No. 90-364 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA ex rel. TERESA McCANN OICONNOR, 

Deputy County Attorney for Yellowstone County for 

the State of Montana, 

Petitioner, 

THE DISTRICT COURT OF THE THIRTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, in and for 

the County of Yellowstone, and the Honorable 

District Judge Robert Holmstrom, Jr., 

Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Teresa McCann OIConnor, Deputy County Attorney, 

Billings, Montana 

For Respondent: 

tCi - Marcia K. Good Sept, Thirteenth Judicial District, -3 

<3 Billings, Montana 

3 - t.. . , - - Original Proceeding: August 16, 1990 -. Cl A - 

"3 15 Decided: September 27, 1990 2 

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Justice Fred J. Weber delivered the Opinion of this Court. 

Teresa McCann OuConnor (Ms. OuConnor) Deputy County Attorney 

for Yellowstone County, seeks a writ of certiorari for the review 

of the order of the District Court of Yellowstone County dated July 

16, 1990, finding her in contempt of court for her failure to obey 

a direct order of the court and fining her $200. We affirm the 

finding of contempt by the District Court and refuse the issuance 

of the writ of certiorari. 

The contempt with which we are here involved is a part of one 

of a series of drug cases in Yellowstone County which are referred 

to as IuOperation Snowball.It Hal Turner was the confidential 

informant whose information was a foundation for the Operation 

Snowball cases. 

We will set forth various findings and conclusions of the 

District Court in its Findings of Fact, Conclusions of Law and 

Order, dated July 16, 1990. We have carefully reviewed the 

transcripts before us of the hearings before the District Court, 

as well as the "intake interviewuu of Mr. Turner, which demonstrate 

that the findings of fact of the District Court are based upon 

substantial evidence. By order dated February 28, 1990, the 

District Court set evidentiary hearings for Tuesday, March 13, 

1990, upon the defendant Is Motions to Dismiss and to Produce. That 

order contained the following statement: 

3. That Harold Hanser, County Attorney of 

Yellowstone County and Teresa McCann OtConnor, Deputy 

County Attorney of Yellowstone County appear at said time 

to show cause, if any they may have, why sanctions 
pursuant to 5 46-15-329, MCA. should not be imposed. 

(Emphasis supplied.) 

~ollowing are summaries of findings and conclusions of the District 

Court: Sometime prior to 1987, a drug enforcement unit within 

Yellowstone County's Sheriff's Department was created and the unit 

from time to time conducted joint operations with DEA, a federal 

drug enforcement agency. Sergeant Newel1 of the Sheriff's Office 

was in charge of the drug unit for more than two and one-half 

years. The drug unit used confidential informants. In January 

1989, Hal E. Turner contacted officers and on January 3, 1989, 

Sergeant Newel1 conducted an intake interview which was recorded, 

transcribed into 70 pages, and later signed by Mr. Turner. The 

practice of Sergeant Newel1 was to create as a part of the records 

of the Drug Unit, a file on each confidential informant and to 

place the entire intake statement in that file. Sergeant Newel1 

estimated 12 to 14 intake statements had been taken and that the 

existence of those statements had not been disclosed to the 

Yellowstone County Attorney's office when the "investigative file1' 

concerning each of the cases was delivered to the County Attorney's 

office. He also testified that the decision as to whether or not 

to disclose the existence of the statements was his to make. Mr. 

Turner was used by the Sheriff's Office and DEA as a confidential 

informant in Operation Snowball which resulted in 41 cases being 

filed in state court. The 41 cases listed a "confidential 

informant1' without disclosing Mr. Turner's identity. 

During January 1990, Ms. OIConnor was preparing for the 
Standley trial and Sergeant Newel1 provided her with the 70 page 

Turner statementland told her that it was considered to be an 

intelligence file which they did not wish to have disclosed. Ms. 

OtConnor read the statement and advised Sergeant Newel1 that the 

statement was not discoverable in connection with the Standley case 

because she did not feel the statement contained exculpatory or 

inculpatory information or information which would provide a basis 

for impeachment. 

District Court Finding VII is a key finding: 

VII 

On February 9, 1990, an Omnibus hearing was held in 

consolidated causes, DC 89-281 and DC 89-325, State v. 

Timothy Evenson; OtConnor appeared at the Omnibus hearing 

and participated in the completion and signing of what 

is generally referred to as the Itomnibus Formtt, aprinted 

document entitled ItAction Taken (Omnibus Hearing); among 

other things, the form reflects that the Defendant 

t*reauests and moves for . . . (b) discovery of the names 

of State s witnesses and their statementstt ; further, that 

the Court granted the Defendant's Motion for such 

information; at the time of the Omnibus hearincr, Ot Connor 

knew of the existence of the Turner statement, had a copy 

thereof, but failed to produce it or inform the Court or 

defense counsel of its existence. (Emphasis supplied.) 

The findings of fact are further summarized: After the omnibus 

hearing Ms. OtConnor met with Chief Deputy County Attorney Bradley 

and gave him various information including a copy of the Turner 

statement, with a note which stated in part that Sergeant Newel1 

did not want the interview turned over to defense counsel on the 

Snowball cases. She told him she found no problem with that, there 

was no exculpatory or inculpatory information included which had 

not been turned over. Later on the same day, Mr. Bradley met with 
Yellowstone County Attorney Hanser, and advised him of the Turner 

statement; and they decided to advise all defense counsel in the 

Snowball cases of the existence of the Turner statement and to 

provide a copy to each of the district judges of Yellowstone 

County. On February 23, 1990, motions to produce the statement and 

to dismiss several informations were filed. With regard to the 

hearing on March 13 and 14, 1990, the findings further stated: 

Hanser testified he did not know of the existence 

of the statement until the afternoon of February 9, 1990, 

and had he been aware of it, he would have put defense 

counsel on [notice] of its existence and asked the Court 

to examine the statement and determine what part, if any, 

should be released to the Defendant in each specific 

case; Bradley testified that he felt, as "1, a 

prosecuting attorney could not make a determination of 

what should or should not go to defense counsel11 and that 

"The best thing to do was to let defense counsel have a 

shot at itN and this is why he provided each of the five 

(5) Judges with a copy of the statement and notified 

defense counsel of its existence; . . . OIConnor 

testified that it was her job to decide whether or not 

defense counsel should even be made aware of the 

existence of intelligence statements; further, that she 

did not turn over the statement because Officer Newel1 

had asked her not to and she had given him an opinion 

that it did not need to be. 

The court found that no evidence had been submitted that any 

portion of the Turner statement should not be furnished, and 

entered its Conclusions of Law which provided that the defendants 

were entitled to the production of the entire unedited Turner 

statement pursuant to 1 46-15-328, MCA, and to the Order of the 

Court contained upon the Omnibus Form directing lldiscovery of the 

names of the Statels witnesses and their statements.I1 The court 

further concluded that the fact that County Attorney Hanser and 

Deputy County Attorney Hoefer were unaware of the existence of the 
Turner statement constituted a showing why the sanctions provided 

by 5 46-15-329, MCA, should not be imposed upon them. With regard 

to Ms. OIConnor, the court concluded: 

5. The failure of Deputy County Attorney Ov Connor 

to disclose the existence of the Turner statement to the 

Court at the time of the Omnibus hearing when she had 

been issued a direct order by the Court to do so, as part 

of the action taken at the Omnibus hearing constitutes 

a contempt of the Court, as set forth in 3-1-501 (1) (e) , MCA; that as punishment for her contempt, a fine of Two 

Hundred and No/lOOths Dollars ($200.00) should be imposed 

upon Deputy County Attorney OvConnor. 

As a result the court ordered that Ms. OvConnor was found in 

contempt of court for her failure to obey a direct order of the 

court, a fine of $200 was imposed and she was directed to pay the 

fine to the Clerk of the District Court within five days from July 

16, 1990. She has not paid that fine. 

In its memorandum the District Court discussed the history of 

discovery in criminal cases and pointed out that 5 46-15-322, MCA, 

as adopted in 1985 stated in pertinent part: 

Disclosure by prosecution. (1) Upon arraignment in 

district court or at such later time as the court may for 

good cause permit, the prosecutor shall make available 

to the defendant for examination and reproduction the 

following material and information within his possession 

or control: 

(a) a list of the names and addresses of all persons 

whom the prosecutor intends to call as witnesses in the 

case-in-chief, tosether with their relevant written or 

recorded statements; (Emphasis supplied.) 

The court further referred to the protective order provisions of 

5 46-15-328, MCA, as adopted in 1985, which provide: 

Excision and protective orders. (1) Upon a motion 

of any party showing good cause, the court may at any 

time order that disclosure of the identity of any witness 

be deferred for any reasonable period of time, not to 
extend beyond 5 days prior to the date set for trial, or 

that any other disclosures required by 46-15-321through 

46-15-329 be denied, deferred, or regulated when it 

finds : 

(a) that the disclosure would result in a risk or 

harm outweighing any usefulness of the disclosure to any 

party; and 

(b) that the risk cannot be eliminated by a less 

substantial restriction of discovery rights. 

