State v. Hage

NO. 92-258

IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

NEAL ALLEN HAGE, r

Defendant and Appellant.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of S i l v e r Bow,
The Honorable Mark P. Sullivan, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Donahoe & Yeshe, Helena, Montana

For Respondent:
Joseph P. Mazurek, Attorney General, Cregg W.
Coughlin, Assistant, Helena, Montana; Robert M.
McCarthy, County Attorney, Brad Newman, Deputy,
Butte, Montana

Submitted on ~ r i e f s : February 4, 1993

~ e c i d e d : JUne 1, 1993
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

his is an appeal from a Second Judicial ~istrict Court,
Silver Bow County, jury verdict of the deliberate homicide of
~illieFleming. We affirm.
There are five issues on appeal:
1. Did the trial court err in informing the jury, outside of
the presence of the defendant and counsel, that they would not
be allowed to take notes?
2. Did the trial court err when it prohibited the defendant
from cross-examining certain witnesses on their prior crimes?
3. Did the trial court err when it would not allow the
defendant to introduce evidence regarding Mitch ~pindler?
4. Was the evidence produced by the State of the defendant's
activities on the night before the shooting improper 404(b)
evidence or part of the res gestae of the crime charged?
5. Did the trial court err when it ruled that the defendant I s
evidence on juror misconduct was inadmissible?
On the evening of July 11, 1991 in Butte, Montana, William
(Willie) Fleming went to Mitch and Cheryl Spindlerlshouse. Willie
and Mitch were having a beer when Cheryl joined them. At about
9:00 p , m . , the appellant appeared at the Spindler home. Cheryl
testified that the appellant told her that his father had passed
away and he was angry, mad and hurt. The appellant joined Mitch
and Willie for a beer and stated that he had consumed beer and
various pills before his arrival at the Spindler home. At some
point thereafter, the appellant showed a handgun he had in his

2
possession and was "waving it around and stuff."
~orraine valentine (Lorraine) and Mick Jacobson (Mick),
friends of the Spindlers came to the house around 11:45 p.m. to see
if Mitch and Cheryl wanted to go to a comedy show. Mick was to
start a prison term the following morning for a drug related
offense. The Spindlers did not accompany them to the show but Mick
and Lorraine returned to the Spindler home after the show. Cheryl
testified that the appellant appeared to be quite upset at Mick and
was "harassing" him but Mick did not want any trouble, and
attempted to leave.
Then the appellant asked the group to come to his house for a
drink before Mick had to leave the next day. Cheryl and Mitch
Spindler drove their car with the appellant as a passenger. Cheryl
testified that during the drive to the appellant's house, the
appellant stated that he was going to kill Mick and make it look
like a burglary. They arrived at the appellant's house for drinks
and about 15 minutes later, Lorraine and Mick arrived. Cheryl
testified that she left with Mitch and Willie first at about 1:30
or 2:30 a.m., they all returned to the Spindler home and Mitch and
Willie continued drinking. Cheryl also testified that the
appellant called sometime after 3:00 a.m. and wanted Mick's
address. She gave the telephone to Mitch. The appellant returned
to the Spindler house while Willie was still there but Willie and
the appellant left the house about 5:30 or 6:00 a.m.
Steve Fleming, Willie's half-brother, testified that Willie
came home about 5:30 a.m. on July 12, with the appellant, and they
stayed at the house for approximately 2 5 minutes. Steve also
testified that the two returned to the ~leminghouse at about 7:30
a.m., Willie called his boss, Tom Tucker, and the two left about 20
minutes later. Willie's sister, Billie Jo Blackburn, confirmed her
brother, Steve's testimony. This was the last time Steve and
Billie Jo saw Willie Fleming alive.
The appellant, however, testified that he went to the Spindler
house on July 11, 1991, at about 7:00 or 7:30 p.m. for drinks. He
stated that Cheryl and Mitch Spindler were there and so was Willie
Fleming, who was introduced as "Jim." He further testified that
Mick and Lorraine arrived about 45 minutes later. The appellant
stated that he had no gun when he was in the Spindler residence but
there was a gun owned by Mitch that was in view. He further
testified that when the group went to his house, he showed Mitch
one of his guns. At some point later, Cheryl, Mitch and Willie
left the appellant's house and Mick and Lorraine left some time
later. Mitch called the appellant later and suggested that he
return to the Spindler house so appellant packed up some things and
left.
The appellant testified that he arrived home around 3:00 a.m.,
cleaned the kitchen and went to bed. Later that morning, the
appellant was awakened by the sound of breaking glass, He woke his
wife, asked her to grab his gun and give it to him, which she did,
and he got dressed. According to his testimony, he proceeded into
the hall and down the stairs. As he approached the bottom of the
steps, he saw broken glass and someone he thought was Willie
Fleming in the direction of the kitchen. He confronted ~ i l l i eand
asked him to put his hands on his head and turn around. He said
Willie did not put his hands on his head but did turn around and
shortly thereafter, he started to come toward the appellant. The
appellant shot Willie in the leg and after a few seconds, Willie
sat down. The appellant then asked his wife for a towel and

applied it to Willie's leg. He then went to the phone to call the
police, but he saw Willie coming toward him. The appellant
retrieved a gun from his wife's purse in the closet and tried to
get Willie to stop coming toward him. H e stated that Willie backed
away for a short time and then came toward him again in a position
to tackle the appellant. The appellant aimed the gun at Willie and
though he testified that he tried to hit him in the abdomen or his

leg, he fired and hit him in the head. The appellant picked up the
phone and called the police at 911.
When the police arrived, the appellant was on the telephone
and his wife was also in the residence. Willie was lying inside
the front door with his head toward the door. The EMTs entered

next, noted a wound in the leg and one in the head and checked for
pulses but found no signs of life. Lieutenant Walsh advised the
appellant of his Miranda rights and he was taken to the Public

Safety Building and then transported to the county jail. Trial was
held from January 13 through January 17, 1992. The appellant was
found guilty of deliberate homicide by a jury and sentenced to the
s t a t e prison for forty years with an additional 10 years for use of

a dangerous weapon. This appeal followed.
 The scope of review for evidentiary rulings and trial
administration issues by the trial court is whether the court
abused its discretion. Steer Inc. v. Department of Revenue (1990),
245 Mont. 470, 475, 803 P.2d 601, 604.
1. Taking notes by the Jury
The appellant a r g u e s "that t h e Judge and/or his Clerk had e x

parte contact with members of the Jury during the trial concerning
the taking of notes and ruled that they could not." The appellant
contends that this ex parte contact between the court and the jury
was improper and was reversible error. The State counters that the
majority of jurisdictions hold that the matter of note-taking is
within the sound discretion of the court.
The appellant cites a Montana statute, which he argues
supports an argument that "[olnce a juror requests permission to
take notes that permission should be granted and the jurors who do
decided (sic) to take notes must be permitted to make use of them
during deliberation^.^^ Section 46-16-504, MCA, states:
Upon retiring for deliberation, the jurors may take with
them the written jury instructions read by the court,
notes of the proceedings taken by themselves, and all
exhibits that have been received as evidence in the cause
that in the opinion of the court will be necessary.
his statute does not concern whether a juror may take notes in the

first place, but whether a juror may take the notes upon retiring
to the jury room for deliberation. It is not applicable.
Case law supports the State's argument that the matter of
note-taking is within the discretion of the court. In fact, l 1 i t

has never been suggested that the judge must permit the practice;
the question has always been whether he must forbid it. Moreover,
it is at most a matter of discretion.I1 United States v. Campbell
(N.D. Iowa, W.D. 1956), 138 F. Supp. 344, 352. The decision as to
whether jury members may take notes is a matter within the
discretion of the court. United States v. Murray (9th Cir. 1973),
492 F.2d 178, 193; United States v. Johnson (6th Cir. l978), 584
F.2d 148, 157; United States v. Anthony (8th Cir. 1977), 565 F.2d
533, 536; People v. Ellinger (Colo. App. 1987), 754 P.2d 396, 397;
Alaska State Housing Authority v. Contento (Alaska 19671, 432 P.2d
117, 122; Billings v. People (Colo. 1970), 466 P.2d 474, 478. The
trial court did not err in prohibiting the jury from taking notes
during the trial.
The appellant further contends he and his counsel should have
been present when the judge told the jury they could not take
notes. We conclude that the judge's comment to the jury concerning
taking notes did not have a deleterious effect on the appellant's
case. The judge merely told the jury they could not take notes
during the trial because it might detract them from important
points of the case. The judge instructed on a matter that was
within his discretion. He did not remark about a fact in
controversy in the case nor did he say anything to influence the
jury in a certain direction. U.S. v. Madrid (9th Cir. 1988), 842

F.2d 1090, 1094-95. Madrid states "that a defendant must
demonstrate 'actual prejudice' resulting from an ex parte contact
to receive a new trial.'' Madrid at 1093. The appellant in this
case provided no information in his offers of proof in conjunction
with post trial motions for an acquittal or a new trial that would
point to any prejudice to the appellant.
In Rushen v. Spain (l983), 464 U . S . 114, 118-119, 104 S.Ct.
453, 455-56, 78 L.Ed.2d 267, 273, the court stated:

[ W j e have previously noted that the Constitution 'does
not require a new trial every time a juror has been
placed in a potentially compromising
situation ...[because] it is virtually impossible to
shield jurors from every contact or influence that might
theoretically affect their vote. There is scarcely a
lengthy trial in which one or more jurors do not h a v e
occasion to speak to the trial judge about something,
whether it relates to a matter of personal comfort or to
some aspect of the trial. The lower federal courts1
conclusion that an unrecorded ex parte communication
between trial judge and juror can never be harmless error
ignores these day-to-day realities of courtroom life and
undermines societyls interest in the administration of
criminal justice. (Citations omitted.)
Here, the judge gave a short message to the jury about a
matter within his discretion long before the jury entered
deliberations. The trial court did not abuse its discretion when
it informed the jury that they could not take notes, even if the
parties and their counsel are not present at the time.
2. Prior criminal Convictions of Two Witnesses

The appellant argues that the trial court abused its
discretion when it would not allow him to question two witnesses
about their prior criminal histories when the prosecution asked
about their " l e g a l troubles" on direct examination. The trial
court ruled in both situations that further testimony about prior
crimes would be irrelevant.
The State argues that Rule 609, M.R.Evid., which states that
"[for] the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime is not
admissible," prohibited the appellant from inquiring further into
the criminal history of the two witnesses. However, the State did
inquire about the previous crimes on direct examination.
The better argument is that the determination of relevancy is
a matter within the discretion of the court. "The District Court
has broad discretion to determine whether or not evidence is
relevant. Absent a showing that the District Court has abused its
discretion, this Court will not overturn the District Court's
determination of relevancy." State v. Sadowski (1991), 247 Mont.
63, 69, 805 P.2d 5 3 7 , 541. The State's attorney questioned Cheryl
about a recent charge for obtaining dangerous prescription drugs.
The attorney elicited that the charge had been dropped from a
felony to a misdemeanor and she pled guilty and was sentenced. She
stated that the charge had nothing to do with her testimony at the
appellant's trial. Mick testified that he had been residing at the
Great Falls Pre-Release Center, having been transferred from the
Montana State Prison. He was sent to prison on a conviction for
felony possession of dangerous drugs with intent to sell. When the
defense counsel tried to inquire further into the witness1 prior
criminal history, the State objected and stated that "further
inquiry into that is not relevant under Rule 608 of the Rules of
Procedure that has any probative value of the Defendant's
truthfulness or untruthf~lness.~~The trial court agreed and
sustained the objection. See Rule 608, M.R. Evid. and Commission
Comments. No offers of proof were made. We conclude that the
trial court did not abuse its discretion in ruling that evidence of
other prior crimes of the two witnesses was irrelevant.
3. Introduction of Evidence Regarding Non-witness Mitch Spindler
The appellant states that granting the State's motion to
exclude evidence concerning Mitch Spindler was a reversible error.
The State counters that any evidence about Mitch ~pindler,a non-
witness was irrelevant. We agree.
Mitch Spindler was an associate of Willie Fleming, the
deceased, and the appellant. He was present at the parties the
night before the shooting death of Willie Fleming and would have
testified had he not died before the time of trial. However, the
evidence of his lifestyle and former criminal history was
irrelevant to the homicide of Willie Fleming on the morning of July
12, 1991. The trial court did not abuse its discretion
excluding evidence of the non-witness Mitch Spindler.
4. Allowing the State to Use 404(b) Evidence
The appellant argues that the State promised not to put on any
Rule 404(b) evidence at trial but then questioned witnesses about
actions and statements of the appellant on the evening prior to the
shooting death. The State argues that these actions and statements
are part of the res gestae of the homicide and not "other actsn as
the appellant claims.

Rule 404(b), M.R. Evid., states:
Other crimes, wrongs, acts. Evidence of other crimes,
wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity
therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
 mistake or accident.
The appellant contends that evidence of a conversation between
himself and the Spindlers about the appellant shooting Mick
Jacobson, evidence that the appellant was angry and upset about the
death of his father and evidence that he was "brandishing" a gun
during the evening was evidence of other acts and therefore, the
State should have provided a "Just" notice.
Cheryl Spindler testified to the following conversation
between herself, her husband and the appellant:
As we were going up Excelsior he asked Mitch and I if we
had ever witnessed a murder and we says, "No, and we
never want to, and he proceeded to say that he was going
to get Mick up at his house, Mick was coming up, he was
going to get Mick up to his house and he said that he was
going to kill him and make it look like a burglary but he
didn't want any witnesses around. He wanted Mitch and I
to leave when Mick got up there.
Lorraine Valentine, Mick Jacobson and Cheryl Spindler also
testified that the appellant had a gun during the evening and was
"waving it around, putting it in and out of the case, holding it in
his hand." The State contends that the conversation above and the
appellant's waving the gun around show the appellant's state of
mind and as such are relevant to the crime.
We agree. As stated in State v. Riley (1982), 199 Mont. 413,

This Court has identified several kinds of evidence which
may be admitted despite the fact it tends to prove crimes
other than those charged. See State v. Meidinger (1972),
160 Mont. 310, 321, 502 P.2d 58, 65, wherein this Court
allowed evidence of crimes committed in preparation for
the charged offense as part of res qestae. In addition,
in State v. Frates (1972), 160 Mont. 431, 437, 503 P.2d
47, 50, we allowed evidence of prior drug sales between
the defendant and the police informant as "part of the
 corpus delicti of the crime ...charged." In a series of
recent cases, the Court held that evidence of crimes
which is inextricably or inseparably linked with the
crime charged may be admitted without regard to the rules
governing "other crimesM evidence.
The common thread tying these cases together is the
fact that the State is entitled to present the entire
corpus delicti of the charged offense including matters
closely related to the offense and explanatory of it,
even when such evidence discloses crimes other than those
charged. (Citations omitted.)
"This rule overrides the requirements of Just." State v. Gillham
(l983), 206 Mont. 169, 178, 670 P.2d 544, 549. We conclude that
the appellant's statements and actions are relevant to his state of
mind and actions in the early morning of July 12, 1991. The trial
court did not abuse its discretion in allowing this evidence to
come in because it was relevant to the appellant's state of mind
and the crime charged.
5. Juror Misconduct
The appellant argues "that a new trial was necessary because
of jury misconduct." Specifically, the appellant complains that:
1. The jurors conducted an experiment in which some
jurors "acted out" the possibility that the decedent was
trying to get away at the time he was shot.
2. A juror felt pressured by other jurors to decide
the case.
3. A juror informed the other jurors that he had
personal knowledge that a telephone log was kept of all
telephone calls made from the jail.
4. The jury used a "blow up of a detective's crime
scene sketch."
5. Some of the jurors had to intermingle with
spectators during breaks of the trial.
The trial court concluded that the allegations of juror
misconduct did not fall within the Xexceptionsof Rule 606(b), M.R.
Evid., and therefore granted the State's motions to strike the
single juror's affidavit the appellant sought to introduce and to
quash the subpoenas issued to jurors who had been interviewed by
the defense investigator. As to the appellant's allegations of
juror misconduct, the trial court stated:
All I can do is consider that youtre talking about the
frame of mind of the jurors during their deliberations
and whether they were influenced by any of the
activities during the course of the trial. Again, that Is
covered by the Rule 6 0 6 (b), you're not allowed do to
(sic) that. And so that motion is denied. All on the
basis of the application of the Rule 606(b).
We agree with the trial court's rulings that under Rule 606(b),
M.R. Evid., these are not matters that fall within the rule's
exceptions and are therefore not matters about which the court can
inquire. Rule 606(b), M.R. Evid., states that:

Inquiry into validity of verdict or indictment. Upon an
inquiry into the validity of a verdict or indictment, a
juror may not testify as to any matter or statement
occurring during the course of the jury's deliberations
or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to
assent or dissent from the verdict or indictment or
concerning the juror's mental processes in connection
therewith. Nor may a juror's affidavit or evidence of
any statement by the juror concerning a matter about
which the juror would be precluded from testifying be
received for these purposes.
However, as an exception to this subdivision, a
juror may testify and an affidavit or evidence of any
kind be received as to any matter or statement concerning
only the fallowing questions, whether occurring during
the course of the jury's deliberations or not: (1)
whether extraneous prejudicial informationwas improperly
brought to the jury's attention; or (2) whether any
outside influence was brought to bear upon any juror; or
(3) whether any juror has been induced to assent to any
general or special verdict, or finding on any question
submitted to them by the court, by a resort to the
determination of chance.
The five matters complained of by the appellant do not fall
within the three exceptions to Rule 6 0 6 (b), M.R. Evid. They are
associated with either the mental processes of the jurors or come
within the knowledge and experience they bring with them to the
jury room. Harry v. Elderkin (l98l), 196 Mont. 1, 7-8, 637 P.2d
809, 813, is instructive concerning whether jury affidavits may be
used to impeach a jury verdict. Harrv states:

The cases on the use of juror affidavits fall into
two major categories: 1) those involving external
influence on the jury and 2) those involving internal
influence on the jury. Where external influence is
exerted on the jury or where extraneous prejudicial
information is brought to the jury's attention, juror
affidavits can be the basis for overturning the judgment
if either party was thereby deprived of a fair trial. On
the other hand, juror affidavits may not be used to
impeach the verdict based upon internal influences on the
jury, such as a mistake of evidence or misapprehension of
the law. (Citations omitted.)
Harry, 637 P.2d at 813. In the present case, the appellant's
complaints fall within internal influences and therefore, cannot be
used to impeach the jury verdict. The jury's use of demonstrative
evidence and experimentation with the evidence are not external
influences but part of the mental processes of the jurors during
deliberation. State v. DeMers (1988), 234 Mont. 273, 277-278, 762
P.2d 860, 863. Pressure by other jurors also does not qualify as
an exception to Rule 606(b), M.R. Evid. "A juror's physical,
mental, and emotional condition is inherent in the verdict, and the
effect of such a condition on a juror's vote is within the
prohibition of Rule 606 (b)." DeMers, 762 P.2d at 863.
Additionally, knowledge and information shared from one juror to
another or others is not an extraneous influence. "Jurors are
expected to bring to the courtroom their own knowledge and
experience to aid in the resolution of a case. . . . For the juror
to have considered the credibility of defendant's expert witness
within the parameters of his own experience and background is
insufficient to qualify as an exception to Rule 606(b)." DeMers,
762 P.2d at 863.
Finally, although the appellant states that the jurors were
subjected to the "heavy atmosphere" of the trial and some jurors
used a restroom that was also used by spectators at the trial, some
of whom were the decedent's relatives and friends, the appellant
can point to no specific instance where the jurors were bothered or
influenced by any of the spectators.
In conclusion, the trial court did not abuse its discretion
when it ruled that defense counsel could not impeach the jury
verdict through affidavits and testimony because there were no
external prejudicial influences on the jury.
AFFIRMED.

We Concur:

Chief Justi
,
 June 1, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Michael Donahoe
Donahoe & Yeshe
P.O. Box 413
Helena, MT 59624

Hon. Joseph P. Mazurek, Attorney General
Cregg W. Coughlin, Assistant
Justice Bldg.
Helena, MT 59620

Robert M. McCarthy, County Attorney
Brad Newman, Deputy
Butte-Silver Bow County Courthouse
Butte, MT 59701

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF, MONTANA

BY:
Depu
%i
i