No. 88-360
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
-VS-
Plaintiff and Respondent, %FD d *
CHARLES JAY DEVLIN, DEC 1 2 1991
Defendant and ell^^^*
CLERK O r SUPREME COURT
STATE OF MONTANA
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Jack L. Green, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ray J. Dayton; Knight, Dahood, McLean & Everett,
Anaconda, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; John Paulson,
Assistant Atty. General, Helena, Montana
Robert L. Deschamps, County Attorney, Missoula,
Montana
submitted on Briefs: October 24, 1991
Decided: December 12, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 24, 1987, the State filed an Information in the
Fourth Judicial District Court in Missoula County, charging Charles
Jay ~evlin with Misdemeanor Assault and Attempted Deliberate
Homicide. The incident at issue involved two different victims;
the State alleged that Devlin had assaulted his wife Cindy and had
tried to kill Dale Hart. The District Court instructed the jury on
the charged offenses of Misdemeanor Assault and Attempted
Deliberate Homicide, and also instructed on the lesser included
offenses of Attempted Mitigated ~eliberateHomicide and Aggravated
Assault. On January 4, 1988, a jury convicted Devlin on Aggravated
Assault, acquitting him on all other charges. Devlin appeals. We
affirm.
The issues are:
1. Did the District Court err in admitting Trisha Devlinls
prior inconsistent statement?
2. Did the District Court err in admitting photographs of
the victim and the crime scene?
3. Does the record contain sufficient evidence to support
Devlinls conviction for aggravated assault?
On April 18, 1987, Devlin flew into Missoula from Salt Lake
City to visit his wife and children. At that time, he and his wife
Cindy had been separated for more than two years. Cindy and the
children were not expecting him.
When Devlin arrived, the front door to Cindy's house was open.
He went into the house and found his children asleep in the living
room. He then walked down the hall to Cindy's bedroom and found
the door locked. He called Cindy's name but received no answer.
He used a pocketknife to dismantle the doorknob.
When Devlin entered the bedroom Cindy was passed out on the
bed, fully clothed. Devlin smelled alcohol on her breath.
Something then drew his attention to the bedroom bathroom. The
door was closed, and when Devlin opened it he found the victim,
Dale Hart, standing in the bathroom. A struggle followed, and Hart
was severely injured.
The noise from this struggle woke up Devlin's 12 year old
daughter, Trisha. Trisha walked back to the bedroom and met Devlin
coming out of the bathroom. Trisha asked him what had happened and
Devlin said, ''Your mom's having men around here again. 'I Devlin sat
down for a moment. Then Trisha saw him go back into the bathroom,
dismantle a wooden bar stool, and beat Hart with one of the stool
legs. Hart was fully clothed at the time. Later Trisha saw Devlin
take Hart's clothes off and drag him outside.
When the authorities arrived they found Hart naked and
semi-conscious on the ground in front of the house. Paramedics
found that Hart's teeth did not align correctly and that his mouth
was full of blood and other fluids which interfered with his
respiration. On arrival at St. Patrick's Hospital, the emergency
room staff classified Hart's condition as critical, and one doctor
testified that bone fragments were visible through open contusions
on Hart's face. Devlin told the authorities he had found Hart in
bed with Cindy. He then admitted to assaulting Hart.
The jury found Devlin guilty of aggravated assault after a
trial in late December 1987. The District Court sentenced him to
15 years at Montana State Prison with five years suspended on
conditions. The court designated Devlin as non-dangerous for
parole purposes and ordered him to pay restitution.
I
Did the District Court err in admitting Trisha Devlinlsprior
inconsistent statement?
Shortly after the authorities arrested Devlin, Trisha gave
Deputy Sheriff Hafferman a taped statement. She told Hafferman
that Devlin said, I1Your mom's having men around here again, and
that she had seen Devlin beat Hart with the stool leg. At trial,
Trisha testified that she could not remember what Devlin said, and
that she did not see him actually strike Hart with the stool leg.
Trisha acknowledged giving a statement to Deputy Hafferman and
testified that she had told the truth when she gave that statement.
She also testified that she was having trouble remembering the
earlier statement.
The State then attempted to introduce the actual tape
recording of the statement through the testimony of Deputy
Hafferman. Devlin objected, and the District Court Judge and
counsel retired to chambers for argument on the objection. The
judge indicated that he thought the tape was probably admissible,
but he suggested that the State bring Trisha back to the stand to
lay more foundation.
When Trisha took the stand again, she repeated that she had
told Deputy Hafferman the truth. She again testified that she did
not see Devlin strike Hart with the stool leg. The State then
proposed to play the tape, and Devlin's counsel responded as
follows:
Your Honor, I will object to that. I believe the proper
way to refresh this witness's recollection is to show her
a transcript of the tape, let her then make a
determination as to whether that refreshes her
recollection. I think Mr. McLean is missing a step here
by playing that to her in front of the jury.
The District Court sustained this objection. The court also denied
the State's request to distribute copies of the transcript to the
jury. Neither the tape nor the transcript was ever received into
evidence.
The prosecutor then handed Trisha a copy of the transcript of
the taped statement and proceeded to read it into the record with
Trisha's cooperation. The prosecutor read Deputy Hafferman's
original questions and Trisha read her original answers. The
defense raised no objection during this entire procedure, but
Devlin now argues that the District Court erred in admitting the
prior statement. The thrust of this argument is that what the
State was really trying to do was refresh Trisha's recollection and
that it did not follow the proper procedure for doing so.
We disagree. The Rules of Evidence, as they existed at the
time of trial, provided:
A statement is not hearsay if:
(1) . .
. The declarant testifies at the trial or hearing
and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with his
testimony ....
Rule 8Ol(d), M.R.Evid. (1987). Declarant Trisha Devlin testified
at the trial. She was subjected to cross-examination not once but
twice. Her statement was clearly inconsistent with her trial
testimony regarding what Devlin said and whether she actually saw
him strike Hart with the stool leg.
Furthermore, the prior statement was admissible as substantive
evidence. In S a e v. Charlo (1987), 226 Mont. 213, 735 P.2d 278, one
tt
declarant testified at trial that he had never thought about who
stabbed him. In fact, he had previously given a statement in which
he said he knew it was the defendant who had stabbed him. Another
declarant testified at trial that she could not remember having
accused the defendant of stabbing the victim. She too had
previously given a statement in which she accused the defendant.
Charlo, 735 P.2d at 279. We held that inconsistency within the
meaning of Rule 801(d) (1)(A) includes both positive contradictions
and claimed lapses of memory. We concluded that the District Court
did not err in admitting the statements in that case and we noted
that such prior inconsistent statements could serve as substantive
evidence. Charlo, 735 P.2d at 281.
In the instant case, Trisha's prior inconsistent statement
tended to establish two key facts: that Devlin said Cindy had been
having men around again, and that he actually beat Hart with the
stool leg. At trial, Trisha claimed she could not remember what
Devlin had said and she positively contradicted her earlier
statement about witnessing the beating with the stool leg. Thus,
her trial testimony presented one claimed memory lapse and one
positive contradiction. Her prior statement was therefore
inconsistent for the reasons we enumerated in Charlo, and under the
holding in that case it was admissible as substantive evidence.
We hold that the District Court did not err in admitting
Trisha Devlin's prior inconsistent statement.
Did the District Court err in admitting photographs of the
victim and the crime scene?
In chambers, the parties sought the District Court's advice on
a number of 8" x 1011 color photographs. Thirteen of these
photographs depicted Dale Hart's injuries and 21 of the photographs
depicted bloodstains at the scene of the crime. Devlin objected to
all of the photographs as l~gruesome~fi therefore unfairly
and
prejudicial. The District Court Judge explained that he was
inclined to exclude three of the photographs of Hart and seven of
the photographs of the crime scene. Consequently, the State did
not even offer ten of the photographs as the result of informal
discouragement by the trial judge. The court then excluded two
more photographs when the State offered them in front of the jury.
However, Devlin argues that al of the photographs should have been
l
excluded.
The Rules of Evidence provide:
Although 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, or by considerations of undue delay,
waste of time, or needless presentation of cumulative
evidence.
Rule 403, M.R.Evid. In Statev. Henry (1990), 241 Mont. 524, 531, 788
P.2d 316, 320, we noted that the balancing of probative value
against unfair prejudice is a matter for the discretion of the
trial court.
Here the District Court Judge fully understood the nature of
the problem. He told the parties:
I think they are gruesome, but we're facing a gruesome
issue here. We do have blood in the tub and the shower
and the condition of the bathroom, and the other one
shows the blood on the stool, so I think, although they
are gruesome, I would permit them to demonstrate what the
situation was.
Furthermore, the court discouraged the submission of ten
photographs and actually refused two more. Consequently, nearly
one-third of the photographs were never received into evidence as
the result of the District Courtrs balancing of probative value
against unfair prejudice.
We hold that the District Court did not err in admitting some
of the photographs into evidence.
Does the record contain sufficient evidence to support
Devlinls conviction for aggravated assault?
To commit the offense of aggravated assault, the defendant
must cause "serious bodily injuryw to the victim. Section
45-5-202 (1), MCA (1987). A "serious bodily injury" is one "which
creates a substantial risk of death." Section 45-2-101(59), MCA
Devlin argues that the record does not contain sufficient
evidence that Hart suffered serious bodily injury. He bases this
contention on the following testimony by Dr. David Johnson, one of
three doctors who testified at trial:
Q. Did you make some determination after looking
at him as to the severity of his injuries?
A. I thought his injuries were certainly severe
enough to warrant being in the hospital and
being observed for a period of time, and
furthermore, he was going to require surgery
for these facial fractures.
Dr. Johnson did not testify that Hart was at substantial risk of
death. Nor did Dr. Norman Nickman, an ear, nose, and throat
specialist who treated Hart's facial injuries, express an opinion
on the overall impact of the injuries. From this, Devlin concludes
that the State did not prove serious bodily injury beyond a
reasonable doubt.
However, Dr. Johnson and Dr. Nickman were not the only medical
witnesses. Dr. Joseph Weydt, the emergency room physician who
first treated Hart upon his arrival at St. Patrick's Hospital,
testified as follows:
Q. Now you've described what you saw initially.
Notwithstanding that, what would you describe
his medical condition as being at that point
in time?
A. Well, when he came in, if somebody had called
and asked, I guess I would have said that he
was critical at that moment. That means that
he was, that we thought at the time that he had
life-threatening injzin'es . [Emphasis added. ]
Furthermore, paramedic Jay Hagen testified that he believed Hart's
situation was ''life-threatening.
We review the findings of juries in criminal cases with great
deference. In Statev.Paulson (Mont. 1991), 817 P.2d 1137, 1146, 48
St.Rep. 838, 843, we said that:
The proper standard of review for sufficiency of the
evidence in a criminal case is whether, after viewing the
evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.
Here, one doctor and one paramedic testified that Hart's injuries
were life-threatening. The testimony on which Devlin relies does
not even address this issue. Based on this evidence, we believe a
rational trier of fact could have found beyond a reasonable doubt
that Devlin inflicted serious bodily injury on Hart.
We hold that the record contains sufficient evidence to
support Devlinls conviction for aggravated assault.
Affirmed.
We concur: