NO. 87-283
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
STACY GENE HALL,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
J. Dirk Beccari, Missoula, Montana
For Respondent :
Hon. Fike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana; Ed McLean, Deputy County Attorney
Submitted on Briefs: July 14, 1988
Decided: September 15, 1 9 8 9
Filed: SEP 1 5 1988'
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Stacy Gene Hall appeals his jury conviction of felony
theft, in violation of § 45-6-301, MCA. Appellant was
charged by information with three counts of theft of radio
equipment and- tried in the District Court of the Fourth
Judicial District, Missoula County, Judge Douglas G. Harkin
presiding. From the trial of early October 1985, the jury
did not return a verdict and a mistrial was called. A second
jury trial was scheduled for September 25, 1986. In that
trial, Hall was found guilty of all three counts of theft and
was sentenced to three ten-year terms to run consecutively,
with seven years suspended on each term.
We affirm.
The issues on appeal are:
1. Whether the District Court properly admitted evi-
dence of other acts.
2. Whether the District Court properly admitted appel-
lant's first trial testimony in a second trial at which
appellant did not testify.
3. Whether the doctrine of cumulative error is appli-
cable in the case on appeal.
On January 22, 1985, Missoula police searched the
residence of appellant pursuant to a search warrant and found
radio equipment which had been reported as stolen from three
Missoula radio stations. The equipment consisted of a disco
unit with two turntables, a control board set in a portable
cabinet, a cartridge rack, a cartridge eraser/splicer-finder,
a cartridge recorder player, microphones, an adaptor, and
numerous two-track cartridges. The pieces had been taken
from KGVO radio station, KUFM, and FGRZ radio. The search
warrant was issued when the equipment was identified in a
picture of Stacy Hall and his low power radio station
featured in the Missoulian newspaper.
At the October 3, 1985 trial, the jury was unable to
reach the necessary unanimous decision on any of the counts
for which the judge declared a mistrial and set a date for a
second trial.
The defendant testified at the first trial but chose to
refrain from testifying in his second trial declaring his
right against self-incrimination under the Fifth Amendment.
The State introduced into evidence portions of Hall's testi-
mony from the first trial. The District Court allowed the
evidence pursuant to Rule 801, M.R.Evid. Defendant objected
alleging that the testimony was not an admission by a
party-opponent according to Rule 801 (d)(2), M. R.Evid. Fur-
thermore, the State introduced the testimony from the first
trial to rebut testimony of defendant's witness. Appellant
contended that this was an improper use of Hall's former
testimony. Defendant also objected on the grounds that the
new trial nullified any previous testimony of Hall. However,
the District Court ruled that the testimony was admissible.
Hall was convicted on all three counts of felony theft
and on December 15, 1986, was sentenced to thirty years in
the Montana State Prison, with all but nine years suspended.
Appellant first contends that the District Court im-
properly admitted evidence of appellant's others acts. The
State attempted to introduce evidence of a burglary committed
on August 4, 1984, to which Hall plead guilty. The item
taken in the burglary was a stereo cartridge. The State
introduced this evidence because the stereo cartridge was
compatible with the radio equipment taken from the three
radio stations for running a low power radio station.
The requirements for proper admittance of prior acts
evidence is found in State v. Just (1979), 184 Mont. 262, 602
P.2d 957. At the procedural level, the party introducing
evidence of prior acts must give advance notice of its intent
to offer the prior acts into evidence. At the time that the
evidence is offered, the judge must warn the jury that the
prior acts evidence is admitted not to prove the defendant is
of bad character but rather to show a common scheme, plan, or
design by the defendant. Third, before jury deliberations, a
special instruction is given to the jury to admonish them of
the proper purpose for which the evidence is to be offered.
Once the State has fulfilled the requirements, the
District Court applies the four-part test espoused in Just,
184 Mont. at 269, 602 P.2d at 961:
1. Similarity of crimes or acts;
2. nearness in time; and
3. tendency to establish a common
scheme, plan or system; and
4. the probative value of the evidence
is not substantially outweighed by the
prejudice to the defendant.
Appellant contends that the burglary and the theft are
not similar crimes. Although the charges are distinct, the
acts are similar. Both were the illegal conversion of radio
equipment, compatible for use in a low power radio station.
In State v. Tecca (Mont. 1986), 714 P.2d 136, 43 St.Rep. 264,
we held that the acts come within the Just exception if they
are sufficiently similar to sustain admission. In State v.
Clausen (Mont. 1987), 740 P.2d 679, 44 St.Rep. 1308, where
the defendant was charged with possession of marijuana,
psilocybin and magic mushrooms, evidence of prior acts of
selling cocaine was admitted. We declared that the differ-
ence in the types of drugs and their quantities were
irrelevant--the similarity was in the defendant's actions.
In the case on appeal, although the charges were dif-
ferent, the defendant's actions of illegally taking radio
equipment were the same. The acts here are sufficiently
similar.
The second Just requirement is nearness in time. Since
there was a time span of only six months between the acts,
remoteness is not at issue.
The third tier of the Just test is whether the prior
acts tend to show a common scheme, plan or system. Both the
equipment taken in the theft and the equipment taken in the
burglary are suitable for use in a low power radio station.
The equipment taken was similar. In both instances, appel-
lant went to the business where the equipment was located,
acting as if he was on official business, in order to gain
entrance to take the equipment. This tends to show a common
scheme, plan, or system.
Although there may be some showing of prejudice towards
appellant by admitting evidence of prior acts, the probative
value outweighs the prejudicial effect because the acts are
similar, are near in time, and show a common scheme. It is
important to look at all four factors of the Just test when
determining the admissibility of prior acts evidence.
... failure of questioned evidence to
meet only one element of the Just test
is not sufficient to refuse its admis-
sion, 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.
We hold that evidence of prior crimes or acts by Hall
was properly admitted.
The second issue is whether the District Court properly
admitted defendant's testimony from the first trial in the
second trial at which the defendant did not testify. Section
46-16-701, MCA, reads:
A "new trial" is a reexamination of the
issue in the same court before another
jury after a verdict or finding has been
rendered. The granting of a new trial
places the parties in the same position
as if there had been no trial.
In conjunction with $5 46-16-701, S 46-16-702 provides in
pertinent part:
(1) Following a verdict or finding of
guilty, the court may grant the defen-
dant a new trial if required in the
interest of justice.
Appellant contends that S 46-16-701 is applicable and
that in the case of the second trial here, no testimony from
the first trial can be used because it is a nullity.
The statutes show that a new trial may be granted only
where there has been a "finding" or a "verdict of guilty" in
the former trial. Black's Dictionary defines a verdict as:
"The formal decision or finding made by a jury, . . ."
A
"finding" is defined as: "A decision upon a question of fact
reached as the result of a judicial examination or investi-
gation by a court, jury, ... etc." A hung jury is defined
in Black's as: "A jury so irreconcilably divided in opinion
that they cannot agree upon any verdict. " Black's - -
Law Dic-
tionary (5th ed. 1979).
Appellant contends that there was a "finding" in the
previous trial and S$ 46-16-701 and -702 apply, preventing
former testimony from being admissible. However, it is clear
that there was no finding. The hung jury and mistrial do not
meet the requisite standards of finding or verdict in
§§ 46-16-701 and -702. Therefore, we hold that the statutes
are not applicable. Sections 46-16-701 and -702 are concerned
with a new trial. in the interests of justice only for
defendants who have been convicted. New trials where prior
testimony is not allowed must be granted on a limited basis,
limited by S S 46-16-701 and -702 after a jury verdict of
guilty or a finding of guilty by the court.
The District Court made its finding on the grounds that
the former testimony by Hall was an admission of a
party-opponent within the confines of Rule 801, M.R.Evid.
Rule 801 (d) (2) provides in pertinent part:
(d) Statements which are not hearsay. A
statement is not hearsay if:
(2) Admission by party-opponent. The
statement is offered against a party and
is (A) his own statement, in either his
individual or a representative capacity,
or ( B ) a statement of which he has
manifested his adoption or belief in its
truth ...
The State introduced the former testimony of Hall as an
admission by Hall regarding his possession of the stereo and
radio equipment in question. Statements made by a declarant
who is a party-opponent are simply not classified as hearsay,
but are admissions by him which are used later against his
interest.
The statements made by Hall are reliable because they
were made voluntarily, under oath, and with the opportunity
of cross-examination. At the time that the appellant testi-
fied, he was represented by counsel and voluntarily took the
stand. Once the defendant took the stand voluntarily, under
oath, and subject to cross-examination, he made a knowing and
intelligent waiver:
A defendant who chooses to testify
waives his privilege against compulsory
self-incrimination with respect to the
testimony he gives, and that waiver is
no less effective or complete because
the defendant may have been motivated to
take the witness stand in the first
place only by reason of the strength of
the lawful evidence adduced against him.
Harrison v. United States (19681, 392 U.S. 219, 222, 88 S.Ct.
2008, 2010, 20 L.Ed.2d 1047, 1051. When appellant makes
admissions, whether down at the local tavern or under oath,
the statements can be used against his interest at later
proceedings. The fact that the admissions have been made
under oath bolsters their reliability. Therefore, under Rule
801(d) ( 2 ) , M.R.Evid., in testifying at the first trial, the
appellant made admissions which were properly admitted by the
District Court in the second trial.
Applicable to the question of former testimony intro-
duced into evidence at subsequent trials is Rule 804,
M.R.Evid. Rule 804 provides, in pertinent part:
Rule 804. Hearsay Exceptions: declarant
unavailable.
(a) Definition of unavailability. Un-
availability as a witness includes
situations in which the declarant:
(1) 2 exempted by ruling - - court
-
. -of the . -
on - ground - privilege from testify-
- the of
ing concerning the subject matter - -
of his
statement: [emphasis supplied]
(b) Hearsay exceptions. The following
are not excluded by the hearsay rule if
the declarant is unavailable as a
witness:
(1) Former testimony. Testimony given as
a witness at another hearing of the same
or a different proceeding, ... (B) in
criminal actions and proceedings, if the
party against whom the testimony is now
offered had an opportunity and similar
motive to develop the testimony by
direct, cross, and redirect examination.
Because Hall chose to not testify he was declared
unavailable by the court as a matter of privilege. As an
unavailable witness, his former testimony can be used in the
second trial where he had the opportunity to decide whether
or not to testify.
Whether testimony of the defendant from the previous
trial may be used at the second trial is a question of first
impression before this Court. There are no Montana cases
which specifically address the use of prior testimony in
subsequent trials. The Court of Appeals from the District of
Columbia discussed the issue in Edmonds v. United States
(D.C. Cir. 1959), 273 F.2d 108, 112-113, cert. denied, 362
U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012:
It is generally held, unless a statute
directs otherwise, that a defendant in a
criminal case who takes the stand in his
own behalf and testifies without assert-
ing his privilege against self-incrimi-
nation thereby waives the privilege as
to the testimony given so that it may be
used against him in a subsequent trial
of the same case. The fact that the
defendant does not take the stand at the
second trial does not prevent the use of
his testimony given at the former trial,
if it would otherwise be admissible.
Other federal cases have followed this general rule: United
States v. Anderson (4th Cir. 1973), 481 F.2d 685, aff'd, 417
U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20; London v. Patterson
(9th Cir. 1972), 463 F.2d 95, cert. denied, 411 U.S. 906, 93
S.Ct. 1531, 36 L.Ed.2d 196; Ayres v. United States (5th Cir.
1952), 193 F.2d 739; Warde v. United States (D.C. Cir. 1946!,
158 F.2d 651; Heller v. United Cases (7th Cir. 1932), 57 F.2d
627, cert. denied, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298
(dictum).
A valid waiver of Fifth Amendment rights requires that
the decision to testify be an intelligent decision with
knowledge of its consequences.
... when a witness voluntarily testi-
fies, the privilege against self-incrim-
ination is amply respected without need
of accepting testimony freed from the
antiseptic test of the adversary pro-
cess. . . . Such a witness has the
choice, after weighing the advantage of
the privilege against self-incrimination
against the advantage of putting forward
his version of the facts and his reli-
ability as a witness, not to testify at
all.
Brown v. United States (19571, 356 U.S. 148, 155, 78 S.Ct.
In the case here on appeal, Hall was represented by
counsel and made a knowing waiver of his Fifth Amendment
rights when he voluntarily chose to testify in the first
trial. He was advised of his rights and therefore made a
knowing and intelligent decision to testify. " [Olnce a
defendant waives this privilege and testifies then his testi-
mony can be used against him in a subsequent trial." State v.
Haggard (Idaho 1971), 486 P.2d 260, 263. See also: People
v. Arrington (Colo.App. 1983) 682 P.2d 490; People v. Carlson
(Colo.App. 1983) 677 P.2d 390, aff'd, (Colo. 1986) 712 P.2d
1018; People v. Downer (Colo. 1976) 557 P.2d 835; State v.
Peele (Wash.App. 1973) 516 P.2d 788. "[Tlhe defendant's
testimony at his first trial was clearly admissible at his
second trial . . . [A] judicial confession or admission
connected with the crime made in court is admissible." State
v. Stoneman (Ariz. 1977), 566 P.2d 1340, 1343.
Appellant also contends that the former testimony was
improperly admitted as rebuttal testimony. Hall claimed he
received the radio equipment from PGL Company in New York.
Other witnesses stated that Hall reported other means of
acquiring the equipment. Testimony of appellant in the prior
prosecution is properly admissible despite the fact that it
was used as rebuttal testimony. United States v. Houp (8th
Cir. 1972), 462 F.2d 1338, cert. denied, 409 U.S. 1011, 93
S.Ct. 456, 34 L.Ed.2d 305, reh. denied, 409 U.S. 1119, 93
S.Ct. 918, 34 L.Ed.2d 704.
We hold that the testimony of Hall in the first trial
was properly admitted in the second trial according to Rul-es
801 and 804, M.R.Evid., and federal and state precedent.
The third issue is whether the doctrine of cumulative
error is applicable in this appeal. The general rule of
cumulative error is that reversal is required if a number of
errors are accumulated which prejudice defendant's right to a
fair trial. State v. Meidinger (1972), 160 Mont. 310, 502
P.2d 58; State v. McKenzie (1978), 177 Mont. 280, 581 P.2d
1205.
Appellant contends that the prejudice to Hall by allow-
ing prior acts evidence and his former testimony results in
cumulative error. We have held the evidence of prior acts
admissible and the former testimony properly admitt.ed.
Therefore, there is no cumulative error.
Affirmed.
W e concur:
Mr. J u s t i c e W i l l i a m E . Hunt, S r . , concurring:
I concur i n t h e r e s u l t but n o t i n a l l t h a t i s s a i d i n
t h e majority opinion.