No. 88-274
INTHE SUPREME COURTOF THE STATE OF MONTANA
1989

STATE OF MONTANA, Plaintiffand Respondent,-VSCODY MIX, Defendantand Appellant.

APPEAL FROM: District Court of the SixteenthJudicialgistrict, In and for the County of Rosebud, i The HonorableAlfred R. Coate, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
JamesG. Hunt, Helena,Montana
For Respondent:
Hon. Marc Racicot,Attorney General, Helena,Montana Peter Funk,Asst. Atty. General,Helena Marvin Quinlan,CountyAttorney, Forsyth,Montana GaryA. Ryder,Deputy CountyAttorney, Forsyth,Montana

Submitted onBriefs: July 7, 1989 Decided: October 16, 1989
Filed:Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the Sixteenth JudicialDistrict, Rosebud County, Montana, of a conviction of deliberate homicide, a felony, following a jury trial. The appellant appealshis sentence of 100years for the deliberate homicide and an additional ten-year sentence for the use of a weapon in the commissionof the crime. We affirm. On September 2, 1987,thebody of Sarah Sloanwas found
on the banks of the Yellowstone River near the town of Forsyth, Montana. Investigating officers found that the victim's body had suffered numerous chest wounds. In addition they found considerable evidence around the body including a fresh tire track, a fresh shoe print, a bloody fingerprint,and dragmarkswhich indicated that the victim's body had beendragged fromavehicle to the spoton theriver bank. Because the romantic relationship between the victim and the appellant was well known in the small town of Forsyth, officers went to the appellant's residence. There they observed the tires on the appellant's car were similar to the tire tracks found by the victim's body. The officers also observed what appeared to be blood on the ground near the car. As a result of this investigation, the appellant

was questioned early that afternoon. He was later released by local officials. On September 

### 4, 1987,

### a search warrant
was obtained for the appellant's residence and car. As a resultof this search,and based upon the observationsof the investigatingofficers,the appellant was arrested later that day and charged with deliberate homicide. Following his arrest, the appellant maintained his innocence, claiming he and the victim had been drinking at several bars, b.uttheyhad parted company in the early hours of September 2, 1987, followingaminor argument. On September 21, 1987, counsel for the appellant filed

aNotice of Intentto rely upon the defense of mental disease or defect. Thereafter the appellant was committed for psychiatric examination. After undergoing several months of pretrial psychiatric evaluation, the appellant returned for trial. He testified at trial that some time in January of 1988 he began to regain his memory. At that time, he admitted he caused the death of Sarah Sloan but claimed he acted in self-defense. The evidence indicates appellant and Sarah had visited several bars during the evening of September 1, 1987,before they returned to his address about 1 o'clock the following morning. Appellant testified that inpreparing togo to bed, he was in the process of taking off his shoes when Sarah attacked him with a plastic fan base. He further testified that he went out of his bedroom and down the hall as Sarah continued to hit him about the head and neck. Appellant testified he proceeded to the kitchen where he picked up a knife from the kitchen sink and stabbedher in the chest. He further testified that after the initial stabbing, Sarah continued to attack him in the samemanner, and he continued to stab her until shecollapsed. At trial, Dr. K.H. Mueller, the pathologist who performed the autopsy, testified that the victim's death was caused by five stab wounds to her chest area. He testified

one of the wounds was inflicted with enough force to pierce thevictim's sternumand another was deep enough topenetrate her spine. In addition, Sarah had multiple blunt force facial injuries and a defensive knife wound on one hand. Appellant testified at trial that after the stabbing, he dragged Sarah out to his car, drove to an area 

### by theYellowstone River, dumped Sarah's body and returned to his home. He testified he then cleaned the kitchen floor,rinsed off the knifeused tokill Sarah and went tobed. Various law enforcement officials who testified stated that some twelve hours after the alleged confrontation, the appellant showed no signs ofhaving been in a life-and-death struggle and thathemade nomention of Sarah's attack on the night of the crime. In addition, the appellant's home showed
no signs of a violent struggle. An investigating officer testified that the plastic fan base allegedly used by Sarah in the claimed attack on the appellant did not contain her fingerprints. Appellant testified at trial that the fanbase
was essentiallyundamaged. During the trial,appellant attempted to establish that Sarah was an aggressive, domineering and impulsive woman. The State submitted rebuttal testimony to establish that the appellant had beaten Sarah in the past and that she was afraid ofhispropensity forviolence. Five issuesarepresented on appeal: 1. Whether the trial court committed reversible error when it did not grant appellant's motion for mistrial based
on theprosecution's opening statement. 2. Whether the trial court committed reversible error when it allowed three prosecution rebuttal witnesses to testify to an alleged prior act of appellant. 3. Whether the trial court committed reversible error when it denied the admission of certain medical records of the victim. 4. Whether the trial court committed reversible error when itdenied the admissionof a statement allegedly made by thevictim. 5. Whether the trial court committed reversible error when it allowed the prosecution's forensic scientist totestify as an expert about the velocity and direction of blood splatters found in appellant's kitchen, and when it allowed an investigating officer to testify that the location of thevictim's death evidenced a struggle. As to the first issue,the appellantalleges that three improper comments were made by the deputy county attorney, commentswhichwere highly prejudicial, made inbad faithand each statement was so prejudicial to the appellant that a mistrial was warranted. The statements referred to,made by the deputy county attorney in his opening statement, are as follows: On September 2nd, 1987,thebody of Sarah Sloan was founddiscarded along the banks of the Yellowstone River, west of Forsyth.
That very day, the Defendant was arrested for murder and twice denied any involvement. On January 15th, 1988, for the firsttime, he filed anotice of self defense. Thiswas approximately 135days after the body of Sarah Sloanwas found.
To be very honest with you, I was surprised when [appellant's attorney] told the jury, during selection 

# .. . At this point appellant's attorney objected, to which the District Judge sustained the objection and advised that "Counselwill be restricted to their opening statementas to facts that they intend to prove and not what Counsel was surprisedat." The second comment cited by appellant as thebasis for reversal, was also stated during the prosecution's opening statement: Theman sitting at the Defendant's table, at this point, is presumed to be innocent. He has the right to a jury trial, he has a right to remain silent,he has the right to a court appointed counsel.
The third statement made by the counsel for the prosecution during his opening statement, to which appellant's attorney objected and which is the finalbasis of claimed error, is the following: After reviewing this evidence,you will have decisions to make, whether this Defendant is mentally ill, you'll be instructed on the law in that area. Whether the Defendant was acting

# ... It is appellant's contention that the first statement regarding the delayed notice of a theory of self-defense is both an improper comment on the appellant's silence and is prohibited by Griffin v. California (1965),380 U.S. 609, 85 S.Ct. 1229, 14L.Ed.2d 106;and Chapmanv. California (19671, 386 U.S. 18, 87 S.Ct. 824, 17L.Ed.2d 705. Itis appellant's position that any reference made to a delay of notice of filing a theory of defense; the fact that he had court appointed counsel; the defense of mental defect or disease; and finally the cumulative effect of improper statements made during trial, all necessitate a reversal of his conviction. In State v. Johnson (Mont. 1988), 760 P.2d 760, 45 St.Rep. 1653, this Court spoke to the problem of improper remarks made 

### by counsel during trial. The Johnson opinion reviewed Griffin, supra, and a number of cases which previously discussed this problem in Montana including State

v. Gladue (1984), 208 Mont. 174, 677 P.2d 1028; State v. Wilkins (Mont. 1987) 746 P.2d 588, 44 St.Rep. 1794;and State

v. Gonyea (Mont. 1987), 730 P.2d 424, 44 St.Rep. 39. In those cases this Court has warned the prosecution and discussed the risk of reversal in the event the prosecution makes improper comments either in opening statements or in witness examinations. 

### The appellant notes, and we agree,that only overwhelming direct evidence against a defendant prevents these kinds of remarks from becoming reversible
error.The comments by the prosecution were improper and unnecessary to the trial of this case. While the record does not suggest any intentional comment was made regarding the change of defense or the silence of the defendant, we conclude the remarks were objectionable. In view of the compelling evidence, and with no significant contradictory evidence, we find there was no need for any comments of the nature referred to above. We again admonish counsel not to comment, even indirectly, on the silence of the accused. Having found these remarks objectionable, we must consider the Chapman rule to determine if the error was harmless beyond a reasonable doubt. The testimony evidence submitted by the State, including the extensive and unrebutted testimony of all of the witnesses, including the testimony of the appellant, clearly established the appellant's guilt. We will not address all of the evidence of this crime. The evidence clearly indicates an unprovoked attack on Sarah,and that in all probability, any one of the five stab wounds could have caused her death. We emphasize here that the evidence of appellant's guilt is overwhelming. The District Court gave numerous instructions during the
course of the trial concerning the State's burden of proof. The admonition to the jury concerning the remarks made following the motion for mistrial shows the trial court's effort to impressupon the jury the right of the defendant to remain silent. We conclude that the evidence in this case was so overwhelming that the comments canbe classified as harmless
error beyond a reasonable doubt. In so doing we uphold the DistrictCourt's denial of amotion formistrial.The second issue is whether the District Court erred when it allowed rebuttal witnesses to testify to an alleged prior act of appellant. As part of his defense, the appellant testified that his general character is one of a peace lovingman who found it necessary to kill Sarah Sloan because she had viciously attackedhimwithoutprovocation. As a result of the extreme force used by Sarah, the appellant claimed it was necessary for him, in self-defense, to pick up a knife and stab her five times to protect his own life. Anticipating this defense, the State filed a Just notice in advance of the trial, (Statev. Just (1979), 184 Mont. 262, 602 P.2d 9571, and a precautionary instr.uctionwas given at the time of the introduction of the claimed improper evidence, and another precautionary instruction was read to the jury at the end of the trial. Testimony objected to by appellant was that of the prosecution's rebuttal witness, LoisTaylor: Q Do you recall an incident on May 20, 1987,concerning papers that she [Sarah] had drawnup?
A I don't know what date it was but I know that I had 

## -- she come into the cafe with some papers. There

### 'd been something happen the night before, the police had been called. So she came in and she had her three days off and she came in and she was very upset and she said, "Lois,would you

### -- [Defense counsel]: Objection, hearsay. Q Okay, Lois, ifyou could just explain what she did

## --
A Okay, she handed me some papers and asked if Iwould take

## --

[Defense counsel]: Obiect as hearsay.THE COURT: Anything that she said is hearsay and the objection will be sustained.
Our review of the transcript shows this is the only statement,within the meaning of Rule 801,M.R.Evid., made by any of the witnesses identified by the appellant as having testified to hearsay. The testimony at issue was properly admissible as evidence of "other crimes," and was properly admissible under Rule 404(a)(I),M.R.Evid., and did not include inadmissible hearsay. The objection of the defense was first apparent and contests basically what was admitted as evidence, claiming that the evidence of "other crimes" should have been excluded; second the appellant contests the evidence was hearsay and shouldhavebeen excluded. This Court has long recognized the principle embodied inRule 404(b),M.R.Evid., whichprovides: 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. Itmay, 

### - however,be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake 

### - or accident. (Emphasisadded.)
The admissibility of such evidence is also governed by specific substantiveand procedural rules. Those substantive requirements are: (1)similarity between the crime charged and the previous crime testified to; (2)nearness in time between the crimes charged and the previous crime; (3) tendency to establish one of the purposes detailed in Rule 404(h),Montana Rules of Evidence; and (4)determination that the probative value of the evidence outweighs anypotential prejudice to the defendant. State v. Jensen (1969),153Mont. 233, 239, 455 P.2d 631,634. The procedural requirements are: (1)notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2)an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404(b); and (3)a cautionary jury instruction providing that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. Just, 184Mont at 274, 602 P.2d at 963-64. Had the challenged evidence been introduced in the prosecution's case-in-chief, the above substantive and procedural requirementswould strictlyapply. Here,however, the appellantwas accused of thedeliberate homicideof Sarah Sloan,and the evidence admitted concerned an alleged assault by the appellant on Sarah within sixmonths of thehomicide. Appellanthad already denied any aggressive tendencies onhis part toward the victim. Such evidence on rebuttal bore out his potential intent, knowledge, and absence of mistake or accident. In addition, the evidence was extremely probative

as the appellant's self-defense claim was based on his characterization of the victim as an aggressive, impulsive, domineeringperson. Under these circumstances, such evidence

can hardly be viewed as prejudicial given the nature of the appellant'sdefense. Rule 404(a),M.R.Evid. While the precautionary instruction given at the time the evidence was admitted did not conform exactly to that suggested in Just, we do have both pretrial notice and a final jury instruction which are in strict compliance with all procedural requirements set forth in Just. In addition, this Court has clearly stated that any proceduralirregularities occurring after the prosecution gives notice under Just will not be grounds for reversal unless objected toby adefendant. Here, no such objectionwas made. As previously noted, the appellant's testimony opened the door regarding his peaceful character. The prosecution had every right to delve into evidence which tended to discredit the appellant's version of the critical events and hispeaceful character, even if such evidence involved "other crimes." See,Statev. Austad (1982),197Mont. 70, 641P.2d 1373; Statev. Stroud (1984),210Mont. 58, 683P.2d 459;and State v. Kutnyak (1984), 211 Mont. 155, 685 P.2d 901. In each of those cases,the defendantswere charged with violent offenses and when they testified on their own behalf, they claimed,oneway or another,to be generallypeaceful people. In each of those cases, the prosecution, as a part of its rebuttal, presented evidence to counter such an assessment,
some of which focused on each defendant's involvement in "other crimes" of a violent nature. This Court has consistently held that such evidence was not subject to the traditional Jenson-Just analysis, but rather was admissible under Rule 404 (a)(l),M.R.Evid. We note that however objectionable the testimony may have been because it was conclusory in nature, it,with the exception of the one exchange previously quoted (Lois Taylor's testimony), it is clearly not hearsay and any other objection based on its conclusory nature has been waived. See, S$ 46-20-104(2), and 46-20-701(2), MCA. We fail to understand how these two examples of technical hearsay,which occurred during the examinationofTaylor may have prejudiced the appellant. Section 46-20-701(1),MCA. The third issue raised by the appellant is whether the trial court committed reversible error when it denied the admission

### of the victim's medical records.The trial court refused to admit certain medical records of the victim from the Veterans' Administration Hospital of Miles City,Montana. According to the appellant, those medical records documented the violent and turbulent character of Sarah, and that her unstable personality eventually led her to attack the appellant, an attack so aggressive that itmade him fear forhis life. Over a period of time Sarah had been treated by the Veterans' Administration Hospital for severe asthma. This treatment period began long before the time of her death. Appellant sought to admit testimony of a psychologist regarding Sarah's treatment and the psychologist's opinion regarding the prognosis of her recovery. The trial court concluded that the offered evidence was tooremote in time to be relevant to the appellant's self-defenseclaim. The record indicates that before the trial court made its exclusionary ruling, it conducted an incamera inspection of the medical records at issue and, in chambers,carefully detailed its findings with counsel. In addition, this same issue was raised aspart of the appellant's motion for a new trial, which was filed some four days after the jury found the appellant guilty of deliberate homicide. The trial court, in its written order denying the motion, clearly detailed why it found that both instances of Sarah's treatmentwere too remote in time and that the subjectmatter was irrelevant to the defense alleged. We can find no manifest abuse of discretion in the trial court's ruling. The fourth issue is whether the court committed error in denying the admission of a statement allegedly made by Sarah.Testimony referred to isas follows: A [By appellant]: We went out that evening. I thought best to get her outof the house a little bit, maybe cheer her up if I could. I don't think we had more than two drinks, returned home. It was towards bedtime. Went in the bedroom, bent over to take my shoesoff. Next thing I knew there was a 

## -- something hit me in the back of thehead and I was knocked out. I came to,went in the living room, Sarah was sitting there. I asked her what that was for. "What had I done wrong?" And she couldn't explain it. Q Did she sayanymore about that?

A Well, shementioned tome I waspretty lucky

## -- [BY the prosecution]: Objection, hearsay.
THE COURT: Sustained. The appellant argues that threats by a victim toward an accused should be allowed as an exception to the hearsay rule. He argues that his testimony would have been an attempt to establish that Sarah's statement constituted a "threat." Under a reasonable constructionofRule 801,M.R.Evid.,

a portion of the testimony allowed is clearly subject to the hearsay objection. Itappearsno more than a recitation of a direct statement made by Sarah to which an objection could havebeen lodged. There isno indication in the record as to what the appellant's full answer would have been had he been allowed to continue his testimony. We note, however, that the objection appears for the first time on appeal. We have long held to the principle that an appellate court in reaching its decision will only consider material ascertainable from the record. Statev. Pease (~ont. 1987), 740 P.2d 659, 661, 44 St.Rep. 1203, 1205; and State v. Dess(1984), 207 Mont. 396, 398, 674 P.2d 501, 502. Here, no offer of proof was made which would allow this Court to examine the type of hearsay exception claimed by the appellant. We find no merit in this issue. The fifth issue is whether reversible error was committed when the District Court allowed the prosecution's forensic scientist to testify concerning velocity and direction of blood splatters and when it allowed an investigating officer to testify that the location of the victim's death evidenced a struggle. The appellant argues that the prosecution's forensic scientist, Ken Konzak, was not qualified as an expert on the interpretation of blood splatters. He alleges that because Mr. Konzak testified as a lay witness on this subject, any testimony admitted was not based on the witness' personal knowledge sincehewas notpresent when the blood in question

was splattered. We find this argument rather farfetched. Mr. Konzak isqualified as an expert witness in the field of forensic serology. In qualifying him as an expert, the following testimonywas given at trial: Q Okay. Your occupation is a forensic scientist; is that correct?
A Yeah, I specialize in the area of Forensic Serology. 

### Q Okay. Could you explain to us what forensic serology is?

A Forensic serology is the identification and typing of blood and body fluids. Determination of how those -- stains and materials are deposited and the factors that relate to those fluids, such as time of intercourse and things like that.Q Could you relate to us, have youbeen qualified as an expert in testimony in regard to forensic serology?

A Yes, Ihave. Q Do you recall how many times, possibly?

A 63, 64,somewhere in there.

[Defense counsel]: Your Honor, we'd stipulateto the witness's credentialsas a Forensic Serologist.
THE COURT: Very well. He's qualified.

(Emphasisadded.)
It is to the following testimony that the appellant claims his theory of self-defense was greatly prejudiced by the testimony onblood disposition.

Q [By the prosecution]: Okay. Do you see what appears to be some blood splatters in thatphotograph?

A [By Mr. Konzak]:Yes. The photograph depicts as it was described to me, the area in which several of these blood splatters I've just analyzed were taken from thekitchendoor. Q Okay. Can you

### -- in looking at the photograph of those blood splatters, can you tell anything about direction or forceor anything like that?

A We can tell

## --which I'd have to see obviously closer up when the time comes, that the splatters come from lower on the 

# -- towards the floor up at an angle, a low angle, up to roughly about thirteen to seventeen inches on the side of the door, but come from down going up, as opposed tohaving been dropped from above down on to the lower part of the door.Q So, is it fair to say, thatwould not be consistent with someone standingabove thedoor and bleeding downupon it?
A That's very true. Also, there are some smears overhere which are caused as a small splatter up against it, which have been smeared by rubbing or some other means of smearing, that don't necessarily show thedirection that Iwas mentioningbefore. How this testimony is unfairly prejudicial to the appellant's theory of self-defense is not understandable. Appellant testified that after he stabbed Sarah the final time, she fell to the floor directly in front of the door where the blood splatters were found. The testimony of Mr. Konzak is consistent with the opinion that the blood was deposited on the door as it traveled in an upward direction, deposited there by her body's impact with the floor. The admission of such testimony can hardly be characterized as unduly prejudicial to appellant's theory of self-defense. Appellant also claims that Detective Skillen improperly testified thataviolent strugglehad occurred in appellant's residence the night of Sarah's death because Detective Skillen was not qualified as an expert on such matters. A review of the record shows that the detectivewas, in fact, qualified as an expert on crime scene processing and investigation. Further, that Detective Skillen did not testify as to the existence of a violent struggle. In addition, the appellant specifically stated he had no objection to such a qualification. The only objection came when the detective testified to his findings, as follows: Q [By the prosecution]: In your opinion as an expert in crime scene investigator

[sic],did you seeanything that appeared to be a struggle at that residence?[Defense counsel]: I'm going to object. I'm not sure, I don't believe there's been a foundation laid for thatquestion. Thiswitnessmight be able to testify as to what evidence he evaluated, but to draw that kind of a concl~usion,I don't believe that the foundation can be laid and certainlyhasnotbeen.

THE COURT: The objection will be overruled. And if the answer is in the affirmative, then I want to go into the foundation.
Q Would you answer the question.
A Yes, sir. 

### Q Okay. My q,uestion was did you see any signof a struggle?
A Yes, sir. Q What indicated toyou that therewas a struggle at that residence?

A Thepattern ofblood splattersand the area of the floor that had residue that appeared to have been a heavier deposit at one time on the kitchen floor. 

### Q Was there anything else at the defendant's residence which indicated to you that there was a struggle at that residence?
A No, sir. 

### Q You didn't see any furniture tipped over?
A No, sir. Q Any objects that appeared tohavebeen thrown through the house?

A No, sir.
Q Just theblood stains?A Yes, sir.

We find this testimony to be admissible by an expert who has been previously qualified. The decision of the District Court is affirmed.

We concur: 

### A

Justice ~illiam E. Hunt, Sr., did not participate in this opinion.

I concur in the result.