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No. 97-705 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

2000 MT 51N 

STATE OF MONTANA, 

Plaintiff and Respondent,

v.

DONALD G. WHITTECAR,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula,

The Honorable John S. Henson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William Boggs, Attorney at Law, Missoula, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; John Paulson,

Assistant Attorney General; Helena, Montana

Fred Van Valkenburg, Missoula County Attorney, Missoula, 

Montana 

Submitted on Briefs: February 3, 2000 

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Decided: February 29, 2000

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court. 

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating 

Rules, the following decision shall not be cited as precedent but shall be filed as a public 

document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Appellant Donald G. Whittecar (Whittecar) was charged with one count of felony theft 

and one count of felony theft, common scheme. Upon trial by jury, Whittecar was found 

guilty on both counts. Whittecar appeals from the judgment of conviction. We affirm.

¶3 Whittecar raises three issues on appeal:

¶4 1. Was Whittecar denied his right to effective assistance of counsel as the result of his 

attorney's conduct during voir dire?

¶5 2. Did the District Court properly deny Whittecar's motion to sever the two counts of 

theft?

¶6 3. Did the District Court properly deny Whittecar's motion to exclude other crimes 

evidence?

¶7 In September of 1994, Whittecar brought a wrecked Mercedes automobile to the Blue 

Ribbon Auto Body Shop in Missoula. Blue Ribbon gave Whittecar an estimate of about 

$2,600. Whittecar left the car with Blue Ribbon for about six months when he called and 

indicated that he had sufficient funds and that Blue Ribbon should go ahead with the 

repairs. Blue Ribbon completed the repairs and advised Whittecar that the car was ready in 

early May 1995 and that the bill came to $2,653. Whittecar gave Blue Ribbon $1,500 in 

cash and a check, post-dated a week in advance for May 16, 1995, for the balance of 

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$1,153. Blue Ribbon released the car to Whittecar. The check was subsequently returned 

from the bank marked "Account Closed." The Blue Ribbon office manager was advised by 

the bank that the account had been closed since April of 1995. Bank records indicated that 

the account was closed in April of 1995 with a negative balance. 

¶8 The facts with regard to Count II of the Amended Information show that in late August 

of 1996, Whittecar bought an AM-FM tuner, an amplifier and two speakers from Fred 

Downing, Jr. in Missoula. Whittecar paid for the stereo system with a check dated 

September 3, 1996 in the amount of $289 and asked Downing to hold the check for a 

couple of weeks. Downing waited three weeks and then deposited the check. It was 

marked "Account Closed." The bank records indicated that the account had been closed in 

August 1996 and that the bank president had written to Whittecar on August 8, 1996, to 

inform him that the account was being closed and that any checks presented after August 

16 would be returned "Account Closed."

DISCUSSION

¶9 1. Was Whittecar denied his right to effective assistance of counsel as the result of his 

attorney's conduct during voir dire?

¶10 During the voir dire, the prosecutor asked the prospective jurors whether any of them 

had ever had experiences with bad checks. Six of the prospective jurors indicated that they 

had had experiences with bad checks in the course of their employment. After briefly 

discussing these experiences, the prosecutor twice asked whether any of these experiences 

would make it difficult for the panelists to maintain an open mind and give Whittecar a 

fair trial. The transcript shows that none of the panelists responded to these inquiries. Four 

of the six panelists having experience with bad checks were seated on Whittecar's trial 

jury. 

¶11 Whittecar argues on appeal that his trial counsel was ineffective for failing to inquire 

of these jurors further and thereby develop challenges for cause. Whittecar asserts that "no 

such inquiry was made or attempted by counsel, who simply abrogated his participation in 

the voir dire proceedings." The record, however, belies this assertion. Rather, defense 

counsel, during his portion of the voir dire, asked whether any of the prospective jurors 

with bad check experience believed the experiences would impair their judgment and 

affect their ability to give Whittecar a fair trial. Defense counsel inquired further as to 

whether the panelists were willing to listen to the facts and to hear the entire case before 

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rendering a judgment, even if they had previous bad check experience. Again, no panelists 

expressed any reservations about their ability to sit and exercise impartial judgment. 

¶12 Section 46-16-115(2)(j), MCA, allows a defendant to challenge a prospective juror for 

cause if the juror has a state of mind that would prevent the juror from acting with entire 

impartiality. The prospective juror becomes disqualified only when he or she has formed a 

fixed opinion on the guilt or innocence of the defendant and is unable to render a verdict 

based solely on the evidence presented at trial. See Great Falls Tribune v. District Court 

(1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120. 

¶13 Whittecar relies on our decision in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 

57, in arguing that defense counsel should have made further inquiry. In Chastain, we 

concluded that defense counsel's failure to take steps to prevent the presence on the jury of 

two jurors who may not have been able to fairly serve amounted to ineffective assistance 

of counsel. Chastain, 285 Mont. at 65-66, 947 P.2d at 60. In that case, two prospective 

jurors had expressed reservations about their ability to judge the child sexual assault case 

fairly. One of the panelists indicated strong feelings about an incident involving his little 

sister and said that his feelings could taint his judgment against the defendant. The other 

stated that accounts of such incidents evoke strong feelings in her which might impair her 

judgment. Chastain, 285 Mont. at 63-64, 947 P.2d at 59. This Court determined that 

counsel was ineffective for failing to make further inquiry as to whether the panelists 

could set aside their feelings and render a fair verdict. Chastain, 285 Mont. at 65, 947 P.2d 

at 60.

¶14 Chastain is clearly distinguishable. The record in the present matter reveals no 

grounds for disqualification and no reason to further inquire about the panelists' 

experiences with bad checks. Each of the individuals in question indicated an ability and 

willingness to render a verdict based solely on the evidence. No one expressed any 

opinion about Whittecar's guilt or innocence or any reservations about the presumption of 

innocence to which Whittecar was entitled. Cf. State v. DeVore, 1998 MT 340, 292 Mont. 

325, 972 P.2d 816 (holding that district court abused its discretion in ignoring juror's 

statement that defendant must be guilty of something). 

¶15 We conclude that Whittecar has failed to demonstrate that his attorney's performance 

during voir dire was deficient in any manner or that his defense was prejudiced by his 

attorney's acts or omissions. 

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¶16 Whittecar also contends that his counsel was ineffective for "doing nothing" when, 

during the early stages of voir dire, a prospective juror disclosed that he had a judgment 

against Whittecar. The State points out that the very purpose of voir dire is to uncover the 

existence of such matters so that interested jurors can be excused for cause. We note that 

that is precisely what occurred in this case. That is, upon hearing that the panelist had a 

judgment against Whittecar, the District Court immediately excused the juror without 

objection or comment from either side. We conclude that defense counsel was not 

ineffective for not taking some further, unspecified, action.

¶17 2. Did the District Court properly deny Whittecar's motion to sever the two counts of 

theft?

¶18 Whittecar concedes the joinder of counts one and two of the Amended Information 

was proper since the two counts are similar. However, he contends that the court abused 

its discretion in denying his motion to sever.

¶19 A defendant seeking severance under § 46-13-211(1), MCA, bears the burden of 

proving that joinder of the charges is prejudicial. It is not sufficient that he prove some 

prejudice or that he stands a better chance of acquittal if separate trials are held. State v. 

Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 227 (citation omitted). To satisfy his 

burden, the defendant must prove that the prejudice is so great as to prevent a fair trial. 

Richards, 274 Mont. at 188, 906 P.2d at 227 (citation omitted). "As a result of the 

defendant's burden of proof, the strong pressure in favor of joinder of charges exerted by 

considerations of judicial economy and the deference afforded trial courts, we seldom 

reverse a trial court's denial of a criminal defendant's motion to sever." State v. Martin 

(1996), 279 Mont. 185, 192, 926 P.2d 1380, 1385 (citation omitted). 

¶20 Whittecar has not shouldered his burden of proving that the prejudice was so great as 

to prevent a fair trial. He alleges in conclusory fashion that the joinder prejudiced him in 

three ways: a person facing multiple charges may be considered to be a "bad man;" proof 

of guilt on one count may be used to convict on a second count even though the proof 

would be inadmissible at a separate trial on the second count; and other crimes evidence 

was used against Whittecar on Count II even though it had only been noticed by the State 

as to Count I. Finally, he asserts that there were no interests which were furthered by 

joinder since none of the transactions involved had any witnesses, exhibits or evidence in 

common and none were related in motive. 

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¶21 In State v. Martin, we concluded that Martin had not established that prejudice had 

occurred and that a "bald assertion" that the multiple charges and overlapping evidence 

invited the jury to convict him is insufficient to meet his burden of demonstrating 

prejudice. Martin, 279 Mont. at 192, 926 P.2d at 1385. In similar fashion, Whittecar's 

conclusory assertions that the two-count information caused the jury to consider him a 

"bad man," accumulate evidence against him on the two counts, and apply other crimes 

evidence from one count to the other are insufficient. 

¶22 In addressing the question of severance, the District Court noted that Counts I and II 

were both premised upon Whittecar's obtaining services and goods by issuing checks on 

closed accounts. The court concluded that the allegations of the two counts showed an 

underlying scheme to defraud and were thus related and should be tried together. 

Whittecar has failed to show that the District Court abused its discretion in denying his 

motion to sever.

¶23 3. Did the District Court properly deny Whittecar's motion to exclude other crimes 

evidence?

¶24 In April of 1996, the State gave notice of intent to introduce evidence of other crimes 

pursuant to Rule 404(b), M.R.Evid. In particular, the State proposed to prove that in 1993, 

Whittecar, in connection with a car trade, tendered a post-dated check for $3,000 written 

on a closed account. With the help of law enforcement authorities, the matter was resolved 

when Whittecar returned the car and the bad check charge which had been filed against 

him was dismissed. In July 1996, the District Court, over Whittecar's objection, granted 

the State's motion to use this "other crimes" evidence. 

¶25 In October 1996, the State filed an Amended Information adding Count II, a second 

count of felony theft, common scheme, again involving a post-dated check on a closed 

account. Whittecar concedes that the District Court was correct in concluding that the first 

three factors of the Matt four-part test were satisfied; that is, the evidence was similar to 

the transaction charged, it was not too remote in time, and it was relevant to prove absence 

of mistake or accident. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. However, 

Whittecar argues that once the court granted the State permission to amend the 

Information and add a second count of theft, the situation changed; the second count was, 

in effect, "other crimes" evidence, added to negate any attempt to show mistake or 

accident. Whittecar contends, "Once this count was added, any asserted need to prove the 

1993 transaction evaporated, and at this point element four [is the probative value 

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outweighed by unfair prejudice] of the Matt test was clearly no longer satisfied." 

¶26 Our review of the record indicates that Whittecar did not ask the District Court to 

reconsider its July 1996 ruling on the other crimes evidence after it allowed the State to 

amend the Information, three months later in October 1996. Thus the question of whether 

the addition of Count II vitiated any rationale for allowing the other crimes evidence in the 

first instance was never presented to the trial court. Accordingly, the issue may not be 

raised for the first time on appeal. See Hislop v. Cady (1993), 261 Mont. 243, 250, 862 

P.2d 388, 392 (citation omitted).

¶27 The judgment of the District Court is affirmed. 

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER 

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