No. 91-210
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
PERRY KRINITT,
Defendant and Appellant.
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:
Larry Jent; Williams, Jent & Dockins, Bozeman,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Kathy Seeley,
Asst. Atty. General, Helena, Montana
A. Michael Salvagni, County Attorney; Jennifer
eputy, Bozeman, Montana
UEC 1 2 1991 Submitted on Briefs: October 3 , 1991
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellant Perry Krinitt was charged by information with one
count of theft, or in the alternative, one count of forgery.
Following a jury trial, he was found guilty of theft and not guilty
of forgery. Krinitt appeals from the judgment of conviction. We
affirm.
Krinitt raises three issues:
1. Did the delay in filing criminal charges violate
appellant's right to due process?
2. Was sufficient evidence presentedto prove that appellant
intended to deprive the owner, his spouse, of the property?
3. Was the money taken "property normally accessible to both
spouses" under 5 45-6-303 ( 2 ) , MCA?
Perry Krinitt (Krinitt) married Florence Krinitt (Mrs.
Krinitt) in 1970. Mrs. Krinitt was the beneficiary of a family
trust and had been receiving income from the trust on a quarterly
basis since she was 22 years old, approximately one year before her
marriage to Krinitt. She continued to receive the trust income
during the marriage. She received a check from the trust in
January, April, July, and October, usually between the loth and
15th of the month.
Because of financial problems, the Krinitts filed for
bankruptcy in 1981. They eventually lost their home. Mrs. Krinitt
felt that her husband was unable to control his financial situation
and spending habits, and took steps to separate her finances from
his. After the bankruptcy, she did not enter into joint financial
2
obligations with Krinitt. She did not have a joint bank account
with him. After she was discharged from bankruptcy, she reaffirmed
certain of the debts and instituted a repayment schedule in 1983.
The Krinitts were dependent on the income from Mrs. Krinitt's
trust to pay bills and make debt payments. Some years earlier
Krinitt had taken one of the trust checks and cashed it without
Mrs. Krinitt's knowledge, making it difficult for her to meet her
obligations. In order to protect her ability to pay bills and debt
payments, in 1985 she requested the trustee, Wells Fargo Bank, to
send the quarterly dividend checks to her attorney's office, rather
than her home. The dividend checks were deposited into a trust
account from which she and her attorney paid bills and other
obligations. Mrs. Krinitt also received a monthly income for
household expenses. Krinitt did not have access to the trust
account or these funds.
Beginning in 1985, and continuing through 1986 and 1987, all
of the trust dividends were sent directly to Mrs. Krinitt's
attorney. The attorney would not release any of this money to
Krinitt unless Mrs. Krinitt authorized him to do so.
In September 1985, Mrs. Krinitt filed a petition for legal
separation. The Krinitts, however, continued to live together
until mid-1988. In October 1985, Mrs. Krinitt obtained a temporary
restraining order to prevent Krinitt from transferring,
encumbering, concealing, or disposing of any property. On
November 7, 1985, the District Court ordered that "both [Mrs.
Krinitt] and [Krinitt] are restrained from transferring,
3
encumbering, concealing or otherwise disposing of any property,
except in the usual course of business, or for the necessities of
life and they are required to notify each other of any proposed
extraordinary expenditures . ... I1
In January 1988, Mrs. Krinitt was expecting to receive her
quarterly dividend check on about the 10th of the month. When the
check did not arrive, she began to get worried. She called her
attorney several times, but he had not received the check. She
called Wells Fargo Bank and was told the check had been mailed
about January 10th. Wells Fargo Bank informed her that the check
had already been cashed. Krinitt had deposited the check in his
account at Western Federal Savings and Loan on January 14, 1988.
Mrs. Krinitt had no authority over this account, and was not even
aware of its existence in January 1988.
The dividend check was for $8015. When Krinitt presented it
to the teller at Western Federal Savings, the check had the
signature "Florence Elizabeth Krinitt" endorsed on the back.
Krinitt put his own signature on the check in front of the teller.
Mrs. Krinitt testified that she had not signed the check and the
signature was not hers. She testified that it was apparent from
the face of the check that the check had been mistakenly mailed to
the post office box she shared with Krinitt, instead of to her
attorney's address. When Mrs. Krinitt questioned him about the
lost check, Krinitt at first denied seeing it. Later, however, he
admitted to her that he had cashed the check.
4
Mrs. Krinitt told her attorney of what had happened, and the
attorney notified Western Federal Savings that the check had been
cashed improperly. In order to recover her lost money, Mrs.
Krinitt filed an affidavit of forgery with Western Federal Savings
on February 18, 1988. Western Federal Savings reimbursed Mrs.
Krinitt the $8015. Western Federal Savings was unable to charge
Krinitt for the loss because there was never enough money in his
account. Western Federal Savings reported the matter to the
Bozeman Police Department.
An officer of the police department interviewed Mrs. Krinitt
in late February 1988. Mrs. Krinitt was reluctant to participate
in the police investigation, but agreed to an interview. On
March 1, 1988, the police department submitted a request for
prosecution to the Gallatin County Attorney's Office. However, the
county attorney's office decided not to file charges at that time.
Apparently the main reason the county attorney did not proceed with
prosecution was the fact that Mrs. Krinitt was barred from
testifying against her husband by § 26-1-802, MCA (spousal
privilege), and 5 46-16-212, MCA (competency of spouses). The
county attorney did not feel that he could prove the charges
without her testimony.
In February 1988, Mrs. Krinitt filed a petition for divorce.
The couple was divorced in May 1989.
In August 1988, Western Federal Savings sent Krinitt a demand
letter to recover the $8015 he had misappropriated. In response,
5
Krinitt agreed to repay the money and requested a payment schedule
be set up.
On December 12, 1989, the Gallatin County Attorney filed an
information charging Krinitt with one count of theft,
5 45-6-301(1), MCA, or in the alternative, one count of forgery,
5 45-6-325(1), MCA. Following a jury trial, Krinittwas convicted
of one count of theft. The District Court placed Krinitt on
probation and deferred imposition of sentence for three years upon
certain conditions, including payment of a $10,000 fine and $3674
in other charges. He appeals from his conviction.
I
Did the delay in filing criminal charges violate appellant's
right to due process?
Krinitt notes that he took and cashed his wife's dividend
check in January 1988, and the police department requested the
Gallatin County Attorney's Office to initiate prosecution in March
1988, but the county attorney delayed prosecution until December
1989. Krinitt contends that the nearly two year delay in filing
criminal charges against him violated his right to due process. We
disagree.
This Court has previously considered the circumstances in
which pre-indictment delay may constitute a denial of due process.
See, e g . , Statev. Curtis ( 1 9 9 0 ) ~ 2 4 1 Mont. 288, 787 P.2d 306. Because
past decisions of this Court and other courts have left some
uncertainty as to the appropriate standard to be applied, we take
this opportunity to clarify Montana law on this issue.
6
The seminal case in this area of the law was United States v Marioii
.
(1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. The Supreme
Court noted that the primary guarantee against bringing overly
stale criminal charges is the applicable statute of limitations.
404 U.S. at 322-24, 92 S.Ct. at 464-65, 30 L.Ed.2d at 479-81.
Because the defendants in Marion only made a claim of potential
prejudice from the delay in prosecution, rather than actual
prejudice, the Court did not need to decide the case under a due
process analysis. However, anticipating that the defendants could
raise a claim of actual prejudice upon reinstatement of the
criminal proceedings, the Court discussed the application of the
due process clause:
Thus, the Government concedes that the Due Process Clause
of the Fifth Amendment would require dismissal of the
indictment if it were shown at trial that the
pre-indictment delay in this case caused substantial
prejudice to appellees' rights to a fair trial and that
the delay was an intentional device to gain tactical
advantage over the accused. However, we need not, and
could not now, determine when and in what circumstances
actual prejudice resulting from pre-accusation delays
requires the dismissal of the prosecution. Actual
prejudice to the defense of a criminal case may result
from the shortest and most necessary delay; and no one
suggests that every delay-caused detriment to a
defendant's case should abort a criminal prosecution. To
accommodate the sound administration of justice to the
rights of the defendant to a fair trial will necessarily
involve a delicate judgment based on the circumstances of
each case. [Citations omitted.]
404 U.S. at 324-25, 92 S.Ct. at 465-66, 30 L.Ed.2d at 481.
In the years following the Marioii decision, federal and state
courts, including this Court, had occasion to review due process
7
claims under the Manoil standard. However, as noted by the Ninth
circuit in Uiiited States v. Mays (1977), 549 F.2d 670, 675:
Since the Marion decision, there has been a good deal of
confusion as to whether the two elements delineated in
the opinion--actual (or substantial) prejudice, and
intentional delay by the government for an improper
purpose--are to be applied in a conjunctive or
disjunctive manner. Indeed, as with the other circuits,
this Circuit has not been entirely consistent in its
articulation of the proper standard.
See 549 F.2d at 676-77 (discussing arguments in favor of both
interpretations.)
A similar uncertainty was expressed in certain Montana cases,
In Statev.Burtcliett (1974), 165 Mont. 280, 283, 530 P.2d 471, 473, cert.
denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975), a case
relied upon by Krinitt, this Court determined that pre-indictment
delay can result in a denial of due process where there is "either
actual prejudice to the conduct of the defense, or . . . the State
intentionally delayed to gain some tactical advantage over [the
defendant] or to harass him." In State v. Bartiies (1988), 234 Mont.
522, 525, 764 P.2d 1271, 1274, we described the relevant inquiry as
"whether the pre-indictment delay caused substantial prejudice to
the defendant's right to a fair trial and whether the delay was
used as an intentional device to gain a tactical advantage over the
accused. 'I
In Statev. Gollz (1982), 197 Mont. 361, 642 P.2d 1079, and Statev.
Curtis (1990), 241 Mont. 288, 787 P.2d 306, the defendants had proven
neither intentional delay designed to gain a tactical advantage,
8
nor actual prejudice resulting from the delay; this Court declined
to decide the question of whether either element alone or both
elements together were required to support a due process claim.
In UititedStatesv. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52
L.Ed.2d 752, the United States Supreme Court provided further
guidance in evaluating these due process claims. The Court
explained:
Marion makes clear that proof of prejudice is generally
a necessary but not sufficient element of a due process
claim, and that the due process inquiry must consider the
reasons for the delay as well as the prejudice to the
accused.
431 U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759.
Thus, in considering a defendant's claim that pre-indictment
delay violated his due process rights, the court must first
determine whether the defendant suffered actual, substantial
prejudice. See Uniled States v. va1eiitiite (9th Cir. 1986), 783 F.2d 1413,
1416-17. If the defendant does not demonstrate actual prejudice
resulting from the delay, no due process violation will be found.
Accordingly, the language of State v. Birrlchett, cited above, which
implied that a due process violation could be found based solely on
the state's intentional delay, without a showing of prejudice, is
incorrect.
Upon a showing that the defendant suffered actual, substantial
prejudice from the delay, the court must then weigh the
justification for the delay, as well as the absolute length of the
delay, to determine if due process has been denied. SeeLovasco, 431
9
U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759; Mays, 549 F.2d
at 677-78 (where defendant has established actual prejudice due to
unusually lengthy pre-indictment delay, it then becomes incumbent
upon the government to provide the court with its reasons for the
delay; negligent conduct will be weighted less heavily than
deliberate delays) . See also United States v Morait (9th Cir. 1985), 759
.
F.2d 777, 780-83, cert. denied, 474 u.S. 1102, 106 s.Ct. 885, 88
L.Ed.2d 920 (1986).
Ultimately, in making a determination on this type of due
process claim, the court should be guided by the principle
enunciated in UrtitedStatesv. Lovasco, 431 U.S. at 790, 97 S.Ct. at 2049,
52 L.Ed.2d at 759:
We are to determine only whether the action complained
of--here, compelling respondent to stand trial after the
Government delayed indictment to investigate further
--violates those "fundamental conceptions of justice
which lie at the base of our civil and political
institutions," and which define Ifthecommunity's sense of
fair play and decency." [Citations omitted.]
Applying this standard to the present case, we conclude that
Krinitt has not demonstrated that his due process rights were
violated. As an initial consideration, we note that the
prosecution was commenced within the applicable five year statute
of limitations. Section 45-1-205(2)(a), MCA.
We look next to the issue of whether the defendant suffered
actual, substantial prejudice from the two year delay in
prosecution. Krinitt contends he was prejudiced by the delay
because in the interim he and Mrs. Krinitt were divorced, and he
10
could no longer rely on 5 26-1-802, MCA (spousal privilege), and
g 46-16-212, MCA (competency of spouses), to prevent her from
testifying against him. We disagree. The fact that he was unable
to prevent a witness from coming into court and testifying about
the theft does not constitute "prejudice" to the defendant.
Krinitt was not hindered in raising any legitimate defense to the
commission of the crime.
Krinitt next contends he was prejudiced because, in response
to the demand letter from Western Federal Savings, he sent a letter
to the bank's attorney indicating that he wished to repay the money
and requesting a payment schedule be set up. The jury was informed
of Krinitt's letter. Krinitt argues he would not have agreed to
repay the money if he had known he was facing criminal charges. We
do not agree, however, that Krinitt's offer caused substantial
prejudice sufficient to warrant a dismissal of the prosecution.
First, we note that Krinitt's offer of repayment was made in
a letter dated September 7, 1988, only six months after the
prosecutor received the request for prosecution. The delay at that
point was not very great, and any delay after that time did not add
to the effect of the admission. Krinitt's claim that he would not
have agreed to repay the money if he had known he was facing
criminal charges is speculative. If Krinitt knew in September 1988
that he faced criminal charges, he may well have found it in his
best interest to admit owing the money to the bank. Further, the
State did not introduce the correspondence with the bank into
evidence as part of its case in chief. The letters were introduced
11
on cross-examination after Krinitt took the stand and claimed that
until the information was filed he had no knowledge that he was
being accused of forging Mrs. Krinitt's signature on the check.
Finally, Krinitt contends his credibility was impeached
because at trial, before the correspondence with the bank was
admitted into evidence, he testified and denied knowing about the
accusation of forgery or corresponding with Western Federal Savings
in the matter. We are without sympathy for this latter claim. A
criminal defendant is not "prejudiced" by having the truth revealed
after he has testified falsely.
Because Krinitt has not shown that he suffered actual,
substantial prejudice as a result of the delay in prosecution, he
cannot prevail on his due process claim. We therefore need not
review the reasons given by the government for the delay. We
conclude that the delay in prosecution did not violate Krinitt's
right to due process.
I1
Was sufficient evidence presented to prove that appellant
intended to deprive the owner, his spouse, of the property?
The offense of theft, where committed as in the instant case,
includes the element of intent or purpose:
(1) A person commits the offense of theft when he
purposely or knowingly obtains or exerts unauthorized
control over property of the owner and:
(a) has the purpose of depriving the owner of the
property:
(b) purposely or knowingly uses, conceals, or abandons
the property in such manner as to deprive the owner of
the property: or
12
(c) uses, conceals, or abandons the property knowing
such use, concealment, or abandonment probably will
deprive the owner of the property.
Section 45-6-301(1), MCA.
Krinitt contends the State did not present sufficient evidence
to prove that he had the requisite intent. We disagree.
The evidence showed that Krinitt knew he was not authorized to
spend his wife's dividend check. When the check was mistakenly
sent to the mailbox he shared with Mrs. Krinitt, he took the check
without informing her. He forged her signature on the check, and
without her consent, deposited the check in his own individual
account. Mrs. Krinitt had no knowledge of this account, and no
authority over it. Krinitt immediately began spending the money,
including writing one check for $3998 the day after making the
deposit. When questioned by Mrs. Krinitt about the dividend check,
he at first denied knowing what had happened to it. Only after his
wife questioned him repeatedly did he admit that he had taken the
check. He did not reimburse his wife for the amount of the check.
The evidence was sufficient to prove that Krinitt intended to
deprive his wife of the $8015.
I11
Was the money taken "property normally accessible to both
spousesf1under 5 45-6-303 ( 2 ) , MCA?
Section 45-6-303(2), MCA, provides:
It is no defense that the theft was from the offender's
spouse, except that misappropriation of household and
personal effects or other property normally accessible to
both spouses is theft only if it occurs after the parties
have ceased living together.
13
Krinitt contends that he cannot be convicted of the crime of
theft because he and Mrs. Krinitt were living in the same home and
the money he took was ltproperty normally accessible to both
spouses.11 This contention is incorrect.
The dividend checks belonged to Mrs. Krinitt. The checks were
mailed directly to her attorney's office. Since 1985 Krinitt had
no access to this money, and Mrs. Krinitt's attorney would not have
given him any of the money without authorization from Mrs. Xrinitt.
Krinitt knew he was not authorized to spend this money. That this
money was not "normally accessible" to Krinitt was clearly
evidenced by the fact that he had to forge his wife's signature on
the check in order to negotiate it. Although in this instance the
check was mistakenly sent to a mailbox which was accessible to both
Mr. and Mrs. Krinitt, the dividend income was not "property
normally accessible to both spouses.1t
We affirm the judgment of the District Court.
Ju tice
I
We concur
/
Justices
14
December 12, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Larry Jent
Williams, Jent & Dockins
506 E. Babcock
Bozeman, MT 59715
Hon. Marc Racicot, Attorney General
Kathy Seeley, Asst. Atty. General
Justice Bldg.
Helena, MT 59620
A. Michael Salvagni, County Attorney
Jennifer Bordy, Deputy
615 S . 16th
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA