No. 8 6 - 3 5 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ALBERT CHARLO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William Boggs, Missoula, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Barbara Claassen, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney; Edward P.
McLean, Deputy County Atty., Missoula, Montana
-
Submitted on Briefs: Dec. 4, 1 9 8 6
Decided: March 31, 1987
Filed:
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Albert Charlo appeals a jury conviction for aggravated
assault in the Fourth Judicial District, Missoula County. On
April 7, 1986, Charlo was designated a dangerous offender and
sentenced to thirty years in prison for the aggravated as-
sault and use of a dangerous weapon. We affirm the
conviction.
Charlo raises two issues for our review:
1. Did the District Court abuse its discretion when it
admitted tape-recordings of prior inconsistent statements
into evidence?
2. Did the District Court abuse its discretion when it
gave the State's jury instruction regarding flight by the
defendant?
On the evening of October 3, 1985, appellant Charlo
arrived at a Missoula laundromat with his daughter, Beth
Charlo, and Beth's boyfriend, Walter (Sonny) Steele. The
three of them had been drinking since morning. Over the next
hour, they dried clothes and continued to drink. When they
left at approximately 9:00 p.m., Beth's car would not start.
The owner of the laundromat gave them a jump start, and
noticed that Steele attached the battery cables, while Beth
sat in her car and Charlo stood beside the car. Several
minutes later, Beth came inside and told the owner that
Steele had been stabbed. The owner then assisted Steele, and
noticed that Charlo was gone.
At the hospital, the surgeon who operated on Steele
noted that the stabbing wound punctured both walls of the
stomach and was nearly fatal. That same night at the hospi-
tal, the police tape-recorded Beth's statements about the
incident. In the tape, Beth stated that she saw Steele fall,
then get up and say to her, "He just stabbed me." On October
24, 1985, while Steele was in the hospital, the police tape-
recorded Steele's version of the stabbing incident. In the
tape, Steele stated that he saw Charlo take a knife out of
his back pocket. Steele also stated, "I knew Albert stabbed
me."
Issue 1
Did the District Court abuse its discretion when it
admitted tape-recordings of prior inconsistent statements
into evidence?
At trial, both Steele and Beth testified that they did
not know who stabbed Steele. Following their testimony, the
police officers who tape-recorded their statements testified
to the identity and accuracy of the tapes. During the offi-
cers' testimony and over Charlo's objections, the District
Court admitted Steele's and Beth's tape-recorded statements
into evidence. The statements were then played for the court
and jury.
Charlo first contends that the prior inconsistent
statements were improperly admitted as substantive evidence,
because the use of the taped statements violated his right to
confront the witnesses as guaranteed by the Sixth Amendment.
The Sixth Amendment provides: "In all criminal prosecutions
the accused shall enjoy the right ... to be confronted with
the witnesses aga-insthim."
Our analysis of this issue is governed by Rule
801 (d) (I), M.R.Evid.:
A statement is - hearsay if:
not ...
declarant testifies at the trial or
The
hearing and is subject to cross-examina-
tion concerning the statement, and the
statement is (A) inconsistent with his
...
testimony [Emphasis added.]
We have held that Rule 801(d) (1) (A) does not require
that the prior inconsistent statements be made under oath.
State v. Fitzpatrick (1980), 186 Mont. 187, 196, 606 P.2d
1343, 1348. We also have held that prior inconsistent state-
ments admitted under Rule 801 (d) (1)( A ) can be used as sub-
stantive proof in a criminal case. When the witness who made
the prior statement is present at trial and subject to
cross-examination, the accused's Sixth Amendment right to
confrontation is preserved. State v. Pease (Mont. 1986), 724
P.2d 153, 158, 43 St.Rep. 1417, 1423; California v. Green
(1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.
However, before a witness's prior inconsistent state-
ments can be admitted, the witness must either retract or
otherwise deny those statements at trial. Both Steele and
Beth were asked about their prior statements and given an
opportunity to explain the inconsistency. Steele testified
that he could not remember who stabbed him:
Q. Do you think you know who stabbed
you?
A. Well, like I said last time, I ain't
here to think. I think that's up to the
jury.
Q. Well, I'm asking, who do you think
stabbed you?
A. I don't know. I never thought about
it.
Similarly, Beth's tape-recorded statement is also
inconsistent with her trial testimony, where she stated that
she could not remember if Charlo stabbed Steele:
Q. Did you make a statement to any
officer at the hospital that, My father,
Albert Charlo, stabbed Sonny?
Q. Yes.
A. I don't remember.
Q. Did you say it at the hospital?
A. I don't remember.
Q. Now, Beth, did you father, Albert
Charlo, stab Sonny?
A. I don't know.
Q. Did you accuse him of it?
A. I did, but I don't know.
In Pease, we stated that the purpose of the Confronta-
tion Clause is to prevent depositions or expert affidavits
from being used against a defendant, instead of placing the
witness before the jury and subjecting him to direct and
cross-examination. We further stated that , "the Confronta-
tion Clause is not violated by admitting a declarant's out-
of-court statements if the declarant is testifying as a
witness and subject to full and effective cross-examination."
Pease, 724 P.2d at 158, citing Green, 399 U.S. a.t 157, 90
S.Ct. at 1934-1935, 26 L.Ed.2d at 496-497.
Both Steele and Beth were repeatedly available for
observation and cross-examination. Steele took the stand on
three separate occasions on three separate days. Beth took
the stand twice on two different days. Both witnesses were
subjected to cross-examination after the tapes had been
admitted into evidence.
Furthermore, the judge specifically told Charlo:
You can cross-examine Beth Charlo at any
time, call her as a witness and cross-
examine her about what she said on the
tape recording, or you can cross-examine
Steele's corroborating testimony placed Charlo near
Steele just prior to the stabbing:
Q. Who was standing near you outside?
Was anyone around you?
A. Yeah, someone was.
Q. Who?
A. Him.
Q. Whoishim?
A. Albert.
Steele's corroborating testimony also describes Beth's reac-
tion and comments to Cha.rlo:
Q. Okay. Now, prior to you getting
over to Beth, did you hear Beth say
anything to her father?
A. Yeah, I did.
Q. What did you hear her say?
A. I heard her sa.y, What are you going
to do, stab me, too?
Thus, the corroborating testimony of three witnesses
places Charlo near Steele immediately prior to the stabbing
and confirms that Steele was stabbed. The corroborating
testimony of one witness places a knife in Charlo's hand.
In summary, we find no merit in Charlo's contention
that his right to confront the witnesses was violated by the
admission of the tapes. The taped statements of Beth and
Steele were played only after they each testified that they
did not know who stabbed Steele. Both witnesses were then
subject to cross-examination. Furthermore, the prior incon-
sistent statements were corroborated by their own testimony.
We hold that the District Court properly admitted the prior
inconsistent statements into evidence.
Issue 2
Did the District Court abuse its discretion when it
gave the State's jury instruction regarding flight by the
defendant?
The District Court gave the following instruction
the jury:
If you are satisfied that the crime
charged in the information has been
committed by someone, then you may take
into consideration any testimony show-
ing, or tending to show, flight by the
defendant. This testimony may be con-
sidered by the jury as a circumstance
tending to prove a consciousness of
guilt, but is not sufficient of itself
to prove guilt. The weight to be given
such circumstance and significance if
any, to be attached to it, are matters
for the jury to determine.
This instruction was taken verbatim from the Montana
Criminal Jury Instructions (1983), published by the State Bar
of Montana, and based upon the authority of State v. Walker
(1966), 148 Mont. 216, 419 P.2d 300.
Charlo contends that the instruction constituted an
improper comment on the evidence. Charlo argues that the
instruction should have included a statement about evidence
of "lack of flight by the defendant, a s a circumstance tend-
.
ing to prove a consciousness of innocence."
Our analysis of this issue begins with § 46-16-401(4),
MCA, which states:
(a) When the evidence is concluded, if
either party desires special instruc-
tions to be given to the jury, such
instructions shall be ... delivered to
the court.
...
The instructions shall be settled &
(b) --
the court without the ~resence of the
jury. [Emphasis added.]
Thus, the selection of instructions lies within the discre-
tion of the trial court.
The instruction, as given by the court, was not an
improper comment on the evidence. A jury instruction may be
given when it is relevant to evidence or issues in a case,
and when it is supported either by some evidence or some
logical inference from other evidence presented a t trial.
State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298,
1304. The jury instruction was supported by the testimony of
the laundromat owner, who stated that Charlo was gone when
the owner assisted Steele. The instruction was also support-
ed by Beth's testimony that Charlo left the crime scene after
Reth discovered Steele's injury:
Q. Did he stand there? Did he walk
away? What did he do?
A. I guess he walked away.
Q. Which way did he walk?
A. I don't know, towards Broadway, I
guess.
Furthermore, in his own testimony, Charlo admitted leaving
the scene shortly after the stabbing:
Q. You just stood there?
A. ... Reth went into the Clean Scene
Laundry to call 911. Okay? In the
meantime, there was a little building
back here with a lot of green stuff on
it, and I just moseyed back, or moved,
back to the back, passed here (indicat-
ing) and finally I went into the shadows
of that building.
As given, the jury instruction does not comment on the
evidence but merely reflects the testimony of three
witnesses, including the defendant.
Charlo also contends that the instruction was unfairly
weighted in favor of the State. However, we have repeatedly
approved instructions regarding flight by a defendant. State
v. Shurtliff (1980), 187 Mont. 235, 244, 609 P.2d 303, 308;
State v. Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291,
1295. The instruction properly reflects the law in Montana
that flight by a defendant may be considered by the jury as a
circumstance tending to prove consciousness of guilt. State
v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851.
Furthermore, the instruction is conditioned by the phrase,
"may - - consideration any testimony
take into ... tending to
show, flight by the defendant." The phrase is not mandatory
and does not shift the burden of proof to the d.efendant.
State v. Goltz (1982), 197 Mont. 361, 371, 642 P.2d 1079,
1085.
The instruction merely told the jury to determine the
weight and significance, if any, of the evidence of flight.
The instruction plainly states that evidence of flight, "is
not sufficient of itself to prove guilt." The instruction
accords with our holding in State v. Walker, where we stated:
"The evidence is sufficient to support the giving of the
[flight] instruction, it was a matter for the jury to accept
or reject appellant's reasons ... It was the jury's task
then to weigh the evidence accordingly." Walker, 148 Mont.
at 226, 419 P.2d at 306. In contrast, Charlo's proposed
instruction was not supported b 7 the evidence and drew an
1
improper inference.
We find no merit in Charlo's contentions. The testimo-
ny of three witnesses points to Charlo's departure from the
crime scene. In light of such supporting evidence, we hold
that the District Court acted within its discretion and
properly gave the jury instruction on flight.
We affirm the District Court on both issues.
ArcwQ
Chief Justice
We concur: