STATE v BRADFORD
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No- 13828 I N THE SUPRME COURT O THE STATE O MONTANA F F THE STATE O MONTANA, F P l a i n t i f f and R e s p o n d e n t , -vsKENNETH WENDELL BRADFORD, D e f e n d a n t and A p p e l l a n t . Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t , H o n o r a b l e H. W i l l i a m C o d e r , J d u g e p r e s i d i n g . C o u n s e l o f Record: For Appellant: Thomas A. B a i z , J r . a r g u e d , Great F a l l s , Montana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana Mike McCarter a r q u e d , A s s i s t a n t A t t o r n e y G e n e r a l , Helena, Fontana J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana Randy Gray a r g u e d , G r e a t F a l l s , Montana Submitted: Decided: J a n u a r y 30, 1978 FE6 2 2 1978 M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court : Defendant was charged with t h r e e counts of aggravated a s s a u l t i n t h e D i s t r i c t Court, Cascade County. Two of t h e counts were dismissed by t h e D i s t r i c t Court p r i o r t o submission of t h e c a s e t o t h e jury. on t h e remaining count. The jury found t h e defendant g u i l t y Following d e n i a l of defendant's motion f o r a new t r i a l , he appeals t o t h i s Court. The county a t t o r n e y , i n a s i n g l e Information, charged defendant with t h r e e s e p a r a t e counts of aggravated a s s a u l t involving use of a s m a l l automatic p i s t o l , i n v i o l a t i o n of s e c t i o n 94-5-202 i ( l ) ( c ) , R.C.M. 1947. The a l l e g e d offenses occurred on November 6 , 1976, a t Calhoun's Saloon i n Black Eagle, Montana. Count I charged defendant with a s s a u l t i n g Steven K a t s i l a s , t h e b a r t e n d e r , i n s i d e ~ a l h o u n ' s . Count I1 charged defendant with a s s a u l t i n g Devon Ladd, a customer, i n s i d e the saloon, by placing t h e b a r r e l of t h e p i s t o l a g a i n s t Ladd's r i b s . Count I11 charged defendant with a s s a u l t i n g Devon Ladd o u t s i d e t h e saloon by f i r i n g t h r e e s h o t s i n t o Ladd's c a r a s he was d r i v i n g away. Defendant was t r i e d i n t h e D i s t r i c t Court on March 7 , 1977. The evidence p e r t a i n i n g t o Count I was d i r e c t evidence. Eye witnesses, including t h e v i c t i m , described t h e a s s a u l t . Their testimony was t h a t Steven K a t s i l a s came around t h e b a r t o h e l p h i s wife, who was on t h e f l o o r and being beaten by s e v e r a l o t h e r women. When he d i d t h i s , defendant came over t o K a t s i l a s , h i t him i n t h e f a e e , put a small p i s t o l between h i s eyes and t o l d him t h a t i f he attempted t o i n t e r f e r e , he would be shot. A t t h e time of t r i a l , Devon Ladd, t h e v i c t i m of t h e o t h e r two a s s a u l t s , could n o t be located t o appear and t e s t i f y . With- o u t h i s testimony, t h e S t a t e introduced no evidence on Count 11. The State's evidence on Count 111 was circumstantial. Witnesses who were in the bar that night testified Ladd was in the bar during the assault on Katsilas and left as it ended. The testimony indicated defendant followed Ladd out the door of the bar and within seconds, two witnesses, still inside the bar, heard three shots. Two witnesses, who had observed Devon Ladd's car earlier in the evening, testified there were no nicks or holes on the driver's side of the car. These witnesses and a sheriff's deputy testified that following the incidents at Calhoun's three bullet marks were found on the car. The deputy took photographs of the marks and these photogrqhs were admitted into evidence. The investigating officers found three .25 caliber shell casings in the parking lot and they were admitted into evidence. Witnesses testified that when Ladd returned to the bar with the police, approximately ten minutes after leaving, he appeared shaken, flushed, and his hair was messed up. Tom Whitehead, Calhoun's swamper, testified that he was just regaining consciousness after being knocked out when Ladd re-entered the bar with the police and, as he came in, Ladd told him that someone had shot at his car. Defendant's objections to the introduction of the photographs and shell casings into evidence and to Whitehead's testimony concerning Ladd's statement to him were all overruled. ~efendant'sobjection to the admission of Whitehead's testimony on Ladd's statement was that the statement was hearsay. The District Court admitted the testimony as falling within the res gestae exception to the hearsay rule. Defendant objected to the admission of the photographs and shell casings, arguing there was a lack of proper foundation for their admission. He f u r t h e r argued t h a t t h i s physical evidence was inadmissible under s e c t i o n 93-1301-7(32), R.C.M. 1947, which he claims s t a t e s t h a t a t h i n g once shown t o e x i s t r e l a t e s forward b u t n o t backward i n time. A t t h e c l o s e of t h e s t a t e ' s case-in-chief, f o r a m i s t r i a l , which was denied. be dismissed. defendant moved He then moved t h a t a l l counts Defendant argued t h a t t h e s t a t e , on Counts I1 and 1 1 f a i l e d t o prove reasonable apprehension of s e r i o u s b o d i l y 1 , i n j u r y on t h e p a r t of t h e v i c t i m , Devon Ladd, an element of t h e crimes charged. Regarding Count I , defendant argued t h e s t a t e f a i l e d t o prove i t s c a s e beyond a reasonable doubt. The D i s t r i c t Court, a f t e r hearing t h e arguments of counse1,dismissed Counts I1 and 1 1 on t h e grounds t h e r e was i n s u f f i c i e n t evidence t o prove 1 reasonable apprehension of s e r i o u s bodily i n j u r y on t h e p a r t of Ladd . Defendant then r e s ted . Count I was submitted t o t h e jury. The jury was admonished t o d i s r e g a r d t h e photographs and s h e l l casings (which r e l a t e d only t o Count I I I ) , a s though they were never admitted i n t o evidence. The jury found defendant g u i l t y of aggravated a s s a u l t on Count I . A f t e r t h e v e r d i c t was e n t e r e d , defendant moved f o r a directed verdict, i.e. judgment notwithstanding the v e r d i c t , on t h e ground t h a t t h e jury v e r d i c t w a s c o n t r a r y t o t h e weight of evidence. I n t h e a l t e r n a t i v e , defendant moved f o r a m i s t r i a l on t h e grounds t h a t t h e physical evidence and testimony admitted under Count 1 1 w e r e highly p r e j u d i c i a l and misled t h e j u r y on 1 Count I. These motions were denied. Defendant then f i l e d a motion f o r a new t r i a l , which was argued on A p r i l 7 , 1977. was denied. The motion A p r i l 8, 1977, t h e c o u r t imposed sentence on O n defendant of t h r e e years imprisonment, with a l l but s i x months suspended. Defenaant was ordered t o serve t h e s i x months i n t h e Cascade County j a i l , with c r e d i t f o r time already served. Execution of t h e sentence has been stayed pending t h i s appeal. The s o l e i s s u e on appeal i s whether t h e s t a t e ' s f a i l u r e t o dismiss Counts I1 and 1 1 p r i o r t o t h e beginning of t h e t r i a l , 1 when they knew Devon Ladd, t h e v i c t i m , would n o t be p r e s e n t t o t e s t i f y , denied defendant a f a i r t r i a l . Defendant' s contention i s t h a t t h e evidence which was admitted on Count I11 misled t h e j u r y on Count I. H e argues t h a t when t h e prosecution knew Devon Ladd would n o t be p r e s e n t a t t h e t r i a l , i t should have dismissed Counts I1 and 111. According t o defendant i t s f a i l u r e t o do so was p r e j u d i c i a l error. F i n a l l y he argues t h a t c e r t a i n evidence on Count I11 was inadmissible. The r u l e a p p l i c a b l e i s t h a t b e f o r e a judgment i n a c r i m i n a l case w i l l be reversed, p r e j u d i c e must be shown. v. T o t t e r d e l l , (1959), 135 Mont. 56, 336 P.2d 696; Hay, (1948), 120 Mont. 573, 194 P.2d 232. State S t a t e v. Prejudice i n a c r i m i n a l c a s e w i l l n o t be presumed, b u t r a t h e r must appear from t h e d e n i a l o r invasion of a s u b s t a n t i a l r i g h t from which t h e law implies prejudice. from t h e record. P.2d 625. The defendant must demonstrate p r e j u d i c e S t a t e v. Schleining, (1965), 146 Mont. 1, 403 The defendant i n a criminal case has t h e r i g h t t o a f a i r trial. I t i s axiomatic t h a t p r e j u d i c e can be implied from d e n i a l o r invasion of t h a t r i g h t . the However, t h e defendant must show t h a t h i s r i g h t t o a f a i r t r i a l was denied o r invaded. W hold, i n t h e i n s t a n t c a s e , t h a t defendant's r i g h t t o e a f a i r t r i a l was n e i t h e r denied nor invaded. Defendant has n o t convinced us t h e s t a t e ' s f a i l u r e t o dismiss Counts I1 and I11 p r i o r t o t r i a l prejudiced him on Count I. W might agree with defendant t h a t t h e prosecution should e have dismissed Count I1 when they knew t h a t Devon Ladd would n o t be a t t h e t r i a l , however, s i n c e no evidence was introduced on t h i s count, we f a i l t o s e e how defendant was prejudiced by t h e s t a t e ' s f a i l u r e t o dismiss p r i o r t o t r i a l . W b e l i e v e t h a t t h e evidence admitted on Count 1 1 could e 1 The a l l e g e d a s s a u l t i n n o t have misled t h e j u r y on Count I. Count I occurred i n s i d e t h e b a r , with t h e bartender a s t h e v i c t i m ; t h e a l l e g e d a s s a u l t i n Count 1 1 occurred o u t s i d e t h e 1 b a r with Devon Ladd a s t h e victim. Thus, t h e evidence on each of t h e s e counts was d i s t i n c t and independent of t h e o t h e r . The jury could e a s i l y keep t h e i n c i d e n t s and t h e evidence s e p a r a t e . Furthermore, t h e s t a t e had a r i g h t t o attempt t o prove Count 1 1 by c i r c u m s t a n t i a l evidence. 1 This Court has h e l d t h a t whatever may be e s t a b l i s h e d by d i r e c t evidence i n a c r i m i n a l case may a l s o be e s t a b l i s h e d by c i r c u m s t a n t i a l evidence. v. Cor, (1964), 144 Mont. 323, 396 P.2d 86. State The photographs, s h e l l c a s i n g s , and testimony of Whitehead a s t o Ladd's statement a r e c i r c u m s t a n t i a l evidence. Defendant argues t h a t , even i f c i r c u m s t a n t i a l evidence can be used i n a criminal c a s e , t h i s evidence was inadmissible and, therefore, prejudicial. The v i t a l i t y of t h i s contention i s l o s t i n our holding t h a t t h e evidence was admissible. Circumstantial evidence, to be admissible, must be relevant, State v. Fitzpatrick, (1973), 163 Mont. competent and material. 220, 516 P.2d 605. The evidence the state offered and had admitted on Count I11 was relevant, material and competent as to that count. Whitehead's testimony about Ladd's statement to him was admissible under the res gestae exception to the hearsay rule. State v. Medicine Bull, Jr., (1968), 152 Mont. 34, 445 P.2d 916. The photographs of Ladd's car and shell casings were also admissible. Defendant's reliance on section 93-1301-7(32), R.C.M. 1947, as construed in Doran v. United States Building and Loan Assn., (1933), 94 Mont. 73, 20 P.2d 835, is misplaced. That statute and case deal with disputable presumptions. Here, we are dealing with circumstantial evidence tending to prove that an assault was committed upon Devon Ladd. The admission of the evidence relating to Count 111 did not prejudice defendant on Count I even though Count I11 was subsequently dismissed. The court instructed the jury to disregard this evidence, which we believe sufficient under the facts of this case. An error in the admission of evidence can sometimes be cured by an admonition to disregard the evidence. Brown v. United States, (1967), 380 F.2d 477, cert. den. 390 U.S. 962, 88 S.Ct. 1062, 19 L ed 2d 1158. The striking of erroneously admitted evidence and admd.shing the jury to disregard it serves to cure the error. F.2d 216. United States v. Rojas, (1976), 537 Such is the case here. The judgment of conviction is affirmed. Justice We Concur: Justices. -
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