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: ForAppellant: JamesA. 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, 1990Justice R. C. McDonough delivered the Opinion of the Court.

DefendantWilliam Kaczmarek appeals the judgment of theNinth JudicialDistrict 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 forthedefendanton thegrounds the accomplicels testimony that formed the basis of the conviction was not sufficiently corroborated by otherwitnesses? (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 Malloywas arrested, charged andpled guilty to theburglary and implicated William Kaczmarek ashis accomplice. Kaczmarekwas charged with burglary and was tried and convicted. At trial, the prosecutionpresented four witnesses: Malloy, Frances Jones, Officer John Abrahamson, and Amber Brandt. The victim, Frances Jones testified how she found her home the day after theburglary andwhat itemsweremissing; shewas absentwhen 2the burglarywas committed. She testified thatwhen she came home every light in thehousewas on and that several of herpossessions had been taken. Malloy testified thathewaswith Kaczmarek during commission of the crime. He testified that he was unable to enter the home after breaking a frontdoorwindow and encountering a second door. He thenwent to the side of thehouse,broke out a bedroom window, entered through thatwindow, turned on the lightsand letKaczmarek in the front door. Once inside, Malloy testified that he loaded up some items but that he did not actually seeKaczmarek take anything, although he did see him force open a cedar chest and rummage through the victimlsbelongings. Followinghis arrest,Malloy stated toOfficerAbrahamsonthat he was willing to name his accomplice but first he wanted to talk with the CountyAttorney. According to OfficerAbrahamsonlsnotes 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 sentencingwas up to the court but nevertheless it would be better if he gave the informationvoluntarily without trying tomake 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 residenceand two men get out of the car, one being a relatively largeman andonewith a smallerbuild. Shedid 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 themen shehad seen at the Jones' residence the previous night. Later that evening, after hearing about the burglary, she reported her observationsto thepolice. Brandt then picked Kaczmarektspicture 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 itwas 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 statementby theDistrict Court influencedhim not to take the stand and testify onhis ownbehalf. Kaczmarek also moved the District Court to allow him to call Malloytsprobation 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 isinsufficient testimony to corroborate the testimony of the accomplice. Section 46-16-213, MCA, requires corroboration of an accomplicelstestimony 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 itmerely shows the commission of the offense or the circumstances thereof." Section 46-16-213,MCA. Wehave summarized in prior cases the guidelines for testing the sufficiency of corroborating evidence: To be sufficient, corroborating evidence must showmore than that a crime was in fact committed or the circumstances of itscommission. Itmust raise more than a suspicion of the defendant's involvement in, or opportunity to commit, the crime charged. But corroborative evidenceneednotbe sufficient,by itself, to support a defendant's conviction or even tomake 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 lightmost favorable to the State. Statev. Conrad (Mont. 1990), 785 P.2d 185, 187, 47 St.Rep. 32, 34. The corroborating evidenceneed onlytend to connect thedefendantwith 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 isnot 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, 621P.2d 1066, is distinguishable from the case atbar. 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 Procedureand 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 drivinghiswhite Ford Granada around Shelby thenight of the crime. Amber Brandt testified that a white Ford Granada containing two men, onewhose build matched thedefendantls,drove up and parked outside thevictim's house. She later sawKaczmarek 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, Kaczmarekcontends that the evidence is insufficient to support the conviction of burglary. We disagree. Theproper standard of review for sufficiency of the evidence in a criminal case is "whether, after viewing the evidence in the light most favorableto theprosecution 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, 47St.Rep. 681, 687;Statev. 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 testimonywas sufficiently corroboratedby the testimonyof Brandt and thedefendant himself, the testimony of Malloy sufficiently establishes the essential elements of burglary in this case. Malloy testified that it was Kaczmarektsidea 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 thepurpose ofproving 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 admissibleunder 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 theprosecution 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 defendanthad notice from the outset that Malloy was likely to testify against him and therefore had ample time to secure witnesses for the purpose of discreditingMalloytstestimony. Furthermore, the District Court granted the Statets motion for discovery filed pursuant to 6 46-15-323, MCA, on February 1, 1989,and ordered thedefendant todisclose to the State thenames 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 onMarch 9, 1989,thedefendant agreed toprovide the State with a complete list of all defense witnesses with their addresses and statements ten daysprior 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 courtmay for good

causepermit. Moreover,thedistrict courtmaypreclude adefendant 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 Carkulisv. 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 indenying Kaczmarek'smotion to call Skiba as a witness.

Finally,Kaczmarek argues thathe was substantiallyprejudiced 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 isthat he drove the carup there. And of course, the testimony is he drove the car to the auction. While it is indeed thin, I'm going to let thematter 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 testimonybefore 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 cannotbe raised as error on appeal. See $5 46-20-104, 46-20-701,MCA. The~istrict Courtwas not required to reconsider the issue

## sua monte. Defendant's decisionmust 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: