventh Judicial District, Flathead County. We affirm.

The charges against defendant stem from allegations made by J.G., the seven-year-old daughter of his girlfriend. The precise nature of the relationship between defendant and J.G.’s mother (mother) and her children is unclear. The defendant stayed at mother’s residence on a sporadic basis. Defendant and mother also had an infant child, C.G. J.G. and her brother, B.G., age eight, were required to obey defendant and were disciplined by him, but were never encouraged to think of him as a father figure. The children’s father (father) had remarried. J.G. told her stepmother that defendant forced her to watch pornographic movies with him. During a telephone call to her stepmother, J.G. asked to come stay at her father’s house. Prior to this incident, father and stepmother had considered instituting an action to modify residential custody of the children. Both father and stepmother testified as to their concern about the children’s living conditions, including defendant’s presence in mother’s home.

The day after J.G.’s phone call, father and stepmother contacted Flathead County Sheriff’s Department detective Maxine Lamb. Father and stepmother related their concerns about the children’s general welfare, including what they knew of defendant’s behavior toward J.G. Lamb recommended they contact Ann Anderson, a social worker for the Montana Department of Family Services. Anderson interviewed both J.G. and B.G. but did not disclose the details of the interview to father or stepmother. It was only after J.G.’s interview with Lamb that father and stepmother were made aware of J.G.’s disclosures regarding defendant’s sexual contact with her.

Over the course of several months, during conversations with her stepmother, counselors and the prosecutor, J.G. was able to relate the details of defendant’s assaults upon her. At the trial she testified as follows:

“Q. Do you remember telling your stepmother . . . about some movies?

“A. Yes.

“Q. What were the movies that you told her about?

“A. They were about bad people with their clothes off.

“Q. Boys and girls?

“A. Yes.

“Q. And they didn’t have any clothes on?

“A. No.

“Q. What were they doing?

“A. They were, like, doing the same thing [defendant] was doing to me.

“Q. What was that?

“A. Well, he put his finger in my private part and then he put his penis in my butt.

“Q. [D]id you ever see [defendant] touch his private part?

“A. Yes.

“Q. What did he do?

“A. He was shaking it up and down.

“Q. With his hand?

“A. Uh-huh.

“Q. What would happen?

“A. Water would come out most of the time.

“Q. What did the water look like?

“A. It was white.

“Q. What would he do after the water came out?

“A. Well, most of the time he would just — he would get a towel.

“Q. And do what with the towel.

“A. He would wipe it off.

“Q. Did he ever make you shake his private part up and down?

“A. Yes.

“Q. What would happen.

“A. Water would come out.

“Q. Did he ever put his private part anywhere else?

“A. In my mouth.

“Q. Can you tell us what you had to do?

“A. I can’t remember. I just had to keep it in my mouth.

“Q. What did he do when it was in your mouth?

“A. He was moving it up and down.

Q. When you were watching these movies . . . did it appear like any of the people in the movies didn’t like what was happening to them?

“A. I didn’t like what was happening to them.

“Q. When you and [your stepmother] were crying and you finally told her about the movies, why did you tell her?

“A. Because I wanted him to stop.

“Q. Why did you tell Maxine Lamb about the sexual abuse? Why did you tell Maxine what he did to you?

“A. Because I wanted him to go to jail, because I didn’t want him to do it to anybody else.

“Q. Who were you thinking about when you were concerned [about] him doing it to anybody else?

“A. My sister.

“Q. [C.G.]?

“A. (Witness nods head)

“Q. Were you afraid that he might do it to her?

“A. (Witness nods head)

“Q. Are you afraid of [defendant]?

“A. (Witness nods head)

Defendant was charged by information with sexual intercourse without consent in violation of § 45-5-503, MCA. The District Court later granted the State leave to amend the information and further charge defendant with sexual assault in violation of § 45- 5-502, MCA. Defendant’s pre-trial motions included a request that the District Court qualify J.G. as a witness and a motion to exclude as hearsay testimony by certain witnesses regarding J.G.’s statements concerning defendant’s assault upon her. The District Court denied the latter motion reserving the opportunity to rule on specific testimony at trial. Subsequent to a hearing held during the course of trial, the trial court found J.G. competent to testify. The jury found defendant guilty of both charges against him and the District Court imposed two twenty year sentences, both with ten years suspended and to be served concurrently.

Defendant raises four issues on appeal:

1) Did the District Court erroneously permit the State to rebut testimony given by defendant on cross-examination?

2) Did the District Court err in finding the seven-year-old victim competent to testify?

3) Did testimony given by various witnesses fall within a statutory exception to the hearsay rule prohibiting the same?

4) Did improper remarks made by the prosecution prejudice defendant thus preventing a fair trial?

Defendant first contends the District Court erred in permitting the State to rebut defendant’s testimony elicited on cross-examination. Defendant testified on cross-exam that he was a normal heterosexual male with no interest in anal sex, child pornography or sexual contact with children. Over objection, defendant’s ex-wife testified on rebuttal that during the course of their marriage he had encouraged her to engage in anal sex with him and that she had seen him become sexually aroused by a pornographic movie depicting a father having sex with his pre-teenage daughter. Defendant contends this was testimony of specific conduct inadmissible pursuant to Rules 608 and 404(b), M.R.Evid. Furthermore, defendant argues the State failed to give notice of character testimony as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Defendant concludes the erroneous admission of this testimony warrant's reversal.

The State correctly observes that counsel for defendant did not object to these questions and defendant thus put his credibility at issue by his testimony. The facts of this case are analogous to State v. Norris (1984), 212 Mont. 427, 689 P.2d 243. Norris was charged with two counts of sexual intercourse without consent stemming from an incident involving a teen-age babysitter. Norris, 689 P.2d at 244. Norris allegedly assaulted the young woman after luring' her to his motel room with the promise of a babysitting job then indiicing her to consume alcohol. Norris, 689 P.2d at 244.

In response to the prosecution’s question on cross-exam, Lynn Norris testified her husband had never coaxed women to enter into prostitution. Norris, 689 P.2d at 246. The District Court properly allowed rebuttal testimony by Norris’s cellmate from a previous incarceration as to statements made by Norris regarding his practice of encouraging women to consume illegal drugs and then forcing them into prostitution. Norris, 689 P.2d at 245. In that case, as in this, the State properly presented testimony rebutting statements made by a witness. Furthermore, “[t]he Just substantive requirements for admissibility of ‘other crimes or acts’ evidence do not apply to rebuttal evidence offered under Rule 404(a)(1).” State v. Anderson (1984), 211 Mont. 272, 292, 686 P.2d 193, 204. We hold the District Court properly admitted the ex-wife’s testimony as rebuttal of defendant’s statements on cross-examination.

Defendant’s second specification of error concerns the lower court’s determination that J.G. was competent to testify. Defendant contends that because J.G. did not know where she lived, how long she had lived there, specific dates upon which the sexual abuse had taken place or even a time frame within which the assaults had occurred, she was not competent to testify.

Rule 601(b), M.R.Evid., provides that:

“A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or (2) the witness is incapable of understanding the duty of a witness to tell the truth.”

The District Court in this case questioned J.G. extensively regarding her understanding of her obligation to testify truthfully. It is within the sound discretion of the District Court to ascertain the competency of a witness. State v. Howie (1987), 228 Mont. 497, 503, 744 P.2d 156, 159. “We have stated that what is important is the capacity to remember the occurrence and the ability of the witness to relate her impressions of what occurred.” State v. Eiler (1988), [234 Mont. 38,] 762 P.2d 210, 213. The child’s inability to remember her address or specific dates did not render her incapable of testifying as to instances of sexual abuse by defendant. Any inconsistencies within her testimony or possible fabrication would affect J.G.’s credibility not her competency. Eiler, 762 P.2d at 213-14. The jury determines the weight given witness testimony in light of that person’s credibility. Eiler, 762 P.2d at 214. The District Court properly found J.G. competent to testify.

Defendant specifies as error the District Court’s admission, over objection, of testimony defendant contends was inadmissible hearsay. We note that the District Court repeatedly admonished the jury that certain statements, particularly those made by J.G. to other witnesses concerning defendant’s sexual abuse of her, were not admitted for the truth of the statement made, but as evidence that the statements were made at a certain point in time. The first group of statements under contention were descriptions by J.G. of the activities in which defendant compelled her to participate. J.G.’s stepmother, therapist Carol Lee, Ann Anderson, law enforcement officer Maxine Lamb and Dr. Pamela Oehrtman all testified that J.G. described to them the sexual abuse defendant inflicted upon her.

Rule 801(c), M.R.Evid., provides that:

“Hearsay is 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.”

However, pursuant to Rule 801(d)(1), M.R.Evid.:

“A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with his testimony and is offered to rebut an express or implied charge against him of subsequent fabrication, improper influence or motive ...”

We hold this group of statements is not hearsay according to Rule 801(d)(1).

Our recent holding in State v. Hibbs (1989), [239 Mont. 308,] 780 P.2d 182, is analogous to the instant case. The issue in Hibbs concerned the admissibility of out-of-court statements made by four children regarding the sexual abuse inflicted on them by. Hibbs. Hibbs, 780 P.2d at 185. We found those statements admissible pursuant to Rule 801(d)(1), M.R.Evid., noting that the out-of-court statements were introduced into evidence after the victims testified, and that the defendant repeatedly attacked the credibility of the victims as witnesses. Hibbs, 780 P.2d at 185. Similarly, defendant in the case at hand questioned J.G.’s credibility by repeatedly referring to her possible motives for falsely accusing defendant.

A linchpin of defendant’s defense below and his argument before this Court is that the allegations by J.G. were merely one element of her father’s campaign to gain residential custody of J.G. and her brother. Defendant made express references to the custody dispute between J.G.’s parents. Defendant also implied that J.G.’s gradual recollection and increased ability to relate the details of his contact with her were symptomatic of her induced fabrication of these allegations. J.G. testified at the trial, was subject to cross-examination and her statements to others were introduced to counter defendant’s charge that J.G. fabricated her allegations against him. The District Court properly permitted rebuttal of defendant’s assault on J.G.’s credibility by admission of her prior consistent statements.

Counsel for defendant further objected to the following testimony by father:

“Q. And the concerns that you had in the summer of ‘87 were what?

“A. [B.G.] was pretty much a straight-F student. He didn’t care. He was real hyper and everything. I went to school with him once on a parent-teacher’s conference, and the teacher told me, with me there, that it was like —

“Instead of doing his work, he would lay down on the floor and roll around and be a complete pest in his class. I was told after I went in on the first parentrteacher conference that, and I gave some advice to [B.G.] on it right there.”

The District Court allowed this testimony over objection as reflective of the witness’ state of mind. As noted above, counsel for defendant repeatedly alleged that her father induced J.G. to fabricate her charges against defendant so that father and stepmother could prevail against mother in an action to modify residential custody. Thus, defendant brought into issue father’s motive for seeking a change in custody. The above testimony reveals father’s state of mind. As such, father’s testimony is admissible as an exception to the hearsay rule pursuant to Rule 803(3), M.R.Evid.

Nurse Karen Skonard testified J.G. related the details of defendant’s assaults upon her. Skonard gave expert testimony regarding J.G.’s demeanor as compared with that of a typical sexual assault victim. Skonard’s diagnosis was based in part upon these statements by J.G. and was thus admissible as an exception to the rule excluding hearsay pursuant to Rule 803(4), M.R.Evid.

Defendant further contends Lorraine Pierce’s testimony regarding mother’s statement that defendant would babysit her children was inadmissible hearsay. We disagree.

Mother testified as follows:

“Q. During this period of time, were there occasions when you would leave [B.G.] and [J.G.] along [sic] with [defendant]?

“A. When [defendant] was in my home it was when he was with the guy that he worked with and —

“Q. Not always, though?

“A. Not always, no¡ If I ever did leave the home, it was just to go to, like, Circle K and be right back home, because he didn’t babysit. He wasn’t a babysitter. He wasn’t my babysitter.

“Q. But he did babysit for you on occasion?

“A. Just if I went to Circle K and back.

“Q. How many times did he babysit for you? Do you know?

“A. Not very often, because I took the kids wherever I went. I always take the kids wherever I go.”

The District Court admitted over defendant’s objection the following testimony by mother’s neighbor Lorraine Pierce:

“Q. Do you recall at that time a time when you were at her house during the summer of ‘87 and the subject of babysitting came up?

“A. Uh-huh.

“Q. In what context did that come up?

“A. I was over there one afternoon and she said something about that she was going to go play bingo with, I believe, [defendant’s] sister, . . . And [J.G.] came over to me and asked me if she could go home with me.

“Q. [J.G.] asked you?

“A. Yes. She practically was begging . . . [me] to take her home with me.

“Q. Was that something she did often?

“A. She liked to come down to our house. We live on a farm, and she liked coming out there. But this seemed a little bit more than the usual times she would ask to come out.

“Q. What did you tell her?

“A. I told her I was busy and I couldn’t have her out that night.

“Q. What did [mother] have to say at that time?

“A. She said that she didn’t need a babysitter, that [defendant] had offered to watch the children that night.

“Q. And what was [J.G.’s] reaction to that?

“A. She looked very terrified. She looked like she wanted to start to cry and ran into her room and slammed the door.”

Mother’s statement to Pierce was clearly inconsistent with her testimony at trial that defendant never babysat the children for longer than the few moments it took her to run to the corner store. The District Court properly admitted Lorraine Pierce’s testimony of mother’s prior inconsistent statement pursuant to Rule 801(d)(1), M.R.Evid.

Defendant’s final specification of error concerns statements made by the prosecutor and a State witness which defendant argues constitute substantial prejudice requiring reversal of his conviction. Defendant maintains Maxine Lamb’s response on cross-exam to the following questions prejudiced him in the eyes of the jury:

“Q. Now, did you take any steps to safeguard the fact that [J.G.] may have been creating this story? What steps do you normally take when you interview somebody?

“A. Are you asking about the investigative procedure?

“Q. Right.

“A. Certainly. I felt in this case, Pat, that in my opinion, it warranted getting a warrant for the arrest of [defendant] for these charges, particularly after the interview, after the affect, the indicators from [J.G.]. And then running a criminal history on (defendant], seeing the violence in his background.”

The District Court sustained counsel for defendant’s objection to Lamb’s testimony as being non-responsive and inappropriate. Defendant maintains such testimony caused him substantial prejudice. However, mother previously testified without objection to one incident of domestic violence admitted by defendant and to which the police responded.

Defendant further contends the prosecutor’s interjection in the following exchange prejudiced him:

“Q. [By defense counsel] So when did you claim that [defendant] was watching this movie, child pornography?

“A. I can’t tell you the exact date. It was when we were married.

“Q. Ten years ago?

“A. No. Probably mid-marriage.

“Q. Where did this movie come from?

“A. It came from a video store, I think one of the sex shops.

“Q. Didn’t you know that these movies, you cannot get them locally?

“[THE STATE’S COUNSEL]: Your Honor, I am not too sure that is true.

“THE COURT: I am not sure that is true, either.”

“It has long been the law of this state that prejudice in a criminal case will not be presumed, but must appear from the denial or invasion of a substantial right from which the law imputes prejudice.” State v. Miller (1988), 231 Mont. 497, 506-07, 757 P.2d 1275, 1281. Defendant in this case failed to demonstrate denial or invasion of a substantial right. The jury had sufficient evidence upon which to determine defendant’s guilt. We find no reasonable possibility that these comments contributed to defendant’s conviction. State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE BARZ JUSTICE SHEEHY,

license: Public Domain

text:
    RHONDA L. BLASKOVICH and Mark Blaskovich, Plaintiffs and Appellants, v. NOREAST DEVELOPMENT CORP., d/b/a Cottonwood Inn, Defendant and Respondent.
    No. 89-117.
    Submitted Nov. 2, 1990.
    Decided April 10, 1990.
    790 P.2d 977.

      Edward G. Beaudette, David M. McLean argued, Knight, Dahood, McLean & Everett, Anaconda, for plaintiffs and appellants.
    Matthew W. Knierim argued, Glasgow, |or defendant and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Plaintiffs, Rhonda L. and Mark Blaskovich, brought this action against defendant Noreast Development Corp., d/b/a Cottonwood Inn, to recover damages for injuries incurred when Rhonda slipped and fell in the Cottonwood Inn’s parking lot. The District Court of the Seventeenth Judicial District, Valley County, granted Noreast’s motion for summary judgment. The Blaskoviches appeal. We affirm.

The following issues were raised on appeal.

1. Whether the District Court erred in granting defendant’s motion for summary judgment;

2. whether a property owner is liable for injuries sustained by an individual who slips and falls as a result of natural accumulations of snow and ice located on the property owner’s premises;

3. whether the District Court erred by not striking defendant’s supplemental affidavits that were filed after the submission of the motion for summary judgment.

On February 12, 1986, Rhonda L. Blaskovich and her husband, Mark, attended a mid-morning meeting at the Cottonwood Inn. The Cottonwood Inn, owned and operated by Noreast Development Corp., is a motel, restaurant and convention center located in Glasgow, Montana. The inn is surrounded by a sidewalk and a paved asphalt parking lot which are also owned by Noreast. At approximately 11:30 a.m., the meeting ended and the Blaskoviches left the inn. As Rhonda stepped off the sidewalk and onto the parking lot she slipped and fell, fracturing her leg in four places.

February 12, 1986 — the day of the accident — was a cold and clear day. At the time of the accident, no pavement was showing through the snowpacked parking lot and a light dusting of snow covered the snowpack. On January 17, 1986, approximately four weeks prior to the accident, the parking lot had been sanded and on January 31, 1986, the parking lot had been plowed. The climatological report from the weather bureau indicated that 1.3 inches of snow fell in the area between January 31, 1986 and February 12, 1986, the day of the accident. The lot was plowed again on February 16, 1986, four days after the accident and a small amount of snow was removed.

The Blaskoviches brought this action against Noreast, alleging negligence in the maintenance of its parking lot. Rhonda sought damages that resulted from her physical injuries and Mark sought damages for loss of consortium. Noreast filed a motion for summary judgment. The District Court granted summary judgment in favor of Noreast. The Blaskoviches appeal, raising three issues.

The first issue this Court will address on appeal is whether the District Court erred in granting Noreast’s motion for summary judgment.

Summary judgment is appropriate when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The burden first rests with the party moving for summary judgment to demonstrate that a genuine issue of material fact does not exist. Once this is established, the burden shifts to the party opposing the motion to demonstrate otherwise. Rule 56(e), M.R.Civ.P.; State Med. Oxygen and Supply, Inc. v. American Med. Oxygen Co. (Mont. 1989), [240 Mont. 70,] 782 P.2d 1272, 1275, 46 St.Rep. 1951, 1955; Rumph v. Dale Edwards, Inc. (1979), 183 Mont. 359, 365-66, 600 P.2d 163, 167. In addition to establishing that no genuine issue of material fact exists, the moving party must also establish that it is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

The facts are undisputed that February 12, 1986, was a clear and cold day; that at approximately 11:30 a.m. on February 12, 1986 the Blaskoviches were leaving the Cottonwood Inn when Rhonda Blaskovich slipped and fell on the inn’s parking lot, fracturing her leg; that 1.3 inches of snow fell from the last time the lot was plowed until the day of the accident; and that the manager of the inn examined areas of the parking lot, but not the precise area where Rhonda fell. In light of these undisputed facts, Noreast met its burden under Rule 56(c), M.R.Civ.P., in demonstrating that a genuine issue of material fact did not exist. The burden then shifted to the Blaskoviches to demonstrate otherwise. Rule 56(e), M.R.Civ.P., specifically provides that an adverse party to a motion for summary judgment

“may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

The Blaskoviches’ argument merely reiterates the facts that Noreast did not plow or sand the parking lot during the twelve days preceding Rhonda’s accident and that the inn’s manager did not examine the precise area where Rhonda fell. As already stated, these facts are undisputed.

In addition to establishing that no genuine issue of material fact exists, Noreast must also establish that they are entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In the present case, the District Court relied upon Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921 and Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509, as the applicable law in this case. In particular, the court relied upon the holding in Luebeck which stated that when “danger created by the elements such as the forming of ice and the falling of snow are universally known, or as here, actually known, there is no liability.” Luebeck, 152 Mont. at 93, 446 P.2d at 924. The District Court then found that Noreast met its burden in establishing that no genuine issue of material fact existed; that the Blaskoviches failed to meet their burden of demonstrating that a genuine issue of material fact did exist; and that as a matter of law, Noreast was entitled to summary judgment.

We affirm the District Court’s determination that Noreast was entitled to summary judgment as a matter of law, however, we do so on different grounds. In asserting that Noreast was negligent, the Blaskoviches must establish that Noreast had a duty to the Blaskoviches, that Noreast breached that duty, that Rhonda sustained damages, and that her damages or injury were proximately caused by Noreast’s breach of its duty. Clark v. Norris (1987), 226 Mont. 43, 48, 734 P.2d 182, 185.

As previously stated, the facts pertaining to this case are undisputed. Rhonda stepped off the sidewalk and onto the inn’s parking lot where she slipped and fell, fracturing her leg in four places. However, the mere happenstance of an accident does not impute negligence. Clark, 288 Mont. at 48, 734 P.2d at 185. Noreast clearly has a duty to its patrons — such as the Blaskoviches — to use ordinary care in maintaining its premises in a reasonably safe condition or to warn the Blaskoviches of any hidden or lurking dangers. Luebeck, 152 Mont. at 90, 446 P.2d 922-23. The Blaskoviches must also demonstrate that Noreast breached that duty, that they suffered injury as a result of that breach and that the injury was proximately caused by the breach. The Blaskoviches failed to establish that Noreast breached its duty of exercising ordinary care in maintaining its premises in a reasonably safe condition and that this breach was the proximate cause of Rhonda’s injury. The Blaskoviches are not expected to bring in all their evidence at this juncture, however, as already stated, they cannot rely upon the fact that Rhonda slipped and fell to establish two elements of their case. As Rule 56(e), M.R.Civ.P., clearly provides, the Blaskoviches may not rest upon their pleading, but must set forth an affidavit or other specific facts showing that a genuine issue for trial exists. The Blaskoviches failed to follow this mandate of Rule 56(e), M.R.Civ.P. Therefore, in light of the present set of facts, we must affirm the District Court’s decision to grant Noreast’s motion for summary judgment.

The second issue raised on appeal is whether a property owner is liable for injuries sustained by an individual who slips and falls as a result of natural accumulation of snow and ice located on the property owner’s premises.

In light of the disposition of the first issue, this Court does not need to address this question.

The last issue raised on appeal is whether the District Court erred by not striking Noreast’s supplemental affidavits that were filed after the submission of the motion for summary judgment.

Noreast filed its motion for summary judgment on October 28, 1988. On January 16, 1989, the motion was submitted to the court. On January 26, 1989, the District Court issued its order granting Noreast’s motion for summary judgment. On the same day — January 26, 1989 — Noreast filed supplemental affidavits in support of its motion for summary judgment. The Blaskoviches argue that the supplemental affidavits “tainted” the record in favor of Noreast and that the District Court should have granted their motion to strike and remove the supplemental affidavits at that time. We disagree.

Rule 56(e), M.R.Civ.P., addresses supporting and opposing affidavits in regards to a motion for summary judgment. In particular, this rule provides that a “court may permit affidavits to be supplemented or opposed by . . . further affidavits.” Rule 56(e), M.R.Civ.P. In light of this rule, the District Court did not err by denying the Blaskoviches’ motion to strike and remove the supplemental affidavits.

Affirmed.

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

JUSTICE SHEEHY,

dissenting:

By this Opinion, the majority demonstrate once again their inability to appreciate that, where a jury trial has been demanded, the jury, and not the District Court nor this Court, should determine whether the landowner acted reasonably to avoid physical harm to persons foreseeably coming upon the premises.

There can be no quarrel with the majority that the facts as developed so far are undisputed. The quarrel lies in the assumption by the majority that on the undisputed facts, no duty of care arose from the landowner to Rhonda. The District Court likewise relied on Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 446 P.2d 921, and Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509, to reach that assumption. The majority have ignored the issue of law raised by the plaintiffs in this case without discussing the movement of this Court away from the decisions in Luebeck and Cereck.

In fact, the majority have ignored a portion of the Cereck decision that should have raised a flag here as to the duty of the property owner:

“A property owner may be held liable for falls on accumulations of ice and snow where the hazard created by the natural accumulation is increased or a new hazard is created by an affirmative act of the property owner; even where such a condition is actually known or obvious, a property owner may be held liable if he should have anticipated that injuries would result from the dangerous condition.’’ (Emphasis added.)

637 P.2d at 511.

Justice Morrison, in Cereck, concurring specially, stated:

“The majority opinion confines property owner liability for natural accumulation of ice and snow to those situations where the property owner has increased or changed the hazard through some affirmative act. I would adopt § 343A.(1) Restatement (Second) of Torts (1965) which provides as follows:

“ ‘A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’

“Admittedly, the Restatement rule is applicable to invitees. However, though I would not recognize status in ‘land possessor’s liability,’ I feel the rule to be applicable to facts such as those at bar.”

637 P.2d at 512.

The concurring opinion of Justice Morrison further stated:

“In my opinion, the restrictive ratio decidendi of this case is inadequate to meet situations such as failure to plow. If the parking lot in question had not been maintained in any fashion, and snow were allowed to accumulate so that customers were required to wade through knee deep snow, no duty would be owed by the possessor under the rule adopted by the majority. Those who do nothing incur no liability. Those who plow their parking lots are exposed.

“I believe such a restrictive duty does not adequately recognize the responsibilities owed by the business community, does not adequately protect a public dependent upon the services provided by that community, and does not promote sound public policy.

“For the foregoing reasons, I concur in the result, but would adopt different legal principles to sustain the same outcome.”

637 P.2d at 512.

In Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315, this Court adopted § 343A(1) Restatement (Second) of Torts (1965) saying:

“In the case at bar, the relationship between appellant and respondent was one of invitor-invitee. The duty owed to a business invitee is to exercise ordinary care to have the premises reasonably safe and to warn the invitee of any hidden or lurking dangers. (Citing cases.) Section 343A(1) Restatement (Second) of Torts (1965) provides:

“ ‘A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.’ ”

683 P.2d 1317.

In Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, this Court reversed a summary judgment in favor of the Town of Whitehall where the plaintiff stumbled over a public sidewalk where the concrete was raised and the raised portion was obvious. Writing for the majority, Justice Harrison stated:

“We agree with the District Court that § 343A(1) is applicable to the facts of this case, but we find the lower court disregarded some critical language found in the provision. The last part of the provision states:

“ . . unless the possessor should anticipate the harm despite such knowledge or obviousness.’

“Justice Morrison in his specially concurring opinion in Kronen succinctly explained the effect of this last part of § 343A(1):

“ ‘[A] duty may be owed though the condition is open and obvious if the landowner has reason to believe that despite the open and obvious nature of the condition, that injuries will nevertheless result.’ ”

Kronen, 683 P.2d at 1318.

“We find that although the condition of the sidewalk was known and obvious to Kaiser, a question of fact still remains as to whether or not the Town of Whitehall should have anticipated that someone (i.e. Kaiser) would be injured as a result of the defective condition of the sidewalk. The record shows the cracked and broken condition of the sidewalk had persisted for some time and that it was indeed a hazard to passing pedestrians. At the very least, a jury question is raised as to whether the Town of Whitehall should have anticipated the harm resulting from the sidewalk’s condition. Therefore, summary judgment is not appropriate.”

718 P.2d at 1343-44.

Under the undisputed facts of the case now before us, the landowner neither plowed nor sanded the icy parking lot for at least 12 days, and made no inspection of the premises to ascertain any danger to the patrons on the parking lot. Is it not a jury question that he should have anticipated the harm that occurred to Rhonda? Did the landowner in the circumstances manage his properties in the exercise of ordinary care?

Rhonda, coming upon the premises to attend a mid-morning meeting in the business premises of the defendant, was an invitee. Section 343A of Restatement (Second) of Torts concerns itself with the duty of landowners owed to invitees. That status, however, is not important after our holding in Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. In Limberhand, we stated:

“. . . In Corrigan v. Janney (Mont. 1981), [192 Mont. 99,] 626 P.2d 838, 841, in construing § 27-1-701, MCA, ... we held that the statute prevented us from distinguishing between social guests and invitees in determining the liability of the landowner for injuries received. We regard the same statute as declaring the applicable law as to the duty of landowners to persons though they may be trespassers. The test is always not the status of the injured party but the exercise of ordinary care in the circumstances by the landowner. The statute provides:

“ ‘Everyone is responsible not only for the result of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.’

“Section 27-1-701, MCA.

“Although in a later case, Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 412, 637 P.2d 509, 511, we stated that the duty imposed on the property owner depends on the status of the injured party, that statement is not correct in the light of § 27-1-701, MCA, above quoted.”

706 P.2d at 496.

In Kaiser v. Town of Whitehall, above, we affirmed that the categories of invitee, licensee and trespasser are not to be regarded, and that the test is always not the status of the injured party, but the exercise of ordinary care in the circumstances by the landowner. 718 P.2d at 1343.

Because we have moved away from the categories of invitee, licensee, and trespasser, this Court should apply § 343A(1) of Restatement (Second) of Torts to the rights of any person foreseeably upon the land who is injured.

The majority opinion contains no reference to the cases subsequent to Luebeck and Cereck, and understandably so, because otherwise the majority would have to reach a different result. The majority opinion contains no reference to § 343A of Restatement (Second) of Torts, though this dissent has been before the majority since November 2, 1989. The conflict between this holding and the cases of Limberhand, Kaiser, and Kronen is not discussed or explained. The majority opinion is a pursuit of head-in-sand methodology.

In a slip and fall case, this Court should not itself slip and fall but occasionally we do. I would reverse this case and remand it for a determination by a jury as to whether under the undisputed facts a duty of care rested on the landowner to act reasonably so as to prevent physical harm to Rhonda.

JUSTICE HUNT concurs in the foregoing dissent.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LELAND NEAL LaPIER, Defendant and Appellant. STATE OF MONTANA, ex rel., LELAND NEAL LaPIER, Petitioner, v. JACK McCORMICK, Warden of Montana State Prison, Respondent.
    No. 88-194 and 88-621.
    Submitted on Briefs Feb. 1, 1990.
    Decided April 12, 1990.
    790 P.2d 983.

      Sandra K. Watts, Florence, Ariz., for defendant and appellant.
    Marc Racicot, Atty. Gen., Robert F. W. Smith, Asst. Atty. Gen., Helena, James C. Nelson, Co. Atty., Cut Bank, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Mr. LaPier appeals from his criminal convictions in the District Court of the Ninth Judicial District, Glacier County. In a jury trial, he was found guilty of aggravated burglary, aggravated kidnapping, and felony assault. Mr. LaPier was sentenced to thirty years for aggravated burglary, thirty years for aggravated kidnapping, to be served concurrently, and five years for felony assault, to be served consecutively. Mr. LaPier appeals the convictions. We affirm.

The issues are:

1. Did the District Court err in denying the defendant’s motion to dismiss the information for lack of jurisdiction?

2. Was the defendant denied his right to confront the witnesses against him?

3. Did the District Court err in denying the defendant’s motion for a continuance of trial?

4. Is the verdict inconsistent?

The incident out of which these charges arose occurred one night in August 1987. At about 10:30 p.m., the victims Richard Kurek, his ex-wife Angela, and his fiancee Shelley Boutier were watching television in Richard’s home. Leland “Yackie” Thomas visited the house for a few minutes, then left. Mr. Kurek stated at trial that he didn’t really understand why Mr. Thomas was visiting, as none of them knew him well. Following Mr. Thomas’ visit, Richard and Angela Kurek went upstairs to fix the curtains in the room where Angela was to spend the night. They had been upstairs about five minutes when the dog began to bark and Shelley began to scream.

Mr. Kurek testified at trial that as he turned to leave the bedroom Mr. LaPier came up the stairs, entered the bedroom, and asked, “Where is it?” Mr. Kurek stated that Mr. LaPier threw him on the bed and demanded to know where the $7,000 was. Richard and Angela Kurek both testified that Mr. LaPier threatened to kill Mr. Kurek and struck him with his fists, then threw Mr. Kurek to the floor and began kicking him with his heavy logger boots. Mr. Kurek testified that he had not known Mr. LaPier prior to this incident.

Angela Kurek testified that at this point, she told Mr. LaPier that she had some money in the trunk of her car parked outside, and that Mr. LaPier told her to go get the money. Angela Kurek testified that when she got to the bottom of the stairs, she saw a man holding Shelley Boutier on the floor with his knee in her back and a handful of hair.

Angela Kurek stated that when she reached her car, she noticed that no one had followed her out of the house. She got into the car. A van had been parked to block the street entrance to the cul-de-sac where the house was located. By going over a neighbor’s lawn she drove out of the cul-de-sac and went to notify the police.

Mr. Kurek testified that a second individual, later identified as Merlyn Thomas, joined Mr. LaPier in assaulting him. Mr. Kurek testified that Merlyn Thomas hit him in the head with the blade of a screwdriver, and that the two men forced him into an adjoining bedroom. He stated that Mr. LaPier continued to hit him while Merlyn Thomas stabbed him with the screwdriver. He testified that Mr. LaPier and Mr. Thomas then dragged him downstairs and outside, stating, “Let’s burn him.”

Mr. Kurek testified that he was then forced into the garage where Mr. LaPier said, “Let’s off him.” Mr. Kurek testified he later was able to get free and escape to a neighbor’s house. Mr. Kurek stated that he noticed Angela Kurek’s car and a police car coming up the street. Angela Kurek testified that as she approached the house she saw two men run off. Shelley Boutier came out of a bathroom where she had been hiding.

Mr. LaPier, Leland Thomas and Merlyn Thomas were arrested the next day. Because they are members of the Blackfeet Tribe, the Thomases were tried in federal court. Mr. LaPier was tried in state court.

I

Did the District Court err in denying the defendant’s motion to dismiss the information for lack of jurisdiction?

Prior to trial, on October 15, 1987, Mr. LaPier moved to dismiss the information based on lack of jurisdiction. Be contended he was an Indian and that state courts lacked jurisdiction to prosecute a criminal offense committed by an Indian within the exterior boundaries of an Indian reservation. The District Court denied this motion. Mr. LaPier’s direct appeal of the criminal convictions raised the jurisdictional issue. Mr. LaPier also presented this Court with a petition for habeas corpus raising the same issue. The direct appeal and petition for habeas corpus were consolidated and held in abeyance and the District Court was ordered to hold an evidentiary hearing in regard to Mr. LaPier’s status as an Indian. Following this hearing, the District Court entered lengthy findings of fact and conclusions of law, concluding that Mr. LaPier was not an Indian for purposes of criminal offenses and that the state court had jurisdiction to prosecute. For appellate review, the parties have re-briefed the jurisdictional issue subsequent to the hearing.

Jurisdiction to prosecute criminal offenses committed on an Indian reservation is shared by three sovereign entities, depending on the nature of the crime and whether the defendant and the victim are Indian or non-Indian. Clinton, Criminal Jurisdiction over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz. L.Rev. 503, 504-05, (1976). A tribal court has jurisdiction if both the defendant and the victim are Indian and the crime is not one listed in 18 U.S.C. § 1153. United States v. Antelope (1977), 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701. Federal courts have jurisdiction pursuant to several statutes, such as the Major Crimes Act, 18 U.S.C. § 1153.

Generally, state courts lack jurisdiction to prosecute an offense committed within the exterior boundaries of an Indian reservation where the defendant is an Indian, or where the victim is an Indian. State v. Greenwalt (1983), 204 Mont. 196, 663 P.2d 1178. The State of Montana does have jurisdiction to prosecute criminal offenses committed within the exterior boundaries of the reservation if neither the defendant nor the victim is Indian. United States v. McBratney (1881), 104 U.S. 621, 26 L.Ed. 869; Draper v. United States (1896), 164 U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419; New York ex rel. Ray v. Martin (1946), 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261; United States v. Wheeler (1978), 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303; Antelope. In the present case, the offenses occurred within the exterior boundaries of the Blackfeet Indian Reservation. The victim was non-Indian. Thus the jurisdictional issue turns on whether Mr. LaPier is an “Indian” for purposes of criminal jurisdiction.

Congress has not defined “Indian” as it is used in the statutes governing criminal jurisdiction, and no precise formula exists for determining Indian status. St.Cloud v. United States (D.S.D. 1988), 702 F.Supp. 1456; Clinton, p. 515. Federal jurisdiction over Indians is premised upon their special status as wards of the federal government. State ex rel. Irvine v. District Court (1951), 125 Mont. 398, 404, 239 P.2d 272, 275-76. If one who is Indian by race becomes “emancipated in some manner, as, for example, by severing tribal relations and taking on civilized habits,” the status may terminate. People v. Carmen (Cal. 1954), 273 P.2d 521, 525; State v. Attebery (Ariz. 1974), 519 P.2d 53, 54-55; Clinton, p. 517.

The test suggested in United States v. Rogers (1846), 45 U.S. (4 How.) 567, 11 L.Ed. 1105, has been frequently cited in determining Indian status. This test is two-pronged: 1) the defendant must have a significant amount of Indian blood, and 2) the defendant must have federal or tribal recognition as an Indian. United States v. Dodge (8th Cir. 1976), 538 F.2d 770, 786, cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977). Attebery, 519 P.2d at 54; F. Cohen, Handbook of Federal Indian Law 24 (1982). The second prong of this test, recognition as an Indian, has also been stated as “a sufficient non-racial link to a formerly sovereign people.” St.Cloud, 702 F.Supp. at 1461. The St.Cloud court elaborated upon the second prong of the Rogers test, as follows:

“This Court nonetheless has gleaned from case law several factors to evaluate whether a person satisfies the second prong of Rogers. In declining order of importance, these factors are: 1) enrollment in a tribe; 2) government recognition formally and informally through providing the person assistance reserved only to Indians; 3) enjoying benefits of tribal affiliation; and 4) social recognition as an Indian through living on a reservation and participating in Indian social life. These factors do not establish a precise formula for determining who is an Indian. Rather, they merely guide the analysis of whether a person is recognized as an Indian.”

St.Cloud, 702 F.Supp. at 1461.

We expressly adopt the foregoing test.

The evidentiary hearing in the present case was held March 31, 1989. Mr. LaPier testified at this hearing in addition to numerous other witnesses. The testimony and exhibits established the following facts relevant to Mr. LaPier’s status. First, Mr. LaPier is not an enrolled member of any tribe. He possesses 165/512 of Indian blood derived from the Little Shell Band of Landless Chippewa Indians of Montana, and the Turtle Mountain Band of Chippewas. Mr. LaPier is “affiliated” with these tribes. The people comprising these tribes are referred to as Pembinas. Mr. LaPier is a Pembina descendant.

The Little Shell Band of Landless Chippewas is not a federally recognized tribe; however they have a petition for federal recognition pending with the Bureau of Indian Affairs. The Turtle Mountain Band is a federally recognized tribe. Both tribes have an enrolled membership. Mr. LaPier is not eligible for membership in the Turtle Mountain Band and trial testimony was conflicting as to whether he would be eligible for membership in the Little Shell Band. Mr. La-Pier’s mother is an enrolled member of the Little Shell Band of Chippewas. Mr. LaPier’s father is a non-Indian. Mr. LaPier had not applied for enrollment in either tribe at the date of the hearing.

Mr. LaPier was raised in Great Falls and Billings, Montana, and attended public schools. He spent some summers in Browning, Montana, on an Indian reservation. He also lived in Browning his last year of high school. Mr. LaPier attended Haskell Junior College in Lawrence, Kansas, which is an Indian college sponsored by the Bureau of Indian Affairs (BIA). Haskell admits persons of one-fourth or more Indian blood and the federal government pays the student’s educational expenses.

Mr. LaPier received some educational benefits from' the Great Falls Native American Center, and on a few occasions he received medical assistance from the Indian Health Services at Rocky Boy Reservation. As a Pembina descendant, Mr. LaPier received $1700 from a judgment received by the Pembinas on a claim against the federal government.

Mr. LaPier has been prosecuted in tribal courts for criminal offenses, and was also prosecuted as an Indian in Montana federal court for the offense of theft.

Mr. LaPier has been employed on an all-Indian fire fighting crew, and has occasionally played basketball on all-Indian basketball teams. Socially, Mr. LaPier counts among his friends both Indians and non-Indians. He has occasionally attended Browning Indian Days, and has attended Indian “give aways.”

Applying the Rogers test to the facts of the present case, it is apparent that Mr. LaPier has a significant amount of Indian blood, and the State does not dispute this. Other courts have found similar percentages of Indian blood to satisfy the first prong of the Rogers test. Cf, St.Cloud, 702 F.Supp. at 1460 (15/32 of Indian blood satisfied requirement); Goforth v. State (Okla.Crim.App. 1982), 644 P.2d 114, 116 (slightly less than one-quarter Indian blood satisfied requirement); Makah Indian Tribe v. Clallam County (Wash. 1968), 440 P.2d 442 (one-fourth Indian blood satisfied requirement).

In analyzing the second prong of the Rogers test, we adopt the factors utilized by the St.Cloud court. Applying these factors to the present case, we note that Mr. LaPier is not an enrolled member of any tribe and has not applied for enrollment. However, the fact that Mr. LaPier is not enrolled in any tribe may not be determinative of Indian status. Ex. Parte Pero (7th Cir. 1938), 99 F.2d 28, cert. denied, 306 U.S. 643, 59 S.Ct. 581, 83 L.Ed. 1043, (1939); United States v. Broncheau (9th Cir. 1979), 597 F.2d 1260, cert. denied, 444 U.S. 859, 100 S.Ct. 123, 62 L.Ed.2d 80 (1979); United States v. Indian Boy X (9th Cir. 1977), 565 F.2d 585, cert. denied, 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139, (1978), United States v. Ives (9th Cir. 1974), 504 F.2d 935, vacated on other grounds, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975). Mr. LaPier’s lack of enrollment is, however, a significant factor which must be considered.

Of the two tribes with which Mr. LaPier is affiliated, he is not eligible for enrollment in the tribe which is federally recognized, the Turtle Mountain tribe. Mr. LaPier is possibly eligible for enrollment in the Landless Chippewa tribe; however, this tribe is not federally recognized. Thus, Mr. LaPier has no federal recognition as an Indian and no trust relationship with the federal government.

We note that Mr. LaPier has received some government assistance as an Indian. He attended a BIA-sponsored college, and received some educational assistance through the Native American program in the Great Falls Public Schools. He has also received some health benefits through Indian health services, although these services were not reserved solely for Indians. The money judgment received by Mr. LaPier from the federal government was simply a result of his Pembina descendancy and adds nothing to our analysis. Neither is it significant to the present issue that Mr. LaPier was treated as an Indian in federal court.

Mr. LaPier spent a few summers and his last year of high school on the Blackfeet Reservation, however, he has lived most of his life off the reservation. Although Mr. LaPier has on a few occasions attended tribal events, and was part of an all-Indian fire crew and basketball team, these activities alone do not clothe Mr. LaPier with Indian status. The evidence demonstrates that Mr. LaPier’s tribal affiliation and social recognition as an Indian is tenuous at best. Overall, the record reveals an integration into non-Indian society, and an absence of cultural identity as an Indian. Mr. LaPier has failed to demonstrate a sufficient non-racial link identifying him as an Indian. Using the St.Cloud factors to guide our analysis, we conclude that the second prong of the Rogers test has not been met.

Mr. LaPier relies on St.Cloud to support his claim that he is an Indian under the second prong of the Rogers test. In St.Cloud the defendant was indicted in federal court on counts of rape and sodomy. St.Cloud contended that the federal court lacked jurisdiction to prosecute him, urging that he was not an Indian. St.Cloud was virtually a full-blooded Native American, enrolled in the Ponca tribe. He was recognized as an Indian, lived as an Indian, and was not integrated into non-Indian society. He had participated in tribal alcohol treatment and counseling programs and had occasionally benefited from Indian health care. Considering just these factors, the court concluded that under the Rogers test, St.Cloud was an Indian. The court stated that “[generally, an ethnic Indian with ties to a tribe like St. Cloud comes within the group of individuals to whom the Government bears a special fiduciary responsibility.” St.Cloud, 702 F.Supp. at 1462. The court ultimately held however, that St.Cloud was subject to state jurisdiction, stating:

“However, because St.Cloud was an enrolled member of the Ponca tribe at termination, the Ponca termination statute ended the federal trust relationship with St.Cloud and explicitly exposed St.Cloud to state law as is any other state citizen.”

St.Cloud, 702 F.Supp. at 1466.

Mr. LaPier contends that the facts in St.Cloud, which attributed Indian status to that defendant, are analogous to the facts in the present case. Mr. LaPier misunderstands the cultural identity requirement. The St.Cloud court determined that the defendant in that case had achieved social recognition as an Indian, stating:

“St.Cloud is socially recognized as an Indian. He lives on the Lower Brule Indian Reservation in federally provided housing, is a member of the Indian community, and participates in Indian social life. St. Cloud identifies himself as an Indian, and is not at all integrated into non-Indian society.”

St.Cloud, 702 F.Supp. at 1462. The present case is easily distinguishable since the facts of St.Cloud indicating Indian status are lacking in the present case.

We hold that Mr. LaPier is not an Indian for purposes of criminal jurisdiction. We affirm the District Court’s denial of the motion to dismiss based on lack of jurisdiction.

II

Was defendant denied his right to confront the witnesses against him?

Mr. LaPier presents two bases for his asserted denial of the right of confrontation. First, he contends the information filed against him was based on information given by Leland Thomas, whom he was unable to confront as a witness. The affidavit filed by the county attorney in support of a motion for leave to file an information contained a lengthy statement of allegations, over four pages in length. In these allegations the county attorney referred to a statement made by Leland Thomas. Both Leland Thomas and Merlyn Thomas were charged in federal court for their alleged involvement in the assault on Richard Kurek. At Mr. LaPier’s trial Mr. Leland Thomas and Mr. Merlyn Thomas invoked their Fifth Amendment right against self-incriroination.

Mr. LaPier relies on Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, as authority that he was denied a right of confrontation. In Pointer a witness testified at a preliminary hearing but was not cross-examined. The witness was unavailable at trial and the transcript of the preliminary hearing was introduced as evidence. On appeal, the United States Supreme Court held that this was a denial of the right of confrontation. Pointer is not analogous to the present case. The affidavit in support of the motion to file an information was not used as part of the evidence to convict Mr. La-Pier, and presents no basis for his asserted denial of the right of confrontation.

As a second basis for his asserted denial of the right of confrontation, Mr. LaPier contends that the two Thomas brothers should have been compelled to testify at his trial. The record, however, fails to demonstrate that Mr. LaPier raised this issue at District Court. We will not address on appeal an issue not raised at District Court. State v. Howie (1987), 228 Mont. 497, 500, 744 P.2d 156, 158. Mr. LaPier has presented no basis for his asserted denial of the right of confrontation. We conclude he was not denied this constitutional right.

Ill

Did the District Court err in denying the defendant’s motion for a continuance of trial?

Trial in this case was set for October 26, 1987. Five days before trial Mr. LaPier moved for a continuance. The motion was denied; however, the District Court appointed co-counsel to assist with the trial. Mr. LaPier contends this denial prejudiced him in presenting his defense.

The District Court may order a continuance if the interests of justice so require; however, a motion of this type is addressed to the discretion of the trial court taking into consideration the diligence of the movant. Section 46-13-202, MCA; Sloan v. State (Mont. 1989), [236 Mont. 100,] 768 P.2d 1365, 1369, 46 St.Rep. 214, 218. On appeal this Court determines if the district court abused its discretion in denying the continuance. State v. Walker (1987), 225 Mont. 415, 419, 733 P.2d 352, 355.

Mr. LaPier contends the continuance should have been granted to allow his special investigator more time to investigate. Mr. LaPier also contends that had his trial been postponed, the Thomas brothers would have concluded their cases in federal court and could have been subpoenaed to testify without the problem of self-incrimination. Mr. LaPier did not present this latter contention to the District Court in his motion for a continuance. On appeal, Mr. LaPier may not change the basis of his motion. State v. Sunday (1980), 187 Mont. 292, 302, 609 P.2d 1188, 1195. We therefore will not address his contention in regard to the Thomas brothers.

The State opposed the continuance, noting that the request was not timely; that Mr. LaPier had possessed nearly all relevant discovery since September 1st, 1987; that Mr. LaPier had not been diligent in trial preparation; and that a postponement would inconvenience many witnesses. Mr. LaPier has failed to present facts to this Court demonstrating any prejudice which would deny him a fair trial. We conclude that the District Court did not abuse its discretion in denying the motion. We affirm the District Court’s denial of the motion for a continuance.

IV

Is the verdict inconsistent?

The jury returned a verdict finding Mr. LaPier guilty of aggravated burglary, aggravated kidnapping, and felony assault. To the charges of robbery and theft, the jury found Mr. LaPier not guilty.

Mr. LaPier contends that it was inconsistent for the jury to find him not guilty of robbery, yet guilty of aggravated burglary and guilty of aggravated kidnapping. He refers to Jury Instruction No. 16, which instructed the jury that in order to convict Mr. LaPier of aggravated burglary, it must find that Mr. LaPier entered the victim’s residence with the purpose to commit robbery, and that in the course of committing the robbery he knowingly or purposely inflicted bodily injury upon Richard Kurek. He also refers to Jury Instruction No. 21, which instructed the jury that in order to find Mr. LaPier guilty of aggravated kidnapping, it must find that Mr. La-Pier restrained the victim with the purpose to commit robbery. Mr. LaPier contends that since the jury found him not guilty of robbery, it could not consistently find him guilty of aggravated burglary and aggravated kidnapping.

The jury instructions enumerated the statutory requirements for the offense aggravated kidnapping pursuant to § 45-5-303(1)(b), MCA, and for the offense of aggravated burglary, pursuant to § 45-6-204(2) (b), MCA. Mr. LaPier does not contend that the jury was incorrectly instructed. The Jury Instructions Nos. 16 and 21 contained the statutory requirement that Mr. LaPier have a purpose to commit a certain offense, in this case, robbery. Under these instructions the jury was only required to find the defendant had the purpose to commit a robbery, but was not required to find a robbery was committed. While Instruction No. 16 required the jury to find that in the course of committing a robbery defendant inflicted bodily injury upon the victim, this instruction does not necessitate a jury finding that defendant completed the robbery. We conclude that the verdict is not inconsistent and that there is no merit to Mr. LaPier’s contention.

Affirmed.

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


text:
    SHERMAN P. HAWKINS, Petitioner, v. STATE OF MONTANA, Respondent.
    No. 89-601.
    Decided April 18, 1990.
    790 P.2d 990.

      Sherman P. Hawkins, pro se.
   ORDER AND OPINION

This is a petition for post-conviction relief from Hawkins’s April 1988 conviction of criminal possession of dangerous drugs and misdemeanor escape and his October 1988 conviction of felony assault. Hawkins appears pro se. He has filed an extensive petition, to which the Attorney General, on behalf of the State, has responded. Hawkins also filed a response to the State’s response, followed by a motion to deny the State’s motion to dismiss, with supporting memorandum.

The facts underlying these convictions were discussed fully in this Court’s opinion on direct appeal of this matter. State v. Hawkins (Mont. 1989), [239 Mont. 404,] 781 P.2d 259, 46 St.Rep. 1786. While Hawkins asserts that, in its brief, the State misrepresents the facts, we note that the facts set forth by the State are supported in the record of trial before the District Court.

We will discuss the issues now raised as grounds for post-conviction relief in the following order:

1. Whether issues determined by this Court on direct appeal are res judicata.

2. Whether Hawkins was denied due process of law by the retroactive application of State v. Burke (Mont. 1988), [235 Mont. 165,] 766 P.2d 254, 45 St.Rep. 2278.

3. Whether Hawkins was unlawfully convicted of felony possession of marijuana when the information charged only a misdemeanor offense.

4. Whether Hawkins was denied his right to a fair trial by virtue of the prosecutor’s opening statement.

5. Whether Hawkins was denied effective assistance of counsel either at trial or on appeal.

I

Are the issues now raised which were also considered by this Court on direct appeal barred by the doctrine of res judicata?

Hawkins raises a number of issues in this proceeding which represent claims also raised by his counsel on direct appeal. Although Hawkins now makes some new arguments under some of these issues, the basic claims are the same as those raised in his appeal. Res judicata bars reconsideration in a post-conviction relief proceeding of claims previously raised and considered on direct appeal, Petition of Martin (Mont. 1989), [240 Mont. 418,] 787 P.2d 746, 46 St.Rep. 2213, 2214, and also bars reconsideration of additional arguments raised as to claims previously ruled upon. State v. Perry (1988), 232 Mont. 455, 464-65, 758 P.2d 268, 273-74.

In this petition, Hawkins claims that he was improperly sentenced as a persistent felony offender and improperly designated a dangerous offender. He claims that his October 1988 conviction is invalid under the former prosecution statutes, §§ 46-11-502 and -503, MCA. He argues that the search of his vehicle was invalid for a number of reasons. These claims were raised on direct appeal, considered by the Court, and rejected. Hawkins, 781 P.2d at 261-63. We conclude that these claims are barred from reconsideration, under the doctrine of res judicata.

II

Was Hawkins denied due process of law by the retroactive application of State v. Burke (Mont. 1988), [235 Mont. 165,] 766 P.2d 254, 45 St.Rep. 254?

In Burke, this Court followed the United States Supreme Court’s lead in Griffin v. Wisconsin (1987), 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709, holding that a warrantless search of a probationer’s home by the probation officer does not violate the Fourth Amendment. Hawkins argues that because the search in this case occurred before Griffin and Burke were decided, those cases cannot be applied. In this Court’s opinion on direct appeal, Hawkins, 781 P.2d at 263, we ruled that Burke was controlling.

If the court’s decision in Burke affected only procedural, and not substantial rights, Hawkins’s due process rights were not violated by application of the decision to his case. Dobbert v. Florida (1977), 432 U.S. 282, 293-94, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344, 356. We conclude that such is the case. The decision changed an evidentiary rule about searches of a probationer’s home without a warrant. It abolished the warrant requirement in such cases and held that such searches need not be individually supervised by a parole officer. Burke, 766 P.2d at 257. We hold that Hawkins was not denied due process by application of the rule from Burke to his case.

Ill

Was Hawkins unlawfully convicted of felony possession of marijuana when the information charged only a misdemeanor offense?

Hawkins asserts that because the information filed against him referred to § 45-9-102(2), MCA, it charged him with misdemeanor, instead of felony, possession of marijuana. He argues that his conviction of felony possession was a denial of due process.

The information filed against Hawkins gave him clear notice that he was charged with felony possession of marijuana. It included “COUNT III:. CRIMINAL POSSESSION OF DANGEROUS DRUGS (FELONY).” It stated that Hawkins was charged with possession of marijuana “in an amount exceeding 60 grams in weight, to wit: 590 grams.” It is true that subsection (2) of § 45-9-102, MCA, which defines the crime of misdemeanor possession of dangerous drugs, was cited in the information. However, that subsection also describes the cutoff amount (60 grams) between a misdemeanor and a felony. We hold that Hawkins was not denied due process by the reference to § 45-9-102(2), MCA, in the information.

IV

Was Hawkins denied his right to a fair trial by virtue of the prosecutor’s opening statement?

In her opening statement in Hawkins’s second trial, the deputy county attorney referred to mental damages suffered by the victim of Hawkins’s assault. No evidence was offered on the subject of those mental damages. Hawkins argues that mentioning them in the opening statement was prejudicial to him.

At trial, Hawkins and his counsel disagreed on whether a motion for mistrial should be made on this ground. Hawkins wished to so move. The court deemed a motion to have been made pro se and denied it.

The record shows that while the prosecution intended at the beginning of trial to offer evidence about the victim’s mental damages, the parties agreed mid-trial that this evidence would not be introduced because of discovery problems relating to it. It has not been shown that the prosecuting attorney lacked good faith in making her opening remarks.

A ruling on a motion for mistrial will only be disturbed if it was clearly erroneous. State v. Dawson (1988), 233 Mont. 345, 761 P.2d 352, 358, 45 St.Rep. 1542, 1549. Under the circumstances here, the District Court’s denial of Hawkins’s motion for a mistrial was not clearly erroneous. We conclude that Hawkins’s claim is without merit.

V

Was Hawkins denied effective assistance of counsel either at trial or on appeal?

An appellate court measures a claim of ineffective assistance of counsel under the standard of whether the defendant has shown specific acts or omissions by his attorney which prejudiced his case and resulted in the denial of a fair trial. State v. Stewart (Mont. 1988), [235 Mont. 239,] 767 P.2d 296, 297, 45 St.Rep. 2350, 2352. The defendant must show not only that counsel’s performance was deficient, but also that counsel made errors so serious that counsel was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution. Stewart, 767 P.2d at 297.

Hawkins raises several specific acts or omissions as grounds for his claim of ineffective assistance of counsel. The first is his attorney’s failure to make a motion to dismiss on the grounds that he was denied his right to a speedy trial.

This Court will look to four factors in determining whether a person’s right to speedy trial has been violated: 1) length of the delay, 2) reason for the delay, 3) assertion of the right by defendant,' and 4) prejudice to the defendant. State v. Forsyth (1988), 233 Mont. 389, 397, 761 P.2d 363, 369.

The actual length of delay is the trigger to a speedy trial inquiry. State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 958. In the present case, some 390 days passed between the filing of the informátion against Hawkins and his first trial. That period is sufficient to trigger a speedy trial inquiry. State v. Waters (1987), 228 Mont. 490, 493, 743 P.2d 617, 619.

In this case, trial was originally set for July 20, 1987. That date was vacated and reset to November 16, 1987, because of Hawkins’s motion for a psychological examination, the results of which were filed November 4, 1987. Hawkins argues that he did not want the examination and that his counsel was the one who requested it. However, Hawkins was represented by counsel at the time the motion was made, and he continued to be represented by the same counsel through his appeal to this Court. He will not now be heard to complain that his counsel’s motions were not his. A defendant adequately represented by counsel has no right to represent himself. State v. Brown (1987), 228 Mont. 209, 213, 741 P.2d 428, 431.

The November 16, 1987, trial date was vacated so that the court could hear a motion to suppress by defense counsel. After the court heard and ruled upon that motion on March 10, 1988, trial was reset to begin April 13, 1988. (The date was later moved up one day, to April 12, 1988.) In the intervening month, Hawkins filed in this Court a petition for a writ of supervisory control, moving for a continuance in District Court. The motion for a continuance was denied, this Court denied the petition for supervisory control, and trial commenced on April 12, 1988.

Of the 390 days between the filing of the information against Hawkins and his first trial, we conclude that 263 days are attributable to Hawkins (120 days for the psychological examination plus 122 days for the motion to suppress plus 21 days for the supervisory control proceeding), which leaves 127 days chargeable to the State. Most of that time represents institutional delays inherent in calendaring the case.

Examining the other two factors in a speedy trial analysis, we conclude that Hawkins asserted his right to speedy trial in a timely manner but that the evidence of prejudice from the delay in this case is minimal. Hawkins has not alleged any undue anxiety or concern because of the delay, his custodial status was unaffected by the delay because his furlough from a prison sentence for a previous crime had been revoked, and he has not identified any prejudice to the defense of his case because of the delay. We hold that Hawkins was not denied his right to a speedy trial as to his first trial.

The jury hung on the charge of assault in Hawkins’s first trial. Hawkins was convicted of that offense in a second trial commencing October 11, 1988. He argues that he was denied his right to speedy trial as to that conviction as well.

A total of 175 days elapsed between Hawkins’s first and second trials. While the State contends that this is not enough time to trigger a speedy trial inquiry, it also notes that the reason for much (35 days) of the delay was the unavailability of a key witness, the victim of Hawkins’s assault. Again, Hawkins asserted his right to speedy trial in a timely manner, but he has not demonstrated any unusual prejudice to himself as a result of the delay. We conclude that Hawkins’s right to speedy trial was not violated by the delay between his first and second trials.

Hawkins also asserts that he received ineffective assistance of counsel because his attorney failed to object to the State’s evidence at trial that a high-speed chase had ensued when Billings police first followed Hawkins in the events leading to the charges against him. He maintains that no high-speed chase occurred.

Hawkins is referring to the pursuing officer’s testimony that Hawkins sped up to between 80 and 85 miles per hour after the officer began following him. Hawkins himself took the stand and testified on this subject. It related to the cause for his arrest. Hawkins has not shown that this testimony was in any way improper.

Hawkins next argues that his counsel provided him with ineffective assistance by failing to introduce evidence that would have altered the outcome of the trial. This claim is made because the attorney did not introduce evidence that Frances Kunz was still married to Hawkins at the time of these events and that she perjured herself by testifying otherwise. Also, Hawkins argues that his attorney should have presented evidence of a conspiracy against him by Frances Kunz and Lavon Bretz.

The affidavit of Hawkins’s trial attorney, prepared in response to this petition, is helpful on this issue. In that affidavit, counsel states that, as a tactical matter, he chose to de-emphasize the triangular romantic relationship between Hawkins, Kunz, and Bretz. Counsel stated that he concluded it would be best to avoid anything that might lead to introduction of evidence of Hawkins’s earlier conviction of killing his first wife. This Court has stated that it will not find ineffective assistance of counsel based on a matter of trial tactics which did not result in prejudice to the defendant. State v. Stewart (Mont. 1988), [235 Mont. 239,] 767 P.2d 296, 298, 45 St.Rep. 2350, 2353. We conclude that counsel’s decision on this matter was a matter of trial tactics which has not been shown to result in prejudice to Hawkins.

Hawkins asserts that his trial attorney rendered ineffective assistance of counsel because he failed to object to evidence regarding the police stop of Hawkins, his arrest, and their search of him. He bases this claim on Payton v. New York (1980), 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639.

Payton stands for the proposition that routine felony arrests may not be made inside the arrestee’s home without a warrant. Hawkins disagrees with the State as to whether, at the time he was arrested, he was a resident of the house outside of which he was arrested. At any rate, according to the officers’ testimony at the suppression hearing, the arrest was made in the driveway. The evidence thus indicates that this arrest was outside the protective realm of Payton. We hold that defense counsel did not render ineffective assistance by failing to object to the stop, search, and arrest as a violation of the rule in Payton.

Hawkins maintains that his attorney rendered ineffective assistance because he did not object that the prison furlough contract Hawkins was under was not signed by the State. As the State points out, this is untrue. Hawkins’s counsel did object on these grounds, in connection with a motion to suppress. The court rejected the argument.

Hawkins argues that his attorney should have objected to the evidence found in the search of the pickup truck he was driving, because the truck belonged to a third party. However, if the pickup belonged to a third party, Hawkins would have no standing to object to the search. His counsel’s affidavit indicates that counsel was satisfied that Hawkins was exercising sufficient control over the truck so that it could be said to be in Hawkins’s possession.

Failure to demand a hearing on the presentence report is the next ground for Hawkins’s claim of ineffective assistance of counsel. Hawkins states that he objected to the report in its entirety.

The transcript of Hawkins’s first sentencing hearing shows that his attorney objected to a number of points in the presentence investigation report. At the end of those objections, counsel asked Hawkins if he had stated all of their objections. Hawkins replied,”Yes, it is. I believe so.” Hawkins has not come forth with additional specific objections to the report. The objections that he wished to make were heard at his sentencing hearing. We conclude that he has not shown that he was afforded ineffective assistance of counsel in this regard.

Finally, Hawkins argues that his trial attorney filed an inadequate appeal which was below acceptable standards. After reviewing the merits of the issues raised in this petition, we disagree. It is not necessary that counsel raise every colorable issue on appeal. Jones v. Barnes (1983), 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14, 77 L.Ed.2d 987, 992-95. Hawkins’s counsel raised on appeal those issues most worthy of this Court’s consideration and argued them well.

CONCLUSION

Hawkins has not established any ground upon which he is entitled to post-conviction relief from the judgments of the district court.

THEREFORE, IT IS ORDERED the motion of the State to dismiss the petition for post-conviction relief is granted and the same is hereby dismissed.

DATED this 18th day of April, 1990.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/R.C. McDonough, Justice

s/John C. Sheehy, Justice

s/William E. Hunt, Sr., Justice

s/Fred J. Weber, Justice

s/Diane G. Barz, Justice


text:
    The ASSOCIATION OF UNIT OWNERS OF DEER LODGE CONDOMINIUM, INC., A Montana corporation, Plaintiffs, Appellants and Respondents, and the Board of Directors of the Association of Unit Owners of Deer Lodge Condominium, Inc., Plaintiff and Respondent, v. BIG SKY OF MONTANA, INC., et al., Defendants. APPEAL OF PAGE WELLCOME, P.S.C., a nonparty affected by determination of the District Court.
    No. 89-502.
    Submitted on Briefs Jan. 25, 1990.
    Decided April 9, 1990.
    Rehearing Denied May 8, 1990.
    790 P.2d 967.

      Page Wellcome, Wellcome, Frost & Bartlett, Bozeman, pro se.
    Max Hansen, Dillon, for appellant.
    J. Robert Planalp, Landoe, Brown, Planalp & Kommers, Bozeman, Michael J. Lilly, Bozeman, Patrick G. Frank, Missoula, for respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

This class action was the subject of an approved settlement on July 18, 1988, by the District Court for the Fifth Judicial District, Madison County. After a hearing on August 5, 1988, the District Court made its Order fixing attorney fees. Upon motion by the Association of Unit Owners of Deer Lodge Condominium (Association) on June 1, 1989, the District Court reduced the original award of attorney fees. Page Wellcome appeals such reduction in his fees. We affirm.

The sole issue for our consideration is whether the District Court erred in reducing Mr. Wellcome’s attorney fees?

This case was previously before this Court when it was ordered to proceed as a class action with the Association and its Board of Directors acting as representatives. See State ex rel. Boyne USA, Inc. v. District Court (1987), 228 Mont. 314, 742 P.2d 464. After an adjustment by the District Court, the plaintiffs’ Class received, by way of cash and other property, in excess of six million dollars. A series of settlement hearings were held on the Boyne case culminating in an August 5, 1988 hearing on the issue of attorney fees to be paid to Mr. Wellcome. Mr. Wellcome was represented by associates of his firm at the hearing.

On August 5, 1988, the District Court ordered attorney fees to be paid as follows:

“[T]he attorneys will receive TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($200,000.00) of the cash settlement proceeds from the initial cash payment. An additional sum of TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($200,000.00) shall be paid' from the first sale proceeds when the real property owned by the members of the class and the Deer Lodge Condominium Association or any part thereof is sold by the association. In addition to the foregoing the attorneys shall have an interest equal to TWENTY-FIVE PERCENT (25%) (one-fourth) of the sale price of the real property which percentage shall be applied to the sale price of all real property less the TWO HUNDRED (sic) AND 00/ 100 DOLLARS ($200,000.00) previously paid from the land sale proceeds. Such percentage amount shall then be reduced by any real estate commission paid on behalf of the association to a Montana licensed real estate agent in connection with such sale, the amount or percentage of which commission shall be agreed to (by the attorneys) prior to the real estate listing. If no licensed real estate agent is paid by the association then the TWENTY-FIVE PERCENT (25%) (one-fourth) of the land sale proceeds shall not be reduced and shall be paid in full to the attorneys.

“In addition to the foregoing, the attorneys shall also receive the automobile credit attributable to the two (2) bedroom unit owned by the association.

“The initial TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($200,000.00) payment as hereinabove specified shall be paid to the attorneys for the class on August 12, 1988.

“The balance of the attorneys’ fees in the additional amount of TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($200,000.00) together with the TWENTY-FIVE PERCENT (25%) (one-fourth) interest in the real property shall be paid to the attorneys when the land is sold and pending such sale the attorneys shall have a lien and charge against the real property owned by the Deer Lodge Condominium Association, and each and every condominium unit in the Deer Lodge Condominiums, in order to insure payment of such attorneys’ fees as hereinabove specified . . . .”

In September 1988, Mr. Wellcome left the country for an extended world tour. Subsequently the Association obtained new counsel. On June 1, 1989, the Association, through the Board of Directors, filed a motion with the District Court asking it to reconsider its Order granting Page Wellcome in excess of $794,748.58 in attorney fees. The motion argued that the award violated Montana law and did not take into account a substantial amount of attorney fees and costs previously paid to Mr. Wellcome; that the award was based on the court’s presumption that Mr. Wellcome would continue to represent the plaintiffs, when in fact, his representation was terminated; that notwithstanding the court’s award, Mr. Wellcome’s firm continued to charge on an hourly basis; and that the attorney fees were extreme in comparison to the benefits received by the Class members.

