text:
    MARLOWE MEHL, Plaintiff and Respondent, v. EUGENE MEHL, Defendant and Appellant.
    No. 89-327.
    Submitted on Briefs Jan. 11, 1990.
    Decided Feb. 13, 1990.
    786 P.2d 1173.

      David L. Irving, Glasgow, for defendant and appellant.
    Kevin T. Sweeney, Billings, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an action to dissolve a partnership. Defendant, Eugene Mehl appeals from an order of the District Court of the Fifteenth Judicial District, Sheridan County, which distributed property owned by a partnership operated by Eugene Mehl and the plaintiff, Marlowe Mehl. We affirm.

The issues on appeal are:

1. Whether the District Court erred by allowing Marlowe Mehl to claim his children’s wages as a partnership expense.

2. Whether the District Court erred by denying Eugene Mehl’s claim for wages in compensation for winding up the partnership affairs.

3. Whether the District Court erred by finding the Dagmar Bar as a partnership asset, and whether an error was committed in valuing the bar at $50,000.

4. Whether the District Court’s order distributing the partnership assets is incorrect, inconsistent and not supported by the evidence.

Eugene and Marlowe Mehl are brothers. Since 1950, they have operated the family farm as a partnership known as “Mehl Brothers” or “Mehl Farms.” The partnership operated without a written partnership agreement and it had no definite term. Property held by the partnership consisted primarily of farming equipment and machinery. The partnership did not own any real property, but it leased land from the family and from other people.

All proceeds were deposited in a checking account at a local bank and expenses were paid from that account. The brothers had agreed to split all profits on a fifty-fifty basis. Whenever money was needed by either partner, the practice was that he would tell the other and withdraw such money.

Initially, each partner was active in the farming business. Eugene took care of most of the day to day chores and Marlowe and his wife, in addition to helping Eugene, took care of the partnership books. However, in 1972 Marlowe Mehl suffered a stroke, and as a result was unable to fully contribute to the day to day activities on the farm. Some of his children were hired from time to time, in order to perform necessary chores.

In 1973, Eugene Mehl withdrew $7,200 from the partnership account and bought the Dagmar Bar located in Dagmar, Montana. The warranty deed and the liquor license to the bar were held in the names of Eugene Mehl and his wife, Bonnie. In 1980, Eugene and Bonnie were divorced and Bonnie received the bar and liquor license as part of the property settlement.

The partnership dissolved on November 21, 1983 by written notice from Marlowe Mehl to Eugene Mehl. The following month, Marlowe filed a complaint in District Court. A special master was appointed to assist the court in a partnership distribution. The lower court, relying upon the report prepared by the master, issued its order distributing the partnership property on January 20, 1989. Eugene Mehl submitted a motion to amend the court’s order on January 25, 1989. The lower court denied this motion and this appeal followed.

I

Prior to addressing the four separate specifications of error asserted by Eugene Mehl, we first discuss the standard of review to be applied by this Court to the District Court order winding up the Mehl Brothers partnership.

The District Court conducted this proceeding without a jury. The function of this Court, acting as an appellate tribunal in reviewing the determination of the District Court, is not to substitute its judgment for the District Court but to determine whether there is substantial credible evidence to support its determination. Although there may be conflicting evidence, if the record contains substantial evidence for which the District Court determination can be grounded, the District Court must be affirmed. Eliason v. Wallace (1984), 209 Mont. 358, 680 P.2d 573.

As his first specification of error, Eugene Mehl argues that the lower court erred in its finding that the wages paid to Marlowe Mehl’s children were partnership expenditures. According to Eugene, Marlowe’s children were hired after Marlowe’s stroke and only because he was unable to do his share of the work. Therefore, Eugene argues, their wages should be deducted from Marlowe’s capital account and should not be considered a partnership expense.

The District Court disagreed with this argument. It took judicial notice of the fact that farm children are often hired to do work on the family farm. This arrangement normally benefits the farmer in two ways — his children earn a wage and the wages are deducted as a business expense on the farm’s tax returns.

This arrangement took place on the Mehl Brothers farm. Marlowe’s children were hired to do certain chores and the partnership deducted the wages as a business expense. Moreover, as Eugene himself testified, there was an agreement between he and Marlowe to pay the children a wage. Therefore, in light of the fact that Eugene acquiesced to this arrangement and the fact that he enjoyed the resultant tax advantage, we hold that the District Court did not err in its determination that the wages were a proper partnership expense.

II

The second issue on appeal concerns the claim by Eugene Mehl for wages which he claims are due him for winding up the partnership. In support of his argument that he is entitled to such wages, he relies upon sec. 35-10-401(6), MCA.

His reliance upon this statute is ill founded. Section 35-10-401(6), MCA, states in pertinent part:

“No partner is entitled to remuneration for acting in the partnership business, except that a surviving partner is entitled to reasonable compensation for his services in winding up the partnership affairs.” (Emphasis added.)

This statute is clear. In the absence of any agreement to the contrary, partners are not entitled to any wages unless one of the partners dies and the surviving partner winds up the partnership. In the present case, Marlowe Mehl did not die. Furthermore, there is no partnership agreement entitling Eugene Mehl to any wages for his work winding up the partnership. The District Court, following the mandate of this statute, held that Eugene was not entitled to his claimed wages. Its determination of this issue is correct.

Ill

Eugene Mehl contends it was reversible error for the District Court to treat the Dagmar Bar as a partnership asset, and it was reversible error to assign a $50,000 value to the bar. We disagree.

Section 35-10-203(2), MCA, states:

“Unless a contrary intention appears, property acquired with partnership funds is partnership property.”

The record shows that Eugene purchased the Dagmar Bar with two checks written on the partnership account. Therefore, the burden is on him to show that the bar did not belong to the partnership.

Documentation of ownership of the bar was submitted by both parties. Eugene Mehl submitted the warranty deed and liquor license to the bar which were in his and his wife’s name. He also entered into evidence bank statements, employment registrations and other financial records which tended to indicate that he was the owner of the bar.

Marlowe Mehl submitted tax records and the property, settlement between Eugene and his ex-wife Bonnie, which stated that the bar was partnership property. The lower court reviewed the evidence submitted by both parties and determined that the evidence submitted by Eugene did not overcome the presumption contained in sec. 35-10-203(2), MCA.

We acknowledge, however, that the evidence on this issue is conflicting. In light of the presumption created by sec. 35-10-203(2), MCA, and in light of the evidence of ownership contained within the tax records and property settlement, we find there is substantial evidence for the court’s findings and there is no abuse of discretion. Accordingly, the District Court’s findings must be affirmed.

Eugene Mehl also takes exception to the valuation of the bar as determined by the lower court. The District Court valued the bar at $50,000, and charged Eugene’s capital account accordingly. Eugene maintains that the bar is worth substantially less and places a value on it of only $10,000 — $15,000.

In coming to its conclusion, the District Court relied upon the special report prepared by the master. On issues decided by a special master, the District Court must accept the master’s determination unless it is clearly erroneous. Rule 53(e)(2), M.R.Civ.P.

The master utilized three approaches in arriving at his valuation of the bar. In particular he evaluated the bar by examining the income it generates, the value placed upon it in Eugene’s divorce action and by examining other similar bars in close proximity to Dagmar. The master’s report is well reasoned and the value placed on the bar is clearly not erroneous. Therefore, the District Court was obligated to accept his valuation. On this issue the lower court is affirmed.

IV

As a final issue, Eugene Mehl argues that the trial court’s distribution of partnership assets is not supported by the evidence. Once again, we note that the lower court relied upon the report prepared by the special master in valuing and distributing the partnership assets which was based on substantial evidence. It came to the conclusion that both parties drew approximately equal amounts of money from the partnership and therefore neither party was owed any money. It then ordered sale of the remaining assets and a fifty-fifty split of the proceeds. We find that the District Court’s determination in this matter is well reasoned and is supported by substantial evidence.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    In the MATTER OF THE MENTAL HEALTH OF E.P.
    No. 89-352.
    Submitted on Briefs Sept. 21, 1989.
    Decided Feb. 13, 1990.
    787 P.2d 322.

      Terry L. Seiffert, Billings, for appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Harold F. Hanser, County Atty., Terence M. Swift, Deputy, Billings, for respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

The original opinion in this cause was dated December 20, 1989, and filed with the Clerk of the Supreme Court on that date. Following request for rehearing, we have modified that original opinion. Our original opinion in this cause dated December 20, 1989 is hereby withdrawn.

The District Court of the Thirteenth Judicial District, Yellowstone County, committed E.P. to Montana State Hospital at Warm Springs for a period of treatment and evaluation not to exceed three months. E.P. appealed that commitment. E.P. was released from Warm Springs prior to the hearing of this appeal. We affirm the commitment to Warm Springs. We review the procedure prior to commitment under the provisions of sec. 53-21-131, MCA, and conclude that there were serious violations of the statutory and due process protections as to E.P.

The issues are:

1. Did the District Court err in committing E.P. to Warm Springs as a seriously mentally ill person?

2. Whether E.P’s statutory and due process rights were violated.

There is no factual dispute with regard to the medical condition of E.P. She is a 44 year old woman with a medical history which had been previously diagnosed on several occasions as chronic paranoid schizophrenia. On May 4,1989, she refused the Billings Police entry for the purposes of service of notice of unlawful detainer and repossession of the apartment. After the officers gained entrance and served her with the notice of eviction, an officer testified they were unable to get E.P. to understand she was being evicted. The District Court pointed out in its holdings that all of the officers concluded that E.P. did not comprehend the meaning of the eviction and insisted on attempting to return to her apartment. Because of her verbal hostility and the representation by E.P.’s son to the police that he would later arrange for commitment, they took her to the emergency admission at Deaconess Medical Center of Billings, Inc. (Center).

On the morning of May 4, the record shows that E.P. was examined by Dr. Yaney, a psychiatrist for the Center, and also by Peggy Hough, a registered nurse who works at the Center and who made a mental status examination. The record establishes that both Dr. Yaney and Ms. Hough were convinced that an “emergency situation existed” and that E.P. was seriously mentally ill and a danger to herself. E.P. was detained at the hospital.

As more fully discussed under Issue II, the Center failed to comply with the statutory requirements which provided that on May 5 the Center was to release E.P., or file findings with the county attorney who in turn was required to file a petition. While the record demonstrates that Dr. Yaney examined E.P. on May 4, 5, 8, 10 and 11, the statutory provisions with regard to hearing or release were essentially disregarded. On May 10, a petition was filed with the County Attorney and in turn the County Attorney prepared a petition for commitment which was considered by the District Court on May 10. Notice was given and E.P. appeared before the court on May 11 and on May 12, with her attorney, Terry L. Seifert. On May 12, a hearing was conducted and the the District Court concluded that E.P. was beyond a reasonable doubt seriously mentally ill and ordered that E.P. should receive treatment at the Montana State Hospital, Warm Springs, Montana.

Appeal was taken in behalf of E.P. and we consider the issues which we deem essential for determination of the case.

I

Did the District Court err in committing E.P. to Warm Springs as a seriously mentally ill person?

On May 10, 1989, Dr. Yaney in behalf of the Center contacted Mary Spoja, social worker for Yellowstone County Department of Family Services, and requested her to prepare the commitment papers. Mary Spoja filed a petition with the County Attorney on May 10, along with a report from Dr. Yaney. The petition was not completely filled out, although the missing factors were noted elsewhere in the record. However, we remind all those involved that a petition must conform with sec. 53-21-121, MCA, and should be complete. On May 10 the County Attorney prepared and filed a petition for commitment which was considered by the District Court on May 10.

The District Court gave notice on May 10 of the petition for commitment and ordered that E.P. appear before the court on May 11, 1989, and also appointed Terry L. Seifert as attorney. On May 11, the District Court set the matter for hearing on May 12; and directed that E.P. be examined by Ralph Yaney, psychiatrist; and ordered that E.P.’s son was appointed as “friend to protect her interests.”

On May 12, 1989, the hearing was conducted before the District Court. E-P. was present with her attorney. Dr. Yaney and Ms. Hough both testified at the hearing as did police officers. On May 12, 1989, the District Court concluded that E.P. was seriously mentally ill and in need of further evaluation and treatment and ordered that she be committed to Montana State Hospital at Warm Springs for a period of treatment and evaluation, not to exceed three months. The District Court concluded that treatment may include medication by injection if deemed necessary by the attending physician. The order of May 12, 1989 was supplemented by findings of fact and conclusions signed by the District Court on May 22, 1989, which were incorporated into the order of commitment signed on May 12, 1989.

The findings and conclusions of the District Court stated that Dr. Yaney’s original impression was that E.P. was grossly hallucinating both visually and with auditory hallucinations. The court found that E.P. refused to cooperate in her examination and refused all medications; that E.P. is a chronically paranoid schizophrenic and functions only marginally at best; that E.P. has a persistent inability to deal with her life-reality situation, and that she cannot properly care for herself; that E.P. did not comprehend the meaning of the eviction and continued to insist on returning to her apartment; and that E.P. would not cooperate in the examination performed by Ms. Hough and appeared to be hallucinating. Ms. Hough testified that E.P. had severely sunburned legs and that notwithstanding that fact, E.P. stated that she would still sunbathe. Ms. Hough’s opinion was that E.P. was seriously mentally ill and “totally unable to take care of herself.” The District Court concluded that E.P. was in need of long term treatment for her condition and that the least restrictive environment in which she could receive the supervision and care was Montana State Hospital at Warm Springs. Last the court concluded that “respondent is beyond a reasonable doubt seriously mentally ill as defined in sec. 53-21-102, MCA.”

The counsel for E.P. has argued that there was not sufficient evidence upon which to base the findings and conclusions of the District Court. Under M.R.Civ.P. 52(a), findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the District Court to judge the credibility of the witnesses. We have carefully reviewed the transcript and the reports and other matters of record. We conclude there is substantial evidence, which could even be classed as overwhelming evidence, to support the findings and conclusions of the District Court, which culminate in the conclusion that E.P. beyond a reasonable doubt was seriously mentally ill as defined in sec. 53-21-102, MCA. We affirm the holdings of the District Court, including the commitment to Montana State Hospital at Warm Springs.

II

Whether E.P.’s statutory and due process rights were violated.

Section 53-21-131, MCA, provides those persons ordered to long term commitment with a right to appeal at any time within 90 days after discharge. Therefore, we will consider the procedural issues raised by E.P. even though she was discharged prior to the consideration of her appeal. However, our determination on the procedural issues does not affect her commitment to Warm Springs.

In the petition filed by the County Attorney on May 10, 1989, there is a statement of E.P.’s rights as set forth in secs. 53-21-111 through 53-21-119, MCA (1987). These are summarized as requiring the right to notice reasonably in advance of the hearing; the right to know in advance of hearing the names and addresses of witnesses who will testify; the right to offer evidence and present witnesses; the right to cross examine witnesses; the right to be represented by counsel; the right to remain silent; the right to be proceeded against according to the rules of evidence; the right to view and copy all petitions; the right to be examined by a professional person of her choice when such professional person is reasonably available; the right to refuse any but lifesaving medications for up to 24 hours; and the right to valid review of any order of commitment. Unfortunately a number of the foregoing rights granted to E.P. under the statutes were disregarded by the Center and the County.

Section 53-21-129, MCA, sets forth the procedure to be followed when an “emergency situation” exists. It requires that a police officer take a person who appears to be seriously mentally ill and thus a danger to herself, into custody only for a sufficient time to contact a professional person. That was done when the Billings Police promptly brought E.P. to the Center. The section further requires that if the professional person agrees that the person detained appears to be seriously mentally ill and that an emergency situation exists then the person may be detained and treated.

That was also complied with here when both the psychiatrist and nurse examined E,P. on the morning of May 4. However the right of the Center to detain and treat lasted only until May 5, the next regular business day. The statute provides that at that time the professional person shall release the detained person or file findings with the county attorney. If he determines probable cause to exist, the county attorney shall file a petition. The professional person also is required to file a report with the court explaining his actions. That portion of sec. 53-21-129, MCA, was totally disregarded.

When the Center failed to file with the County Attorney, the Center should have released E.P. as required by statute. Instead of doing so, the Center retained E.P. from May 5 to May 10, 1989, without any proper authority for doing so. Under these statutes, the proper procedure would have been for the Center to have filed the findings of Dr. Yaney with the County Attorney by May 5, together with Dr. Yaney’s report. In turn the County Attorney should then have filed a petition with the District Court on May 5, rather than on May 10 as was actually done. On May 5 notice of the petition should have been hand delivered to E.P. and to her counsel on or before the initial appearance. Notice of the petition and order setting the time and place of hearing and name of her counsel, professional person and friend, should have been hand delivered to her on May 5.

Even though proper procedure was followed on the actual commitment, which proceedings took place on May 10, 11 and 12, 1989, there has been a serious failure to follow the due process requirements of our statutes and law. It is critically necessary that such due process rights of our citizens be protected. As stated by the Supreme Court of the United States in Minnesota ex rel Pearson v. Probate Court of Ramsey County, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744:

“We fully recognize the danger of a deprivation of due process in proceedings dealing with persons charged with insanity . . . and the special importance of maintaining the basic interests of liberty in a class of cases where the law though ‘fair on its face and impartial in appearance’ may be open to serious abuses in administration and the courts may be imposed upon if the substantial rights of persons charged are not adequately safeguarded at every stage of the proceeding.” (Emphasis added.)

Here it is clear that the substantial rights of E.P. were not adequately safeguarded. There was a total failure to follow the essential elements of the statutes which required the release of E.P. on May 5, 1989 in the absence of appropriate filings. In the same way, she should have been released on May 6, 7, 8 and 9, in the absence of the appropriate procedures.

It may be that the Center would argue that they should not be chastised because the medical care which was given from May 4 through May 12 by the Center was clearly adequate. While the record supports that conclusion, adequate medical care is not a basis for disregarding the due process and statutory rights of a person who is charged with being seriously mentally ill. We admonish the Center, the County Attorney’s office, and the Yellowstone County Department of Family Services for their failure to comply with the statutory due process rights on the part of E.P. We recommend that they immediately confer and set up procedures which will protect against a reoccurrence of this type of denial of due process. We caution the District Court in Yellowstone County to take appropriate steps so that in the future, due process rights on the part of such persons as E.P. will be properly and adequately protected. We point out that this case is a reoccurrence of a similar problem in Yellowstone County as discussed in Matter of T.J.F. (1987), 229 Mont. 473, 747 P.2d 1356.

We hold that the statutory and due process rights of E.P. were violated from May 5 through May 9. We further hold that the commitment proceedings which commenced on May 10 were sufficient and we affirm her commitment.

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

JUSTICE BARZ did not participate in this opinion.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACK LEE CAMPBELL, a/k/a James Austin, Defendant and Appellant.
    No. 89-300.
    Submitted on Briefs Jan. 4, 1989.
    Decided Feb. 14, 1990.
    787 P.2d 329.

      J. Blaine Anderson, Jr., Vincent J. Kozakiewicz, Dillon, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Thomas R. Scott, County Atty., Calvin J. Erb, Deputy, Dillon, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jack Lee Campbell appeals from a jury verdict in the Fifth Judicial District Court, Beaverhead County. He was convicted of deliberate homicide, robbery, theft, and two counts of tampering with or fabricating physical evidence. We affirm.

The issues are:

1. Was Campbell denied a fair trial by prosecutorial misconduct during his cross-examination and during closing argument?

2. Did the District Court err in denying Campbell’s requested instruction on flight?

On the afternoon of August 4, 1988, a body was found near the railroad tracks just north of Dillon, Montana. The victim had only a small amount of change and no identifying information on his person. He was later identified as Russell Junior Stubblefield, a/k/a Ronald Smith, a transient who had been seen in the Dillon area for several weeks. The victim had died from a subdural hematoma as the result of multiple severe injuries to the head. His injuries included a fractured nose, fractures of both the upper and lower jaws, a deep laceration of the jaw, bruised lips and eyes, swollen nose tissue, a laceration on the scalp, and a large hinge fracture at the base of the skull. He also had minor injuries indicating that he had been dragged across the ground prior to his death. At the autopsy conducted on the morning of August 5, the pathologist estimated the victim had been dead one to two days.

The State’s case against Campbell was based on circumstantial evidence. The evidence at trial showed that Campbell had been seen with the victim in and around Dillon for several weeks prior to the homicide. Campbell testified that he had been a transient for some fourteen years and had last been employed as a cherry picker in Oregon for two weeks in June 1988. Campbell and the victim had appeared together at the welfare and unemployment offices on several occasions, applying for food stamps and work. The victim had told a welfare agent that he and Campbell were traveling together. Both men listed their addresses, on their applications for food stamps, as camped along Highway 91 north of Dillon.

The State presented evidence at trial that on August 1, 1988, the victim had received a $569 money transfer through the Dillon Western Union office. That night, he rented a motel room for two people. A maid identified Campbell as an occupant of the room.

Campbell was last seen with the victim on the evening of August 3, 1988. They were drinking beer in the area where the victim’s body was later found. That night, Campbell rented a motel room in Dillon. The next morning he purchased a bus ticket and went to Idaho Falls, Idaho.

In Idaho Falls, Campbell “lived it up” for several days. He checked into the Quality Inn, where he stayed fpr four nights. He went out for fast food. In addition to buying six-packs or twelve-packs of beer in grocery stores, he drank mixed drinks in bars, at one of which he exhibited a large sum of cash and bought a round of drinks for the house. On August 8, Campbell returned to Dillon on a freight train. He was arrested the next day.

At the time he was arrested, Campbell had in his possession all of the food stamps which had been issued to the victim on August 3. Several articles of his clothing were stained with blood which was consistent with the victim’s. All but one set of the clothes in Campbell’s possession appeared to have been freshly laundered.

Additional evidence produced by the State included Campbell’s fingerprints on several beer cans found at the site where the victim was killed and footprints matching Campbell’s at the same site. Partially-burned papers revealing the victim’s identity were found in a fire ring near where the body was found.

Campbell relied on an alibi defense, claiming that he had not been at the scene of the homicide on August 4. In his testimony, he described in detail his activities during the summer months of 1988 and testified that the cash for his Idaho trip was money he had saved over the summer. He testified that he had purchased the food stamps later identified as the victim’s from an unknown transient in Idaho Falls. He further testified that his association with the victim was much less extensive than that claimed by the State and denied traveling with, camping with, staying in the motel with, or visiting the welfare and unemployment offices with the victim. Much of the extensive cross-examination was devoted to developing inconsistencies in Campbell’s testimony.

I

Was Campbell denied a fair trial because of prosecutorial misconduct during his cross-examination and during closing argument?

Campbell makes several arguments which we have grouped under this issue. First, Campbell argues that it was improper for the county attorney to ask him, during cross-examination, whether he believed another witness was lying. He also claims misconduct in that, in the county attorney’s closing argument, the county attorney called Campbell a liar and expressed his personal opinion that Campbell was guilty. Last, Campbell argues that the cumulative effect of these errors deprived him of a fair trial.

The county attorney asked Campbell the following questions on cross-examination:

“Q. Okay. Let’s talk about the second time that you talked to Sheriff Later and I. Do you recall telling Sheriff Later that you made $60 in Helena working two days?

“A. No, sir, I do not.

“Q. If Sheriff Later came in and testified to that fact he’d be lying?

“A. I wouldn’t know if he was lying or not. But I never made no statement to that fact.

“Q. Well, if you never made that statement to him, then he’d be lying; wouldn’t he?”

Campbell’s counsel objected that “[h]e’s requiring the witness to harass another witness.” The court overruled the objection. The county attorney continued with another question and never received an answer to the last question above.

Campbell cites State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341. In that case, the prosecutor began writing “lies” or “liar” on a chalkboard as he cross-examined the defendant. Defense counsel objected, the court sustained the objection, and the jury was admonished to disregard statements of counsel not based upon the evidence. Armstrong, 616 P.2d at 353.

Unlike Armstrong, in the present case the county attorney did not characterize anyone as a liar. He asked the defendant to characterize someone as a liar. The rationale in Armstrong dealing with statements of counsel not based upon the evidence does not apply. Although Campbell has cited cases from several jurisdictions which have held that asking a defendant to characterize another witness as a liar is error, the State has cited several in which such questions were ruled not erroneous. This Court has held that “[w]hen a defendant goes upon the witness stand in his own behalf, and denies the commission of the crime with which he is charged, a very wide latitude of cross-examination is allowed.” State v. Rhys (1909), 40 Mont. 131, 136, 105 P. 494, 496. In the absence of an answer to the question, we are unwilling to use it as grounds for reversal.

Campbell next objects to the State’s characterization of him, in closing argument, as a liar. No objection was made to the first characterization, in which the county attorney explained his long cross-examination of Campbell as the only way to expose a “pathological liar.” During defense counsel’s closing argument, he said that Campbell was “not the type of man who’s just going to come in here and make up a story to cover for himself.” Campbell’s counsel also stated in his closing argument that Campbell was “the most candid witness we’ve had, or at least at the top of the heap.” In the State’s rebuttal argument, the county attorney listed all of the situations where Campbell’s testimony conflicted with his earlier statements, as examples of Campbell as a liar.

As to the first reference to Campbell as a “pathological liar,” Campbell argues that he had a continuing objection from his objection to use of the word “liar” on cross-examination. We conclude that these were divergent enough in time and subject matter that a new objection was required. We will not review the reference where no objection was made at trial. State v. Wiman (Mont. 1989), [236 Mont. 180,] 769 P.2d 1200, 1204, 46 St.Rep. 279, 286. The prosecution’s extensive characterization of Campbell as a liar in rebuttal was made in response to the defense characterization of him during its closing argument. We have held that no error may be claimed where the prosecutor’s actions were provoked by defendant’s counsel. State v. Close (1981), 191 Mont. 229, 242, 623 P.2d 940, 947. We hold that the characterizations of Campbell as a liar are not reversible error for that reason.

Campbell claims that, at the end of his closing argument, the county attorney improperly gave his personal opinion that Campbell was guilty. The challenged remarks were as follows:

“Ladies and gentlemen of the jury, the worst thing in the world and the last thing that this office wants to do is convict an innocent man.”
Defense counsel objected and was overruled. The county attorney continued:
“But the second to the last thing that we want to do is turn a guilty man loose. I ask you, ladies and gentlemen of the jury, don’t turn this man loose. Look at the evidence, look at what we’ve shown. The inescapable conclusion, who done it? Jack Lee Campbell. Thank you.”

The law on prosecutorial comments about the guilt of an accused has been described as follows:

“It has been declared that, generally speaking, the duty of a prosecuting attorney, if convinced of the guilt of an accused, is to lead the jurors to a like assessment by pointing out to them, intelligently and impartially, that evidence which cannot reasonably justify any other conclusion; and that the better way of fulfilling such duty is to confine his argument to a fair effort to produce such a belief in the jurors’ minds without directly expressing the prosecutor’s personalized views as such. In those instances in which a prosecutor’s personalized argument has been considered misconduct, it has occasionally been reasoned that the expression of the prosecutor’s knowledge of, belief in, or opinion as to guilt constitutes an invasion of the province of the jury and a usurpation of its function to declare the guilt or innocence of an accused and, moreover, that there is a danger that the jurors might, consciously or unconsciously, accept or adopt the prosecutor’s views instead of exercising their independent judgment as to the conclusion to be drawn from the testimony. On the other hand, it has also been stated that the more practical and substantial reasons for considering a prosecutor’s personalized argument improper are that the prosecutor’s expression of his own views injects into the case irrelevant and inadmissible matters or a fact not legally proved by the evidence, and adds to the probative force of the testimony adduced at the trial the weight of the prosecutor’s personal, professional, or official influence. Thus, there are several different theoretical bases underlying the rules concerning the propriety of a prosecutor’s personalized argument . .

Annotation, Propriety and Prejudicial Effect of Prosecutor’s Argument to Jury Indicating His Belief or Knowledge as to Guilt of Accused — Modern State Cases, 88 A.L.R.3d 449, 454-55 (1978).

In State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246, rev’d. on other grounds after remand, 202 Mont. 59, 655 P.2d 982, the following statement by the prosecuting attorney was challenged:

“We told you that we were going to give you every shred of evidence that we had, whether it was good or bad because we were convinced that all the evidence would convince you beyond a reasonable doubt the defendant was responsible for the death of John Linker. Now, we have kept our bargain. And after hearing all this testimony, I’m convinced that Musgrove is a liar and he is responsible.”

Musgrove, 582 P.2d at 1252.

This Court reasoned that

“The first statement of the prosecutor that we have quoted above appears to be based on his analysis of the evidence and is a matter on which he could properly argue. Therefore no improprieties exist with respect to that portion of the closing argument. However, with respect to the second portion of the argument which we have quoted above, the prosecutor is expressing his personal opinion as to the guilt or innocence of the accused and it is therefore highly improper.”

Musgrove, 582 P.2d at 1252.

In the present case, the county attorney did not state that he believed Campbell was guilty. He said that the inescapable conclusion from the evidence was that Campbell had committed the crimes. His remarks do not imply any knowledge separate from the evidence at trial: “Look at the evidence, look at what we’ve shown.” We conclude that the county attorney’s remarks in closing argument do not constitute reversible error.

Finally, Campbell argues that he was denied a fair trial based on the cumulative effect of the cross-examination and closing argument discussed above. While Montana recognizes that the accumulation of errors may prejudice a defendant’s right to a fair trial, mere allegations of error without proof of prejudice are inadequate to satisfy the doctrine. State v. Grant (1986), 221 Mont. 122, 137, 717 P.2d 562, 572. In this case, the prosecution’s challenged remarks and questions when viewed in the context of the lengthy trial were not prejudicial. The circumstantial evidence against Campbell was compelling. Campbell’s own testimony was preposterous. In light of the entire record, we conclude that Campbell has not shown that he was prejudiced by the challenged questions and remarks.

The Court takes this opportunity to remind prosecuting attorneys of the provision of Rule 3.4(e) of the Montana Rules of Professional Conduct prohibiting a lawyer from stating in trial a personal opinion as to the guilt or innocence of an accused.

II

Was the flight instruction given by the District Court erroneous?

The District Court instructed the jury, at Instruction No. 20:

“If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance, if any, to be attached to it are matter [sic] for the jury to determine.”

Campbell argues that the court failed to instruct the jury on motives for departure inconsistent with consciousness of guilt. He asserts that his leaving Dillon on August 4 can be explained by his transient lifestyle. He maintains that the court should have used his offered flight instruction instead of the one offered by the State.

The flight instruction given the jury was taken from the Montana Criminal Jury Instructions (1983). It accurately reflects the law. See State v. Burk (Mont. 1988), [234 Mont. 119,] 761 P.2d 825, 828, 45 St.Rep. 1777, 1782. The instruction would have allowed the jury to find that Campbell’s August 4 bus trip did not show flight. We hold that the flight instruction given was not erroneous.

Affirmed.

JUSTICES HARRISON, HUNT, BARZ and McDONOUGH concur.


author: JUSTICE HARRISON JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES D. COATES, Defendant and Appellant.
    No. 89-314.
    Submitted on Briefs Dec. 14, 1989.
    Decided Feb. 14, 1990.
    786 P.2d 1182.

      Martin John Elison, Hardin, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Betty Wing, Deputy, Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

James Coates appeals an order of the Fourth Judicial District, Missoula County, Montana, denying Mr. Coates’ petition for post-conviction relief. We affirm.

Appellant raises three issues for review:

1. Was appellant denied an evidentiary hearing on his petition for post-conviction relief?

2. Was the hearing the appellant received a full and fair hearing?

3. Did the District Court err in finding that appellant had not been denied effective assistance of counsel and thus err in denying the petition for post-conviction relief?

Following a jury trial, appellant was convicted of four counts of felony theft on May 1, 1987. At trial, Bernard J. Goldman represented appellant. Mr. Goldman also handled Mr. Coates’ appeal to this Court.

On September 2, 1988, pursuant to sec.46-21-201, MCA, appellant’s new counsel filed a petition for post-conviction relief that alleged appellant was denied effective assistance of counsel at trial. Specifically, appellant cited eight alleged errors committed by Mr. Goldman. The parties filed briefs and the District Court held a hearing on December 12, 1988. During the hearing, appellant presented a witness on his behalf and testified himself. The State called as a witness the deputy county attorney who prosecuted appellant.

At the end of the hearing, the District Judge added to the record his observations regarding Mr. Goldman’s conduct during appellant’s trial. Neither the appellant nor the State objected to the Judge’s comments and both counsel asked the Judge questions. On January 13, 1989, the District Court issued findings of fact and conclusions of law denying appellant’s request for post-conviction relief. The District Court found that Mr. Goldman’s alleged errors were in the main tactical decisions, that another lawyer could not have obtained a better result, and that Mr. Goldman had not ineffectively represented appellant.

I

Appellant contends that the District Court erred in not granting appellant an evidentiary hearing in which to present proof regarding his allegations of ineffective assistance of counsel. Appellant’s argument belies the record. Section 46-21-201, MCA, details the procedure relating to a petition for post-conviction relief and provides in part as follows:

“46-21-201. Proceedings on the petition.
“(1) Unless the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief, the court shall cause notice thereof to be served upon the county attorney in the county in which the conviction took place and 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 thereon, determine the issue, and make findings of fact and conclusions with respect thereto.
“(2) The court may receive proof by affidavits, depositions, oral testimony, or other evidence. In its discretion the court may order the petitioner brought before the court for the hearing.”

The District Court granted appellant a hearing as outlined in sec. 46-21-201(1), MCA, and received evidence in the form of oral testimony and exhibits. The statute plainly contemplates that the hearing on a post-conviction petition will be to determine the issues raised in the petition. Nothing in the record supports appellant’s argument that the hearing held was not such an evidentiary hearing. We reject appellant’s argument.

II

Appellant alleges that the District Court failed to give him a proper hearing because it ignored the rules of civil procedure and it made improper comments during the hearing. We disagree.

A petition for post-conviction relief is civil in nature rather than criminal. Coleman v. State (Mont. 1981), [_Mont._,] 633 P.2d 624, 627, 38 St.Rep. 1352, 1354. However, “district courts are not strictly bound by all the rules of civil procedure” in post-conviction relief hearings. State v. Perry (Mont. 1988), [232 Mont. 455,] 758 P.2d 268, 276, 45 St. Rep. 1192, 1201. As appellant neither cites any specific rules that the District Court violated nor cites any authority in support of his argument, we reject his contention. We hold that the District Court followed the procedures established by sec. 46-21-201, MCA.

Additionally, appellant argues that he did not receive a fair hearing because the District Judge made prejudicial remarks at the end of the hearing that indicated bias on the part of the Judge. The Judge’s comments related to his observations of Mr. Goldman’s conduct of appellant’s trial. The critical inquiry is whether the Judge’s remarks deprived appellant of a full and fair hearing. Perry, 758 P.2d at 275. We do not find that his remarks reflect bias and prevented appellant from receiving a full and fair hearing.

Appellant frames his bias argument in generalizations. His argument appears to be that because the Judge articulated his observations regarding Mr. Goldman’s trial conduct that the Judge was biased. In other words that the Judge’s remarks indicate his unwillingness or inability to impartially consider appellant’s evidence that Mr. Goldman ineffectively represented him. However, the mere fact that the Judge articulated his observations does not, without more, constitute bias and appellant has not buttressed his argument with anything specific.

Petitions for post-conviction relief are directed to either this Court or to the presiding district court judge. The statute specifies the presiding district judge precisely because that judge is familiar with the underlying criminal case. By directing the post-conviction relief petition to the presiding district judge, the judge who is most familiar with the conduct of the trial has the opportunity to correct any errors that occurred during the tried. See Coleman, 633 P.2d at 626-628. The fact that a judge is familiar with how counsel conducted a trial does not equal bias and in post-conviction relief hearings familiarity is considered a benefit. In particular, the presiding judge will have observed an attorney’s handling of a trial in regard to general behavior, thoroughness of preparation, and effectiveness of case presentation.

In the instant case, the Judge’s remarks did not reflect any unwillingness to consider appellant’s evidence regarding ineffective assistance of counsel. These remarks came at the end of the hearing after all evidence had been presented. The appellant does not allege that the Judge made any improper remarks as the parties presented their case nor does appellant allege that the judge improperly excluded any evidence appellant offered. As well, appellant does not argue that the remarks indicated personal bias toward either Mr. Goldman or appellant. Additionally, the Judge’s observations mirrored the testimony of the prosecuting attorney at appellant’s trial.

In contrast to the case at bar stands State v. Musgrove (1980), 187 Mont. 549, 610 P.2d 710, where we found that the trial judge’s comments indicated bias, or an unwillingness to consider evidence. In Musgrove, the defendant had failed to appear at trial on the day of closing arguments. The trial court ordered the insurance company’s $50,000 bond forfeited. Shortly thereafter the defendant returned voluntarily and was convicted and sentenced.

The insurance company moved the trial court for an order discharging the bond forfeiture on the grounds that the defendant’s mental condition excused his failure to appear at trial. Although the trial court, after a hearing, did discharge $25,000 of the bond forfeiture, the insurance company appealed alleging in part that the trial judge had improperly excluded evidence of the defendant’s mental condition. We found that the trial judge had improperly excluded evidence of the defendant’s mental condition as well as improperly commented on the defendant’s state of mind with the following remarks:

“THE COURT: Well, Mr. Delaney, there isn’t any doubt in my mind as the judge who presided on the trial that at that particular time Mr. Musgrove knew the jury was going to find him guilty because the testimony was so obvious in that direction and the Instructions settled by the Court was [sic] so obvious in that direction. I know that he knew this was going to happen and I know that because of that he failed to show up the next day. There is no doubt in my mind that he was upset. I think I would have been.”

Musgrove, 610 P.2d at 712. We found that those statements indicated “bias which resulted in effectively denying the insurance company an opportunity to establish its case of excuse in order to exonerate the bond forfeiture.” Musgrove, 610 P.2d at 712. We also noted that the trial judge’s findings did not address the insurance company’s contentions and evidence regarding excuse. Musgrove, 610 P.2d at 713.

As mentioned above, we do not discern a similar bias or unwillingness to consider appellant’s evidence in the instant case. The District Judge scheduled a hearing which he is not required to do if he finds the petition meritless. Section 46-21-201(1), MCA. Each party thoroughly briefed the issues, and each party presented evidence at the hearing. The Judge stated that he had considered all the testimony, evidence and briefs in making his decision and he wrote detailed findings of fact and conclusions of law that directly dealt with appellant’s contentions. Moreover, we cannot say that the Judge’s decision is not supported by substantial evidence. We hold that the Judge’s remarks did not reflect bias and did not deprive appellant of a full and fair hearing.

Ill

The standard of review for denial of post-conviction relief is whether substantial evidence supports the findings and conclusions of the district court. Yother v. State (1979), 182 Mont. 351, 355, 597 P.2d 79, 82. Appellant argues that the District Court erred in failing to find that Mr. Goldman was an ineffective counsel. We disagree.

In evaluating ineffective assistance of counsel claims, this Court utilizes a two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, counsel’s performance must be deficient. To assess deficient performance, this Court employs the “ ‘reasonably effective assistance’ test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases. (Citation omitted.)” State v. Elliott (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. Second, counsel’s deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. State v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel’s deficient performance, the trial’s outcome would have been different. Leavens, 723 P.2d at 237. However, in evaluating a defense counsel’s performance, this Court will not second guess trial tactics and strategy. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872.

In his petition for post-conviction relief, appellant alleged the following eight specific errors by Mr. Goldman:

1. Failure to object to the use of statements made by defendant prior to reading defendant his Miranda warnings.

2. Opening the door to testimony of a prior conviction.

3. Failure to suppress evidence seized from the back of defendant’s vehicle by challenging probable cause of the search warrant.

4. Failure to obtain witnesses necessary for his defense.

5. Improper preparation for trial.

6. Failure to properly question witnesses.

7. Failure to appeal certain issues.

8. Mr. Goldman’s drug abuse adversely affecting his ability to represent the defendant.

As mentioned, all of these issues were thoroughly briefed by both parties prior to the hearing.

Regarding allegations 1, 2, 3, and 7, the District Court’s findings indicate that it found Mr. Goldman’s decisions on these issues to be tactical. The District Court found and upon review we concur, that defendant likely would not have prevailed in trying to exclude the defendant’s statements or in suppressing the evidence seized, either at the pretrial proceeding or on appeal. The District Court noted that Mr. Goldman’s primary concern related to the identity of the informer and that he pressed that issue with vigor during pretrial proceedings and on appeal.

As well, the District Court concluded that it was trial tactics that led Mr. Goldman to ask appellant on direct examination whether he had to have a background check to have a business license. On cross-examination, because the defense had “opened the door,” the prosecuting attorney was able to elicit from appellant the fact of his prior theft conviction. However, as the prosecuting attorney testified, had she not caught Mr. Goldman’s brief reference to appellant’s background and followed up, Mr. Goldman would have had an excellent foundation for a closing argument. The evidence supports the conclusion that Mr. Goldman’s decisions on allegations 1, 2, 3, and 7 were trial tactics and we will not second guess trial tactics.

As to allegation number 4, failure to obtain two necessary witnesses, appellant does not demonstrate exactly how the absence of these witnesses prejudiced him. The record discloses that the County subpoenaed the two witnesses to no avail. Mr. Goldman apparently knew that these witnesses could not be located so any attempt on his part to subpoena them would have been futile. Further, appellant’s argument does not specify exactly what testimony these witnesses would have given that would have assisted the defense. Without a showing of prejudice, appellant’s argument fails. State v. Henricks (1983), 206 Mont. 469, 475-476, 672 P.2d 20, 24.

Regarding allegations 5 and 6, the record contains substantial evidence that, on the whole, Mr. Goldman was prepared for trial and properly questioned witnesses. The prosecuting attorney testified that Mr. Goldman aggressively questioned witnesses and effectively brought out the defects in the State’s case. She testified that his questions reflected his familiarity with the facts of the case and that his questioning elicited the information that he needed to establish the defense. Although appellant argues that Mr. Goldman should have asked certain questions, appellant again fails to establish exactly how those questions would have materially assisted his defense.

Finally, as to allegation 8, the record discloses no specific evidence that Mr. Goldman’s cocaine abuse, which has become public knowledge, rendered his conduct of appellant’s trial incompetent. Most of appellant’s argument on this issue relates back to the alleged errors already discussed. If those allegations had been found to reflect ineffective assistance of counsel, then one might infer that cocaine abuse may have been a contributing factor. However, absent any specific errors or conduct identified in the trial that affected the trial’s outcome, Mr. Goldman’s cocaine abuse is irrelevant to the issue of ineffective assistance of counsel.

In summary, substantial evidence in the record supports the District Court’s conclusion that another lawyer would not have obtained a more favorable result for appellant considering the amount of evidence the State presented against appellant. Appellant has failed to establish that Mr. Goldman’s performance was deficient or that any of his alleged errors prejudiced the outcome of the trial.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDON-OUGH, WEBER and BARZ concur.

JUSTICE SHEEHY,

dissenting:

It is provided in Rule 605, Montana Rules of Evidence:

“The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point” (Emphasis added.)

The statements made by the district judge at the hearing for post conviction relief were statements of fact, although he was an unsworn witness. Moreover, the district judge founded his findings of fact based on his own observations made at the hearing.

This is what occurred in the post-conviction hearing, when the matter was before the District Court:

“THE COURT: Do you have any other witnesses to call?

“MS. WING: No witnesses.

“THE COURT: Rebuttal witnesses?

“MR. ELISON: None.

“THE COURT: Counsel, let me make some observations for the record.

“Obviously I am not an expert or even an amateur on how a person acts when they are under the influence of cocaine. However, I did make these observations of Bernie Goldman when he was here during the trial.

“I didn’t see that he had any shakes or disruptive or mumbling speech. He had good eye contact. I didn’t see any mood swings in the sense that one minute he would be very angry, the next he would be euphoric. When the prosecution witnesses were on, he was his usual abrasive self, as he has been for many years, but that’s how he does his cases, and generally with some good success and sometimes not.

“I noticed many discussions between the Defendant and Mr. Goldman during the trial, but I should point out that it’s been my experience with Bernie Goldman when he goes to trial, he runs his own show and that it seems to be his policy that he does not allow his clients to run the trial. He kind of decides how he is going to run the case and then he proceeds from there.

“It’s also been my experience with Mr. Goldman, and seemed to be his practice here, is that he will — he is quite clever about his trial tactics and his tactics here were consistent with that, for example, when he attempted to just very briefly passing mention the fact that the Defendant had to be — had a background check or get checked in order to have a license. I am sure he would have referred to this in his closing argument and, of course, the State seized on that as opening some information in regards to the Defendant’s background. If the State had not been alert, that would have slipped on through and the jury would have been left with the impression brought out by Goldman’s final argument that the Defendant was a model citizen as far as his business license is concerned.

“It seemed to me the gist of Goldman’s case that he was primarily concerned with the informer and he pressed that hard at all the pretrial proceedings and obviously he pressed it on appeal. And I got the impression that he knew the case was — and I will use it in quotes, ‘in trouble,’ as far as the search was concerned and the statements that may have been made by the Defendant.

“And in conclusion, Counsel, I am of the opinion that another result would not have occurred if he would have had another lawyer. I think that another lawyer would not have been able to obtain him a more favorable result. It is possible, but I don’t think so under the amount of evidence that the State marshaled against the Defendant in this case.

“Those are just, for the record, those are the observations that I made while we had the trial.

“I have examined the briefs that have been submitted in the case as well as the evidence presented here at the trial, and I do not feel that Mr. Goldman was an ineffective counsel. His decisions in many cases were tactical decisions that we may or may not agree with.

“I think he took the approach that to — the approach being not to spend a lot of time with issues that were obvious losers and went ahead into — to press on the one issue where he thought that he knew if he could require — get me to require the State to identify the informer, that the State’s case would collapse completely. And that seemed to be the gist of his case at the beginning and then during the trial, to attack the credibility of the State’s witnesses during the trial itself.

“My conclusion, Counsel, is that your motion should be denied and it is so ordered.

“MS. WING: Your Honor, might I inquire, you have made some observations about Mr. Goldman and I wonder if you would mind putting something on the record of your years of experience with him or how long he has practiced in front of you.

“THE COURT: I have — as County Attorney I have had several cases against him and his father and eight years now of trials involving Mr. Goldman. And some of which he has been successful, but I didn’t see anything different in his behavior and actions in this trial from other ones. I don’t always agree with the way that Mr. Goldman tries his cases, but you can’t argue with success and he has in my court several very good successes, but this was not one of them.

“MR. ELISON: Regarding the Supreme Court opinion, how long do I have to get that to you? Tomorrow? Or is that not going to bear on the case at this point?

“THE COURT: Well, I have their opinion.

“MR. ELISON: Oh, okay — no, I mean the one in which Bernie was disbarred.

“THE COURT: Oh. I have a sense of what that is and I testified — no, it was not this case. I was aware of some of the allegations against him and so I have a pretty good idea what the circumstances were. It’s largely of his cocaine use, but like I said, Counsel, I have to admit that my expertise on cocaine users and how they behave in court is nonexistent, but he didn’t seem — he didn’t seem to be out of the norm for Bernie. And there were not occasions where I would talk to him and he would be like — would be spaced out or not understanding what I am saying, you know. And so he seemed to be tracking well at the trial and all I can say is he made some tactical decisions and some worked and some didn’t work.

“MR. ELISON: I suppose I could have used an expert witness on what an addict on cocaine would act like?

“THE COURT: Well, tell me —

“MR. ELISON: I don’t think there would be any particularly noticeable thing. It’s going to be — it is going to be mostly — it’s a speed, so it’s an upper and would make him more — it actually might make him more productive on occasions, but it is also kind of a mind scrambler and so he will forget things. He will think that he is doing something that he really, really isn’t successfully doing. He will forget what has happened a day or two before. And probably when he leaves, he won’t get much sleep and it will throw his thinking off, but I suppose if there are no tactical errors or errors in the transcript that you can see —

“THE COURT: Well, I wouldn’t say that he — well, you know that thing about the — Mr. Coates’ background check, that’s not an error. That’s a classic Bernie Goldman, I hate to say, maneuver, but it is a maneuver and he almost slipped that thing through and he just ran it through very quickly and had the State not picked up on that, he would have had an outstanding base for a closing argument. That’s a classic Bernie Goldman maneuver. So I am not going to say it was wrong to do that. He might have gotten it by, if the County Attorney would not have been attentive at that point it would have been in. And that’s how Bernie tries his cases and he is frequently successful.

“MR. ELISON: So, in other words, it is not a mistake?

“THE COURT: I don’t think it was a mistake. I think it was purposeful on Bernie’s part, quite frankly, because I have seen him do things before. So that’s my ruling, Counsel.

“Would you make an appropriate order reflecting my ruling?

“MS. WING: I will.”

Because of Rule 605, M.R.Evid., the District Court was incompetent as a witness to testify as to his observations, sworn or unsworn, of the activities of counsel for the defendant during the District Court trial. If the District Court intended to be a witness, it should have been proper procedure to call in another district judge in order to hear the petition for post-conviction relief.

The point that the District Court made observations of fact as a witness is buttressed by the findings of fact made by the same judge which appear to be completely founded on the court’s own observations. Witness:

“Findings of Fact
1. The court observed no signs of Mr. Goldman being under the influence of drugs. There were no shakes or disruptive or mumbling speech. He had good eye contact. There were no mood swings in the sense that one minute he would be very angry, the next he would be euphoric. When the prosecution witnesses were testifying, he was his usual abrasive self as he has been for many years. His style has generally had some good success and sometimes not.
“2. Mr. Goldman held many discussions with the Defendant during the trial. It has been the Court’s experience, however, that when Bernie Goldman goes to trial, it seems to be his policy that he controls the case and does not allow his clients to nm the trial.
“3. It has been the court’s experience that it is Mr. Goldman’s practice to be clever with his trial tactics, and his tactics in this case were consistent. For example, he attempted to very briefly in passing mention the fact that the Defendant had to have a background check in order to obtain a business license. He surely would have referred to this in his closing argument. If the State had not been alert, the information would have slipped on through and the jury would have been left with the impression that the Defendant was a model citizen. The State, however, seized on that as opening the testimony for information in regards to the Defendant’s background.”

The duty of a judge to conduct an impartial trial is illustrated in the following paragraph:

“The trial judge must strive to have the trial conducted in an atmosphere of impartiality. His conduct in trying a case must be fair to both sides, and he should refrain from remarks that may injure a litigant. He should not engage in conduct which amounts to acting as counsel for one of the parties. Except where authorized by statute, it is improper for a judge to assume the role of the witness in a case being tried before him, and doing so constitutes reversible error. How great a departure from fairness amounts to reversible error is determined by the answer to the fundamental inquiry whether or not was done was prejudicial to the appellant or plaintiff in error.” 75 Am.Jur.2d 191, Trial, sec. 87.

Rule 605 of the Montana Rules of Evidence is based upon its federal counterpart. Moore points out that the rule provides an “automatic objection” because to require an actual objection would confront the opponent with a choice of not objecting with the result of allowing the testimony, and objecting, with the probable result of excluding the testimony, but at the price of continuing the trial before a judge likely to feel that his integrity had been attacked by the objector. 10 Moore’s Federal Practice, (2d ed. 1976), para. 605.01 [3].

Two of the dangers pointed out by Moore in having the judge testify at the trial over which he is presiding are (1) who will rule on objections, claims of privilege and other matters normally under judicial control, and (2) in a bench trial the judge who testifies will have to consider his own testimony in the light of other testimony in the case.

In adopting findings of fact in the case at bar, the district judge weighed his own testimony as observations against the evidence adduced by the defendant and based his findings of fact upon his own observations, thus rejecting the evidence and testimony of the defendant.

Moreover, both the District Court and the majority state as a fact in their Opinion that a new trial for the defendant would not end in a different result. Aside from it being sheer speculation, the probable future result of a fair trial should have no weight in considering whether a defendant receive a fair trial before an impartial tribunal in the former proceedings. The only question we should decide upon a petition for post-conviction relief is whether the defendant’s sentence is subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus. Section 46-21-101, MCA. Those grounds do not include the possibility that in a new trial the defendant will be reconvicted.

For the reasons foregoing, I would remand for a new hearing on post-conviction relief before another district judge. Nothing would then preclude the present district judge from appearing as a witness to present his observations, which of course would be pertinent to the issues in this case.


author: JUSTICE HUNT JUSTICE BARZ,

text:
    In re the MARRIAGE OF SUE SANDERSON HOODENPYLE, Plaintiff and Appellant, and IVAN W. HOODENPYLE, Respondent and Respondent.
    No. 89-378.
    Submitted on Briefs Jan. 18, 1990.
    Decided Feb. 14, 1990.
    Rehearing Denied March 20, 1990.
    787 P.2d 326.

      Brett C. Asselstine, Great Falls, for petitioner and appellant.
    Mike Fanning, Scott & Tokerud, Great Falls, for respondent and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Sue Sanderson Hoodenpyle, petitioner and appellant, appeals from an order of the District Court of the Eighth Judicial District, Cascade County, denying her motion to modify custody. We affirm.

This Court summarizes the issue on appeal as whether the District Court erred in finding that appellant failed to establish the statutory factors set forth in sec. 40-4-219, MCA, as required for a modification of custody.

The parties were married on February 5, 1983. Two children were born of the marriage — Sheila Ann and Mitchell Gary, both preschoolers. On September 10, 1987, Sue filed a petition for dissolution of the parties’ marriage. Both parties sought custody and Ivan Hoodenpyle, respondent, was granted temporary custody during dissolution proceedings. Subsequently, the parties stipulated that Ivan would have temporary custody. A decree of dissolution was entered on February 2, 1988, which granted the parties joint custody with Ivan as the primary custodian. The parties both resided in Cascade, Montana, at that time. Sue had visitation of the children alternating weeks although no specific visitation order was put into effect. Sue was ordered to maintain a health insurance policy on the children.

Also on February 2, 1988, Sue remarried and twin daughters have since been born of the marriage. Sue and her new family continue to reside in Cascade while Ivan now resides with the children in Great Falls, Montana.

On June 6, 1988, Sue filed a motion to modify custody, which was resisted by Ivan. The parties stipulated to a homestudy on each of the parties. The homestudy was conducted by a social worker employed by the Department of Family Services.

A hearing on the matter was held on April 7, 1989. Several witnesses testified, including the social worker who conducted the homestudy, and exhibits were introduced, including the homestudy report of the Department of Family Services. The social worker testified as to her home investigations as documented in the homestudy report. She stated that Ivan’s housekeeping standards were “marginal” but that her investigation of his home did not reveal any evidence of dirty dishes, dirty laundry, or garbage. The social worker further testified that Sue was a better disciplinarian but other testimony revealed that disciplinary measures taken by Ivan were very similar. The social worker also stated that when she visited Ivan’s home, Mitchell “looked real scruffy.” However, the social worker did testify that the children, who had arrived at Sue’s home from Ivan’s home, were well dressed and well kept. The homestudy report also set forth the statements of Sheila’s preschool teacher who stated that there was not any difference in Sheila’s “dress, hygiene and attitude” despite which parent had physical custody of her.

On April 13, 1989, the District Court entered its findings of fact, conclusions of law and order. The court denied Sue’s motion to modify the joint custody arrangement and ordered a continuation of child support and health insurance plans set forth previously. The court further ordered that Sue shall have visitation of the children on alternate weeks until their school schedule makes the arrangement impracticable. From the order Sue appeals.

The standard of review in a custody determination is that this Court will not disturb a district court’s findings unless there is a “clear preponderance of evidence against such findings.” Cameron v. Cameron (1978), 179 Mont. 219, 227, 587 P.2d 939, 944. See also In re the Marriage of Ereth (1988), 232 Mont. 492, 757 P.2d 1312, 45 St.Rep. 1223. The District Court’s order will be upheld unless a clear abuse of discretion is shown. In Re the Marriage of Rolfe (1985), 216 Mont. 39, 699 P.2d 79, 82.

Here, Sue alleges that, because the homestudy report recommended physical custody of the children be awarded to her, the District Court erred in continuing the joint custody arrangement on an alternating weekly basis with Ivan as primary custodian. We disagree.

Montana favors joint custody. Section 40-4-222, MCA. An award of joint custody, in accord with sec. 40-4-223, MCA, is to be made according to the best interests of the child as set forth in sec. 40-4-212, MCA.

Here, the District Court instituted a joint custody arrangement where Sue would have visitation alternating weeks until the arrangement interfered with the children’s school schedule. Both children are of preschool age.

Once a custody arrangement is established, a party may move for modification under sec. 40-4-219, MCA. However, one moving for a modification under the statute must prove that a change has occurred in the circumstances of the children or custodian that necessitates the change in accord with the best interest considerations set forth in sec. 40-4-212, MCA. Section 40-4-219, MCA, provides:

“The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to tbe court at the time of the entry of the prior decree, that a change has occurred in circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child and it if further finds that:
“(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.” (Emphasis ours.)

Here, while the record reflects that Sue’s home may be better maintained, we cannot say that Ivan’s housekeeping shortcomings endanger the children seriously in any way. Sue has failed to convince this Court, as she failed to convince the District Court, that a change in circumstances has occurred which necessitates a modification of custody in accord with the best interests of the children. There was no abuse of discretion.

Affirmed.

JUSTICES SHEEHY, WEBER and McDONOUGH concur.

JUSTICE BARZ,

dissenting:

I would reverse and remand this case for further consideration of evidence concerning Ivan Hoodenpyle’s fitness to serve as residential custodian of Sheila and Mitchell.

Appellant Sue Fey met the jurisdictional test of sec. 40-4- 219(1), MCA, justifying the District Court’s determination of a modification of custody. Both the majority in this opinion and the District Court focused on the least significant and most superficial issue raised in regard to the potential for serious endangerment to these children: Respondent’s ability as a housekeeper.

The majority disregards evidence of respondent’s abuse of various chemical substances. Respondent reportedly had difficulty relating to the children of a woman he lived with for an extended period prior to marrying appellant. These difficulties extended to respondent’s verbal abuse of the children, a pattern carried out in his treatment of Sheila and Mitchell during the home investigation conducted by Jan Schindell. Respondent further has a history of domestic abuse, and was once arrested on such a charge. There is evidence respondent repeatedly left Mitchell and Sheila in the care of Ron Latin who was recently convicted of selling illegal drugs. Respondent demonstrated marked bitterness and hostility toward appellant and refused to desist in his criticism of her in the presence of the children even when requested to do so by the social worker. Appellant indicates that respondent has interfered with her visitation. The respondent in fact requested that the lower court reduce her visitation to one weekend per month. While there is evidence of the children’s good physical health and acceptable appearance, I would point out that Sheila and Mitchell spent every other week with appellant during the time period in which Jan Schindell conducted the home study. The home study indicates appellant’s home is comfortable and the environment stable and nurturing. Sheila and Mitchell appeared to relate well to their step-father and baby sisters.

Respondent’s substance abuse, his history of domestic violence and verbal abuse create a very real potential for the serious endangerment of the physical, mental and emotional well-being of these young children. Having leapt the jurisdictional hurdle, the District Court must consider the best interests of the children. In this case, their best interests certainly lies with appellant. The potential for harm far outweighs the negative impact of a change in custody mitigated in any event by the rotating visitation schedule.

Recently we held that when a step-parent’s verbal hostility coupled with periodic substance abuse created an unpleasant home environment the District Court properly modified custody. In re the Marriage of Anderson (Mont. 1989), [240 Mont. 316,] 783 P.2d 1372, 46 St.Rep. 2155. The only physical abuse alleged in that case was committed by the step-parent against the family dog. The facts of the instant case give more immediate and compelling cause for concern.


text:
    IRVIN ELLIS LARSON, William Larson, Wyley Good, Thomas Keeley, Melvin King, Paul Lehman, Ronald Paige, Robin W. Sparks, and Thomas L. Tope, Plaintiffs and Appellants, v. FIRST INTERSTATE BANK OF KALISPELL, and First Interstate Bancorp, Inc., Defendants and Respondents.
    No. 89-389.
    Submitted on Briefs Dec. 21, 1989.
    Decided Feb. 14, 1990.
    786 P.2d 1176.

      Sidney R. Thomas and Martha Sheehy, Moulton, Bellingham, Longo & Mather, Billings, and William A. Rossbach, Rossbach & Whiston, Missoula, for plaintiffs-appellants.
    Dana L. Christensen and Debra D. Parker, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendants-respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs, limited partners in Crystal Lakes Limited Partnership (“Crystal Lakes”), brought this action to recover damages as a result of defendants’ alleged tortious acts against Crystal Lakes, including forcing the general partner to breach his fiduciary duties. The defendants moved to dismiss for failure to state a claim upon which relief can be granted. The District Court for the Eleventh Judicial District, Flathead County, granted the motion and dismissed the Complaint. Plaintiffs appeal. We reverse.

The sole issue for our consideration is whether the District Court properly dismissed the plaintiffs’ Complaint for failure to state a claim for which relief could be granted?

It is a well established rule in Montana that a Complaint should not be dismissed for failure to state a claim upon which relief may be granted unless it appears certain that the plaintiff is entitled to no relief under any set of facts which could be proved in support of his claim. See Mogan v. City of Harlem (1987), 227 Mont. 435, 739 P.2d 491. On a motion to dismiss under M.R.Civ.P. 12(b)(6), the court takes the allegations of the plaintiff to be true and construes the allegations in a light most favorable to the plaintiff. Contway v. Camp (Mont. 1989), [236 Mont. 169,] 768 P.2d 1377, 46 St.Rep. 270.

Following are the pertinent portions of the plaintiffs’ Complaint:

Paragraph I: Plaintiffs William E. Larson, Wyley Good, Thomas Tope, Melvin King, Irvin Larson and Paul Lehman entered into an agreement with Rolland Andrews to form a limited partnership known as Crystal Lakes Development Company, with plaintiff William E. Larson and Rolland Andrews as general partners and the other plaintiffs as limited partners. The purpose of Crystal Lakes was to acquire and develop certain real estate in the vicinity of For-tine, Montana as a golf course and related recreational and residential development.

Paragraph II: In 1979 and 1980 three additional partners joined Crystal Lakes: plaintiffs Thomas Keeley, Robin Sparks and Ronald Paige. On April 9, 1981, William E. Larson resigned as a general partner and became a limited partner.

Paragraphs III and IV: In order to acquire property and develop Crystal Lakes Country Club and subdivision, Crystal Lakes entered certain financial arrangements with First Interstate Bank of Kalispell (“Bank”). Crystal Lakes depended on the Bank to provide it with loans and other financial assistance, and for information and advice in the management and development of the business. Over time Bank officials became more involved in directing Crystal Lakes on how it should operate and on what the Bank required it to do to keep obtaining financing.

Paragraphs V and VI: For the first few years Crystal Lakes made steady progress in developing the real estate and was able to keep current on its obligations. The Bank’s involvement increased. Plaintiffs allege the Bank urged Crystal Lakes to acquire an additional 600 acres of land (“Vredenburg Land”), even though it would entail a significant increase in the total debt.

Paragraphs VII and VIII: The Vredenburg Land was already encumbered by a large debt to the Bank and one of the other subsidiaries of Western Bancorp (“Bancorp”). In order to induce Crystal Lakes to purchase the Vredenburg land, Bank officials entered into an agreement whereby the Bank promised Crystal Lakes that if it purchased the acreage, the Bank would provide Crystal Lakes with a loan to purchase the land and an open credit line up to five million dollars to enable Crystal Lakes to have sufficient funds to fully develop the property. The Bank further agreed that once the property was fully developed, the five million dollar credit line would be converted to a long term real estate loan.

Paragraphs VIII through XI: In reliance upon these promises, Crystal Lakes entered into agreements to purchase the Vredenburg land for $1,500,000. At the time of the closing, Andrews was assured by the Bank that Crystal Lakes would have the time and credit it needed to make the project work. In reliance on this promise, general partner Andrews entered into the agreement on behalf of Crystal Lakes. Crystal Lakes then initiated major expansion efforts, borrowing additional funds and doing additional developments on the property. On August 5, 1982, the general partner executed a mortgage with the Bank which reflected the five million dollar credit line the partnership agreed to as part of the earlier agreement. During this period of time, the Bank came more directly under the control of Bancorp.

Paragraphs XII through XV: In approximately June of 1983, the Bank, under the direction of Bancorp, gave the partnership notice that it no longer intended to perform as promised, breaching its agreement to provide credit and compelling all of the plaintiff limited partners individually to enter into a new “work out” agreement. Under the terms of this agreement, the Bank would provide limited additional short term funding, but would not give the partnership the financial assistance agreed to and would not permit Crystal Lakes to continue to develop the land completely. The general partner, Andrews, was compelled to pledge all his personal assets to the Bank. After the execution of the new work out agreement, the Bank stopped all further cooperation and assistance and made it impossible for the partnership to sell the property for its full value.

Paragraph XVI: On May 15, 1985, the Bank forced the general partner to sign certain documents, including a deed in lieu of foreclosure, to deed over essentially all the real estate of thé partnership to the Bank. These documents were coerced by financial pressure on the general partner who had pledged all of his personal assets to the Bank. The Bank, under the direction of Bancorp, knowingly forced the general partner to violate his duty of trust and good faith to the limited partners. This resulted in severe financial detriment to the limited partners, causing them to lose their investment and all prospects of profit from that investment.

Paragraph XVII: General partner Andrews’ actions under duress caused substantial detriment to the limited partners and Andrews breached his duties of trust and good faith to the limited partners. He did not advise the limited partners of his actions or in any way give them notice of the foreclosure documents until approximately one month later.

Plaintiffs sued to recover damages claimed by defendants’ alleged tortious acts toward Crystal Lakes. Defendants moved to dismiss for failure to state a claim upon which relief may be granted. The District Court granted the motion and dismissed the Complaint. Plaintiffs appeal.

I

Did the District Court properly dismiss the plaintiffs’ Complaint for failure to state a claim for which relief may be granted?

In granting the Motion to Dismiss, the District Court concluded that the Complaint failed to state a claim for which relief may be granted and more specifically, because the named plaintiffs were not the real parties in interest. The memorandum of the District Court pointed out that the plaintiffs argued that their losses were individual losses rather than losses to the partnership so that the individual partners could successfully maintain the present action. The District Court concluded that the Montana derivative action statutes, secs. 35-12-1401 through 1404, MCA, granted a limited partner the right to bring only a derivative action in the right of the limited partnership. The court based its decision on the case of Phillips v. Kula 200 II (1983), 4 Haw.App. 350, 667 P.2d 261, 262, which held:

“Limited partners may not maintain individual actions for damages allegedly caused by a breach of the fiduciary duty owed by the general partners to the limited partnership. The only way they may pursue that claim is derivatively.”

The District Court concluded that the Complaint demonstrated that any profits which the plaintiffs alleged they were entitled to recover were based on their expectations from the limited partnership and that any damage had accrued as a result of the Bank’s interactions with the general partner. The District Court concluded that the relief sought by the plaintiffs was available to them only by derivative action and that they were bound to follow that course.

In the appeal, the plaintiffs concede that Counts II, III and IV are properly to be brought as derivative actions or claims. Plaintiffs argue that Count I, which alleges that the defendants assisted and compelled the general partner to breach his duty of trust and good faith to the limited partners, allows the partners to bring individual actions as distinguished from the derivative action as limited partners.

Defendants maintain that the plaintiffs’ claim failed to state a claim upon which relief could be granted because the action must be brought as a derivative action and the Complaint failed to set forth with particularity the effort of the plaintiffs to secure initiation of the action by the general partner, as required by sec. 35-12-1403, MCA.

The controlling statutes for derivative actions in partnerships are secs. 35-12-1401 through 1404.

Section 35-12-1401, MCA, states:

“A limited partner may bring a derivative action in the right of a limited partnership to recover a judgment in its favor if the general partners having authority to do so have refused to bring the action or an effort to claim those general partners to bring the action is not likely to succeed (emphasis added).”

Section 35-12-1403, MCA, states:

“In any derivative action, the Complaint shall set forth with particularity the effort of the plaintiff to secure initiation of the action by a general partner having authority to do so or the reasons for not making the effort (emphasis added).”

Plaintiffs contend that under M.R.Civ.P. 9(a) they do not have to aver the capacity as a derivative action. It states:

It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party.”

M.R.Civ.P. 23.1 states (in part):

“In a derivative action . . . the Complaint shall allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authority and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort.”

The more specific rule governs. In view of the wording of the foregoing code sections and Rule 23.1, it would have been better practice for the plaintiffs to have specifically pleaded the appropriate allegations to meet those provisions. They did not specifically do so. However, Paragraph XVI of the Complaint did state in pertinent part as follows:

“On May 25,1986, the Bank . . . forced the general partner to sign certain documents ... to deed over essentially all of the real estate of the partnership to the Bank. These documents were coerced by financial pressure on the general partner who had pledged all of his personal assets to the Bank. The Bank . . . knowingly forced the general partner to violate his duty of trust and good faith to the limited partners . . . .”

Rule 23.1 was considered in S-W Co. v. John Wight, Inc. (1978), 179 Mont. 392, 403, 587 P.2d 348, 354, as it applies to corporations. In that case, this Court made clear that as an alternative to making a demand upon the board of directors, the plaintiffs may show “such a state of facts as disclose that the demand, if made, would have been entirely unavailing.” Plaintiffs argue that Paragraph XVI of the Complaint is sufficient to demonstrate that the demand would have been unavailing.

The key element of our analysis is to determine from the Complaint if it does appear beyond doubt that the plaintiffs cannot prove a set of facts which would entitle them to relief. From the Complaint we can determine the names and statuses of all the limited partners. While it would have been appropriate to state in the pleading that the limited partners were suing in a derivative action in the right of the limited partnership, the capacity of the limited partners to sue does appear from the Complaint. As a result, using the theory of Mont.R.Civ.P. 9(a), we conclude that under the record of this case it was not essential that the plaintiffs allege that they were suing in a derivative capacity in the right of Crystal Lakes.

Both sec. 35-12-1403, MCA, and Mont. R. Civ. P. 23.1, require however, that the Complaint set forth with particularity the efforts on the part of these plaintiffs to obtain action by the general partner, or the reasons for their failure to make that effort. Clearly it would have been proper for the plaintiffs to allege with particularity as so required. Had they done so, this extended controversy might have been eliminated.

Notwithstanding this failure, was it necessary that the District Court dismiss the Complaint? From the allegations of the Complaint, and in particular Paragraph XVI, the allegations demonstrate that the Bank forced the general partner to sign various documents and to deed over the real estate of the limited partnership and in so doing, knowingly forced the general partner to violate his duty of trust and good faith. While not clearly satisfactory, these allegations do demonstrate a reason for a failure on the part of the limited partners to request of the general partner that he commence the suit. A reasonable conclusion from the allegations is that a general partner who has knowingly executed legal instruments of conveyance to the Bank, will not commence an action in behalf of the limited partnership because of the violation of trust and good faith by the general partner. We therefore conclude that it does not appear beyond doubt that the plaintiffs cannot prove their effort to secure initiation of the action by the general partner or the reasons for not making the effort.

We further conclude that a reasonable alternative for the District Court was to allow the plaintiffs to remedy the defects of the Complaint through amendment. The Complaint is sufficient to establish that the plaintiffs have the statutory right and standing to bring a derivative cause of action and that the plaintiffs are proper plaintiffs in such an action. We hold that the Complaint did not justify the entry of the dismissal for failure to state a claim upon which relief may be granted.

We reverse the order of the District Court, and remand with the direction that the plaintiffs shall be allowed to make appropriate amendments to the Complaint and for further proceedings consistent with this opinion.

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

JUSTICE SHEEHY did not participate in this opinion.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANGELO MORENO, Defendant and Appellant.
    No. 89-525.
    Submitted on Briefs Jan. 11, 1990.
    Decided Feb. 14, 1990.
    787 P.2d 334.
    Brad L. Belke, Butte, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert M. McCarthy, County Atty., Brad Newman, Deputy, Butte, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Angelo Moreno was convicted of felony burglary in the District Court of the Second Judicial District, Silver Bow County. He appeals. We affirm.

The sole issue on appeal is whether the evidence is sufficient to support the jury’s verdict of guilty.

On November 11, 1988, between 7:30 and 9:00 p.m., Karen Barclay’s home in Butte, Montana, was burglarized. Barclay reported the burglary, and the police took an inventory of the missing property, which included a color TV, a compact disc player, a VCR, and numerous items of jewelry. One week later, a gold Seiko watch matching the description of one taken in the Barclay burglary was located at a Butte pawnshop.

Barclay identified the watch in the pawnshop as hers. The pawn receipt was in the name of Cheryl Fleischaker. Fleischaker told the police that she had received the watch as a gift from Terri Sullivan May. When May was contacted, she told the police officer that she had received the watch from defendant’s wife on November 11, 1988, as payment for babysitting.

May then gave a statement to police that she was at the Moreno house on November 11, 1988, at approximately 10:00 p.m. She stated that Moreno and another man entered the house and went into the bathroom, along with Moreno’s wife. May said that when Moreno’s wife came out of the bathroom, she showed May numerous items of jewelry and gave May the watch and a necklace. May also stated that the men said, “That is the house we just hit,” when a police scanner in the house gave the address of the Barclay burglary.

May produced the necklace Moreno’s wife had given her, and Barclay identified it as hers. A search warrant was obtained for Moreno’s house and a piece of a silver chain was found on a bookshelf in the house. Barclay identified the chain as hers.

Barclay, Fleischaker, May, and two police officers testified at trial for the State. Moreno produced five witnesses. All relatives of his, they testified that Moreno had been at a family birthday party at Pizza Hut from 7:00 p.m. to 10:00 p.m. on November 11, 1988. Moreno’s brother and sister-in-law testified that Moreno had been at their house most of the day on November 11, 1988, and that they had given him a ride from their home to the birthday party. Moreno took the stand and gave testimony consistent with that of his family, denying any connection with the burglary.

Is the evidence sufficient to support the jury’s verdict of guilty?

Moreno asserts that the State failed to meet its burden of proving that he was ever at or inside the Barclay residence or that he had possession or control of any of the missing property. He also argues that the testimony of May, the State’s chief witness, should have been viewed with distrust. He asserts that she should be treated as an accomplice because if her testimony is to be believed she knowingly received stolen property.

This Court’s function on review of the sufficiency of the evidence for a criminal conviction is to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573, first cited by this Court in State v. Rodriguez (Mont. 1981), [_Mont._,] 628 P.2d 280, 283, 38 St.Rep. 578F, 578I.

An accomplice is one who unites with the principal offender in the commission of a crime, and a receiver of stolen property is not an accomplice of the thief of that property. State v. Rodriguez (1987), 228 Mont. 522, 524, 744 P.2d 875, 876-77. There is nothing in the record to indicate that May had anything to do with the commission of the burglary. Therefore we conclude that there was no need for the jury to be instructed that May’s testimony must be viewed with distrust.

There is a definite conflict in the evidence between the testimony of May about Moreno’s whereabouts and activities on the evening of November 11, 1988, and the testimony of Moreno and his family members on the same subject. The credibility of witnesses and the weight to be assigned to their testimony are to be determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. State v. Green (1984), 212 Mont. 20, 23, 685 P.2d 370,

Viewed in the light most favorable to the State, the evidence in this case showed that the Barclay residence was burglarized between 7:30 and 9:00 p.m. on November 11, 1988; that Moreno was not authorized to be in the Barclay residence; that later that night Moreno and a companion arrived at Moreno’s house and went into the bathroom with Moreno’s wife, who then came out and gave two pieces of jewelry stolen from Barclay’s house to May; that Moreno’s companion commented that Barclay’s address heard on a police scanner “is the house we just hit;” that several weeks later, during a search of Moreno’s home pursuant to a search warrant, a third piece of jewelry stolen in the Barclay burglary was found on a bookshelf. Moreno concedes that circumstantial evidence may be sufficient as a matter of law to support a criminal conviction. We hold that, based on the facts adduced at trial, a rational trier of fact could have found Moreno guilty of the essential elements of burglary beyond a reasonable doubt.

Affirmed.

JUSTICES HUNT, BARZ, WEBER and McDONOUGH concur.