State v. Zlahn

• Decision Date: 19 August 2014
• Docket Number: No. DA 13–0184.,DA 13–0184.
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Appellee, v. Robert ZLAHN, Defendant and Appellant.

376 Mont. 245

332 P.3d 247

STATE of Montana, Plaintiff and Appellee,

v.Robert ZLAHN, Defendant and Appellant.

No. DA 13–0184.

Supreme Court of Montana.

Submitted on Briefs June 25, 2014.

Decided Aug. 19, 2014.

For Appellant: Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate Defender; Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant Attorney General; Helena, Montana, Scott Twito, Yellowstone County Attorney; Rod Souza, Deputy County Attorney; Juli Pierce, Deputy County Attorney; Billings, Montana.

Justice MICHAEL E. WHEAT delivered the Opinion of the Court.

¶ 1 Robert Zlahn (Zlahn) appeals from the judgment of the Montana Thirteenth Judicial District Court, Yellowstone County, sentencing him to Montana State Prison for a total of thirty years, with five suspended, after a jury convicted him of three felonies: Assault with a weapon, criminal endangerment, and tampering with or fabricating physical evidence.

ISSUES

¶ 2 We affirm and review the following issues:

1. Should we exercise plain error review to consider Zlahn's contention that the failure to immediately assign him counsel violated his constitutional and statutory rights?

2. Did the District Court err in refusing Zlahn's proposed jury instructions regarding factors affecting the reliability of eyewitness identification?

3. Did the District Court err in its evidentiary rulings related to condoms found in Zlahn's van, gunshot residue tests, line-up statistics and vantage point evidence?

4. Did the District Court abuse its discretion when it refused to declare a mistrial based on the court's comments to a co-conspirator?

5. Is there sufficient cumulative error to warrant a new trial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On July 1, 2011, Alanna Vincent (Vincent) was returning to her home in the Billings Heights after doing some grocery shopping at the nearby Walmart. She noticed two black men in a dented maroon van make a U-turn to follow her vehicle. She parked her vehicle in front of her home and watched as the van drove by slowly. As she was getting out of her car, the van turned around to pull up beside her. Through the open window, the driver, a short-haired black man with a gap in his teeth, asked her whether she wanted to get in the van and have intercourse. She noticed that he had an accent. Feeling threatened, Vincent told the men to leave her alone and ran into her home. There, she told her boyfriend, a body builder and former football player, Ryan Grosulak (Grosulak), what had happened.

¶ 4 Grosulak began driving around the neighborhood in search of the dented maroon van with two black men in the front seats. He caught up with a vehicle that matched that description not far away. He rolled down the window of his car, yelled at the men about their behavior towards Vincent using some choice language, and made an obscene gesture. A “skinny white kid” jumped out of the back and wanted to fight. Then the driver stepped out of the car and began returning Grosulak's obscenities. Grosulak stepped out of the car. When he did so, “just bullets just start flying, like I just got totally stunned.” He said the van's driver, who had short or buzzed hair and was wearing a bright green shirt, was the shooter, although he did not see the gun. He later testified that the gun was a silver pistol. Terrified, Grosulak dove back into his car and began both driving away and calling 9–1–1. While he was on the phone with the 9–1–1 dispatcher, he returned to the apartment.

¶ 5 Officer Joseph Dickerson (Officer Dickerson) was employed with the Billings Police Department at the time as a patrol officer. At about 2:57 p.m. he received a dispatch for shots fired in the Heights and arrived at a nearby residential address where another officer believed he had apprehended the suspects. The suspects were Zlahn, a black man who had short hair and was wearing a green shirt; Samuel Bettie (Bettie), a black man who had dreadlocks at the time; and Sean Bowers (Bowers), a young white man. The address belonged to Bowers's grandmother.

¶ 6 Officer Dickerson spoke with Zlahn at the scene. Officer Dickerson noticed that Zlahn had an accent. Zlahn said he had dropped his girlfriend off at work, then his vehicle had broken down and he had found someone to push his vehicle from where it had broken down several miles away to its current location. He denied involvement with the shooting.

¶ 7 Officers also spoke with Bowers at the scene. Bowers initially denied being in the van and said he had just met Bettie and Zlahn on the street. He also said that he was going to meet his mother at Walmart. He later changed his story and admitted to being present for the altercation. He said he heard three shots fired, but did not know who had fired them. He said the shots came from the driver's side of the vehicle. When officers asked Bowers where the weapon was, he pointed to a bush. There the officers recovered a gun. The gun was a .45 caliber that was ready to fire. Officer Dickerson bagged and inventoried the weapon.

¶ 8 The police transported Zlahn, Bettie and Bowers to the City Hall where a detective administered gunshot residue (GSR) tests to all three men. Zlahn became agitated when the detective said he would be doing GSR testing, while the other two men remained calmer. The GSR tests revealed that all three suspects had been in close proximity to the gun when it was fired; however, it did not show which of the suspects had fired the gun. Comparisons of DNA found on the gun with the suspects' DNA showed that Zlahn's DNA was a “major contributor” to the DNA profile, but that Bettie's was not. The expert who testified said that the DNA profile from the gun was a “mixed” profile with probably three to four contributors. She explained that the fact that Bettie's DNA did not appear on the gun did not mean that Bettie could not have handled the gun or been the shooter. It appears there was no comparison of Bowers's DNA with the DNA found on the gun.

¶ 9 Later on July 1, 2011, an officer arrived at Vincent's and Grosulak's apartment to transport them to the place where the van had been apprehended. Vincent and Grosulak both were sure the van in which the suspects were apprehended was the one they had seen. A detective arrived afterwards to show them photographic line-ups. Grosulak could not identify the shooter from any line-up because he said events had happened too quickly for him to be able to identify anyone. Vincent identified Zlahn as the person who had been driving the van when the offensive remarks were made. Following Zlahn's arrest, the keys to the van were found among Zlahn's belongings. The van was registered to Zlahn's girlfriend.

¶ 10 Zlahn was charged with felony attempted deliberate homicide in Yellowstone County Justice Court. Zlahn appeared before a justice of the peace on July 5, 2011, and, through a public defender who had come to court to represent all defendants on the jail-court calendar that day, requested to be represented by a public defender. The justice of the peace ordered the Office of the State Public Defender (OPD) to represent Zlahn and ordered the State to file an information in district court by July 12, 2011. Pursuant to an internal policy not to assign attorneys to felony defendants until after the defendants have been arraigned in district court, OPD did not assign a public defender to Zlahn immediately. The State did not file its information until July 21, 2011. Zlahn was arraigned in District Court on July 25, 2011. At his arraignment he was represented by another on-duty public defender, who spoke with him for approximately two minutes before court. The District Court ordered OPD to represent Zlahn. However, no public defender was assigned to represent Zlahn until August 11 or 12, 2011—approximately five weeks after he first appeared in court related to the felony charges against him and three weeks after he was arraigned. As a result, Zlahn did not have representation during the ten-day window in which he could have been advised of, and exercised, his right to substitute the judge. On April 20, 2012, the State amended its information to add, as an alternative to attempted deliberate homicide, counts of assault with a weapon, criminal endangerment and witness tampering. A jury trial was held from July 16–24, 2012.

¶ 11 At trial, eyewitnesses testified as to the shooter's identity. Bowers testified that Zlahn was the shooter. Two eyewitnesses testified that the driver of the van was the shooter. Zlahn sought jury instructions on factors that affect reliability of eyewitness identifications, such as difficulties with cross-racial identification. The District Court refused those instructions. Over Zlahn's counsel's objections, the District Court also permitted admission of evidence regarding a stockpile of condoms found in the suspect van; an officer's testimony about what criminals think about the strength of GSR testing; an officer's account of how often other witnesses, in other cases, have picked people out of photo line-ups; and an officer's video and testimonial evidence as to the eyewitnesses' vantage points. Zlahn's counsel sought and was denied a mistrial following a comment by the District Court that he believed reflected on Bowers's credibility.

¶ 12 The jury found Zlahn not guilty of attempted deliberate homicide, but found him guilty of assault with a weapon, criminal endangerment and witness tampering. The District Court sentenced Zlahn to a total of thirty years in Montana State Prison with five suspended.

STANDARD OF REVIEW

¶ 13 This Court reviews questions of statutory construction and alleged violations of the constitutional right to counsel de novo. See State v. Gatlin, 2009 MT 348, ¶ 16, 353 Mont. 163, 219 P.3d 874; Hammer v. State, 2008 MT 342, ¶ 9, 346 Mont. 279, 194 P.3d 699.

¶ 14 We review jury instructions in a criminal case to determine whether ...