No. 94-213

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Appellant,

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Joseph P. Mazurek, Attorney General; John

Paulson, Assistant Attorney General, Helena, Montana

Mike Salvagni, Gallatin County Attorney; Gary Balaz,

Deputy County Attorney, Bozeman, Montana

For Respondent:

John M. Kauffman, Gallatin County Public Defender,

Bozeman, Montana

Filed:

Submitted on Briefs: January 26, 1995

Decided: March 17, 1995
Chief Justice J. A. Turnage delivered the Opinion of the Court.

The State of Montana appeals the decision of the Eighteenth

Judicial District Court, Gallatin County, granting defendant Ernest

Pinkerton's motion to dismiss. We reverse.

The issue is whether the District Court erred in granting

Ernest's motion to dismiss the two-count information filed against

him.

On July 16, 1993, the Gallatin County Attorney's Office filed

an affidavit of probable cause and a motion for leave to file an

information charging Ernest with misdemeanor domestic abuse in

violation of 5 45-5-206, MCA, and felony assault in violation of

§ 45-5-202, MCA. The affidavit of probable cause was based on

statements made by Ernest's wife, Nadeen Pinkerton. Nadeen

initially made an oral statement to a law enforcement officer the

night of the incident and later supplied a written statement

containing similar allegations. Nadeen subsequently supplied the

Gallatin County Sheriff's Office with a second written statement in

which she recanted crucial allegations that she had made in her

previous oral and written statements.

Nadeen's initial statements alleged the following facts. On

the evening of July 3, 1993, Ernest and Nadeen were drinking at the

Fifth Ace Saloon in Gallatin Gateway. Nadeen and Ernest got into

an argument and Ernest left the bar on foot. Nadeen also left the

bar, got in her vehicle, and proceeded home. Nadeen picked up

Ernest on the way, and the two drove home together. Once home, the

couple continued to argue. During the argument, Nadeen alleged

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that Ernest grabbed her by the throat and threw her on the couch.

She also claimed that Ernest grabbed her hair and dragged her

toward the door.

Nadeen decided to leave. She packed some belongings and took

them to her vehicle. As she began to leave, Nadeen observed Ernest

in his pickup truck preparing to leave the residence. Believing

that Ernest was intoxicated, and knowing that his truck's brake

lights and tail lights were not operating, Nadeen positioned her

vehicle behind his truck to prevent him from leaving. Ernest

backed his truck into Nadeen's vehicle and the vehicles became

locked together.

Nadeen claimed that Ernest exited his truck brandishing a .22

caliber pistol. Ernest pointed the gun at Nadeen, who was still

sitting in her vehicle, and threatened to kill her unless she

rolled down the window and gave him all his money. Nadeen

complied. Ernest continued to point the cocked and loaded gun at

Nadeen as he counted the money.

Nadeen alleged that Ernest slapped her twice in the head and

threatened that if she ever returned he would kill her. Ernest

eventually separated the two vehicles and Nadeen left the residence

in her vehicle. Nadeen drove to Bozeman and contacted the Gallatin

County Sheriff's Office.

Nadeen met with a sheriff's deputy and recounted these

allegations. The deputy observed swelling and discoloration around

Nadeen's eye. Nadeen remarked that her head hurt and showed the

deputy loose clumps of hair that she removed from her scalp. She

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told the deputy that she feared for her life when Ernest pointed

the gun at her.

Ernest was arrested in the early morning hours of July 4,

1993, and questioned about the incident. He admitted that he and

his wife argued at the saloon. Ernest also admitted that the

argument escalated into a physical confrontation. However, he

claimed he did not point the gun at Nadeen, but rather removed the

gun from the house and took it to his truck to prevent Nadeen from

having access to it.

Nadeen later supplied the sheriff's office with a second

written statement in which she recanted several of her previous

allegations. In the second written statement, Nadeen stated that

Ernest did not point the gun at her. Rather, she claimed Ernest

observed the pistol on the seat of her vehicle while the vehicles

were locked together. He then removed the gun from her vehicle and

put it in his truck. Nadeen's second written statement again

alleged a physical confrontation between Ernest and herself.

On February 10, 1994, Ernest moved to dismiss the charges

against him. He claimed that there was insufficient evidence to

convict him of the felony assault charge. He moved for dismissal

of the misdemeanor domestic abuse charge, claiming that because he

had not been brought to trial within six months of his arraignment,

he was entitled to a dismissal pursuant to § 46-13-401, MCA.

The District Court granted Ernest's motion to dismiss. The

court concluded that the State lacked sufficient evidence to

convict Ernest of felony assault. In dismissing the misdemeanor

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domestic abuse charge, the court concluded that the six-month

statutory period did not bar the misdemeanor prosecution while it

was joined with the felony assault charge. However, because the

felony was dismissed, the misdemeanor must stand on its own.

Because it had been more than six months since Ernest was arraigned

on the misdemeanor charge, and no other good cause being shown, the

court concluded that the misdemeanor domestic abuse charge must

also be dismissed. The State appeals.

Did the District Court err in granting Ernest's motion to

dismiss the two-count charge against him?

Because the District Court's rationale for dismissing the

misdemeanor domestic abuse charge depended upon the dismissal of

the felony assault charge, we first discuss the dismissal of the

felony assault charge. Section 46-13-401(l), MCA, reads:

The court may, either on its own motion or upon the

application of the prosecuting attorney and in furtherance of iustice, order a complaint, information, or

indictment to be dismissed. However, the court may not

order a dismissal of a complaint, information or indictment, or a count contained in a complaint, information or

indictment, charqinq a felony, unless sood cause for

dismissal is shown and the reasons for the dismissal are

set forth in an order entered upon the minutes. [Emphasis

added.]

Our standard of review is whether the District Court abused its

discretion by dismissing the information. State ex rel. Fletcher

v. Nineteenth Judicial District Court (1993), 260 Mont. 410, 413-

14, 859 P.2d 992, 994; State v. Schwictenberg (1989), 237 Mont.

213, 216, 772 P.2d 853, 856. This Court recently stated:

The legislature has not attempted to define the phrase

"in furtherance of justice" ., hence it is left for

judicial discretion exercised in view of the constitu5
tional rights of the defendant and the interests of

society to determine what particular grounds warrant the

dismissal of a pending criminal action.

State v. Cummins (1993), 257 Mont. 491, 493, 850 P.Zd 952, 953,

(quoting State ex rel. Anderson v. Gile (1946), 119 Mont. 182, 187,

172 P.2d 583, 586).

The District Court determined that, regardless of how Nadeen

ultimately testified at trial, the State would have insufficient

evidence to convict Ernest. However, because the District Court

dismissed the information prior to trial, it did not hear Nadeen's

testimony. The court also did not independently examine Nadeen's

prior statements made to law enforcement. Rather, it relied solely

on the parties' interpretation of these statements.

While prior out-of-court statements made by a declarant are

generally inadmissible as hearsay, such statements are admissible

and can be used as substantive evidence under Rule 801(d) (1) (A),

M.R.Evid., which states:

(d) Statements which are not hearsay. A statement is not

hearsay if:

(1) Prior statement by witness. The declarant testifies

at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A)

inconsistent with the declarant's testimony .

Thus, if Nadeen testifies at trial that Ernest did not point a gun

at her head, the State can introduce her first statement as a prior

inconsistent statement. The prior inconsistent statement can be

used as substantive evidence as well as to rebut her trial

testimony. State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d

1343, cert. denied, 449 U.S. 891, 101 S.Ct. 252, 66 L.Ed.2d 118.

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The District Court concluded that a conviction cannot be based

solely on a prior inconsistent statement. The court relied on a

series of cases which state that a criminal conviction cannot rest

solely on a prior inconsistent statement. See State v. White Water

(1981), 194 Mont. 85, 634 P.Zd 636; Utah v. Ramsey (Utah 1989), 782

P.Zd 480; Brewer v. Alaska (Alaska Ct. App. 1986), 728 P.2d 645.

White Water, Ramsey and Brower are all cases in which the

witnesses testified at trial inconsistently with their previous

statements. Those cases held that a conviction could not rest

solely on a unsworn, out-of-court prior inconsistent statement. In

the present case, because the information was dismissed prior to

trial, there is not yet a prior inconsistent statement. Nadeen

gave two contradictory written statements to the Gallatin County

Sheriff's Office. However, until she makes a statement in court,

neither of these is a prior inconsistent statement under the rules

of evidence.

Likewise, because this case has not yet gone to trial, it is

unclear whether the potential prior inconsistent statement would be

the State's sole basis for seeking a conviction. In State v.

Charlo (1987), 226 Mont. 213, 735 P.2d 278, we upheld a conviction

based primarily on a prior inconsistent statement but which was

also corroborated by other circumstantial evidence. Charlo, 735

P.2d at 280. Thus, while a prior inconsistent statement standing

alone is insufficient to sustain a conviction, a corroborated prior

inconsistent statement may suffice.
The State contends that it will produce corroborating evidence

such as: (1) Nadeen's appearance and demeanor shortly after the

incident, (2) Ernest's admission that he did have physical

possession of the gun at the time of the incident, (3) testimony

concerning the couple's behavior at the Fifth Ace Saloon during the

evening in question, and (4) the recovery of a loaded gun from the

Pinkerton residence. Until the State presents its case-in-chief,

it is unclear what corroborating evidence it can produce.

Ernest argues that this case is more like White Water than

Charlo in that the witnesses in Charlo did not explicitly make an

inconsistent statement at trial, but rather, they merely claimed

that they could not remember what happened. However, this further

bolsters the State's argument. Neither the State nor Ernest knows

what Nadeen will say at trial. She may testify that she cannot

remember what happened. The State should have the opportunity to

call Nadeen to determine how she will testify under oath and to

produce corroborating evidence. Only after the State presents its

case-in-chief can the District Court properly determine if this is

a case of an uncorroborated prior inconsistent statement such as

White Water or a case of a corroborated prior inconsistent

statement such as Charlo.

Nadeen may also testify that Ernest did point the gun at her.

She may likewise have a reasonable rationale for making her second

written statement in which she claimed he did not point the gun at

her. If she testifies that he did point the gun at her, the State

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would not need to rely on a prior inconsistent statement. Rather,

it would be relying on the victim's sworn, in-court testimony.

The District Court concluded that if Nadeen testifies that

Ernest pointed the gun at her, Ernest could introduce her second

written statement to law enforcement as a prior inconsistent

statement. The District Court stated, 'I [gliven such inconsistent

evidence and the lack of independent evidence to support a

conviction, a reasonable jury could not conclude that guilt had

been proven beyond a reasonable doubt."

Neither the District Court nor Ernest cite any authority for

this proposition. The State, on the other hand, cites State v.

Maxwell (1982), 198 Mont. 498, 647 P.2d 348, for the proposition

that a conviction can rest solely on a victim's uncorroborated, incourt testimony even if the victim has given a prior inconsistent

statement. While we note that this Court's holding in Maxwell was

specifically limited to cases involving victims of sexual intercourse without consent, similar policy reasons exist in this case.

Like a victim of sexual intercourse without consent, a battered and

threatened spouse may have compelling reasons for making contradictory statements.

If Nadeen testifies that Ernest did point the gun at her, she

should have the opportunity to explain why she made the prior

inconsistent statement. If she so testifies, her testimony should

be presented to the jury rather that being deemed insufficient as

a matter of law. It is the jury's role to weigh such testimony, in

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light of all other admissible evidence, and determine the credibility and weight it deserves.

We have addressed a few possible scenarios which may occur if

Nadeen is called to testify. Clearly there are other circumstances

which may arise if the State calls Nadeen as a witness. It is

precisely this uncertainty which renders the District Court's

dismissal of the information premature.

We conclude that the District Court erred in dismissing the

felony assault charge prior to trial. The dismissal was premature

and the State should be given the opportunity to present its casein-chief. This will allow the District Court to hear Nadeen's

testimony, if any. With this evidence the District Court can more

thoroughly and appropriately evaluate the merits of the State's

case. We reverse the District Court's dismissal of the felony

assault charge.

We conclude that the District Court's dismissal of the felony

assault charge was based on insufficient evidence to convict.

Therefore, we will not address the court's comments concerning the

sufficiency of the affidavit for leave to file an information.

Because the District Court's dismissal of the misdemeanor

domestic abuse charge depended upon the dismissal of the felony

assault charge, we vacate that dismissal and remand for further

proceedings consistent with this opinion.
Judge, sitting in place of

Justice John C. Harrison, Retired

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Justice William E. Hunt, Sr., dissenting.

I dissent from the majority opinion. A prior inconsistent

statement cannot be the sole substantive evidence upon which a jury

determines guilt. State v. Gommenginger (19901, 242 Mont. 265, 790

P.Zd 455; State v. White Water (1981), 194 Mont. 85, 634 P.2d 636.

Our rationale for this prohibition has been that it is unlikely

that a trier of fact could find the essential elements of a crime

charged beyond a reasonable doubt based solely on a prior

inconsistent statement. Gommenqinqer 790 P.2d at 463; White Water,

634 P.2d at 639.

In order to convict Ernest of felony assault under § 45-5-202,

MCA, the State must prove that he purposely and knowingly caused

Nadeen to reasonably apprehend serious bodily injury by use of a

weapon. The majority reasons that because "it is unclear whether

the potential, prior inconsistent statement would be the sole basis

for seeking a conviction," the State should be given the chance to

present its case in chief. However, in its brief in opposition to

Ernest's motion to dismiss, the State, relying on State v. Charlo

(19871, 226 Mont. 213, 735 P.2d 278, acknowledged that in order to

convict Ernest of felony assault it would have to corroborate

Nadeen's prior inconsistent statement. The State proposed to offer

as corroboration Nadeen's physical appearance and emotional state

on the night in question, evidence of the couple's argument at the

saloon, and Ernest's physical possession of the gun. While the

above might corroborate the charge of misdemeanor domestic abuse,

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it does not corroborate Nadeen's prior inconsistent statement that

Ernest pointed a gun at her head.

The district court may not dismiss a felony count without good

cause and without setting forth its reasons for the dismissal in an

order. Section 46-13-401(l), MCA. After applying Montana case law

to the facts, the District Court found good cause for dismissing

the felony assault charge against Ernest by concluding that under

any testimonial scenario it would be impossible for a jury to find

the essential element of § 45-5-202, MCA. The District Court then

set forth those reasons in its order. There is nothing in the

record to suggest that the District Court abused its discretion by

granting Ernest's motion to dismiss. I would affirm.

Justice Terry N. Trieweiler joins in the foregoing dissenting

opinion.

J stice

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