NO. 87-92
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1988
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
STEVEN W Y E KEEFE,
AN
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Eighth J u d i c i a l District,
I n and f o r t h e County o f Cascade,
The H o n o r a b l e Thomas M c K i t t r i c k , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J o h n K e i t h a r g u e d , G r e a t F a l l s , Montana
For Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Kathy S e e l e y a r g u e d , A s s t . A t t y . G e n e r a l , Helena
P a t r i c k L . P a u l , C o u n t y A t t o r n e y , G r e a t F a l l s , Montana
Submitted: 1 0 , 1988
Decided: J u n e 1 3 , 1988
Filed: kULUN
2 3 I988
..
F;ZL *,
Ir -
dA&d
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
Defendant Steven Wayne Keefe appeals his conviction for
three counts of deliberate homicide, 5 45-5-102(1) (a), MCA,
and one count of burglary, S 45-6-204(1), MCA. The Eighth
Judicial District Court in and for Cascade County, the Hon.
Thomas McKittrick presiding, sentenced Keefe to three terms
of life imprisonment (to be served consecutively), ten years
for burglary, four ten-year terms for the use of a weapon in
the offenses and designated him a dangerous offender not
eligible for parole. Keefe asserts only one issue on this
appeal: Was evidence of Keefe's other crimes, wrongs and
acts properly admitted under Rule 404 (b), M. R.Evid., before
the State presented evidence of the crime charged? We
affirm.
Keefe was charged on March 21, 1986, with the
deliberate homicides of Dr. David McKay, a Great Falls
opthamologist, his wife, Constance McKay, and their
40-year-old daughter, Dr. Marian McKay Qamar, a Seattle,
Washington, pediatrician, at the McKay home three miles south
of Great Falls, Montana, on October 15, 1985. The complaint
was amended on June 10, 1986 to include a charge that Keefe
had stolen Constance McKay's purse from the McKay home on the
day of the homicides. After a hearing in Youth Court, Keefe
was bound over to District Court for trial as an adult. He
pled not guilty to all charges.
Keefe argues that his right to a fair trial on these
charges was compromised when the State began its
case-in-chief with evidence of other burglaries committed by
Keefe that were not charged in this complaint. as amended. He
contends that such unrelated evidence led the jury to
overestimate the probative value of the evidence of burglary
at the McKay home and also established him in the eyes of the
jurors as an evil man deserving punishment.
There is no argument that the McKays and Dr. Qamar died
as a result of criminal acts. The controlling question is
whether the State established, prima facie, that Keefe
committed these criminal acts. Because there are no
witnesses except perhaps a 3-year-old child, no fingerprints,
and no confession other than two admissions made to fellow
residents at Pine Hills School for Boys, the State was
obligated to proceed with circumstantial evidence. Key
pieces in this puzzle of circumstances were that Keefe had a
history in Lewis and Clark County of similar and repeated
burglaries and that at a burglary less than two weeks
previous, a .44 magnum Ruger Redhawk revolver and ammunition
were stolen. The F.B.I. later linked this weapon to the
ballistics of two of the fatal shots in the McKay home. The
F.B.I. expert said he could not be positive that the other
fatal shot was fired by the gun. It was this gun that Keefe
asked a friend to pawn for him on October 16, 1985, the day
after the McKay homicides. The gun was recovered by the
Cascade County sheriff at the pawnshop on March 4, 1986.
The record demonstrates that there is more than
sufficient evidence --albeit circumstantial evidence-- to
support this verdict and judgment. Circumstantial evidence
is not necessarily inferior in quality and, in fact, often is
most convincing and satisfactory. Any evidence that is
material, relevant and competent will- be admitted in a
criminal trial. If the facts and circumstances are of such
quality and quantity as to legally justify a jury in
determining guilt beyond a reasonable doubt, the court must
accept the verdict of the jury. State v. Cor (1964), 1-44
Mont. 333, 326-27, 396 P.2d 86, 88-89, citing State v.
Espelin (1938), 106 Mont. 231, 76 P.2d 629; State v.
DeTonancour (1941), 112 Mont. 94, 112 P.2d 1065.
We must then examine the record to determine what are
the known facts regarding the McKay and Qamar homicides and
the circumstances concerning Keefe, which when tied together,
lead to the conclusion that Keefe was at the McKay home on
the afternoon of the homicides and, in fact, committed the
homicides.
Joseph McXay, the son of David and Constance McKay,
arrived at his parents' home for a family dinner at about
5:15 p.m. October 15, 1985. His sister, Marian Qamar, and
her 3-year-old daughter, Monya, had flown in for a visit
earlier that day. Another sister, Octavia McKay Joyner, had
greeted the Qamars and had left them at the McKay home at
about 2:30 p.m. Joseph McKay entered through an unlocked
ground-level door, which opens into the family room. He
noticed that a pot of potatoes was burning on the stove in
the kitchenette at the rear of the room. He testified that
he removed the pot from the stove's burner, and then turned
to a hallway, which led to the laundry room on the left, to
the garage and a root cellar at the end, and to a staircase
to the main floor on the right.
As he entered this hallway, Joseph McKay testified that
he found his mother lying on the floor in a pool of blood and
realized that she was dead. When he stood up to alert the
rest of the family he saw Marian Qamar also lying in the hall
and apparently dead. He returned to the family room to call
authorities just as his sister, Octavia, and her husband, Don
Joyner, drove up to the house. He urged them to keep their
children outside and allowed Don Joyner, who is a practicinq
physician, into the house. Dr. Joyner checked for a pulse on
Marian Qamar. He could find none and determined that both
women were dead. Sheriff's dispatchers who received Joseph
McKay's call told him to exit the house and dispatched
deputies immediately. Joseph McKay and Dr. Joyner left the
house without climbing the stairs to the main floor.
Sheriff's deputies arrived within minutes and were told
of the two bodies on the lower floor and that Dr. McKay and
Monya Qamar were unaccounted for. The deputies entered the
house through the ground-level door Joseph McKay had used,
stepped past the bodies of the two women and came to the base
of the stairs leading to the upper floor. Here they noticed
six empty shell casings lying on the rug. They stepped over
these casings and climbed six steps to a landing that faces
the main door to the house and another six steps from this
landing to the main floor. As the deputies proceeded through
the dining area they noticed Dr. McKay lying dead in the
adjacent kitchen. The deputies then checked the bedroom and
found Monya Qamar sleeping in one of the beds. One of the
deputies picked the girl up and carried her down one flight
of stairs to the main door and attempted to open the main
door but had to move a heavy rug that had been pushed up
against the bottom of the door.
Deputy Jim Bruckner, one of the first sheriff's
deputies on the scene, b a qualified at trial as a police
rs
expert on crime reconstruction. He testified that the
investigation indicates that Dr. McKay, who was shot once in
the back of the head from the left, was the first victim
shot. There were wine glasses laid out on a counter in front
of the body and a wine glass lay broken in his hand. This, he
said, shows Dr. McKay was unaware of any danger when he was
shot. Investigators theorize that Dr. Qamar came to
investigate the noise in the kitchen, saw the killer, turned,
and was shot at five times as she fled down the two flights
of stairs. She may have tried to open the main door, hut was
prevented from doing so because the rug stopped the door. As
she got to the hallway at the gound-level she was struck by a
bullet in the back and also by one that tore through her
right ankle, and fell either dead or dying in the hallway.
Three bullets were located in the walls adjacent to the
staircase. The gunman emptied the chamber of the weapon used
to kill the victims at the base of the stairs and reloaded.
Constance McKay then entered the home from the concrete root
cellar adjacent to the garage to find her daughter lying on
the hall floor. As she knelt to attend to her daughter, the
gunman stepped out and fired a shot into the left side of
Mrs. McKay who reeled and fell twenty feet away. Another
shot was fired at Constance McKay but missed her and lodged
in a baseboard heater. In total, eight .44 magnum rounds
were fired in the McKay house.
Upon completion of autopsies, the Cascade County deputy
coroner set the time of death as approximately 4:30 p.m.
