State v. Eklund

NO. 93-188
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT JOHN EKLUND,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0. Lympus, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patrick D. Sherlock, Sherlock & Nardi,
Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
George Schunk, Assistant Attorney General,
Helena, Montana
Thomas J. Esch, Flathead County Attorney,
Ed Corrigan, Deputy Flathead County
Attorney, Kalispell, Montana
Submitted on Briefs: February 3, 1994
Decided: April 5, 1994
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Robert John Eklund was found guilty of sexual
intercourse without consent following a jury trial in the District
Court for the Eleventh Judicial District, Flathead County. Eklund
moved to dismiss the charge due to lack of a speedy trial, and
moved for a mistrial contending that the court allowed the State to
introduce inadmissible character evidence at trial. The District
Court denied both motions. Eklund appeals.
We affirm in part, reverse in part, and remand for retrial.
The issues are:
1. Was Eklund denied a speedy trial since 197 days elapsed
between his arrest and his trial?
2. Did the District Court err in allowing character evidence
to be introduced during cross-examination of Eklund's character
witness?
In June 1992, a neighbor of Eklund's estranged wife reported
to the Department of Family Services that Eklund's 13-year-old
stepdaughter, J.L., had told her that Eklund had molested her.
J.L. stated that the alleged offenses occurred in early April 1992,
when she and Eklund's natural children, six-year-old B.E. and
five-year-old A-E., stayed two weekends at Eklund's house. She and
Eklund had slept on separate couches in the living room where the
television was, while the other two children slept in another room.
She alleged that before he sexually molested her he ordered her to
take her clothes off, and that she complied because she was afraid
he would hit her. Eklund denied that the acts took place or that
2
J.L. slept in the living room with him during the visits. He
stated that his house guest and renter, who were staying with him
during the time of the alleged occurrences, would confirm his
version.
On June 24, :L992, prior to his arrest for the present charges,
Eklund was arrested and incarcerated on contempt charges for
failing meet a release condition resulting from a conviction for
driving under the influence. Therefore, on July 7, 1992, when
Eklund was arrested for charges of sexual intercourse without
consent, he was already incarcerated. On September 2, 1992, Eklund
was arraigned and pled not guilty to the charge.
On October 29, 1992, the court denied Eklund's motion to
dismiss for delay of his arraignment until September 2, 1992.
Also, on January 13, 1993, the court denied his motion to dismiss
for lack of speedy trial after finding that he was not prejudiced
by the delay. A jury trial was held on January 19 and 20, 1993.
During trial, Eklund called Dave Svinth as a character witness.
Svinth testified about Eklund's good relationship with his children
and his nonviolent behavior toward them. In rebuttal to Svinth's
testimony, during cross-examination the State questioned him
concerning Eklund's numerous driving under the influence offenses,
prior incarceration, alcohol abuse, and murder charges in 1974.
The court denied Eklund's objections to the evidence as
inadmissible character evidence. On January 20, 1993, Eklund moved
for a mistrial, which the court also denied.
3
The jury found Eklund guilty of sexual intercourse without
consent. The court classified Eklund as a dangerous offender and
sentenced him to 40 years at the Montana State Prison. Eklund
appeals.
ISSUE 1
Was Eklund denied a speedy trial since 197 days elapsed
between his arrest and his trial?
Eklund was arrested on July 7, 1992, and was incarcerated at
all times prior to his trial beginning on January 19, 1993,
resulting in a delay of 197 days. Eklund argues that the delay
violates his right to a speedy trial under the Sixth Amendment to
the United States Constitution, and Article II, Section 24, of the
Montana Constitution. We disagree.
Whether a defendant's constitutional right to a speedy trial
has been violated is determined by a four-part test set out in
Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33
L. Ed. 2d 101, 117. The four-part test was adopted by this Court
in State ex rel. Briceno v. District Court (1977), 173 Mont. 516,
518, 568 P.2d 162, 163-64. A sensitive balancing of the following
four factors determines whether a defendant was denied a speedy
trial: (1) the length of the delay: (2) the reason for the delay;
(3) the assertion of the right by the defendant; and (4) prejudice
to the defendant. State v. Thompson (Mont. 1993), 865 P.2d 1125,
1135. All four factors are weighed by considering the facts and
circumstances of each case. Thomoson, 865 P.2d at 1135.
4
The first factor of the Barker test, length of delay, triggers
further inquiry into the other three factors; it is not necessary
to consider the other factors unless the length of the delay is
presumptively prejudicial. ThomDson, 865 P.2d at 1134. When
considering the length of delay, no regard is given to which party
caused the delay. ThomDson, 865 P.2d at 1135. A delay of over 200
days will usually trigger further analysis. Thompson, 865 P.2d at
1135. In State v. Bartnes (1988), 234 Mont. 522, 764 P.2d 1271,
this Court completed a full analysis where there was a delay of 175
days. Here, 197 days is presumptively prejudicial to Eklund, given
the close proximity to the 200-day trigger. The State has the
burden to provide reasonable explanation for the delay and to show
that Eklund was not prejudiced by the delay. State v. Curtis
(1990), 241 Mont. 288, 299, 787 P.2d 306, 314. In analyzing the
three remaining factors, no particular factor is determinative.
ThomDson, 865 P.2d at 1135.
The second factor of the Barker test, reason for the delay, is
analyzed by first allocating delay to the responsible party.
ThomDson, 865 P.2d at 1135. Here, the State and Eklund agree that
the reason for the delay was institutional due to the clogged court
system. The delay is chargeable to the State, however,
institutional delay "weighs less heavily against the State than
does purposeful delay." ThomDson, 865 P.2d at 1135.
Both parties agree that the third factor of the Barker test,
the defendant's assertion of the right to a speedy trial, has been
met.
5
The fourth factor of the Barker test, prejudice to the
defendant, is analyzed by considering its three parts: (1) pretrial
incarceration: (:2) anxiety and concern; and (3) impairment of
defense, the most critical factor. ThomDson, 865 P.2d at 1135.
After applying these three parts of the fourth factor to this case
we conclude that Eklund was not prejudiced by the delay.
Eklund argues that he has met the requirement of pretrial
incarceration because he was incarcerated at all times prior to his
trial. The State argues that he would have been incarcerated
regardless of the pending charge and trial due to his incarceration
for an unrelated offense. Eklund replies that the State's argument
is weak because Eklund's memorandum for motion to dismiss for lack
of speedy trial stated that the Justice Court would release him
from the sentence for his driving under the influence offense if
released from the present charges. Our review of the record fails
to show sufficient evidence to resolve this argument. However,
based on the further discussion in this opinion we need not decide
this point.
Eklund argues that he has met the next part, anxiety and
concern, because anxiety and concern are inherent in the experience
of being incarcerated for 197 days. He also argues that due to
incarceration he was unable to locate his witnesses, and being
separated from his friends caused him anxiety.
The presence of anxiety and concern is difficult for a
defendant to prove, and the State is presented with the "near
impossible burden of proving that it does not exist." Curtis, 707
6
P.2d at 316. However, the State's burden to show lack of anxiety
lessens considerably when marginal evidence of anxiety is
presented. Curtis, 787 P.2d at 316. Here, Eklund's argument that
he was unable to contact his witnesses and he missed his friends
appears to us as marginal evidence.
Eklund argues that he has met impairment of defense, because
he was unable to locate his house guest and renter as defense
witnesses, and all his witnesses experienced memory loss due to the
delay. However, he provides no evidence that his defense was
impaired by the delay, and the record reveals that he did not
attempt to locate witnesses until they were unavailable.
On January 13, 1993, at the hearing for motion to dismiss for
lack of speedy trial, Eklund testified that he knew the location of
potential witnesses in July 1992, but waited until October 1992 to
locate them for his defense as alibi witnesses. He also testified
that he lacked evidence to prove that the witnesses' memories were
dimmed because neither he nor his attorney had contacted them.
Eklund next argues that B.E. and A.E., his children who were
present in his home during the alleged offenses, had experienced
memory loss due to the delay. In State v. Scott (1993), 257 Mont.
454, 459-60, 850 P.2d 286, 289, the defendant argued that due to
the delay of his trial, his child witnesses were unable to remember
important details concerning whether the defendant sexually
assaulted another child, thus impairing his defense. However, this
Court stated that the defendant had failed to show how he was
prejudiced by providing details of the children's memory loss;
7
rather the children's memory loss was beneficial to the defendant
because they could not remember the circumstances of the offense
and give testimony against the defendant that he sexually assaulted
the child. Here, at the end of the trial and at Eklund's request,
B.E. and A.E. were examined by counsel and the court: after the
examination neither child was called to testify. Neither of the
children's transcripts support that their testimony would have
benefitted his defense, and he fails to show how he was prejudiced.
We hold that the District Court did not err in denying Eklund's
motion to dismiss for lack of speedy trial.
ISSUE 2
Did the District Court err in allowing character evidence to
be introduced during cross-examination of Eklund's character
witness?
On January 1.5, 1992, prior to trial, Eklund filed notice of
the character witnesses he intended to call at trial. During the
jury trial, Svinth, Eklund's character witness, responded to
questions on direct examination and testified as follows:
Q. Did you know whether or not he exhibited any harsh
words or discipline toward any of the children?
A. None. In fact, maybe to the opposite. In fact, he
didn't see them as often as he would have liked,
really. Be was probably the opposite, you know,
letting them get away with more than I would have,
myself.
On cross examination, the prosecutor for the State asked the
following:
Q. Why is it, do you think, that Mr. Eklund didn't get
to see his kids as much as he liked?
8
A. His drinking problem, I am sure, was a big factor.
Q. He would rather be out drinking and carousing
around, as opposed to taking care of his family?
A: It was a factor.
EKLDWD'S COUNSEL: Your Honor, I object to that question
as calling for a conclusion.
THE COURT: Overruled.
The State continued to cross-examine Svinth about Eklund's
convictions for driving under the influence, and his incarceration.
The State then asked the witness:
Q. Do you know what Mr. Eklund is charged with?
A. No, not: really.
Q. He is accused of using threat of violence to coerce
his thirteen-year-old stepdaughter into allowing
him to have intercourse with her. Does it surprise
you that he has threatened her with violence, that
he cou1.d be violent?
A. I have never known him to be violent.
Q- How long have you known him?
A. Since the mid-seventies.
Q. And you have never known him to be violent?
A. NO.
Q. Were you aware of a charge filed against him in
1974?
A. NO.
EKLDWD'S COUNSEL: Your Honor, I object to this question
as well. Improper cross-examination.
THE COURT: Overruled.
Q. Were you aware, in 1974, that he was charged with
murder7
9
A. Yeah, I have been filled in with bits and pieces
from my sister.
Q. Did she tell you that he took a man by the name of
1VFoxV8 out hunting, shot him in the head, and dumped
his body in a barrow pit?
A. I am not aware of the particulars. I don't know if
she was even--
The State continued to ask questions concerning prior reports that
Eklund was emotionally and physically abusive toward his children
while he was intoxicated. Eklund objected to the questions as
introducing new evidence which the court denied.
After trial, Eklund moved for a mistrial, contending that the
State had introduced inadmissible character evidence because Eklund
did not open the door to his character as to truthfulness or that
he was law-abiding, but had presented testimony to show generally
that he treated his children well and never hit J.L. to rebut her
testimony that he threatened her. The court denied this motion by
stating:
The Court is satisfied that the Rules of Evidence--for
the requirement precedent to allowing the State, in this
case, to produce evidence as to certain of Defendant's
character, the requirements of Rule 404, the Court is
satisfied with that being opened up, first by the
Defendant, since beginning with counsel's opening
statement, and then various questions on
cross-examination, as well as Defendant's testimony; and
the motion is denied.
The State contends that Eklund opened the door to all
legitimate cross-examination of that witness when he called his
character witness to support his good reputation that he was a
kind, caring, and nonviolent father pursuant to Rule 404(a)(l),
M.R.Evid.
10
Eklund argues that the court erred in overruling his objection
to the state's statement that he was charged with murder in 1974.
Eklund denies that he was charged with murder in 1974. He admits
that he was convicted in 1973 of manslaughter, a crime of
negligence rather than of intent. He argues that the statement was
highly prejudicial and inflammatory and impossible to defend
against, and that he did not receive a fair and impartial trial.
We agree.
A mistrial may be granted upon a demonstration of manifest
necessity, along with the denial of a fair and impartial trial.
This Court will not disturb a lower court's denial of a motion for
mistrial unless there is clear and convincing proof of error.
State v. Dixon (Mont. 1994), 51 St. Rep. 135, 137.
A new trial may be granted if there is an "irregularity in the
proceedings of the court, jury, or adverse party or any order of
the court or abuse of discretion by which either party was
prevented from having a fair trial." Section 25-11-102(l), MCA.
Generally, character evidence is not admissible to prove
conduct. Rule 404(a), M.R.Evid. Rule 404(a)(l), M.R.Evid., allows
the prosecution to rebut the accused's offer of a pertinent trait
of character. Rule 405(a), M.R.Evid., provides the following
method to prove character:
Reputation or opinion. . . . proof may be made by
testimony as to reputation or by testimony in the form of
an opinion. On cross-examination, inquiry is allowable
into relevant specific instances of conduct.
11
The State claims that the cross-examination properly rebutted
Eklund's character evidence. State v. Clark (1984), 209 Mont. 473,
682 P.2d 1339. In Clark, the defendant was charged with sexual
intercourse without consent with his young stepdaughter whereby he
offered character evidence that he was gentle and nonviolent with
his children and others, and concerning his propensity for
truthfulness. By presenting character evidence, the defendant had
placed his character at issue pursuant to 404(a)(l), M.R.Evid.
Using the method in Rule 405(a), M.R.Evid., the prosecution
properly cross-examined the defense character witness by asking
whether he knew the following: the defendant had a prior armed
robbery conviction; the defendant forcibly escaped from jail by
overpowering the jailer; and other violent crimes the defendant
committed while serving in Vietnam. Clark, 682 P.2d at 1347. This
Court found that the evidence was relevant to rebut the defendant's
good character evidence because the defendant denied the charges
and denied any violent acts toward the stepdaughter; also, this
Court noted that the court gave the jury a cautionary instruction.
Clark, 682 P.2d at 1348.
The present case is distinguishable from Clark. The evidence
in Clark concerned prior convictions that depicted the defendant's
violent character, and the probative value of the evidence
outweighed the unfair prejudice to the defendant. Here, the State
cross-examined Eklund's character witness about Eklund's prior
murder charses to rebut his nonviolent character evidence: the
actual conviction for these charges was for manslaughter. &
12
State v. Benton (1992), 251 Mont. 401, 404, 825 P.2d 565, 567,
where danger of unfair prejudice of evidence of charses, not a
conviction, clearly outweighed the probative value.
Character is defined as the "aggregate of the moral qualities
which belong to and distinguish an individual person; the general
result of one's distinguishing attributes." Black's Law Dictionary
232 (6th ed. rev. 1990). While the prosecution may rebut
defendant's offer of character evidence, the prosecution must
present legitimate and relevant character evidence, and "the
accused's entire life should not be searched in a effort to convict
him." State v. Heine (1975), 169 Mont. 25, 29, 544 P.2d 1212,
1214.
After the court overruled Eklund's objection to the State's
inquiry concerning murder charges, the State asked the following:
"Did she tell you that he took a man by the name of I*FoxIt out
hunting, shot him in the head, and dumped his body in a barrow
pit?" This Court, in State v. Jones (1914), 48 Mont. 505, 517, 139
P. 441, 446, condemned questions in cross-examination where the
question assumes the existence of facts not admissible as
independent evidence, citing People v. Mullings (1890), 83 Cal.
138, 23 P. 229:
It is quite evident that the questions, and not the
answers, were what the prosecution thought important.
The purpose of the questions clearly was to keep
persistently before the jury the assumption of damaging
facts which could not be proven, and thus impress upon
their minds the probability of the existence of the
assumed facts upon which the questions were based.
13
This Court said "[wlhether or not such questions are answered
OX- not, the putting of them his condemned by the courts and
text-writers as gross misconduct." Jones, 139 P. at 446. In the
present case, the inquiry was improper and was intended to show
Eklund had a violent character, and the prejudice to him outweighed
the probative value under Rule 403, M.R.Evid. We conclude that
Eklund has met his burden of showing clear and convincing evidence
of error.
Section 46-20-701, MCA, provides that any ruling of the trial
court that affects the respondent's substantial rights will be
deemed harmless unless the record shows that the error was
prejudicial. The test to decide if the prejudicial error requires
a reversal is "whether there is a reasonable possibility that the
inadmissible evidence might have contributed to the verdict."
Brodniak v. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73,
(quoting State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262,
1266). In our inquiry, we must examine the totality of the
circumstances in which the error occurred. Brodniak, 779 P.2d at
74.
In the present case, the following testimony was presented by
the State: J.L.'s testimony concerning the alleged offenses; J.L.'s
mother who gave general testimony: the neighbor's testimony who
reported the alleged offenses: and the social worker's and
detective's testimony who were involved in the investigation.
Because the jury reached its verdict by considering the credibility
of all the witnesses, the misleading evidence must have created
14
great prejudice to Eklund for the jury to know he was charged with
murder. We conclude that there is a reasonable possibility that
the inadmissible evidence of Eklund's murder charge denied him a
fair and impartial trial.
Because we have found reversible error on the evidence
concerning murder charges and remand for retrial, we decline to
discuss further evidence concerning Eklund's driving under the
influence convictions, that he had abused alcohol, and that he had
been incarcerated.
We affirm the District Court's denial of Eklund's motion to
dismiss for lack of speedy trial, reverse the District Court's
denial of motion for mistrial, and remand for a new trial.