State v. Walker

• Decision Date: 27 December 1996
• Docket Number: No. 96-062,96-062
• Citation: State v. Walker, 930 P.2d 60, 280 Mont. 346 (Mont. 1996)
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dale R. WALKER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 60

930 P.2d 60

280 Mont. 346

STATE of Montana, Plaintiff and Respondent, v. Dale R. WALKER, Defendant and Appellant.

No. 96-062.

Supreme Court of Montana.

Submitted on Briefs Aug. 22, 1996.

Decided Dec. 27, 1996.

Carrie L. Garber and Jeffrey G. Michael, Deputy Public Defenders, Billings, for Appellant.

Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Dennis Paxinos, Yellowstone County Attorney, Billings, for Respondent.

ERDMANN, Justice.

Defendant Dale R. Walker appeals from the judgment and commitment entered by the Thirteenth Judicial District Court, Yellowstone County, convicting him of felony forgery. We affirm.

The issues on appeal are as follows:

1. Did the District Court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?

2. Did the District Court err in denying Walker's motion for a mistrial when one of the State's witnesses testified that he was familiar with Walker from past forgery investigations?

3. Did the District Court err in denying Walker's motion for a new trial on the ground of jury misconduct?

FACTS

On the afternoon of December 13, 1994, a man identifying himself as Terry L. Bergstrom approached teller Mary Jo Kellison at the Security Federal Bank in Laurel, Montana, and attempted to cash a $2000 check. The check was issued by the Edward D. Jones Co. to Terry L. Bergstrom on the custodial account of Wendy Jo Bergstrom. The check was endorsed with both signatures and what appeared to be corresponding social security numbers. Mary Jo requested approval from her supervisor, Vickie Ripley, before cashing the check. Vickie refused to approve the transaction because she did not recognize the customer. She told Mary Jo that the check would be approved if the customer opened an account.

The customer agreed to open both a checking and savings account and presented Mary Jo with a temporary driver's license which identified him as Terry L. Bergstrom. After completing the paperwork necessary to open the accounts, $1000 was deposited into the checking account, $500 into the savings account, and $500 was distributed to Mr. Bergstrom, along with a new checking account kit containing eight counter checks.

Later that afternoon, Vickie received a call from the Billings branch of Security Federal Bank. Mr. Bergstrom was at the Billings branch trying to cash a $600 counter check and the bank was calling to request a signature verification. Vickie became suspicious since she knew that Mr. Bergstrom had just received $500 cash back from the $2000 deposit he made earlier that day. She told the Billings branch not to cash the check since Mr. Bergstrom did not have a picture ID and there was no signature card on file with the bank.

The Laurel branch of the bank subsequently ran the name "Terry Bergstrom" through their computer and discovered that the bank had processed a mortgage loan in the name of "Tim and Terry Bergstrom." The bank attempted to contact Terry Bergstrom to find out what was going on. Mary Jo was able to reach the Tim Bergstrom residence and discovered that "Terry L. Bergstrom" was a woman. The bank then contacted the police.

Laurel Police Officer Bryan Fisher obtained the surveillance tape from the bank and asked Officer Brett Lund, a forgery specialist with the Billings Police Department, to view the tape and the forged check. After viewing the signature and the videotape, Officer Lund believed that the signature had been forged by Walker, whom he recognized from previous forgery investigations.

Officer Lund assembled a photographic lineup consisting of six pictures, the first of which was Walker. Officer Fisher showed the lineup to Mary Jo, Vickie, and a third bank employee who had been present during the Bergstrom transaction. All three women identified the man in photo No. 1 as the man who posed as Terry Bergstrom.

On January 19, 1995, the State charged Walker by Information with forgery, a felony, pursuant to § 45-6-325, MCA. On June 12 through 14, 1995, a jury trial was conducted which resulted in a guilty verdict. Walker filed a motion for a new trial, which the District Court denied. On September 28, 1995, the District Court entered its judgment and commitment, sentencing Walker to twenty years in the Montana State Prison. This appeal followed.

ISSUE 1

Did the District Court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?

Before trial, the State learned that the bank's surveillance tape was incompatible with a normal videotape machine. The tape would only play well on the type of machine owned by the bank and the bank would not release its machine because it would be left without surveillance. The State had a copy of the videotape made and a number of still-frame photographs were then produced from the copy. The original videotape was played for the jury on a normal videotape machine but since the quality of the tape was poor, the court allowed the jury to view the copy of the tape. The quality of the copy was not much clearer than the original and the court then allowed the State to admit the still photographs into evidence.

Walker argues on appeal that the District Court erred in admitting the photographs into evidence in violation of the "best evidence rule" as codified in Rules 1001 through 1003, M.R.Evid. Walker claims that the requirements of the best evidence rule required the jury to view the original surveillance tape on the bank videotape machine.

The State argues that Walker did not properly preserve the "best evidence rule" argument for appeal and that even if the District Court erred in admitting the photographs, such error is not grounds for reversing the conviction since Walker cannot demonstrate how the error affected his substantial rights.

During pretrial discussions Walker's attorney indicated he would object to the admissibility of the photographs if they were offered into evidence. The court suggested that the prosecutor be prepared to lay a proper foundation as to whether the photographs were true copies of the original tape. During the State's direct examination of Officer Fisher, defense counsel made the following statement to the court after the prosecutor indicated it was time to talk about the videotape and the photographs:

DEFENSE COUNSEL: Well, I'm going to object on the best evidence that the--

THE COURT: Well, you may have to call a person from the bank.

DEFENSE COUNSEL: I don't know that. The jury has the right to see the entire tape, as well.

THE COURT: Let's proceed.

Officer Fisher was then asked to identify the still photographs which were made from the videotape. Defense counsel objected for lack of foundation and the court sustained the objection. The State indicated it would lay the proper foundation for the photographs with its next witness.

The State then called Michael Taylor as a witness. Taylor owns a video and sound store and was the individual who made the copy of the videotape and reproduced the still photographs. After Taylor testified that the copy accurately reflected the content of the original and that the photographs were accurate reproductions from the tape, the State offered the photographs into evidence. Defense counsel objected for lack of foundation and chain of custody problems.

The court directed the attorneys into chambers where it cautioned the prosecutor that a proper foundation would require testimony from a number of witnesses. The court asked defense counsel if he had any doubt about the tape being the original. Defense counsel responded that he did not but indicated that the best evidence was the original tape and not the copy. The court stated that the prosecutor should lay the proper foundation, show the original tape to the jury, and if the quality was poor, lay additional foundation to allow the jury to view the copy. The court would then consider whether it would be necessary for the jury to see the still photographs. The court assured defense counsel that the jury would not view the photographs without seeing the videotape. At that point, defense counsel agreed to waive his prior objection regarding chain of custody and stated "as long as you introduce that videotape and play it, the original, then I don't care where you go from there."

Court reconvened and the original tape and copy were admitted into evidence and viewed by the jury. The State then offered into evidence the still photographs, whereupon defense counsel objected on three grounds: (1) lack of foundation; (2) chain of custody; and (3) surprise. The court overruled the first two objections and, after recess, defense counsel agreed that he was not truly surprised that still photographs were going to be used and therefore waived any objection in that regard. After establishing that the photographs depicted events which were taped by the bank surveillance camera during the time Walker was present in the bank, the State offered the photographs into evidence.

PROSECUTOR: Your Honor, at this time I move into evidence State's Exhibits 4 through 8 [the still-frame photographs].

THE COURT: Any objection?

DEFENSE COUNSEL: No objection, Your Honor.

This court has consistently held that a party's failure to object to an alleged error during trial precludes raising the issue on appeal. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 151, 900 P.2d 281, 284; Bridger v. Lake (1995), 271 Mont. 186, 193, 896 P.2d 406, 410; State v. Arlington (1994), 265 Mont. 127, 151 875 P.2d 307, 321. Section 46-20-104(2), MCA, provides that failure to make a timely objection during trial constitutes a waiver of the objection except as provided in § 46-20-701(2), MCA.

Walker argues that the transcript shows that defense counsel sufficiently objected to the admission of both the videotapes and the still-frame photographs on "best evidence" grounds and that the "objection" was never withdrawn. On...