State v. Lyndi L. Wills , 2012 MT 279N ( 2012 )

December 4 2012
DA 11-0724
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 279N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LYNDI LAMB WILLS,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Broadwater, Cause No. DC 10-16
Honorable James P. Reynolds, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Herman A. Watson, III; Attorney at Law, Bozeman, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Karla Bosse, Broadwater County Attorney, Townsend, Montana
Submitted on Briefs: October 30, 2012
Decided: December 4, 2012
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), 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
Montana Reports.
¶2 Lyndi Lamb Wills (Wills) appeals her conviction of felony assault with a weapon
in the First Judicial District Court, Broadwater County. We affirm.
¶3 Wills argues, for the first time on appeal, that she was improperly charged because
the State did not file an affidavit of probable cause as required by § 46-11-201, MCA,
before it was granted leave to file the charging information against her. Wills failed to
object to the lack of an affidavit at the District Court and thus did not preserve her
argument for appeal. Accordingly, Wills asks us to review her case for plain error.
¶4 As a general rule, this Court will not consider issues that were not properly
preserved for appeal. State v. Norman, 2010 MT 253, ¶ 16, 358 Mont. 252, 244 P.3d
737. We have the inherent power to review cases that implicate fundamental
constitutional rights for plain error. We will only exercise plain error review, however, if
failing to do so may result in a manifest miscarriage of justice, compromise the integrity
of the judicial process, or call the fundamental fairness of the proceedings into question.
State v. Main, 2011 MT 123, ¶ 53, 360 Mont. 470, 255 P.3d 1240 (citations omitted).
This is not one of those cases.
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¶5 In Montana, a prosecutor can commence proceedings against a named defendant
by filing a charging information. Section 46-11-201, MCA. Before filing the
information, the prosecutor must first obtain leave from the district court. Section 46-11-
201, MCA. The application submitted to the district court “must be by affidavit
supported by evidence that the judge . . . may require.” Section 46-11-201(2), MCA.
The district court will only grant leave to file the information if it finds probable cause
that the offense has been committed in sworn testimony supporting the application.
Section 46-11-201(2), MCA.
¶6 Here, the prosecutor applied to file an information against Wills but did not file an
affidavit to establish probable cause. Rather, the District Court held a proceeding on the
application during which Captain Wynn Meehan of the Broadwater County Sheriff’s
Department testified under oath. The court found that there was probable cause to charge
Wills based on Captain Meehan’s testimony and granted leave to file the information.
¶7 Wills argues that it was plain error for the District Court to grant leave to file the
information against her because the sworn testimony supporting probable cause was not
reduced to a written affidavit. Wills contends that a written affidavit is required for leave
to file an information so that the defense can be informed of and challenge the alleged
facts establishing probable cause. We have previously held, however, that although an
application to file an information may be supported by affidavits alone, the practice of
presenting witness testimony at a court proceeding is not only allowed, but that it should
be encouraged. State ex rel. Brackman v. Dist. Ct., 172 Mont. 24, 30, 560 P.2d 523, 527
(1977).
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¶8 Montana law requires sworn testimony to support an application to file an
information so that individuals are not charged without probable cause. The manner in
which the district court receives that sworn testimony is less important than the facts that
are sworn to. Wills does not argue that probable cause was lacking, only that the sworn
testimony establishing probable cause was not reduced to a written affidavit. Wills’
argument puts form above substance.
¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. The District Court’s procedure was based upon settled Montana
law and thus is insufficient to warrant plain error review.
¶10 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ JIM RICE
/S/ BRIAN MORRIS
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