State v. Francis

• Decision Date: 29 November 2001
• Docket Number: No. 99-698.,99-698.
• Citation: 36 P.3d 390,2001 MT 233,307 Mont. 12
• Parties: STATE of Montana, Plaintiff and Respondent, v. Steven FRANCIS, Defendant and Appellant.
• Court: Montana Supreme Court

36 P.3d 390

2001 MT 233

307 Mont. 12

STATE of Montana, Plaintiff and Respondent, v. Steven FRANCIS, Defendant and Appellant.

No. 99-698.

Supreme Court of Montana.

Submitted on Briefs December 21, 2000.

Decided November 29, 2001.

For Appellant: Chad Wright, Assistant Appellate Defender, Helena, MT.

For Respondent: Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, MT, Robert M. McCarthy, Silver Bow County Attorney, Butte, MT.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Stephen Robert Francis appeals from the Judgment entered by the Second Judicial District Court, Silver Bow County, convicting him of deliberate homicide. The following issue is dispositive of this appeal: Did the District Court commit reversible error when it admitted Derrick Steilman's out of court statements? We reverse and remand for a new trial.

BACKGROUND

¶ 2 On October 2, 1998, the State charged Stephen Francis with deliberate homicide in violation of § 45-5-102(1)(a), MCA. Francis pled not guilty. The day before Francis was charged, Detectives Douglas Conway and Jack Best interviewed Derrick Steilman. During the interview, Steilman informed them that he and Francis had murdered Paul Bischke to prove their worth to each other in conducting other criminal activity. Steilman was offered a plea agreement and his interview was videotaped.

¶ 3 A trial by jury was held on June 15-17, 1999. The State called Steilman as a witness, but he refused to answer any questions on the ground that he might incriminate himself. The State then sought the admission of out of court statements made by Steilman, including his videotaped interview with the police. The court admitted Steilman's statements. The jury found Francis guilty of deliberate homicide. The District Court sentenced Francis to the Montana State Prison for a term of 100 years and further ordered that Francis would be ineligible for parole or participation in the supervised release program. Francis appeals.

STANDARD OF REVIEW

¶ 4 We review a district court's evidentiary rulings to determine whether the court abused its discretion. State v. Weitzel, 2000 MT 86, ¶ 24, 299 Mont. 192, ¶ 24, 998 P.2d 1154, ¶ 24. Francis asserts that we should review the admission of Steilman's out of court statements de novo because the District Court "failed to put any explanation on the record for its ruling." We decline to do so. The State offered arguments on the admissibility of Steilman's statements. Francis' attorney countered the State's arguments. The court accepted the State's argument. We see no reason to use a different standard of review under these circumstances.

DISCUSSION

¶ 5 Did the District Court commit reversible error when it admitted Steilman's out of court statements?

¶ 6 The State called Derrick Steilman as a witness in Francis' trial. Steilman, however, refused to answer any questions on the ground that he might incriminate himself. The District Court excused Steilman. The State then sought the admission of out of court statements made by Steilman, including Steilman's videotaped statement to Detectives Conway and Best.

¶ 7 Counsel for Francis responded that Steilman's out of court statements were inadmissible hearsay and their admission would violate Francis' constitutional right of confrontation. The State noted that it had provided the court with a copy of a "Point Brief" in support of the admission of Steilman's out of court statements. Apparently, the Point Brief had been presented to the court before trial, but the State did not file a copy of the brief with the clerk of court nor did it provide defense counsel with a copy of the brief until defense counsel objected to the admission of Steilman's out of court statements at trial.¹ The State orally argued that Steilman's statements to "lay witnesses" (i.e., statements made to people other than the police) were admissible as statements of a co-conspirator made in furtherance of a conspiracy. Steilman's statements to Detectives Best and Conway, according to the State, were admissible because they were admissions against his penal interest.

¶ 8 The District Court admitted Steilman's out of court statements but refused to admit the videotape of Steilman's interview with Detectives Conway and Best and refused to admit a transcript of that interview. However, the videotape of Steilman's confession was subsequently shown to the jury pursuant to a motion by defense counsel who stated that, pursuant to the court's ruling on the admissibility of Steilman's out of court statements, the defense wanted the jury to have an opportunity to observe Mr. Steilman.

¶ 9 A. Did the District Court err when it admitted Steilman's out of court statements to Shannon Dinius?

¶ 10 After the District Court's ruling on the admissibility of Steilman's out of court statements, the State called Steilman's former girlfriend Shannon Dinius to testify. Dinius testified that within a week of Bischke's murder, she and Steilman were driving past the scene of the murder and Steilman pointed to it and told her that he and Francis had killed Bischke. Steilman told her that they had masks and weapons and that Francis had struck Bischke first. On cross-examination, Dinius testified that Steilman and Francis did it to "prove themselves to each other, have some kind of like a blood bond-type thing."

¶ 11 As noted above, the State orally argued to the District Court that Steilman's statements to "lay witnesses" were admissible as statements of a co-conspirator made in furtherance of a conspiracy. The State also maintained in its Point Brief that Steilman's statements to Dinius were admissible as statements against penal interest. On appeal, however, the State concedes that Steilman's statements, to the extent they consisted mainly of blaming Francis, were not admissible. See State v. Castle (1997), 285 Mont. 363, 372, 948 P.2d 688, 693

(stating that a declarant's collateral non-inculpatory statements are neither credible nor admissible, particularly when they implicate another person). Furthermore, the State admits the inadequacy of its argument that Francis' statements were admissible as those of a co-conspirator. Co-conspirators' statements made after attainment of the conspiracy's object are not admissible unless the movant can prove an express agreement existed among the co-conspirators to continue to act in concert to cover up the crime after its commission. See Grunewald v. United States (1957), 353 U.S. 391, 396-97, 77 S.Ct. 963, 969-70, 1 L.Ed.2d 931. The State offers no such proof.

¶ 12 Instead, the State insists that we should affirm the District Court's admission of Dinius' testimony because the court reached the right result even though it employed the wrong reasons. The State contends, for the first time on appeal, that Dinius' testimony was admissible pursuant to Rule 801(d)(2)(A), M.R.Evid. as testimony regarding out of court statements made by Francis. An "admission by party-opponent," under Rule 801(d)(2)(A) is a statement that is "the party's own statement" offered against the party. State v. Smith (1996), 276 Mont. 434, 441, 916 P.2d 773, 777. Our function is confined to determining whether there is substantial credible evidence to support the court's findings. Lacey v. Herndon (1983), 205 Mont. 379, 387, 668 P.2d 251, 255. Unfortunately, because the State did not assert Rule 801(d)(2)(A) to the District Court as a reason to admit Dinius' testimony, there is insufficient evidence on the record for us to ascertain whether Dinius' testimony was admissible as an admission by a party-opponent made by Francis.

¶ 13 At trial, Dinius first denied talking to Francis about the murder. Later, during cross-examination, Dinius testified as follows:

DEFENSE COUNSEL: Did you ever discuss anything regarding the 1996 homicide with Steve Francis?

DINIUS: No.

DEFENSE COUNSEL: And—

DINIUS: You mean like since then or then when it happened? Because when it had happened, they both had told me. He agreed right along with Derrick. Derrick would tell me, and Steve sat there and agreed with the whole thing.

DEFENSE COUNSEL: And where was this?

DINIUS: In the Bronco.

DEFENSE COUNSEL: You testified that you were alone in the Bronco with Mr. Steilman, didn't you?

DINIUS: Yes.

Defense counsel then proceeded to a different line of questioning.

¶ 14 Since the State never raised Rule 801(d)(2)(A) before the District Court, the court never reconciled the conflicts in Dinius' testimony concerning whether Francis confessed to Dinius or if he was present when Steilman did so. The court also made no findings concerning statements made by Francis. This record provides an inadequate basis for us to ascertain whether the District Court properly accepted Dinius' testimony under Rule 801(d)(2)(A).

¶ 15 Alternatively, the State argues that, pursuant to Rule 801(d)(2)(B), M.R.Evid., Dinius' testimony was admissible as testimony concerning out of court statements made by Steilman and adopted by Francis. Rule 801(d)(2)(B) provides that "[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement of which the party has manifested an adoption or belief in its truth". See Rule 801(d)(2)(B), M.R.Evid.; see also State v. Widenhofer (1997), 286 Mont. 341, 349, 950 P.2d 1383, 1388

. There are two reasons that the State's reliance on Rule 801(d)(2)(B), M.R.Evid., is misguided. First, the District Court failed to make an express determination that Francis adopted Steilman's statements as required. See Widenhofer, 286 Mont. at 349,

950 P.2d at 1388 (citing United States v. Schaff (9th Cir.1991), 948 F.2d 501, 505). Second, the State has not presented sufficient evidence to show that Francis adopted Steilman's statements. It is, at best, unclear whether Francis was even in the car at the time Steilman made the alleged statements. Given that the District Court made no findings on this matter, we...