No. 87-097
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA
Plaintiff/Respondent,
VS.
SCOTT STEPHEN BRUSH,
Defendant/Appellant,
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer
The Honorable Arthur B. Martin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Joe L. Hegel, Miles City, Montana,
For Respondent:
Honorable Mike Greely, Attorney General,
Clay R. Smith, Assistant Attorney General,
Helena, Montana,
Keith D. Haker, Custer County Attorney,
J. Dennis Corbin, Deputy Custer County Attorney,
Miles City, Montana.
Submitted on Briefs: July 1, 1987
Decided: September 1, 1987
Filed: SEP 1- 1981J
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Appellant, Scott Stephen Brush, was convicted of sexual
assault in District Court, Sixteenth Judicial District,
Custer County, following a trial by jury. During the trial,
defense counsel made a motion for a mistrial based on
testimony introducing other crimes contrary to a pre-trial
agreement. This motion was denied as was a similar motion
for new trial and/or mistrial made after the jury verdict.
Appellant appeals his conviction and the trial court's denial
of his motions for mistrial and new trial.
We affirm.
Brush raises three issues on appeal.
1. Did the District Court err in denying defendant's
motion for mistrial after police officer testified to other
crimes in spite of prior agreement and without the required
Just notice?
2. Did the District Court err in denying the
defendant's motion for new trial and/or mistrial upon the
grounds that the officer's testimony was prejudicial?
3. Did the District Court err by applying the wrong
standard for determining whether the defendant was prejudiced
by the officer's testimony?
On August 19, 1985, defendant Brush went to Bender Park
located on the northeast side of Miles City where he struck
up a conversation with a juvenile, J.L.O., age eight,
accompanied by her eight month old brother. J.L.O. testified
at trial that Brush asked her a lot of questions and then put
his arms around her and rubbed her genital area when she bent
over to place her brother in his stroller. She ran behind a
building and when Brush did not pursue her, returned to the
stroller, put her brother in it, and went to her home across
the street. J.L.O. immediately told her mother that there
was a man in the park who was asking her a lot of questions.
Her mother then went over to the park, wrote down the license
number of the defendant's orange van and got a general
description of the defendant who was still in the park. She
called the police. Officer Newby responded to the call and
was approached by two other children at the park, W.B. Z. and
R.Z. They described the defendant and told Newby that he had
tried to touch both of them in their "private parts." At
this time, J.L.O. arrived at the park and told the officer
she had been touched in her "private parts" also. The
defendant was eventually arrested after his van was
identified and stopped at an intersection by other officers
who found numerous opened and unopened beer bottles.
Defendant admits talking to J.L.O. at the park but denies
touching her.
Brush was charged by information under S 4 5 - 5 - 5 0 2 ( l ) ,
MCA, on two counts of sexual assault against J.L.O. and
W.B.Z. The counts were severed by order on December 20,
1985. This case deals only with count one regarding the
offense against J.L.O. Upon learning that the State would
call W.B.Z. to the stand as part of their case in chief,
defense counsel requested that the State be prevented from
asking W.B.Z. questions relating to the charge in the severed
second count. The county attorney orally agreed to this
before trial.
The controversy in this case surrounds the testimony
given by Officer Newby. After relating the description of
the defendant given by W.B.Z. and R.Z., the following
occurred:
Q. What other conversation did you have with the
youth? A. I asked them basically what the problem
was -- you know, did they have any problem with
this man. The nature of the call was "bothering",
so I then inquired of what was happening.
Q. Did any of the youth explain to you? A. Yes.
Q. Just continue, what occurred? A. Robin stated
that the man was -- that he talked very nice and he
tried to touch both of them in their private parts.
Defense counsel's objection was sustained and the jury was
directed to disregard any testimony concerning any other
alleged offense. After the close of the State's case,
defendant entered a motion for mistrial which was denied, as
was a motion for new trial and/or mistrial made after the
verdict came in.
Appellant first contends that the State failed to
conform to the procedural requirements of State v. Just
(1979), 184 Mont. 262, 602 P.2d 957. The decision in that
case requires that the prosecutor give reasonable notice to
the defendant that he intends to introduce evidence of other
crimes. Just, 602 P.2d at 963-64. The purpose of this rule
is to insure that the defendant is fully informed of what
crimes or charges he need defend against so that he will not
be taken by surprise at trial. The trial court found that
Newby's testimony had been inadvertent. Both the county
attorney and defense counsel agreed at trial that Newby's
testimony was not a planned part of the State's case.
Indeed, the county attorney had fully instructed Newby
regarding such testimony in accordance with the pre-trial
agreement. We fail to see how Just applies to a case where
the county attorney never intended to introduce evidence of
defendant's other crimes and where the testimony was an
unintentional response to a non-suggestive question as
occurred here. Therefore, we conclude that no Just notice
was required under these circumstances.
Appellant next contends that the introduction of Newby's
testimony was of "such an inflammatory nature" that the
cautionary instructions given by the court "only served to
reinforce the prejudicial effect in the minds of the jurors."
The standard for establishing prejudice is whether a
substantial right was denied. Section 46-20-701, MCA; State
v. Gray (Mont. 1983), 673 P.2d 1262, 1266, 40 St.Rep. 2023,
2027; State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d
381, 388. Only if there was a reasonable possibility that
the inadmissible evidence might have contributed to the
conviction is there reversible error. State v. Howell (Mont.
1987), 734 p.2d 214, 217, 44 St.Rep. 542, 546; Gray, 673 P.2d
at 1266; Wells, 658 P.2d at 388; State v. Lave (1977), 174
Mont. 401, 571 P.2d 97.
Here, Officer Newby's testimony was not purposely drawn
out by the county attorney. Defense counsel agreed that it
was an inadvertent slip. The testimony was neither graphic
nor detailed and the county attorney made no effort to
corroborate it. In addition, J.L.O.'s testimony was found by
the trial court to be consistent with corroborating testimony
and truthful. Under the above circumstances we find that
even if there was error it was rendered harmless by the trial
court's cautionary instructions to the jury.
The general rule is that where the trial judge withdraws
or strikes improper testimony from the record with an
accompanying cautionary instruction to the jury any error
committed by its introduction is presumed cured. State v.
Smith (Mont. 1986), 715 P.2d 1301, 1308, 43 St.Rep. 449, 456;
State v. Gray (Mont. 1983), 673 P.2d 1262, 1266, 40 St.Rep.
2023, 2027; State v. Freeman (1979), 183 Mont. 334, 345, 599
P.2d 368, 374. As we discussed in Freeman, the jury cannot
be presumed to ignore their duties to respect the
instructions of the court and to decide a case based only
upon the evidence admitted. Freeman, 599 P.2d at 374-75.
See also State v. Armstrong (1980), 189 Mont. 407, 428, 616
P.2d 341, 353. The trial court gave three cautionary
instructions admonishing the jury to disregard Officer
Newby's comment. One was given immediately after defense
counsel's objection. Another was given at the end of county
attorney's redirect examination of Newby and a third was
given in jury instruction no. 14 as follows:
INSTRUCTION NO. 14
Testimony has been given by Officer Newby that
during his initial investigation that he was told
by two children that the defendant had touched
them. You are instructed to erase this testimony
from your minds and not allow it to influence you
in any manner in determining if the defendant is
guilty or not guilty of the offense of sexual
assault against a child, [J.L.O.].
Appellant argues that these repeated instructions only served
to firmly fix Newby's remark in the minds of the jurors.
This argument is without merit. Evidence of other crimes is
often admitted by courts for limited purposes with a
corresponding cautionary instruction to the jury. This
practice has been expressly approved and provided for by this
Court in Just. Just, 602 P.2d at 964. To recognize that
juries can hear of other offenses and use proper restraint in
considering them only for a particular purpose but cannot
ignore them completely when told to do so is illogical and
inconsistent.
This case is very similar to the case of State v.
Straight (1959), 136 Mont. 255, 347 P.2d 482, where the
prosecuting attorney referred to the defendant's beating of
"children" instead of the single child who was the subject of
the assault charge. This Court held that any error resulting
from this remark was promptly cured by the judge's
admonishment to the jury to disregard the statement.
Straight, 347 P.2d at 487. A similar result was demanded in
State v. Liddell (Mont. 1984), 685 P.2d 918, 41 St.Rep. 1293,
where a rape victim "blurted out," in departure from the
established time sequence of her testimony, that the
defendant had smoked a marijuana cigarette prior to the act
charged. The State did not pursue this and we held that the
evidence was made harmless by the trial court's cautionary
instruction. Liddell, 685 P.2d at 925. Accordingly we hold
that any error caused by Newby's inadmissible testimony was
cured by proper admonishment of the jury.
The third contention of appellant is that the trial
court used the wrong standard in denying the defendant's
motions for mistrial and motion for new trial. We do not
agree.
As stated above the standard for determining reversible
error is whether there was a reasonable possibility that the
inadmissible evidence might have contributed to the
conviction. Gray, 673 P.2d at 1266. The trial judge noted
in his order of November 10, 1986 that he found J.L.O.'s
testimony credible and consistent with corroborating
testimony and that he was satisfied that the jury convicted
only on the admitted evidence. Our role as an appellate
court is to determine whether as a matter of law the trial
court abused its discretion in denying a mistrial under these
circumstances. State v. Close (Mont. 1981), 623 P.2d 940,
946, 38 St.Rep. 177, 183. To declare a mistrial there must
be a manifest necessity to do so or the ends of public
justice would be defeated. State v. Smith (~ont.19861, 715
P.2d 1301, 1308, 43 St.Rep. 449, 456; Close, 623 P.2d at 946.
Similarly, to grant a new trial, the defendant must have been
deprived of a fair and impartial trial or it is clearly
within the interest of justice. See Gray, 673 P.2d at
1265-66; State v. Rose (1980), 187 Mont. 74, 83, 608 P.2d
1074, 1079. Because the trial court is in the best position
to observe the jurors and determine the effect of
questionable testimony it is given a latitude of discretion
in its rulings on prejudicial evidence. See Gray, 673 P. 2d
at 1266 and cases cited therein.
This is not a case of prosecutorial misconduct which
often forms the basis for a new trial. See Gray, 673 P.2d at
1265-66. As stated earlier no prejudicial error was shown.
Officer Newby's inadvertent statement was not graphic nor
detailed and was not elaborated upon. Any prejudicial effect
it may have had was promptly cured by the court's cautionary
instructions to the jury. The trial judge did not abuse his
discretion in denying the defendant's motions for mistrial
and new trial.
Affirmed.
We Concur: ,'