State v. Lias

No. 84-339

I N THE SUPREME COURT O F THE STATE O F MONTANA

1985

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-

DON L I A S ,

Defendant ancYAppellant.

APPEAL FROM: D i s t r i c t C o u r t 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 C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e G o r d o n B e n n e t t , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For Appellant:

C h a r l e s E. Petaja; P e t a j a and S m o y e r , H e l e n a ,
Montana

F o r Respondent:

H o n . M i k e 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
M i k e M c G r a t h , C o u n t y A t t o r n e y , H e l e n a , Montana
C a r o l y n A. C l e m e n s , D e p u t y C o u n t y A t t o r n e y , H e l e n a

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S u b m i t t e d on B r i e f s : June 1 3 , 1 9 8 5
Decided: September 26, 1985

Filed: SEP 2 6 5985

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Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
The appellant, Don Lias, was convicted in Justice Court
on the charge of driving under the influence. He appealed to
District Court, and a jury returned a verdict of guilty. He
now appeals to this Court.
We affirm.
At about 9:00 p.m. on May 28, 1983, appellant, in
search of his business partner, went to a stock car race near
Helena, Montana. He purchased one beer and then a second.
After purchasing the second beer he was involved in a fight,
and the beer was spilled on him. He was injured in the fight
and suffered severe pain and disorientation. He then found
his business partner and left to go home. He contends he did
not drink any more that night.
Between 11:OO p.m. and 12:OO midnight, a highway pa-
trolman found appellant asleep in a vehicle parked in the
median of Interstate 15. The vehicle lights were on, and the
engine was running.
When appellant awoke, the patrolman found him somewhat
impaired in speech and mobility. The patrolman detected a
strong smell of alcohol. After some discussion and informing
himself of the situation, the patrolman arrested appellant
for driving under the influence. Appellant refused a field
sobriety test. He showed indications of belligerence and
noncooperation. Because of appellant's belligerence, the
patrolman radioed for help. An assisting officer arrived,
and appellant was taken to jail.
In Justice Court, on August 30, 1983, appellant was
found guilty of driving under the influence. He appealed to
the District Court, and on April 9, 1984, a six-person jury
returned a verdict of guilty. Appellant appeals to this
Court.
The issues presented are:
1. Whether certain testimony elicited by the prosecu-
tor was in violation of an order granting a motion in limine
to preclude certain testimony and, if so, absent timely
objection, whether was it plain error, depriving appellant of
a fair trial.
2. Whether sufficient evidence supports the verdict of
guilty beyond a reasonable doubt.
The first issue is whether certain testimony violated
an order precluding mention of certain matters and, if so,
whether, absent a timely objection, it falls within "plain
error." The testimony violated the order, but no objection
was made. We determine that the plain error doctrine does
not apply.
On appeal from Justice Court to District Court, a.ppel-
'n
at filed a motion in limine to preclude:
1. Any reference to a find.ing of guilty
in Justice Court.
2. Any reference, by way of impeachment
or rebuttal or otherwise, to any state-
ments made by Defendant in Justice
Court.
A minute entry is the only record of a ruling on the

motion in limine. It stated that the motion was granted.
The State argues that it understood the granting of the
motion to not preclude evidence of statements made by the
appellant under oath for purposes of impeachment. The mo-
tion, according to the minute entry of the clerk of court,
was granted in its entirety and prohibited such testimony.
However, the record as to precisely what the court ruled. in
chambers with relation to the motion in limine is not
complete, as no record exists of the discussion and ruling on
the motion other than the clerk of court's minute entry.
Rule 613, Mont.R.Evid., authorizes the use of prior inconsis-
tent statements for the purpose of impeachment.
The questioned testimony was testimony elicited on
cross-examination and testimony by a rebuttal witness called
to impeach appellant by a prior inconsistent statement. The
subsequent inconsistent statement was elicited by the prose-
cution on cross-examination:
Q. Isn't it true that on August 30,
1983, while under oath you stated that
you had had nothing to drink on May 28,
1983?
A. I don't think so.
In response to a question regarding statements made by
appellant on August 30, 1983, concerning drinking, the rebut-
tal witness, called to impeach the above testimony, stated:
A. He said, no, he didn't, he hadn't
consumed any alcohol that day.
August 30, 1983, was the date of the trial at Justice
Court. All reference to statements made by the appellant at
that trial were prohibited by the granting of the motion in
1imine . It wa.s error for the prosecution to elicit the
statement on cross-examination, and it was error to introduce
the rebuttal testimony. However, such errors are, in this
case, harmless errors.
The absence of appellant's objection to or the court's
intervention in the cross-examination and rebuttal testimony
suggests that counsel and the court recognized that the
motion in limine could not properly prevent the use of prior
inconsistent statements for impeachment purposes under Rule
613, M0nt.R.Evi.d. Here the substantial rights of the appel-
lant were not affected. Viewing the entire record, the
questioned testimony could only have had little, if any,
damaging effect on the jury determination. If error, it was
harmless error, and the "plain error" doctrine does not
apply. Errors not affecting substantial rights shall be
disregarded. Section 46-20-702, MCA.
The second issue is whether substantial evidence sup-
ports the jury verdict. In applying the substantial evidence
test to determine whether there was sufficient evidence to
support the jury verdict, this Court is governed by estab-
lished principles. In applying the test the evidence is
viewed in a light most favorable to the prevailing party.
The weight of the evidence and the credibility of the wit-
nesses are exclusively the province of the trier of fact. If
the evidence conflicts, it is within the province of the
trier of fact to determine which shall preva-il. The test is
met if a reasonable mind would accept the evidence as sup-
porting the conclusion reached. State v. Green (Mont. 1984),
685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564; State v. John-
son (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; State v.
Martinez (1980), 188 Mont. 271, 281-282, 613 P.2d 974, 980.
In this case substantial evidence supports the jury
verdict. Appellant was found asleep in his vehicle parked in
an interstate median. The vehicl~e lights were on, and the
engine was running. He was impaired in speech and mobility
and there was a strong smell of a.lcoho1 about him. He showed
signs of belligerence and noncooperation.
Affirmed.
We concur:

Justices
Mr. J u s t i c e W i l l i a m E . Hunt, S r . , dissenting:

I dissent and would r e v e r s e . After h i s conviction i n

Justice Court, where he appeared pro se, the defendant

appealed: t o t h e D i s t r i c t C o u r t . Prior t o trial., defendant

moved t h e c o u r t and t h e c o u r t g r a n t e d a m o t i o n i n l i m i n e t o

prevent all references in the trial d e novo in the above

c a u s e t o any o f t h e f o l l o w i n g :

1. Any r e f e r e n c e t o a f i n d i n g o f g u i l t i n J u s t i c e
Court.

2. Any reference, bl7 way of impeachment or
r e b u- o r o t h e r w i s e , t o a n y s t a t e m e n t s made by
- ttal
defendant i n J u s t i c e Court.

There a r e t h r e e i s s u e s i n t h i s case. They a r e :

1. Whether reversible error was committed by the

prosecutor, when, d u r i n g cross-examina.tj.on of t h e defendant

and w i t h o u t o b j e c t i o n by t h e defendant, h e asked q u e s t i o n s

that were in violation of the order g r a n t i n g a motion in

limine .
2. Whether t h e t e s t i m o n y a d m i t t e d w i t h o u t o b j e c t i o n i n

violati.on of the court's o r d e r was "plain error" depriving

a p p e l l a n t of a f a i r t r i a l .

3. Whether s u f f i c i e n t e v i - d e n c e s u p p o r t s t h e v e r d i c t o f

g u i l t y beyond a r e a s o n a b l e d o u b t .

A m o t i o n i n l i m i n e may b e u s e d t o e x c l u d e e v i d e n c e t h a t ,

even if relevant, has probative value substantially

o u t w e i g h e d by t h e d a n g e r of u n f a i r p r e j u d i c e . See, Rule 4 0 3 ,

M.R.Evid. A u t h o r i t y f o r t h e g r a n t i n g of a motion i n l i m i n e

rests with the inherent power of the court to admit or

exclude evidence and to take such precautions as are

necessary t o afford a f a i r t r i a l f o r a l l parties. Wallin v.
Kinyon Estate (1974), 164 Mont. 160, 1.64-1.65, 519 P. 2d 1236,
1238, citing 94 A.JJ.R.2d 1087.
As Professor Crowley has stated:
The motion in limine is not provided for in either
the statutes of Montana or the Rules of Civil
Procedure. It has, however, been recognized as a
valid and useful procedure by the Montana Supreme
Court in several cases !the first and principal
decision endorsing its use was Wallin v. Kinyon
Estate, 164 Mont. 160, 519 P.2d 1236).
The Latin phrase "in limine" means "at the
threshold" or "in theebeginning" and was used at
the early common law to denote motions that were
preliminary in character. Currently , however, the
term is used to denote motions made before or even
during trial to forbid certain lines of inquiry or
limit or prohibit the use of particular evidence."
William F. Crowley, Montana Pleading and Practice
Forms, p. 99 (1983).
The prosecution gave as its reason for asking the
question that raised the first issue in this case, as that
its understanding of the court's ruling was that the State
could not present evidence that appellant had been convicted
in Justice Court, but that it could, for purposes of
impeachment, present evid-ence of statements made by appel-lant
under oath. I think that the motion is plain on its face and
it would be difficult to believe that there could be any
mention or reference to the Justice Court trial for any
purpose, incl-uding impeachment.
The motion was argued in chambers. The record is a
minu-te entry that states, " lpl resent in chambers, out of the
presence of the jury, were the Deputy County Attorneys . ..
attorney for the defendant . . .. Upon presentation the
Court denied the motion to dismiss and granted the motion in
limine." The prosecution's argument that its understanding
of the court's ruling was that the State could not present
evidence that appellant had been convicted in Justice Court,
but that it could, for purposes of impeachment, present
evidence of statements made by appeilant under oath is not
persuasive. As this Court has stated, "[ilt is not the duty
of the prosecution to make independent determinations
concerning the admissibility of evidence once the court rules
such evidence is inadmissible. Willful attempts by counsel
to place excluded evidence before the jury may result not
only in a mistrial, but reversal." State v. Bain (1978), 176
Mont. 23, 29, 575 P.2d 919, 923.
Defendant argues that he did not object for the reason
that an objection or a motion to strike would not have cured
the damage done to defendant in violation of his substantial
rights. He cites a recent case of this Court finding
prejudicial and reversible error, because an admonition by
the court to disregard the information would not suffice to
remove the prejudice from the minds of the jurors because
"the goose is already cooked." Workman v. McIntyre
Construction Company (Mont. 1980), 617 P.2d 1281, 1285, 37
St.Rep. 1637, 1.642.
Defendant also argues that the conduct of the
prosecution in introducing prejudicial evidence in violation
of the court's ruling, has deprived him of a fair and
impartial trial, and is therefore grounds for a new trial.

In - 575 P.2d
Bain, at 923, this Court said that " [iln
determining whether such questions are so prejudicial to the
defendant as to require reversal, this Court must look (1) to
the reasonable inference to be drawn from the question, State
v. Toner, [(1953), 127 Mont. 283, 263 P.2d 9711 and (2)

whether such repeated attempts to offer excluded evidence
might have contributed to the conviction. State v. Langan
(1968), 151 Mont. 558, 445 P.2d 565."
 What is the inference to be drawn from the questions
asked of appellant in this case? Since there was no
reference directly to the Justice Court trial and conviction,
the questions and answers on cross-examination of the witness
on rebuttal must show indirectly that defendant was
prejudiced.
In District Court on cross-examination, in response to
the questions of the prosecution, the appellant testified as
follows:
Q. Mr. Lias, did you on August 30th, 1983, while
you were under oath make certain statements
regarding the same issues that we're here
discussing today? A. On August 30? Yes.
Q. Isn't it true that on August 30th, 1983, while
under oath you stated that you had nothing to drink
on May 28th of 1983? A. I don't think so.
Q. Mr. Lias, isn't it true that on August 30th,
1983 you stated that under oath, and, once again,
that you had no idea how the smell of alcohol got
on y ;
o r body on May 28th, 1.983? A. The testimony
- August 30th you say? (Emphasis added.)
on
Q. Yes.
The rebuttal. witness testified as follows:
Q. Okay. Dan, did you have an opportunity on or
about August 30th to hear some statements made by
the defendant in this case? A. Yes, I did.
0. And during the time that you heard those
statements, - you recall whether - - - -
do or not he was
under oath? A. Yes, he was. (Emphasis added.)
I would hold that these kind of questions raise a strong
inference that the jury might well conclude that the
defendant had been tried in another court and that his
testimony was conflicting. The actions of the prosecution
were done in violation of the order of the court.
As to the second part of the Bain rule, that "whether
such repeated attempts to offer excluded testimony might have
contributed to the conviction" we must only decide here
whether the one and very successful attempt to get the

e v i d e n c e i n was a c o n t r i b u t i n g f a c t o r t o t h e c o n v i c t i o n . The
e v i d e n c e i n t h i s c a s e was c o n f l i c t i n g . The a r r e s t i n g o f f i c e r

and t h e d e p u t y t h a t came t o h i s a s s i s t a n c e b o t h t e s t i f i e d

that t h e d e f e n d a n t was under t h e i n f l u e n c e o f a l c o h o l and

based their o p i n i o n on t r a i n i n g and e x p e r i e n c e i n dealing

w i t h p e r s o n s under t h e i n f l u e n c e o f a l c o h o l . Ms. E d i e Wood,

a w i t n e s s c a l l e d by t h e d e f e n s e t e s t i f i e d t h a t t h e d e f e n d a n t
had been i n a f i g h t t h a t day and d u r i n g t h a t f i g h t t h e b e e r

t h a t h e h e l d i n h i s hand was s p i l l e d a l l o v e r him. After the
f i g h t s h e h e l p e d him up from t h e ground. She d i d n o t see him

d r i n k any more b e e r . She t e s t i f i e d t h a t d e f e n d a n t had been

h i t and k i c k e d s e v e r e l y d u r i n g t h e f i g h t and was u n s t e a d y and

c o m p l a i n i n g a b o u t i n j u r i e s t o h i s body. He t o l d h e r t h a t he

t h o u g h t t h a t he w a s a l r i g h t e x c e p t f o r h i s hand. She d i d n o t
see him a g a i n t h a t n i g h t .

Another w i t n e s s c a l l e d by t h e d e f e n s e , Roger Hayle, t h e

p a r t n e r of t h e d e f e n d a n t i n t h e egg b u s i n e s s , t e s t i f i e d t h a t

h e saw t h e d e f e n d a n t t h a t day and t h a t t h e d e f e n d a n t t o l d him

that he had been in a f i g h t and complained of h i s hand.

Hayle t e s t i f i e d t h a t d e f e n d a n t ' s hand was swol.len up t o t h e
p o i n t where you c o u l d n ' t s e e t h e m u s c l e s . H e n o t e d bumps and

b r u i s e s on t h e head of t h e d e f e n d a n t . H e offered t o drive

t h e d e f e n d a n t t o t h e d o c t o r o r home b u t t h e d e f e n d a n t r e f u s e d

b e c a u s e h e needed h i s t r u c k t o g e t t o work. The d e f e n d a n t
t o l d him t h a t h e had t o be a t work by 6:00 a.m. t h e next
morning s o h e would have t o go home i n h i s t r u c k s o t h a t h e
would have it t o go t o work. Hayle t e s t i f i e d t h a t h e had
worked a s a b a r t e n d e r and had some e x p e r i e n c e w i t h s e e i n g

i n t o x i c a t e d p e o p l e and i n h i s o p i n i o n t h e d e f e n d a n t was n o t

i n t o x i c a t e d when h e saw him a t t h e r a c e s . H e testified that
he offered to drive the defendant home because of his
injuries and not because he thought he was under the
influence.
The trial judge who was in the best position to weigh
the effects of the testimony was not called upon to rule in
this matter because there was no objection. We are called
upon to decide a question that was not before the trial
judge, but is raised for the first time on appeal. I believe
that the adverse effect of the testimony obtained for the
purpose of impeachment may well have influenced the jury.
The defendant's failure to object does not overcome the
prejudice he suffered as a result of the prosecution's
violation of the court order that there cannot be 'Yalny
reference, by way of impeachment or rebuttal or otherwise, to
any statements made by the Defend-ant in Justice Court."
I do not consider the second issue of plain error or the
third issue of whether there was sufficient evidence to
support the verdict of guilty beyond a reasonable doubt
because of my belief that there was reversible error
committed by the prosecutor.
I would reverse.

Mr. Justice John C. Sheehy, concurs in the foregoing dissent
of Mr. Justice Hunt.