No. 14900 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

vs. 

HAROLD MELVIN FIFE, 

Defendant and Appellant. 

Appeal from: District Court 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 in the 

Thirteenth Judicial District of the State of Montana, in and 

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 this matter was had. The 

court sat with a jury, which returned a verdict of guilty. 

Defendant appeals from the final judgment and a denial of 

his motion for a new trial. 

Defendant and Rodgers were charged with a robbery at 

the home of Mr. and Mrs. Curtis Workman of Laurel, Montana, 

on December 14, 1978. 

Mrs. Workman testified that on the night in question, 

two men, armed with guns and a knife, forcibly entered her 

home. Both men were wearing 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 plastic jug used by 

Mrs. Workman's brother, Dale Wolford, to store coins. 

The Workmans' residence is next door to an apartment 

rented by Vernal Miller, his common-law wife Roxana Clymore, 

and defendant. On January 9, 1979, a search warrant was 

issued for Miller's apartment and during its execution, a 

plastic jug was recovered from the top of a dresser in 

Miller and Clymore's bedroom. Dale Wolford, who resided 

with the Workmans, testified that the plastic jug was the 

one taken by the two robbers. He also stated that on a 

prior occasion he had shown Clymore and Miller his 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 lineup was held, 

and Mr. and Mrs. Workman were given the opportunity to view 

defendant and others wearing 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 stopped Vernal 

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 absent witness? 
2. Did the District Court err by allowing into evidence, over defendant's objection, testimony and exhibits 

relating to Lee, a/k/a Rodgers, thus confusing the jury with 

irrelevant and prejudicial evidence not linked to the defendant or the issues presented in this case? 

3. Did the District Court 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 District Court err by failing to suppress 

as evidence the pantyhose and the plastic jug? 

5. Did the District Court err by refusing to give 

defendant's proposed instruction nos. 7, 12 and 14? 

Defendant contends the District Court abused its 

discretion by denying his motion 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 to respond as directed. In the 

alternative, the District Court erred by not allowing a 

portion of Brohaugh's statement to the police to be read 

into the record by the defense in lieu of Brohaugh's testimony. 

The rule for continuances in Montana is set out in 

section 46-13-202, MCA, and in State v. DiGiallonardo (1972), 

160 Mont. 379, 503 P.2d 43. The facts in this case present 

no reasons why a continuance should not have been granted. 

See, State v. Valmoja (1975), 56 Haw. 452, 540 P.2d 63; 

Salazar v. State (Alaska 1976), 559 P.2d 66. 

During trial a situation developed where it became 

necessary, if possible, for the defense to demonstrate that 

defendant was not the robber "George," but rather vernal 
Miller was. Defendant urged that a police report filed by 

one Russell Brohaugh was crucial to his defense in this 

regard and would bolster the defense theory that Vernal 

Miller was the robber "George." The defense moved for a 

continuance so that Brohaugh might be located, or, in 

the alternative, that the pertinent portion of the police 

report be read to the jury. 

In Montana, motions for continuance in criminal trials 

are provided for by section 46-13-202, MCA, which states: 

" (1) The defendant or the state may move 

for a continuance. If the motion is made 

more than 30 days after arraignment or at 

any time after trial has begun, the court 

may require that it be supported by affidavit . 

" (2) The court may upon the motion of 

either party or upon the court's own motion order a continuance if the interests 

of justice so require. 

" (3) All motions for continuance are addressed to the discretion of the trial 

court and shall be considered in the light 

of the diligence shown on the part of the 

movant. This section shall be 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 

to the discretion of the trial court, we must consider 

whether the trial court's treatment of this matter was an 

abuse of discretion. State v. DiGiallonardo, 503 P.2d at 

In DiGiallonardo, this Court adopted guidelines which 

Illinois had established in People v. Hudson (1968), 97 

Ill.App.2d 362, 240 N.E.2d 156, to determine whether there 

was an abuse of discretion. These guidelines were: 

1. Reasonable expectation or prospect of obtaining the 

presence of the absent witnesses; 
2. Whether the absent witnesses' testimony would help 

the defense; and, 

3. Whether the absent witnesses 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 testimony was speculative; and (3) there was 

a question as to whether the missing witnesses could be 

compelled to testify. 160 Mont. 382-384. 

Defendant here seeks to distinguish DiGiallonardo and 

argues that in the instant case, the missing witness was a 

resident property 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 is material 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 other 
factual issues. The State submits that if this Court finds 

that defendant attempted with due diligence to have Brohaugh 

testify, then this Court should look to the factors stated 

in Salazar to determine if the trial court abused its 

discretion. 

There is nothing in the record to indicate that defendant 

failed to act diligently in attempting to secure the testimony 

of Brohaugh. He was properly subpoenaed. There is nothing 

in the record to indicate he 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 so much 

as issued a bench warrant to arrest the intended witness. 

Both parties here seek to extend the guidelines set out 

by this Court in DiGiallonardo by use of the Salazar factors. 

In reviewing the evidence, however, it becomes apparent 

that under either set of guidelines the District Court acted 

arbitrarily in denying defendant's motion for continuance, 

or not working out a method to admit a portion of the police 

record. It appears Brohaugh could have been found without 

unreasonable delay, a factor which is not entirely clear 

from the record, but oral argument 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 statement was 

a crucial factor in his defense theory that would tend to 

link Miller to the robber "George." 
It was argued with some justification that there were 

problems with this testimony and therefore the quality came 

under attack by the State in terms of how much help it would 

be to the defense. This is a hard question and one of fact. 

Defendant's effort was in good faith; the testimony was not 

cumulative; the testimony was material; the court would 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 discretion when it failed 

to grant some kind of relief or continuance to defendant 

when a subpoenaed witness material 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 Justice 
Mr. Justice John Conway Harrison dissenting: 

I must respectfully dissent. 

In order to reverse a case on the issue of whether the 

trial judge abused his discretion in denying the appellant's 

motion for a continuance, we must look to the statutes and 

the case authorities established by this Court. I do not 

find an abuse here. 

Controlling this matter is section 25-4-501, MCA, which 

provides : 

"Motion to postpone trial for absence of testimony. motion to postpone a trial ongrounds 

of the absence of evidence shall only be made 

upon affidavit showing the materiality of the 

evidence expected to be obtained and that due 

diligence has been used to procure it." 

This language is mandatory and must be construed as such. 

See State v. Radi (1975), 168 Mont. 320, 325, 542 P.2d 1206. 

Here, appellant did not file an affidavit demonstrating 

the materiality or that he had used due diligence to get the 

witness involved. In view of appellant's failure to comply 

with the statute, section 25-4-501, MCA, how can it be said 

that the District Court abused its discretion in denying a 

motion for a continuance. See, State v. Pascgo (1977), 173 

Mont. 121, 566 P. 2d 802; State v. Harvey (1979), Mont. 

The denial of a motion for continuance is within the 

sound discretion of the District Court, and it cannot, in my 

opinion, be error to deny such a motion unless there is a 

clear abuse of that discretion. See, State v. Olsen (1968), 

152 Mont. 1, 445 P.2d 926; section 46-13-202, MCA. 

Since the above section places the filing of an affidavit within the sound discretion of the trial court and no 

affidavit was required in the 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 that may be 

weighed in determining if the denial of the continuance is 

an abuse of discretion. The factual issues as stated in 

Salazar were: 

". . . (1) whether the testimony is material 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. . ." 

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, appellant had the clerk of the court issue a 

subpoena for Russell Brohaugh on April 11, 1979. That 

subpoena was served by counsel for appellant, Mr. Stacey, on 

April 15, 1979. The subpoena directed 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 Brohaugh was called that the court was 

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 did 
counsel request the court to order the sheriff's office to 

go and pick up Brohaugh as required by section 26-2-106, 

MCA. There is no indication in the record that Stacey 

attempted to contact Brohaugh between 9:00 a.m. and the time 

Stacey called Brohaugh to the stand. 

The State does 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 as instructed 

by the subpoena until he called Brohaugh to the stand, 

appellant exercised no diligence whatsoever. Under these 

circumstances, I would find that the court exercised its 

sound discretion in denying the motion for a continuance. I 

would affirm the judgment below.