NO. 83-375
I N THE SUPREME C U T OF T E STATE O M N A A
O R H F OTN
1984
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS .
L R Y G . BROWN,
AR
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Cascade
Honorable H . William Coder, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Robert M. Kampfer a r a u e d , G r e a t F a l l s Montana
For Respondent :
Honorable 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 o e R. R o b e r t s , A s s i s t a n t A t t o r n e y G e n e r a l , a r q u e d ,
Helena, Montana
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
Submitted. A p r i l 1 6 , 1984
Decided: May 8 , 1 9 8 4
Filed: ~ f - 8i 1984
~
Clerk
M r . J u s t i c e Frank B. Morrison, Jr. d e l i v e r e d t h e Opinion o f
t h e Court.
Defendant L a r r y G. Brown appeals t h e judgment of the
E i g h t h J u d i c i a l D i s t r i c t Court (Cascade County) e n t e r e d upon
a j u r y v e r d i c t f i n d i n g him g u i l t y o f c r i m i n a l m i s c h i e f .
Defendant and P a t r i c i a Brown d i v o r c e d i n F e b r u a r y 1981,
but t h e c o n f l i c t s causing t h e divorce continued. O October
n
21, 1982 around 1 0 p.m., P a t r i c i a Brown went t o t h e Shamrock
Bar t o v i s i t A l l e n Bapp, whom s h e had been d a t i n g . Sometime
a f t e r 11 p.m., e y e w i t n e s s E l e a n o r Schwartz came i n t o t h e b a r
and t o l d A l l e n Bapp t h a t h i s t i r e s had been s l a s h e d . Both
Ba-pp and P a t r i c i a Brown went out and found t h a t all four
t i r e s on b o t h c a r s were s l a s h e d .
E l e a n o r Schwartz t e s t i f i e d t h a t a s s h e d r o v e up t o t h e
f r o n t o f t h e b a r , s h e saw someone moving from t i r e t o t i r e on
Bapp's c a r . She d i d n o t r e c o g n i z e t h e p e r s o n , b u t t e s t i f i e d
that he was clean shaven w i t h short hair, and w e a r i n g a
j a c k e t , c a p , j e a n s and s n e a k e r s .
Several days later, a detective of Cascade County
S h e r i f f ' s o f f i c e p r e s e n t e d a photogra.phic l i n e u p t o E l e a n o r
Schwartz. After narrowing down to two photographs, she
p i c k e d a photograph o f d e f e n d a n t a s t h e p e r s o n s h e had s e e n
slashing the tires of Bapp's car at the Shamrock Bar on
October 2 1 .
At the trial, P a t r i c i a Brown testified that from t h e
time of her divorce from defendant to the night of the
o f f e n s e , a t o t a l o f 36 t i r e s were s l a s h e d on h e r c a r . While
d e f e n d a n t was i n c a r c e r a t e d , no t i r e s were s l a s h e d . She a l s o
t e s t i f i e d t h a t on one o c c a s i o n , s h e a c t u a l l y saw d e f e n d a n t
slash her tires. Additionally, Bapp and a n o t h e r man whom
P a t r i c i a Brown d a t e d t e s t i f i e d t h e y e a c h had t i r e s s l a s h e d
d u r i n g t h e t i m e t h e y d a t e d P a t r i c i a Brown.
Defendant's son t e s t i f i e d t h a t he witnessed h i s f a t h e r
s l a s h P a t r i c i a Brown's t i r e s o n a t l e a s t one o c c a s i o n . On
the evening of the alleged offense, October 21, the son
t e s t i f i e d t h a t h i s f a t h e r d i s p l a y e d a Buck k n i f e and s a i d h e
m i g h t c u t P a t r i c i a Brown's t i r e s a g a i n .
Defendant's stepdaughter Theresa Brown testified that
when d e f e n d a n t came t o h e r a p a r t m e n t on O c t o b e r 2 1 , h e was
d r u n k and a n g r y , and c l a i m e d h e would s l a s h t h e t i r e s a g a i n
i f h e wanted.
Defendant p r e s e n t e d an a l i b i defense. Defendant claimed
h e was a t h i s s t e p d a u g h t e r ' s a p a r t m e n t u n t i l 11 o ' c l o c k . This
was c o r r o b o r a t e d by T h e r e s a Brown and h e r b o y f r i e n d . Other
w i t n e s s e s t e s t i f i e d t h e y were a t a p a r t y w i t h d e f e n d a n t l a t e r
that night.
A c o m p l a i n t was f i l e d on O c t o b e r 2 7 , 1982. Defendant
was a r r e s t e d t h e n e x t d a y and remained i n c u s t o d y u n t i l t h e
d a t e o f h i s t r i a l , 182 d a y s l a t e r .
On March 1, 1983 d e f e n d a n t made a m o t i o n i n l i m i n e t o
p r e v e n t t h e S t a t e from i n t r o d u c i n g e v i d e n c e o f any s u s p e c t e d
p r i o r course of conduct. The t r i a l c o u r t a p p a r e n t l y n e v e r
r u l e d on t h e m o t i o n i n l i m i n e . However, a n omnibus h e a r i n g
was held March 22, 1983, at which time the trial court
o r d e r e d a t e n - d a y n o t i c e t o d e f e n d a n t i f t h e S t a t e p l a n n e d on
p r e s e n t i n g evidence of o t h e r o f f e n s e s o r a c t s . D e f e n d a n t was
n o t given such n o t i c e .
The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l :
1. Whether i t was p r e j u d i c i a l e r r o r t o a l l o w t e s t i m o n y
of other wrongful or criminal conduct without sufficient
notice to the defense or explanation to the jury where
d e f e n d a n t made no o b j e c t i o n a t t r i a l .
2. Whether it was prejudicial error to refuse to
instruct the jury on eyewitness identification where alibi is
the raised defense.
3. Whether the defendant was denied a fair trial by an
impartial jury because of an unrelated social conversation
between a witness a-nd a juror.
4. Whether defendant was denied a speedy trial.
5. Whether it was prejudicial error not to allow the
testimony of a witness.
We will first address the speedy trial issue. A delay
of 182 days is sufficient to trigger an inquiry into the
right to a speedy trial. State v. Fife (Mont. 1981), 632 P.2d
712, 38 St.Rep. 1334.
Defendant a.rgues that the 56 days consumed by motions to
set trial date and for continuance, made by stand-by counsel
while defendant wa.s proceeding pro se, are not chargeable to
the defendant. We disagree. Defendant will not be allowed
to gain advantage by jockeying between use and non-use of
defense counsel. We find counsel's actions were part of, if
not essential to the defense. The motions of counsel for the
defense, whether lead counsel or stand-by, are properly
attributable to the defendant.
Although the remaining 126-day delay is troublesome, we
find the prosecution was reasonably diligent in pursuing this
matter. Nor was preparation of the defense hindered. We hold
this delay to be within the permissible limits set by this
Court pursuant to Barker v. Wingo (1972), 407 U.S. 514; Cf.
State v. Nelson (1978), 178 Mont. 280, 583 P.2d 435; State v.
Kelly (Mont. 1983), 661 P.2d 26, 40 St.Rep. 364.
Defendant challenges the admission of evidence of prior
conduct without notice to the defense. This Court has
clearly stated the procedural requirements for introducing
evidence of other criminal or wrongful conduct in State v.
Just (1979), 184 Mont. 262, 602 P.2d 957:
"(a) Evidence of other crimes may not be received
unless there has been notice to the defendant that
such evidence is to be introduced. The procedures
set forth in section 46-18-503, MCA should serve as
guidelines for the form and content of such notice.
Additionally, the notice to the defendant shall
include a statement as to the purposes for which
such evidence is to be admitted.
'I (b) At the time of the introduction of such
evidence, the trial court shall explain to the jury
the purpose of such evidence and shall admonish it
to weigh the evidence only for such purposes.
"(c) In its final charge, the court should
instruct the jury in unequivocal terms that such
evidence was received. only for the limited purposes
earlier stated and that the defendant is not being
tried and may not be convicted for any offense
except that charged, warning them that to convict
for other offenses may result in unjust double
punishment."
- at 274.
Id.
The defendant never received the required notice. Nor
did the trial court explain to the jury the limited purpose
of the prior testimony when it was introduced.
The State concedes these procedural errors but argues
that defendant is precluded from raising this issue on appeal
because no objection was made at trial. We disagree.
A district court will not be put in error where it was
not given an opportunity to correct itself. State v. Patton
(1979), 183 Mont. 417, 600 P.2d 194; State v. Walker (1966),
148 Mont. 216, 223, 419 P.2d 300, 304. However, in this ca-se
the admissibility of the prior conduct testimony was objected
to prior to trial. On March 1, 1983, defendant filed with
the court a Motion In Limine to exclude such evidence.
Though the court did not rule directly on that motion, on
March 22, 1983 the court ordered:
I1V. The State will offer evidence of other
offenses - -
or acts under Rule 404(b), M.R.E. If
notice has not been qiven, it will be qiven in
writing 10 days before trial. "
We hold defendant's allegations of procedural error are
preserved by virtue of his Motion In Limine and the trial
court's order.
The State also argues that the error is not prejudicial
because defendant was in fact aware that the state intended
to offer testimony of prior conduct. The prejudice is found
in the fact that defendant did not know exactly what acts or
crimes he would have to be prepared to defend against at
trial, nor did he know the form of such testimony. Had
defendant received proper notice, he would have had the
opportunity, prior to trial, to evaluate and to move to
exclude that portion of such evidence that should not have
been admitted. By his Motion In Limine, defendant took
sufficient a.ction to settle these issues prior to trial. He
was entitled to rely on the court's order that notice must be
given.
Since this case is remanded for retrial, it is not
necessary to address the remaining issues. The case is
reversed and remanded to the District Court.
We concur:
"a,.edlpe4,
Chief Justi e
L
Justices