State v. Paoni

No. 04-748

IN THE SUPREME COURT OF THE STATE OF MONTANA

2006 MT 26

________________________________________

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JOSEPH PAONI,

Defendant and Appellant.

______________________________________

APPEAL FROM: District Court of the Twenty-First Judicial District,
In and for the County of Ravalli, Cause No. DC 2003-209,
The Honorable James A. Haynes, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Matthew M. Stevenson (argued) Attorney at Law, Missoula, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; John Paulson (argued), Assistant Attorney
General, Helena, Montana

George Corn, Ravalli County Attorney; T. Geoffrey Mahar, Deputy County
Attorney, Hamilton, Montana

______________________________________
Argued: April 15, 2005
Submitted: October 25, 2005
Decided: February 7, 2006
Filed:

__________________________________________
Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1 Joseph Paoni (Joseph) appeals his convictions from the District Court of the

Twenty-First Judicial District, Ravalli County, for assault with a weapon, a felony in

violation of § 45-5-213(1)(a), MCA; partner-family member assault, a misdemeanor in

violation of § 45-5-206(1)(a), MCA; criminal mischief, a misdemeanor in violation of §

45-6-101(1)(a), MCA; and two counts of criminal endangerment, felonies in violation of §

45-5-207(1), MCA. We affirm.

¶2 Joseph raises the following issues on appeal:

¶3 1. Whether sufficient other evidence supported Joseph’s conviction for assault with

a weapon even assuming Joseph preserved his Crawford issue on appeal.

¶4 2. Whether the District Court abused its discretion by denying Joseph’s motion for

a mistrial.

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Early in the morning of December 29, 2003, after an evening of drinking, Joseph

came home and argued with his pregnant girlfriend, Tracyn Elrich (Tracyn). Joseph struck

Tracyn in the face, back, and stomach, pulled her hair, and slammed her head against the

wall. Joseph’s brother, David--who along with his wife and daughter, Tiffany Paoni

(Tiffany), lived in the same house as Joseph--attempted to break up the fight between Joseph

and Tracyn. The argument between the two brothers escalated until Joseph eventually struck

David in the eye with the butt of a rifle.

¶6 Tiffany called 911 and summoned officers to the house, alerting law enforcement that

Joseph was drunk and armed with a gun. David also spoke with the 911 operator and

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informed her that Joseph had struck him in the face with the gun. He further told the

operator that he had disarmed Joseph and locked the rifle in the trunk of his car. David also

informed the operator that Joseph was now outside the house and possibly armed with a

knife.

¶7 Police officers arrived at the house and arrested Joseph. The State charged Joseph

with assault with a weapon, two counts of criminal endangerment, partner-family member

assault, and criminal mischief. The State premised the assault with a weapon charge on

Joseph striking David in the face with the butt of a rifle.

¶8 David moved with his family, including Tiffany, to Sangamon County, Illinois, before

Joseph’s trial began. The District Court for the Twenty-First Judicial District, Ravalli

County, issued subpoenas for David and Tiffany and the State mailed them to the Sangamon

County Sheriff’s Office. Nothing in the record indicates that the State or proper authorities

presented the subpoena to a Sangamon County court of record, as required by § 46-15-113,

MCA. The sheriff in Illinois attempted to serve David by leaving a copy of the subpoena at

his abode. Thus, it appears that the Illinois authorities failed to serve the Ravalli County

subpoena personally on David, as required by § 46-15-107, MCA. The State admitted that

it was unlikely David or Tiffany would show up to testify.

¶9 Joseph moved to dismiss the assault with a weapon count on Sixth Amendment

grounds before trial. He argued that the Sixth Amendment guaranteed him the right to

confront the witnesses against him, and if David failed to show up for trial he would not have

the ability to cross-examine David, examine his motives, or examine his testimony. The

District Court denied the motion. Joseph’s counsel then informed the court that he would

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object to any hearsay statements by David as the State offered them at trial. David and

Tiffany did not appear at trial.

¶10 The State opened the trial by attributing the following statement to Joseph: “I want

the baby dead. I hope the baby dies.” Joseph did not object at the time, but instead moved

for a mistrial the following day during a conference in chambers based on the State’s use of

these remarks. Joseph argued that the State’s use of Joseph’s comment denied him his right

to a fair trial. The District Court denied the motion.

¶11 Both the State and Joseph offered into evidence during trial statements made by

David. Joseph largely failed to object to the admission of David’s hearsay statements. For

instance, Deputy Rhodes, one of the officers who arrived on the scene after Tiffany had

called 911, testified that David told him that he and Joseph had engaged in a physical scuffle,

and that Joseph had caused David’s injuries by striking him in the face with the rifle. Joseph

made no objection to this testimony.

¶12 The jury found Joseph guilty on all charges. Joseph then filed a Motion for a New

Trial and/or Motion for Judgment Notwithstanding the Verdict on the assault with a weapon

charge against David and one of the criminal endangerment charges. Joseph argued that the

District Court improperly had admitted all of David’s hearsay statements in violation of

Joseph’s Sixth Amendment right of confrontation as expounded in Crawford v. Washington

(2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The District Court denied the motion

and entered a judgment of conviction on all counts. The court sentenced Joseph to 20 years

in the Montana State Prison with 5 years suspended. This appeal followed.

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 STANDARD OF REVIEW

¶13 We review rulings on the admissibility of evidence under an abuse of discretion

standard. State v. Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, ¶ 12, 119 P.3d 1194, ¶ 12.

We leave determination of the relevancy and the admissibility of evidence to the sound

discretion of the trial judge, and we will not overturn it absent a showing of abuse of

discretion. Damon, ¶ 12. The standard for denial of a motion for a mistrial is whether the

district court abused its discretion. State v. Steele, 2004 MT 275, ¶ 15, 323 Mont. 204, ¶ 15,

99 P.3d 210, ¶ 15.

DISCUSSION

¶14 1. Whether sufficient other evidence supported Joseph’s conviction for assault

with a weapon even assuming Joseph preserved his Crawford issue on appeal.

¶15 Joseph argues on appeal that the District Court violated his Sixth Amendment right

to confront the witnesses against him, as expounded in Crawford, when it admitted certain

of David’s hearsay statements. The State counters that Joseph failed to raise a proper

objection at trial and thus waived the right to raise the confrontation clause issue on appeal.

Alternatively, the State argues that the District Court correctly admitted David’s statements.

¶16 A defendant waives an objection and may not seek appellate review when a defendant

fails to make a contemporaneous objection to an alleged error in the trial court. Section

46-20-104(2), MCA; State v. Olsen, 2004 MT 158, ¶ 10, 322 Mont. 1, ¶ 10, 92 P.3d 1204,

¶ 10. A defendant does not waive an issue by failing to object at trial, however, when he has

filed a motion sufficiently specific to preserve the issue for appeal. State v. Vukasin, 2003

MT 230, ¶ 29, 317 Mont. 204, ¶ 29, 75 P.3d 1284, ¶ 29.

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¶17 Joseph’s counsel filed four separate motions in limine regarding various evidentiary

issues. Joseph also argued in a separate pretrial motion to dismiss that the court would

abrogate Joseph’s Sixth Amendment right to confront the witnesses against him if David

failed to appear for trial and the court did not dismiss the assault with a weapon charge. The

District Court denied the motion at a pretrial conference on the morning of the first day of

trial. Shortly thereafter Joseph’s counsel informed the court that he would be objecting to

any of David’s hearsay statements as the State attempted to offer them.

¶18 Throughout the trial, however, Joseph repeatedly failed to object to David’s hearsay

statements. For instance, the State’s first witness, Deputy Rhodes, testified when asked if

David told him what caused his black eye that David stated “that the actual weapon striking

his face is what caused that, that injury.” It was not until Deputy Cashell, another officer

present the night of the incident and the second witness to testify, attempted to relay a

conversation with David that Joseph objected. The District Court sustained the objection.

¶19 Moreover, Joseph failed to object, on hearsay grounds, to the admission of the

recorded 911 conversation between Tiffany, David, and the 911 operator. Joseph initially

objected to the tape’s admission on the grounds that the tape contained Tiffany’s

impermissible statements regarding Joseph’s prior bad acts, and that the State had failed to

provide him with Just notice that it would be seeking to use evidence of Joseph’s prior bad

acts. Judge Haynes opined that the tape was “also riddled with hearsay” and asked Joseph

“what’s the basis of your objection?” Joseph reiterated that it was the “Just notice. This is

prior bad acts that would be in front of the jury at this point that officers have actually come

out here before.” Joseph then requested redaction of the tape so as not to invoke any

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violation of the Just notice requirement. The court agreed.

¶20 The court then played the redacted tape for the jury, without any objection to David’s

hearsay statements. In particular, David told the 911 operator that “when [Joseph] started

beatin’ [Tracyn] I went up there and tried to break it up and I got hit with the gun and I took

the guns away and locked em in my trunk . . . .” Tiffany also made statements on the 911

tape that support Joseph’s conviction for assault with a weapon. Tiffany told the 911

operator that “my dad just come down here and [Joseph] hit him in the eye with the butt of

the gun, it’s all purple . . . .” The 911 operator then asked “[h]e hit your dad in the eye with

a gun?” and Tiffany responded “[y]ep, with the butt of it.” Joseph did not object to the

admission of these statements.

¶21 Joseph maintains on appeal that he filed a motion in limine to keep David’s hearsay

statements out of evidence. None of Joseph’s four motions in limine requested, however,

the exclusion of David’s statements. The only pretrial motion that Joseph made regarding

David’s statements was the motion to dismiss the assault with a weapon charge. Joseph

based this motion on the grounds that if David failed to testify and the court did not dismiss

the charge, the court would violate Joseph’s Sixth Amendment right to confront the witnesses

against him.

¶22 A motion to dismiss, like a motion in limine, can be “sufficiently specific to preserve

[an] issue for appeal.” Vukasin, ¶ 29. We need not address whether Joseph’s pretrial

motion to dismiss sufficiently preserved his Crawford issue for appeal, however, as the State

presented the jury with sufficient evidence independent of David’s statements to support

Joseph’s conviction for assault with a weapon.

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¶23 First, the State presented the redacted 911 tape without objection from Joseph.

Tiffany did not testify at trial, but the 911 tape included her statements. Tiffany was present

at the scene of the incident and observed first hand her father’s injury. She told the 911

operator that Joseph struck her father in the eye with a rifle, causing it to turn purple.

¶24 Officer Rhodes’s independent observations support Tiffany’s statements. Officer

Rhodes testified without objection that he observed a “clear, reddening cut with exposed

blood on the upper left portion of [David’s] eyebrow area.” The State also presented without

objection from Joseph a photograph of David on the night of the incident depicting his

injured eye.

¶25 Joseph’s motion to dismiss did not preserve for appeal the admissibility of Tiffany’s

statements, Officer Rhodes’s observations, and the photograph of David’s injury. Joseph

argued in his pretrial motion with respect to the assault with a weapon charge that if David

failed to testify at trial, Joseph would “not have the ability to cross-examine him, examine

his motives, examine his testimony whatsoever.” The motion to dismiss did not discuss any

potential evidence supporting the assault with a weapon charge other than David’s hearsay

statements. And the motion to dismiss was not sufficiently specific to alert the trial court

that Joseph would be objecting to Tiffany’s statements to the 911 dispatcher, Officer

Rhodes’s observations of David’s injury, and the photograph of David’s injury. Thus, under

Vukasin, ¶ 29, Joseph’s motion to dismiss did not preserve an objection to this evidence on

appeal.

¶26 The State presented the jury with other evidence that proved the same fact as David’s

hearsay statements--that Joseph struck David in the face with a rifle. In Van Kirk we adopted

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the “cumulative evidence” test for harmless error analysis. State v. Van Kirk, 2001 MT 184,

¶ 43, 306 Mont. 215, ¶ 43, 32 P.3d 735, ¶ 43. We held that in order for a trial error to be

harmless under this test, “the State must demonstrate that the fact-finder was presented with

admissible evidence that proved the same facts as the tainted evidence, and qualitatively, by

comparison, the tainted evidence would not have contributed to the conviction.” Van Kirk,

¶ 47. We conclude that the admission of David’s hearsay statements through the testimony

of Officer Rhodes was harmless in light of the other evidence that the State presented on the

assault with a weapon charge through the 911 tape, Officer Rhodes’s observations, and the

photograph of David’s injury. Van Kirk, ¶ 47.

¶27 The admission of the redacted 911 tape without objection from Joseph also renders

much of Officer Rhodes’s testimony cumulative and, thus, harmless error. We faced a

similar situation concerning a defendant’s failure to object to the admission of a 911 tape in

our recent decision in State v. Mizenko, 2006 MT 11, 330 Mont. 299, ___ P.3d ___. The

State presented three witnesses who testified regarding hearsay statements of the victim,

Debra Mizenko (Debra), who did not testify at trial. Mizenko, ¶ 25. Debra’s neighbor,

Dawn Grove (Grove), testified that an out of breath Debra appeared at Dawn’s house and

asked her to call 911. Mizenko, ¶ 3. Grove further testified that Debra told her that Mizenko

had been drinking and was trying to hurt her. Mizenko, ¶ 4. The 911 operator, Tami King

(King), testified that Debra told her that Mizenko hit her, pushed her down, and pulled her

hair out. Mizenko, ¶ 5. Finally, Officer Scott Buennemeyer (Buennemeyer) testified that

when he arrived at the scene he saw a lock of hair on the kitchen floor and another one on

the living room floor. Mizenko, ¶ 6. He further testified that Debra told him that the hair

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was hers, and that Mizenko had pulled it from her head during the altercation. Mizenko, ¶

6.

¶28 Mizenko objected to the hearsay statements from Grove, King, and Buennemeyer,

arguing that the court’s decision to admit them denied him his Sixth Amendment right to

confrontation. Mizenko, ¶ 7. He failed to object, however, to the admission of the 911 tape.

Mizenko, ¶¶ 5, 26. The State played the tape for the jury, wherein Debra told King that

Mizenko hit her, pushed her down, and pulled out her hair. Mizenko, ¶ 26. We determined

that, in light of Mizenko’s failure to object to the admission of the 911 tape, “King’s and

Buennemeyer’s testimony concerning the hair pulling, even if objectionable, was cumulative

and, thus, harmless error.” Mizenko, ¶ 26, citing Van Kirk, ¶ 43. We likewise concluded that

King’s statements that Mizenko had pushed Debra down and hit her constituted harmless

error, at most. Mizenko, ¶ 26.

¶29 Here the 911 tape revealed damaging statements from both David and Tiffany

regarding the assault with a weapon charge. Both stated on the tape that Joseph struck David

with a gun. Joseph failed to object to the admission of the tape on hearsay grounds. Joseph

initially objected to the tape on Just notice grounds and requested that the court redact the

tape to cure any Just notice violations. Judge Haynes alerted Joseph that the tape was

“riddled with hearsay,” yet Joseph made no objection on those grounds, thereby allowing

damaging statements into evidence regarding the assault with a weapon charge. We

repeatedly have held that a party’s assertion of error “must stand or fall on the ground” raised

in the trial court. State v. Davis, 2000 MT 199, ¶ 39, 300 Mont. 458, ¶ 39, 5 P.3d 547, ¶ 39.

Thus, as in Mizenko, the testimony of Deputy Rhodes regarding statements made by David,

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even if objectionable, was cumulative and, thus, harmless error. Mizenko, ¶ 26.

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¶30 2. Whether the District Court abused its discretion by denying Joseph’s motion

for a mistrial.

¶31 Joseph argues that the District Court abused its discretion by denying his motion for

a mistrial based on impermissible remarks made by the State in its opening statement. He

argues that the statement, attributed to Joseph, “I want the baby dead. I hope the baby dies,”

repeated during the State’s opening statement prejudiced his right to a fair trial because no

foundation had been laid for the statement. The State counters that Joseph waived his right

to appeal because of his failure to make a contemporaneous objection to the State’s opening

comment. Alternatively, the State asserts that the District Court did not abuse its discretion

in denying Joseph’s motion for a mistrial.

¶32 Joseph filed a motion in limine to exclude any reference to Joseph’s statement to

Tracyn that he wanted the baby dead. The court responded that if the State could

demonstrate that the statement was made in the immediate course of the charged struggle it

would allow the statement. If the statement was made on a previous evening or pertained

to an unrelated desire to terminate the pregnancy, however, the court agreed with Joseph that

the statement should be excluded.

¶33 The State began its opening statement with “I want the baby dead. I hope the baby

dies. These statements are going to be part of the State’s case . . . .” Joseph did not object

and did not move for a mistrial until a conference in chambers the following morning.

Joseph argued that the statement’s admissibility was pending and the State effectively took

the power away from the court to rule on the issue. The court denied Joseph’s motion for

mistrial. The court determined that the State had not violated a court ruling by using “I want

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the baby dead. I hope they baby dies,” in its opening statement. The court reasoned that if

the State failed to show that Joseph made these comments, Joseph could point out the State’s

failure to present promised evidence during his closing statement. The court also

admonished Joseph for failing to make a contemporaneous objection.

¶34 Joseph argues on appeal that his failure to timely object to the State’s remarks is

“well explained.” He asserts that he had no time to object, given how quickly the State made

the comment. He further asserts that his belief that the motion to exclude the statement was

pending justifies his failure to contemporaneously object.

¶35 A defendant must make a timely objection to properly preserve an issue for appeal.

State v. Gardner, 2003 MT 338, ¶ 49, 318 Mont. 436, ¶ 49, 80 P.3d 1262, ¶ 49. The

defendant in Gardner failed to object to allegedly impermissible evidence until two days

after the State presented the evidence to the jury. Gardner, ¶¶ 52, 53. We held that the

defendant did not make a timely objection and therefore declined to consider his issue on

appeal. Gardner, ¶ 59. In so holding, we distinguished State v. Whitlow (1997), 285 Mont.

430, 949 P.2d 239, wherein we chose to consider the merits of the defendant’s claimed error

even though he waited until his cross-examination to object to alleged impermissible

testimony admitted during the State’s case-in-chief. Whitlow, 285 Mont. at 442, 949 P.2d

at 247. We noted in Gardner that “whatever flexibility in the timing of an evidentiary

objection may have been bestowed by Whitlow cannot be stretched into a delay of two days

after the evidence has been presented to the jury.” Gardner, ¶ 58.

¶36 Gardner applies to Joseph’s case. The flexibility in the timing of an objection

conferred in Whitlow does not extend to the following day. We agree with the District Court

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that Joseph should have made a timely objection to the State’s comment. Moreover, we find

unpersuasive Joseph’s assertion that the State’s comment was made too quickly for him to

object. Joseph’s failure to make a timely objection to the State’s alleged impermissible

comment waives the objection and precludes appellate review. Gardner, ¶ 59.

¶37 Moreover, even if Joseph had made a timely objection to the State’s comment, the

State later established the proper foundation for the statement. Deputy Cashell testified that

Tracyn told him immediately after the incident that Joseph said he “wanted the baby to die”

just before punching Tracyn in the stomach. Tracyn admitted that she told officers on the

night of the incident that Joseph said he wanted the baby dead several times that day. Tracyn

recanted her story at trial and, though she admitted to having told officers that Joseph said

he wanted the baby dead, she denied that Joseph actually had made those remarks. The State

used Tracyn’s admission to introduce her statement to officers on the night of the incident.

The District Court admitted the statement without objection. The court previously had

redacted portions of Tracyn’s statement to cure a potential Just notice violation. Tracyn

repeatedly told officers that Joseph said he wanted the baby dead and hoped the baby died

several times on the day of the incident in the redacted version of her statement.

¶38 We previously have held that facts asserted by a party in an opening statement that

they do not prove during trial may constitute grounds for a mistrial if there is a reasonable

possibility that the unproved facts--on which evidence was either not offered or not

admitted--contributed to the conviction. See State v. Scheffelman (1991), 250 Mont. 334,

339, 820 P.2d 1293, 1296. Joseph’s statements, as recounted by the State in its opening

statement, do not fall, however, within the ambit of Scheffelman. Here, the District Court

14
admitted without objection evidence establishing those statements through Deputy Cashell’s

testimony and Tracyn’s statement to police, with the proper Just notice redactions. Joseph

conceded during a pretrial conference that Tracyn’s redacted statement constituted

“substantive evidence,” and, more importantly, the State established through the testimony

of Tracyn and Deputy Cashell that Joseph had uttered “I want the baby dead. I hope the

baby dies,” during the immediate course of the charged struggle. Thus, since the State later

proved the statements on which Joseph based his motion for mistrial, Scheffelman has no

application here. The District Court therefore did not abuse its discretion in denying

Joseph’s motion for a mistrial.

¶39 Affirmed.

_______________________________________
/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ JIM RICE

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Justice James C. Nelson concurs.

¶40 I concur in the result of this case only because Joseph did not object to the admission

of Tiffany’s statements on the redacted 911 tape and because of the corroboration of David’s

injuries through Deputy Rhodes’ testimony. That evidence, standing alone, was sufficient

to sustain the jury’s conviction.

¶41 I do not agree with the superfluous discussion in the rest of the Court’s opinion as to

Issue 1. In my view, Joseph more than adequately preserved his Sixth Amendment Crawford

claim by virtue of his pre-trial Motion to Dismiss Count I and, having done so, had no

obligation to make contemporaneous objections throughout the trial to the admission of

David’s hearsay statements.

¶42 Finally, and for the same reasons that I dissented in State v. Mizenko, 2006 MT 11,

___ Mont. ___, ___ P.3d___, I do not agree and will continue to disagree with the whole

concept of “victimless” prosecutions.1 See Mizenko, ¶¶ 44-192 (Nelson, J., dissenting).

Most of the problems that plagued Mizenko plague this case as well, including the State’s

failure to secure the attendance of the victim for trial, the denial of the defendant’s right of

confrontation through the use of hearsay, and the District Court’s questionable rationale for

admitting the victim’s out-of-court statements: “[O]n a homicide case, the victim is dead and

the defendant doesn’t get to confront the dead person. . . . So I don’t view the confrontation

right as running directly to having the right to have a victim present in court. It’s just if they

are present then the defendant has a right to see them face to face and ask them questions.”

1
The prosecution was "victimless" with respect to Count I, in which Joseph was
charged with assaulting David with a weapon. Because Tracyn appeared and testified at
trial, prosecution of the charges related to her injuries was not "victimless."

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 /S/ JAMES C. NELSON

Justice Patricia O. Cotter joins in the concurrence of Justice James C. Nelson.

/S/ PATRICIA COTTER

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