No. 91-507 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, plaintiff and Respondent,
-vsLEROY P. FLESCH, 

### SEP

### 14 

### 1992

APPEAL FROM: District Court of the Ninth Judicial District, In and for the County of Toole, The Honorable R. D. McPhillips, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gregory A. Jackson, Jackson & Rice, Helena, Montana Wendy Holton, Attorney at Law, Helena, Montana For Respondent: Mike McGrath, Special Assistant Attorney General, Helena, Montana Merle Raph, Toole County Attorney, Shelby, Montana

Filed: Submitted on Briefs: July 30, 1992

ClerkJustice John Conway Harrison delivered the Opinion of the Court.
This 

### is an appeal from the District Court of the Ninth JudicialDistrict of the State ofMontana, in and for the County of Toole. 

### The appellant, Leroy P. Flesch (Flesch) appeals his conviction by a Flathead County jury. The case was removed from Toole County for Flesch's trial on the offenses of aggravated kidnapping and intimidation,both felonies under § 45-5-303(1)(c)

## , MCA and 

### H 45-5-203(1)(a), MCA, respectively. We affirm. Two issues are presented for our consideration: 1. Did the pre-accusation delay 

### in charging Flesch irreparably damage his right to present an alibi defense? 2. Was the jury given an improper, insufficient and misleading definition of "reasonabledoubt?'I At approximatelymidnight onJune 4, 1990,as attorney Richard Beatty (Beatty)was leaving his Shelby,Montana office through the rear door, he was attacked by an unidentified man in the carport behind his law office. The man grabbed Beatty, put his hand over Beatty9s mouth and eventuallypushed him to theground. About that time a pickup truck pulled up to the scene of the struggle. Beatty

was forced inside the 

### pickup, but not before the unidentified

### man struck him in the face several times with his fists, With Beatty

on his knees on the floorboards and his head face down, pinned to the seat, theunidentified assailantentered thepickup through the passenger-side door. carport and west into Beatty testified The driver then drove the pickup out of the

a rural area outside Shelby. that approximately fifteen to twenty minutes 2after being forced into the pickup, the driver stopped the truck and "the thug [the unidentified assailant] grabbed me by the back of the collar, back of the neck, back of my jacket and tossed me out of the pickup on to the groundvwhere he was again violently assaulted. After repeatedly assaulting Beatty, the '1thug8g stopped and told 

### him to get back into the truck with the driver who had been sitting behind the wheel during the latest assault. Beatty testified that at this time the driver identified himself as the appellant, Leroy Flesch. Beatty, indeed, recognized the driver as Flesch, a former resident of Shelby and former client of his law firm.After Beatty realized who the driver was, discussion began between Flesch and Beatty regarding what was happening and why. Beatty testified that it was during this discussion that Flesch made his demandsknown: Fleschwanted his legal. files fromBeatty s law office and $20,000 in cash. Beatty testified that Flesch stated, ''1 know you didn'twork on the files, those other guys [in the Eim] did it. I'm not through with them yet. Their day 

### will

comebut you were 

### a seniormember 

### of that firm and I've 

### been going through hell for the last eight years and you're going to pay for it 

# .. . [and] it cost a lot of money to hire thugs. 

## . 

# . ."Flesch demanded that Beatty deliver the filesand $20,000 for his time and trouble. In addition to the demand for his files and the cash, Flesch told Beatty 

### that prior to that 

### evening's events he had been

### watchinghim and learnedhiswork routine. He said thathehad not onlyhired the one thug but had two otherpersons watching Beatty's home, so that if he called the sheriff or law authorities after he

was released, Beatty's wife would be in danger. Beatty informed Flesch that he would not be able to raise $20,000; 

### "Every time I told him that I couldn't get him themoney it would make him mad." Thereafter, Beatty testified, Flesch "motioned with his hand, he said I think you need a little tuning up, 

# . . . [whereupon] the thug reached in [the truck cab] and he grabbed me by the shirt front and pulled me around and whacked me in the face a couplemore times. 

# . . ." After a second threat to "tunehim up,"Beatty finally agreed toget the files together, put them in a

### box along with the $20,000, 

### and deliver them to Flesch in Helena, Montana. Flesch told Beatty that if he did not deliver the files and money within oneweek, Flesch would "not 

# . .. have you stabbed or shot or anything like that, I'm not that cold hearted, but Iwill have these thugs come and break your arms and legs, and if you don't get thisdone in a week, it's going tobe too bad foryou and too bad for your family." After more than an hour of being held captive by Flesch and his thug, Beattywas dropped off at a cemetery south of Shelby. He then walked to his office to retrieve his car, drove home and awakened his wife at approximately 2:30 

### a.m. Shewas a witness as to his condition at the time he returned home. She testified his face was swollen, his shirt had been torn open and he was "upsetand scared. Beatty reported the incident on June 6, 1990 when hemet with the county attorney and sheriff and deputy sheriffs and gave them the details of the assault and kidnapping. Thereafter, Toole County law enforcement authorities conducted an extensive investigation. Statements were taken and transcribed, and agents of the State Department of Justice and the Lewis and Clark County Sheriff's Office were brought in to try to locate the truck in which Beatty had been taken whenhewas kidnapped. The authorities in Helena located the type of pickup truck that Beatty had described at Flesch's residence in Helena. Flesch ultimately was arrested on October 5, 1990. He filed a motion todismiss for failureto charge within a reasonable time, attaching affidavits of his wife and Beverly Finstad, a Helena casino employee. At a hearing held on April 8, 1991, both Mrs. Flesch and Ms. Finstad were called as witnesses. At the hearing and laterat the trial,both testified that they believed but could notbe certain that Fleschwas at the Gold Nugget Casino inHelena, Montana at the time of the incident. Flesch argues that due to the delayed arrest neither could positively testify about his activities that night. Had they known about the charges within a reasonabletimeafterthe incident,he argues,theywould have been able to state with certainty whether he was in the casino at the time of the incident herein related. At trial neither Mrs. Flesch

norMs. Finstadwould positively state that Fleschwas inHelena at the time of the assaults and kidnapping.I As to the first issue regarding the delay in filing the information against him and the denial of his motion to dismiss, Flesch relies on the Fifth Amendment right to due process of law and Article 11, 

### 5 17 of the Montana Constitution. To prevail on such amotionhemust show prejudice to thedefense from thedelay,

aprimary consideration in United Statesv. Marion (1971), 404U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. MacDonald (1982), 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696;United States

v. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; Statev. Burtchett (1974), 165 Mont. 280, 530 P.2d 471; and State

v. Larson (1981), 191 Mont. 257, 623 P.2d 954. As a final authority, Flesch relies heavily on a recent opinion of this Court, Statev. Krinitt (Mont. 1991), 823 P.2d 848, 48 St.Rep. 1088. Inapplying Krinitt to thepresent case,however, Flesch admits that the prosecution was commenced within the applicable five-year statute of limitations, 

### 5 45-1-205(a), MCA. InKrinitt, this Court considered a pre-indictment delay of almost two years and found no basis to reverse the conviction. There we re-established the standard of review for a dueprocess violation: Thus, in considering a defendant's claim that preindictment delay violated his due process rights, the courtmust first determine whether thedefendantsuffered actual, substantial prejudice. 

## . 

# .

# . Upon a showing that the defendant suffered actual, substantial prejudice fromthe delay,the court must then weight the justification for the delay, as well as the absolute length of thedelay, todetermine if dueprocess has been denied. 

# . . 

# . Krinitt, 823 P.2d at 852, 48 St.Rep. at 1090 (citationsomitted).Here, Flesch presented an alibi defense. To support that defense he called his wife and Beverly Finstad. At the pre-trial hearing onApril 8,1991,Ms. Finstad testified that shemight have remembered having seen Flesch in the casino on the night of the crime--June 4, 1990--if charges had been brought within two weeks of that date. Under cross examination she stated that once two or three days had lapsed she could not swear under oath as to who was in the casino on any given day or given time. Further, she acknowledged that she could not remember who was in the casino six days prior to the hearing or whether Flesch was in the casino on April 2, only six days before the hearing. Bonnie Flesch also testifiedat thepre-trial hearing that she

was almost positive her husband was home the night of the alleged incident, but could not be certain. At trial, she testified that her husband was at home the night of the incident: Q: Youearlier stated,positively,youcouldn'tsay for sure whether Leroy Flesch was home that night, the night of June 4th and the early morning hours of June 5th, is that correct? 

### A: No, 

### I didn't say that. 

### I said he was home. 

### I don't know exactly what time he got home but I know he was home that night because when I got up at quarter after 5:00, he was home. This alibi defensewent to the jury and it failed. Thus itwas not

a Stateaction that created any prejudice to Flesch regarding these witnesses. Flesch asserts incorrectly that a 120-day delay occurred. In fact, only 107 days elapsed between June 4, 1990,when the crime

was committed and September 20, 1990, when Flesch was charged.

### Flesch falsely proclaims that "no further investigation took place afterJune 28, 1990." We conclude from the record that this is not correct. At trial the jury heard taped telephone conversations between Flesch and the victim, Beatty, which took place July 9, 1990. Undersheriff Jay Lambert testified at trial that he conducted an investigationof thematter into lateJuly. The Toole County Attorney gave Beatty a tape recorder anticipating that Flesch would contact Beatty again since the $20,000was not paid. When it became apparent that Fleschwas not going to contactBeatty again, the county attorney filed the charges. There is a balancing test in this state regarding the filing of charges. In State v. Curtis (1990), 241 Mont. 288, 297, 787 

### P.2d 306, 312 (citationsomitted), this Court stated: Even if someprejudicehad been proven in this case, thatprejudice must outweigh the necessity of allowing a reasonable time to investigate the crime. In United States v. Lovasco, the United States Supreme Court recognized that reasonable investigative delay protects the interests of both the State and the defendant. From the potential defendant's perspective, premature indictment would, "increase the likelihood of unwarranted chargesbeing filed, and would add to the time during which the defendants stand accused but untried. These costs are by no means insubstantial since 

## . 

# . . a formal accusation may interfere with the defendant's liberty, disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." We hold this case is well within the applicable statute of limitations in that only 107 days elapsed from the date of the crime itself to the filing of the charges. In Krinitt, this Courtupheld a pre-indictment delay of almost two years, far longer than the delay in the instant case.

The second issue is whether the ~istrictCourt properly instructed the jury on reasonabledoubt. Flesch objected at trial to the instruction given by the trial court: Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his or her own affairs. Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of doubt. In his objections to the instruction, Flesch relies on Cage v. Louisiana (1991), 

## -U.S. 

## , 111 S.Ct. 328, 112 L.Ed.2d 339, wherein the United States Supreme Court discussed the reasonable doubt instruction. Flesch alleges that in Case the united States Supreme Court disapproved an instruction that was llstrikinglyM similar to the jury instruction given in this case. Reading Case

we find that the instruction there was considerablydifferent from the instruction given in this case. The language 

### in the Case instruction is 

### as follows: If you entertain 

### a reasonable doubt as to any fact or elementnecessary to constitutethedefendant'sguilt, it is your duty to give him the benefit of that doubt and 

### return averdict of not guilty. Evenwhere the evidence demonstrates a probability of guilty, if it does not establish such guilt beyond 

### a reasonable doubt,youmust acquit the accused. This doubt, however, must be a reasonable one; that is one that 

### is founded upon a real tangible substantialbasis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons 

### of the unsatisfactory character 

### of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantialdoubt. It 

### is 

### a doubt 

### that a 

### reasonable

### man can seriously entertain. What is required is not an absolute or mathematical certainty,but a moral certainty. Caqe,

## -U.S. at 

### , 111 S.Ct. at 329, 112 L.Ed.2d at 341, This 

### is

## not "strikingly similarltto the instruction used in this case. In State v. Lucero (1984), 214 Mont. 334, 343, 693 P.2d 511, 516, this Court specifically stated that more complicated instructions on reasonable doubt did not help clarify the Staters burden of proof, but ratherhad a tendency to confuse the jury. In Lucero, this Court approved the instruction given in the present case, which is patterned after Model Montana Criminal Instruction No. 1-004. See State v. Goodwin (Mont. 19911, 813 P.2d 953, 48 St.Rep. 539. We hold that the reasonable doubt instruction given in this case was proper. Affinned.

We concur: 

# 5flyy,f Chief JusticeSeptember

### 14,1992 CERTIFICATEOFSERVICE I herebycertifythatthefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed: GregoryA.Jackson Jackson&Rice 833LastChanceGulch Helena, MT 59601 WendyHolton AttorneyatLaw 44W. 6thAve. Helena,MT 59601 MerleRaph TooleCountyAttorney P.O. Box518 Shelby, MT 49474 MikeMcGrath,SpecialAsst.Atty.General 

### Lewis&ClarkCountyAttorney 228Broadway Helena,MT 59623

EDSMITH CLERKOF THESUPREME COURT STATEOF,MONTANA,