State v. Strauss, 02-426.

Citation74 P.3d 1052,2003 MT 195,317 Mont. 1
Decision Date04 August 2003
Docket NumberNo. 02-426.,02-426.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Alicia Marlene STRAUSS, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

John O. Putikka, Thompson Falls, Montana, for Appellant.

Honorable Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Robert Zimmerman, County Attorney, Thompson Falls, Montana, for Respondent.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Following a jury trial in the Twentieth Judicial District Court, Sanders County, Alicia Marlene Strauss was convicted of negligent homicide and was sentenced to twenty years imprisonment, with ten years suspended. Strauss received an additional ten-year prison term for her use of a weapon during the commission of the offense. She now appeals. We affirm in part and reverse in part.

¶ 2 The following issues are raised on appeal:

¶ 3 (1) Whether the District Court erred when it admitted two video tape recordings of the crime scene, one of which included an audio portion and one that depicted the positions of Strauss and the victim, Brown, relative to their surroundings at the time the crime was committed;

¶ 4 (2) Whether the District Court erred when it allowed Nancy Wickham to testify at trial about a statement made by Strauss, which was not disclosed to Strauss before the proceedings;

¶ 5 (3) Whether the District Court erred when it instructed the jury that voluntary intoxication is not a defense to a crime; and

¶ 6 (4) Whether the District Court erred when it sentenced Strauss to an additional ten years imprisonment pursuant to a weapon enhancement statute, the provisions of which were not complied with by the State or the court.


¶ 7 On May 8, 2001, Appellant, Alicia Marlene Strauss, shot and killed her boyfriend, Douglas Brian "Popeye" Brown, during an argument at Brown's residence in the McLaughlin Creek area near Paradise in Sanders County. After shooting Brown, Strauss called 911. She told the dispatcher that the shooting was an accident. Police officers and paramedics arrived at the scene and attempted to save Brown's life. Their efforts were to no avail, and Brown was later transported to the Clark Fork Valley Hospital in Plains where he was pronounced dead. A pathologist determined that the cause of death was a gunshot wound to Brown's trunk, where a bullet had penetrated his liver.

¶ 8 Strauss was charged by Information with deliberate homicide. At Strauss's arraignment, the Twentieth Judicial District Court, Sanders County, entered a plea of not guilty on her behalf.

¶ 9 On the first day of trial, the State notified Strauss that one of its witnesses, Nancy Wickham, intended to testify about a statement that Strauss had made on the evening of the shooting. Wickham had informed the State that, according to Strauss, Brown told her to claim that she was only shooting at birds when the "accident" occurred. The parties met in chambers to discuss the admissibility of this proposed testimony. The State requested that the jury be allowed to hear the testimony. Strauss protested, asking for a mistrial on grounds that police officers never formally interviewed Wickham, and that her testimony was never disclosed. Strauss noted that she had interviewed Wickham several weeks prior to trial, and that Wickham had failed to disclose the alleged statement. The District Court refused to grant a mistrial, but stated that it would not allow Wickham to be called as a witness by the State until Strauss had an opportunity to interview her.

¶ 10 The parties held a second meeting the following morning, and Strauss again urged the court to preclude Wickham from testifying about Brown's statement. In the alternative, Strauss asked the court to continue the proceedings for two weeks to allow her time to investigate Wickham's background for impeachment purposes. Strauss maintained that the introduction of Wickham's testimony would result in a denial of Strauss's right to present a defense. Again, the court denied Strauss's requests, and Wickham was allowed to testify.

¶ 11 During the course of the trial, the State attempted to show that Strauss had shot Brown deliberately. The State produced additional witness testimony that Strauss had admitted shooting Brown during an argument. The State also produced evidence that, immediately after the shooting, Strauss called several family members before calling 911. Physical evidence collected at the scene revealed that the rifle used by Strauss had discharged five bullet casings in a concentrated area. In turn, Strauss relied on the testimony of the State's witnesses to support her general argument that the shooting was accidental.

¶ 12 During the testimony of Deputy Sheriff Chad Cantrell, the State presented two video tape recordings of the crime scene. Strauss objected to both. The first video tape, marked as State's Exhibit Number 17, included an audio portion consisting of Officer Cantrell's contemporaneous statements regarding the location of Strauss and Brown at the time of the shooting. Strauss argued that Cantrell's recorded comments amounted to a narration by the officer which was testimonial in nature and not made under oath or subject to cross-examination. Strauss requested that the recording be played with the volume turned down. In response, the State noted that because Officer Cantrell was on the stand, he was subject to cross-examination regarding his recorded statements.

¶ 13 The second video tape, marked as State's Exhibit Number 18, was made several weeks after the shooting. The recording showed an individual positioned where the police believed Brown was standing at the time of the shooting. The recording also showed a house, bullet casings, and a road as viewed from several locations. In addition, the camera operator walked back and forth between the house and the location of the shooting. Strauss objected to this video tape on grounds that it was an impermissible re-enactment of the State's theory of the case and depicted scenes that no one except Strauss and Brown had witnessed. Strauss also noted that the conditions at the time of the recording were different from the conditions of the shooting. For example, certain objects had been moved or were no longer there when the video tape was made. In response, the State argued that the tape would help the jury understand where the bullet casings and the house and road were located. The State also asserted that it was important to demonstrate distances and time lapses to the jury.

¶ 14 The District Court admitted both video tapes over Strauss's objections. The court specifically determined that the second tape was not a re-enactment. However, the court promised to instruct the jury that the person seen in the video was not the victim and was not intended to represent the victim. The tapes were then played for the jury. The first tape was played with the audio portion. The second tape was played without the promised admonitory instruction. In addition, both tapes were admitted into the jury room at the conclusion of the trial so that the jury could view the recordings again.

¶ 15 Early in the settling of instructions, Strauss objected to the State's proposed Instruction Number 10, entitled "Responsibility —Intoxicated Condition." The instruction provided that intoxication could not be taken into account when determining the existence of a mental state which was an element of Strauss's offense. Strauss argued that the instruction was confusing and prejudicial because it implied that she was trying to use intoxication as a defense. According to Strauss, the instruction violated her right to due process and a fair trial. The District Court overruled Strauss's objection and gave the jury instruction as Instruction Number 15.

¶ 16 The jury returned a verdict of guilty of the lesser included offense of negligent homicide. The State recommended that Strauss be sentenced to twenty years imprisonment for the underlying conviction, with an additional ten years imprisonment for her use of a firearm during the commission of the offense. Strauss objected to the sentence enhancement and argued that she had not been informed of the State's intention to seek the enhancement and that the State had not presented legal authority to support its imposition. In turn, Strauss recommended a ten-year suspended sentence.

¶ 17 The District Court sentenced Strauss to twenty years imprisonment, ten of which the court suspended. The court imposed an additional ten years imprisonment pursuant to the weapon enhancement and directed that the sentences run consecutively. Strauss then appealed.

Issue One

¶ 18 We first consider whether the District Court erred when it admitted two video tape recordings of the crime scene, one of which included an audio portion, while the other depicted the positions of Strauss and Brown relative to their surroundings at the time the crime was committed. Our standard of review of a trial court's evidentiary rulings is for abuse of discretion. Trial courts have broad discretion to determine whether evidence is relevant and admissible and, absent a showing of abuse of discretion, these determinations will not be overturned. State v. Osborne, 1999 MT 149, ¶ 23, 295 Mont. 54, ¶ 23, 982 P.2d 1045, ¶ 23.

A. State's Exhibit Number 17

¶ 19 The first video tape, which included Officer Cantrell's commentary, was offered to enhance the jury's perception of the crime scene or, as the State noted, to "assist them [the jurors] in getting the lay of the land, being able to see the rock sled, the rock cart itself and the road and sleigh and the tree, and that type of thing, where the victim was found and where you [Cantrell] found the blood...." The tape was made two days after the shooting, and shows the location of the incident, including...

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