No. 12830
I N T E SUPREME C U T O T E STATE OF M N A A
H OR F H OTN
1975
T E STATE OF M N A A
H OTN,
P l a i n t i f f and Respondent,
-vs -
L L SMITH, a /k/a L L MATTE,
UU UU
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
Honorable James D. Freebourn, Judge p r e s i d i n g .
Counsel of Record :
For Appellant :
Mark P. S u l l i v a n argued, B u t t e , Montana
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
John F. North, A s s i s t a n t Attorney General, argued,
Helena, Montana
Gary Winston, County Attorney, appeared, B u t t e ,
Montana
Submitted: September 1 2 , 1975
Decided : c-p fi 43,J
9
?- r--. L- 9 .r -p $,
=
Filed :
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
This is an appeal by defendant, Lulu Smith, from a judg-
ment of conviction of the crime of manslaughter entered in the
district court, Silver Bow County.
On April 14, 1973, the Parker Singers, an Indian singing
group, including Martin Standing Rock and three of his relatives,
left the Rocky Boy Reservation, near Havre, and journeyed to
Butte to perform at a Pow Wow. After the Pow Wow, the men went
to a Butte bar where they met several Indian women from Butte,
including defendant, and were invited to a party at the home of
one of the women. After a night of partying and drinking, an
altercation took place about dawn, ending with the men and women
arguing and fighting outside in the street. The result of this
altercation was one man with a stab wound in the leg and another,
Martin Standing Rock, dead from a stab wound in the chest.
The defendant was charged with manslaughter and entered
a plea of self-defense to the charge. About an hour after the
act, defendant gave a statement to the county attorney. At a
later date she testified she was intoxicated, shaken and in shock
at the time of this statement.
At the trial, the State's witnesses testified the de-
ceased had not provoked the attack. Defendant contradicted this
testimony, claiming that due to the size and drunken condition
of the deceased, she was doing what she had to do to defend her-
self.
The jury returned a verdict of guilty and defendant re-
ceived a five year sentence, with three years suspended, from
which she now appeals.
On appeal defendant contends: (1) that the district court
improperly allowed the State to impeach her testimony by means
of a prior inconsistent statement taken shortly after the stabbing;
(2) that the district court erred in allowing the State to im-
peach the testimony of a 15 year old witness with prior incon-
sistent statements; and (3) the propriety of the district court
in refusing to give defendant's proposed instruction on self-
defense was questioned.
In the course of the trial, as part of the State's cross-
examination of defendant, the prosecutor referred to statements
made by the defendant while being questioned by the county attor-
ney about an hour after the incident. Defendant argues the court
improperly allowed the State to introduce these prior inconsistent
statements because the State failed to show the statements were
voluntary. Defendant alleges the statements were not voluntary
because she was intoxicated and in a state of shock at the time
of making the statements. She also contends that she did not
voluntarily waive her Miranda rights before giving the statements.
This Court has stated that it is unnecessary to establish
a foundation of voluntariness for a prior inconsistent statement
if the statement is being introduced only to impeach the witness
and is not entered as substantive evidence in the State's case
in chief. State v. Quilliam, 108 Mont. 68, 88 P.2d 53. In
Quilliam at pages 72-73 this Court held:
" * * * The statement here, sufficient as a con-
fession, was introduced, not as a confession but
for the purpose of laying a foundation for impeach-
ing the witness. For that purpose the same founda-
tion need not be laid as in the case where a state-
ment is introduced as a confession. We need not
decide here the question of inducement, as for the
purpose of impeachment the statement would be ad-
missible even though it were based on such induce-
ment as would make it inadmissible as a confession."
See also, Curry v. United States, (2nd Cir.) 358 F.2d 904,
cert. den. 385 U.S. 873, 17 L Ed 2d 100, 87 S.Ct. 147; State
v. Osbey, 213 Kan. 564, 517 P.2d 141; Small v. State, (Tex.
The sufficient foundation for the introduction of prior
inconsistent statements for impeachment purposes is set forth
in section 93-1901-12, R.C.M. 1947, as follows:
"A witness may also be impeached by evidence
that he has made, at other times, statements in-
consistent with his present testimony; but before
this can be done the statements must be related
to him, with the circumstances of times, places,
and persons present, and he must be asked whether
he made such statements, and if so, allowed to
explain them. * * * "
This Court, in interpreting the predecessor statute
(section 8025, R.C.M. 1907) stated in State v. Gaimos, 53 Mont.
"Our statute * * * prescribes that before a witness
can be contradicted as to statements made, the
circumstances of time, place, persons present and
language used must be mentioned to the witness
sought to be impeached * * *."
See also, Spurgeon v. Imperial Elevator Co., 99 Mont. 432, 43
As stated in the last clause of section 93-1901-12, the
witness is allowed to explain the prior statements so as to pre-
vent injustice by giving him or her an opportunity to explain the
apparent inconsistency. State v. Board, 135 Mont. 139, 337 P.2d
924; State v. Heaston, 109 Mont. 303, 97 P.2d 330; State v. Keays,
97 Mont. 404, 34 P.2d 855.
The record shows that the State followed the requirements
of section 93-1901-12 providing sufficient foundation for intro-
ducing the prior inconsistent statements.
Once the prior inconsistent statements are properly in-
troduced into evidence, this Court has said in State v. Peterson,
102 Mont. 495, 499, 59 P.2d 61:
" * * * the extent to which impeaching evidence
impaired the credibility of a witness assailed
is a question exclusively for the jury." * * *
See also, Batchoff v. Craney, 119 Mont. 157, 172 P.2d 308; State
v. Duncan, 82 Mont. 170, 266 P. 400.
Defendant also contends her prior statements are
inadmissible because she had not waived her right to counsel
before giving the statements. In two recent cases, the United
States Supreme Court has held that prior inconsistent state-
ments which are inadmissible in the prosecution's case in chief,
due to failures under the Miranda rules, are admissible to im-
peach the defendant's credibility on matters not collateral to
the issues of the case. In Harris v. New York, 401 U.S. 222,
28 L Ed 2d 1, 4, 5, 91 S.Ct. 643, Chief Justice Burger stated:
" * * * The impeachment process here undoubtedly
provided valuable aid to the jury in assessing
petitioner's credibility, and the benefits of
this process should not be lost, in our view,
because of the speculative possibility that im-
permissible police conduct will be encouraged
thereby. Assuming that the exclusionary rule
has a deterent effect on proscribed police con-
duct, sufficient deterrence flows when the evi-
dence in question is made unavailable to the
prosecution in its case in chief."
The Chief Justice went on to say:
"The shield provided by Miranda cannot be perverted
into a license to use perjury by way of a defense,
free from the risk of confrontation with prior
inconsistent utterances."
In Oregon v. Hass, U.S. , 43 L Ed 2d 570, 95 S.Ct. I
Mr. Justice Blackmun reaffirmed the language in Harris and stated:
"We are, after all, always engaged in a search
for truth in a criminal case so long as the search
is surrounded with the safeguards provided by our
Constitution. * * * "
We find the prior inconsistent statements were properly admitted
at the trial.
The defendant contends the district court erred in not
submitting the entire prior statement to the jury.
As a general rule:
"Where a portion of a statement previously made
by the witness and apparently inconsistent with
his present testimony has been introduced to
impeach such witness, the entire statement is
admissible in rebuttal. * * * " 98 C.J.S. Witnesses
5 622, page 636.
The record shows that defendant's counsel introduced on
redirect those portions of her prior statement which he deemed
relevant to rehabilitate her.
We find that the district court properly allowed the
State to impeach defendant's testimony by means of prior in-
consistent statements.
Defendant also contends the district court erred in
allowing the State to impeach the testimony of a minor witness
with her own inconsistent statements given to the county attorney
shortly after the incident without the minor being advised of her
constitutional rights.
Defendant relies on the United States Supreme Court cases
of In re Gault, 387 U.S. 1, 18 L Ed 2d 527, 87 S.Ct. 1428, and
Gallegos v. Colorado, 370 U.S. 49, 8 L Ed 2d 325, 82 S.Ct. 1209,
87 ALR2d 614, to argue that the statements of minors cannot be
voluntarily given without counsel present. The Supreme Court did
not automatically make statements of a minor involuntary and in-
admissible due to lack of counsel, but stated extra care must
be exercised to assure the statement was voluntary. In re Gault
at 18 L Ed 2d 527, 561. The Gallegos case can be distinguished
from this case in that the confession of the actual defendant
was involved.
Furthermore, the United States Supreme Court, the Ninth
Circuit Court of Appeals, and this Court have held that as a
general rule, a defendant does not have standing to raise the
question of the violation of another person's personal consti-
tutional rights (which include those granted by the Fourth,
Fifth and Fourteenth Amendments of the United States Constitu-
tion) and thereby obtain exclusion of the evidence gathered.
Alderman v. United States, 394 U.S. 165, 22 L Ed 2d 176, 89
S.Ct. 961; Tileston v. Ullman, 318 U.S. 44, 87 L.Ed 603, 63
S.Ct. 493; Dearinger v. Rhay (9th Cir.) 421 F.2d 1086; State v.
Braden, 163 Mont. 124, 515 P.2d 692.
The district court was correct in permitting the State
to impeach the witness' testimony by her prior inconsistent
statements.
Defendant argues that the district court erred in re-
fusing to give her proposed instruction.
Defendant's proposed instruction reads:
"You are instructed that in a case where a de-
fendant is charged with manslaughter and inter-
poses the defense of self-defense you may take
into consideration any evidence of any prior
assault upon the defendant by the deceased for
the purpose of aiding you in determining who
was the aggressor at the time of the homicide,
the state of mind of the deceased at the time
of the homicide, and whether or not there was
apparent danger to the defendant at the time
of the homicide of being killed or receiving
great bodily injury at the hands of the deceased."
(Emphasis added)
The district court refused the proposed instruction on
the grounds that it was an improper statement of the law as applied
to the facts of the case. The Court interpreted the words
"prior assault" as meaning an assault by the deceased upon the
defendant at some time earlier than the series of events which
led to the stabbing of Martin Standing Rock. The conventional
meaning of the word "prior" may be shown by Webster's New Inter-
national Dictionary, 2nd edition, where it is defined at page
1968 as:
"Preceding in order of time; earlier and therefore
taking precedence; previous" (Emphasis added)
"Previous" is defined at page 1960 as:
"Going before esp, in time; earlier; preceding"
The reference to a "prior assault" would thus be confusing to
the jury .
Defendant maintains the refusal to give her proposed in-
struction number 25 was greatly prejudicial to arguing the de-
fense strategy to the jury. The district court did not give
three instructions setting out the general rules of self-defense,
informing the jury that the defendant was acting in self-defense
if she reasonably believed that the deceased intended to take
her life or do her great bodily harm. This Court held in State
v. Porter, 143 Mont. 528, 539, 391 P.2d 704, that a special in-
struction regarding self-defense was not necessary since the
general self-defense instruction indicating that defendant should
be held blameless if a reasonable man would have been justified
in acting as defendant did under the circumstances as they ap-
peared to the defendant:
" * * * gave the defendant ample opportunity to
expound to the jury his theory concerning the
legal effect of the disparity in age, strength
and physical condition between the defendant
and his victim. * * * "
Where the jury is adequately instructed no error occurs
for failure to give a party's proposed instruction which is al-
ready covered because the jury, being fully instructed, the
attorney for the defendant has a full opportunity to argue the
merits of the defense.
In State v. Lagge, 143 Mont. 289, 295, 388 P.2d 792,
we stated:
"We have often held that it is not error for a
trial court to refuse to give a requested in-
struction, or by implication a portion thereof,
if the instruction's legal theory was adequately
covered by the instructions that were given and
as long as the rights of the defendant were fully
protected. State v. Kendrick, 127 Mont. 403,
406, 265 P.2d 201."
The district court did not err in refusing the instruction.
The judgment of the district cour* is affirmed.
..-
~hikfJustice
We concur:
Justices
/