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State v. Francis11/29/2001
APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable John W. Whelan, Judge presiding.
Submitted on Briefs: December 21, 2000
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
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.
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
We review a district court's evidentiary rulings to determine whether the court abused 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
Did the District Court commit reversible error when it admitted Steilman's out of court statements?
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.
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 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 conspirac
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