State v. Stringer

Decision Date14 June 1995
Docket NumberNo. 94-155,94-155
Citation897 P.2d 1063,271 Mont. 367
PartiesSTATE of Montana, Plaintiff and Respondent, v. Stuart STRINGER, Defendant and Appellant.
CourtMontana Supreme Court

William F. Hooks, Appellate Defender Office, Helena, Nathan J. Hoines, Great Falls, for appellant.

Joseph P. Mazurek, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Patrick L. Paul Cascade County Atty., Great Falls, for respondent.

NELSON, Justice.

Appellant Stuart Stringer was charged by Information with one count of aggravated burglary, a felony in violation of § 45-6-204(2)(a), MCA, one count of aggravated kidnapping, a felony in violation of § 45-5-303(1)(c), MCA, and two counts of assault in violation of § 45-5-202(2)(a) and (b), MCA. A jury trial was held in the Eighth Judicial District Court, Cascade County on November 8-10, 1993. The court dismissed the aggravated burglary count at the conclusion of the State's case-in-chief, and the jury acquitted Stringer on one of the felony assault charges. Stringer was convicted of the charges of aggravated kidnapping and one count of assault. After sentencing, the District Court entered judgment against Stringer, who appeals from this judgment. We reverse and remand.

Stringer raises four issues on appeal:

1. Whether the District Court erred in permitting testimony concerning the battered woman syndrome?

2. Whether the prosecutor engaged in misconduct?

3. Whether there was sufficient evidence to sustain the convictions?

4. Whether the District Court erred in refusing to examine a juror, or to grant relief after being informed that a juror may have concealed material information during voir dire thus raising the possibility of bias and partiality?

BACKGROUND FACTS

Stuart and Kathy Stringer had recently divorced prior to the incidents giving rise to the charges against Stuart. At the time the incidents took place, Kathy was living in a basement apartment with the Stringer's two daughters, A.S. and I.S. The couple's three sons were living with Stuart. Kathy and Stuart remarried shortly after the events occurred.

On April 24, 1993, Kathy and a friend, Ray Rogers, went to a party at a house belonging to Bob and Cheryl Dumas. According to the testimony of Kathy, Ray and Bob, the partygoers spent the evening consuming a great quantity of whiskey and beer, talking, and playing video games. During the course of the night, they all became extremely intoxicated.

Kathy spent the night at the Dumas' house, and upon awakening at approximately 5:00 or 6:00 a.m., she drank some more whiskey. The next thing Kathy remembers is being awakened by her ex-husband Stuart. At this time Kathy was in bed with Ray who had also spent the night at the Dumas' house.

In a written statement given to the Great Falls police on April 26, 1993, Kathy described what transpired next:

At about 9:30 a.m., I was in bed at Robert Dumas['] house at # 17 Fisher Trailer Park and was awaken[ed] by Stuart Stringer, my ex[-]husband with a gun pointed in my face and Ray Rogers['] face. Stuart said wake up Ray and Kathy you ... bitch, I'm going to kill you. I am foggy about the rest but to the best of my knowledge, Robert Dumas came in front of the gun and told Stuart no, not in my house Stuart. Stuart took off. I got dressed and Ray took me to my house. I went and got something to eat at Taco Treat and then went home and went to sleep.

However, Kathy's, Ray's and Robert's trial testimony was considerably different from Kathy's written statement. All three testified that Stuart had awakened Kathy and Ray who were in bed together, and that Kathy and Stuart argued and exchanged profanities. Kathy testified that she did not remember if Stuart had a gun with him, but was certain that he did not point a gun at her or threaten her. Ray testified that Stuart did not threaten to kill Kathy or Ray, and that he was certain Stuart did not have a gun. Robert testified that Stuart had a gun which was in a holster which was tucked into his pants. According to Robert, the holstered gun began to slip out of Stuart's pants while he and Kathy were arguing, and Stuart grabbed it and placed it back into his pants before it fell. The argument ended when Robert interceded and asked both Kathy and Stuart to leave.

Later that evening, Stuart went to Ray's apartment and asked Ray to accompany him to Kathy's apartment because he wanted to talk to her and needed a "witness." Ray agreed to accompany Stuart, and the two men walked to Kathy's apartment. That evening, at the request of the police, Kathy wrote the following statement regarding what transpired upon Stuart's arrival:

About 11:15 p.m. I was being pulled out of bed by my hair by Stuart. [H]e threw me against the wall and started to stab at me with his pocket knife. Glenda, the lady upstairs yelled at Stuart and told Stuart to leave. She called 911--Stuart made me come out with him and Ray Rogers and walk to talk--he kept slashing out at me with the knife. He made Ray and me walk down the alley to 15th St. and he kept on telling Ray and I he was going to kill all of us including himself. He kept on slaping [sic] me up in my mouth and pushing Ray and making me tell him I was going to come back home and how I know I love him and how I was causing problems with him and Ray and how I am and will belong to him. Also he had Ray scared to death. We walked back home and police were there and arrested him.

At trial, Kathy gave a different version of the events occurring that night and testified that the statement she wrote was false. Kathy stated that she wrote a false statement because she was still intoxicated and embarrassed at having been caught in bed with Ray. Kathy then stated that on the night of April 25, 1993, she was lying in bed holding a pocket knife and contemplating suicide by cutting her wrists. Stuart came in to her room and attempted to take the knife. The two struggled with the knife and Kathy testified that she, and maybe Stuart, received cuts. Kathy then stated that she went for a walk voluntarily with Stuart so that they could talk.

Kathy mentioned at trial that Stuart was always welcome at her house, and that she voluntarily went on a walk with Stuart and Ray in an attempt to "work things out." She also stated that Stuart did not threaten to kill her or Ray during the walk and that neither she nor Ray were afraid of Stuart at this time.

Great Falls Police Officers Carey Tamborino and John Catlett were dispatched to the scene that night as a result of a 911 call. Officer Tamborino testified that upon arriving at Kathy's apartment, he met Glenda King, Kathy's landlady who lived upstairs from Kathy. Glenda explained to Officer Tamborino that Stuart had come to the residence and that she had told Stuart that she did not want him in the house. According to officer Tamborino, Glenda stated that Stuart had a knife, and walked down the stairs to Kathy's apartment and left blood on the railing. She reported that she heard Stuart shout, "you're going to die with me here if you don't come with me." Glenda also told Officer Tamborino that she heard a struggle and then saw Kathy, Stuart, and Ray leave the apartment.

Officer Tamborino also spoke with A.S. and I.S., Stuart and Kathy's daughters, that night at the scene. A.S. told him that her dad was angry about the recent divorce and that when he arrived that evening she believed he was drunk. A.S. related that Stuart went downstairs, struggled with Kathy and took her out of the apartment at knife point, and stated that he might kill her. Officer Tamborino stated that I.S. appeared to be hysterical, that she was crying and saying "he's going to kill her."

Shortly thereafter, Kathy, Stuart and Ray returned to the apartment. Officer Tamborino observed that Kathy had a cut on her wrist, and on her lip. Officer Catlett patted Stuart down, but found no weapons on him. He then placed Stuart under arrest and transported him to the county jail.

Officer Tamborino questioned Ray about the incident. According to Tamborino's report which he wrote up at the end of his shift, Ray told him that Stuart had come to his apartment that night and asked him to accompany him to Kathy's apartment. When asked why Stuart had made this request, Ray related that Stuart had said "I'm afraid I'm going to kill her." Ray also indicated that he was afraid of Stuart, and that Stuart had been brandishing a handgun earlier in the day.

At trial, A.S., Ray, and Glenda King gave testimony which was contradictory to the statements they had given to Officers Tamborino and Catlett. Their testimony at trial tended to demonstrate that Stuart did not commit the crimes charged.

Prior to trial, the State gave notice of its intention to call Shirley LaRocque, a client advocate for a Great Falls' battered woman's shelter, as an expert witness. The purpose of Ms. LaRocque's testimony was to explain the battered woman syndrome and its effect on spouses and children.

On the first day of trial, the defense moved to exclude any prior acts evidence regarding Stuart's prior criminal history and domestic abuse charges, including testimony from Ms. LaRocque concerning prior abuse between Stuart and Kathy on the basis that no Just notice had been given. The court acknowledged that because the testimony would involve explaining a cycle of abuse, it raised Just notice requirements. However, the court allowed Ms. LaRocque to testify, on the condition that she not testify to any prior acts of abuse. Ms. LaRocque testified concerning the cycle of domestic abuse, and explained that it is not uncommon for a battered woman to recant or change her story at the time of trial.

The court dismissed the aggravated burglary charge at the end of the State's case, on the grounds that there was insufficient evidence. The jury convicted Stuart of two of the charges: (1) aggravated kidnapping; and (2) assault. The jury found Stuart not guilty...

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    ...foundational requirements, preferring instead, to leave those to the sound discretion of the trial court...." State v. Stringer , 271 Mont. 367, 378, 897 P.2d 1063, 1070 (1995). This Court has found it within a trial court’s discretion to admit evidence of battered woman syndrome where the ......
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