State v. B. Garay ( 2023 )

03/21/2023
DA 21-0215
Case Number: DA 21-0215
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 50NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
BRUCE ALAN GARAY,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. BDC 2019-436
Honorable Michael F. McMahon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Laura Reed, Attorney at Law, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Bree Gee, Assistant
Attorney General, Helena, Montana
Kevin Downs, Lewis and Clark County Attorney, Stephanie Robles,
Deputy County Attorney, Helena, Montana
Submitted on Briefs: January 4, 2023
Decided: March 21, 2023
Filed:
ir,-6L-.--if
__________________________________________
Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion, shall not be cited and does not serve
as precedent. Its case title, cause number, and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Bruce Alan Garay appeals his conviction in the Montana First Judicial District,
Lewis and Clark County. A jury convicted Garay of Strangulation of a Partner or Family
Member in violation of § 45-5-215(1)(a), MCA. Garay contends the District Court erred
by allowing the State to introduce testimony that he “shoved meth” in the alleged victim’s
mouth, and by denying his motions for a mistrial based on other bad acts evidence.
Alternatively, Garay argues that the cumulative effect of these errors deprived him of a fair
trial. We affirm.
¶3 Garay was charged with two counts of Strangulation of a Partner or Family Member
in violation of § 45-5-215(1)(a), MCA, based on incidents that occurred on April 6 and
April 7, 2019. Garay asserted self-defense. He did not call any witnesses at trial. The
State introduced testimony from the alleged victim, L.S., her sister, Officer Jacob Scavone
and Sergeant Adam Shanks from the Helena Police Department, and Dr. Sheri Vanino, a
licensed clinical psychologist specialized in psychological trauma. The State presented
photographs of L.S.’s facial injury and a video with a transcript of Officer Scavone
interviewing Garay.
¶4 L.S. testified that she met Garay in 2011 and maintained inconsistent contact with
him until 2018. In 2018, Garay was living in another state, and he and L.S. established a
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long-distance relationship. In the spring of 2019, Garay stayed at L.S.’s apartment in
Montana during a visit. L.S. testified that on April 6, 2019, she and Garay got into an
argument, and he put his arm around her neck from behind and caused her to pass out. That
night, she stayed in a hotel room without Garay. L.S. returned to her apartment the
following morning, April 7, 2019, and was surprised to find Garay there because he did
not have a key. They began to argue again. L.S. testified that they were in her kitchen,
and she remembered looking at knives as Garay was strangling her but did not recall
whether she grabbed one or not. L.S. passed out, and when she regained consciousness,
she had an injury to her head that she believed resulted from striking her head on the
refrigerator when she passed out. L.S. testified that upon regaining consciousness, Garay
shoved meth into her mouth, forcing her to ingest it. After Garay left the apartment, L.S.’s
sister arrived and took L.S. to the hospital. On the way to the hospital, L.S. consumed
psychedelic mushrooms she had stored in her purse.
¶5 Officer Scavone testified that he responded to a report that L.S. was being treated at
the hospital on April 7, 2019. He testified that L.S. reported Garay strangled her, including
earlier that day, and she injured her face on the refrigerator in the kitchen of her apartment
when she passed out. Sergeant Shanks testified that when he interviewed L.S. a few days
later, she recounted the story of Garay strangling her. Officer Scavone testified that six
months after the initial interview of L.S., he conducted an interview with Garay in which
Garay admitted that a physical altercation between he and L.S. occurred in the kitchen of
her apartment on April 7, 2019. However, Garay claimed that he grabbed L.S. after she
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swung a knife at him and, once she dropped the knife, she hit her head on the refrigerator
when he let her go.
¶6 Garay moved for a mistrial on several occasions during the trial. The first motion
was in response to L.S.’s testimony that she kept in touch with Garay “on and off” since
2011 because “[h]e was incarcerated some of the times.” The District Court immediately
sustained defense counsel’s objection and instructed the jury to disregard L.S.’s statement,
stating: “That means you cannot consider her last statement when you deliberate this
case . . .[i]s that understood?” As the direct examination of L.S. continued, the prosecutor
asked L.S. about her history of drug addiction and her recent sobriety. When the prosecutor
asked L.S. whether she could “describe how drug use played into [her] relationship, if at
all, with [Garay],” defense counsel objected after L.S. responded, “well, yes.” The District
Court sustained the objection. Outside the presence of the jury, the District Court heard
the parties’ arguments concerning testimony of L.S.’s and Garay’s drug use. The District
Court ruled that under the transaction rule, L.S. was allowed to testify about her own drug
use and addiction issues and that Garay shoved meth into her mouth. However, the District
Court limited L.S.’s testimony to the events subsequent to the allegation that Garay
strangled L.S. in her apartment on April 7, 2019, and prohibited L.S. from testifying that
she and Garay historically engaged in consensual use of methamphetamine. When the
court offered to provide the jury a curative instruction about L.S.’s testimony regarding
drug use with Garay, defense counsel declined the offer and moved for a mistrial. The
court reserved its decision until the State completed its case-in-chief.
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¶7 Garay’s second motion for a mistrial was after L.S. testified that Garay had
previously provided her the psychedelic mushrooms she voluntarily consumed on April 7,
2019. The court sustained Garay’s objection, advised it was striking the statement from
the record, instructed the jury to disregard the statement in its deliberations, and ordered
the prosecutor to move on. Garay argued a mistrial was warranted because he would not
receive a fair trial after L.S. alleged that Garay provided her with the psychedelic
mushrooms. Once again, the court reserved its decision until the State completed its
case-in-chief.
¶8 Garay moved for a mistrial a third time after three other instances of testimony to
which defense counsel objected. During cross-examination of L.S., defense counsel asked
whether her sexual activity with Garay had been consensual. L.S. agreed that it had been
consensual but claimed that there had been “an incident [she] had not yet discussed
here. . . .” When the State asked L.S. whether she had previously “attempt[ed] to obtain
an order of protection against” Garay, defense counsel objected, and the Court sustained
the objection. During redirect examination of Sergeant Shanks, the prosecutor asked
whether Garay was lawfully present in L.S.’s home on April 7, 2019. After the Court did
not allow Sergeant Shanks to answer the question, defense counsel objected to the
prosecutor’s line of questioning. The court excused the jury and instructed the prosecutor
not to continue with her line of questioning because it called for a legal conclusion that was
not appropriate for Sergeant Shanks to answer. When the jury returned, the court instructed
the jury to “disregard the last question asked by the State to the witness and any possible
answer he may have provided or any inference from that. . . .”
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¶9 At the close of the State’s case-in-chief, Garay again moved for a mistrial. This
time, the court reserved its decision until the jury returned a verdict. The jury acquitted
Garay of Count 1 and found him guilty of Count 2. The District Court denied Garay’s
motions for a mistrial, reasoning that the inadmissible evidence did not have a prejudicial
effect on the jury or contribute to the conviction.
¶10 This Court reviews a district court’s evidentiary rulings for an abuse of discretion.
State v. Zimmerman, 2018 MT 94, ¶ 13, 391 Mont. 210, 417 P.3d 289 (internal citation
omitted). A district court “has broad discretion in determining the relevancy and
admissibility of evidence.” State v. French, 2018 MT 289, ¶ 28, 393 Mont. 364, 431 P.3d
332. We review a district court’s denial of a motion for a mistrial for abuse of discretion.
State v. Krause, 2021 MT 24, ¶ 11, 403 Mont. 105, 480 P.3d 222. “We apply a deferential
standard to the district court because the trial judge is in the best position to make the
determination.” State v. Pierce, 2016 MT 308, ¶ 17, 385 Mont. 439, 384 P.3d 1042(internal citation omitted). “A mistrial is an extreme remedy and may only be granted for
manifest necessity as required by the ends of justice.” State v. Denny, 2021 MT 104, ¶ 13,
404 Mont. 116, 485 P.3d 1227 (internal citation omitted). A district court abuses its
discretion when it “acts arbitrarily without the employment of conscientious judgment or
exceeds the bounds of reason, resulting in substantial injustice.” Zimmerman, ¶ 13 (internal
quotation and citation omitted).
¶11 Garay contends that the District Court abused its discretion when it allowed the State
to introduce L.S.’s allegation that Garay shoved meth in her mouth after strangling her on
April 7, 2019. The transaction rule states: “Where the declaration, act, or omission forms
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part of a transaction which is itself the fact in dispute or evidence of that fact, such
declaration, act, or omission is evidence as part of the transaction.” Section 26-1-103,
MCA. “Admissibility under the transaction rule is predicated on the jury’s right to hear
what [transpired] immediately prior and subsequent to the commission of the offense
charged, so that they may evaluate the evidence in the context in which the criminal act
occurred.” State v. Detonancour, 2001 MT 213, ¶ 29, 306 Mont. 389, 34 P.3d 487 (internal
quotation and citations omitted). Evidence admissible under the transaction rule may still
“be excluded if its probative value is substantially outweighed by the danger of unfair
prejudice.” Detonancour, ¶ 31 (citing M. R. Evid. 403). M. R. Evid. 403 “does not require
exclusion of relevant evidence simply because it is prejudicial.” State v. Pulst, 2015 MT
184, ¶ 18, 379 Mont. 494, 351 P.3d 687. “Indeed, most evidence offered by the prosecution
in a criminal trial will be prejudicial to the defendant.” Pulst, ¶ 18, (internal citations
omitted). “Acts of a defendant subsequent to the alleged commission of the crime, and
intertwined therewith, are highly probative,” and “[w]hether the probative value is
outweighed by the prejudicial effect is within the trial court’s discretion.” Detonancour,
¶¶ 29, 31 (internal citations omitted).
¶12 The District Court allowed the State to introduce L.S.’s testimony that Garay shoved
meth in her mouth because it reasoned that the allegation was admissible under the
transaction rule in that it occurred immediately subsequent to the commission of the events
upon which Count 2 was based. Garay argues that the District Court violated the
transaction rule because the court did not limit the use of the allegation. The District Court
was not required to limit the use of L.S.’s allegation because it formed part of the
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transaction of events when Garay strangled L.S. on April 7, 2019. It is not as if this
occurred at some remote period or place, removed from the strangulation. L.S. testified
that Garay shoved the meth in her mouth when she regained consciousness after having
passed out from the strangulation. The District Court limited L.S.’s testimony to the events
subsequent to the acts upon which Count 2 was based and prohibited L.S. from testifying
that she and Garay historically engaged in consensual use of methamphetamine. The
District Court did not abuse its discretion by admitting the testimony under the transaction
rule.
¶13 Garay argues the District Court erred by allowing L.S.’s testimony that Garay
shoved meth into her mouth because the allegation did not prove or disprove any element
of the charged offense. But Garay’s actions of shoving meth into L.S.’s mouth were, if
nothing else, probative as it pertained to his claim of self-defense. Garay claimed he
choked L.S. while defending himself from her alleged assault. Scouring the annals of
criminal justice cases, we are hard-pressed to find another instance of a person defending
himself with a handful of meth to the mouth. Garay’s actions are hardly consistent with a
claim of self-defense.
¶14 Garay also fails to demonstrate that the allegation’s probative value was
substantially outweighed by any prejudicial effect. While a jury no doubt looks
unfavorably at someone who forces another to ingest drugs against their will, M. R. Evid.
403 “does not require exclusion of relevant evidence simply because it is prejudicial.”
Pulst, ¶ 18. Garay cannot have it both ways—contending he was acting in self-defense
while seeking to exclude testimony regarding actions that are wholly inconsistent with that
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contention because they are prejudicial. The District Court did not abuse its discretion
when it allowed the State to introduce L.S.’s allegation that Garay shoved meth in her
mouth after strangling her on April 7, 2019.
¶15 Garay contends that the District Court abused its discretion when it denied his
motions for a mistrial. Garay argues that the District Court should have granted his motions
for a mistrial because the State and its witnesses repeatedly made improper comments
during trial concerning Garay’s prior incarceration and allegations of bad acts. Garay
asserts that the cumulative effect of these comments created unfair prejudice against him
and deprived him of a fair trial.
When we review a district court’s denial of a motion for a mistrial, we first consider
whether the disputed comments were improper; if so, we consider “whether the improper
comments prejudiced the defendant’s right to a fair trial.” French, ¶ 24 (internal citation
omitted). A mistrial should be denied when the errors “do not affect the substantial rights
of the defendant and the record is sufficient to establish the defendant’s guilt.” Denny, ¶ 16
(internal citation omitted). A mistrial is appropriate “when a reasonable possibility exists
that inadmissible evidence may have contributed to the conviction.” Denny, ¶ 16 (internal
quotation and citation omitted).
¶16 Other than the instance when defense counsel interrupted L.S.’s comment
concerning non-consensual sex and ended its own line of questioning, the District Court
either interrupted the improper testimony itself or sustained objections by defense counsel.
Therefore, we treat this testimony as improper and must determine whether it prejudiced
Garay’s right to a fair trial.
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¶17 Garay argues that his right to a fair trial was prejudiced by L.S. testifying that she
kept in touch with Garay “on and off” since 2011 because “[h]e was incarcerated some of
the times.” The record does not support Garay’s assertion that this testimony prejudiced
his right to a fair trial. The District Court sustained the objection by defense counsel before
L.S. could complete her sentence. The court then provided a curative instruction to the
jury. Garay does not argue that the curative instruction was incorrect, and there is no
evidence in the record to overturn our presumption that juries follow the law provided by
courts. See State v. LaFournaise, 2022 MT 36, ¶ 41, 407 Mont. 399, 504 P.3d 486 (“We
have long noted that juries are presumed to follow the law provided by courts.”).
¶18 Garay argues that his right to a fair trial was prejudiced because the State and its
witnesses made improper comments concerning allegations of bad acts. Reversal on a
claim of prejudicial prior bad acts rests on whether the jury’s conviction was soundly
achieved. State v. Torres, 2021 MT 301, ¶ 44, 406 Mont. 353, 498 P.3d 1256 (internal
quotation and citations omitted). “[E]vidence of prior bad acts rises to unfair prejudice
only if it arouses the jury’s hostility or sympathy for one side without regard to its probative
value, if it confuses or misleads the trier of fact, or if it unduly distracts from the main
issues.” Torres, ¶ 42 (internal quotation and citations omitted).
¶19 Garay asserts conclusory allegations that he was prejudiced by the improper
comments. But except for the comment that defense counsel interrupted himself, the
District Court immediately sustained objections by defense counsel or interrupted the
testimony itself. The court also instructed the jury to disregard testimony and redirected
the attention of the parties and jury away from irrelevant and potentially prejudicial
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testimony. Garay’s conclusory allegations do not establish he was prejudiced by the
improper comments. See State v. Smith, 2020 MT 304, ¶ 16, 402 Mont. 206, 476 P.3d
1178, ¶ 16 (“The defendant must establish prejudice; a mere allegation of error without
proof of prejudice is inadequate . . . .”).
¶20 Garay’s claims that the jury was prejudiced against him are also belied by the jury’s
verdict. Although the jury convicted Garay of Count 2, it acquitted him of Count 1. In
State v. Colburn, 2018 MT 141, 391 Mont. 449, 419 P.3d 1196, we held that the admission
of potentially prejudicial evidence “[c]learly did not distract or incite the jury’s hostility
towards” the defendant when the jury acquitted him of some charges. In this case, the jury
was presented with two identical charges—Strangulation of a Partner or Family Member—
occurring on back-to-back days. There is nothing in this record to suggest that the jury’s
hostility was incited towards Garay on one count and not the other. Rather, the record
suggests that the jury weighed the evidence, including L.S.’s credibility, and determined
that the State carried its burden as to one of the counts but not the other.
¶21 Garay argues that the cumulative effect of the improper comments created unfair
prejudice against him and deprived him of a fair trial. Specifically, Garay argues that “the
District Court’s errors of not declaring a mistrial based on the jury’s exposure to [Garay]’s
prior incarcerations and other uncharged bad acts, combined with permitting the State to
introduce allegations that [Garay] ‘shoved meth’ in L.S.’s mouth, were mutually
exacerbating.”
¶22 “Where individual errors alone are insufficient to warrant reversal, the sum of those
errors can nevertheless serve as a basis for reversal under the cumulative error doctrine.”
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Denny, ¶ 24 (internal citation omitted). However, “[a] [d]efendant is entitled to a fair trial,
not to a trial free from errors,” and “the cumulative effect of errors will rarely merit
reversal.” Smith, ¶¶ 16-17 (internal citation omitted).
¶23 As it pertains to L.S.’s testimony that Garay shoved meth in her mouth, we have
held that the District Court did not err by allowing this testimony. As it pertains to the
comments of prior bad acts, we have considered their potential prejudicial effect, both
individually and cumulatively. As noted above, the record suggests that the jury weighed
the evidence, including L.S.’s credibility, and determined that the State carried its burden
as to one of the counts but not the other. Garay is not entitled to reversal based on
cumulative error.
¶24 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. This appeal presents
no constitutional issues, no issues of first impression, and does not establish new precedent
or modify existing precedent. Affirmed.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE
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