No. 89-410
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SCOTT SOR-LOKKEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Kehew, Esq., Kalispell, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
John Paulson, Assistant Attorney General, Helena,
Montana
Robert Slomski, Sanders County Attorney, Thompson
Falls, Montana
Submitted on ~riefs: November 8, 1990
FEB * - G 1991
Filed: c
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C L E R K OF
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SU;IHEi'il;IE COURT
STATE OF rdOl'd lPAi'&,
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Decided: February 6, 1991
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Clerk
Justice Diane G. Barz delivered the opinion of the Court.
In the District Court of the Twentieth Judicial District,
Sanders County, defendant Scott Sor-Lokken was convicted of felony
sexual assault and incest. Defendant was sentenced to twenty years
with five years suspended on the sexual assault conviction and to
ten years on the incest conviction with the sentences to be served
concurrently. Defendant was designated a dangerous offender for
purposes of parole eligibility. Defendant appeals. We affirm.
Defendant raises the following issues:
1. id the District Court err in denying defendant's motion
to dismiss for lack of justice court jurisdiction to issue an
arrest warrant on a complaint charging a felony?
2. Was there a proper determination of probable cause?
3. Did the District Court err in denying defendant's motion
to dismiss for failure to arraign defendant on the amended
information?
4. id the District Court err in denying defendant's motion
to dismiss based upon prosecutorial interference with defense
counsel's efforts to interview the victim?
5. Was defendant wrongfully denied a writ of habeas corpus?
6. Do defendant's convictions of sexual assault and incest
violate double jeopardy?
7. Was defendant deprived of a fair trial by reason of juror
misconduct?
8. Was defendant denied his right to reasonable bail on
appeal?
2
9. Did the District Court improperly rely upon
constitutionally infirm prior convictions in sentencing defendant?
On March 22, 1988, the justice court in Sanders County issued
an arrest warrant for defendant based upon a sworn complaint filed
by the Sanders County Attorney. The complaint charged defendant
with two felony offenses: sexual assault, in violation of 5 45-5-
502, MCA, and incest, in violation of § 45-5-507, MCA. The victim
was alleged to be defendant's 15-year-old stepdaughter, K.H.
Sanders County deputies arrested defendant the next day.
On March 28, 1988, while still in custody pursuant to the
justice court warrant, defendant filed an application for writ of
habeas corpus in the Twentieth Judicial District Court. Two days
later, on March 30, 1988, the justice court released defendant on
a $5,000 property bond.
The State filed a motion in the District Court on March 31,
1988, requesting leave to file an information. The District Court
granted the request on April 12, 1988, and the State filed its
information the same day, charging defendant with sexual assault
and incest. Defendant was arraigned on April 26, 1988, and entered
a plea of not guilty to both counts.
On April 19, 1988, defendant moved to exclude the testimony
of K.H. because of alleged prosecutorialmisconduct concerning K.H.
and defense counsel's attempts to interview K.H. without
restriction. The District Court heard oral argument on the motion
on May 24, 1988, and de'nied the motion on May 27, 1988.
An omnibus hearing was conducted on December 13, 1988. The
State notified the defense that it might call Dr. Cindy Miller,
K.H.'s therapist, as an expert witness. Defendant indicated that
he would file motions to depose K.H. and to obtain a more
particular statement of the alleged offenses.
In response to defendant's motions for a bill of particulars
and to dismiss the information, the State filed a motion for leave
to amend the information on January 20, 1989. Defendant opposed
the proposed amended information in part on the grounds that it
added the names of several new witnesses. The court denied the
motion to dismiss and granted leave to file the amended information
on February 27, 1989.
The trial began on May 30, 1989. K.H. testified that
defendant had sexual contact with her on several occasions during
the preceding five years, excluding the one and one-half years she
lived with her natural father in Washington. She testified that
defendant would touch her breasts and the area between her legs and
have her touch his penis. She further testified that defendant
told her that these actions showed that they loved each other and
that she should not tell anyone because others would not understand
or believe her and she would get in trouble.
The jury found defendant guilty of both offenses, felony
sexual assault and incest, on June 2, 1989. On the same day, the
District Court sentenced defendant to twenty years on the felony
sexual assault with five years suspended, and ten years on the
incest with the sentences to be served concurrently. Defendant was
designated a dangerous offender and bail was set on appeal at
$300,000. Defendant appeals.
I
Did the District Court err in denying defendant's motion to
dismiss for lack of justice court jurisdiction to issue an arrest
warrant on a complaint charging a felony?
Defendant contends that a justice court cannot commence a
felony by complaint. He contends that the procedure violates Art.
VII, Section 5, of the Montana Constitution which states:
(2) Justice courts shall have such original
jurisdiction as may be provided by law. They shall not
have trial jurisdiction in any criminal case designated
a felony except as examining courts.
Defendant raised this identical argument in appealing his
convictions of two counts of felony assault in State v. Sor-Lokken
(Mont. 1990), - P . 2 d 1 47 St.Rep. 2264. In that case, citing
State v. Snider (1975), 168 Mont. 220, 541 P.2d 1204, we held that
initiating a felony prosecution by complaint in the justice court
is an established practice in this State and not prohibited by
statute. Sor-Lokken, 47 St.Rep. at 2265. We reaffirm that holding
and conclude the District Court did not err in denying defendant's
motion to dismiss for lack of justice court jurisdiction to issue
an arrest warrant on a complaint charging a felony.
Was there a proper determination of probable cause?
Defendant contends his arrest was unlawful because the
complaining witness was not examined under oath as to probable
5
cause and the probable cause for arrest was not reduced to writing.
Defendant further contends he had a right to be present and have
counsel present when the State made the application for leave to
file an information.
Section 46-6-201, MCA, provides that an arrest warrant may be
issued when a written complaint is presented to a court charging
a person with the commission of an offense and the court examines
the complainant under oath to determine if there is probable cause
for the arrest. Art. 11, Section 11 of the 1972 Montana
Constitution requires probable cause supported by oath or
affirmation reduced to writing. A sufficient complaint and
examination of the complainant under oath by the magistrate
generally fulfill this requirement. State ex rel. Wicks v.
District Court (1972), 159 Mont. 434, 498 P.2d 1202. That
procedure occurred in the present case. Additionally, the District
Court made an independent determination of probable cause and
granted the State leave to file an information. However, even if
defendant's arrest had been unlawful, an illegal arrest of a
defendant neither precludes the State from proceeding on a criminal
charge against him nor presents the defendant with a defense to a
valid conviction. State v. Woods (1983), 203 Mont. 401, 662 P.2d
579.
Defendant did not have a right to be present when the State
applied for leave to file an information. This Court has
previously held that a defendant's right to counsel was not
violated because counsel was not appointed until after the
information was filed. State v. Farnsworth (1989), 240 Mont. 328,
333, 783 P.2d 1365, 1368.
We hold there was a proper determination of probable cause and
no rights of defendant were violated.
I11
Did the District Court err in denying defendant's motion to
dismiss for failure to arraign defendant on the amended
information?
The State filed the original information on April 12, 1988.
An arraignment followed on April 26, 1988. On February 27, 1989,
the State was granted leave to file an amended information.
Defendant, citing 3 46-15-322, MCA, asserts that in order for
the State to add witnesses after arraignment it must demonstrate
good cause. Defendant argues that the District Court erred in
allowing the State to add the witnesses almost a year after
arraignment without inquiring into good cause and that this put an
undue burden and surprise on the defense. Defendant further argues
the District Court erred by failing to arraign defendant on the
amended information, contending the amendment to the information
was one of substance and not form.
Section 46-11-403 (2), MCA, provides that the district court
may permit an information to be amended as to form at any time
before the verdict or finding if no additional or different offense
is charged and if the substantial rights of the defendant are not
prejudiced. The statute does not require arraignment for an
amendment as to form. This Court has stated that an amendment is
one of form and not substance when the same crimes are charged, the
elements of the crimes remain the same, the required proof remains
the same, and the defendant is informed of the charges against him.
State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975; State
v. Brown (1976), 172 Mont. 41, 44, 560 P.2d 533, 535.
The record shows that the State amended the original
information in response to defendant's request for a bill of
particulars. The amended information was filed three months before
trial and was identical to the original information in all but two
respects. The original information alleged defendant committed the
offenses against X.H. in a continuous course of conduct over the
preceding five years. In the amended information the State
corrected the allegation to exclude the period of time K.H. spent
with her natural father in Washington. The State also listed
additional witnesses.
The amendment to the information was one of form and not
substance. The State continued to charge the same crimes, sexual
assault and incest. Expanding the witness list did not change the
crimes charged against defendant, the elements of the crimes, or
the proof required. The information apprised defendant of the
charges against him so he could prepare a defense.
In addition, expanding the witness list did not prejudice the
substantial rights of defendant. The information was amended three
months before trial. The District Court found this to be
sufficient time for discovery concerning the additional witnesses.
Moreover, the record shows the State did not amend the information
for the sole purpose of adding witnesses, but rather, amended the
information to accommodate defendant's request to specify with more
particularity the time during which the offenses occurred.
We hold the District Court did not abuse its discretion in
permitting the State to add witnesses in the amended information
and correctly denied defendant's motion to dismiss for failure to
arraign defendant on the amended information.
IV
Did the District Court err in denying defendant's motion to
dismiss based upon prosecutorial interference with defense
counsel's efforts to interview the victim?
Defendant asserts that the county attorney refused to give
defendant s counsel the address of where the witness, K.H. , was
staying, restricted defense counsel's access to interview K.H., and
refused to allow defendant to be present when interviewing K.H.,
even though K.H. had never personally requested an interview free
from defendant's presence. Defendant argues the county attorney's
conduct constitutes blatant prosecutorial interference
substantially impairing defendant's preparation of a defense.
Defendant further argues that the appropriate remedy is the
exclusion of K.H.'s testimony, requiring reversal.
In State v. Smith (1988), 235 Mont. 99, 765 P.2d 742, this
Court recognized that child victims need protection against the
potential emotional and psychological injuries that a normal
interview could inflict, especially a face-to-face confrontation
with the accused. Æ his Court stated that the district court may
establish conditions, fashioning an interview which allows the
defendant to remain outside the immediate presence of the victim
while at the same time assist his attorney. Smith, 235 Mont. at
This Court further stated that the victim
and guardian are entitled to have a voice in the conditions of
interviews and depositions requested by the defendant. Smith, 235
Mont. at 103, 765 P.2d at 744.
On February 14, 1989, after a request from the county
attorney, the District Court ordered the parties to follow Smith-
type procedures when interviewing K.H.:
THE COURT: If the county attorney resists his
presence, you follow the guidelines on the Supreme Court
cases. . .
.
MR. SLOMSKI: It's my position he can not be
personally present.
THE COURT: Then follow the procedures there and
make the interview available and set up some kind of
physical arrangements, either tape the statement or some
arrangements, so that defense counsel has the opportunity
for counseling with his client and go back in and
continue the examination of the alleged victim.
The District Court further indicated to defendant's counsel that
it would assist defendant if the Smith-type interview was deemed
unsatisfactory.
The record shows that the prosecution did not interfere with
the defense. The State arranged an interview with K.H. on February
22, 1989, at defendant's request. At this meeting K.H.'s guardian
stated to defendant's counsel that the Smith-type procedures were
necessary for a defense interview. Defendant's counsel declined
to ask further questions, concluding the interview was untenable.
Thereafter, defendant's counsel did not seek to depose the witness
or ask the court for assistance until the day of trial.
Furthermore, defendant's counsel conceded the State did not
exclude him from an interview with K.H. The State provided defense
counsel with opportunities to interview the witness. The State
first offered an interview immediately following the filing of the
information to which defendant failed to respond.
We hold that the ~istrictCourt properly denied defendant's
motion to dismiss based upon prosecutorial interference.
v
Was defendant wrongfully denied a writ of habeas corpus?
Defendant filed an application for writ of habeas corpus in
the District Court on March 28, 1988. Two days later the justice
court released defendant on a $5,000 property bond and the District
Court did not act on the petition. The District Court noted that
defendant had filed the application but did not notice it for
hearing or bring it to the court's attention until April 11, 1989.
The petition for writ of habeas corpus became moot when the
justice court released defendant. Section 46-22-101, MCA, provides
that a person imprisoned or otherwise restrained of his liberty may
prosecute a writ of habeas corpus to ascertain if the imprisonment
or restraint is unlawful. If the custody is unlawful, the
petitioner must be released. Because defendant was not in custody,
he was not deprived of his liberty and the petition became moot.
The court cannot grant habeas corpus relief when the petitioner is
not in custody. See, Degesualdo v. Crist (1973), 162 Mont. 540,
511 P.2d 1323. Moreover, the District Court considered the merits
of the alleged grounds for the writ--improper justice court
proceedings and prosecutorial interference with defense efforts to
interview the victim--in subsequent defense motions.
We hold that defendant was not wrongfully denied a writ of
habeas corpus.
VI
Do defendant's convictions of sexual assault and incest
violate double jeopardy?
Defendant, citing State v. Hall (1986), 224 Mont. 187, 728
P.2d 1339, revld on other qrounds, per curiam, 481 U.S. 400, 107
S.Ct. 1825, 95 L.Ed.2d 354, contends that the offenses of sexual
assault and incest constitute the same offense in law and in fact
and therefore his convictions of both sexual assault and incest
violate the Fifth Amendment double jeopardy clause which prohibits
multiple punishments for the same offense.
Section 46-11-502, MCA, is Montana's double jeopardy statute.
It provides that when the same transaction establishes the
commission of more than one offense, a person charged with such
conduct may be prosecuted for each such offense. However, § 46-
11-502(4), MCA, provides that the person charged cannot be
convicted of more than one offense if the offenses differ only in
that one is defined to prohibit a designated kind of conduct
generally and the other to prohibit a specific instance of such
conduct.
In Hall, supra, this Court applied 5 46-11-502 (4), MCA, to the
offenses of sexual assault and incest and found a double jeopardy
violation. In that case the victim was the defendant's twelve-
year-old stepdaughter. In concluding under the facts presented
that sexual assault and incest constituted the same offense, this
Court stated that ''without consent1'required no separate proof as
an element of sexual assault because of the victim's age. Hall,
224 Mont. at 191, 728 P.2d at 1341.
We determine the facts of the present case to be
distinguishable from Hall and conclude the convictions and
sentencing of defendant did not violate double jeopardy
protections. The sexual assault statute, 5 45-5-502, MCA, requires
proof of the victim's lack of consent if the victim is over the
age of fourteen and the offender is three or more years older than
the victim. Under 5 45-5-507, MCA, however, incest does not
require proof of lack of consent if the victim is under the age of
eighteen. The victim, K.H., was fifteen years old. Because of her
age the State needed to prove lack of consent for the sexual
assault while lack of consent was not an element which required
proof for the incest charge. In accordance with the jury
instructions, the jury could have found defendant guilty of incest
and, at the same time, not guilty of sexual assault. Defendant
received concurrent sentences because the offenses arose from the
same transaction.
We hold the defendant's convictions of both sexual assault and
incest do not violate double jeopardy protections.
VII
Was defendant deprived of a fair trial by reason of juror
misconduct?
Defendant claims that one of the jurors, Jolene Hamann, did
not tell the truth during voir dire about the extent of her
knowledge of this case or the defendant and that he was denied a
fair trial as a consequence. Defendant points to a petition to
have defendant incarcerated which was signed by various members of
the community, including Ms. Hamann, and asserts that the petition
was not disclosed to the defense until after trial.
Alleged jury misconduct must affect a material matter in
dispute and must prejudice the complaining party. State v. Maxwell
(1982), 198 Mont. 498, 505, 647 P.2d 348, 352. Our review of the
transcript of voir dire does not reveal any misconduct by Ms.
Hamann concerning the petition. During voir dire Ms. Hamann stated
that she knew defendant but believed she could be impartial. She
also stated she signed a petition concerning defendant. A reading
of the transcript evidences possible confusion regarding the
petition but does not show Ms. Hamann sought to perjure herself.
Ms. Hamann also stated that she knew Mr. Wheat, who allegedly wrote
and circulated the petition.
Defendant has failed to show that he was deprived of a fair
trial and a new trial is not warranted.
VIII
Was defendant denied his right to reasonable bail on appeal?
Defendant argues that the $300,000 appeal bond set by the
District Court was excessive and violated defendant's State and
Federal constitutional rights against excessive bail. On October
12, 1989, this Court denied defendant's application for a writ of
habeas corpus which raised an identical challenge against the
appeal bond. Defendant's claim on appeal is therefore barred under
the doctrine of res judicata.
IX
Did the ~istrictCourt improperly rely upon constitutionally
infirm prior convictions in sentencing defendant?
Defendant maintains that because of the appeal of his felony
assault convictions in Sanders County (Supreme Court Cause No. 89-
475) on constitutional grounds, the District Court improperly
relied upon the convictions in sentencing him in the present case.
The felony assault convictions were affirmed by this Court in State
v. Sor-Lokken (Mont. 1990) , - P.2d , 47 St.Rep. 2264, and
defendant's claim is therefore moot. However, we feel it necessary
to comment further.
A sentencing court cannot rely upon a previous criminal record
if that record contains constitutionally infirm convictions. Ryan
v. Crist (1977), 172 Mont. 411, 413, 563 P.2d 1145, 1146; State v.
Baldwin (1981), 192 Mont. 521, 524, 629 P.2d 222, 224. Defendant
was sentenced for the felony assault convictions and for the sexual
assault and incest convictions at the same sentencing hearing. The
District Court cited several reasons for the sentencing
determination and the designation of defendant as a dangerous
offender. Defendant's felony assault convictions were but one
factor. The District Court was not required to wait until those
convictions were affirmed on appeal before considering them for the
purpose of sentencing defendant for the sexual assault and incest
convictions.
We hold that the District Court properly considered
defendant's felony assault convictions in sentencing defendant in
the present case.
Affirmed.
We concur:
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