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                                                               No. 99-698

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2001 MT 233



                                                     STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                        STEVEN FRANCIS,

                                                     Defendant and Appellant.



                           APPEAL FROM: District Court of the Second Judicial District,

                                              In and for the County of Silver Bow,

                                    The Honorable John W. Whelan, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                            Chad Wright, Assistant Appellate Defender, Helena, Montana

                                                            For Respondent:

                           Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

                                       Assistant Attorney General, Helena, Montana

                        Robert M. McCarthy, Silver Bow County Attorney, Butte, Montana

                                           Submitted on Briefs: December 21, 2000

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                                                    Decided: November 29, 2001

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk



Justice Jim Regnier delivered the Opinion of the Court.

¶1 Stephen Robert Francis appeals from the Judgment entered by the Second Judicial
District Court, Silver Bow County, convicting him of deliberate homicide. The following
issue is dispositive of this appeal: Did the District Court commit reversible error when it
admitted Derrick Steilman's out of court statements? We reverse and remand for a new
trial.

                                                          BACKGROUND

¶2 On October 2, 1998, the State charged Stephen Francis with deliberate homicide in
violation of § 45-5-102(1)(a), MCA. Francis pled not guilty. The day before Francis was
charged, Detectives Douglas Conway and Jack Best interviewed Derrick Steilman. During
the interview, Steilman informed them that he and Francis had murdered Paul Bischke to
prove their worth to each other in conducting other criminal activity. Steilman was offered
a plea agreement and his interview was videotaped.

¶3 A trial by jury was held on June 15-17, 1999. The State called Steilman as a witness,
but he refused to answer any questions on the ground that he might incriminate himself.
The State then sought the admission of out of court statements made by Steilman,
including his videotaped interview with the police. The court admitted Steilman's
statements. The jury found Francis guilty of deliberate homicide. The District Court
sentenced Francis to the Montana State Prison for a term of 100 years and further ordered
that Francis would be ineligible for parole or participation in the supervised release
program. Francis appeals.

                                                  STANDARD OF REVIEW

¶4 We review a district court's evidentiary rulings to determine whether the court abused
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its discretion. State v. Weitzel, 2000 MT 86, ¶ 24, 299 Mont. 192, ¶ 24, 998 P.2d 1154, ¶
24. Francis asserts that we should review the admission of Steilman's out of court
statements de novo because the District Court "failed to put any explanation on the record
for its ruling." We decline to do so. The State offered arguments on the admissibility of
Steilman's statements. Francis' attorney countered the State's arguments. The court
accepted the State's argument. We see no reason to use a different standard of review
under these circumstances.

                                                            DISCUSSION

¶5 Did the District Court commit reversible error when it admitted Steilman's out of court
statements?

¶6 The State called Derrick Steilman as a witness in Francis' trial. Steilman, however,
refused to answer any questions on the ground that he might incriminate himself. The
District Court excused Steilman. The State then sought the admission of out of court
statements made by Steilman, including Steilman's videotaped statement to Detectives
Conway and Best.

¶7 Counsel for Francis responded that Steilman's out of court statements were
inadmissible hearsay and their admission would violate Francis' constitutional right of
confrontation. The State noted that it had provided the court with a copy of a "Point Brief"
in support of the admission of Steilman's out of court statements. Apparently, the Point
Brief had been presented to the court before trial, but the State did not file a copy of the
brief with the clerk of court nor did it provide defense counsel with a copy of the brief
until defense counsel objected to the admission of Steilman's out of court statements at
      (1)
trial. The State orally argued that Steilman's statements to "lay witnesses" (i.e.,
statements made to people other than the police) were admissible as statements of a co-
conspirator made in furtherance of a conspiracy. Steilman's statements to Detectives Best
and Conway, according to the State, were admissible because they were admissions
against his penal interest.

¶8 The District Court admitted Steilman's out of court statements but refused to admit the
videotape of Steilman's interview with Detectives Conway and Best and refused to admit a
transcript of that interview. However, the videotape of Steilman's confession was
subsequently shown to the jury pursuant to a motion by defense counsel who stated that,
pursuant to the court's ruling on the admissibility of Steilman's out of court statements, the

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defense wanted the jury to have an opportunity to observe Mr. Steilman.

¶9 A. Did the District Court err when it admitted Steilman's out of court statements to
Shannon Dinius?

¶10 After the District Court's ruling on the admissibility of Steilman's out of court
statements, the State called Steilman's former girlfriend Shannon Dinius to testify. Dinius
testified that within a week of Bischke's murder, she and Steilman were driving past the
scene of the murder and Steilman pointed to it and told her that he and Francis had killed
Bischke. Steilman told her that they had masks and weapons and that Francis had struck
Bischke first. On cross-examination, Dinius testified that Steilman and Francis did it to
"prove themselves to each other, have some kind of like a blood bond-type thing."

¶11 As noted above, the State orally argued to the District Court that Steilman's statements
to "lay witnesses" were admissible as statements of a co-conspirator made in furtherance
of a conspiracy. The State also maintained in its Point Brief that Steilman's statements to
Dinius were admissible as statements against penal interest. On appeal, however, the State
concedes that Steilman's statements, to the extent they consisted mainly of blaming
Francis, were not admissible. See State v. Castle (1997), 285 Mont. 363, 372, 948 P.2d
688, 693 (stating that a declarant's collateral non-inculpatory statements are neither
credible nor admissible, particularly when they implicate another person). Furthermore,
the State admits the inadequacy of its argument that Francis' statements were admissible as
those of a co-conspirator. Co-conspirators' statements made after attainment of the
conspiracy's object are not admissible unless the movant can prove an express agreement
existed among the co-conspirators to continue to act in concert to cover up the crime after
its commission. See Grunewald v. United States (1957), 353 U.S. 391, 396-97, 77 S. Ct.
963, 969-70, 1 L. Ed. 2d 931. The State offers no such proof.

¶12 Instead, the State insists that we should affirm the District Court's admission of
Dinius' testimony because the court reached the right result even though it employed the
wrong reasons. The State contends, for the first time on appeal, that Dinius' testimony was
admissible pursuant to Rule 801(d)(2)(A), M.R.Evid. as testimony regarding out of court
statements made by Francis. An "admission by party-opponent," under Rule 801(d)(2)(A)
is a statement that is "the party's own statement" offered against the party. State v. Smith
(1996), 276 Mont. 434, 441, 916 P.2d 773, 777. Our function is confined to determining
whether there is substantial credible evidence to support the court's findings. Lacey v.
Herndon (1983), 205 Mont. 379, 387 , 668 P.2d 251, 255. Unfortunately, because the


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State did not assert Rule 801(d)(2)(A) to the District Court as a reason to admit Dinius'
testimony, there is insufficient evidence on the record for us to ascertain whether Dinius'
testimony was admissible as an admission by a party-opponent made by Francis.

¶13 At trial, Dinius first denied talking to Francis about the murder. Later, during cross-
examination, Dinius testified as follows:

        DEFENSE COUNSEL: Did you ever discuss anything regarding the 1996 homicide
        with Steve Francis?

        DINIUS: No.

        DEFENSE COUNSEL: And -

        DINIUS: You mean like since then or then when it happened? Because when it had
        happened, they both had told me. He agreed right along with Derrick. Derrick would
        tell me, and Steve sat there and agreed with the whole thing.

        DEFENSE COUNSEL: And where was this?

        DINIUS: In the Bronco.

        DEFENSE COUNSEL: You testified that you were alone in the Bronco with Mr.
        Steilman, didn't you?

        DINIUS: Yes.

Defense counsel then proceeded to a different line of questioning.

¶14 Since the State never raised Rule 801(d)(2)(A) before the District Court, the court
never reconciled the conflicts in Dinius' testimony concerning whether Francis confessed
to Dinius or if he was present when Steilman did so. The court also made no findings
concerning statements made by Francis. This record provides an inadequate basis for us to
ascertain whether the District Court properly accepted Dinius' testimony under Rule 801(d)
(2)(A).

¶15 Alternatively, the State argues that, pursuant to Rule 801(d)(2)(B), M.R.Evid., Dinius'
testimony was admissible as testimony concerning out of court statements made by

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Steilman and adopted by Francis. Rule 801(d)(2)(B) provides that "[a] statement is not
hearsay if ... [t]he statement is offered against a party and is ... a statement of which the
party has manifested an adoption or belief in its truth". See Rule 801(d)(2)(B), M.R.Evid.;
see also State v. Widenhofer (1997), 286 Mont. 341, 349, 950 P.2d 1383, 1388. There are
two reasons that the State's reliance on Rule 801(d)(2)(B), M.R.Evid., is misguided. First,
the District Court failed to make an express determination that Francis adopted Steilman's
statements as required. See Widenhofer, 286 Mont. at 349, 950 P.2d at 1388 (citing United
States v. Schaff (9th Cir. 1991), 948 F.2d 501, 505). Second, the State has not presented
sufficient evidence to show that Francis adopted Steilman's statements. It is, at best,
unclear whether Francis was even in the car at the time Steilman made the alleged
statements. Given that the District Court made no findings on this matter, we cannot
conclude that the court properly admitted Dinius' testimony as statements made by
Steilman and then adopted by Francis.

¶16 We will affirm a district court's decision when it reaches the correct result for the
wrong reasons. See State v. Veis, 1998 MT 162, ¶16, 289 Mont. 450, ¶16, 962 P.2d 1153,
¶16. In this case, however, the record is insufficiently developed for us to entertain the
State's new rationale. Therefore, we must conclude that the District Court erred in
admitting Dinius' testimony regarding Steilman's out of court statements.

¶17 B. Did the District Court err when it admitted Steilman's out of court statements to
Detective Conway?

¶18 After noting defense counsel's continuing objection to the admission of Steilman's out
of court statements, the court allowed Detective Conway to testify about an interview he
conducted with Steilman. Detective Conway testified that he conducted an interview of
Steilman on October 1, 1998. According to Detective Conway, Steilman stated that he and
Francis killed Bischke in order to prove their worth to each other to conduct other criminal
activity. Steilman stated that he was armed with a wooden dowel and Francis was armed
with an octagon-shaped crowbar. Steilman claimed that Francis inflicted the blows to
Bischke.

¶19 On the next day of testimony, Francis' attorney moved to admit the videotape of
Steilman's confession. Defense counsel stated that pursuant to the court's ruling on the
admissibility of Steilman's out-of-court statements, the defense wanted the jury to have an
opportunity to observe Mr. Steilman. Defense counsel also requested that the court note its
continuing objection to the admission of Steilman's out of court statements. The videotape

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was played for the jury.

¶20 As noted above, the State argued that Steilman's statements to Detectives Best and
Conway were admissible because they were admissions against his penal interest. The
State properly concedes on appeal that Steilman's confession was not admissible pursuant
to Rule 804(b)(3), M.R.Evid., as statements against his penal interest. In Castle, we stated
that the fact that "portions of a declarant's confession are admissible because they are self-
inculpatory, however, does not necessarily make the collateral non-inculpatory statements
either credible or admissible, particularly where the declarant implicates another person."
Castle, 285 Mont. at 372, 948 P.2d at 693. In the instant case, Steilman's confession
consisted mainly of blaming Francis. Since the only basis for admitting Steilman's
confession was the erroneous application of Rule 804(b)(3), M.R.Evid., we hold that the
District Court erred in admitting Steilman's confession.

¶21 C. Does the District Court's erroneous admission of Steilman's out of court statements
to Dinius and to the police require a reversal of Francis' conviction?

¶22 We now turn our attention to whether the admission of Steilman's out of court
statements in violation of the Montana Rules of Evidence requires reversal. Section 46-20-
701(1), MCA, provides:

        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 cnvicted person unless the record shows that the error was
        prejudicial.

¶23 We recently restated our analysis under § 46-20-701, MCA, in State v. Van Kirk, 2001
MT 184, 306 Mont. 215, 32 P.3d 735. The first step in our reversible error analysis
requires us to determine whether the error complained of is a "structural" error or a "trial"
error. Van Kirk, ¶ 37. Structural error affects the framework within which the trial
proceeds, rather than simply an error in the trial process itself. Van Kirk, ¶ 38. Examples
of structural error referred to in Van Kirk include errors in the jury selection process, total


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deprivation of the right to counsel, and lack of an impartial trial judge. See Van Kirk, ¶ 39;
see also State v. LaMere, 2000 MT 45, ¶ 23, 298 Mont. 358, ¶ 23, 2 P.3d 204, ¶ 23
(providing further examples of structural error). Structural error is presumptively
prejudicial, requiring automatic reversal and thus ending our inquiry. See Van Kirk, ¶ 39;
LaMere, ¶ 23. Trial error is that type of error that typically occurs during the presentation
of a case to the jury. Van Kirk, ¶ 40. Such error is amendable to qualitative assessment by
a reviewing court for prejudicial impact relative to the other evidence introduced at trial
and thus does not require automatic reversal. Van Kirk, ¶ 40. The erroneous admission of
evidence, such as occurred here, is the classic example of a trial error. See Van Kirk, ¶ 48
(concluding that the erroneous admission of the results of a horizontal gaze nystagmus, or
HGN test, was trial error); State v. Whipple, 2001 MT 16, ¶ 26, 304 Mont. 118, ¶ 26, 19
P.3d 228, ¶ 26 (reviewing erroneous admission of hearsay evidence under harmless error
standard).

¶24 Because the error complained of here is a trial error, the analysis proceeds to the
second step, which involves the determination of whether, under the circumstances, the
error was harmless. See Van Kirk, ¶ 41. In order to do this, the State must demonstrate that
there is no reasonable possibility that the inadmissible evidence might have contributed to
the verdict. See Van Kirk, ¶ 47. In reaffirming this principle, we stated in Van Kirk that we
were abandoning the "overwhelming evidence" test in favor of the "cumulative evidence"
test because, although unquestionably more restrictive, the cumulative error test would
bring us closer to gauging the potentially prejudicial impact of the evidence. Van Kirk, ¶
43. In bearing its burden under the cumulative evidence standard, the State must direct us
to admissible evidence that proved the same facts as the tainted evidence proved and,
qualitatively, the tainted evidence would not have contributed to the verdict. In those cases
in which no such cumulative evidence was presented, and the tainted evidence went to the
proof of an element of the crime charged, the court's decision must be reversed. In those
cases in which no such cumulative evidence was presented, and the tainted evidence did
not go to the proof of an element of the crime charged, the State must demonstrate that,
qualitatively, there is no reasonable possibility that the tainted evidence might have
contributed to the defendant's conviction. Van Kirk, ¶ 44.

¶25 In the instant case, Francis was charged with "purposely or knowingly [causing] the
death of another human being." See § 45-5-102(1)(a), MCA. The State offered Steilman's
out of court statements to his girlfriend, Dinius, and to the police to prove an element of
homicide: that Francis purposely killed Paul Bischke. Dinius testified that Steilman
pointed to the murder scene and told her that he and Francis killed Bischke. Detective

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Conway testified that Steilman told him that he and Francis used a wooden dowel and
crowbar to kill Bischke in order to prove their worth to each other to conduct further
criminal activity and that Francis inflicted the lethal blows. Therefore, the State must
demonstrate that (a) it presented other admissible evidence demonstrating the "purposely
caused the death" element of the crime charged, and (b) that, qualitatively, no reasonable
possibility exists that the tainted evidence might have contributed to Francis' conviction.
See Van Kirk, ¶ 48.

¶26 The State argues that Steilman's out of court statements were cumulative to the
evidence already presented to the jury. The State notes that those portions of Steilman's
statements in which he implicated himself were admissible as statements against his penal
interest. The State also observes that various witnesses testified that Francis and Steilman
were virtually inseparable and lived together at the time of Bischke's death. Valerie
Smelich, Francis' girlfriend, testified that Francis had a clipping of a newspaper account of
the homicide in his wallet, that he confided in her that he and Steilman had killed Bischke
for fun and to see if they could keep a secret. The State also observes that both Francis and
Steilman disclosed their involvement in the homicide to Lani Nakamura, one of Steilman's
former girlfriends. Francis discussed his involvement with Joseph Juchemich, his
roommate at the time of his arrest, and Kevin Sheffield, his neighbor. Lastly, the State
notes that Francis himself admitted that he told various people that he had participated in
Bischke's death, even though he told the jury he made these admissions only to impress
women and instill fear into others.

¶27 We agree that the foregoing testimony sufficiently establishes that the State presented
other cumulative admissible evidence regarding Francis' purposeful participation in the
killing of Paul Bischke. Francis' disclosures to various other people that he and Steilman
purposely killed Bischke were cumlative admissible evidence on this element of the
offense.

¶28 Finally, the State must also prove that, qualitatively, no reasonable possibility exists
that the tainted evidence might have contributed to Francis' conviction. See Van Kirk, ¶ 48.
We noted by way of example in Van Kirk a few situations in which the State would be
hard-pressed to demonstrate that erroneously admitted evidence did not contribute to a
conviction. The first example we cited involved the erroneous admission of an involuntary
confession in a prosecution for robbery even though there was other evidence tending to
prove that the defendant committed the crime. Van Kirk, ¶ 45. In another example, we
stated that it would be virtually impossible to prove that evidence presented in a DUI case

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that the defendant was a convicted child molester did not contribute to the DUI conviction
because of the highly inflammatory nature of the evidence. Van Kirk, ¶ 46.

¶29 In the instant case, the State asserts that the inadmissible statements were
"inconsequential" in light of all the cumulative admissible evidence. However, we do not
believe the resolution of this case is quite so clear. On the one hand, we have the
admissible portions of Steilman's confession in which he admitted that he participated in
killing Bischke, the fact that Steilman and Francis were close friends and roommates at the
time of the murder, that Francis had a newspaper article regarding the murder in his
wallet, and Francis' admission that he told other people he had participated in the homicide
along with Steilman. However, on the other hand we have the erroneously admitted
hearsay evidence that Steilman stated that both he and Francis killed Bischke, that Francis
dealt the lethal blows, and Francis' contention that he told other people that he participated
in the murder because he wanted to intimidate or impress them.

¶30 Although this case presents a very close call, we are forced to conclude that there is a
reasonable possibility that the erroneously admitted testimony of Steilman's out of court
statements implicating Francis might have contributed to the verdict. We note that the test
is not whether it was unlikely that the erroneously admitted evidence actually contributed
to the verdict, but whether there was a "reasonable possibility that the inadmissable
evidence might have contributed to the conviction." Van Kirk, ¶ 47 (emphasis added). An
erroneously admitted hearsay statement by an admitted participant in a murder that the
defendant also participated in the murder and that the defendant was the one who inflicted
the lethal blows is qualitatively very damning, especially in light of the complete absence
of any other direct evidence of the defendant's participation (e.g., other admissible
eyewitness testimony, a confession, or other physical evidence). Accordingly, we must
admit that there is a reasonable possibility that Steilman's confession implicating Francis
might have contributed to Francis' conviction.

¶31 Reversed and remanded for a new trial.

                                                         /S/ JIM REGNIER

                                                               We Concur:

                                                      /S/ KARLA M. GRAY



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                                                /S/ TERRY N. TRIEWEILER

                                                    /S/ JAMES C. NELSON

                                               /S/ W. WILLIAM LEAPHART

1. Francis does not argue that the State's submission of its Point Brief to the District Court prior to trial
without contemporaneously serving him with a copy constitutes a separate basis for reversal. Rather,
Francis maintains that "the ex parte Point Brief in this case must be considered as part of the entire trial
process and in conjunction with other admitted trial errors."




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