Hiebert v. Cascade County

Decision Date17 October 2002
Docket NumberNo. 01-087.,01-087.
Citation56 P.3d 848,2002 MT 233,311 Mont. 471
CourtMontana Supreme Court
PartiesCurt HIEBERT, Plaintiff/Appellant, v. CASCADE COUNTY, a Political Subdivision of the State of Montana; Cascade County Sheriff Barry Michelotti; Cascade County Commissioners Peggy Beltrone, Harry Mitchell and Roy Aafedt; City of Great Falls; and Investigating Officer Bill Bellusci, and Deputy Cascade County Attorney Julie Macek, Defendants/Respondents.

Patrick F. Flaherty, Attorney at Law, Great Falls, Montana, For Appellant.

Robert F. James, Cathy J. Lewis, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana, For Respondents (Bellusci and City of Great Falls).

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Petitioner, Curt Hiebert, brought this action for damages pursuant to 42 U.S.C. § 1983 in the District Court for the Eighth Judicial District in Cascade County. He alleged that the defendants, including Julie Macek and Bill Bellusci, concealed exculpatory information from him during a prior criminal proceeding in violation of his right to due process. The Defendant Julie Macek and Defendants Bill Bellusci and the City of Great Falls ("the City") filed two separate motions for summary judgment. After striking certain exhibits filed by Hiebert in opposition to the motions, the motions were granted. Hiebert appeals from the District Court's order granting summary judgment in favor of Defendants Bellusci and the City. We affirm the order of the District Court.

¶ 2 There are two issues presented on appeal:

¶ 3 1. Did the District Court correctly strike the exhibits submitted by the plaintiff in opposition to summary judgment?

¶ 4 2. Did the District Court err when it entered summary judgment as a matter of law in favor of Defendants Bellusci and the City?

FACTUAL AND PROCEDURAL BACKGROUND
A. Hiebert's Prior Criminal Case.

¶ 5 On July 27, 1996, Great Falls Police Officers Otto, Cameron and Cathel were dispatched to a disturbance at an apartment complex. The officers arrived at the complex and spoke with then-14-year-old Alaina Coles and her mother Sherry Coles, who told the officers that Curt Hiebert, a neighbor in the complex, assaulted Alaina.

¶ 6 Otto and Cameron spoke with Alaina and Alaina told the officers that Hiebert, a neighbor and acquaintance of Sherry and Alaina, told Alaina and her cousin Darcie Bourne that he would take them to eat at Burger King sometime later that evening. Later that evening, Alaina and Darcie returned to Hiebert's apartment to take him up on his offer. Hiebert told Alaina that he needed to speak with her alone inside. Alaina went inside and sat down, and shortly after, the alleged assault occurred.

¶ 7 Cameron's report described the alleged physical contact and sexual assault as follows:

Alaina also stated that Curt started talking to her sexually, saying things like "I've always liked the way you look". Alaina stated that Curt then started rubbing her on the thighs and arms and forced her on to the bed. Alaina stated that Curt had her by the arms and was on top of her saying "Everything will be alright." Alaina stated that Curt then got off the bed and on his knees on the floor and had his head between her legs area. Alaina stated she tried to convince Curt that she did not want to have sex with him and that she had another boyfriend. Curt continued to rub her inner thigh and legs and then allowed her up at which time he hugged her and let her go. [Emphasis added.]

¶ 8 Otto's report describes the alleged physical contact in a slightly different, but consistent manner. He stated:

Alaina said they talked for a few minutes [and] then Curt started rubbing her arm and then her thigh. Alaina told us Curt never said what he wanted to do, but she felt uncomfortable and knew he was intending to try and come on to her. Alaina said Curt then grabbed her arms and knelt in front of her, trying to push her on her back. Alaina told him no several times and Curt just mimicked what she said. Finally, Curt let her up and Alaina said she moved near the door. [Emphasis added.]

¶ 9 After speaking with Alaina, Otto and Cameron spoke with Hiebert, who denied that an assault occurred. Police concluded after their initial investigation and interview with Alaina that there was probable cause to arrest Hiebert for felony sexual assault. Hiebert was arrested, and bail was set in the amount of $25,000, but Hiebert remained in jail until the charges were dismissed over five months later on January 9, 1997.

¶ 10 After the arrest, Detective Bill Bellusci interviewed Alaina on July 31, 1996, to obtain a statement, and recorded the interview. In the transcript of the interview, Alaina described the alleged assault similarly to the previous reports:

"[H]e told me to come sit next to hi[m], so I sat next to hi[m], about a foot away from him, I guess, and—then he started hugging on me and saying how much he couldn't resist me and everything and it kindda—I just wanted to get pretty much out of there and—so I said, well, we better go now and everything and he kept saying no, just a couple more minutes and then he knelt down in front of me and he kept saying `sit down, sit down,' and I was already sitting down and he was trying to push me back and I was trying to stay up and finally I kept saying no, no, no, I can't do this.... [F]inally he let me up and he said, well, are you going to give me a hug—or something like that ... so I gave him a hug `cause I wanted to leave and then I walked out...."

In the interview with Bellusci, Alaina had the following to say about where she was touched:

[Q] Okay. Did he touch you anywhere?
[A] On my leg and on my arm.
[Q] What did he touch you with?
[A] Just his hands.
....
[Q] So he didn't touch your breast or your crotch area?
[A] No—
[Q] Did you ever tell anybody he had tried to do that?
[A] Yeah, when I left, I told Alisha.
[Q] What did you tell her—that he tried to do?
[A] I said that he pinched me in there. And then I told her the rest of the story later but I was kindda mad.
[Q] You believe that he was trying to advance on you sexually?
[A] yeah because he kept saying that it was hard to resist me and he told me before when he was drunk that he loved me and—he kept saying that he couldn't do anything with me because I was underage, I guess, so—and it would be statutory rape but—I wasn't going to do anything anyway.
[Q] When he touched you on his leg, where did he touch you on the leg[?]
[A] On the thigh.
[Q] Did you stop him from doing that?
[A] How could I?
[Q] But I mean did you make an attempt to stop him?
[A] Yeah, I kept saying don't—don't—just leave me alone.

¶ 11 Bellusci completed the report and attached the transcript of the interview on August 7, 1996, one day after Macek filed formal charges against Hiebert. In his deposition, Bellusci stated that he submitted the report to his supervisor, who signed it, but according to Macek's deposition, a copy of the report was not then sent to her office.

¶ 12 On September 19, 1996, the clerk for the public defender made a discovery request from the prosecutor's office, which sought exculpatory material and witness lists. On October 8, 1996, the District Court issued an Omnibus Hearing Order, which required similar disclosures from the prosecution.

¶ 13 In October 1996, Eric Olson, Hiebert's defense attorney, hired a private defense investigator, Robert Hoxter, to interview Alaina about the alleged sexual assault. Hoxter interviewed Alaina on October 28, 1996, and during the interview Alaina described the physical contact during the alleged sexual assault differently than previous statements. Hoxter summarized Alaina's statements as follows in an affidavit prepared for Hiebert's defense:

8.... Jane said he began rubbing her leg. (At that point Jane pointed to the outside of her thigh to show me where Hiebert had touched her).
....
12. I asked Jane if Hiebert ever touched any of her private parts. Jane said, "No." She was asked to describe how she was sitting on the bed. She displayed a closed knee, upright position. I asked Jane if she ever parted her knees before or during the time Hiebert knelt in front of her. She said, "No." I demonstrated with my knees and Jane denied Hiebert ever opened or forced open her knees. She was again asked if he touched any of her private parts and she said, "No."

¶ 14 In late October, Olson learned from Bellusci of his interview with Alaina and requested a copy of the report and interview from Macek on November 4, 1996. After two production requests and a court order, Olson received a copy of the transcript in late November.

¶ 15 On November 26, 1996, Hiebert moved to dismiss the charges for lack of probable cause. In support of his motion he submitted an affidavit from Hoxter and portions of the Hoxter interview and the Bellusci interview transcripts. Two days before the hearing for the motion to dismiss, on January 8, 1997, Macek moved to dismiss the charges, stating that "although probable cause existed to charge the defendant when it was charged, the victim later recanted and there is no longer probable cause to support the charges." The motion was granted January 9, 1997, and Hiebert was released from jail after approximately 166 days in jail.

B. Hiebert's Current Civil Case.

¶ 16 On June 9, 1998, Hiebert filed this action pursuant to 42 U.S.C. § 1983 against several defendants, including Bellusci and the City. Bellusci and the City moved for summary judgment on April 21, 1999. Hiebert filed a brief opposing the motions for summary judgment on July 29, 1999, and attached 24 exhibits with a personal affidavit of Jeff Lynch, Hiebert's attorney, swearing that the exhibits were accurate copies of items received during discovery and his own investigation.

¶ 17 The 24 exhibits included Otto's and Cameron's police reports, documents filed in the criminal proceeding, an affidavit from Eric Olson...

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