No. 82-151
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1983
THE STATE O MONTANA,
F
P l a i n t i f f and R e s p o n d e n t ,
SHANE STEVEN WHITE,
D e f e n d a n t and A p p e l l a n t .
Appeal from: District Court of t h e F i r s t 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 L e w i s and C l a r k
H o n o r a b l e Gordon B e n n e t t , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For A p p e l l a n t :
N i c h o l a s C. J a c q u e s a r g u e d , H e l e n a , Montana
F o r Respondent:
H o n o r a b l e 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
S h e x i -Swrigg--argud-,---Assi-s.tan~--A~~rney- l , H e l e n a ,-Genera
F e.m
4r i-
C h a r l e s G r a v e l e y , County A t t o r n e y , H e l e n a , Montana
Kevin Meek a r g u e d , Deputy County A t t o r n e y , H e l e n a ,
Montana
Submitted: September 2 0 , 1982
Decided: F e b r u a r y 1 8 , 1983
Filed :
FEB i ::93
Mr. Justice John C. Sheehv delivered the Opinion of the Court.
Defendant appeals from his conviction of felony aggravated
assault in the District Court, First Judicial District, Lewis
and Clark County. The District Court imposed a sentence of 10
years with 7 years suspended and recommended that the Department
of Institutions place the defendant in Swan River Youth Camp.
The case arose out of an altercation at a bar near Helena.
The defendant (White) had been accompanied to the bar by his
companions, Dan Phillips and Joe Harris. At the bar were Allen
Pippin, the victim of the alleged aggravated assault, Keith
Capps and Kent Liles. Pippin and Liles were playing pool with
Phillips and Harris, the losers to buy beers. At the conclusion
of their final game, won by Phillips and Harris, Pippin and
Capps refused to pay off the bet. An argument ensued, Pippin
and his companions left the bar and White's companions followed
them out to the parking lot. White, observing them go out to
the parking lot, picked up a pool cue stick, and followed them
out.
The evidence is contradictory as to what followed. During
the verbal argument which erupted in the parking lot, White
walked 10 feet to Pippin so that the two were face to face.
White testified as did Phillips, that Pippin "took a swing" at
White, but missed. Three witnesses for the State denied that
Pippin swung at the defendant. White struck Allen Pippin on the
side of the head with the butt end of the pool cue. Pippin was
knocked to the ground and eventually required hospitalization.
While Pippin was being helped to his feet, White and his
companions went to the bar, obtained their wraps and a beer, and
left.
The State's case against White was based on alternative
theories. First, the State argued that based upon their
witnesses' testimony, White got into an argument with Pippin,
and struck him with a pool cue, White being the aggressor. Its
second. theory was that even if Pippin did swing at the
defendant, White acted unreasonably in the amount and extent of
force that he used to repel Pippin's attack and therefore he was
not entitled to a defense of self-defense.
White timely appealed his conviction. He raises two
principal issues:
1. The District Court erred in permitting cross-
examination of Phillips, a defense witness, about specific acts
of misconduct allegedly committed by Phillips not related to the
case at trial.
2. The District Court erred in giving its instruction no.
10 in words as follows:
"You are instructed that if you find that the
defendant was assaulted with fists, then you
are instructed as follows:
"An assault with the fists does not justify
the person being assaulted in using a weapon
in self-defense unless that person believes
and a reasonable person in the same or similar
circumstances would believe that the assault
would likely inflict death or serious bodily
harm to himself or to prevent the commission
of a forcible felony."
IMPROPER CROSS-EXAMINATION OF A WITNESS FOR DEFENDANT
White, in his case-in-chief, called as a defense witness,
Dan Phillips, one of his companions at the event in question.
Phillips testified, as did White, that Pippin struck at White
with an overhand fist which missed White and that White then
lifted the cue stick a.nd hit Pippin on the side of the head.
On cross-examination by the deputy county attorney, the
following colloquy between witness, the court and counsel
occurred:
"Q. You go to Cutone's quite frequently;
isn't that true? A. I used to quite
frequently, yes.
"Q. And isn't it true--Do you know Tom
Cutone, the owner? A. I sure do.
"Q. And isn't it true that he told you he
didn't want you at his bar?
"MR. JACQUES: Your Honor, I'm going to object
to this. If there's going to be argument, I'd
like to argue it outside the presence of the
jury. It's improper impeachment.
"THE COURT: I think that's right. What's the
point of that question? I think I'll sustain
the objection.
