State v. Miller

NO. 8?-261

T N THE SUPREME COURT OF THE STATF O F M N A A

O T N

1988

THE STATE OF MONTANA,

P l a i n t i - f f and R e s p o n d e n t ,

-vs-

KENNETH ALBERT MILLER,

Defendant and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t ,

I n and f o r t h e County o f J e f f e r s o n ,

The H o n o r a b l e F r a n k M .

Davis, Judge p r e s i d i n g .

COTJNSEL OF RECORD :

For Appellant:

Edmund F . Sheehy, J r . , Cannon a n d S h e e h y , H e l e n a , Montana

For Respondent :

H o n o r a b l e Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana

John P. Connor, J r. , A s s i s t a n t A t t o r n e y G e n e r a l

R i c h a r d J. L l e w e l l y n , C o u n t y A t t o r n e y , B o u l d e r , Montana

Submitted: March 2 , 1988

Decided: May 4 , 1988

Filed:

MAY 4 - 1988

Clerk

Mr. Justice L. C. Gulbrandson delivered the Opinion of the

Court.

Kenneth Albert Miller (Miller) appeals his conviction

by jury trial and denial of his motion for a new trial. The

Fifth Judicial District Court, Jefferson County, Montana,

sentenced Miller to a 180-year sentence, 75 years on two

counts of deliberate homicide under the felony murder rule,

20 years for robbery, and 10 years for felony assault by

accountability. We affirm.

The issues we are presented with are stated as follows:

1. Did the District Court err in failing to grant

Miller's motion for a change of venue?

2. Did the District Court err in limiting the

introduction of character evidence pertaining to codefendant.

Sean Wentz?

3. Did the District Court err in denying Miller's

motion to dismiss at the close of the State's case-in-chief?

4. Did the District Court err in disallowing Miller

from cross-examining Wentz on the basis of a report prepared

for the defense but not supplied to the State?

5. Did the District Court err in disallowing

introduction of Exhibit 1 which portrayed Miller's version of

the crimes?

6. Was the jury verdict supported by sufficient

evidence?

7. Was Miller properly sentenced by the District

Court?

8. Did the District Court err in classifying Miller a

"Dangerous Offender"?

9. Did the District Court err in denying Miller's

motion for a new trial?

10. Should Miller be eligible for parole in 174 years?

Miller was charged by amended information with four

counts of deliberate homicide under 45-5-102 (1)(a) and (b),

MCA; robbery, S 45-5-401, MCA; and felony assault by

accountability, SB 45-5-202 and 45-2-302, MCA. On March 19,

1987, he was convicted by a jury of deliberate homicide under

the felony murder rule, robbery and felony assault by

accountability. He was found not guilty of purposely and

knowingly committing deliberate homicide. He was sentenced

as stated above. A motion for new trial was filed June 22,

1987. After a hearing, the District Court denied the motion

for new trial on July 24, 1987. Miller appeals.

On November 18, 1986, Miller and Sean Wentz went

hunting after completing work for the same janitorial

service. They were drinking. After failing to drop a deer

that Miller shot at, they returned to Helena. Wentz picked

up his 12-guage shotgun and they purchased more beer.

Miller and Wentz then proceeded south from Helena.

After hunting near Clancy for awhile, they went to Tings bar,

in Jefferson City, and consumed more alcohol. Miller

suggested they go to Boulder Hot Springs. The two departed

at approximately 8:45 p.m. and arrived in Boulder at the

Lounge bar. During this portion of the trip, Wentz fired his

shotgun four or five times out the window of Miller's white

1968 Volkswagen.

Once at the Lounge, Miller and Wentz drank tequila and

received instructions to the hot springs from Terrance Duffy,

the owner and bartender. They headed south but could not

find the resort. Wentz testified that they agreed to a

robbery plan about eleven miles south of Boulder and turned

off the highway onto a lane that led to the Wortman family

residence. Miller claimed he turned off to urinate. He

stated that the door to the car was open and he was unaware

of what Wentz was doing due to loud rock music from the car

stereo. Wentz, with a shotgun, was observed by Bill Wortman,

who opened the door to the trailer house when he heard dogs

barking. Wortman, a 14 year-old-boy, testified that he was

frightened and slammed the door when Wentz pointed the gun at

him.

Wentz testified that he and Miller were at the trailer

and Wentz had the shotgun. Marilyn Wortman testified to

hearing a car start and seeing lights. She and another son,

Shannon, both saw taillights. Marilyn called the police.

Shannon Wortman also testified to finding a shotgun shell in

the yard the next morning. The shell was taken by Mrs.

Wortman to the Sheriff's Office and identified later at trial

by experts as being ejected from Wentz's shotgun.

Deputy D.D. Craft responded to Wortman's call at 9:10

p.m. At approximately 9 : 1 5 to 9:20 p.m. he saw a white

Volkswagen heading toward Boulder and radioed Chief of Police

Dennis Sullivan. Sullivan testified to observing a white

Volkswagen at the Lounge at approximately 9:20 p.m.

Wentz and Miller testified that they drove back to the

Lounge in Boulder. Wentz claimed they returned for the

purpose of robbing the bar. Wentz testified he brought the

shotgun in to frighten the victims and that Miller entered

the bar in front of him. He said Duffy came from around the

bar and a struggle ensued. Wentz said Miller encouraged him

to shoot Duffy. During the struggle, according to Wentz's

first statement, the shotgun discharged. The County

Attorney, John Conner, challenged Wentz as to conflicting

previous statements and physical evidence. Wentz recanted

this statement and testified that Miller grabbed the gun and

shot Duffy. He said Miller handed the gun back to him and

began picking up the spent shotgun shell when Marie Duffy

entered the bar. According to Wentz, as Mrs. Duffy came into

the bar, Miller reached around him and pulled the trigger

while Wentz held the gun.

Miller claimed they returned to the Lounge for further

directions to Boulder Hot Springs. He stated that as he and

Wentz sat drinking at the bar, Wentz and Duffy began to

argue. Wentz left the bar and returned with the shotgun.

Upon seeing the gun, Duffy struggled with Wentz and the gun

fired. Miller said he went to the side of the bar next to a

beam and did not see the actual shooting of Duffy because he

was on his knees facing the wall.

After the shooting, Miller stated Wentz ordered him to

retrieve the casing and threatened to shoot Miller if he did

not comply. Miller claimed Mrs. Duffy then entered the rear

of the bar and Wentz shot her. Miller claimed Wentz forced

him to grab money from the cash register and some liquor

bottles. Miller gave the cash to Wentz. The two returned to

the Volkswagen and proceeded to Helena. Miller said Wentz

claimed he killed 32 people in California, had made it 34 and

could make it 35.

The local Boulder authorities were notified of the

homicides at approximately 10:OO p.m. The Helena authorities

were notified by an all points bulletin. Upon returning to

Helena, Miller and Wentz proceeded to steal a Jeep and pickup

at a local car dealership. They then drove the stolen

vehicles to the residence of Tammy Harding, Wentz's fiancee.

She testified that Wentz and Miller entered the apartment and

Wentz told her two people were down in Boulder and Miller had

shot them. At trial, inconsistent testimony was presented

that Wentz told Harding he had shot the Duffys after Mr.

Duffy and he had argued.

Wentz grabbed clothes and additional ammunition from

the apartment. He and Miller then drove to a local car wash,

left the Jeep and returned to the automobile dealership to

retrieve Miller's Volkswagen. Chester Richey, a fellow

employee of Wentz and Miller for the janitorial service,

testified Wentz was brandishing the shotgun when he returned

to the dealership. Wentz told Richey not to call the police.

Richey stated Miller did what Wentz told him.

After Wentz and Miller left Tammy Harding's residence

the first time, she telephoned her father and he had his wife

notify the Helena police to dispatch an officer to Tammy

Harding's residence. Mr. Harding went to Tammy Harding's

residence and testified to seeing the two vehicles return

with "the black Chevy pickup coming first into the driveway."

With Miller driving the Volkswagen and Wentz driving the

pickup, the two did return to the circular driveway next to

Harding's apartment but did not leave their vehicles. Miller

claimed he drove to Harding's residence hoping the police

would stop them on the street. Miller and Wentz sped away

from the complex when they saw Helena Police Officer Brad

Hampton through Tarnmy Harding's windows. The two individuals

fled with Hampton in pursuit ultimately returning to the car

wash.

Hampton testified that he stopped Wentz and told him to

get on the ground face down. As Wentz did so, he threw some

money and stated that Miller had done the shooting. Miller

at this time did not stop but instead drove over a rocky

embankment and onto the road heading away from the car wash.

Miller was stopped shortly thereafter by officer Frank Melton

who ordered Miller to go "down into a prone position on the

ground" at which time keys to the stolen Jeep fell out of his

pocket. These keys were found underneath Miller but he

stated they were not his. Miller denied any knowledge as to

why he was stopped.

Wentz, after being read his Miranda rights, made

several statements to the arresting officers and officers at

the Lewis and Clark County Jail to the effect that Miller had

done the shootings. Wentz also gave a recorded statement to

Jefferson County authorities. Miller denied that he was ever

in Boulder but was too intoxicated to make any other

statements.

After the trial and sentencing, Wentz, while

incarcerated at the state prison, wrote two letters to

defense counsel for Miller exculpating Miller of the crimes.

In the letters Wentz admitted to contriving the robbery

scheme, committing the murders and threatening Miller into

assisting. At the hearing on the motion for a new trial, the

District Court disallowed the letters saying they were

hearsay and even if they were not, the court would not

overturn the jury's decision.

Motion to Change Venue

Miller contends the District Court erred in denying his

motion to change venue. This motion was properly filed prior

to trial and contained an affidavit and copies of newspaper

articles about the murders.

Miller claims that an article that appeared in the

December 4, 1986 Helena Independent Record, with a picture of

Miller containing a caption "fingered as having fired fatal

shoots" was inflammatory and prejudiced the jurors. He

further argues that two stories in the Butte

Montana Standard, November 20, 1986, and November 21, 1986,

and a video tape from Helena's KTVH television station of the

motion to change venue hearing on November 18, 1986, had the

same impact on the jury population. Miller claims the

District Court abused its discretion in failing to grant the

motion because a reasonable possibility existed that Miller

could not get a fair trial in Jefferson County.

Section 46-13-203(1), MCA, provides that a defendant

"may move for a change of place of trial on the ground that

there exists in the county in which the charge is pending

such prejudice that a fair trial cannot be had in such

county." A defendant, who is seeking a change of venue on

the grounds of prejudicial publicity, must prove two

elements: (1) he must show that the news reports complained

of were inflammatory; and (2) he must show that the

publication or articles actually inflames the prejudice of

the community to an extent that a reasonable possibility

exists that he may not receive a fair trial. State v.

Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832; see,

State v. Bashor (1980), 188 Mont. 397, 403-407, 614 P.2d 470,

474. As we said in Ritchson, the first test focuses on the

nature of the publicity while the second focuses on the

effect.

Upon review, we look not to the amount of publicity but

rather to whether the publicity is of sufficient inflammatory

nature to generate a widespread belief among the community of

guilt. This inflammatory nature must be proven by the

defendant who alleges denial of a fair trial. See, State v.

Holmes (1983), 207 Mont. 176, 181, 674 P.2d 1071, 1073; State

v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324.

Denial of a motion for change of venue is not

reversible error in the absence of an abuse of discretion by

the trial court. State v. Smith (Mont. 1986), 715 P.2d 1301,

1309, 43 St.Rep. 449, 458; State v. Kirkaldie (1978), 179

Mont. 283, 587 P.2d 1298. We stated the proof required for a

court to change venue as follows:

A defendant seeking a change of venue

must show that there is reasonable

grounds to believe that a prejudicial

atmosphere exists within the present

venue which creates a reasonable

apprehension that he cannot receive a

fair trial.

Ritchson, supra, 199 Mont. at 54, 647 P.2d at 832; State v.

Link (Mont. 1981), 640 P.2d 366, 368, 38 St.Rep. 982, 985.

Miller did not reach this burden of proof and the District

Court did not abuse its discretion in denying his motion.

Miller's motion was supported by his counsel's

affidavit stating facts in support of alleged prejudice.

These facts included the following statements: (1) that the

population of Jefferson County was so limited that it was

"virtually impossible" to pick a jury that was not either

acquainted or familiar with the Duffys; (2) that the crime

was subject to substantial and continuing media coverage such

that "it can be reasonably apprehended that a fair trial in

Jefferson County cannot be had;" and (3) that the attached

articles to the affidavit went beyond objective dissemination

of information.

Review of the articles shows that the majority of the

national papers were largely concentrating on the victims'

famous son, Patrick Duffy, of the television program

"Dallas." The local publications contained factual reports

of information gathered from law enforcement officials, that

was limited and accurate, or from court records that were

public knowledge. The reports were factual, contained no

editorializing and could not have served to inflame the

prejudice of the community. State v. Dryman (1954), 127

Mont. 579, 581-583, 269 P.2d 796, 797-798.

The affidavit was conclusory in nature and failed to

show a connection between any inflammatory articles and

possible prejudice of the community. Mere allegation of

inflammatory material is insufficient if the second

requirement enunciated in Ritchson, supra, is not proven,

e.g., that the articles actually inflamed community prejudice

to such an extent that a fair trial was impossible.

The defense made no inquiry at voir dire as to whether

any of the jurors had been influenced by the articles. There

was nothing established in voir dire to show the existence of

the "indicia of prejudice" we have required to support a

motion for a change of venue. See, State v. Armstrong

(1980), 189 Mont. 407, 423, 616 P.2d 341, 350; State v. Board

(1959), 135 Mont. 139, 143, 337 P.2d 924, 927.

At voir dire a number of jurors admitted knowing some

witnesses. Miller argues that People v. Tidwell (Cal. 1970),

473 P.2d 748, supports his contention where witnesses are

known by the jury that this interferes with the defendant's

right to a fair trial. However, Tidwell is easily

distinguishable in that there was press exposure based on

"investigating officers [keeping] the press and hence the

public, apprised of virtually every step in the progress of

their investigation." Tidwell, supra, 473 P.2d at 750.

Further, one-third of the twelve-person jury knew one or more

of the homicide "victims." In this case, all four of the

prospective jurors who knew the Duffys were removed by

peremptory challenge. At any rate, " [klnowledge on the part

of jurors is not sufficient and cannot be equated with

prejudice." Smith, supra, 715 P.2d at 1309.

We have approved of the use of voir dire to demonstrate

prejudice. State v. Nichols (Mont. 1987), 734 P.2d 170, 174,

44 St.Rep. 382, 387. And in Holmes, supra, where all the

jurors claimed they had heard of the defendant, but only two

people were removed because they expressed prejudice, we held

that the District Court had not abused its discretion in

denying a motion for a change of venue.

We note that voir dire is not the sole method to be

employed to determine whether prejudice exists. Paisley,

supra, 663 P.2d at 324; State ex rel. Coburn v. Bennet

(1982), 202 Mont. 20, 32-33, 655 P.2d 502, 508. However,

where no connection is made of inflammatory media coverage

and an excessive community prejudice, e .g. , through the use

of surveys, voir dire is an appropriate arena where prejudice

can be demonstrated.

Where the District Court has appropriately granted a

change of venue, the connection between inflammatory news

reports and the actual inflaming of community prejudice has

been shown. In Paisley, supra, we held that the court

appropriately granted a change of venue motion where a

written report of a criminologist who surveyed the

community's registered voters' opinions was submitted and

there was extensive editorializing by the local newspaper

against the defendant.

Miller argues that federal courts only require a

showing of publicity that "so pervades the proceedings as to

create a 'carnival atmosphere'" and defendant does not have

to show identifiable prejudice. Sheppard v. Maxwell (1966),

384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas

(1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rideau

v. State of Louisiana (1963), 373 U.S. 723, 83 S.Ct. 1417, 10

L.Ed.2d 663. We note that these cases involved significantly

more proof of prejudice, including opinion polls, than was

presented by Miller in this case.

The standard asserted by Miller presumes prejudice by

pretrial publicity without requiring actual proof. Coleman

v. Zant (11th Cir. 1983), 708 F.2d 541, 544. It has long

been the law of this state that prejudice in a criminal case

will not be presumed, but must appear from the denial or

invasion of a substantial right from which the law imputes

prejudice. State v. Steffans (1981), 195 Mont. 395, 636 P.2d

836; State v. Bubnash (1963), 142 Mont. 377, 382 P.2d 830.

Limitation of Character Evidence Pertaining to Wentz

Miller claims that the District Court erred in

disallowing Miller from presenting evidence of Wentz's

character through the testimony of Chester Richey, who worked

with both Miller and Wentz. Miller relies on Rule 404(c),

M.R.Evid., which states:

Evidence of a person's character or a

trait of his character is admissible in

cases in which character or a trait of

character of a person is an essential

element of a charge, claim, or defense.

This rule has not been interpreted by this Court and has no

federal counterpart. Statements in the Commission Comments,

Rule 404, M.R.Evid. are of no assistance.

Miller asserts the evidence to be solicited from Richey

would impeach Richey's statement that he was not "frightened"

of Wentz, and would expose the inaccuracy of a number of

other statements made by Richey. Upon review of the record,

we note that the District Court allowed Miller to make an

offer of proof. Counsel for Miller stated that he was going

to present two statements involving Wentz's claim "about

shooting niggers" and a comment that Wentz "was going to use

the shotgun to blow trees out of the ground."

An offer of proof allows counsel the ability to get

evidence on the record where the court determines that it

should be excluded. "In case the ruling is one excluding

evidence, the substance of the evidence [is] made known to

the court by offer or [is] apparent from the context within

which questions [are] asked. " Rule 103 (a) (2), M. R.Evid. An

offer of proof should be specific as to the facts to be

proven. Palmer v. McMaster (1891), 10 Mont. 390, 25 P. 1056.

A trial court cannot commit error without the arguing party

informing the court that a specific course of action is

legally improper. There is no statement by Miller here as to

what facts were to be proven or that an alternative manner

would be less objectionable.

The statements that Miller attempted to present to the

jury were cumulative in that they came out in various forms,

direct and indirect, throughout the trial after Richey

testified. There was testimony presented through a police

officer, defendant's witness Dave Johnson and through

cross-examination of Wentz himself that Wentz was a member of

the Arayan Brotherhood, a white supremacist organization.

Although not allowed to impeach Richey directly on the stand

at the time he wanted, Miller could have recalled the witness

in his case-in-chief and presented the evidence once the

compulsion defense was before the jury. Any error, defect,

irregularity, or variance which does not affect substantial

rights shall be disregarded. Section 46-20-701 (2), MCA. A

review of the record shows the court's exclusion was not

reversible error. State v. Gould (Mont. 1985), 704 P.2d 20,

30, 42 St.Rep. 946, 956; McGuinn v. State (1978), 177 Mont.

215, 223, 581 P.2d 417, 422; State v. Romero (1968), 161

Mont. 333, 341-342, 505 P.2d 1207, 1211-1212.

Motion to Dismiss

Miller claims the District Court erred in denying his

motion to dismiss Counts I and I1 dealing with purposely or

knowingly killing the Duffys which he was required to defend

but for which the jury found him not guilty. He further

claims the court erred in denying his motion to dismiss in

regards to Counts 11, IV and V dealing with the deliberate

homicide charges under the felony murder rule and robbery for

which he was convicted. Miller's final claim at this

juncture is the District Court erred in not granting his

motion to dismiss Count VI on the issue of accountability for

felony assault.

All of Miller's contentions are based on a claim of

insufficient evidence to support the State's case. Section

46-16-403, MCA, which deals with motions to dismiss or

directed verdicts shows that it is within the District

Court's discretion whether to dismiss an action at the close

of the State's case. State v. Longneck (19821, 201 Mont.

367, 373, 654 P.2d 977, 981; State v. White Water (Mont.

1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666. The

District Court's ruling will only be disturbed on appeal

where an abuse of discretion is shown. State v. Smith

(1980), 187 Mont. 245, 250, 609 P.2d 696, 698, overturned on

other grounds, 685 P.2d 918. In construing the statute, the

motion to dismiss is conditioned upon "insufficient evidence"

to support a finding of guilty. The motion "should be

granted only where there is no evidence upon which a trier of

fact could base a verdict." State v. Matson (Mont. 19871,

736 P.2d 971, 974, 44 St.Rep. 874, 877, citing State v. White

Water, supra, 634 P.2d at 638.

In State v. Roberts (1981), 633 P.2d 1214, 1218-1219,

38 St.Rep. 1551, 1556, we quoted the language of Jackson v.

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61

L.Ed. 2d 560, 573, to set out the required standard for

sufficient evidence stating:

[Tlhe relevant question is whether after

viewing the evidence in the light most

favorable to the prosecution, any

rational trier of fact could have found

the essential elements of the crime

beyond a reasonable doubt.

Miller argues that insufficient evidence was presented to

support any of the above stated Counts. We disagree and find

that the District Court did not abuse its discretion in

denying the motions to dismiss.

Miller argues no corroborating evidence existed and

therefore Wentz's testimony, that especially connected Miller

with the deliberate homicide of the Duffys, should not have

been admitted because Miller claims no reasonable person

could have found Miller purposely or knowingly killed either

Duffy. Section 46-16-213, MCA, states that a conviction

cannot be had on the testimony of one responsible or legally

accountable for the same offense (5 45-2-301, MCA, defines

accountability) unless corroborating testimony, which is not

sufficient if it merely shows commission of the offense or

the circumstances, is presented. " [C]orroboration is

sufficient if, 'unaided by the testimony of an accomplice, it

tends to connect the defendant with the commission of the

offense. ' " State v. Morse (Mont. 1987), 746 P.2d 108, 113,

44 St.Rep. 1919, 1926, citing, State v. Gonyea (Mont. 1987),

Whether evidence is sufficient to

corroborate the testimony of an

accomplice is a question of law. The

evidence must show more than the fact

that a crime was committed. It must

raise more than a suspicion concerning

defendant's involvement in the crime.

However, it need not be sufficient, on

its face, to support a prima facie case

against defendant. State v. Kemp (19791,

182 Mont. 383, 386-387, 597 P.2d 96, 99.

The evidence need only "tend to connect"

defendant with the crime. State v.

Mitchell (Mont. 1981), 625 P.2d 1155,

1158, 38 St.Rep. 487, 489-490. Further,

the evidence may be circumstantial and it

may come from the defendant or his

witness.

State v. Cain (Mont. 1986), 718 P.2d 654, 656, 43 St.Rep.

The jury was presented with ample corroborating

evidence connecting Miller to the Duffy murders and the

felonious assault at the Wortman residence prior to the

testimony of Wentz.

Miller and Wentz were seen together a number of times

by numerous individuals on November 18, 1986. They were

together when Wentz picked up his shotgun. They were

identified by the bartender at Ting's bar in Jefferson City.

They were seen shortly thereafter at the Lounge bar in

Boulder. Bill Wortman identified Wentz as being on their

property and the testimony of the Wortmans' connected

Miller's car to that activity. Officer D.D. Craft,

responding to the Wortmans' call, identified a white

Volkswagen heading towards Boulder. Boulder Police Chief

Sullivan saw a white Volkswagen parked outside the Lounge

shortly after 9:15 p.m. that evening. Gunshots were heard by

Fred May, an employee at the Montana Developmental Center in

Boulder, at approximately 9: 30 to 9:45 p.m. as he walked to

work. Julie Sampson, a nurse at the Montana Development

Center, noticed a white Volkswagen parked in front of the

Lounge with its driver's side door open at approximately the

same time.

Miller and Wentz were together at the local car

dealership in Helena where they broke in and left in a Jeep

and pickup. Miller was seen driving the Jeep that was later

abandoned at Zig's Car Wash. He was observed at this time

following a black Chevrolet pickup which matched the

description of the vehicle Wentz was driving. The operative

word here being "following" Wentz. Miller attempted to keep

Wentz quiet about any of the night's events at Tarnmy

Harding's apartment. Miller also made statements to the

extent that the two should blow up the stolen vehicles.

Chester Richey identified Miller and Wentz together

when the two returned to the local car dealership to get

Miller's Volkswagen. After returning to Harding's residence,

where Miller was again seen "following" Wentz, the two fled

when they noticed a police officer. After finally being

stopped by the Helena police, Miller portrayed, not someone

under compulsion to commit crimes, but a person who had no

idea why he was stopped. The arresting officer saw no sign

of force or intimidation exercised by Wentz over Miller.

Miller told the arresting officer that he had no knowledge

about the Jeep keys found under his body. At the Lewis and

Clark County Jail, Miller stated he had never been to Boulder

and asked again why he was detained.

All of this evidence, although it does not create a

prima facie case against Miller, tends to connect him with

the charged crimes. Miller argues that State v. Bradford

(Mont. 1984), 683 P.2d 924, 41 St.Rep. 962, stands for the

proposition that "mere presence is not enough to prove

accountability." This characterization of Bradford is only

partially accurate. The actual quote of this case is:

Although mere presence at the scene of a

crime is not enouqh to establish

accountability, - ac&used need not take

the

- active - -in anv overt criminal acts

an art

to - adjidged crimrnally liable - -

- be for the

acts. [Citing, State v. Hart (Mont.

19811, 625 P.2d 21, 38 St.Rep. 1331.

-

(~m~hasis added. )

Bradford, supra, 683 P.2d at 930.

The above cited corroborative evidence shows the jury

could infer that Miller was involved in the crimes at the

Lounge and the Wortmans'. It also shows the jury could find

Miller had opportunity to escape from any force or

intimidation of Wentz numerous times but instead acted in

concert. The corroborative evidence shows that Miller and

Wentz could have acted in concert in the felonious assault of

Billy Wortman, in the robbery and murder of the Duffys, and

even, although the jury did not so find, that Miller had the

opportunity and motive to purposely and knowingly commit

deliberate homicide.

The State admits that much of the evidence connecting

Miller with the various charges was circumstantial but we

have held numerous times that circumstantial evidence is

sufficient to support a conviction. Roberts, supra, 633 P.2d

at 1218; State v. Johnson (1982), 197 Mont. 122, 127, 641

P.2d 462, 465-466; State v. Fitzpatrick (1973), 163 Mont.

220, 225, 516 P.2d 605, 609. However, in this instance, as

"[wle stated in Fitzpatrick, supra, that to justify a

conviction in a case based solely on circumstantial evidence,

the facts and circumstances must not only be entirely

consistent with the theory of guilt, but must be inconsistent

with any other rational (reasonable) conclusion." State v.

Lucero (Mont. 1984), 693 P.2d 511, 513, 41 St.Rep. 2509,

2511-2512.

With this statement that the evidence must be

inconsistent with any other reasonable conclusion, we must

look to the jury's verdict and the additional evidence

presented. Once the corroborative evidence was presented,

Wentz recited a version of the story much different from

Miller's. Under Wentz's story, Miller could possibly have

been convicted under Counts I and I11 for purposely and

knowingly killing the Duffys. There was also substantial

scientific evidence that was submitted that further supported

the fact that the shotgun had chambered and ejected shells

found at the Helena car dealership, the Lounge and the

Wortmans' residence. Blood stains on Miller's pants matched

the blood of Terrance Duffy. Various glass fragments from

the Lounge and the car dealership were found on Miller's

person.

The jury convicted Miller of deliberate homicide under

the felony murder rule meaning they did not believe FJentz's

version of the crime.

As this Court has held many times over,

the jury is the fact finding body in our

system of jurisprudence, and its decision

is controlling. The jury is free to

consider all the evidence presented and

to pick and choose which of the witnesses

it wishes to believe. If sufficient

testimony was introduced, as well as

exhibits to justify the jury's findings,

then its conclusions will not be

disturbed unless it is apparent there was

a clear misunderstanding by the jury or

that there was a misrepresentation made

to the jury.

Lucero, supra, 6 9 3 P.2d at 5 1 3 .

There is an absence of misunderstanding on the part of

the jury and no misrepresentation is alleged by Miller. As

the State appropriately points out, it submitted over 1,100

pages of testimony elicited from 3 1 separate witnesses and

over 1 0 0 exhibits. The jury was free to pick and choose to

believe any or all of this material. Sufficient evidence was

submitted to support the District Court's denial of the

motions to dismiss at the close of the State's case-in-chief.

Failure to Comply With Discovery

In anticipation of codefendant Wentz taking the stand,

counsel for Miller commissioned a private investigator to

prepare a report to be used for impeachment during

cross-examination. Although the defense was to provide "a

list of all papers, documents, photographs, and other

tangible objects which the defendant [planned to] use at

trial either as evidence or as a source of impeachment,"

counsel failed to provide the State with the private

investigator's report. The District Court refused to permit

counsel to examine Wentz with the information contained in

the report. Miller contends the investigator's report was

attorney work product within the meaning of S 46-15-324, MCA,

and therefore not subject to disclosure. We disagree.

The work product doctrine is a qualified evidentiary

privilege which reflects the actualities of an adversarial

system by extending limited protection to an attorney's

efforts on behalf of a client. Hickman v. Taylor (1947), 329

U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451. " ~ t

its core, the

work product doctrine shelters the mental processes of an

attorney, providing a privileged area within which he can

analyze and prepare his client's case." United States v.

Nobles (1975), 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45

L.Ed.2d 141, 154. The reality of our legal system demands

that the embraces of the protection also extend to agents of

the attorney. However, the privilege is not inviolate.

State ex rel. Carkulis v. District Court (Mont. 1987), 746

Nor is the scope of the work product doctrine so broad

as to encompass substantial evidence.

There is no doubt that if an attorney

uses at trial a statement he obtained and

prepared in anticipation of litigation in

interrogating or cross examining a

witness, the full statement, even though

work-product, must be produced at the

demand of the other side. [Citation

omitted.] By the use of the statement at

trial, the attorney has waived the work-

product protection, since the material in

the statement has become substantive

evidence.

Carkulis, 746 P.2d at 613-614. Counsel's election to use the

material contained within the investigator's report clearly

constituted a waiver of the work product privilege. His

attempt to label the report "impeachment material" is not

sufficient to escape discovery. See Hickman, supra,

(recognizing that impeachment and corroboration material is

subject to discovery).

In a related argument, Miller contends discovery

applies only to exhibits. However, contrary to Miller's

assertion, there is no indication that Montana's discovery

statutes were designed to limit disclosure to exhibits.

Section 5 46-15-323(4), MCA, provides for production of

papers and documents "which he will use at trial," not merely

those documents that will be offered as exhibits. Consistent

with the goal of achieving justice, Montana's discovery

scheme has inherently rejected the theory of trial by ambush.

See, State v. Waters (Mont. 1987), 743 P.2d 617, 44 St.Rep.

705. The purpose of a criminal trial is to ascertain the

truth. This aim is best realized through full disclosure and

presentation of the evidence, not surprise attacks.

The investigator's report fell within the scope of

5 46-15-323, MCA, and the State's discovery request. As

such, the report should have been provided to the State. The

District Court properly prohibited use of the report.

Denial of Defendant's Exhibit I

The District Court denied Miller's Exhibit I which

included diagrams and a written rendition by Miller of his

version of the crimes. The State objected to the

introduction of the document on the basis that it created

"undue influence" on the jury. Miller claims the document

was presented to show that his story was consistent with the

stories he related in November and December of 1986 and

showed that Miller did not "concoct" his version. The

District Court denied admission of the document. Miller

claims this was error.

The State did not object to the examination of Miller

in regard to the story, nor did it object to any of the

subject matter. However, the State did object to the

introduction of the exhibit. The version set out on the

document was presented once by Miller on the stand. It was

then repeated a second and third time by Lorna and Judy

Miller.

Miller was examined thoroughly by defense counsel and

the recitation of his version was we11 before the jury.

Further, defense counsel made it clear to the jury that the

account was the same as Miller told him in December.

The court was informed by the State that to allow the

document to go before the jury caused undue emphasis because

it was like "[transcribing] the statements of every witness

who testifies [to] have the jury look at them." In essence,

the District Court limited repetitious testimony.

In State v. Brietenstein (1979), 180 Mont. 503, 591

P.2d 233, we held that the trial court did not abuse its

discretion by excluding repetitious testimony under Rule 403.

In State v. Short (Mont. 1985), 702 P.2d 979, 42 St.Rep.

1026, we upheld the court's exclusion of tapes that were

merely cumulative. Citing, 31A C.J.S. Evidence, § 166.

Miller was allowed to inform the jury that his testimonial

rendition was consistent. No substantial right of Yiller was

affected by the court's disallowance of this document. Rule

103, M.R.Evid.

Sufficient Evidence to Support the Jurv--- Verdict

2

Miller contends the jury's verdict was not supported bv

substantial and credible evidence because, again, the only

evidence showing Miller was involved in the robbery was the

uncorroborated testimony of Wentz. Our discussion of the law

and facts under the motions to dismiss issue demonstrates

Wentz's testimony was not the only evidence connecting Miller

to the crimes charged.

The "test of evidence sufficient to warrant a directed

verdict of acquittal [Miller's relief requested under the

motions to dismiss issue] is the same as the test of

sufficiency of evidence on appeal, i.e. whether, viewing the

evidence in the light most favorable to the State,

substantial evidence exists to support a verdict of guilty."

State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079,

1085. We will not invade the province of the jury when they

are presented with varying stories. "[Wlhere the evidence is

conflicting or doubtful, either as to [whether the witness

for the State is an accomplice] or as to corroboration, the

court should not invade the province of the jury." State v.

Gonyea, supra, 730 P.2d at 426; citing, State v. Smith

(1925), 75 Mont. 22, 27, 241 P. 522, 523. The test we apply

to determine whether the jury's verdict is supported by

sufficient evidence is whether, after viewing the evidence in

a light most favorable to the prosecution, any rational trier

of fact, the jury could have found the requisite elements

beyond a reasonable doubt. State v. McHugh, (Mont. 1985),

697 P.2d 466, 469, 42 St.Rep. 371, 374. We conclude the

evidence presented, corroborating, circumstantial and direct,

was sufficient to support the jury's verdict. This evidence

is more thoroughly described above in our discussion on the

motions to dismiss.

Sentencing

The District Court sentenced Miller to a term of 75

years for his involvement in the murder of Terrance Duffy; 75

years for his involvement in the murder of Marie Duffy; and

20 years for robbery of the Duffys' bar, each term to be

served consecutively. Miller contends that the imposition of

consecutive terms in connection with a single "episode" of

criminal behavior violates the intent of S 46-18-401(4), MCA.

Miller does not contest the 10 year sentence he received for

felony assault by accountability because it was not a part of

this "episode." Such an interpretation is in stark contrast

to the plain language of the statute, however.

Although the compiler's comments suggest that

concurrent sentences are generally favored, S 46-18-401(4),

MCA, provides that "separate sentences for two or more

offenses shall run concurrently unless the court otherwise

orders." On its face, the statute clearly vests the District

Court with the discretion to impose consecutive terms

regardless of whether the criminal acts arose out of a single

episode of misconduct. It has long been recognized that when

interpreting a statute,

[Tlhe intention of the legislature must

first be determined from the plain

meaning of the words used, and if

interpretation of the statute can be so

determined, the courts may not go further

and apply any other means of

interpretation.

Murphy for L. C. v. State (Mont. 1987), 748 P.2d 907, 908, 44

St.Rep. 2030, 2032; State v. Hubbard (1982), 200 Mont. 106,

111, 649 P.2d 1331, 1333; Dunphy v. Anaconda Co. (1968), 151

Mont. 76, 438 P.2d 660. We find the District Court acted

within its discretion.

Miller also contends the District Court improperly

designated him a dangerous offender for purposes of parole

eligibility. Under Miller's reading of S 46-18-404(1), MCA,

a sentencing court must find that a defendant has been

convicted of a crime for which a sentence in excess of one

year could have been imposed and he must also represent a

substantial danger to society before the court can impose a

dangerous offender designation. This position is in effect,

that a defendant who has not committed a felony within the

preceding five years - is not a danger to society is

or

entitled to a nondangerous designation. Again, we find such

a construction at odds with the plain language the

legislature chose to employ.

The legislature, in enacting a law, is presumed to have

understood the ordinary and elementary rules of construction

of the English language. State ex rel. Palagi v. Regan

(1942), 113 Mont. 343, 126 P.2d 818. The statute in

question, S 46-18-404(1), MCA, provides:

(1) The sentencing court shall designate

an offender a nondangerous offender for

purposes of eligibility for parole under

part 2 of chapter 23 if:

(a) during the 5 years preceding the

commission of the offense for which the

offender is being sentenced the offender

was neither convicted of nor incarcerated

for an offense committed in this state or

any other jurisdiction for which a

sentence to a term of imprisonment in

excess of 1 year could have been imposed;

and

-

(b) the court has determined, based on

any presentence report and the evidence

presented at the trial and the sentencing

hearing, that the offender does not

represent a substantial danger to other

persons or society. (Emphasis added. )

The legislature's use of the conjunctive "and" clearly

indicates an intent to establish two mandatory prerequisites

to a nondangerous designation: (1) lack of a felony

conviction within the preceding five years; - (2) a finding

and

that the defendant does not present a substantial danger to

society. The court's duty is "simply to ascertain and

declare what is in terms or in substance contained [within a

statute] .' Section 1-2-101, MCA.

I We will not insert the

disjunctive "or" when the legislature chose to employ the

conjunctive "and." Such is not the function of this Court.

We hold the District Court correctly applied S 46-18-404,

MCA.

In Miller's tenth issue he contends he should be

eligible for parole in 171 years under 5 46-23-201 (1)(a),

MCA. We have no record before us regarding the determination

of parole eligibility for Miller. No argument concerning

this issue occurred at the lower court level. Issues raised

for the first time on appeal are untimely and will not be

addressed by this Court. Section 46-20-104(2), MCA; State v.

Probert (Mont. 1986), 719 P.2d 783, 43 St.Rep. 988; State v.

Van Haele (1983), 207 Mont. 162, 675 P.2d 79.

Motion for New Trial

Miller finally contends that the District Court erred

in denying his motion for a new trial based on written

statements submitted by Wentz to Miller's counsel in June of

1987 that exculpate Miller of the crimes. At the hearing on

the motion for a new trial on July 13, 1987, Wentz invoked

his Fifth Amendment rights and refused to testify. The court

disallowed the letters ruling they were hearsay evidence.

However, the District Court did exercise circumspection and

stated the following in its memorandum attached to the order

denying the motion:

The Court holds that the WENTZ notes are

hearsay and are not admissible under the

cited exceptions (Mont.R.Evid. 804). The

WENTZ statements clearly fail the test of

credibility and trustworthiness and are

blatantly self-serving. Since MILLER'S

conviction is on appeal, the Supreme

Court will have the opportunity to pass

upon the admissibilty of the WENTZ

hearsay.

Assuming, however, -- WENTZ hearsay

that the

was admissible. the Court still would

-

have denied the request for a new trial.

This Court is not going to void a jury

verdict, based on a nine-day trial,

involving some fifty witnesses and over

one hundred exhibits. One of the

witnesses was MILLER himself, and much of

his testimony was unbelievable, being

contradicted by the physical evidence and

common sense and his own reputation for

truth and veracity. (Emphasis added.)

The District Court went on to state that Wentz's

statements contained no credibility and that Wentz's "dog

wouldn't believe him." The court further pointed out that

the circumstances surrounding the drafting of the letters was

suspect because Wentz and Miller had opportunity to

communicate with each other in prison and Wentz's "insatiable

appetite for the limelight" could have been the motivating

reason for the letters. The court stated the jury did not

"believe" Wentz's story as evident by the verdict and to

allow for a new trial would be an abuse of discretion on the

court's part. Finally, the court noted that Miller's

veracity was questionable because of his violation of the

sentencing requirements that he not attempt to gain

financially from the events. This statement was in regard to

a letter Miller wrote to a national tabloid in which Miller

proposed to sell his story.

The court closed with the statement:

This Defendant's conduct, together with

his prison liaison with WENTZ for the new

trial strategy makes a mockery of his

characterization of himself as an

unwitting, innocent, misled and compelled

victim in the events of November 18,

1986.

The jury properly rejected that

characterization when it found him guilty

of assault, robbery and a participant in

a double homicide. It would be the

epitome of judicial arrogance to disturb

that verdict on the "new evidence"

offered, even if that evidence were

admissible, which it is not.

Miller's claim of error is based on two propositions.

First, that the District Court erred in disallowing the

letters because the Rules of Evidence do not apply in a

hearing on a motion for a new trial because it is a summary

proceeding. Secondly, Miller argues the guidelines for a new

trial, set out in State v. Greeno (1959), 135 Mont. 580, 342

P.2d 1052, were not considered by the court.

Initially, we note exclusion of the two letters by the

District Court on the grounds of hearsay was error. However,

it was not error on the grounds asserted by Miller. Where a

witness pleads the Fifth Amendment and refuses to testify, he

is considered unavailable. Rule 804(a) (I), M.R.Evid. This

rule is identical to the Federal Rules of Evidence

counterpart. The witness unavailable exception to the

hearsay rule should have been applied by the District Court.

See, U.S. v. Thomas (5th Cir. 1978), 571 F.2d 285, 288. A

similar rule has also been applied by this Court. See,

Sarsfield v. Sarsfield (1983), 206 Mont. 397, 407-408, 671

P.2d 595, 601.

Nonetheless, we find this to be harmless error in light

of the court's explanation that a new trial would not be

granted even if the material was not hearsay. Technical

errors or defects in rulings on evidence in criminal

prosecutions are not grounds for reversal, and in order to

allow reversal, the ruling must affect substantial rights.

Rule 103, M.R.Evid.; State v. Daniels (Mont. 1984), 682 P.2d

173, 41 St.Rep. 880; State v. Coleman (1978), 177 Mont. 1,

579 P.2d 732, appeal after remand, 185 Mont. 299, 605 P.2d

1000, cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d

1177. Further, Miller did not specifically object to the

denial of the letters as an exception to hearsay because the

witness was unavailable so the District Court was unable to

consider this technical defect.

As to Miller's second claim that Greeno, supra, was not

properly considered we note that S 46-16-702, MCA, provides

that the District Court may grant a new trial "if required in

the interest of justice." Miller's motion was based on "new

evidence" sent to Miller's counsel and properly presented to

the District Court. The new evidence presented by Miller was

not available at the time of the original trial and therefore

no opportunity existed for its presentation.

Where the District Court is faced with a determination

of the appropriateness of a new trial based on newly

discovered evidence, the following requisites must be met:

(1) .. . the evidence must have come to

the knowledge of the applicant since the

trial;

(2) that it was not through a want of

diligence that it was not discovered

earlier;

(3) - -it is so material - -it would

that - that

robably produce a different result upon

znother trial; (Fmphasis added.)

State v. Pease (Mont. 1987), 740 P.2d 659, 665, 44 St.Rep.

1203, 1210; citing Greeno, 342 P.2d at 1055.

The material presented meets the first two enunciated

tests. However, from a review of the evidence presented in

the initial trial, the lack of veracity of both Miller and

Wentz, and the District Court's ruling that even if

presented, he would not grant a new trial, we find that the

District Court did not abuse its discretion in denying the

new trial.

The District Court considered Wentz an unbelievable

witness. The jury's verdict indicates they also did not

believe Wentz. In State v. Cannon (Mont. 1984), 687 P.2d

705, 712, 41 St.Rep. 1659, 1667, we affirmed the court's

denial of a new trial based on new evidence because the

evidence presented "an additional inconsistency for

consideration by the jury."

This is a similar situation. Is the jury to believe

Wentz's statements to police officers upon arrest? Is the

jury to believe Wentz's statements at the original trial? Is

the jury to now believe Wentz's statements in the letters

drafted after his introduction to prison society where he had

opportunity to converse with Miller? The inconsistency is

apparent and the submission of these letters cannot be said

to be so material as to change the outcome of the jury's

verdict in light of Wentz's lack of veracity.

Upon review of the evidence, the record, and the

three-factor test enunciated above, although not specifically

of

referred to by the District Court in name but applied in

practice, we conclude the District Court did not abuse its

discretion in denying the motion for a new trial.

The jury verdict and judg7;

sentence are affirmed.

-

P

Justic

We concur: -(

I

.cZ.G\m r a c c P

The Honorable C. B. McNeil,

District Judge, sitting for

Mr. Justice John C. Sheehy

~ist2ic-kJudge, sitting for

Mr. Justice William E. Hunt