                                                                                        December 29 2008


                                         DA 07-0690

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 441N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

BLAINE CHRISTOPHER FADNESS,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Twenty-First Judicial District,
                      In and For the County of Ravalli, Cause No. DC 06-178
                      Honorable Jeffrey H. Langton, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Colin M. Stephens, John E. Smith Law Offices; Missoula, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Sheri K. Sprigg,
                      Assistant Attorney General; Helena, Montana

                      George H. Corn, Ravalli County Attorney; Hamilton, Montana



                                                  Submitted on Briefs: November 26, 2008

                                                             Decided: December 29, 2008


Filed:

                      __________________________________________
                                        Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed

as a public document with the Clerk of the Supreme Court and shall be reported by case

title, Supreme Court cause number and result in this Court=s quarterly list of noncitable

cases published in the Pacific Reporter and Montana Reports.

¶2     Blaine Christopher Fadness (“Fadness”) was convicted by a jury of three counts of

attempted deliberate homicide. He appeals from the judgment on the basis that the

District Court denied his motions to exclude certain items that were found in his vehicle

as being irrelevant. We affirm.

¶3     We address the following issue on appeal: Did the District Court err in admitting

certain items at trial, including several firearms and firearm accessories?

                               STATEMENT OF FACTS

¶4     Fadness shot at three different moving vehicles while driving on U.S. 93 south of

Darby, Montana the night of September 11, 2006, hitting each vehicle almost dead center

in the driver’s or passenger’s door. In each case, Fadness was driving south and the

victim was driving north when Fadness fired the shot. The shootings occurred after dark

over a period of about 22 minutes.

¶5     One driver, Kaye Fixsen, was hit in the knee and subsequently had to undergo

surgery to have the bullet removed from her body.



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¶6        In the other two cases (victims Pete Franks and William Lee), the bullets did not

pierce the inner walls of the vehicle doors, so the victims suffered no physical injuries.

¶7        None of the victims were able to describe with any specificity the vehicle from

which the shots had been fired. However, the first victim, Mr. Franks, reported

immediately to the Darby marshal’s office after realizing that his vehicle had been struck

by a bullet. At the marshal’s office, he was able to observe a traffic camera video and

identify a suspect vehicle. Using the information obtained from the video, law

enforcement officials arrested Fadness, still driving south on U.S. 93. When Fadness was

arrested, deputies immediately observed a Walther .22-caliber pistol with a laser sight

and a silencer lying on the front seat of his vehicle, within arm’s reach of the driver.

They also discovered a Beretta .22-caliber pistol on the front seat within reach of the

driver.

¶8        A search warrant was issued for Fadness’s vehicle. In that search, deputies found

four more firearms (a Colt .45 pistol, a Ruger .357 Magnum revolver, and two .308-

caliber rifles, one “Savage Ultimate Sniper” and one Springfield). Deputies also found

specialized accessories for the firearms (e.g., a range finder, tactical holsters, and speed

loaders), a considerable amount of ammunition, twelve spent .22 cartridges, equipment

normally used by law enforcement officials, and some specialized outdoor equipment

(e.g., a night-vision device, and tactical flashlights designed not to disclose the user’s

location. All of these items were admitted into evidence at trial.




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¶9     Subsequent testing indicated that the Walther .22, with the laser sight and silencer,

was the gun Fadness had used for the shootings that night. The laser sight illuminates the

target and displays a laser dot at the point where the bullet will hit.

¶10    Fadness admitted the shootings at trial, but claimed, “I never thought I was going

to hit anyone or any thing.” When asked why he had shot at the victims, he replied:

“Just stupid, angry, just nothing more than just frustration at high beam. Try to clip them

thinking they’re going to dim them down. No reason, no good common sense, anything.

Just throwing a water balloon out the window would have been about the same stupidity,

but different results.”

                                       DISCUSSION

¶11    Fadness admits that he fired the shots and that he used the Walther .22 pistol. He

objected, however, to the introduction of the other weapons and items found in the

vehicle. He filed a pre-trial motion in limine and made a formal objection in chambers

prior to the commencement of the trial. He contended that the evidence was very

prejudicial and was not relevant to the issue of whether he was guilty of the offense

charged. The State contended that, since Fadness admitted to the shooting, the primary

issue for the jury was Fadness’s criminal intent. The firearms and other items were

relevant because they were among the circumstances of the offense that had a tendency to

make it more probable than it would be without the evidence that Fadness had acted with

the purpose of committing deliberate homicide. The prosecutor argued in closing: “It




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was the best weapon that he had at his disposal.” The District Court denied Fadness’s

motions to exclude the evidence.

¶12    In arguing that this evidence was not harmless under State v. Van Kirk, 2001 MT

184, 306 Mont. 215, 32 P.3d 735, Fadness contends that his lifestyle was on trial, that he

was “compelled to delve into issues which were utterly unrelated to the underlying

crime,” and that “[i]t wasted the jury’s time, it was cumulative and it was redundant.”

¶13    Fadness argues that the Court erred in its evidentiary ruling. This amounts to trial

error as opposed to structural error and thus is subject to a harmless error analysis. Under

Van Kirk, we adopted a cumulative evidence test which looks “not the quantitative effect

of other admissible evidence, but rather to whether the fact-finder was presented with

admissible evidence that proved the same facts as the tainted evidence proved. Van Kirk,

¶ 43. It must also be shown that the tainted evidence was such that there was no

reasonable possibility that it might have contributed to the defendant’s conviction. Van

Kirk, ¶ 44.

¶14    We conclude that admission of the challenged evidence was harmless. Even

assuming arguendo that the various weapons and paraphernalia in Fadness’s vehicle

should have been excluded as irrelevant, the fact-finder was presented with admissible

evidence that proved the same facts as the challenged evidence. Fadness admitted that he

fired the shots in question. There was no question that the shots came from a Walther

.22-caliber pistol with a laser sight and silencer. There was also no question that Fadness

hit each vehicle door almost dead center and, in fact, hit one of the drivers in the knee.

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¶15    In the present case, the evidence in question was presented by the State as

circumstantial evidence of criminal intent. As such, it was clearly cumulative to the

unchallenged, admissible evidence that Fadness admittedly fired a potentially lethal

weapon with a laser sight and silencer into the door of an occupied vehicle. That direct

evidence not only proved the same facts as the challenged evidence but was of higher

quality.

¶16    Accordingly, we hold that any error in admitting the challenged evidence was

harmless.

¶17    The judgment of the District Court is affirmed.


                                                          /S/ W. WILLIAM LEAPHART

We concur:

/S/ JOHN WARNER
/S/ BRIAN MORRIS
/S/ JIM RICE




Justice James C. Nelson dissents.

¶18    I dissent from the Court’s decision.

¶19    Since this is a noncitable Opinion, I write summarily to express my disagreement

with the Court’s holding that the trial court did not err in allowing all of the property in

Fadness’s truck into evidence in this case. Most of this evidence was irrelevant to and

not probative of the crime charged—e.g., cumulative photographs of the same thing; the
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curriculum vitae of a toolmark examiner; firearms that were in the bed of the truck

(wrapped up, no less); firearms that could not have been used in the crime committed; a

holster; a night vision monocular; a camera; a GPS; a rangefinder; a blanket; a rope;

keys; a knife; wallets; a baton; a Miranda warning card; a saw; flashlights; and a cell

phone. This list goes on and on.

¶20    The prosecutor went over the top; and the trial court let him. In State v. Ingraham,

1998 MT 156, ¶¶ 48-51, 290 Mont. 18, ¶¶ 48-51, 966 P.2d 103, ¶¶ 48-51, we held that it

was unduly prejudicial and reversible error to admit items of evidence that had nothing to

do with the crime charged. I would follow Ingraham in this case and reverse and remand

for a new trial, limiting the physical evidence to that relevant and probative of the crime

with which Fadness was charged.

¶21    I dissent.



                                                  /S/ JAMES C. NELSON




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