No. 89-506 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

WILLIAM KACZMAREK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Johnson; Johnson & Hunt; Shelby, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; John Paulson, 

cc 

LA '3 Asst. Atty. General; Helena, Montana 

Rae Kalbfleisch, County Attorney; Merle G. Raph, 

Deputy Co. Atty.; Shelby, Montana 

Submitted on Briefs: May 24, 1990 

Decided: July 12, 1990 
Justice R. C. McDonough delivered the Opinion of the Court. 

Defendant William Kaczmarek appeals the judgment of the Ninth 

Judicial District Court, Toole County, convicting him of burglary. 

We affirm. 

Kaczmarek raises the following issues on appeal: 

(1) Did the District Court properly refuse to direct a 

verdict for the defendant on the grounds the accomplicels testimony 

that formed the basis of the conviction was not sufficiently 

corroborated by other witnesses? 

(2) Is there sufficient evidence to support the conviction 

of burglary? 

(3) Did the District Court err in denying the defendant's 

request for a court order allowing the defense to call the 

accomplice's probation officer as a character witness? 

(4) Was the defendant substantially prejudiced by the 

District Court's comments concerning the sufficiency of the 

corroborating evidence? 

During the early morning hours of March 31, 1988, the 

residence of Frances Jones in Shelby, Montana was burglarized. 

Daniel Malloy was arrested, charged and pled guilty to the burglary 

and implicated William Kaczmarek as his accomplice. Kaczmarek was 

charged with burglary and was tried and convicted. 

At trial, the prosecution presented four witnesses: Malloy, 

Frances Jones, Officer John Abrahamson, and Amber Brandt. The 

victim, Frances Jones testified how she found her home the day 

after the burglary and what items were missing; she was absent when 

2 
the burglary was committed. She testified that when she came home 

every light in the house was on and that several of her possessions 

had been taken. 

Malloy testified that he was with Kaczmarek during commission 

of the crime. He testified that he was unable to enter the home 

after breaking a front door window and encountering a second door. 

He then went to the side of the house, broke out a bedroom window, 

entered through that window, turned on the lights and let Kaczmarek 

in the front door. 

Once inside, Malloy testified that he loaded up some items 

but that he did not actually see Kaczmarek take anything, although 

he did see him force open a cedar chest and rummage through the 

victimls belongings. 

Following his arrest, Malloy stated to Officer Abrahamsonthat 

he was willing to name his accomplice but first he wanted to talk 

with the County Attorney. According to Officer Abrahamsonls notes 

at a later meeting with the County Attorney "the first thing Dan 

asked Rae was what kind of sentence he would receive if he would 

give the name of his acc~mplice.~ Malloy was advised that 

sentencing was up to the court but nevertheless it would be better 

if he gave the information voluntarily without trying to make some 

kind of deal. 

Amber Brandt, who lives across the street from the Jones1 

residence, also testified. She stated that at the time of the 

burglary she saw a white Ford Granada pull up to the residence and 

two men get out of the car, one being a relatively large man and 
one with a smaller build. She did not see their faces. Later that 

morning at a farm auction she observed what she believed was the 

same vehicle and an individual whose build matched the general 

description of one of the men she had seen at the Jones' residence 

the previous night. Later that evening, after hearing about the 

burglary, she reported her observations to the police. Brandt then 

picked Kaczmarekts picture from a photo lineup as the individual 

she saw driving a white Ford Granada at the auction. While she 

could not positively identify the defendant or his vehicle as the 

ones she observed at the crime scene, she testified that it was the 

similar nature of the car she saw at the auction---Brandt 

apparently owned one of two white Ford Granadas in Shelby---that 

triggered her suspicion. 

At trial, Kaczmarek moved for a directed verdict on the 

grounds that the State did not offer sufficient independent 

testimony to corroborate the testimony of the accomplice Malloy. 

The court, noting that the issue was close, denied the motion but 

stated that if a conviction were returned it would reconsider the 

issue. Kaczmarek alleges that this statement by the District Court 

influenced him not to take the stand and testify on his own behalf. 

Kaczmarek also moved the District Court to allow him to call 

Malloyts probation officer as a character witness on rebuttal. 

The court also refused this motion. Kaczmarek now appeals raising 

the issues cited above. 

I. 

As his first issue, Kaczmarek contends that there is 
insufficient testimony to corroborate the testimony of the 

accomplice. Section 46-16-213, MCA, requires corroboration of an 

accomplicels testimony by ''other evidence which in itself and 

without the aid of the testimony of the one responsible or legally 

accountable for the same offense tends to connect the defendant 

with the commission of the offense. The corroboration is not 

sufficient if it merely shows the commission of the offense or the 

circumstances thereof." Section 46-16-213, MCA. We have summarized 

in prior cases the guidelines for testing the sufficiency of 

corroborating evidence: 

To be sufficient, corroborating evidence must show more 

than that a crime was in fact committed or the 

circumstances of its commission. It must raise more than 

a suspicion of the defendant's involvement in, or 

opportunity to commit, the crime charged. But 

corroborative evidence need not be sufficient, by itself, 

to support a defendant's conviction or even to make out 

a prima facie case against him. Corroboratins evidence 

may be circumstantial and can come from the defendant 

and his witnesses. 

State v. Kemp (1979), 182 Mont. 383, 387, 597 P.2d 96, 99. 

(Emphasis added.) [Citations omitted.] Corroborating testimony 

is viewed in a light most favorable to the State. State v. Conrad 

(Mont. 1990), 785 P.2d 185, 187, 47 St.Rep. 32, 34. The 

corroborating evidence need onlytend to connect the defendant with 

the crime charged and need not extend to every fact to which the 

accomplice testifies. Conrad, citing State 

Ungaretti (Mont. 1989), 779 P.2d 923, 925, 46 St.Rep. 1710, 1713. 

Thus, corroborating evidence is not insufficient merely because it 

is circumstantial, disputed, or possibly consistent with innocent 

conduct; it is the jury's duty to resolve such factual questions. 
State v. Cain (1986), 221 Mont. 318, 321, 718 P.2d 654, 656-657. 

The case relied on by defendant, State v. Case (1980), 190 

Mont. 450, 621 P.2d 1066, is distinguishable from the case at bar. 

In Case, we noted that corroborative evidence must clearly (1) 

be independent, (2) point toward the defendant's guilt, and (3) 

provide a legally sufficient connection between the defendant and 

the offense. Case, 621 P.2d at 1070; see also Civil Procedure and 

Evidence, Montana Supreme Court Survey, 41 Mont.L.Rev. 293, 312- 

319 (1980). We held there that the State failed to produce anv 

corroborative evidence because all the testimony presented as 

corroborative failed this test. 

Here, albeit circumstantial, the evidence meets this three 

part test. Kaczmarek admitted to deputy Abrahamson that he and 

Malloy were driving his white Ford Granada around Shelby the night 

of the crime. Amber Brandt testified that a white Ford Granada 

containing two men, one whose build matched the defendantls, drove 

up and parked outside the victim's house. She later saw Kaczmarek 

driving a white Ford Granada the next day. While there is no 

direct proof apart from Malloyls testimony that Kaczmarek 

accompanied him during the burglary, there is sufficient 

independent circumstantial evidence consistent with Malloyls 

version of the facts to corroborate his testimony and tending to 

establish Kaczmarek's guilt. 

11. 

Related to the issue of sufficient corroboration, Kaczmarek 
contends that the evidence is insufficient to support the 

conviction of burglary. We disagree. 

The proper standard of review for sufficiency of the evidence 

in a criminal case is "whether, after viewing the evidence in the 

light most favorable to the prosecution any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt. 'I State v. Gommenginger (Mont. 1990) , 790 P. 2d 

455, 461, 47 St.Rep. 681, 687; State v. Krum (Mont. 1989), 777 P.2d 

889, 891, 46 St.Rep. 1334, 1336. 

The State was required to prove that Kaczmarek knowingly 

entered or remained unlawfully in an occupied structure with the 

purpose to commit an offense therein. Section 45-6-204 (1) , MCA. 

Having determined that the accomplice's testimony was sufficiently 

corroborated by the testimony of Brandt and the defendant himself, 

the testimony of Malloy sufficiently establishes the essential 

elements of burglary in this case. Malloy testified that it was 

Kaczmarekts idea to burglarize the Jonest residence. Kaczmarek 

entered the house with him and rummaged through the victim's 

belongings and broke into a cedar chest. Clearly, a rational jury 

could have found the defendant guilty of burglary. 

111. 

Kaczmarek also contends that the District Court erred in 

refusing to allow him to call Jerry Skiba, Malloyls former 

probation officer as a rebuttal witness for the purpose of proving 

Malloy's character for untruthfulness. He argues that such 

testimony is admissible pursuant to Rule 608, M.R.Evid. 
We need not address whether the testimony is admissible under 

this rule. Although the trial judge did not state the reasons for 

his ruling, the prosecution objected to the testimony in part on 

the ground that no notice was given to the prosecution pursuant to 

the discovery order and thus Skiba was a surprise witness. The 

State listed accomplice Malloy as a witness when it filed the 

information commencing this prosecution. Thus, the defendant had 

notice from the outset that Malloy was likely to testify against 

him and therefore had ample time to secure witnesses for the 

purpose of discrediting Malloyts testimony. 

Furthermore, the District Court granted the Statets motion 

for discovery filed pursuant to 6 46-15-323, MCA, on February 1, 

1989, and ordered the defendant to disclose to the State the names 

and addresses of all persons, other than the accused, who were to 

be called as witnesses by the defense at trial. At the omnibus 

hearing on March 9, 1989, the defendant agreed to provide the State 

with a complete list of all defense witnesses with their addresses 

and statements ten days prior to trial. Kaczmarek failed to comply 

with these orders with respect to calling Skiba as a witness. 

Section 46-15-323 (4) , MCA, also requires a defendant to provide 

the prosecutor with the names of defense witnesses within 30 days 

after arraignment or at such later time as the court may for good 

cause permit. Moreover, the district court may preclude a defendant 

from calling a witness if he has failed to comply with the 

disclosure provisions set forth in 66 46-15-321 through 329, MCA, 

or any order issued pursuant thereto. section 46-15-329, MCA; 
State ex re1 Carkulis v. District Court (1987), 229 Mont. 265, 746 

P.2d 604. Imposition of such sanctions is within the sound 

discretion of the district court and will not be overturned absent 

a clear abuse of discretion. State v. Waters (1987), 228 Mont. 

490, 495, 743 P.2d 617, 621. Here, Kaczmarek did not offer any 

reason why pretrial disclosure was not made. The District Court 

did not abuse its discretion in denying Kaczmarek's motion to call 

Skiba as a witness. 

Finally, Kaczmarek argues that he was substantially prejudiced 

by the following comments made by the District Court: 

There are thousands of Granadas made, I suppose, but I 

guess only two of them in Shelby. There's no evidence 

who owns this Granada but apparently the testimony from 

Malloy is that he drove the car up there. And of course, 

the testimony is he drove the car to the auction. While 

it is indeed thin, I'm going to let the matter go to the 

jury on the matter of corroboration. We'll see what 

the jury does with it. If they, if a conviction's 

returned, 1'11 call for briefs and we'll . . . go over 

the evidence with a fined tooth comb as to whether the 

verdict should be set aside or not. But at this stage, 

I think there' s enough testimony before the jury to get 

to the jury on the corroboration of the witness. 

In an affidavit filed with this Court Kaczmarek alleges that these 

comments constitute a promise by the court to reconsider the 

sufficiency of the corroborating evidence and led him to choose 

not to take the stand and testify on his own behalf. 

This contention lacks merit. The defendant failed to object 

the District Court s determination the issue after trial, 

thus the court's alleged failure to reconsider the issue cannot be 

raised as error on appeal. See $5 46-20-104, 46-20-701, MCA. The 
~istrict Court was not required to reconsider the issue sua monte. 

Defendant's decision must be regarded as trial strategy rather than 

a decision somehow influenced by the District Court's comments. 

The defendant suffered no prejudice and there is sufficient 

evidence to sustain the conviction. 

AFFIRMED. 

We Concur: