No. 88-594
IN THE STJPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and. Respondent,
-vs-
DENNY DEAN SHAW,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable Nat Allen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John S. Forsythe, Forsyth, Montana
For Respondent :
Hon. Marc Racicot, Attorney General, Helena, Montana
Robert F.W. Smith, Asst. Atty. General, Helena
.-Mr. Keith D. Haker, County Attorney, Miles City,
Montana
".*
Submitted: May 11, 1989
Decided: June 2, 1989
..
U
i .I
.
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The defendant, Denny Shaw, appeals his conviction from
the District Court of the Sixteenth Judicial District, Custer
County. Following a jury trial, the defendant was found
guilty of felony theft and burglary and was sentenced to 10
years at the Montana State Prison. We reverse.
The defendant's brief presents seven issues for our
review. Since we conclude that reversible error has been
committed with respect to one of those issues, the remaining
six will not be discussed. We consider whether i-t was error
to allow the State to impeach a defense witness by asking if
he had been convicted of a crime and asking him to disclose
what crimes he had committed in view of Rule 609, M.R.Evid.
On July 21, 1987, John Helm of Miles City, contacted the
Custer County Sheriff's Office to report the theft of a skill
saw, some tools, a .22 caliber rifle, two cameras, and mis-
cellaneous groceries. He later reported that a rototiller
was missing as well. On August 5, 1987, an anonymous woman
called the Custer County Sheriff's Office to report that
groceries stolen from the Helm residence were taken to the
James Carpenter residence by Mike Johnson.
Mike Johnson later gave a statement to the Custer County
Deputy Sheriff concerning the offenses. Johnson stated that
the Helm burglary was suggested by Lorna Kidd at a drinking
party attended by Lewis Carpenter, Rose Carpenter, Carol
Carpenter Johnson and Gary Johnson. The evidence established
that the defendant was not present at that party. Mike
Johnson, his brother Gary, and his wife Carol then traveled
to a bar where they met a person named Danny or Denny Shaw.
Mike Johnson testified that he and Denny Shaw had commjtted
.
the burql-ary
N p h y s i c a l e v i d e n c e was p r e s e n t e d by t h e S t a t e l i n k i n g
o
t h e defendant t o t h e crime. Prior t o t r i a l , several of the
S t a t e ' s w i t n e s s e s were shown p i c t u r e s of Denny Shaw, whom
t h e y i d e n t i f i e d a s t h e man who committed t h e b u r g l a r y w i t h
Mike Johnson. A t trial, those witnesses identified the
defendant with varying degrees of c e r t a i n t y .
During t h e d e f e n d a n t ' s p r e s e n t a t i o n o f h i s c a s e , a bar
owner was c a l l e d t o t e s t i f y t h a t i t was n o t t h e d e f e n d a n t who
s o l d him t h e . 2 2 r i f l e which was a l l e g e d l y t h e same r i f l e
s t o l e n from t h e Helm r e s i d e n c e . The b a r o w n e r ' s t e s t i m o n y
was corroborated by another defense witness, Charles
Schoonover, who was a t t h e b a r t h e n i g h t t h e gun was b r o u g h t
in. Mr. Schoonover t e s t i f i e d t h a t he w a s n ' t s u r e who b r o u g h t
t h e gun i n t o t h e b a r , b u t t h a t i t was n o t t h e d e f e n d a n t . He
t e s t i f i e d t h a t he had known t h e d e f e n d a n t f o r t e n t o f i f t e e n
years.
On c r o s s e x a m i n a t i o n o f M r . Schoonover t h e S t a t e engaged
i n t h e following inquiry:
Q. Have you e v e r been c o n v i c t e d o f a c r i m e ?
Mr. ChrFstF: Your Honor, I ' m g o i n g t o o b j e c t t o
t h a t q u e s t i o n . I don' t b e l i e v e i t ' s w i t h i n t h e
scope o f c r o s s - e x a m i n a t i o n .
Mr. Corbin: I b e l i e v e t h a t h a s t o be w i t h i n t h e
s c o p e , Your Honor.
The Court: It's cross-examination. Overrl~led.
Q. (by M r . Corhin) Have you?
A. Yeah.
Q. What c r i m e ?
A. Intimidation.
Q. Any o t h e r c r i m e s ?
A. Assault.
Q. Anything involving guns?
The defendant argues that the foregoing cross-
examination is impermissible as a method of impeachment under
Rule 609, M.R.Evid., which states:
For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a
crime is not admissible.
The State argues that the introduction of such evidence
was harmless error because Mr. Schoonoverls testimony merely
corroborated that of the bar owner and added nothing to the
defendant1 case.
s Despite the substance of the witness "
testimony, this Court will not condone prosecutorial conduct
which is in clear violation of Rule 609, M.R.Evid. We note
that generally, it is the defendant who objects to the intro-
duction of other crimes evidence. See State v. Just (19791 ,
184 Mont. 262, 602 P.2d 957; State v. Lave (1977), 174 Mont.
401, 571 P.2d 97; State v. Heine (1976), 169 Mont. 25, 544
P.2d 1212; State v. Jensen (1969), 153 Mont. 233, 455 P.2d
631. In that circumstance, such evidence is inadmissible
unless it falls within an exception of Rule 404(b),
M.R.Evid.:
Other crimes, wrongs, acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
Mr. Schoonover's testimony as to his crimes failed to reveal
a motive, opportunj.ty, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. As a result the
evidence was not admissible as an exception under Rule
4 8 4 (b), M.R.Evid.
The record fails to disclose any appropriate reason for
the State's inquiry as to the prior criminal conduct of Mr.
Schoonover. Clearly it was not something inadvertent in
nature, as the defendant's attorney objected to the question
but was overruled by the trial court. We conclude that the
intention on the part of the State was to discredit the
witness by showing that he had been engaged in crimes of
intimidation and assault, and that the intimidation crime
involved guns. We further conclude that the aim on the part
of the State was to improperly impugn the character of the
defendant and thereby suggest a greater likelihood of guilt
of the crimes with which he was charged. We will not toler-
ate this intentional and significant evasion of our r~zles.
We conclude that the prosecution's inquiry clearly was
improper under Rule 609, M.R.Evid., and that none of the
exceptions stated in Rule 404(b), M.R.Evid. applied. We hold
that it was reversibl-e error for the District Court to all-ow
this testimonv.
The judgment of con~riction is reversed and the case is
remanded for new trial.
We Concur: _/--7
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