State v. Smith

• Decision Date: 08 December 2020
• Docket Number: DA 19-0113
• Citation: 402 Mont. 206,2020 MT 304,476 P.3d 1178
• Parties: STATE of Montana, Plaintiff and Appellee, v. Darrell Dwayne SMITH, Defendant and Appellant.
• Court: Montana Supreme Court

402 Mont. 206

476 P.3d 1178

2020 MT 304

STATE of Montana, Plaintiff and Appellee,

v.Darrell Dwayne SMITH, Defendant and Appellant.

DA 19-0113

Supreme Court of Montana.

Submitted on Briefs: October 21, 2020

Decided: December 8, 2020

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Leo Gallagher, Lewis and Clark County Attorney, Fallon Stanton, Deputy County Attorney, Helena, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant and Appellant Darrell Dwayne Smith (Smith) appeals from the Judgment and Commitment filed on December 24, 2018, by the First Judicial District Court, Lewis and Clark County.

¶2 We restate the issue on appeal as follows:

Whether the District Court made numerous erroneous rulings amounting to cumulative error requiring reversal.

¶3 We reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶4 Smith was arrested on December 16, 2017. He was charged with Count I Partner or Family Member Assault (PFMA) (felony) under § 45-5-206(1)(a), MCA ; or, in the alternative, Count II PFMA (felony) under § 45-5-206(1)(c), MCA ; Count III Stalking (misdemeanor) under § 45-5-220(1)(b), MCA ; and Count IV Solicitation (felony), tampering with a witness under §§ 45-4-101 and 45-7-206, MCA. The solicitation charge arose from jailhouse phone calls between Smith and his sister and mother, in which the State alleged Smith encouraged his family to convince his victim, T.W., not to testify.

¶5 During pre-trial conference on the morning of trial, the District Court inquired as to whether the parties were ready to proceed to trial. The State advised, "We will need to make sure that the main witness has arrived before we start jury selection." Upon jurors appearing and after the initial jurors were called forth for voir dire, the State commenced its voir dire with no mention that its main witness was not present. The State informed the jury this was a case dealing with a partner or family member assault and then proceeded to discuss various issues associated with domestic violence. Throughout voir dire, the State concentrated nearly exclusively on the PFMA and stalking issues without ever mentioning anything in regard to the tampering offense. During a conference with the court at a break in voir dire, the State advised the court and Smith that the alleged victim, T.W., was not coming to trial, and the State then moved to dismiss the PFMA and stalking charges.

¶6 Upon the District Court granting the State's motion to dismiss the PFMA and stalking offenses, Smith moved for a mistrial, asserting the jury had been tainted by exposure to allegations of PFMA and stalking with the State's voir dire questioning. The State resisted, asserting the defendant had to know there was a proceeding or investigation happening and the jury was entitled to know the offense and how the person the defendant purportedly attempted to get not to show up is relevant to the offense charged. The District Court then effectively denied Smith's motion for mistrial and proceeded to trial on the remaining solicitation charge. Upon resuming voir dire after the break, the State secured jurors’ commitment to follow the law, asked a few questions as whether any of the jurors knew each other, and passed the jury for cause.

¶7 During its opening statement, the State again emphasized the PFMA, advising T.W. "reported to law enforcement that the defendant assaulted her—assaulted her and would not leave her alone." The State told the jury an investigating officer saw T.W. "had visible injury" and viewed T.W.’s phone containing "numerous messages and calls" from Smith. Smith objected to the State's presentation of these other bad acts, noting the original underlying offense did not need to be proven, only that Smith was arrested. The District Court overruled the objection.

¶8 In its case-in-chief, the State introduced extrinsic evidence of other bad acts related to Smith's cell phone to which Smith objected as not relevant, violative of M. R. Evid. 404, and unduly prejudicial. Although Smith had not yet testified, the State asserted the extrinsic evidence was admissible to attack Smith's credibility. The District Court overruled Smith's objections.

¶9 During Smith's case, through cross-examination, the State also admitted extrinsic evidence of other bad acts involving Smith's cell phone and text messages sent prior to the time period involving the tampering charge. Smith objected on the basis of relevance and also beyond the scope of direct. Again, the State asserted it was impeaching Smith's credibility and the District Court overruled the objections.

¶10 Finally, during the State's rebuttal, the State again admitted extrinsic evidence related to jail phone calls that Smith testified he did not recall and phone calls between Smith and an individual named Whitney in relation to a job and a place to reside. Smith again objected based on relevance and M. R. Evid. 404 and 403. Again, the State asserted the evidence was admissible for impeachment and credibility issues, and the District Court overruled the objections.

¶11 The jury convicted Smith of solicitation of witness tampering. Smith was sentenced to Montana State Prison for ten years with four years suspended. As Smith's arrest resulted in revocation of his Department of Corrections conditional release, the District Court did not credit Smith for his pretrial incarceration. Smith appeals not only the conviction but, if upheld, the refusal of the District Court to give him credit for any pretrial incarceration. Because we reverse on cumulative error, we do not address Smith's argument regarding credit for pretrial incarceration. Additional facts will be discussed below as necessary.

STANDARD OF REVIEW

¶12 We review a trial court's denial of a mistrial for an abuse of discretion. State v. Criswell , 2013 MT 177, ¶ 42, 370 Mont. 511, 305 P.3d 760. A court's evidentiary ruling is also reviewed for abuse of discretion. State v. Cunningham , 2018 MT 56, ¶ 8, 390 Mont. 408, 414 P.3d 289.

DISCUSSION

¶13 Whether the District Court made numerous erroneous rulings amounting to cumulative error requiring reversal.

¶14 Smith asserts reversal and a new trial is warranted as the District Court made several errors that tainted Smith from receiving a fair trial. First, Smith asserts the jury was tainted by the State's voir dire questioning focusing on charges it intended to dismiss and did indeed dismiss immediately following its extensive questioning of the jury about domestic violence impacts and issues. In light of exposing the jury to very prejudicial allegations of PFMA and stalking against Smith tending to portray Smith as a bad person, Smith asserts the court erred in not declaring a pre-empanelment mistrial. Next, Smith asserts the District Court erred by repeatedly permitting the State to introduce extrinsic, irrelevant, bad acts under the guise of impeaching Smith's credibility. Smith asserts, at a minimum, that the jury's repeated exposure to other bad acts in voir dire and throughout trial cumulatively deprived him of a fair trial.

¶15 The State counters that informing the jury of the PFMA and stalking allegations against Smith was not the equivalent of informing the jury of prior bad acts. The State further asserts it was not error for the court to admit the extrinsic evidence presented by the State as it was relevant as impeachment evidence to attack Smith's credibility. Finally, the State asserts none of the information was so egregious as to be incurable by the court's admonishment to the jury to decide the case based on the evidence and the court's final instructions on the law.

¶16 This Court recognizes "[t]he cumulative error doctrine mandates reversal of a conviction where numerous errors, when taken together, have prejudiced the defendant's right to a fair trial." Cunningham , ¶ 32 (citing State v. Hardman , 2012 MT 70, ¶ 35, 364 Mont. 361, 276 P.3d 839 ). "The defendant must establish prejudice; a mere allegation of error without proof of prejudice is inadequate to satisfy the doctrine." Cunningham , ¶ 32. "[P]rejudice may result from the cumulative effect of errors, and ... the cumulative effect of two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error." 5 Am. Jur. Appellate Review § 668 (2007) (footnotes omitted). A Defendant is entitled to a fair trial, not to a trial free from errors. Cunningham, ¶ 32. "Where individual errors would be insufficient alone, the sum of these errors can serve as a basis for reversal under the cumulative error doctrine." Cunningham , ¶ 32 (citing Kills on Top v. State , 279 Mont. 384, 392, 928 P.2d 182, 187 (1996) ).

¶17 While the cumulative effect of errors will rarely merit reversal, Cunningham , ¶ 33, the errors Smith asserts taken together establish he suffered prejudice. From our review of the record as a whole, we reluctantly conclude Smith did not receive a fair trial as a result of the District Court's rulings, but instead his conviction resulted, at least in part, from the prejudice of the irrelevant and extrinsic bad acts evidence erroneously admitted from voir dire through the entire evidentiary presentation.

Voir dire

¶18 Upon questioning throughout its voir dire, the State obtained reports from jurors of incidents of domestic violence impacting their lives—a juror reported her step-father was abusive to her mother, another reported her first husband abused her, another reported her step-father also abused her mother, another was abused by an ex-boyfriend, another reported two granddaughters being sexually molested, another reported a domestic violence incident where law enforcement told her and her husband to separate for a while, another reported his wife was stalked by a...