No. 89-258
IN THE SUPREME COURT OF THE STATE OF MONTANA
MARK N. SMITH,
Plaintiff and Appellant,
-vs-
ROOSEVELT COUNTY, MONTANA,
and SHERIFF JOHN Q. GRAINGER,
Defendants and Respondents.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arnie A. Hove, Circle, Montana
For Respondent:
Ralph J. Patch, Roosevelt County Attorney, Wolf Point,
Montana
Submitted on Briefs: Oct. 13, 1989
Decided: March 8, 1990
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Mark N. Smith, plaintiff and appellant, brought this action
against Roosevelt County and Sheriff John Q. Grainger, defendants
and respondents, alleging that he was unjustifiably terminated from
his position as deputy sheriff with the Roosevelt County Sheriff's
Department. Following a trial held in the Fifteenth Judicial
District Court, Roosevelt County, a jury returned a verdict in
favor of defendants. Smith appeals. We affirm.
The following issues are raised on appeal:
1. Whether the District Court erred in denying Smith's motion
for summary judgment.
2. Whether Smith was denied a fair trial when the District
Court denied his motion in limine and permitted testimony of other
wrongdoings that were not the specific reason for his termination.
3 . Whether substantial credible evidence supported the jury's
finding that Sheriff Grainger justifiably terminated Smith.
4. Whether the District Court erred in refusing to allow
opinion testimony on the legal definition of gross inefficiency.
5. Whether the District Court erred in allowing an
investigative report to be submitted to the jury.
6. Whether the District Court erred in instructing the jury
on the definitions of assault, battery and mistreatment of
prisoners.
7. Whether the District Court erred in instructing the jury
in accordance with Rule 404(b), M.R.Evid.
Roosevelt County Sheriff Dean Mahlum hired Mark N. Smith as
a deputy sheriff on October 1, 1985. In November, 1986, John Q.
Grainger was elected to replace Mahlum and assumed his duties as
the new sheriff in January, 1987.
On July 6, 1988, a Roosevelt County dispatcher and a detention
officer observed Smith throw a young, intoxicated prisoner onto the
floor of the booking room of the county jail and proceed to beat
the prisoner's head into the floor. Both the dispatcher and the
jailer charged that Smith's actions constituted an excessive use
of force. Smith contended that the actions were needed to
physically restrain the prisoner.
Following an investigation, Sheriff Grainger discharged Smith
from his employment with the department. The termination letter,
dated July 19, 1988, read in its entirety as follows:
This letter is to inform you that the review of the
charges in the complaint of (Deputy Mark Smith assaulting
prisoner Julian Deserly) has been completed and the
disposition finding is classified as ttSustained- The
allegation was supported by the proper and sufficient
evidence.
The following is to inform you that your employment as
a Deputy Sheriff is terminated effective on the above
date. The cause for termination is as follows: On the
evening of July 6, 1988, at approximately 5:50 p.m., you
did assault a prisoner in your care and custody, namely,
Julian Deserly, at the Roosevelt County Jail. This
assault occurred without provocation of any kind on the
part of the prisoner. Statements made by you to Sgt.
Brockmeyer were decisive in indicating that you had no
control over yourself at the time the assault occurred
and that you, for some reason, wanted to hurt the
prisoner.
On separate occasions in 1986 there were investigations
into the use of excessive force. Both are documented in
your personnel file and on one incident it is documented
that you were suspended without pay for a period of ten
(10) days. On your transfer to the Wolf Point area
statements were made by you, something to the effect of,
"when I come into a new place I like to create as much
hate and discontent as I can." This type of attitude and
a pattern of using excessive force cannot be tolerated.
Other problems such as failing to complete reports
properly or even at all and the fact that you were
sleeping on duty while assigned to guard the Agribition
have not even been formally addressed yet, but I believe
the matter at hand is the major concern of this
Department and the disciplinary action taken makes these
other violations a moot issue at this time.
The incident with prisoner Julian Deserly is in violation
of the Roosevelt County Sheriff's Department's Policies
and Procedures, Chapter 7, Section 7, Subsection 8,
Criminal Conduct which reads as follows:
IfDeputies will obey all laws of the United States,
Montana State, and local jurisdictions. Violation of any
law, an indictment or information filed against a deputy
or a conviction will be cause for disciplinary action up
to and including termination of employment. Internal
discipline will not be dependent on the outcome of
prosecution."
And the specific law that you violated is 45-5-204
Montana Codes Annotated, Mistreating Prisoners which
reads as follows:
"45-5-204. Mistreating Prisoners. (1) A person commits
the offense of mistreating prisoners if, being
responsible for the care or custody of a prisoner, he
purposely or knowingly: (a) assaults or otherwise
injures a prisoner, (b) intimidates, threatens,
endangers, or withholds reasonable necessities from the
prisoner with the purpose to obtain a confession from him
or for any other purpose; or (c) violates any civil right
of a prisoner. (2) A person convicted of the offense
of mistreating prisoners shall be removed from office or
employment and shall be imprisoned in the state prison
for a term not to exceed 10 years or be fined an amount
not to exceed $50,000.00 or both."
Because Julian Deserly, the prisoner allegedly assaulted by
Smith, was a Native American, the incident was referred to the
Federal Bureau of Investigation. In the fall of 1988, an
indictment was filed against Smith in Federal District Court,
charging him with mistreatment of a prisoner. In January, 1989,
a jury found Smith not guilty of the charges.
Prior to the federal indictment, Smith timely filed a petition
and demand for jury trial with the Fifteenth Judicial District
Court, Roosevelt County, pursuant to 5 7-32-2109, MCA, which
provides :
Any deputy sheriff whose employment is terminated may,
within 30 days from the date of the termination of his
employment, make application to the district court of the
county wherein the deputy was employed for a hearing
before the court, with or without jury, on the charges
resulting in the deputy's termination of employment or
discharge.
Smith sought reinstatement of his employment with the sheriff's
department pursuant to 5 7-32-2110, MCA, which provides:
In the event that a deputy prevails at the hearing
provided for in 7-32-2109, he shall be entitled to be
reinstated as a deputy sheriff at the same salary he
received prior to his discharge or termination of
employment and he shall also be entitled to any rights
that might have accrued to his benefit prior to his
discharge or termination of employment, including that
salary which he would have received but for the
termination.
Following his acquittal on the criminal charges in federal
court, Smith filed a motion for summary judgment in the Roosevelt
County District Court. At a hearing held February 21, 1989, the
District Court denied Smith's motion for summary judgment and set
trial for March 28, 1989. Following a three-day trial, the jury
returned a verdict in favor of defendants, finding that Sheriff
Grainger justifiably terminated Smith under 5 7-32-2107, MCA.
Whether the District Court erred in denying Smith's motion for
summary judgment?
Summary judgment is proper only if the moving party
demonstrates the complete absence of material questions of fact and
that he is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P. In the present case, Smith, as the moving party, failed
to shoulder his burden of proof.
A tenured deputy sheriff may be relieved of his employment
only for one or more statutorily enumerated causes. These causes
are delineated in pertinent part in 5 7-32-2107, MCA, as follows:
(1) conviction of a felony subsequent to the
commencement of such employment;
.. .
(4) sleeping while on duty;
(6) gross inefficiency in the performance of official
duties.
Smith maintains that the sole cause of his termination was
conviction of a felony offense. Therefore, he argues, when he was
acquitted by a jury on the criminal charges of mistreatment, the
reason for his termination was no longer valid. Consequently, he
was entitled to summary judgment.
At the root of Smith's argument is a basic misunderstanding
of the termination statute. Smith contends that a deputy sheriff
may not be terminated for mistreating a prisoner unless he is
convicted of a felony. This simply is not true. A deputy may also
be terminated for gross inefficiency in the performance of official
duties. A violation of official department policy may constitute
gross inefficiency within the meaning of 5 7-32-2107, MCA.
As pointed out in Smith's termination letter, the official
policy of the Roosevelt County Sheriff's Department required
deputies to obey all laws. A mere violation of the law constituted
a violation of department policy, even if the violation did not
result in a felony conviction. Therefore, Sheriff Grainger may
have justifiably terminated Smith for gross inefficiency for
mistreating a prisoner in his custody, a violation of both state
law and department policy.
Numerous questions of fact remained to be resolved by the
jury. The jury needed to determine whether a preponderance of the
evidence showed that Smith assaulted a prisoner in his care in
violation of 45-5-204, MCA, mistreatment of prisoners, and
whether such a violation of law constituted gross inefficiency.
The District Court did not err in leaving these factual
determinations to the jury.
Whether Smith was denied a fair trial when the District Court
denied his motion in limine and permitted testimony of other
wrongdoings that were not the specific cause of his termination.
Prior to trial, Smith made a motion in limine to excise
paragraphs in the termination letter that referred to other alleged
instances of misconduct, e.g., previous mistreatment of prisoners,
failure to complete reports and sleeping while on duty. The
District Court denied his motion.
Smith contends that the court's denial of his motion was in
error because these alleged wrongdoings were irrelevant and highly
prejudicial and should therefore have been kept from the jury.
Whether this is so we need not discuss as we note that it was Smith
who introduced the letter in its entirety to the jury. Thus, any
prejudice that may have been caused by the letter's introduction
must be laid at the feet of Smith himself. He cannot now claim
that he was denied a fair trial by the admission of evidence that
he himself introduced.
Smith also claims that he was denied a fair trial because the
trial court permitted the jury to hear testimony concerning these
other instances of misconduct. Once again, we note that this so-
called highly prejudicial evidence was introduced by Smith in his
case in chief. The transcripts demonstrate that Smith repeatedly
solicited testimony from witnesses regarding those issues he now
claims to be so prejudicial. We will not be misled by Smith's
attempt to characterize his unsuccessful trial tactics as errors
of the District Court.
111.
Whether substantial credible evidence supported the jury's
finding that Sheriff Grainger justifiably terminated Smith.
In the present case, two eye witnesses testified that, without
apparent provocation, Smith grabbed the prisoner, Julian Deserly,
by the hair, threw him down and slammed his face into the floor.
Smith refuted this testimony, claimingthat he was merely following
standard procedure for restraining a resisting prisoner.
Even if the proof presented at trial conflicts, as it does in
this case, this Court will not reweigh the evidence on appeal. It
is uniquely within the province of the jury to determine the weight
and credibility to be given each piece of proof. Weinberg v.
Farmers State Bank of Worden (1988), 752 P.2d 719, 730, 45 St.Rep.
391, 405.
Viewed in the light most favorable to defendants, the evidence
indicated that Smith mistreated Deserly. Therefore, we hold that
substantial credible evidence supported the jury's finding that
Smith was justifiably terminated from his position.
IV.
Whether the District Court erred in refusing to allow opinion
testimony on the legal definition of gross inefficiency.
At trial, Smith attempted to introduce the opinion testimony
of former Roosevelt County Sheriff Dean Mahlum and former
Undersheriff Robert J. Damm regarding the legal definition of gross
inefficiency. The court sustained defendants' objection to this
testimony. Smith argues that this was error.
The District Court has broad discretion in determining the
admissibility of evidence. We will not overturn its decision to
refuse expert testimony absent an abuse of discretion. Massman v.
City of Helena (1989), 773 P.2d 1206, 1210, 46 St.Rep. 764, 768.
Expert testimony in the form of an opinion may be allowed if
the specialized knowledge of the expert will assist the trier of
fact to understand the evidence or determine a fact in issue. Rule
702, M.R.Evid. Ordinarily, such testimony is allowed if the
evidence or fact in issue is beyond the ken of the ordinary juror.
Thus, we allow expert evidence regarding scientific or technical
matters because such testimony is most generally needed to help
jurors understand the evidence and determine the facts of the case.
In the present case, even if we assume that the former sheriff
and undersheriff were qualified as experts to give an opinion as
to a legal definition, there was no need to allow such expert
testimony. At the close of the presentation of evidence, the
jurors were instructed on the definition of gross inefficiency.
That instruction was not so highly technical as to be beyond the
comprehension of the ordinary juror. Because expert opinion
testimony was not needed to help the jurors understand the meaning
of gross inefficiency, the District Court did not err in refusing
such testimony.
v.
Whether the District Court erred in allowing an investigative
report to be submitted to the jury.
~uringhis case in chief, smith encouraged Dennis Brockmeyer,
the detective who investigated the assault upon Julian Deserly, to
read statements from his interview with Deserly. At that point,
defendants asked that the report be marked and given to the jury.
Thereupon, the report itself was entered into evidence. Smith
objected to the exhibit on the grounds that it would be improper
to submit the report to the jury.
As noted previously, the admissibility of evidence lies within
the discretion of the trial court. Massman, 773 P.2d at 1210, 46
St.Rep. at 768. The District Court in the present case did not
abuse its discretion in allowing the submission of the
investigative report to the jury. Smith had already entered the
information into the record when he asked Brockmeyer to read from
the report. He can hardly complain that submitting the actual
exhibit to the jury substantially prejudiced his position.
VI .
Whether the District Court erred in instructing the jury on
the definition of assault, battery and mistreatment of prisoners.
At trial, the District Court instructed the jury as follows:
Instruction No. 8: An assault is any intentional threat
of harmful or offensive contact with another by force
under circumstances which create a well-founded fear of
such contact, coupled with the apparent present ability
to carry out the threat. A battery is an intentional
contact by one person with the person of another which
is harmful or offensive.
Instruction No. 9: An arresting officer may use such
force as is reasonably necessary to effect a lawful
arrest. However, a police officer who uses more force
than is reasonably necessary to effect a lawful arrest
commits a battery upon the person arrested as to such
excessive force.
Instruction No. 10: You are instructed that a person
commits the offense of mistreating prisoners if, being
responsible for the care or custody of a prisoner, he
purposely or knowingly assaults or otherwise injures a
prisoner.
Smith acknowledges that these instructions are accurate
statements of the law but he argues that they should not have been
given because they misled and confused the jury. We do not agree.
Smith was terminated for mistreating a prisoner when he
allegedly assaulted Julian Deserly. Therefore, the jury had to
determine whether a preponderance of the evidence proved that an
assault actually occurred. Instruction No. 8 aided the jury in its
deliberations by informing it of the definitions of assault and
battery. Instruction No. 9 aided the jury by instructing it on
the amount of force an officer may use in making an arrest without
committing a battery. Instruction No. 10 aided the jury by
defining mistreatment, precisely the reason for Smith's
termination.
These instructions were not misleading. On the contrary, they
were needed to help the jury determine the ultimate fact in issue-
-whether Smith was justifiably fired for mistreating a prisoner in
his custody.
VII.
Whether the District Court erred in instructing the jury in
accordance with Rule 404(b), M.R.Evid.
During Smith's case in chief as well as after the presentation
of evidence, the District Court instructed the jury that evidence
of Smith's other wrongdoings was not admitted to prove Smith's
character but only to show guilty knowledge of the offense for
which Smith was terminated, to show malice, to rebut any claim of
accident or mistake, to show motive and to show plan and intent.
This instruction was in accordance with Rule 404 (b), M. R. Evid.
Smith argues that the instruction was confusing and irrelevant and
only admissible in criminal cases.
We need not discuss the merits, if any, of Smith's argument
because, in perusing the record, we find a complete absence of any
objection to the instruction. By failing to object to the
instruction at the District Court level, Smith failed to preserve
the issue for appeal. This Court will not review an issue raised
for the first time on appeal. Weinberq, 752 P.2d at 724, 45
Affirmed.
/
Justice
We Concur: