*1
MONTANA,
STATE OF
Respondent,
Plaintiff and
LONG,
PATRICIA JOSEPHINE
Appellant.
Defendant
No. 04-066.
on Briefs October 2004.
Submitted
May 26, 2005.
Decided
130.
Mont.
JUSTICE NELSON concurred. Law,
For Appellant: Oldenburg, Attorney Jon A. at Lewistown. McGrath, Respondent: Attorney General; For Hon. Mike Stutz, General, Helena; Attorney Robert Assistant Thomas Meissner, Fergus County Attorney; Boettger, Deputy Monte J. County Attorney, Lewistown. Opinion
JUSTICE WARNER delivered the of the Court. Long (Long) Patricia amended information three counts of one felony dangerous drugs distribution A possession count of misdemeanor criminal paraphernalia. Fergus County jury Long guilty of two counts of criminal drugs remaining dangerous guilty distribution of and not Long appeals. charges. restate the issues as follows: We motion for a denying Long’s 1. Did the District Court err witness, re-direct examination of a a
mistrial because a second offenses was made concerning prior before jury? Did err in that had not the District Court “bindles”1
¶4 been tested to determine if drugs dangerous to be taken into deliberations? affirm. We
PROCEDURAL BACKGROUND (Erickson) May approached In 2002 Rebecca Erickson law information distribution of enforcement with about the Fergus County. instigated investigation This information an into In contacted the Long’s activities. June officer; informing this time him that ‘fronted” investigating methamphetamine her. The officer went to Erickson’s one bindle and also scheduled residence retrieve the bindle on June officer, purchase day. According the next controlled from Erickson on June contained a “white bindle retrieved *3 positive field tested for powdery substance which This later submitted to Montana methamphetamine.” bindle was and it the bindle contained State Crime Lab was confirmed methamphetamine. 15, 2002, enforcement officers met with On June two law
¶7 while the other One officer searched Erickson’s vehicle Erickson. a monitoring her and fitted Erickson with device. person searched drugs of They pay to for the fronted bindle gave $110 Erickson Erickson drugs possible. if purchase instructed Erickson additional vehicle, drove, in a by separate then law enforcement monitored engaged approached Long’s residence and Long’s residence. Erickson officers, Long. The who monitored the with conversation identify Erickson, could the voices the wire worn conversation via Long’s. Long, interaction with Following Erickson’s Erickson’s and powdered piece paper material onto which a A “bindle” is a of or similar placed that it encloses the substance. is and the material folded so substance payment fronting is means that the item is now In this context expected later. alleged drugs dangerous turned three bindles of Erickson over given Long. to Erickson the entire Law According $110 officers. the three to the Montana State Crime enforcement submitted bindles for to office the crime lab tested one testing. policy Pursuant Lab bindles; three found to contain bindle methamphetamine. enforcement, 20,2002, Erickson, On monitored law again June
attempted another purchase. provided to make Law enforcement and following Long, Erickson with Erickson’s interaction with $70 turned and one over to bindle law enforcement. Law $40 Crime enforcement submitted bindle to Montana State Lab for testing and the lab confirmed the bindle methamphetamine. 21, A Long’s search On warrant obtained home. June
2002, law enforcement executed the search warrant and seized further evidence. amended information three counts of dangerous distribution of and one count of possession
misdemeanor criminal paraphernalia. A Long guilty of counts of dangerous two criminal distribution of drugs, not guilty of the third count of criminal distribution of She drugs. guilty was also found not possession misdemeanor drug paraphernalia. Additional are set facts forth in discussion of the issues.
STANDARD OF REVIEW A has determining district court wide discretion in the scope regarding brought and extent of reexamination matters out on Veis, 450, cross-examination. State ¶ ¶ 962 P.2d 19. We review District Court’s action in ¶ prosecution following its re-examine witness its direct, cross, previous defense’s the State’s re-direct and the defense’s re-cross for abuse of discretion. See State v. Shaw 298, 302-03, A granted motion for mistrial will when there is either a necessity,
demonstration of manifest or where the defendant has been *4 (1996), impartial a denied fair and trial. State v. Ford 278 Mont. 926 P.2d 249. the denial a motion for a We review (1987), for mistrial abuse of discretion. State Scheffelman 408, 411, 733 P.2d 350. admitted, particular physical Once items of properly statute,
evidence, taken the proscribed by into is within the sound discretion of the District during deliberations Court. See State v. Christenson
1303,
DISCUSSION ISSUE denying Long’s motion for a Did the District Court err a second re-direct examination a mistrial because witness, concerning prior offenses was jury? made before the chief, case in informant As last witness State’s
¶16 Erickson was prosecution examined and cross-examined Re-examination Long. for and re-cross examination were also counsel On the conclusion of the re-cross examination the conducted. again re-open permission moved for prosecutor asking purpose the direct examination the stated up. counsel After questions subject brought inquiry on a defense why necessary, counsel and the concerning District Court had a off of the record at bench. District Court conversation Thereafter, objected questioning. to the further defense counsel to re- objection and the District Court allowed the State was overruled granted continuing its direct examination and the defense a open questions asked of the witness. objection further Erickson, During continued of the witness questioning ¶17 following place: took exchange (for
[By Perry, prosecution)] Ms. Q. you And did discuss on occasion ever May Defendant before 23rd? Yes.
A. Q. tell ofthose conversations? you just And could us substance Honor, I counsel]: believe it asks for Oldenburg [defense Mr. Your hearsay, object I that basis. Honor, ofthe Defendant. Your it will be the statements Perry:
Ms. I an exception. believe that’s you gist of the discussions without
The Court: Can tell us said? reiterating what Defendant really say I that without know how Witness Erickson: don’t put really know how my I don’t referring to written statement. - sentences, I don’t say it but saying -1 can in two that without exactly. know how to word *5 know, you somebody
The a stab at it. I let will Court: Make will you let know..... All that right. with-by
Witness Just law enforcement Erickson: just picking basically on her she doesn’t sell children and that’s- Honor, I Objection,
Mr. Your Honor. Your would like Oldenburg: jury. to make a motion outside the of the presence The took a Defendant a motion for District Court recess. made it arguing procedurally mistrial that was for the District improper State to direct of re-open Court allow the examination re-direct, it had examined direct already after her on that allowing such in an improper, examination resulted unnoticed argues statement of acts. The District prior bad State that the Court allowing reopen acted within its when discretion State to its re- direct, that it improper testimony did not intend to elicit the and that any error instruction by cautionary could be cured the court’s to the jury. The reporter District Court had the read back witness’s
statement, and tape recording listened to the of the statement. The Court as a prejudice District matter of fact that there nowas Defendant that could not be a cautionary cured instruction. The Court District also found that it was not the either intention of counsel or the District elicit the statement that was made. Defendant’s for a motion mistrial was denied. Defense counsel was given option asking questions witness, of further of the but declined to trial do so. The and the reconvened instructed disregard were to the statement set forth The State above. witnesses, presented then rested. Defendant her no but based defense credibility the lack witnesses, Erickson, of the including State’s entrapment. deliberate, then retired to and returned guilty verdicts of on two possession counts drugs. 611(d) provides: Montana Rule of Evidence re-examined may
Re-examination recall. A witness be as to only the same to which matters the witness testified in the court, exception may discretion of the but witness without be any brought re-examined as to new matter out cross- examination. After the examination of the has witness been action, parties concluded all that witness recalled discretion of the court. Beyond the bare assertion that District Court abused its
discretion, authority Long supporting failed to cite her assertion further prosecutor an abuse of discretion to allow to ask questions facts, of the witness. Under these the State within the discretion of the reopen its re-direct examination was Court, and discretion is shown. no abuse in not her argues granting next that the District Court erred she motion for a mistrial based on witness Erickson’s statement comment constitutes Long argues “doesn’t sell to children.” crimes, no notice as prior improper evidence of and was MCA; (1979), §46-13-109, required by v. Just State v. Matt 963-64 modified *6 52, Mont. 814 56. P.2d modified rule admission of evidence of other The Just allows
crimes, 404(b), M.R.Evid., the wrongs, only upon or under acts Rule One such procedural protections. procedural observation of certain notify whereby must protection requirement prosecution is a notice the Matt, 142- use 249 Mont. at the defense of its intent to such evidence. and 43, provided at 56. claims no notice here 814 P.2d a upon therefore she is entitled to mistrial based the witness’s and The the comments were unsolicited argues statement. State provide required. the notice unintended thus could possibility a exists appropriate A mistrial is when reasonable to conviction. that inadmissable evidence have contributed 14, 941, 282, 14, 174, Brady, 13 P.3d State v. 2000 302 Mont. ¶ ¶ 14. ¶ strength against together evidence the defendant with influence of the evidence and whether inadmissible any prejudice must be cautionary, jury
a instruction could cure determining prohibited considered a denied, to A mistrial should be contributed the conviction. however, that do not affect for technical errors or defects to record is rights of the defendant sufficient substantial guilt. omitted]. citations [Internal the defendant’s establish Brady, v. ¶ Court in State analogous here to those before this The facts are Brush, (1987), 247, 1333. In the defendant Brush 228 Mont. 741 P.2d The counts were multiple with counts of sexual assault. his trial, testified as to trial. At the on count one an officer severed for his conversations charges specifically into the investigation two. The officer responded of the severed count alleged an victim the defendant children had indicated that asserting that one of the 245 parts. ‘both of them” in their The defense private tried touch sustained, objected, objection court directed any other disregard testimony concerning any alleged offense. At arguing the close of the State’s case the defense moved a mistrial prior that these comments were evidence of crimes and violated the attorney give county modified Just rule because the failed to notice. finding testimony The trial court denied this motion that the officer’s Brush, county had not been out purposely attorney. drawn 228 249-51, 741 appeal stating: Mont. at P.2d at 1334-36. On we affirmed see a applies county We fail to how Just case where the attorney never intended to introduce evidence of defendant’s testimony other crimes where was an unintentional response non-suggestive question Therefore, as occurred here. we required conclude that no Just notice under these circumstances.
Brush, 250, at P.2d Mont. at 1335. We also noted general judge rule is that where the trial or strikes withdraws improper testimony from the record with an accompanying cautionary jury, instruction error committed its introduction is Brush, presumed 1335; Mont. cured. at 741 P.2d at State v. (1986), 375-76, 1308; Smith 220 Mont. State v. 334, 345, 599 368, 374. Further, Freeman P.2d as we Freeman, presumed ignore discussed cannot be their duties to the instructions of respect the court and to decide a case Freeman, upon based evidence admitted. at P.2d at 374-75. *7 Like Brush, the District Court in here the found it the was not intent of counsel nor of the to elicit court the Further, Brush, statement complained procedural protections of. as in safeguard right were followed to defendant’s to a fair the trial: defense objected and to presence jury, moved make a motion outside the of the the court entertained the and finding defense’s motion denied it a curative instruction suffice prejudice, would to cure and the court so the jury disregard by instructed to the last statement made the witness. position the trial is in Because court the best to observe the
jurors questionable and determine the effect of it is testimony, rulings Brush, a latitude in prejudicial of discretion its evidence. Any at 228 Mont. at effect the by cautionary have had promptly cured court’s Brush, 253, 741 at jury. instructions to the See P.2d at 1336. 246 conclude, case, judge on the record of that the trial did
We based denying not his in the Defendant’s motion for a abuse discretion mistrial.
ISSUE 2 had the District Court err Did ‘bindles” if they dangerous not to determine been tested drugs jury during into the deliberations? to be taken room on three counts of Long was tried distribution possession of and one count ofmisdemeanor criminal bindles, three paraphernalia. State’s Exhibit 1 contained and contents of one bindle been tested the State Crime Lab methamphetamine, testing contain and no had been done on The admitted the contents of the other two. entire exhibit was into evidence, At jury during and was viewed trial. evidence, objected3 1 into the Long going conclusion of Exhibit jury room, objected allowing the two untested bindles especially defense jury during given by into the room deliberations. The reason could objection jury experiment counsel for the was that exhibit, untested bindles contained speculate not methamphetamine, they and thus should have available. they if Judge parties The District asked counsel for both were being any precedent prohibit aware which would the Exhibit from deliberations, forthcoming. jury in the room and none was The judge objection and allowed exhibit be delivered overruled jury follows: jury. to the The Court also instructed the as paper three You are that State’s Exhibit 1 contains instructed analyzed one or bindles. contents of of the bindles alleged Lab to contain by the Montana State Crime tested to the speculate You shall not contents methamphetamine. not tested nor the other two bindles’ contents as were by Montana State Crime Lab. analyzed squarely we have never addressed the issue ofwhether Although in the dangerous drugs should be allowed allegedly containing exhibits room, jury physical to examine permitting we have noted that testimony only permissible ‘is conjunction with trial evidence enlightened.” Thompson but going object did not Exhibits Exhibit tested and 3 each contained one bindle. Each deliberations. Exhibit 2 *8 methamphetamine. State Crime Lab and was found to contain Montana 1115, 1120.
P.2d Long on untested again argues appeal allowing that bindles jury juror experiments speculation lead to in the room could and about drugs. the untested bindles contained further for on argues, appeal, the first time that because the District Court did expressly find that the evidence of physical the three bindles was on, necessary jury comply for the it failed to deliberate with §46-16- 504, MCA, therefore, were allowed in the improperly items jury room. Conversely, argues charge that criminal distribution supported bindles, the tested bindles untested evidence, physical supported paraphernalia
addition to other charge. Further, argued the State that the District Court’s discussion allowing with counsel and ultimate ruling jury the materials into the complied 46-16-504, MCA, cautionary the court’s § any prejudice instruction cured to the defendant. 46-16-504, MCA, Section provides:
Upon retiring deliberation, jurors may for take with them the written jury court, instructions read notes of the themselves, proceedings taken and all exhibits have been received as evidence that in the opinion cause the court necessary. will be Here, though even Judge requested authority on the §46-16-504, MCA,
point, It not called his attention. would be discretionary unfair the District Court to reverse decision on a point argued law that was not raised the first time on Industries, 145, See appeal. Easley, 15, Inc. v. ¶ Unified general Mont. 15 (stating “[t]he rule in ¶ ¶ Montana is that will not address either an issue raised for appeal party’s change theory. the first time on or a in legal The basis general for the is that it fundamentally rule is unfair to fault the trial failing court for to rule an issue correctly it was never consider”). opportunity to Further, authority Long directs us to no in which we have ever
required that the District Court an express finding make that a exhibit, evidence, particular has been is necessary which admitted into before that evidence in the room during to be its deliberations. We conclude the District Court’s careful consideration of this issue cautionary complied and its instruction with the §46-16-504, requirements of MCA. jurors trial. The viewed entire exhibit speculate were not to the untested
were instructed that *9 sale of dangerous drugs. bindles dangerous drugs, proven and one of contain such. bindles methamphetamine fact that was in one of the Long did not contest the Rather, her deputies. Erickson delivered to the Sheriffs bindles that credibility of witnesses and defenses an attack on the State’s were Long could entrapment. Under these circumstances we fail to see how by allowing trial untested bindles to be have been denied fair deliberations. taken into room in did its discretion The District Court not abuse 1 into the deliberations. entire State’s Exhibit We affirm. GRAY, COTTER LEAPHART CHIEF JUSTICE JUSTICES concur.
JUSTICE NELSON concurs. I Opinion concur our with one caveat. as to Here, largely the two untested bindles were irrelevant charges. accomplished one bindle the same Distributing distribution said, I that it distributing suggest suspends result three. That expect jurors, presented of with three laws human nature bindles, only tested, speculate similar one of which was will dangerous drugs as well-an instruction to the other two contain contrary notwithstanding. Any admitting error in the untested bindles here, however, was harmless. applied of case not be My is that the rationale concern quantity quality or certain charges
cases where the involve a certain §45-9-102, MCA, drug. example, possessing For under of a (§45-9-102(2), marijuana or hashish quantity more than a certain MCA). MCA) (§45-9-102(5), In can turn a into a misdemeanor each cases, actually I test unit require those would cases, charge. In those use prove that will used to the more serious affect the outcome drugs may prejudicially units of the untested well case. caveat, I With that concur.