While preliminary investigations revealed no other crime had
occurred in the house, deputies later found a pile of coins
on a dirt road near the house and family members subsequently
determined the purse belonging to Constance McKay was missing
from the McKay home. The purse never has been found.
Keefe was seventeen years old at the time of the
homicides. At the time, Lewis and Clark County law officers
suspected his involvement in four recent burglaries, at one
of which a .44 magnum Ruger Redhawk revolver was stolen.
Keefe travelled to Great Falls on October 10, ostensibly to
seek employment at a new Buttrey's supermarket; he stayed the
weekend with several acquaintances and showed the . 4 4
revolver to his roommates and several of their friends.
The day after the McKay homicides, Keefe requested that
a roommate who was of legal age, Michael Hayashi, assist him
in pawning a portable radio/stereo stolen from one of the
recent Helena burglaries and later the .44 magnum Ruger
Redhawk. Keefe had Hayashi pawn t h e . 4 4 magnum Ruger Redhawk
revolver, the weapon used to kill the victims, for $75
because he s a i d h e needed t h e money f o r a t r i p t o Helena,
even though a second roomate, Toby S c o t t Yadon, a day o r two
before t h e victims were k i l l e d , o f f e r e d him $ 2 5 0 for that
same .44 magnum Ruger Redhawk r e v o l v e r . Keefe had r e f u s e d
t h i s o f f e r b e c a u s e h e had s a i d h e wanted more money f o r t h e
revolver. The i t e m s , thus, were p l a c e d i n hock on October
16, 1985 a t a G r e a t F a l l s pawnshop. L a t e r t h a t same d a y ,
Keefe was d e t a i n e d by t h e G r e a t F a l l s p o l i c e on a Lewis and
C l a r k County c o u r t o r d e r and h e l d f o r Helena a u t h o r i t i e s who
t r a n s f e r r e d him back t o P i n e H i l l s School f o r Boys b e c a u s e o f
h i s recent burglaries.
I t was d u r i n g t h i s confinement a t P i n e H i l l s t h a t Keefe
t o l d of t h e McKay homicides t o o t h e r r e s i d e n t s . One r e s i d e n t
t e s t i f i e d t h a t h e and Keefe had been d i s c u s s i n g b u r g l a r i e s
when Keefe a d m i t t e d t h a t h e a l s o had k i l l e d p e o p l e . This
witness t e s t i f i e d t h a t Keefe s a i d h e had l e f t a p a r t y and
gone t o a l a d y ' s house and t h a t when t h e l a d y had come o u t of
t h e k i t c h e n he s h o t h e r and t h a t when two p e o p l e came down
stairs to investigate he shot them also. The witness
t e s t i f i e d t h a t Keefe s a i d t h e l a d y was named Constance; t h e
witness also testified he had not heard of the McKay
homicides b e f o r e h i s d i s c u s s i o n w i t h Keefe.
A second r e s i d e n t t e s t i f i e d t h a t i n mid-November, 1985,
h e and Keefe were a l o n e i n a music room when Keefe r e l a t e d
t h a t h e had s h o t and k i l l e d t h r e e p e o p l e w h i l e b u r g l a r i z i n g a
home n e a r G r e a t F a l l s . The w i t n e s s t e s t i f i e d t h a t Keefe s a i d
he had broken i n t h r o u g h s l i d i n g g l a s s d o o r s and k i l l e d D r .
McKay when h e came t o i n v e s t i g a t e and t h e n s h o t t h e two women
when t h e y came down t o i n v e s t i g a t e . This witness t e s t i f i e d
t h a t he d i d n o t r e v e a l t h i s c o n v e r s a t i o n u n t i l a f t e r K e e f e ' s
arrest.
When trial commenced in Cascade County District Court
on October 16, 1986, the State began its case-in-chief by
calling twenty-six witnesses who testified as to five
burglaries or attempted burglaries attributed to Keefe.
Defense objected to this practice claiming that it was
inherently prejudicial since it presumed that these crimes
were sufficiently similar to the McKay crime to be introduced
under Rule 404(b), M.R.Evid. To cure any potential defect
the State filed a sealed affidavit with the court one week
before trial setting out what this evidence would prove. The
actual testimony of these witnesses demonstrated that:
*On July 22, 1985, between the hours of midnight and 8
a.m., somebody entered the Helena valley home of Arlene Wall
while she slept and removed her purse and camera. No harm
was done to anyone. Mrs. Wall's keys and credit cards were
surrendered to the Lewis and Clark County authorities by
Keefe's mother, Mrs. Vera Parmer.
*On August 3, 1985, Patrick Wall, the son and neighbor
of Arlene Wall, returned to his home at 2 a.m. to find an
unknown pickup truck near his home and his home's front door
broken open. He found that a camera and .22 caliber pistol
had been stolen. No harm was done to anyone. The pickup was
later found to be registered to Keefe's mother and the .22
caliber pistol o7as later found in Keefe's possession.
*On October 2, 1985, between the hours of 6:45 p.m. and
10 p.m., the basement window to Ron Garvin's Helena-area home
was broken and a .44 magnum Ruger Redhawk revolver, four
boxes of ammunition, and a portable radio/stereo were stolen.
Keefe's fingerprints were found on the glass of the broken
window. No harm was done to anyone although a neighbor
testified he heard gunshots in a field nearby at about this
time. The F.B.I. specialist testified that this gun, which
Keefe admitted he showed-off in Great Falls, matched the
ballistics of two of the fatal shots, and also could have
fired the third.
*On October 10, 1985, a daylight burglary occurred at
the residence of Ray Bell, Mrs. Parmer's employer. Nobody
was injured in this crime since the house was unoccupied but
a portable radio/stereo, a camera, and a .38 caliber pistol
were stolen. Mrs. Parmer testified that she saw the camera
in Keefe's belongings as he packed for his trip to Great
Falls and she returned it to Bell. The radio/stereo was
pawned for Keefe by his friend Michael Hayashi, the same day
as Garvin's .44 magnum Ruger Redhawk was pawned.
*At about 9:30 p.m. on October 12, 1985, Dr. Paul
Wilhelm heard somebody ring the doorbell at his home north of
Great Falls. He was suspicious because he was expecting no
company; he checked from windows but could see nobody at the
door. Dr. Wilhelm then carefully shined a light on a vacant
hill and fired two shots. He heard a person run away. Dr.
Wilhelm's home was not entered and nobody was harmed. The
next day he found footprints near his home which were later
photographed. F.B.I. specialists later matched these
photographed footprints to a pair of Keefe's shoes.
The State called twenty additional witnesses to testify
about investigation of these other crimes before it
introduced any evidence of the McKay crime. The District
Court allowed such evidence to be admitted over strong and
repeated objections from defense counsel. It ruled less than
a week before trial that the State could mention the other
crimes in its opening statement and use the evidence before
any evidence from the McKay homicides was in. The court
admonished the jury on three occasions during the
presentation of this evidence and at the conclusion of the
trial repeated the admonition as an instruction:
The State has just offered evidence that
the defendant at another time engaged in
other crimes, wrongs or acts. That
evidence was not admitted to prove the
character of the defendant in order to
show he acted in conformity therewith.
The only purpose of admitting that
evidence was to show proof of motive,
opportunity, plan, knowledge, identity,
absence of mistake or accident. You may
not use that evidence for any other
purpose.
The defendant is not being tried for that
other crime, wrong or act. He may not be
convicted for any other offense than that
charged in this case. For the jury to
convict the defendant of any other
offense than that charged in this case
may result in unjust double punishment of
the defendant.
Keefe testified in his own behalf. He admitted to the
Helena burglaries but claimed he never was at the McKay home.
On the afternoon of the McKay homicides-burglary, he claimed
he was applying for a job at Buttrey's, returning rented
video-cassettes, and having a key made for the residence at
which he was living. He also said that any of several
persons he had shown the stolen .44 magnum Ruger Redhawk
revolver knew where he kept it. He claimed the other Pine
Hills residents had lied when they said he had admitted to
the killings. Keefe called no other witnesses.
The jury convicted Keefe of all counts on October 22,
1986.
It is against this backdrop of factual and
circumstantial evidence that we must determine whether the
District Court properly allowed evidence of the other crimes
to be introduced under Rule 404 (b), M.R.Evid., which states:
Character evidence not admissible to
prove conduct, e x c e p t G s ; other crimes;
character - issue.
in
(b) Other crimes, wrongs, acts.
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 therewith. It may,
however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident.
This Court established the rules for use of evidence of
other crimes and wrongful acts in State v. Just (1979), 184
Mont. 262, 602 P.2d 957, citing State v. Jensen (1969), 153
Mont. 233, 455 P.2d 631. In order to introduce evidence of
other crimes or wrongful acts, the State must demonstrate
four substantive factors: (1) that the other crimes or
wrongful acts are similar; (2) that the other crimes or
wrongful acts are not remote in time; (3) that the other
crimes or wrongful acts tend to establish a common scheme,
plan or system; and (4) that the probative value of the other
crimes or wrongful acts is not substantially outweighed by
their prejudice to the defendant. Just, 602 P.2d at 961. It
is this fourth element that is most significant in this case
since Keefe argues on appeal that the State's use of other
crimes and wrongful conduct before evidence from the McKay
homicides was presented prejudiced his case. F e have
l
recognized that " [elvidence of other acts, . . . invariably
will result in prejudice to the defendant to a certain
degree." Just, 602 P.2d at 961.
Prejudice in cases such as this manifests
itself in three forms. First, proof of
other offenses subjects a defendant to
surprise by requiring [him] to defend
against a crime not charged. .. Second,
the jury might overestimate the probative
value of the evidence and assume that
merely because the defendant has
committed crimes before, he is likely to
be guilty of the crime charged. . .
Third, the evidence may indicate to the
jury that the defendant is a proper
candidate for punishment . . . (Citations
omitted. )
State v. Hansen (1980), 187 Mont. 91, 99, 608 P.2d 1083,
To cure the problem of such undue prejudice outweighing
the probative value of the evidence, the Just test
incorporates three procedural requirements. First the State
must notify the defendant prior to trial that evidence of
other crimes or wrongful acts will be introduced and indicate
the purpose for the use of such evidence. Just, 602 P.2d at
963-64. Under the Federal Rule 404(b), which is identical to
the Montana rule, as many as ten permissible purposes for the
introduction of prior crimes and acts have been identified.
These include:
(2) To prove the existence of a larger
plan, scheme, or conspiracy, of which the
crime on trial is a part. This will be
relevant as showing motive, and hence the
doing of a criminal act, the identity of
the actor, or his intention.
(6) To establish motive. The evidence
of motive may be probative of the
identity of the criminal or of malice or
specific intent. An application of this
principle permits proof of criminal acts
of the accused that constitute admissions
by conduct designed to obstruct justice
or avoid punishment for a crime, or of
the crimes that motivated the
interference with the enforcement of the
law.
(9) To prove identity. Although this is
indisputably one of the ultimate purposes
for which evidence of other criminal
conduct will be received, the need to
prove identity should not be, in itself,
a ticket to admission. Almost always,
identity is the inference that flows from
one or more of the theories just listed
McCormick on Evidence (1984), 3d Ed., pp. 558-563.
Second, the District Court must admonish the jury as to
the limited purposes of the prior crimes and acts evidence,
and third, the District Court must offer a final instruction
stating "in unequivocal terms" that the evidence of other
crimes or acts has limited purposes and that the defendant is
not on trial for those crimes or acts. Just, 602 P.2d at
964.
On June 9, 1986, more than a month before Keefe's
original trial date and more than four months before Keefe
eventually went to trial, the Cascade County Attorney's
office filed notice to Keefe and his attorneys that it would
introduce "evidence of other crimes, wrongs, or acts . . .
for the purposes of proving motive, opportunity, preparation,
plan, knowledge, and identity ... I It listed witnesses
'
from the Wilhelm, Garvin, Bell and Patrick Wall incidents,
among others. The notice was amended on October 7, 1986, one
week before jury selection began, to include evidence from
the Arlene Wall residence. It appears the defendant had
timely and proper notice with adequate time to respond.
Also present is an admonition to the jury, which the
court read three times during the introduction of evidence of
Keefe's other crimes and wrongful conduct. Although the
State called twenty-six witnesses to testify about these five
incidents, the three readings of the admonition is sufficient
under the Just test. In State v. Tecca (Mont. 1986), 714
P.2d 136, 43 St.Rep. 264, the defendant-appellant argued that
the jury must be admonished whenever any witness presents
evidence of other crimes or wrongful acts. No authority was
presented for that contention and we ruled that Just does not
require an admonition every time the evidence comes in.
Tecca, 714 P.2d at 140.
Neither is the third Just procedural aspect lacking in
the instant case. The admonition read by the District Court
and issued again as a final instruction is identical to the
cautionary instruction used in Tecca, which this Court found
to be a "proper cautionary instruction meeting the third
procedural requirement of Just." Tecca, 714 P.2d at 140.
Because all three procedural requirements of Just have been
met, we cannot say as a matter of law that the prejudicial
nature of the other crimes and wrongful acts evidence exceeds
its probative value. State v. Clausen (Mont. 19871, 740 P.2d
679, 681, 44 St.Rep. 1308, 1311. The probative value of the
evidence is determined from the remaining Just factors.
Because Keefe concedes that none of the incidents were remote
in time, the remaining two substantive factors, similarity of
acts and tendency to show common scheme, plan, or system, are
reviewed.
Keefe has argued throughout that although the burglary
of the McKay home and theft of Mrs. McKay's purse might be
like certain of his acts, a purse is such a common target of
burglaries that it proves nothing. We note, however, that
the other crimes and wrongful acts evidence shows that he had
stepped into Mrs. Wall's home and taken her purse; that he
had recently committed daytime and early evening burglaries
at the Bell and Garvin homes; that after the Garvin burglary
he had fired the .44 magnum he stole; that three days before
the McKay homicides Keefe was chased away from the Wilhelm
home by gunshots, and the day after the McKay homicides he
pawned the gun at a price lower than an outstanding offer to
buy.
The prior ... acts ... have a
similarity of inherent probability . ..
There is the hand of a plan with an
ulterior motive carrying out an intent by
scheme and design of the defendant that
was a resultant common course of conduct.
Just, 602 P.2d at 961. Evidence of other crimes or wrongs is
admissible if it goes to an issue other than the defendant's
character or disposition to commit a crime. State v. Matson
(Mont. 1987), 736 P.2d 971, 976, 44 St.Rep. 874, 880.
Keefe's actions were links in a chain of burglaries that
culminated at the McKay home. The evidence of other crimes
and acts was probative and properly admitted as a part of the
prosecution's case. They demonstrated the existence of a
common scheme or plan by Keefe to commit burglaries and
thefts and as such were properly admitted. See, Matson, 736
P.2d at 976.
Under Rule 404 (b), M.R.Evid., the prior crimes and
wrongs need not be proven beyond a reasonable doubt because
they are not offered to prove guilt of those other crimes or
acts. Just, 602 P.2d at 963. Even when the evidence of
prior crimes or wrongful acts is not sufficiently common or
related it is admissible if it tends toward the conclusion
that the defendant is guilty of the crime charged with moral
certainty and beyond a reasonable doubt. Matson, 736 P.2d at
977. The evidence of prior crimes rises to the appropriate
level and is buttressed by Keefe's admissions to the Helena
crimes. Thus, it demonstrates a common scheme or plan.
It is within the District Court's discretion to decide
whether it will permit such evidence into a criminal case.
Matson. 736 P.2d at 976. The court also has the discretion
to decide the order of proof. State v. Stever (Mont. 1987) ,
732 P.2d 853, 44 St.Rep. 283. There is a triumvirate of
responsibility when such evidence comes to be at issue. The
State cannot expect admission of such evidence routinely
without a showing of need for the evidence even if the Just
requirements are met; the defense, on the other hand, cannot
rely on the general rule of exclusion of such evidence unless
the Just requirements fail; and the District Court must make
a conscientious decision on the admissibility of the evidence
considering all four substantive Just requirements as a
whole. State v. T.W. (Mont. 1986), 715 P.2d 428, 430-31, 43
St.Rep. 368, 371-72.
A review of the record shows that counsel for Keefe and
for the State argued the question of whether Rule 404(b)
other crimes and wrongs evidence could precede the State's
case-in-chief at three separate hearings before the start of
the trial. Me note that the transcripts show that the
District Court was reluctant to accept the evidence of other
crimes and wrongful acts before the State's case-in-chief.
At the first hearing, the District Judge stated his problem
succinctly:
THE COURT: I guess the point I'm making
is I'm being asked . .
. at this time to
make a ruling [on the admissibility of
other crimes and wrongs evidence] when
I'm really in a vacuum. I don't know
what the facts are on either side. 1
don't know whether or not the probative
value outweighs the prejudicial nature of
the evidence. I don't know whether it's
relevant. I don't know whether they're
similar in nature. I don't know whether
they tend to establish a common scheme,
plan, or design.
At the end of the first hearing, the court ruled that
it was satisfied the Just requirement that notice be given
had been met. The court said it would allow the other crimes
and wrongs evidence to be admitted at trial "if the State can
prove it's relevant and that the probative value outweighs
the prejudicial value . .
. " The court noted that it could
not address the substantive factors of Just since it did not
know the State's case and would be receptive to motions to
exclude certain testimony as irrelevant.
The second and third hearings occurred in the week
prior to the trial. At the second hearing, the court stated
that its decision that the Just notice was in proper form,
did not mean the evidence contained therein was automatically
admissible. Accordingly, the court instructed the State to
alert the court before it presented evidence of other crimes
so that a hearing could be held outside of the jury's
presence to determine if that particular piece of evidence is
relevant.
The State said it was proceeding in a chronological,
sequential fashion in order to show "the pattern, the mode,
and so forth." The defense said it would be impossible to
effectively argue against pieces of this other crimes
evidence when presented in this order since the evidence of
the case-in-chief would not have been presented.
THE COURT: What you're saying is we
don't even know what the facts of this
case are, so how can we compare as to
whether there is similarity, whether
there is remoteness in time, whether or
not any of the facts anywhere remotely
are connected? And how would I be able
to determine that not knowing what the
facts are in the case-in-chief?
MR. KEITH [defense counsel]: Until the
witnesses get up and testify we don't
know anything. The witnesses have to get
up and testify first.
THE COURT: The court is going to reserve
the ruling on the admissibility on these
items, and I would suggest to the State
at this time that Mr. Keith has made a
very valid point ...
The State then prepared an affidavit for the court
outlining the evidence of prior crimes and wrongs. The
affidavit outlined the testimony the State would elicit from
the Helena burglary victims, Dr. Wilhelm, and listed other
witnesses who investigated the crimes or would verify chains
of custody. The affidavit did not describe the evidence that
would be introduced from the McKay home. It stated that the
other crimes and wrongs evidence demonstrates:
1. Intent, motive, plan, common scheme
and identity in that defendant
burglarizes isolated residences in day or
night time; he acts alon[e]; he likes
weapons; is not afraid to enter homes
that may be occupied; and that his plan
and common scheme over three months was
to burglarize and steal from these
isolated residences. Defendant is
charged with burglary, as well as three
counts of deliberate homicide.
2. The crimes are all similar in nature.
3. The nearness in time is well
demonstrated by being no longer than
three months and as soon as 3, 5, and 13
days prior to October 15, 1985.
4. The tendency to establish common
scheme i[s] that there is a continuous
pattern of behavior which is amply
demonstrated here.
5. The probative value outweighs any
prejudice to defendant in that all the
evidence points to identity. While
defendant admits stealing and pawning the
murder weapon he can still attempt to
shift blame to his two roommates.
However, the evidence is overwhelming
that the crime follows defendant's
pattern of conduct and not those of his
roommates.
In addition, the State cited State v. Powers (1982),
198 Mont. 289, 645 P.2d 1357, and State v. Riley (1982), 199
Mont. 413, 649 P.2d 1273, at a third pre-trial hearing as
authority for presenting evidence of other crimes before the
case-in-chief. The defense countered that the State was
using other crimes evidence to create its case-in-chief
rather than to support it. The court inquired of the
assistant county attorney:
THE COURT: [U]nder the normal use of
404(b) evidence as I understand it, the
Court can take the proffer of proof that
I get at a side-bench conference ... I
can look at that, and I can compare to
the case-in-chief that [has] already gone
in to the Court and gone in front of the
jury. You're asking me to make a ruling
in a vacuum. You're asking me to go on
the basic premise that ev.erything you're
offering is going to be admissible. And
that's the danger. What if the thing is
not admissible?...
MR. HAGERMAN: Well, Your Honor, in many
different cases, this type of evidence
has been argued in motions in limine
...
THE COURT: Mr. Hagerman, have you ever
been in a case when 404 (b) evidence went
in before the case-in-chief?
MR. HAGERMAN: I personally have not,
Your Honor.
THE COURT: I have not either, and I have
tried many, many cases ...
Neither Powers nor Riley states that the prosecution
may introduce evidence of other crimes or wrongful acts
before its case-in-chief. Powers stands for the proposition
that evidence of other persons' acts in disciplining children
and acts by defendant in disciplining children other than the
victim may be introduced to show a common design. The
similarity in discipline methods provided proof of the
defendants' motive, as well as intent and plan. Powers, 645
P.2d at 1363. In Riley, this Court noted that the State is
allowed "to present the entire corpus delecti of the charged
offense including matters closely related to the offense and
explanatory of it, even when such evidence discloses crimes
other than those charged." Riley, 649 P.2d at 1279. While
Riley says the jury is allowed to view the victim's death in
the context of prior events, it does not say such evidence is
automatically permissible if entered chronologically. Riley,
649 P.2d at 1280.
The District Court did not err in allowing the
prosecution to present its evidence in the chronological
sequence used in this case.
When a District Court has received an offer of proof,
as in this case, where the affidavit and arguments have been
presented by the prosecution for the chronological
presentation of evidence admissible under the Just standards,
the District Court has discretion to allow the sequence and
order of presentation.
Appellant has argued that the presentation of evidence
by the prosecution of other crimes and acts prior to the
entered presentation of evidence of the deliberate homicides
unduly focused the jury's attention on the other crimes and
acts for which the defendant was not being tried.
The transcript reveals that in the opening statements
of both the prosecution and the defense, there is left no
doubt that the jury was apprised of the crimes for which the
defendant was being tried. Timely notice was given to the
defense on more than one occasion of the chronological order
of proof to be offered by the prosecution and the defense had
timely notice and opportunity to argue in opposition to this
proposal. The District Court carefully heard and considered
the prosecution's proposal and the defense's opposition,
which included the offer of proof presented by the
prosecution.
Section 46-16-401, MCA, provides for the order of trial
in criminal cases and requires that the county attorney must
state the case and offer evidence in support of the
prosecution. Section 46-16-402, MCA, states: "When the
state of the pleading requires it - - any other - -
or in case for
good reason - - -
and in the discretion - - court, the order
of the
prescribed in 46-16-401 may be departed from." (Emphasis
added. )
Further, Rule 611 (a)(1), M. R.Evid., provides:
- - order of interrogation and
Mode and
presentation; re-examination and recall;
confrontation.
(a) Control by court. The court shall
exercise reasonable control over the mode
and order of interrogating witnesses and
presenting evidence so as to (1) make the
interrogation and presentation effective
for the ascertainment of the truth,
...
In the present case, the District Court reserved
judgment on the admissibility of the other crimes and
wrongful acts evidence until after the State had filed a
sealed affidavit demonstrating what that evidence would show.
We find no abuse of discretion by the District Court. The
State satisfied the Just requirements. Its use of evidence
of other crimes and wrongful acts was sufficient t o prove
motive, plan, opportunity, and identity. See - 396 P.2d
Cor,
at 89. The District Court exercised its discretion
painstakingly and conscientiously. We will not disturb that
judgment.
Affirmed.
We concur: