No. 82-406
IN THE SUPREME COURT OF THE STATE OF MONTANA
1384
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
LESTER AZURE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Great Falls, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
J. Fred Bourdeau, County Attorney, Great Falls, Montana
Submitted on Briefs: December 22, 1983
Decided: February 23, 1984
Filed: " k ~ ' ')84
,
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant appeals from his conviction of forgery
following a jury trial in the District Court of Cascade
County.
On February 3, 1981, defendant Lester Azure delivered a
check to proprietor of Parkdale Grocery for which he received
cash in the amount of the check $197.00. The check purported
to be drawn on the account of Elaine LaPier, signed by her
and payable to Azure. Based on this transaction, Azure was
charged by information filed on February 27, 1982, with the
offense of forgery, a felony, in violation of section
45-6-325(1)(b) MCA. At Azure's arraignment on March 24, 1982
he pleaded "Not Guilty" to the charge and was later convicted
by jury on June 4, 1982.
Pursuant to a District Court order, Azure submitted
hand.writing samples to the Cascade County Sheriff's office.
One week prior to the June 1st jury trial the handwriting
expert, Deputy Arne Sand, informed the deputy county attorney
tha-t the handwriting on the check with which Azure was
charged was the defendant's. Shortly thereafter, the deputy
county attorney interviewed the victim, Elaine LaPier, who
provided him copies of two checks which had been forged on
her account. The second check was dated January 30, 1981
made payable to Lester Azure for $125.00. It was endorsed by
Lester Azure and cashed by Ottis Power of the Midway Rar.
On the evening of the trial, May 31, 1982, the deputy
county attorney interviewed the handwriting specialist, Sand,
who informed him that the endorsement on the reverse of the
February 3rd check, charged against the defendant, was
written by the defendant but that the handwriting on the face
of the check was not. Deputy Sand determined that the
earlier check, dated January 30, 1981, was both written and
signed by the defendant. At 10:45 p.m. that same night,
deputy county attorney telephoned the defendant's counsel to
inform him of the State's intention to introduce the January
30, 1981 check pursuant to Montana Rules of Evidence 404(b)
as evidence of a prior criminal act for the purpose of
establishing knowledge, purpose, identity or absence of
mistake or accident. The following morning, prior to the
case being called for trial, notice as judicially mandated in
State - -
v. Just, ( 1 9 7 9 ) , 184 Mont. 262, 602 P.2d 957, was
served on the defendant's counsel.
When the State offered the earlier dated check to be
introduced as evidence of other crimes defendant's counsel
objected on the grounds of inadequate notice. He alleged
that the surprise introduction of this evidence the night
before the trial imposed an unfair burden on the defendant to
properly investigate the proposed evidence and prepare
effective cross-examination. In response to this objection
the trial court granted defendant's counsel a two and a half
day continuance. Defense counsel renewed the same objection
when the court reconvened. The court overruled the
objection.
A single issue is presented upon appeal:
1. Did the trial court err in allowing the admission
into evidence of another wrongful act where notice of the
intention to introduce such evidence was served upon
defendant the morning of the trial and a two and one half day
continuance was thereafter granted?
In State - - this Court adopted a four-prong test
v. Just
essential for the introduction of evidence of prior crimes or
acts. The defendant alleges that the State's evidence
violates only the fourth required judicial standard,
maintaining that the inadequate notice resulted in unfair
prejudice against the defendant which substantially
outweighed its probative value.
During a hearing before the court after the two and a
half day continuance the defendant's counsel and the court
discussed the subject evidence. Although the omnibus hearing
resulted in an order requiring a 10 day notice of intent to
use other crimes evidence the defendant could not have
benefited from more time. The court specifically inquired if
the two and a half day continuance had afforded defense
counsel the opportunity to meet the proposed additional
evidence and avoid prejudice to the defendant. Defendant
took the position that prejudice would result because
defendant had not received ten days notice.
However the following dialogue ensued:
"All right. I think that although this is in.
violation of the omnibus hearing order that ten
days notice was supposed to be given to the
defense, and it was not given, and there was an
objection made to the admission of the evidence,
but then the court did grant a two day continuance
so that the defense would have an opportunity to
investigate the evidence, and to meet it, and with
the representation of counsel that he has had an
opportunity in the two days to make his
investigation of the evidence, and that there is no
need for any further time, is that correct, Mr.
Nagel, as far as any further investigation is
concerned?
"MR. NAGEL: Yes, your honor."
Defense counsel waived his right to ad.ditiona1 time for
investigation and effectively rendered void his objection of
unfair prejudice due to surprise.
The standard of review of this appellate court is:
" ... if the fixing of the degree of the offense
as fixed finds support in the evidence and if the
punishment is within the maximum limits fixed by
law, then we cannot substitute our judgment for
that of the trial judge. We are at liberty to
interfere only in the event that there has been a
clear abuse of discretion or a failure to follow
. v.
the l a v ~l1 State - Brooks (1967), 150 Mont. 399,
436 P.2d 91, 98.
The record evidences no abuse of discretion by the
District Court. Affirmed.
We concur:
Chief Justice