State v. Enright, 99-545.

• Citation: 2000 MT 372,16 P.3d 366,303 Mont. 457
• Decision Date: 28 December 2000
• Docket Number: No. 99-545.,99-545.
• Parties: STATE of Montana, Plaintiff and Respondent, v. Donna June ENRIGHT, Defendant and Appellant. State of Montana, Plaintiff and Respondent, v. Roy A. Link, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

16 P.3d 366

2000 MT 372

303 Mont. 457

STATE of Montana, Plaintiff and Respondent, v. Donna June ENRIGHT, Defendant and Appellant.

State of Montana, Plaintiff and Respondent, v. Roy A. Link, Defendant and Appellant.

No. 99-545.

Supreme Court of Montana.

Submitted on Brief August 17, 2000.

Decided December 28, 2000.

Jon A. Oldenburg; (for Enright), Craig R. Buehler, Attorney at Law, Lewistown, MT, (for Link), For Appellants.

Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena, MT, For Respondent.

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

¶ 1 Following a consolidated jury trial in the Tenth Judicial District Court, Judith Basin County, Donna June Enright (Enright) was found guilty of arson and deliberate homicide. Her brother and co-defendant, Roy A. Link (Link), was tried and convicted of arson by accountability and deliberate homicide under the felony murder rule. Both defendants now allege that their trials should not have been consolidated, that the State presented insufficient evidence for their convictions and that certain evidence was improperly admitted against them at trial. We affirm the judgment of the District Court.

¶ 2 The charges against Enright and Link stem from the death of Enright's step-father, Leonard Theis (Leonard), in a trailer fire on October 17, 1996, in Stanford, Montana. The State alleged that Enright and Link, acting in concert, intentionally started the fire to collect on insurance policies they purchased on Leonard's life. Enright was charged by information with one count of deliberate homicide and one count of arson. The information was later amended to include a charge of deliberate homicide (felony murder) as an alternative to the deliberate homicide charge. Link was charged with arson by accountability, deliberate homicide, and deliberate homicide by accountability.

¶ 3 Both pled not guilty to all charges. Following a five-day trial, Enright was convicted of arson and deliberate homicide. In a separate trial, Link was convicted of arson by accountability and deliberate homicide but acquitted of the deliberate homicide by accountability charge. Enright appealed her conviction and this Court reversed and remanded for a new trial on the grounds that certain prior acts evidence should not have been admitted. State v. Enright, 1998 MT 322, ¶ 37, 292 Mont. 204, ¶ 37, 974 P.2d 1118, ¶ 37. This Court subsequently reversed Link's arson and deliberate homicide convictions and remanded his case for a new trial as well. State v. Link, 1999 MT 4, ¶ 35, 293 Mont. 23, ¶ 35, 974 P.2d 1124, ¶ 35.

¶ 4 to their second trial, the charges against Link were amended to arson by accountability and deliberate homicide under the felony murder rule. The District Court also granted the State's motion, opposed by both Enright and Link, to consolidate their trials. Following the consolidated trial, the jury found Enright guilty of arson and deliberate homicide and Link guilty of arson by accountability and guilty of deliberate homicide under the felony murder rule. The District Court sentenced Enright to concurrent terms of twenty years on the arson charge and seventy-five years on the deliberate homicide charge. Link was sentenced to five years on the arson by accountability charge and twenty years on the felony murder charge. Both appeal from the judgment of conviction and sentence and together raise the following issues:

¶ 5 Issue 1: Did the District Court err when it consolidated Link and Enright's trials?

¶ 6 Issue 2: Did the District Court err when it denied Links's motion in limine to exclude exhibits and witnesses?

¶ 7 Issue 3: Did the District Court err when it denied Link's motion in limine to exclude the November 22, 1996 letter from Enright?

¶ 8 Issue 4: Was there sufficient evidence to support Link and Enright's convictions? ¶ 9 Issue 5: Did the District Court commit such cumulative error that Enright was denied a fair trial?

DISCUSSION

¶ 10 Issue 1: Did the District Court err when it consolidated Link and Enright's trials?

¶ 11 At the pretrial omnibus hearing, Enright claimed that consolidation would prejudice her defense by allowing the introduction of character evidence that would not be admissible against her in a separate trial. Link's only specific claims were that joinder of his case prevented him from eliciting exculpatory evidence from Enright and prevented him from calling Enright's attorney to explain the context of a letter written by Enright to Link while she was in prison awaiting the first trial. The District Court found that the cases met the statutory requirements for consolidation and that considerations of judicial economy far outweighed any prejudice claimed by the defendants. We agree.

