                                                                                               09/05/2017


                                           DA 15-0290
                                                                                          Case Number: DA 15-0290

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 217



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DARYL E. STRANG,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Mineral, Cause No. DC 14-11
                        Honorable Ed P. McLean, Presiding Judge


COUNSEL OF RECORD:

                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


                                                    Submitted on Briefs: July 26, 2017

                                                               Decided: September 5, 2017


Filed:

                        __________________________________________
                                          Clerk
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


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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


1
   Strang and the State have asked that this Court take judicial notice of certain documents
contained in the record of Poat’s guardianship and conservatorship proceedings. The parties
have attached these documents—which include orders and minute entries—to their briefs on
appeal. These documents constitute records of a court of this state, of which we take judicial
notice. M. R. Evid. 202(b)(6), (d)(2); Draggin’ Y Cattle Co. v. Addink, 2016 MT 98, ¶ 14,
383 Mont. 243, 371 P.3d 970 (hereafter, Draggin’ Y II).


                                          3
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.




                                         4
¶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.


2
  The State decided not to call Dove, and the court did not rule on whether she could testify. We
thus address only the District Court’s decision regarding Parkin.


                                            5
                              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



                                         6
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, invalidating the power of attorney granted to STRANG,




                                         7
and invalidating the quitclaim deed providing STRANG an interest in [Poat’s] real

property on November 8, 2013.”

¶20    The explicit reference to Judge McLean’s involvement in the guardianship and

conservatorship proceedings put Strang on notice that the Judge in his criminal case had

presided in a civil case touching on Strang’s relationship with Poat. Strang did not bring

any concern to Judge McLean, but waited until after his final conviction to raise his

disqualification claim. He did not bring his claim “within a reasonable time” after

learning of “the facts forming the basis for a claim that the judge should be disqualified.”

Dunsmore, ¶ 20. In Draggin’ Y, the complaining party did not learn of the judge’s

potential conflict until after the judge had made key rulings in the case. We determined

that this presented “extenuating circumstances” warranting remand for a hearing under

§ 3-1-805, MCA, which provides the ordinary method for seeking a judge’s

disqualification. Draggin’ Y II, ¶¶ 16, 31. Here, in contrast, the initiating documents in

the State’s case against Strang put in the record Judge McLean’s participation in the

related civil action, and Strang could have raised his concerns with the judge or invoked

the procedure prescribed by § 3-1-805, MCA.                There were no “extenuating

circumstances” justifying Strang’s failure to assert a disqualification claim. Draggin’ Y

II, ¶ 15. He did not make his claim timely, and we conclude that he waived it. See

Draggin’ Y II, ¶ 19.

¶21    Strang asserts, however, that the timeliness requirement does not apply to his

disqualification claim because the claim is based on Judge McLean’s actual bias or

prejudice.    The Code of Judicial Conduct “does not allow parties to waive


                                         8
disqualification for bias or prejudice, and thus the timeliness requirement does not apply

when a disqualification claim is based on bias or prejudice.” Dunsmore, ¶ 18 (citing M.

C. Jud. Cond., Rule 2.12(C)).

¶22    A fair trial—which is “a basic requirement of due process”—requires “that any

judge who is biased or partial with regard to a particular matter or party be disqualified

from hearing the case.” Draggin’ Y II, ¶ 15 (citations and internal quotations omitted).

The Montana Code of Judicial Conduct provides, “A judge shall disqualify himself or

herself in any proceeding in which the judge’s impartiality might reasonably be

questioned.” M. C. Jud. Cond., Rule 2.12(A); Reichert v. State, 2012 MT 111, ¶ 50,

365 Mont. 92, 278 P.3d 455. This includes situations in which the “judge has a personal

bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts

that are in dispute in the proceeding.” M. C. Jud. Cond., Rule 2.12(A)(1). It includes

also situations in which the judge “previously presided as a judge over the matter in

another court.” M. C. Jud. Cond., Rule 2.12(A)(5)(d).

¶23    In Draggin’ Y, the District Court Judge presided over a stipulated settlement

agreement that two parties entered into without the authorization or participation of one

party’s insurer. Draggin’ Y III, ¶ 6. The insurer subsequently intervened and challenged

the settlement’s reasonableness, and the judge determined that the settlement was

reasonable. Draggin’ Y III, ¶ 6. At the same time that he was presiding over the case, the

judge entered into a similar stipulated settlement agreement in a personal matter without

his insurer’s participation or authorization. Draggin’ Y III, ¶ 22. The Office of the Court

Administrator, which acted as the judge’s “insurer” in his personal case, contested the


                                         9
reasonableness of the stipulated settlement. Draggin’ Y III, ¶ 22. The judge did not

disclose to the parties the existence of his own stipulated settlement or the fact that the

insurer in his case had contested the settlement’s reasonableness. Draggin’ Y III, ¶ 23.

We held that the judge “continued to have a present and immediate interest in his own

personal stipulated settlement” while presiding over the case. Draggin’ Y III, ¶ 25. We

determined that the judge’s “impartiality in deciding the stipulated settlement’s

reasonableness might reasonably be questioned” and therefore that he should have been

disqualified. Draggin’ Y III, ¶ 26 (internal quotations omitted).

¶24    Draggin’ Y was a case in which the judge had “a present and immediate interest in

his own personal [litigation]” that involved issues substantially similar to those over

which the judge was then presiding. Draggin’ Y III, ¶ 26 (emphasis added). Strang has

not shown how this case bears any similarity. He does not establish that Judge McLean

had any personal bias or prejudice against him.          The question as to the judge’s

impartiality in Draggin’ Y stemmed from his involvement in a personal dispute that bore

a strong resemblance to the dispute over which he was presiding. Draggin’ Y III, ¶ 22.

By contrast, Strang’s disqualification claim arose only from Judge McLean’s rulings in a

related court proceeding and not from any of Judge McLean’s personal statements or

actions outside of his judicial role.

¶25    Strang points only to Judge McLean’s adverse rulings against him to support his

allegation of Judge McLean’s bias or prejudice. Yet a judge’s previous adverse rulings

against a party do not constitute sufficient evidence to demonstrate a judge’s personal

bias or prejudice against that party. See In re Marriage of Gahr, 212 Mont. 481, 486,


                                         10
689 P.2d 257, 260 (1984) (holding that defendant failed to meet his burden of

demonstrating a presumption of bias based on the judge’s denial of several of defendant’s

motions); Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)

(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

motion.”); United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710

(1966) (“The alleged bias and prejudice to be disqualifying must stem from an

extrajudicial source and result in an opinion on the merits on some basis other than what

the judge learned from his participation in the case.”); see also § 3-1-805(1)(b), MCA

(stating that an affidavit alleging a judge’s personal bias or prejudice “will be deemed not

to have been made in good faith if it is based solely on rulings in the case which can be

addressed in an appeal from the final judgment”). Judge McLean’s adverse rulings

against Strang’s interests in the guardianship and conservatorship proceedings do not

establish personal bias or prejudice against Strang. Because Strang’s disqualification

claim was not “a claim of actual bias or prejudice,” the timeliness requirement applies.

Dunsmore, ¶ 19.

¶26    Moreover, the knowledge that Judge McLean obtained in Poat’s guardianship and

conservatorship proceedings does not constitute “personal knowledge of facts that are in

dispute” in Strang’s criminal case sufficient to warrant disqualification under M. C. Jud.

Cond., Rule 2.12(A)(1). “Montana’s Code of Judicial Conduct is based on the ABA

Model Code of Judicial Conduct.” Draggin’ Y II, ¶ 26. Under the Model Code of

Judicial Conduct,




                                         11
      Knowledge about matters in a proceeding that has been obtained by a judge
      within the proceeding itself or within another legal proceeding is
      permissible and does not call for disqualification. Therefore, presiding over
      a civil case does not disqualify the judge from presiding over the criminal
      case even if it is the same matter.

Charles Gardner Geyh et al., Judicial Conduct and Ethics § 4.10, 4-42 (5th ed. 2013)

(emphasis added) (citing Lee v. State, 735 N.E.2d 1169 (Ind. 2000), and Santisteban v.

State, 72 So.3d 187 (Fla. Dist. Ct. App. 2011)). “To be disqualifying, the knowledge

must be obtained extrajudicially rather than in the judge’s official capacity during the

course of a proceeding.” Arthur H. Garwin et al., Annotated Model Code of Judicial

Conduct 308 (3d ed. 2016) (citing Los v. Los, 595 A.2d 381 (Del. 1991), Poorman v.

Commonwealth, 782 S.W.2d 603 (Ky. 1989), and In re T.L.S., 481 A.2d 1037 (Vt.

1984)). Strang is incorrect in asserting that Judge McLean should have been disqualified

under M. C. Jud. Cond., Rule 2.12(A)(1).

¶27   Strang’s argument that Judge McLean should have been disqualified on the

ground that he “previously presided as a judge over the matter in another court” similarly

is not correct. M. C. Jud. Cond., Rule 2.12(A)(5)(d). This provision of the Code is

intended to bar a judge from hearing a case on appeal when the judge presided over that

same case in a different court. See Arthur H. Garwin et al., Annotated Model Code of

Judicial Conduct 332 (3d ed. 2016) (“Trial judges sometimes sit by designation on courts

of appeal, and vice versa. Such judges should not hear cases over which they presided in

a different court, and this Rule makes that clear.”). This provision does not prevent a

judge from presiding over a case simply because the judge previously presided over a

related case. See In re Aubuchon, 309 P.3d 886, 890 (Ariz. 2013) (holding that, in a


                                        12
disciplinary proceeding in which the presiding judge had previously participated in cases

related to, but distinct from, the disciplinary proceeding, the judge had not “previously

presided as a judge over the matter in another court”).

¶28    Here, Strang’s criminal case constitutes “the matter” at hand. M. C. Jud. Cond.,

Rule 2.12(A)(5)(d).    Judge McLean did not preside over Strang’s criminal case “in

another court.” M. C. Jud. Cond., Rule 2.12(A)(5)(d). Rule 2.12(A)(5)(d) therefore does

not apply. Strang cites to Bullman v. State, 2014 MT 78, 374 Mont. 323, 321 P.3d 121,

in support of his assertion that Rule 2.12(A)(5)(d) required Judge McLean’s recusal. Our

holding in Bullman relied on Rule 2.12(A)(5)(a), which requires disqualification when a

judge “served as a lawyer in the matter in controversy.” Bullman, ¶¶ 14-17 (emphasis

added) (citation and internal quotations omitted). Judge McLean did not serve “as a

lawyer in the matter in controversy.” M. C. Jud. Cond., Rule 2.12(A)(5)(a). Bullman

does not apply.

¶29    Judges frequently hear cases involving parties against whom they have ruled in

previous cases. If judges had to recuse themselves from every such case, they could not,

as a practical matter, fulfill their duty to “be available to decide matters that come before

the courts.” M. C. Jud. Cond., Rule 2.7 cmt. [1]. Judge McLean’s involvement in both

the guardianship and conservatorship proceedings and Strang’s criminal case constituted

a routine execution of his professional duties as a judge. As such, it did not cause Judge

McLean’s impartiality to “reasonably be questioned.” M. C. Jud. Cond., Rule 2.12(A).

¶30    Because Strang’s disqualification claim was untimely, because he did not establish

a valid claim of personal bias or prejudice, and because he has not raised a colorable


                                         13
claim that Judge McLean’s impartiality might “reasonably be questioned,” we conclude

that his request for a disqualification hearing lacks merit.       M. C. Jud. Cond., Rule

2.12(A).

¶31    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.

¶32    Strang contends that the State “ambushed” him by disclosing Parkin as a witness

ten days before trial and by producing the Wells Fargo bank records just three days

before trial. He argues that the State gave him almost no time to prepare proper rebuttals

to these late disclosures. Strang asserts that the State knew or should have known about

the content of Parkin’s testimony and about the bank records well in advance of trial. He

urges us to hold that the District Court’s admission of Parkin’s testimony and the bank

records at trial was error that warrants a new trial.

¶33    Montana law requires the prosecution, upon request, to make available to the

defendant certain “material and information within the prosecutor’s possession or

control,” including documents it plans to introduce and information about witnesses it

plans to call at trial. Section 46-15-322(1), MCA. If, after its initial disclosure, the State

“discovers additional information or material that would be subject to disclosure had it

been known at the time of disclosure,” it must “promptly notify” the defendant “of the

existence of the additional information or material and make an appropriate disclosure.”

Section 46-15-327, MCA. The purpose of these statutes is to “prevent surprise” at trial.

State v. Stewart, 2000 MT 379, ¶ 22, 303 Mont. 507, 16 P.3d 391.




                                          14
¶34    A district court may, within its discretion, impose sanctions for discovery

violations.   State v. Pierce, 2016 MT 308, ¶ 20, 385 Mont. 439, 384 P.3d 1042;

§ 46-15-329, MCA.      “Such discretion allows the court to consider the reason why

disclosure was not made, whether noncompliance was willful, the amount of prejudice to

the opposing party, and any other relevant circumstances.” Pierce, ¶ 20 (citing State v.

Golder, 2000 MT 239, ¶ 11, 301 Mont. 368, 9 P.3d 635). “Absent a clear abuse of

discretion, the decision of the district court must be upheld.” Golder, ¶ 11. A district

court does not abuse its discretion in declining to impose discovery sanctions when the

State’s failure to disclose evidence “was not willful and no prejudice resulted.”

Golder, ¶ 11; accord State v. Van Voast, 247 Mont. 194, 202, 805 P.2d 1380, 1385

(1991) (upholding the District Court’s decision to allow late disclosure of a witness

because the reason for the late disclosure was the State’s “lack of knowledge of which

[the witness] would be testifying,” there was “no indication of willful noncompliance

with the discovery statutes,” and the defendant knew the identity of the witness

twenty-four days before trial).

       A. The State’s Disclosure of Parkin.

¶35    Long before the State disclosed its intent to call Parkin as a witness, Parkin

approached the prosecutor’s office and asked to make an appointment.        She told a

receptionist that Strang had inquired with her company about obtaining a quitclaim deed

to transfer Poat’s property to him. The receptionist informed Parkin that the prosecutor

already had evidence of the property transfer to which Parkin referred. Parkin did not

mention that she had overheard Strang state falsely that Poat had “no living relatives.”


                                       15
Parkin left without meeting with the prosecutor. The State first learned of Parkin’s

knowledge of Strang’s statement on January 2, 2015, when, during a conversation at the

courthouse between Parkin’s coworker, Dove, and the prosecutor’s assistant, Dove

informed the assistant about the statement. At that point the prosecutor promptly notified

Strang that the State intended to call Parkin and Dove as witnesses. Strang did not

contact Parkin in the ensuing ten days before trial.

¶36    The District Court reasonably determined, given the evidence, that the State—

through no fault of its own—was unaware until January 2, 2015, that Parkin knew about

Strang’s comment that Poat had “no living relatives.” Prior to that date, the State did not

possess “knowledge of [facts to] which [Parkin] would be testifying.”          Van Voast,

247 Mont. at 202, 805 P.2d at 1385. Once the State became aware of Parkin’s knowledge

of Strang’s statement, it “promptly” notified the defense and made “an appropriate

disclosure.” Section 46-15-327, MCA. Although Parkin approached the prosecutor’s

office well before trial, she did not alert that office to her knowledge of Strang’s

comment.     The District Court reasonably concluded from this that the State’s late

disclosure of Parkin “was not willful.” Golder, ¶ 11. As the court noted, Strang had ten

days between Parkin’s disclosure and the time of trial to interview her and seek possible

rebuttal witnesses. He did neither. The District Court properly considered “the reason

why disclosure was not made, whether noncompliance was willful, the amount of

prejudice to the opposing party, and any other relevant circumstances.” Pierce, ¶ 20.

Strang cannot show a “clear abuse of discretion”; therefore, the court’s decision not to

exclude Parkin or to grant a new trial “must be upheld.” Golder, ¶ 11.


                                         16
       B. The State’s Disclosure of Poat’s Bank Records.

¶37    The State’s Information alleged that Strang exploited Poat “between August 1,

2012 and September 27, 2013” in order to obtain his “money, assets, or property.” The

Affidavit and Motion for Leave to File Information stated that “between July 10, 2013

and September 19, 2014, STRANG wrote at least six checks to himself totaling $13,800”

and that Strang “wrote a significant number of other checks on [Poat’s] account.” During

the initial discovery, the State provided Strang with all of Poat’s bank records that it had

received during the guardianship and conservatorship proceedings.             These records

included six checks made out to Strang from Poat’s account.             The prosecutor had

received the records from the conservator and informed the court during discussions on

Strang’s motion in limine that she believed at the time that this set of documents

constituted a complete record of Poat’s bank account during the period of Strang’s

alleged financial exploitation. The State learned later that it had not gotten all of the bank

records, and it subpoenaed Wells Fargo to obtain the remainder. The additional Wells

Fargo records that the State received and transmitted to the defense on January 9 included

dozens of additional checks made out to Strang.

¶38    After Strang filed his motion in limine, the court questioned him about his prior

knowledge of the bank records that the State disclosed on January 9. Strang informed the

court that the bank had issued online statements for Poat’s account and that Strang had

been the recipient of those statements. The court determined that Strang had been aware

of the existence of the canceled checks well before January 9 and that the prosecution had

complied with its duty to promptly disclose all the evidence in its possession or control.


                                          17
¶39    The record supports the District Court’s conclusion that Strang was aware of other

checks and had access to the bank records in question well before the State disclosed

them three days before trial. The checks were made out to Strang. Strang did not present

evidence to counter the District Court’s conclusion that he had access to Poat’s bank

statements during the time that the checks in question were issued. The bank statements

that the State provided Strang during initial discovery—even though they included copies

of only six checks—encompassed the same time period in which the dozens of additional

checks were issued to Strang from Poat’s account. The State’s production of six checks

from Poat’s account during initial discovery put Strang on notice that it intended to

introduce checks that were issued to Strang from Poat’s account.

¶40    The State initially provided Strang with all of Poat’s bank records that it had

within its “possession or control.” Section 46-15-322(1), MCA. The State did not

withhold any bank records. Once it “discover[ed] additional information or material that

would be subject to disclosure had it been known at the time of disclosure,” it “promptly”

notified Strang “of the existence of the additional information or material and ma[d]e an

appropriate disclosure.” Section 46-15-327, MCA. In Pierce, the State disclosed six

days before trial a police officer’s report that mistakenly had not been included in the

County law enforcement department’s investigative file. Pierce, ¶ 11. As soon as the

State discovered the report, it provided a copy of it to the defense. Pierce, ¶ 21. Here, as

in Pierce, the State’s immediate disclosure of the bank records once it “became aware of

them” did not violate the State’s discovery obligations. Pierce, ¶ 21.




                                         18
¶41    Further, Strang’s defense was that his care helped Poat stay in his home and that

Poat chose freely to make Strang the recipient of his property and the beneficiary of his

will. Strang did not argue that he did not receive money from Poat’s account. Instead, he

argued that Poat gave money to Strang out of gratitude for Strang’s assistance and that

Strang did not deceive or manipulate Poat into giving him this money. The introduction

of additional checks made out to Strang did not compel Strang to alter his defense at trial.

¶42    Strang has failed to show that any “prejudice resulted” from the State’s late

disclosure of the additional bank records. Golder, ¶ 11. Given that the late disclosure

“was not willful and no prejudice resulted,” we conclude that the District Court did not

abuse its discretion in denying Strang’s motion in limine or his motion for a new trial on

the basis of the State’s late disclosures. Golder, ¶ 11.

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

¶44    Strang alleged in his motion for a new trial that he had been denied a fair trial due

to juror misconduct. He claimed first that a juror and her husband were discussing the

case at a restaurant near the courthouse, and that the husband was heard telling others that

they were at “a trial for a guy who stole an old guy’s money and property.” Strang

alleged that, in a separate incident, another juror was heard telling the Bailiff during the

course of trial, “Next stop . . . the gallows”—an apparent reference to Strang. Strang

claimed that the Bailiff expressed his agreement with the juror’s statement. Strang relied




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on eyewitness affidavits to support these claims of juror misconduct.3 He argued in his

motion for a new trial that these incidents exposed the jurors to “extraneous information”

concerning his guilt and that the jurors involved violated the court’s directive to not

discuss the case with others.

¶45    Strang argues on appeal that these jurors’ acts of misconduct entitle him to a new

trial. Strang explains that the alleged juror misconduct, “[w]hile perhaps not sufficient in

its own right to support a new trial,” was sufficient to warrant a new trial “when

combined with the other bases raised” in the motion.

¶46    A District Court may grant the defendant a new trial “if required in the interest of

justice” and “if justified by law and the weight of the evidence.” Section 46-16-702,

MCA. A defendant may assert juror misconduct as a basis for a new trial. See, e.g., State

v. Cooksey, 2012 MT 226, ¶¶ 8-11, 366 Mont. 346, 286 P.3d 1174; State v. Dunfee,

2005 MT 147, ¶¶ 13-18, 327 Mont. 335, 114 P.3d 217; § 25-11-102(2), MCA (stating

that, in the context of civil procedure, “misconduct of the jury” constitutes a ground for a

new trial). “Juror misconduct based on extraneous communications must be reviewed on

a case-by-case basis, and in the context of the entire record. The trial court is uniquely

qualified to appraise whether extraneous information resulted in prejudice, and we accord

substantial weight to that determination.” MacGregor, ¶ 19. Although a juror’s exposure

to extraneous information creates a rebuttable presumption of prejudice, this



3
   Strang also alleged in his motion that the juror’s husband who commented on the trial at the
restaurant was seen conversing with the judge and other jurors throughout the trial. Strang
presented no evidence in support of this allegation.


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“presumption is not absolute, and arises only when the information shows a natural

tendency to prejudice.” MacGregor, ¶ 20.

¶47    As the District Court noted in denying Strang’s motion for a new trial, the juror

whose husband made the remarks in the restaurant was an alternate juror who did not

participate in the jury’s deliberations. She did not comment at the restaurant on the trial

or respond to her husband’s remarks.         Even if the alternate juror was exposed to

extraneous information, the District Court was “uniquely qualified to appraise whether

[that] extraneous information resulted in prejudice.” MacGregor, ¶ 19.

¶48    As to the other juror’s alleged statement to the Bailiff, Strang presented no

evidence that the Bailiff expressed his agreement with the comment.           The witness

affidavit describing the incident said nothing of the Bailiff’s reaction.      The Bailiff

submitted an affidavit disavowing any knowledge of the juror’s alleged comment. The

court reasonably determined that the juror was not exposed to extraneous information and

that the juror’s lone comment did not have “a natural tendency to prejudice.”

MacGregor, ¶ 20.    We therefore conclude that the District Court did not abuse its

discretion in denying Strang’s motion for a new trial as it pertained to the alleged juror

misconduct. See MacGregor, ¶ 15.

                                    CONCLUSION

¶49    Strang’s disqualification claim was untimely, and he failed to establish a valid

claim of bias or prejudice.     The District Court did not abuse its discretion in its

evidentiary rulings or in denying Strang’s motion for a new trial. The judgment is

affirmed.


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                            /S/ BETH BAKER


We Concur:

/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ JIM RICE




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