           IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,

          Plaintiff and Respondent,



BARRON SCOTT MARTIN,

          Defendant and Appellant.



APPEAL FROM:     District Court of the Twelfth Judicial District,
                 In and for the County of Hill,
                 The Honorable John Warner, Judge presiding.


COUNSEL OF RECORD:

          For Appellant:

                 Carl S. White, Attorney at Law, Havre, Montana

          For Respondent:

                 Hon. Joseph P. Mazurek, Attorney General;
                 Patricia J. Jordan, Assistant Attorney General;
                 Helena, Montana

                 David G. Rice, Hill County Attorney; Anders T. Berry,
                 Deputy Hill County Attorney; Havre, Montana


                                                           Submitted on Briefs: May 8, 1997

                                                                      Decided:   June 9 , 1 9 9 7
Filed:
Justice Jim Regnier delivered the opinion of the Court.

        Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

        Barron Scott Martin was charged by information with attempted deliberate homicide

by accountability. Martin moved to exclude the testimony of all witnesses not listed on the

information and all exhibits not listed on a timely exhibit list. The Twelfth Judicial District

Court, Hill County, allowed the witnesses to testify and the exhibits to be introduced into

evidence. Martin was convicted by a jury of the lesser offense of aggravated assault by

accountability. Martin appeals from these two District Court rulings. We affirm.

        The issue on appeal is whether the District Court erred in denying Martin's motion to

exclude the State's witnesses and exhibits on the grounds that the State failed to list its

witnesses and exhibits on the information and failed to timely notify Martin of its witnesses

prior to trial.

                               FACTUALBACKGROUND

        On April 19, 1996, the Deputy County Attorney for Hill County filed a motion for

leave to file an information charging Barron Scott Martin with the felony offense of

attempted deliberate homicide, or in the alternative, felony assault; burglary, or in the
alternative, felony theft; and misdemeanor theft. Later, at the arraignment on April 23,

Martin appeared with his attorney and waived the reading of the information.

       An omnibus hearing was held on May 14, 1996. The District Court and the parties

discussed the whereabouts of the victim, David Azure. At the hearing, the court inquired of

defense counsel whether he needed anything and he replied, "Not that I'm aware of. I've had

access to all the physical evidence, the photographs, and I believe all the reports." The court

then asked whether the defendant wanted to interpose a defense of justifiable use of force.

The defense counsel said "yes," and indicated that he would call witnesses to support that

defense, including, he stated, "All of the State's listed witnesses, the three juvenile

co-defendants, and I believe there's a woman named Stromburg who would be a witness."

The District Court then set a July 5 deadline for both the prosecution and the defense to

identify witnesses by providing each other with a witness list.

       The State failed to file a supplemental witness list on July 5, 1996, as required by the

District Court. On July 11, the State moved to endorse five witnesses, without objection by

the defendant. On July 17, the State moved to endorse one additional witness, again without

objection by the defendant. On July 26, twenty-one days after its witnesses and exhibit list

was due, the State filed and mailed defense counsel a notice of witnesses and exhibits.

Because the notice was mailed on a Friday, it did not arrive in defense counsel's mail until

Monday, July 29, less than twenty-four hours before trial. On July 29, the State filed a
supplemental notice of witnesses and exhibits. That notice was also mailed to defense

counsel who did not receive it until after one fill day of trial.

       A jury trial commenced on July 30, 1996. Following the voir dire and opening

statements, defense counsel requested he be allowed to make a motion outside the presence

of the jury. At that time, he moved to exclude all of the State's witnesses who were not

endorsed on the information. Defense counsel stated he was objecting to each witness not

previously endorsed and every exhibit because he was not notified prior to twenty-four hours

before trial. A witness list was not on the information, as required by 5 46-1 1-401(2), MCA.

The county attorney stated for the record that his copy of the information had the witness list

attached, however, defense counsel said that the witness list was not attached to his. In the

district court file, the witness list did appear with the motion, rather than on the information.

The District Court noted that $46-11-40 1, MCA, requires that an information must include

a list of witnesses, if known, but also states that matters of form which do not prejudice will

not cause an information to be dismissed.

       A discussion was held regarding a continuance. The State conceded that it could not

prove its case without the witnesses and exhibits objected to. The county attorney stated he

would not object to a continuance, pursuant to 5 46-15-329, MCA, to allow defense counsel

to interview the witnesses. However, defense counsel made no request for a continuance.

Over Martin's objection, the District Court determined there would be no prejudice to the

defense and allowed the witnesses to testify and exhibits to be introduced into evidence.
Martin was convicted by the jury of the lesser offense of aggravated assault by

accountability.

                                        DISCUSSION

       Did the District Court err in denying Martin's motion to exclude the State's witnesses

and exhibits on the grounds that the State failed to list its witnesses and exhibits on the

information and failed to timely notify Martin of its witnesses prior to trial?

       Discretionary rulings of a district court include trial administration issues, post-trial

motions, and similar rulings. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860

P.2d 121, 125. This Court reviews a district court's evidentiary rulings to determine whether

there has been an abuse of discretion. Cartwright v. Equitable Life Assurance (1996), 276

Mont. 1, 19,914 P.2d 976,987.

       Martin seeks reversal of his conviction and the dismissal of the information charging

him because of the State's failure to attach a list of witnesses and exhibits on the information,

allegedly without good cause. The State argues that the failure to attach a list of witnesses

and exhibits on the information was inadvertent and that the substantial rights of Martin were

not prejudiced by the State's error.

       Section 46-1 1-401, MCA, provides in relevant part:

       Form of charge. (1) The charge must be in writing and in the name of the
       state or the appropriate municipality and must specify the court in which the
       charge is filed. The charge must be a plain, concise, and definite statement of
       the offense charged, including the name of the offense, whether the offense is
       a misdemeanor or felony, the name of the person charged, and the time and
       place of the offense as definitely as can be determined. The charge must state
       for each count the official or customary citation of the statute, rule, regulation,
       or other provision of law that the defendant is alleged to have violated.
               (2)    If the charge is by information or indictment, it must include
       endorsed on the information or indictment the names of the witnesses for the
       state, if known.

             (6)     A charge may not be dismissed because of a formal defect that
       does not tend to prejudice a substantial right of the defendant.

       Martin argues that the failure of the District Court to exclude the witnesses and

exhibits that he objected to amounted to prejudice against him. Martin asserts that the

number of potential witnesses and exhibits was so great that defense counsel had no

reasonable means of anticipating what witnesses or exhibits might be used during the trial.

Without proper notice, Martin contends, allowing the State to introduce the witnesses and

exhibits objected to resulted in an unfair surprise against him.

       The State counters that if the information was incomplete pursuant to 5 46- 11-401(2),

MCA, Martin should have raised an objection to it at the omnibus hearing on May 14, 1996,

pursuant to   5 46-13-101(2), MCA.    Under    5 46-13-101(1) and (2), MCA, the failure of a
party to raise an objection that could be made at the omnibus hearing constitutes a waiver of

that objection. The State argues that defense counsel waited until the trial to raise the issue

when he believed that jeopardy had attached to constitute reversible error. Finally, the State

concludes that the rights of Martin were not substantially prejudiced by the District Court's

failure to exclude the witnesses and exhibits objected to because Martin knew or should have

reasonably known who the State would call to testify against him.
       If Martin felt prejudiced at trial, both the District Court and the county attorney had

no objection to a continuance. However, defense counsel did not request a continuance and

proceeded with the trial. The District Court observed that the affidavit in support of leave

to file information mentions the witnesses who were participants, as well as the police

officers, that defense counsel for Martin had been provided with all of the statements, and

that the victim had been arrested and was available to the defense. The District Court also

stated that Martin had received actual notice of all the witnesses. Finally, the District Court

determined that Martin would not be prejudiced by allowing the witnesses to testify and the

exhibits to be introduced.

       This Court concludes that the District Court did not abuse its discretion in denying

Martin's motion to exclude all witnesses and exhibits that the State failed to attach on the

information served upon him. In State v. Haag (1978), 176 Mont. 395, 578 P.2d 740, we

were confronted with a similar case where a county attorney failed to include a list of known

witnesses on the information. In Haag, the defendant notified the State at the arraignment

that the information had not included a witness list, but the State failed to produce one until

the day of trial. This Court stated:

       If a county attorney fails to list known witnesses on an Information, we cannot
       say he necessarily lacks good cause to add the witnesses, if he does so
       promptly and in good faith after the omission is brought to his attention. Nor
       do we hold that a defendant who is aware that there are no witnesses listed on
       an Information may remain silent and fail to request a list of witnesses, thereby
       hoping to cultivate reversible error through the county attorney's unnoticed
       inadvertence.
Haag, 176 Mont. at 403, 578 P.2d at 745.

       In this case, however, defense counsel failed to bring the error to the county attorney's

attention. In fact, it appears that defense counsel was "hoping to cultivate reversible error"

by failing to notify the county attorney that a list of witnesses and exhibits was not on the

information. Defense counsel could have notified the county attorney and objected to the

information at the omnibus, but failed to do so. Under     5 46-13-101(2), MCA, a failure to
make this objection constitutes a waiver of the objection.

       We affirm.




We Concur:
                      H
                                          June 9. 1997


                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

CARL S. WHITE
Attorney at Law
412 SECOND AVENUE
HAVRE MT 59501

Hon. Joseph P. Mazurek, Attorney General
Patricia Jordan, Assistant
Justice Building
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Helena MT 59620

ANDERS T. BERRY
DEPUTY HILL COUNTY ATTORNEY
P 0 BOX 500
HAVRE MT 59501-0500


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
