State v. Gray

NO. 83--04
IN THE SUPREME COURT OF THE STATE OF MONTANA

1983

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JAMES E. GRAY,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable H. William Coder, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
John E. Riddiough argued, Missoula, Montana

For Respondent:

Mark Murphy argued, County Prosecutor Services,
Helena, Montana

--

Submitted: October 25, 1983
Decided: December 23, 1983

- -.
Clerk
2.1~. C h i e f J u s t i c e F r a n k I . H a s w e l l d e l i v e r e d t h e O p i n i o n o f
the Court.
Following a jury trial in the District Court of

Ravalli County, defendant was convicted of criminal
m i s c h i e f , a f e l o n y , by r e a s o n o f d a m a g i n g a p i c k u p w i t h t h e

p u r p o s e of defrauding an insurer. Defendant a p p e a l s from
t h e judgment o f c o n v i c t i o n .
T h i s is an appeal following t h e second t r i a l of this

case. This Court reversed t h e f i r s t conviction of defendant

f o r procedural e r r o r s i n admitting "other crimes" evidence.

S t a t e v. G r a y (Mont. 1 9 8 2 ) , 643 P.2d 2 3 3 , 39 S t . R e p . 622.
The p r e s e n t case is a retrial of defendant on the

original charge before a different judge and jury. In
e s s e n c e , t h e S t a t e ' s e v i d e n c e i n d i c a t e d t h a t d e f e n d a n t con-

s i d e r e d h i s p i c k u p a " l e m o n " and w a n t e d t o g e t r i d o f it;

t h a t h i s i n s u r a n c e on t h e p i c k u p was b e i n g c a n c e l l e d e f f e c -
t i v e August 31, 1980; t h a t on A u g u s t 2 8 , he i n t e n t i o n a l l y
d r o v e t h e v e h i c l e o v e r a s t e e p bank on t h e S k a l k a h o r o a d t o

collect the insurance; that d e f e n d a n t and one Stephen
Forsman c o n c o c t e d a s t o r y t h a t d e f e n d a n t was f o r c e d o f f t h e
r o a d by a t r u c k h a u l i n g a h o r s e t r a i l e r ; t h a t t h e r e a f t e r t h e

insurance adjuster determined that the pickup was not a

total loss but was repairable; and thereafter one Terry
Atkins vandalized the pickup with defendant driving Atkins
t o i t s l o c a t i o n and a c t i n g a s a l o o k o u t .
Defendant's evidence essentially consisted of a

refutation of the State's e v i d e n c e by impeachment of the
State's witnesses together with defendant's testimony
concerning the events in question. Basically, defendant
t e s t i f i e d t h a t he l e f t h i s t r a i l e r on t h e e v e n i n g o f August
28 in a rage to drive up to Skalkaho Falls to cool off; that
he did not like Stephen Forsman and was mad at his step-
daughter Leala for running around with Forsman; that they
followed him in another vehicle and when he looked over his
shoulder to see if they were still following him, his pickup
went over the bank on the Skalkaho road and injured him;
that the story about being forced off the road by a truck
and horse trailer was entirely the invention of Stephen
Forsman but he went along with it to protect Forsman. Defen-
dant denied any complicity in later vandalizing his pickup
and denied prior knowledge of cancellation of the insurance
on his pickup.
Defendant advances three specifications of error:
1. Defendant is entitled to a new trial because of
prosecutorial misconduct resulting in the admission in
evidence of defendant's parole status.
2. The refusal of the court to instruct the jury on
the lesser included offense of unsworn falsification to
authorities, a misdemeanor, constitutes reversible error.
3. The admission of photographs of defendant's truck
after it had been vandalized constitutes reversible error.
At a hearing in chambers on the first day of trial,
the following colloquy took place between the opposing
attorneys concerning defendant's parole status:
"MR. RIDDIOUGH: I would have one final
request, Your Honor, and that would be
with regards to the fact that Mr. Gray
was on parole at the time that this
offense was allegedly committed and I
would request that the State caution its
witnesses before testimony to not mention
during their testimony anything regarding
any prior convictions or any parole or
parole revocation.
"THE COURT: Mr. Murphy?
 "MR. MURPHY: Your Honor, i n t h e t r i a l o f
t h e f i r s t c a s e Mrs. Townsend t o o k g r e a t
p a i n s t o s a n i t i z e t h e r e c o r d o f Mr.
Gray's previous record. In f a c t , there
i s a n i n d i c a t i o n on t h e p a r t o f J a m e s
B a i l e y t h a t h e r e f u s e d t o answer a q u e s -
t i o n p u t t o him by Mrs. Townsend c o n c e r n -
i n g what h e d i d n e x t . What h e d i d n e x t
was c o n t a c t R a l p h F i s h e r , t h e D e f e n d a n t ' s
parole officer. We w i l l again attempt t o
s a n i t i z e t h e record of any of t h o s e
r e f e r e n c e s and I w i l l c a u t i o n my w i t -
n e s s e s and a t t e m p t t o a v o i d a n y m e n t i o n
of t h a t .
"MR. RIDDIOUGH: That's sufficient for
me.
"THE COURT: Okay."
L e a l a G r a y , d e f e n d a n t ' s s t e p d a u g h t e r , was c a l l e d a s a
witness in the S t a t e ' s case-in-chief. D u r i n g d i r e c t examina-
t i o n by t h e p r o s e c u t o r , t h e f o l l o w i n g exchange took p l a c e

r e g a r d i n g S t e p h e n Forsman, a n o t h e r of t h e S t a t e ' s w i t n e s s e s :

"(2. And s o you p r o c e e d e d b a c k . Did you
t a l k a b o u t a n y t h i n g e l s e on t h e way b a c k ?
A. W e l l , S t e v e was mumbling a b o u t , w h a t
am I g o i n g t o d o . I d o n ' t w a n t t o be i n
trouble. I d o n ' t want t o g e t i n v o l v e d .

"Q. Did t h a t make sense t o you? A.
Yeah.

"Q. How d i d you f e e l t h a t h e would b e i n
t r o u b l e ? A. The c o n v e r s a t i o n a t d i n n e r -
t i m e would make him f e e l l i k e h e c o u l d
possibly get in trouble.
Q . With y o u r f a t h e r , w i t h t h e a u t h o r i -
t i e s , what k i n d o f t r o u b l e ? A. Well,
s e e , w h a t we t a l k e d a b o u t a t d i n n e r t i m e
was t h e t r o u b l e w e ' v e b e e n h a v i n g w i t h
t h e brown t r u c k and t h e a r g u m e n t dad h a s
w i t h C&M Arrow and him b e i n g on p a r o l e
and h e knew t h a t s i n c e d a d wrecked t h e
t r u c k , t h a t would a f f e c t h i s p a r o l e a n d
t h a t would b r i n g i n t h e l a w and S t e v e
d i d n ' t l i k e t h e law -- d o e s n ' t l i k e t h e
law. ''
L a t e r , d u r i n g t h e same e x a m i n a t i o n of t h i s w i t n e s s by
the prosecutor i n the S t a t e ' s case-in-chief, the following
exchange took p l a c e :
 "Q. Okay. B u t you t o l d t h i s s t o r y t o
O f f i c e r B a i l e y b e c a u s e you d i d n ' t w a n t t o
l i e ; is t h a t r i g h t ? A . Because I wanted
t o h e l p S t e v e s t a y o u t of t h e s c e n e o f
t h i s whole t h i n g . I g u e s s t h e word I ' m
l o o k i n g f o r is c o v e r f o r S t e v e .
"Q. And w h a t had S t e v e d o n e wrong? A.
W e l l , h e t o l d them t h a t t h e r e was a t r u c k
and t r a i l e r i n v o l v e d t h a t w a s n ' t .

"Q. And h e t o l d them t h a t b e c a u s e h e was
a f r a i d h e was g o i n g t o g e t i n t r o u b l e ?
A. Uh-huh.
"Q. For w h a t ? A. B e c a u s e h e knew a b o u t
t h e a r g u m e n t my d a d h a d w i t h C&M o v e r t h e
t r u c k and h e a l s o knew t h a t my d a d was o n
p a r o l e . 'I
At t h e conclusion of t h e d i r e c t examination of L e a l a

G r a y , a p p e l l a n t moved f o r a m i s t r i a l i n c h a m b e r s o u t s i d e t h e
p r e s e n c e o f t h e j u r y b a s e d upon t h e e l i c i t i n g o f t h e t e s t i -

mony of defendant's parole status by the prosecutor as
i n d i c a t e d above.
The c o u r t d e n i e d t h e m o t i o n f o r m i s t r i a l b u t g a v e a

cautionary i n s t r u c t i o n a s follows:
" L a d i e s and g e n t l e m e n o f t h e j u r y , you
h a v e r e c e i v e d some t e s t i m o n y i n t h i s c a s e
t h a t t h e a c c u s e d , J a m e s G r a y , was on
p a r o l e a t t h e time t h a t t h e e v e n t s
occurred i n the i n s t a n t case.

"You a r e i n s t r u c t e d t o e n t i r e l y d i s r e g a r d
such testimony. The s t a t u s o f t h e
accused is totally irrelevant and
immaterial t o any i s s u e i n t h e c a s e
b e f o r e you and t o c o n s i d e r s u c h t e s t i m o n y
i n y o u r d e l i b e r a t i o n s would b e v i o l a t i v e
of your o a t h s a s j u r o r s . "
Defendant correctly points out that the prosecutor
breached his promise to caution Leala Gray against
mentioning her stepfather's parole status. Additionally,
q u e s t i o n s w e r e a s k e d on two o c c a s i o n s d u r i n g L e a l a G r a y ' s
d i r e c t e x a m i n a t i o n by t h e p r o s e c u t o r t h a t e l i c i t e d t h e f a c t

t h a t d e f e n d a n t was on p a r o l e . Defendant argues t h a t t h e
evidence that he was on parole at the time of the commission
of the crime charged is evidence of other crimes that must
pass both the test of admissibility and the test of proper
notice before it can be introduced in evidence. State v.
Just (1979) 184 Mont. 262, 602 P.2d 957; State v. Case
(Mont. 1980), 621 P.2d 1066, 37 St.Rep. 2057; State v. Gray
(Mont. 1982), 643 P.2d 233, 39 St.Hep. 622. Additionally,
the prosecutor stated that he purposely did not talk to
Leala Gray prior to her testimony, although he had promised
to caution her against disclosing her step-father's parole
status.
It is clear that misconduct by a prosecutor may form
the basis for granting a new trial where the prosecutor's
actions have deprived defendant of a fair and impartial
trial. State v. Bain (1978), 176 Mont. 23, 575 P.2d 919;
State v. Toner (1953), 127 Mont. 283, 263 P.2d 971; State v.
Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133.
The prosecution admits that it breached its promise to
caution Leala Gray against disclosing her father's parole
status during her testimony. The prosecution argues that
the State did not intentionally fail to warn Ms. Gray not to
mention her stepfather's parole status; that the State did
not purposely elicit from her the testimony concerning her
stepfather's parole status; that any prejudice caused by the
mention of defendant's status was eliminated by the court's
cautionary instruction; and that defense counsel had more
than an equal opportunity by virtue of numerous contacts
with Leala Gray to prevent this error by warning her himself
and that defense counsel also failed to warn her. The State
also argues that the error was harmless in any event.
 W f i n d no e x c u s e f o r t h e f a i l u r e o f
e the prosecution
t o warn L e a l a G r a y n o t t o m e n t i o n h e r s t e p f a t h e r ' s p a r o l e
s t a t u s a s the prosecutor had promised. However, we hold

t h a t u n d e r t h e c i r c u m s t a n c e s of t h i s c a s e t h e D i s t r i c t C o u r t

d i d n o t abuse i t s d i s c r e t i o n denying t h e motion f o r mistrial

for testimony concerning defendant's p a r o l e s t a t u s . Rule
403, Mont.R.Evid., provides the exclusion of relevant

evidence that may prejudice the jury. However, as
r e c o g n i z e d by t h e Commission o n E v i d e n c e , "a k e y e l e m e n t o f
t h i s r u l e is t h e d i s c r e t i o n of t h e judge i n d e c i d i n g whether

o t h e r w i s e r e l e v a n t evidence is t o be excluded." I n S t a t e v.

R o l l i n s ( 1 9 6 7 ) , 1 4 9 Mont. 4 8 1 , 428 P.2d 4 6 2 , t h i s C o u r t h e l d
t h a t on q u e s t i o n s o f t h i s nature, t h e " t r i a l judge should

have l a t i t u d e of d i s c r e t i o n . " 1 4 9 Mont. a t 484; s e e a l s o ,
S t a t e v . A u s t a d (Mont. 1 9 8 2 ) , 6 4 1 P.2d 1 3 7 3 , 39 S t . R e p . 356;
S t a t e v. Azure ( 1 9 7 9 ) , 1 8 1 Mont. 4 7 , 5 9 1 P.2d 1125; W a l l i n

v . Kenyon E s t a t e ( 1 9 7 4 ) , 1 6 4 Mont. 1 6 0 , 519 P.2d 1 2 3 6 .

As a m a t t e r of law, we cannot hold t h a t t h e D i s t r i c t
Court abused its d i s c r e t i o n in denying t h e motion for a
mistrial. First of all, the judge stated that from
observation of the jury, the impact of Leala Gray's

testimony concerning the defendant's parole s t a t u s was
minimal. Also, the court cautioned the jury t o disregard

all evidence of defendant's parole status as it was
irrelevant and immaterial which cured any resulting
p r e j u d i c e t o him.
Furthermore, we recognize t h a t prejudice w i l l not be

presumed; it must be established from the record that a
s u b s t a n t i a l r i g h t was d e n i e d . S e c t i o n 46-20-701, MCA; State

v. Wells (Mont. 1 9 8 3 ) , 658 P.2d 3 8 1 , 40 S t . R e p . 127; S t a t e
v. Dupre (Mont. 1982), 650 P . 2 d 1381, 39 St.Kep. 1660. The
test of prejudicial error requiring reversal is whether
there is a reasonable possibility the inadmissible evidence
might have contributed to the conviction. State v. Wells,
supra; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97;
also see, Chapman v. California (1967), 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705.
Here, Leala Gray was a hostile witness for the State.
She, unlike a law enforcement officer, had no motive to
secure her stepfather's conviction. The State had no influ-
ence over her testimony. The evidence supporting
defendant's conviction was substantial, if not overwhelming.
Although there were many attempts to impeach various
witnesses for both the State and the defendant during the
trial, the defendant's version of events is simply
incredible. It was refuted by witnesses Forsman, Atkins,
Leala Gray and to some extent by the highway patrolman and
the nurse at the hospital. We hold that the totality of
circumstances shows no reasonable possibility that the
inadmissible evidence might have contributed to defendant's
conviction.
Directing our attention to the second specification of
error, we note that the court refused to give defendant's
offered instruction on unsworn falsification to authorities,
a misdemeanor. We further note that an identical instruction
had been accepted and given by the court in appellant's
first trial.
Defendant argues that the District Court's instruc-
tions must cover every issue or theory having support in the
evidence, and the inquiry of the District Court must only be
whether o r n o t any evidence e x i s t s i n t h e r e c o r d t o w a r r a n t
an i n s t r u c t i o n . S t a t e v . B u c k l e y ( 1 9 7 6 ) , 1 7 1 Mont. 2 3 8 , 557
P.2d 283; S t a t e v. B o u s l a u g h ( 1 9 7 8 ) , 1 7 6 Mont. 7 8 , 576 P.2d

261.

The c r i m e w i t h w h i c h d e f e n d a n t was c h a r g e d r e a d s a s
follows :
"45-6-101. C r i m i n a l m i s c h i e f . (1) A p e r -
s o n commits t h e o f f e n s e o f c r i m i n a l m i s -
c h i e f i f he knowingly o r purposely:

" ( c ) damages o r d e s t r o y s p r o p e r t y with
the purpose t o defraud an insurer;"
The m i s d e m e a n o r o f f e n s e of unsworn falsification to

a u t h o r i t i e s p r o v i d e s t h a t a p e r s o n commits t h a t o f f e n s e i f
with a purpose t o mislead a p u b l i c s e r v a n t i n performing h i s

official function, he utilizes a writing i n a manner by

which t o m i s l e a d . S e c t i o n 45-7-203, MCA.

Where t h e same a c t o r t r a n s a c t i o n c o n s t i t u t e s a v i o l a -
t i o n of two d i s t i n c t s t a t u t o r y p r o v i s i o n s , t h e t e s t t o be
a p p l i e d t o d e t e r m i n e w h e t h e r t h e r e a r e two o f f e n s e s o r o n l y
one i s whether each p r o v i s i o n r e q u i r e s proof of a f a c t which

the other does not. Blockburger v. United S t a t e s (1932),
284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Here, the

elements of the crime of unsworn falsification to
a u t h o r i t i e s a r e n o t r e q u i r e d t o be proved t o e s t a b l i s h t h e
crime of c r i m i n a l m i s c h i e f .
To d e t e r m i n e i f o n e c r i m e i s a l e s s e r i n c l u d e d o f f e n s e
of another, the statutory elements of the respective
offenses, not the f a c t s of the individual case, control.

Blockburger v. United S t a t e s , supra. A simple reading of
t h e two s t a t u t e s makes i t c l e a r t h a t t h e e l e m e n t s n e c e s s a r y

to constitute the two crimes are separate and distinct,
h a v i n g l i t t l e i n common.

F i n a l l y , d e f e n d a n t a r g u e s t h a t h e is e n t i t l e d t o a new

trial because several photographs of defendant's damaged

pickup a f t e r i t had b e e n v a n d a l i z e d w e r e a d m i t t e d i n evi-

dence. Defendant c o n t e n d s t h a t a s h e had n o t been c h a r g e d

w i t h committing t h e vandalism t h e p h o t o g r a p h s were e v i d e n c e

of other crimes. I n substance defendant says t h a t the evi-

d e n c e s h o u l d h a v e b e e n e x c l u d e d a s i t s p r o b a t i v e v a l u e was

s u b s t a n t i a l l y o u t w e i g h e d by t h e d a n g e r o f u n f a i r p r e j u d i c e ,

c o n f u s i o n of the issues, o r m i s l e a d i n g of the jury as s e t
forth i n R u l e 403, Mont.R.Evid. A l s o see, S t a t e v . Azure

(1979), 1 8 1 Mont. 47, 591 P.2d 1125; State v. Rollins

( 1 9 6 7 ) , 1 4 9 Mont. 481, 428 P.2d 462. Defendant a r g u e s t h a t

the probative value of these photographs was m i n i m a l as

testimony regarding the vandalizing of the pickup w a s

elicited from several witnesses in the case. Defendant

a r g u e s t h a t under S t a t e v. Bischert ( 1 9 5 7 ) , 1 3 1 Mont. 152,

308 P.2d 969, and Azure, s u p r a , t h e e v i d e n c e s h o u l d n o t have

b e e n a d m i t t e d and h e i s e n t i t l e d t o a new t r i a l .

The S t a t e c o u n t e r s by a d m i t t i n g t h a t t h e p i c t u r e s d o

c o n t a i n e v i d e n c e o f o t h e r crimes b u t t h a t a p r o p e r n o t i c e o f

t h e same was g i v e n t o t h e d e f e n d a n t a s r e q u i r e d by S t a t e v .

J u s t ( 1 9 7 9 ) , 1 8 4 Mont. 2 6 2 , 602 P.2d 957. The S t a t e a r g u e s

t h a t t h e p i c t u r e s show t h e damage d o n e i n b o t h i n c i d e n t s a n d

they were admitted to corroborate the State's theory on

motive of t h e defendant. They w e r e n o t g r u e s o m e a n d would

not inflame the jury.

I n our view t h e p i c t u r e s were p r o p e r l y a d m i t t e d i n t h e

d i s c r e t i o n of t h e t r i a l c o u r t a s proof o f motive of t h e de-

f e n d a n t and t h e r e f o r e t h e i r p r o b a t i v e v a l u e w a s s u b s t a n t i a l
a n d was n o t o u t w e i g h e d by p r e j u d i c e t o t h e d e f e n d a n t .

A££ irmed.

W e concur:

Justices
Mr. Justice Daniel J. Shea, dissenting:

I dissent. I would grant a new trial.
The trial court in effect granted a verbal motion in
limine directing the State not to present evidence that
d.efendant was on parole. Although the State agreed that it
would caution each of its witnesses not to maintain that
defendant was on parole, the State deliberately chose not to
talk to one of its witnesses before calling her to the
witness stand. This witness therefore, was not warned that
she must not mention that defendant was on parole. The
witness twice (or three times) testified that defendant was
on parole. The admission of this evidence in violation of a
court order excluding such evidence, is presumptively
prejudicial. The State has failed to demonstrate that this
prejudicial evidence did not affect the outcome of the trial
and therefore J would grant a new trial.
It makes no difference whether the State deliberately
elicited the forbidden testimony or inadvertently did so.
The harm to the defendant is the same in either case. It can
hardly be denied that evidence that a defendant has already
been convicted of a felony is prejudicial. to his trial. It
was the State's burden, once this inadmissible and
prejudicial testimony was admitted, to prove a lack of
reasonable possibility that the inadmissible evidence
contributed to the conviction. Chapman v. California (1-967),
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The State failed
in this burden and this Court, therefore, has the duty of
reversing the conviction and ordering a new trial.
If the State had tactical reasons for not talking to
witness Leala Gray before she testified, the State
nonetheless was not freed from its duty of warning this
witness not to testify that defendant was on parole. The
State still had a method by which this witness could be given
the admonition. Just before the witness testified, the State
could have asked for a court conference in chambers, and then
the witness could have been called in to chambers, and, at
the State's request, the court could have warned the witness
not to testify that defendant was on parole. But this was
not done and the defendant should not have to bear the burden
of the State's omission by having to satisfy this Court that
the prejudicial evidence was considered in the jury's
deliberations. Rather, it was the duty of the State to show
that it was not considered.
I further emphasize that the procedural context of the
issue of defendant's being on parole, does not lead me to the
conclusion that the prosecutor's conduct was as white as the
driven snow. Defense counsel undoubtedly made the motion in
limine because he knew that defendant's status a.s a parolee
was bound to be injected into the trial. He knew this
because of the record of the first trial and because of the
investigation made before trial that indicated defendant's
parole status was discussed. Therefore, before trial began,
he made the verbal motion in limine.
When witness Leala Gray in a nonresponsive answer to the
State, first mentioned that defenda.nt was on parole, defense
counsel d.id not then move for a mistrial, undoubtedly because
of the fear of further emphasizing the forbidden evidence.
But later in the witnesses redirect examination, she again
mentioned that defendant was on parole. Again, d-efense
counsel d.id not immediately move for a mistrial. Instead., he
waited. until her examination had concluded and then he moved
in chambers, for a mistrial because the forbidden evidence
was placed before the jury. The trial court denied the
motion but upon coming into the courtroom, gave the iury the
cautionary admonition quoted by the majority. This
cautionary instruction did not, however, cure the error, for
the error was committed by the State. This error was
presumptively prejudicial, and the State has not overcome
this presumption of prejudice by a demonstration that the
jury disregarded the fact that he was already a convicted
felon.
When defense counsel made his verbal motion in limine to
forbid the mentioning that defendant was on parole, the
prosecutor expressed his displeasure, but nonetheless
expressed that he would go along with the efforts to
"sanitize" the trial just as the State had made efforts to
"sanitize" the first trial. It appears, however, that in
bringing in the forbidden evidence, the State was not quite
as white as the driven snow.
The State knew that the witness most likely to bring in
defendant's status as a parolee was Leala Gray, and she is
the one witness who the State deliberately did not talk to
before trial thereby avoiding warning the witness not to
mention that defendant was on trial. Although the State
asserts its noncomplicity in bringing the forbidden evidence
before the jury, the context of the questioning leads me to
believe that the assertion of innocence cannot stand.
The first question asked by the prosecutor appears to be
innocent enough, and Leala Gray's answer also appears to be
nonresponsive. Nonetheless, they told the jury defendant was
on parole and the State could have prevented this from
happening (or at least done its part in doing so) by moving
in chambers to have the court warn her not to mention that
.
defendant was on parole. But the State chose not to do so
and therefore viola-ted the order compelling the State to warn
each of its witnesses.
Later, in the redirect examination of Leala Gray, the
prosecutor again asked questions of Leala Gray that no longer
smack of innocence. The prosecutor asked the witness a
second time about witness Stephen Forsman's fears that he
would be in trouble.
"Q. And he [Steve Forsman] told them [the
authorities] that he was afraid he was going to get
in trouble? A. Uh-huh.
"Q. For what? A. Because he knew about the
argument my dad had with C&M over the truck - -
and he
---my - - -on parole."
also knew that dad was
This second series of questions was asked after the
witness had already, during the first series of questions,
di.sclosed that defendant was on parole. By this time, the
prosecutor was on notice that the witness was likely to again
mention that defendant was on parole if the same kind of
questions were directed to her. The prosecutor could only
expect tha.t the same kind of question asked a second time
would again elicit the same response--that defendant was on
parole. And it did. For these reasons, I cannot look a the
prosecutor's conduct as being a.s white as the driven snow.
Here the jury had evidence before it that defendant had
already been convicted of a felony, for his being on parole
could lead only to that conclusion. It was axiomatic that
admission of the defendant's previous criminal record is
prejudicial. See Rule 4 0 4 x ( b ) , Mont.R.Evid., and the
comments to that rule. The prejudice to defendant is
increased where the evidence is admitted without any legal
basis to support its admission. And that is precisely the
situation here. It makes little sense to then impose the
burden on the defendant to prove that the inadmissible and
prejudicial evidence adversely affected the outcome of his
trial. But that is what the majority has done here. The
majority punishes the wrong party for the infraction of the
trial court's order that certain evidence not be given to the
jury. The majority has imposed an impossible burden on the
defendant, a result hardly in accord with sound and fair
rules of trial and. a-ppellate procedure.
I next attempt to cut through the fog of the majority
holding that admission of defendant's criminal record was
harmless error. It is a difficult job because the fog is
thick.
In reviewing defendant's claim of error, the majority
purports to be guided by Chapman v. California (1967), 386
U.S. 1-8, 87 S.Ct. 824, 17 L.Ed.2d -
-
705, in stating the "test

- prejudicial error."
of The majority states that the test is
"whether there is a reasonabl-e possibility the inadmissible
evidence might have contributed to the conviction."
(Emphasis added. ) And yet the majority did not analyze the
evidence in light of this test to determine whether the
admitted inadmissible and prejudicial evidence might have
infected the jury's verdict. Instead, the majority seeks
several reasons to justify its decision not to reverse.
First, the majority relies on the decision of the trial
court refusing to grant a new trial. It is common, of
course, for trial courts to refuse motions for new trials.
And, once the trial court decided not to grant the motion he
had to conclude that the inadmissible and prejudicial
evidence had minimal. impact on the jury. He couldn't very
well say the evidence had a great impact on the jury and
still refuse to grant the motion for mistrial. I doubt,
furthermore, tha.t the trial courtts observations in this
situation should be given much weight. The jury did not have
to drop its teeth before the trial court concluded the
evidence would adversely affect their deliberations.
Second, the majority uses the standard ruling where a
conviction is to be affirmed--the cautionary instruction
given by the tria.1 court cured all. Yet we all know that
once the knife is plunged in, a cautionary instruction does
not cure all. The point is that the State, through
questioning its witness, put the evidence before the jury
that the defenda.nt was already a convicted felon. A

cautionary instruction could not withdraw that information
from the jury's mind.
Third, the majority engages in a remarkable reversal of
roles when it holds that even though the evidence was
prejudicial, the duty is nonetheless imposed on the defendant
to show that the offending evidence contributed to his
conviction. The only way he could do this in a normal case
would be to produce jury affidavits, and this is normally an
impermissible method of demonstrating prejudice. Moreover,
once the jury convicted, jurors would be reluctant to admit
that the inadmissible evidence played a part in their
decision to convict.
Fourth, the majority concludes that Leala Gray was a
hostile witness because she would have no motive to secure
her stepfather's conviction. The fact is, however, that she
a.nd her boyfriend Stephen Forsman testified at the first
trial, and neither of them were called as hostile witnesses.
And neither were they called as hostile witnesses by the
State in the second trial. The implication is that Leala
Gray purposely sought to produce a mistrial by testifying
that her stepfather-defendant was on parole. Rut the
evidence does not support that conclusion. A fair reading of

the trial transcript indicates that the State was more than
happy to get before the jury the fact that defendant was
already a convicted felon. If the State did not want this
information before the jury, it certainly did nothing to
prevent it, and therein lies the evil of the majority
holding. The State is given the benefit of its deliberate
choice not to warn Leala Gray that she must not testify that
the defendant was on parole. This choice flew in the face of
the trial court's order.
Fifth and finally, we get to the catch-all-,the apparent
real justification for upholding the conviction. Apparently
with Chapman 7.
7 California, supra, in mind, the majority
declares : "The evidence supporting defendant's conviction
was substantial, if not overwhelming." If the evidence of
defendant's guilt was overwhelming, it was the duty of the
majority to set forth a.11 of that evidence to describe its
overwhelming character. On the other hand, if the evidence
of defendant's guilt was only "substantial," then the
conviction cannot be affirmed by an application of the
harmless error rule. Substantial evidence is required to
affirm any criminal conviction challenged for legal
sufficiency of the evidence, and substantial evidence is not
enough to avoid a reversal based on application of the test
set forth in Chapman v. California.
I would vacate the iudgment and order a new trial.