No. 90-550
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
v.
LOREN ROBERT BAKER,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Dennis G. Loveless, Attorney at Law, Helena, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, Helena,
Montana; Patricia J. Jordan, Assistant Attorney
General, Helena, Montana; Mike McGrath, Lewis and
Clark County Attorney, Helena, Montana; Carolyn
Clemens, Deputy County Attorney, Helena, Montana
Submitted on Briefs: April 4, 1991
Decided: July 2 6 , 1 9 9 1
JUL. 2 6 -1991
Ed L i t 1
CLERK OF S U P R E M E COURT
STATE OF MONTANA
Justice William E. Hunt, Sr., delivered the opinion of the Court.
The defendant, Loren Robert Baker, was convicted by a jury in
the First Judicial ~istrict,Lewis and Clark County, of robbery,
reckless driving, and carrying a concealed weapon. He appeals from
that verdict. We affirm.
The issues raised on appeal are:
1. id the trial court err when it allowed the State to offer
testimony of prior crimes and alleged acts of the defendant?
2. Did the trial court err when it limited the testimony of
the defendant's expert witness?
3. id the trial court err in permitting the reading of an
~nformationof a previously charged offense?
On the evening of December 9, 1989, Baker had several drinks
at a local bar. Around midnight, when the bartender informed him
he would be closing soon, Baker went to the liquor store, which was
connected to the bar, and purchased a bottle of whiskey. Baker
testified that he was on his way out the door when two patrons
physically thrust him out the door, threw him on the ground, and
began searching him. Baker testified that he hit his head when he
was thrown to the ground. The patrons testified that they thought
Baker was stealing an additional bottle of whiskey, and that the
bartender thought so too. They grabbed Baker and tried to get the
bottle away from him.
Baker testified that he did not remember the following
incidents to which one patron testified: Baker, while on the
ground outside of the bar, pulled a .22 caliber pistol out of his
belt or his fanny pack. One patron held Baker while the bartender
took the gun away from him. When the patron let him up, Baker went
to his car and retrieved another gun. The patrons and the
bartender locked themselves in the bar and called the police.
Baker shot through the door, striking a customer. He then drove
away.
A police officer testified that several police cars began
following Baker with lights and sirens on. Baker went off the
road. The police surrounded the car, Baker got out, the police
retrieved a gun from the car, and Baker was taken into custody.
Baker was charged with robbery (or in the alternative,
criminal endangerment), reckless driving, and carrying a concealed
weapon. Baker filed notices that he intended to rely on the
defenses of justifiable use of force and mental disease or defect.
The State filed notice that if Baker or his witnesses testified as
to Baker's passive nature, it would introduce evidence of his
previous incidents of violence against peace officers and other
persons pursuant to State v. Just, 184 Mont. 262, 602 P.2d 957
(1979) . The State filed a supplemental notice stating it would
include an incident from January 1988 when Baker was caught
stealing while intoxicated at a grocery store.
At trial, Baker's aikido (a martial art) instructor testified
that Baker had a good understanding of the nonviolent,
nonaggressive nature of the aikido practice. The State
cross-examined regarding his tendency toward passivity. Baker's
clinical psychologist testified that Baker was a passive individual
who avoided conflict and saw himself as a victim. The psychologist
stated that Baker had informed him of three prior encounters with
the legal system. On cross-examination, the State inquired into
the psychologist's knowledge of Baker's prior acts of violence.
Baker then testified as to his own version of the prior acts. The
State produced testimony on rebuttal of those prior acts. Baker
now contests the cross-examination of the aikido instructor and the
State's testimony on rebuttal.
Did the trial court err when it allowed the State to offer
testimony of prior crimes and alleged acts of the defendant?
After Baker's aikido instructor testified as to Baker's
training, the State cross-examined as follows:
Q. As I get your testimony, it is either expressed or
by implication that Mr. Baker here is a gentle
individual who is nonaggressive?
A. That is correct.
Q. Okay. And that is the idea you are trying to get
across to the jury is this is a nonaggressive docile
sort of guy who wouldn't do anything to hurt anybody
unless it is absolutely necessary?
A. That is correct.
Baker did not object to this cross-examination at the time,
but later objected that he had not brought out evidence of his
nonaggressive nature on direct exam, so it was improper to do so
on cross-examination. The court disagreed, finding that Baker had
indeed put his character in issue. The State subsequently
introducedtestimony on rebuttal of prior aggressive acts to refute
the claim of nonaggressiveness, including incidents of being
intoxicated and attempting to use weapons and attempting to steal.
On appeal, Baker claims that the evidence relating to the prior
aggressive acts is inadmissible because it does not conform to Rule
404 (b) , M.R.Evid., and State v. Just, 184 Mont. 262, 602 P.2d 957
(1979). However, we find Rule 404(a)(l), M.R.Evid., not Rule
404(b), M.R.Evid., and Just, to be the applicable law.
Rule 404(a) (I), M.~.~vid.,permits character testimony on
rebuttal if the opposing party has put character in issue. Rule
404 (a)(I), M.R.Evid., states:
(a) Character evidence generally. Evidence of a
person's character or a trait of his character is not
admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion, except:
(1) Character of the accused. Evidence of a pertinent
trait of his character offered by an accused, or by the
prosecution to rebut the same.
(Emphasis added).
Baker's focus on Rule 404(b), M.R.Evid., and Just is
misplaced. The purpose of the aikido instructor's testimony was
to show Baker's propensity to behave in a certain manner, or in
other words, to show a pertinent trait of his character. Character
having been put in issue, it was properly rebutted by the
prosecution under Rule 404(a)(l), M.R.Evid.
Did the trial court err when it limited the testimony of the
defendant's expert witness?
Baker attempted to use a clinical psychologist to testify as
to the symptoms a concussion could produce. The court restricted
the psychologist's testimony to the actual mental condition of
Baker, and did not permit him to testify as to the cause of it.
The court found that the psychologist was not qualified to give an
opinion regarding the relationship of a blow to the head to a
disruption of mental faculties. Baker submits that this
restriction deprived him of a fair trial.
The determination that a witness is an expert is largely
within the discretion of the trial judge and should not be
overturned in the absence of an abuse of discretion. State v.
Martin, 226 Mont. 463, 736 P.2d 477 (1987). The defense made no
attempt to qualify the psychologist as a medical expert, so we find
no abuse of discretion in the District Court's determination that
a psychologist may not have the expertise to testify on a medical
subject .
Did the District Court err in permitting the reading of an
Information of a previously charged offense?
On direct examination, Baker testified as to his version of
a previous assault charge. On cross-examination, the State read
the ~nformationrelating to the charge in order to clarify a fact.
Baker objected, presumably on relevancy grounds, but the court
permitted it. Baker now argues that the reading denied him a fair
trial by poisoning the minds of the jurors.
Baker himself testified as to the incident on direct
examination. The reading of the Information was, therefore,
relevant and properly within the scope of cross-examination and did
not prejudice Baker's case to the jury.
Affirmed.
We concur: