Petition — Hart v. Montana

Office-Supreme Court. U.S.

FILED

80-1988

MAY 28 1981

ALEXANDER L. STEVAS,

CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

SHIRL BUSBY HART,

Petitioner,

vs.

STATE OF MONTANA,

Respondent.

ON WRIT OF CERTIORARI

TO THE MONTANA SUPREME COURT

PETITION

WILLIAM A. ROSSBACH

320 North Orange Street

Missoula, Montana 59801

(406) 543-5156

Attorney for Petitioner

QUESTION PRESENTED

Whether a criminal defendant's absence

during the exercise of peremptory challenges

of veniremen, which resulted in a business

associate of the prosecuting attorney sitting

on the jury and becoming Foreman, combined

with multiple Court errors and prosecutorial

misconduct to deprive the Petitioner of her

fundamental rights to due process and a

fair trial.

TABLE OF CONTENTS

PAGE

Question Presented

Opinions Below. ...s«+s+«eeeeecee &

Jurisdiction, * . . * . . * . * . * . 2

Constitutional and Statutory

Provisions. . « «c«ececeeeee e

Statement of the Case ......2e-.

Raising the Federal Question. ....

Argument for Granting the Writ. ...

I.

II.

on f. KN

Because the Petitioner

was Absent during the

Exercise of Peremptory

Challenges and a Business

Associate of the Prosecutor

was left on the Panel and

eventually became Foreman,

there was no way she would

ever be able to have a fair

ly!) Pe ae ae ae a a oe ee ee

Not only was the jury

stacked against the Petitioner

from the beginning, but Court

Error and Prosecutorial Mid-

conduct thoroughly infected the

Conviction . . «esses 2

CONCLUS ION . 7 . o ° ° . o . 7. . . . 1 6

ii.

page

APPENDIX:

Opinion of the Supreme Court

Of Montana. . « « © «© © © © «© « « Awl

Petition for Rehearing .... . -A-32

Order Denying Rehearing. .... .A-39

Excerpts from Trial Transcript . .A-40

TABLE OF AUTHORITIES

Cases:

Berger v. U.S., 295 U.S. 78 (1935) . 12

County Court v. Allen, 99 S.Ct.

BOs (ASTO) se « ew eo 6 8 et we oe eo 68S

Estelle v. Williams, 425 U.S. 501

(2) Pee oe ee ae ee ee 11

Faretta v. California, 422 U.S.

SOG C2075) « 6 «0 5 0h 0 ee 6 8 9

Garner v. Louisiana, 368 U.S. 157

CAeear 4 8 wa 8 s. © - ens 4) e's «| SS

Griffin v. California, 380 U.S.

SOS C2005) oe ce se a Wie ew ein ec

Idaho v. Carver, 94 Id. 677,

406 2.26 676 (i973)..° ss 2s oe * 9

Lyons v. Oklahoma, 322 U.S. 596

(ARE 6 abo vb ee ee ea

Mesarosh v. U.S., 352 U.S. 78 (1956) 12

In re Murchison, 349 U.S. 133 (1955) 12

Snyder v. Massachusetts, 291 U.S. 97

tt Pr ae oe ee ae eee ee 9

=2=

OPINIONS BELOW

The rulings of the state district court

are not reported. The opinion of the

Montana Supreme Court is reported at 625

P.2d 1 (Mont. 1981), and appears in

the Appendix hereto. |

JURISDICTION

The opinion below of the Montana

Supreme Court was entered on January 30,

1981. A timely petition for rehearing was

denied on March 26, 1981. This petition

for certiorari is filed within sixty (60)

days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C. 81257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Fourteenth Amendment, United States

Constitution:

- « »-No State shall make or enforce

any law which shall abridge the privi-

leges and immunities of citizens of the

United States; nor shall any State

deprive any person of life, liberty

or property without due process of

law.

-3-

United States Code, Title 28:

681257: Final judgments or decrees

rendered by the highest court of a state

in which a decision could be had, may be

reviewed by the Supreme Court, as follows:

(3) . . . By writ of certiorari, where

the validity of a treaty or statute of the

United States is drawn in question or where

the validity of a state statute is drawn in

question on the ground of its being repug-

nant to the Constitution, treaties or laws

of the United States, or where any title,

right, privilege or immunity is specially

set up or claimed under the Constitution,

treaties or statutes of, or commission held

or authority exercised under, the United

States.

_

STATEMENT OF THE CASE

Petitioner was convicted by a jury of the

offense of theft under the terms of the

Montana Criminal Accountability Statute.

Montana Codes Annotated, Section 45-2-301.

At trial, she was identified as one of three

women who entered a jewelry store in Miles

City, Montana, on May 24, 1979, to look at

certain items in the store. Although the

woman later identified as the petitioner

appeared in the store at about the same time

as the other women, it was uncertain whether

the three women were together. The store

clerk assisted the two other women in looking

at certain rings in one part of the store

while the third woman was in another part

of the store looking at clocks.

At some point in time, the two women

beside petitioner apparently left the

store. At about the same time, the woman

identified as petitioner asked if one of

the clocks had a wind-up key and box to

pack it in. The storekeeper then went into

the basement of the store to look for a box.

While she was there she heard running noises

upstairs, so she hurried back up to find the

third, lone woman, standing in the store,

=Se

smoking a cigarette. The storekeeper did not

notice anything wrong and told the woman

that she could not find the box for the

clock. The woman said she would come

back later and left the store. After

the woman left, the store clerk dis-

covered certain missing rings.

At trial the direct evidence against the

petitioner was extremely slight:

(1) She was identified as being in the

store at the time; and

(2) She was identified as having been

seen at a private residence during that

period with two other women named Gunsch

and Harris.

Nonetheless, the petitioner was convicted

by a jury of theft under the terms of the

criminal accountability statute, even though

there was no other direct evidence of her

criminal purpose to aid and abet the commis-

sion of the theft. We submit that the only

reason the conviction was returned was that

a business associate of the prosecutor became

foreman of the jury and the multiple errors

of the court below,combined with prosecutorial

misconduct thoroughly infected the fairness

of the trial.

=6<

During voir dire, information was elicited

from one venireman of his business relations

with the prosecutor. Appendix at A-40.

Unfortunately, when the peremptory challenges

were made, the petitioner was not present.

See Appendix at A-27. That venireman eventual-

ly became jury foreman.

At trial, the court permitted prosecution

to prove its case in the following manner:

(a) The court took judicial notice of

the pleadings in two separate criminal cases

to establish that the persons named in those

pleadings, Mary Gunsch and Donna Harris,

were in fact the principals who had been

in the jewelry store and committed the

offense for which the petitioner was con-

victed.

(b) The court allowed the prosecutor

to deliberately adduce highly questionable

testimony from a witness which was high-

ly prejudicial to the petitioner, even

though the evidence was immaterial, un-

necessary, and cumulative.

(c) The court allowed the prosecutor

to comment on and draw attention to the

petitioner's exercise of her right to

remain silent during her trial.

(d) The court itself called a witness

oJ=

to impeach the questionable witness of

the prosecution on a collateral matter.

The jury convicted the petitioner and

the petitioner appealed to the Montana

Supreme Court, arguing, inter alia

1. That the willful misconduct of

the prosecutor combined with lower court

errors to fatally infect the crial.

2. That petitioner's absence during

a critical stage of her trial was

constitutionally unfair.

On January 30, 1981, the Montana

Supreme Court affirmed the conviction.

Appendix at A-l . Petitioner filed

a Petition for Rehearing. Appendix at

A-33. On March 26, 1981, the Petition

for Rehearing was denied. Appendix at

A-39. This Petition is therefore filed

within sixty (60) days of entry of that

Order.

RAISING THE FEDERAL QUESTION

Petitioner raised the violation of

her federal constitutional rights to due

process and confrontation under the terms

of the United States Constitution in her

appeal to the Montana Supreme Court. The

=8=

Montana Supreme Court rejected these arguments

in its Opinion. Appendix at A-l1 . Petitioner

in her Petition for Rehearing again brought

these issues to the court, but they were

again rejected. Appendix at A-39.

ARGUMENT FOR GRANTING THE WRIT

I. BECAUSE THE PETITIONER WAS ABSENT DURING

THE EXERCISE OF PEREMPTORY CHALLENGES AND

A BUSINESS ASSOCIATE OF THE PROSECUTOR

WAS LEFT ON THE PANEL AND EVENTUALLY BE-

CAME FOREMAN OF THE JURY, THERE WAS NO

WAY SHE WOULD EVER BE ABLE TO HAVE A

FAIR TRIAL.

During voir dire, one venireman responded

that he was a business associate of the

prosecuting attorney. Appendix at A-40. But,

unfortunately, the petitioner was not

present during the peremptory challenges

and that venireman was left on the panel

and became foreman.

Petitioner raised her absence to the

Montana Supreme Court, but the court mis-

takenly rejected the argument. The court

simply misunderstood the importance of

her presencer to assist her attorney in

selecting who was to sit in judgment upon

her. The court only looked to the question

of presence during the voir dire questioning,

-9=

but failed to recognize the constitutional

importance of the petitioner's presence at

every critical stage.

It is well-settled that the Constitution

of the United States guarantees to a defendant

in a criminal trial the right to be present

"at all stages of the proceedings where

fundamental fairness might be thwarted by his

absence." Snyder v. Massachusetts, 291 U.S.

97, 106 (1934). This is true whether the

trial is in state or federal court. See

Faretta v. California, 422 U.S. 806 (1975).

The necessity of the defendant's presence

is critically important where the defendant

may be of assistance to his counsel in con-

ducting his defense. See generally Faretta,

supra. We submit that the exercise of per-

emptory challenges is one of the clearest

instances where the defendant should be of

assistance to his counsel. After all, it is

the jurors who will make the ultimate finding

that will affect the defendant's rights to

liberty.

In Idaho v. Carver,94 Id. 677,-496 P.2d

676 (1972), the Idaho Supreme Court out-

lined many of the policy reasons for re-

quiring the defendant's presence during

voir dire challenges. The court found that

-10-

"the defendant may wish to challenge a parti-

cular prospective juror for any one of several

valid reasons, one of which may be a nega-

tive visceral reaction." The court pointed

out that the defendant should have "first

hand knowledge of the actions taken which

lead to the eventual outcome of the trial

and particularly that he knows how the

jurors who decide the facts were selected."

Id. at 679. The court held that other-

wise, "an accused will automatically be

suspicious." Id.

In the instant case, counsel apparently

exercised their peremptory challenges

out of the presence of the defendant.

The eventual result was that a person

with a prior business relationship with

the prosecuting attorney became jury

foreman. Under such circumstances, the

petitioner's right to a fair and impartial

trial, was clearly violated.

II. NOT ONLY WAS THE JURY STACKED AGAINST

THE PETITIONER FROM THE BEGINNING, BUT

COURT ERROR AND PROSECUTORIAL MISCON-

DUCT THOROUGHLY INFECTED THE CONVICTION.

There is no more fundamental principle in

our system of criminal justice as the right

#@i1l<

of every criminal defendant to a fair

trial. The United States Supreme Court

has repeatedly emphasized that the

"right to a fair trial is a fundamental

liberty secured by the Fourteenth

Amendment." Estelle v. Williams, 425

U.S. 501, 503 (1976). The Supreme

Court has made it clear that the

"Fourteenth Amendment is a protection

against criminal trials in state courts

conducted in such a manner as amounts

to a disregard of ‘that fundamental

fairness essential to the very concept

of justice,’ and in a way that ‘necessarily

prevents a fair trial.'" Lyons v.

Oklahoma, 322 U.S. 596, 605 (1944).

The courts "must be alert to the

factors that may undermine the fairness

of the fact-finding process," and

"carefully guard against dilution of

the principle that guilt is to be

established by probative evidence and

beyond a reasonable doubt." Estelle,

425 U.S. at 503. Conduct of a criminal

trial must be subject to "close scrutiny"

Id. at 504, because "our system of law

has always endeavored to prevent even

the probability of unfairness." In ce

he Par E er OU, Ow Ff

Se a a , on aren a

@130

Murchison, 349 U.S. 133, 136 (1955). We would

direct this Court's attention to the follow-

ing instances of error in the trial below.

First, the prosecution deliberately intro-

duced highly questionable testimony of a

witness which had no probative value, but

which was possibly perjurious and highly

prejudicial because of the witness’

demeanor. Convictions based upon such

prejudicial testimony cannot stand. As

the Supreme Court has noted, such testi-

mony “tainted the trial" and "poisoned

the water in the reservoir and the

reservoir cannot be cleansed without

first draining it of all impurity."

Mesarosh v. United States, 352 U.S. l,

14 (1956).

As a result of this questionable

testimony, the jurors were induced to

infer that the witness was hiding knowl-

edge to protect petitioner. This

deliberate use of such testimony by the

prosecutor was improper because the

prosecutor is a representative of the

sovereign and it is his "duty to refrain

from improper methods calculated to pro-

duct a wrongful conviction." Berger v.

United States, 295 U.S. 78, 88 (1935).

-13-

Second, the court compounded this impropriety

by calling its own witness to impeach the

questionable witness on a collateral and

immaterial matter.

Third, the prosecution during closing

hammered on the fact of the questionable

witness apparently hiding something to pro-

tect the defendant and then launched into

a direct reference to the silent petitioner's

knowledge of the facts of the case. The

prosecutor argued to the jury: "The

dates, I ask you to reject those dates.

You know what the date was. June knows

what the date was and the defendant

knows what the date was." Appendix at A-40.

By this reference, the prosecutor

brought to the jury's attention the

fact that the petitioner knew the dates

but did not take the stand to testify as to

them. He implied guilty knowledge on

the part of the defendant hiding behind

the shield of the Fifth Amendment.

This comment on the exercise of Fifth

Amendment rights is absolutely barred.

See Griffin v. California, 380 U.S. 609,

614 (1965). In Griffin, as in the

instant case, the prosecutor's reference

was to the knowledge of the silent

-14<

defendant.

Finally, the lower court was forced

to supply certain critical links in the

prosecutor's case by judicial notice.

Although there was testimony that

petitioner had been seen with a woman

named Gunsch and a woman named Harris

at the time of the theft, there was no

evidence at the trial. to link petitioner

to the principals who actually committed

the theft. To supply that crucial

linkage, the court simply took judi-

cial notice that Mary Gunsch and

Donna Harris had been charged in

separate criminal pleadings with the

offense of theft of the jewelry store.

, Obviously, the prosecutor's pleadings

are nothing more than hearsay. They

are allegations about what the state

éxpects to prove to convict the persons

accused. They are nothing more than

the belief of the prosecutor who

filed them. In this case, the court's

taking judicial notice of the state's

pleadings effectively established as

true that petitioner had prior associa-

tion with the criminals who in fact |

committed the jewelry theft. The truth

et ee Reel (LE ORR oe PM NPLe * PL DO lees vee Oooo

-15-

of the state's allegations against the two

other women, however, cannot be established

until the state introduces evidentiary

proof. By taking judicial notice of the

pleadings as facts, the court in effect

validated inadmissible hearsay statements

made by the prosecuting attorney. In-

fringement on the petitioner's constitu-

tional rights which results is overwhelm-

ing. Petitioner has thus been convicted

on the facts introduced by a "witness"

she was never able to cross-examine,

in violation of the confrontation

clause and the due process clause of

the Constitution. See County Court

v. Allen, 99 S.Ct. 2213, 2224 (1979).

Abuse of judicial notice infringes

upon the accused's right to due pro-

cess; it allows "the prosecution to

do through argument .. . what it is

required by due process to do at

trial, and would be ‘to turn the

doctrine into a pretext for dis-

pensing with the trial.'" Garner

v. Louisiana, 368 U.S. 157, 173-74

(1961).

We would submit that the petitioner's

-16-

conviction was improperly based upon guilt

by an alleged association with only the

alleged principals of the theft. On

this slim evidence, the only explana-

tion for the conviction must be the

prejudicial overzealousness of the

prosecutor, combined with the errors

of the court below.

CONCLUSION

For the foregoing reasons, the

Petition for a Writ of Certiorari

should be granted.

DATED this 22nd day of May, 1981.

Respectfully submitted,

WILLIAM A. ROSSBACH

320 North Orange St.

Missoula, Montana

59801

Attorney for Petitioner

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OPINION OF THE SUPREME COURT

OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff and Respondent,

vs.

SHIRLEY BUSBY HART a/k/a No. 80-101

SHIRLEY ANNE CHITTENDEN,

OPINION

Defendant and Appellant. -

ee ee ee ee ee et eet et ee ee

Mr. Justice John Conway Harrison

delivered the Opinion of the Court.

Defendant appeals a Custer County District

Court conviction, by a jury, of theft by

accountability, for which she received a

five-year sentence and was ordered to make

partial restitution.

Three women entered Mann Credit Jewelers

in Miles City, Montana, on the afternoon of.

May 24, 1979. The only employee in the

store at the time was a clerk, June

Carranza. Carranza testified that the

three women came into the store at about

A-2

the same time but then separated. Two of

the women, who associated openly and were

clearly together, asked the clerk to show

them some rings in a display cabinet. The

third woman, identified by Carranza as

defendant Shirley Hart, browsed throughout

the store. She asked to look at some wine-

glasses, which Carranza handed to her.

(Fingerprints on the wineglasses were

later identified in court as those of

Shirley Chittenden, also known as Shirley

Hart.) From the wineglasses, defendant

went to the cuckoo clocks and asked the

clerk a series of questions about then,

discovering that the key and a box for the

clock she was interested in were downstairs.

Hart told the clerk that she would need

the box because she wanted to mail it.

Carranza testified that at that point

defendant engaged in a short, inaudible

conversation with one of the two women,

although from the time the three women

entered the store, Hart had shown no sign

of association with the other two women.

After this brief conversation, no further

contact was made between Hart and the

other women. As Carranza and defendant

A-3

discussed the clock, the other women

left the store and looked through the store

window at the items displayed.

Carranza then went down into the basement

to search for the key to the clock and a box

in which to mail it. Once downstairs,

Carranza heard the sounds of running feet

from the store above and the sound of what

seemed to be the bumping of glass. She

abandoned her search for the key and box

and ran back upstairs to find defendant

waiting at the top of the stairs. Testi-

mony given by the owner of the store indi-

cated that the area in which Hart was

standing was the only area in the entire

store where the stairs to the basement

could be watched. Hart was on the main

floor of the store during the disturbance

which brought June Carranza rushing back

upstairs, but made no mention to her of

any irregularities.

Carranza informed defendant that she

could not find the box for the clock but

that her boss would be back at 3:30 p.m.

and he could certainly help her. Hart

told the clerk that she had some shopping

to do at Penney's and that she would

return. When defendant left the store it

A-4

was minutes before 3:20. The theft was

reported at 3:25. Carranza had informed

Hart that her employer would be back with-

in ten minutes, yet defendant chose to

leave and not return. The clerk further

testified that defendant hurried away

after leaving the store.

Carranza then went to clean the dis-

play cases and discovered that two display —

trays of rings were missing from the front

window where the two women had just been

examining the rings. When police arrived,

she gave a description of the three women

and described what had transpired. Latent

fingerprints were taken from the display

case and from the wineglasses. The prints

on the display case were those of Donna

Standley (a/k/a Donna Harris) and Mary

Gunsch; those on the wineglasses were the

fingerprints of Shirley Chittenden (a/k/a

Shirley Hart), the defendant.

Two of the State's witnesses testified

to defendant's either prior or subsequent

association with the other two women seen

in Mann Credit Jewelers on May 24, 1979.

The exact date of the meeting between these

three women was not specifically estab-

lished by any witness, but the State's

witnesses placed all three in the home

A-5

of Dixie Strid on or near the date of

the theft.

Shirley Hart presents four issues for

our review:

1. Did she receive a fair trial?

2. Did the prosecution adduce suf-

ficient evidence to prove the elements

of the charge, thereby justifying the

District Court's decision to deny her

motion for a directed verdict and the

submission of the case to the jury?

3. Were her constitutional rights

violated by her absence during the

peremptory challenge stage of jury

selection?

4. Was the jury properly

instructed?

FAIR TRIAL

Hart asserts that she did not receive

a fair trial and that her due process

rights were violated by the conduct of

the prosecutor and the errors of the

trial court.

Defendant first argues that the

prosecution deliberately introduced

the testimony of Maryona Johnson,

knowing that the testimony was likely

A-6

to be perjured. To show the associ-

ation of defendant and the two other women,

the State called Johnson to testify that

in late May or June she saw Shirley Hart

at Dixie Strid's house with two women

whom she did not know and to whom she

was not introduced. Johnson was hostile

and uncooperative throughout her testi-

mony. She was evasive as to the date of

the encounter at Strid's house.

Hart contends that Johnson's testimony

was more prejudicial than probative and

served to deny her right to a fair trial.

According to Hart, the manner in which

Johnson's testimony was delivered was so

confusing and evasive that it gave the

appearance that she was attempting to

protect someone. Defendant submits that

the prosecutor realized the prejudicial

impact of the testimony, insofar as it

implied that Johnson was trying to pro-

tect the defendant, and willfully con-

tinued his examination to strengthen that

impression.

This Court recognizes that due process

requires that trials be conducted with

“dignity, order, and decorum." Illinois

v. Allen (1970), 397 U.S. 337, 343, 90

A-7

S. Ct. 1057, 23 L.Ed.2d 353. The prosecutor

has a responsibility to see that. the

prosecution of a criminal case is fair and

just; he must be interested in justice,

not just convictions. Berger v. United

States (1935), 295 U.S. 78, 55 S.Ct. 629,

79 L.Ed. 1314. See also the Code of

Professional Responsibility, EC 7-13.

Misconduct by the prosecutor may form

the basis of a new trial where the prosecu-

tor's actions have deprived a defendant of

a fair and impartial trial. State v. Bain

(1978), 176 Mont. 23, 575 P.2d 919.

During his opening statement, the pros-

ecutor told the jury that he would prove

that defendant was in Miles City on or

near the date of the theft. He said he

would establish that fact by the testimony

of two of her friends, one of which was

Maryona Johnson. At the outset Johnson was

evasive and uncooperative. She admitted

that she had seen defendant in the company

of two women at Strid's house in May or

June of 1979. Defendant objected to the

prosecutor's attempt to elicit a more cogent

testimony on the grounds that the prose-

cutor was attempting to impeach his own

witness.

A-8

The trial judge properly overruled the

objection since under the rules of evi-

dence an attorney can impeach any witness.

Rule 607, Mont.R.Evid. A party does not

vouch for his or her witnesses, except

for expert and character witnesses, because

a party's witnesses are not chosen but are

those persons who happen to be present and

see the events which give rise to the

case. Commission Comment to Rule 607

Mont.R.Evid. Under the facts as they

exist before us, we can dete.mine no

prosecutorial misconduct or prejudicial

error to defendant with respect to

Johnson's testimony.

Defendant claims secondly that tie

prosecutor deliberately introduced testi-

mony to impeach a defense witness on

matters which were known to him to be

improper, imcompetent, and collateral.

In the trial court, Hart originally gave

notice that she planned to call certain

alibi witnesses. Hart's counsel with-

drew that defense and moved the court

for an order limiting the prosecutor from

inquiring into any matters concerning

that defense. The court ruled that the

prosecutor would not be allowed to exceed

A-9

the scope of direct examination. Defense

called Sandy Karst to testify about

defendant's physical condition during

the spring of 1979. On cross-

examination the prosecutor asked Karst

whether she had previously made any state-

ment that she was with defendant at

defendant's home in Billings on May 24,

1979. Over objection, Karst replied that

she had. Defendant deems this an improper

attempt to impeach a witness and viola-

tive of the court's order to stay within

the scope of direct examination.

The State counters that defendant made

her physical condition at the time of the

theft an issue. On cross-examination,

the prosecution attempted to determine

if the witness's testimony related to

defendant's condition on the day of the

theft. To this extent the cross-exami-

nation was properly within the bounds

of the court order. Since our decision

in Kipp v. Silverman (1901), 25 Mont.

296, 64 P. 884, we have consistently

determined that cross-examination should

be allowed an extended range rather than

a limited one. Further, the latitudes of

cross-examination are determined by the

A-10

trial court. It is not within the authority

of this Court to disturb the District Court's

ruling unless a clear abuse of discretion

is shown. State v. Gallaher (1978), 177

Mont. 150, 580 P.2d 930, 35 St.Rep. 848.

See also State v. Babella (1978), 177 ,

Mont. 275, 581 P.2d 838, 35 St.Rep. 985.

We respect the District Court's judgment

in the conduct of the trial and do not

find that its discretionary powers were

abused.

Defendant further argues on appeal that

the court erred in its decision to call

Bob Lucas, president of the First Security

Bank in Miles City, to the stand to clarify

the testimony of Maryona Johnson. Hart

claims that Lucas' testimony was completely

collateral and wrongfully prejudiced her

case. The court, however, felt compelled

to call Lucas to verify Johnson's testi-

mony once her credibility had been called

into question, especially in view of the

fact that Johnson was a major witness for

the State on the issue of association.

Rule 614(a), Mont.R.Evid., allows the

court to call witnesses and entitles all

parties to examine those witnesses. The

reason for this prerogative is the usual

A-1l1

tendency to associate an undesirable

witness with one party or the other.

This problem is met by having the bench

call the witness to obtain his or her

knowledge of the relevant facts. Commis-

sion Comment to Rule 614(a), Mont. R.

Evid. Because the authority to call

witnesses is expressly granted the

District Court by the rules of evidence,

and that authority is largely discre-

tionary, we will not disturb the court's

decision without a showing of abused

discretion or manifest prejudice, neither

of which are present here. Accord, United

States v. Leslie (5th Cir. 1976), 542

F.2d 285 (applying Rule 614(a), Fed.R.

Evid., which is identical to the Montana

rule).

Defendant Hart concludes her appeal on

the fair trial issue by directing our at-

tention to the prosecutor's closing state-

ment to the jury. In that statement, Hart

argues, the prosecutor improperly commented

on her refusal to testify during trial.

The prosecutor argued to the jury: "The

dates. I ask you to reject those dates.

You know what the date was. June

[Carranza] knows what the date was and

A-12

the defendant knows what the date was."

Defendant asks this Court to conclude

that this statement drew the fact of her

refusal to testify before the jury,

thereby creating in the minds of the jury

that she was not testifying because of

her guilt. We do not find her argument

persuasive.

Read in the context of the prosecutor's

entire closing statement, we do not believe

that the reference to the dates is properly

characterized as a comment on defendant's

failure to testify on her own behalf. It

merely stressed that the fact of the theft

and the fact of defendant's presence in

the store on the day of the theft had

been proven. It is certainly improper

for a prosecutor to comment on a defen-

dant's refusal to take the stand (Griffin

v. California (1965), 380 U.S. 609, 85

S.Ct. 1229, 14 L.Ed.2d 106), but this

reference to defendant's knowledge is

simply too remote an inference to be

prejudicial error. Moreover, the District

Court instructed the jury on defendant's

constitutionally protected right to remain

Silent. Any possible error or taint caused

by the prosecutor's comment was clearly made

A-13

harmless by the proper instruction of the

jury.

SUFFICIENCY OF THE EVIDENCE

Defendant's second contention is that

the evidence adduced was insufficient to

sustain her conviction of theft by ac-

countability and that the District Court

committed reversible error in submitting

the case to the jury. In support of this

point she argues (1) that the State failed

to prove that she intended to promote or

facilitate the theft; (2) that the State's

proof of her association with the two

principals was flawed and insufficient to

prove intent; (3) that the State failed to

prove that the two women seen at Dixie

Strid's house were indeed the principals

in the crime; (4) that the State failed

to prove that Hart's fingerprints were

the same as those found at the scene of

the theft; and (5) that there is not suf-

ficient evidence generally to uphold

defendant's conviction.

Every defendant in a criminal action is

innocent until proven guilty, and it is the

burden of the State to prove the defendant's

guilt beyond a reasonable doubt. State v.

A-14

Proctor (1969), 153 Mont. 90, 454 P.2d

616. But, it is the jury's purpose and

duty to decide if the State has proved

its case against the defendant by render-

ing a verdict on the facts presented.

State v. Espelin (1937), 106 Mont. 231,

76 P.2d 629. This Court on appeal is

guided by the sound and well-reasoned rule

that the determination of disputed ques-

tions of fact and the credibility of wit-

nesses is the sole province of the jury.

State v. Bubnash (1963), 142 Mont. 377,

382 P.2d 830; State v. Messerly (1952),

126 Mont. 62, 244 P.2d 1054; State v.

Robinson (1939), 109 Mont. 322, 96 P.2da

265; State v. Espelin, supra.

With respect to the issue of intent,

we note that the jury was instructed on

every element of the crime and note with

particularity the court's Instruction No.

14: "An act is done 'knowingly' if done

voluntarily and intentionally, and not

because of mistake or accident or other

innocent reason..." Reviewing the

evidence most strongly in favor of the

State, we conclude that there was suf-

ficient evidence for the jury to find

that Shirley Hart intentionally committed

A-15

the crime of theft by accountability.

Both a fingerprint identification and

an eyewitness identification placed Hart

in Mann Credit Jewelers. June Carranza

testified that she was in the store at

the same time as the women later arrested

as principals in the theft. The evidence |

also shows that Hart did not associate

with the other women, except for the brief

and inaudible exchange a few minutes before

the theft. This lack of association is

inconsistent with the testimony of Maryona

Johnson and Dixie Strid that the three

women were all together on or near the

date of the theft.

The State proved that defendant sent

the clerk into the basement for a key and

a box for a clock that defendant intended

to mail, thereby creating a situation

where no one was left on the main floor

of the store. The evidence showed that

defendant positioned herself in the only

area in the entire store where the stairs

to the basement could be watched; the only

logical area in which a "lookout" would

stand to make sure that the thieves would

have notice of the clerk's return from the

basement. The evidence showed that defendant

A-16

was in the store during the theft. It

further showed that defendant said nothing

to the clerk of anything unusual happening

even though the clerk, while in the base-

ment, heard the sounds of running feet

and the bumping of glass.

Carranza further testified that, even

in view of the fact that defendant appeared

so interested in the purchase of the clock

that she wanted a box for it, she left with-

out returning. Moreover, although Carranza's

employer would be returning in a matter of

minutes at which time the sale of the clock

could be made, complete with box and key,

defendant hurried away from the store and

never returned. Hart's actions were not

consistent with those of a genuinely inter-

ested shopper. They were consistent with

the actions of a "lookout," whose part in

the theft was to get the lone clerk off the

floor of the store and then watch the stairs

while her partners in the crime committed

the actual theft.

We are not required to determine Hart's

guilt from the above facts. When sufficiency

of the evidence is assailed, it is the province

of this Court to view evidence which tends

to support the verdict and not second-guess

the jury or concern ourselves with what we

A-17

may have done as jurors. State v. McKenzie

(1976), 171 Mont. 278, 557 P.2d 1023,

vacated 433 U.S. 905, 97 S.Ct. 2968, 53

L.Ed.2d 1089, on remand 581 P.2d 1205,

vacated 99 S.Ct. 3094, cert. denied 99

S.Ct. 3103. See also Miles v. Common-

wealth (1962), 205 Va 462, 138 S.E.2d 22.

The jury was fully instructed on its

duty and responsibility in evaluating the

evidence of intent. It is reasonable to

assume that there existed material questions

of fact regarding defendant's intent to

aid in the theft which, in our system of

criminal justice, are decided by twelve

jurors. Finally, the decision to submit

a case to the jury and deny a motion for

directed verdict lies within the ambit of

the District Court's broad discretionary

powers and should not be disturbed by this

Court on appeal in the absence of a clear

abuse of discretion. State v. Armstrong

(1967), 149 Mont. 470, 428 P.2d 611. The

District Court did not abuse its discretion

in this case.

Hart argues that the State introduced

no evidence at trial that the women seen

at Dixie Strid's house were Gunsch and

Harris, the principals of the crime. The

A-18

connective link, Hart argues, was the taking

of judicial notice by the court of the State's

Pleadings against the two women. This, sub-

mits defendant, is a failure to prove an

element of the crime, i.e. association, and

is reversible error. We disagree.

First of all, from the testimony of Dixie

Strid:

"Q. Now these four women, referring

to Shirley Hart, Maryona Johnson, and

Mary Gunsch and Donna Harris, how did

they arrive at your house? A. Donna

and Mary went to my house with me from

my bar.

"Q. Do you know how Shirley Hart got

there? A. She drove my car or Ernest's

car.

"Q. Could you tell me who left first,

Shirley Hart or Maryona Johnson? A.

I don't remember for sure. We had several

drinks."

From this testimony and that of Maryona

Johnson, we can find ample evidence to show

that Shirley Hart and the two principals,

Harris and Gunsch, were indeed associates,

at some point near the date of the theft.

Hart's argument on appeal, however, assigns

error to the District Court's decision to

take judicial notice of the pleadings against

the two women, charging them with the actual

A-19

theft at the jewelry store on May 24, 1979.

In

essence this means that while the State

may have proven the association of the

three women, it did not prove that Harris

and Gunsch were the principal actors in the

theft.

by

The taking of judicial notice is governed

the provisions of Rule 201, Mont.R.Evid.:

"Judicial notice of facts.

"“(a) Scope of rule. This rule governs

judicial notice of all facts.

"(b) Kinds of facts. A fact to be

judicially noticed must be one not sub-

ject to reasonable dispute in that it

is either (1) generally known within

the territorial jurisdiction of the

trial court or (2) capable or accurate

and ready determination by resort to

sources whose accuracy cannot be reason-

ably questioned.

"(c) When discretionary. A court may

take judicial notice, whether requested

or not.

"(a@) When mandatory. A court shall take

judicial notice if requested by a party

and supplied with the necessary informa-

tion.

"(e) Opportunity to be heard. A party

is entitled upon timely request to an

opportunity to be heard as to the pro-

priety of taking’ judicial notice and the

tenor of the matter noticed. In the

A-20

absence of prior notification, the request

may be made after judicial notice has been

taken.

"(f) Time of taking notice. Judicial

notice may be taken at any stage of the

proceeding.

"(g) Instructing the jury. In a civil

action or proceeding, the court shall in-

struct the jury to accept as conclusive

any fact judicially noticed. In a criminal

case, the court shall instruct the jury

that it may, but is not required to, accept

as conclusive any fact judicially noticed."

We can find no error in the District Court's

decision to take judicial notice of the fact

of the pleadings against Harris and Gunsch,

especially in light of the court's instruc-

tion on judicial notice. We consider

initially just what was judicially noticed--

the charges against Harris and Gunsch. The

fact of the charges against these women was

not “subject to reasonable dispute" and,

moreover, the fact of the charges was

capable of “accurate and ready determination

by resort to sources whose accuracy cannot

be reasonably questioned"--namely, the

District Court files which contained the

original copies of the charges against ‘the

two principals. It is important to note

that we are discussing the fact of the charges

A-21

here and not their validity.

Even if the taking of judicial notice

in any way tainted the fairness of defendant's

trial, any taint wouid be eliminated by

the instruction given to the jury. The

District Court instructed the jury that it

was allowed to accept as conclusive any

fact judicially noticed but that it was not

required to do so. See Rule 201(g), Mont.

R.Evid. Having drawn the jury's attention

to the pleadings which had been judicially

noticed, the court made it clear that the

court's decision was not binding on the

jury and that they could disregard the fact

of the pleadings against Harris and Gunsch.

It was then the jury's prerogative to accept

or reject the judicially noticed facts as

evidence, and we will not disturb its

decision. State v. McKenzie, supra; State

v. Stoddard (1966), 147 Mont. 402, 412 P.2d

827.

As to Hart's assertion that there was

insufficient proof that the fingerprints

found at Mann Credit Jewelers were hers, we

find her argument more specious than real.

The gist of the claim is that the District

Court erred in taking judicial notice of

defendant's aliases, thereby explaining why

A-22

the name on the fingerprint card was "Shirley

Chittenden" while the fingerprints were

those of defendant, "Shirley Hart." The State

relied on the testimony of fingerprint expert,

Herbert Bruning. He testified that the finger-

prints removed from the glass in Mann Credit

Jewelers were those of Shirley Busby Hart

a/k/a Chittenden.

When defendant married, she changed only

her name, not her fingerprints. Referring

again to Rule 201, Mont.R.Evid., we can

determine that the fact of defendant's

other used names is not subject to reason-

able dispute in that they would be “capable

of accurate and ready determination by

resort to sources whose accuracy cannot

be reasonably questioned," i.e., her birth

certificate, marriage certificate, bap-

tismal records, etc. We recognize that

there are facts which, "from motives of

policy, the law requires a court to judici-

ally notice, or have knowledge of, but of

which, in reality, it is ignorant." Holtz

v. Babcock (1963), 143 Mont. 341, 390 P.2d

801. When facts are not subject to reason- -

able dispute, such as in this case, the

District Court saves time and money for all

parties by taking judicial notice of those

A-23

facts. See Commission Comment, Rule 201,

Mont. R.Evid.

Any merit. this argument may have is

further diminished when considered in the

light of June Carranza's eyewitness identi-

fication of defendant as the third woman in

the store. The fingerprints were taken

from the wineglasses Carranza had shown

defendant. When these two pieces of evi-

dence are considered together, we can see

very little merit to the claim that the

judge should not have taken judicial notice

of the fact of defendant's aliases, thereby

explaining the discrepancies between the

name on the fingerprint card and the current

name of defendant.

Finally defendant claims generally that

there was insufficient evidence to uphold

her conviction. After a review of the

evidence in favor of the verdict and a

review of applicable law, we find fully

sufficient evidence for the jury to decide

that defendant's actions on May. 24, 1979,

were inconsistent with a hypothesis of

innocence.

Mere presence at the scene of the theft,

or even failure to interfere with a theft

which someone is aware is taking place, is

insufficient to hold one accountable as a

A-24

principal to the crime. People v. Durham

(1969), 74 Cal.Rptr. 262, 449 P.2d 188.

Further, the actor need not take part in

the overt act of the theft, or the actual

taking, to be found guilty. People v.

Cole (1977), 50 I1l.App.3d 133, 7 I11.Dec.

848, 365 N.E.2d 133. Although mere presence

at the scene of the crime and the failure to

disapprove or oppose the crime do not make

a person liable, these factors may be con-

sidered by the jury, along with other cir-

cumstances which may indicate whether the

person in some way aided in the commission

of the crime. See People v. Nugara (1968),

39 I11.2d 482, 236 N.E.2d 693, cert. denied,

393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261;

People v. Crutcher (1979), 72 I11.App.3d

239, 28 Ill,Dec. 404, 390 N.E.2d 571.

Where the evidence discloses, as it does

in this case, that the defendant had an af-

filiation with the principals of the crime

(People v. Cole, supra; People v. Crutcher,

supra), that the defendant's conduct after

the theft is compatible with the view that

she was fleeing the scene (People v.

Pendleton (1966), 75 I1l1.App.2d 314, 221

N.E.2d 112), that the defendant diverted

the attention of the clerk at the exact time

A-25

the theft took place (Snyder v. Commonwealth

(1961), 202 Va. 1009, 121 S.E.2d 452), and

that the defendant made no effort to apprise

the clerk or the authorities of the fact of

the theft which had occurred within a few

feet of her (People v. Crutcher, supra),

we become convinced that the jury had more

than ample evidence of the defendant's

guilt. The chain of evidence is a series -

of circumstances: presence, diversion,

silence, association and flight. These

elements of the State's proof present a

formidable and unbroken chain of facts and

events. The evidence was sufficient, and

the case properly submitted to the jury.

PRESENCE DURING PEREMPTORY CHALLENGE ¢

Hart claims that her absence during the

final stage of jury selection violated her

due process rights and confrontation rights

under the constitution. Specifically, she

contends that she had a constitutionally

guaranteed right to be present during the

peremptory challenges of the jury.

In making this argument, Hart cites Snyder

v. Massachusetts (1934), 291 U.S. 97, 54

S.Ct. 330, 78 L.Ed. 674, for the proposition

that a defendant has a right to be present

A-26

at all stages of the proceedings where funda-

mental fairness might be thwarted by her

absence. See State v. Peters (1965), 146

Mont. 188, 405 P.2d 642. This Court has

held that a defendant's rights are not

violated when the matters handled during

his or her absence were purely legal.

State v. Peters, supra. Hart argues,

however, that the peremptory challenges

stage of pretrial proceedings is not a

purely legal exercise. She cites an Idaho

decision as persuasive authority for the

rule that voir dire jury selection process

is a vital stage of the proceedings at

which defendant's presence is essential.

Idaho v. Carver (1972), 94 Idaho 677,

496 P.2d 676. Finally, defendant also

contends that her failure to object or

protest her absence did not result in a

waiver of the right. (See State v. Reed

(1922), 65 Mont. 51, 210 P. 756, wherein

we held that the right to be present at

all crucial stages of the proceedings is

a nonwaivable right.)

We are of the opinion, however, that

the act of peremptorily challenging the

jury is a wholly legal exercise and

defendant's absence from that stage of

A-27

the proceedings is in no way violative

of defendant's rights. Idaho v. Carver,

supra, is not properly relied on by

defendant. In that case, defendant was

not present at any time during the selec-

tion of the jury that ultimately tried

him. In this case, however, the record

reflects that Hart was absent only during

the peremptory challenges. Although

defendant's presence may be crucial during

the voir dire questioning of the jury, the

act of the peremptory challenge of jurors

is a pro forma execution of the decisions

formulated during questioning. The ab-

sence of defendant was not injurious to

either her right of due process or her

right of confrontation.

JURY INSTRUCTION

Defendant's final assignment of error |

is directed at the District Court's refusal

of her proposed Instruction No. 9, regard-

ing the credibility of witness identifica-

tion testimony. That proposed: instruction

is set forth below:

"Identification testimony is an

expression of belief of impression

by the witness. Its value depends

on the opportunity the witness had

A-28

to observe the offender at the time

of the offense and to make reliable

identification later.

"In appraising the identification

testimony of a witness, you should

consider the following:

"(1) Are you convinced that the

witness had a capacity and adequate

opportunity to observe the offender?

"Whether the witness had an adequate

opportunity to observe the offender

at the time of the offense will be

affected by such matters as how long

or short a time was available, how

far or close the witness was, how good

were lighting conditions, whether the

witness had occasion to see or know

the person in the past.

"(2) Are you satisfied that the

identification made by the witness

subsequent to the offense was a

product of his own recollection?

You may take into account both the

strength of the identification, and

the circumstances under which the

identification was made.

"If the identification by the witness

may have been influenced by circum-

stances under which the defendant was

presented to him for identification

you should scrutinize the identifica-

tion with great care. You may also

consider the length of time that

elapsed between the occurrence of the

crime and the next opportunity of the

A-29

witness to see the defendant, as a

factor bearing on the reliability of

the identification."

The State objected to this instruction

because it had been offered without any

authority. On appeal defendant does not

argue that the instruction is a correct

statement of the law but only that she was

entitled to an instruction on the credibility

of a witness's identification of the offender.

Two points sustain our finding that there

was no reversible error in the refusal of the

District Court to give Hart's jury Instruction

No. 9. First of all, the record shows that

the jury was told by the judge in Instruction

No. 2:

"You are the sole judges of the credibility

of all the witnesses who have testified

in this case, and of the weight to be

given their testimony. A witness is

presumed to speak the truth; but this

presumption may be repelled by the man-

ner in which he testifies, by the nature

of his testimony, or by evidence af-

fecting his character for truth, honesty

or integrity, or his motives, or by

contradictory evidence; and in deter-

mining the weight to be given to the

testimony of any witness, you have a

right to consider the appearance of each

witness on the stand, his manner of

testifying, his apparent candor or lack

of candor, his apparent fairness or lack

of fairness, his apparent intelligence

A-30

or lack of intelligence, his knowledge

and means of knowledge on the subject

upon which he testifies, together with

all the other circumstances appearing

in evidence on the trial." (Emphasis

added.) .

We are persuaded that the jury was proper-

ly and adequately instructed on the credi-

bility of all witnesses, including that of

the eyewitness, June Carranza.

We also feel that the circumstances do

not dictate the giving of Hart's proposed

instruction. Such an instruction may be

proper, if not mandatory, in certain cases.

The necessity of this type of instruction

is especially clear when there is only a

single eyewitness"s unsubstantiated testi-

mony which identifies the offender. United

States v. Masterson (9th Cir. 1976), 529

F.2d 30. But in the case before us, June

Carranza's testimony was corroborated by

the presence of defendant's fingerprints

on the wineglasses. Although the finger-

prints are not without dispute, we find

that even given that dispute as valid, they

are sufficiently supportive of Carranza's

testimony to amply justify the refusal of

defendant's proposed Instruction No. 9.

We conclude, therefore, that the conviction

A-31

of Shirley Hart should be affirmed.

John Conway Harrison

Justice

We concur:

Frank J. Haswell

Chief Justice

Gene B. Daly

John C. Sheehy

Justices

This cause was submitted prior to January

5, 1981. Mr. Justice Daniel J. Shea will

fill a separate opinion later.

No. 80-101

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,

Plaintiff and Respondent,

Vv.

SHIRLEY BUSBY HART a/k/a

SHIRLEY ANNE CHITTENDEN,

Defendant and Appellant.

PETITION FOR REHEARING

Appellant, Shirley Hart, by and

through her counsel, respectfully peti-

tions for a rehearing in her appeal

based upon the following facts and issues

which were overlooked by the Court and

the controlling decisions which the Court

did not direct its attention to.

I.

THE COURT OVERLOOKED THE FACTS THAT

SHOWED THE PROSECUTOR'S PREJUDICIAL

CONDUCT WAS INTENTIONAL AND HAD A

CUMULATIVE EFFECT IN DENYING APPELLANT

A FAIR TRIAL.

The Court's Opinion overlooked the

facts surrounding the prosecutor's intro-

A-33

duction of the prejudicial testimony

of Maryona Johnson. The Court's

Opinion states that there was no

error in the prosecutor impeaching

his own witness, but that is not the

critical issue here. What is critical

is that the prosecutor knew in advance

that this witness would likely perjure

herself, and he knew in advance that her

testimony was unnecessary and merely

cumulative of the testimony of Dixie

Strid. The only explanation for the

introduction of Johnson's testimony

then is that the prosecutor knew her

demeanor would be very damaging to the

Appellant. And, in fact, when it was

introduced he himself admitted it was

improper and moved for a mistrial. The

Court's Opinion completely ignored that

critical fact and allowed this impro-

priety to taint the trial.

The Court's Opinion also ignored the

prosecutor's intentional cross-examination

of the witness, Sandy Karst about a mat-

ter specifically prohibited by Court

Order. Again, the prosecutor's

questioning about a specific date

was both unnecessary, intentional, and

A-34

therefore unscrupulous. The Court's Opinion

states that Appellant's physical condition

was put in issue by her defense, but it

fails to point to any reason why the

prosecutor was justified in directly ad-

dressing the withdrawn alibi issue and

referrinc to a specific date. There was

absolutely no need for the prosecutor

to intentionally make reference to that

specific date.

Finally the Court's Opinion says the

prosecutor's intentional reference to

the Appellant's "knowledge" in his closing

argument was "simply too remote in infer-

ence to be prejudicial error." (Op. at

9). Ironically, and unfortunately true

for the Appellant, the prosecutorial

reference to the non-testifying Defendant's

"knowledge" was exactly the point at issue

in the Griffin case cited by the Court in

its Opinion. In Griffin, the prosecutor

-- like the prosecutor here ~- made

references to the Defendant's "knowledge"

and that reference was the basis for the

United States Supreme Court's reversal

of the conviction. Clearly, the Court's

Opinion overlooked that decision which

A-35

is controlling here.

These three instances demonstrate the

overzealous over-reaching of the prosecutor

here in order to achieve conviction. The

evidence was so slim that such over-reaching

was necessary to achieve’ the conviction and

this Court should simply not grant such

license to prosecutors and condone such

conduct which violates the ethical and

constitutional responsibilities of all

prosecutors in this state.

II.

THE COURT'S OPINION OVERLOOKED THE

CRITICAL IMPORTANCE OF THE LOWER COURT'S

TAKING JUDICIAL NOTICE TO ESTABLISH THE

FACT OF THE APPELLANT'S PRESENCE IN THE

STORE AND HER ASSOCIATION WITH THE

ALLEGED PRINCIPALS.

In its Opinion, the Court erred in

saying that the judicial notice of

pleadings was only concerned with the

fact of the charges against Gunsch and

Harris, not the validity of the charges.

Yet, on page 12, the Opinion states that

Gunsch and Harris were, in fact, the two

"principals." Thus, the Court is itself

confusing the fact of the charges against

A-36

Gunsch and Harris and their alleged validity.

This confusion shows exactly why judicial

notice was improper here. Just as this

Court was confused about that issue, so it

was clearly likely to confuse the jury.

There was no evidence to support the

finding of guilt by accountability of a

crime except by association with some

speculative and unproved principals.

The Court ignored its own controlling

precedent and effectively »verruled it.

See State ex rel Bacorn v. District Court,

73 Mont. 297, 236 P. 553 (1925).

iit.

THE COURT'S OPINION FAILED TO EVEN

ADDRESS THE FACT THAT ALL THE EVIDENCE

AGAINST APPELLANT WAS CIRCUMSTANTIAL.

During oral argument there was con-

siderable concern about the lack of

direct evidence to support proof of the

required element of intent. Yet, the

Court's Opinion did not even address the

critical rule that to substantiate a

conviction circumstantial evidence must

“be inconsistent with any rational hypo-

thesis other than his guilt." State v.

Gates, 131 Mont. 78, 82, 307 P.2da 248

(1957).

A-37

The Court also failed to distinguish or

even cite the decision which is on all fours

with the facts of this case from Oregon.

State v. Jefferson, 496 P.2d 35 (1972). We

submit that if the Court is to follow the

clear precedent in this state and in its

sister state, and follow the rules regarding

convictions based upon circumstantial evi-

dence, it has no choice but to overturn the

conviction.

Iv.

THE COURT OVERLOOKED THE CLEAR RATIONALE

BEHNIND THE DECISION OF IDAHO V. CARVER.

The Court's Opinion vainly attempts to

distinguish Idaho v. Carver, 94 Idaho 677,

496 P.2d 676 (1972). The Opinion says that

in that case, the Defendants were not pre-

sent during voir dire at all, which dis-

tinguishes the case at bar. However, in

Carver, the Idaho Supreme Court made express

the reason behind the necessity of the

Defendants’ presence during the actual

exercise of preemptory challenges: It is

to allow the Defendant the opportunity to

aid counsel in choosing the jury because

the Defendant "may wish to challenge a

particular prospective juror for any one

of several valid reasons, one of which may

A-38

be a negative visceral reaction." The

Idaho Supreme Court also pointed out that

the Defendant was entitled to "first-hand

knowledge of the actions taken which lead

to the eventual outcome of the trial." Or

else, "an accused will automatically be

suspicious." 496 P.2d at 679.

CONCLUSION

Appellart would therefore respectfully

submit that her trial was tainted from

start to finish with prejudicial conduct

by the prosecutor which had the cumulative

impact which resulted in her conviction.

The Court's Opinion fails to recognize

this cumulative effect and overlooks all

of the decisions cited by Appellant in her

Brief which are controlling here and

therefore effectively overrules those

decisions.

DATED this 22nd day of February, 1981.

William A. Rossbach

WILLIAM A. ROSSBACH

320 North Orange Street

Missoula, Montana 59801

Attorney for Appellant

IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 80-101

STATE OF MONTANA,

Plaintiff and Respondent,

vs.

SHIRLEY BUSBY HART a/k/a

SHIRLEY ANNE CHITTENDEN,

Defendant and Appellant.

ORDER

PER CURIAM:

The petition for rehearing is denied.

DATED this 26th day of March, 1981.

Frank I. Haswell

Chief Justice

John Conway Harrison

John C. Sheehy

Justices

Mr. Justice Daniel J. Shea would grant a

rehearing.

Daniel J. Shea

A-40

EXCERPTS FROM TRIAL TRANSCRIPT

At page 25:

MR. CORBIN: What is the basis of our

friendship?

JUROR: J.C.'s. We are shareholders in

a corporation. Just personal acquaintances,

I guess.

At page 423:

MR. CORBIN: The dates. I ask you to

reject those dates. You know what the

date was. June knows what the date was

and the defendant knows what the date

was.