No. 84-540 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsBERNARD PEASE, JR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer argued, Asst. Atty. General 

Harold F. Hanser, County Attorney, Billings, Montana 

Charles A. Bradley, Deputy County Atty., Billings 

Submitted: ,-;May 31, 1986 

Decided: August 8, 1986 

Filed: 

AUG F - 1986 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The defendant, Bernard Pease, Jr . , appeals from the 

judgment and jury verdict finding him guilty of deliberate 

homicide and the denial of his motion for a new trial in the 

Yellowstone County District Court. He raises five issues on 

appeal: (1) Whether admitting a prior inconsistent statement 

of one person through the testimony of a second person was 

error; (2) whether probable cause existed to issue a search 

warrant for the residence and vehicles of the defendant and 

his family; (3) whether certain items of evidence and 

testimony were inadmissible character evidence; (4) whether 

the District Court erroneously replaced a juror during trial 

who had admitted to and would be charged with a felony; and 

(5) whether the State's closing argument violated the 

defendant's rights to due process and a fair trial. We 

affirm the jury verdict and judgment thereon and the denial 

of defendant's motion for a new trial. 

At 7:30 a.m. on Thursday, December 1, 1983, Jeffrey 

Miller discovered the victim's body on his way to work. It 

was lying in the snow near two garbage dumpsters in an alley 

between North 12th and North 13th Streets in Billings, 

Montana. Mr. Miller asked his employer to call the police 

and officers and detectives arrived within ten minutes. 

The young Indian woman's body was nude, frozen and 

almost completely exsanguinated. The officers found very 

little blood at the scene. The victim had been stabbed 

repeatedly in the chest and her throat was cut. The slipped 

skin on her ankles and drag marks in the snow suggested the 

body had been dragged by the legs to the location near the 
dumpsters. There were footprints near the body and many tire 

tracks in the alley. There was a strand of orange yarn in 

the victim's hair. Frozen ridges on her abdomen, which 

appeared to be from some kind of wrinkled material, 

disappeared as the body thawed. Her left foot appeared to be 

further decomposed than the rest of the body. The detectives 

later made a plaster cast of the decomposed foot to preserve 

the pattern of ridges and dents on the foot. According to 

the pathologist, Dr. Mueller, the victim had been dead from 

five to ten days when she was found, with the middle time 

most probable. This suggested a time of death in the early 

morning of November 24, 1983. During an autopsy, Dr. Mueller 

collected blood samples, head and pubic hairs, and fingernail 

scrapings from the victim. 

The police identified the victim as Marie 

LaFromboise/Philbrick, a 23 year old woman who sometimes 

worked as a prostitute in Billings. She lived with two 

roommates, John Salas and Brenda Cunningham. Both last saw 

her Thanksgiving morning, November 24, 1983. Salas saw her 

walking in downtown Billings around 3:00 a.m. and Cunningham 

saw her about 3: 30 a.m. talking to a man in a yellow pickup. 

The defendant drove a yellow and white pickup. 

On one side of the alley where the body was found was a 

large quonset hut style building. The defendant worked at 

the Fireplace Store, owned and operated by the Pease family, 

which was in that building. An elderly man named Jim Andrews 

lived in a house trailer near the Pease business, about 50 

yards from the dumpsters. About 3:30 or 4:00 a.m., the 

morning the body was found, his dog began barking. As he 

opened his door to let the dog out, he heard the lids 
clanging over the dumpsters. When he shouted in the 

direction of the dumpsters, the clanging stopped. 

On January 5, 1984, the owner of an automotive 

electrical shop, located about two blocks away from the Pease 

business, found a sleeping bag and some jute carpet backing 

behind a fence alongside his building. He saw that the 

sleeping bag had "a lot of blood on it" so he called the 

police. When the officers arrived, they collected the 

sleeping bag and carpet backing and found orange carpet 

fibers similar to those in the victim's hair. They also 

found bottles, pieces of brick, and a plum bob and observed 

holes in the sleeping bag. 

Later that afternoon, the officers went to the nearby 

Pease masonry business seeking information about the pieces 

of brick. They found similar brick in the office and in the 

outside yard. The next day, they returned and received 

signed permission from Bernard Pease, Sr., the defendant's 

father, to search the premises for evidence in the homicide. 

The search soon revealed orange shag carpet similar to 

the strands found in the victim's hair and a large piece of 

jute carpet backing with a section cut out. This piece 

matched that found with the bloody sleeping bag in fiber, 

weave, size and type of cut. When the officers searched the 

wash bay area in the rear of the Pease business, they found 

white cardboard boxes with blood on them, blood on the floor, 

a bloody paper napkin stuck to part of a box, hair, a 

pornographic magazine depicting violence toward women, more 

orange carpet strands, a large piece of orange carpet, and 

used and unused condoms. The defendant was one of only four 

people who had access to this part of the building; the 
others were his parents and an uncle. Along one wall near 

the floor in the wash bay area there were several heat pipes 

which had the dust rubbed off in small areas. The cleaned 

areas matched the bumps and lines in the victim's left foot. 

According to the pathologist, hot, dry heat could have caused 

the foot to dehydrate and decompose faster than the rest of 

the body. 

When the police captain realized the wash bay was the 

crime site, he decided to take statements from the Pease 

family. The defendant walked out so the captain followed him 

and asked him to come back. 

On the basis of the evidence found during this search, 

the officers obtained search warrants for the Pease residence 

in Billings, for a trailer they owned in Fort Smith, Montana, 

and for another search of the business. In the defendant's 

room at the residence the police found used and unused 

condoms like those found at the scene of the homicide, 

pornographic magazines featuring female bondage and women's 

panties saturated with multiple semen deposits. The yellow 

pickup belonging to the Pease business and generally driven 

by defendant had in it a flowered yellow sheet stained with 

what appeared to be blood. In the car registered to the 

defendant, the police found a payroll stub made out to 

defendant dated the night the victim disappeared and a condom 

like those found in his room and at the scene of the 

homicide. 

The defendant was arrested February 1, 1984, and 

charged with deliberate homicide on February 9, 1984. The 

trial began on July 16, 1984. During trial, an expert on 

blood and body fluids testified that the blood on the jute 
carpet backing, the sleeping bag, the Kleenex and cardboard 

boxes from the wash bay, the sheet from defendant's pickup, 

the wash bay floor and a condom found at the wash bay was the 

same type as that of the victim. He also stated that no more 

than 84 to 120 people in the Billings area, with a population 

of about 120,000, would have this type of blood. This expert 

further testified that the semen from the women's panties 

found in defendant's bedroom, and from the used condoms found 

in the wash bay, including the one with blood on it, matched 

that of defendant. 

The director of the State Crime Lab testified about the 

comparison of human hair made in this case. He explained 

that defendant's hair had a unique pigmentation not present 

in the hair of other people connected with the case and an 

uncommon medulla. He identified head and pubic hair found in 

the wash bay area, on the bloody sheet in the yellow pickup, 

by the dumpster where the victim's body was found, in a mat 

of blood on the victim's hand, and under one of her 

fingernails, as matching the characteristics of defendant's 

hair. According to this expert, hair characteristic of the 

victim's hair was found in the wash bay, on the sleeping bag, 

on the sheet in the defendant's pickup and on a condom from 

the defendant's house. This same expert testified that the 

orange carpet fiber in the victim's hair was very similar to 

that found at the Pease business. 

The defendant's hair expert concluded many of these 

hairs were not matched. However, he admitted most of his 

slides showing the hair were made at a magnification too low 

to show variations in pigment. Others were so high that the 
full hair was not in focus, had too much light which lessened 

the detail shown, or were out of focus. 

The defendant's ex-wife identified the sleeping bag as 

the "trundle bundle" which was a wedding gift to herself and 

defendant. She testified that he kept it when they were 

divorced and that they had used it frequently during their 

marriage. On January 6, 1984, when the defendant was asked 

to identify the trundle bundle in a photograph, he claimed 

not to recognize it. 

The defense relied on supposed sightings of the victim 

after November 24, 1983, and defendant's alibi for the 

suspected time of the killing. These alleged sightings were 

brief contacts with individuals who were strangers to the 

victim and most were from a distance. Her roommates, who saw 

her on a daily basis before her death, did not see her after 

the early morning on November 24, 1983. 

Although the defense also relied on alibi, the 

defendant's whereabouts were unaccounted for during the late 

night and early morning hours of November 23 and 24, 1983. 

Defendant's bowling teammate testified that defendant bowled 

with the team on November 23, 1983, that bowling finished 

about midnight, and that he, the teammate, went home about 

2:00 a.m. Defendant's father testified that defendant went 

out the night of the 23rd and he did not see defendant again 

until after 9:00 a.m. on Thanksgiving morning, although he 

saw defendant's truck at home about 6:00 a.m. that day. 

Friends and family did not begin to arrive for Thanksgiving 

dinner until after 11:OO a.m., on the 24th. Defendant was 

home at that time. 
The jury found defendant guilty of deliberate homicide 

on August 1, 1984. After the verdict, defendant requested a 

new trial. The District Court denied this motion and 

sentenced defendant to 100 years on September 21, 1984. He 

was designated a dangerous offender and received an 

additional 10 years for use of the weapon involved in the 

homicide. 

Defendant appeals the judgment entered against him 

raising five issues: 

1) Whether admitting the prior inconsistent statement 

of one person through the testimony of another was error. 

2) Whether probable cause existed for a search warrant 

issued on January 24, 1984, for the residence and vehicles of 

Pease and his family. 

3) Whether certain items of evidence seized during 

searches of the Pease business and testimony about 

defendant's alleged involvement with prostitutes was 

inadmissible character evidence. 

4) Whether the District Court erred when, during 

trial, it replaced a juror after finding out the juror was 

about to be arrested for sexual intercourse without consent. 

5) Whether the prosecutor's closing argument denied 

Pease his rights to a fair trial and due process. 

In the first issue the defendant contends the District 

Court erred in admitting the testimony of Lou Sullivan 

concerning extrajudicial statements made by Brian Emineth. 

Emineth testified first stating that he was at Lou Sullivan's 

house when he heard a television report on this homicide 

investigation. He denied saying anything about being with 

Pease and picking up, raping and murdering the victim. He 
admitted knowing Pease for about 17 years and having been at 

the business a few times. He first said he had never been in 

the wash bay area but later said he had been there once. On 

cross-examination he admitted that he thought he would be 

arrested for the deliberate homicide. 

Lou Sullivan testified after Emineth. She said Emineth 

told her that the police were looking for him and Pease in 

connection with the homicide, that the two of them had picked 

up the victim and taken her to the Pease business, that Pease 

stabbed the victim, and that Emineth had tried to stop him 

but could not and fled the scene. She admitted that she was 

drinking when Emineth made the statements and that Emineth 

was drunk at the time. She also said he told her the body 

was at Alkali Creek and the news reports were false. 

Hair characteristic of Emineth's was found at the 

murder scene, on victim's body, and in Pease's pickup. He 

stated that the State Lab was lying about the hair at the 

scene and that the hair had been "planted". He denied being 

at the murder scene or in Pease's pickup. 

The defendant offers two rationales supporting his 

assertion that to admit Sullivan's testimony was error. The 

first is that the statements were not admissible under any of 

the Montana Rules of Evidence and the second is that their 

admission denied him his right to confrontation of witnesses. 

Under the first rationale, the defendant argues that 

the State knew Emineth would deny making the statements when 

it called him to testify and deliberately "set up" the 

impeachment. The State justifies admitting Sullivan's 

testimony as impeachment of Emineth through showing his prior 

inconsistent statements under the Montana Rules of Evidence. 
According to these rules, a party can impeach his own witness 

by showing prior inconsistent statements without regard to 

the former requirement of surprise. State v. Fitzpatrick 

(1980), 186 Mont. 187, 197, 606 P.2d 1343, 1349, cert. den., 

449 U.S. 891, citing Montana's Code Commission Comment to 

Rule 607, M.R.Evid. Rule 613, M.R.Evid. requires that the 

witness to be impeached be given an opportunity to explain or 

deny the statements prior to the admission of extrinsic 

evidence showing the inconsistent statements. Emineth had 

this opportunity and denied making the statements. Contrary 

to the defendant's suggestion, the State most certainly would 

have preferred Emineth admit to having seen the defendant 

murder the victim rather than deny making the statements. 

Sullivan's testimony was admitted next, with Emineth's 

denial laying the foundation for the introduction of his 

prior inconsistent statements. The defendant argues that her 

testimony was so inherently unreliable that it should have 

been inadmissible as hearsay. Rule 801(d) (I), M.R.Evid., 

provides in pertinent part: 

A statement is not hearsay if: (1) The 

declarant testifies at the trial or 

hearing and is subject to 

cross-examination concerning the 

statement, and the statement is (A) 

inconsistent with his testimony . . . 

The federal rule from which this was derived requires that 

the prior inconsistent statement be one "given under oath 

subject to the penalty of perjury at a trial or hearing, or 

other proceeding, or in a deposition. " Rule 801 (d) , Federal 

Rules of Evidence. The Montana rule deleted this oath 

requirement as harmful and unnecessary. Emineth was present 

at trial and subject to direct and cross-examination. The 

jury could observe his demeanor as he testified. They could 
discern the truth or falsity of the prior statement as well 

as the truth or falsity of the inconsistent testimony. See 

Advisory Committee Comments to proposed federal rules, 56 

F.R.D. 183, 296. Applying Rule 801(d)(l)(A), M.R.Evid., 

Sullivan's testimony was properly admitted as the reliability 

of both her and the declarant could be evaluated by the jury. 

This Court considered and rejected a defendant' s 

argument made under similar circumstances in Fitzpatrick, 186 

Mont. 187, 606 P.2d 1343. In that case, the declarant 

testified and denied making statements about the defendant's 

actions while committing the crime. Another witness then 

testified about the declarant's inconsistent out-of-court 

statement. This Court held the evidence was admissible, 

relying on Rules 801(d) (1) (A) and 801(d) (2) (E), M.R.Evid. 

The argument that the State intentionally called the 

declarant knowing it would impeach him without having been 

surprised was considered irrelevant under Montana's 

evidentiary rules. Here, as in Fitzpatrick, the State's 

intention was irrelevant and the prior inconsistent 

statements were properly admissible under the rules of 

evidence and could be considered as substantive evidence by 

the jury. 

The defendant's second rationale to support his 

argument in this issue is that admitting this testimony 

denied him his right to confront witnesses as guaranteed by 

the Sixth Amendment to the U.S. Constitution. This Court 

considered and rejected this argument in Fitzpatrick, 186 

Mont. 187, 606 P.2d 1343, relying on two United States 

Supreme Court decisions, California v. Green (1970), 399 U.S. 
149, 90 S.Ct. 1930, 26 L.Ed.2d 489, and Nelson v. O'Neill 

(1971), 402 U.S. 622, 92 S.Ct. 1723, 29 L.Ed.2d 222. 

The purpose of the confrontation clause was to prevent 

depositions or expert affidavits from being used against a 

defendant instead of placing the witness before the jury and 

subjecting him to direct and cross-examination. Green, 399 

U.S. at 157, 90 S.Ct. at 1934-35, 26 L.Ed.2d at 496-97. In 

Green, the Supreme Court held that the confrontation clause 

is not violated by admitting a declarant's out-of-court 

statements if the declarant is testifying as a witness and 

subject to full and effective cross-examination. The 

declarant in Green professed uncertainty or loss of memory at 

trial about certain facts, so previous statements at a 

preliminary hearing and to a police officer were admitted 

into evidence. 

The declarant in O'Neill, 402 U.S. 622, 92 S.Ct. 1723, 

29 L.Ed. 2d 222, denied making the out-of-court statement 

implicating the defendant and then testified in defendant ' s 

favor. The Supreme Court held that the confrontation clause 

is not violated when the declarant denies making an 

unfavorable out-of-court statement and then testifies 

favorably for the defendant. 

Here, as in Fitzpatrick, 186 Mont. 187, 606 P.2d 1343, 

the declarant was called as a witness for the State and 

denied making an out-of-court statement unfavorable to the 

defendant. The declarant was subject to cross-examination. 

The testimony here was favorable to defendant in that he 

would have been in a worse position had Emineth affirmed 

making the prior statements. Both Emineth and Sullivan were 

examined and cross-examined. The defendant was able to show 
both were intoxicated at the time of the out-of-court 

statements. The jury heard that Sullivan had a possible 

motive of retaliation resulting from another incident. The 

jury observed the demeanor of both of them. Defendant's 

right to confront witnesses was not violated by the admission 

of Sullivan's testimony because the declarant testified as a 

witness and was subject to a full and effective 

cross-examination. We hold that the District Court properly 

admitted the questioned testimony. 

In the second issue the defendant contends that the 

applications for the search warrants of the Pease residence 

and vehicles do not state facts sufficient to show probable 

cause. He argues that the applications do not establish a 

nexus between the items sought and the places to be searched 

and that the information in the applications was stale. In 

denying the defendant's motion to suppress, the District 

Court concluded that the applications set forth sufficient 

detail to show a homicide had been committed and a reasonable 

probability that evidence relating to the offense would be at 

the places described. On the question of staleness, the 

District Court concluded that due to the nature of the items 

sought, the passage of time between the discovery of the body 

and the applications did not cause the information to become 

stale. 

This Court applies the standard for reviewing a 

determination of probable cause set out in Illinois v. Gates 

(1983), 462 U.S. 213, 238-39, 103 S.Ct 2317, 2332, 76 

L.Ed.2d. 527, 548: 

[Wle affirm the totality of the 

circumstances analysis that has 

traditionally informed probable cause 

determinations. [Citations omitted. ] 
The task of the issuing magistrate is 

simply to make a practical, common-sense 

decision whether, given all the 

circumstances set forth in the affidavit 

before him, including the "veracity" and 

"basis of knowledge" of persons supplying 

hearsay information, there is a fair 

probability that contraband or evidence 

of a crime will be found in a particular 

place. And the duty of the reviewing 

court is simply to ensure that the 

magistrate has a "substantial basis for . . . concluding" that probable cause 

existed. 

See, State v. O'Neill (Mont. 1984), 679 P.2d 760, 41 St.Rep. 

420, and State v. Pierre (Mont. 1984), 678 P.2d 650, 41 

St.Rep. 445. A magistrate's determination should be given 

great deference by a reviewing court, drawing every 

reasonable inference possible to support the determination. 

The facts and circumstances contained within the four 

corners of the affidavit supporting the application for a 

search warrant should justify a reasonable belief that an 

offense has been committed and that the items sought are at 

the place designated in the warrant. State v. Isom (1982), 

196 Mont. 330, 641 P.2d 417. A search will be upheld where 

"the nexus between the items to be seized and the place to be 

searched rested not on direct observation . . . but on the 

type of crime, the nature of the missing items, the extent of 

the suspect's opportunity for concealment, and normal 

inferences as to where a criminal would be likely to hide 

stolen property." United States v. Spearman (9th Cir. 1976), 

532 F.2d 132, quoted in Pierre, 678 P.2d at 653, 41 St.Rep. 

at 449. 

The victim's death was an obvious homicide so there was 

no doubt an offense had been committed. When the application 

for a warrant was made, the investigation already had 
revealed evidence connecting the homicide to the Pease 

business. The body was found near the business. The 

sleeping bag and jute carpet backing were found nearby. The 

carpet in the victim's hair and the backing found by the 

sleeping bag were similar to carpet and backing found at the 

business. Hair and blood matching that of the victim were 

found in the locked wash bay area of the business. The 

plaster cast of the victim's foot matched the cleaned water 

pipes in the wash bay. No one had access to the premises 

except the defendant, his parents and one uncle during the 

time the building had been closed and the homicide had 

occurred. Other evidence in the application also supported 

the conclusion that the homicide occurred in the wash bay. 

The items sought here included the murder weapon (a 

knife), the victim's missing clothing, jewelry and shoes, a 

cancelled check payable to the victim or the Empire Bar, 

condoms like those at the murder scene, bloody rags or 

tissues, fingerprints, hair and fiber samples, bricks 

matching those found with the sleeping bag, and tires 

matching the prints near the body. This was the kind of 

evidence likely to exist but as yet undiscovered. Some 

items, i.e., the knife, the clothing, jewelry and shoes of 

the victim could have been possible mementos and were the 

kind likely to be found where the persons involved with the 

crime lived. See, e.g., United States v. Bowers (9th Cir. 

1976), 534 F.2d 186, 190-92, cert. den. 429 U.S. 942. Other 

items, such as the hair, blood samples and fingerprints, 

would be difficult to collect or dispose of completely. 

Finally, a number of items, by themselves, were innocuous and 

likely to be present in a vehicle or residence for a more 
lengthy period of time after the crime. The information 

offered to support the application for a search warrant 

established a nexus between the locations to be searched and 

the items sought. 

The defendant also contends that, in addition to it 

being unlikely the items were at the places to be searched, 

it was not probable that the items would still be present in 

the residence or vehicles 53 days after the discovery of the 

body. As the District Court noted, "staleness depends 

largely on the nature of the property sought" and the passage 

of this amount of time, alone, may not negate probable cause. 

The likelihood that the evidence sought 

is still in place is a function not 

simply of watch and calendar but of 

variables that do not punch the clock: 

the character of the crime (chance 

encounter in the night or regenerating 

conspiracy?), of the thing to be seized 

(perishable and easily transferable or of 

enduring utility to its holder?), of the 

place to be searched (mere criminal forum 

of convenience or secure operational 

base?), etc. The observation of a 

half-smoked marijuana cigarette in an 

ashtray at a cocktail party may well be 

stale the day after the cleaning lady has 

been in; the observation of the burial of 

a corpse in a cellar may well not be 

stale three decades later. The hare and 

the tortoise do not disappear at the same 

rate of speed. 

Andresen v. State (Md.App. 1975), 331 A.2d 78, aff'd sub. 

nom. Andresen v. Maryland (1976), 427 U.S. 463, cited in 

Pierre, 678 P.2d at 654, 41 St.Rep. at 449. 

The items sought here were more likely to remain in a 

residence or vehicle than consumable or perishable goods. 

Some would have continuing utility to the owner. The places 

searched were those a person normally would store items. 

Many of the objects were not of the nature that they would be 

destroyed by the defendant. Although many items were the 
kind of evidence that could be moved easily, there was no 

reason to believe that any would be moved to different 

locations. Thus, information supporting the applications was 

not stale. Drawing all reasonable inferences to support the 

magistrate's determination, we hold that there was a 

substantial basis for concluding probable cause existed at 

the time the search warrants were issued. 

In the third issue the defendant claims that the 

District Court improperly admitted into evidence pornographic 

books, condoms, the woman' s panties found in defendant ' s 

room, and testimony about his prior contacts with 

prostitutes. He contends that the evidence was irrelevant, 

the danger of unfair prejudice substantially outweighed any 

probative value, and that the testimony was inadmissible 

character evidence. We first note that photographs of the 

covers of the pornographic magazines and a pin-up found at 

the murder scene and in defendant's room, photographs of 

condoms found at the murder scene and in defendant's room, 

and a photograph showing stains on the woman's panties found 

in defendant's room were admitted into evidence, not the 

objects themselves. We address the admissibility of these 

photographs separately from the admissibility of testimony 

about defendant's contacts with prostitutes. 

The State contends that the photographs were relevant 

to show the identity and possible motive of the perpetrator 

of the crime. Rule 401, M.R.Evid., defines relevant evidence 

as: 

. . . evidence having any tendency to 

make the existence of any fact that is of 

consequence to the determination of the 

action more probable or less probable 

than it would be without the evidence. 

Relevant evidence may include evidence 
bearing upon the credibility of a witness 

or hearsay declarant. 

This standard "is meant to allow wide admissibility of 

circumstantial evidence limited only by Rule 403 or other 

special relevancy rules in Art. IV [of M.R.Evid.1 ." 

Fitzpatrick, 186 Mont. at 207, 606 P.2d at 1354, citing 

Montana's Code Commission Comment. 

The photographs of the condoms, the pornographic 

magazines and pin-up, and the woman's panties tend to connect 

the defendant with the scene of the murder and suggest a 

possible violent sexual motive. A pornographic pin-up 

suggesting violence and condoms were found at the scene. The 

search of defendant's room yielded pornographic magazines 

suggesting violence toward women, condoms like those in the 

wash bay, and the semen stained woman's panties. The 

victim's clothing was never found. Although the panties were 

never identified as belonging to the victim, a detective 

testified that murderers often take and keep items belonging 

to the victim. On one of the used condoms in defendant's 

room, pubic hair matching that of the victim was found. The 

semen stains and hair on the panties were defendant's type. 

The hair and fiber expert testified hair adheres to fabric 

and can be transferred. The jury could have inferred from 

this evidence that the hair found on the condom came from the 

panties. These items all tended to link the defendant with 

the scene of the crime and the victim, and suggested a 

possible motive. 

Defendant argues that even if relevant, the prejudicial 

effect of the items exceeded any probative value. 

Although relevant, evidence may be 

excluded if its probative value is 

substantially outweighed by the danger of 
unfair prejudice, confusion of the 

issues, or misleading the jury, or by 

considerations of undue delay, waste of 

time, or needless presentation of 

cumulative evidence. 

Rule 403, M.R.Evid. A district court's weighing of potential 

prejudice against probative value will be upheld absent an 

abuse of discretion. State v. Austad (1982) , 197 Mont. 70, 

83, 641 P.2d 1373, 1380. The District Court below rejected 

defendant's argument that the evidence was unfairly 

prejudicial because it reflected on his character. This 

Court rejected a similar argument in State v. Armstrong 

(1976), 170 Mont. 256, 552 P.2d 616, where evidence of 

defendant's destitute financial condition, outbursts of 

anger, and high regard for his weapons formed circumstantial 

evidence from which to infer a motive for the homicide. 

Here, photographs of the objects formed circumstantial 

evidence from which to infer the defendant was the 

perpetrator and to infer a motive from evidence of his 

interest in violent sex. In a violent sex-related homicide 

most evidence linking the defendant to the crime is likely to 

be somewhat prejudicial. Here, the State used photographs of 

the objects having probative value rather than the objects 

themselves, the latter of which may have had greater 

potential for prejudice. We find that the District Court did 

not abuse its discretion by allowing these photographs into 

evidence. 

A detective testified that the defendant gave a 

statement in which he denied ever dealing with prostitutes. 

A later witness testified that the defendant had paid for the 

services of two prostitutes for himself and the defendant. 

Another witness testified that the defendant told her he 
would "get a hooker" after she refused to go home with him. 

The defendant argues, as part of this third issue, that this 

testimony was inadmissible under Rule 404 (b) , M. R.Evid., and 

that the danger of unfair prejudice outweighed any probative 

value of the testimony. 

Rule 404 (b) , M.R.Evid., states: 

Evidence of other crimes, wrongs, or acts 

is not admissible to prove the character 

of a person in order to show that he 

acted in conformity therewith. It may, 

however, be admissible for other 

purposes, such as proof of motive, 

opportunity, intent, preparation, plan, 

knowledge, identity, or absence of 

mistake or accident. (Emphasis added.) 

In State v. Shaw (1982), 199 Mont. 248, 252, 648 P.2d 287, 

289-90, this Court held that "other crimes" evidence under 

this Rule may be admitted to show consciousness of guilt. 

The testimony was offered to show that the defendant gave a 

false statement about his contacts with prostitutes during 

questioning about the homicide of a prostitute rather than to 

prove his character. A false explanation of incriminating 

information may be considered evidence of consciousness of 

guilt. United States v. Green (9th Cir. 1979), 597 F.2d 

1227, cert. den., 444 U.S. 853. As noted above, absent an 

abuse of discretion, this Court will not overturn a district 

court's weighing of the danger of prejudice against probative 

value. Austad, 197 Mont. at 83, 641 P.2d at 1380. The 

testimony made the issue of the defendant's identity more 

likely by allowing an inference of his consiousness of guilt. 

We find no abuse of discretion in admitting this evidence. 

The fourth issue concerns whether the District Court 

erred when it replaced a juror during trial, after finding 

out the juror was to be arrested for the felony offense of 
sexual intercourse without consent. The State brought the 

matter to the District Court's attention at an in - camera 

hearing after it became aware of the pending investigation. 

The officer who was investigating the juror testified that 

the juror confessed to the crime, knew he would be arrested 

and had expressed concern that the timing of the arrest would 

affect his duties as a juror. The State moved to disqualify 

the juror for the reasons that he may be overly sympathetic 

to the defendant or he may vote for a conviction to gain 

leniency from the State. The defendant's counsel agreed that 

both possibilities were relevant concerns but argued that the 

alternate was not paying attention. He did not object to the 

juror's removal. The District Court then disqualified the 

juror and questioned him regarding whether the other jurors 

were aware of his situation. He testified that they were 

not. The District Court denied the defendant's subsequent 

motion for mistrial based on contamination of the jury panel 

and on the alternate's lack of attention. The defendant 

raised the juror's disqualification as an issue in his motion 

for a new trial, arguing that the District Court did not have 

the authority to remove the juror after the presentation of 

evidence began and that there was an insufficient showing of 

possible bias on the part of the juror. When denying the 

motion for a new trial, the District Court stated the 

defendant no longer claimed prejudice from the alternate's 

participation and the defendant had agreed there was a 

potential for prejudice if the juror remained on the panel. 

The District Court held the possibility of the juror's being 

charged was sufficient to prevent his impartiality in 

deliberations. 
Contrary to the defendant's contention, the removal of 

this juror was not premised on § 46-16-306, MCA. The 

District Court considered 546-16-306 and -304(2), MCA, on 

challenges for cause as an aid in determining whether the 

possibility of the juror being charged was sufficient to 

replace him. The juror was replaced pursuant to 

5 46-16-307(3), MCA, which states: 

Alternate jurors, in the order in which 

they are called, shall replace jurors 

who, prior to the time the jury arrives 

at its verdict, become unable or 

disqualified to perform their duties 

The plain meaning of the statute is that substitution of an 

alternate for an original juror who becomes disqualified or 

unable to perform his duties is permitted at any time prior 

to the reaching of a verdict. Clearly, the defendant's 

argument that the District Court's action was not timely must 

fail. 

Rule 24(c) of the Federal Rules of Criminal Procedure 

contains language similar to 5 46-16-307(3), MCA. The 

federal circuits consistently hold that the trial court has 

the discretion to remove a juror and seat an alternate 

whenever the facts show the juror's ability to perform his 

duties is impaired. The circuits also consistently hold that 

the reviewing court will not disturb the ruling unless the 

defendant shows bias or prejudice. U.S. v. Ellenbogen (2nd 

Cir. 1966), 365 F.2d 982, 989, cert. den., 386 U.S. 923, 87 

S.Ct. 982, 17 L.Ed.2d 795. See also, U.S. v. Zambito (4th 

Cir. 1963), 315 F.2d 266, 269, cert. den., 373 U.S. 924, 83 

S.Ct. 1524, 10 L.Ed.2d 423; U.S. v. Smith (5th Cir. 1977), 

550 F.2d 277, cert. den., sub. nom.; Wallace v. U.S. (19771, 

434 U.S. 841, 98 S.Ct. 138, 54 L.Ed.2d 105; U.S. v. Barrett 
(9th Cir. 1983), 703 F.2d 1076, 1083, n. 12. "' [P]rejudice1 

would include discharge of a juror for want of any factual 

support, or for a legally irrelevant reason. There must be 

some 'sound' basis upon which the trial judge exercised his 

discretion." U.S. v. Rodriguez (5th Cir. 1978), 573 F.2d 

330, 332. 

The District Court had a legal reason and heard facts 

from which it could determine the juror's ability to perform 

his duties would be impaired. Section 46-16-304 (2) (j) , MCA, 

provides that a challenge for cause may be taken if the juror 

has a "state of mind in reference . . . to either of the 

parties which would prevent him from acting with entire 

impartiality and without prejudice to the substantial rights 

of either party." An officer who had been or would be 

present during trial testified that the juror knew he was to 

be arrested for a sex related offense by that same officer. 

The defendant's counsel agreed that concerns about the juror 

voting either to curry favor with the State or in sympathy 

for the defendant were legitimate concerns. The District 

Court did not abuse its discretion. 

The better procedure would have been to question the 

juror prior to replacing him with an alternate. However, in 

this case such a hearing would have had limited utility. The 

juror had a right to remain silent about the pending charges 

and any insistence on his part that he could remain impartial 

may have had little weight. The District Court already had 

sufficient information to remove the juror. 

The defendant apparently held the view that the jury 

panel would be contaminated if the juror remained. The 

District Court questioned the juror and determined that he 
had not discussed his situation with the others, including 

the alternate. After this, the defendant still objected only 

on the grounds of contamination of the jury panel. He did 

not object to the removal of the juror. If the District 

Court had let the juror remain, the defendant would be 

arguing that was error. We hold that the District Judge 

acted within her discretion when replacing the juror with the 

alternate. The defendant has failed to demonstrate any 

prejudice from the action and any procedural error was 

harmless. 

Nor did the defendant demonstrate prejudice from the 

calling of the alternate juror. The alternate was subjected 

to voir dire and accepted by the defendant. The defendant 

alleged improper conduct by the alternate only in his motions 

for a mistrial and a new trial. The record shows no 

objection during trial and no request to admonish the 

alternate for a failure to pay attention. The District Court 

did not note any inappropriate behavior by the alternate. 

In the final issue, the defendant argues that the 

State's closing argument denied him due process and a fair 

trial. Montana has long held that objections to closing 

arguments first made on appeal are too late. Hawkins v. 

Crist (1978), 178 Mont. 206, 583 P.2d 396, cert. den., 439 

U.S. 957, 99 S.Ct. 359, 58 L.Ed.2d 350. The defendant admits 

he chose not to object as a matter of trial strategy. 

Contrary to his contentions, State v. Harris (Mont. 1984), 

682 P.2d 159, 41 St.Rep. 866, does not hold that a motion for 

a new trial preserves an objection to a closing argument. 

Harris relies on the plain error doctrine in S 46-20-702, 
MCA. This case does not meet the conditions set forth in 

that statute. 

Further, the prosecutor's statements during closing 

argument were based on the evidence admitted at trial. There 

was no comment on the defendant's failure to testify or on 

facts not in evidence. The District Court, when presented 

with the motion for new trial, correctly ruled the failure to 

object barred consideration of this issue because substantial 

rights of defendant were not affected and correctly noted the 

comments did not exceed the bounds of permissible argument. 

The jury verdict, subsequent judgment and the order 

denying defendant's motion for a new trial affirmed. 

? 

We concur: . -H 

T& 

Chief Justice