No. 94-618

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

FEfj 74. 19$@

TODD COLIN OATMAN,

Defendant and Appellant. """51

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Larry D. Mansch and Marcia M. Jacobson, Public

Defender's Office, Missoula, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

John Paulson, Assistant Attorney General, Helena,

Montana

Karen S. Townsend, Deputy County Attorney,

Missoula, Montana

Filed:

Submitted on Briefs: November 30, 1995

Decided: February 7, 1996

CYerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Todd Colin Oatman appeals from his conviction of five counts

of robbery, in a jury trial in the Fourth Judicial District Court,

Missoula County. We affirm.

The issue is whether the District Court erred in denying

Oatman's motion in limine to ban any mention at his trial of the

guilty pleas made by Victor and Gene Camp to the same charges.

Just after midnight on August 22, 1993, Marla Wollgast, the

shift supervisor at the Pizza Hut restaurant on Brooks Avenue in

Missoula, Montana, noticed a car drive around the restaurant and

then stop in the parking lot. Three men got out of the car and

entered the restaurant, which had no other customers at that hour.

The men were dressed in camouflage jackets and wore gloves. The

tallest man appeared to be in his twenties and wore sunglasses and

a black wig. One of the others, who appeared older, wore prescription glasses and a camouflage hat with ear flaps.

Waitress Sabrina Dulak asked the men if they preferred smoking

or nonsmoking seating. They gave conflicting responses. Then one

of them announced that they were undercover police officers on a

drug bust and were placing everyone under arrest. The tallest man

pulled out a revolver, pointed it at Wollgast and Dulak, and forced

the women back into the kitchen, where Elizabeth Olson was doing

dishes. The men ordered the three women to lie down on the floor

and tied their hands behind their backs with baling wire.

Mark Alexander, another Pizza Hut employee, returned from

delivering pizzas a few minutes later. The men forced him to lie

2
down in the kitchen and tied him up with baling wire like they had

the other employees.

Demanding instructions from the employees on how to operate

the restaurant's tills, the men opened each till and removed the

money from inside. They then took the employees' wallets, purses,

and money. The robbers left the restaurant after telling the

employees to stay put or get hurt.

After the robbers left, Wollgast was able to untie herself and

the others. Dulak called the police. The employees gave the

investigating officers descriptions of the robbers, and Alexander

made sketches of two of them.

Approximately a month later, an article appeared in the local

newspaper concerning four suspects in an attempted robbery of an

armored car. The article contained photographs of Oatman, Victor

Camp, Gene Camp, and Daniel Koening, and indicated that the men had

also been linked to the Pizza Hut robbery. The Pizza Hut employees

recognized the three Pizza Hut robbers from the newspaper photos

and contacted the police. The employees later picked out the

robbers from photo lineups.

Investigators searched Oatman's residence, Gene Camp's

residence, and a mini-storage unit rented by Gene Camp. They

recovered a camouflage jacket at Oatman's residence and two

revolvers at Gene Camp's residence. From the mini-storage unit

they recovered a black bag containing two wigs. Under FBI

questioning on September 25, 1993, Oatman initially identified the

3
black bag as his, but when he saw the wigs inside he said that it

probably wasn't his bag.

Oatman, Gene Camp, and Victor Camp were each charged with five

counts of robbery at the Pizza Hut (a count for robbing each of the

four employees, and a fifth count for robbing the restaurant). The

Camps both pled guilty to the charges.

Prior to his trial, Oatman filed a motion in limine asking the

District Court to prohibit any mention of the convictions of

himself and Victor and Gene Camp on federal charges arising from

the robbery of the armored car. The motion also asked the court to

prohibit testimony about a conversation in which Daniel Keening and

Gene Camp discussed Oatman's participation in the Pizza Hut

robbery, and to prohibit the robbery victims from mentioning their

recognition of Oatman through the newspaper article. The court

granted the first two requests. As to the third request, the

prosecution and defense stipulated that the robbery victims would

be allowed to testify that they identified Oatman through the

newspaper photograph but the newspaper article itself would not be

admitted into evidence and the witnesses would not mention the

article's description of the robbery of the armored car.

Oatman also moved the court to prohibit any mention of the

guilty pleas, plea bargain agreements, or convictions of Victor and

Gene Camp on the Pizza Hut robbery charges. The motion was

considered and denied on the first day of trial. In taking

judicial notice of the guilty pleas at trial, the court instructed

the jury:

4
Members of the jury, the Court may take judicial

notice of public acts, places, facts, and events. YOU

may treat such fact as conclusive. But since you are the

triers of fact in this case, you are not required to do

SO.

The Court takes judicial notice of the pleas of

guilty in Cause Nos. 10878 and 10879 by Victor Wayne Camp

and Gene Austin Camp.

A Missoula police detective testified that he was in court when the

Camps admitted to their participation in the Pizza Hut robbery.

Wollgast identified Oatman at trial as the tall robber with

the gun and wig. The other three Pizza Hut employees identified

Oatman as one of the robbers, as well. The jury also heard

testimony from witnesses for Oatman that he had been residing with

Victor Camp and had a close association with Gene Camp.

Oatman's defense was that he had been misidentified as the

tall robber. His attorney stressed the discrepancies between the

Pizza Hut employees' original description of the height of the tall

robber (six feet) and Oatman's actual height (six feet, five

inches).

During closing argument, the prosecuting attorney stated:

Now we know who robbers number two and number three were.

They were Gene Camp, a friend of the Defendant's father,

and Victor Camp, the Defendant's roommate at the time.

Gene Camp has pled guilty to those five robberies at the

Pizza Hut. Victor Camp has pled guilty to those five

robberies at the Pizza Hut.

Notice that all four victims of these five robberies

selected Gene Camp out of the six-person photo spread as

being one of the individuals in the robbery. .

YOU also saw some wigs, two wigs, that were found during

a search of Gene Camp's storage facility, Gene Camp, a

friend of the Defendant and a close friend of the

Defendant's father.

5
The prosecuting attorney also commented in closing:

You will remember that they, each and every one of them,

identified Gene Camp from the photo 1ine;ups.

Was Marla Wollgast accurate about picking out Gene Camp

as one of the robbers that night? Of course, she was.

We know that, because he's pled guilty.

Was Mark Alexander accurate about picking out Gene Camp

as one of the robbers that night? Of course, he was. He

was one of the robbers. Pleaded guilty.

Was Sabrina Dulak accurate about picking out Gene Camp as

one of the robbers? He's pled guilty.

Was Elizabeth Olson accurate about picking out Gene Camp

as one of the robbers? Yes, she was, because he's pled

guilty.

The prosecutor went on to argue that the Pizza Hut employees were

likewise accurate in their identification of Oatman as one of the

robbers, despite the discrepancies which Oatman had pointed out

between the victims' original estimates of the height of the tall

robber and Oatman's actual height.

The jury convicted Oatman on all five counts of robbery

charged against him. Oatman appeals.

Did the District Court err in denying Oatman's motion in

limine to ban any mention at his trial of the guilty pleas made by

Victor and Gene Camp to the same charges?

Oatman contends that the convictions of Victor and Gene Camp

for the Pizza Hut robberies did not make it more probable that he

was the third robber. He maintains that evidence of the Camps'

guilty pleas was irrelevant under Rule 401, M.R.Evid. Moreover, he

asserts that the danger of unfair prejudice from informing the

6
jurors of the guilty pleas outweighed any probative value of that

information, rendering the evidence inadmissible under Rule 403,

M.R.Evid.

A district court has broad discretion to determine whether

evidence is relevant and admissible. The test of relevance is

whether an item of evidence will have any value, as determined by

logic and experience, in proving the proposition for which it is

offered. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117,

1119. The court's determination is subject to review only for

abuse of discretion. State v. Sadowski (1991), 247 Mont. 63, 69,

805 P.2d 537, 541. Atria1 court's weighing of potential prejudice

against probative value will likewise be upheld absent an abuse of

discretion. State v. Laird (1987), 225 Mont. 306, 312, 732 P.2d

417, 421.

Oatman argues that the prosecution's comments in closing

argument, set forth above, confirm that the purpose for which

information about the Camps' guilty pleas was offered was as

evidence of his guilt. We disagree. The prosecution's comments

shown above are addressed to the credibility of the Pizza Hut

employees--specifically, their credibility in identifying the

robbers. The credibility of the Pizza Hut employees' identification of him was an issue raised by Oatman.

This Court has not previously addressed the precise issue of

whether a nontestifying codefendant's guilty plea is admissible to

corroborate an eyewitness's identification of the defendant as one

of the perpetrators of the crime. We have noted "the general

7
principle that evidence of a codefendant's guilty plea is inadmissible." State v. Price (1988), 234 Mont. 144, 150, 762 P.2d 232,

236. We have recognized, however, the exception to this general

principle when evidence of a codefendant's guilty plea is offered

to aid the jury in assessing the credibility of a codefendant who

testifies at the defendant's trial. - I Price 762 P.2d at 236. In so

doing, we cited United States v. Halbert (9th Cir. 1981), 640 F.2d

1000, in which the Ninth Circuit Court of Appeals expounded upon

the admissibility of codefendants' guilty pleas.

As a principle of general acceptance, the guilty

plea or conviction of a codefendant may not be offered by

the government and received over objection as substantive

evidence of the guilt of those on trial. While the

evidence may not be used to establish a defendant's

guilt, it may properly be considered by the jury in

evaluating witness credibility. Admissibility of the

plea turns on the purpose for which it is offered. When

that purpose is to further the jury's difficult task of

evaluating credibility, it is relevant and admissible

without reference to the identity of the offering party.

Halbert, 640 F.2d at 1004 (citations omitted).

In the present case, the prosecutor asked the District Court

to take judicial notice of the Camps' guilty pleas as probative of

the accuracy of the Pizza Hut employees' identification of the

robbers. In granting that request, the court stated:

Well, the Court is going to allow the questions about the

guilty pleas and the plea bargain based on the arguments

of counsel here. It seems that the credibility of those

witnesses and their identifications are at issue, and

that their testimony about the process of identifying the

Camps is relevant to their credibility and will assist

the jury in making a final determinationL.1

This statement of the purpose for the court's decision to inform

the jury that it took judicial notice of the guilty pleas corre8
spends to the purpose for which such evidence is admissible under

the law as discussed by the Ninth Circuit Court of Appeals above.

As stated above, Oatman's defense to the charges against him

was that the Pizza Hut employees had misidentified him as one of

the robbers, especially because of the height issue. The employees 1 credibility in identifying the robbers was thus placed at

issue. The employees' correct identification of the Camps as two

of the robbers bolstered their credibility. On balance, we

conclude that the court did not abuse its discretion in deciding

that the probative value of informing the jury that the court had

taken judicial notice of the Camps' guilty pleas outweighed the

prejudicial potential of that information. We conclude that under

the circumstances here presented, evidence of the Camps' guilty

pleas was admissible.

Finally, this Court has ruled that taking judicial notice of

proceedings against a codefendant does not taint the fairness of

the defendant's trial if the court instructs the jury that it has

the prerogative to accept or reject the judicially-noticed facts as

evidence. State v. Hart (1981), 191 Mont. 375, 389, 625 P.Zd 21,

29, cert. denied, (1981) 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d

102. The jury was so instructed at Oatman's trial.

We affirm the judgment of the District Court.

.
we concur: