No- 13828
I N THE SUPRME COURT O THE STATE O MONTANA
F F
THE STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
-vs-
KENNETH WENDELL BRADFORD,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
H o n o r a b l e H. W i l l i a m C o d e r , J d u g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
Thomas A. B a i z , J r . a r g u e d , Great F a l l s , Montana
F o r 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
Mike McCarter a r q 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 ,
Helena, Fontana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
Randy Gray a r g u e d , G r e a t F a l l s , Montana
Submitted: J a n u a r y 30, 1978
Decided: FE6 2 2 1978
M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e
Court :
Defendant was charged with t h r e e counts of aggravated
a s s a u l t i n t h e D i s t r i c t Court, Cascade County. Two of t h e
counts were dismissed by t h e D i s t r i c t Court p r i o r t o submission
of t h e c a s e t o t h e jury. The jury found t h e defendant g u i l t y
on t h e remaining count. Following d e n i a l of defendant's motion
f o r a new t r i a l , he appeals t o t h i s Court.
The county a t t o r n e y , i n a s i n g l e Information, charged de-
fendant with t h r e e s e p a r a t e counts of aggravated a s s a u l t involving
use of a s m a l l automatic p i s t o l , i n v i o l a t i o n of s e c t i o n 94-5-202
i
( l ) ( c ) , R.C.M. 1947. The a l l e g e d offenses occurred on November
6 , 1976, a t Calhoun's Saloon i n Black Eagle, Montana. Count I
charged defendant with a s s a u l t i n g Steven K a t s i l a s , t h e b a r t e n d e r ,
i n s i d e ~ a l h o u n ' s . Count I1 charged defendant with a s s a u l t i n g
Devon Ladd, a customer, i n s i d e the saloon, by placing t h e b a r r e l
of t h e p i s t o l a g a i n s t Ladd's r i b s . Count I11 charged defendant
with a s s a u l t i n g Devon Ladd o u t s i d e t h e saloon by f i r i n g t h r e e
s h o t s i n t o Ladd's c a r a s he was d r i v i n g away.
Defendant was t r i e d i n t h e D i s t r i c t Court on March 7 , 1977.
The evidence p e r t a i n i n g t o Count I was d i r e c t evidence. Eye
witnesses, including t h e v i c t i m , described t h e a s s a u l t . Their
testimony was t h a t Steven K a t s i l a s came around t h e b a r t o h e l p
h i s wife, who was on t h e f l o o r and being beaten by s e v e r a l o t h e r
women. When he d i d t h i s , defendant came over t o K a t s i l a s , h i t
him i n t h e f a e e , put a small p i s t o l between h i s eyes and t o l d
him t h a t i f he attempted t o i n t e r f e r e , he would be shot.
A t t h e time of t r i a l , Devon Ladd, t h e v i c t i m of t h e o t h e r
two a s s a u l t s , could n o t be located t o appear and t e s t i f y . With-
o u t h i s testimony, t h e S t a t e introduced no evidence on Count 11.
The State's evidence on Count 111 was circumstantial.
Witnesses who were in the bar that night testified Ladd was in
the bar during the assault on Katsilas and left as it ended.
The testimony indicated defendant followed Ladd out the door of
the bar and within seconds, two witnesses, still inside the bar,
heard three shots. Two witnesses, who had observed Devon Ladd's
car earlier in the evening, testified there were no nicks or
holes on the driver's side of the car. These witnesses and a
sheriff's deputy testified that following the incidents at
Calhoun's three bullet marks were found on the car. The deputy
took photographs of the marks and these photogrqhs were admitted
into evidence. The investigating officers found three .25
caliber shell casings in the parking lot and they were admitted
into evidence. Witnesses testified that when Ladd returned to
the bar with the police, approximately ten minutes after leaving,
he appeared shaken, flushed, and his hair was messed up. Tom
Whitehead, Calhoun's swamper, testified that he was just regaining
consciousness after being knocked out when Ladd re-entered the
bar with the police and, as he came in, Ladd told him that someone
had shot at his car. Defendant's objections to the introduction
of the photographs and shell casings into evidence and to White-
head's testimony concerning Ladd's statement to him were all
overruled.
~efendant'sobjection to the admission of Whitehead's
testimony on Ladd's statement was that the statement was hearsay.
The District Court admitted the testimony as falling within the
res gestae exception to the hearsay rule. Defendant objected
to the admission of the photographs and shell casings, arguing
there was a lack of proper foundation for their admission. He
f u r t h e r argued t h a t t h i s physical evidence was inadmissible under
s e c t i o n 93-1301-7(32), R.C.M. 1947, which he claims s t a t e s t h a t
a t h i n g once shown t o e x i s t r e l a t e s forward b u t n o t backward
i n time.
A t t h e c l o s e of t h e s t a t e ' s case-in-chief, defendant moved
f o r a m i s t r i a l , which was denied. He then moved t h a t a l l counts
be dismissed. Defendant argued t h a t t h e s t a t e , on Counts I1 and
1 1 f a i l e d t o prove reasonable apprehension of s e r i o u s b o d i l y
1 ,
i n j u r y on t h e p a r t of t h e v i c t i m , Devon Ladd, an element of t h e
crimes charged. Regarding Count I , defendant argued t h e s t a t e
f a i l e d t o prove i t s c a s e beyond a reasonable doubt. The D i s t r i c t
Court, a f t e r hearing t h e arguments of counse1,dismissed Counts I1
and 1 1 on t h e grounds t h e r e was i n s u f f i c i e n t evidence t o prove
1
reasonable apprehension of s e r i o u s bodily i n j u r y on t h e p a r t of
Ladd . Defendant then r e s ted .
Count I was submitted t o t h e jury. The jury was admonished
t o d i s r e g a r d t h e photographs and s h e l l casings (which r e l a t e d
only t o Count I I I ) , a s though they were never admitted i n t o
evidence. The jury found defendant g u i l t y of aggravated a s s a u l t
on Count I .
A f t e r t h e v e r d i c t was e n t e r e d , defendant moved f o r a
directed verdict, i.e. judgment notwithstanding the v e r d i c t ,
on t h e ground t h a t t h e jury v e r d i c t w a s c o n t r a r y t o t h e weight
of evidence. I n t h e a l t e r n a t i v e , defendant moved f o r a m i s t r i a l
on t h e grounds t h a t t h e physical evidence and testimony admitted
under Count 1 1 w e r e highly p r e j u d i c i a l and misled t h e j u r y on
1
Count I. These motions were denied. Defendant then f i l e d a motion
f o r a new t r i a l , which was argued on A p r i l 7 , 1977. The motion
was denied.
On A p r i l 8, 1977, t h e c o u r t imposed sentence on
defendant of t h r e e years imprisonment, with a l l but s i x months
suspended. Defenaant was ordered t o serve t h e s i x months i n
t h e Cascade County j a i l , with c r e d i t f o r time already served.
Execution of t h e sentence has been stayed pending t h i s appeal.
The s o l e i s s u e on appeal i s whether t h e s t a t e ' s f a i l u r e
t o dismiss Counts I1 and 1 1 p r i o r t o t h e beginning of t h e t r i a l ,
1
when they knew Devon Ladd, t h e v i c t i m , would n o t be p r e s e n t t o
t e s t i f y , denied defendant a f a i r t r i a l .
Defendant' s contention i s t h a t t h e evidence which was
admitted on Count I11 misled t h e j u r y on Count I. H e argues
t h a t when t h e prosecution knew Devon Ladd would n o t be p r e s e n t
a t t h e t r i a l , i t should have dismissed Counts I1 and 111.
According t o defendant i t s f a i l u r e t o do so was p r e j u d i c i a l
error. F i n a l l y he argues t h a t c e r t a i n evidence on Count I11
was inadmissible.
The r u l e a p p l i c a b l e i s t h a t b e f o r e a judgment i n a
c r i m i n a l case w i l l be reversed, p r e j u d i c e must be shown. State
v. T o t t e r d e l l , (1959), 135 Mont. 56, 336 P.2d 696; S t a t e v.
Hay, (1948), 120 Mont. 573, 194 P.2d 232. Prejudice i n a
c r i m i n a l c a s e w i l l n o t be presumed, b u t r a t h e r must appear from
t h e d e n i a l o r invasion of a s u b s t a n t i a l r i g h t from which t h e
law implies prejudice. The defendant must demonstrate p r e j u d i c e
from t h e record. S t a t e v. Schleining, (1965), 146 Mont. 1, 403
P.2d 625.
The defendant i n a criminal case has t h e r i g h t t o a f a i r
trial. I t i s axiomatic t h a t p r e j u d i c e can be implied from the
d e n i a l o r invasion of t h a t r i g h t . However, t h e defendant must
show t h a t h i s r i g h t t o a f a i r t r i a l was denied o r invaded.
W hold, i n t h e i n s t a n t c a s e , t h a t defendant's r i g h t t o
e
a f a i r t r i a l was n e i t h e r denied nor invaded. Defendant has
n o t convinced us t h e s t a t e ' s f a i l u r e t o dismiss Counts I1 and
I11 p r i o r t o t r i a l prejudiced him on Count I.
W might agree with defendant t h a t t h e prosecution should
e
have dismissed Count I1 when they knew t h a t Devon Ladd would
n o t be a t t h e t r i a l , however, s i n c e no evidence was introduced
on t h i s count, we f a i l t o s e e how defendant was prejudiced by
t h e s t a t e ' s f a i l u r e t o dismiss p r i o r t o t r i a l .
W b e l i e v e t h a t t h e evidence admitted on Count 1 1 could
e 1
n o t have misled t h e j u r y on Count I. The a l l e g e d a s s a u l t i n
Count I occurred i n s i d e t h e b a r , with t h e bartender a s t h e
v i c t i m ; t h e a l l e g e d a s s a u l t i n Count 1 1 occurred o u t s i d e t h e
1
b a r with Devon Ladd a s t h e victim. Thus, t h e evidence on each
of t h e s e counts was d i s t i n c t and independent of t h e o t h e r .
The jury could e a s i l y keep t h e i n c i d e n t s and t h e evidence s e p a r a t e .
Furthermore, t h e s t a t e had a r i g h t t o attempt t o prove
Count 1 1 by c i r c u m s t a n t i a l evidence.
1 This Court has h e l d
t h a t whatever may be e s t a b l i s h e d by d i r e c t evidence i n a c r i m i n a l
case may a l s o be e s t a b l i s h e d by c i r c u m s t a n t i a l evidence. State
v. Cor, (1964), 144 Mont. 323, 396 P.2d 86. The photographs,
s h e l l c a s i n g s , and testimony of Whitehead a s t o Ladd's statement
a r e c i r c u m s t a n t i a l evidence.
Defendant argues t h a t , even i f c i r c u m s t a n t i a l evidence can
be used i n a criminal c a s e , t h i s evidence was inadmissible and,
therefore, prejudicial. The v i t a l i t y of t h i s contention i s l o s t
i n our holding t h a t t h e evidence was admissible.
Circumstantial evidence, to be admissible, must be relevant,
competent and material. State v. Fitzpatrick, (1973), 163 Mont.
220, 516 P.2d 605. The evidence the state offered and had
admitted on Count I11 was relevant, material and competent as to
that count.
Whitehead's testimony about Ladd's statement to him was
admissible under the res gestae exception to the hearsay rule.
State v. Medicine Bull, Jr., (1968), 152 Mont. 34, 445 P.2d 916.
The photographs of Ladd's car and shell casings were also
admissible. Defendant's reliance on section 93-1301-7(32),
R.C.M. 1947, as construed in Doran v. United States Building and
Loan Assn., (1933), 94 Mont. 73, 20 P.2d 835, is misplaced.
That statute and case deal with disputable presumptions. Here,
we are dealing with circumstantial evidence tending to prove that
an assault was committed upon Devon Ladd.
The admission of the evidence relating to Count 111 did
not prejudice defendant on Count I even though Count I11 was
subsequently dismissed. The court instructed the jury to
disregard this evidence, which we believe sufficient under the
facts of this case. An error in the admission of evidence can
sometimes be cured by an admonition to disregard the evidence.
Brown v. United States, (1967), 380 F.2d 477, cert. den. 390 U.S.
962, 88 S.Ct. 1062, 19 L ed 2d 1158. The striking of erroneously
admitted evidence and admd.shing the jury to disregard it
serves to cure the error. United States v. Rojas, (1976), 537
F.2d 216. Such is the case here.
The judgment of conviction is affirmed.
Justice
We Concur:
-
Justices.