State v. Long, 04-066.
| Decision Date | 26 May 2005 |
| Docket Number | No. 04-066.,04-066. |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Patricia Josephine LONG, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Jon A. Oldenburg, Attorney at Law, Lewistown, Montana.
For Respondent: Hon. Mike McGrath, Attorney General; Robert Stutz, Assistant Attorney General, Helena, Montana, Thomas Meissner, Fergus County Attorney; Monte J. Boettger, Deputy County Attorney, Lewistown, Montana.
¶ 1 Patricia Long (Long) was charged by amended information with three counts of felony criminal distribution of dangerous drugs and one count of misdemeanor criminal possession of drug paraphernalia. A Fergus County jury found Long guilty of two felony counts of criminal distribution of dangerous drugs and not guilty of the remaining charges. Long appeals.
¶ 2 We restate the issues as follows:
¶ 3 1. Did the District Court err in denying Long's motion for a mistrial because during a second re-direct examination of a witness, a prejudicial statement concerning prior offenses was made before the jury?
¶ 4 2. Did the District Court err in allowing "bindles"1 that had not been tested to determine if they contained dangerous drugs to be taken into the jury room during deliberations?
¶ 5 We affirm.
¶ 6 In May 2002 Rebecca Erickson (Erickson) approached law enforcement with information about the distribution of dangerous drugs in Fergus County. This information instigated an investigation into Long's activities. In June 2002 Erickson contacted the investigating officer; this time informing him that Long had "fronted"2 one bindle of methamphetamine to her. The officer went to Erickson's residence to retrieve the bindle on June 14, 2002, and also scheduled a controlled purchase for the next day. According to the officer, the bindle retrieved from Erickson on June 14, 2002, contained a "white powdery substance in it which field tested positive for methamphetamine." This bindle was later submitted to the Montana State Crime Lab and it was confirmed that the bindle contained methamphetamine. ¶ 7 On June 15, 2002, two law enforcement officers met with Erickson. One officer searched Erickson's vehicle while the other searched her person and fitted Erickson with a monitoring device. They gave Erickson $110 to pay for the fronted bindle of drugs and instructed Erickson to purchase additional drugs if possible. Erickson then drove, monitored by law enforcement in a separate vehicle, to Long's residence. Erickson approached Long's residence and engaged in conversation with Long. The officers, who monitored the conversation via the wire worn by Erickson, could identify the voices as Erickson's and Long's. Following Erickson's interaction with Long, Erickson turned over three bindles of alleged dangerous drugs to the officers. According to Erickson the entire $110 was given to Long. Law enforcement submitted the three bindles to the Montana State Crime Lab for testing. Pursuant to office policy the crime lab only tested one of the three bindles; that bindle was found to contain methamphetamine.
¶ 8 On June 20, 2002, Erickson, again monitored by law enforcement, attempted to make another purchase. Law enforcement provided Erickson with $70 and following Erickson's interaction with Long, Erickson turned $40 and one bindle over to law enforcement. Law enforcement submitted the bindle to the Montana State Crime Lab for testing and the lab confirmed that the bindle contained methamphetamine.
¶ 9 A search warrant was obtained for Long's home. On June 21, 2002, law enforcement executed the search warrant and seized further evidence.
¶ 10 Long was charged by amended information with three counts of felony criminal distribution of dangerous drugs and one count of misdemeanor criminal possession of drug paraphernalia. A jury found Long guilty of two counts of criminal distribution of dangerous drugs, and not guilty of the third count of criminal distribution of dangerous drugs. She was also found not guilty of misdemeanor possession of drug paraphernalia.
¶ 11 Additional facts are set forth in the discussion of the issues.
¶ 12 A district court has wide discretion in determining the scope and extent of reexamination regarding matters brought out on cross-examination. State v. Veis, 1998 MT 162, ¶ 19, 289 Mont. 450, ¶ 19, 962 P.2d 1153, ¶ 19. We review the District Court's action in allowing the prosecution to re-examine its witness following its previous direct, defense's cross, the States re-direct and the defense's re-cross for abuse of discretion. See State v. Shaw (1992), 255 Mont. 298, 302-03, 843 P.2d 316, 319
.
¶ 13 A motion for a mistrial will be granted when there is either a demonstration of manifest necessity, or where the defendant has been denied a fair and impartial trial. State v. Ford (1996), 278 Mont. 353, 359-60, 926 P.2d 245, 249. We review the denial of a motion for a mistrial for abuse of discretion. State v. Scheffelman (1987), 225 Mont. 408, 411, 733 P.2d 348, 350.
¶ 14 Once properly admitted, whether particular items of physical evidence, not proscribed by statute, may be taken into the jury room during deliberations is within the sound discretion of the District Court. See State v. Christenson (1991), 250 Mont. 351, 361, 820 P.2d 1303, 1309
.
¶ 15 Did the District Court err in denying Long's motion for a mistrial because during a second re-direct examination of a witness, a prejudicial statement concerning prior offenses was made before the jury?
¶ 16 As the last witness during the State's case in chief, informant Erickson was examined by the prosecution and cross-examined by counsel for Long. Re-examination and re-cross examination were also conducted. On the conclusion of the re-cross examination the prosecutor moved the District Court for permission to again re-open the direct examination of Erickson for the stated purpose of asking questions on a subject defense counsel brought up. After inquiry by the District Court concerning why this was necessary, counsel and the District Court had a conversation off of the record at the bench. Thereafter, defense counsel objected to the further questioning. The objection was overruled and the District Court allowed the State to re-open its direct examination and granted the defense a continuing objection to further questions asked of the witness.
¶ 17 During the continued questioning of the witness Erickson, the following exchange took place:
¶ 18 The District Court took a recess. Defendant made a motion for a mistrial arguing that it was procedurally improper for the District Court to allow the State to re-open direct examination of Erickson after it had already examined her on direct and re-direct, and that allowing such examination resulted in an improper, unnoticed statement of prior bad acts. The State argues that the District Court acted within its discretion when allowing the State to reopen its re-direct, that it did not intend to elicit the improper testimony and that any error could be cured by the court's cautionary instruction to the jury.
¶ 19 The District Court had the reporter read back the witness's statement, and listened to the tape recording of the statement. The District Court found as a matter of fact that there was no prejudice to the Defendant that could not be cured by a cautionary instruction. The District Court also found that it was not the intention of either counsel or the District Court to elicit the statement that was made. Defendant's motion for a mistrial was denied. Defense counsel was given the option of asking further questions of the witness, but declined to do so. The trial was reconvened and the jury was instructed that they were to disregard the statement set forth above. The State then rested. Defendant presented no witnesses, but based her defense on the lack of credibility of the State's witnesses, including Erickson, and entrapment. The jury then retired to deliberate, and returned verdicts of guilty on two counts of criminal possession of dangerous drugs.
¶ 20 Montana Rule of Evidence 611(d) provides:
Re-examination and recall. A witness may be re-examined as to the same matters to which the witness testified only in the discretion of the court, but without exception the witness may be re-examined as to any new matter brought out during cross-examination. After the examination of the witness has been concluded by all the parties to the action, that witness may be recalled only in the discretion of the court.
¶ 21 Beyond the bare assertion that the District Court abused its discretion, Long failed to cite any authority supporting her assertion that it was an abuse of discretion to allow the prosecutor to ask further questions of...
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