State v. D. Strang , 388 Mont. 428 ( 2017 )


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  •                                                                                                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
    2
    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
    19
    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.
    20
    “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.
    21
    /S/ BETH BAKER
    We Concur:
    /S/ LAURIE McKINNON
    /S/ MICHAEL E WHEAT
    /S/ DIRK M. SANDEFUR
    /S/ JIM RICE
    22