*1 STATE OF MONTANA, Respondent, Plaintiff and v.
DANIEL HENDERSON,
Appellant.
Defendant
No. 04-694.
Submitted on Briefs December
2005.
Decided December
2005.
MT
For Carl Appellant: McGrath, Attorney Hon. Mike Montana Respondent: For Helena; General, Attorney General, Fowler, Assistant Mark C. Great Falls. County Attorney, Light, S. Cascade Brant of the Court. Opinion COTTER delivered *2 JUSTICE (Henderson) judgment from the appeals Darnel Henderson ¶1 Court, Cascade Judicial District Eighth entered the sentence felony convicting him of the offenses County, jury a upon verdict endangerment tampering physical arson, criminal burglary, affirm. evidence. We appeal: Henderson raises two issues on
¶2 a allowing the District its discretion 1. Did Court abuse ¶3 lay of his testify regarding aspects to witness certain firefighter investigation? sentencing? violated at process rights 2. Were Henderson’s due
¶4 FACTUAL AND PROCEDURAL BACKGROUND felonies, charged The of Montana Henderson with four State ¶5 it, unlawfully apartment, into an set fire to alleging he broke cigarette after endangered building occupants lighters and concealed proceeded to trial. pled guilty, and the case arrest. Henderson Wiench, the witnesses, including firefighter Bobby testified for Eleven State, for the defense. and three witnesses testified testimony, objected counsel numerous During Wiench’s defense ¶6 and, qualified was not grounds times that Wiench therefore, The Court certain lacked foundation. District objection prosecutor explained overruled the first such after question. to type testimony anticipated response After defense counsel to voir dire objection, the court allowed second determining Wiench ultimately objection, overruled the witness lay firefighter. as a testify could as a witness based on his subsequent objections. The court also overruled felony of all four Ultimately, convicted Henderson (60) sixty years without sentencing, the State offered offenses. At (50) fifty years with Previously, however, the State had offered parole. (25) offer. The suspended. rejected Henderson twenty-five years (20) felony years for twenty Court sentenced Henderson District (5) (20) years for burglary, and five arson, twenty years felony for concurrently. to run These were felony tampering. evidence sentences (50) years felony criminal fifty him The court also sentenced endangerment consecutively to run with the other felony three counts. (MSP). The sentences to be were served at Montana State Prison appeals. We set forth necessary additional facts as in the discussion below.
STANDARD OF REVIEW rulings admissibility evidence, We review on the including oral testimony, for an abuse Cesnik, of discretion. State v. (citations omitted). 63, 12,
DISCUSSION Did the District Court its allowing firefighter abuse discretion in testify regarding as a aspects investigation? certain hisof 702, M.R.Evid., 701 and Rules address and expert testimony. 701, M.R.Evid., provides: Rule
[i]f testifying the witness is not as an expert, the witness’ testimony in the of opinions form or inferences is limited to those (a) opinions or inferences which are rationally based (b) perception helpful of witness and ato clear understanding the witness’ or the determination of fact in issue. provides: *3 scientific, technical, [i]f or specialized knowledge other will assist the trier of fact to understand or the evidence to determine a fact issue, qualified a witness as knowledge, skill, an experience, may training, testify education thereto in the form opinion of an or otherwise. 46-16-201, MCA,
Pursuant Rules and apply § 701 criminal cases as well as in civil cases. the asserts District Court abused discretion in its testimony regarding origin, points pour of
patterns, pattern, the fire the lack of evidence of mechanical and causes, building electrical the risk to occupants possibility the the fire could have blocked exits. He contends of the admission testimony prejudiced arson, him with burglary criminal endangerment testimony convictions because the was “the foundation of the case” State’s and was offered to establish the fire “was intentional challenge and not accident.” Henderson does not physical evidence; his conviction of the offense of tampering with therefore, we do not address it. continuing trial, request objection Defense counsel did not a at nor
does Henderson assert on that we should construe his appeal
37 argument not address an objections. We do objections continuing as object or to contemporaneously has failed appellant issue when the 108, 19, 327 Todd, MT v. 2005 ¶ raise the issue at trial. State otherwise omitted). (citation Here, 65, 19, 677, 19 Mont. ¶ ¶ “point definition ofthe term unchallenged testimony includes Wiench’s started,” ruling out his discussion of “where the fire origin” of exchange causes, following and the and electrical mechanical patterns: regarding pour a
Q: exactly concept pour pattern? is the of What has been you look for whatever substance pattern A: It’s a where area. So will hotter than the rest will burn poured bum area. It deeper than other you’ll have an area that’s burned piece carpet, example. to the Where spread hasn’t area-a burn, caught it if it’s is, past but it won’t bum much it’ll enough carpet. to where the-the rest of the fast damage, upon the Q: specific So that leaves a kind of burn you’ve fires worked? Yes,
A: sir. stated, object portions As Henderson did not to these of Wiench’s unchallenged. testimony they remain addition, sought and we note that Henderson’s counsel presence in the of the permission
received to voir dire Wiench dire, voir to defense during During responded the State’s case. Wiench to find a by--among things-discussing other how questions counsel’s arson, fire, describing discussing point origin of a indications of attempting counsel pour patterns. appreciate While we challenge qualifications expert, as an the fact is that testimony, and the court admitted State offered the adduced it as If Henderson’s counsel believed that such. lay testimony, he should have during the voir dire was inadmissible a limiting asked the to strike the or moved for court (Error may upon be predicated instruction. Rule M.R.Evid. party right ruling which admits evidence unless substantial record.); timely objection appears or motion to strike affected and 130, 25, Long, MT see also State v. (When improper or strikes judge a trial withdraws *4 accompanying cautionary
testimony from the record with an committed its introduction jury, any instruction to the error cured.). us, counsel did case before Henderson’s In the presumed continuing objection much register he neither. Nor did dire part upon Wiench’s voir premised which was ensuing A party right waives the to contest evidence on appeal when party’s Smith, actions elicited the evidence. v. State 374, 10, above, As stated the District Court overruled Henderson’s objection when the prosecutor the anticipated response described to his On question. appeal, Henderson ruling does not mention this or response, which that a was battalion chief first told him possibility Thus, about the of arson. we decline to address Wiench’s testimony following objection. the first objected Henderson next prosecutor when the asked if Wiench he one believed item in the living room was a point origin. After dire, defense counsel conducted voir the trial court overruled the objection, reasoning today Wiench “is and has been demonstrated here be experienced, knowledgeable firefighter an testifying and is within the scope his observations supports and function.” While the record the District Court’s training statement about Wiench’s and experience, presented and, Wiench was not qualified fact, expressly the State stated it was offering Wiench’s testimony expert testimony. remains, question however, The whether following ruling, the below, as set forth testimony:
Q: Wiench, Mr. you scene, through worked did there appear to be the burning areas where most concentrated had place? you taken personally Based on what saw? Yes,
A: sir. There’s three.
Q: they And where were located? room, couch, living A: theOn in the at foot of the bed the bedroom, and spot there in between the bed and closet completely through carpet, where was burnt which was not a protected-none of the protected. rest the area around it was way through. And it had burned all And there was also the area between the bed and the dresser.
Q: you you And personally your saw bed when did walk- through. Is that correct? Yes,
A: sir. Q: you damage And personally saw burn near closet. Is that correct? Yes,
A: sir. Q: you damage actually on the Did also see burn that was *5 couch? Yes,
A: sir. laya part, in above, provides, As stated rationally on inferences that are may opinions state testified based on his exchange, In this Wiench perceptions. his or her therefrom that three and inferences drawn observations burned than others. Such appeared the more apartment areas of to Rule M.R.Evid. pursuant constitutes its discretion in Thus, District Court did not abuse we conclude the second lay testimony the that followed Henderson’s objection. testimony-related the objected again following prosecutor’s request anything in he had seen identify
Wiench where the residence to him. The District Court ruled Wiench pour pattern looked like “unobjected pattern is,” as to what a apply could above, set to “his at the scene.” The forth observations Wiench, following exchange prosecutor then occurred between the beginning photograph with a discussion of an exhibit that unspecified apparently Exhibit 14: is State’s
Q: you your please photo me a that in mind would be Could show a pour pattern? consistent with pattern right
A: This here. over Q: pom- Okay. aspect photo appear of this would to be And what pattern you?
A: the couch where it has bmned You can see the-undemeath It nothing happened. dripped on this side was down. deeper. But dripped pomed it You can see where had down-whatever that underneath on down underneath and started dripped fire. you
Q: you thought house there other rooms where Were seen might pour pattern? have pour pattern. of a pictme
A: The bedroom. There’s a better essentially Q: Number 8. Is that Okay. And this is State’s Exhibit couch? you us on the up a close other item showed Yes, A: sir.
Q: here. This Okay. you. you pictme Let me show another Thank depicted me you 11. Can tell what’s is State’s Exhibit Number this exhibit? away bedding is burnt
A: You can see where the-where the southeast up in the-it would be two sides of bed. But is bed, facing-how everything way bed comer still-you you can still see the blankets. So know that got the fire edge. hotter on this outside
Q: you When explored during your walk-through, this room did it appear that that bed was more extensively burned than other items in the room?
A: Yes.
Q: Just looking your based on at them eyes? own A: Yes.
Q: Oh, sorry. you say? I’m What did A: The floor.
Q: Did that to appear pour pattern be a as well? Yes,
A: sir. Q: And which room was in? that located A: was That in the bedroom.
Q: Okay. you Can me please again? tell where that was In relation to the closet? right
A: It was in front of the closet between the foot of bed and the closet.
Q: you’re saying you And saw more extensive here burning than you immediately did in the areas you’re next to it? Is that what saying? Yes,
A: sir.
Q: again, And this is State’s Exhibit Number 9?
A: Yes. Again, properly Wiench testified as a that ¶18 he personally appeared observed areas on or near the couch and bed that extensively However, more burned than other areas. beyond went scene, also observations made at the to his pour patterns diagrams identifications of and photographs. might While we conclude in another that ¶19 well case identification pour patterns by firefighter a of expert crosses over into the realm testimony, dowe not so conclude under the circumstances presented above, As already here. indicated Wiench had testified without objection 12. patterns. about He then moved to describe the ¶ areas ofthe that to him to apartment appeared extensively be burned. upon personal We have concluded that these statements were based do diagrams photographs observations. 18. The and no more than ¶ observed, illustrate for the of the he apartment the areas to already Accordingly, given which he had Henderson’s testified. object failure to concerning pour patterns, to the we identify in the allowing not err in Wiench the court did conclude he at pour patterns had observed diagrams scene. objected, speculation, on the basis Finally, Henderson endangered been other tenants could have
testimony Wiench objection and allowed his Court overruled by this fire. The District ruling reference to passing Henderson makes to answer. Wiench argument support no presents but in one sentence in his Brief erroneous, he ruling or that Comb’s contention that the District 23(a)(4), thereby. M.R.App.P., requires prejudiced concise, “contain[s] which argument cohesive appellant present presented, to the issues appellant contentions authorities, therefor, to the statutes the reasons with citations will not repeatedly have held that we of the record relied on.” We pages Marriage re arguments. unsupported consider issues McMahon, 175, 6, 53 Therefore, argument. to consider this we decline reasons, foregoing For we conclude the District Court did ruling upon firefighter’s testimony. its discretion in abuse sentencing? process rights due violated at Were Henderson’s argument Court’s presents no the District vindictively illegal. argues exclusively He that the State sentence was sentencing hearing than had higher sentence at the recommended However, previously. offered the record contains no documentation exclusively the State’s earlier offer. We cannot render decision based allegations. Absent evidence unsupported on Henderson’s *7 cannot corroborating allegations supporting argument, his or his we 9(a), M.R.App.P., requires that address the merits of his claim. Rule order, proceeding present must party seeking judgment, review of a to rule on the issues raised. Henderson a record sufficient to enable us has failed to do so.
CONCLUSION reasons, foregoing For the we affirm. ¶24 RICE, MORRIS concur. NELSON and JUSTICES GRAY, dissenting. JUSTICE CHIEF in but not other portions opinion, of the Court’s I concur in respectfully I dissent from in the result the Court reaches.
portions pour of identifications the Court’s determination that Wiench’s and on the scene constituted patterns in in abused its discretion my is view that the District Court Because it admitting testimony State has not satisfied its burden of establishing error, harmless I would reverse and remand a new Consequently, trial. I would not address expert Henderson’s final testimony-related objection, nor would I reach 2. Issue Contrary 19, to the Court’s characterization in Wiench did ¶ merely “describe the areas apartment that appeared to him to extensively be burned” after expert testimony-related Henderson’s objection. only testimony If the at issue were Wiench’s affirmative responses prosecution’s to the questions extensively about “more areas,” be appropriate burned it would testimony characterize that lay testimony as majority based on observations-as properly respect does with testimony to Wiench’s after the earlier testimony-related However, in objection 16. Court acknowledges in beyond personal ‘Wiench’s also went scene, observations made at the pour patterns identifications of diagrams Indeed, and photographs.” pour Wiench identified a pattern presumably in what is opined State’s Exhibit 14 and something “was dripped down underneath” the couch. He also reaffirmed his of pour pattern identification to the close-up picture, presented as State’s Exhibit and identified a separate pour pattern floor, presented on the Exhibit State’s 9. view, my In specific descriptions identifications and of patterns differ apartment from his that some areas of the appeared more burned than opinion. others constitute determining In whether the District Court abused discretion its pour patterns identifications as Rule M.R.Evid., lay testimony on its determination that Wiench was “experienced, knowledgeable firefighter,” appropriate parties address authorities advanced and our related jurisprudence. my opinion, our on cases the issue of whether personnel may testify “official” training witnesses based their are in disarray require purpose clarification for the guiding judges attorneys trial in future civil and criminal cases increasingly subject. highlighted by confused This need is case, Court’s statement that in might another “we well conclude... that firefighter of pour patterns by identification crosses over into the testimony[.]” Therefore, of expert realm See I address the cases in turn. 234, 242, 773 (1989), City In Massman v. Helena 1206, 1211, firefighter’s we concluded a based on
“specialized, knowledge” beyond scope technical *8 43 (1993), Cady later, in v. Hislop M.R.Evid., lay testimony. years Four 392, a officer 249, 388, police we concluded 243, 862 P.2d 261 Mont. training on his of an accident based testify about the cause could testimony was Rule whether that specify did not experience, but we M.R.Evid., 702, expert M.R.Evid., lay testimony or Rule 701, 40-42, 230, Shoesource, MT Payless 2000 testimony. ¶¶ In Onstad v. exclusively 259, 40-42, 38, 40-42, we relied 301 Mont. ¶¶ ¶¶ testify lay law officers could Hislop determining enforcement training experience. witnesses based on their 342, 8-22, 91, 8-22, Nobach, 309 Mont. In v. 2002 MT ¶¶ ¶¶ State 618, 8-22, patrol a officer’s highway 46 we determined P.3d ¶¶ on a medications testimony regarding prescription the effect ability driving opinion criminal defendant’s so, doing In we foundation, rather than requiring (1989), 444, Mont. 781 in Hart-Anderson v. Hauck observed that 702, 1116, case, had addressed Rule 701 or Rule P.2d a civil we not M.R.Evid., emphasis training there on an officer’s but our had in mind the foundational experience “suggested] we adequate of Rule 702" when determined an officer had requirement we Nobach, testify 18. foundation to about the cause of accident. We 1,951 578, Gregoroff(1997), that State v. 287 Mont. P.2d also reasoned by clarifying “‘fillsin the we left in Hart-Anderson law blanks’ expert opinion can about the cause of an enforcement officer offer an required by long presented, accident so as sufficient foundation is 702, Nobach, 19-20. M.R.Evid.” ¶¶ Falls, 189, Similarly, City v. Great Christofferson 35-49, 1021, 35-49, 469, 35-49, 74 we P.3d ¶¶ ¶¶ ¶¶ paramedics’ opinions excluded properly determined a trial court intubation because those regarding the likelihood of successful testimony requiring opinions were the realm of “within cases, that, “[w]hile we stated we did tracing prior foundation.” our that the officers’ Hislop in either or Hart-Anderson expressly not state 702, expert testimony admitted as under Rule properly language of those opposed lay testimony under Rule 47. We certainly Christofferson, inference.” supports cases the officers in that case “were distinguished Onstad on the basis that [in “the offering opinions,” paramedics scientific while being upon just Christofferson, to do that.” called were Christofferson] Frasure, MT later, in v. year ¶¶ State Approximately 17-18, 17-18, 100 concluded 17-18,323 we Mont. ¶¶ ¶¶ police training officers’ “provided a sufficient *9 lay for to provide opinion testimony foundation them as to whether it likely [the possessed defendant] that criminal the drugs with exclusively intent to sell.” relied Hislop doing We on Onstad and in so. As demonstrates, this recitation developed ¶32 two lines of cases have personnel with to whether “official” may testify lay scientific, witnesses about specialized knowledge, technical or other training cases, based on their experience. consisting and One line of of Onstad, Frasure and training may holds that and experience form a 701, M.R.Evid., for an “official” person’s basis lay testimony. The line, consisting erson, other primarily of Nobach and Christoff Massman, holds that testimony training experience based on and conveying scientific, knowledge technical or specialized offered to 702, M.R.Evid., assist the trier of testimony. fact is Rule I believe obligated rectify we are to this situation as we have done with in frequency years parallel authority some recent when lines of have See, Quantum Electric, e.g., come to our attention. Schaeffer, Inc. v. 29, 16-30, MT 193, 16-30, 1026, 64 Mont. 16- ¶¶ ¶¶ ¶¶ 30; Bradshaw, 92, 14-16, 178, In re Estate ¶¶ ¶¶ of 14-16, 14-16. ¶¶ The plain language M.R.Evid., of Rule recognition and our in Hislop that certainly expert testimony almost Christofferson case lead me to testimony conclude that based on a of “foundation” training experience is expert testimony under Rule M.R.Evid., “scientific, testimony technical, when that involves or other specialized knowledge [that] will trier I assist of fact.” would Frasure, any overrule they Onstad other cases to the extent state experience” “training may lay testimony. form a basis for aAs result, I also present would conclude the District Court in the case was may incorrect in reasoning training that form a basis lay Turning pour patterns to Wiench’s identifications over testimony-related objection, Henderson’s I first observe Rule limits lay testimony opinions to inferences Nobach, 15-17, on rationally perception. based the witness’ we ¶¶ lay reasoned an officer could not offer opinion about because, effects of on a prescription drugs person’s driving ability while intoxication, recognize most adults can indications of alcohol we were “not persuaded people sufficiently knowledgeable are about common drug symptoms drug consumption, much less the effects ability consumption person’s safely, on to drive a motor vehicle personal on subjects, based those lay opinion offer Similarly, I am not observations, persuaded Rule 701.” here under pour pattern of a sufficiently concept familiar with the lay person is identify photograph. scene in a one on the Moreover, “unobjected agree I do not with the Court forth in description pour pattern, of a as set general to” jury, after regard. question in this The is not whether dispositive patterns presence pour could infer the hearing description, testimony regarding personal perceptions. patterns actual identification of question The is whether Wiench’s based on expert opinion, opposed is an therefrom. observations and reasonable inferences the Court’s respect, wholeheartedly agree In this I no more than photograph 19 that the exhibits “do observation [Wiench] apartment observed[.]” the areas of the illustrate for Indeed, lay person identify could I do not believe an unassisted light ofhis pour patterns photographs-even Wiench identified *10 unchallenged general pour pattern. of a The fact that the description my pour patterns pictures are not obvious in the further buttresses solely personal based his view that Wiench’s is not therefrom, by inferences contemplated as observations and reasonable Rule M.R.Evid. part, as expert testimony, defines in Rule
“scientific, technical, specialized knowledge” that will “assist or other requires only the trier of fact understand evidence” skill, training, qualified by “knowledge, experience, view, my identifications may testify thereto[.]” education In beyond went of at the scene and in the well pour patterns scientific, testimony, specialized or other and constituted technical knowledge understanding in offered to assist Furthermore, based photograph depicted patterns. exhibits pattern if “leaves a pom- answer when asked Wiench’s affirmative worked,” I you’ve specific upon of the fires damage, kind burn firefighter-not merely as a believe Wiench’s pour patterns and recognize identify him observations-enabled Thus, I conclude Wiench’s qualified testify him to about them. would squarely fall within the definition pour patterns identifications of only be admitted M.R.Evid., testimony, and could offering it expressly such. Because the State stated was Court abused testimony, I would hold the District its discretion Finally, it is critical to address the any State’s contention that
error
this case-which I conclude occurred-was harmless because no
prejudice
correctly points
resulted. The State
to the harmless error
analysis
Kirk,
we first set forth in State v. Van
Mont.
evidence” test applied determining once whether errors were harmless. We did so analysis” because that test was a “‘scorecard’ the quantity evidence, focused on rather quality than the of the created unpredictable “an subjective framework,” and could have the consequence inviting “unintended yet the State to offer inadmissible damaging case, evidence in a strong by even if happenstance, since the happen worst that can is that the error is noted but deemed harmless.” Kirk, Van 34-35. ¶¶ place “overwhelming test, evidence” we adopted-as the correctly posits-a two-step analysis
State determining for whether error is step harmless reversible. The first is to determine whether Kirk, the error is structural or trial error. Van 37. Structural error “is typically dimensions, trial, precedes constitutional ... undermines the fairness the entire proceeding” requires Kirk, automatic reversal. “typically Van 38-39. Trial error ¶¶ occurs during presentation of a jury” case to the and “is amenable to qualitative prejudicial impact assessment... relative to the other Kirk, evidence introduced at trial.” Van If error, the error is trial the analysis proceeds to the second which step, determine whether the State has demonstrated the error was not prejudicial under the Kirk, circumstances. Van 41-42. Under this step, ¶¶ State first “must direct us proved to admissible evidence that the same Kirk, facts as the tainted if is possible evidence” to do so. See Van ¶¶ 44-45. If the State directs us regarding to cumulative evidence tainted go element of the or the offense evidence does not toward an element, demonstrate, the State then must qualitatively *11 evidence, comparison to the admissible that there is no reasonable possibility might the tainted evidence have contributed to the Kirk, conviction. Van ¶¶ The testimony State asserts the admission of Wiench’s occurred and, therefore,
during presentation of evidence is trial error. It Kirk, then its recites burdens under Van and asserts the cumulative, and other witnesses’ constitute admissible not, regarding evidence the mental state element of arson. It does however, regard to prejudiced discuss whether Henderson was with charges, nor does endangerment or criminal any aspect burglary theof any relation to Kirk in aspect of Van “qualitative” it address charge. charge, including the arson admission of the State agree I with therefore, and, I error constitutes trial patterns
identification of whether analysis and determine step next to the proceed would Van prejudicial. See error was not has demonstrated the the State State has met its assuming arguendo that the Kirk, 41-42. Even ¶¶ cumulative, establishing admissible evidence directing us to burden of the State knowingly, I would conclude purposely acted failed-indeed, meet its burden utterly attempted-to has not even has comparison to the admissible demonstrating, qualitatively that Wiench’s evidence, possibility there was no reasonable to Henderson’s arson testimony might have contributed tainted conclude, the circumstances of I would further under conviction. State, that the abuse contrary argument from case and absent prejudicial also discretion charges. endangerment burglary to the and criminal that the at issue I from the Court’s conclusion dissent failure to I also from the Court’s total dissent I reverse and jurisprudence important address our on this issue. would arson, burglary a new trial on the and criminal remand this case for charges. endangerment