State v. Miller

NO. 8?-261

T N THE SUPREME COURT OF THE STATF O F M N A A
O T N

1988

THE STATE OF MONTANA,

P l a i n t i - f f and R e s p o n d e n t ,

-vs-

KENNETH ALBERT MILLER,

Defendant and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e F i f 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 J e f f e r s o n ,
The H o n o r a b l e F r a n k M .
Davis, Judge p r e s i d i n g .

COTJNSEL OF RECORD :

For Appellant:

Edmund F . Sheehy, J r . , Cannon a n d S h e e h y , H e l e n a , Montana

For Respondent :

H o n o r a b l e 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
John P. Connor, J r. , A s s i s t a n t A t t o r n e y G e n e r a l
R i c h a r d J. L l e w e l l y n , C o u n t y A t t o r n e y , B o u l d e r , Montana

Submitted: March 2 , 1988

Decided: May 4 , 1988

Filed:
MAY 4 - 1988
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

Kenneth Albert Miller (Miller) appeals his conviction
by jury trial and denial of his motion for a new trial. The
Fifth Judicial District Court, Jefferson County, Montana,
sentenced Miller to a 180-year sentence, 75 years on two
counts of deliberate homicide under the felony murder rule,
20 years for robbery, and 10 years for felony assault by
accountability. We affirm.
The issues we are presented with are stated as follows:
1. Did the District Court err in failing to grant
Miller's motion for a change of venue?
2. Did the District Court err in limiting the
introduction of character evidence pertaining to codefendant.
Sean Wentz?
3. Did the District Court err in denying Miller's
motion to dismiss at the close of the State's case-in-chief?
4. Did the District Court err in disallowing Miller
from cross-examining Wentz on the basis of a report prepared
for the defense but not supplied to the State?
5. Did the District Court err in disallowing
introduction of Exhibit 1 which portrayed Miller's version of
the crimes?
6. Was the jury verdict supported by sufficient
evidence?
7. Was Miller properly sentenced by the District
Court?
8. Did the District Court err in classifying Miller a
"Dangerous Offender"?
9. Did the District Court err in denying Miller's
motion for a new trial?
 10. Should Miller be eligible for parole in 174 years?
Miller was charged by amended information with four
counts of deliberate homicide under 45-5-102 (1)(a) and (b),
MCA; robbery, S 45-5-401, MCA; and felony assault by
accountability, SB 45-5-202 and 45-2-302, MCA. On March 19,
1987, he was convicted by a jury of deliberate homicide under
the felony murder rule, robbery and felony assault by
accountability. He was found not guilty of purposely and
knowingly committing deliberate homicide. He was sentenced
as stated above. A motion for new trial was filed June 22,
1987. After a hearing, the District Court denied the motion
for new trial on July 24, 1987. Miller appeals.
On November 18, 1986, Miller and Sean Wentz went
hunting after completing work for the same janitorial
service. They were drinking. After failing to drop a deer
that Miller shot at, they returned to Helena. Wentz picked
up his 12-guage shotgun and they purchased more beer.
Miller and Wentz then proceeded south from Helena.
After hunting near Clancy for awhile, they went to Tings bar,
in Jefferson City, and consumed more alcohol. Miller
suggested they go to Boulder Hot Springs. The two departed
at approximately 8:45 p.m. and arrived in Boulder at the
Lounge bar. During this portion of the trip, Wentz fired his
shotgun four or five times out the window of Miller's white
1968 Volkswagen.
Once at the Lounge, Miller and Wentz drank tequila and
received instructions to the hot springs from Terrance Duffy,
the owner and bartender. They headed south but could not
find the resort. Wentz testified that they agreed to a
robbery plan about eleven miles south of Boulder and turned
off the highway onto a lane that led to the Wortman family
residence. Miller claimed he turned off to urinate. He
stated that the door to the car was open and he was unaware
of what Wentz was doing due to loud rock music from the car
stereo. Wentz, with a shotgun, was observed by Bill Wortman,
who opened the door to the trailer house when he heard dogs
barking. Wortman, a 14 year-old-boy, testified that he was
frightened and slammed the door when Wentz pointed the gun at
him.
Wentz testified that he and Miller were at the trailer
and Wentz had the shotgun. Marilyn Wortman testified to
hearing a car start and seeing lights. She and another son,
Shannon, both saw taillights. Marilyn called the police.
Shannon Wortman also testified to finding a shotgun shell in
the yard the next morning. The shell was taken by Mrs.
Wortman to the Sheriff's Office and identified later at trial
by experts as being ejected from Wentz's shotgun.
Deputy D.D. Craft responded to Wortman's call at 9:10
p.m. At approximately 9 : 1 5 to 9:20 p.m. he saw a white
Volkswagen heading toward Boulder and radioed Chief of Police
Dennis Sullivan. Sullivan testified to observing a white
Volkswagen at the Lounge at approximately 9:20 p.m.
Wentz and Miller testified that they drove back to the
Lounge in Boulder. Wentz claimed they returned for the
purpose of robbing the bar. Wentz testified he brought the
shotgun in to frighten the victims and that Miller entered
the bar in front of him. He said Duffy came from around the
bar and a struggle ensued. Wentz said Miller encouraged him
to shoot Duffy. During the struggle, according to Wentz's
first statement, the shotgun discharged. The County
Attorney, John Conner, challenged Wentz as to conflicting
previous statements and physical evidence. Wentz recanted
this statement and testified that Miller grabbed the gun and
shot Duffy. He said Miller handed the gun back to him and
began picking up the spent shotgun shell when Marie Duffy
entered the bar. According to Wentz, as Mrs. Duffy came into
the bar, Miller reached around him and pulled the trigger
while Wentz held the gun.
Miller claimed they returned to the Lounge for further
directions to Boulder Hot Springs. He stated that as he and
Wentz sat drinking at the bar, Wentz and Duffy began to
argue. Wentz left the bar and returned with the shotgun.
Upon seeing the gun, Duffy struggled with Wentz and the gun
fired. Miller said he went to the side of the bar next to a
beam and did not see the actual shooting of Duffy because he
was on his knees facing the wall.
After the shooting, Miller stated Wentz ordered him to
retrieve the casing and threatened to shoot Miller if he did
not comply. Miller claimed Mrs. Duffy then entered the rear
of the bar and Wentz shot her. Miller claimed Wentz forced
him to grab money from the cash register and some liquor
bottles. Miller gave the cash to Wentz. The two returned to
the Volkswagen and proceeded to Helena. Miller said Wentz
claimed he killed 32 people in California, had made it 34 and
could make it 35.
The local Boulder authorities were notified of the
homicides at approximately 10:OO p.m. The Helena authorities
were notified by an all points bulletin. Upon returning to
Helena, Miller and Wentz proceeded to steal a Jeep and pickup
at a local car dealership. They then drove the stolen
vehicles to the residence of Tammy Harding, Wentz's fiancee.
She testified that Wentz and Miller entered the apartment and
Wentz told her two people were down in Boulder and Miller had
shot them. At trial, inconsistent testimony was presented
that Wentz told Harding he had shot the Duffys after Mr.
Duffy and he had argued.
Wentz grabbed clothes and additional ammunition from
the apartment. He and Miller then drove to a local car wash,
left the Jeep and returned to the automobile dealership to
retrieve Miller's Volkswagen. Chester Richey, a fellow
employee of Wentz and Miller for the janitorial service,
testified Wentz was brandishing the shotgun when he returned
to the dealership. Wentz told Richey not to call the police.
Richey stated Miller did what Wentz told him.
After Wentz and Miller left Tammy Harding's residence
the first time, she telephoned her father and he had his wife
notify the Helena police to dispatch an officer to Tammy
Harding's residence. Mr. Harding went to Tammy Harding's
residence and testified to seeing the two vehicles return
with "the black Chevy pickup coming first into the driveway."
With Miller driving the Volkswagen and Wentz driving the
pickup, the two did return to the circular driveway next to
Harding's apartment but did not leave their vehicles. Miller
claimed he drove to Harding's residence hoping the police
would stop them on the street. Miller and Wentz sped away
from the complex when they saw Helena Police Officer Brad
Hampton through Tarnmy Harding's windows. The two individuals
fled with Hampton in pursuit ultimately returning to the car
wash.
Hampton testified that he stopped Wentz and told him to
get on the ground face down. As Wentz did so, he threw some
money and stated that Miller had done the shooting. Miller
at this time did not stop but instead drove over a rocky
embankment and onto the road heading away from the car wash.
Miller was stopped shortly thereafter by officer Frank Melton
who ordered Miller to go "down into a prone position on the
ground" at which time keys to the stolen Jeep fell out of his
pocket. These keys were found underneath Miller but he
stated they were not his. Miller denied any knowledge as to
why he was stopped.
Wentz, after being read his Miranda rights, made
several statements to the arresting officers and officers at
the Lewis and Clark County Jail to the effect that Miller had
done the shootings. Wentz also gave a recorded statement to
Jefferson County authorities. Miller denied that he was ever
in Boulder but was too intoxicated to make any other
statements.
After the trial and sentencing, Wentz, while
incarcerated at the state prison, wrote two letters to
defense counsel for Miller exculpating Miller of the crimes.
In the letters Wentz admitted to contriving the robbery
scheme, committing the murders and threatening Miller into
assisting. At the hearing on the motion for a new trial, the
District Court disallowed the letters saying they were
hearsay and even if they were not, the court would not
overturn the jury's decision.

Motion to Change Venue
Miller contends the District Court erred in denying his
motion to change venue. This motion was properly filed prior
to trial and contained an affidavit and copies of newspaper
articles about the murders.
Miller claims that an article that appeared in the
December 4, 1986 Helena Independent Record, with a picture of
Miller containing a caption "fingered as having fired fatal
shoots" was inflammatory and prejudiced the jurors. He
further argues that two stories in the Butte
Montana Standard, November 20, 1986, and November 21, 1986,
and a video tape from Helena's KTVH television station of the
motion to change venue hearing on November 18, 1986, had the
same impact on the jury population. Miller claims the
District Court abused its discretion in failing to grant the
motion because a reasonable possibility existed that Miller
could not get a fair trial in Jefferson County.
 Section 46-13-203(1), MCA, provides that a defendant
"may move for a change of place of trial on the ground that
there exists in the county in which the charge is pending
such prejudice that a fair trial cannot be had in such
county." A defendant, who is seeking a change of venue on
the grounds of prejudicial publicity, must prove two
elements: (1) he must show that the news reports complained
of were inflammatory; and (2) he must show that the
publication or articles actually inflames the prejudice of
the community to an extent that a reasonable possibility
exists that he may not receive a fair trial. State v.
Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832; see,
State v. Bashor (1980), 188 Mont. 397, 403-407, 614 P.2d 470,
474. As we said in Ritchson, the first test focuses on the
nature of the publicity while the second focuses on the
effect.
Upon review, we look not to the amount of publicity but
rather to whether the publicity is of sufficient inflammatory
nature to generate a widespread belief among the community of
guilt. This inflammatory nature must be proven by the
defendant who alleges denial of a fair trial. See, State v.
Holmes (1983), 207 Mont. 176, 181, 674 P.2d 1071, 1073; State
v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324.
Denial of a motion for change of venue is not
reversible error in the absence of an abuse of discretion by
the trial court. State v. Smith (Mont. 1986), 715 P.2d 1301,
1309, 43 St.Rep. 449, 458; State v. Kirkaldie (1978), 179
Mont. 283, 587 P.2d 1298. We stated the proof required for a
court to change venue as follows:
A defendant seeking a change of venue
must show that there is reasonable
grounds to believe that a prejudicial
atmosphere exists within the present
venue which creates a reasonable
 apprehension that he cannot receive a
fair trial.
Ritchson, supra, 199 Mont. at 54, 647 P.2d at 832; State v.
Link (Mont. 1981), 640 P.2d 366, 368, 38 St.Rep. 982, 985.
Miller did not reach this burden of proof and the District
Court did not abuse its discretion in denying his motion.
Miller's motion was supported by his counsel's
affidavit stating facts in support of alleged prejudice.
These facts included the following statements: (1) that the
population of Jefferson County was so limited that it was
"virtually impossible" to pick a jury that was not either
acquainted or familiar with the Duffys; (2) that the crime
was subject to substantial and continuing media coverage such
that "it can be reasonably apprehended that a fair trial in
Jefferson County cannot be had;" and (3) that the attached
articles to the affidavit went beyond objective dissemination
of information.
Review of the articles shows that the majority of the
national papers were largely concentrating on the victims'
famous son, Patrick Duffy, of the television program
"Dallas." The local publications contained factual reports
of information gathered from law enforcement officials, that
was limited and accurate, or from court records that were
public knowledge. The reports were factual, contained no
editorializing and could not have served to inflame the
prejudice of the community. State v. Dryman (1954), 127
Mont. 579, 581-583, 269 P.2d 796, 797-798.
The affidavit was conclusory in nature and failed to
show a connection between any inflammatory articles and
possible prejudice of the community. Mere allegation of
inflammatory material is insufficient if the second
requirement enunciated in Ritchson, supra, is not proven,
e.g., that the articles actually inflamed community prejudice
to such an extent that a fair trial was impossible.
The defense made no inquiry at voir dire as to whether
any of the jurors had been influenced by the articles. There
was nothing established in voir dire to show the existence of
the "indicia of prejudice" we have required to support a
motion for a change of venue. See, State v. Armstrong
(1980), 189 Mont. 407, 423, 616 P.2d 341, 350; State v. Board
(1959), 135 Mont. 139, 143, 337 P.2d 924, 927.
At voir dire a number of jurors admitted knowing some
witnesses. Miller argues that People v. Tidwell (Cal. 1970),
473 P.2d 748, supports his contention where witnesses are
known by the jury that this interferes with the defendant's
right to a fair trial. However, Tidwell is easily
distinguishable in that there was press exposure based on
"investigating officers [keeping] the press and hence the
public, apprised of virtually every step in the progress of
their investigation." Tidwell, supra, 473 P.2d at 750.
Further, one-third of the twelve-person jury knew one or more
of the homicide "victims." In this case, all four of the
prospective jurors who knew the Duffys were removed by
peremptory challenge. At any rate, " [klnowledge on the part
of jurors is not sufficient and cannot be equated with
prejudice." Smith, supra, 715 P.2d at 1309.
We have approved of the use of voir dire to demonstrate
prejudice. State v. Nichols (Mont. 1987), 734 P.2d 170, 174,
44 St.Rep. 382, 387. And in Holmes, supra, where all the
jurors claimed they had heard of the defendant, but only two
people were removed because they expressed prejudice, we held
that the District Court had not abused its discretion in
denying a motion for a change of venue.
We note that voir dire is not the sole method to be
employed to determine whether prejudice exists. Paisley,
supra, 663 P.2d at 324; State ex rel. Coburn v. Bennet
(1982), 202 Mont. 20, 32-33, 655 P.2d 502, 508. However,
where no connection is made of inflammatory media coverage
and an excessive community prejudice, e .g. , through the use
of surveys, voir dire is an appropriate arena where prejudice
can be demonstrated.
Where the District Court has appropriately granted a
change of venue, the connection between inflammatory news
reports and the actual inflaming of community prejudice has
been shown. In Paisley, supra, we held that the court
appropriately granted a change of venue motion where a
written report of a criminologist who surveyed the
community's registered voters' opinions was submitted and
there was extensive editorializing by the local newspaper
against the defendant.
Miller argues that federal courts only require a
showing of publicity that "so pervades the proceedings as to
create a 'carnival atmosphere'" and defendant does not have
to show identifiable prejudice. Sheppard v. Maxwell (1966),
384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas
(1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rideau
v. State of Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10
L.Ed.2d 663. We note that these cases involved significantly
more proof of prejudice, including opinion polls, than was
presented by Miller in this case.
The standard asserted by Miller presumes prejudice by
pretrial publicity without requiring actual proof. Coleman
v. Zant (11th Cir. 1983), 708 F.2d 541, 544. It has long
been the law of this state that prejudice in a criminal case
will not be presumed, but must appear from the denial or
invasion of a substantial right from which the law imputes
prejudice. State v. Steffans (1981), 195 Mont. 395, 636 P.2d
836; State v. Bubnash (1963), 142 Mont. 377, 382 P.2d 830.
 Limitation of Character Evidence Pertaining to Wentz
Miller claims that the District Court erred in
disallowing Miller from presenting evidence of Wentz's
character through the testimony of Chester Richey, who worked
with both Miller and Wentz. Miller relies on Rule 404(c),
M.R.Evid., which states:
Evidence of a person's character or a
trait of his character is admissible in
cases in which character or a trait of
character of a person is an essential
element of a charge, claim, or defense.
This rule has not been interpreted by this Court and has no
federal counterpart. Statements in the Commission Comments,
Rule 404, M.R.Evid. are of no assistance.
Miller asserts the evidence to be solicited from Richey
would impeach Richey's statement that he was not "frightened"
of Wentz, and would expose the inaccuracy of a number of
other statements made by Richey. Upon review of the record,
we note that the District Court allowed Miller to make an
offer of proof. Counsel for Miller stated that he was going
to present two statements involving Wentz's claim "about
shooting niggers" and a comment that Wentz "was going to use
the shotgun to blow trees out of the ground."
An offer of proof allows counsel the ability to get
evidence on the record where the court determines that it
should be excluded. "In case the ruling is one excluding
evidence, the substance of the evidence [is] made known to
the court by offer or [is] apparent from the context within
which questions [are] asked. " Rule 103 (a) (2), M. R.Evid. An
offer of proof should be specific as to the facts to be
proven. Palmer v. McMaster (1891), 10 Mont. 390, 25 P. 1056.
A trial court cannot commit error without the arguing party
informing the court that a specific course of action is
legally improper. There is no statement by Miller here as to
what facts were to be proven or that an alternative manner
would be less objectionable.
The statements that Miller attempted to present to the
jury were cumulative in that they came out in various forms,
direct and indirect, throughout the trial after Richey
testified. There was testimony presented through a police
officer, defendant's witness Dave Johnson and through
cross-examination of Wentz himself that Wentz was a member of
the Arayan Brotherhood, a white supremacist organization.
Although not allowed to impeach Richey directly on the stand
at the time he wanted, Miller could have recalled the witness
in his case-in-chief and presented the evidence once the
compulsion defense was before the jury. Any error, defect,
irregularity, or variance which does not affect substantial
rights shall be disregarded. Section 46-20-701 (2), MCA. A
review of the record shows the court's exclusion was not
reversible error. State v. Gould (Mont. 1985), 704 P.2d 20,
30, 42 St.Rep. 946, 956; McGuinn v. State (1978), 177 Mont.
215, 223, 581 P.2d 417, 422; State v. Romero (1968), 161
Mont. 333, 341-342, 505 P.2d 1207, 1211-1212.

Motion to Dismiss
Miller claims the District Court erred in denying his
motion to dismiss Counts I and I1 dealing with purposely or
knowingly killing the Duffys which he was required to defend
but for which the jury found him not guilty. He further
claims the court erred in denying his motion to dismiss in
regards to Counts 11, IV and V dealing with the deliberate
homicide charges under the felony murder rule and robbery for
which he was convicted. Miller's final claim at this
juncture is the District Court erred in not granting his
motion to dismiss Count VI on the issue of accountability for
felony assault.
 All of Miller's contentions are based on a claim of
insufficient evidence to support the State's case. Section
46-16-403, MCA, which deals with motions to dismiss or
directed verdicts shows that it is within the District
Court's discretion whether to dismiss an action at the close
of the State's case. State v. Longneck (19821, 201 Mont.
367, 373, 654 P.2d 977, 981; State v. White Water (Mont.
1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666. The
District Court's ruling will only be disturbed on appeal
where an abuse of discretion is shown. State v. Smith
(1980), 187 Mont. 245, 250, 609 P.2d 696, 698, overturned on
other grounds, 685 P.2d 918. In construing the statute, the
motion to dismiss is conditioned upon "insufficient evidence"
to support a finding of guilty. The motion "should be
granted only where there is no evidence upon which a trier of
fact could base a verdict." State v. Matson (Mont. 19871,
736 P.2d 971, 974, 44 St.Rep. 874, 877, citing State v. White
Water, supra, 634 P.2d at 638.
In State v. Roberts (1981), 633 P.2d 1214, 1218-1219,
38 St.Rep. 1551, 1556, we quoted the language of Jackson v.
Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61
L.Ed. 2d 560, 573, to set out the required standard for
sufficient evidence stating:
[Tlhe relevant question is whether after
viewing the evidence in the light most
favorable to the prosecution, any
rational trier of fact could have found
the essential elements of the crime
beyond a reasonable doubt.
Miller argues that insufficient evidence was presented to
support any of the above stated Counts. We disagree and find
that the District Court did not abuse its discretion in
denying the motions to dismiss.
 Miller argues no corroborating evidence existed and
therefore Wentz's testimony, that especially connected Miller
with the deliberate homicide of the Duffys, should not have
been admitted because Miller claims no reasonable person
could have found Miller purposely or knowingly killed either
Duffy. Section 46-16-213, MCA, states that a conviction
cannot be had on the testimony of one responsible or legally
accountable for the same offense (5 45-2-301, MCA, defines
accountability) unless corroborating testimony, which is not
sufficient if it merely shows commission of the offense or
the circumstances, is presented. " [C]orroboration is
sufficient if, 'unaided by the testimony of an accomplice, it
tends to connect the defendant with the commission of the
offense. ' " State v. Morse (Mont. 1987), 746 P.2d 108, 113,
44 St.Rep. 1919, 1926, citing, State v. Gonyea (Mont. 1987),

Whether evidence is sufficient to
corroborate the testimony of an
accomplice is a question of law. The
evidence must show more than the fact
that a crime was committed. It must
raise more than a suspicion concerning
defendant's involvement in the crime.
However, it need not be sufficient, on
its face, to support a prima facie case
against defendant. State v. Kemp (19791,
182 Mont. 383, 386-387, 597 P.2d 96, 99.
The evidence need only "tend to connect"
defendant with the crime. State v.
Mitchell (Mont. 1981), 625 P.2d 1155,
1158, 38 St.Rep. 487, 489-490. Further,
the evidence may be circumstantial and it
may come from the defendant or his
witness.
State v. Cain (Mont. 1986), 718 P.2d 654, 656, 43 St.Rep.

The jury was presented with ample corroborating
evidence connecting Miller to the Duffy murders and the
felonious assault at the Wortman residence prior to the
testimony of Wentz.
Miller and Wentz were seen together a number of times
by numerous individuals on November 18, 1986. They were
together when Wentz picked up his shotgun. They were
identified by the bartender at Ting's bar in Jefferson City.
They were seen shortly thereafter at the Lounge bar in
Boulder. Bill Wortman identified Wentz as being on their
property and the testimony of the Wortmans' connected
Miller's car to that activity. Officer D.D. Craft,
responding to the Wortmans' call, identified a white
Volkswagen heading towards Boulder. Boulder Police Chief
Sullivan saw a white Volkswagen parked outside the Lounge
shortly after 9:15 p.m. that evening. Gunshots were heard by
Fred May, an employee at the Montana Developmental Center in
Boulder, at approximately 9: 30 to 9:45 p.m. as he walked to
work. Julie Sampson, a nurse at the Montana Development
Center, noticed a white Volkswagen parked in front of the
Lounge with its driver's side door open at approximately the
same time.
Miller and Wentz were together at the local car
dealership in Helena where they broke in and left in a Jeep
and pickup. Miller was seen driving the Jeep that was later
abandoned at Zig's Car Wash. He was observed at this time
following a black Chevrolet pickup which matched the
description of the vehicle Wentz was driving. The operative
word here being "following" Wentz. Miller attempted to keep
Wentz quiet about any of the night's events at Tarnmy
Harding's apartment. Miller also made statements to the
extent that the two should blow up the stolen vehicles.
Chester Richey identified Miller and Wentz together
when the two returned to the local car dealership to get
Miller's Volkswagen. After returning to Harding's residence,
where Miller was again seen "following" Wentz, the two fled
when they noticed a police officer. After finally being
stopped by the Helena police, Miller portrayed, not someone
under compulsion to commit crimes, but a person who had no
idea why he was stopped. The arresting officer saw no sign
of force or intimidation exercised by Wentz over Miller.
Miller told the arresting officer that he had no knowledge
about the Jeep keys found under his body. At the Lewis and
Clark County Jail, Miller stated he had never been to Boulder
and asked again why he was detained.
All of this evidence, although it does not create a
prima facie case against Miller, tends to connect him with
the charged crimes. Miller argues that State v. Bradford
(Mont. 1984), 683 P.2d 924, 41 St.Rep. 962, stands for the
proposition that "mere presence is not enough to prove
accountability." This characterization of Bradford is only
partially accurate. The actual quote of this case is:
Although mere presence at the scene of a
crime is not enouqh to establish
accountability, - ac&used need not take
the
- active - -in anv overt criminal acts
an art
to - adjidged crimrnally liable - -
- be for the
acts. [Citing, State v. Hart (Mont.
19811, 625 P.2d 21, 38 St.Rep. 1331.
-
(~m~hasis added. )

Bradford, supra, 683 P.2d at 930.
The above cited corroborative evidence shows the jury
could infer that Miller was involved in the crimes at the
Lounge and the Wortmans'. It also shows the jury could find
Miller had opportunity to escape from any force or
intimidation of Wentz numerous times but instead acted in
concert. The corroborative evidence shows that Miller and
Wentz could have acted in concert in the felonious assault of
Billy Wortman, in the robbery and murder of the Duffys, and
even, although the jury did not so find, that Miller had the
opportunity and motive to purposely and knowingly commit
deliberate homicide.
The State admits that much of the evidence connecting
Miller with the various charges was circumstantial but we
have held numerous times that circumstantial evidence is
sufficient to support a conviction. Roberts, supra, 633 P.2d
at 1218; State v. Johnson (1982), 197 Mont. 122, 127, 641
P.2d 462, 465-466; State v. Fitzpatrick (1973), 163 Mont.
220, 225, 516 P.2d 605, 609. However, in this instance, as
"[wle stated in Fitzpatrick, supra, that to justify a
conviction in a case based solely on circumstantial evidence,
the facts and circumstances must not only be entirely
consistent with the theory of guilt, but must be inconsistent
with any other rational (reasonable) conclusion." State v.
Lucero (Mont. 1984), 693 P.2d 511, 513, 41 St.Rep. 2509,
2511-2512.
With this statement that the evidence must be
inconsistent with any other reasonable conclusion, we must
look to the jury's verdict and the additional evidence
presented. Once the corroborative evidence was presented,
Wentz recited a version of the story much different from
Miller's. Under Wentz's story, Miller could possibly have
been convicted under Counts I and I11 for purposely and
knowingly killing the Duffys. There was also substantial
scientific evidence that was submitted that further supported
the fact that the shotgun had chambered and ejected shells
found at the Helena car dealership, the Lounge and the
Wortmans' residence. Blood stains on Miller's pants matched
the blood of Terrance Duffy. Various glass fragments from
the Lounge and the car dealership were found on Miller's
person.
 The jury convicted Miller of deliberate homicide under
the felony murder rule meaning they did not believe FJentz's
version of the crime.
As this Court has held many times over,
the jury is the fact finding body in our
system of jurisprudence, and its decision
is controlling. The jury is free to
consider all the evidence presented and
to pick and choose which of the witnesses
it wishes to believe. If sufficient
testimony was introduced, as well as
exhibits to justify the jury's findings,
then its conclusions will not be
disturbed unless it is apparent there was
a clear misunderstanding by the jury or
that there was a misrepresentation made
to the jury.
Lucero, supra, 6 9 3 P.2d at 5 1 3 .
There is an absence of misunderstanding on the part of
the jury and no misrepresentation is alleged by Miller. As
the State appropriately points out, it submitted over 1,100
pages of testimony elicited from 3 1 separate witnesses and
over 1 0 0 exhibits. The jury was free to pick and choose to
believe any or all of this material. Sufficient evidence was
submitted to support the District Court's denial of the
motions to dismiss at the close of the State's case-in-chief.

Failure to Comply With Discovery
In anticipation of codefendant Wentz taking the stand,
counsel for Miller commissioned a private investigator to
prepare a report to be used for impeachment during
cross-examination. Although the defense was to provide "a
list of all papers, documents, photographs, and other
tangible objects which the defendant [planned to] use at
trial either as evidence or as a source of impeachment,"
counsel failed to provide the State with the private
investigator's report. The District Court refused to permit
counsel to examine Wentz with the information contained in
the report. Miller contends the investigator's report was
attorney work product within the meaning of S 46-15-324, MCA,
and therefore not subject to disclosure. We disagree.
The work product doctrine is a qualified evidentiary
privilege which reflects the actualities of an adversarial
system by extending limited protection to an attorney's
efforts on behalf of a client. Hickman v. Taylor (1947), 329
U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451. " ~ t
its core, the
work product doctrine shelters the mental processes of an
attorney, providing a privileged area within which he can
analyze and prepare his client's case." United States v.
Nobles (1975), 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45
L.Ed.2d 141, 154. The reality of our legal system demands
that the embraces of the protection also extend to agents of
the attorney. However, the privilege is not inviolate.
State ex rel. Carkulis v. District Court (Mont. 1987), 746

Nor is the scope of the work product doctrine so broad
as to encompass substantial evidence.
There is no doubt that if an attorney
uses at trial a statement he obtained and
prepared in anticipation of litigation in
interrogating or cross examining a
witness, the full statement, even though
work-product, must be produced at the
demand of the other side. [Citation
omitted.] By the use of the statement at
trial, the attorney has waived the work-
product protection, since the material in
the statement has become substantive
evidence.
Carkulis, 746 P.2d at 613-614. Counsel's election to use the
material contained within the investigator's report clearly
constituted a waiver of the work product privilege. His
attempt to label the report "impeachment material" is not
sufficient to escape discovery. See Hickman, supra,
(recognizing that impeachment and corroboration material is
subject to discovery).
In a related argument, Miller contends discovery
applies only to exhibits. However, contrary to Miller's
assertion, there is no indication that Montana's discovery
statutes were designed to limit disclosure to exhibits.
Section 5 46-15-323(4), MCA, provides for production of
papers and documents "which he will use at trial," not merely
those documents that will be offered as exhibits. Consistent
with the goal of achieving justice, Montana's discovery
scheme has inherently rejected the theory of trial by ambush.
See, State v. Waters (Mont. 1987), 743 P.2d 617, 44 St.Rep.
705. The purpose of a criminal trial is to ascertain the
truth. This aim is best realized through full disclosure and
presentation of the evidence, not surprise attacks.
The investigator's report fell within the scope of
5 46-15-323, MCA, and the State's discovery request. As
such, the report should have been provided to the State. The
District Court properly prohibited use of the report.

Denial of Defendant's Exhibit I
The District Court denied Miller's Exhibit I which
included diagrams and a written rendition by Miller of his
version of the crimes. The State objected to the
introduction of the document on the basis that it created
"undue influence" on the jury. Miller claims the document
was presented to show that his story was consistent with the
stories he related in November and December of 1986 and
showed that Miller did not "concoct" his version. The
District Court denied admission of the document. Miller
claims this was error.
 The State did not object to the examination of Miller
in regard to the story, nor did it object to any of the
subject matter. However, the State did object to the
introduction of the exhibit. The version set out on the
document was presented once by Miller on the stand. It was
then repeated a second and third time by Lorna and Judy
Miller.
Miller was examined thoroughly by defense counsel and
the recitation of his version was we11 before the jury.
Further, defense counsel made it clear to the jury that the
account was the same as Miller told him in December.
The court was informed by the State that to allow the
document to go before the jury caused undue emphasis because
it was like "[transcribing] the statements of every witness
who testifies [to] have the jury look at them." In essence,
the District Court limited repetitious testimony.
In State v. Brietenstein (1979), 180 Mont. 503, 591
P.2d 233, we held that the trial court did not abuse its
discretion by excluding repetitious testimony under Rule 403.
In State v. Short (Mont. 1985), 702 P.2d 979, 42 St.Rep.
1026, we upheld the court's exclusion of tapes that were
merely cumulative. Citing, 31A C.J.S. Evidence, § 166.
Miller was allowed to inform the jury that his testimonial
rendition was consistent. No substantial right of Yiller was
affected by the court's disallowance of this document. Rule
103, M.R.Evid.

Sufficient Evidence to Support the Jurv--- Verdict
2

Miller contends the jury's verdict was not supported bv
substantial and credible evidence because, again, the only
evidence showing Miller was involved in the robbery was the
uncorroborated testimony of Wentz. Our discussion of the law
and facts under the motions to dismiss issue demonstrates
Wentz's testimony was not the only evidence connecting Miller
to the crimes charged.
The "test of evidence sufficient to warrant a directed
verdict of acquittal [Miller's relief requested under the
motions to dismiss issue] is the same as the test of
sufficiency of evidence on appeal, i.e. whether, viewing the
evidence in the light most favorable to the State,
substantial evidence exists to support a verdict of guilty."
State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079,
1085. We will not invade the province of the jury when they
are presented with varying stories. "[Wlhere the evidence is
conflicting or doubtful, either as to [whether the witness
for the State is an accomplice] or as to corroboration, the
court should not invade the province of the jury." State v.
Gonyea, supra, 730 P.2d at 426; citing, State v. Smith
(1925), 75 Mont. 22, 27, 241 P. 522, 523. The test we apply
to determine whether the jury's verdict is supported by
sufficient evidence is whether, after viewing the evidence in
a light most favorable to the prosecution, any rational trier
of fact, the jury could have found the requisite elements
beyond a reasonable doubt. State v. McHugh, (Mont. 1985),
697 P.2d 466, 469, 42 St.Rep. 371, 374. We conclude the
evidence presented, corroborating, circumstantial and direct,
was sufficient to support the jury's verdict. This evidence
is more thoroughly described above in our discussion on the
motions to dismiss.

Sentencing
The District Court sentenced Miller to a term of 75
years for his involvement in the murder of Terrance Duffy; 75
years for his involvement in the murder of Marie Duffy; and
20 years for robbery of the Duffys' bar, each term to be
served consecutively. Miller contends that the imposition of
consecutive terms in connection with a single "episode" of
criminal behavior violates the intent of S 46-18-401(4), MCA.
Miller does not contest the 10 year sentence he received for
felony assault by accountability because it was not a part of
this "episode." Such an interpretation is in stark contrast
to the plain language of the statute, however.
Although the compiler's comments suggest that
concurrent sentences are generally favored, S 46-18-401(4),
MCA, provides that "separate sentences for two or more
offenses shall run concurrently unless the court otherwise
orders." On its face, the statute clearly vests the District
Court with the discretion to impose consecutive terms
regardless of whether the criminal acts arose out of a single
episode of misconduct. It has long been recognized that when
interpreting a statute,
[Tlhe intention of the legislature must
first be determined from the plain
meaning of the words used, and if
interpretation of the statute can be so
determined, the courts may not go further
and apply any other means of
interpretation.
Murphy for L. C. v. State (Mont. 1987), 748 P.2d 907, 908, 44
St.Rep. 2030, 2032; State v. Hubbard (1982), 200 Mont. 106,
111, 649 P.2d 1331, 1333; Dunphy v. Anaconda Co. (1968), 151
Mont. 76, 438 P.2d 660. We find the District Court acted
within its discretion.
Miller also contends the District Court improperly
designated him a dangerous offender for purposes of parole
eligibility. Under Miller's reading of S 46-18-404(1), MCA,
a sentencing court must find that a defendant has been
convicted of a crime for which a sentence in excess of one
year could have been imposed and he must also represent a
substantial danger to society before the court can impose a
dangerous offender designation. This position is in effect,
that a defendant who has not committed a felony within the
preceding five years - is not a danger to society is
or
entitled to a nondangerous designation. Again, we find such
a construction at odds with the plain language the
legislature chose to employ.
The legislature, in enacting a law, is presumed to have
understood the ordinary and elementary rules of construction
of the English language. State ex rel. Palagi v. Regan
(1942), 113 Mont. 343, 126 P.2d 818. The statute in
question, S 46-18-404(1), MCA, provides:
(1) The sentencing court shall designate
an offender a nondangerous offender for
purposes of eligibility for parole under
part 2 of chapter 23 if:
(a) during the 5 years preceding the
commission of the offense for which the
offender is being sentenced the offender
was neither convicted of nor incarcerated
for an offense committed in this state or
any other jurisdiction for which a
sentence to a term of imprisonment in
excess of 1 year could have been imposed;
and
-
(b) the court has determined, based on
any presentence report and the evidence
presented at the trial and the sentencing
hearing, that the offender does not
represent a substantial danger to other
persons or society. (Emphasis added. )
The legislature's use of the conjunctive "and" clearly
indicates an intent to establish two mandatory prerequisites
to a nondangerous designation: (1) lack of a felony
conviction within the preceding five years; - (2) a finding
and
that the defendant does not present a substantial danger to
society. The court's duty is "simply to ascertain and
declare what is in terms or in substance contained [within a
statute] .' Section 1-2-101, MCA.
I We will not insert the
disjunctive "or" when the legislature chose to employ the
conjunctive "and." Such is not the function of this Court.
We hold the District Court correctly applied S 46-18-404,
MCA.
In Miller's tenth issue he contends he should be
eligible for parole in 171 years under 5 46-23-201 (1)(a),
MCA. We have no record before us regarding the determination
of parole eligibility for Miller. No argument concerning
this issue occurred at the lower court level. Issues raised
for the first time on appeal are untimely and will not be
addressed by this Court. Section 46-20-104(2), MCA; State v.
Probert (Mont. 1986), 719 P.2d 783, 43 St.Rep. 988; State v.
Van Haele (1983), 207 Mont. 162, 675 P.2d 79.

Motion for New Trial
Miller finally contends that the District Court erred
in denying his motion for a new trial based on written
statements submitted by Wentz to Miller's counsel in June of
1987 that exculpate Miller of the crimes. At the hearing on
the motion for a new trial on July 13, 1987, Wentz invoked
his Fifth Amendment rights and refused to testify. The court
disallowed the letters ruling they were hearsay evidence.
However, the District Court did exercise circumspection and
stated the following in its memorandum attached to the order
denying the motion:
The Court holds that the WENTZ notes are
hearsay and are not admissible under the
cited exceptions (Mont.R.Evid. 804). The
WENTZ statements clearly fail the test of
credibility and trustworthiness and are
blatantly self-serving. Since MILLER'S
conviction is on appeal, the Supreme
Court will have the opportunity to pass
upon the admissibilty of the WENTZ
hearsay.
 Assuming, however, -- WENTZ hearsay
that the
was admissible. the Court still would
-
have denied the request for a new trial.
This Court is not going to void a jury
verdict, based on a nine-day trial,
involving some fifty witnesses and over
one hundred exhibits. One of the
witnesses was MILLER himself, and much of
his testimony was unbelievable, being
contradicted by the physical evidence and
common sense and his own reputation for
truth and veracity. (Emphasis added.)
The District Court went on to state that Wentz's
statements contained no credibility and that Wentz's "dog
wouldn't believe him." The court further pointed out that
the circumstances surrounding the drafting of the letters was
suspect because Wentz and Miller had opportunity to
communicate with each other in prison and Wentz's "insatiable
appetite for the limelight" could have been the motivating
reason for the letters. The court stated the jury did not
"believe" Wentz's story as evident by the verdict and to
allow for a new trial would be an abuse of discretion on the
court's part. Finally, the court noted that Miller's
veracity was questionable because of his violation of the
sentencing requirements that he not attempt to gain
financially from the events. This statement was in regard to
a letter Miller wrote to a national tabloid in which Miller
proposed to sell his story.
The court closed with the statement:
This Defendant's conduct, together with
his prison liaison with WENTZ for the new
trial strategy makes a mockery of his
characterization of himself as an
unwitting, innocent, misled and compelled
victim in the events of November 18,
1986.
 The jury properly rejected that
characterization when it found him guilty
of assault, robbery and a participant in
a double homicide. It would be the
epitome of judicial arrogance to disturb
that verdict on the "new evidence"
offered, even if that evidence were
admissible, which it is not.
Miller's claim of error is based on two propositions.
First, that the District Court erred in disallowing the
letters because the Rules of Evidence do not apply in a
hearing on a motion for a new trial because it is a summary
proceeding. Secondly, Miller argues the guidelines for a new
trial, set out in State v. Greeno (1959), 135 Mont. 580, 342
P.2d 1052, were not considered by the court.
Initially, we note exclusion of the two letters by the
District Court on the grounds of hearsay was error. However,
it was not error on the grounds asserted by Miller. Where a
witness pleads the Fifth Amendment and refuses to testify, he
is considered unavailable. Rule 804(a) (I), M.R.Evid. This
rule is identical to the Federal Rules of Evidence
counterpart. The witness unavailable exception to the
hearsay rule should have been applied by the District Court.
See, U.S. v. Thomas (5th Cir. 1978), 571 F.2d 285, 288. A
similar rule has also been applied by this Court. See,
Sarsfield v. Sarsfield (1983), 206 Mont. 397, 407-408, 671
P.2d 595, 601.
Nonetheless, we find this to be harmless error in light
of the court's explanation that a new trial would not be
granted even if the material was not hearsay. Technical
errors or defects in rulings on evidence in criminal
prosecutions are not grounds for reversal, and in order to
allow reversal, the ruling must affect substantial rights.
Rule 103, M.R.Evid.; State v. Daniels (Mont. 1984), 682 P.2d
173, 41 St.Rep. 880; State v. Coleman (1978), 177 Mont. 1,
579 P.2d 732, appeal after remand, 185 Mont. 299, 605 P.2d
1000, cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d
1177. Further, Miller did not specifically object to the
denial of the letters as an exception to hearsay because the
witness was unavailable so the District Court was unable to
consider this technical defect.
As to Miller's second claim that Greeno, supra, was not
properly considered we note that S 46-16-702, MCA, provides
that the District Court may grant a new trial "if required in
the interest of justice." Miller's motion was based on "new
evidence" sent to Miller's counsel and properly presented to
the District Court. The new evidence presented by Miller was
not available at the time of the original trial and therefore
no opportunity existed for its presentation.
Where the District Court is faced with a determination
of the appropriateness of a new trial based on newly
discovered evidence, the following requisites must be met:
(1) .. . the evidence must have come to
the knowledge of the applicant since the
trial;
(2) that it was not through a want of
diligence that it was not discovered
earlier;
(3) - -it is so material - -it would
that - that
robably produce a different result upon
znother trial; (Fmphasis added.)
State v. Pease (Mont. 1987), 740 P.2d 659, 665, 44 St.Rep.
1203, 1210; citing Greeno, 342 P.2d at 1055.
The material presented meets the first two enunciated
tests. However, from a review of the evidence presented in
the initial trial, the lack of veracity of both Miller and
Wentz, and the District Court's ruling that even if
presented, he would not grant a new trial, we find that the
District Court did not abuse its discretion in denying the
new trial.
The District Court considered Wentz an unbelievable
witness. The jury's verdict indicates they also did not
believe Wentz. In State v. Cannon (Mont. 1984), 687 P.2d
705, 712, 41 St.Rep. 1659, 1667, we affirmed the court's
denial of a new trial based on new evidence because the
evidence presented "an additional inconsistency for
consideration by the jury."
This is a similar situation. Is the jury to believe
Wentz's statements to police officers upon arrest? Is the
jury to believe Wentz's statements at the original trial? Is
the jury to now believe Wentz's statements in the letters
drafted after his introduction to prison society where he had
opportunity to converse with Miller? The inconsistency is
apparent and the submission of these letters cannot be said
to be so material as to change the outcome of the jury's
verdict in light of Wentz's lack of veracity.
Upon review of the evidence, the record, and the
three-factor test enunciated above, although not specifically

of
referred to by the District Court in name but applied in
practice, we conclude the District Court did not abuse its
discretion in denying the motion for a new trial.
The jury verdict and judg7;
sentence are affirmed.
-

P
Justic

We concur: -(
I
 .cZ.G\m r a c c P
The Honorable C. B. McNeil,
District Judge, sitting for
Mr. Justice John C. Sheehy

~ist2ic-kJudge, sitting for
Mr. Justice William E. Hunt