                                          No. 01-908

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 76



STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

LENORSE SLAVIN,

              Defendant and Appellant.




APPEAL FROM:         District Court of the Eighteenth Judicial District,
                     In and For the County of Gallatin, Cause No. DC 01-68 & DC 01-26,
                     Honorable Mike Salvagni, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Kristina Guest, Appellate Defender’s Office, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; John Paulson, Assistant
                     Attorney General, Helena, Montana

                     Martin D. Lambert, County Attorney; Ashley Harrington, Deputy
                     County Attorney, Bozeman, Montana



                                                  Submitted on Briefs: February 27, 2003

                                                             Decided: March 30, 2004

Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Lenorse Slavin (Slavin) was charged by Information with kidnaping, a felony, in

violation of § 45-5-302, MCA, and assault with a weapon, a felony, in violation of § 45-4-

213(1)(b), MCA. A jury in the Eighteenth Judicial District Court, Gallatin County, found

Slavin guilty of kidnaping and the lessor offense of misdemeanor assault, and he appeals

from the judgment entered therein. We affirm.

¶2     Slavin presents the following issues on appeal:

¶3     1. Whether the District Court properly quashed the defendant’s subpoenas for the

newspaper reporter and editor to appear and testify at trial.

¶4     2. Whether the District Court abused its discretion in limiting the testimony of the

defendant’s expert witness.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶5     Slavin was a caregiver for Marion Merryfield (Merryfield). Merryfield suffers from

several medical conditions, including Alpha 1 Antitrypsin Deficiency, which is a lung

condition, and Left and Right Complex Temporal Lobe Epilepsy, also commonly known as

complex seizures. During a seizure, Merryfield can appear awake, conscious, and under

control, but not be aware of what is going on around her. She may also run, flail and injure

herself, and may also be aggressive if restrained. Merryfield’s condition requires her to be

on oxygen and various medications, including Prednisone, which can cause Merryfield to act

irrationally.




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¶6     Due to her condition, Merryfield usually employs a caregiver. In October of 1999,

Merryfield employed Slavin as her live-in caregiver. Thereafter, an intimate relationship

developed between them.

¶7     On the night of January 18, 2001, Merryfield and Slavin were drinking at Merryfield’s

residence. Sometime after midnight, Merryfield called police and reported that Slavin had

thrown her against a bookcase. When Gallatin County Deputy Sheriff Paul Lewis (Lewis)

arrived, he questioned Slavin about the reported incident and also about a 9mm gun that

Slavin owned. Slavin showed Lewis the gun, which was located in a case under the foot of

Slavin’s bed. Lewis permitted Slavin to keep the gun. Lewis testified that, after speaking

with Merryfield and Slavin, he could not “articulate that a crime had occurred at the

residence,” so he decided to give Slavin a ride to a local motel in order to separate the

parties. In so doing, Lewis told Slavin not to return to the house until everybody was sober

and calm.

¶8     After Lewis left him at the motel, Slavin called Merryfield and told her to come and

get him, but Merryfield reported Slavin’s call to police. Lewis then called Slavin. Slavin

informed Lewis that Slavin had asked a friend to take him to the friend’s home. Lewis

replied that was fine, but advised Slavin not to return home. However, a few hours later,

Slavin did so, and upon his arrival at Merryfield’s home, he retrieved his gun, threw the gun

case at Merryfield’s feet, chambered a bullet in the gun, told Merryfield he was going to kill

her, and confined her to the house. While Slavin was using the bathroom, Merryfield tried

to get away, but Slavin caught her outside and drug her by the hair back into the home and


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into the bedroom, where he again threatened her with the gun. Slavin kept the gun on her

for approximately four hours but eventually he fell asleep on the floor near the front of

Merryfield’s bed. Merryfield testified that if she had wanted to leave the room she “would

have had to have gone around him to get to the door to get out.”

¶9     The following day Merryfield went to the hospital to attend a previously scheduled

doctor appointment. She told a nurse, Jane Jacobsen (Jacobsen), and a doctor, Timothy

James Adams, M.D. (Dr. Adams) what had occurred between her and Slavin. Dr. Adams,

Merryfield’s physician for an emphysema condition, treated Merryfield for injuries to her

face and chest. Dr. Adams entreated Merryfield to call the police, but she was fearful that

Slavin would retaliate by killing her cat. After Merryfield agreed, Dr. Adams had Jacobsen

call the police.   Deputy Sheriff Dan Springer (Springer) responded to the call and

interviewed Merryfield regarding the incident.

¶10    Slavin was arrested and charged by Information with kidnaping and assault with a

weapon. He was subsequently released on bail after Merryfield contacted a bail bondsman,

Ben Thielen (Thielen), to arrange for Slavin’s release. Merryfield told Thielen that she

wanted Slavin to come back home because she needed him, and that on the night of January

18-19, 2001, she had suffered an “episode.” After his release, Slavin, with Merryfield, went

to see Slavin’s attorney, Ed Guza (Guza). Merryfield told Guza that the incident with Slavin

did not happen. Merryfield also told her subsequent caregiver, Jeff Michael Ohannesian

(Ohannesian), that she was drunk on the night of January 18-19, 2001, that she had wanted

to go outside of her home because she had felt hot and confined, and that she did not


                                             4
remember if anyone was in the trailer. Further, Merryfield called Springer and told him that

the incident with Slavin did not happen and that she had “made it all up.” Then, when Slavin

was arrested and placed in jail again following a subsequent assault on Merryfield,

Merryfield re-contacted Springer and told him that she was going back to her original story

because Slavin was in jail.

¶11    Merryfield also spoke with Kathleen O’Toole (O’Toole), a reporter with the Bozeman

Daily Chronicle (Chronicle), and Ray Ring (Ring), the Chronicle’s editor, about the

incident. An article was published in the Chronicle’s February 16, 2001, edition, wherein

Merryfield was quoted as saying that she could not in “good conscience” say the incident

with Slavin occurred “the way the police describe it” and that because of her conditions, she

needs to be restrained sometimes. After the story ran, Guza met with O’Toole and Ring

regarding their interview with Merryfield, and he had subpoenas issued for them on June 19,

2001, to appear at trial. O’Toole and Ring moved to quash the subpoenas on July 6, and the

District Court, referencing § 26-1-903, MCA, quashed the subpoenas on July 9, the day

before trial.

¶12    Slavin also filed a motion in limine which sought leave for Slavin’s expert, Dr. Paul

Bach (Dr. Bach), to testify regarding certain instances of Merryfield’s past conduct in

support of Slavin’s theory that Merryfield, on the night in question, had suffered a seizure

in which Slavin had been trying to restrain her. These instances included Merryfield’s

accosting of a Great Falls police officer who was investigating a car accident, and her

subsequent memory lapse regarding the incident; her threat to shoot a neighbor, viewed as


                                             5
an incident of disorderly conduct, and her later inability to remember the incident; her

initiation of criminal charges against another individual whom she claimed had shot a

telephone out of her hand and her later acknowledgment that she had misrepresented facts

to police; her arrest for driving 91mph in a 65-mph zone and the State’s subsequent dismissal

of the charges due to her medical conditions; Merryfield’s previous allegation that Slavin

had assaulted her, her oral and written retraction of the assault report, and later

acknowledgment that her retraction had not been truthful; and two DUI charges that

Merryfield had pending against her at the time of trial herein. The District Court ruled that

Slavin could inquire into the incident involving Merryfield’s claim that a telephone had been

shot out of her hand, and about her previous assault allegation against Slavin, including the

untruthful statements Merryfield had given in those incidents. However, Slavin was

prohibited from inquiring about the assault on the peace officer, the disorderly conduct

incident, the speeding ticket, and two pending DUIs.

¶13    The District Court also permitted Dr. Bach to testify that he had reviewed

Merryfield’s file and had based his opinions on other incidents in which she may have acted

in accordance with his conclusion about the effects of the seizure disorder and her

medication, but that he could not “get into the specific nature of that prior conduct.” The

court allowed Dr. Bach to testify generally as to the nature and symptomatology of

Merryfield’s disorder and the side effects associated with her medications, combined with

alcohol.




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¶14    Following trial, the jury convicted Slavin of kidnaping but acquitted him of the

offense of assault with a weapon and convicted him instead of misdemeanor assault. Slavin

appeals the District Court’s decision to quash the subpoenas for O’Toole and Ring and the

District Court’s limitation of Dr. Bach’s testimony.

                                       DISCUSSION

                                        ISSUE ONE

¶15 Did the District Court properly quash the defendant’s subpoenas for the newspaper
reporter and editor to appear and testify at trial?

¶16    The District Court quashed Slavin’s subpoenas for O’Toole and Ring to appear and

testify pursuant to § 26-1-901 et. seq., MCA, the Media Confidentiality Act, commonly

known as the reporter shield statute. Slavin argues that the Sixth Amendment and the

Montana Constitution guarantee him the right to compel the attendance of witnesses on his

behalf and that these constitutional rights should prevail over the reporter’s shield statute.

He asserts that O’Toole and Ring’s testimony was necessary because Merryfield’s credibility

was at issue, and they could have offered testimony regarding Merryfield’s demeanor during

the interviews, how the interviews originated, and the specific recantations Merryfield made

in the interviews.

¶17    The State argues, first, that Slavin’s constitutional argument against assertion of the

reporter privilege was not preserved for appeal. The State also argues that § 26-1-902, MCA,

provides a privilege against compelling O’Toole and Ring to testify and that, even if O’Toole

and Ring’s testimony should have been allowed, any error in excluding it was harmless.



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¶18    Subpoenas for O’Toole and Ring to testify were issued three weeks before trial, but

it was not until the Friday before trial that O’Toole and Ring moved to quash the subpoenas.

The parties submitted briefs, which they had a half day to prepare, and thereafter the District

Court conducted a hearing and quashed the subpoenas on the basis of § 26-1-901 et seq.,

MCA. While Slavin did not make any constitutional arguments in his brief, he did raise the

constitutional issue during the hearing. Although the State asserts that Slavin’s constitutional

issue was not properly raised because O’Toole and Ring did not respond to this argument

during the hearing, and the District Court did not address the issue, the limited opportunity

Slavin had to prepare for the hearing, and his raising of the issue orally, mitigate against the

State’s position. We hold that Slavin properly preserved the issue for appeal.

¶19    However, we agree with the State that, even if we would conclude that O’Toole and

Ring’s testimony was improperly excluded under § 26-1-902, MCA, any error was harmless

under our analysis adopted in State v. Van Kirk, 2001 MT 184, 306 Mont. 215, 32 P.3d

735.

¶20    Generally, a trial error is one that occurs during the presentation of a case to the jury

and a structural error is typically one of constitutional dimensions that precedes the trial.

Van Kirk, ¶¶ 38, 40. While any error here technically occurred before the trial, we conclude

that it constitutes trial error. Recently, in State v. Flowers, 2004 MT 37, 320 Mont. 49, ___

P.3d. ___, we held that an error in failing to exclude a state’s witness, though occurring prior

to trial, was nonetheless trial error. We concluded that the error was not “of such magnitude

that it undermined the fairness of the entire trial proceeding.” Flowers, ¶ 27. While the


                                               8
District Court here excluded the evidence in a pre-trial order, this was an evidentiary issue

which affected the testimony presented to the jury during the trial. Thus, any error

manifested itself in the trial process and can be “qualitatively . . . weighed against the

admissible evidence introduced at trial.” Van Kirk, ¶ 38. Further, while Slavin raised a

constitutional argument in support of the introduction of the evidence, quashing the

subpoenas was not, in and of itself, an issue of constitutional dimension which affected the

framework within which the trial proceeded. Van Kirk, ¶ 38; Flowers, ¶ 27. Slavin does not

argue on appeal that the error was structural.

¶21    Trial error is not presumptively prejudicial, but is analyzed to determine whether the

error was harmless under § 46-20-701(1), MCA, the harmless error statute. Van Kirk, ¶ 40.

Slavin asserts that the case against him rested upon Merryfield’s credibility, and that his

ability to challenge her credibility was diminished without O’Toole and Ring’s unbiased

testimony. He argues that the error was thus prejudicial, and demonstrates that a reasonable

possibility existed that the jury would not have convicted him had O’Toole and Ring

testified.

¶22    In response to a claim that error affected the trial outcome, “it then becomes

incumbent on the State to demonstrate that the error at issue was not prejudicial.” Van Kirk,

¶ 42. Here, because the claimed error was a court ruling which excluded testimony, the State

must demonstrate there was no reasonable possibility that the exclusion contributed to the

conviction.




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¶23    The State argues that Slavin was not prejudiced because he was able to introduce the

same evidence of Merryfield’s statements to O’Toole and Ring during Merryfield’s cross-

examination. Merryfield testified that she had made the statements to the reporters which

were attributed to her in the article, and the relevant portion of the article was introduced as

an exhibit. The State notes that Slavin made no offer of proof at trial demonstrating the

additional evidence he sought to introduce through O’Toole and Ring. Slavin responds that

the reporters could have testified to Merryfield’s demeanor, her willingness to talk to them

and her specific recantations.

¶24    The record indicates that Slavin fully explored the interviews with O’Toole and Ring

during his cross-examination of Merryfield. Merryfield testified that she had, indeed, told

the reporters that the testimony she had given to police about the incident could have been

mistaken. The relevant portion of the article itself was admitted as an exhibit and, during her

testimony, Merryfield was asked to read aloud from the article in court. She quoted from the

article as follows:

       In an interview with the Chronicle Merryfield said some of the trouble was a
       misunderstanding that stems from her suffering from epilepsy, temporal lobe
       seizures. She said that at times she needs to be restrained and that she has
       known Slavin for 30 years and he is her caregiver. I can’t in good conscious
       say it happened the way the police described it, she said. Even testimony she
       gave to the police could have been mistaken due to her condition.

¶25    Further, Thielen, Slavin’s bail bondsman, testified that Merryfield had told him she

had suffered an “episode” that night. Guza, Slavin’s attorney, testified that Merryfield had

met with him and stated that the incident had not happened. Ohannesian, Merryfield’s



                                              10
subsequent caregiver after Slavin, testified that Merryfield had told him that she was drunk

on the night of the incident, had gone outside because she had felt hot and confined, and did

not remember if anybody else was in the trailer. Springer testified that Merryfield had called

him and told him that the altercation between her and Slavin had not occurred and that she

had “made it all up.” Springer also told the court that Merryfield later contacted him, after

Slavin was put back in jail, and told Springer she was reaffirming her original story because

Slavin was again in jail.

¶26    There was an abundance of evidence introduced in this trial for Slavin to challenge

Merryfield’s credibility. O’Toole and Ring’s observations about Merryfield’s demeanor

during the interviews and their versions of her recantations would have added little or

nothing to their report in the newspaper article and the other evidence introduced at trial. We

conclude that there was no reasonable possibility that any error in excluding their testimony

contributed to Slavin’s conviction, and affirm the District Court.

                                        ISSUE TWO

¶27 Did the District Court abuse its discretion in limiting the testimony of the defendant’s
expert witness?

¶28    Slavin challenges the District Court’s limitations on Dr. Bach’s testimony. Slavin

sought leave for Dr. Bach to testify about six instances of Merryfield’s prior conduct and

about the medical and legal documents upon which he had relied in reaching his opinion that

Merryfield may have suffered a seizure on the night in question, for the purpose of assisting

the jury in understanding Merryfield’s disorder. The District Court permitted Dr. Bach to



                                              11
address two of the six instances specifically, and to testify that he had reviewed Merryfield’s

file and had based his opinion on her other incidents. The District Court also permitted Dr.

Bach to give a general explanation of the nature and symptomatology of Merryfield’s

disorder, including the effect of her medications and alcohol, but prohibited Dr. Bach from

testifying about the specific nature of the other incidents revealed in the documents he had

reviewed.

¶29    Slavin argues that the District Court allowed Dr. Bach to testify “only in general

terms” about the medical and legal documents he had reviewed, and with the limitation upon

the incidents about which Dr. Bach could specifically reference, Dr. Bach was prevented

from presenting the full picture to the jury, resulting in unfair trial for Slavin. He argues that

the restrictions placed upon Dr. Bach’s testimony are inconsistent with this Court’s holding

in Benjamin v. Torgerson, 1999 MT 216, 295 Mont. 528, 985 P.2d 734.

¶30    Benjamin involved a civil suit alleging that the defendant had sexually abused the

plaintiff. We noted therein that the evidentiary standards under Rule 404(b), M.R.Evid., and

the modified Just rule, established in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, were

equally applicable in the civil context. Benjamin, ¶ 17. This Court affirmed the district

court’s admission of testimony by defendant’s experts which referenced several prior

untruthful statements by plaintiff that were probative, concluding the evidence did not

constitute improper comment upon plaintiff’s credibility. Benjamin, ¶ 49. We also affirmed

the district court’s exclusion of plaintiff’s evidence of defendant’s sexual abuse of other




                                               12
victims as not satisfying the admissibility requirements of Rule 404(b), M.R.Evid. Benjamin,

¶ 24.

¶31     Benjamin is instructive but does not require reversal. The district court in Benjamin

considered the proffered evidence of plaintiff’s prior untruthful statements very carefully,

admitting testimony about some instances, but excluding others. Benjamin, ¶ 47. We noted

the discretion given to trial courts in handling this difficult issue:

        The fact that discretion is permitted, infers that there may be more than one
        permissable [sic] way to resolve an evidentiary issue and that the District
        Court is in the best position to make that decision. In other words, there is not
        a purely correct or incorrect answer to every evidentiary issue. This is
        particularly true regarding evidence of prior acts.

Benjamin, ¶ 15.

¶32     Here, the District Court carefully considered each of the incidents about which Slavin

sought to introduce evidence, and allowed specific reference to the two incidents in which

Merryfield had misrepresented facts to law enforcement, one of which was a previous report

Merryfield had made about Slavin. However, mindful of the general prohibition against the

introduction of other crimes, wrongs or acts to establish that Merryfield acted in

conformance therewith, Rule 404(b), M.R.Evid., the District Court limited Dr. Bach’s

testimony about the remaining incidents to only a general reference, because none of those

incidents involved an untruthful statement by Merryfield.

¶33     This Court will not overturn a district court’s evidentiary determination absent an

abuse of discretion. State v. Bingman, 2002 MT 350, ¶ 31, 313 Mont. 376, ¶ 31, 61 P.3d

153, ¶ 31. Like the trial judge in Benjamin, the District Court devised a careful solution that


                                               13
admitted evidence of Merryfield’s medical condition and her symptomatology, of the side

effects of her medication and alcohol use, of Dr. Bach’s general review of her medical and

legal documentation, and of two specific incidents which revealed past untruthful statements.

Clearly, Slavin was provided an ample opportunity to demonstrate Merryfield’s conditions

and limitations thereunder in support of the defense theory. We conclude that in limiting Dr.

Bach’s testimony, the District Court did not abuse its discretion.

¶34    Affirmed.


                                                  /S/ JIM RICE


We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA O. COTTER
/S/ JIM REGNIER




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