STATE v WALKER
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NO. 96-062 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 APPEAL FROM: District Court of the Thirteenth Judicial In and for the County of Yellowstone, The Honorable Robert W. Holmstrom, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Carrie Deputy For L. Garber and Jeffrey G. Michael, Public Defenders, Billings, Montana Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena, Montana Dennis Billings, Paxinos, Yellowstone Montana Submitted County on Briefs: Decided: Filed: Attorney, August December 22, 1996 27, 1996 Justice Charles E. Defendant Erdmann Dale R. delivered Walker commitment entered by Yellowstone County, 1. on appeal Did still-frame the him are felony the the Judicial of court. judgment District and Court, forgery. We affirm. as follows: Court made of from Thirteenth District photographs opinion appeals convicting The issues the the err from by the admitting original into evidence bank surveillance Walker's motion tape? 2. Did a mistrial the District when one of familiar with 3. Walker Did a new trial the Court the State's from past District on the err witnesses forgery Court ground of in denying err jury testified that for he was investigations? in denying Walker's motion for a man identifying misconduct? FACTS On the himself the Security Federal Bergstrom The check from recognize approved with both security the if approve customer. the customer teller Mary Montana, by the account signatures Jo Kellison and attempted Edward and what Ripley, before cashing transaction opened Mary Jo that an account. 2 Co. appeared Jo requested She told cash to of Wendy Jo Bergstrom. Mary the at to D. Jones numbers. Vickie to 1994, approached custodial social refused 13, was issued supervisor, her Vickie on the was endorsed corresponding December Bank in Laurel, The check check. L. of L. Bergstrom as Terry a $2000 Terry afternoon because the to be approval the she check check. did would not be The account customer and which presented identified paperwork the eight Later of branch trying Bergstrom. into the along savings received Bank. Mr. Federal to cash $2000 completing the was deposited account, check into and $500 was account kit to cash the ID and there the Billings was at the Billings had just was calling suspicious received earlier that check bank became Vickie Bergstrom he made from and the verification. Mr. not a call Bergstrom a $600 counter deposit branch a picture license a new checking Vickie savings driver's $1000 with and After accounts, afternoon, a signature the checking checks. she knew that Billings have $500 Bergstrom, Security request from open the a a temporary counter that branch since L. account, containing both Jo with to to Mr. open as Terry him checking to Mary necessary distributed to agreed since $500 cash day. Mr. was no signature She back told Bergstrom the not on file card did with the the name "Terry bank. The Laurel branch Bergstrom" through processed a mortgage The bank going their attempted on. discovered that then contacted the Laurel tape from specialist in Police the contact Jo was able and bank subsequently computer loan to Mary of the "Terry and discovered name of Terry to L. ran "Tim the Bergstrom" the and Terry Bergstrom reach that to bank had Bergstrom." find out Tim Bergstrom was a woman. obtained the what was residence The bank police. Officer the bank and with the Billings Bryan Fisher asked Officer Police 3 Brett Department, surveillance Lund, to view a forgery the tape and the forged check. After videotape, Officer by Walker, whom he recognized Officer the lineup to present Lund believed first Mary during identified the signature previous forgery photo consisting Fisher employee transaction. No. 1 as of six showed the who had been All the the investigations. Officer bank and had been forged lineup and a third Bergstrom man in signature the was Walker. Vickie, the the a photographic of which Jo, that from Lund assembled pictures, viewing three man who posed women as Terry Bergstrom. On January with forgery, through entered years its in State pursuant trral Walker Court the a jury 1995, verdict. District 1995, a felony, 14, guilty 19, to On September and Montana State Prison. the still-frame 28, commitment, District court photographs On June resulted a new trial, 1995, the sentencing appeal by in which District Walker admitting 12 a the Court to twenty followed. 1 err made from Information which This ISSUE Did for by MCA. 5 45-6-325, a motion judgment the Walker was conducted filed denied. charged the original into bank evidence surveillance tape? Before tape was would the trial, incompatible only bank without the play would well not with on the release surveillance. and a number of State still-frame learned a normal type its of that machine 4 were surveillance machine. owned because had a copy photographs bank's videotape machine The State the of then by the it the The bank would be videotape produced tape and left made from the The original copy. videotape court videotape machine but since jury to allowed the copy was not allowed of the the then was played the quality view much the the jury of than the tape of copy clearer State for the on a normal tape. the was poor, original the The quality and the to admit the still photographs appeal that the District Court court into evidence. Walker argues admitting the evidence rule" Walker bank photographs into as codified claims required on that the in the jury to view the argues that evidence rule" erred "best State District grounds for demonstrate violation of through of would the 1003, best the "best M.R.Evid. evidence surveillance to into prepared true to examination statement talk of to about the rule tape on the of Officer the the his court of the prosecutor and the I'm 5 error to if the were prosecutor be the the he they photographs State's made the indicated object is cannot direct following it was time photographs: going the indicated whether counsel if rights. that defense the Walker photographs During the such attorney tape. Fisher, DEFENSE COUNSEL: Well, evidence that the --- even that substantial as to original videotape and since suggested foundation after preserve photographs, Walker's The court the properly conviction affected a proper not appeal the admissibility evidence. copies for discussions the lay did admitting error pretrial object offered in Walker reversing how the During to 1001 original argument Court in in machine. The were Rules requirements videotape not evidence erred on the best THE COURT: Well, bank. you may have to call a person DEFENSE COUNSEL: I don't know that. right to see the entire tape, as well. THE COURT: Let's Officer Fisher which were lack of State with owns copy of the videotape from the Defense lay the proper Michael store the and that the photographs Defense counsel custody The for the still who made the photographs. reflected were the the accurate of After content of reproductions photographs lack Taylor into court directed the attorneys cautioned the prosecutor that a proper testimony from foundation evidence. problems. The for a witness. individual accurately offered objected as and was the copy State for objection. foundation Taylor and reproduced the the objected witness. the tape, photographs counsel sustained that original the still identify court called and sound testified the next then a video the would its to videotape. and it State asked the foundation The Taylor then made from photographs has jury the the proceed. was indicated The from counsel if Defense a number counsel best that original additional any was the the foundation to that original prosecutor tape about it would require court asked defense tape the tape being the not but and not lay the the jury, and if to allow the jury 6 where chambers of The he did should chain foundation witnesses. doubt responded evidence stated the he had of into and indicated the proper the quality to original. view copy. that The foundation, was poor, the copy. the court show lay The court would jury to see counsel the then that the the videotape. prior care where Court into jury that evidence on three grounds: surprise. after that therefore waived the t1 ne State court original offered tape jury. overruled I that time going which Walker into at this through objected custody; was to not be After were into and objections he regard. events admitted offered of two that were photographs Honor, 4 as then were then chain first agreed the and copy (2) the in depicted PROSECUTOR: Your Exhibits State's photographs]. his long defense.counsel foundation; photographs the "as original, The State whereupon of during the seeing to waive and stated it, defense without agreed the there." any objection camera counsel for assured photographs play counsel still photographs surveillance lack be necessary court custody and by the defense recess, of photographs, The surprised that chain and the (1) the defense you go from still would The view point, and viewed the not videotape reconvened evidence (3) would that it photographs. regarding introduce don't whether still At objection you consider and, truly used and establishing taped was present by the in the bank bank, evidence. time 8 I move into evidence [the still-frame THE COURT: Any objection? DEFENSE COUNSEL: No objection, This object court to an alleged on appeal. 151, has 900 P.Zd Hando 281, Your consistently error v. 284; held during trial PPG Industries, Bridger v. that a party's precludes Inc. Lake 7 Honor. raising (1995), (1995), failure to the issue 272 Mont. 146, 271 Mont. 186, 193, 896 P.2d 875 406, P.2d 307, failure to waiver of the a was indicates that evidence, Walker overruled The that earlier evidence" are objection evidence that rule. opportunity is precluded not grounds and and that the offered into if he had any objections were objections. for had all been lack of withdrawn admitted into evidence free violated the provisions of evidence once that the the on the Walker proper in original to of bank. an adequate and 8 timely the was never given issue the "best violated hold to counsel's the and we therefore evidentiary of being Court the was laid Defense videotape District to contents photographs matter this the constitute the the the assented foundation represented sufficient raising videotapes were prior was present As a result, from the counsel record and surprise accurately admission to rule both defense the indicates to allusions that MCA. contrary, His admitted when Walker a M.R.Evid. clearly they constitutes 5 46-20-701(Z), evidence" asked the that photographs photographs 1003, being of 151 On the still custody, that through photographs admission withdrawn. the in 127, provides trial shows on "best of record videotape the no. objection during transcript said and the 1001 depict to MCA, as provided was specifically chain any the when counsel foundation, Rules that 265 Mont. 46-20-104(2), except never (1994), objection photographs "objection" from timely argues still-frame Arlington Section objected Defense v. objection sufficiently or State 321. make Walker the 410; that on appeal. best the Walker ISSUE Did the District Court err mistrial when one of the with Walker from in State's familiar 2 past On direct recognized dealings with on Mr. investigations." counsel had to provided evidence the of crimes 602 P.2d 262, Mont. 136, notice P.2d Court admonish made to prior apparently Walker jury 344, 349, 912 P.2d that the prejudicial the Officer effect court's Lund's that past forgery court prosecutor if the intended to introduce it directed State in v. Matt (1991), 249 The the to State prosecutor counsel motion not admitted then consider for no Just a mistrial. that, the to that moved and stated investigations instead, testimony. completely Officer it Court disregard Lund any had conducted Walker. Officer relies 801, Lund's on State 804, of where evidence v. statement Anderson we stated of a prior admonition cannot testimony. 9 was (1996), that Moreover, on a defendant. curative to past and the the was admonished introduction regards had 184 that Walker inadmissible. have he (1979), involved argues "I that Just jury references testified v. denied and the which asked Defense reconvened he was by State 52). the a (as modified had been given. would objected notice for as required 957 Mont. The District in defendant past 814 . The court chambers. that because counsel Defense testified Lund videotape Walker motion investigations? Officer the Walker's witnesses forgery examination, Walker denying it crime eliminate 275 Mont. is inevitable will Walker clearly have argues the taint some that of We review to determine the court's a district 303, whether ruling 306, criteria 903 the is denied Oct. 17, Court's role convincing from alleged No. at 56. cured if Moreover, there is might have at 9. the Lund's forgery acts. Thus, is (Mont. this clear and erroneous. rule and stated that: not be to the that he recognized was evidence of The State acknowledges statement should the has Nevertheless, statement investigations or either Ford v. is Just is defendant there ruling modified for other that not no have been evidence may evidence. stated the (1993), v. the the on a motion State whether court's Officer was given. We have op. determine the wrongs, into Greytak to trial. slip 273 Mont. when there where that clarified of other crimes, wrongs or acts may unless there has been written notice that such evidence is to be introduced. crimes, received (1995), recently or impartial that Rendon a mistrial necessity a mistrial evidence use when ruling 95-158, previous notice State and v. grant we announced 814 P.2d Walker fair for convincing should will evidence Evidence received defendant be court remains In u, and a motion We have 185. manifest 1996), clear 183, of a is of State The,court been denial erroneous. P.Zd a demonstration just there district a mistrial. Matt -I court's that jury 262 Conrad an error is Mont. (19901, we have a reasonable contributed 401, that admission to disregard 404, Mont. the 865 1, reversible possibility to the admonished 241 held in that conviction. 10 P.2d 19, it. 1096, 785 error the of P.2d exists State 1098 v. (citing 185, 190). only where inadmissible State v. evidence Cline (1996), 275 Mont. 57-58, 242 Mont. (1990), case, 46, Officer videotape 279, Lund and familiar to Fisher line-up to Fisher that and as the Lanaya (Citing P.2d 464, 466). that the jury the bank all three on Lanaya on the day as Terry made in-court the entire on bank Officer from the Vickie, of photo third question. identifications was Officer a a Bergstrom. the check presented Walker Earl present heard Aafedt, in the forged he v. Walker already women identified man who posed In the crime and State recognized had the Jo, in he handwriting Mary also 1179 following Vickie, that 1171, 790 Moreover, present line-up 283, Walker's him. stated P.2d testified that testify employee 909 photo Mary Walker Jo, during trial. In light combined of with the court's determine that contribute to Walker's statement into prompt Officer conclude convincing motion not the that the for err that it the case District the the new trial During the court District on the ground deliberations requesting err jury the the not Court's case, jury, did Officer not Lund's error. contain We clear denial that we of the and Walker's court did motion. Court of the harmless and we hold ISSUE Did does this itself, of therefore, was erroneous denied by Receipt this in to statement, was, in presented admonition conviction. record a mistrial when Lund's record evidence evidence use in 3 denying Walker's motion for a misconduct? jury of 11 submitted a written a magnifying glass. question to Defense counsel objected request. The and jury the wrote court the wrote court the jury a second back note denying the as follows: Your Honor, I feel it is necessary to inform you that after you told us you 'couldn't provide us with a magnifying glass' we discovered that a number of the jurors have bifocals which magnified and one of the jurors had a small strip of plastic used to magnify. These proved very helpful to us, but I hope we didn't impune [sic] the integrity of this jury. As a result, that the defense jury for outside mistrial of what it stated that it would until Following constituted that transcribed had defendant and appeared on the v. George Walker's to (9th Cir. 900 court's 1995), of jury her moved to during to help Relying~on 1078, his the a new supporting statements of plastic them defendant's trial. 56 F.3d for device The juror had used a piece on the motion magnification attached purse The on the a two jurors. a tattoo videotape that identify arm which United District the had States Court denied motion. We review trial of the from view from an a verdict. Walker Walker did courtroom. ruling verdict, use grounds own and the reserve jury's on the its in reached evidence. taken on heard guilty the members a mistrial glass jury interviews that member the jury's extrinsic indicated one after the arguing brief for a magnifying Court trial, moved created investigation District counsel a district to determine P.2d at decision 283. whether Absent concerning court's the an ruling court abuse whether 12 on a motion abused its discretion. of or not discretion to grant for the a new Hando, district a motion for a new trial will 307, 888 P.2d 310, be affirmed. On appeal, does not or Walker argue evidence, Instead, that that 606(b) relies v. the resulted from Rule testify to the the v. Brogan juror affidavits internal v. We must It only external determine the jury. if influence if to to 1290, to 1050, and argue that prejudice which juror jury's attention. 900 P.2d we held a verdict based 1, 637 P.2d 809, use or internal that the juror statements prejudicial of the influence magnification In 284, at 8, device 287 upon (citing magnification upon the jury. constitutes an may be considered was brought influence 13 that 813). information external not prejudicial 900 P.2d whether may except Broqan, the of a extraneous impeach of Examples Walker deliberations the 156, 196 Mont. an external jury's to jury. determine extraneous as defined 849 P.2d that whether be used (1981), use the 272 Mont. on the constitutes is during brought may not device magnification of provides se. misconduct. (1995), therefore 468, presumption pertains Elderkin per misconduct. 764 P.2d jury occurred influences Harry 257 Mont. the prejudicial jury He extrinsic makeshift in 53, argument. information" resulting was improperly State the M.R.Evid., Cl), is prejudicial rebut information information of 235 Mont. alleged 606(b) 269 Mont. constitutes glass use (1993), (1988), as to what when that McNatt failed (19951, different glass a magnifying M.R.Evid., v. DeGraw State a slightly "extraneous on State State presents argues Cl), Hatfield use of a magnifying constitutes in Rule v. 901. use of Walker device 899, State include a to before juror's telephone call litigation by the bringing a newspaper the jurors to Sherrodd of Appeals ' 262 Mont. for constitute a recent magnifying 56 F.3d 1986), 783 1084. at 841, 843, magnifying glass was and corrective eyeglasses States v. Miranda noted that a magnifying not extrinsic Cir. defendant glass conceded, device Walker's does argument "extraneous evidence" presents a magnifying not that prejudicial is glass a subtle does not cannot exposing the jury to extraneous the makeshift Brewer as be considered 14 Cir. use of juror's a in of United the court involving a glass jury's use is of a evidence. device to Since extrinsic created "extrinsic a jury's evidence, an external was use we influence information. device a use 1286, opposed prejudicial magnification (9th a extrinsic constitute use resulted. the distinction. such of not use of the magnification that use did a magnifying that constitute conclude jury's itself, 1283, that Court the misconduct clear information" only Circuit Finally, juror v. 1109). that from "as he must," It held for that v. 986 F.2d alleging room concluded evidence. 1993), evidence. magnification of (9th Ninth or Geiger 1106, of States court examine jury no new evidence indistinguishable to the the in previous (citing court United F.2d the 287 the to an accident, 866 P.2d and that In of into from glass, evidence at scene 510-11, decisions regard trial P.2d In George, extrinsic Georse, the 900 505, direction. of the about Brogan, three with visiting article see. to use information plaintiff, (1993), We turn jurors obtaining an internal The influence on therefore its not be used Moreover, device that an the we were the to the use of the jurors did not help ah, identify even more unsure. We for the conclude discretion assume when it that thus identify not that in Thus, State to the not device her magnification statement the clearly prejudiced that defendant the use of the and that "you and "it defendant" only made denied was no threshold showing Court abuse District Walker's motion for did not a new trial 2fzszJustice We concur: juror indicate misconduct. Affirmed. may rebut. that there the allowing does the as the I' statements verdict. record said could juror magnification the strip the influence, One of prejudice jury if impeach external jury's plastic really to and be considered, to defendant. us, even was statements deliberation based of its on Justice Terry N. Trieweiler concurring in part and dissenting in part. I concur and third with its court's with the of its advised the first by of in crimes acts in that with that the the can normally past is evidence, even rule. Although found is by the familiar accused of See Rule safeguards within See Statev.Matt (1991), was other defendant guilty 16 very on of the 249 Mont. same kind that basis. similar of evidence prior That acts is which the jury is why we of exceptions 136, jury Police consideration one of forgery, The committed M.R.Evid. from conviction. types for evidence of has evidence 404(b), falls him prejudicial why possibility Billings the with a crime most is the do and the forgery. for I evidence, of by facts, issue. to Walker's Walker and was the no reasonable employed investigated of that on other and convicted That it based contributed with procedural when pertain there jury, offered. there the that among the inadmissible. established to detective a person be which law, the he had past Brett committed recitation evidence the crimes the majority's conclusion a alleged Detective error. to that Evidence other was charged Department have that inadmissible Walker general conclusion disagree admonition have majority's regarding analysis disagree was resolving was harmless I do not that conclusion the from testimony defendant nor majority's issues. I dissent Lund's the such to the 814 P.2d 52. the could jury apparently did not consider sending photos the fact were the identity the Walker's reported video arms bank's have bothered they video requested tape, glass to The forger and hands not which jury's tape. actual by eye witnesses and told view the uncertainty was apparently were tattooed who observed still caused by and no tattoos the forger on the the District consistent with day question. Furthermore, admonition, events I while decisions, would well following required to and attorneys retreated the of presence courtroom the Detective Lund's forgery jury was previous that very While admonition jury Detective been there was Lund had be a jury could simply told court prior had to inappropriately the other about and 17 outside to the disregard be obvious the them in to the something District Court it. circumstances the judge return to was involvement told defendant be effective, that a discussion regarding so concerned may trial the of obviously the their it course then upon time, the prior counsel for by our Walker's record; finally, Court's testimony all, courtroom instructed otherwise have to and By that significant, not the testimony investigations. jury would jury; of on the from the improper First an objection In fact, nothing. Lund's significance. state and absolutely Detective its that conclude intended accomplished emphasized The the in a magnifying bank's of would Judge to view had used from or it District which they that conclusive, the with that taken about in to equipment court the evidence notes two better the the Billings this in which was not Police a proper one of Department them. had reason other that to believe documents could For Issue these 2. I person, past. from the deciding reasons, would minds I dissent conclude with those Malt, Walker Court, for in therefore, of the kind those the its a mistrial. 18 of information with the resolution majority s testimony by the defendant procedural was had forged entrusted because committed abused forgery, guilt. from that compliance of was not Walker's allegedly necessary accused That crimes District motion the for regarding were in this be erased responsibility without that safeguards denied discretion was in of given the past which we held trial and the when it denied his a fair
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