No. 85-550
I N THE SUPREME COURT OF THE STATE O MONTANA
F
1987
STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-VS-
DALE STATCZAR,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
W i l l i a m Eoggs a r g u e d , M i s s o u l a , Montana
Ferguson & M i t c h e l l ; P a u l e t t e C. Ferguson, Missoula,
Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Kimberly K r a d o l f e r a r g u e d , A s s t . A t t y . G e n e r a l , Helena
R o b e r t Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana; Karen Towsend a r g u e d , Deputy County A t t y .
Submitted: J u n e 1 0 1 1987
Decided: O c t o b e r 6 , 1987
Filed. :
-
OCT 6 1987.
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Dale Statczar appeals his conviction for
sexual intercourse without consent. Defendant was charged by
information on November 18, 1983. In January 1984, defendant
was found unfit to proceed to trial in a competency hearing
held pursuant to S 46-14-221, MCA. Following a second compe-
tency hearing in September 1984, the court reversed its
earlier decision and found defendant Statczar fit to proceed
to trial. Defendant's first trial in April, 1985 resulted in
a hung jury. Defendant was convicted following his second
trial in May and June, 1985. He was sentenced to twenty
years in the Montana State Prison with fifteen years
suspended.
We reverse.
Ten issues are presented for our review. Because we
are reversing defendant's conviction, we limit our review to
the following issues:
(1) Did the District Court err when it permitted the
defendant's former attorney, John Riddiough, to testify at
trial?
(2) Did the District Court violate defendant's right
against self-incrimination when it permitted. the State to
call Dr. William Stratford to testify against defendant?
(3) Does substantial evidence support the District
Court's determination that defendant was fit to proceed to
trial?
(4) Did the District Court err when it denied defen-
dant's motion for a mistrial based on alleged improper prose-
cutorial comments during closing argument?
The victim, J. R., testified as follows. In the early
morning hours of October 16, 1983, she was attacked by two
men outside a Circle K store located on Russell and Longstaff
Streets in Missoula. Moments prior to the attack, J. R. made
a phone call to her boyfriend, Lane Cunningham. J. R. and
Cunningham argued during the telephone conversation.
Cunningham eventually hung up on J. R.. While J. R. was
redialing Cunningham's phone number, the defendant approached
her and asked if he could borrow some cigarettes. J. R.
refused. After Cunningham hung up on J. R. a second time,
she walked to her car for money for additional phone calls
and more cigarettes. J. R. 's car was parked beside the
Circle K store. As J. R. approached her car, two men grabbed
her from behind and dragged her to another vehicle. She
recognized one of her assailants as the man who had earlier
asked for cigarettes.
After J. R. was dragged to the other vehicle, one of
her assailants held her down, while the defendant moved on
top of her. J. R. stated she was raped with an artificial
device, "a penis that wasn't real." She also testified that
the artificial penis was shoved into her mouth and she de-
scribed biting it and causing no reaction in the defendant.
J. R. was able to determine that defendant was wearing "some
sort of bag" along his thigh. Finally, J. R. testified the
defendant inserted several smooth stones in her vagina after
defendant's accomplice asked if "he'd gotten his rocks off
yet." J. R. was further assaulted and threatened by the two
men before being pushed from the car. Testimony at trial
established the above-mentioned attack took place between
2:30-3:00 a.m., with the most likely time of attack at 2 : 4 5
a.m.
At 3 : 1 4 a.m., 911 received a call from a woman who
requested to remain anonymous, stating that she witnessed,
approximately one-half hour previously, a rape or its after-
math at the Circle K store on Grant Avenue and South Avenue.
The anonymous caller stated the victim had left the crime
scene in a car. The caller further stated that she followed
the victim to 14th Street, where the victim parked her car
and disappeared on foot. The informant stated she stopped,
looked in the car, and found a purse containing a slip of
paper with two telephone numbers. She recited the numbers to
the 911 operator. The telephone numbers belonged to Lane
Cunningham and Delores Reno. In response to the call, a
patrol car was dispatched to the Circle K at Grant Avenue and
South Avenue. The officers found no evidence of a
disturbance.
At 4:35 a.m., J. R. placed a call to 911. She reported
that she was attacked after making a phone call at the Circle
K store on Grant Avenue and South Avenue. Missoula City
Police Officer Don Millhouse responded to J. R.'s call at
4:54 a.m. J. R. reported to Millhouse that she had "recov-
ered" her car and purse. J. R. then changed her statement
and told Officer Millhouse she was attacked near another
Circle K store at Russell and Longstaff.
J. R. was taken to St. Patrick's Hospital. She was
examined by emergency room personnel. J. R. had scratches
around the chest, abdomen, and breasts and dirt around the
perineal area, and "five roundish stones in the vagina,
ranging in size from a quarter of one inch to two inches."
Later that afternoon J. R. told Detective Pete
Lawrenson that her assailant was a white male, twenty-five to
thirty years of age, 5'6" to 5'8" in height, with bushy
sideburns and a mustache. She also stated that he had a
plastic-like bag attached to his leg. She described the
assailant's vehicle as a d.ark colored "car-like truck." The
assailant was wearing a dark jacket with something silver,
perhaps buttons, on the shoulder.
Detective Lawrenson contacted each Missoula urologist
for information concerning a person matching this
description. Dr. Bryan Olson responded that defendant Dale
Statczar matched the above-mentioned description.
Detective Lawrenson presented J. R. with a six-person
photo lineup including Statczar's photograph. J. R. identi-
fied defendant Statczar as her assailant.
Defendant was arrested eighteen days after the crime,
on November 3, 1983. A dark blue Chevrolet "El Camino" be-
longing to defendant Statczar's brother was found outside
defendant's home. Law enforcement personnel did not conduct a
forensic test of the vehicle's interior. A search warrant
for defendant's residence led to the seizure of a dark jacket
with silver buttons and a plastic syringe which the defendant
used. for maintenance of his urine bag.
Defendant Statczar, at the time of his arrest, was
twenty-three years old. When Statczar was nineteen years
old, he was involved in a motorcycle accident leaving him
impotent, without urinary function and with a stiff and
disfigured. left leg. Statczar spent approximately one and
one-half years at St. Patrick's Hospital in Missoula recover-
ing from his injuries. Testimony revealed that prior to his
motorcycle accident Statczar possessed severe learning
disabilities.
Statczar wa.s sent on November 3, 1983, to the Montana
State Hospital at Warm Springs for evaluation of his fitness
to proceed. On January 18, 1984, following examination by
Dr. Harry Xanthopoulos, chief psychiatrist at the Montana
State Hospital, and Dr. Roy Hamlin, psychologist, the court
found defendant unfit to proceed to trial.
A second competency hearing was held on September 14,
1984. Dr. William Stratford testified for the State. Dr.
Xanthopoulous and defendant's attorney John Riddiough testi-
fied for defendant. The court found. defendant competent and
fit to proceed.
A three-week trial, held in April, 1985, resulted in a
hung jury. A second trial, held from May 21 to June 5, 1985,
resulted in defendant's conviction.
Issue 1
Did the District Court err when it permitted defen-
dant's attorney, John Riddiough, to testify at trial?
During the September 14, 1984, competency hearing,
defendant's second court-appointed attorney, John Riddiough,
called himself to the witness stand. Riddiough testified in
narrative form that he had great difficulty communicating
with defendant Statczar. Riddiough stated that defendant had
told him three different alibis concerning his whereabouts
during the night and early morning hours of October 15 and
16, 1983. Riddiough testified, "Statczar related to me that
he had little or no recollections of giving the previous
stories ... " Riddiough also testified that Statczar did
not appreciate the significance of the varying alibi stories:
My impression was that he believed
wholeheartedly in the story that he had
given me. My impression was that he was
not giving me a story to attempt to come
up with a better alibi as it were. He
gave me the impression that, frankly, he
seemed surprised when I confronted him
with the previous alibi stories.
During Riddiough's testimony, Statczar remained seated
at defense counsel's table. Defendant was not called to
testify and did not object to Riddiough's testimony.
During the second competency hearing on September 14,
1984, Dr. Xanthopoulos and Dr. Hamlin testified that Statczar
was suffering from organic personality syndrome, that he had
an IQ of 75, and that he was functioning at a "borderline
level." When asked what a judge's role is at trial, Statczar
responded, "The judge is to wear a black robe and sit in
front of the courtroom."
Riddiough withd.rew as defense counsel following the
District Court's finding that defendant was competent to
stand trial. Riddiough was subsequently called to testify
for the State. At trial, Riddiough testified that defendant
had given three different statements concerning his where-
abouts on the night and early morning of October 15 and 16,
1983. Riddiough testified that defendant made the following
inconsistent statements: (1) that defendant went to a movie
with his brother and sister-in-law in Missoula and (2) that
he went to a birthday party with relatives in Ronan, and (3)
that he stayed home alone in Charlo. During closing argu-
ments, the State referred to Riddiough's testimony and argued
that defendant had. "lied" to his own attorney.
At trial, Riddiough was limited by the court to testi-
fying that he had been defendant's court-appointed counsel
and that defendant had made the above-mentioned inconsistent
statements. The court prohibited defense counsel from ask-
ing, and Riddiough from responding to, questions which defen-
dant contends would explain his inconsistent statements. The
court prohibited Riddiough from testifying that his inter-
views with defendant took place in Warm Springs State Hospi-
tal, that Riddiough felt defendant was mentally deficient and
unable to comprehend the proceedings and that Riddiough did
not believe defendant was lying.
Defendant contends that Riddiough's testimony at the
second competency hearing constituted a breach of his
attorney-client privilege. The attorney-client privilege is
defined in § 26-1-803, MCA:
An attorney cannot, without the consent
of his client, be examined as to any
communication made by his client to him
or his advice given thereon in the
course of his professional employment.
A careful review of the record reveals that defense
counsel Riddiough violated his confid-entialrelationship with
his client, Dale Statczar, when he offered testimony of
Statczar's conflicting alibi statements. At the September
14, 1984, competency hearing, Riddiough called himself to the
witness stand and stated: "I'm making this statement--
because it is a breach of the attorney-client privilege--
because I feel it is necessary to make this statement."
Section 26-1-803, MCA, provides that an attorney cannot be
examined regarding confidential communications made in the
course of employment "without the consent of his client."
Accordingly, only the client can waive the privilege. State
v. Iwakiri (Id. 1984), 682 P.2d 571, 574. We find no evi-
dence that defendant Statczar consented to Riddioughqs volun-
tary disclosure of defendant's confidential statements.
The State contends that, by failing to object to
Riddiough's testimony, defendant waived the attorney-client
privilege. A client may waive the attorney-client privilege:
If the client elicits testimony from the
lawyer-witness as to privileged communi-
cations this obviously would waive as to
all consultations relating to the same
subject, just a.s the client's own testi-
mony would.
McCormick, Evidence § 93 at 225.
* Defendant claims that he did not waive his
attorney-client privilege. Waiver is defined as the inten-
tional or voluntary relinqui.shment of a. known right or con-
duct which implies relinquishment of a known right. Kuiper
v. District Court (1981), 632 P.2d 694, 698, 38 St.Rep. 1288.
The burden of establishing waiver of the privilege is on the
party seeking to overcome the privilege. Miller v. Dis. Ct.
City and Cty of Denver (Colo. 1987), 737 P.2d 834, 838. Two
elements must be considered when a court reviews the waiver
of an attorney-client privilege: (1) the element of a cli-
ent's implied intention and (2) the element of fairness and
consistency. See, 8 Wigmore, Evidence O 2327 at 636; State
v. Balkin (Wash. 1987), 737 P.2d 1035, 1037.
An implied waiver must be supported by evidence showing
that defendant, by words or by conduct, has impliedly forsak-
en his privilege of confidentiality with respect to the
communication in question. Miller v. Dis. Ct., City and Cty
of Denver, 737 P.2d at 838. The State has not provided this
Court with evidence that defendant intended to waive his
attorney-client privilege. Defendant did not testify in
either competency hearing or in either trial. Defendant was
not asked whether he waived his attorney-client privilege for
the competency hearing or for all further judicial
proceedings.
The second part of Wigmore's waiver test concerns
consistency and fairness. We note that defendant Statczar
had no prior contact with the judicial system. Given defen-
dant's mental capacity and unfamiliarity with courtroom
procedure, we hold it is inherently unfair to require the
defendant, under the specific facts before us, to object to
his attorney's testimony at the competency hearing in order
to prevent his confidential statements from being used
against him at trial. We note that at trial, defendant's
newly court-appointed counsel strenuously objected to
Kiddiough's testimony.
We hold the following factors prejudiced defendant's
right to a fair trial: (1) Riddiough's testimony of defendant
Statczar's inconsistent statements was extremely prejudicial
with limited probative value. Rule 403, M.R.Evid. (2) The
State presented no evidence that Statczar intended to waive
his right not to divulge this privileged information. (3)
Defendant's right against self-incrimination need not be
surrendered in order to assert a statutory right. Section
46-14-103, MCA; Simmons v. TJnited States (1968), 390 U.S.
377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247, 1259. We hold
that fairness and consistency coupled with the lack of evi-
dence that defendant intended to waive the privilege requires
us to reverse defendant's conviction.
Issue 2
Did the District Court violate defendant's right
against self-incrimination when it permitted the State to
call Dr. William Stratford to testify against defendant?
Defendant claims that his right against self-incrimina-
tion was violated when the court permitted the State to call
Dr. William Stratford on rebuttal and allowed him to testify
to statements made by defendant. The testimony in issue
concerns defendant's recollection of events and defendant's
factual understanding of the case. Stratford examined defen-
dant on June 28, 1984, and on September 13, 1984. The State
called Stratford to testify at defendant's second competency
hearing on September 14, 1984, and at both of defendant's
trials.
Article 11, Sec. 26, 1972 Mont. Const., provides in
pertinent part: "No person shall be compelled to testify
against himself in a criminal proceeding."
At defendant's second trial, Dr. Stratford testified:
Q. (By Ms. Townsend) What was he able
to tell you, Doctor, with reference to
[defendant' s] knowledge of some of the
kinds of evidence that had been collect-
ed in this investigation?
Mr. Roggs : Objection, Hearsay, irrele-
vant.
The Court: Overruled.
A. [Defendant's] understanding, that
is, what he portrayed to me, I can tell
you. Whether it was truthful or not, of
course, is for the jury to decide.
A. Okay. [Defendant] indicated there
were particular kinds of automobiles, or
a type of automobile involved. He
indicated there was a particular kind of
jacket that may be involved by the
person who did this, that the individual
involved had a colostomy bag, that there
was a particular timing sequence, and
that there will be a lineup, not a
physical lineup, but as he referred to
it, a photographic lineup. These were
some of the factors that he indicated.
In its closing argument, the State referred to Stratford's
testimony tha.t defendant had knowledge of important and
incriminating evidence.
Section 46-14-401, MCA, provides in pertinent part:
- statement made - - purpose of
A - for the
py
s- examination or treatment
provided for in this chapter by a person
=
subjected to such examination or treat-
ment is admissible in evidence
against-him - any ~riminar~roceedinq
- in
... on any issue other - -that of
than -
-the issue of his mental condition,
his mental condition. - - admissible
on
It is
- - - -
whether or not it would otherwise be
considered a privileged communication,
unless it constitutes an admission of
guilt orthe crime charged. [~mphasis
added. -
1
Earlier we held that a defendant's admissions and
confessions, when made as a privileged communication to a
psychiatrist, are protected and therefore inadmissible.
State v. Clark (Mont. 1984), 682 P.2d 1339, 1352, 41 St.Rep.
833, 848. At trial, Dr. Stratford was permitted to testify
that defendant's mental capacity enabled him to recall cer-
tain elements of the State's case against the defendant.
Stratford's testimony is generally admissible because defen-
dant has placed his mental condition at issue. However,
Stratford's testimony of defendant ' s recall of the incrimi-
nating evidence (automobile, jacket, colostomy bag) comes
dangerously close to violating defendant's right against
self-incrimination. See, S 46-14-401, MCA, and Article 11,
Sec. 26, 1972 Mont. Const.
Since we are reversing defendant's conviction due to a
violation of defendant's attorney-client privilege, we are
not required to decide this issue. However, we caution the
District Court to refrain from admitting evidence of defen-
dant's mental condition which implies or constitutes an
admission of guilt of the crime charged. Section 46-14-401,
MCA.
Issue 3
Does substantial evidence support the District Court's
determination that defendant was mentally competent to pro-
ceed to trial?
Defendant contends the District Court abused its dis-
cretion when it determined defendant was fit to proceed to
trial. Fitness to proceed is defined as:
The test [is] whether the defendant has
sufficient present ability to consult
with his lawyer with a reasonable degree
of rational understanding and whether he
has a rational as well as a factual
understanding of the proceedings against
him.
State v. Austad (1981), 197 Mont. 70, 78, 641 ~ . 2 d1373,
1378, citing Dusky v. United States (1960), 362 U.S. 402,
403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825.
Section 46-14-1.03, MCA, provides:
- person - as a result of mental
No who,
disea-se or defect, is unable to under-
stand the proceedinqFagainst him or - to
assist - - - defense shali- be
in his own
tried, convicted or sentenced for the
commission of an offense so long as such
incapacity endures. [Emphasis added.]
Defendant contends "eyewitness identification, alibi
and statements attributed to the defendant comprised the core
of the [State's] case." In Austad, 197 Mont. at 79, 641 P.2d
at 1378, we held that if physical evidence comprises the core
of the State's case, defendant's fitness to proceed might
hamper "preparation and preservation of the defense." There-
fore, defendant argues his defense was clearly hindered by
his lack of fitness to assist and prepare his defense.
Defendant cites testimony of John Riddiough, Dr. Henry
Xanthopoulos, Dr. Roy Hamlin and Dr. William Stratford.
At the second competency hearing on September 14, 1984,
Dr. Stratford testified in detail about his methods of evalu-
ation and basis for his determination that defendant was fit
to proceed to trial. Dr. Stratford reviewed the allegations
made against the defendant, police reports concerning the
nature of the crime charged, information he had received from
the Montana State Hospital at Warm Springs and hospital
record from St. Patrick's Hospital regarding defendant's
motorcycle accident. Dr. Stratford concluded that defendant
Statczar was capable of understanding the proceedings against
him and of assisting in his own defense.
Dr. Xanthopoulos testified at the second competency
hearing that defendant suffers from a "serious mental defect,
Organic Personality Syndrome." He also testified that defen-
dant may have suffered brain damage following his motorcycle
accident in 1979 and stated that defendant performs at a
"borderline level" of intelligence. Dr. Hamlin's testimony
closely followed the testimony of Dr. Xanthopoulos.
As stated earlier, John Riddiough, defendant's court-
appointed attorney offered testimony that defendant was
unable to understand the judicial proceedings. As evidence
of defendant's mental incompetency, Riddiough also testified
that defendant had given three inconsistent alibi statements.
Fitness to proceed to trial is a matter largely within
the discretion of the District Court. Sections 46-14-202
through -222, MCA. Therefore, we will not overturn a deci-
sion of the District Court in the absence of a clear abuse of
discretion. The evidence may conflict, but it is substantial
if any reasonable trier of fact could rely upon the evidence
in support of its conclusion. State v. Hall (1983), 203
Mont. 529, 533, 662 P.2d 1306, 1308.
At the second competency hearing the State and defen-
dant presented conflicting evidence of Statczar's fitness to
proceed. The District Court heard the evidence and chose to
adopt the State's position. The record reveals that substa.n-
tial credible evidence supports the finding of the District
Court. Accordingly, we hold the District Court properly
determined that defendant was fit to proceed to trial.
Section 46-14-103, MCA.
Issue 4
Did the District Court err when it denied defendant's
motion for a mistrial based on improper prosecutorial com-
ments during closing argument?
Following the State's closing arguments defendant moved
for a mistrial alleging prosecutorial misconduct. The
District Court denied defendant's motion. During closing
argument the State argued that its office was too busy to
prosecute innocent persons: "We don't have to do that,
ladies and gentlemen. We do have 1,450 cases a year in the
county attorney's office. We don't have time to spend chas-
ing people that we believe are innocent or [have time] to
frame people. "
We disapproved an attorney's assertion of a personal
opinion in State v. Armstrong (1980), 189 Mont. 407, 427, 616
P.2d 341, 352. Because defendant has not provided this Court
with evidence of undue prejudice, we hold the District Court
properly denied defendant's motion for a new trial. However,
we caution the State to refrain from utilizing the
above-mentioned trial tactic.
We reverse defendant's conviction and. remand to the
District Court for further proceedings.
4
concur: