NO. 8?-261 

TN THE SUPREME COURT OF THE STATF OF MONTANA 

1988 

THE STATE OF MONTANA, 

Plainti-ff and Respondent, 

-vsKENNETH ALBERT MILLER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County 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., Assistant Attorney General 

Richard J. Llewellyn, County Attorney, Boulder, Montana 

Submitted: March 2, 1988 

Decided: May 4, 1988 

Filed: MAY 4 - 1988 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Kenneth Albert Miller (Miller) appeals his conviction 

by jury trial and denial of his motion 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 felony murder rule, 

20 years for robbery, and 10 years for felony assault by 

accountability. We affirm. 

The issues we are presented with 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 report prepared 

for the defense but not supplied to the State? 

5. Did the District Court err in disallowing 

introduction of Exhibit 1 which portrayed 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 a new trial? 
10. Should Miller be eligible for parole in 174 years? 

Miller was charged by amended information with four 

counts of deliberate 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, he was convicted by a jury of deliberate homicide under 

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 the motion 

for new 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 

up his 12-guage shotgun and they purchased more beer. 

Miller and Wentz then proceeded south from Helena. 

After hunting near Clancy for awhile, they went to Tings bar, 

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 

Lounge bar. During this portion of the trip, Wentz fired his 

shotgun four or five times out the window of Miller's white 

1968 Volkswagen. 

Once at the Lounge, Miller and Wentz drank tequila and 

received instructions to the hot springs from Terrance Duffy, 

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 unaware 
of what Wentz was doing due to loud rock music from the car 

stereo. Wentz, with a shotgun, was observed by Bill Wortman, 

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 the door when Wentz pointed the gun at 

him. 

Wentz testified that he and Miller were 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 

Volkswagen heading 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 drove back 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 the bar. According to Wentz, as Mrs. Duffy came into 
the bar, Miller reached around him and pulled the trigger 

while Wentz held the gun. 

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 the bar next to a 

beam and did not see the actual shooting of Duffy because he 

was on his knees facing the wall. 

After the shooting, Miller stated Wentz ordered him to 

retrieve the casing and threatened to shoot Miller 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 to Wentz. The two returned to 

the Volkswagen and proceeded to Helena. Miller said Wentz 

claimed he killed 32 people in California, had made it 34 and 

could make it 35. 

The local Boulder authorities were notified of the 

homicides at approximately 10:OO p.m. The Helena authorities 

were notified by an all points bulletin. Upon returning to 

Helena, Miller and Wentz 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 that Wentz and Miller entered the apartment and 

Wentz told her two people were down in Boulder and Miller had 

shot them. At trial, inconsistent testimony was presented 

that Wentz told Harding he had shot the Duffys after Mr. 

Duffy and he had argued. 

Wentz grabbed clothes and additional ammunition from 

the apartment. He and Miller then drove to a local car wash, 

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 the police. 

Richey stated Miller did what Wentz told him. 

After Wentz and Miller left Tammy Harding's residence 

the first time, she telephoned her father and he had his wife 

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 "the black Chevy pickup coming first into the driveway." 

With Miller driving the Volkswagen and Wentz driving the 

pickup, the two did return to the circular driveway next to 

Harding's apartment but 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 through Tarnmy Harding's windows. The two individuals 

fled with Hampton in pursuit ultimately returning to the car 

wash. 

Hampton testified that he stopped Wentz 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 car wash. 

Miller was stopped shortly thereafter by officer Frank Melton 

who ordered Miller to go "down into a prone position on the 

ground" at which time keys to the stolen Jeep fell out of his 

pocket. These keys were found underneath Miller but he 

stated they were not his. Miller denied any knowledge as to 

why he was stopped. 

Wentz, after being read his Miranda rights, made 

several statements to the arresting officers and officers at 
the Lewis and Clark County Jail to the effect that Miller had 

done the shootings. Wentz also gave a recorded statement to 

Jefferson County authorities. Miller denied that he was 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 the motion for a new trial, the 

District Court disallowed the letters saying they were 

hearsay and even if they were not, the court would not 

overturn the jury's decision. 

Motion to Change Venue 

Miller contends the District Court erred in denying his 

motion to change venue. This motion was properly filed prior 

to trial and contained an affidavit and copies of newspaper 

articles about the murders. 

Miller claims that an article that appeared in the 

December 4, 1986 Helena Independent Record, with a picture 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 a video tape from Helena's KTVH television station of the 

motion to change venue hearing on November 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 Jefferson County. 
Section 46-13-203(1), MCA, provides that a defendant 

"may move 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), 188 Mont. 397, 403-407, 614 P.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 amount of publicity but 

rather to whether the publicity is of sufficient inflammatory 

nature to generate a widespread belief among the community of 

guilt. This inflammatory nature must be proven by the 

defendant who alleges denial of a fair trial. See, State v. 

Holmes (1983), 207 Mont. 176, 181, 674 P.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 discretion by 

the trial court. State v. 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 the proof 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 reasonable 
apprehension 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 substantial and 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 affidavit went beyond 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 information gathered 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 trial was impossible. 

The defense made no inquiry at voir dire as to whether 

any of the jurors had been influenced by the articles. There 

was nothing established in voir 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), 189 Mont. 407, 423, 616 P.2d 341, 350; State v. Board 

(1959), 135 Mont. 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 interferes with 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 jury knew one or more 

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, " [klnowledge on the part 

of jurors is not sufficient and cannot be equated with 

prejudice." Smith, supra, 715 P.2d at 1309. 

We have approved of the use of voir dire to demonstrate 

prejudice. State v. Nichols (Mont. 1987), 734 P.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 

people were removed because they expressed prejudice, we held 

that the District Court had not abused its discretion in 

denying a motion for a change of venue. 

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 

can be 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 the defendant. 

Miller argues that federal courts only require a 

showing of publicity that "so pervades the proceedings as to 

create a 'carnival atmosphere'" and defendant does not have 

to show identifiable prejudice. Sheppard v. 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. State of Louisiana (1963), 373 U.S. 723, 83 S.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 (11th Cir. 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. State v. Steffans (1981), 195 Mont. 395, 636 P.2d 

836; State v. Bubnash (1963), 142 Mont. 377, 382 P.2d 830. 
Limitation of Character Evidence Pertaining to Wentz 

Miller claims that the District Court erred in 

disallowing Miller from presenting evidence of Wentz's 

character through the testimony of Chester Richey, who worked 

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 of no assistance. 

Miller asserts the evidence to be solicited from Richey 

would impeach Richey's statement that he was 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 of proof. Counsel for Miller stated that he was going 

to present two statements involving Wentz's claim "about 

shooting niggers" and a comment that Wentz "was going to use 

the shotgun to blow trees out of 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. Palmer v. McMaster (1891), 10 Mont. 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 is no statement by Miller here as to 
what facts were to be proven or that an alternative manner 

would be less objectionable. 

The statements that Miller attempted to present to the 

jury were 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-examination of Wentz himself that Wentz was a member of 

the Arayan Brotherhood, a white supremacist organization. 

Although not allowed to impeach Richey directly on the stand 

at the time he wanted, 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. State v. 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, 505 P.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 Duffys which 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 felony murder 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 to dismiss Count VI 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 to dismiss is conditioned upon "insufficient evidence" 

to support a finding of guilty. The motion "should be 

granted only where there is no 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 State v. White 

Water, supra, 634 P.2d at 638. 

In State v. Roberts (1981), 633 P.2d 1214, 1218-1219, 

38 St.Rep. 1551, 1556, we quoted the language of Jackson v. 

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 

sufficient evidence stating: 

[Tlhe relevant question is whether 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 reasonable doubt. 

Miller argues that insufficient evidence was presented to 

support any of the above stated Counts. We disagree and find 

that the District Court did not abuse its discretion in 

denying the motions to dismiss. 
Miller argues no corroborating evidence existed and 

therefore Wentz'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 (5 45-2-301, 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, 'unaided by 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, State v. 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 

against defendant. State v. 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 evidence may be circumstantial and 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 the 
felonious assault at the Wortman residence prior to the 

testimony of Wentz. 

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's bar in Jefferson City. 

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 

shortly after 9:15 p.m. that evening. Gunshots were heard by 

Fred May, an employee at the Montana 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 that was 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 should blow up the stolen vehicles. 

Chester Richey identified Miller and Wentz together 

when the two returned to the local car dealership to get 

Miller's Volkswagen. 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 never been to Boulder 

and asked again why he was detained. 

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 actual quote of 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 active -- art in anv overt criminal acts 

-- 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, 683 P.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 assault of 

Billy Wortman, in the robbery and murder of the Duffys, and 

even, although the jury did not so find, that Miller had the 
opportunity and motive to purposely and knowingly commit 

deliberate homicide. 

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 

sufficient to support a conviction. Roberts, supra, 633 P.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 in a case based solely on circumstantial evidence, 

the facts and circumstances must not only be entirely 

consistent with the theory of guilt, but must 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 that was 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 convicted Miller of deliberate homicide 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 

system of jurisprudence, and its decision 

is controlling. The jury is free to 

consider all the evidence presented and 

to pick 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 there was 

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 of misunderstanding on the part 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 jury was free to pick and choose to 

believe any or all of this material. Sufficient evidence was 

submitted to support the District Court's denial of the 

motions to dismiss at the close of the State's case-in-chief. 

Failure to Comply With 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's report. The District Court refused to permit 
counsel to examine Wentz with the information contained in 

the report. Miller contends the investigator's report was 

attorney work product within the meaning of S 46-15-324, MCA, 

and therefore not subject to 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 on behalf of a client. Hickman v. 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 scope of the work product doctrine so broad 

as to encompass substantial evidence. 

There is no doubt that if an attorney 

uses at trial a statement he obtained and 

prepared in anticipation of 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 the use of the statement at 

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 not 
sufficient to escape discovery. See Hickman, supra, 

(recognizing that impeachment and corroboration material is 

subject to discovery). 

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 "which he will use at trial," not merely 

those documents that will be offered as exhibits. Consistent 

with the goal of achieving justice, Montana's discovery 

scheme has inherently rejected the theory of trial by 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 is best realized through full disclosure and 

presentation of the evidence, not surprise attacks. 

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 

District Court properly prohibited use of the report. 

Denial of Defendant'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 story was 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 

account was the same as Miller told him in December. 

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 

discretion by 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 

rendition was consistent. No substantial right of Yiller was 

affected by the court's disallowance of this document. Rule 

103, M.R.Evid. 

Sufficient Evidence to Support the Jurv Verdict 2 ------ 

Miller contends the jury's verdict was not supported bv 

substantial and credible evidence because, again, the only 

evidence showing Miller was involved in the robbery was the 

uncorroborated testimony of Wentz. Our discussion of the law 

and facts under the motions to dismiss issue demonstrates 
Wentz's testimony was not the only evidence connecting Miller 

to the crimes charged. 

The "test of evidence sufficient to warrant 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 a verdict of guilty." 

State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 

1085. We will not invade the province of the jury when they 

are presented with 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 the province of the jury." State v. 

Gonyea, supra, 730 P.2d at 426; citing, State v. Smith 

(1925), 75 Mont. 22, 27, 241 P. 522, 523. The test we apply 

to determine whether the jury's verdict is supported by 

sufficient evidence is whether, after viewing the evidence in 

a light most 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, circumstantial and direct, 

was sufficient to support the jury's verdict. This evidence 

is more thoroughly described above in our discussion on the 

motions to dismiss. 

Sentencing 

The District Court sentenced Miller to a term of 75 

years for his involvement in the murder of Terrance Duffy; 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 contends that the imposition of 
consecutive terms in connection with a single "episode" of 

criminal behavior violates the intent of S 46-18-401(4), MCA. 

Miller does not contest the 10 year sentence he received for 

felony assault by accountability because it was not a part of 

this "episode." Such an interpretation is in stark contrast 

to the plain 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 statute clearly vests the District 

Court with the discretion to impose consecutive terms 

regardless of whether the criminal acts arose out of a single 

episode of misconduct. It has long been recognized that when 

interpreting a statute, 

[Tlhe intention of the legislature must 

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 for L. 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; Dunphy v. Anaconda Co. (1968), 151 

Mont. 76, 438 P.2d 660. We find the District Court acted 

within its discretion. 

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 a 
dangerous offender designation. This position 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 nondangerous designation. Again, we find such 

a construction at odds with the plain language the 

legislature chose to employ. 

The legislature, in enacting a law, is presumed to have 

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 shall designate 

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 of nor incarcerated 

for an offense committed in this state or 

any other jurisdiction for which a 

sentence to a term of imprisonment in 

excess of 1 year could have been 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's use of the conjunctive "and" clearly 

indicates an intent to establish two mandatory 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 substance contained [within a 
statute] .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 record before us 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 

addressed by this Court. Section 46-20-104(2), MCA; State v. 

Probert (Mont. 1986), 719 P.2d 783, 43 St.Rep. 988; State v. 

Van Haele (1983), 207 Mont. 162, 675 P.2d 79. 

Motion for New Trial 

Miller finally contends that the District Court erred 

in denying his motion for a new trial based on written 

statements submitted by Wentz to Miller's counsel in June of 

1987 that exculpate Miller 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 its memorandum attached to the order 

denying the motion: 

The Court holds that the WENTZ notes are 

hearsay and are not admissible under the 

cited exceptions (Mont.R.Evid. 804). The 

WENTZ statements clearly 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 the WENTZ hearsay 

- was admissible. the Court 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 

witnesses was MILLER himself, and much of 

his testimony was unbelievable, being 

contradicted by the physical 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 surrounding the drafting of the letters was 

suspect because Wentz and Miller had opportunity to 

communicate with each other in prison 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 trial would 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 statement was in regard to 

a letter Miller wrote to a national tabloid in which Miller 

proposed to sell his story. 

The court closed with the statement: 

This Defendant's conduct, together with 

his prison 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 found him 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 is not. 

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 the guidelines for a new 

trial, set out in State v. Greeno (1959), 135 Mont. 580, 342 

P.2d 1052, were not considered by the court. 

Initially, we note exclusion of the two letters by the 

District Court on the grounds of hearsay was error. However, 

it was not error on the grounds asserted by Miller. Where a 

witness pleads the Fifth Amendment 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.; State v. Daniels (Mont. 1984), 682 P.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 Court was unable to 

consider this technical defect. 

As to Miller's second claim that Greeno, supra, was not 

properly considered we note that S 46-16-702, MCA, provides 

that the District Court may grant a new trial "if required in 

the interest of justice." Miller's motion was based on "new 

evidence" sent to Miller's counsel and properly presented to 

the District Court. The new evidence presented by Miller was 

not available at the time of the original trial and therefore 

no opportunity existed for its presentation. 

Where the District Court is faced with 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 so material that it -- would 

robably produce a different result upon 

znother trial; (Fmphasis added.) 

State v. Pease (Mont. 1987), 740 P.2d 659, 665, 44 St.Rep. 

1203, 1210; citing Greeno, 342 P.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 

consideration by the jury." 

This is a similar situation. Is the jury to believe 

Wentz's statements to police officers upon arrest? Is the 

jury to believe Wentz's statements at the original trial? Is 

the jury to now believe Wentz's statements in the letters 

drafted after his introduction to prison society where he 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 light of Wentz's lack of veracity. 

Upon review of the evidence, the record, and the 

three-factor test enunciated above, although not specifically 

referred to by the District Court in name but applied in 

practice, we conclude the District Court did not abuse its 

discretion in denying the motion for a new trial. 

sentence 

The 

are 

jury 

affirmed. 

verdict and judg7; of

- 

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. Justice William E. Hunt