                                                                                            August 19 2014


                                           DA 13-0184

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2014 MT 224


STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

ROBERT ZLAHN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 11-0468
                        Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Koan Mercer, Assistant Appellate
                        Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Pamela P. Collins, Assistant
                        Attorney General; Helena, Montana

                        Scott Twito, Yellowstone County Attorney; Rod Souza, Deputy County
                        Attorney; Juli Pierce, Deputy County Attorney; Billings, Montana



                                                     Submitted on Briefs: June 25, 2014
                                                                Decided: August 19, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Robert Zlahn (Zlahn) appeals from the judgment of the Montana Thirteenth Judicial

District Court, Yellowstone County, sentencing him to the Department of Corrections for a

total of thirty years after a jury convicted him of three felonies: Assault with a weapon,

criminal endangerment, and tampering with or fabricating physical evidence. We affirm.

                                         ISSUES

¶2    We review the following issues:

      1. Should we exercise plain error review to consider Zlahn’s contention that the

      failure to immediately assign him counsel violated his constitutional and statutory

      rights?

      2. Did the District Court err in refusing Zlahn’s proposed jury instructions regarding

      factors affecting the reliability of eyewitness identification?

      3. Did the District Court err in its evidentiary rulings related to condoms found in

      Zlahn’s van, gunshot residue tests, line-up statistics and vantage point evidence?

      4. Did the District Court abuse its discretion when it refused to declare a mistrial

      based on the court’s comments to a co-conspirator?

      5. Is there sufficient cumulative error to warrant a new trial?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On July 1, 2011, Alanna Vincent (Vincent) was returning to her home in the Billings

Heights after doing some grocery shopping at the nearby Walmart. She noticed two black

men in a dented maroon van make a U-turn to follow her vehicle. She parked her vehicle in

                                             2
front of her home and watched as the van drove by slowly. As she was getting out of her car,

the van turned around to pull up beside her. Through the open window, the driver, a

short-haired black man with a gap in his teeth, asked her whether she wanted to get in the

van and have intercourse. She noticed that he had an accent. Feeling threatened, Vincent

told the men to leave her alone and ran into her home. There, she told her boyfriend, a body

builder and former football player, Ryan Grosulak (Grosulak), what had happened.

¶4     Grosulak began driving around the neighborhood in search of the dented maroon van

with two black men in the front seats. He caught up with a vehicle that matched that

description not far away. He rolled down the window of his car, yelled at the men about

their behavior towards Vincent using some choice language, and made an obscene gesture.

A “skinny white kid” jumped out of the back and wanted to fight. Then the driver stepped

out of the car and began returning Grosulak’s obscenities. Grosulak stepped out of the car.

When he did so, “just bullets just start flying, like I just got totally stunned.” He said the

van’s driver, who had short or buzzed hair and was wearing a bright green shirt, was the

shooter, although he did not see the gun. He later testified that the gun was a silver pistol.

Terrified, Grosulak dove back into his car and began both driving away and calling 9-1-1.

While he was on the phone with the 9-1-1 dispatcher, he returned to the apartment.

¶5     Officer Joseph Dickerson (Officer Dickerson) was employed with the Billings Police

Department at the time as a patrol officer. At about 2:57 p.m. he received a dispatch for

shots fired in the Heights and arrived at a nearby residential address where another officer

believed he had apprehended the suspects. The suspects were Zlahn, a black man who had
                                              3
short hair and was wearing a green shirt; Samuel Bettie (Bettie), a black man who had

dreadlocks at the time; and Sean Bowers (Bowers), a young white man. The address

belonged to Bowers’s grandmother.

¶6     Officer Dickerson spoke with Zlahn at the scene. Officer Dickerson noticed that

Zlahn had an accent. Zlahn said he had dropped his girlfriend off at work, then his vehicle

had broken down and he had found someone to push his vehicle from where it had broken

down several miles away to its current location. He denied involvement with the shooting.

¶7     Officers also spoke with Bowers at the scene. Bowers initially denied being in the

van and said he had just met Bettie and Zlahn on the street. He also said that he was going to

meet his mother at Walmart. He later changed his story and admitted to being present for the

altercation. He said he heard three shots fired, but did not know who had fired them. He

said the shots came from the driver’s side of the vehicle. When officers asked Bowers where

the weapon was, he pointed to a bush. There the officers recovered a gun. The gun was a

.45 caliber that was ready to fire. Officer Dickerson bagged and inventoried the weapon.

¶8     The police transported Zlahn, Bettie and Bowers to the City Hall where a detective

administered gunshot residue (GSR) tests to all three men. Zlahn became agitated when the

detective said he would be doing GSR testing, while the other two men remained calmer.

The GSR tests revealed that all three suspects had been in close proximity to the gun when it

was fired; however, it did not show which of the suspects had fired the gun. Comparisons of

DNA found on the gun with the suspects’ DNA showed that Zlahn’s DNA was a “major

contributor” to the DNA profile, but that Bettie’s was not. The expert who testified said that
                                              4
the DNA profile from the gun was a “mixed” profile with probably three to four contributors.

She explained that the fact that Bettie’s DNA did not appear on the gun did not mean that

Bettie could not have handled the gun or been the shooter. It appears there was no

comparison of Bowers’s DNA with the DNA found on the gun.

¶9     Later on July 1, 2011, an officer arrived at Vincent’s and Grosulak’s apartment to

transport them to the place where the van had been apprehended. Vincent and Grosulak both

were sure the van in which the suspects were apprehended was the one they had seen. A

detective arrived afterwards to show them photographic line-ups. Grosulak could not

identify the shooter from any line-up because he said events had happened too quickly for

him to be able to identify anyone. Vincent identified Zlahn as the person who had been

driving the van when the offensive remarks were made. Following Zlahn’s arrest, the keys

to the van were found among Zlahn’s belongings. The van was registered to Zlahn’s

girlfriend.

¶10    Zlahn was charged with felony attempted deliberate homicide in Yellowstone County

Justice Court. Zlahn appeared before a justice of the peace on July 5, 2011, and, through a

public defender who had come to court to represent all defendants on the jail-court calendar

that day, requested to be represented by a public defender. The justice of the peace ordered

the Office of the State Public Defender (OPD) to represent Zlahn and ordered the State to file

an information in district court by July 12, 2011. Pursuant to an internal policy not to assign

attorneys to felony defendants until after the defendants have been arraigned in district court,

OPD did not assign a public defender to Zlahn immediately. The State did not file its
                                               5
information until July 21, 2011. Zlahn was arraigned in District Court on July 25, 2011. At

his arraignment he was represented by another on-duty public defender, who spoke with him

for approximately two minutes before court. The District Court ordered OPD to represent

Zlahn. However, no public defender was assigned to represent Zlahn until August 11 or 12,

2011—approximately five weeks after he first appeared in court related to the felony charges

against him and three weeks after he was arraigned. As a result, Zlahn did not have

representation during the ten-day window in which he could have been advised of, and

exercised, his right to substitute the judge. On April 20, 2012, the State amended its

information to add, as an alternative to attempted deliberate homicide, counts of assault with

a weapon, criminal endangerment and witness tampering. A jury trial was held from July

16-24, 2012.

¶11    At trial, eyewitnesses testified as to the shooter’s identity. Bowers testified that Zlahn

was the shooter. Two eyewitnesses testified that the driver of the van was the shooter.

Zlahn sought jury instructions on factors that affect reliability of eyewitness identifications,

such as difficulties with cross-racial identification. The District Court refused those

instructions. Over Zlahn’s counsel’s objections, the District Court also permitted admission

of evidence regarding a stockpile of condoms found in the suspect van; an officer’s

testimony about what criminals think about the strength of GSR testing; an officer’s account

of how often other witnesses, in other cases, have picked people out of photo line-ups; and

an officer’s video and testimonial evidence as to the eyewitnesses’ vantage points. Zlahn’s



                                               6
counsel sought and was denied a mistrial following a comment by the District Court that he

believed reflected on Bowers’s credibility.

¶12    The jury found Zlahn not guilty of attempted deliberate homicide, but found him

guilty of assault with a weapon, criminal endangerment and witness tampering. The District

Court sentenced Zlahn to a total of thirty years in Montana State Prison with five suspended.

                                STANDARD OF REVIEW

¶13    This Court reviews questions of statutory construction and alleged violations of the

constitutional right to counsel de novo. See State v. Gatlin, 2009 MT 348, ¶ 16, 353 Mont.

163, 219 P.3d 874; Hammer v. State, 2008 MT 342, ¶ 9, 346 Mont. 279, 194 P.3d 699.

¶14    We review jury instructions in a criminal case to determine whether the district court

abused its discretion. State v. Schaeffer, 2014 MT 47, ¶ 12, 374 Mont. 93, 321 P.3d 809. A

district court has broad discretion when it instructs a jury, and reversible error occurs only

where the instructions prejudicially affect the defendant’s substantial rights. Schaeffer, ¶ 12.

¶15    We review a district court’s evidentiary rulings for an abuse of discretion. State v.

Hardman, 2012 MT 70, ¶ 8, 364 Mont. 361, 276 P.3d 839. To the extent an evidentiary

ruling is based on interpretation of an evidentiary rule or statute, however, the review is

de novo. Hardman, ¶ 8.

¶16    A district court’s decision on a motion for a mistrial must be based upon whether the

party has been denied a fair and impartial trial, and the decision on the motion is reviewed to

determine whether the court abused its discretion. Heidt v. Argani, 2009 MT 267, ¶ 10, 352

Mont. 86, 214 P.3d 1255.
                                               7
                                       DISCUSSION

¶17    1. Should we exercise plain error review to consider Zlahn’s contention that the

failure to immediately assign him counsel violated his constitutional and statutory rights?

¶18    The Sixth Amendment of the United States Constitution and Article II, Section 24, of

the Montana Constitution, guarantee a criminal defendant the right to assistance of legal

counsel. U.S. Const. amend. VI; Mont. Const. art. II, § 24. The right to counsel arises at

every critical stage of criminal proceedings. Ranta v. State, 1998 MT 95, ¶ 17, 288 Mont.

391, 958 P.2d 670. We have defined a “critical stage” as any step of the proceeding where

there is potential for substantial prejudice to the defendant. Ranta, ¶ 17. Section 47-1-

104(3), MCA, provides: “When a court orders the office [of the public defender] or the

office of appellate defender to assign counsel, the appropriate office shall immediately assign

a public defender qualified to provide the required services.”

                We generally do not review on appeal issues that were not raised before
        the district court. However, we may undertake review of such an issue under
        the plain error doctrine in situations that implicate a defendant’s fundamental
        constitutional rights when failing to review the alleged error may result in a
        manifest miscarriage of justice, leave unsettled the question of the
        fundamental fairness of the proceedings, or compromise the integrity of the
        judicial process.
State v. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799 (quoting State v. Hayden,

2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091). We exercise our discretion to invoke

plain error review sparingly, on a case-by-case basis. McDonald, ¶ 8.

¶19    Zlahn argues on appeal that OPD’s failure to appoint counsel for five weeks violated

§ 47-1-104(3), MCA, as well as Zlahn’s constitutional rights to counsel, so tainting the


                                              8
fundamental fairness of the proceedings as to require we vacate Zlahn’s conviction.

Alternatively, he argues that the period during which Zlahn could have exercised his option

to substitute the district court judge was a critical stage in the proceedings and, because

Zlahn did not have counsel during that period, we must reverse his conviction. Although

Zlahn did not present these issues to the District Court, he argues we should review them

because he was an indigent defendant facing felony charges and failing to review his claims

related to the five-week delay in appointment of counsel would “compromise the integrity of

the judicial process.”

¶20    Plain error review is not warranted here. Although OPD did not appoint a specific

counsel for Zlahn until five weeks into the proceedings, he had counsel for both his initial

court appearances. The first “failure” to appoint Zlahn his own public defender occurred

pursuant to a court policy. Once Zlahn had been arraigned and became eligible for a public

defender under the policy, OPD assigned him counsel within two to three weeks. He had

counsel at each of his court appearances. Although Zlahn would argue that the time lapse

between his initial appearance in District Court and appointment of counsel was excessive

because it denied him the option of substituting the judge, we have never held that the

ten-day window in which substitution of the judge may occur is a critical stage of the

proceedings. Nor is there any indication that Zlahn actually wanted to substitute the judge.

Zlahn did not write letters or “kites” complaining about the judge. Once counsel had been

assigned, Zlahn never objected to the judge or to OPD’s failure to assign counsel so he could

substitute the judge. OPD could certainly have moved more swiftly to provide Zlahn with
                                             9
counsel, but its failure to do so did not give rise to a manifest miscarriage of justice, leave

unsettled the question of the fundamental fairness of the proceedings, or compromise the

integrity of the judicial process. We decline to exercise plain error review.

¶21    2. Did the District Court err in refusing Zlahn’s proposed jury instructions regarding

factors affecting the reliability of eyewitness identification?

¶22    We review jury instructions to determine whether, taken as a whole, they fully and

fairly instruct the jury on the applicable law. State v. Norman, 2010 MT 253, ¶ 13, 358

Mont. 252, 244 P.3d 737. In State v. Hall, 244 Mont. 161, 171-72, 797 P.2d 183, 190

(1990), this Court upheld a district court’s refusal to give a jury instruction on eyewitness

identification where the substance of the proposed instruction was adequately covered by the

general witness credibility instructions and more than one eyewitness had identified the

alleged offender. Zlahn urges us to reconsider Hall in light of empirical research regarding

the risks and prevalence of false identifications and to join the “developing trend” of offering

eyewitness identification instructions. In response, the State offers that this is not a pure

eyewitness identification case because several eyewitnesses provided descriptions that

implicated Zlahn, but the person who actually identified him was his friend, Bowers.

¶23    We cannot say that, where Hall is the applicable law, the District Court erred in

refusing Zlahn’s proposed jury instructions. There is no requirement that a jury be instructed

specifically on eyewitness identifications in Montana. Here, just as in Hall, the substance of

Zlahn’s proposed jury instructions was covered by the other instructions and Zlahn’s

conviction hinged upon the testimony of more than one witness. The instructions properly
                                              10
instructed the jury on witness credibility: Jury instruction four directed jurors to weigh

witness testimony in light of witnesses’ appearance on the stand, manner of testifying,

apparent candor, apparent fairness and knowledge or means of knowledge, among other

factors. The instructions also provided definitions of direct and circumstantial evidence and

explained that the State was required to prove beyond a reasonable doubt the identity of the

person who committed the crime. These instructions, taken as a whole, fully and fairly

instructed the jury on the applicable law.

¶24    Further, the State is correct that this is not a pure eyewitness identification case—no

eyewitness, except for Bowers, specifically identified Zlahn as the shooter. Zlahn’s

conviction hinged on cumulative circumstantial evidence derived from eyewitness testimony

that was subject to cross-examination. Even applying Hall, more than one eyewitness

identified Zlahn as the van’s driver or the shooter. The shooting was committed in public, in

broad daylight, on a busy street. Bowers, who knew Zlahn, testified under oath that he saw

Zlahn shoot the gun. Vincent identified Zlahn as the van’s driver in a line-up. Witnesses

Michelle Wellard and Richard Morris said the driver of the van was the shooter. Bowers

also testified to that fact. Grosulak told the police that the shooter was wearing a green shirt

and Zlahn was wearing a green shirt when he was apprehended. Zlahn was uncooperative

with the GSR testing. The key to open the van’s door and start its ignition was found in

Zlahn’s property when he was arrested shortly after the shooting and the van belonged to

Zlahn’s girlfriend. Zlahn was included as a probable contributor to the DNA found on the

gun while Bettie most likely was not. Since not only eyewitness identifications, but also an
                                              11
array of circumstantial evidence, pointed to Zlahn as the shooter, no jury instruction on

eyewitness identifications was necessary under Hall.

¶25     The jury instructions on eyewitness identifications were not warranted and the court

did not abuse its discretion by failing to give such an instruction.

¶26     3. Did the District Court err in its evidentiary rulings related to condoms found in

Zlahn’s van, gunshot residue tests, line-up statistics and vantage point evidence?

        a. Condoms found in Zlahn’s van.

¶27     Although trial courts have broad discretion in determining the relevance and

admissibility of evidence, they remain bound by the Montana Rules of Evidence. State v.

Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. M. R. Evid. 403 provides that

“[a]lthough relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury . . . .”

¶28     Over Zlahn’s objection, the District Court admitted evidence of a large number of

condoms found in the maroon van. The State’s theory was that the condoms were relevant to

Vincent’s credibility because Vincent alleged Zlahn had made sexual comments to her and

the presence of the condoms in the van tended to show Zlahn’s interest in sexual relations

with women other than his girlfriend. On appeal, Zlahn argues that “[t]he presence of

prophylactics in a vehicle has no legitimate tendency to prove that the vehicle’s driver made

boorish sexual comments to a pedestrian.” We agree. We can see no relationship between

the presence of condoms in the van and the alleged inappropriate comments. Nor do we see
                                             12
any relationship between the presence of condoms in the van and the crime charged.

Further, the presence of a large stockpile of condoms could certainly have colored the jury’s

view of Zlahn by implying he was promiscuous or unfaithful to his girlfriend. We conclude

this evidence was more prejudicial than probative and the District Court abused its discretion

by admitting it.

¶29    Since we have determined that the District Court committed error, we next consider

whether this error requires reversing Zlahn’s conviction. The first step in this analysis is to

determine whether the error was structural error or trial error. State v. Garding, 2013 MT

355, ¶ 28, 373 Mont. 16, 315 P.3d 912. Structural error affects the framework in which the

trial proceeds, and so taints the fundamental fairness of the proceedings as to require

automatic reversal. Garding, ¶ 28. Examples include errors in jury selection, deprivation of

counsel, and lack of an impartial trial judge. Garding, ¶ 28. Trial error, conversely,

typically occurs during presentation of a case to the jury. Garding, ¶ 28. It can be reviewed

qualitatively for prejudice in context of other evidence introduced during trial and, therefore,

is susceptible to harmless error analysis. Garding, ¶ 28.

¶30    Here, admission of the condom evidence occurred during presentation of the case to

the jury. The error in admission is trial error and we consider whether the error was

harmless.

¶31    We have explained that once a convicted person establishes that evidence was

erroneously admitted and has alleged prejudice, it becomes incumbent upon the State to

demonstrate that the error was not prejudicial. State v. Van Kirk, 2001 MT 184, ¶ 42, 306
                                              13
Mont. 215, 32 P.3d 735. Section 46-20-701(1), MCA, Montana’s criminal harmless error

statute provides:

       (1) Whenever the record on appeal contains any order, ruling, or proceeding of
       the trial court against the convicted person affecting the convicted person’s
       substantial rights on the appeal of the cause, together with any required
       objection of the convicted person, the supreme court on that appeal shall
       consider the orders, rulings, or proceedings and the objections thereto and
       shall reverse or affirm the cause on the appeal according to the substantial
       rights of the respective parties, as shown upon the record. A cause may not be
       reversed by reason of any error committed by the trial court against the
       convicted person unless the record shows that the error was prejudicial.

(Emphasis added). We have held that where erroneously admitted evidence is cumulative in

nature, it is not prejudicial, and the resulting error is harmless. State v. Hansen, 1999 MT

253, ¶ 95, 296 Mont. 282, 989 P.2d 338. In making its proof under the “cumulative

evidence” standard, the State must direct us to admissible evidence that proved the same

facts as the tainted evidence. Van Kirk, ¶ 44.

¶32    We conclude that here, the State has borne its burden of directing our attention to

admissible evidence that proved the same facts as the inadmissible condom evidence. As the

State pointed out, Vincent testified that Zlahn had made a lewd proposition to her from his

vehicle; thus, the jury had before it clearly admissible evidence that Zlahn was willing to

engage in promiscuous conduct. While the admission of the condom evidence may have

reinforced this impression, it did not unfairly create an unfounded inference. In light of

Vincent’s testimony, the condom evidence was cumulative.              See Van Kirk, ¶ 44.

Accordingly, it did not prejudice Zlahn, or otherwise affect his substantial rights. See In re

R.M.B., 213 Mont. 29, 33-34, 689 P.2d 281, 283 (1984); Hansen, ¶¶ 86-95. Although the
                                             14
condom evidence was improperly admitted because it was more prejudicial than probative,

its admission did not cause such prejudice to Zlahn as to warrant a new trial.

       b. Gunshot residue tests.

¶33    A lay witness may testify as to opinions and inferences which are rationally based on

the perception of the witness and helpful to a clear understanding of the witness’s testimony

or the determination of a fact in issue. M. R. Evid. 701. This Court has condoned police

officer testimony on matters as to which they have extensive experience and are properly

qualified through training and experience. State v. Dewitz, 2009 MT 202, ¶ 40, 351 Mont.

182, 212 P.3d 1040. For instance, we have upheld a trial court’s admission of officer

testimony regarding the cause of an accident, based on the officer’s experience in accident

investigation. Hislop v. Cady, 261 Mont. 243, 249, 862 P.2d 388, 392 (1993). We have also

upheld admission of officers’ testimony as to whether a criminal defendant possessed drugs

with an intent to sell, based on their training and experience as to the methods used in the

illicit drug trade. State v. Frasure, 2004 MT 305, ¶ 18, 323 Mont. 479, 100 P.3d 1013.

Hearsay testimony, however, is generally not admissible. M. R. Evid. 802. “Hearsay is a

statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” M. R. Evid. 801(c). M. R.

Evid. 703 provides that an expert witness may rely on hearsay evidence in formulating an

expert opinion.

¶34    At trial, Zlahn objected to testimony elicited from an officer about what people

involved with criminal activity think about GSR testing. He contended that the officer’s
                                             15
testimony was inadmissible because it was based on conversations he had had with people to

whom he had administered GSR testing during his fourteen years as a detective. Because the

officer’s opinion was based on hearsay, he argued, it was inadmissible. The District Court

allowed the testimony over Zlahn’s objection. The officer testified that, in his experience,

people on the street believed that if GSR was found on their hands, they were caught. He

also testified that Zlahn was resistant to GSR testing and was generally unruly when he

learned the testing would be performed. On appeal, Zlahn argues that the District Court

erred by allowing the officer’s testimony about criminals’ impressions of GSR testing

because it incorporated inadmissible hearsay. He further contends that the District Court

erred because in allowing the testimony it eroded the distinction between M. R. Evid. 701

and M. R. Evid. 703.

¶35    We conclude that the officer’s testimony was properly admitted because he had

extensive experience dealing with criminals and administering GSR testing, and was

testifying about inferences he drew based on his experience. The officer testified he had

worked as a detective for fourteen years over the course of which he conservatively

estimated he had administered fifty GSR tests. He testified that he had twenty years of

experience, including four in the drug unit, in which he observed that people talked on the

street. Based on his experience, he opined that criminally involved individuals believed that

GSR testing could be conclusively used to incriminate them. The officer did not testify as to

specific statements that criminal defendants made, or even to their overall demeanor.

Instead, he testified generally about his own impressions based upon his experience. He also
                                             16
testified that Zlahn was resistant to GSR testing—tending to show that Zlahn believed that

the testing might incriminate him. Such an opinion is no different from an opinion from an

officer trained in accident investigation as to the cause of an accident, or officers’ evaluation

of whether a criminal defendant possessed drugs with intent to sell. It was properly admitted

pursuant to M. R. Evid. 701.

¶36    We reject the notion that allowing such testimony erodes the distinction between

M. R. Evid. 701 and 703. The officer’s testimony was clearly lay opinion testimony,

admissible under M. R. Evid. 701. In Frasure, ¶ 17, we observed: “Lay opinion testimony

is admissible if ‘the witness’ testimony in the form of opinions or inferences is limited to

those opinions or inferences which are (a) rationally based on the perception of the witness

and (b) helpful to a clear understanding of the witness’ testimony or the determination of a

fact in issue.’” (Quoting M. R. Evid. 701). We noted that we had previously applied M. R.

Evid. 701 to the testimony of police officers as to matters in which they had extensive

experience and training. Frasure, ¶ 17. We said that because the testimony offered by the

police officers was rationally based on their perceptions and helped give a clear

understanding of the defendant’s intent, the court did not err in admitting the testimony.

Frasure, ¶ 18. The same logic applies here. The officer’s testimony was properly admitted

pursuant to M. R. Evid. 701 and was not admitted under M. R. Evid. 703; thus, there is no

danger of eroding the distinction between the two rules.

       c. Line-up statistics.



                                               17
¶37    “Evidence which is not relevant is not admissible.” M. R. Evid. 402. “Relevant

evidence means evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would

be without the evidence . . . [and] may include evidence bearing upon the credibility of a

witness or hearsay declarant.” M. R. Evid. 401.

¶38    Zlahn challenges the District Court’s decision to allow the detective who administered

the photo array to Vincent to testify that it was very rare for witnesses to identify suspects

from photo line-ups. He argues that this testimony was irrelevant because “[h]ow often other

witnesses looking at other photo lineups in other cases involving other suspects and

circumstances picked someone out for the detective has no tendency to make it more

probable that Ms. Vincent’s identification of Mr. Zlahn was accurate.” As the State points

out, however, the defense presented evidence aimed at attacking Vincent’s credibility in

identifying Zlahn. We conclude that the officer’s testimony was relevant because it bears

upon the credibility of Vincent’s identification of Zlahn as the van’s driver. The District

Court did not abuse its discretion by allowing this testimony.

       d. Vantage point evidence.

¶39    Zlahn next argues that the District Court erred by admitting photos and videos created

by a police detective purporting to reproduce the viewpoints of various witnesses. He claims

these photos and videos were inadmissible because they were derived from hearsay and cites

State v. Strauss, 2003 MT 195, ¶ 34, 317 Mont. 1, 74 P.3d 1052, to support his view that the

testimony of a witness who was present for the shooting and who could attest to the accuracy
                                             18
of the representations was necessary to lay foundation for the proper admission of these

representations. In Strauss, we held that a videotape of a crime scene was admissible, but

should not have been played with an officer’s recorded commentary because the recording

deprived the defense of the opportunity to challenge objectionable statements as they were

made. Strauss, ¶¶ 22-24. We held that a second videotape created by the prosecution was

inadmissible because it constituted a re-enactment that duplicated the first videotape and

lacked proper foundation, in the form of testimony by a witness who was present at the crime

and could attest to its accuracy. Strauss, ¶ 32.

¶40    Strauss does not support Zlahn’s view that the photos and videos at issue here were

inadmissible. The videos at issue were not re-enactments, like the second Strauss video, but

existed primarily to document physical distances and vantage points. We held in Strauss that

the first video was admissible for that purpose, so long as it was played without the

detective’s recorded commentary. Strauss, ¶ 22. Here, as we recommended in Strauss, the

detective testified about what was being shown in the video while the video was playing.

Zlahn cross examined the detective about the evidence. Some of the witnesses went to the

scene with the detective to show him where they had been located. All the witnesses, upon

whose statements the videos and photos were based, were present and available for cross

examination. The witnesses testified at trial about where they were located when they made

their observations. The combined effect of these facts, along with the limited purpose for

which the evidence was admitted and used, gives the detective’s photos and videos the



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necessary “circumstantial guarantees of trustworthiness” to overcome the ban on hearsay, to

the extent that ban is implicated here. M. R. Evid. 803(24).

¶41    4. Did the District Court abuse its discretion when it refused to declare a mistrial

based on the court’s comments to a co-conspirator?

¶42    Zlahn alleges that the District Court improperly commented on Bowers’s credibility

when it made the following statement, in the presence of the jury: “Mr. Bowers, I know

you’re trying to do your best today because you’ve mentioned you’re under oath and you’re

trying to tell the truth and adhere to the subpoena that was issued, but the way the process

works is Mr. Abbott asks the questions.” Following that comment, out of the presence of the

jury, Zlahn objected to the comment and moved for a mistrial. The court denied Zlahn’s

motion. Although we noted in Sloan v. State, 236 Mont. 100, 105, 768 P.2d 1365, 1369

(1989), that “a court should refrain from comments on witness credibility,” here, as in that

case, the District Court’s statement, taken in context, was not a comment on witness

credibility. Bowers stated at the beginning of his testimony that he was reluctant to testify

and was appearing because of the subpoena; the court’s comment is properly understood as

an instruction to a witness, not a comment on his credibility. The District Court did not err

in making this comment, or abuse its discretion by denying Zlahn’s motion for a mistrial.

¶43    5. Is there sufficient cumulative error to warrant a new trial?

¶44    Zlahn argues that the District Court committed so many errors that it deprived him of

the due process guaranteed by the Fourteenth Amendment of the United States Constitution.

Although we recognized in Kills on Top v. State, 279 Mont. 384, 392, 928 P.2d 182, 187
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(1996), that cumulative error might serve as a basis for reversal even where individual errors

do not, that recognition is inapposite here. The District Court committed only a single,

harmless error, by admitting the evidence of condoms found in the van. There is no

cumulative error.

                                      CONCLUSION

¶45    Affirmed.

                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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