NO. 94-458
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DUANE STUIT,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstron, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Attorney at Law,
Appellate Defender Office, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Patricia J. Jordan, Assistant Attorney General,
Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana
Submitted on Briefs: May 23, 1996
Decided: July 11, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.
Defendant Duane Stuit appeals from the judgment of the
Thirteenth Judicial District Court, Yellowstone County, adopting
the j U*Y verdi.ct finding him guilty of felony criminal
endangerment. We affirm.
The issues on appeal are as follows:
1. Did the District Court err in permitting the police
officer to testify as to the date of the shooting and the identity
of the shooter based on out-of-court statements made to him by the
mother and the daughter?
2. If the District Court erred in admitting hearsay
testimony, was it harmless error?
FACTS
In late December 1992, a Billings Police Officer was
dispatched to the residence of Duane Stuit to investigate a
disturbance. Stuit lived there with his common-law wife, Sharon
McLain, and her two young children. While the officer was
investigating the disturbance, he observed bullet holes in the wall
and in the door jamb leading to the children's bedroom. The bullet
holes were not the basis for the disturbance complaint which
brought the officer to Stuit's home.
Further investigation revealed that Stuit had, at an earlier
time, fired at least five shots into the wall and approximately
another three shots into the children's door jamb while they were
sleeping. This information was related to the officer primarily by
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Sharon McLain, although the officer apparently also spoke with
Sharon's daughter, Shannon.
Stuit was charged with criminal endangerment as a result of
the shooting incident. The defense attorney filed a motion in
limine requesting that at trial the State be precluded from
eliciting testimony from the officer which was anticipated to
identify Stuit as the shooter based upon statements made to the
officer by others. The State responded that while Sharon was
unavailable for trial, Shannon would testify. The judge inquired
as to whether Shannon would testify first and was assured she
would. The District Court, in ruling on the motion in limine,
stated that it was "an evidentiary matter, [and] if it comes up, it
can be ruled upon during the trial" and therefore refused to grant
the motion.
Although Sharon was unavailable for trial, Shannon did
testify. At trial Shannon testified that she saw Stuit shoot the
gun a maximum of five times from the couch into the wall and then
heard at least three shots after she was in bed. Shannon testified
that this shooting occurred in the month of December, but did not
testify as to the specific date. Over an objection on hearsay
grounds, the police officer testified that the shooting occurred on
or about December 14. The officer also testified that Stuit was
the shooter, but no specific objection was made to this testimony
at trial. Stuit was convicted of criminal endangerment and now
appeals.
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ISSUE 1
Did the District Court err in permitting the police officer to
testify as to the date of the shooting and the identity of the
shooter based on the out-of-court statements made to him by the
mother and the daughter?
Stuit argues that the officer's testimony constituted
inadmissible hearsay and that the lower court abused its discretion
in admitting the testimony. The standard of review for evidentiary
rulings is whether the district court abused its discretion. State
v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313; State v.
Santos (19951, 273 Mont. 125, 137, 902 P.2d 510, 517. Questions of
admissibility of evidence are left to the sound discretion of the
trial court and will not be overturned absent a showing of abuse of
discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.Zd
1257, 1263.
The State argues that Stuit waived his opportunity to appeal
the admission of the officer's testimony identifying the shooter
because the defense counsel failed to object to this question
during direct examination. We have stated that we will not put a
trial court in error where that court has not been given the
opportunity to rule on the admissibility of evidence and to correct
itself. State v. McCord (1992), 251 Mont. 317, 325, 825 P.2d 194,
200.
In this case, Stuit's motion in limine requested that the
District Court exclude the anticipated testimony of the officer
which would identify the shooter based on out-of-court statements
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made to him by others. A motion in limine preserves trial error
for appeal if the motion is sufficiently specific as to the basis
for the objection. See State v. Brown (1984), 209 Mont. 502,
506-07, 680 P.2d 582, 584-85; State v. Weeks (1995), 270 Mont. 63,
85, 891 P.2d 477, 490. This motion was sufficiently specific to
preserve the trial error for appeal and thus the court's admission
of the officer's testimony identifying Stuit as the shooter is
properly before this Court, even though there was no specific
objection at trial. The officer's testimony as to the specific
date of the shooting was admitted over objection at trial and is
also properly preserved for appeal. Section 46-20-701, MCA.
Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted. Rule 801(c), M.R.Evid.
The police officer's testimony at trial as to the identity of the
shooter and the specific date of the offense was admittedly based
on out-of-court statements made to him by Sharon McLain and her
daughter, Shannon. The officer had no personal knowledge of the
alleged incident which had occurred approximately two weeks prior
to his investigation.
The testimony was offered to prove that Stuit had fired a gun
inside his residence thereby making bullet holes in the wall and
the door jamb of the children's room on or about December 14, 1992.
We hold that the officer's testimony regarding the specific date of
the shooting and his testimony as to the identity of the shooter
were hearsay. See State v. Alexander (1994), 265 Mont. 192, 875
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P.2d 345 (testimony by social worker relating what he had been told
by an alleged victim as to the location of the offense constituted
inadmissible hearsay); State v. Camitsch (1981), 192 Mont. 124, 626
P.2d 1250.
The State goes on to argue that the officer's testimony
regarding the specific date of the offense is admissible as an
exception to the hearsay rule pursuant to Rule 804(a) (3),
M.R.Evid., because Shannon was "unavailable" as a result of her
lack of memory on that subject matter. The admission of hearsay
evidence under Rule 804 first requires a determination that the
declarant is "unavailable" under the rule. In re Marriage of
Sarsfield (1983), 206 Mont. 397, 407, 671 P.2d 595, 601. This
determination is a preliminary question of fact for the trial court
to decide. State v. Nielsen (Or. 19931, 853 P.2d 256, 261. The
State had the burden of proving to the trial court by a
preponderance of the evidence that Shannon was unavailable due to
her lack of memory of the specific date of the shooting. Nielsen,
853 P.2d at 261.
Here the State failed to raise the issue of Shannon's
unavailability due to a lack of memory at the trial court level.
It did not ask Shannon if she knew or was able to remember the
specific date of the shooting. It only now attempts to argue that
she would have testified as to a lack of memory. The admission of
the officer's testimony as to the date of the shooting as a hearsay
exception because of Shannon's unavailability is therefore being
raised for the first time on appeal and is inappropriate for
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consideration by this Court. Fandrich v. Capital Ford Lincoln
Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16.
We hold that the testimony of the officer as to the identity
of the shooter and the specific date on which the shots were fired
was inadmissible hearsay and the District Court erred in admitting
this testimony.
ISSUE 2
If the District Court erred in admitting hearsay testimony,
was it harmless error?
The admission of the hearsay testimony by the officer does not
automatically entitle Stuit to have his conviction reversed. See
Rilev, 893 P.2d at 313. Section 46-20-701(l), MCA, provides that
"[n]o cause shall be reversed by reason of any error committed by
the trial court against the appellant [convicted person] unless the
record shows that the error was prejudicial."
Stuit argues that the admission of the officer's hearsay
testimony was prejudicial as it identified him as the shooter and
specified the date of the incident. Stuit's defense was that
someone else had committed the offense and that it occurred early
in December when there were other individuals living in the house.
He testified that he had himself discovered the bullet holes on
December 10, 1992, the same date the individuals departed from the
house. Stuit asserts that the admission of the officer's testimony
further prejudiced him because credibility was a key issue at trial
as Shannon was the only witness who testified from personal
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knowledge of the incident. He argues that the officer's testimony
was used to resolve questions of credibility in favor of Shannon.
We have previously held that in a criminal case "if prejudice
is alleged, it will not be presumed but must be established from
the record that a substantial right was denied." State v. Wells
(1983), 202 Mont. 337, 349, 658 P.2d 381, 388. The test of
prejudicial error is whether "beyond a reasonable doubt the error
did not affect the outcome of the trial." State v. Alexander
(1994) I 265 Mont. 192, 198, 875 P.2d 345, 349 (citing Chapman v.
California (1967), 386 U.S. 18, 26, 87 S. Ct. 824, 829, 17
L. Ed. 2d 705, 711, reh's denied (1967), 386 U.S. 987, 87 S. Ct.
1283, 18 L. Ed. 2d 241).
Shannon testified the offense occurred in the month of
December 1992. She further testified that she was sitting on the
couch with her mother and Stuit when he shot the rifle five times
into the wall. Thus, Shannon testified from personal observation
as to the shooting, the identity of the shooter, and the
approximate date. The admissible testimony from the officer that
there were at least seven bullet holes in the wall and door jamb,
and that from his experience the five bullet holes in the wall
could have been made from someone sitting on the couch in the
living room, corroborated her testimony. He also testified that he
had recovered a .22 rifle from the bedroom Sharon and Stuit had
shared. From Shannon's testimony as to her personal observations
and the admissible corroborating testimony of the officer, the
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the specific date was irrelevant and harmless as there was
sufficient evidence, beyond reasonable doubt, upon which the jury
could properly convict absent this testimony.
Cumulative evidence is additional evidence of the same
character to the same point. Section 26-l-102(4), MCA. The
officer's testimony as to the identity of the shooter after
Shannon's testimony was merely cumulative and thus harmless. See
State v. Graves (1995), 272 Mont. 451, 901 P.2d 549; State v. Kao
(1990), 245 Mont. 263, 800 P.2d 714; State v. Woods (19861, 221
Mont. 17, 716 P.:!d 624.
We hold therefore that the admission of the officer's hearsay
testimony that Stuit had committed the offense and that it occurred
on a specific date did not result in prejudice to Stuit and was
therefore harmless error.
Affirmed.
Justice
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