No. 13427 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

ALBERT LaVE, JR. Defendant and Appellant.

Appeal from: DistrictCourt 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 

## 15T97?

IMr. 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 arrestwas made at that time. During amurder investigation in LosAngeles, California, in January 1976, defendant was arrested by Officer Jerry Marvel of the LosAngeles Police Department and held on suspicion ofmurder. Although the Los Angeles Police Department never charged LaVe with the murder, itwas 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 inMontana 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'smother 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 LosAngeles case,LaVewanted 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 'Theywant me for some robberies up there' and he also said, 'Theyhave me pretty good' and also that lie wanted to stay in the L. A. area or jail as long as he could because he felthe 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 itwould be error tomention the fact that LaVewas ever suspected of amurder. He informed the trial judge, however, that if Marvel's testimonywas 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 substantialbearing on the weight the jury should giveMarvel's testimony. Because of defense counsel'sposition, 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 themurder in LosAngeles, with which he was not charged, were too great. The prosecution latermoved for a reconsiderationof the trial judge's ruling. After assurances from theprosecutor that he would not associate LaVewith the LosAngeles 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 inWashington,

### D.C."Q. Okay, thank you. What are your present dutieswith the LosAngeles 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 LaVewished to speak with him. Before beginning the conversation Marvel advised LaVe of his rights. LaVe thenmade 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 LosAngeles. 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 discreditMarvel'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 Departmentwas dissatisfied with LaVe's testimony. At the close of Marvel's testimony, defendantmoved for a mistrial on the basis thatMarvel'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'smotion. The jury found defendant guilty of committing the offense 

### of robbery and the trial judge sentenced him to 

### 20 years at hardlabor in Montana stateprison. Defendant appealed. On appeal defendant raised these issues: 

### I. Did the District Court err in denying defendant'smotion for a mistrial? 2. Was OfficerMarvel'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 amistrial iswithin the sound discretion of the trial judge. 

### A motion formistrial may be granted when somethinghas occurred which is likely to affect the justice of the verdict. Curley v. Boston Herald-TravelerCorp., 314 Mass. 31, 49 N.E.2d 445, 446 (1943). The introduction of inadmissible evidence which results in harmful error to the defendantmay 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, 163Mont. 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 subjectshim to surprise and to 

### a defense of multiple collateral or unrelated issues. Statev. Jensen, 153 Mont. 233, 455 P.2d 631 (1969). This rule applies to evidence of other offenses regardless of whether defendantwas 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 actswith the sameprosecuting witness are involved; (2)when similar acts

are not too remote in time; and (3)when evidence of other offensestends 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 introductiongenerally does not waive his objection to its erroneous admissionby 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 cannothave the ruling reversed until judgment is entered and an appeal ismade. The fact that the opposingparty conforms to the ruling and offers testimony on the theory adopted by the trial court does not indicate a purpose to waive the error. Statev. Tiedemann, supra. / Evidence showingoc tending to show that defendant committed another offense isprejudicial where a fair inference from the evidence is that defendantwas guilty of the other crime. State

v. Tiedemann, supra. The test of whether the prejudicial error requires reversal is this: Is there a reasonablepossibility that the inadmissible evidence might have contributed to the conviction? State v. Langan, 151Mont. 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 amurder charge in LosAngeles. 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 "homicidedetail". his statementwas not prejudicial for two reasons. First, the statementwasmade in response to the prosecutor's question asking Marvel what his present duties with the LosAngeles Police Departmentwere, not what his duties were at the time he arrested defendant. ThatMarvel was presently assigned to homicide detail does not necessarilymean 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 thatwould have connected defendant to amurder charge. He did not tellwho itwas who had arrested defendant or under what circumstancesdefendantwas arrested. In explaining how he came to have

a conversation with the defendant, Marvel stated only that he "had received a telephone call thatMr. Lave wished to speak tome." Itwas not until cross-examinationby the defense counsel that Marvel revealed it was he who had arrested defendant and what the circumstances of that arrestwere. Marvel never testified to what defendantwas charged with, nor why he was held. An examination of the cases cited by defendant reveals that the alleged error in those caseswere statements strongly indicating the defendants were guilty of other offenses. In Jensen, the defendantwas 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. InTiedemann,the defendantwas charged with the attempted rape of a child under 18 years. Defendant'sconvictionwas reversed because the prosecution testified over the defendant's objection to an admissionwhich defendant had made to the county attorney after his arrest indicating he was involved in an earlier rape incident.In Statev. Ebel, 92Mont. 413, 15 P.2d 233 (1932),the defendantwas charged with burglarizing another'shouse. 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 convictionwas reversed. Although it is true that Marvel's testimony showed that his conversation with defendant took place while the defendantwas under arrest and inpolice custody, none of Marvel's direct examination indicated why defendantwas arrested. The jury may have assumed he was arrested for the alleged robbery inMontana. None of Marvel's testimony associated defendant with the murder charge in Los Angeles,

nor was there any indication defendantwas arrested on suspicion of murder. For these reasonswe find Marvel's testimony that he was presently assigned to homicide detailwas not prejudicial to the defendant. The trial judgewas correct in refusing to grant defendant's motion for amistrial. The defendantwas given a fair trial. A££irmed.

Justice

We Concur: