State v. Denny

• Decision Date: 04 May 2021
• Docket Number: DA 19-0586
• Citation: 485 P.3d 1227,2021 MT 104
• Parties: STATE of Montana, Plaintiff and Appellee, v. Gregory George DENNY, Defendant and Appellant.
• Court: Montana Supreme Court

485 P.3d 1227

2021 MT 104

STATE of Montana, Plaintiff and Appellee,

v.Gregory George DENNY, Defendant and Appellant.

DA 19-0586

Supreme Court of Montana.

Submitted on Briefs: March 10, 2021

Decided: May 4, 2021

For Appellant: Trevor Carlson, Carlson Law, PLLC, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Joshua A. Racki, Cascade County Attorney, Stephanie Fuller, Ashley Archer, Deputy County Attorneys, Great Falls, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 A jury found Appellant Gregory George Denny guilty of felony Theft by Possession of Stolen Property and four misdemeanors: Obstructing a Peace Officer; Fleeing or Eluding a Peace Officer; Speeding; and Driving Without a Valid License. Denny appeals from his conviction entered in the Eighth Judicial District Court, Cascade County. We affirm.

¶2 Denny presents the following issues for review:

1. Did the District Court properly deny Denny's motions for mistrial after two separate references to Denny's "jail" status were made by State witnesses?

2. Did the District Court properly refuse Denny's proposed jury instruction for unauthorized use of a motor vehicle as a lesser-included offense of theft by possession of stolen property?

3. Was Denny denied effective assistance of counsel?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On March 29, 2018, Denny was driving a stolen vehicle, a Chevrolet Avalanche, and led police on a high-speed chase through Great Falls, Montana. The vehicle was displaying a license plate that had been stolen off another vehicle, and Denny did not have a valid driver's license at the time. Accordingly, the State charged Denny by Information with Count I: Theft, a felony, in violation of § 45-6-301(1)(a), MCA ; Count II: Theft, a misdemeanor, in violation of § 45-6-301(3)(a), MCA ; Count III: Obstructing a Peace Officer or Other Public Servant, a misdemeanor, in violation of § 45-7-302, MCA ; Count IV: Fleeing or Eluding a Peace Officer, a misdemeanor in violation of § 61-8-316, MCA ; Count V: Speeding, a misdemeanor, in violation of § 61-8-310(1), MCA ; and Count VI: Driving Without a Valid Driver's License, a misdemeanor, in violation of § 61-5-102, MCA. Count I was later amended to Theft, a felony, in violation of § 45-6-301(3)(c), MCA.

Ineffective Assistance of Counsel: Transactional Evidence

¶4 A two-day jury trial began on January 28, 2019. On the first day of trial, the District Court heard argument from both parties regarding the State's motion in limine to introduce testimony that Denny traded methamphetamine and/or heroin for the stolen vehicle. The State argued this was admissible under the transaction rule as codified in § 26-1-103, MCA, and the evidence was inextricably linked to, and explanatory of, the crime charged. Denny objected on grounds that the evidence was highly prejudicial and that the witness providing the evidence, Brian Osborn, was neither reliable nor credible and might be accountable for the charged theft and possession of the stolen vehicle. Osborn, who was incarcerated in the county jail, was the State's key witness, testifying to most of the details required to convict Denny of the charged offenses. The District Court reserved its ruling until it came time for the parties to introduce testimony on the matter.

¶5 On the second day of trial, and in anticipation of Osborn's testimony, the State made an offer of proof, changing its argument slightly. The State now sought to elicit testimony that Denny had traded drugs for a stolen license plate, not for the vehicle. The State offered to have Osborn testify that Denny received the license plate in a transaction that took place at a house in north Great Falls. Osborn would testify that he and Denny were together in the house and that he overheard the transaction take place—namely, that Denny was bartering with someone to get the license plate and that Denny ultimately gave that person heroin and/or methamphetamine in exchange for the license plate.

¶6 Denny's attorney reversed his position and stipulated to the admission of the evidence. The District Court clarified that Denny was not objecting to the evidence and then granted the State's motion, concluding the evidence was admissible under the transaction rule. The court limited the State from introducing any other evidence of Denny's history of dealing drugs.

¶7 Osborn's testimony was consistent with the State's offer of proof. Osborn testified that Denny—while Osborn was helping Denny do some modifications and repairs to the Avalanche—removed a temporary paper license tag from the rear of the stolen vehicle and put on the dealer license plate he had purchased "from two individuals over at a house on the north side ...." When asked how Denny obtained the plate, Osborn stated that "some transaction happened, and a license plate was traded, and a deal was made for it. It was pretty cheap because...the plate wouldn't last long because it was a stolen dealer tag off [another] vehicle ...." Osborn stated Denny used the fact that the plate was stolen as a bartering chip to get a better deal; it was Osborn's impression that Denny used that fact as a bargaining point. Osborn testified that Denny gave them some methamphetamine and a little bit of heroin in exchange for the stolen plate.

Motions for Mistrial

¶8 On the second day of trial, Denny made two motions for mistrial that are at issue on appeal. First, the State sought to introduce a video recording of an incident that occurred when Denny returned to jail after his first day of trial, the night before Osborn was set to testify. The video showed Denny communicating by hand signals with Osborn, presumably in an attempt to intimidate Osborn before testifying. Prior to introducing the video, the prosecutor asked Osborn whether Denny had attempted to make contact with him in the last 24 hours. Osborn responded, "At the county jail, yes, after he came back from his court appearance here." Denny's counsel objected and moved for a mistrial. Outside the presence of the jury, Denny's counsel argued that Osborn's reference to "jail" "expose[d] the jury to the fact that [Denny was] an inmate," a fact the defense had made efforts to keep out of the record. The District Court denied the motion.

¶9 Osborn proceeded with his testimony, describing the hand signals Denny made towards Osborn. Osborn testified that Denny got his attention and made a gesture towards Osborn, to "shut [his] mouth." Osborn testified that the gesture Denny made was covering the lips and "like turned fingers ... sort of like a locking device[.] And then the second one was like a slice across the throat." Osborn said the gestures shocked and scared him. Osborn stated that he began gesturing back to Denny:

I started making my hands up like ... "no, no, don't worry," you know, and like everything's cool. Gave him a thumbs up. Trying to convey that I was ... not going to be here, I guess .... Because at that point I was scared.

Osborn testified, "I guess that [Denny] took that as confirmation that I was going to shut my mouth .... And then, he gave me what I believe was a heart symbol .... That he loves me."

¶10 The second motion for mistrial arose out of the State's attempt to introduce an audio recording of Denny during a jail phone call. In the call, Denny made admissions about running from the cops in the Avalanche. The State called Detective Derek Mahlum to testify about his investigation of the stolen Avalanche and that he had listened to and reviewed the audio recording as part of his investigation. When the State asked Detective Mahlum to identify the "voice recording," marked as State's Exhibit 5, Detective Mahlum responded, "Without listening to it, based on the label, it's a jail visitation between Mr. Greg Denny ...." Defense counsel again moved for a mistrial. The District Court excused the jury and defense counsel argued that Detective Mahlum's characterization of the phone call as a "jail phone call" was "enough for a mistrial," and was cumulative error, referring to the first motion for mistrial. The court, again, denied Denny's motion for mistrial.

Jury Instructions

¶11 During jury instruction deliberation, Denny asked the District Court for a lesser-included offense instruction. He argued that the jury should receive an instruction for unauthorized use of a motor vehicle, under § 45-6-308(1), MCA, as a lesser-included offense of theft by possession of stolen property, under § 45-6-301(3)(c), MCA. The District Court denied Denny's request.

¶12 The jury found Denny guilty on all charges except Count II, which pertained to theft of the license plate. The District Court sentenced Denny on Count I to the Montana Department of Corrections for a period of three years with one year suspended. The court sentenced Denny on Count III to a suspended six-month commitment in county jail, concurrent to Count I. On Count IV the court sentenced Denny to a suspended one-year commitment in county jail, concurrent to Count I and III. The court sentenced Denny to a fine of $10 for Count V and a fine of $50 for Count VI, both of which were satisfied by credit for time served. The District Court ordered Denny to pay restitution in the amount of $740.50.

STANDARDS OF REVIEW

¶13 This Court reviews the denial of a motion for a mistrial to determine whether the district court abused its discretion. State v. Gunderson , 2010 MT 166, ¶ 91, 357 Mont. 142, 237 P.3d 74. A mistrial is an extreme remedy and may only be granted for manifest necessity as required by the ends of justice. State v. Flores , 1998 MT 328, ¶ 11, 292 Mont. 255, 974 P.2d 124. We review a district court's refusal to give a jury instruction on a lesser-included offense for an abuse of discretion. State v. Daniels , 2017 MT 163, ¶ 9, 388 Mont. 89, 397 P.3d 460. We review claims of instructional error in a criminal case to determine whether the jury instructions, as...