State v. Brown

• Decision Date: 14 June 1999
• Docket Number: No. 98-144.,98-144.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Wayne J. BROWN, Defendant and Appellant.
• Court: Montana Supreme Court

982 P.2d 468

1999 MT 133

STATE of Montana, Plaintiff and Respondent, v. Wayne J. BROWN, Defendant and Appellant.

No. 98-144.

Supreme Court of Montana.

Submitted on Briefs January 7, 1999.

Decided June 14, 1999.

Chad Wright, Appellate Defender Office, Helena, Montana, For Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana; Deborah Kim Christopher, Lake County Attorney, Polson, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 A jury in the District Court for the Twentieth Judicial District, Lake County, convicted Defendant Wayne J. Brown (Brown) of two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent. The District Court sentenced Brown to forty years in prison on each of the counts of sexual intercourse without consent and to forty years in prison with twenty years suspended for the count of attempted sexual intercourse without consent. Brown appeals his convictions. We affirm.

¶ 2 Brown raises one issue on appeal, which we restate as follows:

¶ 3 Did the District Court err when it denied Brown's motion to dismiss which was based on the State's alleged suppression of evidence?

Factual and Procedural Background

¶ 4 On September 15, 1995, the State charged Brown by Amended Information with two counts of sexual intercourse without consent and one count of attempted sexual intercourse without consent. The Amended Information alleged that Brown raped A.H. (who was his twelve-year-old stepdaughter)twice and attempted to rape her a third time in 1993 and 1994.

¶ 5 On September 7, 1995, Brown filed a list of potential witnesses which included A.H.'s mother, Lori Wessel (Wessel) and Wessel's address. On September 14, 1995, Brown appeared for trial but requested that the trial be postponed because Wessel refused to appear. As a result, the District Court rescheduled the trial and advised Brown "to advise the Court if he needs the Court to compel the witness to attend." ¶ 6 On May 24, 1996, Brown filed an amended list of witnesses which again included Wessel and her address. On May 30, 1996, prior to the commencement of the jury trial scheduled for that day, the State and Larry Nistler(Nistler), who was Brown's attorney at the time, met in chambers to settle preliminary matters. Nistler told the District Court that Brown had contacted Wessel and that Brown believed that Wessel would be at the trial.

¶ 7 Brown, however, did not appear for trial. Consequently, the Court revoked Brown's release on his own recognizance and issued an arrest warrant for Brown. On October 13, 1996, Brown was arrested. Trial was eventually rescheduled for May 8, 1997.

¶ 8 On March 3, 1997, Ben Anciaux (Anciaux), who was Brown's attorney at the time, and Lake County Attorney Robert Long (Long) interviewed A.H. by telephone. A.H. indicated during this interview that she knew how to contact Wessel. Anciaux asked A.H. for Wessel's telephone number. A.H., however, refused to give Wessel's telephone number to Anciaux. Notwithstanding, Anciaux continued to ask A.H. for Wessel's number. Consequently, Long told Anciaux to stop asking A.H. about how to contact Wessel. Long also told Anciaux that he would give Anciaux Wessel's telephone number after the interview. Long explained at the hearing on this matter that A.H. did not want to give Anciaux information concerning Wessel's whereabouts and that he told Anciaux to stop asking A.H. for that information because he thought that A.H. might hang up the telephone and, thus, end the interview.

¶ 9 Despite his pledge to give Anciaux Wessel's telephone number after the interview with A.H., Long did not give Anciaux Wessel's phone number and, on April 14, 1997, Long told Anciaux that he would not give Anciaux Wessel's telephone number. Consequently, on April 15, 1997, Brown filed a motion to compel the State to give him Wessel's address and telephone number. On April 22, 1997, the State filed a response to Brown's motion to compel wherein it stated that it would not call Wessel as a witness in its case-in-chief, stated that neither it nor A.H. had an address for Wessel, and gave Wessel's last known telephone number. However, on that same day, Long told Anciaux that Wessel was no longer at the telephone number which the State provided in its response to Brown's motion to compel. Long stated at the hearing on this matter that he did not include Wessel's number in the State's response to Brown's motion to compel because of Brown's motion to compel; instead, Long stated that he included Wessel's number because of Anciaux's first request for the number and that it was a coincidence that he gave Anciaux Wessel's number after Brown filed his motion to compel. On April 30, 1997, the Court granted Brown's Motion to Compel and told Brown that he may file a motion for sanctions.

¶ 10 On April 30, 1997, Brown filed a Motion for Sanctions against the State because of its failure to comply with the court's discovery orders. Brown asserted that the State violated §§ 46-15-322(1)(a) and (e), and 46-15-327, MCA, by not providing Wessel's current address or telephone number. Brown asserted that the State had "led [him] on" and that the State knew that Wessel was a material witness for the defense. Brown argued that the State violated his right to due process of law by withholding Wessel's telephone number. Brown asserted that he could not prepare or present a defense and, therefore, that the court should dismiss the charges against him or, alternatively, preclude the State from calling A.H. as a witness and the State from introducing her statements through other witnesses.

¶ 11 On May 12, 1997, the District Court held a hearing on Brown's motion to impose sanctions on the State. Brown's half-sister, Yvonne St. Dennis (St.Dennis), testified that she had been friends with Wessel for seven or eight years and that she knew A.H. St. Dennis also testified that Wessel told her that A.H. had accused three or four of Wessel's other boyfriends of molesting her and that A.H. had also alleged that she had been inappropriately touched by her stepbrother. In addition, St. Dennis testified that Wessel stated that she did not believe A.H.'s accusations and that A.H. had withdrawn her accusation against Brown. ¶ 12 On May 21, 1997, the District Court issued an Order which, in effect, denied Brown's motion for sanctions but stated that the court would favorably consider a six-month continuance so that Brown could locate Wessel. Brown subsequently moved the court for a continuance. On June 12, 1997, the District Court granted Brown's motion for a continuance and ordered that the trial be rescheduled no earlier than January 1, 1998. Thereafter, the District Court scheduled the trial for January 8, 1998.

¶ 13 On August 11, 1997, the District Court issued a Material Witness Warrant for Wessel. On January 7, 1998, Brown renewed his motion for sanctions and argued that, since the Material Witness Warrant had not been served upon Wessel, he could not defend himself and that the State violated his right to due process of law by not giving him information regarding Wessel's whereabouts. The District Court denied this motion.

¶ 14 Trial commenced on January 8, 1998. The jury found Brown guilty on each count charged. On January 21, 1998, the District Court sentenced Brown to forty years in prison on each of the counts of sexual intercourse without consent and to forty years in prison with twenty years suspended for the count of attempted sexual intercourse without consent. Brown appeals his convictions.

Standard of Review

¶ 15 The grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Sweet, 1998 MT 30, ¶ 18, 287 Mont. 336, ¶ 18, 954 P.2d 1133, ¶ 18 (citing State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195). Our review is plenary; we review the decision to determine whether the lower court's conclusion of law is correct. Sweet, ¶ 18 (citing Hansen, 273 Mont. at 323, 903 P.2d at 195).

Discussion

¶ 16 Did the District Court err when it denied Brown's motion to dismiss which was based on the State's alleged suppression of evidence?

¶ 17 Brown maintains that the State violated his state and federal constitutional rights to due process of law by impeding his investigation and efforts in preparing a defense. Brown first asserts that the State violated his right to due process of law by hindering and interfering with his access to and interview with A.H. The State, however, contends that this issue is not properly before this Court because Brown raised it for the first time on appeal.

¶ 18 In response, Brown concedes that his main argument in District Court was that the prosecution interfered with his attempts to contact Wessel. Nevertheless, Brown asserts that the record shows that the prosecutor also controlled the access to and the interview with A.H. Since he generally asserted in District Court that the prosecution hindered his ability to prepare a defense and since this Court's standard of review is plenary, Brown maintains on appeal that this Court should review all of the evidence which he presented to the District Court regarding whether the State violated his right to due process of law by hindering or interfering with his efforts to prepare a defense.

¶ 19 This Court will not address issues or theories raised for the first time on appeal. State v. Schaff, 1998 MT 104, ¶ 26, 288 Mont. 421, ¶ 26, 958 P.2d 682, ¶ 26 (citing §§ 46-20-104(2) and -701(2), MCA; and State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97). See also State v. Robbins, 1998 MT 297, ¶ 56, 292 Mont. 23, 971 P.2d 359 ¶ 56, 55 St. Rep. 1213, ¶ 56 (citing State v. Huerta (1997), 285 Mont. 245, 260, 947 P.2d 483, 492) (stating that "[c]laims that constitutional rights have been violated cannot, in the absence of plain error, be raised for the first time...