State v. Bar-Jonah

• Decision Date: 07 December 2004
• Docket Number: No. 02-769,02-769
• Citation: 2004 MT 344,102 P.3d 1229
• Parties: STATE OF MONTANA, Plaintiff and Respondent, v. NATHANIEL BAR-JONAH, Defendant and Appellant.
• Court: Montana Supreme Court

2004 MT 344

102 P.3d 1229

STATE OF MONTANA, Plaintiff and Respondent, v. NATHANIEL BAR-JONAH, Defendant and Appellant.

No. 02-769

Supreme Court of Montana.

Submitted on Briefs: July 28, 2004

Decided: December 7, 2004

For Appellant: Gregory Jackson, Jackson Law Firm, Helena, Montana, Don Vernay, Attorney at Law, Rio Rancho, New Mexico.

For Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena, Montana. Brant S. Light, Cascade County Attorney, Great Falls, Montana.

Justice John Warner delivered the Opinion of the Court.

¶ 1 Nathaniel Bar-Jonah ("Bar-Jonah") appeals from a judgment and sentence entered on May 23, 2002, in the District Court for the Eighth Judicial District, Cascade County, convicting him of the offenses of Aggravated Kidnaping, Sexual Assault and Assault With a Weapon and sentencing him to a total of 130 years in Montana State Prison ("MSP") with no eligibility for parole. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err in denying Bar-Jonah's motion to suppress evidence?

¶ 4 2. Did the District Court err in denying Bar-Jonah's motions requesting a second change of venue and a reordering of his trials?

¶ 5 3. Did the District Court err in refusing to grant Bar-Jonah's request for additional peremptory challenges and to strike the entire jury panel because of its exposure to pretrial publicity?

¶ 6 4. Did the District Court err in admitting into evidence two photo albums containing hundreds of photographs of children, including pictures of the victims in the present case?

¶ 7 5. Did the District Court err in admitting into evidence an article found in Bar-Jonah's apartment on how to tie ropes and knots and a pamphlet entitled, "Autoerotic Asphyxia?"

¶ 8 6. Did the District Court err in refusing to strike the pre-sentence investigation report because it was inaccurate and was prepared by a biased probation officer?

¶ 9 7. Did the District Court err in admitting at the sentencing hearing interviews and testimony from victims in criminal cases in which Bar-Jonah had been convicted many years prior and from alleged victims of long past incidents never reported to the police?

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 10 On the morning of December 13, 1999, Detective Robert Burton ("Detective Burton"), a nine-year veteran of the Great Falls Police Department, was driving to work when he observed Bar-Jonah walking a few blocks away from an elementary school. Burton stated he was concerned when he saw Bar-Jonah walking in that area because he knew Bar-Jonah had been previously convicted in Massachusetts of the kidnaping and attempted murder of two young boys while posing as a police officer, and he had been arrested in Great Falls in 1994 for sexual assault and charged with fondling the penis of an eight-year-old boy. (The charges in that case were dismissed in May 1996 because the victim's mother refused to allow the child to testify.) Burton also stated he had observed Bar-Jonah in the same area on two prior occasions the previous week. Burton contacted dispatch and requested a patrol unit make contact with Bar-Jonah to find out what he was doing in the vicinity of the school.

¶ 11 Two Great Falls police officers responded to the call. Officer Brunk ("Brunk") made contact with Bar-Jonah in the 400 block of 27th Street South. It was still dark outside, so Brunk turned on his spotlight and shined it on Bar-Jonah. Bar-Jonah was wearing a dark blue police-style jacket, a knit cap, and he had his hands in his pockets. Brunk asked Bar-Jonah to come to the front of the car and remove his hands from his pockets. Bar-Jonah ignored his request even after Brunk asked him a second time to take his hands from his pockets. At that time, Officer Badgley ("Badgley") arrived. Brunk asked Bar-Jonah if he had something in his pocket and Bar-Jonah responded that he had a stun gun.

¶ 12 Brunk had Bar-Jonah place his hands on the patrol car and Badgley did a pat down search for officer protection. Badgley found two cans of pepper spray, a toy gun, and a badge. Badgley then reviewed Montana statutes regarding impersonating a police officer and carrying a concealed weapon and contacted his shift commander, who advised him to file a report and release Bar-Jonah pending further review.

¶ 13 Detective Bellusci ("Bellusci"), an eighteen-year veteran of the Great Falls Police Department, and the investigating officer on the 1994 case against Bar-Jonah in which charges of sexual assault were eventually dropped, followed up on the police report from the December 13 incident. Bellusci consulted with Deputy County Attorney Julie Macek ("Macek"). Macek believed Bar-Jonah should be charged with Impersonation of a Public Servant (a police officer), in violation of § 45-7-209(1), MCA, and Carrying a Concealed Weapon (the toy gun), in violation of § 45-8-316, MCA.

¶ 14 On December 15, 1999, Bellusci applied for a warrant to search Bar-Jonah's residence, and the warrant was issued. The warrant stated the police believed they had probable cause to believe Bar-Jonah had committed the offenses of Impersonation of a Public Servant and Carrying a Concealed Weapon. The warrant specified the police had reason to believe they would find the following items at Bar-Jonah's residence related to those offenses:

(1) a stun gun;

(2) any police or law enforcement badges or replicas thereof or any other type of law enforcement identification, real or otherwise;

(3) any police or law enforcement clothing items or replicas thereof;

(4) any items used for purposes of detaining other individuals, including but not limited to handcuffs;

(5) any guns or replicas thereof.

The affidavit also requested permission to search for any other items of evidence or contraband discovered in the lawful course and scope of the authorized search related to the above-described offenses.

¶ 15 On December 15, 1999, upon execution of the search warrant, the police seized numerous items from Bar-Jonah's apartment, including: a blue police coat, a silver toy revolver, a silver badge, a Stunmaster stun gun, a ball cap with the logo "security enforcement," two disposable cameras, two albums with cutouts of children, one coat with a badge in the pocket and numerous photos and negatives. Bar-Jonah was subsequently arrested and charged with Impersonation of a Public Servant and Carrying a Concealed Weapon.

¶ 16 On December 17, 1999, the Cascade County Attorney applied for a second search warrant. The application for the second warrant contained the same language as that for the first warrant pertaining to probable cause and related to the same offenses, Impersonation of a Public Servant and Carrying a Concealed Weapon. However, the second affidavit requested permission to search for developed pictures of young children or adults and undeveloped film, in addition to any other items of evidence related to the above-described offenses. Bellusci stated he applied for the second warrant because he felt it was necessary to gather evidence to show motive for the offenses listed in the warrant. The court signed the warrant on that date and the police searched Bar-Jonah's residence for the second time.

¶ 17 During the course of the second search, the police seized a bulletin board containing pictures, 28 boxes of miscellaneous papers, newspaper clippings, and other miscellaneous items.

¶ 18 Great Falls Police Sergeant John Cameron ("Cameron") was then assigned to investigate the Bar-Jonah case. Cameron had specialized training in interviewing victims of sexual abuse. Cameron examined all of the evidence seized from Bar-Jonah's apartment. One of the items recovered in the first search of Bar-Jonah's apartment appeared to be a victim list that Bar-Jonah had written in his own handwriting. The list contained many names, including those of the victims from Bar-Jonah's previous convictions in Massachusetts, and also the name of Zachary Ramsay, a Great Falls child who disappeared early one morning while on his way to school in 1996. While reviewing the victim list, Cameron and FBI agent James Wilson ("Wilson") were able to determine that two of the names on the list belonged to children who lived in the apartment directly above Bar-Jonah. Cameron also determined that some of the photographs from disposable cameras recovered in the first search depicted those same two children in Bar-Jonah's apartment, on his couch and on his bed. The same roll of film also contained pictures of Bar-Jonah on his bed in the nude, displaying his penis in various stages of erection. Given Bar-Jonah's past history as a pedophile, Cameron became concerned the children were possible victims of sexual abuse by Bar-Jonah.

¶ 19 On June 29, 2000, Cameron and Wilson went to the apartment above Bar-Jonah's to request an interview with R.J., one of the children depicted in the photographs. Cameron interviewed R.J., who was fourteen years old at the time. R.J. disclosed that Bar-Jonah had sexually abused him. After interviewing R.J., Cameron and Wilson went to the residence of R.J.'s cousin, S.J. S.J. disclosed that Bar-Jonah had also sexually abused him.

¶ 20 In an information filed on July 5, 2000, Bar-Jonah was charged with three counts of Sexual Assault, one count of Aggravated Kidnaping and one count of Assault With a Weapon. Bar-Jonah pled "not guilty" to the charges.

¶ 21 On November 13, 2000, Bar-Jonah filed a Motion for Change of Venue. In the motion he contended, due to the publicity which linked him to the disappearance of Zachary Ramsay ("Ramsay"), and due to the depth of feelings in Great Falls that surrounded the emotionally charged case, he could not receive a fair trial. The District Court granted the motion, ordering a change of venue for jury selection to Butte, Silver Bow County. However, jurors selected from Silver Bow County would be sequestered for the actual trial, which would be conducted in ...