State v. Gleed
| Decision Date | 10 June 2014 |
| Docket Number | No. DA 13–0116.,DA 13–0116. |
| Citation | 326 P.3d 1095,375 Mont. 286 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Christopher Lee GLEED, Defendant and Appellant. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
For Appellant: Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena, Montana.
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Melissa Broch, Deputy County Attorney, Helena, Montana.
¶ 1 Christopher Gleed appeals from a judgment of the First Judicial District Court, Lewis and Clark County, based on his conviction of aggravated assault of his young son, G.C. We reverse and remand for a new trial. We restate the sole dispositive issue on appeal as follows:
¶ 2 Did the District Court abuse its discretion when it denied Gleed's motion for continuance?
¶ 3 In August 2012, the State charged Gleed with aggravated assault, alleging that Gleed intentionally submerged G.C. in scaldingwater after G.C. came to the emergency room with severe burns over the majority of his body. On August 23, 2012, Gleed was arraigned and pleaded not guilty. The District Court discussed with the parties the setting of a trial date. The State expressed it had several out-of-state expert witnesses and requested a first trial setting in February, which was still within 200 days of Gleed's arrest. Defense counsel objected to such a late date. Although the State expressed concern about setting a trial date in mid-December, the District Court set a trial date of December 17, 2012, and suggested that if scheduling problems developed the parties could advise the District Court within a couple of weeks.
¶ 4 In November 2012, Gleed filed a notice of expert disclosure and an expert report of San Francisco-based burn expert Dr. Jerold Z. Kaplan. In his expert report, Dr. Kaplan concluded that G.C.'s burns were not caused by intentional child abuse, stating “I am personally certain that this is an accidental injury, and would be happy to so testify in deposition, or court, if necessary.” At the end of his report, Dr. Kaplan stated, “I will be on vacation [in New Zealand] from Nov 16 through Dec 20, but may be paged until Nov 15 and e-mailed at any time.” Later that month, Gleed disclosed a witness and exhibit list to the State, which included Dr. Kaplan. The State's witness list identified 22 witnesses.
¶ 5 Trial began on Monday, December 17. During voir dire, defense counsel, the State, and the District Court all repeatedly told jurors that the case could last until Friday, December 21. The District Court advised the jury panel during voir dire:
we are anticipating—I talked with the lawyers about how long this case is going to last. Everybody wants to know that. And we're—they're telling me it could last three days or could last all week. And I know that is an issue as well.
Later during voir dire, the District Court advised:
So—and the final thing, ... is that we've anticipated the trial will be over—we have wild estimates here—from Wednesday, possibly, to maybe Friday. I always think it's best in a case like that to err on the conservative side so you're not disappointed and say Friday. And I'm anticipating it will be sooner. And I'll keep you posted.
The State similarly advised the panel during voir dire that:
So as far as the length of this trial, my best estimate, and I'm often times wrong, but my best estimate is this is going to go to the jury probably on Thursday. It may go to Friday, but my best estimate is that this case may end as soon as Wednesday. I don't know. But I'm betting it's going to—you are going to get it Thursday. It might go to Friday.
¶ 6 In his opening statement, defense counsel told the jury that they would have a burn expert, Dr. Kaplan, who would explain the relationship between water temperature and the time it takes to burn skin. Defense counsel represented that Dr. Kaplan would corroborate that G.C.'s burns were accidental. Defense counsel, however, was not clear in what manner Dr. Kaplan's testimony would be presented to the jury and stated,
¶ 7 During its case-in-chief, the State presented expert testimony from a pediatrician specializing in child abuse, who stated that the burns were indicative of forced submersion in scalding water, and thus were more likely the result of child abuse. The State rested ahead of schedule on Tuesday, December 18. Defense counsel thereupon advised the court, The State objected and the following colloquy transpired:
County Attorney: Your Honor, I object to that. We've known—this trial has been set for a long, long time, and why—we've known when the expected trial date was going to end. Why we should put this off and keep the jury hanging, and the Court's time, is something I don't understand.
Court: Okay. Can we do it by video?
County Attorney: I don't care if we do it by video.
¶ 8 Late in the morning of Wednesday, December 19, after all other defense witnesses had been called, defense counsel moved the court to recess for a day and a half until Dr. Kaplan would be available to testify. Defense counsel advised, The court responded,
¶ 9 There is no further discussion or explanation of the matter in the record. At 2:05 p.m. on December 19, the jury was dismissed to deliberate, and they found Gleed guilty of aggravated assault. Gleed was sentenced to 20 years in Montana State Prison. Although Gleed raises multiple issues on appeal, we will only address the issue regarding the motion for continuance.
¶ 10 We review a district court's ruling on a motion for continuance for an abuse of discretion. State v. Toulouse, 2005 MT 166, ¶ 14, 327 Mont. 467, 115 P.3d 197 (citing State v. Garcia, 2003 MT 211, ¶ 10, 317 Mont. 73, 75 P.3d 313). A trial court abuses its discretion when it “ ‘acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.’ ” State v. Hicks, 2013 MT 50, ¶ 14, 369 Mont. 165, 296 P.3d 1149 (quoting State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811).
¶ 11 A district court considers a motion for continuance in a criminal trial in light of the diligence shown by the moving party, and may grant the continuance in its discretion, if the interests of justice so require. Section 46–13–202, MCA; Garcia ¶ 14; State v. Fields, 2002 MT 84, ¶ 20, 309 Mont. 300, 46 P.3d 612. “When a continuance is requested and is reasonable, viewing all the relevant factors including the interests of justice and the defendant's right to a fair trial, a district court abuses its discretion in denying the request.” Fields, ¶ 20 (citing State v. Borchert, 281 Mont. 320, 327, 934 P.2d 170, 175). In State v. Fife, 187 Mont. 65, 69, 608 P.2d 1069, 1071–72 (1980) (citing State v. DiGiallonardo, 160 Mont. 379, 382–84, 503 P.2d 43, 44 (1972)), we articulated the three factors to consider in determining whether a district court has abused its discretion in ruling on a motion for continuance based on an absent witness: (1) whether a reasonable expectation or prospect of obtaining the presence of the absent witness exists; (2) whether the witness's testimony would help the defense; and (3) whether that witness would testify. Establishing whether a district court abused its discretion in denying a motion for continuance depends not on the application of a mechanical test but rather on “ the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” State v. Klemann, 194 Mont. 117, 120–21, 634 P.2d 632, 635 (1981) (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d 921 (1964)).
¶ 12 As a preliminary matter, the civil statute governing a motion for continuance requires the moving party to include an accompanying affidavit that shows the materiality of the evidence expected to be obtained and that due diligence has been used to procure it. Section 25–4–501, MCA. In contrast, the criminal statute governing a motion for continuance states that “the court may require that [a motion for continuance] be supported by affidavit.” Section 46–13–202(1), MCA (emphasis added). The State cites Toulouse to stand for the proposition that a motion for continuance in a criminal case requires a supporting affidavit showing the materiality of the evidence expected to be obtained and that due diligence has been used to procure it pursuant to § 25–4–501, MCA. The State continues that because Gleed failed to present an affidavit demonstrating the materiality of Dr. Kaplan's testimony and his diligence in procuring it, the District Court did not abuse its discretion by denying his motion for continuance. However, § 25–4–501, MCA, does not govern criminal proceedings, and Toulouse merely refers...
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State v. Webber, DA 17-0720
...reviews a district court’s ruling on a motion for continuance for an abuse of discretion. State v. Gleed , 2014 MT 151, ¶ 10, 375 Mont. 286, 326 P.3d 1095 (citing State v. Toulouse , 2005 MT 166, ¶ 14, 327 Mont. 467, 115 P.3d 197 ). A district court abuses its discretion if it acts arbitrar......
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City of Bozeman v. King, DA 15–0534
...King challenges this decision, it was nonetheless within the Municipal Court's discretion. State v. Gleed , 2014 MT 151, ¶ 10, 375 Mont. 286, 326 P.3d 1095. The court heard the arguments presented by the parties and the rationale for a continuance. Consequently, the Municipal Court was in a......