IIt THE; SUPREME COURT OF ?'HE: STATE OF M N A A
O T N
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
DONALD CONFWD,
Defendant and A p p e l l a n t .
APPEAL FROM: District Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y o f P a r k ,
The H o n o r a b l e B y r o n L. Robb, J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
L a r r y J e n t , Rozernan, Montana
For Respondent:
Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
E l i z a b e t h G r i f f i n g , A s s t . A t t y . General, Helena
--Carol A . Donaldson, Legal I n t e r n , Helena
Wm. N e l s S w a n d a l , C o u n t y A t t o r n e y ; T a r a Depuy, D e p u t y
T , i ~ r i n g s t o n , Montana
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S u b m i t t e d on B r i e f s : Oct. 25, 1989
JAN 8 - 1
m Decided: January 8 , 1990
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C ~ ~ K @UPREME COUDT
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STATE OF MONTANA
No. 89-198
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
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DONALD CONRAD, . . :
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Defendant and Appellant. - : P
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APPEAL FROM: District Court of the Sixth Judicial District,
In and for the County of Park,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Larry Jent, Rozeman, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Elizabeth Griffing, Asst. Atty. General, Helena
Wm. Nels Swandal, County Attorney; Tara Depuy, Deputy
Livingston, Montana
Submitted on Briefs: Oct. 25, 1989
Decided: January 8, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Donald Conrad, was charged with one count of arson
and one count of criminal mischief in the District Court for the
Sixth Judicial District, Park County. The District Court granted
the State's motion to dismiss the count of criminal mischief,
leaving only one count of arson for the jury. The jury found
defendant guilty as charged. He was sentenced to six years in the
Montana State Prison. Defendant appeals. We affirm.
Defendant presents the following issues:
1. Was there sufficient corroboration of the accomplice
testimony?
2. Did the District Court err in allowing questioning from
an inventory list which it had deemed an inadmissible document?
3. Did the District Court err in admitting the propane
burner into evidence?
4. Were the defendant's due process rights violated by the
questioning of Me1 Pond prior to his taped statement?
5. Was the State's reference to uncharged misconduct and
prior convictions reversible error?
Defendant financed the purchase of a trailer home through
First National Bank Bozeman, and moved it to a lot on Wineglass
Mountain in Park County, Montana. With his family, he lived in
the trailer for about five months. After the trailer had been
seriously vandalized, he testified he then moved out of the trailer
in order to protect his family. The family moved back into town
and stayed there until the house they were renting was put up for
sale. The landlord then asked them to move out. Defendant did not
move out as requested. He testified he was making improvements on
the trailer so he could not move back up there at that time and had
no where else to go. Shortly thereafter, defendant hired Me1 Pond
to assist him in remodeling his trailer.
On March 18, 1988, Pond and defendant were together at
defendantlstrailer. The testimony of Pond and defendant conflict
as to what happened next. Pond testified that defendant threw
matches through the window of the trailer. He further testified
that defendant then went back inside the trailer, came back outside
and the two drove off down the mountain. Pond testified that
defendant told him he lit the element on the propane heater and put
it face down in the mattress.
Defendant testified that he lit the propane heater in the
trailer when he first arrived in order to warm the trailer. He
stated he then left the trailer for awhile to help the Yellowstone
Basin Properties representative find the property lines. According
to defendant, when he returned to the trailer, Pond was coming out
and insisted on returning to town, so defendant ttslammedll
the
trailer door and took Pond to town. The trailer burned down.
The fire marshall, Walter Adams, testified that the fire was
started by the propane burner which was found lying face down on
a mattress. He further testified that there was nothing else in
the trailer that could have started the fire. After a jury trial,
defendant was found guilty of arson. He appeals.
I
Was there sufficient corroboration of the accomplice
testimony?
Defendant maintains that there was insufficient corroboration
of the testimony of accomplice, Pond. He urges that a conviction
based on such testimony violates 5 46-16-213, MCA.
The State asserts that corroborating evidence need not make
out a prima facie case by itself, citing State v. Kemp (1979), 182
Mont. 383, 597 P.2d 96. It further maintains that corroborating
evidence need only tend to connect the defendant with the crime
charged and that this was done in this case. It points out that
First National Bank in Bozeman held a lien on defendant's trailer;
the trailer was worth less than the lien, giving defendant a motive
to set it afire; and both a fireman and the fire marshal1 testified
that the propane burner was found face down on a bedspring after
the fire. The State urges that these facts satisfy the
requirements of 46-16-213, MCA. We agree.
Section 46-16-213, MCA, provides:
A conviction cannot be had on the testimony of one
responsible or legally accountable for the same offense,
as defined in 45-2-301, unless the testimony is
corroborated by other evidence which in itself and
without the aid of the testimony of the one responsible
or legally accountable for the same offense tends to
connect the defendant with the commission of the offense.
The corroboration is not sufficient if it merely shows
the commission of the offense or the circumstances
thereof.
Corroborating testimony is viewed in a light most
favorable to the State. State v. Holzapfel (Mont. 1988), 748 P.2d
Whether evidence is sufficient to corroborate the
testimony of an accomplice is a question of law. The
evidence must do more than show the crime was committed
or the circumstances of its commission. .. .
However,
it need not be sufficient, by itself, to support a prima
facie case against the defendant. The independent
evidence need not extend to every fact to which the
accomplice testifies. Further, the evidence may be
circumstantial and it may come from the defendant or his
witness.
State v. Ungaretti (Mont. 1989), 779 P.2d 923, 925, 46 St.Rep.
1710, 1713. (Citations omitted.) 99Withoutcorroboration, an
innocent man could be convicted by the testimony of one with a
strong motive for seeing that such a conviction occurred." State
v. Warren (Mont. 1981), 628 P.2d 292, 38 St.Rep. 773.
To convict defendant of arson, the State must prove that by
using fire or explosives, he knowingly or purposely damaged or
destroyed his trailer, which is property of another. See 5 46-6-
103, MCA. Because there was a lien on the trailer, it was
Itpropertyof anothert1.The evidence presented by the State in this
case was sufficient to corroborate Pond's testimony. The propane
burner was found lying face down on a mattress. It was the only
thing that could have started the fire. The trailer was insured;
defendant testified that he lit the propane burner when he arrived;
within one half hour after defendant and Pond left the trailer,
smoke was observed coming from the trailer; and few remnants of
items of value were found in the trailer after the fire.
Defendant also contends that Pond exonerated himself by
convicting defendant, thus he had a strong motive for convicting
defendant. He maintains that this factor renders Pond's testimony
suspect, prejudicing defendant.
Defendant is correct in contending that Pond's testimony is
suspect. The jury was specifically instructed on how to view such
testimony and were told they were the judges of the witness'
credibility. Instruction #2 states in part:
You are the sole judges of the credibility of all
the witnesses testifying in this case, and of the weight
to be given their testimony. In judging the effect of
evidence you must be fair and impartial and not
arbitrary. While you have discretion in judging the
effect of evidence, you must exercise that discretion in
accordance with these instructions.
Accomplice testimony is addressed in Instruction #14:
Testimony had been presentedthatthe witness Melvin
Pond may be an accomplice in this case. In this respect,
you are to be guided by the following rules of law:
1. An accomplice is one who knowingly and
voluntarily, with common intent with the principal
offender, unites in the commission of a crime. One may
become an accomplice by being present and joining in the
criminal act, by aiding and abetting, with criminal
intent, another in its commission, or in being present
by advising and encouraging its commission, but knowledge
and voluntary action are essential in order to impute
guilt.
2. It is a question of fact for the jury to
determine from the evidence and from the law as given
you by the court whether or not in this particular case
the witness Melvin Pond was or was not an accomplice
within the meaning of the law.
3. The testimony of an accomplice ousht to be
viewed with distrust. (Emphasis added.)
4. A conviction cannot be had on the testimony of
an accomplice unless he is corroborated by other evidence
which in itself, and without the aid of the testimony of
the accomplice, tends to connect the defendant with the
commission of the offense, and the corroboration is not
sufficient if it merely shows the commission of the
offense or the circumstances thereof.
We conclude that the foregoing instructions properly set forth the
law regarding accomplice testimony. We hold there was sufficient
corroboration of the accomplice testimony.
Did the ~istrictCourt err in allowing questioning from an
inventory list which it had deemed an inadmissible document?
State's Exhibit 2 was an inventory list of defendant's
belongings allegedly in the trailer at the time of the fire.
Defendant maintains the District Court refused to admit it into
evidence. Thus, defendant contends it was prejudicial error to
allow questioning from a document not admitted into evidence, and
that such questioning violates the Best Evidence Rule, 1002,
The State correctly notes that the list was admitted in
evidence when the District Court specifically overruled defendant's
objection. Nonetheless, the State urges that the Best Evidence
Rule was not violated because the aim of the questioning was to
impeach defendant, not to identify the drafter. The State sought
to show the contradiction between defendant's detailed claim of
what was in the trailer and the physical evidence remaining after
the fire.
Since the record is clear that Exhibit 2 was admitted,
defendant's contention is without merit. We hold the District
Court did not err in allowing questioning from an inventory list,
the admission of which was originally denied and subsequently
allowed.
I11
Did the ~istrictCourt err in admitting the propane burner
into evidence?
Defendant maintains that the propane burner was not in
substantially the same condition at the trial as when the crime
was committed. The fire marshal1 testified that during his
investigation of the burned trailer, he found a propane burner
lying face down on a bedspring. He picked up the burner and found
a small piece of cloth underneath the burner that had not been
burned. He testified that the piece of cloth indicated that the
fire started on the mattress. The piece of cloth was lost
somewhere between the date of the investigation and the trial.
Defendant contends the loss of the piece of cloth constituted a
failure on the part of the State to maintain the burner in the same
state as it was at the time of the fire, constituting prejudicial
error. The State points out that the piece of cloth was a separate
piece of evidence, not part of the propane burner, or in anyway
attached. Therefore, it maintains that the burner was in
substantially the same condition.
Montana recognizes two methods of identifying physical
evidence: ready identification and chain of custody. Ready
identification is applicable when the article has a unique
characteristic that makes it readily identifiable. Chain of
custody is used when the evidence is common and non-unique or when
the witness has failed to observe its uniqueness. See State v. Fox
(1984), 212 Mont. 488, 689 P.2d 252. Because the propane burner
here is not unique, the chain of custody method is applicable. The
burden is on defendant to show that tampering had taken place
before the prosecution acquired it. State v. Walton (1986), 222
Mont. 340, 722 P.2d 1145. The piece of cloth is not part of the
burner. Thus, defendant failed to show any tampering took place
prior to the acquisition of the burner by the State.
The burden shifts to the State to prove there has been no
substantial change in the evidence after the State acquired it.
It is not necessary for the State to prove that it would be
impossible to tamper with the burner. State v. Wells (1983), 202
Mont. 337, 658 P.2d 381. A continuous chain of possession must be
established after the acquisition by the State, not before. See
Walton, 722 P.2d at 1147. The State established the chain of
custody. Fireman Yager testified that when he entered the trailer
after the fire, he saw the propane burner lying face down on the
bedspring. He further testified that the burner remained there
until County Fire Marshall Adams investigated the fire and picked
up the burner. Adams testified he picked up the burner and then
locked it in a cupboard at the Fire Station until the Deputy
Sheriff picked it up. At trial, Adams testified the burner was in
the same condition as it was the day of the fire. We hold that the
State made a prima facie showing that there had been no substantial
change in the burner after it was acquired by the prosecution, and
that defendant failed to subsequently meet his burden of proving
tampering. Thus, we hold that the District Court did not err in
admitting the propane burner into evidence.
IV
Were the defendant's due process rights violated by the
questioning of Me1 Pond prior to his taped statement?
Defendant contends that the Deputy Sheriff told Pond their
version of what happened and then asked him his story. Defendant
maintains that Pond then told the Deputy Sheriff that defendant
admitted setting the fire in the very manner described to Pond by
the Deputy Sheriff. Defendant urges that this "suggestive
questioning1' by the Deputy Sheriff deprived defendant of due
process of the law.
The record reveals that before he was questioned, Pond was
told by the Deputy Sheriff that the burner was found on the bed.
He then gave his taped statement. Pond personally testified and
was cross examined. It is up to the trier of fact to decide who
and what to believe after consideration of all the facts and
circumstances collectively. See State v. Buckingham, No. 89-315,
slip op. (Mont. 1989). We hold that defendant's due process rights
were not violated by the questioning of Me1 Pond prior to his taped
statement.
v
Was the State's reference to uncharged misconduct and prior
convictions reversible error?
During the cross-examination of Pond, counsel questioned him
regarding other charged or uncharged misconduct by defendant of
which he may be aware. Defendant maintains that such questioning
violated Rule 609 and Rule 404(b), M.R.Evid., which deal with
character evidence. However, as the State correctly notes, the
District Court properly struck the testimony and admonished the
jury to disregard it. An error in the admission of evidence may
be cured if the jury is admonished to disregard it. See State v.
Smith (1986), 220 Mont. 364, 715 P.2d 1301. In view of the
District Court Is admonishment of the jury here, we hold the State's
reference to uncharged misconduct and prior convictions did not
constitute reversible error.
Affirmed.
We concur: Y
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Justices