STATE v BROWN
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NO. 83-375 I N THE SUPREME C U T OF T E STATE O M N A A O R H F OTN 1984 STATE O MONTANA, F P l a i n t i f f and Respondent, VS . L R Y G . BROWN, AR Defendant and A p p e l l a n t . Appeal from: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Cascade Honorable H . William Coder, Judge p r e s i d i n g . Counsel o f Record: For A p p e l l a n t : Robert M. For Respondent Kampfer a r a u e d , G r e a t F a l l s Montana : Honorable Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J o e R. R o b e r t s , A s s i s t a n t A t t o r n e y G e n e r a l , a r q u e d , Helena, Montana J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana Submitted. Decided: Filed: ~ f - 8i 1984 ~ Clerk A p r i l 1 6 , 1984 May 8 , 1 9 8 4 M r . J u s t i c e Frank B. t h e Court. Defendant Jr. d e l i v e r e d t h e Opinion o f Morrison, L a r r y G. Brown appeals t h e E i g h t h J u d i c i a l D i s t r i c t Court judgment of the (Cascade County) e n t e r e d upon a j u r y v e r d i c t f i n d i n g him g u i l t y o f c r i m i n a l m i s c h i e f . Defendant and P a t r i c i a Brown d i v o r c e d i n F e b r u a r y 1981, but t h e c o n f l i c t s causing t h e divorce continued. 21, 1982 around 1 0 p.m., O October n P a t r i c i a Brown went t o t h e Shamrock Bar t o v i s i t A l l e n Bapp, whom s h e had been d a t i n g . a f t e r 11 p.m., Sometime e y e w i t n e s s E l e a n o r Schwartz came i n t o t h e b a r and t o l d A l l e n Bapp t h a t h i s t i r e s had been s l a s h e d . Both Ba-pp and P a t r i c i a four Brown went out and found t h a t all t i r e s on b o t h c a r s were s l a s h e d . E l e a n o r Schwartz t e s t i f i e d t h a t a s s h e d r o v e up t o t h e f r o n t o f t h e b a r , s h e saw someone moving from t i r e t o t i r e on Bapp's c a r . She d i d n o t r e c o g n i z e t h e p e r s o n , b u t t e s t i f i e d that clean he was shaven w i t h short hair, and w e a r i n g a j a c k e t , c a p , j e a n s and s n e a k e r s . Several days later, a detective of Cascade County S h e r i f f ' s o f f i c e p r e s e n t e d a photogra.phic l i n e u p t o E l e a n o r Schwartz. After narrowing down to two photographs, she p i c k e d a photograph o f d e f e n d a n t a s t h e p e r s o n s h e had s e e n slashing the tires of Bapp's car at the Shamrock Bar on October 2 1 . At time the of her trial, P a t r i c i a Brown divorce from testified defendant to the that from t h e night of o f f e n s e , a t o t a l o f 36 t i r e s were s l a s h e d on h e r c a r . d e f e n d a n t was i n c a r c e r a t e d , no t i r e s were s l a s h e d . the While She a l s o t e s t i f i e d t h a t on one o c c a s i o n , s h e a c t u a l l y saw d e f e n d a n t slash her Bapp and a n o t h e r man whom tires. Additionally, P a t r i c i a Brown d a t e d t e s t i f i e d t h e y e a c h had t i r e s s l a s h e d d u r i n g t h e t i m e t h e y d a t e d P a t r i c i a Brown. Defendant's son t e s t i f i e d t h a t he witnessed h i s f a t h e r s l a s h P a t r i c i a Brown's the evening of the t i r e s o n a t l e a s t one o c c a s i o n . alleged offense, October 21, the On son t e s t i f i e d t h a t h i s f a t h e r d i s p l a y e d a Buck k n i f e and s a i d h e m i g h t c u t P a t r i c i a Brown's t i r e s a g a i n . Defendant's stepdaughter Theresa Brown testified when d e f e n d a n t came t o h e r a p a r t m e n t on O c t o b e r 2 1 , d r u n k and a n g r y , that h e was and c l a i m e d h e would s l a s h t h e t i r e s a g a i n i f h e wanted. Defendant p r e s e n t e d an a l i b i defense. Defendant claimed h e was a t h i s s t e p d a u g h t e r ' s a p a r t m e n t u n t i l 11 o ' c l o c k . was c o r r o b o r a t e d by T h e r e s a Brown and h e r b o y f r i e n d . This Other w i t n e s s e s t e s t i f i e d t h e y were a t a p a r t y w i t h d e f e n d a n t l a t e r that night. A c o m p l a i n t was f i l e d on O c t o b e r 2 7 , 1982. Defendant was a r r e s t e d t h e n e x t d a y and remained i n c u s t o d y u n t i l t h e d a t e o f h i s t r i a l , 182 d a y s l a t e r . On March 1, 1983 d e f e n d a n t made a m o t i o n i n l i m i n e t o p r e v e n t t h e S t a t e from i n t r o d u c i n g e v i d e n c e o f any s u s p e c t e d p r i o r course of conduct. The t r i a l c o u r t a p p a r e n t l y n e v e r r u l e d on t h e m o t i o n i n l i m i n e . was held March 1983, 22, at However, which a n omnibus h e a r i n g time the trial court o r d e r e d a t e n - d a y n o t i c e t o d e f e n d a n t i f t h e S t a t e p l a n n e d on p r e s e n t i n g evidence of o t h e r o f f e n s e s o r a c t s . D e f e n d a n t was n o t given such n o t i c e . The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l : Whether i t was p r e j u d i c i a l e r r o r t o a l l o w t e s t i m o n y 1. of other notice to wrongful the or defense criminal or conduct explanation d e f e n d a n t made no o b j e c t i o n a t t r i a l . without to the sufficient jury where 2. Whether it was prejudicial error to refuse to instruct the jury on eyewitness identification where alibi is the raised defense. 3. Whether the defendant was denied a fair trial by an impartial jury because of an unrelated social conversation between a witness a-nd a juror. 4. Whether defendant was denied a speedy trial. 5. Whether it was prejudicial error not to allow the testimony of a witness. We will first address the speedy trial issue. A delay of 182 days is sufficient to trigger an inquiry into the right to a speedy trial. State v. Fife (Mont. 1981), 632 P.2d 712, 38 St.Rep. 1334. Defendant a.rgues that the 56 days consumed by motions to set trial date and for continuance, made by stand-by counsel while defendant wa.s proceeding pro se, are not chargeable to the defendant. We disagree. Defendant will not be allowed to gain advantage by jockeying between use and non-use of defense counsel. We find counsel's actions were part of, if not essential to the defense. defense, whether lead The motions of counsel for the counsel or stand-by, are properly attributable to the defendant. Although the remaining 126-day delay is troublesome, we find the prosecution was reasonably diligent in pursuing this matter. Nor was preparation of the defense hindered. We hold this delay to be within the permissible limits set by this Court pursuant to Barker v. Wingo (1972), 407 U.S. 514; Cf. State v. Nelson (1978), 178 Mont. 280, 583 P.2d 435; State v. Kelly (Mont. 1983), 661 P.2d 26, 40 St.Rep. 364. Defendant challenges the admission of evidence of prior conduct without notice to the defense. This Court has clearly stated the procedural requirements for introducing evidence of other criminal or wrongful conduct in State v. Just (1979), 184 Mont. 262, 602 P.2d 957: "(a) Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced. The procedures set forth in section 46-18-503, MCA should serve as guidelines for the form and content of such notice. Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted. 'I (b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes. "(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received. only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment." Id. - at 274. The defendant never received the required notice. Nor did the trial court explain to the jury the limited purpose of the prior testimony when it was introduced. The State concedes these procedural errors but argues that defendant is precluded from raising this issue on appeal because no objection was made at trial. We disagree. A district court will not be put in error where it was not given an opportunity to correct itself. State v. Patton (1979), 183 Mont. 417, 600 P.2d 194; State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304. However, in this ca-se the admissibility of the prior conduct testimony was objected to prior to trial. the court a Motion On March 1, 1983, defendant filed with In Limine to exclude such evidence. Though the court did not rule directly on that motion, on March 22, 1983 the court ordered: I1V. The State will offer evidence of other or acts under Rule 404(b), M.R.E. If offenses - notice has not been qiven, it will be qiven in writing 10 days before trial. " We hold defendant's allegations of procedural error are preserved by virtue of his Motion In Limine and the trial court's order. The State also argues that the error is not prejudicial because defendant was in fact aware that the state intended to offer testimony of prior conduct. The prejudice is found in the fact that defendant did not know exactly what acts or crimes he would have to be prepared to defend against at trial, nor did he know the form of such testimony. Had defendant received proper notice, he would have had the opportunity, prior to trial, to evaluate and to move to exclude that portion of such evidence that should not have been admitted. By his Motion In Limine, defendant took sufficient a.ction to settle these issues prior to trial. He was entitled to rely on the court's order that notice must be given. Since this case is remanded for retrial, it is not necessary to address the remaining issues. reversed and remanded to the District Court. We concur: "a,.edlpe4, Chief Justi e L Justices The case is
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