No. 93-545
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
BENNETT JAMES PACE,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Julie A. Macek, Attorney at Law, Great Falls,
Montana
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Assistant Attorney General,
P a t r i c i a Jordan,
Kelena, Montana
Brant Ligh,t,County Attorney, Great Falls, Montana
.*..
A U G 1 0 1995
D Submitted on Briefs:
Decided:
May 4, 1995
August 10, 199
Filed:
f
'Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a judgment based upon a jury verdict in
the Eighth Judicial District Court, Cascade County, and the court's
sentence. We reverse and remand.
Defendant, Bennett James Pace, presented four issues for
review, but we have determined one issue is dispositive of this
case :
Did the District Court err in admitting evidence of alleged
other acts pursuant to Rule 404(b), M.R.Evid.?
Facts
On October 8, 1991, two Jehovah's Witnesses entered the home
of Donald John McLeod and found him dead on the floor, partially
nude. The estimated date of death was October 6, 1991.
Mr. McLeod suffered multiple stab wounds to the chest with
fatal wounds to the heart. A knife, covered with blood of the same
type as the victim's blood, was found on the floor at the crime
scene and was determined to be consistent with the weapon that
caused the injuries. No latent fingerprints were found on the
knife. The lead investigator of the case believed the knife to be
from Mr. McLeod's kitchen. However, relatives were unable to
identify the knife.
Based on the physical evidence, the police theorized the
murder occurred during a burglary. An entry door appeared forced
open. The doorknob was pulled off and the molding was broken. The
house appeared to have been ransacked, with items strewn around the
kitchen, living room, and bedroom. Several witnesses testified the
victim generally kept his house neat and clean. Blood stains on
the carpet under papers and clothing scattered on the living room
floor indicated that the house had been ransacked after the murder.
Relatives of the family were unable to identify any missing
possessions of the deceased.
On September 4, 1992, defendant was charged by information
with deliberate homicide. Defendant was arrested on September 6,
1992, in Spokane, Washington. On April 2, 1993, the information
was amended, charging defendant with Count I, burglary, and Count
11, deliberate homicide under the felony murder rule as specified
in 5 45-5-102(1)(b), MCA, or in the alternative, deliberate
homicide, a felony as specified in § 45-5-102(1)(a), MCA.
The State filed a notice advising the defendant of its
intention to offer evidence of other crimes, wrongs or acts as
required under the Modified Just Rule in State v. Matt (1991), 249
Mont. 136, 814 P.2d 52. While the notice as given by the State
referred to a number of different incidents, we are concerned here
only with two specific incidents, evidence of which was admitted at
the trial.
The first incident involved an arrest in Missoula, Montana, on
February 21, 1991, in which defendant was picked up for panhandling
and charged with obstructing a peace officer and carrying a
concealed weapon. Defendant possessed a six-inch fillet knife and
identified himself using an alias. Additionally, defendant had two
wallets with him containing identification cards of three different
people.
In the second incident, the State introduced evidence that on
March 7, 1992, in Wenatchee, Washington, the defendant, using a
different name, was arrested for armed robbery. On his person were
found forty-six dollars taken from the victim and a knife.
In the course of the jury trial, the District Court overruled
defendant's objections to the evidence and advised the State it
could present evidence of the two above-described incidents. The
jury returned a verdict, on April 22, 1993, finding defendant
guilty of burglary and deliberate homicide under the felony murder
rule. A sentencing hearing was held on July 28, 1993, at which
time the District Court pronounced sentence.
Defendant appeals from the judgment.
Issue
Did the District Court err in admitting evidence of alleged
other acts pursuant to Rule 404(b), M.R.Evid.?
In State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621,
623, we set forth the standard of review of evidentiary rulings.
The standard we use is whether the District Court abused its
discretion. "The I 1 istrict
D [Clourt has broad discretion to
determine whether or not evidence is relevant and admissible, and
absent a showing of an abuse of this discretion, the court's
determination will not be overturned." w, 852 P.2d at 623
(citing State v. Crist (19921, 253 Mont. 442, 833 P.2d 1052).
The evidentiary rule at issue is as follows:
Rule 404. Character evidence not admissible to prove
conduct, exceptions; other crimes; character in issue.
(b) 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.
Defendant objected to the State's introduction of evidence
involving defendant's actions in Missoula, Montana, and Wenatchee,
Washington, where defendant's knife was confiscated in both
incidents. Defendant argues, while the District Court determined
the other acts were used to show "opportunity, identity, and
intent," the only purpose they served was to show bad character.
Defendant refers to our decisions in Matt and more recently, State
v. Johnston (1994),267 Mont. 474, 885 P.2d 402, where we discussed
admission of other acts when used to infer a defendant's character.
In Johnston, we stated:
To insure that prior crimes are not used to prove a
bad character, this Court has established a four-part
test to determine the admissibility of evidence of other
crimes or acts in criminal prosecutions. Matt, 814 P.2d
at 56. The four elements of that test are: (1) the
other crimes, wrongs, or acts must be similar; (2) the
other crimes, wrongs, or acts must not be remote in time;
(3) the evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show that he acted in conformity with such character; but
may be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident;
(4) although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusing the issues, misleading of
the jury, considerations of undue delay, waste of time,
or needless presentation of cumulative evidence. Matt,
814 P.2d at 56. This rule modified the Just rule, which
originally set forth the basis for admission of other
crimes, wrongs, or acts.
Johnston, 885 P.2d at 404-05.
Defendant asserts the State did not meet the first prong of
the test and therefore failed to establish that the other acts were
similar. In his analysis, the defendant points out that the State
alleged the defendant was guilty of burglary which required that it
prove the defendant knowingly entered or remained unlawfully in an
occupied structure with the purpose to commit an offense. Section
45-6-204(1), MCA. In a similar manner, in order to prove the
defendant guilty of deliberate homicide under the felony murder
rule, the State was required to prove the defendant attempted to
commit, committed, or was legally accountable for the attempt or
commission of burglary and, in the course of such burglary, the
defendant or any person legally accountable caused the death of the
,
victim. Section 45-5-102(1)(b) MCA. Last, in order to prove the
allegations of deliberate homicide, the State was required to prove
the defendant purposely or knowingly caused the death of another
human being. Section 45-5-102(1)(a), MCA.
On the issue of similarity, the defendant analogizes the
nature of the conduct in the three incidents as follows:
Missoula panhandling incident in February 1991--involved
obstructing a police officer and the carrying of a knife as a
concealed weapon. The offense occurred on a street.
Charged offense here in Great Falls in October of 1991--nature
of the conduct was burglary and deliberate homicide (felony
murder rule) which occurred in a residence.
Wenatchee incident in March, 1992--involveda robbery without
adequate proof as to where the offense occurred.
With regard to possession or use of a weapon:
Missoula incident--knifewas in pocket and also in a bag when
searched--knifewas not used in the commission of any offense
and the knife was seized by the police.
Great Falls incident--knifeused as a murder weapon, and knife
was found at the scene and seized by the police--it may have
belonged to the victim or to the defendant.
Wenatchee incident--testimonyfails to establish how or if the
knife was used--no specific showing that the knife was used in
the commission of any offense, and that knife also was seized
by the police.
Number of persons charged and number of victims:
Missoula incident--only defendant arrested and there was no
victim.
Great Falls incident--only defendant arrested and there was
the one murder victim.
Wenatchee incident--defendantwas one of two men arrested and
there were two victims.
Continuing that discussion, defendant argues that proof
defendant had a knife in Missoula would not prove he had the
opportunity to stab the victim in Great Falls because the police
took the knife away from him. Likewise, proof that the defendant
possessed a knife in March 1992 would not be relevant to show that
he killed Mr. McLeod with a knife which was left at the scene of
the crime. Defendant argues that the other acts evidence at most
gives rise to the inference that because he had a knife at a
different time or times, he must have had one at the time of the
offense. Defendant asserts this is merely an inference of
propensity offered to prove character and prohibited under Rule
404 (b), M.R.Evid.
We agree with defendant's analysis and conclusion on this
point. The mere fact that defendant had a knife in his possession
on two occasions does not demonstrate the likelihood of his killing
the deceased with a knife.
The State argues that the evidence shows a similar intent to
obtain other person's property by use of a knife as a weapon. The
State argues that the carrying of knives in the two other incidents
makes it more probable that defendant would have carried a knife at
the time the homicide occurred. This argument is particularly weak
in view of the presence of knives in the dwelling of the decedent
so that it was not necessary that the defendant even bring a knife.
The State also contends that it introduced the evidence of the
other acts to show defendant's intent to attack peop1.e with knives
to get property and to use aliases to escape detection, to show the
opportunity to commit the crime, and to show the identity of the
perpetrator. The State also contends that the admission of the
other acts evidence after the cautionary instructions did not
constitute unfair prejudice to the defendant. The other acts were
of lesser crimes and would, therefore, not increase a juryr desire
s
to punish the defendant. Furthermore, the State contends the
cautionary instructions given minimized the danger that the jury
would use the evidence to infer the defendant had a propensity for
bad character.
We stated, in m, "the general rule of Rule 404(b) must be
strictly enforced except where a departure is clearly justified,
and exceptions to the rule must be carefully limited. [Citations
omitted] . " m, 852 P.2d at 623. Evidence of other acts must
satisfy all four elements of the Modified Just Rule before it can
be admitted. m, 852 P.2d at 623, 625. We need not look to
opportunity or intent if the other acts are not similar. See Matt,
814 P.2d at 5 7 .
In Matt, we concluded that an incident where the defendant
intended to further assault his female assault victim, although he
assaulted an intervening police officer, was not sufficiently
similar to an assault intended directly at a police officer. Matt,
814 P.2d at 57. We have also held that crimes of forgery and
burglary were not sufficiently similar because they are distinctive
and their respective elements are quite different. Johnston, 885
P.2d at 405.
In the present case, the defendant's other acts consisted of
using an alias, obstructing a police officer, robbery, and carrying
concealed knives. We summarize our conclusion as to the similarity
of these acts to the offenses charged as follows. The fact that
defendant used an alias and obstructed a police officer is not
relevant in proving the act of burglary-homicide. Robbery on a
street is not necessarily similar nor comparable to burglary within
a dwelling resulting in homicide. ~efendant's act of carrying a
knife while panhandling is not in any way similar to the use of a
knife in the course of a burglary-homicide. Defendant's act of
carrying a knife in the Wenatchee incident, where it was unclear as
to whether the knife was even used, also lacks similarity to the
use of a knife in the course of a burglary-homicide. We,
therefore, hold defendant's other acts are dissimilar in their
respective elements from the act of burglary, deliberate homicide
through felony murder, or plain deliberate homicide.
We hold defendant's other acts are not sufficiently similar to
the charged offense to satisfy the first element (similarity of
acts) of the Modified Just Rule. As in Johnston, we detevmine
there is no need to analyze subsequent elements of the Modified
Just Rule because the first element was not met. See Johnston,
885 P.2d at 405.
We conclude the District Court abused its discretion in
admitting evidence of the other acts pursuant to Rule 4 0 4 ( b ) ,
M.R.Evid.
The judgment is reversed and this case is remanded for a new
trial.
We concur: