NO. 87-283 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSSTACY GENE HALL, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dirk Beccari, Missoula, Montana 

For Respondent : 

Hon. Fike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana; Ed McLean, Deputy County Attorney 

Submitted on Briefs: July 14, 1988 

Decided: September 15, 1989 

Filed: SEP 1 5 1988' 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Stacy Gene Hall appeals his jury conviction of felony 

theft, in violation of § 45-6-301, MCA. Appellant was 

charged by information with three counts of theft of radio 

equipment and- tried in the District Court of the Fourth 

Judicial District, Missoula County, Judge Douglas G. Harkin 

presiding. From the trial of early October 1985, the jury 

did not return a verdict and a mistrial was called. A second 

jury trial was scheduled for September 25, 1986. In that 

trial, Hall was found guilty of all three counts of theft and 

was sentenced to three ten-year terms to run consecutively, 

with seven years suspended on each term. 

We affirm. 

The issues on appeal are: 

1. Whether the District Court properly admitted evidence of other acts. 

2. Whether the District Court properly admitted appellant's first trial testimony in a second trial at which 

appellant did not testify. 

3. Whether the doctrine of cumulative error is applicable in the case on appeal. 

On January 22, 1985, Missoula police searched the 

residence of appellant pursuant to a search warrant and found 

radio equipment which had been reported as stolen from three 

Missoula radio stations. The equipment consisted of a disco 

unit with two turntables, a control board set in a portable 

cabinet, a cartridge rack, a cartridge eraser/splicer-finder, 

a cartridge recorder player, microphones, an adaptor, and 

numerous two-track cartridges. The pieces had been taken 

from KGVO radio station, KUFM, and FGRZ radio. The search 

warrant was issued when the equipment was identified in a 
picture of Stacy Hall and his low power radio station 

featured in the Missoulian newspaper. 

At the October 3, 1985 trial, the jury was unable to 

reach the necessary unanimous decision on any of the counts 

for which the judge declared a mistrial and set a date for a 

second trial. 

The defendant testified at the first trial but chose to 

refrain from testifying in his second trial declaring his 

right against self-incrimination under the Fifth Amendment. 

The State introduced into evidence portions of Hall's testimony from the first trial. The District Court allowed the 

evidence pursuant to Rule 801, M.R.Evid. Defendant objected 

alleging that the testimony was not an admission by a 

party-opponent according to Rule 801 (d) (2) , M. R. Evid. Furthermore, the State introduced the testimony from the first 

trial to rebut testimony of defendant's witness. Appellant 

contended that this was an improper use of Hall's former 

testimony. Defendant also objected on the grounds that the 

new trial nullified any previous testimony of Hall. However, 

the District Court ruled that the testimony was admissible. 

Hall was convicted on all three counts of felony theft 

and on December 15, 1986, was sentenced to thirty years in 

the Montana State Prison, with all but nine years suspended. 

Appellant first contends that the District Court improperly admitted evidence of appellant' s others acts. The 

State attempted to introduce evidence of a burglary committed 

on August 4, 1984, to which Hall plead guilty. The item 

taken in the burglary was a stereo cartridge. The State 

introduced this evidence because the stereo cartridge was 

compatible with the radio equipment taken from the three 

radio stations for running a low power radio station. 

The requirements for proper admittance of prior acts 

evidence is found in State v. Just (1979), 184 Mont. 262, 602 
P.2d 957. At the procedural level, the party introducing 

evidence of prior acts must give advance notice of its intent 

to offer the prior acts into evidence. At the time that the 

evidence is offered, the judge must warn the jury that the 

prior acts evidence is admitted not to prove the defendant is 

of bad character but rather to show a common scheme, plan, or 

design by the defendant. Third, before jury deliberations, a 

special instruction is given to the jury to admonish them of 

the proper purpose for which the evidence is to be offered. 

Once the State has fulfilled the requirements, the 

District Court applies the four-part test espoused in Just, 

184 Mont. at 269, 602 P.2d at 961: 

1. Similarity of crimes or acts; 

2. nearness in time; and 

3. tendency to establish a common 

scheme, plan or system; and 

4. the probative value of the evidence 

is not substantially outweighed by the 

prejudice to the defendant. 

Appellant contends that the burglary and the theft are 

not similar crimes. Although the charges are distinct, the 

acts are similar. Both were the illegal conversion of radio 

equipment, compatible for use in a low power radio station. 

In State v. Tecca (Mont. 1986), 714 P.2d 136, 43 St.Rep. 264, 

we held that the acts come within the Just exception if they 

are sufficiently similar to sustain admission. In State v. 

Clausen (Mont. 1987), 740 P.2d 679, 44 St.Rep. 1308, where 

the defendant was charged with possession of marijuana, 

psilocybin and magic mushrooms, evidence of prior acts of 

selling cocaine was admitted. We declared that the difference in the types of drugs and their quantities were 

irrelevant--the similarity was in the defendant's actions. 
In the case on appeal, although the charges were different, the defendant's actions of illegally taking radio 

equipment were the same. The acts here are sufficiently 

similar. 

The second Just requirement is nearness in time. Since 

there was a time span of only six months between the acts, 

remoteness is not at issue. 

The third tier of the Just test is whether the prior 

acts tend to show a common scheme, plan or system. Both the 

equipment taken in the theft and the equipment taken in the 

burglary are suitable for use in a low power radio station. 

The equipment taken was similar. In both instances, appellant went to the business where the equipment was located, 

acting as if he was on official business, in order to gain 

entrance to take the equipment. This tends to show a common 

scheme, plan, or system. 

Although there may be some showing of prejudice towards 

appellant by admitting evidence of prior acts, the probative 

value outweighs the prejudicial effect because the acts are 

similar, are near in time, and show a common scheme. It is 

important to look at all four factors of the Just test when 

determining the admissibility of prior acts evidence. 

. . . failure of questioned evidence to 

meet only one element of the Just test 

is not sufficient to refuse its admission, a decision to admit the evidence 

should not be made lightly. The four 

factors must be considered together. 

State v. T.W. (Mont. 1986), 715 P.2d 428, 430, 43 St-Rep. 

368, 371. 

We hold that evidence of prior crimes or acts by Hall 

was properly admitted. 

The second issue is whether the District Court properly 

admitted defendant's testimony from the first trial in the 
second trial at which the defendant did not testify. Section 

46-16-701, MCA, reads: 

A "new trial" is a reexamination of the 

issue in the same court before another 

jury after a verdict or finding has been 

rendered. The granting of a new trial 

places the parties in the same position 

as if there had been no trial. 

In conjunction with $5 46-16-701, S 46-16-702 provides in 

pertinent part: 

(1) Following a verdict or finding of 

guilty, the court may grant the defendant a new trial if required in the 

interest of justice. 

Appellant contends that S 46-16-701 is applicable and 

that in the case of the second trial here, no testimony from 

the first trial can be used because it is a nullity. 

The statutes show that a new trial may be granted only 

where there has been a "finding" or a "verdict of guilty" in 

the former trial. Black's Dictionary defines a verdict as: 

"The formal decision or finding made by a jury, . . ." A 

"finding" is defined as: "A decision upon a question of fact 

reached as the result of a judicial examination or investigation by a court, jury, . . . etc." A hung jury is defined 

in Black's as: "A jury so irreconcilably divided in opinion 

that they cannot agree upon any verdict. " Black's -- Law Dictionary (5th ed. 1979). 

Appellant contends that there was a "finding" in the 

previous trial and S$ 46-16-701 and -702 apply, preventing 

former testimony from being admissible. However, it is clear 

that there was no finding. The hung jury and mistrial do not 

meet the requisite standards of finding or verdict in 

§§ 46-16-701 and -702. Therefore, we hold that the statutes 

are not applicable. Sections 46-16-701 and -702 are concerned 

with a new trial. in the interests of justice only for 
defendants who have been convicted. New trials where prior 

testimony is not allowed must be granted on a limited basis, 

limited by SS 46-16-701 and -702 after a jury verdict of 

guilty or a finding of guilty by the court. 

The District Court made its finding on the grounds that 

the former testimony by Hall was an admission of a 

party-opponent within the confines of Rule 801, M.R.Evid. 

Rule 801 (d) (2) provides in pertinent part: 

(d) Statements which are not hearsay. A 

statement is not hearsay if: 

(2) Admission by party-opponent. The 

statement is offered against a party and 

is (A) his own statement, in either his 

individual or a representative capacity, 

or (B) a statement of which he has 

manifested his adoption or belief in its 

truth . . . 

The State introduced the former testimony of Hall as an 

admission by Hall regarding his possession of the stereo and 

radio equipment in question. Statements made by a declarant 

who is a party-opponent are simply not classified as hearsay, 

but are admissions by him which are used later against his 

interest. 

The statements made by Hall are reliable because they 

were made voluntarily, under oath, and with the opportunity 

of cross-examination. At the time that the appellant testified, he was represented by counsel and voluntarily took the 

stand. Once the defendant took the stand voluntarily, under 

oath, and subject to cross-examination, he made a knowing and 

intelligent waiver: 

A defendant who chooses to testify 

waives his privilege against compulsory 

self-incrimination with respect to the 

testimony he gives, and that waiver is 
no less effective or complete because 

the defendant may have been motivated to 

take the witness stand in the first 

place only by reason of the strength of 

the lawful evidence adduced against him. 

Harrison v. United States (19681, 392 U.S. 219, 222, 88 S.Ct. 

2008, 2010, 20 L.Ed.2d 1047, 1051. When appellant makes 

admissions, whether down at the local tavern or under oath, 

the statements can be used against his interest at later 

proceedings. The fact that the admissions have been made 

under oath bolsters their reliability. Therefore, under Rule 

801(d) (2), M.R.Evid., in testifying at the first trial, the 

appellant made admissions which were properly admitted by the 

District Court in the second trial. 

Applicable to the question of former testimony introduced into evidence at subsequent trials is Rule 804, 

M.R.Evid. Rule 804 provides, in pertinent part: 

Rule 804. Hearsay Exceptions: declarant 

unavailable. 

(a) Definition of unavailability. Unavailability as a witness includes 

situations in which the declarant: 

(1) 2 exempted by ruling . - -- of the court . - 

-- on the ground - of privilege from testifying concerning the subject matter -- of his 

statement: [emphasis supplied] 

(b) Hearsay exceptions. The following 

are not excluded by the hearsay rule if 

the declarant is unavailable as a 

witness: 

(1) Former testimony. Testimony given as 

a witness at another hearing of the same 

or a different proceeding, . . . (B) in 

criminal actions and proceedings, if the 

party against whom the testimony is now 

offered had an opportunity and similar 
motive to develop the testimony by 

direct, cross, and redirect examination. 

Because Hall chose to not testify he was declared 

unavailable by the court as a matter of privilege. As an 

unavailable witness, his former testimony can be used in the 

second trial where he had the opportunity to decide whether 

or not to testify. 

Whether testimony of the defendant from the previous 

trial may be used at the second trial is a question of first 

impression before this Court. There are no Montana cases 

which specifically address the use of prior testimony in 

subsequent trials. The Court of Appeals from the District of 

Columbia discussed the issue in Edmonds v. United States 

(D.C. Cir. 1959), 273 F.2d 108, 112-113, cert. denied, 362 

U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012: 

It is generally held, unless a statute 

directs otherwise, that a defendant in a 

criminal case who takes the stand in his 

own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as 

to the testimony given so that it may be 

used against him in a subsequent trial 

of the same case. The fact that the 

defendant does not take the stand at the 

second trial does not prevent the use of 

his testimony given at the former trial, 

if it would otherwise be admissible. 

Other federal cases have followed this general rule: United 

States v. Anderson (4th Cir. 1973), 481 F.2d 685, aff'd, 417 

U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20; London v. Patterson 

(9th Cir. 1972), 463 F.2d 95, cert. denied, 411 U.S. 906, 93 

S.Ct. 1531, 36 L.Ed.2d 196; Ayres v. United States (5th Cir. 

1952), 193 F.2d 739; Warde v. United States (D.C. Cir. 1946!, 

158 F.2d 651; Heller v. United Cases (7th Cir. 1932), 57 F.2d 
627, cert. denied, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298 

(dictum) . A valid waiver of Fifth Amendment rights requires that 

the decision to testify be an intelligent decision with 

knowledge of its consequences. 

. . . when a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need 

of accepting testimony freed from the 

antiseptic test of the adversary process. . . . Such a witness has the 

choice, after weighing the advantage of 

the privilege against self-incrimination 

against the advantage of putting forward 

his version of the facts and his reliability as a witness, not to testify at 

all. 

Brown v. United States (19571, 356 U.S. 148, 155, 78 S.Ct. 

In the case here on appeal, Hall was represented by 

counsel and made a knowing waiver of his Fifth Amendment 

rights when he voluntarily chose to testify in the first 

trial. He was advised of his rights and therefore made a 

knowing and intelligent decision to testify. " [Olnce a 

defendant waives this privilege and testifies then his testimony can be used against him in a subsequent trial." State v. 

Haggard (Idaho 1971), 486 P.2d 260, 263. See also: People 

v. Arrington (Colo.App. 1983) 682 P.2d 490; People v. Carlson 

(Colo.App. 1983) 677 P.2d 390, aff'd, (Colo. 1986) 712 P.2d 

1018; People v. Downer (Colo. 1976) 557 P.2d 835; State v. 

Peele (Wash.App. 1973) 516 P.2d 788. "[Tlhe defendant's 

testimony at his first trial was clearly admissible at his 

second trial . . . [A] judicial confession or admission 

connected with the crime made in court is admissible." State 

v. Stoneman (Ariz. 1977), 566 P.2d 1340, 1343. 
Appellant also contends that the former testimony was 

improperly admitted as rebuttal testimony. Hall claimed he 

received the radio equipment from PGL Company in New York. 

Other witnesses stated that Hall reported other means of 

acquiring the equipment. Testimony of appellant in the prior 

prosecution is properly admissible despite the fact that it 

was used as rebuttal testimony. United States v. Houp (8th 

Cir. 1972), 462 F.2d 1338, cert. denied, 409 U.S. 1011, 93 

S.Ct. 456, 34 L.Ed.2d 305, reh. denied, 409 U.S. 1119, 93 

S.Ct. 918, 34 L.Ed.2d 704. 

We hold that the testimony of Hall in the first trial 

was properly admitted in the second trial according to Rul-es 

801 and 804, M.R.Evid., and federal and state precedent. 

The third issue is whether the doctrine of cumulative 

error is applicable in this appeal. The general rule of 

cumulative error is that reversal is required if a number of 

errors are accumulated which prejudice defendant's right to a 

fair trial. State v. Meidinger (1972), 160 Mont. 310, 502 

P.2d 58; State v. McKenzie (1978), 177 Mont. 280, 581 P.2d 

1205. 

Appellant contends that the prejudice to Hall by allowing prior acts evidence and his former testimony results in 

cumulative error. We have held the evidence of prior acts 

admissible and the former testimony properly admitt.ed. 

Therefore, there is no cumulative error. 

Affirmed. 
We concur: 

Mr. Justice William E. Hunt, Sr., concurring: 

I concur in the result but not in all that is said in 

the majority opinion.