On June 30, 1989, after discovering that the record disclosed matters of which the Court was not previously aware, the Court entered its Order striking the contingent fee portion of the fee and reducing the cash balance still owing from $200,000 to $100,000. When Mr. Wellcome returned from his vacation, he pursued this non-party claim for his attorney fees. In its opinion and order on the Motion to Reassess, the District Court noted in its findings that the record before it disclosed matters of which it was not aware on August 5, 1988, including: (1) Mr. Wellcome had previously been paid $373,748.58 as fees and reimbursement of costs; (2) a previous attorney had been paid $135,000; (3) the value of the property received by the Class was not $1,000,000 as contemplated; but actually one-half of that sum; and (4) the court had not been advised of the existing law as to contingent fees in a class action. The court further noted that there was no evidence that these matters were misrepresented or withheld from the court. The court listed in its findings the attorney fees that had been paid to Mr. Wellcome as of June 13, 1989 as follows:

Payment fees & costs through August 5, 1988 $ 226,948.11
Payment of August 5, 1988 200,000.00
Payment by Safeco Insurance Company 146,800.47
Credit for Chrysler
Automobile 21,000.00
TOTAL $ 594,748.58

Although the court praised Mr. Wellcome’s work on this case, it concluded that the “fee as originally approved, and under the facts, some of which were unknown to the Court, was not an equitable one”, and the “funds on hand and anticipated are not sufficient to pay the approved fee.” Thus, it ordered the contingent fee portion (the percentage of the sale) stricken and reduced the cash balance of $200,000 to $100,000. Mr. Wellcome appeals the amended award. We affirm.

Did the District Court err in reducing Mr. Wellcome’s attorney fees?

Mr. Wellcome maintains that the District Court erred when it reduced his fees, arguing that the District Court’s initial Orders in 1988, awarding fees to Class counsel, after notice to the Class, were appropriately entered. He asserts that he followed the same fee agreement as Mike Coil, the counsel who originally represented the Association, which provided both an hourly rate to be paid as the litigation progressed, together with a contingent fee based upon a declining percentage scale at the conclusion of the litigation, and that such agreement was acceptable to the Association. Mr. Wellcome further contends that the District Court’s findings are not supported by the evidence and that the August 5, 1988, Order was not appealed from, and was therefore binding, based on lack of an appropriate appeal and laches.

Relying on Western Media, Inc. v. Merrick (1988), 232 Mont. 480, 757 P.2d 1308, the Association urges that an award of attorney fees consisting of both a contingency fee and an hourly rate is unreasonable, whether or not the case involves a class action.

In reducing the attorney fees to Mr. Wellcome, the District Court cited Waters v. City of Chicago (1981), 95 Ill.App.3d 919, 51 Ill.Dec. 185, 420 N.E.2d 599, for the proposition that in a class action an award of attorney fees is “contingent upon success, and upon the existence of a fund from which the fees can be paid”, and that the evaluation of settlement must be “fair, reasonable, and in the best interests of all affected.” We approve and adopt this standard for the evaluation of attorney fees in a class action.

The question of whether an attorney and client could agree to pay either an hourly rate or a contingent fee, whichever was larger, was addressed by this Court in Western Media. In Western Media, the parties agreed to payment of attorney fees of either a 40% contingent fee of any amount recovered or an hourly rate, whichever calculation results in the larger compensation to the attorney.” This Court stated:

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

“[T]he amount fixed as [contingent] attorney fees is largely discretionary with the District Court.

“Even though attorney’s compensation is provided for under § 25-10-301, MCA, which allows the amount and manner to be left to agreement, express or implied this type of clause takes away the rationality behind contingency fee contracts, (citations omitted).”

Western Media, 757 P.2d at 1310. The result under Western Media is that the clause allowing a contingent fee or an hourly rate was not approved but was disapproved.

In its conclusions of law dated' June 30, 1989, the District Court concluded that the previously approved attorney fees must in law and in equity be amended and adjusted by striking the contingent fee portion of the approved fee and reducing the cash balance from $200,000.00 to $100,000.00. The court’s rationale was contained in a memorandum which stated in part as follows:

“In the Court’s view, the contingent fee portion of the attorney fee is not only contrary to the law in class actions, it is under the facts confiscatory. The court has reviewed the applicable cases, specifically Waters v. City of Chicago, [95 Ill.App.3d 919, 51 Ill.Dec. 185, 190,] 402 N.E.2d 599, 604 (Ill.) ....

“Having made these observations, the court must consider the equities. The fee as originally approved, and under the facts, some of which were unknown to the court, was not an equitable one. The funds on hand and anticipated are not sufficient to pay the approved fee. Equity requires the ordered adjustment, e.g., striking the contingent fee and reducing the further cash payment.”

The present case has been an extremely complex and prolonged example of class litigation. This Court is not in the position to accurately evaluate the extent of the attorney services provided and the fees which are reasonable as compensation for such services. The District Court on the other hand was the court which handled the complex litigation and under this circumstance is the court peculiarly qualified to make the attorney fees determination-. We conclude that there is substantial evidence to support the findings on the part of the District Court and that the District Court properly applied the law of Montana to the determination of the fees.

We affirm the fee determination on the part of the District Court.

We note that both parties raise other issues with regard to the underlying class litigation. We conclude that the attorney fees issue is the primary issue addressed by both parties and therefore do not find it necessary to consider any of the other matters presented by the parties.

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


text:
    NELLIE B. TAYLOR, as Personal Representative of the Estate of Jack Leslie Taylor, Deceased, Plaintiff and Respondent, v. JOHN NEIL HONNERLAW, Defendant and Appellant.
    No. 89-544.
    Submitted on Briefs March 16, 1990.
    Decided April 24, 1990.
    790 P.2d 996.

      Linda Osorio St.Peter, Missoula, for defendant and appellant.
    H. James Oleson, Oleson Law Firm, Kalispell, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

John Neil Honnerlaw, defendant, appeals the decision of the District Court of the Eleventh Judicial District, Flathead County, granting plaintiff Nellie G. Taylor’s motion for summary judgment and denying Honnerlaw’s subsequent “motion for reconsideration.” We affirm.

The two essential issues raised on appeal are:

I. Whether the District Court erred in granting Nellie Taylor’s motion for summary judgment; and

2. Whether the District Court erred in denying Honnerlaw’s “motion for reconsideration.”

Jack Leslie Taylor died intestate on May 3, 1988. On May 5, 1988, Nellie G. Taylor was appointed by the District Court for the Eleventh Judicial District, Flathead County, as personal representative for the estate of Jack Leslie Taylor. On October 17, 1988, Nellie Taylor filed a complaint in the District Court, alleging that John Neil Honnerlaw “took various items ... of importance, that belonged to Jack Leslie Taylor, and now should belong to the estate.” In particular, Nellie Taylor requested the return of twelve to thirteen guns which Honnerlaw had in his possession and refused to return to the estate. Honnerlaw claimed that these guns were given to him as a gift by the now-deceased Jack Leslie Taylor.

On March 14, 1989, Nellie Taylor filed a motion for summary judgment under Rule 56, M.R.Civ.p., arguing that no issue of fact existed and that as a matter of law Jack Taylor did not give the guns to Honnerlaw as a gift. The District Court granted Nellie Taylor’s motion for summary judgment, stating that Honnerlaw failed to-submit an opposing affidavit that would raise any issue of fact. On June 16, 1989, Honnerlaw filed a “motion for reconsideration.” The District Court denied Honnerlaw’s motion on July 21, 1989.

The first issue raised on appeal is whether the District Court erred in granting Nellie Taylor’s motion for summary judgment.

This issue is not properly before this Court. The notice of entry of judgment granting summary judgment to Nellie Taylor was filed June 2, 1989. Honnerlaw had thirty days from this date to file a notice of appeal. Rule 5(a)(1), M.R.App.P. Honnerlaw’s notice of appeal, however, was not filed until August 7, 1989. We therefore do not have jurisdiction to entertain this issue on appeal.

The second issue raised on appeal is whether the District Court erred in denying Honnerlaw’s “motion for reconsideration.”

In Honnerlaw’s “motion for reconsideration,” filed June 16, 1989, Honnerlaw argues that he did not understand that he had to present affidavits to oppose the motion for summary judgment. He therefore filed an affidavit from John B. Dudis along with his June 16, 1989 motion. The affidavit stated that Jack Taylor “was desirous of making certain gifts or bequests to Mr. Honnerlaw and others, and left me with the impression that he would be doing so.” The District Court denied Honnerlaw’s June 16, 1989 motion on July 21, 1989, stating that Honnerlaw failed to submit an affidavit in support of his position and furthermore he failed to comply with the provisions of Rule 60, M.R.Civ.P., in seeking relief from a summary judgment.

A motion for reconsideration is not a post-judgment motion allowed by the Montana Rules of Civil Procedure. Anderson v. Bashey (Mont. 1990), [241 Mont. 252,] 787 P.2d 304, 305, 47 St.Rep. 200, 202. Honnerlaw based his “motion for reconsideration” on the fact that he did not understand that he had to submit an affidavit to oppose a motion for summary judgment. We are unable to equate Honnerlaw’s motion based on his lack of understanding of the Montana Rules of Civil Procedure with any post-judgment motion allowed under these rules. We therefore hold that the District Court did not err in denying Honnerlaw’s June 16, 1989 motion.

In consideration of Honnerlaw appearing pro se throughout the majority of the proceedings, however, we also note that Dudis’s affidavit is still not sufficient to prove that Jack Taylor intended to give Honnerlaw his guns. The affidavit stated that Jack Taylor “was desirous of making certain gifts or bequests to Mr. Honnerlaw and others, and left me with the impression that he would be doing so.” The affidavit therefore merely indicated that Jack Taylor would be making certain gifts or bequests, but had not yet done so. In addition, the affidavit does not state that these gifts would be the guns.

Affirmed.

JUSTICES HARRISON, HUNT, WEBER and McDONOUGH concur.