No. 90-255
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DEC B 8 1998
JOHN ED GAMBREL, JR.,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Vernay, Esq., Kalispell, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Paul D.
Johnson, Assistant~ttorneyGeneral; Helena, Montana
Ted 0. Lympus, County Attorney, Kalispell, Montana
Submitted on Briefs: November 15, 1990
Decided: December 18, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
John Ed Gambrel, Jr., was convicted of deliberate homicide
following a jury trial in the District Court for the Eleventh
Judicial District, Flathead County. He appeals. We affirm.
The issues are:
1. Did the District Court err in denying the defendant's
motion in limine and admitting into evidence the testimony of Alane
Shuster, Shelly Birky, and Kathryn Jinx Kinslow?
2. Did the court err in denying the defendant's motions for
a mistrial?
3. Did the court err in denying the defendant's motion for
a new trial?
Defendant John Ed Gambrel, Jr., stands convicted of the
February 5, 1989, murder of Lori Anne Schwegel in Whitefish,
Montana. Following a report of a shooting shortly after 2 a.m. on
that date, police officers discovered Schwegel's body in the
apartment she had shared with Gambrel. She had been shot three
times in the chest, once in the right hand, once in the left cheek,
and once in the right leg. Her body was lying on the living room
floor next to a rifle and rifle case later determined to be
Gambrel's. Twelve spent shell casings were recovered from the
living room, and two bullets were embedded in the ceiling. The
front door of the apartment was ajar. There was no sign of forced
entry or struggle.
Gambrel, suffering obvious head wounds, arrived at the
apartment minutes later. He was transported to a hospital by
ambulance, during which time he spoke a lot of gibberish and said,
"help us, help us," ''help Lori," "them coke son-of-a-bitches, and
also '1 didn't mean to hurt her."
'
Gambrel claims that he and Schwegel were attacked by an
unidentified third party. At trial, he testified that after a
night on the town, he was knocked unconscious as he entered the
apartment he and Schwegel shared. Gambrel testified that when he
regained consciousness, he was lying across the body of Schwegel,
who had stayed home that evening. He testified that he realized
he had been shot and went to the apartment of his upstairs
neighbor, who summoned the police.
Gambrel's upstairs neighbor, Stuart McQuade, testified that
he arrived home at about 2:00 a.m. He stated that he heard three
ltbangsll
just before Gambrel came to his door for assistance. He
stated that he did not see anyone around the apartments and, other
than the three "bangs,I1 did not hear anything, although according
to him the apartment walls were thin.
Gambrel hypothesized that he and Schwegel had been shot on the
orders of Ben Sagen, at whose home he had at one time stayed. He
claimed that Sagen had a contract out on his life. Sagen denied
that. Sagen testified that Gambrel did owe him money and that he
had threatened to contract with a collection agency to recover it.
Gambrel talked to a group of police officers on his way home
about 2:00 a.m. One of those officers characterized Gambrel's
behavior at that time as "acting quite different. The State's
theory is that Gambrel spent several hours downtown, went home and
shot and killed Schwegel, returned to the bars, then talked to the
officers in an attempt to establish an alibi before he again
returned home and shot himself.
Gambrel had suffered two gunshot wounds. One was a grazing
soft tissue injury to the chin. The other bullet entered under
his chin, passed through the floor of his mouth, palate, nose and
sinus, and exited between his eyes on the forehead. Two doctors
testified at trial that Gambrel s injuries were consistent with
self-inflicted gunshot wounds. Sagen testified that Gambrel had
once bragged to him that he had been to a mercenary school where
he had learned how to shoot people without killing them. The
doctors did not find any injury to the back of Gambrel's head from
being knocked unconscious. Also, Gambrel could not explain why his
jacket was found neatly folded on the sofa in the apartment.
Gambrel had been seen at various downtown Whitefish bars all
evening on February 4-5 except for a period of about an hour
beginning at 10 or 11 p.m. Witnesses testified that Gambrel was
"very intoxicated1'and "scary,11
and that he said he was planning
to leave Schwegel and was angry with her. Gambrel denied making
those statements and testified that he and Schwegel were very happy
together.
Over the defense's objection, the State presented testimony
of three women with whom Gambrel had lived at various times. Alane
Shuster testified about incidents in which Gambrel had physically
abused her, culminating on Christmas Eve 1 9 8 4 . She stated that
after they ate dinner, Gambrel tied her, naked and under protest,
spread-eagle to a bed, then stuffed cut-up pieces of potato into
her vagina. She testified that he watched her cry and beg him to
stop for about ten minutes, then went to sleep on the couch,
leaving her tied up. She later freed herself, but did not tell
anyone about the incident because she was humiliated and embar-
rassed.
The second woman, Shelly Birky, testified that she allowed
Gambrel to use a room in her apartment during the fall of 1 9 8 6 .
She testified that she awoke at 5 : 3 0 a.m. on Christmas morning to
find him on top of her having intercourse. She testified that as
she tried to get away, he slammed her against walls, hit her, and
repeated, "I will kill you; I will kill you; I will kill you." She
testified that she reported the incident to the police.
Kathryn Jinx Kinslow testified about a Halloween 1 9 8 7 incident
in which Gambrel chased her around her apartment and slapped her,
then slashed her waterbed. She testified that he told her, "I am
going to kill you, you are a dead woman, you are not going to be
alive tomorrow morning. Don't even bother going to sleep, because
you are not going to live through to morning. You are not even
worth living. I am going to take a knife and slit you from your
cunt all the way up." Kinslow filed a police report.
All three women were extensively cross-examined. Gambrel
denied making any of the threatening statements and, aside from
admitting that he had an argument with Kinslow on Halloween of
1987, denied that any of these incidents occurred.
Gambrel was found guilty of deliberate homicide and was
sentenced to 100 years in prison plus 10 years for use of a
dangerous weapon.
Did the District Court err in denying the defendant's motion
in limine and admitting into evidence the testimony of Alane
Shuster, Shelly Birky, and Kathryn Jinx Kinslow?
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this
Court set out specific requirements which must be met before
evidence of other crimes, wrongs, or acts will be admissible under
Rule 404(b), M.R.Evid. The requirements are:
1. Similarity of crimes or acts; and
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 substan-
tially outweighed by the prejudice to the defendant.
Just
I 602 P.2d at 961. In addition, the State must give the
defense advance notice of its intent to use such evidence and the
jury must be admonished that the purpose of the evidence is
limited. Just, 602 P.2d at 963-64.
In this case, the State gave pretrial notice of its intent to
present the testimony of four women (one did not appear at trial).
The defense made a motion in limine to prevent the women from
testifying. After reviewing the women's written statements and
hearing oral argument on the motion, the court ruled that the com-
monality among the offered testimony was
being females who have cohabitated with Defen-
dant for significant periods of time and have
been physically attacked, to varying degrees,
by the Defendant while he was in a state of
intoxication. They have also been subjected
to threats of further harm or death by the
Defendant while he was in an apparent alco-
holic rage.
The court also ruled that the acts were not so remote in time as
to be irrelevant or immaterial, that they were sufficiently similar
as violent acts, and that their probative value outweighed their
prejudicial effect. It denied the defendant's motion in limine.
The defense again argues here that the other acts disclosed in the
testimony of the three women were not similar to deliberate
homicide, were too remote in time, did not establish a common
scheme, plan, or system, and were prejudicial beyond their proba-
tive value.
The defense argues that, in particular, testimony about
Gambrel's previous "bizarre sexual behavior1' is not similar to the
crime charged here. Gambrel's act of tying up an unwilling Shuster
and stuffing potatoes into her vagina, then leaving her in that
state while he fell asleep on the couch, did involve sexual organs
and may thus be described as ''bizarre sexual behavior.'' However,
that act, like rape, is more accurately characterized as violent
or sadistic than as sexual behavior. Like the violence against
Schwegel, it was apparently unprovoked and occurred after Gambrel
had been drinking. It is not true, as the defense argues, that the
acts must have been perpetrated against the same victim to be
similar. See State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136.
We conclude that the violent behavior against Shuster, especially
when looked at in combination with the testimony of the other
women, is sufficiently similar to the violent behavior of shooting
Schwegel to have been admissible into evidence.
Similarly, we conclude that the rape of the sleeping Birky
followed by death threats against her and the slapping, property
destruction, and death threats against Kinslow are sufficiently
similar to the crime charged here. We agree with the District
Court that the similarities are in the nature of Gambrel's rela-
tionships with the victims, that he had been drinking before each
incident, and that he was violent and/or threatened deadly violence
each time.
The acts about which the three women testified occurred
between two and four years before Schwegel was killed. This Court
has allowed evidence of events which occurred nine years prior to
the charged acts, when "there is a continuing pattern of similar
conduct. " Tecca, 714 P.2d at 139. Here, there was a continuing
pattern of violence against the women with whom Gambrel was living.
We conclude that the acts were not too remote in time to be admis-
sible into evidence.
We next address the presence of a common scheme, plan, or
system. The evidence shows a common system of violence, after
Gambrel had been drinking and directed against his partners,
including death threats, sexual assaults, beatings, and murder.
As in Tecca, Ifwefind the number and similarity of incidents tends
to establish a common scheme or plan under the third prong of the
Just test." Tecca, 714 P.2d at 139.
Finally, we consider whether the "other crimesn evidence was
prejudicial beyond its probative value. In a different case,
testimony about the acts disclosed by the three women might be too
prejudicial. Here, Gambrel was charged with deliberate homicide.
The prejudicial effect of the testimony against him must be viewed
in light of the seriousness of that charge. Further, the probative
value of the testimony by the three women must be viewed in light
of the absence of any eyewitnesses to this crime. We conclude
that the District Court was correct in ruling that the probative
value of the testimony outweighed its prejudicial effect.
After considering the four Just factors, we conclude that the
State has met its burden. We hold that the District Court did not
err in denying the motion in limine.
I1
Did the court err in denying the defendant's motions for a
mistrial?
Defendant moved for a mistrial at the conclusion of each of
the three women's testimony. At the conclusion of Shuster's
testimony, he cited her statements that he was a thief, that he was
obsessed by Rambo movies, and that she had to bail him out of jail
for an unrelated matter. The defense did not object to any of this
testimony at the time it was given. The testimony was nonrespon-
sive to the questions asked by the State's attorney, who quickly
interrupted the testimony about thievery.
The reason for the motion for a mistrial at the conclusion of
Birkyls testimony was that she had stated that Gambrel was a thief
and that he was banned from certain bars. Following a defense
objection, the court gave a curative instruction as to the thief
testimony. The State's attorney interrupted the ''banned at bars1'
testimony before the witness could complete her statement.
The defense moved for a mistrial at the conclusion of
Kinslow's testimony because she stated that Gambrel had agreed to
get counseling for drug and alcohol problems. No objection was
made at the time this testimony was given.
Our standard of review of a denial of a motion for mistrial
is evidence that is llclear,
convincing, and practically free from
doubt, of the error of the trial court's ruling." State v. Counts
(1984), 209 Mont. 242, 247-48, 679 P.2d 1245, 1248 (citation
omitted). We conclude that this standard has not been met. The
court did not err in denying the motions for mistrial.
I11
Did the court err in denying the defendant's motion for a new
trial?
Gambrel's motion for a new trial was based on the same
arguments he used in his motion in limine and in his motions for
mistrial. He also cited State v. Heinrich (Mont. 1990), 788 P.2d
1346, 47 St.Rep. 314, modified, 794 P.2d 696, which had just been
decided.
Heinrich was originally charged with assault and criminal
possession of dangerous drugs, both felonies. The State gave
notice, as required under Just, of its intent to introduce evidence
of other crimes, namely a previous guilty plea to possession of
dangerous drugs, a previous conviction of the offense of intimida-
tion, and evidence concerning a seizure of dangerous drugs from
Heinrich's trailer. Before trial, Heinrich entered a guilty plea
to the charge of possession of dangerous drugs. Therefore, he was
tried only on the assault charge. However, the trial court let in
the other crimes evidence. This Court held that none of the
evidence of other crimes should have been admitted because it was
not related or similar and was too remote in time. Heinrich, 788
P.2d at 1350-51.
The defense argues that this Court's opinion in Heinrich
renders the admission of the testimony of the three women inadmis-
sible in this case. We disagree. The two cases are obviously
factually distinguishable, and the Just factors are fact-dependent.
Granting or denying a motion for new trial is within the
discretion of the trial court. Section 46-16-702(1), MCA; State
v. Brush (1987), 228 Mont. 247, 252, 741 P.2d 1333, 1336. For the
reasons discussed above under Issues I and 11, we hold that the
District Court did not abuse its discretion in denying the motion
for a new trial in this case.
Affirmed.
We concur:
Justice R. C. McDonough dissents.
The fourth requirement of the Just rule (See State v. Just
(1979), 184 Mont. 262, 602 P.2d 957) relative to the admissibility
of evidence of other crimes, wrongs or acts has by the majority
opinion lost practically all of its usefulness. Such requirement
is as follows: 'Ithe probative value of the evidence is not
substantially outweighed by the prejudice to the defendant." Just,
602 P.2d at 961.
Here the defendant was charged with deliberate homicide of the
woman he lived with by shooting her five times with a rifle. It is
the relationship of this charge with the testimony of the witnesses
Alana Shuster, Shelly Birky, and Katherine Jinx Kinslow which is
in question.
Their testimony relative to the other requirements of Just is
questionable; for example, similarity of crime or acts. However,
allowing Alana Shuster to testify to the defendant's placement of
the potatoes, a sexually perverted attack, is practically a
guarantee of the criminality of the defendant's character, his
loathsomeness and his fitness for conviction of the crime charged.
The same can be said of the testimony of Shelly Birky as to the act
of rape. The testimony as to such physical assaults on Ms. Shuster
and Birky, should have been at the very least limited in detail to
lessen the extreme prejudicial effect. Evidence admitted under the
Just rule is by its nature somewhat prejudicial and should be
carefully weighed as to its probative value. In essence Rule
404(b), provides that evidence of other crimes, wrongs or acts is
not admissible to show charaqter of a defendant. The reason for
this rule is that the jury should judge the defendant on the facts
and law relevant to the actual crime charged and not on his
character traits or that he is a "bad man." I would reverse and
remand for a new trial.
Justice Wm. E. Hunt, Sr. and Justice John C. Sheehy concur in
the foregoing dissent.
Justlces