State v. Strang

• Decision Date: 05 September 2017
• Docket Number: DA 15-0290.
• Citation: 388 Mont. 428,2017 MT 217,401 P.3d 690
• Parties: STATE of Montana, Plaintiff and Appellee, v. Daryl E. STRANG, Defendant and Appellant.
• Court: Montana Supreme Court

388 Mont. 428

401 P.3d 690

2017 MT 217

STATE of Montana, Plaintiff and Appellee,

v.Daryl E. STRANG, Defendant and Appellant.

DA 15-0290.

Supreme Court of Montana.

Submitted on Briefs: July 26, 2017

Decided: September 5, 2017

For Appellant: Chad M. Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Marcia Boris, Mineral County Attorney, Superior, Montana.

Justice Beth Baker delivered the Opinion of the Court.

¶ 1 The State charged Daryl Strang with Abuse or Exploitation of an Older Person for allegedly exploiting 83-year-old Ben Poat financially and for failing to care for him.

Before the case went to trial, Poat was appointed a guardian and a conservator. The conservator secured rulings in a separate case divesting Strang of assets Poat had conveyed to him. The jury found Strang guilty of the charges. The District Court denied Strang's request for a new trial and sentenced him to prison. Strang appeals the court's admission of certain evidence at trial and its refusal to order a new trial for juror misconduct. He argues for the first time on appeal that the presiding judge should have been disqualified because the judge entered orders against Strang's interests in the guardianship and conservatorship case. We affirm.

¶ 2 We restate the issues as follows:

1. Whether Strang is entitled to a hearing on his request to disqualify the trial judge;

2. Whether the District Court abused its discretion when it allowed the State to present certain documents and witness testimony that the prosecutor disclosed shortly before trial;

3. Whether the District Court abused its discretion when it determined that juror misconduct did not warrant a new trial.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 Strang met Ben Poat in 2007. Poat was in his late seventies, was unmarried, had no children, and lived alone. Strang began helping Poat with odd jobs around Poat's house, and over time he began assisting Poat with his finances. Poat gave Strang a durable power of attorney in 2012 and a specific power of attorney over Poat's bank account in 2013. Poat also made Strang the primary beneficiary of his will and transferred property to Strang, including vehicles and real property. Approximately thirty-five checks were issued to Strang from Poat's bank account, totaling over $142,000.

¶ 4 In September 2013, Rena Ayers—a social worker with the Adult Protective Services Division of the Department of Public Health and Human Services—met with Poat at his home in response to a complaint from Poat's sister. Ayers noted, among other things, that Poat had untreated melanomas

, that he had trouble remembering facts such as his own birthdate and his siblings' names, and that the only food in the house was peanut butter and milk. Due in part to Ayers's concerns about Poat's inability to care for himself and his susceptibility to exploitation, Adult Protective Services initiated guardianship and conservatorship proceedings in September 2013. Poat subsequently was diagnosed with dementia.

¶ 5 The guardianship and conservatorship proceedings took place in the Fourth Judicial District Court, with Judge John Larson presiding.¹ Although the case register for those proceedings lists only Judge Larson as the presiding judge, Judge Ed McLean also participated in the case. Judge McLean issued an order in November 2013 that invalidated Poat's 2012 will naming Strang as the beneficiary, invalidated Poat's power of attorney to Strang, and required the return of certain property that had been transferred from Poat to Strang.

¶ 6 The State charged Strang in May 2014 with Abuse or Exploitation of an Older Person, in violation of § 52-3-825, MCA. The State contended that Strang took financial advantage of Poat and that he failed to take reasonable steps to maintain Poat's health. Judge McLean presided over the case. The State's Affidavit and Motion for Leave to File Information stated that Judge McLean had appointed a guardian and a conservator for Poat and that the court had issued an order invalidating Poat's will and power of attorney to Strang and ordering the return of some of Poat's property from Strang. Strang did not object to Judge McLean presiding over the criminal case or request his disqualification.

¶ 7 A jury trial began on January 12, 2015. Poat died in August 2014, before the start of trial. Ten days before trial, on January 2, the State disclosed two new potential witnesses, Michelle Parkin and Lori Dove. The witnesses were employees of First American Title Company, and they were present when Strang inquired at that company about executing a quitclaim deed to transfer some of Poat's property to him. The witnesses allegedly heard Strang claim falsely that Poat had "no living relatives."

¶ 8 On January 9, 2015, three days before trial, the State received documents from Wells Fargo in response to a December 2014 subpoena relating to Poat's bank account. The documents included copies of canceled checks made out to Strang. The State transmitted these records to the defense within hours after it received them.

¶ 9 Strang filed a motion in limine and request for sanctions in which he asked the court to exclude Parkin and Dove from testifying and to prohibit the State from using the newly-produced bank records. The court denied the motion and allowed the State to introduce the bank records and to call Parkin as a witness.² The court reasoned that the State had fulfilled its duty to promptly disclose all evidence and witnesses to the defense as soon as it was able. At the close of trial, the jury found Strang guilty of purposely or knowingly abusing or neglecting Poat and of exploitation of an older person.

¶ 10 Strang moved for a new trial. He argued that the court wrongfully allowed the State to call Parkin as a witness and to introduce the Wells Fargo bank records. He asserted further that he was deprived of a fair trial due to juror misconduct. He alleged that one juror was present with her husband in a restaurant when the husband made a statement suggesting that he believed Strang to be guilty. Strang alleged further that another juror improperly commented on Strang's guilt to the Bailiff during trial and that the Bailiff expressed his agreement with the juror.

¶ 11 The District Court denied Strang's motion for a new trial. It reasoned that the State had acted reasonably with regard to its late disclosures of witnesses and evidence and that Strang had failed to demonstrate prejudice from either the late disclosures or the alleged juror misconduct. The court sentenced Strang to a total of twenty years in prison with ten years suspended.

¶ 12 Strang appeals.

STANDARDS OF REVIEW

¶ 13 We review judicial disqualification questions de novo. Draggin' Y Cattle Co. v. Junkermier , 2017 MT 125, ¶ 10, 387 Mont. 430, 395 P.3d 497 (hereafter, Draggin' Y III ). Our inquiry requires an objective examination of the circumstances surrounding potential judicial disqualification and an accurate interpretation of the Montana Code of Judicial Conduct. Draggin' Y III , ¶ 10.

¶ 14 A district court has broad discretion in determining whether evidence is relevant and admissible. State v. Lozon , 2012 MT 303, ¶ 9, 367 Mont. 424, 291 P.3d 1135. We will not disturb a district court's determination on the admissibility of evidence absent an abuse of discretion. Lozon , ¶ 9. Abuse of discretion occurs if a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Lozon , ¶ 9.

¶ 15 This Court reviews motions for new trial based on juror misconduct for abuse of discretion. A district court will not be overturned unless a defendant demonstrates that he was deprived of a fair and impartial trial. State v. MacGregor , 2013 MT 297, ¶ 15, 372 Mont. 142, 311 P.3d 428.

DISCUSSION

¶ 16 1. Whether Strang is entitled to a hearing on his request to disqualify the trial judge.

¶ 17 Strang argues for the first time on appeal that Judge McLean should have recused himself from this case because he ruled on matters in Poat's guardianship and conservatorship proceedings. Strang claims that the same issues were dispositive of Strang's guilt in the criminal case. He asserts that Judge McLean "had personal knowledge of the facts in dispute, had expressed bias against [Strang], and presided as a judge in Poat's guardianship proceedings which involved a matter that went to the heart of the State's case against [Strang]." He argues that his disqualification claim is not untimely because it is based on Judge McLean's bias or prejudice and because Strang was unaware of Judge McLean's involvement in the prior proceedings until after Strang's criminal proceedings concluded. Strang urges this Court to remand for a disqualification hearing.

¶ 18 We generally do not address issues raised for the first time on appeal. Draggin' Y III , ¶ 15. We may consider such issues, however, if they "affect[ ] the substantial rights of a litigant" or if "extenuating circumstances justify the party's failure to assert [its] legal theory at trial." Draggin' Y II , ¶ 15 (citations and internal quotations omitted).

"A claim for disqualification of a judge must be brought within a reasonable time after the moving party learns the facts forming the basis for a claim that the judge should be disqualified." State v. Dunsmore , 2015 MT 108, ¶ 20, 378 Mont. 514, 347 P.3d 1220. If it is not brought within a reasonable time, the claim is waived. Draggin' Y II , ¶ 19.

¶ 19 The State's Affidavit and Motion for Leave to File Information, which it filed in May 2014, stated, "The Honorable Ed P. McLean, Montana Fourth Judicial District Judge, appointed a guardian and a conservator for [Poat] on October 21, 2013." It stated further, "The Court entered an order invalidating [Poat's 2012] will, ordering the return of [Poat's] personal property,...