NO. 95-063 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

STATE OFMONTANA,

Plaintiff and Respondent,

v. ERNEST0 RENDON,

Defendant andAppellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge presiding.

COUNSELOFRECORD:

For Appellant: James B. Obie, Attorney at Law, Helena, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W.Coughlin, Assistant Attorney General, Helena, Montana Mike McGrath, Lewis andClark County Attorney, Vicki Frazier, Deputy County Attorney, Helena, Montana

Submitted onBriefs: August 10, 1995

Decided: September 21, 1995 Filed:Justice Terry N. Trieweiler delivered the opinion of the Court.

Defendant Ernest0 Rendon wascharged byinformation, filed in the District Court for the First Judicial District in Lewis and Clark County, with felony assault, inviolation of §45-5-201(l) (a) and (3), MCA. Following anonjury trial, hewas found guilty of the crime charged. Rendon wassentenced to serve five years in the Montana State Prison. However, his sentence wassuspended, based

onseveral conditions. Rendon appeals his conviction. Weaffirm the judgment of the District Court. Rendon raises two issues onappeal: 1. Did the District Court err whenit denied Rendon's motion for mistrial on the basis of an allegation that the victim was coached while onthe stand? 2. Did the District Court abuse its discretion when it excluded evidence intended to attack the credibility of the victim's mother? FACTUAL BACKGROUND Ernest0 Rendon lived with his girlfriend, Melanie Schmaus, and M.S., her son, for several years. OnMay30, 1994, Rendon looked after M.S. in their family homewhile Schmaus worked a4-11 p.m. shift. Schmaus stayed after work that night and drank several beers with her co-workers. WhenSchmaus arrived homeat around 2 a.m., Rendon told her that her sonhadbeen injured earlier in the evening when he hit his head on the coffee table. Schmaus went into M.S.'s bedroom to check onhim, but Rendon told her to let the

2child sleep. While in the bedroom, Schmaus could see a large

bruise across the side of M.S.'s face. When Schmaus returned from work the next day and examined M.S.'s bruises, shewastold by M.S. that Rendon had struck him. The following day, onJune 1, 1994, Schmaus took M.S. to the emergency room at St. Peter's Hospital, where hewas examined by James Hoyne, M.D., the emergency room doctor. Dr. Hoyne testified at trial that whenheexamined M.S. hehad marks onthe right side of his face andsignificant bruises onthe left side of his face. Dr. Hoynedescribed the bruises onthe left side of M.S.'s face as "three separate lines approximately aninch wide, separated byhalf-an-inch, what [sic] appeared to bestarting at the cheek andgoing across the ear towards the forehead." Dr. Hoyne testified that the bruises were caused by significant force and were consistent with M.S. having been struck by a hand. According to Dr. Hoyne, M.S. told him during the examination that hehadbeen hit in the face. Dr. Hoyne testified that Schmaus was probably in the room at the time, but that M.S. did not need any coaching to describe what had happened to him. At trial, M.S. testified that Rendon hadbeen madat him and had "hitted mereally fast." Whenhewasasked to demonstrate what hadhappened, M.S. used his right handandswung it toward the left side of his face. M.S. also indicated that Rendon hadpushed him. After the State presented its evidence, Rendon called a witness who testified that M.S. had been coached by acourtroom

3observer while hegave his testimony. According to the witness,

the observer would nodor shake her head in response to the State's questions, and M.S. would pause and answer consistently with the head motion. Onthe basis of this testimony, Rendon moved for a mistrial. However, the motion was denied. The District Court stated that based on its observation, the victim did not look to anyone for advice while he gave his testimony. The court also concluded that most of the critical testimony wasnot in the form of "yes" or "no" answers which could have been coached. Rendon attempted to introduce evidence at trial to show Schmaus's intense dislike ofandbias against him. It wasRendon's contention that this bias would indicate that Schmaus would "do everything she can against [Rendon] and lie to whatever extent necessary." Rendon further claimed that this evidence would suggest that Schmaus had instructed her son to testify falsely against him. The court, however, excluded the evidence, based on its conclusion that it wasirrelevant. ISSUE 1 Did the District Court err whenit denied Rendon's motion for mistrial onthe basis of anallegation that the victim wascoached while onthe stand? The standard of review for adistrict court's denial of a mistrial is whether there is clear andconvincing evidence that the court's ruling is erroneous. StateV.Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. This Court has held that a mistrial is

4appropriate Only when there is a demonstration of manifest

necessity and where the defendant has been denied a fair and impartial trial. Greytak, 865P.Zd at 1098. Rendon maintains that the District Court erred when it denied his motion for mistrial based onthe alleged coaching of the victim by acourtroom observer. Heasserts that hewasdenied his Sixth Amendment right to confront the witness, whom he contends was actually the courtroom observer. Rendon offers as evidence only the testimony of awitness whoobserved the alleged coaching. This witness admitted that hedid not have aview of M.S. to determine if M.S. waswatching the courtroom observer before he responded. Thetrial judge, onthe other hand, noted that hehadwatched M.S. during his testimony andthat hedid not appear to belooking for assistance. Based onthe record, weconclude that the District Court did not err when it denied Rendon's motion for a mistrial. The district court is in the best position to determine whether coaching of awitness hasoccurred, andif so, hasbroad discretion to determine whether such coaching has been prejudicial to either party.The court stated that based onits observation, M.S. wasnot looking to anyone to aid his testimony. M.S. answered critical questions in complete sentences in his ownwords. The court also concluded that most of M.S.'s responses were not the type of

answers that could have been coached from the audience.

5Weconclude that there is not clear and convincing evidence

that the District Court's denial of Rendon's motion for mistrial

was erroneous. Weaffirm the District Court's denial of Rendon's motion for mistrial. ISSUE 2 Did the District Court abuse its discretion when it excluded evidence intended to attack the credibility of the victim's mother? Thestandard of review for district court evidentiary rulings is whether the court abused its discretion. Statev.Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant andadmissible is left to the sound discretion of the trial judge, and absent ashowing of abuse of discretion, will not beoverturned. Gollehon,864 P.2d at 1263. Rendon contends that the District Court erred when it prohibited him from introducing evidence about the victim's mother, Melanie Schmaus. The proffered evidence consisted of testimony about the antagonistic relationship between Rendon and Schmaus as illustrated by several specific acts of conduct. Rendon argues that the purpose of the evidence was to establish the bias or motive of Schmaus to testify falsely against him at trial and to influence the testimony of her son. The District Court excluded the proposed evidence, based on its conclusion that the evidence was irrelevant. Rule 401, M.R.Evid., defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence

6to the determination of the action more probable or less probable

than it would bewithout the evidence." The District Court took note of the poor relationship between Schmaus and Rendon in its decision, but held that Rendon's conviction did not depend on Schmaus's testimony. Schmaus's testimony was basically foundational and undisputed. Rendon's conviction wassupported primarily byphysical evidence which was inconsistent with his version ofevents andthe direct testimony of M.S. Furthermore, since the District Court was already aware of the hostility between Schmaus and Rendon, the proffered evidence would have, at best, been cumulative. We conclude that the District Court did not abuse its discretion when it excluded evidence designed to attack the credibility of the victim's mother. Weaffirm appellant's conviction for felony assault.

/ JU ice Weco*cuc: