### No. 13713 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,

-vsSTEPHEN A. THOMPSON, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, Honorable E. Gardner Brownlee, Judge presiding. Counsel of Record: For Appellant: Wm. Georqe Harris argued, Missoula, Montana For Respondent: Hon. Mike Greely,Attorney General,Helena, Montana Charles 

### R. Anderson, Assistant Attorey General, argued,

Helena, Montana Robert Deschamps 111, County Attorney, argued,Missoula,

Montana

Submitted: March 3, 1978 Decided: 

## MAR

## 2

# P 1978 Filed: 

## MAR~2- 

## 1378

### Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. Defendant StephenA. Thompsonwas charged with two counts of perjury in the District Court of Missoula County based upon his sworn testimony in the homicide trial of Levi Stump. The jury acquitted defendant Thompson of count I and convicted him of count 11. Following denial of defendant's motion for a new trial on count 11,he appeals. Pursuant to a plea bargaining agreement with the prosecutor,defendant Thompson agreed to testify for the State in the deliberatehomicide trial of Levi Stump who was accused of killing Charles Daniels. On June 25, 1976 defendant Thompson testified in the Stump trial. His direct testimony

was that he and Stump had killed Daniels; on cross-e~mination he retracted this testimony by testifying that neither he

nor Stump had anything to do with killing Daniels. The Stump trial ended in a mistrial. On July 8, 1976 defendant Thompsonwas charged with perjury. The amended information charged two counts of perjury: Count I charged perjury based upon defendant's inconsistent statements in a single proceeding; Count I1 charged perjury based on defendant's testimony in the Stump trial that he saw the victim lying on the ground bleeding on April 22 and April 23 near where the body was found onApril 25, 1976. Defendant Thompsonplead not guilty to each count. Thereafter the District Court denied defendant's motion to dismiss the amended information. Later, following a hearing, the District Court denied defendant's motion to suppresshis statements to police following his arrest in the Daniels homicide. Defendant's trial on the perjury charges commenced on October 8, 1976. At the close of the State's case-in-chief,defendant moved for a directed verdict inhis favor and dismissal of the amended information which was denied.

Defendant offered no testimony inhis defense and rested his

case. The jury acquitted defendant of Count I and convicted him of Count 11. Defendant's motion for judgment notwithstanding the verdict on Count I1 was denied. Defendant was sentenced to ten years inthe state prison with fiveyears suspended. Later an amended judgment

was entered whereby defendant was incarcerated atthe Swan Lake Youth Correction Facility. Following denial of his motion for a new trial, defendant appeals. On appeal, we consolidate the issue into six specifications of error raised by defendant: (1)Denial of hismotion to suppress his statements given topolice following his arrest in the ~aniels' homicide. (2) Denial of hismotion todismiss Count I1 of the amended information. (3) Denial of hismotion for a directed verdict atthe closeof the State's case-in-chief. (4) Denial of hismotion for judgment notwithstanding the verdict on Count 11. (5) Errors ininstructing the jury. (6) Denial of a fair trialbased on the State's closing argument to the jury. Issue 1. Defendant claims that his arrestwithout 

### a warrant inthe Daniels' homicide was unlawful sohis statements given to the police were involuntary and should have been suppressed. The record discloses that none of the statements defendant sought tohave suppressed 

### were admitted inevidence inhis perjury trial. Under such circumstances, defendant'sspecificationof error lacks substance. This Court does not decide academic, theoretical ormoot questions. Adkins v. City of Livingston, (1948), 121Mont. 528, 194 P.2d 238. Although defendant argues that this issuemust be considered because the present casewas an outgrowth of the Daniels' homicide case, we adhere tothe rule that this Court confines 

### its rulings tothe case on appeal. Feely v. Lacey, (1958), 133 Mont. 283, 322 P.2d 1104. As defendant's statements to the police following his 

### arrest inthe Daniels' homicide were not used inhis perjury trial, his specificationof error lacks relevance inthis appeal. Issue 2. Defendant specifies error inthe District Court's refusal todismiss the perjury charge inCount I1 prior to trial. He argues that his testimony inthe Stump 

### trial thathe saw thevictim lying on the ground bleeding two and three days prior todiscovery of the body near the

same locationwas not

### material to the issue inthe Stump trial, specifically who killed Daniels. Montana's perjury statute, Section 94-7-202, R.C.M. 1947, provides inpertinent part: "Perjury. (1)A person commits the offense of perjury if inany officialproceeding he knowingly makes a false statement under oath

## * * 

## * when the statement 

### is material.



### " (3) 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 declarantmistakenly believed the falsification tobe immaterial. Whether a falsification ismaterial ina given factual situation 

### is a question of law." is The test of materiality/whether inthe actual factual situation involved, it would be reasonable tofind that the defendant's statement, if believed, could have altered the course oroutcome of the proceeding. Statev. Scanlon, (1977), 34 St.Rep. 956, Mont. 

## , 569 P.2d 368; Statev. Hall, (1930), 88 Mont. 297, 292 P.2d 734.This 

### is the same testthat applied under the prior perjury statute. Statev. Scanlon, supra. Heredefendant's testimony inthe Stump trial thathe

saw Daniels lying bleeding on April 22 and April 23 near the place where Daniels' body was found on April 25 reasonably could have affected the outcome of the Stump trial. Defendant Thompson's statement, if believed by the jury, would furnish that 

### a basis for determining

### / Daniels died from wounds inflicted by someone other than Stump and Thompson. Stump's defense

was that someone elsekilled Daniels and not him; Thompson's statement, 

### as theprosecution's principal witness, substantiated Stump's defense. Accordingly, we hold thatdefendant Thompson's sworn statement 

### wasmaterial and could have affected the outcome of the Stump trial. The District Court was correct in denying defendant's motion todismiss Count I1 of the amended information. Issue 3. Here defendant repeats his argument that his testimony was not material and further argues that his statement was not false. In this case the jury, if itbelieved the State's witnesses, could find thatDaniels was seen alive and 

### well between April 22 and April 25; thatdefendant Thompson falsely gave sworn testimony inthe Stump trial thathe saw Daniels bleeding, in the area where his body was later found some two and threedays prior todiscovery of the body. A directed verdict for the defendant ina criminal case can only be given where there isno evidence on which the jury could base a conviction. Statev. Paulson, (1975), 167 Mont. 310, 538 P.2d 339. The District Court was correct indenying defendant's motion for a directed verdict. Issue 

### 4. Defendant next claims error inthe DistrictCourt's denial of hismotion forjudgment notwithstanding the guiltyverdict on Count I1 of the amended information. He argues that the verdicts inthis case must be identical; that acquittal on Count I bars conviction on Count 11. He further contends thatbecause of his defense of retraction, the verdict on both counts must be consistent and he cannot be charged and convicted of perjury on Count I1 because of his retraction. Consistency inverdicts on multiple charges 

### isnot required inallcases. Dunn v. United States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356. Defendant recognizes thisprinciple but maintains that inthis case consistency 

### isrequired because the elements of the offenses charged in both counts arethe same and because of his defense of retraction. Where separate acts arecharged inan information, each act

### is a separate offense and acquittal or conviction of one
ormore counts does not affect the other counts. Statev. Boe, (1963), 143Mont. 141, 388 P.2d 372. Here each count inthe amended information filed against the defendant states a separate offense of perjury. Acquittal of Count I does not bar conviction of Count I1 because the elements charged inthe two counts aredifferent. To prove Count I, the Statehad to show that the defendant made inconsistent statements inthe Stump trial and that one of the inconsistent statements

### was falseand 

### was not believed tobe true by the defendant. To prove Count 11, the State had to show that defendant knowingly made a false and material statement under oath, not that he made inconsistent statements during the Stump trial. As the elements of the two offenses charged were different, consistency of the two verdicts was not required.The defense of retraction 

### is irrelevant todefendant's conviction of perjury inCount I1 of the amended information. Count I1 charged defendant with perjury based upon his sworn testimony inthe Stump trial that he saw Daniels bleeding on April 22 and April 23 inthe area where the body was found

on April 25. This statementwas made on redirect examination and was not retracted thereafter. Thus the essential elements of a retraction of this statement aremissing, viz. a different and true statement following a prior falsification inthe

same proceeding. Section 94-7-202(5), R.C.M. 1947. The DistrictCourt was correct indenying defendant's motion for judgment inhis favor notwithstanding the guilty verdict on Count 11. Issue 5. Wefind no substance todefendant's contention that the jury was improperly instructed. No errorwas committed ingiving State's proposed instructionNo. 6 and refusing defendant's proposed instructionNo. 12. Both relate toinconsistent statements made under oath and contain the statutory language of section 94- 7-202(6), R.C.M. 1947, except that the State's proposed instruction omits thewords "both having been made within the period of the statuteof limitations

## * 

## * 

## *". Both instructions related toCount I of which defendant was acquitted; there

### was never an issue concerning the statute of limitations in the case; and the instruction given 

### is

a correct statement of the law asapplied to the evidence in the case. Nor was there any error inrefusing defendant's proposed instructionNo. 16 on corroboration of perjury. Court's instructionNo. 13covering this subjectwas given to the jury; it incorporated the requirements of section 94-7- 202(7), R.C.M. 1947, and 

### was a correct statement of the 

### law; and the refused instructionwas redundant.Issue 6. Defendant's final contention 

### is that the State's closing argument to the jury denied him a fair trial. Heobjects to the State's arguing to the jury that perjury ina homicide case could have disastrous effects in that an innocent man could be hanged or a killer go free; that the State attempted touse information, facts and testimony not inevidence atthe trial; and that his presumption of innocence and his right tobe fairlyjudged by the jury

was destroyed. The State's comments inclosing argument on the effect of perjury ina homicide trialwere unobjectionable. The following quotation 

### is a correct statement of the 

### lawon this subject: "Generally, the gravity of the 

### crimecharged, thevolume of the evidence, credibility of the witnesses, inferences tobe drawn from various phases of evidence, and legal principles involved, tobe presented ininstructions to thejury, are allmatters within the proper scope of argument. 

## * * 

## *" [Emphasis supplied.] 23A C.J.S., Criminal Law, Sec. 1090, page 129. Here the Statewas simply informing the jury what effectperjured testimony could have ina homicide trial. This 

### is simply a comment on the gravity of the crime charged and 

### wellwithin the scope of proper argument to the jury. Nor did the State's closing argument to the jury encompass information, facts or testimony not inevidence at the trial. We recognize that discussing facts not in evidence ina closing argument to the jury is improper. Statev. Toner,(1953), 127 Mont. 283, 264 P.2d 971. We alsonote that repeated attempts toplace excluded evidence before the jury is reversible error. Statev. Bain, (1978), 35 St.Rep. 257, Mont. -I 

### - P.2d However, inthis case the transcript of testimony in the Stump homicide trialwas admitted inevidence in the perjury case now on appeal. In that transcript there are

numerous references tovarious individuals and statements by

### IN THE SUPREME COURT OF THE STATE OF MONTANA No. 13713



# .......... STATE OF NONTANA, Plaintiff and Respondent,

v. STEPHEN 

### A. THOMPSON, Defendant and Appellant. CLERKOF SUPREMECOURT STATE OF MONTANA



# ............ ORDER AElENDING OPINION



# ............ The above named opinion, issued March 28, 

### 1978, should be amended by deleting the present Page 9 

### (exceptfor the signatures of authoring and concurring justices) and replacing it with the attached Page 9. 

### DATED this ~f&day of April, 

# D& 

# $*&-a Chief Justice

### defendant. The State's closing argument attempted to explain that transcript to the jury so they could understand it and not be mislead by it. With one exception, the District Court did not sustain defendant's objections to the State's closing argument. Thus, this case does not present the situation where the State made repeated attempts to get inadmissible matters before the jury. Finally,we find no denial of defendant's right to a fair trial in the State's closing argument. A correct general statement of the applicable law has been stated in this language: "Thedefendant in a criminal case has the right to a fair trial. It is axiomatic that prejudice can be implied from the denial or invasion of that right. However, the defendant must show that his right to a fair trial was denied or invaded." State v. Bradford, (1978), Mont

# . , 575 P.2d 83, 86, 35 St.Rep. 241- Or stated another way: "Therule applicable is that before a judgment in a criminal case will be reversed,prejudice in a criminal case will not be presumed, but rather must appear from the denial or invasion of a substantial right from which the law implies prejudice. The defendant must demonstrate prejudice from the record. (Citationomitted.)" Bradford, 575 P.2d 86. The record in this case fails to show denial or invasion of defendant's right to a fair trial in the State's closing argument. With one exception the State's argument to the jury was unobjectionable; that exception was corrected by the District Court's admonition. A£

### firmed

# .

(Frank I. Haswell) Chief Justice

We Concur:

(GeneB. 

### Daly) (JohnConway Harrison) (Daniel

### J. Shea) Justices

(BernardW. Thomas) District Judge