State v. Erickson

• Decision Date: 21 December 2021
• Docket Number: DA 20-0159
• Parties: STATE of Montana, Plaintiff and Appellee, v. Tyler Frederick ERICKSON, Defendant and Appellant.
• Court: Montana Supreme Court

406 Mont. 524

500 P.3d 1243

STATE of Montana, Plaintiff and Appellee,

v.Tyler Frederick ERICKSON, Defendant and Appellant.

DA 20-0159

Supreme Court of Montana.

Submitted on Briefs: November 17, 2021

Decided: December 21, 2021

For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana, Steven N. Eschenbacher, Lake County Attorney, Benjamin Anciaux, Deputy County Attorney, Polson, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Tyler Frederick Erickson (Erickson) appeals his conviction in the Twentieth Judicial District Court, Lake County, for Assault on a Peace Officer, a felony, under § 45-5-210, MCA. He appeals the District Court's denial of his motion for mistrial, based on two alleged incidents of prosecutorial misconduct.

¶2 We affirm, and address the following issue:

Did the District Court err by denying Erickson's motion for mistrial based upon the prosecutor's "felony probation" comment during opening statement, and a remark about Erickson's prior prison incarceration by a prosecution witness?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Erickson was convicted in 2015 of Criminal Possession of Dangerous Drugs under § 45-91-102, MCA, and was sentenced to a five-year commitment to the Department of Corrections. Following his release, he met with probation officer Devon McCrea (McCrea), for monthly check-ins. On June 28, 2018, Erickson reported to the probation office for his monthly appointment, but the visit ended with Erickson pulling a knife on McCrea and other officers. As a result, the State charged him with one count of Assault on a Peace Officer, a felony.

¶4 Erickson filed a motion in limine to exclude evidence of prior crimes. In response, the State requested leave to introduce evidence that Erickson was on probation at the time of the offense, arguing this information was a necessary component of the allegation that he assaulted his probation officer. The prosecutor explained to the District Court:

From the standpoint of what the State would want to present at trial, it would simply be that [Erickson] is on probation .... The State has no interest in letting the jury know what he is on probation for .... But we would like to be able to mention that he is reporting as a regular probationer to the probation office and that the people he reported to are the people that are the victims in this matter.

The District Court agreed with the prosecutor's reasoning and ruled the State could introduce evidence that Erickson was on probation, reported to the probation office, and allegedly assaulted a probation officer there.

¶5 Shortly after the prosecutor began his opening statement, he told the jury: "[McCrea] is Mr. Erickson's supervising officer so she sees him on a regular basis. He's on probation. And that would be felony probation because you don't have misdemeanor probation." (Emphasis added.) Erickson's counsel objected to the statement as a reference to Erickson's prior bad acts and, in an off-the-record discussion, moved for a mistrial, which the District Court denied.

¶6 McCrea testified she had been Erickson's probation officer "since his release," and that, on the day of the incident, he "didn't seem himself" and "seemed a little stressed." Based on her experience, McCrea suspected recent drug use. McCrea asked Erickson if he had used drugs recently, to which he admitted using methamphetamine that morning, in violation of his probation conditions. McCrea explained to Erickson the consequences of violating this condition included increased weekly reporting to the probation office, increased urine analysis testing, and the possibility of referring him to Western Montana Addiction Services for an updated chemical dependency evaluation.

¶7 McCrea related that Erickson "wasn't receptive" to these changes, informing her he would not comply with weekly reporting and commenting that "if he has to attend any out-patient or self-help that he was going to harm the counselors." He also threatened to hurt the police if McCrea called them. McCrea stepped out of her office to call detention officers, leaving Erickson under the supervision of fellow probation officer, Raymond Czak (Czak). She explained this was an attempt to conceal the call from Erickson. McCrea returned to her office and informed Erickson that she needed to place him in handcuffs for safety. Erickson backed away from the probation officers and "pulled a knife out of his pocket, exposed the blade and was holding it toward [McCrea and Czak]." McCrea testified that when she saw the knife, "I thought I was going to be stabbed. I thought I was going to be hurt." McCrea indicated that Erickson, while holding the knife, told her "he wasn't going back and asking me not to do this," and that she reached for her weapon because she "felt like [Erickson] was a threat." When she realized her gun was locked under her desk, she started "negotiating" with Erickson, saying "drop the knife" approximately a dozen times.

¶8 Erickson backed toward the window and further away from the officers. At one point he put the knife away and tried to move the desk between himself and the officers, which appeared to McCrea like he was attempting to create a barricade. McCrea said that Erickson also "slam[ed] and thrash[ed] his back into the glass window," which McCrea interpreted as "him trying to break it for his escape route." When local police officers arrived, Erickson pulled out the knife a second time and exposed the blade. McCrea testified that Erickson "threw [the knife]," although not directly at the officers, "and the blade stuck into the drywall" momentarily before falling to the floor. When police officers entered the room, Erickson asked that McCrea be the one to place him in handcuffs, which she did.

¶9 Following McCrea's testimony regarding the incident, the prosecutor asked McCrea about her knowledge of other threats made by Erickson, and the following exchange occurred:

Prosecutor: Had he made threats against other people?

McCrea: That day?

Prosecutor: Yes.

McCrea: Not that I am aware of ....

Prosecutor: But [Erickson] said he was in ITU at one point to you?

McCrea: Intensive Treatment Unit.

Prosecutor: Okay. And that would be an upgrade from what he was doing?

McCrea: That is at the Montana State Prison.

Defense counsel objected and a discussion with the court was held off the record, after which the prosecutor continued his questioning:

Prosecutor: Isn't it true that he had threatened the people [at ITU], said that he would harm them?

McCrea: He made a comment, something about he barely made it through the program because of harming the counselors.

Prosecutor: And did he say, while you were in your office on the 28th of June, that he would harm police if they came?

McCrea: Yes.

Prosecutor: So contrary to what you just testified to that he made no threats against other people, he had, in fact, that day made threats against other people?

McCrea: Yes, towards other law enforcement.

¶10 Czak testified consistently with McCrea's testimony about the incident, although he indicated Erickson had "lunged" with the knife at Czak and McCrea, while McCrea testified that "he was going to lunge towards us but hesitated and did not."

¶11 At the close of the prosecution's case-in-chief, defense counsel renewed a motion for mistrial, based on the prosecutor's reference to Erickson being on "felony probation" in his opening statement and the questioning that led to McCrea revealing Erickson had been incarcerated at the Montana State Prison. Defense counsel argued the prosecutor's actions were unfairly prejudicial and violated the District Court's ruling on the motion in limine excluding evidence of prior crimes:

We agreed that [p]robation would come up ... but we also agreed that any underlying offenses ... that [Erickson] has committed in his past would not be brought up. That's why I filed the motion in limine. I was under the impression that the State agreed to it. Obviously not.

¶12 The prosecutor responded that McCrea's reference to Erickson's time in prison was unintentional because he had instructed McCrea prior to trial not to talk about anything beyond her report and its reference to Erickson telling her he had almost harmed counselors at the ITU. He elaborated, "As far as the context within which that comment was made, the defendant himself, according to Officer McCrea's testimony, said, ‘I almost hurt those people the last time.’ The jury needs to know what the situation there is." As for the comment about felony probation, the prosecution argued the State had not technically violated the motion in limine because he did not specifically reveal what Erickson was on probation for, or whether it was a violent or non-violent offense. He suggested the statements could be cured by a cautionary instruction.

¶13 The District Court stated, "I wish [the prosecutor] hadn't said that in opening statement about felony probation .... I can understand why [defense counsel] would think this is a tactic by the prosecutor to prejudice." However, the District Court denied the request for mistrial, reasoning:

[T]his incident happened in the Probation & Parole's office. It's inescapable that [the jury is] going to know that he's on Probation & Parole. And they've got to be able to say everything that happened and also that the officers have to be able to say whether they were afraid and why .... [The jury were] already going to inevitably know that he's on probation, that he's using methamphetamine and that he's carrying a knife. So in this situation I don't think it as prejudicial ... I agree with the State that it's curable by a cautionary instruction. If you want to offer one, I will likely give one.

¶14 Following denial of the motion, Erickson testified and largely corroborated the officers' testimony, admitting to exposing the knife ...