State v. Sullivan, 96-584

• Decision Date: 29 October 1997
• Docket Number: No. 96-584,96-584
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas SULLIVAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 215

948 P.2d 215

285 Mont. 235

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

No. 96-584.

Supreme Court of Montana.

Submitted on Briefs June 12, 1997.

Decided Oct. 29, 1997.

[285 Mont. 237] David F. Ness, Missoula, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, Michael S. Wellenstein, Ass't Attorney General, Helena, Julie Macek, Chief Deputy Cascade County Attorney, Great Falls, for Plaintiff and Respondent.

GRAY, Justice.

Thomas Sullivan (Sullivan) appeals from an order of the Eighth Judicial District Court, Cascade County, dismissing his petition for postconviction relief for failure to state a claim upon which relief could be granted. We affirm.

Sullivan raises the following issues on appeal:

1. Did the District Court err in concluding that Sullivan's rights under Brady v. Maryland were not violated?

2. Did the District Court abuse its discretion in determining that Sullivan is not entitled to a new trial based on newly discovered evidence?

3. Is Sullivan entitled to a new trial as a matter of due process, pursuant to State v. Perry, based on newly discovered evidence?

BACKGROUND

Sullivan worked for the City of Great Falls (City) Parks and Recreation Department (Department) in various capacities beginning in 1963 and became director of the Department in 1975. In 1991, the State of Montana (State) charged him with five counts of felony theft: theft of swimming pool locker money between January of 1988 and August of 1991; theft of golf course driving range money between January of 1988 and August of 1991; theft of golf course storage fees between June of 1989 and July of 1991; theft of golf lesson money between January of 1988 and August of 1991; and theft of golf course membership fees between January of 1990 and August of 1991. The State also charged Sullivan with one count of tampering with public records or information by accountability (tampering), alleged to have occurred between October of 1987 and January of 1990. The tampering charge involved Sullivan instructing his secretary to change the total number of golf memberships in the year-end golf report (golf report) to match the amount of membership fees deposited for that year. Finally, the State charged Sullivan with one count of official misconduct.

Prior to trial, the District Court dismissed the theft charge involving swimming pool locker money. At trial, Sullivan denied having committed the remaining charges and attempted to establish that financial mismanagement by the City and the Department, rather than theft, accounted for the missing monies. According to Sullivan, the missing monies were simply misposted or lost. The jury convicted Sullivan of three counts of felony theft, including theft of golf course membership fees, and tampering. It acquitted him of the remaining theft charge and official misconduct. Judgment was entered in June of 1992 and Sullivan appealed. We affirmed the convictions, reversed certain aspects of the fine imposed and remanded for clarification. State v. Sullivan (1994), 266 Mont. 313, 880 P.2d 829.

On December 27, 1993, the new director of the Department discovered an envelope containing $1,300 in cash and checks dated March 4, 1987, in a budget file. The cash and checks were payments for golf course memberships. Neither the City nor the State notified Sullivan or his attorney that the undeposited cash and checks had been discovered. When Sullivan's attorney learned of the discovery in July of 1994, Sullivan filed a petition for postconviction relief asserting that his constitutional rights had been violated and that the newly discovered evidence entitled him to a new trial or an evidentiary hearing. The District Court dismissed the petition and Sullivan appeals.

STANDARD OF REVIEW

In such recent cases as State v. Sheppard (1995), 270 Mont. 122, 127, 890 P.2d 754, 757 (citing State v. Barrack (1994), 267 Mont. 154, 159, 882 P.2d 1028, 1031), we stated the standard of review of a denial of a petition for postconviction relief as whether"substantial evidence supports the findings and conclusions of the district court." We implicitly clarified that standard, however, in Kills on Top v. State (1996), 279 Mont.384, 390, 928 P.2d 182, 186, a postconviction relief proceeding where we reviewed findings of fact, conclusions of law and discretionary rulings. There, we stated that we would review a district court's findings of fact in a postconviction relief proceeding--as we review most other findings by trial courts--to determine whether the findings are clearly erroneous. See Kills on Top, 928 P.2d at 186 (citation omitted). We review conclusions of law to determine whether they are correct. Kills on Top, 928 P.2d at 186(citation omitted). Discretionary rulings in postconviction relief proceedings, including rulings on requests for a new trial, are reviewed for abuse of discretion. See Kills on Top, 928 P.2d at 186 (citations omitted).

1. Did the District Court err in concluding that Sullivan's Brady rights were not violated?

Sullivan argues that the State's failure to disclose the undeposited cash and checks, collected for golf course memberships in 1987 and discovered in 1993, violated his constitutional rights under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. On that basis, he contends that the District Court erred in concluding that no Brady violation occurred.

In Brady, the United States Supreme Court stated that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. The Supreme Court recently deleted the Brady requirement of a request from the defendant for exculpatory or impeachment evidence. Kyles v. Whitley (1995), 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505. Basically, a Brady due process violation has three elements: 1) The prosecution's failure to disclose 2) exculpatory or impeachment evidence 3) material to either guilt or punishment. Kennedy v. Herring (11th Cir.1995), 54 F.3d 678, 682 (citing Nelson v. Nagle (11th Cir.1993), 995 F.2d 1549, 1555). Generally, Brady applies only to evidence in the prosecution's possession or within its knowledge. United States v. Morris (7th Cir.1996), 80 F.3d 1151, 1169; United States v. Jones (8th Cir.1994), 34 F.3d 596, 599.

Here, the cash and checks at issue were not discovered until December 27, 1993, more than one and one-half years after the completion of Sullivan's trial. They were not within the knowledge or possession of the State before or during Sullivan's trial and, as a result, they do not constitute evidence which the State could have produced and which it suppressed or failed to disclose to Sullivan. As a result, we need not address the primary thrust of Sullivan's Brady argument, which is whether the undeposited cash and checks were material to either guilt or punishment under Brady and its progeny. We hold that the District Court correctly concluded that Sullivan's due process Brady rights were not violated.

We observe that, in discussing the Brady issue, Sullivan makes a passing reference to a separate allegation in his postconviction petition, made on information and belief, that other undeposited golf course membership cash and checks were discovered prior to his trial and not disclosed to him by the State. The District Court noted that Sullivan provided no evidence of any type in support of this allegation and did not address it further. Sullivan contends that the District Court erred in dismissing his petition without providing him the opportunity to either conduct discovery on the allegation of a pretrial discovery of undeposited cash and checks or have an evidentiary hearing for further investigation.

Section 46-21-104(1)(c), MCA (1993), requires a postconviction petitioner to attach affidavits, records or other evidence to the petition which support the allegations contained in the petition or state why such evidence is not attached. Here, Sullivan did not attach an affidavit or other evidence substantiating his allegation, on information and belief, of a pretrial discovery of undeposited cash and checks. Nor did he explain in either the District Court or this Court why such evidence was not produced. He states in his brief on appeal that he obtained the information alleged on information and belief from former employees of the City. Assuming arguendo that his statement is true, Sullivan could have obtained affidavits in support of his allegation of a pretrial discovery of undeposited cash and checks and attached that evidence to his petition as § 46-21-104(1)(c), MCA (1993), requires. He did not do so.

We conclude that Sullivan's unsupported allegation, made on information and belief, did not establish good cause for permission to conduct discovery as required by § 46-21-201(3), MCA (1993). Nor was it sufficient to entitle him to an evidentiaryhearing under u 46-21-201(1), MCA (1993). We hold, therefore, that the District Court did not abuse its discretion in these regards.

2. Did the District Court abuse its discretion in determining that Sullivan is not entitled to a new trial based on newly discovered evidence?

Sullivan contends that the undeposited cash and checks discovered after his trial relate to both the theft of golf course membership fees charge and the tampering charge, and also asserts that the undeposited cash and checks provide additional evidence of financial mismanagement by the City and the Department. As a result, he argues that he is entitled to a new trial based on newly discovered evidence under the so-called Greeno factors and that the District Court erred in concluding otherwise.

We recently restated the factors which apply when a district court evaluates amotion for a...