Big Sky Blawg

State v. Kalal, 2009 MT 103

As a matter of first impression, SCOMONT ruled that in assessing the issue of mitigation for damages in a criminal case, the test is:

What would a reasonable and prudent person be expected to do if capable, under the circumstances?

Kalal pled guilty to stealing a tractor from Petranek and was ordered to pay restitution for the value of the tractor and other items of stolen property (an obligation he fulfilled).  Petranek sought additional restitution for loss of income in the amount of $21,724, his claim as follows:

(1) To build a two and one half mile fence between his ranch property and adjacent BLM land, which would allow his property to be leased for summer grazing.  The ranch property is 75 miles from Petranek’s home.  This resulted in a claim of $5,040 in lost income.

(2) To complete construction of a cabin which could be rented for 60 days a year for $6,000; further the cabin would facilitate leasing his property for hunting and fishing for some $5,764.

(3) To seed 120 acres for grass production and farming.  This resulted in a claim of lost inclome of $4,920.

Kalal, ¶ 3.  On cross-examination, Kalal’s attorney established that there were other tractors to rent, that the price of rental was $130-140 per day, and that Petranek would have needed 9 days to complete the fencing, 7-10 days for the cabin construction, and 20 hours for the seeding.  Kalal contended that Petranek had a duty to mitigate his damages by renting a tractor for $3,080.

The District Court awarded Petranek damages of $15,960 (apparently rejecting the claim for the hunting lease).  On appeal, SCOMONT decided that “given the impracticability and expense of renting and transporting a tractor a long distance for short periods of time, an award of $15,960 for Petranek’s loss of income was reasonable.”  Kalal, ¶ 10.

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The defendant was ordered by the District Court to make restitution payments to the DOC (who would then make disbursements to her victims).  Instead, she made payments to one of her victims, who did not share with the other victims.  SCOMONT held that because Striplin made her payments to a victim instead of the DOC as ordered by the judge, it was not an abuse of discretion for the District Court to revoke her suspended sentence for failure to pay restitution.

The District Court, after revoking Striplin’s suspended sentences, sentenced her to five years with the DOC on each count, with all five years suspended.  The court also reimposed all the terms and conditions of her prior sentence except the obligation to pay restitution.  Instead, the court found Striplin did not have the ability to pay so (as an additional count) sentenced her to thirty days in the county detention center.  SCOMONT ruled that because the District Court revoked Striplin’s suspended sentence under § 46-18-203(7)(a)(iii), MCA, the additional condition requiring thirty days in the detention center was an additional, more burdensome, condition that the court had no authority to impose.

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On appeal, Glick argued that he should have been allowed access to a Presentence Investigation (PSI) report concerning a prosecution witness.  The District Court Judge excluded the report on the basis of an in camera review because she found no references to specific instances of truthfulness or untruthfulness that would be relevant pursuant to Montana Rule of Evidence 608(b).  Glick’s assertion was that this violated his constitutional right to due process, to present a complete defense, and to confront witnesses.

SCOMONT held, under Montana law, PSI reports must be part of the court record but may not be opened for public inspection.  The correct process is to have confidential state agency records reviewed in camera by the trial court to determine whether they contain information that is material to the defense.  The District Court did so in this case, and its denial of Glick’s motion for access to the PSI report was not error.

The Court also denied Glick’s claim that he was denied effective assistance of counsel based on an attorney conflict of ineterest. 

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When the annual State certification of a breathalyzer is offered into evidence and the author of the report is not present as a witness, the prosecution must have complied with M. R. Evid. 803(6) as part of the foundation for admitting the alcohol concentration breath test results into evidence.

M. R. Evid. 803(6) provides that written reports of the “state crime laboratory” are an exception to the rule excluding hearsay evidence, but only

when the state has notified the court and opposing parties in writing of its intention to offer such report or reports in evidence at trial in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.

The notice requirement of the Rule is self-executing and does not depend on motion, demand, or objection of the defendant.

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A defendant’s sentence may be enhanced under the Persistent Felony Offender Statute when the second felony was committed before conviction of the first.  Even if the defendant had no convictions at the time she committed her second felony, she may still be sentenced as a PFO.  SCOMONT ruled that this was the clear precedent of State v. Hamm, 250 Mont. 123 (1991), and State v. Williamson, 218 Mont. 242 (1985), and declined to overturn those cases as “manifestly wrong.”

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Tyler claimed he should be allowed to withdraw his guilty plea because Williams (the woman he was accused of assaulting) testified at sentencing that Tyler did not actually hit her, he had a good heart, and she did not have any marks on her body.  The District Court rejected Tyler’s argument that this constituted new evidence, and sentenced him for partner family member assault.

In considering whether Tyler should have been allowed to withdraw his plea of guilty, SCOMONT used a five factor test to determine whether he presented newly discovered evidence sufficient to establish good cause to withdraw his guilty plea.  The factors are:

(1) the evidence must have been discovered since the defendant’s trial;
(2) the failure to discover the evidence sooner must not be the result of a lack of diligence on the defendant’s part;
(3) the evidence must be material to the issues at trial;
(4) the evidence must be neither cumulative nor merely impeaching; and
(5) the evidence must indicate that a new trial has a reasonable probability of resulting in a different outcome.

State v. Clark, 2005 MT 330 ¶ 34.  Tyler’s challenge failed under the first factor because his investigator had met with Williams and learned the same information months before Tyler pled guilty.  ”From the record before this Court, we must conclude Tyler was well aware Williams recanted before he pled guilty.  Thus, the fact that she had done so is not newly discovered evidence.”  Tyler, ¶ 15.

The record showed that Tyler entered his guilty plea voluntarily and he presented no new evidence creating just cause for the withdrawal of the plea.  Thus, the District Court did not err in denying Tyler’s motion.

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