NO. 93-574
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v. OCT 20 1994
BETH ANN BRISTOW,
CLERK OF SUPREME COUH'I
Defendant and Appellant. STATE OF MONTANA
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0 Lympus, Judge presiding.
.
COUNSEL OF RECORD:
For Appellant:
Chris Christensen, Conrad, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Carol
Schmidt, Assistant Attorney General, Helena, Montana
Thomas J. Esch, County Attorney, Kalispell, Montana
Submitted on Briefs: July 13, 1994
Decided: October 20, 1994
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
Defendant Beth Ann Bristow appeals from a jury verdict of the
Eleventh Judicial District Court, Flathead County, finding her
guilty of accountability for aggravated kidnapping, and a judgment
sentencing her to 30 years in the Women's Correctional Facility and
designating her a dangerous offender for the purposes of parole
eligibility.
We reverse.
Defendant raises the following issues:
1. Did the District Court err in permitting the State to
inquire into the criminal history of defendant's witness?
2. Did the District Court err in admitting into evidence and
permitting the jury to view color photographs of the victim's
injuries?
3. Was there sufficient corroboration of the accomplices'
testimony?
Defendant and Tom Boesch had been common-law married since
1987. The marriage produced two children, Bruce and Ryan. In
February 1992, Boesch filed a petition for dissolution after
defendant decided to move with the children from the Kalispell area
to Battle Mountain, Nevada, to be near Rick Crosthwaite. Both
parties filed petitions for temporary custody of the two children.
Boesch was eventually awarded temporary custody of the children.
Following the custody hearing, defendant returned to Nevada and
began spending time with Dwayne Todd Cannady and Rick Smith,
friends of Crosthwaite. Cannady testified that defendant offered
him money to beat up Boesch, Cannady, Smith, and defendant drove
from Battle Mountain, Nevada, to Reno, Nevada, so that Cannady and
smith could rent a car, Thereafter, defendant drove back to Battle
~ountain. Cannady and Smith drove to Boeschls home in Whitefish
and attempted, unsuccessfully, to gain entry.
The next day, Cannady and Smith returned disguised as Easter
bunnies bearing candy and baskets, Boesch opened the door and was
attacked by the pair who used their fists, a hammer, and a padlock
tied to a bandanna. The children were locked in a bedroom while
Boesch was left tied up in another bedroom. Approximately two
hours later, Cannady telephoned an ambulance for Boesch. Cannady
and Smith pled guilty to the offense of aggravated assault for
their part in beating Boesch.
Defendant was charged with accountability f o r aggravated
kidnapping. While in chambers, defendant objected to the State's
attempt to introduce into evidence color photographs of Boesch's
injuries. The court allowed the photographs. Following the
State's case-in-chief, defendant moved to dismiss due to lack of
corroborative evidence to support the testimony of Smith and
Cannady. The court denied the motion. Over defendant's objection,
the State cross-examined defense witness Crosthwaite as to his
prior criminal history. Defendant moved for a mistrial; the court
denied the motion,
A jury found defendant guilty of accountability for aggravated
kidnapping, and the court sentenced her to 30 years in the Women's
Correctional Facility, designating her a dangerous offender for the
purposes of parole eligibility.
Defendant appeals.
ISSUE 1
Did the District Court err in permitting the State to inquire
into the criminal history of defendant's witness?
Our standard of review relating to rulings on the
admissibility of evidence is whether the trial court abused its
discretion in allowing the evidence. State v. Wing (1994), 264
Mont. 215, 870 P.2d 1368; State v. Stewart (1992), 253 Mont. 475,
833 P.2d 1085: Steer, Inc. v. Dep't of Revenue (1990), 245 Mont.
470, 803 P.2d 601.
Defendant was charged with aggravated kidnapping by
accountability pursuantto 5 5 45-2-302 and 45-5-303, MCA. In order
to convict defendant under 5 45-2-302, MCA, the State had the
burden of proving that she promoted or facilitated the aggravated
kidnapping of Boesch by soliciting, aiding, or abetting Cannady and
Smith. To that end, the State relied heavily on the testimony of
Cannady and Smith. In response, the defense relied heavily on the
testimony of Crosthwaite to rebut the testimony of Cannady and
Smith.
Prior to being questioned about his criminal past, Crosthwaite
gave substantial testimony in defendant's behalf. Crosthwaite
testified that he never heard defendant wish that Boesch would be
crippled or paralyzed. He testified that he had nothing to do with
the beating, and that he also believed defendant had nothing to do
with the beating. Crosthwaite testified that he never gave Cannady
money to beat Boesch. He testified as to Cannady's reputation in
the community for violence and dishonesty. Crosthwaite denied
furnishing Cannady and Smith with the money to rent a car and to
finance their trip to Montana. Crosthwaite testified that it was
contrary to defendant's character to hire someone to beat Boesch so
that she could regain custody of the children.
The State concluded its cross-examination of Crosthwaite with
the following:
BY MR. ESCH (for the State):
Q: Mr. Cannady ever blow up somebody's pickup truck?
A: No, sir.
Q: Do you know somebody who has?
A: Yes, sir.
MR. CHRISTENSEN (for defendant): Objection, Your honor.
That is not relevant.
THE COURT: Overruled.
BY MR. ESCH:
Q: Do you know somebody who has?
A: Yes, sir.
Q: Who?
MR. CHRISTENSEN: Objection, Your Honor. Continuing
objection. It is not relevant.
THE COURT: Okay. Overruled.
BY MR. ESCH:
Tell the jury who blew up somebody's pickup truck
in 1986?
I did, sir.
For revenge?
No, sir.
Why did you do it?
It was accidental.
You were convicted of blowing up somebody's pickup
truck?
Yes, sir.
BY MR. ESCH: I don't have any other questions.
Defendant argues that by allowing testimony about
Crosthwaite's criminal past, the court deprived her of a fair
trial.
Evidence of Crosthwaite's criminal history was offered to
impeach his credibility as a defense witness. That evidence should
have been excluded pursuant to Rule 609, M.R.Evid., which provides
that "[flor the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime is not
admissible." The rationale behind Montana's statutory prohibition
against inquiry into criminal history for impeachment purposes is
that impeachment by evidence of conviction of a crime has low
probative value in relation to credibility. Sloan v. State (1989),
236 Mont. 100, 104, 768 P.2d 1365, 1367. This rule also avoids the
highly prejudicial effect on a jury that is inherent in this type
of evidence. Sloan, 768 P.2d at 1367. There is a strong
possibility that a jury, hearing that a witness is a convicted
criminal, will immediately discredit the testimony of that witness.
Sloan, 768 P.2d at 1368.
However, the prohibition of Rule 609 must be weighed against
the prohibition of 5 46-20-701, MCA, which provides:
(1) [N]o cause shall be reversed by reason of any error
committed by the trial court against the appellant unless
the record shows that the error was prejudicial.
(2) Any error, defect, inequity, or variance which does
not affect substantial rights shall be disregarded.
The test this Court has adopted in determining whether the
prejudicial error requires a reversal is whether there is a
reasonable possibility that the inadmissible evidence might have
contributed to the conviction. State v. Bower (1992), 254 Mont. 1,
6, 893 P.2d 1106, 1109; ~rodniakv. State (l989), 239 Mont. 110,
114, 779 P.2d 71, 73; State v. Brush (1987), 228 Mont. 247, 252,
741 P.2d 1333, 1336. When assessing the prejudicial effect of an
error, we examine the totality of the circumstances in which the
error occurred. Brodniak, 779 P.2d at 74.
The State argues that the introduction of such evidence was
harmless error that neither prejudiced defendant nor contributed to
her conviction. We disagree. There is a strong possibility that
the jury dismissed Crosthwaite's testimony upon learning of his
criminal conviction, despite the low probative value of that
information in relation to his credibility. Given the importance
of Crosthwaite's testimony to the defense, there is a reasonable
possibility that the inherently prejudicial and inadmissible
evidence of his criminal history might have contributed to
defendant's conviction.
The record fails to disclose any appropriate reason for the
State's inquiry as to the prior criminal conduct of Crosthwaite.
We conclude that the prosecution's inquiry was improper under
Rule 609, M.R.Evid., and prejudicial under S 46-20-701, MCA.
We hold that the District Court abused its discretion in
permitting the State to inquire into the criminal history of
defendant's witness.
ISSUE 2
Did the District Court err in admitting into evidence and
permitting the jury to view color photographs of the victim's
injuries?
As with Issue 1, our standard of review on the admissibility
of evidence is whether the trial court abused its discretion.
Winq, 870 P.2d at 1372; Stewart, 833 P.2d at 1087; Steer, 803 P.2d
at 603.
The State submitted, and the court admitted into evidence,
four enlarged color photographs showing the severe injuries to
Boesch's face, legs, and back. Defendant argues that the
photographs were offered to arouse the sympathy of the jury, rather
than to show any material facts. As a result, defendant argues,
the photographs should have been excluded.
Photographs are admissible if they are relevant to describe a
person, place, or thing in the case. State v. Johnson (1986), 221
Mont. 503, 515, 719 P.2d 1248, 1256; Fulton v. Chouteau County
Farmers' Co. (1934), 98 Mont. 48, 54, 37 P.2d 1025, 1028. However,
otherwise relevant photographs are not admissible if their
probative value is outweighed by prejudice to the defendant. Rule
403, M.R.Evid.; State v. Mayes (1992), 251 Mont. 358, 371, 825 P.2d
1196, 1205; State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d
316, 320. The balancing of probative value against unfair
prejudice is a matter within the discretion of the trial court, and
a ruling on the admissibility of photographs will not be disturbed
on appeal absent abuse of discretion. Maves, 825 P.2d at 1205;
State v. Devlin (1991), 251 Mont. 278, 283, 825 P.2d 185, 188;
State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380.
Defendant was charged with accountability for aggravated
kidnapping. while the State had the burden of proving that the
victim suffered bodily injury under 5 45-5-303 (1) , MCA, the
(c)
record shows that bodily injury was not in dispute. Cannady and
Smith, as witnesses for the State, testified as to the bodily
injury they had inflicted on Boesch. Both testified that they had
been convicted of aggravated assault as a result of the bodily
injury they inflicted on the victim. Boesch testified for the
State as to the nature and extent of his injuries.
What was in dispute was whether, pursuant to 8 45-2-302, MCA,
defendant promoted or facilitated the commission of the aggravated
kidnapping by soliciting, aiding, or abetting Cannady and Smith.
Because bodily injury was not in dispute, the photographs were of
little or no probative value in establishing accountability for
aggravated kidnapping. In the absence of probative value, the
photographs were irrelevant to the State's case, and therefore,
could only serve to inflame the jury against the defendant. We
conclude that the probative value of the photographs was far
outweighed by their prejudicial effect on the jury to the detriment
of defendant.
We hold that the District Court erred in admitting into
evidence, and permitting the jury to view, color photographs of the
victim's injuries.
ISSUE 3
Was there sufficient corroboration of the accomplices'
testimony?
Because we have found reversible error on the evidence
concerning inquiry into the criminal past of a defense witness and
the admissibility of photographs, we decline to discuss further
evidence of sufficient corroboration.
We reverse and remand for a new trial.
We concur:
October 20, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Chris Christensen
Attorney at Law
315 South Main
Conrad, MT 59425
HON. JOSEPH P. MAZUREK, Attorney General
Carol Schmidt, Assistant
Justice Bldg.
Helena, MT 59620
Thomas J. Esch
Flathead County Attorney
P.O. Box 1516
Kalispell, MT 59903-1516
ED SMITH
*-
CLERK OF THE SUPREME COURT
ST.4TE OF MONTANA
BY: ov:
Deputy