State v. Sullivan

• Decision Date: 12 September 1994
• Docket Number: No. 92-552,92-552
• Citation: 266 Mont. 313,880 P.2d 829,51 St.Rep. 827
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas Neil SULLIVAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 829

880 P.2d 829

266 Mont. 313

STATE of Montana, Plaintiff and Respondent, v. Thomas Neil SULLIVAN, Defendant and Appellant.

No. 92-552.

Supreme Court of Montana.

Submitted on Briefs April 21, 1994.

Decided Sept. 12, 1994.

Turner C. Graybill and George Robert Crotty, Jr., Graybill, Ostrem & Crotty, Great Falls, for appellant.

Joseph P. Mazurek, Atty. Gen., Michael S. Wellenstein, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Great Falls, for respondent.

HUNT, Justice.

Defendant Thomas Neil Sullivan appeals from a verdict of the Eighth Judicial District, Cascade County, finding him guilty of three counts of felony theft, one count of felony accountability for tampering with public records, and a judgment requiring him to pay a fine to a charity from vacation and sick pay.

We affirm in part, reverse in part, and remand to the District Court for further proceedings.

We state the issues as follows:

1. Did the District Court err in failing to hold an omnibus hearing at least 30 days prior to trial pursuant to § 46-13-110, MCA, thereby prejudicing defendant?

2. Did prejudicial media publicity, and the District Court's refusal to grant challenges for cause, preclude a fair trial for defendant?

3. Did the District Court err by limiting the testimony of Sue Duarte, excluding the testimony of Richard Duarte, and failing to grant defendant's motion for a mistrial?

4. Did the District Court err in refusing to dismiss or reverse Counts I, III, IV, and V of the information on the grounds of insufficiency of evidence?

5. Did the District Court err in fining defendant his vacation pay and sick leave pay and ordering distribution of these funds to United Way of Cascade County?

Tom Sullivan was employed by the City of Great Falls from 1963 until August 29, 1991. He became director of the City's Recreation Department in 1965 and directed the City's consolidated "Park and Recreation Department" (the Department) from 1975 until August 29, 1991.

On August 29, 1991, Sullivan met with Great Falls Police Chief Robert Jones, Lieutenant Dave Warrington, and Detective Tim Shanks at the police station at their request. At the meeting, Chief Jones confronted Sullivan about allegations that large sums of money were missing from the department. Chief Jones asked Sullivan whether he had been taking golf course driving range money, winter golf lesson money, and golf course membership money for personal use. Sullivan told him that the money was used for Department projects, not his personal use. Sullivan asked to speak with City Manager John Lawton, who came to the police station after Chief Jones called him.

During this meeting, Mr. Lawton stated that he viewed the matter very seriously and that he was contemplating terminating Sullivan, suspending him with pay pending an investigation, or suspending him without pay pending an investigation. The next day, August 30, 1991, Sullivan resigned. Following his resignation and throughout the trial the Sullivan case received widespread local news coverage.

On November 15, 1991, the State charged Sullivan by information with five counts of felony theft, in violation of § 45-6-301(1)(b), MCA; tampering with public records or information by accountability, a felony, in violation of § 45-2-302(1) and § 45-7-208, MCA; and official misconduct, a misdemeanor, in violation of § 45-7-401, MCA.

On March 31, 1992, Sullivan filed a motion requesting the court to set a date for a preliminary pretrial conference. On April 6, 1992, Sullivan filed a motion to dismiss Counts I, II, III, IV, and VII of the information. Sullivan also filed a motion for individualized, sequestered voir dire, and various motions in limine. Three days prior to trial, on April 17, 1992, the court held an omnibus hearing. The court granted Sullivan's motion to depose Richard Duarte, and his motion for individualized, sequestered voir dire. The court dismissed one felony theft charge concerning swimming pool locker money and ordered Sullivan to stand trial on the following renumbered counts:

I: felony theft of city driving range money;

II: felony theft of golf club storage fees belonging to Connie Crammer;

III: felony theft of golf lesson money belonging to Bill Dunn or Connie Crammer;

IV: felony theft of golf course membership money;

V: felony accountability for tampering with public records by causing his secretary "to knowingly make false entries or false alterations of golf membership records"; and

VI: a misdemeanor count for "official misconduct" in "ordering his employees to provide funds for the 1991 Icebreaker Run from other budgets outside of the established budget for the Run."

On April 29, 1992, the jury found Sullivan guilty of three counts of theft and one count of tampering with public records by accountability. The jury found Sullivan not guilty of one count of theft and the charge of official misconduct. On May 11, 1992, Sullivan filed a motion to correct the verdict and a motion for a new trial. The court denied both motions. The court sentenced Sullivan to serve four 10-year concurrent sentences in the Montana State Prison with all but 30 days of the time suspended. As a condition of his suspended sentences, the court ordered Sullivan to pay $5644.68 in costs and restitution payable in the amount of $300 per month to the City of Great Falls for ten years starting from June 26, 1992. The court also sentenced Sullivan to be fined $7089.30 of his vacation pay and $8699.63 of his sick leave to be paid to the Great Falls United Way. In addition, Sullivan was sentenced to 2000 hours of community service with the Great Falls Salvation Army.

ISSUE 1

Did the District Court err in failing to hold an omnibus hearing at least 30 days prior to trial pursuant to § 46-13-110, MCA, thereby prejudicing defendant?

Our standard of review relating to conclusions of law is whether the trial judge's interpretation of the law is correct. Steer, Inc. v. Dep't of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Defendant argues that the District Court's violation of § 46-13-110, MCA, constitutes reversible error. Defendant asserts that holding the omnibus hearing 30 days prior to trial would have ensured timely consideration of pretrial motions and issues and would have avoided confusion and error.

Section 46-13-110, MCA, provides in part:

(1) Within a reasonable time following the entry of a not guilty plea but not less than 30 days before trial, the court shall hold an omnibus hearing.

(2) The purpose of this hearing is to expedite the procedures leading up to the trial of the defendant.

On January 16, 1992, Judge Sherlock, defendant, and the State held a telephonic scheduling conference in which the parties agreed to a trial date, a date to file pretrial motions, and an omnibus hearing scheduled for April 17, 1992. The record shows that prior to the omnibus hearing the court received, read, and understood the issues presented by the parties. The court heard arguments from both sides and addressed the issues raised in each motion at the omnibus hearing.

Defendant argues that three issues in particular were compromised by holding the omnibus hearing three days prior to trial.

First, defendant contends that discovery of documents previously requested from the City was not yet complete. The record shows that the court held a telephonic discovery conference on April 7, 1992, at which time the court ordered the State to provide discovery material to defendant. The court ordered the City to provide defendant access to its files. The State complied with the order with the exception of two items. The State produced these items after the court addressed the issue at the omnibus hearing.

Second, defendant notes that the court granted his motion for individualized, sequestered voir dire, but subsequently modified the ruling to the great prejudice of defendant. The motion for a sequestered voir dire was granted at the omnibus hearing. There is nothing in the record to show how defendant was prejudiced by granting this motion. Likewise, there is nothing in the record to show that the subsequent modification of this ruling was the result of holding the omnibus hearing three days before trial, rather than thirty days.

Third, defendant contends that the deposition of Richard Duarte, authorized at the omnibus hearing, was not completed until April 20, 1992, and that the deposition of Michael Clark (Richard Duarte's stepson) was denied. Defendant filed the motion to compel the deposition of Richard Duarte and Michael Clark on April 15, 1992. The court ruled on that motion two days later at the omnibus hearing. We do not see the prejudice created by the court's timely ruling on that motion.

"The purpose of the [omnibus] hearing is to expedite the procedures leading up to the trial of the defendant." Section 46-13-110, MCA. It is clear from the record that all pretrial motions were raised, argued, considered, and disposed of by the court at the omnibus hearing. There is nothing in the record to demonstrate that defendant was prejudiced by the court's disposition of those pretrial matters.

We hold that the District Court did not err in failing to hold an omnibus hearing at least 30 days prior to trial.

ISSUE 2

Did prejudicial media publicity and the District Court's refusal to grant challenges for cause preclude a fair trial for defendant?

Defendant maintains that his efforts to avoid prejudice from the publicity surrounding the case were deterred by the District Court's failure to take the necessary precautions to assure a fair trial and unbiased jury. Defendant asserts that continuous and massive publicity conditioned jurors to assume defendant's guilt. In support of this assertion, the appendix to defendant's opening brief contains 36 news articles published before and during the trial.

In cases where defendants have moved for a change of venue due to prejudicial, media publicity ...