State v. Zlahn
2014 MT 224
Mont.2014Background
- On July 1, 2011, after two men in a maroon van allegedly propositioned Alanna Vincent, an altercation occurred; shots were fired and Ryan Grosulak was struck. Three suspects — Robert Zlahn, Samuel Bettie, and Sean Bowers — were arrested nearby. A .45 pistol was recovered in a bush.
- Bowers (who knew Zlahn) testified he saw Zlahn fire; Vincent identified Zlahn as the van driver in a photo lineup. DNA testing showed Zlahn as a major contributor to a mixed profile on the gun; GSR testing was positive on all three suspects.
- Zlahn was initially represented by a public defender at justice-court appearance but did not receive a specific OPD assignment for ~5 weeks after arraignment due to OPD policy. He moved to district court; was tried by jury July 2012.
- The jury acquitted Zlahn of attempted deliberate homicide but convicted him of assault with a weapon, criminal endangerment, and tampering with/fabricating physical evidence. He was sentenced to 30 years (five suspended).
- Trial rulings challenged on appeal included denial of requested eyewitness-identification instructions, admission of condom evidence from the van, admission of testimony about GSR impressions and lineup statistics, admission of detective-created vantage-point photos/videos, denial of mistrial after a judge’s on-the-record remark, and whether plain-error review should apply to OPD delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court should invoke plain-error review for OPD’s delay in assigning counsel | State: OPD delay did not create manifest miscarriage; defendant had counsel at initial appearances | Zlahn: 5-week delay and absence of counsel during the 10-day substitution-of-judge window violated statutory and constitutional rights | No plain-error review; no showing of manifest miscarriage; not a critical-stage violation |
| Whether jury should receive instructions on eyewitness-identification reliability (including cross-racial ID) | State: General credibility instructions suffice; not a pure eyewitness-ID case | Zlahn: Empirical risk of misidentification warranted specific instructions | Denied; Hall precedent controls and existing instructions adequately covered credibility |
| Admissibility of condom evidence found in van | State: Shows propensity for sexual propositions and supports eyewitness credibility | Zlahn: Irrelevant to charged crimes and unduly prejudicial | Admission was error (more prejudicial than probative) but harmless because evidence was cumulative of Vincent’s testimony |
| Admission of officer testimony re: GSR impressions, lineup statistics, and officer-created vantage-point media | State: Officer experience permits lay opinion on perceptions and relevance to credibility; videos documented distances/vantage points | Zlahn: Testimony relied on hearsay; lineup stats irrelevant; videos lacked proper foundation/re-enactment risk | Testimony on GSR impressions admissible as lay opinion; lineup-stat testimony relevant to credibility; photos/videos admissible with foundation and cross-examination available |
| Whether judge’s on-the-record remark warranted mistrial | State: Remark was an instruction to witness, not a credibility comment | Zlahn: Comment improperly criticized or vouched for witness, prejudicing trial | No mistrial; remark was an instruction, not a comment on credibility |
| Whether cumulative errors require reversal | Zlahn: Multiple rulings cumulatively denied due process | State: Only one harmless error (condoms) | No cumulative-error reversal; conviction affirmed |
Key Cases Cited
- State v. Hall, 244 Mont. 161 (1990) (refusal to give specific eyewitness-ID instruction upheld where general credibility instructions cover the issue)
- State v. Strauss, 317 Mont. 1 (2003) (video of scene admissible without recorded commentary; re-enactment video required foundation)
- State v. Frasure, 323 Mont. 479 (2004) (police officer lay testimony based on experience admissible to infer intent or explain conduct)
- State v. Van Kirk, 306 Mont. 215 (2001) (state must show that erroneously admitted evidence was not prejudicial; cumulative-evidence harmlessness standard)
- State v. Hansen, 296 Mont. 282 (1999) (erroneously admitted evidence that is cumulative is harmless)
- State v. Garding, 373 Mont. 16 (2013) (distinguishes structural from trial error; applies harmless-error analysis)
- Hislop v. Cady, 261 Mont. 243 (1993) (officer testimony from accident-investigation experience admissible as lay opinion)
- In re R.M.B., 213 Mont. 29 (1984) (discussion of prejudicial effect of improperly admitted evidence)