IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

BARRON SCOTT MARTIN, Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD: For Appellant: Carl S. White, Attorney at Law, Havre, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General; Helena, Montana David G. Rice, Hill County Attorney; Anders T. Berry, Deputy Hill County Attorney; Havre, Montana Submitted on Briefs: May 8, 1997 Decided: June 9, 1997 Filed:Justice Jim Regnier delivered the opinion ofthe Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited as precedent and shall be published by its filing as a public document with the Clerk ofthe Supreme Court and by a report of its result to State Reporter Publishing Company and West Publishing Company. Barron Scott Martin was charged by information with attempted deliberate homicide by accountability. Martin moved to exclude the testimony of all witnesses not listed on the informationand all exhibits not listed on a timely exhibit list. The Twelfth Judicial District Court, Hill County, allowed the witnesses to testify and the exhibits to be introduced into evidence. Martin was convicted by a jury of the lesser offense of aggravated assault by accountability. Martin appeals from these two District Court rulings. We affirm. The issue on appeal is whether the District Court erred in denying Martin's motion to exclude the State's witnesses and exhibits on the grounds that the State failed to list its witnesses and exhibits on the information and failed to timely notify Martin of its witnesses prior to trial. FACTUALBACKGROUND On April 

### 19, 

### 1996,the Deputy County Attorney for Hill County filed a motion for leave to file an information charging Barron Scott Martin with the felony offense of attempted deliberate homicide, or in the alternative, felony assault; burglary, or in thealternative, felony theft; and misdemeanor theft. Later, at the arraignment on April 23, Martin appeared with his attorney and waived the reading of the information. An omnibus hearing was held on May 14, 1996. The District Court and the parties discussedthe whereabouts ofthe victim, David Azure. At the hearing, the court inquired of defense counsel whetherhe needed anything andhe replied, "Notthat I'm aware of. I've had

access to all thephysical evidence, the photographs, and 

### I believe all the reports." The court then asked whether the defendant wanted to interpose a defense of justifiable use of force. The defense counsel said "yes," and indicated that he would call witnesses to support that defense, including, he stated, "All of the State's listed witnesses, the three juvenile co-defendants, and I believe there's a woman named Stromburg who would be a witness." The District Court then set a July 

### 5 deadline for both the prosecution and the defense to identify witnesses by providing each other with a witness list. The State failedto file a supplemental witness list on July 5, 1996,as required by the District Court. On July 11, the Statemoved to endorse five witnesses, without objection by the defendant. On July 17,the Statemoved to endorse one additional witness, againwithout objectionby the defendant. On July 

### 26, twenty-one days after its witnesses and exhibit list

was due, the State filed and mailed defense counsel a notice of witnesses and exhibits. Because the notice was mailed on a Friday, it did not arrive in defense counsel's mail until Monday, July 29, less than twenty-four hours before trial. On July 29, the State filed 

### asupplemental notice of witnesses and exhibits. That notice was also mailed to defense counsel who did not receive it until after one fill day of trial. A jury trial commenced on July 30, 1996. Following the voir dire and opening statements, defensecounsel requested he be allowed to make a motion outside the presence of the jury. At that time, he moved to exclude all of the State's witnesses who were not endorsed on the information. Defense counsel stated he was objectingto each witness not previously endorsed and every exhibit becausehe was not notified prior totwenty-four hours before trial. A witness list was not on the information, as requiredby 

## 5 46-11-401(2),MCA. The county attorney stated for the record that his copy ofthe information had the witness list attached, however, defense counsel said that the witness list was not attached to his. In the district court file, the witness list did appearwith the motion, rather than on the information. The District Court noted that $46-11-401, MCA, requires that an information must include a list ofwitnesses, ifknown, but also states that matters of form which do not prejudice will

not cause an informationto be dismissed. A discussion was held regarding a continuance. The State conceded that it could not prove its case without the witnesses and exhibits objectedto. The county attorney stated he would not object to 

### a continuance, pursuant to 

## 5 46-15-329, 

### MCA, to allow defense counsel to interview the witnesses. However, defense counsel made no request for a continuance. Over Martin's objection, the District Court determined there would be no prejudice to the defense and allowed the witnesses to testify and exhibits to be introduced into evidence.Martin was convicted by the jury of the lesser offense of aggravated assault by accountability. DISCUSSION Did the District Court err in denying Martin'smotion to exclude the State's witnesses and exhibits on the grounds that the State failed to list its witnesses and exhibits on the information and failed to timely notify Martin of its witnesses prior to trial? Discretionary rulings of a district court include trial administration issues, post-trial motions, and similar rulings. MontanaRail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. This Court reviews a district court's evidentiary rulings to determine whether therehas been an abuse of discretion. Cartwright v. Equitable Life Assurance (1996), 276 Mont. 1, 19,914P.2d 976,987. Martin seeksreversal ofhis conviction and the dismissal ofthe information charging him because of the State's failureto attach alist ofwitnesses and exhibits on the information, allegedly without good cause. The State argues that the failure to attach a list of witnesses and exhibits on the informationwas inadvertent and that the substantialrights ofMartin were not prejudiced by the State's error. Section 46-1 1-401,MCA, provides in relevant part: 

### Form of 

### charge. (1) The charge must be in writing and in the name of the state or the appropriate municipality and must specify the court in which the chargeis filed.The charge must be a plain, concise, and definite statement of the offense charged, including the name ofthe offense, whether the offense is a misdemeanor or felony, the name of the person charged, and the time andplace ofthe offense as definitely as can be determined. The charge must state for each count the official or customary citation ofthe statute, rule, regulation, or other provision of law that the defendant is alleged to have violated. (2) If the charge is by information or indictment, it must include endorsedon the information or indictment the names ofthe witnesses for the state, ifknown. (6) A charge may not be dismissed because of a formal defect that does not tend to prejudice a substantial right ofthe defendant. Martin argues that the failure of the District Court to exclude the witnesses and exhibits that he objected to amounted to prejudice against him. Martin asserts that the number of potential witnesses and exhibits was so great that defense counsel had no reasonable means of anticipating what witnesses or exhibits might be used during the trial. Without proper notice, Martin contends, allowing the State to introduce the witnesses and exhibits objected to resulted in an unfair surprise against him. The Statecounters that ifthe information was incomplete pursuant to 

## 5 46- 11-401(2), MCA, Martin should have raised an objection to it at the omnibushearing on May 14, 1996, pursuant to 

## 5 46-13-101(2), MCA. Under 

## 5 46-13-101(1) and (2),MCA, the failure of a party to raise an objection that couldbe made at the omnibushearing constitutes a waiver of that objection. The State argues that defensecounsel waited until the trial to raise the issue when he believed thatjeopardy had attached to constitute reversible error. Finally, the State concludes that the rights ofMartin were not substantially prejudiced by the District Court's failureto exclude the witnesses and exhibits objected tobecause Martin knew or should have reasonably known who the Statewould call to testify against him.If Martin felt prejudiced at trial, both the District Court and the county attorney had

no objectionto a continuance. However, defense counsel did not request a continuance and proceeded with the trial. The District Court observed that the affidavit in support of leave to file information mentions the witnesses who were participants, as well as the police officers, that defense counsel for Martin had been provided with all ofthe statements, and that the victim had been arrested and was available to the defense. The District Court also stated that Martin had received actual notice of all the witnesses. Finally, the District Court determined that Martin would not be prejudiced by allowing the witnesses to testify and the exhibits to be introduced. This Court concludes that the District Court did not abuse its discretion in denying Martin's motion to exclude all witnesses and exhibits that the State failed to attach on the information served upon him. In 

### State v. 

### Haag (1978), 176 Mont. 395, 578 P.2d 740, we were confronted with a similar casewhere a county attorney failed to include a list ofknown witnesses on the information. In 

### Haag, the defendant notified the State at the arraignment that the informationhad not included a witness list, but the State failed to produce one until the day of trial. This Court stated: If a county attorney failsto list known witnesses on an Information, we cannot say he necessarily lacks good cause to add the witnesses, if he does so promptly and in good faith afterthe omission is brought to his attention. Nor do we hold that a defendant who is aware that there are no witnesses listed on an Informationmay remain silentand fail torequest a list ofwitnesses, thereby hoping to cultivate reversible error through the county attorney's unnoticed inadvertence.Haag, 176Mont. at 403, 578 P.2d at 745. In this case, however, defensecounsel failedtobring the errorto the county attorney's attention. In fact, it appears that defense counsel was "hopingto cultivate reversible error" by failing to notify the county attorney that a list of witnesses and exhibits was not on the information. Defense counsel could have notified the county attorney and objected to the information at the omnibus, but failed to do so. Under 

## 5 46-13-101(2), MCA, a failure to make this objection constitutes a waiver ofthe objection. We affirm.

We Concur: 

# HJune 9. 1997

CERTIFICATE OF SERVICE I hereby certify that the following certified order was sent by United States mail, prepaid, to the following named: CARL S. WHITE Attorney at Law 412 SECOND AVENUE HAVRE MT 59501 Hon. Joseph P. Mazurek, Attorney General i I



### .. i-~-+- Patricia Jordan, Assistant Justice Building 

## 1 

# k

Helena MT 59620 ANDERS T. BERRY DEPUTY HILL COUNTY ATTORNEY P 0 BOX 500 HAVRE MT 59501-0500

ED SMITH CLERK OF THE SUPREME COURT STATE OF MONTANA