Submitted on Briefs: August 14, 2019
FROM District Court of the Nineteenth Judicial District, In
and For the County of Lincoln, Cause No. DC 16-94 Honorable
Matthew Cuffe, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Gregory Hood,
Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana
Boris, Lincoln County Attorney, Libby, Montana
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Robert Gene Clift (Clift) appeals from the Order denying his
motion to sever issued by the Nineteenth Judicial District
Court, Lincoln County, on January 24, 2017. We affirm.
Clift was originally charged with two felony
offenses-Aggravated Assault and Unlawful Restraint.
Approximately three months later, the State added a third
felony charge-Tampering with Witnesses and Informants. Clift
sought to sever the Tampering charge from the offenses
originally charged, arguing that trying the charges together
prejudiced him by violating his right to testify. The
District Court denied the motion based on State v.
Bingman, 229 Mont. 101, 745 P.2d 342 (1987), resulting
in this appeal.
We review a district court's denial of a motion to sever
for an abuse of discretion. State v. Kirk, 2011 MT
314, ¶ 10, 363 Mont. 102, 266 P.3d 1262. "An abuse
of discretion occurs when a district court acts arbitrarily
without conscientious judgment or exceeds the bounds of
reason." State v. Essig, 2009 MT 340, ¶
14, 353 Mont. 99, 218 P.3d 838.
Here, Clift asserts he suffered prejudice as he wished to
testify on the Tampering charge but wished to remain silent
on the other two charges. Clift asserts the failure to sever
foreclosed his option to testify as to the Tampering offense
"by exposing him to the risk that waiving his silence
could compel him to answer State questioning on the other two
charges." The State contends Clift made only a general
assertion that his right against self-incrimination would be
implicated, but failed to prove how he was unfairly
prejudiced. The State argues, pursuant to State v.
Riggs, 2005 MT 124, ¶ 34, 327 Mont. 196, 113 P.3d
281, it is insufficient for Clift to prove he faced some
prejudice or stood a better chance of acquittal with separate
charges, but rather he has the burden to prove that not
severing the charges resulted in unfair prejudice to
him-which he failed to do.
Although the State also asserts this Court has previously
held that a witness tampering charge is properly joined with
the charges from which it flowed, such is an overbroad
interpretation of Bingman. Our holding in
Bingman required balancing prejudice to the
defendant with judicial economy regardless of whether the
subsequent charge flowed from the original charges.
"Determining whether there has been prejudicial joinder
involves weighing the prejudice incurred by the defendant
because of a joint trial against the judicial economy
resulting from a joint trial. This balancing process is left
to the sound discretion of the trial judge. Absent a showing
of abuse of that discretion, an appellate court should not
substitute its judgment for that of the trial court."
Bingman, 229 Mont. at 110 (quoting State v.
Campbell, 189 Mont 107, 120-21, 615 P.2d 190, 198
From our review of the record, the District Court did not
abuse its discretion in denying Clift's motion to sever.
Clift asserts that joinder of the charges "foreclosed
[his] option to testify in the Tampering by exposing
him to the risk that waiving his silence could
compel him to answer State questioning on the other two
charges" (emphasis added). He does not elaborate as to
how his testimony would have resulted in a different outcome
or how he could not have presented his defense through other
witnesses, such as his father. As recognized by Clift, he
could have testified limiting the scope of his direct only to
the alleged Tampering offense, potentially limiting the scope
of cross-examination. He did not testify. Perhaps had he
testified he may have been able to establish the prejudice he
asserts would have occurred-inappropriate cross-examination
with regard to the other charges.
While the District Court could have more thoroughly
articulated its balancing pursuant to Bingman; on
the record before us, we agree Clift has not distinguished
his situation from that of any other defendant properly
charged with multiple counts or identified any prejudice
which prevented him a fair ...