STATE v WEAVER
Annotate this Case
Download PDF
No. 81-89 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 THE STATE OF MONTANA, Plaintiff and Respondent, VS . DAN D W A L WEAVER, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone Honorable Robert Wilson, Judge presiding. Counsel of Record: For Appellant: Felt and Martin, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Submitted on briefs: October 15, 1981 Decided: Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. T h i s i s a n a p p e a l from a c o n v i c t i o n o f f e l o n y t h e f t in a case tried in the Thirteenth Judicial District, o f Montana, i n a n d f o r t h e County o f Y e l l o w s t o n e . State The c a s e was t r i e d t o a j u r y and a p p e l l a n t a p p e a l s h i s c o n v i c t i o n . In this case counts: Count I, mischief, a felony; the appellant theft, a was felony; charged Count 11, Count 111, a n a t t e m p t ; deceptive practices, a felony. with four criminal and C o u n t IV, A t a p r e t r i a l h e a r i n g Count I1 was d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and a t t h e same t i m e a p p e l l a n t was g r a n t e d s e p a r a t e t r i a l s on e a c h o f counts. the A p p e l l a n t was t r i e d on J u n e 1 4 , 1 9 8 0 , on C o u n t I11 and a f t e r n i n e h o u r s o f c o n s i d e r a t i o n t h e j u r y was u n a b l e t o reach a verdict. On J u l y 1 7 , 1 9 8 0 , a t t h e t i m e o f t h e S t a t e ' s m o t i o n t o s e t a t r i a l d a t e f o r Count I , t h e t r i a l c o u r t g r a n t e d a r e q u e s t f o r a continuance because of a r t i c l e s i n the B i l l i n g s Gazette. granted, allegedly prejudicial S e v e r a l c o n t i n u a n c e s were and t h e c a s e went t o t r i a l on O c t o b e r 7 , 1980, a t which t i m e o t h e r c o u n t s a g a i n s t t h e a p p e l l a n t were e x c l u d e d from t h e t r i a l . the District Following h i s c o n v i c t i o n of Court, on motion d i s m i s s e d C o u n t s I11 a n d I V o f of the felony t h e f t county t h e amended attorney, information i n v i e w of t h e f a c t he had b e e n c o n v i c t e d o f Count I . On S e p t e m b e r 2 1 , 1 9 7 9 , M i c h a e l W a t t s , a t r u c k d r i v e r , reported t o the B i l l i n g s police t h a t h i s flat-bed loaded with Bur k l a n d same, Lumber had truckstop. 6,072 been eight-foot, Company of stolen from Watts had 2 x Livingston, loaded the this 4 studs, Montana, Billings lumber East trailer, with the m a r k s on Parkway a t Livingston, Montana, a n d had d r i v e n H e parked September 1 9 . t o B i l l i n g s on t h e e v e n i n g o f it i t a t t h e E a s t Parkway T r u c k s t o p t h a t e v e n i n g and went t o h i s home. The f o l l o w i n g d a y h e c h e c k e d and f o u n d t h e t r u c k i n p l a c e and t h e d a y a f t e r , t h e 2 1 s t , when h e went o u t t o g e t h i s f l a t - b e d t r a i l e r , he found it m i s s i n g . The traps, trailer, equipped t a i l b o a r d , headboard, with fold-down grain sides, and t a r p s , was owned by W a t t s who had b e e n h i r e d t o h a u l t h e B u r k l a n d lumber t o Winona, Minnesota. The lumber had b e e n l o a d e d a c c o r d i n g t o s t a n d a r d B u r k l a n d Lumber p r o c e d u r e s i n steel-banded b u n d l e s and was w o r t h a b o u t one d o l l a r a b o a r d w h o l e s a l e o r a t o t a l o f a b o u t $6,135 a t m i l l p r i c e . Each b o a r d o f wood b o r e a d i s t i n c t i v e B u r k l a n d m i l l s t a m p on b o t h e n d s , and e a c h was s t a m p e d w i t h an e x c l u s i v e Burkland mill number, 161. Watts testified t h a t a t t h e t i m e t h e t i m b e r was l o a d e d it was s e c u r e d w i t h red t a r p s , which b e l o n g e d t o him and w e r e t i e d down w i t h yellow nylon rope. The W a t t s stolen trailer was recovered twenty-five d a y s l a t e r , f i f t e e n o r t w e n t y m i l e s f r o m B i l l i n g s i n what i s known as the Pryor Creek i t was m i s s i n g recovered, area. At t h e lumber, the time it was a tailboard, tarps, 1979, in and o t h e r e q u i p m e n t . S e v e r a l weeks later i n October while the c o u r s e o f i n v e s t i g a t i n g a f i r e on t h e p r e m i s e s of a p p e l l a n t , officers of observed large p r o p e r t y of the Yellowstone quantities of County new Sheriff's lumber t h e a p p e l l a n t ' s Dry C r e e k m e a t The lumber was a l l e i g h t - f o o t , Department stacked on the packing p l a n t . 2 x 4 s t u d s , each bearing t h e d i s t i n c t i v e B u r k l a n d Lumber m a r k i n g s and s t a m p e d w i t h the Burkland mill stamp, 161. When asked by Deputy Sheriff George Jensen on October 25, 1979, about the lumber that was stacked on his property, appellant told Jensen that some of the stacked lumber was his and some of it belonged friend. to a He told the deputy that he was using the stacked lumber for remodeling his sausage shop in Billings and his meat packing plant in Lockwood. Upon later investigation Mike Boyett, a detective with the sheriff 's department who was aware of the theft of the lumber, thought that the lumber on the Dry Creek property might be the lumber which had been reported stolen. The Burkland stamps, the mill number 161 on each stud, identified Burkland as the place of manufacture and this had been reported stolen approximately a month earlier. An investigation by Detective Boyett revealed that according to Ed Carroll, Burkland's superintendent, Burkland had not sold any lumber in Montana to any Montana retail outlet during the period of time involved herein and that the last lumber sold by Burkland January 1977. to a Montana retail outlet had been in Carroll told Boyett also that he was unaware of any retail purchases in small quantities from the mill by any Montana buyer during August or September 1979. The appellant testified that he had no idea that the Burkland evening phone lumber was stolen. of September call property. from His story was that on the 20, 1979, he received someone asking to store an anonymous lumber on his He testified that he thought he recognized the voice on the phone but on reflection realized he did not. When asked about the lumber by Boyett he said that he agreed to store the lumber for a fee. Later he testified at the t r i a l t h a t h e a g r e e d t o s t o r e t h e lumber a s a f a v o r f o r t h e mysterious caller, but that he did not discuss with the mysterious c a l l e r t h e q u e s t i o n of t h e f e e f o r s t o r a g e . Weaver t e s t i f i e d t h a t sometime on S e p t e m b e r 2 1 , 1 9 7 9 , a semi-trailer load of e i g h t - f o o t , 2 x 4 s t u d s appeared i n h i s y a r d a t t h e m e a t p a c k i n g p l a n t j u s t s o u t h o f Lockwood. An u n s e e n t r a c t o r brought it t h e r e and an unseen would h a u l t h e empty t r a i l e r away l a t e r t h a t d a y . tractor Appellant t e s t i f i e d t h a t when h e went t o work t h e m o r n i n g o f S e p t e m b e r 21, he was s u r p r i s e d t o s e e t h e amount o f lumber t h a t was stored. H e s a i d when h e l o o k e d a t t h e l o a d , h e n o t i c e d f i v e o r s i x b o a r d s were wedged o u t from t h e t r a i l e r i n t h e f r o n t p a r t o f t h e l o a d and when h e a t t e m p t e d t o p u s h t h e o f f e n d i n g b o a r d s i n t o a l i g n m e n t , t h e r e s t r a i n i n g s t r a p b r o k e and some o f t h e lumber f e l l t o t h e g r o u n d . unload the stacked. about lumber remaining By t h e e n d o f nine stacks cross-hatched, of on I t t h e n was n e c e s s a r y t o the trailer and t h e day on t h e 2 1 s t , lumber on the have it t h e r e were property, carefully behind o r near t h e a p p e l l a n t ' s loading dock. A p p e l l a n t t e s t i f i e d h e removed t h e m a j o r i t y o f t h e wood f r o m t h e t r a i l e r by u s i n g a f r o n t - e n d l o a d e r and i n a d d i t i o n p a i d six persons to help stack the wood. The individuals employed t o d o t h i s w e r e t o l d t o work f a s t and t h e y would be paid well. They were p a i d more t h a n t h e going rate for t h e i r a f t e r n o o n ' s work. Sometime d u r i n g t h a t d a y R o b e r t Young, of appellant, came i n t o t h e yard and h e l p e d an a s s o c i a t e himself with a p p e l l a n t ' s blessings t o a pickup load of 2 x 4 s t u d s f o r a h o u s e a p p e l l a n t was b u i l d i n g f o r Young. No payment was made by Young t o a p p e l l a n t f o r t h i s amount o f wood. Appellant t e s t i f i e d t h a t sometime d u r i n g t h e d a y a f t e r u n l o a d i n g t h e trailer phone and s t a c k i n g t h e l u m b e r , call before. from t h e p e r s o n he r e c e i v e d a m y s t e r i o u s who had called him the night He t e s t i f i e d t h a t no a r r a n g e m e n t s f o r r e m o v a l o f t h e t r a i l e r were made n o r was t h e r e a n y t h i n g s a i d a b o u t t h e s a f e k e e p i n g of t h e lumber. discussed. I n a d d i t i o n , no s e r v i c e f e e was H e t e s t i f i e d t h a t he was t o l d t o s e l l t h e lumber a t a p r i c e b e t w e e n s i x t y - f i v e and e i g h t y c e n t s p e r b o a r d t o u n s p e c i f i e d p e r s o n s who would p i c k up t h e wood and t o a n y o n e appellant knew who might be interested. Appellant's t e s t i m o n y was t h a t a s a b u i l d e r h e was a w a r e t h a t t h e r e t a i l p r i c e o f a 2 x 4 s t u d was i n e x c e s s o f o n e d o l l a r p e r b o a r d . According t o appellant, h e was t o l d to keep a record of s a l e s and a f t e r a t h r e e o r f o u r m i n u t e c o n v e r s a t i o n t h e c a l l t e r m i n a t e d and he never h e a r d from t h e c a l l e r a g a i n . D u r i n g t h e n e x t two months t h e a p p e l l a n t d i s p o s e d o f t h e lumber by s e l l i n g i t ; by g i v i n g i t t o h i s e m p l o y e e s i n l i e u of wages; sold an and by t a k i n g i t t o k e e p f o r h i m s e l f . undetermined q u a n t i t y of lumber t o persons He whose "names were c a l l e d t o him" and whom h e d i d n o t know. further testified purchases that because he the collected alleged no money mysterious caller He from the had not i n s t r u c t e d him on t h i s d e t a i l . A p p e l l a n t s o l d some o f t h e lumber t o R o b e r t Young a t eighty-five Mountains cents per and u s e d board, t o build which was Young's taken t o the Bull house. There is no showing t h a t h e c o l l e c t e d a n y money f o r t h e s e p u r c h a s e s . According Standifer to and J e f f Moll's case, the Moll appellant to he t a k e some o f allowed a Tracy t h e lumber. In a p p e l l a n t t e s t i f i e d t h a t n e i t h e r he n o r Young wanted to pay Moll for his labor on Young's house, and to resolve this dispute, appellant told Moll to take his wages out in lumber from the stacks of 2 x 4 studs and sell it for whatever he could get. arrangement Moll sold about 200 studs under this . According to his testimony, appellant thought that 1 perhaps the owner or someone else might pick up the lumber at the meat packing plant without his knowledge and that as a result he would have nothing to show for the time and money he had expended in storing the lumber. took He therefore 230 of the studs for himself, storing them in his garage and sausage shop to protect his interest. During the investigation, when it was determined by the sheriff's department that perhaps this was the stolen Burkland lumber, Deputy Sheriff Boyett removed a total of 3,144 of the studs from the meat packing yard. A total of 1,684 studs were taken from stacks on three locations in the yard. During that period of time, a neighbor informed the deputy there was more lumber in a shed where it could not be seen on the property, and the deputy and an assistant removed 1,460 studs on November 28 and 29. In addition to the Burkland lumber recovered by the sheriff's department at the Dry Creek plant, a detective, Robert Hirschi of the Billings police department, recovered some 500 of the studs from other locations in and around Billings. This included 63 studs from the residence of Jeff Moll, an employee of appellant; 137 studs from the garage of appellant's Billings residence; 97 studs from inside the appellant's search sausage shop in Billings. warrant later in December, After obtaining a Detective Hirschi r e c o v e r e d a s t a c k o f 230 s t u d s f r o m t h e r e s i d e n c e o f R o b e r t Young, who Montana. deck, a lived i n t h e B u l l Mountains s o u t h of Roundup, He o b s e r v e d a t t h e t i m e he g o t t h e s e s t u d s t h a t a shed, and t h e f r a m i n g o f t h e upper house b e i n g b u i l t a t t h e B u l l Mountain p o r t i o n s of s i t e was a entirely c o n s t r u c t e d of t h e B u r k l a n d 2 x 4 s t u d s , and h e p h o t o g r a p h e d a l l of t h i s . These photographs were submitted a t t h e time of t r i a l . During December tarps 13, between appellant's the 1979, investigation p o r t i o n s of a loading Dry Creek dock Hirschi discovered t h e t a i l b o a r d and and a property. holding This pen on the red on the property was i d e n t i f i e d by W a t t s , t h e t r u c k d r i v e r , a s h i s t a i l b o a r d a n d t a r p s and a s t h e e q u i p m e n t u s e d by him on t h e t r a i l e r t h a t was l o a d e d w i t h t h e B u r k l a n d s t u d s which had been stolen from t h e B i l l i n g s t r u c k s t o p . T r i a l commenced o n O c t o b e r 7 , 1 9 8 0 , and t h e f o l l o w i n g day, t h e B i l l i n g s G a z e t t e , t h e l o c a l newspaper, p r i n t e d t h e following article concerning the background appellant: "BUSINESSMAN RETURNS TO COURT "Dan Weaver was n e v e r c h a r g e d w i t h a r s o n f o r t h e f i r e t h a t d e s t r o y e d Dry C r e e k Meat Co. l a s t O c t . 25. The law s a y s t h a t a man c a n n o t be c h a r g e d w i t h a r s o n f o r s e t t i n g a f i r e h i s own p r o p e r t y . " I n s t e a d , h e was c h a r g e d w i t h c r i m i n a l m i s chief i n connection with the blaze t h a t d e s t r o y e d h i s meat p a c k i n g b u s i n e s s . Those c h a r g e s were d r o p p e d f o r l a c k o f s u f f i c i e n t e v i d e n c e l i n k i n g him t o t h e c r i m e . " L a s t summer h e was t r i e d f o r a t t e m p t e d t h e f t , accused of t r y i n g t o defraud h i s i n s u r a n c e company by c l a i m i n g f i r e - l o s s e s r e s u l t i n g from t h e i n c i d e n t t h a t he d i d n ' t deserve. A f t e r n i n e d a y s o f t e s t i m o n y and a 10-hour d e l i b e r a t i o n t h e j u r y d e c l a r e d i t s e l f of the hung. Informed s o u r c e s s a y [be] t o o expensive t o r e - t r y . that case may "Weaver, h o w e v e r , f o u n d h i m s e l f b a c k i n c o u r t t h i s week t h i s time charged with possessing 3,400 p i e c e s of s t o l e n lumber, i n i t i a l l y f o u n d by i n v e s t i g a t o r s n e a r t h e b u r n e d m e a t packing p l a n t . "County P r o s e c u t o r David Gor t o n t o l d t h e j u r y Tuesday t h a t he w o u l d n 't a t t e m p t t o p r o v e t h a t 3 4 - y e a r - o l d Weaver s t o l e t h e two-by-four b o a r d s , v a l u e d a t one d o l l a r a p i e c e , from a f ully-loaded s e m i - t r a i l e r t r u c k parked a t a H e i g h t s t r u c k s t o p S e p t . 21, 1979. " B u t Weaver knew t h e lumber was s t o l e n G o r t o n t o l d t h e j u r y i n h i s o p e n i n g r e m a r k s , and h e a t t e m p t e d t o c o n c e a l t h e lumber a t a number o f l o c a t i o n s i n c l u d i n g Dry C r e e k Meat, a s a u s a g e s h o p h e had n o t y e t opened and h i s E l d o r a d o D r i v e home. " A t t o r n e y Ken F r a z i e r t o l d t h e j u r y t h a t h i s c l i e n t , whom he d e s c r i b e d a s a n ' u n s o p h i s t i c a t e d b u s i n e s s m a n ' , r e c e i v e d a n anonymous phone c a l l l a t e l a s t S e p t e m b e r f r o m a man a s k i n g him t o s t o r e some lumber f o r him. Weaver, he s a i d , was n o n c o m m i t t a l b u t t h e f o l l o w i n g morning d i s c o v e r e d a f u l l y - l o a d e d s e m i - t r a i l e r a t Dry C r e e k Meat, 2752 Highway 87. "When t h e b u s i n e s s m a n n o t i c e d t h a t t h e lumber was l o o s e l y s t a c k e d and a t t e m p t e d t o t i g h t e n t h e b a n d s , h a l f o f t h e t r u c k l o a d f e l l on t h e H e l a t e r asked s e v e r a l of h i s ground. e m p l o y e e s t o h e l p him s t a c k t h e lumber n e a r t h e b u i l d i n g and i n a s t o r a g e s h e d n e a r b y , h i s lawyer s a i d . "The f o l l o w i n g n i g h t Weaver g o t a n o t h e r phone c a l l a s k i n g him t o s e l l some o f t h e l u m b e r , which he d i d . P a r t o f t h e l o a d was h a u l e d t o t h e home o f W i l l i a m R o b e r t Young s o u t h o f Roundup, which Weaver was h e l p i n g t o b u i l d . "Young i s e x p e c t e d t o t e s t i f y Weaver's c a s e c o n t i n u e s . " At 1979, t h e c o n c l u s i o n of appellant moved possible prejudice for created today when t h e S t a t e ' s c a s e on O c t o b e r 8 , a mistrial on by t h e a r t i c l e and t h i s m o t i o n was d e n i e d . Two i s s u e s a r e p r e s e n t e d f o r r e v i e w : the grounds of Was a p p e l l a n t d e n i e d a f a i r 1. t r i a l because of a newspaper a r t i c l e p u b l i s h e d t h e s e c o n d d a y o f t h e t r i a l ? 2. to Did t h e S t a t e f a i l t o p r o d u c e s u f f i c i e n t e v i d e n c e establish appellant's knowledge that the property was stolen? A p p e l l a n t a r g u e s h i s r i g h t t o a f a i r t r i a l , which i s guaranteed by the Sixth Amendment of the United C o n s t i t u t i o n and by A r t i c l e 11, S e c t i o n 4 , Constitution, Estes v. L.Ed.2d Texas 543; In mistrial was violated (1965), I r v i n v. denying the court the in this 3 8 1 U.S. Dowd indicated of t h e Montana criminal proceeding. 532, 85 S . C t . ( 1 9 6 1 ) , 366 U.S. appellant's that admonish t h e j u r y and a c c o r d i n g l y , States counsel's it f e l t 1628, 14 722, 81 717, motion for a i t was b e s t t o t h i s was done j u s t p r i o r t o t h e e v e n i n g r e c e s s on O c t o b e r 8 , 1980: "THE COURT: L a d i e s a n d G e n t l e m e n , you w i l l r e c e s s a t t h i s time. L e t me caution very s t r o n g l y t h a t you a r e t o r e f r a i n f r o m r e a d i n g t h e B i l l i n g s G a z e t t e , now u n t i l you t a k e t h i s matter for deliberation. I want you t o r e f r a i n from l i s t e n i n g t o t h e t e l e v i s i o n b r o a d c a s t s b e c a u s e I d o n ' t want you t o i n a d v e r t e n t l y be e x p o s e d t o any a c c o u n t s t h a t may be on t h e news c o n c e r n i n g t h i s c a s e . I d o n ' t want you t o be i n f l u e n c e d i n any way by a n y m a t t e r o t h e r t h a n what you s e e and h e a r i n t h i s courtroom d u r i n g t h i s t r i a l . There h a v e b e e n r e p o r t e r s p r e s e n t f r o m time t o t i m e during t h i s case. They h a v e n o t been h e r e c o n t i n u o u s l y l i k e you h a v e . You a r e t h e o n e s t h a t know more a b o u t t h i s c a s e t h a n a n y o n e e l s e a t t h i s time and I d o n ' t want you t o be i n f l u e n c e d by news a c c o u n t s o r a n y t h i n g e l s e until after you have this case for d e l i b e r a t i o n and make y o u r own d e l i b e r a t i o n on i t , s o p l e a s e r e f r a i n from exposing y o u r s e l f i n a d v e r t e n t l y t o any a c c o u n t s t h a t may o r may n o t o c c u r on t e l e v i s i o n o r i n t h e n e w s p a p e r s u n t i l you a r e t h r o u g h w i t h y o u r deliberations. W w i l l r e c e s s now u n t i l e 10:OO tomorrow m o r n i n g and I a n t i c i p a t e t h a t w i l l be given to you for the case d e l i b e r a t i o n sometime a r o u n d noon tomorrow. So you c a n p r e p a r e your p r i v a t e d o i n g s accordingly. You w i l l be i n d e l i b e r a t i o n tomorrow a f t e r n o o n . W e w i l l r e c e s s now u n t i l 10:OO tomorrow m o r n i n g . " Appellant argues t h a t the t r i a l court erred in its f a i l u r e t o g r a n t a m i s t r i a l ; and i n t h e v e r y l e a s t , t h a t t h e court should have interrogated concerning their exposure prejudicial newspaper article the to members the jury inflammatory the and published of by the Billings G a z e t t e on t h e s e c o n d d a y o f t r i a l . T h i s Court h a s n o t gone a s f a r upon by appellant Margoles v. cert. and United denied, urged States for the case adoption (7th Cir. ( 1 9 6 9 ) , 396 U.S. as 833, in 1969), relied this 407 case, F.2d 727, wherein t h e c o u r t s e t down t h e r u l e f o r t h a t c i r c u i t i n h o l d i n g : ". . . t h e p r o c e d u r e r e q u i r e d by t h i s C i r c u i t where p r e j u d i c i a l p u b l i c i t y i s b r o u g h t t o t h e c o u r t ' s a t t e n t i o n d u r i n g a t r i a l is t h a t t h e c o u r t must a s c e r t a i n i f a n y j u r o r s who had been e x p o s e d t o s u c h p u b l i c i t y had r e a d o r h e a r d t h e same. Such j u r o r s who r e s p o n d a f f i r m a t i v e l y m u s t t h e n be e x a m i n e d , i n d i v i d u a l l y and o u t s i d e t h e p r e s e n c e o f t h e o t h e r jurors, t o determine t h e e f f e c t of t h e publicity." 407 F . 2 d a t 735. S e e a l s o , U n i t e d S t a t e s v . H a n k i s h ( 4 t h C i r . 1 9 7 4 ) , 502 F.2d 71; United S t a t e s v. cert. denied, (1976), Jones (4th Cir. 426 U.S. 922; 1 9 7 6 ) , 542 F.2d S t a t e v. 186, Keliiholokai ( 1 9 7 7 ) , 58 Haw. 3 5 6 , 569 P.2d 8 9 1 . T h i s C o u r t r e c e n t l y i n S t a t e v. K i r k l a n d ( 1 9 7 9 ) , Mont. , 602 P.2d 586, 36 S t . R e p . conviction against the defendant's 1963, sustained the assertion that the t r i a l c o u r t had e r r e d i n n o t a l l o w i n g him t o i n t e r r o g a t e members of the jury concerning their i n f l a m a t o r y and p r e j u d i c i a l news exposure releases. to W e allegedly refused to a d o p t t h e r u l e p r e v i o u s l y m e n t i o n e d which r e q u i r e d t h e t r i a l judge, i n e v e r y c a s e where p r e j u d i c i a l news r e l e a s e s w e r e brought t o h i s attention during the t r i a l , jurors to determine prejudicial news publicity. the release, judge's any and judgment of them so, if ". . . W held t h a t e trial later whether t o examine t h e had the read effect of the we prefer t o leave t h a t t o and d i s c r e t i o n , subject t o h i s r e v i e w a f t e r v e r d i c t on a p p r o p r i a t e m o t i o n , r e v i e w on a p p e a l . " the and o u r I n Kirkland w e noted t h a t t h e abuse of d i s c r e t i o n s t a n d a r d had b e e n c l e a r l y s e t f o r t h i n numerous c a s e s d e a l i n g w i t h a change of venue i s s u e . a r e a d d r e s s e d t o t h e sound d i s c r e t i o n of Such m a t t e r s the t r i a l court, and u n l e s s t h e r e h a s b e e n a c l e a r a b u s e o f d i s c r e t i o n , i t s r u l i n g w i l l n o t be d i s t u r b e d . ( 1979 - Mont . I , 604 See a l s o S t a t e v. P.2d 1224, Williams St.Rep. 36 2328; S t a t e v . Hoffman ( 1 9 3 3 ) , 94 Mont. 5 7 3 , 23 P.2d 972; S t a t e v . L e w i s ( 1 9 7 6 ) , 169 Mont. 2 9 0 , 546 P.2d 5 1 8 . A p p e l l a n t a r g u e s t h a t e v e n u n d e r t h e r u l e s e t down i n K i r k l a n d t h e r e was h e r e a c l e a r a b u s e o f d i s c r e t i o n i n t h a t under t h e c i r c u m s t a n c e s , t h e c o u r t should have i n t e r r o g a t e d the jurors. trial He argues t h a t in the c o u r t had p r o p e r l y c o n t i n u e d previous prejudicial c o g n i z a n t of during surrounding the the t r i a l reports the potentially f u r t h e r news r e p o r t s ; veniremen news instant case and (1) t h e d a t e due therefore prejudicial possibilities to was of ( 2 ) t h a t t h e r e s p o n s e f r o m some o f t h e voir dire appellant indicated was that known to the some publicity of p r o s p e c t i v e j u r o r s and o n e had b e e n e x c u s e d f o r c a u s e ; the (3) t h e d e f e n s e c o u n s e l had s p e c i f i c a l l y r e q u e s t e d p r i o r t o t h e t r i a l t h a t no m e n t i o n be made o f the appellant's previous criminal admonished charges; (4) the court the jury to refrain from exposing themselves to the reports on only one occasion which was late in the afternoon of the day the article was published; and record in this case (5) contrary to Kirkland, the indicates continuous and massive publicity in the community. On the record in this case the appellant was convicted of a felony theft following a fair trial by an impartial jury. There are no indications on the record that the appellant's right of fair trial was in peril at any stage by a massive publicity pervading the entire community and there are no specific jurors' impartiality. instances of failure of the The United States Supreme Court has held that in order to reverse a conviction on the ground of prejudicial publicity there must be an inherent lack of due process in the proceedings. Estes, supra, 381 U.S. at 532; Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. Or, there must be a showing by the defendant of "the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality." Murphy v. Florida (1975), 421 U.S. 794, 800, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 595; Irvin v. D o w ~ , supra, 366 U.S. at 723. In Marshall v. United States (1959), 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250, the Supreme Court of the United States held: "A bare fear respecting the true state of the juror's mind has no place here. Error will not be presumed; after verdict the defendant has the laboring oar. " This has long been the law in Montana. Kirkland, supra. Here the appellant has failed to make the requisite showing of a prejudice on record. In addition we note that the sole existence of the i s , t h e a r t i c l e o f O c t o b e r 8 which r e f e r s t o publicity--that two p r e v i o u s c h a r g e s b r o u g h t against appellant--also notes t h a t t h e d i s p o s i t i o n o f t h o s e c h a r g e s was i n h i s f a v o r . The issues The of article the is a trial on single, t h e f t were factual, a p p e a r i n g i n t h e m i d d l e of it distinguishes from a p p e a r on t h a t p a g e . the appellant, then noneditorialized page B-1 reports in process. of of other account the paper; court nothing cases that The a r t i c l e s t a t e d f a c t s f a v o r a b l e t o is, that one of the charges had been d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and t h e o t h e r was t r i e d r e s u l t i n g i n a hung j u r y . T h i s Court observed long ago i n S t a t e v . J a c k s o n ( 1 8 9 0 ) , 9 Mont. 508, 523, 24 P. 2 1 3 , 217: "The d a y h a s p a s s e d when b l a n k i g n o r a n c e and s t u p i d i t y i n a juryman were h i s b e s t q u a l i f i cations for service. T h e r e i s more i n t e l l i g e n c e on t h e modern j u r y ; and i n t e l l i g e n t persons, t h e s t a t u t e contemplates, a r e able t o r e a d contemporary h i s t o r y , and s t i l l p r e s e r v e t h e i r mental balance. On t h e t r i a l of a c a s e , h i g h l y i m p r o p e r and i n c o m p e t e n t t e s t i m o n y may a c c i d e n t a l l y f a l l f r o m t h e l i p s o f a sworn w i t n e s s on t h e s t a n d . This occurs i n nearly every t r i a l . Such e v i d e n c e is s t r i c k e n o u t by t h e c o u r t , and t h e j u r y i n s t r u c t e d t o d i s r e g a r d i t . The c o u r t h e r e i n had e q u a l o p p o r t u n i t y t o c o r r e c t a n y p o s s i b l e e v i l i n f l u e n c e of t h e newspapers." In 139, a 143, c o n t e n t of later 337 case, P.2d S t a t e v. 924, 927, Board the ( 1 9 5 9 ) , 1 3 5 Mont. Court considered the a n a r t i c l e which d i d n o t r e v e a l a p r e j u d i c e s o g r a v e a s t o d e n y t h e d e f e n d a n t a f a i r t r i a l by i t s e f f e c t s . The article was not one capable of arousing f e e l i n g s o r e s t a b l i s h i n g a community o p i n i o n . community Applying t h i s r a t i o n a l e t o t h e e x t e n s i v e p u b l i c i t y on r e c o r d i n t h e c a s e , 616 P.2d 3 4 1 , 1563, 1572, t h i s Court noted: "We h a v e no o f S t a t e v . Armstrong ( 1 9 8 0 ) , 350, 37 St.Rep. indication here that the Mont. published accounts were so passionate as to excite defendant. S t a t e v. undue prejudice against ( 1 9 7 0 ) , 1 5 6 Mont. Logan 48, the 473 P.2d 833." W e which have previously found is n o t e d i t o r i a l i z e d , that newspaper publicity which a p p e a r s t o be f a c t u a l l y d o n e , a n d which d o e s n o t c o n t a i n i n f l a m a t o r y s t a t e m e n t s w i l l n o t c o n s t i t u t e a showing o f p r e j u d i c e upon which t o b a s e a n abuse of (1980)1 the trial court's - Mont . , discretion. State Bashor v. 614 P.2d 470, 475, 37 S t . R e p . 1098, 1 1 0 2 ; S t a t e v . B i s c h e r t ( 1 9 5 7 ) , 1 3 1 Mont. 1 5 2 , 1 5 6 , 308 P.2d 969, 971. As previously noted, absent any indication on the r e c o r d o f p r e j u d i c e t o a p p e l l a n t s o g r a v e a s t o d e n y him a f a i r t r i a l , w e f i n d t h e c o u r t below p r o p e r l y e x e r c i s e d i t s d i s c r e t i o n by d e n y i n g t h e m o t i o n f o r a m i s t r i a l . admonition to the jury was sufficient to Here t h e correct any damaging i n f l u e n c e o n e news a r t i c l e m i g h t h a v e had u n d e r t h e circumstances. The whether second issue is directed at the question of t h e r e was s u f f i c i e n t e v i d e n c e upon w h i c h t h e j u r y could reach a v e r d i c t convicting t h e appellant of t h e f t , a f e l o n y , p u r s u a n t t o s e c t i o n 4 5 - 6 - 3 0 1 ( 3 ) ( c ) , MCA. The amended "purposely or property, to-wit: t h a n $150.00, Lumber Co., information knowingly charges obtained that the control appellant over stolen 3 , 4 0 0 2 " x 4 " wood s t u d s , o f a v a l u e o f more owned by B u r k l a n d S t u d s , I n c . , and/or Western Trucking and/or Company, Lampert knowing the p r o p e r t y t o have b e e n s t o l e n by a n o t h e r and u s e d , c o n c e a l e d o r abandoned t h e p r o p e r t y knowing s u c h u s e , concealment o r abandonment p r o b a b l y would d e p r i v e t h e owner o f t h e p r o p e r t y A p p e l l a n t a r g u e s t h a t d u r i n g t h e t r i a l t h e S t a t e made a c o n c e r t e d e f f o r t t o i n t r o d u c e a s much e v i d e n c e a s p o s s i b l e tending to show t h a t the a p p e l l a n t had possession of the concealed the a l l e g e d l y s t o l e n lumber and t h a t he u s e d o r lumber. i n reviewing t h e record H e argues t h a t failed theft to correctly as direct charged or i d e n t i f y t h e elements of by neglecting circumstantial, to showing produce that the State t h e crime of any evidence, appellant knew t h e lumber had b e e n s t o l e n a t t h e t i m e h e t o o k p o s s e s s i o n . Appellant possession it that of was a r g u e s t h a t he t e s t i f i e d how he came i n t o the allegedly stolen until stolen after lumber the investigate the f i r e a t h i s plant. the State doubt, had t h e burden of and police never came knew out to Appellant argues t h a t proving, beyond a reasonable t h a t a p p e l l a n t knew t h e p r o p e r t y was s t o l e n a t t h e t i m e h e r e c e i v e d it and t h a t i t f a i l e d t o c a r r y t h a t b u r d e n . A p p e l l a n t r e l i e s on t h e f a c t t h a t mere p o s s e s s i o n o f s t o l e n p r o p e r t y i s n o t i n and o f i t s e l f a c r i m i n a l o f f e n s e . v. Peters ( 1 9 6 5 ) , 146 Mont. 188, 405 P.2d 642; State State v. J i m i s o n ( 1 9 7 5 ) , 1 6 8 Mont. 1 8 , 540 P.2d 3 1 5 . As State's to burden the knowledge element of the offense is s e t f o r t h i n s e c t i o n 45-2-101(27), which s t a t e s : "Knowingly -- a p e r s o n a c t s k n o w i n g l y w i t h respect t o conduct or t o circumstance d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e when h e i s a w a r e o f h i s c o n d u c t o r t h a t t h e c i r c u m s t a n c e e x i s t s . A p e r s o n a c t s knowingly with r e s p e c t t o t h e r e s u l t of conduct d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e when h e i s a w a r e t h a t i t is h i g h l y p r o b a b l e t h a t s u c h r e s u l t w i l l b e c a u s e d by h i s conduct. When knowledge o f t h e e x i s t e n c e o f a p a r t i c u l a r f a c t is an element of an o f f e n s e , s u c h knowledge i s e s t a b l i s h e d i f a the MCA, person is aware of a high probability of its existence. Equivalent terms such as ' knowing' or ' with knowledge' have the same meaning. " To reach the verdict, the trier of fact had to conclude that appellant knowingly obtained control of the stolen lumber, knowing it to be stolen by another, and that he used, concealed or abandoned the lumber knowing that the owner would thereby probably be deprived of the lumber. Here there existed substantial credible evidence, consistent with appellant's guilt and inconsistent with his innocence, which persons of reasonable minds might accept as adequate to support their conclusions. (19801, - Mont . , See State v. Armstrong 616 P.2d 341, 346, 37 St.Rep. 1563. In this case, the State first had to establish that appellant "knowingly" obtained control of the lumber. the statute above cited, this element was Under proved by establishing that he "was aware of his conduct in doing the act." Secondly, the State had to establish that he obtained control "knowing" the property to have been stolen. Under the statute this element was established by showing that appellant was "aware of a high probability" that the wood was stolen. Last, the State had to establish that appellant used the lumber "knowing" his use would probably deprive the owner of the property. This element was proved by showing that it was "highly probable that the result caused by his conduct" would deprive the owner of his property. All of these elements were clearly proved in this case. Intent may be inferred by the jury from what the defendant says and does and from all circumstances involved in the transaction. (19791, - Mont . -, the facts and State v. Jackson 589 P.2d 1009, 36 St.Rep. 169, 176; State v. Hardy (1980), St.Rep. 1. - Mont . , 604 P.2d 792, 37 The facts and circumstances here established by the State are inconsistent with any conclusion other than the appellant was fully aware that he was exerting control over obviously stolen property and disposing of it in such a manner as to deprive the rightful owner of its use. The appellant erroneously contends his denial of knowledge and his explanation were unrefuted, and that as a consequence, the evidence supporting the requisite element of knowledge amounts only to suspicious circumstances insufficient to sustain the verdict are in error. Here, appellant's explanations were not unrefuted. The testimony of witnesses and the testimony of appellant himself placed in evidence an abundance of facts and circumstances which contradicted all explanations given by him. Whether appellant's explanations were more credible than the evidence to the contrary, or whether they were merely incredible, was a question of fact for the jury to determine. their The credibility of witnesses and the weight of testimony determine. are solely matters State v. Hart (1981), for the - Mont . -, jury to 625 P.2d 21, 27, 38 St.Rep. 133, 138. With respect to the elements of knowledge, the evidence here is circumstantial. Circumstantial evidence need not be regarded as inferior evidence; if it is of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt, circumstantial evidence is sufficient to sustain a conviction. State v. Cor (1964), 144 Mont. 323, 326, 396 P.2d 86, 88; State v. Proctor (1969), 153 Mont. 90, 94, 454 P.2d 616, 618. In determining the sufficiency of circumstantial evidence to make a case for the jury and to sustain a conviction all of the facts and circumstances must be taken into consideration collectively. State v. DeTonancour (1941), 112 Mont. 94, 98, 112 P.2d 1065, 1067. We find under the circumstances here that there are facts consistent with appellant's guilt and inconsistent with his innocence. Accordingly, the evidence is sufficient to sustain the appellant's conviction. Affirmed. We concur: Chief Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