(2) Whenever the court finds, on motion of any 

party, that only a portion of a document or other 

material is discoverable under 46-15-321 through 46-15- 

329, it may authorize the party disclosing it to excise 

that portion of the material which is nondiscoverable and 

disclose the remainder. 

(3) On motion of the party seeking a protective or 

excision order or in submitting for the court s 

determination the discoverability of any material or 

information, the court may permit him to present the 

material or information for the inspection of the judge 

alone. Counsel for all other parties are entitled to be 

present when such presentation is made. 

(4) If the court enters an order that any material 

or any portion thereof is not discoverable under 46-15- 

321 through 46-15-329, the entire text of the material 

must be sealed and preserved in the record in the event 

of an appeal. 

The District Court pointed out that the test established by the 

Legislature is a finding by the Court that. the disclosure would 

result in a risk or harm outweighing any usefulness of the 

disclosure to any party. 

With regard to the sanction of contempt, the District Court 

discussed the matter of sanctions at some length in its memorandum. 

A key paragraph setting forth the reasons for the conclusion that 

there was intentional and purposeful conduct on the part of Ms. 

OfConnor is the following: 

Notwithstanding the provisions of section 46-15- 

328, MCA, which establishes a procedure whereby the 

prosecution or the defense may apply to the Court for a 

Protective Order prohibiting the disclosure of the 

contents of a document or other material, Deputy County 
Attorney OIConnor testified that it was her function to 

decide whether or not the statement should be released 

to defense counsel. (Transcript p. 107, 11. 1-10). The 

testimony of Deputy County Attorney OVConnor, and the 

lack of any evidence that she failed to disclose the 

existence of the statement through inadvertence or 

oversight, led the Court to the conclusion that she 

purposely and intentionally disobeyed a direct Order of 

the Court to provide defense counsel with a copy of all 

statements of the witness Turner. 

The District Court then referred to 1 46-15-329, MCA, adopted in 

1985, which states: 

Sanctions. If at any time during the course of the 

proceeding it is brought to the attention of the court 

that a party has failed to comply with any of the 

provisions of 46-15-321 through 46-15-329 or any order 

issued pursuant to 46-15-321through 46-15-329, the court 

may impose any sanction that it finds just under the 

circumstances, including but not limited to: 

(1) ordering disclosure of the information not 

previously disclosed; 

(2) granting a continuance; 

(3) holdinq a witness, party, or counsel in 

contempt; 

(4) precluding a party from calling a witness, 

offering evidence, or raising a defense not disclosed; 

or 

(5) declaring a mistrial when necessary to prevent 

a miscarriage of justice. (Emphasis supplied.) 

The court next referred to § 3-1-501, MCA, which in relevant part 

provides : 

What acts or omissions are contempts. (1) the 

following acts or omissions in respect to a court of 

justice or proceedings therein are contempts of the 

authority of the court: . . . (e) disobedience of anv lawful judgment, order, or 

process of the court; 

Pertinent to the foregoing is the penalty provision set forth in 

§ 3-1-519, MCA, which states: 

Penalty. Upon the answer and evidence taken, the 
court or judge must determine whether the person 

proceeded against is guilty of the contempt charged. If 

it be adjudged that he is guilty of the contempt, a fine 

may be imposed on him not exceeding $500 or he may be 

imprisoned not exceeding 5 days, or both. 

Also pertinent is 5 3-1-523, MCA, which states in pertinent part: 

Judgment and orders in contempt cases final. The 

judgment and orders of the court or judge made in cases 

of contempt are final and conclusive. There is no 

appeal, but the action of a district court or judge can 

be reviewed on a writ of certiorari by the supreme court .. . 

The District Court concluded that the facts in the present case are 

similar to those in Matter of Graveley (1980), 188 Mont. 546, 614 

P.2d 1033. The District Court pointed out that not only did Deputy 

County Attorney OvConnor directly violate an order of the court, 

but her failure to disclose the existence of the statement deprived 

the defendants of the opportunity to exercise their statutory right 

to obtain all witness statements unless the State could make a 

showing that ~vdisclosure would result in a risk of harm outweighing 

any usefulness of the disclosure to any party." 

This Court has been furnished with transcripts of the hearings 

on the motions before the District Court and has received the 

benefit of extensive briefs on the part of Ms. OvConnor, the 

District Court, and the Attorney General's Office. The Court has 

concluded there is no necessity for the issuance of a writ of 

certiorari, which is described in our statutes as a writ of review 

(5 27-25-101, MCA.) The Court has concluded no hearing is 

required. 
I 

The Attorney General contends this is a constructive criminal 

contempt proceeding, that due process standards were not followed 

because Ms. OIConnor was not advised that she was charged with 

contempt, and that there was a failure to prove the appropriate 

mental state required for a criminal contempt. Ms. OIConnor makes 

a similar argument. 

The District Court held that a contempt had been committed 

under the provisions of S 3-1-501(e), MCA. That is not by 

definition a criminal contempt proceeding. It is true that under 

1 3-1-519, MCA, the court has the power upon a judgment of contempt 

to impose a fine not exceeding $500 or to imprison a person not 

exceeding 5 days, or both. We point out that 5 45-7-309, MCA, 

provides that a person commits the offense of criminal contempt 

when he knowingly engages in various defined conduct. The District 

Court did not proceed under 1 45-7-309, MCA. 

We do not find it necessary to determine whether or not the 

present order of contempt could be classified under any theory as 

a criminal contempt. We conclude that regardless of the 

classification of the contempt, due process standards were met in 

the present case. As previously quoted, the order of February 28, 

1990, advised Ms. OIConnor that she was to appear to show cause, 

if any she may have, why sanctions pursuant to 5 46-15-329, MCA, 

should not be imposed. As quoted, S 46-15-329, MCA, provides for 

the sanction of contempt where there has been a failure to comply 

with disclosure required by the preceding statutes. That notice 

is adequate for due process purposes to advise Ms. OIConnor of the 
charges against her and to give her a reasonable opportunity to 

meet the charges by way of defense or explanation. In addition, 

the transcript demonstrates that County Attorney Hanser and Deputy 

County Attorney Hoefer, testified at length and explained their 

thinking with regard to full disclosure. Ms. OIConnor also 

testified at length and explained her thinking in some detail. 

Her explanation contradicted the testimony on the part of both Mr. 

Hanser and Mr. Bradley. They concluded that the Turner statement 

should be furnished. Ms. OIConnor disagreed with that conclusion. 

With regard to a proof of mental state, while the statute in 

question here does not require an action which may be classed as 

a "knowingl1 act, again it is clear from the transcripts and the 

arguments that Ms. O1Connor ably and consistently and at length 

presented her views on the subject of disclosure of the statements. 

She clearly understood her obligations to disclose witness identity 

and statements, and reached her conclusions not to disclose, which 

she still holds. We conclude there is substantial evidence which 

demonstrates knowing conduct on the part of Ms. OIConnor. We 

further conclude there is substantial evidence in the record to 

support the conclusions reached by the District Court regardless 

of whether the burden was upon the State or upon Ms. OIConnor. 

We therefore conclude that Ms. OIConnor received due process. 

I1 

Ms. OIConnor contends that the District Judge has stated the 

issue as whether a deputy county attorney who violates a direct 

court order and the Montana Criminal Discovery statutes is guilty 
of contempt. She points out the answer may be yes if the violation 

was wilful, and then argues that there was nothing which can be 

classed as wilful violation on her part. She argues that because 

the 70 page statement did not even contain the name or any 

discussion of the defendant Evenson, with whom we are concerned in 

the present case, it cannot be classed as a relevant written 

statement. In addition she argues that if there was a violation 

of the omnibus order, there was not substantial evidence to 

demonstrate it was wilful. She last argues on due process 

standards which have previously been considered. 

In Marks v. First Judicial District Court (1989), 781 P.2d 

249, 251, 46 St.Rep. 1804, 1805, this Court stated that in 

reviewing a contempt appeal, this Court's standard of review is 

whether substantial evidence supports the judgment of contempt. 

In Matter of Gravelev, where a $200 contempt was levied against the 

County Attorney and Sheriff, this Court stated that in civil 

contempt proceedings, the type, character and extent of punishment 

rests in the court's discretion as measured by the showing made and 

that in light of the findings made and the evidence supporting the 

findings, the district court was justified in assessing a sum of 

$200 against each of the petitioners. 

In a directly comparable manner, we conclude that in the 

present case, the findings made by the District Court were 

supported in all instances by substantial evidence, and that the 

District Court was justified in assessing $200 as the fine under 

5 3-1-519, MCA and 3-1-501, MCA. 
In view of the extended argument on the part of Ms. OIConnor 

that she cannot be held responsible for her conduct because she did 

not wilfully violate the statute requiring disclosure by her of the 

statements to defense counsel and consideration by the District 

Court, we refer to a portion of the transcript of her own 

testimony. In response to cross-examination by counsel, Ms. 

OtConnor, when asked if the 70 page document was a witness 

statement, answered by stating that her position was that the 70 

page document was not an investigative statement. In response to 

questioning from the judge Ms. OIConnor pointed out that she would 

not concede that the 70 page statement was a witness statement 

within the meaning of the discoverable witness statutes. Upon 

further extended examination by the judge, she stated that under 

5 46-15-322, MCA, which requires a prosecutor to make available to 

the defendant all persons to be called as witnesses with their 

relevant written statements, her position was that it is up to the 

prosecutor to make the determination as to which statements are 

relevant and which are not. The court then attempted to have Ms. 

OIConnor indicate whether or not she thought the court had the 

power to make the ultimate determination on this issue, and Ms. 

O1 Connor chose not to take that position. She also pointed out 

that her view was that it depended on whether the witness statement 

was "investigative or intelligence in nature." She also pointed 

out that it was the State (the prosecution and sheriffls office) 

which had the obligation to determine whether the statement met 

that standard. 

13 
As previously mentioned, in their testimony, both County 

Attorney Hanser and Chief Deputy County Attorney Bradley concluded 

that under the statute and also under the open file policy of the 

County Attorney's office, the statement in question should be 

disclosed to defense counsel and to the court with a request that 

the court determine whether or not some portions of the statement 

should not be disclosed under the provisions of 5 46-15-328, MCA. 

Ms. 08Connor's position is set forth clearly in the following 

quotation from the transcript of her testimony: 

Q If I remember Mr. Bradley's testimony 

correctly, it was his opinion that at the time those 

persons were charged, whatever interview given by Hal 

Turner which may have been part of an intelligence file 

at that time became part of the investigative file. Do 

you disagree with that? 

A Yes, I disaqree with that. 

Q On what bases? 

A I don't think that a statement which--that a 

document which belongs to an intelligence file somehow 

magically becomes part of an investigative file, unless 

its substance so dictates. 

Q Then we set to the question of who decides what 

the substance is. 

A In this particular instance with reqard to the 

Standley case, sir, I did. 

Q Do you believe that is properly within your purview to make that decision? 

A Yes. 

Q As to whether information contained in an 

interview is inculpatory or exculpatory or grounds for 

impeachment? 

A I think that I am responsible to make such 

decisions with an understanding that if I make them 
incorrectly sanctions will be made against the 

government. (Emphasis supplied.) 

As best this Court can determine, this appears to be the key point 

of Ms. OtConnor's argument. She contends she cannot be held in 

contempt because she had a good faith belief there was no reason 

to disclose the Turner statement. As mentioned, both the County 

Attorney and Chief Deputy County Attorney disagreed with her. It 

is clear that she still disagrees with both of them. It is also 

clear from her testimony and her arguments that she does not 

concede that the District Judge was correct when he concluded that 

the statute required of the prosecution that the information be 

furnished to defense counsel and submitted to the court for 

determination as to whether disclosure was required. We have 

reviewed the 70 page Turner statement and agree with the 

conclusions of the District Court and the County Attorney and Chief 

Deputy County Attorney that disclosure was necessary. 

The District Court expressed its concern as to the procedure 

in 12 to 14 other criminal cases where intake interviews of 

confidential informants were not disclosed to the county attorney, 

to the defense counsel or to the court. In a similar manner, the 

court expressed its concern that even though the omnibus order 

required disclosure of the confidential informant and the witness 

statement, even though the open file policy of the Yellowstone 

County Attorney's office required such disclosure, and even though 

the statutes required disclosure, Ms. O'Connor still contended that 

she was not required to disclose the existence of the Turner 

statement to defense counsel or to the court. 

15 
The ultimate responsibility for the determination of 

nondisclosure to the defendant rested in the District Court and not 

in Ms. OtConnor. The District Court concluded that Ms. OtConnorts 

failure to make the Turner statement available constituted contempt 

of court and assessed the $200 fine. We affirm that conclusion and 

the action of the District Court. 

We conclude there is no necessity for the issuance of a writ 

of certiorari or writ of review. This matter is remanded to the 

District Court for such further proceedings as it may require. 

\ 

We Concur: H 

I w I I I' 

Chief Justice 

\ 

Justices 

Justice John C. Sheehy did not participate.