No. 83-329
IN THE SUPREME COURT OF THE STATE OF MOWTAXA
1984
STATE OF MONTAPJA,
Plaintiff and Respondent,
DOIJALD F. LLOYD,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Billings, Montana
For Respondent:
Mike Greely , Attorney General, ISelena, Montana
Harold F. Hanser, County Attorney, Billings,
Montana
Submitted on Briefs: December 15, 1983
Decided: February 16, 1984
Filed: ,- t.H !' !38+
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Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the
Court.
Defendant Donald Lloyd, appeals his conviction and
sentence for felonious issuing of bad checks from the
Thirteenth Judicial District Court, Yellowstone County. We
affirm.
On December 18, 1981, defendant purchased three cars
from Billings Auto Auction, and signed three checks drawn on
defendant's Spokane bank in payment. The checks were made
out in the amounts of $3,200, $1,765 and $1,365. The
defendant testified that he paid for the three cars with
cash, but left four signed blank checks with the company in
payment for other bills. In contrast, the president of
Billings Auto Auction, Dinkel, testified that his secretary
filled out three checks and defendant signed the checks in
Dinkel's presence. All three checks were returned unpaid.
Defendant testified that Dinkel knew at the time of signing
that the checks were not to be sent to deposit until the next
week.
On January 12, 1982, Dinkel notified defendant by
certified mail that the checks were returned by the bank.
Defendant signed the return receipt, but did not respond to
the letter nor pay the checks. In February, defendant
contacted his attorney in Spokane for advice, and was advised
not to pay the checks because of a defect in one of the cars.
Defendant's attorney believed a set off existed under the
Uniform Commercial Code.
An information was filed March 23, 1982, charging
defendant with the felony of issuing a bad check. Jury trial
was held on December 14, 1982, and defendant was found
guilty.
During the trial, counsel for the State objected to
questions asked of defendant's Spokane attorney. The
questions were designed to demonstrate that defendant did not
pay the checks because one of the cars he bought was
defective, not because of a criminal mental state. The
following transpired in the presence of the jury:
"MR. HOEFER: Your Honor, again I would object to
this line of questioning. The conclusions are
based on what may amount to self serving interest
of the Defendant, and consequently he is acting as
a trier of fact here which is the jury's province.
"MR. BECK: May I respond, your Honor?
"THE COURT: I don't understand your objection.
You've got to -- can you state what it is again?
"MR. HOEFER: Your Honor, the basic objection is
that his contact with his attorney and the
recommendations of his attorney are not pertinent
to the case. They are not part of the res gestae,
and consequently they are --
"THE COURT: Well, they are hearsay, but --
"THE COURT: There is a presumption created which
the statute and -- but I don't know why you
couldn't rebutt [sic] it, but --
"MR. BECK: I would submit, your Honor, that it
would be rebutted by what he did, and what he did
is relevant to that issue, and that's the sole
purpose for what this evidence is submitted.
"THE COURT: Well, I'm going to overrule the
objection to that extent; however, obviously it is
self serving. There is no question about it.
"MR. BECK: It's being offered, your Honor, for
that limited purpose, that is, what did he do.
"THE COURT: Well, anyhow, go ahead and ask your
question.
"MR. BECK: Thank you, your Honor."
Defendant contends the statement of the court that the
testimony is self-serving was prejudicial comment upon the
evidence. The defendant also assigned error to the court
asking the witness, "do you practice criminal law?"
Five letters of recommendation were submitted to the
trial court and the adult probation officer in charge of the
presentence investigation. On February 2, 1983, defendant
was sentenced to five years in prison.
Two issues are raised on appeal. First, whether the
trial court's statements and questions were comments on the
evidence amounting to reversible error. Second, whether the
trial court abused its discretion in sentencing the
defendant.
Defendant argues that statements such as those of the
trial court are proscribed by Rule 614 (b) M.R.Evid. We need
not consider the error as defendant did not object at trial.
State v. Bier (1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119;
State v. Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631,
632-33.
Furthermore, we refuse to invoke the plain error
doctrine. Any prejudice generated by the statements of the
court would be too slight to be reversible error. Indeed,
under these circumstances, any technical error would be
rendered harmless by the court's instruction to disregard
comments of the court. State v. Inich (1918), 55 Mont. 1,
173 P.230.
It is clear that the statement of the court regarding
the self-serving nature of testimony was part of the court's
ruling on the evidentiary objection. It was not directed at
the jury. In ruling on such objections the trial judge may
be unable to avoid expressing some opinion regarding the
value or weight of evidence. State v. Dixson (1927), 80
Mont. 181, 212, 260 P.138, 149.
The question regarding the lawyer's area of practice is
not prejudicial. In fact the question would have
appropriately been asked by counsel.
Defendant next contends that the sentencing judge failed
to evaluate all available sentencing information before
sentencing. Specifically, defendant claims the court gave no
weight to the unrebutted statements of several Spokane
residents.
We will not review a sentence on appeal for mere
inequity or disparity. Such a review is to be conducted by
the Sentence Review Division. State ex rel. Greely v.
District Court (1979), 180 Mont. 317, 327, 390 P.2d 1104,
1110. Rather, this Court will only review sentences for
their legality. The standard for such review is whether the
court abused its discretion in the sentencing process. State
v. White (Mont. 1982), 39 St.Rep. 1619, 650 P.2d 765.
Whatever weight the court afforded the statements of the
Spokane residents, it is clear he felt these recommendations
were outweighed by the defendant's present conduct, found by
the jury to be felonious, and his past record, including
grand larceny by check at the age of 34.
The sentence to be imposed is properly vested in the
sound discretion of the court. We find no abuse of this
discretion.
The judgment of the District Court is affirmed.
We concur:
Chief Justicg -
&
Justices
Mr. Justice Daniel J. Shea will file a special concurring
opinion later.