NO. 83--04 INTHE SUPREME COURTOF THE STATEOF MONTANA 1983

STATEOF MONTANA, Plaintiff and Respondent,

-vsJAMESE. GRAY,Defendantand Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, Inand for the County of Ravalli, TheHonorableH. William Coder, Judgepresiding.

COUNSELOF RECORD: ForAppellant: JohnE. Riddiough argued, Missoula,Montana

For Respondent: Mark Murphy argued,County Prosecutor Services, Helena, Montana

-- Submitted: October 25, 1983 Decided: December 23, 1983

- -. Clerk2.1~.Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Following a jury trial in the District Court of Ravalli County, defendant was convicted of criminal mischief, a felony, by reason of damaging a pickup with the purpose of defrauding an insurer. Defendant appeals from thejudgment of conviction. This is an appeal following the second trial of this

case. ThisCourtreversed thefirstconviction of defendant forprocedural errors in admitting "other crimes" evidence. Statev. Gray (Mont. 1982), 643P.2d 233, 39 St.Rep. 622. The present case is a retrial of defendant on the original charge before a different judge and jury. In essence, the State's evidence indicated that defendant considered his pickup a "lemon" and wanted to get rid of it; thathisinsurance on thepickup was being cancelled effective August 31, 1980; that on August 28, he intentionally drove the vehicle over a steepbank on the Skalkaho road to collect the insurance; that defendant and one Stephen Forsman concocted a storythatdefendantwas forced off the road by a truck hauling a horse trailer; thatthereafter the insurance adjuster determined that the pickup was not a total loss but was repairable; and thereafter one Terry Atkins vandalized the pickup with defendant driving Atkins toits locationand actingasa lookout. Defendant's evidence essentially consisted of a refutation of the State's evidence by impeachment of the State's witnesses together with defendant's testimony concerning the events in question. Basically, defendant testified thathe lefthis trailer on the evening of August28 in a rage to drive up to Skalkaho Falls to cool off; that he did not like Stephen Forsman and was mad at his stepdaughter Leala for running around with Forsman; that they followed him in another vehicle and when he looked over his shoulder to see if theywere still followinghim,hispickup went over the bank on the Skalkaho road and injured him; that the story about being forced off the road by a truck and horse trailer was entirely the invention of Stephen Forsman but he went along with it toprotect Forsman. Defendant denied any complicity in later vandalizing his pickup and denied prior knowledge of cancellation of the insurance on hispickup. Defendant advances three specifications of error: 1. Defendant is entitled to a new trial because of prosecutorial misconduct resulting in the admission in evidence of defendant's parole status. 2. The refusal of the court to instruct the jury on the lesser included offense of unsworn falsification to authorities, a misdemeanor, constitutes reversible error. 3. The admission of photographs of defendant's truck after ithad been vandalized constitutes reversible error. At a hearing in chambers on the first day of trial, the following colloquy took place between the opposing attorneys concerning defendant's parole status: "MR. RIDDIOUGH: I would have one final request, Your Honor, and that would be with regards to the fact that Mr. Gray was on parole at the time that this offense was allegedly committed and I would request that the State caution its witnesses before testimony to not mention during their testimony anything regarding any prior convictions or any parole or parole revocation. "THECOURT: Mr. Murphy?"MR. MURPHY: Your Honor, inthetrialof the first case Mrs. Townsend took great pains to sanitize the record of Mr. Gray's previous record. In fact, there is an indication on the part of James Bailey that he refused toanswer a questionput tohim by Mrs. Townsend concerning what he did next. What he did next was contactRalph Fisher, theDefendant's paroleofficer. Wewillagainattemptto sanitize the record of any of those references and I will caution my witnesses and attempt to avoid any mention of that. "MR. RIDDIOUGH: That's sufficient for me. "THE COURT: Okay." Leala Gray, defendant's stepdaughter, was called as a witness in the State's case-in-chief. During directexamination by the prosecutor, the following exchange took place regarding StephenForsman, another of theState's witnesses: "(2. And soyou proceeded back. Did you talk about anything else on theway back? A. Well, Steve was mumbling about, what am I going todo. I don't want tobe in trouble. I don't want togetinvolved. "Q. Did that make sense to you? A. Yeah. "Q. How didyou feel thathewould be in trouble? A. The conversationatdinnertime would make him feel like he could possiblyget introuble. Q. With your father, with the authorities, what kind of trouble? A. Well, see, what we talked about at dinnertime was the trouble we've been having with the brown truck and the argument dad has with C&M Arrow and him being on parole and he knew that since dad wrecked the truck, that would affect his parole and that would bring in the law and Steve didn't like the law 

## -- doesn't like the law.

### '' Later, during the same examination of thiswitness by the prosecutor in the State's case-in-chief, the following exchange took place:"Q. Okay. But you told this story to OfficerBaileybecause you didn't want to lie; is thatright? A. Because I wanted to help Steve stay out of the scene of this whole thing. I guess the word I'm looking for is cover for Steve. "Q. And what had Steve done wrong? A. Well, he told them thattherewas a truck and trailer involved thatwasn't. "Q. And he told them thatbecausehe was afraid he was going to get in trouble? A. Uh-huh. "Q. For what? A. Because he knew about theargument my dad had with C&Mover the truck and he alsoknew thatmy dad was on parole. 'I At the conclusion of the direct examination of Leala Gray, appellantmoved for a mistrialinchambers outsidethe presence of thejury based upon the elicitingof the testimony of defendant's parole status by the prosecutor as indicated above. The court denied the motion for mistrial but gave a cautionary instructionasfollows: "Ladies and gentlemen of the jury, you have received some testimony in thiscase that the accused, James Gray, was on parole at the time that the events occurred inthe instantcase. "You areinstructed toentirelydisregard such testimony. The status of the accused is totally irrelevant and immaterial to any issue in the case beforeyou and toconsider such testimony inyour deliberations would be violative of your oathsasjurors." Defendant correctly points out that the prosecutor breached his promise to caution Leala Gray against mentioning her stepfather's parole status. Additionally, questions were asked on two occasions during Leala Gray's directexamination by theprosecutor that elicited the fact that defendant was on parole. Defendant argues that theevidence thathe was onparole at the time of the commission of the crime charged is evidence of other crimes that must pass both the test of admissibility and the test of proper notice before it can be introduced in evidence. State v. Just (1979) 184 Mont. 262, 602 P.2d 957; State v. Case (Mont. 1980), 621P.2d 1066, 37 St.Rep. 2057; State v. Gray (Mont. 1982), 643 P.2d 233, 39 St.Hep. 622. Additionally, the prosecutor stated that he purposely did not talk to Leala Gray prior to her testimony, although he had promised to caution her against disclosing her step-father's parole status. It is clear that misconduct by a prosecutor may form the basis for granting a new trial where the prosecutor's actions have deprived defendant of a fair and impartial trial. State v. Bain (1978), 176 Mont. 23, 575 P.2d 919; State

### v. Toner (1953),127Mont. 283, 263 P.2d 971;State v. Hart (Mont. 1981), 625P.2d 21, 38 St.Rep. 133. Theprosecution admits that itbreached itspromise to caution Leala Gray against disclosing her father's parole status during her testimony. The prosecution argues that the State did not intentionally fail to warn 

### Ms. Gray not to mention her stepfather's parole status; that the State did not purposely elicit from her the testimony concerning her stepfather's parole status; that any prejudice caused by the mention of defendant's status was eliminated by the court's cautionary instruction; and that defense counsel had more than an equal opportunity by virtue of numerous contacts with Leala Gray to prevent this error by warning her himself and that defense counsel also failed towarn her. The State also argues that the error was harmless in any event.We find no excuse for the failure of the prosecution to warn Leala Gray not to mention her stepfather's parole status as the prosecutor had promised. However, we hold thatunder the circumstancesof thiscase theDistrict Court didnot abuse itsdiscretiondenying themotion formistrial for testimony concerning defendant's parole status. Rule 403, Mont.R.Evid., provides the exclusion of relevant evidence that may prejudice the jury. However, as recognized by the Commission on Evidence, "a key element of thisrule is thediscretionof thejudge indecidingwhether otherwise relevantevidence istobe excluded." In Statev. Rollins (1967), 149Mont. 481, 428 P.2d 462, thisCourtheld that on questions of this nature, the "trial judge should have latitude of discretion." 149Mont. at484; see also, Statev. Austad (Mont. 1982),641P.2d 1373, 39 St.Rep. 356; State v. Azure (1979), 181Mont. 47, 591 P.2d 1125; Wallin

v. Kenyon Estate (1974), 164Mont. 160, 519 P.2d 1236. As a matter of law, we cannot hold that the District Court abused its discretion in denying the motion for a mistrial. First of all, the judge stated that from observation of the jury, the impact of Leala Gray's testimony concerning the defendant's parole status was minimal. Also, the court cautioned the jury to disregard all evidence of defendant's parole status as it was irrelevant and immaterial which cured any resulting prejudice tohim. Furthermore, we recognize that prejudice will not be presumed; it must be established from the record that a substantial rightwas denied. Section46-20-701, MCA; State

v. Wells (Mont. 1983), 658 P.2d 381, 40 St.Rep. 127; Statev. Dupre (Mont. 1982), 650 P.2d 1381, 39 St.Kep. 1660. The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the conviction. State v. Wells, supra; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97; also see, Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17L.Ed.2d 705. Here, Leala Gray was a hostile witness for the State. She, unlike a law enforcement officer, had no motive to

secureher stepfather's conviction. The Statehad no influence over her testimony. The evidence supporting defendant's conviction was substantial, if not overwhelming. Although there were many attempts to impeach various witnesses for both the State and the defendant during the trial, the defendant's version of events is simply incredible. It was refuted by witnesses Forsman, Atkins, Leala Gray and to some extent by the highway patrolman and the nurse at the hospital. We hold that the totality of circumstances shows no reasonable possibility that the inadmissible evidence might have contributed to defendant's conviction. Directing our attention to the second specification of error, we note that the court refused to give defendant's offered instructionon unsworn falsification to authorities, a misdemeanor. We further note that an identical instruction had been accepted and given by the court in appellant's first trial. Defendant argues that the District Court's instructionsmust cover every issue or theory having support in the evidence,and the inquiry of the District Court must only bewhether or not any evidence exists in the record towarrant

an instruction. Statev. Buckley (1976), 171Mont. 238, 557 P.2d 283; Statev. Bouslaugh (1978), 176Mont. 78, 576 P.2d 261. The crime with which defendant was charged reads as follows: "45-6-101. Criminalmischief. (1)A person commits the offense of criminalmischief ifheknowinglyorpurposely:

"(c) damages or destroys property with thepurpose todefraud an insurer;" The misdemeanor offense of unsworn falsification to authorities provides that a person commits that offense if with a purpose tomislead a public servantinperforming his official function, he utilizes a writing in a manner by which tomislead. Section45-7-203, MCA. Where the same actor transactionconstitutesa violation of two distinct statutory provisions, the test to be applied todetermine whether there aretwo offensesor only

one iswhether eachprovisionrequiresproof of a factwhich the other does not. Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Here, the elements of the crime of unsworn falsification to authorities are not required to be proved to establish the crime of criminal mischief. To determine if one crime is a lesser included offense of another, the statutory elements of the respective offenses, not the facts of the individual case, control. Blockburger v. United States, supra. A simple reading of the two statutesmakes it clear that the elements necessary to constitute the two crimes are separate and distinct,having littleincommon. Finally, defendant arguesthathe is entitled toa new trial because several photographs of defendant's damaged pickup after it had been vandalized were admitted in evidence. Defendant contends that as he had not been charged with committing the vandalism the photographs were evidence of other crimes. In substance defendant says that the evidence should have been excluded as its probative value was substantiallyoutweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury as set forth in Rule 403, Mont.R.Evid. Also see, State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125; State v. Rollins (1967), 149Mont. 481, 428 P.2d 462. Defendant argues that the probative value of these photographs was minimal as testimony regarding the vandalizing of the pickup was elicited from several witnesses in the case. Defendant argues that under State v. Bischert (1957), 131Mont. 152, 308 P.2d 969, and Azure, supra, the evidence should nothave been admitted and he is entitled toa new trial. The State counters by admitting that the pictures do contain evidenceof other crimes but thata proper noticeof the same was given tothe defendant asrequired by Statev. Just (1979), 184 Mont. 262, 602 P.2d 957. The Stateargues thatthepictures show thedamage done inboth incidents and they were admitted to corroborate the State's theory on motive of the defendant. They were not gruesome and would not inflame thejury. Inour view thepictureswere properly admitted inthe discretion of the trial court asproof of motive of the defendant and therefore their probative value was substantialand was not outweighed by prejudice tothedefendant. A££irmed.

Weconcur:

JusticesMr. Justice DanielJ. Shea,dissenting:

Idissent. Iwould grant anew trial. The trial court in effect granted a verbal motion in limine directing the State not to present evidence that d.efendantwas on parole. Although the State agreed that it would caution each of its witnesses not to maintain that defendantwas on parole, the State deliberately chose not to talk to one of its witnesses before calling her to the witness stand. This witness therefore, was not warned that she must not mention that defendant was on parole. The witness twice (or three times) testified that defendant was

on parole. The admission of this evidence in violation of a court order excluding such evidence, is presumptively prejudicial. The State has failed to demonstrate that this prejudicial evidence did not affect the outcome of the trial and therefore J would grant a new trial. It makes no difference whether the State deliberately elicited the forbidden testimony or inadvertently did so. Theharm to the defendant is the same in either case. Itcan hardly be denied that evidence that a defendant has already been convicted of a felony is prejudicial. to his trial. It

was the State's burden, once this inadmissible and prejudicial testimony was admitted, to prove a lack of reasonable possibility that the inadmissible evidence contributed to the conviction. Chapmanv. California (1-967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The State failed in this burden and this Court, therefore, has the duty of reversing the convictionand orderinganew trial. If the State had tactical reasons for not talking to witness Leala Gray before she testified, the Statenonetheless was not freed from its duty of warning this witness not to testify that defendant was on parole. The State stillhad amethod by which this witness could be given the admonition. Justbefore thewitness testified, the State could have asked for a court conference in chambers,and then the witness could have been called in to chambers, and, at the State's request, the court could have warned thewitness not to testify that defendant was on parole. But this was not done and the defendant should nothave tobear the burden of the State's omission by having to satisfy this Court that the prejudicial evidence was considered in the jury's deliberations. Rather, itwas the duty of the State to show that itwas notconsidered. I further emphasize that the procedural context of the issue of defendant's being on parole,does not leadme to the conclusion that the prosecutor's conductwas as white as the driven snow. Defense counsel undoubtedly made themotion in limine because he knew that defendant's status a.sa parolee

was bound to be injected into the trial. He knew this because of the record of the first trial and because of the investigation made before trial that indicated defendant's parole statuswas discussed. Therefore,before trial began, he made the verbal motion in limine. When witness Leala Gray in anonresponsive answer to the State, firstmentioned that defenda.ntwas onparole, defense counseld.idnot then move for a mistrial,undoubtedly because of the fear of further emphasizing the forbidden evidence. But later in the witnesses redirect examination, she again mentioned that defendant was on parole. Again, d-efense counseld.idnot immediatelymove for amistrial. Instead.,he waited.until her examinationhad concluded and then he movedin chambers, for a mistrial because the forbidden evidence

was placed before the jury. The trial court denied the motion but upon coming into the courtroom,gave the iury the cautionary admonition quoted by the majority. This cautionary instructiondid not, however, cure the error, for the error was committed by the State. This error was presumptively prejudicial, and the State has not overcome this presumption of prejudice by a demonstration that the jury disregarded the fact that he was already a convicted felon. When defense counsel made hisverbalmotion in limine to forbid the mentioning that defendant was on parole, the prosecutor expressed his displeasure, but nonetheless expressed that he would go along with the efforts to "sanitize" the trial just as the State had made efforts to "sanitize" the first trial. It appears, however, that in bringing in the forbidden evidence, the State was not quite as white as the driven snow. The State knew that the witness most likely to bring in defendant's status as a parolee was Leala Gray, and she is the one witness who the State deliberately did not talk to before trial thereby avoiding warning the witness not to mention that defendant was on trial. Although the State asserts its noncomplicity in bringing the forbidden evidence before the jury, the context of the questioning leadsme to believe that the assertion of innocence cannot stand. The first questionasked by the prosecutor appears tobe innocent enough, and Leala Gray's answer also appears to be nonresponsive. Nonetheless, they told the jurydefendantwas on parole and the State could have prevented this from happening (orat least done its part in doing so) by movingi.n chambers to have the court warn her not to mention that defendant was on parole. But the State chose not to do so and thereforeviola-tedthe order compelling the State towarn each of itswitnesses. Later, in the redirect examination of Leala Gray, the prosecutor again asked questionsof LealaGray thatno longer smack of innocence. The prosecutor asked the witness a second time about witness Stephen Forsman's fears that he would be in trouble. 

### "Q. And he [Steve Forsman] told them [the authorities] thathewas afraid hewas going to get in trouble? A. Uh-huh. "Q. For what? A. Because he knew about the argumentmy dad had with C&M over the truck and he 

### -- also knew thatmydad was on parole." 

### --- --- This second series of questions was asked after the witness had already, during the first series of questions, di.sclosed that defendant was on parole. By this time, the prosecutorwas on notice that thewitnesswas likely to again mention that defendant was on parole if the same kind of questions were directed to her. The prosecutor could only expect tha.tthe same kind of question asked a second time would again elicit the same response--that defendant was on parole. And it did. For these reasons, I cannot look a the prosecutor's conduct as being a.swhite as the driven snow. Here the jury had evidence before it that defendanthad already been convicted of a felony, for his being on parole could lead only to that conclusion. It was axiomatic that admission of the defendant's previous criminal record is prejudicial. See Rule 404x(b), Mont.R.Evid., and the comments to that rule. The prejudice to defendant is increased where the evidence is admitted without any legal basis to support its admission. And that is precisely thesituation here. It makes little sense to then impose the burden on the defendant to prove that the inadmissible and prejudicial evidence adversely affected the outcome of his trial. But that is what the majority has done here. The majority punishes the wrong party for the infraction of the trial court's order that certain evidencenotbe given to the jury. The majority has imposed an impossible burden on the defendant, a result hardly in accord with sound and fair rules of trial and.a-ppellateprocedure. I next attempt to cut through the fog of the majority holding that admission of defendant's criminal record was harmless error. It is a difficult job because the fog is thick. In reviewing defendant's claim of error, the majority purports to be guided by Chapman v. California (1967), 386 U.S. 1-8,87 S.Ct. 824, 17 L.Ed.2d 705, in stating the "test -- of prejudicial error." Themajority states that the test is 

### - "whether there is a reasonabl-epossibility the inadmissible evidence might have contributed to the conviction."

(Emphasisadded.) And yet the majority did not analyze the evidence in light of this test to determine whether the admitted inadmissible and prejudicial evidence might have infected the jury's verdict. Instead, the majority seeks several reasons to justify itsdecisionnot to reverse. First, the majority relies on the decision of the trial court refusing to grant a new trial. It is common, of course, for trial courts to refuse motions for new trials. And, once the trial court decided not to grant themotion he had to conclude that the inadmissible and prejudicial evidence had minimal. impact on the jury. He couldn't very well say the evidence had a great impact on the jury andstill refuse to grant the motion for mistrial. I doubt, furthermore, tha.t the trial courtt s observations in this situation should be given much weight. The jurydid nothave to drop its teeth before the trial court concluded the evidencewould adversely affect theirdeliberations. Second, the majority uses the standard ruling where a conviction is to be affirmed--the cautionary instruction given by the tria.1 court cured all. Yet we all know that once the knife is plunged in, a cautionary instruction does not cure all. The point is that the State, through questioning its witness, put the evidence before the jury that the defenda.nt was already a convicted felon. A cautionary instruction could not withdraw that information from the jury'smind. Third, the majority engages in a remarkable reversalof roles when it holds that even though the evidence was prejudicial, the duty isnonetheless imposed on the defendant to show that the offending evidence contributed to his conviction. The only way he could do this in a normal case would be toproduce jury affidavits, and this is normally an impermissiblemethod of demonstrating prejudice. Moreover, once the jury convicted, jurors would be reluctant to admit that the inadmissible evidence played a part in their decision to convict. Fourth, the majority concludes that Leala Gray was a hostile witness because she would have no motive to secure her stepfather's conviction. The fact is,however, that she a.nd her boyfriend Stephen Forsman testified at the first trial, and neither of themwere called as hostilewitnesses. And neither were they called as hostile witnesses by the State in the second trial. The implication is that LealaGray purposely sought to produce a mistrial by testifying that her stepfather-defendant was on parole. Rut the evidence doesnot support that conclusion. A fair reading of the trial transcript indicates that the State was more than happy to get before the jury the fact that defendant was already a convicted felon. If the State did not want this information before the jury, it certainly did nothing to prevent it, and therein lies the evil of the majority holding. The State is given the benefit of its deliberate choice not to warn Leala Gray that shemust not testify that the defendantwas onparole. This choice flew in the face of the trial court's order. Fifth and finally,we get to the catch-all-,the apparent real justification for upholding the conviction. Apparently with Chapman 77. California, supra, in mind, the majority declares: "The evidence supporting defendant's conviction

was substantial, if not overwhelming." If the evidence of defendant's guilt was overwhelming, it was the duty of the majority to set forth a.11of that evidence to describe its overwhelming character. On the other hand, if the evidence of defendant's guilt was only "substantial," then the conviction cannot be affirmed by an application of the harmless error rule. Substantial evidence is required to affirm any criminal conviction challenged for legal sufficiency of the evidence,and substantial evidence is not enough to avoid a reversal based on application of the test set forth inChapmanv. California. Iwould vacate the iudgmentand order anew trial.