State v. Flowers

• Decision Date: 24 February 2004
• Docket Number: No. 02-364.,02-364.
• Citation: 320 Mont. 49,2004 MT 37,86 P.3d 3
• Parties: STATE of Montana, Plaintiff and Respondent, v. Kevin J. FLOWERS, Defendant and Appellant.
• Court: Montana Supreme Court

86 P.3d 3

2004 MT 37

320 Mont. 49

STATE of Montana, Plaintiff and Respondent, v. Kevin J. FLOWERS, Defendant and Appellant.

No. 02-364.

Supreme Court of Montana.

Submitted on Briefs June 26, 2003.

Decided February 24, 2004.

For Appellant: Scott B. Spencer, Attorney at Law, Libby, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy County Attorney, Libby, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Appellant Kevin Flowers was convicted of one count of burglary, one count of theft and two counts of violating privacy in communications in the Nineteenth Judicial District Court, Lincoln County. Kevin appeals. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court err when it allowed Lieutenant Neuman to remain in the courtroom after the other witnesses had been excluded?

¶ 4 2. Did the District Court abuse its discretion when it admitted evidence of Kevin's actions at Jerry Croskrey's residence?

¶ 5 3. Did the District Court abuse its discretion when it admitted evidence of the handwritten phrase on the cardboard box top?

¶ 6 4. Did the District Court abuse its discretion when it admitted evidence that Pamela had a restraining order against Kevin prior to August 6, 2001?

¶ 7 5. Should Kevin be granted a new trial because of cumulative error?

¶ 8 6. Did the District Court abuse its discretion when it denied Kevin's motion for a directed verdict?

BACKGROUND

¶ 9 Kevin and Pamela Flowers were married in 1981. They have two teenage sons, Zachery and Caleb. In February of 2001, Pamela requested that Kevin move out of the family home, which was located in the Whispering Pines subdivision near Fortine, Montana (the Whispering Pines home). Pamela made this request because of problems she and Kevin were having with their marriage. Kevin moved out of the Whispering Pines home in March of 2001. Pamela filed for a divorce in July of 2001.

¶ 10 Sometime during the summer of 2001, Pamela began dating Jerry Croskrey. At 8:00 a.m. on August 6, 2001, Pamela was at Croskrey's home when she received a telephone call from her son Zachery. While speaking to Zachery, Pamela heard Kevin's voice in the background. Specifically, Pamela testified that Kevin stated: "Zachery, is that your Mom? Is that your Mom? Tell her I'm coming to get her and I'm going to kill her. I'm going to kill her." Upon hearing Kevin's statements, Pamela told Zachery to get away from Kevin. She then hung up the phone and informed Croskrey of the incident.

¶ 11 A few moments later the phone rang again. Croskrey picked up the phone and stated: "This is Jerry." Croskrey then heard Kevin's voice on the other end of the phone. Croskrey testified that Kevin threatened both him and Pamela, and used profanity. Croskrey further testified that after about two minutes, Kevin hung up the phone.

¶ 12 Pamela called the Lincoln County Sheriff's Office and advised them of the situation. Pamela also called a Justice of the Peace and attempted to get a restraining order against Kevin. Pamela and Croskrey remained at Croskrey's residence until approximately 11:40 a.m. when Croskrey left to go to the post office. Before he left, Croskrey and Pamela agreed that if Kevin were to arrive, Pamela would run to John Bower's home and request help. Bower was Croskrey's closest neighbor.

¶ 13 After Croskrey left, Pamela noticed Kevin's truck on the highway near Croskrey's residence. She responded by running to Bower's home and calling 911. A few minutes later, Pamela observed Kevin's truck pull out of Croskrey's driveway and back onto the highway. She then returned to Croskrey's residence. Croskrey arrived at approximately the same time. Croskrey and Pamela surveyed Croskrey's home and noted that the latch on the door was broken. They also noted that several items were missing, including Pamela's purse and a gold necklace.

¶ 14 Shortly thereafter, Lieutenant Matthew Neuman of the Lincoln County Sheriff's Department located Kevin in the driveway of the Whispering Pines home. When questioned by Lieutenant Neuman, Kevin admitted that he had been at Croskrey's residence earlier that day. Kevin further admitted that he had taken Pamela's purse. Lieutenant Neuman retrieved Pamela's purse from Kevin's truck and took him into custody.

¶ 15 After Kevin was taken into custody, Pamela and Croskrey traveled to the Whispering Pines home to check for damage. While there, they found the remaining items missing from Croskrey's home in Kevin's truck. Pamela and Croskrey also found a cardboard box top with the following phrase written on it: "Your [sic] just a hore [sic] and you have betrayed everyone around you and now you will die." Pamela testified that she recognized the handwriting as Kevin's.

¶ 16 On August 17, 2001, the Respondent, State of Montana, filed an information charging Kevin with one count of burglary, in violation of § 45-6-204, MCA (1999), two counts of theft, in violation of § 45-6-301, MCA (1999), and two counts of violating privacy in communications, in violation of § 45-8-213, MCA (1999). Kevin pled not guilty to all five counts on August 20, 2001.

¶ 17 In December of 2001, Kevin entered into a plea agreement with the State. The agreement was later withdrawn, however, and the case was set for trial. Prior to trial, Kevin filed several pre-trial motions, most of which were denied by the District Court. The case proceeded to jury trial on March 12, 2002. On March 13, 2002, the jury found Kevin guilty of one count of burglary, one count of theft, and two counts of violating privacy in communications. Kevin was sentenced on April 3, 2002. He appealed on April 5, 2002.

STANDARD OF REVIEW

¶ 18 This Court reviews a district court's application of Rule 615, M.R.Evid., which addresses the exclusion of witnesses, as we would a conclusion of law. State v. Osborne, 1999 MT 149, ¶ 28, 295 Mont. 54, ¶ 28, 982 P.2d 1045, ¶ 28. A district court's conclusions of law are reviewed for correctness. Osborne, ¶ 28.

¶ 19 We review a district court's evidentiary rulings to determine whether the district court abused its discretion. State v. Bingman, 2002 MT 350, ¶ 31, 313 Mont. 376, ¶ 31, 61 P.3d 153, ¶ 31. A district court has broad discretion to determine whether evidence is relevant and admissible. Absent a showing of abuse of discretion, we will not overturn a court's evidentiary determination. Bingman, ¶ 31.

¶ 20 The standard of review of a district court's denial of a motion for a directed verdict is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Johnson (1996), 276 Mont. 447, 450, 918 P.2d 293, 294. The decision to direct a verdict at the close of the State's case lies within the sound discretion of the district court and will not be disturbed on appeal absent an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307.

DISCUSSION

ISSUE 1

¶ 21 Did the District Court err when it allowed Lieutenant Neuman to remain in the courtroom after the other witnesses had been excluded?

¶ 22 Prior to trial in the instant case, Kevin requested that all of the witnesses be excluded from the courtroom. Kevin's request was made pursuant to Rule 615, M.R.Evid., which provides, in pertinent part:

At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of

....

(2) an officer or employee of a party which is not a natural person designated as its representative by its attorney[.]

¶ 23 The District Court granted Kevin's request and excluded the witnesses from the courtroom. However, because the State had designated Lieutenant Neuman as its representative, the District Court determined that he was exempt from Rule 615, M.R.Evid. Thus, Lieutenant Neuman was allowed to remain in the courtroom for the duration of the trial.

¶ 24 This Court has previously concluded that law enforcement officers may be exempt from Rule 615, M.R.Evid., under subsection (2) of the rule. State v. Claric (1995), 271 Mont. 141, 147, 894 P.2d 946, 950. However, we have also previously advised courts that in situations where the trial judge grants a motion to exclude witnesses, in the spirit of fairness, all witnesses who are to testify are to be excluded from the courtroom. State v. Radi (1975), 168 Mont. 320, 327, 542 P.2d 1206, 1210; Claric, 271 Mont. at 147, 894 P.2d at 950. In this case, Lieutenant Neuman testified as a witness for the State. Therefore, although Lieutenant Neuman was the State's designated representative, he was not exempt from Rule 615, M.R.Evid., because he testified as a witness for the State. Accordingly, the District Court erred when it allowed Lieutenant Neuman to remain in the courtroom after it excluded the other witnesses under Rule 615, M.R.Evid.

¶ 25 In State v. Van Kirk, 2001 MT 184, ¶ 37, 306 Mont. 215, ¶ 37, 32 P.3d 735, ¶ 37, we set forth a test for determining whether an error prejudiced a defendant's right to a fair trial and is therefore reversible. The first part of the test requires us to assess whether the type of error at issue is structural error or trial error. Van Kirk, ¶ 37. Structural error is error "that affects the framework within which the trial proceeds, rather than simply an error in the trial process itself." Van Kirk, ¶ 38. Structural error is typically of constitutional dimensions, precedes the trial, and undermines the fairness of the entire trial proceeding. Van Kirk, ¶ 38.

¶ 26 In contrast, trial error is error that typically occurs during the presentation of a case to the jury. Van Kirk, ¶ 40. Further, trial error is "amenable to...