NO. 88-609

IN THE SUPREME COURT OF THE STATE OF MONTANA
1989

THE STATE OF MONTANA,
Plaintiff and Respondent,
-vsMICHAEL DUANE STILLINGS,
Defendant and Appellant.



### -. APPEAL FROM: ~istrict Court of the Eighth ~udicial ist trick, ;-I %, In and for the County of Cascade, n

### - -i-f The Honorable Joel G. Roth, Judge presiding. --
COUNSEL OF RECORD:
+. : For Appellant:

. L.- ., ,- i 

### - ( - A- E. June Lord, Great Falls, Montana

For Respondent:

Hon. Marc ~acicot, Attorney General, Helena, Montana John Paulson, Asst. Atty. General, Helena Patrick Paul, County Attorney, Great Falls, Montana Steven Hudspeth, Deputy County Attorney, Great Falls, Montana

Filed: Submitted on briefs: Aug. 3, 1989
Decided: August 24, 1989Chief Justice J. A. Turnage delivered the Opinion of the Court. Defendant Michael Duane Stillings appeals his conviction by the District Court of theEighth JudicialDistrict,Cascade County, for committing perjury by making two, inconsistent, material statements under oath in an official proceeding in violation of section 45-7-201(6), MCA (1987). We affirm. The defendant raises the following issues on appeal. Did the District Court err in denying thedefendant's motion todismiss the information when the District Court found that either: 1) the defendant's act of perjury under section 45-7-201(6), MCA (1987), was not complete, and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with this previous testimony; or, in the alternative 2) under section 45-1-206(I),MCA (1987),thedefendant's outof-state incarceration tolled the statute of limitations on his first statement so that both statements fell within the five year statute of limitations? On the night of February 23, 1971,Vicki Renville was raped and bludgeoned to death in theWadsworth Park area of Great Falls, Montana. During the resulting murder trial, Michael Stillings testified on October 4, 1971, that he and Fred Lee Perry raped Renville and that when she threatened to "rat," Perry repeatedly struck Renville on the head with a tire iron. Perry was subsequently convicted of second degree murder. See State v. Perry

(1973), 161Mont. 155, 505 P.2d 113 (affirmingthe District Court decision). Stillings pled guilty to the same charge and received a sixty-year sentence with ten years suspended. Stillings was incarcerated in the Montana State Prison on November 29, 1971. On December 6, 1971,he was transferred to the California prison system under the provisions of the InterstateCorrectional Compact Agreement to prevent his confinement in the same prison as Perry. California paroled Stillings to Washington

on August 18, 1978. On February 14, 1979, Stillings was arrested and subsequently convicted of armed robbery in Washington. After he served five years of his thirty-five year sentence, Washington paroled ~tillingsto Montana on detainer on April 20, 1984. Montana revoked Stillingsl parole on his second degree murder charge returning him to the Montana State Prison. In 1986 theCaliforniaprison system transferred Perry to Deer Lodge placing Stillingsand Perry in the sameprison for the first time. Stillings soon indicated that he would recant his previous testimony against Perry,and Perry applied fora new trial. During the new trial hearing on July 24, 1987, Stillings disavowed his 1971testimony against Perry and statedunder oath thathe, and not Perry, had killed Vicki Renville. The trial court, however, did not find Stillingsltestimony credible and refused to grant Perry

a new trial. See State v. Perry (Mont. 1988), 758 P.2d 268, 45 St.Rep. 1192 (affirmingthe District Court decision). On September 25, 1987, the Cascade County Attorney filed an information against Michael Stillings charging that Stillings committedperjury bymaking two, inconsistent, material statements under oath in violation of section 45-7-201,MCA (1987)

# . Stillings filed a motion to dismiss the information on the grounds that the statute of limitations had run. The District Court denied the motion. Defendant Stillingsthen filed an application for writ of supervisory control on the same grounds and the Montana Supreme Court denied the petition. In the ensuing bench trial, the District Court found the defendant guilty and sentencedhim to ten years for perjury and ten years as a persistent felony offender. The District Court also revoked the ten-year suspended sentence on Stillings' second degree murder conviction and ordered that allsentences run consecutively. Defendant Stillings now appeals his perjury conviction.

Did theDistrict Court err in its alternative finding that the defendant's act of perjury under section 45-7-201(6), MCA (1987),

was not complete,and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with his previous testimony? Montana's perjury statute provides that: A person commits the offense of perjury if in any official proceeding he knowingly makes a false [material] statement under oath 

# . . . . Section 45-7-201(1), MCA (1987). The statute further provides that: Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within theperiod of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for theprosecution to prove which statementwas false but only that one or the other was false and not believed by the defendant to be true. Section 45-7-201(6)

### , MCA (1987)

# . Thedefense in this case argues that by theplain language of the inconsistent testimony provision,both statementsmust be made within the five year statute of limitations for felony crimes. Stillingscontends thatbecause seventeenyears lapsedbetween his statements, the statute of limitationshad runbefore theprosecution filed its information against him. We disagree. The statuteof limitationsdid not runbecause the statute was triggered only by Stillings' second statement which completed thecrime of perjury under section 45-7-2Ol(6), MCA (1987). The statute of limitations clearly states when the time limitation begins to run: A prosecution for a felony must be commenced within 5years after it is committed. Section 45-1-205(2) (a)

### ,MCA (1987)

# . (Emphasis added.) An offense is committed either when every element occurs or, when the offense is based upon a continuing course of conduct, at the timewhen the course of conduct is terminated. Time starts to run on the day after the offense is committed. Section 45-1-205(5), MCA (1987). Commission of the crime of perjury by making inconsistent, material statements under oath requires at a minimum that the accusedhasmade two conflicting statements. When a witness makes conflicting statements under oath, it is axiomatic that one is false so long as all other elements of perjury can be satisfied. This statute expedites prosecution by eliminating the needless requirement of proving which statement is false. The intrinsic falsity of the accused's testimony arises, and the crime is complete,only when the inconsistenttestimonyoccurs. The statute of limitations, therefore, cannot begin to run at least until the defendant has completed the crime by making the indispensable, second statement. The issue raised by the defendant accentuates an underlying contradiction inthe inconsistenttestimonystatute. A crimeunder this statute cannot be completed, and the statute of limitations does not begin to run, until the defendant makes at least two allegedly inconsistent statements. However, the statute declares that "both [statements must be] made within the period of the statute of limitations.~~Section 45-7-201(6)

### , MCA (1987)

# . BY includingthe first statement, which might be entirelytrue,withintheperiod of limitations, this clausewould trigger the statutory period before any crime has been committed. The statute entices theunscrupulouswitness to falselyrecant five-year-old, credible testimony and insulate himself against prosecution under this statute. We invite the legislature to consider an appropriate remedy to this problem. In the present case, application of this questionable statutory clause would still not have provided grounds for barring the prosecutionlsinformation.

Did the District Court err in its alternative finding that under section45-1-206(1), MCA (1987),thedefendant'sout-of-state incarceration tolled the statute of limitations on his first statement sothatboth statements fellwithin the fiveyear statute of limitations? Section 45-1-206, MCA (1987), provides that: The period of limitationdoes not run during:

(1) any period in which the offender is not usually and publicly resident within this state or is beyond the jurisdiction of this state 

# . .

# .. Thedefendant argues that during the time hewas incarcerated in California on his second degree murder charge, he was still underMontana jurisdiction. While this contentionmay be true,we make no determination on this issue since it is not relevant. Section 45-1-206(1) is written in the disjunctive and either clause is sufficient in itself to toll the statute of limitation. Failure of the criminal defendant to be llusually and publicly resident within this statewwill itself interrupt the running of the statutory period regardless of jurisdiction. The statute is

- also tolled when thecriminal defendant is "beyond the jurisdiction of the staten regardless of his place of residence.The Criminal Law Commission Comments on section 45-1-206 are also written in the disjunctive and note that: subsection (1) tolls the statute for the offender who is absent from this state, or absents himself from his usual place of abode and makes some effort to conceal himself. Again, each clause is sufficient to toll the statutory period. Absence from the accused's usual abode coupled with attempts at concealment will toll the statute. Absence from the state will, independently, interrupt the statutoryperiod. We thereforehold that the mere absence of the criminal defendant from the state is sufficient to toll the statute of limitations. Themajority of statesinterpreting similar statutes havealso concluded that a criminal defendant's mere absence from the state is sufficient to toll the statute of limitations. See State v. Nelson (Ariz. App. 1988), 755 P.2d 1175; State v. Wright (Utah 1987), 745 P.2d 447; State v. Houck (Kan. 1986), 727 P.2d 460; State v. Ansell (Wash. App. 1984), 675 P.2d 614; State v. Azzone (Minn. 1965), 135 N.W.2d 488; State v. Lupino (Minn. 1964), 129 N.W.2d 294; Grayer v. State (Ark. 1962), 353 S.W.2d 148; Couture

v. Commonwealth (Mass. 1958), 153 N.E.2d 625; Traxler v. State

(Okla. Crim. App. 1953), 251 P.2d 815. A number of states have applied this principle to cases similar to that of Stillings. In the seminal case of People 

### v. Carman (Ill. 1943), 52N.E.2d 197,the Illinois SupremeCourt first interpreted the statutory exclusion for periods during which the defendant was "not usually and publicly resident within this state. The court defined "residentNby its common meaning and held that the statuteof limitationswas tolled during theMissouri incarceration of the defendant even though he remained a legal resident of Illinois. Carmen, 52 N.E.2d at 199-200. Similarly,Stillings' incarceration in Washington on armed robbery charges tolled the statute of limitations. The fact that Stillingslwhereaboutswere knowntoMontana law enforcement officials throughout his absence does not change the rule. The Washington Court of Appeals held that the absence from the stateof a first-degreestatutoryrapedefendantwas sufficient to toll the statute of limitations even though the defendant's whereabouts were easily determinableby lawenforcement officials. State v. Ansell (Wash.App. 1984), 675 P.2d 614, 617. The ability ofMontana to force the return of Stillings at any point during his time in California and Washington does not affect the tolling of the statutory period. The Washington courts held that the statute was tolled on a first-degree robbery defendant incarcerated in Oregonwho was available for extradition under the InterstateAgreement on Detainers. State v. Newcomer (Wash. App. 1987), 737 P.2d 1285, 1290. Similarly,Montana's maintenance of some control of Stillings duringhis California incarceration for hisMontana murder conviction did not overcome the tolling of the statute. In an analogous

casetheKansas SupremeCourtheld that a criminal defendant voluntarilyparoled toArkansas from the Kansasprison system and under the control of Kansas parole officials was not in the custody of the State of Kansas and therefore the statute tolled during his absence. State

### v. Houck (Kan. 1986), 727 P.2d 460, 465-66. In each of these cases, the principle is the same as that which we adopt today;mere absence from the state is sufficient to toll the statute of limitations for a criminal defendant. If the statuteof limitations were applied toStillings'first statement,itwould havebeen triggeredbyhis testimony on October 4, 1971. The defendant left Montana for incarceration in ~alifornia on December 6, 1971, tolling the statutory period at twomonths. He returned to prison in Montana on April 20, 1984, restarting the statute of limitations which ranuntil theprosecution filed its information on September 24, 1987--a period of three years and fivemonths. The statute of limitations, therefore, ran for threeyearsand sevenmonths and fellwell within the five year statutoryperiod. We find that the District Court was correct in both of its alternative holdings. Stillingslmere absence from the state tolled the statute of limitations. Even if the statutory period had not been tolled, it couldnot have begun to run until Stillings made amaterial statement under oath that was inconsistent with his previous testimony. Affirmed

# .

We concur:

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Justices