State v. Flores

• Decision Date: 30 December 1998
• Docket Number: No. 97-387,97-387
• Citation: State v. Flores, 974 P.2d 124, 292 Mont. 255, 1998 MT 328 (Mont. 1998)
• Parties: , 1998 MT 328 STATE of Montana, Plaintiff and Respondent, v. Juan Jose FLORES, Defendant and Appellant.
• Court: Montana Supreme Court

Page 124

974 P.2d 124

292 Mont. 255, 1998 MT 328

STATE of Montana, Plaintiff and Respondent, v. Juan Jose FLORES, Defendant and Appellant.

No. 97-387.

Supreme Court of Montana.

Submitted on Briefs Aug. 20, 1998.

Decided Dec. 30, 1998.

J.G. Shockley, Victor, for Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, George H. Corn, Ravalli County Attorney, Hamilton, for Respondent.

Justice JIM REGNIER delivered the opinion of the Court.

¶1 On June 28, 1996, Juan Jose Flores was charged by information in the Twenty-First Judicial District Court in Ravalli County with aggravated assault in violation of § 45-5-202(1), MCA. On December 18, 1996, a jury found Flores guilty of aggravated assault. On April 11, 1997, Flores filed a notice of appeal. We affirm the judgment of the District Court.

¶2 The issues presented on appeal are as follows:

¶3 1. Did the District Court err when it denied Flores' motion for a mistrial after the State arrested a defense witness in the presence of the jury?

¶4 2. Did the District Court err when it allowed the State to introduce photographs of the victim's wounds?

¶5 3. Did the District Court err when it limited Flores' impeachment of Milton Harshbarger?

¶6 4. Did the District Court err when it denied Flores' request to treat Milton Harshbarger as a hostile witness?

¶7 5. Did the District Court err when it denied Flores' instruction on the lesser included offense of misdemeanor assault?

¶8 6. Does the doctrine of double jeopardy bar further prosecution in this case?

FACTUAL BACKGROUND

¶9 On June 12, 1996, outside a bar near Hamilton, Juan Flores cut Mike Rosling's forearm with a knife. Rosling was required to undergo surgery and extensive physical therapy, and can no longer work at his occupation because of his injuries. At trial, Flores claimed that he cut Rosling in self-defense because Rosling approached him while swinging a belt with a buckle. Rosling claimed that Flores attacked him as Rosling was backing away from Flores with his arm above his head for protection from Flores' knife.

ISSUE 1

¶10 Did the District Court err when it denied Flores' motion for a mistrial after the State arrested a defense witness in the presence of the jury?

¶11 When considering whether to grant or deny a mistrial we have held that the trial court must consider whether the defendant has been denied a fair and impartial trial. See State v. Partin (1997), 287 Mont. 12, 15, 951 P.2d 1002, 1005. A mistrial is considered an extreme remedy, only to be granted for manifest necessity as required by the ends of justice. See State v. Brush (1987), 228 Mont. 247, 252-53, 741 P.2d 1333, 1336. Consequently, trial judges are encouraged to consider alternatives to a mistrial, such as cautionary instructions. See State v. Moran (1988), 231 Mont. 387, 391, 753 P.2d 333, 336, cert. denied (1988), 488 U.S. 826, 109 S.Ct. 75, 102 L.Ed.2d 52.

¶12 On appeal, we review the trial court's decision for an abuse of discretion. See Moran, 231 Mont. at 389, 753 P.2d at 336. If the trial judge acted rationally and responsibly, we will affirm his or her decision. See Moran, 231 Mont. at 389, 753 P.2d at 335.

¶13 Robert Fix testified as a defense witness at Flores' trial. At the close of Fix's testimony, he was arrested by the courtroom bailiff on an outstanding warrant for nonappearance in a DUI case. The arrest occurred in open court and in the presence of the jury. Flores requested that the District Court admonish the State and inform the jurors that they should disregard the incident. The District Court admonished the jurors as follows:

Ladies and gentlemen, as you saw, Mr. Fix was taken into custody by the sheriff's office in connection with an unrelated matter. You are not to let that interfere with the evaluation of his testimony. That has nothing to do with his testimony today, and you're not to consider it in evaluating whether or not you find his testimony to be credible.

¶14 Flores then moved for a mistrial, which the District Court denied. During the settling of jury instructions, Flores renewed his request for a mistrial. The District Court observed that although it would have been preferable for the arrest to have taken place outside the presence of the jury, what occurred was not "so shocking as to override the jury's judgment." The District Court attributed the incident to the bailiff's inexperience and denied Flores' renewed request for a mistrial.

¶15 In his closing argument, defense counsel admitted that "Mr. Fix was not the most credible witness in the world."

¶16 On appeal, Flores insists that the State knew what was about to happen before it transpired. This is the same argument Flores presented to the District Court. The District Court rejected Flores' assertion that the State had prior knowledge and should be held responsible for Fix's arrest in the jury's presence.

¶17 Because a mistrial is an exceptional remedy, something short of a mistrial is preferred unless the ends of justice require otherwise. We have held that a trial court's denial of a motion for mistrial is entitled to deference on appeal and should not be second guessed by this Court. See State v. Walker (1996), 280 Mont. 346, 352, 930 P.2d 60, 63-64; Brush, 228 Mont. at 252-53, 741 P.2d at 1336. We conclude that Flores has not established a reason why the District Court's cautionary instruction to the jury did not serve the ends of justice in light of the particular facts of this case. Certainly, the arrest of a witness in front of a jury is a practice that we condemn; however, as the State indicates, the prejudice as a result of this ill-timed arrest does not rise to the level necessary to justify a mistrial.

¶18 Accordingly, we conclude that the District Court did not abuse its discretion when it denied Flores' motion for a mistrial based upon Fix's in-court arrest.

ISSUE 2

¶19 Did the District Court err when it allowed the State to introduce photographs of the victim's wounds?

¶20 The admissibility of evidence is within the sound discretion of the trial court. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The trial court must consider the relevance of the photographic evidence, and whether its probative value outweighs its prejudicial effect. See State v. McKeon (1997), 282 Mont. 397, 404, 938 P.2d 643, 647. We have recognized that photographs are not inadmissible simply because they are gruesome or depict the brutality and viciousness of the crime. See Gollehon, 262 Mont. at 302, 864 P.2d at 1263.

¶21 Flores appeals the District Court's admission into evidence of four photographs of Rosling's injury which were taken immediately following his altercation with Flores. The photographs are graphic and depict a large gash wound that exposes tissue, muscle, and bone. Flores contends, pursuant to Rule 403, M.R.Evid., that the only utility of the photographs was to inflame the passions of the jury and that any probative value of the photographs was outweighed by their prejudicial effect. Flores maintains that if there was any need for the State to show the jury the location of Rosling's wound, the scars on his forearm would have sufficed. Flores suggests that there is a reasonable possibility that the photographs helped convict him.

¶22 We agree with the District Court and the State that these photographs, as gruesome as they appear, were properly admitted because they were essential to the jury's understanding of the case. Flores testified that he cut Rosling in self-defense while Rosling was approaching him with his arm raised and while swinging a belt with a buckle. Rosling, on the other hand, testified that Flores attacked him with a knife while he was backing away from Flores with his arm above his head for protection. Thus, the photographs were relevant to both the State and the defense to show the position of Rosling's arm at the moment when he was cut.

¶23 The photographs also helped provide the jurors with an understanding of the nature and extent of the injury so that if they were convinced that Flores acted in self-defense, they could determine whether Flores exercised reasonable force.

¶24 Finally, the photographs aided the jury in its determination of whether the State had proven the "serious bodily injury" element of aggravated assault. Flores maintains that he stipulated to the serious nature of the injury so that the photographs would not be shown to the jury. However, Flores contradicted himself when he requested at trial that the District Court instruct the jury on the lesser included offense of assault which does not include the element of "serious bodily injury."

¶25 For these reasons, we conclude that the photographs were relevant and their probative value outweighed any prejudicial effect they may have had. Accordingly, we affirm the judgment of the District Court.

ISSUE 3

¶26 Did the District Court err when it limited the impeachment of Milton Harshbarger?

¶27 The standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. See State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836. See also State v. Mergenthaler (1994), 263 Mont. 198, 204, 868 P.2d 560, 563; State v. Later (1993), 260 Mont. 363, 364, 860 P.2d 135, 136.

¶28 During trial, Flores proposed that he be allowed to question defense witness Milton Harshbarger about a pending assault charge involving Harshbarger's ex-wife. Flores maintained that Harshbarger had a motive to testify favorably for the State because his misdemeanor assault charge could be elevated to a felony since his ex-wife suffered a broken nose in the assault. Flores argues that the District Court erroneously restricted his cross-examination of Harshbarger by not allowing extensive examination regarding the pending assault charge.

¶29 The District Court expressed concern about Harshbarger's ability to answer questions...