No. 90-180
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ALLEN RAY "SPEEDY" MATT,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Polson, Montana
For Respondent:
Marc Racicot, Attorney General, Helena, Montana;
Patricia Schaeffer Jordan, Assistant Attorney
General, Helena, Montana; Larry Nistler, County
Attorney, Polson, Montana; Robert S. Anderson,
Deputy County Attorney, Polson, Montana
Submitted on briefs: August 23, 1990
Decided: October 25, 1990
Filed:
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Allen Ray Matt appeals from the judgment of the Twentieth
Judicial District, Lake County. Following trial and conviction for
the offenses of domestic abuse, third offense and tampering with
a witness, Matt was sentenced to five years, with two years
suspended and ten years with five years suspended. The District
Court further ordered these terms to be served consecutively and
designated Matt a dangerous offender for purposes of parole. We
affirm.
The issues we find pertinent to our review are:
1. Whether the State improperly introduced evidence of other
crimes, wrongs and acts of Matt;
2. Whether the State violated the District Court's discovery
order or intentionally suppressed evidence;
3. Whether the information was insufficient to give Matt
notice of the charges against him;
4. Whether Matt was subjected to double jeopardy on the
charge of domestic abuse;
5. Whether the evidence was insufficient to support a verdict
of guilty for the offense of tampering with a witness;
6. Whether there was cumulative error in the proceedings and
trial against Matt.
The offenses which are the subject of this appeal arose out
of prior incidents of domestic abuse which involved Matt, and the
principle witness, Violet Weaselhead. Apparently Matt and
Weaselhead were engaged to be married. However, after some
2
1 1
I .
disagreements, Matt assaulted Weaselhead on April 30 and May 1,
1989. Matt was convicted of these offenses in Justice Court on
July 18, 1989.
On May 2, 1989, following his arrest for domestic abuse, Matt
went to Weaselhead's home. They then entered into a discussion
about their relationship, which became heated. According to the
record, Matt became angry and struck Weaselhead on the side of the
head. Apparently, he also threatened her in the event she
testified against him for the prior incidents of domestic abuse.
Following this incident, Matt was arrested and charged with
domestic assault and tampering with a witness. After his
conviction on the two prior domestic abuse cases, the prosecutor
amended the information to change the offense of domestic abuse to
domestic abuse, third offense, a felony.
Prior to trial, Matt submitted a motion in limine to prevent
the introduction of any evidence of his prior two convictions into
evidence. This motion was granted, to the extent that the evidence
could not be used to prove intent to commit or a pattern of
domestic abuse. However, the District Court did allow the State
to introduce evidence that a charge had been filed and that Matt
knew that a complaint had been filed against him for the limited
purpose of proving the offense of tampering with a witness.
Following trial and conviction, the District Court sentenced
Matt to five years with two years suspended for the offense of
domestic abuse. It also sentenced Matt to a term of ten years,
with five years suspended for the offense of tampering with a
witness. The District Court ordered these terms to be served
consecutively and designated Matt a dangerous offender. This
appeal followed.
Matt argues that the State improperly introduced evidence of
his two prior convictions for domestic abuse. According to Matt,
the State, in violation of the procedures set forth in State v.
Just (1979), 184 Mont. 262, 602 P.2d 957 and the District Court's
order, improperly introduced evidence of Matt's two prior
convictions. He further argues that the State's conduct prevented
him from preparing his defense, because the introduced evidence was
unexpected and no warning was given of its possible introduction.
Section 45-7-206 (I), MCA, outlines the elements which must be
proven by the State in order to obtain a conviction for the offense
of tampering with a witness. The statute states:
A person commits the offense of tampering with witnesses
and informants if, believing that an official proceeding
or investigation is pending or about to be instituted,
he purposely or knowingly attempts to induce or otherwise
cause a witness or informant to:
(a) testify or inform falsely;
(b) withhold any testimony, information, document, or
thing;
The clear language of the statute requires the prosecution to
prove that Matt knew an Itofficialproceeding or investigation was
pending or about to be instituted" and that he purposely or
knowingly attempted to induce Violet Weaselhead to withhold
testimony at his upcoming trial for domestic abuse. In order to
establish these elements, it was necessary to prove that Matt knew
these charges were pending against him and that Weaselhead would
be a witness at his trial.
Recognizing this, the District Court allowed evidence of the
pending charges to be introduced into evidence. It strictly
limited its use, however, and only allowed its introduction for the
purpose of proving the elements of tampering with a witness. The
District Court forbade the prosecution from using the evidence to
establish any proof of the domestic abuse charge. In order to
accomplish this goal, the State was precluded from introducing any
testimony which would inform the jury of Matt's convictions for
domestic abuse. It was only allowed to introduce evidence that
Matt knew that a complaint had been filed. The State was not
allowed to describe the nature of the crimes involved in the
complaint.
The introduction of this evidence was clearly for the purpose
of proving the elements of tampering with a witness. There is no
indication that it was used to prove the character of Matt. Nor
was it used to establish motive, opportunity, preparation or
absence of mistake. See Rule 404(3) (b), M.R.Evid. Given the
limited purpose of this evidence, the trial court was not required
to comply with the conditions set forth in State v. Just (1979),
184 Mont. 262, 602 P.2d 957.
Matt further argues that the State introduced evidence of
earlier incidents of domestic abuse during other portions of the
trial. We have reviewed the transcript in full and have found that
references to prior crimes were either elicited by Matt's attorney
or were spontaneous comments made during witness testimony. Matt
failed to register an objection to or request the judge to strike
such testimony. We, therefore, find no reversible error in the
introduction of the evidence.
Matt next argues that the State violated the District Court's
discovery order and that the State intentionally suppressed
evidence. In support of this contention, Matt argues that the
State did not supply him with copies of Weaselhead1s police
statement or photographs of her injuries until the eve of trial.
He also argues that the State never provided him with any paperwork
concerning the prior domestic abuse charges. In order to
ameliorate this problem, Matt maintains that the District Court
should have sanctioned the State by either forbidding it from
utilizing the nondisclosed evidence or declaring a mistrial.
The State, on the other hand, argues that it was not required
to provide Matt with any of the evidence. According to 5 46-15-
322(1), the State need only "make available to the defendant for
examination and prod~ction~~ relevant documents.
all The State
maintains it complied with this duty by allowing defense counsel
full opportunity to examine its files. According to the
prosecuting attorney, the files were open Ittoscrutiny by defense
counsel.l1
Apparently, this right was not exercised. However, this fact
cannot form a basis to support Matt's contentions that the State
willfully suppressed evidence or refused to abide by the trial
court's discovery order. There is no evidence that the State
refused any request by defense counsel to examine any relevant
evidence. Accordingly, Matt's contentions on this issue must fail.
Matt next argues that the information was insufficient to
inform him of the charges pending against him. He maintains that
the information did not sufficiently apprise him of the facts
surrounding the charge of tampering with a witness.
We begin our analysis with the observation that the purpose
of an information is to reasonably apprise the person of the
charges against him so that he may have an opportunity to prepare
his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971.
In determining its sufficiency, the test to be applied is whether
a person of common understanding would know what was charged.
State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436.
In order to insure these requirements are met, the legislature
has passed 5 46-11-4Ol()(c), MCA, which provides that an
information shall:
(c) charge the commission of an offense by:
(i) stating the name of the offense;
(ii) citing in customary form the statute, rule, or other
provision of law which the defendant is alleged to have
violated;
(iii) stating the facts constituting the offense in
ordinary and concise language and in such manner as to
enable a person of common understanding to know what is
intended ;
(iv) stating the time and place of the offense as
definitely as can be done; and
(v) stating the name of the accused, if known, and, if
not known, designating the accused by any name or
description by which he can be identified with reasonable
certainty.
The amended information charged Matt with felony tampering
with witnesses under 5 45-7-206(1), MCA. It further alleged:
In the District Court of the Twentieth Judicial District
of the State of Montana, in and for the County of Lake,
on the 25th day of July, 1989, the above-named Defendant
is accused by the Deputy County Attorney of said County
in the name and by the authority of the State of Montana
by this Information, of the offenses of DOMESTIC ABUSE,
Third Offense, a Felony, Count I, as specified in MCA 45-
5-206(1) (a), with punishment as provided in MCA 45-5-
206(3) (fined [sic] not to exceed $50,000 or be
imprisoned in the state prison for a term not to exceed
5 years, or both); and TAMPERING WITH WITNESSES AND
INFORMANTS, a Felony, Count 11, as specified in MCA 45-
7-206 (1), with punishment as provided in MCA 45-7-206 (2)
(imprisoned in the state prison for a term not to exceed
10 years, or be fined not more than $50,000, or both) ,
committed as follows:
COUNT I1
On or about May 2, 1989, near St. Ignatius, Lake County,
Montana, the above-named Defendant, believing that an
official proceeding or investigation was pending or about
to be instituted, purposely or knowingly attempted to
induce or otherwise cause a witness to withhold testimony
or testify falsely, when he threatened Violet Weaselhead
with physical harm if she assisted in the prosecution of
criminal charges against him.
As the above paragraphs make evident, the amended information
named the defendant, cited the statute, recited the statutory name
of the crime, stated the facts of the crime and stated the time and
place of the crime. It clearly met all statutory requirements.
However, Matt claims he was unaware of what charges or
investigation was pending against him and that he was therefore
unable to prepare his defense.
We find this position untenable. The record clearly indicates
that the defendant was arrested on May 1, 1989, for two domestic
abuse charges involving Violet Weaselhead. The information
informed Matt that the witness tampering charge involved threats
against Weaselhead. There is no evidence of any other charges
pending against Matt, which involved Weaselhead. Clearly, enough
information was provided for a person of common understanding to
be put on notice of the offense charged.
IV
On the first day of trial, Matt moved to dismiss the charges
based upon double jeopardy. Prohibitions against double jeopardy
are contained in the Fifth Amendment of the United States
Constitution and Article 11, Section 25 of the Montana
Constitution. The prohibition contained in these provisions
protects a criminal defendant against a second prosecution for the
same offense after acquittal, a second prosecution for the same
offense after conviction and multiple punishments for the same
offense. State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339 revld
on other srounds 481 U.S. 400 per curiam.
Matt argues that he is unsure whether he was tried twice for
the same offense. He maintains that due to the ambiguous nature
of the information, he is unable to determine which domestic abuse
charge was the subject of his trial.
We find no merit in this argument. Matt was charged with two
counts of domestic abuse, one committed on April 30 and the other
committed on May 1, 1989. He was tried and convicted in Justice
Court on these two offenses. He was also charged with domestic
abuse for an incident which occurred on May 2, 1984. This offense
occurred at the same time Matt committed the offense of tampering
with a witness. This third domestic abuse charge was further
distinguished by the fact that it was charged as a felony. It is
clear that Matt was not tried for the same offense twice. The
prohibition against double jeopardy does not protect a defendant
against successive trials on separate counts arising from separate
incidents. Matt's contentions on this issue were therefore
properly dismissed.
Matt next argues that there was insufficient evidence to
support the jury's verdict of guilty on the offense of tampering
with a witness. We disagree. In reviewing a jury verdict, this
Court has adopted the following standard of review:
[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.
See State v. Jackson (1979), 443 U.S. 307, 99 S.Ct. 2781, 61
The elements which must be proven to support a verdict of
guilty for the offense of tampering with a witness are:
1) A person
2:) believing that an official proceeding or investigation is
pending or about to be instituted
2) purposely or knowingly attempts to induce a witness
4:) to withhold testimony.
See 5 45-7-206, MCA.
The evidence introduced during trial established that Matt was
arrested and charged with a crime on May 1. These charges were
still pending on May 2. Weaselhead testified that, as a result of
these charges, Matt told her he was on bail and was not supposed
to have any contact with her. This testimony clearly established
Matt's knowledge that charges were pending against him. As to the
intent to cause a witness to withhold testimony, Weaselhead
testified that Matt told her not to go to court and pursue the
charges, and that if she did, either he or his friends 'lwouldget
her." This testimony is sufficient to establish the intent to
induce her not to testify. A reasonable juror could have found the
elements of the crime beyond a reasonable doubt.
VI
Finally, Matt argues that this Court should reverse the jury
verdict on the grounds that cumulative error prejudiced his right
to a fair trial. We have found no prejudicial error and therefore
the doctrine does not apply.
Affirmed.
- Justice
We Concur: