State v. Pace, 93-545

• Citation: 272 Mont. 464,901 P.2d 557
• Decision Date: 10 August 1995
• Docket Number: No. 93-545,93-545
• Parties: STATE of Montana, Plaintiff and Respondent, v. Bennett James PACE, Defendant and Appellant.
• Court: Montana Supreme Court

Page 557

901 P.2d 557

272 Mont. 464

STATE of Montana, Plaintiff and Respondent, v. Bennett James PACE, Defendant and Appellant.

No. 93-545.

Supreme Court of Montana.

Submitted on Briefs May 4, 1995.

Decided Aug. 10, 1995.

Julie A. Macek, Great Falls, William F. Hooks, Appellate Defender, Helena, for appellant.

Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena, Brant Light, County Attorney, Great Falls, for respondent.

WEBER, Justice.

This is an appeal from a judgment based upon a jury verdict in the Eighth Judicial District Court, Cascade County, and the court's sentence. We reverse and remand.

Defendant, Bennett James Pace, presented four issues for review, but we have determined one issue is dispositive of this case:

Did the District Court err in admitting evidence of alleged other acts pursuant to Rule 404(b), M.R.Evid.?

Facts

On October 8, 1991, two Jehovah's Witnesses entered the home of Donald John McLeod and found him dead on the floor, partially nude. The estimated date of death was October 6, 1991.

Mr. McLeod suffered multiple stab wounds to the chest with fatal wounds to the heart. A knife, covered with blood of the same type as the victim's blood, was found on the floor at the crime scene and was determined to be consistent with the weapon that caused the injuries. No latent fingerprints were found on the knife. The lead investigator of the case believed the knife to be from Mr. McLeod's kitchen. However, relatives were unable to identify the knife.

Based on the physical evidence, the police theorized the murder occurred during a burglary. An entry door appeared forced open. The doorknob was pulled off and the molding was broken. The house appeared to have been ransacked, with items strewn around the kitchen, living room, and bedroom. Several witnesses testified the victim generally kept his house neat and clean. Blood stains on the carpet under papers and clothing scattered on the living room floor indicated that the house had been ransacked after the murder. Relatives of the family were unable to identify any missing possessions of the deceased.

On September 4, 1992, defendant was charged by information with deliberate homicide. Defendant was arrested on September 6, 1992, in Spokane, Washington. On April 2, 1993, the information was amended, charging defendant with Count I, burglary, and Count II, deliberate homicide under the felony murder rule as specified in § 45-5-102(1)(b), MCA, or in the alternative, deliberate homicide, a felony as specified in § 45-5-102(1)(a), MCA.

The State filed a notice advising the defendant of its intention to offer evidence of other crimes, wrongs or acts as required under the Modified Just Rule in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. While the notice as given by the State referred to a number of different incidents, we are concerned here only with two specific incidents, evidence of which was admitted at the trial.

The first incident involved an arrest in Missoula, Montana, on February 21, 1991, in which defendant was picked up for panhandling and charged with obstructing a peace officer and carrying a concealed weapon. Defendant possessed a six-inch fillet knife and identified himself using an alias. Additionally, defendant had two wallets with him containing identification cards of three different people.

In the second incident, the State introduced evidence that on March 7, 1992, in Wenatchee, Washington, the defendant, using a different name, was arrested for armed robbery. On his person were found forty-six dollars taken from the victim and a knife.

In the course of the jury trial, the District Court overruled defendant's objections to the evidence and advised the State it could present evidence of the two above-described incidents. The jury returned a verdict, on April 22, 1993, finding defendant guilty of burglary and deliberate homicide under the felony murder rule. A sentencing hearing was held on July 28, 1993, at which time the District Court pronounced sentence.

Defendant appeals from the judgment.

Issue

Did the District Court err in admitting evidence of alleged other acts pursuant to Rule 404(b), M.R.Evid.?

In State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621, 623, we set forth the standard of review of evidentiary rulings. The standard we use is whether the District Court abused its discretion. "The [D]istrict [C]ourt has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of this discretion, the court's determination will not be overturned." Keys, 852 P.2d at 623 (citing State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052).

The evidentiary rule at issue is as follows:

Rule 404. Character evidence not admissible to prove conduct, exceptions; other crimes; character in issue.

. . . . .

(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

. . . . .

Defendant objected to the State's introduction of evidence involving defendant's actions in Missoula, Montana, and Wenatchee, Washington, where defendant's knife was confiscated in both incidents. Defendant argues, while the District Court determined the other acts were used to show "opportunity, identity, and intent," the only purpose they served was to show bad character. Defendant refers to our decisions in Matt and more recently, State v. Johnston (1994), 267 Mont. 474, 885 P.2d 402, where we discussed admission of other acts when used to infer a defendant's character.

In Johnston, we stated:

To insure that prior crimes are not used to prove a bad character, this Court has established a four-part test to determine the admissibility of evidence of other crimes or acts in criminal prosecutions. Matt, 814 P.2d at 56. The four elements of that test are: (1) the other crimes, wrongs, or acts must be similar; (2) the other crimes, wrongs, or acts must not be remote in time; (3) the evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; (4) although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Matt, 814 P.2d at 56. This rule modified the Just rule, which originally set forth the basis for admission of other crimes, wrongs, or acts.

Johnston, 885 P.2d at 404-05.

Defendant asserts the State did not meet the first prong of the test and therefore failed to establish that the other acts were similar. In his analysis, the defendant points out that the State alleged the defendant was guilty of burglary which required that it prove the defendant knowingly entered or remained unlawfully in an occupied structure with the purpose to commit an offense. Section 45-6-204(1), MCA. In a similar manner, in order to prove the defendant guilty of deliberate homicide under the felony murder rule, the State was required to prove the defendant attempted to commit, committed, or was legally accountable for the attempt or commission of burglary and, in the course of such burglary, the defendant or any person legally accountable caused the death of the victim. Section 45-5-102(1)(b), MCA. Last, in order to prove the allegations of deliberate homicide, the State was required to prove the defendant purposely or knowingly caused the death of another human being. Section 45-5-102(1)(a), MCA.

On the issue of similarity, the defendant analogizes the nature of the conduct in the three incidents as follows:

Missoula panhandling incident in February 1991--involved obstructing a police officer and the carrying of a knife as a concealed weapon. The offense occurred on a street.

Charged offense here in Great Falls in October of 1991--nature of the conduct was burglary and deliberate homicide (felony...