No. 14639
I N T E SUPREME C U T O THE STATE O MONTANA
H O R F F
1980
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
VS .
JOHN ADOLPH MARTINEZ,
Defendant and A p p e l l a n t .
.1 from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and F o r t h e County o f C a s c a d e ,
Honorable J o e l G. Roth, J u d g e p r e s i d i n g .
Counsel o f Record:
For Appellant:
D a n i e l Donovan a r g u e d , L e g a l S e r v i c e s , G r e a t F a l l s ,
Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Richard Larson argued, A s s i s t a n t A t t o r n e y General,
H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s Montana
Submitted: March 2 4 , 1980
Decided: JW 1 i 7980
U
Filed:
/
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
John Adolph Martinez, defendant and appellant, was con-
victed of felony theft by jury verdict in the Cascade County
District Court. This appeal attacks the judgment of conviction
on the following grounds: (1) insufficiency of the evidence;
(2) the impropriety of allowing several prejudicial hearsay
statements over objection; (3) the denial of a fair trial and
adequate assistance of counsel because of the court's restric-
tions on defendant's opening statement, and (4) the giving of a
jury instruction commonly known as the "Sandstrom instruction."
On May 30, 1978, defendant Martinez removed several com-
ponents of stereo equipment owned by Scott Polotto from a resi-
dence occupied by defendant and Ray Lenz in Great Falls, Montana.
Martinez transported the equipment to his mother's address in
Great Falls and contacted Joyce Lange. He told Ms. Lange that he
wanted to sell the equipment so he could get out of town and that
it was not stolen, Ms. Lange agreed to purchase the equipment.
She picked it up at Martinez' mother's house. On her way home Ms.
Lange was stopped and questioned by two police officers about the
equipment. She told them that she had purchased the equipment
from the defendant.
Scott Polotto, the owner of the stereo equipment, was in
the Cascade County jail when it was taken. His bail had been set
at $50,000. After informing Polotto that his stereo had been
taken, the police officers asked him several questions. In re-
sponse to a question, Mr. Polotto informed the police that he had
not given anyone permission to take the equipment. Scott Polotto
later said that he understood that the defendant's purpose was to
raise his bail.
At trial defense counsel, after objection by the prosecu-
tor, was twice stopped during his opening statement. He was
a t t e m p t i n g t o d i s c u s s t h e e l e m e n t s of t h e c r i m e , t h e burden
of p r o o f , and t h e presumption o f innocence. The p r o s e c u t i o n ' s
o b j e c t i o n s w e r e s u s t a i n e d on t h e b a s i s t h a t d e f e n s e c o u n s e l was
a r g u i n g t h e c a s e which i s improper i n t h e o p e n i n g s t a t e m e n t .
The t r a n s c r i p t r e v e a l s t h e f o l l o w i n g n a r r a t i v e w i t h r e s p e c t t o
d e f e n s e c o u n s e l ' s opening s t a t e m e n t .
"MR. LANG: Thank you. L a d i e s and gentlemen o f
t h e jury. A t t h i s t i m e t h e defendant, through
myself a s h i s c o u n s e l , i s p e r m i t t e d t o make an
opening s t a t e m e n t a l s o t o t h e j u r y p a n e l , and
members. The S t a t e o f Montana h a s f i l e d a n i n f o r -
m a t i o n i n t h i s c a s e , by which t h e y have c h a r g e d
t h e d e f e n d a n t , M r . M a r t i n e z , w i t h t h e c r i x e oE
felony t h e f t . Now, I d i s c u s s e d w i t h you on t h e v o i r
d i r e e x a m i n a t i o n a b o u t some o f t h e u n d e r l y i n g p r i n -
c i p l e s o f t h e law, and a b o u t t h e presumption o f
i n n o c e n c e , and t h e burden of p r o o f , and p r o o f be-
yond a r e a s o n a b l e d o u b t , and I would j u s t l i k e t o
go o v e r t h o s e a g a i n w i t h you a g a i n a t t h e p r e s e n t
time---
"MR. BROWNING: I f your honor p l e a s e , w e o b j e c t t o
t h i s on t h e ground t h a t c o u n s e l i s now a r g u i n g t h e
c a s e b e f o r e t h e j u r y , i n s t e a d of t e l l i n g t h e j u r y
what he i n t e n d s t o p r o v e i n h i s c a s e . This i s not
an opening s t a t e m e n t t h a t c o u n s e l i s now making t o
t h e members o f t h e j u r y .
"THE COURT: The c o u r t w i l l s u s t a i n t h e o b j e c t i o n .
The p u r p o s e of an o p e n i n g s t a t e m e n t i s t o g i v e t h e
j u r o r s a p r e v i e w of t h e e v i d e n c e which w i l l be
p r e s e n t e d , and n o t an argument.
"MR. LANG: L a d i e s and gentlemen of t h e j u r y , at this
t i m e t h e S t a t e o f Montana h a s t h e o b l i g a t i o n o f prov-
i n g e a c h and e v e r y e l e m e n t of t h e o f f e n s e c h a r g e d
i n t h e information. Now, a s you w i l l r e c a l l , t h e
judge had i n s t r u c t e d you, j u s t p r i o r t o your l e a v i n g
f o r l u n c h , and t h e judge d i d r e c i t e t h e c h a r g e t h a t
t h e S t a t e h a s made a g a i n s t t h e d e f e n d a n t . Now, t h e
S t a t e h a s t h e o b l i g a t i o n of p r o v i n g e a c h and e v e r y
e l e m e n t o f t h e o f f e n s e , and t h a t was t h a t M r . M a r t i n e z
d i d , p u r p o s e l y and knowlingly---
"MR. BROWNING: W e w i l l a g a i n o b j e c t , your h o n o r , t h a t
counsel i s arguing t h e case t o t h e jury.
"MR. LANG: Your honor, a t t h i s t i m e t h e S t a t e of
Montana h a s i n d i c a t e d what t h e y w i l l p r o v e , and I
i n t e n d t o show t o t h e j u r y e a c h o f t h e i t e m s t h a t
t h e y s h o u l d l o o k f o r , as t h e t e s t i m o n y p r o g r e s s e s
i n t h e c a s e , and t h a t i f any of t h o s e i t e m s s h o u l d
be m i s s i n g , I would a s k t h a t t h e members of t h e j u r y
be c a r e f u l t o n o t e t h e f a c t t h a t t h e r e i s c e r t a i n
e v i d e n c e which h a s n o t been p r e s e n t e d , and which t h e
S t a t e h a s t o prove.
"THE COURT: Well, Mr. Lang, I think that would be
for final argument. I think that counsel is mis-
construing the purpose of an opening statement.
Once again the purpose of an opening statement is
to present to the jurors a preview of the evidence
that is to be presented by the defendant. You, of
course, will be given an opportunity in your final
argument to argue the points that you are now rais-
ing. The objection is sustained.
"MR. LANG: Well, then, your honor, at this time,
and because of the court's ruling, I have no opening
statement to make and would object to the court's
ruling.
"THE COURT: The record may so show.
"MR. LANG: I feel that a review of the charges, in
light of---a review of the charges in a light that
is viewed by the defendant would be in order for the
jury, and I would request the opportunity to explore
each and every one of these items and elements with
the jury, in the light that is most favorable to the
defendant.
"THE COURT: The court will sustain the objection and
overrule the motion of defendant.
"MR. LANG: Ladies and gentlemen, I have merely a short
statement to make to you. I would ask that you listen
to the evidence carefully, and that you listen also to
not only what you do hear, but also to what you do not
hear, because it is the position of the defendant that
the State of Montana cannot prove each and every
element of this charge. Thank you."
During the course of the trial Scott Polotto testified
that he had loaned the equipment to Ray Lenz, the defendant's
roommate, and that he and Mr. Lenz had a reciprocal agreement to
sell any of the other's property if the other needed to raise
bail. He further testified that he had talked with two police
officers, Detective Warrington and Detective Macek, when he was
in jail, regarding his equipment and that he had never "directly"
given Martinez permission to take the equipment. Upon cross-
examination Polotto stated that he now understands that the de-
fendant removed the equipment in an attempt to raise his bail and
that knowing the details, he now authorizes the defendant's con-
duct. The last statements were admitted over the State's objec-
tion on the basis that Polotto's state of mind was in issue because
of the "unauthorized control" element of theft set forth in
section 45-6-301, MCA. On redirect examination the prosecution
questioned Polotto concerning a conversation with Detective
Warrington, and he testified that he told Detective Warrington
that he had given no one permission to take the stereo equipment.
After Scott Polotto testified, the State several times
was allowed, over hearsay objections, to obtain testimony from
two police officers concerning Polotto's statements to them. The
State called Detective Warrington and questioned him concerning
the conversation with Scott Polotto. Detective Warrington testi-
fied that he had asked Scott Polotto if he had given anyone per-
mission to take the equipment. The State's question of "What was
his [Polotto's] response" was objected to as hearsay. The ob-
jection was overruled after the Deputy County Attorney stated
that the defense had put Polotto's state of mind in issue. The
transcript indicates that the following testimony was admitted
after the defense's objection:
"MR. BROWNING: All right, then, what was the content
of the conversation that you had with Scott Polotto,
Detective Warrington? A. Well, Scott Polotto was
very irritated that anybody would have been there,
taking his stereo equipment. He stated that he did
not give permission for anybody to remove his stereo
equipment from that residence, where we had arrested
him. "
Following Detective Warrington's testimony, the State
called Detective Macek, who was present at the time the conver-
sation between Detective Warrington and Scott Polotto took place.
Macek testified, without further objection, to the same conver-
sation that Scott Polotto and Detective Warrington had already
testified to.
The State rested its case after Detective Macek's testi-
mony. The defendant then moved for a directed verdict "on the
grounds that the testimony shows that the defendant, Mr. Martinez,
did not exert unauthorized control over the alleged stolen stereo
equipment, but, in fact, this control was subsequently ratified
by Mr. Polotto, and it is a well known rule of agency that a
principal can subsequently ratify a contract which was originally
unauthorized, and that such ratification relates back to the time
of the contract, and renders such contract authorized."
The defendant's motion was denied and the District Court
refused to give the following proposed instruction.
"You are instructed that ratification is the
adoption or affirmance by a person of a prior
act which was done or professed to be done on
his account. If one ratifies another's unauthor-
ized act, on his behalf, the act is given effect
as if originally authorized. It is equivalent to,
or a substitute for, and has the effect of curing
the absence of, original authority. Ratification
relates back to the time when the act was done,
and supplies original authority to do the act.
Therefore, if you find that Scott Polotto, subse-
quent to May 30, 1978, ratified the acts of John
Adolph Martinez, you must find that John Adolph
Martinez did not obtain or exert unauthorized
control over the stereo equipment, and you must
find the defendant, Mr. Martinez, not guilty."
The following jury instruction was given by the court:
"You are instructed that the law presumes that a
person intends the ordinary consequences of his
voluntary acts."
The defendant did not take the stand, and the only evidence
in the record of his intent in taking the equipment were two con-
tradictory statements; he told Ms. Lange he needed the money to
get out of town, and Scott Polotto testified that Mart-inez'purpose
was to raise his bail.
The jury found Martinez guilty of felony theft and he was
sentenced to four years in the Montana State Prison.
The following issues have been raised on appeal:
1. Whether the District Court committed reversible error
by giving a "Sandstrom instruction".
2. Sufficiency of the evidence to sustain the conviction.
3. Did the admission of hearsay constitute reversible
error?
4. Did the District Court so restrict defendant's opening
statement that he was denied adequate assistance of counsel and a
fair trial?
We note that defendant was convicted of felony theft under
section 45-6-301, MCA, which provides in pertinent part:
"(1) A person commits the offense of theft when
he purposely or knowingly obtains or exerts un-
authorized control over property of the owner and:
"(a) has the purpose of depriving the owner of the
property ;
"(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to deprive
the owner of the property; or
"(c) uses, conceals, or abandons the property know-
ing such use, concealment, or abandonment probably
will deprive the owner of the property.
This Court has stated in another felony theft case:
"'The element of felonious intent in every contested
criminal case must necessarily be determined from
facts and circumstances of the particular case--this
for the reason that criminal intent, being a state
of mind, is rarely susceptible of direct or positive
proof and therefore must usually be inferred from the
facts testified to by witnesses and circumstances as
developed by the evidence ...'
"'The question of intent is a question for the jury.'"
State v. Farnes (1976), 171 Mont. 368, 372-373, 558
P.2d 472, 475.
The jury was given the following instruction on the element
of intent:
"You are instructed that the law presumes that a
person intends the ordinary consequences of his
voluntary acts."
This is the same instruction that was declared to be an
unconstitutional denial of due process in Sandstrom v. Montana
(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L Ed 2d 39. The basis of
Sandstrom is that the instruction shifts the burden of proof on
the element of intent and deprives the defendant of the presump-
tion of innocence. However, the United States Supreme Court
expressly left open the issue of whether or not the giving of this
instruction may be harmless error.
The State, in the present appeal, contends that this
Court should not review this instruction because of defendant's
failure to object. .It is further contended that the "plain
error" rule should not be invoked and even if it is, the error
constitutes harmless error. We disagree.
Montana's "plain error" rule is contained in section 46-
20-702, MCA, which provides:
"46-20-702. Types of errors noticed on appeal.
Any error, defect, irregularity, or variance which
does not affect substantial rishts shall be dis-
regarded. Defects affecting j;risdictional or
constitutional rights may be noticed although they
were not brought to the attention of the trial cour
(Emphasis added.)
As determined in Sandstrom the instruction given is a
defect affecting constitutional rights and we may review the issue
under the "plain error" rule even though it was not brought to the
attention of the trial court. However, under Chapman v. Califor-
nia (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705, not all
constitutional errors require reversal; the error may be harmless
under the facts and circumstances of a case even though it is of
constitutional magnitude.
This Court has been called to determine whether the giving
of the Sandstrom instruction constitutes harmless error in several
cases since Sandstrom. In these cases this Court has had to deter-
mine on a case-by-case basis whether the error was harmless
within the guidelines that have evolved at the federal level in
the cases of Fahy v Connecticut (1963), 375 U.S. 85, 84 S.Ct.
.
229, 11 L Ed 2d 171; Chapman v. California, supra; Harrington v.
California (1969), 395 U.S. 250, 89 S.Ct. 1726, 23 L Ed 2d 284;
and Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 2174, 33
L Ed 2d 1.
Our decisions reveal that in following the federal case law
we must view all the evidence in determining whether the instruction
had a n impact on t h e j u r y . I n S t a t e v. Hamilton ( 1 9 8 0 ) , Mont .
, 605 P.2d 1121, 1132, 37 St.Rep. 70, 82, we s t a t e d " ...
t h e a p p e l l a t e c o u r t d e t e r m i n e s t h e impact of t h e e r r o r upon a
reasonable jury. I f t h e impact of t h e i n s t r u c t i o n c o u l d n o t have
reasonably contributed t o t h e v e r d i c t , then t h e e r r o r i s harmless."
W e found t h e Sandstrom i n s t r u c t i o n t o be h a r m l e s s e r r o r i n
Hamilton s i n c e t h e e v i d e n c e of i n t e n t was overwhelming and i n
l i g h t of t h e f a c t s , " t h e impact of t h e i n s t r u c t i o n upon t h e j u r y
c o u l d n o t have r e a s o n a b l y c o n t r i b u t e d t o t h e v e r d i c t . " Mont.
at , 605 P.2d a t 1133, 37 St.Rep. a t 83. S t a t e v. McKenzie
(1980) I Mont . , 608 P.2d 428, 37 St.Rep. 325, i n f o l l o w -
i n g t h e r a t i o n a l e o f Hamilton, a l s o found h a r m l e s s e r r o r i n t h e
g i v i n g of a Sandstrom i n s t r u c t i o n as a r e s u l t of overwhelming
evidence of i n t e n t .
T h i s Court h a s found t h e g i v i n g o f a Sandstrom i n s t r u c t i o n
t o be r e v e r s i b l e e r r o r i n t h e c a s e s o f S t a t e v. Sandstrom ( 1 9 7 9 ) ,
.
M o i l t. , 603 P.2d 2 4 4 , 36 St.Rep. 2099; S t a t e v. Wogamon ( 1 9 8 0 ) ,
Mont . - I -P.2d , 37 St.Rep. 840 and S t a t e v. P o n c e l e t
(1980) Mont .
-1 - 2d
P. , 37 St.Rep. 760. I n each of
t h e s e c a s e s t h e r e was no overwhelming e v i d e n c e of i n t e n t and t h i s
C o u r t was u n a b l e t o s t a t e t h a t t h e e r r o r d i d n o t c o n t r i b u t e t o t h e
v e r d i c t beyond a r e a s o n a b l e d o u b t .
I n our p r e s e n t case, t h e evidence of i n t e n t i s contradic-
t o r y ; Martinez t o l d M s . Lange h e needed t h e money from t h e s a l e of
t h e s t e r e o t o g e t o u t of town, and S c o t t P o l o t t o t e s t i f i e d t h a t t h e
p u r p o s e was t o r a i s e b a i l . On t h e b a s i s o f t h i s e v i d e n c e w e can-
n o t d e t e r m i n e t h a t t h e g i v i n g o f a Sandstrom i n s t r u c t i o n d i d n o t
contribute t o the verdict. The e l e m e n t of i n t e n t was a t l e a s t one
of t h e p r i n c i p a l i s s u e s a t t r i a l . Although t h e j u r y c e r t a i n l y c o u l d
have found a f e l o n i o u s i n t e n t i f p r o p e r l y i n s t r u c t e d , t h e r e was no
overwhelming e v i d e n c e of d e f e n d a n t ' s i n t e n t . A s a r e s u l t , w e con-
c l u d e t h a t t h e " p l a i n e r r o r " r u l e i s invoked b e c a u s e of t h e u s e of
a constitutionally defective jury instruction and that the
error cannot be considered harmless. We reverse the conviction
and remand the cause for a new trial. For the guidance of the
District Court on retrial, we address the remaining issues which
may recur at the second trial.
Defendant contends that sufficient evidence does not
exist to establish the "unauthorized control" over Polotto's
property or a "purpose of depriving" Polotto of his property
which are essential elements of theft under section 45-6-301,
MCA. The basis of this contention is Scott Polotto's testi-
mony that once he understood Martinez' purpose was to raise bail
he condoned the act thereby precluding a finding of either of these
elements.
In addressing the test to be applied in issues involving
the sufficiency of the evidence, it is well-established that
questions of fact must be determined solely by the jury and that
given a certain legal minimum of evidence, this Court will not
substitute its judgment for that of the jury. In determining
whether the verdict is supported by substantial evidence, we must
examine the evidence in the light most favorable to the prevail-
ing party. Substantial evidence is defined as "such relevant evi-
dence as a reasonable mind might accept as adequate to support a
conclusion." State v. Merseal (1975), 167 Mont. 412, 415-416,
538 P.2d 1366, 1367-1368; State v Pendergrass (1978),
. Mon t .
-
1 ,
- 586 P.2d 691, 697-698, 36 St.Rep. 1512, 1520.
The testimony of Scott Polotto merely reveals that al-
though he did not "directly" give Martinez permission he ratified
the c~:~?uct
after he learned that the purpose was to raise bail.
With regard to defendant's unauthorized control argument,
it is clear that a victim cannot ratify a criminal act after the
crime has been completed. See Davis v. Government of Canal Zone
(5th Cir. 1924), 299 F. 256; Hill v. State (1972), 253 Ark. 521,
487 S.W.2d 624. The testimony of Scott Polotto establishes that
he condoned the act of the defendant only after he learned that
Martinez had taken the equipment to raise bail. This testimony
goes to the element of wpurpose of depriving the owner of the
property" instead of unauthorized control (consent). If de-
fendant had the requisite mental state, that is a purpose to de-
prive, at the time the equipment was taken, it makes no difference
that the victim later condones the act on a belief that the defen-
dant did not have the intent to commit a crime. If the defendant
had the intent to deprive Polotto of the stereo when it was taken,
the crime was completed at that time and a subsequent ratification
has no legal effect. If, on the other hand, the defendant did not
have the requisite purpose he would be entitled to acquittal and
the subszquent consent would be irrelevant. A purpose to deprive
the owner of his property is a question for the jury to decide
upon proper instruction. We find sufficient evidence to support a
conviction as a result of Scott Polotto's and Joyce Lange's testi-
mony.
The defendant also asserts on appeal that the District
Court improperly admitted several prejudicial hearsay statements
over objection. The hearsay statements of which he complains in
this appeal all relate to Scott Polotto's statement that he had
not given anyone permission to take his stereo equipment. Testi-
mony concerning this statement was admitted into evidence when
Scott Polotto was on the stand, and later when detectives Warring-
ton and Macek testified.
Turning first to Scott Polotto's testimony, he testified
on direct examination by the prosecution that "I didn't give him
[Martinez] directly permission." On cross-examination he stated
that he now authorizes the conduct. Then on redirect examination
the following narrative, which is the basis of the defendant's
allegation of error with regard to this witness, occurred:
"Q. [By Deputy County Attorney] And didn't you,
in fact, tell Detective Dave Warrington---
"MR. LANG [Defense counsel]: Your honor, I am
going to object to this as hearsay.
"THE COURT: Well, he didn't finish the question---
"MR. BROWNING: Yes, I would like to finish my ques-
tion, if the court please.
"THE COURT: Overruled.
"MR. BROWNING: Didn't you, in fact, tell Detective
Dave Warrington that you were the owner of this
stereo equipment, and that you did not give anyone
permission to take the stereo equipment? A. Yes
sir. "
This testimony, when dissected, includes two statements
which must be analyzed within the hearsay rules: "I, Scott Polotto,
made a statement to the police officers that I had not made a
statement to anyone authorizing them to take my stereo equipment."
This testimony bears directly upon the element of "unauthorized
control" and is offered "to prove the truth of the matter asserted"
within Rule 801, Mont.R.Evid. The fact that he had not made a
statement authorizing anyone to remove the equipment is admissible
under the "state of mind" exception to the hearsay rule. Rule
803(3), Mont.R.Evid. The first part of this testimony, that he
had told the police, is not hearsay by reason of Rule 801(d)(1),
Mont. R Evid. , which provides :
.
"(d) Statements which are not hearsay. A state-
ment is not hearsay if:
"(1) Prior statement by witness. The declarant
testifies at the trial or hearing and is subject
to cross-examination concerning the statement,
and the statement is (A)inconsistent with his
testimony, or ( B ) consistent with his testimony
and is offered to r e h t an express of implied
charge against him of subsequent fabrication, im-
proper influence or motive . . ."
Thus, even if a proper objection had been made, the testi-
mony would have been admissible. The statement, in this context,
was not hearsay under Rule 801(d)(l), Mont.R.Evid. The statement
was inconsistent with his prior testimony on cross-examination
that he now authorizes the conduct and is consistent with his
original statement on direct examination that he did not directly
give the defendant permission, and it was also offered to rebut
the State's implied charge of subsequent fabrication, improper
influence or motive.
Turning next to the testinony of the two police officers,
the following took place when Detective Warrington was on the
stand.
"Q. [By Deputy County Attorney] And as a result
of your call from dispatch, what did you do? A.
Well, Detective Sergeant Macek and myself went to
the jail holding facilities at the city police
station to make transfers of the three people that
we had to transfer to the county, and in doing so,
I talked with Scott Polotto, and I asked him if he
gave permission for anybody to remove his stereo
equipment from their lodging, where we had made the
arrest on him.
"Q. What was his response? A. Negative---
"MR. LANG: Objected to, your honor, as being
hearsay. "
The objection was overruled on the basis of the "state
of mind" exception to the hearsay rule, and the prosecution was
allowed to restate the question and receive a more detailed
answer. First it must be pointed out that the objection appears
from the transcript to be proper, since it seems that the police
officer gave a very quick response and defense counsel cut off
the answer as quickly as possible. See Hackenson v. City of
Waterbury (1938), 124 Conn. 679, 2 A.2d 215; Wightman v. Campbell
(1916), 217 N.Y. 479, 112 N.E. 184. In analyzing the content of
this testimony Detective Warrington was actually saying "Scott
Polotto told me that he had not told anyone that they were author-
ized to take the stereo equipment." In this instance the declarant,
Scott Polotto, was not on the stand; therefore, Rule 801(d)(l),
does not apply, and we have "hearsay included within hearsay."
Rule 805, Mont.R.Evid., requires the exclusion of multiple hearsay
unless "each part of a combined statement conforms with an excep-
tion to the hearsay rule. . ."
No exception to the hearsay rule applies to the first part
of this combined statement; therefore, it is inadmissible. Scott
Polotto had previously given the same testimony and, as the dec-
larant, was subject to cross-examination concerning the statement.
This safeguard of cross-examination, which is the essence of the
hearsay rule, did not exist when Detective Warrington was on the
stand.
Detective Macek's testimony was very similar to Detective
Warrington's; however, a proper objection was not made. The Dis-
trict Court properly admitted Macek's testimony, since no objec-
tion was made.
The defendant also contends that he was denied a fair trial
and the adequate assistance of counsel as a result of the District
Court's restrictions on his opening statement. In reviewing the
District Court's rulings on defense counsel's motion, we find no
error. The proper function of an opening statement is to outline
the defense and the evidence that the defendant intends to produce.
It is improper to expound or argue legal theories or to attempt to
instruct the jury as to the law of the case. 23A C.J.S. Criminal
Law
- S1086; ABA Standards, The Defense Function S7.4 (Approved
Draft, 1971). In this case the defense counsel was attempting to
argue legal theories and instruct the jury. As a result, the re-
strictions were proper.
The judgment of conviction is vacated and the cause remanded
to the District Court for a new trial.
Chief Justice
We concur: