State v. Martin

• Decision Date: 14 November 1996
• Docket Number: No. 95-424,95-424
• Citation: 279 Mont. 185,926 P.2d 1380
• Parties: STATE of Montana, Plaintiff and Respondent, v. Leonard Lowell MARTIN a/k/a Len Martin, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1380

926 P.2d 1380

279 Mont. 185

STATE of Montana, Plaintiff and Respondent, v. Leonard Lowell MARTIN a/k/a Len Martin, Defendant and Appellant.

No. 95-424.

Supreme Court of Montana.

Argued Aug. 8, 1996.

Decided Nov. 14, 1996.

Stephen J. Nardi, Sherlock & Nardi, Kalispell, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Ass't Attorney General, Helena, Thomas Esch, Flathead County Attorney, Valerie Wilson, Deputy County Attorney, Kalispell, for Plaintiff and Respondent.

GRAY, Justice.

Len Martin (Martin) appeals from the judgment and sentence entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict finding him guilty of three counts of sexual assault, two counts of sexual intercourse without consent and two counts of deviate sexual conduct, all felony offenses. We affirm.

Martin raises the following issues on appeal:

1. Did the District Court abuse its discretion in denying Martin's motion to sever the charges against him?

2. Did the prosecutor engage in misconduct which deprived Martin of his right to a fair trial?

3. Did the District Court abuse its discretion in allowing the State to cross-examine a defense witness with regard to whether that witness provided false information in an unrelated criminal proceeding?

The State of Montana (State) filed two separate informations against Martin. All of the charges against Martin contained in the informations were sexual offenses by Martin against minor children. In Cause No. DC-94-197(B), the State charged Martin with one count of sexual intercourse without consent, two counts of sexual assault and three counts of deviate sexual conduct. In Cause No. DC-94-201(B), it charged Martin with two counts of sexual intercourse without consent and two counts of sexual assault. Martin pled not guilty to all of the charges.

The State moved to consolidate, contending that the cases were related; that the offenses in both occurred in the same time frame; and that consolidation would be in the interests of judicial economy. The District Court granted the State's motion without input from Martin and without holding a hearing. Thereafter, Martin moved to sever the counts against him into five separate cases for trial purposes. After conducting a hearing, the District Court concluded that Martin had not met his burden of proving that prejudice would result from joinder of all of the counts and denied Martin's motion to sever.

Prior to trial, Martin moved to dismiss three counts of deviate sexual conduct as multiplicitous, and one count of sexual assault based on a lack of evidence. The District Court denied his motion with regard to the deviate sexual conduct charges, but dismissed the sexual assault charge. Subsequently, pursuant to a motion by the State, the court dismissed one count of deviate sexual conduct.

All of the incidents forming the basis of the charges against Martin occurred at his cabin on the North Fork of the Flathead River. K.T. testified that she was alone with Martin at his cabin on several occasions when she was between the ages of seven and nine and, on such occasions, the following events occurred. Martin asked her to haul wood at his cabin and offered her a glass of water to drink before she did so. K.T. stated that the water smelled like alcohol. Later, Martin sat next to K.T. on the couch and put his hands on her legs and moved his hands beneath her underwear. K.T. asked Martin to remove his hands, but he refused. On another occasion, Martin laid on top of K.T. in his night clothes and moved his body around. K.T. would attempt to hide from Martin in the loft of the cabin. She did not tell anyone about what Martin had done to her because he had threatened to hurt her and her family.

C.H.'s grandparents owned a cabin near Martin's cabin. C.H. and Martin's stepson, Cody, were friends and C.H. went over to Martin's cabin on numerous occasions to see Cody. When C.H. was ten years old and visiting Martin's cabin in 1992, Martin asked Cody and C.H. if they would like to go outside and roast marshmallows. Martin built a fire and sent Cody to C.H.'s grandparents' cabin for marshmallows. Martin fondled C.H. and then led C.H. to some brush off of a trail near the cabin, where he continued to fondle C.H.'s penis, made C.H. rub his penis and had anal intercourse with C.H. C.H. did not tell anyone about the incident with Martin because Martin threatened to kill him and his family.

M.G. lived near Martin in Kalispell, Montana. When M.G. was thirteen years old, Martin asked M.G. if M.G. would go to his cabin and help him burn some brush. Martin bought M.G. a six-pack of beer on the way to the cabin and, after arriving there, gave M.G. several shots of whiskey. M.G. became very drunk and felt sick to his stomach. M.G. laid down on the floor and Martin rubbed his stomach; Martin told M.G. that he learned in alcohol classes that rubbing the stomach in different directions "make[s] the sickness go away." Martin began rubbing M.G.'s penis. M.G. passed out and, when he woke up, Martin was on top of him having anal intercourse with him. M.G. became sick and threw up.

K.G. is M.G.'s younger brother. When K.G. was eleven years old, Martin asked K.G. to help him fill in a ditch at the cabin. On the way to the cabin, Martin stopped and bought K.G. some Mad Dog wine. At the cabin, Martin suggested that K.G. lie down so he could rub K.G.'s stomach and make K.G. sober. Martin moved his hand down K.G.'s pants and fondled K.G.'s penis. K.G. became sick and threw up on his shirt.

At the close of the State's case-in-chief, the District Court dismissed one count of sexual intercourse without consent, allegedly committed against K.T., due to a lack of evidence. A jury found Martin guilty of the remaining seven charges, which included two counts of sexual intercourse without consent, three counts of sexual assault and two counts of deviate sexual conduct. Martin appeals.

1. Did the District Court abuse its discretion in denying Martin's motion to sever the charges against him?

Section 46-13-211(1), MCA, provides:

If it appears that a defendant or the prosecution is prejudiced by a joinder of charges or defendants in an indictment, information, or complaint or by a joinder for trial together, the court may order separate trials, grant a severance of defendants, or provide whatever other relief justice requires.

In determining whether to grant a motion to sever, trial courts must balance the possibility of prejudice to the defendant against the judicial economy resulting from a joint trial. State v. Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 226-27 (citing State v. Campbell (1980), 189 Mont. 107, 120, 615 P.2d 190, 198). This balancing process is within the discretion of the trial court and, absent an abuse of discretion, we will not substitute our judgment for that of the trial court. Richards, 906 P.2d at 227.

Judicial economy weighs heavily in the court's balancing process. Richards, 906 P.2d at 227 (citing Campbell, 615 P.2d at 198). Factors providing the basis for the predisposition for joint trials include expediting the administration of justice, reducing congestion in trial dockets, conserving judicial time, reducing the burden on jurors in terms of time and money sacrificed, and avoiding recalling witnesses who otherwise would only have to testify once. Richards, 906 P.2d at 227; Campbell, 615 P.2d at 198.

A criminal defendant moving for severance under § 46-13-211(1), MCA, bears the burden of proving that joinder of the charges is prejudicial. See State v. Slice (1988), 231 Mont. 448, 451, 753 P.2d 1309, 1311. It is not sufficient that the defendant prove some prejudice or that he or she stands a better chance of acquittal if separate trials are held. Richards, 906 P.2d at 227. To satisfy this burden, the defendant must prove that the prejudice was so great as to prevent a fair trial. Richards, 906 P.2d at 227 (citations omitted). As a result of the defendant's burden of proof, the strong pressure in favor of joinder of charges exerted by considerations of judicial economy and the deference afforded trial courts, we seldom reverse a trial court's denial of a criminal defendant's motion to sever. See Campbell, 615 P.2d at 198 (citations omitted).

Three types of prejudice may result from the consolidation of charges. Richards, 906 P.2d at 227. First, a jury may consider the criminal defendant facing multiple charges a "bad man" and accumulate evidence until it finds him guilty of something. Second, a jury may use proof of guilt on one count to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. Third, prejudice may occur when the defendant wishes to testify on his or her own behalf on one charge but not another. Richards, 906 P.2d at 227 (citing State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509). We consider each type of prejudice below vis-a-vis Martin's arguments and the evidence presented.

A. Accumulation of Evidence

The first type of prejudice occurs where the jury accumulates evidence to convict the defendant of something because he is a bad person. The cumulative effect of evidence is not sufficient, standing alone, to warrant severance. Richards, 906 P.2d at 227.

Martin argues that joinder of the multiple charges and the use of overlapping evidence invited the jury to convict him because he was a bad person. He does not establish that this type of prejudice occurred, however, and a bald assertion that the multiple charges and overlapping evidence "invited" the jury to convict him is insufficient to meet his burden of demonstrating the existence of this first type of prejudice.

B. Use of Inadmissible Evidence

The second type of prejudice occurs when the jury uses proof of guilt on one count to convict the defendant of another count even though the evidence would have been inadmissible at a...