No. 13684
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ROBERT R. ZIMMERMAN,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable Jack L. Green, Judge presiding.
Counsel of Record:
For Appellant:
Edward A. Cumrnings argued, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Robert Deschamps 111, argued, County Attorney,
Missoula, Montana
Submitted: September 14, 1977
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Decided:
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Filed:
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This is an appeal by defendant from his conviction of 22
counts of embezzlement following a jury trial in the District Court,
Missoula County.
Defendant, a former psychology professor at the University
of Montana, was in charge of a research project involving the
effects of malnutrition in monkeys. This project was funded by
various research grants from the federal government (through the
Department of Health, Education and Welfare) and from private sources
(through Nutrition Foundation, Inc., a nongovernmental entity).
These grant funds were physically commingled with other
moneys of the University of Montana in its "local pool of funds"
on deposit in several banks in the Missoula area. Separate book-
keeping entries were kept on each grant by the University so that
a purchase made under a certain grant would be charged against
the funds available in that particular grant on the University's
books, but payment would be made to the creditor by University
check drawn on its "local pool of funds". Any money remaining in
a particular grant account on the University's books at the ter-
mination of that particular project would be returned to the grantor.
Defendant allegedly embezzled funds from the Department
of Health, Education and Welfare and from the Nutrition Foundation
by means of false claims charging against their respective grant
accounts various purchases intended for defendant's personal use.
For a prior history of this case and a pretrial opinion of
this Court, see State ex rel. Zirnmerman v. Dist. Court (1975), 168
Mont.289, 541 P . 2 d 1215.
On November 30, 1973, an indictment was filed in United
States District Court accusing defendant of 16 counts of using
documents containing a false statement in connection with charges
against HEW research grants. The alleged crimes were in violation
of 18 U.S.C., Sec. 1001 and covered the period between September
18, 1970 and October 20, 1972.
Thereafter on December 13, 1972 defendant was charged with
36 counts of embezzlement by Information filed in the District Court
of Missoula County. These alleged crimes covered the period from
September 16, 1969 to December 29, 1972 and charged violation of
state law, former section 94-1501, R.C.M. 1947. In substance,
these charges accused defendant of appropriating public moneys
to his own use by means of claims against Nutrition Fund grants
covering items intended for his personal use.
Subsequently defendant plead guilty to one of the federal
counts and the remaining counts were dismissed. The federal court
sentenced defendant to 3 years imprisonment, suspending 2 years and
305 days thereof on the condition that defendant be imprisoned for
60 days and contribute 40 hours per month to public service.
Thereafter defendant filed a motion in state court seeking
dismissal of the state charges on the grounds, among other things,
that the state prosecution was barred by section 95-1711. Following
denial by the District Court,Missoula County, defendant sought
review of the District Court's ruling by writ of supervisory
control. We accepted jurisdiction and denied petitioner's appli-
cation on the merits. State ex rel. Zimmerman v. District Court, supra.
Defendant was then tried by jury in state court and con-
victed of 22 counts of embezzlement. He was sentenced to 10 years
imprisonment on each count to be served concurrently with all but
approximately 9 months suspended. Defendant appeals from this
condition.
Two issues are presented for review on appeal:
(1) Was the admission of testimony that defendant appeared
intoxicated on amphetamines reversible error?
(2) Did the federal conviction bar the state prosecution?
As part of its case-in-chief, the state called Dr. James
A. Walsh, chairman of the psychology department of the University.
During his direct examination by the county attorney, Dr. Walsh
testified that during September, October and early November, 1972,
he observed defendant in the psychology building at the University
" * * * behaving in such a way that I believe that he was intoxicated
on amphetamines". This testimony was admitted over the strenuous and
protracted objections of defense counsel.
On appeal the state contends this evidence was properly
admitted as part of the state's proof that public moneys were
appropriated by defendant to his own use and not for his research
projects, an element of the crimes charged. Defendant contends the
admission of this testimony is reversible error because it is simply
evidence of a past, remote and unrelated issue without probative
value and highly prejudicial.
This issue concerns counts I11 through XI of the Infor-
mation. These counts in substance charge defendant with unlaw-
fully appropriating public money to his own use by causing pay-
ment to be made on various University claims covering items intended
for his own use. The nine counts cover drug purchases (amphetamines
and tranquilizers) totalling $407 between March 25, 1970 and December
15, 1971.
We note that the evidence in question is somewhat remote.
The behavior of defendant which Dr. Walsh witnessed occurred in the
fall, 1972. The state's proof indicated the last purchase of ampheta-
mines was either March 23, 1971 (state's exhibit 10) or April 7, 1971
(state's exhibit 37). The probative value of an observation 18 months
after the last purchase of amphetamines in proving that the items were
purchased for defendant's own use is open to question.
We further note that the evidence, at best, is simply
cumulative. The state called Dr. Charles R. Geist, a research
assistant to defendant, who testified:
"Q. (By county attorney) Let's examine the
Nutrition Foundation grant particularly. Pre-
vious to 1973, were you using amphetamines in
the Nutrition Foundation research? A. No."
This is direct and uncontradicted proof that the amphetamines
covered by claims submitted by defendant were not purchased
for use in the research project. It also supports the conclusion
that they were intended for defendant's own use. The evidence
further indicated that defendant reimbursed the University for
these and other items to the tune of $11,762.92. Without detail-
ing each other specific instance of proof, we can fairly state
that the evidence at the trial permits the single conclusion that
the amphetamines were intended for defendant3 own use without
resort to the challenged testimony of Dr. Clark.
The prejudicial effect of the challenged testimony re-
quires little comment. A University professor allegedly intox-
icated on amphetamines in a college building on the campus of
a state university obviously raises deep emotions and prejudice
against him by reason of an alleged collateral crime with which
he was not charged. In such a case the probative value, if any,
of the challenged testimony to prove the crime charged must be
weighed against its unfair prejudice in determining the admissi-
bility of the challenged evidence.
Montana has applied this approach in a number of cases.
In State v. Rollins (1967), 149 Mont. 481, 428 P.2d 462, we said:
" * * * In passing on the admissibility of such
evidence, (gruesome color photographs of the victim's
wounds), the court should weigh its probative value
against its prejudicial effect."
Other Montana cases applying this rule are State v.Bis-
chert (1957), 131 Mont. 608, 308 P.2d 973; State v. Frates (1972),
160 Mont. 431, 503 P.2d 47; State v. Skinner (1973), 163 Mont. 58,
515 P.2d 81.
The new Montana Rules of Evidence, although not applicable
to this case tried before their effective date, contains the same
rule :
"Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or
needless presentation of cumulative evidence."
Rule 403, M.R.Ev.
The Commission Comment to this rule indicates no intention to
change existing Montana law.
The probative value, if any, of the challenged testimony
is clearly outweighed by its unfair prejudice. The challenged
testimony at best is remote, cumulative, and tends to confuse the
issues the jury is to decide by proof of an alleged collateral
crime with which defendant was not charged. The challenged testi-
mony of Dr. Clark should have been excluded and failure to do so
was an abuse of discretion constituting reversible error.
Since this conviction must be reversed and the case
remanded, discussion of the second issue is in order.
In 1975 this Court in a 3-2 decision held on a writ of
supervisory control that the prior federal conviction did not
bar state prosecution in this case. State ex rel. Zimmerman v.
Dist. Ct., supra. The basis of the majority decision was that
7
the federal and state prosecutions were not based on the "same
transaction" but were separate "offenses" and that the requisite
concurrent jurisdiction of state and federal courts to bar the
subsequent state prosecution under section 95-1711, R.C.M. 1947,
was lacking.
All members of this Court are convinced that this former
decision is fundamentally wrong and constitutes manifest error.
The state argues in this appeal that the former decision
is res judicata and further consideration is foreclosed. Defendant
contends that the evidence at the trial differed from the representa-
tions made to this Court in the previous decision and goes on to argue
the merits of this issue as if it were an original matter.
Without splitting definitional hairs to determine whether
res judicata or law of the case principles are involved, we will
refer to the principle as law of the case. Irrespective of its
label, the gist of the principle espoused by the state is that
the issue has been once finally decided and cannot again be liti-
gated.
Prior Montana cases disclose the general rule that where
a decision has been rendered by the Supreme Court on a particular
issue between the same parties in the same case, whether that
decision is right or wrong, such decision is binding on the parties
and the courts and cannot be relitigated in a subsequent appeal.
Carlson v. Northern Pac. Ry. Co. (1929), 86 Mont. 78, 281 P. 913;
Libin v. Huffine (1950), 124 Mont. 361, 224 P.2d 144; Little v. Little
(1953), 127 Mont. 152, 259 ~ . 2 djf:
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j G. N. Ry. Co. v. State Bd. of Eq.
(1952), 126 Mont. 187, 246 id 20. This general rule extends back
to territorial days. Creighton v. Hershfield (1874), 2 Mont. 169;
Barkley v. Tieleke, (1876) 2 Mont. 433. Also see 1 A.L.R. 1033 and
8 A.L.R. 1267 for varying decisions in other jurisdictions on whether
an erroneous decision is the law of the case on a subsequent appeal.
In any event an exception to this general rule exists
where the case must be remanded to the District Court for further
proceedings because of reversal on an unrelated issue. In such case
this Court may correct a manifest error in its former opinion
and announce a different ruling to be applied prospectively to
future proceedings in the case. This exception to the general
rule is recognized in Montana at least since 1955 when we held
that the law of the case announced in the first appeal, and which
governed the second trial, does not prevent the appellate court
from correcting a manifest error in its former opinion to apply
to future proceedings where doing so promised justice without
substantial injury to anyone. State v. Hale (1955), 129 Mont.
449, 291 P.2d 229. Such exceptions are more readily applied where,
as here, the prior decision is by a divided court. Perkins v.
Kramer (1948), 121 Mont. 595, 198 P.2d 475.
For criticism of our former majority opinion, see Survey
of Montana Law, Part I, Criminal Procedure, Vol. 38, No. 1, Montana
Law Review, wherein Professor Elison uses this language:
"In State ex rel. Zimrnerman v. District Court,
the court allowed a second prosecution in
state court after the defendant had been tried,
convicted, and sentenced on virtually the same
facts and for the same criminal episode in fed-
eral court. The applicable statute provides:
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' 'When conduct constitutes an offense within the
concurrent jurisdiction of this state and of the
United States or another state or of two courts
of separate and/or concurrent jurisdiction in
this state, a prosecution in any such other
jurisdiction is a bar to a subsequent prosecution
in this state under the following circumstances:
"'(a) The first prosecution resulted in an ac-
quittal or in a conviction as defined in sub-
section (3) and the subsequent prosecution is
based on an offense arising out of the same
transaction. '
"It is difficult to imagine a case fitting more
completely within both the language and purpose of
the statute. As noted by the dissent, there was
a single research project, a single fund, a
single purpose or plan, and a series of the same
acts. Any factual differences were at most
technical, legal distinctions. Nonetheless, the
majority restated the position taken in an earlier
case: 'A single act may be an offense against two
statutes; and if each statute requires proof of
an additional fact which the other does not, an
acquittal or conviction under either statute does
not exempt the defendant from prosecution and
punishment under the other.'
"This statement is not applicable, however, to
Montana's double jeopardy statute. It misconstrues
the express statutory language. It renders the
phrase 'same transaction' meaningless. First, the
court struggled to find that the offenses involved
were different transactions, by deciding that the
money taken belonged to two different funds --
Nutrition Fund, Inc. and HEW grant money --
even though the money was co-mingled. The court
found there was a different offense because proof
of a different fact was required. Then, it moved
gracelessly from 'different offense' to 'different
transaction'. This narrow, technical misapplication
of Plontana's double jeopardy statute is unfortunate,
and in the long run is injurious to the criminal
justice system. Further, its effect on this
defendant is distressing. The defendant was
again tried, again convicted, and given a severe
sentence in state court for the crime. Society's
interest had been vindicated by the earlier trial
and the defendant was on a course which would
assure early reentry into a productive, socially
valuable life. This course was interrupted by
the lengthy, expensive state court process to the
value and credit of no one."
~dditionally,defendant's conduct constituted an offense
within the concurrent jurisdiction of the United States and Montana
raising the bar against subsequent state prosecution under section
95-1711. This concurrent jurisdiction does not arise from the
unproven claim that the research projects were carried on in
a building allegedly located on a federal reservation as indi-
cated in our former majority opinion.
Concurrent jurisdiction arises because defendant's conduct
constituted embezzlement under both federal law (18 U.S.C. Sec. 641)
and state law (section 94-1501, R.C.M. 1947). The fact that
federal authorities chose to prosecute and convict him for making
false statements to secure the funds (18 U.S.C., Sec. 1001) rather
than for appropriating the funds to his own use (embezzlement)
does not destroy the required concurrent jurisdiction. The
measure of concurrent jurisdiction is whether defendant's conduct
subjected him to prosecution in both jurisdictions.
The state prosecution is based on offenses arising out
of the same transaction as the federal prosecution and therefore
barred under section 95-1711 (4) (a), R.C.M. 1947. The "same trans-
action" as the term is used therein means conduct consisting of
"a series of acts * * * motivated by a common purpose or plan and
which result in the repeated commission of the same offense or
affect the same person * * * or the property thereof." Section
95-1711 (1) (a) (ii), R.C.M. 1947. The prior federal conviction is
based on the same transaction as the state prosecution under this
definition. All 36 charges in state court are based on a series
of acts by the defendant (submitting false claims) motivated by a
common purpose or plan (securing research funds for his personal
use) resulting in the repeated commission of the same offense
(embezzlement). His conduct also affected the same person or
entity (the University of ~ontana)and its property (its local
pool of funds).
There is but one research project, one fund, a single pur-
pose or plan, a series of the same acts, and the repeated commission
of the same offense against the same institution. The initial source
of the grants, the internal accounting and bookkeeping procedures
of the University, and technical legal distinctions between the
charges filed in the two courts cannot alter these basic facts.
Section 95-1711 fits this case like a glove and bars the subsequent
state prosecution after the initial federal conviction.
This rule herein announced shall be applied prospectively
to further proceedings in this case and not retrospectively to past
proceedings under authority of State v. Hale, supra.
Defendant's conviction is vacated and the cause remanded
to the District Court for further proceedings in conformity with
this opinion.
Conc-3r:
m i e f Justice
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