State v. Wallace

No. 85-464

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

1986

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-vs-

BRADLEY ALLEN WALLACE,

Defendant and A p p e l l a n t .

APPEAL F O :
R M D i s t r i c t Court of t h e S i x t e e n 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 Rosebud,
The Honorable A l f r e d B. C o a t e , Judge p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

James G. Hunt a r g u e d , H e l e n a , 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
Joe R o b e r t s a r g u e d , A s s t . A t t o r n e y G e n e r a l , Helena
John S . F o r s y t h e , County A t t o r n e y , F o r s y t h , Montana
C h a r l e s S p r i n k l e , Deputy County A t t o r n e y , F o r s y t h

Submitted: May 1 3 1 1986
Decided: O c t o b e r 2 2 , 1986

Filed:
oc r -: 2 ass6

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

Bradley Wallace appeals a Rosebud County jury verdict
convicting him of aggravated assault. The issues on this
appeal are:
(1) Whether the trial court erred in failing to either
direct a verdict for appellant or order a mistrial because of
the State's suppression of four witness statements.
(2) Whether the trial court erred in admitting the
testimony of a doctor whose name was endorsed as a witness
the first day of trial.
(3) Whether the trial court erred in admitting evidence

of appellant's possibly incriminating statement where the
State violated the court's discovery order by failing to
notify defense counsel of the statement.
(4) Whether the cumulative error rule mandates
reversal.
We find that only harmless error occurred in this case
and, therefore, we affirm.
The peculiar nature of this case requires that we set
forth the facts in some detail. On November 22, 1985, David
Scott, the eventual victim of the assault, was drinking in a
Colstrip, Montana, bar/bowling alley. Scott conversed with a
friend, David Cogdill, who introduced him to two ladies
seated at the bar. Scott had not previously known the two
ladies, Darla Baldwin and Shellie Miars. The appellant and
his girlfriend, Theresa Wray, were sitting at the bar next to
Cogdill-, Miars and Baldwin. Scott was moving around the bar
talking with different people. Cogdill, Miars, Baldwin and
Scott a.11 agree that the appellant referred to Scott, a.
Native American, as a "prairie nigger" while Scott was only a
few feet away. Scott and the appellant were not acquainted.
Scott became upset and wanted to ask appellant why he was
insulting him. Cogdill and the ladies calmed Scott down and
he did not physically confront appellant at that time.
Appellant claims that Scott then began cursing him and
Cogdill did hear Scott describing appellant with an
unpleasant phrase. At that point, appellant's girlfriend
leaned over the bar towards Scott and made a statement
variously described as "shut up" or "you guys think you're so
'I
tough" or "shut up or there will be some -
Scott testified that he did not remember what happened
at this point. Most of the witnesses agree that Scott began
to walk towards appellant. Arnie Garner, the bartender, was
watching the appellant and he testified that the appellant
emptied his beer mug on the floor, concealed the mug behind
his leg, stood up, approached Scott and smashed the mug over
Scott's head. All the witnesses agree that Scott had his
hands down at his sides. Garner stated that he did not see
anyone threatening the appellant or Theresa Wray and that
there were no indications that Scott was getting ready to
fight. Miars and Baldwin both testified that Scott did
nothing to provoke the attack. Tom Mulcahy, an acquaintance
of Scott who was also present in the bar, testified that
Scott was not threatening anyone nor was he in a challenging
stance. Cogdill testified that he thought Scott was
approaching appellant possibly to "ask appellant to step
outside. "
Appellant admits smashing the beer mug over Scott's head
but maintains that he did so in self-defense. Appellant
testified that Scott, without provocation, began verbally

assaulting appellant; t h a t Theresa Wray a s k e d S c o t t t o s h u t

up; that S c o t t immediately approached a p p e l l a n t a t a b r i s k

pace; t h a t S c o t t had h i s hands a t h i s s i d e s ; t h a t he t h o u g h t

S c o t t was g o i n g t o p h y s i c a l l y a s s a u l t a p p e l l a n t o r Wray; and

t h a t h e was a f r a i d o f a c o n f r o n t a t i o n .

The initial blow shattered the beer mug and left

appellant holding the mug's jagged glass handle. The

bartender, Garner, testified that at the two places the

handle joined the mug, the handle had jagged, razor-like

edges protruding one-half to three-fourths of an inch.

A p p e l l a n t c o n t i n u e d t o a s s a u l t S c o t t by s l a s h i n g a t h i s head

w i t h t h e g l a s s h a n d l e u n t i l Garner grabbed a p p e l l a n t and h e l d

h i s arms back. Garner and Tom Mulcahy saw a p p e l l a n t s l a s h

S c o t t once w h i l e C o g d i l l s t a t e d t h a t a p p e l l a n t s l a s h e d S c o t t

two o r t h r e e t i m e s . Both Miars and Baldwin a l s o t e s t i f i e d

that appellant t r i e d t o c u t S c o t t w i t h t h e broken h a n d l e .

Dr. Riggenbach t e s t i f i e d a s t o S c o t t ' s i n j u r i e s . Scott

s u f f e r e d a one i n c h l o n g l a c e r a t i o n and a two and o n e - h a l f

i n c h l o n g l a c e r a t i o n , b o t h on h i s f o r e h e a d . The l o n g e r one

penetrated t o the s k u l l . He a l s o r e c e i v e d a " r a t h e r s e v e r e "

laceration of the ear. The d o c t o r performed a s k i n g r a f t on

S c o t t ' s e a r , a s m a l l p a r t o f which was m i s s i n g . The d o c t o r

g u e s s e d t h a t h e used 30-35 s t i t c h e s on S c o t t i n a l l .

The p o l i c e a r r e s t e d a p p e l l a n t s h o r t l y a f t e r t h e a t t a c k

and took him to the Colstrip jail. A deputy sheriff

testified that a t the j a i l t h e a p p e l l a n t remarked, "It's a

h e l l of a deal . . . when you c a n ' t p r o t e c t y o u r s e l f from

some . . . blanket a s s t h a t ' s g o i n g t o k i c k your a s s . "
 Shortly after the incident, Baldwin, Miars and Cogdill
gave short, written statements to the police. Garner gave a
taped statement to the police. About a week later, Cogdill,
Baldwin and Miars gave more detailed, taped statements to an
investigating officer. The deputy county attorney charged
appellant with aggravated assault.
At the January 1985 omnibus hearing for this case, the
county attorney agreed in writing that the State had
"disclosed all evidence in its possession, favorable to the
defendant on the issue of guilt." The District Court also
granted. defendant's motions for (1) discovery of all
statements made by defendant to investigating officers or to
third parties and in the State's possession; (2) discovery of
the names of the State's witnesses and their statements; and
(3) inspection of all physical or documentary evidence in the
State's possession. Contrary to the court's ruling, prior to
trial the State only provided appellant with the three
witnesses' short written statements. The State failed to
provide defense counsel with the four longer, taped
statements or with appellant's racist statement made at the
jail.
Immediately prior to trial on May 28-31, 1985, appellant
made a motion in limine to prevent the State from referring
to any statements or admissions made by him against his
interest. The State then informed the court and defense
counsel of appellant's remark at the jail referring to a
"blanket ass." The court later allowed a deputy sheriff to
testify, over appellant's objection, to this remark.
While cross-examining Cogdill at trial, defense counsel-
learned of the State's failure to produce the four taped
witness statements. At that time, two of those witnesses had
already testified and defense counsel was in the middle of
questioning Cogdill, whose taped statement had been
suppressed. The statements were in some respects minimally
supportive of appellant Is theory of self-defense. Upon
learning of the withheld statements, defense counsel moved
for a directed verdict of acquittal. The court did not
immediately rule on that motion.
Later in the trial, the State called Dr. Riggenbach, the
victim's treating physician, as a witness. Appellant
objected claiming surprise and pointed out that the doctor's
name was not originally endorsed on the information. The
State had endorsed the doctor's name as a witness on May 28,
the first day of trial. The trial court allowed the doctor
to testify, relying in part upon a prosecutorial brief filed
on May 22 which indicated the doctor would testify.
At the close of the State's case, appellant moved for a
directed verdict of acquittal or, alternatively, for a
mistrial. The court denied both motions and the jury
convicted appellant of aggravated assault. This appeal
followed.
Nothing in the record suggests, nor does appellant
imply, that the suppression of evidence in this case was
other than negligent. Thus, we treat this case as involving
the negligent suppression of evidence. We agree with
appellant that the State acted improperly in suppressing the
taped statements and the jail statement and in endorsing Dr.
Riggenbach's name on the information on the first day of
trial. However, we find that these errors are in all
respects harmless errors and, therefore, not grounds for
reversal.
Montana follows the United States Supreme Court's
definition of what constitutes harmless error in a particular
case. State v. Daniels (Mont. 1984), 682 P.2d 173, 41
St.Rep. 880; State v. Warnick (Mont. 1985), 699 P.2d 1049, 42
St.Rep. 675. The United States Supreme Court has expressed
the harmless error rule as:

the principle that an otherwise valid conviction
should not be set aside if the reviewing court may
confidently say, on the whole record, that the
constitutional error was harmless beyond a
reasonable doubt.
Delaware v. Van Arsdall (1.986), 475 U.S. -
1 ,
- 106
S.Ct. 1431, 1436, 89 L.Ed.2d 674, 684. F e note that the
J
negligent suppression of evidence could constitute
constitutional error. ("The Due Process Clause of the
Fourteenth Amendment requires the State to disclose to
criminal defendants favorable evidence that is material
either to guilt or to punishment.'' California v. Trombetta
(1984), 467 U.S. 479, 480, 104 S.Ct. 2528, 2530, 81 L.Ed.2d
413, 417. Such suppression of evidence can be subject to the
harmless error rule. See United States v. Agurs (1976), 427
U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342.
Miars, in her suppressed statement, said that the
victim, David Scott, "kept telling us he would like to go
talk to [appellant], which we assumed would end up in a
fight." Miars also stated that "I was watching [the victim]
to make sure he didn't have anything in his hands." Miars
said that after Theresa Wray's comment, l1 [Darla a.nd I] both
knew there would be a fight." These portions of Miars'
statement are mildly exculpatory for appellant. The rest of
her statement is repetitive of other testimony at trial or of
her written statement provided to appellant before trial.
The suppressed statement of Darla Baldwin was similar
to, and perhaps less exculpatory for appellant than, her
written statement provided to appellant before trial.
Garner's taped statement was provided to appellant midway
through trial and before Garner testified. Garner ' s
statement basically establishes that he knew there was going
to be a problem. The suppressed statements of Baldwin and
Garner in no way prejudiced appellant.
The suppressed statement of David Cogdill was fairly
supportive of appellant's theory of self-defense. Cogdill
said that after the "prairie nigger" comment, "I knew there
was going to be a fight;" that as David Scott walked towards
appellant "I think [Scott] had intentions of drilling him
. . . ;" and that Cogdill tried to clear the bar of beer
bottles because "1 knew there was going to be a fight."
Defense counsel learned of these statements midway through
his cross-examination of Cogdill. Counsel obtained a copy of
the statement and used it effectively during the rest of the
cross-examination. Counsel brought out for the jury's
consideration the exculpatory comments for appellant
contained in the statement. Thus, any prejudice caused by
the suppression of Cogdill's statement was substantially
mitigated and the jury was able to consider the exculpatory
comments.
The last piece of suppressed evidence was appellant's
statement made while he was confined in jail. That statement
is mildly exculpatory in that appellant was maintaining he
had acted in self-defense. However, on May 24, 1985, four
days before trial, the State filed a pre-trial brief with the
court which recited the jail statement and warned that the
statement would be used against appellant. Thus, the
appellant did have belated notice of the remark.
Normally we would have serious misgivings about the
validity of any conviction where there has been a violation
of the court's discovery orders. However, in this case, we
can confidently say there was only harmless error in light of
all the testimony, especially the appellant's.
We find that, except for Cogdill's statement, the
suppressed evidence was either repetitive of other testimony
or only minimally supportive of a self-defense theory. The
damage caused by the suppression of Cogdill's testimony was
substantially mitigated as explained above. Moreover, we
find that appellant's own testimony belies his theory of
self-defense.
Every witness, including appellant, agreed that at the
time of the assault David Scott had his arms at his sides.
Except for appellant, every witness agreed that Scott did not
provoke the appellant to a physical assault. Appellant's
story is that Scott "verbally assaulted" him; that Scott
approached appellant at a quick walk; that he thought Scott
was approaching to physically attack appellant or Theresa
Wray; and that appellant was afraid of a confrontation. In
response to this "threat", the appellant lashed out with the
beer mug. Two witnesses stated that appellant concealed the
mug behind his leg from Scott. Cogdill, Garner, Mulcahy,
Miars and Baldwin all agreed that appellant continued to cut
or slash at Scott after the initial assault.
 Under Montana law, specifically B 45-3-102, MCA:

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.
We believe beyond a reasonable doubt that a jury would decide
that appellant's general feeling of apprehension, unsupported
by specific physical actions or threats by the victim, could
not justify striking David Scott with a glass mug and
slashing him with a sharp, glass handle. The continuing
nature of the assault was especially unjustified. We hold
that the error in this case was harmless beyond a reasonable
doubt.
Appellant also complains that the trial court erred in
allowing the State to endorse Dr. Riggenbachls name on the
information on the first day of trial. On May 22, the State
filed a reply brief which stated that the State had made
travel arrangements for the treating physician. On May 24,
the State filed a pre-trial brief which stated that Dr.
Riggenbach would testify. On May 29, appellant claimed
surprise as to the doctor's testimony.
The issue here is similar to an issue in State v.
Liddell (Mont. 1984), 685 P.2d 918, 41 St.Rep. 1293. In
Liddell, we upheld the District Court's decision allowing the
endorsement of an additional witness on the day of trial.
There, as here, the defense knew of the witness' connection
with, and importance in, the case. In Liddell, we stated
that, I1[I]t is discretionary with the District Court to allow
additional witnesses, . . . " 685 P.2d at 924. Therefore,
given that appellant cannot convincingly claim surprise, we
find no error under this issue.
Finally, appellant argues that the cumulative error in
this case mandates reversal of his conviction. The
cumulative error doctrine refers to a number of errors
prejudicing a defendant's right to a fair trial. State v.
Close (Mont. 1981), 623 P.2d 940, 948, 38 St.Rep. 177,
187-188. In this case, we find no prejudicial error
affecting the substantial rights of defendant.
A£ firmed.

We concur:
 IN THE SUPREME COURT OF THE STATE OF MONTANA

No. 85-464

THE STATE OF MONTANA,
Plaintiff and Respondent,

BRADLEY A. WALLACE,
Defendant and Appellant.

DISSENTING OPINION

As history shows, good law must occasionally rise out of the
ashes of bad facts. Such should be the case in State v. Wallace.
The facts indicate that the victim, a Native American named David
Scott, was dealt with brutally and the Appellant deserves punish-
ment. Unfortunately, we see some relatively serious procedural
flaws in the State's presentation of its case. It is always
difficult to measure the impact of procedural flaws, but the re-
sult of a reversal is to try the case again. This is a fair re-
sponse to serious procedural flaws, and will maintain the public
confidence in judicial integrity.
At the close of the State's case during the trial, the
District Court responded to the defense motions regarding the
failures of the State to disclose evidence with these words:
All right. This is the first time in 18 years that
the State of Montana has not provided full discovery
and I will accept the State's excuse that it was a
mistake and in view of the testimony given on both
direct and cross-examination, it would appear to the
Court that the defense counsel was capable of bring-
ing out all information that he desired or at least
he's been able to provide a good defense, and perhaps
the State is entitled to make one mistake every 18
years so the motion is denied. (Trans. p. 322, LNS.
6-14).
part of the Defendant. On top of this error, the failure to timely
endorse an expert witness could have conceivablycaughtthe Defendant's
counsel unprepared considering the technical details involved in
the cross-examination of a doctor. Finally, the statements made
by the Defendant to the Deputy Sheriff are clearly prejudicial,
and any defense counsel would want to know such statements in
advance in order to prepare his case to lessen their impact.
Proper notice, as required by the Omnibus Order, might have changed
the defense tactics. In sum, proper State procedure might have
lead to better defense preparation, might have improved the cross-
examination of an expert witness, might have given rise to softening
the impact, and might have provided more credence to the defense
of justifiable use of force. For example, the information might
have been addressed in the opening statement, and it is the
experience of many trial lawyers that addressing one's weaknesses
in an opening statement can be effective strategy.
In summary, we are true believers in the procedures established
through omnibus hearings and orders, and the philosophy of pre-
venting surprise and having the opportunity to prepare your best
case. This is the proper procedure to best promote justice.
These procedures were violated, albeit unintentionally. It is the
job of this Court -- not to require perfection -- but to require
high standards such that defendants are not unfairly prejudiced.
The fine line was crossed in this case, and another trial is in
order.
 To a certain extent we agree that it is understandable and
predictable that the State will make a mistake every now and then.
However, it should not be to the detriment of an unlucky defendant.
Rather, the State should take the consequences, and re-try the
matter.
The Appellant presented three strong arguments regarding the
failure of the State to disclose pertinent evidence. First, the
State failed to disclose certain witness statements which were
favorable to the defense. Second, the State failed to endorse an
expert witness in a timely fashion. And third, the State failed
to notify the Defendant of his alleged statements previously made
to an investigating officer. These errors -- and we definitely

perceive these shortcomings as errors -- violated the Omnibus
Order of the District Court. The real issue in this case is whether
the omnibus procedures and orders are meaningful or meaningless.
We believe they are meaningful, and a defendant should not be
penalized by their violation. Once that omnibus procedure order
is given, it is clear that parties and their counsel rely on its
contents. It is only fair and just that those orders be upheld.
According to precedent in this State, the "purpose of pre-trial
orders is to prevent surprise and to permit counsel to prepare
their case for trial on the basis of the pre-trial order." State
v. Doll, 42 St. Rptr. at 44. It would stretch one's imagination
to believe that the series of procedural violations on the part
of the State did not to some extent prejudice and hamper the
Defendant. The rule laid down by State v. Patterson, 40 St. Rptr.
600 (1983), is that the nature of negligently suppressed
information must be material, vital, exculpatory, and prejudicial.
It is definitely conceivable that this standard is met in the case
at bar. Some of the statements which the State failed to disclose
tend to show justifiable fear and justifiable use of force on the
 We therefore dissent to the majority Opinion.

P seph B. Gary, ~ i s t r T c tJudge
sitting for Justice William E.
Hunt

We concur:

I
J,&stj.ce John C. Sheehy
'
e

tice Frank I
~ o r r i s o u