NO. 93-506
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
CITY OF MISSOULA,
Plaintiff and Respondent,
JAMES ASBURY, DEBORAH BAKER,
LONNIE BOSTON, CLAIRE BRISENDINE,
FRANK BRISENDINE, HELEN BROWN,
THOMAS BRUECKNER, STEVEN EUKER,
MIKE FARMER, JOHN GROVE, DEANA IRVINE,
PATRICK KINSELLA, GAIL KRAUTTER,
PATRICK MCCURDY, BRADLEY PRIGGE,
KEITH SIMMONS, ROGER SMITH, BRADLEY
STEPHENSON, and RALPH TURNER,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Patrick F. Flaherty, Attorney at Law,
Great Falls, Montana
For Respondent:
Judith L. Wang, Assistant City Attorney,
Missoula, Montana
Submitted on Briefs: April 7, 1994
Decided: A p r i l 27, 1 9 9 4
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
The numerous Appellants in this case appeal from an order of
the Fourth Judicial District Court, Missoula County, affirming the
judgment of the Municipal Court of the City of Missoula convicting
them of criminal offenses. The assertions of error relate to
alleged abuses of discretion by the Municipal Court in granting the
City of Missoulatsmotion in limine excluding certain testimony and
materials from evidence in the underlying criminal trial. We
affirm.
The relevant facts in this case are not in dispute.
Appellants were among numerous people arrested at the Blue Mountain
Clinic in Missoula on November 23, 1991, as a result of their
activities in blocking the Clinic doors and interfering with people
desiring to utilize the Clinic. All adult defendants were charged
with trespass, criminal contempt and disorderly conduct; the City
subsequently amended the charge of disorderly conduct to one of
failure of disorderly persons to disperse.
Certain defendants filed motions to dismiss the charges. A
number of notices of affirmative defenses also were filed. The
City of Missoula (City) filed a motion in limine requesting the
Municipal Court to exclude evidence purportedly relating to
defenses. The court denied the motions to dismiss and granted the
City's motion in limine.
A jury trial was held and Appellants were convicted of the
three offenses with which they were charged. They appealed their
convictions to the District Court on a variety of grounds,
including the granting of the City's motion in limine.
The District Court reviewed the record and questions of law
pursuant to 5 3-6-110, MCA. ~t rejected Appellantst assertions of
error, affirmed the judgment of the Municipal Court and remanded to
that court for execution of the sentences imposed. On motion of
the Appellants, the District Court subsequently stayed execution of
the sentences pending appeal to this Court.
Did the Municipal Court abuse its discretion in excluding
evidence relating to whether life begins at conception?
Appellants' assertions of error relating to the Municipal
Court's granting of the City's motion in limine are premised on the
principles that criminal defendants have a right to be heard and to
present a defense. These principles and their importance in
American jurisprudence are so fundamental and well-established as
to need no discussion or citation to authority.
It is equally clear, however, that limitations exist on the
right to be heard and present a defense. "In the exercise of this
right, the accused, as is required of the State, must comply with
established rules of procedure and evidence designed to assure both
fairness and reliability in the ascertainment of guilt and
innocence." Chambers v. Mississippi (1973), 410 U.S. 284, 302, 93
S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313.
In the case before us, the City filed a motion in limine--
primarily on relevance grounds--to exclude testimony and materials
to be offered by Appellants in connection with their "defenses."
The Municipal Court granted the motion.
3
"The purpose of a motion in limine is to prevent the
introduction of evidence which is irrelevant, immaterial, or
unfairly prejudicial." City of Helena v. Lewis (Mont. 1993), 860
P.2d 698, 700, 50 St.Rep. 1103, 1104 (citation omitted). We will
not overturn a court's grant of such a motion absent an abuse of
discretion. Lewis, 860 P.2d at 700.
The admissibility of the evidence to be offered by Appellants
at trial is, in the first instance, a question of relevance.
"Relevant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence." Rule 401, M.R.Evid. Relevant evidence
generally is admissible; "[elvidence which is not relevant is not
admissible." Rule 402, M.R.Evid. Relevant evidence in this case
relates to whether the Appellants committed the charged offenses
and whether any recognized defenses are applicable.
Defenses to criminal charges generally are matters of statute
in Montana. Defenses available include c compulsion^^ and "use of
force in defense of person," sometimes called the justifiable use
of force defense, as defined in §§ 45-2-212 and 45-3-102, MCA. The
compulsion defense merges the common law defenses of necessity,
justification, compulsion, duress and "choice of two evils." State
v. Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404.
Appellants herein do not specifically argue that any of the
evidence excluded by the grant of the City's motion in limine is
relevant to these, or any other, statutory defenses. Moreover,
they appear to concede that, under Lewis, the compulsion defense is
not available here because it does not excuse criminal conduct in
response to imminent threat of harm to a third party. See Lewis,
Appellants do present a lengthy discussion on when life
begins. They assert that the Municipal Court abused its discretion
in excluding evidence of their belief that life begins at
conception, without citing to any defense to which that evidence
might be relevant.
Appellants apparently are attempting to argue that, if life
begins at conception, they are entitled to rely on the justifiable
use of force defense. Insofar as is relevant here, that defense
justifies a person's "use of force . . . against another when and
to the extent that he reasonably believes that such conduct is
necessary to defend . . . another against such other's imminent use
of unlawful force." Section 45-3-102, MCA.
As best we can construct Appellants' argument, it is this:
1. Appellantsr acts of trespass would be
characterized as the "use of forcew against
another--the Clinic;
2. The Clinic's performing of abortions would be
characterized as the "use of force";
3. Appellants believe that life begins at
conception;
4. Under Appellantst belief, the fetus would be
against whom the use of force was
imminent ;
5. Thus, Appellantsv vvforciblevv
trespass would be
based on their "reasonable belief" that such
conduct was necessary to defend the fetus
against the imminent use of force by the
Clinic.
Even assuming (without so holding) that the first two
characterizations were appropriate, the statutory justifiable use
of force defense is not applicable to Appellants' conduct.
Section 45-3-102, MCA, requires that the use of force against
another alleged to be imminent, and to justify a corresponding use
of force, must be uunlawful." In light of the continued efficacy
of Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147,
the Clinic's activities cannot constitute the unlawful force
required for application of the justifiable use of force defense as
defined in 5 45-3-102, MCA.
Appellants contend that our decision in Strzelczyk v. Jett
(Mont. 1994), - P.2d -, 51 St.Rep. 206, supports their position
that they were entitled to defend against criminal charges by
discussing when life begins. We disagree.
In Jett, we concluded that a full-term fetus is a "person" as
defined in 5 27-1-513, MCA, for purposes of bringing an action for
the tort of wrongful death. Jett, 51 St.Rep. at 208. We did not
reference or discuss issues of viability or when life begins.
Moreover, the concurring opinion in Jett specifically notes that
the case did not relate to abortion in any way, and briefly
discusses the differences between acts which might form the basis
for a negligence action for wrongful death and those which result
in a lawful abortion under Roe. Jett, 51 St.Rep. at 208 (Gray, J.,
specially concurring).
We conclude that the Municipal Court did not abuse its
discretion in excluding Appellants' evidence on when life begins.
for Appellantsf conduct.
Did the Municipal Court abuse its discretion in excluding
"treaty" or "international lawn defenses?
Several of the Appellants raised an issue of reliance on
treaties entered into by the United States in their motions to
dismiss in the Municipal Court. The City included reliance on the
treaty in its motion in limine, which was granted by that court.
In a section of their brief before us entitled "Whether the trial
court erroneously excluded the defense of international laws,ff
Appellants reassert that treaty issue here. The City responds that
the treaty/international laws issue is not properly before us. We
agree.
As set forth above, the District Court reviewed this appeal
from the Municipal Court under 3-6-110, MCA. Under that
procedure, unlike Ifappealstf trial de novo from justice court to
for
district court, the district court acts as an appellate court and
reviews questions of law presented on the record before it. See 5
3-6-110, MCA; In the Matter of Municiual Court Appeals to District
Court, Order of the Montana Supreme Court, dated May 12, 1992.
The Appellants filed a ffDefendantsf
Opening Brief,If together
with an appendix to that brief, in their appeal to the District
Court. The City filed a responsive brief. No further briefs were
filed. We have scrutinized the Appellantsf brief in the District
Court closely. It advances no issue regarding the treaty as
paramount law; indeed, the treaty Appellants attempt to rely on
here is never mentioned therein.
The principle that this Court will not address an issue not
8
Did the Municipal Court abuse its discretion in excluding
evidence of biblical or moral justification?
Appellants also assert that the Municipal Court abused its
discretion in precluding their ability to rely on biblical or moral
justification as a defense to the criminal charges against them.
As set forth above, defenses to criminal charges are statutory in
Montana. Appellants' individual religious and moral beliefs are
neither included in, nor relevant to, those statutory defenses.
In affirming a district court's rejection of biblical or moral
justifications for actions substantially similar to those of
Appellants here, we quoted with approval the following language
from Cleveland v. Municipality of Anchorage (Alaska 1981), 631 P.2d
"[tlhey [philosophers and religionists discussing civil
disobedience] have been in general agreement that while
in restricted circumstances a morally motivated act
contrary to law may be ethically justified, the action
must be non-violent and the actor must accept the penalty
for his action. In other words, it is commonly conceded
that the exercise of a moral judgment based upon
individual standards does not carry with it legal
justification or immunity from punishment for breach of
the law.'I
Lewis, 860 P.2d at 702-703. The same reasoning applies here.
Appellants' beliefs are sincere and fervent and Appellants are
entitled to hold and act upon them. Those personal beliefs,
however, do not provide legal justification for, or immunize
Appellants from the consequences of, acts which violate the
criminal laws of Montana.
We conclude that the Municipal Court did not abuse its
discretion in excluding evidence of biblical or moral justification
presented to the trial court is well-established. State v.
Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188, 1190. The
rationale underlying the principle--while seldom stated--is that
both fairness and judicial economy necessitate bringing alleged
errors to the attention of each court involved, so that actual
error can be prevented or corrected at the first opportunity. See
State v. Applegate (Or. App. 1979), 591 P.2d 371, 373. Here, of
course, the "treaty1I issue was presented to the trial court which,
in this instance, was the Municipal Court. However, the treaty
issue was not presented to the first-level appellate court--here,
the District Court.
While we have little experience in Montana with two-tiered
appeals such as that presently before us, the expressed rationale
clearly carries over into a two-tiered appeal. Thus, based on the
Appellants1 failure to raise the treaty issue at the first
appellate level in the District Court, we conclude that the issue
is not properly before us. As a result, we decline to address it.
AFFIRMED.
i
We concur: .
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April 27, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Roderick K. Ermatinger
ATTORNEYS INC., P.C.
301 West Spruce
Missoula, MT 59802
Robert C . Kelleher, Sr.
Attorney at Law
P. 0. Box 397
Butte, MT 59703
Patrick F. Flaherty
Attorney at Law
625 Central Ave. W, #I01
Great Falls, MT 59404
Frank and Claire Brisendine
731 Stuart
Helena, MT 59601
Helen A. Brown
233 Many Lakes Dr.
Kalispell, MT 59901-8365
Steven M. Euker
213 Glacier Drive
Lolo, MT 59847
Gail S. Krautter
524 First St.
Helena, MT 59601
John T. Lewis
P. 0. Box 4594
Butte, MT 59702
Patrick & Amanda McCurdy
106 Dunbar Avenue
Helena, MT 59601
Bradley Prigge
2618 Phillips St.
Butte, MT 59701-4134
Keith Simmons
P. 0. Box 4012
Missoula, MT 59806
Roger C. Smith
800 Cleveland
Missoula, MT 59801
Bradley & Shelley Stephenson
P. 0. Box 1402
Fort Benton, MT 59442-1402
Ralph Turner
509 Grandview Drive
Stevensville, MT 59870
Judith Wang
Deputy City Attorney
Missoula City Hall
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATkOF MONTANA