No. 13427
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1977
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
ALBERT LaVE, J R .
Defendant and Appellant.
A p p e a l from: D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l
District,
H o n o r a b l e C h a r l e s Luedke, J u d q e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
M i c h a e l J . Whalen a r s u e d , B i l l i n g s , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J . Mayo A s h l e y a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
H e l e n a , Montana
H a r o l d H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
Submitted: S e p t e m b e r 26, 1977
Filed:
T!OV 1 5 T97?
I
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant appeals from his conviction in the District Court,
Yellowstone County, of the offense of robbery and his imprisonment
in the Montana state prison.
On November 12, 1975, defendant Albert LaVe, Jr. allegedly
robbed the Food Bank grocery store, located at the corner of Third
Avenue South and 27th Street, Billings, Montana, of between $800 and
$1,000. No arrest was made at that time. During a murder investi-
gation in Los Angeles, California, in January 1976, defendant was
arrested by Officer Jerry Marvel of the Los Angeles Police Depart-
ment and held on suspicion of murder. Although the Los Angeles
Police Department never charged LaVe with the murder, it was dis-
covered while he was in custody that he was wanted in Montana on a
robbery charge. LaVe was subsequently extradited to Montana to stand
trial.
At LaVe's trial the prosecutor sought to introduce an
"admission" by defendant concerning the robbery in Montana which
defendant allegedly made to Officer Marvel while he was under arrest
in California. During trial the trial judge held a hearing in his
chambers to determine the admissibility of the "admission". At
this hearing Officer Marvel testified that on January 13, 1976, a
woman identifying herself as LaVe's mother telephoned him and asked
him to talk with LaVe about a "deal" LaVe wanted to make concerning
the robbery charge in Montana. In exchange for identifying the
murderer in the Los Angeles case, LaVe wanted the Los Angeles police
to delay returning him to Montana. Marvel testified LaVe's state-
ments to him were:
" * * *'I have some folks in Montanaf--indicating
relatives--[he] said 'They want me for some robberies
up there' and he also said, 'They have me pretty good'
and also that le wanted to stay in the L. A. area or
i
jail as long as he could because he felt he had a
better change of beating the case the longer he
stayed away."
Lave's counsel objected to admitting Marvel's testimony
claiming, among other things, that it would be error to mention
the fact that LaVe was ever suspected of a murder. He informed the
trial judge, however, that if Marvel's testimony was allowed to go
before the jury, he would inquire into the circumstances under which
LaVe was arrested and made the statement to Marvel. He felt those
circumstances were oppressive to LaVe and he claimed they would
have a substantial bearing on the weight the jury should give Marvel's
testimony.
Because of defense counsel's position, the trial judge
initially refused to allow any of Marvel's testimony to go before
the jury. He felt the chances of connecting LaVe with the murder
in Los Angeles, with which he was not charged, were too great. The
prosecution later moved for a reconsideration of the trial judge's
ruling. After assurances from the prosecutor that he would not
associate LaVe with the Los Angeles murder, the trial judge decided
to allow Marvel's testimony.
Lave's counsel then renewed his prior objections to the ad-
mission of Marvel's testimony. In order to avoid interrupting
Marvel while he was on the witness stand, defense counsel requested
continuing objections to all of Marvel's testimony. The trial judge
granted the defense counsel's request.
Marvel's testimony in front of the jury began:
"Q. Your name is Jerry Marvel? A. Yes, it is.
"Q. And you have just finished testifying in
Chambers. A. Yes, sir.
"Q. Mr. Marvel, what is your occupation? A.
Police Officer, City of Los Angeles, California.
"Q. How long have you been a police officer?
A. Approximately five and a half years.
"Q. And that's all been with Los Angeles? A.
Yes, an additional two years in Washington, D.C.
"Q. Okay, thank you. What are your present
duties with the Los Angeles Police Department?
A. Assigned to Holenbeck Investigations, homicide
detail.
"Q. You're a detective then. A. Yes I am."
Marvel then testified that he had at one time spoken with
defendant in the sheriff's office of the Los Angeles county jail.
He went to see defendant in response to a telephone call he received
that LaVe wished to speak with him. Before beginning the conversa-
tion Marvel advised LaVe of his rights. LaVe then made the state-
ments previously quoted. Marvel did not testify, at that time,
who had arrested LaVe or why he had been arrested.
On cross-examination LaVe's counsel developed the circumstances
surrounding LaVe's arrest and his later conversation with Marvel.
Marvel testified it was his partner and he who had arrested LaVe
when he knocked at the door of a certain apartment in Los Angeles.
Marvel and his partner had already arrested two other men when LaVe
came to the door. A service revolver was put into LaVe's face and
he was told to "freeze".
LaVe's counsel also attempted to discredit Marvel's testimony
concerning defendant's admission about the Montana robbery charge
by showing that Marvel was dissatisfied with LaVe's testimony in
a separate preliminary hearing in Los Angeles, regarding a criminal
charge against a third person. Marvel, however, did not admit that
either he or the Los Angeles Police Department was dissatisfied
with LaVe's testimony.
At the close of Marvel's testimony, defendant moved for a
mistrial on the basis that Marvel's testimony should not have been
allowed before the jury and that Marvel had made statements in the
initial part of his testimony that he was cautioned against making
prior to taking the stand. The trial judge denied defendant's motion.
The jury found defendant guilty of committing the offense
of robbery and the trial judge sentenced him to 20 years at hard
labor in Montana state prison. Defendant appealed.
On appeal defendant raised these issues:
I. Did the District Court err in denying defendant's motion
for a mistrial?
2. Was Officer Marvel's testimony before the jury prejudi-
cial to defendant, thus denying him his right to a fair trial?
Because the two issues are related, we will discuss them
together.
The decision to declare a mistrial is within the sound dis-
cretion of the trial judge. A motion for mistrial may be granted
when something has occurred which is likely to affect the justice
of the verdict. Curley v. Boston Herald-Traveler Corp., 314 Mass.
31, 49 N.E.2d 445, 446 (1943). The introduction of inadmissible
evidence which results in harmful error to the defendant may be such
an instance.
Generally, evidence of other offenses or of other similar
acts at other times is inadmissible for the purpose of showing the
commission of the particular criminal offense charged. State v.
Taylor, 163 Mont. 106, 120, 515 P.2d 695 (1973). The reason is that
the defendant is entitled to be informed of the offense charged so
that he need prepare his defense only to that particular offense.
Proof of other offenses subjects him to surprise and to a defense
of multiple collateral or unrelated issues. State v. Jensen, 153
Mont. 233, 455 P.2d 631 (1969). This rule applies to evidence of
other offenses regardless of whether defendant was actually charged
with the other offense. See, State v. Tiedemann, 139 Mont. 237,
362 P.2d 529 (1961).
The general rule, however, is subject to several exceptions
when such evidence becomes admissible: (1) When similar acts with
the same prosecuting witness are involved; (2) when similar acts
are not too remote in time; and (3) when evidence of other offenses
tends to establish a common scheme, plan or system, where such
other offenses are similar to, closely connected with and not too
remote from the one charged, and where they are so that the proof
of one tends to establish the other. State v. Taylor, supra; State
V. Jensen, supra.
Once such evidence is introduced, the party who objected to
its introduction generally does not waive his objection to its erro-
neous admission by subsequently introducing evidence to disprove the
matters testified to, to explain them, or to prove facts inconsistent
with them, even though the matter he introduces is of the same kind
or nature. State v. Tiedemann, supra; 89 C.J.S. Trial §66l, p. 507.
After the opposing party's objections are made to the testimony and
overruled, that ruling becomes the law of the case to which the op-
posing party is required to submit. He is obligated to try the case
on this ruling and cannot have the ruling reversed until judgment
is entered and an appeal is made.
The fact that the opposing party conforms to the ruling and
offers testimony on the theory adopted by the trial court does not
indicate a purpose to waive the error. State v. Tiedemann, supra.
/
Evidence showing oc tending to show that defendant committed
another offense is prejudicial where a fair inference from the
evidence is that defendant was guilty of the other crime. State
v. Tiedemann, supra. The test of whether the prejudicial error
requires reversal is this: Is there a reasonable possibility that
the inadmissible evidence might have contributed to the conviction?
State v. Langan, 151 Mont. 558, 568, 445 P.2d 565 (1968).
The ground rules under which the court allowed Marvel's
testimony provided that neither side would bring out evidence asso-
ciating defendant with a murder charge in Los Angeles. The state-
ment which Marvel made on direct examination to which the defendant
objected was that in his beginning testimony, Marvel stated he was
assigned to "homicide detail".
his statement was not prejudicial for two reasons. First,
the statement was made in response to the prosecutor's question
asking Marvel what his present duties with the Los Angeles Police
Department were, not what his duties were at the time he arrested
defendant. That Marvel was presently assigned to homicide detail
does not necessarily mean he was assigned to that same detail at
the time he arrested the defendant some four months earlier.
Second, Marvel did not testify to anything on direct examina-
tion that would have connected defendant to a murder charge. He did
not tell who it was who had arrested defendant or under what circum-
stances defendant was arrested. In explaining how he came to have
a conversation with the defendant, Marvel stated only that he "had
received a telephone call that Mr. Lave wished to speak to me."
It was not until cross-examination by the defense counsel that
Marvel revealed it was he who had arrested defendant and what the
circumstances of that arrest were. Marvel never testified to what
defendant was charged with, nor why he was held.
An examination of the cases cited by defendant reveals that
the alleged error in those cases were statements strongly indicating
the defendants were guilty of other offenses.
In Jensen, the defendant was charged with committing a lewd
and lascivious act on a child under 16 years old. The evidence
sought to be introduced, which was allowed under an exception to
the general rule, was testimony of other patients of the defendant-
doctor that defendant had committed the same acts on them.
In Tiedemann, the defendant was charged with the attempted
rape of a child under 18 years. Defendant's conviction was reversed
because the prosecution testified over the defendant's objection
to an admission which defendant had made to the county attorney
after his arrest indicating he was involved in an earlier rape
incident.
In State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932), the
defendant was charged with burglarizing another's house. Evidence
was introduced showing that the defendant had in his possession an
unusually shaped comb similar to one allegedly taken from the victim
in an earlier burglary. The defendant's conviction was reversed.
Although it is true that Marvel's testimony showed that
his conversation with defendant took place while the defendant was
under arrest and in police custody, none of Marvel's direct examina-
tion indicated why defendant was arrested. The jury may have assumed
he was arrested for the alleged robbery in Montana. None of Marvel's
testimony associated defendant with the murder charge in Los Angeles,
nor was there any indication defendant was arrested on suspicion of
murder.
For these reasons we find Marvel's testimony that he was
presently assigned to homicide detail was not prejudicial to the
defendant. The trial judge was correct in refusing to grant defend-
ant's motion for a mistrial. The defendant was given a fair trial.
A£ £ irmed.
Justice
We Concur: