No. 86-407
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
RONNIE JEAN HOWELL,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary G. Doran, Kalispell, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Ted 0 Lympus, County Attorney, Kalispell, Montana
.
Dennis J. Hester, Deputy County Attorney, Kalispell
Submitted: December 3 1 , 1 9 8 6
Decided: March 1 8 , 1987
Filed: MAR 1 8 1987'
Clerk
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
Appellant, Bonnie Jean Howell, appeals from a conviction
in the District Court of the Eleventh Judicial District Court
of Flathead County of one count of felony theft and two
counts of misdemeanor theft.
We reverse and remand.
The decisive issue raised on appeal is whether the
District Court erred when it allowed evidence of another
alleged crime after it granted defendant's motion in limine
to exclude such evidence.
The defendant, Bonnie Jean Howell was charged with one
count of felony theft and two counts of misdemeanor theft.
The felony theft involved five pieces of jewelry taken from
the home of Gary and Martha Purdy. One misdemeanor theft
involved a lavender sweater taken from the home of Virginia
Searight; the other, a brooch taken from the home of Deanna
Irriger.
Mrs. Howell was employed as a housekeeper in all three
homes. The initial complaint concerning the thefts arose
from the Purdys who opened a package, which the defendant had
delivered to their UPS shipping center, hoping to find the
missing jewelry. The package contained the Christmas tree
brooch and the sweater which were the subject of the
misdemeanor counts, but not the missing jewelry. The package
contained other items, but defendant was only charged with
stealing the sweater and the Christmas tree brooch. The
record does not disclose why the defendant sent the package
through the Purdyls shipping service, nor why there was no
objection made to the Purdys opening it. Mrs. Purdy
testified that the package was opened by her husband who
believed that the missing jewelry would be found. The
jewelry was not in the package, nor was it found when the
police searched the defendant's home.
Prior to trial, but after jury selection, the defendant
filed a motion in limine to exclude evidence of other alleged
crimes or wrongful acts not specifically charged in the
information. The court granted the motion because the
defendant was not notified of the State's intention to
introduce such evidence. At the close of the State's case
the defendant moved to dismiss the felony charge for lack of
sufficiency of the evidence. That motion was denied. The
defendant was found guilty of all three charges. She
appeals.
Did the court err when it allowed the introduction of
evidence of another alleged wrongdoing contrary to its order
on defendant's motion in limine to exclude that evidence? We
hold that it did err.
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.
Rule 403, M.R.Evid. states that otherwise 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,. . ."
As we said in State v. Stroud (1984), 683 P.2d 459, 41
St.Rep. 919, the substantive and procedural requirements for
admitting evidence of other crimes or wrongs have been well
established in Montana. "The four substantive requirements
are (1) similarity between the crime charged and the
previous crimes, wrongs or acts; (2) nearness in time
between the charged crime and the previous crimes, wrongs or
acts; (3) tendency to establish a common scheme, plan or
system; - (4) determination that the probative value of the
and
evidence is not substantially outweighed by the prejudice to
the defendant . .. In addition, three procedural guidelines
must be followed: (1) notice to the defendant prior to
trial that evidence of other crimes, wrongs or acts will be
introduced; (2) an admonition by the judge to the jury when
the evidence is introduced that it is admitted solely for one
or more of the accepted purposes stated in Rule 404 (b); and
(3) a cautionary jury instruction to the same effect,
providing in unequivocal terms that the evidence is admitted
for the purpose earlier stated and not to try and convict the
defendant for prior wrongful conduct." 683 P.2d at 465
citing State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d
631, 634; State v. Just (1979), 184 Mont. 262, 274, 602 P.2d
957, 963-64.
Prior to trial the state must provide written notice to
the defendant that the evidence of "other crimes" is to be
produced. Notice must include a statement of the purpose for
which the evidence is to be presented. State v. Gray (19821,
197 Mont. 348, 352, 643 P.2d 233, 236; State v. Case (Mont.
1980), 621 P.2d 1066, 1071, 37 St.Rep. 2057, 2063.
The defendant was not notified of the State's intention
to introduce evidence of other crimes committed by the
defendant. With Just as its authority the District Court
properly granted defendant's motion in limine to exclude all
"evidence items allegedly taken by the defendant which are
not specifically named in the informations. . ." under which
defendant Howell is charged.
Two items, a lavender sweater and a Christmas tree
brooch, which are the basis of the misdemeanor charges, were
found in a UPS package sent by the defendant. The package
contained other items which had no connection with the
present charges. During trial, in spite of its ruling, the
court allowed the UPS package and it's entire contents into
evidence. The jury was admonished by the court on several
occasions during the course of the trial regarding how to
view this evidence of other wrongful acts.
The State argues that the admission of these items was
proper under Montana's transaction rule, and that everything
leading up to, including and following the event are included
in the scope of the transaction. The State also argues that
the items not mentioned on the charging documents are part of
the res gestae, or inextricably or inseparably linked with
the crime charged as part of the corpus delicti and can
therefore be properly admitted into evidence. State v. Riley
(1982), 199 Mont. 413, 425-426, 649 P.2d 1273, 1279. Given
that the other items in the UPS package are part of the res
gestae and transaction, the State contends that the
requirements of Just do not apply.
We disagree. The introduction of items contained in a
package along with items which are allegedly stolen does not.
fall under prior wrongful acts inextricably or inseparably
linked with the crime charged. The evidence falls under acts
which are wholly independent of the crime charged and the
Jenson-Just rule does apply.
As the State argues, the jury was entitled to know the
conditions under which the lavender sweater and Christmas
tree brooch were found. The fact that they were found in a
package being shipped by the defendant may tend to prove the
elements of a crime, but there is no logical reason why it
was necessary to introduce - of the items in the package.
all
Introduction of the package alone adequately established the
condition under which the items were discovered.
Introduction of the other items confused the jury and was
therefore prejudicial to the defendant. The record shows
that admonitions to the jury by the judge along with a
cautionary jury instruction was not sufficient to overcome
this prejudice. In addition to the introduction of the other
items in the UPS package, testimony by three of the State's
witnesses alluded to items not mentioned on the information
which may have been stolen or missing. The confusion of the
jury is evidenced by the following courtroom conversation:
The Court: Members of the jury, how are you doing,
do you feel alright? Okay, your next witness. Was
there a head that shook no? Is there anyone here
that would like a recess?
Juror A: No, I thought there were three items that
were pertinent and you mentioned only two. Did you
mention something pink that was--
The Court: Well, let me hack up and with the
consent of counsel reiterate what I said earlier,
that the Information charging Misdemeanor Theft in
this case charged the Defendant, Mrs. Howell, with
having taken a lavender sweater and a brooch, or
item of jewelry that is shaped like a Christmas
tree.
Juror A: I thought it was a pink top.
The Court: Well, there were a lot of other things
in there.
Juror A: I thought earlier it was a pink top that
was mentioned as one of these items.
Mr. Doran: I would ask for a brief conference out
of the presence of the jury.
Juror B: I have some four to eleven items there
and they have, I think, jurisdiction on two--, is
that right?
The Court: L don't understand your question but I
will do my very best to clarify it.
Juror B: Well, we have these two items that was in
the package and--
Juror C: All of this was in that package--
The Court: Sir, give me a chance to explain-- we
are going to take a recess and we will be in recess
subject to the Court's call.
The Just requirements are crucial in protecting a
defendant's due process rights. In this case the defendant
was prejudiced. She relied upon the court's ruling with
regard to her motion in limine and was unprepared to defend
the introduction of evidence of other wrongful acts. The
District Court committed error, under it's order, in allowing
evidence as to the other items in the UPS box to be presented
to the jury. This was not harmless error.
The federal constitutional test of harmless error
is whether there is a reasonable possibility that
the evidence complained of might have contributed
to the conviction.
State v. Roberts (Mont. 1981), 633 P.2d 1214, 1218, 38
St.Rep. 1551, 1555 citing Fahy v. Connecticut (19631, 375
U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.
In this case, the District Court's failure to adhere to
its own ruling was an abuse of its discretion and in error.
The error was prejudicial and harmful to the defendant.
'
I
We reverse and remand.
We Concur: H
,