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.




                                                                             2
           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


                                                                               3
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


                                                                                 4
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 ---

                                                                                     5
           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


                                                                                6
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,


                                                                               7
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),


                                                                                   10
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


                                                                                    11
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.




                                                                     18