No. 94-002
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Appellant,
ANTHONY DAVID, 111,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Joseph P. Mazurek, Attorney General; Carol E.
Schmidt, Assistant Attorney General; Helena, Montana
Jane Mersen, Deputy County Attorney, Bozeman,
Montana
For Respondent:
Brian K. Gallik, and Robert K. Baldwin, Goetz,
Madden & Dunn, P.C., Bozeman, Montana
Submitted on Briefs: August 11, 1994
Decided: September 12, 1994
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana appeals from a ruling of the Eighteenth
Judicial District Court, Gallatin County, denying its motion for
leave to file an information charging the defendant with felony
stalking pursuant to § 45-5-220, MCA. We affirm.
The sole issue is whether the District Court abused its
discretion when it denied the State leave to file an information
charging defendant with felony stalking.
On November 24, 1993, the Gallatin County Attorney's office
filed a motion for leave to file an information charging Anthony
David, 111, with felony stalking in violation of 45-5-220, MCA.
The motion was accompanied by an affidavit of probable cause.
The affidavit set forth the alleged facts as follows. On
November 5, 1993, David assaulted Cindy Tadday (Tadday). David
left the Tadday residence in Tadday's car. Tadday immediately
applied for a temporary restraining order (TRO). The District
Court issued a TRO, and it was served on David that day.
On November 6, 1993, David telephoned Tadday. He left a
message on Tadday's answering machine that he intended to obey the
restraining order and that he was "not going to cause a single
problem.iv David also called Tadday's mother on November 6,
claiming he planned to make life "hellitfor her daughter. Later
that day he again telephoned Tadday" mother and apologized for the
earlier call.
Tadday left town on November 6 to avoid contact with David.
She stayed with friends and did not go to school or work. Tadday
returned home on November 17, 1993, and David repeatedly tel.ephoned
her that afternoon. Tadday was able to record portions of two of
these calls. In one call, David stated:
Please don't call the cops, my life's pretty short, my
life span is about as long as yours. I'm bringing
witnesses to prove that you beat me up. If you have
called the cops, I 'm fucked. But, I'm not at my house so
I have witnesses that say that I didn't [call]. Please
help me get over this. For me to get over this, this is
so humiliating, my life is over when your life is. Ah,
you know what I'm saying?
David telephoned Tadday between twelve and sixteen times that
afternoon.
Tadday told the Bozeman, Montana, police department that she
believed David was "crazy." Tadday stated that she feared him when
he was drinking and that she was "scared to deathw of him. Tadday
also feared that David would attempt to injure her dog.
The State moved the District Court for leave to file an
information on November 24, 1993. The court denied the motion on
November 29, 1993. The court ruled that probable cause was not
established. The court determined that the affidavit did not show
threats or intimidation. The court found that while some of the
telephone calls tcpossiblycould have been considered harassing,"
they were insufficient to create probable cause that David
committed felony stalking. The court also noted that the State had
other available means by which to charge David, such as breach of
the restraining order.
Issue
Did the District Court abuse its discretion when it denied the
State's motion for leave to file an information charging defendant
with felony stalking pursuant to § 45-5-220, MCA?
Leave to file an information shall be granted when probable
cause exists that an offense has been committed by an identified
suspect. Section 46-11-201, MCA. The probable cause determination
is left to the sound discretion of the district court. A determi-
nation of probable cause will not be reversed absent an abuse of
discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783
P.2d 1331, 1334. District court judges should use their common
sense when reviewing affidavits of probable cause. State v.
Thompson (1990), 243 Mont. 28, 30, 792 P.2d 1103, 1105. In
reviewing such cases, this Court has noted that "the reviewing
court must give special deference to judicial probable cause
determinations.'' State v Riley (1982), 199 Mont. 413, 423, 649
.
P.2d 1273, 1278.
In 1993 the Montana Legislature enacted legislation making
certain Mstalkingvv
activities illegal. Codified as 5 45-5-220,
MCA, the statute provides, in relevant part:
(1) A person commits the offense of stalking if the
person purposely or knowingly causes another person
substantial emotional distress or reasonable apprehension
of bodily injury or death by repeatedly:
(a) following the stalked person; or
(b) harassing, threatening, or intimidating the
stalked person, in person or by phone, by mail, or by
other action, device, or method.
Stalking is a felony if it is a second or subsequent offense, or if
the defendant was under a judicial restraining order at the time of
the alleged conduct. Section 45-5-220(3), MCA.
The affidavit fails to show that David followed Tadday. The
affidavit likewise does not show that David threatened or intimi-
dated Tadday. While the affidavit may indicate that David's
conduct might have been harassment, it was within the District
Court s discretion to determhe that the affidavit was insufficient
to show probable cause that David stalked Tadday.
The affidavit also presents no showing that David's alleged
stalking activities were the cause of Tadday1semotional distress
or apprehension. The affidavit does not state that Tadday feared
David because of the telephone calls: rather, the affidavit seems
to indicate just the opposite. Based on the affidavit, the
District Court could reasonably assume that Tadday's apprehension
of David was a product of their pre-existing strained relationship.
The affidavit states:
Tadday is afraid of the defendant when he is drinkinq.
Tadday has quit going to school and quit going to work so
the defendant cannot find her. Tadday told [detective]
Welsand she was ''scared to death." ... The defendant
has told Tadday in the wast that he would pour gasoline
an her dog and light the dog on fire. [Emphasis added.]
It was within the court's discretion to believe that Tadday's
apprehension was not caused by David's telephone calls on November
6 and 17, but rather from her previous relationship with him.
This Court has consistently deferred to the reviewing judge in
matters of probable cause determinations. In State ex rel. Juhl v.
District Court (1938), 107 Mont. 309, 312-13, 84 P.2d 979, 981, we
stated:
Obtaining leave to file an information without a previous
examination ofthe accused before a committing magistrate
is not a mere perfunctory matter which should be granted
as a matter of course, but rests in the sound discretion
of the district judge, upon the showing made to him.
..An abuse of discretion materially prejudicing a
substantial right of the accused would be grounds for
reversal ... the appellate court cannot presume that
the trial court exceeded its authority or abused its
discretion. [Citation omitted.]
Based on the affidavit, we conclude that the District Court did not
abuse its discretion in denying the State's motion for leave to
file an information charginy David with felony stalking.
We find no merit in the State's contention that the District
Court" suggestion of alternative charges against David violated
the separation of powers doctrine. Art. 111, Sec.1, Mont. Const.
The judge's closing remarks, "I think there is an adequate remedy
in this matter by breach of the restraining order or by breach of
the Justice Court order at the time of arraignment in another
case," did not constitute a violation of the separation of powers
doctrine. Such conduct did not infringe on the State's prosecuto-
rial discretion. The District Court's denial of the State's motion
was based upon a lack of probable cause and any statement concern-
ing alternative options available to the State should not be
construed as an attempt to dictate what charges the State may
bring.
Since we uphold the District Court's decision, we need not
address respondent's argument concerning the constitutionality of
5 45-5-220, MCA. We affirm the decision of the District Court.
.-
We concur: