*1
MONTANA,
STATE OF
Respondent,
Plaintiff
Appellant.
HALL,
STACY
GENE
Defendant
87-283.
No.
July
Submitted on Briefs
Sept. 15,
Decided
J. for defendant and Gen., Gen., Claassen, Atty. Greely, Atty. He- Mike Barbara Asst. McLean, Missoula, lena, III, Atty., Deschamps, Ed Robert L. Co. Deputy Atty., respondent. plaintiff Co. for Opinion of the
MR. TURNAGE delivered the CHIEF JUSTICE Court. theft, felony in vio-
Stacy appeals jury conviction of Gene Hall 45-6-301, charged informa- lation of MCA. was Section equipment tried tion with three counts of theft radio County, District, Missoula Judicial District Court of the Fourth early October trial of Judge Douglas presiding. From the G. Harkin A called. mistrial was return a verdict and a did not trial, September 1986. scheduled for trial was was sentenced guilty counts of theft and Hall was found of all three ten-year consecutively, years to three terms to run with seven sus- pended on each term.
We affirm. appeal
The issues on are: 1. Whether the District Court admitted evidence of other acts. appellant’s Whether District Court in a did not second trial at doctrine of Whether the cumulative error is appeal.
case on January On police ap- Missoula searched residence of pellant pursuant equipment to a search warrant found reported which had been as stolen three Missoula radio sta- turntables, equipment tions. The a disco unit two consisted of with cabinet, rack, portable cartridge a control board set a car- tridge eraser/splicer-finder, cartridge player, recorder micro- phones, adaptor, cartridges. pieces an and numerous two-track station, KUFM, had been taken from KGVO radio and FGRZ radio. The search warrant was was issued when identified picture Stacy in a Hall and his low radio station featured newspaper. in the Missoulian
At the *3 jury October was to reach the unable nec- essary any judge unanimous on of the counts for which the declared a mistrial and set for a date a second trial.
The defendant testified at first trial but to chose refrain from testifying in declaring right against self-incrimi- nation under Fifth introduced Amendment. State into evi- portions dence testimony of Hall’s from the trial. The District Court pursuant allowed the evidence to M.R.Evid. De- objected alleging fendant not an that the was admission party-opponent 801(d)(2), a according to Rule M.R.Evid. Fur- thermore, the State introduced the from the first trial to rebut of Appellant contended that defendant’s witness. improper testimony. this was an use of Hall’s former Defendant also objected any grounds on the new that the trial nullified However, of Hall. District Court ruled that the testi- mony was admissible.
Hall De- felony was on theft and on convicted all three counts of thirty years cember was sentenced the Montana Prison, years suspended. with all nine but
Appellant
improperly
first contends
the District Court
ad-
attempted to
appellant’s
mitted
The State
others acts.
August
on
burglary
introduce evidence of a
committed
burglary
a stereo
plead guilty.
in the
was
The item taken
car-
cartridge.
because the stereo
The State introduced this evidence
tridge
compatible
equipment taken from the
was
with the radio
power
running
three radio
radio station.
stations for
low
prior
requirements
proper
evidence
for
admittance
acts
Once the State has fulfilled the
Just,
applies
espoused in
184 Mont. at
four-part
Court
1. of crimes or time; nearness scheme, tendency plan system; to establish a common probative substantially 4. the is not out- value of the evidence weighed by to the defendant. not similar burglary contends that the and the theft are distinct, Both Although charges
crimes. the acts are similar. are compatible for use illegal equipment, were the conversion of radio (Mont. 1986), In State v. Tecca low radio station. [220 68,] St.Rep. that the acts come Mont. we held exception they sufficiently to sustain within the Just are similar (Mont. 1987), 20,] 740 admission. In State v. Clausen [228 charged St.Rep. P.2d was with where the defendant mushrooms, possession marijuana, psilocybin magic evidence selling We declared that acts of cocaine was admitted. quantities were irrelevant types drugs difference in the and their — similarity actions. was defendant’s *4 different, In the de- appeal, although charges the case were on the the same. illegally taking equipment were fendant’s actions of radio sufficiently The acts here are similar. was a in there requirement Just is nearness time. Since
The second acts, span only time six the is not at months between remoteness issue. Just prior test is whether the acts tend to
The third of the tier scheme, system. equipment plan show a Both taken common equipment burglary the theft in the are suitable for taken use in a low was similar. station. taken instances, appellant In equip- both to the where the went business located, business, acting ment was if was on as he official order to gain equipment. take show entrance to This tends to a common scheme, system. plan, or
Although may showing appel- there be some towards by admitting acts, lant prior probative value out- weighs similar, prejudicial effect because acts are are near time, important and show a common scheme. It is to look at all four of the Just determining admissibility factors test prior when acts evidence. questioned only
“. . . failure of evidence to meet one element of the Just admission, is not sufficient refuse its decision to admit lightly. evidence should be made The four factors together.” must be considered (Mont. 1986), v. T.W. 280,] [220
St.Rep. 368, 371.
We hold that evidence of crimes or acts Hall was admitted.
The second issue is whether District Court admit ted defendant’s from the trial the second trial at 46-16-701, MCA, which the defendant did not Section reads: “A ‘new trial’ is a reexamination of the issue in the same court finding another after a verdict has been rendered. The granting places parties position of a new trial if the same as there had been no trial.” conjunction 46-16-701, provides with Section Section 46-16-702
pertinent part:
“(1) Following finding may grant guilty, verdict or court required justice.” defendant a new trial the interest of contends that Section 46-16-701 here, of the the first case no trial nullity. can be used because it is a only granted statutes show that where a new be there “finding” guilty” has been a “verdict of the former or a trial. Dictionary decision or Black’s defines verdict as: “The formal *5 finding by jury, “finding” made a ...” A is “A defined as: upon question judicial of fact reached as the result of a examina- court, investigation by jury, tion or . A hung jury . . etc.” is de- in irreconcilably opinion fined Black’s “A in as: so divided they agree upon any Dictionary cannot Black’s verdict.” Law 1979). ed. “finding” contends that there was a trial apply, preventing Sections 46-16-701and -702 former being However, finding. admissible. it is clear that there was no hung jury requisite and mistrial do not meet the standards of Therefore,
finding or verdict in Sections 46-16-701and -702. we hold applicable. that the statutes are not Sections 46-16-701 and -702 are justice only concerned with a new the interests of for defend- ants who have prior testimony been convicted. New trials where basis, granted by allowed must be on a limited limited Sections 46-16-701and guilty finding guilty -702 after a verdict of or a by the court. finding
The District grounds Court made its on the that the former testimony by party-opponent Hall was an admission of a within the 801(d)(2) confines of provides pertinent Rule M.R.Evid. Rule part:
“(d) hearsay. hearsay Statements which are not A statement is not if:
“(2) by party-opponent. Admission The statement is offered (A) against party statement, and is his own either his individual representative (B) capacity, or a or a statement which he has adoption manifested his . or belief its truth . .” The State former introduced the of Hall as an admission by regarding possession of the stereo and radio question. by party-oppo- Statements made a declarant who is a simply hearsay, by nent are him not classified as but are admissions against are used later his interest. by they The statements were made Hall are reliable because voluntarily, oath, made opportunity under of cross-ex and with the testified, repre amination. appellant At the time that the he was by voluntarily sented counsel and took the stand. Once the defend voluntarily, oath, ant took subject the stand under to cross- examination, knowing he made a waiver:
“A privilege against defendant who chooses to waives his compulsory respect he self-incrimination with
gives, complete waiver effective because the and that is no less stand in defendant have been motivated to take the witness by place only strength first evidence reason of the of the lawful ad- against him.” duced
Harrison v. States United admissions, appellant 1051. When makes oath, whether down at local tavern under the statements can proceedings. be used interest at later fact that reliability. admissions been their have made under oath bolsters Therefore, 801(d)(2), M.R.Evid., testifying at the under made which were admissions the District Court trial.
Applicable question introduced into evi- *6 subsequent 804, provides, dence at trials is 804 M.R.Evid. Rule pertinent part: Hearsay Exceptions: “Rule 804. declarant unavailable.
“(a) unavailability. Unavailability Definition of as a in- witness cludes situations which the declarant: “(1) by is exempted ruling ground privilege the court on the of the of testifying concerning subject matter his statement; from of [Emphasis supplied.]
“(b) Hearsay exceptions. following by are not excluded the hearsay if the rule declarant is unavailable as a witness:
“(1) testimony. Testimony given Former as a at witness another (B) hearing of the same or a . proceeding, different . . criminal proceedings, against actions and if party the whom the now an opportunity develop offered had similar motive the direct, cross, by redirect examination.” testify by
Because Hall chose to not he was unavailable declared witness, the court as a matter of As his privilege. an unavailable for- mer can op- be used in he had the trial where portunity to decide whether or not to may
Whether defendant be question impression used at the second trial is a of first this specifically Court. There are no address Montana cases which prior testimony subsequent Ap use of trials. The Court of in Edmonds peals from the District of discussed issue Columbia (D.C. v. United States 112-113, 1959), 108, cert. de Cir. 273 F.2d nied, 977, 1062, 4 362 U.S. 80 S.Ct. L.Ed.2d 1012: held, otherwise, generally
“It is that a de- unless a directs statute 64 the stand his own behalf
fendant a criminal case who takes against asserting privilege testifies self-incrimination without testimony given it thereby privilege waives the as to so that subsequent The fact against be used him in trial of the same case. does that not the stand at the second trial defendant does take prevent testimony given it not use of his at the would otherwise be admissible.” States v. general rule: United
Other federal cases have followed this 685, aff’d, (4th 211, 1973), Anderson U.S. 94 S.Ct. Cir. 481 F.2d 417 (9th 1972), 20; London v. Patterson 41 463 F.2d L.Ed.2d Cir. denied, Ayres 196; cert. 36 L.Ed.2d U.S. 93 S.Ct. (5th 1952), 739; v. United States Warde United Cir. 193 F.2d (D.C. 651; Heller v. States 1946), States United Cir. 158 F.2d denied, cert. 1932), Cir. U.S. 57 F.2d S.Ct. (dictum). L.Ed. 1298 requires
A the deci- rights valid waiver of Fifth Amendment testify knowledge sion to of its be an decision with consequences. testifies, against
“. self- voluntarily privilege . . when a witness amply respected accepting testi- incrimination is without need of mony adversary process .... antiseptic freed from the choice, advantage weighing Such a witness of the has the after putting privilege against advantage self-incrimination witness, reliability forward his as a version the facts and at all.” Brown v. United States appeal, represented counsel and the case here on Hall was
made,
rights when he vol-
knowing
waiver of his Fifth Amendment
untarily
of his
chose to
in the first
trial. He was advised
rights
to tes-
knowing
and therefore made a
tify.
then his
privilege
a defendant waives this
and testifies
“[0]nce
State v.
testimony
subsequent
trial.”
can be used
him in a
People v.
Haggard
(1971),
260,
249,
94 Idaho
486 P.2d
263. See also:
Arrington
Carlson
1983)
People v.
490;
(Colo.App.
682 P.2d
1986)
1018;
aff’d,
1983)
390,
(Colo.
(Colo.App.
P.2d
677 P.2d
712
Peele
People
State v.
(1976)
264,
835;
v. Downer
192 Colo.
(1973)
58,
Wash.App.
10
defendant’s
65 594, State v. (1977), 115 Ariz. Stoneman 566 court is admissible.” 1340, P.2d
Appellant also
was im
contends that
properly
testimony.
as
Hall claimed he received
admitted
rebuttal
Company
York. Other wit
from PGL
New
acquiring
equip
reported
nesses
Hall
means of
stated that
other
Testimony
prior prosecution
properly
ment.
is
testimony.
despite
admissible
the fact
it was used as rebuttal
that
denied,
Houp
United States v.
1972),
cert.
Cir.
462 F.2d
denied,
reh.
409 U.S.
34
S.Ct.
L.Ed.2d 704.
We hold
that
trial was
according
to Rules
M.R.Evid.,
precedent.
and federal and state
issue is
third
whether the doctrine of
is
cumulative error
appeal.
general
this
rule
is
of cumulative error
required
reversal
is
if a number of errors are accumulated
Meidinger
prejudice
to a fair trial. right
defendant’s
(1972),
58;
State v.
160 Mont.
McKenzie
P.2d
Affirmed. HARRISON, GULBRANDSON,
MR. WEBER, JUSTICES SHEEHY and McDONOUGH concur. HUNT, concurring:
MR. JUSTICE I majority concur in the result but all that is said opinion.