                                                                                           June 10 2014


                                          DA 13-0116

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 151



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHRISTOPHER LEE GLEED,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. BDC 2012-223
                        Honorable Jeffrey M. Sherlock, Presiding Judge


COUNSEL OF RECORD:

                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



                                                   Submitted on Briefs: May 15, 2014
                                                              Decided: June 10, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶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?

                                    BACKGROUND

¶3     In August 2012, the State charged Gleed with aggravated assault, alleging that

Gleed intentionally submerged G.C. in scalding water 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


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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



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in what manner Dr. Kaplan’s testimony would be presented to the jury and stated, “We

have an expert witness we’re going to bring here hopefully. He’s in New Zealand right

now. And hopefully we can get him here by the time this trial is over . . . we’re going to

either bring him up here or have him testify by video conference.”

¶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, “Our expert I think is in transit from New Zealand to San Francisco. I

don’t think we’re going to be able to get him. And accordingly, at the end of Mr. Gleed’s

testimony, I would ask the Court to recess, take a recess for one day, so that we can get

that expert witness here.” 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.
      Defense Counsel: Your Honor, if I can get him by video, we’ll certainly do
      that, but I’m not certain we can arrange that.
      Court: Well, we’ll see where we go tomorrow. I’ll take that under
      advisement and see where we’re at tomorrow, and the efforts to get him on
      video. And we would certainly accommodate that. Okay.

¶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, “Your Honor, we cannot

get our expert here. And so I would request that the Court recess until we can get our


                                            4
expert here, and I suspect that is Friday.” The court responded, “Okay. I’ll have to deny

that. I’m sorry.”

¶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.

                               STANDARD OF REVIEW

¶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).

                                      DISCUSSION

¶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


                                              5
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

(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.


                                             6
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 to

the civil statute in dicta. Toulouse, ¶ 22. It is clear that § 46-13-202, MCA, governs a

motion for continuance in criminal matters, and does not require an accompanying

affidavit unless specifically required by the court. State v. Morales, 284 Mont. 237, 240,

943 P.2d 1286, 1288 (1997) (“The controlling statute to determine whether the District

Court should have granted Morales’s motion for a continuance is § 46-13-202(3),

MCA.”); see also Fife, 187 Mont. at 68, 608 P.2d at 1071; State v. Sotelo, 209 Mont. 86,

90, 679 P.2d 779, 782 (1984); Borchert, 281 Mont. at 324, 934 P.2d at 173; State v.

Martinez, 1998 MT 265, ¶ 22, 291 Mont. 265, 968 P.2d 705; State v. Root, 1999 MT 203,

¶ 12, 296 Mont. 1, 987 P.2d 1140; Fields, ¶ 20; Garcia, ¶ 14. There is no indication in the

record that the District Court, in its discretion, imposed this affidavit requirement on

Gleed’s motion for continuance. Thus, the fact that Gleed did not include an affidavit

with his motion for continuance is not dispositive.

¶13    Despite the State’s attempts to distinguish it from the facts at hand, our decision in

Fields proves instructive to the instant case. In Fields, we held that the district court

abused its discretion in denying the defendant’s motion for continuance in a deliberate

homicide case. Fields, ¶ 26. Fields presented a defense of extreme mental or emotional

stress, and planned to have two psychiatrists testify as expert witnesses about his mental

state. Fields, ¶ 7. Trial began on a Monday, and was expected to last four or five days.


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Fields, ¶¶ 9, 11, 22. Fields told the jury about these two experts during voir dire and his

opening statement. Fields, ¶ 11. The trial progressed ahead of schedule, and defense

counsel noted that they would be “done too fast” in order to hear the testimony of one of

the psychiatrists, Dr. Stratford. The State rested, and by Wednesday afternoon Fields had

called all defense witnesses except for Dr. Stratford, who was scheduled to testify on

Thursday morning.      Fields, ¶ 13.    Although Dr. Stratford could have appeared on

Wednesday afternoon, he was unwilling to appear ahead of schedule because he was

dealing with the recent death of his mother. Fields, ¶¶ 13-14, 24. Fields then asked to

recess until Thursday morning, to allow for Dr. Stratford to appear as originally

scheduled.   Fields, ¶ 13.    The State objected, and the District Court denied Fields’

motion, stating that Fields had already presented the testimony of one psychiatrist who

testified that Fields was suffering from emotional stress, and therefore Dr. Stratford’s

testimony was unnecessary. Fields, ¶¶ 15-16.

¶14    On appeal, we held that the district court’s denial of Fields’ motion for

continuance was an abuse of discretion.           After considering all relevant factors, we

explained:

       Here, the charged offense at issue is deliberate homicide; the delay
       requested was less than one-half day in a case originally estimated to
       require a week; . . . Fields’ counsel had told the jury he would present two
       psychiatric experts; Dr. Stratford’s testimony would go directly to Fields’
       defense of mitigated deliberate homicide; and, finally, the State used in its
       closing argument the facts that Fields presented only one expert . . . . On
       this record, and considering the interests of justice and Fields’ right to a fair
       trial, we conclude the motion for a recess was reasonable. On that basis,
       we hold the District Court abused its discretion in refusing to grant Fields’
       motion for a recess to allow Dr. Stratford to testify.



                                              8
Fields, ¶ 26.

¶15    Fields directly applies to the case at hand. The State contends that Gleed was not

sufficiently diligent to satisfy the § 46-13-202, MCA, criteria because his motion was

“last-minute,” and because Gleed knew about Dr. Kaplan’s unavailability “since at least

November 12, 2012,” yet “did nothing to alert the district court.” However, the record

does not support the State’s specific factual assertions in this regard, and, additionally,

these assertions do not represent the totality of the circumstances regarding Gleed’s

diligence. The record shows that the State, and ostensibly the District Court, also knew

of Dr. Kaplan’s unavailability, as it was clearly stated in the expert report that Gleed filed

on November 12. Just as in Fields, the court, the State, and Gleed’s counsel, all made

repeated statements to the jury that the trial could take all week. See Fields, ¶¶ 9, 11, 22.

The fact that the State included 22 names on its witness list supports the notion that the

trial could have lasted all week. Thus, it is clear that the State, Gleed, and the District

Court were operating under the assumption that the trial could last until Friday.

Additionally, on Tuesday, once it was clear that the trial was progressing faster than

planned, Gleed informed the court that he was planning to move for a continuance in

order to allow for Dr. Kaplan to testify. Here, Gleed’s actions were at least comparable

to those of Fields, who did not specifically inform the court that he was planning to move

for a continuance in advance, but merely alerted the court that they would “be done too

fast” in order to hear the other expert’s testimony. Fields, ¶ 11. We conclude that, under

the facts before us, Gleed met the diligence requirement contained in § 46-13-202, MCA.

See Fields, ¶¶ 22-24; Fife, 187 Mont. at 70, 608 P.2d at 1072; Borchert, 281 Mont. at


                                              9
326-27, 934 P.2d at 175; compare State v. Duncan, 2008 MT 148, ¶ 40, 343 Mont. 220,

183 P.3d 111 (Where defendant had already been granted two continuances over a period

of two and a half years in a sexual assault case, and moved for a third continuance two

days before trial stating he needed more time to prepare, we held that the trial court did

not abuse its discretion in denying defendant’s motion because defendant failed “to make

any showing of diligence in preparing for the trial” or “explain why . . . he was not

afforded sufficient time to prepare his defense.”). In drawing this conclusion, however,

we must observe that defense counsel has made only the minimal showing necessary to

demonstrate diligence. Notably absent from the record is any inquiry from the District

Court or the County Attorney regarding whether Dr. Kaplan was actually available to

testify and what arrangements had been made by defense counsel to secure his presence

at the trial on Friday.

¶16    Further, application of the Fife factors supports our conclusion that the interests of

justice and Gleed’s right to a fair trial necessitated the grant of his motion for continuance

for a day and a half in order to allow Dr. Kaplan to testify. 187 Mont. at 69, 608 P.2d at

1071-72; Fields, ¶ 20. First, the only conclusion that can be drawn from the record is that

there was “a reasonable expectation or prospect of obtaining” Dr. Kaplan’s presence in

this case if the trial had been continued from Wednesday afternoon on December 19 to

Friday, December 21.           Although it is unclear whether the possibility of

videoconferencing was explored further, Dr. Kaplan’s own statements in his report, along

with defense counsel’s repeated reference to Dr. Kaplan’s forthcoming testimony,

support the conclusion that there was a reasonable expectation that he would testify as


                                             10
scheduled. While perhaps the District Court may have suspected that Dr. Kaplan was

likely not available or otherwise unable to testify, the record does not bear out this

suspicion. We must consider the request for continuance based upon the record before

us, which presents no inquiry by the District Court or County Attorney regarding Dr.

Kaplan’s ability to testify, by videoconference or otherwise, on Friday.

¶17    Second, it is undisputed that Dr. Kaplan’s testimony would have helped Gleed’s

case, as Dr. Kaplan emphatically supported Gleed’s statement that the burns were

accidental. The importance of Dr. Kaplan’s testimony was even greater than that of the

expert testimony in Fields, as Dr. Kaplan was the only defense expert testifying about the

causation of the burns. Here, Dr. Kaplan’s testimony was not merely cumulative or of

questionable importance—to the contrary, it was critical in establishing Gleed’s defense.

Consequently, the jury was tasked to deliberate a case that presented expert testimony as

to causation from the State without the opposing expert viewpoint that Dr. Kaplan would

have provided.

¶18    Finally, the record indicates that Dr. Kaplan intended to testify, as he stated in his

report. Thus, although the facts at hand present a close call, in considering the totality of

the circumstances, including the significance of Dr. Kaplan’s testimony to Gleed’s

defense, we hold that the District Court abused its discretion in refusing to grant Gleed a

recess of the trial for a day and a half in order to present Dr. Kaplan’s testimony. See

Fields, ¶ 26; Fife, 187 Mont. at 71, 608 P.2d at 1072-73 (in holding that the district court

abused its discretion in denying defendant’s motion for continuance, we stated:

“Defendant’s effort was in good faith; the testimony was not cumulative; the testimony


                                             11
was material; . . . the delay would have been minimal and no one would have been

inconvenienced thereby; and, of course, the value, as stated above is a close question

which should have been resolved in favor of defendant, assuring him a fair trial.

Conversely, without the testimony a conviction resulted.”); Borchert, 281 Mont. at

325-27, 934 P.2d at 173-75 (the district court abused its discretion in denying defendant’s

motion for continuance when defendant specified “several bases for his contention that

the interests of justice required that his motion for continuance be granted”).

¶19    In light of our reasoning in Fields, the State’s reliance on Toulouse is easily

distinguished. In Toulouse, a defendant requested a continuance in the middle of trial

until the following morning, in order to permit his sister, who was ill due to cancer and

chemotherapy, to testify on his behalf. Toulouse, ¶ 10. However, unlike in the instant

case, Toulouse offered “no reasonable expectation or prospect” of obtaining his sister’s

testimony “the next day, the next week, or the next month.” Toulouse, ¶ 17. More

importantly, Toulouse failed to demonstrate how his sister’s testimony would have aided

his defense. As previously stated, it is undisputed that Dr. Kaplan’s testimony would

have aided Gleed’s defense. As such, the holding in Toulouse does not extend to the

facts presented by the instant case.

                                       CONCLUSION

¶20    We reverse Gleed’s conviction, vacate the District Court’s judgment, and remand

this matter for a new trial in a manner consistent with this Opinion.


                                                  /S/ LAURIE McKINNON



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We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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