author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    MARK AHRENS and BRENDA AHRENS, Plaintiffs and Appellants, v. WILLIAM KIRK COTTLE, Defendant and Respondent.
    No. 94-506.
    Submitted on Briefs March 9, 1995.
    Decided June 15, 1995.
    52 St.Rep. 485.
    896 P.2d 1127.
    271 Mont. 339.

      For Appellants: Rienne H. McElyea, Berg, Lilly, Andriolo & Tollefsen, Bozeman.
    For Respondent: J. David Penwell, Attorney at Law, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants Mark and Brenda Ahrens appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment in favor of respondent William Kirk Cottle.

We affirm.

The issues on appeal are:

1. Did the District Court err in concluding that appellants failed to comply with the notice of default provisions contained in the parties’ contract for the sale of real property?

2. Did the District Court err in concluding that appellants waived their right to terminate their contract with respondent and regain possession of real property?

3. Did the District Court err in not awarding attorney fees to appellants?

On April 15, 1988, appellants sold a home by contract for deed to respondent for $37,000. Respondent made a $150 down payment and agreed to pay $3,600, at eight percent interest, in monthly installments of $100 commencing May 1, 1988. Respondent satisfactorily performed this portion of the contract. In addition, respondent agreed to assume the balance of appellants’ monthly payments to the mortgage lienholder, Carteret Federal Savings Bank.

Respondent failed to make the April and May 1993 payments to Carteret. As a result, on May 21,1993, appellants attempted to serve respondent with a notice of default by taping a copy of the notice to the back door of respondent’s home. On June 9, 1993, appellants personally served respondent with a notice of acceleration of the contract. On June 14,1993, respondent cured the April and May 1993 defaults. Respondent failed to make the payments for September, October, and November 1993. Appellants made these payments to Carteret without serving respondent with notice of default. In December 1993, respondent cured the September, October, and November 1993 defaults by making payment to Carteret.

Appellants filed suit on November 12, 1993, seeking to cancel the contract for deed and to reclaim possession of the property. Respondent and appellants filed motions for summary judgment. After a hearing on the motions the District Court issued its findings of fact, conclusions of law, and order granting respondent’s motion for summary judgment. As of the hearing for summary judgment, all payments were current. On August 25,1994, the District Court entered its judgment awarding attorney fees to respondent. It is from the District Court’s order granting summary judgment to respondent that appellants appeals.

ISSUE 1

Did the District Court err in concluding that appellants failed to comply with the notice provisions contained in the parties’ contract for the sale of real property?

We review conclusions of law to determine whether the district court’s interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 107, 870 P.2d 91, 93; In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619.

Paragraph 13 of the parties’ contract for deed provides that all notices shall be deemed to be properly given if delivered in writing personally or sent by registered or certified mail. The District Court concluded that appellants did not comply with the notice provisions of the contract for deed by posting the notice of default to respondent’s back door.

Appellants rely on Christensen v. Hunt (1966), 147 Mont. 484, 414 P.2d 648, Hares v. Nelson (1981), 195 Mont. 463, 637 P.2d 19, and LeClair v. Reiter (1988), 233 Mont. 332, 760 P.2d 740, to support their argument that Montana case law has consistently held that the failure to adhere to the technical requirements of notice pursuant to a contract is immaterial if an individual has knowledge of the notice. A review of Christensen, Hares, and LeClair shows that they are distinguishable from the present case.

In Christensen, the default provision in a contract for deed required that the seller send the notice of default to the address provided for in the contract. The notice of default was delivered to the buyer at an address other than the one listed in the contract. We concluded that sending the notice to the alternative address was a technical error that did not prejudice the rights of the buyer who received the notice at the address to which it was delivered.

In Hares, we affirmed the district court’s termination of a contract for deed and granted the seller possession of the property. The buyer argued that he did not receive notice of default pursuant to the terms of the contract which was to be sent by registered mail. The buyer failed to retrieve the registered letter at the post office even though he knew the letter was waiting for him.

In an action for termination of a contract for deed, the buyer in LeClair argued that the notice of default was defective because the copy of the notice he received was not dated. We concluded that the terms of the contract for deed did not require that the notice be dated in a certain way, except to specify that service by mail was complete upon deposit in a post office. The buyer acknowledged receiving the notice by certified mail and was not prejudiced by the failure to date the notice.

By contrast, appellants in the present case attempted to serve respondent by posting the notice to his back door despite the contract’s requirement of personal service or service by mail. While respondent testified that he eventually found and read the notice, he could not identify exactly how long after the notice had been posted to his back door that he discovered it.

Appellants argue that posting the notice on respondent’s back door afforded him the same notice he would have received had appellants personally delivered or mailed the notice of default. We disagree.

Posting the notice of default to respondent’s back door constituted a material, rather than a technical, flaw in service. Under the terms of the contract for deed, if the buyer fails to cure a default within 15 days after receiving notice of default, the seller has the right to give the buyer written notice of acceleration. Consequently, under the terms of the contract, a notice of acceleration is only valid if it is preceded by proper service of the notice of default which then triggers the 15 day default period. The contract is clear as to the two proper methods of service.

Appellants posted the notice of default on respondent’s back door on May 21, 1993. Had respondent been properly served on May 21, he would have had until June 5 to cure any defaults. Had the defaults remained uncured thereafter, appellants were entitled to accelerate the obligation under the contract. Believing that respondent had been properly served with notice of default, and knowing that respondent had not cured the April and May defaults within the 15 day period, appellants served respondent with notice of acceleration on June 9, 1993. However, respondent cured the April and May defaults on June 14, 1993, after discovering the notice of default posted on his back door sometime in May.

We hold that the District Court did not err in concluding that appellants failed to comply with the notice provisions contained in the parties’ contract for the sale of real property.

ISSUE 2

Did the District Court err in concluding that appellants waived their right to terminate their contract with respondent and regain possession of the property?

We apply the same standard of review to Issue 2 that we applied to Issue 1.

Respondent failed to make the September, October, and November 1993 payments to Carteret. After being so informed by Carteret, appellants made those payments to Carteret without first serving respondent with notice of default and without informing respondent that they made the late payments. In addition, appellants did not instruct Carteret to refrain from accepting further payments from respondent. In December 1993, respondent brought the contract current by making the September, October, and November payments to Carteret. As a result, Carteret received double payments for September, October, and November 1993,

The District Court concluded that:

The acceptance of a payment on a contract after the seller has declared or attempted to declare a default constitutes a waiver of the default and such waiver denies to the seller the right of the seller to sue for acceleration of the contract. Bailey v. Lilly (1983), 205 Mont. 35, 667 P.2d 933. See also Shultz [Schultz] v. Campbell (1966), 147 Mont. 439, 413 P.2d 879.
Therefore, the [appellants’] action to foreclose the contract must be dismissed because of a waiver by the [appellants] in accepting payments under the contract. The [appellants] claim that Carteret, not they, accepted the payments made by the [respondent] to Carteret and made no effort to advise Carteret that the [appellants] were attempting to terminate the contract and that Carteret was not to accept such payments.

Appellants argue that they did not waive their right to terminate the contract because they did not have the ability to direct whether Carteret accepted or retained the late payments from respondent. There is nothing in the record to show that appellants were powerless to notify Carteret not to accept further payments from respondent. However, appellants were not required under the contract to notify the bank to refrain from accepting further payments from respondent. Under the terms of the contract, appellants were required to first serve respondent with a notice of default as a precondition to serving a notice of acceleration. Appellants failed to properly serve respondent with a notice of default after the April and May defaults, and appellants failed to serve respondent with any notice of default after the September, October, and November defaults.

Similarly, we are not persuaded by appellants’ argument that waiver did not occur because Carteret, not appellants, accepted and retained respondent’s delinquent payments. The contract for deed shows that respondent agreed to make appellants’ mortgage payments directly to the mortgage lien holder, Carteret. Consequently, a mortgage payment from respondent to Carteret in satisfaction of appellants’ obligation to Carteret, is the equivalent of a payment from respondent to appellants. As a result, it is irrelevant that respondent’s delinquent payments were accepted and retained by Carteret, rather than by appellants. What is relevant is the fact that because respondent had not been served with notice of default, he made payments to Carteret in satisfaction of the underlying obligation, and those payments were accepted and retained. Any defaults that may have occurred were cured when respondent brought all payments to date.

. We hold that the District Court did not err in concluding that appellants waived their right to terminate their contract with respondent and regain possession of the property.

ISSUE 3

Did the District Court err in not awarding attorney fees to appellants?

Appellants asked for attorney fees based on the alleged defaults by respondent. However, as we have held that appellants failed to give any proper notices of default, there is no obligation to pay attorney fees under the circumstances.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion. As a result of this decision, technical form is elevated over substance, while substantial justice is avoided, and the sellers’ credit rating continues to be jeopardized because of the buyer’s failure to comply with the terms of his contract.

NOTICE COMPLIANCE

The contract for sale of real estate, which was executed by the parties, provides in paragraph 12 that when the buyer fails to make payments due under the contract within 15 days of the due date, the sellers have the right to give the buyer notice that the payment must be made within 15 days from the date of notice. If notice is given and payments are not made within 15 days, the sellers have the right to accelerate all payments called for under the terms of the contract, and the balance of the principal, along with interest then due, must be paid within 15 days from the notice of acceleration. If the balance is not paid within the provided time, the sellers have the right to terminate the contract.

Paragraph 13, as noted by the majority, requires that notice be delivered in writing personally or sent by registered or certified mail to the buyer.

In this case, notice was delivered to the buyer at his place of residence by posting it on the door to his home. The notice was dated May 21,1993, and was delivered on May 25. In the notice, Cottle was notified that he was in default by failing to make the payments that were due on April 1 and May 1,1993. He was also notified that unless he corrected the default within 15 days, that the sellers had the right to accelerate the amounts due under the contract and declare the entire balance due. Cottle understood the substance of the notice, and eventually presented it to his attorney. However, his default was not cured within 15 days from the date on which the notice was delivered. He did not make the April and May payments until June 14, 1993.

The majority makes much of the fact that Cottle may not have had actual notice 15 days before he actually cured his default. However, a reasonable inference from the facts which were proven is that Cottle did have notice more than 15 days before actual payment was made. The affidavit of the Ahrens’ process server established that the notice was posted on the door to Cottle’s home on May 25, a full 19 days before payment was made. Cottle offered no evidence to suggest that he did not observe the notice on the same day, or reasonably soon after it was posted. In fact, he admitted that he actually received the notice in May, which means that he had a minimum of 14 days’ notice before he made payment. The fact that Cottle suffered no actual prejudice from the manner in which notice was delivered is best illustrated by his own testimony, which was as follows:

Q. Okay. Can you tell me the circumstances of when you found a document at your house?
A. There was an envelope taped to my door.
Q. And would this have been in the springtime?
A. Was it May? Yeah.
Q. Did you open the envelope?
A. Yes.
Q. Okay. And do you remember what you found inside?
A. I believe there was a copy of a Notice of Default.
Q. Did you read the document?
A. Yes, I did.
Q. What did you do with the document?
A. Put it on my desk.
Q. Do you still have that document?
A. No, I do not.
Q. What happened to it?
A. I believe my attorney has it.
Q. So you gave him the document that you had?
A. Yes.
Q. So when you received the Notice of Default in May of 1993, you understood that you were in default under the terms of the contract?
A. Yes.
Q. When you received this document that was posted to your door, the Deposition Exhibit 13, were you late in your payments?
A. I don’t remember.
Q. Given what we’ve just all gone through in this sheet, which explains your payment history, Deposition Exhibit 4, doesn’t that characterize that you were late in your payments?
A. Yes.

I would conclude that since Cottle had actual knowledge of his default, and had actual receipt of the notice of default sufficiently in advance of the date on which he was required to cure the default, that the notice and default terms of the parties’ contract were substantially complied with, and that to the extent there was any technical deviation from the specific language in the contract, that deviation was in no way material nor prejudicial to Cottle. This conclusion is consistent with our prior decisions in Christensen v. Hunt (1966), 147 Mont. 484, 414 P.2d 648, and LeClair v. Reiter (1988), 233 Mont. 332, 760 P.2d 740. While it is true, as pointed out in the majority opinion, that neither of these cases have precisely the same facts as this case, the principle involved is identical. In both cases, we held that a technical deviation from the default notice requirements in a contract cannot be asserted by the buyer as a defense to termination of the contract where his or her rights have not been prejudiced. That is exactly the situation here. While Cottle did not receive written notice by registered mail, he received written notice at the same location where the registered mail would have been delivered, and he received it well in advance of the date by which he was notified that his default must be cured. Therefore, he suffered absolutely no prejudice based on the manner in which the notice was delivered.

For these reasons, I would reverse the District Court’s conclusion that as a matter of law the Ahrens are unable to terminate their contract with Cottle because of their failure to comply with the notice provisions in their contract.

WAIVER

The principles of waiver, when correctly applied, are based on principles of fairness. However, the doctrine of waiver was never intended to reduce commercial transactions to some form of the game of “gotcha.” Yet, that is exactly the effect of the majority decision.

“ “Waiver is a voluntary and intentional relinquishment of a known right, or claim or privilege.’ ” Carpenters-Employers Trust Fund v. Galleria Partnership (1989), 239 Mont. 250, 259, 780 P.2d 608, 613 (quoting Thiel v. Johnson (1985), 219 Mont. 271, 274, 711 P.2d 829, 831). Nothing that the Ahrens did even remotely resembled the intentional relinquishment of a known right.

Cottle’s late payments were not sent to, nor kept by, the Ahrens. They were sent to the Carteret Federal Savings Bank to satisfy the Ahrens’ monthly payment obligations. The Ahrens had no control over the fact that the payments were sent; they had no control over Carteret’s acceptance of the payments; they didn’t even know that the payments were made. They had no affirmative obligation under the principles of waiver to affirmatively notify Carteret that the payments would not be accepted. Furthermore, no such obligation should be imposed. The Ahrens were the obligors in the contract with Carteret. Their credit rating had already been severely damaged by Cottle’s frequent failure to make timely payments, and they should not have had to make payments for property they did not possess while they were attempting to recover it.

While the majority may assume, as it has in the past, that equity favors the avoidance of a forfeiture, the equities in this case are quite to the contrary. The hardship that this contractual relationship, and this Court’s decision, create for the Ahrens is best illustrated by the following portions of the affidavit of Brenda Ahrens submitted on August 1, 1994:

6. Mr. Cottle did not assume the Carteret Federal Savings Bank note. Since 1990, Mr. Cottle has been late in payments on 14 separate occasions. He has driven this note into foreclosure on three separate occasions.
7. I have no control over Carteret Federal Savings Bank. Carteret accepts payments without my approval or authorization. If the contract is not paid, they will automatically take the note into foreclosure proceedings.
8. Because my name is on the note, my credit has been completely destroyed by Mr. Cottle’s failure to timely make his payments.
11. In October, 1993,1 was advised that Mr. Cottle’s September, 1993, check bounced and was returned. The September, October, November, and December, 1993, payments were not made by Mr. Cottle and I was forced to pay ONE THOUSAND SEVEN HUNDRED NINETY-ONE AND 56/100 DOLLARS ($1,791.56) in order to keep the property from foreclosure ....
12. My credit has been destroyed by Mr. Cottle’s failure to make timely payments and his repeated system of driving this matter into foreclosure.

For these reasons, I conclude that there was no waiver of Cottle’s default based on any reasonable definition of that term. I would reverse the order of the District Court which granted Cottle’s motion for summary judgment, and the District Court order which denied the Ahrens’ motion for summary judgment, and I would remand to the District Court for a determination of the attorney fees to which the Ahrens are entitled in this matter.


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE MARRIAGE OF CATHARINE GAY GROUNDS, f/k/a CATHARINE GAY COWARD, Petitioner and Respondent, and HAROLD MARK COWARD, Respondent and Appellant.
    No. 94-279.
    Submitted on Briefs February 9, 1995.
    Decided June 15, 1995.
    52 St.Rep. 482.
    897 P.2d 200.
    271 Mont. 350.

      For Appellant: Timothy J. Lape, Missoula.
    For Respondent: Kerry Ann Newcomer, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

Harold Mark Coward (Mark) appeals from two post-dissolution orders of the District Court for the Fourth Judicial District, Missoula County. In those orders, the court denied Mark’s motion to modify maintenance payments and granted the motions of Catharine Gay Grounds (Catharine) to join Mark’s professional corporation as a party and to disregard the professional corporation for purposes of enforcing the judgment. We vacate the orders of the District Court, based upon failure to serve process upon the professional corporation.

The dispositive issue is whether the District Court’s orders must be vacated because of Catharine’s failure to serve the professional corporation. Because we conclude both orders must be vacated for that reason, we do not address the other issues raised in this appeal.

The parties’ marriage was dissolved by order of the District Court in March 1991. Mark, a physician, was ordered to pay Catharine maintenance of $2,150 per month for seven years, to allow her to pursue a law degree.

Mark soon fell into arrears on the maintenance payments, and Catharine’s efforts to collect through writs of execution were unsuccessful. In July 1993, Catharine obtained a 65% income withholding order for maintenance, directed to Mark’s professional corporation, Mark Coward, M.D., RC. When the corporation failed to withhold income as ordered, Catharine moved to disregard the corporate entity and to join the corporation as a party.

On March 31, 1994, the District Court held a hearing on various motions then pending before it. These included a motion by Mark to modify maintenance payments and Catharine’s motions to disregard and join the corporation.

On April 6, 1994, the court entered two orders as a result of the March 31 hearing. In one order, the court stated its opinion that Mark had committed fraud and would be held accountable for his actions. It denied Mark’s motion to modify maintenance payments and granted Catharine’s motion to disregard Mark’s professional corporation for purposes of enforcing the decree. The court stated it would allow Mark until 9:00 a.m. on May 1, 1994, to bring current his obligations to Catharine, which amounted to $80,328.90 as of April 1,1994, according to the affidavit she filed with the court. It awarded Catharine her attorney fees and costs, but did not set an amount.

In the other order, the court joined Mark’s professional corporation as a responding party in this case and declared the corporation jointly and severally liable for all of Mark’s outstanding obligations. Mark filed his notice of appeal on April 13, 1994.

Must the District Court’s April 6, 1994 orders be vacated because of Catharine’s failure to serve Mark’s professional corporation with process?

Catharine admits in her brief that Mark’s professional corporation was not served with process or an order to show cause prior to the court’s April 6, 1994 orders. She points out that Mark was the corporation’s sole shareholder and corporate president, and that, at the hearing, his counsel opposed the motion to join the corporation. She argues that a requirement of service upon the corporation would honor form over substance and should be rejected.

The nature of service of process is twofold: it serves notice to a party that litigation is pending, and it vests a court with jurisdiction. Fonk v. Ulsher (1993), 260 Mont. 379, 383, 860 P.2d 145, 147. Service of process rules are mandatory and must be strictly followed. Knowledge of the action is not a substitute for valid service. Fonk, 860 P.2d at 147.

Service upon a Montana corporation may be accomplished in several ways described in Rule 4D(2)(e), M.R.Civ.P. They include delivering a copy of the document to an officer, director, superintendent or managing or general agent, or partner, or associate for the corporation; leaving a copy at the place of business of the corporation; or delivering a copy to the corporation’s registered agent.

This Court has held that service of process was adequate to confer jurisdiction over a defendant corporation when only one copy of the documents was served upon a defendant corporate officer as both an individual and defendant corporate officer. Richland Nat’l Bank & Trust v. Swenson (1991), 249 Mont. 410, 422, 816 P.2d 1045, 1053-54. In the present case, however, no effort whatsoever was made to serve the corporation. The motion to join Mark Coward, M.D., PC., and to disregard the professional corporation was merely served by mail upon Mark’s attorney, as part of the ongoing action. We therefore conclude that Richland National does not control here.

We cannot disregard the Rules of Civil Procedure and jurisdictional prerequisites, even when faced with blatant attempts to circumvent the law by individuals such as Mark. Actual knowledge by Mark did not substitute for valid service upon his professional corporation. We hold that, without valid service, the court did not possess jurisdiction to enter orders directed to the professional corporation.

Because the District Court asserted jurisdiction over Mark Coward, M.D., PC., in both orders from which this appeal is taken, both orders are vacated. This matter is remanded to the District Court for further proceedings consistent with this Opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and HUNT concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

This case is the clearest example I have seen of a husband’s total contempt and disregard for the maintenance obligations imposed upon him by a lawful order of a district court. It is no wonder that at the conclusion of the testimony on which the District Court based its order disregarding the corporate entity, the District Judge made the following observation:

Dr. Coward, I want to make something clear to you here. I have been sitting on the bench for close to six years; prior to that I was a prosecutor for 17 years, and I have never encountered anybody who has such a total disregard and [dis]respect for other people as you do.

The appellant has used the legal process and abused the corporate fiction successfully since 1991 to avoid his maintenance obligation to his former spouse, and as of April 1,1994, was $80,328.90 in arrears on his debt to her.

By exalting form over substance, this Court’s current opinion has prolonged the tortuous procedural history which has served the appellant so well. And, to what purpose?

Mark Coward, M.D., P.C., the shell of a corporate entity in which the appellant now hides and protects his income, is nothing more than Harold Mark Coward, the individual. He is the president of the corporation; he owns all of its shares; he operates all of its business; he performs all of its services; and he makes every single decision that can be made for the corporation’s operation and existence.

Rule 4D(e), M.R.Civ.P., is not a demanding rule when it comes to service of process on corporations. It provides that service can be accomplished in various ways. Among them is service on any officer of the corporation. In this case, the document with which the majority is concerned was served on the attorney for the president of the corporation, who in turn appeared in court to oppose the relief sought in the motion. Nothing could more effectively notify the corporation’s only officer of the relief being sought than service on his attorney. Furthermore, because of the appearance of the president’s attorney, jurisdiction over the corporation was accomplished, whether or not the president was personally served. Rule 4B(2), M.R.Civ.P., provides as follows:

(2) Acquisition of jurisdiction. Jurisdiction may be acquired by our courts over any person through service of process as herein provided; or by the voluntary appearance in an action by any person either personally, or through an attorney, or through any other authorized officer, agent or employee.

(Emphasis added.)

In this case, Harold Mark Coward was the president and authorized agent for Mark Coward, M.D., P.C. He appeared in this action in response to his former spouse’s motion through his attorney. Therefore, pursuant to the specific terms of Rule 4B, the District Court had jurisdiction to enter the order that it entered. To ignore the syllogism which leads to this conclusion is to ignore reality in favor of an artificial distinction based on a corporate fiction. The District Court, after listening to the total lack of any distinction between Harold Mark Coward and his pseudo-corporation, and the length to which Coward was willing to go in order to avoid his obligation to his former spouse, refused to do so. After reviewing the record, I agree with the District Court.

For these reasons, I dissent from the majority opinion. I would affirm the orders of the District Court.


author: CHIEF JUSTICE TURNAGE

text:
    GEORGE D. TYNER, Plaintiff and Appellant, v. PARK COUNTY, CARLO CIERI, individually and as employee of Park County, JAMES HUNT, individually and as employee of Park County, and LARRY LOVELY, individually and as employee of Park County, Defendants and Respondents.
    No. 94-547.
    Submitted on Briefs April 27, 1995.
    Decided June 19, 1995.
    52 St.Rep. 507.
    897 P.2d 202.
    271 Mont. 355.

      For Appellant: Mark L. Guenther and David Barnhill, Nash, Guenther and Zimmer, Bozeman.
    For Respondents: Norman H. Grosfield, Utick & Grosfield, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

George D. Tyner (Tyner) appeals the decision of the Sixth Judicial District Court, Park County, granting defendants’ motion for a directed verdict on his civil rights claim. Tyner also appeals the jury verdict finding that he was wrongfully discharged but awarding zero damages. We affirm.

The issues are:

1. Did the District Court err in granting defendants’ motion for a directed verdict?

2. Did the jury err in awarding Tyner zero damages on his wrongful discharge claim?

Tyner went to work for the Park County Road Department in May 1990. His duties included maintenance, machinery operation, and general labor. The Road Department supervisor was Denis Brandon. Tyner successfully completed a six-month probationary period, after which he received a pay increase.

In February 1992, Tyner received a “payroll transfer,” whereby he received his pay from the Incinerator Department rather than from the Road Department. Park County officials testified that the payroll transfer was merely a cooperative, resource-sharing maneuver enabling the Incinerator Department to help pay for work done on its machinery by Tyner and other Road Department employees. Tyner testified that he believed that the payroll transfer was in fact a promotion that would result in more authority, increased pay and more direct contact with the Incinerator Department. Following the payroll transfer, Tyner continued to report to the Road Department and received his work assignments from Brandon. Tyner received an increase in pay for one month following the transfer. The raise was subsequently rescinded. Park County officials informed Tyner that the raise was not in the budget.

On December 9,1992, Tyner reported to the Road Department for work. At approximately 7:00 a.m., Brandon delivered the work assignments for the day. Tyner was assigned to hard-face grader blades. Tyner testified that he put on his coveralls, proceeded to the welding area and began preparing the grader blades for welding. As he prepared to weld, he noticed his welding face shield was dirty. He walked toward the parts room to get a towel or rag to clean the shield.

On his way to the parts room he stopped in the Road Department office and placed a call to Lawrence Oset, supervisor of the County Landfill. The previous day Tyner had worked at the landfill for Oset, welding on a new shed being built there. Tyner claimed that Oset asked him to call to determine if Oset needed him at the landfill again on December 9. Oset does not recall whether he asked Tyner to call that morning. Oset told Tyner they would not be working on the shed due to inclement weather.

Tyner testified that Brandon entered the office and told him he was not to use the telephone. Tyner left the office and proceeded to the parts room. While Tyner was in the parts room looking for a rag, Brandon came in and again confronted Tyner concerning his use of the telephone. Brandon told Tyner he was not to receive personal calls on the office phone and that the use of the phone was disruptive to the operation of the shop. Brandon stood in the only doorway to the parts room and continued to criticize Tyner’s work. Tyner stepped toward Brandon, placed his hands on Brandon’s chest and pushed him through the doorway. Brandon did not fall to the ground, but was pushed back several feet. Immediately after the push, Tyner claims Brandon stated that “this little incident will cost you your job.”

Brandon claims that he did not follow Tyner from the office to the parts room. Rather, shortly after Tyner left the office, Brandon observed he was not at the welding table and went looking for him. He found Tyner in the parts room. He asked Tyner why he had called Oset. Tyner told him he called to ask Oset if he needed him to weld at the landfill. Brandon told Tyner that he had been assigned his work order for the day and that was to perform hard-face welding on the grader blades. It was at this point Tyner pushed Brandon through the doorway.

Tyner and Brandon disagree concerning exactly how far away Tyner was when he stepped toward Brandon and the force of the push. Following the incident, Tyner requested a meeting with the County Commissioners.

Brandon called commissioners Carlo Cieri and James Hunt. The third commissioner, Larry Lovely, was not reached by telephone and only learned of the meeting upon arriving at work.

At approximately 8:00 a.m. on December 9, Brandon and Tyner met with Cieri, Hunt and Lovely. The meeting lasted approximately thirty minutes. Brandon and Tyner each told the commissioners their version of the incident. The commissioners considered Brandon’s and Tyner’s stories to be sufficiently similar to make further investigation of the incident unnecessary. Tyner admitted that, following an argument with Brandon, he pushed him through the doorway. After the meeting, Tyner and Brandon returned to work at the county shop.

Following the meeting with Brandon and Tyner, the commissioners met with the Park County Attorney for approximately thirty minutes. The county attorney informed the commissioners that discipline for pushing a superior could range from a written letter of reprimand to termination.

The county commissioners decided to terminate Tyner based on their meeting with Brandon and Tyner and their meeting with the county attorney. Tyner was terminated on December 9, the same day the pushing incident occurred. Following oral notification of termination, Tyner requested and received a written letter of termination.

Tyner filed a complaint against Park County and the commissioners individually in the Sixth Judicial District Court, Park County. The complaint alleged violation of Tyner’s civil rights in violation of 42 U.S.C § 1983 and wrongful discharge in violation of Montana’s Wrongful Discharge from Employment Act, §§ 39-2-901 through -915, MCA. At trial after Tyner’s case-in-chief, the District Court granted defendants’ motion for a directed verdict on the civil rights claim. Following trial, the jury found that Tyner had been wrongfully discharged from his employment; however, the jury went on to con-elude that Tyner suffered zero damages as a result of the wrongful termination.

Issue 1

Did the District Court err in granting defendants’ motion for a directed verdict on Tyner’s civil rights claim?

We have recently set forth our standard of review of a district court’s granting of a directed verdict as follows:

[This Court] looks to see if the evidence leads to only one conclusion. “If only one conclusion is reasonably proper, then the directed verdict is proper.” [Citations omitted.] Adirected verdict is properly granted when the “evidence is so insufficient in fact to be insufficient in law.”

Westfork Const. Co. v. Nelcon, Inc. (1994), 265 Mont. 398, 401, 877 P.2d 481, 483.

Tyner argues that the pushing incident was merely a pretext for firing him and the underlying reason for his termination stemmed from constitutionally-protected statements he had made in the past. Tyner’s civil rights claim is based on two main allegations.

First, Tyner points out that he ran for county commissioner against the incumbent commissioner James Hunt. Hunt and Tyner finished first and second out of four candidates in the primary election. Tyner, therefore, earned the right to run against Hunt in the general election. Tyner ran on a platform advocating improved county roads and increased communication between the public and the county commissioners. Hunt defeated Tyner by a wide margin. Tyner was terminated approximately one month after the general election. Tyner argues that his running against Hunt for county commissioner and the statements he made during the campaign were motivating factors in his termination.

Tyner’s second allegation stems from comments he made to commissioner Cieri concerning a sewer treatment plant in Gardiner, Montana. Tyner had observed the construction of the sewer treatment plant and specifically the settling ponds. Tyner told Cieri that he believed someone was getting paid off in connection with the job. Tyner believed that the construction was of substandard quality and was taking much longer than necessary. Tyner did not repeat these allegations to anyone but Cieri. Cieri testified that he did not recall a conversation with Tyner concerning the construction of the sewer plant. Tyner claims that his discharge was motivated by his comments to Cieri concerning the construction of the sewer plant.

The defendants deny any motivation for terminating Tyner other than his pushing Brandon. The commissioners told Tyner at their meeting that pushing a supervisor was a firing offense. The Park County Attorney concurred that the incident was sufficient grounds for termination.

To prevail on his civil rights claim, Tyner was required to prove that his constitutionally-protected speech was a substantial or motivating factor for his termination. Mt. Healthy City Board of Ed. v. Doyle (1977), 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471. In granting defendants’ motion for a directed verdict, the District Court found that Tyner had not presented any evidence that he was discharged for any reason other than pushing Brandon.

While determinations of motive are generally questions of fact reserved for the jury, when only one conclusion can reasonably be derived from the evidence presented, a directed verdict is proper. Semenza v. Leitzke (1988), 232 Mont. 15, 18, 754 P.2d 509, 511.

Tyner’s evidence consists of the fact that he ran for county commissioner against commissioner Hunt. During the campaign, he made remarks critical of the operation of Park County government. Tyner also alleges that he confronted commissioner Cieri concerning the construction of the Gardiner sewer treatment plant.

While the parties do not contest the constitutionally-protected nature of these activities, Tyner has failed to link these activities to his discharge. Tyner cites Ware v. Unified School Dist. (10th Cir. 1989), 881 F.2d 906, for the proposition that a reasonable inference can be drawn from the fact that the reasons given for the discharge are unsupported by the evidence. Tyner further argues that because the jury found that he was wrongfully discharged pursuant to Montana’s Wrongful Discharge From Employment Act, the reasons given for his discharge were unsupported by the evidence.

We disagree with Tyner’s argument. While the jury found that Tyner was discharged in violation of Montana’s Wrongful Discharge From Employment Act, such a finding does not address the motivations behind the firing. The evidence presented at trial concerning Tyner’s wrongful discharge claim focused on the procedure by which the commissioners fired Tyner, not their motivation. The evidence revealed that Park County did not have a written employment manual, Tlyner had an excellent employment record prior to December 9, and other employees received less discipline for similar conduct.

While the procedure the commissioners followed in terminating TVner came under strict scrutiny during trial, the motivating factor was clear. The commissioners, in their meeting with Tyner, in their meeting with the Park County Attorney, in their letter of termination and at trial, uniformly indicated that Tyner was discharged because he pushed Brandon. Tyner presented no evidence to link his discharge to the statements he had made. Tyner and commissioner Hunt testified that their campaign was an amicable one that Hunt easily won. Tyner presented nothing but his own speculation and conjecture to connect his campaign for county commissioner with his discharge.

Likewise, Tyner has not tied his discharge to the statements he made to commissioner Cieri concerning the Gardiner treatment plant. Cieri testified that he did not even remember the conversation taking place. Tyner testified that he did not discuss his concerns over the treatment plant with anyone else.

We hold that Tyner failed to present sufficient evidence by which a jury could conclude that Tyner’s speech was a substantial or motivating factor in his discharge. We therefore conclude that the District Court properly granted defendants’ motion for a directed verdict.

Issue 2

Did the jury err in awarding Tyner zero damages on his wrongful discharge claim?

Following trial, the jury determined that Tyner had been wrongfully discharged in violation of Montana’s Wrongful Discharge From Employment Act. The jury went on to award zero damages. Tyner argues that he is entitled to a new trial on the issue of damages because the jury verdict was not supported by substantial evidence.

In affirming an award of zero damages in a wrongful discharge case, we stated in Dawson v. Billings Gazette (1986), 223 Mont. 415, 726 P.2d 826:

The jury decides what evidence to accept and what evidence to reject.
“In considering a motion for new trial, the trial corut is not to weigh the evidence where conflicting evidence is presented. Yerkich v. Opsta (1978), 176 Mont. 272, 274, 577 P.2d 857, 859. Rather, the trial court’s discretion to grant a new trial for insufficiency of the evidence is exhausted when it finds substantial evidence to support the verdict. [Citations omitted.] Where conflicting evidence is present, it is an abuse of the trial court’s discretion to grant a new trial. [Citation omitted.] We will not substitute our view of the evidence for that of the jury where that evidence furnishes reasonable grounds for different conclusions.”

Dawson, 726 P.2d at 828-29.

Section 39-2-905, MCA, sets forth the damages available for a wrongful discharge claim as follows:

[T]he employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. ...

Defendants presented evidence of mitigating factors to offset Tyner’s damage claim. First, Tyner was unemployed for only five months, approximately four months after his discharge and an approximately one-month layoff after finding new employment. Second, Tyner turned down an employment opportunity during the period after his discharge before accepting new employment. Finally, his new employment was at a higher wage than he earned while working for Park County.

Defendants presented sufficient evidence to justify a zero damage award. We conclude that the jury verdict was supported by substantial evidence. We therefore affirm the decision of the District Court.

JUSTICES GRAY, HUNT, LEAPHART and WEBER concur.


text:
    WILLIAM J. GOLLEHON, Relator, v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF POWELL, THE HONORABLE EDWARD P. McLEAN, Presiding, Respondent.
    No. 95-250.
    Decided May 25, 1995.
    As Amended June 1, 1995.
    52 St.Rep. 447.
    897 P.2d 1058.
    271 Mont. 363.
   OPINION AND ORDER

William J. Gollehon, herein called Mr. Gollehon, has filed an Application for Writ of Supervisory Control or Other Appropriate Writ, and also his Application for Stay of Death Sentence Pending Consideration of Application for Writ of Supervisory Control. The respondent, through the office of the Attorney General, has filed its response to the application for writ of supervisory control. The applications state that the execution of the death sentence is now scheduled for June 11, 1995, at Deer Lodge, Montana.

Pursuant to the requirements of Rule 17, M.R.App.P., this Court accepts supervisory control and addresses the merits of the issues raised by Mr. Gollehon in his Petitions.

Mr. Gollehon contends that the five year time period for filing a post conviction petition as contained in § 46-21-102, MCA, controls and overrides any time periods otherwise provided. That code section provides:

46-21-102. When petition may be filed. A petition for the relief referred to in 46-21-101 may be filed at any time within 5 years of the date of the conviction.

In substance Mr. Gollehon contends that the foregoing statute creates a liberty interest which is superior to the State’s right to carry out the death sentence during the five year period within which a post conviction petition can be filed. He requests that this Court rule that Mr. Gollehon has an absolute right to consume as much of the five year period as he deems necessary in prefiling investigation and preparation of a post conviction relief petition so that the State should not be allowed to seek, nor the District Court to schedule, the execution of the death sentence during the five year period.

The State responds by referring first to § 46-19-103(1), MCA, which addresses the duty of the District Court to reset an execution date once a stay of execution has expired or been dissolved. Such statute provides:

46-19-103. Execution of death sentence. (1) In pronouncing the sentence of death, the court shall set the date of execution which must not be less than 30 days or more than 60 days from the date the sentence is pronounced. If execution has been stayed by any court and the date set for execution has passed prior to dissolution of the stay, the court in which the defendant was previously sentenced shall, upon dissolution of the stay, set a new date of execution for not less than 20 or more than 90 days from the day the date is set. The defendant is entitled to be-present in court on the day the new date of execution is set.

Under this statute, upon the dissolution of the stay, the District Court was statutorily mandated to set a new date of execution. There is no provision in the statutes which gives the District Court discretion to delay execution up to five years while the defendant contemplates or files a post conviction petition. In direct contradiction of that theory, the statute provides, “the court in which the defendant was previously sentenced shall, upon dissolution of the stay, set a new date of execution for not less than 20 or more than 90 days from the day the date is set.” This is a clear statutory mandate to set an execution date within 90 days of the date on which the new execution date is set.

The State contends that the time frame for post conviction relief as set forth in § 46-21-102, MCA, must be considered in conjunction with § 46-19-103(1), MCA, which specifically applies to capital defendants and requires a new execution date every time a stay of execution is dissolved. We emphasize there is nothing about this process which prevents Mr. Gollehon from seeking post conviction relief.-From Mr. Gollehon’s petitions and briefs, it clearly appears that he has chosen not to file any post conviction relief petition up to this point in time. We conclude that a criminal defendant does not have a constitutional right to the collateral review which is present through State post conviction procedures. See Coleman v. Thompson (1991), 501 U.S. 722, 756, 111 S.Ct. 2546, 2568, 115 L.Ed.2d 640. When considering Mr. Gollehon’s claims, we conclude that the State does have a legitimate state interest at stake which justifies the resetting of an execution date as soon as a stay is dissolved, which of course requires capital defendants to file collateral claims, such as post conviction relief claims, without delay. Mr. Gollehon has chosen not to do so in this case to the date of these Applications.

We conclude that § 46-21-102, MCA, which provides that a petition for post conviction relief “may be filed” at any time within five years of the date of conviction does not override the sentencing requirements of § 46-19-103, MCA, which require the setting of a new date of execution within 90 days from the date of hearing upon a dissolution of the stay as took place in the present case. Mr. Gollehon has failed to present statutory provisions supporting his argument and has also failed to present case authority which in any way supports his contention.

We hold that the provisions of § 46-19-103, MCA, control and that the post conviction provisions of § 46-21-102, MCA, do not override § 46-19-103. As a result, we hold that the Petition for Supervisory Control is denied on the merits and the Petition for Stay of Death Sentence also is denied on the merits.

Notice of this order shall be given by telephone to District Judge Edward P. McLean, to counsel for Mr. Gollehon and to the Attorney General for the State of Montana, and in addition written notice shall be given.

DATED this 25th day of May, 1995.

/S/J. A. TURNAGE, Chief Justice

/S/ KARLA M. GRAY, Justice

/S/ WILLIAM E. HUNT, SR., Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/JAMES C. NELSON, Justice

/S/ W. WILLIAM LEAPHART, Justice

/S/ FRED J. WEBER, Justice


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STUART STRINGER, Defendant and Appellant.
    No. 94-155.
    Submitted on Briefs January 26, 1995.
    Decided June 14, 1995.
    52 St.Rep. 473.
    897 P.2d 1063.
    271 Mont. 367.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena; Nathan J. Homes, Great Falls.

      For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Patrick L. Paul, Cascade County Attorney, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Appellant Stuart Stringer was charged by Information with one count of aggravated burglary, a felony in violation of § 45-6-204(2)(a), MCA, one count of aggravated kidnapping, a felony in violation of § 45-5-303(1)(c), MCA, and two counts of assault in violation of § 45-5-202(2)(a) and (b), MCA. A jury trial was held in the Eighth Judicial District Court, Cascade County on November 8-10, 1993. The court dismissed the aggravated burglary count at the conclusion of the State’s case-in-chief, and the jury acquitted Stringer on one of the felony assault charges. Stringer was convicted of the charges of aggravated kidnapping and one count of assault. After sentencing, the District Court entered judgment against Stringer, who appeals from this judgment. We reverse and remand.

Stringer raises four issues on appeal:

1. Whether the District Court erred in permitting testimony concerning the battered woman syndrome?
2. Whether the prosecutor engaged in misconduct?
3. Whether there was sufficient evidence to sustain the convictions?
4. Whether the District Court erred in refusing to examine a juror, or to grant relief after being informed that a juror may have concealed material information during voir dire thus raising the possibility of bias and partiality?

BACKGROUND FACTS

Stuart and Kathy Stringer had recently divorced prior to the incidents giving rise to the charges against Stuart. At the time the incidents took place, Kathy was living in a basement apartment with the Stringer’s two daughters, A.S. and I.S. The couple’s three sons were living with Stuart. Kathy and Stuart remarried shortly after the events occurred.

On April 24,1993, Kathy and a friend, Ray Rogers, went to a party at a house belonging to Bob and Cheryl Dumas. According to the testimony of Kathy, Ray and Bob, the partygoers spent the evening consuming a great quantity of whiskey and beer, talking, and playing video games. During the course of the night, they all became extremely intoxicated.

Kathy spent the night at the Dumas’ house, and upon awakening at approximately 5:00 or 6:00 a.m., she drank some more whiskey. The next thing Kathy remembers is being awakened by her ex-husband Stuart. At this time Kathy was in bed with Ray who had also spent the night at the Dumas’ house.

In a written statement given to the Great Falls police on April 26, 1993, Kathy described what transpired next:

At about 9:30 a.m., I was in bed at Robert Dumas[’] house at #17 Fisher Trailer Park and was awaken [ed] by Stuart Stringer, my ex[-]husband with a gun pointed in my face and Ray Rogers [’] face. Stuart said wake up Ray and Kathy you ... bitch, I’m going to kill you. I am foggy about the rest but to the best of my knowledge, Robert Dumas came in front of the gun and told Stuart no, not in my house Stuart. Stuart took off. I got dressed and Ray took me to my house. I went and got something to eat at Taco Treat and then went home and went to sleep.

However, Kathy’s, Ray’s and Robert’s trial testimony was considerably different from Kathy’s written statement. All three testified that Stuart had awakened Kathy and Ray who were in bed together, and that Kathy and Stuart argued and exchanged profanities. Kathy testified that she did not remember if Stuart had a gun with him, but was certain that he did not point a gun at her or threaten her. Ray testified that Stuart did not threaten to kill Kathy or Ray, and that he was certain Stuart did not have a gun. Robert testified that Stuart had a gun which was in a holster which was tucked into his pants. According to Robert, the holstered gun began to slip out of Stuart’s pants while he and Kathy were arguing, and Stuart grabbed it and placed it back into his pants before it fell. The argument ended when Robert interceded and asked both Kathy and Stuart to leave.

Later that evening, Stuart went to Ray’s apartment and asked Ray to accompany him to Kathy’s apartment because he wanted to talk to her and needed a “witness.” Ray agreed to accompany Stuart, and the two men walked to Kathy’s apartment. That evening, at the request of the police, Kathy wrote the following statement regarding what transpired upon Stuart’s arrival:

About 11:15 p.m. I was being pulled out of bed by my hair by Stuart. [H]e threw me against the wall and started to stab at me with his pocket knife. Glenda, the lady upstairs yelled at Stuart and told Stuart to leave. She called 911 — Stuart made me come out with him and Ray Rogers and walk to talk — he kept slashing out at me with the knife. He made Ray and me walk down the alley to 15th St. and he kept on telling Ray and I he was going to kill all of us including himself. He kept on slaping [sic] me up in my mouth and pushing Ray and making me tell him I was going to come back home and how I know I love him and how I was causing problems with him and Ray and how I am and will belong to him. Also he had Ray scared to death. We walked back home and police were there and arrested him.

At trial, Kathy gave a different version of the events occurring that night and testified that the statement she wrote was false. Kathy stated that she wrote a false statement because she was still intoxicated and embarrassed at having been caught in bed with Ray. Kathy then stated that on the night of April 25, 1993, she was lying in bed holding a pocket knife and contemplating suicide by cutting her wrists. Stuart came in to her room and attempted to take the knife. The two struggled with the knife and Kathy testified that she, and maybe Stuart, received cuts. Kathy then stated that she went for a walk voluntarily with Stuart so that they could talk.

Kathy mentioned at trial that Stuart was always welcome at her house, and that she voluntarily went on a walk with Stuart and Ray in an attempt to “work things out.” She also stated that Stuart did not threaten to kill her or Ray during the walk and that neither she nor Ray were afraid of Stuart at this time.

Great Falls Police Officers Carey Tamborino and John Catlett were dispatched to the scene that night as a result of a 911 call. Officer Tamborino testified that upon arriving at Kathy’s apartment, he met Glenda King, Kathy’s landlady who lived upstairs from Kathy. Glenda explained to Officer Tamborino that Stuart had come to the residence and that she had told Stuart that she did not want him in the house. According to officer Tamborino, Glenda stated that Stuart had a knife, and walked down the stairs to Kathy’s apartment and left blood on the railing. She reported that she heard Stuart shout, “you’re going to die with me here if you don’t come with me.” Glenda also told Officer Tamborino that she heard a struggle and then saw Kathy, Stuart, and Ray leave the apartment.

Officer Tamborino also spoke with A.S. and I.S., Stuart and Kathy’s daughters, that night at the scene. A.S. told him that her dad was angry about the recent divorce and that when he arrived that evening she believed he was drunk. A.S. related that Stuart went downstairs, struggled with Kathy and took her out of the apartment at knife point, and stated that he might kill her. Officer Tamborino stated that I.S. appeared to be hysterical, that she was crying and saying “he’s going to kill her.”

Shortly thereafter, Kathy, Stuart and Ray returned to the apartment. Officer Tamborino observed that Kathy had a cut on her wrist, and on her lip. Officer Catlett patted Stuart down, but found no weapons on him. He then placed Stuart under arrest and transported him to the county jail.

Officer Tamborino questioned Ray about the incident. According to Tamborino’s report which he wrote up at the end of his shift, Ray told him that Stuart had come to his apartment that night and asked him to accompany him to Kathy’s apartment. When asked why Stuart had made this request, Ray related that Stuart had said “I’m afraid I’m going to kill her.” Ray also indicated that he was afraid of Stuart, and that Stuart had been brandishing a handgun earlier in the day.

At trial, A.S., Ray, and Glenda King gave testimony which was contradictory to the statements they had given to Officers Tamborino and Catlett. Their testimony at trial tended to demonstrate that Stuart did not commit the crimes charged.

Prior to trial, the State gave notice of its intention to call Shirley LaRocque, a client advocate for a Great Falls’ battered woman’s shelter, as an expert witness. The purpose of Ms. LaRocque’s testimony was to explain the battered woman syndrome and its effect on spouses and children.

On the first day of trial, the defense moved to exclude any prior acts evidence regarding Stuart’s prior criminal history and domestic abuse charges, including testimony from Ms. LaRocque concerning prior abuse between Stuart and Kathy on the basis that no Just notice had been given. The court acknowledged that because the testimony would involve explaining a cycle of abuse, it raised Just notice requirements. However, the court allowed Ms. LaRocque to testify, on the condition that she not testify to any prior acts of abuse. Ms. LaRocque testified concerning the cycle of domestic abuse, and explained that it is not uncommon for a battered woman to recant or change her story at the time of trial.

The court dismissed the aggravated burglary charge at the end of the State’s case, on the grounds that there was insufficient evidence. The jury convicted Stuart of two of the charges: (1) aggravated kidnapping; and (2) assault. The jury found Stuart not guilty of the second assault charge. Additional facts will be presented as are necessary for discussion of the issues.

1. EXPERT TESTIMONY

The first issue Stuart raises on appeal is that evidence of the battered woman syndrome is not admissible because it was offered to bolster Kathy’s credibility. Stuart also attacks the admissibility of battered woman syndrome evidence on several other grounds. However, we shall limit our discussion to the above mentioned argument as it is dispositive.

Standard of Review

Rulings on the admissibility of evidence are left to the sound discretion of the trial court. Mason v. Ditzel (1992), 255 Mont. 364, 370-71, 842 P.2d 707, 712. We review a district court’s evidentiary rulings to determine whether the court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

Use of Battered Woman Syndrome Evidence.

Parties have generally sought to introduce evidence concerning the battered woman syndrome for two purposes: (1) as an affirmative defense of justifiable use of force in a criminal trial, See State v. Kelly (N. J. 1984), 478 A.2d 364; or (2) to provide a possible explanation for the abuse victim’s recantation and to impeach her subsequent testimony that she had lied in her original statement. See State v. Borrelli (Conn. 1993), 629 A.2d 1105. This Court has never directly ruled on whether evidence of the syndrome can be used as an affirmative defense, but we have recognized that this evidence has been used in other jurisdictions. State v. Hess (1992), 252 Mont. 205, 828 P.2d 382. In addition, while we have never directly ruled on whether it is permissible to allow expert testimony to explain why an abused woman might recant earlier statements at a criminal trial against her abuser, we have held that it was impermissible to offer testimony concerning the battered woman syndrome to bolster a female defendant’s credibility. State v. Dannels (1987), 226 Mont. 80, 734 P.2d 188. In Dannels, we also acknowledged that battered woman syndrome evidence can be used to prove that a criminal defendant did not have the requisite state of mind to commit the crime. Dannels, 734 P.2d at 192. Therefore, this case presents the first opportunity for us to decide whether battered woman syndrome evidence can be used by the prosecution in a criminal trial to impeach the complaining witness’ trial testimony, and to explain why a witness recants earlier statements at trial.

Testimony used to bolster victim’s credibility.

Relying on Dannels, Stuart argues that a person may not bolster his or her credibility and explain inconsistent statements were made because he or she suffered from the battered woman syndrome. In Dannels, the defendant was charged with deliberate homicide in connection with the death of her husband. When the police questioned her about the incident, Dannels told the police that she received the bruises during the course of an attack by robbers who broke into their motel room, assaulted her, and killed her husband. However, later examination by a physician revealed that the bruises were old injuries and could not have been sustained on the night in question. Dannels, 734 P.2d at 191. At trial, Dannels sought to introduce evidence concerning the battered woman syndrome to explain why she lied to the police about the origin of her bruises. This Court acknowledged that such evidence could be used to prove that the defendant did not have the requisite state of mind to commit the offense in accordance with § 46-14-102, MCA. However, we held that the evidence was inadmissible because it was being offered for the purpose of bolstering the defendant’s credibility. Dannels, 734 P.2d at 192-93.

However, the purpose for which evidence of the syndrome was sought to be introduced in Dannels is distinguishable. In Dannels, the criminal defendant sought to introduce evidence of the battered woman’s syndrome to bolster her credibility. She did not offer the evidence in support of her own self defense theory. In the instant case, the evidence was offered by the prosecution, to provide an understanding as to why the complaining witness might recant her earlier statement that she suffered abuse at the hands of her spouse. The overwhelming trend of other jurisdictions is to allow evidence regarding the battered woman syndrome. Expert testimony concerning battered woman syndrome is accepted in at least thirty-one states. Bechtel v. State (Okl.Cr. 1992), 840 P.2d 1, 7.

The “battered woman syndrome” is the term used to define the “common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives.” Kelly, 478 A.2d at 371. Because the average juror might not have experience or knowledge about the battered woman syndrome, expert testimony is used to explain recantation by the complaining witness.

The relevance of battered woman syndrome evidence has been aptly described as follows:

A battered woman may act in ways that are incomprehensible to the average person. She may tolerate physical abuse for years, hide her abuse, delay reporting even severe abuse to authorities or friends, or recant and attempt to have charges against her abuser dropped. Consequently, when the state’s key witness, the battered woman, testifies against her batterer, she may appear to be fabricating her story. If the jury does not understand why the woman behaved in this maimer, it will be unable to assess the evidence correctly. Thus, when a batterer is prosecuted, the state needs expert testimony to educate the jury about battered women in order to enable the jury to determine the facts in issue. (Footnotes omitted.)

Schroeder, Using Battered Woman Syndrome Evidence in the Prosecution of a Batterer, 76 Iowa L. Rev. 553 (1991).

Jurisdictions which have approved battered woman syndrome evidence to explain a victim’s recantations do so on the basis that the expert’s testimony would provide a reasonable explanation for the victim’s recantation. State v. Bednarz (Wis.Ct.App. 1993), 507 N.W.2d 168; State v. Borrelli (Conn. 1993), 629 A.2d 1105; Arcoren v. U.S. (8th Cir. 1991), 929 F.2d 1235. In Bednarz, the Wisconsin Court of Appeals explained:

The battered woman’s syndrome is recognized as a subcategory of posttraumatic stress disorder. While there are various possible explanations for [the victim’s] recantation, one explanation could be that the recantation is consistent with this form of posttraumatic stress disorder. An untrained lay person does not know that recantation can be suggestive of posttraumatic stress in the form of the battered woman’s syndrome. The expert opinion was thus permissible to enlighten the jury and allow it to intelligently consider the syndrome as one possible explanation for [the victim’s] behavior.

Bednarz, 507 N.W.2d at 172; see also, State v. Riker (Wash. 1994), 869 P.2d 43, 47 “[the battered woman syndrome] is considered a subset of post-traumatic stress disorder. ...”

Expert testimony in Montana is governed by Rule 702, M.R.Evid., which provides:

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

Here, Stuart is not contesting the general admissibility of evidence regarding the battered woman syndrome, rather, he asserts that it cannot be used to bolster a witness’ credibility. It is well established that an expert cannot be allowed to comment on the credibility of an alleged victim. State v. Harris (1991), 247 Mont. 405, 409-10, 808 P.2d 453, 455; State v. Brodniak (1986), 221 Mont. 212, 222, 718 P.2d 322, 329. The reason for this rule is that the question of credibility lies within the province of the jury, and expert testimony regarding credibility invades the jury’s function by placing a “stamp of scientific legitimacy” on the victim’s allegations. Harris, 808 P.2d at 455.

However, in this case, the evidence was not offered to bolster Kathy’s testimony, but to provide the jury with an explanation for the inconsistencies in her testimony. Furthermore, the expert did not comment as to which of Kathy’s statements were more credible or offer an opinion on whether Kathy is a battered spouse. Rather, she merely provided the jury with information to aid the jury in evaluating the evidence. This type of limited testimony does not invade the jury’s role in determining the credibility of witnesses. Arcoren, 929 F.2d at 1241.

While we hold that expert testimony on battered woman' syndrome should generally be admissible, in this case, the State failed to lay an appropriate foundation establishing that Kathy was a battered spouse. Therefore, testimony about how battered women act was irrelevant and should not have been admitted.

Dr. Lenore Walker, a psychologist who was preeminent in developing the battered woman syndrome, explains in her book, The Battered Woman (1979), that the violence inherent in a battering relationship is not random, but follows an identifiable cycle. The battering cycle has “three distinct phases”: the tension building phase; the explosion or acute battering phase; and the calm, loving respite (often called the honeymoon phase). During the first phase, minor battering incidents may occur. The woman attempts to minimize the incidents and calm the batterer to prevent the violence from escalating. As tension increases, it becomes more difficult for the coping techniques to work, which escalates into the second stage, the battering incident. This stage is characterized by the uncontrollable nature of the abuse (injury, brutality and sometimes death). The battering incident is followed by the third phase where the couple makes up. During this phase, the batterer exhibits loving and caring behavior and typically begs for forgiveness and promises the battering will never happen again. Lenore E. Walker, The Battered Woman 56-70 (1979). Dr. Walker also explains that “in order to be classified as a battered woman, the couple must go through the battering cycle at least twice. Any woman may find herself in an abusive relationship with a man once.” Lenore E. Walker, The Battered Woman xv (1979).

Many jurisdictions considering the admissibility of expert testimony on the battered woman syndrome require proof that the witness was the victim of two cycles of abuse. See for example State v. Koss (Ohio 1990), 551 N.E.2d 970; State v. Borrelli (Conn. 1993), 629 A.2d 1105; Bechtel v. State (1992), (Okl.Cr. 1992), 840 P.2d 1. It follows then that there first must be evidence of a battered victim before expert testimony on the syndrome may be admitted. Koss, 551 N.E.2d at 974, “a defendant attempting to admit expert testimony regarding the battered woman syndrome must offer evidence which establishes herself as a ‘battered woman.’ ” See also Borrelli, 629 A.2d at 1115 n.15.

While we decline to set hard and fast foundational requirements, preferring instead, to leave those to the sound discretion of the trial court on a case by case basis, the party seeking to introduce battered woman syndrome evidence must lay an appropriate foundation substantiating that the conduct and behavior of the witness is consistent with the generally recognized symptoms of the battered woman syndrome, and that the witness has behaved in such a manner that the jury would be aided by expert testimony which provides a possible explanation for the behavior. It also is important to re-emphasize that the expert may not testify to or comment upon the credibility of the witness.

Since the evidentiary foundation will likely involve offering other acts evidence showing prior completed cycles of abuse, counsel seeking to introduce battered spouse syndrome evidence must file the appropriate notice according to State v. Just (1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. If the court determines that the proffered other acts evidence is not admissible under the tests established in Just and Matt, the court may nevertheless, hear the foundation testimony outside the presence of the jury and appropriately limit the testimony presented to the jury.

In the instant case, the State did not file a modified Just notice, and was therefore precluded from offering other acts testimony. Moreover, at trial, the State failed to demonstrate that Kathy was the victim of prior cycles of abuse. Accordingly, we hold that the expert’s testimony should have been excluded because the State failed to lay an appropriate foundation for the expert’s testimony by establishing or offering any evidence that Kathy was a battered spouse.

2. PROSECUTORIAL MISCONDUCT

Stuart contends that the prosecutor engaged in misconduct when, during closing argument, the prosecutor characterized the witnesses favorable to the accused as liars, asserted his personal opinion on Stuart’s guilt, referred to matters not in evidence, and insinuated that defense counsel was keeping vital information probative of guilt from the jury. Stuart asserts that the prosecutor’s misconduct denied him his right to a fair trial as guaranteed by the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution. We agree.

We initially note that in each instance of alleged misconduct, defense counsel objected to the prosecutor’s statements, and therefore, Stuart meets the contemporaneous objection rule at § 46-20-104(2), MCA.

Stuart asserts that the first instance of prosecutorial misconduct occurred when the prosecution characterized Kathy and the Stringer children as liars during his initial closing argument. The prosecutor stated:

A domestic situation should be an environment where there’s nurturing between the spouses and children, where there’s love, where there’s trust, where there’s things being done in caring for each other.
But what do we see in this particular case? We see a family that’s ripped apart. We see a wife that’s willing to lie, be embarrassed, blame herself for the defendant’s acts.
We see children that are taught to lie and despise authority. We see friends who are asked to lie. ...
We see children that live in a constant state of hysteria. It’s no wonder that two of them are in the psych ward at the hospital as we talked today. It’s no wonder that another is in a special program at—

According to Stuart, the second incident of misconduct occurred when the prosecutor expressed his personal opinion and belief that Stuart was guilty of the crimes charged when he stated in rebuttal closing argument:

Mr. Stringer is the defendant. He’s is one [sic] that’s charged. He’s the one that committed the crimes.
I have a strong belief in this case that these crimes were committed.

Finally Stuart argues that the prosecution insinuated that the defense had suppressed information relative to guilt when the prosecution stated:

What the defense hasn’t disclosed to you is that — he talked about probable cause. They talked about reasonable doubt. They talked about burden of proof. They don’t disclose to you what’s necessary for us to bring these charges: The affidavit of probable cause, approval of the Court, motions to dismiss by them, rulings by the Court.

This Court has stated repeatedly that it is highly improper to characterize either the accused or the witnesses as liars or offer personal opinions as to credibility. State v. Arlington (1994), 265 Mont. 127, 157, 875 P.2d 307, 325; State v. Rodgers (1993), 257 Mont. 413, 417, 849 P.2d 1028, 1031; State v. Musgrove (1978), 178 Mont. 162, 172, 582 P.2d 1246, 1252-53. In addition, we have recognized that the Rules of Professional Ethics prohibit a lawyer from asserting personal opinions as to the credibility of a witness, or the guilt or innocence of the accused. State v. Stewart (1992), 253 Mont. 475, 482-83, 833 P.2d 1085, 1089-90; Musgrove, 582 P.2d at 1252-53.

The State contends that the prosecutor did not give a personal opinion regarding the witnesses’ credibility, but was merely commenting on evidence that Kathy and other witnesses had changed their stories from the time they had originally talked to the police. While a prosecutor may point out and comment on contradictions and conflicts in testimony, “[i]t was the task of the jury to determine which testimony and evidence was more believable.” Stewart, 833 P.2d at 1090. We are not suggesting that it is reversible error every time counsel mentions the word “lie” in closing argument. However, in this case, the prosecutor commented so directly on the credibility of the witnesses, and called them liars in so blunt a manner that we cannot conclude that he was merely commenting on or pointing up inconsistencies in the testimony.

It was also improper for the prosecutor to suggest that the trial court had already made findings indicative of guilt and that defense counsel had kept these findings from the jury. By referring to the “affidavit of probable cause” and rulings by the court concerning motions to dismiss, the prosecution not only commented on evidence which was not in the record, but implied that the court had approved the charges and passed judgment on Stuart’s guilt.

The reasons why prosecutorial comments about the guilt of an accused are improper have been set forth at length in State v. Campbell (1990), 241 Mont. 323, 328-29, 787 P.2d 329, 332-33. Among the reasons are that: (1) a prosector’s expression of guilt invades the province of the jury and is an usurpation of its function to declare the guilt or innocence of an accused; (2) the jury may simply adopt the prosecutor’s views instead of exercising their own independent judgment as to the conclusions to be drawn from the testimony; and (3) the prosecutor’s personal views inject into the case irrelevant and inadmissible matters or a fact not legally proved by the evidence, and add to the probative force of the testimony adduced at the trial the weight of the prosecutors’ personal, professional, or official influence.

This Court has been unequivocal in its admonitions to prosecutors to stop improper comment and we have made it clear that we will reverse a case where counsel invades the province of the jury by characterizing a party or witness as a liar, or his testimony as lies. Arlington, 875 P.2d at 325. After considering the prosector’s closing and rebuttal arguments in full, we hold that Stuart was prejudiced by the prosecutor’s improper comments.

3. INSUFFICIENT EVIDENCE

At the close of the State’s case-in-chief, Stuart moved for a directed verdict on the basis that there was insufficient evidence to support a finding or verdict of guilty. The trial court agreed that there was insufficient evidence to support the aggravated burglary charge and dismissed that charge, and the remaining three charges went to the jury. The jury found Stuart guilty of two of the remaining three charges, felony assault and aggravated kidnapping. Stuart contends that the District Court erred in denying his motion for a directed verdict because the only proof of these crimes was Kathy’s prior written inconsistent statement.

Section 46-16-403, MCA, allows a trial court to dismiss a criminal action at the close of the prosecution’s case-in-chief, when the evidence is insufficient to support a finding or verdict of guilty. An accused is entitled to an acquittal “if reasonable persons could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt.” State v. Mummy (1994), 264 Mont. 272, 276, 871 P.2d 868, 870. The decision to direct a verdict lies within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. Mummy, 871 P.2d at 870.

According to Rule 801(d)(1)(A), M.R.Evid., prior inconsistent statements are not hearsay, and thus are admissible as substantive evidence if:

The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony ...

See also, State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, cert. denied, 499 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118.

However, in State v. White Water (1981), 194 Mont. 85, 88, 634 P.2d 636, 638, we held that an “unreliable prior inconsistent statement should not be the sole, substantive evidence” in a criminal conviction. While a prior inconsistent statement standing alone is insufficient to sustain a conviction, a prior inconsistent statement which is corroborated by other circumstantial evidence may suffice. State v. Pinkerton (1995), [270 Mont. 287], 891 P.2d 532, 535.

In the instant case, we conclude that the circumstances under which Kathy’s prior inconsistent statements were given were not unreliable. The statements were written out and signed by her on April 25, 1993, shortly after incidents occurred. Although Kathy had been drinking heavily on April 24,1993, both officers Tamborino and Catlett testified that Kathy did not appear to be intoxicated. In addition, Kathy’s statements were supported by other circumstantial evidence: (1) Kathy had cuts, scrapes and bruises on her body which were photographed by officer Catlett and introduced at trial; (2) the officer’s testimony regarding I.S’s hysterical appearance and statement, “he’s going to kill her” which they observed shortly after arriving at the scene; (3) the fact that Kathy had left for a walk at 11:00 at night without wearing a coat or socks; and (4) the officer’s testimony that the statements of A.S., Glenda King, and Ray Rogers, taken that night at the scene, were consistent with one another.

Construing the evidence in a light most favorable to the prosecution, we conclude that the evidence was sufficient to withstand a motion for a directed verdict and hold that the District Court properly denied Stuart’s motion.

4. JUROR MISCONDUCT

After voir dire had been completed and the jury had been sworn, but before any witnesses were called, defense counsel advised the trial court that Kathy had told him that she knew one of the jurors, D.M.. In chambers, counsel related that there had been problems between Kathy, D.M., and D.M.’s daughter. Defense counsel asked the court to talk to the juror, to determine if the juror did in fact know Kathy, and if so, whether she would be prejudiced against Stuart because of this fact. The court declined to interview D.M., concluding that since she did not mention that she knew Kathy when asked this during voir dire, “we must assume that... although Mrs. Stringer or some witness may know this lady, this lady doesn’t really know them to that degree.” Defense counsel then asked if he could make an offer of proof, which the court denied.

Article II, Section 24 of the Montana Constitution and the Sixth Amendment to the United States Constitution, each guarantee a criminal defendant the right to a fair and impartial jury. A juror’s nondisclosure of information requested, may constitute misconduct and a denial of the accused’s right to a fair and impartial jury if juror’s nondisclosure amounts to “intentional concealment.” State v. Bauer (1984), 210 Mont. 298, 310, 683 P.2d 946, 953.

The State claims that the defense failed to demonstrate intentional concealment even though it had the opportunity to do so at the post-trial hearing on the defense’s motion for a new trial. However, we indicated in State v. Eagan (1978), 178 Mont. 67, 78, 582 P.2d 1195, 1201, and in State v. Baugh (1977), 174 Mont. 456, 571 P.2d 779, when during trial, the court is informed of misconduct, the juror should be interviewed by the court, and the court should inquire of the panel before the verdict is announced if the misconduct tainted the panel. Here, the District Court had the opportunity to question the juror, at the time the issue was brought before it, but chose not to do so.

In making its decision, the court relied on an assumption that although Kathy Stringer may know the juror, “this lady [the juror] doesn’t really know them to that degree.” The court’s assumption was without factual basis, and the court should have interviewed the juror to determine if there was prejudice.

It is the rule in this state that if jury misconduct is shown tending to injure the defendant, prejudice to the defendant is presumed; however, the presumption is not absolute and may be rebutted by the use of testimony of the jurors to show facts which prove that prejudice or injury did not or could not occur.

State v. Eagan (1978), 178 Mont. 67, 79, 582 P.2d 1195, 1202, citing State v. Jackson (1890), 9 Mont. 508, 522, 24 P. 213, 216; Putro v. Baker and Mannix Electric, Inc. (1966), 147 Mont. 139, 147, 410 P.2d 717, 722. The court’s assumption as to the juror’s state of mind or knowledge was not a valid basis to reject the prejudice inherent in the circumstances. We hold that the court’s failure to investigate the matter at the time it was brought to its attention by defense counsel was error.

Reversed and remanded for further proceedings consistent with this opinion.

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

      . Harper & Row Publishers.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RAY DEAN JOHNSTON, Defendant and Appellant.
    No. 93-281.
    Submitted on Briefs April 27, 1995.
    Decided June 15, 1995.
    52 St.Rep. 490.
    897 P.2d 1073.
    271 Mont. 385.

      For Appellant: Marcia M. Jacobson, Public Defender Office, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps III, Missoula County Attorney, Karen Townsend, Deputy County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Ray Dean Johnston, was charged in the District Court for the Fourth Judicial District in Missoula County with sexual intercourse without consent, in violation of § 45-5-503, MCA, and aggravated burglary, in violation of § 45-6-204, MCA. After a trial by jury, Johnston was found guilty of the crimes charged. Johnston appeals from his conviction. We affirm the judgment of the District Court.

The following issues are raised on appeal:

1. Was there probable cause for issuance of the search warrant pursuant to which law enforcement officers gathered samples of Johnston’s hair and bodily fluids?

2. Did the District Court err when it denied Johnston’s motion for a continuance of the trial?

FACTUAL BACKGROUND

On May 11, 1992, Johnston was charged by information with sexual intercourse without consent, in violation of § 45-5-503, MCA, and aggravated burglary, in violation of § 45-6-204, MCA. The issues raised by those charges, and Johnston’s denial, were the subject of a trial by jury that began on November 30, 1992.

At trial, Connie Pearson testified that on November 14, 1990, she was sick and that her friend Dan Coons, who was visiting, left to go to the store to get her some throat lozenges. While Coons was gone, Pearson heard a noise at her front door and thought it was Coons returning from the store. However, when she opened the door, she saw a masked man wearing gloves and holding a long-bladed knife, which resembled a hunting knife.

Pearson testified that the man told her if she screamed, he would hurt her son, who was asleep in the trailer. Pearson testified that this man then took her to the back bedroom, pushed her head into the bed, and raped her. Pearson said that she called 911 and later went to the hospital, where she was examined.

When Pearson was asked by law enforcement officers to name possible suspects, one of the persons she named was an individual she knew as “Ray Dean” who had previously been in her home. Pearson identified Johnston as the Ray Dean she knew from a photo lineup.

Detective Tom Lewis of the Missoula County Sheriff’s Department investigated Johnston’s background and determined that he had been convicted in the past of assaults that were committed in a similar manner. In order to continue his investigation of Johnston, he sought a search warrant which would authorize him to recover samples of Johnston’s hair and bodily fluids. That warrant was issued, the evidence was gathered, and based on a comparison of Johnston’s bodily fluids and bodily fluids found on Pearson following the reported assault, DNA evidence was offered at the time of trial which connected Johnston to the assault. In response to the DNA evidence, Johnston testified at trial that he had had consensual intercourse with Pearson on the date on which she reported the forced intercourse.

ISSUE 1

Was there probable cause for issuance of the search warrant pursuant to which law enforcement officers gathered samples of Johnston’s hair and bodily fluids?

Article II, Section 11, of the Montana Constitution, and the Fourth Amendment to the United States Constitution, protect Montana citizens from unreasonable searches and seizures. The United States Supreme Court held in Schmerber v. California (1966), 384 U.S. 757, 767, 86 S. Ct. 1826, 1834, 16 L. Ed. 2d 908, 918, that the procedures employed for obtaining bodily fluids from an individual involve an intrusion into the zone of privacy and a seizure of the person protected by the Fourth Amendment against unreasonable searches and seizures.

For these reasons, Johnston moved the District Court to suppress the evidence which resulted from the collection of his hair and bodily fluids on the basis that those items were seized from him pursuant to a warrant which was issued without probable cause.

We review applications for a search warrant to insure that the magistrate or judge who issued the warrant had a substantial basis for concluding that probable cause existed for its issuance. State v. Rinehart (1993), 262 Mont. 204, 864 P.2d 1219. However, we do not review the application itself de novo. Rinehart, 864 P.2d at 1223.

We have held that the “totality of the circumstances” test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, is used to determine whether probable cause supports the issuance of a search warrant. State v. Hulbert (1994), 265 Mont. 317, 321, 877 P.2d 25, 27 (citing State v. Neely (1993), 261 Mont. 369, 372, 862 P.2d 1109, 1110). Probable cause is the probability of criminal activity. Aprima facie showing of criminal activity need not be shown. State v. Sundberg (1988), 235 Mont. 115, 119, 765 P.2d 736, 739 (citing Spinelli v. United States (1969), 393 U.S. 410, 419, 89 S. Ct. 584, 590, 21 L. Ed. 2d 637, 645).

We have also held that probable cause must be established from the information contained within the four comers of the search warrant application. Rinehart, 864 P.2d at 1223 (citing State v. Isom (1982), 196 Mont. 330, 341, 641 P.2d 417, 423).

In this case, the State sought a warrant authorizing it to gather blood, pubic hair, head hair, saliva, and urine from Johnston. In support of that application, the State provided an affidavit from Detective Lewis which included the following information:

1. On November 14, 1990, the sheriff’s office investigated an alleged rape at the residence of the reported victim. She described her assailant as an unknown male who entered her trailer with a knife, and who had on a stocking mask over his face, gloves over his hands, and dark clothing.

2. A person known to the victim as “Ray Dean,” had, on numerous prior occasions, asked her out and had come to her trailer on two prior occasions to do so.

3. The person known to the victim as “Ray Dean” matched the physical description of the reported assailant. Through a photo lineup, Lewis determined that “Ray Dean” was Ray Dean Johnston.

4. Based on a criminal history background check, Lewis determined that Ray Dean Johnston had:

a. committed a prior aggravated assault and burglary in Missoula in 1977 when he entered a trailer house occupied by a female wearing a nylon stocking over his face, gloves, and dark clothing, and held a knife to the victim’s throat.
b. been convicted of assault and robbery in Kansas in 1974 based on an incident where he entered a female’s home wearing a stocking over his face, gloves on his hands, and dark clothing, and during which he also carried a weapon.
c. as part of the plea bargain related to the Kansas incident, confessed to eight rapes or attempted rapes, and eleven burglaries. Lewis’s affidavit in support of the State’s application included

other information which is not relevant to our conclusion.

On appeal from the District Court’s order denying Johnston’s motion to suppress the evidence gathered pursuant to the State’s search warrant, Johnston contends that there was insufficient evidence within the four corners of Lewis’s affidavit to establish probable cause for issuance of the warrant. Specifically, he contends that there was nothing within the affidavit to establish a nexus between him and the crimes which were being investigated. He also goes beyond the four corners of the affidavit to suggest numerous facts which were inconsistent with probable cause to believe that he was Pearson’s assailant. He argues that, at most, Lewis established a suspicion of his guilt, but that in State v. Isom, 641 P.2d at 424, we held that a mere suspicion was insufficient to establish probable cause for the issuance of a search warrant.

In response, the State points out that Lewis’s affidavit described the crime which was being investigated, including its location, the manner in which the assailant was attired, and that he was carrying a weapon. The affidavit established that Johnston was familiar with the reported victim, and in fact, had asked her to date him on previous occasions. It also established that he matched the physical description of the person who reportedly assaulted Pearson, and that he had a prior history of similar acts while disguising himself in a manner nearly identical to the disguise employed in this case.

In State v. Hook (1992), 255 Mont. 2, 6, 839 P.2d 1274, 1277, we held that criminal history is “one of the many factors to be considered under the totality of circumstances test.” Furthermore, the Pennsylvania Supreme Court, in Commonwealth v. Gullett (Pa. 1974), 329 A.2d 513, 518, expressed the view that:

[W]here the past criminal conduct bears a sufficient similarity either because of the nature of the crime or the manner of its execution to the act in question, so as to give rise to a reasonable inference that the same person committed both acts, this fact can be considered along with other available information in a determination of probable cause.

We conclude, under the circumstances in this case, that the affidavit offered by the State in support of its application to seize the person of Ray Dean Johnston and search his person by collecting body hair and withdrawing bodily fluids established probable cause when the similarity of his past criminal conduct is considered in combination with the fact that he had previously attempted to establish a relationship with the reported victim and that he matched the physical description of the person who was reported to have assaulted her. For these reasons, we conclude that there was a substantial basis for the issuance of the search warrant at issue and that the District Court did not err when it denied Johnston’s motion to suppress the evidence gathered as a result of that warrant.

ISSUE 2

Did the District Court err when it denied Johnston’s motion for a continuance of the trial?

On the date of trial, two of Johnston’s witnesses did not appear, even though they had agreed to appear and had been subpoenaed. They reportedly were in Nevada on that date. The trial court, while agreeing that defense counsel had made a good faith effort to secure the presence of those witnesses, refused to continue the trial so that their testimony could be presented. Defendant contends that these witnesses would have corroborated Johnston’s testimony that he had a financial relationship with Pearson which he explained as the basis for his presence in her home and her participation in consensual intercourse with him.

We have held that the district court does not err when it denies a motion for continuance absent a clear abuse of discretion. State v. Walker (1986), 225 Mont. 415, 419, 733 P.2d 352, 355 (citing State v. Harvey (1979), 184 Mont. 423, 431, 603 P.2d 661, 666).

Section 46-13-202(3), MCA, states:

All motions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. This section must be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.

The State argues that the District Court’s exercise of its discretion when it denied Johnston’s motion for a continuance is supported by the fact that the motion was made just prior to Johnston’s presentation of evidence, rather than prior to trial, the fact that both witnesses were related to Johnston, and that collusion between them and Johnston was justifiably suspected, and the fact that defense counsel knew prior to trial that both witnesses were out of state, but had not had out-of-state subpoenas issued.

The reason the District Court is given broad discretion to decide motions for a continuance is because of its superior position to consider the merits of such a motion in the context of the factors set forth in § 46-13-202(3), MCA. Based on the sterile record before us, we are unable to conclude that the District Court clearly abused that discretion.

For these reasons, the judgment of the District Court is affirmed.

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