State ex rel. Carkulis v. District Court of Thirteenth Judicial Dist. of State of Mont., In and For Yellowstone County

• Decision Date: 05 January 1988
• Docket Number: No. 87-164,87-164
• Citation: 229 Mont. 265,746 P.2d 604,44 St.Rep. 1954
• Parties: , 56 USLW 2347 STATE of Montana ex rel. James CARKULIS, Relator, v. DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT OF the STATE OF MONTANA, In and For the COUNTY OF YELLOWSTONE, Honorable G. Todd Baugh, Presiding, Respondent.
• Court: Montana Supreme Court

Page 604

746 P.2d 604

229 Mont. 265, 56 USLW 2347

STATE of Montana ex rel. James CARKULIS, Relator, v. DISTRICT COURT OF the THIRTEENTH JUDICIAL DISTRICT OF the STATE OF MONTANA, In and For the COUNTY OF YELLOWSTONE, Honorable G. Todd Baugh Presiding, Respondent.

No. 87-164.

Supreme Court of Montana.

Submitted Sept. 2, 1987.

Decided Nov. 25, 1987.

Rehearing Denied Jan. 5, 1988.

Allen Beck, argued, Jeffrey T. Renz, argued, Billings, for relator.

Mike Greely, Atty. Gen., Judy Browning, argued, Asst. Atty. Gen., Helena, Harold Hanser, Co. Atty., Terry Swift, Deputy Co. Atty., Billings, Mike McGrath, argued, Co. Atty., Helena, for respondent.

SHEEHY, Justice.

In this case, we determine that the reciprocal pretrial discovery statutory provisions in criminal cases, for the purposes of this case and when applied as herein directed, are amenable to the state and federal constitutions and not barred by the provisions of the state and federal constitutions herein specified.

This is an original proceeding in this Court. Relator James Carkulis stands charged with the commission of a crime in the District Court, Thirteenth Judicial District, County of Yellowstone. The State had moved the District Court for an order requiring reciprocal discovery by the defendant under § 46-15-323(4), MCA (1985). In an order dated December 20, 1985, the District Court granted the State's motion for pretrial discovery but made no provision in the order for sanctions in the case of noncompliance.

On January 15, 1986, Carkulis filed in this Court a petition for writ of supervisory control or writ of certiorari (Cause no. 86-026 in this Court) relating to the December 20, 1985 District Court order. We ordered a response, and received an answer and briefs from the Attorney General of the State of Montana; the County Attorney of Yellowstone County; and amici curiae from the Moses Law Firm of Billings, Montana; Ungar Law Firm of Bozeman, Montana; and the Montana County Attorneys Association, through its president Mike McGrath of Helena, Montana. However, on December 11, 1986, after oral argument, we denied the petition for writ of supervisory control without prejudice upon the grounds that the District Court had imposed no sanctions, and might never impose sanctions, and that there was an adequate remedy by appeal.

Thus, the matter returned to the District Court. There, on March 9, 1987, Carkulis moved the District Court to reconsider its order of December 20, 1985. On April 9, 1987, the District Court issued its order denying Carkulis' motion to reconsider and further ordering that unless the defendant disclosed the materials set out in the December 20, 1985 order by May 1, 1987, he would "be precluded from offering the same at trial." The time for compliance by the defendant has passed and neither he, his counsel nor agents, have complied with the pretrial discovery order of the District Court. On May 4, 1987, Carkulis, as relator, filed his second petition for writ of supervisory control or writ of certiorari in this Court and thus the issue is before us again.

This time, a sanction has been imposed against the defendant, the most drastic available to the District Court under § 46-15-329, MCA, that of barring him from offering evidence not disclosed before May 1, 1987.

The first problem is whether this Court should consider the issuance of a writ, either of supervisory control, or of certiorari. Under § 27-25-102(2), MCA, if a district court, exercising judicial functions, has exceeded its jurisdiction, and if in the judgment of this Court there is no plain, speedy or adequate remedy, certiorari will lie. Section 27-25-102(2), MCA. In like manner, when a cause of action or a right has arisen under conditions making due consideration in the trial court and due appeal to this Court an inadequate remedy, or when supervision of a trial court other than by appeal is deemed necessary and proper, a writ of supervisory control may issue. Rule 17(a), M.R.App.P. A petition seeking original jurisdiction in this Court must make a showing of the inadequacy or unavailability of any other remedy, either in the District Court or by appeal to this Court. Crist v. Boyd (District Court) (1976), 172 Mont. 38, 560 P.2d 531; Petition of Waite (1964), 143 Mont. 321, 322, 389 P.2d 407, 408.

In the first proceedings brought by Carkulis in this Court, the Attorney General, in his memorandum in support of his response, agreed we should take jurisdiction of the proceedings, and pointed out a proper reason:

For example, if the court were to decline to take jurisdiction of this application, relator would presumably comply with the District Court's disclosure order. Should relator then be convicted and successfully appeal his case, it might prove unfair to him should a new trial be ordered, since the State would have the benefit of the very information which relator believes he should not be required to disclose. Once disclosures are made, they cannot be retracted. See Wardius v. Oregon, 412 U.S. 470, 478 [93 S.Ct. 2208, 2213-14, 37 L.Ed.2d 82] (1973).

Under the record as it is now presented to us in this second application by Carkulis, since he is barred from offering evidence pertaining to the materials sought in pretrial discovery, he may be entirely precluded from offering a defense. He must risk conviction in order to effect an appeal, and then risk the uncertainty of our decision on appeal. Without our intervention now, defendant has a Hobson's choice: Go back to the District Court, comply with the pretrial discovery, hope that the District Court will rescind its order barring the evidence and rely on a successful appeal; or, alternatively, stand pat, risk conviction, and the uncertainty of success on appeal. Moreover, the District Court order is binding not only on the defendant, but upon his counsel and their agents. They are also at risk for noncompliance through contempt proceedings against them.

Counsel for the State in prosecuting defendant is likely to have a dilemma here with respect to the law: There is a split of authority among neighboring states as to the legality of such pretrial discovery provisions. Unless we set the course in this case of first impression, there are no Montana guideposts for counsel advising their clients with respect to pretrial discovery in criminal cases.

Accordingly, we accept jurisdiction to determine if supervisory control is proper in this matter.

The District Court's Order

On December 20, 1985, the District Court entered its order for pretrial discovery which included the following provisions:

IT IS HEREBY ORDERED that the defendant, James Carkulis and his counsel or agents, make the following materials and information available to the State without delay for examination and reproduction, subject to constitutional or statutory limitations:

(1) the names and addresses of all persons, other than the defendant, whom he in good faith knows he will call as witnesses at trial, and copies of all statements made by them related to this case;

(2) the names and addresses of any expert witnesses whom he in good faith knows he will call at trial, and summaries of the testimony he expects the witnesses to give at trial;

(3) all papers, documents, photographs and other tangible objects which the defendant in good faith knows will be used as exhibits at trial; and

IT IS FURTHER ORDERED that the defendant shall promptly notify the State of the existence of any additional information or material referred to in the foregoing that is discovered by the defendant after this Order and make such information or material available for examination and reproduction without delay.

On April 9, 1987, the District Court, by a further order, supplemented the foregoing provisions by providing that if the defendant Carkulis did not disclose the materials set out above by May 1, 1987, he would "be precluded from offering same at trial."

Issues Raised By Defendant

The defendant maintains that the District Court's orders violate his rights secured by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Art. II, §§ 11, 17, 24 and 25 of the 1972 Montana Constitution.

The Applicable Statutes

The legislature adopted in 1985 several provisions relating to reciprocal pretrial discovery in criminal cases. Ch. 202, Laws of Montana (1985). The provisions relating to pretrial reciprocal discovery are now embodied in §§ 46-15-321 through 46-15-329, MCA. In general, these statutes contain applicable definitions (§ 46-15-321); requirements for disclosure by the prosecution (§ 46-15-322); requirements for disclosure by the accused (§ 46-15-323); materials not subject to disclosure (§ 46-15-324); a continuing duty to disclose (§ 46-15-327); a provision for excision or protective orders (§ 46-15-328); and provisions for sanctions in the case of noncompliance (§ 46-15-329).

The orders of the District Court in this case are based on provisions contained in § 46-15-323, MCA. The important subsections are:

(4) Simultaneously with the notice of defenses submitted under subsection (3), the defendant shall make available to the prosecutor for testing, examination, and reproduction:

(a) the names and addresses of all persons, other than the accused, whom he will call as witnesses at trial, together with all statements made by them in connection with a particular case; and

(b) the names and addresses of experts whom he will call at trial, together with the results of the physical examinations, scientific tests, experiments, or comparisons, including all written reports and statements made by them in connection to the particular case; and,

(c) a list of all papers, documents, photographs, and other tangible objects that he will use at trial.

(5) The defendants obligation under this section extends to material and information within the possession or control of the defendant or his attorneys or agents.

Disclosure of...