No. 90-383
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT EUGENE YOUNG,
Defendant and Appellant.
APPEAL FROM: District Court ofthe Seventeenth Judicial District,
In and for the County of Phillips,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert L. Stephens, Jr., argued; Attorney at Law,
Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Jennifer Anders, argued; Assistant Attorney General,
Helena, Montana
John C. McKeon, Phillips County Attorney, Malta,
Montana
Submitted: June 4 1 1991
Decided: July 3 0 , 1991
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Robert Eugene Young was found guilty of aggravated
assault, a felony, by a jury sitting in the Seventeenth Judicial
District Court, Phillips County. He appeals from that conviction.
We reverse.
The sole issue for review is whether the defendant's right of
confrontation was abridged when the District Court refused to grant
immunity to a witness who invoked his Fifth Amendment privilege
against self-incrimination before full cross-examination had been
completed.
In the early morning hours of April 11, 1989, defendant Robert
Young and friends, Loren Greene and Doug Simanton, were driving in
Malta. They apparently had an exchange with the victim, Raymond
Doney, Jr. , and his friend, Curtis Horn, who were parked on the
street in another truck.
Young then drove to a large parking lot called llWestside.ll
Doney and Horn arrived there shortly after the Young vehicle.
Words were exchanged between the occupants of the two trucks and
a gun that had been in Doneyls truck was fired. There is
conflicting testimony as to who fired first, Young or Horn, but
Doney was wounded.
Horn then drove the truck with Doney from the site of the
assault, lost control of the truck, and wrecked. The two men were
found by police and Doney was taken to Havre for treatment. Young
was charged with attempted deliberate homicide and, alternatively,
felony assault.
Horn was interrogated regarding the evening's events on
April 11 at 3 a.m., at 9 a.m., and again on April 19. At trial,
defense counsel attempted to cross-examine Horn on certain
statements from the interrogations. Cross-examination was
completed on the first statement, but halfway through the
cross-examination of the second statement, Horn invoked his Fifth
Amendment privilege against self-incrimination and refused to
answer. Defense counsel immediately requested immunity for Horn,
but the court stated it did not think it had the power to grant
immunity. Defense counsel then asked the prosecutor to request
immunity. He declined and the witness was excused.
A jury found the defendant guilty of aggravated assault. The
defendant moved for a judgment of acquittal notwithstanding the
verdict, or a new trial, partially on grounds that Young had been
denied his right to complete the cross-examination of Horn. The
court denied the motion, stating that Horn's direct testimony had
in fact harmed, not helped, the State's case, and that evidence
through further cross-examination llwouldnot have effected [sic]
the jury's verdict one iota." This appeal ensued.
Was the defendanttsright of confrontation abridged when the
District Court refused to grant immunity to a witness who invoked
his Fifth Amendment privilege against self-incrimination before
full cross-examination had been completed?
Article 11, 5 24, of the Montana Constitution provides that:
In all criminal prosecutions the accused shall have the
right to appear and defend in person and by counsel ...
to meet the witnesses against him face to face ....
Mont. Const. art. 11, 5 24 (1972).
We have held that the right to confront witnesses is not
abridged when the witness is available for cross-examination.
State v. Pease, 222 Mont. 455, 724 P.2d 153 (1986). We emphasized
the importance of cross-examination in State v. Charlo, 226 Mont.
213, 735 P.2d 278 (1987), by affirming the admission of
out-of-court statements because the declarants were subsequently
available for cross-examination. Charlo, 226 Mont. at 216, 735
The district court judge is empowered to compel a witness to
answer and to grant limited immunity in order to facilitate the
examination process. Section 46-15-331, MCA, states in part:
Before or during trial in any judicial proceeding, a
justice of the supreme court or judge of the district
court, upon request by the attorney prosecuting or
counsel for the defense, may require a person to answer
any question or produce any evidence that may incriminate
him. If a person is required to give testimony or
produce evidence in accordance with this section in any
investigation or proceeding, no compelled testimony or
evidence or any information directly or indirectly
derived from such testimony or evidence may be used
against the witness in any criminal prosecution.
Section 46-15-331, MCA.
When asked by defense counsel to grant immunity, the court
responded that it did not think it had the power to do so. Not
having the statutes at hand, counsel, in a desperate effort to
retain the witness, asked the prosecutor to grant immunity. The
prosecutor declined. Upon motion for new trial, the court stated
that even if Horn had continued to testify, his further testimony
would not have affected the jury verdict, and denied the motion.
The State concedes on appeal that further cross-examination
would probably have forced Horn to incriminate himself on charges
of perjury and assault. Having concluded that the Fifth Amendment
was properly invoked initially, the State balances that privilege
against the defendant's right to cross-examine. It argues that
further cross-examination would merely have been cumulative because
Horn's testimony to that point had established him as an
unbelievable witness.
Young, however, contends that a number of critical
inconsistencies could have been shown through Horn's testimony
which would have called into question the version of the story
offered by the State. Young cites 14 damaging statements from
Horn's second interrogation on April 11, and 16 statements from
the April 19 interrogation, for which no cross-examination was
permitted. This material includes conflicting statements about who
instigated the fight and who fired the rifle. Young maintains that
the information was relevant to his attempted affirmative defense
of justifiable use of force.
The 1972 Montana Constitution and subsequent cases analyzing
the Confrontation Clause have made it abundantly clear that full
cross-examination is a critical aspect of the right of
confrontation. Pease, 222 Mont. 455, 724 P.2d 153; Charlo, 226
Mont. 213, 735 P.2d 278. When requested by the defendant to grant
immunity to the witness, the District Court mistakenly concluded
it did not have power to grant such immunity. Upon its subsequent
review of the trial and transcript, the District Court concluded
that the lack of full cross-examination had not prejudiced Young's
case because his testimony was extremely contradictory and the
excluded testimony, at most, would have been cumulative. After a
careful review of the record, we note that the evidence with regard
to the altercation, including the firing of both a rifle and a
pistol, were sharply in conflict. We are unable to conclude that
the limitation on cross-examination did not have an adverse effect
on the defendant's case. We further conclude that full
cross-examination in this case was a critical aspect of the
defendant's right of confrontation.
We reverse the conviction and remand for new trial.
We Concur:
/>