author: JUSTICE HUNT

text:
    DARLENE M. VINCELETTE, Plaintiff and Appellant, v. METROPOLITAN LIFE INS. CO. and BILLINGS SHERATON HOTEL, Defendants and Respondents.
    No. 95-006.
    Submitted on Briefs July 27, 1995.
    Decided October 12, 1995.
    52 St.Rep. 1035.
    903 P.2d 1374.
    273 Mont. 408.

      For Appellant: Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondent: Calvin J. Stacey, Stacey & Walen, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant brought suit against respondents in the Thirteenth Judicial District Court, Yellowstone County, seeking to recover for injuries sustained when she fell in the Billings Sheraton Hotel. At the close of discovery, respondents moved for summary judgment, claiming no material issues of fact remained in dispute, and therefore they were entitled to summary judgment as a matter of law. After the motion was briefed by both parties, the District Court entered summary judgment in respondents’ favor. Appellant appeals and we reverse.

The sole issue raised on appeal is whether the District Court erred in granting summary judgment.

On March 20, 1989, appellant fell while entering the Billings Sheraton Hotel (the Hotel). According to her complaint, she was in the foyer of the parking lot entrance, between the inner and outer sets of doors. She approached the inner doors and then stepped backwards to allow them to be opened out towards her. As she stepped back, she fell and injured her back. Appellant believes she fell because she had caught the heel of her high-heeled shoe in a small hole in the carpet and could not maintain her balance as she stepped back. She therefore alleges her fall was caused by either a defect in the carpet or negligent maintenance of the carpet.

The Hotel generally denied the allegations, and both sides conducted discovery. At the end of discovery, respondents moved for summary judgment, which was granted by the District Court.

Did the District Court err in granting respondents’ motion for summary judgment?

Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to summary judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Brown v. Demaree (1995), [272 Mont. 479], 901 P.2d 567, 569; White v. Murdock (1994), 265 Mont. 386, 389, 877 P.2d 474, 476. In summary judgment cases, this Court’s standard of review is identical to the trial court’s, and we will utilize the same criteria employed by the trial court to determine whether summary judgment should have been granted. Brown, [272 Mont. 479], 901 P.2d at 569; Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

The party seeking summary judgment bears the burden of demonstrating the absence of genuine factual issues. If the moving party demonstrates such an absence, then the burden shifts to the non-moving party, who must show that a genuine issue of fact does exist. First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681. All inferences which may be reasonably drawn from the record are to be drawn in favor of the non-moving party. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069; Reaves v. Reinbold (1980), 189 Mont. 284, 287, 615 P.2d 896, 898.

A cause of action in negligence consists of four elements: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Brown, [272 Mont. 479], 901 P.2d at 569, citation omitted. Negligence cases are generally not susceptible to summary judgment. Brown, [272 Mont. 479], 901 P.2d at 569; See also Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018-19; Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. In particular, negligence cases where the question of causation is in dispute are rarely amenable to summary judgment because “it is axiomatic that questions of causation are for the finder of fact to decide.” Bossard v. Johnson (1994), 265 Mont. 272, 281, 876 P.2d 627, 632 (Nelson, J., dissenting).

In the case at bar, appellant was at the Hotel as a guest, and, as such the Hotel owed to her a duty of due care. “[T]he owner of a premises has a duty to use ordinary care in maintaining his premises in a reasonably safe condition and to warn of any hidden or lurking dangers.” Brown, [272 Mont. 479], 901 P.2d 569 (citations omitted). Under this standard, the element of duty is clear and the parties do not contest it. Likewise, the parties do not contest that appellant fell while at the Hotel. But respondents contend the Hotel’s carpet was not the cause of her fall. However, “when a duty is imposed upon the defendant and the plaintiff’s allegations, if proven, would support a finding of a breach of the duty, summary judgment is improper.” Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 412, 637 P.2d 509, 511, citing Rennick v. Hoover (1980), 186 Mont. 167, 606 P.2d 1079. “Liability should not be adjudicated upon a motion for summary judgment where factual issues concerning negligence and causation are presented.” Dillard, 824 P.2d at 1018, citing Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931. Because causation is the issue in dispute, this case is particularly ill-suited for summary judgment.

Respondents cite several cases where this Court has found summary judgment to be appropriate. See Cooper v. Sisters of Charity of Leavenworth Health Services Corp. and St. James Community Hospital, Inc. (1994), 265 Mont. 205, 875 P.2d 352; Fauerso v. Maronick Const. Co. (1983), 203 Mont. 106, 661 P.2d 20; and Krone v. McCann (1982), 196 Mont. 260, 638 P.2d 397. However, in both Cooper and Fauerso the issue was duty, not causation, and they are therefore distinguishable. Causation was the issue in Krone, but that case is also distinguishable.

The incident in Krone took place in a rural open field, where the plaintiff acknowledged she had seen common debris such as logs and mounds of dirt lying around before she fell. Krone, 638 P.2d at 400. The court therefore agreed that the danger had been open and obvious. The incident in this case took place in a hotel, and appellant contends her fall was caused by a small hole in the carpeting — a hole that was not obvious and that could not reasonably have been anticipated. Moreover, in Krone, the Court noted that the plaintiff had been unable to specifically describe what caused her injury; she could not say what had caused her to trip. Krone, 638 P.2d at 400. In this case, appellant specifically alleges a small hole in the carpet to be the cause of her fall. She has therefore raised causation as a genuine issue, which the plaintiff in Krone apparently could not do.

The court found appellant had not brought forth evidence showing the carpet to be the cause of her fall. But the initial burden in the summary judgment proceeding should have been on respondents. It was up to them to show that no genuine issue of material fact existed. Only when and if they successfully made such a showing would the burden properly shift to appellant. Absent such an affirmative showing on the part of respondents, the moving party, it was error to shift the burden of proof to appellant, the non-moving party.

Respondents presented no evidence proving the fall was not caused by the carpeting. Instead they focused on the small amount of proof appellant offered to show that it was the carpeting. They correctly noted that appellant relied almost wholly on her own deposition and sworn affidavit. In response, respondents pointed out it was snowy and icy that night, and appellant had been drinking. Appellant has alleged it was the carpet that made her fall, thereby creating a genuine issue of material fact as to what caused the fall. Respondents have not shown that it was not the carpet. They have failed to dispose of this genuine issue of material fact.

If there is any genuine issue of material fact, summary judgment is inappropriate. “The question to be decided on motion for summary judgment is whether there is a genuine issue of a fact and not how that issue should be determined. The hearing on the motion is not a trial.” Duchesneau, 492 P.2d at 930 (citation omitted).

Because appellant has raised a genuine issue of material fact that respondents have failed to rebut, summary judgment is not warranted.

Reversed and remanded for further proceedings.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON, LEAPHART and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    FRANK CHILBERG, Plaintiff and Appellant, v. VALERIE WYNN ROSE and MID-CENTURY INSURANCE COMPANY, Defendants and Respondents.
    No. 94-542.
    Submitted on Briefs July 28, 1995.
    Decided October 13, 1995.
    52 St.Rep. 1038.
    903 P.2d 1377.
    273 Mont. 414.
    For Appellant: Thomas M. Keegan, Attorney at Law, Helena.
    For Respondent: Lyman H. Bennett, III; Morrow, Sedivy & Bennett, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Frank Chilberg (Chilberg) appeals from an order of the First Judicial District Court, Lewis and Clark County, granting Mid-Century Insurance Company (Mid-Century) summary judgment, concluding that Mid-Century was not liable under uninsured motorist coverages and medical coverages provided in separate insurance policies. We affirm.

The following issue is raised on appeal:

Did the District Court err in granting Mid-Century’s motion for summary judgment?

The material facts of the case are undisputed. On January 5,1992, Chilberg was a passenger in a car driven by Derek Whittenberg, which was struck by a car driven by defendant Valerie Wynn Rose. Chilberg was injured in the collision. Chilberg alleges that Rose failed to stop at a red light before running into the vehicle Whittenberg was driving. Rose was an uninsured motorist.

Whittenberg is the stepson of Jay Dean, the insured owner of the car involved in the accident. Dean purchased an auto insurance policy from Mid-Century covering the car in which Chilberg was riding. The policy provided coverage for medical expenses and for bodily injury caused by uninsured motorists. At the time of the accident, Dean had three cars insured through Mid-Century. Each car was covered under a separate policy and each policy provided identical coverages and policy limits. Each of the three policies had limits of $25,000 per person and $50,000 per incident for uninsured motorist, and $5,000 per person for medical coverage. Dean paid separate premiums for each of the coverages provided in the three policies. Mid-Century paid Chilberg a total of $30,000 under the uninsured motorist and medical coverages provided in the policy insuring the car in which Chilberg was riding.

On January 31, 1994, Chilberg filed suit against Rose and Mid-Century. Chilberg was unable to serve Rose. In his complaint, Chilberg alleged that while Mid-Century paid him for uninsured motorist and medical coverage available under the policy issued on Dean’s car involved in the accident, it refused to pay him uninsured motorist and medical coverage available under the policies issued on Dean’s other two cars. In its answer, Mid-Century alleged that Chilberg was not an “insured” under the terms of Dean’s other two policies. On May 20,1994, Mid-Century moved for summary judgment. On August 26, 1994, the District Court granted Mid-Century’s motion for summary judgment. Chilberg appeals.

Our standard in reviewing a district court’s grant of a motion for summary judgment is the same as that utilized by the district court; we are guided by Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. Thus, we determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. Minnie, 849 P.2d at 214. In this case, there is no genuine issue of material fact, therefore we need only consider whether the District Court was correct in concluding that Mid-Century was entitled to judgment as a matter of law.

For some time, this Court has approved the practice of “stacking” uninsured motorist coverages when the insured has paid separate premiums for the separate uninsured motorist coverages. See Kemp v. Allstate Ins. Co. (1979), 183 Mont. 526, 601 P.2d 20. In Kemp, we allowed stacking of uninsured motorist coverages under two separate policies. One policy was issued in Vermont and covered two cars, one of which was the car in which plaintiff’s decedent was an “occupant.” The second policy was a New York policy issued to decedent’s parents that covered three cars. There was no question in Kemp as to whether decedent was an “insured.” Under the Vermont policy, decedent was an “insured” by virtue of “occupying a motor vehicle owned by the named insured.” And, according to the New York policy, decedent was an “insured” because decedent was a “relative” of the named insured. As an insured under both policies, she was allowed to stack coverages for each insured vehicle within each policy.

In Sayers v. Safeco Ins. Co. of America (1981), 192 Mont. 336, 628 P.2d 659, one insurance policy covered two vehicles. That policy defined “insured” as the named insured or “any other person while occupying an insured automobile.” This Court determined that Sayers was occupying a car owned by Gary Galetti, within the meaning of the insurance policy, when an uninsured motorist struck the car. Galetti’s policy covered the car involved in the accident and another car owned by Galetti. Once we determined that Sayers was “occupying” the Galetti car, Sayers qualified as an insured under the policy and was, therefore, entitled to stack uninsured motorist coverage from the two Galetti cars. Accordingly, we held that a passenger, as well as an insured who pay premiums, can stack coverage for multiple cars insured under one policy. Sayers, 628 P.2d at 661.

Mid-Century argues that Sayers is distinguishable because in Sayers Safeco only issued one policy under which both cars were insured. Here, Mid-Century issued three separate policies to Dean and, according to Mid-Century, Chilberg does not qualify as an insured under the two disputed policies because he was not occupying the cars insured under the two disputed policies. We agree. Although this case, like Kemp and Sayers, involves a passenger it presents a different situation from those cases. In both Kemp and Sayers, the plaintiff fit within the definition of “insured” for each policy that was stacked. Once the injured party qualified as an insured, either as a relative or as an occupant, the injured party could stack the coverage for each vehicle within that policy.

Here, however, we have three separate vehicles covered by three separate policies. Each policy covers the named insured or “any other person while occupying your insured car.” Mid-Century paid the coverage for the one vehicle Chilberg occupied at the time of the accident. The question then becomes whether or not Chilberg is an insured under the other two policies and, therefore, entitled to stack as we allowed in Kemp and Sayers. The only way Chilberg can be an insured under the other two policies is if he were “occupying” the insured car named under that policy or if he fit within the definition of family member or relative. Obviously, Chilberg can only “occupy” one car at a time. Unlike Kemp, Chilberg is not a relative and cannot qualify as a family member under any of the policies. Unlike Sayers, the policy under which Chilberg qualifies as an insured passenger covers only one vehicle.

We note that the other two policies in question could arguably be stacked if the vehicle involved in the accident were acquired during either or both policy periods since both policies define “insured car” as including:

1. The vehicle described in the Declarations of this policy or any private passenger car or utility car with which you replace it. You must advise us within 30 days of any change of private passenger car or utility car. ...
2 .Any additional private passenger car or utility car of which you acquire ownership during the policy period. Provided that:
a. You notify us within 30 days of its acquisition, and
b. As of the date of acquisition, all private passenger and utility cars you own are insured with a member company of the Farmers Insurance Group of Companies. [Emphasis added.]

Here, the car involved in the accident was acquired in 1986. Dean purchased the two policies in question on May 6, 1991. Even though the car involved was insured after the other two policies became effective, Dean acquired it years before the effective period of the policies. Thus, it does not qualify as an “insured car” under the above-quoted policy language.

Recently, we examined several prior decisions in which this Court allowed plaintiffs to stack uninsured motorist coverages. We stated that “ [t] he public policy embodied in these decisions is that an insurer may not place in an insurance policy a provision that defeats coverage for which the insurer has received valuable consideration.” Bennett v. State Farm Mut. Auto. Ins. Co. (1993), 261 Mont. 386, 389, 862 P.2d 1146, 1148. However, in Bennett, the plaintiff qualified as an insured under both policies. She was the named insured in one policy and a spouse under the other policy. In addition, Bennett relies upon the reasonable expectations of the insured.

The public policy and rationale we restated in Bennett is not furthered by permitting Chilberg to stack the policies in the instant case. Chilberg was a passenger who neither had “reasonable expectations” of coverage under the policy nor did he qualify as an insured spouse or family member under more than one policy.

This Court also recognizes that underinsurance coverage is not dependent on the insured occupying a covered vehicle, rather, the coverage is personal to the insured. Chaffee v. U.S. Fid. & Guar. Co. (1979), 181 Mont. 1, 7, 591 P.2d 1102, 1105. In Chaffee, three cars were insured under one policy and we held that plaintiff, as an insured or a family member, was entitled to stack the coverage regardless of occupancy. Chaffee, 591 P.2d at 1105.

Here, however, the Chaffee holding is inapplicable. The policy at issue states: “Insured person means: (a) You or a family member, (b) Any other person while occupying your insured car.” The Chaffee holding that occupancy is not required applies only to subsection (a) of the policy definition, that is, the insured or a family member. As to passengers, logic dictates that you cannot be a “passenger” in a car unless you are occupying that car. If the occupancy requirement were deleted as to subsection (b), passengers, then the definition of insured becomes totally open-ended and encompasses not only the insured and his or her family, but also “any other person.” Public policy is not furthered by having insurance policies cover named insureds, their families, and “any other person.” Such global coverage would render the definition of insured nonsensical.

In this case, Chilberg does not fit within the definition of insured, either as a named insured, family member, or occupant of a vehicle insured under that policy. Further, the public policy rationale underlying stacking, namely prohibiting insurers from defeating coverage which the insured reasonably expected, is not served by stacking the policies in the instant case. See Kemp, 601 P.2d at 24; Chaffee, 591 P.2d at 1105.

We hold that the District Court properly determined that there were no genuine issues of material fact and that Mid-Century was entitled to judgment as a matter of law.

Affirmed.

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


text:
    RUSSELL B. GIBBY, Plaintiff & Respondent, v. NORANDA MINERALS CORPORATION, Defendant & Appellant.
    No. 94-029.
    Submitted on Briefs June 15, 1995.
    Rehearing Denied November 16, 1995.
    Decided October 16, 1995.
    52 St.Rep. 1042.
    905 P.2d 126.
    273 Mont. 420.

      For Appellant: Dana Christensen, Murphy, Robinson, Heckathorn & Phillips, Kalispell; Richard Ranney, Williams & Ranney, Missoula.
    For Respondent: Tom L. Lewis, Andrew D. Huppert, Lewis, Huppert & Slovak, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Noranda Minerals Corporation appeals from a jury verdict in favor of the plaintiff, Russell Gibby, and trial court orders from the Eighth Judicial District Court, Cascade County. We affirm.

We consider the following issues to be dispositive;

1. Did the District Court err in concluding that Noranda Minerals Corporation had a nondelegable duty to ensure safety at the Libby Adit?

2. Did the District Court err in instructing the jury that Noranda Minerals Corporation had a nondelegable duty to provide Russell Gibby a safe place to work under the Montana Safe Place to Work statute rather than leave this issue to the jury as a question of fact?

3. Did the District Court err in instructing the jury that Noranda Minerals Corporation had a nondelegable duty to follow safety standards promulgated under the authority of the Mine Safety and Health Act (MSHA), 30 U.S.C., § 801, and that violation of this standard was evidence of negligence?

4. Did the District Court err in concluding there was sufficient evidence to support the jury’s verdict that Noranda Minerals Corporation was negligent and that Noranda’s negligence was a proximate cause of Russell Gibby’s damages?

FACTS

In 1988, Noranda Minerals Corporation (Noranda) and Montana Reserves Company entered into a Mining Venture agreement for the purpose of acquiring property and developing mining facilities in the Cabinet Mountains of Northwest Montana. Noranda maintained a 55% interest in the ownership of the venture and was designated manager of operations. The venture agreement allowed Noranda to contract out the work of excavating tunnels.

Gilbert Corporation of Delaware, Inc. and the Dynatech Mining Company formed a joint venture to bid on one of Noranda’s excavating projects. Gilbert-Dynatech (Gilbert) was hired by Noranda to drive an exploration tunnel into the side of the Cabinet Mountains (the Libby Adit). Noranda and Gilbert entered a “Pinchase Order Agreement MP 11001 for the Underground Evaluation of Montana Project Montanore” (the POA).

Plaintiff and respondent, Russell Gibby (Gibby), filed this action after injuring his back while working on the Libby Adit. Gibby was employed by Gilbert in August 1989 as a shift superintendent. On September 12, 1990, Gibby was using a hand held jack-hammer, a type of drill which was known to hang up on fractured rock and loose debris. Gibby injured his back while pulling this hand-operated rock drill out of an anchor hole. Gibby sought and received workers’ compensation benefits through Gilbert. He then brought this action against Noranda in tort for his injuries.

Noranda filed an answer generally denying all allegations contained in Gibby’s complaint in April 1992. In July 1993, Noranda filed a motion for summary judgment on the grounds that Noranda had either delegated or discharged all duties to provide the plaintiff a safe place to work. This motion was denied in October 1993. Trial was held on October 25,1991, and the jury returned a verdict in favor of Gibby for $1.3 million.

Noranda appeals the pre-trial denial of the motion for summary judgment, the denial of the motions for a judgment as matter of law, to alter or amend the judgment or for a new trial, and the District Court’s jury instructions.

ISSUE 1

Did the District Court err in concluding that Noranda Minerals Corporation had a nondelegable duty to ensure safety at the Libby Adit?

The question of whether a duty exists is a question of law. Therefore, when reviewing a District Court’s conclusions we must determine whether the interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93, (citing Ira re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

Montana recognizes the general rule that owners or general contractors of a construction project will not be held liable for injuries to the subcontractor’s employees. Shannon v. Howard S. Wright Construction Co. (1979), 181 Mont. 269, 593 P.2d. 438. However, the general rule has become the subject to a “catalog” of exceptions. Shannon, 593 P.2d at 441 (citing Wells v. Thill (1969), 153 Mont. 28, 33, 452 P.2d 1015, 1017-18). One of these exceptions arises out of contracts, because Montana has long recognized that certain contractual obligations are nondelegable. See, e.g. Ulmen v. Schweiger (1932), 92 Mont. 331, 347, 12 P.2d 856, 859.

In 1979 we held that an owner or general contractor could be held liable for the subcontractor’s employee’s injuries. Shannon, 593 P.2d. 438. In that case, we found that the owner and the general contractor could be held liable given evidence of owner control over the subcontractor’s workplace environment. Shannon, 593 P.2d at 444. In 1981, we reaffirmed this holding and held that a nondelegable duty under Montana’s Safe Place to Work statute could arise out of a contract. Stepanek v. Kober Construction (1981), 191 Mont. 430, 625 P.2d 51. In Stepanek general contractor had assumed a nondelegable duty to a subcontractor when it contractually agreed to maintain and supervise job safety. Stepanek, 625 P.2d at 53.

Following Stepanek, in 1994, we found the Montana Department of Highways (MDOH) held a nondelegable duty of safety to the employees of a subcontractor. Steiner v. Department of Highways (1994), 269 Mont. 270, 887 P.2d 1228. In that case, a contract with the Federal Highway Administration required MDOH to monitor a highway project and assure compliance with safety regulations. Subsequently, we held that the provisions of the contract had created a nondelegable duty to provide a safe place to work for the employees of a subcontractor. Steiner, 887 P.2d at 1232.

In the instant case, the District Court looked at the contracts Noranda had signed in connection with the Libby Adit project. The record shows, first, the terms of the joint venture agreement with Mineral Reserves Company designate Noranda as the majority owner and manager of operations. Second, under the terms of the Purchase Order Agreement (POA) with Gilbert, Noranda had retained supervisory authority over Gilbert’s employees and the methods of operations, including employee safety. The POA provides a protracted list of provisions detailing the balance of power between Noranda and Gilbert. The POA gives Noranda the authority to:

a) Interpret the agreement and define intent and meaning and judge its performance,
b) make decisions on all matters relating to the execution and progress of the work,
c) stop the work whenever in N or anda’s opinion such stoppage may be necessary,
d) order the issuance of reports, data and other information as deemed necessary,
e) order Gilbert-Dynatec employee’s attendance at meetings and request assistance and cooperation on matters pertaining to the project,
f) perform safety inspection at the work site at any time,
g) remove from the job any subcontractor whose work did not meet Noranda’s approval,
h) make changes by altering, adding to or deducting from the work,
i) order and direct Gilbert-Dynatec to increase or improve the plant or equipment, improve methods, increase and employ additional force or to perform night work or overtime work when Noranda deemed any of Gilbert-Dynatec’s methods to be unsafe, inefficient or inadequate, or should Noranda deem that Gilbert-Dynatec was not proceeding with the work with sufficient diligence,
j) prevent the removal of any equipment from the job site without prior approval,
k) order Gilbert-Dynatec to expedite the work, work overtime, add additional shifts, employ additional men or provide additional equipment in the event that Gilbert-Dynatec fails to complete any part of the work in the time specified in the construction schedule,
l) stop the work or give whatever instruction were necessary to correct conditions which Noranda deemed a threat to the safety of life or the safety of any part of the work or joining property or if any emergency arose which affected or threatened to affect the safety of life or the safety of any part of the work or any adjoining property and then determine whether Gilbert-Dynatec was entitled to any extension of time or extra compensation due to the delay,
m) inspect the work and progress thereof,
n) order the removal and re-execution of all work which failed to conform to the agreement,
o) take possession of and use any completed or partially completed portions of the work, not withstanding that the period of time for completing may not have expired,
p) accelerate the work, delete portions of the work and/or use Noranda’s own forces or employ other contractors to correct any portion of the work which Noranda deemed improperly performed,
q) terminate the work in whole or in part for Noranda’s convenience at any time by written notice,
r) require an organized and effective safety program at every location where work was performed, and
s) monitor Gilbert-Dynatec’s performance, including safety and health violations, conduct unannounced periodic inspection with emphasis on safety and health and halt any/all work performed at the construction site or area until employees practices are changed or physical hazards were corrected.

In addition to this contractual grant of authority testimony offered at trial reflects that this authority was then exercised extensively at the job site. In considering both the contracts and Noranda’s exercise of authority there is a clear indication of “actual control” arising out of a contract. Stepanek, 625 P.2d at 55.

Because Noranda exercised the requisite control, we hold that the District Court’s conclusion that Noranda had retained control over the Libby Adit project and subsequently owed a nondelegable duty of safety to the respondent, was a correct interpretation of the law.

ISSUE 2

Did the District Court err in instructing the jury that Noranda had a nondelegable duty to provide Russell Gibby a safe place to work as under the Montana Safe Place to Work statute rather than leave this issue to the jury as a question of fact?

The District Court has discretion over jury instructions and we will not overturn a lower court’s decision absent an abuse of discretion. Chambers v. Pierson (1994), 266 Mont. 436, 880 P.2d 1350. When examining whether jury instructions were properly given or refused, we must consider the jury instructions in their entirety and in connection with the other instructions given and the evidence introduced at trial. Feller v. Fox (1989), 237 Mont. 150, 772 P.2d 842.

In this case Noranda disputes the District Court’s Jury Instruction 16A, which read as follows:

As a matter of law Noranda Minerals Corporation had a nondelegable duty to provide Russell Gibby a reasonably safe place to work. This nondelegable duty required:
(1) that Noranda furnish a place of employment that is reasonably safe for all persons working in the mine;
(2) that Noranda adopt and use practices, means, method, operations and processes that were reasonable adequate to render the place of employment safe; and
(3) that Noranda did any other thing reasonably necessary to protect the life, health and safety of Gilbert-Dynatec employees working in the mine.

This instruction contains the provisions of Montana Safe Place to Work statute, § 50-71-201, MCA, which reads:

Employer to provide safe workplace and to purchase, furnish, and require use of health and safety items — safe practices. Each employer shall:
(1) furnish a place of employment that is safe for each of his employees;
(2) with the exception of footwear, purchase, furnish, and require the use of health and safety devices, safeguards, protective safety clothing, or other health and safety items, including but not limited to air masks, hardhats, and protective gloves, that may be required by state or federal law, the employer, or the terms of an employment contract, unless the terms of a collective bargaining agreement provide otherwise;
(3) adopt and use practices, means, methods, operations, and processes that are reasonably adequate to render the place of employment safe; and
(4) do any other thing reasonably necessary to protect the life, health, and safety of his employees.

Noranda argues this instruction left the jury with the impression that Noranda was illegally and wrongfully attempting to delegate duties concerning safety in the workplace to Gilbert and furthermore Montana’s Safe Place to Work statute does not apply to Noranda because it is an owner, not an “employer.”

However, the statute is applicable to Noranda. Following the logic in Shannon, Stepanek, and Steiner, where a nondelegable duty has been created through a contract, the provisions of the Safe Place to Work statute apply. Stepanek, 625 P.2d at 55. As was discussed previously in Issue One, Noranda retained both the right and the duty to control job safety at the Libby Adit. This was a question of law for the court, not a question of fact for the jury. Therefore, Noranda had a nondelegable duty under Montana’s Safe Place to Work statute, § 50-71-201, MCA, to provide Russell Gibby with a safe working environment.

Furthermore, we must consider the instructions in their entirety. The legal principle of causation requires a two-tiered analysis. Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 576. The first tier is a determination of whether the action in question was the “cause-in-fact” of the damages, the second tier requires a determination of whether the actions proximately caused the damages. Kitchen Krafters, 789 P.2d at 574. The District Court concluded that it properly instructed the jury that Noranda’s conduct was a “cause-in-fact” of Gibby’s injuries “if it was a material element and substantial factor in bringing about the injuries.” An instruction on Montana’s Safe Place to Work provides the jury with a “cause-in-fact” instruction, this does not alleviate the jury’s duty to find Noranda’s actions (or inaction) as the proximate cause of Gibby’s injuries.

Therefore, we do not find reversible error upon review of the jury instructions. The District Court adequately instructed the jury on the applicable law, we affirm the District Court’s Instruction 16A.

ISSUE 3

Did the District Court err in instructing the jury that Noranda had a nondelegable duty to follow safety standards promulgated under the authority of the Mine Safety and Health Act, (MSHA), 30 U.S.C., § 801, and that violation of this standard was evidence of negligence?

The District Court has discretion over jury instructions and we will not overturn a lower court’s decision absent abuse of discretion. Chambers, 880 P.2d 1350. Instruction 16B read as follows:

The purpose of the Federal Mining Safety and Health Act (“MSHA”) is the protection of life, the promotion of health and safety, and the prevention of accidents. Under MSHA, Noranda had the nondelegable duty to:
(1) correct hazardous conditions at the mine (section 57.3200);
(2) provide experienced persons to examine ground conditions, haulage ways, travel ways, and surface areas both prior to commencement of work and periodically during performance of work in the mine (section 57.3401);
(3) inspect equipment and correct defects in the equipment, machinery, and tools that affect safety to prevent the creation of hazards to persons working in the mine (section 57.141000);
(4) prohibit use of machinery, equipment,and tools beyond the design capacity intended by the manufacturer, where such use may create a hazard to persons (section 57.14205);
(5) provide a competent person designated to examine each working place at least once each shift for conditions which may adversely affect safety or health and initiate appropriate action to correct such conditions (section 57.18002); and
(6) initiate appropriate action to correct such conditions (section 57.18002).

In Stepanek we concluded that a violation of federal regulations intended to protect the plaintiff could be considered by the trier of fact as evidence of negligence. Stepanek, 625 P.2d at 56. In this case Instruction 16B sets forth the nondelegable duties any “operator” of a mining operation has under the Federal Mine Safety and Health Act. The code defines an operator as:

[an] owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine; 30 U.S.C. § 802(d).

This was then read in conjunction with Instruction 16C which stated: “Failure to discharge nondelegable duties imposed by MSHA is evidence of negligence in Montana.” Following Stepanek, the jury could consider a violation of the Mine Safety and Health Act as evidence when determining negligence.

We hold that the instructions were correctly presented to the jury, and there was no abuse of discretion in giving Instructions 16B and 16C, and we therefore affirm the District Court in giving those instructions.

ISSUE 4

Did the District Court err in concluding there was sufficient evidence to support the jury’s verdict that Noranda was negligent and that Noranda’s negligence was a proximate cause of the plaintiff, Russell Gibby’s damages?

“[T]his court will affirm the verdict of a jury if there is substantial credible evidence on the record to support the verdict.” Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285,1287. In a negligence claim there are four elements: duty, breach, cause and damages. Whitfield v. Therriault Corporation (1987), 229 Mont. 195, 745 P.2d 1126.

We have already held that Noranda owed the respondent a duty to provide a safe work environment, thus satisfying the first element of negligence. Beyond this, evidence was introduced to show Noranda had breached this duty in failing to provide the appropriate equipment. Gibby was injured while using a hand held drill, a drill that was inappropriate for the task. This evidence satisfies the second element.

The third element of causation breaks down into “cause-in-fact” and proximate cause. Kitchen Krafters, 789 P.2d at 547. Again, we have already held that Noranda could be held legally responsible under the Safe Place to Work statute, the next question is whether this negligence was then the proximate cause of Gibby’s injuries. The District Court’s Instruction 17 read as follows:

The defendant’s conduct caused the plaintiff’s injuries if the conduct was a “cause-in-fact” and “proximate cause” of the plaintiff’s injuries ... The defendant’s conduct was a “proximate cause” of the plaintiff’s injuries if it appears from the facts and circumstances surrounding the incident that an ordinarily prudent person could have reasonably foreseen that injury or damage would be a natural and probable consequence of the conduct.

A review of the record supports a finding that Noranda knew of the loose debris at the mine site, knowing of these conditions it was generally known the type of hand held drill Gibby was using would be inappropriate. Therefore, there is substantial credible evidence to support a finding that Noranda’s failure to provide the proper equipment could reasonably lead to the type of injury Gibby suffered.

We hold there was substantial credible evidence to support the jury verdict, and no abuse of discretion in the District Court’s jury instructions on proximate cause.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. BRUCE HOLTE HAGEN, Defendant and Appellant.
    No. 94-589.
    Submitted on Briefs September 7, 1995.
    Decided October 17, 1995.
    52 St.Rep. 1048.
    903 P.2d 1381.
    273 Mont. 432.

      For Appellant: Stephen J. Nardi, Sherlock & Nardi, Kalispell.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Kathy Seeley, Assistant Attorney General, Helena; Robert Slomski, County Attorney, Thompson Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Bruce Hagen was convicted by a jury in the Twentieth Judicial District Court, Sanders County, of deliberate homicide in violation of § 45-5-102, MCA, and aggravated assault in violation of § 45-5-202, MCA. Hagen appeals the decision of the District Court denying his proposed jury instruction on justifiable use of force in defense of an occupied structure. He also appeals on the grounds of ineffective assistance of counsel. We affirm.

Hagen raises the following issues on appeal:

1. Did the District Court err in refusing Bruce Hagen’s proposed jury instruction on the justifiable use of force in defense of an occupied structure?

2. Was Bruce Hagen denied effective assistance of counsel?

Bruce Hagen is a fifty-eight-year-old retired federal government employee. Bruce and his wife, Gabby, lived in Sanders County, Montana, on Highway 200 between Plains and Thompson Falls. The Hagen residence is a mobile home with a log structure addition. Bruce and Gabby lived on Bruce’s government pension.

In late September 1993, a forest fire burned in the vicinity of the Hagen residence. The fire burned within approximately thirty feet of the Hagens’ home before it was stopped. Throughout the end of September and beginning of October, United States Forest Service personnel as well as private firefighters were in the area surrounding the Hagen residence extinguishing the fire.

Bruce received his pension checks the first of each month. On October 1, 1993, Bruce went to Krazie Ernies, a sporting good store and pawn shop in Thompson Falls, and retrieved his .12 gauge shotgun he had pawned there. When he returned home, Bruce, Gabby, and Steve Jennette, an acquaintance living in the Hagens’ camper trailer parked near their residence, began drinking. They drank throughout the afternoon. At approximately 2:00 p.m., Bruce and Steve began shooting the shotgun into a woodpile near the Hagen residence.

Officer Keith Danhoff of the Montana Highway Patrol was parked at the It Shop located directly across Highway 200 from the Hagen residence. Officer Danhoff heard the shots and drove up to the Hagen residence. He advised Bruce that he should not shoot the shotgun because firefighters and Forest Service personnel were still in the area. Officer Danhoff testified that Bruce became agitated and argumentative. Officer Danhoff returned to the It Shop where he heard one more shot come from the Hagen residence. Officer Danhoffwaited approximately twenty minutes and heard no more shots.

Between 5:00 and 6:00 p.m., Gabby stated that she wanted to go into town to buy tobacco and continue drinking. Bruce did not want to drive to town because he had been drinking and he did not like to drive at night. Bruce and Gabby argued over whether she should go to town. Ultimately, Bruce gave his truck keys to Steve Jennette and Steve and Gabby went to town. Brace remained at the Hagen residence.

At approximately 5:30 p.m., Sanders County Sheriff Sammy Tomas went to the Hagen residence to investigate the gunshots reported earlier in the afternoon. When Sheriff Tomas approached the house he observed that the front door was open with only the screen door being closed. Sheriff Tomas observed Bruce lying on the couch in the living room. Sheriff Tomas knocked on the screen door and yelled at Bruce, but was unable to wake him. Sheriff Tomas testified that he assumed Bruce was passed out and left the Hagen residence.

Gabby and Steve drove to town in Bruce’s truck. Gabby bought tobacco, and she and Steve proceeded to Dick’s Club, a local tavern, to drink. They stayed at Dick’s Club for several hours and consumed several drinks. Gabby and Steve left Dick’s Club and drove toward the Town Pump Casino. On the way to the Town Pump Casino, Gabby and Steve experienced mechanical problems with Brace’s truck. Gabby and Steve abandoned the truck at the Town Pump Casino and went inside to look for a ride home.

Gabby and Steve ran into acquaintances Jim Enger and his common-law wife, Alice Goodrich, at the Town Pump Casino. Jim and Alice, like Gabby and Steve, had been drinking and were intoxicated. Gabby explained to Jim and Alice that she and Steve were having vehicle problems. Jim and Alice called their friend, Reece Cobeen, at his home, and Reece agreed to come to the Town Pump Casino and give Gabby and Steve a ride home. Reece testified that he had not been drinking.

Reece drove a compact pickup truck; therefore, Steve and Jim rode in the back while Reece, Gabby and Alice rode in the cab. They arrived at the Hagen residence at approximately 1:00 a.m. on October 2,1993.

When the party arrived at the Hagen residence, Gabby invited everyone into the house. Steve and Reece were unloading Steve’s belongings from Reece’s truck and hauling them to the camper trailer located near the Hagens’ house. Gabby and Jim proceeded up the steps and onto the porch of the house. Gabby tried to open the door but was unable to do so. The door did not have a lock; instead, the Hagens customarily wedged a board between the door handle and the floor from the inside of the house. This barred the door closed and prevented it from being opened from the outside.

Gabby began knocking on the door and yelling for her husband, who did not respond. Gabby asked Jim to help her wake Bruce. Jim began kicking on the door and yelling for Bruce. Jim testified that he and Gabby banged on the door and yelled for approximately five minutes. Reece Cobeen testified that while Jim and Gabby were banging on the door, he and Steve finished moving Steve’s belongings into the camper and then went and stood near the bottom of the stairs. The witnesses’ versions of exactly what happened from this point vary slightly.

Jim testified that the door suddenly opened, and he entered the Hagen residence. He stated that Bruce answered the door carrying his .12 gauge shotgun. He testified that soon after entering the residence, Bruce struck him twice with the shotgun. Jim stated that he did not fall to the ground, but was knocked away from Bruce and was bent over toward the floor. He claims that Bruce then stated, “Jim get out or I’m going to kill you.” Jim testified that he turned and was heading for the door when he heard Bruce pump the shotgun lever. Jim heard the shotgun fire. Jim was struck in the left arm and left side of the body. He fell to the floor and remembered nothing else from the remainder of the incident.

Gabby testified that the door suddenly opened and her husband pulled or yanked Jim into the Hagen residence. She testified that the two men struggled. She claims that she then walked into the house and past Jim and Bruce. She proceeded to the rear of the house. While in the rear of the house, out of view of her husband and the others, she heard a shot or shots. She remained in the rear of the residence until the incident was over and then exited the residence through the back door.

Reece testified that he was standing near the foot of the stairs leading up to the front porch of the Hagen residence. He claimed that when the door opened, Jim, Gabby and Alice walked into the residence. He testified that as soon as they entered the residence, Bruce escorted Gabby back outside and told her to “just go.” Bruce then returned inside the residence where Jim and Alice were. Reece then heard a loud crashing noise, like someone or something had fallen to the floor. He then claimed he heard Bruce say, “Jim, don’t fuck with me or I will kill you.” He then claimed to have heard two gunshots coming from inside the residence.

Bruce testified that he was awakened by a loud, impatient banging on his front door. As he walked to the door, he picked up his loaded shotgun. He did not specifically recall removing the board which held the door shut, but admitted he must have done so to open the door. Bruce claimed that when he opened the door he was immediately encountered by a man on his front porch. He claimed he did not know that it was Jim at the time of the altercation. Bruce testified that he and Jim wrestled for the gun. Bruce claims that he struck Jim in the head with the gun, knocking him down. Bruce then testified that Jim made a move toward him. Bruce claimed that as Jim came toward him, he pumped the lever of the shotgun to transfer a shell from the magazine into the chamber and the gun fired. He claimed he then turned toward the door and saw a pair of legs rushing toward him. He pumped another shell into the chamber and fired. He then pumped the final shell into the chamber and fired again. He claimed he did not know who he was shooting and testified that he would have shot anyone at that time.

Of the three shots fired, the first shot hit Jim. Another shot struck the rails on the back of the porch. The other shot struck Alice in the midsection, causing massive injuries. Alice was dead when medical personnel arrived.

Alan Boehm, the State Crime Lab’s firearms and tool mark examiner, examined and tested the shotgun and testified that even if the trigger was depressed while the pump action was cocked, this particular shotgun would not fire. Boehm testified that the trigger would have to be released and then depressed again for the shotgun to fire. Boehm also testified that both Jim and Alice were shot from a distance of less than eight feet.

On October 22, 1993, Bruce was charged by information with one count of deliberate homicide and one count of aggravated assault in the Twentieth Judicial District Court, Sanders County. Bruce pleaded not guilty. Following the May 9 through 12,1994jury trial, Bruce was found guilty of both charges. He was sentenced to life imprisonment for deliberate homicide plus ten years for the use of a dangerous weapon. He was further sentenced to twenty years for aggravated assault plus ten years for the use of a dangerous weapon. The sentences are to run consecutively.

Issue 1

Did the District Court err in refusing Bruce’s proposed jury instruction on justifiable use of force in defense of an occupied structure?

At trial Bruce admitted shooting Jim and Alice, but claimed the shooting was justified in defense of himself and his property. Bruce sought jury instructions on justifiable use of force in defense of a person and justifiable use of force in defense of an occupied structure. The District Court gave the self-defense instruction, but refused to give an instruction on defense of an occupied structure. While settling the instructions, the State argued and the court agreed that defense of an occupied structure is only a defense to an unlawful entry. The court agreed that because Gabby invited Jim and Alice into the Hagens’ home, Jim and Alice’s entry into the residence was not unlawful. A district court must only instruct the jury on those theories and issues which are supported by evidence presented at trial. State v. Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396.

Bruce argues on appeal that the District Court misinterpreted Montana’s statute on justifiable use of force in defense of an occupied structure. He claims that the entry need not be actually unlawful; rather, the defendant must reasonably believe that the entry was unlawful based on the appearances presented to him.

The defense of justifiable use of force in defense of an occupied structure is set forth at § 45-3-103, MCA, which states:

A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon an occupied structure. However, he is justified in the use of force likely to cause death or serious bodily harm only if:
(1) the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or
(2) he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure.

Bruce argues that § 45-3-103, MCA, only requires his reasonable belief that Jim and Alice had unlawfully entered his residence for him to be entitled to an instruction on defense of an occupied structure. We disagree.

Section 45-3-103, MCA, states that an individual is justified in using force “when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry.” (Emphasis added.) This Court has consistently refused to apply the defense of an occupied structure statute in cases in which the initial entry into the structure was in fact lawful.

In State v. Sorenson (1980), 190 Mont. 155, 619 P.2d 1185, a bartender shot two bar patrons after an argument. This Court determined that, while the bartender may have wanted the patrons to leave the premises, their initial entrance into the bar was not unlawful. In affirming the trial court’s denial of the defendant’s proposed jury instruction on defense of an occupied structure, this Court stated:

[Section 45-3-103, MCA] is derived from Illinois which has substantially the same statute. [Citation omitted.]
Before the statute is applicable, Illinois case law requires that the entry must be unlawful; hence, the defendant may not assert justification where the victims enter upon the premises lawfully but subsequently engages in unlawful conduct for which the occupant of the dwelling seeks to expel the victim. [Citations omitted.]
.......
By its terms, this section only applies to efforts of a defendant to prevent or terminate an unlawful entry into occupied premises. It has no application to a lawful entry into premises. [Emphasis added.]

Sorenson, 619 P.2d at 1193-94. We have reiterated this position in State v. Beach (1991), 247 Mont. 147, 150, 805 P.2d 564, 566, determining that a defendant was not entitled to a defense of an occupied structure instruction when the entry which precipitated the incident was in fact lawful.

We find no merit in Bruce’s argument that, even if the entry was in fact lawful, he is entitled to an instruction on defense of an occupied structure if he reasonably believed that the entry was unlawful. As discussed above, this Court has consistently held that to assert the defense of justifiable use of force in defense of an occupied structure, the entry into the structure must in fact be unlawful. We refuse to expand the defense beyond what has previously been recognized. Thus, a defendant may not reasonably mistake a lawful entry for an unlawful entry and avail himself of the defense provided for in § 45-3-103, MCA.

Bruce failed to present any evidence establishing that the initial entry by Jim or Alice was unlawful. A review of the record reveals the following facts: Gabby invited Jim andAlice into the Hagen residence. Gabby knocked on the door in an attempt to awaken Bruce. Gabby requested Jim’s assistance in knocking on the door. Bruce removed the wooden brace which held the door closed and opened the door. Jim either walked in through the opened door or was pulled into the residence by Bruce. Based on the facts presented at trial, Bruce failed to set forth any set of circumstances under which Jim’s or Alice’s entry into the Hagen residence could be found to be unlawful. As discussed above, we conclude that an unlawful entry is a prerequisite to asserting the defense of justifiable use of force in defense of an occupied structure. Bruce therefore was not entitled to an instruction on justifiable use of force in defense of an occupied structure.

Issue 2

Was Bruce denied effective assistance of counsel?

Bruce argues that he was denied effective assistance of counsel and therefore is entitled to a new trial. In considering ineffective assistance of counsel claims, this Court has adopted the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

State v. Denny (1993), 262 Mont. 248, 251-52, 865 P.2d 226, 228 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Bruce presents several allegations of ineffective assistance of counsel which we will address in turn.

A. Defense counsel failed to object to the prosecution’s reference during jury voir dire to a witness who was not called at trial.

Bruce argues that he was denied effective assistance of counsel when his trial counsel failed to object to a line of questions during voir dire which referred to Steve Jennette, an individual who was at the Hagen residence the morning of the shootings but who was not called to testify. Following the selection of the twelve jurors, voir dire continued on the selection of alternate jurors. One member of the jury pool was Michael Wakefield, a pastor at a local church. During questioning of this prospective alternate juror, Wakefield stated that he knew Steve Jennette and had counseled Jennette after the shooting incident. Wakefield stated that he had received “first hand” information concerning the shooting from Jennette during these counseling sessions. This line of questioning occurred in the presence of the jurors already selected. Defense counsel did not object during the questioning of Wakefield.

In State v. McMahon (1995), [271 Mont. 75], 894 P.2d 313, we held that the district court erred in failing to grant the defendant’s motion for a mistrial when prospective jurors were allowed to comment on the defendant’s character during voir dire. However, McMahon is clearly distinguishable from this case. In McMahon, several jurors made substantial comments concerning what they perceived as the defendant’s poor character, in the presence of the entire jury panel. McMahon, [271 Mont. 75], 894 P.2d at 315-16.

In this case, no evidence concerning the substance of Jennette’s conversations with Wakefield was presented. In questioning Wake-field, the prosecution elicited information that Wakefield in fact knew Jennette and had discussed the shooting incident with him. No facts pertaining to the incident were disclosed. While it may have been reasonable for defense counsel to object to the line of questioning or request an in camera inspection of Wakefield, such actions by defense counsel were not mandated by the line of questioning. See Abernathy v. Eline Oil Field Services, Inc, (1982), 200 Mont. 205, 650 P.2d 772.

We conclude that defense counsel’s performance was not deficient because of his failure to object or request an admonishment or an in camera hearing. Therefore the first prong of the Strickland test is not satisfied.

B. Defense counsel failed to request a jury instruction on Bruce’s right to rely on appearances when asserting the defense of justifiable use of force.

While the defense requested and received an instruction on justifiable use of force, Bruce argues on appeal that his counsel should have requested an additional instruction concerning his right to rely on appearances. Bruce claims that the jury should have been instructed that he had the right to reasonably rely on the appearances presented to him at the time of the incident regardless of the actual danger. He maintains that trial counsel’s failure to request such a jury instruction constitutes ineffective assistance of counsel.

Jury instructions are generally considered to be within the province of an attorney’s trial tactics or strategies. State v. Bradley (1993), 262 Mont. 194, 199, 864 P.2d 787, 790. In reviewing a counsel’s performance, we will not second guess a calculated trial tactic. Bradley, 864 P.2d at 790. Further, while each party is entitled to instructions supported by the evidence, jurors need not be instructed on every nuance of an issue. In State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, this Court stated:

In examining self-defense instructions this Court has repeatedly stated several principles which govern the review of challenged instructions. The instructions must be viewed as a whole to determine if they have limited the defense from fairly presenting his theory of defense. The District Court need not give repetitious instructions nor instruct on every nuance of a theory of defense. [Emphasis added.]

Graves, 622 P.2d at 210. A review of the instructions in the present case reveals that the jury was sufficiently instructed on the defense of justifiable use of force.

The following instructions were given to the jury following trial — Instruction No. 19 reads:

Aperson is justified in the use of force or threat to use force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or serious bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or serious bodily harm to himself.

Instruction No. 21 reads in part:

You are to consider the following requirements of the law in determining whether the use of force claimed by defendant was justified:
(1) The defendant must not be the aggressor;
(2) The danger of harm to the defendant must be a present one and not made by a person without the present ability to carry out the threat;
(3) The force threatened against the defendant must be unlawful;
(4) The defendant must actually believe that the danger exists, that is, use of force by him is necessary to avert the danger and that the kind and amount of force which defendant uses is necessary;
(5) The defendant’s belief, in each of the aspects described, is reasonable even if it is mistaken.
You are further advised that even if you determine that use of force by defendant was not justified, the state still has the duty to prove each of the elements of the crime charged beyond a reasonable doubt. [Emphasis added.]

This Court has previously determined that self-defense instructions such as these, which are derived from the statutory language, are sufficient to convey the fact that the defendant may rely on the appearances present atthe time of the incident. State v. Reiner (1978), 179 Mont. 239, 251, 587 P.2d 950, 957.

We conclude that the jury was sufficiently instructed on the defense of justifiable use offeree. We therefore hold that Bruce’s defense counsel's performance was not deficient and thus the first prong of the Strickland test has not been satisfied.

C. Defense counsel failed to request an instruction on negligent homicide as a lesser offense.

Bruce argues that the evidence supported offering an instruction on the lesser offense of negligent homicide. Bruce claims that his trial counsel’s failure to request an instruction on negligent homicide amounts to ineffective assistance of counsel.

As previously stated, offering jury instructions is generally considered to be a discretionary trial tactic. Bradley, 864 P.2d at 790. At trial, the jury was instructed on the elements of deliberate homicide and mitigated deliberate homicide as well as the defense of justifiable use of force. Bruce’s trial counsel did not request instructions on negligent homicide.

Under the circumstances, not requesting an instruction on negligent homicide can easily be viewed as a legitimate trial tactic. Arguing negligent homicide at trial may have jeopardized defense counsel’s contention that Bruce acted knowingly in self-defense. While not deciding that a negligent homicide instruction is inconsistent with the defendant’s case, it was a reasonable tactic to avoid arguing negligent homicide in fear of undermining Bruce’s self-defense claim.

Because we conclude that defense counsel’s failure to request instructions on negligent homicide falls under the realm of counsel's trial tactics, we hold that defense counsel’s performance was not deficient and thus the first prong of the Strickland test is not satisfied.

D. Defense counsel failed to call a witness whose testimony tended to impeach the credibility and accuracy of Reece Cobeen’s testimony.

Bruce argues that a witness who spoke with Reece Cobeen after the shooting incident was available and willing to testify. This witness would presumably testify that Cobeen told him that he was standing at his pickup, not at the bottom of the stairs, when the shooting occurred. Bruce maintains that this witness would have discredited Cobeen’s testimony and thus would have raised a reasonable doubt in the minds of the jury.

Defense counsel admits that he negligently failed to get the witness on the stand. The State concedes that the failure of defense counsel to call this witness rendered counsel's performance deficient, thus satisfying the first prong of the Strickland test. However, the State maintains that Bruce has failed to establish that his counsel’s deficient performance was so prejudicial that he was denied a fair trial.

For the purpose of this appeal, we will assume without deciding that defense counsel’s failure to call a relevant witness resulted in deficient representation. We therefore proceed to the second prong of the Strickland test which addresses, “whether a reasonable probability exists that but for counsel’s deficient performance, the trial’s outcome would have been different.” State v. Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757.

Cobeen’s location in relationship to the front porch, while relevant to this case, is not dispositive. A review of the record reveals, absent Cobeen’s testimony in its entirety, substantial evidence to support the jury’s verdict.

Bruce admits shooting Jim and Alice. Bruce’s wife Gabby testified that Jim and Alice were her guests and that she had invited them into the Hagen residence. Jim and Alice were both unarmed at the time of the incident. Jim testified that Bruce called his name prior to shooting him. Bruce testified that after shooting Jim, he tinned and shot Alice without regard at whom he was firing. The testimony of the defendant Bruce Hagen, his wife Gabby, and the victim Jim Enger established substantial evidence to uphold the verdicts of deliberate homicide and aggravated assault.

We conclude that no reasonable probability exists that but for defense counsel’s deficient performance, the result of the trial would have been different. Based on the discussion above, we hold that Bruce was not denied effective assistance of counsel.

We affirm the decision of the District Court.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. BENEDICT JOHN HERMES, Defendant and Respondent.
    No. 94-211.
    Submitted on Briefs July 27, 1995.
    Decided October 19, 1995.
    52 St.Rep. 1055.
    904 P.2d 587.
    273 Mont. 446.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Ass’t Attorney General, Helena; Charles Sprinkle, Lincoln County Attorney; Bernard G. Cassidy, Deputy County Attorney, Libby.
    For Respondent: Amy N. Guth, Public Defender’s Office, Libby.
   JUSTICE GRAY

delivered the Opinion of the Court.

The State of Montana (State) appeals from the order of the Nineteenth Judicial District Court, Lincoln Comity, suppressing a statement of Benedict Hermes (Hermes). We affirm.

We address the following issues on appeal:

1. Did the District Court err in suppressing Hermes’ statement after finding that the statement was involuntary?

2. Did the District Court err in determining that the State could not use Hermes’ statement for impeachment purposes?

In September of 1993, Detective Craig Martin (Martin) of the Lincoln County Sheriff’s Office received information from Jeff Wedel (Wedel), a social worker with the Montana Department of Family Services, that Hermes had sexually assaulted S.S., a minor child. Martin interviewed S.S. and her father about the incident on September 23, 1993. Later the same day, Martin and Wedel went to Hermes’ residence in an isolated part of Lincoln County, where Martin interviewed Hermes in Wedel’s pickup truck. Martin recorded the statement.

On October 12, 1993, the State charged Hermes by information with the offense of sexual intercourse without consent. Hermes pled not guilty.

Hermes subsequently moved to suppress the statement taken by Martin on the grounds that the statement was involuntary. The District Court held a hearing on the motion at which Martin, Hermes and Hermes’ father testified. Thereafter, the court entered findings with regard to the circumstances under which Martin obtained Hermes’ statement and ultimately found that the statement was involuntary. On that basis, the District Court entered its order and memorandum suppressing the statement from use at trial for all purposes. The State appeals.

1. Did the District Court err in suppressing Hermes’ statement after finding that the statement was involuntary?

Psychological pressure exerted upon a defendant to procure a confession renders the confession involuntary. State v. Allies (1979), 186 Mont. 99, 112, 606 P.2d 1043, 1050 (citations omitted). An involuntary confession violates a criminal defendant’s Fifth and Fourteenth Amendment privileges against self-incrimination and may not be used as evidence at trial without violating the defendant’s Fourteenth Amendment right to due process of law. State v. Lenon (1977), 174 Mont. 264, 271, 570 P.2d 901, 906 (citations omitted). Moreover, § 46-13-301(1), MCA, specifically authorizes a motion to suppress any confession or admission given by a defendant on the basis that the statement was involuntary. The State has the burden of proving by a preponderance of the evidence that the confession or admission was voluntary. Section 46-13-301(2), MCA.

By placing the “preponderance of evidence” burden of proof on the State, § 46-13-301, MCA, clarifies that the question of voluntariness is primarily one of fact. We consistently have emphasized that point by stating, for example, that “[a]n analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances.” State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citation omitted).

The District Court listened to the taped interview at issue and held a hearing on the admissibility of Hermes’ statement. The court found that, after Hermes agreed to talk with Martin, Martin’s tone of voice and questions changed as he “[went] on the offensive.” The court noted that the interview took place in a “small enclosure” with a third person sitting behind Hermes and found that this was a coercive setting. The court also noted that Martin did not advise Hermes of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

The District Court set forth some of the questions Martin asked Hermes. Each such question was phrased in a way that assumed Martin sexually assaulted S.S. The court noted that Martin never asked Hermes what happened and found that Martin asked Hermes exclusively accusatory questions. The District Court found that Martin’s accusatory questions compounded the coercion already present in the interview setting.

In an order and supporting memorandum dated February 10, 1995, the District Court made findings regarding the coercive nature of Martin’s interrogation of Hermes and ultimately found that the State did not prove by a preponderance of the evidence that Hermes’ confession was voluntary. Additionally, the court found that Martin used psychological pressure to induce Hermes’ confession and, as a result, that Hermes’ confession was involuntary.

We review a district court’s findings of fact regarding suppression hearing evidence to determine whether they are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.2d 263, 264; State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286. A finding of fact is clearly erroneous if it is not supported by substantial evidence or, if it is so supported, the trial court misapprehended the effect of the evidence or if this Court is left with a definite and firm conviction that a mistake has been committed. State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110 (citation omitted).

In this regard, we note that our recent decisions in State v. Stubbs (1995), 270 Mont. 364, 892 P.2d 547, and in State v. Rushton (1994), 264 Mont. 248, 870 P.2d 1355, inadvertently reverted to a “substantial credible evidence” standard of review for a court’s findings relating to suppression evidence. We take this opportunity to reaffirm our holding in Cope, with regard to the standard of review, that “we will not overturn a District Court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous.” Cope, 819 P.2d at 1286.

Voluntariness depends on the facts of each case, with no fact being dispositive. Allies, 606 P.2d at 1050 (citation omitted). In determining whether a confession is voluntary under the totality of circumstances test, courts consider the characteristics of the defendant and what transpired during the interview. Schneckloth v. Bustamonte (1973), 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854, 862. We have reviewed district court findings of fact under the totality of circumstances test many times and, in doing so, we have determined that the following factors, among others, are relevant: the defendant’s age and level of education (State v. Davison (1980), 188 Mont. 432, 442, 614 P.2d 489, 495); the interrogation technique and whether the defendant was advised of his Miranda rights (Allies, 606 P.2d at 1050); the defendant’s prior experience with the criminal justice system and police interrogation (State v. Craig (1993), 262 Mont. 240, 242, 864 P.2d 1240, 1242); and the defendant’s background and experience (Matter of J.W.K. (1986), 223 Mont. 1, 6, 724 P.2d 164, 167).

The record before us is replete with evidence supporting the District Court’s findings regarding the circumstances surrounding Hermes’ confession and its ultimate finding that Hermes’ confession was involuntary. At the time of the interview, Hermes resided in an isolated area of Lincoln County in a house without electricity. He received formal education through approximately the seventh grade level. He testified that, at the time Martin took his statement, he was unaware of his Miranda rights. Additionally, Hermes had neither been charged with a crime nor interrogated by the police prior to this occasion.

Upon arriving at Hermes’ residence, Martin informed Hermes that he would like to ask him some questions, but failed to disclose the subject he sought to discuss with Hermes. Martin interviewed Hermes in the club cab of Wedel’s pickup truck with Martin in the driver’s seat, Hermes in the passenger seat, and Wedel in the back seat. The pickup truck’s doors were closed during the interview. Martin admitted that his purpose in talking with Hermes was to obtain a confession from him. However, he did not advise Hermes of his Miranda rights.

Martin’s entire interrogation of Hermes was premised on Martin’s belief that the alleged sexual assault of S.S. had occurred and that Hermes had committed it; Martin structured his questions in such a way that Hermes could not effectively deny that the incident occurred. Although this is only one factor in the totality of circumstances, we have condemned the guilt assumption technique of interrogation as coercive. Allies, 606 P.2d at 1050.

Additionally, the District Court noted that, during the interview, Martin “barked” questions at Hermes three times. Hermes discontinued the interview when he was wanted on the telephone; he testified that he felt this was the “first chance” he had to get out of the pickup truck.

We conclude that the District Court’s findings of fact regarding Hermes’ confession are supported by substantial evidence and that the court did not misapprehend the effect of the evidence; nor, after reviewing the record, are we left with a definite and firm conviction that a mistake has been committed. We hold, therefore, that the District Court’s finding that Hermes’ confession was involuntary is not clearly erroneous and that the court did not err in suppressing Hermes’ statement.

2. Did the District Court err in determining that the State could not use Hermes’ statement for impeachment purposes?

The District Court ordered that Hermes’ statement was “suppressed from use at trial in this matter for all purposes.” The State argues that it is entitled to use Hermes’ statement for impeachment purposes in the event Hermes testifies at trial and, as a result, that the District Court erred as matter of law. We review a district court’s conclusions of law to determine whether they are correct. Stubbs, 892 P.2d at 550 (citations omitted).

Relying on Miranda and Mincey v. Arizona (1978), 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290, the State argues that a defendant’s prior incriminating statements properly may be used for impeachment, despite the lack of Miranda warnings, if the defendant testifies in a manner inconsistent with his earlier statements. The State concedes, however, that the question of whether the statement is admissible for impeachment purposes turns on the question of voluntariness.

We concluded above that the District Court’s findings of fact regarding the involuntary nature of Hermes’ statement were not clearly erroneous. Thus, in addressing the first issue, we essentially determined this issue as well. Even under the authorities relied on by the State, “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law ....” See, e.g., Mincey, 437 U.S. at 398, 98 S.Ct. at 2416. We hold, therefore, that the District Court did not err in concluding that the State could not use Hermes’ statement for impeachment purposes.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NORMAN LEE STEVENS, Defendant and Appellant.
    No. 95-266.
    Submitted on Briefs September 28, 1995.
    Decided October 24, 1995.
    52 St.Rep. 1078.
    904 P.2d 590.
    273 Mont. 452.

      For Appellant: Edmund R. Sheehy, Jr., Cannon and Sheehy, Helena.

      For Respondent: Honorable Joseph Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Betty Wing, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Fourth Judicial District Court denied Norman Lee Stevens’s petition for post-conviction relief. Stevens appeals. We affirm.

The issue is whether the District Court erred in denying the petition for post-conviction relief because the judgment challenged in the petition was illegal under Title 46 Chapter 18, MCA.

Stevens pled guilty in 1992 to two counts of sexual assault upon a fourteen-year-old girl. On each count, he was sentenced to twenty years’ imprisonment with ten years suspended, the sentences to run concurrently. He appealed. This Court vacated and remanded for resentencing because the sentencing order failed to address certain statutory requirements. State v. Stevens (1993), 259 Mont. 114, 854 P.2d 336.

Stevens was resentenced to twenty years on each count with ten years suspended, to run concurrently. He appealed this sentence to the Sentence Review Division. The Sentence Review Division affirmed, but added a provision that “when the defendant is ready for parole, he can, at the discretion of the parole board, complete his sex offender treatment with Dr. Scolatti on the outside, as part of his parole plan.”

Stevens then filed a petition for post-conviction relief with the District Court, arguing that his sentence was illegal. The court denied the petition, and Stevens appeals.

Did the District Court err in denying the petition for post-conviction relief because the judgment challenged in the petition was illegal under Title 46 Chapter 18, MCA?

In reviewing a district court’s denial of a petition for post-conviction relief, this Court determines whether substantial evidence supports the findings and conclusions of the court. State v. Baker (1995), [273 Mont. 273], 901 P.2d 54, 58. This Court will not overturn legal conclusions if the lower court’s interpretation of the law is correct. Baker, 901 P.2d at 58.

In analyzing the basis for this particular petition for post-conviction relief, we recognize that trial courts possess broad discretion to determine the appropriate punishment for a particular crime. State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. As long as a sentence is within legal limits and the judgment indicates that the court has considered the requisite factors, the sentence is valid. State v. Losson (1993), 262 Mont. 342, 352, 865 P.2d 255, 261.

Stevens first points out that sexual assault upon a person under the age of sixteen did not carry a mandatory minimum sentence until October 1, 1991. See § 45-5-502(3), MCA; Sec. 1, Ch. 564, L. 1991. The law in effect at the time of the crime controls as to the possible sentence. State v. Azure (1978), 179 Mont. 281, 282, 587 P.2d 1297, 1298. Stevens’s crimes were committed in July and August of 1991. The District Court stated:

[T]he crime committed was two counts of Felony Sexual Assault on a female less than 16 years of age. These crimes are punishable by a minimum mandatory sentence of between two and ten years for each count.

The State concedes that the above statement by the District Court is incorrect. However, the court’s judgment was clearly not based wholly upon this statement. The court did not impose the mandatory minimum sentence.

In considering the petition for post-conviction relief, the District Court pointed out that even before the 1991 Montana legislature established a minimum sentence for sexual assault against a victim under the age of sixteen, by an offender three or more years older, the penalty prescribed for such an assault was “imprison[ment] ... not to exceed 20 years, and... [a] fine... not more than $50,000,” as compared with the penalty for sexual assault of an adult of a fine “not to exceed $500 or imprison [ment] in the county jail not to exceed 6 months, or both.” Section 45-5-502(2) and (3), MCA (1989). The District Court sentenced Stevens to twenty years with ten years suspended, on each count, as permitted by statute and therefore did not use the 1991 amendments to § 45-5-502, MCA.

In ruling on the petition for post-conviction relief, the court concluded, “Thus, the State has had the correctional policy reflected in the Judgment at the time of sentencing.” We agree that, prior to 1991, the correctional policy of the State of Montana provided for significantly greater penalties for sexual assault when the victim was under the age of sixteen.

Stevens also contends the court erred in analyzing § 46-18-225, MCA (1991), and sentencing him, a nonviolent felony offender, to a term of imprisonment. Both § 46-18-225, MCA (1991), and § 46-18-101(4), MCA (1991), discussed below, were part of Ch. 794, L. 1991, effective July 1, 1991. Section 46-18-225, MCA (1991), provides:

Criteria for sentencing nonviolent felony offenders. Prior to sentencing a nonviolent felony offender to a term of imprisonment in the state prison or a women’s correctional facility, the court shall take into account whether:
(1) the interests of justice and the needs of public safety truly require the level of security provided by imprisonment of the offender in the state prison or a women’s correctional facility;
(2) the needs of the offender can be better served in the community or in a facility or program other than the state prison or a women’s correctional facility;
(3) there are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;
(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make restitution to the victim of his criminal conduct;
(6) the offender has no prior history of conviction for a criminal act or has led a law-abiding life for a substantial period of time before the commission of the present crime;
(7) the offender’s criminal conduct was the result of circumstances that are unlikely to recur;
(8) the character and attitude of the offender indicate that the offender is likely to commit another crime;
(9) the offender is likely to respond quickly to correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an excessive hardship on the offender or his family.

The State points out that this is a list of factors to be “take[n] into account.” None of the factors bars imprisonment.

An alleged error in the sentencing order was the court’s indication that “the role of the victim injustice is something that I am committed to and I will heed the words of the victims in cases that are brought before me.” Although § 46-18-225, MCA(1991), does not list the victim’s wishes as a factor to be considered in sentencing, neither does it prohibit consideration of the victim’s wishes by the sentencing court.

Stevens also criticizes the court’s comment that “because of circumstances, your crime will likely reoccur.” He argues that this statement was an improper generic comment on recidivism among sex offenders. No error has been shown in the statement.

Stevens maintains the court did not consider alternatives to imprisonment as it was required to do under § 46-18-101(4), MCA (1991):

It is also the policy of the state that alternatives to imprisonment, such as community corrections, should be used whenever appropriate for nonviolent felony offenders in order to provide them opportunities to gain work experience, to learn life skills, to obtain education and training, or to participate in other activities that will reduce recidivism and enable offenders to become productive members of society.

Stevens asserts that this statute creates a presumption in favor of alternatives to imprisonment for nonviolent offenders. He argues that the following language in the court’s sentencing order is contrary to the above policy:

The correctional policies of this State have imposed a special emphasis on punishment of sexual offenders whose victims are under the age of 16 years. There is also the policy toward rehabilitation but I have noted in the statute this specific emphasis placed on crimes of this nature.

The court’s task under § 46-18-101(4), MCA(1991), was to analyze whether an alternative to prison was appropriate in this case. The court specifically stated it had considered allowing Stevens to continue under Dr. Scolatti’s community treatment program. Further, as we noted above, the statutory penalty for sexual assault of a person under sixteen years of age has historically been higher than for sexual assault of an older victim. We conclude that the above statement in the sentencing order was not error.

The District Court’s explanation of the sentence it imposed was over three single-spaced pages long. The court’s exhaustive discussion of its.reasoning included examination of each of the ten factors listed under § 46-18-225, MCA (1991).

The court noted that the crime of which Stevens was convicted is considered one of the most serious and destructive in society. The victim’s life was seriously impacted on a long-term basis, and the victim has continued to suffer significant long-term problems. The offense was committed to gratify Stevens’s desire for pleasure, excitement, and relief from stress. The crimes were followed by additional criminal behavior, the theft of money from customers who employed Stevens to clean their establishments.

The court stated its belief that complete rehabilitation could only be obtained in this matter through some punishment, and that punishment is necessary both to deter future behavior on Stevens’s part and to send a message to others who may be similarly disposed that this type of conduct will not be tolerated. The court noted that Stevens’s crimes involved calculation and victimization of an unsuspecting individual who trusted him, and that there was no justification, excuse, or strong provocation. Finally,

while imprisonment would create a hardship on you and your family, it does not outweigh the correctional policy in favor of punishment and the deterrent such punishment would provide. Nor does it excuse the crimes and the damages that have been inflicted upon the individual in this case. I believe that criminal activity which could reoccur would be of greater harm than the harm imposed by imprisonment.

The District Court found that none of the grounds raised by Stevens provided an adequate basis for granting the petition for post-conviction relief. After reviewing Stevens’s claims, we conclude that the District Court did not err in denying the petition. We therefore affirm the judgment of the District Court.

JUSTICES NELSON, TRIEWEILER, GRAY and ERDMANN concur.