No. 81-398
I N THE SUPREME; COURT O THE STATE O MONTANA
F F
1982
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
T O A D.
H M S HOLZWORTH,
D e f e n d a n t and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e Seventh J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f Dawson, The H o n o r a b l e
L. C. G u l b r a n d s o n , J u d g e p r e s i d i n g .
Counsel of Record:
For Appellant:
J e r r y D. Cook, Gleizdive, Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
R i c h a r d A. S i m o n t o n , County A t t o r n e y , G l e n d i v e ,
Montana
Submitted on B r i e f s : May 20, 1982
Decided: October 6 , 1982
Filed:
8CT 6 - 1982
blr. Chief Justice Frank I. daswell delivered the Opinion of
the Court.
This case presents the question of whether the Statzfs
reference to defendant's juvenile offenses during the cross-
examination of defendant's character witness constitutes
reversible error. The District Court admonished the jury to
disregard these references except those of which the witness
had personal knowledge and, after a jury conviction, desig-
nated defendant a dangerous offender and sentenced him to
thirty years at the Montana State Prison. We reverse and
remand for a new trial.
The character witness called by the defense testified
that he had known defendant since he was a little boy, that
he had lived all of his life in the area where the incident
occurred and that defendant had worked for him for a month
in 1978. On cross-examination, the prosecuting attorney
questioned the witness as follows:
"Q. Were you aware that when he was 15
years old he was charged with attempted
rape?
"MR. COOK: Objection, Your Honor.
"0. And served six months probation?
"'JHE COURT: There is an objection, Mr.
Simonton."
'The defense attorney then moved for a mistrial, which
was denied. A conference was held in court chambers, in
which the defense attorney objected to any cross-examination
involving juvenile recorus. The Eistrict Court decided to
sustain t h e objections to the questions involving juvenile
records and gave the following admonition to the jury:
"THE COURT: For the record, the last
objection is sustained. The jury will
disregard any remarks regarding juvenile
offenses committed by the defendant, ex-
c e p t i n s o r a r a s t h e w l t n e s s may k n o w of:
h i s own k n o w l e d g e o f a n y a c t i v i t y . TO
t h a t e x t e n t you may a s k . But, regarding
j u v e n i l e a c t i v i t y t h a t h e would n o t b e
aware o f , under t h e s t a t u t e s h o u l d n o t be
referred to."
I t is c l e a r t h i s case does not f a l l within t h e scope
of D a v i s v. A l a s k a ( 1 9 7 4 ) , 415 U . S . 308, 94 S . C t . 1 1 0 5 , 39
L.Ed.2d 347, where t h e C o u r t h e l d t h a t , i n a criminal case,
t h e d e f e n d a n t i s d e n i e d h i s r i g h t o f c o n f r o n t a t i o n when h e
is p r o h i b i t e d from cross-examining a prosecutor's witness
regarding the witness's juvenile probation. See a l s o , S t a t e
v. Daniel (La. 1 9 7 9 ) , 376 So.2d 1361. Here, however, the
State sought to cross-examine a defense witness and this
f a c t d i s t i n g u i s h e s Davis from t h e c a s e a t b a r . S t a t e v.
I n t h o s e j u r i s d i c t i o n s having j u v e n i l e c o u r t s t a t u t e s
excluding evidence similar t o s e c t i o n 41-5-106, MCA, some
have allowed introduction of the evidence of the youth
proceedings i n c e r t a i n circumstances. These j u r i s d i c t i o n s
include: Alabama (Ala. Code S; 12-15-72 ( 1 9 7 5 ) ) ; Arkansas
(Ark. Stat. Ann. 45-444 (1977)); Illinois (Ill. Ann.
Stat., Ch. 37, 702-9 (Smith-Hurd 1972)); Mississippi
(Miss. Code Ann. S 43-23-17 ( 1 9 7 2 ) ) ; Ohio ( O h i o Rev. Code
Ann. g 2151.358 ( P a g e 1 9 8 1 ) ) ; and T e n n e s s e e ( T e n n . Code Ann.
5 37-233 (1977)). O t h e r s , however, e x c l u d e any i n t r o d u c t i o n
of t h i s e v i d e n c e and t n e s e i n c l u d e : Colorado (Colo. Rev.
Stat. 19-1-109 ( 1 9 7 8 ) ) ; M i s s o u r i (Mo. Rev. S t a t . S 2 1 1 . 2 7 1
( 1 9 7 8 ) ) ; Rhode Island (R.I. Gen. Laws, 14-1-40 (1969));
and West V i r g i n i a (W.Va. Code S 49-7-3 (1980)).
W think
e the better reasoned cases e x c l u d e t h e e v i -
d e n c e f o r a l l p u r p o s e s a n d we s o h o l d h e r e . Cf., C o t t o n v.
,
!
f'
U n l t e d S t a t e s ( 1 0 t h C i r . 1 9 6 6 ) , 355 F.2d,680, and A n n o t . , 63
The pertinent part of Montana's applicable statute
(section 41-5-106, MCA) reads as follows:
"Neither the disposition of a youth under
this chapter nor evidence given in youth
court proceedings under this chapter
shall be admissible in evidence except as
otherwise provided in this chapter."
Eisewhere in the chapter, section 41-5-603, MCA, allows
inspection or youth court records to certain people, none of
which is applicable to the issue here.
Section 41-5-106, MCA, states that neither the dis-
position nor evidence of youth court proceedings is admissi-
ble in evidence. Obviously, testimony of juvenile proceed-
ings on cross-examination is "evidence" and the plain
language of the statute states that such is not admissible.
There is no exception carved out for cross-examination of
defendant's character witnesses.
In the instant case the defendant was prejudiced by
the prosecutor's asking of the questions set out above. The
prosecutor ignored the defense attorney's objection and
attempted to bring more inflammatory evidence before the
jury witnout giving the Uistrict Court the opportunity to
rule on the objection. Such conduct is not commendable and
contravenes the policy underlying the Youth Court Act that
all evidence of this nature be excluded.
in State v. Shannon (1933), 95 Mont. 280, 26 P.2d 360,
the prosecutor improperly asked several questions about the
defendant's alleged prior offenses and, even though the de-
fendant denied the allegations, this Court found the asking
of the questions constituted prejudicial error. Accordingly,
defendant's conviction was reversed and the case remanded
for a new trial. Similar reasoning obtains here regaraing
this prosecutor's q u e s t i o n s a b o u t defendant's juvenile
offenses. This act constituted prejudicial error, and the
judgment of the District Court is vacated and the cause
remanded for a new trial.
Chief ~ u s t i 6 e
-
We concur:
L'
Justices
Mr. J u s t i c e Gene B . Daly d i s s e n t i n g .
I respectfully dissent. While agreeing with the majority
that generally juvenile records cannot be used as evidence
against an accused, I do not believe that the prosecutor's
questioning in this case constituted reversible error.
Given the proper circumstances alleviating the prejudicial
e f f e c t of t h e e v i d e n c e , j u v e n i l e r e c o r d s may be used t o impeach
"good c h a r a c t e r " t e s t i m o n y by a c r i m i n a l d e f e n d a n t . S e e , Annot.
6 3 A.L.R.3d 1112 S 4 ( b ) . The r a t i o n a l e f o r t h i s p r o p o s i t i o n is
t h a t t h e s e a r c h f o r t r u t h a t a t r i a l is i n h i b i t e d i f a d e f e n d a n t
o r a d e f e n s e c h a r a c t e r w i t n e s s is allowed t o g i v e t h e e r r o n e o u s
i m p r e s s i o n t h a t t h e d e f e n d a n t is l i l y - w h i t e . See United S t a t e s
v. Canniff (2nd C i r . 1 9 7 5 ) , 5 2 1 F.2d 5 6 5 ; and S t a t e v. Stepheny
(197811 - - - -- Tenn .Crim.App. - - - - , 570 S.W.2d 356.
T h i s case i n v o l v e s t h e b a l a n c i n g o f t h e s e a r c h f o r t r u t h w i t h
t h e p o l i c y of p r o t e c t i n g j u v e n i l e r e c o r d s . Here, b e c a u s e of the
safeguards surrounding the prosecutor's questions, I would not
s a y r e v e r s i b l e error o c c u r r e d . The o b j e c t i o n t o t h e p r o s e c u t o r ' s
q u e s t i o n s w a s s u s t a i n e d and a n a d m o n i t i o n was g i v e n . The j u r y
was a l s o i n s t r u c t e d t o d i s r e g a r d a n y r e m a r k s made by c o u n s e l n o t
s u p p o r t e d by t h e e v i d e n c e . These p r o c e d u r e s l i m i t e d t h e p r e j udi-
c i a 1 e f f e c t of t h e q u e s t i o n i n g .
I would a f f i r m t h e D i s t r i c t C o u r t ' s j u d g m e n t .