*1 MONTANA, OF STATE Appellee, Plaintiff and JR., LAURENCE DEAN JACKSON, Appellant. Defendant DANo. 06-0195. 20,May 2009. Submitted on Briefs Decided December 2009.
For Hon. Steve Montana Appellee: Krauss, Attorney General; Helena; Don Jonathan M. Assistant Ranstrum; County Attorney; Chinook. Blaine Opinion
JUSTICE RICE delivered the of Court. 29,2003, Laurence night May deputy pursued On the a sheriffs ¶1 Harlem, Jackson, Jr., through foot a dark field near Montana. Dean on and, Jackson, joined pursuit struggle A second after a with deputy gunshots. left dead and the other wounded from deputy one charged attempted Jackson with deliberate homicide death deputies, sought penalty homicide of the deliberate charge. In a Missoula the deliberate homicide November guilty of counts. The District Court County jury found Jackson both counts, imprisonment parole to life without on both sentenced Jackson felony offender. years parole persistent and one hundred without as a following issues: appeals presents his convictions and support there sufficient evidence to Jackson’s convictions 1. Was ¶2 attempted deliberate homicide? of deliberate right process by to due violated the State’s 2. Was Jackson’s ¶3 evidence at trial? presentation DNA by denying err Jackson’s motion for a 3. Did the District Court
¶4 withholding of upon alleged exculpatory new trial based the State’s process? of Jackson’s to due information violation by authorizing its discretion 4. Did the District Court abuse leg during of a restraint trial? use non-visible by J denying 5. Did the District Court abuse its discretion ackson’s a witness a scar on his abdomen at trial? request show by permitting 6. Did the District Court abuse its discretion expert testimony State to offer rebuttal matters raised Defense for the first time at trial?
BACKGROUND 29,2003, May County deputies, After dark on two Blaine Sheriff s Janis, Joshua Rutherford and Loren entered a field in Harlem, Montana, minutes, in pursuit of Jackson. Within several both *3 deputies Deputy quickly had been shot. Rutherford died from a chest, gunshot Deputy wound to the and Janis out of the stumbled gunshot shrapnel field with a wound to his forearm and a head wound. alleged blackout, Due to an alcoholic Jackson was unable to recount events, leaving testifying Janis as the sole witness as to what occurred. day, began drinking Earlier that Jackson alcohol and continued evening hours,
to drink into the becoming increasingly aggressive. vehicle, in riding While his cousin Cassandra Jackson’s not, demanded him she return to Harlem. When she would began kicking seat, the back of the front and passenger threw an forehead, unfinished beer at Cassandra’s causing injury. Jackson also began fighting in the back seat with another passenger, William Gone, “Sprout” nose, Gone. Jackson and punched finger, bit his and ear, blood, leaving fingernail and in pieces Gone’s flesh the back seat. Cassandra and passenger pulled another Jackson off of Gone and car, leaving out of the him shoeless on the side of the road. Jackson eventually way nearby Harlem, made his back to to the trailer home girlfriend, of his Mari Blackbird. When Blackbird returned home that night children, with her mother and she discovered Jackson inside. and barred the trailer home bloodied, Jackson had trashed and
Drunk police, Blackbird called the door, inside. refusing to let Blackbird her her trailer and locked had ransacked that Jackson complaining he ran out the calling police, heard Blackbird out. When Jackson returned, yard. Jackson neighbor’s across a door and fled back however, nearby in bushes. and hid call, Officereceived Blackbird’s County the Blaine Sheriffs When Chinook, Janis asked nearby town.
Janis, on-duty deputy, was Deputy of the incident. notify Rutherford dispatcher Deputy in Harlem and was closer to duty, resided Rutherford was off but Chinook, high Harlem at a driving then left towards Blackbird. Janis the scene first and Rutherford arrived at speed. Deputy rate of him, and told “He’s over pointed mother bushes Blackbird’s Jackson started It’sLarry Jackson.” hiding there. He’s the bushes.... chase, Jackson on foot gave pursuing Rutherford running, Deputy and ditch, field, irrigation Highway across U.S. through open across an highway. field on the southern side of the grassy and into a Rutherford issue various commands Deputy heard Witnesses this, it,” Jackson, do it’s not worth “Get down. saying: “[S]top, don’t this,” stay this,” stop, please “[J]ust don’t do “[PJlease Please don’t do down, yourself, Larry,” it harder on and down, just stay don’t make deputy.” I’m a “Stop. Get down. ultimately caught Jackson and the two Deputy Rutherford tussle, County Blaine
struggled. During Deputy Rutherford lost his bloody Jackson lost his shirt. Jackson was also cap, Sheriffs ball and flashlight Deputy from him. While Deputy Rutherford’s able wrest Jackson, Janis arrived at struggling Deputy Rutherford was with Green, neighbors, Fred and Blackbird’s residence. Blackbird’s Debbie run past Rutherford and Jackson had Deputy informed Janis Janis in their irrigation highway. proceeded ditch and across the yelling heard the beam of a Highway direction on 2 until he saw field, Rutherford. flashlight in the dark which he assumed was proceeded not. left his into the field toward It was Janis vehicle light. located power As Janis neared the fenced corner of a substation darkness, exhausted, field, from the emerged Rutherford winded, startled, realized that breathing heavily. Janis was *4 them. deputy’s flashlight approaching Jackson had the and was dark, yelled, “well emerged from the raised his arms and Jackson Rutherford told Janis approached, Deputy me then”! As Jackson arrest The OC spray, and Janis did so. spray pepper Jackson with OC effect, as Jackson to have its intended pepper spray appear did not face, away. Janis off his turned and started walk wiped spray canister, He pulled asp, and out his a steel club. dropped spray didn’t and get ground. comply, down on the Jackson ordered Jackson in the asp, struck Jackson with the first walking away. continued Janis knee, buckling