State v. Green
| Decision Date | 01 November 2022 |
| Docket Number | DA 20-0389 |
| Citation | 2022 MT 218 |
| Parties | STATE OF MONTANA, Plaintiff and Appellee, v. GREGORY SCOTT GREEN, Defendant and Appellant. |
| Court | Montana Supreme Court |
Submitted on Briefs: July 13, 2022
Appeal From: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 19-429 Honorable Jessica T. Fehr, Presiding Judge
For Appellant: Chad Wright, Appellate Defender, Michael Marchesini, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Ann-Marie McKittrick Deputy County Attorney, Billings, Montana
¶1 Gregory Scott Green (Green) appeals a Thirteenth Judicial District Court order denying Green's motion to prevent silent security camera footage from being made available to the jury during deliberations and subsequent Judgment of guilty for the charge of deliberate homicide.
¶2 We restate the issue on appeal as follows:
Did the District Court abuse its discretion in allowing the jury to review silent video footage during deliberations?
¶3 We affirm.
¶4 The State charged Green with the deliberate homicide of his former girlfriend, Laura Johnson (Johnson), after a neighbor's security camera captured footage showing Johnson enter the residence she shared with Green and fail to subsequently emerge followed by footage of Green undertaking various suspicious activities.
¶5 Johnson moved in with Green in Billings near the end of the summer of 2018. On September 4, she texted her father that she and Green had broken up and that she was staying in the "back bedroom" of Green's trailer until she could get her own apartment. On Thursday, September 13 Johnson worked her shift as a delivery driver for Papa John's. A neighbor's surveillance video mounted on a residence across the street from and pointed in the direction of Green's garage and trailer captured Johnson coming home from work and entering Green's trailer, while Green was in the yard. Though the video footage had frequently captured Johnson entering and exiting Green's trailer up to this point, no footage after this moment ever shows Johnson leave the residence alive. Johnson was never seen or heard from following September 13, 2018.
¶6 The footage depicts Green engaged in unusual activity at the house that night and the following day, including carrying a large, heavy object with both arms, cradle style, and placing it into the back seat of his truck, loading the truck with a shovel and other items, including what appeared to be two red suitcases, and lighting one object on fire in the driveway before driving off. The next day, a Saturday, Green again placed a shovel into the back of the truck before leaving for much of the day.
¶7 A Wal-Mart surveillance camera showed Green, with a large abrasion on his cheek, purchasing a paint tray on the night of September 13. Cell phone records from Johnson's cell phone, which typically contained a significant number of outgoing and incoming calls, had no call activity after September 13. Her phone GPS began moving after surveillance footage showed Green driving his truck away from the residence subsequent to loading it with various items on September 14, before ceasing to emit a signal. Upon examining Green's residence pursuant to a search warrant, police noted that the carpet in the back bedroom where Johnson had lived appeared to have been hastily replaced. New cardboard had been placed over the garage windows. When police interviewed Green, he stated that he had returned home on September 12 or 13 to find Johnson's vehicle in the garage as usual and discovered that Johnson had taken her two red suitcases and left, which he attributed to her struggles with addiction. He denied having left his home to go anywhere outside of work in the days following Johnson's disappearance. When police confronted Green with the contradictory information gained from the surveillance video, which-in addition to showing him taking multiple trips after September 13-showed him moving Johnson's vehicle from the driveway into the garage and carrying what appeared to be her two red suitcases out to the truck, Green stopped the interview.[1] The next day, Green left Billings in the white Buick that Johnson had formerly driven, and was eventually tracked going to Henderson, Nevada. He also abandoned his job.
¶8 Forensic testing indicated the presence of blood on the inside edge of the rear driver's side door of the pickup truck Green had been seen loading. DNA testing revealed a high likelihood that the blood came from a biological child of Johnson's parents.
¶9 Before trial, Green filed a motion in limine to prevent the video footage from the neighbor's surveillance camera from going into deliberations with the jury. The District Court denied this motion, finding that the silent video was akin to a series of photographs and was not testimonial. However, the District Court granted Green's request that the State and its witnesses be precluded from offering any interpretation of the video's contents prior to closing argument.[2] ¶10 At the end of a seven-day trial, the prosecution offered a closing argument that included its theory of the case that the security camera footage showed Green carrying Johnson's body into the truck.[3] Defense counsel argued in closing that Johnson's disappearance was due to her struggles with addiction and mental health and contended that the State's evidence failed to prove beyond a reasonable doubt that Green had killed Johnson. The jury was given the silent security camera footage and instructions for operating the viewing system, which included how to zoom in on portions of the video frame. After three hours of deliberation, the jury found Green guilty of deliberate homicide. The District Court sentenced Green to Montana State Prison for 100 years. Green appeals.
¶11 We review a district court's decision allowing exhibits to be taken into jury deliberations for an abuse of discretion. State v. Stout, 2010 MT 137, ¶ 26, 356 Mont. 468, 237 P.3d 37 (citing State v. Bales, 1999 MT 334, ¶¶ 12, 25, 297 Mont. 402, 994 P.2d 17). An abuse of discretion occurs when a court acts arbitrarily, unreasonably, or without the employment of conscientious judgment, resulting in substantial injustice. State v. Nordholm, 2019 MT 165, ¶8, 396 Mont. 384, 445 P.3d 799.
¶12 Did the District Court abuse its discretion in allowing the jury to review silent video footage during deliberations?
¶13 Green argues on appeal that the District Court abused its discretion by allowing the silent video footage from the neighbor's security camera to go back to the jury room during deliberations. As a general rule, "[u]pon retiring for deliberation, the jurors may take with them the written jury instructions read by the court," their own notes taken during the trial, and "all exhibits that have been [admitted] as evidence" during the trial and which "in the opinion of the court will be necessary" to their deliberations. Section 46-16-504 MCA; State v. Hoover, 2021 MT 276, ¶ 16, 406 Mont. 132, 497 P.3d 598.
¶14 A common law limitation, not displaced by § 46-16-504, MCA, generally disallows unsupervised or unrestricted jury review or replay of witness testimony or other evidence that is "testimonial in nature" during deliberations. Hoover, ¶ 16. We have applied this rule to audio recordings of a police interview, see Bales, ¶¶ 9, 24, written witness statements, see State v. Herman, 2009 MT 101, ¶¶ 14, 39, 350 Mont. 109, 204 P.3d 1254, audio recordings of witness statements, see State v. Mayes, 251 Mont. 358, 374, 825 P.2d 1196, 1206 (1992), transcripts of testimony, see State v. Harris, 247 Mont. 405, 416-18, 808 P.2d 453, 459 (1991); State v. Greene, 2015 MT 1, ¶¶ 9, 21, 25, 378 Mont. 1, 340 P.3d 551; State v. Evans, 261 Mont. 508, 510-13, 862 P.2d 417, 418-20 (1993), video footage with audio of a defendant's police interrogation, see Hoover, ¶¶4, 5, 21, and police body camera videos that captured conversations between an officer and the defendant and other witnesses. See Nordholm,¶¶ 6, 10-11. See also Stout, ¶ 30 ). The rule serves to prevent a jury from placing "undue emphasis" on testimonial evidence reviewed during deliberation "to the exclusion of the evidence presented by other witnesses" for which the jury must rely upon its collective memory during deliberations. Nordholm, ¶ 10; Hoover, ¶ 16 (citing Nordholm, ¶ 14; Harris, 247 Mont. at 416, 808 P.2d at 459).
¶15 Green does not argue that the silent surveillance video footage at issue is "testimonial" or "testimonial in nature" as we have used the term for purposes of determining whether an item should be made available to the jury during deliberations. It contains no recorded communications from one person to another, either in verbal, written, or any other communicative form. However Green argues on appeal that even evidence that is not testimonial or testimonial in nature may be improper for jury review during deliberations if the risk of undue emphasis is sufficiently great, as Green contends was the case here. Green points to no cases in which we have even considered the risk of undue emphasis stemming from allowing an exhibit not deemed to be testimonial or testimonial in nature to accompany the jury into the jury...
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