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No. 98-354
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 277
STATE OF MONTANA,
Plaintiff and Respondent,
v.
RICHARD LANCE GOWAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David M. Ortley, Kalispell, Montana; Todd D. Glazier, Kalispell, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, Carol Schmidt, Assistant Montana
Attorney General, Helena, Montana; Thomas J. Esch, Flathead County Attorney, Edward
J. Corrigan, Deputy Flathead County Attorney, Kalispell, Montana
Submitted on Briefs: June 1, 2000
Decided: November 2, 200
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Filed:
__________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
¶1 Defendant, Richard Lance Gowan (Gowan), appeals from a jury verdict in the Eleventh
Judicial District Court, Flathead County, finding him guilty of two counts of criminal sale
of dangerous drugs. We reverse and remand for a new trial.
¶2 The dispositive issue on appeal can be restated as follows:
Did the District Court err in holding that a defense witness' gratuitous statement, offered in
response to the State's cross-examination, opened the door for rebuttal character evidence?
FACTUAL BACKGROUND
¶3 On October 21, 1997, Gowan was charged by information with two counts of
criminal sale of dangerous drugs, both felonies. At his arraignment, Gowan pled not
guilty to both counts. On November 17, 1997, the District Court executed a
preprinted form entitled Action Taken at Omnibus Hearing. In that form the State
indicated that it would not rely upon Gowan's prior acts or convictions. Gowan
indicated his intent to rely upon the defense of entrapment.
¶4 A jury trial was held on March 2-3, 1998. After opening statements, the parties again
met with the District Court to discuss the admissibility of Gowan's prior perjury
conviction and what evidence, if any, would be admissible should Gowan choose to
testify. The District Court ruled that while direct evidence of a prior conviction was not
admissible, the State would be permitted to ask Gowan, in the event he testified, only if he
had lied under oath in the past. Once again, the District Court clarified that the State was
not to make references to Gowan's prior convictions.
¶5 At trial, Gowan called his girl friend, Kris McPherson (McPherson), as a witness. She
was not designated as a character witness and on direct-examination McPherson offered
no character testimony. On cross-examination, however, the following transpired:
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[Prosecutor]
Q. Why didn't you tell him to go to the police, instead of selling drugs, to get the
title to your car?
[McPherson]
A. Because I didn't tell him to sell drugs to get the title to the car. I actually told him
the guy's melon - -
(court reporter stops proceedings)
A. Sorry. And then it wasn't until after everything had went down that I found out - -
I never knew Paul's last name. I'm in the car business, so I deal with all the car
dealers in town. He had just told me about some car from Paul, paid him in full, and
he hadn't got a title yet. And I couldn't believe he'd do that, but he's a very honest
and trusting person.
Q. Who's honest and trusting?
A. Lance.
Q. Lance is honest?
A. Yes. He trusted Mr. Southwick with the title.
Q. What do you base that comment on, him being honest? Come on, Ms.
McPherson.
A. I don't know what you're getting at, Mr. Corrigan.
Q. Lance isn't honest.
[Defense Counsel]
Mr. Musick: Objection, your honor.
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¶6 After argument of counsels, the District Court ruled that in light of our decision in State
v. Austad (1982), 197 Mont. 70, 641 P.2d 1373, and under Rules 404(a)(1) and 405(a), M.
R.Evid., that McPherson had offered character evidence. Therefore, the District Court
concluded that McPherson had opened the door to character evidence, even though her
testimony was in response to cross-examination. The State was allowed to inquire if
McPherson was aware that Gowan had been convicted of perjury. The State also made
references to Gowan being on probation and being sued for failure to deliver a title.
¶7 The jury found Gowan guilty of both counts of criminal sale of dangerous drugs.
Gowan filed an application for review of his sentence with the Sentence Review Division
of the Montana Supreme Court. After they carefully considered Gowan's application, the
board affirmed his sentence with the modification that one year be suspended on count I.
¶8 On May 19, 1998, Gowan, acting pro se, filed a notice of appeal with the Clerk of the
Montana Supreme Court, which was subsequently filed with the Clerk of the District
Court, Flathead County, on May 28, 1998. The District Court also granted Gowan's
request for the appointment of counsel and his request to proceed in forma pauperis.
Gowan now appeals his conviction to this Court.
STANDARD OF REVIEW
¶9 We review a district court's evidentiary rulings for an abuse of discretion. State v.
MacKinnon, 1998 MT 78, ¶ 12, 288 Mont. 329, ¶ 12, 957 P.2d 23, ¶ 12 (not an abuse of
discretion to prohibit cross-examination of the victim's mother about prior unrelated
incidents of sexual assault). A district court is granted broad discretion to determine
whether evidence is relevant and admissible. MacKinnon, ¶ 12. If evidence has been
improperly admitted, however, we will find reversible error based on prejudice to the
defendant where there is a reasonable probability that the inadmissible evidence might
have contributed to the conviction. State v. Berger, 1998 MT 170, ¶ 39, 290 Mont. 78, ¶
39, 964 P.2d 725, ¶ 39 (not an abuse of discretion to allow questions during redirect-
examination about why the witness moved from town in order to give a complete
impression. The jury is entitled to a complete explanation, even if that explanation reflects
poorly upon the defendant.).
DISCUSSION
¶10 Did the District Court err in holding that a defense witness' gratuitous statement,
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offered in response to the State's cross-examination opened the door for rebuttal
character evidence?
¶11 This issue requires us to address, for the first time, whether a gratuitous character
statement made by a defense witness while being cross-examined by the State "opens the
door" to rebuttal character evidence. We conclude that although a defendant can open the
door with statements made during either direct or cross-examination, and a defense
witness can open the door on direct-examination, a defense witness cannot inadvertently
open the door on cross-examination. Under Rule 404(a)(1), M.R.Evid., only the accused
can "open the door" for the prosecution to introduce rebuttal character evidence.
¶12 Gowan argues that the District Court abused its discretion by allowing evidence of his
perjury conviction in violation of its own pretrial order. He claims that this was inherently
prejudicial, because he did not have the opportunity to adequately prepare for admission of
this evidence. He alleges that he made critical decisions regarding both voir dire and trial
strategy in reliance upon the District Court's pretrial order. Gowan cites State v. Doll
(1985), 214 Mont. 390, 396-97, 692 P.2d 473, 476; and State v. Howell (1987), 226 Mont.
148, 152, 734 P.2d 214, 217, in support of this argument.
¶13 Gowan concedes that the State can enter rebuttal evidence of bad character if a
defendant opens the door by first entering evidence of good character. He, however,
argues that a non-character defense witness cannot place a defendant's character at issue
with statements made in response to the State's cross-examination, because only the
defendant can place his character at issue and thus open the door for the State's rebuttal.
Gowan argues that his situation is distinguishable from Austad. He points out that in
Austad, the accused himself made unnecessary, self-serving statements which he knew to
be untrue. While in his case his witness inadvertently commented that he was honest and
trusting in explaining how he could have been duped by the State's informant.
¶14 Gowan argues that his case is closer to State v. Webb (1992), 252 Mont. 248, 255, 828
P.2d 1351, 1356; and State v. Harris (1991), 247 Mont. 405, 410, 808 P.2d 453, 456. In
those cases we held that it was improper for the State to open its own door so it could then
enter evidence of good character to rehabilitate its own witness. Gowan claims that
allowing a witness to open the door on cross-examination would discourage defendants,
with a criminal history, from calling witnesses who could provide crucial testimony about
a limited aspect or element of the alleged crime. He further asserts that in virtually every
case, the State could devise some strategy to elicit character testimony from a witness and
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open the door to present impeachment evidence or rebuttal testimony of bad character. On
cross- examination, the State is in control of the witness and able to substantially prejudice
the defendant with one question.
¶15 The State counters that the District Court did not abuse its discretion when it allowed
the State to cross-examine a defense witness regarding Gowan's prior perjury conviction
after the witness testified that Gowan was honest. The State claims that Rules 404(a) and
405(a), M.R.Evid., allow the State to inquire into relevant specific instances of conduct
once the defense offers a pertinent trait of the defendant's character. The State argues that
this also applies to statements made by defense witnesses on cross-examination.
¶16 The State argues that this case is similar to Austad. In that case the defendant
answered a cross-examination question with an unnecessary, self-serving statement. Here,
the witness testified that Gowan was honest when the State cross-examined her. The State
asserts that her answer was an unnecessary, self-serving statement which, as further
questioning revealed, she knew to be untrue, but which obviously placed Gowan in a
better light with the jury. Therefore, she opened the door to Gowan's character by
testifying that he was honest.
¶17 The State attempts to lend credence to this argument by saying that once the statement
was made it was necessary to counter it's effect on the jury. In support, the State cites "[t]
he right of cross-examination extends not only to all facts stated by the witness in his
original examination, but to all other facts connected with them, whether directly or
indirectly, which tend to enlighten the jury upon the question in controversy. . . . As a
general rule, in the interests of truth and justice, a wide latitude should be permitted, in the
cross-examination of an adverse witness; or as otherwise stated, a full cross-examination
should be permitted." State v. McKnight (1955), 129 Mont. 8, 20, 281 P.2d 816, 822
(citing State v. Howard (1904), 30 Mont. 518, 527, 77 P. 50, 54 and 70 C.J., Witnesses, §
792 at 619) overruled on other grounds by State v. Wirtanen (1965), 146 Mont. 268, 406
P.2d 376.
¶18 The right to a full cross-examination of a defendant's character traits, once placed at
issue, is not limitless. State v. Eklund (1994), 264 Mont. 420, 430, 872 P.2d 323, 329 (it
was reversible error for the State to cross-examine defendant's character witness about the
defendant's prior murder charges to rebut his nonviolent character evidence); State v.
Heine (1976), 169 Mont. 25, 29, 544 P.2d 1212, 1214 ("the accused's entire life should not
be searched in an effort to convict him."). Further, where the defendant has not opened the
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door regarding a pertinent character trait, the State is not allowed to inquire on cross-
examination into relevant, specific instances of conduct. Rule 404(a), M.R.Evid.; United
States v. Park (5th Cir. 1976), 525 F.2d 1279, 1283 (where the prosecution elicited
testimony from two witnesses that was beyond the scope of direct-examination). Unless
and until the accused places his character at issue, the door is closed for the State to enter
evidence of a defendant's character because the dangers of prejudice, confusion, and time-
consumption outweigh the probative value. see, 1 John W. Strong et al., McCormick on
Evidence § 190, at 658-59 (5th ed. 1999).
¶19 Generally, a defendant's character or character trait is not admissible in criminal cases
to prove that the defendant acted in conformity with that trait. Rule 404(a), M.R.Evid.
"The inquiry is not rejected because character is irrelevant; on the contrary, it is said to
weigh too much with the jury and to so overpersuade [sic] them as to prejudge one with a
bad general record and deny him a fair opportunity to defend against a particular charge."
Michelson v. United States (1948), 335 U.S. 469, 475-76. In other words, persons of bad
character are more likely to commit crimes than are persons of good character, but the law
fears that a defendant will be convicted merely because he is an unsavory person.
¶20 The various justifications for this general rule are reducible to three: (1) the strong
tendency to believe a defendant is guilty of the offense charged merely because he is a
likely person to do such acts because of his distasteful propensities; (2) the deep tendency
of human nature to condemn, not because a defendant is guilty of the offense charged, but
because he is a bad person who has escaped punishment from past transgressions and may
as well be punished now that he is caught; and (3) the overwhelming burden of requiring a
defendant to not only defend against the offense charged but also allegations of bad
conduct from his whole past. 1A Wigmore, Evidence § 58.2, at 1215 (Tiller rev. 1983). Or
put simply, character evidence is excluded to prevent undue prejudice, confusion of issues,
and unfair surprise.
¶21 Justice Jackson rightfully described the law regarding proof of a criminal defendant's
character as "archaic, paradoxical and full of compromises and compensations by which
an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the
other." Michelson, 335 U.S. at 486. It extends "helpful but illogical options to a defendant"
but then balances these with "equally illogical conditions to keep the advantage from
becoming an unfair and unreasonable one." Michelson, 335 U.S. at 478-79. Even saying
that the defendant placed his character at issue is misleading. The defendant's character
does not become an element of the offense. Rather, the defendant is attempting to prove
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his innocence through circumstantial evidence. Likewise, the State attempts to establish
that the defendant's bad propensities make his guilt of the charged crime more probable.
¶22 Because character evidence is relevant in resolving probabilities of guilt, however, the
law allows a defendant to introduce evidence of his good character. Rule 404(a)(1), M.R.
Evid.; see, 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 101, at
544 (2nd ed. 1994). "He may introduce affirmative testimony that the general estimate of
his character is so favorable that the jury may infer that he would not be likely to commit
the offense charged." Michelson, 335 U.S. at 476. But in doing so, he may be opening the
door to irresponsible gossip, innuendo and smear.
¶23 Once the door is opened, the State may introduce rebuttal evidence of its version of
the defendant's true character. Rule 404(a)(1), M.R.Evid; State v. Baker (1991), 249 Mont.
156, 159, 815 P.2d 587, 589. The State may accomplish this by either cross-examining the
defendant's character witness or by calling rebuttal witnesses of its own. Rule 405(a), M.R.
Evid; State v. D.B.S. (1985), 216 Mont. 234, 245-46, 700 P.2d 630, 637-38 (cross-
examining a character witness) overruled on other grounds by State v. Olson (1997), 286
Mont. 364, 951 P.2d 571; State v. Anderson (1984), 211 Mont. 272, 292, 686 P.2d 193,
204 (use of a rebuttal witness). In establishing bad character, the State may enter evidence
of both reputation and opinion. State v. Clark (1984), 209 Mont. 473, 489, 682 P.2d 1339,
1348. "[I]t is not the man that he is, but the name that he has which is put in issue."
Michelson, 335 U.S. at 479. For these reasons, only the defendant is allowed to make the
precarious decision to put character at issue.
¶24 We have held that a defendant put his character at issue by answering a question on
cross-examination with an unnecessary, self-serving statement which he knew to be
untrue, intended to place him in a better light with the jury. In that situation, the door is
open for the prosecution to rebut this gratuitous character testimony by the defendant.
Austad, 197 Mont. at 90, 641 P.2d at 1384. We concluded that "[t]he Rules of Evidence
were not intended to muzzle the State against [a] defendant's deliberate attempts to
mislead jury members by lying to them in answering specific question." Austad, 197
Mont. at 90, 641 P.2d at 1384. The case at bar, however, involves statements that the
defendant had no control over.
¶25 Here, Gowan's witness offered no character testimony on direct-examination. On
cross-examination, however, this defense witness gave a non-responsive answer which
contained a gratuitous good character statement about Gowan. She said "but he's a very
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honest and trusting person." The State should have requested that the witness confine her
answers to the questions asked, and requested that her statement be stricken from the
record. Instead the State pounced on this opportunity to introduce evidence of bad
character. The District Court, relying on our decision in Austad, concluded that this
opened the door for the State to pursue rebuttal character evidence. We disagree.
¶26 The facts here are distinguishable from those of Austad. In Austad, the defendant
opened the door with his own statements. Something he had total control over. He
attempted to enter testimony of his good character and he paid the price. Gowan,
conversely, had no control over what his witness said while being cross-examined by the
State. The State cannot elect to convert a defense witness, who has neither been called as a
character witness nor testified of good character on direct-examination, into a character
witness. 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence §
404.11[2][b], at 404-25 (Joseph M. McLaughlin ed., 2nd ed. 2000). Because of the deep
tendency of human nature to give evidence of bad character much weight in assigning
guilt, only the accused are allowed to open that door.
¶27 Since only a defendant can open the door to rebuttal character evidence, the District
Court erred in holding that a defense witness could in a statement made during cross-
examination. Something Gowan had no control over. Because this issue is dispositive, we
need not address the other issues Gowan raises.
¶28 Gowan's conviction is reversed and his case is remanded for a new trial.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER
Justice James C. Nelson dissents.
¶29 In this case the majority announce a new rule of criminal procedure. Hereafter, if, in a
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criminal trial, a defense witness, on cross-examination, gratuitously testifies or answers in
a non-responsive manner and in so doing vouches for the defendant's good character when
the defendant has not otherwise placed his character in issue, the prosecution must stand
mute. The State may not cross-examine further regarding the witness's character testimony
and the State may not offer rebuttal character testimony. Rather, the State may only
request the court to direct the witness to confine her answers to the questions asked and
request that the offending statements be stricken from the record.
¶30 The majority's articulation and adoption of this new rule suffers from a fundamental
flaw. There is no legal authority to support it.
¶31 The majority start with the statement at ¶ 11, that "[u]nder Rule 404(a)(1), M.R.Evid.,
only the accused can 'open the door' for the prosecution to introduce rebuttal character
evidence." Actually, Rule 404(a)(1), provides:
(a) Character evidence generally. Evidence of a person's character or a trait of
character is not admissible for the purpose of proving action in conformity therewith
on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an
accused, or by the prosecution to rebut the same.
The plain language of the Rule allows the State to rebut evidence of a pertinent trait of
character offered by an accused. The Rule itself places no limitations on how
(intentionally or inadvertently) or when (on direct examination or on cross-examination)
the accused puts his character in issue. Moreover, the Rule does not restrict the accused
from putting his character in issue through his own witness. Indeed, as here, should the
accused put his character at issue through the statements of his witness on cross-
examination, then the plain language of Rule 404(a)(1) allows the State to question and to
rebut that evidence. The majority improperly read into the Rule limitations and restrictions
that are simply not there. See § 1-2-101, MCA (office of the judge is simply to ascertain
and declare what is in terms or in substance contained in a statute--not to insert what has
been omitted or to omit what has be inserted).
¶32 Next, the majority cite various cases in support of its creative interpretation of Rule
404(a)(1). Again, however, the cited authorities fail to support the Court's decision. In
State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, there was no Rule 404(a)(1) issue at
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all and no claim that the State improperly put the defendant's character at issue. Harris
involved but three issues: whether the State's expert witness improperly commented on the
credibility of an alleged victim who testified at trial (Harris, 252 Mont. at 407, 808 P.2d at
454); whether the trial court erred in allowing the State's expert to identify the defendant
as the perpetrator by allowing the expert to testify as to hearsay statements made by the
alleged victims during therapy (Harris, 252 Mont. at 408, 808 P.2d at 454); and whether
the district court erred in granting the jury's request to have the alleged victim's testimony
read during deliberations (Harris, 247 Mont at 408, 808 P.2d at 454). Not only was the
factual underpinning for the legal issues framed in Harris entirely different from that in
the instant case, but, more importantly, Rule 404(a)(1) and the defendant's character were
never at issue at all. In fact, Rule 404(a)(1) is never even mentioned in the Harris opinion.
¶33 Likewise, in State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351, there was no issue
involving the prosecutor improperly placing the defendant's character in issue. Webb, 252
Mont. at 250-51, 828 P.2d at 1353. The only even remotely similar issue involved the
State's attack on the character of a defense witness and its violation of Rule 608(a), M.R.
Evid. Webb, 252 Mont. at 255-57, 828 P.2d at 1355-57. Citing Harris, we condemned the
State for opening the door for opinion testimony regarding the witness's veracity and then
attacking the witness's character. Webb, 252 Mont. at 256-57, 828 P.2d at 356-57.
¶34 That, of course, did not happen in the case at bar. Here, the prosecutor did not open
the door to the defendant's character. Rather, Gowan's own witness, McPherson, through
her gratuitous, non-responsive and perjurious answer to the State's proper cross-
examination put his character in issue. Under the applicable rule, Rule 404(a)(1), the
prosecution was entitled to rebut this evidence.
¶35 Obviously, neither Harris nor Webb support the majority's rationale.
¶36 Moreover, while Gowan argues these cases for the proposition that "in virtually every
case the State could devise some strategy to elicit character testimony from a witness and
open the door to present impeachment evidence or rebuttal testimony of bad character" it
is undisputed that that is not the fact situation presented in the instant case. There is not
one scintilla of evidence in the record that the prosecution devised any strategy to elicit or
to open the door to the testimony that McPherson offered. Again, Gowan's witness took it
upon herself to gratuitously bolster his character by presenting testimony known to be
untrue through a non-responsive answer to the State's legitimate cross-examination
questions.
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¶37 Indeed, in "pouncing" on Gowan's paranoid speculation as to the potential for
machinations of character evidence by the State, the majority create an equally untenable
situation. Now, in virtually every case, the defendant can devise some strategy to elicit
favorable character testimony from his witness during cross-examination knowing that the
State will not be able to rebut the evidence once it is placed before the jury. To the extent
they apply at all, Webb and Harris already protect a defendant from the very sort of
improper conduct that is of concern to Gowan. These cases do not, however, support the
new rule created by the majority from whole cloth in the case sub judice.
¶38 Similarly, United States v. Park (5th Cir. 1976), 525 F.2d 1279, is inapposite. There
the court determined that the prosecution's cross-examination of the witness was "not only
beyond the scope of direct examination [but was] also irrelevant to the issues before the
court, improper, and highly prejudicial." Park, 525 F.2d at 1283. Again, that is not what
happened in Gowan's trial. Here the State was properly cross-examining Gowan's witness
and she put in the good character testimony by an unresponsive and knowingly untruthful
answer to the State's question. Under this fact scenario, Park is contra to the majority's
holding in allowing the examiner to rebut improper testimony offered by the witness.
The restrictive rule [prohibiting cross-examination from exceeding the scope of
direct examination] does not foreclose inquiries designed to impeach a witness, by,
for example, attacking his reliability and credibility.
Park, 525 P.2d at 1283.
¶39 State v. Eklund (1994), 264 Mont. 420, 872 P.2d 323, is not on point either. In that
case we reversed based on the State attacking the defendant's good character evidence by
cross-examination of a defense witness with information that the defendant had been
charged with murder when, in fact, he had only been convicted of manslaughter. Eklund,
264 Mont. at 429-30, 872 P.2d at 328-29. We did not prohibit the State from rebutting
knowingly untruthful good character evidence gratuitously offered by a defense witness.
That was not even an issue.
¶40 State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212, also cited by the majority,
likewise does not buttress its rationale. There, the issue was the remoteness of the
prosecution's impeachment evidence as to the defendant's good character. We concluded
that the impeachment offered was not too remote--i.e., not an improper search of the
defendant's entire life in an effort to convict him. Heine, 169 Mont. at 29, 544 P.2d at
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1214. Of course, there was no "searching of the defendant's entire life" by the State's cross-
examination of McPherson in the instant case.
¶41 More importantly, however, in Heine we adhered to the rule that the majority ignore
in the case at bar.
When the accused calls a witness to support his generally good reputation in the
community, he opens the door to all legitimate cross-examination of that witness and must
therefore accept the consequences which result.
Heine, 169 Mont. at 28, 544 P.2d at 1214 (citations omitted).
¶42 Again, neither Park, Eklund nor Heine can be legitimately cited as justification for the
majority's unprecedented, court-created rule of evidence in the present case.
¶43 In like fashion, the Court's discussion commencing at ¶¶ 19-22 is simply a red herring.
No one disputes the good reasons for normally not allowing evidence of bad character.
That, however, is not the issue. Here, the State did not first put the defendant's character in
issue by offering adverse character evidence. Rather, Gowan's claim of good character was
first injected into the trial by his witness. His witness "opened the door" via her untruthful,
gratuitous and non-responsive answer to the prosecutor's question. Once the door is
opened, Rule 404(a)(1) allows, as it should, the State to rebut that evidence (the majority's
misreading of the Rule to the contrary) as do Montana's cases cited at ¶ 23 of the majority
opinion. There is, however, nothing in these authorities supporting the Court's statement
that "only the defendant is allowed to make the precarious decision to put character at
issue."
¶44 Finally, I note that in our case law, we repeatedly emphasize those aspects of trial
practice and procedure which enhance the "search for truth." See, e.g., State v. Waters
(1987), 228 Mont. 490, 495, 743 P.2d 617, 620 (the purpose of Montana's discovery
scheme is to enhance the search for truth); State v. Dezeeuw, 1999 MT 331, ¶ 16, 297
Mont. 379, ¶ 16, 992 P.2d 1276, ¶ 16 (holding that the trial court's exclusion of
defendant's eyewitness to the altercation, when his only defense was self-defense,
hindered the search for truth and therefore was an abuse of the court's discretion); Billings
Leasing Co. v. Payne (1978), 176 Mont. 217, 225, 577 P.2d 386, 390-91 (quoting from
Wright & Miller that it is the "inescapable duty of the trial judge to instruct the jurors,
fully and correctly, on the applicable law of the case, and to guide, direct, and assist them
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toward an intelligent understanding of the legal and factual issues involved in their search
for truth"); State v. Jones (1996), 278 Mont. 121, 128, 923 P.2d 560, 564 (counsel's duties
of loyalty and confidentiality are compatible with the search for truth).
¶45 Frankly, I am hard pressed to understand how the "search for truth" is advanced by a
rule which requires the State's counsel to stand like a deer in the headlights after the
defendant's own witness, through no misconduct of the prosecutor, perjuriously misleads
the jury as to the defendant's character during the State's proper cross-examination of the
witness. The majority's new rule is not only without any underpinning legal authority, it is
patently unfair. It protects no one but liars.
¶46 I can find no abuse of discretion in the trial court's ruling that the defendant's witness,
McPherson, offered character testimony which the State was entitled to rebut. I would
affirm Gowan's conviction. I dissent from our failure to do so.
/S/ JAMES C. NELSON
Chief Justice J. A. Turnage and Justice Karla M. Gray concur in the foregoing dissent.
/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
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