# Petition — Hart v. Montana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 827

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2167%3A1. Public record. Not legal advice.