State v. Daniels

No. 82-438

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1984

STATE O MONTANA,
F

Plaintiff and R e s p o n d e n t ,

-vs-

N L N T.
OA DANIELS,

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 of t h e F i f t h 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 B e a v e r h e a d ,
The H o n o r a b l e F r a n k E. B l a i r , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

L e a p h a r t Law F i r m ; W. W i l l i a m L e a p h a r t a r g u e d ,
H e l e n a , Montana
S c h u l z , D a v i s & Warren; J o h n Warren a r g u e d ,
D i l l o n , 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
P a t r i c i a J. S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
W. G. G i l b e r t , 111, County A t t o r n e y , D i l l o n , Montana

Submitted: J a n u a r y 9 , 1984

Decided: May 1 5 , 1984

Clerk
 Mr. Justice John C. Sheehy delivered the Opinion of the
- Court.

We reverse for a new trial the judgment of conviction of
Nolan T. Daniels for mitigated deliberate homicide following
jury trial in Beaverhead County, Fifth Judicial District.
Nolan T. Daniels, a 43-year-old ranch hand, had lived in
the Beaverhead County area for about ten years, until 1981,
during which time he did ranch work and tended bar. Jimmy
John Nolan, the victim in this case, was also a ranch hand
and a resid-ent of the Beaverhead County area at the time of
the shooting. In previous years, Daniels and Jimmy John had
crossed paths, sometimes to express indifferent or hostile
feelings for one another. Their animosity was well known in
the community.
In April 1981, Daniels moved to Cutbank, Montana, to
work for William Rumney. There he injured his foot while
shoeing horses, and taking time off he headed for St. Mary's
to pick up a friend, Mike Smith. Daniels and Smith traveled
south to the Dillon area in Daniels' Lincoln Continental.
They spent June 5 and 6 , 1981, barhopping in Dillon.
Our statement of what occurred on June 7 is basically a
combination of what was described by Scott Tarver and Nolan
Daniels. On Sunday, June 7, Daniels spent the morning
looking for Mike Smith as they had become separated the
evening before. Daniels met Scott Tarver, an acquaintance,
in a downtown Dillon bar. The two decided to go to Dell for
a roping event. Tarver, who had been drinking since early
morning (his not unusual custom), bought a fifth of whiskey
for the trip.
 As they drove to Dell, Daniels and Tarver discussed
Daniels' involvement in a fight which took place
approximately six months earlier in Dell. According to
Daniels, Tarver then asked Daniels if he had any guns, making
some comment about his willingness to protect Daniels if the
need arose. Daniels gave Tarver a .38 pistol which remained
in the front seat of the car throughout the ensuing incident.
Once in Dell, the two stopped at the Airport Bar for a
drink. They had stopped at the Dell Hotel but were refused
admittance by the bartender, who obviously felt that because
Jimmy John was inside, Daniels' presence would cause a
disturbance. At the roping event, Daniels and Tarver met
another acquaintance who agreed to meet them at the Airport
Bar.
When Daniels and Tarver pulled into the parking lot of
the Dell Airport Bar, Jimmy John Nolan was standing by the
driver's side of his pickup truck. One witness testified
that Jimmy John hollered something at Daniels as he drove in.
Daniels testified that when he saw Jimmy John gesturing at
him, he stopped his car. Jimmy John's pickup faced the bar
and the Lincoln Continental was parked approximately 15 feet
from the truck, angled from the rear of the passenger side of
the truck. Tarver got out of the Lincoln, and walked to the
wheel-well area of the truck on the passenger side. Daniels
got out and approached Jimmy John. Daniels and Jimmy John
became involved in a physical confrontation or wrestling
match. At some point, Jimmy John reached for a pair of
horseshoe nippers from the bed of his truck and struck
Daniels on the head. The blow lacerated Daniels' scalp and
cracked his skull causing him to bend over and turn away from
Jimmy John. Daniels then walked back to his car, and after
getting his keys from the driver's side of his automobile,
went to his trunk, and removed a . 3 5 7 pistol. He walked back
toward Jimmy John, brought the gun up and started shooting.
He fired four shots as Jimmy John turned and fell dead.
After handing the gun to Tarver, Daniels walked into the bar
where, bleeding profusely, he waited for the ambulance and
law enforcement officers.
Daniels claims that as he approached Jimmy John, Jimmy
John grabbed him and tore a necklace which Daniels was
wearing from his neck and that he was immediately struck by
Jimmy John with the horseshoe nippers. Tarverls testimony
was that the two wrestled for a few moments until, when Jimmy
John got winded he pushed Daniels away, saying he had had
enough. Tarver said that Daniels came back with an open
pocket knife toward Jimmy John and that Jimmy John struck
Daniels over the head then with the horseshoe nippers. The
pocketknife was never found nor introduced into evidence.
We will bring out other facts where pertinent to the
issues.
I.
The issue on which we reverse for a new trial is Greyson
Phipps' testimony on rebuttal for the State. These
statements were made by Daniels to Tarver just before they
were getting out of the Lincoln automobile when they sighted
Jimmy John outside the bar.
This case came on for trial on July 13, 1982. The first
day was spent in picking the jury and in discussions between
counsel before the court in chambers. On the second day,
July 14, the State opened its case-in-chief. It called
Tarver as a witness. When he got to the point in his
testimony where he described leaving the automobile in which
he and Daniels came to the bar where they saw Jimmy John, he
testified:
"Q. Did you say anything to the Defendant when you
saw Jimmy John? A. Yeah.
"Q. What did you say? A. I said I'd buy him a
beer. I wanted to talk to him, I'd buy him a beer.
"Q. Now who did you say that to? A. Nolan.
[Daniels]
"Q. Did Nolan say anything to you? A. I don't
know. Probably did. I might have said something
to him back, but I don't really remember it,
because I was half in the car and half out.
"Q. How do you remember that this conversation
took place? A. What do you mean, how do I
remember it?
"Q. How do you remember if Nolan said something to
you and you said something to him. A. Cause I was
half in the car and half out. I turned around and
looked at Nolan and said something and he got out.
"Q. Now what did the defendant do when you got out
of the car. A. Who, Nolan?
"Q. Yes. A. Well he was sitting in the car when
I got out of the car."
When the examination and cross-examination of Tarver was
completed Deputy Greyson Phipps took the stand. In no part
of his examination was he asked whether Tarver had told him
anything that Daniels may have said to Tarver as they were
getting out of the car to meet Jimmy John.
Daniels' case-in-chief began the next day, July 15. The
defendant Nolan T. Daniels testified on his own behalf and
was cross-examined by the State. In no part of Daniels'
examination or cross-examination was he asked whether he had
made a statement to Tarver as they were getting out of the
car upon seeing Jimmy John. The defense then called Deputy
Greyson Phipps, who testified to an earlier threat that Jimmy
John had made against Daniels and he was cross-examined on
that subject. On the morning of July 16, the defense rested
and the State called Greyson Phipps as a rebuttal witness.
The following occurred:
"Q. Now when you arrived at the Airport Bar, you
saw Scott Tarver? A. Yes, sir.
"Q. And did you question him about what happened.
A. Yes, I was trying to find out what had taken
place.
"Q. Did he relate to you a conversation that he
and the Defend.ant, Nolan Daniels, had just as he
and Daniels were getting out of Daniels' car. A.
Yes.
"Mr. Leaphart: Objection, Your Honor. It's
calling for a hearsay.
"Mr. Gilbert 111: Your Honor, it's offered--Tamer
has testified that he remembers the conversation
and he remembers Daniels saying something to him,
he remembers getting out of the car with the door
open, half out and saying something back. He's
testified he told the Sheriff, but he said couldn't
remember what was said.
"Mr. Leapha-rt: Your Honor, Mr. Tarver is the
State's witness, and it can't be impeaching him,
nor can they corroborate him on the rebuttal. And
furthermore, Mr. Tarver's testimony, as I
understood it, was that he couldn't remember what
was said, if anything.
"Mr. Gilbert 111: That establishes the foundation,
Your Honor, we can impeach our own witness under
the new rules.
"THE COURT: Objection is overruled.
"Q. What did Tarver tell you the Defendant said as
he was about to get out of the car? A. Well, in
my officer's report there that I wrote shortly
afterwards, he stated that Mr. Daniels had said
that had a score to settle and Mr. Tarver stated
that he'd better be careful, the big Indian will
whip your ass. "
At the time that the rebuttal testimony was offered and
admitted, Tarver had already been excused from the trial,
defense counsel consenting to his excusal upon request of the
county attorney. There is no testimony in the record as to
what Tarver told the sheriff or that he could not remember
what was said to the sheriff.
 Daniels' defense during the trial was justification or
self-defense. His testimony about the incident had indicated
that he had gotten out of the automobile, went to Jimmy John,
who grappled with him, tore off his necklace, and then struck
him with the nippers. Daniels denied that he used any knife
in the incident. In connection with his defense of
self-defense, the issue of whether Daniels was an aggressor
was, of course, important.
When Tarver first testified on July 14, during the
trial, as part of the State's case-in-chief, he clearly made
no statements that Daniels had said anything to him as they
were getting out of the car to meet Jimmy John. Rather, he
testified that he, Tarver, told Daniels, that Tarver would
buy Jimmy John a beer. At that point of the trial, the State
could clearly impeach him, or lay a foundation for later
testimony by Greyson Phipps, by asking Tarver if he had not
made such a statement to the deputy sheriff. Rule 607,
M.R.Evid. This was not done. When Greyson Phipps came to
the stand, immediately following Tarver's testimony, the
State made no attempt then to elicit from Phipps what Tarver
had told him, although the statement made to Phipps by Tarver
would properly be a part of the State's case-in-chief. When
the defendant was presenting his case, neither the defendant
Daniels, nor the witness Phipps was asked anything about
Daniels having made a statement to Tarver which would tend to
characterize Daniels as an aggressor in the incident.
Rebuttal testimony is proper only if it tends to counteract
new matter offered by the adverse party. State v. Williams
(1979), 185 Mont. 140, 153, 604 P.2d 1224, 1231; Gustafson v.
Northern Pacific Railway Company (1960), 137 Mont. 154, 164,
351 P.2d 212, 217. Phipps' testimony was therefore improper
rebuttal testimony, but that was not the objection made to
the District Court. Undoubtedly the court could allow in its
discretion such rebuttal testimony. McGee v. Burlington
Northern, Inc. (1977), 174 Mont. 466, 571 ~ . 2 d784. The
objection made by the defendant to Phipps' rebuttal testimony
was that it was hearsay.
We must examine the testimony offered by Phipps to
determine its nature. Phipps, on the stand, is testifying to
what Tarver, following the shooting, told him that Daniels
said prior to the shooting, as they were getting out of the
car. This is hearsay within hearsay. Rule 805, M.R.Evid.,
provides that hearsay within hearsay is not excluded under
the hearsay rule - -
if each part of a combined statement
conforms with an exception to the hearsay rule as provided in
"these rules."
As a general rule, hearsay is not admissible:
"Rule 802. Hearsay rule. Hearsay is not
admissible except as otherwise provided by statute,
these rules, or other rules applicable in the
courts of this state."

Hearsay is defined under Rule 801(c), M.R.Evid. as:
". . . a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted."
A "declarant" is defined as the person who makes the
statement. Rule 801 (b), M.R.Evid. Thus, in the case before
us, as to the statement made to Phipps, Tarver is the
declarant, and as to the statement purported to have been
made to Tarver, Daniels is the declarant.
Irrespective of the broad definition of hearsay in Rule
801(c), M.R.Evid., above, a statement which otherwise fits
within this definition is not hearsay if it comes within one
of the exceptions.
The exception relied upon in this case by the State for
the admission of Phipps' testimony of Tarvers' statement is
Rule 801(d)(1), M.R.Evid. That exception provides that a
statement is not hearsay if "[tlhe declarant testifies at the
trial or hearing and is subject to cross-examination
concerning the statement, and the statement is (A)
inconsistent with his testimony .. .I1

We have noted above that in Rule 805, hearsay included
within hearsay is not excluded if each part of a combined
statement conforms with an exception to the hearsay rule. If
we regard the statement Tarver told the deputy that Daniels
had told him "I've got a score to settle . . .", the
declarant for that statement is Tarver. Under Rule
801(d) (1), the statement would not be hearsay if l1[t]he
declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement .. ."
In this case Tarver had been excused by the court as a
witness in the cause on the evening prior to the offer of the
rebuttal testimony by the State. He therefore was not
subject to cross-examination concerning the statement. This
is one of the requisites to form an exception to the hearsay
rule for the admission of the Tarverls statement, since
Tarver is the declarant. Admission of Phipps' testimony as
to Tarverls statement was therefore improper. Since Tarver
was not present for cross-examination, his statement was
inadmissible because the exception does not apply. Rule
801(d) (1), M.R.Evid.
Because we determine that under the Montana Rules of
Evidence the statement was not admissible in the
circumstances here, we need not decide whether the admission
of Phipps' testimony amounted to a denial of Daniels' right
to confrontation of witnesses against him, since plainly the
absence of Tarver made his cross-examination impossible. The
United States Supreme Court has not settled this point,
sometimes holding that the admission of out-of-court
statements violates a party's right to confrontation under
the Sixth Amendment, and at other times holding that
admission of such statements did not violate that amendment.
See discussion in 11 Moore's Federal Practice $ 800.02[2] (2d
ed. 1976).
Hzving determined that error was committed in the
admission of Phipps' testimony, we must then determine
whether the error may have been harmless. That, of course,
depends on whether the admission of the statement causes
prejudice to the defendant. This Court must be able to
state, in cases of error which we regard as harmless, that
beyond a reasonable doubt the error did not affect the
outcome of the trial. Chapman v. State of California (1967),
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; State v. Sandstrom
(1979), 184 Mont. 391, 603 P.2d 244. Daniels' self-defense
position made it imperative that he establish that he was not
the aggressor in bringing about the death of Jimmy John.
Phipps' testimony if accepted at face value would make
Daniels definitely an aggressor in stepping out of the
automobile to meet Jimmy John. Effectively, his defense of
self-defense was considerably weakened, if not destroyed by
Phipps' testimony. Obviously the purpose of the offer of
Phipps' testimony was to prove the truth of the matter
asserted in the statement, that Daniels had a score to settle
with Jimmy John.
 On this ground, therefore, this cause must be reversed
and remanded for a new trial.
11.

Daniels argues he was denied a speedy trial here.
Jimmy John's death occurred on June 7, 1981. Daniels
was jailed until the 37th day, July 14, when he was released
on bail. He had been arraigned on June 30, 1981, after a
delay in appearance by his retained counsel. On November 24,
the 170th day from the date of the shooting, the court set
trial for January 18, 1982. On January 12, 1982, the 219th
day from the date of the shooting, defense counsel requested
continuance of the trial because he was to undergo eye
surgery. The court reset the trial for February 23, 1982.
On February 26, 1982, the 265st day from the shooting,
Daniels moved to dismiss for denial of a speedy trial. The
motion was heard by the court on March 2, 1982, but meanwhile
the trial was reset to March 22, 1982. On March 1, 1982, the
268th day from the day of the shooting, defense moved the
court to depose Tarver, which had not been done before. The
trial was reset to March 23, 1982.
After the deposition of Tarver was taken on March 2,
1982, it appeared that defense counsel might be required to
testify for the purpose of impeaching Tarver based on prior
statements he had made to them. The State moved to
disqualify defense counsel on the grounds that they might he
witnesses in the case. The court disqualified counsel on
March 23, 1982. Eventually the court had to appoint further
counsel for the defendant as an indigent on May 11, 1982.
Then the trial setting was changed to July 6, 1982, and
thereafter, by the District Court sua sponte, to July 13,
1982.
 A total of 401 days elapsed between the day of the
shooting and the date of the commencement of the trial.
Daniels was not ready for trial as late as March 1, 1982,
when it was necessary to take the deposition of the witness
Tarver. Continuances had been requested by defense prior to
that. Tarver's second motion for dismissal on speedy trial
grounds was made on June 11, 1982 and was by the court
denied.
In our opinion, the time lapse was largely attributable
to Daniels, and insufficient time elapsed chargeable to the
State to trigger the analysis required under Barker v. Wingo
(1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101.
111.

Daniels raises issues in this case related to
instructions which we must discuss for purposes of retrial.
Daniels was charged by the State with deliberate
homicide. The jury convicted him of mitigated deliberate
homicide, a lesser-included crime. Daniels had asserted the
affirmative defense of justification or self-defense. It was
necessary therefore for the District Court to guide the jury
with instructions on deliberate homicide, section 45-5-102,
MCA, mitigated deliberate homicide, section 45-5-103, MCA,
and justifiable use of force, section 45-3-102, MCA. The
court also instructed on negligent homicide, a further
lesser-included crime.
Daniels asserts that the jury should have been
instructed that the influence of extreme mental or emotional
stress for which there is reasonable explanation or excuse is
an element of mitigated deliberate homicide that must be
proved by the State; and that when self-defense is an
affirmative defense, the State has a duty to prove beyond a
reasonable doubt the absence - justification on the part of
of
the defendant.
We held in the recent case State v. Gratzer (NO. 83-157,
Decided April 24, 1984), that the influence of extreme mental.
or emotional stress, contained in the definition of mitigated
deliberate homicide in (section 45-5-103, MCA), is not an
element of the crime which the State is required to prove
beyond a reasonable doubt. We said:
"It is the duty of the State in a criminal
prosecution to prove beyond a reasonable doubt
every element of the crime charged. Does this mean
therefore that the influence of mental or emotional
stress is an element that the State must prove in
order to sustain a conviction of mitigated
deliberate homicide as a lesser-included crime? We
hold not. Under the statutory scheme defining
homicide in the Montana Criminal Code of 1973, all
purposely and knowingly committed homicides are
deliberate unless committed under the influence of
extreme mental or emotional stress. In defining
the offense of mitigated deliberate homicide, the
legislature did not create an additional element
for the State to prove relating to mental or
emotional stress. It simply stated the kind of
mitigation that would reduce a deliberate homicide
to a mitigated deliberate homicide. "
We further held that neither the State nor the defendant
had the burden of proof as to mitigating circumstances,
although either party may assume such burden, and that we
would leave it to the jury to "examine the evidence and, if
mitigating circumsta.nces appeared in a killing purposely and
knowingly committed by the defendant," the jury would then
find the defendant guilty of mitigated deliberate homicide.
Gratzer, supra.
This case, however, differs from Gratzer in that here
the defendant raised the affirmative defense of
justification, according to sections 45-3-102, MCA and
46-15-301 (2) (a), MCA. As an affirmative defense, justifiable
use of force in defense of person under section 45-3-102,
would entitle Daniels to an acquittal, as distinguished from
the result of influence of mental and emotional stress under
section 45-5-1-03, which would simply reduce deliberate
homicide to mitigated deliberate homicide. As to the
affirmative defense of self-defense Daniels had the burden of
proof.
How does the defense of justifiable use of force affect
the duty of the State to prove beyond a reasonable doubt
every element of the crime charged? Some uncertainty exists
in the cases. In State v. Azure (1979), 181 Mont. 47, 541
591 P.2d 1125, 1130, we stated that the jury should -
be
instructed that the State must prove the absence of
justification beyond a reasonable doubt, but sustained the
refusal of an. instruction to that effect because other
instructions had covered the subject. Subsequently, in State
v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9,
15-16, we said:
"This Court has been faced with numerous cases
challenging self-defense instructions in recent
years. As a result, Montana law in this regard has
become well-settled. Section 45-3-102, MCA,
defines 'justifiable use of force' and section
45-3-115, MCA, provides that it is an affirmative
defense. Since it is an affirmative defense,
rather than an element of deliberate homicide or
mitigated deliberate homicide, there is no
constitutional prohibition against placing the
burden of proof upon the defendant. Patterson v.
New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53
L.E.2d 281. However, '[tlhe law in Montana is that
although the burden of persuasion remains on the
State. in order to avail himself of the affirmative
defense of self-defense, the defendant has the
burden of producinq sufficient evidence on the
issues to raise a reasonable doubt of his guilt. '"
(Citing cases) In State v. Azure (1979), Mont.,
591 P.2d 1125, 1130, 36 St.Rep. 514, 518, we stated
that an instruction stating the prosecution must
prove the absence of justification beyond a
reasonable doubt is a correct statement of the
law." (Emphasis in original.)
In State v. Lundblade (Mont. 1981), 625 P.2d 545, 38 St.Rep.
441, we held that it is the duty of the State to prove each
element of the offense charged. From these cases the true
rule can be drawn: The State has the burden of proving
beyond a reasonable doubt every element of the offense
charged, or any lesser-included crime within such charge; the
defendant if he raises an affirmative defense has the burden
of producing sufficient evidence on the issue to raise a
reasonable doubt of his guilt, in this case a reasonable
doubt as to his guilt of deliberate homicide or of mitigated
deliberate homicide.
We held in Gratzer that the absence of justifiable use
of force was not an element of the crime of deliberate
homicide which the State had to prove. The jury therefore
should not be told that t.he prosecution must prove the
absence of justification beyond a reasonable doubt. It is
sufficient for these purposes if the trial court instructs
the jury that the defendant has the burden of producing
sufficient evidence on the issues to raise a reasonable doubt
of his guilt when the defendant raises justifiable use of
force as an affirmative defense. In this case, the District
Court instructed the jury to that effect.
A further instructional error claimed by Daniels relates
to the instructions on justifiable use of force. The
District Court instructed the jury as to use of force in
defense of person in accordance with the statute, section
45-3-102, MCA, and gave a further instruction outlining the
necessity for reasonableness in the use of such justifiable
force. However, he defined the word "imminent" which appears
in section 45-3-102, MCA, as follows:
 "'Imminent' means threatening to occur immediately,
near at hand, impending; as used in relation to
self-defense, it means such an appearance of
threatening or impending injury as would put a
reasonable and prudent man to his instant defense."
This instruction limited improperly the purpose and
intent of the word "imminent" in section 45-3-102, MCA, which
reads as follows:
"Use- force in defense of person. A person is
- of
justified in t 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 . . ."
(Emphasis added.)

In the quoted statute, section 45-3-102, MCA, the word
"imminent" applies to the assailant, the aggressor; the
person imminently threatened is entitled to use force against
the aggressor "when and to the extent that he reasonably
believes that such conduct is necessary." The effect of the
instruction in this case defining "imminent" is that the
person defendinq himself must act instantly. This is a
limitation not to be found in the statute defining
justifiable use of force. The threatened person is entitled
to act "when and to the extent that he reasonably believes
that such conduct is necessary. " (Emphasis added. ) This
may or may not be instantly. It depends upon the
reasonableness of the circumstances.
IV.

The District Court granted a motion in 1-imine on behalf
of the State and refused the admission into evidence of the
sheriff's records of an earlier incident when Jimmy John,
knowing or apparently knowing that Daniels was within
hearing, allowed a gun to drop out of his pocket while Jimmy
John was sitting at the bar and Jimmy John, in retrieving the
pistol, asked somebody nearby whether the pistol was big
enough to kill Daniels. The incident was reported to the
sheriff by Daniels. Statements were taken from witnesses.
Eventually Daniels received a letter from the county attorney
informing him that although Jimmy John did threaten to shoot
Daniels, " . . . it is not apparent that he ever took any
affirmative action in that direction."
The District Court allowed testimony in the record to
the effect that the earlier incident had occurred and had
been reported to the sheriff but refused any testimony
respecting the outcome of the report, including the county
attorney's letter. There was testimony that nothing further
had been done by the county. Daniels claims that the
sheriff's records and the letter would help establish
Daniels' frame of mind in defending himself when the incident
with Jimmy John occurred.
Technical errors in rulings of evidence are not grounds
for reversal and in order to allow reversal the ruling must
affect substantial rights. State v. Romero (1973), 161 Mont.
333, 505 P.2d 1207; Rule 103, M.R.Evid. We have stated
repeatedly that the admission of evidence is a matter of
discretion for the trial court which will not be disturbed,
unless a manifest abuse of discretion is shown.
Since the testimony in this case included the earlier
incident, Daniels' substantial rights were not affected by
the refusal of the proffered evidence. Rule 103, M.R.Evid.
v.
Daniels objects to the deletion by the trial court of an
offered instruction which contained a paragraph to the effect
that the jury could consider the State's failure to call
witnesses or to produce other evidence shown in the case to
be in existence and available.
Daniels bases his right to this paragraph the
instruction on the grounds that the State failed to produce
the knife allegedly used in the incident; it failed to
produce the .38 pistol allegedly given to Daniels by Tarver,
and, it failed to produce the revolver which was in the front
seat of the victim's truck at the time of the fight. The
State also failed to produce Tarver as a rebuttal witness.
In civil ca.sesat least, the jury is to be instructed on
proper occasions that if weak or less satisfactory evidence
is offered when it appears that stronger more satisfactory
evidence is within the power of a party, the evidence offered
should be viewed with distrust. Section 26-1-303(5), MCA.
That, however, is not the portent of the offered instruction
here. It went rather to how the jury should weigh and
consider the evidence. We find no merit in this assignment
of error.
VI .
Finally, Daniels contends that the imposition of an
"enhanced" penalty under section 46-18-221 (1), MCA, is a
violation of the double jeopardy clauses of the federal and
state constitutions.
Since this case is now being reversed for new trial, the
enhancement of Daniels' sentence is moot. Note, however,
that we settled this question in State v. Davison (Mont.
1980), 614 P.2d 489, 37 St.Rep. 1135.
VII.
Daniels' conviction of mitigated deliberate homicide is
reversed and the cause remanded to the District Court for a
new trial.
We concur:

a& * .
h &&
Chief Justice

Justices
 I concur and dissent as follows:
Although I agree that the trial court erred in
permitting the testimony of Greyson Phipps, I disagree with
the way the majority has handled this issue. If I correctly
understand the majority position it is that Phipps' testimony
was inadmissible because the declarant Tarver had been
dismissed from the stand and was not present in the courtroom
when Phipps testified. The majority quotes Rule 801 (d) (1)
M.R.Evid. which provides that a statement is not hearsay if
the declarant testifies at the trial and the offered
statement is inconsistent with his testimony. The purpose of
this rule is to allow impeachment of any witness who
testifies in the case.
If I understand the majority correctly they would have
permitted this hearsay statement to be used if Tarver was
seated out in the courtroom. This is not the law. The
offered hearsay statement must be inconsistent with, and
therefore impeach, testimony previously offered by the
declarant.
I would rea.ch the same result as the majority for the
reason that this statement did not impeach Tarver's
testimony. The closest testimony tending to be inconsistent
with the offered hearsay is as follows:
"Q. Did Nolan say anything to you? A. I don't
know. Probably did. I might have said something
to him back, but I don't really remember it,
because I was half in the car and half out."
To impeach this testimony given by Scott Tarver, the
State called Greyson Phipps as a rebuttal witness. The
following testimony was objected to as hearsay:
"Q. Did he relate to you a conversation that he
and the Defendant, Nolan Daniels, had just as he
and Daniels were getting out of Daniels' car. A.
Yes.
"Q. What did Tarver tell you the Defendant said as
he was about to get out of the car? A. Well, in
my officer's report there that I wrote shortly
afterwards, he stated that Mr. Daniels had said
that had a score to settle and Mr. Tarver stated
 that he'd better be careful, the big Indian will
whip your ass."
The appropriate hearsay objection was made by defense
counsel and the court overruled the objection. Before the
Phipps testimony could be admitted that testimony had to
directly contradict testimony offered by Tarver. Tarver was
not asked about the statement. He admitted having a
conversation when he was getting out of the car. However,
Tarver's testimony is too general to allow this hearsay to be
used for impeachment purposes.
It should also be noted that Phipps did not apparently
have an independent recollection of what Tarver's statement
was as Phipps read the statement from his notes. No
foundation was laid for "past recollection recorded."
Neither was foundation laid to show that the witness had an
independent recollection of the statement after having his
memory refreshed by reference to the notes. Although no
objection was made on this ground the testimony was
technically inadmissible as it was given by the witness.
The majority opinion, in discussing the instruction on
justifiable use of force, uses language from which I wish to
dissent. The majority opinion states:
"As to the affirmative defense of self defense
Daniels had the burden of proof."
This is not so. The opinion correctly goes on to say
that Da.niels had the burden to come forward with evidence
sufficient to raise a rea.sonable doubt. This is a correct
statement of the law. Daniels had no burden of proof.
The majority opinion states:
"We held in Gratzer that the absence of justifiable
use of force was not an element of the crime of
deliberate homicide which the State had to prove."
Gratzer did not involve justifiable use of force. The
only issue in Gratzer was whether the court erred in failing
to instruct with respect to the burden of proof in a
mitigated deliberate homicide case. Gratzer did not raise
self d e f e n s e and t h e r e f o r e t h e a p p e a l d i d n o t i n v o l v e any

i s s u e with reference t o " j u s t i f i a b l e use of force".

I agree with t h e majority opinion t h a t t h e t r i a l c o u r t

i n t h i s case c o r r e c t l y i n s t r u c t e d t h e jury t h a t t h e defendant

had the burden of producing sufficient evidence on

" j u s t i f i a b l e use of f o r c e " s o as t o r a i s e a reasonable doubt

of his guilt. The c o r o l l a r y is that, once d e f e n d a n t had

produced s u f f i c i e n t e v i d e n c e t o r a i s e a r e a s o n a b l e d o u b t , t h e

State had the burden of negating the defense beyond a

reasonable doubt or the defendant is entitled to an

acquittal.

I n summary, I would r e v e r s e and remand f o r a new t r i a l

for the reason that the trial court erred in admitting

hearsay evidence. I n accordance with m d i s s e n t i n Gratzer I
y

would instruct the trial court that, on retrial, the

d e f e n d a n t i s e n t i t l e d t o an i n s t r u c t i o n t h a t t h e burden o f

proof remains on the State to negate mitigation beyond a

reasonable doubt. I would f u r t h e r r e q u i r e t h e t r i a l c o u r t t o

g i v e t h e same i n s t r u c t i o n w i t h r e s p e c t t o t h e burden on t h e

S t a t e t o negate " j u s t i f i a b l e use of force". Whether we a r e

t a l k i n g about m i t i g a t i n g mental d i s t r e s s o r j u s t i f i a b l e use

o f f o r c e , t h e burden i s on t h e d e f e n d a n t t o come forward w i t h

s u f f i c i e n t evidence t o r a i s e a reasonable doubt. Thereafter,

the State has the burden of excluding these propositions

Mr. J u s t i c e D a n i e l J . Shea:
Con c rcw&ncL
I join i n t h e foregoing -6 Mr. J u s t i c e Morrison.
Mr. Justice L. C. Gulbrandson dissenting.

I respectfully dissent from the holding of the
majority opinion that the admission of Officer Phipps'
rebuttal testimony constituted reversible error.
The majority opinion states:
"Daniels' self-defense position made it
imperative that he establish that he was
not the aggressor in bringing about the
death of Jimmy John. Phipps' testimony
if accepted at face value would make
Daniels definitely an aggressor in
stepping out of the automobile to meet
Jimmy John. Effectively, his defense of
self-defense was considerably weakened,
if not destroyed by Phipps' testimony."
The record, in summary, portrays a defendant looking
for trouble. It is unrebutted that: (1) The defendant,
anticipating problems, armed his companion, Scott Tarver,
with a pistol. (2) That the defendant blocked the victim's
vehicle with his own vehicle. (3) That the victim asked the
defendant to get out of the way so that he could leave. (4)
That after the altercation, next to the victim's pickup, the
defendant walked to the driver's side of his car, attempted
to reach his car keys through the open window, then opened
the door and sat down on the front seat. (5) The defendant

removed the car keys, walked to the rear of his car,
approximately thirty-seven feet away from the victim. (6)
The defendant opened the trunk of his car, obtained his Colt
.357 from a box in the trunk, and walked directly back to
the victim, firing four shots almost simultaneously. (7)
That the victim had remained at the side of his pickup. (8)

That the victim had nothing in his hands. (9) That one
bullet hit the victim's left shoulder from the front; that
another bullet entered the middle of the victim's back and
t h e i n j u r y would h a v e b e e n f a t a l w i t h i n f i v e m i n u t e s ; t h a t a

third bullet entered the back and passed through the
victim's heart. (10) That t h e s h o t s t o t h e victim's back

w e r e f i r e d w i t h i n a d i s t a n c e of one t o f o u r f e e t . (11) T h a t

none of the witnesses characterized the victim as the
aggressor.
There was additional testimony, denied by the
d e f e n d a n t , t h a t (1) t h e v i c t i m had p u s h e d t h e d e f e n d a n t away
saying that he didn't want any more trouble with the

defendant; ( 2 ) t h a t t h e v i c t i m s t a t e d h e wanted t o b e l e f t

a l o n e ; and ( 3 ) t h a t , t h e r e a f t e r , t h e d e f e n d a n t , w i t h a k n i f e

i n h i s l e f t h a n d , came b a c k a t t h e v i c t i m , p r i o r t o t h e t i m e
t h e v i c t i m h i t t h e defendant with t h e h o r s e shoe n i p p e r s .
In my view, the jury, even without the rebuttal
t e s t i m o n y of O f f i c e r P h i p p s , would h a v e had t o d i s r e g a r d t h e

d e f e n d a n t ' s c l a i m of s e l f - d e f e n s e . I would, therefore, hold
t h a t t h e a l l e g e d e r r o r was h a r m l e s s , a n d would a f f i r m t h e
conviction.

Justice'