¶ 12 The decision to join or sever a trial is within the discretion of the trial court. State v. Graves (1990), 241 Mont. 533, 538, 788 P.2d 311, 314. Therefore, we review such a decision for abuse of discretion. State v. Turner (1993), 262 Mont. 39, 53, 864 P.2d 235, 244. The district court's discretion to consolidate trials is defined both by statute and case law. Montana law provides that two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same transaction constituting an offense or offenses. Section 46-11-404(4), MCA. In addition, § 46-13-210, MCA, provides that "the court may order two or more indictments, informations, complaints, or defendants to be tried together if the interests of justice require...." In considering whether there should be a joint trial, we have held that the district court must weigh the State's interest in judicial economy against the defendant's right to a fair trial. Turner, 262 Mont. at 53, 864 P.2d at 244. Joint trials speed the administration of criminal justice, conserve judicial time, lessen the burden on prospective jurors and obviate the necessity of recalling witnesses. The trial court must weigh these benefits against the prejudice to a defendant that may arise as a result of his being tried with another defendant. State v. Strain (1980), 190 Mont. 44, 55-56, 618 P.2d 331, 338. In striking this balance, considerations of judicial economy exert strong pressure in favor of joint trials. State v. Campbell (1980), 189 Mont. 107, 121, 615 P.2d 190, 198 (citing United States v. Dohm (5th Cir.1979), 597 F.2d 535, 540). Further, the burden of showing prejudice rests on the defendant. Campbell, 189 Mont. at 121, 615 P.2d at 198 (citing State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515). In showing prejudice, it is not sufficient that the defendant prove some prejudice or that a better chance of acquittal exists if separate trials are held. Rather, the defendant must show the prejudice was so great as to prevent a fair trial. Campbell, 189 Mont. at 121, 615 P.2d at 198 (citing Dohm, 597 F.2d at 539).

¶ 13 Enright and Link's cases meet the statutory requirements for consolidation because all charges arise from a fire in a trailer house in Stanford on October 17, 1996 in which Leonard lost his life. Both defendants are alleged to have participated in criminal acts resulting in the fire and death. It is not required that they be charged with identical offenses. Section 46-11-404(4), MCA.

¶ 14 In addition, the District Court found, correctly, that a great amount of judicial time and expense would be saved by consolidating the trials. The witnesses called to testify and the physical evidence to be introduced by the State were almost the same for both defendants. Enright and Link relied on the same expert witnesses in their first trials. They were expected to do so again. On motion of the defendants, the trial was moved from Judith Basin County, where the defendants were originally tried, to Hill County. As a consequence of this change of venue, the District Court found that consolidation of the trials would significantly reduce inconvenience to witnesses and jurors. None of these findings are disputed. Rather, Enright and Link contend that the potential prejudice outweighed these considerations of judicial economy.

¶ 15 Enright claimed that Link would attempt to present derogatory character evidence against her; evidence that would not be admissible against her in a separate trial. However, in their original trials, neither defendant attempted to blame the other. Rather, they both contended that the fire was either set by others or was an accident. The District Court found no evidence that the parties' defenses would be different in the consolidated trials and Enright presented no evidence that Enright and Link were hostile to one another.

¶ 16 Link claimed that consolidation of the trials prevented him from eliciting exculpatory evidence from Enright. Inability to call an exculpating co-defendant is a legitimate ground for denying a motion to consolidate trials. However, to establish prejudice the defendant must be prepared to show that the co-defendant will testify and that the testimony will actually be exculpatory. State v. Dess (1984), 207 Mont. 468, 474, 674 P.2d 502, 505 (citing Byrd v. Wainwright (5th Cir.1970), 428 F.2d 1017, 1019-20). Link did not make this showing. In his brief in response to the motion, he actually asserted that Enright might make inculpatory rather than exculpatory statements if called to testify. On appeal, he drops this argument for more general but still unsupported assertions of prejudice.

¶ 17 Link also asserts that consolidation of the trial left him unable to call Enright's attorney to explain the background of a letter that implicated Link in a plan to commit arson with his sister, Enright. Link was unable to offer any evidence to the District Court that Enright's attorney would be called to testify, that Enright would waive attorney-client privilege to allow him to testify, or that he would, indeed, offer any exculpatory testimony if he took the...