No. 8 5 - 6 1 9
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff/Respondent,
VS .
JOHN WALTON,
Defendant/Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of McCone,
The Honorable Russell C. McDonough, Judge presiding.
COUNSEL OF RECORD:
For Plaintiff/Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Assistant Attorney General, Helena,
Montana; Arnie A. Hove, McCone County Attorney,
Circle, Montana.
For Defendant/Appellant:
Francis J. McCarvel, Glasgow, Montana.
-
Submitted on Briefs: April 24, 1 9 8 6
Decided: July 22, 1986
*,d
Clerk
I
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a jury verdict in the District
Court of the Seventh Judicial District in and for McCone
County, Montana. The defendant was found guilty of a single
felony count of conspiracy to commit sale of dangerous drugs
and was sentenced to three years suspended, with conditions,
in the Montana State Prison, and fined $8,000. We affirm.
The appellant, John Walton (FTalton), his wife Ethel,
and two of their sons, Fred and John Jay, were charged with
two felony counts of sale (growing), conspiracy to sell and
solicitation to sell dangerous drugs. The allegation was
that Walton and the others charged had engaged in an illegal
conspiracy to cultivate marijuana on the ranch owned by
Walton in northern McCone County. Prior to trial the
solicitation charge was dismissed as to Walton, John Jay, and
Fred. At the conclusion of the State's case, the court
granted defense counsel's motion to dismiss Ethel Walton as a
defendant.
Walton's daughter, Donna Tyson, her minor children, her
husband, Bobby Dale Tyson, and Tyson's brother, moved from
Texas to an abandoned farmstead owned by Walton. After
consulting with Walton about the proper location, they built
a greenhouse and planted marijuana.
Cottonwood trees on Walton's property were used in the
construction of the greenhouse. Walton permitted the use of
his pump to supply the plants with necessary water. He paid
for the materials to build an A-frame structure around the
greenhouse in order to camouflage it. After the marijuana
was planted, it was dried and stripped, divided into
one-pound bags and taken by the Tyson brothers to Texas to be
sold. They were apprehended by Texas law enforcement
officials and gave statements revealing the entire scheme.
The jury acquitted Fred Walton on all charges. John
Jay Walton and John Walton were found guilty of conspiracy to
commit criminal sale of dangerous drugs and John Jay also was
found guilty of a lesser included offense, possession of
dangerous drugs, a misdemeanor. John Walton is the only
defendant to appeal.
Walton presents three issues on appeal: (1) Whether
the trial judge erred in not granting a mistrial due to the
erroneous and prejudicial remarks of the county attorney
during voir dire of the jury; (2) whether the trial judge
erred and abused his discretion in admitting one of the
State's exhibits, because a sufficient chain of evidence was
not established; and (3) whether accomplice testimony was
properly corroborated.
Walton argues an improper remark made by the prosecutor
during voir dire was prejudicial. The prosecutor said he had
presented certain evidence to the District Judge to be
reviewed prior to his granting the prosecutor permission to
file charges. In fact he had presented only an affidavit.
Defense counsel objected to the prosecutor's statement,
fearing the jury would be mislead. The court admonished the
prosecutor to correct himself, which he did. It has been
held when a prosecutor's improper statement is disclaimed or
corrected there is no error. U.S. v. Parker (D.C. ~ i r .
1969), 419 F.2d 679. After the jury was selected, the court
gave the following instruction:
Now, ladies and gentlemen, I instruct you
that those remarks by Mr. Hove were
improper, that they were incorrect, and
that they were erroneous, and that you
are to disregard such statements and must
not in any way consider them relative to
this case.
The judge's admonition to the prosecuting attorney and
his cautionary instruction to the jury are sufficient in this
case not to result in prejudice to the defendant. The
controlling question should be the good faith of counsel in
saying what he said and the likelihood the defendant was
unfairly prejudiced by what was said. Gladden v. Frazier
(9th Cir. 1968), 388 F.2d 777, 779.
Walton offers no evidence he was prejudiced by the
remark nor can we find any. Probably the best evidence that
the jury was not prejudiced by the prosecutor's remark is its
verdict. Fred Walton was acquitted of all charges, and John
Walton and his son John Jay were acquitted on one count of
felony sale of dangerous drugs. A jury influenced by an
inadvertent remark made by the prosecutor during voir dire
would not throw out most the State's case. See State v.
Toner (1953), 127 Mont. 283, 289, 263 P.2d 971, 974. After
both sides had rested, the jury was instructed they were not
to infer guilt by virtue of the fact the defendants were
brought to trial.
Because Walton cannot show prejudice by a remark his
counsel admits was inadvertent, it is not error for the court
to deny his motion for a mistrial. We refuse to reverse on
the mere ground of a corrected misstatement when there is no
evidence of either bad faith on the part of the prosecutor or
prejudice to the defendant.
Walton argues the State should be required to account
for the seized marijuana at all times prior to its seizure by
law enforcement officials. Walton misinterprets the chain of
custody rule, which does not require the police or
prosecutors to account for the possession of evidence before
it comes into their hands. A continuous chain of possession
must be established after acquisition of the evidence, not
before. State v. Thomas (1975), 166 Mont. 265, 532 ~ . 2 d405.
If the defendant claims the evidence was tampered with before
the prosecution acquired it, he has the burden "to show
affirmatively that tampering had taken place." Thomas, 166
Mont. at 268, 532 P.2d at 407.
It is not necessary for the State to
prove it would be impossible to tamper
with the exhibits. [Cites omitted. 1
Rather the State need only make a prima
facie showing that there had been no
substantial change in the evidence.
State v. WongFong, (1925) 75 Mont. 81,
87, 241 P. 1072, 1074.
State v. Wells (1983), 202 Mont. 337, 356, 658 P.2d 381, 391.
Walton misinterprets Wells and WongFong when relying on
them to support his position. He argues the State failed to
make a prima facie case there was no substantial change in
the evidence, citing various examples of conflicting evidence
about the quantity of marijuana taken from Montana to Texas
and the quantity seized by the Texas authorities. However,
that evidence is irrelevant to consideration of possible
chain of custody problems because the marijuana was not in
the custody of law enforcement officials. Walton offered no
testimony the evidence was tampered with after it was in
possession of the Texas authorities.
Ultimately the argument is academic, because the only
charge involved in this appeal is that of conspiracy. This
particular evidence is only incidental in establishing
conspiracy.
Walton's third argument is this case is totally lacking
any corroborative evidence.
Montana case law concerning corroboration
is well settled. It provides that the
corroborating evidence may be supplied by
the defendant or his witnesses; it may be
circumstantial evidence; it need not be
sufficient to sustain a conviction or
establish a prima facie case of guilt;
and, it need only tend to connect the
defendant with the crime as charged.
Where the claimed corroboration, however,
shows no more than an opportunity to
commit a crime, simply proves suspicion,
or is equally consonant with a reasonable
explanation pointing toward innocent
conduct on part of the defendant, the
evidence is to be deemed insufficient.
[Citations omitted.]
State v. Mitchell (Mont. 1981), 625 P.2d 1155, 1158, 38
Uncorroborated testimony of an accomplice cannot
sustain a conviction . . . However, it is not necessary that
the accomplice be corroborated as to every material fact to
which he testifies. State v. Yegen (1929), 86 Mont. 251,
254, 283 P. 210, 211. Generally speaking, an accomplice is
one who knowingly, voluntarily, and with a common intent with
the principal offender unite in the commission of a crime.
State v. Jenkins (1923), 66 Mont. 359, 365, 213 P. 590, 592.
Because this appeal is from a conviction of conspiracy,
only testimony which corroborates testimony of accomplices by
tending to connect Walton with the conspiracy will be
considered. There is corroboration of accomplice testimony
by at least three witnesses. Donna Tyson's sons, Lee and
Russell Munyan, and John Walton's son, Fred, testified to
John Walton's active involvement in the enterprise. It
should be noted Fred Walton was charged after he gave an
account of his discovery of the growing marijuana.
Accomplice testimony was properly corroborated.
The judgment of the District Court is affirmed.
We Concur: