NO. 87-283

IN THE SUPREME COURT OF THE STATE OF MONTANA 1988

STATE OF MONTANA, Plaintiffand Respondent,-VSSTACY GENE HALL, Defendantand Appellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for the County ofMissoula, TheHonorable DouglasHarkin,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
J. Dirk Beccari, Missoula,Montana
For Respondent:
Hon. Fike Greely,Attorney General, Helena,Montana Barbara Claassen,Asst. Atty. General,Helena Robert 

### L. Deschamps,111,CountyAttorney, Missoula, Montana; Ed McLean, Deputy County Attorney

Submittedon Briefs: July 14, 1988 Decided: September 15, 1989 Filed: 

### SEP1

### 51988'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 amistrialwas called. A second jury trial was scheduled for September 25, 1986. In that trial, Hall was found guilty of all three countsof theft and

was sentenced to three ten-year terms to run consecutively, with seven years suspended on each term. We affirm. The issueson appeal are: 1. Whether the District Court properly admitted evidence of other acts. 2. Whether theDistrictCourtproperly 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 appellantpursuant 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 cartridgeeraser/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 apicture of Stacy Hall and his low power radio station featured in theMissoulian newspaper. At the October 3, 1985 trial, the jury was unable to reach the necessary unanimous decision on any of the counts forwhich the judge declared amistrial and set a date for a second trial. The defendant testified at the first trialbut chose to refrain from testifying in his second trial declaring his right against self-incrimination under the Fifth Amendment. The State introduced into evidenceportions 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 evidenceofa 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 Statev. Just (1979),184 Mont. 262, 602P.2d 957. At the procedural level, the party introducing evidence ofprior actsmust give advancenotice 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 toprove the defendant is ofbad characterbut rather to show a common scheme, plan, or designby 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, 184Mont. at 269, 602P.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 thedefendant. 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 Statev. 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 chargeswere 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 isnot 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 theremay be some showingofprejudice 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

wasproperly admitted. The second issue iswhether the District Courtproperly admitted defendant's testimony from the first trial in thesecond trialat 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 averdict or findinghasbeen rendered. The granting of a new trial places the parties in the same position as if therehad been no trial. In conjunction with $5 46-16-701, S 46-16-702 provides in pertinentpart: (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 trialmay be granted only where there has been a "finding" or a "verdictof guilty" in the former trial. Black's Dictionary defines a verdict as: "The formal decision or finding made by a jury, 

# ..

# ."A "finding" isdefined 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 (5thed. 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 therewas no finding. The hung jury andmistrial 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 -702are 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 guiltyby the court. The DistrictCourt 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 inpertinent part: (d)

### Statements which are not hearsay. A statement is nothearsay if:

(2) Admission by party-opponent. The statement is offered againstaparty and is (A)his own statement, in eitherhis individual or a representative capacity, or (B) 

### a statement of which he has manifested his adoption orbelief in its truth

# .. . The State introduced the former testimony ofHall as an admission by Hall regarding his possession of the stereo and radio equipment in question. Statements made by a declarant who is aparty-opponentare simplynot classified ashearsay, 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 intelligentwaiver: A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver isno less effective or complete because the defendantmay have beenmotivated to take the witness stand in the first place only by reason of the strength of the lawful evidenceadduced againsthim. Harrisonv. United States (19681,392U.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 oathbolsters their reliability. Therefore, under Rule 801(d)(2), M.R.Evid., in testifying at the first trial, the appellantmade admissionswhich wereproperly admittedby 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, inpertinentpart: 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 ofprivilege from testify

### -- - ing 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 actionsand proceedings, if the party against whom the testimony is now offered had an opportunity and similarmotive to develop the testimony by direct, cross,and redirectexamination. 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 canbe 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 trialmay 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 subsequenttrials. The Court ofAppeals from the Districtof 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 casewho takes the stand inhis own behalf and testifieswithout asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that itmay 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 theuse of his testimony givenat 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

(9thCir. 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!, 158F.2d 651;Heller v. United Cases (7thCir. 1932), 57 F.2d627, cert. denied, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298 (dictum)

# . A valid waiver of FifthAmendment rights requires that the decision to testify be an intelligent decision with knowledge of its consequences.



# . . .when a witnessvoluntarily testifies,theprivilege 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 theprivilege against self-incrimination against the advantage ofputting 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 thisprivilege and testifies thenhis testimony canbe used againsthim in a subsequent trial." Statev. Haggard (Idaho 1971), 486 P.2d 260, 263. See also: People

v. Arrington (Colo.App. 1983) 682P.2d 490;Peoplev. 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 crimemade 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 theprior 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, 34L.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 accumulatedwhich 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 Hallby 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. JusticeWilliam E. Hunt, Sr., concurring:

I concur intheresultbut not inallthat is saidin themajority opinion.