State v. Gladue
| Decision Date | 05 January 1999 |
| Docket Number | No. 97-191,97-191 |
| Citation | 56 St.Rep. 1,972 P.2d 827,1999 MT 1 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Dale Leo GLADUE, Defendant and Appellant. |
| Court | Montana Supreme Court |
William F. Hooks, Appellate Defender Office, Helena, for Appellant.
Hon. Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Larry D. Epstein, Glacier County Attorney, Cut Bank, for Respondent.
¶1 Dale Leo Gladue (Gladue) appeals from the judgment entered by the Ninth Judicial District Court, Glacier County, on a jury verdict finding him guilty of felony assault, misdemeanor partner or family member assault and misdemeanor criminal trespass to property. We affirm.
¶2 Gladue raises the following issues:
¶3 1. Did the District Court abuse its discretion in denying Gladue's motion for a mistrial based on improper comments by the prosecutor during closing arguments?
¶4 2. Does sufficient evidence support the jury's verdict that Gladue was guilty of criminal trespass to property?
¶5 In the fall of 1994, Gladue became involved in an intimate relationship with Joyce Nanini (Nanini) and eventually moved into her home in Cut Bank, Montana. The relationship was tempestuous. On October 28, 1995, officers from the Cut Bank Police Department were summoned to Nanini's residence. Upon the officers' arrival, Gladue informed them that Nanini had pointed a pistol at him. Nanini responded that she had done so to protect herself because Gladue had assaulted her and that she had asked Gladue to leave, but he refused to do so. The officers confiscated the pistol and escorted Gladue from the house. Nanini subsequently was charged with felony assault for pointing the pistol at Gladue. Both Nanini's defense counsel and the county attorney recommended that Nanini and Gladue stay away from each other during the pendency of the assault proceedings against Nanini, but they continued to see each other. The relationship remained tumultuous, however, with Nanini periodically locking Gladue out of the house or telling him he no longer was welcome to live there.
¶6 During the evening of November 20, 1995, Gladue appeared at Nanini's home. Nanini testified that Gladue was extremely intoxicated and was carrying two beer bottles, one full and one nearly empty. She further testified that Gladue was not living in the house at that time, was not welcome there and had been told by the Glacier County Attorney earlier that day not to have any contact with her. Nanini did not know how Gladue got into her house that evening, but thought he might have picked up one of her children's keys. She testified that, while at her house, Gladue threatened her and tried to hit her. She ran to the back door, yelled for a neighbor to call the police and then told Gladue to leave. Gladue walked out the back door. Once outside, Gladue turned around and threw the full beer bottle at Nanini, hitting her on the left buttock and causing a bruise. He then left the premises.
¶7 The State of Montana (State) subsequently charged Gladue by information with the following offenses, all alleged to have occurred on or around November 20, 1995: Stalking, a felony; Intimidation, a felony; Partner or Family Member Assault, a misdemeanor; two counts of Felony Assault; Burglary, a felony; Tampering with Witnesses and Informants, a felony; and Criminal Trespass to Property, a misdemeanor. The information also charged Gladue with an additional count of Criminal Trespass to Property, a misdemeanor, alleged to have occurred on October 28, 1995. Gladue pleaded not guilty to all counts and trial eventually was set for July 15, 1996. The District Court released Gladue on bond pending trial on the condition, inter alia, that he have no contact with Nanini.
¶8 On the morning of trial, the prosecutor requested a continuance--on the basis that contact between Gladue and Nanini had occurred the prior evening in violation of the District Court's order--and the District Court granted the continuance. In addition, a second information was filed charging Gladue with the offenses of Intimidation, a felony, and Tampering with Witnesses and Informants, a felony, both alleged to have occurred on July 14, 1996. Gladue pleaded not guilty to both counts, the two cases were consolidated, and trial was set for September 23, 1996.
¶9 A jury trial was held on September 23, 24 and 25, 1996. At the close of the prosecution's case-in-chief, Gladue moved for a directed verdict on all counts. The District Court granted the motion as to one of the Felony Assault counts and denied it as to the remaining counts. At the close of trial, after the jury retired for its deliberations, Gladue moved for a mistrial, arguing that improper comments by the prosecutor during closing arguments had prejudiced his right to a fair trial. The District Court denied the motion. The jury returned a verdict finding Gladue guilty of Felony Assault, misdemeanor Partner or Family Member Assault and misdemeanor Criminal Trespass to Property, all having occurred on November 20, 1995; the jury acquitted Gladue of all other charges. The District Court sentenced Gladue and entered judgment and Gladue appeals.
¶10 1. Did the District Court abuse its discretion in denying Gladue's motion for a mistrial based on improper comments by the prosecutor during closing arguments?
¶11 The standard to be applied by a district court in determining whether to grant a defendant's motion for a mistrial is whether the defendant has been denied a fair and impartial trial. State v. Partin (1997), 287 Mont. 12, 951 P.2d 1002, 1004, 54 St.Rep. 1474, 1476. In turn, we review a district court's grant or denial of a motion for a mistrial to determine whether the court abused its discretion. Partin, 951 P.2d at 1005, 54 St.Rep. at 1476.
¶12 Gladue argued that several comments the prosecutor made in rebuttal closing argument were improper and prejudiced his right to a fair and impartial trial. The District Court concluded that, although the prosecutor's comments may have "pushed the envelope" of impropriety, they were harmless and did not prejudice Gladue's right to a fair and impartial trial. It denied the motion for a mistrial on that basis and Gladue asserts error. In determining whether the District Court abused its discretion in denying Gladue's motion for a mistrial, we address, first, whether the prosecutor's comments were improper and, second, whether any improper comments prejudiced Gladue's right to a fair and impartial trial.
¶13 In closing argument, Gladue's counsel noted that the felony assault charge against Nanini which arose out of the October 28, 1995, incident had been dismissed at some point prior to Gladue's July 15, 1996, trial date. In rebuttal closing argument, the prosecutor responded to defense counsel's argument by stating that "[s]ure, the State dropped charges against Joyce Nanini, because witnesses like Sheryl Hetler came forward and confirmed her story." Gladue's counsel objected to this statement on the basis that the prosecutor was arguing facts not in evidence. Before the District Court had an opportunity to rule on the objection, the prosecutor continued his argument as follows:
There was testimony to buttress it. Sheryl Hetler testified on the stand and her statement is an Exhibit, that Dale Gladue confirmed on a phone call that he had been dragging her around by the hair and knocking her around. It's my job to evaluate cases and decide which ones will fly and which ones won't. This one flies, that one didn't. You heard her testify there was no deals made. She was driving me nuts for two years, but at least Kathy Black can now explain it to me, it's that spousal abuse syndrome. She's caught in a real difficult situation. The one person held accountable here is the one that committed the crimes. There are two informations that have been filed and the evidence supports every charge in them, more than most cases we bring.
In addition to reiterating on appeal his contention that the prosecutor improperly argued facts not in evidence, Gladue also asserts that the prosecutor's rebuttal closing argument was improper because the prosecutor vouched for the credibility of Nanini as a witness and offered his opinion on the strength of the case against Gladue. We address Gladue's arguments regarding the propriety of the prosecutor's comments in turn.
¶14 Gladue argues that the prosecutor's comment that the felony assault charge against Nanini had been dismissed because witnesses had corroborated her account of what occurred on October 28, 1995, was improper because no evidence had been presented as to why the assault charge was dismissed. The record reflects that Nanini testified that the assault charge had been dismissed at some point prior to Gladue's original July 15, 1996, trial date; however, neither she nor any other witness testified regarding why the charge was dismissed. Consequently, Gladue is correct that the prosecutor's statement that the assault charge had been dismissed because witnesses confirmed Nanini's version of the events underlying the charge was not based on evidence of record. Moreover, it is improper for the prosecution to comment on evidence not of record during closing argument. See State v. Stringer (1995), 271 Mont. 367, 381, 897 P.2d 1063, 1071. We conclude that the prosecutor's comment that the assault charges against Nanini were dismissed because witnesses corroborated her account of what happened was improper.
¶15 Gladue next argues that the prosecutor's statements that Sheryl Hetler's testimony buttressed Nanini's version of the events of October 28, 1995, and that Kathy Black, the prosecution's expert witness on spousal...
To continue reading
Request your trial
-
State v. Ferguson
...on conflicts and contradictions in testimony. State v. Raugust, 2000 MT 146, ¶ 43, 300 Mont. 54, ¶ 43, 3 P.3d 115, ¶ 43 (citing State v. Gladue, 1999 MT 1, ¶ 15, 293 Mont. 1, ¶ 15, 972 P.2d 827, ¶ 15). Finally, the State argues that even if the prosecutor's remark was improper, the District......
-
State v. Sanchez
...prosecutor made improper comments, and, if so, whether the comments prejudiced the defendant's right to a fair and impartial trial. State v. Gladue, 1999 MT 1, ¶ 12, 293 Mont. 1, ¶ 12, 972 P.2d 827, ¶ A. The prosecutor's comments during closing argument ¶ 52 Sanchez argues that the prosecut......
-
State v. Ugalde
...to offer personal opinions regarding witness credibility. State v. Daniels, 2003 MT 247, ¶ 26, 317 Mont. 331, 77 P.3d 224;State v. Gladue, 1999 MT 1, ¶ 15, 293 Mont. 1, 972 P.2d 827;State v. Rodgers, 257 Mont. 413, 417, 849 P.2d 1028, 1031 (1993). Statements by a prosecutor expressing a per......
-
State v. Ariegwe
...effect of improper arguments may be cured when the jury has been admonished not to regard those statements as evidence," State v. Gladue, 1999 MT 1, ¶ 31, 293 Mont. 1, ¶ 31, 972 P.2d 827, ¶ 31. Thus, the specific issue here is whether the court's instruction was not sufficient to cure any p......