State v. Misner

• Decision Date: 13 September 2007
• Docket Number: No. 05-385.,05-385.
• Citation: 168 P.3d 679,2007 MT 235
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Mark Neil MISNER, Defendant and Appellant.

168 P.3d 679

2007 MT 235

STATE of Montana, Plaintiff and Respondent, v. Mark Neil MISNER, Defendant and Appellant.

No. 05-385.

Supreme Court of Montana.

Submitted on Briefs January 4, 2007.

Decided September 13, 2007.

For Appellant: Kristina Neal, Assistant Appellate Defender, Helena, Montana.

For Respondent: The Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Brant Light, Cascade County Attorney, Great Falls, Montana.

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 The State of Montana charged Mark Neil Misner with two counts of deliberate homicide in the deaths of Danny Hutchison and Wanda Lynn Hutchison. A jury in the Eighth Judicial District Court, Cascade County, found Misner guilty of both counts, and the court entered judgment against him. Misner appeals. We affirm.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Did the District Court abuse its discretion in denying Misner's motion for a new trial?

¶ 4 2. Is Misner's claim of ineffective assistance of counsel meritorious?

¶ 5 3. Did the District Court err in refusing one of Misner's proposed jury instructions?

BACKGROUND

¶ 6 On the afternoon of November 20, 2003, Mark Neil Misner and his friend and landlord Danny Hutchison went to the Heidelberg Bar in Great Falls, Montana, where they drank, played pool, and danced to jukebox songs. Misner was renting a room in Hutchison's house a few blocks from the bar. Misner and Hutchison later were joined at the bar by Hutchison's ex-wife, Wanda Lynn Hutchison. Hutchison and Wanda Lynn discussed the possibility of her moving back into Hutchison's house and helping him make mortgage payments on it to avoid foreclosure. Misner left the bar between 4:30 and 5:30 p.m., and the others stayed until approximately 8:30 p.m.

¶ 7 Just after 2 a.m. the next morning, Misner arrived at his cousin's home in Black Eagle, Montana, and asked to spend the night. He explained that he had been locked out of Hutchison's home. Misner slept at his cousin's house and, when he awoke later that morning, said he was returning to Hutchison's.

¶ 8 Shortly thereafter, a neighbor observed Misner knocking on the doors of Hutchison's house and peering into the bay window of the kitchen. The neighbor did not see Misner get into the house and Misner did not ask the neighbor for help. Misner then drove to the Heidelberg Bar, where he asked the bartender and the "regulars" if anyone had keys to Hutchison's house. He also used the bar's telephone to call 911 for police, saying he had seen Hutchison slumped over the kitchen table.

¶ 9 Joe Henderson, a bar patron and friend of Hutchison's, followed Misner back to Hutchison's house, looked in the kitchen bay window and saw Hutchison. Henderson kicked the front door open. He and Misner entered the home and saw the bodies of Hutchison and Wanda Lynn in the blood-splattered kitchen. They immediately went back outside, where police arrived moments later in response to Misner's 911 call.

¶ 10 Both Hutchisons had suffered fatal head injuries. Hutchison had been beaten to death, and Wanda Lynn had been beaten and shot twice in the head. All of the doors to the house had been deadbolted shut. No murder weapon was found.

¶ 11 Great Falls police detectives questioned Misner that afternoon. He gave an extensive videotaped interview regarding his activities on November 20 and the morning of November 21. According to Misner, Hutchison had asked him to "make himself scarce" on the evening of November 20, because Wanda Lynn was planning on spending the night at the house with Hutchison. Misner told the police officers that, when he left the Heidelberg Bar that afternoon, he went back to the house, showered and changed clothes, and left again before Hutchison and Wanda Lynn arrived there. Misner then narrated a long, intricate description of routes he drove around town all evening until he finally went to his cousin's house around 2 a.m.

¶ 12 Misner told the detectives he was not able to enter Hutchison's house on the morning of November 21 by his usual method— using a garage door opener and then a door from the garage to the house—because the battery in his garage door opener had died and he had left the dead battery on the kitchen windowsill. He explained a fresh cut on his finger as an injury from working on his truck's clutch two days earlier. When Misner later responded to a detective's request for a chronology of all his activities over the previous four days, however, he did not mention working on the truck clutch. Misner also told officers that he did not own or possess a gun.

¶ 13 Approximately one month later, the State of Montana filed an Information charging Misner with two counts of deliberate homicide. His trial was held in January of 2005.

¶ 14 At the weeklong jury trial, the State's evidence against Misner was entirely circumstantial. The State showed the jury Misner's videotaped statement. It presented testimony from Misner's cousin and the cousin's wife that they were surprised when Misner showed up around 2 a.m. at their house, where he had never before spent the night. The cousin also testified Misner asked them to wash his jacket the following morning but then left for Hutchison's house without it.

¶ 15 In addition, the State presented testimony from Hutchison's neighbor, several friends and family of Misner and the victims, Heidelberg Bar patrons and bartenders, and the officers who investigated the crime. A friend of Misner's testified that he had loaned Misner a .22 rifle the summer before the murders, which Misner had never returned. A bartender testified that Misner called her at around 6 p.m. on the night Hutchison and Wanda Lynn were killed, asking her to pick him up to go out dancing because he was too drunk to drive himself; she declined. Friends of Wanda Lynn's testified that she never would have left her little dog home alone—which she did the night she was killed—if she had been planning to spend the night away from home. A police officer testified he had tested the battery on the windowsill which Misner had identified as dead. The battery was not dead and, when the officer put it into the garage door opener, the garage door opener worked on the first try.

¶ 16 Great Falls police officers and a forensic scientist from the Montana State Crime Lab testified extensively about blood types, and about spatter, pooling and trace patterns of blood and DNA found at the crime scene and on Misner's clothing. Numerous photographs of the bloody crime scene were introduced into evidence. An envelope addressed to Qwest—spattered with dark red stains and found on the kitchen windowsill behind the battery Misner identified as from his garage door opener—was admitted into evidence, along with three other envelopes and the battery found on the windowsill with no apparent blood on them. The State Crime Lab forensic scientist testified that blood consistent with Misner's and Wanda Lynn's DNA profiles was in the drain of the kitchen sink, and indications of blood with a DNA mixture consistent with Misner's and Hutchison's was on the bathroom showerhead.

¶ 17 Misner presented an expert witness who testified that Misner's DNA at the crime scene might be explained by the facts that he lived in the house with Hutchison and had been socializing with Hutchison and Wanda Lynn before they were killed. During settlement of jury instructions, Misner offered an instruction regarding evidence which might support two reasonable interpretations, which the District Court refused to give. Misner's counsel argued in closing that the State had not carried its burden of proving Misner guilty beyond a reasonable doubt and that the State's evidence of his guilt was also consistent with his innocence.

¶ 18 The jury found Misner guilty on both counts of deliberate homicide. After he was convicted but before sentencing, Misner moved for a new trial, arguing comments made by the prosecutor during rebuttal closing argument constituted prosecutorial misconduct because they went beyond the evidence and deprived him of his right to a fair trial. The State responded, and the District Court heard oral argument. The court denied the motion for a new trial orally and, later, in writing but without written comment. The District Court then sentenced Misner and entered judgment. Misner appeals.

ISSUE 1

¶ 19 Did the District Court abuse its discretion in denying Misner's motion for a new trial?

¶ 20 We review decisions on motions for new trial under an abuse of discretion standard. State v. Clay, 1998 MT 244, ¶ 13, 291 Mont. 147, ¶ 13, 967 P.2d 370, ¶ 13 (citation omitted).

¶ 21 During his rebuttal closing argument, the prosecutor made certain statements and posited the theory that Misner had "staged" the crime scene. The defense did not object.

¶ 22 Later, in Misner's motion for a new trial, the defense argued the comments made by the prosecutor during closing argument had deprived Misner of a fair trial. The State filed a response brief. The District Court held a hearing on the motion for a new trial, at the end of which it orally denied the motion on the basis that Misner had waived objection to the prosecutor's comments by failing to object during closing argument. With the disclaimer "in no way suggesting that what I just said was not dispositive," the trial court then went on to address the merits of the motion for a new trial. It ultimately determined that, in the "big picture," there was "all kinds of evidence" about blood spatter in this case, in light of which the prosecution's closing argument about what the evidence showed was not prosecutorial misconduct.

¶ 23 On appeal, Misner points out the impropriety of prosecution comments on evidence not of record during closing argument. See State v. Newman, 2005 MT 348, ¶ 30, 330 Mont. 160, ¶ 30, 127 P.3d 374, ¶ 30 (citation omitted). Misner moved for a new trial on grounds...