*1 MONTANA, STATE OF Appellee, Plaintiff and v.
BENNY ROE STEWART,
Appellant.
Defendant
No. DA 11-0254.
July 18,
Submitted on Briefs
2012.
Decided December
For General, Helena; Eileen Attorney Cochenour, Assistant Matthew T. Cox, Fivey, Attorney, Samm Kelli County Bow Joyce, Butte-Silver County Attorneys, Butte. Deputy Court. Opinion of the NELSON delivered
JUSTICE Court, County, District Silver Bow in the Second Judicial juryA¶1 now of incest. Stewart Benny of one count convicted Roe Stewart vacated and reversed and seeking have his conviction appeals, issues on following raises the case for a new trial. Stewart remanded appeal: to a new trial due law Whether is entitled Stewart recording of his monitoring and
enforcement’s warrantless daughter. his telephone with conversations admitting abused its discretion in 2. Whether the District Court Stewart took of his sexually photographs oriented which daughter.
We affirm.
BACKGROUND and Reporting The Sexual Abuse sexually molesting daughter, his convicted Stewart of A.S., years, 11 A.S. testified at trial period of from 1998 2009. over concerning began that the sexual contact when the abuse. She stated high years. She years through her school she was old and continued many there’s so each individual contact “because could not remember younger, would touch and together.” run When A.S. was older, A.S. Stewart also vagina fingers. grew her his As fondle with A.S. her and her breasts. Stewart would have touched buttocks fondled him, touch her while she was masturbate in front of and A.S. forced her to doing performed oral sex on this. Stewart old, years Stewart inserted oral sex on him. When A.S. was perform penis vagina. his into her partway During teenage years, her sexual contacts “every day.” between Stewart and A.S. occurred other Stewart told sexy A.S. she was and that he wanted her to be his own. A.S. testified that Stewart treated her more as his “lover”than as daughter. “okay” Stewart told A.S. that their sexual activities were and “normal” and that other fathers did these things sorts their resisted, If daughters. guilt, Stewart used (e.g., refusing coercion friends), spend allow her to time with manipulation (e.g., and other her) shunning refusing get speak to A.S. to have sex with him.
¶3 Stewart took ofA.S. in varying states undress and in sexually provocative poses that he orchestrated. This began around age outfits, 15. Stewart had including bikini, A.S. dress in different lingerie, some a flight attendant costume. One set of photographs, approximately number, in90 was taken in a hotel room in Salt Lake City on birthday. A.S.’s 18th pictures This collection includes of A.S. nude and close-ups vagina. of her When A.S. joined Army turned she National Guard. A.S.
initially reported the sexual sergeant. molestation to her drill She later Lester, met with Lieutenant Ed a detective with the Butte-Silver Bow Law Enforcement Department. She provided Lester with various *3 details: that the abuse had ongoing been previous years; for masturbation, it offondling, sex, consisted digital oral penetration, and penile penetration; and that Stewart had taken sexually nude and provocative photographs ofher. A.S. the stated that could be found on computers family addition, at the residence. In she advised Lester that her parents purchased her, had toys some sex for which could be found in her bedroom at the residence.
¶5 Detective Lester obtained a search warrant for the Stewart residence to the computers search, seize and toys. During the sex (A.S.’s spoke brother), Lester with J.S. older who thereafter came to the police gave station and corroborating statement A.S.’scomplaint. seizing After computers, Lester obtained a warrant to search the internal data on computers.
The Pretext Calls reported At the time A.S. enforcement, the sexual abuse law wife, Stewart and Angelina, his were out town. Detective Lester spoke making thus with A.S. about “pretext phone some calls” to phone. explained Stewart’s cell Lester pretext at trial that “[a] call is investigation. tool we use in Sometimes when we’ve been able to speak witnesses, to the victim and sometimes and sometimes we have call phone suspect and we record call
the victim recorded being does not know he’s suspect [sic] so the serendipitously - agreed A.S. to make obtaining more information.” hopes and in phone, cell Lester went to ID on Stewart’s calls. Due to the Caller listening recording and connected his and Stewart residence make the calls there. Lester then had A.S. to the landline equipment location, cell Lester did phone. than from her rather from and record surreptitiously monitor a search warrant obtain A.S. and Stewart. conversations between total, 2009. There were four place The calls took November A.S., are from Stewart to which Stewart and one three from A.S. to time, Angelina At were transit below. Stewart and summarized job, searching Stewart had been (driving) Wyoming, from where in Butte. back to their residence call, 17 minutes and 30 which lasted A.S. commenced first it phone and then handed to Stewart. Angelina answered the
seconds. outset, he had At A.S. Stewart about restrictions confronted he personal life recent threats had made imposed on her and about got the sexual “rape” her throw her out ofthe house. She then into toy” going play she to be his “little abuse and asserted that was he anymore. seemingly caught guard. off He stated that Stewart expressly brought up.” all this He did not had “no clue what molestation, to the but he did not refute acknowledge A.S.’sreferences responses vague of his Many them either. opined, Angelina present. A.S. because evasive-apparently, as why he continued demand “sexual favors” from asked Stewart responded, having stop. her told her that he would Stewart after however, uh, sincerity, “Okay, questioned that’s a done deal.” A.S. Finally, abuse. after several on with the discussion of the pressed Stewart, frustrated, this, quite gave her an sounding minutes of up “you’re me out of ultimatum: either “shut and leave alone” or house, stay He that if A.S. at the she needed there.” stated wanted reasonable, respectful, and mindful.” When A.S. asked whether to “be stuff,” “Uh, you promise quit replied, “the sexual uh, that, and I will discuss at a later date.” *4 stopping gas the first call he was at a Stewart ended because call, roughly A.S. back for the second which lasted station. He called Angelina during vehicle and 30 seconds. was outside the minutes call, minutes ofthis but it seems that she and Stewart the first several the call. At the point during their drive to Butte at some resumed outset, A.S. she was “tired ofthe sexual favors” because reiterated that body, my your body.” stated, “Okay. you “it’s it’s not Stewart Are tired it?” replied, stated, “Okay, and A.S. ‘Yes.” then Stewart it’s done. It’s simple.” briefly The conversation turned ato discussion of how trying A.S. felt that Stewart to every “control” facet of her life-personal in particular. brought and financial decisions A.S. then explain why conversation back to the abuse. She asked to Stewart he had molested her. enjoy She stated that she did not it when he “went on” her. said felt something down She she that he had taken by forcing her her to sex from have with him. Stewart remained evasive and observed behaving oddly: that A.S. was is not you.” “This again He threatened to throw her out of the if she house did not have “a smile and different frame of mind” when he got home. A.S. however, persisted, repeatedly promise asked Stewart to anymore-to point touch her audibly that Stewart became upset further, pushed and stated that if she the matter her life be straight “going abuse; to hell.” He did deny simply stated already given that he question had answer her and did not want A.S., nevertheless, to discuss the matter any further. insisted that Angelina, Stewart should reveal the abuse finally to which Stewart home, I replied, get everything “When that we talked about will be totally about, open you’re done, out and talked you’re out our lives.” appears It call dropped second either was due to bad reception hung up. A.S. called him up leaving back and ended message.
short voicemail She apologized that the conversation had “gotten out of hand” and asked him to her. call later, Sometime A.S. called Stewart again for the fourth and final call, pretext which lasted about 16 minutes. Noting that A.S. had said she “wanted everything open,” out Stewart told her that he had talking Angelina I, been uh, and that “Momknows that went down you day.” the other to speak Angelina. asked with When Angelina line, came on A.S. asked her what she thought about the things Stewart had done to A.S. response, stated, In Angelina “What you have done to him? You’vedone the thing, same over and over and over and over.... You flaunt it out in Angelina front of him.” refused to accept that Stewart had forced A.S. engage in sex with him. Angelina stated that Stewart had been merely so. “willing” do Stewart then came back on the line. A.S. asked him whether he was afraid she would tell She implied might someone. she call the police. angry Stewart became with A.S.’s eventually “threats” and stated, anybody you ‘You can tell want to tell. I regrets have no *5 out that uh, you.” pointed A.S. anything, to I done have not
you. touched that she had body, replied but he her had “violated” Stewart sex having him her with he had coerced into A.S. stated that too. When A.S. then “really up.” screwed him, that she was Stewart asserted to fun with little, seven, my it idea have asked, like “When I was up brought A.S. then responded, “Yeah.” Stewart you?” pictures ofher. he had taken nude admitted that Stewart photographs. taking molesting her accused him But when A.S. “[p]rove her to pleasure, challenged Stewart for his own photographs it!” Photographs in Limine to Exclude the
Motion incest, felony, charged with one count of The State Stewart 45-5-507, the sexual contact alleged MCA.The State of § violation January 1998 and of conduct between continuing as a course occurred mandatory seeking it be The State noted that would November 2009. age based on the difference between Stewart minimum sentence 45-5-507(4), (5), MCA. A.S. See § it trial that intended to introduce prosecution 13 The indicated before A.S., completely including those in which she was photographs filed a motion in limine sexually explicit poses. Stewart
nude or theory trial He noted that his defense at would exclude this evidence. Benny daughter lying problem his because she has be “that mother, argued Stewart Angie and her Stewart.” irrelevant because there was no evidence sexual photographs were he Alternatively, argued photos contact when the were taken. relevant, “the should be excluded because photographs even if outweighs any value that photos probative effect of these prejudicial the motion. The court’s have.” The District Court denied might reasoning will be discussed under Issue below.
Trial trial, at time A.S. testified about proceeded 14 The case which nearly 7 until she was age abuse she had endured from years of sexual many vagina “[a]s had fondled her times 19. She stated that Stewart times, had count,” had sex on her about five performed as I can oral (she oral sex on him about two times refused perform forced her occasions), penis had of his into so on other inserted head do time. A.S. testified that the contact with Stewart vagina her one sexual routine, part nightly As part” a “normal of her life. her became and, Angelina his bedroom while Stewart would have A.S. come into (as testified) him, my fingers he A.S. “stick slept next he he went to vagina I went to bed so can masturbate before before bed.” (A.S.’s brother) J.S. also testified at trial. He described Stewart’s with A.S. “a
relationship as mix between a lover and a father.” He stated that Stewart had told him fantasies about “[h]ow would like to, [A.S.], circumstances, to romance given how he would like different bang her, how he would [and] like how ... he loved it when she was nude.” J.S. it testified that was common for Stewart and toA.S. lie (from together on family nights appeared movie and that it what J.S. see) could massaged Stewart often A.S.’s breasts and crotch. J.S. stated that Stewart had shown him topless *6 nude, as well as a of photo performing A.S. sex on oral Stewart when or she was 13 14 years old. Stewart told family J.S. that this was “a thing” and “not a thing to be of’ a ashamed because lot of families do it, but that J.S. your nevertheless “[k]eep should mouth shut... and just keep it in between all of us.” Angelina suspected testified. She stated she that had “something going on” between Stewart and A.S. through years, but when
she questioned it, they them about denied it. Angelina acknowledged bed, that night, going at before to A.S. would come into the bedroom give parents hug Stewart, her a and then generally lie next to who slept naked. When anything asked whether she did protect to A.S. in situations, Angelina these put my stated: “I would hands on his private, penis. soft, his-his Sometimes it’s halfway sometimes it’s In regard calls, hard.” the pretext telephone Angelina to stated (between calls) Stewart had admitted to her the second and fourth [A.S.],” “he went down on Angelina which took to mean “[w]ent down private.” Angelina this, her upon learning testified that of she felt angry at both Stewart and A.S. She stated that she could now why understand A.S. “was all mad the time.” Agent Jimmy Weg with the Montana Division of Criminal Investigation testified regarding his of examination the computers seized from Stewart’s residence. In photographs addition to the he found, Weg history, discussed the Internet browsing which included sites such “Daddy’s as Whore.com” “FirstDaddysLesson.com-Tricky dads trusting seduces their daughters.” Weg acknowledged, however, that he identify could not operating who was computer at the times these sites were accessed. Stewart testified in his defense. He stated that he never had
sexual contact with A.S. He asserted that A.S. a had been “difficult daughter.” He theorized that had allegations A.S. fabricated the out of him, posited Stewart and J.S. anger” Angelina, toward
“extreme produce her car or “my repair to upset with him for refusal A.S. was the-for car, canceling, then along with the date repair funds to her just say fly into me and [A.S.] It to those reasons. was unusual anybody.” Stewart denied things of that didn’t make sense all kinds Angelina, He the incest websites. theorized that he had visited J.S., their own “fascination A.S. must have so out of or done sex.” Stewart characterized daughter father would take of small photos mother “family photos”-like A.S. up A.S.’s lifting photos These included Stewart child in a bathtub. buttocks, her breasts. looking licking her and of A.S. own dress and at sexually photos ofA.S. on graphic admitted that he had taken close-ups vagina, her but he claimed birthday, including her 18th no please He asserted that request at and to her. that he did so her calls, phone Stewart testified pretext incest had occurred. As for that, contact with in his he did not admit to sexual opinion, acknowledged “touching” during Although he had those conversations. A.S., the word “touch” mean Stewart stated that he did use he Angelina that that when he told “sex.” Stewart likewise testified Instead, A.S., did not mean oral sex. he “went down on” trip Alaska and to an when he and A.S. were on a referring incident drinking from too much coffee. had a bad reaction apparently she or, Stewart, guess mental state I According type A.S. “went into a fit,” term you and he used the “went say, type seizure Angelina. this [A.S.]” down on describe incident *7 pretext objection, played recordings State of the Without ¶19 argued differing telephone jury. parties calls to the The thereafter view, interpretations prosecutor’s In the Stewart the conversations. complete admitted the crime: lack of denial when implicitly “There’s ‘you him sexual pressing over and over about the favors she’s my body.’ surprise. And think the lack of There is no touched about touching daughter. his his being in voice that he’s accused of shock Stewart, conversely, completely phone these calls.” That absent from allegations: did make denials of A.S.’s emphasized that he telephone upon The State these ... recorded conversations relies they recordings ... as Even in the ... implicit admissions. Benny “I played, by there denials Stewart. haven’t touched this, I haven’t that whatever.” you. you. haven’t violated I done or recordings, you can can assess whether those are You listen to deny did They or not. contend that he implicit admissions He denied them the end. things happened. expressly these toward
511 me, anything. you. “I didn’t do I didn’t You I violate touched Of you.” touched course touched each other. But in the manner that the State contends. Not sexual contact. any with “[t]hey up
Stewart maintained haven’t come concrete Benny evidence whatsoever ofsexual contact between Stewart and his [A.S.], daughter telephone even the-even the recorded conversations.” jury person District Court instructed the that a commits the offense of incest if he knowingly has sexual intercourse with has instruction, sexual contact with a Apart descendant. from this that, District Court if beyond directed it first determined incest, reasonable doubt that Stewart had committed the offense of “[wjhether then it had to decide Defendant’s victim was under the age 16 years and the defendant 3 or was more older than the 45-5-507(4), victim.” See MCA. The court made it clear that this § separate “a finding you, independent issue of whether the guilty INCEST,” Defendant of the offense of and had to be “separately stated ultimately found, on the verdict form.” The jury on September 1, 2010, that guilty Stewart was of incest and act of sexual intercourse or sexual contact occurred when A.S. was under years of age and Stewart 3 or years more older than her.
Motion for New Trial verdict, guilty After the but 18, before the scheduled November sentencing hearing, this Court issued its in decision State v. Allen, 2010 MT 357 Mont. holding P.3d that law enforcement’s monitoring recording warrantless ofthe defendant’s cell-phone conversation violated rights under the Montana Constitution and should Allen, have been suppressed. 32-65. Based ¶¶ Allen, Stewart filed a motion for a new challenging trial telephone admission of the recordings his case. The District Court denied the motion on separate grounds. three
First, the court Angelina’s presence reasoned that in the vehicle throughout most of the any expectation conversations vitiated privacy might conversations, have had and thus there Second, had been noAllen violation. the court concluded that Detective (i.e., complied then-existing Lester had pre-Allen) caselaw and good acted in faith with respect to recording his warrantless of the calls, and exclusionary thus the rule would not have applied any Third, event. the court reasoned that error in the admission recordings was harmless. The District Court sentenced Stewart to the Montana State years, Prison for 50 with 20 years suspended. Stewart *8 appeals. now
512 OF REVIEW
STANDARDS
for new trial is reviewed
on a motion
a
court’s decision
A trial
¶23
335,
14,
147,
Mont.
discretion,
MT
327
Dunfee,
State v.
2005
¶
of
abuse
of
a
standard
217,
requires
issue
different
specific
unless the
114 P.3d
442, 167
204, 164, Mont.
P.3d
MT
338
review,
Ariegwe,
v.
2007
¶
State
to a new
is not entitled
that a defendant
815. A trial court’s decision
a
rule for the
of new
application
result of the retroactive
trial
a
law,
a
of
which is reviewed
prosecutions
question
is
ofcriminal
conduct
68,
228, 13,
243
Reichmand,
358 Mont.
2010 MT
de
v.
novo. State
de
law
reviewed
Questions
constitutional
are likewise
of
P.3d 423.
330,
269, 38,
264 P.3d
MT
362 Mont.
Kingman,
v.
2011
novo. State
evidentiary
generally
ruling
matters
Lastly,
1104.
trial court’s
however,
discretion;
the trial
to the extent
for an abuse of
reviewed
evidentiary
rule or
interpretation
on an
ruling
court’s
is based
156,
Sage,
v.
MT
statute,
novo. State
2010
ruling is reviewed de
99,
DISCUSSION due to law Is Stewart entitled to a new trial Issue ¶24 recording his monitoring warrantless enforcement’s daughter? conversations with telephone relating to the broader argue The three sub-issues parties shall address is entitled to new trial. We question ofwhether Stewart one in turn. each law change to the of a in the
A. Is Stewart entitled benefit monitoring recording applicable to the warrantless conversations? telephone matter, argument that we first address the State’s As threshold to the benefit of our decision in Allen. Several
Stewart is not entitled the warrantless electronic pre-Allen cases condoned this Court’s by law recording telephone conversations monitoring and party, the consent of one so-called “warrantless enforcement with cases). (discussing SeeAllen 35-43 these participant recording.” ¶¶ line on the recent decision overruled this of cases based Allen Court Goetz, held MT 191 P.3d v. Mont. State subject to the strictures of participant recording warrantless Allen, II, 10 and 11 of the Montana Constitution. Article Sections holding, then If is not entitled to the benefit of this 44-46. Stewart ¶f recording of the the warrantless there is no need address whether rights under Allen. at issue here violated his pretext four calls hand, acknowledges Court’s decision the State this On one *9 Reichmand, procedural essentially which involved a situation identical to After the jury guilty, Stewart’s. found Reichmand but before his sentencing scheduled hearing, this Court issued its decision in Goetz. factually legally Goetz case was similar to case: Reichmand’s both involved warrantless electronic by surveillance of the defendants means a confidential informant or undercover agent equipped with transmitting a surreptitiously device which enabled officers to monitor and record the conversations between the defendant and the informant/agent. The recordings played at Reichmand’s trial. Thus, following Goetz, the issuance of Reichmand filed to a motion set jury’s ground aside the verdict recordings on the that the been had unlawfully pursuant obtained to Goetz. The district court denied the motion, held, first, but this Court reversed. The Court raising through the issue his motion to verdict, set aside the Reichmand properly preserved Reichmand, the appellate issue for review. 8-12. ¶¶ retroactively The Court then held that Goetz applied to Reichmand’s case because Goetz a announced new rule and because Reichmand’s Reichmand, case pending on direct review. Finally, 13-15. the ¶¶ Court held that the admission recordings electronic constituted trial error this error was not harmless. The Court thus reversed Reichmand’s conviction and remanded for a new trial. Reichmand, 17-27. ¶¶ The State imposed concedes that “Allen obligation new on the that, Reichmand,
State” and pursuant to attempt “Stewart could Yet, seek relief argues under Allen.” then State that even if there here, was an Allen violation Stewart is not entitled to relief because Detective Lester acted in pr reasonable reliance on authority e-Allen when he made the recordings. words, warrantless In other the State maintains that Lester’s to comply failure with the obligation new imposed on the State by Allen should not grounds be for granting trial, new since obligation did exist when Lester monitored and recorded the conversations regard, at issue. In this State contends that on [pre-Allen] “Lester’s reliance line of cases reasonable, objectively and he his investigation good conducted faith.” The State that probable asserts apply cause existed to for a pretext that, warrant to record the law, “[h]ad calls and Allen been the Detective Lester would have obtained a warrant.” argues The State that “the entire investigation was conducted in compliance with precedent, including the computers warrants for the home and the the recordings phone conversations.” The State thus concludes that suppression evidence obtained here in violation of Allen deterring improper exclusionary purpose rule’s not serve then- under proper actions were “Lester’s
police conduct because law.” governing Lester that Detective the State’s contention supports The record warrants by obtaining search with extant law comply
made efforts
Our decision
residence,
computers, and the data thereon.
for the
suggest
that he
Lester’s efforts or
impugn
is not intended to
here
legal
rule that this
failing
comply
for
“penalized”
to be
needs
Nevertheless,
adopt
good-
yet
we cannot
announced.
Court had
so would undermine
proposes,
State
do
exception
faith
here.
apply
that the State concedes
very retroactivity principles
Reichmand, a
rule
the conduct
As
Court reaffirmed in
new
retroactively
be
to all cases
prosecutions
applied
of criminal
Reichmand,
yet
final.
14. This rule
pending
direct review not
*10
fact,
Kentucky,
v.
479
is,
by
Supreme
in
mandated
the
Court. Griffith
(1987) (“[A]
328, 107
708,
rule
the
S.
716
new
conduct
U.S.
Ct.
cases,
to
applied retroactively
to
all
state
prosecutions
of criminal
is be
final,
exception
no
federal,
yet
or not
with
pending
or
direct review
the
in which the new rule constitutes
‘clear break’ with
for cases
grounded in the
past.”).
“good
exception
of a
faith”
Application
would,
context, negate
exclusionary
deterrence
in this
purpose
rule’s
considered,
Indeed,
retroactively
argument
rule.
this
foregoing
the
537, 102
Johnson,
S.
v.
451 U.S.
Ct. 2579
rejected,
in United States
(1982). There,
government argued that new constitutional rules
only
officers
given
be
retroactive effect
where law enforcement
should
then-prevailing
act
good-faith compliance
failed to
in
with
observed, however,
Supreme
norms. The
Court
constitutional
clear, preexisting
involving simple application
because cases
all,
retroactivity
no
guidelines
questions
constitutional
raise
at
government’s
theory
automatically
“would
eliminate
all
rulings
application.”
from consideration for retroactive
[constitutional]
Likewise,
559-60,
Johnson,
S.
at 2592.
in
unreasonable searches and seizures.” Mont. art. 11. § Furthermore, right privacy, being of individual essential well-being society, of free infringed “shall not be without the showing Const, compelling of a II, state interest.” Mont. art. 10. “We § address II, II, Article conjunction Section with Article Section 11 in analyzing and resolving search or seizure issue specifically “ Goetz, implicates right privacy.” Moreover, light ‘[i]n right privacy entitled, constitutional to which Montanans are we range have held that of warrantless searches may which be lawfully conducted under Montana Constitution is narrower than the corresponding range may lawfully searches that be conducted ” (brackets pursuant Goetz, federal Fourth Amendment.’ original) (quoting 252, 35, State v. Hardaway, 2001 MT 307 Mont. (“Read 900); Allen, 36 P.3d accord together, 47¶ Sections 10 and 11 provide protection people robust against government Montana *11 intrusions.”). To determine whether search, state action constitutes an unlawful analysis:
this Court undertakes a three-part First, person we determine whether challenging the the state’s action subjective Second, has an actual expectation privacy. of we society determine whether is willing recognize subjective expectation objectively reasonable.... requirements [Ifthese two met], search, are then the police conduct subject constitutes a constitutional safeguards. We then consider the third step: whether the state action was justified by a compelling state or interest was undertaken with procedural safeguards such as a
properly issued search special warrant or other circumstances.
516 (citations omitted); accord marks Allen, quotation internal 47 ¶ Goetz, 27. of first two elements noted, that the juncture, It at this must be in concurrence Harlan’s adopted from Justice test were foregoing
the (1967), 361, 507, 516 347, 88 S. Ct. States, 389 U.S. v. United Katz search occurs when Fourth Amendment opined that a where he society subjective privacy expectation a violates government 409, 26-27, Cotterell, 2008 MT ¶¶ See State v. recognizes as reasonable. 27, States, 231, 198 254;Nyllo 533 U.S. v. United Mont. P.3d 347 32-33, 121 S. (2001). clarified, recently 2038, 2042-43 Supreme The Court Ct. test is not however, reasonable-expectation-of-privacy that Katz’s has occurred. United determining whether search “exclusive”test for (2012). 945, The Katz test Jones,_U.S._, S. 953 132 Ct. States v. Jones, diminish, other tests. See displace did augmented, but test,” trespassory (applying at “the common-law 132 S. Ct. 950-52 test, government a GPS attached rather than the Katz where it monitor defendant’s vehicle and used tracking device to the Jones, S. Ct. at streets); also 132 public movements on see vehicle’s J., concurring). the federal Constitution (Sotomayor, Since 954-55 MT rights, Ariegwe, State v. the floor of constitutional establishes 442, 815, 35, because we must 167 P.3d 338 Mont. by the United States rights the minimum established guarantee Constitution, Martinez, 65, 51, 314 v. MT Mont. State acknowledge foregoing clarification important P.3d it so, present not involve Having we note that the case does Jones. done Moreover, this is not case allegation “trespassory” of a search. trial “search” test argued the defendant an alternative which Rather, application retroactive the defendant here seeks court. decision, applied the intervening in our Allen which rule announced proceed apply We that test. accordingly Katz test. parties’ the first factor: whether dispute The crux the concerns subjective privacy telephone in his expectation had a question, parties In this focus arguing
conversations with A.S. corresponding analysis in Allen. Court concluded there our subjective cell-phone in his expectation privacy Allen had informant, Golie, the confidential several conversation with conversation was starters, For Allen did not know that the reasons. He believed being recorded; contrary, private. to the believed it phone on her using speaker-phone Golie was not function Moreover, line to listen in. party using that no third an extension recording keep the substance of evidenced Allen’s desire *12 away any prying general First, from of the public. conversation ears telephonic, entirely inaudible, since the was ofit conversation half making poorly intelligible any of the conversation substance Second, moving conversing outside listener. Allen was while with Golie, highly unlikely any glean that any it was listener could intelligible overhearing passing snippet spoken by information from Third, during background Allen. the brief intervals when voices were recording, speech audible in the Allen limited his innocuous platitudes, conveying topics no information about the that he and Golie were discussing. degree All ofthis led the Court to conclude that “[t]he of police privacy by electronically recording intrusion into Allen’s degree knowingly conversation far exceeded the to which Allen exposed public Allen, this conversation to the (passing snippets).” The distinguishable State maintains that Stewart’s case is from First, Allen. argues keep the State that Stewart did strive his but, private instead, “knowingly exposed conversations them to a third Angelina, present party, who was in the vehicle.” The State recognizes party’s presence, alone, that a third necessarily extinguish does not Allen, privacy expectation. 48-49. acknowledges The State further ¶¶ that, Allen, Angelina similar to the facts initially only heard Stewart’s half of the conversations and Stewart initially spoke in (thus general indicating terms keep aspects desire to certain private). State, however, conversation argues a distinction Allen present between and the case: whereas Allen moved about while talking Golie, it unlikely and was that listener could glean any intelligible overhearing information from a passing snippet, Angelina present majority and, for the vast of the conversations thus, “potentially ‘glean could ... intelligible information’ about the substance (ellipsis Second, of Stewart’s in original). conversations” even if expectation outset, Stewart did have an of privacy at the “relinquished State contends he any privacy expectations in the Angelina conversations when told their subsequently substance and involved her.” Stewart, conversely, maintains that he had a subjective
expectation of privacy in his conversations as evidenced the fact he, at initially, kept least “vague” answers and did not address any of A.S.’s allegations sexual misconduct “in any type specific Indeed, having terms.” listened to the recordings, which are contained record, Stewart, in the it does appear during the first call and second, ofthe parts attempts vague with his responses and evasive to reveal the content of the conversation insofar as the sexual abuse topics when such with his frankness This is contrasted
concerned. are discussed. disagreement finances, dating, and other areas "shock[ed]” she was when testified at trial that Notably, Angelina calls, he “went her, and fourth between the second told *13 had angry felt because she stated that she Angelina on” A.S. down in sexual act with engaged had a that her husband “just found out” he, claim at least Stewart’s daughter. supports This further their of in the conversations expectation privacy initially, maintained topic of sexual abuse. related to the privacy identify specific the necessary it is point, At this privacy of expectation here. Whatever
expectation at issue A.S., include, not for in with it could may have had his conversations Allen, kept that the conversations would be expectation oí the purposes excluded law enforcement’s TheAllen Court repeated. secret and never Golie, to exclude with but declined recording of Allen’s conversation during Allen had said that conversation. testimony about what Golie’s fact, the Allen, despite arguments by did 65 & n. 2. In the Court so ¶ that, logically, the concurring dissenting opinions all evidence of and Allen, (Nelson, J., suppressed. See 139-142 ¶¶ conversations should be recording the and concurring) (arguing that both specially excluded); should be testimony recording the contents of the about (“If J., in (Rice, concurring part dissenting part) in and Allen, 155 Allen, monitoring recording and ofGolie’sconversation electronic consent, really a notwithstanding prohibited constitutes search Golie’s II, Constitution, 11 Montana then under Article Sections ofthe themselves, logically correct that the conversations the Concurrence is recordings, suppressed also as fruits of a in addition to the must be search.”). means, then, for warrantless, What this unconstitutional expectation privacy of is not purposes, is that the relevant present conversations, nothing of the since in Allen strictly the content had said. testifying in court as what Stewart precluded from Rather, expectation privacy government of under Allen that making recordings of them. monitoring not the conversations (“We Allen, subjective expectation that Allen had a conclude being surreptitiously recorded that the conversation was privacy informant.”). by police a Court and the State misconstrued light, in this the District Seen for the sake of inquiry assuming, under Allen. Even appropriate Stewart’s
argument, Angelina “glean” was able to substance of A.S.-indeed, the full although he did not reveal conversations with abuse, Angelina tell between the second ultimately he did extent ofthe fourth that he day”-this [A.S.] calls “went down on the other did automatically expectation vitiate Stewart’s that the privacy telephone being by conversations “not surreptitiously recorded” government. Allen, fact, expectation 49. In that government agents would not overhear the arguably greater conversation was Stewart, vehicle, who spoke within the confines of his than it was for (a Allen, spoke public Goetz, who venue. person 29-30 ¶¶ Cf. expectation vehicle has an privacy in conversation “which cannot vehicle”). overheard public be outside the existence subjective of a expectation privacy depends unique Here, circumstances following each case. circumstances are dispositive. Stewart was in his own vehicle when he had the phone. hung conversations on his cell He up stopped when he station, gas at a maintaining might where privacy precarious. be more The vehicle moving, except during was otherwise the first few minutes of the second only call. There was other person one in the vehicle with him. person That someone knew and trusted: his wife. Stewart knew that A.S. called him using residence, the family’s landline at rather than her cell phone. There was no somebody indication that *14 listening in the house with A.S. in on the conversation. There is no party conversation, evidence that third could hear the except (and unaware). Lester, Stewart’s wife Detective ofwhom Stewart was Stewart had no reason to subjectively expect might that he exposing be his conversation to monitoring by government electronic agents. In circumstances, subjective these Stewart had a expectation not that his statements to A.S. could be repeated-as noted, never nothing Allen precluded doing A.S. from being so-but that “the conversation was not surreptitiously by police. Allen, recorded” the 49. ¶ responding trial, In to Stewart’s motion for a new prosecutor ¶41 only contested test-i.e., first factor of the three-prong whether subjective Stewart had a expectation The privacy. prosecutor did not society address second willing recognize factor-whether is that expectation privacy objectively Nor prosecutor reasonable. did the address the third factor-whether the state justified by action was a compelling state interest or was undertaken with procedural safeguards properly such as a issued search warrant or special other Allen, result, circumstances. See 47. As a ¶ the State does not attempt points to argue these for the first on appeal. time For the sake of however, thoroughness, briefly we shall address these two factors. reasonableness, objective As to ¶42 the Allen Court held society Montana) (i.e., recognize the citizens is willing as reasonable the being are not cell-phone conversations private expectation working for the by agents and recorded monitored surreptitiously at the Thus, of the conversation Allen, recording 57. Golie’s State. ¶ Allen, 61. Under this a search. ¶ enforcement constituted behest oflaw recording of the here: Lester’s reasoning, applies same conclusion searches. constituted conversations intrusion, the Allen Court governmental to the nature of the As warrant, per it is a search without police conduct
held that where the Allen, (citing exception. recognized ¶ se unreasonable absent 40). Furthermore, proving the burden of Goetz, the State carries ¶ Allen, 62. Since the requirement applies. exception to the warrant burden, held that the search carry did the Court State Allen, reach the same conclusion Again, 64. we must unreasonable. any applicable exception the has not identified here: since the State unreasonable. the search was requirement, warrant analysis, pretext we hold that the foregoing on the Based rights A.S. violated his recordings of Stewart’s conversations with II, 10 and 11 of the Montana Constitution as under Article Sections final by Court in Allen. We now turn to the third and interpreted at trial recordings the admission of the whether sub-issue: error. harmless recordings admission error? harmless
C. Was the
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“cumulative evidence” test error whether the trial was harmless. Van Kirk, 41, 43;Derbyshire, 47. If the tainted evidence was admitted ¶¶ prove offense, element of the then State must direct us proves admissible evidence that as same facts the tainted evidence and demonstrate quality that the ofthe tainted such that evidence was possibility might there was no reasonable have it contributed to the Derbyshire, conviction. ifBut the tainted evidence was not ¶¶ prove offense, admitted to an element of the then the of the admission will only evidence be deemed harmless if the State demonstrates that quality of the tainted evidence was such there was no it possibility might reasonable have contributed to the conviction. Derbyshire, 47-48, 54. ¶¶ matter, As an initial the State points parties out that the disputed
at trial recordings actually noted, what the prosecutor showed. As argued that the recordings showed implicit Stewart’s admission of guilt, while argued that they explicit showed his denial of event, guilt. supra. See In proceeds the State on the premise-with which agree-that prosecution we introduced the recordings for the purpose proving offense, i.e., the elements of the that Stewart knowingly had sexual or sexual intercourse contact with 45-5-507(1), a descendant. See MCA (defining incest); § see also 45-2-101(67), MCA (defining § “sexual contact” “touching of the sexual parts or other intimate person another, directly or through clothing, in order knowingly . purposely . . arouse or gratify sexual response Hence, or desire of either party”). the State must direct us to admissible proved evidence that the same facts as the recordings that, and show qualitatively, there is no reasonable possibility recordings might have contributed to Stewart’s Derbyshire, conviction. 54\Reichmand, ¶¶ 23. We conclude that ably the State has met this burden. First, presented with admissible evidence that
proved the same facts. testified that Stewart first touched her vagina when years she was 7 old and that he engaged in sexual contact regular with her on a basis for the 11 years. next A.S. testified that this fondling count,” included her vagina many “[a]s as I times can her, sex performing forcing perform him, oral her to oral sex on inserting penis the head of his vagina into her when she years was 9 *16 like a lover her more that Stewart treated further testified
old. A.S. testimony. J.S. also thing in his daughter. stated the same than a J.S. on oral sex photo performing of A.S. that he had seen testified that Stewart would years old and she was 13 or 14 Stewart when family nights. J.S. during movie and crotch A.S.’s breasts massage he about “how told him fantasies had further testified that Stewart had testified that Stewart Angelina bang [A.S.].” like to A.S., Angelina took to on” which to her that he “went down admitted proffered the private.” While Stewart “[w]ent down on her mean to an incident expression to refer explanation that he had used this coffee, making the he admitted A.S. suffered a bad reaction which weigh the nonetheless, jury to the up it was and statement that he told Stewart also admitted credibility explanation. of his he at trial you Although explained rape you.” “I’d than beat rather never beat that, context, that he would what he meant was you”-it again I on myself “I kill before would beat A.S.-that would explanation. Like the credibility of this up jury weigh to the the the fact evidence served establish recordings, foregoing all the Reichmand, engaged in conduct with A.S. that Stewart incestuous Cf testimony informant’s (holding the confidential ¶ the inadmissible proved, generally, the same facts as admissible did). recordings qualitative impact [recordings] might the have had As to “the fact-finder,” Derbyshire, conclude that this case we ¶ Notably, Reichmand, relies. upon from which Stewart
distinguishable analysis was “brief argument regarding prong this of the the State’s there, Reichmand, not the case here. which is unpersuasive” recordings was point, qualitative impact to the of the But more starters, only than it was here. For admissible greater much there facts as the proving Court identified as the same evidence the Chor, testimony of recordings was the proved inadmissible Reichmand, defense, 22. Reichmand’s confidential informant. motives, however, spotlight potential ulterior had turned on Chor’s inability shaky parts and his to remember capacity, mental with. The drug agents transactions or names of had worked testimony provided jurors recordings served to confirm Chor’s actual, fully objectively him: just what needed order to believe happened everything during recordings reliable alone, Court concluded that “there For these reasons transactions. influenced the outcome.” recordings ‘possibly’ no doubt Reichmand, Furthermore, the Court noted that conclusive, far recordings circumstantial evidence was from and the large chronological gaps filled in holes and in the of the testimony agents. Reichmand’s defense was that he had been as the misidentified Chor, person drugs who sold agents and Chor and the all acknowledged people that there were other in the at residence the time transactions. The Court concluded that the recordings transactions, therefore, objective “constituted and qualitatively superior compare against evidence for the testimony Chor’s *17 the of about details the transactions and his identification of Reichmand, [Reichmand] as the dealer.” Finally, 25. the recordings ¶ piece the of were sole evidence that the presented State to the jury Reichmand, during closing arguments. 26. ¶ contrast, In important distinguishing one feature recordings ¶50 ofthe present case, points out, in the as the State is that are of not the words, crime itself. In other we are dealing not here with a recording A.S., of actually engaging Stewart in incest with which unquestionably carry Furthermore, higher qualitative much effect. this not a case the recordings large where filled in chronological holes and gaps testimony. in the Significantly, witnesses’ unlike the situation in Reichmand, multiple witnesses testified at Stewart’s trial the same Indeed, recordings facts that the proved. as the argues, State the trial testimony alone provided jury the with qualitatively devastating evidence of incest. Added to photographs this were the that Stewart admittedly naked, including took of A.S. close-ups vagina.1 of her We persuaded by argument are not Stewart’s recordings the coup Qualitatively, constituted a sort of de grace. on nothing recordings any more or inflammatory prejudicial other, than the sure, admissible evidence at trial. To be recordings were reliable,” “objectively Reichmand, 24, and thus “qualitatively ¶ Reichmand, 25, superior,” in the sense that mechanical recordings (if authentic) they are generally subject are to the sorts of weaknesses inherent in human testimony, bias, such faulty as memory, faulty perception. White, 745, United States v. 401 U.S. Cf. (1971) 753, (“An 1122, 91 S. Ct. (plurality opinion) electronic recording many produce will times a more reliable rendition of what a defendant has said than memory will unaided of a police agent.”). Thus, the recordings theoretically may have “bolstered” the credibility jurors. Reichmand, of certain in Yet, witnesses the minds of the below, 2, We hold under Issue that the District did not Court abuse its discretion admitting photographs. these discussion, jurors viewed sake of assuming, for the even than the human more reliable evidence recordings as qualitatively credibility recordings served testimony, must consider whose we as Stewart would have is not clear-cut as question bolster —and recordings attempts appeal portray he us believe. While and, thus, case and the supportive of State’s inculpatory clearly argued trial and witnesses, position at opposite took State’s recordings on the responses that his statements Moreover, least, or, ambiguous. very at the actually exculpatory his impeachment during recordings purposes used the Stewart reasons, of these we conclude For all cross-examination have had on the impact might the tainted evidence “qualitative fact-finder,” Derbyshire, harmless. analysis, foregoing we hold that Stewart is Based on the Allen violation. premised a new trial on an
entitled to its discretion 2. Did the District Court abuse Issue sexually photographs which Stewart took admitting oriented daughter? it indicated before trial that intended introduce prosecution A.S., completely including those in which she was noted, filed a sexually poses. As motion explicit nude or in unduly prejudicial evidence as irrelevant and limine to exclude this 403 the Montana Rules of Evidence. under Rules *18 motion, filed his the Modified Just Rule was At the time Stewart ¶54 rule, required give to the prosecution Under that the still effect. to evidence of other written notice if it intended introduce defendant crimes, the evidence to be wrongs, specify or acts. The notice had 404(b) the admitted, purpose purposes the Rule for which specific used, why be the the evidence was evidence was to reason Matt, v. 249 Mont. purpose(s) admissible under the stated. See State Whitlow, 142-43, 52, (1991); 430, 136, 285 Mont. 814 P.2d 56 State v. (1997). 239, 246 440, 949 provided Such had not been in the P.2d notice motion, the present Consequently, responding case. Stewart’s 198, 16, Marshall, v. 2007 MT 338 Mont. prosecutor invoked State ¶ 1129, acts that 395, 165 P.3d where the Court stated that “evidence of admissible, inextricably charged are linked to the offense are Just Rule.” This is known notwithstanding criteria the Modified MCA). 26-1-103, Marshall, The (citing rule.” 16 as the “transaction ¶ § under this argued photographs that the were admissible prosecutor rule. 2010, 30, denying August an order The District Court issued limine. motion in The
Stewart’s court read Stewart’s brief to include implicit argument subject “an that the not only evidence is irrelevant procedural but also fails to meet the safeguards of modified Just regarding reasoned, rule evidence of other The crimes or acts.” court however, Rule, notwithstanding Modified Just were admissible under transaction rule because “inseparably were intertwined” charged with the The offense. court also noted that the photographs were relevant Stewart’s state mind theory the State’s groomed that Stewart had A.S. to trust accept alleged him and to their relationship. sexual The District Court did not have Eighteenth the benefit of State v. Ct., County, Jud. Dist. Gallatin Salvagni, Presiding Hon. Mike 263, 325, Judge, 415,2 2010 MT 358 Mont. 246 P.3d which this Court shortly rendered after the District Court ruling issued its on Stewart’s Salvagni, motion. In the Court overruled the Modified Just Rule and adopted in its place procedures Salvagni outlined at 49 of the ¶ opinion. say Suffice it to procedures, those coincidentally or presciently, largely prosecution followed here: the disclosed the issue; evidence at challenged defense admissibility evidence’s by of a limine; means motion in prosecutor responded to the objections; defendant’s and the trial court issued written decision. Salvagni, See 49. ¶ It unnecessary, therefore, to resolve the evidentiary issue here
by applying the Salvagni, matter, transaction rule. See 54. For that ¶ Marshall, subsequent the Court cautioned “the transaction rule permitted should not be to admit propensity evidence that would 404(b).” otherwise be Guill, excluded Rule 69, State v. 2010 MT 355 Mont. Berosik, 228 P.3d (citing ¶ State v. 2009 MT 260, 46, 776); 352 Mont. P.3d v. Sage, accord State 2010 MT 156, 36, 357 99, 235 Mont. P.3d 1284. Salvagni The Court clarified proper approach that the in resolving evidentiary challenges simply apply evidentiary rule or rules under which the challenging party argues Here, evidence should be Salvagni, excluded. challenged the photographs overly irrelevant and as prejudicial propensity evidence. *19 2This decision is sometimes referred as the “Anderson” case due the name (Shanara Anderson). underlying proceeding However, in of the defendant criminal respondent proceeding
because the named in the writ before this Court was the district judge, “Salvagni” court we shall henceforth use to refer to this decision.
526
A. 401 and 402 Rules admissible, except evidence is “[a]ll 402 relevant Rule states statute, rules, constitution, or other these provided by otherwise as Thus, photographs if the in of this state.” the courts applicable rules relevant, Rule unless some by virtue of are admissible are precludes their admission. other rule any tendency to having
Relevant evidence means evidence any consequence is of of fact that make existence probable than probable or less of the action more determination may include evidence it be without the evidence. Relevant hearsay of a witness or upon credibility bearing evidence declarant. is a “liberal” R. 401’s basic standard of relevance
M. Evid. Rule Pharms., Inc:, 579, 587, 113 v. 509 U.S. See Daubert Merrell Dow one. (1993). Ct. S. i.e., alleged that the incest occurred from 1998 The State photographs she was 18. The years
from when A.S. was 7 old when about 15 until her 18th taken from when she was of sexually in undress and in They varying show her states of birthday. orchestrated, close-ups her including of poses that Stewart provocative sexually oriented The fact that Stewart orchestrated and took vagina. it daughter “tendency” has a to make “more photographs of her. M. R. Evid. knowingly that he had sexual contact with probable” 401; 45-5-507(1), that fact and photographs MCA.The are evidence of § performed oral Notably, A.S. testified that Stewart are thus relevant. City hotel taking photographs on her after Salt Lake sex upon credibility photographs “bear[ ] of A.S. also room. witness,” well as particular, M. R. Evid. 401-A.S. in J.S. testimony. The they serve to confirm these witnesses’ Angelina-in that are relevant for this reason as well. on what argues “temporal” that there limitation case, to the fact the State relevant evidence this due constitutes 45-5-507(4), (5), (specifying sought an enhanced sentence. See MCA § years age if “the victim is under enhanced sentences victim,” if “the victim was years is 3 or more older than or offender years or years younger age the offender was 18 age older”). City Salt photographs, Stewart contends that the Lake time, “well because A.S. was 18 at the particular, are relevant factor for beyond age trigger aggravating which would however, theory, This conflates the elements sentencing purposes.” Even applicable to the sentence. pertaining facts offense *20 assuming, argument, for the sake of that photographs taken of A.S. prove when she was 18 are not relevant that engaged to Stewart in her age incest with when she was under of the a fact victim is (albeit, proved one which the State notes in its brief beyond must be a MCA) 46-1-401, doubt, goes reasonable see that sentencing. to § challenge sentence; not challenges does he his underlying incest, person beyond conviction. To convict a of prove State must marries, a person with, reasonable doubt that “the knowingly cohabits with, ancestor, has sexual intercourse or has sexual contact... with descendant, a blood, a brother or of the half any sister whole or or stepdaughter.” 45-5-507(1), or stepson Section “age” MCA.There is no here, element required and thus the State not prove to that the particular incest occurred while the victim was a in age order to obtain a Correspondingly, long conviction. so as City the Salt Lake prove were relevant to knowingly that Stewart had sexual or intercourse sexual contact with a descendant during period (1998 2009)-and, alleged already discussed, to for the they reasons purpose relevant for this State was entitled to introduce —the (unless evidence). them were excluded some other rule of It certainly possible jury that guilty find Stewart incest, engaging in but proved then find that the not State had that the incest occurred when A.S. was under thus triggering provision. enhanced-sentence why That is the District Court set these out separate questions supra. the verdict. See As it turned out, found, first, “that the knowingly Defendant had sexual [A.S.], intercourse with or sexual descendant,” and, contact with a second, “that an act of sexual intercourse or sexual contact occurred when years [A.S.] was under 16 age and the Defendant 3was or years more older than agree [A.S.].”We with the State second finding age as to A.S.’s retroactively does not render inadmissible any evidence that was prove otherwise relevant the incest occurred-such as the photographs. 404(b)
B. Rule 404(b) Rule places admission limitation on the of relevant evidence. Contrary assertion, to Stewart’s this “forbid[ rule does not ] 404(b) of propensity admission evidence.” Rule states that evidence crimes, of other wrongs, or acts prove is not admissible “to person character aof in order to show action in conformity therewith” may but be admissible for purposes, various other “such as” proof of motive, intent, opportunity, preparation, plan, knowledge, identity, or absence of mistake or accident. The rule does not bar evidence. It using of other rather, admissibility: evidence theory
prohibits, character, crimes, subjective or the defendant’s wrongs, prove acts wrongdoing (e.g., he is inclined propensity disposition, type wrongdoing) particular commit a general, or that tends to particular on a conformity character order to show conduct the inference from bad act Essentially, the rule disallows occasion. proffered other-acts Salvagni, If the person guilty person. bad inference requiring issue without “proves evidence material 404(b) its then Rule does bar disposition,” criminal the defendant’s Graham, Jr., Federal Practice Wright Alan & Kenneth W. use. Charles (Thomson 22A, 5239, Supp. Reuters Evidence vol. § & Procedure: 2012). hand, steps [in the necessary logical “if the On the other general theory admissibility] include an inference *21 prosecutor’s of used likely proof if it that the will be propensity, character or or seems inference,” applies. of support principle such an then the exclusion to Kirkpatrick, Laird C. Federal Evidence Christopher B. Mueller & 2007) (3d 1, 4:28, ed., (emphasis in Thomson/West vol. 746-47 § original). implicated. The question The is whether the rule is threshold 404(b)’s prohibition play comes underlying general Rule into
policy might tempt jury nature of the evidence decide whenever the against improper propensity the defendant on an basis. the case 1, Imwinkelried, Uncharged J. Misconduct Evidence vol. Edward 404(b) (rev. 2009). 2:15,2-87 ed., Rule applies Thomson Reuters/West § conduct, noncriminal, effectively or impugns criminal that or Imwinkelried, negatively on the defendant’s character. reflects 2:15, Leonard, 2-86; P. The Uncharged Misconduct Evidence David § 4.6, Wigmore: New Evidence Other Misconduct and Similar Events § of States, 681, 2009); (Aspen see also Huddleston v. United 485 U.S. (1988) (Rule 404(b) 685, 108 1496, 1499 “generally prohibits S. Ct. might adversely reflect introduction of evidence of extrinsic acts that Graham, character”); & Wright on the actor’s & Federal Practice 2012) (“other (Thomson 5239,282 Procedure: Reuters acts” Evidence § “any conduct, bad, good tend[s] includes or show the character involved”). Here, person the fact that Stewart took or of unquestionably tendency a photographs orchestrated the at issue has 404(b) thus impugn negatively or reflect character. Rule his implicated. 404(b) prohibits Rule the use to infer has a bad immoral character and committed incest with conformity
A.S. in with that character. Courts follow the common-law tradition almost unanimously prosecution have come to resort disallow any kind of evidence of a defendant’s evil character to establish a probability guilt. of his Not that the law invests the defendant character, presumption with a it good simply but closes the character, disposition reputation whole matter of on the prosecution’s case-in-chief. The may state not show defendant’s law, prior acts, trouble with the specific criminal or ill name neighbors, among though might even logically such facts be persuasive by propensity probable that he a perpetrator crime. The inquiry rejected is not irrelevant; because character is contrary, on the weigh it is said to too much with the and to so overpersuade them as to prejudge general one with bad deny record and opportunity him a fair against defend particular charge. Sage,
State v.
2010 MT
357 Mont.
prohibition Rather, of conduct. an ultimate inference “to draw evidence coupled ultimate inference only when that applies prohibition subjective personal, defendant’s inference of the the intermediate inference of at an ultimate prosecutor If the can arrive character. inference, prohibition different intermediate through conduct Imwinkelried, 4:1,4-5 Evidence Uncharged § Misconduct inapplicable.” example. Defendant was provides Leonard to 4-6. Professor ten homes in different take care of children in different employed to who years. of 20 None of the families over the course locations the families accused knew other. Five of employed Defendant each Charged sexually molesting a child in Defendant’s care. Defendant of cases, Defendant denies that with one of these in connection occurred, claiming all contacts with the child sexual molestation concerning uncharged molestations Evidence appropriate. charged that Defendant committed the may admissible show be committed the inference is not that Defendant molestation. The character, acts, and thus has an immoral or lecherous uncharged inference, rather, is that it is charged act. The thus committed many independent that there would be this objectively improbable cause, thus sexual molestation absent a common accusations of Leonard, Wigmore: TheNew charged act. See Defendant committed 9.4.2, Misconduct and Similar Events 607-08. § Evidence Other Here, had prosecutor argued to the that Stewart A.S., photographs citing or sexual contact with sexual intercourse photos These include piece supporting of evidence this. as one at her buttocks. Stewart had liftingup andlooking A.S.’sdress outfits, lingerie. a bikini and some including A.S. dress in different close-ups and Stewart took completely photos, nude some sexually nature of these vagina. provocative graphic her dynamic of a sexual in Stewart’s photographs establishes existence Indeed, contrary of the with A.S. characterization relationship a mother take of a “family photos”-like those typical father-daughter relationship does child in bathtub-a small sexually explicit photographs of his taking the father not involve here. The existence of this sexual daughter such as the ones at issue turn, engaged that Stewart dynamic, supports inference a permissible with A.S. This is intercourse sexual contact sexual
531 not inference is based on Stewart’s character. If Stewart was inference, a jury prohibited concerned that the would draw propensity option requesting he had the an instruction under Rule 105. See (“When Salvagni, 49; M. R. Evid. 105 evidence which is admissible . . . for . . is purpose purpose one but admissible . for another admitted, court, upon request, shall restrict the evidence to its scope accordingly.”). proper jury and instruct We conclude that the theory. purpose” admissible for valid “other 404(b). M. R. Evid.
C. Rule 403 Even where other-acts evidence is “relevant to issue other than or character the defendant’s propensity charged commit offense,” 404(b), and is thus not excluded under Rule the evidence is subject balancing still under Rule 403. B. & Jack Weinstein Margaret 2, 404.21[l][a], A. Berger, Weinstein’s Federal Evidence vol. § ed., ed., 404-64 (Joseph McLaughlin M. 2d Matthew Bender & Co. 2010). relevant, 403 “Although Rule states: may evidence be excluded probative if its substantially value is outweighed by the danger unfair prejudice, issues, confusion of the misleading jury, by or or delay, time, considerations of undue waste of presentation needless of cumulative evidence.” M. R. Evid. 403. require Rule 403 does not the exclusion of relevant evidence
simply because it is prejudicial. prosecution, In a criminal most of the evidence offered prosecution is prejudicial to the defendant. why That prove the evidence is offered: to the defendant the charged Belanus, committed crime. v. 14, 357 State 2010 MT Mont. 1021; People Karis, 1189, 1203 P.3d accord v. 758 P.2d 1988) (Cal. (all evidence which prove guilt tends to is prejudicial or case). damaging the defendant’s Rule 403 confers discretion on the trial judge exclude relevant poses danger evidence that of“unfair” prejudice, only but if danger prejudice “substantially unfair outweigh[s]” the probative evidence’s value. This occurs when the prompt evidence will to decide the case on an improper basis. Belanus, Stewart faults the District Court for providing a detailed Rule balancing in its however, order. District Court explained,
unless the challenged evidence through “clearly a motion in limine inadmissible,” ruling to as whether the evidence should be excluded foundation, left trial is “best so that issues relevance potential prejudice Stewart, can proper be resolved context.” therefore, could have objection renewed Rule 403 at District Court thereby given the during time trial and
appropriate ruling proper its “in the context.” to make opportunity *24 should Moreover, photographs that the persuaded we are not ¶70 First, motion. reasons stated Stewart’s been excluded have jury into “mislead” the City might photos that the Salt Lake argued time. with A.S. at that was sexual contact believing that there indeed after performed oral sex on her in fact Yet, A.S. testified that Stewart hence, photos risk that the there was no taking photographs; those Second, contention respect. Stewart’s would mislead any outweighs photographs] [of effect “prejudicial have” without merit. All of the they might probative value that relationship of Stewart’s sexual highly probative were photographs at trial was not A.S., use ofthe prosecution’s with and the unfairly prejudicial. District Court analysis, we hold that the foregoing Based on the
¶71 admitting photographs. its did not abuse discretion
CONCLUSION contrary recordings calls to Allen pretext of the Admission sexually admissible graphic photographs harmless. The 404(b) and were not excluded Rules under Rules 401 and Affirmed. concur. JUSTICES COTTER WHEAT BAKER, concurring. JUSTICE of the agree recordings I error in the admission of the I the District Court agree harmless. also
pretext calls was join I challenged photographs. therefore properly admitted through of the Court’s discussion of Issue One paragraphs Two. respect its to Issue all of discussion concurring joins Opinion in the of JUSTICE JUSTICE RICE BAKER.