State v. Nelson

• Decision Date: 11 June 2002
• Docket Number: No. 01-188.,01-188.
• Citation: State v. Nelson, 2002 MT 122, 48 P.3d 739, 310 Mont. 71 (Mont. 2002)
• Parties: STATE of Montana, Plaintiff/Respondent, v. David Wayne NELSON, Defendant/Appellant.
• Court: Montana Supreme Court

48 P.3d 739

310 Mont. 71

2002 MT 122

STATE of Montana, Plaintiff/Respondent, v. David Wayne NELSON, Defendant/Appellant.

No. 01-188.

Supreme Court of Montana.

Submitted on Briefs December 28, 2001.

Decided June 11, 2002.

Kristina Guest, Assistant Appellate Defender, Helena, Montana, For Appellant.

Mike McGrath, Montana Attorney General, Jim Wheelis, Assistant Attorney General, Helena, Montana; George H. Corn, Ravalli County Attorney, Geoffrey T. Mahar, Deputy County Attorney, Hamilton, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 On March 9, 1999, David Wayne Nelson (Nelson) was charged in the Twenty-First Judicial District Court with five felony offenses. As a result of a plea bargain, Nelson's accomplice testified for the State at trial. During cross examination of Nelson's accomplice, the District Court prevented questioning about charges allegedly filed against the accomplice in another county. At the close of trial and over Nelson's objection, the District Court instructed the jury that it could consider testimony showing fabrication by Nelson as a circumstance tending to prove consciousness of guilt.

¶ 2 On November 10, 1999, the jury convicted Nelson of Aggravated Kidnaping, Robbery, and two counts of Accountability for Felony Assault. On the Aggravated Kidnaping count, the District Court sentenced Nelson to twenty years in the Montana State Prison (MSP) with ten years suspended, even though it recognized no one had been seriously injured in the incident. Nelson appeals the District Court's limitation on cross-examination of his accomplice, the jury instruction on fabrication, and the Aggravated Kidnaping sentence. We affirm in part, and remand for resentencing.

¶ 3 We restate the issues as follows:

1. Whether the District Court abused its discretion when it restricted the scope of Nelson's cross-examination of his accomplice;

2. Whether the District Court's instruction to the jury on "fabrication by the defendant" prejudiced Nelson; and

3. Whether the District Court erred when it sentenced Nelson to the maximum sentence for Aggravated Kidnaping, even though the evidence established the victim had been released in a safe location without serious injury.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 The charges brought against Nelson in this matter stemmed from events occurring on the evening of December 13, 1998, at the home shared by Jim Frischmon (Jim) and Shari Wolff (Shari). Those involved in the events of December 13 were Jim, Shari, Nelson's nephew Fred, and Nelson himself. Although fascinating and somewhat bizarre, depending upon whose version of events one believes, the detailed sequence of events of December 13 as told by Jim, Shari, Fred and Nelson are largely immaterial to our decision here, as Nelson has not challenged the sufficiency of the evidence to support his conviction. Thus, we limit our description of the evening's events to those having direct relevance to the issues presented on appeal.

¶ 5 Jim, Shari and Fred testified that, while in Jim and Shari's home, Nelson grabbed Shari, wrapped wire around her wrists to restrain her, and threw her to the floor. Shari ostensibly struggled, receiving rug burns, scrapes and bruises. While Nelson struggled with Shari, Fred held a gun to Jim, who was wheel-chair bound. Further, according to the three witnesses, Nelson then tried to extort money from both Jim and Shari. Ultimately, Nelson let Shari get up from the floor, and although she remained bound for a period of time while the four talked, Fred eventually untied her. Before leaving the house with Fred, Nelson took $70 of Jim's money. Jim and Shari called the police after Nelson and Fred left, and related these and other details of the evening to a detective.

¶ 6 Nelson, upon hearing the police were looking for him, voluntarily went to the police and gave a statement. He denied all of Jim and Shari's allegations, claiming he and Fred were at Jim and Shari's watching TV that evening, and talking with Jim about his anti-government views. According to Nelson, after Jim said he would not want any law enforcement persons in his home, Nelson ostensibly threatened to call the police on Jim, surmising Jim must have something to hide. In turn, Jim then threatened to call the police on Nelson. Nelson believed his initial threat must have prompted what Nelson called Jim and Shari's "wild" version of events. In sum, Nelson denied there was any restraint of Shari, any robbery, or any assault of any kind.

¶ 7 Fred, Nelson's nephew, testified at trial to "facts" similar to those offered by Jim and Shari. He also related that, before they went into Jim and Shari's home that night, Nelson said he was desperate for money, and that he intended to "get rid of Jim," force Shari to clean out their bank accounts, and then "get rid of Shari." He also claimed Nelson then showed him a 9-millimeter weapon he had in his possession. It was undisputed that Fred ultimately testified to these and the evening's other events at trial, pursuant to a plea bargain.

¶ 8 At the close of trial, the jury found Nelson guilty of Aggravated Kidnaping, Robbery, and two counts of Accountability for Felony Assault. During the sentencing hearing, the District Court sentenced Nelson to MSP for twenty years with ten suspended for Aggravated Kidnaping, ten years with no time suspended for Robbery, and ten years for each Accountability for Felony Assault count. The court directed that the Robbery and Felony Assault sentences run concurrently with one another, but consecutive to the twenty-year term for Aggravated Kidnaping, for a total sentence of thirty years. Although the court was silent as to suspending any time on the Felony Assault counts, when summarizing the sentence, the court stated that fifteen years of the total thirty-year sentence were suspended. In its written judgment, the District Court imposed the same net result (thirty years with fifteen suspended); however, the court added that on each Felony Assault count, five years were suspended, and it also directed the Robbery sentence to run concurrent to the Aggravated Kidnaping, rather than consecutively as it orally pronounced at the sentencing hearing. We note that when the written and oral sentences are inconsistent, the oral sentence controls. See State v. Lane, 1998 MT 76, ¶ 40, 288 Mont. 286, ¶ 40, 957 P.2d 9, ¶ 40.

STANDARDS OF REVIEW

¶ 9 The standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. State v. Flores, 1998 MT 328, ¶ 27, 292 Mont. 255, ¶ 27, 974 P.2d 124, ¶ 27 (citations omitted). See also, State v. Stewart (1992), 253 Mont. 475, 479, 833 P.2d 1085, 1087 (admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent abuse of discretion). The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Davis, 2000 MT 199, ¶ 18, 300 Mont. 458, ¶ 18, 5 P.3d 547, ¶ 18 (citing State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925, ¶ 28). Finally, our review of a criminal sentence imposed by a district court is limited to questions of legality and confined to whether the sentence is within the parameters provided by statute. State v. Muhammad, 2002 MT 47, ¶ 18, 309 Mont. 1, ¶ 18, 43 P.3d 318, ¶ 18 (citation omitted).

DISCUSSION

Issue 1

¶ 10 Did the District Court abuse its discretion when it restricted the scope of Nelson's cross-examination of his accomplice?

¶ 11 Following a plea arrangement with Ravalli County prosecutor, Fred agreed to testify for the State at Nelson's trial. During cross-examination of Fred, Nelson's counsel questioned him about why he left Dillon and came to live in Hamilton in the Fall of 1998. After Fred explained that he had an argument with his mother and that he could not live with her anymore, Nelson's counsel asked a series of questions, implying that criminal charges had been brought against Fred in Dillon/Beaverhead County, and that this was the real reason that Fred had left Dillon.

¶ 12 At this point the State objected, arguing that Nelson was attempting to impeach Fred with prior bad acts. Outside the presence of the jury, Nelson's counsel explained that he wanted to cross-examine Fred about prior charges in Beaverhead County that allegedly had been dismissed after Fred made a deal to testify against his co-defendants, just as he did here. With this line of questioning, Nelson's counsel sought not only to impeach Fred on why he left Dillon, but also to demonstrate a pattern of testifying against co-defendants, arguing it reflected on Fred's propensity to be untruthful in his testimony against Nelson. However, Nelson's counsel could not make an offer of proof that Fred had actually been charged in Dillon. The District Court ruled that information about Fred's alleged prior charges was inadmissible under Rule 403, M.R.Evid., noting that the connection was too tenuous, especially given that it was unknown if formal charges were ever filed. Nelson appeals from this ruling.

¶ 13 The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Milton (1996), 280 Mont. 142, 145, 930 P.2d 28, 30 (citation omitted). Moreover, under Rule 611, M.R.Evid., it is within the district court's discretion to exercise reasonable control over the mode and order of interrogating witnesses. State v. Gommenginger (1990), 242 Mont. 265, 274, 790 P.2d 455, 461. See also, State v. McNatt (1993), 257 Mont. 468, 473, 849 P.2d 1050, 1054 ("[b]alanced against [the] right of confrontation is Rule 611(a), M.R.Evid"). "However, the trial court's discretion in exercising control and excluding evidence of a witness's bias or motive...