State v. Paoni, 04-748.

• Decision Date: 07 February 2006
• Docket Number: No. 04-748.,04-748.
• Citation: 128 P.3d 1040,331 Mont. 86,2006 MT 26
• Parties: STATE of Montana, Plaintiff and Respondent, v. Joseph PAONI, Defendant and Appellant.
• Court: Montana Supreme Court

128 P.3d 1040

2006 MT 26

331 Mont. 86

STATE of Montana, Plaintiff and Respondent, v. Joseph PAONI, Defendant and Appellant.

No. 04-748.

Supreme Court of Montana.

Argued April 15, 2005.

Submitted October 25, 2005.

Decided February 7, 2006.

COPYRIGHT MATERIAL OMITTED

For Appellant: Matthew M. Stevenson (argued), Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; John Paulson (argued), Assistant Attorney General, Helena, Montana, George Corn, Ravalli County Attorney; T. Geoffrey Mahar, Deputy County Attorney, Hamilton, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Joseph Paoni (Joseph) appeals his convictions from the District Court of the Twenty-First Judicial District, Ravalli County, for assault with a weapon, a felony in violation of § 45-5-213(1)(a), MCA; partner-family member assault, a misdemeanor in violation of § 45-5-206(1)(a), MCA; criminal mischief, a misdemeanor in violation of § 45-6-101(1)(a), MCA; and two counts of criminal endangerment, felonies in violation of § 45-5-207(1), MCA. We affirm.

¶ 2 Joseph raises the following issues on appeal:

¶ 3 1. Whether sufficient other evidence supported Joseph's conviction for assault with a weapon even assuming Joseph preserved his Crawford issue on appeal.

¶ 4 2. Whether the District Court abused its discretion by denying Joseph's motion for a mistrial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Early in the morning of December 29, 2003, after an evening of drinking, Joseph came home and argued with his pregnant girlfriend, Tracyn Elrich (Tracyn). Joseph struck Tracyn in the face, back, and stomach, pulled her hair, and slammed her head against the wall. Joseph's brother, David—who along with his wife and daughter, Tiffany Paoni (Tiffany), lived in the same house as Joseph—attempted to break up the fight between Joseph and Tracyn. The argument between the two brothers escalated until Joseph eventually struck David in the eye with the butt of a rifle.

¶ 6 Tiffany called 911 and summoned officers to the house, alerting law enforcement that Joseph was drunk and armed with a gun. David also spoke with the 911 operator and informed her that Joseph had struck him in the face with the gun. He further told the operator that he had disarmed Joseph and locked the rifle in the trunk of his car. David also informed the operator that Joseph was now outside the house and possibly armed with a knife.

¶ 7 Police officers arrived at the house and arrested Joseph. The State charged Joseph with assault with a weapon, two counts of criminal endangerment, partner-family member assault, and criminal mischief. The State premised the assault with a weapon charge on Joseph striking David in the face with the butt of a rifle.

¶ 8 David moved with his family, including Tiffany, to Sangamon County, Illinois, before Joseph's trial began. The District Court for the Twenty-First Judicial District, Ravalli County, issued subpoenas for David and Tiffany and the State mailed them to the Sangamon County Sheriff's Office. Nothing in the record indicates that the State or proper authorities presented the subpoena to a Sangamon County court of record, as required by § 46-15-113, MCA. The sheriff in Illinois attempted to serve David by leaving a copy of the subpoena at his abode. Thus, it appears that the Illinois authorities failed to serve the Ravalli County subpoena personally on David, as required by § 46-15-107, MCA. The State admitted that it was unlikely David or Tiffany would show up to testify.

¶ 9 Joseph moved to dismiss the assault with a weapon count on Sixth Amendment grounds before trial. He argued that the Sixth Amendment guaranteed him the right to confront the witnesses against him, and if David failed to show up for trial he would not have the ability to cross-examine David, examine his motives, or examine his testimony. The District Court denied the motion. Joseph's counsel then informed the court that he would object to any hearsay statements by David as the State offered them at trial. David and Tiffany did not appear at trial.

¶ 10 The State opened the trial by attributing the following statement to Joseph: "I want the baby dead. I hope the baby dies." Joseph did not object at the time, but instead moved for a mistrial the following day during a conference in chambers based on the State's use of these remarks. Joseph argued that the State's use of Joseph's comment denied him his right to a fair trial. The District Court denied the motion.

¶ 11 Both the State and Joseph offered into evidence during trial statements made by David. Joseph largely failed to object to the admission of David's hearsay statements. For instance, Deputy Rhodes, one of the officers who arrived on the scene after Tiffany had called 911, testified that David told him that he and Joseph had engaged in a physical scuffle, and that Joseph had caused David's injuries by striking him in the face with the rifle. Joseph made no objection to this testimony.

¶ 12 The jury found Joseph guilty on all charges. Joseph then filed a Motion for a New Trial and/or Motion for Judgment Notwithstanding the Verdict on the assault with a weapon charge against David and one of the criminal endangerment charges. Joseph argued that the District Court improperly had admitted all of David's hearsay statements in violation of Joseph's Sixth Amendment right of confrontation as expounded in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. The District Court denied the motion and entered a judgment of conviction on all counts. The court sentenced Joseph to 20 years in the Montana State Prison with 5 years suspended. This appeal followed.

STANDARD OF REVIEW

¶ 13 We review rulings on the admissibility of evidence under an abuse of discretion standard. State v. Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, ¶ 12, 119 P.3d 1194, ¶ 12. We leave determination of the relevancy and the admissibility of evidence to the sound discretion of the trial judge, and we will not overturn it absent a showing of abuse of discretion. Damon, ¶ 12. The standard for denial of a motion for a mistrial is whether the district court abused its discretion. State v. Steele, 2004 MT 275, ¶ 15, 323 Mont. 204, ¶ 15, 99 P.3d 210, ¶ 15.

DISCUSSION

¶ 14 1. Whether sufficient other evidence supported Joseph's conviction for assault with a weapon even assuming Joseph preserved his Crawford issue on appeal.

¶ 15 Joseph argues on appeal that the District Court violated his Sixth Amendment right to confront the witnesses against him, as expounded in Crawford, when it admitted certain of David's hearsay statements. The State counters that Joseph failed to raise a proper objection at trial and thus waived the right to raise the confrontation clause issue on appeal. Alternatively, the State argues that the District Court correctly admitted David's statements.

¶ 16 A defendant waives an objection and may not seek appellate review when a defendant fails to make a contemporaneous objection to an alleged error in the trial court. Section 46-20-104(2), MCA; State v. Olsen, 2004 MT 158, ¶ 10, 322 Mont. 1, ¶ 10, 92 P.3d 1204, ¶ 10. A defendant does not waive an issue by failing to object at trial, however, when he has filed a motion sufficiently specific to preserve the issue for appeal. State v. Vukasin, 2003 MT 230, ¶ 29, 317 Mont. 204, ¶ 29, 75 P.3d 1284, ¶ 29.

¶ 17 Joseph's counsel filed four separate motions in limine regarding various evidentiary issues. Joseph also argued in a separate pretrial motion to dismiss that the court would abrogate Joseph's Sixth Amendment right to confront the witnesses against him if David failed to appear for trial and the court did not dismiss the assault with a weapon charge. The District Court denied the motion at a pretrial conference on the morning of the first day of trial. Shortly thereafter Joseph's counsel informed the court that he would be objecting to any of David's hearsay statements as the State attempted to offer them.

¶ 18 Throughout the trial, however, Joseph repeatedly failed to object to David's hearsay statements. For instance, the State's first witness, Deputy Rhodes, testified when asked if David told him what caused his black eye that David stated "that the actual weapon striking his face is what caused that, that injury." It was not until Deputy Cashell, another officer present the night of the incident and the second witness to testify, attempted to relay a conversation with David that Joseph objected. The District Court sustained the objection.

¶ 19 Moreover, Joseph failed to object, on hearsay grounds, to the admission of the recorded 911 conversation between Tiffany, David, and the 911 operator. Joseph initially objected to the tape's admission on the grounds that the tape contained Tiffany's impermissible statements regarding Joseph's prior bad acts, and that the State had failed to provide him with Just notice that it would be seeking to use evidence of Joseph's prior bad acts. Judge Haynes opined that the tape was "also riddled with hearsay" and asked Joseph "what's the basis of your objection?" Joseph reiterated that it was the "Just notice. This is prior bad acts that would be in front of the jury at this point that officers have actually come out here before." Joseph then requested redaction of the tape so as not to invoke any violation of the Just notice requirement. The court agreed.

¶ 20 The court then played the redacted tape for the jury, without any objection to David's hearsay statements. In particular, David told the 911 operator that "when [Joseph] started beatin' [Tracyn] I went up there and tried to break it up and I got hit with the gun and I took the guns away and locked em in my trunk. . . ." Tiffany also made statements on the 911 tape that support Joseph's conviction for assault with a weapon. Tiffany told the 911 operator that "my dad just come down here and [Joseph] hit him in the eye with the butt of the...