No. 90-255 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

JOHN ED GAMBREL, JR., 

Defendant and Appellant. 

DEC B 8 1998 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Don Vernay, Esq., Kalispell, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; Paul D. 

Johnson, Assistant~ttorney General; Helena, Montana 

Ted 0. Lympus, County Attorney, Kalispell, Montana 

Filed: 

Submitted on Briefs: November 15, 1990 

Decided: December 18, 1990 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

John Ed Gambrel, Jr., was convicted of deliberate homicide 

following a jury trial in the District Court for the Eleventh 

Judicial District, Flathead County. He appeals. We affirm. 

The issues are: 

1. Did the District Court err in denying the defendant's 

motion in limine and admitting into evidence the testimony of Alane 

Shuster, Shelly Birky, and Kathryn Jinx Kinslow? 

2. Did the court err in denying the defendant's motions for 

a mistrial? 

3. Did the court err in denying the defendant's motion for 

a new trial? 

Defendant John Ed Gambrel, Jr., stands convicted of the 

February 5, 1989, murder of Lori Anne Schwegel in Whitefish, 

Montana. Following a report of a shooting shortly after 2 a.m. on 

that date, police officers discovered Schwegel's body in the 

apartment she had shared with Gambrel. She had been shot three 

times in the chest, once in the right hand, once in the left cheek, 

and once in the right leg. Her body was lying on the living room 

floor next to a rifle and rifle case later determined to be 

Gambrel's. Twelve spent shell casings were recovered from the 

living room, and two bullets were embedded in the ceiling. The 

front door of the apartment was ajar. There was no sign of forced 

entry or struggle. 
Gambrel, suffering obvious head wounds, arrived at the 

apartment minutes later. He was transported to a hospital by 

ambulance, during which time he spoke a lot of gibberish and said, 

"help us, help us, " ''help Lori, " "them coke son-of -a-bitches, and 

also ''1 didn't mean to hurt her." 

Gambrel claims that he and Schwegel were attacked by an 

unidentified third party. At trial, he testified that after a 

night on the town, he was knocked unconscious as he entered the 

apartment he and Schwegel shared. Gambrel testified that when he 

regained consciousness, he was lying across the body of Schwegel, 

who had stayed home that evening. He testified that he realized 

he had been shot and went to the apartment of his upstairs 

neighbor, who summoned the police. 

Gambrel's upstairs neighbor, Stuart McQuade, testified that 

he arrived home at about 2:00 a.m. He stated that he heard three 

ltbangsll just before Gambrel came to his door for assistance. He 

stated that he did not see anyone around the apartments and, other 

than the three "bangs,I1 did not hear anything, although according 

to him the apartment walls were thin. 

Gambrel hypothesized that he and Schwegel had been shot on the 

orders of Ben Sagen, at whose home he had at one time stayed. He 

claimed that Sagen had a contract out on his life. Sagen denied 

that. Sagen testified that Gambrel did owe him money and that he 

had threatened to contract with a collection agency to recover it. 
Gambrel talked to a group of police officers on his way home 

about 2:00 a.m. One of those officers characterized Gambrel's 

behavior at that time as "acting quite different. The State's 

theory is that Gambrel spent several hours downtown, went home and 

shot and killed Schwegel, returned to the bars, then talked to the 

officers in an attempt to establish an alibi before he again 

returned home and shot himself. 

Gambrel had suffered two gunshot wounds. One was a grazing 

soft tissue injury to the chin. The other bullet entered under 

his chin, passed through the floor of his mouth, palate, nose and 

sinus, and exited between his eyes on the forehead. Two doctors 

testified at trial that Gambrel s injuries were consistent with 

self-inflicted gunshot wounds. Sagen testified that Gambrel had 

once bragged to him that he had been to a mercenary school where 

he had learned how to shoot people without killing them. The 

doctors did not find any injury to the back of Gambrel's head from 

being knocked unconscious. Also, Gambrel could not explain why his 

jacket was found neatly folded on the sofa in the apartment. 

Gambrel had been seen at various downtown Whitefish bars all 

evening on February 4-5 except for a period of about an hour 

beginning at 10 or 11 p.m. Witnesses testified that Gambrel was 

"very intoxicated1' and "scary,11 and that he said he was planning 

to leave Schwegel and was angry with her. Gambrel denied making 
those statements and testified that he and Schwegel were very happy 

together. 

Over the defense's objection, the State presented testimony 

of three women with whom Gambrel had lived at various times. Alane 

Shuster testified about incidents in which Gambrel had physically 

abused her, culminating on Christmas Eve 1984. She stated that 

after they ate dinner, Gambrel tied her, naked and under protest, 

spread-eagle to a bed, then stuffed cut-up pieces of potato into 

her vagina. She testified that he watched her cry and beg him to 

stop for about ten minutes, then went to sleep on the couch, 

leaving her tied up. She later freed herself, but did not tell 

anyone about the incident because she was humiliated and embarrassed. 

The second woman, Shelly Birky, testified that she allowed 

Gambrel to use a room in her apartment during the fall of 1986. 

She testified that she awoke at 5:30 a.m. on Christmas morning to 

find him on top of her having intercourse. She testified that as 

she tried to get away, he slammed her against walls, hit her, and 

repeated, "I will kill you; I will kill you; I will kill you." She 

testified that she reported the incident to the police. 

Kathryn Jinx Kinslow testified about a Halloween 1987 incident 

in which Gambrel chased her around her apartment and slapped her, 

then slashed her waterbed. She testified that he told her, "I am 

going to kill you, you are a dead woman, you are not going to be 
alive tomorrow morning. Don't even bother going to sleep, because 

you are not going to live through to morning. You are not even 

worth living. I am going to take a knife and slit you from your 

cunt all the way up." Kinslow filed a police report. 

All three women were extensively cross-examined. Gambrel 

denied making any of the threatening statements and, aside from 

admitting that he had an argument with Kinslow on Halloween of 

1987, denied that any of these incidents occurred. 

Gambrel was found guilty of deliberate homicide and was 

sentenced to 100 years in prison plus 10 years for use of a 

dangerous weapon. 

Did the District Court err in denying the defendant's motion 

in limine and admitting into evidence the testimony of Alane 

Shuster, Shelly Birky, and Kathryn Jinx Kinslow? 

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, this 

Court set out specific requirements which must be met before 

evidence of other crimes, wrongs, or acts will be admissible under 

Rule 404(b), M.R.Evid. The requirements are: 

1. Similarity of crimes or acts; and 

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. 
I Just 602 P.2d at 961. In addition, the State must give the 

defense advance notice of its intent to use such evidence and the 

jury must be admonished that the purpose of the evidence is 

limited. Just, 602 P.2d at 963-64. 

In this case, the State gave pretrial notice of its intent to 

present the testimony of four women (one did not appear at trial). 

The defense made a motion in limine to prevent the women from 

testifying. After reviewing the women's written statements and 

hearing oral argument on the motion, the court ruled that the commonality among the offered testimony was 

being females who have cohabitated with Defendant for significant periods of time and have 

been physically attacked, to varying degrees, 

by the Defendant while he was in a state of 

intoxication. They have also been subjected 

to threats of further harm or death by the 

Defendant while he was in an apparent alcoholic rage. 

The court also ruled that the acts were not so remote in time as 

to be irrelevant or immaterial, that they were sufficiently similar 

as violent acts, and that their probative value outweighed their 

prejudicial effect. It denied the defendant's motion in limine. 

The defense again argues here that the other acts disclosed in the 

testimony of the three women were not similar to deliberate 

homicide, were too remote in time, did not establish a common 

scheme, plan, or system, and were prejudicial beyond their probative value. 
The defense argues that, in particular, testimony about 

Gambrel's previous "bizarre sexual behavior1' is not similar to the 

crime charged here. Gambrel's act of tying up an unwilling Shuster 

and stuffing potatoes into her vagina, then leaving her in that 

state while he fell asleep on the couch, did involve sexual organs 

and may thus be described as ''bizarre sexual behavior.'' However, 

that act, like rape, is more accurately characterized as violent 

or sadistic than as sexual behavior. Like the violence against 

Schwegel, it was apparently unprovoked and occurred after Gambrel 

had been drinking. It is not true, as the defense argues, that the 

acts must have been perpetrated against the same victim to be 

similar. See State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136. 

We conclude that the violent behavior against Shuster, especially 

when looked at in combination with the testimony of the other 

women, is sufficiently similar to the violent behavior of shooting 

Schwegel to have been admissible into evidence. 

Similarly, we conclude that the rape of the sleeping Birky 

followed by death threats against her and the slapping, property 

destruction, and death threats against Kinslow are sufficiently 

similar to the crime charged here. We agree with the District 

Court that the similarities are in the nature of Gambrel's relationships with the victims, that he had been drinking before each 

incident, and that he was violent and/or threatened deadly violence 

each time. 
The acts about which the three women testified occurred 

between two and four years before Schwegel was killed. This Court 

has allowed evidence of events which occurred nine years prior to 

the charged acts, when "there is a continuing pattern of similar 

conduct. " Tecca, 714 P. 2d at 139. Here, there was a continuing 

pattern of violence against the women with whom Gambrel was living. 

We conclude that the acts were not too remote in time to be admissible into evidence. 

We next address the presence of a common scheme, plan, or 

system. The evidence shows a common system of violence, after 

Gambrel had been drinking and directed against his partners, 

including death threats, sexual assaults, beatings, and murder. 

As in Tecca, Ifwe find the number and similarity of incidents tends 

to establish a common scheme or plan under the third prong of the 

Just test." Tecca, 714 P.2d at 139. 

Finally, we consider whether the "other crimesn evidence was 

prejudicial beyond its probative value. In a different case, 

testimony about the acts disclosed by the three women might be too 

prejudicial. Here, Gambrel was charged with deliberate homicide. 

The prejudicial effect of the testimony against him must be viewed 

in light of the seriousness of that charge. Further, the probative 

value of the testimony by the three women must be viewed in light 

of the absence of any eyewitnesses to this crime. We conclude 
that the District Court was correct in ruling that the probative 

value of the testimony outweighed its prejudicial effect. 

After considering the four Just factors, we conclude that the 

State has met its burden. We hold that the District Court did not 

err in denying the motion in limine. 

I1 

Did the court err in denying the defendant's motions for a 

mistrial? 

Defendant moved for a mistrial at the conclusion of each of 

the three women's testimony. At the conclusion of Shuster's 

testimony, he cited her statements that he was a thief, that he was 

obsessed by Rambo movies, and that she had to bail him out of jail 

for an unrelated matter. The defense did not object to any of this 

testimony at the time it was given. The testimony was nonresponsive to the questions asked by the State's attorney, who quickly 

interrupted the testimony about thievery. 

The reason for the motion for a mistrial at the conclusion of 

Birkyls testimony was that she had stated that Gambrel was a thief 

and that he was banned from certain bars. Following a defense 

objection, the court gave a curative instruction as to the thief 

testimony. The State's attorney interrupted the ''banned at bars1' 

testimony before the witness could complete her statement. 

The defense moved for a mistrial at the conclusion of 

Kinslow's testimony because she stated that Gambrel had agreed to 
get counseling for drug and alcohol problems. No objection was 

made at the time this testimony was given. 

Our standard of review of a denial of a motion for mistrial 

is evidence that is llclear, convincing, and practically free from 

doubt, of the error of the trial court's ruling." State v. Counts 

(1984), 209 Mont. 242, 247-48, 679 P.2d 1245, 1248 (citation 

omitted). We conclude that this standard has not been met. The 

court did not err in denying the motions for mistrial. 

I11 

Did the court err in denying the defendant's motion for a new 

trial? 

Gambrel's motion for a new trial was based on the same 

arguments he used in his motion in limine and in his motions for 

mistrial. He also cited State v. Heinrich (Mont. 1990), 788 P.2d 

1346, 47 St.Rep. 314, modified, 794 P.2d 696, which had just been 

decided. 

Heinrich was originally charged with assault and criminal 

possession of dangerous drugs, both felonies. The State gave 

notice, as required under Just, of its intent to introduce evidence 

of other crimes, namely a previous guilty plea to possession of 

dangerous drugs, a previous conviction of the offense of intimidation, and evidence concerning a seizure of dangerous drugs from 

Heinrich's trailer. Before trial, Heinrich entered a guilty plea 

to the charge of possession of dangerous drugs. Therefore, he was 
tried only on the assault charge. However, the trial court let in 

the other crimes evidence. This Court held that none of the 

evidence of other crimes should have been admitted because it was 

not related or similar and was too remote in time. Heinrich, 788 

P.2d at 1350-51. 

The defense argues that this Court's opinion in Heinrich 

renders the admission of the testimony of the three women inadmissible in this case. We disagree. The two cases are obviously 

factually distinguishable, and the Just factors are fact-dependent. 

Granting or denying a motion for new trial is within the 

discretion of the trial court. Section 46-16-702(1), MCA; State 

v. Brush (1987), 228 Mont. 247, 252, 741 P.2d 1333, 1336. For the 

reasons discussed above under Issues I and 11, we hold that the 

District Court did not abuse its discretion in denying the motion 

for a new trial in this case. 

Affirmed. 

We concur: 
Justice R. C. McDonough dissents. 

The fourth requirement of the Just rule (See State v. Just 

(1979), 184 Mont. 262, 602 P.2d 957) relative to the admissibility 

of evidence of other crimes, wrongs or acts has by the majority 

opinion lost practically all of its usefulness. Such requirement 

is as follows: 'Ithe probative value of the evidence is not 

substantially outweighed by the prejudice to the defendant." Just, 

602 P.2d at 961. 

Here the defendant was charged with deliberate homicide of the 

woman he lived with by shooting her five times with a rifle. It is 

the relationship of this charge with the testimony of the witnesses 

Alana Shuster, Shelly Birky, and Katherine Jinx Kinslow which is 

in question. 

Their testimony relative to the other requirements of Just is 

questionable; for example, similarity of crime or acts. However, 

allowing Alana Shuster to testify to the defendant's placement of 

the potatoes, a sexually perverted attack, is practically a 

guarantee of the criminality of the defendant's character, his 

loathsomeness and his fitness for conviction of the crime charged. 

The same can be said of the testimony of Shelly Birky as to the act 

of rape. The testimony as to such physical assaults on Ms. Shuster 

and Birky, should have been at the very least limited in detail to 

lessen the extreme prejudicial effect. Evidence admitted under the 

Just rule is by its nature somewhat prejudicial and should be 

carefully weighed as to its probative value. In essence Rule 

404(b), provides that evidence of other crimes, wrongs or acts is 
not admissible to show charaqter of a defendant. The reason for 

this rule is that the jury should judge the defendant on the facts 

and law relevant to the actual crime charged and not on his 

character traits or that he is a "bad man." I would reverse and 

remand for a new trial. 

Justice Wm. E. Hunt, Sr. and Justice John C. Sheehy concur in 

the foregoing dissent. 

Justlces