No. 13476 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976



### THE STATE OF MONTANA, Plaintiff and Appellant,

-vs

# - JACK Me SCANLON, Defendant and Respondent.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant

### : Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana Thomas Budewitz argued, Assistant Attorney General,

Helena, Montana Albert Melloling argued, SpecialAssistantAttorney

General, Helena, Montana For Respondent

### : Donald Garrity argued, Helena, Montana

Submitted: October 21, 1976

Decided

### :

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# $a197~

% Filed: 

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## 01976

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. The state appeals from dismissal of eighteen counts of perjury returnedby the grand jury against Jack

### M. Scanlon,defendant. The grand jury in Lewis and Clark County initiated an investigation into defendant's Workers' Compensation related activities. The foreman of the grand jury stated: 

## "*

# ** Pursuant to this inquiry, the Grand Jurywill examine the activities of Jack Scanlon in his representation of claimants before the Industrial Accident Board and theWorkmen's CompensationDivision during the period betweenmid-1969 and mid-1973 and thereafter. "This inquirywill include a review of each step of Mr. Scanlon's professional representation, commencing with initiation of the attorney-client relationship and continuing through the conclusion of such representation, including any related third-party litigation involving subrogation rights

# ." part of this investigation a number defendant's clients were called and testified to the manner the attorneyclient relationshipwas initiated. After this testimony, the grand jury requested the attorney general to filea complaint with the Commission on Practice charging defendantdid solicit without legal cause or permission, the individualswho testified. Defendant was called to testify before the grand jury and refused to answer questions posed tohim asserting his right against self-incrimination. Thereafter, in an effort to find where defendant received the information,defendantwas granted immunity against prosecution except prosecution for contempt and perjury. He testified for two days before the grand jury,denying he solicited these persons and offered explanation for the manner inwhich they became his clients. Following defendant's testimony therewas further inquiry and some clients were recalled. Some people,whom defendant said referred these clients to him,were

### called to testify. The grand jury returned anindictment charging eighteen counts of perjury. Defendant filed a motion to dismiss these charges,which

was granted. The state appeals. We summarize the issues presented to be: 1. Whether the evidentiary standard required for proof of perjurywas met? 2. Whether the allegedly perjured testimonywas material? 3. Whether off-the-record statementsmade to the grand jury were grounds for dismissal? 

### 4. Whether therewas sufficient prosecutorialmisconduct to warrant dismissal of the indictment? 

### 5. Whether the admonitionof secrecy delivered to the grand jurywitnesseswas grounds for dismissal? First,we consider the strict evidentiary standard required for the proof ofperjury. ThreeMontana statutes are applicable: Section 94-7-202(7), R.C.M. 1947,provides: "No person shall be convicted of an offense under this section where proof of falsity rests solelyupon the testimony of a single person other than the defendant.'I Section 93-401-1,R.C.M. 1947,provides: "The direct evidence of one witnesswho is entitled to full credit is sufficient for proof of any fact, except perjury and treason." Section 93-1401-2,R.C.M. 1947,provides: "Perjury and treason must be proved by testimony of more than one witness; treasonby the testimony of two witnesses to the same overt act;and perjury by the testimony of twowitnesses, or one witness and -. 

### corrobora- - 

### tinp;circumstances." (Emphasis added.) The basis forunusually stringent evidence requirements is set out in an article in 19 UCLA LawReview 638, 642,643 entitled"Perjury and Related Offenses Under the Proposed California Criminal Code." That same article points out atp. 645, that Tentative Draft No. 6 of theModel Penal Code on this point reads: "Corroboration. Proof of guiltbeyond a reasonable doubt shall suffice for conviction under this section as inother criminal cases, without special requirement of two witnesses or corroborating circumstances.

"[Alternate,rejected 

### -- - -- by the council: No person shall be convicted of an offense under this Sectionwhere proof of falsityrests solelyupon contradictionby testimony of a person other than the defendant.]" The official draft of theModel Penal Code, which served as the

basis for section 94-7-202(7), R.C .M. 1947, used the alternate provision. InMontana Criminal Code, 1973, Annotated, Prof.

William F. Crowley

# - Editor, atpage 293 the annotator points out: "The common law rule that falsehood be established by two witnesses 

### is adopted inpart by subsection 

### (7). Atthe common'law this rulewas adopted todealwith the problem of an oath against an oath. The modern rationale 

### is a policy determination based on a balancing of the need for protection of witness and the need to maintain the sanctions for false testimony. In adopting the requirement of more than one witness Montana has followed the majority of states in affording additional protection to thewitness at the possible cost of being unable toconvict an apparent perjurer.

# ** *I1 

### As noted above, the standard of proof required inMontana under the new code section 94-7-202(7), R.C.M. 1947, requires that the proof of the falsity of a statement must be more than the contradiction testimony of a person other than the defendant. The legislature recently made this policy determination and despite the contrary ruleurged by the state, this is the rule inMontana. The exact requirements of this evidentiary rule inperjury

cases are apparent from an examination of the California cases interpreting the section of the California Civil Code, identical to

### Montana's section 93-1401-2,R.C.M. 1947. In an article entitled "Proof of Perjury: The TwoWitness Requirement", 35 Southern California Law Review 86,97, it is stated:

II

### In summary, the California attitude is,and remains, that direct testimony of at least onewitness must always be introduced to prove the falsity of the statement set forth in the indictment; circumstantial evidence alonewill not support a perjury conviction." In Peoplev. Roubus, 53 Cal.Rptr. 281, 417 P.2d 865, 866, 867, the California Supreme Court, sitting InBank, outlined this evidentiary requirement: "Perjurymust be proved by the testimony of two witnesses, or of onewitness and corroborating circumstances.

# ** * This statutoryprovisionhas been interpreted as prescribing not only the amount but also the kind of evidence necessary to support a perjury conviction.

# ** * Direct, as distinguished from circumstantial, evidence of the falsity of the defendant's testimony by at least onewitness is generally required.

# *** This does notmean that there must be a denial in the very words of the defendant's testimony

# **

# * but that there muet be testimony by at least one witness furnishing direct evidence of facts contrary to,or absolutely incompatible or physically inconsistentwith, that sworn to by the accused

# ***, Evidence that establishes facts fromwhich the falsity of an alleged perjured statement may or may not be inferred is insufficient under the direct evidence rule.

# *** "The rule requiringproof of falsityby direct evidence has been criticized.

# * *

# * However, this requirementwas early established in this stateby decisions construing our statutory provision. 

### It is noteworthy that a majority of jurisdictionswhich apply the rule that falsity must be proved by the testimony of two witnesses, or of onewitness and corroborating circumstances, hold that circumstantial evidence alone is generally insufficient to establish falsity.'' An earlyMontana case indicatEs this is the law inMontana
as well, In Statev. 

### Gibbs, 10Mont. 213, 219, 

### 25 P. 289, it is said: "'It is not necessary that there shouldbe two living witnesses in contradiction of the statement of the defendant to justify 

### a confiction of perjury. 

### It is sufficient if, in addition to one directly opposing witness, corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence are proved. 111The Court inGibbs approved this instruction as to proof of perjury:

If'* 

# * * that such act of perjury has been established toyour satisfactionbeyond a reasonable doubt by more than one witness, or that the testimony of such witness has been corroborated upon that point by other facts and circumstances proved on the trial. In otherwords, the direct evidence of one witness alone 

### isnot sufficient to convict of the crime of perjury, unless corroborated by other facts and circumstances proved on the trial.t 11 InGibbs the Court was construing the then equivalent code section to section 93-401-1, R.C.M. 1947. Section 93-1401-2 had not been enacted atthat time. In State

### v. Jackson, 88Mont. 420, 293 P. 309, the Court cited Gibbs as authority of the requirement that perjury must be proved by the testimony of two witnesses, or one witness and corroborating circumstances indicating that thiswas the law even prior tothe passage of section 93-1401-2, R.C.M. 1947. A subsidiary question tobe determined regards the nature of the corroborating circumstances that must be proved. The rule in *California,that the stateargues we should adopt, is stated inPeople v. Casanova, 54 Cal.App. 439, 202 P. 45,47:

'I* 

# * *The statuterespecting the quantum of evidence necessary inperjury cases

### willbe satisfied, if there be the testimony of one witness to facts that are absolutely incompatible with the innocence of the accused, corroborated by circumstances which, of themselves and independently of such directly inculpatory evidence, tend, with a reasonable degree of certitude, to show that the accused 

### isguilty as charged." See also: People v. Pustau, 39 C.A.2d 407, 103P.2d 224,228. the Court said that "corroborating circumstances sufficient to turn the scale and overcome the oath of the defendant and the legal presumption of his innocence" are allthat 

### is required. InPeople v. Todd, 9 C.A.2d 237, 49 P.2d 611, 614, it ispointed out:"It 

### is alsowell settled that motive and design tocommit a crime, if.proved, may be considered a quilty circumstance 

# **

# * and consequently maylservelegally as corroborative evidence; and in thisbehalf it has been repeatedly held thatwhere, ashere, it 

### is claimed that several offenses have been cormitted as part of one scheme or plan, allof the same general character, tending to the same common end, evidence thereof may be received to show the process or motive and design to commit the particular offense with which the accused 

### is charged, and as tending to show logically that the particular offense forwhich he 

### isbeing triedwas part of such common scheme." The second issue involves the requirement that the alleged perjured statement be material. The Montana statute, section 94-7- 202(3), R.C.M. 1947, provides: "Falsification 

### ismaterial, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It 

### isno defense that the declarant mistakenly belidved the falsification to--be immaterial. Whether a falsification 

### is material ina given factual situation 

### is a question of law." The Commission Comment points out: "The proposed definition of 'materiality' in subsection 

### (3) does not differ substantially from that givenby prior law. " In Statev. Hall, 

### 88 Mont. 297, 304, 292 P. 734, the Court said: 

# "** *Also it may be conceded that the general rule 

### is that anything so connected with the matter atissue as tohave a legitimate tendency toprove or disprove some material issue by givingweight or probability to, ordetracting from, the testimony of a witness, 

### ismaterial 

# * ** and that, if evidence 

### is circumstantially material, it 

### is sufficient to sustain a perjury charge." The test for materiality as set out by the statute 

### isnot particularly difficult tomeet, it requires only that inthe actual factual situation involved would itbe reasonable to find that the defendant's statement, if believed, could have altered the course of the investigation. While it 

### is true that a false answer toa trivial or irrelevant question does not inand of itself hamper the £unctioningof the state, the court, whose integrity depends on the truth, has a special interest in seeing those who do not tellthe truth, whether to a relevant or irrelevantmatter, do not go unpunished. See section 94-7-203, R.C.M. 1947, which provides for the punishment of a false statement inan officialproceeding whether that statement was material ornot, and makes such false statement a misdemeanor. We note here thatnearly allcases citedby both parties involve a post-trial, not post-indictment determination of these required elements. We are consideringhere perjury counts before

a grand jury and not aftera trial. The grand jury statute, section /' 

# (3 

# 95-1&9-(c) , R.C.M. 1947, provides: "The grandjury shall find an indictment when all the evidence before it, taken together, ifunexplained or uncontradicted, woa, in 

