No. 90-069
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
RONALD F. TIMBLIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Billy B. Miller argued, Miller & Cook, Great Falls,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Carol E. Schmidt argued, Assistant Attorney
General, Helena, Montana
Patrick L. Paul, County Attorney, Great Falls,
,.'-..- Montana
,b
*-.
submitted: June 11, 1992
Decided: July 13, 1992
'Clerk
Justice R. C. McDonough delivered the opinion of the Court.
Ronald Timblin appeals from a judgment of the Eighth Judicial
District Court, Cascade County entered after a bench trial. We
reverse.
The sole issue to consider on this appeal is: whether the
District Court erred in denying a continuance thereby denying
Timblinls Sixth Amendment right to compulsory process, and his
Fifth Amendment rights to due process and a fair trial. These
rights are applicable to the states by reason of the Fourteenth
Amendment to the United States Constitution.
During the spring of 1987, Timblinlswife filed for a divorce
and Timblin moved out of the family home. On approximately August
22, 1987, Timblin picked up P.T., C.T. and K.T. (his three
daughters) for a scheduled visitation. At the time, P.T. was 14
years old. P.T. later reported that Timblin forcibly raped her
during the visit. She initially told no one about this incident.
Two years later, in 1989, P.T. confided in her boyfriend Matthew
and revealed a history of sexual abuse by her father. After
consideration, on the following day, Matthew told P.T.Is mother
about the abuse. On April 24, 1989 P.T. Is mother contacted the
Great Falls Police Department. After an investigation, Timblin was
charged with sexual intercourse without consent.
P.T. told the investigating officer that on the day of the
incident at Timblinlsapartment, he called her into the bathroom to
talk about C.T.Is birthday present. She stated that Timblin told
C.T. and K.T., her younger sisters, to stay in the living room and
watch television. P.T. reported that after the alleged rape
occurred Timblin left the bathroom first. She remained in the
bathroom to clean up and put cold water on her face. Later, at
the request of the County Attorney, the investigating officer
interviewed P.T.'s sisters, C.T. and K.T. Both C.T. and K.T.
reported that Timblin called P.T. into the bedroom to talk about
C.T. I s birthday present. They stated that P.T. and Timblin were in
the bedroom about two minutes, and that P.T. came out of the
bedroom first. Both girls stated they were in the living room
watching TV at the time of the alleged rape. C.T. stated she saw
P.T. and Timblin go into the bedroom but not the bathroom.
Prior to trial, the State issued subpoenas to both C.T. and
K.T. Apparently, the State released the subpoenas one or two days
prior to the trial. At the trial, P.T.'s story changed somewhat.
Counsel for the defendant then had subpoenas issued for C.T. and
K.T. but was unable to serve them. Filed affidavits made by the
process server and a private investigator showed that the girls
were hidden by their maternal grandmother, and/or mother thus
preventing service.
The statements taken by the investigating officer had revealed
some inconsistencies between the girls1 stories, and the story of
the victim. However, it was not revealed to the defense until
trial that P.T.Is initial story had changed. Prior to P.T.Is in-
court testimony, Timblin was unaware that P.T. had made more than
one statement to the investigating officer. The State did not
notify Timblin about the change in P.T. Is testimony. P.T.
testified at trial that her father first called her into the
bedroom, then they went into the bathroom. P.T. stated that
Timblin told the younger girls to take out the garbage. P.T.
further testified that the girls stayed outside and played. This
was not the version told by C.T. and K.T.
P.T.ls original and only typed statement was different than
her trial testimony; the detective knew about her change in
testimony prior to trial. The defendant was unaware of the change
in the story until the trial.
During the trial, after the process server was unsuccessful in
serving the subpoenas, Timblin made a motion to compel the State to
produce C.T. and K.T., and a motion to continue the trial until the
witnesses could be subpoenaed. The District Court denied Timblinls
motions. Timblin was found guilty by the court and sentenced to 35
years in the Montana State Prison, with five years suspended and
without credit for time served. This appeal followed.
Our standard of review is to determine whether the trial court
abused its discretion in denying the motion for a continuance.
Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d
601.
On the second day of the two day bench trial, the District
Court denied Timblinls motion to continue until Timblin could
locate and serve subpoenas on C.T. and K.T. The District Court,
for purposes of the record, stated that its calendar was full. It
further stated that Timblin should have subpoenaed C.T. and K.T.
prior to trial. We agree with the District Court that a criminal
defendant must plead and prove his or her own case, thus calling
witnesses in his or her own defense. See Ferrari v. United States
(9th Cir. 1957), 244 F.2d 132, 142, cert. denied sub nom Cherpakov
v. United States (1957), 355 U.S. 873. In this instance, due to
the lack of notice of changed testimony, a continuance would have
been proper.
Timblin argues that under Schwartzmiller v. State (Idaho App.
1985), 699 P.2d 429, and Singleton v. Lefkowitz (2nd Cir. 1978),
583 F.2d 618, he was denied his rights to compulsory process, due
process, and a fair trial. Schwartzmiller set forth three criteria
in determining whether compulsory process has been denied:
1. The nature and extent the government conduct
contributed to the unavailability of the witness;
2. The importance of the evidence to the
defendant's case; and
3. The defendant's diligence in exercising his
Sixth Amendment rights.
Schwartzmiller at 430-431.
As Schwartzmiller pointed out, each inquiry is important, but
all three need not be satisfied. Schwartzmiller at 431. In the
case before us, after the change of testimony on the part of P.T.,
the importance of the younger girls1 testimony increased
significantly. Timblin diligently had subpoenas issued for C.T.
and K.T., hired an investigator to help locate them, and made the
proper motions in order to accomplish service.
In Sinaleton the Second Circuit held that the defendant was
denied his right to compulsory process when the trial court refused
an adjournment to secure the presence of a witness. The court
stated that denial of a defendantls right to present a defense
deprives the defendant the right to a fair trial. Sinuleton at
625. Additionally, due process guarantees that a criminal
defendant will be treated with the fundamental fairness essential
to the very concept of justice. Schwartzmiller at 430. (citations
omitted)
We conclude that the District Court abused its discretion in
denying Timblinlsmotion for continuance. A reasonable continuance
would have satisfied Timblinlsconstitutional rights. The presence
of the two girls at trial would have allowed Timblin to test the
credibility of the victim. The change in P.T.'s testimony goes to
her credibility. The credibility of a witness is of utmost
importance between a sexual abuse victim and a denying defendant.
It is often the only defense available.
For the reasons stated above, we remand to the District Court
@~~fle
for a new trial.
/ Justice
We Concur:
Chief Justice
Chief Justice J. A. Turnage, dissenting:
I respectfully dissent.
The majority opinion of the Court reverses the bench trial
conviction of the defendant of sexual intercourse without consent
committed upon the person of his then fourteen-year-old natural
daughter, P.T., and orders a new trial for defendant.
The sole basis for the majorityls decision to reverse the
conviction is the conclusion that the trial judge abused his
discretion in refusing counsel's motion for a continuance made
during the trial for the purpose of allowing defendant to subpoena
his two other natural daughters, C.T. and K.T. At the time of the
offense, C.T. and K.T. were nine and ten years of age respectively.
They were approximately ages eleven and twelve at the time of
trial.
From the date of filing of the information on June 6, 1989,
defendant was aware that C.T. and K.T. were the potential witnesses
referred to in the information and potentially witnesses to be
called at the trial. C.T. and K.T. had been subpoenaed by the
State but were not called to testify and had been released from
subpoena prior to trial.
Defendant had the opportunity prior to trial to depose C.T.
and K.T. Defendantlscounsel did notice a deposition of C.T., and
thereafter her deposition was taken on October 16, 1989, with
defendant's counsel present along with the deputy county attorney.
The defendant, having knowledge of these potential witnesses, chose
not to subpoena them for testimony on his behalf.
The State is under no obligation to call all of the witnesses
that it subpoenaed. It is the duty of the defendant and his
counsel to subpoena their own witnesses and prepare for the
defendant's case. The defense is not entitled to rely upon the
witnesses subpoenaed by the State.
Defendant's counsel's request for a continuance for the
purpose of subpoenaing C.T. and K. T. , mid-trial, was based on an
inconsistency in the testimony of P.T. as to whether the offense
was committed in a bathroom or a bedroom in defendant's residence,
and whether C.T. and K.T. were in the residence all the time or
whether they were outside part of the time during the commission of
the offense.
In my view, any direct or cross-examination of C.T. or K.T.
would have been cumulative and not probative to a degree that would
have created reasonable doubt or altered the decision of the court.
In bench trials, the trial judge should be more willing to
consider a reasonable request for continuance. The delay would
not, in all probability, be as inconvenient as it may be in a jury
trial. In this case, however, the trial judge did not abuse his
discretion in denying the continuance.
The overwhelming testimony submitted by the State in proof of
the defendant's guilt, which is plain from the totality of the
record, leaves no room for a reversible error in the denial of the
motion for continuance. At most, it was a harmless error, and I do
not concede that it was error in any event.
The totality of this record, when carefully reviewed,
establishes from the testimony of the victim, P.T., that defendant
had committed sexual assaults upon her commencing from the time she
was approximately five years of age and continuing over several
years. The sexual assaults commenced with sexual fondling and
escalated to acts of sexual intercourse, including oral inter-
course. These acts occurred with an astounding frequency, ending
on or about August 23, 1987, with the act on which defendant stands
convicted.
The State made an appropriate motion under Rule 404(b),
M.R.Evid., to introduce prior acts of the defendant and, after
briefing and argument, the Court granted the State's motion. The
prior acts were testified to in much detail by the victim, P.T.
That testimony included the fact that the defendant had signed a
deferred prosecution agreement on November 20, 1987, wherein he
admitted that approximately three years prior to that date, he had
committed the offense of sexual assault upon the victim in this
case, his daughter P.T. Pursuant to the agreement, his prosecution
for that offense was deferred for two years. The agreement was
entered into evidence without objection as State's Exhibit 1.
Direct or cross-examination of C.T. and K.T. concerning an
event that occurred when they were nine and ten years of age, over
two years prior to trial, relating to whether or not they were
present in the residence and whether the victim and the defendant
were in the bedroom or the bathroom during the commission of the
offense, simply does not rise to a probative value that warrants a
reversal of this conviction.
I would affirm.