State v. Walker

NO. 96-062
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Carrie L. Garber and Jeffrey G. Michael,
Deputy Public Defenders, Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Jennifer Anders, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana

Submitted on Briefs: August 22, 1996
Decided: December 27, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the court.
Defendant Dale R. Walker appeals from the judgment and

commitment entered by the Thirteenth Judicial District Court,

Yellowstone County, convicting him of felony forgery. We affirm.

The issues on appeal are as follows:

1. Did the District Court err by admitting into evidence

still-frame photographs made from the original bank surveillance

tape?
2. Did the District Court err in denying Walker's motion for

a mistrial when one of the State's witnesses testified that he was

familiar with Walker from past forgery investigations?

3. Did the District Court err in denying Walker's motion for

a new trial on the ground of jury misconduct?

FACTS

On the afternoon of December 13, 1994, a man identifying

himself as Terry L. Bergstrom approached teller Mary Jo Kellison at

the Security Federal Bank in Laurel, Montana, and attempted to cash

a $2000 check. The check was issued by the Edward D. Jones Co. to

Terry L. Bergstrom on the custodial account of Wendy Jo Bergstrom.

The check was endorsed with both signatures and what appeared to be

corresponding social security numbers. Mary Jo requested approval

from her supervisor, Vickie Ripley, before cashing the check.

Vickie refused to approve the transaction because she did not

recognize the customer. She told Mary Jo that the check would be

approved if the customer opened an account.

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 The customer agreed to open both a checking and savings

account and presented Mary Jo with a temporary driver's license

which identified him as Terry L. Bergstrom. After completing the
paperwork necessary to open the accounts, $1000 was deposited into

the checking account, $500 into the savings account, and $500 was

distributed to Mr. Bergstrom, along with a new checking account kit

containing eight counter checks.

Later that afternoon, Vickie received a call from the Billings

branch of Security Federal Bank. Mr. Bergstrom was at the Billings

branch trying to cash a $600 counter check and the bank was calling
to request a signature verification. Vickie became suspicious

since she knew that Mr. Bergstrom had just received $500 cash back

from the $2000 deposit he made earlier that day. She told the

Billings branch not to cash the check since Mr. Bergstrom did not

have a picture ID and there was no signature card on file with the

bank.

The Laurel branch of the bank subsequently ran the name "Terry

Bergstrom" through their computer and discovered that the bank had

processed a mortgage loan in the name of "Tim and Terry Bergstrom."

The bank attempted to contact Terry Bergstrom to find out what was

going on. Mary Jo was able to reach the Tim Bergstrom residence

and discovered that "Terry L. Bergstrom" was a woman. The bank

then contacted the police.
Laurel Police Officer Bryan Fisher obtained the surveillance

tape from the bank and asked Officer Brett Lund, a forgery

specialist with the Billings Police Department, to view the tape

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and the forged check. After viewing the signature and the
videotape, Officer Lund believed that the signature had been forged

by Walker, whom he recognized from previous forgery investigations.

Officer Lund assembled a photographic lineup consisting of six

pictures, the first of which was Walker. Officer Fisher showed the
lineup to Mary Jo, Vickie, and a third bank employee who had been

present during the Bergstrom transaction. All three women
identified the man in photo No. 1 as the man who posed as Terry
Bergstrom.

On January 19, 1995, the State charged Walker by Information

with forgery, a felony, pursuant to 5 45-6-325, MCA. On June 12

through 14, 1995, a jury trral was conducted which resulted in a

guilty verdict. Walker filed a motion for a new trial, which the

District Court denied. On September 28, 1995, the District Court

entered its judgment and commitment, sentencing Walker to twenty

years in the Montana State Prison. This appeal followed.

ISSUE 1

Did the District court err by admitting into evidence

still-frame photographs made from the original bank surveillance

tape?
Before trial, the State learned that the bank's surveillance

tape was incompatible with a normal videotape machine. The tape

would only play well on the type of machine owned by the bank and

the bank would not release its machine because it would be left

without surveillance. The State had a copy of the videotape made

and a number of still-frame photographs were then produced from the

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copy. The original videotape was played for the jury on a normal
videotape machine but since the quality of the tape was poor, the
court allowed the jury to view the copy of the tape. The quality
of the copy was not much clearer than the original and the court

then allowed the State to admit the still photographs into

evidence.

Walker argues on appeal that the District Court erred in

admitting the photographs into evidence in violation of the "best

evidence rule" as codified in Rules 1001 through 1003, M.R.Evid.

Walker claims that the requirements of the best evidence rule
required the jury to view the original surveillance tape on the

bank videotape machine.

The State argues that Walker did not properly preserve the

"best evidence rule" argument for appeal and that even if the

District Court erred in admitting the photographs, such error is

not grounds for reversing the conviction since Walker cannot

demonstrate how the error affected his substantial rights.

During pretrial discussions Walker's attorney indicated he

would object to the admissibility of the photographs if they were

offered into evidence. The court suggested that the prosecutor be

prepared to lay a proper foundation as to whether the photographs

were true copies of the original tape. During the State's direct

examination of Officer Fisher, defense counsel made the following

statement to the court after the prosecutor indicated it was time

to talk about the videotape and the photographs:

DEFENSE COUNSEL: Well, I'm going to object on the best
evidence that the ---

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 THE COURT: Well, you may have to call a person from the
bank.

DEFENSE COUNSEL: I don't know that. The jury has the
right to see the entire tape, as well.

THE COURT: Let's proceed.

Officer Fisher was then asked to identify the still photographs

which were made from the videotape. Defense counsel objected for

lack of foundation and the court sustained the objection. The
State indicated it would lay the proper foundation for the

photographs with its next witness.

The State then called Michael Taylor as a witness. Taylor
owns a video and sound store and was the individual who made the

copy of the videotape and reproduced the still photographs. After

Taylor testified that the copy accurately reflected the content of

the original and that the photographs were accurate reproductions

from the tape, the State offered the photographs into evidence.

Defense counsel objected for lack of foundation and chain of

custody problems.
The court directed the attorneys into chambers where it

cautioned the prosecutor that a proper foundation would require

testimony from a number of witnesses. The court asked defense

counsel if he had any doubt about the tape being the original.

Defense counsel responded that he did not but indicated that the

best evidence was the original tape and not the copy. The court

stated that the prosecutor should lay the proper foundation, show

the original tape to the jury, and if the quality was poor, lay

additional foundation to allow the jury to view the copy. The

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court would then consider whether it would be necessary for the

jury to see the still photographs. The court assured defense
counsel that the jury would not view the photographs without seeing

the videotape. At that point, defense counsel agreed to waive his

prior objection regarding chain of custody and stated "as long as

you introduce that videotape and play it, the original, then I

don't care where you go from there."

Court reconvened and the original tape and copy were admitted

into evidence and viewed by the jury. The State then offered into

evidence the still photographs, whereupon defense.counsel objected
on three grounds: (1) lack of foundation; (2) chain of custody; and

(3) surprise. The court overruled the first two objections and,

after recess, defense counsel agreed that he was not truly

surprised that still photographs were going to be used and

therefore waived any objection in that regard. After establishing

that the photographs depicted events which were taped by the bank

surveillance camera during the time Walker was present in the bank,

t1 ne State offered the photographs into evidence.

PROSECUTOR: Your Honor, at this time I move into evidence
State's Exhibits 4 through 8 [the still-frame
photographs].
THE COURT: Any objection?

DEFENSE COUNSEL: No objection, Your Honor.
This court has consistently held that a party's failure to

object to an alleged error during trial precludes raising the issue

on appeal. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146,

151, 900 P.Zd 281, 284; Bridger v. Lake (1995), 271 Mont. 186, 193,

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896 P.2d 406, 410; State v. Arlington (1994), 265 Mont. 127, 151

875 P.2d 307, 321. Section 46-20-104(2), MCA, provides that
failure to make a timely objection during trial constitutes a

waiver of the objection except as provided in 5 46-20-701(Z), MCA.

Walker argues that the transcript shows that defense counsel

sufficiently objected to the admission of both the videotapes and

the still-frame photographs on "best evidence" grounds and that the

"objection" was never withdrawn. On the contrary, the record

indicates that when the still photographs were offered into

evidence, Walker was specifically asked if he had any objections.

Defense counsel said no. His prior objections for lack of

foundation, chain of custody, and surprise had all been withdrawn

or overruled and the photographs were admitted into evidence free

from any objection that the evidence violated the provisions of

Rules 1001 through 1003, M.R.Evid.

The record clearly indicates that Walker assented to the

photographs being admitted once the proper foundation was laid to

depict that they accurately represented the contents of the

videotape when Walker was present in the bank. Defense counsel's

earlier allusions to the original videotape being the "best

evidence" are not sufficient to constitute an adequate and timely

objection that admission of the photographs violated the best

evidence rule. As a result, the District Court was never given the

opportunity to rule on the matter and we therefore hold that Walker

is precluded from raising this evidentiary issue on appeal.

8
 ISSUE 2
Did the District Court err in denying Walker's motion for a

mistrial when one of the State's witnesses testified that he was

familiar with Walker from past forgery investigations?

On direct examination, Officer Lund testified that he

recognized Walker on the videotape because "I have had past

dealings with Mr. Walker . in regards to past forgery

investigations." Defense counsel objected and the court directed

counsel to chambers. The court asked the prosecutor if the State

had provided the defendant notice that it intended to introduce

evidence of past crimes as required by State v. Just (1979), 184

Mont. 262, 602 P.2d 957 (as modified in State v. Matt (1991), 249

Mont. 136, 814 P.2d 52). The prosecutor admitted that no Just

notice had been given. Defense counsel then moved for a mistrial.

The District Court denied the motion and stated that, instead, it

would admonish the jury to not consider the testimony. Court

reconvened and the jury was admonished to completely disregard any

references made to prior investigations Officer Lund had conducted

which apparently involved Walker.
Walker argues that Officer Lund's statement was clearly

inadmissible. Walker relies on State v. Anderson (1996), 275 Mont.

344, 349, 912 P.2d 801, 804, where we stated that it is inevitable

that the introduction of evidence of a prior crime will have some

prejudicial effect on a defendant. Moreover, Walker argues that

the court's curative admonition cannot eliminate the taint of

Officer Lund's testimony.

9
 We review a district court's denial of a motion for a mistrial
to determine whether there is clear and convincing evidence that
the court's ruling is erroneous. State v. Rendon (1995), 273 Mont.

303, 306, 903 P.Zd 183, 185. We have recently clarified the

criteria the district court should use when ruling on a motion for

a mistrial. The,court will grant a mistrial when there is either

a demonstration of manifest necessity or where the defendant has

been denied a fair and impartial trial. State v. Ford (Mont.

Oct. 17, 1996), No. 95-158, slip op. at 9. Nevertheless, this

Court's role remains to determine whether there is clear and

convincing evidence that the court's ruling is erroneous.

In u, we announced the modified Just rule and stated that:

Evidence of other crimes, wrongs or acts may not be
received unless there has been written notice to the
defendant that such evidence is to be introduced.

Matt
-I 814 P.2d at 56. Officer Lund's statement that he recognized

Walker from previous forgery investigations was evidence of other

alleged crimes, wrongs, or acts. The State acknowledges that no

just notice was given. Thus, the statement should not have been

received into evidence.

We have stated that an error in the admission of evidence may

be cured if the jury is admonished to disregard it. State v.

Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098 (citing

State v. Conrad (19901, 241 Mont. 1, 19, 785 P.2d 185, 190).

Moreover, we have held that reversible error exists only where

there is a reasonable possibility that the inadmissible evidence

might have contributed to the conviction. State v. Cline (1996),

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275 Mont. 46, 57-58, 909 P.2d 1171, 1179 (Citing State v. Earl
(1990), 242 Mont. 279, 283, 790 P.2d 464, 466). In the present
case, Officer Lund testified that he recognized Walker on the

videotape and that Walker's handwriting on the forged check was

familiar to him. Moreover, the jury had already heard Officer

Fisher testify that following the crime he presented a photo

line-up to Vickie, Mary Jo, and Lanaya Aafedt, a third bank
employee present in the bank on the day in question. Officer
Fisher stated that all three women identified Walker from the photo

line-up as the man who posed as Terry Bergstrom. Vickie, Mary Jo,

and Lanaya also made in-court identifications of Walker during

trial.

In light of the entire evidence presented in this case,
combined with the court's prompt admonition to the jury, we

determine that Officer Lund's statement, by itself, did not

contribute to Walker's conviction. Receipt of Officer Lund's

statement into the record was, therefore, harmless error. We

conclude that the record in this case does not contain clear and

convincing evidence that the District Court's denial of Walker's

motion for a mistrial was erroneous and we hold that the court did

not err when it denied the motion.

ISSUE 3

Did the District Court err in denying Walker's motion for a

new trial on the ground of jury misconduct?

During deliberations the jury submitted a written question to

the court requesting the use of a magnifying glass. Defense

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counsel objected and the court wrote the jury back denying the

request. The jury wrote the court a second note as follows:

Your Honor, I feel it is necessary to inform you that
after you told us you 'couldn't provide us with a
magnifying glass' we discovered that a number of the
jurors have bifocals which magnified and one of the
jurors had a small strip of plastic used to magnify.
These proved very helpful to us, but I hope we didn't
impune [sic] the integrity of this jury.

As a result, defense counsel moved for a mistrial on the grounds

that the jury created a magnifying glass on its own and did an

investigation outside of what it heard in the courtroom. The

District Court stated that it would reserve ruling on the motion

for mistrial until after the jury reached a verdict.

Following the jury's guilty verdict, Walker moved for a new

trial, arguing that the jury's use of a magnification device

constituted extrinsic evidence. Walker attached to his supporting
brief transcribed interviews from two jurors. The juror statements

indicated that members of the jury had used a piece of plastic that
one member had taken from her purse to help them identify the

defendant and to view a tattoo on the defendant's arm which had

appeared on the videotape during trial. Relying~on United States

v. George (9th Cir. 1995), 56 F.3d 1078, the District Court denied

Walker's motion.

We review a district court's ruling on a motion for a new

trial to determine whether the court abused its discretion. Hando,

900 P.2d at 283. Absent an abuse of discretion the district

court's decision concerning whether or not to grant a motion for a

12
new trial will be affirmed. State v. Hatfield (19951, 269 Mont.
307, 310, 888 P.2d 899, 901.

On appeal, Walker presents a slightly different argument. He

does not argue that use of a magnifying glass constitutes extrinsic

evidence, or that use of a magnifying glass is prejudicial per se.

Instead, Walker argues that use of the makeshift magnification

device constitutes "extraneous prejudicial information" as defined

in Rule 606(b) Cl), M.R.Evid., resulting in jury misconduct. Walker

relies on State v. McNatt (1993), 257 Mont. 468, 849 P.2d 1050, and

State v. DeGraw (1988), 235 Mont. 53, 764 P.2d 1290, to argue that
the State failed to rebut the presumption of prejudice which

resulted from the alleged jury misconduct.

Rule 606(b) Cl), M.R.Evid., provides that a juror may not

testify as to what occurred during the jury's deliberations except

when the information pertains to whether extraneous prejudicial

information was improperly brought to the jury's attention. In

State v. Brogan (1995), 272 Mont. 156, 900 P.2d 284, we held that

juror affidavits may not be used to impeach a verdict based upon

internal influences on the jury. Broqan, 900 P.2d at 287 (citing

Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809, 813).

We must therefore determine whether use of the magnification

device constitutes an external or internal influence upon the jury.

It is only if use of the magnification device constitutes an

external influence that the juror statements may be considered to

determine if extraneous prejudicial information was brought before

the jury. Examples of external influence include a juror's

13
telephone call obtaining information with regard to previous
litigation by the plaintiff, visiting the scene of an accident, or
bringing a newspaper article about the trial into the jury room for

the jurors to see. Brogan, 900 P.2d at 287 (citing Geiger v.
Sherrodd (1993), 262 Mont. 505, 510-11, 866 P.2d 1106, 1109).

We turn to three recent decisions from the Ninth Circuit Court

of Appeals for direction. In George, the court concluded that the

jurors ' use of a magnifying glass, in and of itself, did not

constitute extrinsic evidence and that no new evidence resulted.

Georse, 56 F.3d at 1084. In United States v. Brewer (9th Cir.

1986), 783 F.2d 841, 843, the court held that the use of a

magnifying glass was indistinguishable from a juror's use of

corrective eyeglasses to examine evidence. Finally, in United

States v. Miranda (9th Cir. 1993), 986 F.2d 1283, 1286, the court

noted that a defendant alleging juror misconduct involving a

magnifying glass conceded, "as he must," that a magnifying glass is
not extrinsic evidence. It is clear that a jury's use of a

magnification device does not constitute extrinsic evidence.

Walker's argument that use of the magnification device created

"extraneous prejudicial information" as opposed to "extrinsic

evidence" presents only a subtle distinction. Since a jury's use

of a magnifying glass does not constitute extrinsic evidence, we

conclude that such use cannot be considered an external influence

exposing the jury to extraneous prejudicial information. The

jury's use of the makeshift magnification device was an internal

14
influence on its deliberation and the juror statements may
therefore not be used to impeach the verdict.
Moreover, even if we were to assume that the magnification

device was an external influence, thus allowing the juror

statements to be considered, the record does not clearly indicate

that the jury's use of the magnification device prejudiced the

defendant. One of the jurors said in her statement that use of the

plastic strip did not help identify the defendant and that "you

really could not identify that as the defendant" and "it only made

us, ah, even more unsure. I' Thus, there was no threshold showing of

prejudice for the State to rebut.
We conclude that the District Court did not abuse its

discretion when it denied Walker's motion for a new trial based on

jury misconduct.
Affirmed.

2fzsz- Justice

We concur:
Justice Terry N. Trieweiler concurring in part and dissenting in
part.

I concur with the majority's conclusion resolving the first

and third issues.

I dissent from the majority's conclusion that Detective Brett

Lund's testimony regarding other alleged crimes committed by the

defendant was harmless error.

I do not disagree with the majority's recitation of the facts,

nor its analysis of the law, which pertain to that issue. I do

disagree with its conclusion that based on other evidence, and the

court's admonition to the jury, there is no reasonable possibility

that the inadmissible evidence contributed to Walker's conviction.

Walker was charged with and convicted of forgery. The jury

was advised by a detective employed by the Billings Police

Department that he had investigated Walker for the very same kind

of crimes in the past and was familiar with him on that basis.

Evidence that a person accused of a crime has committed similar

acts in the past is among the most prejudicial types of evidence

that can be offered. That is why evidence of prior acts is

normally inadmissible. See Rule 404(b), M.R.Evid. That is why we

have established procedural safeguards for consideration of such

evidence, even when it falls within one of the exceptions to the

general rule. See Statev.Matt (1991), 249 Mont. 136, 814 P.2d 52.

Although there was other evidence from which the jury could

have found the defendant guilty of forgery, the jury apparently did

16
not consider the evidence conclusive, or it would not have bothered
sending two notes to the District Judge in which they requested

better equipment with which to view the bank's video tape, and told

the court that they had used a magnifying glass to view the still

photos taken from the bank's video tape. The jury's uncertainty
about the identity of the actual forger was apparently caused by

the fact that Walker's arms and hands were tattooed and no tattoos

were reported by eye witnesses who observed the forger on the day

in question.

Furthermore, I would conclude that the District Court's

admonition, while well intended and consistent with our prior

decisions, accomplished absolutely nothing. In fact, the course of

events following Detective Lund's improper testimony obviously

emphasized its significance. First of all, Walker's counsel was

required to state an objection on the record; then the trial judge

and attorneys retreated from the courtroom for a discussion outside
the presence of the jury; and finally, upon their return to the

courtroom the jury was instructed by the court to disregard

Detective Lund's previous testimony regarding prior involvement in

forgery investigations. By that time, it had to be obvious to the

jury that Detective Lund had inappropriately told them something

very significant, otherwise the defendant and the District Court

would not have been so concerned about it.
While there may be other circumstances in which a proper

admonition to a jury could be effective, this was not one of them.
The jury was simply told that the Billings Police Department had

17
reason to believe that this person, accused of forgery, had forged
other documents in the past. That was not the kind of information
that could be erased from the minds of those entrusted with the

responsibility for deciding Walker's guilt.

For these reasons, I dissent from the majority’s resolution of

Issue 2. I would conclude that because testimony was given

regarding crimes allegedly committed by the defendant in the past

without compliance with those procedural safeguards which we held

were necessary in Malt, Walker was denied a fair trial and the

District Court, therefore, abused its discretion when it denied his
motion for a mistrial.

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