State v. Henderson

2005 MT 333, 125 P.3d 1132, 330 Mont. 34, 2005 Mont. LEXIS 513
Montana Supreme Court·Decided December 20, 2005·No. 04-694·Published·Cited by 8 cases

Opinions

JUSTICE COTTER

delivered the Opinion of the Court.

¶1 Darnel Henderson (Henderson) appeals from the judgment and sentence entered by the Eighth Judicial District Court, Cascade County, upon a jury verdict convicting him of the felony offenses of arson, burglary, criminal endangerment and tampering with physical evidence. We affirm.

¶2 Henderson raises two issues on appeal:

¶3 1. Did the District Court abuse its discretion in allowing a firefighter to testify as a lay witness regarding certain aspects of his investigation?

¶4 2. Were Henderson’s due process rights violated at sentencing?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 The State of Montana charged Henderson with four felonies, alleging he unlawfully broke into an apartment, set fire to it, endangered building occupants and concealed cigarette lighters after arrest. Henderson pled not guilty, and the case proceeded to trial. Eleven witnesses, including firefighter Bobby Wiench, testified for the State, and three witnesses testified for the defense.

¶6 During Wiench’s testimony, defense counsel objected numerous times on grounds that Wiench was not qualified as an expert and, therefore, certain testimony lacked foundation. The District Court overruled the first such objection after the prosecutor explained the type of testimony anticipated in response to his question. After the second objection, the court allowed defense counsel to voir dire the witness and ultimately overruled the objection, determining Wiench could testify as a lay witness based on his experience as a firefighter. The court also overruled subsequent objections.

¶7 Ultimately, the jury convicted Henderson of all four felony offenses. At sentencing, the State offered sixty (60) years without parole. Previously, however, the State had offered fifty (50) years with twenty-five (25) years suspended. Henderson rejected this offer. The District Court sentenced Henderson to twenty (20) years for felony arson, twenty (20) years for felony burglary, and five (5) years for felony evidence tampering. These sentences were to run concurrently. The court also sentenced him to fifty (50) years for felony criminal [36] endangerment to run consecutively with the other three felony counts. The sentences were to be served at Montana State Prison (MSP). Henderson appeals. We set forth additional facts as necessary in the discussion below.

STANDARD OF REVIEW

¶8 We review rulings on the admissibility of evidence, including oral testimony, for an abuse of discretion. State v. Cesnik, 2005 MT 257, ¶ 12, 329 Mont. 63, ¶ 12, 122 P.3d 456, ¶ 12 (citations omitted).

DISCUSSION

¶9 Did the District Court abuse its discretion in allowing a firefighter to testify as a lay witness regarding certain aspects of his investigation?

¶10 Rules 701 and 702, M.R.Evid., address lay and expert testimony. Rule 701, M.R.Evid., provides:

[i]f the witness is not testifying as an expert, 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.

Rule 702, M.R.Evid., provides:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Pursuant to § 46-16-201, MCA, Rules 701 and 702, M.R.Evid., apply in criminal cases as well as in civil cases.

¶11 Henderson asserts the District Court abused its discretion in admitting Wiench’s testimony regarding points of origin, pour patterns, the fire pattern, the lack of evidence of mechanical and electrical causes, the risk to building occupants and the possibility the fire could have blocked exits. He contends the admission of this testimony prejudiced him with respect to the arson, burglary and criminal endangerment convictions because the testimony was “the foundation of the State’s case” and was offered to establish the fire “was intentional and not an accident.” Henderson does not challenge his conviction of the offense of tampering with physical evidence; therefore, we do not address it.

¶12 Defense counsel did not request a continuing objection at trial, nor does Henderson assert on appeal that we should construe his [37] objections as continuing objections. We do not address an argument or issue when the appellant has failed to contemporaneously object or otherwise raise the issue at trial. State v. Todd, 2005 MT 108, ¶ 19, 327 Mont. 65, ¶ 19, 111 P.3d 677, ¶ 19 (citation omitted). Here, the unchallenged testimony includes Wiench’s definition of the term “point of origin” as “where the fire started,” his discussion of ruling out mechanical and electrical causes, and the following exchange regarding pour patterns:

Q: What exactly is the concept of a pour pattern?
A: It’s a pattern you look for where whatever substance has been poured will bum and will burn hotter than the rest of the area. So you’ll have an area that’s burned deeper than the other area. It hasn’t spread to the area-a piece of carpet, for example. Where the pour is, it’ll burn, but it won’t bum much past it if it’s caught fast enough to where the-the rest of the carpet.
Q: So that leaves a specific kind of burn damage, based upon the fires you’ve worked?
A: Yes, sir.

As stated, Henderson did not object to these portions of Wiench’s testimony and they remain unchallenged.

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State v. Henderson, 2005 MT 333, 125 P.3d 1132, 330 Mont. 34, 2005 Mont. LEXIS 513 (Mo. 2005).

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