No. 13427 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

ALBERT LaVE, JR. 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Charles Luedke, Judqe presiding. 

Counsel of Record: 

For Appellant: 

Michael J. Whalen arsued, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Mayo Ashley argued, Assistant Attorney General, 

Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Submitted: September 26, 1977 

Filed: T!OV 1 5 T97? I 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant appeals from his conviction in the District Court, 

Yellowstone County, of the offense of robbery and his imprisonment 

in the Montana state prison. 

On November 12, 1975, defendant Albert LaVe, Jr. allegedly 

robbed the Food Bank grocery store, located at the corner of Third 

Avenue South and 27th Street, Billings, Montana, of between $800 and 

$1,000. No arrest was made at that time. During a murder investigation in Los Angeles, California, in January 1976, defendant was 

arrested by Officer Jerry Marvel of the Los Angeles Police Department and held on suspicion of murder. Although the Los Angeles 

Police Department never charged LaVe with the murder, it was discovered while he was in custody that he was wanted in Montana on a 

robbery charge. LaVe was subsequently extradited to Montana to stand 

trial. 

At LaVe's trial the prosecutor sought to introduce an 

"admission" by defendant concerning the robbery in Montana which 

defendant allegedly made to Officer Marvel while he was under arrest 

in California. During trial the trial judge held a hearing in his 

chambers to determine the admissibility of the "admission". At 

this hearing Officer Marvel testified that on January 13, 1976, a 

woman identifying herself as LaVe's mother telephoned him and asked 

him to talk with LaVe about a "deal" LaVe wanted to make concerning 

the robbery charge in Montana. In exchange for identifying the 

murderer in the Los Angeles case, LaVe wanted the Los Angeles police 

to delay returning him to Montana. Marvel testified LaVe's statements to him were: 

" * * *'I have some folks in Montanaf--indicating 

relatives--[he] said 'They want me for some robberies 

up there' and he also said, 'They have me pretty good' 

and also that lie wanted to stay in the L. A. area or 

jail as long as he could because he felt he had a 

better change of beating the case the longer he 

stayed away." 
Lave's counsel objected to admitting Marvel's testimony 

claiming, among other things, that it would be error to mention 

the fact that LaVe was ever suspected of a murder. He informed the 

trial judge, however, that if Marvel's testimony was allowed to go 

before the jury, he would inquire into the circumstances under which 

LaVe was arrested and made the statement to Marvel. He felt those 

circumstances were oppressive to LaVe and he claimed they would 

have a substantial bearing on the weight the jury should give Marvel's 

testimony. 

Because of defense counsel's position, the trial judge 

initially refused to allow any of Marvel's testimony to go before 

the jury. He felt the chances of connecting LaVe with the murder 

in Los Angeles, with which he was not charged, were too great. The 

prosecution later moved for a reconsideration of the trial judge's 

ruling. After assurances from the prosecutor that he would not 

associate LaVe with the Los Angeles murder, the trial judge decided 

to allow Marvel's testimony. 

Lave's counsel then renewed his prior objections to the admission of Marvel's testimony. In order to avoid interrupting 

Marvel while he was on the witness stand, defense counsel requested 

continuing objections to all of Marvel's testimony. The trial judge 

granted the defense counsel's request. 

Marvel's testimony in front of the jury began: 

"Q. Your name is Jerry Marvel? A. Yes, it is. 

"Q. And you have just finished testifying in 

Chambers. A. Yes, sir. 

"Q. Mr. Marvel, what is your occupation? A. 

Police Officer, City of Los Angeles, California. 

"Q. How long have you been a police officer? 

A. Approximately five and a half years. 

"Q. And that's all been with Los Angeles? A. 

Yes, an additional two years in Washington, D.C. 
"Q. Okay, thank you. What are your present 

duties with the Los Angeles Police Department? 

A. Assigned to Holenbeck Investigations, homicide 

detail. 

"Q. You're a detective then. A. Yes I am." 

Marvel then testified that he had at one time spoken with 

defendant in the sheriff's office of the Los Angeles county jail. 

He went to see defendant in response to a telephone call he received 

that LaVe wished to speak with him. Before beginning the conversation Marvel advised LaVe of his rights. LaVe then made the statements previously quoted. Marvel did not testify, at that time, 

who had arrested LaVe or why he had been arrested. 

On cross-examination LaVe's counsel developed the circumstances 

surrounding LaVe's arrest and his later conversation with Marvel. 

Marvel testified it was his partner and he who had arrested LaVe 

when he knocked at the door of a certain apartment in Los Angeles. 

Marvel and his partner had already arrested two other men when LaVe 

came to the door. A service revolver was put into LaVe's face and 

he was told to "freeze". 

LaVe's counsel also attempted to discredit Marvel's testimony 

concerning defendant's admission about the Montana robbery charge 

by showing that Marvel was dissatisfied with LaVe's testimony in 

a separate preliminary hearing in Los Angeles, regarding a criminal 

charge against a third person. Marvel, however, did not admit that 

either he or the Los Angeles Police Department was dissatisfied 

with LaVe's testimony. 

At the close of Marvel's testimony, defendant moved for a 

mistrial on the basis that Marvel's testimony should not have been 

allowed before the jury and that Marvel had made statements in the 

initial part of his testimony that he was cautioned against making 

prior to taking the stand. The trial judge denied defendant's motion. 

The jury found defendant guilty of committing the offense 

of robbery and the trial judge sentenced him to 20 years at hard 
labor in Montana state prison. Defendant appealed. 

On appeal defendant raised these issues: 

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

for a mistrial? 

2. Was Officer Marvel's testimony before the jury prejudicial to defendant, thus denying him his right to a fair trial? 

Because the two issues are related, we will discuss them 

together. 

The decision to declare a mistrial is within the sound discretion of the trial judge. A motion for mistrial may be granted 

when something has occurred which is likely to affect the justice 

of the verdict. Curley v. Boston Herald-Traveler Corp., 314 Mass. 

31, 49 N.E.2d 445, 446 (1943). The introduction of inadmissible 

evidence which results in harmful error to the defendant may be such 

an instance. 

Generally, evidence of other offenses or of other similar 

acts at other times is inadmissible for the purpose of showing the 

commission of the particular criminal offense charged. State v. 

Taylor, 163 Mont. 106, 120, 515 P.2d 695 (1973). The reason is that 

the defendant is entitled to be informed of the offense charged so 

that he need prepare his defense only to that particular offense. 

Proof of other offenses subjects him to surprise and to a defense 

of multiple collateral or unrelated issues. State v. Jensen, 153 

Mont. 233, 455 P.2d 631 (1969). This rule applies to evidence of 

other offenses regardless of whether defendant was actually charged 

with the other offense. See, State v. Tiedemann, 139 Mont. 237, 

362 P.2d 529 (1961). 

The general rule, however, is subject to several exceptions 

when such evidence becomes admissible: (1) When similar acts with 

the same prosecuting witness are involved; (2) when similar acts 

are not too remote in time; and (3) when evidence of other offenses 
tends to establish a common scheme, plan or system, where such 

other offenses are similar to, closely connected with and not too 

remote from the one charged, and where they are so that the proof 

of one tends to establish the other. State v. Taylor, supra; State 

V. Jensen, supra. 

Once such evidence is introduced, the party who objected to 

its introduction generally does not waive his objection to its erroneous admission by subsequently introducing evidence to disprove the 

matters testified to, to explain them, or to prove facts inconsistent 

with them, even though the matter he introduces is of the same kind 

or nature. State v. Tiedemann, supra; 89 C.J.S. Trial §66l, p. 507. 

After the opposing party's objections are made to the testimony and 

overruled, that ruling becomes the law of the case to which the opposing party is required to submit. He is obligated to try the case 

on this ruling and cannot have the ruling reversed until judgment 

is entered and an appeal is made. 

The fact that the opposing party conforms to the ruling and 

offers testimony on the theory adopted by the trial court does not 

indicate a purpose to waive the error. State v. Tiedemann, supra. 

/ 

Evidence showing oc tending to show that defendant committed 

another offense is prejudicial where a fair inference from the 

evidence is that defendant was guilty of the other crime. State 

v. Tiedemann, supra. The test of whether the prejudicial error 

requires reversal is this: Is there a reasonable possibility that 

the inadmissible evidence might have contributed to the conviction? 

State v. Langan, 151 Mont. 558, 568, 445 P.2d 565 (1968). 

The ground rules under which the court allowed Marvel's 

testimony provided that neither side would bring out evidence associating defendant with a murder charge in Los Angeles. The statement which Marvel made on direct examination to which the defendant 

objected was that in his beginning testimony, Marvel stated he was 

assigned to "homicide detail". 
 his statement was not prejudicial for two reasons. First, 

the statement was made in response to the prosecutor's question 

asking Marvel what his present duties with the Los Angeles Police 

Department were, not what his duties were at the time he arrested 

defendant. That Marvel was presently assigned to homicide detail 

does not necessarily mean he was assigned to that same detail at 

the time he arrested the defendant some four months earlier. 

Second, Marvel did not testify to anything on direct examination that would have connected defendant to a murder charge. He did 

not tell who it was who had arrested defendant or under what circumstances defendant was arrested. In explaining how he came to have 

a conversation with the defendant, Marvel stated only that he "had 

received a telephone call that Mr. Lave wished to speak to me." 

It was not until cross-examination by the defense counsel that 

Marvel revealed it was he who had arrested defendant and what the 

circumstances of that arrest were. Marvel never testified to what 

defendant was charged with, nor why he was held. 

An examination of the cases cited by defendant reveals that 

the alleged error in those cases were statements strongly indicating 

the defendants were guilty of other offenses. 

In Jensen, the defendant was charged with committing a lewd 

and lascivious act on a child under 16 years old. The evidence 

sought to be introduced, which was allowed under an exception to 

the general rule, was testimony of other patients of the defendantdoctor that defendant had committed the same acts on them. 

In Tiedemann, the defendant was charged with the attempted 

rape of a child under 18 years. Defendant's conviction was reversed 

because the prosecution testified over the defendant's objection 

to an admission which defendant had made to the county attorney 

after his arrest indicating he was involved in an earlier rape 

incident. 
In State v. Ebel, 92 Mont. 413, 15 P.2d 233 (1932), the 

defendant was charged with burglarizing another's house. Evidence 

was introduced showing that the defendant had in his possession an 

unusually shaped comb similar to one allegedly taken from the victim 

in an earlier burglary. The defendant's conviction was reversed. 

Although it is true that Marvel's testimony showed that 

his conversation with defendant took place while the defendant was 

under arrest and in police custody, none of Marvel's direct examination indicated why defendant was arrested. The jury may have assumed 

he was arrested for the alleged robbery in Montana. None of Marvel's 

testimony associated defendant with the murder charge in Los Angeles, 

nor was there any indication defendant was arrested on suspicion of 

murder. 

For these reasons we find Marvel's testimony that he was 

presently assigned to homicide detail was not prejudicial to the 

defendant. The trial judge was correct in refusing to grant defendant's motion for a mistrial. The defendant was given a fair trial. 

A£ £ irmed. 

Justice 

We Concur: