No. 89-258 IN THE SUPREME COURT OF THE STATE OF MONTANA

MARK N. SMITH, Plaintiff and Appellant,-vsROOSEVELT COUNTY,MONTANA, and SHERIFF JOHN Q. GRAINGER, Defendants and Respondents.

APPEAL FROM: District Court of the Fifteenth Judicial District, In and for the County of Roosevelt, The Honorable M. James Sorte, Judge presiding. COUNSEL OF RECORD: For Appellant: Arnie A. Hove, Circle, Montana For Respondent: Ralph J. Patch, Roosevelt County Attorney, Wolf Point, Montana

Submitted on Briefs: Oct. 13, 1989 Decided: March 8, 1990 Filed:JusticeWilliam E. Hunt, Sr., delivered the Opinion of the Court.

Mark N. Smith, plaintiff and appellant, brought this action against Roosevelt County and Sheriff John Q. Grainger, defendants and respondents,allegingthathewasunjustifiably terminated from hisposition as deputy sheriffwith theRoosevelt County Sheriff's Department. Following a trial held in the Fifteenth Judicial District Court, Roosevelt County, a jury returned a verdict in favor of defendants. Smith appeals. We affirm. The following issues are raised on appeal: 1. Whether theDistrictCourt erred indenying Smith'smotion for summary judgment. 2. Whether Smith was denied a fair trial when the District Court denied his motion in limineand permitted testimony of other wrongdoings that were not the specific reason forhis termination. 3. Whether substantial credibleevidence supportedthe jury's finding that Sheriff Grainger justifiably terminated Smith. 4. Whether the District Court erred in refusing to allow opinion testimony on the legal definition of gross inefficiency. 5. Whether the District Court erred in allowing an investigative report to be submitted to the jury. 6. Whether the District Court erred in instructing the jury on the definitions of assault, battery and mistreatment 

### of prisoners. 7. Whether the District Court erred in instructing the jury in accordancewith Rule 404(b), M.R.Evid. Roosevelt County Sheriff Dean Mahlum hired Mark N. Smith as a deputy sheriff on October 1, 1985. In November, 1986, John Q. Grainger was elected to replace Mahlum and assumed his duties as the new sheriff in January, 1987. OnJuly 6,1988,aRooseveltCountydispatcherand adetention officerobserved Smiththrowa young,intoxicatedprisoner onto the floor of the booking room of the county jail and proceed to beat

### the prisoner's head into the floor. Both the dispatcher and the jailer charged that Smith's actions constituted an excessive use of force. Smith contended that the actions were needed to physically restrain the prisoner. Following an investigation, Sheriff Grainger discharged Smith from his employment with the department. The termination letter, dated July 19, 1988,read in its entirety as follows: This letter is to inform you that the review of the charges inthecomplaint of (DeputyMark Smith assaulting prisoner Julian Deserly) has been completed and the disposition finding is classified as ttSustained 

## - The allegation was supported by the proper and sufficient evidence. The following is to inform you that your employment as a Deputy Sheriff is terminated effective on the above date. The cause for termination is as follows: On the evening ofJuly 6,1988,at approximately 5:50 p.m., you did assault aprisoner inyour careand custody, namely, Julian Deserly, at the Roosevelt County Jail. This assault occurred without provocation of any kind on the part of the prisoner. Statements made by you to Sgt. Brockmeyer were decisive in indicating that you had no control over yourself at the time the assault occurred and that you, for some reason, wanted to hurt the prisoner. On separate occasions in 1986 there were investigations into theuse of excessive force. Both aredocumented in yourpersonnel file and on one incident it is documented that you were suspended without pay for a period of ten

(10) 

### days. On your transfer to the Wolf Point area statements weremade by you,something to the effect of, "when I 

### come into a new place I 

### like to create as much hate anddiscontentas I

### can." This typeof attitude and a pattern of using excessive force cannotbe tolerated. Other problems such as failing to complete reports properly or even at all and the fact that you were sleeping on duty while assigned to guard theAgribition have not even been formally addressedyet,but 

### Ibelieve the matter at hand is the major concern of this Departmentand thedisciplinary action taken makes these other violations amoot issue at this time. The incident with prisonerJulianDeserlyis in violation of the Roosevelt County Sheriff's Department's Policies and Procedures, Chapter 7, Section 7, Subsection 8,

### Criminal Conduct which reads as follows: IfDeputieswill obey all laws of the United States, Montana State,and local jurisdictions. Violation ofany law,an indictmentor informationfiled against a deputy or a conviction will be cause fordisciplinaryaction up to and including termination of employment. Internal discipline will not be dependent on the outcome of prosecution." And the specific law that you violated is 45-5-204 Montana Codes Annotated, Mistreating Prisoners which reads as follows: "45-5-204. Mistreating Prisoners. (1) 

### Aperson commits the offense of mistreating prisoners if, being responsible for the care or custody of a prisoner, he purposely or knowingly: (a) assaults or otherwise injures a prisoner, (b) intimidates, threatens, endangers, or withholds reasonable necessities from the prisonerwith thepurpose toobtaina confession fromhim or forany otherpurpose; or (c)violates any civil right of a prisoner. (2) A 

### person convicted of the offense of mistreating prisoners shallbe removed from office or employment and shall be imprisoned in the state prison for a term not to exceed 10years or be fined an amount not to exceed $50,000.00 or both."

Because Julian Deserly, the prisoner allegedly assaulted by 

### Smith, was a Native American, the incident was referred to the Federal Bureau of Investigation. In the fall of 1988, an indictment was filed against Smith in Federal District Court, charging him with mistreatment of a prisoner. In January, 1989,

a jury found Smith not guilty of the charges. Priorto the federal indictment,Smithtimely filed apetition and demand for jury trial with the Fifteenth Judicial District Court, Roosevelt County, pursuant to 5 

### 7-32-2109, MCA, which provides: 

### Any deputy sheriff whose employment is terminated may, within 30 days from the date of the termination of his employment, make applicationtothedistrict courtofthecounty wherein the deputy was employed for a hearing before the court, with or without jury, on the charges resulting in the deputy's termination of employment or discharge. Smith sought reinstatement of his employment with the sheriff's departmentpursuant to 

### 5 7-32-2110, MCA, which provides: In the event that a deputy prevails at the hearing provided for in 7-32-2109, he shall be entitled to be reinstated as a deputy sheriff at the same salary he received prior to his discharge or termination of employment and he shall also be entitled to any rights that might have accrued to his benefit prior to his discharge or termination of employment, including that salary which he would have received but for the termination. Following his acquittal on the criminal charges in federal court, Smith filed a motion for summary judgment in the Roosevelt County District Court. At a hearing held February 21, 1989, the District Court denied Smith's motion for summary judgment and set trial for March 28, 1989. Following a three-day trial, the jury returned a verdict in favor of defendants, finding that Sheriff Grainger justifiably terminated Smith under 5 7-32-2107, MCA.

Whether theDistrict Court erred in denying Smith'smotion for summary judgment? Summary judgment is proper only if the moving party demonstrates the complete absence of material questions of factand that he is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Inthepresent case, Smith,as themoving party, failed to shoulderhis burden of proof. A tenured deputy sheriff may be relieved of his employment only for one or more statutorily enumerated causes. These causes

### are delineated in pertinent part in 5 

### 7-32-2107,MCA, as follows: (1) 

### conviction of a felony subsequent to the commencement of such employment;



# . . . (4) 

### sleepingwhile on duty;

(6) 

### gross inefficiency in the performance of official duties. Smith maintains that the sole cause of his termination was conviction of a felonyoffense. Therefore,he argues, when hewas acquitted by a jury on the criminal charges of mistreatment, the

reason for his terminationwas no longer valid. Consequently,he

was entitled to summary judgment. At the root of Smith's argument is a basic misunderstanding of the termination statute. Smith contends that a deputy sheriff may not be terminated for mistreating a prisoner unless he is convicted of a felony. This simply isnot true. A deputymay also be terminated forgross inefficiency intheperformance of official duties. A violation of official department policy may constitute gross inefficiencywithin themeaning of 5 

### 7-32-2107,MCA. As pointed out in Smith's termination letter, the official policy of the Roosevelt County Sheriff's Department required deputiesto obey all laws. Amere violation of the law constituted a violation of department policy, even if the violation did not result in a felony conviction. Therefore, Sheriff Grainger may have justifiably terminated Smith for gross inefficiency for mistreating a 

### prisoner in his custody, a violation of both statelaw and department policy. Numerous questions of fact remained to be resolved by the jury. The jury needed to determine whether apreponderance of the evidence showed that Smith assaulted a prisoner in his care in violation of 45-5-204, MCA, mistreatment of prisoners, and whether such a violation of law constituted gross inefficiency. The District Court did not err in leaving these factual determinations to the jury.

Whether Smith was denied a fair trial when the District Court denied his motion in limine and permitted testimony of other wrongdoings that were not the specific cause of his termination. Prior to trial, Smith made a motion in limine to excise paragraphs intheterminationletterthatreferred to otheralleged instances of misconduct, e.g., previousmistreatment ofprisoners, failure to complete reports and sleeping while on duty. The District Court denied his motion. Smith contends that the court's denial of his motion was in error because these alleged wrongdoingswere irrelevantand highly prejudicial and should therefore have been kept from the jury. Whether this is sowe need not discussaswe note that itwas Smith who introduced the letter in its entirety to the jury. Thus, any prejudice that may have been caused by the letter's introduction must be laid at the feet of Smith himself. He cannot now claim that he was denied a fair trial by the admission of evidence that he himself introduced.Smith also claims that hewas denied a fair trial because the trial courtpermitted the jury to hear testimony concerning these other instances of misconduct. Once again, we note that this socalled highly prejudicial evidence was introduced by Smith in his

case in chief. The transcripts demonstrate that Smith repeatedly solicited testimony from witnesses regarding those issues he now claims to be so prejudicial. We will not be misled by Smith's attempt to characterize his unsuccessful trial tactics as errors of the District Court. 111. Whether substantial credible evidence supported the jury's finding that Sheriff Grainger justifiably terminated Smith. In thepresent case, two eyewitnesses testified that,without apparent provocation, Smith grabbed the prisoner, Julian Deserly, by the hair, threw him down and slammed his face into the floor. Smithrefuted this testimony,claimingthathe wasmerely following standard procedure for restraining a resistingprisoner. Even if theproof presented at trial conflicts,as it does in this case, this Court will not reweigh the evidence on appeal. It is uniquely within theprovince of the jury todetermine theweight and credibility to be given each piece of proof. Weinberg 

### v. Farmers State Bank of Worden (1988),752 P.2d 719, 730, 45 St.Rep. 391, 405. Viewed in the light most favorabletodefendants,theevidence indicated that Smithmistreated Deserly. Therefore, we hold that substantial credible evidence supported the jury's finding thatSmithwas justifiably terminated from his position. IV. Whether the District Court erred in refusing to allow opinion testimony on the legal definition of gross inefficiency. At trial, Smith attempted to introduce the opinion testimony of former Roosevelt County Sheriff Dean Mahlum and former UndersheriffRobertJ. Dammregardingthe legal definition of gross inefficiency. The court sustained defendants' objection to this testimony. Smith argues that thiswas error. The District Court has broad discretion in determining the admissibility of evidence. We will not overturn its decision to refuse expert testimony absent an abuse of discretion. Massman v. City of Helena (1989), 773 P.2d 1206, 1210, 46 St.Rep. 764, 768. Expert testimony in the form of an opinionmay be allowed if the specialized knowledge of the expert will assist the trier of fact tounderstand the evidence or determine a fact in issue. Rule 702, M.R.Evid. Ordinarily, such testimony is allowed if the evidence or fact in issue isbeyond the ken of the ordinary juror. Thus, we allow expert evidence regarding scientific or technical matters because such testimony is most generally needed to help jurorsunderstand the evidenceand determine the factsof the case. Inthepresent case, even ifwe assume that the former sheriff and undersheriff were qualified as experts to give an opinion as to a legal definition, there was no need to allow such expert testimony. At the close of the presentation of evidence, the jurors were instructed on the definition of gross inefficiency.That instructionwas not so highly technical as to be beyond the comprehension of the ordinary juror. Because expert opinion testimonywas not needed tohelp the jurorsunderstand themeaning of gross inefficiency, the District Court did not err in refusing such testimony. 

### v. Whether the DistrictCourt erred in allowing an investigative report to be submitted to the jury. ~uring his case in chief,smithencouraged Dennis Brockmeyer, the detective who investigated the assault upon Julian Deserly, to read statements from his interview with Deserly. At that point, defendants asked that the report be marked and given to the jury. Thereupon, the report itself was entered into evidence. Smith objected to the exhibit on the grounds that it would be improper to submit the report to the jury. Asnotedpreviously,theadmissibilityofevidence lieswithin the discretion of the trial court. Massman, 773 P.2d at 1210, 46 St.Rep. at 768. The District Court in the present case did not abuse its discretion in allowing the submission of the investigative report to the jury. Smith had already entered the information into the record when he asked Brockmeyer to read from the report. He can hardly complain that submitting the actual exhibit to the jury substantially prejudiced his position. VI

# . Whether the District Court erred in instructing the jury on the definition of assault,battery and mistreatment of prisoners.At trial, the District Court instructed the jury as follows: InstructionNo. 8: An assault is any intentional threat of harmful or offensive contact with another by force under circumstances which create a well-founded fear of such contact, coupled with the apparent present ability to carry out the threat. A battery is an intentional contact by one person with the person of another which is harmful or offensive. Instruction No. 9: An arresting officer may use such force as is reasonably necessary to effect a lawful arrest. However, a police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested as to such excessive force. Instruction No. 10: You are instructed that a person commits the offense of mistreating prisoners if, being responsible for the care or custody of a prisoner, he purposely or knowingly assaults or otherwise injures a prisoner. Smith acknowledges that these instructions are accurate statements of the lawbut he argues that they should not have been given because theymisled and confused the jury. We do not agree. Smith was terminated for mistreating a prisoner when he allegedly assaulted Julian Deserly. Therefore, the jury had to determine whether a preponderance of the evidence proved that an assault actuallyoccurred. InstructionNo. 8aided the jury in its deliberations by informing it of the definitions of assault and battery. Instruction No. 9 aided the jury by instructing it on the amount of force an officermay use inmaking an arrestwithout committing a battery. Instruction No. 10 aided the jury by defining mistreatment, precisely the reason for Smith's termination. These instructionswerenot misleading. On the contrary,they

were needed to help the jury determine the ultimate fact in issue--whether Smithwas justifiably fired formistreating a prisoner in his custody. VII. Whether the District Court erred in instructing the jury in accordance with Rule 404(b), M.R.Evid. During Smith's case in chief aswell asafterthepresentation of evidence, the District Court instructed the jury that evidence of Smith's other wrongdoings was not admitted to prove Smith's character but only to show guilty knowledge of the offense for which Smithwas terminated, to showmalice, to rebut any claim of accident or mistake, to show motive and to show plan and intent. This instruction was in accordance with Rule 404(b)

### , M.R.Evid. Smith argues that the instructionwas confusing and irrelevant and only admissible in criminal cases. We need not discuss the merits, if any, of Smith's argument because, in perusing the record,we find a complete absence of any objection to the instruction. By failing to object to the instruction at the District Court level, Smith failed to preserve the issue for appeal. This Court will not review an issue raised for the first time on appeal. Weinberq, 752 P.2d at 724, 45

Affirmed. /

Justice We Concur: