No. 94-195
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RENO MCLAUGHLIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Scott A. Albers, Attorney at Law, Great Falls,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Jennifer
Anders, Ass't Attorney General, Helena, Montana
Brant Light, Cascade County Attorney, Great Falls,
Montana
Submitted on Briefs: July 6, 1995
Decided: September 8, 1995
Justice W. William Leaphart delivered the Opinion of the Court.
Appellant Reno McLaughlin appeals from his convictions in the
Eighth Judicial District Court, Cascade County, for two counts of
sexual intercourse without consent and his designation as a
dangerous offender. We affirm.
S.R.M. is the natural mother of J.K.M., a ten-year-old male,
and J.M.M., a five-year-old female. S.R.M. is married to
McLaughlin. McLaughlin is not the children's biological father.
After enduring a period of sexual abuse by McLaughlin, J.K.M. and
J.M.M. informed their mother that they were being molested by
McLaughlin.
S.R.M. contacted the police and took steps to keep McLaughlin
from being alone with the children. At trial the children
testified that McLaughlin forced them to engage in a number of
sexual acts with him, including masturbation, oral intercourse,
vaginal and anal intercourse, and that he forced them to engage in
sexual contact with each other. J.K.M. and J.M.M. further
testified that McLaughlin threatened both children with a shotgun,
that he tried to run over J.K.M. with a motorcycle, and that he
threatened to harm members of their family. Additional facts
appear where necessary in the remainder of this opinion.
McLaughlin was charged by information with two counts of
sexual intercourse without consent in violation of § 45-5-503(l),
MCA. McLaughlin was found guilty by jury verdict and filed a
motion for new trial. The motion was denied. McLaughlin was
sentenced to twenty years in prison on each count, to run
2
consecutively. McLaughlin received an additional ten-year sentence
for his use of a weapon during commission of a crime. Finally,
McLaughlin was designated a dangerous offender for parole
eligibility purposes.
McLaughlin raises five issues on appeal.
1. Did the State fail to give McLaughlin Just notice under Rule
404(b), M.R.Evid., for the following sub-issues:
(a) Questioning J.K.M. regarding McLaughlin's
shotgun and threats to kill J.K.M. and his family?
(b) Questioning J.K.M. regarding McLaughlin's
alleged flight from police and attempts to remove/conceal
McLaughlin's shotgun?
(c) Questioning J.K.M. regarding McLaughlin's
confession to him of the murder of another individual and
the reasonableness of J.K.M.' s fear of being killed by
McLaughlin?
(d) Questioning J.K.M. regarding McLaughlin's
attempts to kill him by running over him with a
motorcycle?
(e) Questioning J.M.M. regarding McLaughlin's
threats to kill her?
(f) Questioning Officer Grubb regarding S.R.M.'s
hearsay statement to him that McLaughlin "had a violent
temper?"
(g) Questioning Officer Grubb regarding S.R.M.'s
hearsay statement to the police that McLaughlin "had
previously been in prison?"
(h) Questioning Officer Bellusci and obtaining the
statement that "evidently that gun was one that he had
when he was out to get his ex-wife --?'I
(i) Questioning McLaughlin regarding his alleged
bigamy at the time of his marriage to S.R.M.?
(j) QuestioningMcLaughlinregardinghis suspicions
that the possession of a particular gun mayhave been
illegal?
2. Did the State's use of an expert to testify to the
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truthfulness of a child witness violate McLaughlin's right to
confront the witnesses against him?
3. Did the State violate McLaughlin's right to a fair trial by
making improper comments during closing argument?
4. Did the District Court violate McLaughlin's right to a fair
trial when it admonished defense counsel not to object during
closing argument "until you have a real serious reason to do
it?"
5. Did the District Court improperly construe Rule 801(d) (1) (B),
M.R.Evid.?
Issue I
(a) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
McLaughlin's shotgun and threats to kill J.K.M. and his
family?
McLaughlin did not object at trial to the allegations
contained in sub-issue (a). We have held that the failure to raise
an issue before the district court bars a defendant from raising
the issue on appeal under § 46-20-104, MCA. State v. Arlington
(1994), 265 Mont. 127, 151, 875 P.2d 307, 321. Section 46-20-
104(2), MCA, provides:
(2) upon appeal from a judgment, the court may
review the verdict or decision and any alleged error
objected to which involves the merits or necessarily
affects the judgment. Failure to make a timelv obiection
during trial constitutes a waiver of the obiection exceot
as provided in 46-20-701(2). [Emphasis added.]
None of the exceptions in § 46-20-701(Z), MCA, apply to the instant
case. We hold that McLaughlin is barred from raising sub-issue (a)
on appeal and we need not further consider the merits of this sub-
issue.
(b) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
4
McLaughlin's alleged flight from police and McLaughlin's
attempts to conceal his shotgun from authorities.
Rule 404(b), M.R.Evid., provides that:
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.
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we held that
the State must provide notice, prior to trial, when it intends to
offer evidence of other crimes, wrongs, or acts at trial.
McLaughlin's objection was based upon a motion in limine which
did not address the question of any shotgun evidence. Further,
McLaughlin has not cited to any pretrial ruling which would have
limited the discussion of shotgun evidence. We hold that the court
did not err in overruling the objection.
(c) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning J.K.M. regarding
McLaughlin's confession to him of the murder of another
individual and regarding the reasonableness of J.K.M.'s fear
of being killed by McLaughlin.
In the context of the acts committed by McLaughlin, the
reasonableness of J.K.M.'s fear of being killed by McLaughlin was
not another crime, wrong, or act. Rather, J.K.M.'s fear of being
killed or harmed was closely tied to how McLaughlin was able to
force himself upon J.K.M. and J.M.M. through the use of fear and
intimidation. Therefore, gust notice does not apply.
After asking J.K.M. about his fear of being killed by
McLaughlin, the prosecutor asked J.K.M., "Do you think he is
capable of [killing you]?" J.K.M. responded "Yes" and the
5
prosecutor asked "Why?" McLaughlin's counsel objected, claiming
that this question was speculative. The court overruled the
objection and J.K.M. answered suggesting that if McLaughlin ever
got out of jail and saw J.K.M., J.K.M. would be dead. The
prosecutor then asked, "Let me get more specific. Has he ever
claimed to have killed anyone--." The court interrupted and
terminated that line of questioning. The question was never
completed and was never answered. More importantly, McLaughlin did
not properly object to this question on Rule 404(b) or Just notice
grounds. McLaughlin fails to demonstrate that the prosecutor's
unanswered questions in any way impaired his right to a fair trial.
We hold that this was not a reversible error. See Arlinston, 075
P.2d at 321.
(d) D~O4t~~~ State fail to give McLaughlin Just notice under
Rule M.R.Evid., for questioning J.K.M. about
McLaughlin's attempts to kill J.K.M. by running over him with
a motorcycle?
McLaughlin did not object at trial to questioning or testimony
about his attempts to kill J.K.M. by running over him with a
motorcycle. We have held that the failure to raise an issue before
the district court bars a defendant from raising the issue on
appeal under § 46-20-104, MCA. Arlinqton, 875 P.2d at 321. None
of the exceptions in 5 46-20-701(2), MCA, apply to the instant
case. We hold that McLaughlin is barred from raising this issue on
appeal.
(e) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning J.M.M. about
McLaughlin's threats to kill her?
McLaughlin did not object at trial to the questioning of
6
J.M.M. regarding his threats to kill her. We have held that the
failure to raise an issue before the district court bars a
defendant from raising the issue on appeal under § 46-20-104, MCA.
Arlinqton, 875 P.2d at 321. None of the exceptions in § 46-20-
701(2), MCA, apply to the instant case. Therefore, McLaughlin is
barred from raising this issue on appeal.
(f) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning Officer Grubb about
S.R.M.'s hearsay statement to him that McLaughlin "had a
violent temper."
During the prosecution's redirect examination, the following
statements were made regarding S.R.M. 's returning to the house that
she shared with McLaughlin:
PROSECUTION: And did she indicate that she felt that
would be a problem?
WITNESS: She indicated to me that Reno had a violent
temper.
MCLAUGHLIN'S COUNSEL: Objection, Your Honor, this goes
into 404(b), and no Just notice was filed.
PROSECUTION: The question is, did she indicate to you
there would be a problem if she returned to the home with
the kids; did you write anything about that in your
report?
While the witness' response touched on McLaughlin's violent temper,
the questioning did not attempt to elicit character-type or other
crimes evidence. McLaughlin fails to demonstrate that the
prosecutor's statements in any way impaired his right to a fair
trial. This was not a reversible error. See Arlinston, 875 P.2d
at 321. We hold that this was not a Rule 404(b) or JUSt notice
violation and did not deprive McLaughlin of a fair trial.
(g) Did the State fail to give McLaughlin Just notice under
7
Rule 404(b), M.R.Evid., for questioning Officer Grubb about
S.R.M.'s hearsay statement to the police that McLaughlin "had
previously been in prison?"
The State asked Officer Grubb to refer to his report to see if
it indicated whether the children's mother had any concerns about
taking the children back to the residence where McLaughlin resided.
The officer read from the wrong line of the report and gave a non
responsive answer to the effect that McLaughlin had previously been
in prison. The trial. transcript evidences that this was an honest
mistake by the officer and was not an error attributable to the
prosecution. More importantly, this was not an error that supports
a Rule 404(b) or Just notice violation. We note finally that the
judge admonished the jury to disregard the improperly read lines,
thus minimizing any harm to McLaughlin. We hold that the State was
not required to give McLaughlin Just notice under Rule 404(b),
M.R.Evid., for questioning Officer Grubb in an instance wherein he
mistakenly read a statement given to the police that McLaughlin
"had previously been in prison."
(h) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning Officer Bellusci and
obtaining the statement that "evidently that gun was one that
he had when he was out to get his ex-wife --I'?
McLaughlin objected that Officer Bellusci's statement that
"evidently that gun was one that he had when he was out to get his
ex-wife . . .lt was ixrelevant and prejudicial. The court granted
the defense's motion to strike the answer. McLaughlin's counsel
did not make a Rule 404(b) or Just notice objection. We have held
that the failure to raise an issue before the district court bars
a defendant from raising the issue on appeal under § 46-20-104,
8
MCA. Arlinqton, 875 P.2d at 321. None of the exceptions in 5 46-
20-701(2), MCA, apply to the instant case. We hold that McLaughlin
is barred from raising this issue on appeal.
(i) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning McLaughlin regarding
his alleged bigamy at the time of his marriage to S.R.M.
McLaughlin allegedly did not divorce his first wife before
marrying S.R.M. McLaughlin argues that because bigamy is a crime,
the State was required to give Just notice regarding its questions
about his marital status. We disagree. The State did not raise
the question of bigamy during its case-in-chief. Rather, it raised
the issue in its cross-examination of McLaughlin after he had
testified that he was married to S.R.M.
In a conference with the judge and counsel, away from the
jury, the judge concluded that evidence of bigamy pertained to
McLaughlin‘s credibility and was therefore admissible. We conclude
that the District Court correctly allowed this evidence.
McLaughlin testified that he was married to S.R.M. and that she had
coached the children to make false accusations of sexual abuse
because of a pending divorce which S.R.M. did not want. Having
testified about his marriage/divorce situation with S.R.M.,
McLaughlin opened the door to discussion of the legality of his
marriage in the first instance. We hold that the District Court
did not err in allowing the State to question McLaughlin regarding
his alleged bigamy at the time of his marriage to S.R.M.
(j) Did the State fail to give McLaughlin Just notice under
Rule 404(b), M.R.Evid., for questioning McLaughlin as to
whether he possessed a particular gun that may have been
illegal.
9
On direct examination McLaughlin testified that he possessed
a shotgun. Although McLaughlin testified that he possessed a
shotgun, McLaughlin conceded, on cross-examination, that he had not
identified the shotgun as his own. Rather, he testified that the
shotgun was given to him by a friend who was leaving town to work
as a traveling harvester. McLaughlin further testified that he
could not remember his friend's last name and that he referred to
him as "Fat Mike." Finally, McLaughlin testified that, by the time
of trial, he had not been asked to return the shotgun.
On cross-examination the prosecutor asked McLaughlin if he
knew that the shotgun was an illegal length. McLaughlin answered
that "I had my suspicions it was illegal, but I thought it was--"
whereupon his counsel objected. The judge ruled that the answer
went to McLaughlin's credibility. We agree.
Having testified about his possession of the shotgun on direct
examination, McLaughlin opened the door to cross-examination as to
the legality of the shotgun length. We hold that the questions as
to the legality of the shotgun were legitimate cross-examination.
Issue II
Did the State's use of an expert to testify to the
truthfulness of a child witness violate McLaughlin's
right to confront the witnesses against him?
McLaughlin did not object to expert testimony about the
truthfulness of child witnesses. We have held that the failure to
raise an issue before the district court bars a defendant from
10
raising the issue on appeal under § 46-20-104, MCA. Arlinqton, 875
P.2d at 321. None of the exceptions in § 46-20-701(2), MCA, apply
to the instant case. We hold that McLaughlin is barred from
raising this issue on appeal.
Additionally, we note that we are unaware of any Montana
authority prohibiting a qualified expert from testifying about the
credibility of a minor sexual abuse victim who has testified at
trial and whose credibility has been challenged. In State v.
Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298, we
held that this type of expert testimony is permitted in Montana.
Finally, given the nature of the defense's cross-examination of
J.K.M. and J.M.M., their credibility was sufficiently challenged to
warrant expert testimony about their credibility.
Issue III
Did the State violate McLaughlin's right to a fair trial
when the State referred to McLaughlin as 'I a sick
individual" and "pedophile" in its closing and when it
told the jury that McLaughlin "has inconvenienced all of
us to come here and conduct this trial?"
The relevant comments by the prosecutor are as follows:
PROSECUTION: They want you to think this is a vendetta
of the mother LS.R.M.1 and the defendant. For what?
They weren't even legally married. There was no divorce
here, and no need for one.
. . . .
There is no custody battle here, they are not his kids.
There is no reason for a custody battle, no reason for
any of that.
What's the reason for all of this? The reason is
you have got one sick individual there that likes to
molest children. It's a case of a pedophile.
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THE COURT: Sit down.
MCLAUGHLIN'S ATTORNEY: I must object. . . .
THE COURT: He can state that if he wishes . . . .
McLaughlin argues that we should apply State v. Statczar
(1987), 228 Mont. 446, 743 P.2d 606. McLaughlin urges that
Statczar stands for the proposition that attorneys should not
proclaim personal opinion to a jury as such proclamation invades
the province of the trier of fact.
In Statczar the prosecutor commented that the prosecutor's
office was too busy to prosecute innocent persons. Although we
disapproved of prosecutors expressing personal opinions in
Statczar, we found no evidence of undue prejudice.
We do not here consider whether the comments McLaughlin
challenges were accurate or appropriate. Rather we decide whether
the comments constituted undue prejudice depriving McLaughlin of a
fair trial. We do not condone this type of characterization in
front of a jury. However, considered in light of McLaughlin's
closing argument, which included suggestions that the mother
coached the children to falsely testify against him and that the
mother inappropriately influenced the prosecution, the prosecutor
was arguing that this was a case of psychiatric disorder
(pedophilia) rather than a case of witness coaching. We conclude
that McLaughlin has not shown, and we do not find, that these
comments constituted undue prejudice or denial of a fair trial.
McLaughlin's appeal brief also makes passing reference to the
fact that the prosecutor, during closing, suggested that "they
12
inconvenienced all of us to come here, and conduct a trial."
McLaughlin does not cite any authority as to why this would
constitute error nor does he present any argument to the effect
that the comment prejudiced him or denied him a fair trial. A
party asserting error by the district court must present argument,
supported by citation to legal authorities. Rule 23, M.R.App.P.
We note that the comment was made in the context of the State's
characterization (whether accurate or not) of the testimony of
defense witness Kathy Taylor who wrote a statement indicating that
she knew McLaughlin was not guilty. According to the State, Ms.
Taylor gave the statement to McLaughlin's mother. In closing, the
State was pointing out that, if this statement were so important to
the defense, it was incongruous for the defense to have not turned
that information over to the police or to the county attorney,
rather than inconveniencing everyone "to come here and conduct a
trial." When the comment was objected to, the prosecutor, in the
presence of the jury, stated that he was not talking about the
"client," McLaughlin. We conclude that the comment did not
constitute undue prejudice or deny McLaughlin a fair trial.
Issue IV
Did the District Court violate McLaughlin's right to a
fair trial when, after the State commented in its closing
that McLaughlin was a sick individual and pedophile, the
District Court told the defense, "Don't interrupt until
you have a real serious reason to do it?"
After the prosecutor's comments during closing, McLaughlin
objected, stating "I must object to the characterization of my
13
client as a sick individual and pedophile." The judge responded:
He can state that if he wishes. Now don't interrupt on
that, you know he can make those statements. Don't
interrupt until you have a real serious reason to do it.
McLaughlin argues that the court's response demonstrated to
the jury that the court did not consider such slander improper and
that it agreed with the prosection's comments . McLaughlin
concludes that the court's response to the objection impliedly told
the jury to convict McLaughlin and denied McLaughlin an unbiased
judge. We disagree.
McLaughlin presents no law, and we have found none, to suggest
that a judge may not instruct attorneys about their conduct. It
may have been preferable for the judge to have simply overruled the
objection, but because of the wide latitude generally afforded in
closing arguments, the judge's comments were permissible.
Particularly in light of our holding that the prosecutor's comments
which prompted the objection did not deny McLaughlin a fair trial,
we hold that neither did the judge's comments deny McLaughlin a
fair trial.
Issue V
Did the District Court improperly construe Rule
801(d) (1) (B), M.R.Evid.?
McLaughlin argues that testimony presented by police officers
about what J.K.M. and J.M.M. had stated during the police
investigation violated Rule 801(d) (1) (B), M.R.Evid. Although the
State does not raise the issue in its brief, the record indicates
that McLaughlin did not object to the testimony in question as
14
containing prior consistent statements in violation of Rule
801(d) (1) (B), M.R.Evid. As we indicated in Issue l(a) above, the
failure to raise an issue before the district court bars a
defendant from raising the issue on appeal under § 46-20-104, MCA.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur.
Chief Justice /
15
i
September 8, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Scott A. Albers
Attorney at Law
Cascade County Courthouse
415 2nd Ave. No., RM 110
Great Falls, MT 59401
Patrick L. Paul
Cascade County Attorney
Cascade County Courthouse
Great Falls MT 59401
Joseph P. Mazurek, Attorney General
, Assistant
Justice Building
215 N. Sanders
Helena MT 59620
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA