State v. Bales

• Decision Date: 29 December 1999
• Docket Number: No. 97-620.,97-620.
• Citation: 994 P.2d 17,297 Mont. 402,1999 MT 334
• Parties: STATE of Montana, Plaintiff and Respondent, v. Johnnie Devoe BALES, Defendant and Appellant.
• Court: Montana Supreme Court

994 P.2d 17

1999 MT 334

297 Mont. 402

STATE of Montana, Plaintiff and Respondent, v. Johnnie Devoe BALES, Defendant and Appellant.

No. 97-620.

Supreme Court of Montana.

Submitted on Briefs March 22, 1999.

Decided December 29, 1999.

Margaret L. Borg, Public Defender Office, Missoula, for Appellant.

Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,Assistant Attorney General; Helena, Montana, Michael W. Sehestedt, Missoula County Attorney; Missoula, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Appellant Johnnie Bales (Bales) appeals from the judgment and verdict of the Fourth Judicial District Court, Missoula County.

¶ 2 We affirm.

¶ 3 We restate the issues as follows:

¶ 4 1. Whether the District Court abused its discretion in allowing the jury to hear a tape recording of a police interview with Bales during its deliberations.

¶ 5 2. Whether the State gave adequate notice of its intent to have Bales designated as a persistent felony offender.

¶ 6 3. Whether the State's seeking a persistent felony offender designation for Bales was prosecutorial misconduct.

¶ 7 4. Whether the District Court erred in concluding that Bales is a persistent felony offender.

Standard of Review

¶ 8 We review a district court's evidentiary rulings to determine whether the district court has abused its discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.

Factual and Procedural Background

¶ 9 In June, 1996 Bales and his girlfriend, Dorie Hurt (Hurt) went for a drive in his jeep. The passenger seat belt in the jeep was inoperable. Bales lost control of his jeep and it flipped on its side. Hurt was thrown out of the jeep and died at the scene of the accident. Bales' right hand was severely injured. Montana Highway Patrol Officer Burman conducted a taped interview of Bales at a hospital after the accident. Bales scored six out of a maximum of six points on an horizontal gaze nystagmus test (hereafter, HGN), which evaluates indicia of alcohol intoxication. Bales' blood alcohol content(BAC) was determined to be 0.27. A Sheriff's Deputy found a can of beer and a bottle of vodka in a paper bag in the jeep.

¶ 10 Bales was charged with one count of Negligent Homicide and one count of Operating a Vehicle Without Valid Liability Insurance in Effect. Bales entered a plea agreement in which the State agreed to recommend a ten-year suspended sentence on the Negligent Homicide charge. However, the District Court rejected the plea agreement, and Bales withdrew his guilty plea. During the jury trial that followed, in May, 1997, the State played the tape of Bales' interview with Officer Burman for the jury. At the close of the trial, and over Bales' objection, the District Court admitted the tape as an exhibit that the jury could hear during its deliberations.

¶ 11 The jury convicted Bales on both counts. The District Court determined that Bales was a persistent felony offender and sentenced him to forty years prison with twenty years suspended on the Count of Negligent Homicide and to six months in county jail on the Count of Operating a Vehicle Without Valid Liability Insurance in Effect, the time in county jail to run concurrent with his prison sentence.

Discussion

¶ 12 1. Whether the District Court abused its discretion in allowing the jury to hear a tape recording of a police interview with Bales during its deliberations.

¶ 13 Relying on United States v. Welch (7th Cir.1991), 945 F.2d 1378, the District Court admitted the tape recorded interview that Officer Burman conducted with Bales at the hospital after the accident (hereafter, the tape) as an exhibit that the jury could hear unsupervised during its deliberations. In Welch, the court held that the trial court did not abuse its discretion in allowing the jury to hear a surveillance tape recording of the defendant and a government witness.

¶ 14 Bales argues that the District Court abused its discretion in allowing the jury to hear the tape during its deliberations. Bales contends that the tape contains statements by him that are prejudicial. For example, Officer Burman can be heard advising Bales of Montana's informed consent law and Bales, in response, refusing to consent to have his blood drawn. Bales asserts that whether he consented to have his blood drawn was not an issue and that his refusal could unfairly prejudice jurors. Further, Bales argues that the tape was a "testimonial material" whose review by the jury created a danger that undue emphasis would be placed on its inculpatory contents, thereby "making less important the testimony of witnesses and other evidence produced at Mr. Bales' trial." Bales also asserts that Welch does not apply in the present case because Welch involved a surveillance tape.

¶ 15 The State responds that the tape was a demonstrative exhibit that was probative of Bales' state of mind and that it could therefore go to the jury room without restriction under § 46-16-504, MCA. The State concedes that the tape contains admissions by Bales but argues that those statements did not resolve the issue "whether Bales' negligence caused Dorie Hurt's death."

¶ 16 We initially determine whether the tape was testimonial evidence. As previously noted, the State contends that the tape was merely demonstrative evidence of Bales' extreme remorse and emotional upheaval. This argument is unpersuasive and belied by the record. We note that the State did not move for the admission of the tape for nonsubstantive purposes and that the District Court did not admit the tape for limited purposes. Moreover, the State has not suggested how the tape's evidence that Bales was extremely remorseful and distraught after the accident would further the State's case. Further, the tape contains statements by both Bales and Officer Burman concerning matters about which they also testified. For example, Bales can be heard saying that he had a few beers before the accident and that he killed his girlfriend when he tried to avoid a deer on the road. Officer Burman can be heard conducting the HGN and announcing its result. Bales and Officer Burman testified about these matters. Thus, although the tape is not a record of "[e]vidence elicited from a witness," Black's Law Dictionary 580(7th ed.1999) (defining testimonial evidence), we conclude the tape has a testimonial character.

¶ 17 We turn to § 46-16-504, MCA, which provides:

Items that may be taken into jury room. Upon retiring for deliberation, the jurors may take with them the written jury instructions read by the court, notes of the proceedings taken by themselves, and all exhibits that have been received in the cause that in the opinion of the court will be necessary.

We note that § 46-16-504, MCA, does not distinguish between demonstrative and testimonial exhibits but invites the admission of any exhibit "that in the opinion of the court will be necessary." Section 46-16-504, MCA.

¶ 18 We have previously considered the admission of testimonial evidence under § 46-16-503, MCA, which governs jury requests for information and provides in pertinent part:

After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.

Section 46-16-503(2), MCA.

¶ 19 In State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, we recognized the common law rule "against submitting testimonial materials to the jury for unsupervised and unrestricted review during deliberations." Harris, 247 Mont. at 417, 808 P.2d at 460 (quoting Chambers v. State (Wyo.1986), 726 P.2d 1269, 1276

). We concluded that § 46-16-503(2), MCA, had altered the common law rule but only "under certain limited circumstances." Harris, 247 Mont. at 417,

808 P.2d at 459. The Harris Court concluded that "[t]he kind of request contemplated by § 46-16-503(2), MCA, includes an inquiry concerning a witness's testimony as to the width of a street, the height of an object, distance, time or some other limited request, but not the entire testimony of the witness." Harris, 247 Mont. at 417,

808 P.2d at 460. Further, the Harris Court determined that before a jury begins deliberations, it should receive particular instructions regarding requests for information. Harris, 247 Mont. at 417,

808 P.2d at 460. The Court in Harris determined that the district court abused its discretion in having the entire testimony of an alleged victim read to the jury after the start of deliberations because the "reading of the testimony prejudiced defendant by placing undue emphasis on the statement of the alleged victim to the exclusion of the testimony of other witnesses." Harris, 247 Mont. at 418,

808 P.2d at 460.

¶ 20 In several other decisions, we have also recognized under § 46-16-503(2), MCA, that allowing juries to hear testimonial evidence during deliberations can unduly emphasize such evidence to the exclusion of other testimony. See State v. Mayes (1992), 251 Mont. 358, 374, 825 P.2d 1196, 1206

(concluding district court abused its discretion in allowing jury to hear tape recordings of two witnesses whose testimony was critical to state); compare State v. Evans (1993), 261 Mont. 508, 513, 862 P.2d 417, 420 (concluding district court did not abuse its discretion in denying jury request to hear testimony that concerned critical element of proof). In both Mayes and Evans, this Court emphasized the danger in allowing juries to hear evidence critical to the State's case during their deliberations.

¶ 21 The State correctly observes that this Court and other jurisdictions have allowed juries to hear tape recordings of defendants during jury deliberations. See, e.g., State v. Morse (1987), 229 Mont. 222, 233...