State v. Gray

• Decision Date: 23 December 1983
• Docket Number: No. 83-04,83-04
• Citation: 207 Mont. 261,40 St.Rep. 2023,673 P.2d 1262
• Parties: STATE of Montana, Plaintiff and Respondent, v. James E. GRAY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1262

673 P.2d 1262

207 Mont. 261

STATE of Montana, Plaintiff and Respondent, v. James E. GRAY, Defendant and Appellant.

No. 83-04.

Supreme Court of Montana.

Submitted Oct. 25, 1983.

Decided Dec. 23, 1983.

John E. Riddiough argued, Missoula, for defendant and appellant.

Mark Murphy argued, County Prosecutor Services, Helena, for plaintiff and respondent.

HASWELL, Chief Justice.

Following a jury trial in the District Court of Ravalli County, defendant was convicted of criminal mischief, a felony, by reason of damaging a pickup with the purpose of defrauding an insurer. Defendant appeals from the judgment of conviction.

This is an appeal following the second trial of this case. This Court reversed the first conviction of defendant for procedural errors in admitting "other crimes" evidence. State v. Gray (Mont.1982), 643 P.2d 233, 39 St.Rep. 622.

The present case is a retrial of defendant on the original charge before a different judge and jury. In essence, the State's evidence indicated that defendant considered his pickup a "lemon" and wanted to get rid of it; that his insurance on the pickup was being cancelled effective August 31, 1980; that on August 28, he intentionally drove the vehicle over a steep bank on the Skalkaho road to collect the insurance; that defendant was forced off the road by a truck hauling a horse trailer; that thereafter the insurance adjuster determined that the pickup was not a total loss but was repairable; and thereafter one Terry Atkins vandalized the pickup with defendant driving Atkins to its location and acting as a lookout.

Defendant's evidence essentially consisted of a refutation of the State's evidence by impeachment of the State's witnesses together with defendant's testimony concerning the events in question. Basically, defendant testified that he left his trailer on the evening of August 28 in a rage to drive up to Skalkaho Falls to cool off; that he did not like Stephen Forsman and was mad at his stepdaughter Leala for running around with Forsman; that they followed him in another vehicle and when he looked over his shoulder to see if they were still following him, his pickup went over the bank on the Skalkaho road and injured him; that the story about being forced off the road by a truck and horse trailer was entirely the invention of Stephen Forsman but he went along with it to protect Forsman. Defendant denied any complicity in later vandalizing his pickup and denied prior knowledge of cancellation of the insurance on his pickup.

Defendant advances three specifications of error:

1. Defendant is entitled to a new trial because of prosecutorial misconduct resulting in the admission in evidence of defendant's parole status.

2. The refusal of the court to instruct the jury on the lesser included offense of unsworn falsification to authorities, a misdemeanor, constitutes reversible error.

3. The admission of photographs of defendant's truck after it had been vandalized constitutes reversible error.

At a hearing in chambers on the first day of trial, the following colloquy took place between the opposing attorneys concerning defendant's parole status:

"MR. RIDDIOUGH: I would have one final request, Your Honor, and that would be with regards to the fact that Mr. Gray was on parole at the time that this offense was allegedly committed and I would request that the State caution its witnesses before testimony to not mention during their testimony anything regarding any prior convictions or any parole or parole revocaton.

"THE COURT: Mr. Murphy?

"MR. MURPHY: Your Honor, in the trial of the first case Mrs. Townsend took great pains to sanitize the record of Mr. Gray's previous record. In fact, there is an indication on the part of James Bailey that he refused to answer a question put to him by Mrs. Townsend concerning what he did next. What he did next was contact Ralph Fisher, the Defendant's parole officer. We will again attempt to sanitize the record of any of those references and I will caution my witnesses and attempt to avoid any mention of that.

"MR. RIDDIOUGH: That's sufficient for me.

"THE COURT: Okay."

Leala Gray, defendant's stepdaughter, was called as a witness in the State's case-in-chief. During direct examination by the prosecutor, the following exchange took place regarding Stephen Forsman, another of the State's witnesses:

"Q. And so you proceeded back. Did you talk about anything else on the way back?

A. Well, Steve was mumbling about, what am I going to do. I don't want to be in trouble. I don't want to get involved.

"Q. Did that make sense to you? A. Yeah.

"Q. How did you feel that he would be in trouble? A. The conversation at dinner-time would make him feel like he could possibly get in trouble.

"Q. With your father, with the authorities, what kind of trouble? A. Well, see, what we talked about at dinnertime was the trouble we've been having with the brown truck and the argument dad has with C & M Arrow and him being on parole and he knew that since dad wrecked the truck, that would affect his parole and that would bring in the law and Steve didn't like the law--doesn't like the law."

Later, during the same examination of this witness by the prosecutor in the State's case-in-chief, the following exchange took place:

"Q. Okay. But you told this story to Officer Bailey because you didn't want to lie; is that right? A. Because I wanted to help Steve stay out of the scene of this whole thing. I guess the word I'm looking for is cover for Steve.

"Q. And what had Steve done wrong? A. Well, he told them that there was a truck and trailer involved that wasn't.

"Q. And he told them that because he was afraid he was going to get in trouble? A. Uh-huh.

"Q. For what? A. Because he knew about the argument my dad had with C & M over the truck and he also knew that my dad was on parole."

At the conclusion of the direct examination of Leala Gray, appellant moved for a mistrial in chambers outside the presence of the jury based upon the eliciting of the testimony of defendant's parole status by the prosecutor as indicated above.

The court denied the motion for mistrial but gave a cautionary instruction as follows:

"Ladies and gentlemen of the jury, you have received some testimony in this case that the accused, James Gray, was on parole at the time that the events occurred in the instant case.

"You are instructed to entirely disregard such testimony. The status of the accused is totally irrelevant and immaterial to any issue in the case before you and to consider such testimony in your deliberations would be violative of your oaths as jurors."

Defendant correctly points out that the prosecutor breached his promise to caution Leala Gray against mentioning her stepfather's parole status. Additionally, questions were asked on two occasions during Leala Gray's direct examination by the prosecutor that elicited the fact that defendant was on parole. Defendant argues that the evidence that he was on parole at the time of the commission of the crime charged is evidence of other crimes that must pass both the test of admissibility and the test of proper notice before it can be introduced in evidence. State v. Just (1979) 184 Mont. 262, 602 P.2d 957; State v. Case (Mont.1980), 621 P.2d 1066, 37 St.Rep. 2057; State v. Gray (Mont.1982), 643 P.2d 233, 39 St.Rep. 622. Additionally, the prosecutor stated that he purposely did not talk to Leala Gray prior to her testimony, although he had promised to caution her against disclosing her step-father's parole status.

It is clear that misconduct by a prosecutor may form the basis for granting a new trial where the prosecutor's actions have deprived defendant of a fair and impartial trial. State v. Bain (1978), 176 Mont. 23, 575 P.2d 919; State v. Toner (1953), 127 Mont. 283, 263 P.2d 971; State v. Hart (Mont.1981), 625 P.2d 21, 38 St.Rep. 133.

The prosecution admits that it breached its promise to caution Leala Gray against disclosing her father's parole status during her testimony. The prosecution argues that the State did not intentionally fail to warn Ms. Gray not to mention her stepfather's parole status; that the State did not purposely elicit from her the testimony concerning her stepfather's parole status; that any prejudice caused by the mention of defendant's status was eliminated by the court's cautionary instruction; and that defense counsel had more than an equal opportunity by virtue of numerous contacts with Leala Gray to prevent this error by warning her himself and that defense counsel also failed to warn her. The State also argues that the error was harmless in any event.

We find no excuse for the failure of the prosecution to warn Leala Gray not to mention her stepfather's parole status as the prosecutor had promised. However, we hold that under the circumstances of this case the District Court did not abuse its discretion denying the motion for mistrial for testimony concerning defendant's parole status. Rule 403, Mont.R.Evid., provides the exclusion of relevant evidence that may prejudice the jury. However, as recognized by the Commission on Evidence, "a key element of this rule is the discretion of the judge in deciding whether otherwise relevant evidence is to be excluded." In State v. Rollins (1967), 149 Mont. 481, 428 P.2d 462, this Court held that on questions of this nature, the "trial judge should have latitude of discretion." 149 Mont. at 484, 428 P.2d 462; see also, State v. Austad (Mont.1982), 641 P.2d 1373, 39 St.Rep. 356; State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125; Wallin v. Kenyon Estate (1974), 164 Mont. 160, 519 P.2d 1236.

As a matter of law, we cannot hold that the District Court abused its discretion in denying the motion for a mistrial. First of all, the judge stated that from observation of the jury, the impact of Leala Gray's testimony concerning the defendant's parole status was minimal. Also, the court cautioned the jury to disregard all evidence of defendant...