### itsjudgment, warrant a convictionby a trialjury

# ." The district court dismissed each of the eighteen counts based on the absence of one of these elements---lack of direct evidence as to the falsity of the statement, lack of corroboration

or lack of materiality. Several of the counts against defendant

arose out of transactions wherein defendant testified the clients

were referred tohim by an uncle and aunt, Mr. and 

### Mrs. Richard Mullins orby a 

### Mr. and 

### Mrs. Herman Meyers, long time family friends. Atthe time defendant testified allof these people were deceased. The clients who appeared before the grand jury denied ever knowing ank of the named people, however, these deaths prevented the state from getting thenecessary direct evidence required to prove perjury. The district court dismissed these counts for lack of direct evidence

as to the falsity and these dismissals were proper. We have carefully reviewed allother counts, and hold that with the exception of counts 9 and 10, they should have been dismissed.The dismissal of those counts comes from the fact they were not supported by direct evidence of the falsity of the defendant's statements or due to &lack of sufficient proof to offset defendant's failure toremember certain facts. A summary of count 9. charges that JackM. Scanlon, falsely testified that Grace A. Rieker first contacted him on the telephone, when in truth and facthe knew that he had instigated the telephone conversation with claimant for the purpose of initiating a clientattorney relationship; and that he so testified to deceive and frustrate the grand jury in 

### its investigation contrary to section 94-7-202, R.C.M. 1947. A summary of count 10 charges that defendant falsely testified that prior to the telephone call from claimant he had

L never heard of the claimant nor the fact that shewas injured,

/ while in truth and facthe knew the claimant and that she had been injured prior to ever talking toher, and he so testified for the purpose of deceiving and frustrating the grandjury contrary to section 94-7-202, R.C.M. 1947. When asked how he came torepresent 

### Mrs. Grace Rieker and her claims before the Industrial Accident Board, defendant in answer to questions testified: 

### "Q. How did she come toknow you? A. 

### I don't know you wi.11have toaskher that. 

### "Q. The firstcontactwith Grace Rieker was by her telephoning you? A. AsI recall, yes. 

### "Q. Let me give you your files, incase you need them torefresh your memory. Did she callyou in your office inHelena? A. As I recall, yes. 

### "Q. What did she say to you? A. She asked me about, as I recall, representingher inher industrial accident claim."Q. Now which claimwas this? A. As I recall, there were two claims. One was fora neck injury, and she called me relative to that?

"Q. Allright. In response toher phone call, what did you do? A. I met with her. "Q. Where? A. InBoulder.

"Q, And who was present? A. I think her husband was, but I am not sure.

Q. Now, thiswas the very firstcontact that you ever had with her, was when she phoned you? A. Asbest I can recall, yes. "Q. And prior toher phoning you, you had never heard of Grace Rieker orher injury or anything else? A. No.

"Q. But, you areconfident that you did not solicitthe attorney-client relationship yourself? A. Yes, I am confident I didn't solicit the attorney-client relationship myself .I1 Mr. Fuller testified as tohis recollection of the Rieker

case indicatinghe and defendant were high school friends and they had kept that relationship going over the years. He said that afterhe had talkedwith investigators of theWorkmen's Compensation investigation team, and just before he testified before the grand jury, he called Scanlon about the Rieker case because itwas one they had asked questions about. He testified: "Q. Well, did you ch~ck with him tomake sure thathis recollection of the Grace Rieker incident was the same asyours? Just tomake sure that inyour own mind that your memory--- A. Xes I did. "Q. So you went through with him how he developed his relationshipwith Grace Rieker in so faras you were concerned? A. The only thing I asked him was related to ifhe recalled that there were two callsmade by me, ifI ever toldhim that, or ifhe had made a phone call from my home."Q. What did he say? A. He said no.

"Q. In otherwords, according towhat Scanlon told you on the phone on March 26th, Grace Rieker made the firstcontact with Scanlon? A. Yes. "Q. And it was either that she phoned him, asking for assistance of an attorney

# --- right? A. Right. "Q. 

# -- or that she came tohis office? A. Right. "Q. But did he tellyou that inno way that he contacted Grace Rieker, telephoned her, or through, talked toher? A. Right .I1 Fuller also testifiedhe did not remember eithergiving the Riekers the phone number of Scanlon; or giving Scanlon the Riekers

## ' number. Mrs. Rieker testifiedbefore the grand jury that she was
a secretary-receptionist atthe Boulder Riyer School and on December 22, 1967, she had slipped down the school steps and received an injury that incapacitated her for a period of time. For that period she received no compensation other than from her sick leave. She returned towork and several years later

on June 18, 1970, shewas injured and from this injury she received compensation on an off and on basis. She testified that during her recovery a Mr. Ron Fuller of Boulder asked her if she

was interested in a lawyer tohelp her get her industrial accidents payments. He told her.hehad a friend thatwas a lawyer and would she likehim tocome to talk to.her. Her testimony on the Fuller callswas: "Q. Asa result of this difficulty, did someone make a contact with you? Did some attorney make a contact with you, either personally or through someone else? A. Yes. "Q. 

### And what was the name of that attorney? A. 

### Mr. Jack Scanlon."Q. Prior to this contact being made to you, had you ever personally known Scanlon? A. No.

"Q. How did this initialcontact regarding Scanlon take place. A. A gentleman by thename of Ron Fuller---

"Q. So Fuller volunteered over the phone that he had a friend who was a lawyer and might be able tohelp you? A. Yes.

Q. Now did you have additional problems with the Industrial Accident Board? A. Yes. "Q. Did you, as a result of those additionalproblems say, hey, 

### I remember that fellow Scanlon and go and call Scanlon? A. No.

I I

Q. Were you contacted a second time? A. Yes. "Q. And who did this? A. 

### Mr. Fuller again. "Q. Allright. And was thiswithout a request on your part? A. Yes.

"Q. Was there anybody else there with Fuller atthat time? A. 

### Yes. "Q. Who was that? A. 

### Mr. Scanlon. "Q. And how do you know that? A. Because Mr. Fuller asked me if I would like to talk tohim on the phone and I said, well, I supposed I could talkwith him about my problem, so I did talk tohim on the phone.

Q. Iday, sowhat did Scanlon say when he got on the phone? A. Told me hewould like tohandle my case, he had heard about it,was interested in it and thought he could help me.

Q. Did he eventually come over to your your house? A. Yes.

"Q. And when he talked with you, did he seem toknow the details of your current accident? A. Yes."Q. How did he learn about the 1967 accident? A. He asked me atthat point if

### I had ever had a previous injury, and I said yes." A1Rieker, husband of Grace, testified corroborating her testimony that afterher 1971injury she was contacted by Ron Fuller about whether she needed a lawyer and they told him

IIno1' 

# . About the second contact by Fuller he testified: "Q. 

# '*** Now, ata later time do you recallbeing home when the telephone rang? A. Yes. "Q. Did you answer or did your wife? A. My wife answered it. "Q. 

# *** Now, after she finished talking on the phone did she tellyou who had called? A. Yes, she did. "Q. And who did she say? A. She said Ron had called and he had put Jack Scanlon on and she talked toJack Scanlon. Q. While you were in thehouse? A. Yes.

"Q. Allright. Did Scanlon eventually come over to your home? A, Yes, he did. "Q. Now, when Scanlon came to your home, did he tellyou what the reason was that he talked to your wife over the phone? A. yes, he did. He saidhe had been incontact with Ron Fuller and they had talked over our case and thought we needed a lawyer, or that he might help. "Q. That he, Scanlon might help? A. Yes. "Q. Okay. So that Scanlon told you he had found out about your wife's claimbefore talking to your wife, from Fuller himself. A. Right. "Q. And that was the reason that he had talked toyour wife on the phone? A. That 

### is correct. "Q. And then later on, ata later time, he came toyour house and he confirmed that to you. A. Yes. 1I As to these counts there are clearly contradictory statements todefendant's testimony that prior to actually speaking toGrace Rieker, he was both unaware of the claimant orher injuries. The necessary corroboration 

### isprovided by the testimony of 

### A1Rieker, whose testimony was that defendant came tothe Rieker home andtold them thatbefore talking toGrace Rieker he had been in contact with Ron Fuller and had talked over the Grace Rieker injuries. Such testimony is adequate to corroborate that he knew of her injury from Fuller, prior to coming to the Rieker home. The remaining three issues do not go to the actual merits of the charges individuallybut they alleged general procedural and prosecutorial improprieties as the basis for the dismissal of allcharges against defendant. These attacks must be viewed against the function of the grand jury. In United Statesv.

I Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L ed 2d 561, 569, the United States Supreme Court pointed out: "A grand jury proceeding isnot an adversary hearing inwhich the guilt or innocence of the accused 

### is adjudicated. Rather, it 

### isan ex parte investigation todetermine whether a crime has been committed and whether criminal proceedings should be instituted against any person.'' These alleged improper procedures do not reach the merits of the individual charges but rather attack the matter inwhich the otherwise valid criminal charges are determined and instituted and are a weak basis for asking for dismissal of the charges. The firstof these 

### is the request that the criminal charges be dismissed for off-the-record statements made by the special assistant attorneys general prior to the returning of the indictment. There was no record of what was saidbecause the statute, section 95-1406(e)(l), R.C.M. 1947, requires only that the testimony of witnesses be recorded. This session, characterized by the district court as a "prep session", could not have resulted in the grandjury returning improper orunsupported indictments. The stateurged the district court to limit

### its examination tothe probable cause and the evidentiary support for each count. The district court said it "would prefer todo so and leave the matter up to the committee on practice but we can not overlook the devastating effect of the grandjury indictment of the person charged.'I While this Court does not overlook the effect of the indictment, it cannot uphold the dismissal of otherwise valid criminal counts because of possible improper statements made to the grand jury prior to the indictment. The merits of invalid counts may be challanged individually and the defendant's rights thus protected

# . The same may be said of the allegation that therewas sufficient prosecutorial misconduct towarrant dismissal of the indictment. Nothing in the record here approaches this level. The admonition of secrecy that was given towitnesses before the grand jury was not proper because it did not follow the procedure outlined in section 95-1409, R.C.M. 1947. However, the requirement was lifted after indictment so that defendant's ability toprepare his defense has not been impaired. The district court did not expresslybase dismissal of the charges on this error, it said: "While this apparent utter disregard for the orders of this court and the requirements of the law may not have demonstrably prejudiced the defendant, it is nevertheless suspect as an unauthorized intimidation of witnesses by the State, which could, if left standing or further ignored redound to the prejudice of the defendant. This should not be condoned or disregarded inconsidering whether the indictment should be dismissed.'' Under the circumstances disclosed here; the error 

### isnot that fatal. The two remaining valid charges areremanded to the district court for trialon the merits.

# .................................

................................. Justices.

itting inplace of Mr. Wesley Castles.Mr. JusticeGene B. Daly dissenting:

I dissent: Therewillbe a change inthe makeup of this Court

on January 

### 3, 1977. Therefore the Court aspresently constituted must complete 

### itswork assignments no later than Thursday, December 

### 30, 1976 at5:00 p.m. The majority opinion inthis casewas delivered tomy chambers for study and comment FJednesday, December 29, 1976. I was not, previous to receipt of this opinion, accorded an opportunity tojoin with the Court inconference regarding their views or to express mine. I have been present atCourt atall times duringwhich the majority view could have been reached and reduced towriting. Obviously the time required toresearch and properly prepare a responsible legal dissent to the majority's position is no longer available. Therefore, I would advise that I have strong views that differ from the majority position and wish to reserve the right toprepare and filethem ata laterdate.

..@

I% 

### - Justice.