NO. 95-301

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KATHLEEN FAY SCHINDLER,

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.

COUNSEL OF RECORD:

For Appellant:

Charles E. Petaja, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Patricia

Jordan, Assistant Attorney General, Helena, Montana;

Valerie D. Wilson, Jefferson County Attorney,

Boulder, Montana

Filed:

Submitted on Briefs: November 30, 1995

Decided: February 6, 1996

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Justice James C. Nelson delivered the Opinion of the 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 of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing

Company.

Kathleen Fay Schindler (Schindler), was convicted by a jury in

the District Court for the Fifth Judicial District, Jefferson

County, of assault and criminal mischief, both misdemeanors. She

appeals the Order of the District Court granting the State's

Motions in Limine excluding several of her witnesses. We affirm.

We address the following issues on appeal:

1 . Did the District Court err in excluding all defense

witnesses on the basis that they had not been disclosed in a timely

fashion?

2 . Did the District Court err in excluding several defense

witnesses on the basis that their testimony would not be relevant

to the charges facing Schindler?

Background Facts

On May 3, 1993, Todd Hamper (Hamper) and Keith Jennings

(Jennings), employees of Pegasus Gold Mine, were driving along

Basin Creek Road toward the mine when Schindler and Gordon Ford

(Ford) signaled them to stop. Ford approached the vehicle and

accused the two men of speeding along the gravel road. Ford told

them that if they didn't slow down he would throw the hatchet he

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was holding through their window.

As Ford approached the men, Hamper, who had been driving, got

out of the vehicle to speak with him. Ford calmed down as he

discussed the situation with Hamper. Schindler, on the other hand,

continued to yell profanities at Hamper and Jennings and threatened

to get her gun and shoot them if they continued to speed past her

house.

Hamper returned to the vehicle and, as he drove away,

Schindler began throwing rocks at them. One rock struck the

vehicle just below the wing window on the passenger side. As

Hamper and Jennings drove toward the mine, they encountered their

boss, Dave Swanson (Swanson). They stopped their vehicle to tell

Swanson of the incident and to inspect the vehicle for damage.

They discovered a dent below the wing window on the passenger side.

Swanson filed a complaint with the Jefferson Country Sheriff's

Department over the incident. Ford and Schindler were each charged

with one count of assault. In addition, Schindler was charged with

one count of attempted deliberate homicide for another incident

occurring on June 10, 1993. Schindler was arrested at her home on

June 17, 1993, pursuant to a warrant.

On June 22, 1993, an amended complaint was filed in justice

court dismissing the attempted deliberate homicide charge and

adding a charge of criminal mischief for the damage to the vehicle

in the May 3, 1993 incident. Schindler was convicted in justice

court on March 4, 1994, of misdemeanor assault and criminal

mischief. Ford was acquitted of the charge against him.
Schindler filed a notice of appeal in the Fifth Judicial

District Court, but the District Court dismissed the appeal as

untimely. Schindler appealed to this Court and the District Court

order was subsequently reversed and the case was remanded for

trial.

Schindler elected to represent herself at trial and notified

the District Court to that effect by letter dated January 22, 1995.

At the February 17, 1995 Omnibus Hearing, the District Court

ordered that all motions, notices and trial briefs be filed at

least ten days prior to the trial scheduled for April 10, 1995.

Schindler filed her pretrial brief on March 23, 1995. Her brief

included a list of all witnesses she intended to call at trial.

On March 22, 1995, the State filed two motions in limine. The

first requested that the District Court exclude any witnesses or

defenses that had not been disclosed in a timely fashion and the

second requested that the District Court prohibit Schindler from

calling any witnesses to testify about events other than those

relating to the May 3, 1993 incident for which she had been

charged. The District Court granted the State's motions and moved

up the trial date to April 6, 1995.

On the day set for trial, following jury selection, the

District Court addressed Schindler's inquiry into why she was not

allowed to call witnesses. The possible testimony of each proposed

defense witness and its relevance to the May 3, 1993 incident was

discussed. The District Court determined that Gordon Ford was the

only relevant witness on Schindler's list who had not already been

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subpoenaed by the State. The court advised Schindler that she

could call Ford as a witness.

Immediately following the District Court's inquiry into

Schindler's witnesses, the State proceeded with its case. The

State called several witnesses who were also on Schindler's witness

list and Schindler was allowed to question each witness. At the

close of the State's case, Schindler advised the court that she had

been unable to locate Ford. The District Court offered to grant

her additional time to locate her witness but she declined. She

also declined to testify on her own behalf and she rested without

presenting any testimony.

The case was submitted to the jury and Schindler was convicted

of misdemeanor assault and criminal mischief. She was given a sixmonth suspended sentence and fined $500 on each offense.

Issue 1.

Did the District Court err in excluding all defense witnesses

on the basis that they had not been disclosed in a timely fashion?

In its Order filed March 24, 1995, the District Court granted

the State's Motion in Limine to prohibit the defense from calling

any witnesses, offering any evidence, or raising any defense which

had not been disclosed in a timely fashion pursuant to 5 46-IS329(4), MCA.

Section 46-15-329, MCA, provides:

Sanctions. If at any time during the course of the

proceeding it is brought to the attention of the court

that a party has failed to comply with any of the

provisions of this part or any order issued pursuant to

this part, the court may impose any sanction that it

finds just under the circumstances, including but not

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limited to:

i4i . precluding a party from calling a witness, offering

evidence, or raising a defense not disclosed . . . .

We have previously stated that § 46-15-329, MCA, endows a

district court with the discretion and flexibility to impose

sanctions commensurate with the failure to comply with discovery

orders and that, absent a clear abuse of discretion, we will not

interfere with the trial court's decision. State v. Haskins

(1994), 269 Mont. 202, 207, 887 P.2d 1189, 1192-93 (citing State v.

Waters (1987), 228 Mont. 490, 495, 743 P.2d 617, 621).

Schindler argues that the District Court violated her due

process rights by "summarily granting" the State's motion

prohibiting her from calling any witnesses on her behalf and that

she was denied a fair trial. The State argues that the District

Court properly excluded the testimony of witnesses where proper

notice had not been given pursuant to § 46-15-323, MCA.

Section 46-15-323, MCA, provides in pertinent part:

(6) Within 30 days after the arraignment or at a

later time as the court may for good cause permit, the

defendant shall make available to the prosecutor for

testing, examination, or reproduction:

(a) the names, addresses, and statements of all

persons, other than the defendant, whom the defendant may

call as witnesses in the defense case in chief, together

with their statements . . . .

In its Omnibus Hearing Order filed February 27, 1995, the

District Court stated:

All matters set forth in 5 46-13-110, MCA were

addressed, and have been complied with, or are

inapplicable except as follows:

Discovery: Defendant is concerned about redacted

information from the Dispatcher logs from information

previously supplied. The State contends this redacted

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information does not concern person and matters related

to this case. The redacted information is to be

furnished to the Court for an in camera review, and

supplied to Defendant by the Court if determined to be

relevant to this case.

Just Notice (Other crimes, wrong or acts): If the

State determined this notice applicable, it shall be

given ten days prior to trial.

Other notices and motions: Any other notices and

motions shall be filed or submitted ten days before

trial, as well as trial briefs, proposed instructions and

a verdict form.

It would appear from these comments by the District Court that

the court extended the provisions of § 46-15-323(6), MCA, to ten

days before trial. Since Schindler filed her pretrial brief

containing her list of witnesses on March 23, 1995, and trial had

been set for April 10, 1995, Schindler was in compliance with the

court's order. The District Court erred in finding that Schindler

had not complied with disclosure provisions and the court abused

its discretion by imposing sanctions and excluding Schindler's

witnesses.

The State also contends that Schindler was required to give

notice of her defenses prior to trial. However, § 46-15-323, MCA,

only requires notice of certain defenses, such as alibi, mistaken

identity, and entrapment. Schindler need not give notice of a

general defense that the State could not prove its case, providing

that she does not use any of the defenses enumerated in § 46-15-

323, MCA.

Issue 2.

Did the District Court err in excluding several defense

witnesses on the basis that their testimony would not be relevant

to the charges facing Schindler?

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III its Order granting the State's motion to exclude witnesses

not timely identified and disclosed, the District Court did not

specifically grant the State's second motion to only allow

testimony relevant to the May 3, 1993 incident. However, the court

did state that it reserved the right

to reconsider this order, provided that the Defendant

immediately advise the Court as to why these proposed

witnesses were not timely disclosed, and a summary of

proposed testimony and its relevance to the pending

charges. [Emphasis added.]

At trial, the District Court reviewed each witness on

Schindler's list and determined that many of the witnesses

Schindler intended to call were not present at the May 3, 1993

incident, would not have any testimony relevant to the charges

facing Schindler, and should, therefore, be excluded, The court

determined that those witnesses with relevant information, with the

exclusion of Gordon Ford, had already been subpoenaed by the State

and Schindler would have the opportunity to question them.

The standard of review for evidentiary rulings is whether the

district court abused its discretion. State v. Gollehon (1993),

262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of

whether evidence is relevant and admissible is left to the sound

discretion of the trial judge and will not be overturned absent a

showing of abuse of discretion. Gollehon, 864 P.2d at 1263.

Since Schindler was only charged with crimes occurring on May

3 , 1993, any testimony regarding incidents of a later date were

properly excluded by the District Court. As to witness Ford who

was present at the May 3, 1993 incident, the District Court offered

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to grant Schindler additional time to locate Ford and allow him to

testify. However, Schindler declined the court's offer and stated

"I don't know that he's going to produce much more than Mr. Hamper

and Mr. Jennings did . . . .I' While the District Court initially

may have been in error to exclude Ford, it corrected the error by

allowing Ford to be called and when he could not be located,

offered Schindler additional time to locate him.

Accordingly, we hold that the District Court did abuse its

discretion in this case by excluding all defense witnesses as not

timely disclosed. However, we hold that the error was harmless

because those witnesses that were not called to testify were

properly excluded, with the exception of witness Ford, as their

testimony was not relevant to the charges facing Schindler. We

will not reverse a district court judgment for error which is

harmless. Section 46-20-104, MCA; State v. Rothacher (Mont. 1995),

901 P.2d 82, 67, 52 St.Rep. 772,

Affirmed.

775.