NO. 87-92 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSTEVEN WAYNE KEEFE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith argued, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seeley argued, Asst. Atty. General, Helena 

Patrick L. Paul, County Attorney, Great Falls, Montana 

Submitted: 10, 1988 

Decided: June 13, 1988 

Filed: kULUN 2 3 I988 

. . 

Ir - F;ZL *, dA&d 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Steven Wayne Keefe appeals his conviction for 

three counts of deliberate homicide, 5 45-5-102(1) (a), MCA, 

and one count of burglary, S 45-6-204(1), MCA. The Eighth 

Judicial District Court in and for Cascade County, the Hon. 

Thomas McKittrick presiding, sentenced Keefe to three terms 

of life imprisonment (to be served consecutively), ten years 

for burglary, four ten-year terms for the use of a weapon in 

the offenses and designated him a dangerous offender not 

eligible for parole. Keefe asserts only one issue on this 

appeal: Was evidence of Keefe's other crimes, wrongs and 

acts properly admitted under Rule 404 (b) , M. R.Evid., before 

the State presented evidence of the crime charged? We 

affirm. 

Keefe was charged on March 21, 1986, with the 

deliberate homicides of Dr. David McKay, a Great Falls 

opthamologist, his wife, Constance McKay, and their 

40-year-old daughter, Dr. Marian McKay Qamar, a Seattle, 

Washington, pediatrician, at the McKay home three miles south 

of Great Falls, Montana, on October 15, 1985. The complaint 

was amended on June 10, 1986 to include a charge that Keefe 

had stolen Constance McKay's purse from the McKay home on the 

day of the homicides. After a hearing in Youth Court, Keefe 

was bound over to District Court for trial as an adult. He 

pled not guilty to all charges. 

Keefe argues that his right to a fair trial on these 

charges was compromised when the State began its 

case-in-chief with evidence of other burglaries committed by 

Keefe that were not charged in this complaint. as amended. He 

contends that such unrelated evidence led the jury to 

overestimate the probative value of the evidence of burglary 
at the McKay home and also established him in the eyes of the 

jurors as an evil man deserving punishment. 

There is no argument that the McKays and Dr. Qamar died 

as a result of criminal acts. The controlling question is 

whether the State established, prima facie, that Keefe 

committed these criminal acts. Because there are no 

witnesses except perhaps a 3-year-old child, no fingerprints, 

and no confession other than two admissions made to fellow 

residents at Pine Hills School for Boys, the State was 

obligated to proceed with circumstantial evidence. Key 

pieces in this puzzle of circumstances were that Keefe had a 

history in Lewis and Clark County of similar and repeated 

burglaries and that at a burglary less than two weeks 

previous, a .44 magnum Ruger Redhawk revolver and ammunition 

were stolen. The F.B.I. later linked this weapon to the 

ballistics of two of the fatal shots in the McKay home. The 

F.B.I. expert said he could not be positive that the other 

fatal shot was fired by the gun. It was this gun that Keefe 

asked a friend to pawn for him on October 16, 1985, the day 

after the McKay homicides. The gun was recovered by the 

Cascade County sheriff at the pawnshop on March 4, 1986. 

The record demonstrates that there is more than 

sufficient evidence --albeit circumstantial evidence-- to 

support this verdict and judgment. Circumstantial evidence 

is not necessarily inferior in quality and, in fact, often is 

most convincing and satisfactory. Any evidence that is 

material, relevant and competent will- be admitted in a 

criminal trial. If the facts and circumstances are of such 

quality and quantity as to legally justify a jury in 

determining guilt beyond a reasonable doubt, the court must 

accept the verdict of the jury. State v. Cor (1964) , 1-44 

Mont. 333, 326-27, 396 P.2d 86, 88-89, citing State v. 
Espelin (1938), 106 Mont. 231, 76 P.2d 629; State v. 

DeTonancour (1941), 112 Mont. 94, 112 P.2d 1065. 

We must then examine the record to determine what are 

the known facts regarding the McKay and Qamar homicides and 

the circumstances concerning Keefe, which when tied together, 

lead to the conclusion that Keefe was at the McKay home on 

the afternoon of the homicides and, in fact, committed the 

homicides. 

Joseph McXay, the son of David and Constance McKay, 

arrived at his parents' home for a family dinner at about 

5:15 p.m. October 15, 1985. His sister, Marian Qamar, and 

her 3-year-old daughter, Monya, had flown in for a visit 

earlier that day. Another sister, Octavia McKay Joyner, had 

greeted the Qamars and had left them at the McKay home at 

about 2:30 p.m. Joseph McKay entered through an unlocked 

ground-level door, which opens into the family room. He 

noticed that a pot of potatoes was burning on the stove in 

the kitchenette at the rear of the room. He testified that 

he removed the pot from the stove's burner, and then turned 

to a hallway, which led to the laundry room on the left, to 

the garage and a root cellar at the end, and to a staircase 

to the main floor on the right. 

As he entered this hallway, Joseph McKay testified that 

he found his mother lying on the floor in a pool of blood and 

realized that she was dead. When he stood up to alert the 

rest of the family he saw Marian Qamar also lying in the hall 

and apparently dead. He returned to the family room to call 

authorities just as his sister, Octavia, and her husband, Don 

Joyner, drove up to the house. He urged them to keep their 

children outside and allowed Don Joyner, who is a practicinq 

physician, into the house. Dr. Joyner checked for a pulse on 

Marian Qamar. He could find none and determined that both 

women were dead. Sheriff's dispatchers who received Joseph 
McKay's call told him to exit the house and dispatched 

deputies immediately. Joseph McKay and Dr. Joyner left the 

house without climbing the stairs to the main floor. 

Sheriff's deputies arrived within minutes and were told 

of the two bodies on the lower floor and that Dr. McKay and 

Monya Qamar were unaccounted for. The deputies entered the 

house through the ground-level door Joseph McKay had used, 

stepped past the bodies of the two women and came to the base 

of the stairs leading to the upper floor. Here they noticed 

six empty shell casings lying on the rug. They stepped over 

these casings and climbed six steps to a landing that faces 

the main door to the house and another six steps from this 

landing to the main floor. As the deputies proceeded through 

the dining area they noticed Dr. McKay lying dead in the 

adjacent kitchen. The deputies then checked the bedroom and 

found Monya Qamar sleeping in one of the beds. One of the 

deputies picked the girl up and carried her down one flight 

of stairs to the main door and attempted to open the main 

door but had to move a heavy rug that had been pushed up 

against the bottom of the door. 

Deputy Jim Bruckner, one of the first sheriff's 

deputies on the scene, bras qualified at trial as a police 

expert on crime reconstruction. He testified that the 

investigation indicates that Dr. McKay, who was shot once in 

the back of the head from the left, was the first victim 

shot. There were wine glasses laid out on a counter in front 

of the body and a wine glass lay broken in his hand. This, he 

said, shows Dr. McKay was unaware of any danger when he was 

shot. Investigators theorize that Dr. Qamar came to 

investigate the noise in the kitchen, saw the killer, turned, 

and was shot at five times as she fled down the two flights 

of stairs. She may have tried to open the main door, hut was 

prevented from doing so because the rug stopped the door. As 
she got to the hallway at the gound-level she was struck by a 

bullet in the back and also by one that tore through her 

right ankle, and fell either dead or dying in the hallway. 

Three bullets were located in the walls adjacent to the 

staircase. The gunman emptied the chamber of the weapon used 

to kill the victims at the base of the stairs and reloaded. 

Constance McKay then entered the home from the concrete root 

cellar adjacent to the garage to find her daughter lying on 

the hall floor. As she knelt to attend to her daughter, the 

gunman stepped out and fired a shot into the left side of 

Mrs. McKay who reeled and fell twenty feet away. Another 

shot was fired at Constance McKay but missed her and lodged 

in a baseboard heater. In total, eight .44 magnum rounds 

were fired in the McKay house. 

Upon completion of autopsies, the Cascade County deputy 

coroner set the time of death as approximately 4:30 p.m. 

While preliminary investigations revealed no other crime had 

occurred in the house, deputies later found a pile of coins 

on a dirt road near the house and family members subsequently 

determined the purse belonging to Constance McKay was missing 

from the McKay home. The purse never has been found. 

Keefe was seventeen years old at the time of the 

homicides. At the time, Lewis and Clark County law officers 

suspected his involvement in four recent burglaries, at one 

of which a .44 magnum Ruger Redhawk revolver was stolen. 

Keefe travelled to Great Falls on October 10, ostensibly to 

seek employment at a new Buttrey's supermarket; he stayed the 

weekend with several acquaintances and showed the .44 

revolver to his roommates and several of their friends. 

The day after the McKay homicides, Keefe requested that 

a roommate who was of legal age, Michael Hayashi, assist him 

in pawning a portable radio/stereo stolen from one of the 

recent Helena burglaries and later the .44 magnum Ruger 
Redhawk. Keefe had Hayashi pawn the .44 magnum Ruger Redhawk 

revolver, the weapon used to kill the victims, for $75 

because he said he needed the money for a trip to Helena, 

even though a second roomate, Toby Scott Yadon, a day or two 

before the victims were killed, offered him $250 for that 

same .44 magnum Ruger Redhawk revolver. Keefe had refused 

this offer because he had said he wanted more money for the 

revolver. The items, thus, were placed in hock on October 

16, 1985 at a Great Falls pawnshop. Later that same day, 

Keefe was detained by the Great Falls police on a Lewis and 

Clark County court order and held for Helena authorities who 

transferred him back to Pine Hills School for Boys because of 

his recent burglaries. 

It was during this confinement at Pine Hills that Keefe 

told of the McKay homicides to other residents. One resident 

testified that he and Keefe had been discussing burglaries 

when Keefe admitted that he also had killed people. This 

witness testified that Keefe said he had left a party and 

gone to a lady's house and that when the lady had come out of 

the kitchen he shot her and that when two people came down 

stairs to investigate he shot them also. The witness 

testified that Keefe said the lady was named Constance; the 

witness also testified he had not heard of the McKay 

homicides before his discussion with Keefe. 

A second resident testified that in mid-November, 1985, 

he and Keefe were alone in a music room when Keefe related 

that he had shot and killed three people while burglarizing a 

home near Great Falls. The witness testified that Keefe said 

he had broken in through sliding glass doors and killed Dr. 

McKay when he came to investigate and then shot the two women 

when they came down to investigate. This witness testified 

that he did not reveal this conversation until after Keefe's 

arrest. 
When trial commenced in Cascade County District Court 

on October 16, 1986, the State began its case-in-chief by 

calling twenty-six witnesses who testified as to five 

burglaries or attempted burglaries attributed to Keefe. 

Defense objected to this practice claiming that it was 

inherently prejudicial since it presumed that these crimes 

were sufficiently similar to the McKay crime to be introduced 

under Rule 404(b), M.R.Evid. To cure any potential defect 

the State filed a sealed affidavit with the court one week 

before trial setting out what this evidence would prove. The 

actual testimony of these witnesses demonstrated that: 

*On July 22, 1985, between the hours of midnight and 8 

a.m., somebody entered the Helena valley home of Arlene Wall 

while she slept and removed her purse and camera. No harm 

was done to anyone. Mrs. Wall's keys and credit cards were 

surrendered to the Lewis and Clark County authorities by 

Keefe's mother, Mrs. Vera Parmer. 

*On August 3, 1985, Patrick Wall, the son and neighbor 

of Arlene Wall, returned to his home at 2 a.m. to find an 

unknown pickup truck near his home and his home's front door 

broken open. He found that a camera and .22 caliber pistol 

had been stolen. No harm was done to anyone. The pickup was 

later found to be registered to Keefe's mother and the .22 

caliber pistol o7as later found in Keefe's possession. 

*On October 2, 1985, between the hours of 6:45 p.m. and 

10 p.m., the basement window to Ron Garvin's Helena-area home 

was broken and a .44 magnum Ruger Redhawk revolver, four 

boxes of ammunition, and a portable radio/stereo were stolen. 

Keefe's fingerprints were found on the glass of the broken 

window. No harm was done to anyone although a neighbor 

testified he heard gunshots in a field nearby at about this 

time. The F.B.I. specialist testified that this gun, which 

Keefe admitted he showed-off in Great Falls, matched the 
ballistics of two of the fatal shots, and also could have 

fired the third. 

*On October 10, 1985, a daylight burglary occurred at 

the residence of Ray Bell, Mrs. Parmer's employer. Nobody 

was injured in this crime since the house was unoccupied but 

a portable radio/stereo, a camera, and a .38 caliber pistol 

were stolen. Mrs. Parmer testified that she saw the camera 

in Keefe's belongings as he packed for his trip to Great 

Falls and she returned it to Bell. The radio/stereo was 

pawned for Keefe by his friend Michael Hayashi, the same day 

as Garvin's .44 magnum Ruger Redhawk was pawned. 

*At about 9:30 p.m. on October 12, 1985, Dr. Paul 

Wilhelm heard somebody ring the doorbell at his home north of 

Great Falls. He was suspicious because he was expecting no 

company; he checked from windows but could see nobody at the 

door. Dr. Wilhelm then carefully shined a light on a vacant 

hill and fired two shots. He heard a person run away. Dr. 

Wilhelm's home was not entered and nobody was harmed. The 

next day he found footprints near his home which were later 

photographed. F.B.I. specialists later matched these 

photographed footprints to a pair of Keefe's shoes. 

The State called twenty additional witnesses to testify 

about investigation of these other crimes before it 

introduced any evidence of the McKay crime. The District 

Court allowed such evidence to be admitted over strong and 

repeated objections from defense counsel. It ruled less than 

a week before trial that the State could mention the other 

crimes in its opening statement and use the evidence before 

any evidence from the McKay homicides was in. The court 

admonished the jury on three occasions during the 

presentation of this evidence and at the conclusion of the 

trial repeated the admonition as an instruction: 
The State has just offered evidence that 

the defendant at another time engaged in 

other crimes, wrongs or acts. That 

evidence was not admitted to prove the 

character of the defendant in order to 

show he acted in conformity therewith. 

The only purpose of admitting that 

evidence was to show proof of motive, 

opportunity, plan, knowledge, identity, 

absence of mistake or accident. You may 

not use that evidence for any other 

purpose. 

The defendant is not being tried for that 

other crime, wrong or act. He may not be 

convicted for any other offense than that 

charged in this case. For the jury to 

convict the defendant of any other 

offense than that charged in this case 

may result in unjust double punishment of 

the defendant. 

Keefe testified in his own behalf. He admitted to the 

Helena burglaries but claimed he never was at the McKay home. 

On the afternoon of the McKay homicides-burglary, he claimed 

he was applying for a job at Buttrey's, returning rented 

video-cassettes, and having a key made for the residence at 

which he was living. He also said that any of several 

persons he had shown the stolen .44 magnum Ruger Redhawk 

revolver knew where he kept it. He claimed the other Pine 

Hills residents had lied when they said he had admitted to 

the killings. Keefe called no other witnesses. 

The jury convicted Keefe of all counts on October 22, 

1986. 

It is against this backdrop of factual and 

circumstantial evidence that we must determine whether the 

District Court properly allowed evidence of the other crimes 

to be introduced under Rule 404 (b) , M.R.Evid., which states: 
Character evidence not admissible to 

prove conduct, exceptGs; other crimes; 

character - in issue. 

(b) Other crimes, wrongs, acts. 

Evidence of other crimes, wrongs, or acts 

is not admissible to prove the character 

of a person in order to show that he 

acted in conformity therewith. It may, 

however, be admissible for other 

purposes, such as proof of motive, 

opportunity, intent, preparation, plan, 

knowledge, identity, or absence of 

mistake or accident. 

This Court established the rules for use of evidence of 

other crimes and wrongful acts in State v. Just (1979), 184 

Mont. 262, 602 P.2d 957, citing State v. Jensen (1969), 153 

Mont. 233, 455 P.2d 631. In order to introduce evidence of 

other crimes or wrongful acts, the State must demonstrate 

four substantive factors: (1) that the other crimes or 

wrongful acts are similar; (2) that the other crimes or 

wrongful acts are not remote in time; (3) that the other 

crimes or wrongful acts tend to establish a common scheme, 

plan or system; and (4) that the probative value of the other 

crimes or wrongful acts is not substantially outweighed by 

their prejudice to the defendant. Just, 602 P.2d at 961. It 

is this fourth element that is most significant in this case 

since Keefe argues on appeal that the State's use of other 

crimes and wrongful conduct before evidence from the McKay 

homicides was presented prejudiced his case. Fle have 

recognized that " [elvidence of other acts, . . . invariably 

will result in prejudice to the defendant to a certain 

degree." Just, 602 P.2d at 961. 

Prejudice in cases such as this manifests 

itself in three forms. First, proof of 

other offenses subjects a defendant to 
surprise by requiring [him] to defend 

against a crime not charged. . . Second, 

the jury might overestimate the probative 

value of the evidence and assume that 

merely because the defendant has 

committed crimes before, he is likely to 

be guilty of the crime charged. . . Third, the evidence may indicate to the 

jury that the defendant is a proper 

candidate for punishment . . . (Citations 

omitted. ) 

State v. Hansen (1980), 187 Mont. 91, 99, 608 P.2d 1083, 

To cure the problem of such undue prejudice outweighing 

the probative value of the evidence, the Just test 

incorporates three procedural requirements. First the State 

must notify the defendant prior to trial that evidence of 

other crimes or wrongful acts will be introduced and indicate 

the purpose for the use of such evidence. Just, 602 P.2d at 

963-64. Under the Federal Rule 404(b), which is identical to 

the Montana rule, as many as ten permissible purposes for the 

introduction of prior crimes and acts have been identified. 

These include: 

(2) To prove the existence of a larger 

plan, scheme, or conspiracy, of which the 

crime on trial is a part. This will be 

relevant as showing motive, and hence the 

doing of a criminal act, the identity of 

the actor, or his intention. 

(6) To establish motive. The evidence 

of motive may be probative of the 

identity of the criminal or of malice or 

specific intent. An application of this 

principle permits proof of criminal acts 

of the accused that constitute admissions 

by conduct designed to obstruct justice 

or avoid punishment for a crime, or of 
the crimes that motivated the 

interference with the enforcement of the 

law. 

(9) To prove identity. Although this is 

indisputably one of the ultimate purposes 

for which evidence of other criminal 

conduct will be received, the need to 

prove identity should not be, in itself, 

a ticket to admission. Almost always, 

identity is the inference that flows from 

one or more of the theories just listed 

McCormick on Evidence (1984), 3d Ed., pp. 558-563. 

Second, the District Court must admonish the jury as to 

the limited purposes of the prior crimes and acts evidence, 

and third, the District Court must offer a final instruction 

stating "in unequivocal terms" that the evidence of other 

crimes or acts has limited purposes and that the defendant is 

not on trial for those crimes or acts. Just, 602 P.2d at 

964. 

On June 9, 1986, more than a month before Keefe's 

original trial date and more than four months before Keefe 

eventually went to trial, the Cascade County Attorney's 

office filed notice to Keefe and his attorneys that it would 

introduce "evidence of other crimes, wrongs, or acts . . . for the purposes of proving motive, opportunity, preparation, 

plan, knowledge, and identity . . . I' It listed witnesses 

from the Wilhelm, Garvin, Bell and Patrick Wall incidents, 

among others. The notice was amended on October 7, 1986, one 

week before jury selection began, to include evidence from 

the Arlene Wall residence. It appears the defendant had 

timely and proper notice with adequate time to respond. 
Also present is an admonition to the jury, which the 

court read three times during the introduction of evidence of 

Keefe's other crimes and wrongful conduct. Although the 

State called twenty-six witnesses to testify about these five 

incidents, the three readings of the admonition is sufficient 

under the Just test. In State v. Tecca (Mont. 1986), 714 

P.2d 136, 43 St.Rep. 264, the defendant-appellant argued that 

the jury must be admonished whenever any witness presents 

evidence of other crimes or wrongful acts. No authority was 

presented for that contention and we ruled that Just does not 

require an admonition every time the evidence comes in. 

Tecca, 714 P.2d at 140. 

Neither is the third Just procedural aspect lacking in 

the instant case. The admonition read by the District Court 

and issued again as a final instruction is identical to the 

cautionary instruction used in Tecca, which this Court found 

to be a "proper cautionary instruction meeting the third 

procedural requirement of Just." Tecca, 714 P.2d at 140. 

Because all three procedural requirements of Just have been 

met, we cannot say as a matter of law that the prejudicial 

nature of the other crimes and wrongful acts evidence exceeds 

its probative value. State v. Clausen (Mont. 19871, 740 P.2d 

679, 681, 44 St.Rep. 1308, 1311. The probative value of the 

evidence is determined from the remaining Just factors. 

Because Keefe concedes that none of the incidents were remote 

in time, the remaining two substantive factors, similarity of 

acts and tendency to show common scheme, plan, or system, are 

reviewed. 

Keefe has argued throughout that although the burglary 

of the McKay home and theft of Mrs. McKay's purse might be 

like certain of his acts, a purse is such a common target of 

burglaries that it proves nothing. We note, however, that 

the other crimes and wrongful acts evidence shows that he had 
stepped into Mrs. Wall's home and taken her purse; that he 

had recently committed daytime and early evening burglaries 

at the Bell and Garvin homes; that after the Garvin burglary 

he had fired the .44 magnum he stole; that three days before 

the McKay homicides Keefe was chased away from the Wilhelm 

home by gunshots, and the day after the McKay homicides he 

pawned the gun at a price lower than an outstanding offer to 

buy. 

The prior . . . acts . . . have a 

similarity of inherent probability . . . There is the hand of a plan with an 

ulterior motive carrying out an intent by 

scheme and design of the defendant that 

was a resultant common course of conduct. 

Just, 602 P.2d at 961. Evidence of other crimes or wrongs is 

admissible if it goes to an issue other than the defendant's 

character or disposition to commit a crime. State v. Matson 

(Mont. 1987), 736 P.2d 971, 976, 44 St.Rep. 874, 880. 

Keefe's actions were links in a chain of burglaries that 

culminated at the McKay home. The evidence of other crimes 

and acts was probative and properly admitted as a part of the 

prosecution's case. They demonstrated the existence of a 

common scheme or plan by Keefe to commit burglaries and 

thefts and as such were properly admitted. See, Matson, 736 

P.2d at 976. 

Under Rule 404 (b) , M.R.Evid., the prior crimes and 

wrongs need not be proven beyond a reasonable doubt because 

they are not offered to prove guilt of those other crimes or 

acts. Just, 602 P.2d at 963. Even when the evidence of 

prior crimes or wrongful acts is not sufficiently common or 

related it is admissible if it tends toward the conclusion 

that the defendant is guilty of the crime charged with moral 

certainty and beyond a reasonable doubt. Matson, 736 P.2d at 

977. The evidence of prior crimes rises to the appropriate 
level and is buttressed by Keefe's admissions to the Helena 

crimes. Thus, it demonstrates a common scheme or plan. 

It is within the District Court's discretion to decide 

whether it will permit such evidence into a criminal case. 

Matson. 736 P.2d at 976. The court also has the discretion 

to decide the order of proof. State v. Stever (Mont. 1987) , 

732 P.2d 853, 44 St.Rep. 283. There is a triumvirate of 

responsibility when such evidence comes to be at issue. The 

State cannot expect admission of such evidence routinely 

without a showing of need for the evidence even if the Just 

requirements are met; the defense, on the other hand, cannot 

rely on the general rule of exclusion of such evidence unless 

the Just requirements fail; and the District Court must make 

a conscientious decision on the admissibility of the evidence 

considering all four substantive Just requirements as a 

whole. State v. T.W. (Mont. 1986), 715 P.2d 428, 430-31, 43 

St.Rep. 368, 371-72. 

A review of the record shows that counsel for Keefe and 

for the State argued the question of whether Rule 404(b) 

other crimes and wrongs evidence could precede the State's 

case-in-chief at three separate hearings before the start of 

the trial. Me note that the transcripts show that the 

District Court was reluctant to accept the evidence of other 

crimes and wrongful acts before the State's case-in-chief. 

At the first hearing, the District Judge stated his problem 

succinctly: 

THE COURT: I guess the point I'm making 

is I'm being asked . . . at this time to 

make a ruling [on the admissibility of 

other crimes and wrongs evidence] when 

I'm really in a vacuum. I don't know 

what the facts are on either side. 1 

don't know whether or not the probative 

value outweighs the prejudicial nature of 

the evidence. I don't know whether it's 

relevant. I don't know whether they're 
similar in nature. I don't know whether 

they tend to establish a common scheme, 

plan, or design. 

At the end of the first hearing, the court ruled that 

it was satisfied the Just requirement that notice be given 

had been met. The court said it would allow the other crimes 

and wrongs evidence to be admitted at trial "if the State can 

prove it's relevant and that the probative value outweighs 

the prejudicial value . . . " The court noted that it could 

not address the substantive factors of Just since it did not 

know the State's case and would be receptive to motions to 

exclude certain testimony as irrelevant. 

The second and third hearings occurred in the week 

prior to the trial. At the second hearing, the court stated 

that its decision that the Just notice was in proper form, 

did not mean the evidence contained therein was automatically 

admissible. Accordingly, the court instructed the State to 

alert the court before it presented evidence of other crimes 

so that a hearing could be held outside of the jury's 

presence to determine if that particular piece of evidence is 

relevant. 

The State said it was proceeding in a chronological, 

sequential fashion in order to show "the pattern, the mode, 

and so forth." The defense said it would be impossible to 

effectively argue against pieces of this other crimes 

evidence when presented in this order since the evidence of 

the case-in-chief would not have been presented. 

THE COURT: What you're saying is we 

don't even know what the facts of this 

case are, so how can we compare as to 

whether there is similarity, whether 

there is remoteness in time, whether or 

not any of the facts anywhere remotely 

are connected? And how would I be able 

to determine that not knowing what the 

facts are in the case-in-chief? 
MR. KEITH [defense counsel]: Until the 

witnesses get up and testify we don't 

know anything. The witnesses have to get 

up and testify first. 

THE COURT: The court is going to reserve 

the ruling on the admissibility on these 

items, and I would suggest to the State 

at this time that Mr. Keith has made a 

very valid point . . . 

The State then prepared an affidavit for the court 

outlining the evidence of prior crimes and wrongs. The 

affidavit outlined the testimony the State would elicit from 

the Helena burglary victims, Dr. Wilhelm, and listed other 

witnesses who investigated the crimes or would verify chains 

of custody. The affidavit did not describe the evidence that 

would be introduced from the McKay home. It stated that the 

other crimes and wrongs evidence demonstrates: 

1. Intent, motive, plan, common scheme 

and identity in that defendant 

burglarizes isolated residences in day or 

night time; he acts alon[e]; he likes 

weapons; is not afraid to enter homes 

that may be occupied; and that his plan 

and common scheme over three months was 

to burglarize and steal from these 

isolated residences. Defendant is 

charged with burglary, as well as three 

counts of deliberate homicide. 

2. The crimes are all similar in nature. 

3. The nearness in time is well 

demonstrated by being no longer than 

three months and as soon as 3, 5, and 13 

days prior to October 15, 1985. 

4. The tendency to establish common 

scheme i[s] that there is a continuous 

pattern of behavior which is amply 

demonstrated here. 
5. The probative value outweighs any 

prejudice to defendant in that all the 

evidence points to identity. While 

defendant admits stealing and pawning the 

murder weapon he can still attempt to 

shift blame to his two roommates. 

However, the evidence is overwhelming 

that the crime follows defendant's 

pattern of conduct and not those of his 

roommates. 

In addition, the State cited State v. Powers (1982), 

198 Mont. 289, 645 P.2d 1357, and State v. Riley (1982), 199 

Mont. 413, 649 P.2d 1273, at a third pre-trial hearing as 

authority for presenting evidence of other crimes before the 

case-in-chief. The defense countered that the State was 

using other crimes evidence to create its case-in-chief 

rather than to support it. The court inquired of the 

assistant county attorney: 

THE COURT: [U] nder the normal use of 

404(b) evidence as I understand it, the 

Court can take the proffer of proof that 

I get at a side-bench conference . . . I 

can look at that, and I can compare to 

the case-in-chief that [has] already gone 

in to the Court and gone in front of the 

jury. You're asking me to make a ruling 

in a vacuum. You're asking me to go on 

the basic premise that ev.erything you' re 

offering is going to be admissible. And 

that's the danger. What if the thing is 

not admissible? . . . 

MR. HAGERMAN: Well, Your Honor, in many 

different cases, this type of evidence 

has been argued in motions in limine ... 

THE COURT: Mr. Hagerman, have you ever 

been in a case when 404 (b) evidence went 

in before the case-in-chief? 

MR. HAGERMAN: I personally have not, 

Your Honor. 
THE COURT: I have not either, and I have 

tried many, many cases . . . 

Neither Powers nor Riley states that the prosecution 

may introduce evidence of other crimes or wrongful acts 

before its case-in-chief. Powers stands for the proposition 

that evidence of other persons' acts in disciplining children 

and acts by defendant in disciplining children other than the 

victim may be introduced to show a common design. The 

similarity in discipline methods provided proof of the 

defendants' motive, as well as intent and plan. Powers, 645 

P.2d at 1363. In Riley, this Court noted that the State is 

allowed "to present the entire corpus delecti of the charged 

offense including matters closely related to the offense and 

explanatory of it, even when such evidence discloses crimes 

other than those charged." Riley, 649 P.2d at 1279. While 

Riley says the jury is allowed to view the victim's death in 

the context of prior events, it does not say such evidence is 

automatically permissible if entered chronologically. Riley, 

649 P.2d at 1280. 

The District Court did not err in allowing the 

prosecution to present its evidence in the chronological 

sequence used in this case. 

When a District Court has received an offer of proof, 

as in this case, where the affidavit and arguments have been 

presented by the prosecution for the chronological 

presentation of evidence admissible under the Just standards, 

the District Court has discretion to allow the sequence and 

order of presentation. 

Appellant has argued that the presentation of evidence 

by the prosecution of other crimes and acts prior to the 

entered presentation of evidence of the deliberate homicides 

unduly focused the jury's attention on the other crimes and 

acts for which the defendant was not being tried. 
The transcript reveals that in the opening statements 

of both the prosecution and the defense, there is left no 

doubt that the jury was apprised of the crimes for which the 

defendant was being tried. Timely notice was given to the 

defense on more than one occasion of the chronological order 

of proof to be offered by the prosecution and the defense had 

timely notice and opportunity to argue in opposition to this 

proposal. The District Court carefully heard and considered 

the prosecution's proposal and the defense's opposition, 

which included the offer of proof presented by the 

prosecution. 

Section 46-16-401, MCA, provides for the order of trial 

in criminal cases and requires that the county attorney must 

state the case and offer evidence in support of the 

prosecution. Section 46-16-402, MCA, states: "When the 

state of the pleading requires it or -- in any other case -- for 

good reason --- and in the discretion of -- the court, the order 

prescribed in 46-16-401 may be departed from." (Emphasis 

added. ) 

Further, Rule 611 (a) (1) , M. R.Evid., provides: 

- Mode - and order of interrogation and 

presentation; re-examination and recall; 

confrontation. 

(a) Control by court. The court shall 

exercise reasonable control over the mode 

and order of interrogating witnesses and 

presenting evidence so as to (1) make the 

interrogation and presentation effective 

for the ascertainment of the truth, ... 

In the present case, the District Court reserved 

judgment on the admissibility of the other crimes and 

wrongful acts evidence until after the State had filed a 

sealed affidavit demonstrating what that evidence would show. 

We find no abuse of discretion by the District Court. The 
State satisfied the Just requirements. Its use of evidence 

of other crimes and wrongful acts was sufficient to prove 

motive, plan, opportunity, and identity. See - Cor, 396 P.2d 

at 89. The District Court exercised its discretion 

painstakingly and conscientiously. We will not disturb that 

judgment . 

Affirmed. 

We concur: