STATE v BAKER

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I N THE SUPREME COTJRT O THE STATF O F MONTANA F STATE O MONTANA, F P l a j n t i f f and R e s p o n d e n t , VERN TRAVIS BAKER, Defendant and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t , I n and f o r t h e County o f M i s s o u l a , The H o n o r a b l e James B. W h e e l i s , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Morgan Modine & D o u g l a s Anderson; M i s s o u l a , Montana For Respondent : Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l ; H e l e n a , Montana R o b e r t J . Deschamps 111, County A t t o r n e y ; M i s s o u l a , MT B e t t y Wing, Deputy County A t t o r n e y Karen Townsend, Deputy County A t t o r n e y S u b m i t t e d on B r i e f s : Decided: April 25, February 1 6 , 1989 1989 Mr. J u s t i c e F r e d J . Weber d e l i v e r e d t h e O p i n i o n o f t h e C o u r t . Defenclant was c o n v i c t e d on a jury verdict before the D i s t r i c t C o u r t , F c u r t h J u d i c i a l D i s t r i c t , M i s s o u l a County, o f robbery, a felony; t h e f t , a felony; tamperinq with a w i t n e s s , a f e l o n y ; and t h e f t , a misdemeanor. The D i s t r i c t C o u r t s e t a s i d e t h e robbery conviction. D e f e n d a n t was s e n t e n c e d t o 5 0 y e a r s a t P o n t a n a S t a t e P r i s o n f o r f e l o n y t h e f t , and 5 0 y e a r s f o r tampering with a witness. He was a l s o s e n t e n c e d t o 6 months i n jail f o r misdemeanor t h e f t . run concurrently. These s e n t e n c e s a r e t o Defendant a p p e a l s t h o s e c o n v i c t i o n s . W e affirm. The i s s u e s a r e : Did the District Court err in consolidating Did 1. the District Court err in admitting the charges? 2. certair, evidence? 3. Did t h e D i s t r i c t C o u r t e r r i n g i v i n g a n i n s t r u c t i o n on a c c o u n t a b i l i t y d u r i n g j u r y d e l i b e r a t i o n s ? On F e b r u a r y 5 , 1987, t h e P i s s o u l a County A t t o r n e y f i l e d a n i n f o r m a t i o n c h a r g i n g M . Baker w i t h r o b b e r y , a f e l o n y . r March 6 , 1987, Baker was c h a r g e d w i t h f e l o n y t h e f t - . Mr. On The s e c o n d i n f o r m a t i o n was ame~decl t o i n c l u d e a c h a r g e o f b u r glary. On Pay 4 , 1987, d e f e n d a n t was t r i e d on t h e r o b b e r y count h u t t h e jury d i d not reach a v e r d i c t . Later the infor- m a t i o n c h a r g i n g r o b b e r y was amended t o i n c l u d e t h e o f f e n s e o f tampering with a witness. After the trial on Kay 4, 1987, the county a t t o r n e y f i l e d a t h i r d i n f o r m a t i o n c h a r g i n g d e f e n d a n t w i t h misdemeanor theft. Thereafter, charges and that t h e c o u n t y moved t o c o n s o l i d a t e a l l t h e m o t i o n was granted on O c t o b e r 28, 1987. The c o n s o l i d a t e d c a u s e s w e r e t r i e d by j u r y on November 33, 1987. Defendant was found g u i l t y of robbery, felony theft., tampering with a wi t-ness, and misdemeanor theft. Defendant moved the court to set aside the verdicts of guilty to robbery and felony theft. The court subsequently set asifiethe verdict of guilty of robbery. The relevant facts in this case began on December 13, 1986, when Gary Deschene reported to the Missoula County Sheriff's office that a gun was missing from his home. Following a Crimestopper's tip, detectives searched the home of Mr. Baker for this gun, but did not find it. On July 14, 1987, a skindiver found a gun underneat.h Buckhouse Bridge in the Bitterroot River. He turned the gun over to the sheriff and Mr. Deschene isentified it as the one missing from his home. At trial, Mr. Raker's girlfriend, Katherine Lamb, testi-fied that Mr. Baker had told her he had a gun he had to dispose of, and that she haZ accompanied him to the Buckhous~ Bridge where Nr. Baker threw the gun into the river. A friend of Mr. Raker, Lance Sprout, testified at trial that on January 17, 1987, he and Mr. Faker entered the home of Lloyd Killumsen and took two rifles and a box of pistols. Mr. Sprout stated that Mr. Baker later went hack to that residence and took a shotgun, binoculars, and several other items. Mr. Sprout also testified that five days later, on January 22, 1987, he approached his cousin about borrowing a car. The cousin arranged for Mr. Sprout to borrow a car from a friend. The car Mr. Sprout borrowed was a blue Honda Civic with personalized license plates which said, "MARSBAR." Mr. Sprout stated that he picked up Mr. Baker in the borrcwec? czr, and after a couple of st-ops, they decided to rob Paylesc Shoe Store in Missoula. Mr. Sprout testified that he and Mr. Baker robbed the store, using the sawed-off shotgun taken fron the Willumsen residence. A citizen driving by observed the two men leavinq Payless Shoe Store with stockings over their heads. The citizen followed them as they drove a-way, obtaining a vehicle description and license plate identification. Later that night the car was stopped by a Missou1.a deputy who observed it near the Missoula County Courthouse. b?hen the car was searched, detectives found items used in the robbery and items taken from the store. They also found rifles and other items taken from the Willumsen home. When detectives searched defendant's grandmother's house, where Mr. Baker lived, they found a sh-otgun scabbard in her car, also belonging to Mr. Willumsen. At trial Mr. Raker' s girlfriend, Katherine Lamb, testified that Mr. Raker called her while he was awaiting trial-, and asked her to testify that he had called her on the phone at 8 : 0 0 p.m. on the night of the robbery. She testified that he later sent a letter to her in which he suggested that she get together with his mother and grandmother, decide on how they would answer questions, and "rehearse, rehearse, rehearse." Be said they all needed to stick together and not discuss It with anyone else "until we have it down to a 'T'." This letter, which was admitted into eviderc~ at trSal, implied that an alibi should be formulated. I Did the Distrlct Court err in consolidating the charges? The first issue cn appeal is whether the District Court properly joined the various charges against Mr. Baker. The relevant statute on joinder, 5 46-11-404, MCA, pro~ridec in pertinent part: (1) An indictment, information, or complaint may charge two or more different offenses connected together in their commission, different statements of the same offense, or two or more different offenses of the same class under separate counts. If two or more indicl:ments, informati.ons, or complaints are filed in such cases in the same court, . the court may order them to be consolizated. . (4) Tf it appears that a defendant or the state is prejudiced by a joinder of related prosecutions or defendants in a sin.cf1.e charge or by joinder of separate charges or defendants for tria,, the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require. . Joinder is proper where the offenses are logically linkec?.hy motive and where overlapping proof must be offered. United States v. Hoelker (9th Cir. 1985), 765 F . 2 d 1422, 1425. In this case the burglary and felony theft charges stemmed from the same incident, which was the burglary of the Willumsen residence. These charges were connected to the robbery charge in that the gun stol-en from Mr. Willumsen was used in the robbery. Additicnally, other items stolen from the Will-umsen residence were found in the car which was used in the robbery. Separate trials would have required overlapping evidence, and many of the same witnesses. The robbery supplied the motive for the witness tampering charge which was therefore properly joined. State v. Bingman (198?), 745 P.2d 342, 44 St.Rep. 1813. There was evidence indicatinq that the misdemeanor theft of the Deschene gun, committed a month prior to the other crimes, was done in furtherance of a plan to commit an armed rohhery. The crimes were logically connected by motive and there was a large area of overlapping proof among the separate charges. We therefore hold that the District Court's joincler OF these charges was not clearly erroneous. Having concluded that joinder was not clearly erroneous, the second inquiry is whether the motion to sever should have been granted due to prejudice to the c?efe~dant. F e have l previously enumerate6 three basic types of prejudice which may occur on consolidation. State v. Campbell (1980), 189 Mont. 107, 120, 615 P.2d 190, 198. State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 514-515. In Campbell, we stated: The first kind of prejudice results when the jury consi6ers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type o? prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defend-ant wishes to testify on his own behalf on one charge but. nct on another. (Citation omitted.) 615 P.2d at 198. Prejudice to defendant is balanced against judicial economy. This balancing is left to the sound discretion of the trial judge and the appellate court will not substitute i.ts jusgment for that of t-he trial court, absent a showing of abuse of discretion. Zudicial economy weighs heavily in the balancing process, and the burden is on the defendant to show t . h a t prejudice outweighs this. Campbell, 615 P.2d at 198. In the present case defendant contends that consolidation of the charges was prejudj-cj-a1because the number of charges against him allowed the jury to regard him as a "had man." In the recent case of St.ate v. Slice (19881, 753 P.2d 1309, 1311, 45 St.Rep. 752, 754, this Court stated that the cumulative effect of multiple charges is "rarely a sufficient reason to justify severance." In Slice, the defendant faced 16 criminal counts at trial, yet the court found insufficient prejudice to require severance. See also, Campbell, 615 P.2d at.199, (where the district court. refused to sever a habitual traffic offender charge); Orshorn, 555 P.2d at 515. - In support of his contention that the first type of prejudice occurred, Mr. Baker cites answers given by two jurors when the jurors were polled after trial. In polling the jurors, the court asked if the multiple charges made them think that the defendant was more likely to be guilty. The court and defense counsel framed this question several different ways in attempts to clarify precisely what was being directed the jurors asked of the jurors. The court. fina.l.l?as follows: THE COURT: Well, see if you can answer that. If you can't understand, just say, "I can't answer. I don't understand." Two jurors responded, "I dcn't know." It is not at all clear that these jurors were indicating that they may have convicted Mr. Raker due to multiple charges. The jurors may have been responding to the court's direction to not answer if they did not understand the question as posed. F e conclude that neither the cumulative effect of the l multj-ple charges nor the jurors' answers to the polling demonstrates prejudice to the defendant sufficient to deny "In showing prejudice, it is not suffihim a fair trial. cient that the defend-ant prove some prejudice or that a better chance of acquittal. exists if separate trials are held. Rather, the defendant must show the prejudice was so great as to prevent a fair trial." Campbell, 615 P.2d at 198 (citing United States v. Dohm (5th Cir. 1979), 597 F.2d 535, 5 3 0 ; Vnited States v. Martinez (1st Cir. 1973), 479 F.2d 824, 828.) F7e affirm the holding of the District Court that defendant faLLed to demonstrate prejudice which would require severance. Mr. Raker also contends that the second type of prejudice from joinder occurred at his trjal. This type of p r e j u d i c e e x i s t s when t h e jury u s e s proof of g u i l t on one c o u n t i n t h e i n f o r m a t i o n t o c o n v i c t a d e f e n d a n t on a n o t h e r count i n t h e i n f o r m a t i o n even though proof would h a v e been i n a d m i s s i b 1 . e a t a s e p a r a t e t r i a l or t h e second c o u n t . A s we stated i n Cam~hell: N c p r e j u d i c e o f t h i s n a t u r e w i l l b e found when t h e evidence distinct. when the forward, confused separate. p r e s e n t e d a t a j o i n t t r i a l i s s i m p l e an? T h i s r u l e i s b a s e d on t h e r a t i o n a l e t h a t charges are f e w and the evidence straight t h e r e i s no r e a s o n t o assume t h e j u r y was and c o u l d n o t k e e p t h e r e l e v a n t e v i d e n c e (Citations omitted. ) I n t h e p r e s e n t c a s e t h e c h a r g e s were n o t c o m p l i c a t e d a n d t h e e v i d e n c e was n o t complex. Defendant h a s f a i l e d t o stat^ what e v i d e n c e was u s e d t o f i n d him g u i l t y on one c o u n t whj-ch would h a v e been i n a d m i s s i b l e i n a s e p a r a t e t r i a l . The j u r j , was i n s t r u c t e d t h a t e a c h c o u n t c h a r g e s a d i s t i n c t o f f e n s e en6 t h a t e a c h c o u n t must b e d e c i d e d s e p a r a t e l y . Defendant prejudice suppcrt jurors of contends, however, that t.his second t y p e of were c o n f u s e d . In c o n t e n t i o n h e n o t e s t h a t upon p o l l i n g t h e occurred this after trial, because the jurors three jurors said they did not belielTe d e f e n d a n t was i n t h e P a y l e s s S t o r e when it was r o b b e d . argues t h a t t h i s PF' shows t h e j u r o r s were c o n f u s e d b e c a u s e n o e v i d e n c e was p r e s e n t e d which p o r t r a y e d d e f e n d a n t i n a l i g h t other t h a ~ as c c > n f u s i o n was perpetrator. "rampant" As additional i n the t r i a l , evidence that defendant notes t h a t t h e p r o s e c u t o r made a n i n c o r r e c t s t a t e m e n t a b o u t t h e e v i d e n c e i n cl.osing argument. However, t h e j u r o r s were a l s o p o l l - e d on t-he speci5j.c q u e s t i o n of whether t h e m u l t i p l e charges caused confusion in their minds, and each juror answered, "No. I' D e f e n d a n t h a s n c t m e t his b u r d e n o f showing t h e s e c o n d t y p e n F p r e j ~ l d i c e . PTe t h e r e f o r e cnnc1ud.e that: t h e ( J e F e ~ d a n th a s demonstrated no prejudice sufficient to deny him a fair trial or to require severance under S 46-11-404 (4), MCA. We hold that the District Court's refusal to sever the charges was not clearly erroneous. We affirm the holding of the District Court on the motion to sever. II Did the Pistrict Court err in admitt-ing certain impeachment evidence? Mr. Baker objects to the admission of a letter written by him to Randy Clark, an inmate at Montana State Prison. The letter contained a message to Lance Sprout, who wa.s aLse lncarcerated at Kontana State Prison. In the message to Mr. Sprout, r . Baker suggests that "if someone accj.dentaIly somehow bumped his head and he got amnesia, they could not hold that egainst him," and "possibly the next statement in court will be so mixed up that it will he thrown out." At the end of the letter, Mr. Raker offers to send money, indi-. cating that he will send generous amounts if his innocence is proven. This letter was introduced by the State on cross examination of Mr. Baker. The State first asked Mr. Raker if it would have been tc his advantage if Lance Sprout had not testified at Mr. Baker's trial, and if it would have been to his advantage if Mr. Sprout had gotten amnesia while he was at the prison. The State next asked Mr. Baker if he had ever written a letter making those suggestions. Mr. Raker's answers to the State's questions were evasive. Also, by his answers he attempted to suggest that the possibility of amnesia was Mr. Sprout's idea. Mr. Faker was then asked to read the letter to the jury. Defense ccunsel objected on grounds of relevancy an2 foundation. On appeal, the 6.efense argnes that the letter was irrelevant an? pre j u ? i c j a . ! The letter was relevant to show consciousness of guilt ancl is admissible under Rule 404(b) M.R.Evid., which provides: Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in crzer to show that he acted in conformity therewith. It malr, however, be admissible for other purposes, such. as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The second sentence of this subpart provides a list of exceptions to the general rule that other crimes, wrongs or acts are inadmissible to prove a person's character. Evidence of act may be admissible t.o prove any of the enumerated reasons; however, this list is not exclusive and has been held to include evidence which tends to prove consciousness of gullt. State v. Shaw (1982), 199 Mont. 248, 648 P.2d 287, 289. In Shaw, evidence of intimidation of a witness was an act which was admissible to show consciousness of guilt. See also State 7 7 . Clark (1984), 209 Mont. 473, 682 P.2d 1339, 1350. in Shaw this Court stated that "[iln a criminal prosecution any attempted intimidation of a witness is properly attributable to a consciousness of guilt and testimony relatShaw, ing thereto is relevant and admissible in evidence." 648 P . 2 d at 389-290, quoting People v. Smith (1972), 3 I1l.App.3d 958, 279 N.E.2d 512, 513. In Clark we noted that this rationale applies to documentary as well as testimonial evidence. Clark, 6 8 2 P . 2 6 at 1350. In the present case we believe that the letter in which Mr. Baker attempted to influence Mr. Sprout ' s testimony evidences defendant ' s conAs such, we conclude that the letter sciousness of g u i l t . was relevant and admissible pursuant to Rule 404(b), M.R.Evid. Defendant argues that even if this evidence were admissible as "other acts" pursuant to 404(b), the four element test of admissibility and procedural requirements established in State 1 7 . Just (1973), 184 Mont. 262, 602 P.2d 9 5 7 , were not met. However, the Just requirements do not apply in the present case. The defendant in Shaw raised the same argument but this Court disagreed, stating: Both the admissibility test. and the procedural requirements found in Just pertain to evidence of other prior crimes but do not apply to evidence establishing consciousness of guilt regarding the crime with which the defendant is charged. Shaw, 648 P.2d at 290. We hold that the District Court's ruling which admitted the letter was not clearly erroneous. Did the District Court err i.n giving an accountabil-ity instruction during jury deliberations? During deliberations, the jury submitted a question to the court which stated, "The charge of robbery, Instructior. No. 8, how does it appl-Y to Instructi-on 11 regarding accomplLce?" The court and counsel for both parties considered this question in chambers hut were unsure what the jurors actually wanted to know. After the court asked the jurors to clarify their question, and after discussion with counsel, the court decided to instruct the jury on the offense of The accountability as defined by 5 5 45-2-301 and 302, KCA. jury later returned verdicts of not guilty to burglary of the Willumsen residence, but guilty of theft of the items taken in that burglary. Defendant argues that this is an inconsistency caused by the giving of the accountability instruction. Defendant also contends that the accountability instructicn was a material variation of the crimes charged and that it was error to give this instruction after closing argument because he was precluded from discussing this theory with the 9 , 180 Mont. 307, 590 P . 2 d jury, citing State v. Bretz 1 614. Defenclant's ultimate contention on this issue is that the District Court erred in not setting aside the verdict. of guilty to theft. We decline to address whether the court erred in giving this instruction during jury deliberations because we conclude that the jury's determination that Mr. Baker was guilty of felony theft need not be premised on an accountability theory in this case. There was sufficient evidence presented for the jury to find Mr. Baker guilty of theft without the accountahj!j - t y instruct:iorl, ar,d without finding him guilty of burglary. We hold that the Cistrict Court properly refused to set aside the convj.ct.i.on. for theft.

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