State v. McKeon, 96-330

• Decision Date: 08 May 1997
• Docket Number: No. 96-330,96-330
• Parties: STATE of Montana, Plaintiff and Respondent, v. Christopher Arthur McKEON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 643

938 P.2d 643

282 Mont. 397

STATE of Montana, Plaintiff and Respondent, v. Christopher Arthur McKEON, Defendant and Appellant.

No. 96-330.

Supreme Court of Montana.

Submitted on Briefs March 27, 1997.

Decided May 8, 1997.

Brian P. Fay, Angel, Screnar, Coil, Bartlett & Fay, Bozeman, for Appellant.

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena; Marty Lambert, Gallatin County Attorney, Bozeman, for Respondent.

HUNT, Justice.

Appellant Christopher Arthur McKeon (McKeon) was found guilty of one count of robbery and one count of felony theft following a jury trial in the Eighteenth Judicial District Court, Gallatin County, and was subsequently sentenced to a term of years at the Montana State Prison. McKeon appeals, arguing that the District Court made several incorrect evidentiary rulings which require that his guilty verdicts be reversed.

We affirm the District Court.

McKeon presents the following issues for our review:

1. Whether McKeon's booking photo, which was not part of the reciprocal discovery package, should have been admitted into evidence.

2. Whether photographs depicting McKeon with his alleged accomplices, brandishing firearms, should have been excluded as irrelevant and highly prejudicial.

3. Whether the prosecution should have been permitted to elicit testimony from the arresting officer speculating as to the most direct route McKeon may have traveled from Montana to Iowa.

4. Whether testimony identifying McKeon's vehicle as a stolen vehicle should have been excluded as "other crimes" evidence.

5. Whether the "cumulative error doctrine" as applied to the above-cited errors warrants a finding of reversible error.

BACKGROUND

At approximately 10:50 a.m. on November 5, 1994, two men robbed the Story Exxon gas station and convenience store in Bozeman, Montana. The clerk on duty at the time of the robbery testified at trial that the two men wore black knit caps pulled down to partly cover their faces. The caps had eye holes cut into them to allow the robbers to see. One of the robbers, robber # 1, was carrying a sawed-off shotgun partly concealed under his coat. Robber # 2 was carrying under his coat a sawed-off rifle. The clerk described robber # 1 as in his forties, approximately five feet, six inches tall and 160 pounds, and unshaven, with dark, grey-specked facial hair. The clerk described robber # 2 as a younger man, in his thirties, nearly six feet tall, and, like robber # 1, unshaven.

The robbers pointed their weapons at the clerk and demanded the money in the till and in the store safe. The robbers then made the clerk lie face down on the floor, where they bound his wrists and covered his eyes with duct tape. Before leaving the store with nearly $1460, the robbers took a ten-pack roll of Copenhagen snuff from the counter and a twelve-pack of Budweiser beer from the cooler. The clerk notified the authorities shortly after the robbers left, but a police investigation in Bozeman failed to result in either the identification or apprehension of any suspects in the robbery.

However, at approximately 8:00 p.m. on November 5, 1994, a Johnson County, Wyoming Deputy Sheriff, John Wohlbrandt, after investigating a stolen vehicle report, arrested Cecil Ashworth outside of a convenience store in Buffalo, Wyoming. At the time of his arrest, Ashworth was unkempt and unshaven, and had $450 in his pocket.

Deputy Wohlbrandt impounded the stolen vehicle. Officers from the Bozeman Police Department who were investigating the robbery there were dispatched to Buffalo the next day. A search of the stolen vehicle resulted in the seizure of a roll of Copenhagen, a sawed-off 22-caliber rifle and ammunition, an open twelve-pack of Budweiser beer, a brown knit cap with eye holes cut into it, and an Oregon license plate.

Meanwhile, on November 6, 1994, at approximately 10:00 p.m., an Iowa state trooper pulled over a black Ford Courier pick-up truck for speeding. The truck's lone license plate was from Oregon, and it was later determined that the license plate's mate was the Oregon plate found in the car Ashworth stole in Wyoming. It was also determined later that the pick-up was similar in color The pick-up was impounded, and subsequently searched. Iowa authorities initially discovered a sawed-off .12-gauge shotgun, 40 rounds of .12-gauge shotgun ammunition, a plastic bag with loose change, and a bag containing rolls of quarters, dimes, and nickels. They also found a hacksaw blade, a dark blue knit cap with eye holes cut into it, an atlas opened to the state of Iowa, a .22-caliber shell and a roll of duct tape. A subsequent search revealed a receipt from Sunshine Foods in Sioux Falls, South Dakota, dated November 6, 1994, and a receipt from Thrifty Motor Inn in Rapid City, South Dakota, dated November 5, 1994.

year, and design to the truck seen circling the area around the Story Exxon shortly before the robbery occurred there. The trooper ran a check on the truck, determined that it was stolen, and then arrested the driver, McKeon, and the female passenger, Debbie Ashley. At the time of their arrests, McKeon had $482 cash in his billfold and Ashley had $160 cash in her purse. A booking photograph was later taken of McKeon, which depicts a man with dark hair and dark, grey-specked facial stubble.

Ashworth and McKeon were charged with robbery and theft in connection with the Story Exxon hold up, and Ashley was charged with accountability for robbery. McKeon and Ashworth, identified as robbers # 1 and # 2, respectively, were tried separately, and Ashley, pursuant to a plea agreement, testified as a State witness in McKeon's trial. Ashley testified that she, McKeon and Ashworth traveled together through the western United States in the fall of 1994; that in October in Colorado she purchased a shotgun for McKeon and a rifle for Ashworth, weapons which the men later altered and used in the robbery in November; that she, McKeon and Ashworth drove to Bozeman in the black Ford Courier pick-up truck, and that McKeon and Ashworth, with masks on and their weapons under their jackets, entered the Story Exxon mid-morning on November 5, 1994; that after the robbery, the three of them drove to Gillette, Wyoming, where Ashworth separated from McKeon and Ashley; and, that she and McKeon continued on eastward until they were arrested in Eldora, Iowa.

Over McKeon's objections, the court admitted the following evidence relevant to this appeal: the booking photograph of McKeon taken after his arrest in Iowa; a photograph, taken in October 1994, of McKeon brandishing a shotgun and Ashworth brandishing a rifle; a photograph, taken in October 1994, of McKeon and Ashley; a photograph, taken in October 1994, of Ashworth and Ashley; testimony regarding the most direct route McKeon may have traveled from Montana to Iowa; and, testimony identifying as stolen the pick-up McKeon was driving when he was arrested in Iowa. Following the presentation of this and other evidence, the jury found McKeon guilty of the crimes charged. McKeon appeals.

STANDARD OF REVIEW

The district courts have broad discretion to determine whether or not evidence is relevant and admissible. State v. Oatman (1996), 275 Mont. 139, 143-44, 911 P.2d 213, 216. An item of evidence is relevant if it will have any value, as determined by logic and experience, in proving the proposition for which it is offered. Oatman, 911 P.2d at 216 (citation omitted). We review a district court's evidentiary ruling to determine whether the court has abused its discretion. Oatman, 911 P.2d at 216 (citation omitted). Even if evidence is improperly admitted, we will reverse the district court only if the admission of the evidence prejudiced the defendant. State v. Gray (1983), 202 Mont. 445, 449, 659 P.2d 255, 257. "The test of prejudicial error requiring reversal is this: Is there a reasonable possibility that the inadmissible evidence might have contributed to the conviction?" Gray, 659 P.2d at 257 (citation omitted).

ISSUE ONE

Whether McKeon's booking photo, which was not part of the reciprocal discovery package, should have been admitted into evidence.

At trial, McKeon's hair was a brownish-red color. The Story Exxon clerk and others McKeon contends the photograph was improperly admitted because it was not part of the reciprocal discovery package. Sections 46-15-322 and -323, MCA, require the prosecution and the defense to disclose all relevant information in order to "provide notice and prevent surprise." State v. Davidson (1994), 266 Mont. 404, 410, 880 P.2d 1331, 1335 (citing State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 462 P.2d 897).

who had glimpsed the robbers described robber # 1 as having dark hair. When Iowa State Trooper Pearson, who had arrested McKeon in Iowa, came to Bozeman to testify, he brought with him McKeon's booking photograph. When the State discovered that Trooper Pearson had the photo, it notified McKeon and provided him with the photo the day before trial. The photograph, which shows a dark-haired McKeon at the time of his arrest in Iowa, was admitted at trial and served to support the State's assertion that McKeon was indeed robber # 1, while at the same time undermined McKeon's assertion that he was not robber # 1 because his appearance was inconsistent with the descriptions given by the State's witnesses.

When deciding whether a photograph is admissible, the court must first determine whether the photograph is relevant and, second, whether the probative value of the photograph outweighs the possible prejudicial effect. Rule 403, M.R. Evid.; see also State v. Bristow (1994), 267 Mont. 170, 176, 882 P.2d 1041, 1045. Here, the relevancy of the photograph is not seriously disputed. This case is about the identity of robber # 1, and the photograph, taken two days after the commission of the robbery, establishes McKeon's identity around the time of the robbery and corroborates State...