No. 8 8 - 2 7 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
CODY MIX,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial gistrict,
i
In and for the County of Rosebud,
The Honorable Alfred R . Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James G. Hunt, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Peter Funk, Asst. Atty. General, Helena
Marvin Quinlan, County Attorney, Forsyth, Montana
Gary A. Ryder, Deputy County Attorney, Forsyth, Montana
Submitted on Briefs: July 7, 1 9 8 9
Decided: October 16, 1989
Filed:
Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from the Sixteenth Judicial District,
Rosebud County, Montana, of a conviction of deliberate
homicide, a felony, following a jury trial. The appellant
appeals his sentence of 100 years for the deliberate homicide
and an additional ten-year sentence for the use of a weapon
in the commission of the crime. We affirm.
On September 2, 1987, the body of Sarah Sloan was found
on the banks of the Yellowstone River near the town of
Forsyth, Montana. Investigating officers found that the
victim's body had suffered numerous chest wounds. In
addition they found considerable evidence around the body
including a fresh tire track, a fresh shoe print, a bloody
fingerprint, and drag marks which indicated that the victim's
body had been dragged from a vehicle to the spot on the river
bank.
Because the romantic relationship between the victim
and the appellant was well known in the small town of
Forsyth, officers went to the appellant's residence. There
they observed the tires on the appellant's car were similar
to the tire tracks found by the victim's body. The officers
also observed what appeared to be blood on the ground near
the car. As a result of this investigation, the appellant
was questioned early that afternoon. He was later released
by local officials. On September 4, 1987, a search warrant
was obtained for the appellant's residence and car. As a
result of this search, and based upon the observations of the
investigating officers, the appellant was arrested later that
day and charged with deliberate homicide. Following his
arrest, the appellant maintained his innocence, claiming he
and the victim had been drinking at several bars, b.ut they
had parted company in the early hours of September 2, 1987,
following a minor argument.
On September 21, 1987, counsel for the appellant filed
a Notice of Intent to rely upon the defense of mental disease
or defect. Thereafter the appellant was committed for
psychiatric examination. After undergoing several months of
pretrial psychiatric evaluation, the appellant returned for
trial. He testified at trial that some time in January of
1988 he began to regain his memory. At that time, he
admitted he caused the death of Sarah Sloan but claimed he
acted in self-defense.
The evidence indicates appellant and Sarah had visited
several bars during the evening of September 1, 1987, before
they returned to his address about 1 o'clock the following
morning. Appellant testified that in preparing to go to bed,
he was in the process of taking off his shoes when Sarah
attacked him with a plastic fan base. He further testified
that he went out of his bedroom and down the hall as Sarah
continued to hit him about the head and neck. Appellant
testified he proceeded to the kitchen where he picked up a
knife from the kitchen sink and stabbed her in the chest. He
further testified that after the initial stabbing, Sarah
continued to attack him in the same manner, and he continued
to stab her until she collapsed.
At trial, Dr. K.H. Mueller, the pathologist who
performed the autopsy, testified that the victim's death was
caused by five stab wounds to her chest area. He testified
one of the wounds was inflicted with enough force to pierce
the victim's sternum and another was deep enough to penetrate
her spine. In addition, Sarah had multiple blunt force
facial injuries and a defensive knife wound on one hand.
Appellant testified at trial that after the stabbing,
he dragged Sarah out to his car, drove to an area by the
Yellowstone River, dumped Sarah's body and returned to his
home. He testified he then cleaned the kitchen floor, rinsed
off the knife used to kill Sarah and went to bed.
Various law enforcement officials who testified stated
that some twelve hours after the alleged confrontation, the
appellant showed no signs of having been in a life-and-death
struggle and that he made no mention of Sarah's attack on the
night of the crime. In addition, the appellant's home showed
no signs of a violent struggle. An investigating officer
testified that the plastic fan base allegedly used by Sarah
in the claimed attack on the appellant did not contain her
fingerprints. Appellant testified at trial that the fan base
was essentially undamaged.
During the trial, appellant attempted to establish that
Sarah was an aggressive, domineering and impulsive woman.
The State submitted rebuttal testimony to establish that the
appellant had beaten Sarah in the past and that she was
afraid of his propensity for violence.
Five issues are presented on appeal:
1. Whether the trial court committed reversible error
when it did not grant appellant's motion for mistrial based
on the prosecution's opening statement.
2. Whether the trial court committed reversible error
when it allowed three prosecution rebuttal witnesses to
testify to an alleged prior act of appellant.
3. Whether the trial court committed reversible error
when it denied the admission of certain medical records of
the victim.
4. Whether the trial court committed reversible error
when it denied the admission of a statement allegedly made by
the victim.
5. Whether the trial court committed reversible error
when it allowed the prosecution's forensic scientist to
testify as an expert about the velocity and direction of
blood splatters found in appellant's kitchen, and when it
allowed an investigating officer to testify that the location
of the victim's death evidenced a struggle.
As to the first issue, the appellant alleges that three
improper comments were made by the deputy county attorney,
comments which were highly prejudicial, made in bad faith and
each statement was so prejudicial to the appellant that a
mistrial was warranted. The statements referred to, made by
the deputy county attorney in his opening statement, are as
follows:
On September 2nd, 1987, the body of
Sarah Sloan was found discarded along the
banks of the Yellowstone River, west of
Forsyth.
That very day, the Defendant was
arrested for murder and twice denied any
involvement. On January 15th, 1988, for
the first time, he filed a notice of self
defense. This was approximately 135 days
after the body of Sarah Sloan was found.
To be very honest with you, I was
surprised when [appellant's attorney]
told the jury, during selection ...
At this point appellant's attorney objected, to which the
District Judge sustained the objection and advised that
"Counsel will be restricted to their opening statement as to
facts that they intend to prove and not what Counsel was
surprised at."
The second comment cited by appellant as the basis for
reversal, was also stated during the prosecution's opening
statement:
The man sitting at the Defendant's table,
at this point, is presumed to be
innocent. He has the right to a jury
trial, he has a right to remain silent,
he has the right to a court appointed
counsel.
The third statement made by the counsel for the
prosecution during his opening statement, to which
appellant's attorney objected and which is the final basis of
claimed error, is the following:
After reviewing this evidence, you
will have decisions to make, whether
this Defendant is mentally ill, you'll
be instructed on the law in that area.
Whether the Defendant was acting .. .
It is appellant's contention that the first statement
regarding the delayed notice of a theory of self-defense is
both an improper comment on the appellant's silence and is
prohibited by Griffin v. California (1965), 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106; and Chapman v. California (19671,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. It is appellant's
position that any reference made to a delay of notice of
filing a theory of defense; the fact that he had court
appointed counsel; the defense of mental defect or disease;
and finally the cumulative effect of improper statements made
during trial, all necessitate a reversal of his conviction.
In State v. Johnson (Mont. 1988), 760 P.2d 760, 45
St.Rep. 1653, this Court spoke to the problem of improper
remarks made by counsel during trial. The Johnson opinion
reviewed Griffin, supra, and a number of cases which
previously discussed this problem in Montana including State
v. Gladue (1984), 208 Mont. 174, 677 P.2d 1028; State v .
Wilkins (Mont. 1987) 746 P.2d 588, 44 St.Rep. 1794; and State
v. Gonyea (Mont. 1987), 730 P.2d 424, 44 St.Rep. 39. In
those cases this Court has warned the prosecution and
discussed the risk of reversal in the event the prosecution
makes improper comments either in opening statements or in
witness examinations. The appellant notes, and we agree,
that only overwhelming direct evidence against a defendant
prevents these kinds of remarks from becoming reversible
error.
The comments by the prosecution were improper and
unnecessary to the trial of this case. While the record does
not suggest any intentional comment was made regarding the
change of defense or the silence of the defendant, we
conclude the remarks were objectionable. In view of the
compelling evidence, and with no significant contradictory
evidence, we find there was no need for any comments of the
nature referred to above. We again admonish counsel not to
comment, even indirectly, on the silence of the accused.
Having found these remarks objectionable, we must
consider the Chapman rule to determine if the error was
harmless beyond a reasonable doubt. The testimony evidence
submitted by the State, including the extensive and
unrebutted testimony of all of the witnesses, including the
testimony of the appellant, clearly established the
appellant's guilt. We will not address all of the evidence
of this crime. The evidence clearly indicates an unprovoked
attack on Sarah, and that in all probability, any one of the
five stab wounds could have caused her death. We emphasize
here that the evidence of appellant's guilt is overwhelming.
The District Court gave numerous instructions during the
course of the trial concerning the State's burden of proof.
The admonition to the jury concerning the remarks made
following the motion for mistrial shows the trial court's
effort to impress upon the jury the right of the defendant to
remain silent.
We conclude that the evidence in this case was so
overwhelming that the comments can be classified as harmless
error beyond a reasonable doubt. In so doing we uphold the
District Court's denial of a motion for mistrial.
The second issue is whether the District Court erred
when it allowed rebuttal witnesses to testify to an alleged
prior act of appellant.
As part of his defense, the appellant testified that
his general character is one of a peace loving man who found
it necessary to kill Sarah Sloan because she had viciously
attacked him without provocation. As a result of the extreme
force used by Sarah, the appellant claimed it was necessary
for him, in self-defense, to pick up a knife and stab her
five times to protect his own life. Anticipating this
defense, the State filed a Just notice in advance of the
trial, (State v. Just (1979), 184 Mont. 262, 602 P . 2 d 9571,
and a precautionary instr.uction was given at the time of the
introduction of the claimed improper evidence, and another
precautionary instruction was read to the jury at the end of
the trial.
Testimony objected to by appellant was that of the
prosecution's rebuttal witness, Lois Taylor:
Q Do you recall an incident on May 20,
1987, concerning papers that she [Sarah]
had drawn up?
A I don't know what date it was but I
know that I had -- she come into the
cafe with some papers. There ' d been
something happen the night before, the
police had been called. So she came in
and she had her three days off and she
came in and she was very upset and she
said, "Lois, would you --
[Defense counsel] : Objection, hearsay.
Q Okay, Lois, if you could just explain
what she did --
A Okay, she handed me some papers and
asked if I would take --
[Defense counsel] : Obiect as hearsay.
THE COURT: Anything that she said is
hearsay and the objection will be
sustained.
Our review of the transcript shows this is the only
statement, within the meaning of Rule 801, M.R.Evid., made by
any of the witnesses identified by the appellant as having
testified to hearsay. The testimony at issue was properly
admissible as evidence of "other crimes," and was properly
admissible under Rule 404(a) ( I ) , M.R.Evid., and did not
include inadmissible hearsay.
The objection of the defense was first apparent and
contests basically what was admitted as evidence, claiming
that the evidence of "other crimes" should have been
excluded; second the appellant contests the evidence was
hearsay and should have been excluded.
This Court has long recognized the principle embodied
in Rule 404(b), M.R.Evid., which provides:
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 - however, be admissible for other
may,
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake - accident.
or (Emphasis add)
de.
The admissibility of such evidence is also governed by
specific substantive and procedural rules. Those substantive
requirements are: (1) similarity between the crime charged
and the previous crime testified to; (2) nearness in time
between the crimes charged and the previous crime;
( 3 ) tendency to establish one of the purposes detailed in
Rule 404(h), Montana Rules of Evidence; and (4) determination
that the probative value of the evidence outweighs any
potential prejudice to the defendant. State v. Jensen
(1969), 153 Mont. 233, 239, 455 P.2d 631, 634.
The procedural requirements are: (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
providing that the evidence is admitted for the purpose
earlier stated and not to try and convict the defendant for
prior wrongful conduct. Just, 184 Mont at 274, 602 P.2d at
963-64.
Had the challenged evidence been introduced in the
prosecution's case-in-chief, the above substantive and
procedural requirements would strictly apply. Here, however,
the appellant was accused of the deliberate homicide of Sarah
Sloan, and the evidence admitted concerned an alleged assault
by the appellant on Sarah within six months of the homicide.
Appellant had already denied any aggressive tendencies on his
part toward the victim. Such evidence on rebuttal bore out
his potential intent, knowledge, and absence of mistake or
accident. In addition, the evidence was extremely probative
as the appellant's self-defense claim was based on his
characterization of the victim as an aggressive, impulsive,
domineering person. Under these circumstances, such evidence
can hardly be viewed as prejudicial given the nature of the
appellant's defense. Rule 404(a), M.R.Evid.
While the precautionary instruction given at the time
the evidence was admitted did not conform exactly to that
suggested in Just, we do have both pretrial notice and a
final jury instruction which are in strict compliance with
all procedural requirements set forth in Just. In addition,
this Court has clearly stated that any procedural
irregularities occurring after the prosecution gives notice
under Just will not be grounds for reversal unless objected
to by a defendant. Here, no such objection was made.
As previously noted, the appellant's testimony opened
the door regarding his peaceful character. The prosecution
had every right to delve into evidence which tended to
discredit the appellant's version of the critical events and
his peaceful character, even if such evidence involved "other
crimes." See, State v. Austad (1982), 197 Mont. 70, 641 P.2d
1373; State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; and
State v. Kutnyak (1984), 211 Mont. 155, 685 P.2d 901. In
each of those cases, the defendants were charged with violent
offenses and when they testified on their own behalf, they
claimed, one way or another, to be generally peaceful people.
In each of those cases, the prosecution, as a part of its
rebuttal, presented evidence to counter such an assessment,
some of which focused on each defendant's involvement in
"other crimes" of a violent nature. This Court has
consistently held that such evidence was not subject to the
traditional Jenson-Just analysis, but rather was admissible
under Rule 404 (a)(l), M.R.Evid.
We note that however objectionable the testimony may
have been because it was conclusory in nature, it, with the
exception of the one exchange previously quoted (Lois
Taylor's testimony), it is clearly not hearsay and any other
objection based on its conclusory nature has been waived.
See, S $ 46-20-104 (2), and 46-20-701(2), MCA. We fail to
understand how these two examples of technical hearsay, which
occurred during the examination of Taylor may have prejudiced
the appellant. Section 46-20-701(1), MCA.
The third issue raised by the appellant is whether the
trial court committed reversible error when it denied the
admission of the victim's medical records.
The trial court refused to admit certain medical
records of the victim from the Veterans' Administration
Hospital of Miles City, Montana. According to the appellant,
those medical records documented the violent and turbulent
character of Sarah, and that her unstable personality
eventually led her to attack the appellant, an attack so
aggressive that it made him fear for his life.
Over a period of time Sarah had been treated by the
Veterans' Administration Hospital for severe asthma. This
treatment period began long before the time of her death.
Appellant sought to admit testimony of a psychologist
regarding Sarah's treatment and the psychologist's opinion
regarding the prognosis of her recovery. The trial court
concluded that the offered evidence was too remote in time to
be relevant to the appellant's self-defense claim.
The record indicates that before the trial court made
its exclusionary ruling, it conducted an in camera inspection
of the medical records at issue and, in chambers, carefully
detailed its findings with counsel. In addition, this same
issue was raised as part of the appellant's motion for a new
trial, which was filed some four days after the jury found
the appellant guilty of deliberate homicide. The trial
court, in its written order denying the motion, clearly
detailed why it found that both instances of Sarah's
treatment were too remote in time and that the subject matter
was irrelevant to the defense alleged. We can find no
manifest abuse of discretion in the trial court's ruling.
The fourth issue is whether the court committed error
in denying the admission of a statement allegedly made by
Sarah.
Testimony referred to is as follows:
A [By appellant]: We went out that
evening. I thought best to get her out
of the house a little bit, maybe cheer
her up if I could. I don't think we had
more than two drinks, returned home. It
was towards bedtime. Went in the
bedroom, bent over to take my shoes off.
Next thing I knew there was a --
something hit me in the back of the head
and I was knocked out. I came to, went
in the living room, Sarah was sitting
there. I asked her what that was for.
"What had I done wrong?" And she
couldn't explain it.
Q Did she say any more about that?
A Well, she mentioned to me I was pretty
lucky --
[ BY the prosecution]: Objection,
hearsay.
THE COURT: Sustained.
The appellant argues that threats by a victim toward an
accused should be allowed as an exception to the hearsay
rule. He argues that his testimony would have been an
attempt to establish that Sarah's statement constituted a
"threat. "
Under a reasonable construction of Rule 801, M.R.Evid.,
a portion of the testimony allowed is clearly subject to the
hearsay objection. It appears no more than a recitation of a
direct statement made by Sarah to which an objection could
have been lodged. There is no indication in the record as to
what the appellant's full answer would have been had he been
allowed to continue his testimony. We note, however, that
the objection appears for the first time on appeal.
We have long held to the principle that an appellate
court in reaching its decision will only consider material
ascertainable from the record. State v. Pease (~ont.1987),
740 P.2d 659, 661, 44 St.Rep. 1203, 1205; and State v. Dess
(1984), 207 Mont. 396, 398, 674 P.2d 501, 502. Here, no
offer of proof was made which would allow this Court to
examine the type of hearsay exception claimed by the
appellant. We find no merit in this issue.
The fifth issue is whether reversible error was
committed when the District Court allowed the prosecution's
forensic scientist to testify concerning velocity and
direction of blood splatters and when it allowed an
investigating officer to testify that the location of the
victim's death evidenced a struggle.
The appellant argues that the prosecution's forensic
scientist, Ken Konzak, was not qualified as an expert on the
interpretation of blood splatters. He alleges that because
Mr. Konzak testified as a lay witness on this subject, any
testimony admitted was not based on the witness' personal
knowledge since he was not present when the blood in question
was splattered. We find this argument rather farfetched.
Mr. Konzak is qualified as an expert witness in the field of
forensic serology. In qualifying him as an expert, the
following testimony was given at trial:
Q Okay. Your occupation is a forensic
scientist; is that correct?
A Yeah, I specialize in the area of
Forensic Serology.
Q Okay. Could you explain to us what
forensic serology is?
A Forensic serology is the
identification and typing of blood and
body fluids. Determination - - those
of how
stains and materials are deposited and
the factors that relate to those fluids,
such as time of intercourse and things
like that.
Q Could you relate to us, have you been
qualified as an expert in testimony in
regard to forensic serology?
A Yes, I have.
Q Do you recall how many times,
possibly?
A 63, 64, somewhere in there.
[Defense counsel] : Your Honor, we'd
stipulate to the witness's credentials as
a Forensic Serologist.
THE COURT: Very well. He's qualified.
(Emphasis added. )
It is to the following testimony that the appellant
claims his theory of self-defense was greatly prejudiced by
the testimony on blood disposition.
Q [ B y the prosecution] : Okay. Do you
see what appears to be some blood
splatters in that photograph?
A [ B y Mr. Konzak] : Yes.
The photograph
depicts as it was described to me, the
area in which several of these blood
splatters I've just analyzed were taken
from the kitchen door.
Q Okay. Can you -- in looking at the
photograph of those blood splatters, can
you tell anything about direction or
force or anything like that?
A We can tell -- which I'd have to see
obviously closer up when the time comes,
that the splatters come from lower on the
-- towards the floor up at an angle, a
low angle, up to roughly about thirteen
to seventeen inches on the side of the
door, but come from down going up, as
opposed to having been dropped from above
down on to the lower part of the door.
Q So, is it fair to say, that would not
be consistent with someone standing above
the door and bleeding down upon it?
A That's very true. Also, there are
some smears over here which are caused as
a small splatter up against it, which
have been smeared by rubbing or some
other means of smearing, that don't
necessarily show the direction that I was
mentioning before.
How this testimony is unfairly prejudicial to the
appellant's theory of self-defense is not understandable.
Appellant testified that after he stabbed Sarah the final
time, she fell to the floor directly in front of the door
where the blood splatters were found. The testimony of Mr.
Konzak is consistent with the opinion that the blood was
deposited on the door as it traveled in an upward direction,
deposited there by her body's impact with the floor. The
admission of such testimony can hardly be characterized as
unduly prejudicial to appellant's theory of self-defense.
Appellant also claims that Detective Skillen improperly
testified that a violent struggle had occurred in appellant's
residence the night of Sarah's death because Detective
Skillen was not qualified as an expert on such matters. A
review of the record shows that the detective was, in fact,
qualified as an expert on crime scene processing and
investigation. Further, that Detective Skillen did not
testify as to the existence of a violent struggle. In
addition, the appellant specifically stated he had no
objection to such a qualification. The only objection came
when the detective testified to his findings, as follows:
Q [By the prosecution] : In your opinion
as an expert in crime scene investigator
[sic], did you see anything that appeared
to be a struggle at that residence?
[Defense counsel] : I'm going to object.
I'm not sure, I don't believe there's
been a foundation laid for that question.
This witness might be able to testify as
to what evidence he evaluated, but to
draw that kind of a concl~usion, I don't
believe that the foundation can be laid
and certainly has not been.
THE COURT: The objection will be
overruled. And if the answer is in the
affirmative, then I want to go into the
foundation.
Q Would you answer the question.
A Yes, sir.
Q Okay. My q,uestionwas did you see any
sign of a struggle?
A Yes, sir.
Q What indicated to you that there was a
struggle at that residence?
A The pattern of blood splatters and the
area of the floor that had residue that
appeared to have been a heavier deposit
at one time on the kitchen floor.
Q Was there anything else at the
defendant's residence which indicated to
you that there was a struggle at that
residence?
A No, sir.
Q You didn't see any furniture tipped
over?
A No, sir.
Q Any objects that appeared to have been
thrown through the house?
A No, sir.
Q Just the blood stains?
A Yes, sir.
We find this testimony to be admissible by an expert
who has been previously qualified.
The decision of the District Court is affirmed.
We concur: A
Justice ~ i l l i a mE. Hunt, Sr., did not participate in this
opinion.
I c o n c u r i n the result.