No. 89-506
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
WILLIAM KACZMAREK,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Toole,
The Honorable R.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James A. Johnson; Johnson & Hunt; Shelby, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; John Paulson,
cc
LA '3 Asst. Atty. General; Helena, Montana
Rae Kalbfleisch, County Attorney; Merle G. Raph,
Deputy Co. Atty.; Shelby, Montana
Submitted on Briefs: May 24, 1990
Decided: July 12, 1 9 9 0
Justice R. C. McDonough delivered the Opinion of the Court.
Defendant William Kaczmarek appeals the judgment of the Ninth
Judicial District Court, Toole County, convicting him of burglary.
We affirm.
Kaczmarek raises the following issues on appeal:
(1) Did the District Court properly refuse to direct a
verdict for the defendant on the grounds the accomplicelstestimony
that formed the basis of the conviction was not sufficiently
corroborated by other witnesses?
(2) Is there sufficient evidence to support the conviction
of burglary?
(3) Did the District Court err in denying the defendant's
request for a court order allowing the defense to call the
accomplice's probation officer as a character witness?
(4) Was the defendant substantially prejudiced by the
District Court's comments concerning the sufficiency of the
corroborating evidence?
During the early morning hours of March 31, 1988, the
residence of Frances Jones in Shelby, Montana was burglarized.
Daniel Malloy was arrested, charged and pled guilty to the burglary
and implicated William Kaczmarek as his accomplice. Kaczmarek was
charged with burglary and was tried and convicted.
At trial, the prosecution presented four witnesses: Malloy,
Frances Jones, Officer John Abrahamson, and Amber Brandt. The
victim, Frances Jones testified how she found her home the day
after the burglary and what items were missing; she was absent when
2
the burglary was committed. She testified that when she came home
every light in the house was on and that several of her possessions
had been taken.
Malloy testified that he was with Kaczmarek during commission
of the crime. He testified that he was unable to enter the home
after breaking a front door window and encountering a second door.
He then went to the side of the house, broke out a bedroom window,
entered through that window, turned on the lights and let Kaczmarek
in the front door.
Once inside, Malloy testified that he loaded up some items
but that he did not actually see Kaczmarek take anything, although
he did see him force open a cedar chest and rummage through the
victimls belongings.
Following his arrest, Malloy stated to Officer Abrahamsonthat
he was willing to name his accomplice but first he wanted to talk
with the County Attorney. According to Officer Abrahamsonlsnotes
at a later meeting with the County Attorney "the first thing Dan
asked Rae was what kind of sentence he would receive if he would
give the name of his acc~mplice.~ Malloy was advised that
sentencing was up to the court but nevertheless it would be better
if he gave the information voluntarily without trying to make some
kind of deal.
Amber Brandt, who lives across the street from the Jones1
residence, also testified. She stated that at the time of the
burglary she saw a white Ford Granada pull up to the residence and
two men get out of the car, one being a relatively large man and
one with a smaller build. She did not see their faces. Later that
morning at a farm auction she observed what she believed was the
same vehicle and an individual whose build matched the general
description of one of the men she had seen at the Jones' residence
the previous night. Later that evening, after hearing about the
burglary, she reported her observations to the police. Brandt then
picked Kaczmarekts picture from a photo lineup as the individual
she saw driving a white Ford Granada at the auction. While she
could not positively identify the defendant or his vehicle as the
ones she observed at the crime scene, she testified that it was the
similar nature of the car she saw at the auction---Brandt
apparently owned one of two white Ford Granadas in Shelby---that
triggered her suspicion.
At trial, Kaczmarek moved for a directed verdict on the
grounds that the State did not offer sufficient independent
testimony to corroborate the testimony of the accomplice Malloy.
The court, noting that the issue was close, denied the motion but
stated that if a conviction were returned it would reconsider the
issue. Kaczmarek alleges that this statement by the District Court
influenced him not to take the stand and testify on his own behalf.
Kaczmarek also moved the District Court to allow him to call
Malloyts probation officer as a character witness on rebuttal.
The court also refused this motion. Kaczmarek now appeals raising
the issues cited above.
I.
As his first issue, Kaczmarek contends that there is
insufficient testimony to corroborate the testimony of the
accomplice. Section 46-16-213, MCA, requires corroboration of an
accomplicels testimony by ''other evidence which in itself and
without the aid of the testimony of the one responsible or legally
accountable for the same offense tends to connect the defendant
with the commission of the offense. The corroboration is not
sufficient if it merely shows the commission of the offense or the
circumstances thereof." Section 46-16-213, MCA. We have summarized
in prior cases the guidelines for testing the sufficiency of
corroborating evidence:
To be sufficient, corroborating evidence must show more
than that a crime was in fact committed or the
circumstances of its commission. It must raise more than
a suspicion of the defendant's involvement in, or
opportunity to commit, the crime charged. But
corroborative evidence need not be sufficient, by itself,
to support a defendant's conviction or even to make out
a prima facie case against him. Corroboratins evidence
may be circumstantial and can come from the defendant
and his witnesses.
State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99.
(Emphasis added.) [Citations omitted.] Corroborating testimony
is viewed in a light most favorable to the State. State v. Conrad
(Mont. 1990), 785 P.2d 185, 187, 47 St.Rep. 32, 34. The
corroborating evidence need onlytend to connect the defendant with
the crime charged and need not extend to every fact to which the
accomplice testifies. Conrad, citing State
Ungaretti (Mont. 1989), 779 P.2d 923, 925, 46 St.Rep. 1710, 1713.
Thus, corroborating evidence is not insufficient merely because it
is circumstantial, disputed, or possibly consistent with innocent
conduct; it is the jury's duty to resolve such factual questions.
State v. Cain (1986), 221 Mont. 318, 321, 718 P.2d 654, 656-657.
The case relied on by defendant, State v. Case (1980), 190
Mont. 450, 621 P.2d 1066, is distinguishable from the case at bar.
In Case, we noted that corroborative evidence must clearly (1)
be independent, (2) point toward the defendant's guilt, and (3)
provide a legally sufficient connection between the defendant and
the offense. Case, 621 P.2d at 1070; see also Civil Procedure and
Evidence, Montana Supreme Court Survey, 41 Mont.L.Rev. 293, 312-
319 (1980). We held there that the State failed to produce anv
corroborative evidence because all the testimony presented as
corroborative failed this test.
Here, albeit circumstantial, the evidence meets this three
part test. Kaczmarek admitted to deputy Abrahamson that he and
Malloy were driving his white Ford Granada around Shelby the night
of the crime. Amber Brandt testified that a white Ford Granada
containing two men, one whose build matched the defendantls,drove
up and parked outside the victim's house. She later saw Kaczmarek
driving a white Ford Granada the next day. While there is no
direct proof apart from Malloyls testimony that Kaczmarek
accompanied him during the burglary, there is sufficient
independent circumstantial evidence consistent with Malloyls
version of the facts to corroborate his testimony and tending to
establish Kaczmarek's guilt.
11.
Related to the issue of sufficient corroboration, Kaczmarek
contends that the evidence is insufficient to support the
conviction of burglary. We disagree.
The proper standard of review for sufficiency of the evidence
in a criminal case 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. 'I State v. Gommenginger (Mont. 1990), 790 P.2d
455, 461, 47 St.Rep. 681, 687; State v. Krum (Mont. 1989), 777 P.2d
889, 891, 46 St.Rep. 1334, 1336.
The State was required to prove that Kaczmarek knowingly
entered or remained unlawfully in an occupied structure with the
purpose to commit an offense therein. Section 45-6-204 (1), MCA.
Having determined that the accomplice's testimony was sufficiently
corroborated by the testimony of Brandt and the defendant himself,
the testimony of Malloy sufficiently establishes the essential
elements of burglary in this case. Malloy testified that it was
Kaczmarekts idea to burglarize the Jonest residence. Kaczmarek
entered the house with him and rummaged through the victim's
belongings and broke into a cedar chest. Clearly, a rational jury
could have found the defendant guilty of burglary.
111.
Kaczmarek also contends that the District Court erred in
refusing to allow him to call Jerry Skiba, Malloyls former
probation officer as a rebuttal witness for the purpose of proving
Malloy's character for untruthfulness. He argues that such
testimony is admissible pursuant to Rule 608, M.R.Evid.
We need not address whether the testimony is admissible under
this rule. Although the trial judge did not state the reasons for
his ruling, the prosecution objected to the testimony in part on
the ground that no notice was given to the prosecution pursuant to
the discovery order and thus Skiba was a surprise witness. The
State listed accomplice Malloy as a witness when it filed the
information commencing this prosecution. Thus, the defendant had
notice from the outset that Malloy was likely to testify against
him and therefore had ample time to secure witnesses for the
purpose of discrediting Malloyts testimony.
Furthermore, the District Court granted the Statets motion
for discovery filed pursuant to 6 46-15-323, MCA, on February 1,
1989, and ordered the defendant to disclose to the State the names
and addresses of all persons, other than the accused, who were to
be called as witnesses by the defense at trial. At the omnibus
hearing on March 9, 1989, the defendant agreed to provide the State
with a complete list of all defense witnesses with their addresses
and statements ten days prior to trial. Kaczmarek failed to comply
with these orders with respect to calling Skiba as a witness.
Section 46-15-323 (4), MCA, also requires a defendant to provide
the prosecutor with the names of defense witnesses within 30 days
after arraignment or at such later time as the court may for good
cause permit. Moreover, the district court may preclude a defendant
from calling a witness if he has failed to comply with the
disclosure provisions set forth in 6 6 46-15-321 through 329, MCA,
or any order issued pursuant thereto. section 46-15-329, MCA;
State ex re1 Carkulis v. District Court (1987), 229 Mont. 265, 746
P.2d 604. Imposition of such sanctions is within the sound
discretion of the district court and will not be overturned absent
a clear abuse of discretion. State v. Waters (1987), 228 Mont.
490, 495, 743 P.2d 617, 621. Here, Kaczmarek did not offer any
reason why pretrial disclosure was not made. The District Court
did not abuse its discretion in denying Kaczmarek's motion to call
Skiba as a witness.
Finally, Kaczmarek argues that he was substantially prejudiced
by the following comments made by the District Court:
There are thousands of Granadas made, I suppose, but I
guess only two of them in Shelby. There's no evidence
who owns this Granada but apparently the testimony from
Malloy is that he drove the car up there. And of course,
the testimony is he drove the car to the auction. While
it is indeed thin, I'm going to let the matter go to the
jury on the matter of corroboration. We'll see what
the jury does with it. If they, if a conviction's
returned, 1'11 call for briefs and we'll ... go over
the evidence with a fined tooth comb as to whether the
verdict should be set aside or not. But at this stage,
I think there's enough testimony before the jury to get
to the jury on the corroboration of the witness.
In an affidavit filed with this Court Kaczmarek alleges that these
comments constitute a promise by the court to reconsider the
sufficiency of the corroborating evidence and led him to choose
not to take the stand and testify on his own behalf.
This contention lacks merit. The defendant failed to object
the District Court s determination the issue after trial,
thus the court's alleged failure to reconsider the issue cannot be
raised as error on appeal. See $ 5 46-20-104, 46-20-701, MCA. The
~istrictCourt was not required to reconsider the issue sua monte.
Defendant's decision must be regarded as trial strategy rather than
a decision somehow influenced by the District Court's comments.
The defendant suffered no prejudice and there is sufficient
evidence to sustain the conviction.
AFFIRMED.
We Concur: