No. 92-552
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
THOMAS NEIL SULLIVAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Turner C. Graybill and George Robert Crotty, Jr.,
Graybill, Ostrem & Crotty, Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal S. Wellenstein, Assistant Attorney
General, Helena, Montana
Patrick L. Paul, Cascade County Attorney,
Great Falls, Montana
.$ *>
Submitted on Briefs: April 21,
*A
..,-
,
. r,
I.
*
r .
? i z : ~ ~ Decided: September
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Thomas Neil Sullivan appeals from a verdict of the
Eighth Judicial District, Cascade County, finding him guilty of
three counts of felony theft, one count of felony accountability
for tampering with public records, and a judgment requiring him to
pay a fine to a charity from vacation and sick pay.
We affirm in part, reverse in part, and remand to the District
Court for further proceedings.
We state the issues as follows:
1. Did the District Court err in failing to hold an omnibus
hearing at least 30 days prior to trial pursuant to g 46-13-110,
MCA, thereby prejudicing defendant?
2. Did prejudicial media publicity, and the District Court's
refusal to grant challenges for cause, preclude a fair trial for
defendant?
3. Did the District Court err by limiting the testimony of
Sue Duarte, excluding the testimony of Richard Duarte, and failing
to grant defendant's motion for a mistrial?
4. Did the District Court err in refusing to dismiss or
reverse Counts I, 111, IV, and V of the information on the grounds
of insufficiency of evidence?
5. Did the District Court err in fining defendant his
vacation pay and sick leave pay and ordering distribution of these
funds to United Way of Cascade County?
Tom Sullivan was employed by the City of Great Falls from 1963
until August 29, 1991. He became director of the City's Recreation
Department in 1965 and directed the City's consolidated "Park and
Recreation Departmentu (the Department) from 1975 until August 29,
1991.
On August 29, 1991, Sullivan met with Great Falls Police Chief
Robert Jones, Lieutenant Dave Warrington, and Detective Tim Shanks
at the police station at their request. At the meeting, Chief
Jones confronted Sullivan about allegations that large sums of
money were missing from the department. Chief Jones asked Sullivan
whether he had been taking golf course driving range money, winter
golf lesson money, and golf course membership money for personal
use. Sullivan told him that the money was used for Department
projects, not his personal use. Sullivan asked to speak with City
Manager John Lawton, who came to the police station after Chief
Jones called him.
During this meeting, Mr. Lawton stated that he viewed the
matter very seriously and that he was contemplating terminating
Sullivan, suspending him with pay pending an investigation, or
suspending him without pay pending an investigation. The next day,
August 30, 1991, Sullivan resigned. Following his resignation and
throughout the trial the Sullivan case received widespread local
news coverage.
On November 15, 1991, the State charged Sullivan by
information with five counts of felony theft, in violation of
5 45-6-301(1) (b), MCA; tampering with public records or information
by accountability, a felony, in violation of § 45-2-302(l) and
5 45-7-208, MCA; and official misconduct, a misdemeanor, in
violation of 5 45-7-401, MCA.
On March 31, 1992, Sullivan filed a motion requesting the
court to set a date for a preliminary pretrial conference. On
April 6, 1992, Sullivan filed a motion to dismiss Counts I, 11,
111, IV, and VII of the information. Sullivan also filed a motion
for individualized, sequestereci voir dire, and various motions in
limine. Three days prior to trial, on April 17, 1992, the court
held an omnibus hearing. The court granted Sullivanls motion to
depose Richard Duarte, and his motion for individualized,
sequestered voir dire. The court dismissed one felony theft charge
concerning swimming pool locker money and ordered Sullivan to stand
trial on the following renumbered counts:
I: felony theft of city driving range money;
11: felony theft of golf club storage fees belonging to
Connie Crammer;
111: felony theft of golf lesson money belonging to Bill Dunn
or Connie Crammer;
IV: felony theft of golf course membership money;
V: felony accountability for tampering with public records by
causing his secretary "to knowingly make false entries or false
alterations of golf membership recordse; and
VI : a misdemeanor count for "official misconduct" in
"ordering his employees to provide funds for the 1991 Icebreaker
Run from other budgets outside of the established budget for the
Run.
On April 29, 1992, the jury found Sullivan guilty of three
counts of theft and one count of tampering with public records by
accountability. The jury found Sullivan not guilty of one count of
theft and the charge of official misconduct. On May 11, 1992,
Sullivan filed a motion to correct the verdict and a motion for a
new trial. The court denied both motions. The court sentenced
Sullivan to serve four 10-year concurrent sentences in the Montana
State Prison with all but 30 days of the time suspended. As a
condition of his suspended sentences, the court ordered Sullivan to
pay $5644.68 in costs and restitution payable in the amount of $300
per month to the City of Great Falls for ten years starting from
June 26, 1992. The court also sentenced Sullivan to be fined
$7089.30 of his vacation pay and $8699.63 of his sick leave to be
paid to the Great Falls United Way. In addition, Sullivan was
sentenced to 2000 hours of community service with the Great Falls
Salvation Army.
ISSUE 1
Did the District Court err in failing to hold an omnibus
hearing at least 30 days prior to trial pursuant to 5 46-13-110,
MCA, thereby prejudicing defendant?
Our standard of review relating to conclusions of law is
whether the trial judge's interpretation of the law is correct.
Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803
P.2d 601, 603.
Defendant argues that the District Court's violation of
5 46-13-110, MCA, constitutes reversible error. Defendant asserts
that holding the omnibus hearing 30 days prior to trial would have
ensured timely consideration of pretrial motions and issues and
would have avoided confusion and error.
Section 46-13-ii0, MCA, provides in part:
(1) Within a reasonable time following the entry of a
not guilty plea but not less than 3 0 days before trial,
the court shall hold an omnibus hearing.
(2) The purpose of this hearing is to expedite the
procedures leading up to the trial of the defendant.
On January 16, 1992, Judge Sherlock, defendant, and the State
held a telephonic scheduling conference in which the parties agreed
to a trial date, a date to file pretrial motions, and an omnibus
hearing scheduled for April 17, 1992. The record shows that prior
to the omnibus hearing the court received, read, and understood the
issues presented by the parties. The court heard arguments from
both sides and addressed the issues raised in each motion at the
omnibus hearing.
Defendant argues that three issues in particular were
compromised by holding the omnibus hearing three days prior to
trial.
First, defendant contends that discovery of documents
previously requested from the City was not yet complete. The
record shows that the court held a telephonic discovery conference
on April 7, 1992, at which time the court ordered the State to
provide discovery material to defendant. The court ordered the
City to provide defendant access to its files. The State complied
with the order with the exception of two items. The State produced
these items after the court addressed the issue at the omnibus
hearing.
Second, defendant notes that the court granted his motion for
individualized, secpestered voir dire, but subsequently modified
the ruling to the great prejudice of defendant. The motion for a
sequestered voir dire was granted at the omnibus hearing. There is
nothing in the record to show how defendant was prejudiced by
granting this motion. Likewise, there is nothing in the record to
show that the subsequent modification of this ruling was the result
of holding the omnibus hearing three days before trial, rather than
thirty days.
Third, defendant contends that the deposition of Richard
Duarte, authorized at the omnibus hearing, was not completed until
April 20, 1992, and that the deposition of Michael Clark (Richard
Duartetsstepson) was denied. Defendant filed the motion to compel
the deposition of Richard Duarte and Michael Clark on April 15,
1992. The court ruled on that motion two days later at the omnibus
hearing. We do not see the prejudice created by the court's timely
ruling on that motion.
"The purpose of the [omnibus] hearing is to expedite the
procedures leading up to the trial of the defendant." Section
46-13-110, MCA. It is clear from the record that all pretrial
motions were raised, argued, considered, and disposed of by the
court at the omnibus hearing. There is nothing in the record to
demonstrate that defendant was prejudiced by the court's
disposition of those pretrial matters.
We hold that the District Court did not err in failing to hold
an omnibus hearing at least 30 days prior to trial.
ISSUE 2
Did prejudicial media publicity and the District Court's
refusal to grant challenges for cause preclude a fair trial for
defendant?
Defendant maintains that his efforts to avoid prejudice from
the publicity surrounding the case were deterred by the District
Court's failure to take the necessary precautions to assure a fair
trial and unbiased jury. Defendant asserts that continuous and
massive publicity conditioned jurors to assume defendant's guilt.
In support of this assertion, the appendix to defendant's opening
brief contains 36 news articles published before and during the
trial.
In cases where defendants have moved for a change of venue
due to prejudicial, media publicity we have held that the publicity
must be inflammatory and create a reasonable apprehension that a
fair trial is not possible. State v. Pease (1987), 227 Mont. 424,
433, 740 P.2d 659, 664; State v. Nichols (l987), 225 Mont. 438,
444, 734 P.2d 170, 174; 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.
Inflammatory publicity is characterized by
"editorializing on the past of the media or any
calculated attempt to prejudice public opinion against
[defendant] or to destroy the fairness of the pool from
which [defendant's] prospective jurors would be drawn."
State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 174
(quoting State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d
341, 350). A review of the exhibits in the appendix to defendant's
brief reveals extensive news coverage that is factual rather than
inflammatory.
Defendant argues that the court's refusal to grant four
defense challenges for cause precluded a fair triai for defendant.
The statute governing challenges for cause is 5 46-16-115, MCA,
which provides in part:
(2) A challenge for cause may be taken for all or
any of the following reasons or for any other reason that
the court determines:
. . .having a state of mind in reference to the case
.
(j)
or to either of the parties that would prevent the juror
from acting with entire impartiality and without
prejudice to the substantial rights of either party.
The decision o f a district court judge as to the impartiality
of a jury should not be set aside unless there is clear abuse of
discretion. State v. Borchert (l97l), 156 Mont. 315, 320, 479 P.2d
454, 457; Watson v. City of Bozeman (1945), 117 Mont. 5, 11, 156
P.2d 178, 180. As to the level of juror prejudice which would
mandate disqualification, this Court said:
It is only where they form fixed opinions of the guilt or
innocence of the defendant which they would not be able
to lay aside and render a verdict solely on the evidence
presented in court that they become disqualified as
jurors.
Great Falls Tribune v. District Court (1980), 186 Mont. 433,
439-40, 608 P.2d 116, 120 (citing Irvin v. Dowd (1961)' 366 U.S.
717, 722, 81 S. Ct. 1639, 1642, 6 L. Ed. 2d 751, 756); State V.
Lewis (19761, 169 Mont. 290, 296-97, 546 P.2d 518, 522.
Defendant offers the voir dire examination of juror Price to
illustrate how t n court's refusal to grant a challenge for cause
ie
precluded a fair trial. Price stated that he had heard about the
Sullivan case before trial, and that he believed Sullivan to be
guilty. In answer to the State's questions, however, Price stated
that he could set aside any prior opinions and base his decision on
the evidence presented at trial. As a result, the court denied
defendant's challenge for cause. In State v. Bashor (1980), 188
Mont. 397, 408-09, 614 P.2d 470, 477, this Court held that the
district court did not abuse its discretion in refusing the
challenge for cause of a juror whose answers to defense counsel
which, if standing alone, would indicate she could not give a fair
opinion in the case. When further questioned by the court, the
juror made it clear that she could put aside her emotions and judge
the defendant fairly and solely on the evidence presented at trial.
In the present case, the District Court instructed prospective
jurors that they must base their verdict on the evidence and put
aside anything they had read in the papers or had seen on
television regarding the case. The court instructed the jurors not
to discuss the case with anyone, not to read about the case, not to
listen to radio broadcasts about the case, and not to watch
television coverage about the case. During voir dire, both the
State and defendant informed the jurors that defendant was presumed
innocent, and that the State carried the burden of proving
defendant's quilt beyond a reasonable doubt. Both the State and
defendant questioned potential jurors about their prejudices. The
impaneled jurors stated that they would be able to base their
verdict solely on the evidence presented Ln court.
The publicity generated before and during the present case,
although extensive, did not rise to the level of inflammatory so as
to destroy the objectivity of the jury pool. Defendant has failed
to demonstrate the prejudicial effect of that publicity. The
record shows that the District Court carefully instructed both
potential and impaneled jurors to lay aside their impressions and
opinions and base their verdict on the evidence produced in court.
Each juror selected to sit assured the District Court that his or
her verdict would be based solely on the evidence produced in
court. The record reveals no abuse of discretion by the District
Court in determining whether prospective jurors were fit to serve.
We hold that neither media publicity nor the District Court's
refusal to grant challenges for cause precluded a fair trial for
defendant.
ISSUE 3
Did the District Court err by limiting the testimony of Sue
Duarte, excluding the testimony of Richard Duarte, and failing to
grant defendant's motion for a mistrial?
On April 15, 1992, defendant's counsel interviewed former
Department employee, Richard Duarte, by telephone. Mr. Duarte
stated that in 1985 or 1986 his stepson, Michael Clark, told him
that he found $32,000 in Wadsworth Park. Mr. Duarte then told
defendant's counsel that Michael was bragging and never found any
money. On April 15, 1992, defendant's counsel also interviewed Sue
Duarte, wife of Richard and defendant's former administrative
assistant. Mrs. Duarte stated that she knew nothing about Michael
finding $32,000.
During a second interview with defendant's counsel, Mr. Duarte
admitted that Michael found $3250 in a bag in Wadsworth Park. Mr.
Duarte suspected it was drug money. He stated tinat Xrs. Duarte
wanted him to turn the money in. Instead he hid the money in his
garage, and in 1986 he began to gamble the money away.
Defendant filed a motion to compel the deposition of Mr.
Duarte and Michael. The State filed a motion in limine to exclude
any testimony concerning the money found by Michael in 1985.
During the April 17 omnibus hearing, the court heard arguments on
this and other motions. The court questioned whether finding money
in 1985 was relevant to alleged crimes committed in 1989, 1990, and
1991. Defendant theorized that the money in question was not $3250
found in 1985 by Michael, rather, it was $32,000 stolen from the
Department by the Duartes during the years 1989, 1990, 1991.
The court allowed defendant to depose Mr. Duarte for the
purpose of determining when Michael found the money. Defendant was
not able to locate Michael for deposition. The court reserved
ruling on a motion to depose Mrs. Duarte for the purpose of
attacking her credibility. During his deposition, Mr. Duarte
testified that in 1985 Michael found $3250 in a bag in Wadsworth
Park. Mr. Duarte admitted that neither he nor his wife told the
truth about the money during their first interview with defendant's
counsel on April 15, 1992.
At trial, the court heard argument in chambers on the issue of
cross-examining Mrs. Duarte for t n purpose of attacking her
ie
credibility with prior inconsistent statements about Michael
finding money. While in chambers, the State asked permission to
question Lt. Warrington about information relevant to Michaei
finding the money. Lt. Warrington testified he iearned through a
tipster that in 1986 Michael Clark and another boy named LaVoie
found a large sum of money. The tipster informed Lt. Warrington
that the money belonged to a known drug dealer who was a neighbor
of the LaVoies. Mrs. LaVoie spoke with an attorney about the
money. Lt. Warrington contacted that attorney on the morning of
April 23, 1992. The attorney recalled speaking with Mrs. LaVoie
about the money six or seven years previously.
The court.decided that it would allow defendant to attack Mrs.
Duarte's credibility but limited cross-examination to her prior
inconsistent statements concerning her knowledge of whether her son
found any money. Defendant then moved for a mistrial in light of
the testimony of Lt. Warrington. The court denied this motion.
Mrs. Duarte testified that although she first denied any knowledge
of the money, she knew that Michael and a friend found a large sum
of money in 1985.
Defendant moved to introduce Mr. Duarte's deposition. The
court denied the motion, reasoning that since Mr. Duarte had
testified the money was found in 1985 any other testimony from him
would be collateral.
Defendant argues that limiting the cross-examination of Mrs.
Duarte violated his right to confront an adverse witness and
precluded him from proving his alibi.
The defendant's right to confront and cross-examine an adverse
witness is grounded in the Sixth Amendment to the United States
Constitution, and Article 11, Section 24, of the Montana
Constitution. However, limiting the scope of cross-examination
does not necessarily violate a defendant's right to confront an
adverse witness. Sloan v. State (1989) 236 Mont. 100, 104-05, 768
P.2d 1365, 1368. A trial court has broad discretion to limit the
scope of cross-examination to those issues it determines are
relevant to the trial. United States v. Kennedy (9th Cir. 1983),
714 F.2d 968, 973, cert. denied (1984)' 465 U.S. 1034, 104 S. Ct.
1305, 79 L Ed. 2d 704.
.
The District Court properly exercised its discretion by
limiting the cross-examination of Mrs. Duarte to the relevant issue
of her credibility.
Defendant further argues that the District Court committed
error by suppressing the deposition testimony of Mr. Duarte. Mr.
Duarte testified that in 1985 Michael Clark found $3250 which Mr.
Duarte believed to be drug money. The District Court excluded Mr.
Duarte's testimony out of a concern that introducing collateral
matters from 1985 into a trial about crimes that were committed
from 3 9 9 through 1991 would confuse the jury and result in
.8
unnecessary delay.
Our standard of review relating to discretionary trial court
rulings is whether the trial court abused its discretion in
allowing (or disallowing) the evidence. Steer, Inc. v. Dep't of
Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.
Admission of evidence is governed by the Hontana Rules of
Evidence. Rule 402, M.R.Evid., states in part: "Evidence which is
not relevant is not admissible." Rule 401 defines relevant as
"[elvidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
The District Court correctly determined that once Mr. Duarte
testified that Michael found the money in 1985, his testimony
became irrelevant, and therefore, the testimony was properly
excluded.
Defendant contends that his motion for mistrial should have
been granted following Lt. Warrington's in-chamber testimony about
Michael Clark and the found money.
"The standard of review for reversing a lower court's denial
of a motion for mistrial requires clear and convincing evidence
that the trial court's ruling was erroneous." State v. Gollehon
(1993), 262 Mont. 293, 302, 864 P.2d 1257, 1263; State v. Gambrel
(1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075; State v. Salois
(1988), 235 Mont. 276, 282, 766 P.2d 1036, 1310. Lt. Warrington's
testimony focused on the circumstances surrounding Michael Clark
15
finding money in 1985 or 1986 and Lt. Warrington's suspicion that
the money might have been drug money.
We hold that there was no clear and convincing evidence in the
record to show that the court's denial of defendant's motion for a
mistrial was erroneous.
ISSUE 4
Did the District Court err in refusing to dismiss or reverse
Counts I, 1x1, IV, and V of the information on the grounds of
insufficiency of evidence?
When the issue on appeal is whether there was sufficient
evidence to support a jury verdict, the standard of review 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. State
v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150.
Defendant was convicted of Count I, theft of golf course
driving range money, pursuant to 5 45-6-301(1)(b), MCA, which
provides:
(1) A person commits the offense of theft when the
person purposely or knowingly obtains or exerts
unauthorized control over property of the owner and:
. . .purposely
(b)
. or knowingly uses, conceals, or
abandons the property in a manner that deprives the owner
of the property ....
Defendant argues that his conviction was based solely on
circumstantial evidence that failed to establish his guilt beyond
a reasonable doubt. "A conviction may be based on circumstantial
evidence alone." State v. Bromgard (1993), 261 Mont 291, 295, 862
P.2d 1140, 1142; State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d
421, 423. "When circumstantial evidence is susceptible to two
interpretations, one which supports guilt and the other which
supports innocence, the trier of fact determines which is the most
rea~onable.~~
State v. Tome (l987), 228 Mont. 398, 401, 742 P.2d
479, 481.
Golf pro Bill Dunn testified that defendant instructed him to
withhold from the daily deposit one-third of the money collected
from the sale of driving range balls. Mr. Dunn was directed to
turn that money over to defendant. Defendant informed Mr. Dunn
that the money would be used for the Ice Breaker Run, the pet and
doll parade, and T-shirts. There is no record of this money being
deposited into City or Department accounts for these purposes, nor
is there any evidence to show that defendant used any of the
driving range money he collected for these purposes.
Based on the facts and circumstances, the jury, as trier of
fact, found that the most reasonable explanation for the missing
golf club membership money and the missing driving range money was
theft by defendant.
Defendant was found guilty of Count 111, felony theft of golf
lesson money belonging to Bill Dunn and Connie Crammer, pursuant to
5 45-6-301, MCA.
Dunn and Crammer taught winter golf lessons. Teaching winter
golf lessons was not part of their employment contracts with the
City. Students paid either instructor directly. Defendant
contends that he solicited financial contributions from Dunn and
Crammer to support the Ice Breaker Run and the pet and doll parade.
According to defendant, Dunn and Crammer voluntarily contributed
$3000 to $4000 per year to defendant. Dunn and Crammer testified
that defendant instructed them to turn over one-third of their golf
lesson money to him. There is no record of any portion of this
money being deposited into City or Department accounts. Viewed in
the light most favorable to t n prosecution, the evidence supports
ie
the jury's verdict as to Count III.
Defendant was found guilty of Count IV, theft of City golf
course membership money, pursuant to 5 45-6-301, MCA. Defendant
again argues that his conviction was based solely on circumstantial
evidence that failed to establish his guilt beyond a reasonable
doubt. As with Count I, we find that the jury, as trier of fact,
determined that the most reasonable interpretation of the
circumstantial evidence presented at trial was defendant's guilt as
to count IV.
Defendant was found guilty of Count V, tampering with public
records, pursuant to 5 45-7-208, MCA, which provides in part:
(1) A person commits the offense of tampering with
public records or information if he:
(a) knowingly makes a false entry in or false
alteration of any record, document, legislative bill or
enactment, or thing belonging to or received, issued, or
kept by the government for information or record or
required by law to be kept by others for information of
government ....
Golfers paid for City golf course memberships with cash,
check, or both. Dunn, or someone on his staff, would tabulate the
receipts from memberships sold and the amount of membership money
collected to be sure the two balanced out. Dunn testified that
they always balanced out. Defendant, rather than a park security
guard, picked up membership money with the daily deposit and report
and delivered them to the Department for Mrs. Floerchinger to
deposit. She testified that the amount of money she received from
defendant was usually less than the number of memberships sold.
Mrs. Duarte prepared an annual golf report which detailed the
number of City golf course memberships sold and the money deposited
into the Department account fromthose sales. Mrs. Duarte informed
defendant of discrepancies between the number of memberships sold
and the amount of money deposited. From 1983 to 1989, defendant
instructed Mrs. Duarte to change the number of memberships sold to
match the amount of money deposited.
The record supports a finding by the jury that defendant
tampered with public records by directing his assistant to
knowingly make false entries or alterations to the annual golf
membership report.
We hold that the District Court did not err when it refused to
dismiss or reverse Counts I, 111, IV, and V of the information for
insufficiency of evidence.
ISSUE 5
Did the District Court err in fining defendant his vacation
pay and sick leave pay and ordering those funds be paid to the
United Way of Cascade County?
Included in defendant's sentence the District Court ordered
the following:
The defendant's vacation pay in the amount of $7,089.30
and sick leave in the amount of $8,699.63 (total:
$15,788.93) are to constitute a fine hereby levied
against him. These funds shall be paid to the Great
Falls United Way.
Prior to the entry of judgment, but after the court made known
it intended to levy the fine, defendant's attorney notified the
court that it held a prior lien on defendant's sick leave and
vacation pay. It is not clear from the record that the defendant
is able to pay the fine levied by the court.
We remand for further proceedings on that part of the order
that levies a fine against defendant in accordance with
9 46-18-231, MCA, which states:
(1) Whenever, upon verdict or a plea of guilty, a person
has been found guilty of an offense for which a felony
penalty of imprisonment could be imposed, the court may
impose a fine, only in accordance with subsection (3),
and in lieu of or in addition to a sentence of
imprisonment. ...
....
(3) The court may not sentence a defendant to pay
a fine unless the defendant is or will be able to pay the
fine. In determining the amount and method of payment,
the court shall take into account the nature of the crime
committed, the financial resources of the defendant, and
the nature of the burden that payment of the fine will
impose.
(4) Any fine levied under this section in a felony
case shall be in an amount fixed by the court not to
exceed $50,000.
The court further ordered that the fine be paid to the Great
Falls United Way. We reverse and remand this part of the judgment
for further proceedings in accordance with 9 46-18-603, MCA, which
provides :
All fines and forfeitures collected in any court except
city courts must be applied to the payment of the costs
of the case in which the fine is imposed or the
forfeiture incurred. After such costs are paid, the
residue, if not paid to a justice's court or otherwise
provided by law, must be paid to the county treasurer of
the county in which the court is held and by him credited
as provided by law.
Affirmed in part, reversed in part, and rernandec: for
clarification.
We concur:
/-7
Justices
Justice Karla M. Gray, dissenting.
While I agree with most of the Court's opinion, I dissent on
the issue of the District Court" denial of Sullivan's challenge
for cause of juror Price. I would reverse on that issue.
I agree with the Court that our standard of review of a
district court's denial of a challenge for cause is whether the
court clearly abused its discretion. I disagree, however, with the
Court's statement of the level of juror prejudice which mandates
disqualification. The Court relies on Great Falls Tribune v.
District Court (l98Oj, 186 Mont. 433, 608 P.2d 116 and State v.
Lewis (1976), 169 Mont. 290, 546 P.2d 518. It ignores our recent
decision on challenges for cause--State v. Williams (1993), 262
Mont. 530, 866 P.2d 1099--and in so doing, reaches an erroneous
conclusion.
Section 46-16-115(2j(j), XCA, authorizes a challenge for cause
of a juror "having a state of mind in reference to the case or to
either of the parties that would prevent the juror from acting with
entire impartiality and without prejudice to the substantial rights
of either party." Here, Sullivan challenged juror Price on that
basis after voir dire examination.
The transcript of Mr. Price's voir dire reflects that Mr.
Price first stated he had his mind made up; then, that he really
did not know how it would be possible for him to set aside the
opinion he had already reached; then, that there was a possibility
that he either could or could not put aside everything he had
heard; and, finally, that it would be difficult for him to sit on
22
the case with a completely blank mind. At very best, this record
establishes Mr. Price's repeated expressions of concern about his
ability to be impartial.
The prosecution followed up by trying to rehabilitate Mr.
Price, To a question as to whether--if picked for the jury--he
would make his decision based solely on the evidence, Mr. Price
responded that "[i]f I sat through this court, I am going to make
my decision on what's in here." Then, the following two exchanges:
MR. HIJDSPETH: You can put what went on beforehand aside?
MR. PRICE: I think I could.
MR. HUDSPETH: Make your best efforts to do that which
means you will follow your oath as a juror?
MR. PRICE: Yes.
The best the prosecutor could do with Mr. Price was one firm answer
as to making a decision on the evidence, followed by two equivocal
answers of the "1 thin^" and "best efforts" mode. Mr. Price
ultimately sat on the jury and found Sullivan guilty of four of the
charged offenses.
We set forth new standards concerning denials of challenges
for cause in Williams just a year ago. Applying those standards
here mandates a conclusion that there is a reasonable possibility
that the denial of Sullivan's challenge for cause of juror Price
contributed to his conviction.
In Williams, the challenged juror candidly and repeatedly
expressed her concern about her ability to be impartial in the
case. In the face of those admissions of bias, we determined that
the district court's rehabilitation was, at best, unpersuasive, and
23
that the court abused its discretion in denying the challenge for
cause. 866 P.2d at 1152-03. To this point, Williams and
Sullivan's situation are essentially identical, except that here it
was the prosecutor's attempted rehabilitation that was
substantially less than persuasive.
We went on in Williams to reject a black-and-white rule that
an abuse of discretion regarding a challenge for cause is
conclusively prejudicial. Instead, we determined that: (1) where
an abuse of discretion occurs in denying a challenge for cause; and
(2) the party making the challenge is required to use a peremptory
challenge to remove the juror; and (3) the party uses all of his or
her peremptory challenges; then (4) a presumption of prejudice
arises. Williams, 8 6 6 P.2d at 1103. We stated we would balance
the presumption against the totality of the circumstances to
determine whether the error contributed to the defendant's
conviction. u. There, the question boiled down to whether, in
the face of basically uncontradicted evidence against the
defendant, his use of one peremptory challenge to remove the juror
who should have been removed for cause--leaving him five instead of
six--reasonably could have contributed to his conviction. We
concluded that it could not. Williams, 8 6 6 P.2d at 1104.
The case before us now mandates a different result. Here, the
juror challenged for cause actually sat on the jury. The evidence
was not uncontradicted or overwhelming on the offenses charged;
indeed, the jury acquitted on two counts. Sullivan used his
peremptory challenges on other jurors he was even more concerned
about than juror Price, including several he had unsuccessfully
challenged for cause. Under these circumstances, I conclude that
there is a reasonable possibility that the District Court's denial
of Sullivan's challenge for cause contributed to his convictions.
We emphasized in Williams that the facts of that case were
unique, and that the result in that case should not lead
prosecutors or district courts to any false sense of security in
future cases. We cautioned trial courts that "when voir dire
examination discloses a serious question about a juror's abilityto
be fair and impartial, that question should be resolved in favor of
excusing that juror." 866 P.2d at 1104-05. The Court's failure to
apply, or even cite to, Williams in this case essentially nullifies
that unanimous decision which less than a year ago changed our
approach to questions involving denials of challenges for cause.
It also results in a failure to provide Sullivan with a fair trial-
-which, at its most fundamental level, must surely mean a trial by
an impartial jury. I dissent.
September 12, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
George Robert Crotty, Jr.
Graybill, Ostrem & Crotty
No. 18 Sixth St. No., Ste. 200
Great Falls, MT 59401
Hon. JOSEPH P. MAZUREK, Attorney General
Micheal Wellenstein, Assistant
215 No. Sanders
Helena, MT 59620
Patrick Paul
Cascade County Attorney
Courthouse
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA