No. 91-295
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MICHAEL THOMAS STEWART,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Martin R. Studer argued, Attorney at Law, Bozeman,
Montana
James H. Goetz, Goetz, Madden & Dunn, Bozeman,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Micheal Wellenstein argued, Assistant Attorney
.--General,Helena, Montana
-~*,Scott B. Spencer, County Attorney, Libby, Montana
Submitted: May 4, 1992
a Decided: June 23, 1992
I
Clerk
Justice Fred J. Weber delivered the Opinion of the Court.
A jury from the Nineteenth Judicial District Court, Lincoln
County, convicted the defendant, Michael Thomas Stewart (Stewart)
of theft, attempted theft, and forgery. Stewart appeals. We
affirm in part and reverse in part.
The issues raised for review are restated as follows:
(1) Did the District Court abuse its discretion by limiting
the scope of Stewart's cross-examination of Mitchell Hicks (Hicks)?
(2) Did the District Court prejudice Stewart's defense by
excluding testimony offered by Arlene Peterson (Peterson) to
impeach Hicks?
(3) Did the District Court abuse its discretion by allowing
the State to introduce a previously undisclosed tape-recording to
impeach Roger Kensler (Kensler) on rebuttal?
(4) Was Stewart denied his right to effective assistance of
counsel?
Stewart, former police chief of Troy, Montana, was convicted
on three separate charges; theft, attempted theft and forgery. The
theft charge in this case involves Stewart's attempt to obtain
clear title on a 1978 Ford Bronco by depriving the Federal Deposit
Insurance Corporation (FDIC) of its lien on the vehicle. The count
of attempted theft arises from Stewart submitting a fraudulent
claim to the Highway Department for window damage to the Bronco
which he alleged occurred in a highway construction area. Finally,
the forgery count is based on Stewart signing Hicks' name on a
statement Stewart submitted to the Highway Department in connection
2
with the fraudulent window damage claim.
In 1985, Stewart financed a 1978 Ford Bronco through the
Yellowstone State Bank of Lander, wyoming. When the Yellowstone
State Bank failed, the FDIC succeeded to the ownership of the lien
on Stewart's Bronco. At trial, Tom Bales (Bales), owner of Bales
Auto Acres of Lander, Wyoming, testified that he agreed to assist
Stewart in improperly obtaining clear title to the vehicle.
Although Bales admitted he never stored the vehicle; in November
1989, he falsified a storage bill, and filed a storage lien on the
Bronco. Because the lien exceeded the value of the vehicle, FDIC
released its lien on the Bronco. Bales received a clear
certificate of title, and transferred title to Hicks. ~icks
then
transferred title to Stewart at Stewart's request.
Hicks testified that he never negotiated with Stewart for the
purchase of the vehicle. In addition, Hicks testified he had no
knowledge that Bales placed the title in his name until Stewart
came to Hicks and directed him to transfer the document into
Stewart s name.
Next, the State presented evidence that Stewart submitted a
false claim to the ~ighwayDepartment in November 1989, Stewart
claimed a rock struck the vehicle's rear window as he drove the
Bronco on Highway 2 below a construction blast area. Stewart
stated that Hicks was a passenger in the Bronco at the time the
rock struck the vehicle. At trial, Stewart maintained his story
that a rock from the blast area had cracked the vehicle's window.
However, he testified the damage actually occurred in June or July
1989, not November 1989.
Hicks, on the other hand, testified that no damage ever
occurred to the vehicle while he was a passenger; and that the
vehicle's window was already broken in May 1989, when Hicks first
met Stewart. In addition, Hicks testified that in a previous
conversation, Stewart had stated that the construction on Highway
2 presented a prime opportunity for submitting a false claim to the
Highway Department.
Finally, the State presented evidence that Stewart forged
Hicks' name on a statement he submitted to the Highway Department
in connection with the glass damage claim. Stewart testified that
he signed Hicks' name to the statement with Hicks' permission.
Hicks denied giving Stewart permission to write his signature on
the statement.
I
Did the District Court deny Stewart's right to confrontation
and abuse its discretion by limiting the scope of Stewart's cross-
examination of Mitchell Hicks?
Hicks, a former reserve law enforcement officer in Troy,
Montana, disclosed information to the Lincoln County Sheriff's
Department which led to Stewart's arrest. Thereafter, Roger
Kensler, Mayor of Troy, suspended Hicks. Consequently, Hicks
brought a wrongful discharge suit against the city.
At trial, the District Court denied Stewart's attempt to
introduce the details of this wrongful discharge suit. Stewart
contends this lawsuit established bias and motive for Hicks to
fabricate his testimony. Thus, the court improperly limited his
cross-examination.
Admissibility of evidence is within the sound discretion of
the trial court and will not be reversed absent abuse of
discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d
183, 188. While evidence establishing bias or a witness's motive
to fabricate is properly admissible; here, the lower court
determined evidence of a separate civil action between Hicks and
the city established neither bias nor motive to fabricate. Stewart
has failed to persuade this Court that the District Court abused
its discretion.
Next, Stewart claims this restriction on cross-examination
denied him his right to confrontation guaranteed by the Sixth
Amendment to the United States Constitution, and Article 11,
Section 24 of the Montana Constitution. This Court has previously
held that limiting the scope of cross-examination does not
necessarily violate an accused's right to confrontation. Sloan v.
State (1989), 236 Mont. 100, 104-105, 768 P.2d 1365, 1368. Here,
we conclude the court properly restricted Stewart's cross-
examination of Hicks based on the limited probative value of the
testimony.
We hold the District Court did not abuse its discretion or
violate Stewart's right to confrontation by Limiting Stewart's
cross-examination of Hicks.
I1
Did the District Court prejudice Stewart's defense by
excluding testimony offered by Peterson to impeach Hicks?
Hicks testified that he never negotiated with Stewart to
purchase the Bronco, and never authorized Stewart to forge his
signature on the damage claim. Further, Hicks testified that he
had never discussed either of these matters with Arlene Peterson.
Later during the trial, Stewart called Ms. Peterson to impeach
Hicks1 testimony. Peterson testified that she had discussed these
matters with Hicks, and that Hicks had authorized Stewart to sign
his name to t h e damage c l a i m . H o w e v e r , on t h e basis of hearsay,
the court prohibited Peterson from testifying Hicks had informed
her that he was negotiating with Stewart for the purchase of the
Bronco. Stewart contends Peterson's testimony was evidence of a
prior inconsistent statement by a prosecution witness, and thus
proper impeachment. Rule 801(d)(l)(A), M.R.Evid.
The State contends that the court's exclusion of this
testimony is harmless error. We disagree. Here, the record
reveals that the State's case rested largely on the testimony
presented by Hicks. Thus, the lower court's exclusion of testimony
presented to impeach Hicks was prejudicial to Stewart's defense and
an abuse of discretion.
We hold the exclusion of Peterson's testimony prejudiced
Stewart's defense. We reverse on this issue.
I11
Did the District Court abuse its discretion by allowing the
State to introduce an undisclosed tape-recording for impeaching
Kensler on rebuttal?
At trial, Roger Kensler denied that Hicks was suspended for
disclosing information leading to Stewart's arrest. On rebuttal,
the State impeached Kenslerlstestimony by introducing a previously
undisclosed tape-recording. On the tape, Kensler indicated that
Hicks was suspended for blowing the whistle on Stewart. Stewart
contends the court should have excluded this tape due to the
State's failure to disclose the tape prior to trial under 5 46-15-
322, MCA. Stewart further contends the recording was irrelevant
and improperly admitted under Rule 403, M.R.~vid., because its
prejudice outweighed any probative value. We disagree.
First, the State did not violate 5 46-15-322, MCA, by failing
to disclose the tape. Section 46-15-322, MCA (1989), states in
part:
. . . , the prosecutor shall make available to the
defendant ... the following material and information
within his possession or control:
(a) a list of the names and addresses of all persons
whom the prosecutor intends to call as witnesses in the
case-in-chief, together with their relevant written or
recorded statements; . . .
Here the tape recording was used to impeach testimony of
Kensler, a defense witness. Thus 5 46-15-322(a), MCA, does not
require disclosure. Next, as impeachment evidence, the tape was
relevant and probative, although it did not support the criminal
charges against Stewart. Finally, the tape did not contain
exculpatory evidence which required disclosure under 5 46-15-
322(e), MCA.
We hold the court did not abuse its discretion in allowing the
State to introduce a previously undisclosed tape to impeach Kensler
on rebuttal.
IV
Was Stewart denied his right to effective assistance of
counsel?
To sustain a claim of ineffective assistance of counsel,
defendant must show deficient performance which so far prejudiced
the defense that it deprived the defendant of a fair trial.
strickland v. washington (1984), 446 U.S. 668, 104 S.Ct. 2 0 5 2 , 80
L.Ed.2d 674. Stewart claims four instances of ineffective
assistance of counsel.
First, Wilfred and Faye Palmer, owners of a body shop in Troy,
Montana, testified that prior to his negotiations with Bales,
Stewart solicited a fraudulent damage estimate from them for the
purpose of filing a mechanic's lien on the Bronco. Stewart claims
this is "other crimes1' evidence. As such his attorney was
deficient in failing to object, and its admission deprived Stewart
of a fair trial.
Next, Stewart contends defense counsel failed to object when
the prosecutor asked Hicks about an alleged sexual relationship
between defense witness Loretta ~ingley and Stewart. Further,
defense counsel. failed to object when, without basis, the
prosecutor asked Stewart if he abused juveniles during arrest.
Stewart claims these comments were highly inflammatory and
prejudicial and deprived Stewart of a f a i r trial.
We disagree. Here, testimony from Wilfred and Faye Palmer was
properly admitted, not as evidence of other crimes, but as part of
the corpus delicti in Stewart's continuing scheme to defraud the
FDIC of its lien on the Bronco. Next, testimony regarding the
sexual relationship between Stewart and Hingley was properly
admissible to show Hingley's motive to testify falsely. Finally,
the prosecutor's question insinuating Stewart abused juveniles in
custody was irrelevant to the crimes charged. In all above cited
instances, we find that defense counsel's failure to object did not
prejudice Stewart's defense, nor deprive Stewart of a fair trial.
The final instance of ineffective assistance of counsel
claimed by Stewart involves defense counsel's failure to object to
inappropriate remarks made by the prosecutor during closing
arguments. A portion of the State's closing argument is set out
below:
And remember, ladies and gentlemen, these sorts of cases
are tough. Public officials, which Mike Stewart was,
should have the public's highest respect and regard and
they shouldn't be doing illegal things. They shouldn't
be involved in trying to steal things like and make false
claims. They shouldn't be involved in making false
claims because more than anything, it destroys the public
trust.
You want a crooked cop. this is a crooked cop and he
was causht. And the only way that you, we can stop this
is for you to render a proper verdict in this case.
If you, with the evidence before you, say to this
man, you are not guilty, you are saying go out and be a
crooked cop, we like crooked cops.
And the only message that you can say, it is
overwhelming that he is that. He is a thief. And he is
a liar. And the verdict that you should render on what
you have heard in these sorts of cases based on what you
have heard here is you are guilty of theft on the Bronco
...
Mr. Stewart, he is Mr. Stewart, Mr. Stewart, you are
a crook. You are quiltv. (Emphasis added.)
This Court discussed improper comments by the prosecution in
State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246. That case
involved an interpretation of Disciplinary Rule No. 7-106(C),
adopted in 1973. Rule No. 7-106(C)(4) provided in part:
In appearing in his professional capacity before a court,
a lawyer shall not:
(4) Assert his personal opinion as to the justness
of a cause, as to the credibility of a witness, as to the
culpability of a civil litigant, or as to the quilt or
innocence of an accused; but he may argue, on his
analysis of the evidence, for any position or conclusion
with respect to the matter stated herein.
There we held that it is highly improper for a prosecutor to
express a personal opinion as to the defendant's quilt or
innocence. We stated:
It is well for attorneys to remember that while in
closing argument, they may argue and comment upon the law
of the case in the instructions, as well as upon the
evidence of the case. . ..
[However, that permission is
limited.] .. .
It is enough to say that in most
instances, it is highly improper for an attorney in final
argument to characterize the testimony of a witness as
lies or the party or a witness himself as a liar.
Mussrove, 178 Mont. at 172, 582 P.2d at 1253, In 1985, subsequent
to the Mussrove case, we adopted the present Rules of Professional
Conduct. As they apply to this particular question, Rule 3.4
provides in part:
A lawyer shall not:
(e) in trial, allude to any matter that the lawyer
does not reasonably believe is relevant or that will not
be supported by admissible evidence, assert personal
knowledge of facts in issue except when testifying as a
witness, or state a personal opinion as to the justness
of a cause, the credibility of a witness, or the...
quilt or innocence of an accused; . . .
(Emphasis
supplied. )
We conclude the Rule stated in Mussrove is as viable under the
new Rules of Professional Conduct as it was under the old Code of
Professional Responsibility. Here, the prosecutor stated his
personal opinion on the credibility of the witnesses as well as the
guilt of the accused. Clearly this is improper.
Because we are reversing on other grounds, we do not find it
necessary to decide whether the statements by the prosecutor were
so prejudicial as to deprive Stewart of a fair trial. However,
because of the concern by all members of the Court with regard to
this type of prejudicial and improper statement, we have carefully
reviewed the closing argument. We recognize this case is somewhat
unusual in that a qreat deal of the evidence submitted by the State
was directly contradicted by evidence submitted by the defense. It
was the task of the jury to determine which testimony and evidence
was the more believable. As a result, it undoubtedly was proper
for the prosecution to comment on the contradictions and conflicts
in the testimony. To that extent, the conduct of the prosecution
was appropriate. However, the prosecution went far beyond the
boundaries of appropriate comments by the prosecution.
Unfortunately this is not the first case to come before the
Court in recent months in which the prosecution has yielded to the
temptation to make unfair and prejudicial comments to a jury. We
direct this comment to all prosecutors: stop the expression of a
personal opinion as to the credibility of a witness or the guilt or
innocence of a defendant.
Reversed and remanded for further proceedings consistent with
this opinion.
We Concur:
-
Chief Justice
June 23, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
DONALD L. SHAFFER
Attorney at Law
502 Main Street
Libby, MT 59923
James H. Goetz
GOETZ, MADDEN & DUNN
35 N. Grand
Bozeman, MT 59715
Martin R. Studer
Attorney at Law
12 N. Third Ave., Suite, 1
Bozeman, MT 59715
HON. MARC RACICOT, Attorney General
Mike Wellenstein, Assistant
Justice Building
Helena, MT 59620
SCOTT B. SPENCER, Lincoln County Attorney
Lincoln County Courthouse
512 California Avenue
Libby, MT 59923
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA