State v. Southern

• Decision Date: 11 May 1999
• Docket Number: No. 97-640,97-640
• Citation: 980 P.2d 3,294 Mont. 225
• Parties: STATE of Montana, Plaintiff and Respondent, v. Blain SOUTHERN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 3

980 P.2d 3

1999 MT 94

STATE of Montana, Plaintiff and Respondent, v. Blain SOUTHERN, Defendant and Appellant.

No. 97-640.

Supreme Court of Montana.

Submitted on Briefs Oct. 1, 1998.

Decided May 11, 1999.

Edmund F. Sheehy, Jr., Helena, Montana, for Appellant.

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena, Montana, for Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶1 A jury in the District Court for the First Judicial District, Lewis and Clark County, convicted Defendant Blain Southern (Southern) of two counts of kidnaping, one count of burglary, one count of theft, and five counts of sexual intercourse without consent. The District Court sentenced Southern to a substantial term of years in prison and ordered that Southern be ineligible for parole. Southern appeals his convictions. We affirm.

¶2 We address the following issues on appeal:

¶3 1. Did the District Court err in denying Southern's motion to sever the counts against him into four separate trials?

¶4 2. Did the District Court err in denying Southern's motion in limine to preclude the State from offering microscopic hair comparison evidence at trial?

¶5 3. Did the District Court err in admitting DNA evidence which came from a rape kit which a nurse sealed and then opened to double check her paperwork?

¶6 4. Was the evidence sufficient to support Southern's convictions on Counts II through VIII?

Procedural Background

¶7 On March 5, 1997, the State charged Southern by Amended Information with two counts of kidnaping, one count of burglary, one count of theft, and five counts of sexual intercourse without consent. The Amended Information alleged that, on four occasions from April 25, 1994, to June 10, 1996, Southern raped four older women in the Helena area. The Amended Information also alleged that Southern kidnaped two of the victims and burglarized and stole money from another victim.

¶8 On March 7, 1997, Southern filed a motion to sever the nine counts in the Amended Information pursuant to § 46-13-211, MCA, based on there being four different victims and claimed lack of similarity of the alleged crimes. Southern asserted that joinder of the counts for trial was not proper under § 46-11-404, MCA, and that he would be unfairly prejudiced if he was tried on all nine counts at one trial. On April 16, 1997, the District Court denied Southern's motion to sever.

¶9 Southern filed a motion in limine on March 14, 1997, to prohibit the State from introducing microscopic hair comparison evidence. Southern argued that microscopic hair comparison evidence was inadmissible under Rules 702 and 403, M.R.Evid. On April 10, 1997, the District Court denied Southern's motion in limine.

¶10 A jury trial was held April 28 through May 2, 1997. The jury found Southern guilty on all nine counts charged in the Amended Information.

¶11 On July 11, 1997, the District Court sentenced Southern to imprisonment at the Montana State Prison (MSP) for a term of one hundred years on each of four of the counts of sexual intercourse without consent; to twenty years at the MSP on the remaining count of sexual intercourse without consent; to ten years at the MSP on each count of kidnaping; to twenty years at the MSP for the count of burglary; and to six months at the Lewis and Clark County Jail for the count of theft. The court ordered that all sentences run consecutively and that Southern be ineligible for parole. Southern appeals his convictions. To the extent necessary, we will discuss the facts of Southern's crimes as part of our analysis of the issues.

Issue 1.

¶12 Did the District Court err in denying Southern's motion to sever the counts against him into four separate trials?

¶13 The District Court ruled that Southern would not be prejudiced if tried on all nine counts together, and thus denied Southern's motion to sever the counts into four separate trials based on there being four different victims and claimed lack of similarity of the alleged crimes. Southern contends that the District Court erred in not considering whether the counts were properly joined in the Amended Information. Southern asserts that the counts were misjoined and, therefore, that the court erred in denying his motion to sever the counts in the Amended Information into four separate trials. In the alternative, Southern asserts that the court erred in denying his motion because severing the counts into four separate trials was necessary to prevent unfair prejudice. The State, however, maintains that the counts were properly joined and that Southern failed to prove that the prejudice was so great that it prevented a fair trial. We agree with the State.

¶14 A criminal defendant seeking to sever counts into separate trials has the burden of proving either that the counts were misjoined under § 46-11-404(1), MCA, or, if joinder was proper, that severing the counts under § 46-13-211(1), MCA, is necessary to prevent unfair prejudice. See State v. Richards (1995), 274 Mont. 180, 186, 906 P.2d 222, 226 (stating that, in issues regarding joinder and severance of criminal charges, this Court first determines whether joinder of the charges was proper and then determines whether severance of the charges was necessary to prevent prejudice to the defendant). See also State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380, 1384 (citing State v. Slice (1988), 231 Mont. 448, 451, 753 P.2d 1309, 1311) (stating that a criminal defendant moving for severance pursuant to § 46-13-211(1), MCA, has the burden of proving that the joinder of the charges is prejudicial).

A.

¶15 Was joinder of the counts in the Amended Information proper pursuant to § 46-11-404(1), MCA?

¶16 Southern argues that the counts of sexual intercourse without consent were misjoined in the Amended Information because they were not sufficiently similar to each other. Consequently, Southern contends that the District Court should have severed the counts and conducted four separate trials on the charges as to each victim. The State, however, contends that the counts of sexual intercourse without consent were sufficiently similar to each other and, therefore, that they were properly joined in the Amended Information.

¶17 Determining whether charges were properly joined in a charging document is a question of law which we review de novo. See United States v. VonWillie (9th Cir.1995), 59 F.3d 922, 929 (citing United States v. Vasquez-Velasco (9th Cir.1994), 15 F.3d 833, 843) (interpreting Rule 8(a), Fed.R.Crim.P.).

¶18 Section 46-11-404(1), MCA, provides in pertinent part:

Two or more offenses ... may be charged in the same charging document in a separate count, ... if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same transactions connected together or constituting parts of a common scheme or plan.

(Emphasis added.) Two or more offenses do not need to be identical to be joined in an information pursuant to this statute; rather, the offenses need only be sufficiently similar. Cf. State v. Whitlow (1997), 285 Mont. 430, 438, 949 P.2d 239, 244 (citing State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5) (stating that under the Modified Just Rule, which governs the admissibility of other crimes, wrongs or acts in a criminal trial, that the other crimes, wrongs or acts need not be identical to the charged conduct to be admissible, only sufficiently similar).

¶19 Although not determinative, some factors which are relevant to whether charges in an information are "of the same or similar character" are: (1) whether the charges are brought under the same statute; (2) whether the charges involve similar victims, locations, or modes of operation; (3) whether the charged conduct occurred in a narrow time frame; and (4) whether the charged conduct occurred in a limited geographical area. See United States v. Edgar (1st Cir.1996), 82 F.3d 499, 503 (citing United States v. Taylor (1st Cir.1995), 54 F.3d 967, 973) (interpreting Rule 8(a), Fed.R.Crim.P., which is substantively identical to § 46-11-404(1), MCA); United States v. Acker (4th Cir.1995), 52 F.3d 509, 514 (citing United States v. DeBordez (8th Cir.1984), 741 F.2d 182, cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 707) (stating that, under Rule 8(a), Fed.R.Crim.P., offenses may be joined when they are "identical or strikingly similar in the method of operation and occur over a short period of time"); and United States v. Chambers (1st Cir.1992), 964 F.2d 1250, 1251 (stating that the charged offenses were sufficiently similar for joinder under Rule 8(a), Fed.R.Crim.P., in part, because they all occurred in the greater Boston area).

¶20 In the instant case, Southern differentiates the counts of sexual intercourse without consent by pointing out that each victim was raped at a different hour of the day. Southern also differentiates the modus operandi of the counts of sexual intercourse without consent by pointing out that a knife was used on three of the victims but not on the remaining victim. Southern finally points out that, although three of the victims were raped in their home, one victim was kidnaped and raped at a location west of Helena and that one of the victims who was raped in her home was subsequently taken to a location west of Helena and raped a second time.

¶21 Despite these differences, the charges in the Amended Information were sufficiently similar to be joined in the Amended Information pursuant to § 46-11-404(1), MCA. The State brought each charge of sexual intercourse without consent under § 45-5-503, MCA. The victims are all older women. They were raped in the same limited geographical area--either in their homes in Helena, at a rural location west of Helena or both. The perpetrator covered...