State v. Oliver

• Decision Date: 31 May 2022
• Docket Number: DA 20-0078
• Citation: 510 P.3d 1218
• Parties: STATE of Montana, Plaintiff and Appellee, v. Stanley Joseph OLIVER, Defendant and Appellant.
• Court: Montana Supreme Court

510 P.3d 1218

STATE of Montana, Plaintiff and Appellee,

v.Stanley Joseph OLIVER, Defendant and Appellant.

DA 20-0078

Supreme Court of Montana.

Submitted on Briefs: April 27, 2022

Decided: May 31, 2022

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana, Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Ryan Mickelson, Deputy County Attorney, Missoula, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Stanley Joseph Oliver appeals from his convictions for partner or family member assault (PFMA), unauthorized use of a motor vehicle, and two counts of tampering with witnesses or informants, in the Fourth Judicial District Court, Missoula County. The restated issues on appeal are:

1. Did the District Court abuse its discretion when it allowed two law enforcement officers to testify about out-of-court statements made by the State's two lead witnesses?

2. Was Oliver's right to a fair trial by an impartial jury violated when the District Court declined to interview a juror who told one of the State's witnesses he was brave after testifying?

3. Was Oliver's right to confrontation violated by the repeated emphasis on recorded jail phone calls?

4. Did Oliver receive ineffective assistance of counsel when counsel did not object to the repeated use of the recorded jail calls at trial and encouraged the jury during closing arguments to relisten to the recorded jail calls during jury deliberations?

5. Is Oliver entitled to a new trial based on the cumulative error doctrine?

6. Did the District Court err in imposing jury and other costs on Oliver without first undertaking an ability to pay inquiry?

¶2 We affirm Oliver's convictions. We reverse the District Court's imposition of various fees and costs on Oliver and remand for the District Court to undertake the appropriate ability to pay inquiry before imposing those costs on Oliver.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Alyson Robbins and Oliver were in a tumultuous on again, off again, relationship for two years. They both lived an itinerant lifestyle, often staying with friends and family, in hotels, or at homeless shelters around Lake, Missoula, and Flathead Counties. In early March 2019, the two were on again after several months apart. After reconnecting, they went to Missoula in search of a used pickup truck to purchase. Robbins testified she purchased the truck with money from her tax return. Oliver testified he provided the money to purchase the truck from his earnings doing construction work. The bill of sale was made out to Robbins. About a week later, Oliver, Robbins, and her two minor daughters went to stay with Clayton Pierre in his trailer outside Arlee, Montana.

¶4 On the morning of March 20, 2019, deputies responded to Pierre's trailer home after a phone call to 9-1-1 was hung up. Deputies found Pierre, Robbins, and her two children at the scene. Robbins's face and hair were covered in dried blood, she had a cut above her left eye, and she had bruising and minor cuts on her back. Robbins told the deputies Oliver had strangled her the previous evening and tackled and hit her that morning and caused the injuries. She also relayed to the deputies Oliver had left and taken her truck without her permission. Pierre corroborated Robbins' account of the attack that morning to the deputies. Oliver was arrested later that day at his mother's home, where the truck was also found. Oliver was charged with one count of strangulation of a partner or family member, a felony, in violation of § 45-5-215, MCA ; one count of PFMA, a felony, in violation of § 45-5-206, MCA, and unauthorized use of a motor vehicle, a misdemeanor, in violation of § 45-6-308(1), MCA.

¶5 Oliver did not make bail and was detained at the Missoula County Detention Facility pending trial. Jailhouse records showed Oliver called Robbins from the jail at least seventy-seven times. Robbins answered seven of those calls between March 24 and April 6. Based on the content of those calls the State added two counts of tampering with a witness or informant, both felonies, in violation of § 45-7-206, MCA. ¶6 Oliver and the State largely agreed on what portions of the jailhouse calls were admissible for trial. Oliver sought to have a few additional seconds admitted in which Oliver alleged Pierre was using heroin. The court ruled those additional portions of the calls were admissible under M. R. Evid. 403 as they could explain Robbins's reactions to Oliver on the calls. The admitted portions of the jailhouse calls were played in their entirety at trial and shorter portions of the calls were repeated throughout trial and again during the State's closing arguments. In the calls, Oliver repeatedly encouraged Robbins to "amend" her statement, to tell officers she would not testify against him, and to leave Montana and move to Spokane.

¶7 At trial, the State called Robbins, Pierre, two deputies from the Missoula County Sheriff's Office, and an investigator from the County Attorney's office to testify. Oliver testified in his own defense. While on the stand, Robbins had difficulty providing a linear timeline of events. She described a chaotic series of altercations and violent attacks from Oliver occurring in the living room, their shared bedroom, outside the trailer, around her truck, and in Pierre's bedroom. She testified Oliver took her truck without her permission and tried to get the paperwork for the truck from her. Similarly, Pierre struggled to recall details and had difficulty recalling how long he had known Oliver. He testified he had a head injury

that affected his memory. Both were consistent Oliver tackled and hit Robbins in Pierre's room in front of Pierre on the morning of March 20, 2019, causing Robbins's injuries. They both testified Robbins fell onto a bucket and broke the bucket. A photo of a shattered bucket deputies found in Pierre's room was entered into evidence.

¶8 The District Court also admitted testimony from the investigating deputies about what Robbins and Oliver had told them the morning of March 20, 2019, over Oliver's hearsay objections. Oliver's counsel objected on hearsay grounds seven times during the testimony of the two deputies who responded to the scene. During the testimony of Deputy Paul Von Gontard, Oliver first objected when Von Gontard began relaying what Pierre told him at the scene. The prosecutor argued "the jury has heard from Mr. Pierre already, so we've established what he said. And additionally, this is for affect [sic] on the listener in establishing his steps after response." The court overruled Oliver's objection. Von Gontard then testified Pierre told him "there had been a ‘domestic.’ " Oliver next objected when the prosecutor asked Von Gontard what Robbins had told him about the truck. The prosecutor responded he had the "same response" as to the prior hearsay objection. Oliver contended the statement was an out-of-court statement offered for its truth and therefore needed to fall under an exception to the hearsay rule to be admissible. The court explained "it's not made by an out-of-court declarant, because she testified," and overruled the objection again. Von Gontard explained Robbins told him she had purchased the truck, but Oliver believed it belonged to him and tried to take it away from her. Robbins told Von Gontard she and Oliver had gotten into a physical altercation over Oliver trying to take the truck and the paperwork for the truck. Oliver again reiterated the hearsay objection after Von Gontard testified Robbins told him Pierre had hidden the paperwork for the truck to help her and prevent Oliver from getting the paperwork. Oliver objected on hearsay grounds again when the prosecutor asked Von Gontard what Robbins told him had occurred the prior evening. The court overruled the hearsay objection again, stating it "doesn't believe that it meets the hearsay objection, because Ms. Robbins has given testimony, and this testimony, presumably, is provided to either confirm or potentially vary the state of mind of Ms. Robbins." After this ruling, Oliver's counsel noted for the record proper foundation had not been established to admit the statements as prior consistent statements. Von Gontard then explained Robbins had told him Oliver had strangled her the prior evening by holding his knee against her throat.

¶9 During the testimony of Deputy Josh Edison, Oliver objected on hearsay grounds when the prosecutor asked what Pierre told Edison. Oliver's counsel explained the question called for an out-of-court statement offered for the truth of the matter asserted and "[i]t falls under the definition of hearsay." The court again overruled the objection. Edison then testified Pierre told him he heard an argument between Oliver and Robbins, the argument moved into Pierre's room, Oliver threw Robbins to the ground, and Oliver got up and left when Pierre told him to stop. When the prosecutor next asked what Robbins had told Edison, Oliver again objected on hearsay grounds, which the court overruled. Edison went on to testify Robbins told him there had been an argument outside and she had picked up a golf club and at some point, Oliver had picked up an axe. Later, the prosecutor asked Edison what Robbins told him had happened the previous evening. Oliver once again objected on hearsay grounds, which the court overruled. Edison then testified Robbins told him there had been an argument over a blanket in the living room and Oliver had pushed her down and put his knee on her throat three separate times. Robbins told Edison she had a sore throat and a sore tongue.

¶10 Oliver provided a much different account of the events. Oliver testified he did not know how Robbins sustained the injuries to her face and back, but he saw her trip in the doorway of their bedroom as he ran out of the trailer during an...