author: JUSTICE TRIEWEILER

text:
    JOSEPH J. GEIGER, Plaintiff and Appellant, v. SHERRODD, INC., a Montana Corporation; DAVID LEE KINSEY, individually and as agent and employee of Sherrodd, Inc.; and LEE SMITH, individually and as agent and employee of Sherrodd, Inc., Defendants and Respondents.
    No. 92-624.
    Submitted on Briefs November 18, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1661.
    262 Mont. 505.
    866 P.2d 1106.

      For Plaintiff and Appellant: Harry J. Mehr, Glendive; Peter T. Stanley, McNamer, Thompson, Werner & Stanley, P.C., Billings.

      For Defendants and Respondents: Michael W. Tolstedt and Michael P. Heringer, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Joseph J. Geiger filed this action in the District Court for the Thirteenth Judicial District in Yellowstone County, Montana, to recover damages for injuries sustained in a collision with defendants. The jury returned a verdict for defendants and the District Court denied plaintiff’s motion for a new trial. Plaintiff appeals from the denial of his motion for a new trial. We affirm the order of the District Court.

The issues on appeal are restated as follows:

1. Did the District Court commit reversible error when it incorrectly instructed the jury on comparative negligence?

2. Did the District Court err when it failed to properly respond to questions asked by the jury?

3. Did the District Court err when it refused to consider juror affidavits which set forth evidence of juror misconduct?

4. Did the District Court abuse its discretion when it rejected plaintiff’s proposed jury instruction regarding the non-appearance of a defendant?

On December 12, 1985, plaintiff Joseph J. Geiger was driving a semitruck and trailer for his employer on U.S. Highway 20 in Idaho when he collided with a semitruck and trailer owned by defendant Sherrodd, Inc.

Prior to the accident, the Geiger truck had been following two Sherrodd trucks. The first was driven by defendant Leroy (Lee) Smith; the second by defendant David Kinsey. The road conditions varied from clear to snowpacked and visibility was poor at times due to blowing snow. Testimony indicated that the trucks were traveling between 40 and 55 miles per hour, depending on visibility. At a point on the highway near the Elk Creek Conoco Station, Kinsey testified that he heard a radio message from an unidentified driver having trouble with his transmission, stating, “I missed the first exit, I’m going to the second.” Assuming the message was from Smith, the Sherrodd driver in the lead, Kinsey immediately began gearing down to slow his speed. He testified that he saw Smith’s truck in the lane in front of him, either stopped or moving slowly forward with the left turn signal flashing. Kinsey then looked into his rearview mirror and saw plaintiff’s truck emerging from the swirling snow. Kinsey pushed the throttle in a futile attempt to give plaintiff space to stop. Plaintiff testified that the Kinsey trailer was in the right driving lane at the point of impact.

After a three-day trial, the jury returned a verdict for defendants, finding both plaintiff and defendants negligent and apportioning 51 percent of the fault to plaintiff.

STANDARD OF REVIEW

We have held that the decision to deny a motion for a new trial is within the sound discretion of the trial court and will not be overturned absent a showing of manifest abuse. Tope v. Taylor (1988), 235 Mont. 124, 131-32, 768 P.2d 845, 849-50.

I.

Did the District Court commit reversible error when it incorrectly instructed the jury on comparative negligence?

Plaintiff correctly points out that Jury Instruction No. 17 misstated the law on comparative negligence. That instruction stated in part that, “[p]laintiff is entitled to recover unless you find his negligence to be 50% or greater.” [Emphasis added]. On appeal, plaintiff argues that the instruction should have stated “greater than 50 percent,” rather than “50% or greater.” See § 27-1-702, MCA.

Plaintiff’s objection to the District Court’s instruction on comparative negligence is untimely. During settlement of the proposed jury instructions, plaintiff indicated that he had no objection to the instruction he now claims is erroneous and prejudicial. It has long been the rule in Montana that objections to jury instructions not raised at trial are waived. Frederick v. Hale (1910), 42 Mont. 153, 112 P. 70; Tripp v. Silver Dyke Mining Co. (1924), 70 Mont. 120, 224 P. 272; State Highway Comm’n v. Beldon (1975), 166 Mont. 246, 531 P.2d 1324; Ahmann v. American Fed. Savings and Loan Assoc. (1988), 235 Mont. 184, 766 P.2d 853; see also, Rule 51, M.R.Civ.P; Greytak v. RegO Co. (1993), 257 Mont. 147, 848 P.2d 483.

Despite his failure to object at trial, plaintiff invokes the “plain error” rule. That rule allows this Court to review errors that were not objected to at trial, but result in substantial injustice to a party by denying that party a fair trial. Rule 103(d), M.R.Evid.; Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169. Plaintiff argues that our decision in State Bank of Townsend v. Maryann’s, Inc. (1983), 204 Mont. 21, 664 P.2d 295, controls the outcome of this case. There, we applied the plain error doctrine to remand a case for retrial after finding “inherent error” in the instructions and special interrogatories submitted to the jury. State Bank of Townsend, 664 P.2d at 301. However, the opinion also stated that “[w]e are not able to determine what the jury was instructed to do ... nor are we able to determine what the jury actually did.” State Bank of Townsend, 664 P.2d at 300.

In this case, although the jury instruction did misstate the law, an accurate statement of the comparative negligence rule appeared in the latter part of the same instruction. An accurate statement of the rule also appeared in Question No. 4 on the special verdict form, stating, “[i]n apportioning responsibility, negligence on the part of the Plaintiff does not bar recovery unless his negligence was greater than the negligence of the Defendants.” Furthermore, when the jury returned with its verdict, the District Court asked the jurors whether they understood that the effect of their verdict was that plaintiff would receive no money. The jurors responded affirmatively.

In Reno v. Erickstein (1984), 209 Mont. 36, 42, 679 P.2d 1204, 1207-08, we held that “ ‘[pjlain error’ generally involves an act or omission of a more serious nature than ‘reversible error,’ and only on rare occasion is the former doctrine invoked in civil cases.”

We decline to apply the “plain error” rule in this case. We conclude that when plaintiff failed to object to the District Court’s instruction on comparative negligence, he waived his right to object by post-trial motion or on appeal.

II.

Did the District Court err when it failed to properly respond to questions asked by the jury?

During deliberations, the jury sent a written message to the judge stating, “[tjhere appears to be a discrepancy between Question Number 4 and Instruction Number 17 regarding 50 percent rule. ... If Geiger is exactly 50 percent negligent, is he entitled to compensation?” The judge responded in writing, “read Question Number 4 on the special verdict form. 50 percent is not greater than 50 percent.” The jury next requested to see the deposition of an eyewitness. The judge responded that the deposition was not available to them. Before the jury delivered its verdict, the District Court informed counsel for both plaintiff and defendants of the jury’s questions and his responses.

In its order denying plaintiffs motion for a new trial, the District Court rehed on our opinion in Fordyce v. Hansen (1982), 198 Mont. 344,646 P.2d 519. There, the jury asked, through the bailiff, “whether all forms for verdict which had been submitted had to be filled out ....” In response, the bailiff was told to tell the jury, “only such form as fitted their verdict.” Fordyee, 646 P.2d at 521. We held that although it is the better practice to bring the jury into open court, the innocuous nature of the communication between the judge and jury did not result in prejudice to any party. Fordyee, 646 P.2d at 521.

Plaintiff argues that Henrichs v. Todd (1990), 245 Mont. 286, 800 P.2d 710, is more relevant to this case. There, we found reversible error because the bailiff told the jury that the judge would not respond to their question “until hell froze over.” Henrichs, 800 P.2d at 712.

Defendants argue that although the attorneys were not present when the District Court responded to the jury, plaintiff did not object when the District Court advised the attorneys of its responses, and that this failure to object precludes plaintiff from assigning error to the District Court’s actions on appeal. We agree. If there was a more appropriate response or procedure to be followed, then plaintiff had an obligation to bring it to the District Court’s attention at a time when something could have been done about it. By failing to do so, he waived his right to raise this issue by post-trial motion or on appeal.

III.

Did the District Court err when it refused to consider juror affidavits which set forth evidence of juror misconduct?

With his motion for new trial, plaintiff filed two affidavits from jurors alleging that another juror had disregarded the District Court’s admonition to refrain from discussing workers’ compensation insurance. The District Court ruled that this was an insufficient ground upon which to grant a new trial, based on Rule 606(b), M.R.Evid., which states in part that “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations ....” Nor did the District Court find that any of the exceptions provided in Rule 606(b) applied, citing Harry v. Elderkin (1981), 196 Mont. 1, 637 P.2d 809, where this Court distinguished between external and internal influence upon a jury. Only where the court finds external influence will there be sufficient basis to grant a new trial. Harry, 637 P.2d at 813. Examples of external influence include a juror’s telephone call to obtain information with regard to previous litigation involving the plaintiff, visiting the scene of an accident and reporting findings to fellow jurors, or bringing a newspaper article into the jury room and showing it to jury members. Harry, 637 P.2d at 813. Examples of internal influence which will not form the basis for a motion for a new trial include the jury’s misapprehension of evidence or the law, or consideration of defendant’s insurance. Harry, 637 P.2d at 813.

The misconduct alleged in this case amounts to internal influence. We conclude that the District Court did not err when it refused to consider the affidavits for the purpose of impeaching the jury verdict.

IV.

Did the District Court abuse its discretion when it rejected plaintiff’s proposed jury instruction regarding the non-appearance of a defendant?

The District Court refused plaintiff’s proposed Instruction No. 37, which stated,

You are instructed that if a party has failed to produce a witness within his power to produce, you may, if you see fit, infer from that, if here given, the testimony of such witness would not have been favorable to such party. This rule is applicable, however, if and only if you believe the situation between such party and the witness was of a nature whereby with exercise of reasonable diligence such party could have produced such witness, further, that a reasonable person in the same circumstances would have produced such witness if such party believed the testimony of such witness would be favorable to such party, further, that no reasonable excuse exists for the failure of such party to produce such witness and, further that the witness was not equally available to the adverse party As support for this instruction, plaintiff cites State ex rel. Nagle v.

Naughton (1936), 103 Mont. 306, 63 P.2d 123. Plaintiff contends that this instruction was required to counter the comments of defense counsel during voir dire that “[defense counsel] was at fault for not obtaining the presence of Mr. Smith because Mr. Smith was a truck driver and could not be found.” However, plaintiff objected to that statement and his objection was sustained. He made no request that the jury be admonished to disregard the remark.

Defendants point out that, as a defendant, Lee Smith was not required to be present for trial and contend that plaintiff had no need to call Smith as a witness after plaintiff read Smith’s deposition during plaintiff’s case-in-chief. Finally they argue that on the last day of trial, defense counsel advised the court that Smith was available to testify and that although the Court gave plaintiff an opportunity to reopen his case, plaintiff declined.

There is no evidence in the record to support defendants’ version of events. However, in his reply brief, plaintiff does not deny that this is what occurred.

This Court has held that “[i]t is not reversible error for a trial court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction, thereby prejudicing him.” Cottrell v. Burlington Northern Railroad Co. (1993), [261 Mont. 296], 863 P.2d 381, 387, 50 St. Rep. 1323, 1327 (citing Payne v. Sorenson (1979), 183 Mont. 323, 599 P.2d 362). See also, Walden v. State (1991), 250 Mont. 132, 818 P.2d 1190.

We do not decide whether under other circumstances, failure to give such an instruction would be reversible error. However, based on the record before us, we are unable to conclude that plaintiff’s substantial rights were adversely affected by the District Court’s refusal to give his proposed instruction in this case. We conclude that the District Court did not abuse its discretion when it denied plaintiff’s motion for a new trial.

The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE NELSON JUSTICE TRIEWEILER

license: Public Domain

text:
    TRUSTEES, CARBON COUNTY SCHOOL DISTRICT NO. 28, Petitioner and Respondent, v. HELEN SPIVEY, Respondent and Appellant.
    No. 93-021.
    Submitted on Briefs August 26, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1664.
    262 Mont. 513.
    866 P.2d 208.

      For Respondent and Appellant: Emilie Loring, Missoula.
    For Petitioner and Respondent: Laurence R. Martin and Sol Lovas, Felt, Martin & Frazier, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Thirteenth Judicial District Court, Carbon County, order reversing the State Superintendent’s reversal of a County Superintendent’s conclusion that the Trustees of Carbon County School District No. 28 correctly terminated Helen Spivey’s teaching contract. We affirm.

We restate the issues on appeal:

I. Did the trial court use the correct standard of review when it reversed the State Superintendent’s decision?
II. Should County Superintendent Reynolds have reviewed this action de novo?
III. Did the State Superintendent correctly conclude that:
A. there was not substantial evidence to support County Superintendent Reynolds’ conclusion that Spivey’s teaching contract was correctly terminated?
B. Reynolds erred in concluding that Spivey’s termination was not premature?
C. Reynolds erred in concluding that Spivey could be terminated because of insubordination?

FACTS

Appellant, Helen Spivey (Spivey) was a Montana certified, tenured teacher in the Carbon County School District No. 28. The Respondents are the Trustees of the Carbon County School District No. 28 (Trustees).

Spivey had taught in a multi-grade classroom at Boyd School in Carbon County for 8 years. The teaching staff at Boyd School consisted of one teacher, Spivey and one aide, Kathy Grewell. Problems arose during the 1985-1986 school year which culminated in a letter to Spivey from Bruce McKee, a school board trustee, to inform her that there had been a recommendation to terminate her teaching contract. She waived the right to a hearing before the Trustees. In a letter from the Trustees, dated March 31,1986, Spivey was notified that they had voted unanimously to terminate her teaching contract and “not offer [her] a new contract for the ensuing 1986-1987 school year.” Further facts will be provided as necessary in the body of the opinion.

PROCEDURAL BACKGROUND

Spivey appealed the Trustees’ decision to the County Superintendent of Schools, Carbon County. Edith Evans (Evans), Deputy County Superintendent of Schools, Stillwater County, sat in place of Peggy Kotar (Kotar), Superintendent of Schools, Carbon County, who had disqualified herself. Evans reversed the decision of the Trustees, concluding that “Spivey was given inadequate opportunity to remedy the problems” and “[t]he admissible evidence ... is insufficient to establish good cause for Spivey’s termination....” (County Decision I) Evans ordered reinstatement of Spivey as a tenured teacher in the Boyd School “with no loss in salary or fringe benefits.” The Trustees appealed this decision to the State Superintendent of Public Instruction, Ed Argenbright (Argenbright). Argenbright reversed Evans’ decision and affirmed the Trustees. (State Decision I)

Spivey appealed Argenbright’s order to the First Judicial District Court, Lewis and Clark County. (District Court Decision I) The trial court made the following conclusions:

1. “Good cause can be based only on competent evidence regarding the actions or inactions of the teacher in question.”

2. Letters from parents who were available to testify at the hearing could be considered for content containing parents’ observation and parents’ intentions. Information contained in the letters of descriptions of what the children told their parents should have properly been excluded as hearsay.

3. Letters from Mr. Christensen, Superintendent of Yellowstone County Schools and letters from parents unavailable to testify at the hearing were properly excluded.

4. Since the State Superintendent did not address the County Superintendent’s conclusion that Spivey was not given adequate time to address her problem areas (with the exception of playground supervision), the County Superintendent’s conclusion was affirmed.

5. The State Superintendent’s conclusion that there was substantial credible evidence of insubordination must be reversed because it was not part of the County Superintendent’s findings below.

6. Because evidence was improperly excluded when the County Superintendent made her initial decision, the case was remanded to the County Superintendent to reconsider the evidence in light of these holdings to determine whether there was rehable, probative and substantial evidence to find good cause for Spivey’s termination.

On remand, the case was considered by Acting County Superintendent of Schools, Carbon County, Carole Reynolds (Reynolds). (County Decision II) Reynolds reviewed the transcript de novo, concluding that “loss of confidence in the teacher was justified and is just cause for termination.” She also concluded that insubordination was just cause for termination and Spivey was insubordinate on at least three occasions. Finally, she concluded that Spivey’s actions were “patently unacceptable and the termination of Petitioner was not Premature.”

Reynolds’ decision was appealed to the Superintendent of Public Instruction Nancy Keenan (Keenan). (State Decision II) Keenan reversed Reynolds’ decision, concluding that Reynolds erred in finding that Spivey could be terminated for insubordination; she erred in finding that Spivey’s termination was not premature; and finally, that she erred in holding “that there was reliable, probative and substantial evidence on the whole record which identifies actions or inactions of Spivey which resulted in loss of parental confidence and potential loss of students.”

The State Superintendent’s order was appealed to the Thirteenth Judicial District Court, Carbon County. (District Court Decision II) The District Court reversed the State Superintendent and affirmed the findings of fact and conclusions of law of the County Superintendent of Stillwater County. The court concluded that there was substantial evidence to uphold Reynolds’ finding that parents had lost confidence in Spivey. It further concluded that this loss of confidence was based on specific actions and inactions by Spivey and the State Superintendent should have affirmed the County Superintendent’s conclusion that loss of parental confidence was good cause for termination. The court also determined that the County Superintendent’s conclusion that Spivey’s insubordination was good cause for termination was correct. Finally, the court determined that the evidence suggested that Spivey’s actions were patently unacceptable because parents had threatened to remove their children from the school. Because these actions were patently unacceptable, the County Superintendent correctly concluded that Spivey’s termination was not premature.

Spivey appealed the District Court’s order to this Court which brings us to the present action.

STANDARD OF REVIEW

Our standard of review for findings of fact is whether a finding is “clearly erroneous.” Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” Steer, 803 P.2d at 603. Our standard of review for conclusions of law is whether the tribunal’s interpretation of the law is correct. Steer, 803 P.2d at 603.

OPINION

Spivey argues that the District Court did not correctly apply § 2-4-704, MCA, and that it substituted its judgment for that of the State Superintendent. It was the State Superintendent’s job to determine whether the County Superintendent exceeded her authority upon remand of the case and whether the admissible evidence Reynolds reviewed established good cause for terminating Spivey’s contract. The District Court was “then limited to the standards of review of the Administrative Procedure Act. In deciding matters not before him the District Judge exceeded the proper scope of review.” Finally, Spivey argues that there is substantial evidence in the record to support the findings and conclusions of the State Superintendent and that she should have been affirmed.

The Trustees state that what Spivey is really arguing is that the District Court reviewed the wrong decision — it should have reviewed “the State Superintendent’s decision for factual support and legal error, rather than reviewing the County Superintendent’s decision.” They contended that she then proceeded to argue two issues that were not really stated in her statement of the issues. She argues that Reynolds exceeded the scope of her authority on remand from the First Judicial District Court and that the facts on the record support the State Superintendent’s decision but do not support the County Superintendent’s findings and conclusions.

I. CORRECT STANDARD OF REVIEW

The proper standard of review in a case such as this, which is reviewed at a number of different levels, has caused a great deal of confusion. We therefore take this opportunity to clarify this area of the law. The decision of the county superintendent is subj ect to review by the state superintendent under Rule 10.6.125 ARM, which provides as follows:

10.6.125 APPELLATE PROCEDURE — STANDARD OF REVIEW
(1) The state superintendent of public instruction shall be subject to the standard of review as set forth below and shall be confined to the record established at the factfinding hearing.
(2) In cases of alleged irregularities in procedure before the county superintendent not shown on the record, proof thereof may be taken by the state superintendent.
(3) The state superintendent, at his/her discretion or upon request, may hear oral arguments and receive written briefs.
(4) The state superintendent may not substitute his/her judgment for that of the county superintendent as to the weight of the evidence on questions of fact. The state superintendent may affirm the decision of the county superintendent or remand the case for further proceedings or refuse to accept the appeal on the grounds that the state superintendent fails to retain proper jurisdiction on the matter. The state superintendent may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings of fact, conclusions of law and order are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;
(g) affected because findings of fact upon issues essential to the decision were not made although requested.

The decision of the state superintendent, in turn, is subject to review by a district court under § 2-4-704, MCA, which provides:

Standards of review. (1) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the rehable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(b) findings of fact, upon issues essential to the decision, were not made although requested.

Section 2-4-704, MCA, and Rule 10.6.125, ARM, are almost identical. The salient points in both are that the reviewing body may not substitute its judgment for that of the lower body as to the weight of the factual evidence and that the reviewingbody may affirm, remand, reverse or modify the prior decision. Both require reversal or modification of a decision of a lower body if substantial rights of the appellant have been prejudiced because of certain errors found in the lower body’s findings and conclusions.

The major cause of confusion in the instant case is whether, under § 2-4-704, MCA, a district court should review the decision of the county superintendent or the decision of the state superintendent.

A district court, reviewing a decision appealed from the state superintendent, which was appealed from a county superintendent’s decision, must review the decision of the state superintendent. Trustees, Missoula Cty. S.D. 1 v. Anderson (1988), 232 Mont. 501, 504, 757 P.2d 1315, 1317. However, in order to review the decision of the state superintendent and ensure that she has correctly reviewed the county superintendent’s decision, the district court must review the findings and conclusions of the county superintendent. The district court must decide whether the county superintendent’s findings and conclusions were supported by reliable, probative and substantial evidence in the first instance in order to determine whether the state superintendent reviewed and correctly affirmed or reversed the decision of the county superintendent.

Here, the District Court correctly reviewed State Decision II but it could not do so without focusing on County Decision II first. It properly reviewed County Decision II, noting that the conclusions were supported by reliable, probative and substantial evidence, and concluded that because the County Superintendent properly determined that Spivey’s contract was terminated for good cause, the State Superintendent should have affirmed County Superintendent Reynolds’ decision. (We note that the county superintendent is required to hold a de novo hearing when deciding a controversy between the school and a teacher whose contract was terminated. Yanzick v. School District No. 23, Etc. (1982), 196 Mont. 375, 641 P.2d 431.)

The District Court determined that differences in the findings and conclusions of County Decision II from those of County Decision I were not improper because the District Court Decision I instructed Reynolds, upon remand, to review additional evidence which had been previously excluded. The court noted that the additional evidence included “such items as the children’s attitudes toward school, the lack of discipline at school, the parents’ dissatisfaction with their conversations with Spivey about their children’s problems, and Spivey’s failure to respond to such problems.” This evidence led County Superintendent Reynolds to conclude that Spivey’s contract was correctly terminated, and the State Superintendent should have affirmed this decision because the County Superintendent’s decision was based on substantial evidence.

II. COUNTY DECISION II

Spivey argues that County Superintendent Reynolds should not have reviewed the entire record de novo, when deciding County Decision II. Rather, she should have considered specific evidence, such as “the parents’ intentions and observations and whether Spivey had adequate opportunity to improve her playground supervision....” The Trustees counter that “County Superintendent Evans’ findings were voided and entirely thrown out by Judge Bennett when he ruled that the key issues — good cause and prematureness — had to be entirely reconsidered. Therefore, the case stood in the position of having a hearing record, but no findings on the key issues of good cause and prematureness.”

We conclude that County Decision II was properly based on a de novo review of the record. When the original trial level official is replaced, a subsequent trial level official has the authority to make new findings and conclusions if there is no protest from either of the parties. As stated in Phalen v. Rilley (1970), 154 Mont. 399, 403, 465 P2d 102, 105, citing Worden v. Alexander et al. (1939), 108 Mont. 208, 211, 90 P.2d 160, 161:

While there is some conflict in the authorities, the decided weight of authority is that when the trial judge to whom the case has been submitted upon evidence introduced before him dies before making findings of fact, his successor has no authority to make findings of fact and conclusions of law without the consent of the parties involved; in such a case any party has the right to insist upon a new trial. (Citing cases.) However, a party may waive his right to a new trial and consent that the successor may decide the case made on the record before the trial judge. (Citing cases.)

We find this proposition applies in this case. Nothing in the record suggests that Spivey protested against the substitution of County Superintendent Reynolds nor did she request a new trial. In addition, when the case was remanded by the First Judicial District Court with the proviso, “so that she can reconsider the evidence in light of our holdings and make a determination on these issues,” the County Superintendent was given latitude in her decision-making beyond the parameters of County Decision I. Zavarelli v. Might (1989), 239 Mont. 120, 125-126, 779 P.2d 489, 493, is instructive:

We come now to the effect of the mandate from this Court to the District Court when, on reversal and remittitur, the District Court was instructed to take “such further proceedings as are necessary in light of this opinion and the facts found by the District Court.”
“On remand, the trial court may consider or decide any matters left open by the appellate court, and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. The issues are generally open on a retrial when a case is reversed and remanded for further proceedings. If the mandate speaks only in the light of the special facts found, the lower court is at liberty to proceed in all other respects in the matter that, according to its judgment, justice may require. The trial court should examine the mandate and the opinion of the reviewing court and proceed in conformity with the views expressed therein. The mandate is to be interpreted according to the subject matter and, if possible, in a manner to promote justice.” (Citation omitted.)

Additionally Zavarelli continues:

When this Court reversed the first judgment of the District Court as to a prescriptive easement, and remanded the cause to the District Court for further proceedings, the cause was then before the District Court in the posture of not having a final judgment. In that situation, when there is nothing in the terms of the mandate to prevent it, the trial court has the power, on reconsideration, to find the same facts and change its holding, or to find different facts consistent with its original holding.

Zavarelli, 779 P.2d at 493. (Citation omitted.)

District Court Decision I stated:

Neither this Court nor the State Superintendent is empowered to weigh the evidence in this case. By the same token this Court cannot act as an expert in matters of teacher termination. Thus, we are unable to determine whether, with the inclusion of the previously excluded evidence, there is good cause to justify termination. Further, we have heard no argument and make no holding as to whether, in any event, Spivey’s termination was premature because she had not been given adequate opportunity to address the identified problems or whether her actions were so patently unacceptable that she could be termination (sic) without such an opportunity.
Therefore it is hereby ORDERED that this case be remanded to the County Superintendent so that she can reconsider the evidence in light of our holdings and make a determination on these issues.

The District Court left open the determination of good cause for the termination of Spivey’s contract and the prematureness of her contract termination and whether Spivey’s actions were so patently unacceptable that she could be terminated without an opportunity to adequately address the problems. County Superintendent Reynolds was free to determine anew the issues in the present action in County Decision II.

III. STATE SUPERINTENDENT’S CONCLUSIONS

The State Superintendent in State Decision II concluded that there was not substantial evidence in County Decision II to support Reynolds’ conclusions of law that Spivey’s teaching contract was properly terminated, that Reynolds’ erred in determining that Spivey’s termination was not premature and in determining that Spivey could be terminated because of insubordination.

A. SUBSTANTIAL EVIDENCE TO TERMINATE CONTRACT

Spivey contends that the State Superintendent correctly determined that “there was not reliable, probative and substantial evidence on the whole record which identified actions or inactions of Spivey which resulted in loss of parental confidence and potential loss of students.” However, a close review of the record reveals that the District Court properly concluded that there was substantial evidence on the record to support County Superintendent Reynold’s conclusion that actions and inactions of Spivey resulted in loss of confidence by parents, particularly when Reynolds reviewed the evidence which had been excluded in County Decision I. A number of parents reported that their children were unhappy and disenchanted with school. There were eyewitness accounts of incidents of lack of supervision and disciplinary problems with the children. A number of parents stated that they would remove their children from the school if the teacher was retained. Because reliable, probative and substantial evidence supports Reynolds’ determination that Spivey had lost the confidence of the parents due to her various actions and inactions, the State Superintendent substituted her judgment for that of the County Superintendent and, thus, erred in reversing this conclusion in County Decision II.

B. PREMATURENESS OF TERMINATION

Spivey contends that Reynolds erred in concluding that the termination of her contract was not premature. She also asserts that Reynolds had no jurisdiction to make a decision regarding whether the termination was premature. The Trustees, on the other hand, state that the County Superintendent correctly held that the problems were so serious as to be patently unacceptable and therefore a period of remediation was not required. The Trustees further assert that since Spivey would not admit to any problem areas, a period of remediation would have been useless.

We conclude that County Superintendent Reynolds properly determined that Spivey’s termination was not premature. District Court Decision I provides the framework within which County Decision II was to have been decided and it provides:

[W]e have heard no argument and make no holding as to whether, in any event, Spivey’s termination was premature because she had not been given adequate opportunity to address the identified problems or whether her actions were so patently unacceptable that she could be termination (sic) without such an opportunity. (Emphasis added.)

Clearly, in its final holding, the issue of whether Spivey’s termination was premature was left open for decision in County Decision II. Spivey argues, however, that the District Court Decision I concluded that Spivey did not have adequate time to address the problems other than playground supervision. Spivey cites the District Court decision, page 14, lines 7-14 which states:

We reiterate however that the State Superintendent made no findings or conclusions regarding the other items [other than playground supervision] listed in the directives. Therefore, we infer that he agreed with the Comity Superintendent [Evans] that Spivey had not been given adequate opportunity to remedy these problems. Because there is no disagreement, we will not review this issue and further affirm the County Superintendent’s conclusion that Spivey had not been given adequate opportunity to address the other problems.

Although this passage is indeed, inconsistent with the passage aforementioned, the trial court’s final holding in District Court Decision I is determinative. It clearly states that it makes no holding as to the issue of whether Spivey had an adequate opportunity to address the identified problems. Therefore, this issue was left open for County Superintendent Reynolds to decide after a de novo review in County Decision II.

There was sufficient evidence presented to establish actions which resulted in parents’ threats to withdraw their children from the school. There was also evidence that Spivey would not acknowledge that there were deficiencies upon which to improve. This evidence is sufficient to support a conclusion that the County Superintendent did not abuse her discretion in determining that Spivey’s actions and inactions were patently unacceptable and that she could be terminated without an opportunity to improve her deficient areas. Hence, the State Superintendent erred in reversing the County Superintendent in State Decision II. As was so aptly stated in Siglin v. Kayenta Unified School Dist. No. 27 (Ariz. 1982), 655 P.2d 353, 357,

[I]t was not the function of the trial court to determine whether there was evidence to support a conclusion that Mr. Siglin should have been retained. Rather, it was the function of the trial court to determine whether reasonable evidence supported the school board’s determination that good cause existed for dismissal. (Citations omitted.)

This reasoning applies equally to the State Superintendent and the District Court in this case. The function of both levels of review is to determine whether the original hearing officer’s findings of fact are supported by substantial evidence and the conclusions of law are not characterized by an abuse of discretion. Here, the District Court correctly concluded that County Superintendent Reynolds could properly consider the issue of whether Spivey’s termination was premature and that she properly determined that the termination was not premature because Spivey’s actions were patently unacceptable.

C. INSUBORDINATION

Finally, Spivey contends that the issue of insubordination was not remanded by the District Court and the County Superintendent did not have jurisdiction to consider evidence on insubordination. As stated earlier in this opinion, the “trial court” may consider any issues left open by the appellate court in further progress of the case and may proceed in all other respects as justice may require. Zavarelli, 779 P.2d at 493. The County Superintendent appropriately considered the issue of insubordination because there was substantial evidence that she left the school premises before the end of the school day, failed to attend board meetings and failed to supervise the students on the playground after a mandate to that effect had been issued. Insubordination, in itself, can be a reason for termination of a teaching contract. Ware v. Morgan Cty. School D. No. RE-3 (Col. 1988), 748 P.2d 1295; Siglin, 655 P.2d at 357.

In conclusion, County Decision II is supported by substantial credible evidence and the County Superintendent did not abuse her discretion in formulating her conclusions of law. The State Superintendent, however, erred in not affirming the County Superintendent’s decision and in substituting her own judgment for that of the County Superintendent. Finally, the District Court correctly reviewed the State Superintendent’s decision by focusing upon the County Superintendent’s findings and conclusions and concluding that County Decision II was supported by the record.

AFFIRMED.

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

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur in that part of the majority opinion which discusses the proper standard of review in a case like this which originated before the County Superintendent, and after an intermediate state level of review, was appealed to the State District Court.

However, I dissent from that part of the majority opinion which affirms the decision of the second County Superintendent because I conclude that it was contrary to the first District Court’s decision, exceeded the scope of issues to be decided on remand, and was contrary to the law of the case as established by the first District Court appeal.

In the first District Court opinion, Judge Gordon Bennett concluded that this case should be remanded to the County Superintendent for determination of whether there was good cause to support Spivey’s termination considering parents’ observations which were not considered in the first decision. However, he specifically held that loss of parental confidence did not establish good cause for termination, and that insubordination, since not raised on appeal, could not form the basis of Spivey’s termination.

He held that “good cause cannot be based on strictly external factors such as community hostility. Good cause can be based only on competent evidence regarding the actions or inactions of the teacher in question.”

With regard to insubordination, he held that:

Initially, we note that the County Superintendent did not make any finding or conclusion on the trustees’ allegation of insubordination and that the trustees did not assert this omission as error in the appeal to the State Superintendent. Nevertheless, the State Superintendent found that there was substantial credible evidence of insubordination. . . . Spivey has challenged this finding.
The Montana Supreme Court has stated explicitly that: “Findings of the reviewing agency properly cannot be included as facts when they are not part of the findings below.” Thus, we must reverse the State Superintendent on this issue. [Citation omitted]. This case was not remanded by the original District Judge to the

County Superintendent for further findings regarding insubordination. He concluded that because the Trustees had not appealed the failure of the original County Superintendent to find insubordination, that that issue could not be raised on appeal, and the absence of insubordination was a final determination.

However, on remand, the second County Superintendent based her decision to uphold the termination of Spivey on two conclusions: (1) “loss of confidence in the teacher;” and (2) “insubordination.” These conclusions were contrary to the law of the case as established by the District Court and should be reversed.

I also conclude that the second County Superintendent ignored the mandate from the District Court regarding the determination of whether or not Spivey’s termination was premature. The District Court concluded that Spivey had been given adequate notice that her playground supervision was deficient, and had been given an adequate opportunity to correct that aspect of her performance. However, the court went on to add that since the State Superintendent made no findings or conclusions regarding Spivey’s opportunity to correct other alleged deficiencies in her performance,

[w]e infer that he agreed with the County Superintendent that Spivey had not been given adequate opportunity to remedy these problems. Because there is rio disagreement, we will not review this issue and further affirm the County Superintendent’s conclusion that Spivey had not been given adequate opportunity to address the other problems.

