No. 85-550 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSDALE STATCZAR, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Eoggs argued, Missoula, Montana 

Ferguson & Mitchell; Paulette C. Ferguson, Missoula, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kimberly Kradolfer argued, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana; Karen Towsend argued, Deputy County Atty. 

Submitted: June 101 1987 

Decided: October 6, 1987 

Filed. : 

OCT 6 - 1987. 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Dale Statczar appeals his conviction for 

sexual intercourse without consent. Defendant was charged by 

information on November 18, 1983. In January 1984, defendant 

was found unfit to proceed to trial in a competency hearing 

held pursuant to S 46-14-221, MCA. Following a second competency hearing in September 1984, the court reversed its 

earlier decision and found defendant Statczar fit to proceed 

to trial. Defendant's first trial in April, 1985 resulted in 

a hung jury. Defendant was convicted following his second 

trial in May and June, 1985. He was sentenced to twenty 

years in the Montana State Prison with fifteen years 

suspended. 

We reverse. 

Ten issues are presented for our review. Because we 

are reversing defendant's conviction, we limit our review to 

the following issues: 

(1) Did the District Court err when it permitted the 

defendant's former attorney, John Riddiough, to testify at 

trial? 

(2) Did the District Court violate defendant's right 

against self-incrimination when it permitted. the State to 

call Dr. William Stratford to testify against defendant? 

(3) Does substantial evidence support the District 

Court's determination that defendant was fit to proceed to 

trial? 

(4) Did the District Court err when it denied defendant's motion for a mistrial based on alleged improper prosecutorial comments during closing argument? 

The victim, J. R., testified as follows. In the early 

morning hours of October 16, 1983, she was attacked by two 

men outside a Circle K store located on Russell and Longstaff 
Streets in Missoula. Moments prior to the attack, J. R. made 

a phone call to her boyfriend, Lane Cunningham. J. R. and 

Cunningham argued during the telephone conversation. 

Cunningham eventually hung up on J. R.. While J. R. was 

redialing Cunningham's phone number, the defendant approached 

her and asked if he could borrow some cigarettes. J. R. 

refused. After Cunningham hung up on J. R. a second time, 

she walked to her car for money for additional phone calls 

and more cigarettes. J. R. 's car was parked beside the 

Circle K store. As J. R. approached her car, two men grabbed 

her from behind and dragged her to another vehicle. She 

recognized one of her assailants as the man who had earlier 

asked for cigarettes. 

After J. R. was dragged to the other vehicle, one of 

her assailants held her down, while the defendant moved on 

top of her. J. R. stated she was raped with an artificial 

device, "a penis that wasn't real." She also testified that 

the artificial penis was shoved into her mouth and she described biting it and causing no reaction in the defendant. 

J. R. was able to determine that defendant was wearing "some 

sort of bag" along his thigh. Finally, J. R. testified the 

defendant inserted several smooth stones in her vagina after 

defendant's accomplice asked if "he'd gotten his rocks off 

yet." J. R. was further assaulted and threatened by the two 

men before being pushed from the car. Testimony at trial 

established the above-mentioned attack took place between 

2:30-3:00 a.m., with the most likely time of attack at 2:45 

a.m. 

At 3:14 a.m., 911 received a call from a woman who 

requested to remain anonymous, stating that she witnessed, 

approximately one-half hour previously, a rape or its aftermath at the Circle K store on Grant Avenue and South Avenue. 

The anonymous caller stated the victim had left the crime 
scene in a car. The caller further stated that she followed 

the victim to 14th Street, where the victim parked her car 

and disappeared on foot. The informant stated she stopped, 

looked in the car, and found a purse containing a slip of 

paper with two telephone numbers. She recited the numbers to 

the 911 operator. The telephone numbers belonged to Lane 

Cunningham and Delores Reno. In response to the call, a 

patrol car was dispatched to the Circle K at Grant Avenue and 

South Avenue. The officers found no evidence of a 

disturbance. 

At 4:35 a.m., J. R. placed a call to 911. She reported 

that she was attacked after making a phone call at the Circle 

K store on Grant Avenue and South Avenue. Missoula City 

Police Officer Don Millhouse responded to J. R.'s call at 

4:54 a.m. J. R. reported to Millhouse that she had "recovered" her car and purse. J. R. then changed her statement 

and told Officer Millhouse she was attacked near another 

Circle K store at Russell and Longstaff. 

J. R. was taken to St. Patrick's Hospital. She was 

examined by emergency room personnel. J. R. had scratches 

around the chest, abdomen, and breasts and dirt around the 

perineal area, and "five roundish stones in the vagina, 

ranging in size from a quarter of one inch to two inches." 

Later that afternoon J. R. told Detective Pete 

Lawrenson that her assailant was a white male, twenty-five to 

thirty years of age, 5'6" to 5'8" in height, with bushy 

sideburns and a mustache. She also stated that he had a 

plastic-like bag attached to his leg. She described the 

assailant's vehicle as a d.ark colored "car-like truck." The 

assailant was wearing a dark jacket with something silver, 

perhaps buttons, on the shoulder. 

Detective Lawrenson contacted each Missoula urologist 

for information concerning a person matching this 
description. Dr. Bryan Olson responded that defendant Dale 

Statczar matched the above-mentioned description. 

Detective Lawrenson presented J. R. with a six-person 

photo lineup including Statczar's photograph. J. R. identified defendant Statczar as her assailant. 

Defendant was arrested eighteen days after the crime, 

on November 3, 1983. A dark blue Chevrolet "El Camino" belonging to defendant Statczar's brother was found outside 

defendant's home. Law enforcement personnel did not conduct a 

forensic test of the vehicle's interior. A search warrant 

for defendant's residence led to the seizure of a dark jacket 

with silver buttons and a plastic syringe which the defendant 

used. for maintenance of his urine bag. 

Defendant Statczar, at the time of his arrest, was 

twenty-three years old. When Statczar was nineteen years 

old, he was involved in a motorcycle accident leaving him 

impotent, without urinary function and with a stiff and 

disfigured. left leg. Statczar spent approximately one and 

one-half years at St. Patrick's Hospital in Missoula recovering from his injuries. Testimony revealed that prior to his 

motorcycle accident Statczar possessed severe learning 

disabilities. 

Statczar wa.s sent on November 3, 1983, to the Montana 

State Hospital at Warm Springs for evaluation of his fitness 

to proceed. On January 18, 1984, following examination by 

Dr. Harry Xanthopoulos, chief psychiatrist at the Montana 

State Hospital, and Dr. Roy Hamlin, psychologist, the court 

found defendant unfit to proceed to trial. 

A second competency hearing was held on September 14, 

1984. Dr. William Stratford testified for the State. Dr. 

Xanthopoulous and defendant's attorney John Riddiough testified for defendant. The court found. defendant competent and 

fit to proceed. 
A three-week trial, held in April, 1985, resulted in a 

hung jury. A second trial, held from May 21 to June 5, 1985, 

resulted in defendant's conviction. 

Issue 1 

Did the District Court err when it permitted defendant's attorney, John Riddiough, to testify at trial? 

During the September 14, 1984, competency hearing, 

defendant's second court-appointed attorney, John Riddiough, 

called himself to the witness stand. Riddiough testified in 

narrative form that he had great difficulty communicating 

with defendant Statczar. Riddiough stated that defendant had 

told him three different alibis concerning his whereabouts 

during the night and early morning hours of October 15 and 

16, 1983. Riddiough testified, "Statczar related to me that 

he had little or no recollections of giving the previous 

stories . . . " Riddiough also testified that Statczar did 

not appreciate the significance of the varying alibi stories: 

My impression was that he believed 

wholeheartedly in the story that he had 

given me. My impression was that he was 

not giving me a story to attempt to come 

up with a better alibi as it were. He 

gave me the impression that, frankly, he 

seemed surprised when I confronted him 

with the previous alibi stories. 

During Riddiough's testimony, Statczar remained seated 

at defense counsel's table. Defendant was not called to 

testify and did not object to Riddiough's testimony. 

During the second competency hearing on September 14, 

1984, Dr. Xanthopoulos and Dr. Hamlin testified that Statczar 

was suffering from organic personality syndrome, that he had 

an IQ of 75, and that he was functioning at a "borderline 

level." When asked what a judge's role is at trial, Statczar 
responded, "The judge is to wear a black robe and sit in 

front of the courtroom." 

Riddiough withd.rew as defense counsel following the 

District Court's finding that defendant was competent to 

stand trial. Riddiough was subsequently called to testify 

for the State. At trial, Riddiough testified that defendant 

had given three different statements concerning his whereabouts on the night and early morning of October 15 and 16, 

1983. Riddiough testified that defendant made the following 

inconsistent statements: (1) that defendant went to a movie 

with his brother and sister-in-law in Missoula and (2) that 

he went to a birthday party with relatives in Ronan, and (3) 

that he stayed home alone in Charlo. During closing arguments, the State referred to Riddiough's testimony and argued 

that defendant had. "lied" to his own attorney. 

At trial, Riddiough was limited by the court to testifying that he had been defendant's court-appointed counsel 

and that defendant had made the above-mentioned inconsistent 

statements. The court prohibited defense counsel from asking, and Riddiough from responding to, questions which defendant contends would explain his inconsistent statements. The 

court prohibited Riddiough from testifying that his interviews with defendant took place in Warm Springs State Hospital, that Riddiough felt defendant was mentally deficient and 

unable to comprehend the proceedings and that Riddiough did 

not believe defendant was lying. 

Defendant contends that Riddiough's testimony at the 

second competency hearing constituted a breach of his 

attorney-client privilege. The attorney-client privilege is 

defined in § 26-1-803, MCA: 

An attorney cannot, without the consent 

of his client, be examined as to any 

communication made by his client to him 
or his advice given thereon in the 

course of his professional employment. 

A careful review of the record reveals that defense 

counsel Riddiough violated his confid-ential relationship with 

his client, Dale Statczar, when he offered testimony of 

Statczar's conflicting alibi statements. At the September 

14, 1984, competency hearing, Riddiough called himself to the 

witness stand and stated: "I'm making this statement-- 

because it is a breach of the attorney-client privilege-- 

because I feel it is necessary to make this statement." 

Section 26-1-803, MCA, provides that an attorney cannot be 

examined regarding confidential communications made in the 

course of employment "without the consent of his client." 

Accordingly, only the client can waive the privilege. State 

v. Iwakiri (Id. 1984), 682 P.2d 571, 574. We find no evidence that defendant Statczar consented to Riddioughqs voluntary disclosure of defendant's confidential statements. 

The State contends that, by failing to object to 

Riddiough's testimony, defendant waived the attorney-client 

privilege. A client may waive the attorney-client privilege: 

If the client elicits testimony from the 

lawyer-witness as to privileged communications this obviously would waive as to 

all consultations relating to the same 

subject, just a.s the client's own testimony would. 

McCormick, Evidence § 93 at 225. 

* Defendant claims that he did not waive his 

attorney-client privilege. Waiver is defined as the intentional or voluntary relinqui.shment of a. known right or conduct which implies relinquishment of a known right. Kuiper 

v. District Court (1981), 632 P.2d 694, 698, 38 St.Rep. 1288. 

The burden of establishing waiver of the privilege is on the 

party seeking to overcome the privilege. Miller v. Dis. Ct. 
City and Cty of Denver (Colo. 1987), 737 P.2d 834, 838. Two 

elements must be considered when a court reviews the waiver 

of an attorney-client privilege: (1) the element of a client's implied intention and (2) the element of fairness and 

consistency. See, 8 Wigmore, Evidence O 2327 at 636; State 

v. Balkin (Wash. 1987), 737 P.2d 1035, 1037. 

An implied waiver must be supported by evidence showing 

that defendant, by words or by conduct, has impliedly forsaken his privilege of confidentiality with respect to the 

communication in question. Miller v. Dis. Ct., City and Cty 

of Denver, 737 P.2d at 838. The State has not provided this 

Court with evidence that defendant intended to waive his 

attorney-client privilege. Defendant did not testify in 

either competency hearing or in either trial. Defendant was 

not asked whether he waived his attorney-client privilege for 

the competency hearing or for all further judicial 

proceedings. 

The second part of Wigmore's waiver test concerns 

consistency and fairness. We note that defendant Statczar 

had no prior contact with the judicial system. Given defendant's mental capacity and unfamiliarity with courtroom 

procedure, we hold it is inherently unfair to require the 

defendant, under the specific facts before us, to object to 

his attorney's testimony at the competency hearing in order 

to prevent his confidential statements from being used 

against him at trial. We note that at trial, defendant's 

newly court-appointed counsel strenuously objected to 

Kiddiough's testimony. 

We hold the following factors prejudiced defendant's 

right to a fair trial: (1) Riddiough's testimony of defendant 

Statczar's inconsistent statements was extremely prejudicial 

with limited probative value. Rule 403, M.R.Evid. (2) The 

State presented no evidence that Statczar intended to waive 
his right not to divulge this privileged information. (3) 

Defendant's right against self-incrimination need not be 

surrendered in order to assert a statutory right. Section 

46-14-103, MCA; Simmons v. TJnited States (1968), 390 U.S. 

377, 394, 88 S.Ct. 967, 976, 19 L.Ed.2d 1247, 1259. We hold 

that fairness and consistency coupled with the lack of evidence that defendant intended to waive the privilege requires 

us to reverse defendant's conviction. 

Issue 2 

Did the District Court violate defendant's right 

against self-incrimination when it permitted the State to 

call Dr. William Stratford to testify against defendant? 

Defendant claims that his right against self-incrimination was violated when the court permitted the State to call 

Dr. William Stratford on rebuttal and allowed him to testify 

to statements made by defendant. The testimony in issue 

concerns defendant's recollection of events and defendant's 

factual understanding of the case. Stratford examined defendant on June 28, 1984, and on September 13, 1984. The State 

called Stratford to testify at defendant's second competency 

hearing on September 14, 1984, and at both of defendant's 

trials. 

Article 11, Sec. 26, 1972 Mont. Const., provides in 

pertinent part: "No person shall be compelled to testify 

against himself in a criminal proceeding." 

At defendant's second trial, Dr. Stratford testified: 

Q. (By Ms. Townsend) What was he able 

to tell you, Doctor, with reference to 

[defendant ' s] knowledge of some of the 

kinds of evidence that had been collected in this investigation? 

Mr. Roggs : Objection, Hearsay, irrelevant. 
The Court: Overruled. 

A. [Defendant's] understanding, that 

is, what he portrayed to me, I can tell 

you. Whether it was truthful or not, of 

course, is for the jury to decide. 

A. Okay. [Defendant] indicated there 

were particular kinds of automobiles, or 

a type of automobile involved. He 

indicated there was a particular kind of 

jacket that may be involved by the 

person who did this, that the individual 

involved had a colostomy bag, that there 

was a particular timing sequence, and 

that there will be a lineup, not a 

physical lineup, but as he referred to 

it, a photographic lineup. These were 

some of the factors that he indicated. 

In its closing argument, the State referred to Stratford's 

testimony tha.t defendant had knowledge of important and 

incriminating evidence. 

Section 46-14-401, MCA, provides in pertinent part: 

- A statement made --- for the purpose of 

psy- examination or treatment 

provided for in this chapter by a person 

subjected to such examination or treatment is = admissible in evidence 

against-him -- in any ~riminar~roceedinq . . . on any issue other than --- that of 

- his mental condition. -- It is admissible 

-- on the issue -- of his mental condition, 

whether or not it would otherwise be 

considered a privileged communication, 

unless it constitutes an admission of 

guilt orthe crime charged. [~mphasis 

added. 1- 

Earlier we held that a defendant's admissions and 

confessions, when made as a privileged communication to a 

psychiatrist, are protected and therefore inadmissible. 

State v. Clark (Mont. 1984), 682 P.2d 1339, 1352, 41 St.Rep. 
833, 848. At trial, Dr. Stratford was permitted to testify 

that defendant's mental capacity enabled him to recall certain elements of the State's case against the defendant. 

Stratford's testimony is generally admissible because defendant has placed his mental condition at issue. However, 

Stratford' s testimony of defendant ' s recall of the incriminating evidence (automobile, jacket, colostomy bag) comes 

dangerously close to violating defendant's right against 

self-incrimination. See, S 46-14-401, MCA, and Article 11, 

Sec. 26, 1972 Mont. Const. 

Since we are reversing defendant's conviction due to a 

violation of defendant's attorney-client privilege, we are 

not required to decide this issue. However, we caution the 

District Court to refrain from admitting evidence of defendant's mental condition which implies or constitutes an 

admission of guilt of the crime charged. Section 46-14-401, 

MCA . 

Issue 3 

Does substantial evidence support the District Court's 

determination that defendant was mentally competent to proceed to trial? 

Defendant contends the District Court abused its discretion when it determined defendant was fit to proceed to 

trial. Fitness to proceed is defined as: 

The test [is] whether the defendant has 

sufficient present ability to consult 

with his lawyer with a reasonable degree 

of rational understanding and whether he 

has a rational as well as a factual 

understanding of the proceedings against 

him. 
State v. Austad (1981), 197 Mont. 70, 78, 641 ~.2d 1373, 

1378, citing Dusky v. United States (1960), 362 U.S. 402, 

403, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825. 

Section 46-14-1.03, MCA, provides: 

- No person - who, as a result of mental 

disea-se or defect, is unable to understand the proceedinqFagainst him or - to 

assist in - - his own - defense shali- be 

tried, convicted or sentenced for the 

commission of an offense so long as such 

incapacity endures. [Emphasis added.] 

Defendant contends "eyewitness identification, alibi 

and statements attributed to the defendant comprised the core 

of the [State's] case." In Austad, 197 Mont. at 79, 641 P.2d 

at 1378, we held that if physical evidence comprises the core 

of the State's case, defendant's fitness to proceed might 

hamper "preparation and preservation of the defense." Therefore, defendant argues his defense was clearly hindered by 

his lack of fitness to assist and prepare his defense. 

Defendant cites testimony of John Riddiough, Dr. Henry 

Xanthopoulos, Dr. Roy Hamlin and Dr. William Stratford. 

At the second competency hearing on September 14, 1984, 

Dr. Stratford testified in detail about his methods of evaluation and basis for his determination that defendant was fit 

to proceed to trial. Dr. Stratford reviewed the allegations 

made against the defendant, police reports concerning the 

nature of the crime charged, information he had received from 

the Montana State Hospital at Warm Springs and hospital 

record from St. Patrick's Hospital regarding defendant's 

motorcycle accident. Dr. Stratford concluded that defendant 

Statczar was capable of understanding the proceedings against 

him and of assisting in his own defense. 

Dr. Xanthopoulos testified at the second competency 

hearing that defendant suffers from a "serious mental defect, 
Organic Personality Syndrome." He also testified that defendant may have suffered brain damage following his motorcycle 

accident in 1979 and stated that defendant performs at a 

"borderline level" of intelligence. Dr. Hamlin's testimony 

closely followed the testimony of Dr. Xanthopoulos. 

As stated earlier, John Riddiough, defendant's courtappointed attorney offered testimony that defendant was 

unable to understand the judicial proceedings. As evidence 

of defendant's mental incompetency, Riddiough also testified 

that defendant had given three inconsistent alibi statements. 

Fitness to proceed to trial is a matter largely within 

the discretion of the District Court. Sections 46-14-202 

through -222, MCA. Therefore, we will not overturn a decision of the District Court in the absence of a clear abuse of 

discretion. The evidence may conflict, but it is substantial 

if any reasonable trier of fact could rely upon the evidence 

in support of its conclusion. State v. Hall (1983), 203 

Mont. 529, 533, 662 P.2d 1306, 1308. 

At the second competency hearing the State and defendant presented conflicting evidence of Statczar's fitness to 

proceed. The District Court heard the evidence and chose to 

adopt the State's position. The record reveals that substa.ntial credible evidence supports the finding of the District 

Court. Accordingly, we hold the District Court properly 

determined that defendant was fit to proceed to trial. 

Section 46-14-103, MCA. 

Issue 4 

Did the District Court err when it denied defendant's 

motion for a mistrial based on improper prosecutorial comments during closing argument? 

Following the State's closing arguments defendant moved 

for a mistrial alleging prosecutorial misconduct. The 
District Court denied defendant's motion. During closing 

argument the State argued that its office was too busy to 

prosecute innocent persons: "We don't have to do that, 

ladies and gentlemen. We do have 1,450 cases a year in the 

county attorney's office. We don't have time to spend chasing people that we believe are innocent or [have time] to 

frame people. " 

We disapproved an attorney's assertion of a personal 

opinion in State v. Armstrong (1980), 189 Mont. 407, 427, 616 

P.2d 341, 352. Because defendant has not provided this Court 

with evidence of undue prejudice, we hold the District Court 

properly denied defendant's motion for a new trial. However, 

we caution the State to refrain from utilizing the 

above-mentioned trial tactic. 

We reverse defendant's conviction and. remand to the 

District Court for further proceedings. 

4 

concur: