State v. Walton

• Decision Date: 22 July 1986
• Docket Number: No. 85-619,85-619
• Citation: 222 Mont. 340,722 P.2d 1145
• Parties: STATE of Montana, Plaintiff/Respondent, v. John WALTON, Defendant/Appellant.
• Court: Montana Supreme Court

Page 1145

722 P.2d 1145

222 Mont. 340

STATE of Montana, Plaintiff/Respondent, v. John WALTON, Defendant/Appellant.

No. 85-619.

Supreme Court of Montana.

Submitted on Briefs April 24, 1986.

Decided July 22, 1986.

Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Arnie A. Hove, McCone Co. Atty., Circle, for plaintiff/respondent.

Francis J. McCarvel, Glasgow, for defendant/appellant.

HARRISON, Justice.

This is an appeal from a jury verdict in the District Court of the Seventh Judicial District in and for McCone County, Montana. The defendant was found guilty of a single felony count of conspiracy to commit sale of dangerous drugs and was sentenced to three years suspended, with conditions, in the Montana State Prison, and fined $8,000. We affirm.

The appellant, John Walton (Walton), his wife Ethel, and two of their sons, Fred and John Jay, were charged with two felony counts of sale (growing), conspiracy to sell and solicitation to sell dangerous drugs. The allegation was that Walton and the others charged had engaged in an illegal conspiracy to cultivate marijuana on the ranch owned by Walton in northern McCone County. Prior to trial the solicitation charge was dismissed as to Walton, John Jay, and Fred. At the conclusion of the State's case, the court granted defense counsel's motion to dismiss Ethel Walton as a defendant.

Walton's daughter, Donna Tyson, her minor children, her husband, Bobby Dale Tyson, and Tyson's brother, moved from Texas to an abandoned farmstead owned by Walton. After consulting with Walton about the proper location, they built a greenhouse and planted marijuana.

Cottonwood trees on Walton's property were used in the construction of the greenhouse. Walton permitted the use of his pump to supply the plants with necessary water. He paid for the materials to build an A-frame structure around the greenhouse in order to camouflage it. After the marijuana was planted, it was dried and stripped, divided into one-pound bags and taken by the Tyson brothers to Texas to be sold. They were apprehended by Texas law enforcement officials and gave statements revealing the entire scheme.

The jury acquitted Fred Walton on all charges. John Jay Walton and John Walton were found guilty of conspiracy to commit criminal sale of dangerous drugs and John Jay also was found guilty of a lesser included offense, possession of dangerous drugs, a misdemeanor. John Walton is the only defendant to appeal.

Walton presents three issues on appeal: (1) Whether the trial judge erred in not granting a mistrial due to the erroneous and prejudicial remarks of the county attorney during voir dire of the jury; (2) whether the trial judge erred and abused his discretion in admitting one of the State's exhibits, because a sufficient chain of evidence was not established; and (3) whether accomplice testimony was properly corroborated.

Walton argues an improper remark made by the prosecutor during voir dire was prejudicial. The prosecutor said he had presented certain evidence to the District Judge to be reviewed prior to his granting the prosecutor permission to file charges. In fact he had presented only an affidavit. Defense counsel objected to the prosecutor's statement, fearing the jury would be mislead. The court admonished the prosecutor to correct himself, which he did. It has been held when a prosecutor's improper statement is disclaimed or corrected there is no error. U.S. v. Parker (D.C.Cir.1969), 419 F.2d 679. After the jury was selected, the court gave the following instruction:

Now, ladies and gentlemen, I instruct you that those remarks by Mr. Hove were improper, that they were incorrect, and that they were erroneous, and that you are to disregard such statements and must not in any way consider them relative to this case.

The judge's admonition to the prosecuting attorney and his cautionary instruction to the jury are sufficient in this case not to result in prejudice to the defendant. The controlling question should be the good faith of counsel in saying what he said and the likelihood the defendant was unfairly prejudiced by what was said. Gladden v. Frazier (9th Cir.1968), 388 F.2d 777, 779.

Walton offers no evidence he was prejudiced by the remark nor can we find any. Probably the best evidence that the jury was not prejudiced by the prosecutor's remark is its verdict. Fred Walton was acquitted of all charges, and John Walton and his son John Jay were acquitted on one count of felony sale of dangerous drugs. A jury influenced by an inadvertent remark made by the prosecutor during voir dire would not throw out most the State's case. See State v. Toner (1953), 127 Mont. 283, 289, 263 P.2d 971, 974. After both sides had rested, the jury was instructed they were not to infer guilt by virtue of the fact the defendants were brought to trial.

Because Walton cannot show prejudice by a remark his counsel admits was inadvertent, it is not error for the court to deny his motion for a mistrial. We refuse to reverse on the mere ground of a corrected misstatement when there is no evidence of either bad faith on the part of the prosecutor or prejudice to the defendant.

Walton argues the State should be required to account for the seized marijuana at all times prior to its seizure by...