No. 81-368
I N THE SUPREME COURT O F THE STATE O M N A A
F O T N
1982
STATE O MONTMJA,
F
P l a i n t i f f and R e s p o n d e n t ,
VS .
JACK WHITE,
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 C o u r t o f t h e Second J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f S i l v e r Bow
H o n o r a b l e Mark S u l l i v a n , J u d g e p r e s i d i n g .
C o u n s e l of Record:
For Appellant:
K a r l a Gray a r g u e d , B u t t e , Montana
F o r 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 o b e r t McCarthy, County A t t o r n e y , B u t t e , Montana
P a t r i c k Flemming a r g u e d and C h r i s t o p h e r M i l l e r a r g u e d ,
County A t t o r n e y ' s O f f i c e , B u t t e , Montana
Submitted: May 11, 1982
Decided: ~ u g u s t26, 1982
Filed: AUG 2 7 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant Jack White was found guilty upon jury trial
in the Second Judicial District Court, Silver Row County,
of the offense of felony burglary. He appeals from the
judgment of guilty and from the 10 year sentence which was
imposed. We affirm.
At approximately 4:00 a.m. on January 23, 1981, White
was riding as a passenger in a car driven by Fritz Dahlman.
The car was stopped by a Butte-Silver Bow law enforcement
officer who observed the car driving along the street at
niyht without lights, its brakelights flashing on and off.
When he stopped the automobile, he discovered no license
plates, but a 1ice.nse sticker which had expired at mid.night
just preceding. On top of the automobile Dahlman was driving
was part of a roll-top desk stamped with the words "Schulte
Glass." The other portion of the desk was sticking out of
the rear compartment of the automobile. The investigating
officer, by radio communication with his central headquarters,
determined that Robert Schulte, the proprietor of Schulte
Glass Shop in Butte, owned a roll-top desk which fitted
the description of the roll-top desk in the automobile.
Schulte came to the scene and identified not only the roll-
top desk, but a vacuum cleaner and other items of evidence
which were taken into the possession of the police. Dahlman
and White were eventually charged with burglary. Both pleaded
not guilty. Dahlman subsequently changed his plea to guilty
and was granted a three year deferred sentence. He also
testified against White.
A plea bargain was offered to White which would in
exchange for his plea of guilty grant him a 10 year sentence
with 5 years suspended. White decided not to accept the
plea bargain, and his jury trial was set for June 16, 1981.
On June 16, White's attorney appeared before the District
Court and advised the court that White intended to rely on
an alibi defense, and moved for a continuance of the trial
date. The motion was granted and the trial was continued
until June 18. Before the District Court granted the continuance,
it required an affidavit from White that the first time he
told his counsel about his alibi defense was on the date of
the motion for continuance.
At the trial, Dahlman testified for the prosecution
stating that White had been with him when he brokG into the
Schulte Glass Shop and took the items involved. White
testified that he had been son-.ewhereelse at the time the
crime was co~mitted. White had two other witcesses testify
supporting his alibi. During cross-examination, White was
repeatedly asked why he had not raised his alibi defense earlier.
The jury found White guilty and the 10 year sentence
was imposed upon White.
Issues raised by White are: (1) the prosecutor's
inquiries into the appellant's post-arrest silence violated
White's Fourteenth Amendment right to due process; ( 2 )
although White's counsel did not object to this cross-
examination, this Court should consider the first issue
under the plain error rule; and (3) the District Court
imposed an increased sentence on White because he chose to
exercise his right to a jury trial.
White contends that in his testimony at the trial, he
did not testify on direct examination concerning any post-
arrest actions. On cross-examination, however, he was asked
by t h e p r o s e c u t o r whether he had e v e r t o l d h i s f i r s t a t t o r n e y
a n y t h i n g a b o u t h i s a l i b i d e f e n s e , whether he had t o l d t h e
o f f i c e r s t h a t a r r e s t e d him t h a t he had an a l i b i , when he had
t o l d h i s second a t t o r n e y a b o u t h i s a l i b i , whether he e v e r t o l d
anyone i n t h e county a t t o r n e y ' s o f f i c e a b o u t h i s a l i b i , o r
approached t h e judge o r any o t h e r p e r s o n r e s p e c t i n g h i s
alibi.
White c o n t e n d s t h a t t h i s t y p e of c r o s s - e x a m i n a t i o n was
r e p u d i a t e d by t h e United S t a t e s Supreme C o u r t i n Doyle v.
Ohio ( 1 9 7 6 ) , 4 2 6 U . S . 610, 9 6 Sect. 2240, 4 9 L.Ed.2d 91.
Doyle does i n d e e d h o l d t h a t it i s improper on c r o s s -
e x a m i n a t i o n t o i n q u i r e r e p e a t e d l y a s t o why d e f e n d a n t s d i d
n o t t e l l t h e n a r c o t i c s a g e n t who a r r e s t e d them a b o u t t h e
frameup s t o r y Later r e l i e d on by t h e d e f e n d a n t s a s an a l i b i
f o r t h e crime.
The S t a t e c o n t e n d s t h a t Doyle does n o t a p p l y in t h i s
c a s e , t h a t t h e d e f e n d a n t i n t h i s c a s e opened t h e door t o h i s
impeachment on c r o s s - e x a m i n a t i o n by t h e p r o s e c u t b r , and
t h i s C o u r t s h o u l d l o o k i n s t e a d t o S t a t e v. Wilson ( 1 9 3 1 ) ,
Mont. --.-- , 631 P.2d 1273, 38 St.Rep. 1 0 4 0 , 1044, a s c o n t r o l l i n g .
W e f i n d t h a t White d i d i n d e e d open t h e door t o t h e k i n d
of impeachment c r o s s - e x a m i n a t i o n t o which he was s u b j e c t e d
by t h e p r o s e c u t o r . I n h i s d i r e c t t e s t i m c n y , White s a i d :
"Q. What d i d t h e y s a y t.o you when t h e y took
you o u t a f t h e c a r ? A,. They n e v e r s a i d
anything.
"Q. Did t h e y cuff you? A. Yes.
"'Q. Did t h e y s e a r c h you? A. Yes, they did.
"Q. Did any o t h e r p o l i c e o f f i c e r s a r r i v e a f t e r
t h e f i r s t ? A. Y e s , t h e r e was one o t h e r p a t r o l
car t h a t w a s t h e r e .
"Q. Did you ever say anything to a police
officer? A. NO, I never.
"Q. Did you ever confess to this crime?
4. No, 1 never did.
'QQ. Have you confessed to this crime since
that date? A. No."
This Court said in Wilson, supra:
----
" bW1 hen a witcess voluntarily testifies, the
privilege against sel-f-incriminationis amply
respected without need of accepting testimony
freed from the antiseptic test of the adversary
process, The witness himself, certainly if he is
a party, determi~~es the area of discloeure and
therefore of inquiry. Such a witness has the
choice, after weighing the advantage of the
privilege against self-incrimination against the
advantage of putting forward his version of the
facts and his reliability as a witness, not to
testify at all. He cannot reasonably claim that
zhe Fifth Amendment gives hip. not only this
choice, but if he elects to testify, an immucity
from cross-examination on the matters he has
himself put in dispute. It would make of the
Fifth Amendment not only a humane safeguard
against judicially coerced self-disclosure but a
positive invitation to mutilate the truth a
party offers tc tell ... The interests of
the other party and regard for the function of
courts of justice to ascertain the truth become
relevant, and prevail in the balance of consid-
erations determining the scope and limits of the
privilege against self-incrimination. Petitioner,
as a party to the suit, was a voluntary witness,
She could not take the stand to testify in her
own behalf and also claim the right to be free
frcm cross-examination on matters raised Sy her
awn tcstimcrly on direct examination. (Citing
a case.)" 631 P.2d 1273,38 St.Rep. 1040, 1044,
1045.
We interpret Wilson to mean that a defendant who testifies
cannot cloak himself with seeming innocence because of his
silence following his arrest, and yet be imrr-une from impeachment
examination when, to attack his credibility, the sane kind
of silence can SF? shown to speak of his guilt and not his
seeming innocence. ---
Doyle is founded on the fact that the
defendants had received their Miranda warnings, that they
had a right to keep silent, and in Doyle, the defendants
were merely exercising their Miranda rights by being silent.
Here White made 2ositive assertions in ?is direct testimony
which put in issue his silence, not as an exercise of his
Miranda right to be silent, but as a way of showing that he
was innocent af the crime and that his al.ibi was true. In
that situation, the State cannot be shackled by the Fifth
Amendment from impeachment cross-examination. We f i ~ d
no
im~roprietyin the cross-examination of White under the
circumstances here.
In view of our determination sf the first issue, there
is no need to discuss the second, whether this Court could
consider the first issue where no objec'ci.or,
was mad.@ by
defense counsel at the time of the occurrences in the District
Court. Since we find no error on the first issue, it is
ucnecessary to determine whether the cross-examination
should have been objected to by defense counsel..
The third issue relates to the severity of the seritence
imposed on White. He contends that since Dahlman was offered
and he accepted a deferred sentence of 3 years for the same
crime of which White was convicted as an acco~~plice,
the
prosecution w a s unfair in not offering him the same kind of
lea bargain; that the District Court itself indicated that
White "took his chances" when he refused the plea bargain,
and that these circumstances raise a "reasonable inference"
that his L O year sentence resulted in part from his exercise
of the right to a jury trial.
The State answers this contention by pointing out that
hhite had a prior felony record, which the Court also con-
sidered in connection with his sentence. It further contends
that more than a "reasonable inference of im~roprietyis
required in the sentencing prozessing"; there nust be shown
to be an abuse of discretion by the judge in im~osingthe
s e n t e n c e which g i v e s r i s e t o 3 r i g h t t o r e l i e f on appeal.
I n S t a t e v. Davison ( 1 9 8 0 ) , -
- Mont . ,
- 6 1 4 P.2d
489, 3 7 St.Rep. 12-35, t h i s C o u r t a - d d r e s s e d t h e same q u e s t i o n .
T h e r e w e s t a t e d t h a t t o underm.ine the I.e(rj.ality of a s e n t e n c e
imposed on a defendalzt i n t h e D i s t r i c t C o u r t , a b u s e o f
discretion i n t h e s e n t e n c i n g p r o c e s s is n e c e s s a r y . Where
t h e c o u r t c o n s i d e r s t h e n a t u r e of t h e c r i m e committed 2nd
t h e : d e f e n d a n t ' s p a s t b e h a v i o r , among o t h e r f a c t o r s , t h e
e x t e n t o f punish.ment i s v e s t e d w i t l ~ i nthe sound d i s c r e t i o n
of t h e t r i a l c o u r t . D a v i s o-, s u p r a .
n A s we pointed out i n
2 a v i s c n and a s i t a p p i i e s h e r e , we a r e s p e a k i n g of the
L e g a l i t y o f t h e sentence E s x t h e p u r p a s e o f appellate r e v i e w ,
and 1-iot of any r i g h t t o rsl.ief t h a t White may have & f o r e
t h e S e n t e n c e Review D i v i s i o n o f t h i s C o u r t . When w e c o n s i d e r
a l l t h e factors of 'this case, including the strong ~ r o h a b i l i t y
t h a t t h e a s s e r t e d a l i b i d e f e n s e was f r i v o l o u s , w e f i n d no
a b u s e o f d i s c r e t i o n by t h e D i s t r i c t C o u r t i n imposing t h e 10
year s e n t e n c e on White. Acco~~dingLy,e affirm.
w
- -
Chief J n s t l c e