No. 94-213
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff 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:
Hon. Joseph P. Mazurek, Attorney General; John
Paulson, Assistant Attorney General, Helena, Montana
Mike Salvagni, Gallatin County Attorney; Gary Balaz,
Deputy County Attorney, Bozeman, Montana
For Respondent:
John M. Kauffman, Gallatin County Public Defender,
Bozeman, Montana
Submitted on Briefs: January 26, 1995
Decided: March 17, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana appeals the decision of the Eighteenth
Judicial District Court, Gallatin County, granting defendant Ernest
Pinkerton's motion to dismiss. We reverse.
The issue is whether the District Court erred in granting
Ernest's motion to dismiss the two-count information filed against
him.
On July 16, 1993, the Gallatin County Attorney's Office filed
an affidavit of probable cause and a motion for leave to file an
information charging Ernest with misdemeanor domestic abuse in
violation of 5 45-5-206, MCA, and felony assault in violation of
§ 45-5-202, MCA. The affidavit of probable cause was based on
statements made by Ernest's wife, Nadeen Pinkerton. Nadeen
initially made an oral statement to a law enforcement officer the
night of the incident and later supplied a written statement
containing similar allegations. Nadeen subsequently supplied the
Gallatin County Sheriff's Office with a second written statement in
which she recanted crucial allegations that she had made in her
previous oral and written statements.
Nadeen's initial statements alleged the following facts. On
the evening of July 3, 1993, Ernest and Nadeen were drinking at the
Fifth Ace Saloon in Gallatin Gateway. Nadeen and Ernest got into
an argument and Ernest left the bar on foot. Nadeen also left the
bar, got in her vehicle, and proceeded home. Nadeen picked up
Ernest on the way, and the two drove home together. Once home, the
couple continued to argue. During the argument, Nadeen alleged
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that Ernest grabbed her by the throat and threw her on the couch.
She also claimed that Ernest grabbed her hair and dragged her
toward the door.
Nadeen decided to leave. She packed some belongings and took
them to her vehicle. As she began to leave, Nadeen observed Ernest
in his pickup truck preparing to leave the residence. Believing
that Ernest was intoxicated, and knowing that his truck's brake
lights and tail lights were not operating, Nadeen positioned her
vehicle behind his truck to prevent him from leaving. Ernest
backed his truck into Nadeen's vehicle and the vehicles became
locked together.
Nadeen claimed that Ernest exited his truck brandishing a .22
caliber pistol. Ernest pointed the gun at Nadeen, who was still
sitting in her vehicle, and threatened to kill her unless she
rolled down the window and gave him all his money. Nadeen
complied. Ernest continued to point the cocked and loaded gun at
Nadeen as he counted the money.
Nadeen alleged that Ernest slapped her twice in the head and
threatened that if she ever returned he would kill her. Ernest
eventually separated the two vehicles and Nadeen left the residence
in her vehicle. Nadeen drove to Bozeman and contacted the Gallatin
County Sheriff's Office.
Nadeen met with a sheriff's deputy and recounted these
allegations. The deputy observed swelling and discoloration around
Nadeen's eye. Nadeen remarked that her head hurt and showed the
deputy loose clumps of hair that she removed from her scalp. She
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told the deputy that she feared for her life when Ernest pointed
the gun at her.
Ernest was arrested in the early morning hours of July 4,
1993, and questioned about the incident. He admitted that he and
his wife argued at the saloon. Ernest also admitted that the
argument escalated into a physical confrontation. However, he
claimed he did not point the gun at Nadeen, but rather removed the
gun from the house and took it to his truck to prevent Nadeen from
having access to it.
Nadeen later supplied the sheriff's office with a second
written statement in which she recanted several of her previous
allegations. In the second written statement, Nadeen stated that
Ernest did not point the gun at her. Rather, she claimed Ernest
observed the pistol on the seat of her vehicle while the vehicles
were locked together. He then removed the gun from her vehicle and
put it in his truck. Nadeen's second written statement again
alleged a physical confrontation between Ernest and herself.
On February 10, 1994, Ernest moved to dismiss the charges
against him. He claimed that there was insufficient evidence to
convict him of the felony assault charge. He moved for dismissal
of the misdemeanor domestic abuse charge, claiming that because he
had not been brought to trial within six months of his arraignment,
he was entitled to a dismissal pursuant to § 46-13-401, MCA.
The District Court granted Ernest's motion to dismiss. The
court concluded that the State lacked sufficient evidence to
convict Ernest of felony assault. In dismissing the misdemeanor
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domestic abuse charge, the court concluded that the six-month
statutory period did not bar the misdemeanor prosecution while it
was joined with the felony assault charge. However, because the
felony was dismissed, the misdemeanor must stand on its own.
Because it had been more than six months since Ernest was arraigned
on the misdemeanor charge, and no other good cause being shown, the
court concluded that the misdemeanor domestic abuse charge must
also be dismissed. The State appeals.
Did the District Court err in granting Ernest's motion to
dismiss the two-count charge against him?
Because the District Court's rationale for dismissing the
misdemeanor domestic abuse charge depended upon the dismissal of
the felony assault charge, we first discuss the dismissal of the
felony assault charge. Section 46-13-401(l), MCA, reads:
The court may, either on its own motion or upon the
application of the prosecuting attorney and in further-
ance of iustice, order a complaint, information, or
indictment to be dismissed. However, the court may not
order a dismissal of a complaint, information or indict-
ment, or a count contained in a complaint, information or
indictment, charqinq a felony, unless sood cause for
dismissal is shown and the reasons for the dismissal are
set forth in an order entered upon the minutes. [Emphasis
added.]
Our standard of review is whether the District Court abused its
discretion by dismissing the information. State ex rel. Fletcher
v. Nineteenth Judicial District Court (1993), 260 Mont. 410, 413-
14, 859 P.2d 992, 994; State v. Schwictenberg (1989), 237 Mont.
213, 216, 772 P.2d 853, 856. This Court recently stated:
The legislature has not attempted to define the phrase
"in furtherance of justice" ., hence it is left for
judicial discretion exercised in view of the constitu-
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tional rights of the defendant and the interests of
society to determine what particular grounds warrant the
dismissal of a pending criminal action.
State v. Cummins (1993), 257 Mont. 491, 493, 850 P.Zd 952, 953,
(quoting State ex rel. Anderson v. Gile (1946), 119 Mont. 182, 187,
172 P.2d 583, 586).
The District Court determined that, regardless of how Nadeen
ultimately testified at trial, the State would have insufficient
evidence to convict Ernest. However, because the District Court
dismissed the information prior to trial, it did not hear Nadeen's
testimony. The court also did not independently examine Nadeen's
prior statements made to law enforcement. Rather, it relied solely
on the parties' interpretation of these statements.
While prior out-of-court statements made by a declarant are
generally inadmissible as hearsay, such statements are admissible
and can be used as substantive evidence under Rule 801(d) (1) (A),
M.R.Evid., which states:
(d) Statements which are not hearsay. A statement is not
hearsay if:
(1) Prior statement by witness. The declarant testifies
at the trial or hearing and is subject to cross-examina-
tion concerning the statement, and the statement is (A)
inconsistent with the declarant's testimony .
Thus, if Nadeen testifies at trial that Ernest did not point a gun
at her head, the State can introduce her first statement as a prior
inconsistent statement. The prior inconsistent statement can be
used as substantive evidence as well as to rebut her trial
testimony. State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d
1343, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118.
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The District Court concluded that a conviction cannot be based
solely on a prior inconsistent statement. The court relied on a
series of cases which state that a criminal conviction cannot rest
solely on a prior inconsistent statement. See State v. White Water
(1981), 194 Mont. 85, 634 P.Zd 636; Utah v. Ramsey (Utah 1989), 782
P.Zd 480; Brewer v. Alaska (Alaska Ct. App. 1986), 728 P.2d 645.
White Water, Ramsey and Brower are all cases in which the
witnesses testified at trial inconsistently with their previous
statements. Those cases held that a conviction could not rest
solely on a unsworn, out-of-court prior inconsistent statement. In
the present case, because the information was dismissed prior to
trial, there is not yet a prior inconsistent statement. Nadeen
gave two contradictory written statements to the Gallatin County
Sheriff's Office. However, until she makes a statement in court,
neither of these is a prior inconsistent statement under the rules
of evidence.
Likewise, because this case has not yet gone to trial, it is
unclear whether the potential prior inconsistent statement would be
the State's sole basis for seeking a conviction. In State v.
Charlo (1987), 226 Mont. 213, 735 P.2d 278, we upheld a conviction
based primarily on a prior inconsistent statement but which was
also corroborated by other circumstantial evidence. Charlo, 735
P.2d at 280. Thus, while a prior inconsistent statement standing
alone is insufficient to sustain a conviction, a corroborated prior
inconsistent statement may suffice.
The State contends that it will produce corroborating evidence
such as: (1) Nadeen's appearance and demeanor shortly after the
incident, (2) Ernest's admission that he did have physical
possession of the gun at the time of the incident, (3) testimony
concerning the couple's behavior at the Fifth Ace Saloon during the
evening in question, and (4) the recovery of a loaded gun from the
Pinkerton residence. Until the State presents its case-in-chief,
it is unclear what corroborating evidence it can produce.
Ernest argues that this case is more like White Water than
Charlo in that the witnesses in Charlo did not explicitly make an
inconsistent statement at trial, but rather, they merely claimed
that they could not remember what happened. However, this further
bolsters the State's argument. Neither the State nor Ernest knows
what Nadeen will say at trial. She may testify that she cannot
remember what happened. The State should have the opportunity to
call Nadeen to determine how she will testify under oath and to
produce corroborating evidence. Only after the State presents its
case-in-chief can the District Court properly determine if this is
a case of an uncorroborated prior inconsistent statement such as
White Water or a case of a corroborated prior inconsistent
statement such as Charlo.
Nadeen may also testify that Ernest did point the gun at her.
She may likewise have a reasonable rationale for making her second
written statement in which she claimed he did not point the gun at
her. If she testifies that he did point the gun at her, the State
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would not need to rely on a prior inconsistent statement. Rather,
it would be relying on the victim's sworn, in-court testimony.
The District Court concluded that if Nadeen testifies that
Ernest pointed the gun at her, Ernest could introduce her second
written statement to law enforcement as a prior inconsistent
statement. The District Court stated, 'I [gliven such inconsistent
evidence and the lack of independent evidence to support a
conviction, a reasonable jury could not conclude that guilt had
been proven beyond a reasonable doubt."
Neither the District Court nor Ernest cite any authority for
this proposition. The State, on the other hand, cites State v.
Maxwell (1982), 198 Mont. 498, 647 P.2d 348, for the proposition
that a conviction can rest solely on a victim's uncorroborated, in-
court testimony even if the victim has given a prior inconsistent
statement. While we note that this Court's holding in Maxwell was
specifically limited to cases involving victims of sexual inter-
course without consent, similar policy reasons exist in this case.
Like a victim of sexual intercourse without consent, a battered and
threatened spouse may have compelling reasons for making contradic-
tory statements.
If Nadeen testifies that Ernest did point the gun at her, she
should have the opportunity to explain why she made the prior
inconsistent statement. If she so testifies, her testimony should
be presented to the jury rather that being deemed insufficient as
a matter of law. It is the jury's role to weigh such testimony, in
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light of all other admissible evidence, and determine the credibil-
ity and weight it deserves.
We have addressed a few possible scenarios which may occur if
Nadeen is called to testify. Clearly there are other circumstances
which may arise if the State calls Nadeen as a witness. It is
precisely this uncertainty which renders the District Court's
dismissal of the information premature.
We conclude that the District Court erred in dismissing the
felony assault charge prior to trial. The dismissal was premature
and the State should be given the opportunity to present its case-
in-chief. This will allow the District Court to hear Nadeen's
testimony, if any. With this evidence the District Court can more
thoroughly and appropriately evaluate the merits of the State's
case. We reverse the District Court's dismissal of the felony
assault charge.
We conclude that the District Court's dismissal of the felony
assault charge was based on insufficient evidence to convict.
Therefore, we will not address the court's comments concerning the
sufficiency of the affidavit for leave to file an information.
Because the District Court's dismissal of the misdemeanor
domestic abuse charge depended upon the dismissal of the felony
assault charge, we vacate that dismissal and remand for further
proceedings consistent with this opinion.
Judge, sitting in place of
Justice John C. Harrison, Retired
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Justice William E. Hunt, Sr., dissenting.
I dissent from the majority opinion. A prior inconsistent
statement cannot be the sole substantive evidence upon which a jury
determines guilt. State v. Gommenginger (19901, 242 Mont. 265, 790
P.Zd 455; State v. White Water (1981), 194 Mont. 85, 634 P.2d 636.
Our rationale for this prohibition has been that it is unlikely
that a trier of fact could find the essential elements of a crime
charged beyond a reasonable doubt based solely on a prior
inconsistent statement. Gommenqinqer 790 P.2d at 463; White Water,
634 P.2d at 639.
In order to convict Ernest of felony assault under § 45-5-202,
MCA, the State must prove that he purposely and knowingly caused
Nadeen to reasonably apprehend serious bodily injury by use of a
weapon. The majority reasons that because "it is unclear whether
the potential, prior inconsistent statement would be the sole basis
for seeking a conviction," the State should be given the chance to
present its case in chief. However, in its brief in opposition to
Ernest's motion to dismiss, the State, relying on State v. Charlo
(19871, 226 Mont. 213, 735 P.2d 278, acknowledged that in order to
convict Ernest of felony assault it would have to corroborate
Nadeen's prior inconsistent statement. The State proposed to offer
as corroboration Nadeen's physical appearance and emotional state
on the night in question, evidence of the couple's argument at the
saloon, and Ernest's physical possession of the gun. While the
above might corroborate the charge of misdemeanor domestic abuse,
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it does not corroborate Nadeen's prior inconsistent statement that
Ernest pointed a gun at her head.
The district court may not dismiss a felony count without good
cause and without setting forth its reasons for the dismissal in an
order. Section 46-13-401(l), MCA. After applying Montana case law
to the facts, the District Court found good cause for dismissing
the felony assault charge against Ernest by concluding that under
any testimonial scenario it would be impossible for a jury to find
the essential element of § 45-5-202, MCA. The District Court then
set forth those reasons in its order. There is nothing in the
record to suggest that the District Court abused its discretion by
granting Ernest's motion to dismiss. I would affirm.
Justice Terry N. Trieweiler joins in the foregoing dissenting
opinion.
J stice
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