96-330

No. 96-330

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CHRISTOPHER ARTHUR MCKEON,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Brian P. Fay, Angel, Screnar, Coil, Bartlett & Fay, Bozeman, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Tammy K. Plubell, Assistant

Attorney General, Helena, Montana; Marty Lambert, Gallatin County

Attorney, Bozeman, Montana

Submitted on Briefs: March 27, 1997

Decided: May 8, 1997

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

 Appellant Christopher Arthur McKeon (McKeon) was found guilty of one count

of robbery and one count of felony theft following a jury trial in the Eighteenth Judicial

District Court, Gallatin County, and was subsequently sentenced to a term of years at the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (1 of 7)4/11/2007 2:37:19 PM
96-330

Montana State Prison. McKeon appeals, arguing that the District Court made several

incorrect evidentiary rulings which require that his guilty verdicts be reversed.

 We affirm the District Court.

 McKeon presents the following issues for our review:

 1. Whether McKeon's booking photo, which was not part of the reciprocal

discovery package, should have been admitted into evidence.

 2. Whether photographs depicting McKeon with his alleged accomplices,

brandishing firearms, should have been excluded as irrelevant and highly prejudicial.

 3. Whether the prosecution should have been permitted to elicit testimony from

the arresting officer speculating as to the most direct route McKeon may have traveled

from Montana to Iowa.

 4. Whether testimony identifying McKeon's vehicle as a stolen vehicle should

have been excluded as "other crimes" evidence.

 5. Whether the "cumulative error doctrine" as applied to the above-cited errors

warrants a finding of reversible error.

BACKGROUND

 At approximately 10:50 a.m. on November 5, 1994, two men robbed the Story

Exxon gas station and convenience store in Bozeman, Montana. The clerk on duty at

the time of the robbery testified at trial that the two men wore black knit caps pulled

down to partly cover their faces. The caps had eye holes cut into them to allow the

robbers to see. One of the robbers, robber #1, was carrying a sawed-off shotgun partly

concealed under his coat. Robber #2 was carrying under his coat a sawed-off rifle. The

clerk described robber #1 as in his forties, approximately five feet, six inches tall and 160

pounds, and unshaven, with dark, grey-specked facial hair. The clerk described robber

#2 as a younger man, in his thirties, nearly six feet tall, and, like robber #1, unshaven. 

 The robbers pointed their weapons at the clerk and demanded the money in the till

and in the store safe. The robbers then made the clerk lie face down on the floor, where

they bound his wrists and covered his eyes with duct tape. Before leaving the store with

nearly $1460, the robbers took a ten-pack roll of Copenhagen snuff from the counter and

a twelve-pack of Budweiser beer from the cooler. The clerk notified the authorities

shortly after the robbers left, but a police investigation in Bozeman failed to result in

either the identification or apprehension of any suspects in the robbery.

 However, at approximately 8:00 p.m. on November 5, 1994, a Johnson County,

Wyoming Deputy Sheriff, John Wohlbrandt, after investigating a stolen vehicle report,

arrested Cecil Ashworth outside of a convenience store in Buffalo, Wyoming. At the

time of his arrest, Ashworth was unkempt and unshaven, and had $450 in his pocket.

 Deputy Wohlbrandt impounded the stolen vehicle. Officers from the Bozeman

Police Department who were investigating the robbery there were dispatched to Buffalo

the next day. A search of the stolen vehicle resulted in the seizure of a roll of

Copenhagen, a sawed-off 22-caliber rifle and ammunition, an open twelve-pack of

Budweiser beer, a brown knit cap with eye holes cut into it, and an Oregon license plate.

 Meanwhile, on November 6, 1994, at approximately 10:00 p.m., an Iowa state

trooper pulled over a black Ford Courier pick-up truck for speeding. The truck's lone

license plate was from Oregon, and it was later determined that the license plate's mate

was the Oregon plate found in the car Ashworth stole in Wyoming. It was also

determined later that the pick-up was similar in color, year, and design to the truck seen

circling the area around the Story Exxon shortly before the robbery occurred there. The

trooper ran a check on the truck, determined that it was stolen, and then arrested the

driver, McKeon, and the female passenger, Debbie Ashley. At the time of their arrests,

McKeon had $482 cash in his billfold and Ashley had $160 cash in her purse. A booking 

photograph was later taken of McKeon, which depicts a man with dark hair and dark,

grey-specked facial stubble.

 The pick-up was impounded, and subsequently searched. Iowa authorities initially

discovered a sawed-off .12-gauge shotgun, 40 rounds of .12-gauge shotgun ammunition,

a plastic bag with loose change, and a bag containing rolls of quarters, dimes, and

nickels. They also found a hacksaw blade, a dark blue knit cap with eye holes cut into

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (2 of 7)4/11/2007 2:37:19 PM
96-330

it, an atlas opened to the state of Iowa, a .22-caliber shell and a roll of duct tape. A

subsequent search revealed a receipt from Sunshine Foods in Sioux Falls, South Dakota,

dated November 6, 1994, and a receipt from Thrifty Motor Inn in Rapid City, South

Dakota, dated November 5, 1994.

 Ashworth and McKeon were charged with robbery and theft in connection with the

Story Exxon hold up, and Ashley was charged with accountability for robbery. McKeon

and Ashworth, identified as robbers #1 and #2, respectively, were tried separately, and

Ashley, pursuant to a plea agreement, testified as a State witness in McKeon's trial. 

Ashley testified that she, McKeon and Ashworth traveled together through the western

United States in the fall of 1994; that in October in Colorado she purchased a shotgun for

McKeon and a rifle for Ashworth, weapons which the men later altered and used in the

robbery in November; that she, McKeon and Ashworth drove to Bozeman in the black

Ford Courier pick-up truck, and that McKeon and Ashworth, with masks on and their

weapons under their jackets, entered the Story Exxon mid-morning on November 5,

1994; that after the robbery, the three of them drove to Gillette, Wyoming, where

Ashworth separated from McKeon and Ashley; and, that she and McKeon continued on

eastward until they were arrested in Eldora, Iowa. 

 Over McKeon's objections, the court admitted the following evidence relevant to

this appeal: the booking photograph of McKeon taken after his arrest in Iowa; a

photograph, taken in October 1994, of McKeon brandishing a shotgun and Ashworth

brandishing a rifle; a photograph, taken in October 1994, of McKeon and Ashley; a

photograph, taken in October 1994, of Ashworth and Ashley; testimony regarding the

most direct route McKeon may have traveled from Montana to Iowa; and, testimony

identifying as stolen the pick-up McKeon was driving when he was arrested in Iowa. 

Following the presentation of this and other evidence, the jury found McKeon guilty of

the crimes charged. McKeon appeals.

STANDARD OF REVIEW

 The district courts have broad discretion to determine whether or not evidence is

relevant and admissible. State v. Oatman (1996), 275 Mont. 139, 143-44, 911 P.2d 213,

216. An item of evidence is relevant if it will have any value, as determined by logic and

experience, in proving the proposition for which it is offered. Oatman, 911 P.2d at 216

(citation omitted). We review a district court's evidentiary ruling to determine whether

the court has abused its discretion. Oatman, 911 P.2d at 216 (citation omitted). Even

if evidence is improperly admitted, we will reverse the district court only if the admission

of the evidence prejudiced the defendant. State v. Gray (1983), 202 Mont. 445, 449, 659

P.2d 255, 257. "The test of prejudicial error requiring reversal is this: Is there a

reasonable possibility that the inadmissible evidence might have contributed to the

conviction?" Gray, 659 P.2d at 257 (citation omitted).

ISSUE ONE

 Whether McKeon's booking photo, which was not part of the reciprocal discovery

package, should have been admitted into evidence.

 At trial, McKeon's hair was a brownish-red color. The Story Exxon clerk and

others who had glimpsed the robbers described robber #1 as having dark hair. When

Iowa State Trooper Pearson, who had arrested McKeon in Iowa, came to Bozeman to

testify, he brought with him McKeon's booking photograph. When the State discovered

that Trooper Pearson had the photo, it notified McKeon and provided him with the photo

the day before trial. The photograph, which shows a dark-haired McKeon at the time of

his arrest in Iowa, was admitted at trial and served to support the State's assertion that

McKeon was indeed robber #1, while at the same time undermined McKeon's assertion

that he was not robber #1 because his appearance was inconsistent with the descriptions

given by the State's witnesses.

 McKeon contends the photograph was improperly admitted because it was not part

of the reciprocal discovery package. Sections 46-15-322 and -323, MCA, require the

prosecution and the defense to disclose all relevant information in order to "provide

notice and prevent surprise." State v. Davidson (1994), 266 Mont. 404, 410, 880 P.2d

1331, 1335 (citing State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 462 P.2d

897).

 When deciding whether a photograph is admissible, the court must first determine

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (3 of 7)4/11/2007 2:37:19 PM
96-330

whether the photograph is relevant and, second, whether the probative value of the

photograph outweighs the possible prejudicial effect. Rule 403, M.R. Evid.; see also

State v. Bristow (1994), 267 Mont. 170, 176, 882 P.2d 1041, 1045. Here, the relevancy

of the photograph is not seriously disputed. This case is about the identity of robber #1,

and the photograph, taken two days after the commission of the robbery, establishes

McKeon's identity around the time of the robbery and corroborates State witness

descriptions of the hair color of robber #1.

 However, McKeon contends that because the photograph was not produced with

other evidence at the time of reciprocal discovery, but rather was produced the day before

trial, he was unfairly surprised, the prosecution gained an unfair advantage, and his case

was prejudiced. McKeon's argument here would be stronger were there any indication

that the State deliberately withheld the photograph until the day before trial. A review

of the record does not reveal this to be the case. Instead, the record shows McKeon

acknowledged that the State had not intentionally withheld the photograph from him. 

That being the case, the State correctly contends that it properly and timely informed

McKeon of the photo's existence, pursuant to its continuing duty to disclose. Section 46-

15-327, MCA.

 The State's compliance with the spirit of the discovery rules does not end the

inquiry here. A relevant piece of evidence disclosed in accordance with the discovery

rules may still be excluded from trial if its probative value is outweighed by its potential

prejudicial effect. That is not, however, the situation here. McKeon placed identity at

issue at trial, noting in his opening statement the discrepancy between the State's

witnesses' descriptions of robber #1, and his appearance at trial. The photograph's value

in linking McKeon and robber #1 as the same person outweighs any potential prejudicial

effect. In any event, we are not convinced that McKeon was unfairly prejudiced by the

photograph. McKeon's decision to alter his physical appearance at trial from his

described physical appearance at the time of the robbery, to insert the issue of mistaken

identity, was a strategic decision that failed. We commented on another defendant's

failed strategic decision in State v. Madera (1983), 206 Mont. 140, 148, 670 P.2d 552,

556:

 He took a chance and his strategy failed. He was caught in a trap of his

 own making, and no constitutional or statutory impurity arose thereby.

The court did not abuse its discretion when it admitted McKeon's booking photograph.

ISSUE TWO

 Whether photographs depicting McKeon with his alleged accomplices, brandishing

firearms, should have been excluded as irrelevant and highly prejudicial.

 Iowa police officers discovered among Debbie Ashley's personal effects three

Polaroid photographs which were ultimately admitted at McKeon's trial. State's exhibit

69 is a photograph of McKeon posing with a shotgun in his hands, and Ashworth posing

with a rifle in his hands. On the back of the photograph are the inscriptions "10/17/94"

"Bubba & my Baby" and "Utah." State's exhibit 70 is a photograph of Ashley and

McKeon standing closely together, McKeon's arm around Ashley's shoulder. On the

back of the photograph are the inscriptions "10/17/94" "Me and my Baby" and "Utah." 

State's exhibit 71 is a photograph of Ashley and Ashworth, on the back of which are the

inscriptions "10/17/94" "Me and Bubba" and "Utah."

 McKeon contends that the photographs should not have been admitted, as they are

irrelevant to the issue of the identity of robber #1, unnecessary cumulative evidence, and

prejudicial. McKeon asserts that State's exhibit 71, the photograph of Ashley and

Ashworth, is irrelevant to the ultimate issue at trial, whether McKeon is robber #1. 

McKeon argues that the other two photographs are cumulative evidence of McKeon's

identity in light of the testimony of the arresting officer and the Iowa booking

photograph, both of which establish McKeon's identity near the time of the robbery. 

Finally, McKeon claims that State's exhibit 69, the photograph of McKeon and Ashworth

"boastfully" posing with their weapons, is by its very nature unfairly prejudicial.

 We do not agree with McKeon's characterization of the purpose and effect of these

photographs. All three photographs are relevant for the purpose of corroborating portions

of Debbie Ashley's accomplice testimony, in which she described the chain of events

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (4 of 7)4/11/2007 2:37:19 PM
96-330

leading up to and following the Story Exxon robbery. In particular, the photographs

corroborate that she, Ashworth, and McKeon were traveling together around the western

United States in the latter part of 1994, and that she purchased a shotgun for McKeon and

a rifle for Ashworth in Colorado in mid-October, 1994, weapons similar to the sawed-off

shotgun and sawed-off rifle used in the Story Exxon robbery on November 4, 1994.

 We are not swayed by McKeon's argument that because he did not dispute the

portions of Ashley's testimony that these photographs corroborate, and because those

portions of testimony do not address the ultimate issue in the case, the photographs

therefore are not corroborative of anything relevant and should have been excluded. This

argument loses sight of both the fact that McKeon strongly attacked Ashley's credibility

as a witness, and, similarly, that as an accomplice Ashley's testimony was by statute

ineffective if not corroborated. See 46-16-213, MCA. Nor are we convinced that

exhibit 69, the photograph of McKeon and Ashworth brandishing their weapons, is so

prejudicial as to render it inadmissible. As stated, the photograph corroborates Ashley's

testimony that she purchased for the men weapons similar to those used in the robbery. 

Moreover, the photograph is probative of the fact that McKeon and Ashworth had in their

possession approximately three weeks prior to the robbery weapons similar to those used

in the robbery. That the weapons in the picture are not altered in the way that the

robbery weapons were does not render the photograph irrelevant, especially when

considered in conjunction with other pertinent evidence in the case, namely the hacksaw

blade found in the black Ford pick-up truck. The probative value of this photograph

outweighs any possible prejudicial effect. 

 The State's corroboration of Ashley's testimony was both necessary and prudent,

and the Polaroid photographs were properly admitted for that purpose. The court did not

abuse its discretion.

ISSUE THREE

 Whether the prosecution should have been permitted to elicit testimony from the

arresting officer speculating as to the most direct route McKeon may have traveled from

Montana to Iowa.

 At trial the State questioned Iowa Police Trooper Stoner about two receipts he

discovered pursuant to a search of the black pick-up after it had been impounded. Officer

Stoner explained that he found a receipt dated November 5 from the Thrifty Motor Inn

in Rapid City, South Dakota, and a receipt dated November 6, 1994, from Sunshine

Foods in Sioux Falls, South Dakota. Officer Stoner then was asked to describe the most

direct route from Bozeman to Eldora, Iowa, where McKeon was arrested. In describing

this route, Trooper Stoner used as mileposts Gillette, Wyoming; Rapid City, South

Dakota; and Sioux Falls, South Dakota. McKeon contends that this testimony was

improper because it allowed the jury "to indulge in improper speculation and guesswork." 

Kuiper v. Goodyear Tire & Rubber Co. (1983), 207 Mont. 37, 53, 673 P.2d 1208, 1217. 

McKeon argues that in admitting this testimony, the court committed reversible error.

 We agree that Trooper Stoner's "direct route" testimony was improper, but do not

agree that in allowing the testimony, the court committed reversible error. Officer Stoner

had no personal knowledge of the route McKeon had traveled prior to his arrest in Iowa,

and, while he did not expressly state that McKeon followed the direct route from

Montana to Iowa, the implication is clear. The description of the route, along with the

receipts from two towns along the route, would together promote improper juror

speculation as to where McKeon had been prior to his arrest in Iowa.

 However, McKeon has failed to demonstrate how the admission of this testimony

requires that we reverse. "The test of prejudicial error requiring reversal is this: Is there

a reasonable possibility that the inadmissible evidence might have contributed to the

conviction?" Gray, 659 P.2d at 257 (citation omitted). The prejudice McKeon alleges

resulted from the testimony is that the jury could, through sheer speculation, follow the

"direct route" backwards from Eldora, Iowa to Bozeman, placing McKeon at the site of

the robbery. However, McKeon fails to consider the other evidence properly admitted

at trial which is probative of both his involvement in the Story Exxon robbery and his

travel route from Bozeman to Eldora: testimony from Bozeman resident Mark Bissell that

he saw a black Ford Courier pick-up with three occupants circle around and then park

in the Story Exxon parking lot mid-morning on November 5, 1994; testimony from

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (5 of 7)4/11/2007 2:37:19 PM
96-330

Trooper Pearson that McKeon was driving a black Ford Courier pick-up when he was

arrested in Iowa; the clerk's description of the robbers, corroborated by the physical

evidence recovered in Wyoming and Iowa; and, Ashley's account of the robbery and her

subsequent travels with McKeon and Ashworth to Wyoming, then with McKeon only on

to Iowa. In light of the other evidence placing McKeon in Bozeman on November 5,

1994, the court's erroneous admission of Trooper Stoner's "direct route" testimony did

not unfairly prejudice McKeon, did not contribute to his conviction, and is not cause for

reversal.

ISSUE FOUR

 Whether testimony identifying McKeon's vehicle as a stolen vehicle should have

been excluded as "other crimes" evidence.

 At trial, the State elicited testimony from Trooper Pearson that when he pulled

McKeon over for speeding in Iowa and subsequently "ran a check" on the pick-up's

license plate, he learned that the truck was reported as stolen. McKeon argues that this

testimony was admitted in violation of the rule prohibiting "other crimes" evidence. See

State v. Matt (1991), 249 Mont. 136, 814 P.2d 52; see also Rule 404(b), M.R.Evid.

 The State contends, however, that at trial McKeon did not enter a specific

objection to this testimony, and therefore improperly raises this issue on appeal. Citing

Rule 103 (a)(1), M.R.Evid., and State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d

1096, 1098, the State argues that a defendant is required to "object in a timely manner

and state the specific ground unless the specific ground was apparent from the context." 

While McKeon did object at trial, the State claims that this objection was not specific,

nor was the specific ground for the objection apparent from the context.

 The relevant testimony involved the Gallatin County Attorney's questioning of

Trooper Pearson about his, Pearson's, actions upon stopping McKeon for speeding. The

County Attorney asked Trooper Pearson after Pearson explained that McKeon gave him

false identification:

 Q: And what happened then?

 A: Then I called in to dispatch my location and I gave them the plate that was

on the Ford Courier.

 Q: What do you mean, you gave them the plate that was on the Ford Courier?

 A: I told them the vehicle I was out with, and I gave them the plate numbers

so they could run it to find out if it would be stolen or who it came back to, what kind

of vehicle it came back to.

 Q: And did you receive that information from your radio dispatch?

 A: I did.

 [Defense Counsel]: Objection, Your Honor.

 THE COURT: Overruled.

 [County Attorney]: You may answer.

 Q: Did you receive that information?

 A: I did.

 Q: And what information did you receive?

 A: I received that it was a stolen vehicle.

McKeon's objection was generic, not specific. Moreover, we are not convinced that

when this dialogue took place, the specific grounds for McKeon's objection were apparent

either to the court or to the county attorney. "Before the trial court will be put in error

it must be given a chance to correct itself." State v. Walker (1966), 148 Mont. 216, 223,

419 P.2d 300, 304. Similarly, the party offering the evidence should be given an

opportunity to make an offer of proof or rephrase his questions to explain, contest, or

avoid the purported error. McKeon's nonspecific objection toTrooper Pearson's

testimony was insufficient for purposes of appeal, and we therefore will not consider the

merits of this issue.

ISSUE FIVE

 Whether the "cumulative error doctrine" as applied to the above-cited errors

warrants a finding of reversible error.

 McKeon contends that his allegations of court error, in the aggregate, were so

prejudicial as to warrant reversal. However, we have determined that the only court

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (6 of 7)4/11/2007 2:37:19 PM
96-330

error here was in allowing the speculative "direct route" testimony, and that the error was

not prejudicial. McKeon's "cumulative error" argument is therefore inapplicable and we

need not address it.

CONCLUSION

 The District Court did not abuse its discretion in making the evidentiary rulings

at issue here. McKeon has made no showing of prejudice. The evidence of his guilt is

overwhelming. Therefore, we affirm the decision of the District Court.

 Affirmed.

 /S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-330%20Opinion.htm (7 of 7)4/11/2007 2:37:19 PM