I N THE SUPREME COTJRT O THE STATF O F MONTANA
F
STATE O MONTANA,
F
P l a j n t i f f and R e s p o n d e n t ,
VERN TRAVIS BAKER,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e James B. W h e e l i s , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Morgan Modine & D o u g l a s Anderson; M i s s o u l a , Montana
For Respondent :
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l ; H e l e n a , Montana
R o b e r t J . Deschamps 111, County A t t o r n e y ; M i s s o u l a , MT
B e t t y Wing, Deputy County A t t o r n e y
Karen Townsend, Deputy County A t t o r n e y
S u b m i t t e d on B r i e f s : February 1 6 , 1989
Decided: April 25, 1989
Mr. J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n o f t h e C o u r t .
Defenclant was c o n v i c t e d on a jury verdict before the
D i s t r i c t C o u r t , F c u r t h J u d i c i a l D i s t r i c t , M i s s o u l a County, o f
robbery, a felony; t h e f t , a felony; tamperinq with a w i t n e s s ,
a f e l o n y ; and t h e f t , a misdemeanor. The D i s t r i c t C o u r t s e t
a s i d e t h e robbery conviction. D e f e n d a n t was s e n t e n c e d t o 5 0
y e a r s a t P o n t a n a S t a t e P r i s o n f o r f e l o n y t h e f t , and 5 0 y e a r s
f o r tampering with a witness. He was a l s o s e n t e n c e d t o 6
months i n jail f o r misdemeanor t h e f t . These s e n t e n c e s a r e t o
run concurrently. Defendant a p p e a l s t h o s e c o n v i c t i o n s . We
affirm.
The i s s u e s a r e :
1. Did the District Court err in consolidating the
charges?
2. Did the District Court err in admitting certair,
evidence?
3. Did t h e D i s t r i c t C o u r t e r r i n g i v i n g a n i n s t r u c t i o n
on a c c o u n t a b i l i t y d u r i n g j u r y d e l i b e r a t i o n s ?
On F e b r u a r y 5 , 1987, t h e P i s s o u l a County A t t o r n e y f i l e d
a n i n f o r m a t i o n c h a r g i n g M . Baker w i t h r o b b e r y , a f e l o n y .
r On
March 6 , 1987, Mr. Baker was c h a r g e d w i t h f e l o n y t h e f t - . The
s e c o n d i n f o r m a t i o n was ame~decl t o i n c l u d e a c h a r g e o f b u r -
glary. On Pay 4 , 1987, d e f e n d a n t was t r i e d on t h e r o b b e r y
count h u t t h e jury d i d not reach a v e r d i c t . Later the infor-
m a t i o n c h a r g i n g r o b b e r y was amended t o i n c l u d e t h e o f f e n s e o f
tampering with a witness.
After the trial on Kay 4, 1987, the county a t t o r n e y
f i l e d a t h i r d i n f o r m a t i o n c h a r g i n g d e f e n d a n t w i t h misdemeanor
theft. Thereafter, t h e c o u n t y moved t o c o n s o l i d a t e a l l t h e
charges and that m o t i o n was granted on O c t o b e r 28, 1987.
The c o n s o l i d a t e d c a u s e s w e r e t r i e d by j u r y on November
33, 1987. Defendant was found g u i l t y of robbery, felony
theft., tampering with a wi t-ness, and misdemeanor theft.
Defendant moved the court to set aside the verdicts of guilty
to robbery and felony theft. The court subsequently set
asifiethe verdict of guilty of robbery.
The relevant facts in this case began on December 13,
1986, when Gary Deschene reported to the Missoula County
Sheriff's office that a gun was missing from his home.
Following a Crimestopper's tip, detectives searched the home
of Mr. Baker for this gun, but did not find it. On July 14,
1987, a skindiver found a gun underneat.h Buckhouse Bridge in
the Bitterroot River. He turned the gun over to the sheriff
and Mr. Deschene isentified it as the one missing from his
home.
At trial, Mr. Raker's girlfriend, Katherine Lamb, testi--
fied that Mr. Baker had told her he had a gun he had to
dispose of, and that she haZ accompanied him to the Buckhous~
Bridge where Nr. Baker threw the gun into the river.
A friend of Mr. Raker, Lance Sprout, testified at trial
that on January 17, 1987, he and Mr. Faker entered the home
of Lloyd Killumsen and took two rifles and a box of pistols.
Mr. Sprout stated that Mr. Baker later went hack to that
residence and took a shotgun, binoculars, and several other
items.
Mr. Sprout also testified that five days later, on
January 22, 1987, he approached his cousin about borrowing a
car. The cousin arranged for Mr. Sprout to borrow a car from
a friend. The car Mr. Sprout borrowed was a blue Honda Civic
with personalized license plates which said, "MARSBAR." Mr.
Sprout stated that he picked up Mr. Baker in the borrcwec?
czr, and after a couple of st-ops, they decided to rob Paylesc
Shoe Store in Missoula. Mr. Sprout testified that he and Mr.
Baker robbed the store, using the sawed-off shotgun taken
fron the Willumsen residence.
A citizen driving by observed the two men leavinq
Payless Shoe Store with stockings over their heads. The
citizen followed them as they drove a-way, obtaining a vehicle
description and license plate identification. Later that
night the car was stopped by a Missou1.a deputy who observed
it near the Missoula County Courthouse.
b?hen the car was searched, detectives found items used
in the robbery and items taken from the store. They also
found rifles and other items taken from the Willumsen home.
When detectives searched defendant's grandmother's house,
where Mr. Baker lived, they found a sh-otgun scabbard in her
car, also belonging to Mr. Willumsen.
At trial Mr. Raker' s girlfriend, Katherine Lamb, testi-
fied that Mr. Raker called her while he was awaiting trial-,
and asked her to testify that he had called her on the phone
at 8 : 0 0 p.m. on the night of the robbery. She testified that
he later sent a letter to her in which he suggested that she
get together with his mother and grandmother, decide on how
they would answer questions, and "rehearse, rehearse, re-
hearse." Be said they all needed to stick together and not
discuss It with anyone else "until we have it down to a 'T'."
This letter, which was admitted into eviderc~ at trSal,
implied that an alibi should be formulated.
I
Did the Distrlct Court err in consolidating the charges?
The first issue cn appeal is whether the District Court
properly joined the various charges against Mr. Baker. The
relevant statute on joinder, 5 46-11-404, MCA, pro~ridec in
pertinent part:
(1) An indictment, information, or complaint
may charge two or more different offenses connected
together in their commission, different statements
of the same offense, or two or more different
offenses of the same class under separate counts.
If two or more indicl:ments, informati.ons, or com-
plaints are filed in such cases in the same court,
the court may order them to be consolizated. . . .
(4) Tf it appears that a defendant or the
state is prejudiced by a joinder of related prose-
cutions or defendants in a sin.cf1.e charge or by
joinder of separate charges or defendants for
tria,, the court may order separate trials, grant a
severance of defendants, or provide any other
relief as justice may require.
Joinder is proper where the offenses are logically
linkec?.hy motive and where overlapping proof must be offered.
United States v. Hoelker (9th Cir. 1985), 765 F . 2 d 1422,
1425. In this case the burglary and felony theft charges
stemmed from the same incident, which was the burglary of the
Willumsen residence. These charges were connected to the
robbery charge in that the gun stol-en from Mr. Willumsen was
used in the robbery. Additicnally, other items stolen from
the Will-umsen residence were found in the car which was used
in the robbery. Separate trials would have required overlap-
ping evidence, and many of the same witnesses. The robbery
supplied the motive for the witness tampering charge which
was therefore properly joined. State v. Bingman (198?), 745
P.2d 342, 44 St.Rep. 1813. There was evidence indicatinq
that the misdemeanor theft of the Deschene gun, committed a
month prior to the other crimes, was done in furtherance of a
plan to commit an armed rohhery. The crimes were logically
connected by motive and there was a large area of overlapping
proof among the separate charges. We therefore hold that the
District Court's joincler OF these charges was not clearly
erroneous.
Having concluded that joinder was not clearly erroneous,
the second inquiry is whether the motion to sever should have
been granted due to prejudice to the c?efe~dant. F e have
l
previously enumerate6 three basic types of prejudice which
may occur on consolidation. State v. Campbell (1980), 189
Mont. 107, 120, 615 P.2d 190, 198. State v. Orsborn (1976),
170 Mont. 480, 489, 555 P.2d 509, 514-515. In Campbell, we
stated:
The first kind of prejudice results when the jury
consi6ers a person facing multiple charges to be a
bad man and tends to accumulate evidence against
him until it finds him guilty of something. The
second type o? prejudice manifests itself when
proof of guilt on the first count in an information
is used to convict the defendant of a second count
even though the proof would be inadmissible at a
separate trial on the second count. The third kind
of prejudice occurs when the defend-ant wishes to
testify on his own behalf on one charge but. nct on
another. (Citation omitted.)
615 P.2d at 198.
Prejudice to defendant is balanced against judicial
economy. This balancing is left to the sound discretion of
the trial judge and the appellate court will not substitute
i.ts jusgment for that of t-he trial court, absent a showing of
abuse of discretion. Zudicial economy weighs heavily in the
balancing process, and the burden is on the defendant to show
t . h a t prejudice outweighs this. Campbell, 615 P.2d at 198.
In the present case defendant contends that consolida-
tion of the charges was prejudj-cj-a1because the number of
charges against him allowed the jury to regard him as a "had
man." In the recent case of St.ate v. Slice (19881, 753 P.2d
1309, 1311, 45 St.Rep. 752, 754, this Court stated that the
cumulative effect of multiple charges is "rarely a sufficient
reason to justify severance." In Slice, the defendant faced
16 criminal counts at trial, yet the court found insufficient
prejudice to require severance. See also, Campbell, 615 P.2d
at.199, (where the district court. refused to sever a habitual
traffic offender charge); - -
Orshorn, 555 P.2d at 515.
In support of his contention that the first type of
prejudice occurred, Mr. Baker cites answers given by two
jurors when the jurors were polled after trial. In polling
the jurors, the court asked if the multiple charges made them
think that the defendant was more likely to be guilty. The
court and defense counsel framed this question several dif-
ferent ways in attempts to clarify precisely what was being
asked of the jurors. The court. fina.l.l?-directed the jurors
as follows:
THE COURT: Well, see if you can answer that. If
you can't understand, just say, "I can't answer. I
don't understand."
Two jurors responded, "I dcn't know." It is not at all clear
that these jurors were indicating that they may have convict-
ed Mr. Raker due to multiple charges. The jurors may have
been responding to the court's direction to not answer if
they did not understand the question as posed.
F e conclude that neither the cumulative effect of the
l
multj-ple charges nor the jurors' answers to the polling
demonstrates prejudice to the defendant sufficient to deny
him a fair trial. "In showing prejudice, it is not suffi-
cient that the defend-ant prove some prejudice or that a
better chance of acquittal. exists if separate trials are
held. Rather, the defendant must show the prejudice was so
great as to prevent a fair trial." Campbell, 615 P.2d at 198
(citing United States v. Dohm (5th Cir. 1979), 597 F.2d 535,
5 3 0 ; Vnited States v. Martinez (1st Cir. 1973), 479 F.2d 824,
828.) F7e affirm the holding of the District Court that
defendant faLLed to demonstrate prejudice which would require
severance.
Mr. Raker also contends that the second type of preju-
dice from joinder occurred at his trjal. This type of
p r e j u d i c e e x i s t s when t h e jury u s e s proof of g u i l t on one
c o u n t i n t h e i n f o r m a t i o n t o c o n v i c t a d e f e n d a n t on a n o t h e r
count i n t h e i n f o r m a t i o n even though proof would h a v e been
i n a d m i s s i b 1 . e a t a s e p a r a t e t r i a l or t h e second c o u n t . A s we
stated i n Cam~hell:
N c p r e j u d i c e o f t h i s n a t u r e w i l l b e found when t h e
evidence p r e s e n t e d a t a j o i n t t r i a l i s s i m p l e an?
distinct. T h i s r u l e i s b a s e d on t h e r a t i o n a l e t h a t
when the charges are f e w and the evidence straight
forward, t h e r e i s no r e a s o n t o assume t h e j u r y was
confused and c o u l d n o t k e e p t h e r e l e v a n t e v i d e n c e
separate. (Citations omitted. )
I n t h e p r e s e n t c a s e t h e c h a r g e s were n o t c o m p l i c a t e d a n d
t h e e v i d e n c e was n o t complex. Defendant h a s f a i l e d t o stat^
what e v i d e n c e was u s e d t o f i n d him g u i l t y on one c o u n t whj-ch
would h a v e been i n a d m i s s i b l e i n a s e p a r a t e t r i a l . The j u r j ,
was i n s t r u c t e d t h a t e a c h c o u n t c h a r g e s a d i s t i n c t o f f e n s e en6
t h a t e a c h c o u n t must b e d e c i d e d s e p a r a t e l y .
Defendant contends, however, that t.his second t y p e of
prejudice occurred because the jurors were c o n f u s e d . In
suppcrt of this c o n t e n t i o n h e n o t e s t h a t upon p o l l i n g t h e
jurors after trial, three jurors said they did not belielTe
d e f e n d a n t was i n t h e P a y l e s s S t o r e when it was r o b b e d . PF'
argues t h a t t h i s shows t h e j u r o r s were c o n f u s e d b e c a u s e n o
e v i d e n c e was p r e s e n t e d which p o r t r a y e d d e f e n d a n t i n a l i g h t
other t h a ~ as perpetrator. As additional evidence that
c c > n f u s i o n was "rampant" i n the t r i a l , defendant notes t h a t
t h e p r o s e c u t o r made a n i n c o r r e c t s t a t e m e n t a b o u t t h e e v i d e n c e
i n cl.osing argument. However, t h e j u r o r s were a l s o p o l l - e d on
t-he speci5j.c q u e s t i o n of whether t h e m u l t i p l e charges caused
confusion in their minds, and each juror answered, "No. I'
D e f e n d a n t h a s n c t m e t his b u r d e n o f showing t h e s e c o n d t y p e
n F p r e j ~ l d i c e . PTe t h e r e f o r e cnnc1ud.e that: t h e ( J e F e ~ d a n th a s
demonstrated no prejudice sufficient to deny him a fair trial
or to require severance under S 46-11-404 (4), MCA. We hold
that the District Court's refusal to sever the charges was
not clearly erroneous. We affirm the holding of the District
Court on the motion to sever.
II
Did the Pistrict Court err in admitt-ing certain impeach-
ment evidence?
Mr. Baker objects to the admission of a letter written
by him to Randy Clark, an inmate at Montana State Prison.
The letter contained a message to Lance Sprout, who wa.s aLse
lncarcerated at Kontana State Prison. In the message to Mr.
Sprout, r . Baker suggests that "if someone accj.dentaIly
somehow bumped his head and he got amnesia, they could not
hold that egainst him," and "possibly the next statement in
court will be so mixed up that it will he thrown out." At
the end of the letter, Mr. Raker offers to send money, indi-.
cating that he will send generous amounts if his innocence is
proven. This letter was introduced by the State on cross
examination of Mr. Baker.
The State first asked Mr. Raker if it would have been tc
his advantage if Lance Sprout had not testified at Mr. Bak-
er's trial, and if it would have been to his advantage if Mr.
Sprout had gotten amnesia while he was at the prison. The
State next asked Mr. Baker if he had ever written a letter
making those suggestions. Mr. Raker's answers to the State's
questions were evasive. Also, by his answers he attempted to
suggest that the possibility of amnesia was Mr. Sprout's
idea. Mr. Faker was then asked to read the letter to the
jury. Defense ccunsel objected on grounds of relevancy an2
foundation. On appeal, the 6.efense argnes that the letter
was irrelevant an? pre j u ? i c j a .
!
The letter was relevant to show consciousness of guilt
ancl is admissible under Rule 404(b) M.R.Evid., which
provides:
Other crimes, wrongs, acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove
the character of a person in crzer to show that he
acted in conformity therewith. It malr, however, be
admissible for other purposes, such. as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
The second sentence of this subpart provides a list of excep-
tions to the general rule that other crimes, wrongs or acts
are inadmissible to prove a person's character. Evidence of
act may be admissible t.o prove any of the enumerated
reasons; however, this list is not exclusive and has been
held to include evidence which tends to prove consciousness
of gullt. State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287,
289. In Shaw, evidence of intimidation of a witness was an
act which was admissible to show consciousness of guilt. See
also State 7 7 . Clark (1984), 209 Mont. 473, 682 P.2d 1339,
1350.
in Shaw this Court stated that "[iln a criminal prosecu-
tion any attempted intimidation of a witness is properly
attributable to a consciousness of guilt and testimony relat-
ing thereto is relevant and admissible in evidence." - -
Shaw,
648 P . 2 d at 389-290, quoting People v. Smith (1972), 3
I1l.App.3d 958, 279 N.E.2d 512, 513. In Clark we noted that
this rationale applies to documentary as well as testimonial
evidence. Clark, 6 8 2 P . 2 6 at 1350. In the present case we
believe that the letter in which Mr. Baker attempted to
influence Mr. Sprout ' s testimony evidences defendant ' s con-
sciousness of g u i l t . As such, we conclude that the letter
was relevant and admissible pursuant to Rule 404(b),
M.R.Evid.
Defendant argues that even if this evidence were admis-
sible as "other acts" pursuant to 404(b), the four element
test of admissibility and procedural requirements established
in State 1 7 . Just (1973), 184 Mont. 262, 602 P.2d 9 5 7 , were
not met. However, the Just requirements do not apply in the
present case. The defendant in Shaw raised the same argument
but this Court disagreed, stating:
Both the admissibility test. and the procedural
requirements found in Just pertain to evidence of
other prior crimes but do not apply to evidence
establishing consciousness of guilt regarding the
crime with which the defendant is charged.
Shaw, 648 P.2d at 290.
We hold that the District Court's ruling which admitted
the letter was not clearly erroneous.
Did the District Court err i.n giving an accountabil-ity
instruction during jury deliberations?
During deliberations, the jury submitted a question to
the court which stated, "The charge of robbery, Instructior.
No. 8, how does it appl-Y to Instructi-on 11 regarding accom-
plLce?" The court and counsel for both parties considered
this question in chambers hut were unsure what the jurors
actually wanted to know. After the court asked the jurors to
clarify their question, and after discussion with counsel,
the court decided to instruct the jury on the offense of
accountability as defined by 5 5 45-2-301 and 302, KCA. The
jury later returned verdicts of not guilty to burglary of the
Willumsen residence, but guilty of theft of the items taken
in that burglary. Defendant argues that this is an inconsis-
tency caused by the giving of the accountability instruction.
Defendant also contends that the accountability instruc-
ticn was a material variation of the crimes charged and that
it was error to give this instruction after closing argument
because he was precluded from discussing this theory with the
jury, citing State v. Bretz 1 9 , 180 Mont. 307, 590 P . 2 d
614. Defenclant's ultimate contention on this issue is that
the District Court erred in not setting aside the verdict. of
guilty to theft.
We decline to address whether the court erred in giving
this instruction during jury deliberations because we con-
clude that the jury's determination that Mr. Baker was guilty
of felony theft need not be premised on an accountability
theory in this case. There was sufficient evidence presented
for the jury to find Mr. Baker guilty of theft without the
accountahj!j - t y instruct:iorl, ar,d without finding him guilty of
burglary.
We hold that the Cistrict Court properly refused to set
aside the convj.ct.i.on.
for theft.