ground. Jackson to the Both thigh, and then place Rutherford an deputies Deputy then rushed Jackson. was able ground, again on the while Janis struck Jackson arm hold on Jackson shin, However, Rutherford soon ordering comply. Deputy him to Jackson, and Jackson grip struggling Deputy lost his on the bit Intending to further strike Jackson Rutherford twice on shoulder. “boom, he asp, gunshots with his Janis then heard later described as ba-boom,” Deputy out, Rutherford cried was thrown backwards. “Loren, shot, by I’ve I’ve shot the heart.” Janis realized he been been arm, had a slight been shot his left and felt burn on his face. Jackson retreated from the and Janis deputies saw Jackson holding Deputy gun away. Rutherford’s as he walked Janis then gunshots coming heard more and saw muzzle flashes in the dark from retreating Jackson. Janis in an effort up backed to draw Jackson’s fire, away fire from Rutherford and returned discharging five rounds drop ground, toward Jackson. Janis saw Jackson and he he had hit patrol believed Jackson. Janis headed to his car to call for help, passing Jackson en route. car, At the patrol dispatch Janis radioed for an ambulance and down, exclaiming “officer
backup, neighbors, officer hit.” Blackbird’s Greens, Janis, Green, “Oh, Christ, caught up to and Janis said to Fred, hit, Josh is he’s down.” then up Green Janis looked to see emerging approached Jackson from the field. Jackson the car in an manner, causing Janis to fearful awkward be attack. Janis was gun, yelled Jackson, able to reload his and testified that he at “Get ground.... F-ing on the you F-ing down You shot Josh and shot me. Get ground going you.” commands, down on the or I’m to kill giving While mentally designated ground Janis a line on at which he determined to and kill if Yelling shoot Jackson he crossed it. that he gun, ground didn’t have a Jackson on the flopped pants took longer gun. off to show that he no had Deputy Rutherford’s Janis, screaming shouted fucking obscenities back “Go ahead and I I’m going prison.” Eventually backup shoot me. don’t care. back to arrived, custody. into Responding paramedics Jackson was taken determined that Rutherford was dead at the scene. While being checked the paramedics, responded that he was *5 myself.” “brought that he had this on “okay,” and Deputy deliberate homicide of charged The State Jackson with gave ofJanis. The State attempted and deliberate homicide Rutherford for the deliberate penalty intention to seek the death notice of its felony as a offender. Jackson persistent and to treat Jackson homicide attorneys, attorney Havre Robert Peterson by two represented was Sheehy. changed The Court the attorney Edmund District Helena County. parties engaged The for the trial to Missoula venue forty samples more than discovery, including testing DNA extensive Upon from the scene. Jackson’s and other materials taken of blood analysis approved the District Court defense costs DNA petition, trial expert. and a DNA began in Missoula District Court on October jury The trial later, 5,2004. three weeks on November The and concluded over witnesses, testimony including of 53
jury presented with the witnesses, physical items evidence. approximately case, to dismiss the At the close of the State’s Jackson moved The District charge, arguing homicide insufficient evidence. deliberate jury approximately deliberated for Court denied Jackson’s motion. convicting a Jackson of returning and a half hours before verdict five attempted deliberate homicide both the deliberate homicide deliberation, argument jury the found charges. After additional proved aggravating that the State had circumstance officer, Rutherford, in the deliberately Deputy peace killed a while 46-18-303(l)(b), performance duty, pursuant of his MCA. § verdicts, Jackson filed a motion for a new Following duty its it claiming performed could have because quickly, proved too the State had not material rendered verdict crimes, support elements of the and there was insufficient evidence to motion, hearing, a Court denied the the convictions. After District beyond find a concluding “any rational trier of fact could necessary to each support reasonable doubt the essential elements given” justice require [a] and that the interests of “do not new verdict sought modification of the verdicts.” Jackson then a writ of trial or Court, asking control from this us to declare supervisory 46-18-301(2), MCA, requiring sentencing hearing unconstitutional days held of the verdict. We denied capital in a case be within 534, 115 Jackson v. Seventeenth Jud. writ. Dist. P.3d 219. hearings on sentencing Court conducted bifurcated The District non-capital attempted homicide count and the capital deliberate investigation report A was filed presentence
deliberate homicide count.
court,
conducted
addressing
both counts. The District Court
with
sentencing hearing
through
from November 28
December
capital
statutory
factor of
weighing
single
aggravating
After
2005.
acting
performance
officer
peace
deliberate homicide of
factors,
non-statutory mitigating
duty, against
weight
history, the
including
background,
Jackson’s character and
criminal
offense,
others, the
impact upon
facts and circumstances ofthe
and the
imprisonment
parole
District Court sentenced Jackson to life
without
for the deliberate homicide of
Rutherford. The District Court
life
the attempted
sentenced Jackson to two additional
sentences for
being persistent felony
deliberate homicide of
Janis and for
*6
offender, and ordered all three
to run consecutively.
sentences
7, 2006,
trial,
On March
Jackson filed another motion for a new
¶19
claiming
exculpatory
the State had withheld
information. Jackson
claimed the State had
produce
during
failed to
statements Janis made
counseling
responsible
sessions that he had started to believe he was
for Deputy Rutherford’s death. The District Court conducted an
23, 2006,
evidentiary hearing on Jackson’s motion on March
subsequently denied the motion. The District Court reasoned that
any
Jackson failed to
required
show
the elements
to establish a
(1963).
Brady Maryland,
83,
violation under
v.
373 U.S.
ANALYSIS 1. Was there support evidence to sufficient convictions deliberate and attempted deliberate homicide? case, At the close of the State’s Jackson moved to dismiss the charge, asserting deliberate homicide that the State had failed to present jury sufficient evidence which the could find that Jackson had caused the Deputy death of Rutherford. The District Court denied motion, jury subsequently guilty and the found Jackson ofboth the Deputy deliberate homicide of Rutherford and the attempted Following deliberate homicide of Janis. convictions, ground
moved for a new trial on both on the that the support charge. evidence was insufficient to either The District Court again denied the motion. We review de novo the District Court’s denial of a motion for new sufficiency
trial on the basis of
of the
support
evidence
verdict.
Trujillo,
101,
8,
319,
State v.
2008 MT
342 Mont.
(citing State v.
2007 MT
337
¶
Tuomala,
330, 13, 346
167, 194
511);
MT
Mont.
P.3d 82
State v.
2008
¶
1102).
1, 180
62, 33, 342
MT
Mont.
P.3d
(citing
Rosling,
State v.
2008
¶
light
prosecution
the evidence in the
most favorable to
We view
any rational
trier of fact could have found the
determine whether
beyond
elements of the crimes
a reasonable doubt. State
essential
(citations
148, 42,
Duncan,
MT
343 Mont.
(1975); State v.
2002 MT
evidence to convict him of either contending that the State’s entirely case was based on insufficient circumstantial evidence. argues eyewitness, Janis, that the State’s sole Deputy gun admitted that he did not see Jackson fire the at the time of the shot, fatal did argues nor he see how he was shot. Jackson further that events, the physical evidence contradicts Janis’s account ofthe and fits theory that deputies defense fired the shots. (1) points argument: Jackson offers various to substantiate his if described, Deputy range Jackson shot Rutherford as Janis at close during their struggle, Deputy powder Rutherford would have had (2) none; body, burns on his clothes or but there were it would have
71 nearly to fire the initial two shots impossible for Jackson been (3) described; testimony that Jackson Janis’s simultaneously, as Janis in of him to the ground were on the front Deputy Rutherford testimony that expert’s inconsistent with Jackson’s they struggled as is (4) side; from his left Janis described the bullet entered Janis’s arm in three accomplished not have been chain of events that could seconds, dispatches the two radio fifty the time between minutes (5) Janis; weapon, have fired his own by Deputy Rutherford must for residue while positive gunshot that Rutherford was given Deputy (6) flashlight had negative; Deputy because Rutherford’s Jackson was blood, Jackson could not have fired Rutherford’s smears of Jackson’s (7) although leaving grip; his blood on the revolver without also and hit him sprayed pepper spray Janis claimed he Jackson with OC any bruising body on his nor was he asp, with his Jackson did not have the State argues Jackson therefore pepper spray. deterred and that charges did sufficient evidence to establish the present “inherently impossible” interpretation jury adopted evidence. responds presented The State that sufficient evidence was indeed are charges suppositions and that it is Jackson’s which prove flashlight in one because Janis could not have carried his
impossible,
other,
hand,
and still have fired the initial shots which
asp
gun
have been at
deputy.
parties agree
struck the
would
him
Rutherford for
to have been
thirty
away
least
inches
from
Thus, according to
sustaining powder
hit in the chest without
burns.
State,
difficult
“it would have been much more
at
gun
Rutherford to shoot himself in the chest with the muzzle of his
to achieve
away,
least 30 inches
than it would have been for Jackson
separation
and shoot.”
against
that the case
him included substantial
Jackson is correct
However, direct
required
is not
circumstantial evidence.
evidence
beyond
of a crime
doubt. We
prove
order
the elements
reasonable
may
entirely on
repeatedly
have
held a criminal conviction
be based
20,
Vukasin,
MT
317
circumstantial
evidence. State v.
2003
¶
297, 22,
Hall,
MT
(citing
Mont.
evidence. minimize testimony Janis’s Although attempts evidence. Jackson in hand at the gun Janis testified he did not see the because shots, did time of the first there was much he see. Janis testified immediately holding gun following he Jackson the first two saw shots, him, including the one that struck when he saw Jackson walking away. Deputy immediately Janis testified that Rutherford “Loren, shot, said, I’ve been I’ve been shot the heart.” Janis testified firing direction with began Deputy Jackson Rutherford’s flashes, that he the muzzle and that he gun gun saw drew his returned fire toward Jackson. Janis testified that he did not shoot Rutherford, himself or and that he did not Deputy believe accidentally Janis, that it Rutherford shot himself or but was Jackson they trying who had done so while to apprehend were him. resting entirely Jackson construes the case State’s as on Merseal, testimony. Citing
Janis’s testimony Jackson this contends alone was insufficient to convict him. argues applies that Merseal because Janis “admitted he never actually saw how he was wounded how Rutherford was shot.” or However, misapplies holding our in Merseal. Merseal, jury In convicted the defendant attempted assault allegedly lunging for a weapon causing his vehicle and
reasonable apprehension
passenger,
or fear in the defendant’s
a law
enforcement officer. At
the State failed to present any evidence
placed
defendant’s
conduct
the officer in reasonable
fear,
apprehension
required statutory
element of
proof.
could
inferred the
apprehension
have
officer’s
from circumstantial
testimony,
testimony
and the
did
support
not
such an inference. The
officer
that he thought
gun,
testified
the defendant had a
he
but
never
saw one
his actions indicated that he was not concerned
about
Merseal,
413-17,
presence
gun.
evidence was consistent with description Janis’s of the events in the night. field that Several witnesses testified that three men were in the field at the time of the shooting, the two and deputies Jackson. hearing Numerous witnesses testified about at gunshots different dark, It intervals. was the events transpired quickly, consistent timing Physical with the of Janis’s radio transmissions. evidence Deputy corroborated Janis’s account Rutherford Jackson in a engaged physical Deputy confrontation: Rutherford had bite from on body; shirt; marks Jackson his Deputy Jackson lost his hat; Rutherford lost there a was mixture of blood from both
Jackson and Deputy Rutherford in the area close where the contact occurred; further, confrontation gained Jackson of Deputy control flashlight. Rutherford’s The State’s crime scene reconstruction testimony corroborated Janis’s of the directions he and Jackson took they gunfire. when exchanged While Jackson did test positive for gun residue, shot presented the State evidence that blood and on prevented sweat Jackson’s hands proper administration of the gun residue test. State presented expert testimony that Deputy Rutherford could not have necessary obtained the distance to shoot leaving gun himself without powder residue on his shirt. jury’s [1] We conclude that “inherently verdict was not
impossible” and that there was sufficient evidence presented, when light in a prosecution, viewed most favorable to a rational to find all of the essential elements of both the deliberate homicide charge attempted charge beyond deliberate homicide a doubt. reasonable State’s due violated process 2. Was Jackson’s at trial? evidence DNA
presentation statement, a prosecutor claimed DNA opening In her Deputy taken analysis from a swab from testify “that DNA would defendant, Laurence weapon cannot exclude the Rutherford’s service Brown, Jackson, Stacey the State’s DNA Dean as contributor.” analysis, items for DNA analyzed forty-three she expert, testified that the four known samples taken from comparing each item DNA (the Rutherford, Janis, Jackson, and Gone participants: night shooting). had earlier on the bitten passenger 051A, trigger sample taken from the side of the Regarding item blood revolver, jury: Brown told the area of Rutherford’s service I than could It a mixture of from more one individual. was DNA Larry being genetic as to the contributor not eliminate item, I on that could not draw material detected Rutherford’s to Loren Janis’s and/or Joshua conclusions as item, on that genetic material detected contribution however, being a I able to eliminate William Gone as *10 contributor to that mixture. clarification, Brown, 051A just asked prosecutor “[a]nd
The
later
area,
defendant,
you
trigger
Larry
around the
the
that
took from
Jackson,
as the
ofthat DNA?”Brown
cannot
eliminated
contributor
be
However, in closing,
prosecutor
“[t]hat is correct.”
the
responded,
have
defendant’s DNA from which
argued
jury, “[w]e
to the
also
the
guard
the
area on the
trigger
the defendant cannot be eliminated on
trigger Deputy
of
Rutherford’s firearm. There is no reason
side of the
firearm,
that his DNA should be on that
none whatsoever.”
the
the
presented
Jackson claims the manner which
State
DNA
right
process.
related
item 051A violated his
to due
He
evidence
to
a
used
argues
Fallacy,”
State committed the “Prosecutor’s
term
to
the
confusing
probability”
a
act of
“source
with
prosecutor’s
describe
words,
match
In
the
probability.”1
“random
other
Jackson contends
1
(9th
Farwell,
2008),
In Brown v.
F.3d
Cir.
the Ninth Circuit
Fallacy”:
provided
following explanation of the “Prosecutor’s
the
fallacy
testimony
prosecutor
prosecutor’s
when the
elicits
that
The
occurs
way,
probability.
probability
Put
a
confuses source
with random match
another
“presents
suggest
prosecutor
evidence indicates the likelihood of
the evidence
[DNA]
he
evidence to
that the
errs when
statistical
guilt
the
rather than the odds of
defendant's
Shonubi,
randomly
sample.”
having
v.
been found in a
selected
U.S.
1995)
(E.D.N.Y.
(internal
quotation
Supp.
citation
marks and
895 F.
omitted),
(2d
1997);
grounds,
other
fact in the admission and use of DNA evidence on statement, numerous during occasions the trial. In his opening defense Stacey counsel told the expert, Brown, State’s DNA Jackson, “could not eliminate Mr. and all the results were Janis’s, inconclusive as to whether it Josh and, Rutherfords or Mr. result, anyone as she couldn’t put in and put anyone she couldn’t out.” Jackson later called his own expert, Kay Sweeney, who, DNA Brown, rather than contradict clarified that he understood Brown’s analysis characterization of the sample DNA from 051A to be that the DNA “could come have from Jackson.... That Mr. Jackson could not be eliminated.” When asked whether DNA analysis Brown’s meant that definitely Jackson’s blood was on Deputy mixture Rutherford’s gun, stated, Sweeney “[ajbsolutely Sweeney agreed, not.” in front of jury, ability part “there was not on the of Ms. Brown to Jackson, include or exclude Mr. Mr. Rutherford and Mr. Janis from *11 10,000 ... evidence establishes that there is a one in chance of a random match. jury might equate probability by believing this likelihood with source that 10,000 evidentiary sample there is a one in chance that the did not come from the equation probability probability defendant. This of match random with source is prosecutor’s fallacy.”); Lempert, Concerning known as the Richard Some Caveats (1991). Evidence, 303, 305-06 DNA as Criminal 13 Cardozo L. Rev. Identification 76 smear[.]”
that testimony to the Brown’s closing Jackson reiterated argument, In
jury: by here they that want to talk about is of
The area
blood
said, well,
Brown,
her
that
Stacey
when I asked
about
and
guard,
then, you
that,
about
and
really
any
draw
conclusions
you can’t
confused,
I’m
I
know,
got
this
about
we later
into
discussion
excluded,
and
can’t
mean,
but Josh Rutherford
Janis
he can’t be
No, just
no
means
Doesn’t that mean
conclusions?
be eliminated.
....
Larry
can’t be excluded
that
Jackson
that,
if
to review this
alternatively argues
even we were
The State
comments
arguments
violated
issue,
prosecutor’s
none of the
rights by shifting
proof
the burden of
due process
through
expert,
evidence
presented
The State
DNA
Defendant.
upon
rebut or cast
called his own DNA
to
doubt
permitted,
Jackson was
argues
evidence. The State
that
State’s
to
advantage
every opportunity,
significance
attack
indeed took
thus, “it not true
throughout
evidence
is
sample
051A
uncontested
the defense or
evidence went to the
such
at trial.”
fundamental unfairness
contributed
may
only those issues
party
generally
direct
raise
appeal,
On
West,
338, 16,
State
2008 MT
346
properly preserved.
and claims
v.
¶
76;
Blanket,
244, 194
Spotted
(citing Rosling,
P.3d 683
¶
Mont.
59,
13,
126,
properly
288 Mont.
955 P.2d
“To
1998 MT
¶
appeal,
necessary
or claim for
it is
the issue or
preserve an issue
West,
in
timely raised
the first instance
the trial court.”
¶
claim be
46-20-104(2),
Buck,
117,
MCA;
81,MT
331
(citing
State v.
2006
¶
§
26,
517,
53;
Paoni,
16,
2006 MT
Mont.
134 P.3d
State v.
¶
Mont.
148,
195, 20,
1040;
T.E.,
In re
2002 MT
¶
38). Thus,
timely object during
trial constitutes a waiver
P.3d
failure
Vandersloot,
46-20-104(2), MCA;
objection.
Section
jurisdictional or
MT
Mont.
errors timely object did rights,” even if the defendant constitutional
77 court, notwithstanding applicability of the criteria set trial and 46-20-701(2), West, Finley, (quoting MCA. 23 State v. 276 forth ¶ 126, 134-37, (1996), part on Mont. 915 P.2d 213-15 overruled in 39, 21, 215, 19 MT grounds, Gallagher, 2001 304 Mont. other ¶ 817). “sparingly,” only P.3d We invoke the error doctrine where plain “may in a failure to review the claimed error result manifest miscarriage justice, may question leave unsettled the of the may fundamental the trial or or proceedings, compromise fairness of West, integrity judicial process.” (quoting Finley, of the 276 ¶ 137-38, 915 215; Daniels, at citing Mont. P.2d at 2003 MT 77). 224; Rosling, ¶ object Jackson concedes did not at he trial to State’s use of evidence, argues object DNA but first that his failure to should be request excused because the District Court denied his for funds to DNA, analyze that, particularly sample 051A. Jackson contends expert, he for a request when “asked DNA the trial court approved only $1,500.00, but allocated an insufficient amount.” Jackson’s characterization of the record is The simply incorrect. District Court trial, approved including substantial defense costs for Jackson’s DNA testing analysis. and forensic The Court granted every request District Jackson regarding expert Kay Sweeney, made his forensic approving $21,100.00 approximately fees.2 The District Court moreover granted $8,065.00 request Jackson’s for for testing by additional DNA Forensic Analytical Finally, request, labs. at Jackson’s the District approved $1,500.00 Court re-testing additional for blood five samples the State had one prior tested month to trial. had filed motion in limine exclude five at samples given testing, alternatively late sought additional perform funds to testing own on these samples. District Court the State permitted to use the trial samples five at after the State demonstrated it acted due diligence, granted with and request Jackson’s for more funds. Importantly, request Jackson’s the additional funds to perform testing A, additional DNA to sample related 051 which he challenges appeal. challenged on Jackson has not the District Court’s ruling limine, on the motion in or the admission of the DNA evidence samples. argument from those Accordingly, entirely five Jackson’s is without merit. urges “[t]he then this Court find that use Fallacy, it objected to,
Prosecutor’s
when
is not
grounds
is
for reversal
approvals,
27, 31, 92, 102, 129,
For the fee
R.
see
130 and 131.
Massey, U.S. v.
Jackson cites
support,
error review.” In
plain
on
(9th
1979)
(8th
Farwell,
F.3d 787
Cir.
Brown v.
Cir.
F.2d 676
for the
Jackson, Massey and Brown stand
According
fundamentally
Fallacy
a trial
renders
that the Prosecutor’s
proposition
law,
process
due
violating a defendant’s
a matter of
unfair as
him
entitling
thus
object,
failure to
excusing a defendant’s
reading Massey
However, Jackson’s broad
error review.
plain
supports
position.
incorrect. Neither
Brown is
robbery, based
Massey,
the defendant of bank
convicted
In
during
a ski mask used
analysis of hairs found on
largely on the
*13
microscopic
a
testified that
expert,
who
provided
heist. The State
mask
in the ski
samples
hair
found
three
five
comparison
district court for
When
the
pressed
the defendant’s hair.
matched
similarity
hair
the
ofone individual’s
probability regarding
a statistical
he
not
another,
provide
that
could
expert
the
cautioned
different
had
seen two
experience
but
in his
probability,
distinguish between. From that
hair he could not
individuals whose
analysis
the
jury
the
hair
testimony,
argued
the
prosecutor
defendant,
accuracy
establishing
the
was sufficient
convict
alone
Massey,
F.2d at
percent.”
than 99.44
594
at “better
identification
determined that the statistical
appeal,
Eighth
On
Circuit
679-81.
foundation,
speculative and
testimony lacked
was
probability
in
of the weakness of the other
confusing,
light
and was
harmless
Notably, the
Massey,
not rest the DNA evidence. the State did not provide probabilities, plainly with false thus did not commit the is true Fallacy.” prosecutor classic “Prosecutor’s It that the briefly misspoke during closing stating her when argument “[w]ealso have defendant’s DNA from which the defendant cannot be eliminated trigger on area guard .... There is no reason that his firearm, DNA should be on that none This is partially whatsoever.” correct, and contradictory. it correct While was that the defendant contributor, could not be eliminated as a appropriate it was not to refer sample However, first, as “the defendant’s DNA.” this statement Fallacy, is not the Prosecutor’s which confuses random match Second, source probability probability. with this a solitary incorrect reference within trial in which both correctly sides explained the DNA evidence numerous times. The State’s witnesses repeatedly explained that Jackson “could merely not be eliminated” as sample. prosecutor gave contributor to the a full and correct explanation of the DNA closing. evidence her Jackson repeatedly exploited inability the State’s to positively identify him with DNA evidence, evidence. never objected to the DNA thoroughly cross-examined the State’s expert, qualified DNA State’s evidence *14 with his own expert, argued to the the State’s did no probability calculations and could not any draw conclusions regarding the sample. blood presented The State substantial evidence that Jackson fired
the Deputy Janis, shots that killed Rutherford and wounded in addition to the DNA evidence. The DNA evidence was correctly explained throughout numerous times the trial. We cannot conclude brief, the incorrect reference to the DNA made by evidence the prosecutor closing, during again object, to which Jackson did not had on trial effect this and thus implicated Jackson’s fundamental or rights integrity constitutional compromised judicial of process. Accordingly, we conclude that Jackson has failed make the requisite threshold showing plain error review of this claim is appropriate. by denying 3. Did the District Court err Jackson’s motion withholding alleged the State’s upon trial based a new of for to due Jackson’s in violation exculpatory of information
process? may guilty, grant the court finding of “Following a verdict justice.” of Section 46- in the interest required trial if defendant new of motion for a or denial new 16-702(1), Generally, grant MCA. We review the of district court. the sound discretion trial is within discretion; trial for an abuse or denial a new grant district court’s clear findings are reviewed for however, the court’s factual district 18, 39, Mont. Clark, MT v. ¶¶ error. State regarding constitutional Finally, questions review of this Court’s 1099. omitted). (citation West, 13¶ law plenary. is Brady committed a violation of argues that the State failed prosecution S. because the Maryland, 373 U.S. 83 Ct. counselor after the professional made to a to disclose statements Janis Rutherford, made statements about wherein Janis homicide of claims he did Rutherford’s death. Jackson being responsible Deputy for until a officer read Janis’s probation not know about these statements reads in relevant sentencing hearing, at the which impact victim letter part: night victims that when you you
I want to know made several you killed Josh and when shot me .... you know, me for you people Josh died several blamed Do when After hours of I to believe this. numerous Josh? started I my close friend John had informed me was not counseling, through why going He I so much be blamed. asked me I John I him of rumors and believe them. pain. told wanted yours But it my at me and told me it was not fault. is yelled at Every person [sic]. wants look someone to blame Lawrence Josh, at they good person when need to take a look blame him, is you. killed and that who begun he took before after had deposition Janis’s attorney to whom
counseling. deposition, In the Jackson’s asked Janis shooting. Janis spoken night he about the events of had individuals, initially identify did the names of several but revealed counselor, However, along his with Janis identified counselor. sheet, others, completed the correction deposition several when he sheet to gave prosecutor. he The State sent the correction which alleges Brady for the attorneys. Jackson violation upon during deposition, to correct Janis prosecutor’s failure attorneys’ correction sheet within inability trial to locate the one ofhis
81 during his file trial. these the Jackson claims failures violated his rights. constitutional 83, Brady Maryland, 1194, 373 83 Under U.S. S. Ct. the State any
must turn over
evidence that is material
to a
or
guilt
defendant’s
punishment.
Field,
181, 22, 328
MT
26, 116
State v.
2005
Mont.
P.3d
¶
(“the
46-15-322(12)(e),
813;
MCA
prosecutor shall make
available
the
all
or
defendant
examination...
material
information that tends
or
mitigate
negate
guilt
the defendant’s
as to the
charged
offense
sentence”).
potential
would tend to reduce the defendant’s
prosecutor
a continuing duty
also has
to promptly disclose
additional,
46-15-327,
discoverable evidence. Section
MCA. The State’s
properly
failure to
disclose exculpatory, material
evidence to a
is a
defendant
violation
the defendant’s Fourteenth Amendment
guarantee
regardless
prosecutor’s
of due process,
good
faith.
(1995)
307,
899,
Hatfield,
311,
P.2d
Mont.
901-02
1196-97).
(citing Brady,
87,
at
S.
U.S.
83 Ct. at
(1)
process violation,
To establish a due
the defendant must show:
evidence,
the
possessed
impeachment
evidence,
including
(2)
defense;
petitioner
possess
favorable
did not
the evidence
(3)
nor
diligence;
could he have obtained it with reasonable
(4)
prosecution suppressed
evidence;
the favorable
had
disclosed,
evidence been
a reasonable probability exists that
proceedings
outcome of the
would have been different. State v.
318,
Johnson,
497,
MT
(citing
¶
329 Mont.
on ground potentially State withheld the exculpatory counseling admissions from him. The parties issue, briefed the Brady and the District hearing Court held a on Jackson’s motion. After argument hearing testimony attorney from defense Robert prosecutor Laird, Peterson and Yvonne Court District issued a lengthy denying order the motion. The District Court found that the State had never been aware of counseling the substance sessions because the protected by conversations were the counselor-patient privilege. The court concluded that prove Jackson failed to nexus investigation between the criminal confidential mental health information anything other than a patient dealing with typical exposure trauma, reactions to violent and reasoned that the counseling Jackson, sessions were not favorable to nor would have changed the outcome of the provided trial. The State had both attorneys discovery, with the name of Janis’s counselor in counseling evidence attorneys have discovered the could
and Jackson’s *16 that ultimately concluded District Court diligence. own The upon their Brady violation. any the elements for a show of Jackson failed to trial, the Prior Janis and error. do find We not reversible ¶55 counselor, person her as a identifying the name of the State disclosed Court shooting. the District the As Janis had discussed with whom deposition correction the counselor found, the State disclosed 2004, deposition of 12, two months Janis’s May within sheet on began. contention that before the trial more than six months rejected by District sheet was the he not receive the correction did Sheehy the counsel received Court, found that defense which defense counsel Peterson was sheet and that deposition correction “[fjailure files, defense noting the sheet in his unable to find merely appropriately an file or to communicate orderly to maintain counsel diligence.” jury the The also other does not excuse lack with each felt the through guilty that Janis about heard evidence other witnesses Janis told him “he incident. Sheriff Huestis testified that shooting more,” told he Huestis the wished he could have done which Josh shot and killed.” guilty to mean Janis “felt that understood the State sum, support does Jackson’s claim that In the record not did evidence, and the District Court not abuse its exculpatory withheld denying in Jackson’s motion. discretion by authorizing the abuse its discretion 4. Did District Court during trial? leg the a non-visible restraint use of restrain a criminal review the district court’s decision to We Merrill, v. trial for an abuse of discretion. State during defendant Herrick, 10, 130, 183 (citing MT 343 Mont. P.3d 56 ¶ trial, MT Prior to the District address, other parties among the Court held conference with during trial. At matters, security the measures the courtroom the meeting, requested any prior that restraints be removed the any possible prejudice from entry prevent into the courtroom to seeing defendant shackled. Jackson’s counsel informed the jurors District Court: they
[GJenerally, County, bring a defendant who Missoula when handcuffs, and in in, they leg him in irons and custody is in have they belly have him in chains. I type probably of case this will get mean, that, believe, they I before all of needs to be removed I that creates . .. do believe Mr. Jackson off elevator because any to see that at any juror happens the defendant prejudice for if [Emphasis added.] time. agreed security The District Court measures needed be trial, security asked State to considered before formulate plan. The court stated it would discuss matter further after the In plan. request, State submitted the accord with court’s the State Plan, subsequently submitted the Draft which concluded Operations high that Jackson was a risk inmate due to the nature of his violent size, offense, age require as well as his would therefore physical during transportation. plan explained any restraints prior jury entering courtroom, restraints be removed to the would during that Jackson would brace” trial leg but wear “unobtrusive which would “hinder movement but not rapid be noticeable copy Plan, of Draft public.” Operations Jackson received and did object security leg measures brace. At District stated appeared Court on the record that Jackson had in street placed security [been] clothes and had “not type device jury.” is visible to members of the claims the District Court abused its discretion *17 use
permitting leg during the of the brace the trial first without making finding a that behavior his warranted the brace. He further leg defense, contends the brace hindered him from in assisting his and that, violated his personal dignity. Jackson admits in the District Court, objected handcuffs, leg he to the use of the belly irons and chains on the basis that the he unfairly prejudiced would be if the him, argues provide saw but he did not need objection another use of an improper restraint. To properly preserve review, issue or claim for appellate
¶60
the
defendant
timely object
must
and specify
grounds
the
for error at trial.
West,
MCA;
(citing 46-20-104(2),
Buck, 117;
Paoni,
16;
¶
§
In re
¶
¶
20).
T.E.,
appeal,
On
the defendant must
¶
establish that he made an
objection
on
at trial
the same
the
basis as
error asserted on appeal.
Davis,
Vandersloot,
23 (citing
¶
2000 MT
300 Mont.
¶
547).
458, 5 P.3d
a
“Requiring
defendant to specifically raise the
objection
gives
prosecution
at trial
the
and trial
an opportunity
court
to avoid
Vandersloot,
or correct the purported error.”
(citing
23¶
Davis,
timely object during
Failure to
¶
trial
waiver
constitutes a
the objection.
46-20-104(2), MCA;
of
Vandersloot,
Section
23.
¶
When Jackson
the
security
raised
issue about the
measures
be
implemented
trial,
at
objection
jurors might
his stated
was
the
be
prejudiced against
they
him if
belly
saw him restrained
chains and
shackles. The District Court appropriately addressed Jackson’s
by requesting
security
concern
State
a
plan
the
formulate
in advance
held a
The District Court
trial,
copy to Jackson.
provide a
of
might
any
party
either
to review
concerns
conference
pretrial status
object to
Jackson did not
security plan.
regarding
proposed
the
have
has not
hearing,
the
Jackson
leg
of
brace at
use
the
proposed
the
during
to trial or
trial
any
prior
at
time
objected
that he
demonstrated
Plan. The
Operations
the Draft
in
prescribed
of the measures
jury,
visible to the
the
was not
leg
noted that
brace
District Court
throughout
clothes
the
street
permitted
was
to wear
that Jackson
device
to wear the same
requested permission
proceedings.
proceeding.
of the
during
sentencing phase
the
in
‘acquiescence
maxim of law
is a well-established
“[I]t
”
Malloy,
to it.’
2004 MT
away
objecting
of
the
error takes
MCA).
1-3-207,
(quoting
We
377, 11,
trial? incident, scar on side night On of the Jackson obtained Parham, emergency physician Dr. who his Cameron
of abdomen. arrested, abdominal he described the examined Jackson after baton. At shape tip law enforcement injury being as Parham, Dr. completed its direct examination of after the State presence to Dr. Parham the to show scar requested grounds, safety relevancy arguing on jury. objected The State during inspect could have had Dr. Parham scar that Jackson to trial or that Jackson could have taken prior seventeen months Dr. Parham’s review at trial. court of the scar for picture demonstration, explaining: going it was not allow concluded counsel, argument weighed I’ve I’ve considered Parham, and, frankly, given by quite oath Dr. statements under has outlined the Court that procedure there is no been *18 or adequately security safety the concerns. would address by to elicit Further, you the of the evidence that intended nature security demonstration, outweigh the this its relevance does I of the the Court. am mindful safety or concerns are before later, 17 and that this of type fact we are now months in a controlled environment. could have been done examination prohibiting its discretion in the District Court abused argues the demonstration.
85
A district court has broad discretion to determine the relevance
¶65
34,
Matz,
348,
MT
admissibility
of evidence. State v.
2006
335
¶
201,
Hicks,
71, 19,
MT
(citing
Mont.
sound discretion of the district
and we will not reverse the
district court’s ruling unless it
Hocevar,
abused this discretion. State v.
157, 76,
2000 MT
300 Mont.
(citing
¶
P.3d 329
City
Massman v.
Helena,
(1989)).
234, 243,
Rebuttal
by
evidence offered
the State
proper only
is
if it tends to counteract a
defense,
new matter offered
tendency
and has a
to contradict or
disprove
Gardner,
338, 36, 318
evidence. State v.
MT
Mont.
(citations omitted).
436,
medical regarding the wounds on Janis’s arm. testified, Sweeny After the prosecution called for its medical forensic *19 claiming objected, Dale, testify in rebuttal. examiner, Dr. testifying that Dale would be notice him with provide did not the State inflicted. The were Janis’s wounds the manner which regarding witness, rebuttal appropriate an that Dr. Dale was responded prior witness him as a rebuttal they had listed given that testify that the Sweeny going to that was they not aware were and exited on the of his arm arm from the inside entered Janis’s bullet testimony of contrary to the unanimous arm, position of his outside review of Upon Janis. who had treated professionals the medical Court concluded: the District Sweeney’s pre-trial report, matters, matters not testimony raises new I find that Kay of clearly report or stated contained otherwise any to be clearly position state Sweeney. does not report That entrance or exit the location of by regarding that witness taken offer state is entitled to by [T]he Loren Janis.... wounds sustained reasonably did not know or evidence, prosecution as rebuttal testimony until to have known of such expected not have could begun. this trial has after that the State was finding, Court’s argues the District Sweeney’s testimony, was not correct because nature of
unaware of the that Janis’s wound was self- included a conclusion Sweeney’s report indicate an Sweeney5s report did not responds The State inflicted. arm, and or exited Janis’s the bullet entered opinion regarding where testify contrary to the other Sweeney would thus it was unaware opinion Dale for an they claims asked testimony. medical The State Sweeny going began, apparent trial when it became after the Janis’s arm. path through regarding an bullet’s opinion to offer State, no additional provided to the but opinion Dale explained report. written reports “all written or the State must disclose Upon request, the defendant or have examined experts personally who
statements case, the results of together with particular evidence in the tests, comparisons.” or examinations, experiments, scientific physical MCA, 46-15-322, is 46-15-322(1)(c), policy MCA. “The behind § Section Stewart, 2000 MT prevent surprise.” notice and provide omitted). (citation 22, Mont. 16 P.3d 46-15-322(1)(c), MCA, disclosure of expressly requires Section ex rel. Carkulis v. Dist. See State reports written or statements. (“We (1987) construe the 265, 271, Ct., writings or other transcriptions, tapings, to include word statements or as to his observation to memorialize the witness means used ....”). by the impression qualification preceding This is confirmed subsection, 46-15-322(l)(b), disclosure of specifically requires which by prosecution. statements of the defendant” “all written oral added.) only require The disclosure statutes therefore (Emphasis provide reports State to the defense with the written or statements experts. impracticable, impossible, require their It would be if not defense, every provided essentially statement to be every requiring recording conversation between the State and experts. Similarly, required provide summary its the State is not *20 78-79, Sol, an expert’s proposed testimony. 46-15-322(5), (1997); MCA. § witness, The State disclosed Dr. Dale as an and Jackson acknowledges he was on notice that Dr. Dale might be called requested opinion regarding gunshot rebuttal. The State Dale’s Janis’s wound after presented expert’s opinion about the path. prepare report bullet’s Dr. Dale did not a written or statement. Although argues respect the “issue with to Dr. Dale’s testimony rebuttal has to do with the State’s failure to disclose his report,” there was no such report to disclose. Jackson has failed to 46-15-322, MCA, establish a violation of or that testimony Dale’s prejudiced testified, otherwise him. Before Dr. Dale two expert witnesses had provided the same as opinion regarding entry Dale’s and exit of the bullet which caused Janis’s wounds. We conclude the District Court did not abuse its permitting discretion in testimony. Dr. Dale’s rebuttal Affirmed. LEAPHART,
JUSTICES COTTER and WARNER concur. NELSON, JUSTICE specially concurring. I concur in the Court’s following decision with the caveat. As to agree
Issue I argument Jackson waived the which he now 41,43.1 makes on appeal Opinion, for the first time. agree also ¶¶ argument we should not address his plain under error Opinion, review. However, 42. I agree do not with or concur in plain the Court’s error review which follows in 43-47. It absolutely makes no sense that we ¶¶ decline to plain review error under the error doctrine in one breath proceed and then to address and resolve the merits of the claimed so, doing error in the next. In actually plain we do the error review say review, that we are going Having plain we to do. declined error that should end the matter without further discussion of the merits of the claim of error at issue.