No. 14900 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

vs. HAROLD MELVIN FIFE,Defendant and Appellant.

Appeal from: DistrictCourt of the Thirteenth Judicial District, Honorable C. B. Sande, Judge presiding. Counsel of Record: For Appellant: Calvin J. Stacey argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Mark Murphy argued, Assistant Attorney General, Helena,

Montana Harold Hanser, County Attorney, Billings, Montana W. Corbin Howard argued, Deputy County Attorney, Billings,

Montana

C '/
. Filed: 

## '

' 

### -- Submitted: February 

### 21, 1980 Decided:

, *>Mr. Justice Gene B. Daly delivered the Opinion of the Court.

On January 15, 1979, an information 

### was filed inthe Thirteenth Judicial Districtof the Stateof Montana, inand for the County of Yellowstone, charging defendant and Robert C. Rodgers, a/k/a Robert G. Lee, with robbery. Defendant entered 

### a plea of not guilty. On April 17, 1979, after

severance of the cases, trial in thismatter was had. The court 

### satwith 

### a jury, which returned 

### a verdict of guilty. Defendant appeals from the finaljudgment and a denial of hismotion for a new trial. Defendant and Rodgers were charged with a robbery 

### at the home of Mr. and Mrs. CurtisWorkman of Laurel, Montana,

on December 14, 1978. Mrs. Workman testified thaton the night inquestion, two men, armed with guns and a knife, forcibly entered her home. Both men 

### werewearing dark ski caps with nylon stockings over their faces and conversed using the names of "Billy Boy" and "George." Mrs. Workman stated that the two

men talked during the robbery and that she had 

### a good look at "George's" face and physical stature. The two men took cash and various other 

### items including a plasticjug used by Mrs. Workman's brother, Dale Wolford, to storecoins. The Workmans' residence 

### isnext door to an apartment rented by Vernal Miller, hiscommon-law wife Roxana Clymore, and defendant. On January 9, 1979, a search warrant 

### was issued forMiller's apartment and during 

### itsexecution, a plastic jug was recovered from the top of a dresser in Miller and Clymore's bedroom. Dale Wolford, who resided with theWorkmans, testified that the plasticjug 

### was the

one taken by the two robbers. He also stated that on a prior occasion he had shown Clymore and Millerhis coin collection.

### Mrs. Workman indicated that there was a strong possibility she would be able to identify the individual known

as "George" if he appeared in a lineup. A 

### lineupwas held, and Mr. and Mrs. Workman were given the opportunity to view defendant and otherswearing the exact clothing worn by "George." The persons in the lineup also repeated the words "George" had uttered during the robbery. Mrs. Workman, however, failed to identify defendant as "George." About three months after defendant's arrest, some pantyhose were found behind the seat of defendant's pickup. The pantyhose were discovered when the police stoppedVernal Miller, who was driving the pickup. Miller testified that he had used defendant's pickup on various occasions. There

was testimony that Roxanna Clymore and Thomas ~ightmeir, defendant's brother-in-law, had also used the pickup since defendant's arrest. Roxanna Clymore testified that defendant and Rodgers

were at her apartment the night of the robbery. She stated she saw two men force their way into the Workmans' residence that evening. She also stated that defendant made certain remarks to her about the robbery. She also testified that the plastic jug belonging to Wolford was found by the police in her bedroom. Defendant testified and denied that he had participated in the robbery. The following issues are presented for consideration on appeal: 

### 1. Did the District Court abuse its discretion by denying defendant's motion for continuance so that a material subpoenaed witness could be brought to court and present testimony in support of the defense? In the alternative, did the District Court err by not allowing the defense to read into the record the statement of the absentwitness?2. Did the DistrictCourt 

### err by allowing into evidence, over defendant's objection, testimony and exhibits relating toLee, a/k/a Rodgers, thus confusing thejury with irrelevant and prejudicial evidence not linked to the defendant or the issuespresented inthis case? 3. Did the DistrictCourt 

### err by preventing the defendant from inquiring into

### a possible motive that the witness Clymore may have had to fabricate 

### a story against the defendant? 

### 4. Did the DistrictCourt 

### err by failing to suppress
asevidence the pantyhose and the plasticjug? 5. Did the DistrictCourt 

### err by refusing to give defendant's proposed instruction nos. 7, 12 and 14? Defendant contends the DistrictCourt abused its discretion by denying hismotion for continuance near the end of his case-in-chief. The continuance 

### was requested because a crucial defense witness, Russell Brohaugh, under subpoena by defense failed torespond 

### as directed. In the alternative, the DistrictCourt erred by not allowing a portion of Brohaugh's statement to the police tobe read into the record by the defense inlieuof Brohaugh's 

### testimony.The rule for continuances inMontana 

### is 

### set out in section 46-13-202, MCA, and inStatev. DiGiallonardo (1972), 160Mont. 379, 503 P.2d 43. The facts in thiscase present

no reasons why a continuance should not have been granted. See, Statev. Valmoja (1975), 56 Haw. 452, 540 P.2d 63; Salazar v. State (Alaska 1976), 559 P.2d 66. During trial 

### a situationdeveloped where it became necessary, if possible, for the defense todemonstrate that defendant was not the robber "George," but rather vernalMillerwas. Defendant urged that 

### a police report filedby

one Russell Brohaugh was crucial tohisdefense in this regard and would bolster the defense theory thatVernal Miller was the robber "George." The defense moved for 

### a continuance so thatBrohaugh might be located, or, in the alternative, that the pertinent portion of the police report be read to the jury. InMontana, motions for continuance incriminal trials

areprovided forby section 46-13-202, MCA, which 

### states: 

### "(1) The defendant or the statemay move for a continuance. If the motion 

### ismade more than 30 days after arraignment or 

### at any 

### timeafter 

### trial has begun, the court may require that itbe supported by affidavit

# . "(2) The courtmay upon themotion of either party or upon the court's own motion order 

### a continuance if the interests of justice so require. 

### "(3) Allmotions for continuance 

### are addressed to the discretionof the 

### trial court and shallbe considered inthe light of the diligence shown on the part of the movant. This section shallbe construed to the end that criminal cases 

### are tried with due diligence consonant with the rights of the defendant and the 

### state to

### a speedy trial.

### " Since subsection (3)requires that such motions be directed tothe discretion of the 

### trial court, 

### we must consider whether the 

### trial court's treatment of this

### matter was an abuse of discretion. Statev. DiGiallonardo, 503 P.2d at

In DiGiallonardo, this Court adopted guidelines which Illinoishad established inPeople v. Hudson (1968), 97 Ill.App.2d 362, 240 N.E.2d 156, todetermine whether there

was an abuse of discretion. These guidelines were: 

### 1. Reasonable expectation orprospect of obtaining the presence of the absent witnesses;

### 2. Whether the absentwitnesses' testimony would help the defense; and, 3. Whether the absentwitnesses would testify. In DiGiallonardo, the absent witnesses were alleged to be co-participants in the crime. We held that the trial court acted properly in denying defendant's motion because:

(1) the transcripts indicated appellants had no knowledge of the whereabouts of the missing witnesses; (2) 

### the probative value of their testimonywas speculative; and (3) there was a question as to whether themissing witnesses could be compelled to testify. 160Mont. 382-384. Defendant here seeks to distinguish DiGiallonardo and argues that in the instant case, the missing witness was a residentproperty owner in Laurel, Montana, who would therefore be easy to find and could not avail himself of Fifth Amendment protections. Further, the defense demonstrated by the police record that Brohaugh's testimony was crucial to the defense of the case. Defendant has suggested further that this Court apply the standards set forth in Salazar v. State, supra. In Salazar, the Alaskan court set out the following factors to be considered in granting a motion for continuance: 

# ".

. . (1)whether the testimony ismaterial to the case; (2)whether the testimony can be elicited from another source; (3)whether the testimony is cumulative; 

### (4)probability of securing the absent witness in a reasonable time; (5) 

### whether the requesting party was diligent and acting in good faith; (6) the inconvenience to the court and/or others; and (7)

### the likelihood that the testimony would have affected the jury's verdict. 

# .."559 

### P.2d at 72. 

### The State focuses on the specific language of section 46-13-202,MCA, which requires that the movant demonstrate his diligence prior to the consideration of any of the otherfactual issues. The State submits that if thisCourt finds that defendant attempted with due diligence tohave Brohaugh testify, then thisCourt should look to the factors stated inSalazar todetermine if the 

### trial court abused 

### its discretion. There 

### isnothing inthe record to indicate that defendant failed to actdiligently inattempting to secure the testimony of Brohaugh. He was properly subpoenaed. There isnothing in the record toindicatehe would not show up until a short time before he was called to the stand and failed to appear. In fact, the record does not disclose that the court somuch

asissued a bench warrant toarrest the intended witness. Both parties here seek toextend the guidelines 

### set out by thisCourt inDiGiallonardo by use of the Salazar factors. In reviewing the evidence, however, it becomes apparent thatunder either setof guidelines the District Court acted arbitrarily indenying defendant's motion for continuance,

or not working out a method toadmit a portion of the police record. It appears Brohaugh could have been found without unreasonable delay, a factor which isnot entirely clear from the record, but oralargument revealed the 

### case went to the jury around 5:00 p.m. and a continuance until the following day would have prejudiced no one. These facts

### were not disputed. Brohaugh had filed a police report on another theft and in some manner identified the present defendant in the company of a companion of whom he reported: "They called him George." The word "him" would have referred to Vernal Gary Miller. Defendant argues that his statementwas

a crucial factor inhisdefense theory thatwould tend to linkMiller to the robber "George."

### Itwas argued with some justification that there were problems with this testimony and therefore the quality came under attack by the State in terms of howmuch help itwould be to the defense. This is a hard question and one of fact. Defendant's effortwas in good faith; the testimony was not cumulative; the testimonywas material; the courtwould not allow any consideration of an alternate hearsay source; the delay would have been minimal and no one would have been inconvenienced thereby; and, of course, the value, as stated above, is a close question which should have been resolved in favor of defendant, assuring him a fair trial. Conversely, without the testimony a conviction resulted. The District Court abused its discretionwhen it failed to grant some kind of relief or continuance to defendant when a subpoenaed witnessmaterial to the defense failed to appear and testify. If the evidence remains the same at a new trial, then defendant's proposed instruction no. 7 

### on circumstantial evidence must be given. The judgment of the District Court is reversed, and the cause is remanded for a new trial.

r 

### We concur: 

# 2'dA~lbWwpe~ Chief JusticeMr. Justice John Conway Harrison dissenting: I must respectfully dissent. In order toreverse a case on the issueof whether the 

### trial judge abused his discretion indenying the appellant's motion for a continuance, 

### wemust look to the statutes and the case authorities established by this Court. I do not find an abuse here. Controlling this

### matteris section 25-4-501, MCA, which provides: "Motion topostpone 

### trial for absence of 

### testimony. 

## motion topostpone 

### a trial ongrounds of the absence of evidence shallonly be made upon affidavit showing the materiality of the evidence expected tobe obtained and that due diligence has been used toprocure it." This language 

### ismandatory and must be construed 

### as such. See Statev. Radi (1975), 168Mont. 320, 325, 542 P.2d 1206. Here, appellant did not filean affidavit demonstrating themateriality or thathe had used due diligence toget the witness involved. Inview of appellant's failure to comply with the statute, section 25-4-501, MCA, how can it be said that the DistrictCourt abused itsdiscretion indenying 

### a motion for a continuance. See, Statev. Pascgo (1977), 173 Mont. 121, 566 P.2d 802; Statev. Harvey (1979), Mont.

The denial of a motion for continuance 

### iswithin the sound discretionof the District Court, and 

### it cannot, inmy opinion, be error todeny such 

### a motion unless there 

### is a clear abuse of that discretion. See, Statev. Olsen (1968), 152Mont. 1, 445 P.2d 926; section 46-13-202, MCA. Since the above sectionplaces the filingof an affidavitwithin the sound discretion of the 

### trial court and no affidavit

### wasrequired inthe case, an examination of the

### facts and the circumstances surrounding the denial of the motion should be looked to to determine whether the court abused its discretion. Appellant relies on Salazar v. State (Alaska 1976), 559 P.2d 66,which outlines certain considerations thatmay be weighed in determining if the denial of the continuance is

an abuse of discretion. The factual issues as stated in Salazarwere: 

# ".



# . . (1)whether the testimony ismaterial to the case; (2)whether the testimony can be elicited from another source; (3)whether the testimony is cumulative; (4)probability of securing the absentwitness in a reasonable time; (5)whether the requesting party was diligentand acting in good faith; (6)the inconvenience to the court and/or others; and (7)the likelihood that the testimony would have affected the jury's verdict. 

# .."
It should be noted that the very language of section 46-13- 202,MCA, requires that the movant demonstrate his diligence prior to the consideration of any of the other factual issues. Here, appellanthad the clerk of the court issue a subpoena for Russell Brohaugh on April 11, 1979. That subpoenawas served by counsel for appellant,Mr. Stacey,on April 15, 1979. The subpoenadirected Brohaugh to appear at the Yellowstone County Courthouse at 9:00 a.m. on April 18,

Brohaugh was not called to the stand until after the afternoon recess. There is no showing in the transcript prior to the time Brohaughwas called that the courtwas informed that he had failed to appear as ordered in the subpoena. Nowhere in the record did Mr. Stacey,counsel for appellant, request from the court a bench warrant for Brohaugh. See, section 45-7-309(c), MCA. Nowhere in the record didcounsel request the court toorder the sheriff's office to go and pick up Brohaugh 

### as required by section 26-2-106, MCA. There 

### isno indication in the record that Stacey attempted tocontact Brohaugh between 9:00 a.m. and the 

### time Stacey calledBrohaugh to the stand. The Statedoes not deny that appellant up to the time of 

### trial ackeG. diligently, but fr3m thz very 

### time that counsel discovered Brohaugh had failed to appear asinstructed by the subpoena until he calledBrohaugh to the stand, appellant exercised no diligence whatsoever. Under these circumstances, I would find that the court exercised 

### its sound discretion indenying themotion for a continuance. I would affirm the judgment below.