In conclusion, the District Court held that:

Further, we have heard no argument and make no holding as to whether, in any event, Spivey’s termination was premature because she had not been given adequate opportunity to address the identified problems or whether her actions were so patently unacceptable that she could be termination [sic] without such an opportunity.

Based on these two conclusions by the District Court, the County Superintendent was left with two options. She could conclude that Spivey’s termination was justified based on inadequate playground supervision alone, or she could conclude, based on the additional evidence, that there was good cause for her termination based on other deficiencies in her performance, and that those deficiencies were “so patently unacceptable that she could be terminated without an opportunity to correct her inadequacies.” On remand, the second County Superintendent did neither. She did not base her conclusion that there was good cause for termination on inadequate playground supervision. She did conclude that Spivey’s conduct was patently unacceptable, but did not set forth the particulars in which it was patently unacceptable so that a reviewing court could determine whether or not Spivey’s conduct created a legal exception to the rule that tenured teachers are entitled to an opportunity to cure inadequacies in their performance. The only reasons given as justification for Spivey’s termination were loss of parental confidence and insubordination, which, for the reasons set forth previously, were beyond the scope of the issues to be considered by the County Superintendent on remand from the District Court.

For these reasons, I dissent from that part of the majority opinion which holds that the second County Superintendent did not abuse her discretion by exceeding the scope of her mandate from the District Court.

JUSTICE HUNT joins in the foregoing concurrence and dissent.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JEAROLD K. WILLIAMS, Defendant and Appellant.
    No. 93-052.
    Submitted on Briefs September 30, 1993.
    Rehearing Denied Jan. 28, 1994.
    Decided December 22, 1993.
    50 St.Rep. 1672.
    262 Mont. 530.
    866 P.2d 1099.

      For Defendant and Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Daniel L. Schwarz, Deputy County Attorney, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Jearold K Williams was charged by information in the District Court for the Thirteenth Judicial District in Yellowstone County with deliberate homicide, in violation of § 45-5-102(l)(a), MCA. On June 11,1992, after trial by jury, he was found guilty of the crime with which he was charged. He was subsequently sentenced to a term of imprisonment for 60 years at the Montana State Prison. Defendant appeals from his conviction. We affirm the judgment of the District Court.

The following issues are presented by defendant on appeal:

1. Did the District Court abuse its discretion when it denied defendant’s challenge to a juror for cause, and if so, did such abuse affect the outcome of defendant’s trial?

2. Did the District Court err when it refused to instruct the jury on the lesser included offense of mitigated deliberate homicide?

FACTUAL BACKGROUND

Defendant Jearold K. Williams was the legal guardian of, and had maintained a father and son type of relationship with Mark Reitler. According to the testimony at defendant’s trial, he and Reitler were also in the drug business together. Defendant was the supplier and Reitler was the distributor.

On November 23,1990, Reitler and two friends, David Wood and Fred Winters, went to defendant’s home where, without his permission, they borrowed several rifles and then went hunting on defendant’s property. During the course of that day, they consumed substantial amounts of drugs, including methamphetamines, crank, and marijuana.

At about 5:00 or 5:30 p.m., Reitler and his companions finished hunting, went back to defendant’s house, and returned the guns. While there, Reitler and defendant became involved in an argument over money that defendant said Reitler owed him for the sale of drugs. Defendant referred to the money as his profits and demanded that he be paid. When Reitler became angry with defendant, he and his companions left defendant’s home. They dropped Winters off, and the other two went to Reitler’s home.

When Reitler and his companion arrived at the mobile home in which Reitler lived, a number of people were present. Most of them had come there to purchase drugs and were waiting for Reitler to return home.

Reitler went to the back room of the mobile home where he and two other companions smoked some marijuana. While Reitler and two others smoked marijuana in the back bedroom, several others waited in the living room, which was toward the front end of the mobile home, with the intention of purchasing drugs.

The description of what happened next is consistent among all nine survivors who were present in the mobile home and who testified at trial.

Shortly after Reitler arrived home, defendant came to the home, visited shortly with the people assembled in the living room, and then went to the back of the home where Reitler was located. After they were there for a short period of time, they emerged and moved to the kitchen, which was adjacent to the living room, where they argued about money that defendant complained he was owed by Reitler.

Reitler gave defendant an envelope full of money which he claimed included $2000, and demanded that defendant count it. Apparently, according to statements made at that time, the payment was $95 short of the amount Reitler owed defendant, but he said he would pay the balance the following day. He then told defendant to leave the home.

Defendant, who owned the mobile home and rented it to Reitler, said that he did not have to leave because it was his mobile home. The argument escalated and Reitler picked up the telephone to call the police. At that point, the two became involved in a shoving match and defendant said he was going to his car to get his gun. After defendant left the home through the front porch door, Reitler locked the door, tried to block it with a board, and went to the back of the trailer where he retrieved his rifle.

At about that time, the witnesses in the mobile home heard a shot from outside. One witness, who was located outside, said he observed Williams at the front door shooting into the door with his pistol.

When the shot from outside was heard, Reitler told the others who were present to get to the back of the mobile home. Some went to a bedroom located near the rear of the home. Others went out the back door. Apparently Reitler’s call had gotten through to a 9-1-1 switchboard service, which immediately recorded what happened thereafter. The State and defense stipulated at trial that the following conversation was recorded from the Reitler home: ‘Mark, see these? These are fucking real. Put the gun down or I will blow your fucking head off.”

Those witnesses who had been present, but were now hiding in either the front bathroom or one of the two back bedrooms, heard several shots fired from defendant’s pistol, and then either saw or heard two shots fired by Reitler as he attempted to retreat through the back door. The testimony was uncontradicted that several shots were heard before Reitler was observed firing his rifle. Later, investigation established that only two shots were ever fired from Reitler’s rifle.

After the shooting stopped, those present went to the back door and found Reitler lying on the ground next to the back steps. Efforts to resuscitate him were unsuccessful, and he died from a bullet wound which was later determined to have been inflicted from the Ruger .357 Magnum owned by defendant.

Following the shoot-out, defendant was observed by at least one person from outside the home getting in a car with a pistol in his hand and speeding away.

Later that night he was arrested alongside Interstate 90 west of Billings, where his vehicle had run out of gas. The Ruger .357 Magnum, which was later identified by forensics experts as the weapon which killed Reitler, was found in the back seat of his car.

Several witnesses testified that when defendant arrived at Reitler’s home on the evening of the shoot-out he stated that he wanted his money and if he did not get it, somebody was going to get killed. He stated that the bad part was that it was going to be his son. Defendant often referred to Reitler as his son.

On November 29,1990, the State moved for and received leave to file an information in the District Court for Yellowstone County charging defendant with deliberate homicide for purposely and knowingly causing the death of Mark Reitler when he shot him on November 23, 1990. After three days of trial, the jury returned its verdict, finding defendant guilty of deliberate homicide.

I.

Did the District Court abuse its discretion when it denied defendant’s challenge to a juror for cause, and if so, did such abuse affect the outcome of defendant’s trial?

During jury selection, the fifteenth juror called was Kathryn Matujsiak. In response to questions, she stated that she knew Mitch Moe, the Highway Patrolman who arrested defendant. She admitted that if he was called as a witness, her relationship with him might interfere with her impartiality. However, when advised that his testimony would not be controversial, she stated that her familiarity with him would probably not affect her ability to be fair.

Later during the examination of the jury, the same juror stated that she had been a juror in another homicide trial a couple of months earlier, and that based on that experience, it would be hard for her to presume defendant was innocent. She also stated that she remembered reading about the case in the paper, that based on what she had read, she had formed a previous opinion about the case, and that that opinion might also affect her ability to be fair and impartial. In summary, Ms. Matuj siak was asked the following question by defense counsel, and gave the following answer:

Q. The fact that you know Officer Moe, you may be more ready to believe his testimony. The fact you have been through another homicide, it is hard to give the defendant the presumption of innocence, and based upon the fact that you may have formed an opinion based on what you have read in the news, do you think you could give my client, Mr. Williams, a fair trial?
JUROR: I don’t think so.
MR. BEVELDON: You couldn’t set that aside?
JUROR: It’s a lot to set aside.

Based on those questions and answers, defendant asked to remove Ms. Matujsiak from the jury panel for cause. The attorney for the State had no objection to doing so. The District Court, however, then made the following effort to rehabilitate this juror:

THE COURT: Well, Ms. Matujsiak throughout the trial, if you are chosen to sit on the case, I would be instructing you that it is your duty not to converse among yourselves or to talk to anyone, or permit anyone else to discuss it with you, the subject of the trial, nor form or express an opinion about the case until it was finally submitted to you. You’re not telling the court that you would disregard that instruction if I gave it to you, would you?
JUROR: No.
THE COURT: In fact, the law requires me to give you that instruction every time we recess.
JUROR: I remember that.
THE COURT: And you kept an open mind that time?
JUROR: Yes.
THE COURT: Even though it was difficult?
JUROR: Right.
THE COURT: That is what you would you do this time, would you not? JUROR: Uh-huh.
THE COURT: All right, the motion is denied.

The law, with regard to challenging jurors for cause, is set forth at § 46-16-115, MCA, where it provides in relevant part:

(1) Each party may challenge jurors for cause, and each challenge must be tried by the court.
(2) A challenge for cause may be taken for all or any of the following reasons or for any other reason that the court determines:
(e) having served on a trial jury that tried another person for the offense charged or a related offense;
(j) having a state of mind in reference to the case or either of the parties that would prevent the juror from acting with entire impartiality and. without prejudice to the substantial rights of either party.

When a juror has been challenged for cause and that challenge is denied, our standard for review of the district court’s denial is whether the district court abused its discretion. We have previously set forth the following rule, which is applicable in this case:

It is a difficult matter at best to ascertain the real state of mind of a prospective juror with respect to detecting the existence of bias or prejudice against one accused of crime. For that reason this court has said (State v. Russell, 73 Mont. 240, 249, 235 Pac. 712, 715) that the determination of the qualification of a juror to serve in a case before the court “must be left largely to the sound discretion of the trial court.” Again, in State v. Huffman, 89 Mont. 194, 296 Pac. 789, 790, this court said: "... the trial court is the judge of the weight to be given to the testimony adduced on a voir dire examination.” Trae, there are cases holding that when a witness has once admitted bias, his subsequent statements that he can consider the evidence impartially should be viewed with caution. But granting the need for careful scrutiny of the testimony of a witness who has first said “no” and then said “yes,” it still remains the province of the trial court to decide where the truth lies and with that determination the appellate court will not interfere unless a clear abuse of discretion is shown. State v. Russell, supra.

State v. Allison (1948), 122 Mont. 120, 129-30, 199 P.2d 279, 285-86.

In this case, the challenged juror candidly and repeatedly expressed her concern about her ability to be impartial in this case. She had not one, but several reasons. She was a close friend of the arresting officer. The incident had occurred in her neighborhood. She read about it and had formed an opinion. Finally, she had served as a juror in a recent homicide trial, which by itself was sufficient statutory ground for her disqualification.

In the face of these admissions of bias, the District Court’s rehabilitation of this witness was, at best, unpersuasive, and at worst, threatening. She was told that she would be instructed not to form an opinion, and then asked if she would disregard the instructions of the court. New people would show the kind of contempt for a judicial officer that would have been necessary to persist in her admissions of bias under those circumstances.

The court’s efforts to rehabilitate this witness were especially unnecessary in light of the fact that the State had no objection to her disqualification and that another could have easily been called to take her place. We conclude that the District Court abused its discretion by denying the defendant’s challenge to Kathryn Matujsiak for cause. She should have been excused based on both subsections (e) and (j) of § 46-16-115(2), MCA.

However, finding that the District Court abused its discretion is not the end of our inquiry. Criminal convictions will not be reversed on appeal because of error committed by the trial court unless the error was prejudicial. Section 46-20-701, MCA.

In this case, because defendant’s challenge for cause was denied, the objectionable juror was removed from the jury by use of defendant’s first peremptory challenge. Furthermore, defendant exhausted all six of his peremptory challenges.

Section 46-16-116, MCA, provides that in non-capital cases, both the defendant and the State are entitled to six peremptory challenges. However, those challenges are in addition to the challenges for cause that are provided for in § 46-16-115, MCA. When jurors who should have been removed for cause are not removed and must, therefore, be removed by peremptoiy challenge, the party whose challenge for cause was wrongfully denied effectively loses one of the peremptory challenges provided for by law. In other words, the effect of the District Court’s abuse of discretion in this case was to reduce defendant’s number of peremptory challenges to five, rather than six.

A number of jurisdictions have held that where a district court abuses its discretion by denying a challenge to a juror, the error is prejudicial. For example, in Jenkins v. Parrish (Utah 1981), 627 P.2d 533, 536-37, the Utah Supreme Court held that:

Mrs. Eddins’ admissions of expressed bias in the instant case should have resulted in a successful challenge for cause pursuant to Rule 47(f)(6). Forcing plaintiff to use one of his peremptory challenges to remove the juror resulted in prejudicial error. See Crawford v. Manning [(Utah 1975), 542 P.2d 1091]. As stated in Wasco v. Frankel, 116 Ariz. 288, at 290,569 P.2d 230, at 232 (1977):
Peremptory challenges form an effective method of assuring the fairness of a jury trial. Hence, forcing a party to use his peremptory challenges to strike jurors who should have been stricken for cause denies the litigant a substantial right.

See also, Patterson v. State (Wyo. 1984), 691 P.2d 253; People v. Prator (Colo. App. 1992), 833 P.2d 819.

However, we decline to adopt the rule that an abuse of discretion in denial of a challenge to a juror is conclusively prejudicial and requires automatic reversal. Instead, to be consistent with our previous decisions, we hold that when a district court abuses its discretion by denying a challenge for cause to a prospective juror; where the party who objected to the juror is then required to use one of his or her peremptory challenges to remove the juror; and where that party uses all of his or her peremptory challenges; there is a presumption that the district court’s error was prejudicial. That presumption must, however, be balanced against the totality of the circumstances in each case to determine whether the error contributed to the defendant’s conviction. We arrive at this conclusion based on our previous decision in Brodniak v. State (1989), 239 Mont. 110, 779 P.2d 71. In that case, when considering whether inadmissible evidence was prejudicial, we stated that:

In Montana, an error of state law will be deemed harmless “unless the record shows that the error was prejudicial.” Section 46-20-701, MCA. “The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the verdict.” State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266; State v. Gray (1983), 202 Mont. 445, 449-450, 659 P.2d 255, 257; State v. LaVe (1977), 174 Mont. 401, 407, 571 P.2d 97, 101.

Brodniak, 779 P.2d at 73-74.

We will apply the same standard when reviewing errors committed during jury selection.

We stated in Brodniak, 779 P.2d at 74, that “[t]he essential question is whether there is a reasonable possibility that the admissible evidence might have contributed to the conviction.”

In making that determination, we applied what was referred to as the “overwhelming evidence rule.” We held that:

The overwhelming evidence rule is one method used by this Court to ascertain whether there is a reasonable possibility that the inadmissible evidence contributed to the verdict. State v. McKenzie (1980), 186 Mont. 481, 533, 608 P.2d 428, 458, cert. denied, 449 U.S. 1050, 101 S. Ct. 626, 66 L. Ed. 2d 507 (1980); accord, Tevlin v. People (Colo. 1986), 715 P.2d 338, 342. Also, when assessing the prejudicial effect of an error, this Court will examine the totality of the circumstances in which the error occurred. See Gray, 207 Mont. at 268, 673 P.2d at 1266. If the error involves erroneously admitted evidence, we will not single out that one item of evidence to evaluate it in isolation. To do so could magnify the prejudicial effect of the error beyond its actual impact on the verdict, leading to reversals for mere technical violations of evidentiary rules.

Brodniak, 779 P.2d at 74.

Likewise, in this case, while we conclude that the District Court abused its discretion by denying defendant’s challenge of the juror for cause, and while we start with the presumption that its abuse of discretion was prejudicial, we cannot consider that error in isolation, but must put it in the context of the entire trial.

In this case, the evidence which led to defendant’s conviction was basically uncontradicted. It was established that he had an argument with the victim over the profits from drug transactions. He went to the victim’s home, where he announced on his arrival that if he did not receive his money someone was going to get killed. The argument was continued and escalated. The victim threatened to call the police. In response, defendant went to his vehicle and obtained a gun. He returned to the home, broke in, and shot the victim.

All of the above occurred in the presence of at least nine witnesses who testified at trial and whose testimony was consistent in all important respects. No witnesses were called by defendant, and none of this evidence was rebutted. None of the State’s evidence was admitted over objection by the defendant and there was no objection to any jury instruction offered by the State. In short, the prosecutor in this case tried a textbook case, free from prejudicial or irrelevant considerations, and the result should not be casually set aside based on error by the District Court in which the prosecution played no part.

After a careful review of the record, it is difficult to conclude that any different result could have occurred if defendant had had six peremptory challenges to the jury, rather than five. We hold that there is no reasonable possibility that the District Court’s denial of defendant’s challenge for cause to Kathryn Matujsiak contributed to defendant’s conviction for deliberate homicide.

For future guidance, we wish to emphasize that the purpose of § 46-16-116, MCA, is to assure that both the State and the defendant have the same number of peremptory challenges to a jury panel which has already passed scrutiny for cause under § 46-16-115, MCA. When that equal opportunity has been denied, we will not require a defendant to prove the impossible. Prejudice will be presumed. Therefore, when voir dire examination discloses a serious question about a juror’s ability to be fair and impartial, that question should be resolved in favor of excusing that juror. The role of the District Court is not to simply establish some record from which a future argument can be made that the juror recanted his or her admission of bias.

WThile there may be some temporary inconvenience to the court and to the parties from excusing a juror for cause, that inconvenience is minor compared to the expense and inconvenience that results from having to retry criminal cases.

Even though the District Court’s error did not result in reversal of this case, we emphasize that the facts in this case are unique and the results in this case should not lead to the conclusion that similar irregularities during jury selection will not lead to reversal of successful prosecutions in the future.

II.

Did the District Court err when it refused to instruct the jury on the lesser included offense of mitigated deliberate homicide? Section 45-5-103, MCA, provides:

(1)A person commits the offense of mitigated deliberate homicide when he purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the actor’s situation.
(2) It is an affirmative defense that the defendant acted under the influence of extreme mental or emotional stress for which there was reasonable explanation or excuse, the reasonableness of which shall be determined from the viewpoint of a reasonable person in the actor’s situation. This defense constitutes a mitigating circumstance reducing deliberate homicide to mitigated deliberate homicide and must be proved by the defendant by a preponderance of the evidence.
(3) Mitigated deliberate homicide is not an included offense of deliberate homicide as defined in 45-5-102(l)(b).
In State v. Heit (1990), 242 Mont. 488, 791 P.2d 1379, we held that: Generally, “a defendant is entitled to instructions on lessor [sic] included offenses if any evidence exists in the record which would permit the jury to rationally find him guilty of a lessor [sic] offense and acquit him of a greater.” State v. Thornton (1985), 218 Mont. 317, 320, 708 P.2d 273, 276[ ] (quoting State v. Ostwald (1979), 180 Mont. 530, 538, 591 P.2d 646, 651). Under this rule, in order to find Heit guilty of a lesser offense, Heit had to present some evidence supporting the elements of mitigated deliberate homicide as set forth in § 45-5-103, MCA. Thus, Heit was required to offer some evidence demonstrating that he acted under “extreme mental or emotional stress for which there is a reasonable explanation or excuse.” Thornton, 708 P.2d at 276, § 45-5-103, MCA. The defendant contends that the evidence received at trial demonstrated that there was a struggle over the gun, and that Mr. Heit was agitated and completely intoxicated, and that this evidence was sufficient to warrant instructing the jury on the lesser included offense.
This contention lacks merit. While this evidence indicates that Mr. Heit may have been upset at the time the crime was committed, it does not support a finding of “extreme mental or emotional stress for which there is reasonable explanation or excuse.” Section 45-5-103(1), MCA. Nor were there any allegations made that there was a reasonable explanation or excuse for Heit’s alleged stress other than testimony indicating that the bartender may have said something that made Heit angry. ... Having presented no credible evidence of mitigation and furthermore having espoused the theory in closing argument that he did not kill the deceased, Heit was not entitled to an instruction on mitigated deliberate homicide as a lesser included offense. [Citations omitted].

Heit, 791 P.2d at 1382.

In this case, defendant offered an instruction on the lesser included offense of mitigated deliberate homicide. The State had no objection to such an instruction, and in fact, offered one of its own for the stated purpose of protecting the record. However, the District Court concluded that there was no evidence of mitigation, and therefore, that such an instruction was inappropriate. After thoroughly reviewing the record, we agree.

All of the testimony regarding defendant’s demeanor when he arrived at Reitler’s home came from the State’s witnesses. He was variously described as “kind of upset,” “mad,” “kind of drunk,” and “angry.” However, as we have previously held in Heit, simply being angry or intoxicated would not support a finding of “extreme mental or emotional stress for which there is a reasonable explanation or excuse.” Nor was there any reasonable explanation given for defendant’s anger which led to his altercation with Reitler. The uncontroverted evidence was that it was based on a disagreement over drug profits, and Reitler’s request that defendant leave his home.

We conclude, as a matter of law, that there was insufficient evidence in the record of this case to permit a jury to rationally find defendant guilty of the lesser included offense of mitigated deliberate homicide, and that the District Court did not err by refusing to give defendant’s proposed instruction on that offense.

For the reasons set forth above, we affirm the judgment of the District Court.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARK EMERSON PECK, a/k/a MARK LEE, Defendant and Appellant.
    No. 93-178.
    Submitted on Briefs August 19, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1692.
    263 Mont. 1.
    865 P.2d 304.

      For Appellant: Mark Emerson Peck, Pro Se, Deer Lodge.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Robert M. McCarthy, Silver Bow County Attorney, Brad Newman, Deputy County Attorney, Butte.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant/Appellant, Mark Emerson Peck, appeals pro se from an order of the Second Judicial District Court, Silver Bow County, dismissing his petition for post-conviction relief on the grounds that he failed to state a claim for relief, and denying his motion for appointment of counsel for a hearing on the petition.

We affirm.

1. Did the District Court err when it denied appellant’s petition for post-conviction relief and assistance of counsel for a hearing on the petition, pursuant to § 46-21-201(1) and (2), MCA?

2. Did appellant’s sentence and condition of parole ineligibility violate the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment?

On November 21, 1991, a deputy county attorney of Silver Bow County charged appellant by information with attempted burglary and burglary. On January 9, 1992, appellant entered a plea agreement in which he pled guilty to the count of attempted burglary. In exchange, the State agreed to dismiss the burglary count, abandon pursuit of a persistent felony offender designation, and recommend a five-year sentence to rim concurrently with any sentence imposed upon revocation of his suspended sentence on a separate charge. The District Court accepted the plea agreement pursuant to § 46-12-211, MCA. Sentencing was set for February 5, 1992, but appellant failed to appear at the hearing. On June 16,1992, authorities apprehended him. On June 25, 1992, at his rescheduled sentencing hearing, appellant moved the District Court to withdraw his guilty plea on the grounds that “his best interests would be served” because he believed he would be facing additional charges. The District Court denied his motion to withdraw his guilty plea, sentenced him to ten years at the Montana State Prison, and after stating specific reasons, ordered him ineligible for parole or participation in a supervised release program.

The record reveals no evidence that appellant attempted to perfect an appeal within 60 days of the judgment of June 25,1992. Rule 5(b), M.R.App.P. On January 19,1993, appellant filed in the District Court both a petition for post-conviction relief and a motion for appointment of counsel for a hearing on the petition. In his petition, appellant asserted that the court’s designation of him as ineligible for parole was cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because the sentence was disproportionate to the offense charged. Additionally, appellant asserted that he had insufficient funds with which to hire an attorney regarding the petition. On February 8,1993, the State filed a brief in opposition to appellant’s petition for post-conviction relief. On March 1, 1993, pursuant to § 46-21-201(1) and (2), MCA, the District Court dismissed the petition and denied appellant’s motion for appointment of counsel because a hearing on the petition was not required. On March 15, 1993, appellant filed an appeal with this Court.

I.

Did the District Court err when it denied appellant’s petition for post-conviction relief and assistance of counsel for a hearing on the petition, pursuant to § 46-21-201(1) and (2), MCA?

Section 46-21-201, MCA, in part, governs the court’s actions in proceedings on petitions for post-conviction relief and provides as follows:

Unless the petition and the files and records of the case conclusively show that the petitioner is not entitled to relief, the court shall cause notice of the petition to be served upon the county attorney in the county in which the conviction took place and upon the attorney general and order them to file a responsive pleading to the petition. Following its review of the responsive pleading, the court may dismiss the petition as a matter of law for failure to state a claim for relief or it may grant a prompt hearing on the petition, determine the issue, and make findings of fact and conclusions with respect to the petition.

Apetitioner’s burden, when requesting post-conviction relief, is to show by a preponderance of evidence that the facts justify relief. Yother v. State (1979), 182 Mont. 351, 355, 597 P.2d 79, 82; Matter of Jones (1978), 176 Mont. 412, 415, 578 P.2d 1150, 1152. The District Court concluded that appellant had not met this burden when he failed to show by a preponderance of evidence that the imposed sentencing condition justified relief. The court based its decision upon its review of the petition, the State’s brief in opposition, appellant’s reply brief, and the entire record. The court then cited § 46-18-202(2), MCA, authorizing designation of appellant as ineligible for parole, and in support of the sentencing condition, noted appellant’s extensive criminal history and his previous failure to comply with the law while on supervised release. The reasons set forth by the District Court are well-reasoned and supported by the record. Pursuant to § 46-21-201(1), MCA, the court properly denied the petition for post-conviction relief because it did not state a claim for relief.

The court also properly denied appellant’s motion for assistance of counsel for a hearing on the petition for post-conviction relief. Section 46-21-201(2), MCA, provides that:

If a hearing is required or the interests of justice require, the court shall appoint counsel for a petitioner who qualifies for the appointment of counsel under Title 46, chapter 8, part 1.

The court declined to appoint counsel for a hearing on appellant’s petition because, after review of the petition, the briefs, and the record, it determined that a hearing was not required. The court properly denied appointment of counsel for a hearing on the petition for post-conviction relief.

II.

Did appellant’s sentence and condition of parole ineligibility violate the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment?

In State v. Austad (1982), 197 Mont. 70, 100, 641 P.2d 1373, 1389, we held that a sentence which falls within the maximum statutory guideline does not violate the Eighth Amendment prohibition against cruel and unusual punishment (citing Matter of Jones (1978), 176 Mont. 412, 420, 578 P.2d 1150, 1154), and review properly lies with the Sentence Review Division, (citing State v. Metz (1979), 184 Mont. 533, 537, 604 P2d 102, 104). See also State v. Valcourt (1992), 254 Mont. 174, 835 P.2d 753; State v. Watson (1984), 211 Mont. 401, 423-24, 686 P.2d 879, 890-91. At sentencing, the District Court determined that appellant entered his plea voluntarily and knowingly. The court then sentenced appellant to ten years at the Montana State Prison and imposed the condition that he be ineligible for parole or participation in a supervised release program.

The court properly sentenced appellant. The statutory maximum penalty for attempted burglary is imprisonment for 20 years or a $50,000 fine, or both. Sections 45-6-204 and 45-4-103(3), MCA. Here, the ten-year sentence imposed by the court was less than the statutory maximum, and appellant received no fine. Just as important, the District Court properly imposed the restriction that appellant be ineligible for parole or a supervised release program. Section 46-18-202(2), MCA, provides that:

Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the court may also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. If the court finds that the restriction is necessary for the protection of society, it shall impose the restriction as part of the sentence and the judgment shall contain a statement of the reasons for the restriction.

See also State v. Evans (1991), 247 Mont. 218, 806 P.2d 512; State v. Stumpf (1980), 187 Mont. 225, 609 P.2d 298. Here, the court provided specific reasons for imposing the restriction: appellant’s extensive history of criminal behavior; his demonstrated inability to conform to the law while under parole or probation supervision; and the need to protect society.

In sum, we hold that the District Court’s imposition of this sentencing condition is not cruel and unusual punishment..

We affirm.

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


text:
    STATE OF MONTANA, Plaintiff, vs. BARRY TODD LAVANWAY, Defendant.
    NO. DC-91-184(B)
    DATED this 12th day of March, 1993.
    DECISION
   On April 27,1992, the Defendant was sentenced to ten (10) years for Issuing a Bad Check; ten (10) years for Felony Theft. Those terms are to be served consecutively with credit being given for 207 days served. The Defendant shall pay a total of $12,601.41 in restitution to the victims of these crimes.

On March 12, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matthew J. Sisler, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, the restitution shall be removed. All other portions of the sentence shall be affirmed.

The reason for the removed of the restitution is based upon State v. Mazurkiowicz, 245 Mont. 172,_P.2d__(1990).

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Matthew J. Sisler, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. KATHERINE ANN MANY HORSES, Defendant.
    NO. 9724
    DECISION

      DATED this 11th day of March, 1993.
   On February 6,1992, the Defendant was sentenced to forty (40) years for Mitigated Deliberate Homicide and it is the recommendation of the Court to the Parole Board that prior to eligibility for parole the Defendant shall complete the chemical dependence program, all social skills and vocational training at the Women’s Correctional Facility. Credit is given for 252 days time served.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Patricia Day-Moore, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Patricia Day-Moore, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID FOREST BOWER, Defendant.
    NO. 9434
    DECISION
   On September 16, 1991, the Defendant was sentenced to fifteen (15) years for Aggravated Assault. Credit is given for ninety (90) days time served. The Defendant shall be designated a dangerous offender for the purposes of parole.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Bevra J. Jacobson, Legal Intern from the Montana Defender Project. The state was represented by Karen Townsend, Deputy County Attorney from Missoula, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

DATED this 11th day of March, 1993.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Bevra Jacobson, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court. The Court also wishes to thank Karen Townsend for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS ALAN AUL, Defendant.
    NO. 9292
    DECISION
   On September 9, 1991 the Defendant was sentenced to Count I, twenty (20) years for Criminal Possession of Dangerous Drugs with Intent to Sell; Count II, five (5) years for Criminal Possession of Dangerous Drugs; Count III, six (6) months in the Missoula County Jail for Criminal Possession of Drug Paraphernalia, a Misdemeanor; Count I and II shall run consecutive with each other and Count III shall run concurrent with the sentences imposed in Count I and II. It is recommended that the Defendant should be transferred to the forensic unit at the Montana State Hospital at Warm Springs, Montana, for at least sixty (60) days prior to his actual incarceration at the Montana State Prison because the Defendant is a suicide risk. The Court hereby imposes a fine in the amount of Fifty Thousand Dollars ($50,000.00) on Count I, according to a schedule as set by his Probation Officer. The Defendant shall pay the costs of prosecution in the amount of One Thousand Seven Hundred Seven and 52/100 Dollars ($1,707.52), according to a schedule as set by his Probation Officer. The Defendant shall pay the jury and witness costs the amount of Two Thousand Eight Hundred Fifty-one Dollars ($2,851.00), according to a schedule as set by his Probation Officer. The Defendant shall received credit for time served in the amount of seventy-three (73) days.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. The state was represented by Karen Townsend, Deputy County Attorney from Missoula, Montana.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

DATED this 11th day of March, 1993.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court. The Board also wishes to thank Karen Townsend for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA Plaintiff, vs. JAMES ALLEN, Defendant.
    NO. DC-90-011
    DATED this 11th day of March, 1993.
    DECISION
   On April 6,1992, the Defendant was sentenced to life at the Montana State Prison for Deliberate Homicide. It is further ordered that the defendant be ineligible for any parole or participation in any supervised release program as he is a danger to society and shall he designated as a dangerous offender.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Gary Ryder, Deputy County Attorney from Richland County.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Mr. Alen for his appearing on his own behalf. The Board also wishes to thank Gary Ryder for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. KENNETH YOTHER, Defendant.
    NO. 3392
    DATED this 11th day of March, 1993.
    DECISION
   On May 21, 1991 the Defendant was sentenced to twenty (20) years with five (5) years suspended for Sexual Intercourse Without Consent; plus nine specific conditions listed in the Judgment including Dangerous Designation.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Kenneth Yother for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD RENARD NASH, Defendant.
    NO. Dc-91-73
    DECISION
   On April 30,1992, the Defendant was sentenced to fifteen (15) years with five (5) years suspended on each of five counts of Burglary. The sentences are to run concurrently. During the suspended portion of the sentence, the defendant shall be on probation supervised by the Office of the Adult Parole and Probation. The Defendant will also be subject to the following additional conditions:

1. The defendant shall make restitution for the burglaries in the amount that shall be determined by the Court at a hearing to be held at a later date.

2. The defendant shall receive a mental health evaluation, and shall follow all recommendations of the counselor.

DATED this 11th day of March, 1993.

3. The defendant shall receive a drug and alcohol evaluation and shall follow all recommendations of the counselor.

4. The defendant shall not consume alcohol, nor shall he enter any establishment where the sale of alcohol is the primary business.

5. The defendant shall submit to test of his blood, breath, or urine at any time upon the request of his probation officer to determine his compliance with the conditions of this order.

The defendant shall receive credit for 170 days served. The defendant was specifically advised by the Court that failure to comply with the conditions of probation imposed by the Court or by this probation officer could result in the revocation of the suspended portion of his sentence.

On March 11, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Carl White, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to ten (10) years with five (5) years suspended on each count of Burglary with all sentences to be served concurrently. All other portions of the sentence shall remain the same as originally imposed.

The reason for the decision is to bring the defendant’s sentence more in line with that of the Co-Defendant and for uniformity of the sentence.

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Carl White, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.