"THE WITNESS: I am allowed in Cutone's now
and. have been.
"BY MR. MEEK:
IQ
'. What kind of drink did you buy the
defendant and his girlfriend for a birthday
drink? A. I believe a can of Rainier for
Shane, and I think a glass of wine for Cindy,
but I'm not sure.
"Q. Were you drinking beer out of a can? A.
Yes, I was.
"Q. And what was Joe Harris drinking beer out
of? A. Can of Rainier.
"THE COURT: I'll reverse that decision. You
may inquire as to whether Mr. Cutone asked him
to stay out of the bar.
"BY MR. MEEK:
"Q. Isn't it true, Mr. Phillips, that the
owner of Cutone's instructed you that you were
never to attend his bar prior to this
incident? Isn't that true? A. A long time
ago he 'eighty-sixed' me from the bar.
Q. And what does 'eighty-sixed' mean? A. Do
not come back, but then I have talked to him,
and he said, 'Maybe it ' s not your fault, ' and
I was allowed in there, and I still am.
"Q. Maybe what wasn't your fault? A. My
girlfriend's brother beat me up in Cutone's,
broke five of my ribs, blacked both of my
eyes, broke my nose, and since my girlfriend's
sister was working there, he thought it
probably was a good idea that I didn't show
UP
"Q. Isn't it true that the reason that you
were banned from Cutone's is because you
constantly caused trouble there? A. No I
that's not true."
At the time set for the beginning of trial, court, counsel
and the defendant met, and the District Court made a ruling on
defendant's motion - limine that "any bad acts or specific
in
instances of conduct of the defendant or other witnesses not
arising with the facts giving rise to the instant charge" be not
questioned or referred to. The court granted the motion in
limine at the outset of trial.
Notwithstanding the court's order - limine, the deputy
in
county attorney asked the questions relating to specific
instances of misconduct of the witness Phillips as we have set
forth above. The deputy county attorney admitted during oral
argument tha.t he purposely asked the questions so as to later
impeach the witness on his instances of misconduct through the
owner of the bar. The State thereafter, in its rebuttal case,
called the owner of the bar as a witness, who testified that
Phillips had indeed been banned from the bar for "incidents
which had occurred three weeks to a month before" the event
which was the subject of the case at bar.
The District Court erred in permitting the interrogation of
a witness, not a party to the suit, as to past instances of
misconduct for the purpose of impeaching the witness. This
issue is controlled by Rule 608, M.R.Evid., relating to evidence
of the character and conduct of a witness. That section
provides in pertinent part:
"(b) Specific instances of conduct. Specific
instances of the conduct of a witness, for the
purposes of attacking or supporting his
credibility, may not be proved by extrinsic
evidence. They may, however, in the
discretion of the court, if probative of
truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1)
concerning his character for truthfulness or
untruthfulness, or (2) concerning the
character for truthfulness or untruthfulness
of another witness as to which character the
witness is being cross-examined has
testified.. . ."
The testimony elicited by the State in this case against the
witness Phillips, that he had been. guilty of misconduct at bars,
d-oes not fit within the exception of Rule 608(b), quoted above
that specific instances of conduct may be inquired into if
probative of truthfulness or untruthfulness. As Professor Moore
states with respect to the similar rule in the Federal Rules of
Evidence:
"The exception is narrowly drawn in
recognition of the opportunities for abuse
when evidence of specific instances of
conduct is offered. Thus the rule admits
such evidence only on cross-examination and
only if probative as to a witness's
truthfulness or untruthfulness ... " 10
Moore's Federal Practice 9608.21, at VI-89
(Oct. 1976).
The testimony as to Phillips1 previous misconduct was
wholly unrelated to the ability of Phillips to observe, recall
or testify as to any relevant occurrences in the altercation
between White and Pippin. It served only to create unfair
prejudice against White, and confusion of the issues for the
jury, and as such should have been barred under Rule 403,
"Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of unfair
prejudice, confusion of the issues, or
misleading the jury,. .. waste of time
. . .I1
The result here as to this issue would be the sa.me even before
the adoption of the Montana Rules of Evidence. Former section
93-1901 (11), R.C.M. 1947, used substantially the same language.
Specific wrongful acts used in cross-examination of witnesses to
degrade their characters were condemned in State v. Rogers
(1904), 31 Mont. 1, 6, 77 P. 293; State v. C ~ O W(1909), 39
~
Mont. 174, 177, 102 P. 579; State v. ~anakarias (19171, 54 Mont.
180, 184, 169 P. 42; State v. Shannon (1933), 95 Mont. 280, 288,
26 P.2d 360. In State v. Rivers (1958), 133 Mont. 129, 320
P.2d 1004, this Court said:
"States differ on the rule of proper
impeachment. Montana's view is clear. Its
violation is an invasion of a substantial
right. Our applicable section is section
93-1901(11), R.C.M. 1947: 'A witness may be
impeached by the party against whom he was
called, by contradictory evidence or by
evidence that his general reputation for
truth, honesty or integrity, is bad, - -
but not
Q evidence of particular wrongful acts,
except that i t m a y be shown by examination
of the witness, or the record of the
judgment, that he has been convicted of a
felony. ' We cannot accept respondent's
explanation that this was to test the
credibility of the defendant on statements
made, and not for their truth or veracity,
or again that it was to show that defendant
knew from the death of the child in Idaho
that insufficient food would resul-t in the
child's death. And finally, respondent
State and the lower court's view that even
though this be error, it was waived by the
defendant in her redirect. It was error.
(citing cases)
"Great damage had been done; a substantial
right of the defendant had been invaded
. .. " (Emphasis added.) 133 Mont. at 134,
135, 320 P.2d at 1007.
WHETHER INSTRUCTION NO. TEN WAS PROPER
White's second issue relates to the giving of instruction
no. 10, which instructed the jury on the issue of self-defense
when a person is assaulted by another with fists.
The District Court had also instructed the jury in
statutory language with respect to justifia-bleuse of force by a
person in the face of a threat or assault. For the convenience
of the reader, we set forth here the portion of court's
instruction no. 9 which covered the statutory definition, and
instruction no. 10 which was objected to by defendant:
"Instruction no. 9:
"A person is justified in the use of force
or threat to use force against another when
and to the extent that he reasonably
believes that such conduct is necessary to
defend himself or another against such
other's imminent use of unlawful force.
However, he is justified in the use of force
likely to cause death or serious bodily harm
only if he reasonably believes that such
force is necessary to prevent imminent death
or serious bodily harm to himself or another
or to prevent the commission of a forcible
felony . . ."
"Instruction no. 10.
"You are instructed that if you find that
the defendant was assaulted with fists then
you are instructed as follows:
"An assault with the fists does not justify
the person being assaulted in using a weapon
in self-defense unless that person believes
and a reasonable person under the same or
similar circumstances would believe that the
assault is likely to inflict death or
serious bodily harm to himself or to prevent
the commission of a forcible felony. "
White's objections to court's instruction no. 10 were that
it laid too much emphasis on fists, that self-defense had been
adequately defined, and that it goes outside the statute on
self-defense (section 45-3-102, MCA) if it states "you can never
use a weapon to combat fists."
Court's instruction no. 9 sets forth in full the requisite
elements to establish self-defense in a sufficient manner to
guide the jury here. The giving of court's instruction no. 10
was repetitious, and may have placed undue emphasis on the
requirements for self-defense. Inasmuch as this cause is being
remanded for a new trial, we recommend that the repetitious
instruction not be given in any future trial.
Reversed and remanded.
We Concur:
Mr. Justice Daniel J. Shea, concurring:
I join in the opinion but I want to stress two factors.
It was highly prejudicial for the court to permit the
prosecutor to attempt to impeach witness Phillips by asking
him whether he and defendant had joined together in previous
fights. Whether intended or not, the undeniable effect of
the question and any answer elicited was to cause the jury to
disbelieve witness Phillips that Alan Pippin was the
aggressor. Because of this prejudicial line of questioning
the jury may well have believed that defendant was the
aggressor and it therefore may not have considered his claim
of self defense based on his contention that Allen Pippin was
the first aggressor.
Second, I stress that jury instruction no. 10 should nctt
be given in place of instruction no. 9 in the retrial of this
case. In holding the instructions to be merely repetitive,
the majority opinion may leave the impression that it may be
proper to use either instruction no. 9 or instruction no. 10,
but not both. While the instructions are repetitive,
instruction 10 unduly emphasizes the effect of using a weapon
in a case of self defense where the evidence is that the
other person used only his fists. Instruction no. 9 is the
proper instruction to be used in the retrial of this case.
1
J
+
&
d,
2 ustice
I join in the separate concurring opinion of Justice
Shea.
.
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