No. 85-372
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN F. LANCE,
Defendant and.Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lance, pro set Florence, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Attorney General, Helena
Robert L. Deschamps, 111, County Attorney, iss sou la,
Montana
Submitted on Briefs: Jan. 17, 1 9 8 6
Decided: June 17, 1 9 8 6
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
After a jury trial in the District Court of the Fourth
Judicial District, appellant, John Fesler Lance, was convict-
ed of violating s '
45-5-203 (1) (b), MCA (1983) which provides:
A person commits the offense of intimi-
dation when, with the purpose to cause
another to perform or to omit the per-
formance of any act, he communicates to
another a threat to perform without
lawful authority any of the following
acts:
(b) subject any person to physical
confinement or restraint.
On appeal, Lance contends that this statute is an unconstitu-
tional violation of the First Amendment, and he claims that
several other errors occurred in the lower court which re-
quire reversal of his conviction. Since we uphold the con-
stitutionality of the Montana intimidation statute and find
no merit in the other issues raised, the judgment of convic-
tion is affirmed.
The events leading up to Lance's arrest and conviction
began over seven years ago when he was served with a petition
for divorce. Lance chose to represent himself in those
proceedings, as he does in this case. When the decree of
dissolution was granted, Lance lost custody of his children
and a substantial amount of marital property. Sometime
later, he lost possession of his very valuable ranch in
Florence, Montana. From that point to the present, Lance has
carried on a one-man crusade to recover his ranch, custody of
his children and alleged substantial damages he has sustained
1 This statute was amended subsequent to Lance's
conviction.
in the process. Numerous lawsuits have been filed by Lance
in the state and federal courts in an effort to obtain these
things; however, he has been met with constant defeat and
dismissal of many of his actions. This lack of success has
convinced Lance that there is a colossal conspiracy against
him by most of the judiciary and attorneys in Montana. It is
Lance's quest for final justice and his obvious frustration
over his losses which has ultimately led to the conviction at
issue in this case.
Five separate letters written and mailed by Lance form
the basis for his arrest and conviction. These letters were
dated July 17, 1984, August 15, 1984, September 3, September
8, and September 13, 1984, and were sent to Nate Denman,2
2 Two separate letters were mailed by Lance to Denman.
Pertinent excerpts which constitute the threats for which
Lance was convicted follow:
First letter "... the answer--to focus public attention
on what has taken place --is violence. And I mean taking a
hostage which would put this story on page one of every
newspaper. My defense at a jury trial I would request later
would be 'all of the above.' ... In short, if the road to
the ranch is cut off, litigation stops and I am ready to turn
to violence to reach my ends ... A coverup will never work
here because I am ready to put down my life and my personal
freedom, if necessary, to expose all of this. Further, I
believe I am perfectly capable of getting that hostage in
hand, and capable of negotiating for his/her release. There
are no concrete plans now. No hostage is positively select-
ed. No dates have been set. No location has been
selected ... But if they do, the final straw is violence."
(Emphasis his. )
Second letter:
"All my life I have sought to avoid violence. Always there
has been another way out. Here it is not
possible ... Those incidents alone, Denman, will allow me
to proceed to violence in a desperate, last ditch quest for
final justice. With a key hostage in hand, I will negotiate.
There are no alternatives ... I will bring the Governor
into this and probably Dean of the Law School, but only when
hostage is in hand. Then we will go to radio, TV, newspa-
pers, other media. This story will be told--over a
telephone--by John Lance. Hour after hour unless the law
Judge Kichael ~ e e d ~ , ~wingt4 and Judge Jack Green,5
Tom
respectively. Basically, Lance stated in the letters that if
his remaining lawsuits are dismissed, he will take a hostage
presses me. In that event, they will choose violence. And
there - times when violence is the onlv wav to create
are
change ... A A
I will pay any price--take any risk--to even the
score ... If you think my 'objections' raise eyebrows (they
do) just wait. The real exposure has not even begun. There
are a lot of targets. With a hostage in hand, I will have an
attentive audience." (Emphasis his.)
3 Pertinent excerpts of the letter are:
"I of course expect to have my main federal lawsuit dis-
missed. There is no justice in any of this.
... If a federal dismissal comes, I will of course appeal
to the Supreme Court of the United States but there I will
have about a 2% chance of having the appeal heard. So at
that point the whole contest will really be removed to the
'streets of Dodge' for resolution and I of course plan to put
this whole story at that time on the front page of every
newspaper in the U.S. ... The contest will continue until
I have my ranch and my children and damages determined by a
jury.
4 Pertinent excerpts of the letter are:
"Enclosed is a copy of my letter to Denman dated August 15,
1984. I believe it indicates where I stand with regard to
Denman and with regard to the use of violence to find final
justice or to upset the impropriety found today in this court
system. .. Then when I do act - when the relief has not
come through the courts - the record will clearly indicate
what is wrong, who is wrong, and why it remains wrong. From
a telephone, my hostage and I will negotiate. There will be
no violence unless the 'System' then initiates violence by
attempting to reach the hostage. That provocation would
result in violence without question. But I will have the
right hostage and if violence comes, there will be very,
very little loss to society."
5 Pertinent excerpts of the letter are:
"However, I can tell you one thing I do know. I will fight
for final justice here to the very end of my life. It is my
intent and I have resolved that if these lawsuits are improp-
erly dismissed on appeal, I w m 1 at that point take the
necessary action to put this entire matter on the front page
of every newspaper in the United States of America. Needless
to say, this will not be done by writing to the editors of
each newspaper. It will take a substantial public act to
reach this goal and it is my belief that regardless of the
for the purpose of focusing nationwide media attention on his
plight and for the purpose of negotiating to obtain the
return of his ranch and his children, and for the damages he
has sustained. Nate Denman was particularly alarmed by the
letters he received, and he sent relevant excerpts of them to
the Director of the Montana State Hospital at Warm Springs
who, in turn, sent the excerpts to the County Attorney in
Hamilton, Montana. Subsequently, on September 19, 1984, the
Missoula County Attorney filed an Information charging Lance
with the offense of intimidation.
Lance was arrested on September 20, and bail was ini-
tially set at $500,000. However, one week later bail was
reduced by the District Court to $50,000, and on November 8
Lance was released on his own recognizance. During this
time, Lance brought an application for writ of habeas corpus
alleging that S 45-5-203, MCA, was unconstitutional on its
face and as applied. On November 1, 1984, the District Court
issued an opinion upholding the constitutionality of that
statute and denying the application for the writ. On Decem-
ber 6, the court accepted the State's motion to file an
amended information. Trial was set for January 28, 1985 and
on January 30 the jury found Lance guilty of intimidation.
Lance conducted his own defense at trial. and continues his
pro se status on appeal.
Appellant has raised numerous issues, both formally and
informally, in his lengthy brief. The precise issues raised
personal consequences to me, that act must be done here if
the judicial system denies me my just and proper right to
jury trials for these defendants who are clearly corrupt and
who have quite obviously conspired against me."
were difficult to discern in view of the fact that they were
intertwined with rambling attacks on the judiciary and
attorneys of Montana, in addition to allegations of a massive
conspiracy designed to prevent him from recovering what he
lost in the divorce seven years ago. Nevertheless, we
believe that there are six issues which are legitimately
raised:
(1) Does S 45-5-203 (1) (b), MCA (1983), violate the
First Amendment because it is overbroad or because it is
unconstitutional as applied?
(2) Was reversible error created by the fact that bail
was originally set at $500,000 but was reduced to $50,000 one
week later, in light of the fact that appellant was released
on his own recognizance six weeks later?
(3) Was appellant denied his constitutional right of
access to the courts during his six week pre-trial confine-
ment by being denied access to a substantial legal library
and by the failure of his court appointed counsel to comply
with every request he made?
(4) Was reversible error created when the prosecutor
obtained juror affidavits before a mistrial hearing was held
which was based on alleged witness misconduct occurring at
the trial without first acquiring the court's permission to
do so?
(5) Did the trial court abuse its discretion by ac-
cepting the second amended information?
a
(6) Did the trial court abuse its discretion by fail-
ing to allow appellant a continuance so he could file pro-
posed jury instructions, which resulted in proposed jury
instructions being filed only by the prosecution?
Another issue raised by appellant involves his allegations of
conspiracy and corruption within the legal community in
Montana. Since this issue is totally irrelevant to his
appeal and consists largely of groundless speculation, we do
not consider it in our decision.
I
Since appellant's first issue requires us to construe
Montana's intimidation statute with the commands of the First
Amendment in mind, and because there may be some doubt as to
its constitutionality after the federal court decision in
Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438, we will
discuss this issue in some detail.
A
Appellant first contends that 5 45-5-203 is unconstitu-
tional on its face because it is overbroad. This statute is
particularly susceptible to an overbreadth attack because it
makes criminal a form of pure speech. Subsection (b) imposes
criminal liability when a person "communicates to another a
threat" to subject any person to physical confinement or
restraint without lawful authority and with the purpose of
causing another to perform or omit the performance of any
act. Thus, the heart of the offense is communication. No
overt act or conduct of any kind is required. Although the
statute requires the communication of a threat to take some
specific act coupled with a criminal state of mind, the
offense is complete upon the communication of the threat.
Only words are punished by the statute. Therefore, it can
withstand appellant's attack upon its constitutionality only
if it does not apply to speech that is protected by the First
Amendment. Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct.
1103, 31 L.Ed.2d 408.
The doctrine of overbreadth in the area of First Amend-
ment freedom of speech is an exception to the normal rules of
standing. This doctrine allows appellant to raise an objec-
tion to 5 45-5-203 on First Amendment grounds even though the
statute would have been constitutional as applied to his
particular case. "It matters not that the words [appellant]
used might have been constitutionally prohibited under a
narrowly and precisely drawn statute." Goodinq, 405 U.S. at
520. "[Aln individual whose own speech or expressive conduct
may validly be prohibited or sanctioned. is permitted to
challenge a statute on its face because it also threatens
others not before the court--those who desire to engage in
legally protected expression but who may refrain from doing
so rather than risk prosecution or undertake to have the law
declared partially invalid." Brockett v. Spokane Arcades,
Inc. (1985), U.S. , 105 S.Ct. 2794, 2802, 86 L.Ed.2d
394, 405-406. Thus, the statute may be unconstitutional on
its face even though it would be constitutional as applied to
appellant.
Section 45-5-203 (1) (c) has been declared
unconstitutional by the Ninth Circuit in Wurtz on grounds of
overbreadth. Appellant contends that Wurtz controls the
decision i n this case.
. We disagree with this view for two
reasons.
First, only subsection (c) was at issue in Wurtz, and
the court considered the overbreadth challenge solely with
6 Subsection (c) made it unlawful to threaten to
"commit any criminal offense."
regard to that subsection. The court did not declare the
entire intimidation statute to be unconstitutional; rather,
it held only 45-5-203 (1)(c) to be unconstitutional. It is
an elementary principle of constitutional law that "the same
statute may be in part constitutional and in part unconstitu-
tional, and that if the parts are wholly independent of each
other, that which is constitutional may stand while that
which is unconstitutional will be rejected." Brockett, 105
S.Ct. at 2801, quoting from Allen v. La. (1881), 103 U.S. 80,
83-84, 13 Otto 80, 26 L.Ed. 318.
We view the separate subsections of the statute as
completely independent of each other. It was the legisla-
ture's purpose to impose criminal sanctions on individuals
who threaten to commit certain specific acts. Simply because
threats to "commit any criminal offense" were held to be
unconstitutional does not mean that the legislature would not
want to continue punishing threats to "subject any person to
physical confinement or restraint." One prohibition in the
statute does not hinge on another. Therefore, the decision
in Wurtz declaring subsection (c) to be unconstitutional does
not state the applicable law in this case.
Secondly, Wurtz is not controlling here because it was
decided without the benefit of recent United. States Supreme
Court cases clarifying the analysis to be applied in deter-
mining whether a statute is overbroad. Broadrick v. Oklahoma
(1973), 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d
830, 842, established that where speech is combined with
conduct, "the overbreadth of a statute must not only be real,
but substantial as well, judged in relation to the statute's
plainly legitimate sweep." (Emphasis added.) There was some
question after Broadrick whether substantiality was
applicable where pure speech was involved. However, that
question was answered in New York v. Ferber (1982), 458 U.S.
The statute at issue in Ferber prohibited distribution
of child pornography. Admittedly, only speech was involved,
and the question left unanswered in Broadrick was directly
presented. The Court held:
This case, which poses the question
squarely, convinces us that the ration-
ale of Broadrick is sound and should be
applied in the present context. ...
The premise that a law should not be
invalidated for overbreadth unless it
reaches a substantial number of imper-
missible applications is hardly novel.
On most occasions involving facial
invalidation, the Court has stressed the
embracing sweep of the statute over
protected expression.
Ferber, 458 U.S. at 771.
The Court reiterated in Brockett that the substantial over-
breadth doctrine applies to pure speech. In footnote 12, the
Court stated: "The Court of Appeals erred in holding that the
Broadrick substantial overbreadth requirement is inapplicable
where pure speech rather than conduct is at issue. New York
v. Ferber (cite omitted) specifically held to the contrary."
Brockett, 105 S.Ct. at 2802.
Applying the foregoing principles to the present case,
we hold that S 45-5-203(1) (b) is not substantially overbroad.
It prohibits threats to subject any person to physical con-
finement or restraint without lawful authority with the
purpose of causing another to perform or omit the performance
of any act. Although the statute uses the words "physical
confinement or restraint," we construe the word "restraint"
to mean a "physical" restraint. The statute does not punish
any threat to subject another to some form of mental or
psychological restraint. Only threats to subject another to
a physical confinement or a physical restraint are punish-
able. Clearly the State has a legitimate and considerable
interest in preventing persons from threatening to take a
hostage or impose some other unlawful physical restraint on
another for the sole purpose of attaining some end. Appel-
lant has not identified, and we are unable to find, any
situations where a person would be constitutionally permitted
to make such a threat. Although it might be possible that
some rare situations will arise in the future where a person
could constitutionally threaten to take a hostage to accom-
plish some end, those possible unconstitutional applications
of the statute are not sufficient to invalidate it on its
face. As Ferber said, quoting from Parker v. Levy (1974),
417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439:
This Court has ... repeatedly ex-
pressed its reluctance to strike down a
statute on its face where there were a
substantial number of situations to
which it might be validly applied.
Thus, even if there are marginal appli-
cations in which a statute would in-
fringe on First Amendment values, facial
invalidation is inappropriate if the
"remainder of the statute ... covers a
whole range of easily identifiable and
constitutionally proscribable ...
conduct ... " (Citation omitted.)
Ferber, 458 U.S. at 770, Fn. 25.
Therefore, since appellant has been unable to identify any
substantial applications of the statute to constitutionally
protected speech and has not shown how the statute impacts
differently on third parties not before the Court, his claim
that the statute is unconstitutionally overbroad must fail.
We now proceed to determine whether S 45-5-203(1) (b) is
unconstitutional as applied to appellant. We note at the
outset that the statute carries a heavy burden since it seeks
to prohibit pure speech without any requirement of an overt
act. However, this fact alone is not sufficient to invali-
date such a statute. It is only when a statute prohibits
"protected" speech that it will be found to be unconstitu-
tional, keeping in mind, however, that the vast majority of
speech is protected.
Beginning at least as early as 1919, the United States
Supreme Court recognized that the right to speak one's mind
on any subject at any time was not the intent of the First
Amendment. Justice Holmes wisely observed that " [t]he most
stringent protection of free speech would not protect a man
in falsely shouting fire in a theater, and causing a panic."
Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct.
247, 249, 63 L.Ed. 470, 473. The Court gave greater scope to
this doctrine over twenty years later in Chaplinsky v. New
Hampshire (1942), 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 766.
The Court stated:
Allowing the broadest scope to the
language and purpose of the Fourteenth
Amendment, it is well understood that
the right of free speech is not absolute
a-t all times and under all circumstanc-
es. There are certain well-defined and
narrowly limited classes of speech, the
prevention and punishment of which have
never been thought to raise any Consti-
tutional problems. These include the
lewd and obscene, the profane, the
libelous, and the insulting or "fight-
ing" words--those which by their very
utterance inflict injury or tend to
incite an immediate breach of the peace.
It has been well observed that such
utterances are no essential part of any
exposition of ideas, and are of such
slight social value as a step to truth
that any benefit that may be derived
from them is clearly outweighed by the
social interest in order and morality.
Chaplinsky, 315 U.S. at 571-572.
Thus, Chaplinsky established that "fighting words" do not
come within the protection of the First Amendment.
Roth v. United States (1957), 354 U.S. 476, 77 S.Ct.
1304, 1 L.Ed.2d 1498, established another exception to con-
stitutionally protected speech. The Court observed that "the
First Amendment was not intended to protect every utterance,"
and held that "obscenity is not within the area of constitu-
tionally protected speech or press." Roth, 354 U.S. at 483,
485. The Court took a further step in Ferber. There it held
that child pornography, even though it may not meet the
standards established for obscenity, is not speech protected
by the First Amendment. The Court based its holding in large
part on a finding that the state's interest in regulating
child pornography was of "surpassing importance," and by
finding that the evil sought to be prevented overwhelmingly
outweighs the expressive interests involved.
With these firmly established principles as our guide,
and ever mindful of the stringent protection of speech re-
quired by the First Amendment, we hold that threats of the
kind prohibited by S 45-5-203 (1)(b) are not speech protected
by the First Amendment. The State has a substantial, if not
overwhelming, interest in preventing intimidation of the
public and the resulting fear and anxiety caused by these
terroristic-type threats. "It has been clear since this
Court's earliest decisions concerning the freedom of speech
that the state may sometimes curtail speech when necessary to
advance a significant and legitimate state interest." City
Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 804,
104 S.Ct. 2118, 2128, 80 L.Ed.2d 772, 786. The value to
society of permitting threats of this nature is minuscule at
best. Furthermore, the statute does not aim at discriminat-
ing between different types of speech, nor does it prohibit
any constitutionally protected speech. The threats prohibit-
ed by it are punishable whatever their purpose and however
noble the ultimate goal of the threatener may be. The stat-
ute is based on content only insofar as to determine whether
a prohibited threat is involved in the speech.
Thus, it is not rare that a
content-based classification of speech
has been accepted because it may be
appropriately generalized that within
the confines of the given classifica-
tion, the evil to be restricted so
overwhelmingly outweighs the expressive
interests, if any, at stake, that no
process of case-by-case adjudication is
required.
Ferber, 458 U.S. at 763-764.
The proposition that specific types of threats do not
come within the protection of the First Amendment has been
given firm support by the United States Supreme Court and
several lower federal courts. In Watts v. United States
(1969), 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d
664, 667, a case involving threats against the President, the
Court had no difficulty in finding that "the statute under
which petitioner was convicted is constitutional on its
face." Similarly in United States v. Howell (5th Cir. 1983),
719 F.2d 1258, 1261, the court held:
Not all utterances are afforded the same
degree of first amendment protection;
whatever contribution statements like
Howell's may make to the "uninhibited,
robust, and wide-open" debate on public
issues to which this nation is commit-
ted, the compelling governmental inter-
est in protecting the safety of the
Chief Executive has been thought to
outweigh it.
Howell had been convicted of threatening the life of the
President for making the statement: "If released, I would
make my way to Washington and kill him--I will kill the
President."
However, § 45-5-203 does not prohibit all speech which
is "threatening." "What is a threat must be distinguished
from what is constitutionally protected speech." Watts, 394
U.S. at 707. We find that implicit in the word "threat", as
used in the intimidation statute, is a requirement that it be
communicated under circumstances which reasonably tend to
produce a fear that the threat will be carried out. This
implicit requirement has been made explicit by the legisla-
ture in its 1985 amendment of the statute. Furthermore, the
threat must be a "true threat." Threats which are, when
taken in context, made in jest or which are simply "political
hyperbole" are not punishable under the statute. Watts,
supra. Mere advocacy of the use of force or violence to
accomplish some end also does not constitute a threat under
the statute since that form of expression is protected by the
First Amendment. NAACP v. Claiborne Hardware Co. (1982),
458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215; Brandenburg v.
Ohio (1969), 395 U.S. 444, 89 S.Ct. 1827, 23 ~.Ed.2d 430.
Rather, only serious expressions of an intention to take a
hostage, murder, inflict serious injuries on persons or
property, or commit a £el-ony, for the purpose of accomplish-
ing some end constitute a threat punishable under the stat-
ute. However, the question of intention is to be decided on
the basis of an objective standard, United States v. Kelner
(2nd Cir. 1976), 534 F.2d 1020, and whether a statement
constitutes a true threat is to be determined by the trier of
fact. United States v. Merrill (9th Cir. 1984), 746 F.2d.
458; Howell, supra.
We hold that appellant's statements constitute threats
punishable under S 45-5-203 (1) (b) . He repeatedly wrote that
he would take a hostage in order to bring public attention to
his plight and for the purpose of securing the return of his
ranch, his children, and the monetary damages he has suf-
fered. (See especially Fn. 2 and Fn. 4.) These statements
were more than mere political opposition to the Montana legal
system, as appellant contends on appeal. They were serious
threats to take a hostage in order to attain his goals. This
type of speech is so inimical to society and plays such a
minimal part in the exposition of ideas that the State may
constitutionally prohibit it. An individual cannot be per-
mitted to terrorize members of the public through threats,
and then claim protection from prosecution under the First
Amendment. Freedom of speech was never meant to be stretched
to the point where more injury is done to society as a whole
than good. Furthermore, the statute is narrowly tailored to
accomplish the State's asserted purpose--caustic, abusive,
and robust speech is fully protected until it rises to the
level of threats which cause harm to society. "The ordinance
curtails no more speech than is necessary to accomplish its
purpose." City Council, 466 U.S. at 810.
Under the commands of the First Amendment, we have
scrupulously reviewed appellant's conviction. We hold that
the Montana intimidation statute is neither unconstitutional-
ly overbroad, nor is it unconstitutional as applied.
Appellant contends next that reversible error was
created by the lower court in setting his bail at $500,000
originally, and then in setting it at $50,000 one week later.
The imposition of bail is an area which is largely within the
discretion of the trial court, and the amount set will always
be upheld if it is reasonable. State v. McLeod (1957), 131
Mont. 478, 311 P.2d 400. However, it is not necessary for us
to decide whether $50,000 was a reasonable amount in appel-
lant's case because the issue is moot.
Appellant was released on his own recognizance at least
two and one half months before his trial began. Under the
circumstances, this was an adequate amount of time to enable
this pro se defendant to prepare his case. Appellant has not
demonstrated any prejudice which may have resulted by having
only two and one half months to prepare his case, and has not
shown how having the extra month and one half he spent in
confinement would have materially benefitted his defense. We
find no error on this basis.
Appellant contends that he was unconstitutionally
denied access to the courts during his pre-trial confinement
by being denied access to a substantial legal library and by
certain inadequacies of his court appointed counsel.
Appellant is correct in his assertion that a prisoner
has a constitutional right of access to the courts. However,
the cases appellant cites in support of this rule and others
that we have been able to locate are concerned solely with
the right of indigent prisoners. Johnson v. Avery (1969),
393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 724,
held only that unless the "State provides some reasonable
alternative to assist inmates in. the preparation of petitions
for post-conviction relief, it may not validly enforce a
regulation . . . barring inmates from furnishing such assis-
tance to other prisoners." (Emphasis added.) ~ o u n d s v.
Smith (1977), 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52
L.Ed.2d 72, 83, went a step further and held:
[Tlhe fundamental constitutional right
of access to the courts requires
prison authorities to assist inmates in
the preparation and filing of meaningful
legal papers by providing prisoners with
adequate law libraries or adequate
assistance from persons trained in the
law. (Emphasis added. )
Nowhere is there a requirement that county jails provide
persons awaiting trial with a substantial legal library. The
only requirement is that prisons provide inmates with ade-
quate legal libraries or some other reasonable alternative.
We express no opinion on whether this constitutionally man-
dated requirement extends to persons awaiting trial while in
county jails, nor as to whether it extends to non-indigents.
R.ather, we find that appellant was in fact provided with a
reasonable alternative to an adequate legal library.
Appellant chose to proceed pro se in defending the
charge brought against him and in his action for writ of
habeas corpus. Even though appellant was not indigent, the
court appointed counsel to assist him in doing legal re-
search. Counsel made copies of cases appellant requested,
did some independent research for appellant, and allowed
appellant the use of his own Montana codes. The sheriff at
the county jail made every effort to accommodate appellant's
request to do research at the jail and to prepare his brief.
The resulting brief appellant filed in support of the writ of
habeas corpus was 47 typed pages long and it cited numerous
cases, the majority of which represented the relevant law on
the subject. We find that appellant was provided with more
than adequate legal assistance during the short time he was
incarcerated, and that his right of access to the courts was
not denied.
IV
Sometime after the trial had concluded, appellant moved
for a mistrial on the basis of alleged misconduct by a wit-
ness during the trial. It appears that during Mr. Denman's
testimony the court recessed, and appellant, the county
attorney, and the judge went into chambers. While they were
out, one of the jurors asked the bailiff if he could be
excused to go to the bathroom. Mr. Denman replied that the
juror had a constitutional right to do so. Before the mis-
trial hearing was held, the prosecutor obtained, without
first acquiring the court's permission, affidavits from
several jurors which generally stated that the remark was
taken as a joke and had no influence on their decision.
Appellant contends that the prosecutor's action deprived him
of due process of law.
Appellant has not cited a single case which holds that
the taking of juror affidavits by the prosecutor after trial
amounts to a denial of due process. We fail to see how he
could have been prejudiced in anyway by these actions.
Furthermore, he has not demonstrated any prejudice to his
case by the humorous remark made by the witness. No substan-
tial rights of appellant were affected by the witness's
remarks nor by the prosecutor's conduct. Therefore, if there
was any error, it must be disregarded. Section 46-20-702,
MCA.
Appellant contends next that the trial court committed
error by its acceptance of the Second Amended Information.
He bases this contention on two grounds: (1) the amended
information failed to include all of the necessary elements
because it did not state that the threat was made to the
"victim" as required by State v. Wurtz, and (2) appellant was
not given proper notice of the hearing held to address the
proposed filing of the amended information, in violation of
the Fourteenth Amendment.
Appellant is correct in his reading of State v. Wurtz
(Mont. 1981), 636 P.2d 246, 38 St.Rep. 1808. That case
stated:
There are three elements which the State
must prove in order to sustain a charge
of intimidation: (1) that the defendant
communicated to the victim a threat to
commit one or more of the acts enumerat-
ed in section 45-5-203 (1); (2) that the
defendant was without legal authority to
perform the threatened act; and (3) that
the defendant had the purpose to cause
the victim to perform or omit the per-
formance of any act. (Emphasis added. )
Wurtz, 636 P.2d at 250. Under this definition, if the victim
to whom the threat is made is required to be the same victim
which defendant had the purpose of causing to perform an act,
appellant could not have been properly charged under the
statute because he communicated threats to four different
individuals with the purpose of causing either the State of
Montana or the Montana judiciary to perform an act; i.e., the
person threatened differed from the person sought to be
coerced.
The language of § 45-5-203 does not use the word "vic-
tim"; rather, the word "another" is used. We believe that it
is within the language and intent of the statute that the
person who receives the threat can be different from the
person who is sought to be compelled by the threat. Other-
wise, for example, an individual could contact the news media
threatening to take the life of a hostage if the Governor
does not meet his demands, and he could not be convicted
under this statute. But it is this very situation which the
statute is aimed at outlawing. Therefore, we find that the
decision in State v. Wurtz gave too narrow a reading of the
statute, and we overrule it to the extent that it is incon-
sistent with this opinion. Considering "another" with regard
to its plain meaning, the amended information sufficiently
charged appellant with the crime of intimidation. Further-
more, viewing the amended information together with the
contents of the supporting affidavit, it is clear that the
State intended to prove the offense of intimidation and that
sufficient facts were set forth to establish probable cause
for that offense, which is all that was required for the
court to accept the amended information. State v. Longneck
(1981), 196 Mont. 151, 640 P.2d 436; State v. Hamilton
(1980), 185 Mont. 522, 605 P.2d 1121.
As to appellant's assertion that he was not given
sufficient notice of the hearing, § 46-11-403, MCA states the
applicable rule:
(1) (a) An information may be amended in
matters of substance at anytime not less
than 5 days before trial with leave of
court.
( c ) If the motion is timely and the
amended information is supported by
probable cause, the court shall grant
leave to amend.
(e) The defendant shall have a reason-
able period of time to prepare for trial
on the amended information.
The amended information was accepted by the court on December
6, 1984, and trial began on January 28, 1985. Under the
circumstances, this was a reasonable amount of time for
appellant to prepare for trial on the amended information,
which did not differ materially nor state a separate charge
from the original information. Nowhere in the statute is
there a requirement that a defendant be given notice before
the amended information may be accepted by the court, nor is
such notice required by due process. The trial court did not
err in its acceptance of the amended information.
Finally, appellant contends that the trial court erred
by not granting him a continuance so that he could file
proposed jury instructions. Under S 46-13-202(3), MCA,
[a]11 motions for continuance are ad-
dressed to the discretion of the trial
court and shall be considered in the
light of the diligence shown on the pa.rt
of the movant. Th.is section shall be
construed to the end that criminal cases
are tried with due diligence consonant
with the rights of the defendant and the
state to a speedy trial.
The only reason appellant gave in support of his motion was
that because of all his other pending lawsuits, he simply did
not have time to prepare the proposed instructions. Appel-
lant chose to proceed pro set and he will be held to the same
standards applied to attorneys. Excuses based on lack of
time to prepare because of other commitments are among the
most frequently used by attorneys and are the least likely to
justify a continuance. State v. Paulson (1975), 167 Mont.
310, 315, 538 P.2d 339, 342, held:
Motions for continuance are addressed to
the discretion of the trial court and
the granting of a continuance has never
been a matter of right. (Citation
omitted.) The district court cannot be
overturned on appeal in absence of a
showing of prejudice to the movant.
Over four months elapsed between the time appellant was
arrested and the time when trial began. This was ample time
for appellant to prepare his case, and the reason given in
support of his motion for continuance was totally insuffi-
cient. We find no prejudice to appellant by the court's
denial of his motion.
The judgment of conviction is affirmed.
flW&
Chief Justice
We concur: