State v. Price

DA 06-0359

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 269

STATE OF MONTANA,

Plaintiff and Appellee,

v.

LEWIS PRICE III,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-Second Judicial District,
In and For the County of Carbon, Cause No. DC-2005-20
Honorable Blair Jones, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

William Hooks, Chad Wright, Hooks & Wright, Helena, Montana

For Appellee:

Hon. Mike McGrath, Montana Attorney General, Jonathan M. Krauss,
Assistant Attorney General, Helena, Montana

Robert Eddleman, Carbon County Attorney, Red Lodge, Montana

Submitted on Briefs: May 31, 2007

Decided: October 22, 2007

Filed:

__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Appellant Lewis Price III (Price) appeals from the judgment of the Twenty-

Second Judicial District Court, Carbon County, convicting him of assault with a weapon,

a felony, in violation of § 45-5-213(1)(b), MCA, and sentencing him therefor. We

affirm.

¶2 We consider the following issues on appeal:

¶3 (1) Did the State introduce evidence of other crimes and acts without notice

and in violation of Price’s due process rights?

¶4 (2) Did the District Court abuse its discretion by permitting the testimony of

Dr. James Quirk, Jr. as an expert on the potential for injury by a stun gun?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On April 12, 2005, at approximately 4:30 a.m., Price entered the home of his

girlfriend, Tabitha Olson (Olson), applied a “Black Cobra” stun gun to her temple, and

shocked her as she slept on the couch. On April 15, 2005, the county attorney filed an

information charging Price with assault with a weapon. A two-day bench trial followed.

¶6 At trial, Olson testified to the events of April 11 and 12, 2005. Olson testified that

she and Price had an altercation on the evening of April 11 over the whereabouts of two

of Olson’s handguns. Price eventually left the house but returned in the early morning

while Olson slept on the couch. Olson testified that the next thing she remembered after

falling asleep was “[w]aking up to the stun gun” on her temple which made “a real loud,

crackling noise . . . .” Olson testified that when she awoke, Price was standing over her

and she exclaimed, “[y]ou just zapped me with a stun gun.” After the attack she was

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disoriented and soiled her garments. At the time of trial seven months later, the mark left

on Olson’s temple by the stun gun was still visible. During her testimony she referenced

Price’s use of alcohol and drugs. Price’s counsel objected to the testimony regarding

Price’s drug use, and the court sustained the objection. Olson also stated that after the

initial altercation she telephoned Undersheriff Thomas Rieger because she “was scared to

call the police line” as Price “had threatened the Aryan Brotherhood . . . .” Price’s

counsel did not object to the “Aryan Brotherhood” reference but rather questioned Olson

about the Aryan Brotherhood during cross-examination.

¶7 The State called Undersheriff Thomas Rieger (Rieger) as a witness. Rieger

testified that he had known Olson for approximately ten years and that Olson had

telephoned him prior to and after the assault. Rieger testified that after the initial

altercation but prior to the assault, he went to Olson’s house but Olson had then refused

to make a statement. Rieger stated that during the first visit Olson told him that Price

“previously had assaulted her . . . .” Price’s counsel objected to the mention of a previous

assault, and the court agreed, stating, “I’ll strike any reference to previous criminal acts

and will not consider the same.” Rieger continued his testimony, informing the court that

after the stun gun assault he and the sheriff went to Olson’s home where she told them

what happened and showed them “the injury she received on the side of her temple. She

also showed [them] some injuries that she had from her previous domestic.” Price’s

counsel did not lodge an objection with respect to the comment about a “previous

domestic” and there were no further questions asked on the topic.

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¶8 During Price’s case-in-chief, Price took the witness stand and testified to his

version of the story. During the cross-examination of Price, the State, among other

things, asked Price about his feelings toward the Aryan Nation, whether he had a sniper

handbook, his sexual relationship with one of his employees, and his 1982 conviction in

the State of California for voluntary manslaughter. With the exception of the Aryan

Nation question, Price’s counsel interposed objections to the questions regarding these

topics, and the court repeatedly sustained the objections. Specifically, as to the 1982

manslaughter conviction, the court determined that while Price had indicated during his

direct examination that he was a felon and was on parole, it did not “open the door” to

detailed questioning regarding the 1982 conviction. Rather, the court allowed the State to

elicit from Price for which offense he was currently on parole. Price’s counsel did not

object to this decision and thanked the court for disallowing questioning regarding the

1982 conviction. As a result, Price testified that he was currently on parole for

“intimidation.” On re-direct, Price’s counsel asked additional questions about the felony

conviction for intimidation.

¶9 As part of its case, the State called Dr. James Quirk, Jr. (Dr. Quirk), Olson’s

treating physician, as an expert witness regarding Olson’s physiological and

psychological injuries suffered as a result of the stun gun attack. Dr. Quirk testified to

Olson’s injuries and the types of trauma that could be caused by a stun gun. Dr. Quirk

indicated that there was a potential for the development of post traumatic stress disorder

after such an attack. Price’s counsel objected to Dr. Quirk’s testimony, claiming that he

was not an expert on stun guns. The court overruled his objection, ruling that Dr. Quirk

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was qualified to “give an opinion related to trauma, that a person may experience from

electrical shock . . . .” Following the trial, the District Court found Price guilty. The

District Court subsequently found Price to be a persistent felony offender and sentenced

him to a term of forty years in the Montana State Prison. Price appeals.

STANDARD OF REVIEW

¶10 “This Court reviews a district court’s evidentiary rulings for abuse of discretion.”

State v. Ayers, 2003 MT 114, ¶ 24, 315 Mont. 395, ¶ 24, 68 P.3d 768, ¶ 24. “[T]he test

for abuse of discretion is whether the district court acted arbitrarily without conscientious

judgment or exceeded the bounds of reason.” Ayers, ¶ 26.

DISCUSSION

¶11 (1) Did the State introduce evidence of other crimes and acts without
notice and in violation of Price’s due process rights?

¶12 Price argues that the State introduced evidence of Price’s other crimes and acts in

violation of M. R. Evid. 404(b) by failing to give Price notice of “its intent to introduce

other crimes and bad acts evidence . . . .” The State contends that Price waived his right

to appeal this issue by failing to object to the complained of evidence and by actively

participating in its introduction.

¶13 A district court’s decision to admit evidence of other crimes, wrongs or acts as

defined by M. R. Evid. 404(b), is guided by the Modified Just Rule which requires four

elements be met before the evidence is allowed. These elements 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

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 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, confusion of the
issues, misleading of the jury, considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.

Ayers, ¶ 73. In addition to satisfaction of the above stated elements the party offering the

evidence must also follow certain procedural requirements. These requirements include

in pertinent part providing “written notice to the defendant that such evidence is to be

introduced. The notice . . . shall specify the evidence of other crimes, wrongs or acts to

be admitted, and the specific . . . purpose or purposes for which it is to be admitted.”

Ayers, ¶ 77 (internal quotations omitted).

¶14 However, before reaching the merits of the application of the Modified Just Rule,

the issue must be properly before the Court. This Court considers issues presented for the

first time to be untimely and will not consider them on appeal. State v. Ferguson, 2005

MT 343, ¶ 38, 330 Mont. 103, ¶ 38, 126 P.3d 463, ¶ 38. This includes new arguments

and changes in legal theory. Ferguson, ¶ 38. We refuse to fault a trial court “ ‘where that

court has not been given the opportunity to rule on the admissibility of evidence and to

correct itself.’ ” State v. Vukasin, 2003 MT 230, ¶ 29, 317 Mont. 204, ¶ 29, 75 P.3d

1284, ¶ 29 (quoting State v. Stuit, 277 Mont. 227, 230, 921 P.2d 866, 868 (1996)). The

Court recognizes an exception to this rule only where an appellant invokes the “plain

error doctrine.” Under the plain error doctrine, it is within this Court’s discretion to

review claimed errors that, while not preserved for appeal, implicate a criminal

defendant’s fundamental constitutional rights. State v. Dasen, 2007 MT 87, ¶ 38, 337

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Mont. 74, ¶ 38, 155 P.3d 1282, ¶ 38. However, “[w]e utilize plain error review sparingly,

on a case-by-case basis.” Dasen, ¶38. Absent implication of a defendant’s fundamental

constitutional rights, we will decline to review whether the district court properly

admitted evidence under M. R. Evid. 404(b), if the district court did not have an

opportunity to rule on the issue. Ferguson, ¶ 65.

¶15 Moreover, review of an alleged error is limited by statute. “This Court may

review the verdict or decision and any alleged error objected to which involves the merits

or necessarily affects the judgment.” State v. Scarborough, 2000 MT 301, ¶ 73, 302

Mont. 350, ¶ 73, 14 P.3d 1202, ¶ 73 (relying on § 46-20-104(2), MCA). The purpose of

stating an objection is two-fold. First, it allows the district court to correct itself if

warranted and second, it preserves the issue for appeal. Scarborough, ¶ 74. Therefore,

absent an objection, an alleged error is not appropriate for review. Furthermore, “where

objectionable evidence or testimony is elicited by a party’s own actions, that party waives

the right to allege error on appeal because of the party’s active participation in creating

the error.” State v. Smith, 2005 MT 18, ¶ 10, 325 Mont. 374, ¶ 10, 106 P.3d 553, ¶ 10.

¶16 Here, Price claims that the State violated the Modified Just Rule by allowing

questioning and testimony regarding Price’s other bad acts. Price claims it was error to

allow any reference to Price’s (1) alleged involvement in the Aryan Nation; (2) alleged

sexual relationship with an employee; (3) use of drugs and alcohol; (4) alleged ownership

of a Sniper handbook; (5) previous domestic abuse charges; (6) 1982 manslaughter

conviction; and (7) prior felony conviction for intimidation. We discuss the alleged

errors in turn.

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¶17 As to the testimony regarding the Aryan Nation and Price’s use of alcohol, Price’s

counsel failed to lodge any objection. Rather, Price’s counsel actively participated in the

line of questioning during both the cross-examination of Olson and during the direct

examination of Price, respectively. As such, Price has waived his right to appeal

introduction of this evidence.

¶18 Regarding the felony conviction for intimidation, Price’s counsel failed to lodge

an objection. While Price’s counsel objected to introduction of the 1982 manslaughter

conviction, Price did not object to the court’s decision to allow questioning regarding

Price’s current parole for the intimidation conviction. Accordingly, Price has not

preserved this issue for appeal. Moreover, on re-direct, Price’s counsel asked several

questions about the prior intimidation felony, thereby actively participating in the error

Price now complains of. As such, Price’s appeal is also waived for this reason.

¶19 As to the remaining allegations of error, Price’s counsel objected, and the District

Court sustained the objections. Consequently, Price cannot claim error where the District

Court disallowed introduction of the allegedly improper evidence.

¶20 Finally, Price does not argue for review under the plain error doctrine by arguing

that his fundamental constitutional rights were affected by the alleged improper evidence.

At most, Price contends that the character evidence contributed to his conviction. Price

also briefly argues that because improper evidence was introduced at trial, the judge

sentenced him, in part, because of his “propensity for violence,” despite the court’s

statement that it would “strike any reference to previous criminal acts and [would] not

consider the same.” Given our conclusion that proper objections were not made, the

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evidence was thus properly admitted during the trial, and this argument is without merit. 1

Therefore, we decline to review Price’s claims further, and do not reach the merits of the

Modified Just Rule argument. Accordingly, we conclude there was no abuse of

discretion by the District Court.

¶21 (2) Did the District Court abuse its discretion by permitting the testimony
of Dr. James Quirk, Jr. as an expert on the potential for injury by a stun gun?

¶22 Price argues that the District Court abused its discretion by allowing the testimony

of Dr. Quirk. Price contends that Dr. Quirk’s expert opinion was not reliable and did not

meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.

579, 113 S. Ct. 2786 (1993), and Kuhmo Tire, Co. v. Carmichael, 526 U.S. 137, 119

S. Ct. 1167 (1999).

¶23 Expert Testimony is governed by M. R. Evid. 702, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise.

We have repeatedly held that “the test for admissibility of expert testimony is whether the

matter is sufficiently beyond common experience that the opinion of the expert will assist

the trier of fact to understand the evidence or to determine a fact in issue.” Ayers, ¶ 36

(internal citations omitted). Only where the introduction of “novel scientific evidence” is

sought do we apply the Daubert standard. State v. Cline, 275 Mont. 46, 55, 909 P.2d

1
Price raises no separate issue regarding the propriety of the information considered by the
District Court during sentencing.
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1171, 1177 (1996). Where Daubert applies, a district court must look to several non-

exclusive factors for considering if scientific evidence may be admitted, including:

(a) whether the theory or technique can be and has been tested; (b) whether
the theory or technique has been subjected to peer review and publication;
(c) the known or potential rate of error in using a particular scientific
technique and the existence and maintenance of standards controlling the
technique’s operation; and (d) whether the theory or technique has been
generally accepted or rejected in the particular scientific field.

Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 52, 289 Mont. 1, ¶ 52, 961 P.2d 75,

¶ 52 (citing Daubert, 509 U.S. at 592-95, 113 S. Ct. at 2796-98). However, where

Daubert is inapplicable “it is better to admit relevant scientific evidence in the same

manner as other expert testimony and allow its weight to be attacked by cross-

examination and refutation.” Barmeyer v. Montana Power Co., 202 Mont. 185, 193-94,

657 P.2d 594, 598 (1983) (internal quotations omitted), overruled on other grounds,

Martel v. Montana Power Co., 231 Mont. 96, 103, 752 P.2d 140, 145 (1988).

¶24 Here, Price argues that the District Court erred by not applying and excluding Dr.

Quirk’s testimony under the Daubert standard. We disagree. Medical diagnosis is not

“novel scientific evidence” and therefore the Daubert standard does not apply.

Consequently, we review the record to determine if the court abused its discretion in

allowing Dr. Quirk’s testimony.

¶25 At trial, the State established a foundation that Dr. Quirk is a medical physician

who is trained in how to “treat electrical shock and electrical burns[,]” has conducted

“private research concerning injuries resulting from exposure to electric shock via a stun

gun[,]” and specializes in “[f]amily practice and emergency medicine.” Price’s counsel

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did not object “to the foundation for the medical diagnosis” and objected only to Dr.

Quirk as an expert “in regards to a stun gun . . . .” In response to this objection the

District Court found that Dr. Quirk was qualified to give an “opinion related to trauma,

that a person may experience from electrical shock . . . .” On cross-examination, Price’s

counsel elicited that Dr. Quirk used medical literature provided by the prosecution and

did not know the difference in power between a stun gun and a taser.

¶26 Looking to the record, it was not “beyond the bounds of reason” for the District

Court to allow Dr. Quirk to testify about the potential for serious bodily harm from a stun

gun. Ayers, ¶ 26. Given the foundation of Dr. Quirk’s medical knowledge, the court

reasonably found that Dr. Quirk was qualified to give a medical opinion that would

“assist the trier of fact to understand the evidence or to determine a fact in issue . . . .”

M. R. Evid. 702. We adhere to the settled principle of admitting relevant scientific

evidence in the same manner as other expert testimony and allowing its weight to be

attacked by cross-examination and refutation. Barmeyer, 202 Mont. at 194, 657 P.2d at

598. Here, cross-examination allowed Price ample opportunity to address his concerns

regarding Dr. Quirk’s knowledge of stun guns and the trauma they may induce.

Consequently, we find that the District Court did not abuse its discretion by allowing the

testimony of Dr. Quirk.

¶27 Affirmed.

/S/ JIM RICE

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We concur:

/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ BRIAN MORRIS

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