State v. Bain

No. 13754
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977

STATE OF MONTANA,
Plaintiff and Respondent,

ALLYN WESLEY BAIN,
Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District,
Honorable Edward Dussault, Judge presiding.
Counsel of Record:
For Appellant:
Smith, Connor, VanValkenburg & Larrivee, Missoula,
Montana
Fred VanValkenburg argued, Misoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
/&$f s l a , L.
e n e Deschamps, 111, County Attorney, Missoula,
Montana
Ed McLean argued, Deputy County Attorney, Missoula,
Montana
Keith Plaristuen, Legal Intern, County Attorney's
Office, Missoula, Montana

Submitted: December 9, 1977
Decided: MAR - 1 1978
Filed:
MAR - 1 19te
Hon. R. D. McPhillips, D i s t r i c t Judge, d e l i v e r e d t h e Opinion
of t h e Court:

T h i s i s an appeal by defendant Allyn Wesley Bain from a

conviction by a j u r y i n t h e D i s t r i c t Court, Missoula County.

I n t h e e a r l y evening of May 10, 1976, defendant walked from

downtown Missoula, Montana t o t h e 2000 block of South Avenue t o

v i s i t family f r i e n d s . When he l e f t h i s f r i e n d s ' house about 1 1 : O O

p.m. i t was windy and r a i n i n g l i g h t l y .

Defendant d i d n o t l i v e i n Missoula, b u t was s t a y i n g i n

Missoula with a cousin, Karen Skroch, who l i v e d i n t h e Holly-

wood T r a i l e r Court, 1700 Cooley S t r e e t . This was a c r o s s town

from where d e f e n d a n t ' s f r i e n d s l i v e d . A s defendant walked back

t o t h e t r a i l e r c o u r t , t h e weather became worse. Defendant

s t a r t e d looking i n parked c a r s a s he was p a s s i n g t o s e e i f one

was unlocked and had keys i n i t . He n o t i c e d keys i n a c a r

parked on t h e 1400 block of South 5 t h West. He took t h e c a r ,

which belonged t o Ray O t t o , and drove t o h i s c o u s i n ' s t r a i l e r .

Defendant parked t h e c a r o u t s i d e t h e t r a i l e r , went i n s i d e , and

soon went t o bed.

The n e x t morning defendant awoke around 10:OO o r 1 1 : O O a.m.

and upon remembering t h e s t o l e n c a r was o u t s i d e , he decided t o

drive the c a r t o downtown Missoula and leave i t parked somewhere.

On h i s way downtown, defendant was s p o t t e d by Lieutenant

Richard Thurman, who recognized t h e c a r a s a s t o l e n c a r from a

l i s t of s t o l e n c a r s he c a r r i e d i n h i s v e h i c l e . Defendant saw t h e

p o l i c e c a r and attempted t o escape. Lieutenant Thurman i n i t i a l l y

l o s t s i g h t of t h e c a r , but radioed f o r h e l p i n searching t h e a r e a

for it. He soon s p o t t e d t h e c a r a g a i n and proceeded t o pursue i t
w i t h l i g h t s f l a s h i n g and s i r e n b l a r i n g . Defendant d i d n o t s t o p ,

b u t attempted t o escape by t r a v e l i n g through t h e Missoula s t r e e t s

a t speeds between 25 t o 50 miles per hour. The p o l i c e chased de-

fendant f o r approximately 15 blocks b e f o r e defendant was stopped

by a p o l i c e c a r ramming i n t o t h e c a r defendant was d r i v i n g . There

were no i n j u r i e s and defendant, o f f e r i n g no r e s i s t a n c e , was taken

i n t o custody.

The only damage t o t h e c a r r e s u l t e d from t h e p o l i c e ramming

i t , i n t h e i r attempt t o s t o p i t . Defendant d i d n o t t a k e anything

from t h e c a r , d i d n o t change t h e v e h i c l e i d e n t i f i c a t i o n number,

d i d n o t r e p a i n t i t , nor change t h e l i c e n s e p l a t e s .
. Defendant was charged w i t h t h e f t , a f e l o n y , i n v i o l a t i o n

of s e c t i o n 94-6-302, R.C.M. 1947. T r i a l commenced October 4 ,

1976 and concluded October 5 , 1976. During t h e course of t r i a l ,

defendant moved f o r a m i s t r i a l on t h e grounds of a l l e g e d prosecu-

t i o n misconduct. The motion was denied. The j u r y convicted

defendant of t h e o f f e n s e of t h e f t and he was sentenced t o 10

y e a r s i n t h e Montana s t a t e p r i s o n .

Two i s s u e s a r e presented on appeal:

1) Was t h e conduct'of t h e prosecuting a t t o r n e y during

t r i a l p r e j u d i c i a l t o defendant thereby denying him a f a i r t r i a l ?

2) Was t h e r e s u b s t a n t i a l evidence t o support d e f e n d a n t ' s

c o n v i c t i o n of t h e o f f e n s e of t h e f t ?

O d i r e c t examination defendant t e s t i f i e d he d i d n o t s t o p
n

when he f i r s t saw t h e p o l i c e because he knew he was d r i v i n g a

c a r t h a t d i d n o t belong t o him, and because he d i d n o t have a

valid driver's license.

Before t h e prosecution cross-examined defendant, counsel

f o r both p a r t i e s had a h e a r i n g b e f o r e t h e t r i a l judge and out of

t h e presence of the j u r y . The prosecution b e l i e v e d defendant
"committed a fraud" upon the jury by testifying that he did not

stop when he first saw the police only because he was driving
a car that belonged to someone else and because he did not have

a valid driver's license. It therefore wanted to go into

defendant's parole status, contending the defendant's primary

motive was that if caught driving a stolen vehicle, he would be

returned to the Montana state prison. The prosecution cited no
authority for its contention and the court refused to allow the

prosecution to go into defendant's background.
On cross-examination immediately following the hearing in
the trial judge's chamber, this colloquy occurred:
"BY MR. McLEAN: [Deputy County Attorney]
Q . Mr. Bain, have you ever been convicted of a
felony? A. Yes, I have.

Q . Did that have anything to do with why you avoided
Lieutenant Thurman?
"m. VanVALKENBURG: [defendant's attorney]. Objection,
Your Honor. I'm asking the Court to declare a mistrial
at this point. He' s trying to do something here that
he can't do.

"THE COURT : Sustained.

"MR. VanVALKENBURG: Will the Court grant a mistrial?

"THE COURT: No, not mistrial; I'm just saying --
"MR. VanVALKENBURG: Then I'd ask the Court to instruct
Mr. McLean to stick with what his questions are supposed
to be.
"rHE COURT: Very well, you're so instructed, Mr. Mc1,ean.
IJQ. (By Mr. McLean) Why did you avoid Lieutenant
Thurman? A. I told you.
"Q. Tell me again, please. A . Okay, because I didn't
have a driver's license. I was driving a stolen vehicle.

"Q. Mr. Bain, did you have any other motive other than
being in a stolen vehicle and being without a driver's
license for avoiding Lieutenant Thurman when he put on
his siren? A. No.
 "Q. No. Now, t h a t i s your d i r e c t and unequivocal
answer t o t h a t q u e s t i o n ? A. Didn't have any o t h e r
motive except I d i d n ' t have a d r i v e r ' s l i c e n s e and
I was d r i v i n g a s t o l e n v e h i c l e .

"Q. I n regard t o t h a t , do you need t o a c q u i r e per-
mission from anyone t o come i n t o Missoula?

"MR. VanVALKENBURG: Your Honor, I ' m going t o o b j e c t .
I t h i n k you a l r e a d y know t h e grounds.

"THE COURT : Sustained .
"MR. VanVALKENBURG: I ' m going t o a s k t h a t M r . McLean
be admonished t o r e f r a i n from q u e s t i o n i n g i n t h i s a r e a ,
and t h a t he r e c e i v e some i n s t r u c t i o n from t h e Court.

"THE COURT: The o b j e c t i o n i s w e l l taken, and t h e j u r y
w i l l d i s r e g a r d t h e q u e s t i o n j u s t asked by M r . McLean.

"Q. [BYM r . ~ c ~ e a nCan I ask you: I f y o u ' r e such a
]
law a b i d i n g c i t i z e n , why you --
God damn, d i d n ' t you
s t o p when you saw t h e s i r e n s o r l i g h t s behind you?

"MR. VanVALKENBURG: A l l r i g h t , asked and answered.

"THE COURT : Overruled.

"MR. ML A :
cE N Pardon, Judge.

"THE COURT: Overruled.

"A. I t o l d you t h a t because I was i n a s t o l e n v e h i c l e
and I d i d n ' t have no d r i v e r ' s l i c e n s e . "

I n r e b u t t a l , t h e prosecution wanted t o put on t h e s t a n d

a witness from t h e Adult Probation O f f i c e ' t o e s t a b l i s h t h e f a c t

defendant was on p a r o l e and had no a u t h o r i t y t o be i n Missoula.

The Court would n o t allow t h e witness t o t a k e t h e s t a n d .

Under t h e United S t a t e s C o n s t i t u t i o n and t h e 1972 Montana

C o n s t i t u t i o n , a c r i m i n a l defendant has a r i g h t t o a f a i r t r i a l .

United S t a t e s C o n s t i t u t i o n , Amendment -5 ; 1972 Montana Constitu-

t i o n , A r t i c l e 11, S e c t i o n 24.
 Misconduct by t h e prosecutor qay form t h e b a s i s of a new

t r i a l where t h e p r o s e c u t o r ' s a c t i o n s have deprived t h e defendant

of a f a i r and i m p a r t i a l t r i a l . S t a t e v. Toner, (1953), 127
/ ,.

Mont. 283,-* P.2d 971.

This Court has recognized t h a t evidence of t h e same kind

a s t h a t previously r u l e d incompetent should n o t be repeatedly

o f f e r e d w i t h i n t h e hearing of t h e j u r y , and i f so o f f e r e d , even

though r e j e c t e d , may be grounds f o r r e v e r s a l . S t a t e v. S e a r l e ,

(1952), 125 Mont. 467, 239 P.2d 995. I n S t a t e v. Toner, supra,

t h i s Court held t h a t a defendant has n o t had a f a i r and i m p a r t i a l

t r i a l where t h e prosecutor c o n t i n u a l l y asks t h e defendant o r h i s

witnesses p r e j u d i c i a l and incompetent q u e s t i o n s .

The s t a t e apparently f e l t the questions asked were v a l i d

questions and t h a t t h e Court was i n e r r o r f o r n o t allowing t h e

s t a t e t o q u e s t i o n defendant about h i s parole s t a t u s . The s t a t e

f e l t t h i s evidence was r e l e v a n t t o defendant's i n t e n t t o deprive

t h e owner of h i s c a r .

Evidence was already introduced t o show t h a t when defendant

saw t h e p o l i c e , he d i d n o t r e t u r n o r park t h e c a r b u t f l e d .

Defendant admitted he knew he would be i n t r o u b l e f o r d r i v i n g a

s t o l e n v e h i c l e and not having a v a l i d d r i v e r ' s l i c e n s e . Any

p o s s i b l e evidence regarding defendant's p a r o l e s t a t u s could

n o t add t o defendant's already demonstrated i n t e n t t o evade t h e

police.

Not a l l evidence i s admissible merely because i t may be

relevant. The c o u r t must weigh t h e probative value of t h e

evidence a g a i n s t i t s p o t e n t i a l l y p r e j u d i c i a l e f f e c t on t h e

defendant's r i g h t t o a f a i r t r i a l . The t r i a l judge should and

does have l a t i t u d e of d i s c r e t i o n on t h e a d m i s s i b l i t y of such
evidence. S t a t e v. R o l l i n s , (1967), 149 Mont. 481, 428 P.2d

462. See: ~ o n t a n a ' snew Rules of Evidence, Rule 403, e f f e c t i v e

J u l y 1, 1977. Here,there was already evidence i n t h e record

t o show defendant's admitted and very apparent i n t e n t t o avoid

capture. The a d d i t i o n a l evidence regarding defendant's p a r o l e

o r probation s t a t u s would only prejudice t h e defendant. The

c o u r t d i d n o t abuse i t s d i s c r e t i o n i n r u l i n g t h e evidence was

inadmissible .
I t i s n o t t h e duty of t h e prosecuting a t t o r n e y t o make

independent determinations concerning t h e a d m i s s i b i l i t y of

evidence once t h e c o u r t r u l e s such evidence i s inadmissible.

W i l l f u l attempts by counsel t o place excluded evidence before

t h e j u r y may r e s u l t n o t only i n a m i s t r i a l , b u t r e v e r s a l .

A s a g e n e r a l r u l e , evidence of a s e p a r a t e o r c o l l a t e r a l

crime i s not admissible. But an exception may occur when one

c r i m i n a l a c t i s so c l o s e l y r e l a t e d t o t h e one upon which t h e

charge i s based a s t o form p a r t of t h e " r e s gestae". State

v. Hensley, (1976), Mont . , 554 P.2d 745, 33 St.Rep.

874. However, t h e r e i s no a p p l i c a t i o n of t h a t r u l e involved

i n t h e f a c t u a l s i t u a t i o n here.

W next consider whether t h e repeated attempts t o p l a c e
e

t h e excluded evidence before t h e j u r y was p r e j u d i c i a l t o

defendant. Under t h e e x i s t i n g r u l e s of evidence a t t h e time

of t h e t r i a l , defendant was properly asked t h e q u e s t i o n i f he

had ever been convicted of a felony. The defendant responded,

yes. This evidence was admissible f o r purposes of impeachment,

s e c t i o n 93-1901-11, R.C.M. 1947. Despite t h e c o u r t ' s r u l i n g ,

t h e prosecution then attempted t o ask defendant s e v e r a l ques-

t i o n s from which it could be i n f e r r e d t h a t defendant was on
probation o r parole. I n determining whether such questions a r e

so p r e j u d i c i a l t o t h e defendant a s t o r e q u i r e r e v e r s a l , t h i s

Court must look (1) t o t h e reasonable i n f e r e n c e t o be drawn

from t h e q u e s t i o n s , S t a t e v. Toner, supra, and (2) whether

such repeated attempts t o o f f e r excluded evidence might have

c o n t r i b u t e d t o t h e conviction. S t a t e v. Langan, (1968), 151

Mont, 558, 445 P.2d 565.

The only reasonable inference t h a t could be taken was t h a t

defendant n o t only was a convicted f e l o n , b u t was on parole

o r probation, thereby p u t t i n g i n t o i s s u e f u r t h e r evidence of

bad c h a r a c t e r . The i s s u e of defendant's c h a r a c t e r was never

opened by t h e defense. Given t h e f a c t t h e jury d e l i b e r a t e d

some 6 hours before rendering a v e r d i c t of " g u i l t y " , and t h e

f a c t t h a t t h e unauthorized use of a motor v e h i c l e i s a l e s s e r

included o f f e n s e w i t h i n t h e crime of t h e f t , S t a t e v. S h u l t s ,

169 Mont. 3 3 , 544 P.2d 817, c e r t a i n l y rendered a very r e a l

p o s s i b i l i t y of p r e j u d i c e t o defendant i n t h e f a c t u a l s i t u a t i o n

of t h i s case. W hold t h e repeated attempts t o put t h e excluded
e

evidence before t h e jury t o be r e v e r s i b l e e r r o r .

W have reversed t h e case on t h e f i r s t i s s u e , t h e r e f o r e
e

i t i s n o t necessary t o d i s c u s s t h e second i s s u e .

The judgment of t h e t r i a l court i s reversed and a new

t r i a l i s ordered.

I I

Hon, R.D. McPhillips, D i s t r i c t
Judge, s i t t i n g f o r M r . J u s t i c e
Frank I . Haswell.
We Concur:

Justices.