NO. 88-609
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1989
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
MICHAEL DUANE STILLINGS,
Defendant and A p p e l l a n t .
- .
APPEAL F O :
R M ~ i s t r i c t o u r t o f t h e E i g h t h ~ u d i c i a l ist trick,
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I n and f o r t h e County o f Cascade, n fi
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The Honorable J o e l G . Roth, Judge p r e s i d i n g . --
COUNSEL O RECORD:
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For Appellant: . L-
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E . J u n e L o r d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. Marc ~ a c i c o t ,A t t o r n e y G e n e r a l , Helena, Montana
John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
P a t r i c k P a u l , County A t t o r n e y , G r e a t F a l l s , Montana
S t e v e n Hudspeth, Deputy County A t t o r n e y , G r e a t F a l l s ,
Montana
S u b m i t t e d on b r i e f s : Aug. 3, 1989
Decided: August 2 4 , 1989
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Defendant Michael Duane Stillings appeals his conviction by
the District Court of the Eighth Judicial District, Cascade County,
for committing perjury by making two, inconsistent, material
statements under oath in an official proceeding in violation of
section 45-7-201(6), MCA (1987). We affirm.
The defendant raises the following issues on appeal. Did the
District Court err in denying the defendant's motion to dismiss the
information when the District Court found that either:
1) the defendant's act of perjury under section 45-7-201(6),
MCA (1987), was not complete, and therefore the statute of
limitations did not begin to run until the defendant made a
material statement under oath that was inconsistent with this
previous testimony; or, in the alternative
2) under section 45-1-206 (I), MCA (1987), the defendant's out-
of-state incarceration tolled the statute of limitations on his
first statement so that both statements fell within the five year
statute of limitations?
On the night of February 23, 1971, Vicki Renville was raped
and bludgeoned to death in the Wadsworth Park area of Great Falls,
Montana. During the resulting murder trial, Michael Stillings
testified on October 4, 1971, that he and Fred Lee Perry raped
Renville and that when she threatened to "rat," Perry repeatedly
struck Renville on the head with a tire iron. Perry was subse-
quently convicted of second degree murder. See State v. Perry
(1973), 161 Mont. 155, 505 P.2d 113 (affirming the District Court
decision). Stillings pled guilty to the same charge and received
a sixty-year sentence with ten years suspended.
Stillings was incarcerated in the Montana State Prison on
November 29, 1971. On December 6, 1971, he was transferred to the
California prison system under the provisions of the Interstate
Correctional Compact Agreement to prevent his confinement in the
same prison as Perry. California paroled Stillings to Washington
on August 18, 1978. On February 14, 1979, Stillings was arrested
and subsequently convicted of armed robbery in Washington. After
he served five years of his thirty-five year sentence, Washington
paroled ~tillings to Montana on detainer on April 20, 1984.
Montana revoked Stillingsl parole on his second degree murder
charge returning him to the Montana State Prison.
In 1986 the California prison system transferred Perry to Deer
Lodge placing Stillings and Perry in the same prison for the first
time. Stillings soon indicated that he would recant his previous
testimony against Perry, and Perry applied for a new trial. During
the new trial hearing on July 24, 1987, Stillings disavowed his
1971 testimony against Perry and stated under oath that he, and not
Perry, had killed Vicki Renville. The trial court, however, did
not find Stillingsl testimony credible and refused to grant Perry
a new trial. See State v. Perry (Mont. 1988), 758 P.2d 268, 45
St.Rep. 1192 (affirming the District Court decision).
On September 25, 1987, the Cascade County Attorney filed an
information against Michael Stillings charging that Stillings
committed perjury by making two, inconsistent, material statements
.
under oath in violation of section 45-7-201, MCA (1987) Stillings
filed a motion to dismiss the information on the grounds that the
statute of limitations had run. The District Court denied the
motion. Defendant Stillings then filed an application for writ of
supervisory control on the same grounds and the Montana Supreme
Court denied the petition. In the ensuing bench trial, the
District Court found the defendant guilty and sentenced him to ten
years for perjury and ten years as a persistent felony offender.
The District Court also revoked the ten-year suspended sentence on
Stillings' second degree murder conviction and ordered that all
sentences run consecutively. Defendant Stillings now appeals his
perjury conviction.
Did the District Court err in its alternative finding that the
defendant's act of perjury under section 45-7-201(6), MCA (1987),
was not complete, and therefore the statute of limitations did not
begin to run until the defendant made a material statement under
oath that was inconsistent with his previous testimony?
Montana's perjury statute provides that:
A person commits the offense of perjury if in
any official proceeding he knowingly makes a
false [material] statement under oath ... .
Section 45-7-201(1), MCA (1987).
The statute further provides that:
Where the defendant made inconsistent state-
ments under oath or equivalent affirmation,
both having been made within the period of the
statute of limitations, the prosecution may
proceed by setting forth the inconsistent
statements in a single count alleging in the
alternative that one or the other was false
and not believed by the defendant. In such
case it shall not be necessary for the prose-
cution to prove which statement was false but
only that one or the other was false and not
believed by the defendant to be true.
Section 45-7-201(6) , MCA (1987).
The defense in this case argues that by the plain language of
the inconsistent testimony provision, both statements must be made
within the five year statute of limitations for felony crimes.
Stillings contends that because seventeen years lapsed between his
statements, the statute of limitations had run before the prosecu-
tion filed its information against him. We disagree.
The statute of limitations did not run because the statute was
triggered only by Stillings' second statement which completed the
crime of perjury under section 45-7-2Ol(6), MCA (1987). The
statute of limitations clearly states when the time limitation
begins to run:
A prosecution for a felony must be commenced
within 5 years after it is committed.
Section 45-1-205 (2)(a), MCA (1987). (Emphasis added. )
An offense is committed either when every
element occurs or, when the offense is based
upon a continuing course of conduct, at the
time when the course of conduct is terminated.
Time starts to run on the day after the of-
fense is committed.
Section 45-1-205(5), MCA (1987).
Commission of the crime of perjury by making inconsistent,
material statements under oath requires at a minimum that the
accused has made two conflicting statements. When a witness makes
conflicting statements under oath, it is axiomatic that one is
false so long as all other elements of perjury can be satisfied.
This statute expedites prosecution by eliminating the needless
requirement of proving which statement is false. The intrinsic
falsity of the accused's testimony arises, and the crime is
complete, only when the inconsistent testimony occurs. The statute
of limitations, therefore, cannot begin to run at least until the
defendant has completed the crime by making the indispensable,
second statement.
The issue raised by the defendant accentuates an underlying
contradiction in the inconsistent testimony statute. A crime under
this statute cannot be completed, and the statute of limitations
does not begin to run, until the defendant makes at least two
allegedly inconsistent statements. However, the statute declares
that "both [statements must be] made within the period of the
statute of limitations.~~ Section 45-7-201(6) , MCA (1987) . BY
including the first statement, which might be entirely true, within
the period of limitations, this clause would trigger the statutory
period before any crime has been committed. The statute entices
the unscrupulous witness to falsely recant five-year-old, credible
testimony and insulate himself against prosecution under this
statute. We invite the legislature to consider an appropriate
remedy to this problem.
In the present case, application of this questionable statu-
tory clause would still not have provided grounds for barring the
prosecutionls information.
Did the District Court err in its alternative finding that
under section 45-1-206(1), MCA (1987), the defendant's out-of-state
incarceration tolled the statute of limitations on his first
statement so that both statements fell within the five year statute
of limitations?
Section 45-1-206, MCA (1987), provides that:
The period of limitation does not run during:
(1) any period in which the offender is not
usually and publicly resident within this
state or is beyond the jurisdiction of this
state....
The defendant argues that during the time he was incarcerated
in California on his second degree murder charge, he was still
under Montana jurisdiction. While this contention may be true, we
make no determination on this issue since it is not relevant.
Section 45-1-206(1) is written in the disjunctive and either
clause is sufficient in itself to toll the statute of limitation.
Failure of the criminal defendant to be llusually and publicly
resident within this statew will itself interrupt the running of
the statutory period regardless of jurisdiction. The statute is
-
also tolled when the criminal defendant is "beyond the jurisdiction
of the staten regardless of his place of residence.
The Criminal Law Commission Comments on section 45-1-206 are
also written in the disjunctive and note that:
subsection (1) tolls the statute for the
offender who is absent from this state, or
absents himself from his usual place of abode
and makes some effort to conceal himself.
Again, each clause is sufficient to toll the statutory period.
Absence from the accused's usual abode coupled with attempts at
concealment will toll the statute. Absence from the state will,
independently, interrupt the statutory period. We therefore hold
that the mere absence of the criminal defendant from the state is
sufficient to toll the statute of limitations.
The majority of states interpreting similar statutes have also
concluded that a criminal defendant's mere absence from the state
is sufficient to toll the statute of limitations. See State v.
Nelson (Ariz. App. 1988), 755 P.2d 1175; State v. Wright (Utah
1987), 745 P.2d 447; State v. Houck (Kan. 1986), 727 P.2d 460;
State v. Ansell (Wash. App. 1984), 675 P.2d 614; State v. Azzone
(Minn. 1965), 135 N.W.2d 488; State v. Lupino (Minn. 1964), 129
N.W.2d 294; Grayer v. State (Ark. 1962), 353 S.W.2d 148; Couture
v. Commonwealth (Mass. 1958), 153 N.E.2d 625; Traxler v. State
(Okla. Crim. App. 1953), 251 P.2d 815.
A number of states have applied this principle to cases
similar to that of Stillings. In the seminal case of People v.
Carman (Ill. 1943), 52 N.E. 2d 197, the Illinois Supreme Court first
interpreted the statutory exclusion for periods during which the
defendant was "not usually and publicly resident within this
state. The court defined "residentN by its common meaning and
held that the statute of limitations was tolled during the Missouri
incarceration of the defendant even though he remained a legal
resident of Illinois. Carmen, 52 N.E.2d at 199-200. Similarly,
Stillings' incarceration in Washington on armed robbery charges
tolled the statute of limitations.
The fact that Stillingsl whereabouts were known to Montana law
enforcement officials throughout his absence does not change the
rule. The Washington Court of Appeals held that the absence from
the state of a first-degree statutory rape defendant was sufficient
to toll the statute of limitations even though the defendant's
whereabouts were easily determinable by law enforcement officials.
State v. Ansell (Wash. App. 1984), 675 P.2d 614, 617.
The ability of Montana to force the return of Stillings at any
point during his time in California and Washington does not affect
the tolling of the statutory period. The Washington courts held
that the statute was tolled on a first-degree robbery defendant
incarcerated in Oregon who was available for extradition under the
Interstate Agreement on Detainers. State v. Newcomer (Wash. App.
1987), 737 P.2d 1285, 1290.
Similarly, Montana's maintenance of some control of Stillings
during his California incarceration for his Montana murder convic-
tion did not overcome the tolling of the statute. In an analogous
case the Kansas Supreme Court held that a criminal defendant volun-
tarily paroled to Arkansas from the Kansas prison system and under
the control of Kansas parole officials was not in the custody of
the State of Kansas and therefore the statute tolled during his
absence. State v. Houck (Kan. 1986), 727 P.2d 460, 465-66.
In each of these cases, the principle is the same as that
which we adopt today; mere absence from the state is sufficient to
toll the statute of limitations for a criminal defendant.
If the statute of limitations were applied to Stillings' first
statement, it would have been triggered by his testimony on October
4, 1971. The defendant left Montana for incarceration in ~ a l i -
fornia on December 6, 1971, tolling the statutory period at two
months. He returned to prison in Montana on April 20, 1984,
restarting the statute of limitations which ran until the prosecu-
tion filed its information on September 24, 1987--a period of three
years and five months. The statute of limitations, therefore, ran
for three years and seven months and fell well within the five year
statutory period.
We find that the District Court was correct in both of its
alternative holdings. Stillingsl mere absence from the state
tolled the statute of limitations. Even if the statutory period
had not been tolled, it could not have begun to run until Stillings
made a material statement under oath that was inconsistent with his
previous testimony.
Affirmed .
We concur:
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Justices