NO. 8?-261

TN THE SUPREME COURT OF THE STATF OF MONTANA

1988

THE STATE OF MONTANA,

Plainti-ffand Respondent,

-vsKENNETH ALBERT MILLER,

Defendant and Appellant.

APPEAL FROM: DistrictCourt of theFifthJudicialDistrict, Inand fortheCounty of Jefferson, The Honorable Frank M. Davis, Judge presiding.

COTJNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Cannon and Sheehy, Helena, Montana

For Respondent:

Honorable Mike Greely, Attorney General, Helena, Montana John P. Connor, Jr., AssistantAttorney General Richard J. Llewellyn, County Attorney, Boulder, Montana

Submitted: March 2, 1988

Decided: May 4, 1988

Filed: 

### MAY4

# - 1988

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Kenneth Albert Miller (Miller) appeals his conviction by jury trial and denial of hismotion for a new trial. The Fifth Judicial District Court, Jefferson County, Montana, sentenced Miller to a 180-year sentence, 75 years on two counts of deliberate homicide under the felonymurder rule, 20 years for robbery, and 10 years for felony assault by accountability. We affirm. The issueswe are presentedwith are stated as follows: 1. Did the District Court err in failing to grant Miller's motion for a change of venue? 2. Did the District Court err in limiting the introduction of character evidence pertaining to codefendant. Sean Wentz? 3. Did the District Court err in denying Miller's motion to dismiss at the close of the State's case-in-chief? 

### 4. Did the District Court err in disallowing Miller from cross-examining Wentz on the basis of a reportprepared for the defense but not supplied to the State? 5. Did the District Court err in disallowing introductionof Exhibit 1whichportrayed Miller's version of the crimes? 6. Was the jury verdict supported by sufficient evidence? 7. Was Miller properly sentenced by the District Court?8. Did the District Court err in classifying Miller a "Dangerous Offender"? 9. Did the District Court err in denying Miller's motion for anew trial?10. Should Miller be eligible forparole in 174years? Miller was charged by amended information with four counts ofdeliberate homicide under 45-5-102(1)(a)and (b)

## , MCA; robbery, S 45-5-401, MCA; and felony assault by accountability,SB 45-5-202 and 45-2-302, MCA. On March 19, 1987,hewas convictedby a jury ofdeliberate homicideunder the felony murder rule, robbery and felony assault by accountability. He was found not guilty of purposely and knowingly committing deliberate homicide. He was sentenced

as stated above. A motion for new trial was filed June 22, 1987. After a hearing, the District Court denied themotion fornew trial on July 24, 1987. Miller appeals. On November 18, 1986, Miller and Sean Wentz went hunting after completing work for the same janitorial service. They were drinking. After failing to drop a deer that Miller shot at, they returned to Helena. Wentz picked uphis 12-guage shotgunand they purchased more beer. Miller and Wentz then proceeded south from Helena. After hunting near Clancy for awhile,theywent toTingsbar, in Jefferson City, and consumed more alcohol. Miller suggested they go to Boulder Hot Springs. The two departed at approximately 8:45 p.m. and arrived in Boulder at the Loungebar. During thisportion of the trip,Wentz fired his shotgun four or five times out the window of Miller's white 1968Volkswagen. Once at the Lounge,Miller and Wentz drank tequila and received instructions to thehot springs fromTerranceDuffy, the owner and bartender. They headed south but could not find the resort. Wentz testified that they agreed to a robbery plan about eleven miles south of Boulder and turned off the highway onto a lane that led to the Wortman family residence. Miller claimed he turned off to urinate. He stated that the door to the car was open and he was unawareof what Wentz was doing due to loud rock music from the car stereo. Wentz,with a shotgun,was observedby BillWortman, who opened the door to the trailer house when he heard dogs barking. Wortman, a 14 year-old-boy, testified that he was frightened and slammed thedoorwhenWentz pointed the gun at him. Wentz testified that he and Millerwere at the trailer and Wentz had the shotgun. Marilyn Wortman testified to hearing a car start and seeing lights. She and another son, Shannon, both saw taillights. Marilyn called the police. Shannon Wortman also testified to finding a shotgun shell in the yard the next morning. The shell was taken by Mrs. Wortman to the Sheriff's Office and identified later at trial by experts as being ejected from Wentz's shotgun. Deputy D.D. Craft responded to Wortman's call at 9:10 p.m. At approximately 9:15 to 9:20 p.m. he saw a white Volkswagenheading toward Boulder and radioed Chief of Police Dennis Sullivan. Sullivan testified to observing a white Volkswagen at the Lounge at approximately 9:20 p.m. Wentz and Miller testified that they droveback to the Lounge in Boulder. Wentz claimed they returned for the purpose of robbing the bar. Wentz testified he brought the shotgun in to frighten the victims and that Miller entered the bar in front of him. He said Duffy came from around the bar and a struggle ensued. Wentz said Miller encouraged him to shoot Duffy. During the struggle, according to Wentz's first statement, the shotgun discharged. The County Attorney, John Conner, challenged Wentz as to conflicting previous statements and physical evidence. Wentz recanted this statement and testified that Miller grabbed the gun and shot Duffy. He said Miller handed the gun back to him and began picking up the spent shotgun shell when Marie Duffy entered thebar. According toWentz, asMrs. Duffy came intothe bar, Miller reached around him and pulled the trigger whileWentz held thegun. Miller claimed they returned to the Lounge for further directions to Boulder Hot Springs. He stated that as he and Wentz sat drinking at the bar, Wentz and Duffy began to argue. Wentz left the bar and returned with the shotgun. Upon seeing the gun, Duffy struggled with Wentz and the gun fired. Miller said he went to the side of thebar next to a beam and did not see the actual shooting of Duffy because he

was onhis knees facing thewall. After the shooting,Miller stated Wentz ordered him to retrieve the casing and threatened to shootMiller if he did not comply. Miller claimed Mrs. Duffy then entered the rear of the bar and Wentz shot her. Miller claimed Wentz forced him to grab money from the cash register and some liquor bottles. Miller gave the cash toWentz. The two returned to the Volkswagen and proceeded to Helena. Miller said Wentz claimed he killed 32people inCalifornia,hadmade it 34 and couldmake it 35. The local Boulder authorities were notified of the homicidesat approximately 10:OO p.m. TheHelena authorities

were notified by an all points bulletin. Upon returning to Helena,Miller andWentz proceeded to steal a Jeep and pickup at a local car dealership. They then drove the stolen vehicles to the residence of Tammy Harding,Wentz's fiancee. She testified thatWentz and Miller entered the apartmentand Wentz told her two peoplewere down inBoulder andMiller had shot them. At trial, inconsistent testimony was presented that Wentz told Harding he had shot the Duffys after Mr. Duffy and hehad argued. Wentz grabbed clothes and additional ammunition from the apartment. He andMiller then drove to a local carwash, left the Jeep and returned to the automobile dealership to

### retrieve Miller's Volkswagen. Chester Richey, a fellow employee of Wentz and Miller for the janitorial service, testified Wentz was brandishing the shotgun when he returned to the dealership. Wentz told Richey not to call thepolice. Richey statedMiller did whatWentz told him. After Wentz and Miller left Tammy Harding's residence the first time, she telephonedher fatherand he had hiswife notify the Helena police to dispatch an officer to Tammy Harding's residence. Mr. Harding went to Tammy Harding's residence and testified to seeing the two vehicles return with "theblack Chevy pickup coming first into thedriveway." With Miller driving the Volkswagen and Wentz driving the pickup, the two did return to the circular driveway next to Harding's apartmentbut did not leave their vehicles. Miller claimed he drove to Harding's residence hoping the police would stop them on the street. Miller and Wentz sped away from the complex when they saw Helena Police Officer Brad Hampton throughTarnmyHarding's windows. The two individuals fled with Hampton inpursuit ultimately returning to the car wash. Hampton testified thathe stoppedWentz and told him to get on the ground face down. As Wentz did so,he threw some money and stated that Miller had done the shooting. Miller at this time did not stop but instead drove over a rocky embankment and onto the road heading away from the carwash. Millerwas stopped shortly thereafterby officer FrankMelton who ordered Miller to go "down into a prone position on the ground" atwhich time keys to the stolenJeep fellout ofhis pocket. These keys were found underneath Miller but he stated they were not his. Miller denied any knowledge as to why hewas stopped. Wentz, after being read his Miranda rights, made several statements to the arresting officers and officers atthe Lewis and Clark County Jail to the effect thatMiller had done the shootings. Wentz also gave a recorded statement to JeffersonCounty authorities. Miller denied that hewas ever in Boulder but was too intoxicated to make any other statements. After the trial and sentencing, Wentz, while incarcerated at the state prison, wrote two letters to defense counsel for Miller exculpating Miller of the crimes. In the letters Wentz admitted to contriving the robbery scheme, committing the murders and threatening Miller into assisting. At the hearing on themotion for a new trial,the District Court disallowed the letters saying they were hearsay and even if they were not, the court would not overturnthe jury's decision.

Motion to Change Venue Miller contends theDistrict Court erred in denying his motion to changevenue. Thismotionwasproperly filed prior to trial and contained an affidavit and copies of newspaper articles about themurders. Miller claims that an article that appeared in the December 

### 4, 1986 Helena Independent Record,with apicture of Miller containing a caption "fingered as having fired fatal shoots" was inflammatory and prejudiced the jurors. He further argues that two stories in the Butte Montana Standard, November 20, 1986, and November 21, 1986, and avideo tape from Helena's KTVH television stationof the motion to change venue hearing onNovember 18, 1986,had the same impact on the jury population. Miller claims the District Court abused its discretion in failing to grant the motion because a reasonable possibility existed that Miller could not get a fair trial in JeffersonCounty.Section 46-13-203(1), MCA, provides that a defendant "maymove for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in such county." A defendant, who is seeking a change of venue on the grounds of prejudicial publicity, must prove two elements: (1)he must show that the news reports complained of were inflammatory; and (2)he must show that the publication or articles actually inflames the prejudice of the community to an extent that a reasonable possibility exists that he may not receive a fair trial. State 

### v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832; see, State

### v. Bashor (1980),188Mont. 397, 403-407, 614P.2d 470, 474. As we said in Ritchson, the first test focuses on the nature of the publicity while the second focuses on the effect. Upon review,we look not to the amountofpublicity but rather towhether thepublicity isof sufficientinflammatory nature to generate awidespread belief among the community of guilt. This inflammatory nature must be proven by the defendant who alleges denial of a fair trial. See, Statev. Holmes (1983),207Mont. 176, 181, 674P.2d 1071, 1073; State

v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324. Denial of a motion for change of venue is not reversible error in the absence of an abuse of discretionby the trial court. Statev. Smith (Mont. 1986), 715 P.2d 1301, 1309, 43 St.Rep. 449, 458; State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298. We stated theproof required for a court to change venue as follows: A defendant seeking a change of venue must show that there is reasonable grounds to believe that a prejudicial atmosphere exists within the present venue which creates a reasonableapprehension that he cannot receive a fair trial. Ritchson, supra, 199 Mont. at 54, 647 P.2d at 832; State v. Link (Mont. 1981), 640 P.2d 366, 368, 38 St.Rep. 982, 985. Miller did not reach this burden of proof and the District Court did not abuse its discretion in denying his motion. Miller's motion was supported by his counsel's affidavit stating facts in support of alleged prejudice. These facts included the following statements: (1)that the population of Jefferson County was so limited that it was "virtually impossible" to pick a jury that was not either acquainted or familiar with the Duffys; (2)that the crime

was subject to substantialand continuing media coverage such that "it can be reasonably apprehended that a fair trial in Jefferson County cannot be had;" and (3)that the attached articles to the affidavitwentbeyond objective dissemination of information. Review of the articles shows that the majority of the national papers were largely concentrating on the victims' famous son, Patrick Duffy, of the television program "Dallas." The local publications contained factual reports of informationgathered from law enforcement officials, that

was limited and accurate, or from court records that were public knowledge. The reports were factual, contained no editorializing and could not have served to inflame the prejudice of the community. State v. Dryman (1954), 127 Mont. 579, 581-583, 269 P.2d 796, 797-798. The affidavit was conclusory in nature and failed to show a connection between any inflammatory articles and possible prejudice of the community. Mere allegation of inflammatory material is insufficient if the second requirement enunciated in Ritchson, supra, is not proven,e.g., that the articles actually inflamed community prejudice to such an extent that a fair trialwas impossible. The defense made no inquiry at voir dire as to whether any of the jurorshad been influencedby the articles. There

was nothing established invoir dire to show the existence of the "indicia of prejudice" we have required to support a motion for a change of venue. See, State v. Armstrong

(1980),189Mont. 407, 423, 616 P.2d 341, 350; Statev. Board (1959),135Mont. 139, 143, 337 P.2d 924, 927. At voir dire a number of jurors admitted knowing some witnesses. Miller argues that People

### v. Tidwell (Cal. 1970), 473 P.2d 748, supports his contention where witnesses are known by the jury that this interfereswith the defendant's right to a fair trial. However, Tidwell is easily distinguishable in that there was press exposure based on "investigating officers [keeping] the press and hence the public, apprised of virtually every step in the progress of their investigation." Tidwell, supra, 473 P.2d at 750. Further,one-third of the twelve-person juryknew one ormore of the homicide "victims." In this case, all four of the prospective jurors who knew the Duffys were removed by peremptory challenge. At any rate, 

### "[klnowledgeon thepart of jurors is not sufficient and cannot be equated with prejudice." Smith,supra, 715P.2d at 1309. We have approved of theuse ofvoir dire todemonstrate prejudice. Statev. Nichols (Mont. 1987), 734P.2d 170, 174, 44 St.Rep. 382, 387. And in Holmes, supra, where all the jurors claimed they had heard of the defendant,but only two peoplewere removedbecause they expressed prejudice,we held that the District Court had not abused its discretion in denying amotion for a changeofvenue. We note that voir dire is not the sole method to be employed to determine whether prejudice exists. Paisley,supra, 663 P.2d at 324; State ex rel. Coburn v. Bennet (1982), 202 Mont. 20, 32-33, 655 P.2d 502, 508. However, where no connection is made of inflammatory media coverage and an excessive community prejudice, e.g.

## , through the use of surveys,voir dire is an appropriate arena where prejudice

canbe demonstrated. Where the District Court has appropriately granted a change of venue, the connection between inflammatory news reports and the actual inflaming of community prejudice has been shown. In Paisley, supra, we held that the court appropriately granted a change of venue motion where a written report of a criminologist who surveyed the community's registered voters' opinions was submitted and there was extensive editorializing by the local newspaper against thedefendant. Miller argues that federal courts only require a showing of publicity that "sopervades theproceedings as to create a 'carnival atmosphere'" and defendant does not have to show identifiable prejudice. Sheppardv. Maxwell (1966)

### , 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; Estes v. Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543; Rideau

v. Stateof Louisiana (1963),373U.S. 723, 83S.Ct. 1417, 10 L.Ed.2d 663. We note that these cases involved significantly

more proof of prejudice, including opinion polls, than was presented by Miller in this case. The standard asserted by Miller presumes prejudice by pretrial publicity without requiring actual proof. Coleman

v. Zant (11thCir. 1983), 708 F.2d 541, 544. It has long been the law of this state that prejudice in a criminal case will not be presumed, but must appear from the denial or invasion of a substantial right from which the law imputes prejudice. Statev. Steffans (1981),195Mont. 395, 636P.2d 836; State v. Bubnash (1963), 142 Mont. 377, 382 P.2d 830.LimitationofCharacter Evidence PertainingtoWentz Miller claims that the District Court erred in disallowing Miller from presenting evidence of Wentz's character through the testimony of Chester Richey,whoworked with both Miller and Wentz. Miller relies on Rule 404(c), M.R.Evid., which states: Evidence of a person's character or a trait of his character is admissible in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense. This rule has not been interpreted by this Court and has no federal counterpart. Statements in the Commission Comments, Rule 404,M.R.Evid. are ofno assistance. Miller asserts the evidence tobe solicited fromRichey would impeachRichey's statement thathewas not "frightened" of Wentz, and would expose the inaccuracy of a number of other statements made by Richey. Upon review of the record,

we note that the District Court allowed Miller to make an offer ofproof. Counsel forMiller stated that he was going to present two statements involving Wentz's claim "about shooting niggers" and a comment that Wentz "wasgoing to use the shotgun toblow trees outof the ground." An offer of proof allows counsel the ability to get evidence on the record where the court determines that it should be excluded. "In case the ruling is one excluding evidence, the substance of the evidence [is]made known to the court by offer or [is] apparent from the context within which questions [are] asked.

### " Rule 103(a)(2)

### ,M.R.Evid. An offer of proof should be specific as to the facts to be proven. Palmerv. McMaster (1891),10Mont. 390, 25 P. 1056. A trial court cannot commit error without the arguing party informing the court that a specific course of action is legally improper. There isno statementby Miller here as towhat facts were to be proven or that an alternative manner would be less objectionable. The statements that Miller attempted to present to the jurywere cumulative in that they came out in various forms, direct and indirect, throughout the trial after Richey testified. There was testimony presented through a police officer, defendant's witness Dave Johnson and through cross-examinationofWentz himself thatWentz was amember of the Arayan Brotherhood, a white supremacist organization. Although not allowed to impeach Richey directly on the stand at the timehewanted,Miller could have recalled the witness in his case-in-chief and presented the evidence once the compulsion defense was before the jury. Any error, defect, irregularity,or variance which does not affect substantial rights shall be disregarded. Section 46-20-701(2)

## ,MCA. A review of the record shows the court's exclusion was not reversible error. Statev. Gould (Mont. 1985), 704 P.2d 20, 30, 42 St.Rep. 946, 956;McGuinn v. State (1978), 177 Mont. 215, 223, 581 P.2d 417, 422; State 

### v. Romero (1968), 161 Mont. 333, 341-342, 505P.2d 1207, 1211-1212.

Motion to Dismiss Miller claims the District Court erred in denying his motion to dismiss Counts I and I1 dealing with purposely or knowingly killing the Duffyswhich he was required to defend but for which the jury found him not guilty. He further claims the court erred in denying his motion to dismiss in regards to Counts 11, IV and V dealing with the deliberate homicide charges under the felonymurder rule and robbery for which he was convicted. Miller's final claim at this juncture is the District Court erred in not granting his motion todismiss CountVI on the issue of accountability for felony assault.All of Miller's contentions are based on a claim of insufficient evidence to support the State's case. Section 46-16-403, MCA, which deals with motions to dismiss or directed verdicts shows that it is within the District Court's discretion whether to dismiss an action at the close of the State's case. State 

### v. Longneck (19821, 201 Mont. 367, 373, 654 P.2d 977, 981; State v. White Water (Mont. 1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666. The District Court's ruling will only be disturbed on appeal where an abuse of discretion is shown. State v. Smith

(1980), 187 Mont. 245, 250, 609 P.2d 696, 698,overturned on other grounds, 685 P.2d 918. In construing the statute,the motion todismiss is conditionedupon "insufficient evidence" to support a finding of guilty. The motion "should be granted onlywhere there isno evidence upon which a trier of fact could base a verdict." State v. Matson (Mont. 19871, 736 P.2d 971, 974,44 St.Rep. 874, 877,citing Statev. White Water, supra, 634P.2d at 638. In State v. Roberts (1981), 633 P.2d 1214, 1218-1219, 38 St.Rep. 1551, 1556,we quoted the language of Jacksonv. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573, to set out the required standard for sufficientevidence stating: [Tlherelevant question iswhether after viewing the evidence in the light most favorable to the prosecution, 

### any rational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt. Miller argues that insufficient evidence was presented to supportany of the above stated Counts. We disagreeand find that the District Court did not abuse its discretion in denying themotions todismiss.Miller argues no corroborating evidence existed and thereforeWentz's testimony,that especially connected Miller with the deliberate homicide of the Duffys, should not have been admitted because Miller claims no reasonable person could have found Miller purposely or knowingly killed either Duffy. Section 46-16-213, MCA, states that a conviction cannot be had on the testimony of one responsible or legally accountable for the same offense 

### (545-2-301, MCA, defines accountability) unless corroborating testimony,which is not sufficient if it merely shows commission of the offense or the circumstances, is presented. 

### "[C] orroboration is sufficient if, 'unaidedby the testimony of an accomplice, it tends to connect the defendant with the commission of the offense.

### ' " State v. Morse (Mont. 1987), 746 P.2d 108, 113, 44 St.Rep. 1919, 1926, citing,Statev. Gonyea (Mont. 1987),

Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must show more than the fact that a crime was committed. It must raise more than a suspicion concerning defendant's involvement in the crime. However, it need not be sufficient, on its face, to support a prima facie case againstdefendant. Statev. Kemp (19791, 182 Mont. 383, 386-387, 597 P.2d 96, 99. The evidence need only "tend to connect" defendant with the crime. State v. Mitchell (Mont. 1981), 625 P.2d 1155, 1158, 38 St.Rep. 487, 489-490. Further, the evidencemay be circumstantialand it may come from the defendant or his witness.

State v. Cain (Mont. 1986), 718 P.2d 654, 656, 43 St.Rep.

The jury was presented with ample corroborating evidence connecting Miller to the Duffy murders and thefelonious assault at the Wortman residence prior to the testimonyofWentz. Miller and Wentz were seen together a number of times by numerous individuals on November 18, 1986. They were together when Wentz picked up his shotgun. They were identified by the bartender at Ting'sbar in JeffersonCity. They were seen shortly thereafter at the Lounge bar in Boulder. Bill Wortman identified Wentz as being on their property and the testimony of the Wortmans' connected Miller's car to that activity. Officer D.D. Craft, responding to the Wortmans' call, identified a white Volkswagen heading towards Boulder. Boulder Police Chief Sullivan saw a white Volkswagen parked outside the Lounge shortlyafter 9:15 p.m. that evening. Gunshots were heard by Fred May, an employee at theMontana Developmental Center in Boulder, at approximately 9:30 to 9: 45 p.m. as he walked to work. Julie Sampson, a nurse at the Montana Development Center, noticed a white Volkswagen parked in front of the Lounge with its driver's side door open at approximately the

same time. Miller and Wentz were together at the local car dealership in Helena where they broke in and left in a Jeep and pickup. Miller was seen driving the Jeep thatwas later abandoned at Zig's Car Wash. He was observed at this time following a black Chevrolet pickup which matched the description of the vehicle Wentz was driving. The operative word here being "following"Wentz. Miller attempted to keep Wentz quiet about any of the night's events at Tarnmy Harding's apartment. Miller also made statements to the extent that the two shouldblowup the stolenvehicles. Chester Richey identified Miller and Wentz together when the two returned to the local car dealership to get Miller'sVolkswagen. After returning to Harding's residence,where Miller was again seen "following" Wentz, the two fled when they noticed a police officer. After finally being stopped by the Helena police, Miller portrayed, not someone under compulsion to commit crimes, but a person who had no idea why he was stopped. The arresting officer saw no sign of force or intimidation exercised by Wentz over Miller. Miller told the arresting officer that he had no knowledge about the Jeep keys found under his body. At the Lewis and Clark County Jail,Miller stated he had neverbeen to Boulder and asked again why hewasdetained. All of this evidence, although it does not create a prima facie case against Miller, tends to connect him with the charged crimes. Miller argues that State v. Bradford

(Mont. 1984), 683 P.2d 924, 41 St.Rep. 962, stands for the proposition that "mere presence is not enough to prove accountability." This characterization of Bradford is only partially accurate. The actualquoteof this case is: Although mere presence at the scene of a crime is not enouqh to establish accountability,

## - the ac&used need not take an activeart inanv overt criminalacts 

### - -- to be adjidged crimrnally liable for the -- 

### -- acts. [Citing, State v. Hart (Mont. 19811, 625 P.2d 21, 38 St.Rep. 1331. (~m~hasis added.) -

Bradford, supra, 683P.2d at 930. The above cited corroborative evidence shows the jury could infer that Miller was involved in the crimes at the Lounge and the Wortmans'. It also shows the jury could find Miller had opportunity to escape from any force or intimidation of Wentz numerous times but instead acted in concert. The corroborative evidence shows that Miller and Wentz could have acted in concert in the felonious assaultof Billy Wortman, in the robbery and murder of the Duffys, and even, although the jury did not so find,that Miller had theopportunity and motive to purposely and knowingly commit deliberatehomicide. The State admits that much of the evidence connecting Miller with the various charges was circumstantial but we have held numerous times that circumstantial evidence is sufficientto supporta conviction. Roberts, supra, 633P.2d at 1218; State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 465-466; State v. Fitzpatrick (1973), 163 Mont. 220, 225, 516 P.2d 605, 609. However, in this instance, as "[wle stated in Fitzpatrick, supra, that to justify a conviction ina casebased solelyon circumstantial evidence, the facts and circumstances must not only be entirely consistent with the theory ofguilt,butmust be inconsistent with any other rational (reasonable)conclusion." State v. Lucero (Mont. 1984), 693 P.2d 511, 513, 41 St.Rep. 2509, 2511-2512. With this statement that the evidence must be inconsistent with any other reasonable conclusion, we must look to the jury's verdict and the additional evidence presented. Once the corroborative evidence was presented, Wentz recited a version of the story much different from Miller's. Under Wentz's story, Miller could possibly have been convicted under Counts I and I11 for purposely and knowingly killing the Duffys. There was also substantial scientific evidence thatwas submitted that further supported the fact that the shotgun had chambered and ejected shells found at the Helena car dealership, the Lounge and the Wortmans' residence. Blood stains on Miller's pants matched the blood of Terrance Duffy. Various glass fragments from the Lounge and the car dealership were found on Miller's person.

### The jury convictedMiller of deliberatehomicide under the felony murder rule meaning they did not believe FJentz's version of the crime. As this Court has held many times over, the jury is the fact finding body in our systemof jurisprudence,and itsdecision is controlling. The jury is free to consider all the evidence presented and topick and choose which of the witnesses it wishes to believe. If sufficient testimony was introduced, as well as exhibits to justify the jury's findings, then its conclusions will not be disturbed unless it is apparent therewas a clear misunderstanding by the jury or that there was a misrepresentation made to the jury. Lucero, supra,693

### P.2d at 513. 

### There is an absence ofmisunderstanding on thepart of the jury and no misrepresentation is alleged by Miller. As the State appropriately points out, it submitted over 1,100 

### pages of testimony elicited from 31 

### separate witnesses and

over 100 

### exhibits. The jurywas free to pick and choose to believe any or all of thismaterial. Sufficient evidencewas submitted to support the District Court's denial of the motions todismiss at the close of the State's case-in-chief.

Failure to ComplyWith Discovery In anticipation of codefendant Wentz taking the stand, counsel for Miller commissioned a private investigator to prepare a report to be used for impeachment during cross-examination. Although the defense was to provide "a list of all papers, documents, photographs, and other tangible objects which the defendant [planned to] use at trial either as evidence or as a source of impeachment," counsel failed to provide the State with the private investigator'sreport. The District Court refused topermitcounsel to examine Wentz with the information contained in the report. Miller contends the investigator's report was attorney work productwithin themeaning ofS 46-15-324,MCA, and therefore not subjectto disclosure. We disagree. The work product doctrine is a qualified evidentiary privilege which reflects the actualities of an adversarial system by extending limited protection to an attorney's efforts onbehalf of a client. Hickmanv. Taylor (1947),329 U.S. 495, 67 S.Ct. 385, 91 L.Ed.2d 451. "~t its core, the work product doctrine shelters the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client's case." United States v. Nobles (1975), 422 U.S. 225, 238, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141, 154. The reality of our legal system demands that the embraces of the protection also extend to agents of the attorney. However, the privilege is not inviolate. State ex rel. Carkulis v. District Court (Mont. 1987), 746

Nor is the scopeof the work product doctrine sobroad as to encompass substantialevidence. There is no doubt that if an attorney uses at triala statementhe obtained and prepared in anticipationof litigation in interrogating or cross examining a witness, the full statement, even though work-product, must be produced at the demand of the other side. [Citation omitted.] By theuse of the statementat trial, the attorney has waived the workproduct protection, since the material in the statement has become substantive evidence. Carkulis, 746 P.2d at 613-614. Counsel's election to use the material contained within the investigator's report clearly constituted a waiver of the work product privilege. His attempt to label the report "impeachment material" is notsufficient to escape discovery. See Hickman, supra, (recognizingthat impeachment and corroboration material is subject todiscovery). In a related argument, Miller contends discovery applies only to exhibits. However, contrary to Miller's assertion, there is no indication that Montana's discovery statutes were designed to limit disclosure to exhibits. Section 5 46-15-323(4), MCA, provides for production of papers and documents "whichhewill use at trial," notmerely those documents thatwill be offered as exhibits. Consistent with the goal of achieving justice, Montana's discovery schemehas inherently rejected the theory of trialby ambush. See, State v. Waters (Mont. 1987), 743 P.2d 617, 44 St.Rep. 705. The purpose of a criminal trial is to ascertain the truth. This aim isbest realized through full disclosure and presentation of the evidence,not surpriseattacks. The investigator's report fell within the scope of 5 46-15-323, MCA, and the State's discovery request. As such,the report should have been provided to the State. The DistrictCourtproperly prohibited use of the report.

DenialofDefendant's Exhibit I The District Court denied Miller's Exhibit 

### I which included diagrams and a written rendition by Miller of his version of the crimes. The State objected to the introduction of the document on the basis that it created "undue influence" on the jury. Miller claims the document

was presented to show that his storywas consistent with the stories he related in November and December of 1986 and showed that Miller did not "concoct" his version. The District Court denied admission of the document. Miller claims this was error.The State did not object to the examination of Miller in regard to the story, nor did it object to any of the subject matter. However, the State did object to the introduction of the exhibit. The version set out on the document was presented once by Miller on the stand. It was then repeated a second and third time by Lorna and Judy Miller. Miller was examined thoroughly by defense counsel and the recitation of his version was we11 before the jury. Further, defense counsel made it clear to the jury that the accountwas the same asMiller told him inDecember. The court was informed by the State that to allow the document to go before the jury caused undue emphasis because it was like "[transcribing] the statements of every witness who testifies [to]have the jury look at them." In essence, the District Court limited repetitious testimony. In State v. Brietenstein (1979), 180 Mont. 503, 591 P.2d 233, we held that the trial court did not abuse its discretionby excluding repetitious testimony under Rule 403. In State v. Short (Mont. 1985), 702 P.2d 979, 42 St.Rep. 1026, we upheld the court's exclusion of tapes that were merely cumulative. Citing, 31A C.J.S. Evidence, § 166. Miller was allowed to inform the jury that his testimonial renditionwas consistent. No substantialrightof Yillerwas affected by the court'sdisallowance of this document. Rule 103,M.R.Evid.

Sufficient Evidence to Support the JurvVerdict

2------ Miller contends the jury'sverdictwas not supportedbv substantial and credible evidence because, again, the only evidence showing Miller was involved in the robberywas the uncorroborated testimony of Wentz. Our discussion of the law and facts under the motions to dismiss issue demonstratesWentz's testimonywasnot the only evidence connectingMiller to the crimes charged. The "test of evidence sufficienttowarrant a directed verdict of acquittal [Miller's relief requested under the motions to dismiss issue] is the same as the test of sufficiency of evidence on appeal, i.e. whether, viewing the evidence in the light most favorable to the State, substantial evidence exists to support averdict of guilty." State 

### v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085. We will not invade theprovince of the jurywhen they

arepresentedwith varying stories. "[Wlhere the evidence is conflicting or doubtful, either as to [whether the witness for the State is an accomplice] or as to corroboration, the court should not invade theprovince of the jury." Statev. Gonyea, supra, 730 P.2d at 426; citing, State v. Smith

(1925), 75 Mont. 22, 27, 241 P. 522, 523. The testwe apply to determine whether the jury's verdict is supported by sufficient evidence is whether,afterviewing the evidence in

a lightmost favorable to the prosecution,any rational trier of fact, the jury could have found the requisite elements beyond a reasonable doubt. State v. McHugh, (Mont. 1985), 697 P.2d 466, 469, 42 St.Rep. 371, 374. We conclude the evidence presented, corroborating, circumstantialand direct,

was sufficient to support the jury's verdict. This evidence is more thoroughly described above in our discussion on the motions todismiss.

Sentencing The District Court sentenced Miller to a term of 75 years forhis involvement in themurder ofTerranceDuffy; 75 years for his involvement in the murder of Marie Duffy; and 20 years for robbery of the Duffys' bar, each term to be served consecutively. Miller contendsthat the imposition ofconsecutive terms in connection with a single "episode"of criminalbehaviorviolates the intent of S 46-18-401(4),MCA. Miller does not contest the 10 year sentencehe received for felony assaultby accountability because itwasnot apart of this "episode." Such an interpretation is in stark contrast to theplain language of the statute,however. Although the compiler's comments suggest that concurrent sentences are generally favored, S 46-18-401(4), MCA, provides that "separate sentences for two or more offenses shall run concurrently unless the court otherwise orders." On its face,the statuteclearly vests theDistrict Court with the discretion to impose consecutive terms regardlessofwhether the criminal acts arose out of a single episode ofmisconduct. Ithas longbeen recognized thatwhen interpretinga statute, [Tlhe intention of the legislaturemust first be determined from the plain meaning of the words used, and if interpretation of the statute can be so determined, the courts may not go further and apply any other means of interpretation. Murphy forL. C. v. State (Mont. 1987), 748 P.2d 907, 908,44 St.Rep. 2030, 2032; State v. Hubbard (1982),200 Mont. 106, 111, 649 P.2d 1331, 1333; Dunphyv. Anaconda Co. (1968), 151 Mont. 76, 438 P.2d 660. We find the District Court acted within itsdiscretion. Miller also contends the District Court improperly designated him a dangerous offender for purposes of parole eligibility. Under Miller's reading of S 46-18-404(1), MCA,

a sentencing court must find that a defendant has been convicted of a crime for which a sentence in excess of one year could have been imposed and he must also represent a substantial danger to society before the court can impose adangerous offender designation. Thisposition is in effect, that a defendant who has not committed a felony within the preceding five years 

### - or is not a danger to society is entitled to a nondangerousdesignation. Again,we find such

a construction at odds with the plain language the legislaturechose to employ. The legislature, in enacting a law, ispresumed tohave understood the ordinary and elementary rules of construction of the English language. State ex rel. Palagi 

### v. Regan

(1942), 113 Mont. 343, 126 P.2d 818. The statute in question,S 46-18-404(1),MCA,provides: 

### (1) The sentencing court shalldesignate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:

(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced the offender was neither convicted ofnor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1year couldhavebeen imposed; and 

### - (b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society. (Emphasis added.) The legislature'suse of the conjunctive "and" clearly indicates an intent to establish twomandatory prerequisites to a nondangerous designation: (1) lack of a felony conviction within the preceding five years; 

### - and (2)a finding that the defendant does not present a substantial danger to society. The court's duty is "simply to ascertain and declare what is in terms or in substancecontained [withinastatute].I' Section 1-2-101, MCA. We will not insert the disjunctive "or" when the legislature chose to employ the conjunctive "and." Such is not the function of this Court. We hold the District Court correctly applied S 46-18-404, MCA

# . In Miller's tenth issue he contends he should be eligible for parole in 171 years under 

### 5 46-23-201(1)(a)

### , MCA. We have no recordbeforeus regarding the determination of parole eligibility for Miller. No argument concerning this issue occurred at the lower court level. Issues raised for the first time on appeal are untimely and will not be addressedby this Court. Section 46-20-104(2),MCA; Statev. Probert (Mont.1986), 719 P.2d 783, 43 St.Rep. 988; Statev. Van Haele (1983),207Mont. 162, 675P.2d 79.

Motion forNew Trial Miller finally contends that the District Court erred in denying his motion for a new trial based on written statements submitted by Wentz toMiller's counsel in June of 1987 that exculpateMiller of the crimes. At the hearing on the motion for a new trial on July 13, 1987,Wentz invoked his Fifth Amendment rights and refused to testify. The court disallowed the letters ruling they were hearsay evidence. However, the District Court did exercise circumspection and stated the following in itsmemorandum attached to the order denying themotion: The Court holds that the WENTZ notes are hearsay and are not admissible under the cited exceptions (Mont.R.Evid. 804). The WENTZ statementsclearly fail the test of credibility and trustworthiness and are blatantly self-serving. Since MILLER'S conviction is on appeal, the Supreme Court will have the opportunity to pass upon the admissibilty of the WENTZ hearsay.Assuming,however, -- that theWENTZ hearsay was admissible. theCourt still would 

### - have denied the request for a new trial. This Court is not going to void a jury verdict, based on a nine-day trial, involving some fifty witnesses and over one hundred exhibits. One of the witnesseswasMILLER himself,andmuch of his testimony was unbelievable, being contradictedby thephysical evidence and common sense and his own reputation for truth and veracity. (Emphasis added.)
The District Court went on to state that Wentz's statements contained no credibility and that Wentz's "dog wouldn't believe him." The court further pointed out that the circumstances surroundingthe drafting of the letterswas suspect because Wentz and Miller had opportunity to communicate with each other inprison and Wentz's "insatiable appetite for the limelight" could have been the motivating

reason for the letters. The court stated the jury did not "believe" Wentz's story as evident by the verdict and to allow for a new trialwould be an abuse of discretion on the court's part. Finally, the court noted that Miller's veracity was questionable because of his violation of the sentencing requirements that he not attempt to gain financially from the events. This statementwas inregard to

a letter Miller wrote to a national tabloid in which Miller proposed to sellhis story. The court closed with the statement: This Defendant's conduct, together with hisprison liaison with WENTZ for the new trial strategy makes a mockery of his characterization of himself as an unwitting, innocent,misled and compelled victim in the events of November 18, 1986.The jury properly rejected that characterization when it foundhim guilty of assault,robbery and a participant in a double homicide. It would be the epitome of judicial arrogance to disturb that verdict on the "new evidence" offered, even if that evidence were admissible, which it isnot. Miller's claim of error is based on two propositions. First, that the District Court erred in disallowing the letters because the Rules of Evidence do not apply in a hearing on a motion for a new trial because it is a summary proceeding. Secondly, Miller argues theguidelines for a new trial, set out in Statev. Greeno (1959), 135Mont. 580, 342 P.2d 1052, were not consideredby the court. Initially,we note exclusion of the two lettersby the DistrictCourt on the grounds of hearsaywas error. However, it was not error on the grounds asserted by Miller. Where a witnesspleads the FifthAmendment and refuses to testify,he is considered unavailable. Rule 804(a)(I),M.R.Evid. This rule is identical to the Federal Rules of Evidence counterpart. The witness unavailable exception to the hearsay rule should have been applied by the District Court. See, U.S. v. Thomas (5th Cir. 1978), 571 F.2d 285, 288. A similar rule has also been applied by this Court. See, Sarsfield v. Sarsfield (1983), 206 Mont. 397, 407-408, 671 P.2d 595, 601. Nonetheless,we find this to be harmless error in light of the court's explanation that a new trial would not be granted even if the material was not hearsay. Technical

errors or defects in rulings on evidence in criminal prosecutions are not grounds for reversal, and in order to allow reversal, the ruling must affect substantial rights. Rule 103,M.R.Evid.; Statev. Daniels (Mont. 1984), 682P.2d 173, 41 St.Rep. 880; State 

### v. Coleman (1978), 177 Mont. 1,579 P.2d 732, appeal after remand, 185 Mont. 299, 605 P.2d 1000, cert. denied, 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177. Further, Miller did not specifically object to the denial of the letters as an exception to hearsay because the witness was unavailable so the District Courtwas unable to consider this technicaldefect. As toMiller's second claim thatGreeno, supra, was not properly considered we note that S 46-16-702,MCA, provides that the District Courtmay grant a new trial "ifrequired in the interest of justice." Miller's motion was based on "new evidence" sent to Miller's counsel and properly presented to theDistrictCourt. Thenew evidencepresented by Millerwas not available at the time of the original trial and therefore

no opportunity existed for itspresentation. Where the District Court is facedwith a determination of the appropriateness of a new trial based on newly discovered evidence, the following requisites must be met: (1) 

# . .. the evidence must have come to the knowledge of the applicant since the trial;

(2) that it was not through a want of diligence that it was not discovered earlier;

(3) that it is somaterial that itwould 

### --- 

### -- robablyproduce a different result upon znother trial; (Fmphasisadded.)

State v. Pease (Mont. 1987), 740 P.2d 659, 665, 44 St.Rep. 1203, 1210;citing Greeno, 342P.2d at 1055. The material presented meets the first two enunciated tests. However, from a review of the evidence presented in the initial trial, the lack of veracity of both Miller and Wentz, and the District Court's ruling that even if presented, he would not grant a new trial,we find that the

### District Court did not abuse its discretion in denying the

new trial. The District Court considered Wentz an unbelievable witness. The jury's verdict indicates they also did not believe Wentz. In State v. Cannon (Mont. 1984), 687 P.2d 705, 712, 41 St.Rep. 1659, 1667, we affirmed the court's denial of a new trial based on new evidence because the evidence presented "an additional inconsistency for considerationby the jury." This is a similar situation. Is the jury to believe Wentz's statements to police officers upon arrest? Is the jury tobelieve Wentz's statementsat the original trial? Is the jury to now believe Wentz's statements in the letters drafted afterhis introductiontoprison societywherehe had opportunity to converse with Miller? The inconsistency is apparent and the submission of these letters cannot be said to be so material as to change the outcome of the jury's verdict in lightofWentz's lack ofveracity. Upon review of the evidence, the record, and the three-factor test enunciated above, althoughnot specifically referred to by the District Court in name but applied in practice, we conclude the District Court did not abuse its discretion indenying the motion for a

### new trial. The jury verdict and judg7;

# ofLd

sentenceare affirmed.

- 

### Justic 

# P

We concur: -I(

# .cZ.G\ 

# mraccP The Honorable C. B. McNeil, District Judge, sitting for Mr. Justice John C. Sheehy

~ist2ic-k Judge, sitting for Mr. JusticeWilliam E. Hunt