State v. Maier

• Decision Date: 18 March 1999
• Docket Number: No. 97-423,97-423
• Citation: 977 P.2d 298,1999 MT 51
• Parties: STATE of Montana, Plaintiff and Respondent, v. Lloyd Scott MAIER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 298

977 P.2d 298

1999 MT 51

STATE of Montana, Plaintiff and Respondent, v. Lloyd Scott MAIER, Defendant and Appellant.

No. 97-423.

Supreme Court of Montana.

Submitted on Briefs Nov. 24, 1998.

Decided March 18, 1999.

Antonia P. Marra; Bell & Marra, Great Falls, for Appellant.

Hon. Joseph P. Mazurek, Attorney General Micheal S. Wellenstein, Ass't Attorney General, Helena, Brant Light, Cascade County Attorney, Julie Macek, Deputy Cascade County Attorney, Great Falls, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶1 Lloyd Maier (Maier) appeals from the judgment of the Eighth Judicial District Court, sentencing him to prison on two counts of Attempt, Deliberate Homicide.

¶2 We affirm.

¶3 We restate the issues as follows:

¶4 1. Whether the District Court violated Maier's right to confrontation under the United States and Montana Constitutions.

A. Statements that Marty Hayworth made to police.

B. Statements that Nick Burwell made to police.

C. Statements that Robert Bradford made to police.

D. Marty Hayworth's testimony.

¶5 2. Whether the District Court erred in restricting Maier's cross-examination of Nick Burwell.

¶6 3. Whether the District Court abused its discretion in refusing to grant a mistrial because of improper testimony.

¶7 4. Whether the District Court erred in giving jury instructions 12 and 16.

¶8 5. Whether Maier was denied his constitutional right to speedy trial.

¶9 6. Whether the District Court erred in sentencing Maier as a persistent felony offender.

¶10 7. Whether the District Court abused its discretion in admitting expert testimony.

¶11 8. Whether the District Court erred in allowing the State to vouch for a witness' character and to characterize Maier as a liar during its closing argument.

¶12 9. Whether there was sufficient evidence to support the verdict.

Standard of Review

¶13 The standard of review for evidentiary rulings is whether a district court abused its discretion. See Seizure of $23,691.00 in U.S. Currency (1995), 273 Mont. 474, 479, 905 P.2d 148, 152.

Factual and Procedural Background

¶14 On the evening of August 12, 1995, Nick Burwell (Burwell), Maier and Marty Hayworth (Hayworth) visited at Maier's trailer in Great Falls. They left his trailer in Hayworth's van, which only had front windows, bringing with them a semi-automatic SKS-type rifle. Hayworth drove them to Shadow Mogensen's house, where he made a phone call. Shadow Mogensen (Mogensen)went into the van to visit with Maier. She saw the rifle lying between the front seats. Maier was in the front passenger seat. When the three men departed, Hayworth drove and Maier was in the front passenger seat. On that same evening, Robert Bradford (Bradford) and a friend, Brian Kunesh (Kunesh)were riding in a car in Great Falls. Very shortly after leaving Mogensen's house, Hayworth and Maier saw Bradford and approached him. Shots were fired from the van at the car, and Bradford and Kunesh each received leg wounds. Great Falls Police Detectives interviewed Maier and Hayworth. Hayworth and Maier initially told the police, in separate interviews, that Burwell fired shots from the van at Kunesh and Bradford. Hayworth later told the police that Maier, not Burwell, had fired the shots. The police arrested Hayworth and Maier. In March, 1996 Hayworth was convicted of two counts of attempted deliberate homicide by accountability.

¶15 During Maier's trial, Maier made a motion in limine to exclude hearsay statements by Hayworth. Maier contended that Hayworth would not testify and that statements Hayworth made to police and a statement that he made in his van before the shooting were therefore hearsay. At the motion hearing, the District Court was advised that Hayworth would assert his Fifth Amendment privilege at trial. The District Court ruled that Hayworth had no Fifth Amendment privilege because he had already been convicted. Maier argued that Hayworth had a Fifth Amendment privilege because he could be charged with perjury if his testimony varied from his testimony at his own trial. Maier also contended that if Hayworth asserted his Fifth Amendment privilege, Maier would be greatly prejudiced and his right to confront witnesses violated. The District Court asked the State whether it would grant Hayworth immunity from perjury. The State responded that immunity was generally not granted for perjury. However, the State guaranteed that it would not prosecute Hayworth for perjury. The State moved the District Court for a grant of immunity from perjury to Hayworth, and the District Court granted the motion. Maier did not object.

¶16 Following a jury trial in April, 1996, Maier was found guilty of two counts of Attempt, Deliberate Homicide. The District Court sentenced Maier to 70 years prison on Count one, Attempt (Deliberate Homicide) and, consecutive to Count one, to 15 years prison for Use of a Weapon, with five years suspended. The District Court also sentenced Maier to 70 years prison on Count two, Attempt (Deliberate Homicide) and, consecutive to Count two, to 15 years prison for Use of a Weapon, with five years suspended. The District Court ordered that the sentences for Counts one and two run concurrently.

Discussion

¶17 1. Whether the District Court violated Maier's right to confrontation under the United States and Montana Constitutions.

¶18 The Confrontation Clause of the Sixth Amendment gives the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Montana's Constitution provides that "[i]n all criminal prosecutions the accused shall have the right ... to meet the witnesses against him face to face." Art. II, Sec. 24, Mont. Const.

¶19 In California v. Green, the Court considered whether the admission of prior statements by a witness who was available for cross-examination at trial impaired a defendant's Sixth Amendment right of confrontation. California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489. Defendant Green was charged with furnishing marijuana to a minor, Porter. Porter was the chief witness against Green; police had arrested Porter for selling marijuana to an undercover officer. At Green's preliminary hearing, Porter identified Green as his marijuana supplier. Green's attorney cross-examined Porter. At Green's trial, however, Porter was " 'markedly evasive and uncooperative.' " Green, 399 U.S. at 151, 90 S.Ct. at 1931, 26 L.Ed.2d at 493. Porter testified at Green's trial that Green called him and asked him to sell unidentified "stuff." Green, 399 U.S. at 152, 90 S.Ct. at 1932, 26 L.Ed.2d at 493. Porter admitted that he obtained marijuana after a phone conversation with Green, but when asked whether Green supplied him with marijuana, he said he was unsure how he got the marijuana because he was high then on LSD. On direct examination, the State read excerpts from Porter's preliminary hearing testimony that were admitted for the truth of the matter. Green cross-examined Porter.

¶20 The Green Court concluded that "it is [the] literal right to 'confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause." Green, 399 U.S. at 157, 90 S.Ct. at 1934-35, 26 L.Ed.2d at 496. Further, the Green Court concluded that "the Confrontation Clause does not require excluding from evidence the prior statements of a witness who concedes making the statements, and who may be asked to defend or otherwise explain the inconsistency between his prior and his present version of the events in question, thus opening himself to full cross-examination at trial as to both stories." Green, 399 U.S. at 164, 90 S.Ct. at 1938, 26 L.Ed.2d at 501.

¶21 In United States v. Owens (1988), 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951, the Court addressed whether the Confrontation Clause was violated "by admission of an identification statement of a witness who is unable, because of a memory loss, to testify concerning the basis of identification." Owens, 484 U.S. at 564, 108 S.Ct. at 845, 98 L.Ed.2d at 961. In explaining why the Confrontation Clause was not violated, the Owens Court concluded that

"[t]he Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion. To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination."

Owens, 484 U.S. at 558, 108 S.Ct. at 842, 98 L.Ed.2d at 957 (citation omitted). With the foregoing decisions in mind, we consider the evidence that Maier claims was admitted in violation of the Confrontation Clause.

¶22 A. Statements that Marty Hayworth made to police.

¶23 Maier contends that the District Court erred in admitting Hayworth's statements to Great Falls Police Detectives Hollis and Steffens, because they are hearsay and unreliable. Maier argues that these statements are not admissible as co-conspirator statements. Maier also argues that the police testified about statements by Hayworth concerning matters that the State did not ask Hayworth when he testified, and that such statements by Hayworth were inadmissible. Further, Hayworth's refusal to answer some questions did not make his prior statements to police inconsistent with his testimony.

¶24 The State responds that the District Court did not err in admitting Hayworth's statements to police because they are prior inconsistent statements that are admissible under Rule 801(d)(1)(A), M.R.Evid. The State asserts that Hayworth's denials of some statements he made to police, his claims that he could not remember some prior statements, and his explanations of his previous statements rendered his testimony inconsistent with the statements he gave police.

¶25 Rule 801(d)(1)(A), M.R.Evid., provides:

Statements which are not hearsay. A statement is not hearsay if: (1) Prior...