No. 94-618
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
FEfj 74. 19$@
TODD COLIN OATMAN,
Defendant and Appellant. """51
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry D. Mansch and Marcia M. Jacobson, Public
Defender's Office, Missoula, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
John Paulson, Assistant Attorney General, Helena,
Montana
Karen S. Townsend, Deputy County Attorney,
Missoula, Montana
Submitted on Briefs: November 30, 1995
Decided: February 7, 1996
Filed:
CYerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Todd Colin Oatman appeals from his conviction of five counts
of robbery, in a jury trial in the Fourth Judicial District Court,
Missoula County. We affirm.
The issue is whether the District Court erred in denying
Oatman's motion in limine to ban any mention at his trial of the
guilty pleas made by Victor and Gene Camp to the same charges.
Just after midnight on August 22, 1993, Marla Wollgast, the
shift supervisor at the Pizza Hut restaurant on Brooks Avenue in
Missoula, Montana, noticed a car drive around the restaurant and
then stop in the parking lot. Three men got out of the car and
entered the restaurant, which had no other customers at that hour.
The men were dressed in camouflage jackets and wore gloves. The
tallest man appeared to be in his twenties and wore sunglasses and
a black wig. One of the others, who appeared older, wore prescrip-
tion glasses and a camouflage hat with ear flaps.
Waitress Sabrina Dulak asked the men if they preferred smoking
or nonsmoking seating. They gave conflicting responses. Then one
of them announced that they were undercover police officers on a
drug bust and were placing everyone under arrest. The tallest man
pulled out a revolver, pointed it at Wollgast and Dulak, and forced
the women back into the kitchen, where Elizabeth Olson was doing
dishes. The men ordered the three women to lie down on the floor
and tied their hands behind their backs with baling wire.
Mark Alexander, another Pizza Hut employee, returned from
delivering pizzas a few minutes later. The men forced him to lie
2
down in the kitchen and tied him up with baling wire like they had
the other employees.
Demanding instructions from the employees on how to operate
the restaurant's tills, the men opened each till and removed the
money from inside. They then took the employees' wallets, purses,
and money. The robbers left the restaurant after telling the
employees to stay put or get hurt.
After the robbers left, Wollgast was able to untie herself and
the others. Dulak called the police. The employees gave the
investigating officers descriptions of the robbers, and Alexander
made sketches of two of them.
Approximately a month later, an article appeared in the local
newspaper concerning four suspects in an attempted robbery of an
armored car. The article contained photographs of Oatman, Victor
Camp, Gene Camp, and Daniel Koening, and indicated that the men had
also been linked to the Pizza Hut robbery. The Pizza Hut employees
recognized the three Pizza Hut robbers from the newspaper photos
and contacted the police. The employees later picked out the
robbers from photo lineups.
Investigators searched Oatman's residence, Gene Camp's
residence, and a mini-storage unit rented by Gene Camp. They
recovered a camouflage jacket at Oatman's residence and two
revolvers at Gene Camp's residence. From the mini-storage unit
they recovered a black bag containing two wigs. Under FBI
questioning on September 25, 1993, Oatman initially identified the
3
black bag as his, but when he saw the wigs inside he said that it
probably wasn't his bag.
Oatman, Gene Camp, and Victor Camp were each charged with five
counts of robbery at the Pizza Hut (a count for robbing each of the
four employees, and a fifth count for robbing the restaurant). The
Camps both pled guilty to the charges.
Prior to his trial, Oatman filed a motion in limine asking the
District Court to prohibit any mention of the convictions of
himself and Victor and Gene Camp on federal charges arising from
the robbery of the armored car. The motion also asked the court to
prohibit testimony about a conversation in which Daniel Keening and
Gene Camp discussed Oatman's participation in the Pizza Hut
robbery, and to prohibit the robbery victims from mentioning their
recognition of Oatman through the newspaper article. The court
granted the first two requests. As to the third request, the
prosecution and defense stipulated that the robbery victims would
be allowed to testify that they identified Oatman through the
newspaper photograph but the newspaper article itself would not be
admitted into evidence and the witnesses would not mention the
article's description of the robbery of the armored car.
Oatman also moved the court to prohibit any mention of the
guilty pleas, plea bargain agreements, or convictions of Victor and
Gene Camp on the Pizza Hut robbery charges. The motion was
considered and denied on the first day of trial. In taking
judicial notice of the guilty pleas at trial, the court instructed
the jury:
4
Members of the jury, the Court may take judicial
notice of public acts, places, facts, and events. YOU
may treat such fact as conclusive. But since you are the
triers of fact in this case, you are not required to do
SO.
The Court takes judicial notice of the pleas of
guilty in Cause Nos. 10878 and 10879 by Victor Wayne Camp
and Gene Austin Camp.
A Missoula police detective testified that he was in court when the
Camps admitted to their participation in the Pizza Hut robbery.
Wollgast identified Oatman at trial as the tall robber with
the gun and wig. The other three Pizza Hut employees identified
Oatman as one of the robbers, as well. The jury also heard
testimony from witnesses for Oatman that he had been residing with
Victor Camp and had a close association with Gene Camp.
Oatman's defense was that he had been misidentified as the
tall robber. His attorney stressed the discrepancies between the
Pizza Hut employees' original description of the height of the tall
robber (six feet) and Oatman's actual height (six feet, five
inches).
During closing argument, the prosecuting attorney stated:
Now we know who robbers number two and number three were.
They were Gene Camp, a friend of the Defendant's father,
and Victor Camp, the Defendant's roommate at the time.
Gene Camp has pled guilty to those five robberies at the
Pizza Hut. Victor Camp has pled guilty to those five
robberies at the Pizza Hut.
Notice that all four victims of these five robberies
selected Gene Camp out of the six-person photo spread as
being one of the individuals in the robbery. .
YOUalso saw some wigs, two wigs, that were found during
a search of Gene Camp's storage facility, Gene Camp, a
friend of the Defendant and a close friend of the
Defendant's father.
5
The prosecuting attorney also commented in closing:
You will remember that they, each and every one of them,
identified Gene Camp from the photo 1ine;ups.
Was Marla Wollgast accurate about picking out Gene Camp
as one of the robbers that night? Of course, she was.
We know that, because he's pled guilty.
Was Mark Alexander accurate about picking out Gene Camp
as one of the robbers that night? Of course, he was. He
was one of the robbers. Pleaded guilty.
Was Sabrina Dulak accurate about picking out Gene Camp as
one of the robbers? He's pled guilty.
Was Elizabeth Olson accurate about picking out Gene Camp
as one of the robbers? Yes, she was, because he's pled
guilty.
The prosecutor went on to argue that the Pizza Hut employees were
likewise accurate in their identification of Oatman as one of the
robbers, despite the discrepancies which Oatman had pointed out
between the victims' original estimates of the height of the tall
robber and Oatman's actual height.
The jury convicted Oatman on all five counts of robbery
charged against him. Oatman appeals.
Did the District Court err in denying Oatman's motion in
limine to ban any mention at his trial of the guilty pleas made by
Victor and Gene Camp to the same charges?
Oatman contends that the convictions of Victor and Gene Camp
for the Pizza Hut robberies did not make it more probable that he
was the third robber. He maintains that evidence of the Camps'
guilty pleas was irrelevant under Rule 401, M.R.Evid. Moreover, he
asserts that the danger of unfair prejudice from informing the
6
jurors of the guilty pleas outweighed any probative value of that
information, rendering the evidence inadmissible under Rule 403,
M.R.Evid.
A district court has broad discretion to determine whether
evidence is relevant and admissible. The test of relevance is
whether an item of evidence will have any value, as determined by
logic and experience, in proving the proposition for which it is
offered. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117,
1119. The court's determination is subject to review only for
abuse of discretion. State v. Sadowski (1991), 247 Mont. 63, 69,
805 P.2d 537, 541. Atria1 court's weighing of potential prejudice
against probative value will likewise be upheld absent an abuse of
discretion. State v. Laird (1987), 225 Mont. 306, 312, 732 P.2d
417, 421.
Oatman argues that the prosecution's comments in closing
argument, set forth above, confirm that the purpose for which
information about the Camps' guilty pleas was offered was as
evidence of his guilt. We disagree. The prosecution's comments
shown above are addressed to the credibility of the Pizza Hut
employees--specifically, their credibility in identifying the
robbers. The credibility of the Pizza Hut employees' identifica-
tion of him was an issue raised by Oatman.
This Court has not previously addressed the precise issue of
whether a nontestifying codefendant's guilty plea is admissible to
corroborate an eyewitness's identification of the defendant as one
of the perpetrators of the crime. We have noted "the general
7
principle that evidence of a codefendant's guilty plea is inadmis-
sible." State v. Price (1988), 234 Mont. 144, 150, 762 P.2d 232,
236. We have recognized, however, the exception to this general
principle when evidence of a codefendant's guilty plea is offered
to aid the jury in assessing the credibility of a codefendant who
testifies at the defendant's trial. PriceI 762 P.2d at 236.
- In so
doing, we cited United States v. Halbert (9th Cir. 1981), 640 F.2d
1000, in which the Ninth Circuit Court of Appeals expounded upon
the admissibility of codefendants' guilty pleas.
As a principle of general acceptance, the guilty
plea or conviction of a codefendant may not be offered by
the government and received over objection as substantive
evidence of the guilt of those on trial. While the
evidence may not be used to establish a defendant's
guilt, it may properly be considered by the jury in
evaluating witness credibility. Admissibility of the
plea turns on the purpose for which it is offered. When
that purpose is to further the jury's difficult task of
evaluating credibility, it is relevant and admissible
without reference to the identity of the offering party.
Halbert, 640 F.2d at 1004 (citations omitted).
In the present case, the prosecutor asked the District Court
to take judicial notice of the Camps' guilty pleas as probative of
the accuracy of the Pizza Hut employees' identification of the
robbers. In granting that request, the court stated:
Well, the Court is going to allow the questions about the
guilty pleas and the plea bargain based on the arguments
of counsel here. It seems that the credibility of those
witnesses and their identifications are at issue, and
that their testimony about the process of identifying the
Camps is relevant to their credibility and will assist
the jury in making a final determinationL.1
This statement of the purpose for the court's decision to inform
the jury that it took judicial notice of the guilty pleas corre-
8
spends to the purpose for which such evidence is admissible under
the law as discussed by the Ninth Circuit Court of Appeals above.
As stated above, Oatman's defense to the charges against him
was that the Pizza Hut employees had misidentified him as one of
the robbers, especially because of the height issue. The employ-
ees 1 credibility in identifying the robbers was thus placed at
issue. The employees' correct identification of the Camps as two
of the robbers bolstered their credibility. On balance, we
conclude that the court did not abuse its discretion in deciding
that the probative value of informing the jury that the court had
taken judicial notice of the Camps' guilty pleas outweighed the
prejudicial potential of that information. We conclude that under
the circumstances here presented, evidence of the Camps' guilty
pleas was admissible.
Finally, this Court has ruled that taking judicial notice of
proceedings against a codefendant does not taint the fairness of
the defendant's trial if the court instructs the jury that it has
the prerogative to accept or reject the judicially-noticed facts as
evidence. State v. Hart (1981), 191 Mont. 375, 389, 625 P.Zd 21,
29, cert. denied, (1981) 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d
102. The jury was so instructed at Oatman's trial.
We affirm the judgment of the District Court.
.
we concur: