State v. Pease

No. 84-540

I N THE SUPREME COURT O F THE STATE OF MONTANA

1986

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-
BERNARD P E A S E , J R . ,

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 C o u r t of t h e T h i r t e e n 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 C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e D i a n e G. B a r z , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

G a r y E . Wilcox argued, B i l l i n g s , M o n t a n a

For R e s p o n d e n t :

H o n . 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 , M o n t a n a
P a t r i c i a J . Schaeffer argued, A s s t . A t t y . G e n e r a l
H a r o l d F. H a n s e r , C o u n t y A t t o r n e y , B i l l i n g s , M o n t a n a
C h a r l e s A. B r a d l e y , D e p u t y C o u n t y A t t y . , B i l l i n g s

Submitted: ,-;May 3 1 , 1 9 8 6

Decided: A u g u s t 8, 1986

Filed:
AUG F - 1986

Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

The defendant, Bernard Pease, Jr ., appeals from the
judgment and jury verdict finding him guilty of deliberate
homicide and the denial of his motion for a new trial in the
Yellowstone County District Court. He raises five issues on
appeal: (1) Whether admitting a prior inconsistent statement
of one person through the testimony of a second person was
error; (2) whether probable cause existed to issue a search
warrant for the residence and vehicles of the defendant and
his family; (3) whether certain items of evidence and
testimony were inadmissible character evidence; (4) whether
the District Court erroneously replaced a juror during trial
who had admitted to and would be charged with a felony; and

(5) whether the State's closing argument violated the
defendant's rights to due process and a fair trial. We
affirm the jury verdict and judgment thereon and the denial
of defendant's motion for a new trial.
At 7:30 a.m. on Thursday, December 1, 1983, Jeffrey
Miller discovered the victim's body on his way to work. It
was lying in the snow near two garbage dumpsters in an alley
between North 12th and North 13th Streets in Billings,
Montana. Mr. Miller asked his employer to call the police
and officers and detectives arrived within ten minutes.
The young Indian woman's body was nude, frozen and
almost completely exsanguinated. The officers found very
little blood at the scene. The victim had been stabbed
repeatedly in the chest and her throat was cut. The slipped
skin on her ankles and drag marks in the snow suggested the
body had been dragged by the legs to the location near the
dumpsters. There were footprints near the body and many tire
tracks in the alley. There was a strand of orange yarn in
the victim's hair. Frozen ridges on her abdomen, which
appeared to be from some kind of wrinkled material,
disappeared as the body thawed. Her left foot appeared to be
further decomposed than the rest of the body. The detectives
later made a plaster cast of the decomposed foot to preserve
the pattern of ridges and dents on the foot. According to
the pathologist, Dr. Mueller, the victim had been dead from
five to ten days when she was found, with the middle time
most probable. This suggested a time of death in the early
morning of November 24, 1983. During an autopsy, Dr. Mueller
collected blood samples, head and pubic hairs, and fingernail
scrapings from the victim.
The police identified the victim as Marie
LaFromboise/Philbrick, a 23 year old woman who sometimes
worked as a prostitute in Billings. She lived with two
roommates, John Salas and Brenda Cunningham. Both last saw
her Thanksgiving morning, November 24, 1983. Salas saw her
walking in downtown Billings around 3:00 a.m. and Cunningham
saw her about 3: 30 a.m. talking to a man in a yellow pickup.
The defendant drove a yellow and white pickup.
On one side of the alley where the body was found was a
large quonset hut style building. The defendant worked at
the Fireplace Store, owned and operated by the Pease family,
which was in that building. An elderly man named Jim Andrews
lived in a house trailer near the Pease business, about 50
yards from the dumpsters. About 3:30 or 4:00 a.m., the
morning the body was found, his dog began barking. As he
opened his door to let the dog out, he heard the lids
clanging over the dumpsters. When he shouted in the
direction of the dumpsters, the clanging stopped.
On January 5, 1984, the owner of an automotive
electrical shop, located about two blocks away from the Pease
business, found a sleeping bag and some jute carpet backing
behind a fence alongside his building. He saw that the
sleeping bag had "a lot of blood on it" so he called the
police. When the officers arrived, they collected the
sleeping bag and carpet backing and found orange carpet
fibers similar to those in the victim's hair. They also
found bottles, pieces of brick, and a plum bob and observed
holes in the sleeping bag.
Later that afternoon, the officers went to the nearby
Pease masonry business seeking information about the pieces
of brick. They found similar brick in the office and in the
outside yard. The next day, they returned and received
signed permission from Bernard Pease, Sr., the defendant's
father, to search the premises for evidence in the homicide.
The search soon revealed orange shag carpet similar to
the strands found in the victim's hair and a large piece of
jute carpet backing with a section cut out. This piece
matched that found with the bloody sleeping bag in fiber,
weave, size and type of cut. When the officers searched the
wash bay area in the rear of the Pease business, they found
white cardboard boxes with blood on them, blood on the floor,
a bloody paper napkin stuck to part of a box, hair, a
pornographic magazine depicting violence toward women, more
orange carpet strands, a large piece of orange carpet, and
used and unused condoms. The defendant was one of only four
people who had access to this part of the building; the
o t h e r s were h i s p a r e n t s and an u n c l e . Along one w a l l n e a r

t h e f l o o r i n t h e wash bay a r e a t h e r e w e r e s e v e r a l h e a t p i p e s

which had t h e d u s t rubbed o f f i n s m a l l a r e a s . The c l e a n e d

a r e a s matched t h e bumps and l i n e s i n t h e v i c t i m ' s l e f t f o o t .

According t o t h e p a t h o l o g i s t , h o t , d r y h e a t c o u l d have c a u s e d

t h e f o o t t o d e h y d r a t e and decompose f a s t e r t h a n t h e r e s t o f

t h e body.

When t h e p o l i c e c a p t a i n r e a l i z e d t h e wash bay was t h e

crime site, he decided to take statements from t h e P e a s e

family. The d e f e n d a n t walked o u t s o t h e c a p t a i n f o l l o w e d him

and asked him t o come back.

O t h e b a s i s o f t h e e v i d e n c e found d u r i n g t h i s s e a r c h ,
n

t h e o f f i c e r s o b t a i n e d s e a r c h w a r r a n t s f o r t h e Pease r e s i d e n c e

i n B i l l i n g s , f o r a t r a i l e r t h e y owned i n F o r t Smith, Montana,

and f o r a n o t h e r s e a r c h o f t h e b u s i n e s s . In t h e defendant's

room at the residence the police found used and unused

condoms like those found at the scene of the homicide,

p o r n o g r a p h i c magazines f e a t u r i n g female bondage and women's

p a n t i e s s a t u r a t e d w i t h m u l t i p l e semen d e p o s i t s . The y e l l o w

p i c k u p b e l o n g i n g t o t h e P e a s e b u s i n e s s and g e n e r a l l y d r i v e n

by d e f e n d a n t had i n i t a f l o w e r e d y e l l o w s h e e t s t a i n e d w i t h

what a p p e a r e d t o be b l o o d . In the car registered t o the

defendant, the police found a payroll stub made out to

d e f e n d a n t d a t e d t h e n i g h t t h e v i c t i m d i s a p p e a r e d and a condom

like those found in his room and at the scene of the

homicide.

The defendant was arrested February 1, 1984, and

c h a r g e d w i t h d e l i b e r a t e homicide on F e b r u a r y 9 , 1984. The

t r i a l began on J u l y 16, 1984. During t r i a l , a n e x p e r t on

blood and body f l u i d s t e s t i f i e d t h a t t h e b l o o d on t h e j u t e
carpet backing, the sleeping bag, the Kleenex and cardboard
boxes from the wash bay, the sheet from defendant's pickup,
the wash bay floor and a condom found at the wash bay was the
same type as that of the victim. He also stated that no more
than 84 to 120 people in the Billings area, with a population
of about 120,000, would have this type of blood. This expert
further testified that the semen from the women's panties
found in defendant's bedroom, and from the used condoms found
in the wash bay, including the one with blood on it, matched
that of defendant.
The director of the State Crime Lab testified about the
comparison of human hair made in this case. He explained
that defendant's hair had a unique pigmentation not present
in the hair of other people connected with the case and an
uncommon medulla. He identified head and pubic hair found in
the wash bay area, on the bloody sheet in the yellow pickup,
by the dumpster where the victim's body was found, in a mat
of blood on the victim's hand, and under one of her
fingernails, as matching the characteristics of defendant's
hair. According to this expert, hair characteristic of the
victim's hair was found in the wash bay, on the sleeping bag,
on the sheet in the defendant's pickup and on a condom from
the defendant's house. This same expert testified that the
orange carpet fiber in the victim's hair was very similar to
that found at the Pease business.
The defendant's hair expert concluded many of these
hairs were not matched. However, he admitted most of his
slides showing the hair were made at a magnification too low
to show variations in pigment. Others were so high that the
full hair was not in focus, had too much light which lessened
the detail shown, or were out of focus.
The defendant's ex-wife identified the sleeping bag as
the "trundle bundle" which was a wedding gift to herself and
defendant. She testified that he kept it when they were
divorced and that they had used it frequently during their
marriage. On January 6, 1984, when the defendant was asked
to identify the trundle bundle in a photograph, he claimed
not to recognize it.
The defense relied on supposed sightings of the victim
after November 24, 1983, and defendant's alibi for the
suspected time of the killing. These alleged sightings were
brief contacts with individuals who were strangers to the
victim and most were from a distance. Her roommates, who saw
her on a daily basis before her death, did not see her after
the early morning on November 24, 1983.
Although the defense also relied on alibi, the
defendant's whereabouts were unaccounted for during the late
night and early morning hours of November 23 and 24, 1983.
Defendant's bowling teammate testified that defendant bowled
with the team on November 23, 1983, that bowling finished
about midnight, and that he, the teammate, went home about
2:00 a.m. Defendant's father testified that defendant went
out the night of the 23rd and he did not see defendant again
until after 9:00 a.m. on Thanksgiving morning, although he
saw defendant's truck at home about 6:00 a.m. that day.
Friends and family did not begin to arrive for Thanksgiving
dinner until after 11:OO a.m., on the 24th. Defendant was
home at that time.
 The jury found defendant guilty of deliberate homicide
on August 1, 1984. After the verdict, defendant requested a
new trial. The District Court denied this motion and
sentenced defendant to 100 years on September 21, 1984. He
was designated a dangerous offender and received an
additional 10 years for use of the weapon involved in the
homicide.
Defendant appeals the judgment entered against him
raising five issues:
1) Whether admitting the prior inconsistent statement
of one person through the testimony of another was error.
2) Whether probable cause existed for a search warrant
issued on January 24, 1984, for the residence and vehicles of
Pease and his family.
3) Whether certain items of evidence seized during
searches of the Pease business and testimony about
defendant's alleged involvement with prostitutes was
inadmissible character evidence.
4) Whether the District Court erred when, during
trial, it replaced a juror after finding out the juror was
about to be arrested for sexual intercourse without consent.
5) Whether the prosecutor's closing argument denied
Pease his rights to a fair trial and due process.
In the first issue the defendant contends the District
Court erred in admitting the testimony of Lou Sullivan
concerning extrajudicial statements made by Brian Emineth.
Emineth testified first stating that he was at Lou Sullivan's
house when he heard a television report on this homicide
investigation. He denied saying anything about being with
Pease and picking up, raping and murdering the victim. He
admitted knowing Pease for about 17 years and having been at
the business a few times. He first said he had never been in
the wash bay area but later said he had been there once. On
cross-examination he admitted that he thought he would be
arrested for the deliberate homicide.
Lou Sullivan testified after Emineth. She said Emineth
told her that the police were looking for him and Pease in
connection with the homicide, that the two of them had picked
up the victim and taken her to the Pease business, that Pease
stabbed the victim, and that Emineth had tried to stop him
but could not and fled the scene. She admitted that she was
drinking when Emineth made the statements and that Emineth
was drunk at the time. She also said he told her the body
was at Alkali Creek and the news reports were false.
Hair characteristic of Emineth's was found at the
murder scene, on victim's body, and in Pease's pickup. He
stated that the State Lab was lying about the hair at the
scene and that the hair had been "planted". He denied being
at the murder scene or in Pease's pickup.
The defendant offers two rationales supporting his
assertion that to admit Sullivan's testimony was error. The
first is that the statements were not admissible under any of
the Montana Rules of Evidence and the second is that their
admission denied him his right to confrontation of witnesses.
Under the first rationale, the defendant argues that
the State knew Emineth would deny making the statements when
it called him to testify and deliberately "set up" the
impeachment. The State justifies admitting Sullivan's
testimony as impeachment of Emineth through showing his prior
inconsistent statements under the Montana Rules of Evidence.
According to these rules, a party can impeach his own witness
by showing prior inconsistent statements without regard to
the former requirement of surprise. State v. Fitzpatrick
(1980), 186 Mont. 187, 197, 606 P.2d 1343, 1349, cert. den.,
449 U.S. 891, citing Montana's Code Commission Comment to
Rule 607, M.R.Evid. Rule 613, M.R.Evid. requires that the
witness to be impeached be given an opportunity to explain or
deny the statements prior to the admission of extrinsic
evidence showing the inconsistent statements. Emineth had
this opportunity and denied making the statements. Contrary
to the defendant's suggestion, the State most certainly would
have preferred Emineth admit to having seen the defendant
murder the victim rather than deny making the statements.
Sullivan's testimony was admitted next, with Emineth's
denial laying the foundation for the introduction of his
prior inconsistent statements. The defendant argues that her
testimony was so inherently unreliable that it should have
been inadmissible as hearsay. Rule 801(d) (I), M.R.Evid.,
provides in pertinent part:
A statement is not hearsay if: (1) The
declarant testifies at the trial or
hearing and is subject to
cross-examination concerning the
statement, and the statement is (A)
inconsistent with his testimony ...
The federal rule from which this was derived requires that
the prior inconsistent statement be one "given under oath
subject to the penalty of perjury at a trial or hearing, or
other proceeding, or in a deposition. " Rule 801 (d), Federal
Rules of Evidence. The Montana rule deleted this oath
requirement as harmful and unnecessary. Emineth was present
at trial and subject to direct and cross-examination. The
jury could observe his demeanor as he testified. They could
discern the truth or falsity of the prior statement as well
as the truth or falsity of the inconsistent testimony. See
Advisory Committee Comments to proposed federal rules, 56
F.R.D. 183, 296. Applying Rule 801(d)(l)(A), M.R.Evid.,
Sullivan's testimony was properly admitted as the reliability
of both her and the declarant could be evaluated by the jury.
This Court considered and rejected a defendant's
argument made under similar circumstances in Fitzpatrick, 186
Mont. 187, 606 P.2d 1343. In that case, the declarant
testified and denied making statements about the defendant's
actions while committing the crime. Another witness then
testified about the declarant's inconsistent out-of-court
statement. This Court held the evidence was admissible,
relying on Rules 801(d) (1) (A) and 801(d) (2) (E), M.R.Evid.
The argument that the State intentionally called the
declarant knowing it would impeach him without having been
surprised was considered irrelevant under Montana's
evidentiary rules. Here, as in Fitzpatrick, the State's
intention was irrelevant and the prior inconsistent
statements were properly admissible under the rules of
evidence and could be considered as substantive evidence by
the jury.
The defendant's second rationale to support his
argument in this issue is that admitting this testimony
denied him his right to confront witnesses as guaranteed by
the Sixth Amendment to the U.S. Constitution. This Court
considered and rejected this argument in Fitzpatrick, 186
Mont. 187, 606 P.2d 1343, relying on two United States
Supreme Court decisions, California v. Green (1970), 399 U.S.
149, 90 S.Ct. 1930, 26 L.Ed.2d 489, and Nelson v. O'Neill
(1971), 402 U.S. 622, 92 S.Ct. 1723, 29 L.Ed.2d 222.
The purpose of the confrontation clause was to prevent
depositions or expert affidavits from being used against a
defendant instead of placing the witness before the jury and
subjecting him to direct and cross-examination. Green, 399
U.S. at 157, 90 S.Ct. at 1934-35, 26 L.Ed.2d at 496-97. In
Green, the Supreme Court held that the confrontation clause
is not violated by admitting a declarant's out-of-court
statements if the declarant is testifying as a witness and
subject to full and effective cross-examination. The
declarant in Green professed uncertainty or loss of memory at
trial about certain facts, so previous statements at a
preliminary hearing and to a police officer were admitted
into evidence.
The declarant in O'Neill, 402 U.S. 622, 92 S.Ct. 1723,
29 L.Ed. 2d 222, denied making the out-of-court statement
implicating the defendant and then testified in defendant ' s
favor. The Supreme Court held that the confrontation clause
is not violated when the declarant denies making an
unfavorable out-of-court statement and then testifies
favorably for the defendant.
Here, as in Fitzpatrick, 186 Mont. 187, 606 P.2d 1343,
the declarant was called as a witness for the State and
denied making an out-of-court statement unfavorable to the
defendant. The declarant was subject to cross-examination.
The testimony here was favorable to defendant in that he
would have been in a worse position had Emineth affirmed
making the prior statements. Both Emineth and Sullivan were
examined and cross-examined. The defendant was able to show
both were intoxicated at the time of the out-of-court
statements. The jury heard that Sullivan had a possible
motive of retaliation resulting from another incident. The
jury observed the demeanor of both of them. Defendant's
right to confront witnesses was not violated by the admission
of Sullivan's testimony because the declarant testified as a
witness and was subject to a full and effective
cross-examination. We hold that the District Court properly
admitted the questioned testimony.
In the second issue the defendant contends that the
applications for the search warrants of the Pease residence
and vehicles do not state facts sufficient to show probable
cause. He argues that the applications do not establish a
nexus between the items sought and the places to be searched
and that the information in the applications was stale. In
denying the defendant's motion to suppress, the District
Court concluded that the applications set forth sufficient
detail to show a homicide had been committed and a reasonable
probability that evidence relating to the offense would be at
the places described. On the question of staleness, the
District Court concluded that due to the nature of the items
sought, the passage of time between the discovery of the body
and the applications did not cause the information to become
stale.
This Court applies the standard for reviewing a
determination of probable cause set out in Illinois v. Gates
(1983), 462 U.S. 213, 238-39, 103 S.Ct 2317, 2332, 76
L.Ed.2d. 527, 548:
[Wle affirm the totality of the
circumstances analysis that has
traditionally informed probable cause
determinations. [Citations omitted. ]
 The task of the issuing magistrate is
simply to make a practical, common-sense
decision whether, given all the
circumstances set forth in the affidavit
before him, including the "veracity" and
"basis of knowledge" of persons supplying
hearsay information, there is a fair
probability that contraband or evidence
of a crime will be found in a particular
place. And the duty of the reviewing
court is simply to ensure that the
magistrate has a "substantial basis for
... concluding" that probable cause
existed.
See, State v. O'Neill (Mont. 1984), 679 P.2d 760, 41 St.Rep.
420, and State v. Pierre (Mont. 1984), 678 P.2d 650, 41
St.Rep. 445. A magistrate's determination should be given
great deference by a reviewing court, drawing every
reasonable inference possible to support the determination.

The facts and circumstances contained within the four
corners of the affidavit supporting the application for a
search warrant should justify a reasonable belief that an
offense has been committed and that the items sought are at
the place designated in the warrant. State v. Isom (1982),
196 Mont. 330, 641 P.2d 417. A search will be upheld where
"the nexus between the items to be seized and the place to be
searched rested not on direct observation . . . but on the
type of crime, the nature of the missing items, the extent of
the suspect's opportunity for concealment, and normal
inferences as to where a criminal would be likely to hide
stolen property." United States v. Spearman (9th Cir. 1976),
532 F.2d 132, quoted in Pierre, 678 P.2d at 653, 41 St.Rep.
at 449.
The victim's death was an obvious homicide so there was
no doubt an offense had been committed. When the application
for a warrant was made, the investigation already had
revealed evidence connecting the homicide to the Pease
business. The body was found near the business. The
sleeping bag and jute carpet backing were found nearby. The
carpet in the victim's hair and the backing found by the
sleeping bag were similar to carpet and backing found at the
business. Hair and blood matching that of the victim were
found in the locked wash bay area of the business. The
plaster cast of the victim's foot matched the cleaned water
pipes in the wash bay. No one had access to the premises
except the defendant, his parents and one uncle during the
time the building had been closed and the homicide had
occurred. Other evidence in the application also supported
the conclusion that the homicide occurred in the wash bay.
The items sought here included the murder weapon (a
knife), the victim's missing clothing, jewelry and shoes, a
cancelled check payable to the victim or the Empire Bar,
condoms like those at the murder scene, bloody rags or
tissues, fingerprints, hair and fiber samples, bricks
matching those found with the sleeping bag, and tires
matching the prints near the body. This was the kind of
evidence likely to exist but as yet undiscovered. Some
items, i.e., the knife, the clothing, jewelry and shoes of
the victim could have been possible mementos and were the
kind likely to be found where the persons involved with the
crime lived. See, e.g., United States v. Bowers (9th Cir.
1976), 534 F.2d 186, 190-92, cert. den. 429 U.S. 942. Other
items, such as the hair, blood samples and fingerprints,
would be difficult to collect or dispose of completely.
Finally, a number of items, by themselves, were innocuous and
likely to be present in a vehicle or residence for a more
lengthy period of time after the crime. The information
offered to support the application for a search warrant
established a nexus between the locations to be searched and
the items sought.
The defendant also contends that, in addition to it
being unlikely the items were at the places to be searched,
it was not probable that the items would still be present in
the residence or vehicles 53 days after the discovery of the
body. As the District Court noted, "staleness depends
largely on the nature of the property sought" and the passage
of this amount of time, alone, may not negate probable cause.
The likelihood that the evidence sought
is still in place is a function not
simply of watch and calendar but of
variables that do not punch the clock:
the character of the crime (chance
encounter in the night or regenerating
conspiracy?), of the thing to be seized
(perishable and easily transferable or of
enduring utility to its holder?), of the
place to be searched (mere criminal forum
of convenience or secure operational
base?), etc. The observation of a
half-smoked marijuana cigarette in an
ashtray at a cocktail party may well be
stale the day after the cleaning lady has
been in; the observation of the burial of
a corpse in a cellar may well not be
stale three decades later. The hare and
the tortoise do not disappear at the same
rate of speed.
Andresen v. State (Md.App. 1975), 331 A.2d 78, aff'd sub.
nom. Andresen v. Maryland (1976), 427 U.S. 463, cited in
Pierre, 678 P.2d at 654, 41 St.Rep. at 449.
The items sought here were more likely to remain in a
residence or vehicle than consumable or perishable goods.
Some would have continuing utility to the owner. The places
searched were those a person normally would store items.
Many of the objects were not of the nature that they would be
destroyed by the defendant. Although many items were the
kind of evidence that could be moved easily, there was no
reason to believe that any would be moved to different
locations. Thus, information supporting the applications was
not stale. Drawing all reasonable inferences to support the
magistrate's determination, we hold that there was a
substantial basis for concluding probable cause existed at
the time the search warrants were issued.
In the third issue the defendant claims that the
District Court improperly admitted into evidence pornographic
books, condoms, the woman' s panties found in defendant ' s
room, and testimony about his prior contacts with
prostitutes. He contends that the evidence was irrelevant,
the danger of unfair prejudice substantially outweighed any
probative value, and that the testimony was inadmissible
character evidence. We first note that photographs of the
covers of the pornographic magazines and a pin-up found at
the murder scene and in defendant's room, photographs of
condoms found at the murder scene and in defendant's room,
and a photograph showing stains on the woman's panties found
in defendant's room were admitted into evidence, not the
objects themselves. We address the admissibility of these
photographs separately from the admissibility of testimony
about defendant's contacts with prostitutes.
The State contends that the photographs were relevant
to show the identity and possible motive of the perpetrator
of the crime. Rule 401, M.R.Evid., defines relevant evidence
as:
... evidence having any tendency to
make the existence of any fact that is of
consequence to the determination of the
action more probable or less probable
than it would be without the evidence.
Relevant evidence may include evidence
 bearing upon the credibility of a witness
or hearsay declarant.
This standard "is meant to allow wide admissibility of
circumstantial evidence limited only by Rule 4 0 3 or other
special relevancy rules in Art. IV [of M.R.Evid.1 ."
Fitzpatrick, 1 8 6 Mont. at 207, 606 P.2d at 1 3 5 4 , citing
Montana's Code Commission Comment.
The photographs of the condoms, the pornographic
magazines and pin-up, and the woman's panties tend to connect
the defendant with the scene of the murder and suggest a
possible violent sexual motive. A pornographic pin-up
suggesting violence and condoms were found at the scene. The
search of defendant's room yielded pornographic magazines
suggesting violence toward women, condoms like those in the
wash bay, and the semen stained woman's panties. The
victim's clothing was never found. Although the panties were
never identified as belonging to the victim, a detective
testified that murderers often take and keep items belonging
to the victim. On one of the used condoms in defendant's
room, pubic hair matching that of the victim was found. The
semen stains and hair on the panties were defendant's type.
The hair and fiber expert testified hair adheres to fabric
and can be transferred. The jury could have inferred from
this evidence that the hair found on the condom came from the
panties. These items all tended to link the defendant with
the scene of the crime and the victim, and suggested a
possible motive.
Defendant argues that even if relevant, the prejudicial
effect of the items exceeded any probative value.
Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
 unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of
time, or needless presentation of
cumulative evidence.
Rule 403, M.R.Evid. A district court's weighing of potential
prejudice against probative value will be upheld absent an
abuse of discretion. State v. Austad (1982), 197 Mont. 70,
83, 641 P.2d 1373, 1380. The District Court below rejected
defendant's argument that the evidence was unfairly
prejudicial because it reflected on his character. This
Court rejected a similar argument in State v. Armstrong
(1976), 170 Mont. 256, 552 P.2d 616, where evidence of
defendant's destitute financial condition, outbursts of
anger, and high regard for his weapons formed circumstantial
evidence from which to infer a motive for the homicide.
Here, photographs of the objects formed circumstantial
evidence from which to infer the defendant was the
perpetrator and to infer a motive from evidence of his
interest in violent sex. In a violent sex-related homicide
most evidence linking the defendant to the crime is likely to
be somewhat prejudicial. Here, the State used photographs of
the objects having probative value rather than the objects
themselves, the latter of which may have had greater
potential for prejudice. We find that the District Court did
not abuse its discretion by allowing these photographs into
evidence.
A detective testified that the defendant gave a
statement in which he denied ever dealing with prostitutes.
A later witness testified that the defendant had paid for the
services of two prostitutes for himself and the defendant.
Another witness testified that the defendant told her he
would "get a hooker" after she refused to go home with him.
The defendant argues, as part of this third issue, that this
testimony was inadmissible under Rule 404 (b), M. R.Evid., and
that the danger of unfair prejudice outweighed any probative
value of the testimony.
Rule 404 (b), M.R.Evid., states:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show that he
acted in conformity therewith. It may,
however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident. (Emphasis added.)
In State v. Shaw (1982), 199 Mont. 248, 252, 648 P.2d 287,
289-90, this Court held that "other crimes" evidence under
this Rule may be admitted to show consciousness of guilt.
The testimony was offered to show that the defendant gave a
false statement about his contacts with prostitutes during
questioning about the homicide of a prostitute rather than to
prove his character. A false explanation of incriminating
information may be considered evidence of consciousness of
guilt. United States v. Green (9th Cir. 1979), 597 F.2d
1227, cert. den., 444 U.S. 853. As noted above, absent an
abuse of discretion, this Court will not overturn a district
court's weighing of the danger of prejudice against probative
value. Austad, 197 Mont. at 83, 641 P.2d at 1380. The
testimony made the issue of the defendant's identity more
likely by allowing an inference of his consiousness of guilt.
We find no abuse of discretion in admitting this evidence.
The fourth issue concerns whether the District Court
erred when it replaced a juror during trial, after finding
out the juror was to be arrested for the felony offense of
sexual intercourse without consent. The State brought the
matter to the District Court's attention at an - camera
in
hearing after it became aware of the pending investigation.
The officer who was investigating the juror testified that
the juror confessed to the crime, knew he would be arrested
and had expressed concern that the timing of the arrest would
affect his duties as a juror. The State moved to disqualify
the juror for the reasons that he may be overly sympathetic
to the defendant or he may vote for a conviction to gain
leniency from the State. The defendant's counsel agreed that
both possibilities were relevant concerns but argued that the
alternate was not paying attention. He did not object to the
juror's removal. The District Court then disqualified the
juror and questioned him regarding whether the other jurors
were aware of his situation. He testified that they were
not. The District Court denied the defendant's subsequent
motion for mistrial based on contamination of the jury panel
and on the alternate's lack of attention. The defendant
raised the juror's disqualification as an issue in his motion
for a new trial, arguing that the District Court did not have
the authority to remove the juror after the presentation of
evidence began and that there was an insufficient showing of
possible bias on the part of the juror. When denying the
motion for a new trial, the District Court stated the
defendant no longer claimed prejudice from the alternate's
participation and the defendant had agreed there was a
potential for prejudice if the juror remained on the panel.
The District Court held the possibility of the juror's being
charged was sufficient to prevent his impartiality in
deliberations.
 Contrary to the defendant's contention, the removal of
this juror was not premised on § 46-16-306, MCA. The
District Court considered 546-16-306 and -304(2), MCA, on

challenges for cause as an aid in determining whether the
possibility of the juror being charged was sufficient to
replace him. The juror was replaced pursuant to
5 46-16-307(3), MCA, which states:
Alternate jurors, in the order in which
they are called, shall replace jurors
who, prior to the time the jury arrives
at its verdict, become unable or
disqualified to perform their duties

The plain meaning of the statute is that substitution of an
alternate for an original juror who becomes disqualified or
unable to perform his duties is permitted at any time prior
to the reaching of a verdict. Clearly, the defendant's
argument that the District Court's action was not timely must
fail.
Rule 24(c) of the Federal Rules of Criminal Procedure
contains language similar to 5 46-16-307(3), MCA. The
federal circuits consistently hold that the trial court has
the discretion to remove a juror and seat an alternate
whenever the facts show the juror's ability to perform his
duties is impaired. The circuits also consistently hold that

the reviewing court will not disturb the ruling unless the
defendant shows bias or prejudice. U.S. v. Ellenbogen (2nd
Cir. 1966), 365 F.2d 982, 989, cert. den., 386 U.S. 923, 87
S.Ct. 982, 17 L.Ed.2d 795. See also, U.S. v. Zambito (4th
Cir. 1963), 315 F.2d 266, 269, cert. den., 373 U.S. 924, 83
S.Ct. 1524, 10 L.Ed.2d 423; U.S. v. Smith (5th Cir. 1977),
550 F.2d 277, cert. den., sub. nom.; Wallace v. U.S. (19771,
434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105; U.S. v. Barrett
(9th Cir. 1983), 703 F.2d 1076, 1083, n. 12. " ' [P]rejudice1
would include discharge of a juror for want of any factual
support, or for a legally irrelevant reason. There must be
some 'sound' basis upon which the trial judge exercised his
discretion." U.S. v. Rodriguez (5th Cir. 1978), 573 F.2d
330, 332.
The District Court had a legal reason and heard facts
from which it could determine the juror's ability to perform
his duties would be impaired. Section 46-16-304 (2)(j), MCA,
provides that a challenge for cause may be taken if the juror
has a "state of mind in reference . . . to either of the
parties which would prevent him from acting with entire
impartiality and without prejudice to the substantial rights
of either party." An officer who had been or would be
present during trial testified that the juror knew he was to
be arrested for a sex related offense by that same officer.
The defendant's counsel agreed that concerns about the juror
voting either to curry favor with the State or in sympathy
for the defendant were legitimate concerns. The District
Court did not abuse its discretion.
The better procedure would have been to question the
juror prior to replacing him with an alternate. However, in
this case such a hearing would have had limited utility. The
juror had a right to remain silent about the pending charges
and any insistence on his part that he could remain impartial
may have had little weight. The District Court already had
sufficient information to remove the juror.
The defendant apparently held the view that the jury
panel would be contaminated if the juror remained. The
District Court questioned the juror and determined that he
had not discussed his situation with the others, including
the alternate. After this, the defendant still objected only
on the grounds of contamination of the jury panel. He did
not object to the removal of the juror. If the District
Court had let the juror remain, the defendant would be
arguing that was error. We hold that the District Judge
acted within her discretion when replacing the juror with the
alternate. The defendant has failed to demonstrate any
prejudice from the action and any procedural error was
harmless.
Nor did the defendant demonstrate prejudice from the
calling of the alternate juror. The alternate was subjected
to voir dire and accepted by the defendant. The defendant
alleged improper conduct by the alternate only in his motions
for a mistrial and a new trial. The record shows no
objection during trial and no request to admonish the
alternate for a failure to pay attention. The District Court
did not note any inappropriate behavior by the alternate.
In the final issue, the defendant argues that the
State's closing argument denied him due process and a fair
trial. Montana has long held that objections to closing
arguments first made on appeal are too late. Hawkins v.
Crist (1978), 178 Mont. 206, 583 P.2d 396, cert. den., 439
U.S. 957, 99 S.Ct. 359, 58 L.Ed.2d 350. The defendant admits
he chose not to object as a matter of trial strategy.
Contrary to his contentions, State v. Harris (Mont. 1984),
682 P.2d 159, 41 St.Rep. 866, does not hold that a motion for
a new trial preserves an objection to a closing argument.
Harris relies on the plain error doctrine in S 46-20-702,
MCA. This case does not meet the conditions set forth in
that statute.
Further, the prosecutor's statements during closing
argument were based on the evidence admitted at trial. There
was no comment on the defendant's failure to testify or on
facts not in evidence. The District Court, when presented
with the motion for new trial, correctly ruled the failure to
object barred consideration of this issue because substantial
rights of defendant were not affected and correctly noted the
comments did not exceed the bounds of permissible argument.
The jury verdict, subsequent judgment and the order
denying defendant's motion for a new trial affirmed.

?

We concur: .H
-

T&
Chief Justice