No. 96-036
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JOSEPH MONACO,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Suzanne C. Smith, Douglas W. Marshall;
Marshall & Smith, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Ass't Attorney General,
Helena, Montana
A. Michael Salvagni, Gallatin County Attorney,
Jane Mersen, Deputy County Attorney,
Bozeman. Montana
Submitted on Briefs: June 4, 1996
Decided: July 8, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.
Joseph Monaco (Monaco) appeals from the sentence and judgment
of the Eighteenth Judicial District Court, Gallatin County, entered
on a jury verdict convicting him of felony theft. We affirm.
Monaco raises the following issues on appeal:
1. Did the District Court abuse its discretion in allowing
the prosecuting attorney to testify relating to the defendant's
statements at a deposition?
2. Did the District Court err in denying defendant's motion
to exclude evidence relating to defendant's prior acts?
Monaco was employed by Hargrove Trucking of Bozeman, Montana,
as a log-truck driver. On July 5, 1990, Monaco was hauling logs
from a job-site near Augusta, Montana. En route, he received a
call on his radio from Bob Piper, a Hargrove employee, requesting
that Monaco pick up, and attach, a trailer to his truck in Augusta
on his way to the job-site. Monaco asserts that he did not have
the proper equipment to pick up the trailer but that he was
directed to do so or risk losing his job. Monaco claims that he
attempted to hitch up the trailer to his truck and, in so doing,
injured his back.
Monaco filed a claim with the State Mutual Compensation
Insurance Fund (State Fund). State Fund accepted the claim and, in
all, paid Monaco $22,116.36 in benefits. On August 12, 1994,
Monaco was charged with felony theft in violation of §§ 45-6
301(5)(b) and 45-6-301(7) (b), MCA. The information alleged that
during the period between the alleged accident on July 5, 1990 and
December of 1991, Monaco purposely or knowingly obtained or exerted
2
unauthorized control over benefits from the State Fund by means of
deception or other fraudulent action. Trial commenced on September
18, 1995 and the jury returned a guilty verdict on September 22,
1995. Additional facts will be set forth as necessary for our
resolution of the issues.
1. Did the District Court abuse its discretion in allowing
the prosecuting attorney to testify relating to the defendant's
statements at a deposition?
Monaco asserts that the District Court abused its discretion
in allowing Assistant Attorney General and Special Deputy County
Attorney Elizabeth Horsman-Wiitala, to testify as to statements
made by Monaco in his deposition given in related civil proceedings
before the Workers' Compensation Court. Horsman-Wiitala was
previously counsel for State Fund and was present at Monaco's
deposition. By the time of the criminal trial, however, the
certified copy of the deposition had been lost and the District
Court ruled that Horsman-Wiitala could testify regarding Monaco's
deposition testimony that he had no prior industrial injuries.
Although the court initially stated that Horsman-Wiitala's
testimony would be "foundational" only, the court then instructed
the jury that "she's going to testify as to the deposition and the
contents thereof." Thus, Monaco's counsel was on notice that the
contents of the deposition would be before the jury through
Horsman-Wiitala's testimony.
At trial, Monaco's objection to Horsman-Wiitala's testimony
was directed to the question of whether Monaco had reviewed and
signed his deposition and to the question of "whether or not
3
[Horsman-Wiitalal has an interest in the outcome of this case." In
cross-examiningHorsman-Wiitala, Monaco's counsel focusedprimarily
on whether Monaco had signed the deposition. Monaco did not
present the District Court with the argument that Horsman-Wiitala's
testimony should not have been admitted or that she, having become
a witness, should not have been allowed to continue prosecuting the
case. Monaco raises these arguments for the first time on appeal.
In fact, the inquiry into whether Horsman-Wiitala would be
disqualified from continuing to prosecute the case after she
testified was raised solely by the deputy county attorney assisting
Horsman-Wiitala
This Court has consistently held that the failure to object
constitutes a waiver of the objection pursuant to § 46-20-104, MCA,
unless the circumstances come within an exception found at § 46-20-
701(2), MCA. State v. Riley (1995), 270 Mont. 436, 439, 893 P.2d
310, 313 (citing State v. Arlington (1994), 265 Mont. 127, 158, 875
P.2d 307, 326); State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2~7
1290, 1294. Section 46-20-104(2), MCA, provides:
(2) Upon appeal from a judgment, the court may
review the verdict or decision and any alleged error
objected to which involves the merits or necessarily
affects the judgment. Failure to make a timely objection
during trial constitutes a waiver of the objection except
as provided in 46-20-701(Z). [Emphasis added.]
Section 46-20-701(2), MCA, provides:
(2) Any error, defect, irregularity, or variance
which does not affect substantial rights shall be
disregarded. No claim alleging an error affecting
jurisdictional or constitutional rights may be noticed on
appeal, if the alleged error was not objected to as
provided in 46-20-104, unless the defendant [convicted
person] establishes that the error was prejudicial as to
4
his guilt or punishment and that:
(a) the right asserted in the claim did not exist
at the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant [convicted
person] or his attorney that prevented the claim from
being raised and disposed of; or
Cc) material and controlling facts upon which the
claim is predicated were not known to the defendant
[convicted person1 or his attorney and could not have
been ascertained by the exercise of reasonable diligence.
In the instant case, the record does not suggest, nor does
Monaco argue, that any of the exceptions enumerated in § 46-20-
701(2), MCA, apply. Rather, Monaco invites this Court to invoke
the "plain error" exception to § 46-20-104, MCA. See, e.s.. State
v. Finley (Mont. 1996), 915 P.2d 208, 212, 53 St.Rep. 310, 312. We
decline Monaco's invitation.
Although we recently held that the doctrine of common law
plain error review continues to survive despite the existence of
Montana's plain error statute, this appeal does not represent the
exceptional case necessary to invoke the plain error doctrine.
Finley, 915 P.2d at 215 (citing Arlington, 875 P.2d at 322). In
Finlev, we discussed the background and application of the common
law doctrine of plain error as well as the statutory requirements
of § 46-20-701(2), MCA. In Finlev, we held that:
this Court may discretionarily review claimed errors that
implicate a criminal defendant's fundamental
constitutional rights, even if no contemporaneous
objection is made and notwithstanding the inapplicability
of the § 46-20-701(2), MCA, criteria, where failing to
review the claimed error at issue may result in a
manifest miscarriage of justice, may leave unsettled the
question of the fundamental fairness of the trial or
proceedings, or may compromise the integrity of the
judicial process.
5
Finlev, 915 P.2d at 215.
Here, the District Court's determination that Horsman-Wiitala
could testify as to Monaco's deposition statement that he had had
no prior industrial injuries does not rise to the level of a
manifest miscarriage of justice, will not leave unsettled the
question of the fundamental fairness of the trial or proceedings,
nor will it compromise the integrity of the judicial process. See
Finlev, 915 P.2d at 215. Accordingly, we determine that Monaco's
failure to make a contemporaneous objection precludes this Court
from addressing this argument. Section 46-20-104(2), MCA; Riley,
893 P.2d at 313; Stuit, 885 P.2d at 1294; Arlinoton, 875 P.2d at
325-26.
In addition, we note that Monaco's false statement in the
deposition that he had never filed a prior claim would have been
before the jury in any event. Even if Horsman-Wiitala had been
precluded from testifying as to the contents of the deposition, her
testimony laid the foundation for another witness, the State's
investigator, to rely on the contents of the deposition which were
part of his investigation file. Monaco raised no substantive
objection to Horsman-Wiitala's characterization of his deposition
testimony. Horsman-Wiitala's testimony accurately reflected
Monaco's statement. Thus, Monaco was not prejudiced by Horsman-
Wiitala's testimony and any error by the District Court in allowing
her testimony would have been harmless under the facts of this
case. See Arlincrton, 875 P.2d at 325.
2. Did the District Court err in denying defendant's motion
to exclude evidence relating to defendant's prior acts?
6
In reviewing evidentiary rulings of the district court, we
determine whether the district court abused its discretion. State
v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The
determination of whether evidence is relevant and admissible is
left to the sound discretion of the trial judge and will not be
overturned absent a showing of abuse of discretion. State v.
Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; Gollehon,
864 P.2d at 1263.
In filling out his State Fund claim, Monaco stated that he had
not made any prior claims. As the State correctly notes, it was
required to establish the existence of the prior claims in order to
show that Monaco's statement was false and, therefore, that Monaco
committed theft by deception. Monaco asserts that the District
Court abused its discretion when it denied his motion to exclude
evidence relating to allegedly fraudulent workers' compensation
claims he filed in Florida and Wyoming. Monaco argues that the
court, in allowing evidence that he filed prior claims and
excluding all evidence of the details of the claims unless he
attempted to explain them away, "left the door open for the
remaining Florida and Wyoming evidence to become admissible if
[Monaco] attempted to cross examine. . . .I' According to Monaco,
the court's ruling had the effect of denying him his Sixth
Amendment right to cross-examination. Monaco argues that if he
were to cross-examine witnesses regarding the filing of the Florida
and Wyoming claims, then, through the State's anticipated rebuttal,
specific details of those claims would be before the jury.
7
The State counters that the District Court properly limited
the evidence to the filing of the Florida and Wyoming claims either
as part of the corpus delicti of the charge of theft by deception
or, alternatively, as evidence of other acts under Rule 404(b),
M.R.Evid. Further, the State asserts that if Monaco "opened the
door" to the substance of the prior claims the State would be
allowed to refute that testimony. We agree.
In State v. Hage (1993), 258 Mont. 498, 506, 853 P.2d 1251,
1256, this Court noted that the State is entitled to present the
entire corpus delicti of the crime charged, including matters
closely related to the offense and explanatory of the crime.
Establishing the fact that Monaco had previously filed claims in
Florida and Wyoming was essential to show that Monaco lied to State
Fund when he stated that he had not filed prior claims. Therefore,
the evidence of previous claims having been filed was properly
admitted as part of the corpus delicti of the crime of fraud by
deception; accordingly, we need not address Monaco's argument that
the evidence should have been excluded as "other crimes" evidence
under Rule 404(b), M.R.Evid., State v. Matt (1991), 249 Mont. 136,
814 P.2d 52, and State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
We hold that the evidence was admissible as part of the corpus
delicti and that the District Court did not abuse its discretion in
denying Monaco's motion to exclude evidence of the prior claims.
Affirmed.
We concur:
9
CERTIFICATE OF SERVICE
I herebycertify that the following certified order was sentby United Statesmail, prepaid,to the
following named:
Suzanne Smith, Esq.; DouglasW. Marshall,Esq.
C.
Marshall& Smith
113South19thAvenue
Bozeman 59715
MT
Hon. Joseph Mazurek,Attorney General
P.
JohnPaulson,Assistant
215 N. Sanders
HelenaMT 59620
A. MichaelSalvagni,CountyAttorney
JaneMersen,Deputy CountyAttorney
615 South16thStreet
Bozeman 59715
MT
ED SMITH
CLERK OF THE SUPREMECOURT
STATEOF MONTANA