No. 86-335
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ROSANNE MARIE MURRAY,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Morrison, Hauge, Ober, Young & Melcher; Robert
Morrison argued, Havre, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Marc Racicot argued, Asst. Atty. General, Helena
Donald A. Ranstrom, Blaine County Attorney, Chinook,
Montana
- --
Submitted: May 1, 1987
Decided: August 18, 1987
Filed: AUG 18 1987; '
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Roseanne Murray appeals her Blaine County District
Court conviction for deliberate homicide. She raises three
issues on appeal; (1) whether the District Court erred in
refusing to declare a mistrial because of juror misconduct;
(2) whether the defendant received the effective assistance
of counsel where the State allegedly failed to give timely
notice of witnesses; and (3) whether the court erred in
allowing evidence of the defendant's prior disciplinary acts
toward her foster daughter, the victim of the homicide. We
affirm.
In September 1985, the defendant and her husband had
five children living with them in their home near Chinook,
Montana. T.H., the victim, was a 29 month old foster
daughter of the Murrays. L.F. and F.F., who were then
approximately nine and eight years old respectively, were
also foster daughters and were half sisters of T.H. A., an
adopted daughter, was then three years old and J., almost six
months old at that time, had recently been placed for
adoption with the Murrays.
On September 26, 1985, the defendant called Dr. James
Beggs in Chinook at approximately 3:05 p.m. and reported that
T.H. had stopped breathing. Dr. Beggs and an ambulance crew
went to the Murray house to assist the child. The ambulance
transported T.H. to the Northern Montana Hospital in Havre.
She died later that evening. The county coroner listed the
cause of death as internal injuries with associated bleeding,
infection and shock. The autopsy of T.H. showed multiple
bruises, abrasions and internal injuries. For purposes of
this appeal, we need not recite the horrible specifics of the
injuries nor all of the circumstantial evidence pointing to
the defendant as the perpetrator. Police arrested the
defendant and the State charged her with deliberate homicide.
The Blaine County District Court scheduled defendant's
trial for April 7, 1986. On March 28, 1986, ten days prior
to trial, the State gave notice of its intent to possibly
call twelve additional witnesses. The defendant moved to
continue the trial date or, in the alternative, to deny the
prosecution the right to call the additional witnesses.
Ultimately, the defense appeared to acquiesce in the court's
decision not to continue the trial and to allow the State to
call some of the additional witnesses.
On April 2, 1986, the State filed notice of its intent
to introduce evidence of prior acts of violence or discipline
toward T.H. At the omnibus hearing in January 1986, the
State had indicated it would not rely on evidence of past
acts. In response to the April notice, the defense moved
(1) to quash the State's notice of intent to introduce
evidence; (2) in limine, to prevent the State from
introducing evidence of the defendant's prior acts; and
(3) for more specific information on the date, conduct and
relevance of defendant's prior acts. The court ruled against
the defense on all three aspects of its motion and allowed
the State to introduce evidence of the defendant's prior
disciplinary acts.
The case went to trial on April 7, 1986. Evidence at
trial revealed that . (1) F.F., L.F. and T.H. may have been
abused, sexually and otherwise, prior to living with the
Murrays; (2) that the two older children acted in violent
and sexually inappropriate ways toward the younger children;
and (3) that F.F. was especially violent towards T.H.
Defendant's testimony implied that T.H. may have been fatally
injured by her nine year old half sister, F.F. Eventually,
the jury convicted the defendant of deliberate homicide. The
court sentenced defendant to fifty years in prison and
designated her a nondangerous offender for parole purposes.
This appeal followed.
The first issue is whether the court erred in refusing
to declare a mistrial because of juror misconduct. Defendant
complains about the alleged misconduct of two jurors. After
the trial had commenced, juror Schaeffer was seen entering
the local office of the state Social and Rehabilitative
Services (SRS). At that point, evidence had already shown
that SRS was involved peripherally in the case. The judge
admonished the jury as a whole to avoid SRS personnel and the
SRS office. Later, the defense produced evidence that
Schaeffer, during the course of a conversation with his wife,
mentioned the names of the Murrays and of some of the
children while he was in a restaurant. Schaeffer denied that
he discussed the case in public with anyone.
The most serious misconduct was that of juror McCoy.
While the trial was in progress and after there had been
evidence of sexual abuse of the children, juror McCoy made
several phone calls attempting to contact Mr. Ranstrom, the
Blaine County Attorney who assisted with the prosecution of
defendant. Juror McCoy refused to identify herself and
Ranstrom initially refused to talk with her for that reason.
On her third call to Ranstrom's office, McCoy left an
anonymous message quoting a newspaper article that "[elven
criminal court cases involving sexual abuse charges are
closed to the public. .. " Still without knowing McCoy's
identity, Ranstrom returned her call to explain that the
evidence of sexual abuse was properly admissible in a public
trial in this instance. McCoy replied that she still didn't
like it (apparently referring to the evidence of sexual
abuse). Ranstrom stated that he didn't like it and that the
victims and "perpetrators" probably didn't like it either.
Ranstrom later ascertained that the caller was juror McCoy
and he informed the court and defense counsel of what had
transpired. The article to which juror McCoy referred had
appeared some months before in the Chinook, Montana,
newspaper. The article talked of the sexual abuse of
children in general terms and quoted several people,
including one of the prosecutors of this case, on the
problems of sexual abuse cases. The article made no mention
of the instant case.
McCoy's actions violated the instructions given by the
court at the start of the trial. The court had instructed,
among other things, that the jurors should not talk about
this case with anyone; that the jurors could not talk with
any of the witnesses or attorneys involved in the case; that
the jurors must not consult any books, encyclopedias or any
other source of information, unless the judge authorized them
to do so, and that the jurors should not read about the case
in the newspapers.
The defense moved for a mistrial, complaining mainly
about juror McCoy but also about juror Schaeffer. The court
denied the motion.
The ruling of the District Court on a
motion for mistrial is not to be lightly
disturbed. As we stated in Schmoyer v.
Bourdeau (1966), 148 Mont. 340, 420 P.2d
316:
"We hold that once the District Court has
considered the matter, however it is
raised, whether on a question for
mistrial or motion for a new trial this
court will not lightly disturb that
ruling. To overthrow it this court must
be shown by evidence that is clear,
convincing, and practically free from
doubt, of the error of the trial court's
ruling. 148 Mont. at 343, 420 P.2d at
317-18.
State v. Counts (Mont. 1984), 679 P.2d 1245, 1248, 41 St.Rep.
681, 686.
In Counts, the defendant moved for a mistrial because
of the possibility of juror misconduct. We stated,
In this state, if jury misconduct is
shown tending to injure the defendant,
prejudice to defendant is presumed.
However, this presumption is not absolute
and may be rebutted by testimony of the
juror showing facts which prove that
prejudice or injury did not occur.
(Citation omitted.)
Counts, 679 P.2d at 1248.
Here, juror McCoy testified (1) that she called
prosecutor Ranstrom to ask why the evidence of sexual abuse
was not heard in closed hearings; (2) that she found the
newspaper article accidentally; (3) that, prior to the close
of evidence, she had not formed or expressed any opinion as
to the guilt or innocence of the defendant; (4) that she was
not prejudiced either for or against the defendant; and
(5) that she could be a fair and impartial juror. Juror
Schaefer testified that he did not discuss the case in public
at a restaurant and that he had not formed an opinion as to
guilt or innocence prior to jury deliberations. Prosecutor
Ranstrom also testified that the phone conversation with
juror McCoy was basically limited to the propriety of
allowing sexual abuse evidence in hearings open to the
public. Lastly, we note that the newspaper article was
general in nature and made no mention of the instant case.
Arguably, the jury misconduct tends to injure the
defendant and, therefore, prejudice should be presumed.
However, we find that the District Court could properly
conclude that there was sufficient evidence to rebut any
presumption. We affirm the denial of the motion for mistrial
because there is not clear and convincing evidence of the
error of the court's ruling.
The second issue is whether the defendant received the
effective assistance of counsel where the State allegedly
failed to give timely notice of witnesses. Appellant relies
on State v. Sotelo (Mont. 19841, 679 P.2d 779, 782, 41
St.Rep. 568, 571, wherein this Court stated that where
counsel "has not been afforded sufficient time to prepare a
defense, the accused's specific rights have been violated and
his general right to a fair trial has been denied."
Ten days before trial, the State gave notice of its
intent to possibly call twelve additional witnesses. After
the defendant's objection, the State agreed not to call five
of those witnesses and pointed out that the defense had
already endorsed two of those witnesses. The court held a
conference call on the addition of witnesses and, at that
time, defense counsel stated, "I would say that my complaint
is primarily to [L.F. 1. " The State suggested that, "If L.F.
was withdrawn then and only used in possible rebuttal, then
you wouldn't have a problem. Am I incorrect?" The defense
counsel replied, "I would say that if she is withdrawn that
we probably could do it, yes .. . " Thereafter, the
prosecutor filed a letter stating that the prosecution would
not call L.F. as a witness and, therefore, the trial would go
on as scheduled. The above-cited transcript of the
conference call demonstrates that the defense appeared to
acquiesce in the decision not to continue the trial date.
The defense complains now of the prejudice resulting from the
late addition of witness Cortese.
In State v. Liddell (Mont. 1984), 685 P.2d 918, 924, 41
St.Rep. 1293, 1299, this Court stated, "[ilt is discretionary
with the District Court to allow additional witnesses . .
. "
In Liddell, the lower court allowed the prosecution to
endorse an additional witness on the day of trial. The
defense did not ask the court for a continuance and had
interviewed the witness prior to trial. We found no error in
adding the new witness.
Here, the State listed the new witnesses ten days
before trial. Moreover, the defense appeared to acquiesce in
the decision not to continue the trial. Therefore, we find
that the court did not abuse its discretion in allowing the
new witnesses.
The last issue is whether the court erred in allowing
the State to introduce evidence of defendant's prior
disciplinary acts toward the victim. The State introduced
evidence that, on dates prior to T.H. 's death, the defendant
(1) picked T.H. up by one arm and one leg while the child
was sleeping and moved her a short distance; (2) disciplined
T.H. by slapping her fingers and telling her not to cry;
(3) tied T.H.'s hands to the bed at night so the child would
not scratch her genitals; (4) made T.H. wear a dirty diaper
all evening; (5) kicked T.H. to wake her up and kicked her
butt up the stairs; (6) would not allow other people to
pick up or hold T.H., saying the child had been previously
abused; and (7) caused T.H. to drink vinegar from a bottle
to break her habit of using an infant's bottle.
Rule 404(b), M.R.Evid., provides:
Other crimes, wrongs, acts. 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.
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this
Court set forth substantive and procedural guidelines for
application of the Rule 404 (b), M. R. Evid. , exception. The
procedural guidelines are that:
"(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.
"(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."
State v. Brown (Mont. 1984), 680 P.2d 582, 584, 41 St.Rep.
852, 854-855, quoting Just, 602 P.2d at 274. In Just, this
Court also established a four element test for the
admissibility of evidence of other crimes or acts in criminal
prosecutions. Those elements are (1) similarity of crimes
or acts; (2) nearness in time; (3) tendency to establish a
common scheme or system; and (4) the probative value of the
evidence must not be substantially outweighed by the
prejudice to the defendant.
Defendant first argues that the State's "notice of
intent to introduce evidence" of prior acts was not timely
made. We disagree. The State served notice to the defendant
on April 1, 1986, six days prior to the April 7 trial date.
Shortly after the Just decision, this Court decided State v.
Case (Mont. 1980), 621 P.2d 1066, 37 St.Rep. 2056, wherein we
elaborated on the procedural guidelines for the introduction
of prior crimes or acts evidence. We stated,
First, the State must provide written
notice to the defendant, before - -
the case
is called for trial, that the evidence is
-
to be produced. (Emphasis added.)
Case, 621 P.2d at 1071. P e find that the State's notice was
7
timely.
The defense also complains that the State's notice did
not describe with sufficient specificity the prior acts of
defendant. The notice describes evidence of prior acts as
revealed by the statements of the defendant and six other
witnesses, "copies of which have previously been provided to
defense counsel." The defense acknowledged receiving the six
witnesses' statements well before trial and that they had
interviewed each of those witnesses. We find that the
defense was apprised with sufficient specificity of the
evidence to be introduced.
The final issue is whether the prior acts evidence was
admissible under the four part test enunciated in Just. The
court found that all four parts of the Just test were
satisfied. Initially, we note that
[wlhile failure of questioned evidence to
meet only one element of the Just test is
not sufficient to refuse its admission, a
decision to admit the evidence should not
be made lightly. The four factors must
be considered together.
State v. T.W. (Mont. 1986), 715 P.2d 428, 430, 43 St.Rep.
368, 371. The first element is the similarity of the prior
acts to the crime charged. We fail to see how certain of the
prior acts cited above (such as causing T.H. to drink vinegar
from a bottle and making her wear a dirty diaper for one
evening) can be considered similar to the violence which
resulted in the child's death. Other acts arguably display a
harsh disciplinary attitude which foreshadows, and is
minimally similar to, the fatal violence. We find that the
similarity requirement is not clearly met in this case.
The second guideline, nearness in time, is clearly met
in this case. All of the events occurred within one year of
T.H.'s death.
Under the third Just guideline, we find that the
disputed evidence does tend to establish a common scheme,
plan, or system, i.e., a system of unusually harsh discipline
of the child. In State v. Powers (Mont. 1982), 645 P.2d
1357, 39 St.Rep. 989, four members of a church sect were
convicted of deliberate homicide in the death, by
disciplinary beatings, of the son of two of the defendants.
The trial court allowed evidence of prior acts of violence
against the victim and other children committed by members of
the church other than the defendants. We ruled that the
evidence was properly admissible, stating,
Evidence of the acts by church members
other than defendants, and acts by the
defendants against children other than
the victim, show the common design toward
disciplining children by beatings arising
out of the church policy. It ties these
defendants to that policy by showing the
similarity of methods and discipline
practiced by church leaders and these
defendants.
The evidence at issue here provides proof
of these defendants' motive for
inflicting the punishment on the victim
and the plan and intent behind the
treatment of him.
Powers, 645 P. 2d at 1363. Here, the evidence of prior acts
arguably showed the defendant1 s motive (discipline) in
inflicting the injuries which resulted in T.H.Is death and
showed a system of excessively harsh discipline.
We also find that the fourth Just element is met here.
In the unique circumstances of this case, where the
prosecution had to rely heavily on circumstantial and
indirect evidence because of the nature of the crime, the
probative value of the disputed evidence was not
substantially outweighed by the prejudice to the defendant.
Given that the last three elements of the Just formula are
present, we hold that the disputed evidence was properly
admissible.
We further hold that the disputed evidence was also
admissible under State v. Sigler (Mont. 1984), 688 P.2d 749,
41 St.Rep. 1039, independent of Rule 404(b) and the Just
formula. Sigler was convicted of beating a nineteen month
old child to death. In Sigler, we condoned the introduction
of evidence of Sigler's previous violent disciplinary acts,
including "hard spankings," cigarette burns, slapping and
kicking the child. We held that the evidence was admissible
under Just and upon other, independent grounds. We stated:
Evidence of other crimes, wrongs or acts
is an exception to the general rule that
evidence of a person's character is not
admissible for the purpose of proving
that he acted in conformity therewith on
a particular occasion. Rule 404
~ . ~ . k v i d .A trait of character - - -
is to be
distinauished from habit.
J
"A habit is a
person's regular response to a repeated
specific situation." Rule 406, M.R.Evid.
Habit or routine practice may be proved
by testimony in the form of an opinion or
by specific instances of conduct
sufficient in number to warrant a finding
that the habit existed or that the
practice was routine.
"Character may be thought of as the sum
of one's habits though doubtless it is
more than this. But unquestionably the
uniformity of one's response to habit is
far greater than the consistency with
which one's conduct conforms to character
or disposition. Even though character
comes in only exceptionally as evidence
of an act, surely any sensible man in
investigating whether X did a particular
act would be greatly helped in his
inquiry by evidence as to whether he was
in the habit of doing it." McCormick on
Evidence 5 162, at 341.
Under Rule 406, M.R.Evid., the acts
habitually performed by Sigler in
response to his perceived need for
discipline of the child were admissible.
As a matter of habit, his discipline of
the child was excessively harsh.
(Emphasis added.)
Sigler, 688 P.2d at 7 5 2 - 7 5 3 . The disputed evidence here was
also admissible under Rule 406, M.R.Evid., as tending to show
the defendant's habitually excessive discipline of the child.
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A£ firmed . ,L,'
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Justice '
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Justice
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sitting in place of former
Justice Frank B. Morrison, Jr.