No. 88-274 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSCODY MIX, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial gistrict, 

In and for the County of Rosebud, i 

The Honorable Alfred R. Coate, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James G. Hunt, Helena, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena 

Marvin Quinlan, County Attorney, Forsyth, Montana 

Gary A. Ryder, Deputy County Attorney, Forsyth, Montana 

Submitted on Briefs: 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 Judicial District, 

Rosebud County, Montana, of a conviction of deliberate 

homicide, a felony, following a jury trial. The appellant 

appeals his sentence of 100 years for the deliberate homicide 

and an additional ten-year sentence for the use of a weapon 

in the commission of the crime. We affirm. 

On September 2, 1987, the body of Sarah Sloan was 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 drag marks which indicated that the victim's 

body had been dragged from a vehicle to the spot on the river 

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 

result of this search, and based upon the observations of the 

investigating officers, 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.ut they 
had parted company in the early hours of September 2, 1987, 

following a minor argument. 

On September 21, 1987, counsel for the appellant filed 

a Notice of Intent to 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 in preparing to go 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 stabbed her in the chest. He 

further testified that after the initial stabbing, Sarah 

continued to attack him in the same manner, and he continued 

to stab her until she collapsed. 

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 

the victim's sternum and another was deep enough to penetrate 

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 the 
Yellowstone River, dumped Sarah's body and returned to his 

home. He testified he then cleaned the kitchen floor, rinsed 

off the knife used to kill Sarah and went to bed. 

Various law enforcement officials who testified stated 

that some twelve hours after the alleged confrontation, the 

appellant showed no signs of having been in a life-and-death 

struggle and that he made no mention 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 fan base 

was essentially undamaged. 

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 of his propensity for violence. 

Five issues are presented on appeal: 

1. Whether the trial court committed reversible error 

when it did not grant appellant's motion for mistrial based 

on the prosecution'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 it denied the admission of a statement allegedly made by 

the victim. 

5. Whether the trial court committed reversible error 

when it allowed the prosecution's forensic scientist to 
testify 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 the victim's death evidenced a struggle. 

As to the first issue, the appellant alleges that three 

improper comments were made by the deputy county attorney, 

comments which were highly prejudicial, made in bad faith and 

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, the body of 

Sarah Sloan was found discarded 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 first time, he filed a notice of self 

defense. This was approximately 135 days 

after the body of Sarah Sloan was 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 

"Counsel will be restricted to their opening statement as to 

facts that they intend to prove and not what Counsel was 

surprised at." 

The second comment cited by appellant as the basis for 

reversal, was also stated during the prosecution's opening 

statement: 

The man 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 final basis 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, 14 L.Ed.2d 106; and Chapman v. California (19671, 

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. It is 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 impress upon the jury the right of the defendant to 

remain silent. 

We conclude that the evidence in this case was so 

overwhelming that the comments can be classified as harmless 

error beyond a reasonable doubt. In so doing we uphold the 

District Court's denial of a motion for mistrial. 
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 loving man who found 

it necessary to kill Sarah Sloan because she had viciously 

attacked him without provocation. 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, (State v. Just (1979), 184 Mont. 262, 602 P.2d 9571, 

and a precautionary instr.uction was 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, Lois Taylor: 

Q Do you recall an incident on May 20, 

1987, concerning papers that she [Sarah] 

had drawn up? 

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, if you could just explain 

what she did -- 

A Okay, she handed me some papers and 

asked if I would 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 should have been excluded. 

This Court has long recognized the principle embodied 

in Rule 404(b), M.R.Evid., which provides: 

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.) 

The admissibility of such evidence is also governed by 

specific substantive and 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 any 
potential prejudice to the defendant. State v. Jensen 

(1969), 153 Mont. 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, 184 Mont 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 requirements would strictly apply. Here, however, 

the appellant was accused of the deliberate homicide of Sarah 

Sloan, and the evidence admitted concerned an alleged assault 

by the appellant on Sarah within six months of the homicide. 

Appellant had already denied any aggressive tendencies on his 

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, 

domineering person. Under these circumstances, such evidence 

can hardly be viewed as prejudicial given the nature of the 

appellant's defense. 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 procedural 
irregularities occurring after the prosecution gives notice 

under Just will not be grounds for reversal unless objected 

to by a defendant. Here, no such objection was 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 

his peaceful character, even if such evidence involved "other 

crimes." See, State v. Austad (1982), 197 Mont. 70, 641 P.2d 

1373; State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; and 

State v. Kutnyak (1984), 211 Mont. 155, 685 P.2d 901. In 

each of those cases, the defendants were charged with violent 

offenses and when they testified on their own behalf, they 

claimed, one way or another, to be generally peaceful 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 examination of Taylor 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 it made him fear for his 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 too remote in time to 

be relevant to the appellant's self-defense claim. 

The record indicates that before the trial court made 

its exclusionary ruling, it conducted an in camera inspection 

of the medical records at issue and, in chambers, carefully 

detailed its findings with counsel. In addition, this same 

issue was raised as part 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 

treatment were too remote in time and that the subject matter 

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 is as follows: 

A [By appellant]: We went out that 

evening. I thought best to get her out 
of 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 shoes off. 

Next thing I knew there was a -- 

something hit me in the back of the head 

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 say any more about that? 

A Well, she mentioned to me I was pretty 

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 construction of Rule 801, M.R.Evid., 

a portion of the testimony allowed is clearly subject to the 

hearsay objection. It appears no more than a recitation of a 

direct statement made by Sarah to which an objection could 

have been lodged. There is no 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. State v. 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 since he was not present when the blood in question 

was splattered. We find this argument rather farfetched. 

Mr. Konzak is qualified as an expert witness in the field of 

forensic serology. In qualifying him as an expert, the 

following testimony was 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 you been 

qualified as an expert in testimony in 

regard to forensic serology? 

A Yes, I have. 

Q Do you recall how many times, 

possibly? 

A 63, 64, somewhere in there. 

[Defense counsel] : Your Honor, we'd 

stipulate to the witness's credentials as 

a Forensic Serologist. 

THE COURT: Very well. He's qualified. 

(Emphasis added. ) 

It is to the following testimony that the appellant 

claims his theory of self-defense was greatly prejudiced by 

the testimony on blood disposition. 

Q [By the prosecution] : Okay. Do you 

see what appears to be some blood 

splatters in that photograph? 

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 the kitchen door. 

Q Okay. Can you -- in looking at the 

photograph of those blood splatters, can 

you tell anything about direction or 

force or 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 to having been dropped from above 

down on to the lower part of the door. 
Q So, is it fair to say, that would not 

be consistent with someone standing above 

the door and bleeding down upon it? 

A That's very true. Also, there are 

some smears over here 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 the direction that I was 

mentioning before. 

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 that a violent struggle had 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 detective was, 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 see anything 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 that question. 

This witness might 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 certainly has not been. 

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 

sign of a struggle? 

A Yes, sir. 

Q What indicated to you that there was a 

struggle at that residence? 

A The pattern of blood splatters and 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 to have been 

thrown through the house? 

A No, sir. 

Q Just the blood 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.