State v. Romero

KO. 95-067

IN THE SUPREME COURT OF THE STATE OF MONTANA
1,096

STATE OF MONTANA,
Plaintiff and Respondent,
v.
AARON D. ROMERO,
Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Hon. Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Jack E. Sands, Billings, Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Cregg Coughlin,
Assistant Attorney General, Helena, Mofitana;
Christine A. Cook, County Attorney, Curtis L.
Bevolden, Deputy Big Horn County Attorney, Hardin,
Montana

Submitted on Briefs: April 11, 1 9 3 6
3ecided: November 6 , 1996
n
Justice james C. Nelson delivered the Opinion of the Court

Aaron D. Romero !Row.ero) appeals from the judgment entered by
the Thirteenth Judicial District C s ~ r t ,3iy Horn County, finding
him guilty of wasting or abandoning the carcass of an antelope in
the field, a misdemeanor, hunting elk while privileges are
suspended, a misdemeanor, hunting bear while privileges are
suspended, a misdemeanor, and hunting antelope while privileges are
suspended, a misdemeanor. We affirm.
ISSUES
1. Did the District &urt err by denying Romero's motion to
dismiss the State's appeal from Justice Court?
2. Did the District Court deny Romero his right to a speedy
trial?
3. Did the District Court err in denying Romero's motion to
disaiss based on his claim of outrageous government conduct?
4. Did the District Court abuse its discretion in denying
Romero's motion to dismiss based on an alleged discovery violation?
5. Did the District Court abuse its discretion when it denied

Romero's motion to exclude testimony of Officer Long based on the
State's refusal to produce Long's file?
6. Did the 2istrict Court abuse its discretion in denying
Romero's motion to prohibit the State from introducing exhibits at
trial based on an alleged discovery violation?
7. Did the District Court err in denying Romero's motion for
a mistrial or dismissal of the charges based on an alleged
discovery violation?

2
 8. Did. the District Court err in permitting the State to
amend the citations after trial had started?
BACKGRO3ID
As part of its effclrts to curb criminal trafficking of
wildlife, the criminal investigation section of the Montana
Department of Fish, Wildlife & Parks assigned Officer Long (Long)
to investigate illegal guided hunts on or near the Crow Indian
Reservation. Long posed as a Great Falls businessman and met with

William Hugs (Hugs) at a Billings taxidermy shop where he purchased
a live bear cub from Hugs. Long also set up guided hunts on the
Crow Reservation for bear, deer, and antelope. At that time, Long
focused his investigations on Hugs.
On April 17, 1993, Hugs took Long to hunt with Romero at a
lake near Fort Smith. Romero supplied the boat. The group hunted
the water's edge where Romero claimed to have killed bears

previously, but they did not find any game that morning. That
afternoon, the group went "four-wheeling,"but again saw no game.
On May 8, 1993, Hugs, Long, and Romero used Romero's boat to
hunt the same lake shore they had hunted in April. They spotted a
black bear near the shore; both Long and Hugs shot at it but did
not kill the bear. Romero remarked that he was about to get out
his gun to help kill the bear, but did not take a shot. Shortly
thereafter, Hugs instructed Long to kill a mule dear near the shore
and leave it for bear bait. In the afternoon, the party hunted
from Long's vehicle in the Pryor Mountains. Hugs and Romero saw
elk and hunted them on foot because Long said he did not want to
hunt them. However, Long watched Romero and Hugs stalk and ehcot
at the elk, killing one and woundkg another. Romero and Hugs told
Long to leave the front qaarter of the elk because it did ~ o have
t
encugh meat to warrant the trouble of packing it out with them.
The i?ollowing morning, the party returned to the site of the elk
kill to see if any bear were feeding on the carcass. Although they
did not see a bear at the carcass, they saw a cinnamon black bear
on a nearby hill and shot at it but missed.
In August of 1993, the Department of Fish, Wildlife & Parks
charged Romero with the following five misdemeanor fish and game
violations: hunting elk while privileges were suspended in
violation of S 87-1-102 , MCA; hunting bear while privileges were
(f)
suspended in violation of S 87-1-102 , MCA; wasting or abandoning
(f)
the carcass of an antelope doe in violation of 5 87-3-102, MCA;
hunting antelope while hunting privileges were suspended in
violation of 5 87-1-102 , MCA; and wasting or abandoning part or
(f)
parts of a big game animal, a bull elk, in violation of 5 87-3-102,
MCA. At the Justice Court trial, Xomero moved to dismiss, claiming
entrapment, outrageous government conduct, and failure to provide
exculpatory evidence. The State had not produced the videotape of
the May 9, 1993 hunt because Long was still undercover and the tape
could have jeopardized his investigations and his safety. Based on
a written stipulation between Romero and the State, the State
edited the tape to obscure Long's identity. Romero moved to
dismiss the case in part because he was displeased with the manner
in which the State edited the tape. On November 30, 1993, the
Justice Court heard Romero's motion, cleared the col;rtraom, and
viewed the videotape. In response to Romero's motion to dismiss,
che State told the Justice Court that it would neither concur in

nsr oppcse the motioc. Therefore, the Justice Court dismissed the
case.
The State immediately appealed to the District Court. On
February 3 , 1994, Romero moved to dismiss the appeal before the
District Court because the State had not opposed the motion in
Justice Court. In an order dated April 6, 1994, the District Court
denied Romero's motion to dismiss the appeal.
Following the March 28, 1994 omnibus hearing, Romero moved to
dismiss the charges on grounds of lack of a speedy trial,
outrageous government conduct, entrapment, and failure to provide
exculpatory evidence. The District Court heard the motions on
April 25, 1994 and May 10, 1994. At the conclusion of the hearing
on May 10, 1994, the State requested a transcript of the proceeding
which was not prepared until August 1994. The District Court gave
Romero until September 20, 1994, to respond. On November 3, 1994,
the District Court denied Romero's motions to dismiss and set trial
for November 28, 1994. Following three days of trial, a jury found
Romero guilty of four of the five misdemeanor fish and game
charges. The District Court sentenced Romero to a term of
imprisonment for each ccunt, but suspended the prison sentences on
the condition that he pay a fine. The District Court further
suspended Romero's hunting, fishing, and trapping privileges for

three years.
 CISCC'SCION

1. Did the District Court err by denying Romero's motion to
disrnLss the State's appeal frcm Justice Court?
Romero claims that §§ 46-1.7-311 and 46-20-103,MCA, limit the
State's right to appeal from a justice court decision.
Specifically, Romero's argument is three-fold. First, he argues
that the State lost its statutory right to appeal from the order
dismissing the charges when it did not object to Romero's motion to
dismiss. Second, he argues that the State is precluded from
appealing the Justice Court order because the State failed to
preserve its objection in Justice Court. Third, he argues that the
District Court should have granted the motion to dismiss under the
doctrine of "invited error." The State counters that Romero's
claims are without merit and that the District Court properly
denied 2omero's motion to dismiss the appeal. The State contends
that its statutory rights to appeal and to a district court trial
de novo are clearly defined and may not be restricted.
A district court's denial of a motion to dismiss is a legal
issue that we review to determine whether the district court's

interpretation of the law was correct. State v. Bullock (1995!,
272 Mont. 361, 368, 901 P.2d 61, 66.
Article Vli, Section 4 (2) of the Montana Constitution provides
that the district court "shall hear appeals from inferior courts as

trials anew unless otherwise provided by law." Section 46-17-311,
MCA, provides for appeals of criminal cases arising in justice
court. Section 46-17-311, MCA, sets forth the following:
 Appeal from justices', municipal, and city courts,
!ij Zxcept for cases ir, which legal issues are preserved
for appeal pursuant to 46-12-204, ail cases on appeal
from a justice's or ciry court must be tried anew in the
district court . . . .
(2) The defendant may appeal to the district court
by filing written notide of intention to appeal within 10
days after a judgment is rendered following trial. In the
case of an appeal by the prosecution, the norice must be
filed within 10 days of the date the order complained of
is given. The prosecution may only appeal in the cases
provided for in 40-20-103.
Section 46-20-103, MCA, governs the scope of appeal from justice
court and provides the following:
Scope of appeal by state. (1) Except as otherwise
specifically authorized, the state may not appeal in a
criminal case.
(2) The state may appeal from any court order or
judgment the substantive effect of which results in:
(a) dismissing a case . . . .
In State v. Kesler (1987), 228 Mont. 242, 741 P.2d 791, this

Court construed both § 46-17-311, MCA, and § 46-20-103, MCA. In
Kesler, the appellant argued that the statutes were ambiguous as to

whether they require the district court to conduct a trial de novo.
Kesler, 741 P.2d at 793. We noted that when the legislature
amended § 46-17-311, MCA, it i~tendedto overrule our decision in
State v. Sanchez (1980), 187 Mont. 434, 610 P.2d 162, wherein we
held that the State has no right to appeal the final decision of a
justice court in a criminal case. Kesler, 741 P.2d at 793.
Therefore, in overruling Sanchez, the legislature specifically
provided for the State to appeal from a decision in justice court
and provided that all appeals from justice court require a trial de
covo in dlstrict courr. Kesler, 741 P.2d ac 793
 In State v. Yarns (1992), 252 Mont. 45, 826 P.2d 543, the
State contended that the district court exceeded its constitutional
and stat3ztcry authsrity by reviewing the justice court's order and
remanding the case for trial, rather than by ccnducting its own
trial de novo. , 826 P.2d at 545. Citing Arnicle VII,
Section 4(2) of the Montana Constitution and §§ 46-17-311 and 46-
20-103, MCA, this Court stated that "a district court does not have
appellate jurisdiction to review a justice court order suppressing
evidence and that the clear .legislative intent of § 46-17-311,MCA,
is tc require a trial de novo on all appeals from justice court."
Yarns
- r 826 P.2d at 545.
In the instant case, the District Court correctly interpreted
§ 46-20-103, MCA, to allow the State to appeal from the Justice
Court's order which resulted in dismissal of the case. Neither §

46-17-311,MCA, nor § 46-20-103,MCA, requires the State to object
to a defendant's motion to dismiss and we therefore decline to
insert such a requirement where the legislature saw fit to leave
that requirement out. The statutory language is clear.
However, Romero also argues that the State did not preserve
its right to appeal because it did not object to Romero's motion to
dismiss. The State counters that there is no record in justice
court in which to preserve an objection and further that there is
no need to preserve the record because on appeal the matter is
tried anew. In prior opinions, this Court has required a party to
preserve the right to appeal by making a contemporaneous objection
in trial court. See State v. Greytak (19931, 262 Mont. 401, 865
P.2d 1096. H o w e v e r , we have r e ~ ~ i r c dparty to preserve error for
a
an appeal only when that party appeals from the district court to
this Court. The ratlonale behind the requirement is co preserve
the alleged errors on record, for a reviewing court to determine if
the lower court did indeed commit error. In the instant case, -he
State had a statutory right of a.ppea1 from the dismissal of its
case in Justice Court and the District Court was required to try
the case anew. Therefore it was unnecessary for the State to
preserve error by objecting to the dismissal at the Justice Court
level.
Consequently, Romero's third contention, "invited error," also
fails because the State did net appeal an error in the Justice
Court but instead appealed for a trial de novo. Because a district
court does not review either legal or factual determinations of the
justice court, but must conduct a trial de novo, the doctrine of
"invited error" does not apply in the instant case. Accordingly,
we hold that the District Court correctly denied Romero's motion to
dismiss the State's appeal from Justice Court.
2. Did the District Court deny Romero his right to a speedy
trial?
Romero claims that the District Court denied him his
constitutionally protected right. to a speedy triai. The State
argues to the contrary, asserting that Romero caused the delay and
that he was not denied his right to a speedy trial. A speedy trial
claim is a question of cor,stitutional law. State v. Cassidy
ii978j, 176 Mont. 385, 388, '578 P.2d 735, 737. We review questions
of law de ncvo to determine whether the court's interpretation of
the law is correct. Carbon County v. Union Reserve Coal Co., Inc.
!1995;, 271 Monr. 459, 465, 898 P.2d 680, 686; Steer, Inc. v.
Departmen: of Revenue ,1393). 245 Mont. 470, 474-75, 803 P.2d 6C1,

"Montana law requires a defendant who is charged with a
misdemeanor to be brought to criai within six months after entry of
plea." State v . Sunford (1990), 214 Mont. 411, 415, 796 P.2d 1084,
1086. Section 46-13-401(2Ie,
MCA, provides:

(2) After the entry of a plea upon a misdemeanor charge,
the court, unless good cause to the contrary is shown,
shall order the prosecution to be dismissed, with
prejudice, if a defendant whose trial has not been
postponed upon the defendant's motion is not brought to
trial within 6 months.
However, this six-month rule does not apply in circumstances where
the defendant is tried in justice court and the judgment is
appealed for trial de novo in district court. Sunford, 796 P.2d at
1086 (citing State v. Schneil (19391, 107 Mont. 579, 582, 88 P.2d
19, 20). "Once an action is appealed from justice to district

court, it is treated as if it were a new trial." Sunford, 796 P.2d
a . 1087. Moreover, in State v. Crane (1989), 240 Mont. 235, 238,
t

784 F.2d 901, 903, this Court held that the statute and thus the
six-month period does not apply to instances where the defendant
caused the delay or requests a postponement.
This Court has held that where a defendant is tried in justice

court within six months from the date of his or her initial
appearance and "then appealed to district court for a c r - i a i cie
novo, S 46-13-401!2), KCA, was inapplicable to the proceedings in
i0
district court, but that the time for conducting a trial in the
district court is controlled by the criteria established in Barker
V. &;rqe
V ' !1972;, 407 U.S. 5 L 4 , 5 2 3 , 92 S.Ct. 2182, 2188, 33 L.Ed.2d

101, 112-13." Stzte v. E-allock (19951, 272 Mont. 361, 368, 931
P.2d 61, 66. Barker sets forth a four-part test to determine
whether a court denied a defendant the right to a speedy trial.
Those four criteria are: 1) the length of the delay; 2) the reason
for the delay; 3) the assertion of the right by the defendant; and
4) the prejudice to the defense. Sunford, 796 P.2d at 1087 (citing
Barker, 407 U.S. at 530); see also State v. Eklund (1994), 264
Mont. 420, 424, 872 P.2d 323, 325-26.
The first part of the test, the length of delay, is of primary
importance. To determine the length of delay, this Court has
looked to the overall time between the justice court order that

allowed the State to appeal to district court and the commencement
of the trial in district court. Sunford, 796 P.2d at 1087.
Therefore, "the time for calculating the length of delay commences
on the date that the State files its notice of appeal from justice
court." Bullock, 901 P.Zd at 67. We calculate this time period
without regard to the reason or fault for the delay. Eklund, 872

p.2d at 326. The facts of each case dictate whether the length of
delay is presumptively prejudicial. However, if the length of
delay is ever 200 days, the delay is presumptively prejudiciai and
reqnires further analysis. Eklund, 872 P.2d at 326.
In the znstant case, the State filed its notice of appeal from
Justice Court on November 30, i993. The District Court initially

1.
3
scheduled the trial for May 2, 1994. When, on April 25, 1994, the
District Coart oral-ly denied Romero's motion to dismiss based on
Lack of a speedy trial, the scheduled trial was only 153 days from
the date the State had filed its notice of appeal and 153 da~ysis
not presumptively prejudicial. See Bullock, 901 P.2d at 67 (176
days is not presumptively prejudicial) ; State v. Nelson !l991! , 251
Mont. 139, 822 P.2d 1086 (165 days is not presumptively
prejudicial!. Notwithstanding, since Romero's trial was not
actually held until 363 days from the date the State appealed, we
must address the other three parts of the four-part test.

In considering the second part of this test, reason for the
delay, we allocate the delay by determining the delay attributable
to each party. State v. Matthews, (1995!, 271 Mont. 24, 28, 894
P.2d 285, 287. In the instant case, the District Court charged the
delay from April 25, 1994, to the trial date of November 28, 1994,
to Romero. On April 25, 1994, Romero moved to dismiss the case and
his motion required an extensive evidentiary hearing, preparation
of transcripts, and additional briefing. Romero was not

responsible for the first 146 days of delay, from November 30,
1993, to April 25, 1994. However, Rornero's motion to dismiss
caused the remaining 217-day delay. See State v. Weeks (19953, 270
Mont. 63, 72-73, 891 P.2d 477, 483. Moreover, Romero did not
object to the District Court's order vacating the trial date and
continuing the evidentiary hearing. The State neither requested a
continuance nor filed any motions that delayed Romero's trial. In
fact, the transcript indicates that the State was concerned about
ensuring that RGlerO receive6 a prompt trial. Therefore, we
concl-adc that the District. Court properly a11,ocated : e
h 217-day
deiay to Romero.

Romero met the third part of the Barker tcsc, assertion of the
right to a speedy trial, by timely filing his motion to dismiss
based on a lack of a speedy trial. In considering the fourth part
of the test, prejudice to the defendant, this Court has identified
three factors in determining prejudice : 1) prevention of oppressive
pretrial kcarceration; 21 minimization of the defendant's anxiety
and concern; and 3) avoidance of impairment of the defense.

Matthews, 894 P.2d at 288. Impairment of the defense is the most
critical of these three factors.

Romero was not subjected to pretrial incarceration or arrest.

While he contends that he sSffered anxiety and concern, the record
does not show that his anxiety and concern were a result of delay
so much as a result of being charged, nor does the record show that
he suffered undue anxiety or concern. Additionally, there is no
evidence showing that the delay impaired his defense. All of
Romero's witnesses testified and each claimed no loss of memory.

After applying the four-part Barker test, we conclude that the
District Courc correctly interpreted the law in denying Romero's
motion to dismiss based on a lack of a speedy trial.
3. Did the District Court err in denying Romero's motion to
dismiss based on his claim of outrageous government conduct?
Romero claims that the District Court erred in denying his

motion co dismiss based oL his claim of outrageous government
conduct. Specifically, Romero claims that Long's hunting, taking,
and wasting game as part of his undercover operation constituted

ntrageous canduct rhat should have precluded the State from
prosecuting him. The State ccntends that the District Court did
not err because Long's behavior did not meet the standard ~f

outrageous government conduct.
We review a district court's denial of a motion to dismiss to
determine whether the district court's interpretation of the law

was correct. State v. Bullock (l99S), 272 Mont. 361, 368, 901 P.2d
61, 66.
The Due Process Clause of the Fifth Amendment prohibits a
state's involvement in a criminal enterprise that is "so grossly
shocking and so outrageous as to violate the universal sense of
justice." United States v. Smith (9th Cir. 1991), 924 F.2d 889,
897; see also United States v. Russell (19731, 411 U.S. 423, 431-

32, 93 S.Ct. 1637, 1642-43, 36 L.Ed.2d 366, 373. In a 1986 case,
the Ninth Circuit Court of Appeals stated:
[in addition to police brutality1 We have held that law
enforcement conducr. also becomes constitutionally
unacceptable "where government agents engineer and direct
the criminal enterprise from start to finish," . . . or
when governmental conduct constitutes "in effect, the
generation by police of new crimes merely for the sake of
pressing criminal charges against the defendant."
United States v. Bogart (9th Cir. 1986), 783 F.2d 1428, 1436,

vacated on other grounds sub nom. United States v. Wingender (9th
Cir. 1986), 790 F.2d 802. However, the doctrine is a "most narrow"
defense. State v. Briner ii992), 253 Mont. 158, 164, 831 P.2d
1365, 1369. Therefore, the protection afforded by the Due Process
Clause applies only when "the Governrne~t activity in question

violates some protected right of the defendant." State v. Haskins
(i592), 255 N o r i t . 2 D 2 , 206, 841 F.2d 542, 546 (quoting Kampton v.
<ed
vr ' States (19761, 425 U.S. 484, 490, 96 S.Ct. 1646, 1650, 43

L.Ed.2d 113, 119).
In its findings of fact, conclusions of law and order, the
District Court noted that if Romero was not the focus of the
investigation and became involved because Hugs asked him, he may
not have standing to raise a claim of outrageous government
conduct. The District Court cited to Bociart, where the Ninth
Circuit Court of Appeals held that two parties that were not
targets of the government's conduct did not have standing to raise
a due process violation suffered by the third party that was the
target of the investigation. Bosart, 783 F.2d at 1433 (this
opinion was later vacated and remanded when one of the parties,
Wingender, petitioned for rehearing on the basis that the
government had targeted him along with Bogart, thus giving
Wingender standing to raise an outrageous government conduct
claim); United States v. Emmert (9th Cir. 19871, 829 F.2d 805
(holding that co-defendant lacked standing to object to the
government's activities in this case since he was never an actual

target of the investigation).
Similarly, Romero was never the focus of the undercover
operation. The transcript in the instant case indicates that the
undercover operation focused on Eugs and that the investigation
involved Romero only because Hugs included Romero on the hunts.
The evidence does not establish that the State targeted Romero in
its investigation. Accordingly, we conclude that the District
..r
P-, .-
- , . t ccrrectly deriied Romero's rnorion to dismiss because Romero

iacked standing to raise a claim of outrageous gcvernment ccnduct.

Moreover, there is no evidence that the State engineered the
criminal enterprise in which Romero was involved or generated

crimes merely for the sake of prosecuting him. Accordingly,
Romero's outrageous government conduct claim must fail.
4. Did the District Court abuse its discretion in denying
Romero's motion to dismiss based on an alleged discovery violation?
Romero claims that the State refused to provide him with an
unedited copy of the videotape of the May 9, 1993 hunt, and
therefore, the District Court erred in denying his motion to
dismiss based on a discovery violation. The State contends that
Romerc's motion is without merit. Again, we review a district
court's denial of a motion to dismiss to determine whether the
district court's interpretation of the law was correct. State v.

Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66.
Section 46-15-322, MCA, allows a prosecutor to impose

reasonable conditions on the disclosure of physical evidence
Section 46-15-322, MCA, provides the following:
(I) Upon request, the prosecutor shall make available to
the defendant for examination and reproduction the
following material and information within the
prosecutor's possession or control:
. . .
id) allpapers, documents, photographs, or tangible
objects that the prosecutor may use at trial or that were
obtained from or purportedly belong to the defendant; and
 (3) The pro~e~iltor may impose reasonable
conditions, including an appropriate stipulation
concerning chain of custody, to protect physical evidence
produced under subsection (1)(d! .
However, "lsluppression of evidence by the State of facts that
would be favorable to the defendant constitutes a violation of
defendant's due process rights." State v. Gollehon (1993), 262
Mont. 1, 13, 864 P.2d 249, 257 (citing Brady v. Maryland (1963),
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215). The State must
intentionally or deliberately suppress this evidence, or "Brady
Material," for the suppression to be a due process violation per

se. Gollehon, 864 P.2d at 257.
In the instant case, Romero requested information, including
the videotape, concerning the activities of Long. The Stat*

originally refused to provide this information. Romero claims that
the State's failure to initially provide Romero with the videotape
and then only in an edited version, particularly when it introduced
the subject of Long's professional record, violated Romero's due
process r ghts. In summary, Romero contends that by editing the
videotape the State suppressed evidence that would have been
favorable to Romero.
The tate counters that Romero failed to show that the State
failed to provide exculpatory evidence. In fact, the State claims
it fulfilled its obligations under § 46-15-322, MCA, by allowing
Romero's counsel to view the unedited tape. There is no evidence
chat the State tampered with the tape. Rather, the State showed
that Lorg's safety was at risk while he was still in an undercover
capacity.
17
 Romero alsc objects to the order permitting his expert to
independently examine the videotape because the hearing had already
ended. However, Rcrnero does not even now suggestthat in his
expert's opinion, the State tampered with the tape. Moreover, if
Romero had evidence of tamperinq, he could have requested that the
District Court reopen the hearing. Romero did not present evidence
of tampering, nor did he request the hearing reopened. Because
Romero presents no evidence that the State committed a discovery
violation, the District Court correctly denied Romero's motion to
dismiss. Accordingly, we conclude that the District Court did not
abuse its discretion in denying Romero's motion to dismiss based on
an alleged discovery violation.
5. Did the District Court abuse its discretion when it denied
Romero's motion to exclude testimony of Officer Long based on the
State's refusal to produce Long's file?
Romero contends that the District Court erred in denying his
motion in limine and in allowing Long to testify when the State had
not produced his personnel file. Romero requested Long's personnel

file and his monthly activity reports. On September 6, 1994, the
deputy county attorney advised Romero that he would not provide the
personnel file. Romero did not seek to compel the production of
the file but instead filed a motion in limine on November 21, 1994.
We review a district court's discretionary ruling such as
admission of evidence for an abuse of that discretion. State v.
Burns (1992!, 253 Mont. 37, 42, 830 P.2d 1318, 1322.
 Secticn 46-15-322!5),.MCA, governs tne procedure for the
prasecution to disclose discovery. Section 46-15-32215), MCA,
pr.micles the foliowing regarding information for which the
defendant shows he has substantial need:
(5) Upon motion showing that the defendant has
substantial need in the preparation of the case for
additional material or information not otherwise provided
for and that the defendant is unable, without undue
hardship, to obtain the substantial equivalent by other
means, the court, in its discretion, may order any person
to make it available to the defendant. The court may,
upon rhe request of any person affected by the order,
vacate or modify the order if compliance would be
unreasonable or oppressive. The prosecutor may not be
required to prepare or di-sclose summaries of witnesses'
testimony.
In the instant case, the District Court advised Romero that 5 46
15-322(5), MCA, requires that Romero apply for and secure a court
order compelling discovery of Long's personnel file. Romero did
not file a motion with the District Court for production of the
personnel file. gad Romero moved for production of discovery, the
District Court could have analyzed whether Romero had a substantial
need for the information.
We conclude that Romero failed to move the District Court for
production of the information and failed to demonstrate a basis for
obtaining Long's personnel file. Therefore, the District Court
appropriately denied Romero's motion in Limine made shortly before
trial in an effort to prevent Long from testifying
6. Did the District Court abuse its discretion in denying
Romero's motion to prohibit the State from introducing exhibits at
tria.1 based on an alleged discovery violation?
 Romero contends that the District Court erred in denying his
mction to exclude a photogaph of him with a dead elk and records
dcrmrxtratirig a Fast s-uspensior-of his hunting license. Romero
argues that this evidence was prejudicial and that the State was
required to notify him that it would introduce those items as
exhibits. The State counters that it provided Romero with these
items when it produced its discovery and that the State is not

required in discovery to list the specific items it will seek to
introduce at trial.
Rulings on admissibility of evidence are left to the sound
discretion of the trial court. State v. Stringer (1995), 271 Mont.
367, 374, 897 P.2d 1063, 1067. We review a district court's
evidentiary rulings to determine whether the court abused its
discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d
1257, 1263.
Section 46-15-322(lj(d), MCA, governs the information the

prosecutor is required to make available to the defendant.
Specifically, § 46-15-322(1)(d), MCA, provides:
il) Upon request, the prosecutor shall make available to
the defendant for examination and reproduction the
following material and information within the
prosecutor's possession or control:
. . .
(d) all papers, documents, photographs, or tangible
objects that the prosecutor may use at trial or that were
obtained from or purportedly belong to the defendant . . . .
In the instant case when the State did not provide a list of
the specific exhibi-tsit intended to offer into evidence at trial,
Rnmero moved to exclude a photograph and a document showing a past
suspension of his hunting license. The nistrict Court denied both
20
motions. Section 46-15-322(13 id! , MCA, requires the State to make
available all documents and photographs that it "may" use at trial.
Iu this case, the State did so. The statute does not require the
State tc specify which of the dccuments produced in discovery it
will introduce at crial and the State bas no obligation to
introduce all or any of the documents simply because of its
obligation to produce them. Accordingly, we hold that the District
Court did not abuse its discretion in denying Romero's motion to
exclude evidence.
7. Did the District Court err in denying Romero's motion for

a mistrial or dismissal of the charges based on an alleged
discovery violation?
Romero claims that the State violated the discovery statute,
§ 46-15-322(1)(b), MCA, by not disclosing Officer Scott's testimony
that Romero confessed to the charges and that the District Court
erred by not granting a mistrial based on this testimony. The
State argues that Romero did not establish a discovery violation
and further that he failed to show that there was a "manifest
necessity" to declare a mistrial.
The standard of review for denial of a motion for a mistrial
is whether there is clear and convincing evidence that the district
court's ruling is erroneous. State v. Greytak (19931, 262 Mont.
401, 404, 865 ~ . 2 d
1096, 1098. Moreover, a motion for a mistrial
will be granted only when there is either a demonstration of
manifest necessity, or where the defendant has been denied a fair
 . -
and inpartial trlal. State v . Ford (M3nt. No. 95-158, decided

Section 46-15-322(1)(b;,MCA, thz discovery statute, provides
i l part :
i

(1) Upon request, the prosecutor shall make available to
the defendant for examination and reproduction the
following material and information within the
prosecutor's possession or control:
(b) all written or oral statements of the defendant
and of any person who will be tried with the defendant.. .
In this case, the State did not provide Romero with the statements
that Romero allegedly made to Officer Scott confessing to the

crimes charged. Therefore, Officer Scott's testimony regarding
Romero's confession surprised Romero at trial. However, on cross-
examination, Xomero's counsel revealed that Romero had not
literally confessed, but that Officer Scott merely inferred that
Romero had confessed. A portion of the cross-examination follows:

Q. [Romero's counsel! Is that your report?
A. [Officer Scott] Yes, that's a copy of that transcribe
interview.
Q. Can I look at it? I was looking for it in there and I
couldn't find it. There's nothing in this report that says
that Aaron Romero admits to any of these violations, is there?
A. Nothing on tape, counselor
Q. Notning on tape and nothing in the report, is there?
A. This isr't my--this isn't my report. This is a brief of
the taped interview and my involvement with the case.
Q. That's the only thing that I've got in this case that
you've said. Is there something else?
A, No, this is it. My recollections of Mr. Romero's
conversation with me on August 5th was that he admitted
-
LO the ~ i r e n x h a t was alleged tc have co~mitted the
he on
complaints, and that's what my answer was, counselor.

Q. Weli, then why didn't you record it--write it-- report
that in .fc-Lv repcrt?

A. I 2on't know. It certainly would indicate to me that
1'
:s --lt's assumed that ne admitted to that in my reports.
Q. I don't understand that. You're saylng that--this report
1s all that yoc have of your recollection of the events that
occurred on August 5th, 1993; Isn't that true?
A. That's true.
. And not once in there, either in the tape-recorded
portion or in the part that you wrote of your recollection of
the events, is there any indication that Aaron Romero admitted
to these five Fish and Game violations, is there?
A. I believe what I was referring to, Mr. Sands, is
that in my report where I advise in here that he was
explained the process and the NTA --the NTAs were
explained to him, and the NTA's were in reference to the
fact thar those were, in fact, true, yes.

Q. That doesn't say that.
A. Well, that's what I indicated in my report, sir.
Q. Where did you indicate that?
A. When I refer co that he was--
Q. Read it to me.

A. The procedure to make an appearance before the judge in
Big Horn County, the appearance dates and some times the judge
hears appearance. Romero acknowledges that. He said he would
enter a plea the following week. Says Aaron Romero had moved
here recently from California. Said his dad would make
payments for the fines and at least make time payments on
L
hose fines. Now, if he's indicating he was going to pay the
fine, couriselor, I would indicate that that admits guilt.
That's what I'm referring to.

. I ' m asking you to read me the parts that you say where he
admirzed r o this.
 Q. And that's it?
A. His father w o ~ l d
make payments for his fines and would at
least make Lime payments on the fines.

Q. Yoc're just saying that you inferred--or you assumed--
A. Yes, sir.
Q. --because he made some reference to his father maybe
helping pay some fines that he might--that he was pleading
guilty to all of them?
A. That's correct.
Based on this discussion, the District Court correctly found
that any prejudice from Officer Scott's testimony was removed by
Romero's counsel ~hroughcross-examination. Moreover, the report
from which Officer Scott made the inference of a confession was
available to Romero in pretrial discovery and Romero did not make
a contemporaneous objection to Officer Scott's testimony at trial.

Consequently, we conclude that Romero failed to meet his burden of
showing clear and convincing evidence of error by the District
Court.
Accordingly, we hold that the circumstances of this case did

not warrant a mistrial and the District Court did not err in
denying Romerg's motion.
8. Did rke District Court err in permitting the State to
amend the citati~nsafter trial had starced?

In its nocice to appear and complaint, the Srate charged
Romero with five misdemeanor offenses. Three of the complaints
cited to the w r o ~ g statutes. The District Co1urt permitted. the
State to amend the citations to reflect the correct statutory
24
sections. However, Rcmero claims that the District Court erred in
allowing the State to amend the citations and should have dismissed
the charges based on the incorrect citazions.
We have he13 that '$when
the facts, acts and circumstances are

set forth with sufficient certainty to constitute an offense, it is
not a fatal defect that the complaint gives the offense an
erroneous name." State v. Collins (1987), 226 Mont. 188, 191, 734
P.2d 686, 688-89. Similarly, an erroneous statutory reference will
not invalidate a charge. Collins, 734 P.2d at 689. In Collins,
the State erroreously cited to § 61-5-212,MCA, in the information.
However, the facts and circumstances described in the same
information unnistakably alleged a violation of 5 61-11-213,MCA.
This Court reiterated that the specific acts charged and not the
name of the siatute control.
In State J. Later (1993), 260 Mont. 363, 860 P.2d 135, the
information alleged that' the defendant committed official
misconduct ic -j-iolaticn
cf § 7-4-2511,MCA, and § 7-32-2144, MCA.

However, when the parties settled the jury instructions, the State
conceded that g 7-4-2511,MCA, and § 7-32-2144,MCA, had been cited
in error and that § 7-32-2143,MCA, was the applicable statute. We
held that the amendment was one of substance, because it
substantially altered the nnderlying offense. We clarified that
oar decision did not dilute the principle that ar, erroneous
statutory reference will not invalidate the charge. Later, 860
P.2d at 137.
 in the j-nstant case, the ccmplaint erronemsly cited to the

penalty statutes rather than the substantive statutes. However,
the facts clearly set forth that Romero was charged with hunting
elk, hear, a n 5 antelope while his privileges were suspended. The
cornplainrs correct1.y named the offense, but incorrectly cited the
penalty statxtes rather than the substantive statutes. The
amendments tc the citations did not prejudice Romero's substantial
rights because the complaints clearly established the facts and
acts for which Romero was charged. Because the complaints
described an6 gave notice. of the offenses, we hold that the

District Courr ?id not err when it permitted the State to amend the
citations.
Affirmed

We Concur:
Justice W. William Leaphart, specially concurring.

I concur with the Court's opinion. I write separatsly to
elaborate on what I see as the proper application of the new
standard with regard to reviewing motions for mistrial. Recently,
in State v. Ford (No. 95-158, decided October 16, 1996), we
straightened out some twenty years of confusion as to the proper
standard for reviewing district court rulings on motions for a
mistrial. In Ford, relying on United States v. Perez (18241, 22

U.S. (9 Wheat) 579, 580, 6 L.Ed. 165, we held that a motion for a
mistrial should be granted when there is either a demonstration of
manifest necessity or where the defendant has been denied a fair
and impartial trial. I agree entirely with that statement.
However, since Perez is the source of the standard, it is essential
to put the manifest necessity component of that standard in context
of the Perez decision.
In m,the Court stated:
the law has invested Courts of justice with the authority
to discharge a jury from giving any verdict, whenever, in
their opinion, taking all the circumstances into
consideration, there is a manifest necessity for the act,
or the ends of public justice would otherwise be
defeated.
Perez
-
! 22 U.S. at 580 (emphasis added)

It is important to recognize three aspects of the Perez
decision: (1) It involved a double jeopardy analysis; (2) the

mistrial was declared by the court, not requested by the defendant;
and ( 3 ) the mistrial was declared due to a hung jury, i.e., it was
not the result of fault of either party or the court.
 In the years since Perez, the United States Supreme Court has
restricted the manifest necessity portion of the Perez standard to
situations in which the court declares a mistrial without the
consent of the defendant. In United States v. Dinitz (1976), 424
U.S. 600, 606-07, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267, 273 (relied
on by this Court in Keating v. Sherlock (Mont. 19961, - P.2d
53 St.Rep. 8551, the Court held the following:
this Court has held that the question whether under the
Double Jeopardy Clause there can be a new trial after a
mistrial has been declared without the defendant's
request or consent depends on whether "there is a
manifest necessity for the (mistrial), or the ends of
public justice would otherwise be defeated." [Citations
omitted.] Different considerations obtain, however, when
the mistrial has been declared at the defendant's
request. [Citation omitted; emphasis added.]
The Court has applied a different standard when the mistrial
is at the behest of the defendant. In Oregon v. Kennedy (19811,
456 U.S. 667, 672, 102 S.Ct. 2083, 2087-88, 72 L.Ed.2d 416, 422,
the Court held the following:
Where the trial is terminated over the objection of the
defendant, the classical test for lifting the double
jeopardy bar to a second trial is the "manifest
necessity" standard first enunciated in Justice Story's
opinion for the Court in United States v. Perez [citation
omitted]. Perez dealt with the most common form of
"manifest necessityA: a mistrial declared by the judge
following the jury's declaration that it was unable to
reach a verdict. While other situations have been
recognized by our cases as meeting the "manifest
necessity" standard, the hung jury remains the
prototypical example. [Citations omitted.] The
"manifest necessity" standard provides sufficient
protection to the defendant's interests in having his
case finally decided by the jury first selected while at
the same time maintaining "the public's interest in fair
trials designed to end in just judgments." [Citation
omitted.j
But in the case of a mistrial declared at the behest
of the defendant, quite different principles come into
 play. Here the defendant himself has elected to
terminate the proceedings against him, and the "manifest
necessity" standard has no place in the application of
the Double Jeopardy Clause. [Citing Dinitz ; emphasis
added.j
The Court in Dinitz had set out the rule to be applied when a
defendant requests the mistrial:
[Where] circumstances develop not attributable to
prosecutorial or judicial overreaching, a motion by the
defendant for mistrial is ordinarily assumed to remove
any barrier to reprosecution.
Dinitz, 424 U.S. at 607 (quoting United States v. Jorn (1971), 400
U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556)
In Kennedv the Court elaborated on the exception to the rule
that a defendant's motion for mistrial ordinarily does not bar
retrial.
The exception arises when the prosecutor's actions giving rise
to the defendant's mistrial motion were done "in order to goad the
[defendant] into requesting a mistrial." Kennedv, 456 U.S. at 673
(citing Dinitz) .
Although it is appropriate for a court to declare a mistrial
when there is manifest necessity (hung jury, sick juror, etc.), it
would not be appropriate to hold a defense motion for a mistrial to
a "manifest necessity" standard. The manifest necessity portion of
the Perez standard has no application to defense motions for
mistrial. Independently of manifest necessity, a defense motion
should be granted where the ends of public justice so require or
where tne defendant will be denied a fair and impartial trial. It
would be error co deny a defense motion for mistrial for failure to
satisfy the higher manifest necessity standard.
29
 Although we have adopted a standard which sets forth two
disjunctive components (manifest necessity or denial of fair and
impartial trial), it should be recognized that a district court
cannot randomly pick which alternative to apply to a particular
case. The choice of the appropriate standard will hinge upon
whether the defense requests the mistrial or whether the court, sua
sponte, declares the mistrial. The manifest necessity standard
will only have application in situations where the court, due to a
hung jury or a sick juror, for example, declares a mistrial.
In situations such as the present case, where defendant Romero
moved for a mistrial, the appropriate inquiry is not whether
manifest necessity existed, but rather whether the circumstances
alleged as the basis for the mistrial would deny Romero a fair and
impartial trial.

Justices James C. Nelson, Karla M. Gray and Charles E . Erdmann join
in the foregoing special concurrence. /
Justice Terry N. Trieweiler concurring in part and dissenting in

part.
I concur with the majority's conclusions in response to
Issues 1, 3, 4, 5, 6, and 8. I dissent from the majority's
resolution of Issues 2 and 7.
I dissent from the majority's conclusion that Aaron D. Romero
was not denied a speedy trial for the same reason that I specially
concurred in this Court's decision in Slate v. ,Wanlz (1994), 269 Mont.

135, 139, 887 P.2d 251, 254 (Trieweiler, J . , and Hunt, J . ,
specially concurring) . Romero was charged with misdemeanor
offenses in Justice Court on August 5, 1993, and entered his plea
on August 9, 1993. The charges against him were dismissed in

Justice Court on November 30, 1994, and the State appealed to the
District Court on that date. From the time of appeal until the
time of Romero's trial in District Court, 363 days passed. After

appeal, no extension was ever requested by Romero. Section
46-13-40112),MCA, requires that people charged with misdemeanors
be brought to trial within six months. It does not make a
distinction between pretrial delay in justice court and pretrial
delay in district court. As I previously stated in Mrmtz, 'I i 1 hat
t

fictional distinction was created by this Court in Slate v. St~nfiwd

(1990), 244 Mont. 411, 796 P.2d 1084, by sheer judicial

legislation. Therefore, I decline to follow that decision. " M~nfz,

269 Mont. at 119, 8 8 7 P.2d at 254.
 My position 'has n3t changed. Althougk I agreed in Slirfe i Bukick

(:995), 272 Mont. 361, 369, 901 P.2d EL, 67, t h ~ tthere was nc
basis for distinguishing between cases that ccme to district court
following trial in justice court, and those cases that come to
district court following some other disposition in justice court,
that is not the issue presented in this case. Therefore, I restate
my objection to this Court's amendment of § 46-13-401(2),MCA.

I also conclude that the District Court erred when it denied
Romero's motion for a mistrial based on the State's failure to
comply with the plain terms of § 46-15-322(1)(b), MCA, which
required that in response to the defendant's request the State
produce all written or oral statements that the defendant had made.
In addition to § 46-15-322(1)(b),
MCA, the State was required
by the District Court's March 28, 1994, omnibus order to provide
the defendant with copies of any statements he had made. None were

provided. Neither was there any suggestion that the defendant had

made a confession in either the State's trial brief or the State's
opening statement. Then, after calling Warden Jeff Scott as its
witness, the State elicited the following testimony from Scott:

Q. Okay. Did he admit to you at any time either on
tape or off tape the hunting violations?
A. Yes, h e d i d o f f tape.
Q. How did he--what did he say to admit?
A. He indicated that he was certainly involved in the
elk and the antelope or deals that were alleged to have
Seen ccmmitted on the reservation, and that he wouldn't
indicate to his involvement as far as the actual killer
or the killing shots that killed some of the elk that
were alleged to have been killed on the reservation, but
he indicated that he was shooting at them.

Q. Did he aamit or deny hunting hear while he was
suspended?
A. He admitted to that
Q. Did he admit or deny hunting elk while his
privileges to hunt were suspended?
A. Ee admitted to that as weil.
Q. Did he admit or deny wasting elk carcass?
A. He admitted to that as well
Q. Did he admit or deny wasting antelope carcass?
A. He admitted to that as well
Q. Did he admit or deny hunting an antelope while his
privileges were suspended?
A. He admitted to that as well

Q. Did he appear to understand what you were talking to
him about?
A. yes, sir, he did.
Q. Did he appear to be under the influence of any
intoxicating substance or chemical at that time?
A. No, sir, not to me he didn't
Q. Any reason to believe in your mind that he didn't
undersrand what you were talking to him about?
A. No, sir.
Q. Did he, at any time d ~ r i n gyour conversation with
him that day, offer to you the excuse that someone else
had made him do what he was charged with doing?
A. No, sir
 We recently held In S/ale s Fbr-d (Mont. 14961, 53 St. Rep. 947,

953, that a xiistrial is appropriate when there is a "demonstration

cf manifest necessity or when che defendant has been denied a fair

and inpartial trial."
Romero was clearly denied a fair trial when the State i~ferred
prior to trial that he had made no confession of guilt and then

called a law enforcement officer who stated unequivocally at trial
that Romero had admitted guilt to all of the violations with which

he was charged.
While the majority winks at this gross violation of pretrial
discovery rules based on concessions made by the State's witness
during cross-examination, the concessions were anything but
unequivocal. That part of Scott's testimony, which is referred to
in the majority opinion, continued with the following argumentative

responses:
Q. That is nothing more than your assumptions based on
an inference; is that true?
A. Based on experience.

Q. Based on an inference; is that true?
A. Inference with experience, counselor
Q. And Aaron Romero never admitted to you those--that
he's guilty in those offenses?
A. Not in those exact words.
In other words, in spite of the fact that Scctt was called to
testify unequivocally that Romero had previously admitted guilt,
and in spite cf the fact that the State had refused to disclose
this alleged adrrission of guilt prior to trial, in violation of
statute and the court's ~ r d e r s ,a r d in spite of the further fact
that Scott apparently had cn factual basis for his
misrepresentation, he still left the jury, following cross-
examination, with the inference that an admission had been made.
Romero had no opportunity to prepare for or respond to this
critical testimony, and no other conclusion can be drawn than that
on this basis he was denied a fair and impartial trial.
The majority states that "the report from which Officer Scott
made the inference of a confession was available to Romero in
pretrial discovery." However, there was nothing in the report to
which the majority refers which even remotely suggested that the
State would contend that Romero made a confession of guilt.
For these reasons, I dissent from the majority's conclusions
which resolved Issues 2 and 7. I would reverse the judgment of the
District Court.
 November 6 . 1996

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

Jack E. Sands
Attorney At Law
100 North 27th, Suite 250
Billings MT 59101

Hon. Joseph P. Mazurek, Attorney General
Cregg Coughlin, Assistant Attorney General
215 N. Sanders
Helena MT 59620

Curtis L. Bevolden
Big Horn Deputy County Attorney
Box H
Hardin MT 59034

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA