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No. 99-195
IN THE SUPREME COURT OF THE STATE OF MONTANA
2001 MT 47
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MERLIN LaDUE,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable John W. Whelan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office, Helena, Montana
For Respondent:
Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General,
Helena, Montana; Robert McCarthy, Silver Bow County Attorney, Brad Newman and Samm Cox,
Deputy Silver Bow County Attorneys, Butte, Montana
Submitted on Briefs: April 27, 2000
Decided: March 20, 2001
Filed:
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__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 Merlin LaDue (LaDue) appeals from an order entered by Montana's Second Judicial
District Court, Silver Bow County, denying his request to call additional witnesses at trial
for impeachment purposes. LaDue, charged with attempted deliberate homicide, was
found guilty of aggravated assault and now appeals. We affirm the District Court's ruling.
¶2 The issues on appeal are:
¶3 1. Whether the District Court abused its discretion when it denied LaDue's motion to
call additional witnesses after trial had begun.
¶4 2. Whether LaDue's constitutional right to present a defense was violated when the
District Court denied his motion to call additional witnesses.
BACKGROUND
¶5 LaDue, Owen Ah-Mu and Dale Abad had been drinking beer for a number of hours at
LaDue's home in Butte, Montana. They had purchased seven cases of beer for
consumption that day, sharing some of it with acquaintances. After Ah-Mu agreed to pay
LaDue's girlfriend, Carolyn Jacquez, $2 for gas, she drove them to the apartment of
Alipati Taufagu and Rose Lakel. Taufagu and Ah-Mu had been raised together, and
considered themselves brothers. Ah-Mu immediately proceeded to enter the apartment
building without tendering the agreed-upon $2. Alipati observed that LaDue and Abad
were engaged in an altercation, and called it to Ah-Mu's attention. LaDue was attempting
to collect the $2. Ah-Mu returned to the scene and intervened in defense of Abad, who he
claimed was his "best friend."
¶6 The specific details contained in the testimony of the witnesses differ slightly at this
point. No witness claims that Ah-Mu either possessed or brandished a weapon of any kind.
LaDue was observed by several witnesses to have brandished his knife early in the
confrontation, but put it back in his pocket, only to retrieve it a short time later and strike
Ah-Mu in the chest and shoulder area, resulting in life-threatening puncture wounds to Ah-
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Mu. LaDue did not dispute these facts, but claimed he did so in self-defense. Ah-Mu is
approximately 6 feet 2 inches tall and weighed around 250 pounds, while LaDue is
approximately 5 feet 10 inches and weighed around 160 pounds.
¶7 LaDue hurried from the scene with Jacquez in her car, throwing the knife out the
window, and told Jacquez that he thought he had killed Ah-Mu. They traveled to LaDue's
residence, where LaDue proceeded to wash his clothing and shower. When police arrived,
Jacquez told them LaDue had already left, but he was apprehended trying to escape
through a basement window.
¶8 LaDue was charged by information with the offense of attempted deliberate homicide,
a felony in violation of §§ 45-5-102 (1)(a) and 45-4-103 (1), MCA, and pled not guilty.
Pursuant to a plea agreement, the charges were reduced by an amended information to
aggravated assault, to which LaDue pled guilty contingent upon his acceptance to boot
camp at the Montana State Prison (MSP). MSP officials denied his application to boot
camp, and LaDue withdrew his guilty plea to the lesser charge, and was recharged by
amended information with attempted deliberate homicide, and again pled not guilty.
¶9 There was unquestionably some measure of physical contact between the two men.
Different persons testified that Ah-Mu made a statement to the effect, "what about your
knife, bitch?" to LaDue. Debbie Dobb, a nurse and assistant manager of the apartment
complex, who observed much of the sequence of events from her apartment before and
after calling the police, could not hear the verbal confrontation between LaDue and Ah-
Mu. She testified at trial that at one point one man had the other against a fence, and when
she returned from calling police their respective positions had switched. She also testified
that while LaDue was hitting or swinging at Ah-Mu, she did not see Ah-Mu hit or swing at
LaDue. LaDue attempted to elicit contradictions in Dobb's oral testimony versus her
statement to police shortly after the incident. At trial, Dobb stated that Ah-Mu had his
hands "around LaDue's shoulders," while in her statement to police two days following the
stabbing she stated that Ah-Mu was talking to LaDue with a finger in his face.
¶10 Regina Tracy testified following Dobb's testimony. Tracy stated she did not see Ah-
Mu raise his hands or strike at LaDue. On cross-examination, LaDue attempted to point
out an inconsistency in Tracy's statement at trial versus her statement to police
immediately following the altercation, where she had stated that Ah-Mu was pointing in
LaDue's face. She deferred to her earlier statement to police, saying at trial that she simply
couldn't remember that particular fact.
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¶11 Witness Michael Moore, a resident of the complex, observed that Ah-Mu was backing
LaDue down the sidewalk. He did not see Ah-Mu strike or push LaDue, though one hand
was in front of him, but that in his opinion Ah-Mu's actions were aggressive. He then saw
LaDue "hitting like a girl," striking Ah-Mu twice, but he didn't see anything in LaDue's
hand.
¶12 Following Dobb's testimony, but prior to Tracy's testimony, a paralegal for LaDue's
defense counsel overheard Dobb and Tracy discussing the case in the women's restroom
during a break in the trial. Immediately after the break LaDue moved to add his paralegal
to the witness list, along with Carolyn Skinner, the mother of Carolyn Jacquez, who was
the girlfriend of LaDue and the mother of his child. LaDue asserted that Dobb and Tracy
were essentially coordinating their testimony to his disadvantage, and that their testimony
at trial differed substantially from their earlier statements to police. While LaDue made no
attempt to recall Dobb as a witness to inquire about the alleged verbal exchange with
Tracy, LaDue did pose questions regarding the restroom conversation to Tracy in front of
the jury. The court addressed LaDue's request outside the presence of the jury. The State
objected to the testimony of the paralegal, arguing that as an agent of LaDue's counsel,
neither his counsel nor his counsel's agent could testify as a fact witness. The State further
objected to Skinner testifying, as she had been present in the courtroom during the entire
trial, in contrast to all other witnesses, who had been excluded from the courtroom at
LaDue's request. Finally, the State argued that any error that may have resulted from the
exclusion of the two proposed witnesses was harmless. The court denied LaDue's request
to add the additional witnesses, stating that Tracy's and Dobb's testimony was not
substantially different from the statements given police investigators shortly following the
stabbing.
¶13 LaDue was found not guilty of attempted deliberate homicide, but guilty of the lesser
included offense of aggravated assault. He was sentenced to 20 years at MSP, with an
additional 5 years for use of a dangerous weapon. LaDue appeals.
ISSUE 1
¶14 Whether the District Court abused its discretion when it denied LaDue's motion to call
additional witnesses after trial had begun.
¶15 In State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263, we stated:
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The standard of review for evidentiary rulings is whether the district court abused its
discretion. The court has broad discretion to determine whether or not evidence is
relevant and admissible, and absent a showing of an abuse of discretion, the trial
court's determination will not be overturned.
In Gollehon we concluded that the probative value of 20 graphic photos of five murder
victims outweighed the danger of unfair prejudice, and did not arouse jurors' passions any
more than other evidence of Gollehon's conduct, and that the decision of the trial court to
allow the photos into evidence was not an abuse of the court's discretion.
¶16 In the case sub judice, we are in essence asked by LaDue to find that the evidence he
wished to offer through the two additional witnesses was probative in some way. The
record supports the District Court's finding that the testimony of the two additional
witnesses proposed by him was not probative. The differences in their statements to police
and the testimony offered by both witnesses at trial did not result in two substantially
different versions of events, one that implicated LaDue, and one that exonerated him. As a
result, LaDue's contention that Dobb's trial testimony was more prejudicial to him than
was her written statement to police is not meritorious.
¶17 Because their independent statements to police shortly after the stabbing are not
notably inconsistent with their oral testimony at trial, LaDue necessarily infers that they
must have therefore "fixed" their testimony immediately after the incident.
¶18 Nothing in the record supports such an inference; no witness states that they saw
Tracy and Dobb engaged in private or public discussion about fixing their testimony to
LaDue's disadvantage, and the investigating officers make no such reference, nor does
LaDue offer any information to support such a conclusion. In fact, the record shows the
investigating officer testified that he interviewed Dobb and Tracy separately at their
respective places of employment, with no other persons in attendance, and that these
conversations were recorded. With regard to both Tracy and Dobb, their statements to
police shortly after the stabbing, compared to the testimony offered at trial, are quite
similar. Not only was their testimony internally consistent, their testimony was consistent
with the testimony of other witnesses who are not the subject of controversy here.
¶19 Furthermore, LaDue offers not even the most rudimentary discussion regarding a
motive for Dobb and Tracy to "fix" their testimony to his disadvantage. Nor can this Court
discern any nefarious intent from the record. LaDue's statement that "impeachment
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evidence which shows the state's (sic) witness has a motive is compelling" is hardly
compelling given his failure to suggest such a motive let alone support one.
¶20 LaDue concludes his discussion of this issue with a fatally flawed assumption, and
equally flawed conclusion. He asserts that the testimony of witnesses who "stick to their
story" is by definition always false. This is no more accurate than saying that the
testimony of witnesses who stick to their story is by definition always true. While LaDue
failed to recall Dobb to the stand to inquire about such a motive or otherwise cross
examine Dobb about this and other relevant matters, LaDue did question Tracy in front of
the judge and jury after the conversation in the restroom. Neither the judge nor the jury
were persuaded by LaDue's efforts to impeach Tracy, despite the opportunity to view
firsthand the witness and her credibility. The testimony offered by Dobb and Tracy was
not inconsistent with the statements given by them shortly after the stabbing to police, and
was not inconsistent with the testimony of other eyewitnesses. LaDue has not shown good
cause to add the two witnesses after commencement of the trial. The District Court did not
abuse its discretion when it refused to allow the two additional witnesses to testify.
¶21 The court in its ruling stated:
[T]he information was furnished to Counsel prior to these witnesses testifying and
he interrogated the witnesses concerning whether or not they discussed their
testimony with another witness out in the hall, which they admitted they had, and
that their testimony hadn't varied from the written statements that they had given
earlier. . ..(Emphasis added).
¶22 While the record shows it is factually incorrect that LaDue knew of the restroom
incident prior to Dobb's testimony, again he made no effort to recall Dobb to the stand to
try to impeach her, and he made no effort to correct the court. It is correct, however, that
one witness' testimony, Tracy's, occurred immediately after the restroom conversation and
that LaDue was able to question Tracy about the incident in front of the jury. She willingly
admitted the conversation took place, but adamantly denied that she and Dobb had
conspired regarding their testimony.
¶23 We will not put a district court in error for an action to which the appealing party
acquiesced or actively participated. State v. Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, ¶
32, 983 P.2d 881, ¶ 32. Acquiescence in error takes away the right of objecting to it.
Section 1-3-207, MCA. Here, given the court's exclusion of the two additional witnesses
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sought by LaDue, he could have sought to recall Dobb in an attempt to impeach her, but
made no effort to do so. Moreover, he failed to correct the statement of the court wherein
the court appeared to assert that both Tracy and Dobb had been subject to impeachment
regarding the restroom conversation, when only Tracy had been subject to questioning
about the matter. Here, too, we will not place the District Court in error for LaDue's failure
to recall a witness and subsequent acquiescence to the court's ruling.
¶24 In conclusion, the court properly inquired of the nature of the testimony to be offered
by the two proposed witnesses and the circumstances surrounding the matter in
controversy. The court therefore had sufficient information to make its ruling denying
LaDue's request for them to appear before the court. The District Court's ruling was not
erroneous, and the court did not abuse its discretion when it denied LaDue's request to call
two additional witnesses at trial.
Issue 2
¶25 Whether LaDue's constitutional right to present a defense was violated when the
District Court denied his motion to call additional witnesses.
¶26 Section 46-20-104, MCA, states in pertinent part:
(2) Upon appeal from a judgment, the court may review the verdict or decision and
any alleged error objected to which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during trial constitutes a waiver of the
objection except as provided in 46-20-701(2). (Emphasis added.)
¶27 Section 46-20-701, MCA, states in pertinent part:
(1) Whenever the record on appeal contains any order, ruling or proceeding of the
trial court against the convicted person affecting the convicted person's substantial
rights on the appeal of the cause, together with any required objection of the
convicted person, the supreme court on that appeal shall consider the orders, rulings,
or proceedings and the objections thereto and shall reverse or affirm the cause on
the appeal according to the substantial rights of the respective parties, as shown
upon the record. A cause may not be reversed by reason of any error committed by
the trial court against the convicted person unless the record shows that the error
was prejudicial.
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(2) Any error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded. A claim alleging an error affecting jurisdictional or
constitutional rights may not be noticed on appeal if the alleged error was not
objected to as provided in 46-20-104, unless the convicted person establishes that
the error was prejudicial as to the convicted person's guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been
determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence
from the convicted person or the convicted person's attorney that prevented the
claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not
known to the convicted person or the convicted person's attorney and could not have
been ascertained by the exercise of reasonable diligence. (Emphasis added.)
¶28 These statutes make clear that an objection concerning jurisdictional or constitutional
matters must be raised before the trial court, unless specific exceptions apply under § 46-
20-701(2), MCA, and if the objection is not made it will not be heard on appeal. The
exceptions are not applicable in the instant case. The record unequivocally shows that
LaDue did not properly object to the court's ruling excluding the two proposed witnesses.
LaDue's response to the court's ruling through counsel was simply, "Thank you, Your
Honor," and counsel proceeded to immediately call LaDue to the stand. The court had
adjourned for the lunch hour to consider LaDue's request to add the two witnesses. Not
only did the court have this period of time to consider LaDue's request, LaDue had this
same period of time to frame his arguments and concerns and anticipate the implications
of the court's ruling either way, and to formulate any possible objections in an unpressured
environment.
¶29 In addition to requiring a timely objection, we have held that the objection must
specify what authority, rule, statute or constitutional provision might be violated by the
court's decision in order to preserve the issue for appeal; the objector has an obligation to
make the basis for the objection clear to the court so that the district court has an
opportunity to correct itself. State v. Huerta (1997), 285 Mont. 245, 261, 947 P.2d 483,
493.
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¶30 LaDue did not raise at trial the constitutional issue that he raises on appeal, and has
therefore failed to preserve the matter for our review. As he did not raise the issue at trial,
he has waived his right to appeal this issue.
¶31Affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ KARLA M. GRAY
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
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