State v. Brush

• Decision Date: 01 September 1987
• Docket Number: No. 87-097,87-097
• Citation: State v. Brush, 741 P.2d 1333, 228 Mont. 247, 44 St.Rep. 1495 (Mont. 1987)
• Parties: STATE of Montana, Plaintiff/Respondent, v. Scott Stephen BRUSH, Defendant/Appellant,
• Court: Montana Supreme Court

Page 1333

741 P.2d 1333

228 Mont. 247

STATE of Montana, Plaintiff/Respondent, v. Scott Stephen BRUSH, Defendant/Appellant,

No. 87-097.

Supreme Court of Montana.

Submitted on Briefs July 1, 1987.

Decided Sept. 1, 1987.

Joe L. Hegel, Miles City, for defendant/appellant.

Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Keith D. Haker, Custer Co. Atty., J. Dennis Corbin, Deputy Custer Co. Atty., Miles City, for plaintiff/respondent.

HUNT, Justice.

Appellant, Scott Stephen Brush, was convicted of sexual assault in District Court, Sixteenth Judicial District, Custer County, following a trial by jury. During the trial, defense counsel made a motion for a mistrial based on testimony introducing other crimes contrary to a pre-trial agreement. This motion was denied as was a similar motion for new trial and/or mistrial made after the jury verdict. Appellant appeals his conviction and the trial court's denial of his motions for mistrial and new trial.

We affirm.

Brush raises three issues on appeal.

1. Did the District Court err in denying defendant's motion for mistrial after police officer testified to other crimes in spite of prior agreement and without the required Just notice?

2. Did the District Court err in denying the defendant's motion for new trial and/or mistrial upon the grounds that the officer's testimony was prejudicial?

3. Did the District Court err by applying the wrong standard for determining whether the defendant was prejudiced by the officer's testimony?

On August 19, 1985, defendant Brush went to Bender Park located on the northeast side of Miles City where he struck up a conversation with a juvenile, J.L.O., age eight, accompanied by her eight month old brother. J.L.O. testified at trial that Brush asked her a lot of questions and then put his arms around her and rubbed her genital area when she bent over to place her brother in his stroller. She ran behind a building and when Brush did not pursue her, returned to the stroller, put her brother in it, and went to her home across the street. J.L.O. immediately told her mother that there was a man in the park who was asking her a lot of questions. Her mother then went over to the park, wrote down the license number of the defendant's orange van and got a general description of the defendant who was still in the park. She called the police. Officer Newby responded to the call and was approached by two other children at the park, W.B.Z. and R.Z. They described the defendant and told Newby that he had tried to touch both of them in their "private parts." At this time, J.L.O. arrived at the park and told the officer she had been touched in her "private parts" also. The defendant was eventually arrested after his van was identified and stopped at an intersection by other officers who found numerous opened and unopened beer bottles. Defendant admits talking to J.L.O. at the park but denies touching her.

Brush was charged by information under Sec. 45-5-502(1), MCA, on two counts of sexual assault against J.L.O. and W.B.Z. The counts were severed by order on December 20, 1985. This case deals only with count one regarding the offense against J.L.O. Upon learning that the State would call W.B.Z. to the stand as part of their case in chief, defense counsel requested that the State be prevented from asking W.B.Z. questions relating to the charge in the severed second count. The county attorney orally agreed to this before trial.

The controversy in this case surrounds the testimony given by Officer Newby. After relating the description of the defendant given by W.B.Z. and R.Z., the following occurred:

Q. What other conversation did you have with the youth? A. I asked them basically what the problem was--you know, did they have any problem with this man. The nature of the call was "bothering", so I then inquired of what was happening.

Q. Did any of the youth explain to you? A. Yes.

Q. Just continue, what occurred? A. Robin stated that the man was--that he talked very nice and he tried to touch both of them in their private parts.

Defense counsel's objection was sustained and the jury was directed to disregard any testimony concerning any other alleged offense. After the close of the State's case, defendant entered a motion for mistrial which was denied, as was a motion for new trial and/or mistrial made after the verdict came in.

Appellant first contends that the State failed to conform to the procedural requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The decision in that case requires that the prosecutor give reasonable notice to the defendant that he intends to introduce evidence of other crimes. Just, 602 P.2d at 963-64. The purpose of this rule is to insure that the defendant is fully informed of what crimes or charges he need defend against so that he will not be taken by surprise at trial. The trial court found that Newby's testimony had been inadvertent. Both the county attorney and defense counsel agreed at trial that Newby's testimony was not a planned part of the State's case. Indeed, the county attorney had fully instructed Newby regarding such testimony in accordance with the pre-trial agreement. We fail to see how Just applies to a case where the county attorney never intended to introduce evidence of defendant's other crimes and where the testimony was an unintentional response to a non-suggestive question as occurred here. Therefore, we conclude that no Just notice was required under these circumstances.

Appellant next contends that the introduction of Newby's testimony was of "such an inflammatory nature" that the cautionary instructions given by the court "only served to reinforce the prejudicial effect in the minds of the jurors." The standard for establishing prejudice is whether a substantial right was denied. Section 46-20- 701, MCA; State v. Gray (Mont.1983), 673 P.2d 1262, 1266, 40 St.Rep. 2023, 2027; State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. Only if there was a reasonable possibility that the inadmissible evidence might have contributed to the conviction is there reversible error. State v. Howell (Mont.1987), 734 P.2d 214, 217, 44 St.Rep. 542, 546; Gray, 673 P.2d at 1266; Wells, 658 P.2d at 388; State v. LaVe (1977), 174 Mont. 401, 571 P.2d 97.

Here, Officer Newby's testimony was not purposely drawn out by the county attorney. Defense counsel agreed that it was an inadvertent slip. The testimony was neither graphic nor detailed and the county attorney made no effort to corroborate it. In addition, J.L.O.'s testimony was found by the trial court to be consistent with corroborating testimony and truthful. Under the above circumstances we find that even if there was error it was rendered harmless by the trial court's cautionary instructions to the jury.

The general rule is that where the trial judge withdraws or strikes improper testimony from the record with an accompanying cautionary instruction to the jury any error committed by its introduction is presumed cured. State v. Smith (Mont.1986), 715 P.2d 1301, 1308, 43 St.Rep. 449, 456; State v. Gray (Mont.1983), 673 P.2d 1262, 1266, 40 St.Rep. 2023, 2027; State v. Freeman (1979), 183 Mont. 334, 345, 599 P.2d 368, 374. As we discussed in Freeman, the jury cannot be presumed to ignore their duties to respect the instructions of the court and to decide a case based only upon the evidence admitted. Freeman, 599 P.2d at 374-75. See also State v. Armstrong (1980), 189 Mont. 407, 428, 616 P.2d 341, 353. The trial court gave three cautionary instructions admonishing the jury to disregard Officer Newby's comment. One was given immediately after defense counsel's objection. Another was given at the end of county attorney's redirect examination of Newby and a third was given in jury instruction no. 14 as follows:

INSTRUCTION NO. 14

Testimony has been given by Officer Newby that during his initial investigation that he was told by two children that the defendant had touched them. You are instructed to erase this testimony from your minds and not allow it to influence you in any manner in determining if the defendant is...