No. 13475
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
STATE OF MONTANA,
Plaintiff and Respondent,
CARL GAFFORD,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable ,
- Judge presiding.
Counsel of Record:
For Appellant:
Edward A. Cummings argued, Missoula, Montana
For Respondent:
Hon. Michael Greely, Attorney General, Helena,
Montana
Dennis Moreen argued, Assistant Attorney General,
Helena, Montana
Richard P. Heinz argued, County Attorney, Polson,
Montana
Submitted: January 13, 1977
Decided :
-MAY 3 1977
Filed: B
N 3ln
g
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant was charged with two counts of sexual inter-
course without consent causing bodily injury. Following a jury
trial in district court, Lake County, defendant was convicted
of both counts. Judge Jack L. Green entered judgment sentencing
defendant to consecutive 20 year terms in the state prison on
each count. Defendant appeals from the judgment of conviction.
The evidence at trial disclosed that on the evening
of June 2 9 , 1975, the victim went to the Diamond Horseshoe, a
Polson area bar. She was accompanied by her sister Charlotte.
Another sister, Debbie, later joined the two girls at the Diamond
Horseshoe. While at the bar, the victim noticed defendant Carl
Gafford motion to her from across the dance floor. Defendant
was married to the victim's sister Debbie.
The victim left the table where she and her two sisters
were seated and joined defendant. The two conversed for a few
minutes and thereafter left the bar. According to the victim,
defendant asked her to go for a ride and talk over the problems
he was having with her sister. Defendant denied this. In any
event defendant hid his motorcycle near a rural dirt road out-
side Polson and joined the victim in her car. They then drove
to a bar near Dayton, Montana and had two beers each. When
they left the bar in Dayton, defendant purchased a bottle of
wine with the victim selecting the brand.
They drove around the countryside drinking the wine and
listening to the car stereo. Sometime around midnight as they
were returning to Polson, defendant who was driving the car
stopped alongside the highway in order to relieve himself. There-
after as defendant attempted to drive the car back on the highway,
the car became stuck. The victim became alarmed that her car had
been damaged and an argument followed. At this point the evi-
dence is conflicting as to whether the defendant struck, choked,
slapped or sat on the victim. She testified she was forced
to accompany defendant into a nearby field where she was
subjected to sexual intercourse without her consent. She
testified defendant slapped her around and struck her on the
nose with his fist whereby she suffered bodily injury. De-
fendant testified that no sexual intercourse took place on
this occasion.
Thereafter defendant and the victim returned to the
stuck automobile. A passing motorist stopped and with the aid
of a rope freed the car. Defendant and the victim then con-
tinued toward Polson and stopped where defendant had previous-
ly hidden his motorcycle. Both the victim and defendant testified
that sexual intercourse then occurred. Defendant testified
the intercourse was with consent, while the victim testified it
was without her consent and that she suffered bodily injury.
The victim returned home and was examined the follow-
ing day by Dr. Coriell, the family physician. The examination
revealed several bruises and abrasions on various parts of her
face and body. Tests showed the presence of sperm in her vaginal
tract. The Lake County attorney was notified.
On June 30, 1975, the county attorney filed a complaint
in justice court charging defendant with two counts of sexual
intercourse without consent. Defendant was arrested the same
day, the public defender was appointed to represent him, bail
was fixed and defendant was released on bail. Subsequently
defendant waived preliminary hearing and was bound over to
district court.
On July 30, 1975, the county attorney filed an informa-
tion in the district court charging defendant with two counts of
sexual intercourse without consent during which the victim
suffered bodily injury. Defendant appeared with the public
defender, was arraigned and pleaded "not guilty" to each count,
waived his right to a speedy trial, and was released on
bail previously posted.
On February 4, 1976, the district court set the date of
March 1, 1976 for jury trial. On February 6, new counsel for
defendant was substituted for the public defender. On that
same date defendant's new counsel filed a written motion to
require the state, among other things to provide defendant with
a list of witnesses intended to be called by the state at trial,
to require the state to produce "all documents, papers, or
things which the state intends to introduce into evidence at
trial", and all pictures of the victim or of "any item or locale
connected with the events upon which these charges were based."
The district court granted all these motions.
On February 17, defendant's counsel filed a written
notice to take the deposition of the victim and to secure "the
names and addresses of persons who have information relevant or
material to a determination of the facts surrounding the present
charge." The motion of the state to depose the victim was granted
and the county attorney assured the court "that to the extent
that any names of witnesses who do become known to the State, that
they will be turned over to" defense counsel.
The deposition of the victim was taken on February 23.
She stated X-rays had been taken of her nose. She further testi-
fied these X-rays were taken at the request of the examining
physician, Dr. Coriell. At least one week prior to trial, both
the county attorney and defendant's attorney were in possession
of a written report by Dr. Coriell that made no mention of
X-rays or possible fractures. At the time of the deposition the
victim authorized Dr. Coriell to release medical information
including tests to defense counsel.
The trial began on Wednesday, March 3. On the weekend
of March 6-7, the county attorney telephoned defense counsel
and disclosed the existence of X-rays of the victim taken the
day following the alleged crime which disclosed a nondisplaced
fracture of the nose.
On Monday, March 8, when the trial reconvened, the
county attorney moved to enter the name of Dr. avid Dahlgren,
the radiologist who examined the X-rays, as a witness for the
state. Defense counsel objected and requested that in the
event the motion was granted a continuance of one week to have
the X-rays evaluated by an independent medical expert. A con-
tinuance of one day was granted by the court.
Testimony was concluded on March 11 and the case was
submitted to the jury. The jury returned a verdict of guilty
on both counts. Judgment was entered. Defendant appeals from
the judgment.
Defendant raises three specifications of error:
(1) Denial of defendant's motion for mistrial during
jury selection based upon nonresponsive and prejudicial answers
of two prospective jurors.
(2) Reversible error in permitting impeachment of defend-
ant based on a prior conviction of a felony.
( 3 ) Reversible error in permitting the state to add the
name of the radiologist as an additional witness for the state
in the middle of the trial.
Directing our attention to the first specification of
error, the record discloses that at the beginning of the voir
dire examination of prospective jurors, the trial judge asked
the whole panel if any of them knew any of the parties. Pros-
pective juror Finley indicated he knew defendant and stated at
one time he was in jail with defendant. Defense counsel asked
if this jailing was at the time of the arrest of defendant on
the charges now before the court. Finley answered that he
thought it was not--it was on a DWI charge. Additionally,
during voir dire examination by defense counsel, prospective
juror Ducharme was asked whether his association with defend-
ant in high school would cause him to be prejudiced against
the defendant. Ducharme answered he knew defendant was in
trouble before, but that would not prejudice him.
As to Finley's answers, we find no reversible error on
two grounds: (1) Defendant's motion for mistrial was not made
at the first recess following the answers, and (2) the answers
were invited by the further questions of defense counsel.
Concerning Ducharme's answer, we do not consider it so
nonresponsive as to constitute reversible error. Defense coun-
sel could have limited his question to a "yes" or "no" answer
and failed to do so. Ducharme's answer disclosing his knowledge
and indicating it would not prejudice him, although perhaps
technically broader than the question asked, was within the
bounds of a normal response by a layman unversed in the intrica-
cies of language and correct legal procedure. We find no revers-
ible error in the district court's denial of defendant's motion
for a mistrial.
The second specification of error concerns the state's
right to impeach the defendant by evidence of a prior conviction
of a felony. Defendant argues this is impermissible since adop-
tion of the 1972 Montana Constitution and repeal of section
94-4723, R.C.M. 1947, shortly after the new Constitution became
effective. Our attention is directed to the new Evidence Code,
effective July 1, 1977, that eliminates this method of impeach-
ment and particularly to the Commission Comments in connection
therewith.
Here, the district court denied a motion of defense
counsel outside the presence of the jury to bar the prosecution
from bringing to the jury's attention the fact that defendant
had previously been convicted of a felony. Thereafter the
state, during cross-examination of defendant in his case-in-
chief, asked this question:
"Q. Carl Gafford, have you ever been convicted
of a felony? A. When I was 19, I pleaded guilty
to receiving stolen property."
During final argument, the county attorney in discussing where
the truth lies, made these remarks:
" * * * You are to measure this case from the
mouth of the witnesses who sat here. Is this
girl telling the truth? You are judging her
there. You are judging him there sitting there
also and you may consider the fact that in
judging his credibility the fact that he is a
convicted felon."
Prior to the 1972 Montana Constitution it had long been
the law in Montana that a witness could be impeached by evidence
of a prior conviction of a felony. Section 94-4723, R.C.M. 1947;
Section 93-1901-11, R.C.M. 1947; State v. Coloff, 125 Mont. 31,
231 P.2d 343; State v. Romero, 161 Mont. 333, 505 P.2d 1207.
Art. 11, Section 28, 1972 Montana Constitution contains this
provision:
"Rights of the convicted. Laws for the punish-
ment of crime shall be founded on the principles
of prevention and reformation. Full rights are
restored by termination of state supervision for
any offense aqainst the state." (Emphasis added.)
Section 94-4723 has been repealed. Section 95-2227, R.C.M.
1947, has been enacted and provides in pertinent part:
"Effect of conviction. * * *
"(3) When a person has been deprived of any of
his civil or constitutional rights by reason of
conviction for an offense and his sentence has
expired or he has been pardoned he shall be
restored to all civil rights and full citizenship,
the same as if such conviction had not occurred."
Section 93-1901-11, R.C.M. 1947, was not repealed and
remains the law of Montana. It provides the methods of impeach-
ment and includes:
" * * * it may be shown by the examination of the
witness, or the record of judgment, that he has
been convicted of a felony."
Section 93-2101-2, R.C.M. 1947, also permits impeachment by
evidence of a prior conviction of a felony.
Defendant contends section 93-1901-11 was superseded
by the enactment of section 95-2227. We do not so construe it.
The legislature specifically repealed section 94-4723 and made
no mention of section 93-1901-11 or 93-2101-2. Repeals by
implication are not favored. State v. Winter, 129 Mont. 207,
285 P.2d 149; State ex rel. Dunn v. Ayers, 112 Mont. 120, 113
P.2d 785; State v. Schnell, 107 Mont. 579, 88 P.2d 19. In
Fletcher v. Paige, 124 Mont. 114, 119, 220 P.2d 484, it is
stated :
"It will not be presumed that a subsequent enact-
ment of the legislature intended to repeal former
laws upon the subject when such former laws were
not mentioned."
An implied repeal of a statute will not be so held, absent a
clear legislative intent to that effect. State v. Lagerquist,
152 Mont. 21, 445 P.2d 910; Teamsters et al. v. Mont. Liquor
Control Board, 155 Mont. 300, 471 P.2d 541; Fletcher v. Paige,
supra. Here there is none.
Defendant also argues that sections 93-1901-11 and 93-
2101-2, R.C.M. 1947, are part of the civil code and have no
application to criminal proceedings. The rules of evidence
applicable to civil proceedings have long been held applicable
to criminal proceedings. Section 95-3001, R.C.M. 1947, (Ehrmerly
section 94-7209); State v. O'Neill, 76 Mont. 526, 248 P. 215;
State v. Coloff, 125 Mont. 31, 231 P.2d 343; State v. Romero,
161 Mont. 333, 505 P.2d 1207.
Defendant advances the position that permitting impeach-
ment by evidence of a prior conviction of a felony is uncon-
stitutional under the 1972 Montana Constitution. He contends
that Art. 11, Section 28, providing that full rights are restored
by termination of state supervision for any offense against
the state, prohibits this method of impeachment. In our view
bis Constitutional provision cannot be given such a broad
and sweeping construction. In construing and interpreting
constitutional provisions, an interpretation that achieves a
reasonable result is favored. 2A Sutherland Statutory Construc-
tion, 4th Ed., ,
§ 45.12, p. 37 and cases cited therein. Sec-
tion 49-134, R.C.M. 1947. State ex rel. Ronish v. School
Dist. No. 1, 136 Mont. 453, 348 P.2d 797; Keller v. Smith,
Mont . , 553 P.2d 1002, 33 St.Rep. 828. To construe Art. 11,
Section 28 in the sense contended by defendant would prohibit a
sentencing judge from hearing or considering the prior criminal
record of a convicted felon in determining the sentence to be
imposed; it would prohibit an employer such as a bank, a large
supermarket, or any retail business handling money from refusing
employment as a teller or cashier to a prior convicted embezzler
or thief by reason thereof; and it would prohibit a state insti-
tution housing juveniles from refusing employment to a convicted
child molester by reason of such prior conviction. Examples
abound illustrating the unreasonableness of such construction.
We refuse to give this constitutional provision such absolute,
broad and sweeping construction.
In our view the constitutional provision refers to those
rights commonly considered political and civil rights incident
to citizenship such as the right to vote, the right to hold
public office, the right to serve as a juror in our courts and
the panoply of rights possessed by all citizens under the laws
of the land. It has no reference to an individual's character-
istics, record, or previous conduct demonstrated by a prior
felony conviction.
Defendant further states his constitutional right to
appear and defend himself in a criminal proceeding in person
and by counsel is trespassed if his credibility can be impeached
by a prior felony conviction. Art. 11, Section 24, 1972
Montana Constitution. We find no merit in this contention.
The testimony of an accused, as in the case of any other
witness, is subject to attack by impeachment. Prohibiting
impeachment as a violation of an accused's right to defend
himself is tantamount to requiring the jury to don blinders
in its search for the truth.
Defendant also contends that permitting impeachment
by prior conviction of a felony denies a prior convicted felon
the equal protection of the law in violation of Art. 11, Section
4, 1972 Montana Constitution. He argues this singles out a
special class of persons, i.e. prior convicted felons, for
special treat which is constitutionally impermissible. Classi-
fications for different treatment are not per se unconstitutional.
State v. Craig, Mont . , 545 P.2d 649, 33 St.Rep. 86;
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337,
55 L Ed 369; Royster Guano Gb.v.Virginia, 253 U.S. 412, 40 S.Ct.
560, 64 L Ed 989. It is only if the classification is unreason-
able that the constitution is violated. Regardless of the legis-
lative wisdom or merit of singling out prior convicted felons
for special treatment, the legislative classification cannot
be said to contravene the standard of reasonableness.
Finally, we reject defendant's argument based on the
proposed new code of evidence. Whatever may be said of the pros
and cons of abolishing impeachment by evidence of a prior con-
viction of a felony, the new evidence code was not in effect
at the time of trial of this case and consequently has no
application.
Defendant's third specification of error is whether
permitting the addition of the radiologist as an additional
state's witness in mid-trial was prejudicial and reversible error.
The controlling statute section 95-1803, R.C.M. 1947,
provides :
"Discovery, inspection, and notice. In all
criminal cases originally triable in district
court the following rules shall apply:
" (a) List of Witnesses:
"(1) For the purpose of notice only and to prevent
surprise, the prosecution shall furnish to the de-
fendant and file with the clerk of the court at
the time of arraignment, a list of the witnesses
intended to be called by the prosecution. The
prosecution may, any time after arraignment, add
to the list the names of any additional witnesses,
upon a showing of good cause. The list shall include
the names and addresses of the witnesses.
" (2) The requirement of subsection (a) (I), of this
section, shall not apply to rebuttal witnesses.
"(b) Subpoenas may be used as a discovery device
as provided for under section 95-1801(d).
"(c) On motion of any party within a reasonable
time before trial all parties shall produce at a
reasonable time and place designated by the court
all documents, papers or things which each party
intends to introduce in evidence. Thereupon any
party shall, in the presence of a person designated
by the court, be permitted to inspect or copy any
such documents, papers or things. The order shall
specify the time, place and manner of making the
inspection and of taking the copies or photographs
and may prescribe such terms and conditions as are
just. If the evidence relates to scientific tests
or experiments the opposing party shall, if prac-
ticable, be permitted to be present during the
tests and to inspect the results thereof. Upon a
sufficient showing the court may at any time order
that the discovery or inspection be denied, res-
tricted or deferred, or make other appropriate
orders. If, subsequent to compliance with an order
issued pursuant to this rule, and prior to or
during trial, a party discovers additional material
previously requested which is subject to discovery
or inspection under the rule he shall promptly
notify the other party or his attorney or the court
of the existence of the additional material. The
court shall exclude any evidence not presented for
inspection or copying pursuant to this rule, unless
good cause is shown for failure to comply. In the
latter case the opposing party shall be entitled
to recess or a continuation during which it may
inspect or copy the evidence in the manner provided
for above.
"(d) For purpose of notice only and to prevent
surprise, the defendant shall furnish to the
prosecution and file with the clerk of the court
at the time of entering his plea of not guilty
or within ten (10) days thereafter or at such
later time as the court may for good cause permit,
a statement of intention to interpose the defense
of insanity, self-defense or alibi. If the de-
fendant intends to interpose any of these defenses,
he shall also furnish to the prosecution and file
with the clerk of the court, the names and addresses
of all witnesses to be called by the defense in
support thereof. The defendant may, prior to trial,
upon motion and showing of good cause, add to the
list of witnesses the names of any additional wit-
nesses. After the trial commences, no witnesses
may be called by the defendant in support of these
defenses, unless the name is included on such list,
except upon good cause shown.
" ( e ) All matters which are privileged upon the
trial, are privileged against disclosure through
any discovery procedure."
This statute allows the addition of witnesses after
trial has commenced on a showing of good cause. Commission
Comments to section 95-1803, R.C.M. 1947; State v. Klein,
Mont . , 547 P.2d 75, 77, 33 St.Rep. 283, 286. "Good cause"
has been defined as "substantial reasonw--one that affords a
legal excuse. State v. Rozzell, 157 Mont. 443, 486 P.2d 877;
State v. Klein, supra. In Klein the Court stated:
"The court should first determine whether the need
for the additional witnesses and the reason for
their not being disclosed earlier is a 'substantial
reason'. It should then determine whether there
is prejudice based on surprise and whether this
surprise can be overcome by the granting of a con-
tinuance. If the surprise element can be overcome
by a continuance, then the witness should be endorsed
and the continuance granted. The spirit and intent
of the law is that names and addresses of potential
witnesses should be disclosed as soon as they are
known. "
As trial progresses, the showing necessary to establish "good
cause" should be more stringent. Commission Comments to section
95-1803, R.C.M. 1947, supra.
The circumstances of this case furnish the background of
the district court's ruling. Defendant's counsel took the dep-
osition of the victim eight days before trial. At that time
the following information was elicited by defense counsel:
"Q. you indicated that an X-ray had been
taken? A. Yes.
"Q. Where and by whom? A. Up at St. Joseph's
Hospital.
"Q. Who requested the X-ray? A. Dr. Coriell
said that I should have it X-rayed to make sure
that it wasn't broken."
Sometime the previous November, the public defender and then
counsel for defendant, had received a written medical report
from Dr. Coriell concerning his examination of the victim.
About a week prior to trial the county attorney received this
medical report. Defense counsel had discussed with Dr. Coriell
his examination of the victim. No mention of the X-rays in
question was made in the written reports or discussion by
Dr. Coriell.
Trial commenced on Wednesday, March 3. Jury selection
consumed the entire first day. On March 4 jury selection con-
tinued and thereafter general instructions were given the jury
by the court, the state made its opening statement, defendant
reserved his opening statement, and the victim was sworn and
testified. On Friday, March 5, the victim resumed her testi-
mony, photographic exhibits and a wine bottle were introduced,
the undersheriff testified, the jury examined the premises in-
volved in the incidents forming the basis of the charges, and
Dr. Coriell testified.
Over the weekend, the county attorney called defense
counsel and informed him that the state intended to present the
X-rays and would, for that purpose, request the endorsement of
a radiologist as an additional witness for the state.
When court reconvened on Monday, March 8, the state
moved to add the name of Dr. David Dahlgren, the radiologist
who read the X-rays, as an additional witness for the state
and represented to the court that the reason for the motion was
the inability of Dr. Coriell to recall whether or not such X-rays
were requested by him. The county attorney represented to the
court that Dr. Coriell had not advised either the victim or
her family of the findings of the X-rays by Dr. Dahlgren and
these were entirely unknown either to the victim or the state.
The county attorney represented he was surprised by Dr. Coriell's
testimony.
The motion was resisted by defense counsel on these
grounds: (1) The presence of the witness and the X-ray had
to have been known by the state from the onset of the trial,
(2) the state did not furnish defense counsel with the name
of the witness or the existence of the X-ray in response to
the motion requiring this, (3) Dr. Coriell had not indicated
the presence of the X-ray or the findings in his conversation
with defense counsel, and (4) it changed the whole complexion
of the trial and came as a surprise to defendant in the middle
of the trial.
Defense counsel moved for a week's continuance to take
the X-ray to an independent radiologist in Missoula for exam-
ination. Although some of the discussion went unreported in
the record, it appears from the trial judge's reported remarks
that defense counsel had already contacted Dr. Fritz in Missoula
for this purpose. The court granted a one day continuance.
No further request for additional time or continuance was made
by defense counsel, nor was any objection made to the reduced
time of continuance. Dr. Fritz was never called as a witness
for defendant at the trial.
The testimony of Dr. Dahlgren indicated he examined
the X-rays and they indicated a nondisplaced fracture of the
nose of the victim.
On appeal defendant argues that the late disclosure
of the X-rays and what they showed was permitted without a
showing of "good cause" and prejudiced the defendant in
defending himself after his theory of the case had been pre-
pared and the case was in mid-trial. He argues the state by
reasonable diligence could have discovered this evidence in
advance of trial rather than waiting until the middle of the
trial and "ambushing" defendant with a devastating and key
piece of its evidence.
In our view, the showing made by the state indicated
surprise. The state represented it knew nothing about the
findings of the X-rays and were surprised that Dr. Coriell
did not testify as to the X-rays and what they showed. De-
fendant's counsel stated the state failed to exercise reason-
able diligence prior to trial in uncovering this information.
This is a two-edged sword. Both the county attorney and de-
fense counsel knew about the X-rays prior to trial. Apparently
neither the state nor the defense knew what they disclosed.
Lacking this information, their relevance and significance were
unknown and unappreciated by either the state or the defense.
While the state could have followed through, it relied on Dr.
Coriell to cover this point. The defense could also have un-
covered this information by requesting authorization for exam-
ination of the X-rays, which they knew were at St. Joseph's
Hospital. We cannot say that the showing by the state did not
constitute "good cause" permitting the endorsement of the
radiologist as a witness for the state under the circumstances
here.
We emphasize that there is nothing to indicate an
intentional or deliberate withholding of evidence by the state.
Such are not the facts here, and case rulings under such facts
are not germane to this appeal.
Defendant objects to the one day continuance rather
than the week's continuance requested. At the time the one
day continuance was granted, defense counsel had already
contacted Dr. Fritz, the independent radiologist it sought to
read the X-rays. When trial was resumed defendant gave no
indication that he needed more time. He did not request an
additional continuance. He simply proceeded with the trial
without further objection. Under these circumstances, he will
not be heard to say on appeal that the one day continuance
was insufficient.
We notedefendant has applied to the Sentence Review
Board for a review of his sentence. This review has been de-
ferred pending outcome of this appeal. The equity and uniform-
ity of his sentence will be thoroughly reviewed and determined
by that body following this appeal. We reserve jurisdiction
to review the sentence thereafter.
The judgment of conviction is affirmed.
Justice
Chief Justice
L 7
................................
Justices
M r . J u s t i c e Daniel J. Shea d i s s e n t i n g :
I would r e v e r s e t h e judgment of c o n v i c t i o n and o r d e r a
new t r i a l . While perhaps each of t h e claimed e r r o r s would n o t
be s u f f i c i e n t i n i t s e l f t o c o n s t i t u t e r e v e r s i b l e e r r o r , when taken
t o g e t h e r I b e l i e v e t h e defendant was denied a f a i r t r i a l .
Because of t h e v o i r d i r e examination t h e p a s t conduct of
t h e defendant, u n r e l a t e d t o t h e c h a r g e s , was a l r e a d y i n f r o n t of
t h e j u r y b e f o r e t h e testimony s t a r t e d . (One j u r o r s t a t e d he knew
t h e defendant had been i n t r o u b l e b e f o r e b u t he could s t i l l be
f a i r and t h e o t h e r j u r o r s t a t e d he had been i n j a i l w i t h t h e de-
fendant when t h e defendant had been charged w i t h d r i v i n g under t h e
influence). I t i s t r u e t h a t t h e s e comments were i n v i t e d t o a
degree by defense counsel, b u t t h i s s t i l l d i d n o t f r e e t h e t r i a l
judge from a s s u r i n g t h a t t h e f u t u r e course of t h e t r i a l would n o t
f u r t h e r poison t h e t r i a l atmosphere.
As a s t e p i n a s s u r i n g t h i s f a i r t r i a l , t h e t r i a l c o u r t should
have g r a n t e d t h e defense motion i n limine t o prevent t h e j u r y
from knowing of d e f e n d a n t ' s p a s t f e l o n y c o n v i c t i o n . It i s c l e a r
t h a t c o n v i c t i o n , one o f r e c e i v i n g s t o l e n p r o p e r t y o b t a i n e d some
7 y e a r s b e f o r e t h e p r e s e n t t r i a l when t h e defendant was 19 y e a r s
of age, had no p r o b a t i v e v a l u e on t h e i s s u e o f rape t h a t was being
tried. The s o l e reason f o r allowing t h e p r o s e c u t i o n t o a s k
defendant i f he had e v e r been convicted of a felony was based on
s e c t i o n 93-1901-11, R.C.M. 1947, a s t a t u t e which enacted t h e o l d
common law r u l e t h a t one convicted of a f e l o n y i s l e s s worthy of
b e l i e f , and a c c o r d i n g l y t h e j u r y should know about t h e p r e v i o u s
felony conviction.
This statute is not a rule of substantive law; it is a rule
of evidence. It does not declare that a previous felony conviction
must be allowed in evidence; it simply states that it "may" be
allowed in evidence. Whether to allow the previous conviction in
evidence is a matter of discretion for the trial court, to be
determined according to the circumstances of each case, keeping in
mind that it is the ultimate duty of the trial court to assure
each defendant a fair trial. This duty cannot be watered down by
a blindfolded application of a statute, for the duty to assure a
fair trial transcends the mechanical application of rules of
evidence.
Given the circumstances of this case, it was prejudicial
error to allow the jury to consider the defendant's previous
felony conviction. This error was compounded by two events
occurring after the admission of this evidence.
During settlement of jury instructions the prosecutor
offered an instruction on how the jury was to consider evidence
of a previous felony conviction, but it also contained law on
other points already covered in the instructions. Defense
counsel objected on that ground and the trial court refused the
instruction. The prosecutor did not offer another instruction on
the subject. While defense counsel did not offer an instruction
on the point, nevertheless the cumulative evidence relating to
defendant's bad conduct was such that the trial judge on his
own motion should have given the jury a cautionary instruction.
Furthermore, it was improper for the prosecutor to comment on
the previous felony conviction in his final closing arguments
where he did not cover the subject in his own opening arguments
and defense counsel did not cover the subject in his own final
arguments. Had the prosecutor discussed the felony conviction
during his opening arguments defense counsel could have made
an informed decision as to how to handle the matter. But at
this stage of the arguments defense counsel could only object to
an improper argument, and this would only have served to heighten
and concentrate the jury's attention on his client's previous
felony conviction.
The prosecutor's remarks to which defense counsel could not
respond, were:
"You are to measure this case from the mouth
of the witnesses who sat here. Is this girl telling
the truth? You are judging her there. You are
judging him sitting there also and you may consider
the fact in judging his credibility the fact that he
is a convicted felon.
"Now, measure the truth.* * *I1
This combination of circumstances concerning defendant's
past conduct, wholly unrelated to the case, deprived him of a
,
fair trial.
It also was improper to allow the X-rays in evidence under
the circumstances as exist in this case. This is not a case where,
after due diligence was exercised, the prosecutor came up with
additional evidence he did not know existed. It is a case where
the state had been rewarded for a total lack of diligence. Here,
the prosecutor knew the X-rays existed but never bothered to
determine if they had any evidentiary value until the middle of
the trial.
The prosecutor should have known the X-rays existed when he
or his agents talked to the complaining witness to determine if
there was probable cause for a criminal complaint. In any event,
he most certainly knew the X-rays existed when the defense deposed
the complaining witness and she testified X-rays were taken of her
nose at St. Joseph's Hospital. But the first time the prosecutor
bothered t o determine i f t h e X-rays had any evidentiary value was
a f t e r both the complaining witness and h e r mother t e s t i f i e d a t
the t r i a l t h a t X-rays had been taken, even though t h e t r e a t i n g
doctor, D r . C o r i e l l , t e s t i f i e d he could not r e c a l l whether he
had ordered X-rays. I t was only a f t e r t h i s testimony t h a t an
e f f o r t was made t o see what t h e X-rays contained.
I disagree with the majority t h a t the s t a t e was l e g i t i m a t e l y
surprised because i t expected D r . C o r i e l l t o t e s t i f y a t t h e t r i a l
a s t o t h e X-rays and the r e s u l t s . Since t h e s t a t e had never
discussed t h e X-rays with him before t r i a l ( i n f a c t , h i s medical
r e p o r t did n o t even mention X-rays), i t i s i l l o g i c a l t o conclude
t h e s t a t e expected D r . C o r i e l l t o cover the subject of X-rays
a t the t r i a l . Furthermore, I think t h e s t a t e ' s f a i l u r e t o comply
with discovery concerning t h e X-rays would have precluded t h e
s t a t e from using D r . C o r i e l l o r anyone e l s e t o t e s t i f y concerning
t h e X-rays and the r e s u l t s .
Before t r i a l the defense moved t o discover a l l "documents,
papers and things" t h a t t h e prosecution intended t o introduce a t
t r i a l , and t h e court so ordered, with no objection from the s t a t e .
A t no time were the X-rays l i s t e d a s a p o t e n t i a l e x h i b i t and a t no
time before t r i a l was t h e defense ever given n o t i c e t h e s t a t e
intended t o introduce X-rays i n evidence. One of t h e very purposes
of t h e discovery s t a t u t e s i s t o prevent s u r p r i s e , and here the
defense was t o t a l l y j u s t i f i e d i n believing the s t a t e was not going
t o introduce any X-rays i n evidence. Accordingly, t h e t r i a l court
was i n e r r o r when i t allowed the endorsement of the r a d i o l o g i s t
on t h e Information t o g e t t h e X-rays and the r e s u l t s i n evidence.
For the foregoing reasons I would reverse the judgment of
conviction.
w
Just ice.